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2009-263, MacThompson Realty, Inc. v. City of Nashua
did not violate the statute of frauds.
See RSA 506:1 (1997). We affirm.
the plaintiff, MacThompson Realty, Inc. (MacThompson), and the ruling that it ruling of the Superior Court (Lynn, C.J.) enforcing a settlement agreement with HICKS, J. The intervenors, Francis and Marguerite Ruel, appeal the
on the brief), for the intervenors, Francis and Marguerite Ruel. Brennan, Caron, Lenehan & Iacopino, of Manchester (William J. Quinn
Office of Corporate Counsel, of Nashua, for the defendant, filed no brief.
the plaintiff. Prunier & Prolman, P.A., of Nashua (Gerald R. Prunier on the brief), for to press. Errors may be reported by E-mail at the following address:
Opinion Issued: April 20, 2010 Submitted: February 17, 2010
CITY OF NASHUA
v.
page is: http://www.courts.state.nh.us/supreme. MACTHOMPSON REALTY, INC.
No. 2009-263 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as appraisal.
include a specific price and did not require the intervenors to accept the
2
agreement. they argued that the agreement violated the statute of frauds because it did not
was not credible and that they did in fact sign a valid agreement. making additional copies, the court misplaced the agreement. obligating them to sell their homes, the trial court found that their testimony Ruels waited in another room. Although the Bangs and the Ruels both denied signing a settlement agreement room to discuss a potential settlement agreement while the Bangs and the
appraised prices. They further claimed that they never signed a settlement agreement was lost, it is unenforceable under the statute of frauds. Further, The Bangs and the Ruels also claimed that because the settlement
only copy of the agreement to Judge Sullivan. At some point thereafter, before
issue of whether the parties had in fact reached a settlement agreement. and Attorney Roy Duddy, who represented the Bangs, met in one conference In 2009, the parties appeared before the Trial Court (Lynn, C.J.) on the an appraiser.
neither they nor the Ruels wanted to sell their properties according to the homes. After the Bangs received an appraisal that they thought was too low, because they were concerned that the addition would affect the value of their
agreement, which all of the parties signed. Attorney Duddy then submitted the After the parties agreed to the terms, Attorney Duddy prepared an MacThompson, Attorney David Connell, who represented the City of Nashua, facilitate settlement discussions. Attorney Gerald Prunier, who represented that MacThompson would purchase their homes at a price to be determined by told the Bangs and the Ruels that one term of the settlement agreement was proposal to the Ruels, who were self-represented. Attorney Duddy specifically proposal to their respective clients. Additionally, Attorney Duddy presented the After establishing the terms of an agreement, the attorneys presented the Janet Bangs lived near the work site. They petitioned to intervene in the case
September 2007. On the second day of the hearing, the court called a recess to The matter came before the Trial Court (Sullivan, J.) for a final hearing in
commercial building in Nashua. Francis and Marguerite Ruel and David and issued by the city preventing MacThompson from adding a third story to a Nashua. The petition requested a ruling that would reverse a “stop work” order MacThompson filed a petition for declaratory judgment against the City of The following facts are supported by the record. On January 30, 2007, submitted the only copy of the settlement agreement to the court.
agreement that all of the parties signed. Attorney Duddy also asserted that he Duddy, previously the Bangs’ attorney, testified that he drafted a settlement he stated, “Everyone. The attorneys and all of the parties.” Likewise, Attorney Frank and Marguerite Ruel and Mac Thompson [ confirm the agreement that was reached between David and Janet Bangs, 3
some memorandum thereof, is in writing.” RSA 506:1; As a preliminary matter, we note the applicable standard of review. We
agreement. When the court asked Attorney Prunier who signed the agreement,
had reached a settlement agreement. Specifically, it stated, “This note is to
in fact, exist, is supported by the evidence. We conclude that the trial court’s finding, that a written agreement did,
contract for the sale of land unless the agreement upon which it is brought, or participation as intervenors in the matter . . . .” the Hillsborough County Superior Court South in reference to their
sic] Realty, Inc. last Friday at
Duddy. Attorney Prunier testified that Attorney Duddy wrote a settlement of the agreement through the testimony of Attorney Prunier and Attorney Prunier and confirmed that MacThompson Realty, the Bangs, and the Ruels on September 10, 2007, into evidence. The letter was addressed to Attorney Additionally, the plaintiffs introduced a letter, written by Attorney Duddy
the price calculated by the appraiser. statute. Finally, the court found that the intervenors were required to accept provision provides, in part, that “[n]o action shall be maintained upon a
Here, the trial court found that MacThompson produced direct evidence
Commercial Prop’s, 134 N.H. at 491. only if direct evidence establishes that it, in fact, did exist. Riverwood (2001). If a written agreement is lost or destroyed, the court may enforce it
see also RSA 477:15
appraisal to be completed in the future is sufficiently definite to satisfy the enforcement of the lost settlement agreement. The relevant statute of frauds N.H. 487, 490 (1991). The intervenors argue that the statute of frauds bars or unsupported by the evidence.” Riverwood Commercial Prop’s v. Cole, 134 will not disturb a trial court's decision unless it is erroneous as a matter of law “
I
contract that sets the price of realty with reference to the results of an though a specific sales price was not included in the settlement agreement, a satisfy the statute of frauds, did in fact exist. The court also ruled that even misplaced, direct evidence established that a written agreement, sufficient to The court determined that although the settlement agreement was numerous other jurisdictions have. In 4
from an agreement. is not ordinarily admissible to supply an essential term that has been omitted
of a specified appraisal. The court reasoned that “[t]
property by a future appraisal is sufficient to satisfy the statute of frauds,
N.W.2d at 763. could be agreed upon by the appraisers.” Lamore Restaurant Group, 748 property cannot be identified without resort to parol evidence. Parol evidence definite because both parties specifically agreed to pay or accept whatever price will necessarily result in the determination of the price, that is enough.” he price term is sufficiently not be implied.” Rather, as long as the “contract prescribes a method which upheld a contract that set the price for sale of realty by reference to the results Akers, 748 N.W.2d 756, 763 (S.D. 2008), the Supreme Court of South Dakota
Lamore Restaurant Group, LLC v.
Although we have not specifically held that a contract setting the price of
Id. at 461. evidence may be used to show to what things and matters the contract refers.” not show the intent of the parties if the contract does not show it, such legal ruling, regarding the statute of frauds, Robinson Company, 83 N.H. at 460-61. Further, “[w]hile parol evidence may that an essential term of the agreement is missing. We review the trial court’s determinable from the settlement agreement; therefore, the price of the
does not mean that the contract itself must fix the price or that the price may recovery.” (1928), we held that although price is an essential term of an agreement, “that be set by an appraisal. In Robinson Company v. Drew, 83 N.H. 459, 460 the settlement agreement because it provides that the price of the property will To the contrary, however, the purchase price is readily determinable from express the essential terms of the contract.”
Maisch v. Cobb, 76 N.H. 62, 63 (1911).
homes. Since the agreement does not include a purchase price, they argue The intervenors contend that the price of their property is not
Briand v. Wild, 110 N.H. 373, 375 (1970).
price and if it is neither stated nor determinable . . . the Statute of Frauds bars 727 (2008) (quotation omitted). “An essential of any such agreement is the
Greene v. McLeod, 156 N.H. 724,
In order to meet the requirements of the statute, “the writing must
Houston Wire & Cable Co., 147 N.H. 685, 688 (2002).
de novo. See PMC Corp. v.
statute of frauds because it refers to an appraiser setting the price of the the statute. The intervenors argue that the agreement is contrary to the We next consider whether the absence of a specific sales price violates
II 5 price determined by the appraiser if it was deemed completely unreasonable.
Attorney Prunier admitted that the Ruels would have a right to contest the obligation. would constitute legal grounds for avoiding any contractual
on the issue of whether the parties had reached a settlement agreement,
done by Crafts absent some extraordinary circumstances that
BRODERICK, C.J.
, and DALIANIS and DUGGAN, JJ., concurred.
Affirmed.
of law. Because we agree with the trial court’s reasoning, we find no error as a matter
because “the appraisal was not the final sales price.” When appearing in court
the properties in question for the price indicated in the appraisal Thompson [sic] to buy, and the Bangs and the Rules [sic] to sell, intent of the parties without the need to resort to parol evidence. [T]he parties reached a binding agreement that required Mac
The trial court found that:
The intervenors further argue that the agreement is not enforceable
Company, 83 N.H. at 461.
Robinson
prescribes a method to determine the price of the homes and establishes the customarily done to evaluate real estate. sufficiently definite to satisfy the statute of frauds. Here, the contract We hold that a contract which sets a price by a future appraisal is
hindrances in the appraisal process, the court found the contract valid. Id. appraisers would determine the purchase price. Id. Despite the possible acknowledged that the contract was flawed because it did not specify how the (App. Div. 1991), appeal denied, 592 N.E.2d 801 (N.Y. 1992). The court of the property. Marder’s Nurseries, Inc. v. Hopping, 573 N.Y.S.2d 990, 995 contract even though it merely assigned appraisers to determine the price term Similarly, the New York Supreme Court, Appellate Division, upheld a
Miller, 224 S.E.2d at 917.
concluded that the appraisal method is a suitable option since appraisals are would be sold at a price to be determined by an appraisal. The court Supreme Court of Georgia upheld an option contract providing that property Likewise, in Miller v. McCullough, 224 S.E.2d 916, 917 (Ga. 1976), the