2010-015 Adelaide V. George d/b/a Homes By George & a. v. Al Hoyt & Sons, Inc.

ADELAIDE V. GEORGE d/b/a HOMES BY GEORGE &

No. 2010-015

Rockingham

Homes by George building houses for the development. Esther’s Estates was Esther’s Estates in Newton. Rick George, Adelaide George’s son, worked for by George was the developer of a residential real estate development known as The record supports the following facts and procedural history. Homes

Sons, Inc., cross-appeals, from rulings of the Trial Court (McHugh ___________________________ (Homes by George) and Rick George, appeal, and the defendant, Al Hoyt & HICKS, J. The plaintiffs, Adelaide V. George d/b/a Homes by George

Sumner F. Kalman, Attorney at Law, P.C.

MacMillan Law Offices

affirm in part, vacate in part, and remand.

and Sumner F. Kalman on the brief, and Mr. Kalman orally), for the defendant.

MacMillan on the brief and orally), for the plaintiffs.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as in violation of the New Hampshire Consumer Protection Act (CPA), see p. 2 that the defendant committed certain unfair and deceptive business practices oversight of the construction of the . . . bridge.” The plaintiffs further alleged workmanlike or timely manner, including the acquisition, installation and contract in that the defendant had “failed to complete the road in a good, In May 2005, the plaintiffs sued the defendant, alleging breach of

foreclosure for the amount of $300,000. plaintiffs transferred Esther’s Estates to EML Builders via a deed in lieu of done” and the plaintiffs were not paying him. Consequently, on August 22, the president of EML Builders, “called the note” because “performance wasn’t being learning that the bridge would not be installed in July, Leo LaRochelle, the mortgage with EML Builders and to continue with the project. However, after The plaintiffs had planned to use the profits from these sales to pay down the Esther’s Estates and voided their respective purchase and sale agreements. returned deposits to two prospective purchasers of homes to be built in As a result of the delay in installation of the bridge, the plaintiffs

unsuccessfully moved to set aside the jury’s verdict on the plaintiffs’ breach of returned a verdict in favor of the plaintiffs on all liability claims. The defendant determine the liability claims. A jury trial was held in May 2008 and the jury The trial court bifurcated the proceedings to allow a jury to first

but learned that it would take three months for the bridge to be built. contract with Concrete Systems, Inc. for the purchase of a bridge for $21,140 construct and install the bridge. Shortly thereafter, the plaintiffs entered into a That same month, the defendant informed the plaintiffs that it would not 2 defendant to construct and install the bridge as part of the road construction. disagreement arose between the parties as to whether the contract required the permit, the bridge had to be installed by July 2002. In June 2002, a the development of Esther’s Estates. Pursuant to the plaintiffs’ wetlands deposit for a bridge that was necessary to complete the road and, ultimately, Estates. On February 15, the plaintiffs paid the defendant $10,500 as a In January and February 2002, the defendant began work on Esther’s the contract and that the plaintiffs had been unjustly enriched. plaintiffs breached the parties’ agreement by failing to pay amounts due under from Esther’s Estates. The defendant counterclaimed, alleging that the 358-A (2009 & Supp. 2010), and unlawfully removed loam and other top soils

building a road. The contract specified a total price of $79,278.31. certain work in connection with the Esther’s Estates development, including a written contract with the defendant in which the defendant agreed to perform On December 13, 2001, Rick, on behalf of Homes by George, entered into

the property. financed by loans from EML Builders, which were secured by a mortgage on p. 3 I. Defendant’s Cross-Appeal

address the defendant’s cross-appeal and then turn to the plaintiffs’ appeal. contract finding was conclusively against the weight of the evidence. We first to any damages for the removal of loam; and (3) the first jury’s breach of application of the CPA to the facts of this case; (2) the plaintiffs are not entitled The defendant cross-appeals, arguing that: (1) the trial court erred in its

communicated with the jury. motion to recuse. The plaintiffs also claim that the trial court improperly calculating damages and attorney’s fees under the CPA; and (3) denying their the jury’s verdict on damages and substituting its own damages award; (2) On appeal, the plaintiffs argue that the trial court erred in: (1) vacating

to bring a private cause of action under the CPA because Homes by George was facts of this case. First, the defendant argues that the plaintiffs are not entitled The defendant challenges the trial court’s application of the CPA to the

A. CPA Claim

the prosecution of their CPA claim. See the motion to recuse and awarded the plaintiffs $5,000 in attorney’s fees for 3 moved for an award of attorney’s fees under the CPA. The trial court denied recuse himself from any further proceedings in the case. The plaintiffs also Shortly thereafter, the plaintiffs filed a motion seeking to have the judge

attorney’s fees to $25,000. This appeal followed. fees. The court denied the motion as to damages but increased the award of moved to reconsider the court’s damages award and earlier award of attorney’s of the bridge and $14,400 for the unlawful removal of loam. The plaintiffs $56,680, comprised of $42,280 as double damages under the CPA for the cost court set this award aside and instead awarded the plaintiffs damages of awarded the plaintiffs $500,000 for their breach of contract claim. The trial In October 2009, another jury trial was held on damages and the jury

breach of contract claim. The court then scheduled another jury trial on damages for the plaintiffs’ The court set aside the jury’s $835,000 award but upheld the $14,400 award. judgment notwithstanding the verdict and to set aside the damages verdict. unlawful removal of loam claim. The defendant filed a motion for remittitur, plaintiffs $835,000 for the breach of contract claim and $14,400 for the RSA 358-A:10 (2009). breach of contract and unlawful removal of loam claims. The jury awarded the In March 2009, a jury trial was held on damages with respect to the

would determine damages on the CPA claims. contract and CPA claims. Thereafter, the trial court notified the parties that it of law.” Barrows v. Boles p. 4 law will be upheld unless they lack evidentiary support or constitute clear error deceptive acts under the CPA. “The trial court’s findings of fact and rulings of The defendant next contends that it did not engage in any unfair and

491:7-a. espoused by the defendant, it could have expressly done so as it did in RSA intended to limit the protections of the CPA to the definition of “consumers” as docket in superior court, and not the CPA. Moreover, had the legislature (2010). RSA 491:7-a, however, governs the business and commercial dispute CPA, the defendant relies on the definition of “consumer” in RSA 491:7-a development company,” is not a consumer entitled to protection under the In support of its argument that Homes by George, as “an ‘experienced’

in the conduct of any trade or commerce within this state.” The CPA broadly entities from the protections afforded by the CPA. use any unfair method of competition or any unfair or deceptive act or practice RSA 358-A:2 (2009) states that “[i]t shall be unlawful for any person to

as a whole.” Milford Lumber Co. v. RCB Realty the intent of the legislature as expressed in the words of a statute considered suggests that the legislature intended to preclude “experienced” business “On questions of statutory interpretation, this court is the final arbiter of action to business entities. Likewise, nothing in the language of the statute 17. Thus, by its plain language, the CPA clearly provides a private right of other legal entity.” RSA 358-A:1, I (2009); see Milford Lumber Co., 147 N.H. at trusts, partnerships, incorporated or unincorporated associations, and any “Person” also is defined broadly to include “natural persons, corporations, 358-A:10, I (emphasis added); see Milford Lumber Co., 147 N.H. at 17. use of any method, act or practice declared unlawful under this chapter.” RSA

161 N.H. at 82. language that the legislature did not see fit to include. Green Mt. Realty Corp., written and will not consider what the legislature might have said or add Lumber Co., 147 N.H. at 17. We interpret legislative intent from the statute as focus on the statute as a whole, not on isolated words or phrases. Milford State v. Merrill, 160 N.H. 467, 471 (2010). In conducting our analysis we will possible, construe that language according to its plain and ordinary meaning. (quotation omitted). We first look to the language of the statute itself, and, if

(2010). review de novo. Green Mt. Realty Corp. v. Fifth Estate Tower, 161 N.H. 78, 82 this argument, we must interpret the CPA, which is a question of law that we “an ‘experienced’ development company . . . and not a ‘consumer.’” To address similar to the defendant’s conduct in Sideris p. 5 We agree with the trial court that the defendant’s conduct in this case is

defendant that he took the deposit and “put it towards the road.” While he manufacturer. At the liability trial, David Hoyt testified on behalf of the amount as payment for the deposit but never remitted the deposit to the bridge demonstrate that his conduct was so egregious as to violate the CPA. Id as a deposit for the bridge. In February 2002, the defendant received that his motion to dismiss on the grounds that there was insufficient evidence to bridge in January 2002. Thereafter, the defendant billed the plaintiffs $10,500 On appeal, the defendant contended that the trial court erred in denying entered into a contract with the bridge manufacturer for the fabrication of a

was sufficiently egregious as to constitute a violation of the CPA. Id. at 263. work and thereafter misrepresenting that he would return the deposit money the homeowner to enter into a contract with no intention of performing the 262-63. We disagreed and concluded that the defendant’s conduct of inducing

In Sideris

or repair the homeowner’s roof. Id. at 260-61. homeowner and the Manchester police, the defendant did not return the money would return the homeowner’s money, as well as further interactions with the Despite the defendant’s subsequent assurances to the homeowner that he insurance, obtain a building permit or otherwise begin work as promised. Id bills a customer as part of a written contract for a $10,000.00 [sic. Thereafter, the defendant failed to purchase materials, produce proof of conduct. Specifically, the court found that “a jury could conclude that one who perform roof work and had received a deposit for the work. Id Here, the trial court found that RSA 358-A:2 applied to the defendant’s. at 260. 261. There, the defendant had entered into a contract with a homeowner to deceptive business act or practice in violation of the CPA. Sideris, 157 N.H. at

, the defendant was convicted of committing an unfair or

defendant in Sideris. trial court compared the defendant’s conduct in this case to that of the manufacturer has committed an act that would attain a level of rascality.” The towards the construction of a bridge and does not remit said sum to bridge

world of commerce. Hobert, 155 N.H. at 402. would raise an eyebrow of someone inured to the rough and tumble of the rascality test, the objectionable conduct must attain a level of rascality that by the act, we have employed the “rascality” test. Id. at 263. Under the determining which commercial actions not specifically delineated are covered violation of the CPA.” State v. Sideris, 157 N.H. 258, 262 (2008). In 402 (2007). “An ordinary breach of contract claim, for example, is not a commerce falls within its scope. ACAS Acquisitions v. Hobert, 155 N.H. 381, 358-A:2, is broadly worded, and not all conduct in the course of trade or We have previously recognized that the general provision of the CPA, RSA presume the existence of a contract. See p. 6 The doctrines of impossibility of performance and commercial frustration

this portion of the plaintiff[s’] complaint for damages.” We agree. plaintiff[s’] conveyance of the property on August 22, 2002 has no bearing on impossibility of performance and commercial frustration effectuated by the have a factual basis.” The court further found “that the defendant’s claim of The trial court found that the “jury’s verdict for removal of loam does

Blouin v. Sanborn remittitur should be granted is within the trial court’s sound discretion. granted remittitur as to the $14,400 verdict, we find no error. Whether To the extent the defendant argues that the trial court should have

evidence. Id. The amount of the verdict is conclusively against the weight of excessive (or inadequate) if its amount is conclusively against the weight of the award is the responsibility of the trial judge, who may disturb a verdict as

, 155 N.H. 704, 707 (2007). Direct review of a damages

apply to a plea of trespass, this defense is not available to the defendant. under the contract. Because the doctrine of commercial frustration does not from the plaintiffs’ breach of contract count and the defendant’s obligations removal of loam under a count of trespass. This count was separate and apart not arise out of a contract). Here, the plaintiffs sought damages for the impossibility of performance did not apply because the party’s obligations did be completed by [the] August 22, 2002, conveyance date.” Inc. being paved, or any other outstanding contract item that was not required to, 130 N.H. 801, 805 (1988) (doctrines of commercial frustration and the defendant, the plaintiffs “cannot collect damages for the loam, the road not Appeal of Vicon Recovery Systems, conveyance date, the loam would not have yet been spread. Thus, according to project, and because it did not finish the road before the August 22, 2002 construction, loam spreading and seeding is normally done at the end of the loam. It maintains there was evidence that in the sequence of road The defendant next challenges the award of damages for the removal of

B. Unlawful Removal of Loam

not err in its application of the CPA to the facts of this case. See Sideris, 157 N.H. at 264. Accordingly, we conclude that the trial court did defendant’s conduct in this case was similar to that of the defendant in Sideris. (quotation omitted). Here, the record supports the trial court’s finding that the person could have come to the same conclusion.” Barrows, 141 N.H. at 390-91 testimony, we defer to the findings of the trier of fact unless no reasonable plaintiffs that it would not be installing the bridge. “When there is conflicting Rick testified that it was not until June 2002 that the defendant informed the the bridge and was told that the defendant was working on it. Both she and Adelaide testified that she repeatedly asked the defendant about the progress of testified that he told the plaintiffs that he put the $10,500 towards the road, contract with the bridge manufacturer, on behalf of the defendant, for the p. 7 accepted the deposit amount. David Hoyt testified that he entered into a the defendant billed the plaintiffs for the bridge deposit and subsequently the bridge was included in the contract price. Adelaide further testified that defendant was responsible for constructing the bridge and that they believed the defendant to construct a bridge. Adelaide and Rick testified that the than sufficient evidence to support the jury’s verdict that the contract required The record in this case belies the defendant’s argument. There was more the evidence or if it is the result of mistake, partiality, or corruption.” Quinn “We will set aside a jury verdict if it is conclusively against the weight of

review accordingly. only that the jury verdict was against the weight of the evidence, we limit our unsustainable exercise of discretion standard). Since the defendant argues construct a bridge was conclusively against the weight of the evidence. (2003); see only whether the jury’s finding that the contract required the defendant to State v. Lambert, 147 N.H. 295, 296 (2001) (explaining an unsustainable exercise of discretion. Babb v. Clark appeal concerning the admission of parol evidence and, therefore, we address, 150 N.H. 98, 100 verdict unless the decision was made without evidence or the court committed could return.’” We note that the defendant does not raise an argument on omitted). We will uphold the trial court’s decision on a motion to set aside the “‘conclusively against the weight of the evidence, and one no reasonable jury that the verdict was one no reasonable jury could return.” Id finding that the contract required the defendant to construct a bridge was. (quotation “Conclusively against the weight of the evidence should be interpreted to mean 13, 2001 does not include a ‘. . . bridge’” and, thus, the first jury’s liability Bros. v. Whitehouse Finally, the defendant argues that “[t]he written contract dated December, 144 N.H. 186, 190 (1999) (quotations omitted).

$14,400 for this removal. judge sustainably exercised his discretion by not disturbing the award of of the amount of loam removed from the roadway. We conclude that the trial of unscreened loam in 2002. The plaintiffs’ engineer testified as to his estimate testimony was unrefuted. Further, Rick testified as to the cost of a cubic yard property and that they did not see the loam returned to the property. This Adelaide and Rick testified that the defendant removed loam from the

burden. Id. court’s decision. Id. The party seeking to modify the verdict bears a heavy Absent an unsustainable exercise of discretion, we will not reverse the trial upon review is not to attempt to ascertain the one and only correct verdict. Id. the evidence only if no reasonable jury could have reached it. Id. Our task p. 8 $500,000 breach of contract verdict. See CPA and removal of loam claims and not as a substitute for the jury’s court’s final damages award of $56,680 as a verdict for the plaintiffs on their evinced by the court’s doubling of such award. Accordingly, we interpret the amount to be an award of damages for the plaintiffs’ CPA claim. This is as the cost of the bridge, it appears that the court intended its award of this While the court referred to the $21,140 as being included within the contract

said sum [is] added to the verdict the total becomes $56,680.00. the value of that loam was determined to be $14,400.00. When The first jury also found the defendant removed some loam, and doubles that cost and awards total bridge damages of $42,280.00. manufacturer was a violation of RSA 358-A. Accordingly the Court bridge by the defendant and not forwarding it to the bridge first jury also determined that the taking of a deposit for that defendant. There is no dispute that this cost was $21,140.00. The contract between the parties, but that cost was not paid by the determined that the cost of the . . . bridge was included in the breakdown of the Court’s award is as follows. The first jury the total sum of $56,680.00 plus reasonable attorney fees. The favorable to the plaintiff[s], the Court awards [them] a verdict in

Upon consideration of all of the evidence in a light most

which we review de novo). (2007) (explaining that interpretation of a trial court order is a question of law

provable damages, it is those damages that [they] will be awarded by the juries have clearly determined that the plaintiff[s] should recover maximum aside the $500,000 damages verdict, the trial court found that “[b]ecause two $56,680 was a substitute for the jury’s award of $500,000. In its order setting We first address the plaintiffs’ contention that the trial court’s award of

not appeal the trial court’s ruling setting aside the earlier verdict for $835,000. supported by the evidence presented at trial.” We note that the plaintiffs do of $56,680. The plaintiffs maintain that the $500,000 award was “fully of $500,000 on their breach of contract claim and substituting its own award The plaintiffs argue that the trial court erred in vacating the jury’s verdict

A. Breach of Contract Damages

II. Plaintiffs’ Appeal

defendant’s motion to set aside this portion of the liability verdict. against the weight of the evidence and affirm the trial court’s denial of the required. Accordingly, we conclude that the verdict was not conclusively construction of a bridge and, at that time, he was aware that a bridge was p. 9 Robert E. Tardiff, Inc. v. Twin Oaks Realty Trust applicable to the two lots that were the subject of this award.” New Hampshire breach are properly awarded to the non-breaching party in a contract action.” because “there was no testimony as to how much lost profit specifically was reasonably anticipated by the parties as likely to be caused by the defendant’s The trial court found that the jury’s verdict was unreasonable, in part,

We have “held that consequential damages that could have been

result in lost profits for the plaintiffs. have realized that the failure to install the bridge in a timely manner could plaintiffs “had to have th[e] bridge in in June.” Thus, the defendant should from the start that the plaintiffs had those two lots under contract and that the Estates. She presented uncontradicted testimony that the defendant knew 9 hence the profit from two houses that were to be built on lots in Esther’s plaintiffs that it would not install the bridge, the plaintiffs lost the sales and In this case, Adelaide testified that, after the defendant informed the

to EML Builders in lieu of foreclosure. profits and the value of the development at the time they deeded the property including evidence of the cost of the bridge deposit, the total bridge cost, lost

Hawkins v. McGee, 84 N.H. 114, 117 (1929). performed.” Robert E. Tardiff, Inc., 130 N.H. at 677 (quotations omitted); see the same position it would have been in if the contract had been fully damages in actions for breach of contract is to put the non-breaching party in injury. Petrie-Clemons v. Butterfield, 122 N.H. 120, 124 (1982). “[T]he goal of proving that the breaching party had reason to know the facts and to foresee breach in the ordinary course of events; or (2) by the claimant specifically competent evidence from [them] on the issue of consequential damages,” satisfied in either of two ways: (1) as a matter of law if the damages follow the consequential damages flowing from the breach.” They contend “that there was (quotations omitted). The requirement of reasonable foreseeability may be the return of the deposit, but the cost of the . . . bridge in addition to the contract between the parties, and, therefore, they “were entitled not only to, 130 N.H. 673, 677 (1988) The plaintiffs argue that the failure to build the bridge was a breach of

discretion. Babb, 150 N.H. at 100. aside the verdict unless it is without evidence or an unsustainable exercise of return. Id. We will not overturn the trial court’s decision on a motion to set against the weight of the evidence it must be one no reasonable jury could relation to any of the evidence in the case.” For a verdict to be conclusively (2008). Here, the trial court determined that the $500,000 verdict “had no mistake, partiality, or corruption.” Guyotte v. O’Neill, 157 N.H. 616, 620 is conclusively against the weight of the evidence or if it is the result of $500,000 verdict. As stated above, “a jury’s verdict may only be set aside if it We next address whether the court erred in setting aside the jury’s p. 10 In its initial order setting aside the verdict, it ruled that there was “no rational The trial court’s ruling with respect to this portion of damages is unclear.

purchasers orally agreed to extend the time for performance. Cf writing. However, the plaintiffs offered testimony at trial indicating that both $1,003,700 for the value of the property they lost on the deed transfer. required to install the bridge, and that neither contract was extended in plaintiffs argue that the evidence supports an award of damages up to agreements had expired before the time period in which the defendant was The court is correct that the date for transfer of title in the purchase and sale for the value of the property the plaintiffs lost on the deed transfer. The unsustainable unless the plaintiffs proved that they were entitled to damages the prospective lot purchasers executed extensions to their written contracts.” the bridge deposit and the total bridge cost, the jury’s $500,000 verdict is in which “the defendant was required to install the . . . bridge,” and “[n]either of evidence to support breach of contract damages in the amount of the cost of purchase and sale agreements for the two lots expired in 2001, before the time 10 The trial court further found the verdict unreasonable because the However, even assuming that the plaintiffs also presented sufficient

have found lost profit damages between $200,000 to $250,000. this rule.”). There is evidence in the record from which a reasonable jury could mere fact that a date is stated in the instrument is not sufficient alone to alter specifically so stated, time is not to be considered as of the essence” and “[t]he See Guy v. Hanley, 111 N.H. 73, 75 (1971) (“The general rule is that unless specified that time was of the essence with respect to time for performance. was not going to order and install the bridge. Moreover, neither contract the two prospective purchasers in June 2002 after learning that the defendant and of estoppel”). Indeed, Adelaide testified that she returned the deposits to modification “when carried into effect on principles of accord and satisfaction of contract required by statute of frauds to be in writing sustains the Dodge profits on these two houses were reasonably certain., 83 N.H. 47, 49 (1927) (performance or reliance on an oral modification least $100,000. Based upon this evidence, we find that the plaintiffs’ lost. Warren v. phases of Esther’s Estates and that the profit margin for those houses was at testified that the plaintiffs had already built thirteen houses in the earlier was between $100,000 and $125,000 but no less than $100,000. She further $277,900 and $276,900 and that the expected profit on each of the two houses Here, Adelaide testified that the two purchase and sale contracts were for

profits were reasonably certain to result.” Petrie-Clemons, 122 N.H. at 125. an award of damages for lost profits if sufficient data existed indicating that approximation. Akwa Vista v. NRT, 160 N.H. 594, 602 (2010). “We will uphold certainty, and the method used to compute them need not be more than an law, however, does not require that damages be calculated with mathematical issue is of no consequence. Cf p. 11 damages trial.” We conclude that the trial court’s error, if any, respecting this jury after it reached its decision, but prior to publication, in the second “that the trial court improperly engaged in an ex parte communication with the In view of our ruling above, we need not address the plaintiffs’ argument

award of damages beyond the lost profits on the lost home sales. remand on this issue for a determination whether the record supports an unsupportable, we vacate the trial court’s ruling setting aside the verdict. We clarification of the trial court’s intent in finding this aspect of damages damages and the record submitted on appeal, which fails to provide In light of the trial court’s arguably conflicting rulings on this aspect of

its actions or inactions. purpose for which the contract was made relieving the defendant of liability for foreclosure constituted a supervening event which would have destroyed the that the plaintiffs’ action of deeding the property to LaRochelle in lieu of the order appears to rely upon the doctrine of commercial frustration; that is, property lost on the deed transfer but failed to mitigate their damages. Finally, suggests that the plaintiffs presented evidence of damages for the value of the sufficient evidence to prove damages for the value of the lost property. It then Thus, the court’s order initially indicates that the plaintiffs failed to present

elements in this case. plaintiff[s] simply cannot meet [their] burden on either one of these were caused by the actions or inactions of a defendant, the a plaintiff must prove the amount of damages and must prove they

(finding any error on part of trial court harmless where defendant argued that

[their] property was an intervening, super[s]eding cause. Because loss of $700,000.00. The plaintiff[s’] decision to in effect give away did not cause the plaintiff[s] to suffer what may well have been a the time of the transfer. Thus the defendant’s breach of contract appraiser that the property was actually worth $1 million dollars at $300,000.00. Yet at trial the plaintiff[s] produced evidence from an

banker reflected the consideration of the transfer to be Moreover, the tax stamps on the deed from the plaintiff[s] to [their] defendant would have been able to have installed the . . . bridge. The decision to surrender the property was only 30 days after the man who had loaned [them] money in order for [them] to develop it.

the reckless business decision to surrender [their] property to the take any reasonable steps to mitigate [their] damages. [They] made The evidence clearly showed that the plaintiff[s] in this case did not

however, the trial court observed that: property they lost on the deed transfer. At the conclusion of the same order, basis” for the jury to find that the plaintiffs proved damages for the value of the p. 12 Barrows upheld unless they lack evidentiary support or constitute a clear error of law.” RSA 358-A:10, I. “The trial court’s findings of fact and rulings of law will be

$1,000, whichever is greater. plaintiff, recovery shall be in the amount of actual damages or as the court deems necessary and proper. If the court finds for the for damages and for such equitable relief, including an injunction, practice declared unlawful under this chapter may bring an action

Any person injured by another’s use of any method, act or

The CPA provides:

the RSA 358-A damages calculation was error.” with regard to the cost of the bridge” and “[i]ncluding the cost of the bridge in precluded by law. The defendant argues that the plaintiffs “suffered no loss to EML Builders and that any damages incurred after the conveyance are of the deposit plaintiffs did not pay the full cost of the bridge prior to conveying the property their CPA claim. However, the CPA claim related to the defendant’s acceptance “‘actual’” bridge damages under the CPA. The defendant contends that the 12 plaintiffs the entire cost of the bridge in the amount of $21,140 as damages for Conversely, the defendant argues that the plaintiffs can prove no Here, contrary to the plaintiffs’ assertion, the trial court awarded the

bridge. plaintiffs received a $10,500 credit from the defendant for the deposit on the for the cost of the bridge. On the contrary, the record suggests that the the entire cost of the bridge nor is there any evidence that they remain liable of the bridge. There is no evidence in the record that the plaintiffs in fact paid of the bridge or to install the bridge. The CPA claim did not involve the full cost

for the bridge and its failure to pay the manufacturer for the cost

, 141 N.H. at 389 (quotation omitted).

B. CPA Damages

including, but not limited to, the $500,000 jury verdict. deposit, the cost of the bridge, and all of their consequential damages, contend that the computation of damages should have included the cost of the of the “actual damages” as provided for by RSA 358-A:10. Specifically, they only to the amount of the . . . bridge deposit” and did not take into account all damages under the [CPA] claim” was erroneous “because it limited damages The plaintiffs next argue “that [the] trial court’s method of computation of

trial court). plaintiff prevailed on other claims which supported the relief ordered by the the trial court’s decision was based on an erroneous premise because the authority to decide claims brought under RSA chapter 358-A.” Hair p. 13 that “under the plain language of the statute, the court is vested with the C. Attorney’s Fees word “court” to “refer[] to a judge rather than a jury” and, as such, have found willful or knowing violation of the CPA. We have previously interpreted the mandates that a jury shall determine whether the defendant’s conduct was a less than 2 times, such amount.” RSA 358-A:10, I. Nothing in this language knowing violation of this chapter, it shall award as much as 3 times, but not attorney’s fees can only be related to the CPA claim. the use of the method of competition or the act or practice was a willful or out of a common set of facts. The defendant contends that the plaintiffs’ The damages provision of the CPA mandates that “[i]f the court finds that their CPA claim as well as their common law claims because all claims arise attorney’s fees. The plaintiffs argue that they are entitled to attorney’s fees for The plaintiffs next argue that the trial court erred in its award of

defendant’s conduct was a willful and knowing violation of the CPA. 13 Implicit in the trial court’s award of double damages is a finding that the court ultimately awarded the plaintiffs double damages for their CPA claim. damages under the CPA and affirmed the first jury’s finding of liability. The CPA. The trial court then informed the parties that it would determine Here, the first jury determined that the defendant’s conduct violated the

discuss it in their briefs, we address it. Excitement v. L’Oreal U.S.A., 158 N.H. 363, 369 (2009). award, because this issue may arise on remand and because both parties actual damages. Although we have vacated the trial court’s CPA damages knowing violation of the CPA, the plaintiffs were only entitled to recover their jury was never asked nor found that its conduct constituted a willful or court’s award of double damages. The defendant maintains that since the first constituted a ‘willful’ or ‘knowing’ violation of the CPA” to support the trial The defendant maintains that there was no finding that its “acts

their arguments concerning consequential damages to the trial court. court’s award of damages under the CPA, upon remand the parties may direct of consequential damages under the CPA. Given that we are vacating the trial which permits recovery “in the amount of actual damages,” authorizes recovery trial court has not addressed, the legal issue of whether RSA 358-A:10, I, court erred by not awarding them. The parties have not fully briefed, and the they are entitled to consequential damages under the CPA, and that the trial awarded, if any, under the CPA. We note that the plaintiffs also argue that the CPA and remand to the trial court for a determination of damages to be damages for the full cost of the bridge, we vacate the award of damages under Accordingly, since the trial court erred in awarding the plaintiffs p. 14 D. Recusal

the trial court’s adjudication of attorney’s fees. offer no reasons as to why this amount was unreasonable. We find no error in the plaintiffs slightly over one-third of the total fees requested. The plaintiffs award of attorney’s fees on the entirety of the litigation and ultimately awarded required by the contract. The record reveals that the trial court based its and failing to pay the manufacturer for the bridge or install the bridge as finding that the defendant acted in bad faith by accepting the bridge deposit defendant order and install the bridge. It further supports the trial court’s The record supports the plaintiffs’ right under the contract to have the discretion in awarding the plaintiffs $25,000 in attorney’s fees is sustainable. After reviewing the record, we find that the trial court’s exercise of

amount of $25,000. misconduct,” the court awarded the plaintiffs reasonable attorney’s fees in the complex.” Accordingly, “[b]ased upon the degree of the defendant’s “each trial was of very limited duration and the issues were not overly The court recognized that “three jury trials have in fact taken place,” however,

attachment in the amount of $50,000 despite their request for an attachment omitted.) They also argue that the trial court’s grant of a real estate case and therefore was an unsustainable exercise of discretion.” (Citation special jury verdict . . . with the substitution of the trial court’s valuation of the trial court’s “latent bias . . . resulted in the trial court setting aside the second special jury verdicts on the issue of damages.” The plaintiffs contend that the portion of the case and ultimately in the setting aside of not one but two the case, reflected by its, sua sponte, bifurcation of the liability and damages motion for recusal because the “trial judge had a latent bias from the outset of 14 Finally, the plaintiffs argue that the trial court erred by denying their contract.

something that the defendant was required to do under its for the cost of that item or to install it as the jury has found was deposit for the . . . bridge and its failure to pay the manufacturer found bad faith on the part of the defendant in its acceptance of a

the context of the entirety of the litigation. The court noted that it had Here, the trial court reviewed the plaintiffs’ request for attorney’s fees in

judicial exception to the general rule that precludes recovery of such fees.” Id. authorized by statute, an agreement between the parties, or an established prevailing party may be awarded attorney’s fees when that recovery is give substantial deference to a trial court’s decision on attorney’s fees. Id. “A absent an unsustainable exercise of discretion.” Blouin, p. 15 155 N.H. at 708. We “We will not overturn the trial court’s decision concerning attorney’s fees 15

DALIANIS, C.J.