2011-219, Axenics, Inc. f/k/a RenTec Corporation v. Turner Construction Company & a.

Supp. 2012). We affirm in part, reverse in part, vacate in part, and remand. Hampshire Consumer Protection Act (CPA) claim s, see RSA ch. 358 - A (2009 & failure to find the defendants liable on its breach of contract and New appeals, challengin g the amount of damag es awarded and the trial court’s the plaintiff, Axenics, Inc. f/k/a RenTec Corporation (Axenics). Axenics cross finding them liable on a theory of unjust enrichment and awarding damages to Company (Tur ner), appeal a ruling of the Superior Court (McNamara, J.) Sales Corporation (Sales) (collectively Stryker), and Turner Construction BASSETT, J. The defendants, Stryker Biotech, LLC (Biotech) and Stryker

Rosen on the brief, and Mr. Anderson orally), for the defendant s. Pierce Atwood LLP, of Portsmouth (David A. Anderson and Mark B.

David N. Cole, of Hanover, by brief and orally, for the plaintiff.

No. 2011 - 219 Merrimack

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, Concor d, 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 p. 2 22 as 2

writing about what caused the delay within forty - eight hours “of the prosecution o r completion of the” work, it was required to notify Turner in was “delayed, obstructed, hindered or interfered with in the commen cement, scope of [th e] subcontract.” The sub contract further provided that if Axenics concurrence before proceeding with any Work believed not to be within the to “provide [a] written request for change and obtain Turner’s written Likewise, w hen Axenics initia ted requests for changes to the work, it had

the additional work w[ould] become part of [Axenic s ’] scope of work.” Turne r would “assign a fair and reasonable value for the additional work, and “[p]roposals for additional work” w ere not received within five calendar days, Turner within five (5) calendar days of the receipt of the directive.” If the “accompanied by accurate writte n estimates of the cost” and “be submitted to unit rates where applicable.” The “lump su m prop osal” had to be accompanied by an itemized breakdown of material, using established contract ticket s for material,” Axenics was to “submit a lump sum proposal the value of such work [was] to be determined other than by actu al signed In the event that Turner directed additional work to be performed “and

such an agreement [c ould] be reached.” (Superintendent’s Instructions to Subcontractors) for record purp oses until could not reach a n agreement at that time, Turner could issue “an S.I.S. required to inform Turner before proceeding. In the event that the parties I f Axenics believed “work to be beyond the scope of” the subcontract, it was representative shall be understood to be included as part of this Subcontract.” personnel by Turner’s S uperintendent, Engineer, or other duly author ized provided that “all instructions given to [Axenic s ’] supervisory or ma nagement as w ell as changes to the scope of the w ork and its cost. The subcontract T he sub contract contemplated the po ssibility of delays and hindrances

June p. 2 2, 2005. installation, was December 2004. Ultimately, Axenics ’ last day on the job was The “mechanical completion” date for the facility, including the process pip e Both parties agreed that the facility w ould be completed as quickly as possible. “process pipe” at the facility. The original subcontract price was $1,992,506. furnish labor, materials, equipment, and services for the installation of On Ap ril 15, 2004, Axenics entered into a subcontract with Turner to

semiconductor industries.” gas and liquid distribution systems in the biotechnology, pharmaceutical, and Axenics provides “manufacturing, installation, and field services for ultrapure located. Turne r was hired as the general contractor to build the facility. Lebanon. Biotech operates the facility, and Sales owns the property where it is case arises out of the construction of a biotech facility (facility) in West Th e trial court found, or the record establishes, the following facts. Th is p. 3 3

Axenics was instructed to continue working and that “SISs [w ould] follow.” piping, which Axenics believed to be a “change in scope.” When this occurred, addition, there were oc casions when Turner requested changes to the process required Axenics personnel to work overtime to complete the work on time. In of the facility. Some of the delays caused the schedule to be compress ed and Several delays, which affected Axenics’ work, arose during construction

as well as implementing “coordination[-] driven images.” responsible for producing, maintaining, and approving “coordination drawings” changes required due to field coordination issues”; and ( p. 3 3) Axenics was process”; (2) the engineer wa s responsible for supporting and reviewing “design was responsible for scheduling, facilitating, and controlling the “coordination coordination plan.” The project coordination plan provided that: (1) Turner “[p]roj ec t coordination procedures [were] outlined in [an] attached project and [mechanical, electrical, and plumbing] services p rior to fabrication,” and Axenics’ “work [was] to be coordinated with the structural, architectural

the work. productivity disruptions and interferences with the performance of Turner, delays, charges, acceleration, loss of efficiency or or related to the [subcontract], including the breach thereof by other indirect damages, costs or expenses in any way arising out of recovery of overhead (including home office overhead), and any recover lost profit (except for profit on work actua lly performed), [Axenics] expressly waives and releases all claims or rights to Notwithstanding any term or provision herein to the contrary, such delay, obstruction, hindrance or interference. behalf of [Axenics], actually received from the Owner on account of and then only to the extent of the amount, if any, which Turner on Documents for such delay, obstruction, hindrance or interference, compensation or damages from the Owner under the Contract actually recovered correspondin g cost reimbursement, interference to the Work except to the extent that Turner has compensation or damages for any delay, obstruction, hindrance or that it shall not be entitled to nor claim any cost reimbursement,

In addition, in the subcontract, Axenics agreed:

hindrances or interferences.” precedent to [Axenics ’] rights in connection with any such delays, obstructive minimize the consequences thereof.” This notice was “an essential condition have anticipated or avoided t he delay and had “used all available means to commencement thereof.” Axenics also had to demonstrate that it could not p. 4 4

equipment, and serv ices as well as enhanced damages under the CPA and unjust enrichment. It sought $1.7 million in damages for materials, labor, also brought claims against Turner and Stryker for violation o f the CPA and had breached the subcontract when it failed to pay Axenics sums due. Axenics In November 2007, Axenics sued the defendants, asserting that Turner

the requested funds. it agreed with several of them. Subsequently, Stryker refused to pay Axenics to some of Axenics’ request s for additional payment, but also told Stryker that Before the presentation, Turner representatives provided Stryker wit h rebuttal requested funds, and Axenics made its presentation to Stryker in April 2005. assisted A xenics in preparing a presentation for Stryker regarding the requested that Axenics submit backup d ocumentation for its requests. T urner Stryker questioned some of the work for which Axenics sought payment and worked with Turner to obtain payment from Stryker for these change orders. email “rej ecting the claim.” However, during the next several months, Axenics scope of the contract. Turner initially responded to Axenics’ request with an change order s related to delays and work that it believed to be outside the I n late 200 p. 4 4, a dispute arose when Axenics notified Turner of additional

not pay this change order. $ p. 4 435,929, which it characterized as a “Claim Settlement.” T he defendants did Axenics later submitted a ninth change order, in the amount of

lump sum change order amount stated herein. of work as set forth by this change order are included within the original contract schedule with the inclusion of the adjusted scope subcontract remain unchanged and that all costs to maintain our Please note that all other terms and conditions of the

claim in the future. Project and [Axenics] recognizes that there is no basis for any such delays, inefficiencies or similar demands as sociated with this Order includes compensation to [Axenics] for any and all effects, progress of the project in the future. As a result, this Change to this Project and the potential im pact of the added work on the acknowledges that it has reviewed the progress of the Work related Through acceptance of this Change Order, [Axenics]

following language: $2, p. 5 518,078. The change orders that increased the contract price contained the which upon approval by Turner and Stryker, increased the contract price to had to be approved by Stryker. Axenics submitted eight written change orders, order requests. Change order requests, as well as applications for payment, During construction, Turner met with Stryker weekly to review change 5

defendants violated the CPA. We first address the parties’ arguments regarding Axenics maintain s that the trial court erred in failin g to find that the measured by its costs plus reasonable profit, or $1.7 million.” In addition, was abandoned or breached, the trial court erred by not awarding it “damages [s] ubcontract.” Axenics also clai ms that, regardless of whether the s ubcontract argues that the trial court should have found “that Turner br eached the that the parties had abandoned the s ubcontract. In the alternative, Axenics Axen ics cross - appeals, arguing that the trial court erred in failing to find

compromise. Hampshire Rule of Evidence 408 by failing to exclude evidence of an offer to purportedly received.” Finally, they argue that the court violated New devoid of any evidence showing the value of any extra - contractual benefit [they] receive a benefit that would be unconscionable to retain,” and “the recor d was the court erred in findin g them “liable for unjust enrichment when they did not that con tract was neither abandoned nor breached.” They further contend that governed the precise subject matter of Ax enics’ unju st enrichment claim, and Axenics to recover “in unjust enrichment because a valid, express contract On appeal, the defendants argue that the trial court erred in allowing

cross - appeal followed. counterclaims, including their request for att orney’s fees. This appeal and the CPA. Finally, the court ruled against the defendants on all of their CPA claim, the court ruled “that neither Stryker’s nor Turner’s actions” violated a warded Axenics $ 1,080, 000 in restitution damages. With respect to Axenics’ enrichment claim, concluded that the defendants were jointly liable, and contract claim. However, the trial court ruled in favor of Axenics on its unjust had abandoned the subcontract and ruled against Axenics on its breach of T he court issued a lengthy decision in which it found that neither p arty

contractual duties. other subcontractors, which hindered and delayed Axenics ’ performance of its delaying payments and failing to coordinate Axenics’ work with that of the Axenics further alleged that Turner breached the subcontract by i ntentionally the benefits it conferred on Turner and Stryker through its work at the” facility. subcontract, making unjust enrichment “available to compensate [Axenics] for Axenics, this reflected the parties’ mu tual agreement to abandon the [Axenics], rather than declaring breach, continued working.” According to many material respects” th at Turner had “abandoned the [s]ubcontract, and Axenics all eged that “Turner deviated from the . . . subcontract. . . in so A t the conclusion of the eighteen - day trial, in its post - trial memorand um

contract and violations of the CPA. attorney ’ s fees. In response, the defendants counterclaimed, alleging breach of p. 6 6

number o f change orders that caused the work and its cost to differ from that an intention to abandon the subcontract. We disagree. Although there were a provisi ons of the subcontract, and it argues that the parties’ conduct evinced instances where Axenics and Turner deviated from, or failed to follow, Rather, in support of its abandonment theory, Axenics points to specific In this case, there was no express agreement to abandon the contract.

matter de novo. See id. the court misapplies the law to its factual findings, however, we will review the Family Enters. v. Town of Rye, 157 N.H. 453, 45 p. 6 6 (2008) (quotation omitted). If court’s ruling on a mixed question unless it is clearly erroneous.” Hogan Con/Fluor Daniel, 154 S.W.3d at 335 (same). “We will not overturn the trial abandonment has occurred generally presents a question of fact.”); Fru - J.A. Jones Const., 89 P.3d at 1019 (“The issue of whether contract abandonment is a question of fact.” 17A Am. Jur. 2d Contracts § 52 9. But see constitutes an abandonment is a matter of law, and whether there has been an “Abandonment of a contract is a mixed question of law and fact; what

Sec. Indem., 124 Cal. Rptr. 3d 1, p. 6 6 (Ct. App. 2011). of numerous changes to the contract ove r time.” Clarendon America v. General Abandonment of a construction contract may occur because of “the aggregation of the contract and the other party acquiesces in that behavior.”). as aba ndoned when one party acts in a manner inconsistent with the existence 17A Am. Jur. 2d Contracts § 528 (2004) (“A contract will general ly be treated inconsistent with the continued existence of the contract.” (quotation omitted)); 2003) (“A contract may be [abandoned] by acts or conduct of the parties 2004); see also Harris v. IES Assoc iates, Inc., 69 P. 3d 297, 3 08 (Utah Ct. App. Con/Fluor Daniel v. Corrigan Brothers, 154 S.W.3d 330, 335 (Mo. Ct. App. and inconsistent with an intent to be further bound by the contract.” Fru relied on to constitute an ab andonment, they must be positive, unequivocal (quotation omitted) (applying Missouri law). “Where acts and conduct are Gere Technical v. Fru - Con/Fluor Daniel, 380 F.3d 447, 455 (8 th Cir. 2004) consent or by implied consent through the actions of the parties.” O’Brien & 294, 296 (1966). A bandonment “may be accomplished by express mutual McGovern Bovis, 89 P.3d 1009, 1019 (Nev. 2004); see Young v. Barry, 107 N.H. terms of the contract by mutual consent.” J.A. Jones Const r. v. Lehrer “Generally, contract abandonment oc curs when both parties depart from the ‘guideline’ basis if at all and was never adhered to by any of the parties.” subcontract was abandoned because it was “referred to by all parties on a A xenics argues that the trial court erred in failing to find that the

I. Contract Abandonment

regarding unjust enrichment, damages, and the CPA. abandonment and breach of contract and then turn to the ir arguments p. 7 7

to include every subsidiary question fairly comprised therein. document. The statement of a question presented will be deemed shall be t he same as the question previously set forth in the appeal exactly as it was in the appeal document, the question presented While the statement of a question [in a brief] need not be worded

provides, in relevant part not ab andoned the subject Subcontract?” S upreme Court Rule 16(3)(b) the question: “Did the Superior Court err in determining tha t the parties had In s. Co., 161 N.H. p. 7 778, 784 (2011). Axenics’ notice of cross - appeal presented raise it in its notice of cross - appeal. See Progressive N. Ins. Co. v. Argonaut The defendants maintain that Axeni cs waived this issue by failing to

means other than abandoning it.” . . . and failed to consider whether Turner had breached the contract by any Thus, Axenics asserts that “the court failed to consider the elements of breach breach, although the court’s specific findings de tailed numerous breaches.” erroneously conclude that because it found no abandonment there was no conflated breach of contract with contract abandonment, “which led [it] to Turner breac hed the subcontract. Axenics maintains that the trial court Axenics next argues that the trial court erred in failing to find that

II. Breach of Contract

correctly determined that the parties did not abandon the subcontract. con tract). Under these circumstances, we conclude that the trial court found when parties took steps inconsisten t with enforcing their rights under N.Y.S.2d 39, 43 (App. Div. 2004) (citing cases in which abandonment was retained rights under contract); EMF General Contracting Corp. v. Bisbee, p. 7 774 (finding no contract abandonment, in part, whe n und erlying part ies expressly its rights under the contract. See Clarendon America, 124 Cal. Rptr. 3d at 6 subcontract. Moreover, there is no evidence that either party failed to preserve numerous change orders does not evidence the parties’ intent to abandon the delay, hindrances, and obstructions. Accordingly, the fact that there were Importantly, t he subcontract also provided for possible schedule adjustments, contemplate d that there might be changes to the work and its cost. the contr act itself allowed such changes. Likewise, the subcontract in this ca se of changes, the parties had not abandoned the construction contract because S.W.3d at 335, the Missouri Appeals Court found that, despite a large number scope of work resulted in abandonment”). In Fr u - Con/Fluor Daniel, 154 (finding there was no “evidence that an excessive number of changes to the process pipe – did not change. See Clarendon America, 124 Cal. Rptr. 3d at 6 to which the parties origina lly agreed, the scope of the work – the installation of p. 8 8

trial court’s equitable determination for an unsusta inable exercise of Dist., 159 N.H. 206, 210 (2009) (quotation omitted). Consequently, we review a case rests in the sound discretion of the trial court.” Clapp v. Goffstown Sch. unjustly enriched. “The propriety of affording equitable relief in a particular The defendants argue that the trial court erred in ruling that they were

III. Unjust Enrichment

hearing. is within the trial court’s discretion as to whether it should hold an additional the fact s and circumstances of the case.” (quotation and brackets omitted)). It conduct is a material breach is a question for the trier of fact to determine from alleged by Axenics. See Barrows v. Boles, 141 N.H. 3 p. 8 82, 388 (1996) (“Whether the trial court to determine whether Turner breached the subcontract as court’s finding against Axenics on its breach of contract claim and remand for claim that Turner breached the subcontract. We, therefore, vacate the trial abandonment with contract breach, it failed to specifically address Axenics’ brackets omitted). Here, becau se the trial court conflated contract contract.” Lassonde v. Stanton, 157 N.H. 582, 588 (2008) (quotation and legal excuse to perform any promise which forms the whole or part of a the other hand, “[a] breach of contract occurs when there is a failure without of the contract by mutual consent.” J.A. Jones Const r., 89 P.3d at 1019. O n above, “contract abandonment occurs when both parties depart from the terms breached the sub contract, however, are two separate questions. As stated W hether the parties abandoned the su b contract, and whether Turner

subcontract. “the contract was not abandoned,” but that Turner had not breached the expressed any intent to abandon the contract,” and concluding not only that had abandoned t he subcontract, finding that “neither Axenics nor Turner agree ment by abandoning the contract.” It then analyzed whether the parti es breach of contract claim as alleging “that Turner breached its contractual breach of contract claim. In its order, t he trial court characterized Axenics’ and contract abandonment and, therefore, failed to rule specifically on Axenics’ We agree with Axenics t hat the trial court conflated breach of contract

with regard to that action”). Accordingly, we will address this argument. ultimate issue of the sufficiency of the evide nce as to the juvenile’s mens rea “inextricably linked with, and fairly comprise[d] a subsidiary question to, the case, question of whether evidence of juvenile’s actus reus was sufficient was 151 N.H. 14, 16 (20 04) (concluding that, under facts and circumstances of conflating abandonment with breach of contract. Cf. In re Juvenile 2003 - 1 p. 8 87, question fairly encompasses the issue of whether the trial court erred in contract and abandonment claims, we conclude that Axenics’ abandonment Because of the fashion in which t he trial court addressed Axenics’ breach of p. 9 9

extra work it performed or extra costs it incurred – was a ddressed in the changes to the work and Axenics’ entitlement to payment for any resulting timely manner. This subject matter – Turner’s responsibilities for coordinating costs that it would not have had to incu r in order to fulfill its obligations in a the facility caused Axenics personnel to work overtime and to incur additional enrichment claim is that Turner’s failure to properly coordinate construction of under an unj ust enrichment theory. The gravamen of Axenics’ unjust We agree with the defendants that Axenics cannot recover against Turner

outside the scope of the contract. Clapp, 15 p. 9 9 N.H. at 211. enrichment may be available to contracting parties if the benefit received is Unjust Enrichment § 2 comment c at 17 (2011). Nevertheless, unjust unjust enrichment within their reach.” Restatement (Third) of Restitution and and the terms of an enforceable agreement normally displace any claim of . . . subordinat e to contract as an organizing principle of private relationships, for plaintiff on unjust enrichment claim). This is so because “[r]estitution is vali d and enforceable contract, trial court properly entered summary judgment Finance Co. v. Wyner, 156 N.H. 468, 476 (2007) (finding that, in absence of contract covering the subject matter at hand. Id. at 210 - 11; see Singer Asset recovery under a t heory of unjust enrichment when there is a valid, express agreement. Id. It is a well - established principle that the court cannot allow general limitation is that unjust enrichment may not sup plant the terms of an implications of the words unjust enrichment.” Id. (quotation omitted). One “narrower, more predictable, and more objectively determined than the Id. (quotation omitted). It is not a boundless doctrine, but is, instead, individual receives “a benefit which would be unconscionable for him to retain.” Unjust en richment is an equitable remedy that is available when an

the subcontract. enrichment b ecause the extra work that it performed was outside the scope of Axenics counters that it was entitled to recover under a theory of unjust completing the piping installation – was covered by the parties’ contract.” subject matter of Axenics’ claim – the Extra Work purportedly performed in against Turner under the theory of unjust enrichment “be cause the precise The defendants maintain that the trial court erred in allowing recovery

A. Turner

finding that Turner was unjustly enriched and, therefore, liable to Axenics. principles of law.” Id. (quotation omitted). We wil l first address the trial court’s must be exercised, not in opposition to, but in accordance with, established equitable relief is within the sound discretion of the trial court, that “discretion or u ntenable to the prejudice of their case. Id. Although the award of defendants must demonstrate that the court’s ruling was clearly unreasonable discretion. See i d. To show an unsustainable exercise of discretion, the p. 10 10

re covery against the plaintiff in quantum meruit for expenses incurred Puritan Mills, 262 S.E.2d at 587. Upon completion, the defendant sought defendant entered into a contract with the plaintiff to construct loading docks. 262 S.E.2d 586 (Ga. Ct. App. 1979), is also misplaced. In Puritan Mills, the Axenics’ reliance upon Puritan Mills, Inc. v. Pickeri ng Const ruction Co.,

is inapposite. that the extra work fell outside the scope of the Subcontract.” Thus, R.J. Berke parties orally modified the change order procedure for Axenics’ extra work and furnished under the breached subcontract. Rather, A xenics claims that “the consequently, would be entitled to recover the value of the labor and materials breached the subcontract, is therefore without contract remedies, and, does not support Axen ics ’ argument. Here, Axenics does not argue that it and thus, has no contract remedies. R.J. Berke, 116 N.H. at 764. This holding restitutionary remedy available to a party that materially breaches a contract, the ory of unjust enrichment. In R.J. Berke, we held that q uantum meruit is a N.H. 760 (1976), in arguing that it is entitled to recover against Turner on a Axenics further relies upon R.J. Berke & Co. v. J.P. Griffin, Inc., 116

such modifications outside the sco pe of the subcontract itself. the change order process does not rende r the work Axenics performed after scope of the subcontract. Simply because the parties may have orally modified discussed above, we disagree that the extra work performed fell outside the asserts, the refore, that it is entitled to unjust enrichment damages. As the modifications necessarily fell outside the scope of the subcontract. It set forth in the subcontract and that the extra work it performed pursuant to Axenics argues that the parties orally modified the change order process

work that was within scope of parties’ agreement). unjust enrichment whe n majority of subcontractor’s claims were based up on subcontractor could not recover against general contractor under theory of F. Supp. 2 d 197, 230 (D.R.I. 20 p. 10 10) (applying Rhode Island law and finding that unjust enrichment. See id. at 2 p. 11 11 - 12; ADP Marshall, Inc. v. Noresco, LLC, 710 trial court erred in allowing Axenics to recover against Turner under a theory of enrichment claim, and the subcontract was not abandoned by the parties, the to the work. S ince the subcontract governed the subject of Axenics ’ unjust subcontract, and delineated Turner’s responsibilities for coordinating changes procee ding when Axenics believed the “work to be beyond the scope of” the because of change orders. The subcontra ct also established a mechanism for which Axenics would receive payment for any extra work that it performed addre ssed the possibility of delays and hindrances as well as the process by extra work and costs. As laid out above, the terms of the subcontract expressly contract. I nstead, it argu es that t o a chieve that objective on time required objective – inst alling process piping – ch anged during the course of the subcontract itself. Axenics does not argu e that the ultimate contractual 11

material and labor furnished. from the owner’s receipt and acceptance of the benefit of the property owner upon the basis of an implied promise to pay arising and credit of [,] a general contractor cannot recover against the material or labor pursuant to an agreement with, or upon the order [t] he general rule in this area is that a subcont ractor who furnishes

services expe cted to be compensated therefor by the owner.” Id. However, circumstances as reasonably notify the owner that the one performing such pay,” such as whe n the owner accepts “benefits rendered under such There may be “special circumstances that would justify requiring the owner to Haz - Mat Response v. Certified Waste Serv., 910 P.2d 839, 847 (Kan. 1996). b rought by a subcontractor against an owner, absent privity, are . . . limited.” “[T] h e circumstances under which an unjust enrichment claim may be

586 (1990) (quotation and brackets omitted). unconscionable to retain.” Pella Windows and Doors v. Faraci, 133 N.H. 585, restitution fo r unjust enrichment if he has received a benefit that would be between the parties, “a trial court may require an individual to make (quotation omitted)). Whe n, as here, no express contractual relationship exists . . . .” Gen. Ins ulation Co. v. Eckman Constr., 159 N.H. 601, 6 p. 11 11 (2010) benefit or passively received one which it would be unconscionab le to retain enrichment, but that the person sough t to be charged had wrongfully secured a “The party seeking restitution must establish not only unjust

“make restitution.” bargained and paid for and that Stryker, therefor e, should not be required to [the] contract.” They maintain that any benefit received by Stryker was both contractual benefit it received – the construction of [the facility] according to [against Stryker] must fail as a ma tter of law because [Stryker] has paid for the The defendants further argue that Axenics’ “unjust enrichment claim

B. Stryker

Turner liable to Axenics on its theory of unjust enrichment. enrichment claim. A ccordingly, we reverse the trial court’s decision finding however, the subcontract addressed the subject matter of Axenics’ unjust award for the reasonable value of removal of rock. Id. at 587 - 88. Here, services in removing the rock, the court upheld the trial court’s monetary and th ere was no question that the plaintiff k nowingly accepted the defendant’s Id. Accordingly, since the contract did not contemplate the removal of rock, work or the drawings reflect [ed] the removal of rock as a part of the contract.” set [] forth the work to be pe rformed and none of the five items describing the Georgia Court of Appeals found that “[t]he contract between the parties clearly resulting from a change order, which required the removal of rock. Id. The p. 12 12

that issue. theory of unjust enrichment. We, therefore, rev erse its decision with respect to the trial court erred in allowing Axenics to recover against Stryker under a and in accordance with the contract specifications.” Accordingly, we hold that trial court itself found, what Stryker “received was a project completed on time defendant to retain the benefits without paying the plaintiff”). Indeed, as the paid another for the benefit s conferred,. . . it was not inequitable to permit the gen eral contrac tor and finding rationale to be that when “the defendant had subcontractor had performed construction work pursuant to agreement with money by subcontractors against property owners upon whose property 252 N.W.2d 913, 9 16 - 18 (Wis. 1977) (reviewing cases involving actions for and Doors, 133 N.H. at 586; see also S & M Rotogravu re Service, Inc. v. Baer, accepted a benefit that would be unconscionable to retain. See Pella Windows subcontractors such as Axenics. Thus, there is no evidence that Stryker conclusion that Stryk er did not expect to pay additional sums directly to work requested by Turner; to the contrary, this finding arguably support s the knowledge that it would be directly liable to Axenics for the cost of additional Stryker’s expression of gratitude does not demonstrate that Stryker had this finding to support its award against Stryker is misplaced. In our vi ew, on schedule despite several problems that occurred,” the court’s reliance on the trial court found that Stryker “thanked all of the subcontractors for staying expected to be compensated directly by Stryker rather than by Turner. While accepted benefits u nder circumstances reasonably notifying it that Axenics financial obligation to Turner. Nor is there any indication that Stryker Here, there app ears to be no dispute that Stryker has fulfilled its

unpaid to the general contractor.” Id.; see RSA 447:5 (Supp. 20 p. 12 12). subcontractors have the statutory lien mechanism to attach money as yet contractor, but if the general does not pay the subcontractors, the and hire the subcontractors.” Id. at 419. “The owner pays the general general contractor for a construction job is for the general to manage the job 2001) (collecting cases). This is so, in part, because “[t] he point of hiring a and the general.” DJ Pa inting v. Baraw Enter prises, 776 A.2d 413, 418 (Vt. cannot rely on the owner to satisfy the relationship between the subcontractor has fulfilled its financial obligation to a general contractor, a subcontractor C onsistent with this rule, other courts have found that “[w]here an owner

pay for the subcontractor’s performance.” (quotation and brackets omitted)). to a subcontractor on a quasi - contract theory unless it expressly consents to property owner who contracts with a general contractor does not become liable N.Y.S.2d 637, 646 (Sup. Ct. 2007) (“It is a firmly establishe d principle that a (quotation omitted); see also A & V 425 LLC Contracting v. RFD 55th St., 830 Great Plains Equipment v. N.W. Pipeline, 979 P.2d 627, 641 (Idaho 1 999) p. 13 13

that the amounts listed were under consideration by the defendants as part of negotiations, we disagree. The language in the memorandum demonstrates constitute a statement made to compromise the claim or during compromise To the extent that Axenics argues that the internal memorandum did not

value of the fact of settlement and a policy to encourage settlements.” Id. 408 Reporter’s Notes. “The R ule . . . reflects both doubt as to the probative negotiations is inadmissible on questions of liability a nd damages.” N. H. R. Ev. compromise agreements, and conduct or statements made in compromise The R ule “states the basic proposition that evidence of compromise offers[,]

negotiations is likewise not admissible. Evidence of conduct or statements made in compromise

amount. admissible to prove liability for or invalidity of the claim or its claim which was disputed as to either validity or amount, is not consideration in compromising or attempting to compromise a (2) accepting or offering or promising to accept, a valuable [E] vidence of (1) furnishing or offering or promising to furnish, or

New Hampshire Rule of Evidence 408 provides, in relevant part:

and relied upon the memorandum in its determination of damages. compromise negotiations. In its final order, the court reaffirmed this r uling communicated to the . . . other side,” it was not a statement made in defendants’ objection, finding that because the memorandum “was never New Hampshire Rule of Ev idence 408. The trial court overruled the statement made in compromise negotiations and, thus, was inadmissible under defendants objected on the ground that the memorandum constituted a Turner and Stryker toward a potential settlement with Axenics. The composed by Turner, which listed possible contributio n amounts from both At trial, Axenics sought to admit an internal email memorandum

& Sons, Inc., 162 N.H. 123, p. 13 138 (2011). Because th is issue may arise on remand, we address it. See George v. Al Hoyt compromise in contravention of New Hampshire Rule of Evidence 408. considering as evidence of damages a communication regarding an offer to The defendants argue that the trial court erred in admitting and

IV. Damages – A dmission of Internal Memoranda

argument concerning the proper measure of damages under that theory. liable under the theory of unjust enrichment, we need not address Axenics’ In view of our rulings that the trial court erred in finding the defendants p. 14 14

work, which was necessary to complete the facility on time, and “then secretly conclusion.” Axenics maintains that Turner instructed it to perform extra not make adequate findings” and “merely jumped to an unsupported did not violate the CPA was erroneous “as a matter of law be cause the court did Axenics argues that the trial court’s finding that the defendants’ conduct

clear error of law.” George, 162 N.H. at 129 (quotation omitted). rulings of law will be upheld unless they lack evid entiary support or constitute defendants did not violate the CPA. “The trial court’s findings of fact and Finally, Axenics challenges the t rial court ’s conclusion that the

V. CPA Claim

assessing damages. admitted in error, we further find that the t rial court erred in relying upon it in settlement with Axenics. Since we h ave found the internal memorandum was internal memorandum outlining the defendants’ possible contributions to a omitted). Ac cordingly, we hold that the trial court erred in admitting the other party.” Xcoal Energy & Resources, LP, 635 F. Supp. 2d at 454 (quotation specifically for the purpose of conciliation, even if not communicated to the exclusion of certain work product, internal memos, and other materials created several circuits and as set forth in the commentary to the Rule, suppor ts the purpose of compromise negotiations. “The spirit of the Rule, as recognized by of Rule 408 weigh in favor of exclusion of internal memoranda prepared for the W e now join the federal circuits in concluding that the policy objectives

in an a ttempt at settlement.” “does not apply to internal memoranda unless communicated to the other side Court for the District of Maryland ruled that Federal Rule of Evidence 408 960 F.2d p. 14 145 (4 th Cir. 1992) (unpublished opinion), the United States District Falcon Materials, 760 F. Supp. 516, 522 (D. Md. 1991), aff’d on other grounds, Seventh, Eighth, and Eleventh Circuits). Conversely, in Blue Circle Atlantic v. Supp. 2d 453, 454 (W.D. Va. 2009) (discussing cases from the Third, Fifth, Federal Rule of Evidence 408. Xcoal Energy & Resources, LP v. Smith, 635 F. communicated to the opposing side, are encompassed within” the similar addressed this issue have agreed that internal memoranda, although not party, is protected under Rule 408. However, “[t]he [federal] circuits that ha ve evincing an offer to compromise, which has not been disclosed to the opposing W e have not had occasion to address whether an internal memorandum,

the case.” trial court itself observed that the memorandum “suggests an ‘ o ffer ’ to settle compromise disputed claim but was admission of contractual obligations). The Realty, p. 14 145 N.H. 447, 450 (2000) (finding that statement was not offer to a settlement package to be submit ted to Axenics. C f. Slattery v. Norwood p. 15 15

from uncommon. bargaini ng, by both sides, which is hardly commendab le, but far litigation establish[ed] a level of brinkmanship and hard documents introduced at trial and the pub lic record of the why its claims exceeded the amount bid. Moreover, both the Axenics’ claim had value, Axenics did a poor job of documenting Although Turner’s own documents suggest that it knew that

had merit.” The trial court further found that: concerning Axenics’ claims for payment, “stating that many of Axenics’ claims Indeed, the court found that Turner provided documentation to Stryker payment] and provided Stryker with a rebuttal to some of Axenics’ claims.” “Turner merely requested back - up from Axenics [to support its claims for Axenics, it ultimately found that was “not the case.” T he court found that never requested additional funds from Stryker” for the extra work performed by under the” CPA. Although the co urt noted Axenics’ allegation that “Turner neither Turner’s nor Stryker’s behavior rose to the level of rascality required have been unjustified or inaccurate based on its own failure to coordinate, but certain cla ims by Axenics for payment for the extra work it performed “may Here, the trial court found that Turner’s conduct in attempting to rebut

(quotation omitted). world of commerce.” Beckstead v. Nadeau, p. 15 155 N.H. 615, 619 (2007) would raise an eyebrow of someone inured to the rough and tumble of the rascality test, “the objectionable conduct must attain a level of rascal ity that are covered by the CPA, we have employed the “rascality” test. Id. Under the omitted). In determining which commercial actions not specifically delineated of contract claim, for example, is not a violation of the CPA.” Id. (quotation the course of trade or c ommerce falls within its scope. Id. “An ordinary breach recognized that, although this provision is broadly worded, not all conduct in in the conduct of any trade or commerce within this state.” We have previously 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

the part ies do not dispute on appeal that RSA chapter 358 - A applies. violation of the [CPA],” entitling Axenics to exemplary damages. We note that reasonable conclusion is that their [conduct] constitutes a willful or knowing the steps each took to subvert, delay, and deny Axenics’ claims, the only “[g]iven [the defendants’] business sophistication and the length and breadth of constituted unfair or deceptive acts under the CPA. Axenics also argues that Turner had given it to Stryker.” According to Axenics, these actions Stryker without disclosing to Axe nics the existence of the rebuttal or that from Stryker for the extra work performed and “then presented [a] rebuttal to that Turner assured Axenics that it would support Axenics’ claims for payment subvert[ed] Axeni cs’ legitimate efforts to be paid.” Specifically, Axenics a sserts p. 16 16

DAL I ANIS, C. J., and HICKS, CO NBOY and LYNN, JJ., c oncurred.

141 N.H. at 391 (quotation omitted). of someone inured to the rough and tumble of the world of commerce.” Boles, finding that the defendants did not act “in a way that would raise an eyebrow rascality test. Accordingly, we conclude that the trial court did n ot err in the defendants’ litigation tactics in t his case were so egregious as to satisfy the tactics fal l within the scope of the CPA, Axenics has failed to demonstrate that prohibitively expensive.” Assuming, without deciding, th at unfair litigation further delay the adjudication of Axenics ’ claim and make the litigation strategies violated the CPA because they were “unfair” and were “designed to Axenics further c ontends that certain of the defendants ’ litigation

homeowners in effort to avoid performing work or refunding deposit). did not intend to perform work, and he made misrepresentations to inducing homeowners to enter into contract with him to install siding when he State v. Moran, 151 N.H. 450, 453 - 54 (2004) (def endant violated CPA by present it to them,” t his conduct is not of t he type proscribed by the CPA. Cf. because it believed it “had an obligation to Stryker to review th e backup and inform Axenics that it was preparing a rebuttal to some of Axenics’ claims secret” that Turner was going to review the back - up. Although T urner did not claims for payment. In addition, trial testimony indicated that “there was no claims for payment, and that Turner supported the validity of some of Axenics’ efforts to collect and organize back - up documents to support some of Axenics’ Moreover, the record support s the trial court’s findings that Turner made

business, did not violate the CPA.” “that the parties’ co nduct, in the context of the ‘rough and tumble’ construction These findings are sufficient to support the trial court’s ultimate conclusion