2016-0370, Wayne Ross, Trustee of the Wayne Ross Revocable Trust & a. v. Donald W. Ross & a.

pursuant to RSA 540:2, II(d) or (e) (2007). We vacate and remand. for the plaintiffs’ lifetimes and that they had no right to evict the defendants plaintiff s contest the trial court ’s findings that the parties entered into a lease of the defendants, Donald Ross and Rossview Farm, LLC (the LLC). The an order of the Superior Court (McNamara, J.), following a bench trial, in favor Ross Revocable Trust and the Ruth Ross Revocable Trust, respectively, appeal HICKS, J. The plaintiff s, Wayne and Ruth Ross, trustees of the Wayne

on the brief and orally), for the defendant s. Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Peter G. Callaghan

brief and orally), for the plaintiff s. Ramsdell Law Firm, P.L.L.C., of Concord (Michael D. Ramsdell on the

WAYNE ROSS, TRUSTEE OF THE WAYNE ROSS RE VOCABLE TRUST & a.

No. 2016 - 0370 Merrimack

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

altercations occurred, one in p. 2 2010 and one in 2013. After serving Donald a n By 2013, the parties were at odds with one another. Two physical

parties agreed r ent would no longer be required. not always pay on time and frequently paid in cash, until p. 2 2011, when the investments in it. Donald paid the rent of $21,000 per year, although he did oral. Between 2004 and 2013, Donald ran the farm and made significant requi rements of the USDA and that t he ori ginal lease between the parties was The trial court found that the written lease was prepared only to satisfy the

per year. in Concord, NH, to Donald Ross of Rossview Farm LLC for $ p. 2 21,000 We, Wayne and Ruth Ross, lease our farm land on District #5 Road

To whom it concerns:

June p. 2 23, 2006

total, as follows: submitted the revision, the parties executed a written lease which provides, in farm’s] operation to Donald.” (Quotation omitted.) Nine days after Donald of Agriculture (USDA) contract to reflect that “Wayne Ross [was] leasing [the rent. In June of that year, Wayne agreed to revise a United S tates Department The parties agreed in January of p. 2 2006 that Donald would pay monthly

expenses. occasionally, but Donald received all of the farm’s income and paid all of its over operations of the farming business. Wayne continued to work on the farm to use the trade name “Rossview Farm.” Around p. 2 2004 or 2005, Donald took LLC was registered with the State and the parties granted the LLC permission seminars on transferring fami ly farms. In 200 4, defendant Rossview Farm, plaintiffs consulted with attorneys about estate planning and attended the farm until Wayne’s death, whereupon Donald would inherit the farm. The operation to him. In 2003, Wayne told Donald that he w ant ed Donald to run farm’s operation. As he did so, the plaintiffs transferred assets of the far ming employee of the farm, and he began to assume increasing responsibility for the work on the farm. Through the early 2000’s, Donald was treated as an In 1998, one of the defendants, Donald, t he plaintiffs’ son, agreed to

strawberries, maple syrup, and blueberries. produced or sold dairy products, hay, firewood, timber, Christmas trees, farm in Concord since at least 1957. Throughout the years, the farm has The trial court found the following facts. The plaintiffs have owned a

I. Facts p. 3 3

memorandum, the plaintiffs explained their position that the June 2 p. 3 3, 2006 document satisfied the statute of frauds because, i n their post - trial The trial court found that the plaintiffs conceded that the June 23, 2006

legally erroneous. Jesurum v. WBTSCC Ltd. P’ship, 169 N.H. 469, 476 (2016). uphold the trial court ’ s factual finding unless it lack s evidentiary support or is plaintiffs waived appellate argument by conceding issue in trial court). We Dartmouth - Hitchcock Clinic, 154 N.H. 662, 669 - 70 (2006) (concluding that waives a party’s right to contest that issue on appeal. See Milliken v. document satisfies the statute of frauds. Conceding an issue in the trial court The trial court found that the plaintiffs conceded that the June 2 p. 3 3, 2006

A. Availability of judicial review

part performance removes the lease fr om the operation of the statute of frauds. enfor ce the statute of frauds would perpetrate a fraud and that the doctrine of certainty to satisfy the statute of frauds. The defendants further argue that to June 2 p. 3 3, 2006 docum ent identifies the duration of the lease with reasonable memorandum satisfying the statute of frauds and, alternatively, argue that the duration. The defendants dispute that the duration is an essential term of a insufficient, in the pla intiffs’ view, because it lacks an essential term: the insufficient writ ing under the statute of frauds. S ee RSA 506:1 (2010). It is determine the duration of the lease because the June 23, 2006 document is an they argue that it was error for the trial court to rely up on parol evidence to that the parties entered into a lease for the plaintiffs’ lifetimes. Specifically, On appeal, the plaintiffs contend that the trial court erred by concluding

II. Lease

them to evict the defendants. plainti ffs’ lifetimes and that RSA 540:2, II (Supp. 2016) does not authorize challenge only the trial court’s findings that the lease’s duration is for the which the trial court denied. This appeal followed. On appeal, the plaintiffs name and logo of Rossview Farm. The plaintiffs moved for reconsideration, the perennial crops on the property; and (5) the LLC is the owne r of the trade D onald pursuant to RSA 540:2, II (d) or (e); (4) Donald maintains the right to Donald for non - payment of rent; ( p. 3 3) the plaintiffs do not have the right to evict farm is for the plaintiffs’ lifetimes; (2) the plaintiffs do not have the right to evict After a bench trial, the trial court found that: (1) Donald ’s lease of the

permanently alter property on, the farm or to use Rossview Farm ’s graphic. lease and declare that Donald had no right to remove property from, or injunction, and declaratory judgment to determine thei r rights to terminate the plaintiffs filed this action seeking a preliminary injunction, a permanent “e viction notice and notice to vacate, on or before January 11, 201 p. 4 4,” the 4

within the Statute of Frauds.”). We need not decide the issue here. (2007) (“An agreement to lease land for a term of years is a contract to convey an interest in land in land are within the statute of frauds); J.G.M.C.J. Corp. v. C.L.A.S.S., Inc., 155 N.H. p. 4 452, 462 within the statute.” (quotation omitted)). But see RSA 506:1 (contracts for the sale of an interest be, and is, fully performed by one party within one year, “the agreement of the other party is not frauds. See, e.g., McIntire v. Woodall, 140 N.H. 228, 231 (19 95) (noting that if an agreement can year lease, we note that we have never decided whether a one - year lease is within the statute of Although the plaintiffs say that the document would “satisf[y] the statute of frauds” for a one - 1

23, 2006 document contained “the essential elements of ‘a writing’” satisfying years.” Furthermore, the trial court specifically addressed whether the June violated the sta tute of frauds in the absence of a writing reflecting “a term of appeal: that the lease the trial court found was for the plaintiffs’ lifetimes a motion for reconsideration raising the argument that they now raise on lease was actually for the duration of the plaintiffs’ lifetimes, they properly filed the statute of frauds.” When the trial court concluded in its order that th e lease. Accordingly, they contended that the June 23, 2006 document “satisfies In the trial court, the plaintiffs argued that the lease was only a one - year

preserve d for our review. Id. the trial court of a full opportunity to correct its error, the issue has been motion for reconsideration and failure to raise the issue earlier did not deprive Accordingly, we have held that whe n an issue is raised for the first time in a Davey, 153 N.H. 76 p. 4 4, 786 (2006) (quotation and brackets omi tted). before they are presented to the appellate court.” Mortgage Specialists v. trial forums should have an opportunity to rule on issues and to correct errors N.H. 443, 447 (2006) (quotation omitted). “The rationale behind the rule is that review of matters not raised in the forum of trial.” Thorndike v. Thorndike, 154 statute of frauds. “It is a long - standing rule th at parties may not have judicial preserve their argument that the June 23, 2006 document does not satisfy the We next address the defendants’ argument that the plaintiffs did not

plaintiffs did not waive their statute of frauds argument by concession. conceded the issue lacks evidentiary support, and we conclude that the create a yearly l ease. Therefore, the trial court’s finding that the plaintiffs 1 contended that it “satisfies the statute of frauds” if the document is read t o document satisfies the statute of frauds for all purposes; inst ead, they of frauds.” Thus, the plaintiffs did not concede that the June 23, 2006 the face of the document and there must be a document to satisfy the statute because “the intent of the parties to c reate a perpetual lease must be clear from of the parties’ intent to create a perpetual lease violated the statute of frauds the post - trial memorandum that the defendants’ introduction of parol evidence plaintiffs posited, creates a yearly lease. However, the plaintiffs also argued in their relationship.” The “clear” language of the June 23, 2006 document, the parties’ agreement. This document satisfies the statu t e of frauds and governs document “is a writing signed by all the parties that s tates the terms of the p. 5 5

of opportunity to correct error). for reconsideration and failure to raise issue earlier did not deprive trial court Specialists, 1 p. 5 53 N.H. at 786 (holding that issue is preserved if raised in motion opportunity to address it. Therefore, the argument is preserved. See Mortgage defendants’ failure to raise the issue earlier did not deprive the trial court of the although the trial court did not address part performance in its order, the trial court’s order on t he motion to reconsider was issued June 3, 2016. Thus, their objection to the plaintiffs’ motion to reconsider, dated May 17, 2016. The withdrawn from the statute of frauds by the doctrine of part performance — in not p reserved. The defendants raised their argument — that the contract was contention as asserting that the defendants’ part performance argument was performance was not raised in the trial court. We construe the plaintiffs’ Finally, t he plaintiffs contend that the defendants’ argument about part

T hus, we conclude that judicial estoppel does not apply. position, neither the first n or third factors w eigh in favor of judicial estoppel. Because the plaintiffs’ argument on appeal is not inconsistent with their earlier — that the document “satisfies the st atute of frauds” for a year - to - year lease. lease for the plaintiffs’ lifetime s — i s not inconsistent with their original theory that the June 23, 2006 document does not satisfy the statute of frauds for a Id. (quotation omitte d). Here, the argument the plaintiffs raise on appeal —

party if not estopped. unfair advantage or impose an unfair detriment on the opposing party seeking to assert an inconsistent position would derive an that party ’ s earlier position. A third consideration is whether the whether the party has succeeded in persuading a co urt to accept inconsistent with its earlier position. Courts also regularly inquire judicial estoppel is whether the party ’ s later position is clearly One factor to consider in deciding whether to apply the doctrine of

case.” Id. (quotation omitted). typically inform the decision whether to apply the doctrine in a particular 1 p. 5 53 N.H. 1, 4 (2005) (quotation omitted). “We have noted three factors that contradic tory argument to prevail in another phase.” Cohoon v. IDM Software, prevailing in one phase of a case on an argument and then relying on a below.” “The doctrine of judicial estoppel generally prevents a party from of frauds because the argument is “directly contrary to [the plaintiffs’] position arguing that the June 23, 2006 document was insufficient to sat isfy the statute T he defendants also argue that the plaintiffs are judicially estopped from

we conclude that the plaintiffs’ argument is preserved. the statute of frauds in its order on the plaintiffs’ motion to reconsider. Thus, p. 6 6

of the leasehold interest is central to that undertaking. It is an I n the case of a lease or an agreement to lease, the duration

5 p. 6 67 (Mass. App. Ct. 1994), the court explained: term, numerous other jurisdictions have. In Simon v. Simon, 625 N.E.2d 564, Although we have not held that the duration of a lease is an essential

parties agree that duration is an essential element of a lease). statute of frauds. See Gowing v. Bell, 9 p. 6 6 N.H. 361, 363 (1950) (noting that the of a lease is an essential term that must be expressed in writing to satisfy the defendants respond, correctly, that this court has never held that the duration writing must express a fourth essential term: the d uration of the lease. The However, the plaintiffs argue that, for a lease for a term of years, the

June 23, 200 p. 6 6 document. plaintiffs do not contend that any of those essential terms are absent from the and a description of the real estate in question. Gre ene, 156 N.H. at 727. The writing must express include: the purchase price, the identity of the parties, and the price. In contracts for the sale of land, the essential terms that the frauds,” which the court stated were the identity of the property to be leased contains the essential terms of “‘a writing’ sufficient to satisfy the statute of statute of fra uds because it was signed by the parties to be charged and The trial court concluded that the June 23, 2006 document satisfies the

v. Groveton, 122 N.H. 101, 103 (1982). circumvent the purpose of the statute of frauds. Badr Export and Import, Inc. allow parol evidence t o supply the essential terms of the contract would contract.” Greene v. McLeod, 15 p. 6 6 N.H. 724, 727 (2008) (quotation omitted). To satisfy the statute of frauds, the writing must express the essential terms of the transfer a l easehold interest must also be in writing to be enforceable. Id. “To Farm Realty Trust, 141 N.H. 726, 729 (1997). Consequently, an agreement to convey an interest in land within the statute of frauds. Byblos Corp. v. Salem 506:1. An oral agreement to lease land for a term of years is a contract to the party to be charged, or by some person authorized by him in writ ing.” RSA which it is brought, or some memorandum thereof, is in writing and signed by be maintained upon a contract for the sale of land unless the agreement upon The statute of frauds, as applicable here, provides that “[n]o action shall

the duration of the lease. from a writing, the trial court erred in relying upon parol eviden ce to determine evidence is gene rally inadmissible to prove an essential term that is absent term of the lease: the duration. The plaintiffs conclude that, because parol insufficient writing under the statute of frauds because it lacked an essential The plaintiffs contend that the June 23, 200 p. 6 6 document was an

B. Statute of f rauds p. 7 7

the statute of frauds where absent essential term was “readily determinable determined by the contents of the writing. See id. (finding that writing satisfied statute of frauds may be satisfied if the abs ent essential term can be City of Nashua, 160 N.H. 1 p. 7 75, 179 (2010) (quotation omitted). However, the insufficient ly definite to satisfy the statute of frauds. MacThompson Realty v. If an essential term is “neither stated nor determinable,” the writing is

certainty a specific term of years. however, the phrase “per year” is insufficient to invoke with reasonable certainty as to a n essential term can suffice to satisfy the statute of frauds; greater than one year with reasonable certainty. We agree that reasonable the defendants contend that the writing identifies the duration of the lease as document. Because the document describes the rent as “$21,000 per year,” duration of the lease need only be reasonably certain from the June 23, 2006 T he defendants further argue that, to satisfy the statute of frauds, the

not an essential term. found, no authority to support the proposition that the duration of a lease is undertaking.” Simon, 625 N.E.2d at 56 p. 7 7. The defendants cite, and we have essential because “the duration of the leasehold interest is central to that growth, however, the time for performance of a lease for a term of years is Unlike an assignment of an option to purchase real estate or a sale of timber timber to be cut on a tract of land, Kidder v. Flanders, 73 N.H. 345, 346 (1905). Lapierre v. Cabral, 122 N.H. 301, 303, 305 (1982), nor of a sale of wood and an essential term of an assignment of an option to purchase real estate, under the statute of frauds. We have held that the time for performance is not The defendants argue that time for performance is not an essential term

frauds. e ssential term that must be expressed in writing to satisfy the statute of reasoning of these courts and conclude that the duration of a lease is an including when the term begins; and rental amount). We agree with the must, at a minimum, identify: parties; premises to be leased; duration of lease, Frauds, 12 A.L.R. 6th 123, 138 (2006) (noting that courts have held that lease s Conditions of Lease, or Lease Provision, so as to Comply with Statute of 580 (Utah 1952)); see also Annotation, Sufficiency of Description of Terms and (Utah Ct. App. 1991) (citing Birdzell v. Utah Oil Refining Co., 242 P.2d 5 p. 7 78, 558, 561 (Ariz. 1962); English v. Standard Optical Co., 814 P.2d 613, 616 at 567 - 68; accord, e.g., Custis v. Valley Nat iona l Bank of Phoenix, 375 P.2d define th e time period over which the rental was to extend.” Simon, 625 N.E. lease a retail store did not satisfy the statute of frauds because it “fail[ed] to (Q uotation omitted.) Thus, the court concluded that an option agreement to

period definitely fixed or at least capable of definite ascertainment. essential element in a lease for a term that there be a demise for a p. 8 8

remand for the trial court to determine whether the doctrine of part We decline to rule on this issue in the first instance. We, therefore, vacate and performance withdraws this lease from the operation of the statute of frauds. The defendants argue on appeal, as they did below, that the doctrine of part his part of the agreement.” Id. (quotations, citation, and brackets omitted). would result in fraud or irreparable injury on the purchaser who has performed from the operation of the statute of frauds when application of the statute established that the part performance doctrine “effectively withdraws contracts from doing grave injustice.” Id. (quotation and brackets omitt ed). It is well doctrine is a judicial device intended to prevent the terms of a formal statute at 72 p. 8 8 (quotation, brackets, and ellipsis omitted). “The part performance performance or other equitable considerat ions, are present.” Green e, 156 N.H. the harshness of the statute when some operating facts, such as fraud, part on the one hand, and unethical conduct on the other, the law seeks to alleviate However, “[b]ecause strict enforcement of the statute can produce frustration found that the June 23, 2006 document satisfied the statute of frauds. Based upon the foregoing, w e conclude that the trial court erred when it

satisfy the statute of frauds. employment). Thus, the June 23, 2006 document is insufficiently definite to (holding that phrase “salary is to be $12,000 a year” did not fix duration of See Campbell v. Sheraton Corp. of America, 253 S.W.2d 106, 110 (Mo. 1952) year,” is not clear and explicit in denoting a particular duration of the lease. by which the duration could be determined. The descriptive language, “per year.” The duration is not included, nor does the document provide a method #5 Road in Concord, NH, to Donald Ross of Rossview Farm LLC for $21,000 per prov ides only that: “We, Wayne and Ruth Ross, lease our farm land on District the June 23, 2006 document. The single sentence contained in the document Here, the duration of the lease is neither stated in nor determinable from

sufficient description of land to be conveyed (quotation omitted)). Tremblay, 7 p. 9 9 N.H. 431, 432 - 33 (1920) (finding “234 Union Ave & lot” a Bethlehem, N.H.” described property with reasonable certainty); Gilbert v. first house on the left belonging to Mrs. Anna Singer. . . on Lewis Hill 159, 160 - 61 (1971) (holding that “house with contents and one acre of land. . . 529, 532 (1965) (quotations omitted); see also Cunningham v. Singer, 111 N.H. explicit in denoting a particular lot of land.” Jesseman v. Aurelio, 106 N.H. satisfy the statute of frauds “[i]f the descriptive language used is clear and frequently used in formal conveyances of real estate,” is sufficiently definite to statement of its boundaries, its geographical location or other designations Similarly, a writing that describes the property to be conveyed without “a necessarily result in the determination of the price.” Id. (quotation omitted). contract prescribes a method,” such as a future appraisal, “which will explicitly state the agreed - upon price may satisfy the statute of frauds if “the from the settlement agreement”). For example, a writing that does not 9

document satisfied the statute of frauds was error, and because we c an find no Because we conclude that the trial court’s finding that the June 23, 2006

IV. Conclusion

property” under RSA 540:1 - a. of whether the disputed property is “[r]estricted property” or “[n]onrestric ted claim and direct the trial court, upon remand, to determine the threshold issue Accordingl y, we vacate the trial court’s order on the plaintiffs’ RSA 540:2, II property is “[r]estricted property” under RSA 540:1 - a, II (quotation omitted). . . ..”). We can find no support in the record for a finding that the disputed (“We will uphold the trial court’s decision unless the record does not support it made a particular subsidiary finding if the record does not support it. Cf. i d. ruling.” (quotation omitted)). However, w e will not assume that the trial court that the trial court made subsidiary findings necessary to support its general In the Matter of Aube & Aube, 158 N.H. 45 p. 9 9, 466 (2009) (“We must assume court made all of the subsidiary findings necessary to support its decision. See that the lease involved restricted property, we should assume that the trial The plaintiffs contend that, although the trial court did not explicitly find

before us. Thus, it is unclear from the record why RSA 540:2, II is applicable to the case eviction notice with which they served the defendants. (Quotation omitted.) and the plaintiffs themselves identified it as “[n] onrestricted property” in the appears to be farmland “rented for nonresidential purposes,” RSA 540:1 - a, I, 540:2, I, II (Supp. 2016). Based on the record before us, t he disputed property the trial court did not a ddress. RSA 540:1 - a, I, II (q uotations omitted); RSA constitutes “[r]estricted” or “[n]onrestricted” property is a threshold issue that (2007) (quotation omitted). The question of whether the disputed property part, as “all real property rented for nonresidential purposes.” RSA 540:1 - a, I 137, 141 (2001). By contrast, “[n]onrestricted property” is defined, in relevant (2007) (quotation omitted); N.A.P.P. Realty Trust v. CC Enterprises, 147 N.H. “R estricted property” generally means residen tial property. RSA 540:1 - a, II representatives” or, in subsection (e), “[o]ther good cause.” (E mphasis added.) adversely affects the health or safety of the other tenants or the landlord or his subsection (d), “[b]ehavior of the tenant or members of his family which terminate any tenancy” with proper notice, for specified reasons including, in RSA 540:2, II provides that “[t]he lessor or owner of restricted property may that neither RSA 540:2, II (d) nor (e) gave them authority to terminate the lease. Finally, the plaintiffs contend that the trial court erred by conclu ding

III. Right to terminate lease pursuant to RSA 540:2

operation of the statute o f frauds. performance or other equitable considerations withdraw this lease from the p. 10 10

DALIANIS, C.J.