2015-0692, Fat Bullies Farm, LLC v. Lori Devenport & a.

known as Runnymede Farm. We affirm i n part, reverse in part, and remand. Bret Devenport, involving the sale of a 3.1 a cre horse farm in North Hampton course of litigation with the defendants, Alan and Donna Perkins and Lori and findings and rulings of the Superior Court (Wageling, J.) made during the counterclaim defendants, Donald Gould and Peter Simmons, appeal various HICKS, J. The plaintiff, Fat Bullies Farm, LLC (Fat Bullies), and the

Daniel M. Deschenes on the brief, and Mr. Carter orally), for the defendant s. Hinckley, Allen & Snyder, LLP, of Concord (Christopher H.M. Carter and

the brief and orally), for the plaintiff and counterclaim defendants. Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on

No. 2015 - 0692 Rockingham

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

Devenports and Fat Bullies then executed the agreement, which provided: their intentions to develop the property, Simmons and Gould agreed. The prop erty only if Fat Bullies committed to operating it as a horse farm. Despite purchase price of $800,000. The Devenports reiterated that they would sell the to be akin to a right of first refusal. The contract was amended to reflect a agreement. The Devenports reviewed the draft agreement, which they believed Simmons provided the Devenpo rts with a copy of t he draft option

the farm, and the horses that were currently being board ed there. various topics, including the cost of running Runnymede, who would manage previously boarded there. Simmons, Gould, and the Devenports also discussed the trophies won by the farm’s horses and the stall of a famous horse that they were there to talk about purchasing the farm. Simmons asked to see the Devenports. Simmons introduced Gould as his attorney, and explained following day, July 16, Simmons and Gould went to Runnymede to meet with According to the testimony generally credited by the trial court, t he

price of $700,000. the Devenports and Fat Bullies. The draft option agreement stated a purchase contacted an attorney, who drafted an “option agreement” to be executed by of acquiring real estate for development or resale.” Simmons and Gould then and/or resell it. Gould agreed, and the two created Fat Bullies “for the purpose attorney — about purchasing the property jointly with the intent to develop Simmons thereafter spoke with Gould — a retired Massachusetts

allow the former owner to maintain an office on site. the buyer agreed to continue operating the property as a horse farm and to that they were asking $800,000, and that they would only sell Runnymede if interested, and inquired into its purchase price. Bret Devenport responded interested in purchasing the property. Simmons later told them that he was Runnymede, the Deven ports asked Simmons if he knew someone who m ight be investor — at a local restaurant. Because they had been contemplating selling On July 15, p. 2 2010, the Devenports ran into Simmons — a real estate

site. allow the forme r owner — not a party to this case — to maintain an office on property, they promised to operate it as a horse farm in perpetuity, a nd to grazing easement over adjoining lots. When the Devenports purchased the 1998. The property housed a barn, an apartment, and stables, and included a case, are relevant to our analysis. The Devenports bought Runnymede Farm in The following facts, taken from the trial court’s various orders in this

I. Factual Background p. 3 3

2011, the Devenports sold Runnymede to the Perkinses. Bullies’ efforts, the Devenports refused to sell it the property. Instead, in April Devenports purporting to invoke the option to purchase the farm. Despite Fat “own Runnymede within 24 hours.” Fat Bullies also sent a letter to the trial court, Simmons responded that he would sue the Devenports and would replied that they were not going to sell Simmons the farm. As stated by the Devenports if they were ready to close the sale on the property. Bret Devenport On October 12, 2010, Simmons visited Runnymede and asked the

still in school. Devenports had decided not to sell Runnymede because their children were operate Runnymede as a horse farm. However, the letter stated that the because she believed th at Simmons had lied to them when he promised to him that the Devenports no longer wanted to sell the farm. She sent this letter this, Lori Devenport sent a letter on October 11, 2010, to Simmons informing asking whether they were interested in purchasing Runnymede. After hearing Also in July 2010, Simmons began speaking to others in North Hampton,

avail. occasions Bret Devenport tried to speak with Simmons about payment, to no would return the call later, but it appears that he did not do so. On several manner of payment. Simmons told Bret Devenport that he was busy and Later that month, Bret Devenp ort called Simmons to speak about the

could see his grandchildren growing up on the farm. photographs of the property. While there, Simmons told Lori Devenport that he The next day, Simmons and Gould returned to Runnymede to take

Pursuant to this agreement, Fat Bullie s paid the Devenports $1,000.

most mutually beneficial for tax purposes. each other in order to determine the method of payment that is 4. During the 90 - day Option period, the parties shall consult with the recei pt of which is hereby acknowledged by Sellers. p. 3 3. That such Option shall be in consideration for $1,000.00 cash, 14, 2010. the signing of this Option. Such 90 - day period ends on October 2. That such Option shall be for a 90 - day period from the date of Farm, located at 62 Atlantic Avenue (“Property”) for $ 8 00,000. approximately 3 - acre farm, commonly known as Runnymede 1. That Buyer shall have an Option to Purchase (“Option”) the

Fat Bullies Farm (“Buyer”), do hereby agree as follows: The Parties, Bret Devenport and Lori Devenport (“Sellers”). . . and

to the Devenports as damages under the CPA; (3) determined that the were brought in bad faith; (2) awarded double attorney’s fees and double costs fees and costs to the Perkinses, finding that Fat Bullies’ claims against them the Devenports’ witnesses at trial. T he trial court also: (1) awarded attorney’s subpoena duces tecum and a ruling limiting the cross - examination of o ne of appeal include a ruling granting the defendants’ motion to quash a depositi on Bullies during the course of litigation. The adverse rulings relevant to this The trial court also made various non - dispositive rulings against Fat

on the Deven ports’ CPA claim, effectively adopt ing the jury’s advisory verdict. then denied Fat Bullies and Simmons ’s motion to set aside the advisory verdict Simmons, but in favor of Gould, on the Devenports’ CPA claim. The t rial court Additionally, the jury returned an advisory verdict against Fat Bullies and Bullies, Simmons, and Gould on the Devenport s ’ fraudulent inducement claim. a contract by a preponderance of the evidence, and a v erdict in favor of Fat breach of contract claim, finding that Fat Bullies failed to prove the existence of trial, the jury returned a verdict in favor of the Devenports on Fat Bullies’ interference claim. The Perkinses volunta rily non - suited their CPA claim. A fter summary judgment to the Perkinses on Fat Bullies’ remaining tortious for purported tortious interference with the option agreement, and granted court dismis sed Fat Bullies’ claim seeking equitable relief against the Perkinses The parties’ claims were resolved at various stages of litigation. T he trial

among other things. Consumer Protection Act (CPA), see RSA ch. 358 - A (2009 & Supp. 2016), the Devenports and Perkinses collectively asserted a claim under the Gould in which the Devenports asserted a fraudulent inducement claim, and Finally, the defendants brought an action against Fat Bullies, Simmons, and relations — one seeking monetary relief, and the other seeking equitable relief. actions against the Perkinses alleging tortious interference with contractual among other things, breach of the option agreement. It thereafter filed two court cons olidated. Fat Bullies first filed suit against the Devenports, alleging, This litigation consists of four separately filed actions, which the tria l

II. Procedural History

of the property to the Perkinses and this litigation followed. (Quotation omitted.) The Devenports refused to attempt to invalidate the sale

will cost you thousands of dollars and not cost me anything. You can run but you cannot hide. I will take you to court and it or the hammer is going to come down. I know where you live. . .. You’ve got to make this better. You have until Wednesday morning

stated something to the following eff ect: Simmons thereafter confronted Bret Devenport at a gas station, and p. 5 5

Inc., 162 N.H. 123, 129 (2011) (quotation omitted). claim, for example, is not a violation of the CPA.” George v. Al Hoyt & Sons, trade or commerce falls within its scope. Id. “An ordinary breach of contract is broadly wo rded, we have recognized that not all conduct in the course of general proscription that is at issue. Although the general provision of the CPA trade practices. State v. Moran, 1 p. 5 51 N.H. 450, 452 (2004). Here, it is the sets forth a list of specific types of conduct that qualify as unfair or deceptive The CPA proscribes unfair or deceptive trade practices in general, and

Massachusetts Consumer Protection Act). question of whether conduct is unfair or deceptive is a question of fact under Inc. v. Timex Corp., 421 F. Supp. 2d 226, 239 (D. Mass. 2006) (explaining that Beer v. Bennett, 160 N.H. 166, 168 - 69 (2010) (quotation omitted); cf. Incase, upheld unless they lack evidentiary support or constitute clear error of law.” co urse of co nduct.” “The trial court’s findings of fact and rulings of law will be Simmons violated the CPA by engaging in “one long unfair and unscrupulous Devenports contend that the t rial court properly ruled that Fat Bullies and contemplated by the act. RSA 3 p. 5 58 - A:2 (Supp. 2016). In opposition, t he that it did not constitute an “unfair o r deceptive act or practice” as that their conduct did not rise to the level of a CPA violation — in other words, they violated the CPA. See RSA ch. 358 - A. They assert, among other things, Fat Bullies and Simmons argue that the trial court erred in finding that

A. CPA C laim

at trial. We address these issues in turn. tecum and limiting the cross - examination of one of the Devenports’ witnesses (7) the trial court’s rulings quashing Fat Bullies’ deposition subpoena duces court’s ruling that Gould and Simmons were personally liable for payment; and determination as to the reasonableness of the requested fees; (6) the trial award of attorney’s fees and costs to the Perkinses; ( p. 5 5) the trial court’s purported tortious interference with the optio n agreement; (4) the trial court’s Perkinses on Fat Bullies’ claim seeking monetary relief for the Perkinses’ under the CPA; (3) the trial court’s grant of summary judgment to the court’s award of double attorney’s fees and costs to the Devenports as damages adoption of the advisory jury verdict on the Devenports ’ CPA claim; (2) the trial Fat Bullies, Simmons, and Gould now appeal: (1) the trial court’s

II I. Analysis

followed. for the payment of the Perkinses’ attorney’s fees and costs. This appeal costs; and (4) determined that both Simmons and Gould were personally liable that the Perkinses reasonably incurred $199,181.84 in fees and $9 p. 5 55. p. 6 60 in Devenports reasonably incurred $323,593 in fees and $18,233.41 in costs, and 6

pr ice was $800,000, produced a document . . . for signature not suggest they retain one. Simmons, despite knowing the asking deposit. The Devenports did not have a lawyer and Simmons did Simmons both believed to be a binding legal document and cash introduced Gould as his attorney and displayed what Gould and with Gould, who the Devenports did not know. Simmons . . . Simmons showed up without any prior notice at [Runnymede]

conduct. It reasoned: the general proscription of RSA 358 - A:2 applied to Fat Bullies and Simmons’s Here, when it adopted the advisory jur y verdict, the trial court found that

Snierson, 145 N.H. at 81. constituted “unfair or deceptive act[s] or practice[s]” under RSA 358 - A:2. See considered whether particular acts incidental to the sale of real estate by Averill v. Cox, 145 N.H. 328, 332 (2000). However, we have only once the act, Gilmore v. Bradgate Assocs., 135 N.H. 234, 23 p. 6 6 - 37 (1992), overruled conduct relating to the sale and development of condominiums is exempt from 79 (1999) (quotation and emphasis omitted); and (3) determined whether the conduct of any t rade or commerce,” Hughes v. DiSalvo, 143 N.H. 576, 577 - (2009); (2) considered whether a particular real estate transaction occurred “in estate,” Snierson v. Scruton, 145 N.H. 73, 8 0 - 81 (2000); see RSA 358 - A:1, II “commerce” as defined by the act “include[s] acts incidental to the sale of real estate transactions. Specifically, we have: (1) recognized that “[t] rade” and We have had limited o ccasion to interpret the CPA in the context of real

Moran, 151 N.H. at 453 (quotation omitted).

injury to consumers (or competitors or other businessmen). o ppressive, or unscrupulous; (3) whether it causes substantial concept of unfairness; (2) whether it is immoral, unethical, the penumbra of some common - law, statutory or other establi shed law, or otherwise — whether, in other words, it is within at least public policy as it has been established by statutes, the common necess arily having been previously considered unlawful, offends deceptive by inquiring: (1) Whether the practice, without The Federal Trade Commission determines if actions are unfair or

general proscription. Moran, 151 N.H. at 452 - 53; see RSA 358 - A:13 (2009). for guidance” when determi ning what actions are unlawful under the statute’s look to the federal courts’ interpretation of the Federal Trade Commission Act world of commerce.” Id. In addition to employing the rascality test, “we . . . wo uld 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 covered by the act, we have employed the ‘rascality’ test.” Id. “Under the “In determining which commercial actions not specifically delineated are p. 7 7

conclude that the misrepresentation of a buyer’s intention s regarding the Simmons misrepresented their intentions regarding Runnymede. However, we T he record supports the trial court’s determination that Fat Bullies and

A:2. conduct that was “unfair or deceptive” as contemplated by the CPA. RSA 358 court erred in finding that Fat Bullies and Simmons engaged in a course of defraud” plaintiff). Based upon our review of the record, w e hold that the trial funds owed to plaintiff out of “sham corporation” in “an intentional scheme to Massachusetts Consumer Protection Act when they “deliberately siphoned” (concluding defendants engaged in a “course of conduct” violating Inc., No. 912850, 1993 WL 818931, at *2 (Mass. Super. Ct. Oct. 6, 1993) deceptive acts and practices”); E. Microwave, Inc. v. Am. Private Line Servs., misrepresentations to avoid payment collectively constituted “course of (concluding misrepresentations to procure materials and use of same act or practice.” RSA 358 - A:2; s ee Milford Lumber Co., 14 p. 7 7 N.H. at 20 violative of the CPA when the acts collectively constitute an “unfair or deceptive N.H. 15, 20 (2001). However, a series of acts only becomes a course of conduct conduct can violate the CPA. See, e.g., Milford Lumber Co. v. RCB Realty, 147 We agree with the trial court and the Devenports that a course of

this conduct as “unscrupulous,” “deceptive,” and “unfair.” Devenports were in financial straits.” (Emphasis omitted.) The court described over the course of m ore than four years” — all while knowing “that the had the effect of causing the Devenports to incur over $200,000 in legal fees and the [Perkinses,] . . . [and] enact[ing] a contentious litigation strategy which action, . .. sen[ding] demand letters, ... br[inging] suit against the Devenports contract formation” and included “threaten[ing] the Devenports with legal “continuing course of conduct,” which “beg[an] with an unfair attempt at court found that Fat Bullies and Simmons violated the CPA by engaging in a additional findings relevant to the Devenports’ CPA cla im. Specifically, the In ruling up on the Devenports’ request for damages, the trial court made

threatened him. . . . This conduct was “oppressive” and unfair. at the gas station, he placed his hand on Bret’s car or arm and “unscrupulous” and unfair. When Simmons saw Bret [Devenport] grandchildren visit the farm. This conduct, the Court finds, was in raising llamas and cows, and expressed a dream of having his the hor ses, trophies and [the former owner], said he was interested Devenports’ promise to [the former owner]. He showed int erest in Bullies would keep Runnymede as a horse farm and honor the an option was. He led the Devenports into believing that Fat He d id not point out the change of term. He did not explain what document, an attorney, or changing the price term of the proposal. Devenports ahead of time that he would be bringing a binding legal depicting the sale price as $ p. 7 700,000. He did not warn the p. 8 8

20 (2007) (trial court err ed in ruling no rational juror could have found performance under the contract); Becksted v. Nadeau, 155 N.H. 615, 616, 619 bridge needed to complete road, and then misrepresented status of his estate developer for construction of road, accepted deposit from plaintiff for (rascality test met where defendant entered into contract with plaintiff real an enforceable contractual obligation. Cf. George, 162 N.H. at 126, 129 - 30 found that there was no contract, the misrepresentation was not made to avoid previously found to fall within the CPA’s general prosc ription. Because the jury misrepresentation differentiate it from the types of misrepresentations we have transactions, t he nature and circumstances of Fat Bullies and Simmons’s Moreover, even if we w ere to look outside the context of real property

agreed upon . . . purchase price”). sale, and that there were other buyers ready and willing to pay more than the seller misrepresented “that the property had not been previously marketed for (1st Cir. 1 p. 9 991) (concluding, as a matter o f law, that rascality test not met when merely because it encourages a sale. See Tagliente v. Himmer, 949 F.2d 1, 7 to the level of rascality necessary to establish a consumer protection violation Devenports to sell Runn ymede to Fat Bullies, a misrepresentation does not rise in oral communications”). A lthough the misrepresentation encouraged the and various other deficiencies in the property in a seller’s disclosure form and “misrepresented and withheld facts relating to the [property’s] septic system CPA whe n they alleged that defendants, as agents of sellers of real property, 75, p. 8 81 (holding that plaintiffs sufficiently stated a claim for relief under the the Statute of Frauds” did not satisfy rascality test); cf. Snierson, 145 N.H. at (finding breach of oral lease agreement that “was not enforceable because of Madan v. Royal Indem. Co., 532 N.E.2d 1214, 1218 (Mass. App. Ct. 1989) such an agreement is neither “unfair” nor “de ceptive” under RSA 358 - A:2. Cf. property is unenforceable, the misrepresentation of one’s intent to abide by transactions would know that an oral agreement restricting the use of real 1998). Because s omeone inured to the rough and tumble world of real estate Corp. USA, No. CIV. 96 - 596 - B, 1998 WL 544431, at *11 (D.N.H. Aug. 11, frauds, we apply the rascality test objectively. See Mulligan v. Choice Mortgage frauds. Although the Devenports may not have been aware of the statute of tumble world of real estate transactions would be aware of the statute of frauds” (citing Tibbetts)). We conclude that s omeone inured to the rough and use of real property i s within the application and operation of . . . the statute of cases on th[e] subject have concluded that an oral agreement restricting the of Frauds, 5 A.L.R.2d 1316, 1318 (1949) (noting that “a marked majority of the Annotation, Oral Agreement Restricting Use of Real Property as w ithin Statute agreement restricting use of land could not create a negative easement); frauds); Tibbetts v. Tibbetts, 66 N.H. 360, 361 - 62 (1890) (reasoning that oral of real property are generally unenforceable. See RSA 506:1 (2010) (statute of RSA 358 - A:2. Under t he statute of frauds, o ral agreements restricti ng the use rascality necessary for it to constitute an “unfair or deceptive act or practice.” future use of real property does not, as a matter of law, rise to the level of 9

Simmons’s remaining arguments regarding the CPA. the CPA. In light of this determination, we need not address Fat Bullies and CPA claim and its award of attorney’s fees to the Devenports as damages under For these reasons, we reverse the trial court’s ruli ng on the Devenports’

See Moran, 151 N.H. at 453. immoral, unethical, oppressive, or unscrupulous, or cause s substantial injury. cannot conclude th at the subject conduct offend s established public policy, is “moving target [litigation] strategy” and engaged in “discovery abuses”). We conduct in violation of consumer protection law whe n offending party utilized 274, 308 (D. Mass. 2011) (considering litigation tactics part of course of violation); Trenwick America Reinsurance Corp. v. IRC, Inc., 764 F. Su pp. 2d disagreement over the meaning of contract terms” was not consumer protection 2012) (concluding that bringing of lawsuit regarding “a reasonable Monotype Imaging Inc. v. Deluxe Corp., 883 F. Supp. 2d 317, 323 (D. Mass. Eastern Motor Inns, Inc. v. Ricci, 565 A.2d 1265, 1274 (R.I. 1 p. 9 989))); cf. to justify a claim for damages’ under the Consumer Protection Act.” (quoting 382, 390 (1996) (“‘[S]elfish bargaining and business dealings will not be enough world of commerce.” George, 162 N.H. at 129; see Barrows v. Boles, 141 N.H. would not “r aise an eyebrow of someone inured to the rough and tumble of the enforce an option agreement, and pursuing a contentious litigation strategy language contained in the draft agreement, threatening and attempting to counsel, attempting to negotiate price, not explaining the meaning of the and a n option agreement, not recommend ing that the Dev enports obtain legal Even taken together, the acts of showing up unannounced with an attorney with the remainder of their course of conduct does not alter our determination. Viewing Fat Bullies and Simmons’s misrepresentation in conjuncti on

disclaiming liability”). procure lumber,” and then “used those same misrepresentations as a basis for party] to facilitate the use of [the third party’s] account with the plaintiff to intentionally vague representations reg arding their relationship with [a third 1 p. 9 9 - 20 (affirming trial court’s finding of CPA violation whe n defendants “made only to later be used to disclaim liability. Cf. Milford Lumber Co., 147 N.H. at perform the work”). The misrepresentation was not used to obtain a benefit advance for construction materials “at a time when he clearly did not intend to homeowner then used misrepresentations to induce homeowner to pay in reasonably found that defendant entered into construction contract with 151 N.H. at 450 - 51, 453 - 54 (rascality test met whe n trial c ourt could have concerning law firm’s payment obligation under construction contract); Moran, intentionally sent plaintiffs inflated legal bill to use as leverage in dispute rascality test met because rational jury could have found that defendants p. 10 10

attorney’s fees whe n specifically authorized by statute. Id.; see, e.g., RSA 358 - However, we have recognized exceptions to this rule. Id. A court may award attorney’s fees. In t he Matter of Mallett & Mallett, 163 N.H. 202, 211 (2012). The general rule in New Hampshire is that parties pay their own

Simmons directed against the Devenports.” (Quotations omitted.) course of unfair, unscrupulous, and oppressive conduct that Fat Bullies and tortious interference claims] were brought in bad fait h as a continuation of the trial court provide ample support for the court’s determination that [the faith mistake.” In opposition, the Perkinses argue that “the facts found by the interference claims against the Perkinses w as, “at most, a considered but good They contend, among other things, that their filing of the two tortious awarding attorney’s fees and costs to the Perkinses on grounds of bad faith. Fat Bullies, Simmons, and Gould next argue that the trial court erred by

C. Award of A ttorney’s F ees and C osts to the Perkinses

contractual relations claim. summary judgment to the Perkinses on Fat Bullies’ tortious interference with affected” (quotation o mitted)). Accordingly, we affirm the trial court’s grant of final judgment at the arbitration hearing, the outcome of the case was not outcome,” and concluding that, “[a]lthough the trial judge erred in entering a (explaining that “[a] harmless error is an error that does not affect the with a third party”); Attorney Gen eral v. Morgan, 132 N.H. 406, 408 (1989) plaintiff must prove, among other things, that it “had a contractual relationship that, t o succeed on claim for tortious interference with contractual relations, conclusion” reached by the trial court); Barrows, 141 N.H. at 392 (explaining harmless when we “identified other grounds that independently compel the See McNair v. McNair, 151 N.H. 343, 355 (2004) (concluding any error was finding that there wa s no contract, we conclude that any error was harmless. that the trial court erred in making this determination, in light of the jury’s with the option agreement. (Quotation omitted.) Assuming, without deciding, of material fact that the Perkins[es] intentionally and improperly interfered” ruled that Fat Bullies “failed to present any evidence showing a genuine issue In its order granting summary judgment to the Perkinses, the trial court

there were material facts in dispute.” (Emphasis omitted.) They contend that, “at a minimum, the trial court should have concluded that determinations that should have been left for the jury. (Emphasis omitted.) in a light most favorable to Fat Bullies” and erroneously made credibility option agreement. They assert that “[t]he trial judge did not set forth the facts monetary relief for the Perkinses’ purported tortious interference with the granting summary judgment to the Perkinses on Fat Bullies’ claim seeking Next, Fat Bullies, Simm ons, and Gould argue that the trial court erred in

B. Tortious I nterference C laim p. 11 11

the Perkins [es] had torti ously interfered with the [o]ption.” Based upon our relations seeking equitable reli ef; and (2) failed to “produce[] any evide nce that Bullies: (1) failed to state a claim for tortious interference with contractual the claims against the Perkinses “should never have been brought” because Fat an y judgment it sought, and perhaps as a litigation strategy.” It explained that because [it] feared that the Devenports did not have sufficient money to pay brought the tortious interference claims against the Perkinses “[p]erhaps of conduct” that it ruled violative of the CPA. It reasoned that Fat Bullies Bullies’ initiation of the lawsuit against the Perkinses was “part of th [e] course interference claims against the Perkinses “in bad faith,” explaining that Fat Here, the trial court found that Fat Bullies brought its tortious

trial court’ s d eterminat ion, we will uphold it.” Id. fees.” Id. (quotation omitted). “If there is some support in the record for the the tremendous deference given a trial court’s decision regarding attorney’ s party.” Id. “In evaluating the trial court’ s ruling on this issue, we acknowledge untenable or to an extent clearly unreasonable to the prejudice of the objecting warrant reversal, the discretion must have been exercised for reasons clearly absent an unsustainable exercise of discretion.” Frost, 163 N.H. at 377. “To “We wi ll not overturn the trial court’ s decision concerning attorney’ s fees

(quot ation omitted). WBTSCC Ltd. P artner ship, 169 N.H. __ _, __ _, 151 A.3d 949, 961 (2016) vindicate rights, as well as to discourage frivolous lawsuits.” Jesurum v. private party who has acted in bad faith, the purpose is to d o justice and Id. at 378 (quotation omitted). “When attorney’ s fees are awarded against a

have brought the action. [when] it should have been unnecessary for the successful pa rty to can be characterized as unreasonably obdurate or obsti nate, and wantonly, or for oppress ive reasons, [when] the litigant’ s conduct appropriate [when] one party has acted in bad faith, vexatiously, U nder the bad faith litigation theory, an award of attorney ’ s fees is

78 (2012) (quotation omitted). substantial benefit.” Frost v. Comm ’ r, N. H. Banking Dep’t, 163 N.H. 365, 377 this State based upon two separate theories: bad faith litigation and “As to judicially - created exceptions, attorney’s fees have been awarded in

prosecuting a lawsuit.” Harkeem v. Adams, p. 11 117 N.H. 687, 690 (1977). principle that no person should be penalized for merely defending or litigant is ordinarily not entitled to collect his counsel fees from the loser is the general rule. Mallett, 163 N.H. at 211. “Underlying the rule that the prevailing an agreement between the parties or a judicially - created exception to the A:10, I (2009). Otherwise, an award of attorney’s fees must be grounded upon p. 12 12

material fact as to one of the elements of a tortious in terference claim — concluded only that there was insufficient evidence to create a genuine issue of Rather, based upon its review of the summary judgment record, the trial court support its claims against the Perkins [es],” the trial court made no such ruling. Perkinses argue that “the trial court ruled [that] Fat Bullies had no evidence to Bullies ’ tort ious interference claims were patently unreasonable. Although the Based upon our review of the record, we cannot conclude that Fat

it might arguably be held to be.” Glick, 143 N.H. at 175 (quotation omitted). the facts provable by evidence, or any reasonable claim in the law as it is, or as commenced, prolonged, required or defended without any reason able basis in bad faith” (quotation omitted)). “A claim is patently unreasonable when it is N.H. 172, 175 (1998) (describing a party’s unreasonableness as “a variety of position is patently unreasonable” (qu otation omitted)); Glick v. Naess, 143 be awarded to “those who are forced to litigate against an opponent whose Owners’ Ass oc., 150 N.H. 111, 117 (2003) (recognizing that attorney’s fees may patentl y unreasonable. See Grenier v. Barclay Square Commercial Condo. clear, we construe it as finding that the claims against the Perkinses were survive a motion for summary judgment. Although the trial court’s order is not interference claims failed to survive a motion to dismiss, and the other failed to Finally, the trial court pointed out that one of Fat Bullies’ tortious

another defendant. defendant whe n it fears that it may not be able to collect on a judgment against enga ges in bad faith litigation merely by bringing suit against a solvent articulate, the Perkinses do not argue, and we cannot discern, how a plaintiff if the trial court had made such factual finding s, the trial court did not (20 p. 12 12) (stating that we interpret trial court orders de novo). Additionally, even v. Superintendent, Strafford C ounty House of Corr ections, 163 N.H. 515, 519 ed. 2002) (defining “perhaps” as “possibly but not certainly: MAYBE”); Fischer Perkinses. See Webster’s Third New International Dictionary 1679 (unabridged factual findings about Fat Bullies ’ motive in bringing suit against the trial court’s use of the term “perhaps” indicates that it did not make any Devenports did not have sufficient money to pay any judgment.” However, the against the Perkinses “as a litigation strategy” or “because [it] feared that the Next, the trial court noted the possibility that Fat Bullies brought suit

not violate the CPA. discussed above, as a matter of law, Fat Bullies and Simmons’s conduct did “part of th [e] course of conduct” that it earlier ruled violative of the CPA. A s concluded that Fat Bullies’ initiation of the lawsuit against the Perkinses was none of which properly supports such a finding. F irst, the trial court The trial court appeared to offer three bases for its finding of bad faith —

its discretion to the prejudice of Fat Bullies. Id. review of the record, we conclude that the trial court unsustainably exercised p. 13 13

Fat Bullies’ tortious interference claim against the Perkinses seeking monetary been elicited on cross - examination was relevant to the court’s assessment of that the evidence sought by the subpoena and the evidence that would have examination of one of the Devenports’ witnesses at trial. They appear to assert quashing Fat Bullies’ deposition subpoena duces tecum and limiting the cross - Fat Bullies, Simmons, and Gould also argue that the trial court erred by

F. Remaining I ssues

Perkinses, we need not address thi s issue. concluded that the trial court erred in awarding attorney’s fees and costs to the payment of the Perkinses’ attorney’s fees and costs. Because w e have determining that both Simmons and Gould are personally liable for the Fat Bullies, Simmons, and Gould next argue that the trial court erred by

E. Gould’s and Simmons’s Personal L iability

find it unnecessary to address these arguments. awards of attorney’s fees and costs to the Devenports and the Perkinses, w e relating to this issue. However, because w e have reversed the trial court ’s the Devenports and to the Perkinses. The parties raise various arguments determination s concerning the reasonableness of the attorney’s fees awarded to Fat Bullies, Simmons, and Gould next challenge the trial court’s

D. Reasonableness of Fees and Costs

attorney’s fees and costs to the Perkinses under Harkeem. hold that the trial court unsustainably exercised its discretion in awarding proper basis for the trial court’s finding of bad faith litigation. Accordin gly, we In sum, we conclude that none of the proffered justifications provide a

at 690. penalized for merely defending or prosecuting a lawsuit.” Harkeem, 117 N.H. to the Perkinses would run counter to the principle that “no person should be N.H. at 175 (quotation omitted). Under such circumstances, a n award of fees “without any reasonable basis in the facts provable by evidence.” Glick, p. 14 143 Fat Bullies’ claim s that the Perkinses interfered with the option agreeme nt were grazing rights in an LLC.” I n light of this evidence, we cannot conclude that secondary driveway easement and to place ownership of. . . Runnymede[’s] home in October of 2010, at which the members voted “to eliminate an unused Runnymede Farm Homeowners Association held a meeting at the Perkinses’ up to the cancellation of the [o]ption [a]greement,” and evidence that the Perkinses, th e Devenports, and the Devenports’ attorney “in the days leading telephone records indicating that there were “frequent phone calls” between the Perkinses interfered with the option agreement, Fat Bullies submitted specifically, interference. Further, i n support of its argument that the 14

DALIANIS, C.J.