2018-0327, James Boyle, Individually and as Trustee of the 150 Greenleaf Avenue Realty Trust v. City of Portsmouth

State. assistant attorney general, on the memorandu m of law and orally), for the Gordon J. MacDonald, attorney general (Christopher G. Aslin, senior

for the defendant. (Bruce W. Felmly and Benjamin B. Folsom on the brief, and Mr. Felmly orally), Robert J. Dietel on the brief), and McLane Middleton, P.A., of Manchester Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and

Manchester (Joshua Wyatt and David P. Eby on the brief), for the plaintiff. Kuzinevich on the brief and orally), and Devine, Millimet & Branch, P.A., of Law Offices of John Kuzinevich, of Duxbury, Massachuse tts (John

No. 2018 - 0327 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

provide reasonable compensation to Boyle from November 1 p. 2 2, 2013, “until the compensating the City for the cost of removing the sewer line; (7) the City must reasonable time”; (6) the “equities of the present case do not justify” the sewer line or obtain easement rights by eminent domain within a sewer line is trespassing on Boyle’s property; (5) the City must “either remove as of November 12, 2013, Boyle “unequivocally” revoked the license; (4) the City obtain ed only a revocable license to install and maintain the sewer line; (3) an easement in the sewer line by estoppel, ratification, or prescription; (2) the determined with respect to the trespass claim that: (1) the City does not have parties cross - moved for summary judgment. In its o rders, t he trial court of water” due to the improper maintenance of the sewer line. In 2013, the result of the presence of the sewer line,” and nuisance from the “accumulation In 2010, Boyle sued the City, alleging, among other things, trespass “as a

line on his property as the parties attempted to resolve the issue. contacted the City’s attorney and granted the City permission to keep the sewer exi sting dealership, Toyota of Portsmouth. Shortly after this discovery, Boyle he sought to develop the property to add an automobile dealership next to his conveyed the property to Boyle. In p. 2 2004, Boyle discovered the sewer line when the property to MSM Brothers, Inc. (MSM), and on December 30, 2003, MSM tenants - in - common. On October 21, 1988, the ten ants - in - common conveyed the property on February 18, 1983, to three New Hampshire residents as of the Vocational - Technical Institute in Portsmouth.” T he State thereafter sold of the City of Portsmouth to extend a sewer line across the rear of the property 20, 1967, the B oard approved “the request by the Department of Public Works Board of Education (Board) had constructed a vocational school. On November 1967, the State owned the property at issue upon which the New Hampshire The trial court found, or the record supports, the following facts. In

Boyle’s lost profits claim and vacate the jury award, and remand. rulings concerning the t iming of Boyle’s dam ages, reverse the court’s ruling on City had only a revocable license in the sewer line, reverse, in part, the court’s permanent rights in the sewer line. We affirm the trial court’s ruling that the to set aside the jury’s award; and ( p. 2 2) determining that the City did not have erred in: (1) permitting Boyle’s lost profits claims to go to the jury and refusing evide nce of future lost profits after 2016. T he City asserts that the trial court as a matter of law tha t the City’s trespass began in 2013; and (2) excluding all On appeal, Boyle contends that the trial court erred in: (1) determining

nuisance arising from the City’s sewer line on his property. (Delker, J.) in which the jury awarded damages to Boyle for trespass and Portsmouth (City), cros s - appeals, following a trial in the Superior Court the 150 Greenleaf Avenue Realty Trust, appeals, and the defendant, City of DONOVAN, J. The plaintiff, James Boyle, individually and as Trustee of p. 3 3

permission. See Taylor v. Ge rrish, 59 N.H. 569, 571 (1880). The character of become adverse in nature without an explicit repudiation of the earlier omitted)). When use of another’s land begins with permission, it cannot owner that an adverse claim was being made to it” (quotation and brackets and uninterrupted use of the land must be such “so as to give notice to the (2011); Burke v. Pierro, 159 N.H. 504, 512 (2009) (the adverse, continuous, uninterrupted use of the land. See Marshall v. Burke, 162 N.H. 560, 564 n. p. 3 3 preponderance of the evidence, twenty years of adverse, continuous, and To establish an easement by prescription, the claimant must prove, by a

1. Prescriptive Easement

de novo. Id. 644, 648 (2015). We review the trial court’s application of the law to the facts will affirm the grant of summary judgment. See Conant v. O’Meara, 167 N.H. exists, and if the moving party is entitled to judgment as a matter of law, we its capacity as the nonmoving party and, if no genuine issue of material fact judgment, we consider the evidence in the light most favorable to each party in In reviewing the trial court’s rulings on cross - motions for summary

revocable license from the Board. recognized under New H ampshire law” and that, at most, the City obtained a adverse claims.” Further, he argues that irrevocable licenses “are not a ll owners prior to him and, therefore, there “is no evidence [the City] made evidence in the record” is that the City had permission for the sewer line from that it met the criteria for an irrevocable license.” Boyle counters that “the o nly that it “proved that it has a prescriptive easement” and that it “demonstrated Acknowledging that it does not have a recorded easem ent, the City contends determining that it does not have permanent rights in the sewer line. We first address the City’s argument that the trial court erred in

A. The Sewer Line

followed. denied the parties’ post - trial motions, and this appeal and cross - appeal of the nuisance. Boyle was awarded $ p. 3 3,570, 000 in da mages. The trial court the property, and that Boyle wa s also e ntitled to recover lost profits as a result lost profits for the trespass, that the City created a nuisance due to water on water impounded by the sewer line. The jury found that Boyle wa s entitled to trespassing sewer line and on liability and da mages for nuisance caused by A ten - day jury trial was held in early 2017 on damages for t he

damages is subject to jury trial. line is removed or easement rights are acquir ed”; and (8) the amount of p. 4 4

executed, meaning the li censee detrimentally relied on the permission and could become irrevocable even if they were orally given as long as they were trial court noted that “[e]arly New Hampshire case law recognized that licenses became irrevocable upon its expenditure of funds to install the sewer line. T he T he City argued in its motion for summary judgment that its license

2. Irrevocable License

does not have an easement by prescription. intention”). Accordingly, we af firm the trial court’s determination that the City adverse, they should have done some un equivocal act showing such commenced under a license, “if the defendants . . . would have had their use [ ] revoked permission. See Taylor, 59 N.H. at 571 (the use having been that the City’s use of the sewer line was anything but permissive until Boyle Ucietowski v. Novak, 102 N.H. 1 p. 4 40, 144 (1959). Again, there is no evidence give notice to the record owner that an adverse claim was being made to it.” continuous, uninterrupted use of the land claimed “in such a manner as to City to prove by the balance of probabilities twenty years of adverse, establishing prescriptive rights was running.” However, the burden was on the Property from the State to [the tenants - in - common] and the period for of its new ruling, that the license was revoked by the conveyance of the asserts that as a matter of law the trial court “should have determined, in light permissive - versus - adverse aspect of” the City’s use of the sewer line. The City lice nse, it then erroneously “failed to reconsider how that. . . impacted the of its initial summary judgment order that the City has only a revocable The City also argues that when the trial court found on reconsideration

revoked permission. the City’s use of the land was anything other than permissive until Boyle interpretation of the statute is correct, there is no evidence in the rec ord that December 2003.” Even assuming, without deciding, that the City’s twenty years later on February 18, 2003, well before Boyle’s purchase in “the prescriptive period starte d to run on February 18, 1983” and “ripened from running on land once it is privately owned.” Therefore, the City asserts, land while it is owned by the State,” but does not “preclude adverse possession construed, th e statute prohibits adverse possession from accruing against the initia l grantees” owned the property. According to the City, “[p]roperly period “would not run during the times both that the State and the State’s adverse possession as to State - owned lands,” as providing that the prescriptive The City argues that the court “misinterpreted RSA 539:6, w hich prevents State’s grantees — the tenants - in - common — conveyed the property to MSM. prescriptive period did not begin to run until October 21, 1988, when the The City asserts that the trial court erroneously determined that the

Gowen v. Swain, 90 N.H. 383, 38 p. 5 5 - 8 6 (1939). the use is a question of fact and the burden of proof remains on the claimant. 5

asserts that the trial court erred in determining that he revoked the City’s Next, we consider the parties’ arguments concerning damages. Boyle

B. Damages

school land to erect a sewer line.” Frauds,” the City “only obtained a revocable license to use the v ocational trial court’s determination that “[a]bsent a writing that satisfied the Statute of decline the City’s request that we “revisit” Houston. Accordingly, we affirm the the law is unfair in this case. In the absence of developed argument, we The City does not address any of these factors, but simply claims that

justification. Id. at p. 5 505. differently, as to have robbed the old rule of significant application or doctrine; and (4) whether facts have s o changed, or come to be seen so developed as to have left the old rule no more than a remnant of abandoned the consequence of overruling; (3) whether related principles of law have so far the rule is subjec t to a kind of reliance that would lend a special hardship to has proven to be intolerable simply in defying practical workability; (2) whether omitted). Several factors inform our judgment, including: (1) whether the rule enforcement was for that very reason doomed.” Id. at 504 - 05 (quotation novo, but whether the ruling has come to be seen so clearly as error that its holding, the question is not whether we would decide the issue differently de N.H. 502, 504 (2003) (quotation omitted). “Thus, when asked to reconsider a unpredictable results.” Jacobs v. Director, N.H. D iv. of Motor Vehicles, 149 deciding cases becomes a mere exercise of judicial will with arbitrary and of law, for when governing legal standards are open to revision in every case, “The doctrine of stare decisis demands respect in a society governed by the rule We interpret the City’s argument as a request that we overrule Houston.

injustice.” substantial resources in reliance on the license and when required to prevent for the use of land may become irrevocable when a licensee has expended from other jurisdictions, the City contends that we should “hold that a license adherence to the posi tion enunciated in Houston v. Laffee.” Citing case law revisit the issue” to avoid the “severe damage and unfair impacts by rigid inconsistent with this Court’s case law from the 19 Century, it is time to th On appeal, t he City argues that, “to the extent an irrevocable license is

a t p. 5 507. license the force of a conveyance of a permanent easement in real estate.” Id. Houston C ourt reasoned that t o hold otherwise “would be giving to a parol Statute of Frauds. See Houston v. Laffee, 4 p. 6 6 N.H. 505, 507 - 08 (1866). The license could never become an easement because it does not comply with the early case law was overruled by Houston v. Laffee, which held that a parol expended resources in that reliance.” However, as the trial court stated, that 6

previously granted” in 2004 to the City. remove the Line, it does not state that it is revoking the permission Boyle revoke the City’s license because, although the letter “demands that [the City] (Quotation omitted.) The City also asserts that Boyle’s 2008 letter did not keep the line on the property “u ntil t he parties resolved the matter.” any time period prior to 2013, because Boyle had given the City permission to correctly determined that Boyle was not entitled to damages for trespass for additional. . . six years of damages.” The City counters that the trial court how a parol license is revoked,” and, consequently, “deprived [him] of an did not constitute a revocation of the City’s license “ignored black letter law on On appeal, Boyle argues that the trial court’s ruling that the 2008 letter

to have the sewer line on his pr operty.” determined that “[a]s of November 12, 2013, Boyle formally revoked permission City has been trespassing since that date.” The trial court subsequently [his] demand for the sewer line to be removed. It is [his] legal position that the 2008 which revoked all prior permissions for the sewer line, which constitute s “[n]othing in this letter is with prejudice to the letter . . . dated February 7, steps to have it removed as allowed by law.” The letter further stated that demanded that the City “immediately remove it, failing of which, [he] shall take use or presence of the sewe r line from today and through the future” and he of Portsmouth stating that he “hereby revoke[s] any license for the continued On November 12, 2013, Boyle sent a letter to the Mayor and City Council

trespass. to remain on his property pending the outcome of the litigation, there was no however, that because Boyle had granted permission in 2004 for the sewer line wanted the sewer line removed from his property. The trial court found, judgment that the 2008 letter constituted a “formal demand” to the City that he prevent unauthorized access.” Boyle asserted in his cross - motion for summary owner as it had in t h e past, . . . it is [Boyle’s] intent to erect suitable barriers to further that, “[s]ince the City has no easement, or permission from the current immediately remove the sewer lines from the property.” The letter stated the continued presence of the sewer lines,” and demanding that “the City without an easement,” expressing his belief that there is no “justifica tion for challenging the City’s “right to have multiple sewer lines on the property On February 7, 2008, Boyle’s attorney sent a letter to the City’s attorney

1. Revocation of the City’s License

jury and in refusing to s et aside or remit the jury’s award. assert s that the court erred in allowing Boyle’s lost profit s claims to go to the also argues that the court erred in precluding damages after 201 p. 6 6. The City license in 2013, thereby precluding evi denc e of d amages prior to that date. He p. 7 7

always got the appropriate permits from the City.” engineering work,” “State permits were in process,” and Boyle testified “how he and nuisance,” including that “[t]here was h undreds of thousands of dollars of certain grounds to develop another operational dealership but for the trespass counters that there was “extensive evidence showing Mr. Boyle had reasonably was “reasonably certain t o exist.” (Bolding and capitalization omitted.) Boyle insufficient evidence to establish that Boyle’s “hypothetical future dealership” allow Boyle’s claim for lost profits to go to the jury because there was The City argues in its cross - appeal that it was error for the trial court to

2. Lost Profits

further proceedings consistent with this decision. date of the trespass beg an in 2013, rather than in 2008, and remand for at resolution.” Accordingly, we reverse the trial court’s ruling that the effective reasonably allowing the sewer line to remain on his property pending attempts negotiated or determined in the courts” and he should not be penalized “for resorting to self - help and destroying the sewer line as the matter was being demonstrated that he did not revoke permission, as Boyle explains, he “was not the City asserts that Boyle’s continued attempt s to resolve the sewer line issue notice of the licenser’s intention.” Batchelder, 58 N.H. at 269. To the extent specific langu age be used, so long as the writing “clearly giv[es] the licensee because it did not expressly use the wor d “revoke,” there is no requirement that Although the City argues that Boyle’s letter was ineffectual as a revocation revoked all prior permissions and constituted a revocation of the City’s license. We agree with Boyle that, as a matter of law, the 2008 letter expressly

license). effectual,” including cutting off a pipe for the purpose of putting an end to the (the defendant “had the right to revoke his license in any way that should be the defendants and they revoked it by erecting a wall); Houston, 46 N.H. at 50 p. 8 8 and passageways in the defendants’ building was revocable at the pleasure of 162 (1901) (the license from the defendants to the plaintiffs to use stairways not to cut the wood and timber on his property); Quimby v. Straw, p. 7 71 N.H. 160, plaintiff exercised his right of revocation by expressly notifying the defendants license, if one existed); Hodsdon v. Kennett, 73 N.H. 225, 226 (1905) (the defendant any right in the premises, which was sufficient revocation of the her land from the defendant’s dam was notice that the plaintiff denied the (1923) (the plaintiff’s complaints and demands for reparation from flowage on 58 N.H. 269, 269 (1878); s ee Steinfield v. Monadnock Mills, 81 N.H. 152, 156 giving the licensee notice of the licenser’s intention.” Batchelder v. Hubbar d, revocation of a parol license may be in writing, or verbal, or by acts clearly grant of real estate.” Blaisdell v. Railroad, 51 N.H. 483, 485 (1871). “The between the two, if the writing has not the legal requisites to make it a deed or Parol licenses “may be in writing, or verbal; but there is no distinction 8

urban planning to testify, reasoning that the witness could “educate the jury” Over the City’s objection, the trial court allowed Boyle’s expert witness on

get all of [the permits].” opinion because he “didn ’t see any problem with it” and he “figured he could additional car dealerships on the property; and (6) Boyle never sought a zoning has not conducted a feasibility study to determine whether he could locate no t secured financing to fund the construction of a second building; (6) Boyle because he cannot apply for one until he has permits to build; (5) Boyle has pending; (4) Boyle does not have a dealer franchise for a second dealership Department of Environmental Services for developing in the wetlands are still requests for an alteration of terrain permit and we tlands permit from the have issued a decision regarding potential permits or variances; (3) Boyle’s indefinite; (2) neither the zoning board of appeals nor the planning department shortly thereafter requested tha t the board postpone site plan review to a time submitted development plans to the Portsmouth planning board in 2009, but property. His testimony included the following representations: (1) Boyle At trial, Boyle testified about his plans to further develop the

entitled to recover lost profits, gen erally.” profits “pending the admissibility of prima facie evidence at trial that Boyle is court, therefore, deferred ruling on the admissibility of expert testimony on lost the necessary permits, [and] the timetable for securing said permits.” The “whether Boyle could have gotten a franchise, whether he could have obtained evidence.” The court identified those questions as including, for example, “a re significant factual questions which directly impact the admissibility of this ‘reasonably certain to result’ but for the City’s alleged conduct” and that there that any amount of claimed profit from a desired second dealership was amount of lost profit damages is only relevant if Boyle successfully establishes Following a hearing, the trial court determined that “evidence as to the

which a reasonable jury could calculate lost profits.” agreements in place. Therefore, the City asserted, “there is no evidence upon approval from the State, and does not have any franchise /dealership municipal approval to build a dealership on the property,” has not obtained claim for lost profits w as too specula tive because he “has not . . . obtained alleged lost profit s damages. The City argued, among other things, that Boyle’s Prior t o trial, the City moved in limine to exclude evidence and claims of

testimony. Id. court’s judgments on the credibil ity of witnesses and the weight to be given (200 p. 8 8). When performing this review we accord considerable weight to the trial evidential support or tainted by error of law. Tosta v. Bullis, 156 N.H. 763, 767 uphold the finding s and rulings of the trial court unless they are lacking in We review sufficiency of the evidence claims as a matter of law, and p. 9 9

A I am not.

probabilities or not? Q . . . Are you basing your opinion that you’ve provided on

. . ..

reasonable to assume he will get those approvals, yes. zoning ordinance has applied for a reasonable project, and it’s A My testimony is that Mr. Boyle, based on the plan and the

are you? planning board, regarding these variances and conditional uses, permit by the adjudicato ry bodies, that is, the ZBA and the opinion that Mr. Boyle will be issued either a planning or a zoning Q . . . And you’re not telling this jury, are you, that it is your

following exchange with the City’s attorney, the witness testified: provide [his] opinion as to the reasonableness of Mr. B oyle’s proposal.” In the “certainly not [there] to provide a probability estima te” but was there “to than not that Boyle’s development would be approved, stating that he was The witness declined t o offer any opinion as to whether it is more likely

planner about the development project. conservation commission, and that he never spoke with the Portsmouth city before the Portsmouth zoning board of adjustment, planning board, or probably required.” The witness acknowledged that he has never appeared second dealership because, in his opinion, “a conditional use permit is Environmental Services may play a role in Boyle’s effort to obtain approval for a coverage.” In addition, the witness testified that the Department of the zoning ordinance, and “may need a variance from an impervious surface sideline setback,” “may need a variance from the outdoor storage provisions” of regulations in Portsmouth, but testified that Boyle “may need variances from connected to the existing dealership is consistent” with the applicable authorities. The witness offered his opinion that “the second dealership which an applicant develops a plan and gets it approved by the regulatory Boyle’s urban planning expert testified about the general process by

how else you get to the issue of lost profits without that evidence. dealership would have succeeded in this process? So, I don’t see mean that’s the issue. Is it more probable than not that a second that this projec t would have made it through that process or not. I the jury can then make a conclusion whether it thinks it’s likely

adjustment and about the process o f going before a local planning board or zoning board of p. 10 10

by proof the extent of the harm and the amount of money compensatory damages for the harm if, but only if, he establishes [o]ne to whom another has tort iously caused harm is entitled to

(quotation omitted). In a tort cause of action, Family Trust and Kenneth Dash Partnership, 142 N.H. 501, 517 (1997) cannot be awarded for “speculative losses.” Miami Subs Corp. v. Murray Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270, 296 (1992), damages 136 N.H. 721, 726 (1993). While “absol ute certainty” is not required, Great of lost profits and the amount with reasonable certainty. See Fitz v. Coutinho, T o establish a claim for lost profits, the plaintiff must prove both t he fact

would have gone forward and he would have cleared those hurdles.” variances,” the jury could conclude that “‘but for’ the sewer line, this process stating that because the expert “opined th at Mr. Boyle would be able to get the Boyle had not set forth a prima facie case. The trial court denied the motion, met . . . regardless of whether the wetlands are on the property” and, therefore, setback requirement for any business from a residential district that has to be argued that Boyle’s expert testified that “in fact there is a variance for a satisfied in order for him to get a second dealership. For example, the City b ecause there were conditions irrespective of the wetlands that had to be on the property are the “but for” cause of his inability to get a dealership arguing that Boyle had failed to establish a prima facie case that the wetlands The City moved for a partial directed verdict at the close of Boyle’s case

allowed Boyle’s expert on los t profits to testify. secured a second dealership “that was up and running.” Accordingly, the court property,” Boyle’s plans “would have come to fruition” and he would have th at but for the existence of the sewer line and/or trespassing water on the trial court disagreed, ruling that based on the evidence “a jury could conclude permits from the city for the second dealership but for these wetlands.” The circumstantial evidence” that Boyle “would have received or not received from a manufacturer and “[t]here’s been no showing, no direct or affirmative evidence” that Boyle would have secured a dealership franchise secure a dealership and secure permits. The City argued that there was “no arguing that Boyle had failed to establish a prima facie case that he could City renewed its objection to the admission of evidence of lost profits damages, Prior to testimony from Boyle’s expert on the amount of lost profits, the

A No. Based on reasonableness.

based on probabilities, are you? the city will grant permits for Mr. Boyle, if you had an opinion Q You’re not giving an opinion whether, based on probability, that p. 11 11

Id. at 754. rezoning, variance, or permits for commercial development on the property.” whatsoever suggesting that the [local regulatory authority] would approve a use,” the Sixth Circuit noted that the landowner “did not present any evidence any reasonable probabi lity that the property could be rezoned for commercial Affirming the district court’s determination that the landowner “did not show regulations and that he had not actually sought a rezoning. Id. at 746 - 47. that a hotel was not a permitted or conditional use under the zoning highest and best use of his property was for a hotel, despite ackn owledging 821 F.3d 742 (6th Cir. 2016), the landowner testified that in his opinion, the land.” Id. at 8. Likewise, in Tennessee Valley Authority v. 1.72 Acres of Land, variance, or permits for residential developmen t or sand extraction on this and had not made any showing that the board “would approve a rezoning, court noted that the landowner had not spoken to anyone at the zoning board exclusion of the landowner’s highest and best use evidence. Id. at 8 - 9. The in the near future.” Id. at 4 - 5. The First Circuit affirmed the district court’s Planning Board would either change the zoning or grant a variance at any time expe rt’s “opinion, by itself, fails to establish a reasonable probability that the was for the construction of residences and sand extraction, because the landowner’s expert’s testimony that the highest and best use of the property district court granted the government’s motion in limine to exclude the uses were allowed without a variance or permit. Id. at 3 - 4. Prior to trial, the issue was zoned for conservation and passive recreation purposes and no other For example, in United States v. 33.92356 Acres of Land, the property at

2009). near future. United States v. 33.92356 Acres of Lan d, 585 F.3d 1, 7 (1st Cir. is only relevant if the use is likely to be “reasonably probable” in the reasonably 1979). Rather, evidence of the specific highest and best use of condemned land States v. 320.0 Acres of Land, More or Less, Etc., 605 F.2d 762, 814 (5th Cir. predicated upon potential uses which are speculative and conjectural.” United development. In condemnation proceedings, “just compensation cannot be high est and b est use depends upon the approval of variances or permits for its analogous context of condemnation proceedings where the property’s asserted reviewing the sufficiency of the evidence on this issue, we consider cases in the develop a second dealership on the property. See Fitz, 136 N.H. at 726. In prove that it was reasonably certain he would obtain the necessary per mits to Thus, to establish the fact of lost profits, Boyle was initially required to

emphasis omitted). Clipper Affiliates v. Checovich, 138 N.H. 271, 274 (1994) (quotation and

nature of the tort and the circumst ances permit. representing adequate compensation with as much certainty as the p. 12 12

necessary to seek lost profits damages. need not reach this issue in light of our conclusion that Boyle failed to establish a prima fa cie case City’s claim that the trial court erred in denying its motion to set aside the jury award, but we three or four variances from the Portsmouth planning board. This evidence would support the evidence through the Portsmouth city planner that Boyle’ s development project would require directed verdict at the conclusion of Boyle’s case, we note that, in its case, the City presented Although not relevant to our analysis of the trial court’s ruling on the City’s motion for a partial 1

the court erred in refusing to set aside or remit the jury’s award. decision. Given our conclusion, we need not address the City’s argument that profits damages and remand for further proceedings consistent with this were reasonably certain to exist. Accordingly, we vacate the award of lost erroneously ruled that Boyle sustained his burden of proving that lost profits Based upon our review of the record, we conclude that the trial court

from a bond not within the plaintiff’s direct control). upon successfully allying potential investors and obtaining sufficient capital contract where the realization of the plaintiff’s new business still depended was insufficient evidence that lost profits arose from the defendant’s breach of of the fact of lost pr ofits. See Great Lakes, 135 N.H. at 29 7 (holding that there satisfying these additional criteria further undermines the reasonable certainty securing financing to build a second building. The speculative nature of second dealership on the property, including obtaining a dealer franchise and — unrelated to the trespass or nuisanc e — that needed to be met to develop a Furthermore, Boyle’s own testimony highlighted additional requirements

foundation in fact”). 1 of obtaining a permit; as with all opinion evidence, there must be some particular use is reasonably probable, or that there is a reasonable pr obability agencies, a party cannot make out a jury question “simply [by] asserting that a to local zoning restrictions or to the regulatory authority of other local or state Acres of Land, 605 F.2d at 819 n. p. 13 130 (explaining that, where a use is subject on probability that the City would grant the necessary permits. See 320.0 standard, the expert expressly testified that he was not giving an opinion based assum e that “more probable th an not” satisfies the “reasonable certainty” second dealership would be approved by the regulatory authorities, even if we needed only to establish whether it was “more probable than not” that Boyle’s a s econd dealership. Although the trial court determined that the expert certain” Boyle would obtain the necessary regulatory approvals required to add his property, his expert offered no assessment of whether it was “reasonably variances unrelated to the underlyin g trespass and nuisance to further develop certainty. As set forth above, despite acknowledging th at Boyle may need to present sufficient evidence to prove the fact of lost profits with reasonable Similarly, in the case before us, we agree with the City that Boyle failed 13

retired superior court justice s, specially assigned under RSA 490:3, concurred. HICKS and BASSETT, JJ., concurred; ABRAMSON and BROWN, J J.,

court to address in the first insta nce. was illegal, we remand the issue of damages after December 2016 for the trial taking was valid. In light of our affirmance of the ruling that the City’s taking litigation was premised on the trial court’s inco rrect assumption that the City’s Boyle asserts tha t the preclusion of damages after 2016 in the sewer line

January 24, 2020). City of Portsmouth v. 150 Greenleaf Avenue Realty Trust, ___ N.H. ___ (decided opinion, we affirm the trial court’s ruling on t he eminent domain matter. See support the taking. The City appealed that order and today, in a separate the court found that the City failed to allege a proper statutory authority to the eminent domain takin g following a bench trial in superior court, in which After filing this appeal, Boyle prevailed on his preliminary objection to

damages after December 2016. costs of further delay.” Accordingly, the trial court precluded evidence of that “the value of proceeding g iven the history of this case far outweighs the nonetheless determined that “it’s discreet in the overall scheme of things” and case.” Although it noted that the damages issue was “significant,” the court domain[,] that would only result . . . in an issue impact on the damages in this reasoning that if Boyle “is successful on his challenges to the eminent domain power. The trial court denied Boyle’s motion to postpone the jury trial, reasoning that the City’s trespass ended when the City exercised its eminent the taking. Over Boyle’s objection, the trial court granted the motion, The City moved to preclude at trial evidence of damages after the date of

to such determination.” take the property” and, thus, “trial will severely prejudice [him] if it occurs prior damages due to the uncertainty of the effectiveness of the City’s att empts to impossible as a matter of law to know the key date to instruct the jury on as the preliminary objection is determined and all appeals exhausted, it is objection in the eminent domain case.” Boy le asserted that “[u]ntil such time alternatively, “combine the trial with the evidentiary hearing on the preliminary RSA 498 - A:9 - a (2010), and moved to postpone the jury trial in this case or, 498 - A:5 (2010). Boyle opp osed the taking by filing a preliminary objection, see exercised its power to take the property at issue by eminent domain. See RSA preclude damages after December 2016. Shortly before the jury trial, the City Boyle argues that the trial court erred in granting the City’s motion to

3. Damages After 2016