Gail C. Tremblay v. Allan Bald et al.

Donald Bald (“Don”) died intestate on July 26, 2020. A1. 73. At the time of his death, the Plaintiff (“Gail”) and Don had lived together for the past 10 years. A. 72, 73. Gail and Don first met in the summer of 2009 after Gail moved into Don’s neighborhood, purchasing the home at 19 Spruce Street following her divorce. A. 74. Don lived at 16 Spruce Street which he had purchased in 2007. A. 74.

After their first date in September 2009, the relationship between Gail and Don progressed quickly, seeing each other every day and by November 2009, Gail moved into Don’s home at 16 Spruce Street. A. 74. The following month, in or about December 2009, Don purchased Gail’s home at 19 Spruce Street in order to pay off the existing mortgage as he did not want her to have any debt. A. 75. Don also paid off Gail’s smaller debts, including a loan on a snow machine and some credit card debt. A. 75.

At the time of Don’s purchase of 19 Spruce Street, Gail and Don on December 29, 2009, signed an agreement providing for reimbursement of monies to Don upon a subsequent sale of the property, and should Don die before the home was sold, for the transfer to Gail of Don’s home at 16 Spruce Street along with its contents, not to include Don’s gun collection.

Don and Mr. Bunnell that came up with the wording. A. 75. The document reflects that $97, 000 was to be repaid to Don in the event of the sale of 19 Spruce Street while he was still alive, which amount was to reimburse him for the earlier mortgage and debts that Don paid off when purchasing the property from Gail, plus closing costs. A. 75, 81. Gail had purchased 19 Spruce Street for $95, 000, with a first mortgage of approximately $93, 000.

Gail understood that the provisions of the agreement to take effect upon Don’s death was because Don wanted to provide her with a home in light of their committed relationship. A. 76. At the time the document was signed, Gail and Don intended to put the 19 Spruce Street property on the market to be sold, and actually did list it for sale for a period of time. The property was then renovated and became a rental property from 2010 through 2020. A. 76, 79.

Gail understood the condition “we are living together” to mean that the parties were both living in the same household at the time of Don’s death. A. 76. Gail agreed that there was no change in the relationship between her and Don as a result of signing the December 2009 document, but rather it gave her a sense of security that Don would provide for her. A. 76. Gail further admitted that notwithstanding signing the December 2009 agreement, she and Don could have ended their relationship at any time. A. 76. Gail further believed, although it was not discussed, that if the relationship had ended Don would still have shared with her the profit on the sale of 19 Spruce Street in an effort to be fair. A. 76. In January 2021, Gail and Don signed a second agreement after they decided not to sell the property at 19 Spruce Street. A. 77. Gail was the one who typed up the document, which was then signed at the office of her tax preparer, Helen Beausejour, and neither she nor Don sought legal advice prior to signing. A. 77. The January 2021 agreement by its express terms replaced the December 2009 agreed. A. 77, 82. Gail understood the meaning of “living together” in the January 2021 agreement to be the same as in the December 2009 agreement. A. 77. The January 2021 agreement provided that Gail could choose one of the two properties, 16 or 19 Spruce Street, and choose two vehicles which she understood was to be from “the collection of vehicles that we had.” A. 77. All of the vehicles, except for the Jeep that Gail owned prior to meeting Don, were purchased by Don and owned before he met Gail. A. 77, 82.

Gail described her relationship with Don as “domestic partners”, akin to a typical husband and wife relationship, a “normal couple” and “old fashioned”, where Gail was primarily the homemaker and worked part- time, and Don was the provider and head of household. A. 77-8. Gail and Don had discussed marriage early in their relationship, but did not get married because of Gail’s legal obligations to her minor children stemming from her prior divorce. A. 78.

In March 2015, Gail and Don signed two additional agreements, both again self-prepared by Gail and signed before Gail’s tax preparaer, Helen Beausejour, with neither party having sought legal advice before signing. A. 78, 83, 84. The first of the March 2015 agreements provides that Gail would receive a 2014 Ford Mustang, a vehicle that was purchased by Don outright with his own cash, without contribution from Gail. A. 78. The second of the March 2015 agreements provides that Gail would receive the real property at 1 Marois Ave., a home that Don owned and had purchased outright with his own cash without contribution from Gail. A. 79. The phrase in both documents “as long as we are still living together as an engaged couple” was understood by Gail to have the same meaning as “living together” used in the earlier agreements, i.e., if they had not broken up. A. 78. The second of the March 2015 agreements, and the fourth agreement in all, contained the additional phrase “there is no will at this time”, which Gail understood to reflect that neither she nor Don had gotten to the point of doing any formal estate planning for each other. A. 79. At the time of Don’s death, Gail did not have a will in place that provide assets to Don in the event she predeceased him. A. 79.

In February 2020, 5 months prior to Don’s death, the property at 16 Spruce Street where Gail and Don had lived together was sold for $180, 000.00. A. 79. Gail and Don then moved into 19 Spruce Street. A. 79. Upon Don’s death, the net proceeds of the sale of 16 Spruce Street were received by Gail. A. 79.

Following Don’s death, Gail initially asserted contract and related claims against Don’s estate (“Estate”) in the Probate Division. A. 70. After the Probate Division questioned whether it had jurisdiction, Gail by agreement re-filed her claims against the Estate in the Superior Court. A. 71. Specifically, Gail claims ownership of a 2014 Ford Mustang Coupe, a 2017 Ford 150, a 2019 Subaru Forester, and the real property located at 19 Spruce Street, Gorham, NH, and 1 Marois Avenue, Gorham, NH as well as the contents within. A. 70. Gail’s complaint asserts that the documents signed by her and Don are enforceable contracts, or in the alternative that she is entitled to said property under the theories of promissory estoppel or an implied contract. A. 16-18. A further count for “Jointly Purchased Property” is asserted as against the 2019 Subaru Forester which Gail asserted was purchased by her and Don. A. 19.

After discovery and on cross-motions for summary judgment, the Superior Court granted summary judgment in favor of the Estate, agreeing that the agreements at issue were not enforceable due to a lack of consideration. A. 152. It was uncontested that Gail was not induced into living, or continuing to live, with Don because they were already living together at the time they signed the agreements. A. 151. Additionally, none of the four agreements make any reference to an alleged bargained-for exchange nor assert that cohabitation or living together is the consideration – indeed no consideration is recited at all. A. 152. The Superior Court further denied Gail’s alternate equitable claims of promissory estoppel, implied contract and “jointly-purchased” property on the basis that Gail failed to demonstrate any detrimental reliance on promises by Don, that any claim of an implied-in-fact contract also failed for lack of consideration, and that any claim of an implied-in-law contract failed because there was no evidence that Don engaged in wrongful acts or passively accepted a benefit unconscionable to retain. A. 154. Lastly, the Superior Court denied Gail’s “jointly purchased” property claim on the basis that the 2019 Subaru was titled solely in Don’s name at the time of this death and Gail submitted no evidence that she had any interest in the vehicle. This appeal followed.

This Court should affirm the decision of the Superior Court which granted summary judgment in favor of the Estate because the alleged agreements between Gail and the decedent, Don, are not enforceable contracts due to a lack of consideration. Based upon Gail’s deposition testimony and the undisputed material facts in the record, as set forth in the parties’ consolidated statement of facts on the motions for summary judgment, it was undisputed that: 1) Gail and Don lived together as an unmarried couple and enjoyed a committed, traditional relationship with each other where Gail performed traditional housekeeping and related duties, 2) that the nature of their relationship existed prior to signing the agreements in dispute and that nothing in their relationship changed nor was expected to change upon signing the agreements, and 3) that either Gail or Don could have chosen at any time to end their relationship and stop living together. These undisputed facts, along with the fact that the agreements expressly fail to recite any consideration at all, make clear that there was no bargained-for exchange of consideration between the parties and that Don’s gratuitous promises are unenforceable. Moreover, New Hampshire law does not recognize and has rejected recognition of a contract which is implied from the rendition and acceptance of “housewifely services.”

Additionally, the Superior Court properly denied Gail’s alternative equitable claims of promissory estoppel, implied contract and “jointly purchased property.” Promissory estoppel requires a showing of detrimental reliance and Gail offered no evidence to support such a claim. Indeed, the evidence demonstrated nothing changed in the parties’ relationship after signing the agreements. Gail’s implied-in-fact contract claim fails for a lack of consideration, as even an implied contract must contain all essential elements of contract formation. Gail’s implied-in-law contract claim is not a contract claim, but rather an equitable remedy to avoid unjust enrichment requiring a showing of wrongful conduct on the part of Don of which there was no evidence. Lastly, in opposing the motion for summary judgment, Gail offered no evidence to substantiate her claim of an interest in the 2019 Subaru titled solely in Don’s name at the time of his death. The Estate seeks to have this Court affirm the Superior Court’s order on the motions for summary judgment in all respects.

When reviewing a trial court's grant of summary judgment, this Court considers the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. See, Peerless Ins. v. Vt. Mut. Ins. Co., 151 N.H. 71, 72, 849 A.2d 100 (2004). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. Id. The trial court's application of the law to the facts is reviewed de novo. Id. a. New Hampshire law requires that enforceable agreements between unmarried couples must meet all the essential elements of a contract.

The trial court correctly held that agreements such as the ones here are not enforceable where they fail to contain all the essential elements of an enforceable contract. See Order at 5 (citing to 3 NHPS Family Law §4.04 (2021)). As to unmarried couples, New Hampshire law “will enforce an action in contract to the extent that it is not founded upon the consideration of meretricious sexual relations.” Id. (citing Joan S. v. John S., 121 N.H. 96, 99 (1981)). “New Hampshire law follows the presumption that services of cohabitants rendered to one another are gifts.” 3 NHPS Family Law §4.11 (2021). A party seeking enforcement of an agreement must show: an offer; an acceptance of the offer; adequate consideration; and a meeting of the minds as to the essential elements of the contract.” See Appeal of Sanborn Regional Sch. Bd., 133 N.H. 513, 518 (1990). b. The agreements between Gail and Don lack consideration because there was no bargained-for exchange.

“Good consideration is essential to the validity of all contracts.” Lang v. Johnson, 24 N.H. 302, 307 (1851). Good consideration “is the foundation upon which all legal agreements and undertakings rest.” Id. “Without good consideration a contract is a mere nudum pactum, not binding in law, however it may be in conscience, and cannot be enforced.” Id. “Consideration is the obligation imposed on one party in exchange for a promise to do or refrain from doing something.” Id. Thus, “[a] promise made to another, without consideration, is not a contract and will not be enforced.” Id.

The consideration must also flow in both directions to be enforceable. Id. “Consideration is present if there is either a benefit to the promisor or a detriment to the promisee.” Chisholm v. Ultima Nashua Indus. Corp., 150 N.H. 141, 145 (2003). “The concept of consideration is comprised of two elements: first, a legal detriment to the promisee (with a corresponding legal benefit to the promisor), and, second, a bargained-for exchange.” Appeal of Lorden, 134 N.H. 594, 599-600 (1991) (citing J. Calamari & J. Perillo, Contracts, § 4-2, at 189 (1987)). Here, the agreements recite that Gail is to receive and/or choose from certain property if she and Don were still living together at the time of his death. Gail attempts to construe the agreements to provide that she is entitled to receive the subject property if she continued to live with Don. A.

43. In other words, Gail asserted that she was enticed, induced or obligated to live with or continue living with Don in exchange for the later receipt of property upon Don’s death. However, at the time the first of the agreements was signed in December 2009, the parties were already living together and nothing regarding their relationship changed in exchange for the promises made by Don.

Likewise, the parties remained and were living together at the time the subsequent agreements were signed. On the face of the agreements and based upon Gail’s own testimony, there was no bargained-for exchange whereby Gail agreed to move in with Mr. Bald or continue living with him, or do anything else, in exchange for the property she now seeks. In other words, there was no legal detriment to Gail, the promisee, by continuing to live in the same household as Don.

There was also no legal benefit to Don, the promisor, and his performance was entirely optional since he was free at any time to end the relationship – and so was Gail. “Words of promise which by their terms make performance entirely optional with the ‘promisor’ do not constitute a promise.” See Restatement (Second) of Contracts, § 77 comment (a) at 195 (1981).

Gail argued that Don received the benefit of her continuing to live with him “as he requested in each offer” made. A. 43. Yet there is no such request or offer recited in any of the four agreements. Again, the parties were already living together at the time the agreements were signed. Gail’s argument that she provided a benefit to Don by contributing toward joint assets, performing housekeeping tasks, ensuring that Don lived a healthy lifestyle, or took him to medical appoints, are all things that occur in what Gail herself described as a normal, traditional “old fashioned” type of relationship. None of the agreements recite that Gail was to perform any of these or other related tasks in exchange for receipt of the property. Gail did not perform these tasks because she was obligated to do so by a contract, she did them because she was in a committed relationship with Don. Moreover, New Hampshire law is clear, as further discussed below, that none of these types of domestic tasks performed by Gail are legally sufficient to support an implied contract or other equitable theory of recover. See Tapley v. Tapley, 122 N.H. 727 (1982); see also Williams v. Ormsby, 131 Ohio St. 3d 427 (2012) (holding that resuming a romantic relationship by moving into a home with another person is not adequate consideration).

The Agreements also do not expressly recite any consideration. The phrase “for valuable consideration” is not even used, let alone a recitation of any actual consideration being given. Gail’s argument that “living together” should be interpreted to mean that she was to provide companionship (fulfilling financial, emotional, physical, and social needs, etc.), and even assuming she did so, such conduct still fails to demonstrate sufficient consideration because it does not involve doing or not doing anything different from what she was already doing as a couple in a committed relationship. There must be a bargained-for exchange, or quid pro quo, to constitute valid legal consideration. See Chasan v. Village Dist. of Eastman, 128 N.H. 807, 816 (1986).

Gail’s alternative theory of recovery under the doctrine of promissory estoppel was correctly rejected by the Superior Court because she cannot demonstrate the essential element of “detrimental reliance.” See Great Lakes Aircraft Co., Inc. v. City of Claremont, 135 N.H. 270, 290 (1992). In her complaint, Gail claims that she contributed to the upkeep, improvement and procurement of the properties and vehicles, that she remained in the home and loyally contributed to the accumulation of assets and wealth, foregoing securing her own separate and individual assets. A. 16-18. However, none of these actions even if true were done in exchange for the expectation of receiving property from Don, but rather because the parties were living together in a committed relationship. Moreover, Gail admitted she did not contribute any money toward the acquisition of either 19 Spruce Street (Don purchased the home from her) nor 16 Spruce Street (Don purchased his home before meeting Gail), nor any of the vehicles being claimed under the agreements (except for the 2019 Subaru discussed below). Thus whatever money was available to Gail to save in her own name was not instead contributed toward the assets titled in the name of Don. Notwithstanding, Gail was a joint owner on bank accounts with Don, including the account that contained the proceeds of the sale of 16 Spruce Street shortly before Don’s death and which cash became Gail’s property.

Initially, New Hampshire law does not recognize common law marriage and “has not recognized the performance of domestic and other nonmonetary housekeeping contributions including preparation of meals, laundry, cleaning, keeping financial books, paying of bills, shopping, and caring for children of the partner” to support equitable relief. See 3 NHPS Family Law §4.11 (2021). In Tapley v. Tapley, 122 N.H. 727 (1982), this Court declined to allow recovery for “domestic services” under an implied contract or in quantum meruit, agreeing with other jurisdictions which declined to recognize a contract implied from the rendition of “housewifely services.” See Brooks v. Allen, 168 N.H. 707, 713 (2016) (citing Tapley v. Tapley, 122 N.H., at 729). This Court in Tapley cited with approval the rationale of the Court of Appeals of New York, which stated: The major difficulty with implying a contract from the rendition of services for one another by persons living together is that it is not reasonable to infer an agreement to pay for the services rendered when the relationship of the parties makes it natural that the services were rendered gratuitously.... As a matter of human experience personal services will frequently be rendered by two people living together because they value each other's company or because they find it a convenient or rewarding thing to do.... For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error. Absent an express agreement, there is no frame of reference against which to compare the testimony presented and the character of the evidence that can be presented becomes more evanescent. There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid.

See Tapley v. Tapley, 122 N.H., at 730 (citing Morone v. Morone, 50 N.Y.2d 481, 488, 413 N.E.2d 1154, 1157 (1980)). New Hampshire law does allow a party in a non-marital living situation to bring a claim in equity or petition for declaratory judgment, and “will enforce an action in contract, if one can be shown to exist”, provided it is not founded upon the consideration of meretricious sexual relations. See Brooks v. Allen, 168 N.H. 707, 713 (2016) (explaining Joan S. v. John S., 121 N.H. 96 (1981)) (emphasis added). a. The lack of consideration defeats any claim of an implied-in-fact contract.

The Superior Court correctly rejected Gail’s implied contract arguments. An implied-in-fact contract is a true contract that is not expressed in words; the terms of the parties' agreement must be inferred from their conduct. See Chase Home for Child. v. N.H. Div. for Child., Youth & Fam., 162 N.H. 270, 728 (2011) (citing Morgenroth & Assocs. v. Tilton, 121 N.H. 511, 514-515 (1981)). “Like all contracts, implied-in-fact contracts cannot be formed absent an offer, acceptance, consideration and a meeting of the minds.” Id.

Whether an implied-in-fact contract exists is a factual question which this Court will sustain unless it is lacking in evidentiary support or tainted by an error of law. Chase Home for Child. V. N.H. Div. for Child., Youth & Fam., 162 N.H., at 728-29. For the same reasons set forth above, the evidence demonstrates that there was no valid consideration exchanged between the parties. b. There was no evidence of wrongful conduct on the part of Donald Bald and thus no support for any equitable remedy under an implied-in-law contract theory.

Gail’s complaint also requested that the Estate make restitution as a remedy for unjust enrichment. This remedy is permitted under a contract “implied-in-law”, not “implied-in-fact.” An implied-in-law contract is not a contract but is a legal remedy imposed by a court "without reference to the assent of the obligor, [arising] from the receipt of a benefit the retention of which is unjust, and requiring the obligor to make restitution." See Morgenroth & Assocs. v.Tilton, 121 N.H. 511, 514-515 (1981) (citing Presby v. Bethlehem Village District, 120 N.H. 493, 495, 416 A.2d 1382, 1383 (1980) (quoting State v. Haley, 94 N.H. 69, 72, 46 A.2d 533, 535 (1946))). Technically, only implied-in-fact contracts may be called "implied contracts"; implied-in-law contracts are more accurately called "quasi-contracts." Id.

“The doctrine of unjust enrichment is that one shall not be allowed to profit or enrich himself at the expense of another contrary to equity.” American University v. Forbes, 88 N.H. 17, 19 (1936). All claims seeking unjust enrichment rest, at bottom, on a plaintiff’s ability to show that it conferred a benefit on the defendant. See Presby v. Bethlehem Village District, 120 N.H. 493, 495 (1980). “A plaintiff is entitled to restitution if he shows that there was unjust enrichment either through wrongful acts or passive acceptance of [that] benefit that would be unconscionable to permit the defendant to retain.” R. Zoppo Co., Inc. v. City of Manchester, 122 N.H, 1109, 1113 (1982) (citation omitted). “There must be some specific legal principle or situation which equity has established or recognized, to bring a case within the scope of the doctrine.” Cohen v. Frank Developers, Inc., 118 N.H. 512, 518 (1978) (citation omitted).

Here, Gail has not alleged any wrongful act on the part of Don, or that he passively accepted a benefit that is unconscionable to retain. As the Superior Court correctly held, the undisputed facts demonstrated that Gail and Don had a mutually beneficial, traditional, committed relationship. Gail’s claim that this issue was not ripe for determination on a motion for summary judgment should be rejected. A party opposing summary judgment may not rest upon general denials or conclusory allegations, but must set forth specific facts showing that a genuine issue remains for trial. Omiya v. Castor, 130 N.H. 234, 237 (1987); ERA Pat Demarais Assocs., Inc. v. Alexander Eastman Found., 129 N.H. 89, 92 (1986). In addition, a party opposing summary judgment must present contradictory evidence under oath sufficient to indicate that a genuine issue of material fact exists. Phillips v. Verax Corp., 138 N.H. 240, 243 (1994); see also RSA 491:8-a. Gail failed to substantiate her allegations with evidence despite ample opportunity to do so.

Gail’s final claim in her complaint alleges that the 2019 Subaru was purchased from funds held in a joint account, and thus joint ownership of the vehicle should be presumed notwithstanding that title was held solely in Don’s name. No legal authority for this claim was recited and no evidence to substantiate the claim was ever offered. Moreover, Gail in her complaint states that both parties contributed to the joint account, and that upon death the funds in the account became her sole property. A. 19. Thus she retained property contributed by Don. There is no allegation and no evidence or written document to support any agreement existed between Gail and Don to provide her with this specific vehicle on the basis that she allegedly contributed funds toward its purchase through a joint account. Additionally, the agreement signed in January 2012, states that Gail could have her choice of “two vehicles.” However, not only is the agreement not an enforceable contract, the 2019 Subaru had yet to be purchased. For whatever reason, assuming it was a joint decision, Gail and Don agreed that he would purchase the 2019 Subaru and take title in his own name and no valid cause of action is set forth that would award any interest therein to Gail.

For the reasons set forth above, the Appellee, Alan Bald as Administrator of the Estate of Donald Bald, respectfully request that this Court affirm the decision of Superior Court granting summary judgment in favor of the Estate.

The Appellee requests fifteen minutes for oral argument to be argued by William F. Gramer, Esquire.