Greenwald v. Keating

172 N.H. 292

212 A.3d 936

Evan GREENWALD & a.

v.Richard KEATING & a.

No. 2018-0479

Supreme Court of New Hampshire.

Argued: April 18, 2019

Opinion Issued: June 25, 2019

Hinckley, Allen & Snyder, LLP, of Manchester (Christopher H.M. Carter and Jamie S. Myers on the brief, and Mr. Carter orally), for the plaintiffs.

Steiner Law Office, PLLC, of Concord (R. James Steiner on the brief), and Haughey, Philpot & Laurent, PA, of Laconia (Samantha M. Jewett orally), for defendant Barbara Keating.

Haughey, Philpot & Laurent, PA, of Laconia (Samantha M. Jewett and William Philpot, Jr. on the brief, and Ms. Jewett orally), for defendants Barry and Chrysoula Uicker.

Shaheen & Gordon, P.A., of Concord (Karyn P. Forbes and Alexander W. Campbell on the brief), and Haughey, Philpot & Laurent, PA, of Laconia (Samantha M. Jewett orally), for defendant Ellen Mulligan.

Hage Hodes, P.A., of Manchester (Douglas J. Miller and Katherine E. Hedges on the brief), and Haughey, Philpot & Laurent, PA, of Laconia (Samantha M. Jewett orally), for defendant Jill Keating.

LYNN, C.J.

This case concerns an agreement for the lease of certain property in Gilford that included certain preemptive purchase rights (the Agreement). The plaintiffs, Evan and Kelly Greenwald, have asked us to determine the proper interpretation of the Agreement, whether it has been breached, and who may be held liable. On cross-motions for summary judgment, the Superior Court (Ignatius, J.) ruled in favor of the defendants, Barbara Keating, Jill Keating, Ellen Mulligan, and Barry and Chrysoula Uicker. We reverse and remand.

The following facts are drawn from the trial court's summary judgment order and from undisputed documentary evidence contained in the record. In 1996, Richard Keating¹ and his daughter, Jill Keating, purchased property on Mink Island in Gilford as joint tenants with the right of survivorship. In 1997, a portion of the property was subdivided and sold, with Richard and Jill retaining 2.1 acres on which Richard built a camp (the Mink Island property). Starting in 2013, Richard and his wife Barbara (the Keatings) began renting the Mink Island property during the summer months to help offset taxes. Barbara, however, owned no interest in the property. On June 1, 2015, Richard employed Roche Realty to list the Mink Island property for sale. The property was originally listed for $849,900, but the price was increased to $899,900 on June 15, 2015. Around the same time, the plaintiffs, who had previously owned a house on Mink Island, began searching for island property on Lake Winnipesaukee to rent during the summer of 2016 with an option to purchase. The plaintiffs were aware that the Keatings were offering the Mink Island property for rent, and Mr. Greenwald contacted Barbara to inquire about its status. Barbara informed the Greenwalds that the Mink Island property was available to rent for the summer of 2016 and was also listed for sale.

On August 9, 2015, the plaintiffs met the Keatings and their Roche Realty agent, John Goodhue, at the Mink Island property. During the meeting the Keatings agreed to: (1) lease the Mink Island property to the plaintiffs from July 1, 2016 through August 31, 2016, at a rate of $12,000 per month; (2) take the property off the market and provide the plaintiffs with preemptive rights to purchase the property should the Keatings decide to re-list it for sale; and (3) permit the plaintiffs to apply one month's rent toward the purchase price. That day, Goodhue drafted the Agreement reflecting those terms; it was signed by the plaintiffs, as the tenant, and the Keatings, as the landlord. Paragraph 18 of the Agreement, entitled "LEASE RENEWAL AND PURCHASE OPTION," states as follows:

A. If property remains for lease in the summer of 2017, tenants shall be given first option to renew lease for July 1-August 31, at the established 2016 lease rate.

B. In the event that Landlord intends to re-list property for sale, Landlord agrees to give tenant first option to purchase property prior to or after conclusion of the lease, and prior to property being listed on MLS. If a sale price is agreed upon during or after the term of this lease, landlord agrees to apply one month's rent, as specified in this lease, toward the purchase price of the property. It is agreed that any sale shall be managed by John Goodhue, realtor, as listing agent.

C. In the event that tenant does not exercise the first option to purchase property under 18B, and the property is listed for sale on MLS, but tenant maintains an interest in the future purchase of the property as presented in writing by the tenant to the landlord, landlord agrees to offer tenant legal right of first refusal to purchase the property. Tenant shall have 4 business days upon presentation of another signed purchase and sales agreement to respond in writing, either exercising or waiving their right to first refusal.

The Agreement contains an integration clause, stating that it constitutes the entire contract and that any prior understandings or representations preceding its signing are superseded by its terms. The Agreement further states that it can be modified only by a writing signed by the plaintiffs and the Keatings. Jill's ownership interest in the property was not disclosed to the plaintiffs.² Richard later informed Jill of the Agreement with the plaintiffs.

During the summer of 2015, the Uickers were also looking to purchase an island camp property on Lake Winnipesaukee. They hoped to sell their property on Cow Island in Tuftonboro and purchase property closer to their residence in Gilford. Prior to May 2016, the Uickers told Mulligan, who is Mr. Uicker's sister and a real estate broker, that they were looking to purchase property on Lake Winnipesaukee. Mulligan was aware that the Keatings might consider selling the Mink Island property, and shared this information with Mr. Uicker.

Around mid-May 2016, Mulligan spoke with Barbara about the Mink Island property. Mulligan explained that she was calling on behalf of her brother and wanted to set up a time for the Uickers to visit the property. Although Barbara told Mulligan that she and Richard were unsure about selling the Mink Island property, she agreed to the visit, which occurred on or about May 16, 2016. During their visit, Richard mentioned to Mr. Uicker the purchase rights of the plaintiffs contained in the Agreement. In a June 1, 2016 e-mail to the Keatings, Mr. Uicker requested a copy of the Agreement so that he could discuss it with a title company and formulate a procedure to avoid legal trouble. The e-mail also thanked the Keatings for working with the Uickers and working out a deal to purchase the Mink Island property.

On July 1, 2016, the plaintiffs arrived at the Mink Island property to begin their lease term. At this time, the Keatings informed the plaintiffs that they did not intend to sell the property because they wanted to keep it in the family. In a text to Barbara on July 19, 2016, the plaintiffs again expressed their interest in purchasing the property, asking if the Keatings would be interested in selling the back half of the property to reduce the tax burden on the children. Barbara, however, declined the offer.

In September 2016, the Uickers offered $750,000 to purchase the Mink Island property, which the Keatings and Jill accepted. While Mr. Uicker believed that paragraph 18B had not been triggered because the Keatings had not listed the Mink Island property for sale, he informed Mulligan of the purchase and expressed concern over the Agreement. A local real estate attorney was employed to review the Agreement; he explained that the right of first refusal was ambiguous but likely required that the Keatings list the Mink Island property for sale before the plaintiffs had any rights. During a meeting on September 6, 2016, the attorney discussed with the Keatings the possibility of providing the plaintiffs with a copy of a signed purchase and sale agreement for the Mink Island property from the Uickers and giving them four days' notice to match its terms. However, Richard emphatically declared that he would not sell the Mink Island property to the plaintiffs. When discussion arose about the possibility of a lawsuit, Richard explained that he was not concerned and said "let him sue me."

On September 9, 2016, the Uickers entered into a purchase and sale agreement with Richard and Jill. Jill also executed a power of attorney for Richard to act on her behalf regarding the Mink Island property. The power of attorney was notarized by Mulligan. The parties closed on the Mink Island property on September 14 or 15.

When the plaintiffs learned of the sale of the Mink Island property to the Uickers, they filed suit: (1) requesting specific performance against the Uickers to recover the property; (2) seeking damages for breach of contract and breach of the implied covenant of good faith and fair dealing against Barbara, Richard, and Jill;³ and (3) seeking damages against Mulligan for tortious interference with contractual relations and violation of the Consumer Protection Act. On cross-motions for summary judgment,⁴ the court ruled in favor of the defendants. This appeal followed.

When reviewing a trial court's ruling on cross-motions for summary judgment, we "consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law." Conant v. O'Meara, 167 N.H. 644, 648, 117 A.3d 692 (2015) (quotation omitted). "If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment." Id. (quotation omitted). "We review the trial court's application of the law to the facts de novo." Id. (quotation omitted).

Central to the trial court's decision was the interpretation...