164 A.3d 990
N.H.2017Background
- In July 2010 the Devenports agreed to consider selling Runnymede Farm; Simmons and Gould formed Fat Bullies Farm, LLC to pursue purchase and presented an option agreement for $800,000 (90‑day option, $1,000 consideration).
- Simmons met the Devenports at the property, introduced Gould as an attorney, presented a draft agreement (initially $700,000), and discussed intentions to run the farm as a horse facility; the Devenports insisted on sale only if farm use would continue.
- Communications broke down: the Devenports later rescinded their willingness to sell and sold to the Perkinses in April 2011; Fat Bullies attempted to enforce the option and sued; Simmons made threatening statements to Bret Devenport.
- Litigation consolidated multiple suits: Fat Bullies sued Devenports and Perkinses (breach of option, tortious interference, equitable relief); Devenports and Perkinses counterclaimed (fraudulent inducement, CPA claim); jury found no enforceable contract and returned mixed verdicts (including advisory verdict against Fat Bullies and Simmons on CPA claim).
- Trial court adopted advisory verdict, awarded double attorney’s fees to Devenports under the CPA, awarded attorney’s fees and costs to the Perkinses as sanctions for bad‑faith litigation, and held Simmons and Gould personally liable for Perkinses’ fees; those fee and CPA rulings are central to the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fat Bullies and Simmons violated the NH Consumer Protection Act (CPA) | Their conduct did not constitute an “unfair or deceptive” act or course of conduct under RSA 358‑A:2 | Devenports: conduct (misrepresentations, threats, litigation strategy) was unscrupulous and violated CPA | Reversed: misrepresenting future use of real property and associated conduct did not meet the rascality test as a matter of law; CPA award vacated |
| Whether summary judgment for Perkinses on tortious interference was erroneous | Fat Bullies: court improperly resolved credibility and factual disputes at summary judgment | Perkinses: no evidence they intentionally and improperly interfered with an enforceable option | Affirmed (but on different basis): any error harmless because jury found no enforceable contract, an essential element for interference claim |
| Whether Perkinses were entitled to attorney’s fees/costs as sanctions for bad‑faith litigation | Fat Bullies: fees award was improper; claims were at most reasonable mistakes | Perkinses: Fat Bullies brought claims as part of bad‑faith course of conduct warranting fees | Reversed: trial court abused discretion; record does not support finding of bad faith or patently unreasonable claims |
| Whether Simmons and Gould are personally liable for Perkinses’ fees; and related evidentiary rulings (quash subpoena, limit cross) | Fat Bullies/Simmons/Gould: personal liability and discovery rulings were erroneous | Perkinses: personal liability appropriate given conduct; discovery rulings proper | Not reached substantively: because fee awards reversed, personal liability and related fee‑reasonableness and evidentiary arguments were moot; summary judgment evidentiary challenges harmless in light of no contract finding |
Key Cases Cited
- Beer v. Bennett, 160 N.H. 166 (2010) (standard of review for findings of fact and law)
- George v. Al Hoyt & Sons, Inc., 162 N.H. 123 (2011) (rascality test applied; ordinary breach of contract not CPA violation)
- State v. Moran, 151 N.H. 450 (2004) (CPA interpretation; FTC factors for unfair/deceptive practices)
- Snierson v. Scruton, 145 N.H. 73 (2000) (acts incidental to real estate sales can be trade or commerce under CPA)
- Milford Lumber Co. v. RCB Realty, 147 N.H. 15 (2001) (course of deceptive acts can violate CPA)
- Barrows v. Boles, 141 N.H. 382 (1996) (commercial bargaining conduct insufficient alone to establish CPA violation)
- Becksted v. Nadeau, 155 N.H. 615 (2007) (misrepresentations used to avoid contractual obligations can satisfy rascality test)
- Tagliente v. Himmer, 949 F.2d 1 (1st Cir. 1991) (seller’s misrepresentations about market interest do not meet rascality test)