George v. Al Hoyt & Sons, Inc.
162 N.H. 123
N.H.2011Background
- Homes by George developed Esther's Estates in Newton; Rick George worked on building the development; EML Builders financed with a mortgage on the property.
- On December 13, 2001, Hoyt & Sons contracted to perform road work including building a bridge for a total price of $79,278.31.
- In February 2002, Homes by George paid a $10,500 bridge deposit; wetlands permits required the bridge by July 2002.
- In June 2002 Hoyt refused to construct/install the bridge; plaintiffs contracted Concrete Systems to supply a bridge, which would take about three months to build.
- Delay in bridge installation led to cancellations of two home purchases; Esther's Estates was deeded to EML Builders via deed in lieu of foreclosure for $300,000 on August 22, 2002.
- Plaintiffs sued in May 2005 for breach of contract, CPA violations, and unlawful removal of loam; trial court split liability and damages across multiple trials culminating in a $56,680 damages award in October 2009 and remand on other damages issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CPA standing of Homes by George | Homes by George qualifies as a private plaintiff under CPA. | Homes by George is not a consumer; not entitled to private CPA action. | CPA private action available to business entities; standing affirmed. |
| CPA applicability to defendant's conduct | Defendant's deposit handling and to-bridge payment violated CPA rascality standard. | No unfair/deceptive acts; conduct not within CPA. | Court applied CPA; conduct met rascality test and violated RSA 358-A:2. |
| Damages for removal of loam | Loam removal damages were recoverable as trespass; no commercial frustration defense. | Defense of impossibility/commercial frustration should bar loam damages. | Loam damages upheld; commercial frustration inappl. |
| Bridge obligation under contract | Bridge was included in contract price; defendant liable for bridge costs. | No explicit bridge term; verdict finding unsupported by contract. | Evidence supported bridge obligation; first jury verdict not conclusive against weight of the evidence. |
| Damages award and remittitur | Court erred in vacating $500,000 and awarding $56,680; should include lost profits and bridge costs. | Court could remittitur; verdicts excessive or insufficient after weight-of-evidence review. | Remanded for determination of damages beyond lost profits; court’s $56,680 interpreted as CPA/loam damages and vacated the $500,000 breach damages award. |
Key Cases Cited
- State v. Sideris, 157 N.H. 258 (2008) (rascality test for CPA applicability)
- Barrows v. Boles, 141 N.H. 382 (1996) (standard for upholding trial court rulings of law and fact)
- Petrie-Clemons v. Butterfield, 122 N.H. 120 (1982) (foreseeability in contract damages; lost profits)
- State v. Parker, 155 N.H. 89 (2007) (interpretation of damages and awards in contract cases)
- Hair Excitement v. L'Oreal U.S.A., 158 N.H. 363 (2009) (court-as-finder of fact in RSA 358-A proceedings)
- Quinn Bros. v. Whitehouse, 144 N.H. 186 (1999) (set-aside of verdict for weight-of-evidence concerns)