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The Willowdale Place Cooperative, Inc. v. Varney

Supreme Court of New Hampshire

August 9, 2011

The Willowdale Place Cooperative, Inc.
Joyce Towle Varney


The plaintiff, Willowdale Place Cooperative, Inc., appeals the superior court's ruling that the defendant, Joyce Towle Varney, was not required to send a second notice pursuant to RSA 205-A:21 (2011), that she was selling her mobile home park. It argues that the defendant was required to send a second notice to the park's tenants because: (1) after she sent the first notice but prior to closing, the sale price was modified; and (2) a provision in the agreement was "effectively eliminated by the subsequent purchaser [of the park] as both [the defendant and purchaser] chose to ignore" the provision. It also argues that the trial court erred by denying its request to admit a transcript from a related trial in which the defendant was not a party. We affirm.

Before making a final unconditional acceptance of an offer to purchase a manufactured housing park, the owner of the park must give sixty days' notice to the park's tenants so the tenants have the opportunity to make an offer on the park themselves. RSA 205-A:21. More than one notification may be required if the purchase and sale agreement is modified after the first notice is sent out. Whispering Springs Tenant Ass'n v. Barrett, 137 N.H. 203, 206 (1993). "Modifications of price, terms and conditions proposed for park sale agreements that reasonably may affect the tenants' exercise of these rights must be noticed prior to acceptance." Id.

"We will uphold the trial court's findings and rulings unless they lack evidential support or are legally erroneous." Cook v. Sullivan, 149 N.H. 774, 780 (2003). "[W]e defer to the trial court's judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence." Id. "We review a trial court's rulings on the admissibility of evidence under an unsustainable exercise of discretion standard, and reverse only if the rulings are clearly untenable or unreasonable to the prejudice of a party's case." Carignan v. N.H. Int'l Speedway, 151 N.H. 409, 416 (2004).

The record reflects the following facts. Residents of Towle's Trailer Park formed the Willowdale Place Cooperative in 2004. The defendant owned the park along with adjoining acreage. In 2005, she entered into an agreement to sell the property, "comprising 147 acres, more or less, " to Austin Smith and David Broom (buyers) for $1, 000, 000. Two particular provisions of the agreement are at the heart of this appeal. One provision entitled the buyers to terminate the agreement for failure of the defendant, upon notice, to cure any defects in title, and obligated the defendant, to the extent the defects could "be cured by the payment of money, . . . to expend up to Twenty Thousand Dollars ($20, 000) of [her] funds" for this purpose (title provision). The title provision also entitled the buyers to cure any such defects, and to a credit against the purchase price for "any amount so expended." A second provision obligated the buyers to develop part of the land so that the trailer park could be relocated (relocation provision).

After the buyers made the offer to purchase the property, the defendant complied with RSA 205-A:21 by sending each tenant a notice and the purchase and sale agreement. The plaintiff then made its own offer to the defendant, but was unable to secure financing.

On the day prior to when the closing was to occur, the buyers notified the defendant that, according to their survey, the land to which the defendant had title was only 131 acres, not 147, and they invoked the title provision. The defendant testified that the discrepancy was due to her father's prior sale of a "wood lot, " that the town "had like five tax bills for that one deed, " and that "somehow, the wood lot did not get subtracted from the amount that was on this one tax deed." To resolve the issue, the defendant and the buyers adjusted the price by $10, 000, or one percent of the total sale price, to $990, 000. According to the defendant, "[t]hey determined that it was the back wood lot, it was basically on its own, it was landlocked, . . . [and] it was pretty much worthless." After the sale, the buyers did not relocate the trailer park, and the defendant did not enforce the relocation provision requiring them to do so.

At trial, the plaintiff did not call either of the buyers to testify. It sought, however, to introduce their testimony from a prior suit the plaintiff had brought against the buyers, but not the defendant. According to the plaintiff, one of the buyers, Mr. Smith, had testified that the buyers and the defendant agreed at closing not to honor the relocation provision, and that the relocation provision "was indeed removed at the closing." In response to the defendant's objection that the plaintiff had not established the unavailability of the witnesses so as to allow the transcript under the "prior testimony" exception to the hearsay rule, see N.H. R. Ev. 804(b)(1), the plaintiff argued that the testimony was admissible either under the "public records" or "catch-all" exceptions, see N.H. R. Ev. 803(8) & (24), neither of which require that the declarant be unavailable. The trial court sustained the hearsay objection.

In its final order, the trial court ruled that the evidence did not establish that "the relocation provision was removed at the closing, " relying upon the testimony of both of the attorneys who had attended the closing, and the defendant's testimony that she first heard that the buyers would not enforce the provision after the closing had occurred. As to the reduction in the purchase price, the trial court found that the price was adjusted pursuant to the title provision, and that the tenants of the park had received notice of that provision. In its motion for reconsideration, the plaintiff argued that the trial court's ruling that the relocation provision had not been removed was inconsistent with the order in the prior matter against the buyers, and that the transcript from that trial would have established an agreement to remove the relocation provision. The plaintiff further argued that the title provision only allowed for the expenditure of funds, and that there had been no expenditure of funds to cure a title defect. The trial court denied the motion, and this appeal followed.

We first address the plaintiff's argument that the reduction of the sale price by $10, 000 amounted to a material modification of the agreement entitling the plaintiff to notice under RSA 205-A:21. The plaintiff contends that the evidence does not support the trial court's ruling that the price adjustment fell within the title provision because the inaccurate description of the acreage in the purchase and sale agreement was not a defect in title, and because the title provision did not allow for a reduction in the purchase price. We note that in its motion for reconsideration, the plaintiff raised only the latter contention. Even assuming that both of these arguments are preserved, but see N.H. Dep't of Corrections v. Butland, 147 N.H. 676, 679 (2002) (party generally obligated to raise unanticipated errors in a motion for reconsideration), the evidence supports the trial court's ruling.

At trial, the attorneys who attended the closing testified that the title was defective. The buyers' attorney testified: "Certainly it's a title defect if you agree to convey . . . a larger piece of property than you actually have title to. It's not a title defect that would necessarily crop up during the examination of the records of the Registry, but it's still a title defect." The attorney who represented the defendant likewise testified that "[i]f you don't own the acres, you can't convey them. I would say that's a title defect." Moreover, the defendant described the acreage discrepancy as arising from a prior sale of a portion of the property, and the buyers, in raising the issue, invoked the title provision.

Finally, the title provision itself contemplated the expenditure of funds by either the defendant or the buyers to cure any title defects, and a credit to the buyers for any funds so expended. While the settlement statement may not have reflected any credits to cure a title defect, the defendant's closing attorney testified that satisfaction of the title provision "could be an adjustment to the price, " and that the price adjustment here in fact cured the title problem. The plaintiff presented no evidence to the contrary. Upon this record, we cannot say the trial court's ruling that the price adjustment did not require a new notice under RSA 205-A:21 was either unsupported by the evidence or legally erroneous. See Cook, 149 N.H. at 780.

We next address the plaintiff's argument that the trial court erred by finding that the relocation provision had not been removed from the contract. The plaintiff contends that while the trial court's finding that the relocation provision had not been "removed from the paper contract was technically correct, " the trial court erred by "narrow[ing] its focus to the four corners of the contract rather than the actual intention of the parties." The record belies the plaintiff's argument.

In its order, the trial court credited the defendant, who testified that she "never agreed to take away the relocation paragraph, " and that she first learned that the buyers were not going to comply with the relocation provision after the closing. The trial court also credited the defendant's attorney, who testified that there was never any "discussion [at the closing] about waiving or eliminating the [relocation provision] from [the] purchase and sale agreement, " and the buyers' attorney, who likewise ...

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