Cohen v. Frank Developers, Inc.

• Decision Date: 18 July 1978
• Docket Number: No. 78-012,78-012
• Parties: Julian COHEN v. FRANK DEVELOPERS, INC., et al.
• Court: New Hampshire Supreme Court

Page 933

389 A.2d 933

118 N.H. 512

Julian COHEN v. FRANK DEVELOPERS, INC., et al.

No. 78-012.

Supreme Court of New Hampshire.

July 18, 1978.

Snierson & Chandler, Laconia (Bernard I. Snierson, Laconia, orally), for plaintiff.

Perkins, Holland, Donovan & Beckett P. A., Exeter (William H. M. Beckett, Exeter, orally), for defendants.

BOIS, Justice.

This is an action for damages for breach of an oral contract and, in the alternative, for restitution. After a trial by the Court, Cann, J., rendered judgment for the plaintiff and awarded him damages in his action against defendant Frank Developers, Inc. (hereinafter Frank Developers). Judgments were entered for the defendants U.S. Gypsum Urban Development Corporation (hereinafter Gypsum Development) and U.S. Gypsum Company (hereinafter U.S. Gypsum). During the course of the trial the plaintiff seasonably excepted to certain of the court's rulings admitting and excluding evidence. After verdict the plaintiff seasonably excepted to the denial of his motion to set aside the verdict, the failure to grant certain of his requests for findings and rulings, and the granting of certain of the defendants' requests for findings and rulings. All questions of law raised by these exceptions as well as any exceptions appearing in the transcript or appendix were reserved and transferred. We affirm.

On March 31, 1971, the plaintiff, as trustee for Newex Realty Trust, purchased an option to buy a tract of land from Virginia DeRochemont in Newington. He allegedly intended to develop a shopping center on the land. The plaintiff agreed to pay $10,000 for the option for the period ending June 31, 1971, an additional $5,000 to extend the option to August 31, 1971, and an additional $5,000 to extend the option to October 31, 1971.

At the time the plaintiff acquired this option the defendants had already begun developing a shopping center on adjacent land. That shopping center was being constructed by Frank Properties Company III (hereinafter Frank Properties) and defendant U.S. Gypsum pursuant to a joint venture agreement. Under the terms of the joint venture agreement, all contracts for development of the shopping center in excess of $10,000 had to be approved by a policy committee composed of representatives of U.S. Gypsum and Frank Properties. Defendant Frank Developers, not a party to the joint venture, assisted in preliminary planning and development of the shopping center.

In May 1971 the plaintiff met with officers of Frank Developers, who were also partners of Frank Properties. They discussed the possibility of constructing a single shopping center jointly, instead of two competing ones. Negotiations continued in June, at which time the plaintiff and Frank Developers entered into an oral contract. The terms and conditions of this contract, which were never reduced to writing, were found by the court, to be as follows:

(1) Plaintiff would receive $60,000 as consideration for his promise to let the DeRochemont option expire without exercising his right to purchase and develop the land;

(2) Plaintiff would be reimbursed for expenses he incurred in acquiring his option to purchase the DeRochemont parcel;

(3) Plaintiff would help the Frank interests obtain a commitment letter from Bardlee's, a department store, evidencing its desire to locate within the defendants' shopping center, subject to approval from existing department stores in the shopping center; and

(4) Plaintiff would help the Frank interests acquire a neighboring tract of land owned by Pauline Calderwood, which the defendants desired to add to their shopping center.

The joint venturers continued developing their shopping center. During the course of the project, U.S. Gypsum dissolved its relationship with the Frank interests, which then went out of business without assets. U.S. Gypsum took title to the shopping center in the name of Gypsum Development and completed the development with another real estate developer, Arlen Realty.

The trial court found that the plaintiff had fully performed his part of the oral agreement but was never paid by defendant Frank Developers. The court further found that the officers of Frank Developers, who were also partners of Frank Properties, represented to the plaintiff that U.S. Gypsum was engaged in a joint venture with Frank Properties. However, the court also determined that the plaintiff was put on notice that his contract with Frank Developers had to be approved by the joint venturers before they could be bound by the agreement.

In this appeal the plaintiff claims that the court erred in not finding U.S. Gypsum liable for damages and, in the alternative, liable in quasi-contract for the value of its unjust enrichment. Before we address these arguments, however, we first consider defendant Frank Developers' contention that the judgment against it should be reversed. Frank Developers has filed neither a reserved case nor a bill of exceptions. Under the superior court rules, a party who fails to file a reserved case or bill of exceptions is deemed to have waived his exceptions. Superior court rule 69 RSA 491:App.R. 69 (Supp.1977) (renumbered Rule 74 effective January 1, 1977). Frank Developers was specifically notified by the clerk of court that its exceptions would be deemed waived if it filed no reserved case. The defendant did not respond to this notice. Furthermore, in an independent but related action commenced in federal district court, Frank Developers stipulated that it took no appeal from the instant judgment against it. Now, however, the defendant desires to have the judgment reversed, relying on the statement in the reserved case that "All questions of law, raised by the foregoing exceptions or any exceptions appearing in the transcript or appendix, are reserved to transfer." The defendant's reliance is misplaced; this broad language is mere boiler-plate. It does not appear that the superior court intended by this language to transfer the defendant's exceptions despite the latter's failure both to file a reserved case or bill of exceptions and to move to be permitted to file late.

Nothing in Silver v. First National Bank, 108 N.H. 390, 236 A.2d 493 (1967), is to the contrary. In Silver this court did pass on the defendant's exceptions even though the defendant had not filed a reserved case or bill of exceptions. However, the trial court in that case, at a post-judgment hearing, had expressly granted the defendant's request that its exceptions be transferred. Id. at 393, 236 A.2d at 496. In addition, the reserved case in Silver, unlike the case before us, stated that: " 'All exceptions Taken by the parties . . . are reserved and transferred.' " Id., at 393, 236 A.2d at 496. (Emphasis added.) That language made additionally clear that both parties' exceptions were reserved and transferred. We conclude that Frank Developers may not now contest the judgment against it.

Turning to the merits of the plaintiff's appeal, we first hold that the trial court did not err in holding against the plaintiff in his action for damages against U.S. Gypsum. The parties apparently agree that Gypsum Development is merely a nominal defendant, and that its interests are not distinct from those of U.S. Gypsum. Therefore, for purposes of this appeal we do not discuss Gypsum Development's liability apart from that of U.S. Gypsum.

The court made the following findings, which are not challenged on appeal and which we think are fatal to the plaintiff's claims:

1) The oral agreement was entered into between the plaintiff and the defendant...