Rodrigue v. LaFlamme

• Decision Date: 16 November 1982
• Docket Number: No. 82-053,82-053
• Citation: 122 N.H. 966,453 A.2d 1254
• Parties: Gaston RODRIGUE et al. v. Gaston LaFLAMME et al.
• Court: New Hampshire Supreme Court

Page 1254

453 A.2d 1254

122 N.H. 966

Gaston RODRIGUE et al. v. Gaston LaFLAMME et al.

No. 82-053.

Supreme Court of New Hampshire.

Nov. 16, 1982.

Bergeron & Hanson, Berlin (Alethea L. Froburg, Berlin, on the brief and orally), for plaintiffs.

Law Offices of Philip R. Waystack, Jr., Colebrook (Vickie Bunnell, Colebrook, on the brief and orally), for defendants Gaston LaFlamme and Pauline LaFlamme.

Sulloway, Hollis & Soden, Concord (Peter F. Imse, Concord, on the brief), by brief for defendants Timothy M. Duprey and Stephen M. Duprey.

KING, Chief Justice.

The plaintiffs, Gaston Rodrigue and Pauline Rodrigue, brought a petition to enjoin the defendants, Timothy M. Duprey and Stephen M. Duprey, from constructing residential apartment units in West Stewartstown, New Hampshire. A Master (Robert B. Dickson, Esq.) recommended that the plaintiffs' petition be denied. The Trial Court (Dunfey, C.J.) approved the master's recommendation, and the plaintiffs appealed. We affirm.

In 1974, the defendants Gaston and Pauline LaFlamme decided to subdivide approximately eight acres, owned solely by Pauline LaFlamme, of a fifty-acre tract of land in West Stewartstown, into six identical lots bordered on the sides by the remainder of the fifty-acre tract. Because the town had no zoning ordinance or subdivision regulations, the land use in the immediate neighborhood was both residential and commercial.

In June 1975, Pauline LaFlamme conveyed the first of the lots to Jean and Diane Cote. The deed to the Cotes contained eight restrictive covenants which were prepared by the LaFlammes' attorney. The first covenant read as follows: "Occupancy: The land conveyed herein is to be used for single family residence purposes only, except as may be expressly and otherwise approved in writing by the Grantor." (Emphasis added.) Later in 1975, the plaintiffs purchased one of the lots. Their deed contained eight covenants identical to those contained in the Cote deed. The plaintiffs and Pauline LaFlamme discussed the deed at the plaintiffs' attorney's office, and the attorney read the deed in its entirety to the plaintiffs. The plaintiffs did not ask Mrs. LaFlamme or her attorney any questions about the meaning of the covenants contained in the deed.

In late 1980, the defendant Dupreys wanted to purchase four of the lots for the purpose of constructing twenty residential apartment units under a program sponsored by the Farmers Home Administration. In September 1981, after being convinced that the units would be clean and well maintained, Mrs. LaFlamme conveyed four lots plus an additional tract of adjacent land to the Dupreys. Their deed contained an express waiver of the single-family-residential-use covenant.

When the Dupreys started site work for the proposed construction on their property, the plaintiffs commenced this action by filing a petition to enjoin the construction. The petition asserted that the single-family-residential-use covenant in the plaintiffs' deed prevented the Dupreys from using their property for any use other than single-family residences.

At trial, the master found that "there [was] clear and convincing evidence that prior to purchasing [their lot], the [p]laintiffs were made aware of the restrictions and express reservations" in the deed. The master further found that the plaintiffs had ample opportunity to raise any questions concerning the language of the deed prior to closing. Consequently, the master denied the relief sought by the plaintiffs. The plaintiffs took no exception to the master's findings or rulings, nor did they object or except to the master's report or file a motion to set it aside. Rather, the plaintiffs simply appealed the judgment entered below by filing a timely notice of appeal in this court.

Generally, the failure of a party to take an exception to the trial court's ruling will preclude review of the issue on appeal. State v. Kelly, 120 N.H. 904, 905, 424 A.2d 820, 821 (1980). The purpose of the rule requiring exceptions is to ensure that the trial judge is aware that the party unfavorably affected by the ruling is not satisfied. 1 Wigmore on Evidence § 20, at 353 (3d ed. 1940). This enables the trial judge to consider the alleged error in his ruling and to take remedial measures when necessary. State v. Kelly, 120 N.H. at 904, 424 A.2d at 821.

We have, however, noted some limited exceptions to the general rule requiring a party to take an exception. In Barton v. Manchester, 110 N.H. 494, 496, 272 A.2d 612, 613-14 (1970), we noted that exceptions are unnecessary when the hearing below was designed to secure a ruling on a single question. For instance, in Gove v. Crosby, 100 N.H. 380, 128 A.2d 205 (1956), the issue was limited by agreement to whether at the time of her death the decedent was living apart from her husband for cause. The trial court ruled that the burden of proving that the decedent was living apart for cause was on the plaintiff, the brother of the decedent, who sought to have the estate distributed to him rather than to the decedent's husband. The plaintiff took no exception during trial but entered a bill of exceptions after the court entered its finding and decree. We held that despite the plaintiff's failure to take an exception, this court could properly review the issues raised because the hearing was limited to a single question. Id. at 381, 128 A.2d at 206.

The reason that no exception is necessary in cases in which the hearing below was designed to secure a ruling on a single question is that in such a case, an exception by the party unfavorably affected by the ruling on the question would not further the purpose of the rule. Undoubtedly, the trial judge in writing his opinion would already be aware that the losing party would not be satisfied with such a ruling. The trial judge would be unlikely to reverse himself merely because the party excepted to the ruling because the judge already would be aware of the party's reasons for disagreeing with the ruling.

Proulx v. City of Dover, 120 N.H. 674, 421 A.2d 133 (19...