Ross v. Ross

• Decision Date: 28 September 2017
• Docket Number: No. 2016–0370,2016–0370
• Citation: 170 N.H. 331,172 A.3d 1069
• Parties: Wayne ROSS, Trustee of the Wayne Ross Revocable Trust & A. v. Donald W. ROSS & a.
• Court: New Hampshire Supreme Court

170 N.H. 331

172 A.3d 1069

Wayne ROSS, Trustee of the Wayne Ross Revocable Trust & A.

v.Donald W. ROSS & a.

No. 2016–0370

Supreme Court of New Hampshire.

Argued: June 1, 2017

Opinion Issued: September 28, 2017

Ramsdell Law Firm, P.L.L.C., of Concord (Michael D. Ramsdell on the brief and orally), for the plaintiffs.

Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Peter G. Callaghan on the brief and orally), for the defendants.

HICKS, J.

The plaintiffs, Wayne and Ruth Ross, trustees of the Wayne Ross Revocable Trust and the Ruth Ross Revocable Trust, respectively, appeal an order of the Superior Court (McNamara, J.), following a bench trial, in favor of the defendants, Donald Ross and Rossview Farm, LLC (the LLC). The plaintiffs contest the trial court's findings that the parties entered into a lease for the plaintiffs' lifetimes and that they had no right to evict the defendants pursuant to RSA 540:2, II(d) or (e) (2007). We vacate and remand.

I. Facts

The trial court found the following facts. The plaintiffs have owned a farm in Concord since at least 1957. Throughout the years, the farm has produced or sold dairy products, hay, firewood, timber, Christmas trees, strawberries, maple syrup, and blueberries.

In 1998, one of the defendants, Donald, the plaintiffs' son, agreed to work on the farm. Through the early 2000's, Donald was treated as an employee of the farm, and he began to assume increasing responsibility for the farm's operation. As he did so, the plaintiffs transferred assets of the farming operation to him. In 2003, Wayne told Donald that he wanted Donald to run the farm until Wayne's death, whereupon Donald would inherit the farm. The plaintiffs consulted with attorneys about estate planning and attended seminars on transferring family farms. In 2004, defendant Rossview Farm, LLC was registered with the State and the parties granted the LLC permission to use the trade name "Rossview Farm." Around 2004 or 2005, Donald took over operations of the farming business. Wayne continued to work on the farm occasionally, but Donald received all of the farm's income and paid all of its expenses.

The parties agreed in January of 2006 that Donald would pay monthly rent. In June of that year, Wayne agreed to revise a United States Department of Agriculture (USDA) contract to reflect that "Wayne Ross [was] leasing [the farm's] operation to Donald." (Quotation omitted.) Nine days after Donald submitted the revision, the parties executed a written lease which provides, in total, as follows:

June 23, 2006

To whom it concerns:

We, Wayne and Ruth Ross, lease our farm land on District # 5 Road in Concord, NH, to Donald Ross of Rossview Farm LLC for $21,000 per year.

The trial court found that the written lease was prepared only to satisfy the requirements of the USDA and that the original lease between the parties was oral. Between 2004 and 2013, Donald ran the farm and made significant investments in it. Donald paid the rent of $21,000 per year, although he did not always pay on time and frequently paid in cash, until 2011, when the parties agreed rent would no longer be required.

By 2013, the parties were at odds with one another. Two physical altercations occurred, one in 2010 and one in 2013. After serving Donald an "eviction notice and notice to vacate, on or before January 11, 2014," the plaintiffs filed this action seeking a preliminary injunction, a permanent injunction, and declaratory judgment to determine their rights to terminate the lease and declare that Donald had no right to remove property from, or permanently alter property on, the farm or to use Rossview Farm's graphic.

After a bench trial, the trial court found that: (1) Donald's lease of the farm is for the plaintiffs' lifetimes; (2) the plaintiffs do not have the right to evict Donald for non-payment of rent; (3) the plaintiffs do not have the right to evict Donald pursuant to RSA 540:2, II(d) or (e); (4) Donald maintains the right to the perennial crops on the property; and (5) the LLC is the owner of the trade name and logo of Rossview Farm. The plaintiffs moved for reconsideration, which the trial court denied. This appeal followed. On appeal, the plaintiffs challenge only the trial court's findings that the lease's duration is for the plaintiffs' lifetimes and that RSA 540:2, II (Supp. 2016) does not authorize them to evict the defendants.

II. Lease

On appeal, the plaintiffs contend that the trial court erred by concluding that the parties entered into a lease for the plaintiffs' lifetimes. Specifically, they argue that it was error for the trial court to rely upon parol evidence to determine the duration of the lease because the June 23, 2006 document is an insufficient writing under the statute of frauds. See RSA 506:1 (2010).

It is insufficient, in the plaintiffs' view, because it lacks an essential term: the duration. The defendants dispute that the duration is an essential term of a memorandum satisfying the statute of frauds and, alternatively, argue that the June 23, 2006 document identifies the duration of the lease with reasonable certainty to satisfy the statute of frauds. The defendants further argue that to enforce the statute of frauds would perpetrate a fraud and that the doctrine of part performance removes the lease from the operation of the statute of frauds.

A. Availability of judicial review

The trial court found that the plaintiffs conceded that the June 23, 2006 document satisfies the statute of frauds. Conceding an issue in the trial court waives a party's right to contest that issue on appeal. See Milliken v. Dartmouth–Hitchcock Clinic, 154 N.H. 662, 669–70, 914 A.2d 1226 (2006) (concluding that plaintiffs waived appellate argument by conceding issue in trial court). We uphold the trial court's factual finding unless it lacks evidentiary support or is legally erroneous. Jesurum v. WBTSCC Ltd. P'ship, 169 N.H. 469, 476, 151 A.3d 949 (2016).

The trial court found that the plaintiffs conceded that the June 23, 2006 document satisfied the statute of frauds because, in their post-trial memorandum, the plaintiffs explained their position that the June 23, 2006 document "is a writing signed by all the parties that states the terms of the parties' agreement. This document satisfies the statute of frauds and governs their relationship." The "clear" language of the June 23, 2006 document, the plaintiffs posited, creates a yearly lease. However, the plaintiffs also argued in the post-trial memorandum that the defendants' introduction of parol evidence of the parties' intent to create a perpetual lease violated the statute of frauds because "the intent of the parties to create a perpetual lease must be clear from the face of the document and there must be a document to satisfy the statute of frauds." Thus, the plaintiffs did not concede that the June 23, 2006 document satisfies the statute of frauds for all purposes; instead, they contended that it "satisfies the statute of frauds" if the document is read to create a yearly lease.¹ Therefore, the trial court's finding that the plaintiffs conceded the issue lacks evidentiary support, and we conclude that the plaintiffs did not waive their statute of frauds argument by concession.

We next address the defendants' argument that the plaintiffs did not preserve their argument that the June 23, 2006 document does not satisfy the statute of frauds. "It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial." Thorndike v. Thorndike, 154 N.H. 443, 447, 910 A.2d 1224 (2006) (quotation omitted). "The rationale behind the rule is that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court." Mortgage Specialists v. Davey, 153 N.H. 764, 786, 904 A.2d 652 (2006) (quotation and brackets omitted). Accordingly, we have held that when an issue is raised for the first time in a motion for reconsideration and failure to raise the issue earlier did not deprive the trial court of a full opportunity to correct its error, the issue has been preserved for our review. Id.

In the trial court, the plaintiffs argued that the lease was only a one-year lease. Accordingly, they contended that the June 23, 2006 document "satisfies the statute of frauds." When the trial court concluded in its order that the lease was actually for the duration of the plaintiffs' lifetimes, they properly filed a motion for reconsideration raising the argument that they now raise on appeal: that the lease the trial court found was for the plaintiffs' lifetimes violated the statute of frauds in the absence of a writing reflecting "a term of years." Furthermore, the trial court specifically addressed whether the June 23, 2006 document contained "the essential elements of ‘a writing’ " satisfying the statute of frauds in its order on the plaintiffs' motion to reconsider. Thus, we conclude that the plaintiffs' argument is preserved.

The defendants also argue that the plaintiffs are judicially estopped from arguing that the June 23, 2006 document was insufficient to satisfy the statute of frauds because the argument is "directly contrary to [the plaintiffs'] position below." "The doctrine of judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Cohoon v. IDM Software, 153 N.H. 1, 4, 891 A.2d 552 (2005) (quotation omitted). "We have noted three factors that typically inform the decision whether to apply the doctrine in a particular case." Id. (quotation omitted).

One factor to consider in deciding whether to apply the doctrine of judicial estoppel is whether the party's later position is clearly inconsistent with its earlier position. Courts also regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position. A third consideration is whether the par

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