Michael J. Glick, DDS v. Chocorua Forestlands Limited Partnership; Chocorua Forestlands, LLC v. Michael J. Glick, DDS & a.; Chocorua Forestlands Limited Partnership & a. v. Michael J. Glick, DDS

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0257, Michael J. Glick, DDS v. Chocorua
Forestlands Limited Partnership; Chocorua Forestlands, LLC v.
Michael J. Glick, DDS & a.; Chocorua Forestlands Limited
Partnership & a. v. Michael J. Glick, DDS, the court on June
22, 2015, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. Michael J.
Glick, D.D.S., appeals an order of the Superior Court (Houran, J.), following a
bench trial, in which the trial court: (1) determined that a parcel of land
known as the “Lee Lot” was not included in Glick’s rights of first refusal; (2)
found that Chocorua Forestlands Limited Partnership (CFLP) retained certain
rights of way, and, alternatively, was entitled to an easement by necessity; (3)
concluded that the size of the Lee Lot was 20.20 acres and the four lots subject
to Glick’s rights of first refusal totaled approximately 206 acres; and (4) denied
Glick’s motion for contempt. We affirm.

This is the third time that these parties have come before us. A detailed
account of the underlying facts and procedural history can be found in our
previous decisions, see Glick v. Chocorua Forestlands Ltd. P’ship, 157 N.H.
240 (2008); Michael J. Glick, DDS v. Chocorua Forestlands Limited
Partnership; Chocorua Forestlands, LLC v. Michael J. Glick, DDS, No. 2009-
0628 (N.H. Dec. 7, 2010). We recite only those facts pertinent to this appeal.

In 1985, CFLP owned four so-called “Masonian Lots” on the Ossipee and
Moultonborough town line that largely surround Glick’s land. In 1986, CFLP
and Glick entered into an agreement (the 1986 agreement) concerning their
respective properties. As part of the agreement, CFLP received certain
easements across Glick’s property, and, in return, Glick received rights of first
refusal in the four lots if CFLP ever wished to sell them.

In 1998, CFLP entered into a purchase and sale agreement with a third-
party buyer for the four lots, and, pursuant to the 1986 agreement, informed
Glick that he had 30 days to exercise his rights of first refusal by tendering
$375,000. Glick, 157 N.H. at 244. The purchase and sale agreement with the
buyer was ultimately cancelled, leading to litigation over whether Glick’s rights
of first refusal were still exercisable. Id.
 We eventually determined that Glick had valid rights of first refusal
arising from the 1986 agreement. Id. at 249-50. Accordingly, we held that
Glick was entitled to specific performance. Id. at 250. Additionally, we
remanded for the trial court to determine whether the purchase price in the
purchase and sale agreement was inflated, as alleged by Glick. Id. at 251-52.

Upon remand, the trial court determined that the four lots comprised
220.9 acres, and that their total fair market value was $125,913. CFLP and
Chocorua Forestlands, LLC (Chocorua) (the current owner of the Lee Lot)
appealed, and we affirmed. See Michael J. Glick, DDS, No. 2009-0628, at 1-2.

Following that decision, CFLP sent a draft quitclaim deed to Glick
concerning the conveyance of the four lots to him. The draft deed contained a
metes and bounds description of the four lots, but it excluded a 20.20 acre
parcel — the Lee Lot — from its description of one of the Masonian Lots (Lot
11). It also contained provisions reserving certain rights of way for the benefit
of CFLP.

Glick did not accept the draft deed because he disputed the rights of way
and the exclusion of the Lee Lot. CFLP and Chocorua then filed a petition for
declaratory judgment, to quiet title, and for equitable relief. They claimed that
the Lee Lot was located within Lot 11, and, because CFLP never owned the Lee
Lot, the Lee Lot was not subject to Glick’s rights of first refusal. CFLP also
asserted that, pursuant to the 1986 agreement, it was entitled to reserve rights
of way, or, alternatively, it was entitled to an easement by necessity to reach its
surrounding land.

In response, Glick filed a motion to enforce court order and for contempt,
based upon the draft deed’s exclusion of the Lee Lot from the four lots to be
conveyed to him. According to Glick, the Lee Lot was located some distance
away from Lot 11; hence, he asserted, the entirety of Lot 11 was subject to his
rights of first refusal. Glick also objected to CFLP’s reservation of rights of way
across the four lots and to CFLP’s proffer of a quitclaim deed instead of a
warranty deed, as the purchase and sale agreement required.

A four-day bench trial ensued, during which the trial judge took a view.
Subsequently, the trial court issued the order that is the subject of this appeal.

In its order, the trial court first determined the location of the Lee Lot.
The trial court observed that, at trial, each party provided expert testimony
from a licensed land surveyor concerning this issue. Although the two experts
agreed on the chain of title to the Lee Lot, including the fact that CFLP never
owned the Lee Lot, they disagreed on the location of the Lee Lot.

According to CFLP’s expert, David Douglass, the Lee Lot was located
within Lot 11. The trial court noted that Douglass based his opinion upon tax

2
maps, tax cards, how others in the vicinity of Lot 11 — including, at one point,
Glick — treated the Lee Lot in the past, and the existence of a barbed wire
fence, which ran roughly parallel to the town line, that Douglass considered to
be a boundary fence marking the southern boundary of the Lee Lot. In
contrast, Glick’s expert, Paul King, opined, for various reasons, that the Lee Lot
was located several miles away from Lot 11.

The trial court weighed the competing evidence and ultimately agreed
with Douglass’s conclusion. In addition to finding that tax records supported
its determination, the court found the barbed wire fence, which it observed
during its view, to be “particularly significant.” Given the fence’s location, its
relatively straight trajectory, and the fact that it parallels the town line, the
court further agreed with Douglass that the fence likely serves as a boundary of
the Lee Lot. Thus, the court concluded that the Lee Lot was located within Lot
11; accordingly, because CFLP never owned the Lee Lot, the court determined
that the Lee Lot was not included in Glick’s rights of first refusal.

The court next addressed whether CFLP validly reserved certain rights of
way over the four lots. The trial court observed that, based upon the language
in the 1986 agreement, “it is plain that CFLP’s intent was almost solely
concerned with access to its surrounding land.” Although the agreement itself
did not specifically include language regarding rights of way in the event Glick
exercised his rights of first refusal, the trial court noted that both Glick and the
president of CFLP testified that they believed CFLP entered into the agreement
so as to maintain access to its surrounding land. Additionally, the trial court
highlighted the fact that “CFLP’s intent to maintain continued access to its
properties has been documented throughout the post-Agreement relationship
between the parties and this litigation.” Accordingly, the court concluded that
when Glick and CFLP entered into the agreement, “it was the intent of the
parties that CFLP would . . . retain reasonable rights of access to its
surrounding timber land” and that CFLP never intended to sell the four lots
without reserving rights of way to access its remaining property.

The trial court also agreed with CFLP that, in the alternative, CFLP
should be granted an easement by necessity. Based, in part, upon the court’s
view of the property, the court found that the land CFLP owned in this area is
normally used for timber. The court credited the testimony of CFLP’s
president, who testified about the difficulties and impracticalities of accessing
CFLP’s surrounding land without an easement. The court further found that
access to CFLP’s land could not “be gained without disproportionate effort and
expense.” Accordingly, the court ruled that CFLP was entitled only to rights of
way that were essential to access its surrounding land.

The trial court next determined the size of the Lee Lot and the four lots to
be conveyed to Glick. With regard to the Lee Lot, the court adopted the
rationale and conclusion of Douglass, who decided, based upon various

3
boundaries and the acreage referenced in several deeds, that the Lee Lot
comprised 20.20 acres. As for the size of the four lots subject to Glick’s rights
of first refusal, the court also agreed with Douglass’s assessment that the lots,
without the Lee Lot, comprised a total of approximately 206 acres. Given the
modified acreage, the court recalculated the fair market value of the four lots to
be $117,420, and ordered that the deed to be delivered to Glick for the four lots
be a warranty deed as contemplated by the purchase and sale agreement.

Finally, the court denied Glick’s motion for contempt, concluding that
the record did not support Glick’s assertion that the draft deed violated prior
court orders. Glick unsuccessfully sought reconsideration, and this appeal
followed.

On appeal, Glick argues that the trial court erred by locating the Lee Lot
within Lot 11. He argues that the evidence presented at trial does not support
the trial court’s placement of the Lee Lot within Lot 11, asserting, among other
things, that there was no evidence of an “out-conveyance” from Lot 11. Rather,
he claims, as he did at trial, that the evidence supports locating the Lee Lot
several miles away from Lot 11. Because, according to Glick, the Lee Lot is not
located within Lot 11, he contends that his rights of first refusal extend to the
entirety of Lot 11.

Glick further argues that the trial court erred by concluding that CFLP
was entitled to rights of way over the four lots. He also claims that the trial
court erred by deciding, in the alternative, that CFLP was entitled to access its
surrounding lands via an easement by necessity. Finally, Glick argues that the
trial court erred by denying his motion for contempt.

As the appealing party, Glick has the burden of demonstrating reversible
error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our review of the
trial court’s well-reasoned order, Glick’s challenges to it, the relevant law, and
the record submitted on appeal, we conclude that he has not demonstrated
reversible error. See id.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

Eileen Fox,
Clerk

4