Edwin LeBel & a. v. Iris Buzzell

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0648, Edwin LeBel & a. v. Iris Buzzell, the
court on March 30, 2016, issued the following order:

Having considered the brief, the memorandum of law, and the record
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Iris Buzzell (tenant), appeals a small claim judgment issued
by the Circuit Court (Carroll, J.) in favor of the plaintiffs, Edwin LeBel and
Kathleen LeBel (landlord). She contends that the trial court erred by: (1) ruling
in equity rather than on the contract; and (2) finding that time was of the essence
in the contract. In this case, the defendant has not supplied a transcript of the
hearing before the trial court. Therefore, we assume that the evidence was
sufficient to support the result reached by the trial court, see Bean v. Red Oak
Prop. Mgmt., 151 N.H. 248, 250 (2004), and examine the trial court’s order for
errors of law only, Atwood v. Owens, 142 N.H. 396, 397 (1997).

We first address whether the trial court ruled in equity rather than on the
contract. We conclude that the trial court did not rule in equity. See Fischer v.
Superintendent, Strafford County House of Corrections, 163 N.H. 515, 519
(2012) (stating interpretation of court order is question of law, which we review de
novo). The trial court addressed the terms of the contract, concluded that the
parties intended time to be of the essence, and found that the tenant intended
not to comply with the contract. Its reference to the tenant’s “callousness” was in
support of its finding that the tenant intended not to comply with the contract
deadline. The damages it awarded were based upon the contract and constituted
the amount of the back rent.

The trial court’s only arguable reference to equity occurred in the context of
damages, where it noted that the tenant had been “unjustly enriched” by failing
to pay the back rent, which the landlord had agreed to forgive if the tenant
vacated the property by the date and time stated in the contract. In this context,
we do not interpret the trial court’s use of the phrase “unjustly enriched” to mean
that it was awarding restitution rather than damages under the contract.

We next address whether time was of the essence in the contract. The
interpretation of a contract is a question of law, which we review de novo.
Bergeron v. N.Y. Community Bank, 168 N.H. 63, 67 (2015). As a general rule,
time is not considered to be “of the essence” unless the contract specifically
states that it is. Catholic Med. Ctr. v. Executive Risk Indem., 151 N.H. 699, 703
(2005). However, no specific language is required to make time “of the essence”
under the terms of a contract. Id. Rather, to determine whether time is of the
essence in an agreement, the trier of fact should not use a mechanical test, but
should determine the intent of the parties in light of the instrument itself and all
the surrounding circumstances. Id.

In this case, the contract, which the trial court approved, explicitly stated
that the landlord’s forgiveness of the unpaid rent was contingent upon the tenant
vacating before the stated deadline. Furthermore, the contract identified the time
for performance as the “Possession Deadline” and specified that deadline to the
minute. Cf. Leavitt v. Fowler, 118 N.H. 541, 543-44 (1978) (finding time not of
the essence when purchase and sale agreement required performance within “a
reasonable time after” the closing date). Accordingly, we conclude that the
parties intended time to be of the essence.

The tenant argues that: (1) the contract included consideration on her part
in addition to her promise to vacate by the deadline; (2) the contract provided the
landlord with recourse in the event that she failed to vacate by the deadline and
such recourse would not be instantaneous; and (3) because the trial court
approved the contract, it should be strictly interpreted. However, she does not
cite, nor are we aware of, any authority that these facts vitiate the parties’ intent
regarding the timing of her performance.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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