Mohamed F. Hafez v. 100 Northeastern Boulevard, LLC & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0479, Mohamed F. Hafez v. 100
Northeastern Boulevard, LLC & a., the court on April 27, 2020,
issued the following order:

Having considered the defendants’ brief, the plaintiff’s 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 defendants, 100 Northeastern Boulevard, LLC (100 NEB) and Mile
High Real Estate Management, LLC (MHREM), appeal an order of the Superior
Court (Colburn, J.), following an evidentiary hearing, denying their motion for a
new trial on grounds of perjury and newly-discovered evidence. On appeal, the
defendants argue that the trial court erred by: (1) ruling that the allegedly
dishonest testimony1 of the plaintiff, Mohamed F. Hafez, in the underlying case
did not concern a material issue; (2) determining that the defendants were at
fault for failing to discover the newly-discovered evidence in the prior trial, and
that the newly-discovered evidence would not have produced a different result;
(3) neither compelling the plaintiff’s deposition, nor requiring his testimony at
the evidentiary hearing on the motion for a new trial; and (4) not ruling upon
the defendants’ requests for findings of fact and rulings of law.

“A new trial may be granted in any case when through accident, mistake
or misfortune justice has not been done and a further hearing would be
equitable.” RSA 526:1 (2007). Newly-discovered evidence may justify the
granting of a new trial under RSA 526:1. State v. Etienne, 163 N.H. 57, 96
(2011). To obtain a new trial based upon newly-discovered evidence, the
moving party generally must establish that: (1) the moving party was not at
fault for not discovering the evidence at the prior trial; (2) the evidence is
admissible, material to the merits of the case, and not cumulative; and (3) the
evidence is of such a character that a different result will probably be reached
upon a new trial. Id.; Rautenberg v. Munnis, 109 N.H. 25, 26 (1968).

Pursuant to this test, newly-discovered evidence establishing that a
witness in a prior trial testified falsely may justify the granting of a new trial.
1 In their brief, the defendants characterize the trial court’s order on their motion for a new trial

as having “found” that the plaintiff “lied under oath.” The trial court made no such finding.
Instead, it assumed, without deciding, that the challenged testimony from the underlying trial
was both false and dishonest, and determined that, even with those assumptions, the
testimony did not concern a matter that was material to the case and, thus, did not entitle the
defendants to a new trial on the basis of perjury.
Etienne, 163 N.H. at 96; Barton v. Plaisted, 109 N.H. 428, 432-33 (1969); see
also Conant v. O’Meara, 167 N.H. 644, 652 (2015) (observing that under RSA
526:1, perjury by a witness may constitute grounds for a new trial). Moreover,
if the falsely-testifying witness was a party, and if the false testimony both was
dishonest and concerned a material issue, we have held that the verdict will be
set aside regardless of whether a new trial will probably yield a different result.
Barton, 109 N.H. at 432; Rasquin v. Cohen, 92 N.H. 440, 442 (1943). This
exception to the requirement that the moving party establish the likelihood of a
different result does not apply, however, to false testimony that does not
concern a material issue, but “would serve only to discredit” the witness.
Cormier v. Stevens, 107 N.H. 66, 68 (1966).

Whether to grant a new trial under RSA 526:1 is a matter left to the
sound discretion of the trial court, and we will not overturn its determination
absent an unsustainable exercise of discretion. State v. Woodbury, 172 N.H.
358, 370 (2019); Hodgdon v. Weeks Mem. Hosp., 128 N.H. 366, 368 (1986).
Likewise, the trial court has broad discretion over the management of discovery
and the conduct of the proceedings before it, and we will not overturn its
decisions on such matters absent unsustainable exercises of discretion.
Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 40 (2007).
To demonstrate an unsustainable exercise of discretion, it is the defendants’
burden to establish that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of their case. Woodbury, 172 N.H. at 370.

This case arises out of a failed real estate transaction. The record
establishes that at some point on or before May 3, 2013, the plaintiff, a dual
citizen of Egypt and the United States, and Vatche Manoukian, a neighbor of
the plaintiff when he is in the United States, entered into an agreement to
purchase a commercial property located at 100 Northeastern Boulevard in
Nashua for $2,700,000. Either Manoukian or a member of his family has
ownership or management interests in 100 NEB and MHREM; the plaintiff has
never had an interest in either entity. Under the agreement, the plaintiff would
pay the first $100,000, Manoukian would make a second payment of $100,000,
the plaintiff and Manoukian would divide a third payment of $300,000, and
they would obtain seller financing for the remainder of the purchase price. The
plaintiff and Manoukian never reduced their agreement to writing.

On May 3, 2013, the owners of the property executed a letter of intent
(LOI) to sell the property to defendant 100 NEB “and/or [its] assigns.” At that
point, 100 NEB had not yet been formed, and would not be formed until
September 2013. The LOI was accepted on behalf of 100 NEB by Manoukian,
whose signature was followed by the designation, “Manager,” and by the
plaintiff, whose signature was not followed by any designation. The LOI called
for a total sale price of $2,700,000, with $100,000 due upon execution of the
LOI, $100,000 due upon the execution of a purchase and sale agreement,
$300,000 to be paid at a closing to occur on or before September 1, 2014, and

2
$2,200,000 to be financed by the seller. As set forth in the LOI, the plaintiff
paid the sellers $100,000 on May 3.

On August 2, 2013, the sellers of the property entered into a purchase
and sale agreement (P&S) with 100 NEB. At that point, 100 NEB still had yet
to be formed. The terms of the P&S were generally consistent with the LOI,
acknowledging the May 3 deposit of $100,000, and requiring a second payment
of $100,000 by July 30, 2013, a $300,000 payment at a closing to occur on or
before September 14, 2014, and seller financing of $2,200,000. On August 2,
the sellers and 100 NEB entered into an amendment of the P&S extending the
deadline for the second $100,000 payment to August 31, 2013. The signature
pages for both the P&S and its amendment identified the sole purchaser as
“100 NORTHEASTERN BOULEVARD, LLC”; directly underneath the
designation of 100 NEB as the purchaser on each signature page was a
typewritten signature block stating, “By: Vatche Manoukian, Manager,” which
Manoukian signed. Directly underneath Manoukian’s signature block on both
signature pages was a hand-printed signature block stating, “By: Mohamed
Hafez.” The hand-printed signature blocks also contained a signature.

In September 2014, the plaintiff contacted the sellers to inquire about
the closing, and was told that he was not the buyer, but that 100 NEB was the
buyer. The closing did not occur, and the plaintiff demanded that 100 NEB
return his $100,000 deposit. 100 NEB initially agreed to refund the deposit,
but stated that it would “need time . . . to find another investor.” When the
plaintiff did not receive the refund, he filed suit alleging claims sounding in
breach of contract and unjust enrichment. The defendants counterclaimed for
breach of contract, alleging that the plaintiff did not “comply[] with his
agreement as an investor in” 100 NEB and failed to complete the terms of the
P&S, causing MHREM to lose its investment in the P&S and 100 NEB to lose a
potential sale. Manoukian was not named as a party to the suit.

In his complaint, the plaintiff alleged that “[u]pon information and belief,
[he] did not actually sign the [P&S], and furthermore, no individual was
authorized to sign the [P&S] on [his] behalf.” At trial, the plaintiff testified that
he did not recall signing the P&S, that he was in New York on August 2, 2013,
and that the signature on the P&S did not look like his signature. On cross-
examination, he testified that he did not sign the P&S. Also at trial, the
defendants introduced an e-mail dated September 20, 2012 purporting to be
from the plaintiff to Manoukian, and stating that he had authorized his bank in
Egypt to wire Manoukian’s bank $250,000. The plaintiff testified that he did
not recall sending the e-mail, that his name was misspelled in the e-mail, that
he would never have misspelled his own name, that the text of the e-mail did
not look like language he would use, and that he did not think he had sent the
e-mail. Manoukian testified that he received the e-mail, that the $250,000
referenced in the e-mail was to invest in New Hampshire properties, but that
the $250,000 was not for any specific property, but “[j]ust to buy properties.”

3
 The trial court ultimately awarded the plaintiff the $100,000 he had paid
to the owners of the property, and approximately $27,000 that he had paid to
MHREM for expenses in connection with the transaction, under a theory of
unjust enrichment. In so ruling, the trial court concluded that there was no
enforceable agreement between the plaintiff and the defendants and, thus, that
neither the plaintiff nor the defendants could prevail on their contract claims.

At the outset of its analysis, the trial court remarked that “significant
credibility and evidentiary issues . . . pervaded this trial.” The court found that
the plaintiff had “credibly testified” that he had not, in fact, signed the P&S or
its amendment and, thus, that his signature had been forged. Additionally, the
court found that the plaintiff had “credibly testified” that he had not sent the
September 20, 2012 e-mail, and that the e-mail “was almost certainly
doctored.” Finally, the trial court observed that “documents that would
support the defendants’ version of events were conveniently missing.”
Specifically, the court noted that, despite Manoukian’s testimony that the
August 31, 2013 $100,000 payment had been made, there was no “written
documentation evidencing that payment.” “Given the amount of the payment
and its importance,” the trial court observed, “it is inconceivable that neither
the payor nor the payee would produce a copy of that check, either from their
own records or from bank records.” Similarly, the trial court noted that “the
defendants could provide no evidence regarding the purported expenses.”

As to the merits of its determination that there was no contract, the trial
court observed that 100 NEB was not in existence at the time of the agreement
between the plaintiff and Manoukian, and that the plaintiff had not sued
Manoukian. Moreover, the trial court found that, even if 100 NEB had capacity
to contract, there was no meeting of the minds. Specifically, the trial court
noted that, according to the plaintiff, he was to be an owner of the property,
and not merely an investor. By contrast: (1) Manoukian had testified that he
was to purchase the property for his “family”; (2) Manoukian had told the
plaintiff at the time of their negotiations that a transaction was already “in the
works,” and that the plaintiff was only to be “involved” in it; (3) 100 NEB, in its
September 2014 letter agreeing to refund the plaintiff’s $100,000, stated that it
would need to find “another investor”; and (4) the LOI was ambiguous as to
ownership because it identified the buyer as 100 NEB “and/or assigns,” but
was executed by Manoukian on behalf of 100 NEB and by the plaintiff in an
apparent individual capacity. As to the last point, the trial court observed that
if 100 NEB were the buyer, the plaintiff would not have needed to sign the LOI
at all. Accordingly, the trial court ruled that there was no meeting of the minds
as to ownership, “a key provision of the deal.” Finally, the trial court found
that “there appears to be a genuine dispute as to the identities of the parties to
the contract.” As to this point, the trial court observed that although the
plaintiff had “credibly testified that he thought he was purchasing the property
with Mr. Manoukian,” Manoukian’s signature on the LOI put the plaintiff on
notice that Manoukian was acting on behalf of 100 NEB. The trial court

4
further noted that “the plaintiff credibly testified that he never signed the P&S.”
We affirmed the trial court’s decision. See Hafez v. 100 Northeastern
Boulevard, LLC, No. 2017-0316, 2018 WL 2731254 (N.H. May 4, 2018).

Following our order affirming the trial court’s decision, the defendants
moved for a new trial. In their motion, the defendants asserted that they had
newly-discovered evidence that the plaintiff had testified falsely in the prior
trial he had not signed the P&S, and that he had not sent the September 20,
2012 e-mail. Specifically, the defendants asserted that they had retained a
handwriting expert who would opine that the signature on the P&S was from
the plaintiff, and a computer expert who would opine that the September 20,
2012 e-mail came through the same internet service provider in Egypt as
another e-mail that the plaintiff had sent.

Prior to the evidentiary hearing on the motion, the defendants sought to
depose the plaintiff. Although the trial court initially granted a motion to
compel his deposition, it subsequently vacated its order, sua sponte, reasoning
that the hearing on the motion for a new trial was “for a very limited purpose—
to allow the defendants to present the ‘new’ evidence referenced in their
motion—specifically, the testimony of their . . . experts,” and that such
testimony did not require the plaintiff’s deposition. Shortly before the hearing,
the plaintiff moved to excuse his presence from it, asserting that he was then in
Egypt and that his presence was unnecessary, and providing specific dates
when he would be in New Hampshire. The trial court granted the request,
noting that it would keep the record open after the hearing, and if it determined
that the plaintiff’s testimony was required to decide the motion, it would
schedule a further hearing date when the plaintiff would be in New Hampshire.

The trial court denied the motion without requiring the plaintiff’s further
testimony. With respect to the defendants’ claim that the plaintiff had perjured
himself, the trial court assumed, without deciding, that the plaintiff’s testimony
regarding whether he had signed the P&S or sent the September 20, 2012 e-
mail was both false and dishonest. Even with those assumptions, the trial
court reasoned that such testimony did not relate to material issues, and that
it had considered the testimony only to assess the credibility of the witnesses.
The trial court observed that “there were other, far more important reasons
why the Court found the plaintiff’s version of events to be more credible apart
from his testimony on these two peripheral matters, the most important of
which was his ability to corroborate the material parts of his testimony with
written documentation and the defendants’ corresponding failure to do the
same.” With respect to the defendants’ claim that they were entitled to a new
trial based on newly-discovered evidence, the trial court reasoned that: (1) the
defendants were at fault for not discovering the new evidence at the prior trial
because they never engaged in pretrial discovery; and (2) the new evidence
would not have changed the outcome because it was neither relevant to the
merits nor central to the trial court’s credibility determinations.

5
 On appeal, the defendants argue that the plaintiff “signed the [P&S] as
the buyer,” and that their counterclaim “was premised on the validity of the”
P&S. Had the trial court found that the plaintiff executed the P&S, according
to the defendants, he would have been “a co-buyer with 100 NEB according to
the” P&S and the LOI. Thus, the defendants argue that testimony that the
plaintiff did, in fact, sign the P&S and its amendment and send the September
20, 2012 e-mail “support the position that the Plaintiff was a co-purchaser and
the parties had an agreement to co-purchase the property.” Under these
circumstances, the defendants assert that the trial court erred by finding that
the alleged perjury did not concern material matters, and that the new
evidence would not have changed the outcome. The defendants further
challenge the trial court’s determination that they were at fault for not
discovering the new evidence at the prior trial, its decisions not to compel the
plaintiff’s deposition or his attendance at the hearing, and not to rule upon
their requests for findings of fact and rulings of law.

Contrary to the defendants’ arguments, the P&S was an agreement
purporting to be between the owners of the property and 100 NEB. It was not
a contract between the owners and the plaintiff. Nor was it a contract between
100 NEB and the plaintiff. Nowhere in the P&S is the plaintiff ever defined as
“buyer.” Rather, the sole “buyer” is expressly defined as 100 NEB, a company
in which the plaintiff has never held an interest, and the signature blocks, “By:
Vatche Manoukian, Manager” and “By: Mohamed Hafez” that appear directly
below the buyer designation of 100 NEB indicate only that the signatories were
executing the contract on behalf of 100 NEB. Accordingly, as the trial court
had observed with respect to the LOI, the plaintiff’s signature on the P&S, even
if authentic, is at best ambiguous as to ownership, and would not have
established that the plaintiff and 100 NEB ever had a meeting of the minds as
to ownership so as to create an enforceable contract. With respect to the
September 20, 2012 e-mail, Manoukian specifically testified that it did not
concern any specific property.

Upon this record, we cannot say that the trial court unsustainably
exercised its discretion by determining that the plaintiff’s testimony regarding
whether he had signed the P&S or sent the e-mail did not concern material
issues, and that newly-discovered evidence that such testimony was false
would not affect the outcome of the case. Woodbury, 172 N.H. at 370.
Accordingly, we need not address whether the trial court erred by concluding
that the defendants were at fault for not discovering the new evidence at the
prior trial. Nor could we say that the trial court’s decisions not to compel the
plaintiff’s deposition with respect to the motion for a new trial or his
attendance at the hearing on the motion were clearly untenable or
unreasonable to the prejudice of the defendants’ case. Id. With respect to the
defendants’ argument that the trial court erred by not ruling upon their specific
requests for findings of fact and rulings of law, the trial court was not required
to rule upon the requests because it issued a narrative order that explained its

6
rulings and articulated the basic or essential facts supporting its rulings.
Birch Broad. v. Capitol Broad. Corp., 161 N.H. 192, 201 (2010).

We have considered the defendants’ remaining arguments, and conclude
that they are either insufficiently developed, see State v. Blackmer, 149 N.H. 47,
49 (2003), or otherwise do not warrant further discussion, see Vogel v. Vogel, 137
N.H. 321, 322 (1993).

Affirmed.

Hicks, Bassett, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

7