Martin Woodford and Jennifer Woodford, Trustees of the Woodford Family Trust v. Bradford A. Knight d/b/a Knight Custom Homes

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0344, Martin Woodford and Jennifer
Woodford, Trustees of the Woodford Family Trust v. Bradford A.
Knight d/b/a Knight Custom Homes, the court on April 7,
2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Bradford A. Knight d/b/a/ Knight Custom Homes, appeals and the
plaintiffs, Martin Woodford and Jennifer Woodford, Trustees of the Woodford
Family Trust, cross-appeal rulings of the Superior Court (Anderson, J.)
resolving a dispute arising out of alleged deficiencies in a custom home that the
defendant constructed and sold to the plaintiffs. We affirm.

I. Background

The following facts are supported by the record. The plaintiffs and the
defendant executed a purchase and sale agreement in October 2015, whereby
the defendant agreed to construct a dwelling in the Victoria Ridge subdivision
in Amherst and sell it to the plaintiffs. After moving into the home in October
2016, the plaintiffs observed problems including gapping in the hardwood
floors, gapping of countertops, floor squeaking, loose grout in the tile flooring,
the propane tank pit filling with water, and problems with the HVAC system.

After the defendant disclaimed responsibility for the problems, the
plaintiffs hired an engineer, John Turner, to inspect the home. In his report,
Turner identified several areas of concern including issues with the
construction of the foundation and with the floor and roof framing. As a result,
the plaintiffs hired a structural engineer, Joaquin Denoya, to further
investigate the structural components of the home. In his initial report,
Denoya identified several potential concerns, recommended a full structural
analysis, and provided a rough cost of repair estimate. The plaintiffs also hired
an expert in flooring inspection, David Buss, to examine the flooring in the
home and he reported that the hardwood and tile flooring had been installed
improperly.

In June 2017, the plaintiffs sent a notice letter and notice of warranty
claims to the defendant pursuant to RSA chapter 359-G. In early July, the
plaintiffs hired a landscaper to cut down trees on the property. On July 13,
the defendant emailed the plaintiffs’ counsel with the heading “Cease and
Desist Order,” explaining that the plaintiffs’ tree-cutting activities had violated
the Victoria Ridge covenants and that he would be pursuing legal action, and
recommending that the plaintiffs start researching the cost of “sourcing 80+
trees, crane service etc.” The defendant also hired a structural engineer, Linda
McNair Perry, who authored a preliminary report reviewing the reports
submitted by Turner and Denoya, in which she disagreed with both experts’
conclusions, although she stated that she had not inspected the residence nor
done an independent structural analysis.

In early 2018, the plaintiffs had Denoya conduct a full structural
engineering analysis. In his report, Denoya analyzed the foundation, basement
columns, floor joists and beams, and the roof framing system, and prepared a
conceptual plan to be used to estimate the cost of repair. The plaintiffs also
had Turner investigate problems they were having with water pooling in the
backyard. Turner’s report detailed the reasons he believed the drainage system
needed to be replaced.

In May 2018, the plaintiffs sued the defendant for: (1) breach of
contract/implied warranty of workmanlike construction; (2) breach of
contract/express warranties; and (3) violation of the New Hampshire Consumer
Protection Act, RSA chapter 358-A (CPA). The defendant counterclaimed for
breach of the Victoria Ridge covenant pertaining to tree cutting. Following a
thirteen-day bench trial, which included a view, the court found in favor of the
plaintiffs on the breach of contract claims, in favor of the defendant on the CPA
claim, and in favor of the plaintiffs on the defendant’s counterclaim. Both
parties sought reconsideration. The trial court denied the defendant’s motion,
and granted in part and denied in part the plaintiffs’ motion. This appeal and
cross-appeal followed.

In reviewing a trial court’s decision rendered after a trial on the merits,
we will uphold the trial court’s factual findings and rulings unless they lack
evidentiary support or are legally erroneous. O’Malley v. Little, 170 N.H. 272,
275 (2017). We do not decide whether we would have ruled differently than the
trial court, but rather, whether a reasonable person could have reached the
same decision as the trial court based upon the same evidence. Id. Thus, we
defer to the trial court’s judgment on such issues as resolving conflicts in the
testimony, measuring the credibility of witnesses, and determining the weight
to be given evidence. Id. We review the trial court’s application of the law to
the facts de novo. Id.

II. Defendant’s Appeal

The defendant first argues that the trial court erred when it denied his
counterclaim alleging that the plaintiffs violated a Victoria Ridge covenant

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when they cut down trees in 2017 without the required approval. The
covenant provided:

No “clear cutting” of the lots will be allowed. No more than 15
trees per year can be removed with out [sic] the developers [sic]
written consent. Replacement of any trees (above 15) cut will be at
the lot owners [sic] expense (same approx. size). It will be at the
developers [sic] sole discretion as to approvals on tree cutting.

In rejecting the defendant’s counterclaim, the trial court reasoned that
“‘provisions in a contract which require waiver or modification of contract
provisions to be in writing cannot completely restrict the parties’ ability to
orally alter the contract.’” (Quoting Prime Financial Group, Inc. v. Masters, 141 N.H. 33, 37 (1996)). Accordingly, the trial court determined that it “must
look to the intent of the parties to determine whether they intended to waive
the in-writing provision and give effect to their intent,” noting that the waiver of
an in-writing provision “‘may itself be implied from the conduct of the parties.’”
(Quoting id.).

The trial court found that in December 2015 the plaintiffs discussed with
the defendant which trees on the property needed to be cut to accommodate
the house and yard. Plaintiff Martin Woodford testified that when he and his
wife spoke with the defendant about the yard, the defendant recommended
that they cut the trees back to a rock wall at the edge of the property. At that
time, the plaintiffs chose not to cut all the way to the rock wall because they
did not want to be responsible for the landscaping that such an extensive
cutting would require. Martin testified that when they undertook tree removal
in July 2017, he believed they had the consent of the defendant based on the
defendant’s prior recommendation that they cut back to the rock wall.

The court found credible Martin’s testimony that the defendant “not only
agreed but encouraged” the plaintiffs to cut trees back to the rock wall, and it
found that the defendant did nothing to limit or revoke his consent in the
intervening years. The court did not find credible the defendant’s testimony in
which he denied that he encouraged the plaintiffs to cut back to the rock wall.
The court also noted that a promotional video for the Victoria Ridge subdivision
introduced at trial “reflect[ed] poorly” on the defendant’s credibility. In that
video the defendant, walking into the back yard of another lot in the
subdivision, which was a large grassy area bordered by a rock wall, states:

[W]e had a lot of trees growing all the way up and down around
here. It was a much closer area. They opted to have a really big
yard for their kids, so we actually took down about 200 trees all
the way around the outside of the yard to give a nice big yard.
Their plan is to put a pool in back here, and obviously, there’s
plenty of room for all that.

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Martin testified that the rock wall in the video is the same rock wall that
extends into and borders his property.

On appeal, the defendant argues that his “assertions that he never
approved nor would approve the subject clear cutting should have been what
the [trial court] relied upon,” and that “[a]ny reasonable person would have
concluded [that his] testimony was more reliable.” However, as the trial court
reiterated on reconsideration, in rejecting the defendant’s counterclaim it relied
on Martin’s “credible testimony” that the defendant never expressed any
resistance to the plaintiffs cutting trees at a later date back to the rock wall for
a bigger yard. We defer to the trial court’s judgment on resolving conflicts in
the testimony and measuring the credibility of witnesses. Little, 170 N.H. at
275. In light of that deference, we affirm the trial court’s determination that
the parties intended to waive the in-writing provision as it pertained to cutting
trees to the rock wall. Accordingly, we need not address the defendant’s
arguments that the court’s additional reasons for reaching the same conclusion
were erroneous.

The defendant next argues that the trial court erred “when it determined
plaintiffs’ experts to have provided lawful expert opinion sufficient for plaintiffs
to succeed.” (Capitalization and bolding omitted.) To the extent the defendant
is asserting that the plaintiffs’ experts did not meet the legal standards
governing expert testimony, because the defendant did not contest their
qualifications as experts at trial, this argument is deemed waived. See In re
Eduardo L., 136 N.H. 678, 689 (1993); State v. McMinn, 141 N.H. 636, 642
(1997) (the general rule in this jurisdiction is that a contemporaneous and
specific objection is required to preserve an issue for appellate review). To the
extent the defendant is asserting that the trial court should have credited
different testimony than it did, as the trier of fact the trial court was free to
accept or reject any expert’s testimony, in whole or in part. See Appeal of N.H.
Elec. Coop., 170 N.H. 66, 74 (2017). As the trial court explained, “it found
multiple witnesses credible with respect to some issues and non-credible with
respect to other issues,” it “assessed the credibility of witnesses separately with
respect to different issues depending upon its own observation of the witnesses’
demeanor when speaking about different areas,” and it “considered whether
accompanying exhibits or other witnesses supported each witness[’s]
testimony.”

More specifically, the defendant argues that the plaintiffs failed to
provide expert testimony sufficient to prove that the roof and the foundation
walls “did not meet code.” (Capitalization and bolding omitted.) Regarding the
roof, although the defendant asserts that the trial court’s order “inexplicably
concluded that by a preponderance of the evidence code violations exist in the
roof structure,” the court in fact made detailed findings on this issue. These
findings included that: the plaintiffs’ expert “unequivocally determined that

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code violations existed in each [individual roof] section”; the expert “identified
the specific violations . . . and included both a calculation package and
citations to the relevant code provisions”; and there was “nothing in the record
to support” the defendant’s position that the expert’s opinion was “somehow
inadequate or incomplete.”

Regarding the foundation walls, the defendant points to conflicting expert
testimony to assert that the trial court erred in determining that they do not
meet code. However, the trial court expressly found that the code provisions
the defendant’s expert used to assess the foundation walls “required the rebar
to be installed in a specific manner that differs from the way [the defendant]
installed it” and that the defendant’s expert was “not . . . credible in her
testimony that she believe[d] the walls meet code.” We have reviewed the
record and conclude that it supports the trial court’s findings addressing both
the roof and the foundation walls. Accordingly, we find no error.

In addition, the defendant challenges the trial court’s determination of
damages in three areas — the foundation drain, the flooring, and damages
“based on conceptual repair plans and an incomplete structural analysis.”
(Capitalization and bolding omitted.) In reviewing damage awards, we view the
evidence in the light most favorable to the prevailing party, and will overturn
an award only if we find it to be clearly erroneous. McNeal v. Lebel, 157 N.H.
458, 466 (2008).

The gist of the defendant’s argument regarding the foundation drain
appears to be that the trial court ordered the defendant to pay damages for
repair costs that it erroneously attributed to him. According to the defendant,
there was “no proof” that the sump pump was in constant operation, and the
trial court “inexplicably found [the defendant’s] installation of the sump pump
to partially contribute” to the plaintiffs’ water problem. However, the trial
court’s order clearly stated that it found credible Martin’s testimony that the
sump pump was operating “24/7” and that the defendant “admitted at trial
that he departed from the design plans and dug a deeper foundation than the
parties had agreed on.”

With regard to the flooring, the defendant argues that the trial court
erroneously “flipped flopped” when it ruled on reconsideration that the
defendant was ten percent liable for issues with the hardwood flooring and tile
flooring installation. We disagree. The trial court simply acknowledged that it
had mistakenly failed to consider credible testimony that the defendant’s
“installation of the floor in an environment that was not temperature controlled
contributed to the deficient end result.” Given that failure, the court corrected
itself and ruled that the plaintiffs were entitled to ten percent of the total costs
to repair the hardwood floor and the defects in the tile flooring.

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 Finally, the defendant argues that the trial court erred when it awarded
damages “based on incomplete speculative expert reports and estimates based
on conceptual plans.” The court, however, accepted credible expert testimony
“that conceptual repair plans are not only adequate for creating cost of repair
estimates, but they are typically used in the industry for this purpose.”

We have reviewed the record in the light most favorable to the plaintiffs
on each of the defendant’s challenges to damages set forth above and conclude
that the trial court’s award is not clearly erroneous. See id. Accordingly, we
affirm.

III. Plaintiffs’ Cross-Appeal

In their cross-appeal, the plaintiffs argue that the trial court erred by
denying their CPA claim. They assert, contrary to the trial court’s findings,
that the defendant made numerous “material misstatements which were
individually and collectively unfair and deceptive.”

The trial court’s findings of fact and rulings of law will be upheld unless
they lack evidentiary support or constitute a clear error of law. Beer v.
Bennett, 160 N.H. 166, 168-69 (2010). Pursuant to RSA 358-A:2 (2022), it is
“unlawful for any person to use any unfair method of competition or any unfair
or deceptive act or practice in the conduct of any trade or commerce within this
state.” Although RSA 358-A:2 is broadly worded, not all conduct in the course
of trade or commerce falls within its scope. Fat Bullies Farm, LLC v.
Devenport, 170 N.H. 17, 24 (2017). An ordinary breach of contract claim does
not violate the CPA. State v. Moran, 151 N.H. 450, 453 (2004).

As the trial court stated, the “essence” of the plaintiffs’ CPA claim was
that the defendant “inflated his qualifications and represented himself as a
superior builder, and then failed to construct a quality home for them.” The
court found, however, that many of the plaintiffs’ claims with respect to the
defendant’s alleged poor workmanship were “unfounded” and “many of the
issues [the plaintiffs] complained of were caused, in part, by [their] own
actions.” Accordingly, the trial court found that the plaintiffs’ claims regarding
the quality of the home did not rise to “anything more than an ordinary breach
of contract claim.” Because the record supports the trial court’s finding, we
affirm. See Barrows v. Boles, 141 N.H. 382, 390 (1996) (an ordinary breach of
contract claim does not present an occasion for the remedies under the CPA);
State v. Sideris, 157 N.H. 258, 262 (2008) (whether the defendant’s conduct
was, in fact, unfair or deceptive in violation of the CPA, as opposed to an
ordinary breach of contract, was a matter for the factfinder).

Finally, to the extent the plaintiffs suggest, in passing, that the trial
court erred by not awarding them attorney’s fees with respect to their breach of

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contract claims, complaints about adverse rulings without developed legal
argument are insufficient to warrant appellate review. See Skinny Pancake-
Hanover v. Crotix, 172 N.H. 372, 380 (2019).

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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