Robert P. Lefevre & a. v. John J. Ingalls, Jr., Trustee of the J and L Ingalls Family Revocable Trust of 2004 & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0246, Robert P. Lefevre & a. v. John J.
Ingalls, Jr., Trustee of the J and L Ingalls Family Revocable
Trust of 2004 & a., the court on April 11, 2023, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiffs, Robert P. Lefevre, Freida M. Lefevre, and
Robert Pellegrino, appeal an order of the Superior Court (Honigberg, J.)
entering judgment for the defendant, John J. Ingalls, Jr., trustee of the J and L
Ingalls Family Revocable Trust of 2004, and awarding him $151,650.38 in
damages. We affirm.

The trial court found the following facts. The parties are in a joint
venture to develop land in Kingston into a residential subdivision. Under their
agreement, the parties were required to combine their adjacent real estate and
then subdivide the combined parcel into six lots to become Phase 1 of the
development. The plaintiffs were to get three of the six lots and the defendant
was to get the remaining three lots. The parties borrowed money to bond the
road. As the parcels were developed and sold, the proceeds were to be paid out
as set forth in the parties’ agreement. Under the agreement, some of the
proceeds were to be used to pay off the road bond, some would go to the lot
owner, and the rest would pay any construction loan and/or pay whoever acted
as the builder on that lot.

The plaintiffs sued the defendant in 2019, alleging that he owed them
$104,000. The defendant counterclaimed, alleging that he should be
reimbursed for certain expenses he paid on the plaintiffs’ behalf. As the case
proceeded to trial, each side was arguing that the other had been overpaid and
asked the court to make a monetary award in their favor.

In reviewing damage awards following a bench trial, we view the evidence
in the light most favorable to the prevailing party, here the defendant. See T &
M Assocs. v. Goodrich, 150 N.H. 161, 164 (2003). We will overturn a damage
award only if we find it to be clearly erroneous. Id. New Hampshire law does
not require mathematical certainty in computing damages. Id. The law does,
however, require an indication that the award of damages was reasonable. Id.
“[T]he goal of damages in actions for breach of contract is to put the non-
breaching party in the same position it would have been in if the contract had
been fully performed.” Robert E. Tardiff, Inc. v. Twin Oaks Realty Trust, 130
N.H. 673, 677 (1988) (quotations omitted).

The sole issue on appeal is whether the trial court committed plain error
by awarding the defendant $151,650.38 in damages when, according to the
plaintiffs, his counterclaim was for only $10,000 in real estate taxes he had
paid on their behalf. See Sup. Ct. R. 16-A. The plaintiffs argue that “[b]ecause
this contest began with a counterclaim giving notice of the Defendant’s request
for $10,000 in real estate tax overpayments, the $150,000+ damages awarded
for other contract damages―—with no [correlative] findings―—constitutes plain
error that renders the proceedings grossly unfair to [the plaintiffs].”

The defendant counters that, under New Hampshire’s liberal approach to
pleading, the trial court reasonably considered his pretrial statement and
itemized list of damages, among other pleadings, when calculating the damage
award. The defendant also correctly observes that, at the close of evidence, the
trial court

discussed with the parties the issues it had to decide in the case
which included who was responsible for the variable closing costs
on sale, whether the [parties] share $125,000.00 per lot net of
closing costs or not net of those costs, how the money was
allocated, the status of the road bond[] and who is entitled to that
money, the relation of the cul-de-sac with phase 2, the reduction
from $50,000 to $25,000 in the re-stated Agreement, expenses and
responsibilities prior to closing, property taxes on the lots, and
some payments [the defendant] believes he made [on the plaintiffs’]
behalf.

When asked by the trial court whether the court had “miss[ed] something
obvious” with regard to the “major dollar items” that would “frame the result,”
the plaintiffs’ representative told the trial court, “I think you pretty much
covered it all.” Based upon this record, the defendant contends that the
damage award does not constitute plain error.

The plain error rule allows us to consider errors not brought to the
attention of the trial court. Clark & Lavey Benefits Solutions v. Educ. Dev.
Ctr., 157 N.H. 220, 225 (2008). “However, the rule should be used sparingly,
its use limited to those circumstances in which a miscarriage of justice would
otherwise result.” Id. “For us to find error under the rule: (1) there must be an
error; (2) the error must be plain; (3) the error must affect substantial rights;
and (4) the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation omitted).

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 As the appealing parties, the plaintiffs have 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 narrative order, the plaintiffs’
challenges to it, the relevant law, and the record submitted on appeal, we
conclude that the plaintiffs have not demonstrated reversible error. See id.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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