Mary D. Pearce v. Robert Coviello & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0584, Mary D. Pearce v. Robert Coviello &
a., the court on December 28, 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 plaintiff, Mary D. Pearce, appeals an order of the
Superior Court (Ignatius, J.), granting summary judgment in favor of the
defendants, Robert Coviello and Maria Coviello, on her claim seeking specific
performance of the sale of property pursuant to a right of first refusal
contained within the deed to the property. In granting summary judgment, the
trial court reasoned that the deed unambiguously created a collective right of
first refusal in “Arthur and Mary Pearce,” the original grantors of the property,
for the duration of “the lifetime of said Arthur and Mary Pearce,” rather than
individual rights of first refusal in both Arthur Pearce and Mary Pearce, and
that, upon the death of Arthur Pearce, the right expired as a matter of law. The
trial court further reasoned that, because the right of first refusal language is
unambiguous, extrinsic evidence could not contradict the unambiguous
language of the deed. See Carter Country Club v. Carter Community Bldg.
Ass’n, 174 N.H. 686, 691, 696 (2021). The plaintiff challenges these rulings.

The relevant deed provision states:

Conveyance of [the] lot is subject to a right of first refusal to Arthur
and Mary Pearce, as follows: In the event that the grantees or their
successors shall desire, during the lifetime of said Arthur and
Mary Pearce (“Pearce”), to sell the premises described herein they
shall so notify them in writing, certified mail, postage pre-paid, at
[certain addresses]. Notification shall include the proposed
purchase and sales agreement or other document stating the sales
price, names and addresses of the proposed buyers, and all of the
other bona-fide terms and conditions of the proposed sale. Pearce
shall then have sixty (60) days to notify grantees or their
successors of their intent to purchase the premises under the
same terms and conditions. In no event shall Pearce have less
than thirty (30) additional days after receipt of their notification to
grantees or their successors of their intent to purchase, in which to
close the transaction. In the event that Pearce does not exercise
their right of first refusal then the grantees or their successors may
proceed with the original sale, if and only, if, said sale conforms to
the terms and conditions as provided to Pearce. This right of first
 refusal shall not apply to bona-fide mortgages and foreclosures
thereof except to the extent that the mortgagees shall forward to
Pearce such notices as are required by New Hampshire RSA 479 as
it may be amended from time to time.

A deed provision is ambiguous if the parties could reasonably disagree as
to its meaning. Carter Country Club, 174 N.H. at 691. Whether a deed is
ambiguous is a question of law. See id. (stating that the interpretation of a
deed is a question of law); Galloway v. Chicago-Soft, 142 N.H. 752, 756 (1998)
(stating that whether a contract term is ambiguous “is a question of law for this
court to decide”). Here, we conclude that the deed could reasonably be
understood to have provided both grantors an individual right of first refusal
that would survive the death of the other grantor. Cf. Glick v. Chocurua
Forestlands Ltd. P’ship, 157 N.H. 240, 242 (2008) (observing that, with respect
to rights of first refusal over certain lots granted by the defendant to the
plaintiff and his then-spouse, the interests of the plaintiff’s spouse were
subsequently transferred to the plaintiff in their divorce); First Illinois Nat.
Bank v. Knapp, 615 N.E.2d 75, 76, 79 (Ill. Ct. App. 1993) (finding that
provision of a deed in lieu of foreclosure agreement granting “borrowers” a right
of first refusal with respect to property conveyed to the lender was ambiguous
as to whether the right could be exercised by any one of the borrowers, or
whether the “borrowers” were required to exercise the right as a group).
Accordingly, the deed is ambiguous as a matter of law. We reverse the trial
court’s grant of summary judgment, and remand for further proceedings
consistent with this order.

Reversed and remanded.

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

Timothy A. Gudas,
Clerk

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