Tremblay v. Bald

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Coos
Case No. 2023-0022
Citation: Tremblay v. Bald, 2024 N.H. 6

GAIL C. TREMBLAY

v.

ALLAN BALD & a.

Argued: June 22, 2023
Opinion Issued: January 30, 2024

The Crisp Law Firm, PLLC, of Concord (Jack P. Crisp, Jr. on the brief
and orally), for the plaintiff.

Devine, Millimet & Branch, Professional Association, of Manchester
(William F. Gramer on the brief and orally), for the defendants.

MACDONALD, C.J.

¶1 This interlocutory appeal involves the enforceability of agreements
executed by the plaintiff, Gail C. Tremblay, and the decedent, Donald D. Bald,
over the course of their long-term relationship. See Sup. Ct. R. 8. They shared
the same household but were not married. The agreements provide for the
plaintiff to receive certain property if she and the decedent were living together
in the same household at the time of his death. The primary legal issue is
whether the agreements are supported by consideration. The plaintiff argues
that cohabitation constitutes consideration. The defendants, the Estate of
Donald D. Bald and Allan Bald, both in his individual capacity and as
Administrator of the Estate, disagree. On cross-motions for summary
judgment, the Superior Court (Bornstein, J.) denied the plaintiff’s motion and
granted the defendants’ motion. We conclude that the agreements are
enforceable contracts and, therefore, we reverse and remand.

I

¶2 The following facts are undisputed. The plaintiff and the decedent
were in a romantic relationship and lived together for more than ten years
beginning in November 2009. They became engaged on December 31, 2009,
but never married. They remained engaged and continued to live with each
other until the decedent died intestate on July 26, 2020.

¶3 At the time they met, the plaintiff was living at 19 Spruce Street and
the decedent was living at 16 Spruce Street, in Gorham. As the relationship
progressed, the plaintiff moved in with the decedent at 16 Spruce Street. In
December 2009, the decedent purchased the plaintiff’s property at 19 Spruce
Street. On January 1, 2012, they executed a notarized agreement superseding
a prior agreement from December 2009. The January 2012 agreement
provides, in pertinent part:

In the event that [the decedent] passes away and we are living together,
[the plaintiff] will choose to keep, free and clear of any encumbrance,
either the 16 Spruce St. property or the 19 Spruce St. property, including
the contents of her choice; and the choice of two vehicles. This does not
include [the decedent’s] gun collection.

¶4 They subsequently executed two more notarized agreements, each
dated March 30, 2015. One of these agreements provides, in relevant part: “I,
[the decedent], in the event of my death, leave to [the plaintiff] the 2014 Ford
Mustang . . .; as long as we are still living together as an engaged couple.” The
other agreement provides, in relevant part:

I, [the decedent], in the event of my death, leave to [the plaintiff] free and
clear of any encumbrances, the property at 1 Marois Ave, Gorham, NH
(including a garage and park model home); as long as we are still living
together in the same household.

This sheet being the third of three that we, as fiancees, have thus far
completed. There is no Will at this time.

¶5 Approximately six months after the decedent’s death, the plaintiff
brought this action asserting that: (1) the agreements signed by her and the

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decedent are enforceable contracts entitling her to the property described in
the agreements; (2) in the alternative, she is entitled to the property under
theories of promissory estoppel, implied-in-fact contract, or, as to one
particular vehicle, jointly purchased property; and (3) Allan Bald is liable for
certain rents and profits received from the property. The defendants
counterclaimed, seeking unpaid rent from the plaintiff.

¶6 The plaintiff moved for summary judgment on her claim that the
agreements executed by the plaintiff and the decedent are enforceable
contracts. The defendants cross-moved for summary judgment on all of the
plaintiff’s claims. The trial court denied the plaintiff’s motion, finding the
agreements lacked adequate consideration. The trial court granted summary
judgment in favor of the defendants. The trial court subsequently granted the
plaintiff’s motion for interlocutory appeal. The interlocutory appeal statement
raises several questions, but we limit our analysis to the first question because
our answer to it is dispositive: “Did the trial court err in ruling that the signed,
written, and notarized agreements between the Plaintiff and Decedent are not
enforceable for lack of adequate consideration?”

II

¶7 On appeal, the plaintiff asserts that the trial court erred in granting
summary judgment to the defendants on her contract claim. She argues that
the court erroneously determined that the agreements were unenforceable as a
matter of law. The plaintiff further asserts that the court erred in granting the
defendants summary judgment on her other claims as genuine issues of
material fact remain. The defendants maintain that the court’s determinations
were correct because the agreements at issue are not enforceable contracts and
the record failed to support the plaintiff’s other claims. Because we determine
that the agreements are enforceable contracts, we need not address the merits
of the plaintiff’s alternative claims for promissory estoppel, implied contract,
and jointly purchased property.

¶8 A moving party is entitled to summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits filed, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” RSA
491:8-a, III (2010). In reviewing rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Monadnock Reg’l Sch. Dist. v. Monadnock Dist. Educ. Ass’n.,
173 N.H. 411, 416 (2020). We review the trial court’s application of the law to
the facts de novo. Greenwald v. Keating, 172 N.H. 292, 297 (2019).

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 [¶9] A valid, enforceable contract requires offer, acceptance,
consideration, and a meeting of the minds. Tessier v. Rockefeller, 162 N.H.
324, 339 (2011). The defendants do not dispute that the written agreements
here reflect offer, acceptance, and a meeting of the minds. The parties
disagree, however, on whether the agreements are supported by consideration.
The plaintiff argues that her continued cohabitation with the decedent is the
consideration for the agreements. The defendants argue the agreements are
unsupported by consideration because: (1) the plaintiff and the decedent were
already living together at the time the agreements were executed; (2) either
party could have ended the relationship at any time; and (3) the agreements fail
to recite any consideration. We agree with the plaintiff.

¶10 Consideration is essential to all contracts. Chasan v. Village
District of Eastman, 128 N.H. 807, 816 (1986) (citing Lang v. Johnson, 24 N.H.
302, 307 (1851)). Consideration “is the foundation upon which all legal
agreements and undertakings rest.” Lang, 24 N.H. at 307. Further:

Without a good consideration a contract is a mere nudum pactum, not
binding in law, however it may be in conscience, and cannot be enforced.
The price that is paid, or the motive of the contract, which goes to form
and make up the consideration, must also be in itself lawful, or else the
contract is void.

Id. Here, the parties clearly recited the exchange: certain property would
transfer provided the plaintiff and the decedent were still living together at the
time of the decedent’s death. On this point — whether continued cohabitation
by adults is lawful consideration — we do not write on a blank slate. We
contemplated such agreements in Joan S. v. John S., 121 N.H. 96 (1981). In
that case, the parties lived together, unmarried, for about fifteen years,
accumulating property and raising their children. Id. at 97. We rejected the
plaintiff’s request “to apply a divorce-like property settlement” between the
parties as “[t]he right to a divorce is predicated upon the existence of a valid
marriage between the parties.” Id. at 99. We clarified that “[o]ur refusal to
apply RSA [chapter] 458 to the dissolution of non-marital living arrangements
does not, however, prevent equitable adjustment of the rights of the parties.”
Id. Although the plaintiff in Joan S. failed to adequately raise a contract
theory, we observed that “a court will enforce an action in contract, if one can
be shown to exist, to the extent that it is not founded upon the consideration of
meretricious sexual relations.” Id. (citing Marvin v. Marvin, 557 P.2d 106, 110
(Cal. 1976)). By their plain language, the agreements in this case were solely
founded upon the plaintiff’s continued cohabitation with the decedent. As
such, the agreements are of the sort contemplated by Joan S. See id.; see also
Marvin, 557 P.2d at 116 (“So long as the agreement does not rest upon illicit
meretricious consideration, the parties may order their economic affairs as they
choose, and no policy precludes the courts from enforcing such agreements.”).

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 [¶11] The defendants argue that the agreements lacked consideration, in
part, because the plaintiff and the decedent were already living together at the
time the agreements were executed. Specifically, they argue that the plaintiff
was not induced into living, or continuing to live, with the decedent because of
the agreements. We disagree.

¶12 Consideration is present if there is either a benefit to the promisor
or a detriment to the promisee. Chisholm v. Ultima Nashua Indus. Corp., 150
N.H. 141, 145 (2003). “The law does not undertake to measure the adequacy of
the consideration for a contract or agreement.” Probate v. Adams, 49 N.H. 150,
154 (1869). “The slightest benefit conferred upon the one party, or the
slightest loss or inconvenience sustained by the other, is sufficient.” Id.

¶13 The agreements meet this test. The plaintiff’s continued
cohabitation amounted to a benefit to the decedent, as promisor. It served as a
benefit to the decedent because, as the agreements plainly reflect, he desired
that the plaintiff continue to live with him. Thus, the agreements reflect a
bargained-for exchange: that the decedent would leave certain property to the
plaintiff if she continued to live with him until his death. See Panto v. Moore
Business Forms, Inc., 130 N.H. 730, 740 (1988) (stating that a bargained-for
exchange “means simply that the promisor must manifest an intent to induce a
promise or performance and the promisee must manifest a corresponding
intention”).

¶14 The defendants argue that the decedent made no promise as he
was free to end the relationship at any time. We are unpersuaded. The
defendants point to the Restatement of Contracts, which states: “Words of
promise which by their terms make performance entirely optional with the
‘promisor’ do not constitute a promise.” Restatement (Second) of Contracts §
77 cmt. (a), at 195 (1981). Here, the decedent’s performance was not optional
so long as the contracting parties lived together at the time of his death. That
either party could defeat the condition of the agreements by ending the
relationship prior to the decedent’s death has no bearing on whether, if the
condition were satisfied, the decedent was required to perform. Accordingly,
the “words of promise” in the agreements did not make the decedent’s
performance optional such that he made no promise.

¶15 Finally, the defendants correctly note that the agreements do not
expressly recite any consideration. However, New Hampshire law does not
require consideration to be recited for it to exist. See, e.g., Panto, 130 N.H. at
736 (proof of continued service by employee may demonstrate consideration for
an employer’s promise to pay benefits); Gilman v. County of Cheshire, 126 N.H.
445, 450 (1985) (employee’s continued labor amounted to consideration
sufficient to enforce modified employment terms calling for payments in lieu of
accumulated sick leave). In this case, the consideration supporting the

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agreements, although not specifically labeled, is nonetheless readily
determined from the text of the agreements.

¶16 We hold that the agreements are enforceable as a matter of law
and, therefore, reverse the trial court’s order denying summary judgment to the
plaintiff and granting summary judgment to the defendants. We remand for
further proceedings consistent with this opinion.

Reversed and remanded.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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