Colleen Ann Colton & a. v. Robert Jacobs

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0033, Colleen Ann Colton & a. v. Robert
Jacobs, the court on February 21, 2024, 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, Colleen Ann Colton and Omar Brissett, appeal
an order of the Superior Court (Temple, J.) granting the motion for judgment
notwithstanding the verdict (JNOV) filed by the defendant, Robert Jacobs. The
trial court’s decision vacated a $60,000 jury verdict award in favor of the
plaintiffs upon their claim for negligent misrepresentation. We affirm.

The trial court recited the following facts in its order on the merits and in
its order on the defendant’s motion in limine. Colton began renting an
apartment from the defendant in 2016. The defendant also employed Colton to
perform repair, painting, and maintenance work at his other rental properties.
In 2019, Brissett began cohabiting with Colton. In October of that year, the
plaintiffs asked the defendant for permission to build a garage on the property
where the apartment was located. The defendant gave his permission, and the
parties agreed that the defendant would provide the funds for the materials if
the plaintiffs provided the construction labor. The defendant also promised the
plaintiffs that, after the garage was constructed, he would sell them the
property within twenty-four months and would not sell the property to anyone
else. According to the plaintiffs, the purpose of the twenty-four-month period
was to allow them to secure adequate funding to purchase the property from
the defendant.

The plaintiffs began constructing the garage in November 2019, and they
completed construction between December 2020 and February 2021. The
defendant funded the purchase of all necessary materials. Upon completing
the garage, Colton offered to pay the defendant an additional $200 per month
in rent for the plaintiffs’ use of the garage, but the defendant declined her offer.

In May 2021, the defendant informed the plaintiffs that he intended to
sell the property and asked the plaintiffs whether they wanted to purchase it.
Although the plaintiffs were unable to purchase the property at that time,
Colton reminded the defendant that he had promised to allow the plaintiffs a
period of twenty-four months following the construction of the garage to save
money to purchase the property. In July of that year, the defendant told the
plaintiffs that he no longer intended to sell the property. On July 15, the
defendant and two others broke the lock on the garage door in order to gain
entry into the garage to retrieve some of the defendant’s belongings. Colton
witnessed their entry through a doorbell camera and called the police,
reporting that the defendant was breaking into her rental property. Thereafter,
the plaintiffs’ relationship with the defendant deteriorated. In November, the
plaintiffs notified the defendant of their intent to vacate the property by
December 1.

The plaintiffs subsequently sued the defendant under a variety of
theories, including negligent misrepresentation.1 The plaintiffs’ negligent
misrepresentation claim asserted that the defendant had no intention at the
time the promise was made of fulfilling his promise to sell them the property
within a twenty-four-month period.

In August 2022, the court granted a motion in limine filed by the
defendant, ruling that, because the plaintiffs had not disclosed themselves as
experts, they could not testify as experts regarding the value of their labor. The
court permitted the plaintiffs to testify only as fact witnesses regarding the
construction of the garage. The court also excluded the plaintiffs’ expert
witness from testifying based upon the plaintiffs’ deficient disclosure.

In September 2022, the court held a two-day trial. After the close of
evidence, the defendant moved for a directed verdict. The plaintiffs objected,
and the court deferred its ruling on the motion. The jury subsequently found
that the plaintiffs had proven their negligent misrepresentation claim and
awarded the plaintiffs $60,000 in damages. Following the verdict, the
defendant moved for JNOV on the negligent misrepresentation claim. In
November 2022, the court granted the defendant’s motion, and this appeal
followed.

In its order granting the defendant’s motion for JNOV on the negligent
misrepresentation claim, the trial court ruled that the plaintiffs had failed to
introduce sufficient evidence to prove any recoverable damages. The court
explained that, “even if the Court were to agree that there was sufficient
evidence to support a finding that the defendant had no intention of fulfilling
his promise to the plaintiffs at the time it was made, the plaintiffs nonetheless
failed to present any evidence to support an award of pecuniary damages.” The
court further stated that, “[t]o the extent the plaintiffs’ own time and labor
could even be classified as a ‘pecuniary loss,’ the plaintiffs did not introduce
any records or other evidence to establish with any certainty the amount of
1 The plaintiffs originally brought this action as self-represented parties in July 2021, but they

moved to amend their complaint in September 2021 after retaining counsel. In the amended
complaint, the plaintiffs alleged: (1) unjust enrichment; (2) breach of the covenant of quiet
enjoyment; (3) actual partial eviction; (4) violation of RSA chapter 358-A (2022); and (5) negligent
misrepresentation. The court ruled that the negligent misrepresentation claim was the only claim
the jury could adjudicate, and it is the only claim the plaintiffs address on appeal.

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time it took them to construct the garage.” The court noted that Brissett
testified that the plaintiffs did not track their hours and that any estimation as
to the amount of time they spent constructing the garage was a guess. The
court also relied upon the plaintiffs’ testimony that they did not establish an
hourly rate for their work. Therefore, the court concluded, “there was no
evidence as to the value of the work or that the plaintiffs otherwise incurred a
pecuniary loss as a result of the defendant’s alleged misrepresentation.”

On appeal, the plaintiffs argue that the trial court’s order granting the
defendant’s motion for JNOV is not supported by the evidence at trial. The
plaintiffs assert that there was evidence that they each worked for 1,500 hours
at a rate of twenty dollars an hour, thus supporting the jury’s $60,000 award
in their favor.

The defendant responds that the plaintiffs introduced no evidence that
they incurred a pecuniary loss as a result of the defendant’s alleged negligent
misrepresentation. He argues that the plaintiffs failed to introduce any
evidence concerning either the amount of their expenditures for construction of
the garage or the loss of any wages or profits. Specifically, the defendant relies
on the plaintiffs’ testimony that: (1) they did not keep track of the hours they
spent building the garage; (2) they did not have an hourly rate for their work;
(3) they did not work for an hourly rate because the garage was “beyond the
scope of the hourly work [they] did” for the defendant; and (4) they did not bill
the defendant for their work on the garage. The defendant also cites the
plaintiffs’ testimony that he paid for all materials used to construct the garage.
Therefore, the defendant argues that the trial court’s judgment should be
affirmed because the plaintiffs failed to prove they suffered any pecuniary loss.
We agree.

As the appealing party, 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 order, the plaintiffs’ challenge to it, the
relevant law, and the record submitted on appeal, we conclude that the
plaintiffs have not demonstrated reversible error. See id. We agree with the
defendant that there was insufficient evidence of actual pecuniary loss to
support the jury’s award of damages on the plaintiffs’ claim for negligent
misrepresentation. Accordingly, we affirm the trial court’s order granting the
defendant’s motion for JNOV on the negligent misrepresentation claim.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, DONOVAN, and
COUNTWAY, JJ., concurred.
Timothy A. Gudas,
Clerk

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