J&C Properties v. Rayster Realty

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers
are requested to notify the Reporter, Supreme Court of New Hampshire, One
Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in
order that corrections may be made before the opinion goes to press. Errors
may be reported by email at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court’s home page is:
https://www.courts.nh.gov/our-courts/supreme-court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2024-0560
Citation: J&C Properties v. Rayster Realty, 2026 N.H. 12

J&C PROPERTIES, LLC

v.

RAYSTER REALTY, LLC

Argued: November 12, 2025
Opinion Issued: April 2, 2026

Joshua L. Gordon, of Concord, on the brief and orally, for the plaintiff.

Cleveland, Waters and Bass, P.A., of Concord (Jeffrey C. Christensen on
the brief and orally), for the defendant.

DONOVAN, J.

¶1 This case arises from the failed purchase and sale of an apartment
complex. Following a trial in Superior Court (Delker, J.), the jury found the
defendant, Rayster Realty, LLC (seller), liable for breach of the purchase and
sale contract (P&S). The trial court awarded specific performance to the
plaintiff, J&C Properties, LLC (buyer).

2
[¶2] On appeal, the seller argues, among other things, that the court
erred by: (1) denying the seller’s motion for partial summary judgment; (2)
admitting certain oral conversations between the parties; and (3) granting the
buyer’s request for specific performance. We affirm.

I. Facts

¶3 The jury could have found, or the record otherwise supports, the
following facts. The seller owns a twelve-unit apartment complex at Beech and
Silver Streets in Manchester. In late September 2021, the parties signed the
P&S for the property’s sale at a price of $1.3 million, with the closing to occur
“[o]n or before November 30th, 2021.”

¶4 The P&S included a financing contingency that required the buyer to
provide the seller with a written financing commitment by November 26, 2021,
or evidence of the buyer’s inability to secure financing. The contingency stated
that “TIME IS OF THE ESSENCE” and that, if the buyer failed to meet this
deadline, the seller could declare the buyer in default of the P&S or,
alternatively, “[t]reat[] the financing contingency as having been waived by” the
buyer. The contingency further provided that if the seller deemed the buyer to
have waived the contingency and the buyer subsequently did “not close in a
timely manner,” the seller could then declare the buyer in default. Declaring
the buyer in default at either stage — upon a financing delay or due to the
buyer’s failure to timely close — would permit the seller to terminate the P&S,
keep all deposits, and return the property to the market for sale or retain it.

¶5 In late October 2021, the buyer’s bank approved financing,
conditioned on an appraisal of the property. However, the bank also notified
Jeff Duchesne, the buyer’s co-owner, that the appraisal would likely be
delayed.

¶6 On November 2, Duchesne contacted Robert Camann, the seller’s co-
owner, by phone to inform him that the bank had conditionally approved a
loan, but the appraisal would cause a delay in finalizing the financing.
Duchesne testified that, based upon the November 2 conversation, he
understood that the seller was “fine with” delaying the financing deadline. On
the same date, Duchesne also sent the seller a proposed written addendum
extending the financing deadline to December 10, which the seller did not sign.
The buyer did not send a written financing commitment or evidence of its
inability to obtain financing to the seller by November 26.

¶7 On November 29, Steve April, the seller’s other co-owner, emailed
Duchesne regarding the property’s certificate of compliance and application
and inspection fees. That same day, April and Duchesne met to close on
another property, during which they discussed the property at Beech and
Silver Streets and orally agreed to close in December.

3
[¶8] That afternoon, Donna Podd, a paralegal at the closing agent,
emailed April and Camann to schedule the closing. Camann replied by email,
“12-9 works best for me.” On November 30, after conferring separately with
the buyer and seller, Podd emailed Duchesne, Camann, and April to “confirm
our closing scheduled for 12/10 at 10:00 am here at our office.”

¶9 On November 29 and 30, Duchesne emailed Camann and April
proposed addenda to the P&S that would extend the financing deadline and
closing date to dates in December. The seller did not sign the addenda.

¶10 On December 3, April emailed Duchesne to terminate the P&S.
Specifically, he wrote: “[W]ith respect to the extension for Beech & Silver,
[Camann] and I have decided to hit the pause button on this deal . . . . We do
not see ourselves extending this deadline or closing on [December] 10th at this
point.” The next day, Camann emailed Duchesne: “I do not want to sell and
[April] feels as though we are under valuating ourselves. Obviously we will give
you guys back your deposit money asap.” Around this time, Camann phoned
Duchesne and apologized for having the deal fall apart.

¶11 The parties did not close on the property, and on December 10, the
buyer sued the seller for specific performance of the P&S. The seller
counterclaimed and moved for partial summary judgment. As relevant to this
appeal, it asserted that: (1) the buyer had breached the P&S by missing the
financing deadline; and (2) this breach entitled the seller to terminate the P&S.
The trial court denied the seller’s motion for partial summary judgment.

¶12 Before trial, the seller moved in limine to preclude: (1) evidence of
the seller’s oral communications with Duchesne or Podd; (2) documents from
the closing agent that the buyer produced approximately one month before
trial, over a year after the close of discovery; and (3) the closing agent’s emails
with the parties. The court denied the seller’s first two motions and deferred
ruling on the third until trial. At trial, it admitted the closing agent’s emails.

¶13 The jury returned a verdict in the buyer’s favor, finding that: (1) the
buyer did not materially breach the P&S; (2) the parties agreed to extend the
closing date beyond November 30, 2021; and (3) the seller materially breached
the P&S. After considering the parties’ memoranda regarding the buyer’s
requested remedy, the court granted the buyer specific performance and
ordered the parties to close on the property within thirty days, consistent with
the terms of the P&S. This appeal followed.

4
II. Analysis

A. Summary Judgment

¶14 We first address the seller’s appeal of the trial court’s order denying
its motion for partial summary judgment. The seller asserts that the trial court
erred by concluding that a material factual dispute — whether the seller
treated the P&S’s financing contingency as waived after the buyer missed the
financing deadline — precluded summary judgment. The buyer does not argue
that we should decline to review the trial court’s denial of summary judgment,
given that there has been a full trial on the merits. See Lama v. Borras, 16
F.3d 473, 476 n.5 (1st Cir. 1994) (stating that federal appeals court would not
review “the propriety of the denial of summary judgment” that “ha[d] been
overtaken by subsequent events, namely, a full-dress trial and an adverse jury
verdict”). Therefore, we assume, without deciding, that this issue is reviewable.

¶15 “To obtain summary judgment, the moving party must 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.’” O’Malley-Joyce v. Travelers Home &
Marine Ins. Co., 175 N.H. 245, 250 (2022) (quoting RSA 491:8-a, III (2010)).
“An issue of fact is material if it affects the outcome of the litigation.” Porter v.
City of Manchester, 155 N.H. 149, 153 (2007). When reviewing a denial of
summary judgment, “we consider the affidavits and other evidence, and all
inferences properly drawn from them, in the light most favorable to the non-
moving party.” Id. “If no genuine issue of material fact existed, and the moving
party was entitled to judgment as a matter of law, then summary judgment
should have been granted.” Id. “We review the trial court’s application of the
law to the facts de novo.” Robinson v. 1 Bouchard Street Realty, 177 N.H. 59,
61 (2024), 2024 N.H. 59, ¶6.

¶16 Pursuant to the financing contingency’s terms, once the buyer
missed the November 26 deadline, the seller had “the option of either: (a)
Declaring BUYER in default of this Agreement; or (b) Treating the financing
contingency as having been waived by BUYER.” In its summary judgment
order, the trial court determined that the buyer failed to meet the November 26
financing deadline, but that the parties’ subsequent emails on November 29
and 30 “support[ed] the conclusion that the parties were operating as if . . . the
financing contingency had been waived.” As the court noted, this conduct
conflicted with the seller’s assertion that its cancellation of the P&S on
December 3 was a declaration of the buyer’s default pursuant to the
contingency. The court thus found that a “material factual dispute as to
whether the [seller] deemed the [buyer] to have defaulted or to have waived the
financing contingency” precluded summary judgment.

¶17 On appeal, the seller argues that waiver of a contractual right
requires “a clear expression of intent to waive the right,” and that here, there

5
was no writing in which the seller agreed to waive the contingency or its
deadline. (Quoting Pine Gravel, Inc. v. Cianchette d/b/a Site Prep., 128 N.H.
460, 465 (1986)). The buyer counters that the seller’s conduct and
communications with the buyer and the closing agent after November 26
constituted a waiver of the financing deadline.1

¶18 “[A] waiver is the voluntary or intentional abandonment or
relinquishment of a known right.” Private Jet Servs. Grp. v. Tauck, Inc., 176
N.H. 553, 557-58 (2024), 2024 N.H. 20, ¶12. For example, in the context of
contractual rights, “[w]hen a provision is placed in a contract for a party’s
benefit, that party may waive the beneficial provision and proceed with his
performance under the contract.” Leavitt v. Fowler, 118 N.H. 541, 544 (1978).
“A waiver may be based upon an intention expressed in explicit language or
upon conduct under the circumstances justifying an inference of a
relinquishment of a known right.” Private Jet Servs. Grp., 176 N.H. at 558,
2024 N.H. 20, ¶12. Nonetheless, “a clear expression of intent to waive the right
must exist.” Pine Gravel, Inc., 128 N.H. at 465.

¶19 The factual dispute found by the trial court concerned “whether the
[seller] deemed the [buyer] to have . . . waived the financing contingency” after
the buyer missed the November 26 deadline. The seller’s “[t]reating the
financing contingency as having been waived” would constitute a waiver of its
option, under the terms of the P&S, to instead declare the buyer in default.
Thus, the question before us is whether the trial court could properly have
concluded that the seller’s “conduct under the circumstances justif[ied] an
inference” that it waived its contractual right to declare the buyer in default,
notwithstanding the lack of any express waiver. See Private Jet Servs. Grp.,
176 N.H. at 558, 2024 N.H. 20, ¶12.

¶20 The financing contingency granted two options to the seller if the
buyer failed to meet the November 26 deadline. The P&S’s use of the phrase
“[t]reating the financing contingency as having been waived” expressly
contemplated that the seller could manifest its decision to exercise this option
through conduct alone. (Emphasis added.) Under these circumstances, the
court could properly have found that the seller’s emails discussing closing

1 The buyer also asserts that the seller did not preserve its arguments regarding the buyer’s
failure to meet the financing contingency’s deadline. We construe the buyer’s argument as
contending that the seller’s claims regarding the contingency are unpreserved because: (1) the
seller’s counterclaim did not sufficiently raise them; or (2) the seller did not confront the buyer
regarding its failure to meet the November 26 deadline before the buyer sued. “Generally, we do
not consider issues raised on appeal that were not presented to the trial court.” State v. Batista-
Salva, 171 N.H. 818, 822 (2019) (describing preservation requirement). The seller raised its
arguments pertaining to the contingency’s deadline in its counterclaim, its motion for partial
summary judgment, its motion in limine to exclude its oral communications, and during trial in
its motion for a directed verdict. Thus, the trial court had ample opportunity to consider these
arguments, and we reject the buyer’s contention that the seller failed to preserve them.

6
preparations, sent on November 29 and 30 after the buyer missed the financing
deadline, constituted conduct waiving its option to declare the buyer in default.
See id.; Pine Gravel, Inc., 128 N.H. at 465. Accordingly, the trial court properly
determined that the seller’s conduct after November 26 gave rise to a material
factual dispute that precluded summary judgment. We thus affirm the trial
court’s denial of partial summary judgment to the seller.

B. Statute of Frauds

¶21 Next, the seller contends that because there was no writing in
which the seller agreed to modify the P&S’s financing contingency, the trial
court erred under the statute of frauds by admitting oral communications at
trial that suggested the seller’s consent to extend or waive the November 26
financing deadline. Conversely, the buyer maintains that the parties orally
extended the financing deadline. It argues that, even if a writing was necessary
to prove this agreed-upon change, the buyer partially performed the P&S in
reliance on the parties’ oral modification.

¶22 “We will uphold a trial court’s decision to admit evidence absent an
unsustainable exercise of discretion.” Barking Dog v. Citizens Ins. Co. of
America, 164 N.H. 80, 86 (2012). When applying our unsustainable exercise of
discretion standard of review, “we determine only whether the record
establishes an objective basis sufficient to sustain the discretionary judgment
made.” Stachulski v. Apple New England, LLC, 171 N.H. 158, 164 (2018).
“[O]ur task is not to determine whether we would have found differently, but
only to determine whether a reasonable person could have reached the same
decision as the trial court on the basis of the evidence before it.” Id.

¶23 Whether the statute of frauds applies to an agreement “is a
question of law that we review de novo,” Byblos Corp. v. Salem Farm Realty
Trust, 141 N.H. 726, 729 (1997), while “[w]hether an agreement complies with
the statute of frauds is a mixed question of law and fact,” Tsiatsios v. Tsiatsios, 140 N.H. 173, 176 (1995). The statute of frauds provides: “No action shall be
maintained upon a contract for the sale of land unless the agreement upon
which it is brought, or some memorandum thereof, is in writing and signed by
the party to be charged, or by some person authorized by him in writing.” RSA
506:1 (2010). “To satisfy the statute of frauds, the writing must express the
essential terms of the contract.” Greene v. McLeod, 156 N.H. 724, 727 (2008)
(quotation omitted). “These terms include: the purchase price, the identity of
the parties, and a description of the real estate in question.” Id.

¶24 “In addition, it is well settled that a real estate contract can be
modified only by a subsequent writing or other equitable circumstances.”
Cowern v. Norris, 137 N.H. 719, 722 (1993). Notably, we have required a
“writing or other equitable circumstances,” id., to modify a term appearing in
the parties’ written contract even where the altered term was not “essential”

7
under Greene. For example, in Cowern, we concluded that a modification to a
real estate contract’s financing contingency was subject to the statute of
frauds. Cowern, 137 N.H. at 722-23 (rejecting buyers’ argument that their
notification to sellers of their need for an equity loan modified the contingency).
Similarly, in Langdon v. Sibley, we determined that, due to the statute of
frauds, a home sale contract could not be modified to waive a term requiring
third-party consent merely through the parties’ conduct. Langdon v. Sibley, 100 N.H. 373, 376 (1956).

¶25 Thus, whether the statute of frauds bars evidence of the seller’s
oral communications suggesting its consent to extend or waive the November
26 financing deadline depends on whether these communications modified the
P&S’s deadline. Even where the statute would ordinarily apply, however, the
“part performance doctrine . . . effectively withdraws [an agreement] from the
operation of the statute of frauds when application of the statute would result
in fraud or irreparable injury on the purchaser who has performed his part of
the agreement.” Greene, 156 N.H. at 728 (quotations and citations omitted).

¶26 The seller challenges, as barred under the statute of frauds, the
admission of testimony regarding: (1) Camann’s phone call with Duchesne on
November 2, in which Camann purportedly agreed to a delay in financing; and
(2) April’s conversation with Duchesne on November 29 and Camann’s
conversation with Podd on November 30 about scheduling a closing date in
December. We first address the November 2 phone call. The buyer argues
that, even if this phone call modified the financing contingency, the buyer’s
partial performance of the P&S should exempt this oral conversation from the
statute of frauds. We agree with the buyer.

¶27 Under the part performance doctrine, an oral agreement pertaining
to the sale of real estate is enforceable “where the purchaser has proceeded,
either in performance or pursuance of the contract, so far to alter his or her
position as to incur an unjust injury and loss.” Id. (quotation omitted). “When
a contract required by statute to be in writing has been orally modified and the
plaintiff has performed it, or has taken action in reliance on it, as thus
modified, the modification has been sustained when carried into effect.”
Warren v. Dodge, 83 N.H. 47, 49 (1927). In these situations, “[i]t is not the
enforcement of the oral agreement that is sought, but a legal excuse for non-
compliance with the terms of the written contract that is claimed.” Id. at 49-
50. Thus, “an oral extension of time given and acted upon is a legal equivalent
for compliance with the terms of a written contract as to time.” Id. at 51. “A
party to a purchase and sale agreement who consents to a postponement of the
time for performance and induces the other party to act upon the consent
cannot claim default . . . . This is true even when time has been made of the
essence.” Bower v. Davis & Symonds Lumber Co., 119 N.H. 605, 608 (1979).

8
[¶28] Following the November 2 phone call, Duchesne corresponded with
the seller and the appraisers to schedule the appraisal necessary to finalize
financing. He also discussed other details of the sale with the seller and
conferred with Podd to arrange the closing. In rebutting the buyer’s partial
performance argument, the seller contends that Duchesne would have needed
to take these actions even under the original P&S. The record reflects,
however, that the buyer worked to secure the appraisal and close on the
property even with the knowledge that the financing would not be finalized
until after the deadline. The buyer’s actions thus constitute sufficient partial
performance to justify admitting evidence of the “oral extension of time”
granted during the parties’ November 2 phone call. Warren, 83 N.H. at 51; see
Bower, 119 N.H. at 608.

¶29 As for the seller’s conversations with Duchesne and Podd on
November 29 and 30 seeking to schedule the closing, the determinative issue is
whether these oral communications modified the P&S’s financing contingency.
A contractual modification entails “either an express or implied mutual
agreement between the parties.” Guaraldi v. Trans-Lease Group, 136 N.H. 457,
460-61 (1992). “It is a fundamental principle of contract law that one party to
a contract cannot alter its terms without the assent of the other party; the
minds of the parties must meet as to the proposed modification.” Id.

¶30 As previously discussed, evidence of the seller’s communications
after November 26 about the P&S could prove that, pursuant to the P&S’s
terms, the seller deemed the buyer to have waived the contingency by its failure
to meet the financing deadline. The seller’s conduct in considering the buyer to
have waived the contingency would necessarily “waive” the November 26
financing deadline, because the buyer would no longer have to meet that
deadline.

¶31 Such a deadline “waiver” — resulting from the seller’s decision that
the buyer had waived the contingency, pursuant to the contingency’s
stipulations — would fall within the original contract’s scope. Cowern and
Langdon are inapposite, because neither case involved a contract with express
terms providing for a change to the terms of the contract. See Cowern, 137
N.H. at 721, 722-23; Langdon, 100 N.H. at 376. Further, the seller’s unilateral
decision to treat the contingency as waived by the buyer would not involve the
“express or implied mutual agreement between the parties” that is necessary to
produce a contract modification. See Guaraldi, 136 N.H. at 460.

¶32 Accordingly, the seller’s oral communications after November 26
about scheduling a closing date would not constitute a modification of the
P&S’s financing contingency. Consequently, the statute of frauds would also
not bar these communications. We thus affirm the trial court’s order denying
the seller’s motion in limine to exclude its oral communications.

9
C. Specific Performance

¶33 Finally, the seller argues that the trial court erred by awarding the
buyer specific performance, rather than monetary damages. “The granting of
specific performance of a contract is a matter within the sound discretion of the
trial court, which bases its decision upon consideration of all of the
circumstances of the case.” Atlantic Restaurant Mgt. Corp. v. Munro, 130 N.H.
460, 463 (1988). “We will uphold a decree of specific performance unless it is
unsupported by the evidence or based upon untenable grounds.” Id.

¶34 In general, following a breach of a contract, “specific performance
will be denied if the plaintiff has an adequate remedy at law.” Tuttle v. Palmer, 117 N.H. 477, 478 (1977). However, “[i]n contracts for the sale of land, the
inadequacy of the legal remedy is well settled, and specific performance will be
decreed absent circumstances rendering it inequitable or impossible to do so.”
Atlantic Restaurant Mgt. Corp., 130 N.H. at 463. This conclusion is based
upon the premise that “the unique character of real estate makes the damages
for breach of contract irreparable as a matter of law.” Moore v. Sterling Warner
Indus. Inv. Corp., 114 N.H. 520, 522 (1974) (per curiam). “Land is considered
unique, and it is therefore not necessary to submit proof that money damages
would not be an adequate remedy.” 25 S. Williston, Contracts § 67:65 (4th ed.
2019).

¶35 The seller asserts that New Hampshire courts’ inclination to award
specific performance in land sale contracts is ill suited to “modern real estate
investment practices.” It contends that the traditional presumption that a real
estate buyer has no adequate remedy at law, and thus specific performance is
warranted, should not apply to real estate investors like the buyer in this case.
The seller therefore urges this court to require that, to receive specific
performance of a land sale contract, “a buyer must present evidence that it had
a particular liking to the land” that renders a monetary award inadequate, or
the buyer’s damages must be difficult to calculate. The seller submits that
because the buyer in this case sought the property purely as an investment, it
lacked any such “particular liking to the land.” Further, the seller claims, the
trial court could quantify the buyer’s remedy at law: its projected profit from
acquiring the property.

¶36 In its order awarding specific performance to the buyer, the trial
court noted that “there is a presumption in favor of specific performance in
land sale contracts unless such an order would be inequitable or impossible to
perform.” Indeed, we have previously applied this traditional presumption to
affirm an award of specific performance where a corporate buyer sought a lot
for commercial use. See Atlantic Restaurant Mgt. Corp., 130 N.H. at 463.

10
[¶37] We decline to alter our well-established presumption that damages
are an inadequate remedy in land sales.2 As the buyer argues, changing this
longstanding presumption would cast fresh uncertainty over well-established
real estate practice. “The presumption that specific performance will be
ordered as a matter of course following the seller’s breach of a purchase
agreement for real property is a foundational assumption in the real estate
industry and taken into account whenever prospective parties to a contract
negotiate the other terms.” Tanya D. Marsh, Sometimes Blackacre Is a Widget:
Rethinking Commercial Real Estate Contract Remedies, 88 NEB. L. REV. 635,
674 (2010). Thus, altering this presumption would contravene “the
fundamental contract policy of giving effect to the intention of the parties and
their reasonably justified expectations.” Cecere v. Aetna Ins. Co., 145 N.H.
660, 662 (2001). We therefore reject the seller’s argument that monetary
damages suffice because the buyer intended to purchase the property as an
investment.

¶38 Nor has the seller shown that the trial court’s award was
“unsupported by the evidence or based upon untenable grounds.” Atlantic
Restaurant Mgt. Corp., 130 N.H. at 463. To the contrary, in its order awarding
the buyer specific performance, the trial court expressly considered and
explained its reasoning for discounting the seller’s argument that the property
had a “sentimental value” to it. The court observed that the seller, like the
buyer, leased the property to tenants for profit. As further justification to
award specific performance, the court also noted its finding that the seller had
terminated the P&S merely because the contract price no longer appeared
advantageous. We therefore affirm the trial court’s conclusion that “there are
no equitable considerations that would warrant denying the [buyer] specific
performance.”

¶39 The seller asserts other challenges to the trial court’s admission of
evidence and jury instructions. We have considered these remaining
arguments and have concluded that they do not require further discussion.
See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

III. Conclusion

¶40 In summary, we conclude that the parties’ conduct after the buyer
missed the financing contingency’s deadline gave rise to a material factual
dispute as to whether the seller deemed the financing contingency waived,

2 Contrary to the seller’s argument, New Hampshire cases discussing specific performance in the
context of a land sale contract do not uniformly rely on the reasoning in Dow v. Railroad, 67 N.H.
1, 65 (1887). See, e.g., Atlantic Restaurant Mgt. Corp. v. Munro, 130 N.H. 460, 463 (1988).
Further, the discussion in Dow regarding a buyer’s “particular liking to the land,” Dow, 67 N.H. at
65 (quotation omitted), is dicta, because that case did not concern the question of whether
monetary damages would satisfy a buyer for whom the land did not hold a special value. See id.
at 2-5.

11
pursuant to the P&S’s provision allowing the seller to do so once the buyer
missed the deadline. Thus, the trial court properly denied partial summary
judgment to the seller. Further, the court did not err in admitting the parties’
oral communications. Finally, under our longstanding presumption favoring
specific performance following breach of a land sale contract, the trial court
properly awarded specific performance to the buyer.

Affirmed.

MACDONALD, C.J., and COUNTWAY, J., concurred.