James Boyle, Individually and as Trustee of the 150 Greenleaf Avenue Realty Trust v. City of Portsmouth ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2018-0327
JAMES BOYLE, INDIVIDUALLY AND AS TRUSTEE OF THE 150 GREENLEAF
AVENUE REALTY TRUST
v.
CITY OF PORTSMOUTH & a.
Argued: September 25, 2019
Opinion Issued: January 24, 2020
Law Offices of John Kuzinevich, of Duxbury, Massachusetts (John
Kuzinevich on the brief and orally), and Devine, Millimet & Branch, P.A., of
Manchester (Joshua Wyatt and David P. Eby on the brief), for the plaintiff.
Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and
Robert J. Dietel on the brief), and McLane Middleton, P.A., of Manchester
(Bruce W. Felmly and Benjamin B. Folsom on the brief, and Mr. Felmly orally),
for the defendant.
Gordon J. MacDonald, attorney general (Christopher G. Aslin, senior
assistant attorney general, on the memorandum of law and orally), for the
State.
DONOVAN, J. The plaintiff, James Boyle, individually and as Trustee of
the 150 Greenleaf Avenue Realty Trust, appeals, and the defendant, City of
Portsmouth (City), cross-appeals, following a trial in the Superior Court
(Delker, J.) in which the jury awarded damages to Boyle for trespass and
nuisance arising from the City’s sewer line on his property.
On appeal, Boyle contends that the trial court erred in: (1) determining
as a matter of law that the City’s trespass began in 2013; and (2) excluding all
evidence of future lost profits after 2016. The City asserts that the trial court
erred in: (1) permitting Boyle’s lost profits claims to go to the jury and refusing
to set aside the jury’s award; and (2) determining that the City did not have
permanent rights in the sewer line. We affirm the trial court’s ruling that the
City had only a revocable license in the sewer line, reverse, in part, the court’s
rulings concerning the timing of Boyle’s damages, reverse the court’s ruling on
Boyle’s lost profits claim and vacate the jury award, and remand.
I. Factual and Procedural Background
The trial court found, or the record supports, the following facts. In
1967, the State owned the property at issue upon which the New Hampshire
Board of Education (Board) had constructed a vocational school. On November
20, 1967, the Board approved “the request by the Department of Public Works
of the City of Portsmouth to extend a sewer line across the rear of the property
of the Vocational-Technical Institute in Portsmouth.” The State thereafter sold
the property on February 18, 1983, to three New Hampshire residents as
tenants-in-common. On October 21, 1988, the tenants-in-common conveyed
the property to MSM Brothers, Inc. (MSM), and on December 30, 2003, MSM
conveyed the property to Boyle. In 2004, Boyle discovered the sewer line when
he sought to develop the property to add an automobile dealership next to his
existing dealership, Toyota of Portsmouth. Shortly after this discovery, Boyle
contacted the City’s attorney and granted the City permission to keep the sewer
line on his property as the parties attempted to resolve the issue.
In 2010, Boyle sued the City, alleging, among other things, trespass “as a
result of the presence of the sewer line,” and nuisance from the “accumulation
of water” due to the improper maintenance of the sewer line. In 2013, the
parties cross-moved for summary judgment. In its orders, the trial court
determined with respect to the trespass claim that: (1) the City does not have
an easement in the sewer line by estoppel, ratification, or prescription; (2) the
City obtained only a revocable license to install and maintain the sewer line; (3)
as of November 12, 2013, Boyle “unequivocally” revoked the license; (4) the
sewer line is trespassing on Boyle’s property; (5) the City must “either remove
the sewer line or obtain easement rights by eminent domain within a
reasonable time”; (6) the “equities of the present case do not justify”
compensating the City for the cost of removing the sewer line; (7) the City must
provide reasonable compensation to Boyle from November 12, 2013, “until the
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line is removed or easement rights are acquired”; and (8) the amount of
damages is subject to jury trial.
A ten-day jury trial was held in early 2017 on damages for the
trespassing sewer line and on liability and damages for nuisance caused by
water impounded by the sewer line. The jury found that Boyle was entitled to
lost profits for the trespass, that the City created a nuisance due to water on
the property, and that Boyle was also entitled to recover lost profits as a result
of the nuisance. Boyle was awarded $3,570,000 in damages. The trial court
denied the parties’ post-trial motions, and this appeal and cross-appeal
followed.
II. Analysis
A. The Sewer Line
We first address the City’s argument that the trial court erred in
determining that it does not have permanent rights in the sewer line.
Acknowledging that it does not have a recorded easement, the City contends
that it “proved that it has a prescriptive easement” and that it “demonstrated
that it met the criteria for an irrevocable license.” Boyle counters that “the only
evidence in the record” is that the City had permission for the sewer line from
all owners prior to him and, therefore, there “is no evidence [the City] made
adverse claims.” Further, he argues that irrevocable licenses “are not
recognized under New Hampshire law” and that, at most, the City obtained a
revocable license from the Board.
In reviewing the trial court’s 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, and if the moving party is entitled to judgment as a matter of law, we
will affirm the grant of summary judgment. See Conant v. O’Meara, 167 N.H.
644, 648 (2015). We review the trial court’s application of the law to the facts
de novo. Id.
1. Prescriptive Easement
To establish an easement by prescription, the claimant must prove, by a
preponderance of the evidence, twenty years of adverse, continuous, and
uninterrupted use of the land. See Marshall v. Burke, 162 N.H. 560, 564 n.3
(2011); Burke v. Pierro, 159 N.H. 504, 512 (2009) (the adverse, continuous,
and uninterrupted use of the land must be such “so as to give notice to the
owner that an adverse claim was being made to it” (quotation and brackets
omitted)). When use of another’s land begins with permission, it cannot
become adverse in nature without an explicit repudiation of the earlier
permission. See Taylor v. Gerrish, 59 N.H. 569, 571 (1880). The character of
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the use is a question of fact and the burden of proof remains on the claimant.
Gowen v. Swain, 90 N.H. 383, 385-86 (1939).
The City asserts that the trial court erroneously determined that the
prescriptive period did not begin to run until October 21, 1988, when the
State’s grantees — the tenants-in-common — conveyed the property to MSM.
The City argues that the court “misinterpreted RSA 539:6, which prevents
adverse possession as to State-owned lands,” as providing that the prescriptive
period “would not run during the times both that the State and the State’s
initial grantees” owned the property. According to the City, “[p]roperly
construed, the statute prohibits adverse possession from accruing against the
land while it is owned by the State,” but does not “preclude adverse possession
from running on land once it is privately owned.” Therefore, the City asserts,
“the prescriptive period started to run on February 18, 1983” and “ripened
twenty years later on February 18, 2003, well before Boyle’s purchase in
December 2003.” Even assuming, without deciding, that the City’s
interpretation of the statute is correct, there is no evidence in the record that
the City’s use of the land was anything other than permissive until Boyle
revoked permission.
The City also argues that when the trial court found on reconsideration
of its initial summary judgment order that the City has only a revocable
license, it then erroneously “failed to reconsider how that . . . impacted the
permissive-versus-adverse aspect of” the City’s use of the sewer line. The City
asserts that as a matter of law the trial court “should have determined, in light
of its new ruling, that the license was revoked by the conveyance of the
Property from the State to [the tenants-in-common] and the period for
establishing prescriptive rights was running.” However, the burden was on the
City to prove by the balance of probabilities twenty years of adverse,
continuous, uninterrupted use of the land claimed “in such a manner as to
give notice to the record owner that an adverse claim was being made to it.”
Ucietowski v. Novak, 102 N.H. 140, 144 (1959). Again, there is no evidence
that the City’s use of the sewer line was anything but permissive until Boyle
revoked permission. See Taylor, 59 N.H. at 571 (the use having been
commenced under a license, “if the defendants . . . would have had their use[ ]
adverse, they should have done some unequivocal act showing such
intention”). Accordingly, we affirm the trial court’s determination that the City
does not have an easement by prescription.
2. Irrevocable License
The City argued in its motion for summary judgment that its license
became irrevocable upon its expenditure of funds to install the sewer line. The
trial court noted that “[e]arly New Hampshire case law recognized that licenses
could become irrevocable even if they were orally given as long as they were
executed, meaning the licensee detrimentally relied on the permission and
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expended resources in that reliance.” However, as the trial court stated, that
early case law was overruled by Houston v. Laffee, which held that a parol
license could never become an easement because it does not comply with the
Statute of Frauds. See Houston v. Laffee, 46 N.H. 505, 507-08 (1866). The
Houston Court reasoned that to hold otherwise “would be giving to a parol
license the force of a conveyance of a permanent easement in real estate.” Id.
at 507.
On appeal, the City argues that, “to the extent an irrevocable license is
inconsistent with this Court’s case law from the 19th Century, it is time to
revisit the issue” to avoid the “severe damage and unfair impacts by rigid
adherence to the position enunciated in Houston v. Laffee.” Citing case law
from other jurisdictions, the City contends that we should “hold that a license
for the use of land may become irrevocable when a licensee has expended
substantial resources in reliance on the license and when required to prevent
injustice.”
We interpret the City’s argument as a request that we overrule Houston.
“The doctrine of stare decisis demands respect in a society governed by the rule
of law, for when governing legal standards are open to revision in every case,
deciding cases becomes a mere exercise of judicial will with arbitrary and
unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles, 149
N.H. 502, 504 (2003) (quotation omitted). “Thus, when asked to reconsider a
holding, the question is not whether we would decide the issue differently de
novo, but whether the ruling has come to be seen so clearly as error that its
enforcement was for that very reason doomed.” Id. at 504-05 (quotation
omitted). Several factors inform our judgment, including: (1) whether the rule
has proven to be intolerable simply in defying practical workability; (2) whether
the rule is subject to a kind of reliance that would lend a special hardship to
the consequence of overruling; (3) whether related principles of law have so far
developed as to have left the old rule no more than a remnant of abandoned
doctrine; and (4) whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification. Id. at 505.
The City does not address any of these factors, but simply claims that
the law is unfair in this case. In the absence of developed argument, we
decline the City’s request that we “revisit” Houston. Accordingly, we affirm the
trial court’s determination that “[a]bsent a writing that satisfied the Statute of
Frauds,” the City “only obtained a revocable license to use the vocational
school land to erect a sewer line.”
B. Damages
Next, we consider the parties’ arguments concerning damages. Boyle
asserts that the trial court erred in determining that he revoked the City’s
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license in 2013, thereby precluding evidence of damages prior to that date. He
also argues that the court erred in precluding damages after 2016. The City
asserts that the court erred in allowing Boyle’s lost profits claims to go to the
jury and in refusing to set aside or remit the jury’s award.
1. Revocation of the City’s License
On February 7, 2008, Boyle’s attorney sent a letter to the City’s attorney
challenging the City’s “right to have multiple sewer lines on the property
without an easement,” expressing his belief that there is no “justification for
the continued presence of the sewer lines,” and demanding that “the City
immediately remove the sewer lines from the property.” The letter stated
further that, “[s]ince the City has no easement, or permission from the current
owner as it had in the past, . . . it is [Boyle’s] intent to erect suitable barriers to
prevent unauthorized access.” Boyle asserted in his cross-motion for summary
judgment that the 2008 letter constituted a “formal demand” to the City that he
wanted the sewer line removed from his property. The trial court found,
however, that because Boyle had granted permission in 2004 for the sewer line
to remain on his property pending the outcome of the litigation, there was no
trespass.
On November 12, 2013, Boyle sent a letter to the Mayor and City Council
of Portsmouth stating that he “hereby revoke[s] any license for the continued
use or presence of the sewer line from today and through the future” and he
demanded that the City “immediately remove it, failing of which, [he] shall take
steps to have it removed as allowed by law.” The letter further stated that
“[n]othing in this letter is with prejudice to the letter . . . dated February 7,
2008 which revoked all prior permissions for the sewer line, which constitutes
[his] demand for the sewer line to be removed. It is [his] legal position that the
City has been trespassing since that date.” The trial court subsequently
determined that “[a]s of November 12, 2013, Boyle formally revoked permission
to have the sewer line on his property.”
On appeal, Boyle argues that the trial court’s ruling that the 2008 letter
did not constitute a revocation of the City’s license “ignored black letter law on
how a parol license is revoked,” and, consequently, “deprived [him] of an
additional . . . six years of damages.” The City counters that the trial court
correctly determined that Boyle was not entitled to damages for trespass for
any time period prior to 2013, because Boyle had given the City permission to
keep the line on the property “until the parties resolved the matter.”
(Quotation omitted.) The City also asserts that Boyle’s 2008 letter did not
revoke the City’s license because, although the letter “demands that [the City]
remove the Line, it does not state that it is revoking the permission Boyle
previously granted” in 2004 to the City.
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Parol licenses “may be in writing, or verbal; but there is no distinction
between the two, if the writing has not the legal requisites to make it a deed or
grant of real estate.” Blaisdell v. Railroad, 51 N.H. 483, 485 (1871). “The
revocation of a parol license may be in writing, or verbal, or by acts clearly
giving the licensee notice of the licenser’s intention.” Batchelder v. Hubbard,
58 N.H. 269, 269 (1878); see Steinfield v. Monadnock Mills, 81 N.H. 152, 156
(1923) (the plaintiff’s complaints and demands for reparation from flowage on
her land from the defendant’s dam was notice that the plaintiff denied the
defendant any right in the premises, which was sufficient revocation of the
license, if one existed); Hodsdon v. Kennett, 73 N.H. 225, 226 (1905) (the
plaintiff exercised his right of revocation by expressly notifying the defendants
not to cut the wood and timber on his property); Quimby v. Straw, 71 N.H. 160,
162 (1901) (the license from the defendants to the plaintiffs to use stairways
and passageways in the defendants’ building was revocable at the pleasure of
the defendants and they revoked it by erecting a wall); Houston, 46 N.H. at 508
(the defendant “had the right to revoke his license in any way that should be
effectual,” including cutting off a pipe for the purpose of putting an end to the
license).
We agree with Boyle that, as a matter of law, the 2008 letter expressly
revoked all prior permissions and constituted a revocation of the City’s license.
Although the City argues that Boyle’s letter was ineffectual as a revocation
because it did not expressly use the word “revoke,” there is no requirement that
specific language be used, so long as the writing “clearly giv[es] the licensee
notice of the licenser’s intention.” Batchelder, 58 N.H. at 269. To the extent
the City asserts that Boyle’s continued attempts to resolve the sewer line issue
demonstrated that he did not revoke permission, as Boyle explains, he “was not
resorting to self-help and destroying the sewer line as the matter was being
negotiated or determined in the courts” and he should not be penalized “for
reasonably allowing the sewer line to remain on his property pending attempts
at resolution.” Accordingly, we reverse the trial court’s ruling that the effective
date of the trespass began in 2013, rather than in 2008, and remand for
further proceedings consistent with this decision.
2. Lost Profits
The City argues in its cross-appeal that it was error for the trial court to
allow Boyle’s claim for lost profits to go to the jury because there was
insufficient evidence to establish that Boyle’s “hypothetical future dealership”
was “reasonably certain to exist.” (Bolding and capitalization omitted.) Boyle
counters that there was “extensive evidence showing Mr. Boyle had reasonably
certain grounds to develop another operational dealership but for the trespass
and nuisance,” including that “[t]here was hundreds of thousands of dollars of
engineering work,” “State permits were in process,” and Boyle testified “how he
always got the appropriate permits from the City.”
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We review sufficiency of the evidence claims as a matter of law, and
uphold the findings and rulings of the trial court unless they are lacking in
evidential support or tainted by error of law. Tosta v. Bullis, 156 N.H. 763, 767
(2008). When performing this review we accord considerable weight to the trial
court’s judgments on the credibility of witnesses and the weight to be given
testimony. Id.
Prior to trial, the City moved in limine to exclude evidence and claims of
alleged lost profits damages. The City argued, among other things, that Boyle’s
claim for lost profits was too speculative because he “has not . . . obtained
municipal approval to build a dealership on the property,” has not obtained
approval from the State, and does not have any franchise/dealership
agreements in place. Therefore, the City asserted, “there is no evidence upon
which a reasonable jury could calculate lost profits.”
Following a hearing, the trial court determined that “evidence as to the
amount of lost profit damages is only relevant if Boyle successfully establishes
that any amount of claimed profit from a desired second dealership was
‘reasonably certain to result’ but for the City’s alleged conduct” and that there
“are significant factual questions which directly impact the admissibility of this
evidence.” The court identified those questions as including, for example,
“whether Boyle could have gotten a franchise, whether he could have obtained
the necessary permits, [and] the timetable for securing said permits.” The
court, therefore, deferred ruling on the admissibility of expert testimony on lost
profits “pending the admissibility of prima facie evidence at trial that Boyle is
entitled to recover lost profits, generally.”
At trial, Boyle testified about his plans to further develop the
property. His testimony included the following representations: (1) Boyle
submitted development plans to the Portsmouth planning board in 2009, but
shortly thereafter requested that the board postpone site plan review to a time
indefinite; (2) neither the zoning board of appeals nor the planning department
have issued a decision regarding potential permits or variances; (3) Boyle’s
requests for an alteration of terrain permit and wetlands permit from the
Department of Environmental Services for developing in the wetlands are still
pending; (4) Boyle does not have a dealer franchise for a second dealership
because he cannot apply for one until he has permits to build; (5) Boyle has
not secured financing to fund the construction of a second building; (6) Boyle
has not conducted a feasibility study to determine whether he could locate
additional car dealerships on the property; and (6) Boyle never sought a zoning
opinion because he “didn’t see any problem with it” and he “figured he could
get all of [the permits].”
Over the City’s objection, the trial court allowed Boyle’s expert witness on
urban planning to testify, reasoning that the witness could “educate the jury”
8
about the process of going before a local planning board or zoning board of
adjustment and
the jury can then make a conclusion whether it thinks it’s likely
that this project would have made it through that process or not. I
mean that’s the issue. Is it more probable than not that a second
dealership would have succeeded in this process? So, I don’t see
how else you get to the issue of lost profits without that evidence.
Boyle’s urban planning expert testified about the general process by
which an applicant develops a plan and gets it approved by the regulatory
authorities. The witness offered his opinion that “the second dealership
connected to the existing dealership is consistent” with the applicable
regulations in Portsmouth, but testified that Boyle “may need variances from
sideline setback,” “may need a variance from the outdoor storage provisions” of
the zoning ordinance, and “may need a variance from an impervious surface
coverage.” In addition, the witness testified that the Department of
Environmental Services may play a role in Boyle’s effort to obtain approval for a
second dealership because, in his opinion, “a conditional use permit is
probably required.” The witness acknowledged that he has never appeared
before the Portsmouth zoning board of adjustment, planning board, or
conservation commission, and that he never spoke with the Portsmouth city
planner about the development project.
The witness declined to offer any opinion as to whether it is more likely
than not that Boyle’s development would be approved, stating that he was
“certainly not [there] to provide a probability estimate” but was there “to
provide [his] opinion as to the reasonableness of Mr. Boyle’s proposal.” In the
following exchange with the City’s attorney, the witness testified:
Q . . . And you’re not telling this jury, are you, that it is your
opinion that Mr. Boyle will be issued either a planning or a zoning
permit by the adjudicatory bodies, that is, the ZBA and the
planning board, regarding these variances and conditional uses,
are you?
A My testimony is that Mr. Boyle, based on the plan and the
zoning ordinance has applied for a reasonable project, and it’s
reasonable to assume he will get those approvals, yes.
....
Q . . . Are you basing your opinion that you’ve provided on
probabilities or not?
A I am not.
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Q You’re not giving an opinion whether, based on probability, that
the city will grant permits for Mr. Boyle, if you had an opinion
based on probabilities, are you?
A No. Based on reasonableness.
Prior to testimony from Boyle’s expert on the amount of lost profits, the
City renewed its objection to the admission of evidence of lost profits damages,
arguing that Boyle had failed to establish a prima facie case that he could
secure a dealership and secure permits. The City argued that there was “no
affirmative evidence” that Boyle would have secured a dealership franchise
from a manufacturer and “[t]here’s been no showing, no direct or
circumstantial evidence” that Boyle “would have received or not received
permits from the city for the second dealership but for these wetlands.” The
trial court disagreed, ruling that based on the evidence “a jury could conclude
that but for the existence of the sewer line and/or trespassing water on the
property,” Boyle’s plans “would have come to fruition” and he would have
secured a second dealership “that was up and running.” Accordingly, the court
allowed Boyle’s expert on lost profits to testify.
The City moved for a partial directed verdict at the close of Boyle’s case
arguing that Boyle had failed to establish a prima facie case that the wetlands
on the property are the “but for” cause of his inability to get a dealership
because there were conditions irrespective of the wetlands that had to be
satisfied in order for him to get a second dealership. For example, the City
argued that Boyle’s expert testified that “in fact there is a variance for a
setback requirement for any business from a residential district that has to be
met . . . regardless of whether the wetlands are on the property” and, therefore,
Boyle had not set forth a prima facie case. The trial court denied the motion,
stating that because the expert “opined that Mr. Boyle would be able to get the
variances,” the jury could conclude that “‘but for’ the sewer line, this process
would have gone forward and he would have cleared those hurdles.”
To establish a claim for lost profits, the plaintiff must prove both the fact
of lost profits and the amount with reasonable certainty. See Fitz v. Coutinho,
136 N.H. 721, 726 (1993). While “absolute certainty” is not required, Great
Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270, 296 (1992), damages
cannot be awarded for “speculative losses.” Miami Subs Corp. v. Murray
Family Trust and Kenneth Dash Partnership, 142 N.H. 501, 517 (1997)
(quotation omitted). In a tort cause of action,
[o]ne to whom another has tortiously caused harm is entitled to
compensatory damages for the harm if, but only if, he establishes
by proof the extent of the harm and the amount of money
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representing adequate compensation with as much certainty as the
nature of the tort and the circumstances permit.
Clipper Affiliates v. Checovich, 138 N.H. 271, 274 (1994) (quotation and
emphasis omitted).
Thus, to establish the fact of lost profits, Boyle was initially required to
prove that it was reasonably certain he would obtain the necessary permits to
develop a second dealership on the property. See Fitz, 136 N.H. at 726. In
reviewing the sufficiency of the evidence on this issue, we consider cases in the
analogous context of condemnation proceedings where the property’s asserted
highest and best use depends upon the approval of variances or permits for its
development. In condemnation proceedings, “just compensation cannot be
predicated upon potential uses which are speculative and conjectural.” United
States v. 320.0 Acres of Land, More or Less, Etc., 605 F.2d 762, 814 (5th Cir.
1979). Rather, evidence of the specific highest and best use of condemned land
is only relevant if the use is likely to be “reasonably probable” in the reasonably
near future. United States v. 33.92356 Acres of Land, 585 F.3d 1, 7 (1st Cir.
2009).
For example, in United States v. 33.92356 Acres of Land, the property at
issue was zoned for conservation and passive recreation purposes and no other
uses were allowed without a variance or permit. Id. at 3-4. Prior to trial, the
district court granted the government’s motion in limine to exclude the
landowner’s expert’s testimony that the highest and best use of the property
was for the construction of residences and sand extraction, because the
expert’s “opinion, by itself, fails to establish a reasonable probability that the
Planning Board would either change the zoning or grant a variance at any time
in the near future.” Id. at 4-5. The First Circuit affirmed the district court’s
exclusion of the landowner’s highest and best use evidence. Id. at 8-9. The
court noted that the landowner had not spoken to anyone at the zoning board
and had not made any showing that the board “would approve a rezoning,
variance, or permits for residential development or sand extraction on this
land.” Id. at 8. Likewise, in Tennessee Valley Authority v. 1.72 Acres of Land,
821 F.3d 742 (6th Cir. 2016), the landowner testified that in his opinion, the
highest and best use of his property was for a hotel, despite acknowledging
that a hotel was not a permitted or conditional use under the zoning
regulations and that he had not actually sought a rezoning. Id. at 746-47.
Affirming the district court’s determination that the landowner “did not show
any reasonable probability that the property could be rezoned for commercial
use,” the Sixth Circuit noted that the landowner “did not present any evidence
whatsoever suggesting that the [local regulatory authority] would approve a
rezoning, variance, or permits for commercial development on the property.”
Id. at 754.
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Similarly, in the case before us, we agree with the City that Boyle failed
to present sufficient evidence to prove the fact of lost profits with reasonable
certainty. As set forth above, despite acknowledging that Boyle may need
variances unrelated to the underlying trespass and nuisance to further develop
his property, his expert offered no assessment of whether it was “reasonably
certain” Boyle would obtain the necessary regulatory approvals required to add
a second dealership. Although the trial court determined that the expert
needed only to establish whether it was “more probable than not” that Boyle’s
second dealership would be approved by the regulatory authorities, even if we
assume that “more probable than not” satisfies the “reasonable certainty”
standard, the expert expressly testified that he was not giving an opinion based
on probability that the City would grant the necessary permits. See 320.0
Acres of Land, 605 F.2d at 819 n.130 (explaining that, where a use is subject
to local zoning restrictions or to the regulatory authority of other local or state
agencies, a party cannot make out a jury question “simply [by] asserting that a
particular use is reasonably probable, or that there is a reasonable probability
of obtaining a permit; as with all opinion evidence, there must be some
foundation in fact”).1
Furthermore, Boyle’s own testimony highlighted additional requirements
— unrelated to the trespass or nuisance — that needed to be met to develop a
second dealership on the property, including obtaining a dealer franchise and
securing financing to build a second building. The speculative nature of
satisfying these additional criteria further undermines the reasonable certainty
of the fact of lost profits. See Great Lakes, 135 N.H. at 297 (holding that there
was insufficient evidence that lost profits arose from the defendant’s breach of
contract where the realization of the plaintiff’s new business still depended
upon successfully allying potential investors and obtaining sufficient capital
from a bond not within the plaintiff’s direct control).
Based upon our review of the record, we conclude that the trial court
erroneously ruled that Boyle sustained his burden of proving that lost profits
were reasonably certain to exist. Accordingly, we vacate the award of lost
profits damages and remand for further proceedings consistent with this
decision. Given our conclusion, we need not address the City’s argument that
the court erred in refusing to set aside or remit the jury’s award.
1
Although not relevant to our analysis of the trial court’s ruling on the City’s motion for a partial
directed verdict at the conclusion of Boyle’s case, we note that, in its case, the City presented
evidence through the Portsmouth city planner that Boyle’s development project would require
three or four variances from the Portsmouth planning board. This evidence would support the
City’s claim that the trial court erred in denying its motion to set aside the jury award, but we
need not reach this issue in light of our conclusion that Boyle failed to establish a prima facie case
necessary to seek lost profits damages.
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3. Damages After 2016
Boyle argues that the trial court erred in granting the City’s motion to
preclude damages after December 2016. Shortly before the jury trial, the City
exercised its power to take the property at issue by eminent domain. See RSA
498-A:5 (2010). Boyle opposed the taking by filing a preliminary objection, see
RSA 498-A:9-a (2010), and moved to postpone the jury trial in this case or,
alternatively, “combine the trial with the evidentiary hearing on the preliminary
objection in the eminent domain case.” Boyle asserted that “[u]ntil such time
as the preliminary objection is determined and all appeals exhausted, it is
impossible as a matter of law to know the key date to instruct the jury on
damages due to the uncertainty of the effectiveness of the City’s attempts to
take the property” and, thus, “trial will severely prejudice [him] if it occurs prior
to such determination.”
The City moved to preclude at trial evidence of damages after the date of
the taking. Over Boyle’s objection, the trial court granted the motion,
reasoning that the City’s trespass ended when the City exercised its eminent
domain power. The trial court denied Boyle’s motion to postpone the jury trial,
reasoning that if Boyle “is successful on his challenges to the eminent
domain[,] that would only result . . . in an issue impact on the damages in this
case.” Although it noted that the damages issue was “significant,” the court
nonetheless determined that “it’s discreet in the overall scheme of things” and
that “the value of proceeding given the history of this case far outweighs the
costs of further delay.” Accordingly, the trial court precluded evidence of
damages after December 2016.
After filing this appeal, Boyle prevailed on his preliminary objection to
the eminent domain taking following a bench trial in superior court, in which
the court found that the City failed to allege a proper statutory authority to
support the taking. The City appealed that order and today, in a separate
opinion, we affirm the trial court’s ruling on the eminent domain matter. See
City of Portsmouth v. 150 Greenleaf Avenue Realty Trust, ___ N.H. ___ (decided
January 24, 2020).
Boyle asserts that the preclusion of damages after 2016 in the sewer line
litigation was premised on the trial court’s incorrect assumption that the City’s
taking was valid. In light of our affirmance of the ruling that the City’s taking
was illegal, we remand the issue of damages after December 2016 for the trial
court to address in the first instance.
Affirmed in part; vacated in part;
reversed in part; and remanded.
HICKS and BASSETT, JJ., concurred; ABRAMSON and BROWN, JJ.,
retired superior court justices, specially assigned under RSA 490:3, concurred.
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