Colleen Ann Colton & a. v. Robert Jacobs ( 2024 )


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  •                     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.
    2
    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
    3
    

Document Info

Docket Number: 2023-0033

Filed Date: 2/21/2024

Precedential Status: Non-Precedential

Modified Date: 11/12/2024