STATE OF NEW HAMPSHIRE SUPREME COURT CASE NO. 2009-0628 Michael J. Glick, DDS v. Chocorua Forestlands Limited Partnership and Chocorua Forestlands, LLC v. Michael J. Glick, DDS BRIEF OF APPELLEE MICHAEL J. GLICK, DDS July 6, 2010 MICHAEL J. GLICK, DDS By his attorneys, Charles G. Douglas, III, Esq. (Bar #669) C. Kevin Leonard, Esq. (Bar #10019) DOUGLAS, LEONARD & GARVEY, P.C. 6 Loudon Road, Suite 502 Concord, NH 03301 (603) 224-1988
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 2 SUMMARY OF ARGUMENT... 6 ARGUMENT... 7 CONCLUSION... 16 CERTIFICATE OF SERVICE... 16 REQUEST FOR ORAL ARGUMENT... 16 APPENDIX TABLE OF CONTENTS... 17 i
TABLE OF AUTHORITIES Cases Ahrendt v. Granite Bank, 144 N.H. 308 (1999)... 3, 8 Glick v. Chocorua Forestlands Limited Partnership, 157 N.H. 240 (2008)... passim Merrimack Valley Wood Products v. Near, 152 N.H. 192 (2005)... 8, 10 New Hampshire Donuts, Inc. v. Skipitaris, 129 N.H. 774 (1987)... 15 State v. Abram, 156 N.H. 646 (2008)... 11 Taylor v. Nutting, 133 N.H. 451 (1990).... 10 Williams v. Babcock, 121 N.H. 185 (1981)... 11 ii
STATEMENT OF THE CASE This appeal follows the Supreme Court s remand in Glick v. Chocorua Forestlands Limited Partnership, 157 N.H. 240 (2008) (hereinafter Glick ). In Glick, this Court remanded the matter with a mandate for the trial court to determine whether the purchase price in the real estate P&S Agreement was inflated by Chocorua Forestlands Limited Partnership ( CFLP ). Glick, 157 N.H. at 251 (emphasis added). A 3-day remand trial was held on February 10 and 13 and April 10, 2009, in Carroll County Superior Court (Houran, J.). At trial, three witnesses testified on the issue of the fair market value of the 4 lots at issue: Jeffrey Coombs, CFLP s General Manager, Peter Nault, CFLP s real estate appraiser, and Louis Manias, Dr. Glick s real estate appraiser. During the trial, Dr. Glick filed a motion in limine to exclude the testimony of appraiser Peter Nault, which was denied by the Court. T-III at 546-47. 1 The basis of the motion was that Mr. Nault had no expert opinion on the value of the 4 lots as of November 1998 the operative date when Dr. Glick should have been permitted to exercise his right of first refusal. Glick, 157 N.H. at 252. Under date of July 27, 2009, the trial court issued its Order on the Merits. CFLP App. I at 93. In determining the fair market value of the 4 lots in 1998, the trial court did not accept the valuation of Mr. Coombs because his valuation premise was fundamentally flawed. Id. at 105. At the same time, the Court did not rely on the parties experts opinions on valuation of the lots. Id. at 106 and 107. Instead, following a view and based on the best available evidence, the trial court determined that the fair market value in November 1998 was $125,913. Id. at 109-10. 1 References to the record are the transcript of the bench trial held February 10, 13 and April 10, 2009 ( T followed by volume number) and Dr. Glick s Appendix. 1
The trial court concluded that the purchase price in the P&S Agreement was inflated. Id. at 110. STATEMENT OF THE FACTS The parties are Michael G. Glick, D.D.S. (Dr. Glick) and Chocorua Forestlands Limited Partnership (CFLP). Dr. Glick filed a Petition for Specific Performance compelling [CFLP] to sell him the [4 Masonian lots], at [their] fair market value. Glick App. at 42. In November 1998, Dr. Glick was notified by CFLP s then-attorney, Robert Lloyd, that CFLP had entered into a purchase and sales agreement (P&S Agreement) for the land that was subject to Dr. Glick s right of first refusal. Glick, 157 N.H. at 244. The proposed purchase price was $375,000 for the 4 Masonian lots. Id. The P&S Agreement stated that the 4 Masonian lots contained approximately 375 acres or $1,000 per acre. CFLP App. I at 28 at Request for Finding of Fact Nos. 15 and 18. Leading up to CFLP entering into the P&S Agreement with the purchaser, CFLP s thencounsel, Attorney Lloyd, wrote to the intended purchaser s attorney, Attorney Seitz, that [w]e do not wish to forward the entire [Purchase and Sales] agreement [between CFLP and the Cabot purchasers] [to Dr. Glick], but rather an agreement applicable only to the right of first refusal property. Jeff [Coombs] believes that he can place high enough price on the first refusal property so that Mr. Glick will not exercise acquisition. CFLP App. I at 29 at Request for Finding of Fact No. 22. At trial, Mr. Coombs denied pricing the lots high enough so Dr. Glick would not exercise his right of first refusal. T-I at 155. As to the purchase price of the four (4) lots, Attorney Lloyd wrote to Attorney Seitz that Jeff Coombs has advised that a proper price for the right of first refusal property is $375,000, or, $1,000 per acre, approximately. Id. at Request for Finding of Fact No. 26. Despite Attorney 2
Lloyd s letter, Mr. Coombs testified at trial that he didn t price [the 4 lots] by the acre. T-I at 159. Following remand from the New Hampshire Supreme Court in Glick v. Chocorua Forestlands Limited Partnership, 157 N.H. 240 (2008), the trial court conducted a 3-day remand trial to the bench. This Court s slip opinion in Glick was issued on May 16, 2008. A portion of the slip opinion instructed the trial court to determine whether CFLP acted in bad faith: upon remand the trial court shall determine whether Chocorua acted in bad faith in setting the purchase price in the P&S Agreement. If it is determined that Chocorua breached its duty to set the price in good faith, see Ahrendt v. Granite Bank, 144 N.H. 308, 312-13 (1999), the trial court shall set a purchase price in accord with the fair market value of the property in November 1998, when Glick should have been permitted to exercise his right. If it is not, Glick shall be held to his contractual obligation to proffer the purchase price stated in the P&S Agreement in order to exercise his option. Glick App. at 34 (emphasis added). Thereafter, CFLP moved for reconsideration of that portion of the slip opinion of whether Chocorua acted in bad faith in setting the purchase price. Glick App. at 18. In its motion for reconsideration, CFLP asserted that [s]ince the trial court did make factual findings which addressed Glick s allegations that Chocorua acted in bad faith in pricing the four lots, on remand this issue should not be relitigated. Glick App. at 22 (emphasis added). This Court then modified the May 16, 2008, slip opinion by deleting and replacing the portion of the opinion related to a bad faith determination with the following:.therefore, upon remand, the trial court shall determine whether the purchase price in the P&S Agreement was inflated and, if it so finds, shall set a purchase price in accord with the fair market value of the property in November 1998, when Glick should have been permitted to exercise his right. If, however, the court finds that the price was not inflated, Glick shall be held to his contractual obligation to proffer the purchase price stated in the P&S Agreement. Glick App. at 38 (emphasis added). 3
In its Order on the Merits, the trial court explained that its initial task on remand is to determine whether the purchase price in the P&S Agreement was inflated. Glick, 157 N.H. at 252. The Supreme Court has instructed that deciding the size and value of the lots is inextricably intertwined with this determination. Id. at 251. CFLP App. I at 103. In determining whether the purchase price set by CFLP in the 1998 agreement was inflated, the trial court on remand considered the documentary evidence and trial testimony of Jeffrey Coombs, CFLP s General Manager, and CFLP s then-attorney, Robert Lloyd. Specifically, the court found Attorney Lloyd s statements damaging: The court finds the remand trial testimony of Chocorua s general manager, Mr. Coombs, to be largely credible, yet cannot reconcile the credibility of that testimony with the lack of satisfactory explanation for the 1998 assertions by Chocorua s then-attorney that Mr. Coombs would place a high enough price on the first refusal property so that Mr. Glick will not exercise acquisition and that it was better to have a lower price with a separate agreement for the Glick first refusal lots than to have those lots fall out of the deal if Dr. Glick unexpectedly exercised his first refusal right. Mr. Coombs disavowed these statements at the remand trial, yet Chocorua s then-attorney, Robert Lloyd, testified at the remand trial and confirmed that his September 3, 1998 letter to the attorney for the buyer asserted that Mr. Coombs would place a high enough value on the lots that Dr. Glick would not exercise his right of first refusal and that his September 24, 1998 letter to Glick would not exercise his right of first refusal and that his September 24, 1998 letter to the buyer s attorney described how it was better to have those lots fall out of the deal if Dr. Glick unexpectedly exercised his first refusal right. In the context of determining whether the price set by Chocorua in the 1998 agreement was inflated, these are very damaging statements, yet Attorney Lloyd offered no satisfactory explanation for them, nor, notwithstanding Mr. Coombs disavowal of any such statements or any such intent, was any other satisfactory explanation offered concerning how these statements came to be or what they could mean other than what they say. CFLP App. I at 103-04. The trial court concluded that CFLP failed to provide a satisfactory explanation for these statements by Chocorua s then-attorney about setting a high enough price for the 4 lots. Id. at 104. In examining the fair market value of the 4 lots as of November 1998, the trial court considered CFLP s assertion that $375,000 represented the fair market value of these lots as of 4
November 1998 with the fact that CFLP did not present an expert real estate appraiser at the remand trial as to the fair market value of the lots of November 1998. Id. at 105. Although CFLP presented Mr. Coombs to testify as to how he arrived at the $375,000 figure in 1998, the trial court noted that Mr. Coombs is not a trained or certified real estate appraiser and concluded that: his valuation premise was fundamentally flawed. In setting the $375,000 price, Mr. Coombs was not asked to appraise the four lots for their value on the open market, but to determine their value to Chocorua. In doing so, he added the value of the timber on the lots and the value of the gravel on the lots, applied a discount, and considered the location and assets of the lots, acknowledging that the lots are worth more to Chocorua in this regard than to anyone else. CFLP App. I at 105 (emphasis added). CFLP also presented the testimony of Peter Nault, a certified real estate appraiser who appraised these four lots as of 2003. Mr. Nault testified at the remand trial that his opinion of value as of 2003 was not intended to be an opinion of value as of 1998. Id. at 106. Mr. Nault expressly declined to offer an opinion as to the fair market value of the four lots as of 1998. Id. Mr. Nault declined to validate his 2003 opinion as establishing a value as of 1998 and on crossexamination agreed that a 1998 valuation would require a set of comparable sales different from those used in his 2003 valuation. Id. Because he had no valuation opinion as of 1998, the court found Mr. Nault s testimony not to be of assistance on the ultimate issue of the fair market value of the lots. Id. Dr. Glick s expert, Louis Manias, a certified real estate appraiser, appraised the four lots as of October 1998 unlike CFLP s expert. Despite the correct valuation date, the trial court found that Mr. Manias opinion was based on errors of fact concerning the nature and extent of marketable timber on the lots and the court declined to accept his opinion of fair market value. 5
Because the trial court determined it had no reliable expert appraiser s opinion of the fair market value of the lots as of November 1998, the court proceeded to rely on the best available evidence in determining fair market value. CFLP App. I at 109. The best available evidence was its view with counsel and the fact that CFLP had a larger Chocorua tract, including a portion abutting two of the subject lots, which was valued by both Mr. Manias and Mr. Nault in 2001. Id. Mr. Manias appraised the larger tract at $550 per acre. Id. Mr. Nault appraised it at $570 per acre. Id. The court applied the per acre valuation of Mr. Nault. Id. Using this per acre valuation, the court determined that the fair market value of the four lots as of November 1998 was $570 per acre for 220.9 acres, or a total of $125,913. Id. inflated: After determining the fair market value, the trial court found that the purchase price was Given the lack of a satisfactory explanation for the September 1998 statements by Attorney Lloyd on behalf of Chocorua concerning the carving out of the four lots for a separate purchase and sales agreement and concerning the placement of a high enough price that Dr. Glick would not exercise his right to purchase, and given the sharp difference between the valuation placed on the lots in 1998 by Chocorua and the fair market value of the lots as determined from the evidence before the court, the court concludes that the purchase price in the purchase and sales agreement was inflated. CFLP App. I at 110. SUMMARY OF ARGUMENT This Court should affirm the trial court s Order on the Merits that CFLP inflated the purchase price in the P&S Agreement. CFLP s lead argument on appeal that the trial court violated the mandate in Glick because it found CFLP inflated the purchase price of the 4 lots violates the law-of-the case doctrine. This Court modified its May 16, 2008, slip opinion from finding bad faith to a determination of whether CFLP inflated the purchase price. The trial 6
court properly followed the Court s mandate in Glick to determine whether the purchase price in the P&S Agreement was inflated. This Court should affirm the trial court s determination that, based on the view and the best available evidence, the fair market value of the 4 lots is $125,913. Jeff Coombs valuation was based on the value of the properties to CFLP, not an appraisal of the 4 lots on the open market. As a result, the trial court properly found his valuation premise was fundamentally flawed. The trial court also properly rejected CFLP s real estate appraisal expert s opinion on the fair market value as of 1998 because Mr. Nault declined to offer an opinion as of 1998. CFLP cannot complain because Mr. Nault admitted his 2003 opinion could not be used as a valuation as of 1998 because different comparable sales would be needed. ARGUMENT I. CFLP S FIRST APPEAL ISSUE VIOLATES THE LAW OF THE CASE DOCTRINE CFLP s first argument on appeal is an attempt to get a second bite at the same apple. The Court should reject the leading claim of error that the trial court needed to determine if CFLP acted in bad faith in setting the purchase price in the P&S Agreement because the defendant s argument violates the law-of-the-case doctrine. CFLP s argument ignores that this Court determined, based on CFLP s motion for reconsideration in Glick, that the issue of bad faith did not need to be relitigated on remand. A. In Glick, this Court ruled that the Trial Court need only determine if CFLP inflated the purchase price CFLP faults the trial court for determining that it inflated the purchase price of the lots, rather than making a finding that it did so in bad faith. In its decision issued on May 16, 2008, and amended on June 26, 2008, Glick v. Chocorua Forestlands Limited Partnership, 157 N.H. 7
240 (2008), this Court reversed the trial court s decision in part and remanded. In remanding the case, this Court directed the trial court to: determine whether the purchase price in the P&S Agreement was inflated and, if it so finds, shall set a purchase price in accord with the fair market value of the property in November 1998, when Glick should have been permitted to exercise his right. If, however, the court finds that the price was not inflated, Glick shall be held to his contractual obligation to proffer the purchase price stated in the P&S Agreement. Id. at 251-52 (citations omitted; emphasis added). The language of the Supreme Court s mandate required the trial court to determine whether the purchase price in the P&S Agreement was inflated. Glick, 157 N.H. at 251-52 (emphasis added). Under this mandate, the purchase price was to be set aside if the price was inflated. Id. B. The Supreme Court Modified Its May 16, 2008 Slip Opinion From a Determination of Bad Faith To Inflated Questions once decided on appeal to this Court are not ordinarily reexamined in the same case upon a subsequent appeal. Merrimack Valley Wood Products v. Near, 152 N.H. 192, 201 (2005). In Merrimack Valley, this Court explained the doctrine of the law of the case: The question decided on the first appeal is known as the law of the case, and becomes binding precedent to be followed in successive stages of the same litigation. Thus, where an appellate court states a rule of law, it is conclusively established and determinative of the rights of the same parties in any subsequent appeal or retrial of the same case. Id. (citation omitted). The May 16, 2008 slip opinion instructed the trial court to determine whether CFLP acted in bad faith and included the following language: upon remand the trial court shall determine whether Chocorua acted in bad faith in setting the purchase price in the P&S Agreement. If it is determined that Chocorua breached its duty to set the price in good faith, see Ahrendt v. Granite Bank, 144 N.H. 308, 312-13 (1999), the trial court shall set a purchase price in accord with the fair market value of the property in November 1998, when Glick should have been permitted to exercise his right. If it is not, Glick shall be held to 8
his contractual obligation to proffer the purchase price stated in the P&S Agreement in order to exercise his option. Glick App. at 38. (emphasis added). CFLP failed to mention in its brief that it moved for reconsideration of that portion of the Glick slip opinion of whether Chocorua acted in bad faith in setting the purchase price. Glick App. at 18. In its motion for reconsideration, CFLP argued that [s]ince the trial court did make factual findings which addressed Glick s allegations that Chocorua acted in bad faith in pricing the four lots, on remand this issue should not be relitigated. Glick App. at 22 (emphasis added). In other words, CFLP asserted that the trial court already ruled on bad faith so it should not be relitigated in any remand trial. Next, this Court modified the May 16, 2008, slip opinion by deleting and replacing the last paragraph of section II, appearing in page 11 of the slip opinion and which began with the words While the trial court expressly found, by the following: While the trial court granted Chocorua s requested finding that Glick did not prove his allegations that [Chocorua] acted in bad faith by purportedly inflating the purchase price of the [l]ots, or overestimating the amount of land contained within the lots, in its order the court expressly declined to make findings as to both the size and value of the Masonian lots. Therefore, upon remand, the trial court shall determine whether the purchase price in the P&S Agreement was inflated and, if it so finds, shall set a purchase price in accord with the fair market value of the property in November 1998, when Glick should have been permitted to exercise his right. If, however, the court finds that the price was not inflated, Glick shall be held to his contractual obligation to proffer the purchase price stated in the P&S Agreement. Glick App. at 37-38 (emphasis added). Thus, this Court modified the remand mandate from a determination of bad faith to inflated in setting the purchase price. CFLP cannot now complain that the trial court had to determine bad faith when this Court at its request -- modified the May 16, 2008, slip opinion 9
that whether Chocorua acted in bad faith in pricing the four lots, on remand should not be relitigated. Glick App. at 22. The trial court properly ruled that it did not need to make a determination of bad faith. The issue of bad faith versus inflated was fully briefed and decided when the case was previously before the Court in Glick and is binding precedent to be followed in successive stages of the same litigation. Merrimack Valley Wood Products v. Near, 152, N.H. 192, 201 (2005). When the Court modified the slip opinion from bad faith to inflated, it is conclusively established and determinative of the rights of the same parties in any subsequent appeal or retrial of the same case. Id. The Court should therefore affirm the trial court s finding that CFLP inflated the purchase price in the P&S Agreement. C. The Trial Court s Order Was Consistent With The Supreme Court s Mandate CFLP asserts that the trial court violated the Court s mandate in Glick in setting aside the price in the P&S Agreement based as a finding that CFLP inflated the price. CFLP Brief at 17. The trial court s finding is entirely consistent with the mandate in Glick. The New Hampshire Supreme Court explained the scope of a trial court s authority upon remand, and explained what the trial court may consider in determining the scope of that authority: As a general proposition, a trial court is bound by the mandate of an appellate court on remand. After all, the mandate is the official notice of action of the appellate court, directed to the court below, and directing the lower court to have the appellate court s judgment duly recognized, obeyed, and executed. It follows a fortiori that a trial court is barred from act[ing] beyond the scope of the mandate, or vary[ing] it, or judicially examining] it for any other purpose than execution. However, in ascertaining what the mandate commands, the [trial] court need not read the mandate in a vacuum, but rather has the opinion of the appellate court to 10
aid it. In this way, the [trial] court may examine the rationale of an appellate opinion in order to discern the meaning of language in the court s mandate. Indeed, it is necessary that [p]roceedings in the trial court on remand [are] in accordance with both the mandate of the appellate court and the result contemplated in the appellate opinion. State v. Abram, 156 N.H. 646, 650-651 (2008)(citations omitted). In Williams v. Babcock, 121 N.H. 185 (1981), the Court stated: In carrying out such a mandate the trial court is limited to the specific direction of the mandate as interpreted in the light of the opinion. It follows that the trial court cannot adjudicate a right not within the scope of the remand even though it may be one that the appellate court might have directed. Williams, 121 N.H. at 195 (citations omitted). Against the background set out in Glick, 157 N.H. 240, the trial court applied the principles in Abram and Williams v. Babcock. The Supreme Court s explicit remand mandate is as follows: Therefore, upon remand, the trial court shall determine whether the purchase price in the P&S Agreement was inflated and, if it so finds, shall set a purchase price in accord with the fair market value of the property in November 1998, when Glick should have been permitted to exercise his right. If, however, the court finds that the price was not inflated, Glick shall be held to his contractual obligation to proffer the purchase price stated in the P&S Agreement. Glick, 157 N.H. at 252 (emphasis added). Based on the remand, the trial court properly found that [t]he Supreme Court s express mandate requires that this court decide whether the purchase price in the purchase and sales agreement was inflated, not whether, that price was set in bad faith. CFLP App. I. at 101. In making its determination that CFLP inflated the purchase price, the trial court found ample evidence in the trial record to support its finding: the 1998 assertions by Chocorua s then-attorney that Mr. Coombs would place a high enough price on the first refusal property so that Mr. Glick will not exercise acquisition 11
it was better to have a lower price with a separate agreement for the Glick first refusal lots than to have those lots fall out of the deal if Dr. Glick unexpectedly exercised his first refusal right Chocorua s then-attorney, Robert Lloyd, testified at the remand trial and confirmed that his September 3, 1998 letter to the attorney for the buyer asserted that Mr. Coombs would place a high enough value on the lots that Dr. Glick would not exercise his right of first refusal and that his September 24, 1998 letter to Glick would not exercise his right of first refusal and that his September 24, 1998 letter to the buyer s attorney described how it was better to have those lots fall out of the deal if Dr. Glick unexpectedly exercised his first refusal right. CFLP App. I at 10-11. In the context of determining whether the purchase price set by CFLP in 1998 was inflated, the trial court found Attorney Lloyd s statements are very damaging statements. Id. After hearing trial testimony from Mr. Coombs and Attorney Lloyd, the trial court concluded that: Attorney Lloyd offered no satisfactory explanation for [these statements], nor, notwithstanding Mr. Coombs disavowal of any such statements or any such intent, was any other satisfactory explanation offered concerning how these statements came to be or what they could mean other than what they say. CFLP App. I at 104 (emphasis added). The Court should reject CFLP s argument that the remand required a finding of bad faith as opposed to being inflated. II. THE TRIAL COURT PROPERLY DETERMINED THE FAIR MARKET VALUE OF THE FOUR LOTS The fair market value of the 4 lots was a critical issue to the remand proceedings. On appeal, argues that the trial court should have relied on the valuation offered by Mr. Coombs because Mr. Coombs testimony was the best evidence of the 1998 fair market value of the 4 lots. This argument ignores that Mr. Coombs valuation premise was fundamentally flawed because [i]n setting the $375,000 price, Mr. Coombs was asked not to appraise the four lots for their value on the open market, but to determine their value to Chocorua. CFLP App. I at 105. 12
For example, Mr. Coombs testified that the four lots were worth more to us than they were to anybody else they had a great value to us. T-II at 254. A. The Trial Court Properly Rejected the Valuation of Mr. Coombs According to the parties real estate appraisers, there are three accepted means of valuing a property. CFLP App. I at 152 and 230. The real estate appraisal experts for Dr. Glick and CFLP agreed that the Sales Comparison Method, which estimates value through sales of property comparable to the subject property, was the most appropriate method of valuing the 4 lots. Mr. Coombs valuation contradicts the market values as defined in the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation, in part, as follows: The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming that the price is not affected by undue stimulus. CFLP App. I at 149 and 216. This definition of market value was relied on by the expert real estate appraisers for both CFLP and Dr. Glick. Nevertheless, Mr. Coombs valued the property based on its value to his company CFLP, not to any willing buyer on the open market. This was improper and the trial court properly rejected his valuation. The trial court explained that Mr. Coombs determination of the value of the property not for sale in the open market in an arms-length transaction between a willing buyer and willing seller but to Chocorua causes the court to conclude that it cannot accept Mr. Coombs valuation as a determination of fair market value. Id. at 106. Dr. Glick s expert real estate appraiser explained the proper valuation focus is the valuation on the open market, not the value to a specific party as Mr. Coombs considered: [Mr. Coombs determined that] this property has value to a specific buyer [i]nstead of looking at the open market It was not on the exposed to the open market where other buyers, other potential buyers may be able to show an interest in it. It was a target property. 13
T. III at 358. Furthermore, the court went into the woods on a physical view of the property. A view is evidence the trial court may consider in determining value. This Court should affirm the trial court s determination that Mr. Coombs valuation was fundamentally flawed and not the best evidence of the 1998 fair market value of the lots. B. The Trial Court Properly Rejected the Opinions of CFLP s Real Estate Appraiser CFLP asks this Court to do something that its own expert was unwilling to do accept its valuation as of 2003 for a 1998 fair market value. The operative date for determining the fair market value of the 4 lots was November of 1998. Glick, 157, N.H. at 252. The CFLP faults the trial court for rejecting the opinion of Mr. Nault and Mr. Thompson, its real estate appraisers, who offered a valuation as of 2003, not 1998. This criticism is unfounded because CFLP s own expert said his 2003 valuation cannot be used to value the properties as of 1998. At trial, Mr. Nault s testimony confirmed under cross-examination that he had no opinion of valuation as of 1998. T-III at 591-92. He also confirmed that comparative sales in 2002 and 2003 would not be used for a value determination in 1998 because it s too far back in time to make an adjustment. Id. If there was any doubt, CFLP was on notice since this Court s decision in Glick that any real estate appraiser needed to determine the fair market value of the property in November 1998. Glick, 157 N.H. at 252. Despite knowing this date, CFLP s expert did not value the properties as of November 1998. CFLP s real estate appraiser s expert, Charles Thompson, testified in the first trial in 2006 that his 2003 valuation could not be used to offer an opinion for 1998. This issue should have been no surprise to CFLP. 14
CFLP is now hard-pressed to fault the trial court when the court s rejection of the expert s opinion is based on its own expert s trial testimony. On appeal, CFLP asks this Court to do what its expert would not do use his 2003 opinion to find a 1998 value. The trial court properly found that Mr. Nault s testimony was unacceptable on the issue of the fair market value as of 1998. CFLP cannot criticize the trial court because it decided to proceed to the remand trial with an expert whose opinion date was 5 years after the operative valuation date. This Court should affirm the trial court s rejection of Mr. Nault s testimony. C. Based on the Best Available Evidence, the Fair Market Value is $175,913 Having rejected the valuation opinions of Mr. Coombs and both real estate appraisal experts, the trial court determined the fair market value based on the best available evidence before it. CFLP App. I at 109. The best available evidence was its view with counsel and the fact that CFLP had a larger Chocorua tract, including a portion abutting two of the subject lots, which was valued by both Mr. Manias and Mr. Nault in 2001. Id. Mr. Manias appraised the larger tract at $550 per acre. Id. Mr. Nault appraised it at $570 per acre. Id. The court applied the per acre valuation of Mr. Nault. Id. Using this per acre valuation, the court determined that the fair market value of the four lots as of November 1998 was $570 per acre for 220.9 acres, or a total of $125,913. Id. Furthermore, the trial court even went on a view of the 4 lots with counsel and the parties. Under New Hampshire law, a view is evidence that the trial court may consider in determining value. New Hampshire Donuts, Inc. v. Skipitaris, 129 N.H. 774, 779 (1987). The trial court s fair market value determination of $125,913 is supported based on the best available evidence. 15
CONCLUSION For the reasons put forth above, this Court should issue an order affirming the trial court s decision that CFLP inflated the purchase price and that the purchase price is set at $125,913. Respectfully submitted: MICHAEL J. GLICK, DDS By his attorneys: DOUGLAS, LEONARD & GARVEY, P.C. DATED: July 6, 2010 By: Charles G. Douglas, III (NH Bar #669) C. Kevin Leonard, Esq. (NH Bar #10019) 6 Loudon Road, Suite 502 Concord, NH 03301 (603) 224-1988 CERTIFICATE OF SERVICE I hereby certify that two copies of the within Brief was mailed this date, first class mail, to opposing counsel Christopher H.M. Carter, Esquire and Daniel Deschenes, Esquire. C. Kevin Leonard REQUEST FOR ORAL ARGUMENT The appellee requests fifteen (15) minutes of oral argument and Charles G. Douglas, III, Esquire, will present oral argument. Charles G. Douglas, III (NH Bar #669) 16
APPENDIX TABLE OF CONTENTS 1. Motion for Reconsideration 18 2. Supreme Court Opinion on Motion for Reconsideration, dated May 16, 2008.24 3. Supreme Court Order on Motion for Reconsideration, dated June 25, 2008.37 4. Petition for Specific Performance and Related Relief 39 17