Fat Bullies Farm, LLC v. Lori Devenport & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2015-0692

FAT BULLIES FARM, LLC

v.

LORI DEVENPORT & a.

Argued: November 9, 2016

Opinion Issued: May 26, 2017

Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on

the brief and orally), for the plaintiff and counterclaim defendants.

Hinckley, Allen & Snyder, LLP, of Concord (Christopher H.M. Carter and

Daniel M. Deschenes on the brief, and Mr. Carter orally), for the defendants.

HICKS, J. The plaintiff, Fat Bullies Farm, LLC (Fat Bullies), and the

counterclaim defendants, Donald Gould and Peter Simmons, appeal various

findings and rulings of the Superior Court (Wageling, J.) made during the

course of litigation with the defendants, Alan and Donna Perkins and Lori and

Bret Devenport, involving the sale of a 3.1 acre horse farm in North Hampton

known as Runnymede Farm. We affirm in part, reverse in part, and remand.

I. Factual Background

The following facts, taken from the trial court’s various orders in this

case, are relevant to our analysis. The Devenports bought Runnymede Farm in

1998. The property housed a barn, an apartment, and stables, and included a

grazing easement over adjoining lots. When the Devenports purchased the

property, they promised to operate it as a horse farm in perpetuity, and to

allow the former owner — not a party to this case — to maintain an office on

site.

On July 15, 2010, the Devenports ran into Simmons — a real estate

investor — at a local restaurant. Because they had been contemplating selling

Runnymede, the Devenports asked Simmons if he knew someone who might be

interested in purchasing the property. Simmons later told them that he was

interested, and inquired into its purchase price. Bret Devenport responded

that they were asking $800,000, and that they would only sell Runnymede if

the buyer agreed to continue operating the property as a horse farm and to

allow the former owner to maintain an office on site.

Simmons thereafter spoke with Gould — a retired Massachusetts

attorney — about purchasing the property jointly with the intent to develop

and/or resell it. Gould agreed, and the two created Fat Bullies “for the purpose

of acquiring real estate for development or resale.” Simmons and Gould then

contacted an attorney, who drafted an “option agreement” to be executed by

the Devenports and Fat Bullies. The draft option agreement stated a purchase

price of $700,000.

According to the testimony generally credited by the trial court, the

following day, July 16, Simmons and Gould went to Runnymede to meet with

the Devenports. Simmons introduced Gould as his attorney, and explained

that they were there to talk about purchasing the farm. Simmons asked to see

the trophies won by the farm’s horses and the stall of a famous horse

previously boarded there. Simmons, Gould, and the Devenports also discussed

various topics, including the cost of running Runnymede, who would manage

the farm, and the horses that were currently being boarded there.

Simmons provided the Devenports with a copy of the draft option

agreement. The Devenports reviewed the draft agreement, which they believed

to be akin to a right of first refusal. The contract was amended to reflect a

purchase price of $800,000. The Devenports reiterated that they would sell the

property only if Fat Bullies committed to operating it as a horse farm. Despite

their intentions to develop the property, Simmons and Gould agreed. The

Devenports and Fat Bullies then executed the agreement, which provided:

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OPTION TO PURCHASE

The Parties, Bret Devenport and Lori Devenport (“Sellers”) . . . and

Fat Bullies Farm (“Buyer”), do hereby agree as follows:

1. That Buyer shall have an Option to Purchase (“Option”) the

approximately 3-acre farm, commonly known as Runnymede

Farm, located at 62 Atlantic Avenue (“Property”) for $800,000.

2. That such Option shall be for a 90-day period from the date of

the signing of this Option. Such 90-day period ends on October

14, 2010.

3. That such Option shall be in consideration for $1,000.00 cash,

the receipt of which is hereby acknowledged by Sellers.

4. During the 90-day Option period, the parties shall consult with

each other in order to determine the method of payment that is

most mutually beneficial for tax purposes.

Pursuant to this agreement, Fat Bullies paid the Devenports $1,000.

The next day, Simmons and Gould returned to Runnymede to take

photographs of the property. While there, Simmons told Lori Devenport that he

could see his grandchildren growing up on the farm.

Later that month, Bret Devenport called Simmons to speak about the

manner of payment. Simmons told Bret Devenport that he was busy and

would return the call later, but it appears that he did not do so. On several

occasions Bret Devenport tried to speak with Simmons about payment, to no

avail.

Also in July 2010, Simmons began speaking to others in North Hampton,

asking whether they were interested in purchasing Runnymede. After hearing

this, Lori Devenport sent a letter on October 11, 2010, to Simmons informing

him that the Devenports no longer wanted to sell the farm. She sent this letter

because she believed that Simmons had lied to them when he promised to

operate Runnymede as a horse farm. However, the letter stated that the

Devenports had decided not to sell Runnymede because their children were

still in school.

On October 12, 2010, Simmons visited Runnymede and asked the

Devenports if they were ready to close the sale on the property. Bret Devenport

replied that they were not going to sell Simmons the farm. As stated by the

trial court, Simmons responded that he would sue the Devenports and would

“own Runnymede within 24 hours.” Fat Bullies also sent a letter to the

Devenports purporting to invoke the option to purchase the farm. Despite Fat

Bullies’ efforts, the Devenports refused to sell it the property. Instead, in April

2011, the Devenports sold Runnymede to the Perkinses.

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Simmons thereafter confronted Bret Devenport at a gas station, and

stated something to the following effect:

You’ve got to make this better. You have until Wednesday morning

or the hammer is going to come down. I know where you live . . . .

You can run but you cannot hide. I will take you to court and it

will cost you thousands of dollars and not cost me anything.

(Quotation omitted.) The Devenports refused to attempt to invalidate the sale

of the property to the Perkinses and this litigation followed.

II. Procedural History

This litigation consists of four separately filed actions, which the trial

court consolidated. Fat Bullies first filed suit against the Devenports, alleging,

among other things, breach of the option agreement. It thereafter filed two

actions against the Perkinses alleging tortious interference with contractual

relations — one seeking monetary relief, and the other seeking equitable relief.

Finally, the defendants brought an action against Fat Bullies, Simmons, and

Gould in which the Devenports asserted a fraudulent inducement claim, and

the Devenports and Perkinses collectively asserted a claim under the

Consumer Protection Act (CPA), see RSA ch. 358-A (2009 & Supp. 2016),

among other things.

The parties’ claims were resolved at various stages of litigation. The trial

court dismissed Fat Bullies’ claim seeking equitable relief against the Perkinses

for purported tortious interference with the option agreement, and granted

summary judgment to the Perkinses on Fat Bullies’ remaining tortious

interference claim. The Perkinses voluntarily non-suited their CPA claim. After

trial, the jury returned a verdict in favor of the Devenports on Fat Bullies’

breach of contract claim, finding that Fat Bullies failed to prove the existence of

a contract by a preponderance of the evidence, and a verdict in favor of Fat

Bullies, Simmons, and Gould on the Devenports’ fraudulent inducement claim.

Additionally, the jury returned an advisory verdict against Fat Bullies and

Simmons, but in favor of Gould, on the Devenports’ CPA claim. The trial court

then denied Fat Bullies and Simmons’s motion to set aside the advisory verdict

on the Devenports’ CPA claim, effectively adopting the jury’s advisory verdict.

The trial court also made various non-dispositive rulings against Fat

Bullies during the course of litigation. The adverse rulings relevant to this

appeal include a ruling granting the defendants’ motion to quash a deposition

subpoena duces tecum and a ruling limiting the cross-examination of one of

the Devenports’ witnesses at trial. The trial court also: (1) awarded attorney’s

fees and costs to the Perkinses, finding that Fat Bullies’ claims against them

were brought in bad faith; (2) awarded double attorney’s fees and double costs

to the Devenports as damages under the CPA; (3) determined that the

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Devenports reasonably incurred $323,593 in fees and $18,233.41 in costs, and

that the Perkinses reasonably incurred $199,181.84 in fees and $955.60 in

costs; and (4) determined that both Simmons and Gould were personally liable

for the payment of the Perkinses’ attorney’s fees and costs. This appeal

followed.

III. Analysis

Fat Bullies, Simmons, and Gould now appeal: (1) the trial court’s

adoption of the advisory jury verdict on the Devenports’ CPA claim; (2) the trial

court’s award of double attorney’s fees and costs to the Devenports as damages

under the CPA; (3) the trial court’s grant of summary judgment to the

Perkinses on Fat Bullies’ claim seeking monetary relief for the Perkinses’

purported tortious interference with the option agreement; (4) the trial court’s

award of attorney’s fees and costs to the Perkinses; (5) the trial court’s

determination as to the reasonableness of the requested fees; (6) the trial

court’s ruling that Gould and Simmons were personally liable for payment; and

(7) the trial court’s rulings quashing Fat Bullies’ deposition subpoena duces

tecum and limiting the cross-examination of one of the Devenports’ witnesses

at trial. We address these issues in turn.

A. CPA Claim

Fat Bullies and Simmons argue that the trial court erred in finding that

they violated the CPA. See RSA ch. 358-A. They assert, among other things,

that their conduct did not rise to the level of a CPA violation — in other words,

that it did not constitute an “unfair or deceptive act or practice” as

contemplated by the act. RSA 358-A:2 (Supp. 2016). In opposition, the

Devenports contend that the trial court properly ruled that Fat Bullies and

Simmons violated the CPA by engaging in “one long unfair and unscrupulous

course of conduct.” “The trial court’s findings of fact and rulings of law will be

upheld unless they lack evidentiary support or constitute clear error of law.”

Beer v. Bennett, 160 N.H. 166, 168-69 (2010) (quotation omitted); cf. Incase,

Inc. v. Timex Corp., 421 F. Supp. 2d 226, 239 (D. Mass. 2006) (explaining that

question of whether conduct is unfair or deceptive is a question of fact under

Massachusetts Consumer Protection Act).

The CPA proscribes unfair or deceptive trade practices in general, and

sets forth a list of specific types of conduct that qualify as unfair or deceptive

trade practices. State v. Moran, 151 N.H. 450, 452 (2004). Here, it is the

general proscription that is at issue. Although the general provision of the CPA

is broadly worded, we have recognized that not all conduct in the course of

trade or commerce falls within its scope. Id. “An ordinary breach of contract

claim, for example, is not a violation of the CPA.” George v. Al Hoyt & Sons,

Inc., 162 N.H. 123, 129 (2011) (quotation omitted).

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“In determining which commercial actions not specifically delineated are

covered by the act, we have employed the ‘rascality’ test.” Id. “Under the

rascality test, the objectionable conduct must attain a level of rascality that

would raise an eyebrow of someone inured to the rough and tumble of the

world of commerce.” Id. In addition to employing the rascality test, “we . . .

look to the federal courts’ interpretation of the Federal Trade Commission Act

for guidance” when determining what actions are unlawful under the statute’s

general proscription. Moran, 151 N.H. at 452-53; see RSA 358-A:13 (2009).

The Federal Trade Commission determines if actions are unfair or

deceptive by inquiring: (1) Whether the practice, without

necessarily having been previously considered unlawful, offends

public policy as it has been established by statutes, the common

law, or otherwise — whether, in other words, it is within at least

the penumbra of some common-law, statutory or other established

concept of unfairness; (2) whether it is immoral, unethical,

oppressive, or unscrupulous; (3) whether it causes substantial

injury to consumers (or competitors or other businessmen).

Moran, 151 N.H. at 453 (quotation omitted).

We have had limited occasion to interpret the CPA in the context of real

estate transactions. Specifically, we have: (1) recognized that “[t]rade” and

“commerce” as defined by the act “include[s] acts incidental to the sale of real

estate,” Snierson v. Scruton, 145 N.H. 73, 80-81 (2000); see RSA 358-A:1, II

(2009); (2) considered whether a particular real estate transaction occurred “in

the conduct of any trade or commerce,” Hughes v. DiSalvo, 143 N.H. 576, 577-

79 (1999) (quotation and emphasis omitted); and (3) determined whether

conduct relating to the sale and development of condominiums is exempt from

the act, Gilmore v. Bradgate Assocs., 135 N.H. 234, 236-37 (1992), overruled

by Averill v. Cox, 145 N.H. 328, 332 (2000). However, we have only once

considered whether particular acts incidental to the sale of real estate

constituted “unfair or deceptive act[s] or practice[s]” under RSA 358-A:2. See

Snierson, 145 N.H. at 81.

Here, when it adopted the advisory jury verdict, the trial court found that

the general proscription of RSA 358-A:2 applied to Fat Bullies and Simmons’s

conduct. It reasoned:

. . . Simmons showed up without any prior notice at [Runnymede]

with Gould, who the Devenports did not know. Simmons

introduced Gould as his attorney and displayed what Gould and

Simmons both believed to be a binding legal document and cash

deposit. The Devenports did not have a lawyer and Simmons did

not suggest they retain one. Simmons, despite knowing the asking

price was $800,000, produced a document . . . for signature

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depicting the sale price as $700,000. He did not warn the

Devenports ahead of time that he would be bringing a binding legal

document, an attorney, or changing the price term of the proposal.

He did not point out the change of term. He did not explain what

an option was. He led the Devenports into believing that Fat

Bullies would keep Runnymede as a horse farm and honor the

Devenports’ promise to [the former owner]. He showed interest in

the horses, trophies and [the former owner], said he was interested

in raising llamas and cows, and expressed a dream of having his

grandchildren visit the farm. This conduct, the Court finds, was

“unscrupulous” and unfair. When Simmons saw Bret [Devenport]

at the gas station, he placed his hand on Bret’s car or arm and

threatened him. . . . This conduct was “oppressive” and unfair.

In ruling upon the Devenports’ request for damages, the trial court made

additional findings relevant to the Devenports’ CPA claim. Specifically, the

court found that Fat Bullies and Simmons violated the CPA by engaging in a

“continuing course of conduct,” which “beg[an] with an unfair attempt at

contract formation” and included “threaten[ing] the Devenports with legal

action, . . . sen[ding] demand letters, . . . br[inging] suit against the Devenports

and the [Perkinses,] . . . [and] enact[ing] a contentious litigation strategy which

had the effect of causing the Devenports to incur over $200,000 in legal fees

over the course of more than four years” — all while knowing “that the

Devenports were in financial straits.” (Emphasis omitted.) The court described

this conduct as “unscrupulous,” “deceptive,” and “unfair.”

We agree with the trial court and the Devenports that a course of

conduct can violate the CPA. See, e.g., Milford Lumber Co. v. RCB Realty, 147

N.H. 15, 20 (2001). However, a series of acts only becomes a course of conduct

violative of the CPA when the acts collectively constitute an “unfair or deceptive

act or practice.” RSA 358-A:2; see Milford Lumber Co., 147 N.H. at 20

(concluding misrepresentations to procure materials and use of same

misrepresentations to avoid payment collectively constituted “course of

deceptive acts and practices”); E. Microwave, Inc. v. Am. Private Line Servs.,

Inc., No. 912850, 1993 WL 818931, at *2 (Mass. Super. Ct. Oct. 6, 1993)

(concluding defendants engaged in a “course of conduct” violating

Massachusetts Consumer Protection Act when they “deliberately siphoned”

funds owed to plaintiff out of “sham corporation” in “an intentional scheme to

defraud” plaintiff). Based upon our review of the record, we hold that the trial

court erred in finding that Fat Bullies and Simmons engaged in a course of

conduct that was “unfair or deceptive” as contemplated by the CPA. RSA 358-

A:2.

The record supports the trial court’s determination that Fat Bullies and

Simmons misrepresented their intentions regarding Runnymede. However, we

conclude that the misrepresentation of a buyer’s intentions regarding the

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future use of real property does not, as a matter of law, rise to the level of

rascality necessary for it to constitute an “unfair or deceptive act or practice.”

RSA 358-A:2. Under the statute of frauds, oral agreements restricting the use

of real property are generally unenforceable. See RSA 506:1 (2010) (statute of

frauds); Tibbetts v. Tibbetts, 66 N.H. 360, 361-62 (1890) (reasoning that oral

agreement restricting use of land could not create a negative easement);

Annotation, Oral Agreement Restricting Use of Real Property as within Statute

of Frauds, 5 A.L.R.2d 1316, 1318 (1949) (noting that “a marked majority of the

cases on th[e] subject have concluded that an oral agreement restricting the

use of real property is within the application and operation of . . . the statute of

frauds” (citing Tibbetts)). We conclude that someone inured to the rough and

tumble world of real estate transactions would be aware of the statute of

frauds. Although the Devenports may not have been aware of the statute of

frauds, we apply the rascality test objectively. See Mulligan v. Choice Mortgage

Corp. USA, No. CIV. 96-596-B, 1998 WL 544431, at *11 (D.N.H. Aug. 11,

1998). Because someone inured to the rough and tumble world of real estate

transactions would know that an oral agreement restricting the use of real

property is unenforceable, the misrepresentation of one’s intent to abide by

such an agreement is neither “unfair” nor “deceptive” under RSA 358-A:2. Cf.

Madan v. Royal Indem. Co., 532 N.E.2d 1214, 1218 (Mass. App. Ct. 1989)

(finding breach of oral lease agreement that “was not enforceable because of

the Statute of Frauds” did not satisfy rascality test); cf. Snierson, 145 N.H. at

75, 81 (holding that plaintiffs sufficiently stated a claim for relief under the

CPA when they alleged that defendants, as agents of sellers of real property,

“misrepresented and withheld facts relating to the [property’s] septic system

and various other deficiencies in the property in a seller’s disclosure form and

in oral communications”). Although the misrepresentation encouraged the

Devenports to sell Runnymede to Fat Bullies, a misrepresentation does not rise

to the level of rascality necessary to establish a consumer protection violation

merely because it encourages a sale. See Tagliente v. Himmer, 949 F.2d 1, 7

(1st Cir. 1991) (concluding, as a matter of law, that rascality test not met when

seller misrepresented “that the property had not been previously marketed for

sale, and that there were other buyers ready and willing to pay more than the

agreed upon . . . purchase price”).

Moreover, even if we were to look outside the context of real property

transactions, the nature and circumstances of Fat Bullies and Simmons’s

misrepresentation differentiate it from the types of misrepresentations we have

previously found to fall within the CPA’s general proscription. Because the jury

found that there was no contract, the misrepresentation was not made to avoid

an enforceable contractual obligation. Cf. George, 162 N.H. at 126, 129-30

(rascality test met where defendant entered into contract with plaintiff real

estate developer for construction of road, accepted deposit from plaintiff for

bridge needed to complete road, and then misrepresented status of his

performance under the contract); Becksted v. Nadeau, 155 N.H. 615, 616, 619-

20 (2007) (trial court erred in ruling no rational juror could have found

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rascality test met because rational jury could have found that defendants

intentionally sent plaintiffs inflated legal bill to use as leverage in dispute

concerning law firm’s payment obligation under construction contract); Moran,

151 N.H. at 450-51, 453-54 (rascality test met when trial court could have

reasonably found that defendant entered into construction contract with

homeowner then used misrepresentations to induce homeowner to pay in

advance for construction materials “at a time when he clearly did not intend to

perform the work”). The misrepresentation was not used to obtain a benefit

only to later be used to disclaim liability. Cf. Milford Lumber Co., 147 N.H. at

19-20 (affirming trial court’s finding of CPA violation when defendants “made

intentionally vague representations regarding their relationship with [a third

party] to facilitate the use of [the third party’s] account with the plaintiff to

procure lumber,” and then “used those same misrepresentations as a basis for

disclaiming liability”).

Viewing Fat Bullies and Simmons’s misrepresentation in conjunction

with the remainder of their course of conduct does not alter our determination.

Even taken together, the acts of showing up unannounced with an attorney

and an option agreement, not recommending that the Devenports obtain legal

counsel, attempting to negotiate price, not explaining the meaning of the

language contained in the draft agreement, threatening and attempting to

enforce an option agreement, and pursuing a contentious litigation strategy

would not “raise an eyebrow of someone inured to the rough and tumble of the

world of commerce.” George, 162 N.H. at 129; see Barrows v. Boles, 141 N.H.

382, 390 (1996) (“‘[S]elfish bargaining and business dealings will not be enough

to justify a claim for damages’ under the Consumer Protection Act.” (quoting

Eastern Motor Inns, Inc. v. Ricci, 565 A.2d 1265, 1274 (R.I. 1989))); cf.

Monotype Imaging Inc. v. Deluxe Corp., 883 F. Supp. 2d 317, 323 (D. Mass.

2012) (concluding that bringing of lawsuit regarding “a reasonable

disagreement over the meaning of contract terms” was not consumer protection

violation); Trenwick America Reinsurance Corp. v. IRC, Inc., 764 F. Supp. 2d

274, 308 (D. Mass. 2011) (considering litigation tactics part of course of

conduct in violation of consumer protection law when offending party utilized

“moving target [litigation] strategy” and engaged in “discovery abuses”). We

cannot conclude that the subject conduct offends established public policy, is

immoral, unethical, oppressive, or unscrupulous, or causes substantial injury.

See Moran, 151 N.H. at 453.

For these reasons, we reverse the trial court’s ruling on the Devenports’

CPA claim and its award of attorney’s fees to the Devenports as damages under

the CPA. In light of this determination, we need not address Fat Bullies and

Simmons’s remaining arguments regarding the CPA.

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B. Tortious Interference Claim

Next, Fat Bullies, Simmons, and Gould argue that the trial court erred in

granting summary judgment to the Perkinses on Fat Bullies’ claim seeking

monetary relief for the Perkinses’ purported tortious interference with the

option agreement. They assert that “[t]he trial judge did not set forth the facts

in a light most favorable to Fat Bullies” and erroneously made credibility

determinations that should have been left for the jury. (Emphasis omitted.)

They contend that, “at a minimum, the trial court should have concluded that

there were material facts in dispute.” (Emphasis omitted.)

In its order granting summary judgment to the Perkinses, the trial court

ruled that Fat Bullies “failed to present any evidence showing a genuine issue

of material fact that the Perkins[es] intentionally and improperly interfered”

with the option agreement. (Quotation omitted.) Assuming, without deciding,

that the trial court erred in making this determination, in light of the jury’s

finding that there was no contract, we conclude that any error was harmless.

See McNair v. McNair, 151 N.H. 343, 355 (2004) (concluding any error was

harmless when we “identified other grounds that independently compel the

conclusion” reached by the trial court); Barrows, 141 N.H. at 392 (explaining

that, to succeed on claim for tortious interference with contractual relations,

plaintiff must prove, among other things, that it “had a contractual relationship

with a third party”); Attorney General v. Morgan, 132 N.H. 406, 408 (1989)

(explaining that “[a] harmless error is an error that does not affect the

outcome,” and concluding that, “[a]lthough the trial judge erred in entering a

final judgment at the arbitration hearing, the outcome of the case was not

affected” (quotation omitted)). Accordingly, we affirm the trial court’s grant of

summary judgment to the Perkinses on Fat Bullies’ tortious interference with

contractual relations claim.

C. Award of Attorney’s Fees and Costs to the Perkinses

Fat Bullies, Simmons, and Gould next argue that the trial court erred by

awarding attorney’s fees and costs to the Perkinses on grounds of bad faith.

They contend, among other things, that their filing of the two tortious

interference claims against the Perkinses was, “at most, a considered but good

faith mistake.” In opposition, the Perkinses argue that “the facts found by the

trial court provide ample support for the court’s determination that [the

tortious interference claims] were brought in bad faith as a continuation of the

course of unfair, unscrupulous, and oppressive conduct that Fat Bullies and

Simmons directed against the Devenports.” (Quotations omitted.)

The general rule in New Hampshire is that parties pay their own

attorney’s fees. In the Matter of Mallett & Mallett, 163 N.H. 202, 211 (2012).

However, we have recognized exceptions to this rule. Id. A court may award

attorney’s fees when specifically authorized by statute. Id.; see, e.g., RSA 358-

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A:10, I (2009). Otherwise, an award of attorney’s fees must be grounded upon

an agreement between the parties or a judicially-created exception to the

general rule. Mallett, 163 N.H. at 211. “Underlying the rule that the prevailing

litigant is ordinarily not entitled to collect his counsel fees from the loser is the

principle that no person should be penalized for merely defending or

prosecuting a lawsuit.” Harkeem v. Adams, 117 N.H. 687, 690 (1977).

“As to judicially-created exceptions, attorney’s fees have been awarded in

this State based upon two separate theories: bad faith litigation and

substantial benefit.” Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365, 377-

78 (2012) (quotation omitted).

Under the bad faith litigation theory, an award of attorney’s fees is

appropriate [when] one party has acted in bad faith, vexatiously,

wantonly, or for oppressive reasons, [when] the litigant’s conduct

can be characterized as unreasonably obdurate or obstinate, and

[when] it should have been unnecessary for the successful party to

have brought the action.

Id. at 378 (quotation omitted). “When attorney’s fees are awarded against a

private party who has acted in bad faith, the purpose is to do justice and

vindicate rights, as well as to discourage frivolous lawsuits.” Jesurum v.

WBTSCC Ltd. Partnership, 169 N.H. ___, ___, 151 A.3d 949, 961 (2016)

(quotation omitted).

“We will not overturn the trial court’s decision concerning attorney’s fees

absent an unsustainable exercise of discretion.” Frost, 163 N.H. at 377. “To

warrant reversal, the discretion must have been exercised for reasons clearly

untenable or to an extent clearly unreasonable to the prejudice of the objecting

party.” Id. “In evaluating the trial court’s ruling on this issue, we acknowledge

the tremendous deference given a trial court’s decision regarding attorney’s

fees.” Id. (quotation omitted). “If there is some support in the record for the

trial court’s determination, we will uphold it.” Id.

Here, the trial court found that Fat Bullies brought its tortious

interference claims against the Perkinses “in bad faith,” explaining that Fat

Bullies’ initiation of the lawsuit against the Perkinses was “part of th[e] course

of conduct” that it ruled violative of the CPA. It reasoned that Fat Bullies

brought the tortious interference claims against the Perkinses “[p]erhaps

because [it] feared that the Devenports did not have sufficient money to pay

any judgment it sought, and perhaps as a litigation strategy.” It explained that

the claims against the Perkinses “should never have been brought” because Fat

Bullies: (1) failed to state a claim for tortious interference with contractual

relations seeking equitable relief; and (2) failed to “produce[] any evidence that

the Perkins[es] had tortiously interfered with the [o]ption.” Based upon our

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review of the record, we conclude that the trial court unsustainably exercised

its discretion to the prejudice of Fat Bullies. Id.

The trial court appeared to offer three bases for its finding of bad faith —

none of which properly supports such a finding. First, the trial court

concluded that Fat Bullies’ initiation of the lawsuit against the Perkinses was

“part of th[e] course of conduct” that it earlier ruled violative of the CPA. As

discussed above, as a matter of law, Fat Bullies and Simmons’s conduct did

not violate the CPA.

Next, the trial court noted the possibility that Fat Bullies brought suit

against the Perkinses “as a litigation strategy” or “because [it] feared that the

Devenports did not have sufficient money to pay any judgment.” However, the

trial court’s use of the term “perhaps” indicates that it did not make any

factual findings about Fat Bullies’ motive in bringing suit against the

Perkinses. See Webster’s Third New International Dictionary 1679 (unabridged

ed. 2002) (defining “perhaps” as “possibly but not certainly: MAYBE”); Fischer

v. Superintendent, Strafford County House of Corrections, 163 N.H. 515, 519

(2012) (stating that we interpret trial court orders de novo). Additionally, even

if the trial court had made such factual findings, the trial court did not

articulate, the Perkinses do not argue, and we cannot discern, how a plaintiff

engages in bad faith litigation merely by bringing suit against a solvent

defendant when it fears that it may not be able to collect on a judgment against

another defendant.

Finally, the trial court pointed out that one of Fat Bullies’ tortious

interference claims failed to survive a motion to dismiss, and the other failed to

survive a motion for summary judgment. Although the trial court’s order is not

clear, we construe it as finding that the claims against the Perkinses were

patently unreasonable. See Grenier v. Barclay Square Commercial Condo.

Owners’ Assoc., 150 N.H. 111, 117 (2003) (recognizing that attorney’s fees may

be awarded to “those who are forced to litigate against an opponent whose

position is patently unreasonable” (quotation omitted)); Glick v. Naess, 143

N.H. 172, 175 (1998) (describing a party’s unreasonableness as “a variety of

bad faith” (quotation omitted)). “A claim is patently unreasonable when it is

commenced, prolonged, required or defended without any reasonable basis in

the facts provable by evidence, or any reasonable claim in the law as it is, or as

it might arguably be held to be.” Glick, 143 N.H. at 175 (quotation omitted).

Based upon our review of the record, we cannot conclude that Fat

Bullies’ tortious interference claims were patently unreasonable. Although the

Perkinses argue that “the trial court ruled [that] Fat Bullies had no evidence to

support its claims against the Perkins[es],” the trial court made no such ruling.

Rather, based upon its review of the summary judgment record, the trial court

concluded only that there was insufficient evidence to create a genuine issue of

material fact as to one of the elements of a tortious interference claim —

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specifically, interference. Further, in support of its argument that the

Perkinses interfered with the option agreement, Fat Bullies submitted

telephone records indicating that there were “frequent phone calls” between the

Perkinses, the Devenports, and the Devenports’ attorney “in the days leading

up to the cancellation of the [o]ption [a]greement,” and evidence that the

Runnymede Farm Homeowners Association held a meeting at the Perkinses’

home in October of 2010, at which the members voted “to eliminate an unused

secondary driveway easement and to place ownership of . . . Runnymede[’s]

grazing rights in an LLC.” In light of this evidence, we cannot conclude that

Fat Bullies’ claims that the Perkinses interfered with the option agreement were

“without any reasonable basis in the facts provable by evidence.” Glick, 143

N.H. at 175 (quotation omitted). Under such circumstances, an award of fees

to the Perkinses would run counter to the principle that “no person should be

penalized for merely defending or prosecuting a lawsuit.” Harkeem, 117 N.H.

at 690.

In sum, we conclude that none of the proffered justifications provide a

proper basis for the trial court’s finding of bad faith litigation. Accordingly, we

hold that the trial court unsustainably exercised its discretion in awarding

attorney’s fees and costs to the Perkinses under Harkeem.

D. Reasonableness of Fees and Costs

Fat Bullies, Simmons, and Gould next challenge the trial court’s

determinations concerning the reasonableness of the attorney’s fees awarded to

the Devenports and to the Perkinses. The parties raise various arguments

relating to this issue. However, because we have reversed the trial court’s

awards of attorney’s fees and costs to the Devenports and the Perkinses, we

find it unnecessary to address these arguments.

E. Gould’s and Simmons’s Personal Liability

Fat Bullies, Simmons, and Gould next argue that the trial court erred by

determining that both Simmons and Gould are personally liable for the

payment of the Perkinses’ attorney’s fees and costs. Because we have

concluded that the trial court erred in awarding attorney’s fees and costs to the

Perkinses, we need not address this issue.

F. Remaining Issues

Fat Bullies, Simmons, and Gould also argue that the trial court erred by

quashing Fat Bullies’ deposition subpoena duces tecum and limiting the cross-

examination of one of the Devenports’ witnesses at trial. They appear to assert

that the evidence sought by the subpoena and the evidence that would have

been elicited on cross-examination was relevant to the court’s assessment of

Fat Bullies’ tortious interference claim against the Perkinses seeking monetary

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damages. They claim that the trial court’s error “led to a summary judgment

adverse to Fat Bullies due to a lack of evidence of any interference.” (Quotation

omitted.) Because we have concluded that any error in granting summary

judgment to the Perkinses was harmless in light of the jury’s finding that there

was no enforceable contract with which to interfere, we need not consider these

arguments.

Finally, any issues raised in the defendant’s notice of appeal, but not

briefed, are deemed waived. See Town of Barrington v. Townsend, 164 N.H.

241, 251 (2012).

Affirmed in part; reversed

in part; and remanded.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

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