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                  THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Strafford
No. 2018-0172


                                  DONALD TOY & a.

                                          v.

                              CITY OF ROCHESTER & a.

                           Argued: March 28, 2019
                         Opinion Issued: July 30, 2019

       Donald F. Whittum Law Office PLLC, of Rochester (Donald F. Whittum on
the memorandum of law), and Carl W. Potvin, of Rochester, orally, for the
plaintiffs.


       Andrea K. Mitrushi, deputy city attorney, of Rochester, by brief and
orally, for the defendants.

      BASSETT, J. The defendants, the City of Rochester (City) and Michael G.
and Stacey A. Philbrook, appeal orders of the Superior Court (Howard, J.): (1)
requiring the City to reacquire title to a parcel of land it previously conveyed to
the Philbrooks and transfer title to the plaintiffs, Donald and Bonnie Toy; and
(2) awarding attorney’s fees to the Toys. We affirm in part, reverse in part,
vacate in part, and remand.
        The material facts are largely undisputed. The following facts were found
by the trial court or are supported by the record. In May 2015, the City took
title to a 1.8-acre parcel of land located in Rochester (Lot 54), which contains a
house and garage in poor condition. The Philbrooks own a lot that shares a
boundary with Lot 54. The Toys own a manufactured housing park known as
“Addison Estates” and an additional, smaller lot, which are located nearby. On
August 15, 2015, the Toys purchased an additional lot, which shares
boundaries with Addison Estates and Lot 54. Lot 54 is located in a zoning
district in which the development or expansion of manufactured housing parks
is prohibited.

       In August 2015, the Rochester City Council voted to sell Lot 54 through
an advertised sealed bid process. Shortly thereafter, the City posted a bid
package, which included a Notice of Sale and Conditions of Sale. The Notice of
Sale included information on Lot 54 and a bidding deadline of August 27,
2015, and set forth the bidding procedure. The Notice of Sale required “[e]ach
bidder . . . to note on the Bid Form their intended use of the property, i.e.
owner occupied single family residence, absorption into an adjacent lot, etc.” It
also stated that “[t]he City reserves the right to reject any and all bids and
waive any minor or nonmaterial informalities, if deemed to be in the best
interests of the City.”

       The Conditions of Sale set a minimum bid of $30,000, and expanded
upon information set forth in the Notice of Sale. It provided that “[a]butters . . .
who bid on the parcel will have the right of first refusal at the highest bid
price.” Additionally, the Conditions of Sale stated that the property was being
sold in “‘As Is’ condition” and “without warranty as to . . . the ability to gain
any desired regulatory approval from the City (i.e. zoning compliance),” and
that the City would convey title to the successful bidder by quitclaim deed.

       The City received five bids for Lot 54. The Toys submitted the highest
bid of $45,500, and represented that they intended to “annex the property” to
their adjacent property. A non-abutter who intended to “rehab” the existing
single house and garage submitted the next highest bid of $36,200. Another
abutter, who intended to absorb Lot 54 into his adjacent property, submitted
the third highest bid of $35,800. The fourth highest bid in the amount of
$31,500 was submitted by a non-abutter who intended to utilize Lot 54 for a
single family residence. The Philbrooks submitted the lowest bid of $31,000,
stating that they intended to “[a]dd this abutting land to [their] land.”

       On September 8, 2015, the city finance committee held a non-public
session to discuss the bids. The City’s mayor directed the deputy city manager
to solicit additional details about the intended use of the property from the
abutters who submitted bids.




                                         2
      The deputy city manager contacted the Toys’ attorney and Michael
Philbrook. The Toys’ attorney informed him that “Mr. Toy had not decided
exactly what he wanted to do with the property,” and stated that Mr. Toy might
place a single family home on the lot, use it as an entrance to make Addison
Estates more attractive, or combine it with the adjacent lot he recently
purchased “in order to expand Addison Estates.” Mr. Philbrook informed the
deputy city manager that he wanted to build a single family home on the
property, adding that he could not afford to match the highest bid, but could
probably match the second-highest bid of $36,200.

      The deputy city manager presented this information at a non-public city
council meeting on September 15, 2015. During this session, the city council
reached a “‘consensus’” that the City would sell Lot 54 to the Toys, provided
that they agreed to a restrictive covenant in the deed prohibiting the owner of
Lot 54 from ever using the property for manufactured housing park
development or to expand Addison Estates. The city council also agreed that, if
the Toys did not accept the restrictive covenant, it would sell the lot to the
Philbrooks.

       The next day, the city attorney told the Toys’ attorney that the City
“would sell [the Toys] the property as long as [they were] agreeable to a deed
restriction” which would prevent the development or expansion of a
manufactured home park on the property. He also informed the Toys’ attorney
that “the zoning ordinance had changed and that manufactured home parks
are no longer a permitted use.” The city attorney inquired as to whether the
Toys would accept the property with the restrictive covenant, and the Toys’
attorney declined. In light of this response, the city council directed the city
attorney to sell Lot 54 to the Philbrooks for $36,200. On October 13, the City
conveyed the property to the Philbrooks by a warranty deed that did not
contain any restrictive covenants.

      After Donald Toy learned that the City sold Lot 54 to another bidder, the
Toys’ attorney demanded that the City sell the property to the Toys because
they were the highest bidder. The city attorney responded that, after the Toys’
bid was rejected by the City, it had sold Lot 54 to another bidder.

        The Toys filed a complaint against the City and the Philbrooks, asserting
claims for breach of contract and declaratory judgment. Their complaint
sought damages, a declaration that the Toys were “lawfully entitled to the right
of first refusal” on Lot 54, an order concluding that the City “breached the
Conditions of Sale by transferring” Lot 54 to the Philbrooks and requiring the
Philbrooks to convey Lot 54 to the Toys, and attorney’s fees. The defendants
filed a motion to dismiss the Toys’ complaint.

      The trial court granted the motion in part, dismissing the Toys’ breach of
contract claim. The parties then filed cross-motions for summary judgment.


                                        3
The trial court granted summary judgment to the defendants on the Toys’
declaratory judgment claim to the extent that the claim was based upon a right
of first refusal. The trial court otherwise denied the cross-motions for
summary judgment.

       Following a two-day trial, the trial court granted the Toys’ request for
declaratory judgment and injunctive relief. The trial court concluded that “the
City’s failure to award the property to the Toys as the highest bidding abutter,
and imposing a restrictive covenant . . . as a condition of sale to the Toys,
violated . . . and improperly and materially amended the Conditions of Sale
with regard to the Toys.” The trial court ordered the City to reacquire title to
Lot 54 from the Philbrooks and immediately transfer the parcel by quitclaim
deed to the Toys in exchange for the Toys’ payment of their bid amount to the
City. The trial court also granted the Toys’ request for attorney’s fees.

       The defendants moved for reconsideration. The trial court denied the
motion, and ordered the City to pay the Toys’ attorney’s fees, expenses, and
costs in the amount of $32,016.31. This appeal followed.

        On appeal, the defendants argue that the trial court: (1) erred in ordering
relief to the Toys based upon a “cause of action not alleged in the complaint”;
(2) erred in granting the Toys’ requested relief because the City was within its
right to reject their bid under the terms of the sale; (3) granted two forms of
relief to the Toys “without legal authority” by ordering the City to transfer title
to Lot 54 to the Toys and pay the Toys’ attorneys’ fees; and (4) unsustainably
exercised its discretion in granting the Toys’ request for attorney’s fees.

       The defendants first argue that the trial court erred when it ordered relief
based upon legal theories and facts that were not set forth in the Toys’
complaint — specifically, the Toys’ claim and supporting evidence that the
City’s imposition of the restrictive covenant violated the terms of the Conditions
of Sale. We disagree.

      It is well settled that a defendant is entitled to be informed of the theory
on which the plaintiff is proceeding and the redress that the plaintiff claims as
a result of the defendant’s actions. Porter v. City of Manchester, 151 N.H. 30,
43 (2004). However, “New Hampshire is a notice pleading jurisdiction, and, as
such, we take a liberal approach to the technical requirements of pleadings.”
City of Keene v. Cleaveland, 167 N.H. 731, 743 (2015) (quotation and brackets
omitted). A complaint “need not do more than state the general character of
the action and put both court and counsel on notice of the nature of the
controversy.” Pike Industries v. Hiltz Construction, 143 N.H. 1, 4 (1998).

      Although the Toys’ trial theory relating to the restrictive covenant was
not expressly articulated in their complaint, we fail to see how the defendants
lacked notice that the Toys would rely upon this argument at trial. This is


                                         4
especially so because the defendants first raised the issue of the restrictive
covenant in their summary judgment motion. In response, the Toys advanced
the very argument that they later asserted at trial: that the City violated the
Conditions of Sale and treated them unfairly by requiring them, but not the
Philbrooks, to accept a restrictive covenant. The trial court’s denial of the
defendants’ motion for summary judgment was based, in part, on its
conclusion that the restrictive covenant was one ground upon which the Toys’
claim could proceed. Thus, the defendants were squarely on notice that the
Toys would employ this theory to prove their entitlement to the requested
equitable relief.

       Moreover, despite this notice, the defendants failed to raise any objection
to the Toys’ ability to rely upon the restrictive covenant until the close of the
Toys’ case at trial. Based upon the record before us, we see no unfairness in
the trial court’s consideration of the Toys’ arguments and evidence submitted
at trial. Cf. Morancy v. Morancy, 134 N.H. 493, 497-98 (1991) (concluding that
it would be “grossly unfair” to allow the trial court’s decision on the merits to
stand where the decision was based, in part, on a cause of action that the trial
court had dismissed prior to trial and that was not pled in the plaintiffs’
complaint).

       Next, we address the defendants’ argument that the trial court erred in
granting the Toys’ request for declaratory judgment and injunctive relief. When
a trial court renders a decision after a trial on the merits, we uphold its factual
findings and rulings unless they lack evidentiary support or are legally
erroneous. Vention Med. Advanced Components v. Pappas, 171 N.H. 13, 28
(2018). We do not decide whether we would have ruled differently than the
trial court, but rather, whether a reasonable person could have reached the
same decision as the trial court based upon the same evidence. Marist Bros. of
N.H. v. Town of Effingham, 171 N.H. 305, 309 (2018). Thus, we defer to the
trial court’s judgment on such issues as resolving conflicts in the testimony,
measuring the credibility of witnesses, and determining the weight to be given
evidence. Id. Nevertheless, we review the trial court’s application of the law to
the facts de novo. Id.

       The defendants argue that the trial court erred when it concluded that
the Toys had a right to acquire Lot 54 because: (1) neither the Notice of Sale
nor the Conditions of Sale required the City to sell to the highest bidding
abutter; and (2) the City was within its rights, pursuant to the Notice of Sale, to
reject the Toys’ bid because the City decided it was not in its best interest to
convey Lot 54 to the Toys after they refused to accept the restrictive covenant.
The Toys counter that the Conditions of Sale required the City to sell Lot 54 to
the highest bidding abutter. They also assert that the City did not treat them
fairly and equally when it failed to notify them that they were the highest
bidding abutters, required them to accept a restrictive covenant as an
additional condition of sale, “selectively solicited” an increased bid from the


                                        5
Philbrooks, and sold the property to the Philbrooks without requiring them to
accept a similar restrictive covenant. The Toys, in essence, argue that our
holding in Irwin Marine, Inc. v. Blizzard, Inc., 126 N.H. 271 (1985), upon which
the trial court relied in rendering its decision, requires that we affirm. See
Irwin Marine, 126 N.H. at 275. We disagree.

       In Irwin Marine, we stated that, “absent a competitive bidding statute,
cities and towns are free to exercise discretion in determining what property to
sell and how to sell it.” Id. at 274. Indeed, “[t]he decision by a city council to
accept a bid on the sale of municipal real estate has been said to be
discretionary, so that the sale cannot be avoided unless the plaintiff shows that
the decision was arbitrary, capricious, unjust, or illegal.” Id. (quotation
omitted). We observed that “a municipality’s discretion in matters concerning
the sale of public property, even absent a statute, must be bounded by notions
of fairness in order that the public interest and public confidence in
governmental actions be upheld.” Id. at 275. When a municipality is not
bound by competitive bidding statutes or ordinances, yet “has chosen a public
bidding procedure in the sale of its realty, the public interest and public
confidence in government require the municipality to treat all bidders fairly and
equally.” Id.

       The parties do not urge us to overrule Irwin Marine, and no party argues
that Irwin Marine was not properly decided. Accordingly, we apply Irwin
Marine to the facts of this case, keeping in mind the important principle of
separation of powers and “the deference that the judiciary owes in reviewing
governmental action that violates neither constitution nor statute.” Id. at 278
(Souter, J., dissenting). At the outset, we observe that the ordinance
referenced by the trial court that relates to municipal real estate sales provides
that the City has the authority to establish and conduct a sealed bidding
procedure. Notably, the Toys do not assert that the City violated any provision
of the competitive bidding ordinance.

       We turn to the first challenged trial court finding — that the City violated
the Conditions of Sale when it failed to sell the property to the highest bidder.
Although, as the trial court noted, the Conditions of Sale provided that
abutters would have a right of first refusal at the highest bid price, the right
was not without qualification: in the Notice of Sale the City reserved the “right
to reject any and all bids . . . if deemed to be in the best interests of the City.”
Thus, the City explicitly retained the discretion to reject any bid — including
the highest bid from an abutter — if it concluded that doing so would be in the
best interests of the City.

       The trial court recognized the validity of the “best interests” provision set
forth in the Notice of Sale, and the court’s ruling in that regard is not
challenged on appeal. However, the trial court went on to find that “the City
presented no evidence . . . that it rejected the Toys’ bid because it in fact


                                         6
deemed the Toys’ bid not to be in the best interests of the City.” The trial court
also observed that there was no evidence in the record as to “what the City
deemed to be in its best interests.” Although we agree that city officials never
expressly declared that the City deemed it to be in its “best interests” to reject
the Toys’ bid, nothing in the Notice of Sale or Conditions of Sale required the
City to make such a formal or explicit statement, or to explain to the abutters
or to the public precisely why it deemed rejection of a bid to be in the City’s
best interests. In fact, the Notice of Sale did not require the City to follow any
particular procedure when deciding whether to reject a bid based upon the best
interests of the City.

       In the Notice of Sale, the City sets forth the requirement that all bidders
provide information regarding their intended use of the property. The next
provision in the Notice of Sale explicitly states that the City reserves the right
to reject any bid if deemed to be in the best interests of the City. Viewing these
provisions together, it is evident that the City wanted to consider the bidders’
intended use of the property as part of its best interests analysis. We hold that
the mere absence of an express declaration of “best interests” is insufficient to
demonstrate that the City’s exercise of discretion was “arbitrary, capricious,
unjust, or illegal” or that the City treated the Toys unfairly. Irwin Marine, 126
N.H. at 275 (quotation omitted). Holding the City to a more demanding
standard would impose a requirement that neither this court nor the
legislature has previously articulated. Accordingly, we look to the record to
determine whether the evidence establishes that the City actually rejected the
Toys’ bid because it deemed the rejection to be in the best interests of the City.
Here, we conclude that it does.

       According to the testimony of the mayor, who was the city council’s
finance committee chair at the time, the city council considered several factors
in addition to the highest bid price, including “protecting the integrity of the
neighborhood” and ensuring that the “population density was okay and that
the abutters wouldn’t be . . . unnecessarily burdened.” These factors relate
directly to the intended use of the property. The mayor further testified that
the city council was concerned with one of the possible uses of the property by
the Toys — the expansion of Addison Estates, the manufactured housing park
already owned by the Toys — because it “wanted to make sure . . . that the
development of [Lot 54] was in the best interest of the City, which was to make
sure it fit into the neighborhood.” Specifically, he testified that “it all came
back to the issue of . . . mobile home parks,” and noted the city council’s
concern as to whether the Toys were aware that the current zoning ordinance
precluded use of Lot 54 as a manufactured housing park. He further testified
that the city council was not “going to permit any such use in the future.” The
mayor recounted that, upon learning that the Toys would not accept the
restrictive covenant, the city council decided not to sell the property to the
Toys.



                                        7
       The mayor’s unrebutted testimony demonstrates that the City based its
decision to reject the Toys’ bid on its assessment of the best interests of the
City — specifically, that the use of the property to expand the Toys’
manufactured housing park would be contrary to the City’s best interests. In
rejecting the Toys’ bid, the City complied with the terms of the Notice of Sale
and Conditions of Sale. Accordingly, in the absence of any allegation by the
Toys of invidious discrimination by the City or other conduct specifically
prohibited by ordinance, statute, or the constitution, we conclude that the trial
court erred when it determined that the City violated the Conditions of Sale
when it declined to sell Lot 54 to the highest bidder.

       The City’s refusal to sell Lot 54 to the highest bidder, was not, however,
the only basis for the trial court’s conclusion that the City ran afoul of Irwin
Marine. The trial court also concluded that the City did not treat the Toys in a
fair and equal fashion when it (1) required that the Toys accept a restrictive
covenant as an additional condition of sale, and (2) failed to require that other
bidders accept the same restrictive covenant. The trial court determined that
the City “improperly and materially amended” the terms of the sale because the
City did not “reserve[] any type of right or option to convey the property with a
restrictive covenant limiting the acceptable intended use, or future use and
marketability of the property.” Although, ideally, the City should have included
the restrictive covenant in the Notice of Sale or the Conditions of Sale, we
disagree with the trial court that the City could not subsequently revise the
terms of sale to include the restrictive covenant. See Irwin Marine, 126 N.H. at
275-76.

       Irwin Marine stands for the proposition that municipalities must treat all
bidders fairly and equally under the terms of sale adopted by the municipality
and any municipal ordinance or statute. See Irwin Marine, 126 N.H. at 275.
At the same time, in Irwin Marine, we reaffirmed the important principle that
municipalities “are free to exercise discretion in determining what property to
sell and how to sell it.” Id. In Irwin Marine, we concluded that the City of
Laconia treated the plaintiff unfairly when it failed to notify the plaintiff, the
only bidder in the first round of bidding, that it had rejected its bid and had
opened a second round of bidding. Id. at 273, 276. It was not Laconia’s
rejection of the highest bid or its decision to open a second round of bidding
that constituted the unfair conduct; rather, the unfairness resulted from the
lack of notice to the plaintiff of the rejection of its bid, which placed the plaintiff
“at a disadvantage in relation to other potential bidders” when the City
conducted another round of bidding. Id. at 276 (“A public bidding procedure
that places a bidder at a disadvantage violates the public interest in according
prospective bidders an equal opportunity to bid and weakens public confidence
in government.”). Accordingly, nothing in Irwin Marine prohibits a municipality
from amending the terms of sale, provided that it does so in a fair and equal
manner.



                                          8
       Nor does our observation in Perry v. West, 110 N.H. 351 (1970), that
“[b]oth the [municipality] and the public were entitled to rely upon the terms of
the auction sale,” prohibit a municipality from revising the conditions of sale.
Perry, 110 N.H. at 355. There, we encouraged “[c]ertainty in bidding
procedures by which all bidders are on an equal basis . . . in the disposition
and sale of municipal property.” Id. at 355. This admonition, however, does
not prevent a municipality from revising the terms of sale as long as it
implements any changes in a manner that treats all bidders fairly and equally.
See id.

       Here, in light of the bid requirement that bidders disclose their intended
use of Lot 54, and the City’s explicit reservation of the right to refuse any bid if
deemed in the best interests of the City, and given the City’s desire to prevent
the use of Lot 54 as a manufactured housing park — whether by expansion of
Addison Estates or otherwise — it was not unfair for the City to impose the
restrictive covenant as a condition of sale. Although the trial court implies that
this additional requirement was unfair because the deed restriction would
reduce the value and marketability of the property, we see no unfairness in
imposing this requirement since the bidders were under no obligation to
consummate the purchase at the original bid price, or to agree to accept the
property subject to the restrictive covenant.

       The trial court also found that the City’s request that the Toys accept a
restrictive covenant was inconsistent with the City’s representation in the
Conditions of Sale that it would make no warranty as to “the ability to gain any
desired regulatory approval from the City (i.e. zoning compliance).” We
disagree with the trial court’s interpretation of the language of the Conditions
of Sale. The provision in the Conditions of Sale merely informed bidders that
the property would be sold without any promises as to municipal approval for
future use. The provision did not prohibit the City from requiring the
successful bidder to accept a deed restriction that would prevent the bidder
from seeking regulatory approval for any specific use — particularly if the City
deemed that use to be contrary to its best interests. Thus, we conclude that,
especially given the City’s concerns about future use of the property, the City
did not violate the terms of sale or treat the Toys unfairly when it required the
Toys to accept a restrictive covenant as a condition of sale.

      Up to this point, we see no unfairness to the Toys in the City’s actions.
However, we agree with the trial court that, in contravention of Irwin Marine,
the City failed to treat the Toys “fairly and equally” when it did not require the
Philbrooks to accept the same restrictive covenant demanded of the Toys.
Irwin Marine, 126 N.H. at 275. Once the City conditioned the sale to the Toys
on their acceptance of the restrictive covenant, fairness dictated that the City
require all bidders to accept the same covenant in order to “put all bidders on
equal footing.” Id. at 276. It is immaterial that the Philbrooks represented to
the City that they did not intend to develop a manufactured housing park on


                                         9
the property; the City’s decision to require the Toys — but not the Philbrooks —
to accept the restrictive covenant was unfair because the Philbrooks were able
to acquire Lot 54 free of a development restriction that almost certainly would
have had a negative impact on the value of the property.

       We conclude that the City’s decision to require the Toys to accept the
restrictive covenant as an additional condition of sale, but not to impose the
same condition on the sale to the Philbrooks, was “outside the bounds of
fairness.” Id. at 275. Accordingly, we affirm the trial court’s conclusion that
the City did not treat the Toys “fairly and equally” — but only to the limited
extent that the City failed to require that other bidders, including the
Philbrooks, accept the restrictive covenant. Id.

       We now review the equitable relief ordered by the trial court: that the
City reacquire title to Lot 54 from the Philbrooks and transfer the title by
quitclaim deed to the Toys. This award of equitable relief was based upon the
trial court’s conclusion that the City was required to sell the property to the
highest bidding abutter, and that it did not have the right to impose a
restrictive covenant as an additional condition of sale. Because the trial court
erred in both respects, and the errors necessarily informed the court as it
fashioned a remedy, we vacate the trial court’s grant of equitable relief, and
remand to the trial court to craft a suitable remedy. In so doing, we observe
that the City would not have run afoul of Irwin Marine had it merely decided to
initiate a second round of bidding with the restrictive covenant as a condition
of sale, instead of conveying Lot 54 to the Philbrooks without the covenant.

       We recognize that five parties — not just the Toys and the Philbrooks —
submitted bids for the purchase of Lot 54, and the City’s failure to notify all
bidders of the revised terms of sale failed to place “all bidders on an equal
footing.” Id. at 276. Accordingly, on remand, one equitable remedy that the
trial court may wish to consider to address the City’s failure to provide notice of
the revised purchase terms is to order the City to reacquire title to Lot 54 from
the Philbrooks, and to refund the Philbrooks’ purchase price together with their
costs.1 The City could then decide whether to keep Lot 54 or to sell it, and
whether to include a restrictive covenant in the terms of sale. Of course, the
City would be required to treat all bidders fairly and equally. Id. at 275.

       Finally, the defendants challenge the trial court’s award of attorney’s fees
to the Toys. The fee award, like the equitable relief fashioned by the trial court,
was premised in large part upon the trial court’s erroneous determination that
the City violated Irwin Marine when it failed to convey the property to the
highest bidding abutter, and when it required the Toys to accept the restrictive

1We note that rescinding the sale could “impos[e] unfairness at least as great” on the Philbrooks,
who did nothing wrong. Irwin Marine, Inc. v. Blizzard, Inc., 126 N.H. 271, 278 (1985) (Souter, J.,
dissenting) (“The cure seems to me as bad as the disease.”).


                                                10
covenant as a condition of sale. Notably, we have rejected the Toys’ primary
contention on appeal — that, as the abutters submitting the highest bid, they
were entitled to purchase the property without a restrictive covenant. We make
no determination as to the other bases for the award of fees. Accordingly, we
vacate the fee award and remand the issue of attorney’s fees to the trial court
for further proceedings consistent with this opinion.

                                                Affirmed in part; reversed
                                                in part; vacated in part;
                                                and remanded.

     LYNN, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.




                                      11
