Runnymede And Fat Bullies

A legal dispute involving the sale of a horse farm called Runnymede has been affirmed in part and remanded in part by the New Hampshire Supreme Court.

The farm was purchased with the understanding that it remain a horse farm in perpetuity.

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.

The Devenports sold Runnymede to another purchaser (the Perkinses) after learning that Fat Bullies did not intend to keep the horse farm going. 

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 court rejected some of the claims against Fat Bullies

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.

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.

The above conclusion also resulted in a finding that Fat Bullies had a basis to bring the tortious interference claim.

The web page for Historic Runnymede Farm.

Historic Runnymede Farm has long been a jewel of the East Coast equine community. The home of 45 stake-winning thoroughbred race horses—including Kentucky Derby winner “Dancer’s Image”—Runnymede has infused the seacoast with an air of sporting excitement and pastoral beauty since 1923.

The farm’s colorful owner, Peter Fuller—son of Massachusetts Governor Alvan T. Fuller—became a horse-racing legend during his lifetime, famous for his remarkable winning racing record. A champion boxer, Peter Fuller once sparred with Mohammad Ali and several other well known fighters. The story of his horse winning the 1968 Derby is an intriguing tale…one of great personal struggle, back room politics, and national controversy.

 In the years following Peter Fuller’s passing, an effort to preserve the farm’s important history took shape, and two local families have now partnered to refurbish and restore the property. With their commitment to the project, a renaissance has begun at Historic Runnymede Farm. A full-scale restoration is underway at the old barn with great care being taken to retain the original wood, fixtures, and ambience. Peter Fuller’s trophy room remains unchanged, looking exactly as it did the day that Peter Fuller won the Derby.

Today, Historic Runnymede Farm is proud to continue the farm’s long tradition of equestrian excellence, honoring the farm’s legacy as well as helping to energize the seacoast community’s long held passion for horses.

Wikipedia has the 1968 Derby story

Dancer’s Image won the 1968 Kentucky Derby but was disqualified to last after traces of phenylbutazone were discovered in the mandatory post-race urinalysis. Second-place finisher Forward Pass was declared the winner. The controversy filled the sporting news of every media outlet in North America and was the cover story for Sports Illustrated magazine, which referred to it as the sports story of the year…

Owner Peter Fuller and the horse’s handlers believed someone else may have been motivated to give the colt another dose of the drug and filed an appeal of the disqualification.

The Kentucky State Racing Commission examined the matter and ordered distribution of the purse with first money to Forward Pass. Fuller took legal action, and in December 1970 a Kentucky Court awarded first-place money to Dancer’s Image.  That decision was overturned on appeal in April 1972 by Kentucky’s highest court in Kentucky State Racing Comm’n v. Fuller, 481 S.W.2d 298 (Ky. 1972).

Controversy and speculation still surround the incident, and the New York Times calls the ruling the “most controversial Kentucky Derby ever”. Forty years after the disqualification, owner Peter Fuller still believed he was a victim of a set-up, due to his being a wealthy civil rights sympathizer from Boston who offended the Kentucky racing aristocracy by donating Dancer’s Image’s $62,000 prize for a previous victory to Coretta Scott King two days after her husband’s murder. Fuller said he had anticipated that someone might interfere with his colt and asked Churchill Downs officials to provide extra security before the race, but they denied the request. As of 2008, the Churchill Downs media guide for the Derby still included the official chart showing Dancer’s Image as the winner.

By 1986, phenylbutazone was so commonly used that in that year’s Kentucky Derby, thirteen of the sixteen entrants were running on the medication.

(Mike Frisch)