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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2005-652 JOHN BOYNTON & a. v. DENNIS FIGUEROA & a. Argued: October 3, 2006 Opinion Issued: December 21, 2006 Bernstein, Shur, Sawyer & Nelson, of Manchester (Andru H. Volinsky on the brief and orally), for the plaintiffs. Edward D. Philpot, Jr., PLLC, of Laconia (Edward D. Philpot, Jr. on the brief and orally), for defendant Signature Building Systems, Inc. DALIANIS, J. Defendant Signature Building Systems, Inc. (Signature) appeals the jury verdict entered in Superior Court (McGuire, J.) awarding the plaintiffs, John and Alicia Boynton, $250,000 in damages and assigning Signature 90% of the fault for the negligent construction and installation of their home. We affirm. The jury could have found the following facts. Signature is a manufacturer of factory-built modular homes. Rather than sell its homes directly to consumers, Signature maintains a network of approved builders from whom its homes may be purchased. Upon receiving an order from one of

its builders, Signature builds the home in its Pennsylvania plant and delivers it to the building site; one of its approved builders then erects the home on the site and finishes it there. The plaintiffs learned about Signature's modular homes through an acquaintance, defendant Dennis Figueroa. Figueroa was one of Signature's approved builders. He worked with his father, who was the exclusive dealer for Signature homes in New Hampshire. Figueroa provided the plaintiffs with brochures about Signature homes, which stated that: the plaintiffs could expect to move into a new modular home in "3 to 4 weeks after delivery"; Signature homes are "top-quality" and "custom built"; Signature uses "only the best quality products" in constructing its homes; "[q]uality will be consistent throughout the home"; Signature "goes to extraordinary lengths to provide top quality construction"; the "customized styling, affordable pricing and structural integrity" of a Signature home is "unmatched in a `site-built' home"; Signature "sell[s] our homes through a trusted team of building professionals trained in the intricacies of construction and detailed finish work"; and, "[i]f problems should arise, we have a fully trained staff of field professionals capable of performing any task quickly and efficiently." Before buying a Signature home, the plaintiffs investigated other modular home manufacturers. They eventually chose Signature because of the representations made in its marketing materials with respect to the quality of its homes and the builders with whom it works. As Alicia Boynton testified, "One of the things that helped us decide was all the literature that we were handed and all the information I could find on the internet." The plaintiffs purchased their Signature home on June 12, 2003. The total price for the home, a two-car garage, deck and pool, was $214,400. Of this amount, $69,000 was paid directly to Signature for the modular home itself. The remainder, $145,000, was for the two-car garage, deck and pool and the services of Figueroa and his subcontractors. Under the purchase and sale agreement, the plaintiffs were responsible for the "proper setting of the modular units on to the foundation," as well as "the proper installation of doors, siding, trim, and the tightening or adjustment of plumbing fitting that may loosen during shipment, as well as other items that must be shipped loose." The plaintiffs entered into a separate agreement with Figueroa to complete this work. Figueroa agreed to "furnish all of the materials and perform all of the work utilizing appropriate Signature Building Systems Modular construction and other sub-contractors as needed." The contract originally specified that the work would be substantially completed by September 1, 2003. This date was later changed to October 15, 2003.

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Anticipating that they would move into their new modular home soon after purchasing it, the plaintiffs sold their former home in August 2003. Until their modular home was ready, they lived with their two teenage children and two dogs in a small camper. The plaintiffs were unable to move into their new home until January 2004. The plaintiffs noticed problems with the foundation before the modular home was set on it. They noted, for instance, that Figueroa had not sited their home where they had directed him to site it. When they confronted him about this, he told them not to worry and that their home would be sited where they wanted it. Figueroa's assurance notwithstanding, the home was not sited where they wanted it to be, so the plaintiffs were unable to have a pool in their backyard and to have their two-car garage, as planned. Shortly after the foundation was poured, the plaintiffs also noticed that one of its walls was cracked and "had to be removed and a section of [it] repoured." The plaintiffs also observed that when Figueroa re-poured the new section of concrete, he created a patch that did not continue below the grade, even though the foundation continued below the grade. The plaintiffs further observed that a bulldozer blade had hit the foundation, leaving a "big chunk" of it missing. When John Boynton asked Figueroa about how this would be fixed, Figueroa responded: "[W]e're just going to stuff it full of insulation and then re-Tyvac it and put siding over it." Mr. Boynton told Figueroa that he needed to "fix it the right way and cut out the bad plywood, put some more insulation in and then . . . put in a patch of plywood and . . . Tyvac it and side it." Because Figueroa never fixed this problem, Mr. Boynton did it himself. The modular home was set on its foundation at the end of September 2003. After it was set, the plaintiffs noticed that the aluminum fascia boards, underneath the shingles, were "dinged-up." They also noticed that the closet walls sagged. When the plaintiffs asked Figueroa about the sagging closet walls, he told them that it was "just an optical illusion." The plaintiffs believed that the sagging walls indicated that the roof was pushing down on them. Because of the problems the plaintiffs observed, and Figueroa's inadequate responses when confronted about them, the plaintiffs fired him on November 17, 2003. The "last straw" for the plaintiffs concerned the setting of their gravity-fed septic tank. Figueroa set the septic tank higher than the opening coming from the house, which meant that the effluent would not go into the tank, but would stay in the house. As of the date they fired him, the plaintiffs had paid approximately $129,000 for their new home and for the services of Figueroa and his subcontractors.

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A few days after the plaintiffs fired Figueroa, Jay Bradley, an area sales manager for Signature, came to their property to drop off some materials. Ms. Boynton took Bradley through the home and explained "all the things that we, as homeowners, thought were wrong, the issues that we had brought forward to our contractor that were never resolved." At the same time, she asked him what she and her husband could do to "fix things or if the things that we had done were fixed right and, if not, how to remedy what we did." Ms. Boynton showed Bradley problems with the roof, vent pipes, siding, dormers, weather-proofing and windows. Specifically, she showed him that: (1) the roof lacked shingles in places and did not "line up properly"; (2) she and her husband had replaced sagging beams in the closets because they were concerned the roof was caving in; (3) the vent pipes were too small; (4) the entrance to the basement did not have siding on it; (5) one of the dormers was not properly connected to the roof; (6) there was damaged "step flashing" between another dormer and the roof; (7) there was no tar over certain exposed nails and screws; (8) one of the home's windows was missing a piece that made the window "weather-tight"; and (9) some of the windows were incorrectly installed and, thus, also were not "weather-tight." Ms. Boynton also informed Bradley that the foundation was not level, which he confirmed. While touring the home, Bradley determined that the "sill plate," pressure-treated wood that is bolted or strapped to the foundation upon which the home is then set, was not level. Because Ms. Boynton had been told that Signature only worked through authorized dealers and did not service customers directly, she asked Bradley to put her in contact with another Signature dealer. He did not do so. Ms. Boynton also requested that Bradley send her a copy of the "set manual" for the home. The set manual "tells you everything you need to know, how [the home] was constructed, how the roof system works[,] . . . what your lot should be like, what your foundation should be like." Although she requested the manual in November 2003, she did not receive it until January 2004. From the set manual, the plaintiffs learned that the "lally columns" in the basement were supposed to be secured to the beams and to the floor. The lally columns in the plaintiffs' home were not secured. To fix this problem, Mr. Boynton "took a jack and we jacked the house up so [that all of the floor joists] had the same measurement, and then we . . . . added steel plates until I made it level."

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The plaintiffs also learned that the "mating walls" of the house were supposed to be tied together with factory-supplied square galvanized plates. Ms. Boynton testified that "[t]here [were] gaps in all of the mating walls within [the] house." In trying to fix this problem, the plaintiffs discovered that "the walls were too far apart because of the gaps." Therefore, they "had to suck the walls in with [C] clamps" and lag bolts. After the plaintiffs moved into the house, they discovered that it "would only get up to 55 degrees, no matter what you put the thermostat on, and [that] . . . the windows [were] drafty." To remedy this problem, the plaintiffs insulated the second floor and, for the winter of 2005, had the windows shrinkwrapped. The plaintiffs also noticed problems with their driveway. As Ms. Boynton testified, "It was a mud bog. You would sink in the mud up over your ankles if you walked up through." As a result of this problem, the plaintiffs "hired someone to . . . take out the first few layers of top soil . . . and . . . put in hard pack and stone." Additionally, to fix other problems, the plaintiffs had: (1) a new septic system designed and installed; (2) a foundation drain installed; and (3) the well excavated and rocks and debris removed from it. The plaintiffs also attempted to make the house level. Mr. Boynton explained that they "jacked the backside of the house[,] . . . where the cracked foundation was." Using six-by-six pressure treated beams, the plaintiffs "tried to work the jacks as even as we could and a little bit at a time, . . . going from one jack to the other." Mr. Boynton then put a shim in between the mudsill and home to make the home level. The plaintiffs spent $53,000 to remedy the problems they observed. They were anxious to get the house completed because they were "homeless, living in a trailer." Additionally, Ms. Boynton testified that her lost wages for the time spent fixing the home were approximately $2,700. She testified that Mr. Boynton's lost wages were approximately $380. Ms. Boynton also testified that, because their garage was never built, they had paid $85 per month for two storage units, for a total of $1,785. The plaintiffs' expert testified that the quality of the work done in installing their modular home was "very poor." The standard of care by which the plaintiffs' expert measured Signature was the standard of a custom home, because of Signature's representations in its marketing materials. In his opinion, the plaintiffs' home did not "even meet the minimum building code standards in a number of respects." The plaintiffs' expert opined that, in his professional judgment, there was no way to remedy the home's problems completely. He testified that "if the

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home is going to meet the standard of habitability, thermal integrity, structural firmness that was intended and promised," then it was necessary to remove the house "down to the foundation to get the custom home" the plaintiffs wanted and had been promised. As he testified: "If [the home] were to be brought to the standard that was represented at this point, I believe you should take it down and crush it like my 17-year-old's old car and put new boxes on a very carefully leveled, shimmed, anchored mudsill as meets . . . the code." In April 2004, the plaintiffs sued Signature for, among other things, negligence, negligent and intentional misrepresentation, and for a violation of the New Hampshire Consumer Protection Act (CPA), see RSA ch. 358-A (1995 & Supp. 2006). Following a four-day trial, which included a view, the jury returned a verdict in favor of the plaintiffs. Signature moved for judgment notwithstanding the verdict (JNOV), to set aside the verdict, and for remittitur; the trial court denied all three motions. Over Signature's objection, the trial court doubled the jury verdict of $250,000 based upon the jury's finding that Signature acted willfully when it violated the CPA. The plaintiffs requested that the court either attach property belonging to Signature or require it to post a bond sufficient to cover the damages award. The trial court granted this request, ruling that a bond was warranted because Signature had "not demonstrated or even represented[ ] that it will be able to satisfy the judgment." On appeal, Signature argues that the trial court erred when it: (1) denied Signature's motions in limine to prohibit the plaintiffs from testifying about their remediation efforts and the costs thereof; (2) permitted the plaintiffs to offer their lay opinions about the alleged defects in the home and the means necessary to repair those defects; (3) denied Signature's motions for JNOV and for remittitur; and (4) ordered Signature to post a bond. I Signature argues that the trial court erred when it permitted the plaintiffs to testify about the existence of the alleged defects in the home, efforts they undertook to remedy those defects, the need for those efforts, the cost of their remedial efforts and the reasonableness of those costs. Signature asserts that these subjects required "specialized expertise and thus expert testimony." Signature also contends that the plaintiffs' testimony was not based upon their own observations, but rather upon information they received from "undisclosed third[-]party experts." We first address whether the trial court erred when it permitted the plaintiffs to testify about the home's defects, their remedial efforts and the costs of those efforts. We review a trial court's decisions on the admissibility of

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evidence under an unsustainable exercise of discretion standard. Desclos v. S.N.H. Med. Ctr., 153 N.H. 607, 610 (2006). We will not disturb the trial court's decision absent an unsustainable exercise of discretion. Id. New Hampshire Rule of Evidence 701 permits a lay witness to give an opinion provided that it is rationally based upon the witness's perception and is helpful to a determination of a fact issue. Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 460 (2003). Signature contends that the plaintiffs' testimony was impermissible lay opinion testimony because it was not rationally based upon their perceptions. The record reveals that, contrary to Signature's assertions, the plaintiffs merely testified about their observations and their personal actions. Ms. Boynton testified, for instance, that she could see daylight coming through a crack between one of the home's dormers and the roof. Where there was supposed to be flashing, she saw roof paper. She testified that she could see that there was a gap between the two halves of the home's roof, and that she knew that there were problems with the driveway because her "shoes stuck in [the mud] several times." She testified that she knew that she and her husband spent $53,000 on their remediation efforts because she "ha[s] the receipts and [the] cancelled checks that [she] paid the money out of"; she personally wrote the checks. Similarly, Mr. Boynton testified that he saw that the top of the septic tank "was at the same height as the sill of the house." He testified that the aluminum fascia boards were "dinged up." Mr. Boynton also testified that he and his wife saw that the top part of a closet wall when first installed "was straight" and after a week they "saw sags." He testified that he concluded that this meant that the roof was pushing down on the wall based upon his observation of the wall. He also saw "with [his] own eyes" that factory-installed kneewalls had begun "bowing out." Mr. Boynton testified about the remediation efforts that he personally took. For instance, to remedy the problem with the closet wall, he used "a couple of 20-ton bottle jacks, which [are] hydraulic jack[s]" and his own "screw jacks." He described the process as follows: With the jacks, everything in place, ready to go. We would undo the collar tie. We had a string across. We took 1

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