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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 ___________________________ Coos No. 2007-447 HAROLD LASSONDE, III d/b/a MOUNTAIN VIEW CONSTRUCTION v. CHARLES STANTON & a. Argued: April 30, 2008 Opinion Issued: August 15, 2008 Bouchard, Kleinman & Wright, P.A., of Manchester (Nicholas D. Wright on the brief and orally), and John L. Riff, IV, of Colebrook, on the brief and orally, for the plaintiff. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendants. BRODERICK, C.J. The defendants, Charles and Susan Stanton, appeal a judgment of the Superior Court (Vaughan, J.) finding them liable for breach of contract and defamation. The plaintiff, Harold Lassonde, III, doing business as Mountain View Construction, cross-appeals, challenging the amount of damages awarded on his defamation claim, and the trial court's failure to include attorney's fees and interest in his breach of contract award. We affirm in part, vacate in part, and remand.

I After a bench trial, the trial court found the following facts. In May 2005, the Stantons entered into a contract with Lassonde for the construction of a log home on their land in Pittsburg for the sum of $192,350.79. The contract obligated Lassonde to install a foundation, septic system and well, to assemble the log home, and to complete interior finish work. It called for construction to start by June 1, and for "substantial completion" by December 1. Notably, the contract did not include a "time is of the essence" provision. The Stantons were obligated to pay Lassonde in installments as the work progressed. Final payment was due "5 days after substantial completion of the work provided the work be then fully completed and the contract fully performed." The start of construction was delayed until late June because the Stantons did not promptly obtain the financing needed to purchase their log home kit. Thereafter, Lassonde's work "progressed consistently" through the end of December. The home was weather-tight by the third week of September, although prior to that, the lumber was exposed to periods of seasonal rain. The Stantons caused further construction delays during the fall by requesting changes to a special sound system as it was being installed by a subcontractor; the home's interior partitions could not be closed in until the wiring for the sound system was in place. According to Lassonde, the home was ready for occupancy on December 30. The Stantons moved into their home during the second week of January 2006. In late December, just before moving in, the Stantons sent Lassonde a series of emails with an "aggressive and unpleasant [tone], alleging various acts of misfeasance by the contractors during the course of construction." On January 16, the Stantons also sent a "punch list" of twelve items that, in their view, required further work. Lassonde promptly returned to the Stantons' property with the intention of addressing those items, but did not complete all of the requested tasks, as he apparently considered some unnecessary or outside the scope of the parties' contract. After moving in, the Stantons experienced a mold problem in their home that required repair work, including the sanding and refinishing of walls, ceilings and floors. They attributed the mold to excess moisture in the home's logs due to their exposure to rain over the course of the summer. The trial court, however, made these findings: [W]hile there is ample evidence that there was moisture accumulation within the house after the Stantons took occupancy, the evidence supports a finding that the accumulation of moisture was directly attributable to the Stantons['] failure to install proper

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ventilation, compounded by their failure to have dehumidifying equipment in the house. There is undisputed testimony that the Stantons were advised to install a large ventilation fan in the master bathroom but declined to do so. . . . [T]he testimony of the [Stantons'] own expert . . . makes it clear that log cabin structures are known to create unusually high indoor moisture levels during their first several heating seasons because the logs giv[e] up their internal moisture to the interior environment of the house . . . [but] the Stantons refused to install appropriate and reasonable ventilation to the interior. Moreover, the Stantons had requested that Lassonde install a hot tub and an oversized multiple jet shower in their master bathroom not originally called for in the design plans. The trial court labeled both the shower and the plumbing required to support it as "elaborate." It found that the moisture generated in this bathroom exacerbated "an already potentially humid situation." After their mold problem surfaced, and the Stantons' relationship with Lassonde began to deteriorate, the Stantons proclaimed their intense dissatisfaction with Lassonde's work to a number of people. They complained about Lassonde's supposed incompetence to various laypeople, subcontractors who frequently worked with Lassonde, at least two potential Mountain View Construction customers, and those present at a meeting of the Pittsburg Board of Selectmen, who were informed by the Stantons that Lassonde had built a "sickly" house. The Stantons even reported to a number of people that their house was so defective it had been condemned, and needed to be torn down. The Stantons did not deny making these statements, but claimed they were truthful and not uttered with malice. The Stantons also refused to pay Lassonde the final $36,650 due on their contract. They maintained that no balance was due because they had incurred considerable costs as a result of Lassonde's purported failure to complete their home in a timely and workmanlike manner. In fact, after Lassonde filed suit for breach of contract and defamation, the Stantons counterclaimed for breach of contract. In its ruling on the parties' competing claims for breach, the trial court credited extensive expert testimony that the Stantons' home was built in a workmanlike manner, while emphasizing the Stantons' own representations to their mortgage company that the home had been completed "per plan specification" and that their contractors would be paid with funds from their final mortgage disbursement. Indeed, the court concluded that there was "no basis in fact" for the Stantons' claims that Lassonde had built their home in a defective manner. It further found that the home was completed within a reasonable time frame, in conformity with the terms of the contract, and that

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the Stantons caused the construction delays they attributed to Lassonde. The court entered judgment for Lassonde on his claim for breach of contract in the amount of $36,650, plus an additional $6,273 for extra work not called for by the parties' contract, but performed at the Stantons' request. The court also found that Lassonde was entitled to $10,000 in damages for his defamation claim. II In their notice of appeal, the Stantons presented the following issue for our review: "Whether the court's decision in this matter constituted an unsustainable exercise of discretion, as it was against the clear weight of the evidence and the court ignored a significant volume of evidence favorable to the [Stantons]." In their brief, the first question presented asks if "the court err[ed] in holding that the Stanton's [sic] breached their contract with Mountain View and the Lassondes when Mountain View did not comply with its own promises, and the Stanton's [sic] merely withheld payment for that reason[.]" The body of their brief highlights allegedly unkept oral promises from Lassonde to "take care of everything" related to the log home, as an example, and to have the Stantons' home ready by Christmas 2005. The Stantons maintain that given these promises, they "were justified in withholding the final payment." Moreover, they reiterate their argument at trial that it was Lassonde who actually breached the parties' contract. Lassonde initially argues that the questions raised by the Stantons in their brief, particularly those relating to any oral promises on the part of Lassonde, were not preserved by their notice of appeal. Appellate questions not presented in a notice of appeal are generally considered waived by this court. See State v. Jackson, 144 N.H. 115, 117-18 (1999). While the statement of a question need not be worded exactly as it was in the appeal document, the question presented shall be the same as the question previously set forth in the appeal document. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Sup. Ct. R. 16(3)(b). Here, we find the issue raised by the Stantons in their notice of appeal fairly encompassed the core question presented by their brief. While the phrasing of their argument was somewhat fluid over time, the Stantons consistently raised a perceived lack of support for the trial court's final ruling that they, and not Lassonde, breached the parties' written contract. We will consequently address the merits of that claim. However, we decline to address whether any oral promises made by Lassonde constituted enforceable modifications of the parties' contract, as is implied by the Stantons' brief, since this question cannot be considered a "subsidiary" issue of any raised in their

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notice of appeal. Id. An evaluation of the existence and enforceability of oral modifications to a contract is an entirely distinct undertaking from an evaluation of whether a trial court's ruling in an action for breach of contract was supported by the evidence. Compare Guaraldi v. Trans-Lease Group, 136 N.H. 457, 460-61 (1992), with Automated Housing Corp. v. First Equity Asso's, Inc., 121 N.H. 177, 180 (1981). We will uphold a trial court's ruling in an action for breach of contract unless the decision was made without evidentiary support or was an unsustainable exercise of discretion. Automated Housing Corp., 121 N.H. at 180; see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). A trial court's findings of fact in a breach of contract action are binding upon us unless they are unsupported by the evidence or erroneous as a matter of law. Czumak v. N.H. Div. of Developmental Servs., 155 N.H. 368, 371 (2007). While the interpretation of a contract is a question of law we would review de novo, id. at 373, this appeal does not require interpretation

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