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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 ___________________________ Hillsborough-northern judicial district No. 2009-467 AKWA VISTA, LLC v. NRT, INC. d/b/a COLDWELL BANKER RESIDENTIAL BROKERAGE & a. Argued: May 13, 2010 Opinion Issued: July 23, 2010 Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the plaintiff. Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Peter G. Callaghan on the brief and orally), for the defendants. DALIANIS, J. The defendants, NRT, Inc. d/b/a Coldwell Banker Residential Brokerage (Coldwell Banker) and Frank C. Schoenthaler, appeal the Superior Court's (Smukler, J.) denial of their motion for judgment notwithstanding verdict (JNOV) and remittitur upon the jury verdict against them for breach of contract and negligent misrepresentation and upon the jury verdict against them for their counterclaims against the plaintiff, Akwa Vista, LLC. We affirm.

The jury could have found the following facts. In 2002 and 2003, Akwa Vista, a real estate developer, sought to develop a 400-acre parcel on Lake Winnipesaukee. In 2003, Schoenthaler, a Coldwell Banker real estate agent, approached Richard Mailloux, the owner of Akwa Vista, at a planning board meeting and told him that Coldwell Banker wanted the exclusive right to sell the lots of the subdivision Akwa Vista planned to create on the 400-acre parcel. Schoenthaler stated that Coldwell Banker was "a national company" that did "millions of dollars worth of volume per day," and that he "would spend [$]1,080,000 to market the property." He also told Mailloux that he "had tons of builders that he constantly did business with." Of these builders, Schoenthaler represented that there were four to six who would purchase twenty-six lots for a minimum of $4 million. Schoenthaler told Mailloux that he could deliver the builder-buyers as soon as Mailloux's purchase of the property closed in early April 2004. The parties then executed a written contract entitled "EXCLUSIVE RIGHT TO SELL AGREEMENT" (Agreement). This agreement, dated and signed on March 4, 2004, by Mailloux for Akwa Vista and Schoenthaler for Coldwell Banker, stated, in pertinent part: Whereas [Coldwell Banker] has secured four (4) to six (6) home builders who are committed to purchasing twenty-six (26) residential building lots from [Akwa Vista] at an aggregate price of $4,000,000, [Akwa Vista], in recognition of [Coldwell Banker's] efforts as herein before described, has agreed to list the sale exclusively with [Coldwell Banker] the 163 residential building lots in Akwa Vista Subdivision . . . , excluding the eight (8) building lots reserved for the Mailloux family . . . on the terms and conditions hereinafter set forth. Shortly after the parties signed the agreement, Akwa Vista closed on the property. Schoenthaler, however, failed to deliver any buyers for the subdivision. When asked repeatedly about the promised buyers, Schoenthaler consistently assured Akwa Vista of their existence, but gave different explanations for his failure to produce them. Akwa Vista sued Schoenthaler and Coldwell Banker, alleging, among other things, breach of contract and negligent misrepresentation. The defendants brought similar counterclaims against Akwa Vista. Following a four-day trial, the jury returned a verdict in Akwa Vista's favor and against the defendants on their counterclaims, awarding Akwa Vista $850,000. The trial court denied the defendants' motion for JNOV and remittitur. On appeal, the defendants argue that the trial court erred when it denied their motion for JNOV because: (1) no reasonable jury could conclude that

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there was a breach of contract resulting in damages to Akwa Vista; (2) Akwa Vista failed to prove the elements of negligent misrepresentation; and (3) the jury verdict in favor of Akwa Vista on the defendants' counterclaims was against the weight of the evidence. They argue that the trial court erred in denying their motion for remittitur because the damages awarded were speculative, manifestly exorbitant and against the weight of the evidence. I. JNOV

A motion for JNOV relates to the sufficiency of the evidence and presents a question of law. Gowen v. Brothers, 121 N.H. 377, 380 (1981). A party is entitled to JNOV only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand. See Boynton v. Figueroa, 154 N.H. 592, 602 (2006). In deciding whether to grant the motion, the trial court cannot weigh the evidence or inquire into the credibility of witnesses. Id. If the evidence adduced at trial is conflicting, or if several reasonable inferences may be drawn, the court must deny the motion. Id. Our standard of review of a trial court's denial of a motion for JNOV is extremely narrow. Blouin v. Sanborn, 155 N.H. 704, 706 (2007). We will not overturn the trial court's decision absent an unsustainable exercise of discretion. Id. A. Breach of Contract

The defendants first argue that the language "Whereas [Coldwell Banker] has secured four (4) to six (6) home builders who are committed to purchasing twenty-six (26) residential building lots from [Akwa Vista] at an aggregate price of $4,000,000" was merely a recital and not part of the contract. Specifically, they urge us to adopt as law that "[r]ecitals in a contract, such as `whereas' clauses, are merely explanations of the circumstances surrounding the execution of the contract, and are not binding obligations unless referred to in the operative provisions of the contract." 17A C.J.S. Contracts

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