___________________________

Carroll

No. 98-051

RICHARD A. LAKE

v.

JOSEPH E. SULLIVAN & a.

January 24, 2001

Richard A. Lake, by brief and orally, pro se.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Arthur G. Greene and Rachel A. Hampe on the brief, and Mr. Greene orally), for the defendants.

BROCK, C.J. The plaintiff, Richard A. Lake, appeals an order of the Superior Court (O'Neill, J.) granting the defendants' motion for summary judgment. The defendants are the Kearsarge Building Company, Inc. (Kearsarge), the Forest Edge Water Company (Forest Edge), Joseph E. Sullivan, president of Kearsarge and Forest Edge, and Joseph E. Sullivan, III (Ned Sullivan), a clerk of Kearsarge and an employee of Forest Edge. We affirm.

The plaintiff currently occupies a house in North Conway to which his son, William Lake, holds record title. Kearsarge built the house in 1985 and sold it to the original owners in 1986. The original owners sold the property to the plaintiff's son in 1987. The property receives its water supply from Forest Edge.

Since October 1994, the plaintiff has lived in his son's house pursuant to a contractual agreement. Under its terms, the plaintiff agreed to purchase the property for $93,000 by October 1, 1999. The purchase price included a $3,500 down payment, payment of $6,500 in property taxes owed by his son, and forgiveness of a $7,000 debt owed to the plaintiff by his son. The plaintiff also agreed to assume a $76,000 mortgage on the property. According to the contract, until he "exercises his right of purchase," the plaintiff is responsible to pay the monthly mortgage installments. In addition, from the date of the agreement the plaintiff agreed to pay all future utility charges and taxes on the property. If the plaintiff did not purchase the property as contemplated, all payments he made to the date of default would accrue to the benefit of his son as liquidated damages.

According to the plaintiff, at some point before he occupied his son's property, defendant Ned Sullivan, a neighbor, cleared trees, planted grass, put up a picnic table, and buried a propane tank on the property. In addition, because water bills for the property had been in arrears for over two years, in June 1995 the Sullivans entered the property, which the plaintiff then occupied, to disconnect the water service. In doing so, they dug holes and cleared vegetation on the property. Subsequently, the plaintiff brought suit against the defendants alleging statutory and common law claims of trespass, breach of covenant to preserve a private road, and breach of warranty of workmanlike quality. The defendants moved for summary judgment. The trial court ruled that the agreement between the plaintiff and his son was a lease-option agreement rather than a purchase and sales agreement and that as a tenant, the plaintiff lacked standing to raise his claims. The court granted the defendants' motion for summary judgment.

On appeal, the plaintiff argues that the trial court erred because (1) the contract with his son was a purchase and sales agreement; (2) as a purchaser of the property, he had standing to bring claims against the defendants; (3) genuine issues of material fact preclude summary judgment; and (4) it failed to require joinder of all parties in interest.

Summary judgment is appropriate where, after a court considers all of the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See RSA 491:8-a, III (1997); Horse Pond Fish & Game Club v. Cormier, 133 N.H. 648, 653, 581 A.2d 478, 481 (1990). For purposes of summary judgment, a disputed fact is material "if it affects the outcome of the litigation under the applicable substantive law." Sandford v. Town of Wolfeboro, 143 N.H. 481, 484, 740 A.2d 1019, 1021 (1999) (quotation omitted). One opposing a motion for summary judgment must support his or her objection with "specific facts showing the existence of a genuine issue for trial." Omiya v. Castor, 130 N.H. 234, 237, 536 A.2d 194, 196 (1987) (quotation and citation omitted).

The plaintiff first argues that the trial court erred when it determined that the agreement was "a lease with an option to buy." According to the plaintiff, he is not a tenant, but a purchaser with an equitable interest in the property. We disagree.

Interpretation of a written contract is ultimately a question of law for this court to decide. See Holden v. Eng'g and Surveying v. Pembroke Rd. Realty Trust, 137 N.H. 393, 395, 628 A.2d 260, 262 (1993). We will interpret a contract according to the common meaning of its words and phrases and judge the intent of the parties by objective criteria rather than the "unmanifested states of mind of the parties." Logic Assoc's, Inc. v. Time Share Corp., 124 N.H. 565, 572, 474 A.2d 1006, 1010 (1984).

Viewed as a whole, the contract between the plaintiff and his son is more akin to a lease with an option to purchase rather than a purchase and sales agreement. While the agreement recites that the plaintiff agrees to purchase the property and his son agrees to sell it and execute a deed over to the plaintiff, language typically found in a purchase-sale agreement, terms such as "lease" and "exercise right of purchase," more consistent with a lease-option agreement, are used throughout the contract. More importantly, it is clear from the contract that although the plaintiff has invested money in the property, he is not obligated to pay the full purchase price. See, e.g., 77 Am. Jur. 2d Vendor and Purchaser