Jerry Gaucher v. Gary E. Waterhouse, Trustee of the Waterhouse Realty Trust & a.; Jerry Gaucher v. Gary Waterhouse & a. (2022)

Citation: Jerry Gaucher v. Gary E. Waterhouse, Trustee of the Waterhouse Realty Trust & a.; Jerry Gaucher v. Gary Waterhouse & a. (2022)
Parent Document: Jerry Gaucher v. Gary E. Waterhouse, Trustee of the Waterhouse Realty Trust & a.; Jerry Gaucher v. Gary Waterhouse & a. (2022)
Jurisdiction: New Hampshire (state)
Effective Date: 2022-07-20
Original Source: https://www.courtlistener.com/opinion/10271738/jerry-gaucher-v-gary-e-waterho... ↗

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An anticipatory breach occurs “[w]hen one party voluntarily puts it out of
his power to perform,” which consequently “gives rise to an immediate cause of
action.” LeTarte v. West Side Dev. Group, 151 N.H. 291, 296 (2004). However,
at trial, the plaintiff failed to offer any factual support for his claim that the
transfer of the ownership of the property rendered the Trust insolvent and
incapable of paying the lease termination fee. Instead, the record demonstrates
that the failure to pay the termination fee on July 1 was solely attributable to a
delay on the closing of the property. Indeed, one day after the sale to Klemm
closed, “the Trust informed [the plaintiff] that it had the $20,000.00 lease
termination fee and would pay it to [the plaintiff] if he left the building.”
Accordingly, the trial court did not err by concluding that the property transfer
from the Trust to the Waterhouses was immaterial to the delay in payment and
did not constitute a voluntary decision resulting in an anticipatory breach of
the LTA.1

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