2007-447, HAROLD LASSONDE, III d/b/a MOUNTAIN VIEW CONSTRUCTION v. CHARLES STANTON & a.

in part, vacate in part, and remand. include attorney’s fees and interest in his breach of contract award. We affirm damages awarded on his defamation claim, and the trial court’s failure to

as Mountain View Construction, cross-appeals, challenging the amount of of contract and defamation. The plaintiff, Harold Lassonde, III, doing business a judgment of the Superior Court (Vaughan, J.) finding them liable for breach BRODERICK, C.J. The defendants, Charles and Susan Stanton, appeal

brief and orally), for the defendants. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

orally, for the plaintiff. on the brief and orally), and John L. Riff, IV, of Colebrook, on the brief and to press. Errors may be reported by E-mail at the following address: Bouchard, Kleinman & Wright, P.A., of Manchester (Nicholas D. Wright

page is: http://www.courts.state.nh.us/supreme. v.

HAROLD LASSONDE, III d/b/a MOUNTAIN VIEW CONSTRUCTION

editorial errors in order that corrections may be made before the opinion goes No. 2007-447 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Coos Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as second week of January 2006. p. 2 occupancy on December 30. The Stantons moved into their home during the was directly attributable to the Stantons[’] failure to install proper

sound system was in place. According to Lassonde, the home was ready for outside the scope of the parties’ contract. of the requested tasks, as he apparently considered some unnecessary or the evidence supports a finding that the accumulation of moisture

performed.” work provided the work be then fully completed and the contract fully progressed. Final payment was due “5 days after substantial completion of the the home’s interior partitions could not be closed in until the wiring for the changes to a special sound system as it was being installed by a subcontractor; property with the intention of addressing those items, but did not complete all accumulation within the house after the Stantons took occupancy, The Stantons caused further construction delays during the fall by requesting

court, however, made these findings:

The Stantons were obligated to pay Lassonde in installments as the work view, required further work. Lassonde promptly returned to the Stantons’ [W]hile there is ample evidence that there was moisture although prior to that, the lumber was exposed to periods of seasonal rain.

logs due to their exposure to rain over the course of the summer. The trial ceilings and floors. They attributed the mold to excess moisture in the home’s that required repair work, including the sanding and refinishing of walls, After moving in, the Stantons experienced a mold problem in their home

1. Notably, the contract did not include a “time is of the essence” provision. construction to start by June 1, and for “substantial completion” by December January 16, the Stantons also sent a “punch list” of twelve items that, in their assemble the log home, and to complete interior finish work. It called for end of December. The home was weather-tight by the third week of September, of misfeasance by the contractors during the course of construction.” On series of emails with an “aggressive and unpleasant [tone], alleging various acts In late December, just before moving in, the Stantons sent Lassonde a

contract obligated Lassonde to install a foundation, septic system and well, to home kit. Thereafter, Lassonde’s work “progressed consistently” through the Stantons did not promptly obtain the financing needed to purchase their log The start of construction was delayed until late June because the

of a log home on their land in Pittsburg for the sum of $192,350.79. The 2005, the Stantons entered into a contract with Lassonde for the construction After a bench trial, the trial court found the following facts. In May

p. 3 truthful and not uttered with malice.

defective manner. It further found that the home was completed within a

The Stantons did not deny making these statements, but claimed they were

of contract. for breach of contract and defamation, the Stantons counterclaimed for breach home in a timely and workmanlike manner. In fact, after Lassonde filed suit basis in fact” for the Stantons’ claims that Lassonde had built their home in a final mortgage disbursement. Indeed, the court concluded that there was “no specification” and that their contractors would be paid with funds from their

house was so defective it had been condemned, and needed to be torn down. 3 “sickly” house. The Stantons even reported to a number of people that their of Selectmen, who were informed by the Stantons that Lassonde had built a

considerable costs as a result of Lassonde’s purported failure to complete their ventilation to the interior.

their mortgage company that the home had been completed “per plan

this bathroom exacerbated “an already potentially humid situation.” required to support it as “elaborate.” It found that the moisture generated in

Construction customers, and those present at a meeting of the Pittsburg Board

contract. They maintained that no balance was due because they had incurred the Stantons refused to install appropriate and reasonable internal moisture to the interior environment of the house . . . [but] their first several heating seasons because the logs giv[e] up their workmanlike manner, while emphasizing the Stantons’ own representations to credited extensive expert testimony that the Stantons’ home was built in a In its ruling on the parties’ competing claims for breach, the trial court in the design plans. The trial court labeled both the shower and the plumbing

who frequently worked with Lassonde, at least two potential Mountain View about Lassonde’s supposed incompetence to various laypeople, subcontractors dissatisfaction with Lassonde’s work to a number of people. They complained The Stantons also refused to pay Lassonde the final $36,650 due on their

are known to create unusually high indoor moisture levels during

oversized multiple jet shower in their master bathroom not originally called for

Lassonde began to deteriorate, the Stantons proclaimed their intense After their mold problem surfaced, and the Stantons’ relationship with

[Stantons’] own expert . . . makes it clear that log cabin structures master bathroom but declined to do so. . . . [T]he testimony of the Stantons were advised to install a large ventilation fan in the

Moreover, the Stantons had requested that Lassonde install a hot tub and an

equipment in the house. There is undisputed testimony that the ventilation, compounded by their failure to have dehumidifying this question cannot be considered a “subsidiary” issue of any raised in their

p. 4 modifications of the parties’ contract, as is implied by the Stantons’ brief, since

address whether any oral promises made by Lassonde constituted enforceable We will consequently address the merits of that claim. However, we decline to final ruling that they, and not Lassonde, breached the parties’ written contract.

Stantons consistently raised a perceived lack of support for the trial court’s presented in a notice of appeal are generally considered waived by this court.

every subsidiary question fairly comprised therein. actually breached the parties’ contract. The statement of a question presented will be deemed to include same as the question previously set forth in the appeal document.

While the phrasing of their argument was somewhat fluid over time, the Lassonde, were not preserved by their notice of appeal. Appellate questions not in holding that the Stanton’s [

Moreover, they reiterate their argument at trial that it was Lassonde who these promises, they “were justified in withholding the final payment.” was in the appeal document, the question presented shall be the Stantons’ home ready by Christmas 2005. The Stantons maintain that given

notice of appeal fairly encompassed the core question presented by their brief. their brief, particularly those relating to any oral promises on the part of Sup. Ct. R. 16(3)(b). Here, we find the issue raised by the Stantons in their [Stantons].” In their brief, the first question presented asks if “the court err[ed]

While the statement of a question need not be worded exactly as it care of everything” related to the log home, as an example, and to have the See State v. Jackson, 144 N.H. 115, 117-18 (1999). claim. and the Stanton’s [

Lassonde initially argues that the questions raised by the Stantons in evidence and the court ignored a significant volume of evidence favorable to the unsustainable exercise of discretion, as it was against the clear weight of the our review: “Whether the court’s decision in this matter constituted an

their brief highlights allegedly unkept oral promises from Lassonde to “take

found that Lassonde was entitled to $10,000 in damages for his defamation and the Lassondes when Mountain View did not comply with its own promises, the parties’ contract, but performed at the Stantons’ request. The court also sic] breached their contract with Mountain View amount of $36,650, plus an additional $6,273 for extra work not called for by

In their notice of appeal, the Stantons presented the following issue for

court entered judgment for Lassonde on his claim for breach of contract in the the Stantons caused the construction delays they attributed to Lassonde. The p. 5 Lassonde performed on their written contract as required.

building plans exacerbated their mold problem; and (4) that, more generally,

utilize dehumidification equipment; (3) that their own modifications to the house was attributable to their own failure to install proper ventilation and during construction; (2) that the accumulation of moisture in the Stantons’

testimony supporting their contention that the logs absorbed excess moisture

the Stantons breached their written contract with Lassonde.

were unsupported by the record: (1) that they did not introduce expert

manner. Accordingly, we affirm the well-supported ruling of the trial court that ignores voluminous evidence that their home was built in a workmanlike even attempted to demonstrate that the following findings of the trial court not address their role in causing the breaches they attribute to Lassonde, and unworkmanlike and untimely manner. Specifically, the Stantons have not basis in fact” for their claims that Lassonde built their house in an

everything,” in the most literal sense. This argument misses the mark; it does

appeal, the Stantons do not refute the trial court’s conclusion that there is “no

Instead, the Stantons assert that Lassonde did not “take care of

They have also failed to show a valid legal excuse for withholding payment. On evidence or erroneous as a matter of law. denied their failure to pay Lassonde the amount due under their contract. that Lassonde did not, is supported by ample evidence. The Stantons never

parties’ written agreement.

contract action are binding upon us unless they are unsupported by the the trial court’s ruling that the Stantons breached the parties’ contract, and Poland v. Twomey, 156 N.H. 412, 415 (2007) (quotation omitted). In this case, unsustainable exercise of discretion. excuse[ ] to perform any promise which forms the whole or part of a contract.” “A breach of contract occurs when there is a failure without legal

does not require interpretation – as opposed to simple application – of the contract is a question of law we would review de novo, id. at 373, this appeal Developmental Servs., 155 N.H. 368, 371 (2007). While the interpretation of a

exercise of discretion standard). A trial court’s findings of fact in a breach of 180; see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable

unless the decision was made without evidentiary support or was an We will uphold a trial court’s ruling in an action for breach of contract

Inc., 121 N.H. 177, 180 (1981). N.H. 457, 460-61 (1992), with Automated Housing Corp. v. First Equity Asso’s, was supported by the evidence. Compare Guaraldi v. Trans-Lease Group, 136 evaluation of whether a trial court’s ruling in an action for breach of contract modifications to a contract is an entirely distinct undertaking from an notice of appeal. Id. An evaluation of the existence and enforceability of oral reported on by at least three newspapers, including the p. 6 Makeover: Home Edition,” in August 2005. His participation in the show was in Maine in conjunction with a reality television program, ABC’s “Extreme

purpose public figure because he helped construct a home for a disabled man concern was implicated. although they fail to reference with any specificity what matter of public appearances amounted to a “comment[ary] on matters of public concern,”

whether they acted with actual malice. actual malice, or, alternatively, for us to remand this case for an inquiry into public figures and requires them to prove actual malice.” latter subclassification of public figures. They claim Lassonde is a limited- negligence), whereas the [Federal] Constitution imposes a higher hurdle for

second homes in and around Pittsburg. The Stantons claim that these media figures. hits NH’s upper tip,” in which he briefly discussed an increase in demand for Lassonde was mentioned in an August 2005 Union Leader article titled “Boom Manchester’s WMUR television news. The Stantons also point out that Leader ordering society.”, the Berlin Daily Sun, and the Colebrook News and Sentinel, and by from defamatory falsehoods, given their assumption of “an influential role in New Hampshire Union

Lassonde is a private figure and for us to hold that Lassonde failed to prove

The Stantons ask us to consider only whether Lassonde falls into the succeed in defamation actions on a state-set standard of proof (typically,

between First Amendment freedoms and state defamation laws. Id. at 340; see Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). are public figures for all purposes; and (2) so-called limited-purpose public Court has established two subclassifications of public figures: (1) persons who

public figures have voluntarily exposed themselves to increased risk of injury brackets omitted). This distinction flows, in part, from a recognition that

in order to recover damages, taxonomy developed by the United States Supreme Court, private plaintiffs can

public or private status of an individual plaintiff in an effort to strike a balance of law, which we review de novo. See id. at 340. We accord significance to the Whether a defamation plaintiff is a public or private figure is a question

excluded evidence of newspaper and television publicity regarding Lassonde

accordingly, should have been required to establish actual malice on their part public figure,” Thomas v. Telegraph Publ’g Co., 155 N.H. 314, 341 (2007), who, defamation claim. They maintain that: (1) Lassonde was a “limited-purpose The remainder of the Stantons’ arguments on appeal relate to Lassonde’s

p. 7 difficulties); 7

controversy; only those whose homes had been burgled truly affected). “If the not direct participants.

energy crisis of 1970s),

controversy despite interest of some portion of public in such marital

segment of it in an appreciable way.”

342 (string of burglaries, even of a large number of homes, not a public attention because its ramifications will be felt by persons who are

manner in which United States oil industry responded to the rise of OPEC and Piro, 817 F.2d 762, 773-74 (D.C. Cir.) (public controversy existed concerning nation’s readiness to handle that threat a public controversy); Tavoulareas v.

Hatfill, 532 F.3d at 323-24 (threat from bioterrorism and the

U.S. 448, 454-55 (1976) (divorce of extremely wealthy individuals not a public Waldbaum, 627 F.2d at 1296 (citation omitted); cf. Time, Inc. v. Firestone, 424 must be a real dispute, the outcome of which affects the general public or some

public controversy is a dispute that in fact has received public controversies simply because they attract attention. Rather, a private concerns or disagreements do not become public The [United States] Supreme Court has made clear that essentially

public and not merely the litigants). 53 F. Supp. 2d at 503 (the implications of a public controversy will affect the

“A public controversy is not simply a matter of interest to the public; it

defamation.” Integrity, 387 F. Supp. 2d 20, 42-43 (D.D.C. 2005). individual’s participation in the particular controversy giving rise to the defines the bounds of his public presence, OAO Alfa Bank v. Center for Public because the scope of the controversy in which the plaintiff involves himself of issues.” formality,” Norris v. Bangor Pub. Co., 53 F. Supp. 2d 495, 503 (D. Me. 1999), 1996). “Identification of the implicated public controversy is not a mere 312, 322 (4th Cir. 2008); influence the resolution of the issues involved.” Copp v. Paxton, 52 Cal. Rptr. 2d 831, 844 (Ct. App. (1980); see Thomas, 155 N.H. at 341; Hatfill v. New York Times Co., 532 F.3d Publications, Inc., 627 F.2d 1287, 1296 (D.C. Cir.), cert. denied, 449 U.S. 898 must isolate the public controversy” in question. Waldbaum v. Fairchild “As the first step in [the limited-purpose public figure] inquiry, the court

Id. (quotation omitted).

purpose public figure determination by looking to the nature and extent of an

Id. (quotation and brackets omitted). “Courts make the limited-

(quotation omitted). “Then, they become [ ] public figure[s] for a limited range

thrust themselves to the forefront of particular public controversies in order to “[I]ndividuals may become limited-purpose public figures when they have construction by a contractor tasked with building a single-family residence.

p. 8 would have revealed nothing more than a single instance of substandard

have affected any person who is not a party to this lawsuit. The Stantons the Stantons had shown that Lassonde built a defective house, this would not figure. Given our holding that the Stantons’ argument to that effect failed would be felt by a segment of society at large in any appreciable way. Even if of the Stantons. He cannot be properly classified as a limited-purpose public

to have “thrust [himself] to the forefront of [a] particular public controvers[y],”

resolution of the issues involved.” failed to show that Lassonde turned to the media “in order to influence the related to the controversy in question here. In other words, they have also

posit, and we cannot conceive, how the effects of their dispute with Lassonde to damages on his defamation claim without showing actual malice on the part compelled an award of $30,000. We disagree. $10,000 on his defamation claim. He maintains that the evidence at trial dispute. In the context of this case, it was therefore not possible for Lassonde In his cross-appeal, Lassonde asks us to vacate the trial court’s award of

alleged defamation to determine whether [the plaintiff] thrust himself into IV

irrelevant. See N.H. R. Ev. 401. excluding evidence that Lassonde was a public figure. This evidence was initio, we also disagree with their secondary claim that the trial court erred by the Stantons have failed to even claim that Lassonde’s media appearances ab

at least a portion of the general public. We do not agree. The Stantons do not Accordingly, we affirm the trial court’s ruling that Lassonde was entitled this controversy had taken on such significance that its resolution would affect Lassonde a limited-purpose public figure, the Stantons necessarily argue that controversy; for the purposes of a defamation claim, this is a purely private controversy.”).

address the nature of the ‘particular public controversy’ that gave rise to the

purpose public figure consequently fails from the start. Moreover, we note that Thomas, 155 N.H. at 341, and the Stantons’ argument that he was a limited-

Stantons’ home in a workmanlike manner. Thus, when asking us to label As a result, we conclude that this matter does not present a public

is whether or not Lassonde performed on the parties’ contract by building the Here, the controversy that gave rise to the Stantons’ defamatory remarks

627 F.2d at 1297. ramifications for non-participants, it was a public controversy.” Waldbaum, flowing from the Stantons’ defamatory remarks. p. 9 Lassondes introduced no other concrete evidence of a lost business opportunity

and that she had “been working to get [her relationship with Belida] back.” The

She acknowledged that she had only been “hoping for a deposit” from Belida

whether that particular sale had been lost, she replied, “I’m still working on it.” statements. In fact, when she was asked by the trial judge to definitively state Construction had definitely lost Belida’s business as a result of the Stantons’

as harm to reputation. damages that would normally result from such defamation, such

Hampshire is a small business market and the defendants[ ] [made

special damages is required. The plaintiff is entitled to recover all

from the Stantons. We note that at trial, however, Lynn Lassonde, Mr. having been condemned – information he presumably could only have received special harm.”). emailed Lassonde in November 2006 with a query about the Stantons’ home proper conduct of his lawful business . . . is subject to liability without proof of geographic location in which Lassonde works. Pittsburg, New In awarding general damages the Court is mindful of the

The plaintiff is entitled to recover general damages and no proof of called libel defamation per se. See Chagnon, 103 N.H. at 441. Its order then stated: Here, the trial court correctly found that Lassonde had proven

Belida. Belida was a potential Mountain View Construction customer who ascribes to another conduct . . . that would adversely affect his fitness for the Restatement (Second) of Torts § 573 (1977) (“One who publishes a slander that 830 (1962). “He need not prove these damages specifically.” Id.; see Chagnon v. Union-Leader Co., 103 N.H. 426, 441 (1961), cert. denied, 369 U.S. normally result from such a defamation, such as harm to his reputation.”

per se, he can recover as general damages all damages which would

activities which would tend to injure him in his trade or business, commonly could find that the defamatory publication charged the plaintiff . . . with however, as is argued by the Stantons. “When as in this case, the [fact finder] This does not mean the trial court erred by awarding Lassonde $10,000,

based upon the claimed profit he would have earned on a contract with Ron

findings of the trial court unless they are unsupported by the record.

determination by the . . . trier of facts.”

Lassonde’s contention that the record supported an award of $30,000 is

Czumak, 155 N.H. at 371.

(1979) (brackets and ellipsis omitted). Again, we will not disturb the factual

damage, and, if he has, the nature and extent thereof, are questions of fact for “[Q]uestions of whether plaintiff has, in fact, sustained an injury or any and declined to enforce it.

p. 10 unable to determine “what the actual interest rate to be charged should be,” reasonable meaning for the disputed clause, and therefore find it unambiguous.

meaning,

balance.” The trial court found this clause ambiguous, stating that it was an additional finance charge of 15%-18% per annum added to the outstanding outstanding balance owed to him. Indeed, we can conceive of no other the completion of the project. Final payment not made as agreed may result in

in the context of contract interpretation. The Stantons propose no alternative

Lassonde’s discretion, interest in the range of “15%-18% per annum” on any terms of the parties’ contract. Their contract states: “Final payment is due at cf. id., for a clause which plainly states that they may be charged, at

This lack of precision does not create “ambiguity,” however, as that term is used the finance charge “may” be assessed, and a range of interest rates is articulated. ambiguous. To be sure, it does not set forth an absolutely certain consequence – We disagree with the trial court that the contract clause at issue here is

meaning. See id. exists only when the parties could reasonably disagree as to a clause’s be determined from the plain meaning of the language used.” Id. Ambiguity Assocs., 150 N.H. 595, 597 (2004). “Absent ambiguity, the parties’ intent will reading the document as a whole.” Gen. Linen Servs. v. Franconia Inv. maintains that the Stantons were obligated to pay such interest under the circumstances and context in which the agreement was negotiated, when give the language used by the parties its reasonable meaning, considering the novo. Czumak, 155 N.H. at 373. “When interpreting a written agreement, we provided by statute as a component of his breach of contract award. The interpretation of a contract is a question of law that we review de

supported by the record. appellate argument, that these factual findings on general harm are not commencement of action on a debt in the absence of prior demand). He 336:1 (Supp. 2007); see also RSA 524:1-a (2007) (interest awarded from

denying his request to include pre-judgment interest at a rate higher than that that the plaintiff is entitled to damages for defamation We next address Lassonde’s argument that the trial court erred by

592 (2003). Seeing no legal error, we affirm the trial court’s award.

We decline to address the Stantons’ bald contention, made without adequate

award[s] him damages in the amount of $10,000.

business opportunities. Accordingly, the Court finds and rules a] purposeful and willful attempt to interfere with Lassonde’s attorney’s fees nor the context in which they will be awarded.

p. 11 relied upon by the plaintiff neither defines the nature of the attorney’s fees and costs incurred for collection. The language attorney’s fees and costs includes words such as reasonable 11

fees is DENIED.

clear. The contract language generally permitting awarding of

accordingly, the Motion for Clarification, as it relates to attorney’s ambiguous with respect to the collection of attorney’s fees and The Court finds and rules that the contract language is collections [ further offer that the clause could be read to mean that Lassonde “can file for to file a mechanical [ relies upon the following contractual provision: “Contractor reserves the right provision . . . affords the contractor the costs, interests, and fees objection to the imposition of fees filed with the trial court, maintain that “[t]he with fees paid for his entire collection action, the Stantons, as stated in their The language p. 11 relied upon by the plaintiff is not specific or

sort of a fee award to Lassonde, the trial court made the following order: Despite the Stantons’ concession that the contract contemplates some figure employed on remand. imposition of an interest rate higher than fifteen percent, that shall be the may also file for interest and attorney’s fees.” recalculation of his award. Since Lassonde makes no demand for the sic] costs, regardless of whether there is also a filing for a lien, and

enforcing a mechanic’s lien.” We note that in their reply brief the Stantons

Lassonde argues that this provision entitled him to an award commensurate at 597. The parties attach different reasonable meanings to the clause: while language Lassonde relies upon is ambiguous. See Gen. Linen Servs., 150 N.H. In this instance, we agree with the trial court’s ruling that the contract

fees.” entitled to an interest assessment at the statutory rate, and remand for a any portion of the unpaid balance plus collection costs, interest and attorney’s

Because the Stantons agreed to such a charge in writing, it is enforceable. Lassonde also argues, again based upon the terms of the parties’

vacate that portion of the trial court’s order stating that Lassonde was only Albee v. Wolfeboro Railroad Co., 126 N.H. 176, 180 (1985); see RSA 336:1. We

the Stantons pay pre-judgment interest at a rate of “at least” fifteen percent. Accordingly, we agree with Lassonde that he was entitled to insist that p. 12 12

issue. stemming from any claim of bad faith.” Accordingly, we decline to address this motion, “[would] not [have been] a discretionary function of the Court

fact, we observe that Lassonde’s perceived “entitlement” to fees, as stated in his

the trial court that the exact nature of the proper fee award ( clearly contemplates an award of some attorney’s fees, although we agree with DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

him attorney’s fees under the rule of

fees, as well as the remainder of the record, reveals that he failed to do so. In review of Lassonde’s post-trial motion for clarification regarding an award of ambiguities.”). requested an award under Harkeem below. See id.; Sup. Ct. R. 16(3)(b). Our defaulted on their contractual duty to pay. We find, instead, that the contract particular question, Lassonde bore the burden of demonstrating that he Dent v. Exeter Hosp., 155 N.H. 787, 794 (2007). As the appellant on this objective standard, mutually understood the ambiguous language to mean”); issue for our review, because he failed to raise it before the trial court. See We agree with the Stantons, however, that Lassonde failed to preserve this their contract. (1977) (litigation conducted in “bad faith” may justify award of counsel fees). proceedings to discern the intent of the parties when adding the fee clause to Harkeem v. Adams, 117 N.H. 687, 690-91 order denying Lassonde attorney’s fees altogether, and remand for further Finally, Lassonde argues that the trial court erred by failing to award

determines that ambiguities are present, it must . . . resolve those interpreted, as a matter of law, to deny Lassonde fees altogether if the Stantons MacLeod v. Chalet Susse Int’l Inc., 119 N.H. 238, 243 (1979) (“If . . . the court

found to be ambiguous, “it must be determined what the parties, under an

See Gen. Linen Servs., 150 N.H. at 597 (if contractual language

requires clarification. Accordingly, we vacate that portion of the trial court’s mere filing of a mechanic’s lien, or fees for Lassonde’s entire collection action)

This ruling was erroneous; the contract clause in question cannot be

Lassonde to any type of fee award. In short, the trial court effectively ruled that the disputed clause did not entitle