2006-943, JAY C. EDWARDS v. RAL AUTOMOTIVE GROUP, INC. & a.

LLC and James G. Boyle. John Kuzinevich, of Dover, Massachusetts, by brief and orally, for Minato Auto, Boyle Law Office P.L.L.C., of Plymouth (John F. Boyle on the brief), and

brief and orally), for Jay C. Edwards. Shaines & McEachern, P.A., of Portsmouth (Robert A. Shaines on the

to press. Errors may be reported by E-mail at the following address: JAY C. EDWARDS & a.

editorial errors in order that corrections may be made before the opinion goes No. 2006-943 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. 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 p. 2 22 as 2

had with Edwards. agreement between RAL and Minato purporting to assign Minato the lease RAL transaction. Among the agreements executed in September p. 2 2001 was an Portsmouth, NH . . . . Boyle entered into multiple agreements intended to facilitate the closing of this the Premises commonly known as 3612 Lafayette Road, “Lease”) and all of . . . [RAL’s] rights, title and interests in and to and . . . Edwards dated July 28, 1997 (the “Landlord” and the lease and Option to Purchase entered into by and between [RAL] [RAL] hereby assigns, transfers and sets over unto [Minato] the Net “[a]ny attempted assignment . . . except as permitted by this 1. Assignment. Pursuant to the terms of the Asset Agreement, consent, [RAL] shall remain primarily liable hereunder.” It also stated that whether made with the consent of [Edwards] or not requiring [Edwards’] LEASE AND LEASEHOLD INTERESTS,” included the following provisions:

sell the assets of the dealership to Boyle. In September p. 2 2001, RAL, Minato and In February 2001, RAL entered into a purchase and sale agreement to

shall be void.”

lease further provided: “Notwithstanding any subletting or assignment, consent shall not be unreasonably withheld or delayed.” This provision of the pledge this Lease . . . without the prior written consent of [Edwards], which Section 4. p. 2 2.1 of the lease, RAL agreed “[n]ot to assign, transfer, mortgage or RAL Automotive Group v. Edwards, 151 N.H. 497, 497 (2004) (RAL I). In dealership and leased the dealership property to RAL for a twenty-year term. which he previously operated a Toyota franchise. In 1997, he sold his Toyota The record reveals the following: Edwards owns land in Portsmouth on

that RAL was ordered to pay Jay C. Edwards. We reverse and remand. indemnify RAL Automotive Group, LLC (RAL) for breach of contract damages Boyle, appeal the order of the Superior Court (Morrill, J.) requiring them to DALIANIS, J. Minato Auto, LLC (Minato) and its principal, James G.

and David Gale, joined in the brief of Jay C. Edwards.

William S. Gannon, P.L.L.C., of Manchester, for R. Anthony Laughrey

Edwards.

DiLorenzo and RAL Automotive Group, Inc., joined in the brief of Jay C.

Sakellarios & Associates, of Manchester, for Richard Pepi, George P. accordance with the terms of the Purchase and Sale Agreement

amended by written agreement signed by the parties. “Portsmouth Toyota Agreement” dated February 16, 2001 or as accrue from or after the date of this Assignment. Purchase and Sale Agreement commonly referred to as the termination of [RAL’s] operation of Portsmouth Toyota in the date of the closing in accordance with the terms of the

arising from, out of or under the Lease or the Premises which Toyota prior to the closing and transfer of assets and the which relate to the operation of Portsmouth Toyota from and after or similar obligation arising out of the operation of Portsmouth suffer as a result of [any] claim, demand, cost, expenses, judgment any liability, loss, damage, or claim which [Minato and Boyle] may hold harmless and indemnify and defend [Minato and Boyle] from

In turn, RAL agreed to:

Minato would: indemnity agreement. Under this agreement, Minato and Boyle agreed that

against any loss, liability or damage of any nature whatsoever shall defend, indemnify and hold [RAL] . . . harmless of, from or Boyle] pursuant to the Portsmouth Toyota Sales Agreement or obligations under a certain escrow agreement. Further, [Minato] arising out of all contracts or obligations assumed by [Minato and claim, demand, cost, expense, judgment or similar obligation loss, damage, or claim which [RAL] may suffer as a result of any hold harmless and indemnify and defend [RAL] from any liability,

agreement to Minato. In addition, Minato, Boyle and RAL entered into a cross- As part of the closing, Boyle assigned his interest in the purchase and sale

consent. to obtain without recourse to [RAL] if [Minato] cannot obtain accepts the risk that he may not, as long as [RAL] satisfies [RAL’s] upon [Edwards’] consent which is the sole responsibility of [Minato] any terms of [Edwards’] consent, the Assignment shall be effective 7. Consent. As a condition of this Assignment and subject to

. . . .

has not yet provided written consent to this assignment and and conditions of the Lease. [Minato] acknowledges that Edwards [RAL’s] financial liabilities and other obligations under the terms and agrees to completely and punctually pay and perform all of 2. Assumption of Lease Liabilities. [Minato] hereby assumes p. 4 4

Hollman

became a tenant at will upon taking possession of the premises. “RAL remains the tenant under the Lease,” but that in RAL’s absence, Minato per the clear and unambiguous terms of the Lease.” Accordingly, it ruled that findings, the trial court determined that the assignment agreement was “void

lack of consent, it is arguable that this provision of the [assignment agreement] The court observed that “given there was no valid assignment due to Edwards’ assignment agreement in which Minato agreed to accept the premises “as is.” rejected RAL’s argument that this claim was barred by paragraph three of the With respect to Minato’s claim for damages against RAL, the trial court

Edwards acted reasonably in withholding his consent. Based upon these consent; (3) Edwards never consented in writing to the assignment; and ( p. 4 4) assignment and cross-indemnity agreement into which it entered with Minato. assignment agreement provided that it would be effective upon Edwards’ connection with the lease into which RAL entered with Edwards and the lease written consent was required for any assignment of the lease; (2) the determine the duties, rights and financial obligations of the parties in court found that: (1) under the “clear and unambiguous” lease, Edwards’ prior assignment of the lease from RAL to Minato was void. Id. Specifically, the In April 2003, the Superior Court (, J.) ruled that the purported

and (2) who was financially liable for defaults under the lease. premises and began operating Toyota of Portsmouth. before the trial court were: (1) who the current tenants were under the lease; and Minato closed their transaction, and Minato took possession of the from RAL for breach of contract and misrepresentation. Among the issues obligations as against RAL and Edwards and counterclaimed, seeking damages See id. Minato and Boyle cross-petitioned to determine their rights and

In November 2001, RAL brought a declaratory judgment action to

to sign the assignment agreement, he refused. See id. On or about September 10, 2001, Edwards learned of the closing. When asked assignment of lease. RAL I, 151 N.H. at p. 4 498. the parties except for any refusal of Edwards to consent to the had not yet consented in writing to the assignment. Nonetheless, RAL, Boyle The closing occurred on September 5, 2001. As of that date, Edwards

Agreement to Minato Auto, LLC.” RAL . . . to Minato Auto, LLC shall continue and survive his assignment of the Agreement for Purchase and Sale of Assets . . . , entered into by and between agreed that: “his financial liabilities and obligations under Paragraph 19 of the Boyle also signed an “ACKNOWLEDGEMENT OF OBLIGATIONS” in which he

February 16, 2001, or as amended by written agreement signed by commonly referred to as the “Portsmouth Toyota Agreement” dated p. 5 5

damages of $1,249,439, plus attorney’s fees and costs. received and reduced to present day value.” The court awarded Edwards total

valid. We agree. (1997). the trial court erred when it ruled that paragraph two of this agreement was purpose of the trial court’s decree. Bonneville v. Bonneville, 142 N.H. 43 p. 5 5, 438 that the 2003 decision voided the entire assignment agreement and, therefore, decree). We construe subsidiary clauses so as not to conflict with the primary another ten years of lease payments less reasonably anticipated lease income Estate of Tremaine v. Tremaine, 146 N.H. 674, 676 (2001) (construing divorce judgment, “we look to the plain meaning of the words used in the document.” Frederick v. Frederick, 141 N.H. 530, 531 (1996). In construing a final documents, is a question of law, which we review de novo. See Estate of interpretation of final judgments, like the interpretation of other written judgment. See In re Estate of Hemon, 142 N.H. 584, 587-88 (1998). The As the trial court’s 2003 decision was not appealed, it became a final

to apply and enforce the unambiguous terms of its 2003 decision. They assert court ruled that pursuant to the lease with RAL, Edwards was “entitled to On appeal, Minato and Boyle contend that the trial court erred by failing that Edwards made reasonable efforts to mitigate his damages. Moreover, the for this unpaid rent as the tenant under the lease. The court further found indemnify RAL for all amounts RAL owed Edwards. Edwards received, totaled $787,8 p. 5 57.57. The court ruled that RAL was liable court had voided in 2003. Accordingly, the court ordered Minato and Boyle to not void, but was severable from paragraph one of the agreement, which the RAL, the court decided that paragraph two of the assignment agreement was With respect to whether Minato and Boyle were required to indemnify

valid[,] [and] [t]herefore, its provisions are not binding on RAL or Minato.” written or otherwise, the court finds and rules that the Assignment is not no rent had been paid. The unpaid lease obligations, less rental income that paid rent, but that after Minato vacated the premises on December 31, 2003, the lease, the court found that while Minato remained on the premises it had and Boyle owed RAL indemnification. With respect to RAL’s obligations under (Morrill, J.) ruled that RAL owed Edwards rent under the lease and that Minato indemnification. Following a bench trial in August 2006, the Superior Court shareholders brought a third-party claim against Minato and Boyle for shareholders to recover sums owed under the lease. In response, RAL and its In August 2003, Edwards brought an action against RAL and its

the assignment agreement] and because Edwards did not provide his consent, is not binding on Minato.” The court then ruled: “Given the . . . language [of p. 6 6

the purchase and sale of assets.

paragraph two of the assignment agreement remained valid. one paragraph of it. Accordingly, the trial court erred when it later ruled that

void. acknowledgement of obligations, which Boyle signed as part of the closing for Specifically, he points to the parties’ cross-indemnity agreement and the Minato and/or Boyle to indemnify RAL for amounts owed under the lease. have been void, other agreements into which the parties entered required Edwards asserts that even though the entire assignment agreement may finds and rules that the Assignment is not valid. Therefore, its “because Edwards did not provide his consent, written or otherwise, the court

order, we hold that it voided the entire assignment agreement, rather than only Based upon our review of the plain meaning of the trial court’s 2003

the court was deciding that paragraph three of the assignment agreement was paragraph one of the assignment agreement. Indeed, in this part of the order, “provisions” is further evidence that the court intended to void more than just not binding on RAL or Minato.” (Emphasis added.) The use of the plural

not only its first paragraph. The trial court made this clear when it stated that and unambiguous terms of the Lease,” it was referring to the entire agreement, Assignment.” When the court ruled that “the Assignment is void per the clear describes the agreement first by its title and then by the phrase “the court’s order refers to the assignment agreement as a whole. The court the entire assignment agreement, not merely its first paragraph. The trial Under the plain meaning of the trial court’s 2003 order, the court voided

399 F.3d at 423; Simburger v. Simburger, 701 N.W.2d 880, 883 (N.D. 2005). one trial judge is interpreting an order of another trial judge. See Spallone, (quotation and brackets omitted). This is particularly the case where, as here, Universal Assurors Life v. Hohnstein, 500 N.W.2d 811, 814 (Neb. 1993) as determined from the four corners of the decree is what is relevant.” any relevance. What the decree, as it became final, means as a matter of law what the judge thought he or she meant, after time for appeal has passed, is of 470-71 (Neb. 1990). “Neither what the parties thought the judge meant nor Trust, 477 F.3d p. 6 616, 620 (8th Cir. 2007); Kerndt v. Ronan, 458 N.W.2d 466, Judgments § 534, at 93 (1997); see First Union Nat. Bank v. Pictet Overseas appellate court’s determination of the judgment’s meaning. 50 C.J.S. trial court’s post-judgment interpretation of the judgment is irrelevant to an deference on appeal, after the time for appeal from a judgment has passed, the omitted). While a trial court’s construction of its own decree may be accorded construed with reference to the issues it was meant to decide.” Id. (quotation (citing cases). “As a general matter, a court decree or judgment is to be the issuing court. United States v. Spallone, 399 F.3d 415, 424 (2d Cir. 2005) When we interpret court orders, the determining factor is the intent of agreement. p. 7 included in the list of contracts assumed pursuant to the purchase and sale obligations or agreements.” The lease between RAL and Edwards was not [Boyle] shall not assume, pay, perform, or discharge any such debts, liabilities, agreement of [RAL] . . . incurred either before, at, or after the closing . . ., and assume, discharge or be liable for any debts, obligations, liabilities or

understood by the parties hereto that [Boyle] has not assumed and will not

indemnification for amounts owed under the lease with Edwards. acknowledgement of obligations is silent as to any right that RAL might have to Minato” without first commencing an action against Minato. The

that “[e]xcept as set forth on Exhibit 4 attached hereto, it is agreed and Further, paragraph four of the purchase and sale agreement specifically stated assumed pursuant to it, the lease between RAL and Edwards was not listed. and sale agreement listed as an exhibit all of the contracts that Minato

RAL’s obligations under the lease pre-date the closing and, while the purchase

“shall be primary” and that to enforce its rights under the agreement, RAL Boyle and Minato, Boyle’s liability under the purchase and sale agreement Boyle assert that the trial court’s order on the merits was barred by res with Edwards. To the contrary, this agreement stated only that as between address the remaining arguments of Minato and Boyle. Although Minato and owed under the lease with Edwards. In light of this decision, we decline to erred by imposing upon Minato and Boyle a duty to indemnify RAL for amounts For all of the above reasons, therefore, we conclude that the trial court

the operation of Portsmouth Toyota from and after the date of the closing.” Boyle] pursuant to the Portsmouth Toyota Sales Agreement or which relate to obligation arising “out of all contracts or obligations assumed by [Minato and

require Minato and Boyle to indemnify RAL for amounts owed under the lease Similarly, by its plain terms, the acknowledgement of obligations did not

indemnify RAL only for those losses that RAL might suffer as a result of any

not support Edwards’ argument.

By its plain terms, the cross-indemnity agreement obliged Minato to

the cross-indemnity agreement and the acknowledgement of obligations does plain meaning of the language used in the contract. Id. The plain meaning of 197 (2006). Absent ambiguity, the parties’ intent will be determined from the whole. Ryan James Realty v. Villages at Chester Condo. Assoc., 153 N.H. 194, context in which the agreement was negotiated, and reading the document as a the parties its reasonable meaning, considering the circumstances and the (2006). When interpreting a written agreement, we give the language used by novo. Barclay Square Condo. Owners’ Assoc. v. Grenier, 153 N.H. 514, 517 The interpretation of a contract is a question of law, which we review de p. 8 8

to Edwards.

their remaining arguments, which concern the trial court’s award of damages

indemnify RAL for amounts due under the lease, they lack standing to raise Moreover, as we have ruled that Minato and Boyle have no obligation to agreement despite RAL’s alleged failure to comply with a condition precedent.

DUGGAN and HICKS, JJ., concurred.

Cf. Silver Brothers, Inc. v. Wallin, 122 N.H. 113 p. 8 8, 1140 (1982).

whether the trial court erred by enforcing paragraph two of the assignment judicata and/or collateral estoppel, this issue is now moot. Also moot is