2011-746, The Sunapee Difference, LLC v. The State of New Hampshire

The plaintiff, The Sunapee Difference, LLC, appeals: (1) an

attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Richard W. Head, associate

and orally), for the plaintiff.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as or attached to the Lease.

p. 2 leasehold or map showing its metes and bounds had been provided to Sunapee

leasehold premises. At the time of signing, however, no legal description of the the State, through DRED, would complete a metes and bounds survey of the Lease on May 4. Sunapee and Thomson had previously agreed in writing that

April 30, 1998. Senior Assistant Attorney General Michael Walls approved the

negotiated a Lease and Operating Agreement (the Lease), which they signed on Commissioner Robb Thomson and Sunapee president Timothy Mueller Sunapee submitted its proposal, which the State accepted. DRED

northern and western boundaries.

agents of the State, that the leased premises extended to the state park’s shown. Sunapee alleges that it understood, based upon representations by leased was depicted as a shaded area; the state park boundaries were not Representatives from Sunapee’s predecessor, Okemo Mountain Resort, Inc., operators, interested parties, and the public an opportunity to comment.

of Mount Sunapee State Park showing the existing ski area. The property to be

In October 1997, the State released a draft RFP, giving prospective

the Governor and Executive Council.” Included with the RFP was a partial map unless and until it is approved by the Capital Budget Overview Committee and contract resulting from this RFP, it shall not be final or binding upon the State Sunapee ski area. Laws 1997, ch. 119. things, “a lease, concession agreement, or management contract” for the Mount

recommends the award of a lease, concession agreement or management

legislative committee, to develop a request for proposals (RFP) for, among other

submission by April 1, 1998. The RFP stated that “[i]f the Commissioner On January 15, 1998, the State issued the final RFP, requiring proposal legislature directed the commissioner of DRED, in consultation with a joint at Mount Sunapee State Park. RSA 12-A:29-a (2003). The next year, the and Economic Development (DRED) to draft an agreement to lease the ski area

Okemo as well as The Sunapee Difference. as having been the party in interest all along and use the name Sunapee in this opinion to refer to title, and interest therein to The Sunapee Difference. For ease of reference, we will treat Sunapee 1 At some point after the lease agreement at issue was executed, Okemo assigned all of its right,

submitting a proposal.

1996, the legislature authorized the New Hampshire Department of Resources

mandatory informational meeting held a week later for operators considering

State’s motion for summary judgment, or are supported by the record. In The following facts were assumed by the trial court in ruling on the

attended both a public hearing on the RFP on November 12, 1997, and a

vacate in part, and remand. standing to bring its reformation claim. We affirm in part, reverse in part, p. 3 DRED. He imposed additional conditions, which Sunapee also met.

Craig Benson was Governor. In 2004, Sean O’Kane became commissioner of

presented to the Governor and Council while Bald was commissioner and while Although Sunapee met Bald’s conditions, the expansion plan was not

options for $2.1 million.

Sunapee satisfied his enumerated conditions, Sunapee exercised the purchase Bald’s assurances that he still favored the western expansion plan as long as options on land adjacent to the state park would soon expire. Based upon

conditions. Around this time, Sunapee informed the State that its purchase

Governor and Executive Council only after Sunapee met three enumerated DRED, announced that he would recommend such a lease amendment to the On February 27, 2002, George Bald, who was then commissioner of

approve inclusion of the buffer land in an amendment to the Lease.

buffer land in the leasehold. Accordingly, Sunapee requested that DRED however, this land could not be used for expansion without including the state park boundaries were not described as coterminous in the Lease,

bordering the western boundary of the state park. Because the leasehold and

In 2000, Sunapee obtained options to buy privately-owned land

expansion. At that point, expanding to the west became the only viable option.

however, when old growth forest was discovered in the area of its proposed

itself developed but had never implemented. Sunapee’s plans were thwarted, provided prospective operators with eastern expansion plans the State had the ski area to the east. During the RFP pre-submittal stage, the State

From the time it responded to the RFP, Sunapee had proposed expanding

amended. amending the Lease between January and April 2001, the Lease was never error. Nevertheless, while Nostrand and Walls exchanged proposals for

amended to correct it. Director of Parks Richard McLeod also acknowledged an

Walls, who agreed that an error had been made and suggested the lease be of the state park. Sunapee’s attorney, George Nostrand, contacted Attorney leasehold boundaries described in the Lease were not coterminous with those

Sometime in 2000, Sunapee discovered that the northern and western

Council approved it on June 10, 1998. were appended to the Lease when Governor Jeanne Shaheen and the Executive

between the park boundaries and leasehold boundaries. Those documents

northern and western boundaries of the state park, but rather left a buffer area leased premises as described in those documents did not extend to the property description with the metes and bounds of the leasehold area. The

Sometime after that date, but prior to June 10, the State produced a map and The Capital Budget Overview Committee approved the Lease on May 14. p. 4 I. Standing

judgment are currently before us. accepted. Accordingly, the standing issue and all issues decided by summary the right to assert its reformation claim. The State filed an appeal, which we

Sunapee and therefore did not bar any of its claims; and (2) Sunapee retained

State contained in the assignment to CNL (the Release) did not apply to On remand, the trial court ruled that: (1) a release of claims against the

standing as to all counts, while otherwise retaining jurisdiction of the appeal.

with respect to the reformation claim, we remanded for a determination of

factual finding by the trial court. Although the State challenged standing only insufficient for us to determine the issue as a matter of law, we remanded for a issue. Furthermore, because standing is a question of fact and the record was

jurisdictional, we declined to proceed with the appeal without a finding on the

lacked standing to seek reformation of the Lease. Because standing is In its response in that appeal, the State again asserted that Sunapee

had standing to seek reformation of the Lease. Sunapee appealed.

The trial court granted that motion, assuming, without deciding, that Sunapee reformation claim. The State also moved for summary judgment on all claims. Income Mount Sunapee, LLC (CNL), and, therefore, lacked standing to bring a

Sunapee had assigned all of its right, title and interest in the Lease to CNL

The State moved to strike the reformation claim on the ground that

amended bill of complaint, adding a reformation count, in December 2008. of complaint to add a claim for reformation of contract. Sunapee filed its

was dismissed without prejudice and Sunapee was given leave to amend its bill

outside the boundaries of [Sunapee’s] original lease.” The mandamus claim reformation of the lease, and thus has conceded that Sunapee has standing as claim and so much of the inverse condemnation claim as concerned “land moved to dismiss, which the trial court denied except as to the mandamus

appealed only the trial court’s finding that Sunapee has standing to seek covenant of good faith and fair dealing, and inverse condemnation. The State

We begin with the issue of standing. As Sunapee notes, the State has mandamus relief, alleging breach of contract, estoppel, breach of an implied In October 2007, Sunapee sued the State for damages or, alternatively,

amendment before the Executive Council.

expanding the leasehold. Governor Lynch, however, refused to bring the recommended that the State conditionally approve a lease amendment Commissioner O’Kane to reject the plan, but O’Kane nevertheless

opposed Sunapee’s plan for expansion. Once in office, Governor Lynch urged John Lynch became Governor in 2005. While campaigning, he strongly p. 5 Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194, 195 (2008) (quotation

privity of estate, so long as the lessee retains the term.” The Trustees of the party suffered a legal injury against which the law was designed to protect.” “Between the lessor and the lessee there is both privity of contract and “In evaluating whether a party has standing to sue, we focus on whether

privity of contract.” La Société v. Owen, 79 N.H. 318, 319 (1919) (quotation The lessee still continues liable on his covenant [to pay rent] by virtue of the

that relationship. reformation that Sunapee may have had, released those claims.

between them, created by the lease, which is not affected by the assignment.

relationship between the parties to a lease, and the effect of an assignment on to seek its material reformation”; and (2) CNL, having acquired any claim for CNL[,] . . . is no longer a party to the Lease, and . . . [therefore] lacks standing (1) Sunapee, having “assigned all of its right, title, and interest in the Lease to between lessor and lessee, but “there still remains the privity of contract

substitution or release.” Machinist, 82 N.H. at 253. The assignor “remain[s] liable for the rent in the absence of novation, non-party to a contract has no remedy for breach of the contract,” Arlington omitted). This is true even where the lessor assents to the assignment. Id. The State’s first argument appears to rest on the “general rule that a parties and those in privity). We pause, then, to consider the nature of the

in privity of contract. Cf. Robo Sales, Inc. v. McIntosh, 495 S.W.2d 420, 423 finding that Sunapee has standing to pursue the reformation claim because: N.H. 249, 252 (1926). Such an assignment terminates the privity of estate his entire interest constitutes an assignment.” Machinist v. Koorkanian, 82 Dartmouth College v. N. Clough, 8 N.H. 22, 28 (1835). “A grant by the lessee of

(Mo. 1973) (noting that court of equity will reform a lease as between original

completely terminate [its] privity with the State,” and asserts that it still stood CNL and not to Sunapee. Nevertheless, it argues that the trial court erred in a form of contract). Sunapee counters that “[t]he assignment did not On appeal, the State concedes that the Release language applies only to Lease.” See Tulley v. Sheldon, 159 N.H. 269, 272 (2009) (noting that a lease is the assignment to CNL, “Sunapee Difference [was] no longer a party to the rule, no right to reform the contract. Thus, the State first asserts that following Trust Co. v. Estate of Wood, 123 N.H. 765, 767 (1983), and, by analogy to that

192, 199 (2010). evidence or is legally erroneous. Birch Broad. v. Capitol Broad. Corp., 161 N.H. based upon a lack of standing unless that decision is not supported by the omitted). We will uphold the trial court’s ruling on a jurisdictional challenge

the reformation claim only. to its other claims. We therefore consider Sunapee’s standing with respect to p. 6 Butler v. Walker Power, 137 N.H. 432, 435 (1993) (quotations and citation

the claim by [Sunapee] with respect to the leasehold boundary).” Finally, it

as a whole. thereby, together with all the provisions of their agreement taken at the time of their agreement and the object that was intended

[the State] or [Sunapee] under the Lease Agreement, . . . (excepting therefrom there are no existing claims, defenses or offsets against obligations of either represent and warrant to CNL that “[a]s of the date of this Assignment: . . . (iii)

interpreting a contract, we will consider the situation of the parties

in which Sunapee and the State (joining in the assignment for this purpose)

the interpretation that best reflects the parties’ intentions. In court to decide. In reviewing a contract, we will give its language [T]he meaning of a contract is ultimately a matter of law for this

the ongoing litigation between Sunapee and the State in an estoppel provision, subject to the terms and conditions of the Lease Agreement.” It then references of [Sunapee’s] right, title and interest in, to and under the Lease Agreement, 6

We have held:

right of action in Sunapee. the rent, or the times and mode of its payment.” Cole v. Lake Company, 54 reform the instrument in a particular in no way connected with the amount of

consequence in the absence of an indication of contrary intent, cf. National right to sue for reformation. It first provides that Sunapee assigns to CNL “all

cause of action for . . . reformation.”), the parties here contracted to keep the

any decree that can be made upon this bill [in equity], which is brought to

other words, notwithstanding what otherwise may have been the legal The assignment here does not explicitly state that Sunapee retains the

omitted).

. . . the assignment of a contract passes from assignor to assignee an accrued

covenant to pay rent, “that liability will remain unchanged and unaffected by property. While Sunapee, through privity of contract, remains liable on its standing to reform the lease with respect to the description of the leasehold Sunapee specifically reserved its rights in the litigation against the State.” In Nevertheless, the trial court found that “[i]n assigning the lease to CNL,

“[a]n unqualified assignment . . . with no indication of the intent of the parties, Reserve Co. v. Metropolitan Trust Co., 112 P.2d 598, 602 (Cal. 1941) (Given

privity of contract with the State. This does not, however, afford Sunapee As the foregoing makes clear, Sunapee is correct in claiming continued

to reform a lease). N.H. 242, 272 (1874) (finding assignors were not necessary parties in an action assign to CNL.” Specifically, in that letter, Associate Attorney General Anne

p. 7 written explanation regarding what the Sunapee Difference is proposing to

assignment, the State requested information from Sunapee, including “[a] On October 29, 2008, during the course of negotiations over the

support for the trial court’s ruling on the standing issue.

purchase agreement, however, to determine that the record contains ample “not an important part of the [a]ssignment.” We need not rely upon the asset document was deleted from the assignment, that the purchase agreement was

agreement and the object that was intended thereby,” Butler, 137 N.H. at 435

purchase agreement and was assured by Nostrand, after all reference to that

Consideration of “the situation of the parties at the time of their

release from the assignee, CNL, without reference to Sunapee’s interest.”

The State notes, however, that it was never provided a copy of the asset intent between Sunapee and CNL to leave the chose in action with Sunapee. Sunapee arising out of the Sunapee Lease Litigation,” thus clearly evincing the

acknowledged Sunapee’s reservation of the claim when the State “required the

excluded from the assets conveyed to CNL “[a]ny monetary judgment in favor of

absence from the release provision, as do we. The court found that the State

The asset purchase agreement between Sunapee and CNL specifically

the State now concedes as much. The trial court also found telling Sunapee’s CNL releasing its right to pursue the underlying matter” and, as noted above, The trial court found that “[t]he effect of [this] language clearly refers only to 7

sublease of the premises back to Sunapee. contemplated transaction would involve an assignment of the Lease to CNL and

with respect to other matters not currently known or existing. leasehold boundary; provided, however, Assignee retains all rights may be brought by [Sunapee] relating to reformation of the

deposition was common in the ski industry. Sunapee stated that the

No. 07-E-458, including any potential claim that could have or

“a sale and leaseback[,] . . . a form of financing” that Nostrand testified at his 1.5 Release by Assignee [CNL]. Assignee releases and forever the State’s approval of the assignment, Sunapee described the transaction as (quotations omitted), further supports the trial court’s conclusion. In seeking

State of New Hampshire, Merrimack County Superior Court Docket matter of the lawsuit known as The Sunapee Difference, LLC v. claims of [Sunapee] against the [State] relating to the subject

explicitly: contains a release that, in its final form, mentioned the reformation claim

damages, relief, judgments, or the like relating to or resulting from discharges [the State] from any and all claims, demands, benefits, that agreement and recognize Sunapee as the real party in interest. Cf.

p. 8 Sunapee’s hands, we must now determine whether the law will countenance that the parties intended and agreed to keep the reformation claim in This conclusion does not end our inquiry, however. Having determined

reformation claim against the State, and that the State acquiesced thereto. the record demonstrates that the State knew Sunapee intended to retain its Sunapee would not be willing to openly waive its lawsuit.” We conclude that

Sunapee to join the release and Edwards admitted that the State “knew that

reformation claim against the State.” Nevertheless, the State did not require claims to make sure that Sunapee Difference had no ability to bring a language was to make sure that CNL waived any claims and any potential

the lease. Edwards testified at her deposition that “[t]he intent in offering this

Blenkinsop proposed release language that included claims for reformation of

On December 2, 2008, Senior Assistant Attorney General Anthony

request for reformation.”

liable under its covenant to pay rent. See Cole, 54 N.H. at 272. Thus, when a

that was out there” because “the request for mandamus was essentially a

lease with respect to the property interest conveyed, even though it remains As noted above, ordinarily a lessee/assignor retains no interest in the

Accordingly, Edwards knew at the time that reformation “was a potential claim a claim for reformation, but neither had its mandamus claim been dismissed. nothing additionally to assign.” At the time, Sunapee had not yet moved to add

matter, they . . . merely give the State the right to act as a nominal party”).

Court, in Staples, explained the rule as follows: “The underlying logic of this (E.D.N.Y. Mar. 30, 2007) (discussing New York law). The United States District addressed in the pending lawsuit. All parties are aware that there is presently W.J.R. Associates, No. 04 CV 904 (SJ) (KAM), 2007 WL 1039535, at *2 standing in an action predicated upon a breach of that lease.” Staples, Inc. v. lessee “assigns all of its rights, title and interest under a lease, it cannot assert

requisite injury and “[e]ven if the assignments are valid as a contractual equitable actions under ERISA, did not have standing where State did not have 2002) (finding that State, as assignee of plan participants’ rights to bring Connecticut v. Physicians Health Services of CT, 287 F.3d 110, 118 (2d Cir. described leasehold and is not intended to deal with any of the issues Nostrand replied that the “[a]ssignment only affects the existing

pending lawsuit. . . . the Sunapee Difference [was] planning to assign and/or do with the

June 10, 1998.”

leasehold boundary and issues of expansion” and inquired as to “[e]xactly what Edwards referenced Sunapee’s ongoing “litigation against the State over the

an assignment of the lease approved by the Governor and Executive Council on

” Edwards wrote that “[u]ltimately, the State can only agree to standing to sue. Cf. Birch Broad., 161 N.H. at 200 (assignor had standing

p. 9 retained a sufficient interest in the outcome of the reformation claim to grant it

[Sunapee] for a specific price.” We conclude that Sunapee contractually individually sell Mt. Sunapee’s lease/operations they would first offer it to first offer, under which, as described by Nostrand, “if CNL decides to

modification of such [Lease].” The sublease also granted Sunapee a right of

therefrom, in the light most favorable to the non-moving party. If

added to and encompassed in the definition of Land upon the amendment or to or incorporated into the [Lease] shall be automatically and immediately State for review, provides that “[a]ny additional property that is hereafter added

affidavits and other evidence, and all inferences properly drawn

II. Sunapee’s Claims for Relief

Accordingly, we affirm the trial court on this issue. 9

possession of the leasehold property. The sublease, which was provided to the

In reviewing a grant of summary judgment, we look at the

We now turn to the claims disposed of on summary judgment.

repurchase radio station from assignee under certain circumstances).

the reformation action. As the sublessee of CNL, Sunapee remains in have standing to sue. Here, Sunapee has a concrete interest in the outcome of bring an equitable claim but does not stand to benefit from the remedy would

denying it benefits retained in assignment agreement, including right to defendants where defendants’ refusal to close transaction harmed assignor by despite assigning rights under contract to acquire radio station from

We need not decide whether a party that holds a contractual right to

not the assignor. The situation is loosely analogous to that in Physician’s would flow to the State as assignee.” Id. assignor-participants’ rights under ERISA. None of the remedies being sought the right to control the equitable portion of a lawsuit seeking redress of the by a subsequent breach.” Id. Similarly, once a lessee breaks the privity of does not have a concrete private interest in the outcome of the suit.” Id. at 118

not “confer ‘actual’ rights or benefits under ERISA on the State.” Id. at 115.

certain equitable actions under ERISA. Physicians Health Servs., 287 F.3d at

interest under the lease would ordinarily inure to the benefit of the assignee,

(quotation omitted). “Through the assignments, the State has acquired only obligations in the leased premises, there is no practical way he can be harmed The court held that the State “fail[ed] to meet the injury requirement because it black letter law is simple: once a lessee has relinquished his interest and

112. Although the contracts gave the State the nominal right to sue, they did

despite having contractually acquired from plan participants the right to bring Health Services, in which the State of Connecticut was held to lack standing

estate by assigning the lease, any remedy that would affect the property standard rules of contract interpretation.” N.A.P.P. Realty Trust v. CC

p. 10 “A lease is a form of contract that is construed in accordance with the

Executive Council for a combined vote”; and (2) “expansion rights.”

amendment, or whether he is required to present the amendment to the

that “the use of the conjunction ‘and’ to a layperson would mean that the Lease ambiguous as to: (1) “whether the Governor alone can approve/deny an Sunapee first contends that the trial court erred in failing to find the

and Executive Council of the State of New Hampshire.” (Emphasis added.) only after approval of such amendment, waiver or discharge by the Governor

“his approval is necessary.” The trial court adopted the State’s view, ruling

boundaries.” The trial court rejected each claimed breach.

Executive Council with a proposed amendment that he opposes and for which contracting parties reasonably differ as to its meaning.” Hopkins, 143 N.H. at hand, contends that the language does not compel the Governor to present the submit its expansion plans to the Council for approval. The State, on the other the leasehold description to coincide with the Park’s Northern and Western

in paragraph 27, which provides: “This Agreement may be amended, waived or The first Lease provision that Sunapee claims is ambiguous is contained

matter of law for this court to decide. A clause is ambiguous when the together with.’” It therefore reads paragraph 27 to require the Governor to when expansion had been promised to Sunapee, and (C) by refusing to correct Sunapee contends that the term “‘[a]nd’ commonly means ‘along with or proposals for amendments to the [Lease], (B) by refusing to consider expansion duty, Sunapee alleges, “(A) by continually refusing to fulfill its promise to hear

388 (quotation and citation omitted).

of a contract, including whether a contract term is ambiguous, is ultimately a Enterprises, 147 N.H. 137, 139 (2001) (quotation omitted). “The interpretation Del Norte, Inc. v. Provencher, 142 N.H. 535, 537 (1997) (quotation, citation,

expansion outside of the present leasehold boundary.” The State breached that law, we will affirm the grant of summary judgment.

facts de novo.” Hopkins v. Fleet Bank - NH, 143 N.H. 385, 388 (1999).

vote on a proposal for a Lease Amendment” and “to approve some form of fact, and if the moving party is entitled to judgment as a matter of Governor and Council, had a contractual duty under the Lease “to hear and our review of that evidence discloses no genuine issue of material Sunapee’s breach of contract claim alleges that the State, through the

A. Breach of Contract

and brackets omitted). “We review the trial court’s application of the law to the the advice and consent of the council” as follows:

p. 11 Judicial Court of Massachusetts has interpreted a phrase equivalent to “with Birch Broad., 161 N.H. at 196-97 (citation omitted). While the process of

mean the governor with the advice and consent of the council.” The Supreme RSA 21:31-a (2012) defines “[t]he phrase ‘governor and council’ . . . [to] giving effect to the intentions of the parties.

to mean the same thing as the phrase “governor and council” in the statute. intended by the agreement, while keeping in mind the goal of

the parties intended the phrase “Governor and Executive Council” in the Lease whole, the circumstances surrounding execution and the object Governor and Council according to RSA 4:40. Thus, we further conclude that applying this standard, a court should examine the contract as a Council” in the Lease was intended by the parties to refer to approval by the people, mutually understood the ambiguous language to mean. In

language “approval of such amendment . . . by the Governor and Executive under an objective standard, what the parties, as reasonable

governor and council for approval.” RSA 4:40, I. We conclude that the If [an] agreement’s language is ambiguous, it must be determined, the disposal or leasing of state-owned properties shall be . . . [submitted] to the disposal of state-owned real estate. That statute provides that “all requests for ambiguous.

provision to comply with RSA 4:40 (Supp. 2012), the statute relating to the Council a futile exercise. Accordingly, we find paragraph 27 to be

under the law. We therefore also presume that the parties intended the and the Council, so that rejection by the Governor would make submission to the State contends, to require, in any event, the approval of both the Governor that the Governor could act with that body’s advice. It could also be read, as

intended this method to be one that would validly effectuate an amendment things, be amended. We presume that the parties, as reasonable people, Paragraph 27 sets forth the method by which the lease may, among other contends, to require submission of a proposed amendment to the Council so

a material fact,” Hopkins, 143 N.H. at 389-90 (quotation omitted), here, we are

differ as to the meaning of paragraph 27. It could be read, as Sunapee able to resolve the ambiguity as a matter of law. We disagree with the trial court and conclude that the parties reasonably

the meaning of an ambiguous contractual term is typically an argument about Trust, 147 N.H. at 141, and, thus, “[a]n argument between the parties about applying this standard “necessarily involves factual findings,” N.A.P.P. Realty

Council.” consent of the Governor is required independently of that of the Executive p. 12 In re Opinion of the Justices, 78 N.E. 311, 312 (Mass. 1906). Our case law is

of deciding. official body whose opinion could never relieve him from the duty

and not be obliged to ask advice, in the first instance, from an

the power of pardoning “in the Governor, by and with the advice of council,” In convicted criminal to the Council, where the Massachusetts Constitution rests

should seek such aid as he might desire from any proper source, on this issue. natural course of proceeding would seem to be that [the Governor] before it becomes complete and effective. . . . [Accordingly], the namely, whether the Governor was required to submit a petition to pardon a

proposed lease amendment to the Executive Council. We affirm the trial court concurrence shall accompany the affirmative act and enter into it state lands that the Governor does not approve. Addressing a similar issue,

RSA 4:40, paragraph 27 also did not require Governor Lynch to present the amendment himself. Thus, because we interpret paragraph 27 to conform to advice of the council is a requirement that their approval and require the Governor to put before the Executive Council a proposed lease of lease amendment to the Executive Council when he did not approve the and what action, if any, is desirable; and that the provision for Guided by the foregoing principles, we conclude that RSA 4:40 would not the supreme executive magistrate whether any action is called for,

Similarly, here, RSA 4:40 did not require the Governor to present the proposed under such conditions.” p. 12 In re Opinion of the Justices, 78 N.E. at 312. responsibility rests primarily upon the Governor to determine as Council to attempt to dictate the nomination or to originate the action”). be granted. Nothing could ever be gained by asking the council to give advice application for pardon when he was plainly of opinion that no pardon should opined that the Governor was not “obliged to bring before the council an re Opinion of the Justices, 78 N.E. at 311, the Massachusetts high court

advice and consent of the council,” we are of opinion that the not seek the advice of the Council,” and “it is no part of the duties of the Governor, “by and with the advice of council,” or “by and with the Council, Governor and Council act independently, the Governor “may or may power to act is in the Governor, or that the act may be done by the for appointment of official by the Governor with the advice and consent of of the Justices, 340 A.2d 25, 30 (Me. 1975) (noting that under statute calling Governor subject to the consent of the council” (quotation omitted)); cf. Opinion accordance with RSA 21:31-a the sole power of appointment lies with the (where statute called for appointment of official by governor and council, “[i]n in accord. See Brouillard v. Governor and Council, 114 N.H. 541, 547 (1974)

As to th[e] class of cases, where the Constitution declares that the p. 13 B. Estoppel

the breach of contract claim.

Sunapee’s reformation claim, and, therefore, affirm the trial court’s ruling on

court that this argument is more properly addressed in connection with to draw the leasehold boundary lines as promised.” We agree with the trial Sunapee further contends that the State breached the Lease by “fail[ing]

A.J. Cameron Sod Farms v. Continental Ins. Co., 142 N.H. 275, 281 (1997)

representation to his or her injury. fourth, the other party must have been induced to rely upon the

Accordingly, we affirm the trial court on this point. turn. no such right or guarantee, either express or implied, in the Lease. expansion of the ski area can be found in the [Lease’s] language.” We, too, find the intention of inducing the other party to rely upon it; and

would be coterminous with those of the state park. We examine each claim in the ski area.” It concluded, however, that “no ‘right’ to expand or ‘guarantee’ of the matter; third, the representation must have been made with

leasehold area and that the leasehold’s northern and western boundaries representations by the State: that Sunapee would be permitted to expand the the Lease was executed contemplated and even desired the future expansion of Sunapee advances two estoppel claims based upon separate representation was made must have been ignorant of the truth of is substantial evidentiary support for a conclusion that all parties at the time knowledge of those facts; second, the party to whom the In rejecting Sunapee’s argument, the trial court “recognize[d] that there first, a representation or concealment of material facts made with

124 N.H. 463, 468 (1984). claiming estoppel must have been reasonable. City of Concord v. Tompkins, making such a claim must prove four elements: (quotation omitted). With respect to the last element, the reliance of the party appear to agree that only claims of equitable estoppel are before us. A party judgment in favor of the State on Sunapee’s estoppel claims. The parties

asserts that it does “guarantee that all expansion could not be denied.” implied right does “not guarantee a particular form of expansion,” Sunapee argues that “[a] right to expand is necessarily implied in the lease.” While that

Sunapee next argues that the trial court erred in granting summary

Sunapee also asserts ambiguity regarding the right to expand. Sunapee side, would be coterminous with the state-park boundary.” Mueller testified

p. 14 perimeter of the lifts and trail network. And, specifically on the north and west

times and was told “that the leasehold would include the land around the issued and Sunapee submitted its proposal, he spoke to Thomson three or four MacAskill testified at his deposition that between the time the RFP was

shaded area. one cannot tell from the map where the park boundary is in relation to the Thus, as Commissioner Thomson acknowledged in his deposition testimony,

depict the area leased, but does not show the boundaries of the state park.

boundary.” As previously noted, the map provided in the RFP is shaded to should say, the boundary of the RFP would be coterminous with the state-park leased portion of the ski area would be – those lands could be coterminous or, I

[Sunapee’s] understanding that lands to the north and to the west, that the

to and around the perimeter of the ski trail and lift network.” Thus, “it was

proposal would be leasing the entire ski resort, as well as those lands adjacent was presented[] [was such] that any interested parties that would submit a that at a site visit in 1997 or early 1998, “the way the leased portion of the land

Sunapee’s general manager, Donald MacAskill, testified at his deposition

official knowingly made a false representation or concealed a material fact.” We

the edge of the park boundary on the north and west.” he “knew that the area that [the State was] offering for lease did not come up to “inadequate support for a finding that Commissioner Thomson or other State concealment of a material fact and reasonable reliance. The court first found with respect to two of the required elements: false representation or

at his deposition, Thomson answered affirmatively to the question of whether

leasehold’s northern and western boundaries, the trial court found that it failed

was necessary for the existing operation of that ski area and no more.” Thus, area [be defined] as closely to the existing ski area and ski trails. Only what was prepared at the direction of Thomson, who instructed that “the leasehold With respect to Sunapee’s second claim of estoppel, relating to the

guarantee of expansion, we need not consider this claim further.

which included a map of the leased premises dated October 1997. The map

concluded above that the Lease contains no express or implied right or

The record establishes that on January 15, 1998, DRED issued the RFP,

light of the extrinsic evidence, grants [it] a right to expansion.” Having Sunapee reprises its argument that the Lease’s language is ambiguous and, “in leasehold area, was contradicted by the Lease’s plain language. In response,

raised a genuine issue of material fact. disagree with the trial court’s determination, and conclude that Sunapee has

The trial court found that the first claim, relating to expansion of the statement of its official. Turco v. Town of Barnstead, 136 N.H. 256, 262 (1992);

p. 15 Under New Hampshire law, the State is not estopped by an unauthorized

lease had been approved.” by a promise to enter into an amendment to increase the leasehold after the

authority to bind the State by promises made during the lease negotiations or

thereto, “Sunapee knew that neither DRED nor the Attorney General had the that the Governor and Council must approve the Lease and any amendment representation.” It reasoned that, because both the RFP and the Lease stated

material fact, [it] cannot show it was reasonable in relying on any such

that a State official knowingly made a false representation or concealed a

The trial court also found, however, that “[e]ven if Sunapee could show

boundaries.

preparation of the map appended to the RFP and instructed how it should be

concealed a material fact relating to the leasehold’s northern and western

define the leasehold. Thomson testified at his deposition that he directed the

fact as to whether Thomson knowingly made a false representation or “No.” We conclude, therefore, that Sunapee raised a genuine issue of material north and west side and the area [the State was] leasing,” Thomson responded authorized to develop the RFP, which we interpret to include the authority to . . . ski area operation[ ].” Laws 1997, 119:1, I. Thus, Thomson was lease, concession agreement, or management contract for the Mount Sunapee

there was a buffer zone being preserved between the park boundary on the

develop and issue a request for proposals to include but not be limited to a

to the RFP. Similarly, when asked if he ever told any of those people “that Thomson could not recall ever telling that to any of the people who responded addition, despite admitting that he knew the boundaries were not coterminous, in consultation with the committee established in section 2 of th[at] act, Laws 1997, chapter 119 directed that the commissioner of DRED “shall,

exerting no excess of authority.” Id. at 468 (quotations, citation, and brackets officials are acting within their prescribed sphere and functions, and are

and limits of their authority.” City of Concord, 124 N.H. at 470 (quotation

relationship to the leasehold area,” he stated that he did not recall. In

case. omitted). Accordingly, we examine the authority of the State officials in this

omitted). “Governmental estoppel is appropriate,” however, “when government

parties dealing with government officials are charged with notice of the extent City of Concord, 124 N.H. at 468. “We have long recognized that all private

“remember saying anything to Mr. Mueller about the park boundary and its denied making that statement to Mueller, but, when asked if he could coterminous with the state park boundary on the north and west. Thomson

Lease, Thomson also told him that the leasehold boundary would be that at one or two meetings he had with Thomson prior to execution of the execution of the Lease. When asked in his deposition whether, “[p]rior to

p. 16 leasehold or a metes and bounds description of the same prior to Sunapee’s

delayed providing Sunapee with a map showing the true boundary of the has raised a genuine issue of material fact as to whether Thomson knowingly the leasehold and the state park were coterminous, we conclude that Sunapee

whether Thomson affirmatively represented to Sunapee that the boundaries of

judgment on this issue. We conclude that it has. In addition to the issue of dealing that would require reversal of the trial court’s grant of summary of material fact regarding its allegations of official misconduct or capricious

In City of Concord, we noted a “changing attitude toward the application

DRED could not promise or agree to the ultimate leasehold boundary.”

We must now determine whether Sunapee has raised any genuine issue

State argues, Sunapee “was bound to understand that the Commissioner of

case. governmental estoppel and limit our holding on this issue to the facts of this

Governor and Council are authorized to lease state lands. Accordingly, the estoppel in this case. The State asserts that pursuant to RSA 4:40, only the and Council approval still precludes, as a matter of law, the availability of

however, that we signal no general departure from our case law on

of our governmental estoppel rules. Cf. id. at 473 (finding it unnecessary to estopped from disavowing the misstatement.” Id. at 472 (quotation omitted). misconduct we discussed in City of Concord. Thus, we conclude that, upon We must determine, nevertheless, whether the requirement of Governor

undermining important governmental interests.” Id. capriciously dealing with its citizens, against the risk, posed by estoppel, of

claim for governmental estoppel. Id. (quotation omitted). “In considering the affirmative misconduct on the part of a government official” can support a depart, in that case, from existing New Hampshire case law). We note,

the record before us, the balance of equities weighs against a strict application of the administrative decision making process that the government may be Here, Sunapee has alleged the kind of capricious dealing or affirmative boundary, it was within his authority to do so. time Thomson allegedly made representations to Sunapee about the leasehold

balancing test, weighing the public interest in preventing the government from imposition of estoppel against the government, courts have employed an equity

We also cited cases from other jurisdictions holding “that a finding of

“some forms of erroneous advice are so closely connected to the basic fairness of Concord, 124 N.H. at 471. Thus, we cited the observation by one court that of governmental estoppel” expressed in decisions from other jurisdictions. City Governor and Council was required does not affect our conclusion that at the drawn “to define the leasehold area.” That later approval of the Lease by the p. 17 C. Breach of Implied Covenant of Good Faith and Fair Dealing

any other respect.

and we express no opinion as to the reasonableness of Sunapee’s reliance in

that the trial court addressed reliance only with respect to Thomson’s authority requiring us to reverse the grant of summary judgment on this claim. We note “No.” We conclude that Sunapee has raised a genuine issue of material fact

[he] couldn’t have done it in October as opposed to May,” Duddy responded,

after Sunapee signed the lease. When asked whether there was “any reason receive the instruction to produce the map until the beginning of May 1998, legal description. Duddy’s deposition testimony indicates that he did not

authority. See Great Lakes, 135 N.H. at 284. Accordingly, we affirm the trial

and written description. According to Sunapee, when the State produced the

Duddy, a surveyor/mapper with DRED, who produced the surveyed map and

with the state park boundaries and promised to later provide a boundary map

the ground during the snow season” is contradicted by the testimony of Ronald with the RFP because of “[t]he time involved and it’s rather difficult to get on D. Reformation testimony that a surveyed map could not have been produced and provided

Governor to decline to submit the proposed amendment to the Executive amendment. We agree. Having concluded that paragraph 27 allowed the comported with his power under RSA 4:40 to reject any proposed lease that the leasehold’s northern and western boundaries would be coterminous Sunapee’s reformation claim alleges that State officials represented to it

the lease was signed” by Sunapee. It notes that Thomson’s deposition court on this issue. imposed by the implied covenant of good faith and fair dealing. See Centronics expansion, exceeded the limits on its discretionary power under the Lease its expansion proposal to the Executive Council and “to approve some form” of

omitted), and concluded that the Governor’s authority under the Lease Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270, 284 (1992) (quotation and restrained by any express covenants of a more limited character,” Great claim failed as a matter of law. It noted that “implied covenants are qualified covenant of good faith and fair dealing). The trial court concluded that this Corp. v. Genicom Corp., 132 N.H. 133, 143-44 (1989) (discussing implied knowingly delayed the production of a map and legal description until well after after.” Sunapee argues that “[t]here is evidence that Commissioner Thomson Mueller testified that he did, and that “[i]t was explained that they would come

Sunapee alleges that the State, through the Governor’s refusal to submit

concerns or thoughts about there not being any documents attached to it,” signing [the Lease], . . . [he] contact[ed] anyone from the State to express any claim on the alleged misrepresentation by then DRED Commissioner Thomson

p. 18 not preclude Sunapee’s reformation claim. Sunapee bases its reformation

misapprehension over the boundary at the time they approved the Lease, does leasehold description, and therefore presumably did not share the alleged That the Governor and Council were given the more tightly-drawn

Council for approval did not reflect the parties’ original agreement. that the map and description later appended and provided to the Governor and in the form of a map and legal description to be appended to the Lease, and

as to the leasehold boundary, that the agreement was to be reduced to writing

reformation claim may be read to assert that the parties reached an agreement promises he made concerning the leasehold boundary.” Thus, Sunapee’s authorized to do, and that he “was obviously authorized to bind the state to

negotiator, that he signed the Lease on behalf of the State, as he was

negotiators of the Lease. Rather, it alleges that Thomson was the authorized

Sunapee counters that the Governor and Council were not the

the narrowly-drawn boundary.

noted, the written agreement presented to the Governor and Council contained

understood the boundaries to be coterminous. Rather, in fact, as the court 18 DRED, there is no evidence in the record that the Governor and Council court found that even if Sunapee could show an agreement between itself and

Id. at 689-90 (quotation omitted). Although parol evidence generally may not

boundaries would be coterminous on the northern and western sides. The

Id. at 690. Sommers v. Sommers, 143 N.H. 686, 690 (1999) (quotation omitted).

agreement and the writing. agreement in writing, and (3) there is a variance between the prior that the parties had an actual agreement” that the leasehold and state park between the parties, (2) there was an agreement to put the because it found that “Sunapee cannot show by clear and convincing evidence The trial court granted summary judgment to the State on this claim

the writing itself does not reflect the actual agreement reached by the parties.” “The plaintiff’s burden of proof in a reformation action is a heavy one.”

State promised to correct the error but have not done so.

and convincing evidence that (1) there was an actual agreement

be considered to vary or contradict a written agreement, “it may establish that

represented and agreed upon. Sunapee alleges that representatives of the description after Sunapee executed the Lease, it did not match what had been

requires that the party seeking reformation demonstrate by clear Reformation of an instrument for mutual mistake of fact condemnation claim in light of this opinion. p. 19 condemnation claim and remand for consideration of its entire inverse forward. Accordingly, we vacate the partial dismissal of Sunapee’s inverse

The Trial Court (Mangones, J.) had previously dismissed so much of

from the land on which it allowed Sunapee’s inverse condemnation claim to go

accordingly vacate the court’s ruling on this issue.

State Park boundary; or (2) the basis upon which it differentiates that land Sunapee owns outside the State Park boundary or the buffer zone within the not make completely clear: (1) whether the land to which it refers is the land Sunapee’s expansion proposal to the Executive Council. See N.H. CONST. pt. compensation, “through the actions of the Governor in refusing to” present

we have reversed the grant of summary judgment on the reformation claim, we

boundaries of [Sunapee’s] original lease.” This portion of the court’s order does the grant of summary judgment on Sunapee’s reformation claim. Cf. Darner Sunapee’s inverse condemnation claim as concerned “land outside the judgment was improperly granted with respect to the estoppel claim, we reverse in the leased premises” and that the right has been taken by the State, without resembles its estoppel claim, and, for the same reasons we held that summary

in part, upon the “[a]bsen[ce of] a successful claim for reformation.” Because E. Inverse Condemnation presently written, no property right was taken. The court premised its ruling, Sunapee lacks a property right to use land outside the leasehold boundary as the State’s motion for summary judgment on this issue, ruling that because I, art. 12; U.S. CONST. amends. V, XIV. The Trial Court (Nicolosi, J.) granted the need to prove a mutual mistake of fact. Cf. A.J. Cameron Sod Farms, 142 tightly.” Thus, Sunapee effectively asserts fraud by the State’s agent, obviating

that was promised to it “is an important and vital part of [its] property interest and detriment of the former”). As such, Sunapee’s reformation claim closely Sunapee asserts inverse condemnation, alleging that the right to expand

theory”). regarding the estoppel remedy can also be marshalled under the reformation that “[t]he same disputed material facts which demand trial on the merits Motor Sales v. Universal Underwriters, 682 P.2d 388, 401 (Ariz. 1984) (noting boundary,” despite which, “[t]he boundary was purposefully drawn more that “the leasehold boundary on the north and west would be the State Park

and misrepresentation and fraud perpetrated by the other party to the hurt mistake” but “may be granted where there is mistake on the part of one party that “the right to have reformation is not limited solely to cases of [mutual] Larchmont Properties v. Cooperman, 80 S.E.2d 733, 738 (Va. 1954) (noting N.H. at 283 (“Absent fraud, reformation requires a mutual mistake of fact.”); p. 20 Affirmed in part; reversed in

is premature at this stage of the litigation. address this issue, however, because consideration of an attorney’s fees award

F. Attorney’s Fees

come before it on remand, to address in the first instance. absence of briefing, however, and leave it to the trial court, should the issue

same rights” (quotations omitted)); State v. Holland, 221 S.W.3d 639, 643 (Tex. presented a single argument in support of such an award.” We decline to been dismissed where their breach of contract claims would “vindicate the

DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

remanded. part; vacated in part; and

and not under any sovereign powers”). We decline to address this issue in the

action and argues that we should deny the same because Sunapee “has not jurisdictions have analyzed analogous claims under varying theories. See, e.g., the absence of an adequate state remedy,” plaintiffs’ taking claim should have The State notes that Sunapee seeks an award of attorney’s fees in this contract claim. We have never addressed the issue, but courts in other

remedy for infringement lies in contract, not taking”), aff’d, 550 F.3d 1135 (Fed.

withhold property in a contractual situation, is acting akin to a private citizen 2007) (noting that “[t]he State, in acting within a color of right to take or

that because a claim under North Carolina Constitution “is available only in inverse condemnation claim can be brought as an alternative to a breach of Cir. 2008); Carl v. State, 665 S.E.2d 787, 796, 797 (N.C. Ct. App. 2008) (ruling We note, however, that it is by no means clear that, upon these facts, an

creates the property right subject to a Fifth Amendment claim, the proper (noting that “when a contract between a private party and the Government taking claim.”); Tamerlane, Ltd. v. United States, 80 Fed. Cl. 724, 738 (2008) with the Government will give rise to a breach of contract action, rather than a the Government’s interference with contractual rights arising under a contract Barlow & Haun, Inc. v. United States, 87 Fed. Cl. 428, 438 (2009) (“Ordinarily,