06-03-2005 Reconsideration order

THE STATE OF NEW HAMPSHIRE

SUPREME COURT
In Case No. 2004-0314, David A. Pope and
Suzanne M. Pope, Individually and as Trustees of the
David A. Pope Revocable Trust and the Woodie 1990
Revocable Trust v. Nancy Moran Lee, the court on June
3, 2005, issued the following order:
The plaintiffs, David A. Pope and Suzanne M. Pope,
individually and as trustees of the David A. Pope 1990 Revocable
Trust and the Woodie 1990 Revocable Trust, move the court to
reconsider its opinion in this case, which was released on April
8, 2005. In the April 8 opinion, the court concluded that a 1998
lease agreement between the plaintiffs and the defendant, Nancy
Moran Lee, conferred upon the defendant the right to renew the
lease in 1999 and thereafter without the need for additional
writing. In their motion for reconsideration, the plaintiffs
argue, among other things, that this court "overlooked" article
20.1 of the lease in reaching the foregoing conclusion.
Article 20.1 of the lease provides, in relevant part,
"Except as hereinafter otherwise provided, the terms and
provisions of this Lease shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and
assigns, respectively, of Lessor and Lessee." After review of
article 20.1, the lease in its entirety and the parties'
arguments on appeal, the court concludes that article 20.1 is
irrelevant to a determination of the issue raised on appeal.
The trial court ruled that the 1998 lease agreement did not
confer upon the defendant the right to perpetual renewals. On
appeal, the defendant did not contest the ruling that the lease
is not perpetual, but rather argued that the trial court
erroneously found her to be a tenant at will based upon its
ruling that the lease was not perpetual. Specifically, she
maintained that because the plain language of the lease evidenced
the parties' intent to confer upon her the right to renew the
lease in 1999 and thereafter, she was not a tenant at will. The
plaintiffs, in objecting to the defendant's appeal, argued that
the trial court's order should be affirmed because the lease did
not confer upon the defendant the right to perpetual renewals.
Thus, neither party contested the trial court's ruling that the
lease in this case did not confer upon the defendant the right to
perpetual renewals. Consequently, the issue on appeal was
whether, having found that the defendant did not have the right
to perpetual renewals, the trial court erred in ruling that the
defendant was a tenant at will instead of finding that the plain
language of the 1998 lease agreement gave her, alone, the right
to continual renewals.

The plaintiffs now, for the first time, argue that the lease
was perpetual based on article 20.1. We construe their argument,
however, to be that the presence of article 20.1 in the parties'
1998 lease agreement renders the issue on appeal one of
perpetuity and not, as the April 8 opinion states, "whether the
lease agreement gave the defendant alone the right to renew the
lease in 1999 and thereafter." We disagree. The trial court
considered the issue of whether the 1998 lease agreement gave the
defendant the right to perpetual renewals, and, without
discussing article 20.1, concluded that it did not. However, the
fact remains that on appeal, neither party contested the trial
court's ruling that the lease did not confer upon the defendant
the right to perpetual renewals. Consequently, we were not asked
on appeal to determine whether that ruling was correct. The
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 06-03-2005 Reconsideration order
presence of article 20.1 in the lease does not change the
question we were presented on appeal from one regarding continual
renewals to one of perpetual renewals.
On appeal we were presented with a lease that undisputedly
does not create a right to perpetual renewals, but which may
create a right to continual renewals. Article 20.1 is therefore
irrelevant to this appeal. In other words, article 20.1 arguably
pertains to whether the lease created a right to perpetual
renewals by its reference to the parties' "heirs, executors,
administrators, successors and assigns." Cf. Geyer v. Lietzan,
103 N.E.2d 199, 201-02 (Ind. 1952) (discussing significance of
reference to "heirs, assigns, etc." in dispute as to whether
lease creates right to perpetual renewals). However, once it is
determined that the lease does not create a right to perpetual
renewals, article 20.1 has no bearing on whether the lease gives
the defendant, alone, the right to renew the lease in 1999 and
thereafter without the need for additional writings.
The April 8 opinion is thus withdrawn and a new opinion
shall be issued this date to reflect more clearly the precise
issue that was raised on appeal and the relationship of article
20.1 to that issue. To that extent only, the plaintiff's motion
for reconsideration is granted. The plaintiffs' remaining
arguments do not reveal any points of law or fact that the court
overlooked or misapprehended, see Sup. Ct. R. 22 (2), and
therefore do not warrant further discussion.
Reconsideration granted
in
part;
opinion withdrawn; new
opinion
to be issued.
BRODERICK, C.J., and NADEAU, DALIANIS, DUGGAN and GALWAY,
concurred.

Distribution:
Clerk, Rockingham County Superior Court 02-E-0236
Honorable Patricia C. Coffey
Honorable Robert J. Lynn
Thomas M. Keane, Esquire
Douglas W. Macdonald, Esquire
Jonathan M. Flagg, Esquire
Irene Dalbec, Supreme Court
Carol Belmain, Supreme Court
Case Manager
File

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