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Carpenter v. Levine

Supreme Court of New Hampshire

May 16, 2012

Mark Carpenter
v.
Robert Levine

The plaintiff, Mark Carpenter, appeals orders of the trial court denying his motion for partial summary judgment and granting the motion in limine filed by the defendant, Robert Levine. He argues that the trial court erred in: (1) denying his motion for partial summary judgment on his claim for specific performance/breach of contract; and (2) granting Levine's motion in limine to exclude extrinsic evidence and/or argument concerning the interpretation of an August 2005 contract executed by Carpenter. We affirm.

When reviewing a motion for summary judgment, the trial court is required to construe the pleadings, discovery and affidavits in the light most favorable to the non-moving party to determine whether the proponent has established the absence of a dispute over any material fact and the right to judgment as a matter of law. Porter v. City of Manchester, 155 N.H. 149, 153 (2007). An issue of fact is material if it affects the outcome of the litigation. Id. In reviewing the denial of a motion for summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Id. If no genuine issue of material fact existed, and the moving party was entitled to judgment as a matter of law, then summary judgment should have been granted. Id.

We briefly summarize the relevant facts before the trial court at the time it reviewed Carpenter's motion for partial summary judgment. Carpenter alleged that: (1) he moved to New Hampshire in March 2005 after accepting an employment offer with Pannaway Technologies (Pannaway); and (2) Levine promised him a $250, 000 "signing bonus, " which he never paid. Carpenter sought partial summary judgment on his claim for specific performance/breach of contract. Levine filed an objection to the motion for partial summary judgment, with a supporting affidavit and exhibits. The exhibits included an August 2005 agreement executed by Pannaway's president and Carpenter addressing stock options given to Carpenter. The final sentence of the agreement provides: "These options and this letter supersede all agreements, verbal or in writing, between yourself, Robert Levine, and Gary Davis regarding your employment with Pannaway Technologies, Inc."

Based upon the record before us, we conclude that there were disputed material facts on the record before the trial court sufficient to defeat Carpenter's motion for partial summary judgment. That Levine did not sign the August 2005 agreement does not alter our conclusion that the language of the agreement precluded the trial court's entry of partial summary judgment in favor of Carpenter. Moreover, although Carpenter also argues on appeal that Levine's admissions at trial provide further support for Carpenter's claim of error, his argument is that the trial court erred in denying his motion for partial summary judgment. Accordingly, we look at the evidence before the trial court at the time of its ruling. Cf. State v. Bassett, 139 N.H. 493, 497 (1995).

We note that, even if we were to expand the scope of our review of the record to include evidence presented at the subsequent trial, the limited transcript provided on appeal contains only an excerpt of one witness's testimony. As the appealing party, it is Carpenter's burden to provide us with a record sufficient to decide his issues. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); Sup. Ct. R. 13. Where the issue before us requires a review of the evidence presented, we cannot address it without a complete record.

Carpenter also contends that the trial court erred in granting Levine's motion in limine to exclude extrinsic evidence and/or argument concerning the interpretation of the August 2005 contract. The interpretation of a contract, including whether a contract term is ambiguous, is a question of law; we review the trial court's interpretation de novo. Birch Broad. V. Capitol Broad. Corp., 161 N.H. 192, 196 (2010). If the language of the contract is clear and unambiguous, we will interpret the intended meaning from the contract itself without resort to extrinsic evidence. See LeBaron v. Wight, 156 N.H. 583, 585-86 (2007). The August 29, 2005 agreement executed by Carpenter and Gary Davis, the President of Pannaway, took the following form:

TO: Mark Carpenter
FR: Gary Davis
DT: August 29, 2005
SUBJECT: Stock Options
These stock options (dated July 15, 2005) are to satisfy the verbal agreement between yourself and Robert Levine for a $250, 000 cash incentive to join Pannaway Technologies, Inc.
These options and this letter supersede all agreements, verbal or in writing, between yourself, Robert Levine, and Gary Davis regarding your employment with Pannaway Technologies, Inc.

Carpenter argues on appeal that this agreement does not absolve Levine of his personal guarantee to pay Carpenter the $250, 000 signing bonus because that guarantee was separate and apart from the stock option agreement. In support of his position, he notes that Levine did not sign the agreement and first saw the document after Carpenter filed suit. He also contends that "the agreement applies to agreements between Carpenter, Pannaway and Levine."

We are unpersuaded by these arguments. The first paragraph of the agreement makes clear that the options are provided "to satisfy the verbal agreement between yourself and Robert Levine for a $250, 000 cash incentive to join Pannaway Technologies, Inc." The second paragraph specifically provides that the options and the agreement "supersede all agreements, verbal or in writing, between yourself, Robert Levine and Gary Davis regarding your employment with Pannaway Technologies, Inc." We find no ambiguity in this agreement which specifically acknowledges the verbal agreement between Levine and ...


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