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XTL-NH, Inc. v. New Hampshire State Liquor Commission & a.

Supreme Court of New Hampshire

March 30, 2018

XTL-NH, INC.
v.
NEW HAMPSHIRE STATE LIQUOR COMMISSION & a.

          Argued: November 14, 2017

          Bianco Professional Association, of Concord (James J. Bianco, Jr. and Thomas P. Colantuono on the brief, and Mr. Colantuono orally), and Nixon Peabody LLP, of Manchester (W. Scott O'Connell and Anthony J. Galdieri on the brief), for the plaintiff.

          Ann M. Rice, deputy attorney general (Lisa M. English, senior assistant attorney general, Francis C. Fredericks, assistant attorney general, and Elizabeth A. Lahey, assistant attorney general, on the brief, and Ms. English orally), for defendant New Hampshire State Liquor Commission.

          Devine, Millimet & Branch, PA, of Manchester (Nicholas K. Holmes on the brief and orally), for defendant Exel Inc.

          HICKS, J.

         The plaintiff, XTL-NH, Inc. (XTL), appeals an order of the Superior Court (McNamara, J.) that defendant New Hampshire State Liquor Commission (Commission) did not breach its obligation to provide a competitive bidding process that complied with New Hampshire law. The Commission cross-appeals the trial court's ruling that sovereign immunity did not bar XTL's promissory estoppel claim. Because we agree with the Commission, we vacate and remand to the trial court with instructions to dismiss for lack of subject matter jurisdiction.

         I

         The pertinent facts follow. In March 2012, the Commission issued a Request for Proposal (RFP) soliciting 20-year contract proposals for liquor warehousing services from private vendors. An Evaluation Committee (EC) reviewed five proposals and solicited "Best and Final Offers" from four of the vendors, including XTL. Thereafter, the Commission authorized the EC to negotiate a contract with defendant Exel Inc. (Exel), who was ultimately awarded the contract in November 2012.

         XTL sued the Commission, seeking preliminary and permanent injunctive relief and attorney's fees and costs. XTL alleged that the bidding process by which the contract was awarded to Exel was unlawful under New Hampshire competitive bidding law. See RSA 21-I:18, I(b), :22-a, :22-b (2012). XTL subsequently amended its petition to add claims for promissory estoppel. In Count I of its amended complaint, XTL sought equitable relief - that the court rescind the contract between the Commission and Exel and award XTL the contract, or require rebidding - on a theory of promissory estoppel. Count II of its amended complaint also asserted a promissory estoppel claim, seeking alternative relief in the form of monetary damages for "all expenses, costs, and fees incurred in responding to the RFP and in participating in [the] bidding process, " as well as lost profits.

         The Commission moved for summary judgment on the grounds that the trial court lacked subject matter jurisdiction in the absence of an express statutory waiver of sovereign immunity. Determining that "because RSA 491:8 permits contract actions against the State, XTL's promissory estoppel action is not barred by sovereign immunity, " the trial court denied the Commission's motion regarding XTL's claim for monetary damages. However, the court granted the Commission's motion with respect to XTL's claim for injunctive relief, reasoning that because the waiver of sovereign immunity in RSA 491:8 (2010) "extends only to suits seeking money damages" for breach of contract, equitable relief is barred.

         XTL then moved to again amend its petition, seeking to "re-characterize" its dismissed claim "as a request for declaratory and injunctive relief and a writ of mandamus." The trial court denied the motion because "the State has not consented to be sued in equity for the claims presented." (Quotation omitted.) The court reasoned that "[t]he relief XTL seeks is nothing more than the lost profit damages that the Court has already held it may not recover, other than through a claim of promissory estoppel coupled with bad faith."

         The trial court bifurcated the case into liability and damages phases and a bench trial was held on XTL's remaining promissory estoppel claim in May and June of 2016. Finding that the Commission did not breach its obligation to provide a competitive bidding process, the trial court concluded that "XTL's claim [was] nothing more than the grousing of a disappointed bidder, " that the Commission's RFP "was lawful and in compliance with New Hampshire competitive bidding law, " and that the Commission "complied with the terms of the RFP." Consequently, the trial court determined that "XTL [had] not succeeded in its promissory estoppel claim." This appeal followed.

         II

         On appeal, XTL contends that: (1) the trial court erred "by failing to analyze whether the [Commission] complied with competitive bidding as mandated by RSA 21-A:18"; (2) the Commission's RFP process did not comply with New Hampshire competitive bidding law and thus "the resulting contract is . . . void"; (3) the trial court erred in denying XTL's motion to amend to add claims for declaratory relief and for a writ of mandamus; and (4) that "if the trial court ruled in a footnote that [XTL] could not establish reasonable reliance, that ruling constituted error." (Bolding and capitalization omitted.) The Commission cross-appeals, arguing that although the trial court "properly found that XTL could not maintain a statutory claim that [the Commission] violated RSA 21-I:18, :22-a, and:22-b because it was barred by sovereign immunity, " it was error for the court to permit XTL "to maintain essentially the same claim under the guise of promissory estoppel." We do not ...


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