Argued: June 27, 2018
Ramsdell Law Firm, P.L.L.C., of Concord (Michael D. Ramsdell
on the brief and orally), for the plaintiff.
Devine, Millimet & Branch, Professional Association, of
Manchester (Thomas Quarles, Jr. and Brendan P. Mitchell on
the brief, and Mr. Mitchell orally), for the defendant.
plaintiff, the Grand Summit Hotel Condominium Unit
Owners' Association (Association), filed claims against
the defendant, L.B.O. Holding, Inc. d/b/a Attitash Mountain
Resort (Attitash), arising from Attitash's alleged
failure to maintain a cooling tower at the Grand Summit Hotel
and Conference Center (Condominium) in Bartlett. Attitash
moved to dismiss the Association's claims, arguing that
they were barred by a provision, which required arbitration
of certain disputes, in a management agreement (the
Agreement) between the parties. The Trial Court
(Ignatius, J.) denied Attitash's motion to
dismiss, ruling that the Association's claims fall
outside of the scope of the provision. The trial court
subsequently approved this interlocutory appeal. See Sup.
Ct. R. 8. We affirm and remand.
following facts are drawn from the interlocutory appeal
statement. The Association is comprised of the residential
and commercial owners of the Condominium. It is responsible
for managing, or arranging for the management of, the
Condominium. To fulfill that obligation, the Association
hired Attitash to manage the property under the terms of the
Agreement. Under the Agreement, the Association agreed to pay
the "Actual Costs" of operating the Condominium,
which the Agreement defines, in part, as "the total cost
to [the] Manager of operating the Condominium" including
"all costs, charges, and expenses of every kind and
description fairly attributable to the operation, management
or maintenance of the Association." As manager of the
Condominium, Attitash has assumed the responsibility to
arrange and supervise all repairs, replacements, and
maintenance, and to "[n]egotiate and enter into on
behalf of the Association such service and maintenance
contracts as may be required . . . including . . . contracts
for . . . equipment maintenance."
2011 and the spring of 2013, Attitash retained a commercial
heating and cooling contractor to provide maintenance of the
Condominium's heating and cooling system, including
winterizing the cooling tower each fall. However, Attitash
failed to enter into a contract with that contractor - or
with any other contractor - to provide winterizing services
in the fall of 2013, and the cooling tower was not properly
winterized for the winter of 2013-2014. In the spring of
2014, the contractor inspecting the cooling system discovered
that it had been damaged during the winter and was unfit for
thereafter, Attitash informed the Association of the damage
and represented that, although it had entered into a
maintenance contract for the cooling tower that covered the
fall of 2013, the contractor had failed to winterize the
cooling tower. Attitash subsequently represented to the
Association that the cooling tower had failed because it had
reached the end of its useful life. During the summer of
2014, Attitash rented a temporary cooling tower. In
anticipation of the summer of 2015, it arranged to have the
damaged cooling tower repaired. Attitash incurred more than
$200, 000 in costs, which the Association paid.
2016, the Association filed this action asserting claims
against Attitash for breach of contract, breach of the
covenant of good faith and fair dealing, negligence, and
violation of the Consumer Protection Act. Attitash moved to
dismiss, arguing that the suit was barred because the
Agreement contains a provision that requires arbitration for
disputes over "Actual Costs." The disputes
The [Association] shall have thirty (30) days from the
rendition of a statement by [Attitash] for both the
Management Fee or of the Actual Cost within which to protest
the nature, amount or method by which such amount was
determined. If the matter cannot be resolved by the parties
within thirty (30) days thereafter, it shall be rendered to
an independent public accountant for a decision, which
decision shall be binding on both parties.
trial court denied Attitash's motion, concluding that the
provision does not "require mandatory arbitration for
all matters leading to the actual costs that were incurred in
this case." The trial court further ruled that review by
an accountant "would not be appropriate for disputes
involving contract negotiation, representations made by the
contracting parties, disputes over the effective date of a
contract, compliance with the terms of a contract, inadequate
work performed by [Attitash], and other assertions made by
[the Association]." This interlocutory appeal followed.
standard of review on a motion to dismiss is "whether
the allegations in the plaintiff's pleadings are
reasonably susceptible of a construction that would permit
recovery." Lamprey v. Britton Constr., 163 N.H.
252, 256 (2012). We "assume the plaintiff's
allegations to be true and construe all reasonable inferences
in the light most favorable to [the plaintiff]."
Id. Our threshold inquiry involves testing the facts
alleged in the pleadings against the applicable law.
Id. Dismissal is appropriate "[i]f the facts
pled do not constitute a basis for legal relief."
Beane v. Dana S. Beane & Co., 160 N.H. 708, 711
(2010) (quotation omitted). In making our determination, we
may also consider documents attached to the plaintiff's
pleadings, or "documents the authenticity of which are
not disputed by the parties, official public records, or
documents sufficiently referred to in the [complaint]."
Ojo v. Lorenzo, 164 N.H. 717, 721 (2013) (quotation
and brackets omitted).
threshold matter, Attitash argues that this dispute should be
governed by the Federal Arbitration Act (FAA), 9 U.S.C.
§§ 1-16 (2012). The Association disagrees, arguing
that this dispute is governed by RSA 542:1 (2007), in part,
because the Agreement "expressly provides that it is
governed by New Hampshire law." We note that, in
pleadings filed in advance of the hearing on the motion to
dismiss, Attitash did not argue that the trial court should
apply federal law. To the contrary, Attitash relied
exclusively on state law. The trial court, when ruling on the
motion to dismiss, did not rely on federal law. Only when
Attitash requested that the trial court transfer an
interlocutory appeal did it argue - for the first time - that
the FAA controls.
assume, without deciding, that this choice of law issue is
properly before us. However, we need not decide whether
federal or state law controls because, in regard to the
issues on appeal, federal and state law are the same. Indeed,
in its brief, Attitash acknowledges that the "New
Hampshire [a]rbitration [s]tatute [m]irrors the FAA and
[r]equires the [s]ame [r]esult." (Bolding omitted.)
Under both federal and state law, a presumption of
arbitrability applies to arbitration clauses. See John A.
Cookson Co. v. N.H. Ball Bearings, 147 N.H. 352, 355
(2001); Granite Rock Co. v. Teamsters, 561 U.S. 287,
301-02 (2010). That presumption is, however, rebuttable.
See N.H. Ball Bearings, 147 N.H. at 355-56;
Granite Rock, 561 U.S. at 301. Further, under both
federal and state law, the presumption of arbitrability
"does not relieve a court of the responsibility of
applying traditional principles of contract interpretation in
an effort to ascertain the intention of the contracting
parties." Appeal of Town of Bedford, 142 N.H.
637, 640 (1998) (quotation omitted); see also Granite
Rock, 561 U.S. at 301-02 (observing that the Court has
never held that the presumption in favor of arbitration
"overrides the principle that a court may ...