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Hoyle, Tanner & Associates, Inc. v. 150 Realty, LLC

Supreme Court of New Hampshire

July 30, 2019

HOYLE, TANNER & ASSOCIATES, INC.
v.
150 REALTY, LLC & a.; MCLEAN COMMUNICATIONS, LLC
v.
150 REALTY, LLC & a.; AT COMM CORPORATION
v.
150 REALTY, LLC & a.

          Argued: March 6, 2019

          Hillsborough-northern judicial district

          Sheehan, Phinney, Bass & Green, PA, of Manchester (James F. Ogorchock, Megan C. Carrier, and Bryanna K. Devonshire on the brief, and Ms. Devonshire orally), for the plaintiffs.

          Hinckley, Allen & Snyder, LLP, of Manchester (Christopher H.M. Carter and Jamie S. Myers on the brief, and Mr. Carter orally), for the defendants.

          DONOVAN, J.

         The defendants, 150 Realty, LLC and Harbour Links Estates, LLC, appeal orders of the Superior Court (Brown and Schulman, JJ.) denying their motions to dismiss or stay actions filed by the plaintiffs, Hoyle, Tanner & Associates, Inc. (HTA), McLean Communications, LLC (McLean), and At Comm Corporation. The trial court ruled that the plaintiffs' claims relating to the defendants' imposition of certain parking rules and fees did not fall within the scope of identical arbitration clauses included in each of the plaintiffs' lease agreements. The Trial Court (Brown, J.) also granted partial summary judgment to HTA and McLean on their declaratory judgment claims, concluding that the defendants' parking rules that assess fees for certain parking spaces were unenforceable. We affirm.

         Accepting the allegations in the plaintiffs' complaints to be true, Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670, 671 (2017), the pertinent facts are as follows. The plaintiffs lease commercial space located at 150 Dow Street in Manchester. Their tenancies commenced between 1992 and 2001, after they entered into separate lease agreements with the property owner, One Dow Court, Inc. (ODC). The lease agreements allot each plaintiff a specific number of parking spaces adjacent to the 150 Dow Street building and allow the plaintiffs to use additional spaces in other parking areas. Each agreement also provides that "lessee's parking rights are subject to lessor's reasonable rules and regulations." (Capitalization omitted).

         The agreements also contain identical provisions in a section captioned "applicable law," that state:

a. In the event of default on the part of lessee under the terms of this Lease, lessor shall be entitled to choose the forum lessor deems appropriate for purposes of enforcing its rights under this agreement and collecting any sums due lessor hereunder. Specifically, lessor shall be able to, at lessor's option, pursue collection and enforcement in the appropriate District or Superior Court, or lessor shall be entitled to pursue binding arbitration at lessor's sole determination.
b. If lessor decides to submit any dispute between the parties pertaining to this lease to binding arbitration, lessor shall still be entitled to prejudgment attachment remedies in District or Superior Court for purposes of securing any future judgment obtained through the arbitration process. . . . Lessor shall, in the first instance, have the right to select an arbitrator from the American Arbitration Association, with said arbitration to be governed under the rules of the American Arbitration Association. Arbitration proceedings, including the selection of an arbitrator, shall be conducted pursuant to the rules, regulations and procedures in effect as promulgated by the American Arbitration Association.
d. In the event that lessee initiates an action against lessor, whether by suit or by arbitration, lessee shall be required to bring such action in the appropriate forum in New Hampshire.

(Capitalization omitted).

         In the years following the execution of the lease agreements, ODC assigned HTA and McLean additional parking spaces at 150 Dow Street pursuant to certain lease amendments. However, ODC never charged the plaintiffs a fee for parking. According to the plaintiffs, the original property owner included the cost of parking in the base rent paid by the lessees.

         In early 2017, the defendants purchased 150 Dow Street from ODC and thus assumed a landlord-tenant relationship with the plaintiffs. In August 2017, the defendants notified the plaintiffs of new parking rules effective as of October 1, 2017. The new rules require tenant employee vehicles to display a valid front parking tag and a valid rear window ...


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