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 partiesí 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 partiesí 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 defendantís appeal, argued that the trial courtís order should be affirmed because the lease did not confer upon the defendant the right to perpetual renewals. Thus, neither party contested the trial courtís 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 partiesí 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 courtís 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 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 partiesí "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 plaintiffís motion for reconsideration is granted. The plaintiffsí 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.