N.H. Elec. Coop. v. Consol. Commc'ns of N. New Eng. Co.

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New Hampshire Electric Cooperative, Inc. v. Consolidated Communications of Northern New England Company, LLC

No. 216-2020-CV-00555

Superior Court of New Hampshire, Hillsborough

February 20, 2024

ORDER ON PARTIES' MOTIONS TO RECONSIDER

David A. Anderson, Associate Justice.

Plaintiff New Hampshire Electric Cooperative ("NHEC") filed suit on July 31, 2020, against Defendant Consolidated Communications ("Consolidated") alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment/quantum meruit. Plaintiff also seeks a number of declaratory judgments pertaining to the timing, effect, and scope of the termination of an agreement between the parties. (Pls.' Compl. (Doc. 1.)) Defendant has filed a counterclaim, seeking its own declaratory judgments and alleging claims for rescission, breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. By order dated December 8, 2023, which is incorporated herein, the Court denied NHEC's motion for partial summary judgment while also finding that one of Consolidated's primary arguments was incorrect as a matter of law. (Doc. 159.) Both parties now move to reconsider the parts of the order averse to them. (Pl.'s Mot. (Doc. 160); Def.'s Mot. (Doc. 162.)) Both parties object. (Pl.'s Obj. (Doc. 164); Def.'s Obj. (Doc 163.)) For the reasons stated below, the Court DENIES in part and GRANTS in part NHEC's motion and DENIES Consolidated's motion.

By way of brief background, NHEC and Consolidated's predecessor in interest entered into a General Agreement Joint Use of Wood Poles ("JUA") on July 1, 1977. The JUA establishes that the parties could supplement the JUA through intercompany operating procedures ("IOP"s). The parties' present dispute revolves around IOP No. 8, which established joint vegetation management standards. In particular, IOP No. 8 allocated how the parties would split vegetation management costs, with NHEC invoicing Consolidated for forty percent of said costs each year. (Doc. 160, Ex. 1 § IV(A)(2).) In 2019, Consolidated stopped paying NHEC's billed invoices. This lawsuit followed.

Analysis

"A motion for reconsideration allows a party to present, [with particular clarity,] points of law or fact that a court has overlooked or misapprehended." Broom v. Cont'l Cas. Co., 152 N.H. 749, 752 (2005); see also Super Ct. Civ. R. 12(e). A party is not permitted to introduce a new legal argument which could have been raised and argued earlier. See Taylor v. Sch. Admin. Unit #55, 170 N.H. 322, 331 (2017) (holding trial court not required to address an argument raised for the first time in plaintiff's motion to reconsider where plaintiff made no showing of an inability to raise the argument previously). Neither can a party use a motion for reconsideration to re-litigate issues the court has already decided. See Northwest Bypass Grp. v. U.S. Army Corps of Eng'rs., 552 F.Supp.2d 137, 144 (D.N.H. 2008) (noting that a motion for reconsideration is not the proper vehicle to revisit an argument a court has already denied).

NHEC asks the Court to reconsider its holding that the express language of IOP No. 8 Section II(B)(1) did not include tree removal within the scope of what vegetation management services that NHEC could so invoice Consolidated. (Doc. 160 ¶ 3.) NHEC argues that the Court construed IOP No. 8's language too narrowly and the document read as a whole contemplates that NHEC could invoice Consolidated for tree removal. (Id. ¶ 6.) At the very least according to NHEC, the word "clearing" and phrase "trimming of trees and limbs" interjects ambiguity about whether tree removal comes within the scope of IOP No 8 Section II(b)(1). (Id. ¶ 22.) Consolidated objects, arguing that the Court correctly considered the plain language of Section II(b)(1). (Doc. 163 ¶ 1.)

Consolidated moves the Court to reconsider its ruling as a matter of law that IOP No. 8's collaboration requirement was not a condition precedent for its obligation to pay NHEC's billed invoices under IOP No. 8. (Doc. 162 ¶ 14.) Consolidated argues that the Court's interpretation of IOP No. 8 Section III(a)(2) was divorced from the contract's plain language and that the section clearly provides that Consolidated is only liable to pay NHEC's invoices if they were the product of mutual collaboration as outlined in Section III(a)(2). (Id. ¶ 13.) NHEC contends that the Court appropriately considered the section's plain language in finding that its alleged lack of compliance with Section III(a)(2) did not excuse Consolidated's non-payment of NHEC's billed invoices. (Doc. 164 ¶ 5.) The Court will consider each motion in turn.

I. NHEC's Motion to Reconsider

In its December 8, 2023 order, the Court denied NHEC's motion for summary judgment because it found that Consolidated sufficiently demonstrated that there was a question of material fact over whether NHEC's invoices complied with IOP No. 8 Section II(b)(1). (Doc. 159 at 13.) In particular, the Court found that the section's plain language expressly did not include tree removal as a type of service that NHEC could bill for under Section 11(b)(1). (Id. at 10-11.) NHEC thus argues that the Court misapprehended a point of law when it failed to consider the phrase "Maintenance ReClearing shall include ground cutting, trimming of trees and limbs. . ." within the context of IOP No. 8 as a whole.^[1] (Doc. 160 ¶ 8.) The Court agrees with NHEC to the extent that it argues that the Court's order too narrowly construed the above language. However, the Court still finds that a dispute of fact exists over whether tree removal falls within Section II(b)(1)'s scope and whether NHEC's invoices so complied.

"When interpreting a written agreement, we give the language used by the parties its reasonable meaning, considering the circumstances and the context in which the agreement was negotiated, and reading the document as a whole." Birch Broad., Inc. v. Capitol Broad. Corp., 161 N.H. 192, 196 (2010). A court will give a contract's language its plain and ordinary meaning unless the language of the contract is ambiguous. See id. "The language of a contract is ambiguous if the parties to the contract could reasonably disagree as to the meaning of that language." Id. "If the agreement's language is ambiguous, it must be determined, under an objective standard, what the parties, as reasonable people, mutually understood the ambiguous language to mean." Id.

"In applying this standard, a court should examine the contract as a whole, the circumstances surrounding execution and the object intended by the agreement, while keeping in mind the goal of giving effect to the intentions of the parties." Id. at 196-97.

"As a general rule, the interpretation of a contract is an issue of law for [the trial court] to resolve." Dillman v. N.H. Coll., 150 N.H. 431,434 (2003). "Where, however, there are disputed questions of fact as to the existence and terms of a contract, they should be resolved by the jury." Id. In such a case, "the question of a contract term's meaning should be left to the trier of facts unless the meaning of the extrinsic evidence is so clear that reasonable men could only reach one conclusion." Galloway v. Chi.-Soft, Ltd., 142 N.H. 752, 756 (1998).

Upon review of IOP No. 8's plain language, the Court finds that its previous analysis of Section II(B)(1) too narrowly focused on the absence of the phrase "tree removal" from the section's definition of maintenance re-clearing. Indeed, the preceding sentence, which provides that maintenance re-clearing shall mean "[r]e-clearing necessary to restore and/or maintain existing rights-of-way to the appropriate Joint Vegetation Management Standard. . ." suggests that the type of vegetation management practices that can be billed under that section are broader than those specifically listed later in the section. The definition of "re-clearing" is more focused on the end result-restoring and maintaining the right of way-rather than the specific method used to achieve said result.

Moreover, as NHEC points out, the definition of clearing broadly refers to removing obstacles or impediments out of the way. See Clear, Oxford English Dictionary, date accessed Feb. 12, 2024^[2] (defining the verb "to clear" as "[t]o free from obstructions, obstacles, impediments, things or persons that obstruct or cumber a space; to make open or void for passage or operations"). Accordingly, the Court misapprehended IOP No. 8's broad language in its December 8, 2023 order and now finds that considering the section's broad language, its holding that the plain language expressly does not include tree removal was erroneous. See Moore v. Grau, 171 N.H. 190, 194 (2018) ("When parties use expansive, unrestricted language, we will give those phrases their normal, broad reading.").

The Court finds, however, that IOP No. 8 Section II(B)(1) is ambiguous as to whether it encompasses tree removal. As the Court noted above and as Consolidated indicates, tree removal is not expressly mentioned amongst the specific list of other activities that clearly constitute maintenance re-clearing under Section II(B)(1), such as "ground cutting, trimming of trees and limbs, and the application of appropriate herbicides." (Doc. 160, Ex. 1) (emphasis added). This reasonably suggests that tree removal does not come within the scope of maintenance re-clearing. See Birch Broad., Inc., 161 N.H. at 196. On the other hand, the broad language used throughout the section reasonably suggests that tree removal could come within the section's scope.

Additionally the use of the phrase "trimming of trees and limbs" also interjects ambiguity into the section because that phrase could be read to...