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

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2016-0546

XTL-NH, INC.

v.

NEW HAMPSHIRE STATE LIQUOR COMMISSION & a.

Argued: November 14, 2017
Opinion Issued: March 30, 2018

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

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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 reach the
merits of XTL’s claims because we hold that they are barred by sovereign
immunity. Pursuant to that immunity, neither the superior court nor this
court is vested with subject matter jurisdiction.

III

The State is immune from suit in its courts without its consent. Sousa v.
State, 115 N.H. 340, 342 (1975). Sovereign immunity rested upon a common
law basis until the enactment in 1978 of RSA chapter 99-D, which adopted
sovereign immunity “as the law of the state,” except as otherwise provided by
statute. Lorenz v. N.H. Admin. Office of the Courts, 152 N.H. 632, 634 (2005)
(quotation omitted). As a State agency, the Commission is “cloaked with the
State’s sovereign immunity.” Chase Home for Children v. N.H. Div. for
Children, Youth & Families, 162 N.H. 720, 730 (2011). Accordingly, the
Commission is immune from suit in New Hampshire courts “unless there is an
applicable statute waiving immunity.” Id. Any statutory waiver is limited to

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that which is articulated by the legislature; thus, New Hampshire courts lack
subject matter jurisdiction over an action against the State “unless the
legislature has prescribed the terms and conditions on which it consents to be
sued, and the manner in which the suit shall be conducted.” Lorenz, 152 N.H.
at 634 (quotation and brackets omitted); see LaRoche, Adm’r v. Doe, 134 N.H.
562, 566-67 (1991). “Sovereign immunity is a jurisdictional question not to be
waived by conduct or undermined by estoppel.” LaRoche, 134 N.H. at 566
(quotation omitted).

XTL asserts that “[a]n action for promissory estoppel . . . is founded upon
the Restatement (Second) of Contracts § 90 (1979), . . . and a promise binding
under § 90 . . . is a contract.” (Quotation and brackets omitted.) According to
XTL, because RSA 491:8 “permits contract actions for damages against the
State,” allowing its promissory estoppel claim does not interfere with the State’s
sovereign immunity.

RSA 491:8 provides that “[t]he superior court shall have jurisdiction to
enter judgment against the state of New Hampshire founded upon any express
or implied contract with the state.” This statutory provision “partially
abrogates the State’s sovereign immunity.” Morgenroth & Assoc’s, Inc. v. Town
of Tilton, 121 N.H. 511, 514 (1981). The statute originated in 1950 when the
Judicial Council submitted a draft bill to the legislature recommending
“enactment of a statute abrogating State sovereign immunity for claims based
on express or implied contracts.” Id. at 515; see N.H. Judicial Council, The
Third Report 40-42 (1950). As originally enacted, the law did not follow the
Judicial Council’s recommendation with respect to implied contracts, see Laws
1951, 243:1 (providing that “[t]he superior court shall have jurisdiction to enter
judgment against the State of New Hampshire founded upon any express
contract with the state”).

In 1952, the Judicial Council renewed its recommendation to include
implied contracts within the limited waiver of sovereign immunity, reasoning
that the legislature’s failure to do so was likely “due to some misconception as
to the nature of an implied contract.” N.H. Judicial Council, The Fourth Report
34 (1952). The Judicial Council explained that “[a]n implied contract in its
essential characteristics is not different from an express contract except that
some terms must be implied. In any suit founded on contract, either express
or implied, recovery depends upon the existence of a contract.” Id. The
legislature subsequently amended the statute to include any “express or
implied contract with the state.” See Laws 1953, 83:1.

Based upon that explanation, we determined that “the Judicial Council
understood an ‘implied contract’ to be an implied in fact contract” and that,
therefore, by its subsequent amendment of the statute, “the legislature
intended to adopt the Judicial Council’s interpretation of ‘implied contract,’
which is limited to an implied in fact contract.” Morgenroth, 121 N.H. at 515-

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16. As we explained, the statute does not abrogate the State’s sovereign
immunity to claims against the State based upon implied in law contracts. Id.
at 516. “An implied in law contract . . . is not a contract but is a legal remedy
imposed by a court.” Id. at 514. “Technically, only implied in fact contracts
may be called ‘implied contracts’; implied in law contracts are more accurately
called ‘quasi-contracts.’” Id.

We have recognized that RSA 491:8 is “in some respects analogous to”
the so-called federal Tucker Act. Wiseman v. State, 98 N.H. 393, 396 (1953);
see 28 U.S.C. § 1346 (2012). The Tucker Act confers jurisdiction on the federal
district courts and on the United States Court of Federal Claims of “[a]ny . . .
claim against the United States . . . founded . . . upon any express or implied
contract with the United States.” 28 U.S.C. § 1346(a)(2).

“[N]umerous decisions have held that this waiver of sovereign immunity
is limited to express contracts and contracts implied in fact and does not
extend to contracts implied in law or founded upon equitable principles.”
Knight Newspapers, Inc. v. United States, 395 F.2d 353, 357 (6th Cir. 1968).
“Although the commentators do not agree as to the nature of the promissory
estoppel cause of action, it cannot be characterized merely as an ‘express or
implied-in-fact’ contract.” Jablon v. United States, 657 F.2d 1064, 1070 (9th
Cir. 1981). Accordingly, “[b]ecause the Tucker Act is interpreted to allow
causes of action founded only on express or implied-in-fact contracts, the
doctrine of promissory estoppel is not within the parameters of the [federal
court’s] jurisdiction.” Durant v. United States, 16 Cl. Ct. 447, 450 (Cl. Ct.
1988); see LaMirage, Inc. v. United States, 44 Fed. Cl. 192, 200 (Fed. Cl. 1999)
(explaining that it is “well settled that this court is without jurisdiction to
entertain claims arising from a contract, based on the theory of promissory
estoppel, or based on contracts implied-in-law”); Jablon, 657 F.2d at 1070
(finding no cases construing the Tucker Act that have included awards based
upon a promissory estoppel theory, the court concluded that the government
has not waived its sovereign immunity with regard to a promissory estoppel
cause of action).

In addition, we note that several other jurisdictions have concluded that
promissory estoppel claims are, by definition, based upon a contract implied in
law. See, e.g., Tiberi v. Cigna Corp., 89 F.3d 1423, 1432 (10th Cir. 1996)
(stating that promissory estoppel is “a contract implied in law where no
contract exists in fact” and, therefore, “is applied in lieu of a formal contract”
(quotation omitted)); Ind. Bureau of Motor Vehicles v. Ash, Inc., 895 N.E.2d
359, 367 (Ind. Ct. App. 2008) (stating that “[p]romissory estoppel or quasi-
contractual remedies permit recovery where no contract in fact exists” and that
quasi contracts “are implied by law” (quotation omitted)); Double AA Builders v.
Grand State Const., 114 P.3d 835, 844 (Ariz. Ct. App. 2005) (concluding that
“even if a promise made enforceable by promissory estoppel could be
considered a contractual obligation, it is based on a contract implied in law,

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not a contract implied in fact”); Martens v. Minnesota Mining & Mfg. Co., 616
N.W.2d 732, 746 (Minn. 2000) (explaining that promissory estoppel “is an
equitable doctrine that implies a contract in law where none exists in fact”
(quotation and brackets omitted)).

Given our legislature’s reliance upon the language of the Tucker Act in
enacting RSA 491:8, and our subsequent determination that the legislature’s
waiver of the State’s sovereign immunity is intended to be limited to claims
based upon an implied in fact contract, we find these decisions persuasive.
“The extent to which [sovereign] immunity should be preserved or waived is
purely a legislative question.” Opinion of the Justices, 101 N.H. 546, 549
(1957); see LaRoche, 134 N.H. at 594. Thus, we decline to conclude that a
claim against the State based upon promissory estoppel falls within the limited
waiver of sovereign immunity set forth in RSA 491:8.

XTL contends that Marbucco Corp. v. City of Manchester, 137 N.H. 629
(1993), provides it “with a cause of action sounding in promissory estoppel for
the [Commission’s] failure to comply with the competitive bidding law of the
State.” (Bolding and capitalization omitted.) Marbucco is distinguishable,
however, as that case involved a municipal contract, not, as here, an alleged
contract with the State, Marbucco, 137 N.H. at 631. See Great Lakes Aircraft
Co. v. City of Claremont, 135 N.H. 270, 279 (1992) (explaining that “[t]he
immunity of government from liability on contracts has never been regarded as
applicable to local governmental units” (quotation omitted)).

We hold, therefore, that the trial court erroneously determined that it
had subject matter jurisdiction to hear XTL’s promissory estoppel claim against
the Commission. Given our holding, we need not address XTL’s argument that
the trial court erred in denying its motion to amend its pleadings to add claims
for declaratory relief and for a writ of mandamus, as those claims were
predicated upon the same allegations as its promissory estoppel claim.

Vacated and remanded.

LYNN, J., concurred; TUCKER, J., superior court justice, specially
assigned under RSA 490:3, concurred.

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