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.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
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http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
No. 2018-0182

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
Opinion Issued: July 30, 2019

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

2
 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 parking sticker, and impose
monthly fees upon the tenants to validate the parking tags and stickers.

In September 2017, HTA filed a complaint against the defendants in the
trial court contesting the new parking rules. The complaint alleges breach of
contract and anticipatory breach and requests, inter alia, an injunction,
declaratory judgment, and damages. McLean filed a similar complaint, with an
additional claim of breach of the covenant of good faith and fair dealing. In
October 2017, At Comm also filed a complaint against the defendants in
another trial court, alleging the same claims as those alleged in McLean’s
complaint. After HTA and McLean initiated suit, the defendants filed demands
for arbitration with the American Arbitration Association (AAA) alleging that the
plaintiffs failed to comply with the new parking rules. Shortly thereafter, the
Trial Court (Brown, J.) in the HTA action stayed the implementation of the new
parking rules until the resolution of the underlying contractual disputes.

The defendants moved to dismiss the plaintiffs’ actions or, in the
alternative, stay the actions pending arbitration. They argued that the
incorporation in the lease agreements of the AAA rules required that an
arbitrator, rather than the court, decide whether the dispute was subject to
arbitration. They also argued that, regardless of which forum decides this
threshold question, the underlying dispute falls within the scope of the

3
arbitration clause and therefore must be resolved in arbitration. These
motions were denied.

Shortly thereafter, the Trial Court (Brown, J.) granted a motion for
summary judgment filed by HTA and McLean on their requests for declaratory
judgment. Eventually, all three actions were consolidated, and the parties filed
a joint motion requesting the trial court’s approval of, inter alia, the plaintiffs’
nonsuit, without prejudice, of all remaining claims, and the parties’ stipulation
that the trial court’s orders on the motions to dismiss and summary judgment
applied to all of the consolidated cases. The trial court granted the motion, and
this appeal followed.

On appeal, the defendants contend that the trial court erred in two
respects. First, they argue that the parties “clearly and unmistakably intended
that an arbitrator, not the court, determine any question of arbitrability.”
Second, they argue that the dispute falls within the scope of the arbitration
clause because the lease agreements allow the defendants to submit “any
dispute” between the parties “pertaining to this Lease” to binding arbitration.

The defendants’ arguments require that we interpret the language of the
lease agreements. Because a lease is a form of contract, we construe a lease by
applying the standard rules of contract interpretation. Town of Ossipee v.
Whittier Lifts Trust, 149 N.H. 679, 685 (2003). The proper interpretation of a
contract is ultimately a question of law for this court to determine. N.A.P.P.
Realty Trust v. CC Enterprises, 147 N.H. 137, 139 (2001). A contract is
interpreted to reflect the parties’ intentions at the time of contracting. Id. In
the absence of ambiguity, the intent of the parties to a contract is to be
determined from the plain meaning of the language used. Whittier Lifts Trust,
149 N.H. at 685. The parties’ contractual terms and phrases will be assigned
their common meaning, and we will ascertain the intended purpose of the
contract based upon the meaning that would be given to it by a reasonable
person. See id.

When parties enter into an agreement to arbitrate certain disputes, the
resolution of those disputes falls within the jurisdiction of the arbitrator, rather
than the court. See RSA 542:2 (2007); see also John A. Cookson Co. v. N.H.
Ball Bearings, 147 N.H. 352, 361 (2001) (“An arbitrator’s jurisdiction over an
issue depends upon the voluntary agreement of the parties.”). The underlying
disagreement on appeal is whether the parties’ dispute involves a matter that
the parties have contractually agreed to submit to arbitration. Thus, the
parties disagree as to the substantive arbitrability of the dispute. See Appeal of
Hillsborough County Nursing Home, 166 N.H. 731, 734 (2014) (“Substantive
arbitrability refers to whether a dispute involves a subject matter that the
parties have contractually agreed to submit to arbitration.” (quotation
omitted)). However, as an initial matter, the parties disagree as to whether the

4
court or the arbitrator has the authority to decide the arbitrability of the
dispute.

We have long held that the court, and not the arbitrator, determines the
question of arbitrability. See Aetna Life & Cas. Co. v. Martin, 134 N.H. 90, 93
(1991). As with any general rule, however, there are exceptions. Thus, we
have also held that parties to an arbitration agreement “may agree to submit
even the question of arbitrability to the arbitrator for decision.” Appeal of
Police Comm’n of City of Rochester, 149 N.H. 528, 534 (2003) (quotation
omitted). “Where the parties clearly and unmistakably submitted the issue of
arbitrability to the arbitrator without reservation,” the arbitrator, rather than
the court, has the authority to make this determination. Id. (quotation
omitted). Nonetheless, in the absence of contractual language “clearly and
unmistakably provid[ing] otherwise, the question of whether the parties agreed
to arbitrate is to be decided by the [court], not the arbitrator.” Appeal of Town
of Durham, 149 N.H. 486, 488 (2003) (quotations omitted); see also Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002).

Accordingly, we must determine whether the parties “clearly and
unmistakably” provided for an arbitrator to decide arbitrability. In making this
determination, we do not consider either the scope of the arbitration agreement
or the merits of the dispute. See Henry Schein, Inc. v. Archer and White Sales,
Inc., 139 S. Ct. 524, 530 (2019). Rather, we look to the terms of the lease
agreements to determine whether, at the time of contracting, the parties clearly
and unmistakably intended to delegate the arbitrability question to an
arbitrator.1 See Appeal of Police Comm’n of City of Rochester, 149 N.H. at 534;
N.A.P.P. Realty Trust, 147 N.H. at 139 (“A lease is interpreted to reflect the
parties’ intentions at the time of contracting.”).

The lease agreements do not expressly state that an arbitrator must
decide the question of arbitrability. However, in arguing that the question
must be decided by an arbitrator, the defendants point to the reference to the
AAA rules in subparagraph (b) of the lease agreement provisions that requires
any arbitration proceeding initiated by the defendants to be governed by the
AAA rules. Rule R-7(a) of the AAA’s Commercial Arbitration Rules and
Mediation Procedures provides that the arbitrator “shall have the power to rule

1 In Appeal of Town of Durham, we looked to the scope of the agreement to determine whether the
arbitrator had jurisdiction to decide the arbitrability of the dispute. See Appeal of Town of
Durham, 149 N.H. 486, 487-88 (2003) (analyzing the language of a collective bargaining
agreement, which contained an express clause delegating arbitrability to an arbitrator, and
reviewing the facts in the record to conclude that the agreement did not cover the employee at
issue). To the extent that the court’s analysis in Town of Durham may be viewed as an
arbitrability determination, we clarify that, when deciding whether the parties clearly and
unmistakably agreed to delegate the question of arbitrability to the arbitrator, we look only to the
language of the contract to determine the parties’ intent at the time of contracting. We do not
need to decide the underlying issue of arbitrability to answer this question.

5
on . . . the arbitrability of any claim or counterclaim.” Accordingly, the
defendants contend that Rule R-7(a) “plainly delegates the issue of arbitrability
to an arbitrator.” Therefore, according to the defendants, the lease agreements’
“incorporat[ion of] the AAA rules” demonstrates that the parties “clearly and
unmistakably intended that an arbitrator, not the court, [would] determine any
question of arbitrability.”

We have stated that the parties may agree to submit the arbitrability of
the dispute to the arbitrator either expressly or “implicitly by an arbitration
clause written broadly enough to include the issue of arbitrability within its
general subject matter.” School Dist. #42 v. Murray, 128 N.H. 417, 420-21
(1986). We have not, however, determined whether the mere reference to the
AAA rules “clearly and unmistakably” demonstrates the parties’ intent to
delegate the arbitrability question to an arbitrator.

The defendants contend that courts in other jurisdictions have
“overwhelmingly [concluded] that arbitration clauses incorporating [the] AAA
rules by reference delegate jurisdictional questions to the arbitrator.” Indeed,
numerous federal circuit courts have concluded that an arbitration
agreement’s incorporation of the AAA rules “constitutes clear and unmistakable
evidence that the parties agreed to arbitrate arbitrability.” Oracle America, Inc.
v. Myriad Group A.G., 724 F.3d 1069, 1074 (9th Cir. 2013); see Brennan v.
Opus Bank, 796 F.3d 1125, 1131 (9th Cir. 2015) (collecting cases). Some state
courts have reached the same conclusion. See Ahluwalia v. QFA Royalties,
LLC, 226 P.3d 1093, 1098-99 (Colo. App. 2009) (collecting cases).

The majority of the cases cited by the defendants, however, involve
arbitration agreements that not only require that the AAA or similar rules
govern arbitration procedures, but further require that the forum in which to
resolve the arbitrable disputes be arbitration. See, e.g., Brennan, 796 F.3d at
1128 (analyzing an agreement requiring that “any controversy or claim arising
out of this [agreement] . . . shall be settled by binding arbitration” except
claims for equitable relief); Contec Corp. v. Remote Solution, Co., Ltd., 398
F.3d 205, 208, 211 (2d Cir. 2005) (concluding that a signatory to a contract
referencing the AAA rules and requiring arbitration of “any controversy” arising
under the agreement could not “disown its agreed-to obligation to arbitrate all
disputes, including the question of arbitrability”). Thus, in those cases, when
an agreement requires certain disputes to be submitted to arbitration governed
by the AAA rules, there is no question that the AAA rules govern all disputes
that fall within the scope of the arbitration agreement.

By contrast, the lease agreements here give the parties the ability to
decide whether to submit a claim to arbitration or pursue the claim in a court
of law. Subparagraph (a) within the “applicable laws” provisions of the lease
agreements provides that, “[i]n the event of default on the part of [the plaintiffs]
under the terms of [the lease],” the defendants are entitled “to choose the forum

6
[they] deem[] appropriate,” including “District or Superior Court,” for “purposes
of enforcing [their] rights under this agreement and collecting any sums” due to
them. Subparagraph (b) provides that the AAA rules govern only when the
defendants choose to pursue binding arbitration. Thus, reading these
provisions as a whole, see Moore v. Grau, 171 N.H. 190, 194 (2018), the lease
agreements provide the defendants a choice of forum — arbitration governed
under the AAA rules or a court of law governed by the laws of this State.
Moreover, subsection (d) recognizes the plaintiffs’ ability to pursue a claim in
court or arbitration, with no mention of the AAA rules at all. In light of these
provisions, which expressly require the AAA rules to apply only when the
defendants submit a claim to arbitration, we fail to see how this single
reference to the AAA rules, by itself, is sufficient to demonstrate that the
parties clearly and unmistakably intended for an arbitrator to decide the
question of arbitrability.

We recognize that subsection (a), by providing the defendants with the
option to pursue a claim in court or in arbitration at their “sole determination,”
arguably gives the defendants the power to compel arbitration. It is unclear
whether subsection (d) gives the plaintiffs a similar power to compel the
defendants to submit to the forum of the plaintiffs’ choice. This observation,
however, further highlights the lack of clarity as to the parties’ rights and
obligations under the agreements, and, consequently, the intent of the parties
when entering into the agreements. In light of these considerations, we cannot
say that it is clear and unmistakable that the parties agreed, at the time of
contracting, that an arbitrator, rather than the court, would decide the
question of arbitrability based upon the reference to the AAA rules in
subsection (b) alone.

The defendants argue that the forum selection provisions are “not so
substantial as to defeat the obvious intent reflected in the Leases to delegate
issues of arbitrability to the arbitrator.” They cite cases from other
jurisdictions holding that the incorporation of the AAA or similar rules clearly
and unmistakably demonstrates the parties’ intent to arbitrate arbitrability,
even though the arbitration agreements also permit the parties to seek judicial
intervention under certain circumstances. See Oracle, 724 F.3d at 1071,
1075-76; Hopkinton Drug, Inc. v. CaremarkPCS, L.L.C., 77 F. Supp. 3d 237,
242, 248-50 (D. Mass. 2015); BAYPO Ltd. Partnership v. Technology JV, LP,
940 A.2d 20, 23, 26-27 (Del. Ch. 2007).

These cases are inapposite because, unlike the agreements before us,
they all involve arbitration agreements that did not give either party discretion
to choose the forum in which to resolve certain disputes. See Oracle, 724 F.3d
at 1071, 1075-76; Hopkinton Drug, 77 F. Supp. 3d at 242, 250; BAYPO Ltd.
Partnership, 940 A.2d at 23, 26-27. Rather, the agreements required
arbitration unless the dispute involved a specific type of claim or when a party
was seeking certain types of equitable relief. See Oracle, 724 F.3d at 1071,

7
1075-76 (analyzing an agreement that excepted from its arbitration
requirement judicial actions relating only to the party’s intellectual property
rights or the other party’s compliance with the agreement); Hopkinton Drug, 77
F. Supp. 3d at 242, 250 (analyzing an agreement that required arbitration of all
disputes but did not prevent the parties from seeking preliminary injunctive
relief in state or federal court to halt or prevent a breach of the agreement);
BAYPO Ltd. Partnership, 940 A.2d at 23, 26-27 (analyzing an agreement that
required arbitration of all disputes but did not limit the parties from seeking
injunctive or equitable relief in court to protect rights and property or to
maintain the status quo before, during, or after arbitration).

Here, the lease agreements do not require arbitration. Rather, they give
the parties the option to choose between submitting a dispute to arbitration or
pursuing a claim in a court of law. The provisions that permit the parties to
bring an action in court, therefore, are not an exception to an arbitration
requirement; they are an alternative to arbitration altogether. Because of the
broad access to judicial relief provided by this alternative, we disagree with the
defendants that the forum selection provisions should be given little weight in
determining whether the parties intended to arbitrate arbitrability. Cf. BAYPO
Ltd. Partnership, 940 A.2d at 26-27 (concluding that the “limited ancillary
relief” the parties could seek from a court of law under the arbitration
agreement did not provide “boundless and independent access to judicial
relief”).

We conclude that, in the absence of any additional language
demonstrating an intent that the AAA rules govern the threshold question, it is
neither clear nor unmistakable that the parties intended to delegate the
arbitrability determination to an arbitrator given that the agreements expressly
provide each of the parties with the option of filing suit in court or seeking
arbitration. If the parties had intended that the references to the AAA rules be
construed to delegate the question of arbitrability to an arbitrator, regardless of
the choice of forum provisions, the parties could have included language that
clearly expressed that intent. The absence of such language is particularly
significant given our long-standing recognition that the court, rather than an
arbitrator, decides arbitration in the absence of clear and unmistakable
evidence providing otherwise. See Appeal of Town of Durham, 149 N.H. at 488.
Accordingly, the trial court properly concluded that it had jurisdiction to
determine the arbitrability of the dispute.

The defendants next argue that the trial court erred in concluding that
the dispute was not subject to arbitration under the lease agreements.
Reading select parts of subparagraphs (a) and (b) together, the defendants
contend that these provisions entitle them to pursue binding arbitration to
resolve “any dispute between the parties pertaining to” the lease agreements.
Because the disputes at issue in the plaintiffs’ trial court actions and in the

8
defendants’ demands for arbitration “pertain” to the lease agreements, the
defendants argue that the disputes must be arbitrated.

The defendants’ argument concerning the scope of the arbitration
provisions in the lease agreements presents a question of law for this court.
State v. Philip Morris USA, 155 N.H. 598, 604 (2007). Bearing in mind the
purpose and policy of arbitration provisions, we interpret such in accordance
with the intention of the parties at the time the agreements were made. See id.
While there is a presumption of arbitrability if the contract contains an
arbitration clause, we may conclude that a particular grievance is not
arbitrable if it is determined with positive assurance that the contract is not
susceptible to an interpretation that covers the dispute. Id.

Subparagraph (a) entitles the defendants to pursue binding arbitration at
their “sole determination.” However, reading subparagraph (a) in its entirety
establishes that the defendants have the right to compel arbitration “[i]n the
event of default on the part of [the plaintiffs] under the terms of [the lease
agreements], . . . for purposes of enforcing [their] rights under the agreement[s]
and collecting any sums due [to the defendants] hereunder.” Thus, the scope
of the defendants’ right to pursue binding arbitration under subparagraph (a)
is limited to disputes that arise when the defendants seek to remedy a tenant’s
default under the terms of the lease agreements.

Subparagraph (b) applies when the defendants “decide[] to submit any
dispute between the parties pertaining to this Lease to binding arbitration.”
However, subparagraph (b) does not contain any substantive language
indicating what types of disputes can be arbitrated. In particular, it contains
no language that authorizes the defendants to compel binding arbitration with
respect to any additional disputes beyond those disputes included in
subparagraph (a). Thus, reading subparagraphs (a) and (b) together, we
conclude that the lease agreements authorize the defendants to compel
arbitration only when the dispute relates to a lessee’s default.

The defendants, however, argue that subparagraphs (a) and (b) provide
two distinct triggers of arbitration rights. They assert that subparagraph (a)
provides arbitration rights in the event of a default, and subparagraph (b)
provides arbitration rights in any dispute that pertains to the lease agreements.
Although subparagraph (b) explains what happens if the defendants decide to
submit a dispute to binding arbitration, subparagraph (a) is the only provision
that provides the defendants with any right to compel arbitration, and limits
that right to disputes relating to a lessee’s default. Subparagraph (b) provides
the rules and procedures that apply when the defendants choose to submit a
dispute to arbitration; its reference to “any dispute . . . pertaining to this Lease”
refers to the defendants’ ability to submit disputes to arbitration as set forth in
subparagraph (a). Thus, subparagraph (a) provides the right to pursue

9
arbitration, while subparagraph (b) provides the rules that apply if the
defendants elect to pursue arbitration.

These provisions, when read as a whole, demonstrate that subparagraph
(b) applies only if the defendants choose to pursue arbitration under
subparagraph (a), and cannot be read as providing a right to arbitration
independent of that set forth in subparagraph (a). Therefore, we conclude that
the agreements authorize the defendants to compel arbitration only in the
event of a default. Reading subparagraph (b) as providing a separate right to
pursue arbitration in broader circumstances than the right to pursue
arbitration in subparagraph (a) would render the express language in
subparagraph (a) superfluous. Because this interpretation is contrary to our
canons of contract interpretation, we decline to adopt it. See Moore, 171 N.H.
at 194 (“[When] interpreting a contract, we consider the contract as a whole
. . . .” (quotation omitted)).

The inquiry does not end here, however, because the parties’ dispute
may fall within the provisions of subsections (a) and (b) if it involves a default
by the plaintiffs under the terms of the lease agreements. See Philip Morris
USA, 155 N.H. at 604. The Trial Court (Brown, J.) did not expressly rule on
this question, but it determined that the defendants “failed to establish that the
imposition of a parking fee separate from the lessees’ rent, where the lessees’
rent previously included parking, is a reasonable rule or regulation and not a
substantive amendment to the lease.” In concluding that the new parking
rules are not terms of the lease agreements, the trial court, in essence, found
that the parties’ dispute did not involve a breach of the terms of the lease
agreements.

The defendants do not appear to directly challenge the substance of the
trial court’s ruling. Rather, they argue that the trial court erred in deciding
this issue because it “impermissibly considered the merits of [the defendants’]
underlying claims.” They contend that the trial court should have considered
whether the issue, “on [its] face,” fell within the lease agreements’ arbitration
provisions. In other words, they argue that the court should have limited its
arbitrability analysis to the parties’ allegations — concerning the enforceability
of the new parking rules and whether the plaintiffs violated them — to
determine whether the dispute falls within the arbitration agreement.

In Appeal of AFSCME Local 3657, we rejected a similar argument. See
Appeal of AFSCME Local 3657, 141 N.H. 291, 294-95 (1996). There, the
appellant argued that its conclusory allegation against the appellee was
sufficient, without more, to require submitting the dispute to arbitration under
the terms of the collective bargaining agreement (CBA), because “any
substantive review of the [agreement] would inappropriately involve” a decision
on the merits. Id. at 293-94. In rejecting this argument, we recognized our
adherence to the “positive assurance” test, which “raises a presumption of

10
arbitrability that, absent an express exclusion, may be defeated only by the
most forceful evidence of a purpose to exclude the claim from arbitration.” Id.
at 294 (quotation omitted). However, we held that this rule did not preclude us
from determining the arbitrability of a dispute, “even if this requires
interpreting the [agreement] to the extent necessary to determine whether the
dispute presents a colorable issue of contract interpretation.” Id. at 295
(quotation omitted). We therefore interpreted the relevant language of the CBA
to determine whether it was “susceptible of an interpretation that covers the
dispute.” Id. at 294-95 (quotation omitted) (concluding that the appellant’s
grievance failed to allege a violation of the terms of the CBA, and therefore was
not subject to arbitration under the CBA).

Here, the defendants can compel the plaintiffs to arbitrate a dispute, but
only if the dispute relates to a default on the part of the plaintiffs of a term of
the lease agreements. The defendants’ allegation that the plaintiffs refuse to
comply with the new parking rules forms the basis of their demands for
arbitration. Accordingly, it was proper for the trial court to interpret the terms
of the lease agreements to the extent necessary to determine whether the
defendants’ claim presents a colorable issue of contract interpretation —
specifically, whether the new parking rules upon which the alleged default is
based constitute enforceable terms of the lease agreements. We fail to see how
the defendants’ claim presents a colorable issue of contract interpretation when
their arbitration claim is based upon alleged violations of new, unilaterally-
imposed rules that would alter a material benefit previously bargained for by
requiring each plaintiff to pay hundreds of dollars every month to maintain
their current use of parking spaces. See In the Matter of Larue & Bedard, 156
N.H. 378, 381 (2007) (“It is a fundamental principle of contract law that one
party to a contract cannot alter its terms without the assent of the other party.”
(quotation omitted)). Moreover, given that the defendants do not challenge the
substance of the trial court’s ruling that the new parking rules are not
enforceable terms of the lease agreements, we conclude that, under the
circumstances before us, the defendants’ claim fails to present a colorable
claim of contract interpretation subject to arbitration under the lease
agreements.

The defendants point to the unpublished decision in Private Jet Services
Group, Inc. v. Marquette University, No. 14-cv-436-PB, 2015 WL 2228041
(D.N.H. May 12, 2015), to support their position regarding the trial court’s
arbitrability determination. However, in Private Jet, the federal court
concluded that the plaintiffs agreed to arbitrate the question of arbitrability
and, therefore, did not reach the question of arbitrability. Id. at *2-3.
Nonetheless, the defendants rely upon this case, in part, as an example of a
court expressing reluctance to scrutinize the facts to avoid deciding the merits
of the underlying dispute. Id. at *3. However, the federal court expressed this
reservation only after it had concluded that the arbitrability question should be

11
decided by the arbitrator. Id. Thus, we fail to see how this case advances the
defendants’ position

Accordingly, we affirm the trial courts’ orders denying the defendants’
motions to dismiss or stay pending arbitration. All arguments the defendants
raised in their notice of appeal, but did not brief, are deemed waived. In re
Estate of King, 149 N.H. 226, 230 (2003).

Affirmed.

LYNN, C.J., and HICKS and BASSETT, JJ., concurred.

12