Arnold Alpert & a. v. New Hampshire Motor Speedway, Inc. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0344, Arnold Alpert & a. v. New
Hampshire Motor Speedway, Inc. & a., the court on February
21, 2019 issued the following order:

Having considered the briefs and the record submitted on appeal, the
court concludes that a formal written opinion is unnecessary in this case. The
plaintiffs, Arnold Alpert, Judith Elliott, and James Snyder, seek our review of
an order of the Superior Court (McNamara, J.) granting summary judgment in
favor of the defendants, New Hampshire Motor Speedway, Inc. (NHMS) and the
Town of Loudon (Town). On appeal, the plaintiffs challenge the trial court’s
ruling that the term “premises,” as used in a 1989 Settlement Agreement
between certain residents of the Town and NHMS’s predecessor in interest, did
not apply to property acquired after the agreement was made. We affirm.

The following facts are taken from the trial court’s summary judgment
order and from undisputed documentary evidence contained in the record. In
1988, Robert Bahre, NHMS’s predecessor in interest, purchased certain
property, then known as the Bryar Motorsports Park, in Loudon, New
Hampshire. At the time, the property consisted of two separate parcels that
were in common ownership. One parcel contained a physical racetrack, which
was owned by 106 Midway-Raceway, Inc., and shared a common boundary
with the second parcel. Mr. Bahre purchased the property (containing both
parcels) with the intention of building a racetrack suitable for National
Association of Stock Car Racing (NASCAR) races, and formed a corporation
called New Hampshire Speedway, Inc. (NHS) to achieve that purpose. Prior to
Mr. Bahre’s purchase, the racetrack primarily hosted motorcycle races and
other smaller events.

In December 1988, the Loudon Planning Board approved NHS’s proposed
expansion of the racetrack. During this time frame, Mr. Bahre began referring
to the racetrack as the “New Hampshire International Speedway” (NHIS). NHIS
was the only property owned by NHS in December 1988. In January 1989,
following the planning board’s approval, James Snyder and three other
individuals filed suit challenging the board’s decision. Specifically, they sought
review of the board’s approval of NHS’s site plan, alleging that their properties
would be directly affected by the development. Although Arnold Alpert and
Judith Elliott were not parties to this lawsuit, they were involved in the
opposition to the proposed expansion; the pair created an informal group called
“Concerned Racetrack Neighbors” that sought to mitigate the impact that the
expansion would have on the community.
 In May 1989, the parties ultimately agreed to settle the matter. In
essence, the plaintiffs in the litigation, as well as Mr. Alpert and Ms. Elliott,
agreed “to cease all opposition to the racetrack expansion” and, in return, NHS
agreed to certain covenants that regulated its use of the property. The
agreement, which is binding on NHS’s successors, was filed in the Merrimack
County Registry of Deeds.

In the years following the settlement, NHS purchased four more parcels
of land in Loudon. In 2008, NHMS acquired NHS, including the land
previously held by NHS in Loudon. Thereafter, the planning and zoning boards
approved NHMS’s request to host concerts on the properties that were acquired
after the 1989 litigation. The plaintiffs filed suit, arguing that the 1989
settlement agreement barred NHMS from holding concerts on the land. On
cross-motions for summary judgment, the trial court ruled that the 1989
agreement did not apply to the property acquired after the 1989 settlement.
This appeal followed.

The question presented for our review is narrow: do the terms of the
1989 settlement apply to any and all property later acquired by NHS or its
successors? The plaintiffs argue that they do. In their view, the term
“premises,” as used in the agreement, means all property that could reasonably
be associated with NHMS’s business. We disagree.

Because of their contractual nature, settlement agreements “are
generally governed by principles of contract law.” Poland v. Twomey, 156 N.H.
412, 414 (2007). “The interpretation of a contract, including whether a
contract term is ambiguous, is ultimately a question of law for this court to
decide.” Sherman v. Graciano, 152 N.H. 119, 121 (2005). Thus, we review the
trial court’s interpretation de novo. Id. During our review, “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.” Lawyers Title Ins. Corp. v. Groff, 148 N.H.
333, 336-37 (2002) (quotation omitted). In the absence of ambiguity, “the
parties’ intent will be determined from the plain meaning of the language used
in the contract.” Id. at 337 (quotation omitted). Contractual language will only
be considered ambiguous “when the contracting parties reasonably differ as to
its meaning.” Appeal of Town of Durham, 149 N.H. 486, 487 (2003) (quotation
omitted). Should we conclude that an ambiguity exists, we must then
determine “what the parties, under an objective standard, mutually understood
the ambiguous language to mean.” Gen. Linen Servs. v. Franconia Inv.
Assocs., 150 N.H. 595, 597 (2004).

Paragraph 1 of the agreement reads as follows: “New Hampshire
Speedway covenants that it shall not permit any musical concerts of any type
or description to be held on the premises currently known as New Hampshire
International Speedway (‘premises’) except in conjunction with racing events.”

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Relying on State v. Thiel, 160 N.H. 462 (2010), the plaintiffs assert that the
term “premises” refers to “the property which a reasonable observer would
perceive to be part of NH Motor Speedway,” including all land now associated
with NHMS’s business. The definition utilized in Thiel, however, does not
support the conclusion that the plaintiffs desire.

In Thiel, the defendant was charged with shoplifting from a Wal-Mart
store after being caught with merchandise in the store’s vestibule. Id. at 463-
64. At the time of the offense, the criminal statute prohibiting shoplifting
required that the person “knowingly [remove] goods or merchandise from the
premises of a merchant.” Id. at 465 (quotation and ellipsis omitted). The
defendant argued that she was erroneously convicted because she did not leave
the premises with the merchandise. Id. We agreed, defining the term
“premises” for purposes of the statute to mean “the place of business of an
enterprise or institution.” Id. at 466 (quotation and citation omitted). Our
interpretation was further supported by the statutory scheme, which, at the
time, defined two separate crimes: shoplifting and willful concealment. Id.
Willful concealment required that the person conceal “the goods or
merchandise . . . while still upon the premises of [the] store,” whereas
shoplifting required that the person remove the items from the store’s
premises. Id. Thus, defining “premises” to mean the entire business made
sense given that the trial court’s limitation of the term only to the sales area
would have extinguished the need for two separate crimes, thereby placing the
statutory language in direct conflict with the intent of the legislature. Id.

Here, however, the agreement specifies its reach — “the premises
currently known as New Hampshire International Speedway.” Unlike the
statute at issue in Thiel, which dealt with a geographic location, the settlement
agreement ties the definition of premises to a particular point in time —
namely, 1989. Cf. 8A Lawrence’s Anderson on the Uniform Commercial Code
§ 9-204:34, at 862 (3d ed. 2005) (noting that when a “security agreement
describes the collateral as being owned by the debtor as of a certain date, it
necessarily excludes after-acquired property”). Indeed, the term “currently” is
defined to mean “at present.” Webster’s Third New International Dictionary
557 (unabridged ed. 2002).

Other portions of the agreement also expressly illustrate that its terms
were only expected to govern the specific property owned in 1989. For
example, the introductory paragraph states that the agreement was “in
settlement of all claims arising from [the 1989 lawsuit] and all other objections
to New Hampshire Speedway’s proposed racetrack project.” Paragraph 9
specifically required that NHS “install man-made barriers” on the premises and
Paragraph 10 speaks of protecting the “Wetlands on the premises.” Taken
together, these provisions show that the parties to the settlement agreement
were focused solely on the specific property owned by NHS in 1989 and crafted
the agreement to squarely address the concerns surrounding the planned

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expansion of the property at that specific point in time. See Lawyers Title Ins.
Corp., 148 N.H. at 336-37 (explaining that we must read the entire contract as
a whole and in the context from which it arises). Accordingly, we conclude that
the trial court did not err.

Affirmed.

LYNN, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.

Eileen Fox,
Clerk

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