Stanley B. Robbins, Trustee of the 500 Manchester Street Realty Trust & a. v. Stephen Zappala & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0460, Stanley B. Robbins, Trustee of the
500 Manchester Street Realty Trust & a. v. Stephen Zappala &
a., the court on April 16, 2019, issued the following order:

Having considered the briefs, the parties’ supplemental memoranda
addressing mootness, and the record submitted on appeal, we conclude that
oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We dismiss
the appeal as moot.

The doctrine of mootness is designed to avoid deciding issues that have
become academic or dead. LeBaron v. Wight, 156 N.H. 583, 585 (2007). It is
not, however, subject to rigid rules, but is instead regarded as a question of
convenience and discretion. Id.

In their supplemental memorandum of law, the defendants do not
dispute that the issue they raise — whether the trial court erroneously
interpreted two settlement agreements when it denied their cross-motion for
contempt and then reconsidered its denial of the motion, vacated its findings of
fact relative to it, and granted the plaintiffs’ request for an evidentiary hearing
— has been rendered moot by their decision to withdraw the contempt motion.
Instead, they urge us to address the issue on its merits, because, they assert,
future litigation between the parties relative to their rights and obligations
under the agreements “is not only a virtual certainty[,] but is likely imminent.”

Although we have recognized that a decision on the merits of a moot
issue may be justified if future litigation may thereby be avoided, it is still
within our discretion not to decide a moot issue on that basis. See id. In this
case, even if the trial court erroneously interpreted the agreements, as the
defendants contend, so as to require them to comply with the enforcement
procedures of the 2015 agreement, the defendants still bore the burden to
prove that the plaintiffs violated the 2015 agreement in a manner that triggered
the penalties provision of the 2016 agreement. The plaintiffs disputed that
they had triggered the penalties provision, and the trial court, on
reconsideration, vacated its factual findings concerning the plaintiffs’
compliance with the 2015 agreement and granted their request for an
evidentiary hearing. That hearing never occurred, and the trial court never
issued a final ruling on the contempt motion, prior to the defendants’
withdrawal of it. Any future litigation between the parties concerning the
defendants’ entitlement to penalties will, likewise, raise the factual question of
whether the plaintiffs violated the 2015 agreement. Under these
circumstances, we decline to address the merits of the trial court’s
interpretation of the agreements, and dismiss the appeal.

Dismissed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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