New Hampshire Water Resources Council v. Steels Pond Hydro, Inc.

855 A.2d 541, 151 N.H. 214, 2004 N.H. LEXIS 119
CourtSupreme Court of New Hampshire
DecidedJune 30, 2004
DocketNos. 2003-669; 2003-689
StatusPublished
Cited by2 cases

This text of 855 A.2d 541 (New Hampshire Water Resources Council v. Steels Pond Hydro, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Hampshire Water Resources Council v. Steels Pond Hydro, Inc., 855 A.2d 541, 151 N.H. 214, 2004 N.H. LEXIS 119 (N.H. 2004).

Opinion

Dalianis, J.

In these, consolidated cases, the plaintiff, New Hampshire Water Resources Council (WRC), appeals decisions of the Superior Court (Fitzgerald, J.) granting summary judgment to the defendants, Steels Pond Hydro, Inc. (Steels Pond) and Pittsfield Hydropower Company, Inc. (Pittsfield Hydro). We affirm in part, reverse in part and remand.

The WRC owns the Steels Pond Dam and the Pittsfield Mill Dam, and leases one to each defendant. The defendants use the dams for hydroelectricity production. The WRC entered into fifty-year lease agreements with Pittsfield Hydro in 1981, and with Steels Pond in 1988. The leases are not identical, but they have similar rent payment structures by which the defendants must pay annually to the WRC a percentage of revenue “received from power sales.”

Both defendants sold power to Public Service of New Hampshire (PSNH) pursuant to a rate order approved by the New Hampshire Public Utilities Commission (PUC). In 2002, the defendants signed agreements with PSNH that provided for lump sum payments from PSNH to the defendants in exchange for lower rate orders. The PUC approved the new rate orders.

The WRC contends that the lump sum payments from PSNH to the defendants are monies received from power sales, and, therefore, the [215]*215WRC is entitled to a percentage of the payments under the lease agreements. The defendants argue that the payments are consideration for the defendants’ lowering the rate orders, and are not revenue received from power sales under the plain meaning of the lease agreements.

The superior court granted the defendants’ motions for summary judgment, finding that the “language in the lease is not ambiguous” and the term “power sales” in the lease agreements does not apply to the lump sum payments from PSNH to the defendants. The superior court found that “[t]he plain meaning of the term power sales is the exchange of power for consideration,” and “PSNH did not pay [the defendants] for power.”

In reviewing the trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Big League Entm’t v. Brox Indus., 149 N.H. 480, 482 (2003). If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id. We review the trial court’s application of the law to the facts de novo. Id.

We turn to the lease agreements to determine whether the WRC is entitled to a percentage of the lump sum payments. 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). In the absence of ambiguity, the intent of the parties to a lease is to be determined from the plain meaning of the language used. Echo Consulting Services v. North Conway Bank, 140 N.H. 566, 569 (1995). The words and phrases used by the parties will be assigned their common meaning, and we will ascertain the intended purpose of the lease based upon the meaning that would be given to it by a reasonable person. ELCA of N.H., Inc. v. McIntyre, 129 N.H. 114, 116 (1987). The meaning of a contract is ultimately a matter of law for this court to decide, including the determination of whether a contract term is ambiguous. Echo Consulting Services, 140 N.H. at 569.

Paragraph 13(b) of the lease between the WRC and Pittsfield Hydro requires Pittsfield Hydro, as lessee, to pay rent equal to a percentage of “adjusted gross operating revenue received from power sales at the facility, (hereinafter ‘AGR’)”; the percentage of AGR to be paid to the WRC rises over the fifty-year lease term, capping at “10.0% of AGR for years 16 through 50 inclusive.”

Similarly, paragraph 14(b) of the lease between the WRC and Steels Pond sets forth the rent to be paid to the WRC: “Twenty percent (20%) of GR [Gross Revenue] received from power sales at the Facility for years eleven (11) through fifty (50), inclusive.” Paragraph 14(a)(i) defines “Gross [216]*216Revenue” as “income received by [Steels Pond] from the sale of electrical power produced by the Facility at the Premises.” Both leases provide for a graduated rent based on a percentage of “power sales at the facility.”

The defendants paid the WRC a percentage of the original PSNH rate orders pursuant to the lease agreements until 2002, when the defendants and PSNH renegotiated for the new, reduced rate orders. There is no provision in the lease agreements for adjustments of rate orders.

The WRC contends that “revenue received from power sales” includes any income received by the defendants that is “tied to the product sold using the State’s resources (the dam, impounded water and flowage rights).” The WRC argues that the lump sum payments were tied directly to revenue from power sales because they were conditioned on a total reduction in future payments for power; additionally, the lump sum payments were “calculated to be equal to the difference between what PSNH would have paid [to the defendants] for the power under the existing rate order[s] or power contracts] and what it anticipates it will not pay for the same amount of replacement power” under the new rate orders or power contracts. Thus, the WRC asserts that the lump sum payments are for “future power production” and, therefore, must be considered when calculating the percentage of “AGR” or “GR” owed by the defendants to the WRC for rent.

In the alternative, the WRC argues that the term “power sales” in the lease agreements is ambiguous because the WRC and the defendants reasonably disagree as to the meaning of the rental language in the lease agreements. See Woodstock Soapstone Co. v. Carleton, 133 N.H. 809, 815 (1991). The WRC contends that we should remand to the superior court for a hearing to determine the proper interpretation of the ambiguous lease.

The defendants argue that the superior court properly found that “the plain and unambiguous language of the lease says that rent is calculated using a percentage of the money from power sales,” and “the plain meaning of. the term power sale is the exchange of power for consideration.” The defendants contend that there was no exchange of power; rather, PSNH paid money to the defendants to terminate the rate orders and to reestablish the rates at which they would sell PSNH power in the future. Therefore, the plain meaning of “power sales” does not apply to PSNH’s buy down of the rate orders.

We agree with the superior court that the lease agreements are clear and unambiguous. Under their plain terms, the WRC is entitled to a percentage of revenue from the sale of power. The common meaning of “sale” is: “the act of selling: a contract transferring the absolute or general ownership of property from one person or corporate body to another for a price.” Webster’s Third New International Dictionary 2003 [217]*217(unabridged ed. 2002). Thus, in order for a “power sale” to occur, the defendants must transfer power to another for a price.

We agree with the superior court that under the lease agreements, the defendants are obligated to pay a percentage only of money received for power that is actually exchanged for consideration. In this case, the defendants did not actually create or provide any power in exchange for the lump sum payments.

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855 A.2d 541, 151 N.H. 214, 2004 N.H. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-hampshire-water-resources-council-v-steels-pond-hydro-inc-nh-2004.