Pope v. Lee

879 A.2d 735, 152 N.H. 296, 2005 N.H. LEXIS 96
CourtSupreme Court of New Hampshire
DecidedJune 3, 2005
DocketNo. 2004-314
StatusPublished
Cited by5 cases

This text of 879 A.2d 735 (Pope v. Lee) 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
Pope v. Lee, 879 A.2d 735, 152 N.H. 296, 2005 N.H. LEXIS 96 (N.H. 2005).

Opinion

BRODERICK, C.J.

The defendant, Nancy Moran Lee, appeals an order of the Superior Court (Coffey, J.) ruling that because a 1998 lease agreement between herself and the plaintiffs, David A. Pope and Suzanne M. Pope, individually and as trustees of the David A. Pope 1990 Revocable Trust and the Woodie 1990 Revocable Trust, did not confer upon her the right to perpetual renewals of the lease, she was a tenant at will. We issued an opinion, on April 8,2005, reversing the superior court. The plaintiffs filed a motion for reconsideration. We granted that motion in part, and withdrew our original opinion. We now reverse.

The following facts were found by the trial court or appear in the record. The plaintiffs own a seasonal ice cream and food service establishment located in North Hampton and known as the “Beach Plum Ice Cream Shop.” The defendant leased the premises from 1993 to 1997 under several different annual lease agreements, most of which contained virtually identical terms, and the last three of which ran for eight-month terms starting in May and ending in December. Between 1993 and 1997, the plaintiffs, on several occasions, unsuccessfully applied for a variance to [298]*298expand the food menu offered on the premises. See Pope v. Little Boar’s Head Dist., 145 N.H. 531 (2000).

On July 22, 1998, the parties executed a new lease that ran for approximately six and one-half months, starting on May 1, 1998, and extending to November 15, 1998. Article 2.2 of the 1998 lease, entitled “Option to Renew,” provided:

The [defendant] shall have the option to renew this lease in 1999 and automatically thereafter with certain exceptions stated herein. The lease payment schedule will be determined by the outcome of the legal action being taken against the Town Of North Hampton, New Hampshire on July 27,1998. If the ease is determined by the courts to be in favor of [the plaintiffs], the rent shall be increased to reflect [the defendant’s] flexibility in offering to its customers a larger menu. After said increased [sic] has been established, then all subsequent lease years after this rent increase shall be calculated using the applicable “CPI [consumer price index] INDEX” mutually agreed upon by [the parties]. The CPI Index can be either the US CPI or the BOSTON CPI or an average of both. [The defendant] must notify [the plaintiffs] by February 1st if the lease will not be renewed. Any automatic lease renewal must be subject to the following clause[:] In the unlikely event that anyone [sic] of our four children should be beset by a financial crisis and be forced by necessity to operate the icecream [sic] stand as a source of survival income, then the lease would terminate. NOTE! This clause would only take effect in a desperate situation as none of our children wish to operate the stand.

The lease also contained a “tax escalator” clause, under which the defendant was responsible for fifty percent of any real estate tax increase above the 1998 base year amount of $8,648.22. A “rental modification” clause in the lease provided:

[The plaintiffs are] currently proceeding with [their] plans to take the Town Of North Hampton to court over the “menu” issue. It is understood and agreed upon by both the [plaintiffs] and the [defendant] that should the [plaintiffs] be awarded a favorable judgment to change the menu and thereby allow the [defendant] to offer other food items, [the defendant] agrees to pay [the plaintiffs] an additional $1,000 of rental. The gross adjusted rental for the “season” shall therefore be $18,000. If a favorable [299]*299judgement is not rendered by August 10th, 1998 allowing a menu change, then this clause is null and void for the 1998 season.

The plaintiffs did not receive a favorable judgment by August 10, 1998, and, therefore, the defendant paid the plaintiffs $17,000 to rent the premises for the 1998 term.

The defendant again leased the premises in 1999. The 1999 lease agreement contained substantially the same provisions as the 1998 agreement, and was signed only by the defendant. The first sentence of article 2.2 of the 1999 lease, the renewal provision, was, in substance, identical to the 1998 lease: “The [defendant] shall have the option to renew this lease in 2000 and automatically thereafter with certain exceptions stated herein.” Although the word “option” was crossed out and the word “right” was written in, the change was initialed only by the defendant. An asterisk at the end of the sentence referred to a handwritten note inserted below the renewal provision that read: “The lease shall automatically renew each and every year unless [the defendant] provides the [plaintiffs] with notice of [her] intent to terminate prior to March 15th of any year.” Both the defendant and David A. Pope initialed the foregoing note. Additionally, the record contains a letter dated June 14,1999, from David Pope to the defendant, which discussed several items appearing in the 1999 lease and which read, in relevant part: “The lease shall use the words [sic] ‘option’ rather than ‘right,’ but the terms and general conditions will stay the same.”

The 1999 lease contained several handwritten changes, only some of which were initialed by both parties. Despite the lack of mutually initialed changes and the fact that only the defendant signed the lease, the parties treated the 1999 lease as a renewal of the 1998 lease. Pursuant to the rental modification provision in the 1999 lease, the defendant paid the plaintiffs an additional $1,500 in rent as a result of the plaintiffs having obtained a favorable judgment in the menu litigation with the Town of North Hampton.

On April 3, 2000, the parties again renewed the 1998 lease agreement, this time by executing a document entitled “Lease Amendment.” The 2000 amendment was “made part of the lease agreement dated July 22, 1998” and contained both a rental increase and a rental adjustment clause. Under the rental increase provision:

Both parties agree that the annual increase in “base rental” shall be calculated at a 3.5% annual increase for the “2000 summer season rental year” AND for future rental seasons. This will alleviate any confusion over “how” to calculate the increase. [300]*300The 50% share in any [real estate] tax increase shall remain as stated in the 1998 lease agreement.

The rental adjustments section provided for a prorated decrease in rental payments in the event this court reversed the trial court’s decision in Pope v. Little Boar’s Head District.

On June 1, 2001, the parties renewed the 1998 lease a third time by executing a document titled “Ice Cream Shop Lease Addendum.” The 2001 addendum was “made part of the lease agreement executed on July 22, 1998 and the Lease amendment dated April 3, 2000.” The 2001 addendum contained rent and tax figures for the 2001 season only, and specified that the plaintiffs or their agent would be forwarding to the defendant “new language pursuant to the legal issues surrounding the food menu.”

In July 2001, the plaintiffs and the Little Boar’s Head District entered into a settlement agreement to resolve the menu litigation, pursuant to which the plaintiffs were permitted to expand the menu to serve additional items on the premises. On April 15, 2002, the plaintiffs, through their attorney, forwarded to the defendant a new lease agreement for the 2002 term.

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Bluebook (online)
879 A.2d 735, 152 N.H. 296, 2005 N.H. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pope-v-lee-nh-2005.