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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.
2

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, CluffLandry 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 
3

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 
4

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 
5

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.
6

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 
7

[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, 
8

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 
9

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 
10

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 
11

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, unilaterallyimposed 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 
12

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.