UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Lakeview Neurorehabilitation

Center, Inc.; Lakeview

Neurorehab Center Midwest, Inc.;

and Lakeview Management, Inc.,

Plaintiffs

v. Civil No. 07-cv-303-SM

Opinion No. 2008 DNH 109

Care Realty, LLC; and

THCI Company, LLC,

Defendants

O R D E R

This suit was removed from the New Hampshire Superior Court. 

It arises out of plaintiffs’ unsuccessful attempt to extend the

terms of leases on several medical facilities. Plaintiffs,

lessees, seek a declaratory judgment that they have not defaulted

under the leases and are entitled to extensions (Count I). In

addition, they assert claims of breach of contract (Counts II &

III), tortious interference with business relations (Count IV),

and violation of N.H. Rev. Stat. Ann. ch. (“RSA”) 354-A (Count

V). Defendants assert six counterclaims.

Before the court is defendants’ motion for partial summary

judgment (document no. 34), in which they argue that “to the

extent Lakeview is deemed to have properly exercised an extension

Case 1:07-cv-00303-SM Document 80 Filed 05/27/08 Page 1 of 3
2

of the initial lease term under the Amended Lease, Lakeview

unequivocally repudiated this extension in emails to THCI on

August 22-23, 2007.” Defendants argue that a determination that

plaintiffs repudiated the lease extension entitles defendants to

judgment as a matter of law on: (1) Count I of plaintiffs’

complaint to the extent plaintiffs seek declaratory relief

related to their breach of contract claims; (2) Counts II and III

of plaintiffs’ complaint; and (3) Count V of their counterclaim. 

Plaintiffs object.

Defendants’ argument suffers from a basic problem. Under

applicable New Hampshire law, the doctrine of anticipatory

repudiation applies only when an agreement exists — that is,

plaintiffs could only repudiate an existing agreement. See

Syncom Indus., Inc. v. Wood, 155 N.H. 73, 83-84 (2007) (citing

LeTarte v. West Side Dev. Group, 151 N.H. 291, 294 (2004)). The

agreement defendants posit is an extension of the original leases

on the facilities at issue. Given that plaintiffs’ complaint

alleges that no extension was ever agreed upon (Sec. Am. Compl.

¶¶ 29, 42), and given that defendant THCI “contends that . . .

[plaintiffs] never properly exercised this option [to extend the

lease]” (Defs.’ Mem. of Law (document no. 34-2) at 2), and given

that defendants have produced uncontroverted evidence that no

Case 1:07-cv-00303-SM Document 80 Filed 05/27/08 Page 2 of 3
1 That evidence consists of e-mails dated August 22 and 23,

2007, in which plaintiffs wrote: (1) “Please accept this e-mail

as notification that the deadline has [passed] and we regret that

we were unable to work out the lease extension.” (Defs.’s Mot.

Summ. J., Ex. 4); and (2) “Tony wanted to be sure that you did

receive his e-mail last night stating that the time for

negotiations had passed and that we need to move quickly on

transition. We do regret that we were unable to work out an

extension.” (Id., Ex. 5).

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agreement was ever reached on a lease extension,1 the court

cannot find, in this record, that Lakeview effectively extended

the lease terms. Because the record, as developed, does not

establish a necessary factual predicate — that the lease terms

were effectively extended — defendants are not entitled to

summary judgment on an (irrelevant) anticipatory repudiation

legal theory. The motion (document no. 34) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

May 27, 2008

cc: Christopher H. M. Carter, Esq.

Daniel M. Deschenes, Esq.

Ovide M. Lamontagne, Esq.

Jonathan M. Shirley, Esq.

Leigh S. Willey, Esq.

Case 1:07-cv-00303-SM Document 80 Filed 05/27/08 Page 3 of 3