Plaintiffs Appeal Brief 0910

THE STATE
THE OT'I\EW
STATE OF HAMPSHIRE
NEW HAMPSHIRE
COI]RT
SUPREME COURT
SUPREME
Docket No. 2010-0179

Docket No. 2010-0179
B.V. BROOKS,
B.V. BnooKS, KENNETH Crenrç JR.,
KENNEnT F. CLARK, MarusR KANE,
JR., MAruSA KANE,
JOlIN Pltnucnrr, DOUGLAS
Jom,l H. PLUNKETT, Doucr,es R. R¡rcure, ROBERT
R. RAICHLE, RoneRt G. REED
R¡en III, AND
aNo JOHN Srenr
Joril.l STEEL III
Appellants
Appellants
v.
or DARTMOUTH
Tnusrnrs OF
TRUSTEES DeRrvrourn COLLEGE
Cor,r,ncn
Appellee
Appellee
RULE MAI\DATORY APPEAL

RT]LE 7 MANDATORY FROM
APPEAL FROM
COUNTY SUPERIOR
GRAFTON COUNTY
GRAFTON SIIPERIOR COURT'S
CO[]RT'S GRANT
GRANT OF
OF
DEFENDANT/APPELLEE'S MOTION FOR
DEEENDAIIT/APPELLEE'S MOTION FOR SUMMARY
ST]MMARY JUDGMENT
JT]DGMENT
BRIEF OF
BRIEF PLAINTIFFS/ APPELLANTS
OF PLAINTIFFS/ APPELLA¡ITS
Eugene #260I
Eugene M. Van Loan III, Esq., Bar #2601
)
Wadleigh, Starr
Wadleigh, PLLC
Sta¡r & Peters, PLLC
95 Market
Market Street
Street
Manchester,
Manchester, NH 03101
603-669-4140
603-669-4140
(Counsel to Argue)
(Counsel
Stephen
Stephen J. Judge, Esq., Bar #1292
#7292
Wadleigh,
Wadleigh, Starr & Peters, PLLC
PLLC
95 Market
Market Street
Street
Manchester,
603-669-4140
603-669-4140
I.
I. CONTENTS
TABLE OF CONTENTS
Pase
I.
L TABLEOFCONTENTS...
TABLE OF CONTENTS ....... ii
II. TABLEOFAUTHORITIES
TABLE OF AUTHORITIES ...... iv
IV
m. QUESTIONS
m. QUESTIONSPRESENTED..
PRESENTED . ......11
TV. STATEMENT
IV. THEUNDISPUTED
STATEMENT OF THE CASE AND THE FACTS .. .
UNDISPUTED FACTS . . . . . . . . .2
2
V.
V. ARGUMENT
SUMMARY OF ARGUMENT
SUMMARY .. . . .74
14
VI. ARGUMENT
VI. ARGUMENT,... ,.......T4
14
A. Preliminary Matters.
A. Matters. . . . . .. 14
B. Since
B. the Undisputed
Since the Undisputed Facts
Facts Establish That the
Establish That the Parties to the
Parties to 1891 . . . .... 15
the 1891
Agreement
Agreement Intended
Intended and
and Expected Alumni Such as
Expected Alumni as the Plaintiffs to Be
the Plaintiffs
Individually Benefited
Individually by and
Benefited by and Have Rights under
Have Rights under the Contract, the
the Contract, the
Superior
Superior Court Was Enor in Ruling
Was in Error Ruling That the Plaintiffs Do Not
the Plaintiffs Not Have
Have
Standing
Standing as
as Third-Party
Third-Parfy Beneficiaries to Sue
Beneficiaries to in Their
Sue in Their Own
Own Names
Names to
Enforce
Enforce this Contract.
C. The
C. TheSuperiorCourtAssumed,WithoutDeciding,
Superior Court Assumed, Without Deciding, That ThatthePlaintiffsDo
the Plaintiffs Do .......19
19
Have
Have Standing as
as Members
Members of the Association
ofthe Association to Bring Suit in Their Own
Own
Names
Names toto Enforce the 1891
Enforce the 1891 Agreement.
Agreement. TheThe Undisputed
Undisputed Facts
Facts Indeed
'Was
Confirm That
Confirm the Superior
That the Court's Assumption
Superior Court's Assumption Was Correct
Correct And,
And,
Therefore,
Therefore, Such a Ruling
Ruling Is Compelled this Case.
Compelled in this
D. Even Ifthe
D. lf the 1891 Agreement
Agreement Isls Deemed
Deemed Not to Be a Contract Between the
'Who
the . . . . . . . 20
Association and
Association and the College, the
the College, Plaintifß, as
the Plaintiffs, as Persons
Persons Who thethe
Undisputed Facts
Undisputed Facts Establish
Establish That
That the
the College
College Should
Should Reasonably
Reasonably Have
Have
Expected
Expected to Rely upon its Promises
upon its Promises Regarding
Regarding Parity
Parity and Who Have
and'Who Have in
Fact Taken Actions
Actions in Reliance
Reliance upon
upon the
the College's
College's Said Promises,
Promises, Have
Have
Standing under the Doctrine
Doctrine of Promissory Own
Promissory Estoppel to Sue in Their Own
Names
Names to Enforce
Enforce the
the College's
College's Promises.
Promises.
)
Page
E. Even If the Filing
Filing of aa "With
"'With Prejudice" VoluntaryDismissal
Prejudice" Voluntary Prior
Dismissal of the Prior
Lawsuit
Lawzuit Might, under Ordinary Circumstances,
Circumstances, Have Provided B asis for
Provided a Basis 21
the College's
C ollege' s Assertion
Assertion of the Defense
D efen se of Res
Re s Judicata, the College Should
Judi c at a,the
Be Denied thethe Opportunity
Opportunity to Avail Itself of Such a DefenseDefense in this Case
Where
Where the the Undisputed
Undisputed Facts Establish (A)
Facts Establish (A) That
That the the Association's
Association's
Executive
Executive Committee
Committee Had Had Not Been Authorized
Authorized by the AlumniAlumni to Take
Any Action
Action Which
Which Would
Would Extinguish the Association's Alumni's
Association's or the Alumni's
Legal Rights
LegalRights to Parity, (B) That the Association
Association and the Alumni
Alumni Received
Absolutely Nothing in ReturnRetum for the Executive
Executive Committee's
Committee' s Dismissal
Dismiss al ofof
the
the Prior
Prior Lawsuit
Lawsuit "With"With Prejudice," (C) That
and (C)
Prejudice," and That the the College Itself
College Itself
Colluded
Colluded with
with the
the Association's
Association's Executive
Executive Committee
Committee and Orchestrated
Orchestrated
the
the Preparation
Preparation and Filing the "With
Filing of the "With Prejudice" Dismissal in Such a
Prejudice" Dismissal
Manner
Manner That
That the Alumni Would
the Alumni Would NotNot Find
Find out until it Was
out about it until Was Too
Late.
F. The
The Judiciary
Judiciary Should Not Be
Should Not Be Barred the So-called
Ba:red by the Bricker Doctrine
So-called Bricker 26
from
from Inquiring into the
Inquiring into the Irregularities
I:regularities Surrounding
Surrounding thethe Preparation
Preparation and
Filing of the
the "With Prejudice" Dismissal
Prejudice" Dismissal of the Prior Lawsuit'Where
Lawsuit Where the
Actions
Actions of the
the Association's
Executive Committee Withdrawing the
Committee in Withdrawing
Prior Lawsuit with Prejudice
Prejudice Did Not Not Involve Dispute
Involve Some Mere Policy Dispute
over
over the Association's Internal
Association's Internal Affairs, but
but Instead
Instead Arguably
Arguably Effected
Effected a
Relinquishment
Relinquishment of of Important
hnportant Legal Rights of
Legal Rights of the
the Association and its
Association and
Members
Members Vis-a-vis
Vis-à-vis an Outside
Outside Third Party,
Parb/, I.e., the
the College, Where
College, and Where
the Party Attempting
Parly Attempting to Claim
Claim the Benefit
Benefit of the Bricker
Bricker Doctrine
Doctrine Not
Is Not
the Association,
Association, but Is Instead
Instead the
the College.
G. 'Where the Undisputed Facts Establish (A) That

Where That the
the Plaintiffs Had No
Plaintiffs Had 29
G. the Undisputed Facts Establish
Personal Involvement
Involvement in the Prior Lawsuit, (B) That, as ofthe
of the Time ofthe
of the
Filing
Filing of the
the Plaintiffs'
Plaintiffs' Lawsuit,
Lawsuit, the Plaintiffs' Third-party
the Plaintiffs' Beneficiary
Third-party Beneficiary
Rights
Rights Could Not Be Extinguished
Extinguished Because Their Rights Had Vested, and
(C) in Any
(C) Any Case, That Neither Plaintiffs Personally
Neither the Plaintiffs PersonallyNor Alumni
Nor the Alumni
in General
in Had Taken
General Had Taken Any Any Action
Action oror Authorized
Authorized the the Executive
Executive
Committee
Committee of of the
the Association
Association to to Take Any Action
Take Any Action to to Extinguish
Extinguish the
Association's
Association's or the Alumni's Legal
the Alumni's Legal Rights Parit¡ Such Undisputed
Rights to Parity, Undisputed
Facts Compel a Ruling in this Case That the Plaintiffs' Third-party
Facts Compel a Ruling in this Case That the Plaintiffs' Third-party
Beneficiary
Benefi ciary Claims
Claims Are
Are Not
Not Barred
Ba:red by Res Judícata.
-Res Judicata.
ii
11
Page
H. the Undisputed
Where the
Where Undisputed Facts Establish (A) That
Facts Establish That the
the Plaintiffs
Plaintiffs Had
Had No
Ilrvolvement in the Prior Lawsuit, (B) That, as of
Personal Involvement the Time of the
ofthe 31
Filing ofthe Plaintiffs' Lawsuit, the Plaintiffs'
of the Plaintiffs' Plaintiffs' Rights
Rights to Bring Claims
Claims in
Promissory Estoppel
Promissory Estoppel Could NotNot Be Extinguished Because
Be Extinguished Because Their Rights
Rights
, Had Vested, and (C)
Nor the
Nor Alum¡i in
the Alumni
(C) in Any Case, That Neither the Plaintiffs
in General Had
Had Taken
Taken AnyAny Action
Plaintiffs Personally
Action or Authorized
Authorized the
the
Executive Committee
Executive Committee of the Association
Asso ciation to Take Any Action to Extinguish
the Association's Alumni' s Legal Rights
As sociation' s or the Alumni's Ri ghts to Parity,
P arity, Such Undisputed
Undisputed
Facts Compel Plaintiffs' Claims
Compel aa Ruling in this Case That the Plaintiffs' Claims Based
Based upon
upon
Promissory Estoppel Are
Promissory Estoppel Are Not
Not Barred by Res
i?es Judicata.
Judicata.
'Where
I. Where thethe Undisputed
Undisputed Facts
Facts Establish (A) That
Establish (A) That the Plaintiffs Had
the Plaintiffs Had No 32
Involvement in the Prior Lawsuit, (B) That Both the Association
Personal Involvement Association
Plaintiffs, as Individual
and the Plaintiffs, Individual Members
Members Thereof,
Thereof, Have
Have Standing to Sue
Enforce the
to Enforce the 1891 Agreement,
Agreement, and (C) in Any Case,
md (C) Case, That Neither the
Plaintiffs Personally
Plaintiffs Alumni in General Had
Nor the Alumni
PersonallyNor Had Taken Any Action
AnyAction
Authorized the
or Authorized the Executive
Executive Committee
Committee of the Association
Association to Take Any
Any
Action to Extinguish
Action Extinguish the Association's
Association's or the Alumni's Legal Rights
the Alumni's Rights to
Parity, Such
Parity, Undisputed Facts
Such Undisputed Facts Compel Ruling in
Compel aa Ruling in this
this Case
Case That the
the
Plaintiffs' Claims
Plaintiffs' Claims as Members
Members of the Association
Association Are
Are Not
Not Barred
Ba:red by Res
by.Res
Judicata.
Judicata.
VII.CONCLUSION.
Vtr. CONCLUSION .....34
34
ORDERAPPEALEDFROM
VIII. ORDER APPEALED FROM
VIII. ......36
36
iii
111
II. TABLE OF AUTHORITIES
II. AUTHORITIES
) CASES
CASES Page
Aranson v. Schroeder,
Aranson Schroeder, 140 N.H. 359 (1995). . .
359 (1995).. . . . 30
Association of Alumni of Dartmouth College v. Trustees of Dartmouth College.
GraftonSuperiorCourt#07-E-289
Grafton Superior Court #07-E-289 .....33
Beliveau v. Amoskeag
Beliveau Amoskeag Manufacturing
Manufacturing Co., 68 N.H. 225
225 (1894)..
(1894). .. . . 22,26
22,26
Bowker v. Nashua Textile Co.,
Nashua Textile Inc., 103 N.H. 242
Co.. Inc., (1961)
242 (1961) . . . . . .20
20
Bricker v. New
Bricker New Hampshire Medical Society,
Hampshire Medical N.H. 469
Society, 110 N.H. (1970) . .
469 (1970) 1,26-29
7,26-29
Brzica v. Trustees Darhnouth College,
Trustees of Dartmouth N.H. 443
Colleæ, 147 N.H. 443 (2002)
Q002). . . . 26-29
26-29
Burhnanv.
Burtman Butman,94N.H.
v. Butman, 412(1947)
94 N.H. 412 (1947) ........22
22
Daigle v. Portsmouth, (1987) . .
Portsmouth, 129 N.H. 561 (1987) . . . 30
Dunlop PanAmericanWorldAirways.Inc.,6T2F.2d1044
Dunlop v. Pan (2ndClr,1982).
American World Airways, Inc., 672 F.2d 1044 (2nd Cir., 1982) ..... ..22
22
Aircraft Co.,
Great Lakes Aircraft Citv of Claremont,
Co.. Inc. v. City N.H. 270
Claremont, 135 N.H. 1992).
270 (N.H. 1992) . . . . . .20
20
Grossmanv.Muna-'¡,
Grossman 144N.H.345
v. Murray, 144 (1999),
N.H. 345 (1999). .......15 15
Guarantee Trust & Safe-Deposit
Guarantee Duiuth &
Safe-Deposit Co. v. Duluth &'W.R.
W.R. Co.,
Co., 70 F. Minn., 1895) . . .22
F. 803 (D.C. Minn., 22
Hill-Grant Living Trust v. Kearsage
Hill-Grant Liehting Precinct,
Kearsage Lighting H. 529,
Precinct, 159 N. H. (2009) . . . . 14
532 (2009)
529,532 74
Hubleyv.Goodwin,9lN.H.200(1940)
Hubleyv. Goodwin, 91 N.H. 200 (1940) .....22,2622,26
In re: Zachary, __N.H.
Inre: _, __(July
N.H. _, 2009)
(July 31, 2009) . . . . .28
28
Nat. Bank ofDerrvv.
Indian Head Nat. of Derry v. Simonsen,
Simonsen, 115 N. H. H.282 (1975)
282 (1975) . . . .26
26
Israelv.
Israel v. Car,penter, F.3d 361
Carpenter, 120 F.3d (2dCir.,7997).
361 (2d Cir., 1997) ........23 23
Kalil v. Town
Town of Dummer
Dummer Zoning BoardBoard of Adjustment, _ N. H. _(February
Adjustrnent, _ _(February 11, 2010) . . 14
11,2010).
Kessler v. Gleich, N.H. 488
Gleich, 156 N.H. (2007)
488 (2007) . . . 33
Marburyv.Madison,5U.S.
Marburyv. 137,163
Madison, 5 U.S. 137, (1803)
163 (1803) .....18 18
Merchants Mutual
Merchants Mutual Casualty Kiley, 92 N.H.
Casualtv Co. v. Kiley, (1943). . .
N.H. 323 (1943).. 21
. . . . . .27
Lebanon, 96 N.H.
Moore v. Lebanon, (1949).
N.H. 20 (1949) 22,26
Public Service Co. of N.H.
Public N.H. v. Hudson
Hudson Light
Ligùrt & Power,
Power, 938 F.2d
F.2d 338
338 (1st 1991). . . .17
Ct. 1991)
(lst Cir. 17
Shortlidgev.
Shortlidge v. Gutoski, 125N.H.510(1984)
Gutoski. 125 N.H. 510 (1984) .......19 19
South Willow Properties. LLC v. Burlington Coat Factory of New Hampshire, LLC,
_N. H. _ (December 16,2009) ............1414
-N.H.-(December76,2009)
IV
1V
Paæ
Page
ofNH v. Charpentier,
State ofNH Charpentier, 126 N.H. (1985)
N.H. 56 (1985) . . . . . . .28
28
Town of Plaistow
Town Riddle, 143 N.H.
Plaistow v. Riddle, (1996)
N.H. 307 (1996) . . . . . . .23
23
Tsiatsiosv.
Tsiatsios 144N.H.438
Tsiatsios, 144
v. Tsiatsios, (1999)
N.H. 438 (1999) ......30
30
Wamer Companyv.
Warner Compan)¡v. Sutton, 637 A.2d
Suttõn,637 Super., 1994) . .
A.2d 960 (N.J. Super., . . . .22
22
Waters v. Hedberg,
Hedberg, 126 N.H. (1985)
N.H. 546 (1985) . . . 30
OTHER
OTHER
Restatement
Restatement (Second) of Contracts $90.
Contracts §90 ........20
20
Restatement
Restatement (Second) of Contracts
Contracts §302(1)(b)..
$302(1)O). . . .. . 15,18
Restatement(Second)of
Restatement (Second) of Contracts $304
Contracts §304 ........1818
Restatement(Second)of
Restatement (Second) of Contracts $311(3).
Contracts §311(3) ......30
30
Restatement
Restatement (Second) of Judgments $20
Judgments §20 . . .23
23
Restatement(Second)ofJudgments
Restatement $27.
(Second) of Judgments §27 .......30
30
Restatement (Second) of Judgments
Restatement (Second) $28(5) ... . .
Judgments §28(5) . . .28
28
Restatement $35.
33
Restatement $39.
30
Restatement $42. .
(Second) of Judgments §42.. ........22
22
Restatement (Second) of Judgments
Restaternent (Second) $56(1).
Judgments §56(1) .. . 30-31
Restatement $59(3)..
(Second) of Judgments §59(3) .. . ...30
30
Restatement
Restatement (Second)
(Second) of Judgments
Judgments §61
$61 . . . . 33
Federal
Federal Rule Civil Proc. 60(b)
Proc. 60(b) . . . .22
22
5 Wiebusch,
Wiebusch, New
New Hampshire
Hampshire Practice,
Practice, Civil Practice
Practice and Procedure $34.09
Procedure §34.09 ..,.9
v
III. QUESTIONS
III. QUESTIONS PRESENTED
PRESENTED
1. Where
1. the undisputed
Where the facts establish
undisputed facts that the
establish that the parties to the
parties to the 1891
1891 Agreement
Agreement
intended and
intended and expected alumni such
expected alumni such as
as the Plaintifß to
the Plaintiffs to be individually benefited
be individually benefited byby and
and have
have
the contract,
rights under the contract, was the
the Superior eror in ruling that the Plaintiffs
Superior Court in error Plaintiffs do not have
have
standing as
standing third-party beneficiaries
as third-party to sue
beneficiaries to their own
sue in their own names
names toto enforce
enforce this
this contract?
contract? [Issue
flssue
Plaintiffs' Objection
raised in Plaintiffs'
raised objection to College's Motion for Summary
College's Motion Summary Judgment, App.A,
Judgment, App. A, p. 19-26]
p.19-261
2. The
2. The Superior Court assumed
Superior Court assumed that
that the Plaintifß do have
the Plaintiffs have standing
standing as
as members
members of of
the Association
the Association toto bring
bring suit in their
suit in their own
own names
names to to enforce
enforce thethe 1891 Agreønent. Do
1891 Agreement. Do the
the
undisputed facts
undisputed facts indeed confirm that the
indeed confirm the Superior
Superior Court's
Court's assumption
assumption was correct
correct and, therefore,
therefore,
is such ruling compelled
such a ruling compelled in this case?
case? [Issue
flssue raised
raised in Plaintiffs'
Plaintiffs' Objection
Objection to College's
College's Motion
Motion
for Summary Judgment,
Judgment, App. A, p. 17-l9l
p. 17-19]
)
3. Even
3. Even ifif the
the 1891
1891 Agreement
Agreement is is not
not deemed
deemed to be aa contract
to be contract between
between the
Association and the
Association the College, the Plaintiffs,
College, do the Plaintiffs, as persons
persons who the undisputed
the undisputed facts establish
establish that
that
the College
the College should
should reasonably
reasonably have
have expected
expected to rely upon
upon its promises regarding púty and who
regarding parity who
have taken actions
have in fact taken actions in reliance
reliance upon
upon the
the College's
College's said promises,
promises, have
have standing under
under the
the
doctrine of promissory
doctrine promissory estoppel to sue
estoppel to in their
sue in their own
own names to enforce
names to enforce the
the College's
College's promises?
promises?
[Issue
flssue raised Plaintiffs' Objection
raised in Plaintiffs' Objection to College's Motion for Summary Judgment,
College's Motion Judgment, App.
App. A, p.p.26-
26-
27]
271
4. Even
4. Even ifif the
the filing ofof a "with
"with prejudice"
prejudice" voluntary
voluntary dismissal
dismissal of the
the Prior
Prior Lawsuit
Lawsuit
might, in
might, in ordinary
ordinary circumstances,
circumstances, have provided aa basis
have provided for the
basis for the College's
College's assertion
assertion ofof the
the
defense
defense of judicata, should
of res judicata, the College
should the College be be denied
denied the
the opportunity
opportunity to to avail
avail itself of such
itself of such aa
defense in
defense in this
this case
case where
where the
the undisputed facts establish
undisputed facts (a) that
establish (a) that the
the Association's
Executive
Committee had not been
Committee authoizedby
been authorized by the
the alumni to take
take any
any action
action which
which would
would extinguish
extinguish the
the
Association's or
Association's or the
the alumni's
alumni's legal
legal rights
rights to parit¡ (b)
to parity, (b) that
that the
the Association
Association andand the
the alumni
alumni
received absolutely
received nothing in
absolutely nothing in return for the
return for the Executive
Committee's dismissal
dismissal ofof the
the Prior
Prior
Lawsuit "with
Lawsuit prejudice," and
"w"ith prejudice," and (c)(c) that the College
that the itself colluded
College itself with the
colluded with the Association's
Association's
Executive Committee
Executive Committee and and orchestrated
orchestrated the the preparation
preparation and filing of
and filing the "with
of the "with prejudice"
prejudice"
dismissal in such
dismissal manner that the
such a manner would not
the alumni would not find out about it until it was too late?
late? [Issue
[Issue
raised Plaintifß' Objection
raised in Plaintiffs' objection to College's Motion for Summary
College's Motion Summary Judgment,
Judgment, App. A, A, p. 34-39]
p.34-391
'Was
) 5. Was
5. the Superior
the Superior Court (and is
Cou¡t (and is this Court) barred
this Court) by the
baned by the so-called
so-called Bricker
Bricker
doctrine inquiring into the irregularities
doctrine from inquiring irregularities surrounding
surrounding the preparation
preparation and filing of the
the "with
"with
prejudice" dismissal
prejudice" dismissal ofof the Prior Lawsuit
the Prior Lawsuit [see Question ## 4,
lsee Question 4, above]
abovel where
where thethe actions of the
actions of the
Association's Executive Committee
Association's Executive Committee in in withdrawing
withdrawing the Prior Lawsuit
the Prior with prejudice
Lawsuit with did not
prejudice did not
involve some
involve some mere policy dispute
mere policy dispute over the Association's
over the Association's internal
internal affairs,
affairs, but
but instead
instead arguably
arguably
effected relinquishment of important
effected a relinquishment important legal rights
rights of the
the Association
Association and its members
members vis-a-vis
vis-à-vis
part¡ i.e., the
an outside third party, the College,
College, and where
where the party attempting
the party attempting to claim the benefit
benefit of the
the
Bricker doctrine
Bricker is not
doctrine is not the Association, but is instead the College? flssue raised in Plaintiffs'
the Association, but is instead the College? [Issue raised in Plaintiffs'
Objection Motion for Summary Judgment,
College's Motion App.A,
Judgment, App. A, p.39, n. 48]
'Where
6. Where
6. the undisputed
the facts establish
the Plaintiffs
Plaintiffs had no personal
had no personal
involvement in the
involvement Prior Lawsuit,
the Prior Lawsuit, (b) that,
that, as
as of the time of the
the time the filing of the Plaintiffs' lawsuit,
the Plaintiffs'
1
the Plaintiffs' third-party
the Plaintiffs' third-party beneficiary rights could
beneficiary rights could not
not be
be extinguished
extinguished because their rights
because their rights had
vested,
vested, (c) that
that there had been
been no trial on the the merits judicial findings
merits and no judicial findings of fact
fact in the Prior
the Prior
Lawsuit, and (d)
Lawsuit, (d) in any case, that neither
neither the Plaintifß personally
the Plaintiffs personally nor the alumni in general
the alumni general had
taken
taken any
any action
action or authorized the
the Executive
Executive Committee
Committee of the Association
Association to take
take any
any action
action to
extinguish
extinguish the Association's
Association's or the
the alumni's parit¡ was the
alumni's legal rights to parity, the Superior
Superior Court in error
in ruling in this
this case that Plaintiffs' third-party
that the Plaintiffs' third-party beneficiary
beneficiary claims
claims are barred
baned by judicata.
by res judicata.
[Issue
flssue raised Plaintiffs' Objection
raised in Plaintiffs' Objection to College's Motion for Summary Judgment,
College's Motion App.A,
Judgment, App. p.29-
A, p. 29-
)
30]
301
7. Where
7. Where the the undisputed facts establish
establish (a) the Plaintiffs
that the Plaintiffs had no personal
had no personal
involvement in the
involvement the Prior
Prior Lawsuit,
Lawsuit, (b) that,
that, as
as of the
the time
time of the
the filing of the Plaintiffs' lawsuit,
the Plaintiffs'
the Plaintiffs' rights
the Plaintiffs' bring claims
rights to bring promissory estoppel
claims in promissory estoppel could
could not
not be
be extinguished
extinguished because
because
their rights had vested,
their rights vested, and (c)(c) in any
any case,
case, that
that neither Plaintiffs personally
neither the Plaintiffs personally nor thethe alumni
in general
in had taken
general had taken any
any action
action oror authorized
authorized the
the Executive
Executive Committee
Committee of the the Association
Association to
take any action
take any to extinguish
action to extinguish the the Association's
Association's or the alumni's
or the legal rights
alumni's legal rights to parity, was
to parity, was the
Superior
Superior Court in error in ruling
Court in ruling in this
this case
case that
that the Plaintiffs' promissory
the Plaintiffs' promissory estoppel claims are
estoppel claims
barred
barred by judicata. [Issue
by res judicata. flssue raised Plaintiffs' Objection
raised in Plaintiffs' to College's
Objection to Motion for Summary
College's Motion Summary
Judgment, App.A,
Judgment, App. p.30, n. 38]
A, p.30,
'Where
8. Where
8. the undisputed
the facts establish
the Plaintiffs
Plaintiffs had no personal
had no personal
involvement in the Prior
involvement Prior Lawsuit (b) that
Lawsuit and (b) that neither Plaintiffs personally
neìther the Plaintiffs personally nor the
the alumni in
general had taken
general had taken any
any action
action or authorized
authorized the
the Executive
Executive Committee
Committee of thethe Association
Association to take
any action
any to extinguish
action to extinguish thethe Association's
Association's or or the
the alumni's
alumni's legal
legal rights
rights to parit¡ ifif both
to parity, both the
Association
Association and the Plaintiffs,
Plaintiffs, as individual
individual members
members thereof,
thereof, have
have standing to sue to enforce the
1891 Agreement,
Agreement, do such undisputed
undisputed facts compel aä ruling in this
facts compel Plaintiffs' claims
this case that the Plaintiffs' claims
as
as members
mernbers of of the
the Association
Association are not barred
are not barred byby res judicata. [Issue
res judicata. flssue raised
raised in
in Plaintiffs'
Plaintiffs'
Objection
College's Motion for Summary
Summary Judgment, App.A,
Judgment, App. p.28-291
A, p. 28-29]
IV. STATEMENT
IV. TIIE UNDISPUTED
STATEMENT OF THE CASE AND THE FACTS
T]NDISPUTED FACTS
l
This case
This case (the "Curent Lawsuit")
(the "Current is brought
Lawsuit") is by seven
brought by individual alumni
seven individual alumnil Dartmouth
of Dartmouth
College nominally against

College nominally against the College. The
the College. Plaintifß bring
The Plaintiffs bring claims in their
claims in their capacities
capacities as
members of Dartmouth's
members of Dartmouth's Association of Alumni
Association of (the "Association"),
Alumni (the "Association"), claims as third-party
claims as third-party
beneficiaries
beneficiaries of a contract
contract between
between the
the Association
Association and the
the College,
College, and claims
claims as
as promisees of
promisees of
promises
promises made by the
made by the College
College upon which the
upon which the Plaintiffs relied. In
Plaintiffs relied. In each
each case, the substantive
case, the substantive
right that
right that the Plaintiffs seek
the Plaintiffs seek to vindicate is their
vindicate is right to have
their right have the
the College
College seat on its
seat on goveming
its governing
r Technically,
1 "alumni" is the plural of the Latin masculine
Technically, the word "alumni" "alumnus." The feminine counterparts
masculine noun "alumnus." counterParts
"alumnae" and
would be "alumnae" "alumna." Since
and "alumna." Since Dartmouth
Dartnnouth is now a co-educational
co-educational institution,
institution, its graduates consist of
alumni and
both alumni and alumnae.
alumnae. However, simplicity, we use
llowever, both because it is conventional to do so and for the sake of simplicity,
te¡m "alumni"
the term" alumni" to refer
¡efer to both.
2
board an equal number
board number of trustees
trustees selected
selected by the
the alumni to that
that number
number of trustees
trustees selected
selected for
the position
the position by
by the
the College itself. This
College itself. This right is customarily
right is customarily referred to at
referred to at Dartmouth
Dartmouth as
as the
alumni's right to "parity."

alumni's "partty."
A.
A. The Prior Lawsuit
The Association
The Association had previously sought
had previously to vindicate
sought to the alumni's
vindicate the alumni's right to parity
right to parity by
by
bringing suit
bringing suit against the College
against the in 2007.
College in 2007. Association of Alumni
Association of of Dartmouth
Alumni of Dartmouth College
College v.
Trustees of Dartmouth
Trustees Dartmouth College, Grafton Superior
College, Grafton Superior Court
Court #07-E-289
#07-E-289 (the
(the "Prior Lawsuit"). The
"Prior Lawsuit").
College attempted
College to obtain
attønpted to obtain an early disposition
an early disposition of the
the case filing a motion
by filing
case by motion to
to dismiss.
dismiss. On
February 1, 2008, the

February Court (Vaughan,
the Court (Vaughan, Presiding
Presiding Justice),
Justice), denied the
the College's
College's motion
motion (App. A,
pp. 49-63i.
pp. its order,
49-63)2. In its ordet, the Court summarized
the Court summarized the
the nineteenth
nineteenth century
century origin
origin of the
the alumni's
alumni's
right to parity,
right to parity, the of its
history of
the history its implementation
implementation over
over the next 100+
the next 100+ years
years and
and the
the College's
College's
recent effort to abrogate it as follows

recent follows (App.
(App. A, pp. 50-51):
50-51):
Dartmouth College
Dartmouth College was
was founded
founded in n 1769.
1769. Under
Under the
the Dartmouth
Dartmouth College
College Charter, the
College is governed by
College by a Board
Board of Trustees ("Board"). Between
Trustees ("Board"). Between 1769
1769 and
and 1891, the
Trustees of
Trustees of Dartmouth College designated their owTt successors, who exercised
Dartmouth College designated their own successors, who exercised
authority and responsibility
authority responsibility over
over the
the College
College governance
governance without particþation from
without participation
College alumni. Starting
College alumni. Starting inin the
the 1860s, the Association
1860s, the Association and its members
and its members began
began
pressing the College
pressing the for alumni
College for particþation on
alumni participation on the
the Board.
Board. (Petition fl8). The
(Petition ~8).
dialogue between
dialogue the Association
between the Association and and the
the College
College continued
continued throughout
throughout the
the 1860s,
1870s and 1880s,
1870s and (Pet. ~~9,10,
1880s, (Pet. tffl9,10, and
and 11).
11). In
In June
June of
of 1891,
1891, the
the College
College and
and the
Association reached
Association reached anan agreement
agreement thatthat became
became knownknown as the "1891
as the "1891 Agreement
Agreønent
(hereinafter referred
(hereinafter referred to as
as the
the "Agreement").
"Agreement").
written memorialization
There is no written memorialization signed by bothboth parties
parties setting
setting forth the
the details of
details of
Agreement. However,
the Agreement. However, the
the Agreement
Agreement between
between the
the College
College and the
the Association is
Association
independently within a signed document
reflected within
independently reflected document of each
each organization.
orgarrization. The
The College,
by its Board
by Board of Trustees,
Trustees, adopted resolutions on June
adopted resolutions June 23, i891, that
23,1891, that it said embodied
the Agreement. (Id.) The
Agreement. (Id.) Association approved the
The Association the Agreement
Agreement at its annual meeting
meeting
on June
on 24, 1891
June 24, and incorporated
7897 and partial description
incorporated aa partial description of the Agreement into
of the Agreement into its
meeting
meeting minutes.
minutes. (Pet. ~15).
!f15).
After the
After Association voted
the Association to accept
voted to accept the
the Agreement, it amended
Agreement, it amended itsits constitution
constitution to
the election
provide for the election of one-half
one-half of the
the College's îon-ex fficio trustees. (Pet. ~19).
College's non-ex officio trustees. fl19).
2
2 The references herein to "App,
references herein N' are
"App. AN Plaintiffs' Objection
the Plaintiffs'
are to the Objection to the
the College'S
College's Motion for Summary Judgment
Judgment
and the evidence submitted by the Plaintiffs in support
support thereof, filed herewith as
as Appendix A to this Brief.
Brief.
3
)
It circulated
circulated an appeal
appeal to its members
membe¡s for donations
donations to the
the College (Pet.fp2),lifted
College (Pet. ~22), lifted a
public ultimatum
public ultimatum opposing alumni contributions
opposing alumni which had
contributions which had been
been in place while the
place while
Association sought
Association sought representation
representation on the Board,
on the Board, and
and forbore
forbore from filing aa lawsuit
from filing
against Board. (Pet.
against the Board. (P et. ~~24,
llp4, 33,
33, 42).
42).
Following the Agreement,

Following Agreement, the the Board
Board would
would be
be composed
composed of two "ex officio
fficio trustees,"
trustees,"
namel¡ the
namely, the President
President of of the
the College
College and the Governor of the State of
and the Governor of the State of New
New
Hampshire, and,
Hampshire, pursuant to
and, pursuant to the
the agreement,
agreement, the Alumni would
the Alumni would seat of the
half of
seat one half
non-ex-fficio trustees
non-ex-officio trustees seats
seats on the Board ("alumni trustees")
Board ("alumni trustees") and Dartmouth
Dartmouth College
would hold
would hold the
the other half of the
other half the seats
seats on the
the Board
Board ("charter
("charter trustees").
trustees"). Thereafter,
the board
the board of trustees would include
trustees would include an
an equal
equal number
number ofof alumni
alumni trustees
trustees and
and charter
trustees
trustees (Petition ~16).
!f 1 6).
The parity between

The parity alumni trustees
between alumni trustees and
and charter
charter trustees
trustees has
has continued
continued up to the
up to
present. The
present. The Board
Board has
has been
been twice
twice expanded,
expanded, once in 1961
once in 1961 and again in 2003.
2003. (Pet.
~23).
fl23). The
The College
College and the Association
Association maintained
maintained the parity
parity between
befween alumni trustees'
trustees'
and charter trustees'
trustees' representation
representation on both
both occasions.
occasions. Id.
On September
On Septemb er 8,
8, 2007,
2007 , the
the Board
Board of Trustees
Trustees adopted
adopted a resolution
resolution that
that increased
increased the
total number
total number ofof trustees to twenty-six.
trustees to twenty-six. The
The resolution
resolution maintained
maintained the
the number of
number of
alumni trustees
trustees at eight, while expanding the
eight, while the charter trustees'
trustees' seats to sixteen.
In light
In of these
light of facts and
these facts the allegations
and the in the
allegations in the Association's
Association's complaint,
complaint, the
the Court
concluded that
concluded that the Association had
the Association had sufficiently pled legally
sufficiently pled legally cognizable
cognizable causes
causes of action
action against
against
the College
the for breach
College for of an
breach of an express
express contract, of an
breach of
contract, breach an implied-in-fact
implied-in-fact contract
contract and
promissory estoppel.
promissory estoppel. The
The Court, therefore,
therefore, denied the
the College's
College's motion
motion to dismiss.
Undaunted, the College

Undaunted, the College embarked upon aa course
ernbarked upon of action
course of action designed to accomplish
designed to accomplìsh
outside of court what

outside what it had to accomplish
failed to
had failed in court,
accomplish in court, namely
namely to
to do
do an
an end run
run around the
lawsuit and thus

lawsuit to deal
having to
thus avoid having with the
deal with the merits
merits of the
the alumni's
alumni's claim
claim of a right to parity.
The vehicle
The vehicle for this was
was the
the annual
annual election
election of new
new members
members of the
the Executive
Executive Committee
Committee of the
Association. Throughout
Association. Throughout the
the Spring two slates
Spring of 2008, two slates of candidates,
candidates, one known
known as
as the
the "Unity
"Unity
Slate" and
Slate" the other
and the known as
other known the "Parity
as the "Parity Slate,"
Slate," waged
waged aa vigorous
vigorous contest
contest for the
the Executive
Executive
Committee positions. The

Committee positions. Unity Slate
The Unity ran on
Slate ran platfo.- favoring
on a platform furro¡ng preservation
preservation of the
the alumni's
alumni's
4
right to
right to parity
parity through
through negotiation,
negotiation, rather
rather than litigation.3 Accordingly,
than litigation.' Accordingly, while
while the
the Parity
Parity Slate
supported
supported pressing with the
on with
pressing on litigation, the
the litigation, Unity Slate pledged
the Unity pledged that, if elected,
that, if elected, they
they would
would
dismiss the Prior Lawsuit."

Lawsuit.a
ballots cast
The ballots the election
cast in the election were
were tallied up and the
tallied up the results
results announced
announced at the
the general
general
meeting Alumni held

Association of Alumni
meeting of the Association held on June 2008. (App.
June 10, 2008. pp. 70-72).
(App. A, pp. 70-72). The Unity
The Unity
won. On
Slate won.
Slate On that very same
that very same evening,
evening, the new Executive
the new Executive Committee
Committee met by telephone
met by telephone and
adopted
adopted the following resolutions (App. B, p.
resolutions (App. p. 128)5:
128)5:
RESOLVED, that
RESOLVED, that effective
effective immediately
immediately any aly and all authority
and all previously
authority previously
delegated
delegated toto Frank Gado to act in any mânner for the Association of Alum¡i of
Frank Gado to act in any manner for the Association of Alumni of
Dartmouth College
Dartmouth ("Association of
College ("Association of Alumni")
Alumni") as as Liaison
Liaison forfor Legal
Legal Affairs
Affairs
("Liaison") or
("Liaison") in any
or in any other
other capacity in connection
capacity in with (a)
connection with (a) the
the lawsuit by the
filed by
lawsuit filed
association of Alumni
association of Alumni in in New
New Hampshire
Hampshire Superior Court (Docket
Superior Court No. 07-E-0289)
(Docket No. 07-E-0289)
against the Trustees
against the of Dartmouth
Trustees of Dartmouth College ("the Lawsuit");
College ("the Lawsuit"); or (b) the
or (b) law firm
the law of
finn of
Williams &
Williams & Connolly and/or Hatem & Donovan, including but not limited to
Connolly and/or Hatem & Donovan, including but not limited to all
authority delegated
authority by the'
delegated by the resolutions of the
resolutions of the Executive
Executive Committee
Committee of of August
August 23,
2007 and
2007 and October 2,2007,
October 2, 2007, is hereby revoked
revoked and rescinded.
rescinded.
RESOLVED, that
RESOLVED, that effective
effective immediately
immediately the the Executive Committee hereby
Executive Committee hereby
designates the President
designates the President ofof the
the Association
Association of of Alumni
Alumni of Darmouth
of Dartmouth College
College
("Association of Alumni"),
("Association Alumni"), John '69, as
Mathias '69,
John Mathias its Liaison
as its for Legal
Liaison for Affairs, and
Legal Affairs,
delegates him full power
delegates him por,ver and authority
authority (1) to oversee
oversee and direct the work of Williams
& Connolly
& Connolly and Hatem &
and Hatem & Donovan;
Donovan; (2)(2) to
to take
take any
any and all actions
and all actions necessary
necessary to
)
obtain
obtain the prompt dismissal
the prompt dismissal of the
the lawsuit
lawsuit filed by the Association Alumni in New
Association of Alumni New
Ha:rrpshire Superior
Hampshire Superior Court (Docket No.
Court (Docket No. 07-E-0289)
07-E-0289) against the Trustees
against the of
Trustees of
Dartrnouth College
Dartmouth ("the Lawsuit
College ("the "); and
Lawsuit "); (3) at
and (3) his discretion,
at his to engage
discretion, to new or
engage new
additional counsel to represent
additional represent the Association Alumni in the Lawsuit.
Association of Alumni
3
3 The campaign
campaign materials Unity Slate
materials of the Unity Slate (also
(also known
known as the 'Dartmouth Undying"
the "Dartmouth Undying" slate)
slate) were
were clearly intended
intended to
convey
convey the
the message that its members
message that members supported parity. (App.
supported parity. (App. A, p. p. 115)
115) For
For example,
example, the
the following
following statement waswas
posted on their
posted website: "Our
their website: "Our slate
slate is fully committed
is fully committed toto working
working constructively with the
constructively with the Trustees to address
Trustees to address the
the
issue alumni governance
issue of alumni governance and and 'parity' in true
'parity' in true dialogue,
dialogue, and
and not i¡ the
not in the New
New Hampshire
Hampshire statestate courts
courts or legislature.
legislature.
The Trustees,
The Trustees, all of whom
whom are fellow Dartmouth
are fellow Dartmouth alumni
alumni except
except the President
President and
and the
the Governor
Governo¡ of New New Hampshire,
Hampshire,
welcome such
welcome dialogue. Dartmouth
such dialogue. Dartmouth needs
needs it, now
now more
more than ever." (App.
than ever." (App. A, p. 120)
A, p. 120) Indeed,
Indeed, had Unity Slate
had the Unity
even hhted that
even hinted that they
they would
would give up the the alumni's parit¡ the slate would
alumni's rights to parity, would surely
surely have beenbeen defeated because
because
this would
this would have
have flaunted
flaunted clear alumni sentiment
clear alumni sentiment in in parity's favor. This
parity's favor. This sentiment
sentiment had
had been
been documented
documented several
months poll of the
months earlier in a poll the alumni
alumni where
where they hadhad voted
voted almost
almost ten to one
one in favor
favor of retaining parity. poll
parity. (The poll
had been
had been conducted
conducted by by the
the former
forrner Executive
Executive Committee
Committee of the the Association
Association before
before it had
had filed
filed the Prior Lawsuit.
the Prior Lawsuit.
App.A,
App. pp. 116-119)
A, pp. 116-119)
4
4 Unity Slate's
The Unity Slate's campaign
campaign was
was essentially
essentially orchestrated
orchestrated and financed
financed by the
the College.
College. (App. A, pp.
(App. A, 64-69).
pp.64-69).
5
5The references
The to "App,
herein to
references herein "App. B"B" are to the
are to the College's
College's Motion for Summary
Motion for Summary Judgment
Judgment and
a¡rd the
the evidence
evidence submitted
submitted by
by the
the
College in support
College support thereof, filed herewith
thereof, filed herewith as Appendix
Appendix B to this Brief.
Brief.
5
Note
Note that
that neither
neither resolution
resolution contains
contains any
any express
express direction or even
direction or even the hint of a suggestion
the hint that
suggestion that
the Prior
Prior Lawsuit might dismisse dwith
might be dismissed prejudice.66
with prejudice.
In any case,
case, that
that is exactly
exactly what happened.
happened. Moreover,
Moreover, as reflected
reflected in internal documents
documents
of the
the College
College obtained in discovery by the
discovery by the Plaintiffs
Plaintiffs in the
the Current Lawsuit, the
Current Lawsuit, played
the College played
the
the leading role in this
this event.
event. To begin initial draft of the two above-quoted
begin with, the initial resolutions
above-quoted resolutions
which were passed

whichl¡¡ere by the
passed by the Association's
Association's newly-elected Executive Committee
newly-elected Executive on June
Committee on June 10, 2008
)
was
was prepared by General Counsel for the
prepared by the College, Attorney Robert
College, Attorney Robert Donin. p. 75, bullet
Donin. (App. A, p. bullet
#l)'
#1)7 Attorney
Attorney Donin
Donin was
was also the one
also the one who
who recommended
recommended that
that the
the Association hire Attorney
Association hire Attorney
Russell Hilliard as its new

Russell Hilliard new counsel
counsel and,
and, at the request
atthe request of Mr. Mathias,
Mathias, the Executive Committee's
newly-designated
newly-designated Liaison
Liaison for Legal Affairs, he
Legal Affairs, he was
was the
the ·one who made
one who made the initial contact
the initial with
contact with
Hilliard. (App.
Attorney Hilliard.
Attorney A,p.76,
(App. A, bullet #4;
p. 76, bullet A, pp.
App. A,
#4; App. 78-81) And
pp. 78-81) finally -- although
And finally not
although not
disclosed to Attorney
Attomey Hilliard
Hilliard at the
the time''
time8 - it was Attorney
Attorney Donin
Donin who the College
who saw to it that the
heþfully paid
helpfully paid all of Attorney Hilliard's legal fees.
Attorney Hilliard's p. 86)
fees. (App. A, p.
According to his
According to bill for professional
his bill professional services, Hilliard was
Attorney Hilliard
services, Attorney was hired on June
hired on June 12,
2008. (App.
2008. A, p.
(App. A, 78) On
p. 78) On that
that day,
day, he had aa telephone
he had telephone conference
conference with Mr. Mathias
with Mr. Mathias and
Attorney
Attomey Donin,
Donin, at which
which time
time he
he presumably
presumably received
received his
his marching
marching orders. (Ibid) Four
orders. (Ibid) Four days
later,
later, Attorney Hilliard filed
Attorney Hilliard filed his
his appearance
appearance for the
the Association the Grafton
Association in the County Superior
Grafton County Superior
Court
Court and on the
the very
very next
next day,
day, June
June 17, he
he emailed
emailed counsel
counsel for the
the College,
College, Attorneys
Attorneys Donin,
6 for the
the alumni
alumni to
6 Equally
Equally telling
telling is
is the
the fact
fact that
that the
ihe minutes
minutes of the
the meeting, which were
meeting, which posted on
were posted on the
the Association's website for
Association's website
read,
read, reflect
reflect no
no discussion
discussion ofof such
such a possibility. (App. B, p.
possibility. CAppoB, p. 128) Indeed,
Indeed, according to the
according to minutes, the
the minutes, meeting lasted
the meeting only 8
lasted only
minutes. (Ibdl
minutes. (Ibid.)
7
7 According
According to the
the College,
College, this
this draft
d¡aft was
was prepared
prepared by Attorney Donin at the
Attorney Donin the request David Spalding,
request of David Spalding, the
the Secretary-Treasurer
Secretary-Treas¡¡er
of the
of the Association's
Association's Executive (App. A,
Committee. (App.
Exeõutive Committee. p. 75,
A, p. 75, bullet #1) Mr.
bullet #1) Mr. Spalding, however, worked
Spalding, however, both sides
worked both of the
sides of the
Association/College street. He
Association/College street. He was
was indeed
indeed aa member
mèmber ofof the Association's Executive
the Association's Executive Committee, having been
Committee, having elected as
been elected as a
member
membe¡ of the
the Unity
Unity Slate.
Slate. On the
the other
other hand, Mr. Spalding
hand, Mr. Spalding was
was also
also Dartmouth's
Dartmouth's Director Alumni Affairs
Director of Alumni Affairs and an employee
and an employee
ofthe
of the College.
College.
) 8 In
8 ,".ponr" to an Interrogatory
Io response Interrogatory from the
the Plaintiffs
Plaintiffs in the
the Current
Current Lawsuit
Lawsuit concerning
conceming who paid his
who paid his legal Hilliard
Attorney HiIIiard
legal fees, Attorney
answered,
answered, "I have
have learned
leamed in preparing
preparing these
these answers
answers that bills were
that my bills paid by Dartmouth
were paid College." (App.
Dartmouth College." p. 84, answer
(App. A, p. answer to
Interrogatory No. 13)
InterrogatoryNo.
6
Richard Pepperman
Richard York counsel for the College)
Peppennan (New York College) and Bruce
Bruce Felmly (outside local counsel
for the
for the College),
College), as follows: "Can
as follows: we speak
"Can we speak some time today
some time today about
about discontinuance of this
discontinuance of
matter?" (App. A, p.
matter?" p. 87)
87) After
After then
then speaking by telephone
speaking by with Attorney
telephone with Attomey Pepperman
Pepperman (App. A,
p.78;
p. 78; App. p.76,
App. A, p. bullet #6),
76, bullet #6), Attorney Hilliard prepared
Attomey Hilliard prepared and circulated
circulated a draft
draft of a proposed
proposed
p. 87).
marking (App. A, p.
docket marking 87). The
The document was
was designed
designed to be
be filed by the Association
Association and
stated simply: "The

stated simply: "The plaintiff in the
plaintiff in the above matter hereby
above matter takes aa voluntary
hereby takes voluntary non-suit
non-suit with
with
prejudice." (App.
prejudice." (App. A, p. 90) In his
p. 90) his email which
which accompanied
accompanied his
his draft docket marking, Attorney
Attomey
Hilliard inquired
Hilliard of the
inquired of the addressees, Attorney Pepperman
addressees, Attorney Pepperman and
and Attorney
Attorney Bruce Febnly: "Is
Bruce Felmly: "Is it
really this
really simple?" (App.
this simple?" (App. A, p. 87)
A, p. 87) Attorney
Attorney Felmly promptly responded
Felmly promptly responded as follows: "It is
as follows:
commonly done as simply as

as simply you have
as you (App. A, p.
have done it." (App. 91) Apparently
p. 91) Apparently satisfied, Attorney
Attomey
Hilliard replied:
Hilliard replied: "[A]re
"[A]re we
we ready to file this?"
ready to (App. A, p.
this?" (App. p. 91)
91) At this
this point,
point, however,
however, Attorney
Attorney
Pepperman -- obviously
Pepperman obviously having
having some
some second
second thoughts
thoughts about
about the
the matter
matter -- put
put the
the brakes
brakes on; his
elnail back
email to Attorney
back to Hilliard reads
Attomey Hilliard reads as follows: "If possible,
as follows: I'd like to
possible, I'd to discuss
discuss an issue
issue with
with
Felrnly when
Bruce Felmly tomorrow." (App. A, p.
when he frees up tomorrow." p. 91)
Two days later, on June

days later, June 19, Attorneys
Attorneys Pepperman
Pepperman and Felmly
Felmly left a message
message for Attorney
Attomey
Hilliard to the
Hilliard the effect that
that they
they wished hold off the
wished to hold the filing of the
the docket
docket marking because
because "[we]
may want
may to re-work
want to re-work the
the language slightly." (App.
language slightly." A, p.
(App. A, 92) Later
p. 92) Later that
that day,
day, Attorney
Attorney Felmly
Felmly
sent revealing email

sent aa revealing to Attorneys
email to Attomeys Pepperman
Peppennan and Hilliard (with
and Hilliard (with aa copy
copy to
to Attorney
Attorney Donin).
The email
The email describes Attorney Felmly's
describes Attorney Feknly's legal research on the
research on judicata effects
the res judicata effects of the
the various
ways that had traditionally

ways traditionally been
been used
used in New Hampshire
Hampshire to withdraw
withdraw a civil action without
without aa trial
(App. A, p.
merits. (App.
on the merits. 93) The
p. 93) The obvious
obvious focus
focus of Attorney Felmly's research
Attomey Felmly's research was on how
how the
parties should
parties ,h" dismissal
should craft the dismissal so
so as
as to have
have the
the best
best chance bulleþroof the
chance to bulletproof the lawsuit
lawsuit from
".åft
potential subsequent
potential efforts to revive
subsequent efforts it. In summary, Attorney
revive it. Attorney Felmly
Felmly suggested that rather than
7
the Association
the Association unilaterally filing aa docket
unilaterally filing marking and
docket marking and rather
rather than
than the
the Association
Association taking
taking a
"non-suit," the parties

"non-suit," the parties should jointly file
should jointly file aa stipulation
stþlation providing
providing that
that the
the docket
docket be
be marked
marked
'loluntary dismissal with

''voluntary prejudice." (App. A, p. 93)
with prejudice."
juncture, the
At this juncture, the lawyers
lawyers agreed to schedule
agreed to schedule a teleconference
teleconference among themselves
themselves and
Mathias for the

Mr. Mathias following day.
the following day. The teleconference
teleconference among the
the lawyers
lawyers and Mr. Mathias
Mathias was
conducted the late

conducted in the morning of June
late morning June 20, 2008. (App.
20, 2008. p. 78;
(App. A, p. 78 App. p. 76, bullet
App. A, p. #10) In
bullet #10)
the course
the course of that they agreed upon
that call, they upon a form of stipulation
stipulation which by counsel
which was to be signed by
)
both the
for both Association and
the Association the College
and the and which would
College andwhich provide that
would provide that the
the docket
docket be
be marked
marked
"Voluntarily dismissed
"Voluntarily prejudice." Attorney
with prejudice."
dismissed with Attorney Felmly
Felmly then
then undertook to draft
undertook to draft and circulate
circulate
the stipulation
the for signature.
stipulation for signature. (App.
(App. A, p. 95) Finally,
p. 95) Finally, on
on June 23, after
June 23, both sides
after counsel for both
had signed
had it, Attorney
signed it, Felrnly mailed
Attorney Felmly the stipulation
mailed the to the
stipulation to the Clerk of the
Clerk of the Grafton
Grafton County.-
County -
Superior Court. (App.A,

Court. (App. A, p. 99)
point, the
this point,
At this the College's PR machine
College's PR machine shifted into high
shifted into gear. On
high gear. On the
the same
same day
day that
that
Attorney Felmly mailed

Attorney Felmly the stipulation
mailed the to the
stipulation to the court,
court, Diana
Diana Lawrence, the Director
Lawrence, the of
Director of
Communications in the
Communications Alumni Relations,
the Office of Alumni Relations, sent
sent an email to Mr. Mathias
Mathias alerting him to
the fact
the fact that
that when the Court
when the Court received
received the stþlation, there
the stipulation, probably would
there probably would be
be media
media inquiries
inquiries
and that he, Mr. Mathias, would be

Mathias, would be "the most
most logical
logical and ideal
ideal spokesperson"
spokesperson" to respond.
respond. (App.
p. 101)
A, p. 101) In the meantime,
meantime, however,
however, she reported that,
that, "The
"The game
game plan
plan does seem to still be not
not
to issue anything until

issue anything judge acts
until the judge ... ."
acts .... p. 101)
" (App. A, p.
This "game
This plan" email
"game plan" email from Ms. Lawrence
from Ms. provoked aa telling
Lawrence provoked telling exchange of
exchange of
communications between
communications Mr. Mathias
between Mr. Mathias and herself (with blind
herself (with blind copies to David
copies to David Spalding)
Spalding) as
as to
how the
how parties should
the parties should deal with the
deal with public relations
the public relations backlash
backlash that
that the
the filing of the
the stipulation
stipulation
was likely
was to create.
likely to create. Most
Most significant is Ms.
significant is Ms. Lawrence's
Lawrence's observation
observation that,
that, "With
"With respect
respect to
8
reporters' inquiries, I think:
reporters' inquiries, think the most
most controversial
controversial question might
might be why the AoA, which
which is only
only
elected for aa year,

elected for year, would
would file to
to withdraw
withdraw aa suit with prejudice
suit with prejudice and prohibit
prohibit future
future executive
executive
committees from acting

committees from differently." CAppoA,
acting differently." p. 102)
(App. A, p. 102) For
For his
his part, Mr. Mathias,
part, Mr. Mathias, counseled
counseled
patience and, if possible,

patience possible, silence. particular,he
silence. In particular, he recommended
recommended that
that everyone stick to the
the game
game
plan and keep

plan keep a low profile judge acts on the
profile "until the judge stþulation of dismissal."
the stipulation dismissal." CAppo p. 105)
(App. A, p.
The stipulation
The stþulation was
was stamped in at
stamped in at the
the Grafton
Grafton County
County Superior
Superior Court at 1:33
Court at 1:33 p.m.,
p.m.,
Tuesday, June
Tuesday, 24,2008.
Ivne 24, 2008. CAppo p. 131)
(App. B, p. After waiting
131) After waiting one day, Attorney
Attomey Hilliard -- presumably
presumably
urging of Mr. Mathias

at the urging Mathias -- telephoned
telephoned the
the Court on June
June 26 in judicial sign-
tn an effort to get aa judicial
off on the stipulation. CAppoA,

the stipulation. (App. A, p. 78) He
p. 78) He did not
not have
have long to wait because
long to because on the
the very
very next
next
27, at
June 27,
day, June at 10:25
10:25 a.m., Judge Vaughan
Vaughan directed
directed the
the entry of the
the following telephonic
telephonic order:
order:
"Stipulation approved;
"Stipulation approved; docket shall be
docket shall be marked in accordance
marked in accordance therewith."
therewith." CAppoA, p. 132)
(App. A, p. 132)
Attorney Hilliard apparently

Attorney Hilliard apparently learned
leamed of Judge
Judge Vaughan's
Vaughan's approval of the
approval of the stipulation
stipulation later
later that
that
his secretary
day and his
same day promptly reported
secretary promptly reported it to Attorneys
Attomeys Pepperman
Pepperman and Felmly
Felmly and to Mr.
e
Mathias. (App.A, p.
Mathias. CAppoA, p. 107) 9
Even though
Even the Court
though the had approved
Court had the stipulation,
approved the both the
stipulation, both the Association's
Association's new
new
Executive Committee
Executive Committee and the College carefully avoided
College carefully publicizing its specific terms.
avoided publicizing terrns. As David
David
Spalding put
Spalding it in
put it in an
an earlier
earlier email Mr. Mathias,
to Mr.
email to Mathias, "We
"'W.e are
are now
now working
working on
on aa very
very minimal
minimal
will only be used

release. It will
release. used after we hear
hear where
where this
this stands with judge or if it leaks from the
with the judge the
other to the
parties to
other parties action." CAppoA,
the action." p. 106)10
(App. A, p. T*" to
106)10 True to his
his word,
word, the
the press
press release
release which
which Mr.
Spalding's PR
Spalding's PR team issued
issued on the afternoon of June
June 27
27 was
was indeed minimal
minimal CAppo p. 108):
(App. A, p.
9
9 The frenetic efforts of the lawyers for both sides to get Judge Vaughan to sign off on the docket
docket marking
marking -- although neither
legally required nor customary in New Hampshire (f_scc_esaçraUy.
legally see generally,S5 Wiebusch, NEW HAMPSHIRE
HAMPSHIRE PRACTICE,
PRACIICE, Civil Practice
and Procedure $34.09) -- were
Pro-cedu-¡e §34,09) were undoubtedly
undoubtedly motivated
motivated byby an
an appreciation of the
the notion that,
that, as
as aa practical
practical matter, judicial
approval of the stipulation
stþulation would
would clothe
clothe it with a
a special
special aura of finality,
finality.
10
Mr. Spaulding's
10 Mr. Spaulding's mention
mention ofof possible
possible leaks by "the
leaks by "the other parties to
other parties to the
the action"
action" was
was a reference
¡eference toto four Alumni
Alumni
who had
Trustees who
Trustees had filed pro se
filed aa pro se amicus
amicus brief in the
brief in the Superior
Superior Court in favor
Court in favor of the
the Association's
Association's claims
claims and
and who
who
therefore were copied
the¡efore were copied on Attorney Felmly's filing
Attorney Felrnly's frling of the stipulation. Diana
the stipulation. Dia¡ra Lawrence obviously
obviously shared
shared Mr. Spaulding's
9
The New Hampshire
The New Hampshire Superior
Superior Court, on June
Court, on 27, issued
June 27, issued an
an order
order approving
approving the joint
the joint
stipulation filed by attorneys for Dartmouth College and the College's Association of
stipulation filed by attorneys for Dartmouth College and the College's Association of
Alumni voluntarily
voluntarily dismissing
dismissing the lawsuit brought
brought by the Association
Association in October 2007.
2007.
Dismissal follows the recent

The Dismissal recent election
election of the
the Association's
Association's new
new executive
executive committee,
committee,
all of whom
all whom were
were committed
committed toto ending
ending the lawsuit. The
the lawsuit. The eleven
eleven executive
executive committee
committee
members
members were
were elected by aa 60
elected by 60 percent with aa record
majority, with
percent majority, record 24,900
24,900 (38 percent) of
(38 percent) of
Dartmouth's
Darknouth's more
more than 60,000 alumni voting
voting in the
the election.
election.
)
The lawsuit was

The lawsuit was filed in October,
filed in October, 2007 after aa 6-3
2007 after 6-3 vote by the
vote by previous
Association's previous
the Association's
committee. The
executive committee.
executive lawsuit was
The lawsuit was opposed
opposed by by the
the previous
previous president of the
president of the
Association, Bill Hutchinson '76, as well as the executive committee of
Association, Bill Hutchinson '76, as well as the executive committee of the
the Alumni
Alumni
Council.
)
The
The Association did an even
Association did job than
even better job the College
than the College of attempting
attempting to keep
keep the lid on
the lid
publicity about the

any publicity the terms
terms of the dismissal.
dismissal. In
Úr a post
post on the Association's
Association's internet
intemet "blogspot"
"blogspot"
) on the
on the afternoon of June
afternoon of June 27, Mr. Mathias
27, Mr. Mathias entered the following
entered the following uninformative report: "This
uninformative report: "This
morning
moming the
the Court
Court approved
approved our voluntary
voluntary dismissal
dismissal of the lawsuit
lawsuit brought
brought by the Association of
Association of
Alumni against
Alumni against the
the College." p. 109)
College." (App. A, p.
The
The participants in these
participants in these dismissal
dismissal machinations
machinations had good reason
had good to want
reason to to keep
want to keep the
the
terms the stipulation

terms of the stipulation secret
secret for they
they knew
knew that
that others did not
others did not appreciate the significance
appreciate the of
significance of
what
what was being done. For
being done. For example,
example, the
the campus
campus newspaper,
newspaper, The
The Dartmouth, published several
Dartmouth, published several
editorials the June

editorials in the Jlur;re 23-27,
23-27, 2008
2008 timeframe while the
timeframe while the stipulation
stipulation was
was working way through
working its way through
the Grafton
the County Superior
Grafton County Court. Although
Superior Court. the authors
Although the of these
authors of editorials obviously
these editorials obviously
understood that the

understood that Prior Lawsuit
the Prior Lawsuit was
was being
being dismissed,
dismissed, they
they also
also assumed
assumed that the efforts
that if the of
efforts of
the
the Unity to achieve
Unity Slate to achieve a restoration parity through
restoration of parity through negotiation
negotiation were to fail, a new
were to lawsuit
new lawsuit
could be instituted.
instituted.ll
11
concerns
concerns because
because she
she sent
sent an email to
an email to Mr.
Mr. Mathias right after
Mathias right the stipulation
after the stþulation hadhad been filed suggesting
been filed that because
suggesting that the four
because the
trustees
trustees might
might begin
begin "blogging,
"blogging, em ailing, and
emailing, spinning," he
and spinning," he should
should issue pre-emptive press
issue aa pre-emptive release. Mr.
press release. Mr. Mathias,
Mathias, aa senior
senio¡
litigation partner
litigation partnsr at the
the Chicago
Chicago law firm of
law firm Blocþ declined
Jenner & Block,
of Jenner declined toto act,
act, reminding
reminding her,
her, "that's why I say
"that's why say we
we should wait
should wait
until judge issues
until the judge issues the
the dismissal order." (App.
dismissal order." (App. A, p.
p. 105)
11
For example,
11 For example, in in aa June 24, 2008
June 24, 2008 editorial,
editorial, the writer advocated
the writer advocated the following course
the following of action:
course of "If these
action: "If these talks
prove fruitless,
again prove fruitless, the
the new
new committee
committee -- yes,
yes, the
the same
same one
one that
that withdrew
withdrew this
this lawsuit
lawsuit -- must
must be prepared file a
prepared to file
new
ne\¡/ one to get what
what thethe alumni
alumni want.
want. They
They are, after all, the
the elected
elected representatives
representatives of the
the alumni." (App. A, p.
alumni." (App. p. 121)
10
10
the other
On the other hand,
hand, those who were
those who were actually
actually orchestrating
orchestating the
the "with prejudice"
prejudice" dismissal
dismissal
clearly grasped
clearly its potential
grasped its potential adverse
adverse effects the alumni's
upon the
effects upon alumni's legal
legal rights
rights to parity. For
to parity. For
example, Diana
example, Diana Pearson,
Pearson, another Darbnouth employee
another Dartmouth employee whose
whose notes
notes were
were obtained
obtained in discovery
discovery
by the Plaintiffs in the

the Plaintiffs the Current Lawsuit, recorded
Current Lawsuit, recorded aa conversation
conversation she had on June
June 30, 2008
2008 with
with
David Spalding
David Spalding about
about discussions
discussions he had
had earlier
earlier had with John
had with John Mathias. pp. 124-130)
Mathias. (App. A, pp. 124-130)
Ms. Pearson's
Ms. Pearson's notes
notes report
report that Mr. Spalding,
that Mr. Spalding, either
either speaking
speaking for himself
himself or for Mr. Mathias
Mathias or
or
)
both, acknowledged
both, acknowledged that
that although
although the
the election
election was
was "Fought
"Fought over parit¡" dismissing
over lawsuit not parity," dismissing
Prior Lawsuit in the manner

the Prior parties did was intended
manner that the parties interided to render "1891 dead forever,"
forever,"
thereby "Ending parity-

thereby "Ending A,p.I25)
deal." (App. A,
parrty - done deal." p. 125) See App.A,
See also, App. A, p.
p. 131 (email of David
David
Spalding of June
Spalding 22,2008
June 22, taking issue
2008 taking with aa proposed
issue with public statement
proposed public statement on the
the dismissal
dismissal that
that
would have commented

would have commented that
that the
the dispute
dispute about panty was
about parity was still "far from over").
over"). Mr. Mathias
Mathias is
also recorded
also in Ms
recorded in Ms Pearson's
Pearson's notes as saying
notes as that what
saying that what they
they had
had done
done caused
caused him to be
him to be
"concerned pol." (App.

"concerned pol." p. 126) (The abbreviation
(App. A, p. abbreviation "pol."
'þo1." presumably
presumably stands for "politically.")
"politically.")
Spaulding urged
Mr. Spaulding urged caution
caution so as not to stir up the
the alumni;
alumni; as
as he put it, "move slowly -- board
boa¡d to
reflect, * then take

consult +
reflect, consult take action."
action." (Ibid.).12
(Ibid.).l2
things turned
As things turned out, the
the concerns
concerns of the
the Association's
Association's new
new Executive
Executive Committee of
Committee and of
the College
the College that if someone
that if someone learned
learned of the terûis of the
the terms the stipulation,
stþulation, he/she
helshe might
might try to
to challenge
it were well founded.

were well founded. Despite their efforts
Despite all their efforts to keep
keep secret
secret the
the fact that
that the
the Prior
Prior Lawsuit
Lawsuit was
being dismissed
being prejudice," aa former
dismissed "with prejudice," fonner member
member of the
the Association's
Executive Committee,
Committee,
Frank Gado,
Frank found out about it -- and he did try to
Gado, found to challenge it. On:the
challenge it. On the very same day that
that Judge
Judge
)
Vaughan issued
Vaughan his telephonic
issued his telephonic order
order signing off on
signing off on the
the stipulation -- but,
but, as
as luck would
would have
have it,
12
12 E r"o the
Even the President
President of the College and
the College at ex
a¡d an oficio member
ex officio member of of its
its Board
Board of Trustees,
Trustees, James
James Wright,
Wright, waswas concerned
concemed that
that the
the
dismissal o the lawsuit might not stick; for when he was
dismissal of was informed David Spalding
informed by David Spalding on June 27 that judge has
"the judge
thati'tlìe has accepted the
the
withdrawal
withdrawal dedviaemailasfollows:
of the lawsuit with prejudice;" he responded "David-goodnews.
via email as follows: "David - good news. good job. now
goo0¡oÉ. we have to
nowwe-haveto
understand
understand is!" (App.
concqlt is!"
how comprehensive the 'with prejudice' concept (App. A, p. 123)
A" p. 123) [Note:
[Notè: President Wright's ema.il
President-Wright's email name
name was
was
"2X999;'l
"2X99q."]
11
11
afier the
after order had
the order had already been
been issued Mr. Gado had
issued -- Mr. had a letter
letter delivered
delivered to the
the Clerk
Clerk of Court
requesting that
requesting that the
the Court delay
delay accepting
accepting any
any dismissal
dismissal ofthe
of the case.
case. CAppoB, p. 134)
(App. B, p. 134) Mr. Gado
requested that
requested he and the
that he the other
other members
members of the "old" Executive
the "old" Executive Committee
Committee who
who had
had supported
supported
filing the Prior Lawsuit

the Prior Lawsuit be given an
be given an opportunity to consult
opportunity to with counsel to determine
consult with detennine what new
new
course might be
course of action might be available them. CAppo
available to them. p. 134)
(App. B, p. 134) However,
However, because
because Judge Vaughan
had already
had already issued his order,
issued his Mr. Gado's
order, Mr. Gado's representative
representative was
was informed
informed that
that he
he was
was "too
"too late."
(App.B, p.
CAppoB, p. 137, ~16)
Jfl6)
the other hand,

On the hand, despite
despite his inability to do anything
his inability anything about it, Mr. Gado's
Gado's persistence
persistence at
least overcame
least the College's
overcame the College's disinformation
disinformation campaign
campaign and
and resulted in the
resulted in the alumni
alumni being
being made
made
13
aware
aware of the
the exact wording
wording of the stþulation.
the stipulation. 13
B.
B. Current Lawsuit
The Current
During the pendency

During pendency of the Prior Lawsuit,
the Prior Lawsuit, the
the College's
College's Board
Board of Trustees
Trustees had instituted
instituted
aa so-called "freeze" upon

so-called "freeze" upon the filling of vacant
the filling vacant Board seats. However,
Board seats. However, at its
its first meeting
meeting after
the dismissal
the dismissal of the litigation, in September,
the litigation, September, 2008,
2008, the
the Board
Board voted
voted to lift the
the freeze
freeze and to
to elect
five new
five new Charter Trustees. This
Charter Trustees. partially executed
This partially executed the
the Board's
Board's decision
decision in the
the Fall of 2007
Fall of 2007 to
expand its membership

expand its by adding
meurbership by adding eight new Charter
eight new Trustees -- but
Charter Trustees no corresponding
but no corresponding new
Alumni Trustees,
Alumni thus formally breaching
Trustees, thus parity. When
breaching parity. When the Board
Board refused
refused at its November,
November, 2008
} meeting to re-consider
meeting to its decision
re-consider its decision and to match
and to match the
the appointment
appointment of the
the new
new Charter
Charter Trustees
with an equal number

with number of new Alumni Trustees,
new Alumni Trustees, it became
became apparent
apparent that the Unity
Unity Slate's
Slate's strategy
atternpting to preserve
of attempting parity through
preserve parity through negotiation
negotiation - if not
not a total
total farce
farce - was
was at least
least a failure.
)
13
M.. Gado
13 Mr. Gudo subsequently
subsequently attempted in the
intervene in
attempted to intervene the Prior Lawsuit and
Prior Lawsuit and moved
moved to have
have the
the "with
"with prejudice"
prejudice" wording
wording stricken
from the
from stipulation. (App.
the. stipulation. (App. B,B, pp.
pp. 140-147)
140-147) Judge
Judge Vaughan,
Vaughan, however,
however, denied Mr. Gado's
denied Mr. Gado's Motion
Motion to to Intervene
Intervene (presumably
þresumably
because he
because he was too late)
was too late) and,
and, accordingly, Mr. Gado's
accordingly, Mr. Gado's Motion to Disallow
Motion to Disallow Docket
Docket Marking in its
Marking in its Present
Present Form
Form was
was marked
marked
"moot." (App.
"moot." (App.B, p. 148)
B, p.
I2
12
Accordingly, seven
Accordingly, individual alumni
seven individual alumni stepped filed the
stepped forward and filed Curent Lawsuit.
the Current (App. C,
Lawsuit. (App.
pp.
pp. 17_38)14
17-38)ra
C.
C. The Plaintiffs
The
None of the
None Plaintiffs in the
the Plaintiffs the Current
Current Lawsuit
Lawsuit had
had any personal
personal involvement
involvement in the
the Prior
Prior
Lawsuit. (App.B,
Lawsuit. (App. B, Dartmouth
Dartrnouth Ex.
Ex. BB through
through HR,
HH, pp. 310-337, #5. See also,
Interrogatory #5.
3I0-33T,Interrogatory also. App.
B, Dartmouth
Dartmouth Ex. BB through
through HH, pp. 310-337, Interrogatory #7)
370-33T,lnterrogatory
Each of the Plaintiffs is a graduate

Plaintiffs is graduate of Dartmouth
Dartmouth and, by reason
reason thereof,
thereof, a member
member of the
the
Association. Paragraph
Association. Paragraph 31 ofthe Petition further describes
of the Petition describes the Plaintiffs
Plaintiffs as follows:
Plaintiffs and
The Plaintiffs
The all other
and all other alumni have aa special
alumni have special interest in Dartmouth's
interest in Darbmouth's governance,
govemance,
distinct from that
that of the
the general population, by dint of the
general population, the 1891 Agreement,
Agreement, their reliance
reliance
the College's
on the promises and actions, their having
College's promises having attended
attended the
the College
College as students,
students, their
their
continuing relationship
relationship to the
the College,
College, their
their historical
historical role
role in the
the selection
selection of its trustees,
kustees,
their financial
their financial and other
other contributions,
contributions, and their
their ties
ties of affection
affection and loyalty. (App. C, p.
loyalty. (App.
28)
28)
By way
By way of example,
example, the affidavit of Plaintiff
the affidavit Plaintiff John
John Steel, III, a former Alumni Trustee,
former Alumni Trustee, catalogs
catalogs
some the specific actions taken by him in reliance upon

some of the upon the
the 1891 Agreement
Agreement and the
the College's
College's
parity:
promises of parity:
other promises
II personally
)
personally have
have engaged
engaged inin many
many of of the
the foregoing in reliance
activities in
foregoing activities upon the
reliance upon
College's agreements
College's promises
agreements and promises that alumni would
that alumni would have
have the right to
the right to elect one-half of
one-half of
the
the elected
elected Board
Board of Trustees,
Trustees, including
including but not limited to:to: making
making contributions
contributions over the
course of the
course last 50+
the last 50+ years to the
years to the College
College and to Darlmouth -- affiliated
to Dartmouth affiliated organizations,
running and
running getting elected
and getting elected and
and serving
serving as Alumni Trustee
as an Alumni Trustee on
on the
the Board,
Board, sending all
five of my
five my children to Dartmouth,
children to putting Dartmouth
Dartmouth, putting Dartmouth in in my
my estate
estate plan,
plan, raising
raising funds
from others
from others for Dartmouth
Darbmouth and serving
and serving asas an officer my local Darmouth Club.
officer of my local Dartmouth Club. (App.
4,p.43)
A, p. 43)
D.
D. Motion
Judgment Motion
The Summary Judgment
July 17,
On July 17,2009, both sides had conducted
2009, after both conducted extensive discovery,
discovery, the
the College
College filed a
Motion for Summary

Judgment seeking to dismiss
seeking to dismiss the Curent Lawsuit
the Current Lawsuit on
on the
the grounds
grounds (a) that
that
la
14 The references
The references herein
he¡ein to "App. C" are to the
"App. C" the Appendix
Appendix C to this
this Brief
Brief which
which contains
contains pleadings
pleadings and
and orders
orders other
other
than the
than the College's for Summary
Motion for
College's Motion Summary Judgment
Judgment and Plaintiffs' responses
and the Plaintiffs' responses thereto,
thereto, which
which are in Appendices
Appendices B
and A, respectively.
respectively.
13
T3
)
the
the Plaintiffs
Plaintiffs allegedly
allegedly have
have no
no standing to sue to enforce the Agteement and (b) that
the 1891 Agreement of
that all of
the
the Plaintiffs'
Plaintiffs' claims
claims are
are allegedly
allegedly barred
ba:red by the
the doctrine judicata on account of the
doctrine of res judicata the filing
of the
of the stipulation of dismissal
stipulation of "with prejudice"
dismissal "with in the
prejudice" in Prior Lawsuit.
the Prior (App. C, pp.
Lawsuit. CAppoC, 7-32) The
pp. 1-32) The
Plaintiffs
Plaintiffs filed aa timely objection
objection and memorandum of law in support thereof.
memorandum oflaw thereof. CAppo pp. 1-41)
(App. A, pp.
The
The Plaintiffs joined in their
Plaintiffs were joined their opposition
opposition to the
the College's
College's motion Zywicki,
Amicus Todd Zywicki,
motion by Amicus
a former Alumni Trustee.

fonner Alumni Trustee.
The
The Superior
Superior Court heard
heard oral argument on the College's motion
the College's judgment
motion for summary judgment
on December
on 4,2009.
December 4, On January
2009. On 8, 2010,
January 8, 2070, Judge Vaughan issued
Judge Vaughan an order
issued an granting the
order granting the
College's
College's motion.
motion. (App.
(App. C, pp.
pp. 1-13)
1-13) The Plaintiffs filed a timely Motion for Reconsideration, to
Plaintiffs filed
which
which the
the College objected. CAppoC,
College objected. pp. 52-61
(App. C, pp. 52-61 and 62-71) On
and 62-71) On February 5, 2010,
February 5, 2010, Judge
Judge
Vaughan
Vaughan denied
denied the
the Motion
Motion for Reconsideration.
Reconsideration. CAppoC, pp. 14-46)
(App. C, pp. This appeal
14-46) This appeal was timely
was timely
Plaintifß on March
filed by the Plaintiffs March 18, 2010.
V. SUMMARY
V. ARGI]MENT
SI]MMARY OF ARGUMENT
1.
1. The Plaintiffs
Plaintiffs have
have personal the 1891 Agreement.
personal standing to sue to enforce the Agreement'
2. The
The stipulation filed by
stipulation filed by the
the Association
Association and the College
and the College dismissing
dismissing the Prior Lawsuit
the Prior Lawsuit
)
"with prejudice"
prejudice" provides
provides no res judicatabar
res judicata bar to the
the Current
Current Lawsuit.
\rI. ARGUMENT
VI. ARGUMENT
A.
A. Preliminarv Matters.
Preliminary Matters.
There
There are
are no
no disputes of material
disputes of fact. Since
material fact. Since the
the rulings by the
rulings by the Superior Court were
Superior Court were
rulings
rulings of law,
law, this
this Court
Court is
is not
not bound
bound to give any
to give any deference to the
deference to the conclusions by the
reached by
conclusions reached
IS
Superior
Superior Court
Court and
and all
all matters
matters at
at issue
issue should be decided
should be de novo.
decided de novo.ls Ë'.s., Hill-Grant
E.g., Livine
Hili-Grant Living
Trust V.
v. Kearsage Liehting Precinct,
Kearsage Lighting H.529,532
Precinct. 159 N. H. (2009).
529, 532 (2009).
ility ofthe
IS Independently, the applicability of the doctrine
doctrine of res judicata is always
judicata is question oflaw
always a question of law to be
be decided
decided de novo this Court.
novo by this
E.g .. Kalil v. Town of Dummer ZoninlfBoard of Adjustment, _ N. H. H._(February
(February 11, 2010);
2010); South Propefties' LLC
South Willow Properties,
v. Burlington Coat Factorv of New Hampshire, LLC, _N.N. H. __ (December 16, 2009).
(December 20Q9).
t4
14
B. Since The Undisputed Facts Establish That The Parties To The 1891 Agreement
Intended And Expected Alumni Such As The Plaintiffs To Be Individually Benefited
. By And Have Rights Under The Contract, The Superior Court Was In Error In
Ruling That The Plaintiffs Do Not Have Standing As Third-Party Beneficiaries To
Their Own
Sue In Their Own Names This Contract.
Names To Enforce This Contract.
New Hampshire
New generally follows the
Hampshire generally RESTATEMENT OF CONTRACTS
the RESTATEMENT CONTRACTS on issues of
issues of
contract law. Section

contract law. Section 302
302 of the RESTATEMENT states
the RESTATEMENT states the
the rule
rule as
as to
to when
when non-parties
non-parties to
to aa
contract may
contract be recognized
may be recognized as third-
as third party beneficiaries
party (which itit calls
beneficiaries (which calls "intended
"intended
beneficiaries"), who,
beneficiaries"), who, under
under the
the common law, are
common law, are entitled to sue to
entitled to to enforce the
the contract
contract in their
their
names. In relevant
own names. part, Section
relevant part, Section302
302 states follows: "Unless
states as follows: "IJnless otherwise agreed between
between aa
promisor and promisee,

promisor promisee, a beneficiary
børeficiary of a promise
promise is
is an intended
intended beneficiary
beneficiary if recognition
recognition of aa
performance in the beneficiary

right to performance beneficiary is appropriate
appropriate to effectuate the intention of the parties
parties and
... the
... the circumstances
circumstances indicate
indicate that promisee intends
that the promisee to give
intends to give the beneficiary
beneficiary the benefit
benefit of the
performance." RESTATEMENT
promised performance." (sECoND) OF
RESTATEMENT (SECOND) oF CONTRACTS
CONTRACTS §302(1)(b).
$3 02( 1 Xb).
According to the
According to the RESTATEMENT,
RESTATEMENT, therefore, the critical
therefore, the critical determinant of whether
deterrninant of whether aa
has any
contract has
contract any third-party
third-party beneficiaries is the
beneficiaries is the "intention of the
"intention of the parties."
parties." Citing to the
Citing to the
RESTATEMENT, this
RESTATEMENT, this Court
Court has
has articulated the test
articulated the test as follows: "A
as follows: "A third-party
third-party beneficiary
beneficiary
if ...
relationship exists if
relationship ... the
the contract is so expressed
expressed as to give the promisor
promisor reason
reason to know
know that
that aa
benefit to a third
benefit to pffity is
third party is contemplated by the
contemplated by promisee as
the promisee as one
one of the
the motivating
motivating causes
causes of his
making the contract

making the .... A benefit
contract .... to aa third
benefit to third party is aa'motivating
party is 'motivating cause' of entering
cause' of entering into
into aa
contact only
contract only where the promisee
where the promisee intends 'to give
intends 'to give the
the beneficiary
beneficiary the
the benefit
benefit of the
the promised
promised
performance."' Grossman
performance.'" Grossman v. Murray, N.H. 345,
Murra-'r', 144 N.H. 347-8 (1999).
345,347-8 (1999).
)
The entire
The entire evidence
evidence of record with respect
record with to the
respect to the intentions
intentions of the
the parties
parties to
to the
the 1891
1891
Agreement is contained
Agreement contained in the two documents
documents which
which together
together form the Agreement:
forrn the Agreement: the
the June
June 23,
1891 of the
Resolution of
1891 Resolution the College's
College's Board of Trustees
Board of Trustees and the June
and the l89l Report
25, 1891
June 25, of the
Report of
15
Association to
Association to the alum¡i. (See
the alumni. (See generally, App. A,
eenerally, App. pp. 159-166
A, pp. 159-766 & App.
App. B, pp. 93-94) Both
pp. 93-94) Both
make
make specific references
references to the benefits
benefits which parties expected
which the parties expected the Agreement to confer upon
confer upon
the
the alumni
alumni and,
and, in turn,
turn, the
the obligations
obligations which
which it imposed
imposed upon
upon them.
them. In a nutshell,
nutshell, the benefit
the benefit
which the
which the 1891
1891 Agreement
Agreement conferred
conferred upon
upon the
the alumni
alumni was the opportunity to
was the to participate in a
participate in
process to choose
process to choose one-half
one-half of the
the members
members of the Board of Trustees
the Board the Superior
Trustees and, as the Court
Superior Court
correctly observed,
observed, to thus "a greater
thus enjoy "a greater role in management
management of Dartmouth (App. C,
Dartmouth College." (App.
p. 11)
p. 11) In
In particular,
particular, this is how
this is how the
the Association's
Association's Report to the
Report to the alumni
alumni described what the
described what the
committee
committee which
which negotiated
negotiated the Agreement
Agreement with the Board
Board of Trustees
Trustees intended:
The
The Committee's
Committee's opinion
opinion was that
that the most
most certain,
certain, if not
not the onl¡ effectual
the only, way
effectual way
to create
to create and
and preserve
preserve the live, constant,
the live, active interest
constant, active of the
interest of the Alumni in the
Ahururi in the
College,
College, and their cooperation
and their cooperation in in its
its affairs,
affairs, was
was toto confer
confer upon them aa real,
upon them
substantial, personal responsibility
substantial, personal responsibility thereon; that a mere
thercon; that mere advisory
advisory Board with no
Board with
rights, or the
rights, or the mere privilege of
mere privilege of occasionally making a nomination
occasionally making nomination ofof a possible
Trustee,
Trustee, would
would be too uncertain,
uncertain, contingent,
contingent, and remote
remote a right, to excite
excite and keep
keep
up that clear, constant, active interest
that clear, constant, active interest of the Alumni, which needed,
the Alumni, which is needed, and which
which
it was
it was the duty of
the duty of your
your Committee
Committee to to secure, if possible.
secure, if (App. A,
possible. (App. p. 161)
A, p.
(emphasis
(emphasis in original)
original)
Note
Note that
that the
the Report
Report refers
refers to the
the alumni
alumni having
having been granted something
been granted "personal." In
something "personal." Út
other
other words,
words, the
the essential
essential intent
intent ofthe
of the framers of the
the 1891 Agreement
Agreement was not merely confer a
merely to confer
)
participatory privilege
participatory privilege in the
the College's
College's governance
governance upon
upon the
the Association
Association of Alumni, entity,
Alumni, as an entity,
I6
but to confer
but to confer this privilege upon
this privilege upon the
the individual
individual members
members of the
the body alumni.l6
body of alumni. Although the
Although the
privilege was
privilege was to be
be exercised
exercised through
through a collective process administered
collective process by the
administered by the Association, the
Association, the
benefit
benefit of the
the College's
College's agreement to accept
agteement to accept alumni parity on
alumni parity on its Board
Board of Trustees
Trustees was clearly
was clearly
intended
intended to devolve
devolve upon
upon the
the alumni themselves.V
thernselves.lT
t6
Not., also,
16 Note, also, that if one
one examines
examines the
the other
other side
side of the
the contractual
contractual equation,
equation, the
the situation parallel. For
situation is parallel. For it is also the alumni, not
the alumni, not
the
the Association,
Association, fromfrom whence
whence the
the consideration
consideration for
for the
the College's promise of parity
College's promise flows. Suffice
parity flows. to say that
Suffice it to that such things as
such things
making
making financial
financial contributions to the
contributions to the College,
College, serving
serwing on
on College
College committees,
committees, serving
serving on
on the Board of Trustees
the Board Trustees and voting in
and voting
elections
elections for Alumni
Alumni Trustees
Trustees (see
(see Petition
Petition ~3l-32,
!f3 7-32, App. pp.28-29)
App. C, pp. 28-29) are
are all the
the acts
acts of individual
individuøl alumni, not the Association.
the Association.
t7
Whil" less
17 While less expressive
expressive of the
the parties'
parties' intent
intent to
to confer
confer benefits
benefits upon
upon the
the alumni
alumni as
as individuals,
inclividuals, the
the June
June 23, lSgl Resolution
23, 1891 of
Resolution of
the
the Board
Board ofof Trustees,
Trustees, which
which isis the
the document
document constituting the College's
constituting the College's component
component of of the
the 1891 Agreement, states
1891 Agreement, that the
states that the
College granting the
College is granting the right
right to nominate
nominate Alumni
Alumni Trustees
Trustees to "the
"the graduates
graduates of the
the College." (App. B, p. 93)
College." (App.
16
T6
Indeed, the College
Indeed, the itself has
College itself taken certain
has taken certain actions which essentially
actions which essentially acknowledge
acknowledge that
that
privileges exist
whatever privileges
whatever with respect
exist with to alumni
respect to alumni representation
representation on
on the
the Board of Trustees,
Board of Trustees, the
the
alumni themselves
alumni themselves possess
possess those privileges. For
those privileges. For example,
example, at
at the
the same
same meeting in September,
meeting in September,
2007, that
2007, the Board
that the Board voted
voted to breach panty, it also
breach parity, also voted to take
voted to take over
over administrative
administrative control of
control of
)
the process
the for the
process for the election Alumni Trustees.
election of Alumni (App. C,
Trustees. (App. Petitionfl37,pp.30-31)
C, Petitiorr[S 7, pp. 30-31) Only
Only if the
the
Alumni Council
Alumni (which nominates
Council (which nominates candidates for Alumni
candidates for Alumni Trustee
Trustee seats)
seats) and
and the
the Association
Association
(which conducts
(which the elections
conducts the for those
elections for those seats in the
seats in the event of aa contest)
event of contest) were to change
were to change their
their
)
to "reform"
constitutions to
constitutions "reform" the
the electoral
electoral process in a manner
process in manner to the liking of the
the liking the Board
Board would
would the
the
Board agree to return

Board return administrative
administrative control of the
the elections
elections to these two organizations.
organizations. In other
other
) words, the College

words, the College considered the Association
considered the (and the
Association (and the Council)
Council) superfluous to the
superfluous to the alumni's
alumni's
exercise their rights

exercise of their rights to participate
participate in the govemance of the
the governance the College.
College. See Public of
Public Service Co. of
N.H. v. Hudson
N.H. v. Hudson Light
Lieürt and
and Power Dept., Q38
Power Dept., F.2d 338,
938 F.2d 338, 345 (lst Cir.,
345 (1st Cfu., 1991)
1991) (third-party
(third-party
beneficiary standing
beneficiary is especially
standing is especially appropriate the contract
where the
appropriate where contract promisee is only
promisee is only aa "token
"token
intermediary'' for the real parties in interest).

intermediary"
Accordingly, the
Accordingly, the undisputed
undisputed evidence of record
evidence of record sufficiently
sufficiently satisfies the intent-to-
satisfies the intent-to-
benefit prong of the

benefit prong the RESTATEMENT's
RESTATEMENT's third-party
third-party beneficiary test. Nevertheless,
beneficiary test. Nevertheless, the
the College
College
probably argue
will probably below -- that
argue on appeal -- as it did below that there must
must also be
be evidence
evidence that
that the parties
parties
specifically intended
specifically putative third-party
intended to give putative third-party beneficiaries
beneficiaries a right to sue on the
the contract.
contract. To
begin with, the

begin with, the evidence
evidence of record
record establishes
establishes that
that the parties to the
the parties the 1891 Agreement
Agreement did indeed
to confer
intend to
intend not just
rìghts and not
confer rights }ust benefits upon
upon the alumni. In this regard,
the alumni. regard, the
the June
June 25,
25, 1891
1897
report to the
report to the alumni
alumni specifically
specifically states
states that the 1891
that the Agreement -- unlike
1891 Agreement prior plans
unlike prior plans which
which the
the
alumni and the

alumni the College had considered
College had considered -- was intended
intended to grant the
the alumni "rights" which
which would
would
"excite ... [their]

"excite ... ... clear,
[their] ... clear, constant
constant active
active interests ...,, which
interests ... which is
is needed, which it was
needed, and which was the
I7
17
)
duty your Committee

duty of your possible." (App., p.
Committee to secure, if possible." 161) Although
p. 161) Although the report
report does not, in
many words,
so many parties' intent
words, express the parties' intent to grant
grant the
the alumni
alumni standing to
to sue on the
the contract,
contract, it
is arguable
is arguable that ability to
the ability
that the to enforce the alumni's
enforce the alumni's rights
rights to parity implicit in the
parity is implicit the granting of
granting of
such rights because,

such because, as
as Chief Justice
Justice John
John Marshall
Marshall so famously
famously put it, "a right without
"a/rgþt without aa remedy
remedy
)
is no right at all."
a11." Marburyv.
Marbury v. Madison,
Madison, 5 U.S.
U.S. 137, 163 (1803).
137,763
More important,
More is no
important, there is no mention
mention in the
the RESTATEMENT in the
RESTATEMENT or in the New
New Hampshire
Hampshire
case
case law of any such requirement that
such requirement that the parties express
the parties express a specific intent to confer
confer upon
upon a third-
)
beneficiary the right to sue on the

party beneficiary the contract. As stated in RESTATEMENT
contract. As RESTATEMENT (SECOND) OF
CONTRACTS §304:
CONTRACTS $304: "A promise in aa contract
promise in contract creates
creates aa duty
{uty in the
the promisor to any
promisor to any intended
beneficiary to perform
beneficiary to perforrn the promise, and
the promise, and the
the intended
intended beneficiary
beneficiary may
may enforce
enforce the duty." See
the duty."
also, id. aI comment

also, id.at d. This
comment d. This makes perfect sense
makes perfect light of the
sense in light the fact
fact that
that the
the RESTATEMENT
RESTATEMENT
rule is really
rule really a default rule; in other
default rule; other words,
words, it is designed provide a rule
designed to provide rule of construction
conskuction where
the parties to the

the parties the contract
contract have included language
have not included language therein
therein which
which expresses
expresses their
their intent
intent about
enforcement by non-parties.
enforcement by And, since
non-parties. And, since the parties to a contract
the parties contract only rarely
rarely express
express their
their intent
on such matter, having

such a matter, having a default
default rule in this perfectly appropriate.
this area is perfectly
other words,
In other words, once
once the intent-to-benefit test has been
the intent-to-benefit been satisfied -- as
as it is in this
this case
case - it
is the
is the law,
law, not
not the
the specific intent
intent of the which supplies
parties, which
the parties, supplies the
the third-party
beneficiary with
with
the power to
the power to enforce
enforce the contract. As prescribed
the contract. prescribed in the RESTATEMENT,
RESTATEMENT, whether
whether the will
the law will
recognize such a right -- expressed therein

recogrrize such therein as
as "a right to performance"
perforrnance" -- depends
depends upon
upon whether it
is "appropriate
is to effectuate
"appropriate to the intention
effectuate the of the
intention of parties." RESTATEMENT
the parties." RESTATEMENT (SECOND)
(SECOND) OF
)
coNrRACrs §302(1)(b).
CONTRACTS $302(1)@).
The Plaintiffs respectfully

The Plaintiffs respectfully submit
submit that is entirely
that it is entirely "appropriate"
"appropriate" to recognize
recognize individual
individual
alumni rights
alumni of performance
rights of with respect
perforrnance with to the
respect to the 1891
1891 Agreement.
Agreement. Besides
Besides the
the fact
fact that
that the
18
18
parties to the
parties to the contract
contract expressed their intent
expressed their to confer
intent to confer personal rights upon
personal rights the alumni,
upon the
alumni-- such
individual alumni
enforcement of the contract by individual such as these Plaintiffs
Plaintiffs -- necessarily
necessarily inures to
the benefit all alumni.

benefit of all ahtmru To put things
things the
the other way, no other alumnus can be prejudiced by the
relief sought by these Plaintiffs.

relief Plaintifß. In other
other words,
words, if the Plaintifß are
the Plaintiffs are successful
successful in enforcing
enforcing the
Agreement, they
1891 Agreement, will have
they will no greater
have no ability to actually choose
greater ability choose the persons will serve
persons who will
Alumni Trustees
as Alumni Trustees than other will.
other alumni will.
The other
The other reason that recognizing
reason that recogniztng the
the right of individual
right of individual alumni to sue
alumni to sue on
on the
the 1891
1891
)
Agreement is appropriate to
Agreement to effectuate
effectuate the
the intention
intention of the parties
parties arises of the public
arises out of policy
public policy
implications of enforcing
implications enforcing the
the contract issue. The way in which public
contract at issue. public policy militates in favor
favor
of permitting
permitting this
this suit go forward
to go
suit to will be
forward will be addressed in detail
addressed in in the
detail in the brief
brief to
to be
be filed
filed by
by the
amicus in this case, Alumni Trustee

case, former Alumni ToddZywrcki.
Trustee Todd Zywicki. If anything
anything beyond
beyond what the Plaintiffs
Plaintiffs
offer herein
offer herein is
is needed
needed to tþ the
to tip the scales justice on
scales of justice this issue,
on this issue, Professor Zywicki's brief
Professor Zywicki's brief will
clearly establish
clearly why Dartmouth's
establish why Dartmouth's 100+ year history
100+ year history of alumni
alumni representation
representation on its
its governing
goveming
body is something worth

worth preserving.
preserving.
c.
C. The Superior Court Assumed, Without Deciding, That the Plaintiffs Do Have
Standing as Members of the Association to Bring Suit in Their Own Names to
Enforce the 1891 Agreement. The Undisputed Facts Indeed Confirm That the
Superior Court's Assumption Was Correct And, Therefore, Such a Ruling Is
Compelled in this Case.
Compelled
) The Association is an unincorporated

Association is entity and the
unincorporated entity
The Plaintiffs claim
the Plaintiffs claim to
to have
have standing
standing as
as
members thereof
members personally sue
to personally
thereof to sue on the contract.
on the contract. The law of New
The law New Hampshire
Hampshire is
is admittedly
fiizzy on this point.

fuzzy point. The primary
primary case
case on the rights
rights and obligations
obligations of members
members of unincorporated
unincorporated
is Shortlidge
associations is
associations v. Gutoski,
Shortlidge v. Gutoski. 125 N.H. 510
125 N.H. (1934). In that
510 (1984). that case,
case, the
the Court
Court held
held that
that
individual members
individual of an
menbers of an unincorporated
unincorporated association be sued
could be
association could sued personally
personally on
on contracts
entered the association

entered into by the which such
association to which such members
members had
had assented
assented and ratified.
ratified. Id. at 515.
515. The
t9
19
Plaintiffs take
Plaintiffs take the position that
the position that the
the reverse is also
reverse is true, i.e.,
aiso true, i.e.. that
that individual
individual members of an
members of
unincorporated association
unincorporated association can
can sue to enforce
sue to enforce contracts
contracts of the
the association to which
association to which they
they have
have
t8 See
ratified. 18 S"" Bowker
assented
assented and ratified. Bowker v. Nashua
Nashua Textile
Textile Co.,
Co.. Inc., N.H. 242,
Inc., 103 N.H. 246 (1961)
242,246 (1961) (only
shareholders who have

shareholders have themselves
themselves suffered injury may bring
bring a stockholders'
stoclúolders' derivative
derivative suit).
D.
D. Even If
Even If the
the 1891 fs Deemed
Asreement Is
1891 Agreement Deemed Not Not to Be aa Contract
to Be Contract Between
Between the
Association and the College, the Plaintiffs, as Persons Who the Undisputed Facts
Establish That the College Should Reasonably Have Expected to Rely upon its
Promises Regarding Parity and Who Have in Fact Taken Actions in Reliance upon
the College's Said Promises, Have Standing under the Doctrine of Promissory
Estoppel to Sue in Their Own Names to Enforce the College's Promises.
New Hampshire
New Hampshire recognizes promissory estoppel
recognizes promissory as aa cause
estoppel as of action
cause of that serves
action that serves to
"impute contractual
"impute contractual stature
stature based
based upon
upon an underlying
underlying promise,
promise, and to provide
provide a remedy to the
remedy to
J
party who
party who detrimentally
detrimentally relies on the
relies on promise." Great
the promise." Great Lakes Aircraft Co.,
Lakes Aircraft v. City
lnc. v.
Co.. Inc. City of
of
Claremont, 135
Claremont, N.H. 270,
135 N.H. (N.H. 1992).
290 (N.H.
270, 290 The RESTATEMENT
1992). The (SECOND) OF
RESTATEMENT (SECOND)
CONTRACTS, §90
CONTRACTS, $90 defines this
this cause
cause of action
action as follows:
promise which
A promise which the promisor should
the promisor should reasonably
reasonably expect to induce
induce action
action or forbearance
forbearance
on the
on the part of the
part of promisee or
the promisee or aa third
third person
person and which does
and which does induce
induce such
such action
action or
forbearance is
forbearance is binding if injustice
binding if injustice can bebe avoided
avoided only by by enforcement
enforcement of the
the promise.
remedy granted
The remedy granted for breach limited as
breach may be limited justice requires.
as justice
)
Some
Some elements promissory estoppel
elements of a promissory claim are very
estoppel claim very similar to the
the elements
elements of a third-
party beneficiary
party beneficiary claim: (a) aa promise-reasonably-expected-to-induce-another's-action-or-
claim: (a) promise-reasonably-expected-to-induce-another's-action-or-
forbearance intention-to-benefit-another arid

forbearance vs intention-to-benefit-another and (b) injustice-being-avoided-only-by-enforcement-
injustice-being-avoided-only-by-enforcement-
of-the-promise vs recognition-of-a-right-of-performance-being-appropriate-to-effectuate-the-
oÊthe-promise vs recognition-of-a-right-oÊperfonnance-being-appropriate-to-effectuate-the-
intention-of-the-parties. As
intention-of-the-parties. As argued
argued above,
above, the
the undisputed
undisputed facts
facts establish
establish the Plaintiffs' standing
the Plaintiffs'
)
to sue
to sue as
as third-party
third-party beneficiaries
beneficiaries and it isis respectfully
and it respectfully suggested the same
that the
suggested that same evidence
evidence
adequately
adequately establishes their standing
establishes their standing to sue under promissory
estoppel.
18
18 The Plaintiffs allege
The Plaintiffs allege such
such assent
assent and in paragraph
ratification in
and ratification paragraph 31 of their
31 of their Petition
Petition and
and such
such allegation
allegation is
substantiated
substantiated by the afñdavit of Plaintiff
the affidavit (App. A, p. 43)
John Steel. (App.
PlaintiffJohn
20
-,
The only additional
The only additional element of a promissory
element of promissory estoppel
estoppel claim is that
claim is that the
the promise
promise of the
promisor must
promisor must have actually induced
have actually the action
induced the or forbearance
action or forbearance which
which the
the promisor
promisor expected.i"
expected.le
The Plaintiffs have

The Plaintiffs that they
have alleged that they all relied upon
upon the
the College's
College's promise
promise of parity
parity and that
that they
they
took actions
took in reliance
actions in reliance thereon. (App. C, Petition,
thereon. CAppoC, Petition, ~~30-31
1TT30-31 & 77-8I, pp.
&, 77-81, 28 and
pp. 28 At
36_37)20 As
and,36-37)t0
noted above,
noted above, the Plaintiffs have
the Plaintiffs have supplemented their allegations,
supplemented their by way
allegations, by of example,
way of with a
example, with
statement of specific
statement of specific facts
facts applicable to Plaintiff
applicable to Plaintiff John Steel. CAppoA,
John Steel. pp. 42-43)
(App. A, pp. 42-43) Since
Since the
Plaintiffs' facts are undisputed,

Plaintiffs' their standing to sue under the
undisputed, their the doctrine
doctrine of promissory
promissory estoppel
estoppel is
established.
established.
E. Even If the Filing of a "With Prejudice" Voluntary Dismissal of the Prior Lawsuit
Might, under Ordinary Circumstances, Have Provided a Basis for the College's
Assertion of
Assertion of the
the Defense of Res
Defense of the College
.Izdrcøf¿. the
.R¿s Judicata, Colleee Should Be Denied
Should Be Denied the
Opportunity to Avail Itself of Such a Defense in this Case Where the Undisputed
Facts Establish
Facts (A) That
Establish (A) That the
the Association's Executive Committee
Association's Executive IIad Not
Committee Had Not Been
Been
Authorized by the Alumni to Take Any Action Which Would Extinguish the
Association's or the Alumni's Legal Rights to Parity, (B) That the Association and
the Alumni Received Absolutely Nothin.g in. Return for the Executive Committee's
Dismissal of the
Dismissal of Prior Lawsuit
the Prior Lawsuit "With Preiudice," an.d
"With Prejudice," (C) That
and eC) That the
the College Itself
College Itself
Colluded with the
Colluded with the Association's
Executive Committee
Committee andand Orchestrated
Orchestrated the
Preparation and Filing of the "With Prejudice" Dismissal in Such a Manner That
Alumni'Would
the Alumni Would Not Find out about it until it Was
Was Too Late.
}
The College
The claims that
College claims that even
even if the Plaintiffs have
the Plaintiffs have standing to sue, the
standing to the Current
Current Lawsuit
Lawsuit
be dismissed
should be under the
dismissed under the doctrine
doctrine of res judicata on account
res judicata account of the
the filing of the
the stipulation
stþulation
in the Lawsuit dismissing

Prior Lawsuit
the Prior dismissing the
the Association's
Association's claims
claims "with prejudice." The
"with prejudice." The Plaintiffs
Plaintiffs claim
that the stipulation is not worthy

that worthy of res judicata recognition.
res judicata recognition.
Although voluntary
Although voluntary dismissals generally do
dismissals generally do qualify for such
qualif,i for such recognition,
recognition, exception
exception is
) made for cases

made "fraud, collusion
cases of "fraud, error." Merchants
collusion or error." Mutual Casualty
Merchants Mutual Casualt]¡ Co. v. Kiley,
Kile)¡, 92 N.H.
te On
19 On the
the other
other hand, when it comes
hand, when to the merits
comes to of a promissory
merits of promissory estoppel
estoppel claim,
claim, the
the claimant
claimant does
does not
not have
have to
prove that
prove that there
there was
\ilas a contract.
contract.
20 Note that
that the Plaintiffs claim
claim to
to be
20 Note the Plaintiffs be both
both direct promisees of and
promisees of and foreseeable
foreseeable third
third parties
parties who
who relied
relied upon
upon the
College's promise to seat
College's promise seat an equal
equal number Alumni Trustees to the number
number of Alumni number of Charter
Charter Trustees.
2l
21
323,327
323, (1943). For
327 (1943). For example, in Beliveau
example, in v. Amoskeag
Beliveau v. Amoskeaq Manufacturing Co., 68
Manufacturins Co., N.H. 225
68 N.H.
plaintiff attempted
(1894), a plaintiff
(1894), attempted to strike
strike a stipulation which
which had been
been entered
entered on the
the record by his
record by
attorney after
attorney after the plaintiff had
the plaintiff had discharged him as
discharged him his counsel.
as his counsel. The
The docket
docket had
had been
been marked
marked
for the
'Judgment for
"judgment plaintiff by
the plaintiff by agreement judgment satisfied."
agreement and judgment satisfied." Without
Without knowledge of the
knowledge of the
)
opposing
opposing attorney's
attorney's lack authoriry the
lack of authority, the defendant's
defendant's counsel
counsel had
had agreed to the
the settlement
settlement and
the defendant
the defendant had paid over
had paid over the
the agreed-upon
agreed-upon sum money. The
sum of money. plaintiffls counsel,
The plaintiff's counsel, however,
however,
promptly absconded
promptly with the
absconded with money. Noting
the money. that settlement
Noting that settlement agreements are conclusive
agreements are conclusive as
)
between
between the
the parties
parties "in the
the absence
absence of fraud or mistake,"
mistake," the
the Court plaintiff s motion
Court denied the plaintiffs motion
to set the
to stþulation aside because
the stipulation because the
the evidence
evidence established
established that
that the
the defendant's
defendant's attorney "acted
attorney "acted
in good
in good faith, without knowledge
faith, without or ...
knowledge or ... reason to suppose
reason to that [opposing
suppose that fopposing counsel]
counsel] was not the
was not the
plaintiffls attorney."
plaintiffs Id. at
attorney." Id. 226. Accord,
at 226. Accord, Hubley v. Goodwin,
Huble]¡ v. N.H. 200,
91 N.H.
Goodwin, 91 200, 203
203 (1940)
(1940)
(stþulation for
(stipulation for dismissal
dismissal executed by counsel
executed by without client
counsel without client authority is enforceable
authority is enforceable where
where no
or collusion"
"fraud or
"fraud collusion" and
a¡.d agreement
agreernent was
was entered into "in
entered into "in good faith"); Moore
good faith"); v. Lebanon,
Moore v. Lebanon, 96
N.H. at
N.H. at 22 (statng that
22 (stating that stipulations for dismissal
stipulations for in good
"made in
dismissal "made good faith" will be
faith" will be enforced).
Burtman v. Butman,
Burbman v. Buhan, 94 N.H. 412
94 N.H. (1947) (settlement
412 (1947) by attorneys
(settlement by in probate
attomeys in probate matters will be
matters will
'World Airwavs. Inc.,

enforced
enforced if "reasonable").
"reasonable"). See
See also,
also, Dunlop v. Pan
Dunlop v. Pan American
American World Airways, Inc. , 672
672 F.2d
F.2d
1044 (2nd Cir.,

1044 (2nd Clr., 1982) (under Federal
1982) (under Federal Rule of Civil
Rule of Civil Procedure
Procedure 60(b),
60(b), non-parties permitted to
non-parties permitted
modiff a stipulation
modify stþulation for dismissal
dismissal on equitable grounds); Guarantee
equitable grounds); Guarantee Trust & Safe-Deposit
Safe-Deposit Co. v.
Duluth & W.R.

Duluth \M.R. Co.,
Co. , 70 F.
F. 803 (D.C. Minn.,
803 (D.C. Minn., 1895) (pennitting intervention
1895) (permitting by shareholders
intervention by shareholders of a
corporate party who

who allege that the
the corporation
corporation and the
the other party to the
other party the suit are about to enter a
)
collusive consent
collusive consent decree
decree adverse to the
the shareholders'
shareholders' interests);
interests); Warner
Warner Company Sutton, 637
Companv v. Sutton,
A.2d 960
A.2d (N.J. Super.,
960 (N.J. Super., 1994)
1994) (also
(also allowing
allowing intervention
intervention to prevent collusive consent
prevent entry of collusive consent
decree). See
decree). See generally,
eensrall% RESTATEMENT (SECOND) OF JUDGMENTS,
RESTATEMENT (SECOND) JTIDGMENTS, §42,
$42, comment ("l\l
comment b ("[A]
)
22
judgment is
judgment is not
not binding
binding on the
the represented person where
represented person where it is the product
product of collusion between
between
the representative
representative and the opposing party ....").
party .... ").
In applying
In the foregoing
applying the to the
principles to
foregoing principles the case
case at
at bar,
bar, one
one should
should first
first note
note that
that the
Association's dismissal
Association's of the
dismissal of the Prior
Prior Lawsuit "with prejudice"
Lawsuit "with prejudice" was
was completely
completely gratuitous.
)
Indeed, there
Indeed, is simply
there is no good
simply no good reason why the
reason why the Association
Association did not
not take
take aa dismissal
dismissal "without
"without
prejudice."2l Suffice
prejudice.t''" it to
Suffice it to say that the
say that the Association
Association gave up something
gave up of value;
something of it had
value; it just
had just
received aa favorable
received favorable order from the
order from the Court
Court denying the College's
denying the College's motion to dismiss
motion to dismiss -- which
which
)
constituted at least
constituted least some indication that
some indication that the
the Association
Association had
had a valid
valid claim
claim and might
might win
win if the
case went to
case went trial. Yet
to trial. Yet it received
received absolutely
absolutely nothing
nothing in return
return for giving up
up its
its legal rights
rights to
22
) pursue its claims.
pursue its claims.22 Accordingly, to the
Accordingly, to the extent that the
extent that the stipulation is aa type
stþulation is of contract
type of contract and
contract rules
subject to contract rules of intcrpretation.f
interpretation,23 it should
should be
be deemed
deemed unenforceable
unenforceable because
because there was
consideration for the Association's

no consideration Association's relinquishment
relinquishment of the
the alumni's
alumni's rights.
.ights.
The second
The second reason Association's stipulation
reason that the Association's stipulation of dismissal with prejudice
prejudice should be
deemed ineffective to bar

deemed ineffective bar the
the Current Lawsuit is that
Current Lawsuit that it was
was a product
product of collusion
collusion and bad
bad faith.
ln this regard,
In regard, since it is the
the College which wishes
College which wishes to avail itself of the preclusive
preclusive effect that
that such
a stipulation might normally

stipulation might normally have,
have, one must
must focus primarily upon
focus primarily upon its actions.
actions. As the undisputed
undisputed
facts make clear,

facts make the College
clear, the not only
College not only colluded with the
colluded with the Association in dismissing
Association in dismissing the
the Prior
Prior
with prejudice;
Lawsuit with prejudice; it virtually
virrually commandeered
comm¿ldeered the
the entire
entire process.
process. For it was the
the College
College that
that
21 A
21 A dismissal without
dismissal without prejudice would
prejudice would have
have terminated
terminated the Prior Lawsuit,
the Prior Lawsuit, but
but would
would not
not have
have prevented
prevented the
Association (or anyone
Association anyone else having standing)
else having reinstituting it if negotiations
standing) from reinstituting negotiations with the
the College
College for aa restoration of
restoration of
parity ultimately
parity failed. li&.
ultimately failed. E.e.. Town Riddle, 143
Town of Plaistow v. Riddle, N.H. 307,
143 N.H. 309 (1996); RESTATEMENT
307,309 RESTATEMENT (SECOND)(SECOND)
oF JUDGMENTS,
OF JUDGMENTS, §20. $20.
22
22 Indeed, the College
Indeed, the College has yet to
has yet to answer
answer what Ms. Lawrence
what Ms. Lawrence dubbed
dubbed the
the most
most controversial
controversial question:
question: "why
"why [the
fthe
Executive Committee
Executive ofl the
Committee of] AoA, which
the AoA, which is only elected
elected for a year,
year, would
would file to withdraw
withdraw a suit
suif with prejudice
prejudice and
prevent future
prevent future executive
executive committees
committees from acting
acting differently?"
differently?" (App.
(App. A, p.
p. 102)
i02)
23
23 Israel
Israel v. Carpenter,
Carpenter, 120 F.3d 361, 366 (2d
720F.3d,361,366 Cir., 1997).
(2d,C11., IggT).
23
the Association's
selected the
selected Association's new
new counsel; it was
was the
the College
College that managed
managed the
the process;
process; and it was
the College that

the that even dictated the terms
terms of the
the stipulation.i"
stipulation.2a
Equally apparent
Equally is the
apparent is the College's
College's lack of good
lack of faith. As
good faith. As the
the notes
notes of Diana
Diana Pearson's
Pearson's
June 30, 2008

June 30, 2008 conversation with David
conversation with David Spalding
Spalding reveal, Mr. Spalding
reveal, Mr. Spalding knew well that
fulI well
knew full that a
cancellation of the
cancellation of the Agreement require aa two-thirds
would require
Agreement would two-thirds vote of the
vote of alumni. Obviously
the alumni. Obviously
referring to the recent

referring reient Executive
Executive Committee
Committee election,
election, he is reported to have "lT]o change A
have said, "[T]o
A rules/constitution
oo A rules/constitution -- as
as 1891
1891 agreement
agreement calls for 2/3
calls for 2/3 majority alumni. This
all alumni.
majonty of all This one
one got
, ))
60%." p. 127).
(App. A, p.
60yu" CAppoA, 727). The point is
The point is that
that the
the College
College understood
understood that if the
that if the dismissal with
dismissal with
prejudice were
prejudice were effective to extinguish
effective to extinguish the
the alumni's to parity,25
alumni's right to panty,25 the
the act
act of the
the Association's
Association's
new Executive
new Executive Committee in agreeing
Committee in to such
agreeing to such aa thing
thing was
was beyond
beyond the
the scope
scope of its
its authority."
authoity.'u
That, of course,
That, precisely why the
course, is precisely the college
college orchestrated public relations
orchestrated a public relations campaign
campaign designed
designed to
keep
keep the terms
terms of the stipulation secret.
The final reason

The final that the
reason that the Association's stþulation of dismissal
Association's stipulation dismissal with
with prejudice
prejudice should
should be
deemed ineffective to bar

deemed ineffective bar the
the Current Lawsuit is that
Current Lawsuit that its execution
execution was without
without proper
proper authority.
As those
As who were
those who involved in the
were involved the crafting
crafting and filing of the
and filing the stipulation well understood,
understood, in the
event that it were

event that were enforced, the stipulation
enforced, the would be
stipulation would be tantamount to aa cancellation
tantamount to of the
cancellation of the 1891
1891
'o This
24 is aa case
This is of the
case of nominally subservient
the nominally body -- the
subservient body the College's
College's administration
administration -- actually
actually manipulating
manipulating and
controlling the
controlling the process by which
process by which the
the rights of alumni
rights of alumni werewere terminated
tennitated byby aa procedural
procedural maneuver
maneuver without
without any
determination on
determination on the merits. This
the merits. This demonstrates,
demonstrates, in in aa dramatic
dramatic way,
way, the
the accuracy
accuracy of of the
the observation
observation made
made inin the
amicus brief, that
amicus brief, that there
there has been aa modem
has been trend whereby
modem trend po'trer in
whereby power in academic
academic institutions
institutions has
has been
been allowed
allowed to
devolve onto
devolve onto the
the administration
administration because
because ofof aa relinquishment
relinquishment by by boards
boards of of trustees
trustees of of their
their fiduciary
fiduciary duties of
duties of
independent
independent governance.
governance.
2s
25 And, as
And; Ms. Pearson's
as Ms. Pearson's notes
notes reflect, is precisely
this is
reflect, this precisely what Mr. Spalding
what Mr. Spalding and M¡. Mathias
and Mr. Mathias were
were hoping
hoping to
accomplish: "1891
accomplish: "1891 dead
dead forever." (App.A,
forever." (App. p. 125).
A, p. I25).
26
'6 At one
At point in
on" point in their
their discussions
discussions about
about what form the
what form the dismissal
dismissal of the
the Prior Lawsuit should
Prior'Lawsuit take, Attorney
should take, Hilliard sent
Attorney Hilliard sent an
email to
email to counsel
counsel forfor the
the College
College and Mr. Mathias
and Mr. Mathias in in which
which hehe suggested
suggested that "in order
that "in order to have all options
have all options on
on the
the table",
table", they
might want
might to consider
want to consider aa so-called
so-called "neither par$' docket
"neither party" marking together
docket marking together with
with the
the execution
execution ofof aaìelease
release "on
"on behalf
behalf of the
the
Association, its successors
Association, successors andand its past,
past, current,
current, and
and future
future directors,
directors, officers,
oflìcers, and members."
members." (App.
(App. A, p.p. 94) The record
record does notnot
contain any
contain written response
any written response to to this
this suggestion from the
suggestion from the College
College oror from Mr. Mathias,
from Mr. Mathias, but one can
but õne can safely
safely assume
assume that
that they
they
rejected it because
rejected because they knewknew that
that the
the execution
execution by the Association's Executive
Committee of a release
release which
which would
would actually
ac.+lnlly say
say
that the
that the alumni
alumni were
were forever gìving up
forever giving their legal
up their rights under
legal rights under the
the 1891
1891 Agreement
Agreement and
and would
would actually
actually say
say that
that the
the Executive
Executive
Committee purported to be
Committee purported be authorized
autho¡ized to take
take such action in the
such action alumni's behalf would
the alumni's would be tantamount
tantamount to waving
waving a red
red flag.
flag.
24
)
Agreement. It is the position of the Plaintiffs
Agreement. Plaintiffs that no cancellation
cancellation by the Association
Association of the
the 1891
1891
Agreement could be
Agreement be effected without
without a vote
vote of its members."
members.2?
Association's constitution
Although the Association's constitution does not expressly mention
mention the
the 1891 Agreement,
Agreement,
it clearly
it clearly presupposes its existence.
presupposes its (App. B, pp.
existence. (App. pp. 95-98)
95-98) Therefore,
Therefore, it is
is the
the Plaintiffs'
Plaintiffs' further
further
contention that aa cancellation

contention that of the
1891 Agreement would amount
Agreement would to an
amount to an amendment of the
amendment of
Association's constitution. And,

Association's constitution. like aa cancellation
And, like of the
1891 Agreement,
Agreement, changes in the
changes in
Association's constitution
Association's constitution may
may only be
be effected by a vote
vote of the Association's
Association's members.f
memberc.28
Despite prior admissions

Despite prior to the
admissions to the contrary by Mr.
contrary by Mr. Mathias Mr. Spalding,
Mathias and Mr. Spalding, the
the College
College
will presumably
will presumably argue that the
argue that the Executive
Executive Committee did not
Committee did not need
need aa vote
vote of the
the Association's
Association's
) members to dismiss the

members Prior Lawsuit
the Prior with prejudice.
Lawsuit with prejudice. It is important
imFortant to understand
understand the following
the following
implication of such
implication proposition: if the
such a proposition: the Executive
Executive Committee
Committee had
had the
the unilateral
unilateral power to give
power to
up the
up alumni's right to equal
the alumni's equal representation
representation on the
the College's
College's Board
Board of Trustees, it also had the
Trustees, it
unilateral to give
power to
unilateral power give up the alumni's
up the right to
alumni's right any representation
to any lepresentation on the Board. Since
the Board. Since the
primary (and
Association's primary
Association's (and some would contend,
some would its only)
contend, its only) reason for being
reason for being is to conduct
is to
)
for the
elections for
elections Alumni Trustee
the Alumni Trustee seats
seats guaranteed by the
guaranteed by the 1891
1891 Agreement, if the
Agreement, if the Executive
Executive
Committee could,
Committee could, on its own,
on its give up
completely give
o\Mn, completely up the
the alumni's right to
alumni's right to representation
representation on
on the
Board, it could
Board, could essentially
essentiallyput
put the
the Association
Association out
out of business.
business. For
For the
the College to even
College to even suggest
such
such an untenable proposition ought
untenable proposition ought to be
be sufficient
sufficient for this Court to reject
reject it.
27 Not" that
" Note the 1891
that the Agreement was
1891 Agreement originally adopted
was originally by the
adopted by the Association
Association through
through aa vote
vote of its
its members. (App. A,
members. (App. p. 166)
A, p.
) Likewise, over
Likewise, over the when changes
years, when
the years, changes have
have been
been made to the
made to the procedures to be
procedures to be used by the
used by the Association
Association for
for the
the election of
election of
Alumni Trustees,
Alumni Trustees, these
these changes
changes have
have always
always been
been adopted by its members.
adopted by members.
" Suffice
28 to say
SufFrce it to that no
say that vote of
no vote of the alumni has
the alumni ever been
has ever been taken
taken toto cancel the 1891
cancel the Agreement. Moreover,
1891 Agreement. Moreover, as noted
noted
previousl¡ even
previously, the only
even the poll that
only poll that was ever taken
was ever on the
taken on pure concept
the pure concept of parity, the
of parity, poll taken
the poll by the
taken by the former
former Executive
Executive
Comrnittee before
Committee filed the
before it filed Prior Lawsuit,
the Prior Lawsuit, resulted in an
resulted in an overwhelming
overwhelmingvole infavor
vote in favor of parity. See
of parity. See footnote ante.Tlre
3, ante.
footnote 3, The
College, of course,
College, point to the
course, will point alumni's election
the alumni's election of the Unity Slate
the Unity Slate in the
the face of the
face of the latter's
latter's campaign
campaign pledge
pledge to dismiss
dismiss the
the
Prior Lawsuit.
Prior Lawsuit. However,
However, asas Mr. Mathias
Mathias and Mr. Spalding
and Mr. Spalding have
have attested
attested to,
to, that vote was
was "fought
"fought over lawsuit parity." See p.
lawsuit not parity."
11,
77, ante.
ante.
25
According to the
According to New Hampshire
the New Hampshire Supreme Court, "[R]es
Supreme Court, judicata bars
"[R]es judicata of
relitigation of
bars relitigation
issues between parties absent

between parties absent some circumstønce. "" Indian Head Nat. Bank of Derry
some extenuating circumstance. Derr.y
v. Simonsen,
v. Simonsen, 115 N. H. 282,
N. H. 282,284 (1975) (emphasis
284 (1975) supplied). Applying
(emphasis supplied). Applying the
the teachings
teachings of such
as Beliveau,
cases as
cases Hubley and
Beliveau, Hubley and Moore, this Court
Moore, this Court should (1) find
should (1) find that
that there
there are
are indeed
extenuating circumstances
extenuating this case,
circumstances in this (2) strip
case, (2) strip the stþulation of its
the stipulation its presumption
presumption of regularity
regularity
and (3) grant

and (3) the stipulation
grant the stipulation absolutely no res
absolutely no judicata effect
res judicata effect upon the Current
upon the Current Lawsuit.
Accordingl¡ the
Accordingly, Court should
the Court should rule that the Plaintiffs bared by the
Plaintiffs are not barred the dismissal of the Prior
Prior
Lawsuit from bringing

Lawsuit bringing the
the Current
Current Lawsuit,
Lawsuit, either as members
either as members of the Association, as third-
the Association,
party beneficiaries
beneficiaries or as parties who have
have standing to bring
bring claims
claims in promissory
F.
F. The Judiciary Should Not Be Barred by the So-called Bricker Doctrine from
Inquiring into the Irregularities Surrounding the Preparation and Filing of the
66With Prejudice"
"With Preiudice" Dismissal of the
Dismissal of Prior Lawsuit
the Prior 'Where the
Lawsuit Where the Actions of the
Actions of
Association's Executive Committee
Committee in 'Withdrawing
in Withdrawing the the Prior
Prior Lawsuit
Lawsuit with
Prejudice Did Not Involve Some Mere Policy Dispute over the Association's
) Internal Affairs, but Instead Arguably Effected a Relinquishment of Important
Legal Rights of the Association and its Members Vis-a-Vis an Outside Third Party,
i.e., the College, and Where the Party Attempting to Claim the Benefit of the
Bricker Doctrine
Bricker Doctrine Is Not the Association,
Association. but Is Instead
Instead the College.
College.
)
The College
The will undoubtedly
College will undoubtedly respond
respond to the Plaintiffs' contention
the Plaintiffs' contention that this
this Court should
should
not judìcata effect

not give res judicata effect to the
the stipulation because
because of its aforementioned
aforementioned flaws by arguing
arguing that
that
the Court is barred

the looking behind
barred from looking behind the
the stipulation by the
the so-called
so-called Bricker
Bricker doctrine.
doctrine. This is
the proposition that

the proposition that courts will generally
courts will not interfere
generally not in the
interfere in internal affairs
the internal affairs of unincorporated
unincorporated
Bricker v. New
associations. Bricker
associations. New Hampshire Medical Society,
Hampshire Medical N.H. 469
Societ% 110 N.H. 469 (1970).
with, the
begin with,
To begin the College no standing to raise
College has no this issue.
raise this issue. The
The Association
Association is not a
party to
party to the
the Current Lawsuit and
Cunent Lawsuit the College
and the College has no authority
has no to assert
authority to assert the
the Association's
Association's legal
rights. Compare,
rights. Compare, Brzica v. Trustees
Brzica v. of Dartmouth
Trustees of Dartmouth College,
Colleqe, 147 N.H. 443
147 N.H. 443 (2002) (where the
Q002) (where
Association
Association was
was aaparty).
party).
26
More
More important,
important, the Bricker doctrine
the Bricker is not
doctrine is not aa bar judicial scrutiny of the
bar to judicial the stipulation
stipulation
because
because it does not apply
does not apply in cases involving "injustice
cases involving "injustice or illegal action." Bricker
illegal action." Bricker supra at 470;
supra at 470;
Brzica,
Brzica, supra
supra at 456. The
at 456. The fact that the stþulation was
the stipulation ultra vires,
was ultra vires, was without
without consideration
consideration and
was aa product
was of collusion
product of collusion with the College
with the qualifies as
certainly qualifies
College certainly "injustice" to
sufficient "injustice"
as sufficient
)
eliminate
eliminate the
the immunity judicial scrutiny which
immunity from judicial which the Bricker doctrine
the Bricker might otherwise
doctrine might have
otherwise have
afforded
afforded the stipulation.
stipulation. _
-
Finall¡ the Plaintiffs

Finally, Plaintiffs respectfully
respectfully suggest that the
the Bricker
Bricker court's
court's reference voluntary
reference to a voluntary
association's qualified immunity

association's qualified immunity from judicial oversight
from judicial for its
oversight for its "internal affairs" was
"internal affairs" never
\Mas never
meant to extend
meant to to actions
extend to actions taken by an
taken by an association which materially
association which materially and
and adversely affect the
adversely affect the
legal rights
legal of the
rights of the association's
association's members vis-à-vis outside
members vis-a-vis parties. This
outside parties. is illustrated
This is by the
illustrated by the
Bricker case
Bricker itself. The
case itself. The complaint by the
complaint by plaintiff in
the plaintiff in that
that case
case concerned the action
concerned the of the
action of the
governing
goveming body
body of the New
New Hampshire
Hampshire Medical
Medical Society,
Society, of which plaintiff was
which the plaintiff member, in
v/as a member,
using the services

using the of aa particular
services of particular law firm which
law firm which sometimes
sometimes experienced
experienced conflicts of interest
conflicts of interest
.between
between its representation
representation of the
the Society
Society and its representation
representation of other clients.
clients. In refusing
refusing to get
involved
involved in such
such a dispute,
dispute, the
the Supreme
Supreme Court
Court expressly
expressly noted
noted that plaintiff does not
that "the plaintiff not claim
claim
)
the society
that the
that society or its attorney
or its attorney has
has inflicted or threatened
inflicted or to inflict
threatened to inflict any
any specific existing or
specific existing
reasonably
reasonably anticipated
anticipated damage
darnage to himself
himself as physician or
as a physician or as a member New Hampshire
msmber of the New Hampshire
) Medical
Medical Society."
Society." Bricker
Bricker v. New
New Hampshire Medical Society,
Hampshire Medical N.H. 469,470
Society. 110 N.H. (1970). In
469, 470 (1970).
other
other words,
words, the
the dispute
dispute between
between the
the parties
parties was
was more
more in the
the nature
nature of a general policy dispute
general policy dispute
than
than a dispute
dispute over
over anyone's rights. This
anyone's legal rights. This is quite unlike
unlike the
the case atbar
case at bar. The
The fact that the
that the
Association's
Executive Committee
Committee entered into a stipulation
entered into stipulation with purports to
with the College which purports
completely
completely and
and forever
forever bar
bar the
the Association
Association and
and its members from enforcing
members from their contract
enforcing their with
contract with
the
the College
College (the
(the implementation
implementation of which
which is the primary business
the primary business of the
the Association) hardly
Association) is hardly
27
something which pertains
something which to only
pertains to only the Association's "internal"Z9
the Association's affairs. Compare,
"internult'2e affairs. Compa¡e, Brzica
Brzica v.
) Trustees of Dartmouth
Trustees Dartmouth College, N.H. 443,
College, 147 N.H. 443, 456 (2002) (challenge
456 (2002) to a modification
(challenge to modification of the
the
Association's process
Association's for selecting
process for Alumni Trustees
selecting Alumni is not
Trustees is judicially cognizable
not judicially cognizable because it is
because it
merely a dispute
merely dispute over voluntary association's
over a voluntary association's "internal
"internal governance
governance procedures").
It is
It is especially
especially inappropriate to decline
inappropriate to inquiry into
decline inquiry into the
the circumstances
circumstances surrounding
surrounding the
the
actions of the
actions Association's Executive
the Association's Committee in the
Executive Committee the context
context of the
the College's
College's reliance
reliance upon
upon
actions to impose
those actions
those impose the bar judicata, a doctrine
bar of res judicata, doctrine which
which in New
New Hampshire
Hampshire specifically
specifically
)
implicates equitable
implicates considerations. As recently
equitable considerations. recently as last
last summer, in a case in which
which the
the interests
interests
parties to the
of the parties the action
action at bar were
were admittedly represented
represented by party to an earlier
by a party earlier action
action and
the formal
where all of the
where formal conditions
conditions for the
the application judicata were
application of res judicata were satisfied,
satisfied, this
this Court
nevertheless declined
nevertheless declined to apply res judicata "because
res judicata "because of the potential impact ...
potential adverse impact . . . on the
the ...
...
interests of persons
interests persons not
not themselves parties in the
themselves parties initial action."
the initial In re:
action." In re: Zachary, _ N.H.
Zachary, __ _, ,
N.H. __
_ (July 31,
(July 31, 2009) holdin g that
2009) (also holding that the
the burden proof with
burden of proof with respect
respect to the
the application
application of res
-
judicata is
is upon it). See
judicata upon the party asserting
the party asserting it). also, State
See also, State of NH v. Charpentier,
NH v. N.H. 56,
Charpentier, 126 N.H. 6l
56, 61
(1985); RESTATEMENT
(1985); RESTATEMENT (SECOND) OF JUDGMENTS
ruDGMENTS §28(5).
$28(5). Suffice itto
Sufñce it to say that invocation
saythat invocation
of the Bricker doctrine

the Bricker dockine to preclude judicial investigation
preclude aa judicial investigation into the propriety
propriety of the
the stipulation
stipulation in
question has
question than aa mere
more than
has more 'þotential adverse
mere "potential effect" upon
adverse effect" upon important
important interests of the
interests of
Plaintiffs and
Plaintiffs the other
and the other alumni; it completely
alumni; it completely extinguishes thsm. It isis respectfully
extinguishes them. respectfully suggested
suggested
that the
that Bricker doctrine
the Bricker doctrine was
was never
never meant to require
meant to require the judiciary to
the judiciary to sit
sit on the
the sidelines
sidelines under
under
circumstances
circumstances such
such as these.
)
And, finally,
And, finally, whatever may be
whatever may the merits
be the of the
merits of the College's
College's assertion of the
assertion of the Bricker
Bricker
doctrine with respect

doctrine with respect to the Plaintiffs' claims
the Plaintiffs' claims as members
members of the Association,
Association, the issue
issue is entirely
entirely
29
'9 Not" that
Note that the
the Association itself has
Association itself not moved
has not moved toto intervene
intervene as
as a party in this
party in case. The
this case. The probable
probable reason
reason for
for this
this is that
that the
the
Plaintiffs are
Plaintiffs not asking
are not for any relief
asking for relief which
which would
would require
require the
the Association
Association toto do anything
anything or
oi not
not to do
do anything.
anything. In that
fhat sense,
sense,
therefore, the
therefore, Plaintiffs are not
the Plaintiffs interferingin
not interfering in any of the Association's
ofthe Association's affairs,
affairs, internal or otherwise.
internal-or otñerwise.
28
irrelevant to the
irrelevant Plaintiffs' independent
the Plaintiffs' independent claims
claims as third-party beneficiaries
beneficiaries and as
as parties
parties entitled
principles of promissory
to recover under principles promissory estoppel.
estoppel. Since these
these claims
claims are ones which
which cannot be
bè
involuntarily taken
involuntarily from them
taken from by the
them by the Association's
Executive Committee
Committee or
or even
even by
by a vote of
vote of
the alumni,
the alumni, the
the validity of the
validity of the stipulation or the
stipulation or the question of whether
question of whether the
the Bricker
Bricker doctrine
doctrine
insulates judicial scrutiny simply has nothing to do with

insulates the stipulation from judicial with the Plaintiffs'
Plaintiffs' rights
pursue these particular

to pursue particular claims.
G.
G. Where the Undisputed Facts Establish (Al That the Plaintiffs Had No Personal
)
Involvement in the Prior Lawsuit, (B) That, as of the Time of the Filing of the
Plaintiffs' Lawsuit, the Plaintiffs' Third-Party BenefiCiary Rights Could Not Be
Extinguished Because Their Rights Bad Vested, and (e) in Any Case, That Neither
the Plaintiffs Personally Nor the Alumni in General Had Taken Any Action or
Authorized the Executive Committee of the Association to Take Any Action to
) Extinguish the Association's or tbe Alumni's Legal Rights to Parity, Such
Undisputed Facts Compel a Ruling in this Case That the Plaintiffs' Third-Party
&lBefretl
Beneficiary Claims Are Not Barred bybv Res
Res Judicata.
Judìcøta.
The doctrine
The doctrine of res judicatabars
res judicata re-litigation of the
bars the re-litigation the same cause
cause of action
action by the
the same
parties or those
parties with them
those in privity with them where
where the
the earlier
earlier litigation was terminated
tenninated by judgment on
by aa judgment
the merits. Brzica

the merits. v. Trustees
Brzica v. Dartmouth College,
Trustees of Dartmouth N.H. 443,
Collese, 147 N.H. (2002). The
454 (2002).
443,454 The problem
problem
for the
for the College, of course,
College, of is that
coutse, is that the
the parties in the
parties in the Current
Current Lawsuit
Lawsuit are
are not
not the
the same
same as
as the
parties in the Prior

parties Lawsuit. Accordingly,
Prior Lawsuit. Accordingly, to apply the
the doctrine
doctrine of res judicata,Ihe
res judicata, the College
College must
must
establish in'þrivity''with
Plaintiffs were in
establish that the Plaintiffs "privity" with the Association
Association in the Prior
Prior Lawsuit.
Under general
Under general rules privity, a non-party
rules of privity, non-party to an earlier
earlier suit may
may be barred
bared from bringing
bringing
second suit where he/she

a second personally involved
helshe was personally involved in the
the earlier
earlier suit in such
such aa fashion
fashion as
as to have
have
been in control of the

been litigation. In this
the litigation. this case,
case, the undisputed
undisputed facts
facts establish
establish that
that the
the Plaintiffs
Plaintiffs had
no involvement
no involverrent whatsoever in the
whatsoever in Prior Lawsuit.
the Prior Lawsuit. Accordingly,
Accordingly, the
the general
general rule
rule has
has no
no bearing
bearing
Plaintifß' rights to proceed

upon the Plaintiffs'
upon proceed with
with the
the Current
Current Lawsuit.
Lawsuit. 30
30
30
30 Nevertheless, in its Motion
Ne'¿ertheless, in for Summary
Judgment below,
below, the
the College
College argued
argued that
that the
the Plaintiffs
Plaintiffs should
should be
be deemed
deemed toto be
be in
functional privity with the Association
functional privity Association inin the Prior Lawsuit
the Prior Lawsuit and
and thus barred hom
thus barred from proceeding
proceeding withwith the
the Current
Cur¡ent Lawsuit
Lawsuit by
by the
the
^the
judicata effect
asserted res judicata
asserted effect of the stþulation. The
the stipulation. The College's
College's claim
claim was
was based
based upon
upon the
the fact
fact that
thãt an
an entity
entity known
known asas The Hanover
Hanover
29
However, when
However, when it comes third-party beneficiaries
comes to third-party beneficiaries of a contract,
contract, the RESTATEMENT
RESTATEMENT
prescribes aa special
prescribes rule as
special rule to when
as to when such parties are
such parties are deemed to be
deemed to be in privity with
in privity with aa contract
contract
promisee for purposes

promisee for purposes of judicata. In
of res judicata. In this
this regard, the RESTATEMENT
rcgard, the (SECOND) OF
JUDGMENTS, §56(1)
JUDGMENTS, provides as follows:
$56(1) provides
When a contract between

When between two persons
persons creates
creates an obligation
obligation in favor
favor of another
another person
person as
beneficiary ...
an intended beneficiary judgment
,.. a judgment for or
or against
against the
the promisee
promisee in an
an action
action between
between
him and the promisor
him promisor does preclude an action
does not preclude action by the
the beneficiary
beneficiary on the
the obligation to
him unless
him unless at the time
at the of the
time of judgment was
the judgment was rendered the promisee
rendered the promisee had
had the power to
the power
discharge
discharge the obligation.
Applytng this
Applying this rule to the
rule to the case at bar,
case at bar, unless at the
unless at time that
the time that the Prior Lawsuit
the Prior Lawsuit was
dismissed, Association - the

dismissed, the Association promisee under
the promisee the 1891 Agreement
under the Agreement - had the power off
power to cut off
) the rights
the of individual
rights of alumni -- the
individual alumni the third-party
beneficiaries under
under the Agreement -- the
the Agreement
dismissal of the
dismissal of Prior Lawsuit
the Prior Lawsuit has
has no judicata effect
no res judicata effect upon
upon the
the rights of the
rights of Plaintiffs to
the Plaintiffs
proceed with the Current

proceed Lawsuit. To determine whether
Current Lawsuit. whether the Association
Association had such
such aa power,
power, one
must refer
must refer back to the'
back to the rules goveming contracts
rules governing contracts and the rights
and the of third-party
rights of third-party beneficiaries.
beneficiaries.
RESTATEMENT (SECOND) OF JUDGMENTS,

RESTATEMENT TDGMENTS, §56(1),
$56(1), comment
comment a.
a.
RESTATEMENT OF CONTRACTS
(SECOND) OF CONTRACTS §311(3) that aa contract
provides that
$311(3) provides
promisee has
promisee has no power to cut
power to cut off the rights of a third-party
the rights third-party beneficiary
beneficiary after
after "the beneficiary
beneficiary ...
...
Institute (the
Institute (the "Institute")
"Institute") financed both the
financed both P¡ior Lawsuit
the Prior Lawzuit and
and thethe Current
Current Lawsuit.
Lawsuit. The
The Institute
Institute isis a New
New Hampshire
Hampshire not-for-
not-for-
) profit corporation
profit corporation founded
founded in n 2002
2002 whose
whose mission, in part,
mission, in is "to
part, is "to support,
support, encourage
encourage and and facilitate
facilitate the full, fair
the full, fair and
and informed
info¡med
participation by
participation by the
the alumni
alumni of Dartmouth
Dartmouth College in the
College in govemance of Dartmouth
the governance Dartrnouth College
College and
and thethe nomination
nomination and and election of
election of
alumni trustees
alumni trustees ofof Dartmouth
Darlmouth College;
College;..."(App.
... "(App. A,A,p. 132) None
p. 132) None of of the
the Plaintiffs
Plaintiffs are
are members,
members, directors
directors oror officers
ofEcers of of The
Hanover Institute. (App.
Hanover Institute. (App. B,B, Dartmouth
Darhnouth Ex. BB through
Ex. BB HH, pp.
through HH, pp. 310-337,
3|1-331,Interrogatories
Interrogatories #2 #2 & Ð Moreover,
e. 4) Moreover, the the undisputed
undisputed
facts establish
facts establish that except
except for the oflegal fees,
payment oflegal
the payment fees, the Institute
Institute played
played no role
role in the
the Prior
Prior Lawsuit. Accordingl¡ even
Lawsuit. Accordingly, ifthe
even if the
actions of the
actions thé Institute
Institute could
could somehow
somehow be be imputed
imputed to the Plaintiffs, since
the Plaintiffs, since the
the determinant
determinant of functional privity is
functional privity is whether
whether the
the
non-party who
non-party who is alleged
alleged to be privity with
be in privity party in the
with a party the first
fi¡st suit
suit was
was in control
control of that
that suit,
suit, it is clear
clear that
that the
the doctrine
doctrine does
not apply
not apply inin this
this case. Daigle v.
case. Daigle v. Portsmouth,
Poitsmouth, 129 N.H.N.H. 561,
561,571 (citing and
(1987) (citing
571 (1987) a¡rd summarizing
summarizing RESTATEMENT
RESTATEMENT (SECOND) (SECOND)
OF JUDGMENTS,
OF JTIDGMENTS, §39 $39 as follows: "A person
as follows: person who
who controls,
controls, or who
who substantially
substantially participates
participates in controlling,
controlling, the
the presentation
presentation on
party is bound
behalf of a party
behalf bound by thethe determination
determination of the
the issue
issue decided,
decided, as though
though he wen,
wèrç himself
himself aa party.")
parry.")
In addition,
In addition, even
even if the Plaintiffs could
the Plaintiffs be deemed
could be deemed to to be in functional
be in privity with
functional privity with the
the Association
Association in in the
the Prior
Prior Lawsuit,
Lawzuit, the
the
doctrine at issue
doctrine would be
issue would collateral estoppel,
be collateral estoppel, not
not res judícata. RESTATEMENT
res judicata. RESTATEMENT (SECOND) (SECOND) OF JUDGMENTS
JTIDGMENTS §39; $39; Tsiatsios
Tsiatsios v.
Tsiatsios, N.H. 438,
Tsiatsios. 144 N.H. 438,441-443 (1999); Aranson
441-443 (1999); A¡anson v.v. Schroeder, N.H. 359,
Schroeder, 140 N.H. 368-9 (1995);
359,368-9 (1995); Daigle
Daiele v.
v. Portsmouth,
Portsmouth, supra;
supra; see
RESTATEMENT (SECOND) OF JUDGMENTS, §59(3).
OF JUDGMENTS, $59(3). The problem for the
problern for the College is that
College is that nothing
nothing was
was resolved
resolved in the Prior
the Prior
Lawsuit. As stated
Lawsuit. stated in comment RESTATEMENT (SECOND)
comment e to RESTATEMENT (SECOND) OF JUDGMENTS §27,
OF JUDGMENTS $27, "In
"In the
the case judgment entered by
case of aa judgment by
"fcoilateral
confession, consent,
confession, or default,
consent, or default, none of the
none of the issues
issues isis'actually litigated. Therefore,
actually litigated. estoppell äoei
Therefore, [collateral estoppel] not apply
does not apply with
witÍr
respect
respect to any issue in a subsequent action." Accord,
subsequent action." Accord, Waters
Waters v. Hedberg,
Hedbe¡g, 126 N.H.N.H. 546, 549 (1985).
546,549
30
materially changes
materially position in
his position
changes his justifiable reliance
in justifiable the promise
on the
reliance on or brings
promise or suit on
brings suit it or
on it
manifests
manifests assent to itit at the
assent to the request
request of the
the promisor promisee." As
promisor or promisee." As noted
noted before, all of the
before, all the
Plaintiffs claim
Plaintiffs claim that
that they
they have
have taken
taken actions in reliance
actions in reliance upon the 1891
upon the 1891 Agreement
Agreement and
and these
these
allegations are documented

documented by Way
way of example
exa:nple with respect PlaintiffJohn
respect to Plaintiff Steel. There are no
John Steel.
facts of record to the contrary. Accordingly,

the contrary. Accordingly, regardless possible efficacy ofthe
regardless of the possible of the stipulation
to bar
bar future
future claims by the
claims by the Association itself, since the
Association itself, Plaintifß' third-party
the Plaintiffs' third-party beneficiary
beneficiary rights
were
were vested in the
vested in the manner
manner prescribed by the
prescribed by the RESTATEMENT,
RESTATEMENT, their
their third-party
beneficiary
claims
claims survive Association's dismissal
survive the Association's Prior Lawsuit
dismissal of the Prior prejudice.
Lawsuit with prejudice.
Moreover,
Moreover, even
even if the Plaintiffs' third-party
the Plaintiffs' third-party beneficiary
beneficiary rights had not vested
vested by the time
the time
the
the stipulation was filed, the
was filed, the other
other reason
reason that
that the
the Association's
Executive Committee not -
Committee did not-
in the
the words
words of the
the RESTATEMENT $56(1) -- have
RESTATEMENT §56(1) have the
the "power to discharge
"power to discharge the
the obligation" of
obligation" of
the College
the because, as
was because,
College was as argued above, the
argued above, the alumni had never
alumni had never voted to authorize
voted to the
authorize the
stipulation or to otherwise
otherwise relinquish
relinquish the Association's
Association's or their parity. Accordingly,
their rights to parity. Accordingly, for
this reason
this well, the
as well,
reason as the Plaintiffs'
Plaintiffs' third-party beneficiary claims
third-party beneficiary claims survive the Association's
survive the Association's
dismissal
Prior Lawsuit prejudice.
Lawsuit with prejudice.
)
H. Where the Undisputed Facts Establish (A) That the Plaintiffs Had No Personal
Involvement in the Prior Lawsuit, (B) That, as of the Time of the Filing of the
Plaintiffs' Lawsuit, the Plaintiffs' Rights to Bring Claims in Promissory Estoppel
Could Not Be Extinguished Because Their Rights Had Vested, and (e) in Any Case,
That Neither the Plaintiffs Personally Nor the Alumni in General Had Taken Anv
Action or
Action or Authorized
Authorized the
the Executive Committee of
Executive Committee of the
the Association
Association toto Take
Take Any
Anv
Action to Extinguish the Association's or the Alumni's Legal Rights to Parity, Such
Undisputed Facts Compel
Undisputed Facts Ruling in
Compel aa Ruling in this
this Case That the
Case That Plaintiffs' Claims Based
the Plaintiffs' Based
upon Promissorv Estoppel
upon Promissory Estoppel Are Not Barred by
À[al Barred bv Res
R¿s Judicata.
.,/zdrc¿l¿.
Plaintiffs suggest
Plaintiffs suggest that
that the
the effect judicata upon
effect of res judicata vpon their
their independent
independent claims
claims under the
under the
theory
theory of promissory
promissory estoppel
estoppel should properly be
should properly be governed by the
governed by the same principles as
same principles as apply to
their third-party
beneficiary claims.
claims. First, the undisputed
undisputed facts
facts establish Plaintiffs had no
establish that the Plaintiffs
)
31
31
personal
personal involvement
involvement in the
the Prior Lawsuit. Second,
Prior Lawsuit. Second, because
because of their
their actions
actions taken reliance
taken in reliance
upon
upon the
the College's
College's promise parit¡ the Plaintiffs'
promise of parity, Plaintiffs' rights
rights to bring promissory estoppel
bring claims in promissory estoppel
should be
be deemed
deemed to be
be vested
vested and therefore
therefore immune
immune from divestiture by the
divestiture by the College's the
College's and the
Association's
Association's execution
execution and filing of the stipulation. And,
the stipulation. finally, regardless
And, finally, regardless of whether their
whether their
rights had become

become vested,
vested, neither
neither the
the Plaintiffs individually nor the
Plaintiffs individually alumni collectively
the alumni had ever
collectively had
given the Executive

given the Executive Committee
Committee of the
the Association the authority
Association the to dismiss
authority to the Prior
dismiss the Lawsuit
Prior Lawsuit
with
with prejudice
prejudice or to otherwise
otherwise relinquish
relinquish the Association's parity and, therefore,
Association's or their rights to parity therefore,
)
the
the dismissal
dismissal should be ineffective as a res judicata bar to their promissory
res judicata promissory estoppel claims.
estoppel claims.
L
I. Where the Undisputed Facts Establish (A) That the Plaintiffs Had No Personal
Involvement in the Prior Lawsuit, (B) That Both the Association and the Plaintiffs,
as Individual Members Thereof, Have Standing to Sue to Enforce the 1891
Agreement, and (C) in Any Case, That Neither the Plaintiffs Personally Nor the
Alumni in General Had Taken Any Action or Authorized the Executive Committee
of the Association to Take Any Action to Extinguish the Association's or the
Alumni's Legal Rights to Parity, Such Undisputed Facts Compel a Ruling in this
Case
Case That
That the Plaintiffs' Claims
the Plaintiffs' Members of the
Claims as Members N¿l Barred
the Association Are Not bv
Barred by
Res Judicøta.
Res Judicata.
As noted
noted above,
above, the Plaintiffs position that
Plaintiffs take the position that the
the filing of the dismissal of the
the dismissal Prior
the Prior
Lawsuit
Lawsuit with
with prejudice
prejudice was
was ultra
ultra vires
vires as to the Association itself because
the Association not authorized
because it was not authorized
by aa vote
by of the
vote of the Association's members. Accordingly,
Association's members. if the
Accordingly, if Plaintiffs do
the Plaintiffs do have standing as
have standing
individual
individual members
members of the
the Association to enforce
Association to the 1891
enforce the their claims
Agreement, their
1891 Agreement, claims are not be
are not be
judicata.
barred by res judicata.
On the
the other
other hand,
hand, even
even if the
the stipulation
stþulation were
were deemed bar subsequent
deemed effective to bar claims
subsequent claims
by the
the Association,
Association, there
there is an unresolved question under
unresolved question New Hampshire
under New Hampshire law as to whether the
whether the
Plaintiffs'
Plaintiffs' individual
individual claims
claims are barred. In
likewise barred.
are likewise In the judicata
the res judicata
RESTATEMENT, the
the RESTATEMENT,
effect
effect upon
upon the
the members of an unincorporated
members of unincorporated association prior litigation
association of prior by the
litigation by the association
association
turns
turns upon
upon whether,
whether, under
under applicable law, an
applicable law, unincorporated association
an unincorporated is treated
association is as aa "jural
treated as "jural
32
entlty distinct
entity distinct from its members." RESTATEMENT (SECOND)
members." RESTATEMENT (SECOND) OF JUDGMENTS, g61. The
JUDGMENTS, §61. The
test for what

test jural entity
is a jural
what is entity is whether permitted under
whether it is permitted under local
local law to bring
bring suit in its
its own
name. If itit is,

name. If is, the RESTATEMENT provides
the RESTATEMENT provides that
thal aa suit by
by the
the entity bars
bars aa second
second suit by
by its
members. Id. at §61(2).

members. Id. the other hand,
$61(2). On the if an unincorporated
hand, if unincorporated association
association does not have
have the
right to sue
right to in its
sue in its own
own name,
narne, the RESTATEMENT would
the RESTATEMENT would not
not bar
bar the
the association's
association's members
members
bringing their
from bringing their own suit. RESTATEMENT
(SECOND) OF
oF JUDGMENTS,
JUDGMENTS, §35,
935, comment
comment d.
d.
The Plaintiffs take

The Plaintiffs take the position that,
the position that, under New Hampshire
under New Harnpshire law,
law, both
both an unincorporated
unincorporated
..))
association and its
association and its members may sue
members may to enforce
sue to the association's
enforce the association's contracts."
contracts.3l See
See Kessler
Kessler v.
Gleich, 156
Gleich, N.H. 488,
156 N.H. 488, 492-4
492-4 (2007) (limited partner
Q007) (limited partner may
may bring
bring either
either aa derivative
derivative action
action in
behalf of the
behalf partnership or a direct, personal
the partnership personal action).
action). Accordingly,
Accordingly, this
this case
case does not
not fit neatly
neatly
the either/or
into the either/or mold
mold contemplated by the
the RESTATEMENT.
RESTATEMENT.
So, what is this

this Court to do?
do? The Plaintiffs respectfully
The Plaintiffs respectfully suggest that
that the
the appropriate rule
for New
for New Hampshire to apply
Hampshire to to this
apply to this situation is something
situation is something analogous
analogous to
to the
the rule
rule applicable
applicable to
contract promisees
contract promisees and
and contract third-party beneficiaries.Y
contract third-party beneficiaries.3' Accordingly,
Accordingly, because
because the
the Plaintiffs
Plaintiffs
not involved
were not
were involved in the Prior
Prior Lawsuit and because
because neither
neither the Plaintiffs
Plaintiffs personally
personally nor the
the other
members of the
members of the Association
Association authorized the dismissal
authorized the of the
Prior Lawsuit
Lawsuit with
with prejudice
prejudice or
otherwise authorized
otherwise authorized the Association's Executive
Committee to
to give
give away
away the
the Association's
Association's or
their rights
their rights to parity,
parity, the
the dismissal
dismissal of the Prior Lawsuit
the Prior Lawsuit should
should not be
be aa bar
bar to their
their claims
claims in the
the
Current Lawsuit as members

Current Lawsuit members of the Association.
Association.
31
31 lronically, in
Ironically, !n the Prior Lawsuit,
t4e Prior Lawsuit, the
the College took the
College took position that
the position that the
the Association
Association had
had no
no standing
standing to
to sue
sue in
in its
gwn_n?Pe
own name and members could to sue to enforce
and- only its members enforce the 1 89 I Agreement.
the 1891 Agreement. Now thatthat the
the shoe
shoe is on the other
on ihe other foot,
the College, of course, takes the
the College, the opposite position.
opposite position.
32
32 It is especially
It especially appropriate
appropriate to apply such
such a rule this case
rule in this case where
where the
the association's
association's members
members who have
have elected
elected to
become
þe99me plaìntiffs
plaintiffs have
have personally
personally taken
taken actions
actions in
in reliance
reliance upon
upon the
the association's
association's contract.
contract. Although
Although it
it may
may bebe aa
bridge too
bridge too far to suggest that the
suggest that the independent rights of these association members might now be ' vested" so as to be
immune from divesture
immune divesture by the
the association,
as that bridge does 00t have to be crossed in this case because the Executive
Committee of the
Committee Association of
the Association of Alumni was never given any authority to do such a thing and, therefore, what it did
do (i.e., file
do (i.e., frle the
the stipulation)
stipulation) was
was ineffective to divest the members of their independent rights to enforce the 1891
Agreement.
Agreement.
33
JJ
VII. CONCLUSION
VII. CONCLUSION
For the
For the reasons
reasons stated
stated above, Plaintifß respectfully
the Plaintiffs
above, the pray that
respectfully pray that the
the Court
Court rule
rule as
as
follows:
1.
1. the Plaintiffs
That the PlaintifFs have
have standing to bring
bring the
the Current
Current Lawsuit
Lawsuit as members
me,mbers of the
Association;
Association;
)
2.
2. That the
That Plaintiffs' claims
the Plaintiffs' claims as
as members
members of the
the Association
Association are
are not
not barred
bared by
by res
judícata;
judicata;
3. That
3. That the Plaintiffs have
the Plaintiffs have standing to bring
standing to bring the
the Current
Current Lawsuit
Lawsuit as
as third-party
third-party
beneficiaries of the
beneficiaries the 1891 Agreement;
Agreønent;
' 4.
4. That Plaintiffs' claims
the Plaintiffs'
That the claims as third-party beneficiaries
as third-party beneficiaries are
are not
not barred by res
barred by
judicata;
judicata;
5.
5. Plaintiffs have
That the Plaintiffs have standing to sue on the
the grounds of promissory estoppel;
ofpromissory
6.
6. That the
That Plaintiffs' claims
the Plaintiffs' claims based
based on promissory estoppel
on promissory estoppel are
are not
not barred
ba¡red by
by res
judicata;
judicata;
And, therefore, this Court

Court should
should reverse
reverse the
the Superior
Superior Court's
Court's granting
granting of the College's
College's

Motion Judgment and remand
remand this case for a trial on the merits.
merits.
34
ARGUMENT
REOUEST FOR ORAL ARGUMENT
REQUEST
The Plaintiffs
Plaintiffs respectfully
respectfully request
request that their permitted to argue orally.
their counsel be permitted
Respectfu lly submitted,

Respectfully
BiV,
B.V. Brooks,
Brooks, et al
Their Attorneys:
By Their
WADLEIGH, STARR & PETERS, P.L.L.C.
WADLEIGH, P.L.L.C.
Euge
95 ket Street
Manchester, NH
(603) 669-4140
(603) 669-4140
J. Judge, Bat#1219
95 Market Street
(603) 669-4140
CERTIF'ICATE OF SERVICE
CERTIFICATE SERYICE
I hereby certiff that

hereby certify on July
that on 29, 2010,
JuIy 29, 2010, copies the foregoing
copies of the foregoing were
were served by hand
served by hand on
Attorney Bruce
Attorney W. Felmly,
Bruce W. Felmly, Esquire, MoLANE, GRAF,
Esquire, McLANE, RAULERSON & MIDDLETON,
GRAF, RAULERSON MIDDLETON, 900
Elm Street,
Elm Street, Manchester,
Manchestor, NHNH 03101,
03101, and
and byby first-class mail upon
first-class mail upon Richard
Richard C.
C. Pepperman,
Pepperman, II,
Esquire, SULLIVAN & CROMWELL,
Esquire, SULLIVAN CROMWELL,I25 125 Broad
Broad Street, New York,
Street, New NY 10004, both
York, NY both counsel
for the
for the Defendant!
Defendanl Appellee,
Appellee, and by first-class
and by mail upon
first-class mail upon Harvey
Harvey Silverglate,
Silverglate, Esquire,
ZALKIND, RODRIGUEZ,
ZALKIND, RODRIGUEZ, LUNT LLINT & DUNCAN,
DUNCAN, 65A 654 Atlantic
Atlantic Avenue,
Avenue, Boston,
Boston, MA 02110
02110 and
) Andru Volinsk¡ Esquire,
Andru H. Volinsky, Esquire, BERNSTEIN,
BERNSTEIN, SHUR, SHUR, SAWYER
SAWYER & NELSON,
NELSON, 670 N. Commercial
Commercial
Street,
Street, Suite
Suite 108, Manchester,
Manchester, NH 03105, bothboth counsel
counsel for amicus.
35
)
)
THE STATE
THE OF NEW
STATE OF NEW HAMPSHIRE
HAMPSHIRE
Grafton Superior
Grafton Superior Court
Gourt
3785
3785 Dartmouth
Damnoutb. College
Coltege Highway
Highway
N. Haverhill,
N. NH 03774
Haverhill, NH
603 787-6961
787_6961
)
)
¡¡oTICE OF
NOTICE oF DECISION
DECISION
EUGENE M
EuGENE M VJL~
V-AÀT LO~ TTI ESQ
LOAN III ESQ
VIADLETGIT STJI.RR
WADLEIGH & PETERS
ST.Þ$"R & PETERS
95 MARKET
95 MARKET STREET
STRÐET
Y~CHESTER \TT 03101
M]ÃNCHESTER ~~ O31O].
J)-
B.V. Brooks,
08-E-0294 B.V.
08-E~0294 Brcoks, et
et al
aI vs.
vs. Trustees
Trust,ees of
of, Dartmouth College
Dartmoutb. College
ì
)
please find
Encl-o-=ecÌ please
Enclosed find aa copy of the
copy of the Court1s
Court's Order dateã 1/08/2010
Order dated L/CB/zli.O
' rel-attve to:
relative Èo:
Motion ior
Motion for Summary
Sr:¡rnary Judgment
Judgrment
at/:-4/20!O
01/14/2010 Robert B.
Roberr B. Muh
Muh
Clerk of
CLerk of Court
Couri
ccr
cc: Stephen J.
Stephen J. Judge,
Judge, Esq.
Esq,
Bruce I¡1 , l"elmly,
Eruce 1i'1. F'elmL¡r, Esg.
Esg,
,loel T.
Joel T. Emlen,
Emlerr, Esq.
Eso..
R,ichard C.
Richard C. Pepperman,
!'eÞperman, II,iI, Esq.
Esq.
Ãndru Volinsky"
Andru Voiinsk-y,. Bsg.Esg.
Har-'reY lL
Harvey A- siSLlvergiate, Esg'
1 verglate, Esq.
O 'Meara- Cos-uelÌo,
Ru*-h O'Meara-CostellO
Ruth r Esq.
Esg .
AOC Form
AOC Fo¡m SUCPOS.2
SUCP052 (Rev 09,'27/2001)
0987,'2001)
36
)
THE STATE
THE STATE OF NEW
NËW HAMPSHIRE
HAMPSHIRE
GP,AFTOI.J, SS, S ' rOc--DlnR ('0'
SUPER.IOR COURTIRT
Vt I "r"a",;"J ....., "-"l'\
No. 08-E-294
Docket No. 08-E-294
3.V' Brooks, Kenneth F.

SV F, Clark, Jr.,
Ji., Marisa
Mai'isa DeAngelis Kane,
Kane, John plunkett, Douglas
Jchn H. Plunkett, Dcuolas R.
F..
) Raichle, Robert G.
Raichle, G. Reed
R.eed III, iohn Steel
1il. and John Steel III
lll
v.
Trustees of
Trustees oí Dartmouth
Dartrnouth College
ÛRDER ON
ORDER FOR SUMMARY
OI.I MOTION FOR SUMMARY JUDGMENT
Ïhe petitioners,
The petiiioners, who
who are
are alumni of Dartmouth
aiumni of Danmouih College
College and.
and members cí the
members of the
A'ssociatio¡ of
Association of Alumni oí Dartmouth
Alumni of Darimouth College (Associaiicn), have
College (Association), have fiied petition .io¡.
íiied aa Petition. for
)
Declaratory Judgment
Declaratory Judgment and
and Equitable
Equitable Relief,
Relief, alleging essentiaily triat
alleging essentially tnât the
tne respondent
i.espondeni
breached its legal

breached its and equitable
iegal and equiiable obligations when itit altered
obligations when ihe composition
altered the cornposiiion of
of the
the
Scaro of Trustees.
Board The Association
T,'ustees. The É,ssociaiion previously
previcusly filed suit based
iilecl suit based on
cn the
the same
same underlying
uncierlying
facis, docket
facts, nc. 07-E-289,
docket no. in June
bui in
07-E-289. but 2008 itii entered
June 2008 into aa stipulation
entered into siipuÌaiion with
wiih the
the
respondent io dismiss
responieni to the suit
ciismìss the suit with prejuciice. The
vuitii prejudice. The respondent moves for
respondani.moves Íor summary
summary
juCgnrent, arguing that
jUdgment, that the pressnt suit
the present suit is
Ís barred ihe doctrine
barreC by the cioctrine of jucjicata and
oí res judicata and that
thai
ihe petitioners
peiitioners lack
lack standing. -ihe petitioners
the standing. The petitioners object. ïhe
obìect, The parties
par.ties presented
presenieci ora!
o;-el
argumeni on the motion

argument rnotion on
on December
Dece,ïber 4,
4,20Qg,
2009. ;:;:0;
Fc¡ thethe reasons
Teasons that
that follow,
folicw. the
the motion
mo.rion
for summary judgment

for jucigment is GRANTED.
}
l.
1. Factual and Procedural Eackground
Pi-oceciural Background
otharwise noted,
Unless otherwise ihe following
noieci, the foflowingfacts are undisputed.
facts are undispuied, In
ìn 1891)
18g1, the
tne Board
BoarC of
oÍ
T¡usiees adopted
Trustees a resolution
acicpied a resoluiion permitting
permitiíng alumni tc nominate
alumni to nominate suitable
sui'rable persons
perscns for
for five
flve
trusteeships (Alumni
trusteeships (Alumni Trustees),
Tru'stees), which
which at
at that
thai time
time constituted
consiituied one-half
one-halí of
oi the
the Beard's
BoarC's
membership (noi inciuding

,'irembership (not ihe Governor
incíuding the of New
Governor of New Hampshire
Hampshire and presicjen.r of
anC President of the
iire
37
I
~
ì I
College, both
College, both of whom are
of whom aie ex oäcio trustees).
ex officio trustees), The
The Association,
Associeiion, of
of which
whicb ali
all alumni
alumni are
a¡'e
membûi-s, was
members, tû nominate
wes to ncminate Alumni
Alumni "Trustees
Trustess using
using procedures
pi-oceciures that
thai would
would be proviciad in
be provided in
its Constitution.
its The Board
Ccnstiiution. The 3oard would tiren elect
i¡roulC then lhcse nominees.
elect those The rernaininq
nominges, The remainihg five
iive
trustees (ChaJier
trustees (Char-ie;'Trustaas)were tc be
"Trustees) were to be nominated
norninaied and elected by
ano elected by the
the Board.
Boaro. Minutes
l,linu.ies of
oí
ssparate meetings
separate cÍ the
meeiings of the Board of the
and of
Board and Asscciaiion reflect
the Association that each
reÍiect that each approved
appi.oved the
the
new method
new of electing
method of electing trustees, ïhe
trustees. The parties did not.'
oarties did not,'however,
however, memorialize
memorialize the
ih= new
nev,;
method of
method oí election in aa single
election in written agreement
singie written signed by
agreemeni signed b¡r both.
both. During
During this
this and
and "prior
pricr
Iiiigaiicn. the
litigation, fhe new
new method oí election
nreihocÍ of eíeciion instituted in 1891
insiituteC in 1891 has been referred
has been to as
reíerred'ro as the
iire
"1891 Agreement." The

"4,^ü91 Agreement." The Court
Ccu¡t uses
uses this
this term
ierm throughout
throughout this
ihis order,
or"4ei', without
r¡¡ithout making
nraking any
anv
judgment es to
ìudgment as to whether
wheiher the
the so-called
sc-calied 1891
1891 Agreement
Agreemenl actually
actually constitutes
constituies aa legally
lagall¡r
)
enío¡ceabie ongoing
enforceable ongoing agreement
agreement between
between its par-ties to
its parties to maintain
mainiaìn numerical
num=rical parity
parii¡r on
on the
the
Ðoard between
Board between Aiumni
Aiumni Trustees
Ti-ustees and
and Charter
Chai-ter Trustees
Trustees
ln 1961
In 19ô'l and
anc 2003,
2003, the toial number
the total number of
of members
members of
cf the
the Board
Boai-d was
v,;as Increased,
inc¡easei, but
but
each Time
each tinre parity
par"iqi was
w'as maintained bet\ reen Alumni
maintained between ïiusteas and
Alumni Trustees and Charter
Chañar Trustees.
Tr-usiees. in
jn
Septembe;' 2007,
September the Board
2007, the oi Trustees
Soard of Trustees adopted
acopted aa resolution rc expand
resciuticn to expand its
its size
size by
cr¡
adciing new
adding Chaner Trustees,
nev,/ Charter Trusiees. As the result
A.s the resuli of ihìs expansion,
oí this expansicn, Alumni
Af umni Trustees
Ti-usiees would
wo,¡id
comprise only
comprise only one-third, nc longer
and no
on=-thirc,. and longer one-halt, oí the
one-half, of the Board. [n response,
Bcai-d, in i-esponse, the
ins
Associaiion filed
Assoclation suii, Itlt pled:
filed suit. pleC: Count
Count II (Breach
(3rsach of
of Contract), Count llll (Breach
Ccn+.raci), Count (Br-each of
of lrnpl'ed-
l,.nplied-
ir¡-Fa:t Contract),
In-Fact Conti-act), and
and Count lli (Promissory
Count III (pi-omissoDi Estoppel). Ccunls II and
Counts ancJ IIf I alleged
alleEed that
ihat the
the
=stoppe[).
i-espcndent breached
respondent b¡'aacireci an
an express oi implied-in-fact
express or inrptied-in-fact contract to maintain
conti-aot to paiiiri between
mainrain parity bsry;,.-
Alumni Trustees
Alumni Trusiees and
and Charter Trustees, Count
Chai-tei Trustees. iii alleged
Count ill that. even.
allsgec'that, even in ilrs absence
in the absence of
oî ae
conti-aci, promissory
contract, oiomissor-v estoppel
estoopei barred the respondent
bari'ed the responceni from
irorn eiiminating
eiiminaiing Darity.
oarii¡r.
'."
38
in June
in June 2008, ihe alumni
2Û0-8, the alumni elected
al¿cied 8a new ccmnriitee for
execuiivs committee
n3w executive ihe Association.
foi- the F,ssociaiion.
) During the campaign,

Ðuring the the candidates
carirpaign, the candidaÌe-c who eveniually elected
\¡/eie eventually
\¡¡hc were elecied opposed
oppcsec the
ihe
Association's suit
Association's suit against the respondent.
against the respondent. Upon ihe new
eieciicn, the
Upcn election, new executive
execuiive committee
ccmmittee
resolved io take
r=soived to ial'ie necessary
necessary steps to terminate
steps to tne lawsuit.
ieiminaie the The Association
lawsuit. The Assocìation and iiie
ancJ the
respondent entered
respondent into aa stipulation
eniereci into s'ripuiatìon voluntarily
vcluniar:ily dismissing ihe suit
dìsmlssìng the with prejudice.
suii with preiudice. The
Couri approved
Court approved the siipuiaiion
the stlpuiation by
by order
ordei'cjaied iune 30,
dated June 30, 2008.
2008. In Ncvernber 2008, the
in November the
petiiicners. who
petitioners, who are all alumni
ai'e all alumni and
ancj members or
members of the
the Association,
A,sscciaiion, filed
flled the preseni action.
the present action,
tÍ.
U. Siandard of
Standard oi Review
P,evigw
îhe respondent
The for summary
moves for
i-espcndent moves jucjgmeni.
surnmary judgment. A moving oariy is
moving party
;1::... is entitled ic
entltled to
judgment ~
sut-nmary judgment
summary the pleadings,
ifif the pieadings, admissions and affidavits
admissions and 'show that
aäidavits "show that there
there is
is no
qenuine issue 1
genuine issue as io any
as to any material iact and
mater;ai fact the moving
ihat the
and that paÍy isis entitled
moving party tc judgment
entitled to juCgme nt
as aa matter
as oí law."
rnatter of 491:8*a,
RSA 491
law," RSA lll, "An
:8-2, II!, "An issue oí fact
issue of iact is
ìs material
maienal ifif itit affects
afíecis the
the
I
'ouicome
'outcome of the iltication.'
of the iiiigation." Horse
Horse Pond Fish & Game
PoFd Fish G.amç Club v. Cormier,
c-iu'c v. 'Í33 N,H.
Cormier, 133 N.H.648,
648, 653
ô5-?
(1990) (quotation
(1990) (quotaíion and omitied).'The
ellipsis omitted),
anC ellipsls pariy opposing
"The party opposing summary
sùmmary judgment
ludqrnent must
must
sei forth
set iorih specific
specifìc evidence
avidence of genuine issue
oí aa genuine issue of matarial fact."
oí material Pennichuck COrD.
faCi." Pennichuck v City
Co¡-¡. v. Citv
) oí.Nashua,
of 152 N.H.
Nashua, 152 729,739
N.H, 729, (2005). The
739 (2005). Couii must
The Court considei'ihe
must consider the evidence presented
evrdence presented
cn summary
on jucigmeni in
surnmary judgment 'the light
in the liEht most
mcst favorable io the
iavciabie to paiiy, giving
ncn-moving party,
'rire non-moving girring the
tne
non-moving party
non-moving ihe benefit
pa,Ty the of all
ben=fit of all favorable jnÍerence-c that
Íavoi-able inferences ihat may be reasonably
marv be reascnabil, drawn
diawn
from the
from the evidence.
evidence. Del irrc v.
Ncúe. inc.
Del Norte, v, Provencher,
Provenchei-, 142 N.ll. 535,
142 N.H. 535. 537 (jgg7),
537 (1997),
III.
Ill. Discussion
Dlscussion
The peiiiioners offer

The petitioners ofiei three
three reasons thai they
reascns that may maintain
the¡r may r¡aíniain suit: ('í) they
sui+.: (1) they are
)
entitled to "vindicate
entitlecj to "vinciicaie their
their contractual
contiactuai rights
rights as
as members oí [the
nrembers of ftne Association]':
Associaiion]"; (2)
i2) they
ine],
39
,i
)
havs rights
have es intended
rìghts as intencjed third-party
ihirci-par.ry beneficiaries of the
beneficiaries of the 1891
1gg,i Agreement;
Ag;-eement; and
and (3)
(3)
Ðicmlssory estoppel
promissory esioppei bars
bars the
the respondent
respondent from
ii'om eiiminating
eiiminating parity.
oarity. In
ln their
their pleadings
pÌeadings and
and
ai oral
at oi-aÍ argument,
argumant, the
the petitioners
petitioners urged the Court
urgecÍ the Coud toto approach ihe pending
approach the pendìng motion
moiicn by
b¡r ,
. . !
consicjei-ing how
consideiing hcw the
the doctrine
cjccii-ine of reS judicata implicates
res judicata imolicaies each f
of these
each of these three
three theories
rheories and
and
whethei'they
whether have standing
they have sianding under
uncje¡'any
any òf these of
these three
three theories.
theories, The
The Court
Couri will,
wìll, therefore,
I
therefore, I
acidress each of
address oí.these ihree theories
these three theoi-ies separately.
separaiely.
t
l
of the Association
Members of Association
The petitioners
The cetitioners first
fÌrst argue that, as
argue that, as members of the
mernbers of the Association,
A.ssccìaiion, they
they are
are entitled
entitiecj
io bring
to for breach
suit for
'5ring suit breach of
of express
express or
or irnofleo-in-fact
implied-in-iaci contract.
ccntraoi.. Count lll of
count III of the
the petition
petjiion
relies ulon this

relies upon tnis theory.
theory. Assuming,
Assurning, without
without deciding, that individual
deciciing, that incjividual members
members of
oi the
the
Associaiicn have
Association have stanGing tc enforce
stancíing to enforce the
the alleged
alleged contract,
contract, the
the Court
Coun finds
finis that
tha.r the
the
ciocirine of
doctrine of res jucjicaia bars the
res judicata the petitioners
petiticner-s from
from litigating
litigating the
the contract
ccnti-act claims.
claims.
Spurred by bv considerations
consicierafions of oí judicial
iucjìcial economy
econorny -of and a policy oí
Spurred and a policy of
cai'iainty and
certainty finality in our
and finality our legal
legai system, the doctrines
s,vstern, the dcctrines of resres judicata
juaicata and
' colïaÍeral estoppel
collateral estoppel have have been
been established
established to ic avoid
avoio' repetitive
repetitive litigation
and
liiigaiion so
sc
thai at some
that some point
point litigation
ritigation over
over a partícuiar controversy
e particuiar ccntrove¡'s¡r must
nust come
come to to an
an
end. The
end. essence of
The essence oî the
ihe doctrine
dccirine of judicaia is that
of res judicata thaì aá final judgment by
¡natjudgmeni by
a court of co'-npeÈent jui-iscjicilon
a court of competent jurisdiction is is conclusive
conclusive upon
upcn thethe parties
pariles in in aa
subsequeni Htigation
subsequent liiigaticn involving
invorving the same
same cause
câuse ofof action.
actíon,
Eastem Marine CDnst. COrD. \/. First Southern I eZsinq, 129· N.H. 270, 273 (1987)
(quotations and
(quotations and citations
ciraticns omitted).
omiried). "Res judicata
juc'icata precludes ;i ;l ,:::^:::-:t:ii
pi-ecruie, the litigation in a later case
oí matters
of matiers actualty
aciuall¡r litigated,
litigated, and
and matters ihat could
matters that coulc have
have been
been iitigated,
iiiigateC, in
in an
an earlier
cariiei-
aciion between
action the same
between the parties for
same parties for the
the same
same cause
cause of
oí action."
action." SiLica
Bzica v.
v. Trustees
îrusiees of
oí
DaÍrnouth Colleae, 'i47 N.H.
colleoe, 147 443,454
N.H. 443, ,'For the doctrine to
Dartmouth e}aq (quotation
454 (2002) (ouoiaiion omitted).
omiited). "For the cjocirine tc
apply, three elements

appl-v' three elemenis must
musi be
be met: (1)ihe
mei: (1) pa¡-iies must
the parties must be
be the
the same
same or
cr in
in prtvity
priviir¡ with
with
40
)
one another;
one anoihel (2) the same
(2) the of action
cause of
same cause aciion must bs before
musi be the court
befcre the courl in
in both
both instances;
ins*.ances;
Ì.
and (3)
and (3) final
fÌnaljudgnrent
judgment on the musi have
merits must
the merits been rendered
have been cn the
renCe¡ed on the first aciion." &
firsi action." iC.
II
The first element
The first elemeni is satisiied. The
is satisfied. The respondent the same
is the
i-esponcjent is same in
in this
this action and the
acticn and tne
p:'ior action.
r
prior The petitioners
aciìon, The are not
petÌticners are noi the
the same, but they
same, but they were
were represented by the
iepresenied by I
Associaticn in
Association in the prior litigation
the prior and are
liiigation and boun.d by
are bound by the prior dismissal
the prior wiih prejudice.
dismissal with "li
orsjuciice. "A
person who
person is not
t¡¡ho is party to
noi aa party to an
an action
action but
but who is represented
v¿hc is by aa party
represented by partyi is bound by
ìs bound bv 1
I
and entitlei to
anC entitled tc the of the
beneii;,s of
'rhe benefits jucÍgmeni as
the judgment though he
as though wei'e aa party."
he were parry." Restatement
Restaiemeni
I
cf Judaments
lSeconcj) of
(Second) Judoments § 41(1)
$ 41 f1982), A
(1) (1982). person so
A person so represented is "bound
¡'eprâ-senteC is "bound by
by the
l
judgnrent even
judgment even though
thcugh the pei-son himself
the person himself does not have
cJoes not have notice oi the
notice of the action, is not
action, is noi
I
sei'ved with
served process, or
with process, or is 'not tc service
subject to
nct subject process," ld.
of process:
service of ld. at
at § 41(2),
S 41 (2). i
ïhe RestatemenÌ (Second)
The Restate-ment oí Judgments
{Second) of Judgmenis explains ihat an
exclains that an individual may be
incjiviiual may I
bound by
bound judgmeni entered
by aa judgment in aa suit
eniered in suit brought
broughi by an entity
by an with authority
eniity with authcrity to represent
represeni
the individual's
the inciivicjuals interests. Fcr example,
inierests. For judgmen'r entered
exampìs, aa judgment in litigation
entered in litigaticn broupht
brcu.ght by
b¡,'
.,
l'managing
.
"managing officers of an
ofricers of an unincorporated
unlncorporated association with regard
associatjcn with ic association
reEard to propeily
asscciaiion property
and contracts"
and is binding
coniracts" is on members
binciìng on oí the
membars of the unincorporated associaiion, ld.
unincoi-poi'ated association. ai
id. at §
$ 41
ccilmeni b.
comment b. The
The followino
-
illustration is
follcv'ring illustration
oJ ,
"Tha members
proviieC: "The
is orovided: membeis of the council
of the of an
council of
~~ -. - -'
iribe bring
lncjian tribe
Iridian an action
bring an to determine
aciion to túe"boundary
cjetermìne the iine between
boundary line the lands
between the of that
ianos of thai
tribe and
tribe ancj another. The juigmen'r
ancthe¡-, The is bindina
iudament is
., binciing on
",,".,;;J A, aa member
on A, cí the
membei of iribe, with
the tribe, wiih respect tr
i-espect to
•
the ownership
the ownership and rights he
occupancy rights
anci occupancy in the
have in
may have
he may the land as aa member
ianC as gí the
member of iriie."
ihe tribe."
ld. at
!d. ai §$ 41 illustratlon ~! (emphasis
41 illustration (enrphasis added). The Association
acided). The brcughi the
É,ssociaiion brought piioi'suii'io
the prior suit to
vindicate its contractual

vincjioaie its coniiactual rights. lnsofar as
righrs. Insofar as the petiÍioner-s filed·the
the petitioners present suit
íiíed the present cased on
suit based
41
41
'j
II
!
ineir status
their siatus as
as members
members of
oí the
ihe Association io vindicate
Association to vindicate those
thcse same
same contractual
coniractuai rights,
rignts,
. .
they are bound
they bounC by the judgmeni entered
ihe judgment entered in the prior suit.
suit.
The second
The seccnci element juCicata is also
oí res judicata
eiement of saiisfied because
also satisfied because the
the same cause of
oí
action is before
actÍon is the Court.
before the Ccuri. Under
Under modern
mocterl. New jurisorucjence, "cause
iiampshire jurisprudence,
New -Harnpshlre "causs of
of
)
action''reíai'[s]
action" to all
"referjs] to all theories on which
theories on reljef could
which relief couid be
be claimed
ciaimed on
on the
the basis
basis of
oí the
the
factual transaction
factual ti'ansacijon in quesiicn," Eastern
in question: Easiern Marine Const. Com.,
Marine Canst. 129 N.H.
Coro.,,129 N.H. at
al 275. "Res
275.,,Res
judicaia will
judicata u'ill bar
ba¡ aa second
second action
action even
even though the plaintiff
thcugh the plaintiff is
is prepared
prepared in
ln the
the second
)
action io present
acticn to present evidence
evicjence or grounds or
or grounds ol theories the case
oí the
theories of case not
not presented
presenied in the first I
aciìon." Brizca,
action."
the same
the
Brizca, 147
same cause
147 N.H.
N.H. at
cf action
cause of
at 455-56.
foi the
actÍon for
"Generally, in determining
455-5ô. "Generally,
the purpose
purpose of
of applying
Ceiermining whether
aooiying res
two actions
whethertwo
judicaia, [courts)
res judicata, fcourÌs]
actions are
are
consider
I
i!
whether the alleged

u'rhether the a[eged causes oí action
causes of action arise ihe same
of the
arise out of same transaction
transaction or occurrence."
cccLlrrence,"
I
i
Sieeoei-v.
SleeDer Hoban Familv
v. Hoban '157 N.H.
F'Ship, 157
FqmÍlv P'Shio, N.iJ, 530, 534 (2008)
530, 534 (2OOS) (quotation
(quotation and
and brackets
bracke,r-q
omitted).
cmit'.ed).
The same
The faciual transaction-the
same factual ir-ansaciion-the change in the
change in the composition oi the
compcsîiion of the 8oard-
3oarC-
iorms the
forms' îhe basis îor this
basis for this suit
suit and the prior
and the pi-icr suit.
suii. The petiiioners argue
The petitioners argue that
thai nothing
nothing was
vras
actually litigated
actually titigaied in the prior
Ín the ci'ior suit because itii was
suit because was dismissed
cjismissed before
before the
the issues
issues were
deciieo. In
decided. in New
New Hampshire, cause of
Harnpshire, cause oí action construed broadly.
aciion is construed broadlv, Brizc8, 147 N.H.
3!lzca,147 N.H. at
at
454' The
454. The prior
prioi' suit
suii was
v,ras based on the
basec' on the same factual transaction,
sarne factual ti'ansacticn, and
and all
all of
of the
the lega!
legai
issues now
issues raisei either
now raised were raised
eithei' were cr could
raiseC or cculd have been raised
have been raiseC in
in the
the prior
pricr suit.
sui,r. The
The
breach of contract
breach coni¡aci claims, in particular,
claims, in pa,'ticuiar, were
weie raised the prior
raiseC in the prior suit.
suii. The
The Court
Ccuft therefore
íinds that
finds that this presenis the same
this suit presents same cause
cause af
of action
ac,.icn as
as the
the prior suit.
crior-sui,r..
42
i..:*"
)
J
The third
The third element is also
elemeni is also satisfied. The prior
satisfied, The prìor litigation
litigaiion was
was .dlsmlssed
.disrnisseci with
wiih
prejuclice based
prejudice basec upon
upon the
the filed
fïred stipulation.
siipuraticn. The
The dismissal
cjjsmissai with
rr,iith prejudice
prejudice was
was aa final
fina!
judgment, See Cathedral of the 8eechwoods v. Pare, 138 N.H. 389, 391 (1994); Moore
judgment. Seg , 138 N.H. 389, 39.1 (199a); Moore
v. Town
Town of
oí Lebanon,
Leb?non, 96
96 N.H. ?0,22
N.H. 20, (tgafi. That
22 (1949). judgmeni has
That judqrnent ,'preclusive effect as
v. has a
a "preclusive efíeci as
io both
to both what
what was
was actually
actually litigated
litigaied and
and everything inat could
everyrthing that couid have
have been
been litlqated."
iîilgated."
Cathed¡-al of the
Cathedral thq.BeechwgcCs, ,i3g N.H. at 391 .
8eechwoods, 138 N.H. 3g,l .
At various
. At points in
various points in their
their pleadings cial argument,
and oral
oleadings and argumeni,, the
the petitioners
peiiiioners have
ha,re
ouesiíoned whether the Association

whether the Association should
questioned shoi.lld have
har.,e entered
entered into
into the stipulation to
the stipulation to dismiss
ciismiss
L
the prior
the piioi' suit
suit with prejudice. They
with prejudice. They claim
ciaim that ihe stlpulatlon
that the stipulation and
and dlsmlssal
dismissa! are
are "tainted"
"tainted,,
and should
shouid not
not be glven res judicata
be given jucficata effect.
and The Court
efíect. The Couri finds
fìncls that
that iitigation
iitigation of' of these
these
arguments is
arguments is barred
barreci by the Bricker
by the Sricker doctrine.
docirine, See
See Bricker
Bricke¡ v.
v. N.H.
N.l-.{. Medical Societr..,, 1'10
MeCicaì Societv, i,iC
N.H. 469
469 (1970).
(1'970). Under
Under Bricker, ,[tudicial interference in the internal affairs of
Bricker, "[jjudicial
N.H. interierence in the iniei-nai aifairs oí
associaiions is strictly
associations str-ictly limited
limÌted and
and will not be undertaken
undeftaken in the
the absence
absence of
of aa showing
showing of
of
Ínjus'rice or
injustice or illegal
illegal action
acticn and
ancÍ resulting
i-esuliing damage
ciamage to
to the
the complaining
comolaìning member." Id. at 470.
member,,lc, aT4TC.
Viewed in the
ViewecJ in the light
lighÍ most
most favorable ic the
favoiabie to petitioners, the
the petitioners, the facts
íacrs set
set forth
forth in
in the
the petition
petitjori,
and the
and Íhe Objection
objection to the motion
to the motion for jucjgmeni regarding
foi' summary judgment i-eEarding the
the eiection
eiection of
of the
the new
new
executit'e cornmittee
commitiee and
and termination of the
terminaÉÌon of ihe prior
crior iitigation
iiiigation do
cio not
executive not show injusticè or
show injustice. cr
ilieEaliiv. The
illegality. peÍiiioneis allege
Ths petitioners allece basically
basically that
thai the
the new
nô-w executive
execuiive committee
ccmmiitee was
vras elected
elected
after openly
after openly campaigning
campaigninE against the litigation.
against the iitigaticn. Once
Once elected, itii took
took measures
elacied, measuies to
io
ierminaie the
terminate the litigation.
liiigaticn. Those
Thcse measures
meesures included
inclucled working
woi'king with
with counsel,
counsel, the
the respondent,
¡o-sDoncjen.r,
and the
and the respondent's
respcndeni's counsel
counsel to iiaft the
io draft ihe stipulation,
siipuiaiion, These
These facts
facis do
do not
not dernonstrats
demcnsiraie
)
injustice or
injustice or iliegailty
iilegaiity that
that would jusrifir the
woulC justify the Court
Court invoivlng
invoiving itself jnternal affairs
itseif in
in the
the internal afrairs of
oí
43
ihe Association.
the Association. The
The Court
Couri wiH
wifl not, therefore, look
not, therefore, lcok behind
behind the
ihe Association's
Asscciatioiì's reasons
reasons for
fcr
entering into
entering intc the
the stipulation.
siipulaticn. The
The dismissal
cjisnrissal with
v¡ith prejudice
orejuciice was
vvrr5 a
¿ finaljudqment
final.judgment for res
íoi.res
judicata purposes.
judicata puiposes,
Because the
Because thres elements
the three cf res
elements of jucjicata are
res judicata are satisfied,
saiisfied, the
the Court
Court rules
ru)es that
tha,r the
the
petítjoners' contract
contract ciaims based
clams based on
petitioners' on their
their status as members
staiu_q as members of
cf the orEanization are
the organization ai.e
barred by
barred b¡r res juciicaia.
i'es judicata.
ïh ird -P arty Beneficiaries

Third-Party tseneficia ries
Ïire petitioners'
The petitioners' second
seccnd theory
theory is
is that
that they
tney are
are intended
intendeC third-party
beneflciaries
of the
the alleged
allegeci express or implied-in-fact
expiess or implieci-in-fact contract to maintain
of conti'aci to maintain parity.
parity. Counts! anc IIll of
Counts I and oi
the petition
the peiiiion are premised on
are premised cn third-party
third-pariy beneficiary
beneíicìary status.
status, In
ln considering
considering this
this argument,
argumeni,
ihe Court
the Couñ assumes,
essumes, without
withcut deciding, thai the
cjeci.cing, that the 1891 Agreement is
1891 Agreement is aa contract to maintain
contracîio mainiain
parity. The Court

larit5r. The Court finds the respondent
that the
finCs that resÞoncieni is
is entitled tc summary
entitled to surnmary judgment
juc]grneni because
because
the facts,
the facts, viewed
vjewed most
most favorably
Íavorabìy, to
1o the petiiioners, do
the petitioners, do not
not show
show that
that each alumnus of
each alumnus oi
Danmouth College
Dartmouth college is
is an
an intended
iniencjed third-party
thii-d-pai-ty beneficiary
beneficiary of
oí the
the contract.
contiact.
"A third-party
"A thirc-pariy beneficiary
beneficÍary relationship exists ifií .. ...
relationship exists , ccniract is
the contract
the is so
sc expressed
e>rDressed
as io give
as to give the promisoi reason
the promisor io know
reason to ihai aa benefit
know that to aa third
benefìt to thiid party
party is conternpiated by
is contemplated by
promisee as
the promisee as one oí the
one of the motivatina
moiivating causes of his
causes of
the • . Q his rnaklno
making the
the contract."
conti-ac-r," Tarncosi
-Tamocsi
.A.ssociaies v.
Associates siar tvikt.
r.'. Star lviii<t. Co., ig
co., 119
i N.H.
N.H, 630,
630, 633 "4 benefit
(1g7g). "A
û33 (1979). benefit to
tc aa third
third party
party is
is aa
)
'rnotivaiing cause' oí entering
caLJS€' of entering into
inio aa contract
ccntract only ,give
'motivating the promisee
where the
oni'y where pronrisee intends
inienis to
to 'giv8
tne beneficiary
the beneficíary the
the benefit cf the
benefii of penoimance,"'Grcssman
prornised performance."
the promised Grossman v.
ri, Murray,
Mu¡iav, ·,44
i44
l{.H.3'45,348(1999)(quoiings302(i)(b)(198îj)
N.H. 345, 348 (1999) (quoting
Restatement (Second) of Contracts § 302(1)(b) (198'1)).
"'unless the
"Unless the performance
períormance required
requireo by
by the
the contract will directly
coniraci will cjirecilv benefit
benefìi the
ihe would-be
wouici-be
44
)
intended beneficiary,
intended benefìciary, he
he is at
ai best
besi an incidental beneficiary."' !.fL
incidentai beneficiary." ld. (quoting Public
Pubiic Service
Service
Cc. of
Co. oí N.H. v. Hudson
N,H. v. l-iudson Licht & Power,
Licht & 938 F.2d
Po'+rer, 938 338, 342
F.2cj 338, (1si Cir.
342 (1st Cir. 1991)).
1991)), To establish
esrabtish
ihat they
that they are intended
infencjed third-party
third-pari5r beneficiaries, ihe petitioners
beneficiaiies, the petitioner-s would
would have to
tc show that
that
"i'eccAniiion of
"recognition oíaa right io performance
r-ighi to períormance in [them]
[them] is appropriate
appropriate to
to effectuate
efÍectuaie the intention
inieniicn
)
ci the
of the parties" io the
parties" to the alleged
alieged contract
coni¡act and ihai the
and that "circurnstances indicate
the "circumstances indica',e that
'rhai the
ihe
promisee intendjed]
promisee io
give [them]
iniend[ed] to give ihe benefit
fthem] the of the
benefii of the promised
promised performance."
peiiormance."
Resiaiemeni (Second)
Restatement lSecond) of Contiacïs §
of Contracts S 302(1
302i1).).
The petitioners' claim

The petitioners' that they
ciairn that they are intended
intended third-party
third-paÉir beneficiaries
beneficiaries is belied
belìed by
iheit admission
their ihai the
acjmissìcn that the members oÍ the
membe¡s of the Association could vote
Assoclation could to empower
vote to enrpov;ei' the
tha
execufive committee
executive to end
comñríitee to the alleged parity
end the pariiy agreement.
agreement. For the trier
Foi'the iriei of
of fact
facÌ to
io find
iìnd thai
thai
every alumnus
every alumnus is an
an intended
intencjecj beneficiary cí the
beneficiê4, of ihe alleged contiaci, itii would
atlegeC contract, v¡cuic have to
to find
Íìnd
thai recognition
that oí aa right
reccgnition of of performance
i-ighi of perioi'mance in every. individual alumnus
every-incjividual aiunrnus is appropriate
aoprooria.re to
io
ihe intent
effectuate the inieni of
of the parties at
the parties tinreth=¡,s¡¡-r"d ,1801 ,.b.,greement.
effectuate atihe
the time they entered into
into the
the 1891 Agrse;.neni. By
tsV
admitting that the Association,

acjmitting that ,Associaiion, 2S
es a collective
colleoiive entity
entit¡r and
and without
wiihout a unanimous
unanirnous vote
vo.re of ail
ail
mernbers, could
members, cculd vote to eliminate
vote to ef iminate parity, peiiiioneis necessarily
partiy, the petitioners necessarily concede
concecje that
ihat a righi
righi
oí performance
of peifcirnance in
in each
each alumnus
alumnus is
is not
not appropriate and should
aoprooi-iate and shculd not
not be
be recognized
recognìzed in
in
io effectuate
o¡'o'ei to
order the intent
effectuate the the parties to the
inÉent of the í8g1 Agreement.
the 1891 Agi^eemeni.
Also, ihe circumstances

Alsc, the circumstances of
of the '1891 Agreement
ihe 1891 Agreement do
do not
not show that the parties
shcv,'rhat pa;'iies to itiî
)
intended a benefit
intended io flow
benefit to flow directly to each alumnus
ciirectfy to in his
alumnus in his or
oi' her
her individual
individuai capacity.
capacity. No
Nc
íacts regarding
facts ihe circumstances
i-egarcÌing the circurnsiances of the 1891'
oí the 189í .Agreement
Agreement are in dispute.
ai'e in cíispute. The 'í83'i
The 1891
,Agreement gave the

Agi'=ement gave the Association,
Assoclar.ion, as a single, colieciive entity,
single, collective eniity, the
the ability io name
abilit¡r to namé five
five
)
irustees. ItÌt did
trustees. not give
cjic not each individual
gir,,e each iniivioual alumnus
alumnus a right to do
righi to cio so. Tne undisputed
so. The undispuÍec! fasts
facts
45
)
do noi show
cjo not show that ihe parties
thai the parties to the'i891
to the Agreement intended
1891 ,Agreement intencjad each
each member
nrember of
of the
the
Association and all

,Á.sscciatic¡r and alt future.
fuiure members the Association
of the
members of Assoclation to
to have
have the
the benefit,
beneíii, in
in their
their
indivicjual capacities,
individual capacities, of
of being able to
to nominate
nominaie half
half of
of the
the members
members of
oí the
ihe Board.
Board. The
The
Association currently
Association currently has
has approximately
aoproximately 69,000
ô9,000 members.
mernbers. The i gg1 Agreement
The 1891 Agreeme;ri II
conferied aa benefit
conferred benefii on
on alumni,
alumnj, not
not on
cn each
each alumnus.
alumnus. In
In order
oi-der to
to effectuate
eäectuaie the
the purpose
purpcse
of the
of i8'oi Agreement:.-.giving
the 1891 Agrec¡¡s¡{-siving alumni
alumni aa greater
greatei'role
role in
in management
management of
of Dartmouth
Daftmouth
.1
Colieg+-it is
Colie9e-it is not
not necessary
nêcessary or appropriate
approprlate to
i.o recognize
recognize a right
right of
of performance
pei-iormance in
in each
each
indiviciual alumnus.
individual aiumnus. The
The 1891 Agieement would
1891, Agreement be entirely
woulC be unworliable ifií itit were
entirsly unworkable were
I
lntei'preied to
to confer
ccnfer such
such a benefit and
interpreted and if such
such a right
righi of
cf performance
periormance were
were recognized.
recognized.
f
Jtli is
is unquestionable
unquesticnable that each
the Association
the É.ssociaticn and,
and, in
in turn,
turn. from
each alumnus
Írom the
alumnus derives
r'he 1891
derives some
1891 Agreement.
some benefit
benefii from
from membership
membership in
in
I
Agreement. In
ln fact,
íact, each
each alumnus
aiumnus likely
likeiy
derives a benefit
derives a beneiit from
fi'o;'n any
any number of
of contracts
conrracts into
into which
which the
the Association
Âsscciation has
has entered.
enrerec..
This
This does noi necessarily
cioes not necessarily mean thai each
mean that each alumnus is an
alumnus is an intended
iniencied third-party
third-oariy
beneficiary of every
beneficiary of every contract
contract the Association
,¡,ssoc;ation has
has entered.
entei-ed. Cf.
Cí. Numerica
Numerica Savinos
Savinos Bank
tsank
y. Mountain
v. Mouniain Lodae lnn, 134
Locjoe Inn, 134 N.H. 50s, 512
N,H. 505, (1gg1) (recognIzing
512 (1991) (recognizing that
thai corporate
ccroo;-aie
shareholders are not

shareholcjeis are noi intended
intended beneficiaries of every
beneiiciaries of evÊry contract
ccnii'act entered
eniered into
intc by
b¡r the
ihe
corporation). "Perormance of
corpoi'aiicn). "Performance oí a contract
contiact wili
wilÌ often
often benefit
benefit a third
thi¡d person.
person. But
But unless
uniess the
the
perscn is
ihird person an intended
is an beneíiciary
inienced beneficiary nc duty
third ... no to him
duiy to him is
is created."
ci-eated.'' Restatement
Restaterne¡i
(Second) oi Contracts
lseccnd) of Coniracis §S 302
302 comment g. The
comment g. The undisputed
uncjispuied facts
facts surrounding
sui-i-ounCing the
tne
formation oí the
icrmation of 'iBg1 Agreement
the 1891 Agreenr:nt viewed mosÍ favorably
vjewed most favoiabiy to
to the
tha petitioners
peiiiioners could
couìd not
nof
show that
show the petitioners
that the peiiiionsis are
are intended
iniendeC third-party
thírd-paÉy, beneficiaries,
beneficiaries, even
ev=n though
thouqh the
the
agreement benefits
agreement beneiits them.
ihern.
46
. )
)
Moreot er-, were

Moreover, the Court
wei'e the to recognize
Coui-i to recognize the petitioners as
ti-le petitioners as intended
intencjed third-party
tirird-par¡r
beneficiaries, ii
beneiisiaries, it would the judiciary
embroil the
woulC embroil in the
.jucÌicia* in the internal
iniernal governan~~ oi the
governenoe of the
AssocjaÍion, if a majority
Association. of the
majority of the -alumni
alumni have
nave voted Íor leadership
votad for leadership that
thai does
cjoes not
noi want
v,,ant to
enforce ihe 1891 Agreement,

eníorce the Agreement, itit is the Court's
is not the place to
Couri's place to find
find that group of
that aa group of seven
seven
alumni may
alumni ihei¡ will on the
may impose their the remaining
remaining alumni.
alumni. See
Se"= Bricker,
3rjcker, 110 N.H. at
1'í0 N.H. 470. By
a|47Q.3,¡
recognizing a right of
i'ecognizing a of performance
pefformance in
in the
the petitioners, the Court
cetiiioners, the Ccuil would
would interfere lvith ihe
inienere with the
Associationls internal
Association's internal affairs.
afiairs. Judicial interveniion into
Judiciai intervention ìnto disagreements
cjisagreements between
beÍween factions
of the
of the Association wculd be improper
,¡.ssociaiion would imprcper in the
the absence
absence of
of injustice
injusiice or illegality. See &
illegality, See iC, As
é,s
the Court
the CouÉ hes
has explained
explaine.d above, facts pled
abcve, the facts pied do
ðo not
noi show
show injustice
injusiìce or Illegality.
illegaliiy.
The fincs that

Court finds
The Court tire petitioners'
that the pe'ritioners' own
ovr'n admissions
admissions regarding
regarding the
tha Association's
acility to
ability tc end the alleged
enü the allegecÍ agreement tc maintain
agreement to paiity negates
mainiain parity negares their
their claim
claim thai
that they
they are
are
!
intended third-party
intended third-patty beneficiaries. ïhe Court-also
beneÍiciaries, The Cou¡i aiso finds
finCs that
that the
the undisputed
unciisputec! facts
iacts do
cio not
noi l.
support ihe petitioners'
suppori the petiiionei-s' claim
claìm that
tha'i they
the¡r are iniendeC third-party
are intended third-paity, beneficiaries,
beneilciariss, and
anci that
ihai
I
Íufiher consideration
further consideiation of
of this
this matter
marter would the Court
require the
wouìcl require io disregard
Couri to ihs Bricker
disre-oard the Bricker
doctrine. these reasons,

cjccirine. For these the Court
reasons. the Couil rules
ruies that the respondent
that the responcjent is entitled to
io judgment.
iucjcmeni,
as
8S of law, on the
a matter of tho petitioners'
cetiÍioners' third-party
rhircl-pari¡r beneficiary
beneficiary claims.
claims.
Promissory Estoppel
Promissory Estoppel
îhs petitioners
The ceiitioneß argue
arguê that the 1891
iha'r the 1.89i Agreement
Agreemen+, constitutes pro,"nise to
co;rstitutes a promise ta maintain
maintain
parity, that the Association

parity, Association and iis members
anC its membe¡'s relied
i-e[iecl on that
thai promise,
oromise, and that
that promissory
prornissoiy
esioppel binds
estoppel tile respondent
binds the io honor
resocndent to tire promise.
honoi' the promÌse. Count
Couni [\I oí the
IV of the petition
petiiion is
is
premised cn promissory
premiseC on promlssorv estoppel. lf
esicopaf. If aa promise
promise was macje, itit was
was made, v,'as made io the
i-raije to the
Asscciation andior
Association andior its
i+,s membership as aa collective
membe¡-ship 8S coilectir¡e Whole. The Association
v¿ncle. The Asscclaiicn raised
iaised this
47
'J
issue in the prior lawsuit. The Court finds and rules that this claim is barred by res
o
iudica a for the same reasons that the contract claims are barred by res judicata.
rv. Conclusion
The Court has analyzed each of the petitioners' three theories of the case. The'
o
Court finds that two are barred by res judicata. Wiih respect to the third, the undisputed .
facts show that the petitioners are not intended third-party beneficiaries. Accordingly,
. .
the respondent is entitled to judgment, as a matter of law. The motion for summary
oc i
judgment is GRANTED. I
SO ORDERED. ~
i
oc
Dated: January !?, 2010 I
Timothy J. Vaug'hanf
Presiding Justice
I
1
o
a
c
o
48
48

Plaintiffs Appeal Brief 0910

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Plaintiffs Appeal Brief 0910

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THE STATE

Docket No. 2010-0179

RULE MAI\DATORY APPEAL

G. 'Where the Undisputed Facts Establish (A) That

College nominally against

alumni's right to "parity."

February 1, 2008, the

recent effort to abrogate it as follows

Following the Agreement,

The parity between

Undaunted, the College

outside of court what

lawsuit and thus

Committee positions. The

dismiss the Prior Lawsuit."

meeting Alumni held

which were passed

Russell Hilliard as its new

stated simply: "The

commonly done as simply as

Two days later, on June

sent revealing email

ways that had traditionally

"non-suit," the parties

'loluntary dismissal with

Mathias for the

conducted the late

Superior Court. (App.A,

Attorney Felmly mailed

and that he, Mr. Mathias, would be

to issue anything until

elected for aa year,

committees from acting

patience and, if possible,

plan and keep

urging of Mr. Mathias

off on the stipulation. CAppoA,

Attorney Hilliard apparently

will only be used

Dismissal follows the recent

The lawsuit was

publicity about the

terms the stipulation

editorials the June

understood that the

by the Plaintiffs in the

Prior Lawsuit in the manner

thereby "Ending parity-

would have commented

"concerned pol." (App.

reflect, * then take

it were well founded.

filing the Prior Lawsuit

the other hand,

During the pendency

aa so-called "freeze" upon

expand its membership

with an equal number

Each of the Plaintiffs is a graduate

some the specific actions taken by him in reliance upon

Motion for Summary

a former Alumni Trustee.

contract law. Section