plaintiffs appeal brief 0910

8/8/2019 Plaintiffs Appeal Brief 0910

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THE STATE OF NEW HAMPSHIRE

SUPREME COURT

Docket No. 2010-0179

B.V. BROOKS, KENNETH F. CLARK, JR., MAruSA KANE,

JOlIN H. PLUNKETT, DOUGLAS R. RAICHLE, ROBERT G. REED III, AND JOHN STEEL III

Appellants

v .

TRUSTEES OF DARTMOUTH COLLEGE

Appellee

RULE 7 MANDATORY APPEAL FROM

GRAFTON COUNTY SUPERIOR COURT'S GRANT OF

DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT

BRIEF OF PLAINTIFFS/ APPELLANTS

Eugene M. Van Loan III, Esq., Bar #2601

Wadleigh, Starr & Peters, PLLC

95 Market Street

Manchester, NH 03101

603-669-4140

(Counsel to Argue)

Stephen J. Judge, Esq., Bar #1292

Wadleigh, Starr &Peters, PLLC

95 Market Street


603-669-4140

THE STATE OT'I\EW HAMPSHIRE

SUPREME COI]RT

Docket No. 2010-0179

B.V. BnooKS, KENNEnT F. Crenrç JR., MarusR KANE,Jom,l H. Pltnucnrr, Doucr,es R. R¡rcure, RoneRt G. R¡en III, aNo Joril.l Srenr III

Appellants

v.

Tnusrnrs or DeRrvrourn Cor,r,ncn

Appellee

RT]LE 7 MAI\DATORY APPEAL FROMGRAFTON COUNTY SIIPERIOR CO[]RT'S GRANT OF

DEEENDAIIT/APPELLEE'S MOTION FOR ST]MMARY JT]DGMENT

BRIEF OF PLAINTIFFS/ APPELLA¡ITS

Eugene M. Van Loan III, Esq., Bar #260IWadleigh, Sta¡r & Peters, PLLC95 Market StreetManchester, NH 03101603-669-4140(Counsel to Argue)

Stephen J. Judge, Esq., Bar #7292Wadleigh, Starr & Peters, PLLC95 Market StreetManchester, NH 03101603-669-4140



I. TABLE OF CONTENTS

I. TABLE OF CONTENTS i

II. TABLE OF AUTHORITIES IV

m. QUESTIONS PRESENTED . 1

IV. STATEMENT OF THE CASE AND THE UNDISPUTED FACTS 2

V. SUMMARY OF ARGUMENT 14

VI. ARGUMENT 14

A. Preliminary Matters. . . . . .. 14

B. Since the Undisputed Facts Establish That the Parties to the 1891 15

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 Sue in Their Own Names to

Enforce this Contract.

C. The Superior Court Assumed, Without Deciding, That the Plaintiffs Do 19

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.

D. Even Ifthe 1891Agreement Is Deemed Not to Be a Contract Between the 20

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.

i

L

II.

I. TABLE OF CONTENTS

Pase

TABLEOFCONTENTS... ....... i

TABLEOFAUTHORITIES ...... iv

m. QUESTIONSPRESENTED.. ......1

TV. STATEMENT OF THE CASE AND THEUNDISPUTED FACTS .. . . . . . . . . . .2

V. SUMMARY OF ARGUMENT .. . . .74

VI. ARGUMENT,... ,.......T4

A. Preliminary Matters. 14

B. Since the Undisputed Facts Establish That the Parties to the 1891 . . . .... 15

Agreement Intended and Expected Alumni Such as the Plaintiffs to BeIndividually Benefited by and Have Rights under the Contract, theSuperior Court Was in Enor in Ruling That the Plaintiffs Do Not HaveStanding as Third-Parfy Beneficiaries to Sue in Their Own Names toEnforce this Contract.

C. TheSuperiorCourtAssumed,WithoutDeciding, ThatthePlaintiffsDo .......19Have Standing as Members ofthe Association to Bring Suit in Their OwnNames 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.

D. Even lf the 1891 Agreement ls Deemed Not to Be a Contract Between the . . . . . . . 20Association and the College, the Plaintifß, as Persons 'Who theUndisputed Facts Establish That the College Should Reasonably HaveExpected to Rely upon its Promises Regarding Parity and'Who Have inFact Taken Actions in Reliance upon the College's Said Promises, HaveStanding under the Doctrine of Promissory Estoppel to Sue in Their OwnNames to Enforce the College's Promises.



E. Even If the Filing of a "With Prejudice" Voluntary Dismissal of the Prior

Lawsuit Might, under Ordinary Circumstances, Have Provided aBasis for 21

the College's Assertion of theDefense ofRes Judicata, the College Should

Be Denied the Opportunity to Avail Itself of Such a Defense in this CaseWhere the Undisputed Facts Establish (A) That the Association's

Executive Committee Had Not 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 Nothing inReturn for the Executive Committee's Dismissal of

the Prior Lawsuit "With Prejudice," and (C) That the College Itself

Colluded with the Association's Executive Committee and Orchestrated

the Preparation and Filing of the "With Prejudice" Dismissal in Such a

Manner That the Alumni Would Not Find out about it until it Was Too

Late.

F. The Judiciary Should Not Be Barred by the So-called Bricker Doctrine 26from Inquiring into the Irregularities Surrounding the Preparation and

Filing of the "With Prejudice" Dismissal of the Prior Lawsuit Where the

Actions of the Association's Executive Committee in Withdrawing the

Prior 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 Is Not

the Association, but Is Instead the College.

G. Where the Undisputed Facts Establish (A) That the Plaintiffs Had No 29

Personal Involvement in the Prior Lawsuit, (B) That, as ofthe Time of theFiling of the Plaintiffs' Lawsuit, the Plaintiffs' Third-party Beneficiary

Rights Could Not Be Extinguished Because Their Rights Had Vested, 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 That the Plaintiffs' Third-party

Beneficiary Claims Are Not Barred by Res Judicata.

ii

E. Even If the Filing of a "'With Prejudice" VoluntaryDismissal of the PriorLawzuit Might, under Ordinary Circumstances, Have Provided a B asis forthe C ollege' s Assertion of the D efen se of Re s Judi c at a,the College Should

Be Denied the Opportunity to Avail Itself of Such a Defense in this CaseWhere the Undisputed Facts Establish (A) That the Association'sExecutive Committee Had Not Been Authorized by the Alumni to TakeAny Action Which Would Extinguish the Association's or the Alumni'sLegalRights to Parity, (B) That the Association and the Alumni Received

Absolutely Nothing in Retum for the Executive Committee' s Dismiss al ofthe Prior Lawsuit "With Prejudice," and (C) That the College ItselfColluded with the Association's Executive Committee and Orchestratedthe Preparation and Filing of the "With Prejudice" Dismissal in Such a

Manner That the Alumni Would Not Find out about it until it Was TooLate.

The Judiciary Should Not Be Ba:red by the So-called Bricker Doctrinefrom Inquiring into the I:regularities Surrounding the Preparation and

Filing of the "With Prejudice" Dismissal of the Prior Lawsuit'Where the

Actions of the Association's Executive Committee in Withdrawing the

Prior Lawsuit with Prejudice Did Not Involve Some Mere Policy Disputeover the Association's Internal Affairs, but Instead Arguably Effected a

Relinquishment of hnportant Legal Rights of the Association and itsMembers Vis-à-vis an Outside Third Parb/, I.e., the College, and Wherethe Parly Attempting to Claim the Benefit of the Bricker Doctrine Is Notthe Association, but Is Instead the College.

'Where the Undisputed Facts Establish (A) That the Plaintiffs Had No

Personal Involvement in the Prior Lawsuit, (B) That, as of the Time oftheFiling of the Plaintiffs' Lawsuit, the Plaintiffs' Third-party BeneficiaryRights Could Not Be Extinguished Because Their Rights Had Vested, and

(C) in Any Case, That Neither the Plaintiffs PersonallyNor the Alumniin General Had Taken Any Action or Authorized the ExecutiveCommittee of the Association to Take Any Action to Extinguish the

Association's or the Alumni's Legal Rights to Parit¡ Such UndisputedFacts Compel a Ruling in this Case That the Plaintiffs' Third-partyBenefi ciary Claims Are Not Ba:red by -Res Judícata.

Page

21

26

29

F.

G.

11



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 31

Filing ofthe Plaintiffs' Lawsuit, the Plaintiffs' Rights to Bring Claims in

Promissory Estoppel Could Not Be Extinguished Because Their RightsHad Vested, 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 That the Plaintiffs' Claims Based upon

Promissory Estoppel Are Not Barred by Res Judicata.

I. Where the Undisputed Facts Establish (A) That the Plaintiffs Had No 32

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 Actionor 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 That the

Plaintiffs' Claims as Members of the Association Are Not Barred by Res

Judicata.

VII. CONCLUSION 34

VIII. ORDER APPEALED FROM 36

iii

H. Where the Undisputed Facts Establish (A) That the Plaintiffs Had NoPersonal Ilrvolvement in the Prior Lawsuit, (B) That, as ofthe Time of theFiling of the Plaintiffs' Lawsuit, the Plaintiffs' Rights to Bring Claims in

Promissory Estoppel Could Not Be Extinguished Because Their RightsHad Vested, and (C) in Any Case, That Neither the Plaintiffs PersonallyNor the Alum¡i in General Had Taken Any Action or Authorized theExecutive Committee of the Asso ciation to Take Any Action to Extinguishthe As sociation' s or the Alumni' s Legal Ri ghts to P arity, Such UndisputedFacts Compel a Ruling in this Case That the Plaintiffs' Claims Based uponPromissory Estoppel Are Not Barred by i?es Judicata.

'Where the Undisputed Facts Establish (A) That the Plaintiffs Had NoPersonal Involvement in the Prior Lawsuit, (B) That Both the Associationand the Plaintiffs, as Individual Members Thereof, Have Standing to Sueto Enforce the 1891 Agreement, md (C) in Any Case, That Neither the

Plaintiffs PersonallyNor the Alumni in General Had Taken AnyActionor Authorized the Executive Committee of the Association to Take AnyAction to Extinguish the Association's or the Alumni's Legal Rights toParity, Such Undisputed Facts Compel a Ruling in this Case That thePlaintiffs' Claims as Members of the Association Are Not Ba:red by.ResJudicata.

Page

31

32

Vtr. CONCLUSION. .....34

VIII. ORDERAPPEALEDFROM ......36

I.

111



II. TABLE OF AUTHORITIES

CASES Page

Aranson v. Schroeder, 140 N.H. 359 (1995).. . 30

Association of Alumni of Dartmouth College v. Trustees of Dartmouth College.Grafton Superior Court #07-E-289 3

Beliveau v. Amoskeag Manufacturing Co., 68 N.H. 225 (1894).. . 22,26

Bowker v. Nashua Textile Co., Inc., 103 N.H. 242 (1961) 20

Bricker v. New Hampshire Medical Society, 110 N.H. 469 (1970) 1,26-29

Brzica v. Trustees of Dartmouth College, 147 N.H. 443 (2002) 26-29

Burtman v. Butman, 94 N.H. 412 (1947) 22

Daigle v. Portsmouth, 129 N.H. 561 (1987) 30

Dunlop v. Pan American World Airways, Inc., 672 F.2d 1044 (2nd Cir., 1982) 22

Great Lakes Aircraft Co., Inc. v. City of Claremont, 135 N.H. 270 (N.H. 1992) 20

Grossman v. Murray, 144 N.H. 345 (1999). , 15

Guarantee Trust & Safe-Deposit Co. v. Duluth &W.R. Co., 70 F. 803 (D.C. Minn., 1895) 22

Hill-Grant Living Trust v. Kearsage Lighting Precinct, 159 N. H. 529, 532 (2009) 14

Hubleyv. Goodwin, 91 N.H. 200 (1940) 22,26

In re: Zachary, _ N.H. _, _ (July 31, 2009) 28

Indian Head Nat. Bank ofDerrvv. Simonsen, 115 N. H. 282 (1975) 26

Israel v. Car,penter, 120 F.3d 361 (2d Cir., 1997) 23

Kalil v. Town of Dummer Zoning Board of Adjustment, _ N. H. _(February 11, 2010) 14

Kessler v. Gleich, 156 N.H. 488 (2007) 33

Marburyv. Madison, 5 U.S. 137, 163 (1803) 18

Merchants Mutual Casualty Co. v. Kiley, 92 N.H. 323 (1943).. . 21

Moore v. Lebanon, 96 N.H. 20 (1949) 22,26

Public Service Co. of N.H. v. Hudson Light &Power, 938 F.2d 338 (1st Cir. 1991) 17

Shortlidge v. Gutoski, 125 N.H. 510 (1984) 19

South Willow Properties. LLC v. Burlington Coat Factory of New Hampshire, LLC,

_N. H. _ (December 16,2009) 14

IV

II. TABLE OF AUTHORITIES

CASES Page

Aranson v. Schroeder, 140 N.H. 359 (1995). . . . . 30

GraftonSuperiorCourt#07-E-289 .....3Beliveau v. Amoskeag Manufacturing Co., 68 N.H. 225 (1894). . . . 22,26

Bowker v. Nashua Textile Co.. Inc., 103 N.H. 242 (1961) . . . . . .20

Bricker v. New Hampshire Medical Society, 110 N.H. 469 (1970) . . 7,26-29

Brzica v. Trustees of Darhnouth Colleæ, 147 N.H. 443 Q002). . . . 26-29

Burhnanv. Butman,94N.H. 412(1947) ........22Daigle v. Portsmouth, 129 N.H. 561 (1987) . . . . . 30

Dunlop v. PanAmericanWorldAirways.Inc.,6T2F.2d1044 (2ndClr,1982). ..... ..22Great Lakes Aircraft Co.. Inc. v. Citv of Claremont, 135 N.H. 270 (N.H. 1992). . . . . . .20

Grossmanv.Muna-'¡, 144N.H.345 (1999) .......15Guarantee Trust & Safe-Deposit Co. v. Duiuth &'W.R. Co., 70 F. 803 (D.C. Minn., 1895) . . .22

Hill-Grant Living Trust v. Kearsage Liehting Precinct, 159 N. H. 529,532 (2009) . . . . 74

Hubleyv.Goodwin,9lN.H.200(1940) .....22,26Inre: Zachary, _N.H. _, _(July 31, 2009) . . . . .28

Indian Head Nat. Bank of Derry v. Simonsen, 115 N. H.282 (1975) . . . .26Israelv. Carpenter, 120 F.3d 361 (2dCir.,7997). ........23Kalil v. Town of Dummer Zoning Board of Adjustrnent, _ N. H. _(February 11,2010). . . 14

Kessler v. Gleich, 156 N.H. 488 (2007) . . . 33

Marburyv.Madison,5U.S. 137,163 (1803) .....18Merchants Mutual Casualtv Co. v. Kiley, 92 N.H. 323 (1943). . . . . . . .27

Moore v. Lebanon, 96 N.H. 20 (1949). 22,26

Public Service Co. of N.H. v. Hudson Ligùrt & Power, 938 F.2d 338 (lst Ct. 1991). . . .17

Shortlidgev. Gutoski. 125N.H.510(1984) .......19

-N.H.-(December76,2009)............14

1V



Page

State ofNH v. Charpentier, 126 N.H. 56 (1985) 28

Town of Plaistow v. Riddle, 143 N.H. 307 (1996) 23

Tsiatsios v. Tsiatsios, 144 N.H. 438 (1999) 30

Warner Companyv. Sutton, 637 A.2d 960 (N.J. Super., 1994) 22

Waters v. Hedberg, 126 N.H. 546 (1985) 30

OTHER

Restatement (Second) of Contracts §90 20

Restatement (Second) of Contracts §302(1)(b).. . 15,18

Restatement (Second) of Contracts §304 18

Restatement (Second) of Contracts §311(3) 30

Restatement (Second) of Judgments §20 23


Restatement (Second) of Judgments §28(5) .. . 28



Restatement (Second) of Judgments §42.. . 22

Restatement (Second) of Judgments §56(1) 30-31Restatement (Second) of Judgments §59(3) .. . 30


Federal Rule Civil Proc. 60(b) 22

5Wiebusch, New Hampshire Practice, Civil Practice and Procedure §34.09 9

v

Paæ

State ofNH v. Charpentier, 126 N.H. 56 (1985) . . . . . . .28

Town of Plaistow v. Riddle, 143 N.H. 307 (1996) . . . . . . .23

Tsiatsiosv. Tsiatsios, 144N.H.438 (1999) ......30Wamer Compan)¡v. Suttõn,637 A.2d 960 (N.J. Super., 1994) . . . . . .22

Waters v. Hedberg, 126 N.H. 546 (1985) . . . 30

OTHER

Restatement (Second) of Contracts $90. ........20Restatement (Second) of Contracts $302(1)O). . . . . 15,18

Restatement(Second)of Contracts $304 ........18

Restatement(Second)of Contracts $311(3). ......30Restatement (Second) of Judgments $20 . . .23

Restatement(Second)ofJudgments $27. .......30Restatement (Second) of Judgments $28(5) . . . . .28

Restatement(Second)ofJudgments $35. .......33Restatement(Second)ofJudgments $39. .......30Restatement(Second)ofJudgments $42. ........22Restaternent (Second)

of Judgments $56(1). . . . 30-31Restatement(Second)ofJudgments $59(3).. ...30Restatement (Second) of Judgments $61 . . . . 33

Federal Rule Civil Proc. 60(b) . . . .22

5 Wiebusch, New Hampshire Practice, Civil Practice and Procedure $34.09 . . , . 9



III. QUESTIONS PRESENTED

1. Where 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, was the Superior Court in error in ruling that the Plaintiffs do not have

standing as third-party beneficiaries to sue in their own names to enforce this contract? [Issue

raised in Plaintiffs' Objection to College's Motion for Summary Judgment, App. A, p. 19-26]

2. The Superior Court assumed that the Plaintiffs do have standing as members of

the Association to bring suit in their own names to enforce the 1891 Agreement. Do the

undisputed facts indeed confirm that the Superior Court's assumption was correct and, therefore,

is such a ruling compelled in this case? [Issue raised in Plaintiffs' Objection to College's Motion

for Summary Judgment, App. A, p. 17-19]

3. Even if the 1891 Agreement is not deemed to be a contract between the

Association and the College, do 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 thedoctrine of promissory estoppel to sue in their own names to enforce the College's promises?

[Issue raised in Plaintiffs' Objection to College's Motion for Summary Judgment, App. A, p. 26-

27]

4. Even if the filing of a "with prejudice" voluntary dismissal of the Prior Lawsuit

might, in ordinary circumstances, have provided a basis for the College's assertion of the

defense of res judicata, should the College be denied the opportunity to avail itself of such a

defense in this case where the undisputed facts establish (a) that the Association's Executive

Committee had not 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 nothing in return for the Executive Committee's dismissal of the PriorLawsuit "with prejudice," and (c) that the College itself colluded with the Association's

Executive Committee and orchestrated the preparation and filing of the "with prejudice"

dismissal in such a manner that the alumni would not find out about it until it was too late? [Issue

raised in Plaintiffs' Objection to College's Motion for Summary Judgment, App. A, p. 34-39]

5. Was the Superior Court (and is this Court) barred by the so-called Bricker

doctrine from inquiring into the irregularities surrounding the preparation and filing of the "with

prejudice" dismissal of the Prior Lawsuit [see Question # 4, above] where the actions of the

Association's Executive Committee in withdrawing the Prior 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 is not the Association, but is instead the College? [Issue raised in Plaintiffs'

Objection to College's Motion for Summary Judgment, App. A, p.39, n. 48]

6. 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,

1

III. QUESTIONS PRESENTED

1. Where the undisputed facts establish that the parties to the 1891 Agreementintended and expected alumni such as the Plaintifß to be individually benefited by and haverights under the contract, was the Superior Court in eror in ruling that the Plaintiffs do not havestanding as third-party beneficiaries to sue in their own names to enforce this contract?

flssueraised in Plaintiffs' objection to College's Motion for Summary Judgment, App.A, p.19-261

2. The Superior Court assumed that the Plaintifß do have standing as members ofthe Association to bring suit in their own names to enforce the 1891 Agreønent. Do theundisputed facts indeed confirm that the Superior Court's assumption was correct and, therefore,is such a ruling compelled in this case? flssue raised in Plaintiffs' Objection to College's Motionfor Summary Judgment, App. A, p. 17-l9l

3. Even if the 1891 Agreement is not deemed to be a contract between theAssociation and the College, do the Plaintiffs, as persons who the undisputed facts establish thatthe College should reasonably have expected to rely upon its promises regarding púty and who

have in fact taken actions in reliance upon the College's said promises, have standing under thedoctrine of promissory estoppel to sue in their own names to enforce the College's promises?

flssue raised in Plaintiffs' Objection to College's Motion for Summary Judgment, App. A, p.26-271

4. Even if the filing of a "with prejudice" voluntary dismissal of the Prior Lawsuitmight, in ordinary circumstances, have provided a basis for the College's assertion of thedefense of res judicata, should the College be denied the opportunity to avail itself of such adefense in this case where the undisputed facts establish (a) that the Association's ExecutiveCommittee had not been authoizedby the alumni to take any action which would extinguish theAssociation's or the alumni's legal rights to parit¡ (b) that the Association and the alumni

received absolutely nothing in return for the Executive Committee's dismissal of the PriorLawsuit "w"ith prejudice," and (c) that the College itself colluded with the Association'sExecutive Committee and orchestrated the preparation and filing of the "with prejudice"dismissal in such a manner that the alumni would not find out about it until it was too late? [Issueraised in Plaintifß' objection to College's Motion for Summary Judgment, App. A, p.34-391

5. 'Was the Superior Cou¡t (and is this Court) baned by the so-called Brickerdoctrine from inquiring into the irregularities surrounding the preparation and filing of the "withprejudice" dismissal of the Prior Lawsuit lsee Question # 4, abovel where the actions of theAssociation's Executive Committee in withdrawing the Prior Lawsuit with prejudice did notinvolve some mere policy dispute over the Association's internal affairs, but instead arguablyeffected a relinquishment

ofimportant

legal rights of the Association and its members vis-à-visan outside third part¡ i.e., the College, and where the party attempting to claim the benefit of theBricker doctrine is not the Association, but is instead the College? flssue raised in Plaintiffs'Objection to College's Motion for Summary Judgment, App.A, p.39, n. 48]

6. 'Where the undisputed facts establish (a) that the Plaintiffs had no personalinvolvement 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 had

vested, (c) that there had been no trial on the merits and no judicial findings of fact in the Prior

Lawsuit, and (d) 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, was the Superior Court in error

in ruling in this case that the Plaintiffs' third-party beneficiary claims are barred by res judicata.

[Issue raised in Plaintiffs' Objection to College's Motion for Summary Judgment, App. A, p. 29-

30]


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 (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, was the

Superior Court in error in ruling in this case that the Plaintiffs' promissory estoppel claims are

barred by res judicata. [Issue raised in Plaintiffs' Objection to College's Motion for Summary

Judgment, App. A, p.30, n. 38]


involvement in the Prior Lawsuit and (b) 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, if both the

Association and the Plaintiffs, as individual members thereof, have standing to sue to enforce the

1891 Agreement, do such undisputed facts compel a ruling in this case that the Plaintiffs' claims

as members of the Association are not barred by res judicata. [Issue raised in Plaintiffs'

Objection to College's Motion for Summary Judgment, App. A, p. 28-29]

IV. STATEMENT OF THE CASE AND THE UNDISPUTED FACTS

This case (the "Current Lawsuit") is brought by seven individual alumnil

of Dartmouth

College nominally against the College. The Plaintiffs bring claims in their capacities as

members of Dartmouth's Association of Alumni (the "Association"), claims as third-party

beneficiaries of a contract between the Association and the College, and claims as promisees of

promises made by the College upon which the Plaintiffs relied. In each case, the substantive

right that the Plaintiffs seek to vindicate is their right to have the College seat on its governing

1Technically, the word "alumni" is the plural of the Latinmasculine noun "alumnus." The feminine counterparts

would be "alumnae" and "alumna." SinceDartmouth is now a co-educational institution, its graduates consist of

both alumni and alumnae. However, both because it is conventional to do soand for the sake ofsimplicity,we use

the term" alumni" to refer toboth.

2

the Plaintiffs' third-party beneficiary rights could not be extinguished because their rights hadvested, (c) that there had been no trial on the merits and no judicial findings of fact in the PriorLawsuit, and (d) in any case, that neither the Plaintifß personally nor the alumni in general hadtaken any action or authorized the Executive Committee of the Association to take any action toextinguish the Association's or the alumni's legal rights to parit¡ was the Superior Court in errorin ruling in this case that the Plaintiffs' third-party beneficiary claims are baned by res judicata.

flssue raised in Plaintiffs' Objection to College's Motion for Summary Judgment, App.A, p.29-301

7. Where the undisputed facts establish (a) that the Plaintiffs had no personalinvolvement 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 becausetheir rights had vested, and (c) in any case, that neither the Plaintiffs personally nor the alumniin general had taken any action or authorized the Executive Committee of the Association totake any action to extinguish the Association's or the alumni's legal rights to parity, was theSuperior Court in error in ruling in this case that the Plaintiffs' promissory estoppel claims are

barred by res judicata. flssue raised in Plaintiffs' Objection to College's Motion for Summary

Judgment, App.A, p.30, n. 38]

8. 'Where the undisputed facts establish (a) that the Plaintiffs had no personalinvolvement in the Prior Lawsuit and (b) that neìther the Plaintiffs personally nor the alumni ingeneral had taken any action or authorized the Executive Committee of the Association to takeany action to extinguish the Association's or the alumni's legal rights to parit¡ if both theAssociation and the Plaintiffs, as individual members thereof, have standing to sue to enforce the1891 Agreement, do such undisputed facts compel ä ruling in this case that the Plaintiffs' claimsas mernbers of the Association are not barred by res judicata. flssue raised in Plaintiffs'Objection to College's Motion for Summary Judgment, App.A, p.28-291

IV. STATEMENT OF THE CASE AND TIIE T]NDISPUTED FACTS

This case (the "Curent Lawsuit") is brought by seven individual alumnil of Dartmouth

College nominally against the College. The Plaintifß bring claims in their capacities as

members of Dartmouth's Association of Alumni (the "Association"), claims as third-party

beneficiaries of a contract between the Association and the College, and claims as promisees of

promises made by the College upon which the Plaintiffs relied. In each case, the substantive

right that the Plaintiffs seek to vindicate is their right to have the College seat on its goveming

r Technically, the word "alumni" is the plural of the Latin masculine noun "alumnus." The feminine counterPartswould be "alumnae" and "alumna." Since Dartnnouth is now a co-educational institution, its graduates consist ofboth alumni and alumnae. llowever, both because it is conventional to do so and for the sake of simplicity, we usethe te¡m "alumni" to ¡efer to both.



board an equal number of trustees selected by the alumni to that number of trustees selected for

the position by the College itself. This right is customarily referred to at Dartmouth as the

alumni's right to "parity."

A. The PriorLawsuit

The Association had previously sought to vindicate the alumni's right to parity by

bringing suit against the College in 2007. Association of Alumni of Dartmouth College v.

Trustees of Dartmouth College, Grafton Superior Court #07-E-289 (the "Prior Lawsuit"). The

College attempted to obtain an early disposition of the case by filing a motion to dismiss. On

February 1, 2008, the Court (Vaughan, Presiding Justice), denied the College's motion (App. A,

pp. 49-63i. In its order, the Court summarized the nineteenth century origin of the alumni's

right to parity, the history of its implementation over the next 100+ years and the College's

recent effort to abrogate it as follows (App. A, pp. 50-51):

Dartmouth College was founded in 1769. Under the Dartmouth College Charter, the

College is governed by a Board of Trustees ("Board"). Between 1769 and 1891, the

Trustees of Dartmouth College designated their own successors, who exercised

authority and responsibility over the College governance without participation from

College alumni. Starting in the 1860s, the Association and its members beganpressing the College for alumni participation on the Board. (Petition ~8). The

dialogue between the Association and the College continued throughout the 1860s,

1870s and 1880s, (Pet. ~~9,10, and 11). In June of 1891, the College and the

Association reached an agreement that became known as the "1891 Agreement

(hereinafter referred to as the "Agreement").

There is no written memorialization signed by both parties setting forth the details of

the Agreement. However, the Agreement between the College and the Association is

independently reflected within a signed document of each organization. The College,

by its Board of Trustees, adopted resolutions on June 23, i891, that it said embodied

the Agreement. (Id.) The Association approved the Agreement at its annual meeting

on June 24, 1891 and incorporated a partial description of the Agreement into itsmeeting minutes. (Pet. ~15).

After the Association voted to accept the Agreement, it amended its constitution to

provide for the election of one-half of the College's non-ex officio trustees. (Pet. ~19).

2 The references herein to "App, AN are to the Plaintiffs' Objection to the College'SMotion for Summary Judgment

and the evidence submitted by the Plaintiffs in support thereof, filed herewith asAppendix A to this Brief.

3

board an equal number of trustees selected by the alumni to that number of trustees selected for

the position by the College itself. This right is customarily referred to at Dartmouth as the

alumni's right to "partty."

A. The Prior Lawsuit

The Association had previously sought to vindicate the alumni's right to parity by

bringing suit against the College in 2007. Association of Alumni of Dartmouth College v.

Trustees of Dartmouth College, Grafton Superior Court #07-E-289 (the "Prior Lawsuit"). The

College attønpted to obtain an early disposition of the case by filing a motion to dismiss. On

February 1, 2008, the Court (Vaughan, Presiding Justice), denied the College's motion (App. A,

pp. 49-63)2. In its ordet, the Court summarized the nineteenth century origin of the alumni's

right to parity, the history of its implementation over the next 100+ years and the College's

recent effort to abrogate it as follows (App. A, pp. 50-51):

Dartmouth College was founded n 1769. Under the Dartmouth College Charter, theCollege is governed by a Board of Trustees ("Board"). Between 1769 and 1891, theTrustees of Dartmouth College designated their owTt successors, who exercisedauthority and responsibility over the College governance without particþation from

College alumni. Starting in the 1860s, the Association and its members beganpressing the College for alumni particþation on the Board. (Petition fl8). Thedialogue between the Association and the College continued throughout the 1860s,1870s and 1880s, (Pet. tffl9,10, and 11). In June of 1891, the College and theAssociation reached an agreement that became known as the "1891 Agreønent(hereinafter referred to as the "Agreement").

There is no written memorialization signed by both parties setting forth the details ofthe Agreement. However, the Agreement between the College and the Association isindependently reflected within a signed document of each orgarrization. The College,by its Board of Trustees, adopted resolutions on June 23,1891, that it said embodiedthe Agreement. (Id.) The Association approved the Agreement at its annual meeting

on June 24, 7897 and incorporated a partial description of the Agreement into itsmeeting minutes. (Pet. !f15).

After the Association voted to accept the Agreement, it amended its constitution toprovide for the election of one-half of the College's îon-ex fficio trustees. (Pet. fl19).

2 The references herein to "App. N' are to the Plaintiffs' Objection to the College's Motion for Summary Judgmentand the evidence submitted by the Plaintiffs in support thereof, filed herewith as Appendix A to this Brief.



It circulated an appeal to its members for donations to the College (Pet. ~22), lifted a

public ultimatum opposing alumni contributions which had been in place while the

Association sought representation on the Board, and forbore from filing a lawsuit

against the Board. (Pet. ~~24, 33, 42).

Following the Agreement, the Board would be composed of two "ex officio trustees,"

namely, the President of the College and the Governor of the State of NewHampshire, and, pursuant to the agreement, the Alumni would seat one half of the

non-ex-officio trustees seats on the Board ("alumni trustees") and Dartmouth College

would hold the other half of the seats on the Board ("charter trustees"). Thereafter,

the board of trustees would include an equal number of alumni trustees and charter

trustees (Petition ~16).

The parity between alumni trustees and charter trustees has continued up to the

present. The Board has been twice expanded, once in 1961 and again in 2003. (Pet.

~23). The College and the Association maintained the parity between alumni trustees'

and charter trustees' representation on both occasions. Id.

On September 8, 2007, the Board of Trustees adopted a resolution that increased the

total number of trustees to twenty-six. The resolution maintained the number of

alumni trustees at eight, while expanding the charter trustees' seats to sixteen.

In light of these facts and the allegations in the Association's complaint, the Court

concluded that the Association had sufficiently pled legally cognizable causes of action against

the College for breach of an express contract, breach of an implied-in-fact contract and

promissory estoppel. The Court, therefore, denied the College's motion to dismiss.

Undaunted, the College embarked upon a course of action designed to accomplish

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

lawsuit and thus avoid having to deal with the merits of the alumni's claim of a right to parity.

The vehicle for this was the annual election of new members of the Executive Committee of the

Association. Throughout the Spring of 2008, two slates of candidates, one known as the "Unity

Slate" and the other known as the "Parity Slate," waged a vigorous contest for the Executive

Committee positions. The Unity Slate ran on a platform favoring preservation of the alumni's

4

It circulated an appeal to its membe¡s for donations to the College (Pet.fp2),lifted apublic ultimatum opposing alumni contributions which had been in place while theAssociation sought representation on the Board, and forbore from filing a lawsuitagainst the Board. (P et. llp4, 33, 42).

Following the Agreement, the Board would be composed of two "ex fficio trustees,"

namel¡ the President of the College and the Governor of the State of NewHampshire, and, pursuant to the agreement, the Alumni would seat one half of thenon-ex-fficio trustees seats on the Board ("alumni trustees") and Dartmouth Collegewould hold the other half of the seats on the Board ("charter trustees"). Thereafter,the board of trustees would include an equal number of alumni trustees and chartertrustees (Petition !f 1 6).

The parity between alumni trustees and charter trustees has continued up to thepresent. The Board has been twice expanded, once in 1961 and again in 2003. (Pet.

fl23). The College and the Association maintained the parity befween alumni trustees'and charter trustees' representation on both occasions. Id.

On Septemb er 8, 2007 , the Board of Trustees adopted a resolution that increased thetotal number of trustees to twenty-six. The resolution maintained the number ofalumni trustees at eight, while expanding the charter trustees' seats to sixteen.

In light of these facts and the allegations in the Association's complaint, the Court

concluded that the Association had sufficiently pled legally cognizable causes of action against

the College for breach of an express contract, breach of an implied-in-fact contract and

promissory estoppel. The Court, therefore, denied the College's motion to dismiss.

Undaunted, the College ernbarked upon a course of action designed to accomplìsh

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

lawsuit and thus avoid having to deal with the merits of the alumni's claim of a right to parity.

The vehicle for this was the annual election of new members of the Executive Committee of the

Association. Throughout the Spring of 2008, two slates of candidates, one known as the "Unity

Slate" and the other known as the "Parity Slate," waged a vigorous contest for the Executive

Committee positions. The Unity Slate ran on a platfo.- furro¡ng preservation of the alumni's



right to parity through negotiation, rather than litigation.' Accordingly, while the Parity Slate

supported pressing on with the litigation, the Unity Slate pledged that, if elected, they would

dismiss the Prior Lawsuit."

The ballots cast in the election were tallied up and the results announced at the general

meeting of the Association of Alumni held on June 10, 2008. (App. A, pp. 70-72). The Unity

Slate won. On that very same evening, the new Executive Committee met by telephone and

adopted the following resolutions (App. B, p. 128)5:

RESOLVED, that effective immediately any and all authority previously

delegated to Frank Gado to act in any manner for the Association of Alumni of

Dartmouth College ("Association of Alumni") as Liaison for Legal Affairs

("Liaison") or in any other capacity in connection with (a) the lawsuit filed by theassociation of Alumni in New Hampshire Superior Court (Docket No. 07-E-0289)

against the Trustees of Dartmouth College ("the Lawsuit"); or (b) the law firm of

Williams & Connolly and/or Hatem & Donovan, including but not limited to all

authority delegated by the' resolutions of the Executive Committee of August 23,

2007 and October 2, 2007, is hereby revoked and rescinded.

RESOLVED, that effective immediately the Executive Committee hereby

designates the President of the Association of Alumni of Dartmouth College

("Association of Alumni"), John Mathias '69, as its Liaison for Legal Affairs, and

delegates him full power and authority (1) to oversee and direct the work of Williams

& Connolly and Hatem & Donovan; (2) to take any and all actions necessary toobtain the prompt dismissal of the lawsuit filed by the Association of Alumni in New

Hampshire Superior Court (Docket No. 07-E-0289) against the Trustees of

Dartmouth College ("the Lawsuit "); and (3) at his discretion, to engage new or

additional counsel to represent the Association of Alumni in the Lawsuit.

3 The campaign materials of the Unity Slate (also known as the "Dartmouth Undying" slate) were clearly intended toconvey the message that its members supported parity. (App. A, p. 115) For example, the following statement wasposted on their website: "Our slate is fully committed to working constructively with the Trustees to address theissue of alumni governance and 'parity' in true dialogue, and not in the New Hampshire state courts or legislature.The Trustees, all of whom are fellow Dartmouth alumni except the President and the Governor of New Hampshire,welcome such dialogue. Dartmouth needs it, now more than ever." (App. A, p. 120) Indeed, had the Unity Slateeven hinted that they would give up the alumni's rights to parity, the slate would surely have been defeated because

this would have flaunted clear alumni sentiment in parity's favor. This sentiment had been documented severalmonths earlier in a poll of the alumni where they had voted almost ten to one in favor of retaining parity. (The poll

had been conducted by the former Executive Committee of the Association before it had filed the Prior Lawsuit.App. A, pp. 116-119)

4 The Unity Slate's campaign was essentially orchestrated and financed by the College. (App. A, pp. 64-69).

5 The references herein to "App, B" are to the College's Motion for Summary Judgment and the evidence submitted by the

College in support thereof, filed herewith as Appendix B to this Brief.

5

right to parity through negotiation, rather than litigation.3 Accordingly, while the Parity Slate

supported pressing on with the litigation, the Unity Slate pledged that, if elected, they would

dismiss the Prior Lawsuit.a

The ballots cast in the election were tallied up and the results announced at the general

meeting of the Association of Alumni held on June 10, 2008. (App. A, pp. 70-72). The Unity

Slate won. On that very same evening, the new Executive Committee met by telephone and

adopted the following resolutions (App. B, p. 128)5:

RESOLVED, that effective immediately aly and all authority previouslydelegated to Frank Gado to act in any mânner for the Association of Alum¡i ofDartmouth College ("Association of Alumni") as Liaison for Legal Affairs

("Liaison") or in any other capacity in connection with (a) the lawsuit filed by theassociation of Alumni in New Hampshire Superior Court (Docket No. 07-E-0289)against the Trustees of Dartmouth College ("the Lawsuit"); or (b) the law finn ofWilliams & Connolly and/or Hatem & Donovan, including but not limited to allauthority delegated by the resolutions of the Executive Committee of August 23,2007 and October 2,2007, is hereby revoked and rescinded.

RESOLVED, that effective immediately the Executive Committee herebydesignates the President of the Association of Alumni of Darmouth College("Association of Alumni"), John Mathias '69, as its Liaison for Legal Affairs, anddelegates him full por,ver and authority (1) to oversee and direct the work of Williams

& Connolly and Hatem & Donovan; (2) to take any and all actions necessary toobtain the prompt dismissal of the lawsuit filed by the Association of Alumni in NewHa:rrpshire Superior Court (Docket No. 07-E-0289) against the Trustees ofDartrnouth College ("the Lawsuit "); and (3) at his discretion, to engage new oradditional counsel to represent the Association of Alumni in the Lawsuit.

3 The campaign materials of the Unity Slate (also known as the 'Dartmouth Undying" slate) were clearly intended toconvey the message that its members supported parity. (App. A, p. 115) For example, the following statement wasposted on their website: "Our slate is fully committed to working constructively with the Trustees to address theissue of alumni governance and 'parity' in true dialogue, and not i¡ the New Hampshire state courts or legislature.The Trustees, all of whom are fellow Dartmouth alumni except the President and the Governo¡ of New Hampshire,welcome such dialogue. Dartmouth needs it, now more than ever." (App. A, p. 120) Indeed, had the Unity Slateeven hhted that they would give up the alumni's rights to parit¡ the slate would surely have been defeated because

this would have flaunted clear alumni sentiment in parity's favor. This sentiment had been documented severalmonths earlier in a poll of the alumni where they had voted almost ten to one in favor of retaining parity. (The pollhad been conducted by the forrner Executive Committee of the Association before it had filed the Prior Lawsuit.App.A, pp. 116-119)

4 The Unity Slate's campaign was essentially orchestrated and financed by the College. (App. A, pp.64-69).

5 The references herein to "App. B" are to the College's Motion for Summary Judgment a¡rd the evidence submitted by theCollege in support thereof, filed herewith as Appendix B to this Brief.



Note that neither resolution contains any express direction or even the hint of a suggestion that

the Prior Lawsuit might be dismissed with prejudice.6

In any case, that is exactly what happened. Moreover, as reflected in internal documents

of the College obtained in discovery by the Plaintiffs in the Current Lawsuit, the College played

the leading role in this event. To begin with, the initial draft of the two above-quoted resolutions

which were passed by the Association's newly-elected Executive Committee on June 10, 2008

was prepared by General Counsel for the College, Attorney Robert Donin. (App. A, p. 75, bullet

#1)7 Attorney Donin was also the one who recommended that the Association hire Attorney

Russell Hilliard as its new counsel and, at the request of Mr. Mathias, the Executive Committee's

newly-designated Liaison for Legal Affairs, he was the ·one who made the initial contact with

Attorney Hilliard. (App. A, p. 76, bullet #4; App. A, pp. 78-81) And finally - although not

disclosed to Attorney Hilliard at the time'' - it was Attorney Donin who saw to it that the College

helpfully paid all of Attorney Hilliard's legal fees. (App. A, p. 86)

According to his bill for professional services, Attorney Hilliard was hired on June 12,

2008. (App. A, p. 78) On that day, he had a telephone conference with Mr. Mathias and

Attorney Donin, at which time he presumably received his marching orders. (Ibid) Four days

later, Attorney Hilliard filed his appearance for the Association in the Grafton County Superior

Court and on the very next day, June 17, he emailed counsel for the College, Attorneys Donin,

6 Equally telling is the fact that the minutes of the meeting, which were posted on the Association's website for the alumni to

read, reflect no discussion of such a possibility. CAppoB, p. 128) Indeed, according to the minutes, the meeting lasted only 8

minutes. (Ibid.)

7 According to the College, this draft was prepared by Attorney Donin at the request of David Spalding, the Secretary-Treasurer

of the Association's Executive Committee. (App. A, p. 75, bullet #1) Mr. Spalding, however, worked both sides of theAssociation/College street. He was indeed a member of the Association's Executive Committee, having been elected as amember of the Unity Slate. On the other hand, Mr. Spalding was also Dartmouth's Director of Alumni Affairs and an employee

of the College.

8 In response to an Interrogatory from the Plaintiffs in the Current Lawsuit concerning who paid his legal fees, Attorney HiIIiard

answered, "I have learned in preparing these answers that my bills were paid by Dartmouth College." (App. A, p. 84, answer to

Interrogatory No. 13)

6

Note that neither resolution contains any express direction or even the hint of a suggestion that

the Prior Lawsuit might be dismisse dwith prejudice.6

In any case, that is exactly what happened. Moreover, as reflected in internal documents

of the College obtained in discovery by the Plaintiffs in the Current Lawsuit, the College played

the leading role in this event. To begin with, the initial draft of the two above-quoted resolutions

whichl¡¡ere passed by the Association's newly-elected Executive Committee on June 10, 2008

was prepared by General Counsel for the College, Attorney Robert Donin. (App. A, p. 75, bullet

#l)' Attorney Donin was also the one who recommended that the Association hire Attorney

Russell Hilliard as its new counsel and, atthe request of Mr. Mathias, the Executive Committee's

newly-designated Liaison for Legal Affairs, he was the one who made the initial contact with

Attorney Hilliard. (App. A,p.76, bullet #4; App. A, pp. 78-81) And finally - although not

disclosed to Attomey Hilliard at the time8 - it was Attorney Donin who saw to it that the College

heþfully paid all of Attorney Hilliard's legal fees. (App. A, p. 86)

According to his bill for professional services, Attorney Hilliard was hired on June 12,

2008. (App. A, p. 78) On that day, he had a telephone conference with Mr. Mathias and

Attomey Donin, at which time he presumably received his marching orders. (Ibid) Four days

later, Attorney Hilliard filed his appearance for the Association in the Grafton County Superior

Court and on the very next day, June 17, he emailed counsel for the College, Attorneys Donin,

6 Equally telling is the fact that ihe minutes of the meeting, which were posted on the Association's website for the alumni toread, reflect no discussion of such a possibility. (App. B, p. 128) Indeed, according to the minutes, the meeting lasted only 8

minutes. (Ibdl

7 According to the College, this d¡aft was prepared by Attorney Donin at the request of David Spalding, the Secretary-Treas¡¡erof the Association's Exeõutive Committee. (App. A, p. 75, bullet #1) Mr. Spalding, however, worked both sides of theAssociation/College street. He was indeed a mèmber of the Association's Executive Committee, having been elected as a

membe¡ of the Unity Slate. On the other hand, Mr. Spalding was also Dartmouth's Director of Alumni Affairs and an employeeofthe College.

8 Io ,".ponr" to an Interrogatory from the Plaintiffs in the Current Lawsuit conceming who paid his legal fees, Attorney Hilliardanswered, "I have leamed in preparing these answers that my bills were paid by Dartmouth College." (App. A, p. 84, answer toInterrogatoryNo. 13)



Richard Pepperman (New York counsel for the College) and Bruce Felmly (outside local counsel

for the College), as follows: "Can we speak some time today about discontinuance of this

matter?" (App. A, p. 87) After then speaking by telephone with Attorney Pepperman (App. A,

p. 78; App. A, p. 76, bullet #6), Attorney Hilliard prepared and circulated a draft of a proposed

docket marking (App. A, p. 87). The document was designed to be filed by the Association and

stated simply: "The plaintiff in the above matter hereby takes a voluntary non-suit with

prejudice." (App. A, p. 90) In his email which accompanied his draft docket marking, Attorney

Hilliard inquired of the addressees, Attorney Pepperman and Attorney Bruce Felmly: "Is it

really this simple?" (App. A, p. 87) Attorney Felmly promptly responded as follows: "It is

commonly done as simply as you have done it." (App. A, p. 91) Apparently satisfied, Attorney

Hilliard replied: "[A]re we ready to file this?" (App. A, p. 91) At this point, however, Attorney

Pepperman - obviously having some second thoughts about the matter - put the brakes on; his

email back to Attorney Hilliard reads as follows: "If possible, I'd like to discuss an issue with

Bruce Felmly when he frees up tomorrow." (App. A, p. 91)

Two days later, on June 19, Attorneys Pepperman and Felmly left a message for Attorney

Hilliard to the effect that they wished to hold off the filing of the docket marking because "[we]

may want to re-work the language slightly." (App. A, p. 92) Later that day, Attorney Felmly

sent a revealing email to Attorneys Pepperman and Hilliard (with a copy to Attorney Donin).

The email describes Attorney Felmly's legal research on the res judicata effects of the various

ways that had traditionally been used in New Hampshire to withdraw a civil action without a trial

on the merits. (App. A, p. 93) The obvious focus of Attorney Felmly's research was on how the

parties should craft the dismissal so as to have the best chance to bulletproof the lawsuit from

potential subsequent efforts to revive it. In summary, Attorney Felmly suggested that rather than

7

Richard Peppennan (New York counsel for the College) and Bruce Felmly (outside local counsel

for the College), as follows: "Can we speak some time today about discontinuance of this

matter?" (App. A, p. 87) After then speaking by telephone with Attomey Pepperman (App. A,

p.78; App. A, p.76, bullet #6), Attomey Hilliard prepared and circulated a draft of a proposed

docket marking (App. A, p. 87). The document was designed to be filed by the Association and

stated simply: "The plaintiff in the above matter hereby takes a voluntary non-suit with

prejudice." (App. A, p. 90) In his email which accompanied his draft docket marking, Attomey

Hilliard inquired of the addressees, Attorney Pepperman and Attorney Bruce Febnly: "Is it

really this simple?" (App. A, p. 87) Attorney Felmly promptly responded as follows: "It is

commonly done as simply as you have done it." (App. A, p. 91) Apparently satisfied, Attomey

Hilliard replied: "[A]re we ready to file this?" (App. A, p. 91) At this point, however, Attorney

Pepperman - obviously having some second thoughts about the matter - put the brakes on; his

elnail back to Attomey Hilliard reads as follows: "If possible, I'd like to discuss an issue with

Bruce Felrnly when he frees up tomorrow." (App. A, p. 91)

Two days later, on June 19, Attorneys Pepperman and Felmly left a message for Attomey

Hilliard to the effect that they wished to hold off the filing of the docket marking because "[we]

may want to re-work the language slightly." (App. A, p. 92) Later that day, Attorney Felmly

sent a revealing email to Attomeys Peppennan and Hilliard (with a copy to Attorney Donin).

The email describes Attorney Feknly's legal research on the res judicata effects of the various

ways that had traditionally been used in New Hampshire to withdraw a civil action without a trial

on the merits. (App. A, p. 93) The obvious focus of Attomey Felmly's research was on how the

parties should".åft

,h" dismissal so as to have the best chance to bulleþroof the lawsuit from

potential subsequent efforts to revive it. In summary, Attorney Felmly suggested that rather than



the Association unilaterally filing a docket marking and rather than the Association taking a

"non-suit," the parties should jointly file a stipulation providing that the docket be marked

''voluntary dismissal with prejudice." (App. A, p. 93)

At this juncture, the lawyers agreed to schedule a teleconference among themselves and

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

conducted in the late morning of June 20, 2008. (App. A, p. 78; App. A, p. 76, bullet #10) In

the course of that call, they agreed upon a form of stipulation which was to be signed by counsel

for both the Association and the College andwhich would provide that the docket be marked

"Voluntarily dismissed with prejudice." Attorney Felmly then undertook to draft and circulate

the stipulation for signature. (App. A, p. 95) Finally, on June 23, after counsel for both sides

had signed it, Attorney Felmly mailed the stipulation to the Clerk of the Grafton County.-

Superior Court. (App. A, p. 99)

At this point, the College's PR machine shifted into high gear. On the same day that

Attorney Felmly mailed the stipulation to the court, Diana Lawrence, the Director of

Communications in the Office of Alumni Relations, sent an email to Mr. Mathias alerting him to

the fact that when the Court received the stipulation, there probably would be media inquiries

and that he, Mr. Mathias, would be "the most logical and ideal spokesperson" to respond. (App.

A, p. 101) In the meantime, however, she reported that, "The game plan does seem to still be not

to issue anything until the judge acts .... " (App. A, p. 101)

This "game plan" email from Ms. Lawrence provoked a telling exchange of

communications between Mr. Mathias and herself (with blind copies to David Spalding) as to

how the parties should deal with the public relations backlash that the filing of the stipulation

was likely to create. Most significant is Ms. Lawrence's observation that, "With respect to

8

the Association unilaterally filing a docket marking and rather than the Association taking a

"non-suit," the parties should jointly file a stþlation providing that the docket be marked

'loluntary dismissal with prejudice." (App. A, p. 93)

At this juncture, the lawyers agreed to schedule a teleconference among themselves and

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

conducted in the late morning of June 20, 2008. (App. A, p. 78 App. A, p. 76, bullet #10) In

the course of that call, they agreed upon a form of stipulation which was to be signed by counsel

for both the Association and the College and which would provide that the docket be marked

"Voluntarily dismissed with prejudice." Attorney Felmly then undertook to draft and circulate

the stipulation for signature. (App. A, p. 95) Finally, on June 23, after counsel for both sides

had signed it, Attorney Felrnly mailed the stipulation to the Clerk of the Grafton County -

Superior Court. (App.A, p. 99)

At this point, the College's PR machine shifted into high gear. On the same day that

Attorney Felmly mailed the stipulation to the court, Diana Lawrence, the Director of

Communications in the Office of Alumni Relations, sent an email to Mr. Mathias alerting him to

the fact that when the Court received the stþlation, there probably would be media inquiries

and that he, Mr. Mathias, would be "the most logical and ideal spokesperson" to respond. (App.

A, p. 101) In the meantime, however, she reported that, "The game plan does seem to still be not

to issue anything until the judge acts ... ." (App. A, p. 101)

This "game plan" email from Ms. Lawrence provoked a telling exchange of

communications between Mr. Mathias and herself (with blind copies to David Spalding) as to

how the parties should deal with the public relations backlash that the filing of the stipulation

was likely to create. Most significant is Ms. Lawrence's observation that, "With respect to



reporters' inquiries, I think:the most controversial question might be why the AoA, which is only

elected for a year, would file to withdraw a suit with prejudice and prohibit future executive

committees from acting differently." CAppoA, p. 102) For his part, Mr. Mathias, counseled

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

plan and keep a low profile "until the judge acts on the stipulation of dismissal." CAppoA, p. 105)

The stipulation was stamped in at the Grafton County Superior Court at 1:33 p.m.,

Tuesday, June 24, 2008. CAppoB, p. 131) After waiting one day, Attorney Hilliard - presumably

at the urging of Mr. Mathias - telephoned the Court on June 26 in an effort to get ajudicial sign-

off on the stipulation. CAppoA, p. 78) He did not have long to wait because on the very next

day, June 27, at 10:25 a.m., Judge Vaughan directed the entry of the following telephonic order:

"Stipulation approved; docket shall be marked in accordance therewith." CAppoA, p. 132)

Attorney Hilliard apparently learned of Judge Vaughan's approval of the stipulation later that

same day and his secretary promptly reported it to Attorneys Pepperman and Felmly and to Mr.

Mathias. CAppoA, p. 107) 9

Even though the Court had approved the stipulation, both the Association's new

Executive Committee and the College carefully avoided publicizing its specific terms. As David

Spalding put it in an earlier email to Mr. Mathias, "We are now working on a very minimal

release. It will only be used after we hear where this stands with the judge or if it leaks from the

other parties to the action." CAppoA, p. 106)10 True to his word, the press release which Mr.

Spalding's PR team issued on the afternoon of June 27 was indeed minimal CAppoA, p. 108):

9 The frenetic efforts of the lawyers for both sides to get Judge Vaughan to sign off on the docketmarking- although neitherlegally required nor customary in New Hampshire ( see generally,S Wiebusch, NEW HAMPSHIREPRACTICE,Civil Practiceand Procedure §34,09) - were undoubtedly motivated by an appreciation of the notion that, as a practical matter, judicialapproval of the stipulation would clotheit with a special aura of finality,

10 Mr. Spaulding's mention of possible leaks by "the other parties to the action" was a reference to four AlumniTrustees who had filed a pro se amicus brief in the Superior Court in favor of the Association's claims and whotherefore were copied on Attorney Felrnly's filing of the stipulation. Diana LawrenceobviouslysharedMr. Spaulding's

9

reporters' inquiries, I think the most controversial question might be why the AoA, which is only

elected for a year, would file to withdraw a suit with prejudice and prohibit future executive

committees from acting differently." (App. A, p. 102) For his part, Mr. Mathias, counseled

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

plan and keep a low profile "until the judge acts on the stþulation of dismissal." (App. A, p. 105)

The stþulation was stamped in at the Grafton County Superior Court at 1:33 p.m.,

Tuesday, Ivne 24,2008. (App. B, p. 131) After waiting one day, Attomey Hilliard - presumably

at the urging of Mr. Mathias - telephoned the Court on June 26 tn an effort to get a judicial sign-

off on the stipulation. (App. A, p. 78) He did not have long to wait because on the very next

day, June 27, at 10:25 a.m., Judge Vaughan directed the entry of the following telephonic order:

"Stipulation approved; docket shall be marked in accordance therewith." (App. A, p. 132)

Attorney Hilliard apparently leamed of Judge Vaughan's approval of the stipulation later that

same day and his secretary promptly reported it to Attomeys Pepperman and Felmly and to Mr.

Mathias. (App.A, p. 107) e

Even though the Court had approved the stipulation, both the Association's new

Executive Committee and the College carefully avoided publicizing its specific terrns. As David

Spalding put it in an earlier email to Mr. Mathias, "'W.e are now working on a very minimal

release. It will only be used after we hear where this stands with the judge or if it leaks from the

other parties to the action." (App. A, p. 106)10 T*" to his word, the press release which Mr.

Spalding's PR team issued on the afternoon of June 27 was indeed minimal (App. A, p. 108):

9 The frenetic efforts of the lawyers for both sides to get Judge Vaughan to sign off on the docket marking - although neitherlegally required nor customary in New Hampshire f_scc_esaçraUy. 5 Wiebusch, NEW HAMPSHIRE PRACIICE, Civil Practiceand Pro-cedu-¡e $34.09) - were undoubtedly motivated by an appreciation of the notion that, as a practical matter, judicialapproval of the stþulation would clothe it with a special aura of finality.

10 Mr. Spaulding's mention of possible leaks by "the other parties to the action" was a ¡eference to four AlumniTrustees who had filed a pro se amicus brief in the Superior Court in favor of the Association's claims and whothe¡efore were copied on Attorney Felmly's frling of the stipulation. Dia¡ra Lawrence obviously shared Mr. Spaulding's



The New Hampshire Superior Court, on June 27, issued an order approving the joint

stipulation filed by attorneys for Dartmouth College and the College's Association of

Alumni voluntarily dismissing the lawsuit brought by the Association in October 2007.

The Dismissal follows the recent election of the Association's new executive committee,

all of whom were committed to ending the lawsuit. The eleven executive committee

members were elected by a 60 percent majority, with a record 24,900 (38 percent) of

Dartmouth's more than 60,000 alumni voting in the election.

The lawsuit was filed in October, 2007 after a 6-3 vote by the Association's previous

executive committee. The lawsuit was opposed by the previous president of the

Association, Bill Hutchinson '76, as well as the executive committee of the Alumni

Council.

The Association did an even better job than the College of attempting to keep the lid on

any publicity about the terms of the dismissal. In a post on the Association's internet "blogspot"

on the afternoon of June 27, Mr. Mathias entered the following uninformative report: "This

morning the Court approved our voluntary dismissal of the lawsuit brought by the Association of

Alumni against the College." (App. A, p. 109)

The participants in these dismissal machinations had good reason to want to keep the

terms of the stipulation secret for they knew that others did not appreciate the significance of

what was being done. For example, the campus newspaper, The Dartmouth, published several

editorials in the June 23-27, 2008 timeframe while the stipulation was working its way through

the Grafton County Superior Court. Although the authors of these editorials obviously

understood that the Prior Lawsuit was being dismissed, they also assumed that if the efforts of

the Unity Slate to achieve a restoration of parity through negotiation were to fail, a new lawsuit

could be instituted. 11

concerns because she sent an email to Mr. Mathias right after the stipulation had been filed suggesting that because the fourtrustees might begin "blogging, emailing, and spinning," he should issue a pre-emptive press release. Mr. Mathias, a senior

litigation partner at the Chicago law firm of Jenner & Block, declined to act, reminding her, "that's why I say we should waituntil the judge issues the dismissal order." (App. A, p. 105)

11 For example, in a June 24, 2008 editorial, the writer advocated the following course of action: "If these talksagain prove fruitless, the new committee - yes, the same one that withdrew this lawsuit - must be prepared to file anew one to get what the alumni want. They are, after all, the elected representatives of the alumni." (App. A, p. 121)

10

The New Hampshire Superior Court, on June 27, issued an order approving the jointstipulation filed by attorneys for Dartmouth College and the College's Association ofAlumni voluntarily dismissing the lawsuit brought by the Association in October 2007.

The Dismissal follows the recent election of the Association's new executive committee,all of whom were committed to ending the lawsuit. The eleven executive committee

members were elected by a 60 percent majority, with a record 24,900 (38 percent) ofDarknouth's more than 60,000 alumni voting in the election.

The lawsuit was filed in October, 2007 after a 6-3 vote by the Association's previousexecutive committee. The lawsuit was opposed by the previous president of theAssociation, Bill Hutchinson '76, as well as the executive committee of the AlumniCouncil.

The Association did an even better job than the College of attempting to keep the lid on

any publicity about the terms of the dismissal. Úr a post on the Association's intemet "blogspot"

on the afternoon of June 27, Mr. Mathias entered the following uninformative report: "This

moming the Court approved our voluntary dismissal of the lawsuit brought by the Association of

Alumni against the College." (App. A, p. 109)

The participants in these dismissal machinations had good reason to want to keep the

terms of the stipulation secret for they knew that others did not appreciate the significance of

what was being done. For example, the campus newspaper, The Dartmouth, published several

editorials in the Jlur;re 23-27, 2008 timeframe while the stipulation was working its way through

the Grafton County Superior Court. Although the authors of these editorials obviously

understood that the Prior Lawsuit was being dismissed, they also assumed that if the efforts of

the Unity Slate to achieve a restoration of parity through negotiation were to fail, a new lawsuit

could be instituted.ll

concerns because she sent an email to Mr. Mathias right after the stþulation had been filed suggesting that because the fourtrustees might begin "blogging, emailing, and spinning," he should issue a pre-emptive press release. Mr. Mathias, a senio¡litigation partnsr at the Chicago law firm of Jenner & Blocþ declined to act, reminding her, "that's why I say we should waituntil the judge issues the dismissal order." (App. A, p. 105)

11 For example, in a June 24, 2008 editorial, the writer advocated the following course of action: "If these talksagain prove fruitless, the new committee - yes, the same one that withdrew this lawsuit - must be prepared to file a

ne\¡/ one to get what the alumni want. They are, after all, the elected representatives of the alumni." (App. A, p. 121)

10



On the other hand, those who were actually orchestrating the "with prejudice" dismissal

clearly grasped its potential adverse effects upon the alumni's legal rights to parity. For

example, Diana Pearson, another Dartmouth employee whose notes were obtained in discovery

by the Plaintiffs in the Current Lawsuit, recorded a conversation she had on June 30, 2008 with

David Spalding about discussions he had earlier had with John Mathias. (App. A, pp. 124-130)

Ms. Pearson's notes report that Mr. Spalding, either speaking for himself or for Mr. Mathias or

both, acknowledged that although the election was "Fought over lawsuit not parity," dismissing

the Prior Lawsuit in the manner that the parties did was intended to render "1891 dead forever,"

thereby "Ending parity- done deal." (App. A, p. 125) See also, App. A, p. 131 (email of David

Spalding of June 22, 2008 taking issue with a proposed public statement on the dismissal that

would have commented that the dispute about parity was still "far from over"). Mr. Mathias is

also recorded in Ms Pearson's notes as saying that what they had done caused him to be

"concerned pol." (App. A, p. 126) (The abbreviation "pol." presumably stands for "politically.")

Mr. Spaulding urged caution so as not to stir up the alumni; as he put it, "move slowly - board to

reflect, consult + then take action." (Ibid.).12

As things turned out, the concerns of the Association's new Executive Committee and of

the College that if someone learned of the terms of the stipulation, he/she might try to challenge

it were well founded. Despite all their efforts to keep secret the fact that the Prior Lawsuit was

being dismissed "with prejudice," a former member of the Association's Executive Committee,

Frank Gado, found out about it - and he did try to challenge it. On:the very same day that Judge

Vaughan issued his telephonic order signing off on the stipulation - but, as luck would have it,

12 Even the President of the College and an ex officio member of its Board of Trustees, James Wright, was concerned that the

dismissal of the lawsuit might not stick; for when he was informed by David Spalding on June 27 that "the judge has accepted thewithdrawal of the lawsuit with prejudice;" he responded via email as follows: "David - good news. good job. now we have tounderstand how comprehensive the 'with prejudice' concept is!" (App. A, p. 123) [Note: President Wright's ema.il name was"2X99q."]

11

On the other hand, those who were actually orchestating the "with prejudice" dismissal

clearly grasped its potential adverse effects upon the alumni's legal rights to parity. For

example, Diana Pearson, another Darbnouth employee whose notes were obtained in discovery

by the Plaintiffs in the Current Lawsuit, recorded a conversation she had on June 30, 2008 with

David Spalding about discussions he had earlier had with John Mathias. (App. A, pp. 124-130)

Ms. Pearson's notes report that Mr. Spalding, either speaking for himself or for Mr. Mathias or

both, acknowledged that although the election was "Fought over lawsuit not parit¡" dismissing

the Prior Lawsuit in the manner that the parties did was interided to render "1891 dead forever,"

thereby "Ending parrty - done deal." (App. A,p.I25) See also, App.A, p. 131 (email of David

Spalding of June 22,2008 taking issue with a proposed public statement on the dismissal that

would have commented that the dispute about panty was still "far from over"). Mr. Mathias is

also recorded in Ms Pearson's notes as saying that what they had done caused him to be

"concerned pol." (App. A, p. 126) (The abbreviation 'þo1." presumably stands for "politically.")

Mr. Spaulding urged caution so as not to stir up the alumni; as he put it, "move slowly - boa¡d to

reflect, consult * then take action." (Ibid.).l2

As things turned out, the concerns of the Association's new Executive Committee and of

the College that if someone learned of the terûis of the stþulation, helshe might try to challenge

it were well founded. Despite all their efforts to keep secret the fact that the Prior Lawsuit was

being dismissed "with prejudice," a fonner member of the Association's Executive Committee,

Frank Gado, found out about it - and he did try to challenge it. On the very same day that Judge

Vaughan issued his telephonic order signing off on the stipulation - but, as luck would have it,

12E r"o the President of the College a¡d at ex oficio member of its Board of Trustees, James Wright, was concemed that the

dismissal o was informed by David Spalding on June 27 thati'tlìe judge has accepted thewithdrawal dedviaemailasfollows: "David-goodnews. goo0¡oÉ. nowwe-havetounderstand concqlt is!" (App. A" p. 123) [Notè: President-Wright's email name was"2X999;'l

11



after the order had already been issued - Mr. Gado had a letter delivered to the Clerk of Court

requesting that the Court delay accepting any dismissal ofthe case. CAppoB, p. 134) Mr. Gado

requested that he and the other members of the "old" Executive Committee who had supported

filing the Prior Lawsuit be given an opportunity to consult with counsel to determine what new

course of action might be available to them. CAppoB, p. 134) However, because Judge Vaughan

had already issued his order, Mr. Gado's representative was informed that he was "too late."

CAppoB, p. 137, ~16)

On the other hand, despite his inability to do anything about it, Mr. Gado's persistence at

least overcame the College's disinformation campaign and resulted in the alumni being made

aware of the exact wording of the stipulation. 13

B. The CurrentLawsuit

During the pendency of the Prior Lawsuit, the College's Board of Trustees had instituted

a so-called "freeze" upon the filling of vacant Board seats. However, at its first meeting after

the dismissal of the litigation, in September, 2008, the Board voted to lift the freeze and to elect

five new Charter Trustees. This partially executed the Board's decision in the Fall of 2007 to

expand its membership by adding eight new Charter Trustees - but no corresponding new

Alumni Trustees, thus formally breaching parity. When the Board refused at its November, 2008

meeting to re-consider its decision and to match the appointment of the new Charter Trustees

with an equal number of new Alumni Trustees, it became apparent that the Unity Slate's strategy

of attempting to preserve parity through negotiation - if not a total farce - was at least a failure.

13 Mr. Gado subsequently attempted to intervene in the Prior Lawsuit and moved to have the "with prejudice" wording stricken

from the stipulation. (App. B, pp. 140-147) Judge Vaughan, however, denied Mr. Gado's Motion to Intervene (presumably

because he was too late) and, accordingly, Mr. Gado's Motion to Disallow Docket Marking in its Present Form was marked"moot." (App. B, p. 148)

12

afier the order had already been issued - Mr. Gado had a letter delivered to the Clerk of Court

requesting that the Court delay accepting any dismissal of the case. (App. B, p. 134) Mr. Gado

requested that he and the other members of the "old" Executive Committee who had supported

filing the Prior Lawsuit be given an opportunity to consult with counsel to detennine what new

course of action might be available to them. (App. B, p. 134) However, because Judge Vaughan

had already issued his order, Mr. Gado's representative was informed that he was "too late."

(App.B, p. 137, Jfl6)

On the other hand, despite his inability to do anything about it, Mr. Gado's persistence at

least overcame the College's disinformation campaign and resulted in the alumni being made

aware of the exact wording of the stþulation. 13

B. The Current Lawsuit

During the pendency of the Prior Lawsuit, the College's Board of Trustees had instituted

a so-called "freeze" upon the filling of vacant Board seats. However, at its first meeting after

the dismissal of the litigation, in September, 2008, the Board voted to lift the freeze and to elect

five new Charter Trustees. This partially executed the Board's decision in the Fall of 2007 to

expand its meurbership by adding eight new Charter Trustees - but no corresponding new

Alumni Trustees, thus formally breaching parity. When the Board refused at its November, 2008

meeting to re-consider its decision and to match the appointment of the new Charter Trustees

with an equal number of new Alumni Trustees, it became apparent that the Unity Slate's strategy

of atternpting to preserve parity through negotiation - if not a total farce - was at least a failure.

13 M.. Gudo subsequently attempted to intervene in the Prior Lawsuit and moved to have the "with prejudice" wording strickenfrom the. stipulation. (App. B, pp. 140-147) Judge Vaughan, however, denied Mr. Gado's Motion to Intervene þresumablybecause he was too late) and, accordingly, Mr. Gado's Motion to Disallow Docket Marking in its Present Form was marked"moot." (App.B, p. 148)

I2



Accordingly, seven individual alumni stepped forward and filed the Current Lawsuit. (App. C,

pp. 17_38)14

C. The Plaintiffs

None of the Plaintiffs in the Current Lawsuit had any personal involvement in the Prior

Lawsuit. (App. B, Dartmouth Ex. BB through HR, pp. 310-337, Interrogatory #5. See also, App.

B, Dartmouth Ex. BB through HH, pp. 310-337, Interrogatory #7)

Each of the Plaintiffs is a graduate of Dartmouth and, by reason thereof, a member of the

Association. Paragraph 31 ofthe Petition further describes the Plaintiffs as follows:

The Plaintiffs and all other alumni have a special interest in Dartmouth's governance,

distinct from that of the general population, by dint of the 1891 Agreement, their relianceon the College's promises and actions, their having attended the College as students, their

continuing relationship to the College, their historical role in the selection of its trustees,

their financial and other contributions, and their ties of affection and loyalty. (App. C, p.

28)

By way of example, the affidavit of Plaintiff John Steel, III, a former Alumni Trustee, catalogs

some of the specific actions taken by him in reliance upon the 1891 Agreement and the College's

other promises of parity:

I personally have engaged in many of the foregoing activities in reliance upon the

College's agreements and promises that alumni would have the right to elect one-half of

the elected Board of Trustees, including but not limited to: making contributions over the

course of the last 50+ years to the College and to Dartmouth - affiliated organizations,

running and getting elected and serving as an Alumni Trustee on the Board, sending all

five of my children to Dartmouth, putting Dartmouth in my estate plan, raising funds

from others for Dartmouth and serving as an officer of my local Dartmouth Club. (App.

A, p. 43)

D. The Summary Judgment Motion

On July 17, 2009, after both sides had conducted extensive discovery, the College filed a

Motion for Summary Judgment seeking to dismiss the Current Lawsuit on the grounds (a) that

14 The references herein to "App. C" are to the Appendix C to this Brief which contains pleadings and orders other

than the College's Motion for Summary Judgment and the Plaintiffs' responses thereto, which are in Appendices Band A, respectively.

13

Accordingly, seven individual alumni stepped forward

pp. 17-38)ra

C. The Plaintiffs

and filed the Curent Lawsuit. (App. C,

None of the Plaintiffs in the Current Lawsuit had any personal involvement in the Prior

Lawsuit. (App.B, Dartrnouth Ex. BB through HH, pp. 3I0-33T,Interrogatory #5. See also. App.

B, Dartmouth Ex. BB through HH, pp. 370-33T,lnterrogatory #7)

Each of the Plaintiffs is a graduate of Dartmouth and, by reason thereof, a member of the

Association. Paragraph 31 of the Petition further describes the Plaintiffs as follows:

The Plaintiffs and all other alumni have a special interest in Darbmouth's govemance,

distinct from that of the general population, by dint of the 1891 Agreement, their relianceon the College's promises and actions, their having attended the College as students, theircontinuing relationship to the College, their historical role in the selection of its kustees,their financial and other contributions, and their ties of affection and loyalty. (App. C, p.28)

By way of example, the affidavit of Plaintiff John Steel, III, a former Alumni Trustee, catalogs

some of the specific actions taken by him in reliance upon the 1891 Agreement and the College's

other promises of parity:

I personally have engaged in many of the foregoing activities in reliance upon theCollege's agreements and promises that alumni would have the right to elect one-half ofthe elected Board of Trustees, including but not limited to: making contributions over thecourse of the last 50+ years to the College and to Darlmouth - affiliated organizations,running and getting elected and serving as an Alumni Trustee on the Board, sending allfive of my children to Dartmouth, putting Dartmouth in my estate plan, raising fundsfrom others for Darbmouth and serving as an officer of my local Darmouth Club. (App.4,p.43)

D. The Summary Judgment Motion

On July 17,2009, after both sides had conducted extensive discovery, the College filed a

Motion for Summary Judgment seeking to dismiss the Curent Lawsuit on the grounds (a) that

la The references he¡ein to "App. C" are to the Appendix C to this Brief which contains pleadings and orders otherthan the College's Motion for Summary Judgment and the Plaintiffs' responses thereto, which are in Appendices Band A, respectively.

T3



the Plaintiffs allegedly have no standing to sue to enforce the 1891 Agreement and (b) that all of

the Plaintiffs' claims are allegedly barred by the doctrine of res judicata on account of the filing

of the stipulation of dismissal "with prejudice" in the Prior Lawsuit. CAppoC, pp. 1-32) The

Plaintiffs filed a timely objection and memorandum oflaw in support thereof. CAppoA, pp. 1-41)

The Plaintiffs were joined in their opposition to the College's motion by Amicus Todd Zywicki,

a former Alumni Trustee.

The Superior Court heard oral argument on the College's motion for summary judgment

on December 4, 2009. On January 8, 2010, Judge Vaughan issued an order granting the

College's motion. (App. C, pp. 1-13) The Plaintiffs filed a timely Motion for Reconsideration, to

which the College objected. CAppoC, pp. 52-61 and 62-71) On February 5, 2010, Judge

Vaughan denied the Motion for Reconsideration. CAppoC, pp. 14-46) This appeal was timely

filed by the Plaintiffs on March 18, 2010.

V. SUMMARY OF ARGUMENT

1. The Plaintiffs have personal standing to sue to enforce the 1891 Agreement.

2. The stipulation filed by the Association and the College dismissing the Prior Lawsuit

"with prejudice" provides no resjudicata bar to the Current Lawsuit.

VI. ARGUMENT

A. PreliminaryMatters.

There are no disputes of material fact. Since the rulings by the Superior Court were

rulings of law, this Court is not bound to give any deference to the conclusions reached by the

Superior Court and all matters at issue should be decided de novo.IS

E.g., Hill-Grant Living

Trust V. Kearsage Lighting Precinct, 159 N. H. 529, 532 (2009).

IS Independently, the applicability ofthe doctrine of res judicata is always a question oflaw to be decided de novo by this Court.

E.g . . Kalil v. Town of Dummer ZoninlfBoard of Adjustment, _ N. H. _(February 11, 2010); South Willow Properties, LLC

v.B urlington Coat Factorv of New Hampshire, LLC, N. H. _ (December 16, 2009).

14

the Plaintiffs allegedly have no standing to sue to enforce the 1891 Agteement and (b) that all of

the Plaintiffs' claims are allegedly ba:red by the doctrine of res judicata on account of the filing

of the stipulation of dismissal "with prejudice" in the Prior Lawsuit. (App. C, pp. 7-32) The

Plaintiffs filed a timely objection and memorandum of law in support thereof. (App. A, pp. 1-41)

The Plaintiffs were joined in their opposition to the College's motion by Amicus Todd Zywicki,

a fonner Alumni Trustee.

The Superior Court heard oral argument on the College's motion for summary judgment

on December 4,2009. On January 8, 2070, Judge Vaughan issued an order granting the

College's motion. (App. C, pp. 1-13) The Plaintiffs filed a timely Motion for Reconsideration, to

which the College objected. (App. C, pp. 52-61 and 62-71) On February 5, 2010, Judge

Vaughan denied the Motion for Reconsideration. (App. C, pp. 14-46) This appeal was timely

filed by the Plaintifß on March 18, 2010.

V. SI]MMARY OF ARGI]MENT

The Plaintiffs have personal standing to sue to enforce the 1891 Agreement'

The stipulation filed by the Association and the College dismissing the Prior Lawsuit

"with prejudice" provides no res judicatabar to the Current Lawsuit.

\rI. ARGUMENT

A. Preliminarv Matters.

There are no disputes of material fact. Since the rulings by the Superior Court were

rulings of law, this Court is not bound to give any deference to the conclusions reached by the

Superior Court and all matters at issue should be decided de novo.ls Ë'.s., Hili-Grant Livine

Trust v. Kearsage Liehting Precinct. 159 N. H.529,532 (2009).

ility of the doctrine of res judicata is always a question of law to be decided de novo by this Court.N. H. (February 11, 2010); South Willow Propefties' LLC

_N. H. _ (December 16, 20Q9).

1.

2.

t4



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

Sue In Their Own Names To Enforce This Contract.

New Hampshire generally follows the RESTATEMENT OF CONTRACTS on issues of

contract law. Section 302 of the RESTATEMENT states the rule as to when non-parties to a

contract may be recognized as third - party beneficiaries (which it calls "intended

beneficiaries"), who, under the common law, are entitled to sue to enforce the contract in their

own names. In relevant part, Section 302 states as follows: "Unless otherwise agreed between a

promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a

right to performance in the beneficiary is appropriate to effectuate the intention of the parties and

... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the

promised performance." RESTATEMENT (SECOND) OF CONTRACTS §302(1)(b).

According to the RESTATEMENT, therefore, the critical determinant of whether a

contract has any third-party beneficiaries is the "intention of the parties." Citing to the

RESTATEMENT, this Court has articulated the test as follows: "A third-party beneficiary

relationship exists if ... the contract is so expressed as to give the promisor reason to know that a

benefit to a third party is contemplated by the promisee as one of the motivating causes of his

making the contract .... A benefit to a third party is a 'motivating cause' of entering into a

contract only where the promisee intends 'to give the beneficiary the benefit of the promised

performance.'" Grossman v. Murray, 144 N.H. 345, 347-8 (1999).

The entire evidence of record with respect to the intentions of the parties to the 1891

Agreement is contained in the two documents which together form the Agreement: the June 23,

1891 Resolution of the College's Board of Trustees and the June 25, 1891 Report of the

15

B.

Sue In Their Own Names To Enforce This Contract.

New Hampshire generally follows the RESTATEMENT OF CONTRACTS on issues of

contract law. Section 302 of the RESTATEMENT states the rule as to when non-parties to a

contract may be recognized as third party beneficiaries (which it calls "intended

beneficiaries"), who, under the common law, are entitled to sue to enforce the contract in their

own names. In relevant part, Section302 states as follows: "IJnless otherwise agreed between a

promisor and promisee, a børeficiary of a promise is an intended beneficiary if recognition of a

right to performance in the beneficiary is appropriate to effectuate the intention of the parties and

... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the

promised performance." RESTATEMENT (sECoND) oF CONTRACTS $3 02( 1 Xb).

According to the RESTATEMENT, therefore, the critical deterrninant of whether a

contract has any third-party beneficiaries is the "intention of the parties." Citing to the

RESTATEMENT, this Court has articulated the test as follows: "A third-party beneficiary

relationship exists if ... the contract is so expressed as to give the promisor reason to know that a

benefit to a third pffity is contemplated by the promisee as one of the motivating causes of his

making the contract .... A benefit to a third party is a'motivating cause' of entering into a

contact only where the promisee intends 'to give the beneficiary the benefit of the promised

performance."' Grossman v. Murra-'r', 144 N.H. 345,347-8 (1999).

The entire evidence of record with respect to the intentions of the parties to the 1891

Agreement is contained in the two documents which together forrn the Agreement: the June 23,

1891 Resolution of the College's Board of Trustees and the June 25, l89l Report of the

15



Association to the alumni. (See generally, App. A, pp. 159-166 & App. B, pp. 93-94) Both

make specific references to the benefits which the parties expected the Agreement to confer upon

the alumni and, in turn, the obligations which it imposed upon them. In a nutshell, the benefit

which the 1891 Agreement conferred upon the alumni was the opportunity to participate in a

process to choose one-half of the members of the Board of Trustees and, as the Superior Court

correctly observed, to thus enjoy "a greater role in management of Dartmouth College." (App. C,

p. 11) In particular, this is how the Association's Report to the alumni described what the

committee which negotiated the Agreement with the Board of Trustees intended:

The Committee's opinion was that the most certain, if not the only, effectual way

to create and preserve the live, constant, active interest of the Alumni in theCollege, and their cooperation in its affairs, was to confer upon them a real,

substantial, personal responsibility thereon; that a mere advisory Board with no

rights, or the mere privilege of occasionally making a nomination of a possible

Trustee, would be too uncertain, contingent, and remote a right, to excite and keep

up that clear, constant, active interest of the Alumni, which is needed, and which

it was the duty of your Committee to secure, if possible. (App. A, p. 161)

(emphasis in original)

Note that the Report refers to the alumni having been granted something "personal." In

other words, the essential intent ofthe framers of the 1891 Agreement was not merely to confer a

participatory privilege in the College's governance upon the Association of Alumni, as an entity,

but to confer this privilege upon the individual members of the body of alumni.I6 Although the

privilege was to be exercised through a collective process administered by the Association, the

benefit of the College's agreement to accept alumni parity on its Board of Trustees was clearly

intended to devolve upon the alumni themselves.V

16Note, also, that if one examines the other side of the contractual equation, the situation is parallel. For it is also the alumni, not

the Association, from whence the consideration for the College's promise of parity flows. Suffice it to say that such things asmaking financial contributions to the College, serving on College committees, serving on the Board of Trustees and voting inelections for Alumni Trustees (see Petition ~3l-32, App. C, pp. 28-29) are all the acts of individual alumni, not the Association.

17 While less expressive of the parties' intent to confer benefits upon the alumni as individuals, the June 23, 1891 Resolution of

the Board of Trustees, which is the document constituting the College's component of the 1891 Agreement, states that theCollege is granting the right to nominate Alumni Trustees to "the graduates of the College." (App. B, p. 93)

16

Association to the alum¡i. (See eenerally, App. A, pp. 159-766 & App. B, pp. 93-94) Both

make specific references to the benefits which the parties expected the Agreement to confer upon

the alumni and, in turn, the obligations which it imposed upon them. In a nutshell, the benefit

which the 1891 Agreement conferred upon the alumni was the opportunity to participate in a

process to choose one-half of the members of the Board of Trustees and, as the Superior Court

correctly observed, to thus enjoy "a greater role in management of Dartmouth College." (App. C,

p. 11) In particular, this is how the Association's Report to the alumni described what the

committee which negotiated the Agreement with the Board of Trustees intended:

The Committee's opinion was that the most certain, if not the onl¡ effectual way

to create and preserve the live, constant, active interest of the Ahururi in theCollege, and their cooperation in its affairs, was to confer upon them a real,substantial, personal responsibility thercon; that a mere advisory Board with norights, or the mere privilege of occasionally making a nomination of a possibleTrustee, would be too uncertain, contingent, and remote a right, to excite and keepup that clear, constant, active interest of the Alumni, which is needed, and whichit was the duty of your Committee to secure, if possible. (App. A, p. 161)(emphasis in original)

Note that the Report refers to the alumni having been granted something "personal." Út

other words, the essential intent of the framers of the 1891 Agreement was not merely to confer a

participatory privilege in the College's governance upon the Association of Alumni, as an entity,

but to confer this privilege upon the individual members of the body of alumni.l6 Although the

privilege was to be exercised through a collective process administered by the Association, the

benefit of the College's agteement to accept alumni parity on its Board of Trustees was clearly

intended to devolve upon the alumni thernselves.lT

t6 Not., also, that if one examines the other side of the contractual equation, the situation is parallel. For it is also the alumni, notthe Association, from whence the consideration for the College's promise of parity flows. Suffice it to say that such things as

making financial contributions to the College, serwing on College committees, serving on the Board of Trustees and voting inelections for Alumni Trustees (see Petition !f3 7-32, App. C, pp.28-29) are all the acts of individuøl alumni, not the Association.

t7 Whil" less expressive of the parties' intent to confer benefits upon the alumni as inclividuals, the June 23, lSgl Resolution ofthe Board of Trustees, which is the document constituting the College's component of the 1891 Agreement, states that theCollege is granting the right to nominate Alumni Trustees to "the graduates of the College." (App. B, p. 93)

T6



Indeed, the College itself has taken certain actions which essentially acknowledge that

whatever privileges exist with respect to alumni representation on the Board of Trustees, the

alumni themselves possess those privileges. For example, at the same meeting in September,

2007, that the Board voted to breach parity, it also voted to take over administrative control of

the process for the election of Alumni Trustees. (App. C, Petitiorr[S 7, pp. 30-31) Only if the

Alumni Council (which nominates candidates for Alumni Trustee seats) and the Association

(which conducts the elections for those seats in the event of a contest) were to change their

constitutions to "reform" the electoral process in a manner to the liking of the Board would the

Board agree to return administrative control of the elections to these two organizations. In other

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

exercise of their rights to participate in the governance of the College. See Public Service Co. of

N.H. v. Hudson Light and Power Dept., Q 38 F.2d 338, 345 (1st Cir., 1991) (third-party

beneficiary standing is especially appropriate where the contract promisee is only a "token

intermediary" for the real parties in interest).

Accordingly, the undisputed evidence of record sufficiently satisfies the intent-to-

benefit prong of the RESTATEMENT's third-party beneficiary test. Nevertheless, the College

will probably argue on appeal - as it did below - that there must also be evidence that the parties

specifically intended to give putative third-party beneficiaries a right to sue on the contract. To

begin with, the evidence of record establishes that the parties to the 1891 Agreement did indeed

intend to confer rights and not just benefits upon the alumni. In this regard, the June 25, 1891

report to the alumni specifically states that the 1891 Agreement - unlike prior plans which the

alumni and the College had considered - was intended to grant the alumni "rights" which would

"excite ... [their] ... clear, constant active interests ... , which is needed, and which it was the

17

Indeed, the College itself has taken certain actions which essentially acknowledge that

whatever privileges exist with respect to alumni representation on the Board of Trustees, the

alumni themselves possess those privileges. For example, at the same meeting in September,

2007, that the Board voted to breach panty, it also voted to take over administrative control of

the process for the election of Alumni Trustees. (App. C, Petitionfl37,pp.30-31) Only if the

Alumni Council (which nominates candidates for Alumni Trustee seats) and the Association

(which conducts the elections for those seats in the event of a contest) were to change their

constitutions to "reform" the electoral process in a manner to the liking of the Board would the

Board agree to return administrative control of the elections to these two organizations. In other

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

exercise of their rights to participate in the govemance of the College. See Public Service Co. of

N.H. v. Hudson Lieürt and Power Dept., 938 F.2d 338, 345 (lst Cfu., 1991) (third-party

beneficiary standing is especially appropriate where the contract promisee is only a "token

intermediary'' for the real parties in interest).

Accordingly, the undisputed evidence of record sufficiently satisfies the intent-to-

benefit prong of the RESTATEMENT's third-party beneficiary test. Nevertheless, the College

will probably argue on appeal - as it did below - that there must also be evidence that the parties

specifically intended to give putative third-party beneficiaries a right to sue on the contract. To

begin with, the evidence of record establishes that the parties to the 1891 Agreement did indeed

intend to confer rìghts and not }ust benefits upon the alumni. In this regard, the June 25, 1897

report to the alumni specifically states that the 1891 Agreement - unlike prior plans which the

alumni and the College had considered - was intended to grant the alumni "rights" which would

"excite ... [their] ... clear, constant active interests ..., which is needed, and which it was the

I7



duty of your Committee to secure, if possible." (App., p. 161) Although the report does not, in

so many words, express the parties' intent to grant the alumni standing to sue on the contract, it

is arguable that the ability to enforce the alumni's rights to parity is implicit in the granting of

such rights because, as Chief Justice John Marshall so famously put it, "a right without a remedy

is no right at all." Marburyv. Madison, 5 U.S. 137, 163 (1803).

More important, there is no mention in the RESTATEMENT or in the New Hampshire

case law of any such requirement that the parties express a specific intent to confer upon a third-

party beneficiary the right to sue on the contract. As stated in RESTATEMENT (SECOND) OF

CONTRACTS §304: "A promise in a contract creates a duty in the promisor to any intended

beneficiary to perform the promise, and the intended beneficiary may enforce the duty." See

also, id.at comment d. This makes perfect sense in light of the fact that the RESTATEMENT

rule is really a default rule; in other words, it is designed to provide a rule of construction where

the parties to the contract have not included language therein which expresses their intent about

enforcement by non-parties. And, since the parties to a contract only rarely express their intent

on such a matter, having a default rule in this area is perfectly appropriate.

In other words, once the intent-to-benefit test has been satisfied - as it is in this case - it

is the law, not the specific intent of the parties, which supplies the third-party beneficiary with

the power to enforce the contract. As prescribed in the RESTATEMENT, whether the law will

recognize such a right - expressed therein as "a right to performance" - depends upon whether it

is "appropriate to effectuate the intention of the parties." RESTATEMENT (SECOND) OF

CONTRACTS §302(1)(b).

The Plaintiffs respectfully submit that it is entirely "appropriate" to recognize individual

alumni rights of performance with respect to the 1891 Agreement. Besides the fact that the

18

duty of your Committee to secure, if possible." (App., p. 161) Although the report does not, in

so many words, express the parties' intent to grant the alumni standing to sue on the contract, it

is arguable that the ability to enforce the alumni's rights to parity is implicit in the granting of

such rights because, as Chief Justice John Marshall so famously put it, "a/rgþt without a remedy

is no right at a11." Marbury v. Madison, 5 U.S. 137,763 (1803).

More important, there is no mention in the RESTATEMENT or in the New Hampshire

case law of any such requirement that the parties express a specific intent to confer upon a third-

party beneficiary the right to sue on the contract. As stated in RESTATEMENT (SECOND) OF

CONTRACTS $304: "A promise in a contract creates a {uty in the promisor to any intended

beneficiary to perforrn the promise, and the intended beneficiary may enforce the duty." See

also, id. aI comment d. This makes perfect sense in light of the fact that the RESTATEMENT

rule is really a default rule; in other words, it is designed to provide a rule of conskuction where

the parties to the contract have not included language therein which expresses their intent about

enforcement by non-parties. And, since the parties to a contract only rarely express their intent

on such a matter, having a default rule in this area is perfectly appropriate.

In other words, once the intent-to-benefit test has been satisfied - as it is in this case - it

is the law, not the specific intent of the parties, which supplies the third-party beneficiary with

the power to enforce the contract. As prescribed in the RESTATEMENT, whether the law will

recogrrize such a right - expressed therein as "a right to perforrnance" - depends upon whether it

is "appropriate to effectuate the intention of the parties." RESTATEMENT (SECOND) OF

coNrRACrs $302(1)@).

The Plaintiffs respectfully submit that it is entirely "appropriate" to recognize individual

alumni rights of perforrnance with respect to the 1891 Agreement. Besides the fact that the

18



parties to the contract expressed their intent to confer personal rights upon the alumni,

enforcement of the contract by individual alumni - such as these Plaintiffs - necessarily inures to

the benefit of all alumni. To put things the other way, no other alumnus can be prejudiced by the

relief sought by these Plaintiffs. In other words, if the Plaintiffs are successful in enforcing the

1891 Agreement, they will have no greater ability to actually choose the persons who will serve

as Alumni Trustees than other alumni will.

The other reason that recognizing the right of individual alumni to sue on the 1891

Agreement is appropriate to effectuate the intention of the parties arises out of the public policy

implications of enforcing the contract at issue. The way in which public policy militates in favor

of permitting this suit to go forward will be addressed in detail in the brief to be filed by the

amicus in this case, former Alumni Trustee Todd Zywicki. If anything beyond what the Plaintiffs

offer herein is needed to tip the scales of justice on this issue, Professor Zywicki's brief will

clearly establish why Dartmouth's 100+ year history of alumni representation on its governing

body is something worth preserving.

c. The Superior Court Assumed, Without Deciding, That the Plaintiffs Do HaveStanding 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.

The Association is an unincorporated entity and the Plaintiffs claim to have standing as

members thereof to personally sue on the contract. The law of New Hampshire is admittedly

fuzzy on this point. The primary case on the rights and obligations of members of unincorporated

associations is Shortlidge v. Gutoski, 125 N.H. 510 (1984). In that case, the Court held that

individual members of an unincorporated association could be sued personally on contracts

entered into by the association to which such members had assented and ratified. Id. at 515. The

19

parties to the contract expressed their intent to confer personal rights upon the alumni,

enforcement of the contract by individual alumni- such as these Plaintiffs - necessarily inures to

the benefit of all ahtmru To put things the other way, no other alumnus can be prejudiced by the

relief sought by these Plaintifß. In other words, if the Plaintifß are successful in enforcing the

1891 Agreement, they will have no greater ability to actually choose the persons who will serve

as Alumni Trustees than other alumni will.

The other reason that recogniztng the right of individual alumni to sue on the 1891

Agreement is appropriate to effectuate the intention of the parties arises out of the public policy

implications of enforcing the contract at issue. The way in which public policy militates in favor

of permitting this suit to go forward will be addressed in detail in the brief to be filed by the

amicus in this case, former Alumni Trustee ToddZywrcki. If anything beyond what the Plaintiffs

offer herein is needed to tþ the scales of justice on this issue, Professor Zywicki's brief will

clearly establish why Dartmouth's 100+ year history of alumni representation on its goveming

body is something worth preserving.

C.

Compelled in this Case.

The Association is an unincorporated entity and the Plaintiffs claim to have standing as

members thereof to personally sue on the contract. The law of New Hampshire is admittedly

fiizzy on this point. The primary case on the rights and obligations of members of unincorporated

associations is Shortlidge v. Gutoski. 125 N.H. 510 (1934). In that case, the Court held that

individual menbers of an unincorporated association could be sued personally on contracts

entered into by the association to which such members had assented and ratified. Id. at 515. The

t9



Plaintiffs take the position that the reverse is also true, i.e., that individual members of an

unincorporated association can sue to enforce contracts of the association to which they have

assented and ratified. 18 See Bowker v. Nashua Textile Co., Inc., 103 N.H. 242, 246 (1961) (only

shareholders who have themselves suffered injury may bring a stockholders' derivative suit).

D. Even If the 1891 Agreement Is Deemed Not to Be a Contract 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 recognizes promissory estoppel as a cause of action that serves to

"impute contractual stature based upon an underlying promise, and to provide a remedy to the

party who detrimentally relies on the promise." Great Lakes Aircraft Co., Inc. v. City of

Claremont, 135 N.H. 270, 290 (N.H. 1992). The RESTATEMENT (SECOND) OF

CONTRACTS, §90 defines this cause of action as follows:

A promise which the promisor should reasonably expect to induce action or forbearance

on the part of the promisee or a third person and which does induce such action or

forbearance is binding if injustice can be avoided only by enforcement of the promise.

The remedy granted for breach may be limited as justice requires.

Some elements of a promissory estoppel claim are very similar to the elements of a third-

party beneficiary claim: (a) a promise-reasonably-expected-to-induce-another's-action-or-

forbearance vs intention-to-benefit-another arid (b) injustice-being-avoided-only-by-enforcement-

of-the-promise vs recognition-of-a-right-of-performance-being-appropriate-to-effectuate-the-

intention-of-the-parties. As argued above, the undisputed facts establish the Plaintiffs' standing

to sue as third-party beneficiaries and it is respectfully suggested that the same evidence

adequately establishes their standing to sue under promissory estoppel.

18 The Plaintiffs allege such assent and ratification in paragraph 31 of their Petition and such allegation issubstantiated by the affidavit of Plaintiff John Steel. (App. A, p. 43)

20

Plaintiffs take the position that the reverse is aiso true, i.e.. that individual members of an

unincorporated association can sue to enforce contracts of the association to which they have

assented and ratified. t8 S"" Bowker v. Nashua Textile Co.. Inc., 103 N.H. 242,246 (1961) (only

shareholders who have themselves suffered injury may bring a stoclúolders' derivative suit).

D. Even If the 1891 Asreement fs Deemed Not to Be a Contract Between the

New Hampshire recognizes promissory estoppel as a cause of action that serves to

"impute contractual stature based upon an underlying promise, and to provide a remedy to the

party who detrimentally relies on the promise." Great Lakes Aircraft Co.. lnc. v. City of

Claremont, 135 N.H. 270, 290 (N.H. 1992). The RESTATEMENT (SECOND) OF

CONTRACTS, $90 defines this cause of action as follows:

A promise which the promisor should reasonably expect to induce action or forbearanceon the part of the promisee or a third person and which does induce such action orforbearance is binding if injustice can be avoided only by enforcement of the promise.

The remedy granted for breach may be limited as justice requires.

Some elements of a promissory estoppel claim are very similar to the elements of a third-

party beneficiary claim: (a) a promise-reasonably-expected-to-induce-another's-action-or-

forbearance vs intention-to-benefit-another and (b) injustice-being-avoided-only-by-enforcement-

oÊthe-promise vs recognition-of-a-right-oÊperfonnance-being-appropriate-to-effectuate-the-

intention-of-the-parties. As argued above, the undisputed facts establish the Plaintiffs' standing

to sue as third-party beneficiaries and it is respectfully suggested that the same evidence

adequately establishes their standing to sue under promissory estoppel.

18 The Plaintiffs allege such assent and ratification in paragraph 31 of their Petition and such allegation issubstantiated by the afñdavit of PlaintiffJohn Steel. (App. A, p. 43)

20



The only additional element of a promissory estoppel claim is that the promise of the

promisor must have actually induced the action or forbearance which the promisor expected.i"

The Plaintiffs have alleged that they all relied upon the College's promise of parity and that they

took actions in reliance thereon. CAppoC, Petition, ~~30-31 & 77-81, pp. 28 and 36_37)20 As

noted above, the Plaintiffs have supplemented their allegations, by way of example, with a

statement of specific facts applicable to Plaintiff John Steel. CAppoA, pp. 42-43) Since the

Plaintiffs' facts are undisputed, their standing to sue under the doctrine of promissory estoppel is

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 the Defense of Res Judicata, the College Should Be Denied the

Opportunity to Avail Itself of Such a Defense in this Case Where the Undisputed

Facts Establish (A) That the Association's Executive Committee Had Not 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 Prior Lawsuit "With Prejudice," an.d eC) That the College Itself

Colluded with the Association's Executive Committee and Orchestrated the

Preparation and Filing of the "With Prejudice" Dismissal in Such a Manner That

the Alumni Would Not Find out about it until it Was Too Late.

The College claims that even if the Plaintiffs have standing to sue, the Current Lawsuit

should be dismissed under the doctrine of res judicata on account of the filing of the stipulation

in the Prior Lawsuit dismissing the Association's claims "with prejudice." The Plaintiffs claim

that the stipulation is not worthy of resjudicata recognition.

Although voluntary dismissals generally do qualify for such recognition, exception is

made for cases of "fraud, collusion or error." Merchants Mutual Casualty Co. v. Kiley, 92 N.H.

19 On the other hand, when it comes to the merits of a promissory estoppel claim, the claimant does not have toprove that there was a contract.

20 Note that the Plaintiffs claim to be both direct promisees of and foreseeable third parties who relied upon the

College's promise to seat an equal number of Alumni Trustees to the number of Charter Trustees.

21

The only additional element of a promissory estoppel claim is that the promise of the

promisor must have actually induced the action or forbearance which the promisor expected.le

The Plaintiffs have alleged that they all relied upon the College's promise of parity and that they

took actions in reliance thereon. (App. C, Petition, 1TT30-31 &, 77-8I, pp. 28 and,36-37)t0 At

noted above, the Plaintiffs have supplemented their allegations, by way of example, with a

statement of specific facts applicable to Plaintiff John Steel. (App. A, pp. 42-43) Since the

Plaintiffs' facts are undisputed, their standing to sue under the doctrine of promissory estoppel is

established.

E.

Assertion of the Defense of .R¿s .Izdrcøf¿. the Colleee Should Be Denied the

Facts Establish (A) That the Association's Executive Committee IIad Not Been

Dismissal of the Prior Lawsuit "With Preiudice," and (C) That the College ItselfColluded with the Association's Executive Committee and Orchestrated the

the Alumni'Would Not Find out about it until it Was Too Late.

The College claims that even if the Plaintiffs have standing to sue, the Current Lawsuit

should be dismissed under the doctrine of res judicata on account of the filing of the stþulation

in the Prior Lawsuit dismissing the Association's claims "with prejudice." The Plaintiffs claim

that the stipulation is not worthy of res judicata recognition.

Although voluntary dismissals generally do qualif,i for such recognition, exception is

made for cases of "fraud, collusion or error." Merchants Mutual Casualt]¡ Co. v. Kile)¡, 92 N.H.

te On the other hand, when it comes to the merits of a promissory estoppel claim, the claimant does not have toprove that there \ilas a contract.

20 Note that the Plaintiffs claim to be both direct promisees of and foreseeable third parties who relied upon theCollege's promise to seat an equal number of Alumni Trustees to the number of Charter Trustees.

2l



323, 327 (1943). For example, in Beliveau v. Amoskeag Manufacturing Co., 68 N.H. 225

(1894), a plaintiff attempted to strike a stipulation which had been entered on the record by his

attorney after the plaintiff had discharged him as his counsel. The docket had been marked

"judgment for the plaintiff by agreement and judgment satisfied." Without knowledge of the

opposing attorney's lack of authority, the defendant's counsel had agreed to the settlement and

the defendant had paid over the agreed-upon sum of money. The plaintiff's counsel, however,

promptly absconded with the money. Noting that settlement agreements are conclusive as

between the parties "in the absence of fraud or mistake," the Court denied the plaintiffs motion

to set the stipulation aside because the evidence established that the defendant's attorney "acted

in good faith, without knowledge or ... reason to suppose that [opposing counsel] was not the

plaintiffs attorney." Id. at 226. Accord, Hubley v. Goodwin, 91 N.H. 200, 203 (1940)

(stipulation for dismissal executed by counsel without client authority is enforceable where no

"fraud or collusion" and agreement was entered into "in good faith"); Moore v. Lebanon, 96

N.H. at 22 (stating that stipulations for dismissal "made in good faith" will be enforced).

Burtman v. Butman, 94 N.H. 412 (1947) (settlement by attorneys in probate matters will be

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

1044 (2nd Cir., 1982) (under Federal Rule of Civil Procedure 60(b), non-parties permitted to

modify a stipulation for dismissal on equitable grounds); Guarantee Trust & Safe-Deposit Co. v.

Duluth &W.R. Co., 70 F. 803 (D.C. Minn., 1895) (permitting intervention by shareholders of a

corporate party who allege that the corporation and the other party to the suit are about to enter a

collusive consent decree adverse to the shareholders' interests); Warner Company v. Sutton, 637

A.2d 960 (N.J. Super., 1994) (also allowing intervention to prevent entry of collusive consent

decree). See generally, RESTATEMENT (SECOND) OF JUDGMENTS, §42, comment b ("[A]

22

323,327 (1943). For example, in Beliveau v. Amoskeaq Manufacturins Co., 68 N.H. 225

(1894), a plaintiff attempted to strike a stipulation which had been entered on the record by his

attorney after the plaintiff had discharged him as his counsel. The docket had been marked

'Judgment for the plaintiff by agreement and judgment satisfied." Without knowledge of the

opposing attorney's lack of authoriry the defendant's counsel had agreed to the settlement and

the defendant had paid over the agreed-upon sum of money. The plaintiffls counsel, however,

promptly absconded with the money. Noting that settlement agreements are conclusive as

between the parties "in the absence of fraud or mistake," the Court denied the plaintiff s motion

to set the stþulation aside because the evidence established that the defendant's attorney "acted

in good faith, without knowledge or ... reason to suppose that fopposing counsel] was not the

plaintiffls attorney." Id. at 226. Accord, Huble]¡ v. Goodwin, 91 N.H. 200, 203 (1940)

(stþulation for dismissal executed by counsel without client authority is enforceable where no

"fraud or collusion" a¡.d agreernent was entered into "in good faith"); Moore v. Lebanon, 96

N.H. at 22 (statng that stipulations for dismissal "made in good faith" will be enforced).

Burbman v. Buhan, 94 N.H. 412 (1947) (settlement by attomeys in probate matters will be

enforced if "reasonable"). See also, Dunlop v. Pan American 'World Airwavs. Inc. , 672 F.2d

1044 (2nd Clr., 1982) (under Federal Rule of Civil Procedure 60(b), non-parties permitted to

modiff a stþulation for dismissal on equitable grounds); Guarantee Trust & Safe-Deposit Co. v.

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

corporate party who allege that the corporation and the other party to the suit are about to enter a

collusive consent decree adverse to the shareholders' interests); Warner Companv v. Sutton, 637

A.2d 960 (N.J. Super., 1994) (also allowing intervention to prevent entry of collusive consent

decree). See eensrall% RESTATEMENT (SECOND) OF JTIDGMENTS, $42, comment b ("l\l

22



judgment is not binding on the represented person where it is the product of collusion between

the representative and the opposing party .... ").

In applying the foregoing principles to the case at bar, one should first note that the

Association's dismissal of the Prior Lawsuit "with prejudice" was completely gratuitous.

Indeed, there is simply no good reason why the Association did not take a dismissal "without

prejudice.t''" Suffice it to say that the Association gave up something of value; it had just

received a favorable order from the Court denying the College's motion to dismiss - which

constituted at least some indication that the Association had a valid claim and might win if the

case went to trial. Yet it received absolutely nothing in return for giving up its legal rights to

pursue its claims.22

Accordingly, to the extent that the stipulation is a type of contract and

subject to contract rules of intcrpretation.f it should be deemed unenforceable because there was

no consideration for the Association's relinquishment of the alumni's rights.

The second reason that the Association's stipulation of dismissal with prejudice should be

deemed ineffective to bar the Current Lawsuit is that it was a product of collusion and bad faith.

In this regard, since it is the College which wishes to avail itself of the preclusive effect that such

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

facts make clear, the College not only colluded with the Association in dismissing the Prior

Lawsuit with prejudice; it virtually commandeered the entire process. For it was the College that

21 A dismissal without prejudice would have terminated the Prior Lawsuit, but would not have prevented the

Association (or anyone else having standing) from reinstituting it if negotiations with the College for a restoration ofparity ultimately failed. li&. Town of Plaistow v. Riddle, 143 N.H. 307, 309 (1996); RESTATEMENT (SECOND)OF JUDGMENTS, §20.

22 Indeed, the College has yet to answer what Ms. Lawrence dubbed the most controversial question: "why [the

Executive Committee of] the AoA, which is only elected for a year, would file to withdraw a suit with prejudice andprevent future executive committees from acting differently?" (App. A, p. 102)

23 Israel v. Carpenter, 120 F.3d 361, 366 (2d Cir., 1997).

23

judgment is not binding on the represented person where it is the product of collusion between

the representative and the opposing party ....").

In applying the foregoing principles to the case at bar, one should first note that the

Association's dismissal of the Prior Lawsuit "with prejudice" was completely gratuitous.

Indeed, there is simply no good reason why the Association did not take a dismissal "without

prejudice."2l Suffice it to say that the Association gave up something of value; it had just

received a favorable order from the Court denying the College's motion to dismiss - which

constituted at least some indication that the Association had a valid claim and might win if the

case went to trial. Yet it received absolutely nothing in return for giving up its legal rights to

pursue its claims.22 Accordingly, to the extent that the stþulation is a type of contract and

subject to contract rules of interpretation,23 it should be deemed unenforceable because there was

no consideration for the Association's relinquishment of the alumni's .ights.

The second reason that the Association's stipulation of dismissal with prejudice should be

deemed ineffective to bar the Current Lawsuit is that it was a product of collusion and bad faith.

ln this regard, since it is the College which wishes to avail itself of the preclusive effect that such

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

facts make clear, the College not only colluded with the Association in dismissing the Prior

Lawsuit with prejudice; it virrually comm¿ldeered the entire process. For it was the College that

21 A dismissal without prejudice would have terminated the Prior Lawsuit, but would not have prevented the

Association (or anyone else having standing) from reinstituting it if negotiations with the College for a restoration ofparity ultimately failed. E.e.. Town of Plaistow v. Riddle, 143 N.H. 307,309 (1996); RESTATEMENT (SECOND)oF JUDGMENTS, $20.

22 Indeed, the College has yet to answer what Ms. Lawrence dubbed the most controversial question: "why ftheExecutive Committee ofl the AoA, which is only elected for a year, would file to withdraw a suif with prejudice andprevent future executive committees from acting differently?" (App. A, p. i02)23 Israel v. Carpenter, 720F.3d,361,366 (2d,C11., IggT).

23



Agreement. It is the position of the Plaintiffs that no cancellation by the Association of the 1891

Agreement could be effected without a vote of its members."

Although the Association's constitution does not expressly mention the 1891 Agreement,

it clearly presupposes its existence. (App. B, pp. 95-98) Therefore, it is the Plaintiffs' further

contention that a cancellation of the 1891 Agreement would amount to an amendment of the

Association's constitution. And, like a cancellation of the 1891 Agreement, changes in the

Association's constitution may only be effected by a vote of the Association's members.f

Despite prior admissions to the contrary by Mr. Mathias and Mr. Spalding, the College

will presumably argue that the Executive Committee did not need a vote of the Association's

members to dismiss the Prior Lawsuit with prejudice. It is important to understand the following

implication of such a proposition: if the Executive Committee had the unilateral power to give

up the alumni's right to equal representation on the College's Board of Trustees, it also had the

unilateral power to give up the alumni's right to any representation on the Board. Since the

Association's primary (and some would contend, its only) reason for being is to conduct

elections for the Alumni Trustee seats guaranteed by the 1891 Agreement, if the Executive

Committee could, on its own, completely give up the alumni's right to representation on the

Board, it could essentially put the Association out of business. For the College to even suggest

such an untenable proposition ought to be sufficient for this Court to reject it.

27 Note that the 1891 Agreement was originally adopted by the Association through a vote of its members. (App. A, p. 166)

Likewise, over the years, when changes have been made to the procedures to be used by the Association for the election ofAlumni Trustees, these changes have always been adopted by its members.

28 Suffice it to say that no vote of the alumni has ever been taken to cancel the 1891 Agreement. Moreover, as noted

previously, even the only poll that was ever taken on the pure concept of parity, the poll taken by the former ExecutiveCommittee before it filed the Prior Lawsuit, resulted in an overwhelming vote in favor of parity. See footnote 3, ante. TheCollege, of course, will point to the alumni's election of the Unity Slate in the face of the latter's campaign pledge to dismiss thePrior Lawsuit. However, as Mr. Mathias and Mr. Spalding have attested to, that vote was "fought over lawsuit not parity." See p.

11, ante.

25

Agreement. It is the position of the Plaintiffs that no cancellation by the Association of the 1891

Agreement could be effected without a vote of its members.2?

Although the Association's constitution does not expressly mention the 1891 Agreement,

it clearly presupposes its existence. (App. B, pp. 95-98) Therefore, it is the Plaintiffs' further

contention that a cancellation of the 1891 Agreement would amount to an amendment of the

Association's constitution. And, like a cancellation of the 1891 Agreement, changes in the

Association's constitution may only be effected by a vote of the Association's memberc.28

Despite prior admissions to the contrary by Mr. Mathias and Mr. Spalding, the College

will presumably argue that the Executive Committee did not need a vote of the Association's

members to dismiss the Prior Lawsuit with prejudice. It is imFortant to understand the following

implication of such a proposition: if the Executive Committee had the unilateral power to give

up the alumni's right to equal representation on the College's Board of Trustees, it also had the

unilateral power to give up the alumni's right to any lepresentation on the Board. Since the

Association's primary (and some would contend, its only) reason for being is to conduct

elections for the Alumni Trustee seats guaranteed by the 1891 Agreement, if the Executive

Committee could, on its o\Mn, completely give up the alumni's right to representation on the

Board, it could essentiallyput the Association out of business. For the College to even suggest

such an untenable proposition ought to be sufficient for this Court to reject it.

" Not" that the 1891 Agreement was originally adopted by the Association through a vote of its members. (App. A, p. 166)

Likewise, over the years, when changes have been made to the procedures to be used by the Association for the election ofAlumni Trustees, these changes have always been adopted by its members.

" SufFrce it to say that no vote of the alumni has ever been taken to cancel the 1891 Agreement. Moreover, as notedpreviousl¡ even the only poll that was ever taken on the pure concept of parity, the poll taken by the former ExecutiveComrnittee before it filed the Prior Lawsuit, resulted in an overwhelmingvole infavor of parity. See footnote 3, ante.TlreCollege, of course, will point to the alumni's election of the Unity Slate in the face of the latter's campaign pledge to dismiss thePrior Lawsuit. However, as Mr. Mathias and Mr. Spalding have attested to, that vote was "fought over lawsuit not parity." See p.77, ante.

25



According to the New Hampshire Supreme Court, "[R]es judicata bars relitigation of

issues between parties absent some extenuating circumstance. " Indian Head Nat. Bank of Derry

v. Simonsen, 115 N. H. 282, 284 (1975) (emphasis supplied). Applying the teachings of such

cases as Beliveau, Hubley and Moore, this Court should (1) find that there are indeed

extenuating circumstances in this case, (2) strip the stipulation of its presumption of regularity

and (3) grant the stipulation absolutely no res judicata effect upon the Current Lawsuit.

Accordingly, the Court should rule that the Plaintiffs are not barred by the dismissal of the Prior

Lawsuit from bringing the Current Lawsuit, either as members of the Association, as third-

party beneficiaries or as parties who have standing to bring claims in promissory estoppel.

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

"With Prejudice" Dismissal of the Prior Lawsuit Where the Actions of the

Association's Executive Committee in Withdrawing the Prior 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 Is Not the Association, but Is Instead the College.

The College will undoubtedly respond to the Plaintiffs' contention that this Court should

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

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

the proposition that courts will generally not interfere in the internal affairs of unincorporated

associations. Bricker v. New Hampshire Medical Society, 110 N.H. 469 (1970).

To begin with, the College has no standing to raise this issue. The Association is not a

party to the Current Lawsuit and the College has no authority to assert the Association's legal

rights. Compare, Brzica v. Trustees of Dartmouth College, 147 N.H. 443 (2002) (where the

Association was a party).

26

According to the New Hampshire Supreme Court, "[R]es judicata bars relitigation of

issues between parties absent some extenuating circumstønce. " Indian Head Nat. Bank of Derr.y

v. Simonsen, 115 N. H. 282,284 (1975) (emphasis supplied). Applying the teachings of such

cases as Beliveau, Hubley and Moore, this Court should (1) find that there are indeed

extenuating circumstances in this case, (2) strip the stþulation of its presumption of regularity

and (3) grant the stipulation absolutely no res judicata effect upon the Current Lawsuit.

Accordingl¡ the Court should rule that the Plaintiffs are not bared by the dismissal of the Prior

Lawsuit from bringing the Current Lawsuit, either as members of the Association, as third-

party beneficiaries or as parties who have standing to bring claims in promissory estoppel.

F.

66With Preiudice" Dismissal of the Prior Lawsuit 'Where the Actions of theAssociation's Executive Committee in 'Withdrawing the Prior Lawsuit with

Bricker Doctrine Is Not the Association. but Is Instead the College.

The College will undoubtedly respond to the Plaintiffs' contention that this Court should

not give res judìcata effect to the stipulation because of its aforementioned flaws by arguing that

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

the proposition that courts will generally not interfere in the internal affairs of unincorporated

associations. Bricker v. New Hampshire Medical Societ% 110 N.H. 469 (1970).

To begin with, the College has no standing to raise this issue. The Association is not a

party to the Cunent Lawsuit and the College has no authority to assert the Association's legal

rights. Compare, Brzica v. Trustees of Dartmouth Colleqe, 147 N.H. 443 Q002) (where the

Association was aparty).

26



More important, the Bricker doctrine is not a bar to judicial scrutiny of the stipulation

because it does not apply in cases involving "injustice or illegal action." Bricker supra at 470;

Brzica, supra at 456. The fact that the stipulation was ultra vires, was without consideration and

was a product of collusion with the College certainly qualifies as sufficient "injustice" to

eliminate the immunity from judicial scrutiny which the Bricker doctrine might otherwise have

afforded the stipulation. _

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

association's qualified immunity from judicial oversight for its "internal affairs" was never

meant to extend to actions taken by an association which materially and adversely affect the

legal rights of the association's members vis-a-vis outside parties. This is illustrated by the

Bricker case itself. The complaint by the plaintiff in that case concerned the action of the

governing body of the New Hampshire Medical Society, of which the plaintiff was a member, in

using the services of a particular law firm which sometimes experienced conflicts of interest

.between its representation of the Society and its representation of other clients. In refusing to get

involved in such a dispute, the Supreme Court expressly noted that "the plaintiff does not claim

that the society or its attorney has inflicted or threatened to inflict any specific existing or

reasonably anticipated damage to himself as a physician or as a member of the New Hampshire

Medical Society." Bricker v. New Hampshire Medical Society, 110 N.H. 469,470 (1970). In

other words, the dispute between the parties was more in the nature of a general policy dispute

than a dispute over anyone's legal rights. This is quite unlike the case at bar. The fact that the

Association's Executive Committee entered into a stipulation with the College which purports to

completely and forever bar the Association and its members from enforcing their contract with

the College (the implementation of which is the primary business of the Association) is hardly

27

More important, the Bricker doctrine is not a bar to judicial scrutiny of the stipulation

because it does not apply in cases involving "injustice or illegal action." Bricker supra at 470;

Brzica, supra at 456. The fact that the stþulation was ultra vires, was without consideration and

was a product of collusion with the College certainly qualifies as sufficient "injustice" to

eliminate the immunity from judicial scrutiny which the Bricker doctrine might otherwise have

afforded the stipulation. -

Finall¡ the Plaintiffs respectfully suggest that the Bricker court's reference to a voluntary

association's qualified immunity from judicial oversight for its "internal affairs" \Mas never

meant to extend to actions taken by an association which materially and adversely affect the

legal rights of the association's members vis-à-vis outside parties. This is illustrated by the

Bricker case itself. The complaint by the plaintiff in that case concerned the action of the

goveming body of the New Hampshire Medical Society, of which the plaintiff v/as a member, in

using the services of a particular law firm which sometimes experienced conflicts of interest

between its representation of the Society and its representation of other clients. In refusing to get

involved in such a dispute, the Supreme Court expressly noted that "the plaintiff does not claim

that the society or its attorney has inflicted or threatened to inflict any specific existing or

reasonably anticipated darnage to himself as a physician or as a msmber of the New Hampshire

Medical Society." Bricker v. New Hampshire Medical Society. 110 N.H. 469, 470 (1970). In

other words, the dispute between the parties was more in the nature of a general policy dispute

than a dispute over anyone's legal rights. This is quite unlike the case atbar The fact that the

Association's Executive Committee entered into a stipulation with the College which purports to

completely and forever bar the Association and its members from enforcing their contract with

the College (the implementation of which is the primary business of the Association) is hardly

27



something which pertains to only the Association's "internal"Z9 affairs. Compare, Brzica v.

Trustees of Dartmouth College, 147 N.H. 443, 456 (2002) (challenge to a modification of the

Association's process for selecting Alumni Trustees is not judicially cognizable because it is

merely a dispute over a voluntary association's "internal governance procedures").

It is especially inappropriate to decline inquiry into the circumstances surrounding the

actions of the Association's Executive Committee in the context of the College's reliance upon

those actions to impose the bar of res judicata, a doctrine which in New Hampshire specifically

implicates equitable considerations. As recently as last summer, in a case in which the interests

of the parties to the action at bar were admittedly represented by a party to an earlier action and

where all of the formal conditions for the application of res judicata were satisfied, this Court

nevertheless declined to apply res judicata "because of the potential adverse impact ... on the ...

interests of persons not themselves parties in the initial action." In re: Zachary, __ N.H. __ ,

_ (July 31, 2009) (also holding that the burden of proof with respect to the application of res

judicata is upon the party asserting it). See also, State of NH v. Charpentier, 126 N.H. 56, 61

(1985); RESTATEMENT (SECOND) OF JUDGMENTS §28(5). Suffice it to say that invocation

of the Bricker doctrine to preclude a judicial investigation into the propriety of the stipulation in

question has more than a mere "potential adverse effect" upon important interests of the

Plaintiffs and the other alumni; it completely extinguishes them. It is respectfully suggested

that the Bricker doctrine was never meant to require the judiciary to sit on the sidelines under

circumstances such as these.

And, finally, whatever may be the merits of the College's assertion of the Bricker

doctrine with respect to the Plaintiffs' claims as members of the Association, the issue is entirely

29 Note that the Association itself has not moved to intervene as a party in this case. The probable reason for this is that the

Plaintiffs are not asking for any relief which would require the Association to do anything or not to do anything. In that sense,therefore, the Plaintiffs are not interfering in any of the Association's affairs, internal or otherwise.

28

something which pertains to only the Association's "internult'2e affairs. Compa¡e, Brzica v.

Trustees of Dartmouth College, 147 N.H. 443, 456 (2002) (challenge to a modification of the

Association's process for selecting Alumni Trustees is not judicially cognizable because it is

merely a dispute over a voluntary association's "internal governance procedures").

It is especially inappropriate to decline inquiry into the circumstances surrounding the

actions of the Association's Executive Committee in the context of the College's reliance upon

those actions to impose the bar of res judicata, a doctrine which in New Hampshire specifically

implicates equitable considerations. As recently as last summer, in a case in which the interests

of the parties to the action at bar were admittedly represented by a party to an earlier action and

where all of the formal conditions for the application of res judicata were satisfied, this Court

nevertheless declined to apply res judicata "because of the potential adverse impact . . . on the . . .

interests of persons not themselves parties in the initial action." In re: Zachary, _ N.H. _,

-(July 31, 2009) (also holdin g that the burden of proof with respect to the application of res

judicata is upon the party asserting it). See also, State of NH v. Charpentier, 126 N.H. 56, 6l

(1985); RESTATEMENT (SECOND) OF ruDGMENTS $28(5). Sufñce itto saythat invocation

of the Bricker dockine to preclude a judicial investigation into the propriety of the stipulation in

question has more than a mere 'þotential adverse effect" upon important interests of the

Plaintiffs and the other alumni; it completely extinguishes thsm. It is respectfully suggested

that the Bricker doctrine was never meant to require the judiciary to sit on the sidelines under

circumstances such as these.

And, finally, whatever may be the merits of the College's assertion of the Bricker

doctrine with respect to the Plaintiffs' claims as members of the Association, the issue is entirely

'9 Not" that the Association itself has not moved to intervene as a party in this case. The probable reason for this is that thePlaintiffs are not asking for any relief which would require the Association to do anything oi not to do anything. In fhat sense,therefore, the Plaintiffs are not interferingin any ofthe Association's affairs, internal-or otñerwise.

28



irrelevant to the Plaintiffs' independent claims as third-party beneficiaries and as parties entitled

to recover under principles of promissory estoppel. Since these claims are ones which cannot be

involuntarily taken from them by the Association's Executive Committee or even by a vote of

the alumni, the validity of the stipulation or the question of whether the Bricker doctrine

insulates the stipulation from judicial scrutiny simply has nothing to do with the Plaintiffs' rights

to pursue these particular claims.

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

Beneficiary Claims Are Not Barred by Res Judicata.

The doctrine of res judicata bars the re-litigation of the same cause of action by the same

parties or those in privity with them where the earlier litigation was terminated by a judgment on

the merits. Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). The problem

for the College, of course, is that the parties in the Current Lawsuit are not the same as the

parties in the Prior Lawsuit. Accordingly, to apply the doctrine of resjudicata, the College must

establish that the Plaintiffs were in "privity" with the Association in the Prior Lawsuit.

Under general rules of privity, a non-party to an earlier suit may be barred from bringing

a second suit where he/she was personally involved in the earlier suit in such a fashion as to have

been in control of the litigation. In this case, the undisputed facts establish that the Plaintiffs had

no involvement whatsoever in the Prior Lawsuit. Accordingly, the general rule has no bearing

upon the Plaintiffs' rights to proceed with the Current Lawsuit. 30

30 Nevertheless, in its Motion for Summary Judgment below, the College argued that the Plaintiffs should be deemed to be in

functional privity with the Association in the Prior Lawsuit and thus barred from proceeding with the Current Lawsuit by theasserted res judicata effect of the stipulation. The College's claim was based upon the fact that an entity known as The Hanover

29

irrelevant to the Plaintiffs' independent claims as third-party beneficiaries and as parties entitled

to recover under principles of promissory estoppel. Since these claims are ones which cannot bè

involuntarily taken from them by the Association's Executive Committee or even by a vote of

the alumni, the validity of the stipulation or the question of whether the Bricker doctrine

insulates the stipulation from judicial scrutiny simply has nothing to do with the Plaintiffs' rights

to pursue these particular claims.

G.

Beneficiary Claims Are &lBefretl bv Res Judìcøta.

The doctrine of res judicatabars the re-litigation of the same cause of action by the same

parties or those in privity with them where the earlier litigation was tenninated by a judgment on

the merits. Brzica v. Trustees of Dartmouth Collese, 147 N.H. 443,454 (2002). The problem

for the College, of coutse, is that the parties in the Current Lawsuit are not the same as the

parties in the Prior Lawsuit. Accordingly, to apply the doctrine of res judicata,Ihe College must

establish that the Plaintiffs were in'þrivity''with the Association in the Prior Lawsuit.

Under general rules of privity, a non-party to an earlier suit may be bared from bringing

a second suit where helshe was personally involved in the earlier suit in such a fashion as to have

been in control of the litigation. In this case, the undisputed facts establish that the Plaintiffs had

no involverrent whatsoever in the Prior Lawsuit. Accordingly, the general rule has no bearing

upon the Plaintifß' rights to proceed with the Current Lawsuit. 30

30 Ne'¿ertheless, in its Motion for Summary Judgment below, the College argued that the Plaintiffs should be deemed to be infunctional privity with

^theAssociation in the Prior Lawsuit and thus barred hom proceeding with the Cur¡ent Lawsuit by the

asserted res judicata effect of the stþulation. The College's claim was based upon the fact thãt an entity known as The Hanover

29



However, when it comes to third-party beneficiaries of a contract, the RESTATEMENT

prescribes a special rule as to when such parties are deemed to be in privity with a contract

promisee for purposes of res judicata. In this regard, the RESTATEMENT (SECOND) OF

JUDGMENTS, §56(1) provides as follows:

When a contract between two persons creates an obligation in favor of another person as

an intended beneficiary ... a judgment for or against the promisee in an action between

him and the promisor does not preclude an action by the beneficiary on the obligation to

him unless at the time of the judgment was rendered the promisee had the power to

discharge the obligation.

Applying this rule to the case at bar, unless at the time that the Prior Lawsuit was

dismissed, the Association - the promisee under the 1891 Agreement - had the power to cut off

the rights of individual alumni - the third-party beneficiaries under the Agreement - the

dismissal of the Prior Lawsuit has no res judicata effect upon the rights of the Plaintiffs to

proceed with the Current Lawsuit. To determine whether the Association had such a power, one

must refer back to the' rules governing contracts and the rights of third-party beneficiaries.

RESTATEMENT (SECOND) OF JUDGMENTS, §56(1), comment a.

RESTATEMENT (SECOND) OF CONTRACTS §311(3) provides that a contract

promisee has no power to cut off the rights of a third-party beneficiary after "the beneficiary ...

Institute (the "Institute") financed both the Prior Lawsuit and the Current Lawsuit. The Institute is a New Hampshire not-for-

profit corporation founded in 2002 whose mission, in part, is "to support, encourage and facilitate the full, fair and informedparticipation by the alumni of Dartmouth College in the governance of Dartmouth College and the nomination and election ofalumni trustees of Dartmouth College; ... "(App. A, p. 132) None of the Plaintiffs are members, directors or officers of TheHanover Institute. (App. B, Dartmouth Ex. BB through HH, pp. 310-337, Interrogatories #2 & 4) Moreover, the undisputedfacts establish that except for the payment oflegal fees, the Institute played no role in the Prior Lawsuit. Accordingly, even if the

actions of the Institute could somehow be imputed to the Plaintiffs, since the determinant of functional privity is whether thenon-party who is alleged to be in privity with a party in the first suit was in control of that suit, it is clear that the doctrine does

not apply in this case. Daigle v. Portsmouth, 129 N.H. 561, 571 (1987) (citing and summarizing RESTATEMENT (SECOND)

OF JUDGMENTS, §39 as follows: "A person who controls, or who substantially participates in controlling, the presentation onbehalf of a party is bound by the determination of the issue decided, as though he wen, himself a party.")

In addition, even if the Plaintiffs could be deemed to be in functional privity with the Association in the Prior Lawsuit, the

doctrine at issue would be collateral estoppel, not res judicata. RESTATEMENT (SECOND) OF JUDGMENTS §39; Tsiatsios v.Tsiatsios, 144 N.H. 438, 441-443 (1999); Aranson v. Schroeder, 140 N.H. 359, 368-9 (1995); Daigle v. Portsmouth, supra; seeRESTATEMENT (SECOND) OF JUDGMENTS, §59(3). The problem for the College is that nothing was resolved in the Prior

Lawsuit. As stated in comment e to RESTATEMENT (SECOND) OF JUDGMENTS §27, "In the case of a judgment entered byconfession, consent, or default, none of the issues is actually litigated. Therefore, [collateral estoppel] does not apply withrespect to any issue in a subsequent action." Accord, Waters v. Hedberg, 126 N.H. 546, 549 (1985).

30

However, when it comes to third-party beneficiaries of a contract, the RESTATEMENT

prescribes a special rule as to when such parties are deemed to be in privity with a contract

promisee for purposes of res judicata. In this rcgard, the RESTATEMENT (SECOND) OF

JUDGMENTS, $56(1) provides as follows:

When a contract between two persons creates an obligation in favor of another person as

an intended beneficiary ,.. a judgment for or against the promisee in an action betweenhim and the promisor does not preclude an action by the beneficiary on the obligation tohim unless at the time of the judgment was rendered the promisee had the power todischarge the obligation.

Applytng this rule to the case at bar, unless at the time that the Prior Lawsuit was

dismissed, the Association - the promisee under the 1891 Agreement - had the power to cut off

the rights of individual alumni - the third-party beneficiaries under the Agreement - the

dismissal of the Prior Lawsuit has no res judicata effect upon the rights of the Plaintiffs to

proceed with the Current Lawsuit. To determine whether the Association had such a power, one

must refer back to the rules goveming contracts and the rights of third-party beneficiaries.

RESTATEMENT (SECOND) OF TDGMENTS, $56(1), comment a.

RESTATEMENT (SECOND) OF CONTRACTS $311(3) provides that a contract

promisee has no power to cut off the rights of a third-party beneficiary after "the beneficiary ...

Institute (the "Institute") financed both the P¡ior Lawzuit and the Current Lawsuit. The Institute is a New Hampshire not-for-profit corporation founded n 2002 whose mission, in part, is "to support, encourage and facilitate the full, fair and info¡medparticipation by the alumni of Dartmouth College in the govemance of Dartrnouth College and the nomination and election ofalumni trustees of Darlmouth College;..."(App. A,p. 132) None of the Plaintiffs are members, directors or ofEcers of TheHanover Institute. (App. B, Darhnouth Ex. BB through HH, pp. 3|1-331,Interrogatories #2 e. Ð Moreover, the undisputedfacts establish that except for the payment oflegal fees, the Institute played no role in the Prior Lawsuit. Accordingl¡ even iftheactions of thé Institute could somehow be imputed to the Plaintiffs, since the determinant of functional privity is whether thenon-party who is alleged to be in privity with a party in the fi¡st suit was in control of that suit, it is clear that the doctrine doesnot apply in this case. Daigle v. Poitsmouth, 129 N.H. 561,571 (1987) (citing a¡rd summarizing RESTATEMENT (SECOND)

OF JTIDGMENTS, $39 as follows: "A person who controls, or who substantially participates in controlling, the presentation onbehalf of a party is bound by the determination of the issue decided, as though he wèrç himself a parry.")

In addition, even if the Plaintiffs could be deemed to be in functional privity with the Association in the Prior Lawzuit, thedoctrine at issue would be collateral estoppel, not res judícata. RESTATEMENT (SECOND) OF JTIDGMENTS $39; Tsiatsios v.Tsiatsios. 144 N.H. 438,441-443 (1999); A¡anson v. Schroeder, 140 N.H. 359,368-9 (1995); Daiele v. Portsmouth, supra; seeRESTATEMENT (SECOND) OF JUDGMENTS, $59(3). The problern for the College is that nothing was resolved in the PriorLawsuit. As stated in comment e to RESTATEMENT (SECOND) OF JUDGMENTS $27, "In the case of a judgment entered byconfession, consent, or default, none of the issues is'actually litigated. Therefore,

"fcoilateralestoppell äoei not apply witÍr

respect to any issue in a subsequent action." Accord, Waters v. Hedbe¡g, 126 N.H. 546,549 (1985).

30



materially changes his position in justifiable reliance on the promise or brings suit on it or

manifests assent to it at the request of the promisor or promisee." As noted before, all of the

Plaintiffs claim that they have taken actions in reliance upon the 1891 Agreement and these

allegations are documented by Way of example with respect to Plaintiff John Steel. There are no

facts of record to the contrary. Accordingly, regardless of the possible efficacy ofthe stipulation

to bar future claims by the Association itself, since the Plaintiffs' third-party beneficiary rights

were vested in the manner prescribed by the RESTATEMENT, their third-party beneficiary

claims survive the Association's dismissal of the Prior Lawsuit with prejudice.

Moreover, even if the Plaintiffs' third-party beneficiary rights had not vested by the time

the stipulation was filed, the other reason that the Association's Executive Committee did not-

in the words of the RESTATEMENT §56(1) - have the "power to discharge the obligation" of

the College was because, as argued above, the alumni had never voted to authorize the

stipulation or to otherwise relinquish the Association's or their rights to parity. Accordingly, for

this reason as well, the Plaintiffs' third-party beneficiary claims survive the Association's

dismissal of the Prior 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 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 That the Plaintiffs' Claims Based

upon Promissory Estoppel Are Not Barred by Res Judicata.

Plaintiffs suggest that the effect of res judicata upon their independent claims under the

theory of promissory estoppel should properly be governed by the same principles as apply to

their third-party beneficiary claims. First, the undisputed facts establish that the Plaintiffs had no

3 1

materially changes his position in justifiable reliance on the promise or brings suit on it or

manifests assent to it at the request of the promisor or promisee." As noted before, all of the

Plaintiffs claim that they have taken actions in reliance upon the 1891 Agreement and these

allegations are documented by way of exa:nple with respect to PlaintiffJohn Steel. There are no

facts of record to the contrary. Accordingly, regardless of the possible efficacy of the stipulation

to bar future claims by the Association itself, since the Plaintifß' third-party beneficiary rights

were vested in the manner prescribed by the RESTATEMENT, their third-party beneficiary

claims survive the Association's dismissal of the Prior Lawsuit with prejudice.

Moreover, even if the Plaintiffs' third-party beneficiary rights had not vested by the time

the stipulation was filed, the other reason that the Association's Executive Committee did not -

in the words of the RESTATEMENT $56(1) - have the "power to discharge the obligation" of

the College was because, as argued above, the alumni had never voted to authorize the

stipulation or to otherwise relinquish the Association's or their rights to parity. Accordingly, for

this reason as well, the Plaintiffs' third-party beneficiary claims survive the Association's

dismissal of the Prior Lawsuit with prejudice.

H.

Action or Authorized the Executive Committee of the Association to Take Anv

Undisputed Facts Compel a Ruling in this Case That the Plaintiffs' Claims Basedupon Promissorv Estoppel Are À[al Barred bv R¿s .,/zdrc¿l¿.

Plaintiffs suggest that the effect of res judicata vpon their independent claims under the

theory of promissory estoppel should properly be governed by the same principles as apply to

their third-party beneficiary claims. First, the undisputed facts establish that the Plaintiffs had no

31



personal involvement in the Prior Lawsuit. Second, because of their actions taken in reliance

upon the College's promise of parity, the Plaintiffs' rights to bring claims in promissory estoppel

should be deemed to be vested and therefore immune from divestiture by the College's and the

Association's execution and filing of the stipulation. And, finally, regardless of whether their

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

given the Executive Committee of the Association the authority to dismiss the Prior Lawsuit

with prejudice or to otherwise relinquish the Association's or their rights to parity and, therefore,

the dismissal should be ineffective as a resjudicata bar to their promissory estoppel claims.

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 That the Plaintiffs' Claims as Members of the Association Are Not Barred by

Res Judicata.

As noted above, the Plaintiffs take the position that the filing of the dismissal of the Prior

Lawsuit with prejudice was ultra vires as to the Association itself because it was not authorized

by a vote of the Association's members. Accordingly, if the Plaintiffs do have standing as

individual members of the Association to enforce the 1891 Agreement, their claims are not be

barred by res judicata.

On the other hand, even if the stipulation were deemed effective to bar subsequent claims

by the Association, there is an unresolved question under New Hampshire law as to whether the

Plaintiffs' individual claims are likewise barred. In the RESTATEMENT, the res judicata

effect upon the members of an unincorporated association of prior litigation by the association

turns upon whether, under applicable law, an unincorporated association is treated as a "jural

32

personal involvement in the Prior Lawsuit. Second, because of their actions taken in reliance

upon the College's promise of parit¡ the Plaintiffs' rights to bring claims in promissory estoppel

should be deemed to be vested and therefore immune from divestiture by the College's and the

Association's execution and filing of the stipulation. And, finally, regardless of whether their

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

given the Executive Committee of the Association the authority to dismiss the Prior Lawsuit

with prejudice or to otherwise relinquish the Association's or their rights to parity and, therefore,

the dismissal should be ineffective as a res judicata bar to their promissory estoppel claims.

L

Case That the Plaintiffs' Claims as Members of the Association Are N¿l Barred bvRes Judicøta.

As noted above, the Plaintiffs take the position that the filing of the dismissal of the Prior

Lawsuit with prejudice was ultra vires as to the Association itself because it was not authorized

by a vote of the Association's members. Accordingly, if the Plaintiffs do have standing as

individual members of the Association to enforce the 1891 Agreement, their claims are not be


On the other hand, even if the stþulation were deemed effective to bar subsequent claims

by the Association, there is an unresolved question under New Hampshire law as to whether the

Plaintiffs' individual claims are likewise barred. In the RESTATEMENT, the res judicata

effect upon the members of an unincorporated association of prior litigation by the association

turns upon whether, under applicable law, an unincorporated association is treated as a "jural

32



entity distinct from its members." RESTATEMENT (SECOND) OF JUDGMENTS, §61. The

test for what is a jural entity is whether it is permitted under local law to bring suit in its own

name. If it is, the RESTATEMENT provides that a suit by the entity bars a second suit by its

members. Id. at §61(2). On the other hand, if an unincorporated association does not have the

right to sue in its own name, the RESTATEMENT would not bar the association's members

from bringing their own suit. RESTATEMENT (SECOND) OF JUDGMENTS, §35, comment d.

The Plaintiffs take the position that, under New Hampshire law, both an unincorporated

association and its members may sue to enforce the association's contracts." See Kessler v.

Gleich, 156 N.H. 488, 492-4 (2007) (limited partner may bring either a derivative action in

behalf of the partnership or a direct, personal action). Accordingly, this case does not fit neatly

into the either/or mold contemplated by the RESTATEMENT.

So, what is this Court to do? The Plaintiffs respectfully suggest that the appropriate rule

for New Hampshire to apply to this situation is something analogous to the rule applicable to

contract promisees and contract third-party beneficiaries.Y Accordingly, because the Plaintiffs

were not involved in the Prior Lawsuit and because neither the Plaintiffs personally nor the other

members of the Association authorized the dismissal of the Prior Lawsuit with prejudice or

otherwise authorized the Association's Executive Committee to give away the Association's or

their rights to parity, the dismissal of the Prior Lawsuit should not be a bar to their claims in the

Current Lawsuit as members of the Association.

31 Ironically, in the Prior Lawsuit, the College took the position that the Association had no standing to sue in its

own name and only its members could to sue to enforce the 1891 Agreement. Now that the shoe is on the other foot,the College, of course, takes the opposite position.

32 It is especially appropriate to apply such a rule in this case where the association's members who have elected tobecome plaintiffs have personally taken actions in reliance upon the association's contract. Although it may be abridge too far to suggest that the independent rights of these association members might now be ' vested" so as to beimmune from divesture by the association, that bridge does 00t have to be crossed in this case because the ExecutiveCommittee of the Association of Alumni was never given any authority to do such a thing and, therefore, what it diddo (i.e., file the stipulation) was ineffective to divest the members of their independent rights to enforce the 1891Agreement.

33

entlty distinct from its members." RESTATEMENT (SECOND) OF JUDGMENTS, g61. The

test for what is a jural entity is whether it is permitted under local law to bring suit in its own

name. If it is, the RESTATEMENT provides thal a suit by the entity bars a second suit by its

members. Id. at $61(2). On the other hand, if an unincorporated association does not have the

right to sue in its own narne, the RESTATEMENT would not bar the association's members

from bringing their own suit. RESTATEMENT (SECOND) oF JUDGMENTS, 935, comment d.

The Plaintiffs take the position that, under New Harnpshire law, both an unincorporated

association and its members may sue to enforce the association's contracts.3l See Kessler v.

Gleich, 156 N.H. 488, 492-4 Q007) (limited partner may bring either a derivative action in

behalf of the partnership or a direct, personal action). Accordingly, this case does not fit neatly

into the either/or mold contemplated by the RESTATEMENT.

So, what is this Court to do? The Plaintiffs respectfully suggest that the appropriate rule

for New Hampshire to apply to this situation is something analogous to the rule applicable to

contract promisees and contract third-party beneficiaries.3' Accordingly, because the Plaintiffs

were not involved in the Prior Lawsuit and because neither the Plaintiffs personally nor the other

members of the Association authorized the dismissal of the Prior Lawsuit with prejudice or

otherwise authorized the Association's Executive Committee to give away the Association's or

their rights to parity, the dismissal of the Prior Lawsuit should not be a bar to their claims in the

Current Lawsuit as members of the Association.

31 lronically, !n t4e Prior Lawsuit, the College took the position that the Association had no standing to sue in its

gwn_n?Pe and- only its members could to sue to enforce the 1 89 I Agreement. Now that the shoe is on ihe other foot,the College, of course, takes the opposite position.

32 It is especially appropriate to apply such a rule in this case where the association's members who have elected toþe99me plaìntiffs have personally taken actions in reliance upon the association's contract. Although it may be abridge too far to suggest that theimmune from divesture by the asCommittee of the Association ofdo (i.e., frle the stipulation) wasAgreement.

JJ



VII. CONCLUSION

For the reasons stated above, the Plaintiffs respectfully pray that the Court rule as

follows:

1. That the Plaintiffs have standing to bring the Current Lawsuit as members of theAssociation;

2 .

judicata;That the Plaintiffs' claims as members of the Association are not barred by res

3. That the Plaintiffs have standing to bring the Current Lawsuit as third-partybeneficiaries of the 1891 Agreement;

4.

judicata;That the Plaintiffs' claims as third-party beneficiaries are not barred by res

5 . That the Plaintiffs have standing to sue on the grounds of promissory estoppel;

6 .

judicata;That the Plaintiffs' claims based on promissory estoppel are not barred by res

And, therefore, this Court should reverse the Superior Court's granting of the College's

Motion for Summary Judgment and remand this case for a trial on the merits.

34

VII. CONCLUSION

For the reasons stated above, the Plaintifß respectfully pray that the Court rule as

follows:

1. That the PlaintifFs have standing to bring the Current Lawsuit as me,mbers of theAssociation;

2. That the Plaintiffs' claims as members of the Association are not bared by resjudícata;

3. That the Plaintiffs have standing to bring the Current Lawsuit as third-partybeneficiaries of the 1891 Agreønent;

' 4. That the Plaintiffs' claims as third-party beneficiaries are not barred by resjudicata;

5. That the Plaintiffs have standing to sue on the grounds ofpromissory estoppel;

6. That the Plaintiffs' claims based on promissory estoppel are not ba¡red by resjudicata;

And, therefore, this Court should reverse the Superior Court's granting of the College's

Motion for Summary Judgment and remand this case for a trial on the merits.

34



REQUEST FOR ORAL ARGUMENT

The Plaintiffs respectfully request that their counsel be permitted to argue orally.

Respectfully submitted,

BiV, Brooks, et al

By Their Attorneys:

WADLEIGH, STARR &PETERS, P.L.L.C.

Euge

95 ket Street


(603) 669-4140

CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2010, copies of the foregoing were served by hand onAttorney Bruce W. Felmly, Esquire, McLANE, GRAF, RAULERSON & MIDDLETON, 900

Elm Street, Manchester, NH 03101, and by first-class mail upon Richard C. Pepperman, II,

Esquire, SULLIVAN & CROMWELL, 125 Broad Street, New York, NY 10004, both counsel

for the Defendant! Appellee, and by first-class mail upon Harvey Silverglate, Esquire,

ZALKIND, RODRIGUEZ, LUNT & DUNCAN, 65A Atlantic Avenue, Boston, MA 02110 and

Andru H. Volinsky, Esquire, BERNSTEIN, SHUR, SAWYER &NELSON, 670 N. Commercial

Street, Suite 108, Manchester, NH 03105, both counsel for amicus.

35

REOUEST FOR ORAL ARGUMENT

The Plaintiffs respectfully request that their counsel be permitted to argue orally.

Respectfu lly submitted,B.V. Brooks, et alBy Their Attorneys:WADLEIGH, STARR & PETERS, P.L.L.C.

Manchester, NH 03101(603) 669-4140

95 Market StreetManchester, NH 03101(603) 669-4140

CERTIF'ICATE OF SERYICE

I hereby certiff that on JuIy 29, 2010, copies of the foregoing were served by hand onAttorney Bruce W. Felmly, Esquire, MoLANE, GRAF, RAULERSON & MIDDLETON, 900Elm Street, Manchestor, NH 03101, and by first-class mail upon Richard C. Pepperman, II,Esquire, SULLIVAN & CROMWELL,I25 Broad Street, New York, NY 10004, both counselfor the Defendanl Appellee, and by first-class mail upon Harvey Silverglate, Esquire,ZALKIND, RODRIGUEZ, LLINT & DUNCAN, 654 Atlantic Avenue, Boston, MA 02110 andAndru H. Volinsk¡ Esquire, BERNSTEIN, SHUR, SAWYER & NELSON, 670 N. CommercialStreet, Suite 108, Manchester, NH 03105, both counsel for amicus.

J. Judge, Bat#1219

35




Grafton Superior Court3 78 5 D artmo uth C oll eg e H ig hw ay

N. Haverhill, NH 03774

603 787- 69 61

NOTICE OF DECISION

EuGENE M VJL~ LO~ III ESQ

WADLEIGH STJI.RR & PETERS

95 MARKET STREET

Y~CHESTER ~~ 03101

08-E~0294 B.V. Brooks, et al vs. Trustees of Dartmouth College

Enclosed please find a copy of the Court1s Order dated 1/08/2010relative to:

Motion for Summary Judgment

01/14/2010 Robert B. Muh

Clerk of Court

cc: Stephen J. Judge, Esq.

Bruce 1 i ' 1 . l"elmly, Esg.

Joel T. Emlen, Esq.

Richard C. Pepperman, II, Esq.

Andru Volinsky" Bsg.

Harvey lL si1 verglate, Esq.

R uth O'M eara-CostellOr Esq.

AOC Form SUCPOS.2 (Rev 09,'27/2001)

36

THE STATE OF NEW HAMPSHIREGrafton Superior Gourt3785 Damnoutb. Coltege Highway

N. Haverhill, NH 03774603 787_6961

¡¡oTICE oF DECISION

EUGENE M V-AÀT LOAN TTI ESQVIADLETGIT ST.Þ$"R & PETERS95 MARKET STRÐETM]ÃNCHESTER \TT O31O].

08-E-0294 B.V. Brcoks, et aI vs. Trust,ees of, Dartmoutb. College

Encl-o-=ecÌ please find a copy of the Court's Order dateã L/CB/zli.Orel-attve Èo:

Motion ior Sr:¡rnary Judgrment

at/:-4/20!O Roberr B. MuhCLerk of Couri

ccrStephen

J. Judge, Esq,Eruce I¡1 , F'elmL¡r, Esg,,loel T. Emlerr, Eso..R,ichard C. !'eÞperman, iI, Esq.Ãndru Voiinsk-y,. Esg.Har-'reY A- SLlvergiate, Esg'Ru*-h O 'Meara- Cos-uelÌo, Esg .

36

AOC Fo¡m SUCP052 (Rev 0987,'2001)




S' rOc--DlnR ('0' IRTt I "r"a",;"J ....., "-"l'\

v .

Docket No. 08-E-294

SV Brooks, Kenneth F. Clark, Jr., Marisa DeAngelis Kane, John H. Plunkett, Douglas R.

Raichle, Robert G . Reed III, and John Steel II I

Trustees of Dartmouth College

ORDER ON MOTION FOR SUMMARY JUDGMENT

The petitioners, who are alumni of Dartmouth College and. members of the

Association of Alumni of Dartmouth College (Association), have fiied a Petition. for

Declaratory Judgment and Equitable Relief, alleging essentially tr iat the respondent

breached its legal and equitable obligations when it altered the composition of the

Board of Trustees. The Association previously filed suit based on the same underlying

facts, docket no. 07-E-289, but in June 2008 it entered into a stipulation with the

respondent to dismiss the suit with prejudice. The respondent moves for summary

jUdgment, arguing that the present suit is barred by the doctrine of res judicata and that

the petitioners lack standing. The petitioners object. The parties presented ora!

argument on the motion on December 4, 2009. ;:;:0; the reasons that follow, the motion

for summary judgment is GRANTED.

Unless otherwise noted, the following facts are undisputed. In 1891) the Board of

1. Factual and Procedural Background

Trustees adopted a resolution permitting alumni to nominate suitable persons for five

trusteeships (Alumni Trustees), which at that time constituted one-half of the Beard's

membership (not inciuding the Governor of New Hampshire and President of the

37

THE STATE OF NËW HAMPSHIREGP,AFTOI.J, SS, SUPER.IOR COURT

Docket No. 08-E-294

3.V' Brooks, Kenneth F, Clark, Ji., Mai'isa DeAngelis Kane, Jchn H. plunkett, Dcuolas F..

Raichle, Robert G. R.eed 1il. and iohn Steel lll

Trustees oí Dartrnouth College

ÛRDER OI.I MOTION FOR SUMMARY JUDGMENT

Ïhe petiiioners, who are aiumni of Danmouih College and members cí the

A'ssociatio¡ of Alumni oí Darimouth College (Associaiicn), have íiied a petition .io¡.

Declaratory Judgment and Equitable Relief, alleging essentiaily tnât tne i.espondeni

breached its iegal and equiiable obligations when it altered ihe cornposiiion of the

Scaro of T,'ustees. The É,ssociaiion previcusly iilecl suit based cn the same uncierlying

facis, docket nc. 07-E-289. bui in June 2008 ii entered into a siipuÌaiion wiih the

responieni io ciismìss the suit vuitii prejuciice. The respondani.moves Íor summary

juCgnrent, arguing that the pressnt suit Ís barreC by ihe cioctrine oí res jucjicata and thai

ihe peiitioners lack standing. -ihe petitioners obìect, ïhe par.ties presenieci o;-el

argumeni on the rnotion on Dece,ïber 4,20Qg, Fc¡ the Teasons that folicw. the mo.rion

for summary jucigment is GRANTED.

l. Factual and Pi-oceciural Eackground

Unless otharwise noieci, ihe foflowingfacts are undispuied, ìn 18g1, tne BoarC oÍ

T¡usiees acicpied a resoluiion permitiíng alumni tc nominate sui'rable perscns for flve

trusteeships (Alumni Tru'stees), which at thai time consiituied one-halí oi the BoarC's

,'irembership (noi incíuding ihe Governor of New Hampshire anC presicjen.r of iire

37



I

College, both of whom are ex officio trustees). The Association, of which ali alumni are

members, was to nominate Alumni "Trustees using procedures that would be provided in

its Constitution. The Board would then elect those nominees. The rernaininq five

trustees (ChaJier "Trustees) were to be nominated and elected by the Board. Minutes of

separate meetings of the Board and of the Association reflect that each approved the

new method of electing trustees, The parties did not.' however, memorialize the new

method of election in a single written agreement signed by both. During this and "prior

litigation, the new method of election instituted in 1891 has been referred to as the

"1891 Agreement." The Court uses this term throughout this order, without making any

In 1961 and 2003, the total number of members of the Board was Increased, but

judgment as to whether the so-called 1891 Agreement actually constitutes a legally

enforceable ongoing agreement between it s parties to maintain numerical parity on the

Board between Aiumni Trustees and Charter Trustees

each Time parity was maintained between Alumni Trustees and Charter Trustees. in

September 2007, the Board of Trustees adopted a resolution to expand its size by

adding new Charter Trustees, As the result of this expansion, Alumni Trustees would

comprise only one-third, and no longer one-halt, of the Board. in response, the

Assoclation filed suit. It pled: Count I (Breach of Contract), Count ll (Breach of lrnpl'ed-

In-Fact Contract), and Count III (Promissory Estoppel). Counts I and I I alleged that the

respondent breached an express or implied-in-fact contract to maintain parity between

Alumni Trustees and Charter Trustees. Count ill alleged that. even. in the absence of a

contract, promissory estoppel barred the respondent from eiiminating Darity.

'."

38

College, both of whom aie ex oäcio trustees), The Associeiion, of whicb all alumni a¡'e

membûi-s, wes tû ncminate Alumni Trustess using pi-oceciures thai would be proviciad in

its Ccnstiiution. The 3oard i¡roulC tiren elect lhcse nominges, The remainihg iive

trustees (Char-ie;'Trustaas)were tc be norninaied ano elected by the Boaro. l,linu.ies oí

ssparate meeiings cÍ the Board and of the Asscciaiion reÍiect that each appi.oved the

new method of electing trustees. ïhe oarties did not,'however, memorialize ih= nev,;

method oí election in a singie written agreemeni signed b¡r both. During this and pricr

Iiiigaiicn. fhe new nreihocÍ oí eíeciion insiituteC in 1891 has been reíerred'ro as iire

"4,^ü91 Agreement." The Ccu¡t uses this ierm throughout ihis or"4ei', r¡¡ithout nraking anv

ìudgment es to wheiher the sc-calied 1891 Agreemenl actually constituies a lagall¡r

enío¡ceabie ongoing agreement between its par-ties to mainiaìn num=rical parii¡r on the

Ðoard between Aiumni Ti-ustees and Chai-ter Trustees

ln 19ô'l anc 2003, the toial number of members cf the Boai-d v,;as inc¡easei, but

each tinre par"iqi w'as maintained bet\ reen Alumni ïiusteas and Chañar Tr-usiees. jn

Septembe;' 2007, the Soard oi Trustees acopted a resciuticn rc expand its size cr¡

adciing nev,/ Chaner Trusiees. A.s the resuli oí ihìs expansicn, Af umni Ti-usiees wo,¡id

comprise only on=-thirc,. and nc longer one-half, oí the Bcai-d, [n i-esponse, ins

Associaiion filed suii, lt pleC: Count I (3rsach of Ccn+.raci), Count ll (Br-each of l,.nplied-

ir¡-Fa:t Conti-act), and Count lli (pi-omissoDi=stoppe[).

Ccunls I ancJ f I alleEed ihat the

i-espcndent b¡'aacireci an express oi inrptied-in-fact conti-aot to mainrain paiiiri bsry;,.-

Alumni Trusiees and Chai-tei Trustees, Count iii allsgec'that, even in ilrs absence oî e

conti-aci, oiomissor-v estoopei bari'ed the responceni irorn eiiminaiing oarii¡r.

38



in June 2008, the alumni elected 8 new executive committee for the Association.

During th e campaign, th e candidates who were eventually elected opposed the

Association's suit against the respondent. Upon election, the new executive committee

resolved to take necessary steps to terminate the lawsuit. The Association and the

respondent entered into a stipulation voluntarily dismissing the suit with prejudice. The

Court approved the stlpuiation by order dated June 30, 2008. In November 2008, the

petitioners, who are all alumni and members o r the Association, filed the present action.

U. Standard of Review

The respondent moves for summary judgment. ; 1 : : . . . moving party is entitled to

summary judgment i f the pleadings, admissions and affidavits "show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law." RSA 491 :8-2, II!, "An issue of fact is material if i t affects the

'outcome of the iltication.' Horse Pond Fish & Game Club v. Cormier, 133 N,H. 648, 653

(1990) (quotation and ellipsls omitted), "The party opposing summary judgment must

set forth specific evidence of a genuine issue of material fact." Pennichuck COrD . v. City

of Nashua, 152 N.H. 729, 739 (2005). The Court must consider the evidence presented

on summary judgment in the light most favorable to the non-moving party, giving the

non-moving party the benefit of all favorable inferences that may be reasonably drawn

from the evidence. Del Norte, inc. v. Provencher, 142 N.H. 535, 537 (1997),

Ill. Discussion

The petitioners offer three reasons that they may maintain suit: (1) they are

entitled to "vindicate their contractual rights as members of [the Association]': (2) they

39

in June 2Û0-8, ihe alumni al¿cied a n3w execuiivs ccmnriitee foi- ihe F,ssociaiion.

Ðuring the carirpaign, the candidaÌe-c \¡¡hc \¡/eie eveniually elecied oppcsec ihe

Association's suit against the respondent. Upcn eieciicn, ihe new execuiive ccmmittee

r=soived io ial'ie necessary steps to ieiminaie tne lawsuit. The Assocìation ancJ iiie

respondent eniereci into a s'ripuiatìon vcluniar:ily dìsmlssìng ihe suii with preiudice. The

Couri approved the siipuiaiion by ordei'cjaied iune 30, 2008. in Ncvernber 2008, the

petiiicners. who ai'e all alumni ancj members of the A,sscciaiion, flled the preseni action,

tÍ. Siandard oi P,evigw

îhe i-espcndent moves for surnmary jucjgmeni. A moving oariy is entltled ic

sut-nmary judgment if the pieadings, admissions and aäidavits 'show that there is no

qenuine issue as io any mater;ai iact and ihat the moving paÍy is entitled tc juCgme nt

as a rnatter oí law," RSA 491:8*a, lll, "An issue oí iact ìs maienal if it afíecis the

'ouicomeof the iiiigation." Horse PoFd Fish & G.amç c-iu'c v. Cormier, 'Í33 N.H.648, ô5-?

(1990) (quotaíion anC ellipsis omitied).'The pariy opposing sùmmary ludqrnent must

sei iorih specifìc avidence oí a genuine issue oí matarial faCi." Pennichuck Co¡-¡. v Citv

oí.Nashua, 152 N.H, 729,739 (2005). The Couii must considei'ihe evrdence presented

cn surnmary jucigmeni in 'the liEht mcst iavciabie io 'rire ncn-moving paiiy, girring tne

non-moving pa,Ty ihe ben=fit of all Íavoi-able jnÍerence-c ihat marv be reascnabil, diawn

from the evidence. Del Ncúe. irrc v, Provenchei-, 142 N.ll. 535. 537 (jgg7),

III. Dlscussion

The peiiiioners ofiei three reascns thai the¡r may r¡aíniain sui+.: ('í) they are

entitlecj to "vinciicaie their contiactuai rights as nrembers oí ftne Associaiion]"; i2) ine],

39

,i



have rights as intended third-party beneficiaries of the 1891 Agreement; and (3)

promissory estoppel bars the respondent from eiiminating parity. In their pleadings and

at oral argument, the petitioners urged th e Court to approach the pending motion by

Members of the Association

. .consideiing how the doctrine of reS judicata implicates each of these three theories and

whether they have standing under any o f these three theories. The Court will, therefore,

address each of these three theories separately.

The petitioners first argue that, as members of the Association, they are entitled

to bring suit for breach of express or irnofleo-in-fact contract. Count III of the petition

Spurred by considerations of judicial economy and a policy of

certainty and finality in our legal system, the doctrines of res judicata and

col lateral estoppel have been established to avoid repetitive litigation so

that at some point litigation over a particuiar controversy must come to an

end. The essence of the doctrine of res judicata is that a final judgment by

a court of competent jurisdiction is conclusive upon the parties in asubsequent Htigation involving the same cause of action.

relies upon this theory. Assuming, without deciding, that individual members of the

Association have stanGing to enforce the alleged contract, the Court finds that the

doctrine of res judicata bars the petitioners from litigating the contract claims.

Eastem Marine CDnst. COrD. \/. First Southern I eZsinq, 129· N.H. 270, 273 (1987)

(quotations and citations omitted). "Res judicata precludes the litigation in a later case

of matters actualty litigated, and matters that could have been iitigated, in an earlier

action between the same parties for the same cause of action." SiLica v. Trustees of

Dartmouth Colleae, 147 N.H. 443, 454 (2002) (quotation omitted). "For the doctrine to

apply, three elements must be met: (1) the parties must be the same or in prtvity with

40

havs rìghts es intencjed ihirci-par.ry beneficiaries of the 1gg,i Ag;-eement; and (3)

Ðicmlssory esioppei bars the respondent ii'om eiiminating oarity. ln their pÌeadings and

ai oi-aÍ argumant, the petitioners urgecÍ the Coud to approach ihe pendìng moiicn b¡r

consicjei-ing hcw the cjccii-ine of res judicata imolicaies each of these three rheories and

whethei'they have sianding uncje¡'any òf these three theories, The Couri wìll, therefore,

acidress each oí.these ihree theoi-ies separaiely.

Members of the Association

The cetitioners fÌrst argue that, as mernbers of the A.ssccìaiion, they are entitiecj

io '5ring suit for breach of express or implied-in-iaci ccntraoi.. count lll of the petjiion

relies ulon tnis theory. Assurning, without deciciing, that incjividual members oi the

Associaiicn have stancíing tc enforce the alleged contract, the Coun finis tha.r the

ciocirine of res jucjicaia bars the petiticner-s from litigating the ccnti-act claims.

Spurred bv consicierafions oí iucjìcial econorny and a policy oícai'iainty and finality in our legai s,vstern, the dcctrines

-ofres juaicata and' colïaÍeral estoppel have been established ic avoio' repetitive liiigaiion sc

thai at some point ritigation over e partícuiar ccntrove¡'s¡r nust come to anend. The essence oî ihe dccirine of res judicaia is thaì á ¡natjudgmeni by

a court of co'-npeÈent jui-iscjicilon is conclusive upcn the pariles in asubsequeni liiigaticn invorving the same câuse of actíon,

(quotations and ciraticns omiried). "Res juc'icata pi-ecruie, ;i ;l ,:::^:::-:t:iioí matiers aciuall¡r litigated, and matters ihat coulc have been iiiigateC, in an cariiei-

aciion between the same parties for the same cause oí action." Bzica v. îrusiees oí

DaÍrnouth colleoe, 'i47 N.H. 443,454 e}aq (ouoiaiion omiited). ,'For the cjocirine tc

appl-v' three elemenis musi be mei: (1)ihe pa¡-iies must be the same cr in priviir¡ with

40



one another; (2 ) the same cause of action must be before the court in both instances;

and (3 ) final judgment on the merits must have been rendered on th e first action." &

The first element is satisfied. The respondent is the same in this action and th e

prior action. The petitioners are not the same, but they were represented by th e

Association in the prior litigation and are bound by the prior dismissal with prejudice. "A

person who is not a party to an action but who is represented by a party is bound by

and entitled to the benefits of the judgment as though he were a party." Restatement

(Second) of Judaments § 41 (1) (1982). A person so represented is "bound by th e

judgment even though the person himself does not have notice of the action, is not

served with process, or is 'not subject to service of process: ld. at § 41 (2).

The Restate-ment (Second) of Judgments explains that an individual may be

bound by a judgment entered in a suit brought by an entity with authority to represent

the individual's interests. For example, a judgment entered in litigation broupht by

., ."managing officers of an unincorporated association with regard to association property

and contracts" is binding on members of the unincorporated association. ld. at § 41

comment b. The followino illustration is orovided: "The members of the council of an- oJ ,

- ~~ -. -Iridian tribe bring an action to determine the boundary line between the lands of that

tribe and another. The iudament is bindina on A, a member of the tribe, with respect to, ",,".,;;J •

the ownership and occupancy rights he may have in the land as a member of the tribe."

!d. at § 41 illustration ~ (emphasis added). The Association brought the prior suit to

vindicate its contractual rights. Insofar as the petitioners filed·the present suit based on

41

one anoihel (2) the same cause of aciion musi bs befcre the courl in both ins*.ances;

and (3) fÌnaljudgnrent on the merits musi have been renCe¡ed cn the firsi aciion." iC.

The first elemeni is satisiied. The i-esponcjent is the same in this acticn and tne

p:'ior aciìon, The petÌticners are noi the same, but they were iepresenied by the

Associaticn in the prior liiigation and are boun.d by the prior dismissal wiih orsjuciice. "li

person t¡¡ho is noi a party to an action but v¿hc is represented by a partyi ìs bound bv

anC entitlei tc 'rhe beneii;,s of the jucÍgmeni as though he wei'e a parry." Restaiemeni

lSeconcj) cf Judoments $ 41(1) f1982), A person so ¡'eprâ-senteC is "bound by the

judgnrent even thcugh the pei-son himself cJoes not have notice oi the action, is noi

sei'ved with process, or is nct subject tc service of process," ld. at S 41(2),

ïhe RestatemenÌ {Second) oí Judgmenis exclains ihat an incjiviiual may be

bound by a judgmeni eniered in a suit broughi by an eniity with authcrity to represeni

the inciivicjuals inierests. Fcr exampìs, a judgmen'r entered in litigaticn brcu.ght b¡,'

l'managing ofricers of an unlncorporated associatjcn with reEard ic asscciaiion propeily

and coniracts" is binciìng on membars oí the unincoi-poi'ated associaiion, id. ai $ 41

ccilmeni b. The follcv'ring illustration is proviieC: "Tha membeis of the council of an

lncjian iribe bring an aciion to cjetermìne túe"boundary iine between the ianos of thai

tribe ancj ancthe¡-, The juigmen'r is binciing on A, a membei cí the iribe, wiih i-espect tr

the ownership anci occupancy rights he may have in the ianC as a member gí ihe iriie."

ld. ai $ 41 illustratlon ! (enrphasis acided). The É,ssociaiion brcughi the piioi'suii'io

vincjioaie its coniiactual righrs. lnsofar as the petiÍioner-s íiíed the present suit cased on

41



The third element is also satisfied. The prior litigation was .dlsmlssed with

prejudice based upon the filed stipulation. The dismissal with prejudice was a f inal

judgment. See Cathedral of the 8eechwoods v. Pare, 138 N.H. 389, 391 (1994); Moore

v. Town of Lebanon, 96 N.H. 20, 22 (1949). That judqrnent has a "preclusive effect as

to both what was actually litigated and everything that could have been litlqated."

Cathedral of the 8eechwoods, 138 N.H. a t 391 .

. A t various points in their pleadings and oral argument, the petitioners have

questioned whether the Association should have entered into the stipulation t o dismiss

the prior suit with prejudice. They claim that the stlpulatlon and dlsmlssal are "tainted"

and should not be given res judicata effect. The Court finds that iitigation of' these

arguments is barred by the Bricker doctrine. See Bricker v. N.H. Medical Societv, 1 '10

N.H. 469 (1970). Under Bricker, "[jjudicial interference in the internal affairs of

associations is strictly limited and will not be undertaken in the absence of a showing of

injustice or illegal action and resulting damage to the complaining member." Id. at 470.

Viewed in the light most favorable to the petitioners, the facts set forth in the petition

and the Objection to the motion for summary judgment regarding the eiection of the new

executive cornmittee and termination of the prior iitigation do not show injustice. or

illegality. The petitioners allege basically that the new executive committee was elected

after openly campaigning against the litigation. Once elected, i t took measures to

terminate the litigation. Those measures included working with counsel, the respondent,

and the respondent's counsel to draft the stipulation, These facts do not dernonstrats

injustice or iliegailty that would justify the Court invoivlng itself in the internal affairs of

43

The third elemeni is also satisfied, The prìor litigaiion was .disrnisseci wiih

prejuclice basec upon the fïred siipuraticn. The cjjsmissai rr,iith prejudice was a fina!

judgment, Seg , 138 N.H. 389, 39.1 (199a); Moore

v. Town oí Leb?non, 96 N.H. ?0,22 (tgafi. That judgmeni has a ,'preclusive efíeci as

io both what was actually litigaied and everyrthing inat couid have been iîilgated."

Cathed¡-al of thq.BeechwgcCs, ,i3g N.H. at 3g,l .

At various points in their oleadings and cial argumeni,, the peiiiioners ha,re

ouesiíoned whether the Association shoi.lld har.,e entered into the stipulation to ciismiss

the piioi' suit with prejudice. They ciaim that ihe stipulation and dismissa! are "tainted,,

and shouid not be glven res jucficata efíect. The Couri fìncls that iitigation of these

arguments is barreci by the Sricker docirine, See Bricke¡ v. N.l-.{. MeCicaì Societr..,, i,iC

N.H. 469 (1'970). Under Bricker, ,[tudicial interierence in the iniei-nai aifairs oí

associaiions is str-ictly limÌted and will not be undeftaken in the absence of a showing of

Ínjus'rice or illegal acticn ancÍ i-esuliing ciamage to the comolaìning member,,lc, aT4TC.

ViewecJ in the lighÍ most favoiabie ic the petitioners, the íacrs set forth in the petitjori,

and Íhe objection to the motion foi' summary jucjgmeni i-eEarding the eiection of the new

executit'e commitiee and terminaÉÌon of ihe crior iiiigation cio not show injusticè cr

ilieEaliiv. Ths peÍiiioneis allece basically thai the nô-w execuiive ccmmiitee vras elected

after openly campaigninE against the iitigaticn. Once elacied, ii took measuies io

ierminaie the liiigaticn. Thcse meesures inclucled woi'king with counsel, the ¡o-sDoncjen.r,

and the respcndeni's counsel io iiaft ihe siipuiaiion, These facis do not demcnsiraie

injustice or iilegaiity that woulC jusrifir the Court invoiving itseif in the jnternal afrairs oí

43



the Associat ion. The Court wiH not, therefore, look behind the Association's reasons for

entering into the stipulation. The dismissal with prejudice was a finaljudqment for res

judicata purposes.

Because the three elements of res judicata are satisfied, the Court rules that the

petitioners' contract clams based on their status as members of the organization ar e

Third-Party Beneficiaries


The petitioners' second theory is that they are intended third-party beneficiaries

of the alleged express or implied-in-fact contract to maintain parity. Counts! and II o f

the petition are premised on third-party beneficiary status. In considering this argument,

the Court assumes, without deciding, that the 1891 Agreement is a contract to maintain

parity. The Court finds that the respondent is entitled to summary judgment because

the facts, viewed most favorably to the petitioners, do not show that each alumnus o f

Dartmouth College is an intended third-party beneficiary of the contract.

"A third-party beneficiary relationship exists if . .. the contract is so expressed

the promisee as one of the motivatina causes of his rnaklno the contract." Tarncosi. Q -

as to give the promisor reason to know that a benefit to a third party is contemplated by

Associates v. Star tvikt. Co., 119 N.H. 630, 633 (1979). "A benefit to a third party is a

'motivating cause' of entering into a contract only where the promisee intends to 'giv8

the beneficiary the benefit of the promised performance." Grossman v. Murray, ·,44

N.H. 345, 348 (1999) (quoting Restatement (Second) of Contracts § 302(1)(b) (198'1)) .

"Unless the performance required by the contract will directly benefit the would-be

44

ihe Association. The Couri wifl not, therefore, lcok behind ihe Asscciatioiì's reasons fcr

entering intc the siipulaticn. The cjisnrissal v¡ith orejuciice vvrr5 ¿ final.judgment íoi.res

judicata puiposes,

Because the thres elements cf res jucjicata

petítjoners' contract ciaims based on their staiu_q

barred b¡r i'es juciicaia.

ïh ird -P arty tseneficia ries

Ïire petitioners' seccnd theory is that tney are intendeC third-party beneflciaries

of the allegeci expiess or implieci-in-fact conti'aci to maintain parity. Counts I anc ll oi

the peiiiion are premised cn third-pariy beneíicìary status, ln considering this argumeni,

ihe Couñ essumes, withcut cjeci.cing, thai the 1891 Agreement is a contracîio mainiain

larit5r. The Court finCs that the resÞoncieni is entitled tc surnmary juc]grneni because

the facts, vjewed most Íavorabìy, 1o the petiiioners, do not show that each alumnus oi

Danmouth college is an iniencjed thii-d-pai-ty beneficiary oí the contiact.

"A thirc-pariy beneficÍary relationship exists ií . . , the ccniract is sc e>rDressed

as io give the promisoi reason io know ihai a benefìt to a thiid party is conternpiated by

the promisee as one oí the moiivating causes of his making the conti-ac-r," Tamocsi

.A.ssociaies r.'. siar lviii<t. co., i ig N.H, 630, û33 (1g7g). "4 benefit tc a third party is a

'rnotivaiing caLJS€' oí entering inio a ccntract oni'y where the pronrisee inienis to ,give

tne beneficíary the benefii cf the prornised penoimance,"'Grcssman ri, Mu¡iav, i44

l{.H.3'45,348(1999)(quoiings302(i)(b)(198îj)

"'unless the períormance requireo by the coniraci will cjirecilv benefìi ihe wouici-be

are saiisfied, the Court ru)es tha,r the

as members cf the orEanization ai.e

44



intended beneficiary, he is at best an incidental beneficiary." ! . f L (quoting Public Service

Co. of N.H. v. Hudson Licht & Power, 938 F.2d 338, 342 (1st Cir. 1991)). To establish

that they are intended third-party beneficiaries, the petitioners would have to show that

"recognition of a right to performance in [them] is appropriate to effectuate the intention

of the parties" to the alleged contract and that the "circumstances indicate that the

promisee intendjed] to give [them] the benefit of the promised performance."

Restatement (Second) of Contracts § 302(1 ).

The petitioners' claim that they are intended third-party beneficiaries is belied by

their admission that the members of the Association could vote to empower th e

executive committee to end the alleged parity agreement. For the trier of fact to find thai

every alumnus is an intended beneficiary of the alleged contract, it would have to find

that recognition of a right of performance in every. individual alumnus is appropriate to

effectuate the intent of the parties at the time they entered into the 1891 ,.b.,greement.y

admitting that the Association, 2S a collective entity and without a unanimous vote of ail

members, could vote to eliminate parity, the petitioners necessarily concede that a righi

of performance in each alumnus is not appropriate and should not be recognized in

order to effectuate the intent of the parties to the 1891 Agreement.

Also, the circumstances of the 1891 Agreement do not show that the parties to it

intended a benefit to flow directly to each alumnus in his or her individual capacity. No

facts regarding the circumstances of the 1891' .Agreement are in dispute. The 1891

,Agreement gave the Association, as a single, collective entity, the ability to name five

trustees. It did not give each individual alumnus a right to do so. The undisputed fasts

45

intended benefìciary, he is ai besi an incidentai beneficiary."' ld. (quoting Pubiic Service

Cc. oí N,H. v. l-iudson Licht & Po'+rer, 938 F.2cj 338, 342 (1si Cir. 1991)), To esrabtish

ihat they are infencjed third-pari5r beneficiaiies, ihe petitioner-s would have tc show that

"i'eccAniiion oía r-ighi io períormance in [them] is appropriate to efÍectuaie the inieniicn

ci the parties" io the alieged coni¡act and ihai the "circurnstances indica',e 'rhai ihe

promisee iniend[ed] io give fthem] ihe benefii of the promised peiiormance."

Resiaiemeni lSecond) of Contiacïs S 302i1).

The petitioners' ciairn that they are intended third-paÉir beneficiaries is belìed by

iheit acjmissìcn ihai the membe¡s oÍ the Assoclation could vote to enrpov;ei' tha

execufive comñríitee to end the alleged pariiy agreement. Foi'the iriei of facÌ io iìnd thai

every alumnus is an intencjecj beneficiê4, cí ihe atlegeC contiaci, ii v¡cuic have to Íìnd

thai reccgnition oí a i-ighi of perioi'mance in every-incjividual aiunrnus is aoprooria.re io

effectuate ihe inieni of the parties atihe tinreth=¡,s¡¡-r"d into the ,1801 Agrse;.neni. tsV

acjmitting that the ,Associaiion, es a colleoiive entit¡r and wiihout a unanirnous vo.re of ail

mernbers, cculd vote to ef iminate partiy, the peiiiioneis necessarily concecje ihat a righi

oí peifcirnance in each alumnus is not aoprooi-iate and shculd not be recognìzed in

o¡'o'ei io effectuate the inÉent of the parties to the í8g1 Agi^eemeni.

Alsc, ihe circumstances of ihe '1891 Agreement do not shcv,'rhat the pa;'iies to iî

intended a benefit io flow ciirectfy to each alumnus in his oi' her individuai capacity. Nc

íacts i-egarcÌing ihe circurnsiances oí the 189í Agreement ai'e in cíispute. The 'í83'i

Agi'=ement gave the Assoclar.ion, as a single, colieciive eniity, the abilit¡r io namé five

irustees. Ìt cjic not gir,,e each iniivioual alumnus a righi to cio so. Tne undispuÍec! facts

45



do not show that the parties to the 1891 ,Agreement intended each member of the

Association and all future. members of the Association to have the benefit, in their

individual capacities, of being able to nominate half of the members of the Board. The

Association currently has approximately 69,000 members. The 1891 Agreement

conferred a benefit on alum ni, not on each alumnus. In order to effectuate th e purpose

of the 1891 Agreement:.-.giving alumni a greater role in management of Dartmouth

Colie9e-it is not necessary or appropriate to recognize a right of performance in each

individual alumnus. The 1891 Agreement would be entirely unworkable if it were

interpreted to confer such a benefit and if such a right of performance were recognized.

J t is unquestionable that each alumnus derives some benefit f rom membership in

the Association and, in turn, from the 1891 Agreement. In fact, each alumnus l ikely

derives a benefit from any number of contracts into which the Association has entered.

This does not necessarily mean that each alumnus is an intended third-party

beneficiary of every contract the Association has entered. Cf. Numerica Savinos Bank

v . Mountain Lodae Inn, 134 N.H. 505, 512 (1991) (recognIzing that corporate

shareholders are not intended beneficiaries of every contract entered into by the

corporation). "Performance of a contract wili often benefit a third person. But unless the

third person is an intended benefic iary ... no duty to him is created." Restatement

(Second) of Contracts § 302 comment g. The undisputed facts surrounding the

formation of the 1891 Agreement viewed most favorably to the petitioners could not

show that the petitioners are intended third-party beneficiaries, even though the

agreement benefits them.

46

cjo noi show thai ihe parties to the'i891 Agreement intencjad each nrember of the

,Á.sscciatic¡r and alt fuiure members of the Assoclation to have the beneíii, in their

indivicjual capacities, of being able to nominaie half of the members oí ihe Board. The

Association currently has aoproximately ô9,000 mernbers. The i gg1 Agreeme;ri

conferied a benefii on alumnj, not cn each alumnus. In oi-der to eäectuaie the purpcse

of the i8'oi Agrec¡¡s¡{-siving alumni a greatei'role in management of Daftmouth

Colieg+-it is not nêcessary or approprlate i.o recognize a right of pei-iormance in each

indiviciual aiumnus. The 1891, Agieement woulC be entirsly unworliable ií it were

lntei'preied to ccnfer such a benefit and if such a righi cf periormance were recognized.

li is unquesticnable that each alumnus derives some benefii from membership in

the É.ssociaticn and, in turn. Írom r'he 1891 Agreement. ln íact, each aiumnus likeiy

derives a beneiit fi'o;'n any number of conrracts into which the Âsscciation has enrerec..

This cioes noi necessarily mean thai each alumnus is an iniencied third-oariy

beneficiary of every contract the ,¡,ssoc;ation has entei-ed. Cí. Numerica Savinos tsank

y. Mouniain Locjoe lnn, 134 N,H. 50s, 512 (1gg1) (recognizing thai ccroo;-aie

shareholcjeis are noi intended beneiiciaries of evÊry ccnii'act eniered intc b¡r ihe

corpoi'aiicn). "Perormance oí a contiact wilÌ often benefit a thi¡d person. But uniess the

ihird perscn is an inienced beneíiciary nc duiy to him is ci-eated.'' Restaterne¡i

lseccnd) oi Coniracis S 302 comment g. The uncjispuied facts sui-i-ounCing tne

icrmation oí the 'iBg1 Agreenr:nt vjewed mosÍ favoiabiy to tha peiiiioners couìd

show that the peiiiionsis are iniendeC thírd-paÉy, beneficiaries, ev=n thouqh

agreement beneiits ihern.

nof

the

46



The Court has analyzed each of the petitioners' three theories of the case. The'

issue in the prior lawsuit. The Court f inds and rules that this claim is barred by res

iudica a for the same reasons that the contract claims are barred by res judicata.

rv . Conclusion

Court f inds 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

Dated: January !?, 2010Timothy J. Vaug'hanfPresiding Justice

judgment is GRANTED.

SO ORD ER ED .

plaintiffs appeal brief 0910

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