Specifically, he contends that because the disciplinary action stated in the January 10 letter — suspension without pay for one week — violated RSA 275:43-b, Syncom's threat to impose that action constituted a material anticipatory breach of the key employment contract. An anticipatory breach of contract occurs when a promising party repudiates his obligations either through words or by voluntarily disabling himself from performing them before the time for performance. LeTarte v. West Side Dev. Group, 151 N.H. 291, 294 (2004). The action that qualified as an anticipatory breach in LeTarte was a developer's failure, over the course of approximately three years, to make any of the nineteen separate $1,000 payments it owed a landscaping contractor.

Under New Hampshire law, "[i]n instances of anticipatory breach, the non-breaching party has the option to treat the repudiation as an immediate breach and maintain an action at once for damages." LeTarte v. West Side Dev. Group, 151 N.H. 291, 294, 855 A.2d 505 (2004). "An anticipatory breach of a contract occurs when a promising party repudiates his obligations either through words or by voluntarily disabling himself from performing them before the time for performance."

“An anticipatory breach of contract occurs when a promising party repudiates his obligations either through words or by voluntarily disabling himself from performing them before the time for performance.” Syncom Indus. v. Wood, 155 N.H. 73, 83-84, 920 A.2d 1178 (2007). Interestingly, as we noted in Syncom, the action constituting anticipatory breach in both of our leading cases on the subject, LeTarte v. West Side Development Group, LLC, 151 N.H. 291, 855 A.2d 505 (2004), and Hoyt v. Horst, 105 N.H. 380, 201 A.2d 118 (1964), was the failure to make payments under the contract. Id. at 84.

190 Elm St. Realty v. Beaudoin, 151 N.H. 205, 206 (2004). Because the meaning of a lease agreement is ultimately a matter of law for this court to decide, including the determination of whether a term is ambiguous, see N.H. Water Res. Council v. Steels Pond Hydro, 151 N.H. 214, 215 (2004), we review the trial court's interpretation of a lease agreement de novo, see LeTarte v. West Side Dev. Group, 151 N.H. 291, 294 (2004). We will give the language used by the parties its common meaning as understood by reasonable people and, in the absence of ambiguity, we will determine the parties' intent from the plain meaning of the language used. N.H. Water Res. Council, 151 N.H. at 215.

190 Elm St. Realty v. Beaudoin, 151 N.H. 205, 206 (2004). Because the meaning of a lease agreement is ultimately a matter of law for this court to decide, including the determination of whether a term is ambiguous, see N.H. Water Res. Council v. Steels Pond Hydro, 151 N.H. 214, 215 (2004), we review the trial court's interpretation of a lease agreement de novo, see LeTarte v. West Side Dev. Group, 151 N.H. 291, 294 (2004). We will give the language used by the parties its common meaning as understood by reasonable people and, in the absence of ambiguity, we will determine the parties' intent from the plain meaning of the language used. N.H. Water Res. Council, 151 N.H. at 215.

Did Lakeview Repudiate or Anticipatorily Breach the Extended Term Lease? Under New Hampshire law, a contract is repudiated, or an anticipatory breach occurs, when a party either unmistakably repudiates his obligations through words or voluntarily disables himself from performing them before the time for performance.LeTarte v. West Side Dev., LLC, 151 N.H. 291, 294 (2004) (citing 9 A. Corbin, Contracts § 959 (interim ed. 2002)). Anticipatory repudiation requires an unequivocal expression of intent to forego performance in the form of a definite and final communication.

If a party to a contract "voluntarily puts it out of his power to perform," that action constitutes breach of the contract. LeTarte v. West Side Dev., LLC, 151 N.H. 291, 296 (2004). Contract interpretation is a legal determination, which is made by the court.

Defendants' argument suffers from a basic problem. Under applicable New Hampshire law, the doctrine of anticipatory repudiation applies only when an agreement exists — that is, plaintiffs could only repudiate an existing agreement. See Syncom Indus., Inc. v. Wood, 155 N.H. 73, 83-84 (2007) (citing LeTarte v. West Side Dev. Group, 151 N.H. 291, 294 (2004)). The agreement defendants posit is an extension of the original leases on the facilities at issue.

"An anticipatory breach of a contract occurs when a promising party repudiates his obligations either through words or by voluntarily disabling himself from performing them before the time for performance." LeTarte v. W. Side Dev., LLC, 151 N.H. 291, 294 (2004). The non-breaching party has the option of bringing suit immediately when an anticipatory breach or a breach of a continuing contract occurs but is not required to do so.

Maryland Cas. Co. v. W.R. Grace Co., 1996 WL 306372 at *1 (S.D.N.Y. June 7, 1996) (citations and internal punctuation omitted). See also LeTarte v. W. Side Dev. Group, LLC, 151 N.H. 291 (2004); Hoyt v. Horst, 105 N.H. 380 (1964). As for Enterasys' breach of contract claim, it is unclear what Enterasys believes it is entitled to that Clarendon has refused to provide.