Opinion
216-2020-CV-00555
02-20-2024
New Hampshire Electric Cooperative, Inc. v. Consolidated Communications of Northern New England Company, LLC
ORDER ON PARTIES' MOTIONS TO RECONSIDER
David A. Anderson, Associate Justice.
Plaintiff New Hampshire Electric Cooperative ("NHEC") filed suit on July 31, 2020, against Defendant Consolidated Communications ("Consolidated") alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment/quantum meruit. Plaintiff also seeks a number of declaratory judgments pertaining to the timing, effect, and scope of the termination of an agreement between the parties. (Pls.' Compl. (Doc. 1.)) Defendant has filed a counterclaim, seeking its own declaratory judgments and alleging claims for rescission, breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. By order dated December 8, 2023, which is incorporated herein, the Court denied NHEC's motion for partial summary judgment while also finding that one of Consolidated's primary arguments was incorrect as a matter of law. (Doc. 159.) Both parties now move to reconsider the parts of the order averse to them. (Pl.'s Mot. (Doc. 160); Def.'s Mot. (Doc. 162.)) Both parties object. (Pl.'s Obj. (Doc. 164); Def.'s Obj. (Doc. 163.)) For the reasons stated below, the Court DENIES in part and GRANTS in part NHEC's motion and DENIES Consolidated's motion.
By way of brief background, NHEC and Consolidated's predecessor in interest entered into a General Agreement Joint Use of Wood Poles ("JUA") on July 1, 1977. The JUA establishes that the parties could supplement the JUA through intercompany operating procedures ("IOP"s). The parties' present dispute revolves around IOP No. 8, which established joint vegetation management standards. In particular, IOP No. 8 allocated how the parties would split vegetation management costs, with NHEC invoicing Consolidated for forty percent of said costs each year. (Doc. 160, Ex. 1 § IV(A)(2).) In 2019, Consolidated stopped paying NHEC's billed invoices. This lawsuit followed.
Analysis
"A motion for reconsideration allows a party to present, [with particular clarity,] points of law or fact that a court has overlooked or misapprehended." Broom v. Cont'l Cas. Co., 152 N.H. 749, 752 (2005); see also Super. Ct. Civ. R. 12(e). A party is not permitted to introduce a new legal argument which could have been raised and argued earlier. See Taylor v. Sch. Admin. Unit #55, 170 N.H. 322, 331 (2017) (holding trial court not required to address an argument raised for the first time in plaintiff's motion to reconsider where plaintiff made no showing of an inability to raise the argument previously). Neither can a party use a motion for reconsideration to re-litigate issues the court has already decided. See Northwest Bypass Grp. v. U.S. Army Corps of Eng'rs., 552 F.Supp.2d 137, 144 (D.N.H. 2008) (noting that a motion for reconsideration is not the proper vehicle to revisit an argument a court has already denied).
NHEC asks the Court to reconsider its holding that the express language of IOP No. 8 Section II(B)(1) did not include tree removal within the scope of what vegetation management services that NHEC could so invoice Consolidated. (Doc. 160 ¶ 3.) NHEC argues that the Court construed IOP No. 8's language too narrowly and the document read as a whole contemplates that NHEC could invoice Consolidated for tree removal. (Id. ¶ 6.) At the very least, according to NHEC, the word "clearing" and phrase "trimming of trees and limbs" interjects ambiguity about whether tree removal comes within the scope of IOP No. 8 Section II(b)(1). (Id. ¶ 22.) Consolidated objects, arguing that the Court correctly considered the plain language of Section II(b)(1). (Doc. 163 ¶ 1.)
Consolidated moves the Court to reconsider its ruling as a matter of law that IOP No. 8's collaboration requirement was not a condition precedent for its obligation to pay NHEC's billed invoices under IOP No. 8. (Doc. 162 ¶ 14.) Consolidated argues that the Court's interpretation of IOP No. 8 Section III(a)(2) was divorced from the contract's plain language and that the section clearly provides that Consolidated is only liable to pay NHEC's invoices if they were the product of mutual collaboration as outlined in Section III(a)(2). (Id. ¶ 13.) NHEC contends that the Court appropriately considered the section's plain language in finding that its alleged lack of compliance with Section III(a)(2) did not excuse Consolidated's non-payment of NHEC's billed invoices. (Doc. 164 ¶ 5.) The Court will consider each motion in turn.
I. NHEC's Motion to Reconsider
In its December 8, 2023 order, the Court denied NHEC's motion for summary judgment because it found that Consolidated sufficiently demonstrated that there was a question of material fact over whether NHEC's invoices complied with IOP No. 8 Section II(b)(1). (Doc. 159 at 13.) In particular, the Court found that the section's plain language expressly did not include tree removal as a type of service that NHEC could bill for under Section 11(b)(1). (Id. at 10-11.) NHEC thus argues that the Court misapprehended a point of law when it failed to consider the phrase "Maintenance ReClearing shall include ground cutting, trimming of trees and limbs. . ." within the context of IOP No. 8 as a whole. (Doc. 160 ¶ 8.) The Court agrees with NHEC to the extent that it argues that the Court's order too narrowly construed the above language. However, the Court still finds that a dispute of fact exists over whether tree removal falls within Section II(b)(1)'s scope and whether NHEC's invoices so complied.
Consolidated urges the Court not to consider this argument because it is a new argument. The Court disagrees and will entertain the argument because NHEC broadly argued in its summary judgment papers that tree removal came within the scope IOP No. 8 Section II(B)(1).
"When interpreting a written agreement, we give the language used by the parties its reasonable meaning, considering the circumstances and the context in which the agreement was negotiated, and reading the document as a whole." Birch Broad., Inc. v. Capitol Broad. Corp., 161 N.H. 192, 196 (2010). A court will give a contract's language its plain and ordinary meaning unless the language of the contract is ambiguous. See id. "The language of a contract is ambiguous if the parties to the contract could reasonably disagree as to the meaning of that language." Id. "If the agreement's language is ambiguous, it must be determined, under an objective standard, what the parties, as reasonable people, mutually understood the ambiguous language to mean." Id.
"In applying this standard, a court should examine the contract as a whole, the circumstances surrounding execution and the object intended by the agreement, while keeping in mind the goal of giving effect to the intentions of the parties." Id. at 196-97.
"As a general rule, the interpretation of a contract is an issue of law for [the trial court] to resolve." Dillman v. N.H. Coll., 150 N.H. 431,434 (2003). "Where, however, there are disputed questions of fact as to the existence and terms of a contract, they should be resolved by the jury." Id. In such a case, "the question of a contract term's meaning should be left to the trier of facts unless the meaning of the extrinsic evidence is so clear that reasonable men could only reach one conclusion." Galloway v. Chi.-Soft, Ltd., 142 N.H. 752, 756 (1998).
Upon review of IOP No. 8's plain language, the Court finds that its previous analysis of Section II(B)(1) too narrowly focused on the absence of the phrase "tree removal" from the section's definition of maintenance re-clearing. Indeed, the preceding sentence, which provides that maintenance re-clearing shall mean "[r]e-clearing necessary to restore and/or maintain existing rights-of-way to the appropriate Joint Vegetation Management Standard. . ." suggests that the type of vegetation management practices that can be billed under that section are broader than those specifically listed later in the section. The definition of "re-clearing" is more focused on the end result-restoring and maintaining the right of way-rather than the specific method used to achieve said result.
Moreover, as NHEC points out, the definition of clearing broadly refers to removing obstacles or impediments out of the way. See Clear, Oxford English Dictionary, date accessed Feb. 12, 2024 (defining the verb "to clear" as "[t]o free from obstructions, obstacles, impediments, things or persons that obstruct or cumber a space; to make open or void for passage or operations"). Accordingly, the Court misapprehended IOP No. 8's broad language in its December 8, 2023 order and now finds that considering the section's broad language, its holding that the plain language expressly does not include tree removal was erroneous. See Moore v. Grau, 171 N.H. 190, 194 (2018) ("When parties use expansive, unrestricted language, we will give those phrases their normal, broad reading.").
https://www.oed.com/dictionary/clear_v?tab=meaning_and_use#9336678.
The Court finds, however, that IOP No. 8 Section II(B)(1) is ambiguous as to whether it encompasses tree removal. As the Court noted above and as Consolidated indicates, tree removal is not expressly mentioned amongst the specific list of other activities that clearly constitute maintenance re-clearing under Section II(B)(1), such as "ground cutting, trimming of trees and limbs, and the application of appropriate herbicides." (Doc. 160, Ex. 1) (emphasis added). This reasonably suggests that tree removal does not come within the scope of maintenance re-clearing. See Birch Broad., Inc., 161 N.H. at 196. On the other hand, the broad language used throughout the section reasonably suggests that tree removal could come within the section's scope.
Additionally, the use of the phrase "trimming of trees and limbs" also interjects ambiguity into the section because that phrase could be read to reasonably contemplate tree removal because otherwise using both the terms "trees" and "limbs" could be seen as redundant. See Hoyle, Tanner &Assocs., Inc. v. 150 Realty, LLC, 172 N.H. 455, 466 (2019) (interpreting a contract's plain language in a manner to avoid rendering a phrase superfluous). Therefore, the Court finds that there are reasonable, conflicting interpretations of IOP No. 8 Section II(B)(1) over whether tree removal is included within the scope of maintenance re-clearing. See Birch Broad., Inc., 161 N.H. at 197 (finding that the term "date hereof" was ambiguous because both of the parties' arguments were reasonable given that the contract was comprised of multiple documents executed on different days).
Next, the Court must determine whether it can resolve the above ambiguity as a matter of law by examining the parties' extrinsic evidence. See Galloway, 142 N.H. at 756. NHEC points to two affidavits in the summary judgment record which explain that "[i]n the vegetation management industry, 'trimming, cutting, and pruning' refer to all vegetation management activities, including the removal of entire trees where appropriate." (Geronaitis Aff. (Doc. 139) ¶ 38; Mazzei Aff. (Doc. 144) ¶ 16.) According to NHEC, the above affidavits clearly demonstrate that the parties intended the scope of IOP No. 8 Section II(B)(1) to include tree removal. (Doc. 160 ¶ 15.)
The Court is not so convinced. Crucially, the extrinsic evidence NHEC relies upon demonstrates that there are some circumstances where maintenance re-clearing could encompass tree removal. However, that does not provide overwhelmingly onesided evidence that the parties intended for Consolidated to be liable to pay invoices for all tree removals. See Galloway, 142 N.H. at 756. Likewise, as Consolidated so argues, this is not a situation where the parties' course of conduct clearly demonstrates that the parties intended to include tree removal within the scope of IOP No. 8 because it is unclear based on the current state of discovery the exact scope of invoices that Consolidated previously paid. (See Doc. 163 ¶ 10); cf. Birch Broad., Inc., 161 N.H. at 198 (holding that when the parties continued to perform on the contract after the first potential closing date demonstrated that the parties intended for the closing date to be the later possible date). Therefore, both the questions of whether IOP No. 8 Section II(B)(1)'s scope includes tree removal and whether NHEC's billed invoices so comply with said scope are factual questions best left for the jury to resolve. See Galloway, 142 N.H. at 756.
NHEC also relies on deposition testimony from Gary Auclair, Consolidated's employee, in which Auclair explained tree trimming could encompass tree removal. (Doc. 161.) This deposition testimony is not a part of the original summary judgment record, making it inappropriate for the Court to consider it on reconsideration. However, even if the Court were to consider it, the uncertain language used in the deposition does not change the Court's analysis.
Accordingly, NHEC's motion to reconsider to the extent that it argues that the Court misapprehended points of law in ruling that IOP No. 8 Section II(B)(1)'s scope expressly does not include tree removal is GRANTED but the motion is DENIED to the extent that it seeks a ruling as a matter of law that Section II(B)(1) contemplated tree removal and that NHEC's billed invoices complied with its scope. Broom, 152 N.H. at 752.
II. Consolidated's Motion to Reconsider
Broadly, in objection to NHEC's motion for summary judgment, Consolidated argued that NHEC's failure to comply with IOP No. 8 Section III(A)(2)'s collaboration requirement discharged its obligation to pay NHEC's billed invoices. As a matter of law, the Court held in its December 8, 2023 order that Consolidated's collaboration argument failed because the Court found that Section III(A)(2) is neither a condition precedent nor would NHEC's purported lack of collaboration constitute a material breach of IOP No. 8. (Doc. 159 at 7-9.) The Court also found that Section III(A)(2) confers a duty upon NHEC to collaborate if Consolidated requested collaboration to resolve a dispute over a specific invoice. (Id. at 9.)
As a preliminary matter, the Court will accept Consolidated's invitation to clarify its interpretation of IOP No. 8 Section III(A)(2). Consolidated maintains that the Court's emphasis on disputed invoices creates a nonsensical and inverted process because the whole point of the collaboration requirement was to minimize the number of invoice disputes. The Court agrees that its focus on a specific disputed invoice triggering NHEC's duty to collaborate is too narrow and limited. However, the Court still finds that the duty to collaborate enshrined in Section III(A)(2) is only triggered upon Consolidated's request to meet and collaboratively develop a mutually agreeable maintenance re-clearing plan and budget. In other words, in order for Consolidated to show that NHEC's purported non-compliance with the Section III(A)(2) is a material breach of IOP No. 8 sufficient to provide Consolidated with legal excuse not to pay NHEC's billed invoices, it must show that it clearly asked NHEC to collaborate and NHEC clearly refused.
The Court's clarified interpretation of Section III(A)(2) comports with the Section's plain language. The Section provides:
NHEC and FairPoint shall meet on or before September 1 of each year or another mutually agreeable date in advance of company budget cycles to collaboratively develop a Maintenance Re-Clearing plan and budget for the following year. NHEC shall then prepare the Maintenance Re-Clearing plan for the areas described in Section III(A) of this IOP, and shall manage such Maintenance Re-Clearing. NHEC and FairPoint shall review Maintenance Re-Clearing schedules at least monthly during the trimming season. NHEC and FairPoint shall review Maintenance Re-Clearing that is not completed on schedule and shall collaboratively develop a plan to resolve such Maintenance Re-Clearing.(Doc. 160, Ex. 1 § III(A)(2).) The Court's interpretation reflects the Section's broad language in finding that the requisite trigger for NHEC's duty to collaborate is a general request to meet and collaborate rather than to resolve a specific dispute. See Moore, 171 N.H. at 194. Additionally, the Court's interpretation respects the sequential process laid out in Section III(A)(2) by putting the focus more on the collaboration itself rather than its end product. However, as the Court will more fully explain below, this clarified interpretation does not provide Consolidated with an escape hatch to stop paying for invoices that it may dispute in all circumstances.
Next, the Court will address Consolidated's contention that the Court misapplied principles of law in deciding that Section III(A)(2) is not a condition precedent. The Court notes that Consolidated's arguments are largely duplicative of those the Court previously rejected, which are inappropriate for a motion to reconsider. See Nw. Bypass Grp., 552 F.Supp.2d at 144. Now, Consolidated maintains that the phrase "collaboratively develop" which precedes the phrase "NHEC shall then prepare the Maintenance Re-Clearing plan" serves as an if/then statement which creates a condition precedent. (Doc. 162 ¶ 14.)
The Court is not persuaded. Consolidated's argument essentially asks the Court to find that when a contract contains a sequence of some sort, individual steps in said process serve as a condition precedent for the entire contract. The Court imagines a scenario where a contract for a custom built home lays out a sequence in which the painter shall paint each individual room. Using Consolidated's logic, if the painter were to paint the bathroom before the living room in contravention of the established sequence, the sequence itself is a condition precedent that could allow the homeowner to claim the contract is unenforceable because the rooms were painted out of order. This strikes the Court as stretching the limits of conditions precedent, especially considering that they are disfavored in the law. Greenwald v. Keating, 172 N.H. 292, 298 (2019) ("Conditions precedent are not favored in the law, and we will not construe contracts to include them unless required by the plain language of the agreement in question."). Accordingly, because Consolidated fails to point to any plain language in IOP No. 8 Section III(A)(2) that makes collaboration a condition precedent for Consolidated's payment of NHEC's invoices, the Court has not overlooked any point of law as to this issue. Id.
Consolidated next argues that even if the collaboration requirement is not a condition precedent, Section III(A)(2) is still a binding contractual provision with which NHEC must comply. (Doc. 162 ¶ 15.) Essentially, Consolidated contends that the Court misapprehended points of law in its December 8, 2023 order when it determined that NHEC's purported lack of compliance with Section III(A)(2) was not a material breach because NHEC must show that it complied with the entirety of IOP No. 8 before it can recover for breach of contract. (Id.) Relatedly, Consolidated also maintains that the Court misapplied the material breach doctrine because it is an affirmative defense applicable only after liability for breach of contract has been established. (Id. ¶ 19.)
In essence, Consolidated argues that NHEC cannot recover for breach of contract unless it complied with the entirety of IOP No. 8. As a matter of law, that contention is incorrect. It is clear that under New Hampshire law that "[n]ot every breach of duty by one party to a contract discharges the duty of performance of the other." Fitz v. Coutinho, 136 N.H. 721, 724-25 (1993) (quoting Corbin on Contracts § 1253, at 9-10 (1962)). Moreover, materiality of said breach is the touchstone of determining when the non-breaching party's non-performance rises to a level that would render the entire contract unenforceable. See id. ("Only a breach that is sufficiently material and important to justify ending the whole transaction is a total breach that discharges the injured party's duties."); see also Pepsi Midamerica v. Harris, 232 S.W.3d 648, 654-55 (Mo.Ct.App. 2007) (finding that the non-breaching party must substantially comply with a contract in order to prevail on a breach of contract claim, which requires that deviation in performance be "slight").
Consequently, the Court did not misapprehend points of law in analyzing whether NHEC's purported breach of IOP No. 8 Section 111(A)(2) was material. In assuming NHEC breached, the Court needed to determine whether said breach was material in order to resolve Consolidated's argument that the breach prevented NHEC's potential recovery for Consolidated's failure to pay invoices. Contrary to what Consolidated appears to suggest, NHEC's purported failure to comply with Section 111(A)(2) does not automatically defeat its ability to prevail on its breach of contract claim. Fitz, 136 N.H. at 724-25. As NHEC points out, the only requirements under New Hampshire law for it to prevail on its breach of contract claim is to show "a failure without legal excuse to perform any promise which forms the whole or part of a contract." Teatotaller, LLC v. Facebook, Inc., 173 N.H. 442, 447 (2020). Therefore, the Court appropriately analyzed the materiality of Section III(A)(2) on summary judgment. Fitz, 136 N.H. at 724-25.
Next, the Court addresses Consolidated's arguments about the materiality analysis itself. In its December 8, 2023 order, the Court found that NHEC's breach of Section III(A)(2) would only be material if there was evidence suggesting that Consolidated asked to collaborate and NHEC refused. (Doc. 159 at 9.) The Court so reasoned because only that circumstance would substantially defeat IOP No. 8's purpose, which the Court found to be: "(1) creating vegetation management standards to comply with national standards and (2) establishing a joint agreement to allocate costs for maintenance re-clearing costs." (Id. at 8.) Thus, under the Court's above clarified interpretation of Section III(A)(2), the breach would only be material if Consolidated asked NHEC to collaborate and NHEC expressly refused.
Consolidated maintains that the above analysis overlooked a third purpose of IOP No. 8, namely "to establish. . .roles and responsibilities for the clearing and reclearing activities." (Doc. 162 ¶ 21.) To the extent that the Court overlooked this purpose in its analysis, the Court finds that the breach is only material upon steadfast refusal to collaborate. IOP No. 8, as a whole, lays out which party is going to be responsible for what specific activities. For example, Section IV(A)(1-3) broadly allocates the portion of maintenance re-clearing costs that each party agrees to pay. Contrary to Consolidated's arguments otherwise, the lack of collaboration envisioned in Section III(A)(2) does not detract from how the agreement otherwise establishes roles and responsibilities for re-clearing. Thus, absent express refusal, lack of compliance with Section III(A)(2) does not substantially defeat IOP No. 8's purpose. See Found. for Seacoast Health v. Hosp. Corp. of Am., 165 N.H. 168, 182 (2013) (finding that defendant's breach of contract was not material because the breach "did not defeat [the contract's] essential purpose.").
To the extent Consolidated argues that the Court's materiality analysis conflicts with the JUA's requirement that the parties reach mutually agreeable arrangements for vegetation management, the Court is not convinced. (Doc. 162 ¶ 20.) As the Court explained above, IOP No. 8 accomplishes its goal of setting forth mutually agreeable standards even without the enforceability of Section III(A)(2). As NHEC points out, IOP No. 8 is the mutually agreeable agreement that the JUA contemplates, as IOP No. 8 explicitly defines the roles and responsibilities of both NHEC and Consolidated as it relates to maintenance re-clearing. Thus, absent a steadfast refusal to collaborate, Section III(A)(2) is not vital to the existence of either IOP No. 8 or the JUA because even without collaboration, IOP No. 8 still sets forth mutually agreeable standards for vegetation management and maintenance re-clearing. See Found. for Seacoast Health, 165 N.H. at 182.
Lastly, Consolidated argues that even under the Court's materiality analysis, the Court overlooked points of fact in finding that it was undisputed that NHEC never refused Consolidated's request to collaborate. (Doc. 162 ¶ 22.) First, Consolidated points to an e-mail that its employee, Michael Shultz, sent to one of NHEC's employees discussing how Consolidated felt that the JUA was outdated and seeking to amend how much money NHEC would bill Consolidated going forward. (McHugh Aff. (Doc. 116) Ex. 14.) Consolidated also points to an affidavit from NHEC employee Kristen Taylor to demonstrate that NHEC continued to invoice Consolidated for more than $900,000 for trimming services, in contrast to what Consolidated proposed. (K. Taylor Aff. (Doc. 95) ¶ 7.) Additionally, Consolidated also relies on the affidavit of its Senior Director of Cost Management, Robert Callahan, to illustrate how at a meeting with NHEC, NHEC refused to collaborate in establishing mutually agreeable budgets and plans for maintenance re-clearing activities. (Doc. 162 ¶ 22.) The Court will address each of these documents in turn.
As to the Schultz proposal and Taylor affidavit, the Court finds that these documents do not create a dispute of fact over whether NHEC's purported non-compliance with IOP No. 8 Section III(A)(2) was material. To reiterate, NHEC's breach would only be material if it explicitly refused Consolidated's request to collaboratively develop mutually agreeable vegetation management standards. These two documents strike the Court merely as Consolidated's attempts to re-negotiate terms of the JUA that it found unfavorable. For example, Schultz informs NHEC's Vice President of Operations and Engineering, James Bakas, that the "current JUA is [not] working well." (Doc. 116, Ex. 14 at 132.) Schultz indicated that Consolidated would "look forward to a constructive discussion with [NHEC]." Id. Schultz attached a proposed term sheet that included a proposal whereby Consolidated would pay $1.3 million for tree trimming in 2019 and thereafter would pay $900,000 per year. (Id. at 135.) The mere fact that NHEC's invoices did not reflect that it accepted Consolidated's proposal does not show that NHEC refused to collaborate. Essentially, Consolidated is now arguing that because NHEC did not accept its proposed costs going forward, it failed to collaborate in good faith. In fact, what Consolidated is suggesting-that NHEC must have accepted Consolidated's proposals-is not indicative of collaboration either. Without more evidence, merely showing that NHEC did not accept Consolidated's proposal does not necessarily mean that NHEC refused to collaborate. Therefore, Schultz's letter and Taylor's affidavit do not raise a genuine issue of material fact as to whether NHEC's purported breach of IOP No. 8 Section III(A)(2) was material.
The Court recognizes that NHEC disputes Consolidated's version of events. For purposes of this analysis, even if Consolidated's allegations are accurate, Consolidated still fails to raise a genuine dispute of material fact to defeat NHEC's position as a matter of law.
The Court now turns to Callahan's affidavit. Although it is a closer call, the Court finds that the affidavit fails to raise a material dispute of fact. Callahan described a meeting he had in 2022 with NHEC's employees Beth Stewart, John Geronaitis, and Josh Mazzei that had the goal to "collaboratively develop a maintenance re-clearing plan and budget with NHEC that complies with the requirements of IOP 8." (Doc. 114 ¶ 6.) According to Callahan, the meeting did not accomplish that goal because NHEC was only willing to change its project list and otherwise refused to scale back work or to consider altering its payment schedule. (Id. ¶ 9.) Callahan also noted that despite the parties not reaching an agreement on a maintenance re-clearing plan, NHEC continued to bill Consolidated for its services. (Id. ¶ 14.) In a July 2023 email, Callahan raised these concerns with Geronaitis and accused NHEC of denying Consolidated "its right to collaborate on the development of a joint plan and joint budget." (Id. Ex. B.)
Consolidated points to the above affidavit and email to show that any collaboration that NHEC engaged in was done in bad faith. Once again, these arguments strike the Court more as sophisticated parties negotiating with one another rather than NHEC's steadfast refusal to collaborate. According to Callahan, NHEC representatives met with Consolidated's representatives and indicated a willingness to change the project list. To reiterate, only a complete and steadfast refusal to collaborate in the first place substantially defeats the purposes behind both IOP No. 8 and the JUA. Callahan's affidavit and email fall short of this standard. The documents demonstrate that Consolidated remained unhappy with how NHEC prepares and bills for its services. However, contrary to Consolidated's arguments, these documents do not demonstrate that NHEC acted completely unilaterally. Even without NHEC specifically incorporating Consolidated's suggestions, it is clear that NHEC still engaged with Consolidated in pursuing joint vegetation management standards. As stated above, collaboration does not necessarily mean that Consolidated's preferences must prevail over NHEC's. Callahan's affidavit and email do not describe behavior that wholesale substantially defeats the purpose behind IOP No. 8 and the JUA. Therefore, these documents fail to show a dispute in material fact sufficient to defeat summary judgment. See Brown v. Concord Grp. Ins. Co., 163 N.H. 522, 527 (2012). Accordingly, Consolidated has failed to any point of law or fact that the Court overlooked and misapprehended. Broom, 152 N.H. at 752.
Conclusion
For the foregoing reasons, NHEC's motion is GRANTED in part and DENIED in part and Consolidated's motion is DENIED.
SO ORDERED.