APPELLEE TRUSTEES OF DARTMOUTH COLLEGE ANSWER AND OBJECTION TO MOTION FOR RECONSIDERATION

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT No B.V. BROOKS, KENNETH F. CLARK JR., MARISA DEANGELIS KAI\E, JOHN H. PLT]NKETT, DOUGLAS R. RAICHLE, ROBERT G. REED III, AND JOHN STEEL III, Appellants v. TRUSTEES OF DARTMOUTII COLLEGE, Appellee APPELLEE TRUSTEES OF DARTMOUTH COLLEGE ANSWER AND OBJECTION TO MOTION FOR RECONSIDERATION Bruce W. Felmly NH Bar No. 787 Mclnxp, GnAr, Reursnso t & MnorgroN City Hall Plaza 900 Elm Street P.O. Box 326 Manchester, New Hampshire (603) 62s-6464 Richard C. Pepperman, II SurrrveN & CnouwnI-l LLP 125 Broad Street New York, New York (21,2) s Attorneys þr Appellee Trustees of Dartmouth College Ãpril25,2011

2 Trustees of Dartmouth College hereby sets forth its Answer and Objection to Appellants' Motion for Reconsideration. Plaintiffs seek reconsideration of the Court's April 72, 2077 decision on the ground that the Court erroneously affirmed Judge Vaughan's dismissal of their promissory estoppel claim. First, they argue that the Court incorrectly held that this claim is barred on res judicata grounds, and second, they assert that the Court erred in declining to consider their undeveloped argument that the purported "vesting" of their promissory estoppel claim somehow affects that analysis. Plaintiffs have not shown that the Court "has overlooked or misapprehended" anypoint of fact or law, S. Ct. Ptule22, and both arguments are without merit. I. The Court Correctþ Held That Res JudícøtaBtrs Plaintiffs' Promissory Estoppel Claim. The Court correctly found that all three elements of res judícata are satisfied in this case. In their motion for reconsideration, plaintiffs challenge only the Court's holding that they were represented by the Association in the prior lawsuit for purposes of their promissory estoppel claim. (Motion at 3-8.) First, plaintiffs contend that while the Court held that the Association executive committee had "representational authority to deal with its members' contract claims," the Court "gave no reasons of its own as to how or why the fres judicata] doctrine applied to bar fplaintiffs' promissory estoppel] claims." (Motion at 3.) As Judge Vaughn correctly recognized in this case, "[i]f a promise was made, it was made to the Association andlor its membership as a collective whole," not specifically to any of the plaintiffs in this action. (AC-12.) The Court therefore correctly applied its detailed four-page analysis of the "same parties" element of res judicata to plaintiffs' "promissory estoppel and breach of express contract" claims. (Slip op. at 4-8.) As the Court correctly held, under the Restatement (Second) of Judgments $ 41,"a person is represented by a party who is 'fi]nvested by the person with authority to represent him in an action,"' and in this case, plaintiffs were represented by the Association "because of the

3 relationship between the Association and its members." (Slip op. at 5-6 (quoting Restatement $ 41).) The Court acknowledged plaintiffs' contention that "they never personally gave the Association's executive committee the authority to dismiss its lawsuit against the Trustees," but held that "this is not required." (Slip op. at 6.) lnstead, as the Court concluded, "[t]he Association's executive committee had the authority to act as it did because it is the managerial arm of the Association and, as such, had 'the requisite authority, and generally the exclusive authority, to participate as a party' on behalf of the Association's members." (Slip op. at 6 (quoting Restatement $ 41 cmt a).) In these circumstances, "'[a] person represented by a party to an action is bound by the judgment."' (Slip op. at 6 (quoting Restatement $ 41(2).) There is thus no basis for plaintiffs' claim that the Court failed adequately to explain its grounds for affirming Judge Vaughan's dismissal of their claims on res judicata grounds. Second, plaintiffs assert that the Court "noted that the representational authority of the managing officers of an unincorporated association extends only to 'association property and contracts."' (Motion at 6 (quoting Slip op. at 6).) That assertion is not accurate. In the cited portion of the opinion, the Court quoted a comment to the Restatement stating that "'[o]ne... relationship"' thal may give rise to representation "'is that of managing officers of an unincorporated association with regard to association property and contracts."' (Slip op. at 6 (quoting Restatement $ 41 cmt. b).) The Court's broader holding that the Association "had 'the requisite authority, and generally the exclusive authority, to participate as a party' on behalf of the Association's members" on the facts of this case was not so limited. (Slip op. at 6.) As the Restatement explains, managing officers have "representational status in litigation concerning the interests for which they are responsible." Restatement $ 41 cmt. b. For instance, a tribal council's "action to determine the boundary line between the lands of that tribe and another" is binding on a member of the tribe "with respect to ownership and occupancy rights he may have -2-

4 in the land as amember of the tribe," Restatement $ 41, cmt. b, illus.2, thus barring a future action based on those "rights," no matter what specific claim is asserted. (See Appellees' Brief at ) Likewise here, the Association's action to determine rights created by alleged promises made by the College in 1891 to the Association and its collective membership was binding on the Association's members with respect to any rights, no matter how denominated, that supposedly arose from those alleged promises. In New Hampshire, the doctrine of res judicata bars relitigation of any "cause of action" arising from a particular "factual transaction." Brzica v. Trs. of Dartmouth Coll., 147 N.H. 443, 455 (2002). "'[C]ause of action' has a broad transaction definition in the res judicata context," id. at 455, referring to "all theories on which relief could be claimed on the basis of the factual transaction in question." Eastern Marine Constr. Corp. v. First S. Leasing,129 N.H. 270,275 (1937) (res judicata applies even if plaintiff will "present evidence or grounds or theories of the case not presented in the first action"). Plaintiffs cannot evade this broad transactional bar by theorizing that the same promises allegedly made in 1891 on which the Association lawsuit was based also gave rise to a personal claim for promissory estoppel. This rule applies with particular force here given that the Association asserted the exact same promissory estoppel claim based on the exact same promises in the prior action. Any other rule would permit an end run around the preclusive effect of association lawsuits required by Restatement $ 41; members could simply claim that they as individuals relied on promises made to the association and its membership, whether previously litigated by the association or not. Thírd, plaintiffs assert that the Association's constitution could confer no representational authority on the executive committee to dispose of their promissory estoppel claim because "promissory estoppel claims are not claims fplaintiffs] have by virtue of their membership in the -J-

5 Association." (Motion at 7.) This argument directly contradicts Judge Vaughan's unchallenged ruling that any alleged promise "was made to the Association andlor its membership as a collective whole" (AC-12), not to plaintiffs individually. In sum, the Court correctly affirmed Judge Vaughn's ruling thal res judicata bars plaintiffs' promissory estoppel claim based on the same alleged 1891 promises that purportedly give rise to their contract claims. That claim was dismissed with prejudice by the Association in the prior action brought in a representative capacity on behalf of the Association's members. II. The Court Correctly Declined to Address Plaintiffs' Vague Argument About Vesting, Which in Any Event Lacks Merit. Plaintiffs also assert that the Court improperly declined to consider their argument that their promissory estoppel claim "had 'vested' and could not be divested by the parties' stipulation in the Prior Lawsuit." (Motion at 3.) The Court correctly found that this argument was "insufficiently developed for appellate review" (Slip op. at 7); the argument also is without merit. Where a party fails "to provide adequately developed legal argument and legal support" for its theories, this Court will not consider them. Sabinson v. Trs. of Dartmouth ColL,160 N.H. 452,459 (2010) (intemal quotation marks omitted). Here, plaintiffs argued in a single sentence, without any citation, that "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." (Appellants' Brief at32.) Plaintiffs now argue that they developed this argument in another section of their brief (Motion at 7 n.4), but that section argued instead that their alleged rights as third-party beneficiaries had vested (Appellants' Brief at 30-31). More fundamentally, plaintiffs do not explain why, even assuming some right had "vested" as of a certain date, this would affect the Association's authority to represent plaintiffs -4-

6 with respect to that right. It would not. Plaintiffs' alleged right to bring a direct breach of contract claim had presumably also "vested" by the time the Association entered into a stþulation to dismiss the lawsuit, but plaintiffs do not challenge the Court's holding that res judicata bars relitigation of that claim. Because, as the Court correctly held, the Association properly acted as its members' representative concerning their interests in the alleged promises made by the College in 1891, the Association had the authority finallyto end litigation by alumni about any rights arising from it. Plaintifß have not shown that the Court "has overlooked or misapprehended" any point of fact or law, S. Ct. Rule 22, and the Court should deny this Motion. Dated: Apnl25,20ll Respectfully submitted, Richard C. Pepperman, II SurrrveN & CnovrwELL LLP 125 Broad Street New York, New York (2t2) ss Bruce W. Felmly, Bar N.787 Mclanve, GRLr, R-e City HallPlaza,900 Elm treet Manchester, New H re (603) 62s-6464 & Mnlr ron Attorneys for Appellee Trustees of Dartmouth College -5-

7 CERTIFICATE OF SERVICE I hereby certiff that a copy of the foregoing and any attachments were served by hand and electronic mail on Eugene M. Van toan III, Wadleigþ, Star & Peters, PLLC, 95 Market Street, Manchester, NH 03101, on April 25,2011. Bruce W. Felml Bar