Sears Roebuck & Company v. W/S Lebanon, LLC et al
///ORDER granting 56 Motion for Summary Judgment filed by K.G.I. Properties, LLC; granting 57 Motion for Summary Judgment by Keypoint Partners, LLC. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sears Roebuck & Company and
Civil No. 14-cv-422-JL
Opinion No. 2017 DNH 185
W/S Lebanon LLC, W/S Development
Associates LLC, S.R. Weiner
& Associates, C/O Robert Currey
Associates, now known as WS Asset
Management Inc., Windalier
West Lebanon, LLC, K.G.I.
Properties, LLC and Keypoint
This action, arising out of flood damage to commercial
property following a hurricane, implicates a party’s liability
for breach of a contract to which it is not party.
Sears Roebuck and Company and Kmart Corporation both suffered
property damage at stores located in West Lebanon, New
Hampshire, as a result of flooding brought on by Hurricane Irene
They brought separate actions against their respective
landlords (W/S Lebanon LLC and Windalier West Lebanon, LLC) and
property managers (W/S Development Associates, LLC, WS Asset
Management, K.G.I. Properties, LLC, and Keypoint Partners, LLC),
which were later consolidated for all purposes.1
See Order of Consolidation (doc. no. 23).
The plaintiffs bring various breach of contract,
negligence, promissory estoppel, and accounting claims against
Specifically, Kmart asserts claims of
negligence and breach of contract against its lessor, Windalier,
and Windalier’s property managers, K.G.I. and Keypoint.
asserts claims of negligence, breach of contract, promissory
estoppel, and a claim for accounting against its lessor, W/S
Lebanon, and W/S Lebanon’s property managers, W/S Development
and WS Asset Management (the “WS defendants”).
All defendants moved for summary judgment on all claims
Both plaintiffs also moved for summary judgment,
albeit only on their breach of contract claims.4
denied the plaintiffs’ motion for partial summary judgment
entirely, and granted Windalier’s and the WS defendants’ motion
for summary judgment in part and denied it in part, for the
reasons stated on the record at the September 1, 2017 oral
This order resolves K.G.I.’s and Keypoint’s motions for
Because there is no privity of contract
between Kmart and its property managers and because Kmart has
Their First Amended Consolidated Complaint (doc. no. 27) is
Document nos. 56, 57, and 59.
Document no. 58.
not identified a legal duty owed it by its property managers,
the court grants K.G.I.’s and Keypoint’s motions for summary
Applicable legal standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
The moving party must “assert the absence of a
genuine issue of material fact and then support that assertion
by affidavits, admissions, or other materials of evidentiary
Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st
“A genuine issue is one that could be resolved in
favor of either party, and a material fact is one that has the
potential of affecting the outcome of the case.”
McHugh, 622 F.3d 17, 26 (1st Cir. 2010) (internal quotation
Once the movant has made the requisite showing, “the burden
shifts to the summary judgment target to demonstrate that a
trialworthy issue exists.”
Mulvihill, 335 F.3d at 19.
nonmoving party “‘may not rest upon the mere allegations or
denials of [the] pleading, but must set forth specific facts
showing that there is a genuine issue’ of material fact as to
each issue upon which he or she would bear the ultimate burden
of proof at trial.”
Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52–53 (1st Cir. 2000) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
As it is obligated to do in the summary judgment context,
the court “rehearse[s] the facts in the light most favorable to
the nonmoving party (here, the plaintiff) consistent with record
support,” and gives them “the benefit of all reasonable
inferences that those facts will bear.”
Noviello v. City of
Boston, 398 F.3d 76, 82-83 (1st Cir. 2005) (internal citation
The following background takes this approach, drawing
on the parties’ recitations of undisputed facts.
Kmart has leased and occupied commercial property in a
shopping plaza (the “Kmart Plaza”) in West Lebanon, New
Hampshire, since May 1974.
The Kmart Plaza sits on the east
side of the Connecticut River and south of the Mascoma River.
On August 29, 2011, Hurricane Irene caused much of the
Connecticut River and its tributaries to flood.
caused water damage to the Kmart Plaza, including the building
occupied by Kmart.
The contents of Kmart’s building were also
At the time of the event, Kmart leased its building from
From July 2003 until a month before the event,
K.G.I. managed the property pursuant to an agreement between it
That agreement terminated, however, on July 31,
Windalier then contracted with Keypoint to manage the
property, and Keypoint was the property manager when Hurricane
As discussed supra, Kmart has brought claims for breach of
its lease against its landlord, Windalier, and against
Windalier’s property managers, K.G.I. and Keypoint.
also brought negligence claims against all three of these
The court grants K.G.I.’s and Keypoint’s motions for
summary judgment on Kmart’s breach of contract claims against
them because they were not parties to the lease and, further,
Kmart has not pleaded breach of, nor offered any evidence
suggesting it has standing as a third-party beneficiary to sue
under, the property managers’ contracts with Windalier.
these defendants owe Kmart no common-law duty under New
Hampshire law, the court also grants the defendants’ motions for
summary judgment on to Kmart’s negligence claims.
Kmart’s contract claim against K.G.I. and Keypoint
To succeed on a breach of contract claim under New
Hampshire law, the plaintiff must show:
“(1) that a valid,
binding contract existed between the parties, and (2) that [the
defendant] breached the terms of the contract.”
Corp. v. Hansen, 870 F. Supp. 2d 296, 311 (D.N.H. 2012) (citing
Lassonde v. Stanton, 157 N.H. 582, 588 (2008); Bronstein v. GZA
GeoEnvironmental, Inc., 140 N.H. 253, 255 (1995)).
does not implicate the contract’s existence or validity, but
only whether a breach of existing, valid contracts occurred.
breach of contract occurs when there is a ‘[f]ailure without
legal excuse, to perform any promise which forms the whole or
part of a contract.’”
Bronstein, 140 N.H. at 255 (quoting
Black’ Law Dictionary 188 (6th ed. 1990)).
The parties’ arguments touch on three contracts:
agreement between Kmart and Windalier,5 the property management
agreement between Windalier and K.G.I.,6 and the property
management agreement between Windalier and Keypoint.7
bases its contract claim against K.G.I. and Keypoint on a lease
to which neither of the property managers was party:
Sections of that lease, Kmart alleged,
obligated Windalier, and its agents KGI and Keypoint,
to maintain, replace and repair the roof, outer walls
and structural portions of the building necessary to
maintain the building in a “safe, dry and tenantable
condition” and in “good order and repair”[;] . . . to
Exhibit C (doc. no. 56-5).
Exhibit O (doc. no. 56-17).
Exhibit N (doc. no. 56-16).
maintain, replace and repair the underground utility
installations, which include storm sewer systems[;
and] . . . to properly service the building's storm
The damage that Kmart sustained as a result of the flooding
caused by Hurricane Irene, Kmart further alleged, was
“proximately caused by Windalier, K.G.I. and Keypoint’s breach
of their duties” under the contract between Windalier and Kmart.9
It is undisputed that neither K.G.I. nor Keypoint is party to
Because a valid, binding contract does not exist
between Kmart, on the one hand, and K.G.I. or Keypoint, on the
other, Kmart’s breach of contract claim against K.G.I. and
Keypoint fails as a matter of law.10
Pstragowski v. Metro. Life
Ins. Co., 553 F.2d 1, 4–5 (1st Cir. 1977) (non-party to a
contract has no remedy for breach).
In an attempt to salvage its contract-based claim against
the two property managers, Kmart argues that it was a thirdparty beneficiary of the property management agreements between
K.G.I./Keypoint and Windalier.
These agreements obligated the
property managers to “continually operate and manage the
Compl. (doc. no. 27) ¶¶ 115-117.
Id. ¶ 118.
By not taking up this argument in its opposition, Kmart
appears to concede that it cannot recover from K.G.I. and
Keypoint under the Kmart-Windalier lease. See Plaintiffs’
Opposition Mem. (doc. no. 74-1) at 31-33.
Property consistent with good, sound, and prudent management
practices and consistent with standards of comparable properties
in the same area . . . .”11
Kmart cannot recover under this
theory for two reasons.
First, as discussed supra, Kmart has premised its claim on
a breach of the Kmart-Windalier agreement.12
Nowhere in the
Complaint does Kmart raise or reference the property management
Kmart has not sought to amend its Complaint to
reflect this new theory of the case, and now -- with trial
looming on the horizon -- is too late to do so.
See Steir v.
Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004) (“[T]he
longer a plaintiff delays, the more likely the motion to amend
will be denied, as protracted delay, with its attendant burdens
on the opponent and the court, is itself a sufficient reason for
the court to withhold permission to amend.”); Cruz v. BristolMyers Squibb Co., PR, 699 F.3d 563, 570 (1st Cir. 2012)
(affirming denial of motion to amend brought nine months after
scheduling order deadline).
Second, and more to the point, the third-party beneficiary
exception to the general rule “that a non-party to a contract
Exhibit N (doc. no. 56-16) ¶ 2.6; Exhibit O. (doc. no. 56-17)
See Compl. (doc. no. 27) ¶¶ 115-118.
has no remedy for breach of contract,” Brooks v. Trustees of
Dartmouth Coll., 161 N.H. 685, 697 (2011) does not apply under
A third-party beneficiary relationship exists if:
(1) the contract calls for a performance by the
promisor, which will satisfy some obligation owed by
the promisee to the third party; or (2) 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
Id. (citing Tamposi Associates v. Star Mkt. Co., 119 N.H. 630,
“[I]t is not enough that the contract manifests
the parties’intention to confer upon a third party the benefit
of the promised performance.
Rather, the contract must show
that the parties considered the third party’ legal status and
intended to confer upon him a right to sue the promisor.”
at 698 (internal quotation and citation omitted).
manifestation of that intent to confer a right to sue, “the
third party is only an incidental beneficiary, having no
Id. (quotation omitted).
Seeking to establish its third-party beneficiary standing,
Kmart cites only one provision of the property management
the obligations on K.G.I. and Keypoint to
“continually operate and manage the Property consistent with
good, sound, and prudent management practices and consistent
with standards of comparable properties in the same area.”13
Such general language, in and of itself, does not demonstrate
that the parties to the property management agreements -Windalier, K.G.I., and Keypoint -- intended to confer a direct
benefit on Kmart or to grant Kmart a right to sue to enforce the
Nor can it do so when read in the context of other
agreement terms clearly evincing the parties’ intention that the
property managers manage the property for the benefit of
Windalier -- the landlord, not the tenant.
For example, the
agreements provide that, except as provided within the
agreements themselves, “everything done by [the property
manager] under this Agreement shall be done on [Windalier’s]
behalf, and all obligations or expenses incurred pursuant to
this Agreement shall be for the account of, and at the expense
Similarly, the agreements required the property
managers to “cause to be maintained, naming [Windalier] as
See Plaintiffs’ Opposition Mem. (doc. no. 74-1) at 31-32
(quoting Exhibit N (doc. no. 56-16) ¶ 2.6; Exhibit O. (doc.
no. 56-17) ¶ 2.6).
Even if it did so, the court is skeptical that Kmart could
recover under this theory against K.G.I., in light of the
undisputed fact that the Windalier-K.G.I. property management
agreement was no longer in effect at the time of the event
giving rise to Kmart’s claims. The court need not reach that
Exhibit N ¶ 8.2; Exhibit O ¶ 8.2.
additional insured, a Comprehensive General Liability insurance
policy, covering its acts or omissions,” within stated limits.16
Furthermore, to the extent that the agreements address the
tenants at all, those provisions give no indication that the
tenants were considered beneficiaries of the agreement.
contrary, those provisions address the property manager’s
authority to take action against the tenants,17 to inform them of
all rules and regulations, and to enforce the tenants’
compliance with those rules and regulations.18
Because Kmart failed to plead breach of the contracts
between the property managers and Windalier, and because, even
had it done so, no provision in the contracts indicate any
intention by the parties to recognize Kmart as a third-party
beneficiary, the court dismisses Kmart’s breach of contract
claim (count 11) as against K.G.I. and Keypoint.19
Kmart’s negligence claims against K.G.I. and Keypoint
Counts 9 and 10)
To succeed on a claim for negligence, the plaintiff must
“establish that the defendant owed a duty to the plaintiff,
Exhibit N ¶ 3.12; Exhibit O ¶ 3.12.
See Exhibit N ¶ 3.5; Exhibit O ¶ 3.5.
Exhibit N ¶ 3.2; Exhibit O ¶ 3.2.
This count remains in play, however, as against Windalier.
breached that duty, and that the breach proximately caused the
Estate of Joshua T. v. State, 150 N.H. 405,
407 (2003) (quotations and citations omitted).
Keypoint argue that Kmart’s claim fails as a matter of law
because they owed no common law duty of care to Kmart.20
“Whether a duty exists in a particular case is a question of
law” in New Hampshire.
Carignan v. New Hampshire Int'l
Speedway, Inc., 151 N.H. 409, 412 (2004).
“Absent the existence
of a duty, a defendant cannot be liable for negligence.”
(citing Williams v. O’Brien, 140 N.H. 595, 599 (1995)).
“A duty generally arises out of a relationship between the
Sisson v. Jankowski, 148 N.H. 503, 506 (2002).
existence and extent of that duty depends upon the nature of”
the parties’ relationship.
Sintros v. Hamon, 148 N.H. 478, 480
Here, the relationship among Kmart, Windalier, K.G.I.,
and Keypoint is generally contractual in nature.
reliance on its lease with Windalier its basis for the alleged
duty emphasizes this point.
Specifically, Kmart alleges that
all three defendants “owed Kmart a duty to operate, manage,
maintain, inspect, control, repair and replace the Kmart
Building, underground utility installations, storm sewers,
K.G.I. Mem. (doc. no. 56-1) at 26-29; Keypoint Mem. (doc.
no. 57-1) at 23-26.
Landlord Common Areas, and parking areas with reasonable care
and to otherwise ensure that the Kmart Building was not subject
to damages that could be avoided with the exercise of reasonable
Kmart has drawn this duty from its lease with
Windalier, which it obligates Windalier to “maintain, repair,
and replace” at least certain portions of the leased property
itself, including “underground utility installations”; to
“maintain all driveways, sidewalks, street and parking areas
free of all settling, clear of standing water, and in a safe,
slightly and serviceable condition”; and to ensure that the
leased property is “property serviced with . . . sewer and other
utilities . . . .”22
When a contract defines the relationship, “ordinarily the
scope of the duty is limited to those in privity of contract
with one another.”
Sisson, 148 N.H. at 505.
Here, no such
privity exists between Kmart, on the one hand, and K.G.I. and
Keypoint, on the other.
This suggests that K.G.I. and Keypoint
cannot be held liable in tort for breach of a duty defined by a
contract to which they are not parties.
Attempting to overcome this, Kmart invokes the New
Hampshire Supreme Court’s conclusion, in Mbahaba v. Morgan, 163
Compl. (doc. no. 27) ¶¶ 97, 103, 109.
Exhibit C (doc. no. 56-5) ¶¶ 15, 17.
N.H. 561 (2012), that “a party without a direct contractual duty
who nonetheless possesses the knowledge and authority of a
landlord may be held liable for his own negligence.”
Mbahaba specifically addressed, and answered in the
affirmative, the question of whether a property manager could be
held liable by a tenant for negligence.
It does not, however,
appear to create a general duty, owed by a property manager to
the tenant of a commercial property, to prevent property damage
and economic loss.
Mbahaba concerns a property manager’s liability in
negligence when a tenant is injured in a residential apartment.
The New Hampshire Supreme Court highlights the personal injury
context of that liability, basing it on the landlord having
“demise[d] dangerous property.”
Id. at 566-67 (quoting Sargent
v. Ross, 113 N.H. 388, 391 (1973)).
Once he has done so, his
“is the ordinary case of liability for personal misfeasance,
which runs through all the relations of individuals to each
Id. at 567 (quoting Sargent, 113 N.H. at 391).
landlord’s “tort duty exists, independent of any contractual
obligation, because,” having leased property with a known
danger, “a reasonable person would exercise a certain degree of
care for the protection of a vulnerable tenant.”
There is no indication here that Windalier “demise[d]
dangerous property” to Kmart.
At oral argument, Kmart’s counsel
argued that the property’s “danger” was inherent in its
situation in a flood zone.
But nothing in Mbahaba suggests the
duty recognized therein contemplates that sort of “danger.”
the contrary, Mbahaba itself addressed the danger, known to the
property manager in that case, of peeling lead paint to the
young daughter of a tenant.
In Sargent, on which Mbahaba
relies, the New Hampshire Supreme Court abolished “the doctrine
of landlord nonliability in tort,” and concluded that a landlord
may be so liable
for injuries resulting from defective and dangerous
conditions in the premises if the injury is
attributable to (1) a hidden danger in the premises of
which the landlord but not the tenant is aware, (2)
premises leased for public use, (3) premises retained
under the landlord’s control, such as common
stairways, or (4) premises negligently repaired by the
Sargent, 113 N.H. at 392.
Kmart’s location in a flood zone of
which both landlord and tenant appear to have been equally
aware, falls under none of these categories.
And the damages
that Kmart claims here -- compensation for losses relating to
damage to the property itself and to Kmart’s own property -- are
not the sort of “injury” contemplated by Mbahaba and Sargent.23
As Keypoint’s counsel observed at oral argument, Mbahaba
focuses on the imbalance of knowledge between the landlord and a
“vulnerable tenant,” 163 N.H. at 567, which renders it less
applicable to the relationship between two sophisticated parties
to a commercial lease.
Kmart has grounded the duty it claims all three defendants
owe it squarely in the contract between it and its lessor,
Windalier, and to which the property managers are not parties.
It has not identified any common-law duty owed it by the
Accordingly, the court grants their motions
to dismiss Kmart’s negligence claims against them.
For the reasons discussed above, the court GRANTS K.G.I.’s
and Keypoint’s motions for summary judgment.25
Joseph N. Laplante
United States District Judge
September 6, 2017
Jamie N. Hage, Esq.
Richard J. Sprock, Esq.
Robert P. Louttit, Esq.
Kathleen A. Davidson, Esq.
Mark W. Shaughnessy, Esq.
Patrick Martin Audley, Esq.
Quinn Emmet Kelley, Esq.
The same may well hold true for Windalier and the WS
defendants, and may entitle them -- at some juncture -- to
judgment as a matter of law on the negligence claims against
them. As the court noted during oral argument, however, they
did not move for summary judgment on these grounds, invoking
only an “act of God” defense and the doctrine of avoidable
consequences. See Defendants’ Mem. (doc. no. 59-1) at 13-19.
Document nos. 56 and 57.
Michael P. Johnson, Esq.
Douglas N. Steere, Esq.
Clara E. Lyons, Esq.
David F. Hassett, Esq.
Matthew G. Lindberg, Esq.
Scott T. Ober, Esq.
John M. Dealy, Esq.
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