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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Carroll No. 2011-323 KILNWOOD ON KANASATKA CONDOMINIUM UNIT ASSOCIATION, INC. v. PERRY SMITH & a. Argued: May 3, 2012 Opinion Issued: June 29, 2012 Patrick Wood Law Office, PLLC, of Laconia (Patrick H. Wood on the brief and orally), for the petitioner. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Steven J. Dutton and Scott H. Harris on the brief, and Mr. Dutton orally), for the respondents. LYNN, J. The petitioner, Kilnwood on Kanasatka Condominium Unit Association, Inc. (Association), appeals the decision of the Superior Court (Houran, J.) dismissing its petition to change the ownership form of twentynine units in a residential subdivision from condominiums to single-family fee simple lots. We affirm.

I The record reflects the following facts. The Association was created by The Thomson Company, Inc. (Developer), under a document titled "Declaration of Condominium" (Declaration), in accordance with The Unit Ownership of Real Property Act, RSA ch. 479-A (2001 & Supp. 2011). In 2010, the Association members considered reforming the Declaration to convert it from a condominium association to single-family homes, but they could not reach the unanimous vote required by the Declaration to do so. Unable to reach an accommodation with the minority members, Perry Smith, Andy and Jill Belliveau, and Rob and Candy Baker, the Association petitioned the superior court to reform the Declaration. The minority members, who are the respondents in this case, cross-petitioned the court to declare that Kilnwood remain a condominium association, and moved to dismiss. The trial court granted the motion to dismiss on the ground that the record did not support reformation based upon mutual mistake. The Association appeals. II The Association argues that the Declaration should be reformed because it was not intended to create a condominium, but rather a subdivision of single-family residential lots. In reviewing the trial court's grant of a motion to dismiss, our standard of review is whether the allegations in the petitioner's pleadings are reasonably susceptible of a construction that would permit recovery. In the Matter of Lemieux & Lemieux, 157 N.H. 370, 372 (2008). We assume the petitioner's pleadings to be true and construe all reasonable inferences in the light most favorable to it. Id. at 372-73. We then engage in a threshold inquiry that tests the facts in the petition against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. Id. at 373. The petitioner's burden of proof in a reformation action is a heavy one. Sommers v. Sommers, 143 N.H. 686, 690 (1999). Reformation may be proper when an instrument fails to express the intention the parties to its making had on the grounds of either fraud or a mutual mistake of fact. A.J. Cameron Sod Farms v. Continental Ins. Co., 142 N.H. 275, 282-83 (1997). "Courts are not in the business of rewriting contracts to bail out parties who have failed to prudently construct their business transactions." 28 Williston on Contracts

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