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Bar News - January 3, 2003 NH Supreme Court Opinion Summaries EASEMENT TRANSFER Cricklewood on the Bellamy Condominium Association v. Cricklewood on the Bellamy Turst & a. DUGGAN, J. The plaintiff, Cricklewood on the Bellamy Condominium Association (association) appealed an order of the Superior Court (Galway, J.) granting summary judgment in favor of defendant Bellamy River Village LLC (BRV), and holding that defendant Cricklewood on the Bellamy Trust's (CBT) motion for summary judgment was moot. The Supreme Court affirmed. A previous case, Hawthorne Trust v. Maine Savings Bank, 136 N.H. 533 (1992), outlined the history of the easements at issue in this case. In the present case, the association requested, among other things, a reformation of easements. The association asked the trial court to either invalidate easements held by BRV or to alter the association's financial benefits from the easements, since certain prior easements were extinguished. In the alternative, the association challenged a settlement between CBT and Hawthorne. The trial court granted summary judgment to BRV upholding its easements because: (1) the Supreme Court's decision in Hawthorne Trust held that the purchase and sale agreement created an easement interest that still existed; (2) CBT, as the servient tenement, properly transferred its financial interest in the easement to Cricklewood Trust; and (3) the plaintiffs had no standing to challenge the propriety of the settlement agreement. On appeal, the court first considered the trial court's conclusion that CBT, as the servient tenement, properly transferred easements for sewer, utility, and transportation to Cricklewood Trust. As to the association's argument that CBT's transfer of the easements to Cricklewood Trust was an invalid transfer because the interests at issue could only be held by the dominant tenement, Hawthorne Trust, and were incapable of existing apart from the dominant tenement, the court stated that the record revealed that CBT did not intend to sever the easement from the land, but rather intended to convey similar easements in favor of Cricklewood Trust. The court determined that this was valid because CBT, the owner of the servient tenement, had the right to convey easements on its property, provided there was no interference with the dominant tenement's use. The association's second argument was that the Cricklewood Trust easements were invalid because they conveyed more than was intended in the purchase and sale agreement. The court disagreed with this argument, stating that CBT had a right to grant easements on its property to a third party. The court reasoned that the association had notice that the property was burdened by easements. Finally, the association argued that CBT should have been judicially estopped from arguing that the post-mortgage easements were not extinguished in foreclosure. The court declined to consider this issue, because it was not raised in the notice of appeal. The court ruled that the trial court properly granted summary judgment and denied reformation of the contract.
VICARIOUS LIABILITY - AGENCY RELATIONSHIP BROCK, J. The plaintiff sued in Superior Court (Arnold, J.) alleging that the defendant was vicariously liable for the negligent acts of its agent, or in the alternative, was directly liable for negligently supervising and training its agent. The jury returned a special verdict for the plaintiff. The defendant appealed alleging insufficient evidence to establish an agency relationship between the defendant and the plaintiff. The supreme court affirmed. The plaintiff, a former corrections officer, suffered personal injuries while receiving baton training from a certified instructor of the defendant. Corrections officers employed by the Cheshire County House of Corrections (jail) were authorized to carry and use only a baton product exclusively manufactured by Monadnock Lifetime Products, Inc. (MLP). The defendant is a nonprofit corporation affiliated with MLP, with the mission to facilitate the training of law enforcement and correctional officers in the use of that baton. MLP's catalog and website suggest that the training programs are associated with the baton, Monadnock is listed as the "training division" of MLP, Monadnock's website advertises a calendar of training, and certified instructors are authorized to sell a limited quantity of MLP products. Monadnock keeps lesson plans, allows only those in law enforcement to be trained, requires that instructors are recertified every four years, and requires that instructors adhere to their program. Even so, the instructors have to sign an agreement stating that they are not employees or agents of Monadnock.. The jail hired the plaintiff to be a correction's officer. During training for use of MLP's baton, the plaintiff fell, struck his head on a cement wall, and incurred severe head trauma. The plaintiff argued that the instructor negligently conducted the training program, and that the instructor was an agent of Monadnock. The plaintiff also alleged that Monadnock negligently supervised and trained the instructor. The jury was asked to render a special verdict to find whether agency had been established. The jury verdict favored that plaintiff on both issues. On appeal, Monadnock argued that the evidence was insufficient as a matter of law to prove the existence of an agency relationship. The court looked at three aspects of establishing an agency relationship: (1) authorization from the principal that the agent shall act for him or her; (2) the agent's consent to so act; and (3) the understanding that the principal is to exert some control over the agent's actions. The court reasoned that instructors were authorized by Monadnock to teach by their lesson plans. Further, the instructors were given the mandate to teach only law enforcement personnel. The instructors were authorized to certify students who met minimum standards. Instructors could be decertified by Monadnock, as well. Thus, the court found that the record supported a finding that the instructor had actual authority to train students exclusively with MLP products. The instructor consented to the arrangement, and therefore his actions were under Monadnock's control. The court held that the record supported a finding that an agency relationship existed pursuant to actual authority.
GUARDIANSHIP DUGGAN, J. The appellant, David Lanoue, Sr., appealed a Hillsborough County Probate Court (Cloutier, J.) order granting the respondent, Office of Public Guardian (OPG), the authority to permanently place his wife, Shirley Lanoue, in a residential facility. The supreme court affirmed. Shirley Lanoue, the appellant's wife, had serious brain injury from a stroke and cardiac arrest, was incapacitated, and required twenty-four hour care. The probate court appointed Mr. Lanoue as her guardian, but ten years later the court removed him as her guardian and appointed OPG as successor guardian. The probate court approved OPG's plan for Mrs. Lanoue's care in her home. After many conflicts between Mr. Lanoue and care providers, OPG requested the authority to permanently remove Mrs. Lanoue from her home to another facility that had twenty-four hour staff care. The appellant objected and asked the court to return his wife to their residence. The probate court denied his request and allowed OPG's request. On appeal, Mr. Lanoue argued that the probate court's exercise of discretion was unsustainable because it authorized the guardian to remove his wife from his marital residence absent specific findings justifying the deprivation of her right to reside with him. The court first considered whether the probate court was required to make specific findings of harm before authorizing Mrs. Lanoue's removal from her marital home. Pursuant to RSA chapter 464-A:25, I(a)(I) (Supp. 2001), the court found nothing that requires the probate court to make specific findings of harm in determining that a ward may be removed from her home. Thus, the court reasoned that so long as the decision was made with respect for the civil rights and personal freedoms of the ward, the probate court may uphold the guardian's decision. The court disagreed with the appellant's argument that because his wife was placed in a private institution and removed to her home, the probate court was required to make specific findings of harm. The court considered that OPG tried to work with Mrs. Lanoue in her marital home, but could not continue to do so because of difficulties with Mr. Lanoue. The court concluded that there was sufficient evidence to support the probate court's findings and to support its decision to remove Mrs. Lanoue from her home. As to the appellant's assertion that Mrs. Lanoue's right to remain in her marital residence should be reviewed under a standard of beyond a reasonable doubt or clear and convincing evidence, the court declined to review the claim on appeal because the issue was not argued below. As to the appellant's argument that his wife's removal from the marital home created a de facto legal separation and that the intrusion upon the marital relationship was beyond the scope of the probate court's authority, the court disagreed. The court opined that the mere removal of Mrs. Lanoue did not create a de facto legal separation, and noted that legal authority to support his contention was lacking.
SUMMARY JUDGMENT - ABSOLUTE IMMUNITY BROCK, C.J. The plaintiffs appealed from the Trial Court's (Nadeau, J.) dismissal of a claim against the defendant Town of Effingham (town), and grant of summary judgment to the defendant Andrea Hubbard. The supreme court reversed and remanded. Hubbard was the town clerk and tax collector. Because of her involvement with the sale of a town cemetery plot, Hubbard met with the town selectmen to explain the situation, and to relay that the husband of the purchaser of a plot said that a funeral home director had told the family that two town residents had approached the gravedigger and told him that the body might be buried in the wrong location. Hubbard explained that the caller and his family were very upset. Hubbard also stated that the defendants had "verbally abused and taunted" the Town's grave-digger. Hubbard stated that what the defendants had done was "absolutely disgraceful" and "distasteful." The plaintiffs sued the town alleging defamation and negligent and intentional infliction of emotional distress. The defendants claimed that Hubbard was absolutely immune from the suit. As to the plaintiffs' argument on appeal that the town was not absolutely immune from liability for the allegedly defamatory statements Hubbard made at the meeting of the board of selectmen, the court held that the trial court erred in granting the town's motion to dismiss on this ground. The court reasoned that the classification of "absolutely privileged communications" is narrow and must be reserved for the situations where the public has a vital interest to the extent that it mandates complete freedom of expression without any inquiry into the defendant's motives. In support of this holding, the court found that the both the board's and Hubbard's functions were administrative not legislative. Therefore, Hubbard's comments were not absolutely privileged, she was not absolutely immune from suit, and the trial court erred in dismissing the claim against the town due to absolute immunity. The court also rejected the town's alternative argument that even if Hubbard's statements were not absolutely privileged, the motion to dismiss should be granted because Hubbard acted outside the scope of her employment when she made the statements. Instead, the court stated that a reasonable factfinder could conclude that Hubbard was acting within the scope of her duties when she made the statements. As to the plaintiffs' contention that the trial court erred in granting summary judgment to Hubbard, the court concluded that the order rested on an erroneous legal conclusion that the allegedly defamatory statements were absolutely privileged. Because the court previously decided that the statements were not protected by absolute immunity, the court concluded that the trial court erred in granting Hubbard's motion for summary judgment.
ADOPTION DUGGAN, J. The prospective adoptive parents of Baby Girl P. appealed the decision of the Merrimack County Probate Court (Hampe, J.) dismissing their petition for adoption and returning the child to her biological father. The supreme court reversed. The baby girl was born in Phoenix, Arizona to unmarried parents. The birth certificate lacked the father's name. The birth mother signed an adoption consent when the baby was ten days old. Pursuant to Arizona law, she also signed an affidavit naming "Jamal L." as the natural father. See Ariz. Rev. Stat. Ann. § 8-106(F) (West Supp. 2001); RSA 170-B:9, II (b) (Supp. 2001). The birth mother stated that the baby was conceived in Arizona as a result of a one-night relationship and that she did not have identifying information for the natural father. The prospective adoptive parents, residents of New Hampshire, took custody of the child and filed a petition for adoption. When the notice of adoption was filed in an Arizona newspaper, Colton L. (also known as Jamal L.) responded and indicated an intent to claim paternity. A paternity test confirmed that he was the biological father, and he subsequently refused to consent to the adoption. The probate court applied New Hampshire law and found that the adoption could not go forward, thus ordering custody to be with Colton L. On appeal, the court first determined which State's law applies to the issue of consent. Since the natural mother expected the adoption would take place pursuant to New Hampshire law, and since the adoptive parents lived in New Hampshire and filed the petition here, the court applied New Hampshire's adoption statute, RSA 170-B to determine if Colton L. was entitled to notice and the right to consent to the adoption. Next, the court considered the statutory definition of legal father to find that Colton L. did not meet any of the statutory requirements to be the legal father. The court held that the determination of Colton L.'s paternity in this case was not the type contemplated by the adoption statute. Further, the court emphasized that the statute was not meant to allow a person to ignore paternal responsibilities only to later frustrate the adoption proceedings. The time period under each of the statute's provisions requiring notice to the father referred to the time before the natural mother relinquished her rights. From the moment the mother consents to the adoption, the putative father is barred from asserting parental rights. The court emphasized that a mother could not unilaterally divest a father of his paternal interests, because the father has the chance to come forward. The statute limits the time frame in an effort to protect the child's interests, as well. The court rejected Colton L.'s argument that because his parental rights were not terminated, the adoption could not go forward, and stated that termination of parental rights is not a prerequisite for all adoptions. The court also rejected Colton L.'s argument that because the birth mother committed perjury regarding the natural father's whereabouts, the adoption should not go forward. The court relied on the fact that the statute did not entitle him to notice. DALIANIS, J. and NADEAU, J. concurred that New Hampshire's law applied, but dissented regarding the finding that the biological father's consent was not required because he was not entitled to notice and an opportunity to prove paternity. The dissent opined that the biological father's parental rights should not be terminated absent an adjudication that he is an unfit father. Further the dissent stated that the father was entitled to notice of the proceedings.
POST-DIVORCE DECREE NADEAU, J. The respondent, William J. Nyhan, appealed an order of the Brentwood Family Division (Maher, J.) following a hearing on post-divorce decree motions filed by both parties. The supreme court affirmed in part, vacated in part, and remanded. The petitioner filed for divorce after approximately fourteen years of marriage. A divorce decree was issued after six days of testimony regarding the equitable division of the marital estate. The trial court granted the respondent's request that the proper valuation date regarding the IRA and 401(k) accounts would be the date of the filing of the divorce petition. When the marital property was divided, the decree valued the accounts as of the date of the final hearing, which included additional payments. The respondent was ordered to pay the petitioner, within thirty days from the date of the divorce decree, her share of certain assets and to pay her a fixed sum to equalize the distribution of the remainder of the marital assets. Prior to analyzing the substantive issues, the court determined that the trial court's decision to hear and to rule upon the petitioner's untimely post-divorce decree motions was not an unsustainable exercise of discretion. As to whether the trial court erred in valuing the respondent's accounts as of the date of the final hearing, the court rejected the respondent's argument that the IRA and 401(k) accounts should have been divided in accordance with the valuation date specifically established for pension benefits. The court stated that the accounts at issue were not treated as pension benefits, and thus the accounts were prop erly considered part of the marital estate. The court held that date chosen for valuation was appropriate. Regarding the respondent's argument that the trial court erred in awarding the petitioner interest in her share of the marital assets under RSA 336:1, the court agreed with the respondent that to the extent that the trial court applied RSA 336:1 in awarding interest, it was an error of law. The court found that statutory interest under RSA 336:1 is not applicable to a property division under RSA 458:16-a. The court stated that the trial court's imposition of interest under RSA 336:1 exceeded the actual rate of interest earned on certain proceeds. The court also noted that the trial court did not appear to have considered other equitable factors such as tax liability on the earned interest. Due to this error of law, the court vacated this portion of the divorce decree and remanded for an evidentiary hearing to determine whether the imposition of interest was warranted and if so, what would be a fair rate in order to achieve equity.
PERSONAL JURISDICTION - INTERNET SALES DALIANIS, J. The defendant appealed an order of the Milford District Court (Ryan, J.) denying her motion to dismiss for lack for lack of subject matter jurisdiction. The supreme court reversed. Through an Internet auction on "e-bay" the plaintiff, a New Hampshire resident, purchased an excavator from the defendant, a New Jersey resident. The plaintiff contacted the defendant through electronic mail (e-mail) both prior to the sale, to find out more about the excavator's quality, and following the sale, to arrange for the transaction. The transaction occurred in New Jersey. The plaintiff had problems with the excavator and attempted to contact the defendant for at least a partial refund. The defendant did not respond. The plaintiff filed a small claims complaint. On appeal to determine whether the defendant was subject to personal jurisdiction, the court first inquired whether the State's long-arm statute authorized jurisdiction. The court answered in the affirmative, finding that the State's long-arm statute permitted the exercise of jurisdiction to the extent permissible under the Federal Due Process Clause. Second, the court examined whether the requirements of the Federal Due Process Clause were met by performing a minimum contacts analysis. In this case of specific jurisdiction, the court considered whether: (1) the contacts related to the cause of action; (2) the defendant purposefully availed herself of the protections of New Hampshire law; and (3) it would be fair and reasonable to require the defendant to defend the suit in New Hampshire. Noting the uniqueness presented by Internet sales, the court found that the defendant did not purposefully avail herself of the privilege of doing business in New Hampshire by selling her excavator through eBay. The court explained that nothing indicated that the defendant intentionally directed her sales to New Hampshire, nor did she know until after the transaction that she was contracting with a New Hampshire resident. The court concluded that the defendant did not engage in sufficient activity in New Hampshire to make it fair and reasonable for the purposes of due process to require her to be brought to a New Hampshire court.
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