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Bar News - June 18, 2004 NH Supreme Court 3JX Summaries The following are summaries of cases decided by a three-judge panel on an expedited schedule (3JX). The full text of the orders is available on this site under Publications/ NH Supreme Court 3JX Panel Orders.2003-0753 The court on May 26, 2004, issued the following order: The petitioner, Darren Starr, appeals a decision of the trial court dismissing his petition for declaratory judgment for lack of standing. We affirm. "In evaluating whether a party has standing to sue, we focus on whether the party suffered a legal injury against which the law was designed to protect. A party will not be heard to question the validity of a law, or of any part of it, unless he shows that some right of his is impaired or prejudiced thereby." Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 587 (2000) (citation, quotation, italics and brackets omitted). The petitioner argues that DOC rules governing educational programs have created a statutory right and that DOC’s failure to provide five teachers at NCF deprives him of the ability to obtain tutoring for his college-level courses. We disagree. Even if we assume that the cited rules apply to NCF, they do not create a statutory right entitling inmates to a particular program. See State v. Evans, 127 N.H. 501, 506-07 (1985). Because the petitioner failed to establish that any of his rights were impaired or prejudiced by the DOC’s alleged noncompliance with its rules, the trial court correctly dismissed his petition for lack of standing. 2003-0818 The court on May 27, 2004, issued the following order: The defendant, Robert Morin, Jr., appeals an order of the family division granting a protective order to the plaintiff, Ellin Morin. He contends that the trial court erred in failing to make specific findings of fact to support the order. We vacate and remand. RSA 173-B:5 authorizes a trial court to issue a protective order upon a finding of abuse. See RSA 173-B:1, I (defining "abuse"). "Because RSA 173-B:1 contains an enumerated list of prohibited conduct, we read RSA 173-B:5 to require that a trial court must make a specific finding of criminal conduct in order to issue a restraining order against a defendant." Fillmore v. Fillmore, 147 N.H. 283, 285 (2001). In this case, the protective order con tained no specific finding of criminal conduct and no factual findings supporting such a determination. Because the trial court failed to make the requisite findings, we vacate the protective order and remand for further consideration. 2003-0507 The court on May 28, 2004, issued the following order: The plaintiff, Gail Devoid, trustee of the Page Pond Trust, appeals a decision of the superior court upholding a decision of the Boscawen Zoning Board of Adjustment (ZBA) to grant a special exception. She contends that the proposed subdivision did not meet the requirements of the zoning ordinance and that the ZBA hearing following remand was "unfair." We affirm. Our review of the superior court’s decision is deferential. See Lone Pine Hunters’ Club v. Town of Hollis, 149 N.H. 668, 669 (2003). We will uphold the decision unless it is unsupported by the evidence or legally erroneous. Id. The superior court’s review of the ZBA’s decision is equally limited. Id. at 670. The superior court must treat the factual findings of the zoning board as prima facie lawful and reasonable and cannot set aside its decision absent unreasonableness or an identified error of law. Id. The review by the superior court is not to determine whether it agrees with the zoning board’s findings, but to determine whether there is evidence upon which they could have been reasonably based. Id. 2003-0455 The court on June 1, 2004, issued the following order: Following a jury trial, the defendant, Lee Carpenter, was convicted of aggravated felonious sexual assault. See RSA 632-A:2, III (1996). On appeal, he contends that the trial court’s decision to limit the evidence presented was not sustainable. Although the defendant cited New Hampshire Rule of Evidence 404(b) in his brief, at oral argument, he conceded that his claim of error is limited to Rule 403. We affirm. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence." N.H. R. Ev. 403. Absent an unsustainable exercise of discretion, we will not reverse a trial court’s determination of the admissibility of evidence. See State v. DiNapoli, 149 N.H. 514, 518 (2003). To bar testimony about the relationship between the victim and her mother and grandmother was sustainable. See N.H. R. Ev. 403. 2003-0540 The court on June 1, 2004, issued the following order: The petitioner, Francis B. Rives, appeals his divorce decree. He contends that the trial court erred in finding that it had jurisdiction to order the transfer of his interest in Yarrow, LLC, a Nevada corporation. We affirm. The trial court found that "the respondent would qualify as a family member under the articles of agreement of Yarrow, LLC." Based on this finding, the court concluded that Yarrow’s articles of agreement would permit the petitioner to transfer all or a portion of his interest in Yarrow to the respondent without invoking certain provisions of the articles of agreement addressing Yarrow’s members’ rights of first refusal or vote prior to transfer of Yarrow units. The court then awarded the respondent 41 percent of the petitioner’s interest in Yarrow, LLC, including the income received monthly therefrom. On appeal, the petitioner argues that the trial court erred in "exercis[ing] personal jurisdiction over Yarrow, LLC without the corporation being joined as a party and without sufficient minimum contacts." 2003-0599 The court on June 1, 2004, issued the following order: The defendants, Gary C. Ledoux and Charlene Ledoux, appeal an order of the trial court awarding the plaintiffs, Joseph T. Salisbury and Tammy Salisbury, $5,000 plus interest and costs. They contend that the trial court erred in issuing a final order prior to receiving a report that it had ordered the plaintiffs to produce. We affirm. The plaintiffs bought a house from the defendants; they filed suit after discovering that its well was dry. After a hearing, the trial court found that the defendants were aware of the water shortage but had indicated there was no problem with water quantity on the "Seller Property Information Report." Based upon its findings, the court entered judgment for the plaintiffs. See Snierson v. Scruton, 145 N.H. 73, 78 (2000) (elements of negligent misrepresentation are negligent misrepresentation of material fact by defendant and justifiable reliance by plaintiff). The defendants said they did not receive a copy until after the trial court issued its order, they argue that the court did not have the report at the time it issued its order. We need not determine the time of the filing of the report, however, as we conclude that any error in failing to provide it to the defendants was harmless.
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