Bar News - February 18, 2005
Supreme Court At-a-Glance: December 2004
RAILROAD RIGHT-OF-WAY
Boston and Maine Corp. v. Sprague Energy Corp.
December 3, 2004
- Duty to provide railroad crossing. Sprague’s commercial petroleum pipes may constitute "suitable facilities" within the meaning of RSA 373:1 which provides that "[i]t shall be the duty of every railroad to provide . . . suitable gates, crossings, cattle passes and other facilities for the accommodation of persons whose lands are divided, or are separated from a highway, by a railroad."
- Underground pipes. General term "other facilities" as used in the statute encompasses underground pipes.
- Reasonable use. In determining permissible use of an easement, courts are guided by the principle of "reasonable use." An enlargement of use is permissible if "the change of a use is a normal development from conditions existing at the time of the grant, such as an increased volume of traffic." Reasonable use is a question of fact for the trial court.
- Increase in burden. The owner of an easement cannot materially increase the burden of it upon the servient estate, nor impose a new or additional burden thereon. The test to determine the right to make a particular alteration is whether the alteration is so substantial as to result in the creation and substitution of a different servitude from that which previously existed.
- Unreasonable burden. The trial court’s finding that the easement for a grade crossing granted in 1873 would be unreasonably burdened if it were extended to encompass seven underground pipes carrying commercial gasoline is supported by the evidence. The change of use of the grade crossing by Sprague is not "a normal development from conditions existing at the time of the grant."
- 20 year statute of limitations on removal of track. Sprague’s removal of B&M’s track was a deliberate exercise of ownership rights adverse to B&M’s deeded interest in the land. Railroad track installed upon the railroad’s land that is integral to the railroad’s successful operation becomes a part of the property. Thompson v. Valley Railroad Co., 32 U.S. 68, 74-75 (1889). B&M’s action is one to enforce a right to ownership in real property, and therefore the twenty-year limitations period set forth in RSA 508:2 applies.
LEGAL MALPRACTICE
Alfred Carbone v. Nancy S. Tierney, Esquire
December 10, 2004
- Expert testimony required on causation and damages. Even assuming that no expert testimony was required to establish the appropriate standard of care and Tierney’s breach of that standard, Carbone was nonetheless required to provide expert testimony to establish that Tierney’s breach was the legal cause of his injuries. The trier of fact must be able to determine what result would have occurred if the attorney had not been negligent. An analysis of what Tierney should have done and whether her negligence was the legal cause of Carbone’s injuries is so distinctly related to the practice of law as to be beyond the ken of the average layperson.
- Expert testimony on causation. Expert testimony was required to explain whether, if the underlying case had not been dismissed in federal or state court, Carbone would have prevailed in the cause of action against his son. Expert testimony was also required to explain whether Tierney's failure to represent Carbone's interests in Lisa's bankruptcy proceeding actually resulted in harm to Carbone. The facts of this case are thus sufficiently complicated to require expert testimony with respect to causation.
- Mitigation of damages. Tierney did not satisfy her burden of proving that Carbone failed to mitigate his damages. Tierney failed to present any evidence at trial to establish that moving the Essex County Superior Court to correct its error would have lessened Carbone's resultant loss. Viewing the evidence in the light most favorable to Carbone, the supreme court concluded that the trial court did not commit an unsustainable exercise of discretion when it denied Tierney’s motion for judgment notwithstanding the verdict.
- Collectibility affirmative defense. That the collectibility of damages in the underlying case is a matter which should be considered in a legal malpractice action. In a legal malpractice action, noncollectibility of the underlying judgment is an affirmative defense that must be proved by the defendant.
- Verdict not reduced by contingent fee plaintiff would have owed negligent lawyer defendant. If the defendant is barred from reducing the verdict to reflect the contingency fee, the plaintiff is in the same position he would have been in if the defendant had performed competently in the underlying action. The plaintiff will still be required to compensate his or her new attorney for the services the attorney provided in pursuit of the malpractice action. The plaintiff, however, will not be penalized for having to employ two attorneys to get the result the plaintiff should have obtained in the original action. Accordingly, supreme court held that, in a legal malpractice action, the verdict should not be reduced to reflect the amount of a contingency fee agreement.
- Interest on underlying judgment. Because Carbone did not present any evidence relating to interest, the trial court was correct to deny his motion for interest Carbone would have recovered on the judgment in the underlying action.
CONSENT TO SEARCH
State of NH v. Kendall Watson
December 10, 2004
- Consent search of defendant’s hotel room; privacy interest in a hotel room is comparable to that of the home.
- Factors to be considered regarding voluntariness of consent [none determinative]: Whether the defendant was in custody, use of a written consent form, failure to advise defendant of right to refuse consent to search, general cooperative attitude of the defendant to the police, and lack of formal arrest.
- Voluntary consent. Here, the police made a straightforward request of the defendant to go upstairs and "check" his room, to which defendant replied, "No. I don’t mind." The defendant did not argue that the request was preceded by an illegal search or deceptive activity and there is no evidence in the record that the police threatened the defendant. Although the defendant argues that his lack of cooperation after he gave consent vitiated his consent, the supreme court agreed with the trial judge that "[w]hile perhaps done unenthusiastically, the consent took place [and the] defendant did not revoke his consent to the search of the hotel room."
- Burden of proof on consent. Trial court did not err when it ruled that the State met its burden of proving, by a preponderance of the evidence, that the defendant freely, knowingly and voluntarily consented to the search of his hotel room.
LANDOWNER’S DUTY OF CARE--NEGLIGENCE
Dr. Leland White & a. v. Asplundh Tree Expert Company
December 10, 2004
- Landowner’s duty of care. Under New Hampshire law, for a landowner to owe a duty of care to a party entering his property, it must be reasonably foreseeable that injury may occur as a result of the landowner’s conduct.
- Question of law. Whether a landowner’s challenged conduct created such a foreseeable risk of harm is a question of law.
- Question of fact for jury. While it would be proper for the trial court to determine whether Asplundh owed Dr. White a duty of care under the circumstances, it was error, on the record in this case, for the trial court to grant summary judgment on the basis that Asplundh satisfied any such duty. That issue should have been left to the jury.
- Whatever the strength of the plaintiffs’ claims against Asplundh, they present issues of material fact, which must be resolved by a jury. Where the facts were not stipulated, the question of whether a duty of care was breached is for the jury to decide. Accordingly, the trial court erred in granting Asplundh’s motion for summary judgment on the basis that Asplundh satisfied any duty of care it owed to Dr. White.
CONSENT TO SEARCH
State of NH v. William Carbo
December 28, 2004
- Consent search of car after defendant arrested for violation of restraining order.
- Non-arrest traffic stops. Concerns about police expanding the scope of routine non-arrest traffic stops are adequately addressed in State v. McKinnon-Andrews, 151 N.H. 19 (2004)[in which court created a three-part test to evaluate the validity of the police conduct, designed to regulate police conduct by not allowing police to "fundamentally alter the nature of the stop by converting it into a general inquisition about past, present and future wrongdoing, absent an independent basis for reasonable suspicion or probable cause."]
- Consent after arrest. Here, the defendant was not subject to a motor vehicle stop or other Terry stop. Rather, the defendant was arrested for violating a restraining order. Later, while the defendant was at the station, the police asked for consent to search his car. Because the defendant was subject to a valid arrest, there is no similar concern that the police may prolong the seizure of the defendant or otherwise violate his right to be free from an unreasonable seizure. Under these circumstances, the inquiry is limited to whether the consent was free, knowing and voluntary, which the defendant conceded. Accordingly, the trial court did not err in denying his motion to suppress.
HAZARDOUS WASTE CLEANUP
Richard L. Mailloux v. Town of Londonderry
December 28, 2004
- Town which acquired the subject property by tax deed but did not attempt to sell the property within 5 months of acquiring it was liable to abutter for cost of hazardous waste cleanup.
- Qualifying holder. The Town was not a "qualifying holder" and therefore not exempt from liability under RSA chapter 147-B for the cost of cleanup. The condition of the property might have made a sale more difficult, but the statutory scheme deals specifically with hazardous waste facilities. The legislature clearly delineated how to attempt to divest a property. Nothing in the scheme mandates a sale of the property; only an attempt to sell is required. The Town could have attempted to sell the property in accordance with the statute, and could have priced it accordingly. The Town is not exempt from strict liability pursuant to RSA 147-B:10.
- Town liable for $134,918.35 for the cost of cleaning and removing hazardous waste even though that amount included the removal of non-hazardous waste [cars, oxygen tanks]. The sheer volume of the material, some three acres worth, and the combination of the materials made all of the site cleanup in this situation necessary to the cleanup of the hazardous wastes.
- Plaintiff’s claim was not barred by the doctrine of laches because the court was not persuaded that the Town was materially prejudiced by the delay.
- Plaintiff’s claim was not barred by the doctrine of avoidable consequences because the evidence supported a finding that plaintiff did not fail to mitigate and the road constructed by the plaintiff was reasonable and necessary for the cleanup and a proper item of damage.
SWEEPSTAKES ELIGIBILITY
Appeal of Franklin Lodge of Elks #1280 BPOE
December 28, 2004
- Decision of the New Hampshire Sweepstakes Commission declaring petitioner ineligible to apply for a "lucky 7" license pursuant to RSA 287-E:5, V(c) and RSA 287-E:7, VI affirmed.
- RSA 287-E:5, V(c) and RSA 287-E:7 amend in 2003 to prohibit persons who have been convicted of a felony or class A misdemeanor within the previous ten years from applying for a license to operate a bingo game or a license to sell lucky 7 tickets and from participating in the operation of a bingo game or the sale of lucky 7 tickets.
- Use of convictions for illegal gambling, where the acts constituting the convictions occurred prior to the effective date of the amended versions of RSA 287-E:5, V(c) and RSA 287-E:7, VI, does not violate the New Hampshire Constitution’s prohibition against the retrospective application of laws, N.H. CONST. pt. I, art. 23, because the statutes at issue are remedial in nature, and not penal.
- If the purpose of a licensing statute is not to punish but to serve another legitimate governmental purpose, such as protecting the consumers and the public who deal with members of a particular profession or trade, the statute is considered nonpenal.
CONDOMINIUM OWNER’S RIGHTS
Nordic Inn Condominium Owners’ Assoc. v.
Arline A. Ventullo D/B/A Nordic Inn Too
December 29, 2004
- Unit owner’s right to use condominium association trade name, laches, and Anticybersquatting Consumer Protection Act.
- Business use of condominium association’s trade name by unit owner. Provision that the Board of Directors of the condominium acquire and hold for the benefit of the owners, tangible and intangible personal property and that the beneficial interest in such property shall be owned by the owners in the same proportion as their respective shares in other common area provides unit owner nothing more than a beneficial interest in the association’s tangible and intangible personal property. A unit owner has no contractual right to appropriate such personal property. A unit owner may not appropriate the association’s trade name and use it in her business.
- Laches injunction [to protect trade name]. The trial court erred when excusing petitioner’s delay because it was aware of the defendants’ infringing use of petitioner’s trade name from its inception, but nonetheless, the supreme court upheld the trial court’s decision not to apply laches because it held that the interest in preventing public confusion outweighs the prejudice caused by petitioner’s unreasonable delay. Any prejudice the defendants may suffer is outweighed by the interest in protecting the public from future confusion.
- Laches [damages and attorneys fees]. Although the supreme court held that laches did not apply to the plaintiff’s request for an injunction, courts require greater diligence in bringing the action when damages are sought than is required when an injunction is prayed for against future infringements or acts of unfair competition. The court concluded that the equities lie in the defendants’ favor on this issue because the defendants were prejudiced by petitioner’s unreasonable delay and the public interest in trademark owners seeking prompt relief is not served by awarding petitioner damages. Because petitioner’s claims for damages under RSA 358-A:10, I, and RSA 349:10 were barred by laches, its claims for attorney’s fees under those statutes failed.
- Anticybersquatting Consumer Protection Act (ACPA). The supreme court held that the trial court correctly denied petitioner’s claims under the ACPA 15 U.S.C. § 1125(d)(1) because the defendant qualified for the safe harbor provisions of the act. The defendants had reasonable grounds to believe that their registration and use of www.nordicinn.com was lawful. "The main concern of the ACPA is that someone will warehouse similar names and hold the trademark owner hostage in an effort to sell those names at monopoly level prices, a concern not present in this case.
INSURANCE COVERAGE AFTER COMPANY
INSOLVENCY—MEDICAL MALPRACTICE
Richard Benson, M.D. & a. v. NH Insurance Guaranty Assoc.
December 29, 2004.
- NH Insurance Guaranty Assoc. duty to provide coverage to cases "arising" after the insolvency of the medical malpractice insurance company.
- Duty to provide guarantee coverage for insolvent insurance companies. NH Insurance Guaranty Assoc. [NHIGA] is obligated to provide coverage only to the extent of claims that arose prior to or within thirty days of the declaration of insolvency of the underlying medical malpractice insurance company, in this case PHICO.
- Claim rises when claimant suffers harm. "A potential medical malpractice claimant has a cause of action the moment harm is suffered."
- Harm suffered prior to thirty days of the declaration of insolvency. "If the claimant suffered harm prior to the expiration of the thirty-day period during which claims can arise under the statute, then NHIGA will be obligated on that claim no matter when it is filed, within the underlying statute of limitations, because RSA chapter 404-B does not contain a filing deadline.
- Harm suffered after thirty days of the declaration of insolvency. "If the harm was not suffered before the expiration of the thirty-day period, however, the claim did not arise within the period, and NHIGA is not obligated on that claim."
- Discovery rule. Even if the harm is not discovered for a period of time, NHIGA remains obligated on claims where the harm occurred within the thirty-day period and not obligated on any claim where the harm occurred after the expiration of the thirty-day period.
- Minor’s suits. If a minor suffered harm before the expiration of the thirty-day period, NHIGA is obligated on the claim, as long as it is filed within two years after the minor reaches majority
ZONING
Laura Fox & a. v. Town of Greenland & a. Town of Newington
v. Town of Greenland & a.
December 29, 2004
- Zoning case: duty to raise disqualification before vote and definition of "retail sales".
- Duty to raise disqualification at earliest possible time.
Applicants waived any objection to ZBA member sitting because they did not object prior to meeting at which he sat. Had the petitioners raised their objections to ZBA member’s participation at meetings, the board could have corrected the problem by disqualifying that member from voting or taking steps to ensure that he had familiarized himself with the record. The trial court erred by considering whether Wilbur should have been disqualified from voting on Packard’s application because the petitioners did not raise their objection at the earliest possible time.
- The zoning ordinance permitted retail sales/services in an industrial district as either a principal use (by special exception) or as an accessory use (under certain circumstances). Thus, the ZBA acted reasonably in concluding that a retail sales/service use is permissible as a principal use in an industrial district by special exception.
- "Retail" is the sale of commodities or goods in small quantities to ultimate consumers, often contrasted with "wholesale," which is the sale of goods or commodities in quantity usually for resale. The trial court found that "[e]ach of the anticipated occupants of [the proposed] shopping center is in the business of selling goods in small quantities to consumers" and thus the supreme court agreed with the trial court that the ZBA acted reasonably in treating proposed use as a ‘retail sales/service’ use.
AWARD OF INTEREST
Darren Starr v. Governor, State of NH
December 29, 2004
- Where plaintiff in a civil case recovers damages, the award of interest is mandatory, not discretionary.
- Award of interest.
RSA 524:1-b provides that the clerk of court "shall" add interest to the amount of damages from the date of the filing of the petition to the date of judgment.
- Trial court has no discretion to not award interest. The use of the word "shall" is not discretionary, but rather requires mandatory enforcement
SPECIAL SCHOOL DISTRICT MEETING
Bedford Chapter 0 Citizens for a Sound Economy & a.
v. School Administrative Unit #25 December 29, 2004
- Special school district meeting to approve the execution of a twenty year contract with a neighboring school district involves a vote to raise or appropriate money within the meaning of RSA 197:3 and therefore in order for the meeting to approve the contract the ballots cast at the special meeting must be equal in number to at least ½ of the number of voters of such district entitled to vote at the regular meeting next preceding such special meeting.
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