Landlord Tenant

Green v. Sumner Properties, LLC, No. 2004-317

May 9, 2005: Affirmed

• Did the District Court err by awarding tenant one-half of tenant’s rent when the landlord induced tenant to rent a two-bedroom apartment by representing that there would be two available bedrooms, when in fact, the apartment had only one available bedroom the tenant was forced to share?

Tenant was foreclosed from pursuing contract damages because he ratified the lease agreement by remaining in the apartment after realizing he would be forced to share a bedroom with a roommate because a stranger occupied the second bedroom.  Nevertheless, the tenant was entitled to tort damages for the landlord’s misrepresentation that tenant and his roommate would be entitled to use both bedrooms.

Zoning

McDonald v. Town of Effingham Zoning Board of Adjustment, No. 2004-453

May 6, 2005: Reversed and Remanded

• When a zoning board of adjustment denies a variance applicant’s motion for rehearing, but in doing so cites new and independent grounds for denying the variance, is the applicant required to file a second motion for rehearing based on the newly-cited dispositive ground?

A literal reading of the applicable rehearing statutes, RSA 677:2 and 677:4, would produce absurd and unintended results.  Namely, an applicant would be required to pursue an appeal to the superior court on the original denial of the motion for rehearing and simultaneously pursue a second motion for rehearing, followed by second superior court appeal.  Therefore, “when a ZBA denies a motion for rehearing, the aggrieved party need not file a second motion for rehearing to preserve for appeal any new issues, findings or rulings first raised by the ZBA in that denial order.” Slip Op. at 4.

Criminal Law

Petition of the State of New Hampshire, No. 2004-320

May 9, 2005: Petition for Writ of Certiorari Denied

• Whether a defendant convicted of three counts of aggravated felonious sexual assault in the same trial, who has no criminal record, must be sentenced to life in prison without the possibility of parole pursuant to RSA 632-A:10-a?

The Supreme Court held that the legislature did not intend for this statute to apply in the defendant’s situation.  If the legislature intended for the mandatory life sentence to apply to individuals in the defendant’s position, the Supreme Court urged the legislature to make this unmistakably clear.

Petition of the State of New Hampshire (State v. Fisher), No. 2003-757

May 12, 2005: Reversed

• Whether RSA 651:20, I, gave the superior court the authority to suspend two and one-half years of the defendant’s witness tampering sentence when the defendant filed the petition to suspend before the three-year waiting period expired?

The superior court exceeded its statutory authority by granting a petition that was not properly before it.  The premature petition should have been dismissed without a hearing.

State v. Sawtell, No. 2003-795

May 9, 2005: Affirmed

• Whether defendant’s inculpatory statement to a treating emergency room nurse was admissible?

• Whether testimony of a witness about defendant’s unhappiness as a father and defendant’s attempts to throw the victim out of his apartment was admissible?

• Whether testimony of a witness that five and ten months before the murder, the defendant threatened the victim with a gun was admissible?

Defendant shot the mother of his two-month-old son and then shot himself in the chest.  The defendant’s statement to an emergency room nurse that he was aiming for his heart when he shot himself was not made for the purposes of medical diagnosis or treatment, and was not protected by the physician-patient privilege. The defendant’s dislike of being a parent and his attempts to evict the victim from his apartment were highly probative of the defendant’s motive and were not unfairly prejudicial.  Evidence of defendant’s prior threats against the victim was admissible to show intent because the prior threats involved the same victim, the same weapon and occurred under similar circumstances.  The prior threats were close enough in time to the murder to be admissible.

Employment

Merrimack Valley Wood Products, Inc. v. Glen Near, No. 2004-447

May 9, 2005: Affirmed

• Whether a restrictive covenant that prevented a former employee from doing business with any of the 1,200 customers who transacted business with the employer in the year before the employee’s last day of work was enforceable?  If not, was reformation of the covenant required?

This restrictive covenant was more restrictive than necessary to protect the employer’s legitimate interest in its customers.  The employee had no contact with 1,140 of the employer’s customers, and therefore had no goodwill with them that he could exploit to the detriment of the employer.  No reformation of the covenant was required because the employer’s actions  lacked good faith because it failed to mention the covenants until six months afterthe employee started working and it made the employee’s continued employment contingent on accepting the late-disclosed covenants.

Professional Conduct

Reiner’s Case, No. LD-2005-001

May 6, 2005: Remanded to referee for a new hearing:

• Whether the referee erred when he recommended that an interim suspension of an attorney facing felony charges should be lifted because it was not necessary for the protection of the public or the preservation of the integrity of the legal profession?

When a member of the New Hampshire Bar is indicted or bound over for any felony, the New Hampshire Supreme Court may impose an interim suspension without hearing pursuant to Supreme Court Rule 37(9)(i) pending the resolution of the criminal charges.  The attorney is entitled to a post-suspension hearing, at which the Attorney Discipline Office (“ADO”) must prove that the suspension is necessary by a preponderance of the evidence.  To meet this burden, the ADO does not have to prove that the indictment allegations are true.  Instead, the ADO must prove that, in light of the allegations in the indictment, suspension is necessary to protect the public and the integrity of the profession.  Accordingly, the referee erred by placing the burden of proof on the respondent and by basing his finding that the suspension was unnecessary on the “presumption of innocence” applicable in criminal proceedings.

Richmond’s Case, No. LD-2003-001

May 6, 2005: Referee’s recommended sanction adopted.

• Whether the referee’s recommended sanction of a six-month suspension was appropriate in a case where an attorney was found to have committed multiple violations of the Rules of Professional Conduct involving conflicts of interest, lack of competence in securities law and misrepresenting his competence to practice securities law?

In determining the appropriate sanction, the Supreme Court looked to the following factors for guidance: (1) the duties violated; (2) the lawyer’s mental state; (3) the potential or actual injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating factors.  A six-month suspension was appropriate because the attorney:  committed multiple violations (one of which involved dishonesty); caused his client pecuniary harm; committed  prior disciplinary offenses; showed little appreciation for the conflict of interest issues leading to the charges against him; and no significant mitigating factors existed.

Indemnification/Contracts/Statute of Limitations

Wood v. Greaves d/b/a/ Agricultural Land Management, No. 2004-517

May 20, 2005: Affirmed

• Whether the statute of limitations should toll pending a judgment in the underlying Department of Environmental Services’ enforcement action against the plaintiffs when the plaintiffs brought a claim against the defendant who built the horse facility on the plaintiffs’ land that led to the wetlands violation.

The plaintiffs’ lawsuit against the defendant builder is not an indemnification claim for which the statute of limitations should toll pending a judgment in the underlying case.  The plaintiffs’ claim against the defendant is a breach of contract claim, thus the statute of limitations began to run when the plaintiffs became aware of their potential claim.  Accordingly, the Supreme Court affirmed the trial court’s grant of summary judgment for the defendants because the claim was barred by the statute of limitations.

Criminal Law

State v. Pace, No. 2004-495

May 20, 2005: Affirmed

• Whether trial court erred by declining to give a jury instruction on mutual combat in a simple assault case.

There was no evidence to suggest that the defendant’s wife intended to fight the defendant when the defendant pushed his wife to the ground while intoxicated and therefore, the Supreme Court affirmed the trial court’s decision not to give a mutual combat instruction in this simple assault case.

Constitutional Law – Right to Jury Trial

SNCR Corp. d/b/a/ Suncor Corp. v. Greene, No. 2004-315

May 20, 2005: Affirmed

• Whether the defendant employer was entitled to a jury trial when it never raised its right to a jury trial during the New Hampshire Department of Labor wage claim hearing.

At no time during the Department of Labor hearing did the defendant raise its right to a jury trial and therefore it waived its right to a jury trial.  A party must raise the issue of its right to a jury trial at the earliest time possible.  The Supreme Court therefore affirmed the superior court’s affirmation of the Department of Labor’s decision in favor of the plaintiff on the wage claim.

Property Law – Commercial Leases

Matte v. Shippee Auto, Inc., No. 2004-189

May 20, 2005: Reverse and Remand

• Whether the trial court had the authority to deny the eviction sought by the plaintiff and order the affirmative relief of allowing the defendants to possess the leased premises if they paid the rent they owed the plaintiff minus setoffs by a certain date.

When the plaintiff does not seek money damages under RSA 540 (they only sought possession of the leased premises) the trial court erred when it held that the eviction action would be dismissed it the defendant paid the plaintiff the unpaid rent minus setoffs by a certain date.  Since the plaintiff did not elect the remedy of damages, it was not within the trial court’s power to grant such remedy.  The Supreme Court also declined to elect the rule that lease covenants are mutually dependent or that the warranty of habitability applies to commercial leases.

Tort Law – Recreational Immunity

Estate of Jaycob Gordon-Couture v. Brown, No. 2004-566

May 23, 2005: Reverse and Remand

• Whether a landowner is immune from liability under two recreational use statutes, RSA 212:34 and RSA 508:14, I, when he opens up his land on a pond for a private birthday party.

RSA 212:34 and RSA 508:4 grant immunity to private landowners who permit members of the general public to use their land for recreational purposes.  Therefore, these statutes did not grant a private landowner who hosted a children’s birthday party at which a child drown immunity.  The landowner did not open his land to the general public by throwing the birthday party and the deceased child was permitted to use the property as a social guest.

Security Interests – Attachments

ACG Credit Co., LLC v. Gill, No. 2004-525

May 25, 2005: Affirmed

• Whether the trustee defendant had standing to contest an attachment of property within its possession and whether the UCC requires security interests to be in writing.

The Supreme Court affirmed the trial court’s award of an attachment on antiques held by the auctioneer trustee defendant in which it argued it had a security interest.  The trustee defendant had standing to challenge the attachment but its interest in the property was not that of a security interest; instead, it had a consignment agreement with the defendant.  There was no underlying obligation between the trustee defendant and the defendant property owner  so there was not a security interest.  The Supreme Court declined to rule on whether a security interest must be in writing or whether it may be oral because that issue was not dispositive to the trial court’s decision.

Criminal Law

State v. Yates, No. 2004-283

May 23, 2005: Affirmed in part, reversed in part, vacated in part and remanded for sentencing

• Whether convictions for felonious sexual assault and endangering the welfare of a child should be overturned because trial court played a 911 tape and whether the endangering welfare of a child claims should have been dismissed because the defendant did not owe the victim any special duty of care.

The trial court erred by playing the 911 tape in which the first responders to the scene concluded that the victim had been sexually assaulted.  Prejudice outweighed any probative value the tape may have had.  The error in admitting the tape, however was harmless.  The Supreme Court reversed the trial court’s conviction for endangering the welfare of a child under RSA 639:3 because the defendant owed no duty to the child.  To violate RSA 639:3, the defendant must have some familial or supervisory duty to the victim.  The case was remanded for resentencing.

State v. Fernandez, No. 2004-129

May 23, 2005: Affirmed

• Whether the trial court erred by (1) denying the defendant’s request for depositions, (2) denying the defendant’s request that the court voir dire of prospective jurors about the defendant’s race and the fact that he lived in Lawrence, Massachusetts, (3) declining to voir dire a juror whom the state alleged was asleep during the State’s closing argument, (4) denying the defendant’s motion in limine to preclude the state from using the word “murder” when questioning witnesses, (5) permitting the state to introduce evidence that the defendant remained a fugitive after seeing himself on a television show about the stabbing murder for which he was convicted, (6) permitting the state to introduce testimony that the defendant fled and had a duffel bag with a police scanner and a gun on him before fleeing, and (7) denying the defendant’s motion in limine to preclude the medical examiner from testifying that the victim’s wound suggested torture.

The Supreme Court affirmed the trial court’s murder conviction of the defendant.  The denial of four eyewitnesses depositions was affirmed because the defendant had “ample information to prepare for his defense” with the witnesses’ sworn statements and because the state ran background checks on all of the witnesses for the defendant.  The denial of the defendant’s request that the court  voir dire prospective jurors about the defendant’s race and residence was affirmed because there were no “special factors” in this case and the court could not conclude that racial issues were “inextricably bound up with the conduct of the trial.”  The trial court’s decision not to voir dire the juror who was allegedly asleep during the state’s closing and instead make that juror an alternate was affirmed because the defendant cited no authority for the proposition that the juror must be voir dired nor did he offer any evidence that he was prejudiced by the trial court’s decision.

While the use of the word “murder” when questioning witnesses may have been prejudicial, the Supreme Court held that the trial court’s decision that the prejudice was slight and did not substantially outweigh any probative value was sustainable. The Supreme Court sustained the trial court’s admission of evidence that the defendant remained on the run after seeing himself on an “America’s Most Wanted” television show and that he had a duffel bag containing a gun and police scanner prior to fleeing because both were relevant evidence regarding his consciousness of guilt.  Finally, the Supreme Court rejected the defendant’s argument that the medical examiner’s testimony including the word “torture” was an inadmissible opinion regarding the defendant’s state of mind.  The word “torture” was used to describe the victim’s wounds and not their cause or the defendant’s intent.

The At-a-Glance column covering the May cases was compiled by Lisa M. Lee, an attorney with Ransmeier & Spellman PC in Concord and a member of the Bar since 2001, and by Cathryn E. Vaughn, an attorney with McLane, Graf, Raulerson & Middleton in Manchester, a member of the Bar since 2004.  Atty. Lee covered the first eight cases and Atty. Vaughn the last eight.  Bar News thanks them for agreeing to cover these cases on short notice.

Lisa M. Lee                        Cathryn E. Vaughn

SC At-a-Glance June 2005

By Linda J. Argenti

Criminal

State v. Cowles; No. 2004-160

June 21, 2005; Affirmed

• Whether the trial court erred in not suppressing defendant’s confession obtained following an illegal arrest.

The trial court’s failure to suppress defendant’s confession after a warrantless entry into Defendant’s home is upheld.  A test under our state constitution applies four factors pursuant to State v. Gotsch, 143 N.H. 88, 90 (1998), most notably the purpose and flagrancy of police misconduct.  Since the misconduct is not flagrant, Miranda warnings were given, and the police officer was in hot pursuit of defendant committing a felony, admissibility outweighs exclusion, albeit by a narrow margin.

State v. Littlefield; No. 2003-627

June 16, 2005; Affirmed

• Whether the trial court erred with regard to certain jury instructions given or not given where Defendant was convicted of negligent homicide in the operation of a boat on Lake Winnepusaukee.

• Whether the trial court erred by admitting testimony of certain witnesses who described the operation of the boat or whose husband lied.

• Whether the trial court erred by failing to instruct the jury that certain deposition testimony of a forensic laboratory analyst could be considered substantively.

• Whether the trial court erred in failing to define the word “gross” in connection with “gross deviation”.

• Whether the trial court erred in denying motions to dismiss for insufficiency of evidence.

• Whether the trial court erred in utilizing flight as an aggravating factor in sentencing.

Jury instructions must be interpreted by reviewing them in their entirety.  The court did not err in omitting explicit language concerning “flight from the police” especially where evidence was presented regarding same and the jury could decide whether evidence of flight by defendant was credible.

The court’s  instruction did not  exacerbate the issue of flight by admission of testimony of a witness who saw a boat acting “furtively”.  Relevant evidence is a question for the jury’s sound discretion.  The court’s ruling was not untenable or unreasonably prejudicial.

There was no duty by the court to differentiate between duties of a boater and those of a motorist or for the trial court to give an instruction concerning conduct after an accident since Defendant was not charged with that offense.

The court did not err in failing to provide jury with a transcript of the forensic expert’s testimony since such refusal is within the trial court’s discretion.

The court refuses to consider whether trial court erred in allowing state to argue in closing as to forensic expert’s opinion where defendant did not properly preserve argument for appeal.

The court refuses to consider whether trial court erred by allowing state to argue that jury should discount testimony of a witness whose husband had lied where issue not properly preserved and such error if it occurred was harmless.  Witness testimony was cumulative and inconsequential.

Trial court has no obligation to give dictionary definitions of words that have common meanings such as “gross” and “deviation” or to answer a jury’s question with specific language requested by defendant.

No error in utilizing flight as an aggravating factor in sentencing where state presented considerable evidence of same and court properly considered traditional goals of sentencing – punishment, deterrence, and rehabilitation.

Consistency among multiple court verdicts is not necessary and the state is not obligated to dismiss one count because alternative theory dismissed.

State v. Hall; No. 2003-434

June 23, 2005; Affirmed

• Whether trial court erred by denying defendant’s motion to dismiss indictments for second-degree murder of his mother in a second trial on grounds that state presented only a portion of his testimony from the first trial to the grand jury.

• Whether trial court erroneously denied defendant’s motion to recuse.

• Whether trial court erroneously allowed state to introduce excerpts from his mother’s letters.

Defendant has a right to have grand jury consider the evidence but state need not present all of the evidence it will eventually present at trial to the grand jury.

No evidence of irregularity or flagrant misconduct found on part of prosecutor.

A judge should disqualify herself only where her impartiality might reasonably be questioned and defendant did not show existence of bias.

Trial court’s decision to admit defendant’s mother’s letters under Rule 803(3) exception to hearsay to show declarant’s then existing state of mind, etc., was relevant in showing victim’s fear of an accused.

State v. Gero; No. 2004-331

June 23, 2005; Vacated and Remanded

• Whether the trial court erred in granting the state’s post-plea motion to destroy seized property.

The issue of when property is to be forfeited under RSA 595-A:6 is one of first impression and the court focuses on the forfeiture issue as well as the public’s interest in punishment, future criminal conduct, as well as due process in a totality of circumstances.  Trial court’s reasoning regarding forfeiture cannot be ascertained.

State v. Robert Grimes; No. 2004-334

June 14, 2005; Affirmed

• Whether evidence was sufficient for jury to find that victim was “physically helpless to resist” pursuant to RSA 632-A:2, I (b), which led to conviction of defendant on aggravated felonious sexual assault.

While the statute does not define the phrase “physically helpless to resist”, the plain meaning of the statute indicates that victim need not be unconscious, and is physically helpless if incapable of resisting sexual penetration of defendant.  Defendant may be guilty of aggravated felonious sexual assault through different circumstances which focus on actions of defendant as well as the condition of the victim.

Administrative Boards

Harley Davidson Motor Company, Inc. & a. v. Seacoast Harley-Davidson, Inc.;

No. 2004-617

June 23, 2005; Affirmed

• Whether a challenge to the NH Motor Vehicle Industry Board’s subject matter jurisdiction is exempt from a limitation on appeal.

Since the issue of subject matter jurisdiction may be raised at any time in the proceedings, litigation of the merits will not result in waiver of issue of subject matter jurisdiction.  Therefore, an appeal at this juncture is premature.

Insurance

Sandra Tothill v. Estate of Warren Center; and Mt. Washington Assurance Corporation v. Phoenix Mutual Fire Insurance Co. & a; No. 2004-466 and 2004-756

June 24, 2005; Reversed on negligence action; moot as to declaratory judgment

• Whether Plaintiff has negligence claim against employer for injuries suffered in an auto accident or is barred under worker’s compensation law RSA Chapter 281-A.

• Whether automobile insurance carrier has obligation to indemnify policy holder for compensation owed by him to plaintiff.

As an employee subject to the worker’s compensation statute, plaintiff waives all rights of action against employer and her only remedy is worker’s compensation, rendering auto insurer’s liability to indemnify employer, moot.

Department of Employment Security

Appeal of Simone Riendeau;

June 24, 2005; Affirmed

• Whether petitioner is ineligible for unemployment benefits because she was discharged for misconduct connected with her work.

A single act of misconduct is enough to deny unemployment benefits if it was a deliberate violation of a company rule, especially where employee received training and employer is harmed by violation of rule designed to protect legitimate interests of employer.

Civil

Maureen Soraghan v. Mt. Cranmore Ski Resort, Inc.; No. 2004-726

June 24, 2005; Reversed and Remanded

• Whether trial court erred in granting summary judgment to defendant pursuant to RSA 508:14 Recreational Use statute, after plaintiff fell in a crevasse between two buildings owned by defendant.

Where injured person was not on property for a purpose relating to landowner’s business, forwhich landowner customarily charges, RSA 508:14 does not apply.

Continental Biomass Industries, Inc. v. Environmental Machinery Company & a; No. 2004-686

June 14, 2005; Reversed

• Whether trial court erred in denying defendant’s motion to dismiss for failure of plaintiff to properly serve defendant and for lack of personal jurisdiction over defendant located in Ohio.

Where plaintiff’s cause of action centers on the various parties’ proprietary interests in disputed property, trial court should have evaluated whether it had quasi in rem jurisdiction rather than “in rem”.  Since the location of the piece of property was in New Hampshire only by chance, and defendant had insufficient minimum contacts in the state, it is not required to defend a lawsuit in New Hampshire.

Mirvat Osman v. Gary Gagnon d/b/a Floors and More; No. 2003-698

June 16, 2005; Affirmed

• Whether trial court erred by ruling that plaintiff’s claim was barred by res judicata, where plaintiff and former spouse had contracted with defendant and former spouse had been sued in district court and failed to appeal findings to superior court.

All three conditions for res judicata were met.  Parties must be the same or in privity, same cause of action must be before court in both instances and final judgment was rendered in first action.  Plaintiff’s right to due process was not violated as either she or former spouse could have transferred case from small claims to superior court.

Legislative

Daniel M. Hughes v. Speaker of the House of Representatives & a; No. 2005-215

June 2, 2005; Reversed

• Whether defendant violated statutory provisions governing the public’s statutory right to know.

• Whether plaintiff’s claims under Chapter 91-A, which provides that all public proceedings shall be open to the public and all persons permitted to attend is non-justicible.

• Whether the trial court erred in finding that defendants violated Part I, Article 8 of the state constitution regarding the Right to Know law.

The legislature has sole authority as to adopting rules of procedure and whether a legislature has violated procedures of a state right to know statute is not justicible, and not constitutionally mandated.

Claims under Part I, Article 8, however, are justicible in that they concern compliance with mandatory state constitutional provisions that protect the public’s interest and protect the legislature’s prerogative to set its own procedural rules and engage in free and frank debate this significantly outweighs public’s right of access to contested negotiations.  The legislature could properly determine that denying public access to negotiations was reasonable restriction on public’s right to access without retreating from principle of open government.

Landlord/Tenant

David A. Pope and Susanne M. Pope, Individually and as Trustees of the David A. Pope 1990 Revocable Trust and the Woodie 1990 Revocable Trust v. Nancy Moran Lee; No. 2004-314

June 3, 2005; Reversed

• Whether trial court, having determined that initial lease agreement did not create right to perpetual renewals, erred in concluding that defendant was a tenant at will.

Based upon plain language of the 1998 lease agreement regarding an option to renew, defendant has right to continually renew lease of the premises and is not a tenant at will.  The parties intended to create a right to continual renewal of the lease.

Planning Board/Subdivision

DHB, Inc. v. Town of Pembroke & a.; No. 2004-397

June 14, 2005; Affirmed

• Whether trial court erred in upholding decision of planning board rejecting plaintiff’s application of a subdivision for non-conformity.

• Whether trial court lacked subject matter jurisdiction to hear this case.

While technically plaintiff has no statutory right under RSA 677:15 to petition trial court where application had yet to be successfully submitted to the board, the court has jurisdiction to consider a petition for writ of certiorari.

The trial court reasonably decided to uphold the board’s determination that plaintiff’s application was incomplete, especially since the board unanimously found the application lacking and town’s engineer had commented negatively on application earlier; and where several required items were incomplete, even after 3 application revisions.

Employment Law

Daniel Yoder v. Town of Middleton; No. 2004-122

June 16, 2005; Affirmed

· Whether trial court erroneously upheld town’s decision to terminate plaintiff as chief of police.

Trial court’s decisions is upheld unless unsupported by evidence or erroneous as matter of law.  Standard is if a reasonable person could have reached the same decision.

Plaintiff’s inconsistent statements, violation of public trust and theft by unauthorized taking provided sufficient evidence to affirm town’s decision to terminate.  Plaintiff need not be charged with a criminal act to constitute “substantial cause.”  Admission of Attorney General’s file did not prejudice plaintiff’s case where findings were supported by other evidence.  Laurie issue not addressed (See State v. Laurie, 139 N.H. 325, 333 (1995)) where evidence compelled trial court’s finding of substantial cause for dismissal.

Linda J. Argenti is a sole practitioner and president of Linda J. Argenti, P.C.  She practices primarily family law, bankruptcy, personal injury and civil litigation and has been a member of the NH Bar since 1984; she is also a member of the Massachusetts Bar.