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Bar News - October 21, 2005 Supreme Court At-a-Glance – September 2005 By: Kelleigh L. Domaingue
Chester Rod and Gun Club, Inc. v. Town of Chester No. 2004-857 Rockingham County Superior Court September 2, 2005: Affirmed in part; reversed in part; and remanded The Town of Chester appeals a Superior Court order reversing the denial by the Town’s zoning board of adjustment of a variance requested on behalf of the Chester Rod and Gun Club for the construction of a telecommunications tower. The zoning board had previously denied an application for variance to build the tower on private land, but granted it with regard to Town land, looking to a September 2001 warrant article as a declaration of the public interest as grounds for the denial of the variance with regard to the private land. The New Hampshire Supreme Court held that the zoning board erred in looking to the warrant article, since the relevant public interest is set forth in the applicable zoning ordinance. The Court also held that it was insufficient for the trial court to have concluded, as a matter of law, that granting the variance would not be contrary to the public interest or injure the public rights of others. Such a conclusion was improper where the zoning board made no findings as to the other requirements for a variance and the record was insufficient for the trial court to conclude, as a matter of law, that they had been met. The Court concluded by stating that the trial court shall remand to the zoning board for such further proceedings as it may deem necessary, and that upon remand the zoning board shall consider whether granting the variance is contrary to the public interest or injures the public rights of others. The Court noted that it was not its role, nor was it the role of the trial court, to act as a super zoning board and decide factual matters in the first instance.
Nadeau, J., with whom Dalianis, J., joined, concurred in part and dissented in part (disagreeing that the error in denying the plaintiff’s application for a variance based upon the ZBA’s interpretation of the public interest factor requires that the case be remanded to the ZBA for further proceedings, and stating that the decision should be reversed, as remand in unnecessary). Transportation/Administrative Law: Appeal of New Hampshire Department of Transportation No. 2004-302 Transportation Appeals Board September 2, 2005: Reversed. In this case, the NH Department of Transportation appealed a decision of the Transportation Appeals Board (TAB), requiring that a driveway permit be granted to the respondent, David C. Dobbins. Mr. Dobbins had requested such a permit for Lot 3 of a 5-lot subdivision, but it had been denied by District 5 on the grounds that the three- driveway rule prevented the granting of such a permit, and the four driveways authorized for the subdivision in 1986 was one more than would be allowed normally. The TAB later granted his request, interpreting the unusual conditions exception to the three-driveway rule to give it authority to do so. The New Hampshire Supreme Court reasoned that, since the driveway statute gives the DOT broad power to regulate driveways, since subdivisions are considered single parcels of land, since the DOT subsequently promulgated certain administrative rules – one of which limited the number of driveways on a parcel to three, since the rule neither conflicts with the driveway statute nor oversteps the discretion granted to the DOT, and since the rule had long been in effect without disturbance, it was a valid exercise of the DOT’s rulemaking authority. The Court then turned to the DOT’s appeal, where the DOT argued that the ZBA erred in its interpretation of the unusual conditions exception to the three-driveway rule because it required the DOT to identify specific safety concerns presented by the respondent’s proposed driveway before denying its permit application. The New Hampshire Supreme Court agreed, concluding that under the rule which allows for review of permit applications seeking access points beyond the presumed three driveway limit, it was the respondent who sought an exception to the three-driveway rule, and the burden remained with him to establish all requirements to warrant the grant of an exception. Since the respondent failed to do so, the DOT may rely upon general safety concerns in denying his application. The Court then concluded that the ZBA erroneously compelled the DOT to grant the respondent’s driveway permit application under the exception to the three- driveway rule. Criminal: State of New Hampshire v. Vincent Schonarth No. 2003-622 Carroll County Superior Court September 2, 2005: Affirmed. The defendant, Vincent Schonarth, appealed his convictions on 17counts of theft by deception, arguing first that the trial court erred in consolidating the charges for trial. The New Hampshire Supreme Court held that while a defendant has an absolute right to severance of unrelated offenses, offenses are deemed related when they are based upon the same conduct, a single criminal episode, or a common plan. Since all of the defendant’s actions involved his efforts to defraud an elderly victim of his property through ‘increasingly grandiose schemes,’ the defendant’s actions demonstrated a prior design, and it was proper to consolidate the charges for trial. The defendant argued that the state failed to present sufficient evidence that he committed theft by deception, since the state failed to prove that the victim’s transfers of property were the consequence of the defendant’s false statements and since the victim retained possession of the land, which improved in value because of the defendant’s improvements. The Court rejected this argument, noting that the fact that the victim retained ownership in land that may have increased in value due at least in part to improvements made by the defendant does not alter the Supreme Court’s conclusion that the defendant obtained substantial monies from the victim by deception. Finally, the defendant argued that the trial court erred in permitting the state to take the trial deposition of the victim. Again, the New Hampshire Supreme Court rejected this argument, holding that in light of the fact that the victim was 83 years old, that several continuances had already been granted, and that the victim had exceeded the life expectancy, good cause existed, under R.S.A. 517:13, II to grant the state’s request for trial deposition. School Law: William Foote v. Manchester School District No. 2005-093 Hillsborough County Superior Court North September 7, 2005: Affirmed. The petitioners, two Bedford taxpayers, appeal the decision of the Superior Court denying their summary judgment motion and granting the cross-motions for summary judgment filed by the defendants, the Manchester School District (MSD) and the Bedford School District (BSD), regarding the three-year tuition contract between BSD and MSD. The petitioners argued that (1) the school board was required to receive voter approval before it could enter into the three-year agreement; that (2) absent prior voter approval, the agreement was invalid; and that (3) such invalidity entitles them to an injunction barring payment of the capital component of the tuition payment in the future and entitled BSD to restitution of capital expenses already paid. The New Hampshire Supreme Court held that (1) the authority to make contracts on behalf of the school district rests with the school board as the district’s governing body; (2) the petitioners’ reliance on R.S.A. 194:21-a and 194:21-b to support their contention that prior voter approval was required is misplaced because the statutes apply only to joint maintenance agreements, and the three-year agreement is clearly not a joint maintenance agreement, as it gives BSD no control over MSD high schools; and (3) in order to invalidate the results of the March 2004 meeting appropriating funding for the tuition payments, the petitions must prove either fraud which leaves the intent of the voter in doubt or irregularities in the conduct of the election of such a nature as to effect a result. The Court then held that the petitioners have failed to meet the burden, and that, when liberally construed in its entirety, the warrant article sufficiently described the situation for voters to make a rational decision. Attorney Discipline: Reiner’s Case No. LD-2005-001 New Hampshire Supreme Court September 7, 2005 The sole issue before the Court in this case was whether the Attorney Discipline Office (ADO) presented sufficient evidence to the Judicial Referee to justify the interim suspension of the respondent, Gary Reiner. Mr. Reiner was suspended from the practice of law following his indictment by a federal grand jury on several felony charges arising out of his alleged connection with prostitution and money laundering activities allegedly occurring at a heath club and massage parlor in Maine. The New Hampshire Supreme Court noted that it may impose an interim suspension pending the resolution of criminal charges pursuant to Rule 37(9)(i) when the committee proves it is both necessary for the protection of the public and for the preservation of the integrity of the legal profession. Though the standard of review for the referee’s factual findings is whether a reasonable person could have reached the same decision, the Court reviews de novo to determine whether the referee committed errors of law, and retains ultimate authority to determine whether suspension is necessary under Rule 37(16)(f). The Court then held that though the allegations against the respondent were quite serious, they did not pose a threat to the respondent’s present and future clients, and no additional evidence was offered to corroborate or supplement the allegations that the respondent poses a threat to the public. Accordingly, the Court found that suspension was not necessary for the protection of the public, but did impose certain reporting conditions upon the respondent. Landlord/Tenant: Aimco Properties, LLC d/b/a Royal Crest Estates v. Kasha DziewiszNo. 2004-747 Nashua District Court September 7, 2005: Reversed. The defendant appeals an order of the Nashua District Court granting the plaintiff possession of her apartment. On appeal, the plaintiff argued that (1) the letter concerning non-renewal of the lease did not constitute notice to quit; (2) even assuming the letter constituted a notice to quit, the plaintiff failed to allege good cause for the eviction in the notice; and (3) the plaintiff failed to serve her personally at her abode. The Court, deciding the matter on the Plaintiff’s second argument, held that the question to be answered is whether, under R.S.A. 540:2, the expiration of the lease constituted ‘other good cause,’ sufficient for the Defendant to evict the Plaintiff. The Court looked to the legislative intent of the statute, which was to give “greater flexibility to landlords to evict tenants for any good reason and at the same time protect tenants from arbitrarily and/or ill motivated evictions.” The Court reversed the Nashua District Court, holding, inter alia, that interpreting the term ‘other good cause’ as including the mere expiration of a lease would run contrary to this legislative intent, as it would allow landlords to arbitrarily evict tenants whose leases have expired, thereby denying them the precise protection that RSA 540:2, II was designed to provide. Nadeau, J. concurred specially. Negligence/Emotional Distress: Derek O’Donnell et. al. v. HCA Health Services of New Hampshire, Inc. No. 2004-422 Rockingham County Superior Court September 8, 2005: Affirmed in Part, Reversed in Part, Vacated in Part, and Remanded. The defendants appeal following a jury trial where the plaintiffs were awarded damages for medical malpractice, negligence, and negligent infliction of emotional distress, stemming from the labor and delivery of Ashley O’Donnell. The defendants cited the following as grounds for appeal, stating that the trial court erred by: (1) failing to set aside the plaintiff’s verdicts for bystander emotional distress damages; (2) allowing plaintiff’s expert to provide unreliable causation testimony; (3) failing to set aside the verdicts for failure of the jury to find comparative fault on the part of Melissa O’Donnell; (4) referring to potential liability insurance in its jury instructions; (5) failing to non-suit portions of the plaintiff’s case after the opening statement; and (6) failing to grant a mistrial after the plaintiff’s expert referred to Melissa O’Donnell’s Cesarean section when she later had another child. The New Hampshire Supreme Court held that (1) Under Corso, damages award to Melissa and Derek O’Donnell for emotional distress as bystanders should have been set aside as there was no evidence at trial, expert or otherwise, that the O’Donnells suffered delivery-related physical manifestations of emotional distress and that the issue of damages due Melissa O’Donnell not related to the emotional distress claim should be remanded for a new trial; (2) That Dr. Finklestein was qualified to testify because his expert opinion was derived from his personal experience, attendance at numerous obstetric seminars, review of journals and treatises over the course of the last 25 years and the fact that he was subject to cross examination during trial went to the weight and credibility of his testimony; (3) That a jury verdict will only be set aside if it is conclusively against the weight of the evidence (no reasonable jury could have reached it) or is the result of mistake, partiality, or corruption, and, in light of the evidence, a reasonable jury could have found no comparative fault on the part of Melissa O’Donnell; (4) That the purpose of jury instructions is to identify issues of material fact and to inform the jury of the appropriate standards of law by which to resolve them, and there was no substantial error such that it could have misled the jury regarding the applicable law; (5) that the plaintiffs discussed the issue of negligence, various elements of the defendants’ negligence, and their burden of proof in their opening statement, and thus the trial court did not err in denying their motion for nonsuit; and (6) that the New Hampshire Supreme Court will not overturn a trial court’s decision on a motion for mistrial absent an unsustainable exercise of discretion,. Any prejudice that might have resulted from the plaintiffs’ expert’s remark could have been cured by a jury instruction, which the defendants refused. Thus the trial court acted within its discretion by denying the motion for mistrial. Municipal/Taxation: Portsmouth Country Club v. Town of GreenlandNo. 2004-501 Rockingham County Superior Court September 21, 2005: Affirmed. The defendant Town of Greenland appeals a Superior Court ruling that the town cannot continue to tax golf holes on the plaintiff’s golf course as improvements in addition to taxing the underlying land as open space. The Portsmouth Country Club cross-appeals, challenging the refusal of the trial court to apply its ruling retroactively and to award the Club attorney’s fees. In the underlying case, 247 acres of the Portsmouth Country Club Property were, pursuant to R.S.A. 79-A:15-:21 (repealed and replaced by R.S.A. ch. 79-C), included in a discretionary easement deed whereby they were taxed as open space. The Town also separately assessed the golf holes located on those 247 acres. Between 1987 and 2000, the Club never challenged its tax bill. Only after a revaluation was completed in 2001 did the Club challenge the Town’s method of taxation. The Supreme Court affirmed the trial court’s order that the Town could not independently assess the golf holes and add that amount to the current use tax amount, reasoning that since the legislature delegated the authority to define ‘golf course’ to the current use advisory board, and they promulgated former Rev. 1204.1, defining ‘golf course’ to include tees, greens and similar components, such definition had the force and effect of law. With regard to the Club’s cross-appeal, the Court held that since the Club could have, through due diligence, informed itself about the Town’s assessing practices, and since the Town did not attempt to conceal such practices, there are no grounds to apply the Trial Court’s ruling retroactively for taxes paid by the Club from 1992 to 2000. Finally, the New Hampshire Supreme Court held that, since the issue of whether amenities such as tees and greens were taxable improvements to land had not been previously addressed by the Court, the issue was a fair and reasonable ground for litigation, and the Club was not entitled to attorney fees. Sovereign Immunity: Patrick J. Lorenz et. al. v. New Hampshire Administrative Office of the Courts et. al. No. 2004-552 Hillsborough County Superior Court – Northern District September 29, 2005: Affirmed (on different grounds). Judicial Branch employees working for the New Hampshire Superior Court brought a Petition for Declaratory Judgment seeking a determination that defendants be stopped from terminating their employment except for just cause. The superior court (1) rejected the plaintiffs’ claim for specific performance of an alleged oral contract; and (2) dismissed the action for failure to state a claim upon which relief may be granted. The plaintiff’s appealed. Following oral argument, the New Hampshire Supreme Court requested additional briefing on the issue of sovereign immunity, and subsequently held that the plaintiff’s claims were barred by sovereign immunity. In holding such, the Court reasoned that New Hampshire Courts lack subject matter jurisdiction to hear actions against the state unless the legislature has “prescribe[d] the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted.” Sousa v. State, 115 N.H. 340, 344 (1975). Though the plaintiffs argue that R.S.A. 491:8 confers jurisdiction upon the superior court “to enter judgment against the State of New Hampshire founded upon any express or implied contract with the State,” id., this statute applies solely to suits seeking money damages for breach of contract. Since the underlying suit sought specific performance rather than money damages, and since there was no other specific legislative consent for the suit, it was deemed by the New Hampshire Supreme Court to be barred under the doctrine of sovereign immunity, though the Court did state that its decision did not bar future action for damages consistent with R.S.A. 491:8. Pappagianis and Dunn, JJ., retired Superior Court Justices, specially assigned under R.S.A. 490:3, dissented (stating that they would grant the plaintiff’s second motion for restraining order and/or extended further stay of execution of career termination efforts and remand the case to the trial court with an order to permit the plaintiffs to conduct discovery within a reasonable time period to be set by the trial court). Criminal: State of New Hampshire v. Lucille Sanchez No. 2003-670 Hillsborough County Superior Court Northern District September 29, 2005: Affirmed. The defendant, convicted on counts of murder and conspiracy to commit murder, appeals the conviction on the grounds that the trial court (1) erred in failing to give the jury a curative instruction after the state’s closing argument in which the prosecutor commented that there was opportunity to murder the victim, as the upstairs tenants were not home; (2) erred in failing to instruct the jury on the legal principle of jury nullification; and (3) violated her double jeopardy rights by sentencing her on convictions for the separate crimes of first degree murder and conspiracy to commit first degree murder. The New Hampshire Supreme Court affirmed the trial court’s rulings, holding that (1) The trial court’s refusal to give an instruction is reviewed under the unsustainable exercise of discretion standard, where a demonstration must be made that the trial court’s decision was clearly untenable or unreasonable to the prejudice of his case. Since prosecutors may draw reasonable inferences from proven facts, and since the State neither misstated the evidence nor invited the jury to speculate about facts not in the record, no curative instruction was required. The Court also held that (2) Since the trial court gave the Wentworth instruction, which provides the equivalent of a jury nullification instruction, since the decision to give a more specific instruction lies within the sound discretion of the trial court, and since it is well-established that jury nullification is neither a right nor a defense recognized by law, the trial court’s refusal to give the nullification instruction was a sustainable exercise of discretion. Finally, the Court held that (3) the conspiracy and first-degree murder convictions did not violate double jeopardy because, regardless of whether the charges arose out of the same transaction, conspiring to commit a crime and actually committing a crime are two separate offenses. The Court noted that the act which the crime of conspiracy punishes is an agreement to commit or cause the commission of a crime. Thus, the defendant’s double jeopardy rights were not violated.
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