Family Law

In the Matter of Jeffrey G. and Janette P., No. 2004-738

January 27, 2006:  Reversed and Remanded

• Whether the superior court had jurisdiction to grant custody of children to the children’s aunt.

The superior court’s jurisdiction to award custody is bound by RSA 458:17.  The superior court does not have authority, in a custody determination, to award custody to any third party not specified in the statute.  Thus, third-party custody may only be awarded to grandparents or stepparents, not to other relatives.

In the Matter of Rosemary Sculley and Thomas M. Sculley, Sr., No. 2005-274

January 18, 2006:  Vacated and Remanded

• Whether the superior court has jurisdiction to enforce a visitation order entered as part of a divorce decree also issued by that court when a child is over eighteen at the time enforcement is sought and has been appointed a guardian in probate court.

The superior court erroneously ordered defendant to comply with the visitation provision in a divorce decree previously issued by that court because the child in question had reached the age of eighteen.  The superior court also lacked jurisdiction to issue orders related to visitation of the now-adult child because the child had been appointed a guardian in probate court.  Because a guardian had been appointed, probate court had exclusive jurisdiction to consider issues related to the child.

Sovereign Standing

State of New Hampshire  v. City of Dover, No. 2005-552

January 18, 2006:  Affirmed

• Whether the State may assert parens patriae standing to bring actions for MTBE contamination of statewide water supplies thereby forcing cities’ suits seeking redress for MTBE contamination to yield to the State suit.

The State has parens patriae standing if it alleges injury to a quasi sovereign interest and injury to a substantial segment of its population.  The State has a quasi sovereign interest in protecting the heath of its residents insofar as it is affected by the State’s water supply.  The State has successfully alleged injury to a substantial segment of its population by the presence of MTBE in a significant portion of the statewide water supply.  The cities challenging the State’s parens patriae- standing bear the burden of proving that they cannot obtain complete relief through the State’s suit.  The cities have not demonstrated that they cannot obtain full relief through the State’s action.  The maintenance of an exclusive State suit does not conflict with state statutes permitting municipalities to sue for MTBE contamination.  Finally, requiring the cities to yield does not deny them a certain and complete remedy in violation of Part I, article 14 of the State Constitution because they have not demonstrated that the State cannot adequately represent their interests.

Tax Abatement

H. Boone Porter v. Town of Sandwich, No. 2005-244

January 18, 2006:  Reversed and Remanded

• Whether a plaintiff seeking enforcement of an agreement with a town made pursuant to a statute authorizing such agreements and according to which plaintiff’s taxes would be reduced must follow the statutorily prescribed procedure for filing a claim for tax abatement.

The trial court erroneously held that it did not have subject matter jurisdiction to hear plaintiffs’ claims because plaintiffs did not assert that claim in accordance with statutorily prescribed tax abatement procedures.  Tax abatement proceedings are properly initiated to address issues of proportionally appropriate taxation and claims of inability to pay.  Questions of law related to tax liability need not necessarily be raised through statutorily prescribed abatement procedures.  Because plaintiffs raised issues of statutory and contractual law, they did not need to follow abatement procedures, and the trial court had jurisdiction to consider their suit.

Property

Ryan James Realty, LLC v. Villages at Chester Condominium Association, No. 2004-689 January 27, 2006:  Reversed and Remanded.

• Whether title to disputed land is held by a condominium association when its original developer declared its desire to develop the land but did not explicitly submit the parcel to the condominium or by a subsequent transferee.

The trial court erroneously ruled that the condominium association owns the disputed land.  Because only a portion of land was explicitly submitted to the condominium by the declarant, the rest of the land was not deemed submitted despite the declarant’s explicit desire to eventually develop all of the land.  Declarant’s compliance with procedures for obtaining subdivision approval before creating an expandable condominium has no bearing on title to land. 

Insurance

Annette D’Amour v. Amica Mutual Insurance Company, No. 2005-187

January 18, 2006:  Affirmed.

• Whether medical payments made by a motorist who was injured after she stepped out of her car and fell while walking alongside her car in a parking lot are covered by her automobile insurance policy.

Plaintiff was not “occupying” her vehicle as required for coverage under her insurance policy because she was not “engaged in an activity essential to the use of the vehicle” when she fell.

Legal Malpractice

Robert Therrien v. Mark F. Sullivan, No. 2005-290

January 27, 2006

• Whether a cause of action for criminal legal malpractice accrues when the criminal defendant learns of the attorney’s alleged negligence and resulting harm or when the defendant obtains collateral relief from his or her criminal conviction.

An action for legal malpractice alleging a false criminal conviction requires proof of, inter alia, the claimant’s actual innocence.   A criminal defendant’s claim for legal malpractice does not accrue until he or she obtains post-conviction relief. 

Zoning

Stanley Colla v. Town of Hanover, No. 2005-217 

January 27, 2006:  Reversed and Remanded

• Whether plaintiffs’ appeal of a zoning board’s decision was properly dismissed for being impermissibly broad and non-specific where the appeal stated the board’s decisions, alleged that those decisions were unreasonable, and incorporated arguments previously made in the plaintiffs’ unsuccessful motion for reconsideration.

Plaintiffs’ motion for reconsideration fully set forth every ground on which they sought reconsideration because it stated the zoning board’s decisions, the grounds for those decisions, and the legal grounds on which it sought reconsideration of those decisions.  Because plaintiffs’ motion for reconsideration was sufficiently specific and detailed, plaintiffs’ appeal, which incorporated the motion for reconsideration by reference, was also sufficient.

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