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Bar News - January 18, 2002 NH Supreme Court Opinion Summaries EMINENT DOMAIN - OCCASION TO LAY OUT ROADWAYS Rodgers Development Company & a. v. Town of Tilton & a. DUGGAN, J. The plaintiff, Rodgers Development Company (Rodgers), and the intervenor, Infinity Sherwood Properties, L.P. (Infinity) appeal the trial court’s order affirming the decision of the Tilton Board of Selectmen conditionally laying out roads across their property. The supreme court affirmed. Rodgers, Infinity and Market Basket own abutting property in a commercial district. Market Basket petitioned the selectmen for conditional layout of two roads on rights-of-way over land owned by Rodgers and Infinity. The selectmen granted the conditional layout. Rodgers and Infinity appealed to the superior court which affirmed. They now argue that the trial court erred in improperly concluding that there was "occasion" to lay out the roads, failing to consider the case de novo and unconstitutionally taking their property for the benefit of a private party. The supreme court used a two step analysis of balancing the public interest against the rights of the landowners and balancing the public interest against the burden it imposes on the town. The supreme court found that the layout was not proposed for mere convenience but that it was not an exigent need either; however, it found that the landowners would actually benefit from the layout and that this balance weighed in favor of the layout. Considering the second step, the supreme court held that the trial court did not err in finding that the layout would not pose any burden to the town. With respect to the plaintiffs’ remaining claims, the supreme court held that de novo review was the proper standard and that the taking of the plaintiff’s property was constitutional because the taking would benefit the public. FIRST DEGREE MURDER - CONFESSION State of New Hampshire v. Edward B. Pehowic NADEAU, J. The defendant appeals his conviction for first degree murder, arguing that the trial court erred when it failed to suppress his confession. The supreme court affirmed. While the defendant was being held at the Strafford County House of Corrections for his assault on Patricia Landry, Sergeant Tucker of the Portsmouth Police Department went to the jail to question him about the murder of Carol Caswell. The defendant said that he would not talk without his attorney present. Thereafter, the defendant’s attorney, who was representing him on the Landry charges, advised Sergeant Tucker that the defendant did not wish to speak. Later that month, Detective Stinglen of the Dover Police Department went to the jail to question the defendant about the murder of Sheila Holmes. The defendant did not confess to the murder of Sheila Holmes; however, in a later meeting with Sergeant Tucker, he did confess to the murder of Carol Caswell. The defendant argued that at the initial meetings with Sergeant Tucker, he had invoked his Miranda rights and therefore, his confession should have been suppressed. The trial court found that the defendant was not in custody when he invoked his rights and therefore, his invocation was ineffective. The supreme court held that when an individual is incarcerated for an offense unrelated to the subject of his interrogation, custody for Miranda purposes occurs when there is some act or circumstance that placed additional limitations on the prisoner. Since the defendant did not show that there were any additional limitations placed on him during the interrogation, the supreme court concluded that he was not in custody when he made his confession. DIVORCE - PROPERTY DIVISION - ANNUITY - PERSONAL INJURY SETTLEMENT In the Matter of Patricia and Warren Preston DALIANIS, J. The respondent, Warren Preston, appeals the trial court’s order approving the marital master’s recommendation awarding the petitioner, Patricia Preston, one-half interest in an annuity issued to the respondent in settlement of a personal injury claim. The supreme court affirmed. The parties were married in 1963. In 1988, the respondent was injured in an accident and a settlement was reached whereby he would receive payments each month for 120 months, beginning November 2000. The parties separated in 1996 and the trial court awarded one-half interest in the annuity to the petitioner, finding it was marital property. The supreme court adopted a mechanistic approach, which provides that regardless of the underlying purpose of the award or loss it is meant to replace, if the award or settlement was acquired during marriage, it is deemed marital property. The supreme court overruled its decision in Fabich v. Fabich, 144 N.H. 577 (1999), where the court held that certain disability benefits were the spouse’s separate property because they compensated the spouse for lost earning capacity and personal suffering. The supreme court rejected the respondent’s argument that since the statute did not specifically list annuities as being subject to equitable distribution, they are not marital property. PRETERMITTED HEIR STATUTE - TRUST - WILL EQUIVALENT Pamela Robbins & a. v. Bertha G. Johnson & a. DALIANIS, J. The plaintiffs, Pamela and Michael Robbins, are the children of Elizabeth Robbins. The defendants are the sister and niece of Elizabeth Robbins. The plaintiffs appeal the probate court’s order finding that "The Elizabeth C. Robbins Revocable Trust" was valid and nontestamentary. The supreme court affirmed. The plaintiffs argue that the trust is a testamentary trust and therefore, the pretermitted heir statute applies because it is the functional equivalent of a will. The supreme court held that the plaintiffs’ focus on whether the trust was testamentary or inter vivos was misplaced and that the issue was whether the pretermitted heir statute applied to trusts. The supreme court, however, declined to rule on the issue as the statute, on its case, applies to wills, not to trusts. Justice Duggan provided a concurring opinion, in which Chief Justice Brock joined, arguing that the plaintiffs’ claim that the trust was not valid should be addressed. PLANNING BOARD - ZONING BOARD - APPEALS Joseph F. Hoffman v. Town of Gilford & a. DUGGAN, J. The plaintiff appeals the trial court’s decision dismissing a portion of his complaint challenging a decision by the Town of Gilford Planning Board. The supreme court affirmed. Fay’s Boat Yard submitted a plan to the planning board for improvements to its marina. The plan was approved and the plaintiff, an abutter, appealed to the Gilford Zoning Board contending that the plan failed to comport with certain planning and zoning ordinances. The zoning board, considering only the zoning issues, affirmed the decision of the planning board. The plaintiff then appealed to the superior court which dismissed the planning issues as not having been filed within the 30 day time period. The plaintiff then filed an interlocutory appeal arguing that a person aggrieved by the planning board’s decision, can first appeal the zoning issues to the zoning board and then appeal both the zoning and planning issues to the superior court. The supreme court held that the statutes do not provide for a different review process when a planning board decision resolved both zoning and planning issues. The aggrieved party must still take planning issues to the superior court within 30 days. Since the plaintiff did not appeal the planning issues for four months, his appeal was untimely. TOWN ORDINANCE - PUBLIC SEWERS - WAIVER Richard E. Kennedy v. Town of Sunapee & a. BRODERICK, J. The plaintiff appeals the trial court’s order affirming the decision of the Town of Sunapee Water and Sewer Commission requiring him to connect to a public sewer system. The supreme court affirmed. The Town of Sunapee has an ordinance requiring occupied buildings within 300 feet of a public sewer line to be connected to it. The distance was selected to protect Lake Sunapee from pollution. When the plaintiff moved to Sunapee, he refused to connect to the public sewer, even though he was within 300 feet. He filed for a waiver with the town, which was refused. He then filed a petition for writ of certiorari in superior court arguing that the town ordinance was unconstitutional and that R.S.A. 147:8 was unconstitutional in not providing for a procedure whereby property owners could seek a waiver at the State level. The supreme court found that the lack of statutory provision allowing a property owner to seek a waiver at the state level is not arbitrary or unreasonable. It found that the proper disposal of sewage is an interest shared by the entire community and that it should not be undermined by the failure to conform to legislation aimed at promoting that interest. Further, it found that R.S.A. 147:8 was constitutional, especially since the 1992 amendment lessened the restriction upon private parties in providing that parties could pursue a waiver at the discretion of the town. The supreme court further held that, when balanced against the public benefit of protecting the lake’s water quality and the proper disposal of sewage, the harm to the plaintiff and his property is not enough to render the ordinance unconstitutional. PAYMENT IN LIEU OF TAXES AGREEMENT - RETROSPECTIVE LAWS Lower Village Hydroelectric Associates, L.P. v. City of Claremont DUGGAN, J. The defendant (city), appeals the trial court’s order finding that Laws 1997, chapter 274 violates Part 1, Article 23 of the New Hampshire Constitution and Article 1, Section 10 of the United States Constitution to the extent it voids the PILOT agreement. The supreme court affirmed. The plaintiff, LVHA is the owner of a hydroelectric generating facility. The city sought to enter a PILOT agreement with LVHA whereby it would receive a percentage of its gross revenues in lieu of taxes. The final PILOT agreement was never drawn up and thereafter, Laws 1997, Chapter 274 was enacted which repealed the authority of municipalities to enter into PILOT agreements. The city then taxed LVHA; however, LVHA only paid that which was due under the PILOT agreement. The supreme court found that there was a contract and that the facts provided adequate evidence that the city manifested its intent to be bound to the material terms of the PILOT agreement, even though the final draft had not been drawn up. The supreme court further found that Laws 1997, chapter 274, to the extent it abrogated the PILOT agreement, violated Part 1, Article 12 of the New Hampshire Constitution. The supreme court based its holding on the fact that a contract existed between the parties that was substantially impaired by chapter 274 and that the city’s only justification for the enactment of chapter 274 was to raise revenue. The court found that the legislature has policy alternatives for raising revenue other than the breaching of its contractual responsibilities. CRIMINAL PROCEDURE - SUFFICIENCY OF EVIDENCE -LIMITED CROSS-EXAMINATION The State of New Hampshire v. Peter Dugas DUGGAN, J. The defendant appeals his conviction of arson arguing that the trial court erred in: (1) admitting evidence of his statement; (2) excluding certain evidence; and (3) supplying jurors with transcripts and audiotapes of his statements and a videotape of himself. The supreme court affirmed. The defendant was convicted by jury of setting fire to Dugas Superette, a grocery business owned by his father. The defendant submitted to two interviews with the police. During the first interview, the defendant explained that he had worked at the store all day and left around 10:00 p.m. During the second interview, the defendant was confronted with videotaped evidence that he had reentered the store the night of the fire. The defendant denied lighting the fire. These statements were given to the jurors during deliberations. The supreme court held that the evidence was sufficient to support a conviction where the defendant testified that he was the last person to leave the store and that he had locked the store and where the fire fighters testified that there was no sign of forcible entry. Further, there was evidence that traces of ignitable fluids were found near the fire. The supreme court concluded that the evidence excluded all rational conclusions other than the conclusion that the defendant started the fire. With respect to the defendant’s argument that the portion of his statement which had not been turned over to him until days before the trial violated his due process rights, the supreme court held that since the statement did not contain any new information, the defendant was not unreasonably prejudiced by the delay. The supreme court further held that the trial court did not err in precluding the defendant from eliciting testimony regarding a former employee’s ongoing trial. The defendant sought to show that the former employee, Kulas, had a motive to start the fire because he was facing a long prison sentence and his time for settling old scores was running short. The supreme court held that, while this evidence may be relevant, it had low probative value. Further, introduction of this evidence may have led the jury to believe that just because Kulas was on trial in another matter, he probably committed this crime as well. Lastly, the supreme court held that the videotapes and audiotapes are tangible evidence which may be made available to the jurors during deliberation. ANIMAL CRUELTY - RESTITUTION - DOUBLE RECOVERY The State of New Hampshire v. Bettina L. Burr DALIANIS, J. The defendant appeals the trial court’s order requiring her to pay restitution to the Cocheco Valley Humane Society (CVHS) in connection with twenty counts of animal cruelty. The supreme court affirmed in part and vacated and remanded in part. The defendant pled guilty to twenty counts of animal cruelty resulting from her treatment of twenty dogs which were rescued by the CVHS. The court ordered the defendant to pay restitution to the CVHS and the defendant moved to dismiss arguing that the CVHS had already received donations on behalf of the defendant which exceeded the restitution order. The supreme court held that nothing in the restitution statute evinces the legislature’s intent to preclude victims from receiving both restitution and voluntary public donations. Voluntary public donations are not compensation within the meaning of the statute and to hold otherwise would thwart the purpose of the restitution statute, which is to rehabilitate the offender. The supreme court vacated the potion of the restitution order requiring the defendant to reimburse the salaries of the CVHS workers in addition to reimbursing the cost of each dog’s boarding fee. The court found that these awards were duplicative. |
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