99-819 - October 12, 2001
James and Joan Coyle v. William Battles, Esq. & a

DALIANIS, J. The plaintiffs appeal the trial court’s order dismissing their declaratory judgment action and negligence claims and granting the defendants, William Battles and H. Edward McBurney’s Motion for Summary Judgment on the plaintiffs breach of contract and unjust enrichment claims. The supreme court affirmed.

The defendants represented the plaintiffs in foreclosure and bankruptcy proceedings from 1994 to April 1995. Plaintiffs stopped paying complaining the fees were excessive and retained new counsel for purposes of the fee dispute. In June of 1998, plaintiffs filed an action claiming the defendants’ fees were excessive. The trial court granted the defendants’ Motion to Dismiss the declaratory judgment and malpractice claims as well as the defendants’ Motion for Summary Judgment on the ground that the remaining claims were barred by the statute of limitations.

The supreme court held that the trial court’s dismissal of the declaratory judgment action was proper as the issues were identical to those in the breach of contract action and the declaratory judgment action provided no additional remedy. With respect to the breach of contract claim, the court held that the breach occurred when the plaintiffs paid the allegedly excessive fees, in January 1995 and that therefore, the June 12, 1998 claim was untimely. The court refused to apply the discovery rule in this case as the plaintiffs were aware of the alleged breach by May 1995 at the latest. The court further refused to adopt a continuing representation rule at the request of the plaintiffs which would extend a cause of action against an attorney so that the action would not accrue until the attorney ceased to represent the client.

99-813 - October 12, 2001
Franklin Lodge of Elks v. Sally Marcoux, & a.

BROCK, C.J. The petitioner (Lodge), appeals the trial court’s order granting the respondents’ Motion to Dismiss for lack of subject matter jurisdiction. The supreme court reversed and remanded.

The New Hampshire Human Rights Commission awarded each respondent damages and fined the Lodge for denying the respondents admission based upon their gender. The Lodge appealed to the superior court. The respondents then filed a Motion to Dismiss claiming that since the Lodge failed to provide the commission’s record within thirty days, pursuant to RSA 354-A:22, II, the court lacked subject matter jurisdiction. The trial court agreed and dismissed the case.

The supreme court held that the petitioner met the statutory deadline by filing its appeal within the thirty day appeal period and that the statute does not require the commission’s record to be filed within the same thirty day time period.

99-794 - October 12, 2001
Appeal of Conservation Law Foundation

NADEAU, J. The petitioner (CLF), appeals the New Hampshire Public Utilities Commission’s (PUC) dismissal of its petition to preserve a portion of a railroad line in Manchester. The supreme court affirmed.

The City of Manchester purchased a portion of a railroad line in order to extend the Manchester Airport. In doing so, it removed certain railroad tracks. CLF requested a hearing before the PUC to determine whether removal of the tracks was consistent with the public good. During pendency of the petition, Boston and Maine Corporation gave notice that it had fully abandoned the line. Thereafter, the PUC dismissed CLF’s petition finding that its jurisdiction was preempted by federal law. CLF contends that the PUC has jurisdiction to conduct a public hearing.

The supreme court was not persuaded by CLF’s argument that since Boston and Maine had already abandoned the line, the federal surface transportation board no longer had jurisdiction. The supreme court held that RSA 365:24-a regulates the removal of railroad tracks and is targeted toward interstate commerce, a federal concern. Therefore, the court held that RSA 365:24-a is preempted by federal law.

2000-253 - October 29, 2001
In the Matter of Maureen Morrill and Bruce Morrill

DUGGAN, J. The defendant appealed the trial court’s order granting a restraining order filed by the plaintiff, arguing that the trial court erred in refusing to allow the parties’ children to testify. The supreme court affirmed.

The plaintiff filed a domestic violence petition and motion in limine to preclude the parties’ children from testifying about the assault. The motion was granted by the trial court. The defendant argues that in not allowing the children to testify, the trial court abused its discretion and violated his right to due process of law.

The supreme court held that R.S.A. 173-B gives a trial court broad discretion in determining the admissibility of evidence. The trial court reviewed the statements the children had given to police and their testimony would therefore have been cumulative. As a result, the supreme court could not conclude the trial court abused its discretion. With respect to the defendant’s due process argument, the supreme court held that the defendant was allowed to present his case through cross examination, his own testimony and the children’s handwritten statements. Therefore, the court could not conclude that the defendant was denied his right to due process.

Justice Nadeau, with whom Chief Justice Brock joined, dissented, indicating that the record did not support any basis for the trial court’s exercise of discretion in preventing the children from testifying.

99-760 - October 29, 2001
Clarice Neumann v. Village of Winnipesaukee Timeshare Owners’ Association, Inc.

NADEAU, J. The plaintiff appeals the trial court’s order in her action challenging the voting practices of the defendant. The supreme court affirmed.

The defendant is a condominium development organized as a voluntary corporation. The plaintiff challenges the votes taken at certain meetings arguing the trial court erred in (1) exempting the defendant from R.S.A. 356-B:39; (2) denying the plaintiff a hearing to introduce evidence of proxy voting and solicitation abuses; (3) upholding the board’s authority to exercise votes of absent members; (4) upholding the voting of proxies to defeat a motion of present members to adjourn a meeting; and (5) ruling that the plaintiff did not have the right to possession of the defendant’s membership list.

The supreme court held that the trial court did not err in refusing to impose the requirements of R.S.A. 356-B:39, the statute that governs the use of proxies, on the defendant because the condominium units were created in 1974 and the statute applies only to condominium instruments recorded after September 10, 1977. The fact that the condominium units were changed to timeshare units in 1981 is irrelevant as the interests created in 1981 were not "units" under the statute, but were ownership rights in a unit.

The supreme court further agreed with the trial court that the plaintiff failed to allege specific instances of proxy abuse at the meetings. The supreme court also rejected the plaintiff’s claim that Article VI, section 5 of the defendant’s bylaws violates members’ rights to abstain from voting. According to the bylaws, where an owner is not present, his vote would go to the Board of Directors. The supreme court held that even if members had a right, they could exercise it by giving a proxy. The supreme court rejected the plaintiff’s claim that only members physically present could vote to adjourn a meeting, holding that persons giving a proxy were present for the purpose of voting to adjourn a meeting.

Lastly, the supreme court found no abuse in the trial court’s ruling denying the plaintiff complete access to the membership list. The trial court, balancing the competing interests on access to the records and privacy, ordered that the plaintiff could communicate with other members by delivering mail to one of the directors who was required to deliver same to the members within 15 days.

99-644 - October 29, 2001
Appeal of the State of New Hampshire
(New Hampshire Public Employee Labor Relations Board)

NADEAU, J. The State appeals the decision of the public employee labor relations board finding that the State’s adoption of administrative rule changes constituted an unfair labor practice. The supreme court vacated and remanded.

The State modified the administrative rule governing floating holidays and bonus leave to provide that no annual leave, sick leave, bonus leave or floating holidays shall be accumulated during a leave of absence without pay. The State Employee’s Association of New Hampshire, Inc. (SEA) filed a complaint claiming the State’s rule change affected procedures and did not give the SEA the opportunity to negotiate. The PELRB found that the State had committed unfair labor practices in refusing the negotiate in good faith, breaching the collective bargaining agreement and adopting a rule that violated the collective bargaining agreement. It found that arbitrators decisions in 1992 and 1993 interpreting identical benefits decisions were binding under the doctrine of the law of contract.

The supreme court held that the PELRB lacked jurisdiction to interpret whether the terms of the collective bargaining agreement mandated that the arbitration awards be considered the law of contract. The court stated that absent a provision in the collective bargaining agreement, the PELRB should not interpret these agreements to determine whether arbitral awards become the law of contract. To allow the PELRB to do so, would thwart the collective bargaining process by incorporating terms and conditions into an agreement which were not bargained for. Further, the court held that the collective bargaining process is not intended to be the result of the employer negotiating with a single employee.

2000-551 - November 1, 2001
N.A.P.P. Realty Trust v. CC Enterprises A/K/A CC Multi-Media Enterprises, Inc. & a.

DUGGAN, J. The defendant appeals the trial court’s order ruling it violated the terms of the lease by using the premises to sell sexually explicit videos. The plaintiff cross-appeals the trial court’s denial of its request to find that it had other good cause to evict the defendant. The supreme court vacates and remands.

The parties entered into a lease agreement for the purpose of the defendant operating a Video Multi-Media store. The lease did not expressly prohibit the sale of sexually explicit videos; however, the plaintiff sought to evict the defendant according to a section of the lease which provides that "no trade or occupation shall be conducted . . . which will be unlawful, improper, noisy, or offensive or contrary to any. . . ordinance in force in the Town of Hudson " The trial court found that the business was offensive.

The supreme court held that an objective standard must be applied in considering the parties’ intent by examining the contract as a whole. Because it could not determine on the record what the parties should have reasonably expected the term "offensive" to mean, the supreme court remanded the case to the trial court. With respect to the plaintiff’s cross-appeal, the supreme court held that the statute relied on by the plaintiff in claiming it had other good cause to evict the defendant, R.S.A. 540:2, II (e) (1997), did not apply to the plaintiff’s property.

99-677 - November 1, 2001
Town of Nottingham v. Diane Newman, & a.

BROCK, C.J. The defendants appeal the trial court’s order awarding civil penalties and attorney’s fees to the plaintiff contending that R.S.A. 676:17 is unconstitutional in that it deprived them of access to the courts and that the trial court abused its discretion. The supreme court affirmed.

The Town of Nottingham has an ordinance that provides when more than one dwelling unit is located on a single tract of land, each unit must satisfy all the requirements of ordinance and subdivision regulations. The defendants had two mobile homes on their property and obtained a permit to replace one mobile home with a house. The town granted the permit with the condition that the mobile homes were to be removed prior to issuance of the occupancy permit. The defendants agreed and Mrs. Newman signed an agreement indicating that if she failed to comply, she would be responsible for the costs associated with the town removing them. The defendants failed to remove the mobile homes and the town sought injunctive relief. The trial court initially denied the town’s petition and allowed the defendants an opportunity to seek a subdivision of their property. Ultimately, the mobile homes were removed after the planning and zoning boards refused to allow subdivision; however, the town continued to seek penalties and the trial court awarded civil penalties and attorney’s fees.

The supreme court held that the defendants were not denied access to the court and were given the opportunity from the outset of the dispute to contest the town’s position that they violated the ordinance or building permit. The defendants had the opportunity to contest the civil penalties and the trial court assessed the fine at a rate considerably lower than that requested by the town. The supreme court further held that the defendants were not denied due process as they were put on notice that they would be subject to civil penalties if they continued to violate the ordinance. Lastly, the supreme court found that the trial court did not abuse its discretion in awarding attorney’s fees because Mrs. Newman agreed to take responsibility for all legal costs associated with the town’s enforcement of the agreement.

99-565 - November 1, 2001
New Canaan Bank & Trust v. Steven S. Pfeffer

NADEAU, J. The plaintiff appeals the trial court’s order ruling that its bad faith conduct precluded it from recovering the balance of a promissory note from the defendant. The defendant cross-appeals arguing that the trial court erred in rejecting his equitable estoppel defense. The supreme court affirmed the trial court’s decision based upon the defendant’s estoppel defense.

The defendant and his partner, Madigan, signed a promissory note in favor of the plaintiff to finance their law firm. When the law firm dissolved, it triggered a default on the note and the bank issued a demand letter for payment in full. Bank officials advised that if the defendant paid one-half the balance, it would secure the balance from his former partner. The defendant complied; however, the bank then made an agreement with Madigan that it would not seek repayment from him so long as he made interest payments. Madigan stopped paying and the bank demanded payment from the defendant. The trial court found in favor of the defendant, but rejected his equitable estoppel defense.

Finding that the trial court erroneously characterized the defendant’s estoppel defense, the supreme court applied the elements of equitable estoppel to the factual findings of the trial court. It found that the trial court’s findings established that the bank made a representation or concealment of material facts with knowledge of those facts in advising that if the defendant paid half the balance, it would focus its collection efforts on Madigan. The supreme court further found that the second estoppel element was satisfied in that the defendant was ignorant of the bank’s failure to attempt to collect from Madigan. The bank never informed the defendant of its agreement with Madigan or of loan status.

With respect to the third element, the supreme court held that the trial court’s findings clearly established that the bank’s representations were made with the intent to acquire from the defendant an immediate payment of one half the note. The supreme court further found that the fourth element had been satisfied in that the defendant was injured as a result of his reliance on the bank’s representations. The bank’s assurances caused the defendant not to pursue Madigan on his own and, had the bank sought to collect from Madigan initially, Madigan would have had sufficient assets to satisfy the balance. Lastly, the supreme court found that the defendant exercised due diligence and reasonably relied on the bank’s assurances.

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