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Bar News - July 5, 2002 NH Supreme Court Opinion Summaries Editor's Note: The preparation of summaries of Supreme Court decisions was interrupted, with summaries for cases through November 2001 being the last published, in the March 22, 2002 issue of Bar News. Summaries will resume in a future issue of Bar News, starting with cases decided in March 2002. To catch up with decisions issued from December through February, Bar News will publish the first paragraph of the decision, except in cases where additional detail is necessary. WORKERS COMP/ATTORNEY'S FEES/REDUCTION OF AWARD NADEAU, J. Plaintiffs James Bianco and Eric Falkenham appeal from a Superior Court (Conboy, J.) order interpreting RSA 491:22-b (1997) as providing discretion to reduce an award of costs and attorney's fees. In addition, the defendant, the Home Insurance Company, objects to a judicial referee's recommendation for the award of supreme court costs and attorney's fees. We affirm the trial court's finding that the fees were not severable and that other charges, for overhead and the filing of a motion, were not reimbursable. We reverse the trial court's decision to reduce the fees by thirty percent. We adopt the recommendation of the judicial referee awarding fees and costs. DOMESTIC VIOLENCE/CONTEMPT BRODERICK, J. The defendant, William J. O'Connell, appeals his conviction for indirect criminal contempt. We reverse and remand. In late November 1999, Attorney Susannah Colt, the director of New Hampshire's Legal Assistance Domestic Violence Project, filed an appearance in the contempt case on behalf of Rogowicz. Colt's essential role, however, was to prosecute the defendant for criminal contempt. The record is not clear on how Colt assumed the role of prosecutor, but a pleading she filed alleges that the family division requested her appearance. In this case, Rogowicz was the beneficiary of the protective order allegedly violated by the defendant. Colt appeared on behalf of Rogowicz, and clearly represented her interests, while prosecuting the defendant for criminal contempt based upon a violation of the protective order. Further, the potential for the private interests of Rogowicz to influence the discharge of Colt's prosecutorial duties was readily apparent. Accordingly, Colt should have been disqualified. SUMMARY JUDGEMENT/NEGLIGENCE Dalianis, J. The plaintiffs, Charles and Jean Dean, appeal from an order of the Superior Court (Abramson, J.) granting summary judgment to the defendants, John MacDonald d/b/a Lee USA Speedway and National Association for Stock Car Auto Racing, Inc., upon Mr. Dean's negligence claim. We affirm and remand. WORKERS COMP/PAYMENTS BrodericK, J. The petitioner, Peggy Denton, appeals a decision of the New Hampshire Compensation Appeals Board (board) denying her request for interest on medical bills, except those she personally paid. We reverse and remand. ZONING/WATER RIGHTS Duggan, J. The plaintiff, Old Street Barn, LLC, appeals an order of the Superior Court (Lynn, J.) affirming the decision of the Town of Peterborough Zoning Board of Adjustment (ZBA) denying the plaintiff's request to increase the amount of water transported from its property. We affirm. MEDICAL MALPRACTICE/EVIDENCE Duggan, J. In this medical malpractice case, the defendants, Frisbee Memorial Hospital and Geoffrey Stein, M.D., appeal from a jury verdict in favor of the plaintiff, Agnes Hodgdon. They argue that the Trial Court (T. Nadeau, J.) erred in: (1) allowing an ophthalmologist to testify as to the standard of care for an emergency room physician; (2) ruling that there was sufficient evidence to prove that Dr. Stein's alleged negligence was the proximate cause of the plaintiff's injury; (3) admitting into evidence a chart showing excerpts of a witness's testimony written by plaintiff's counsel as he examined the witness; (4) admitting into evidence certain documents from Dr. Stein's personnel file; and (5) allowing plaintiff's counsel in closing argument to say that the jury could find the doctor negligent for his failure to supervise the physician's assistant working with him in the emergency room. We affirm. EX PARTE ORDER/DOMESTIC VIOLENCE BROCK, C.J. The defendant, Franklin B. Fillmore, Jr., appeals from an order of the Goffstown District Court (Lawrence, J.) granting a protective order to the plaintiff, Diane Fillmore. He raises two issues on appeal: 1) that there were insufficient allegations of fact to support the issuance of an ex parte temporary protective order to the plaintiff; and 2) that the court erred in concluding, after hearing, that the plaintiff was abused within the meaning of RSA chapter 173-B (Supp. 2000). For the reasons that follow, we vacate the orders. ESTATE/REMOVAL OF EXECUTOR Duggan, J. The petitioner, Joseph Heald, was the executor and co-beneficiary of an estate. His appeal raises two issues: (1) whether the Rockingham County Probate Court (O'Neill, J.) erred by removing him as executor; and (2) whether the Superior Court (Abramson, J.) erred in ruling that he had no constitutional or statutory right to a jury trial on his challenge to the probate court's order requiring him to reimburse the estate. We dismiss the appeal from the probate court, and otherwise affirm. WORKERS COMP/PERMANENT IMPAIRMENT NADEAU, J. The petitioner, Patricia Fournier, appeals a decision of the compensation appeals board (CAB) declining to award her an additional ten percent permanent impairment to her right wrist. We reverse and remand. ROCKINGHAM NADEAU, J. The defendant, Kevin Lambert, was convicted by a jury of four counts of felonious sexual assault. See RSA 632-A:3, II (Supp. 2000). The Superior Court (Abramson, J.) sentenced him to a combined term of five to ten years in prison, and a consecutive term of three and one-half to seven years, suspended. On appeal, the defendant argues that the trial court erroneously considered unsubstantiated allegations of other crimes when sentencing him. We affirm. WHISTLEBLOWERS ACT Duggan, J. The petitioner, Mary Ellen Montplaisir, appeals a decision by the New Hampshire Department of Labor (DOL) that she failed to prove that the defendant, Rosa Roofeh, M.D., P.C. (Dr. Roofeh), violated the Whistleblowers' Protection Act (Act), RSA 275-E:2, I(b) (1999). On appeal, Montplaisir argues the DOL erred when it failed to apply a mixed motive analysis on the evidence presented. We vacate and remand. INTERLOCUTORY APPEAL/PLANNING BOARD Duggan, J. In this interlocutory appeal, the plaintiff, Joseph F. Hoffman, appeals the decision of the Superior Court (Smukler, J.) dismissing a portion of his complaint challenging a decision by the Town of Gilford Planning Board (planning board). We affirm. On a subsequent motion for clarification, the court modifies the slip opinion dated October 9, 2001, as follows: The paragraph on page 3 of the slip opinion that begins with the words "The statutes do not" and ends with the words "to the superior court, and the following paragraph that begins on page 3 with the words "This procedural distinction" and ends on page 4 with the citation to Storms v. Town of Eaton, are deleted and replaced by the following single paragraph: The statutes do not, on their face, provide for a different review process when a planning board decision resolves both zoning and planning issues. The aggrieved party may still take zoning issues to the ZBA and planning issues to superior court. This procedural distinction fits the different levels of review for zoning and planning issues. For pure planning issues, there is only a single level of review and even that review is discretionary. See Daboul v. Town of Hampton, 124 N.H. 307, 308-09 (1983); Price v. Planning Board, 120 N.H. 481, 484-86 (1980). In contrast, for issues involving the interpretation or application of a zoning ordinance, there are two levels of review. At the local level, the ZBA reviews the decision to ensure uniform application of local zoning laws. See Dube v. Town of Hudson, 140 N.H. 135, 137-38 (1995). Then, there is a statutory right to have the superior court review the ZBA decision. See, e.g., Storms v. Town of Eaton, 131 N.H. 50, 51-52 (1988). In all other respects, the motion for clarification, the motion for rehearing and reconsideration, and the motion to re-consider decision are denied. DUI/MOTION TO SUPPRESS Brock, C.J. The defendant, Heidi Lee Seavey, was convicted after a bench trial in the Auburn District Court (LeFrancois, J.) of driving while intoxicated second offense (DWI), RSA 265:82(b) (1993 & Supp. 2000), and conduct after an accident, RSA 264:25 (1993 & Supp. 2000). On appeal, she argues that the trial court erred in denying her motion to suppress. We reverse and remand. AGGRAVATED SEXUAL ASSAULT/DOUBLE JEOPARDY Broderick, J. The defendant, Christopher Richard, appeals his convictions on ten pattern counts of aggravated felonious sexual assault (AFSA) involving two young victims. See RSA 632-A:2, III (Supp. 2000). He argues that the Superior Court (Brennan, J.) erred by permitting the State to seek convictions upon multiple pattern indictments for assaults committed against a single victim during a common time frame, violating his right to be free from double jeopardy under the United States Constitution. We affirm. MIRANDA RIGHTS/SEXUAL ASSAULT NADEAU, J. The defendant, Herbert Barnett, appeals his convictions in Superior Court (Hollman, J.) on one count of felonious sexual assault, see RSA 632-A:3 (Supp. 2000), and one count of sexual assault, see RSA 632-A:4 (1996). We reverse and remand. On February 4, 2002, the court granted the state's motion for reconsideration in limited part.. In the first sentence of the final paragraph on page 3 of the slip opinion, the word "custodial" is replaced by the word "post-Miranda." The first sentence in the final paragraph on page 3 thus reads: "To avoid the inequity inherent in admitting into evidence the selective recording of a post-Miranda interrogation, we establish the following rule: In order to admit into evidence the taped recording of an interrogation, which occurs after Miranda rights are given, the recording must be complete." In all other respects, the motion for reconsideration is denied. PERMIT TO EXCAVATE Duggan, J. This is an appeal by the plaintiff, NBAC Corp. (NBAC), from an order of the Superior Court (Perkins, J.) affirming the Town of Weare (town) Board of Selectmen's (selectmen) denial of NBAC's application to conduct sand and gravel excavation. We affirm. WORKERS COMP/CHEMICAL SENSITIVITY NADEAU, J. The petitioner, Lockheed Martin Corporation, appeals a decision of the New Hampshire Compensation Appeals Board (CAB) awarding the respondent, Catherine House, workers' compensation benefits for multiple chemical sensitivity syndrome (MCSS). We reverse. BROCK, C.J., and BRODERICK, J., dissenting. Because the board's findings in this case are supported by the evidence and are not erroneous as a matter of law, we respectfully dissent. ZONING/TIMELY APPEAL Brock, C.J. The plaintiff, Thomas Morgenstern, appeals orders of the Superior Court (Murphy, J.) declaring section 601 of the Rye Zoning Ordinance valid on its face and as applied to his property. The plaintiff also appeals the court's order upholding the Town of Rye Zoning Board of Adjustment's (ZBA) decision not to hear his revised application for approval to build a house on his lot. The defendant, Town of Rye (town), cross-appeals, arguing that the plaintiff's action should have been dismissed because the plaintiff failed to timely appeal adverse decisions of the ZBA. We vacate and remand. INSURANCE COVERAGE Broderick, J. The defendant, Hartford Insurance Company (Hartford), appeals an order of the Superior Court (Brennan, J.) declaring that it provides primary liability insurance coverage under a commercial auto policy for damages caused in a May 1997 automobile accident in Florida. We affirm. WORKERS COMP/ LOST TIME Dalianis, J. In these consolidated cases, the petitioners, Eleanor Gagnon and Lucille Wiemer, appeal decisions of the New Hampshire Compensation Appeals Board (board) denying them indemnity benefits for time lost from work while attending medical appointments. We affirm. REAL ESTATE/ATTORNEY LIABILITY NADEAU, J. The plaintiffs, Alexander MacMillan, Trustee of the Dickson Family Irrevocable Trust, and Tracy and Patricia Dickson, appeal, and defendant Brackett L. Scheffy cross-appeals, rulings of the Superior Court (Manias, J.) in this action arising out of a sale of real estate. We reverse and remand. FELON IN POSSESSION Nadeau, J. The defendant, Brian Hammell, appeals his convictions in Superior Court (McGuire, J.), on twelve counts of being a felon in possession of a weapon. We affirm in part and reverse in part.
CONTRACT/ARBITRATION Dalianis, J. This is a dispute between the plaintiff, John A. Cookson Company, and the defendants, New Hampshire Ball Bearings, Inc. (NHBB) and NMB Corporation (NMB), relating to the breach of certain sales representative agreements. The plaintiff appeals decisions of the superior court requiring arbitration of its claims against the defendants and upholding the arbitrator's award. We affirm in part, reverse in part and remand. MOTION TO SUPPRESS/DRUG POSSESSON Broderick, J. The defendant, Joseph Heirtzler, was charged with possession and distribution of a controlled drug. See RSA 318-B:26 (I)(b)(3), (II)(a) (Supp. 2000). The State appeals an order of the Superior Court (Coffey, J.) granting his motion to suppress evidence obtained as a result of an interrogation and search conducted by a school official. We affirm. TAX ABATEMENT/CHARITABLE ORGANIZATION Nadeau, J. The plaintiff, East Coast Conference of the Evangelical Covenant Church of America, Inc. (Church), appeals the ruling of the Superior Court (Arnold, J.) denying, in part, the Church's petition for tax abatement because certain portions of its property did not qualify for the charitable organization tax exemption for tax years 1996, 1997 and 1998. The defendant is the Town of Swanzey (town). We affirm. On the plaintiff's motion for reconsideration of the court's July 26, 2001 decision and motion for leave to brief constitutional issue raised by opinion, the court orders that the slip opinion dated July 26, 2001 be modified as follows. In all other respects, the motions are denied. 1. The word "services" in the fifth sentence of the fourth paragraph on page 2 of the slip opinion is deleted and replaced by the word "programs," so that said paragraph as modified shall state as follows: Pilgrim Pines' functions can be divided into two main categories. First, during the summer months (eight to ten weeks per year), Pilgrim Pines is host to weeklong "camp programs" for families and adults. These programs have Christian-based themes and are run by pastors of the Church's national clergy. The programs include worship services, Bible study groups and recreation opportunities when the programs are not in session. Guests are informed that they are expected to participate in the programs during their stay at Pilgrim Pines. Guest registration check-in forms require indication of church affiliation, and approximately sixty percent of guests are members of the Church. 2. The first sentence of the first full paragraph on page 4 of the slip opinion, which begins with the words "The trial court ruled that for the years in question," is deleted and replaced with a new sentence, so that said paragraph as modified shall state as follows: The trial court ruled that for the years in question, the facilities at issue should not be entitled to a charitable exemption because the Church failed to offer their use to an indefinite number of the public. We agree. 3. The first four full paragraphs on page 5 of the slip opinion, which begin with the words "The Church's Articles of Agreement" and end with the words "not eligible for a charitable tax exemption" are deleted and replaced by the following two paragraphs: Based upon our review of the factual record, we hold that the Church failed to prove that the beneficiaries of Pilgrim Pines were a substantial and indefinite segment of the general public for the tax years at issue. According to the Church, our holding in Christian Camps & Conferences stands for the proposition that properties where programs are specifically oriented to people of a certain religion are properly exempted under RSA 72:23, V. We disagree. In that case, we upheld the trial court's conclusion that a corporation owning and operating two summer camps "oriented toward an understanding of the tenets of the Christian religion, in addition providing all of the programs of the better summer camps for young people" was a charitable organization. Christian Camps & Conferences, 118 N.H. at 353, 355. The case does not address the specific degree to which the organization served the general public or a substantial and indefinite segment of the general public. Accordingly, we affirm the decision of the trial court that the Church's operation at Pilgrim Pines is not eligible for a charitable tax exemption. SEXUAL ASSAULT/EXTENDED IMPRISONMENT NADEAU, J. The defendant, Alexander R. Cole, was convicted in Superior Court (Smith, J.) of one count of felonious sexual assault, see RSA 632-A:3, III (1996), and sentenced to an extended term of imprisonment pursuant to RSA 651:6, I(f) (1996). The defendant appeals the imposition of the extended term of imprisonment. We affirm. SUMMARY JUDGEMENT/INSURANCE COVERAGE Dalianis, J. The defendant, Graphic Arts Mutual Insurance Company, appeals from the Superior Court's (Conboy, J.) denial of its motion for summary judgment upon the claim by the plaintiffs, Contoocook Valley School District and School Administrative Unit No. 1, for indemnification under their insurance policy. The trial court ruled that the indemnification claim was not barred by exclusion 2(h) of the policy. We affirm. LANDLORD TENANT/QUIET ENJOYMENT OF PROPERTY DUGGAN, J. This is an appeal by the defendant, Sharon Frazier (landlord), from a decision by the Plymouth District Court (Kent, J.) awarding damages of $8,000 to the plaintiffs, William and Deborah Crowley (tenants), based upon the landlord's violation of RSA chapter 540-A (1997). We reverse. BUILDING PERMIT/FEDERAL LAW BROCK, C.J. The defendant, the Town of Hudson (town), appeals from a Superior Court (Brennan, J.) order rescinding a building permit granted to the intervenor, Jeremy L. Muller. The town argues that the court misapplied the law on accessory uses and ordered relief that conflicted with federal objectives to allow and promote amateur ham radio facilities. We affirm in part, reverse in part, vacate and remand. RIGHT TO KNOW LAW BROCK, C.J. The plaintiff, Cassandra Hawkins, appeals a Superior Court (Coffey, J.) order dismissing her petition for declaratory and injunctive relief under the Right-to-Know Law, RSA ch. 91-A (2001 & Supp. 2001), seeking access to certain records kept by the defendant, New Hampshire Department of Health and Human Services (HHS). We vacate and remand.
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