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Bar News - July 26, 2002 NH Supreme Court Opinion Summaries COMPENSATION FOR EXCAVATION MATERIAL – NH TRANSPORTATION APPEALS BOARD BRODERICK, J. The State appealed a New Hampshire Transportation Appeals Board (board) decision awarding the respondent compensation for the disposal of certain surplus excavation material associated with construction of Route 101. The supreme court reversed. A company successfully bid on and entered a road construction contract for work with the New Hampshire Department of Transportation (DOT). Departing from its usual procedure and categories for bid documents for excavation and disposition of soil, DOT alerted contractors with a special attention provision. The special attention provision allowed prospective bidders to request further information about bid documents. The company did not inquire about excavation disposal prior to submitting its bid. After completing its contract work, the company unsuccessfully sought additional compensation for disposal of certain quantities of soil. A DOT hearings officer denied the company’s claim, stating that the company’s interpretation of the contract was unreasonable. Upon appeal, the board determined that the company was entitled to payment because the relevant contract language was ambiguous, and therefore should be construed against the state. The supreme court concluded that the company’s interpretation was unreasonable in light of the contract’s plain language. The court determined that the board erroneously found that the contract was ambiguous, based the decision on select portions of the special attention provision, and did not fully consider all of the relevant portions of the contract. The court further concluded that calculation differences should have alerted the company to its misinterpretation of the contract. The court found that the contract was not ambiguous when read as a whole, and held the board’s interpretation unreasonable.
BARGAINING UNIT CERTIFICATION – PUBLIC EMPLOYEES – ON-CALL DUGGAN, J. The petitioner, the Town of Litchfield (town), appealed a decision of the public employee labor relations board (board) certifying a bargaining unit for certain employees of the town. The town argued that the board erred by including in the bargaining unit twenty-seven part-time firefighters and the deputy town clerk. Additionally, the town argued that exclusion of these employees from the bargaining unit would result in an insufficient number of employees for certification of the bargaining unit pursuant to RSA 273-A:8, I (d) (1999). The supreme court affirmed in part and reversed in part. The respondent, AFSCME Council 93 (union), filed a petition to certify a bargaining unit of town employees in eleven job classifications. The town objected, arguing that (1) the twenty-seven part-time firefighters are not "public employees" pursuant to RSA 273-A:1, IX (d) (1999), because they are on-call; (2) the deputy town clerk is excluded pursuant to RSA 273-A:1, IX (b), because the position is appointed, and because no purpose is served by including the position in the bargaining unit, since the deputy town clerk cannot be the subject of collective bargaining; and (3) the remaining employees are fewer than the ten required for certification as a bargaining unit pursuant to RSA 273-A:8, I (d). The hearing officer certified the bargaining unit, and the board affirmed the decision and denied the town’s motion for rehearing. The supreme court analyzed the statutory eligibility of the part-time firefighters using the plain meaning of the term "on call." Although the union attempted to differentiate on-call firefighters from on-call police officers by arguing that the firefighters were required to attend regular training sessions and respond to a call if available, the supreme court rejected the argument, and held that the board erred in concluding that the part-time firefighters were not on call and in not excluding them from the definition of public employee. The court next concluded, using a plain meaning analysis, that a town clerk was not a chief executive when appointing the deputy town clerk, within the meaning of RSA 273-A:1, IX (b). Although the town clerk’s job tenure is not subject to collective bargaining, the court further reasoned that the union may still represent the deputy town clerk on issues such as wages and hours, thereby being served by the bargaining unit. Including the deputy town-clerk in the bargaining unit allowed the unit to meet the statutory requirement of ten or more employees pursuant to RSA 273-A:8, I; therefore, the court declined to address the argument regarding the minimum number of employees.
DECLARATORY JUDGMENT – INJUNCTIVE RELIEF – MISREPRESENTATION – FIDUCIARY DUTY- RES JUDICATA NADEAU, J. Three years after a Dartmouth College capital campaign, the Board of Trustees of Dartmouth College (trustees) announced that it was considering investing to improve the residential and social system of the college, including the fraternity and sorority system, the dining arrangements, and other student life aspects. The alumni plaintiffs sought declaratory judgment and injunctive relief to prevent Dartmouth college from spending campaign funds to eliminate single-sex fraternities and sororities, and alleged that the conduct of the trustees in raising the campaign funds: (1) constituted breach of fiduciary duty; (2) constituted misrepresentation; and (3) violated the New Hampshire Consumer Protection Act. The plaintiffs further alleged that certain trustees were not properly elected, and that their presence on the board was a breach of fiduciary duty and breach of good faith and fair dealing. The supreme court was not persuaded by the plaintiffs argument that the association did not have a sufficient interest in litigation to support its intervention. Because the relief sought by the plaintiffs would have a direct effect on the association, the supreme court upheld the trial court’s exercise of discretion in granting the motion to intervene. Regarding the fiduciary duty, the supreme court found that no facts were pled that showed the alumni to be in a submissive position to the college, and therefore there was no fiduciary duty. The supreme court did not find fraudulent misrepresentation because the plaintiffs did not offer evidence that the trustees decided or tried to conceal a decision to eliminate fraternities and sororities. The court rejected the plaintiff’s claim that they were denied further discovery. Regarding the Consumer Protection Act claim, the supreme court decided under RSA 358-A:2 that alumni gifts are dissimilar from the types of acts listed, are strictly private in nature, and are not covered by the Act’s protection. With respect to the method of trustee selection, the supreme court further agreed with the trial court that the same factual transaction gave rise to the plaintiff’s legal allegations, and therefore the claims were barred by res judicata and the Bricker doctrine. The supreme court found no error in the trial court’s dismissal, which stated that the plaintiffs did not allege a breach of a duty of good faith and fair dealing, and therefore did not state a claim upon which relief could be granted.
SEXUAL ABUSE OF A MINOR – VISITATION RIGHTS – DIVORCE – STAUTE OF LIMITATIONS – DISCOVERY RULE DUGGAN, J. The plaintiff appealed the trial court’s orders granting the defendants’ motions to dismiss his claims on the ground that they were barred by the applicable statute of limitations. The supreme court affirmed. The plaintiff’s wife reported to the New Hampshire Department of Health and Human Services (DHHS) that the plaintiff had sexually abused their three-year-old daughter. A licensed social worker evaluated the daughter, concluded she had possibly been sexually abused, recommended no unsupervised visitation with the plaintiff, and began counseling the daughter. In an addendum to her evaluation, the social worker stated she believed that the plaintiff had engaged in genital fondling and genital and oral intercourse with his daughter. Pursu ant to the social worker’s evaluation, the superior court first suspended the plaintiff’s visitation with his daughter, and later allowed only supervised visitation. A DHHS employee investigated the social worker’s allegations and agreed that the child abuse allegations were founded, even without physical evidence. A divorce hearing before a master questioned the truth of the abuse claims. Based on the social worker’s leading interview questions and an independent evaluation of the daughter that criticized the investigation, the master recommended joint legal custody and granted the plaintiff residual physical custody of his daughter. The plaintiff appealed the initial DHHS finding, and DHHS reversed. Alleging an improper investigation, improper supervision, and reckless disregard of duties, the plaintiff filed a writ against DHHS, its investigators, and the social worker. He claimed damages from a willful and intentional breach of the defendant’s duty not to interfere with his parental rights. Each of the defendants moved to dismiss the allegations against them because of a three-year statute of limitations. The superior court granted each motion, stating the plaintiff had sufficient notice from the injury caused by the social worker’s evaluation, or from the initial DHHS finding. The court also found that the appeal of the DHHS finding did not toll the running of the statute. The supreme court stated that the plaintiff failed to allege any facts supporting his claim that he was unable to reasonably discover the cause of his injuries until the DHHS ruled on his appeal. He therefore should have discovered a causal connection between his harm and the defendants’ alleged negligence, when DHHS determined that the allegations of sexual abuse were founded. Thus, the court stated that the plaintiff should have been aware of his injury and its alleged cause. Because the final DHHS action was not a prerequisite to the civil lawsuit, the supreme court also upheld the superior court’s finding that the doctrine of exhaustion of administrative remedies was inapplicable.
TERMINATION OF PARENTAL RIGHTS – NEGLECT BRODERICK, J. The State Division for Children, Youth, and Families (DCYF) petitioned to terminate the parental rights of a mother over her two sons. The petition was granted in probate court. The supreme court affirmed. After the birth of a first son, a consent order allowed the son to remain in the custody of his mother, but granted legal custody to DCYF. The son later returned to his mother’s custody. Following reports of abuse, DCYF filed another petition for neglect. DCYF was granted protective custody and legal custody. After the mother failed to meet certain requirements, the son was placed in a children’s home. The mother’s parenting problems persisted after the birth of the second son. Periodic review hearings revealed that the mother failed to comply with court orders regarding her sons. DCYF petitioned to terminate the mother’s parental rights to her sons. The court, based on the mother’s failure to correct conditions of neglect and in the best interests of the child, terminated the mother’s parental rights. She appealed, contending that: (1) RSA 170:9 violates fundamental fairness; (2) the court deprived her of the ability to confront her accusers: (3) she was denied due process; and (4) the probate court erred in terminating rights for one son on grounds established for the other son. The supreme court stated that the probate court’s findings were supported by evidence presented at the termination hearing. The court rejected the argument that the mother was not allowed to confront her accusers, and found that the probate court complied with statutory requirements for admission of evidence. The court also rejected the contention that the mother was denied due process, and found the probate court’s admission of evidence directly related to the issues of failure to correct and the best interests of the children. Lastly, the supreme court disagreed that parental rights related to one son were based on factual grounds established for the other son, and found that the evidence supported the probate court’s finding that the mother failed to comply with conditions established by DCYF.
PUBLIC PARKS – STATE RESERVATION – COMMUNICATION TOWER – CHARITABLE TRUST –JURISDICTION – JUDICIAL ESTOPPEL DUGGAN, J. The plaintiff, Conservation Law Foundation (CLF) appealed an order from probate court denying its request to remove a communication tower located on the summit of Pack Monadnock. The supreme court affirmed. In 1891, the legislature appropriated funds for constructing a road to the summit of Pack Monadnock. The funds were dependent upon the owners of the summit property dedicating their properties to the public use for a public park and pleasure ground. A legislator drafted two deeds which conveyed the summit property in trust. Since 1892, the State has treated the land as a state reservation. Since 1915 various state agencies have managed the land as a public park. The New Hampshire Department of Resources and Economic Development (DRED) currently manages the park. DRED issued a permit in 1997 to build a 134-foot communication tower and building on the land, as part of a public safety communications network. In 1998 CLF sought removal of the nearly completed tower, through an equitable proceeding in superior court, arguing that the construction violated the terms of the trust. The State moved to dismiss the proceedings, arguing that the probate court had exclusive jurisdiction over the interpretation, construction, and modification of express trusts pursuant to RSA 547:3, I(c) (Sup. 2001). The state also filed a petition in probate court to determine the appropriateness of the State’s continued use of the land conveyed by the charitable trust. The probate court determined that the State has legal interest in the tract as a "reservation," and the intent was for the land to be used as a public park or pleasure ground. Further, the court determined that the communications tower could stay because the park has been used in accordance with the grantor’s intent, and the tower does not interfere with the recreational use of the land. The supreme court determined that certain language in the trust is ambiguous, and therefore, that the probate court’s use of extrinsic evidence such as newspaper accounts and legislation surrounding the development of the park was proper. Next, the supreme court concluded that a reasonable person could find that [the grantor] intended the property to be used as a state reservation. The court ruled that the probate court had jurisdiction over wills and trusts, and did not exceed the scope of its jurisdiction. Lastly, the court declined to adopt judicial estoppel, and stated that application of judicial estoppel would not affect the outcome of the case.
DOMESTIC VIOLENCE – PROTECTIVE ORDER NADEAU, J. The respondent appealed from an order of the superior court granting a final domestic violence protective order to the petitioner, arguing that there was insufficient evidence to support a finding that his conduct "constitute[d] a credible threat to the [petitioner’s] safety." RSA 173-B:1, I (Supp. 2001). The supreme court reversed. After the parties divorced, the petitioner filed a petition alleging that the respondent was stalking her. See RSA 633:3-a (1996 & Supp. 2001). The court found a consensual relationship between the parties and refused to find that the respondent had stalked her. The court added a permanent mutual restraining order to the divorce order, since neither party wanted further contact with each other. See RSA 458:16 (Supp. 2001). The petitioner later filed a domestic violence petition alleging past physical violence and fear for her safety because the respondent owned weapons, and further alleging that the respondent had made contact with the petitioner on numerous occasions. The trial court found in favor of the petitioner, issued a final domestic restraining order against the respondent, and held the respondent in contempt of the mutual restraining order. The respondent appealed the final domestic restraining order, but did not contest the contempt ruling. The supreme court stated that a final domestic restraining order was justified only if the evidence supported a finding that the petitioner’s safety was threatened. RSA 173-B:1, I. Although the supreme court determined that the evidence was sufficient for a finding that the respondent harassed the petitioner, see RSA 644:4, I(f), there was not enough evidence to support a finding that the petitioner’s safety was threatened. See RSA 173-B:1, I.
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