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Bar News - March 23, 2007

NH Supreme Court At-a-Glance: February 2007



Plourde Sand & Gravel v. JGI Eastern, Inc., f/k/a Jaworski Geotech,, Inc.

Hooksett District Court

No. 2005-912



Hiltz Construction, Inc. (Hiltz), a subcontractor for a private construction project in Pembroke, hired the plaintiff to supply gravel for purposes of constructing the base for a roadway in Pembroke.  After the plaintiff supplied the gravel, engineers hired by the Town of Pembroke, hired the defendant, JGI Eastern, Inc., to test the gravel to determine whether it met town specifications.  The defendant tested the gravel, and reported that it was insufficient.  Hiltz required the plaintiff to remove and replace the gravel at its own expense with material that met town specifications. After doing so, the plaintiff tested the gravel and found that it did in fact meet town specifications.


The plaintiff sued the defendant in tort. The defendant moved to dismiss, arguing that the damages sought are purely economic losses which are not recoverable in tort. Recognizing that it was undisputed that the plaintiff’s writ alleged only economic loss damages and that there was no contractual privity between the plaintiff and the defendant, the court granted the defendant’s motion to dismiss.


The plaintiff appeals, arguing: (1) the economic loss doctrine does not apply since there is no contractual privity with the defendant; or (2) section 552 of the Restatement (Second) of Torts affords an exception to the economic loss doctrine, permitting recovery because the defendant made a negligent misrepresentation. The defendant responds that the negligent misrepresentation exception is not properly before us because it was not pled in the plaintiff’s writ and was not raised in the notice of appeal.


The economic loss doctrine is a common law rule that emerged with the advent of products liability. Farmers Alliance Mut. Ins. Co. v. Naylor, 452 F. Supp. 2d 1167, 1172 (D.N.M. 2006). While some states generally limit its application to products liability cases, Moransais v. Heathman, 744 So. 2d 973, 983 (Fla. 1999), many other states, including New Hampshire, have expanded its application to other tort cases. Lempke v. Dagenais, 130 N.H. 782, 792 (1988); Farmers Alliance, 452 F. Supp. 2d at 1172-73.


Many courts, however, have expanded the economic loss doctrine to bar economic recovery in tort cases where there is no contract and thus no privity. See, e.g., Anderson Elec. v. Ledbetter Erection Corp., 503 N.E.2d 246, 249 (Ill. 1986) (“A plaintiff seeking to recover purely economic losses due to defeated expectations of a commercial bargain cannot recover in tort, regardless of the plaintiff’s inability to recover under an action in contract.”). The policy behind this principle is to prevent potentially limitless liability for economic losses.


The defendant was hired by Keach, the engineer hired by the town to ensure the private project complied with town specifications. The plaintiff was hired by Hiltz, who in turn was hired by the general contractor. We reject the plaintiff’s invitation to impose a duty on the defendant in such a situation. Were we to do so, there is no principled limit to liability. See Ultramares Corporation v. Touche, 174 N.E. 441, 444 (N.Y. 1931) (expressing concern that liability could be extended to “an indeterminate amount for an indeterminate time to an indeterminate class”).


We will not expand the elements of negligent misrepresentation to include a scenario where reliance by anyone directly or indirectly involved may be imputed to the plaintiff so as to permit the plaintiff to maintain a cause of action. We have rejected claims for negligent misrepresentation absent reliance before. See Tober’s Inc. v. Portsmouth Housing Auth., 116 N.H. 660, 663 (1976); see also Bronstein v. GZA GeoEnvironmental, 140 N.H. 253, 256-57 (1995) (finding no claim under section 552 where it was not reasonably foreseeable that plaintiffs would rely upon the prepared report).


Therefore, we hold that the plaintiff has failed to establish a claim for negligent misrepresentation. Because the plaintiff cannot establish a valid exception to the economic loss doctrine, the district court did not err in granting the defendant’s motion to dismiss.


The State of New Hampshire v. William Looney

Hillsborough-northern Judicial District

No. 2006-348



The defendant, William Looney, appeals the order of the Superior Court (Brennan, J.) dismissing his motion to set aside the jury verdict and/or for a new trial as untimely. We affirm.


The defendant was convicted by a jury of aggravated driving while intoxicated, criminal mischief, disobeying an officer, second-degree assault, first-degree assault, conduct after an accident and reckless conduct, on September 15, 2000.  After the trial court stayed the running of the appeal period, the defendant appealed his conviction on April 2, 2001. While the appeal was pending, he filed a motion to set aside the verdict and/or demand a new trial which the trial court dismissed. The defendant did not appeal this dismissal.


We affirmed his conviction in an opinion issued on December 16, 2002. See id. The mandate was returned to superior court on January 8, 2003. On December 20, 2004, the defendant again moved to set aside the verdict and/or demand a new trial. Following a hearing, the trial court denied the motion as untimely because it was filed more than three years from the rendition of judgment in his criminal case, which the court defined as either the jury’s verdict (September 18, 2000) or the date of the mittimus (December 20, 2000).


On appeal, the defendant argues that the trial court erroneously interpreted the relevant statute, RSA 526:4 (1997), which provides, in pertinent part: “A new trial shall not be granted unless the petition is filed within three years after the rendition of the judgment complained of.” He asserts that a judgment is not “rendered” until it is final, which, he argues, means either that the appeal period has expired or, if an appeal has been filed, it has been resolved and the mandate has been returned to the trial court. He contends that because this court did not return the mandate to the superior court until January 8, 2003, he had until January 8, 2006, in which to file a motion for a new trial. Thus, he argues, the motion he filed on December 20, 2004, was timely.


In this case, the trial court sentenced the defendant to state prison on December 19, 2000. He filed his motion for a new trial more than three years later, on December 20, 2004. His motion was therefore untimely and the trial court aptly dismissed it under RSA 526:4.  “A judgment is rendered where the written decision of the court has been properly filed with the clerk of court, and especially where it has been recorded.” Bricker v. Sceva Speare Hosp.,115 N.H. 709, 712 (1975).


Robyn Landry v. Daniel Landry

Hillsborough-southern judicial district

No. 2005-815

Vacated and Remanded


The defendant, Daniel D. Landry, appeals an order of the Trial Court (Hicks, J.) ruling, in part, that the plaintiff, Robyn Landry, was entitled to an order of attachment and execution against personal property of the defendant in the possession of his sister and brother-in-law, Linda and Raymond Beauregard. We vacate and remand.


In July 2003, the parties were divorced; the defendant was to provide the majority of an inheritance from his late father to the plaintiff. The defendant did not turn over the funds.  The plaintiff moved for contempt based upon the defendant’s failure to pay.  The Trial Court (Hampsey, J.) found the defendant in contempt and ordered him to pay approximately $10,000.  At some point the defendant paid $5,000, but he did not pay the remainder.


The defendant is currently serving an eight- to sixteen-year sentence at the New Hampshire State Prison, and will complete his minimum term in 2012. Prior to his incarceration, he transferred his 1996 Honda Civic, a utility trailer and his collection of automotive mechanic’s tools to the Beauregards. In February 2005, the plaintiff filed a new action to collect the remaining money due her. She requested, and the trial court granted, an attachment on the items the defendant transferred to the Beauregards. In September 2005, a default judgment was entered against the defendant and the plaintiff sought a writ of execution. Relying upon RSA 511:2 (1997 & Supp. 2006), the defendant moved to exempt his mechanic’s tools from attachment and execution up to a value of $13,000.


The trial court ordered that the defendant’s vehicle and trailer be appraised and sold. As for the tools, the trial court found that the defendant was entitled to exempt them from attachment and execution, up to $5,000 in value, pursuant to RSA 511:2, IX. The trial court did not address the availability of any other exemptions under RSA 511:2. The defendant sought reconsideration, arguing that the trial court overlooked the “catch-all” or “wild card” exemption in RSA 511:2, XVIII, and that under this provision he was entitled to claim an additional $8,000 exemption for his tools. The trial court denied reconsideration and this appeal followed.


We conclude that the defendant may apply the exemption in RSA 511:2, XVIII to his automotive tools in addition to the exemption provided in RSA 511:2, IX.


By applying the exemption in RSA 511:2, XVIII to his tools, the defendant does not alter the exemption in RSA 511:2, IX. He is instead applying two exemptions to the same asset. Nothing in the statute’s language prevents the “stacking” of exemptions, see Vaillancourt, 260 B.R. at 70, and we will not read such a restriction into the statute where it has not been included by the legislature. Villages at Chester, 153 N.H. at 199.


The plaintiff next argues that if the exemption in RSA 511:2, XVIII applies to the defendant’s tools, the total exemption should be less than the $13,000 claimed by the defendant. According to the plaintiff, the defendant has other assets that may be covered by other exemptions referenced in RSA 511:2, XVIII and the value of those assets, whether or not the defendant seeks to exempt them, should be subtracted from the “unused” amount the defendant may exempt under RSA 511:2, XVIII.


Here, the defendant has claimed the entire $5,000 exemption provided in paragraph IX, leaving $9,200 in unused exemptions. Additionally, the defendant owns an automobile, which is exempt up to $4,000 under RSA 511:2, XVI. Because these exemptions are mandatory, the value of the defendant’s automobile up to $4,000 must also be exempted, so that the value available under that paragraph would no longer be “unused.” We have not, however, been presented with an inventory or appraisal showing the value of the defendant’s vehicle. Also, the plaintiff contends that the defendant owns other items subject to exemptions identified in RSA 511:2, XVIII and which had not been appraised.


Because we have not been presented with a full appraisal of the defendant’s property, we must vacate the trial court’s ruling and remand the matter for a more complete appraisal of the defendant’s property so that the exemption amounts may be properly determined.


Appeal of Alan Hardy

(New Hampshire Department of Labor)

Department of Labor

No. 2005-529

Reversed and Remanded


The petitioner, Alan Hardy, appeals a decision of the New Hampshire Department of Labor (DOL) that it did not have statutory authority to award him attorney’s fees and expenses for his successful Whistleblowers’ Protection Act claim, see RSA chapter 275-E (1999 & Supp. 2006). The respondent, the Hopkinton State Fair Association (Association), cross-appeals the DOL’s ruling that Hardy met his initial burden of persuasion on the merits of his claim. We dismiss the Association’s cross-appeal, reverse the DOL’s ruling on attorney’s fees and remand.


Because the Association did not comply with the requirements of RSA 541:4 and :6, and Rule 10(1), we dismiss its cross-appeal on our own motion. See Appeal of White Mts., 125 N.H. at 775 (“when a record does not demonstrate that the appealing party has met the requirements of [RSA 541:4] we will refuse the appeal or dismiss it on our own motion”); cf. Dziama v. City of Portsmouth, 140 N.H. 542, 545 (1995) (when board of adjustment’s original decision was denial upon merits based upon one issue, and, following rehearing, board admitted error as to that issue but denied petition upon merits based upon new second issue, aggrieved party had to file new motion for rehearing with board to preserve appeal). Our decision is made in furtherance of the purpose of the statutory scheme and of our rule, specifically that “administrative agencies should have a chance to correct their own alleged mistakes before time is spent appealing from them.” Appeal of White Mts., 125 N.H. at 774.


In its now dismissed cross-appeal, the Association contended that the hearing officer misapplied the mixed motive analysis by substituting the absence of a proffered non-retaliatory reason for Hardy’s initial burden of showing that the retaliatory reason was a “substantial factor” in the Association’s decision to eliminate Hardy’s position. See id. at 301; Price Waterhouse v. Hopkins, 490 U.S. 228, 265, 277-78 (1989) (superseded in part by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq.) (O’Connor, J., concurring).


Even if we were to assume that the Association was correct in those arguments, we would still affirm the DOL’s finding for Hardy on the merits. Simply because Hardy introduced some direct evidence of a retaliatory reason for the elimination of his position does not mean that the hearing officer was necessarily precluded from applying the pretext analysis. The Association’s argument is based upon an incomplete reading of our decision in Montplaisir. In that case, we stated, “If there is direct evidence of retaliation, then the ‘mixed motive approach’ applies.” Montplaisir, 147 N.H. at 300. In amplification of that statement, however, we explained, “If the employee produces direct evidence that retaliation played a substantial role in a particular employment decision, then the ‘mixed motive’ approach applies.” Id. at 301 (emphasis added). Thus, if Hardy did not produce direct evidence that met the threshold test of playing a substantial role, then the mixed motive analysis would not apply.


The Association essentially argues that as soon as any direct evidence of retaliation is introduced, the case is channeled into a mixed motive analysis. If that direct evidence does not rise to the level of playing a substantial role, presumably the Association would argue that the claim must be dismissed. The Association has cited no authority, and we know of none, that supports this level of mutual exclusivity of the pretext and mixed motive approaches.


In deciding Hardy’s request for reimbursement of attorney’s fees and expenses, the DOL interpreted RSA 275-E:4, I.  We agree with Hardy that ordering the reimbursement of attorney’s fees and expenses is an appropriate exercise of the DOL’s injunctive relief authority under RSA chapter 275-E that effectuates the purposes of the statute. Both E.D. Swett, Inc. v. New Hampshire Commission for Human Rights, 124 N.H. 404 (1983), and Appeal of Bio Energy, 135 N.H. 517 (1992), support our decision.


Appeal of Pinkerton Academy v. Public Employee Labor Relations Board

No. 2005-627

Vacated and Remanded


The petitioner, Pinkerton Academy (Pinkerton or the Academy), appeals an order of the New Hampshire Public Employee Labor Relations Board (PELRB) asserting jurisdiction over an unfair labor practice complaint against the Academy filed by the respondents, who are two Pinkerton teachers, the Pinkerton Academy Teachers Association and NEA-New Hampshire.  Because exclusive jurisdiction over the complaint at issue lies with the National Labor Relations Board (NLRB or Board), we vacate the order of the PELRB and remand with instructions to dismiss the complaint.


In November 2004, the respondents filed an unfair labor practice charge against the Academy with the PELRB. NEA-New Hampshire also filed a petition for declaratory judgment, asking the PELRB to decide whether Pinkerton is a public employer subject to the PELRB’s jurisdiction. In May 2005, the PELRB determined that the Academy is a “quasi-public corporation” subject to its jurisdiction. The main legal issue before us is whether Pinkerton Academy is a “political subdivision” exempt from the Act’s coverage, as that term has been defined by the NLRB.  We ordered supplemental briefing on one issue: whether the National Labor Relations Act confers exclusive jurisdiction over this dispute to the NLRB.  We conclude that, as a matter of law, Pinkerton Academy is a nonprofit educational institution over which the NLRB has jurisdiction, rather than an exempt political subdivision.


Although Pinkerton Academy has assumed the statutory responsibility of providing high school education for the Towns of Derry, Chester and Hampstead, it has done so pursuant to a series of contracts between the Academy and the sending districts, not pursuant to any statutory duty imposed upon Pinkerton Academy. Its contractual relations with political subdivisions of the State do not transform it into a political subdivision.  Unlike the California charter schools, Pinkerton Academy is governed by a private board of trustees.  Also unlike the California charter schools, Pinkerton Academy is not administered by individuals who are responsible to public officials or the general public as that requirement has been interpreted by the NLRB. See Hinds County, 331 N.L.R.B. at 1404; Truman Medical Ctr., 641 F.2d at 572.  Any responsibility of Pinkerton’s trustees to the sending districts “derives from the contractual relations between [Pinkerton] and these political subdivisions, and is not the sort of direct personal accountability to public officials or to the general public required to support a claim of exemption under § 2(2).” Truman Medical Ctr., 641 F.2d at 573 (emphasis added).


In summary, Pinkerton Academy was not created directly by the State of New Hampshire so as to constitute an administrative arm of the State, nor is it administered by individuals who are responsible to public officials, nor do its employees participate in the New Hampshire Retirement System. Consequently, we hold that Pinkerton Academy is an employer as defined in section 2(2) of the Act. Pinkerton likewise meets the monetary jurisdictional standard as the record indicates that Pinkerton receives gross annual revenue in excess of $26 million. Because Pinkerton Academy qualifies as a nonprofit educational institution within the jurisdiction of the NLRB, we vacate the decision of the PELRB, and remand with instructions to dismiss.


Joy A. Chase v. Ameriquest Mortgage Company

Grafton District Court

No. 2006-236



N.B.:  The author represented the Defendant at the Superior Court and represents it generally.


The facts are undisputed. The plaintiff and her ex-husband, George Chase, purchased a home at 55 Main Street in Rumney in August 1996. Using their home as collateral, they later executed a mortgage note and deed with Bankers Trust Company of California. In April 2002, again utilizing the home as collateral, Mr. Chase entered into a mortgage with Ameriquest in the amount of $90,000. The parties stipulated, for purposes of the hearing before the trial court, that Mr. Chase forged the plaintiff’s name when he executed the mortgage instrument with Ameriquest. As part of the mortgage agreement, Ameriquest paid off the Bankers Trust mortgage.


Pursuant to a divorce agreement later executed between the plaintiff and her husband, the plaintiff became the “sole owner of the parties’ marital residence subject to any indebtedness legally secured thereby.” At some point, the plaintiff did not meet the obligations of the mortgage with Ameriquest and foreclosure proceedings began. The plaintiff then sought to enjoin the foreclosure. The proceedings at issue here followed, with Ameriquest seeking $74,439.78 from the plaintiff, the amount it paid to Bankers Trust.


After a hearing, the trial court ruled that Ameriquest’s mortgage constituted a charge on the homestead and the doctrines of equitable subrogation and unjust enrichment required the plaintiff to pay the $74,439.78. The plaintiff appealed, arguing that the trial court erred in applying the doctrines of equitable subrogation and unjust enrichment because the statutory homestead exemption relieves her from any obligation to pay Ameriquest under the terms of the mortgage.


“[a] benefit was conferred on Ms. Chase when Ameriquest paid her valid mortgage. Ms. Chase is aware of the benefit because she took out the original mortgage and lives on the property. It is inequitable for Ms. Chase to retain the property free and clear of all liens.” As the Florida Supreme Court noted in a case quite similar to this one, “The homestead exemption is intended to be a shield, not a sword.”


Equitable subrogation, in particular, is a broad doctrine, which is given liberal application. Id. § 5. “It applies where one who has discharged the debt of another may, under certain circumstances, succeed to the rights and position of the satisfied creditor.” Id. In order for equitable subrogation to apply, we hold that all of the following conditions must be met: (1) the subrogee cannot have acted as a volunteer; (2) the subrogee must have paid a debt upon which it was not primarily liable; (3) the subrogee must have paid the entire debt; and (4) subrogation may not work any injustice to the rights of others.


The amount recoverable by operation of equitable subrogation is limited by the “general rule . . . that a subrogee is entitled to indemnity to the extent only of the money actually paid by him to discharge the obligation, or the value of the property applied for that purpose.” 73 Am. Jur. 2d Subrogation § 67.


Therefore, we agree with the trial court that Ameriquest is not entitled to recover the difference between the amount outstanding on the Bankers Trust mortgage and the amount it ultimately lent ($74,439).


In the Matter of Elizabeth A. Chamberlin and William L. Chamberlin

Newport Family Division

No. 2005-808


The petitioner, Elizabeth A. Chamberlin, appeals a recommended order of a Marital Master (Forrest, M.) approved by the Newport Family Division (Cardello, J.) determining that the corpus of the William Chamberlin and Elizabeth Chamberlin Irrevocable Charitable Trust (Trust) was not marital property and that the settlors’ right to receive interest from the Trust, although marital property, was of negligible monetary value.


The respondent sought reconsideration of the final divorce decree, arguing that the “Trust [was] irrevocable and [its corpus was] not a spendable asset” available to him, thus making it erroneous for the trial court to have counted the corpus as a marital asset in its division of the parties’ marital estate. He further argued that even if the Trust corpus were increased to $110,000, given his probable five-year life expectancy and a seven-percent rate of return, his interest in the Trust – i.e., his right to receive distributions from it – was worth only $35,000 rather than the higher figure used by the court. The trial court granted the motion to reconsider, explaining that “[t]he Trust is irrevocable, and the [corpus] is not, therefore, an asset properly counted as part of the respondent’s equitable share of the assets distributed pursuant to the . . . Final Decree.” As well, the trial court relieved the petitioner of her obligation to increase the Trust corpus to $110,000 and allowed the respondent to retain the right to receive income generated from the Trust.


Based upon the readily ascertainable values of all the other marital assets and the trial court’s ruling that its final distribution was intended to result in a split of fifty-seven percent for the petitioner and forty-three percent for the respondent, it is apparent that the trial court determined that the respondent’s right to receive distributions from the Trust once the corpus exceeded $110,000 had negligible value. In addition, the trial court increased the petitioner’s lump sum equalization payment to the respondent by $8,000, to correct for the change in the value of the total marital estate caused by the deletion of the Trust corpus and to keep the overall division of assets in line with percentages determined to be equitable in the final divorce decree.


We now adopt, as herein modified, the two-step analysis outlined in In the Matter of Valence and Valence, 147 N.H. 663, 666 (2002), under which the trial court first determines, as a matter of law, what assets are marital property under RSA 458:16-a, I, and thus subject to equitable distribution, and then exercises its discretion to make an equitable distribution of those assets. Trial court determinations under RSA 458:16-a, I, are reviewed de novo, while equitable divisions of property pursuant to RSA 458:16-a, II are reviewed for an unsustainable exercise of discretion. Finally, we note that while determining whether or not a particular asset is marital property under the statute is normally a question of law, determining the value of any given asset is left to the sound discretion of the trial court. See Hoffman v. Hoffman, 143 N.H. 514, 521 (1999) (reviewing trial court’s valuation of marital assets for unsustainable exercise of discretion); cf. In the Matter of Nyhan and Nyhan, 147 N.H. 768, 771 (2002) (“We reiterate the rule that trial courts are free to exercise their sound discretion in establishing an appropriate valuation date for the equitable distribution of marital assets.”).


However, determining that the Trust corpus was not marital property is not the end of the matter because ownership of the corpus is not the only property interest incident to a trust. See Flaherty v. Flaherty, 138 N.H. 337, 340 (1994). As the trust at issue is a charitable one, the parties have no remainder interest, but they did retain the right to receive distributions of interest so long as the Trust corpus exceeded $110,000. Whether the statutory definition of marital property includes a settlor’s right to receive interest from an irrevocable charitable trust is a question of first impression in this state. We hold that such an interest does constitute marital property subject to distribution in a divorce and that such an entitlement has a present value that must be taken into account in the division of marital property.


To the extent the petitioner had a right to receive distributions of interest from the Trust that she was able to assign to the respondent, it would have been reasonable for the trial court to deduce that the right to receive interest would revert to the petitioner upon the respondent’s death. Because the Trust was still $20,000 short of paying interest, and because the petitioner is eight years younger than the respondent, it would have been reasonable for the trial court to conclude that the petitioner’s reversion interest was at least as valuable as the respondent’s interest – if not more so – providing further support for the court’s determination that the respondent’s interest had little or no value in the context of the task before it, which was to equitably divide the parties’ marital property.


Given the terms of the Trust, the size of the Trust corpus, the respondent’s age and poor health, and the petitioner’s failure to present any evidence supporting an alternative value, we cannot say that the trial court unsustainably exercised its discretion by determining that the respondent’s interest in the Trust was negligible.


Blagbrough Family Realty Trust v. A. & T. Forest Products, Inc. & a.

Hillsborough-southern Judicial District

No. 2005-669

Remanded and Affirmed


The plaintiff, Blagbrough Family Realty Trust (Blagbrough), and defendant A & T Forest Products (A & T) cross-appeal an opinion and order of the Trial Court (Lynn, C.J.), on two consolidated cases: (1) an appeal from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Wilton (Town) granting a building permit to A & T; and (2) a petition to quiet title. We affirm in part, reverse in part, and remand.


The Trial Court concluded that Blagbrough had acquired title by adverse possession to a portion of the land it was claiming.  On appeal, Blagbrough argues that the trial court’s ruling is inconsistent with the evidence because the evidence demonstrated that Blagbrough acquired title by adverse possession to a significantly broader area.


In order to obtain title by adverse possession, the adverse possessor must prove, by a balance of probabilities, twenty years of adverse, continuous, and uninterrupted use of the land claimed so as to give notice to the owner that an adverse claim is being made. Flanagan v. Prudhomme, 138 N.H. 561, 571-72 (1994). In addition, adverse use is trespassory in nature, and the adverse possessor’s use of the land must be exclusive. See Kellison v. McIsaac, 131 N.H. 675, 679 (1989); Seward v. Loranger, 130 N.H. 570, 576-77 (1988). The success or failure of a party claiming adverse possession is not determined by the subjective intent or the motives of the adverse possessor. Kellison, 131 N.H. at 680. Rather the acts of the adverse possessor’s entry onto and possession of the land should, regardless of the basis of the occupancy, alert the true owner of the cause of action. Id. In evaluating the merits of an adverse possession claim, courts are to construe “[e]vidence of adverse possession of land . . . strictly.” Bellows v. Jewell, 60 N.H. 420, 422 (1880) (citations omitted).


The trial court found that members of the Blagbrough family: (1) tore down the boathouse in approximately 1964 or 1965 because it was dilapidated; (2) routinely entered the parcel for walks and other recreational activities; (3) permitted their children to play on the parcel; (4) used the parcel as a source of Christmas trees; and (5) cut grass, removed trees, and planted some flowers on the parcel. Accordingly, the question here is whether these activities are sufficient to support a conclusion that Blagbrough obtained title by adverse possession to a portion of Lot A-21-1. We hold that they are not.  The law requires more than occasional, trespassory maintenance in order to perfect adverse title; the use must be sufficiently notorious to justify a presumption that the owner was notified of it. Pease v. Whitney, 78 N.H. 201, 204 (1916). The act of tearing down the boathouse, although not insignificant, was a one-time occurrence that the trial court found took place one or two years after the Blagbroughs acquired the parcel. That act, alone, therefore cannot be considered more than an occasional trespass.


On appeal, A & T argues that: (1) removal of the canal easement language from the deed was not a mistake; and (2) easement rights in the old canal merged under the common ownership of the Dimelings, and cannot spring back.


The trial court then held that since “the Dimelings actually did include a portion of the canal in their grant to Blagbrough, the crossed-out and penned-in language contained in the deed cannot be construed as reflective of an intent not to convey a portion of the canal easement to Blagbrough.” We agree.  Accordingly, we reject A & T’s first argument.


The ZBA ruling at issue relates to Lot A-30, a 12.8-acre parcel located north of the Blagbrough property and bounded on the south by Old Peterborough Road. On September 29, 2003, the Town’s selectmen, after review and comment by the planning board and town counsel, voted to authorize a building permit pursuant to RSA 674:41, I(c) (Supp. 2002) (amended 2004) for A & T to engage in construction on Lot A-30. Blagbrough appealed the selectmen’s decision to the ZBA, which agreed with the selectmen. Blagbrough then appealed the ZBA’s decision to the superior court, which affirmed the ZBA.


Blagbrough argues that the trial court erred by: (1) making certain pretrial rulings relating to a protective order sought by the Town; (2) concluding that Old Peterborough Road is a public highway; (3) ruling that Lot A-30 was grandfathered within the meaning of the zoning ordinance; and (4) misinterpreting RSA 674:41, I(c). At trial, the court permitted counsel for the Town to cross-examine witnesses and to introduce or rely upon evidence not found in the certified record of the ZBA proceedings. On appeal, Blagbrough argues that “once the Trial Court disallowed any discovery on the plaintiff’s RSA 677:4 appeal, it was bound to prohibit the Town from participating substantively in the evidentiary aspects of the December 21 and 22, 2004 hearing in this matter.”  when Blagbrough elicited testimony from witnesses concerning issues germane to the ZBA appeal, the Town was entitled to cross-examine those witnesses through questioning and the use of exhibits. Appeal of Sutton, 141 N.H. 348, 351 (1996).


First, the plain language of section 3.1.19 does not require a “lot of record” to be described in a separate deed. Rather, it simply requires that within any deed conveying the lot, the lot must be described separately.  Second, the word “buildable” does not appear anywhere in the definition of “lot of record.”  Third, we decline Blagbrough’s invitation to hold that a lot with no frontage somehow materially differs from a lot with little frontage for purposes of section 17.2. The plain language of the ordinance applies anytime a lot has “less” frontage. Lot A-30 has less frontage than is required (it has none). Accordingly, section 17.2 applies and we reject Blagbrough’s arguments concerning the trial court’s interpretation of the ordinance. If the Town wishes to change the words or terms of its ordinance, it is of course free to do so. 


With respect to the trial court’s interpretation of RSA 674:41, II, it provides a method for an applicant suffering from practical difficulty or unnecessary hardship – the conditions needed to trigger that provision – to appeal a decision of a local administrative officer. RSA 674:41, I(c) does not conflict with RSA 674:41, II. Rather, it simply sets forth the procedure to be followed by those applicants who cannot, choose not, or need not, demonstrate a practical difficulty or unnecessary hardship. Accordingly, discerning no error, we uphold the trial court’s interpretation of the statutory scheme.


Because we hold that Blagbrough did not satisfy the criteria to acquire a portion of Lot A-21-1 by adverse possession, we remand to the trial court for the entry of an order consistent with that determination. In all other respects, we affirm.



Attorney Amann is the Managing Attorney at Ablitt & Charlton, PC in Massachusetts and focuses his practice on bankruptcy and real estate litigation. He is a member of both the NH and Mass. Bar Associations.




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