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Bar News - June 22, 2007


NH Supreme Court At-a-Glance: May 2007

By:

           

Because of the large number of cases decided by the Supreme Court in May 2007, this is Part 1 of the Supreme Court At-A-Glance summaries for that month. Part 2 will appear in the July 6, 2007 issue of Bar News. Summaries for the entire month can be found online at www.nhbar.org, under “Publications.”

 

 

Contract

 

East Derry Fire Precinct v. Nadeau & a., No. 2005-855

May 11, 2007

Affirmed

 

  • Whether the trial court erred in rescinding an employment separation agreement between plaintiff and defendant. 
  • Whether the trial court erred in finding the defendant liable for repayment of a wrongfully distributed severance payment.
  • Whether the trial court erred in ruling that defendant was not entitled to indemnification.

 

The trial court found considerable evidence of fraud and misrepresentation to allow the rescission of the contract. 

           

Regarding the failure of the court to dismiss the defendant from being a party to the suit, the defendant did not provide an adequate record for the court to review the ruling.

           

On the issue of indemnification, the issue was not preserved for court review and the defendant did not meet his burden of proving plain error.  The defendant’s testimony regarding whether or not he would have taken the new job offer was found “suspect” by the court.

 

Czumak & a. v. New Hampshire Division of Developmental Services & a., No. 2006-092

May 3, 2007

Affirmed in part and reversed in part

 

  • Whether the trial court erred in not requiring the Division of Developmental Services to provide funds not provided for in the terms of the contract with the petitioner; and 2)
  • Whether the trial court erred when it required the Division to make payments that were not a term of the contract?

 

In an action to enforce a settlement agreement the court, after a finding of good faith on the part of the respondent, analyzed the terms of the contract de novo considering the situation under which the contract was negotiated, the plain language of the contract and the reasonable meanings of the terms.  Here, the court noted that the contract was specific where it required the respondents to use their best reasonable efforts to secure additional funding that would allow the petitioner to remain in an agreed upon facility.  But, respondents were not required to absolutely provide all funding needed.  The guardians, on behalf of the petitioner, had sought a ruling that would require the respondents to provide funding, not just use reasonable efforts to attempt to provide the funding.

           

The trial court’s decision to require DDS to pay arrearages incurred by the stay at the facility was reversed because that decision would impose conditions not contained in the contract.  The equity powers of the trial court do not permit it to disregard the clearly expressed terms of the contract nor force upon parties obligations that were not voluntarily assumed.

 

Criminal

 

State v. Pepin, No 2006-458

May 1, 2007

Reversed and remanded

 

  • Whether the “chirping” of tires, without more, constitutes a reasonable suspicion that a crime has been committed which would permit a police officer to undertake an investigatory stop?

 

The Court analyzed the reasonable facts available to the police officer at the time of the stop.  The Court found that chirping tires merely was not a violation of the road racing statute.  The court held further that chirping, in addition to being in what was described as a “club zone,” was not enough evidence to support a stop for suspicion of driving while under the influence of alcohol or drugs.

 

State v. Craveiro,  2006-386

May 10, 2007

Reversed and remanded

 

  • Whether the stop of a vehicle was justified under the community caretaking exception where the vehicle was driven along a street that had up to one and one-half feet of water on the road?

The defendant asked the court to find that the community caretaking exception should not apply to motor vehicle stops. The court rejected the argument but did find that the stop was not justified under that exception. The facts did not justify the stop as a routine and good faith attempt to safeguard the defendant’s property.

 

State v. Gagnon, No. 2006-373

May 10, 2007

Reversed

 

  • Whether the court erred when it took judicial notice of a “way”?

 

Yes.  Where the court took discretionary judicial notice of a fact that the pavement around the fire station was a way, it should have identified the source upon which it relied.   Doing otherwise deprived the opposing party the ability to dispute the information.  Additionally, in reviewing the transcript of the trial, the trier of fact could not have found the evidence sufficient to find that the paved area was a way.

 

State v. Brum, No. 2006-086

May 10, 2007

Affirmed

 

  • Where the defendant was charged with a sexual assault that occurred in 2004 and raised consent as a defense, is he allowed to cross examine the witness/victim about conflicting statements she made about a reported 1996 assault in 1996 and then again in 2005 about the 1996 incident?

 

The victim made a report to police about an assault in 1996.  In 2005, the victim wrote out a statement about the 1996 assault.  The trial court in all probability would not have allowed the witness to be questioned about the 1996 if it were not for the occurrence of the 2005 report pertaining to the same incident.  However, since the 2005 report existed, the defendant was allowed by the trial court to ask a limited number of questions pertaining to the differences in the reports. The court found that the trial court acted properly in allowing a limited cross-examination regarding differences in the reports. The court held that the trial court’s limits on an inquiry of the victim did not violate the defendant’s rights under the State Confrontation Clause. The court did not consider issues not preserved for appeal.

 

State v.Balukas, No. 2006-107

May 3, 2007

Affirmed

 

  • Whether the State improperly charged the defendant for violations of a protective order as class B felonies instead of class A misdemeanors.

 

The court held that the plain language of RSA 169-C:21-a, makes it clear that charges made under certain provisions of the law may be brought as class B felonies.  The court rejected the defendant’s contention that the legislative history would support his interpretation so as to prohibit bringing the charges as felonies. The court will not review legislative history when the language of the statute is plain.

 

Defamation

 

Thomas v. Telegraph Publishing Co. & a., No. 2005-751

May 1, 2007

Affirmed in part, reversed in part, vacated in part and remanded

 

  • Whether the trial court should have granted summary judgment to the  defendants under various theories of  defenses to defamation?

 

The decision of the court read like a treatise on defamatory defense. The court analyzed different theories of defense to defamatory actions.  The court adopted the specific libel-proof plaintiff doctrine. The doctrine pertains to a plaintiff who has a reputation on the matter at issue that is so bad that further statements regarding that trait, even false and malicious ones, could not further damage his reputation. If the plaintiff met those requirements, a suit would not be actionable. The court advises that caution should be observed in allowing this defense.  Based on the facts of the case, the trial court erred in granting summary judgment on these grounds.

 

The court also addressed the fair report privilege, substantial truth doctrine, statement of opinion doctrine, limited purpose public figure doctrine, and qualified privilege doctrine.  The court reversed the grant of summary judgment on the defense of libel-proof plaintiff. It vacated the ruling on the use of qualified privilege to the police defendants.  It affirmed all other aspects of the trial courts ruling.

 

A motion to add police officers personally to the suit was denied based upon the theory that adding them two years after the writ was filed was essentially the equivalent of adding new parties. 

 

Discrimination

 

Maher Mahmoud v. Irving Oil Corporation, No. 2006-644

May 3, 2007

Affirmed

 

The New Hampshire Commission on Human Rights found no probable cause on a discrimination complaint filed by the plaintiff.  The superior court affirmed the Commission’s findings.  The plaintiff appealed to the supreme court.  The appeal did not include any statement of questions presented not did it contain any specific references to any portion of the record where the issues on appeal were raised and preserved. The court dismissed the appeal.

 

Right to Know

 

ATV Watch v. N.H. Department of Resources and Economic Development, No. 2006-020

May 11, 2007

Affirmed in part, vacated in part, remanded; request for attorney’s fees denied

 

In this case the plaintiff, a non-profit organization which monitors the use and development of all terrain vehicle trails in New Hampshire, requested certain information pertaining to the purchase by the Department of property in the Berlin area.  The Department provided some requested material after some delay and withheld other material.  The trial court dismissed or denied motions for injunction, attorney’s fees and costs and eventually dismissed the remainder of the petition by the plaintiff.  The court held that the trial court did not err in denying the extraordinary relief of an injunction because the State did not own the property in question at the time of the petition.  With regard to costs, the court concluded that the trial court applied an erroneous standard for assessing costs.  The order denying costs was vacated.  The standard that the trial court should have used should have involved the time when the information was provided – an absolute standard.  Factors that the trial court considered such as reasonable speed and harm were not factors for consideration.  The court ruled that because the plaintiff was not represented by counsel until after the department disclosed all of the documents to which ATV was entitled, there would be no award of attorney’s fees.  The case was remanded to the trial court for determination of costs and the lawfulness of the department’s conduct in delaying disclosure of the documents.

 

Taxes

 

Appeal of City of Nashua, No. 2006-631

May 11, 2007

Reversed

 

  • Whether the Roman Catholic Bishop of Manchester should have been granted a religious tax exemption for property it owned.

 

No. The property was formerly an+ active church building used for official church services.  It was deconsecrated, parishioners became members of another church and the building was used to house religious items such as altars and marble pulpits among other items.  According to the plain language of RSA 72:23 the building must be used for official church services to be eligible for special tax treatment.  The mere storage of religious objects in a deconsecrated church, on a temporary basis does not constitute religious purposes.  Nor could the fact that the building was used as a Neighborhood Watch site be considered religious purpose.

 

Zoning

 

Melvin Severance & a. v. Epsom, No. 2005-868

May 1, 2007

Affirmed

 

  • Whether the Superior Court erred when it reversed a decision of the Epsom Zoning Board of Adjustment that barred the plaintiff’s from using their dwelling as a year-round residence?

 

The court’s decision rested on the facts of the case, the terms of the particular ordinance, and the effect the use would have on the surrounding properties.  In this case, under the terms of the ordinance, the increased use of the home from seasonal to year-round did not constitute an improper expansion or enlargement on the non-conforming use that had been grandfathered years earlier.  The zoning ordinance did not distinguish seasonal residential use from year-round residential use.  It was also clear and unambiguous that the plaintiff’s property is a single family residence that is a permitted use.

 

Michael Ogonowski was admitted to the New Hampshire Bar in 1996.  He would appreciate your questions or comments regarding these summaries at mogonowski@rivier.edu.

 

 

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