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Bar News - November 23, 2007

NH Supreme Court At-a-Glance: October 2007


Administrative Law – Appeals from NH State Liquor Commission Proceedings


Theodore Lothstein, an Assistant Appellate Defender, has litigated over sixty appeals in the NH Supreme Court. He also serves as a Litigation Support Attorney for the NH Public Defender, specializing in drunk driving cases.

Appeal of Omega Entertainment, LLC, No. 2006-122

October 16, 2007



  • Multiple questions raised on appeal concerning the denial of Omega Entertainment’s application for renewal of its liquor license by the State Liquor Commission.


The petitioner Omega Club in Manchester applied for renewal of its liquor license.  The Chief of the Commission’s Bureau of Enforcement recommended denial of the application, citing concerns with “management, violence on or near the premises, record of violations and public safety….”  After conducting hearings, the respondent Commission denied Omega’s application. 


On appeal, Omega briefed seventeen claims of error.  The Court held the commission’s factual findings and decision to deny renewal were supported by sufficient evidence and were not unreasonable or unjust in view of, inter alia, numerous reports of service of alcohol to minors and criminal acts committed by patrons and others on or near the premises.  The other sixteen claims involved the Right-to-Know law, an acknowledged conflict between an agency rule and a controlling statute, and erroneous factual findings, among other things. 


Overall, the Court found that the commission did make “procedural errors in the conduct of the proceedings against Omega….”  Further, the Court characterized those errors to be “troubling,” and “admonish[ed]” the commission for its failure to “avoid such errors in the first instance.”  The Court noted, however, the commission’s efforts to correct its errors, and concluded: “Given the commission’s corrective measures, we cannot say that the commission’s decision to deny Omega’s application for renewal of its liquor license was either unjust or unreasonable.” 


Harry N. Starbranch, Jr., Jeffco, Starbranch & Soldati, of Portsmouth, for the petitioner.  Kelly A. Ayotte, attorney general (Mary E. Maloney, assistant attorney general), for the State.


Criminal Law


State v. Jeffrey Pepin, No. 2006-049

October 16, 2007



  • Whether the trial court properly admitted a tape of a 911 call by the victim under the excited utterance exception to the hearsay rule.
  • Whether the trial court erred in admitting evidence that the defendant threatened to harm the victim five months prior to the charged offenses.  


Pepin was convicted of first degree assault, second degree assault and criminal restraint, but acquitted of two counts of attempted murder, based on a protracted and violent assault and restraint of the victim on the evening of their sixteenth wedding anniversary.   The Court held that the trial court sustainably exercised its discretion in admitting the 911 tape as an excited utterance.  Although the call was made several hours after the defendant severely beat the victim, the Court held that various circumstances demonstrated that her “hysterical” statements during the call constituted a spontaneous verbal reaction to a startling or shocking event.  Notably, the Court held that the startling or shocking event need not be the beating itself.  Instead, it could be a related occurrence such as the fact that she made the call after sneaking out of the house and leaving her baby behind. 


The Court rejected Pepin’s argument that the trial court improperly admitted testimony pursuant to N.H.R. Evid. 404(b) that five months prior to that date, he threatened to shoot the victim in the head if she exposed his extramarital affair.  The Court held that the prior threat was relevant to a non-propensity purpose, Pepin’s intent to kill the victim on the night of the charged offenses. 


Joshua L. Gordon, of Concord for the defendant.  Kelly A. Ayotte, attorney general (Elizabeth A. Dunn, assistant attorney general), for the State.


State v. Christopher Doyle, No. 2006-231

October 17, 2007



  • Whether the trial court erred in denying Defendant’s motion to dismiss the indictment, based on its determination that a statute making it a felony to assault a town officer at an election applied even if the victim was legally disqualified to act as a town officer. 


During a local election, Doyle assaulted Webster.  Although she was acting the supervisor of the checklist for the Town of Windham at the time of the assault, she was actually legally disqualified from doing so by RSA 658:24 because she was also running for a local office.  Doyle brought interlocutory appeal from the trial court’s decision to deny his motion to dismiss the indictment brought under RSA 659:41, which provides: “Any person who shall assault a town, city, or ward officer . . . in the discharge of any duty of his office at any election shall be guilty of a [felony]….”  


The Court rejected Doyle’s argument that because Webster was legally disqualified, she was not a town officer.   The Court held that Webster was still “in possession” of the office of supervisor despite her “legal absence,” and was performing a duty of that office.  In any event, she remained protected as a de facto officer.  The de facto officer doctrine applies where the actor, as here, “was in unobstructed possession of her office at the time of the underlying incident and discharging her duties in full view and acquiescence of the public,” and was not a “mere usurper.”  An exception to the de facto officer doctrine did not apply because Webster was not a party to the proceeding.


Michael A. Ricker, Sherman & Ricker, PLLC, of Portsmouth for the defendant.  Kelly A. Ayotte, attorney general (James W. Kennedy, assistant attorney general), for the State. 


Criminal Law – Sentencing and Criminal Contempt


State v. Richard Hancock, No. 2006-186

October 16, 2007

Conviction affirmed, but sentence vacated, and remanded


  • Whether the trial court committed “plain error” by sentencing the defendant to serve the maximum jail sentence and pay the maximum fine under law, and placing defendant on probation, where the State contended a probation violation could be punished based on a “contempt of court” theory. 


After the jury convicted Hancock of a single Class A misdemeanor, the trial court sentenced Hancock to the maximum jail term, twelve months, and the maximum fine, $2000, and also placed Hancock on probation for two years.  Hancock did not object to that sentence.  On appeal, Hancock claimed the probation component of the sentence constituted plain error under Supreme Court Rule 16-A, because the trial court exhausted all of its sentencing authority by imposing the maximum jail term and maximum fine. 


The Court rejected the State’s argument that the trial court could still use its contempt power to punish the defendant for a violation of probation, and thereby impose additional periods of incarceration above and beyond the maximum sentence.  The Court reasoned that the trial court’s sentencing authority was limited to the sanctions expressly set forth in RSA 651:2, which do not include any authority to punish a probation violation under an indirect contempt theory.  The Court further expressed that the State’s argument raised due process concerns, based on case law that a criminal sentence must make clear in “plain and certain terms” the potential sanctions for violation of the terms of the sentence.


While the Court vacated Hancock’s sentence, it affirmed the conviction, determining that Hancock failed to preserve his claim that the trial court improperly limited his cross-examination of a witness.


Theodore Lothstein, assistant appellate defender, of Concord, for the defendant.  Kelly A. Ayotte, attorney general (Benjamin J. Agati, assistant attorney general), for the State.


Criminal Procedure


State v. Daniel King, No. 2006-418

October 30, 2007


  • Whether the trial court erred in denying King’s motion to suppress eyewitness identification testimony, where King claimed the identifications were tainted by suggestive circumstances and unreliable.


A man exposed his genitals to the fifteen year old victim while she was working the drive-through at Dunkin Donuts.  Shown a photo array, the victim narrowed the field down to two suspects, one of whom was the defendant, but she went on to select a different man’s photograph.  Sitting in empty courtroom while waiting for the district court trial to begin, the victim recognized the defendant when he entered the courtroom in his prison jumpsuit.  She made an in-court identification during her testimony. 


Prior to his de novo jury trial, King moved to suppress the district court identification and any in-court identification by the victim, arguing that the circumstances of the courtroom identification were impermissibly suggestive.  A due process analysis referred to as the “Biggers test” (Neil v. Biggers, 409 U.S. 188 (1972)) governs the admissibility of out-of-court identifications resulting from unnecessarily suggestive procedures.  There was a split of authority as to whether this analysis applied to an in-court identification that occurred under suggestive circumstances, as here. 


In affirming the trial court’s denial of the motion to suppress, the Court sided with the majority of decisions, reasoning that when a suggestive identification is made at trial, the fact finder can observe the witness’s demeanor to assess the reliability of the identification.  Further, the defendant can immediately confront the identification through cross-examination.  These factors, in the Court’s view, rendered the testimony sufficiently trustworthy that any reliability concerns were not of constitutional dimension.  .


Further, the Court rejected King’s argument that the in-court identification was tainted by the photo array.  Again recognizing a split in authority, the Court determined that the prior failure to identify the defendant went to the weight of the in-court identification testimony, not its admissibility.  The Court also held that while trial courts have the discretion to redress reliability concerns through accommodations such as alternative seating arrangements or a pre-trial corporeal lineup, the defendant has no due process right to such procedures.


James T. Brooks, assistant appellate defender, of Concord, for the defendant.  Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general), for the State.


Family Law


In the Matter of Ruth Kenick and Wayne Bailey, No. 2007-420

October 17, 2007



  • Whether the trial court erred in determining that a statute preventing parties from seeking alimony five years after a divorce or nullity applied retrospectively.

The Court affirmed the decision of the Brentwood Family Division to deny petitioner Kenick’s claim for alimony.  The parties divorced in 1996, stipulating that neither would pay alimony to the other.  In 2006, Kenick requested alimony based on a recent medical condition she alleged prevented her from working. 


Until 2001, alimony could be ordered at any time following a divorce.  In 2001, the legislature amended RSA 458:19, I, requiring that petitions for alimony be filed within five years of the divorce or nullification.  That section of the statute was silent as to whether it applied prospectively or retrospectively.  Kenick claimed that she had substantive rights at stake, and therefore retroactive application of RSA 458:19, I would violate Part I, Article 23 of the State Constitution.  


The Court held, however, that RSA 458:19, I was a remedial statute, designed to remedy a perceived defect in the law that allowed divorced parties to seek alimony indefinitely despite the need for closure in divorce proceedings.  Remedial statutes, or statutes affecting procedural rights, are applied retrospectively, while statutes affecting substantive rights are applied prospectively.  The statute did not affect vested rights, because the trial court had never ordered alimony.  Because the statute did not affect substantive rights, its retrospective application to Kenick did not violate her rights under part I, article 23.


Susan V. Denenberg, of Portsmouth, for the petitioner.  Jonathan S. Springer, Bosen & Springer, PLLC, of Portsmouth, for the respondent.


In the Matter of Raymond Larue, Jr. and Tracy (Larue) Bedard, No. 2007-051

October 30, 2007

Reversed and remanded


  • Whether the trial court erred in dismissing Bedard’s petition to modify the parties’ permanent order regarding visitation, where the parties had consistently followed a visitation schedule different from that in their stipulation. 

The parties entered into a stipulation in January 2005 that gave respondent Bedard just one weekday evening and every other weekend with the children, but never followed that stipulation.  Instead, by mutual consent, Bedard had the children with her almost half the time, according to a set schedule.  In August of 2005, Bedard moved to modify the permanent order so that it would reflect the actual visitation schedule followed by the parties.  After a non-evidentiary hearing, however, the trial court denied the motion, reasoning that since the parties had never followed the stipulation, not even at the time it was entered, there was no changed circumstance justifying its modification.


The Court determined that an evidentiary hearing should have been held in order to determine if the parties had agreed to a modification by their conduct.  One of the statutory grounds for modification of a permanent order is if the parties agree to a modification.  Analyzing fundamental principles of contract law, the Court reasoned that contractual obligations may be modified by an agreement that is express or implied, and an implied agreement can be inferred from the conduct of the parties.  The Court reversed and remanded for an evidentiary hearing so that the trial court could make factual findings regarding whether the parties intended by their conduct to enter into a new agreement regarding the visitation schedule.


David C. Wing, Wing & Weintraub, P.C., of Milford for the petitioner.  Andrew J. Piela, Hamblett & Kerrigan, P.A., of Nashua for the respondent.


In the Matter of Christine Costa and Michael L. Costa, No. 2006-518

October 18, 2007

Affirmed in part, vacated in part and remanded


  • Whether the trial court erred in its distribution of the marital property, including the equity in the marital home, respondent’s retirement account, and a joint bank account that petitioner allegedly depleted without authorization from the trial court. 

Petitioner Christine Costa filed for a fault-based divorce, but the master declined to assign fault in the breakdown of the marriage.  Nevertheless, the master awarded petitioner approximately $310,000 of the $320,000 in divisible assets, mostly in the form of the marital home.  The master also, however, required petitioner to assume approximately $252,000 in debt, most of which consisted of the mortgage balance.  The Court found this unequal apportionment to be sustainable, based on the respondent’s superior earning power and petitioner’s role as the primary caretaker of their two minor children. 


In an issue of first impression, the Court analyzed how the Hodgkins formula (State v. Hodgkins, 126 N.H. 711 (1985)) should have been applied to respondent’s retirement savings, where respondent as a Massachusetts state employee had a “hybrid” retirement plan that included both a defined contribution plan and a defined benefit plan.  The former has an ascertainable present value, while the latter (a traditional pension) does not.  The Court set forth the standards to employ in the event that the spouse with the retirement plan has the liquid assets to buy out the interest of the other spouse, which is the preferred scenario, versus the alternative formula to use if the pension payments must be divided at the time that they are received.  Because the trial court did not employ these standards and formulas, the Court vacated an award of one-half of the value of respondent’s annuity account and remanded for a hearing on the issue.


With respect to the remaining issues on appeal, the Court affirmed the trial court’s order that respondent pay an outstanding arrearage on sums owed to petitioner within 30 days; and held that the trial court unsustainably exercised its discretion when it failed to make factual findings requested by respondent regarding the petitioner’s alleged unauthorized depletion of a joint bank account holding some $27,000 at the time of the separation.


Linda A. Theroux, of Merrimack, for the respondent.  Jane M. Schirch, Shanelaris & Schirch, PLLC, of Nashua for the petitioner. 




EnergyNorth Natural Gas, Inc. v. Certain Underwriters at Lloyd’s & a., No. 2006-745

October 18, 2007

Three certified questions answered.


  • United States District Court for the District of New Hampshire certified several questions relating to allocation of damages among multiple triggered insurance policies in a long-term environmental pollution case.


EnergyNorth is the successor to a company that operated a manufactured gas plant (MGP) in Manchester between 1852 and 1952.  Decades of inadvertent leaks and spills from gas containers and pipes discharged hazardous waste that caused continuous property damage as it migrated through the soil and groundwater.  Plaintiff EnergyNorth brought declaratory judgment actions against insurers that provided policies between 1939 and 1986, to recover the substantial cleanup costs already incurred and to be incurred in the future. 


The insurers provided various tiers of coverage during various time periods, and “in long-term environmental pollution cases, correlating degrees of damage to particular points on the loss timeline may be virtually impossible….” (Quotations omitted).  After all other insurers settled, American Re-insurance Company, provider of a third-tier excess liability insurance policy of two million in excess of three million underlying coverage, declined to indemnify EnergyNorth.


The first two certified questions required the Court to resolve an issue of first impression:  When an insurance policy is triggered by the continuous migration of toxic waste that began before coverage commenced and continued after coverage ended, and the evidence will not permit a determination as to when specific property damage occurred, is the insurer jointly and severally liable for all of the resulting property damage up to the limits of the policy, or should some other allocation method be used.


Ultimately, the Court rejected joint and several liability. The Court also expressed a preference against pro rata allocation, and in doing so, it rejected the methods of allocation apparently followed by the vast majority of federal and state jurisdictions.  Instead, the Court favored a “pro rata by years and limits” allocation followed by the New Jersey Supreme Court.  The Court did so based on public policy considerations, after determining that neither the language of the policies and their drafting histories, nor general principles of insurance contract interpretation, shed light on the unusual issues arising in long-term environmental pollution cases.  The Court’s rejection of joint and several liability meant that America Re paid no indemnity, because the damages at the site were not even “remotely sufficient” to exhaust the limits underlying the American Re policy if allocated according to any pro rata allocation method. 


The Court answered the final certified question by ruling that the insured has prevailed and is entitled to reasonable attorneys’ fees and costs if he has obtained rulings that require an excess insurer to indemnify it, even if ultimately the damages do not reach a level where the excess insurer actually has to pay any indemnification.


Bruce W. Felmly, McLane, Graf, Raulerson & Middleton, P.A., of Manchester, for the plaintiff. Mark G. Sheridan, Bates & Carey LLP, of Chicago, Illinois argued the case for defendant American Re, with  Edmund J. Boutin, Boutin & Altieri, P.L.L.C., of Londonderry on the brief.  


Jennifer Philbrick & a. v. Liberty Mutual Fire Insurance Co., No. 2007-042

October 31, 2007



  • Whether trial court erred in granting summary judgment for plaintiff based on its belief that plaintiff’s homeowner’s insurance policy covered losses based on a personal injury lawsuit arising out of plaintiff’s son’s sexual molestation of other children while babysitting.

The Carriers’ minor son sexually molested the Philbricks’ children while babysitting.  The Philbricks sued the Carriers alleging, inter alia, negligent supervision and negligent entrustment.  Liberty Mutual denied coverage to the Carriers based on three grounds: 1) the events did not arise out of an “occurrence” as defined in the homeowner’s policy; 2) the policy excluded bodily injury “expected or intended by one or more insureds,” and 3) it excluded bodily injury “[a]rising out of sexual molestation.”  The Philbricks and Carriers jointly filed for a declaratory judgment regarding policy coverage, and the trial court granted summary judgment in their favor, on the basis that the events constituted an occurrence, and the latter two policy exclusions were ambiguous and thus construed to provide coverage. 


The Court reversed, ruling that summary judgment should have been granted in Liberty Mutual’s favor based on the “arising out of sexual molestation” exclusion.  The Court rejected the Philbricks’ argument that the claims were based on their negligence rather than their son’s sexual molestation.  While the Court recognized a split of authority on this issue, it held that the victims’ injuries were directly caused by an act excluded under the policy, sexual molestation.


Daniel J. Corley, McGrath Law Firm, P.A., of Concord for the plaintiffs.  Andrew D. Dunn and Holly J. Kilibarda, of Devine, Millimet & Branch, P.A., of Manchester for Liberty Mutual.


Steven Webster & a. v. Acadia Insurance Co., No. 2006-945

October 17, 2007



  • Whether trial court erred in granting summary judgment for the insurer based on its view that damage to the structural materials of a middle school arising out of the installation of roofing and insulation did not constitute “property damage” as required by the insurance policy.


The Winnesquam Regional School District (WRSD) contracted with plaintiffs to install roofing and insulation on its middle school.  Defects in the work caused purlins, part of the original structure of the building, to buckle, bow and separate from the roofing work.   WRSD sued plaintiffs, who timely noticed their insurance carrier, Acadia, and requested a defense and coverage.  Acadia denied the requests, and the trial court granted summary judgment in Acadia’s favor, based on its view that the suit did not allege property damage as required by the policy, and fell within an “impaired policy” exclusion to coverage.  


The Court reversed, reasoning that first, the buckling and bowing of the purlins constituted property damage.  The Court interpreted that contract language to mean any “alterat[ion] in appearance, shape, color, or some other material dimension” of property that is “separate and distinct from the plaintiffs’ work product ….”  The Court further determined that the buckling of the purlins constituted an “occurrence,” interpreted the policy to require no minimum amount of damage, and rejected defendant’s argument that purlins had become “incorporated” into the plaintiffs’ work product.   The finding of physical damage to the purlins precluded application of the impaired policy exclusion. 


R. James Steiner, D’Amante Couser Steiner Pellerin, P.A., of Concord, for the plaintiffs.  Naomi L. Mooney and Jill A. DeMello, Getman, Stacey, Schulthess & Steere, P.A., of Bedford, for the defendant.


Professional Responsibility


Grew’s Case, No. LD-2006-004

October 30, 2007

Respondent suspended two years


  • Court determines the appropriate term of suspension from the practice of law, where respondent committed insurance fraud arising out of his own personal automobile accident, but mitigating circumstances were present.


Respondent attorney committed fraud by falsely claiming to his insurer that he was driving a different vehicle than that involved in the collision, and also attempting to induce the other driver to support the fraudulent claim.  He was indicted for felony insurance fraud, and pled guilty to a misdemeanor with a suspended jail sentence.  The Attorney Discipline Office (ADO) appealed from the decision of the Supreme Court Professional Conduct Committee (PCC) to suspend the respondent from the practice of law for six months. 


Applying the four-factor test from the American Bar Association’s Standards for Imposing Lawyer Sanctions, the Court noted that the first three factors supported disbarment.  The conduct was sufficiently egregious to constitute a crime, was intentional, and caused substantial injury to the victims and the public.  The Court agreed with the ADO that Grew’s inexperience as a lawyer did not constitute a mitigating factor, where the offending conduct did not result from inexperience.  The Court further agreed with the ADO that the fact that Grew was acting as a private citizen at the time of the misconduct was not a mitigating circumstance. 


The fourth factor, the presence of mitigating circumstances, saved Grew from disbarment.  Of note, the Court rejected the ADO’s view that Grew’s substantial personal and financial difficulties, including illness in his family, did not constitute a mitigating factor.  The Court felt it was just to distinguish those acts of malfeasance motivated by “severe personal and financial stress,” from those motivated by simple greed.  While the six month suspension recommended by the PCC was too lenient, disbarment was too harsh.  After comparing the circumstances to those of other PCC appeals, the Court suspended respondent from the practice of law for two years.


Landya B. McCafferty, of Concord, for the Attorney Discipline Office.  Russell F. Hilliard, Upton & Hatfield, LLP, of Portsmouth for the respondent. 


Probate – Misappropriation of Funds by Guardian


In re Guardianship of Robert D. Dorson, No. 2007-031

October 31, 2007



  • When funds are misappropriated from a ward, should the probate court award damages based on a prejudgment interest theory pursuant to RSA 524:1-b, or may the court exercise its discretion to order appreciation damages, based on the gains the funds would have realized if they had remained invested?


The Probate Court appointed Nelson Dorson as guardian for the ward, Robert Dorson.  Nelson obtained a surety bond from respondent Peerless Insurance Company / Liberty Mutual (Peerless), then absconded with $137,206.11 of Robert’s estate.  Successor guardians (petitioners) asked the probate court to surcharge Nelson for the funds absconded, plus damages, to include “lost income from the amounts improperly withdrawn.”   Petitioners argued that the lost income should be measured based on the gains that the investments would have made if left in their accounts.  Peerless argued that damages should be limited to prejudgment interest at the statutory rate, as in the case of a personal injury damage award.   The probate court sided with petitioners, and the Court affirmed. 


The Court held that “any surcharge imposed by the probate court, regardless of whether it took the form of interest or loss appreciation, was part of the debt or loss to the estate and did not constitute prejudgment interest governed by RSA 524:1-b….”  A surcharge that took into account lost appreciation of investments was appropriate because it put the ward back in the same position he would have been in if no misappropriation had occurred.  The Court noted that it “need not speculate” what award would have been appropriate if the ward’s assets had depreciated in the time period following the misappropriation, but also noted in a different section of the opinion that equitable remedies may be designed not only to compensate the ward but also to “deter other trustees from acting similarly in the future.” 


Nicholas R. Aeschliman, of Portsmouth, for the petitioners.  James E. Owers of Sulloway & Hollis, P.L.L.C., of Concord, with Kelly Ovitt Puc on the brief, for respondent Peerless Insurance Co.


Property Tax


Appeal of Patrick Walsh & a. (N.H. Board of Tax and Land Appeals), No. 2007-189

October 17, 2007



  • Whether the New Hampshire Board of Tax and Land Appeals erred in dismissing taxpayers’ applications for tax abatements, based on taxpayers’ unresponsiveness to requests to inspect their buildings.


The taxpayer-petitioners filed applications for tax abatements with the respondent town of North Hampton, claiming that the tax assessment on their land and buildings was disproportionately high. The taxpayers evaded repeated attempts by the Town to arrange for an inspection of the buildings, which ultimately led to the denial of the abatements by the town and dismissal of the taxpayers’ appeals by the New Hampshire Board of Tax and Land Appeals.  The taxpayers raised five issues on appeal, but three were procedurally barred because the taxpayers failed to move for reconsideration pursuant to RSA Chapter 541, a requirement intended to allow administrative agencies to correct their own mistakes prior to any appeal. 


With respect to the remaining issues, the Court first rejected the taxpayers’ contention that the record did not support the board’s finding that they were “unresponsive” to requests for inspections, because the taxpayers had numerous opportunities to schedule inspections but never did so.   Second, the Court relied on RSA 74:17, II and RSA 74:11 in determining that the board acted properly in dismissing the appeals based on the town’s inability to inspect the properties.  The purpose of the inspection was to make an appraisal, which was necessary to evaluate the taxpayers’ underlying claim that their tax assessments were disproportionate. 


Finally, the Court rejected the taxpayers’ claim that inspection of their buildings was not necessary because the board could have simply evaluated whether their land assessments were disproportionate.  The taxpayers had the burden of proving that their taxable properties were in the aggregate overvalued and the total assessments excessive.  Thus, the taxpayers attempt to separate buildings from land failed: “If the assessed value of one property is high, but the average assessment on all properties owned by the taxpayer is proper, the taxpayer will not be entitled to an abatement since justice does not require the correction of errors of valuation whose joint effect is not injurious to the appellant.”


Thomas M. Keane and Douglas W. Macdonald, Keane & Macdonald, P.C., of Portsmouth for the petitioners.  Bernard H. Campbell, Beaumont & Campbell Prof. Ass’n., of Salem, for the respondent.


Real Property


Phillip J. Tanguay & a. v. Burton J. Biathrow & a., No. 2006-587

October 17, 2007



  • Where grantor of an 1846 quitclaim deed retained bordering land and included language in the deed giving him the “right and privilege to use [the conveyed] land for his own use and benefit,” did the deed create an easement appurtenant, or only an easement in gross.


The petitioners (Tanguays) owned property to the north of the abandoned Northern Railroad corridor in Lebanon.  The respondents (Biathrows) owned property to the south of the corridor.  In 1846, Benjamin Colburn, owner of all of this land, conveyed the southern parcel to the Railroad by quitclaim deed “for the Benefit of grading and repairing said road….”  The deed, however, reserved Colburn’s “right and privilege to use such land for his own use and benefit not interfering with the above-granted privilege in any way….”  


The Tanguays claimed that this language of the deed created an easement appurtenant, and that the northern parcel retained by Colburn and now owned by them constituted the dominant estate.   The trial court, however, granted the Biathrows’ petition to quiet title, holding that the deed created only an easement in gross for Colburn’s personal use, and the Court affirmed.


The Court primarily relied on the terminology of the deed, “for his own use and benefit,” as creating a mere personal interest, as opposed to the language commonly associated with an easement appurtenant, “for the benefit of the property retained….”   The Court further reasoned that the deed did not expressly refer to a dominant estate.  Finally, the Court construed the “grading and repairing” language to be a mere statement of purpose, and not a limitation placed upon the Railroad’s use of the land.   


John B. Loftus, III, Decato Law Office, of Lebanon, for the petitioners.  William K. Koppenheffer, Janson & Koppenheffer, LLP, of Lebanon for the respondents.


Tax Law: Real Estate Taxation


Green Meadows Mobile Homes, Inc. & a. v. City of Concord, No. 2007-065

October 31, 2007



  • Whether the trial court correctly determined that the petitioners, owners and operators of mobile home parks, could be assessed real estate tax for manufactured housing units not connected to utilities that the petitioners offered for sale within their parks.


The petitioners, owners and operators of mobile home parks, sought a declaratory judgment precluding the respondent City of Concord’s practice pursuant to RSA 72:7-a, I of taxing them for manufactured housing units which petitioners offered for sale within their parks, where the units were not yet connected to utilities.  The trial court had rejected petitioners’ claim that they were “dealer[s]” of such units and therefore excluded from real estate taxation under that statute. 


The Court affirmed, based upon a careful examination of the legislative history of this and related statutes which revealed that the term “dealer” was limited to those engaged in the business of such units for whom the units constituted their “stock in trade.”  Because petitioners were in the business of owning and managing manufacturing home parks, and only incidentally purchased and sold new units when a vacancy arose, they were not “dealers” within the meaning of RSA 72:7-a, I.  The Court also rejected petitioners’ argument that because the real estate transfer tax exempted those units not connected to utilities, that the real estate tax must similarly provide for that exemption. 


Finally, the Court affirmed the trial court’s denial of petitioners’ request for a declaration that RSA 80:2-a, placing limits upon the relocation of buildings and structures taxable as real estate, does not apply to them as owners and managers of manufactured home parks.  Rather, the Court held that this statute prohibits anyone from moving or relocating buildings or structures without first meeting the statutory conditions.  The Court noted that petitioners have an alternative means of avoidance of property tax liability under RSA 205-A:4, a, VII  where petitioners obtain a writ of possession over an abandoned unit and subsequently sell it, but the proceeds do not cover the outstanding tax liability. 


Paul F. Cavanaugh, city solicitor, of Concord for the respondent.  Mark H. Puffer, Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord for the petitioners. 



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