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Bar News - January 18, 2008


NH Supreme Court At A Glance: December 2007

By:


Kelleigh Domaingue


CONSTITUTIONAL LAW

 

The State of New Hampshire v. William Decato

No. 2007-178

Merrimack County

December 18, 2007

Vacated and remanded


 

  • Whether the trail court erred in refusing to grant various new outlets access to records and proceedings of probable cause hearings initiated by the State against the defendant pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act.

 

On appeal the Petitioners argue that the trial court unreasonably restricted their right to access SVPA proceedings and records.  The court stated that they have adopted the experience and logic test of the United States Supreme Court in determining whether the right to public access applies to particular proceedings.  Based upon the court's review of prior sexual predator laws, which bear similarity to the SVPA, those proceedings have been presumptively open to the public, but vacated and remanded, for a determination of the extent that the trial court's erroneous application of the experience and logic test controls their analysis.

 

Charles P. Forsberg v. Kearsarge Regional School District

No. 2006-849

Merrimack County

December 18, 2007

Affirmed

 

  • Whether the trial court's denial of the Petitioner's Petition for Declaratory Judgment and Injunctive Relief seeking assistance to amend their Charter on educational funding, was proper.

 

The court held that state law establishes procedural requirements for adopting and amending a home rule charter. Pursuant to the authority, the school district adopted the charter.  Despite the contention of the Petitioners, the statutes do not require that home rule charters provide for the operating budget question to be framed as a yes or no question on the ballot.  Per the state, a default budget was not required, and the matter was affirmed.

 

Verizon New England, Inc. v. City of Rochester

No. 2007-091

Rockingham County

December 28, 2007

Affirmed

 

  • Whether the trial court erred in ruling that the City of Rochester's taxation of           Verizon for its use and occupation of public property violated Verizon's equal protection rights.

 

The City sought to tax Verizon for placement of poles on highways and public ways with the city's permission. Verizon argued that the city was taxing only them, despite the fact that other private utilities similarly use and occupy real estate on public ways. The Supreme Court found that the city was selectively applying the statute – R.S.A. 72:8 – selectively against Verizon, and applied a rational basis review.  Upon that review, the court held that no legitimate interest was furthered by the disparate treatment, and that R.S.A. 72:8 was unconstitutional as applied to Verizon.

 

Petition of Grant Kilton

No. 2007-245

Original

December 31, 2007

Affirmed

 

  • Whether the New Hampshire Department of Health and Human Services erred        in denying Petitioner's application for benefits under the Aid to Permanently Disabled and Totally Disabled Program on the grounds that it failed to meet the severity required which would preclude him from performing substantial gainful activity for 48 consecutive months.

 

The Petitioner timely requested a hearing and was granted one after his initial petition to the department was denied.  After receiving an adverse ruling at that hearing, he was informed that he had 60 days to permit him to submit additional information and medical records to bolster his claims.  He failed to do so, and after that time period had expired, NHLA informed the department that it represented petitioner, and requested that it reconvene the hearing.  The department declined. The petitioner brought the present action alleging, inter alia, that he received inadequate notice of his right to free legal counsel and thus his due process was violated.  The court held that the procedures utilized by the department were appropriate, the risk of deprivation was minimal, and requiring additional administrative notice of such right would be a burden to the department financially.

 

CRIMINAL LAW

 

The State of New Hampshire v. Nelson Njogu

No. 2007-229

Nashua District Court

December 14, 2007

Reversed and remanded

 

  • Whether the trial court erred in ruling that a random license plate check by a police officer, without suspicion of criminal activity, constitutes surveillance i9n violation of R.S.A. 236:130.

The court held that the language of the statute prohibits surveillance using a device that could determine ownership of a vehicle or the identity of its occupants. The State successfully argued that the devices used – a patrol car and radio – do not share the capabilities outlined per the statute, because they do not possess the characteristics of an identifying signal.

 

The State of New Hampshire v. David S. Connor

No. 2006-669

Hillsborough County Northern District

December 14, 2007

Reversed and Remanded

 

  • Whether the trial court erred in convicting the respondent on three counts of arson following a Superior Court jury trial.

 

During expert testimony in the case, the Respondent objected to the testimony as it failed to include testimony of the verification by the criminalist of the fingerprint identification. The criminalist testified about the actions of the verifying technician over the hearsay objections of the Respondent. Because the verification process was described in detail, the testimony was found by the court to have been offered for the truth of the matter. Because there is also no evidence that the criminalist relied upon the verifying technician's findings as a basis for his opinion, the testimony was improper, and could not be construed as harmless upon review.

 

EMPLOYMENT/LABOR

 

Appeal of State Employees’ Association of New Hampshire

No. 2007-112

Public Employees Labor Relations Board

December 6, 2007

Affirmed

 

  • Whether the board erred in permitting untimely representation elections for two newly certified bargaining units within the New Hampshire Department of Fish and Game, as the elections were held less than 120 days prior to budget submission which was prohibited.

 

The court held that though the hearing officer waived the 120-day deadline, he had no authority to waive the contract bar rule, and further stated that the legislature may create exceptions to the statute if it chooses to do so.   However, the court noted that a retroactive application would yield a harsh result of those two bargaining units, and thus held that its decision would only apply prospectively, and only to petitions filed on or after the date of their order.

 

Appeal of Harleysville Insurance Company

No. 2007-146

Compensation Appeals Board

December 7, 2007

Affirmed in part and reversed in part

 

  • Whether the insured should be liable for worker's compensation payment to an injured roofer at her home, where she hired a painting contractor who recommended a roofer, when the roofer subsequently hired the injured individual.

 

R.S.A. 281-A:18 provides that a contactor who subcontracts all or any part of a contract shall bear the liability of the subcontractor of that contract.  However, in order for it to apply, there must be an initial contract between the entity desiring the work to be done and the entity who will perform the work and a second contract that subcontracts all or part of the initial contract. None of the original contract of the painter was subcontracted in the roofing contract, so the statute does not apply. Te board also found, upon a review of the evidence, that there was competent evidence to support the CAB's finding that the painter was not the contractor.

 

Appeal of Tina Silk

No. 2006-461

Compensation Appeals Board

December 14, 2007

Employees Motion for Attorney Fees and Costs Granted

 

  • Whether the employee should be entitled to attorney fees under an earlier version of R.S.A. 281-A:44 when said statute was amended in 2003 to change the definition of the term "prevail."

 

The employer argues that the 2003 amendment should apply retroactively as it is remedial in nature. Since the court has long held that statutes are presumptively intended to operate prospectively, and that amendment would substantively affect the rights and responsibilities of the parties, the prior version applies and the employee is entitled to attorney fees and costs (since the amount of said fees and costs was not disputed by the board). 

 

James M. Stankiewicz v. City of Manchester

No. 2006-911

Hillsborough County Northern District

December 20, 2007

Affirmed in part and reversed in part

 

  • Whether the court erred in denying the Petitioner's motion for summary judgment and granting the cross-motion for summary judgment for the City of Manchester.

 

The Petitioner sough surgery in 2004 for injuries he alleges he sustained on the job in 2000.  The City denied coverage, but allowed him to use sick leave time.  The Petitioner appealed, and was granted worker's compensation coverage, at which time the City requested that it be reimbursed for the sick leave paid out, and would in turn restore the Petitioner's sick leave.  The Petitioner declined, suit was filed, and both parties sought summary judgment. Per ordinance, the City provides that "pending determination of compensation eligibility, the employee may receive sick leave benefits. On a determination of eligibility for compensation benefits, sick leave credit shall be restored." Though the City argues that the statute should be read with the requirements that benefits should not exceed 87%, the court declines to adopt that argument, and reads the initial statute alone. Despite the fact that the Petitioner would end up with a windfall, the wording of the ordinance is clear on its face and consistent with the general rule that remedial statutes are liberally construed in favor of the injured person.

 

FAMILY LAW

 

In re: Juvenile 2006-833

No. 2006-833

Laconia Family Division

December 4, 2007

Petition Denied

 

  • Writ of Certiorari presented as to whether the family division erred as a matter of law when it found that DCYF made reasonable efforts to finalize a permanency plan of reunification between a juvenile and a parent.

 

Petitioner sought Certiorari review after DCYF moved to terminate her parental rights for failure to comply with previous orders requiring her to be on certain medications, and providing information regarding financing the purchase of same. The court held that the information provided was sufficient to constitute the reasonable efforts required per statute, and denied the petition.

 

In the Matter of Jane L. Carr and James R. Edmunds

No. 2006-928

Hillsborough County Northern District

December 6, 2007

Reversed and Remanded

 

  • Whether a father, who attempted to voluntarily relinquish his parental rights and relied upon same, should be held accountable for child support payments, and whether the relinquishment of rights constituted a special circumstance such that a deviation from the uniform child support guidelines was appropriate.

 

The court noted that parties have the right to seek modification of a child support order every three years de novo, that special circumstances to be considered must be economic in nature, and that the fact that he assumed no child rearing expenses indicated would make it contrary to the purpose of the child support statute to allow the father to pay less than the guideline amount. The court stated that the father's lack of contact was not economic in nature, and thus had no relation to the parties' financial situation. Remanded to the trial court for consideration of the requests of the mother.

 

In the Matter of Virginia Cole and Roger L. Ford

No. 2007-190

Strafford County

December 20, 2007

Affirmed

 

  • Whether the Superior Court erred in modifying child support arrearage and including statutory interest prior to service of the motion to modify,  and enforcing a provision in a final divorce decree ordering payment's towards children's post-secondary education expenses.

 

The court held that the modification at issue was not one of child support, but rather modification of arrearage, upon which interest automatically accrues, as child support payments are judgments when they are due and payable. Enforcement of the post-secondary expenses was also affirmed, as the 2004 statute governing payment of college expenses does not apply retroactively. Finally, the father challenged the trial court's ruling on the basis that the record did not show that he had the ability to pay.  The court held that the trial court had left that issue open for determination by motion of either party, and declined to address the issue further.

 

INSURANCE

 

Robert Nenni v. Commissioner, New Hampshire Insurance Department

No. 2007-331

Merrimack County

December 18, 2007

Affirmed

 

  • Whether a grant of summary judgment was appropriate on the grounds that a variable annuity (Polaris II) was approved by the commissioner, and thus was not in violation of RSA 408:52

 

R.S.A. 408:52 prohibits the sale of any variable annuity unless approved by the Commissioner. The Petitioner asserts that since the department did not specifically approve the contract, it is in violation of statute, and thus void as a matter of law.  The Supreme Court held that the department approved the request to offer the Polaris II for sale, and by that approval, the department approved it as a variable contract under R.S.A. 408:52.

 

Leah Barbuto v. Peerless Insurance Company

No. 2006-879

Hillsborough County Northern District

December 18, 2007

Reversed

 

  • Whether the trial court erred in granting summary judgment in favor of the Petitioner in a declaratory judgment action to determine whether Peerless was entitled to reduce the petitioner's uninsured motorist benefits by the amount she recovered in a settlement with an underinsured tortfeasor, whether the policy provided reimbursement for same.

 

Here, the Supreme Court clarified its earlier holding in Kelly v. Prudential Property and Casualty Insurance Company, 147 N.H. 642 (2002), and provided that they did not intend to imply that there is no distinction between setoff ad reimbursement provisions, as such a holding would effectively prohibit insurance policies from both limiting liability on underinsured motorists claims and permitting subrogation or reimbursement. The court held that because the provision in the Peerless policy was unambiguous, Peerless was entitled to reduce its payment.

 

PARTNERSHIP

 

Dr. Seymour Kessler v. Aaron Gleich, Individually

and as General Partner of Fire House Block Associates, LP

No. 2006-851

Merrimack County

December 6, 2007

Affirmed

 

  • Whether the Respondent willfully breached his fiduciary duties to the Petitioner and other limited partners as a result of his failure to hire a managing agent per contract and failing to disclose a default and subsequent foreclosure.

 

The Respondent was the only general partner with a number of limited partners to the partnership. The Petitioner subsequently brought this action on appeal alleging breach of fiduciary duties, to which the Respondent asserted that the Petitioner lacked standing to sue as an individual partner rather than in a derivative action, the trial court erred in allocating the burden of proof to the defendant, the evidence was insufficient to establish that the defendant willfully breached fiduciary duties, and that the defendant's ability to cure the default and stop the foreclosure precludes a finding that he willfully breached his fiduciary duties.  The Supreme Court held that a limited partner may bring an individual action, and since it seemed unlikely that another limited partner would bring a similar action, and the relief requested was solely in equity,  the Petitioner had standing to bring the claim. On the issue of the burden of proof, the court found that even if they assumed error, it was harmless.  On the remaining issues, the court held that the partner's actions were willful, as they were  voluntary and intentional in withholding information from the limited partners and failing to hire a managing agent, though not necessary malicious.

 

PROPERTY

 

Philip J. Tanguay v. Burton H. Biathrow

No. 2006-587

Grafton County

October 17, 2007 (Amended December 4, 2007)

Affirmed

 

  • Whether the trial court erred in ruling that a deed granting land to the Railroad by quitclaim and reserving use of the land created an easement in gross which terminated upon the death of the grantor

 

The court held that the parcel, which was quitclaim deeded to the railroad, but eventually ended up being subdivided and owned by both parties in the above action, could not have intended to create an easement other than one in gross, as the deed provided that the original grantor had the right and privilege to use said land for his own use and benefit, demonstrating a desire to retain a personal, nontransferable interest in the land. 

 

Appeal of Kat Paw Acres Trust

No. 2007-215

Board of Tax and Land Appeals

December 7, 2007

Affirmed

 

  • Whether the board erred in refusing tax exemptions for property improvements to assist persons with disabilities.

 

The board denied the Petitioner's request for tax exemptions for property improvement to assist persons with disabilities.  Upon review, the Supreme Court noted that improvements at issue consisted of a mudroom, hallway to in-law apartment, the apartment itself and related plumbing. The court noted that the improvements must be for the purpose of assisting a persona with a disability in propelling himself or herself, and that there was sufficient information before the BTLA that the proposed renovations were not for that purpose.

 

Terry L. Hersh v. Joseph W. Plonski

No. 2006-782

Belknap County

December 7, 2007

Affirmed

 

  • Whether the trail court erred in quieting title to a paper street over the Plonski's       assertions that the paper street was a public highway, and thus as members of the public, they had rights to it.

 

The court noted that the party asserting that a public road was established had the burden of demonstrating it by a balance of probabilities and that a public highway could have only been created (1) through the taking of land by eminent domain  and the laying out of a highway by some governmental authority; (2) through the construction of a road on public land; (3) through twenty years of use by the public before 1968; or (d) by dedication and acceptance.  The court held that there was no evidence to support a finding that the street was dedicated to the town, either at its inception, or when the parties filed subsequent subdivision plans with the town, as those plans referred to the paper street as rights of way, and never clearly manifested intent to dedicate the street for public use.

 

Ralph R. Joyce v. Town of Weare

No. 2007-074

Hillsborough County Northern District

December 7, 2007

Affirmed

 

  • Whether the trial court erred in dismissing Joyce's petition for review of a decision of the Town of Weare Planning Board for lack of standing.

 

Following the revocation of a purchase and sales agreement between Joyce and another party, the planning board dismissed his petition for subdivision approval, as he no longer had any interest in the property. The court noted that to determine whether a party's interest in the outcome of a planning board proceeding is sufficiently direct and definite to bestow standing, the trial court must conduct a factual inquiry. Since the only interest Joyce had was as a contract vendee, as he no longer has standing as such,  he must show that he has some other sufficient interest in the outcome of the case. Though Joyce asserted that he could acquire an interest in the future through pending litigation, the court held that such a speculative interest does not give rise to the definite interest required.

 

Michael Gill V. Stephen Gerrato

No. 2007-097

Rockingham County

December 20, 2007

Affirmed

 

  • Whether the trial court erred in determining that a lane running through the respondents' properties constituted a class VI highway.

 

The Supreme Court upheld the trial court's determination that the lane was a public highway by prescription, and that several deeds and maps made reference to the lane as a road. Additionally, the court found that the enactment of RSA 53:7 (which required a twenty year use by the public) did not bar the classification of the lane, since the lane was established as a public highway after twenty years of use, well prior to the 1842 legislation enacting RSA 53:7.

 

Dean Lebaron and Marilyn Pitchford, Trustees of the

Dean Lebaron Trust – 1998 v. Joan M. Wight

No. 2006-905

Merrimack County

December 20, 2007

Reversed

 

  • Whether the trial court erred in granting a right of first refusal to the Petitioners of the Respondent's property where the deed language provided that such right be given to lineal descendants.

 

The Petitioners were put on notice of their right of first refusal on August 31, 20006 by letter, and given until October 5 of that same year to exercise it. Before that deadline, the Petitioners filed suit seeking to enjoin the sale. The Respondents filed a motion to dismiss on the grounds that the right of first refusal expired in July of 2006. Though the parties did not dispute such a right existed, the Respondents argued that the deed language provided that it expired fifty years from July of 1956, while the Petitioners argue that the 1971 deed incorporated it by reference and extended it another 50 years to 2021. The court held that what was extended was solely the covenant that the parcels be treated as a single lot, and thus the right of first refusal expired on July 31, 2006.

 

PROFESSIONAL RESPONSIBILITY

 

Douglas’ Case

No. LD-2003-004

Original

December 28, 2007

Attorney Disbarred

 

  • Whether Caroline Douglas should be disbarred for violating rules 1.15(a)(1), 1.15(c), 8.4(c), and 8.4(a).

 

During the course of her personal divorce action with her estranged husband and former business partner. Attorney Douglas informed a client of her and her estranged husband that she should have approximately $49,000 transferred to Ms. Douglas' firm accounts for safekeeping, particularly against any claim by Mr. Douglas for the funds. Ms. Douglas then promptly withdrew the funds from the account.  Though she had previously provided the divorce client with a statement of account indicating a substantial outstanding legal bill, she was found to have misled the client as to the disposition of the funds, and never informed the client that they had been taken out of the trust account, and used for operating expenses. The Supreme Court noted that Ms. Douglas had been suspended for 6 months in a prior matter for withdrawing a client's escrow funds and failing to keep said funds separate, and disbarred her.

 

TORT

 

Karl Kiesman v. Stephen Middleton

No. 2006-817

Northern Carroll County District Court

December 4, 2007

Vacated and remanded

 

  • Whether the trial court erred in granting a final stalking petition where its decision was presented via a check list form.

 

The Supreme Court held that, pursuant to statute, the trial court must make findings on the record that a defendant engaged in two or more specific acts over  a period of time, however short, which evidences a continuity of purpose. Since a checklist form was used and no such finding was made, the trial court's decision was vacated, and the matter remanded.

 

Singer Asset Finance Company LLC v. Deborah Wyner

No 2006-720

Rockingham County

December 4, 2007

Affirmed

 

  • Whether an anti-assignment clause in a settlement agreement was sufficient enough to prohibit assignment of a contract for periodic payments.

 

In 1995, Wyner resolved a medical malpractice claim by entering into a structured settlement agreement. That agreement was late assigned, in violation of the terms of the agreement. Though Wyner sold some of her periodic payments for cash, she continued to receive checks from the assignee. The assignor filed suit for declaratory relief, breach of contract, conversion and unjust enrichment, and Wyner filed counterclaims for unjust enrichment, tortuous interference with contractual relations, and a violation of the Washington con summer protection act.  In reviewing New York law, the court found that assignments in contravention of a prohibition clause are void if the contract contains clear, definite and appropriate language declaring the invalidity of such assignments. The assignor argued that Wyner waived her ability to invoke the clause because she voluntarily entered into purchase agreements, but the court held that the clause was not hers to waive, as it inured to the benefit of the assignee. The court also upheld the assignor's grant of fees for unjust enrichment, as there was an absence of a valid and enforceable contract, and singer could not have waived the anti-assignment clause.

 

Nancy Chick, Individually and as Administratrix of the Estate of David Chick

v. C&F Enterprises, LLC

No. 2007-243

Strafford County

December 14, 2007

Affirmed and Remanded

 

  • Whether the superior court erred in denying the Respondent's motion to dismiss for lack of personal jurisdiction.

 

The trial court had found that the Respondent consented to personal jurisdiction in the state, as it designated an agent for service of process pursuant to the Motor Carrier Act. Since the actions of the defendant may amount to a legal submission to the jurisdiction of the court, ad since nearly all federal and state courts which have considered  the effect of the Motor Carrier Act have held that it enables courts to obtain personal jurisdiction over an interstate carrier in states where the carrier may or may not do business, but in which it has a registered agent for incidents occurring in a third state, that upon designating an agent the Respondent expressly consented to personal jurisdiction.

 

John Maloney, Administrator of the Estate of Helene Maloney

v. Dennis S. Badman, M.D.

No. 2007-173

Carroll County

December 20, 2007

Affirmed

 

  • Whether it was appropriate for the trial court to award the Respondent summary     judgment on the Petitioner's negligence action for wrongful death.

 

The trial court granted summary judgment to Badman on the grounds that there is no tort liability for the suicide of another.  Despite the fact that Dr. Badman prescribed medication which led to the untimely death of the decedent, the decedent had never expressed suicidal desires to the doctor.  It should be noted that the court declined to resolve whether in another case, they might hold that forseeability alone creates a special relationship between a physician and patient sufficient to make the physician liable for the patient's suicide.

 

Kelleigh L. Domaingue is an attorney at the Tober Law office in Portsmouth. She is an alderman in Manchester, vice president and founder of the Southern NH Women’s Business Network, founder and chair of ManchVegas Oscars committee, and in 2006 was one of the Union Leader’s “Forty under 40” choices.

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