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Bar News - March 7, 2008

NH Supreme Court 3JX Orders


A&B Lumber Company, LLC v.
Henry Hoppe & a.,

The court on October 11, 2007, issued the following order:

The defendants, Henry and Josephine Hoppe, appeal the denial of their request for a directed verdict and the award of attorneyís fees and costs to the plaintiff, A&B Lumber, LLC. They argue that: (1) the plaintiff failed to prove all the elements of estoppel; (2) the plaintiff failed to prove unjust enrichment; (3) the trial courtís instruction on estoppel was erroneous; and (4) the trial court erred in awarding attorneyís fees to the plaintiff. We affirm.

A party is entitled to a directed verdict only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand. DeBenedetto v. CLD Consulting Engírs, 153 N.H. 793, 812 (2006). Our review of the issue is extremely narrow; absent an unsustainable exercise of discretion, we will not overturn the trial courtís decision. Id. We will uphold the denial of the motion where sufficient evidence in the record supports the ruling. Id.

The essential elements of estoppel are: (1) a representation or concealment of material facts; (2) the representation must have been made with knowledge of the facts; (3) the party to whom the representation was made must have been ignorant of the truth of the matter; (4) it must have been made with the intention that the other party should act upon it; and (5) the other party must have been induced to act upon it to his prejudice. Town of Nottingham v.

Lee Homes, Inc., 118 N.H. 438, 442 (1978).

The defendants argue that there was no representation made with the intention of inducing the plaintiff to rely upon it. We have previously held that an estoppel may arise from silence or inaction as well as from words or actions. See Concrete Constructors, Inc. v. Harry Shapiro & Sons, Inc., 121 N.H. 888, 892-93 (1981). Because there was evidence in the record from which the jury could find in favor of the plaintiff, we find no error in the trial courtís denial of the defendantsí request for a directed verdict on the issue of estoppel.

The defendants also contend that the plaintiff failed to present sufficient evidence to prevail on its claim of unjust enrichment. A trial court may require a party to make restitution for unjust enrichment if he has received a benefit that would be unconscionable for him to retain. Kowalski v. Cedars of Portsmouth Condo. Assoc., 146 N.H. 130, 133 (2001). To recover under a claim of estitution, the party must show that there was unjust enrichment either through wrongful acts or passive acceptance of a benefit that would be unconscionable to retain. Id.

The trial courtís May 16, 2006 order indicates that the jury returned a verdict for the plaintiff on a general jury verdict form. The evidence presented at trial established that: (1) the plaintiff provided lumber for the construction of the defendantsí home; (2) the plaintiff never received payment for the lumber; (3) there were sufficient funds in the construction loan account to pay the plaintiff when the lack of payment was made known; (4) defendant Henry Hoppe told the plaintiff to contact Hoppeís bank for payment when the plaintiff contacted him; (5) Hoppe advised the bank not to pay the plaintiff unless the plaintiff sued; and

(6) when completed, the defendantsí house was valued well in excess of the amount of money spent to construct it. Based upon our review of the record, we conclude that the evidence supports a finding of unjust enrichment.

The defendants also argue that the trial court erred in awarding attorneyís fees to the plaintiff. We review a trial courtís award of attorneyís fees under an unsustainable exercise of discretion standard, giving deference to the trial courtís decision. LaMontagne Builders v. Brooks, 154 N.H. 252, 259 (2006). We will affirm the award unless the discretion is exercised for reasons clearly untenable or to an extent clearly unreasonable to the prejudice of the objecting party; if there is some support in the record, we will uphold the award. Id.

In light of our rulings above, we need not address the alleged error in the trial courtís instruction.

The trial court awarded attorneyís fees to the plaintiff after finding that the defendantsí behavior had been patently unreasonable. In support of its finding, the trial court cited the defendantsí knowledge that their contractorís sub-contractors were not being paid, the Hoppesí continued execution of construction lien waiver affidavits despite this knowledge and their instructions to the bank not to pay the plaintiff unless it sued. Given all of the evidence presented, we find no error in the award.

The plaintiff has requested an award of attorneyís fees for this appeal. Supreme Court Rule 23 provides that we may award attorneysí fees if we deem an appeal to have been frivolous or made in bad faith. We have reviewed the record before us and conclude that such an award is merited in this case. Accordingly, the plaintiff shall file with this court a statement of fees incurred in this appeal within fifteen days of the date of this order. To the extent that the defendants may contest the reasonableness of the requested fees, they may file an objection within ten days following plaintiffís submission.


DALIANIS, DUGGAN and HICKS, JJ., concurred.

Eileen Fox, Clerk



In re L.B.

The court on October 18, 2007, issued the following order:

The respondent, L.B., appeals her involuntary commitment. She argues that because the Stateís petition seeking her involuntary commitment failed to meet the standards set forth in RSA 135-C:36, I (c ), her involuntary commitment should be invalidated. We affirm.

RSA 135-C:36, I (c ) (2005) provides that a petition for involuntary admission shall include a "certificate from a physician who is approved by either a designated receiving facility or a community mental health program approved by the commissioner, who has examined the person sought to be admitted within 5 days of the date the petition is filed and who agrees that, based on this examination, such person satisfies the standard set forth in RSA 135-C:34."

In this case, the certifying physician testified that: (1) he had met the respondent on previous occasions including two competency evaluations; (2) he had reviewed her mental health records; (3) she had discussed her "bizarre" beliefs with him; (4) he was aware of her conduct at the Strafford County Jail that led to her indictment for aggravated assault; (5) he had observed her behavior at a hearing on October 2, 2006, within five days of the date the petition was filed; (6) he had also spoken to her briefly on the day of that hearing and she had suggested "legal notions"; and (7) she had then declined his request that she and her counsel meet with him.

While some of this information predated the October 2 examination that the State cited in its petition for involuntary commitment, it gave the certifying physician background information as he assessed the respondentís behavior on October 2. That she refused to speak to him for competency purposes does not require a conclusion that no examination was conducted. If we were to so conclude, any individual who might be the subject of a petition for involuntary commitment could avoid the commitment by simply refusing to speak to a physician who sought to conduct an examination pursuant to RSA 135-C:36. We decline to construe the statute in a manner that would lead to such an absurd result. See In re Guardianship of E.L., 154 N.H. 292, 300 (2006).

Based upon the record before us, we conclude that the certifying physicianís examination of the respondent satisfied the requirements of RSA 135-C:36. Accordingly, we affirm.


DALIANIS, GALWAY and HICKS, JJ., concurred.

Eileen Fox, Clerk



State of New Hampshire v.
Oliver Hooper

The court on October 19, 2007, issued the following order:

The defendant, Oliver Hooper, appeals his convictions for two counts of criminal threatening, two counts of aggravated felonious sexual assault, one count of kidnapping, two counts of simple assault and one count of sexual assault. He argues that the trial court erred in: (1) limiting cross-examination of the Stateís expert witness; (2) allowing the State to call expert witnesses without full disclosure within the discovery deadlines; (3) denying his motion to suppress; and (4) allowing the State to introduce evidence of the defendantís other bad acts. We affirm.

The admissibility of evidence is generally within the trial courtís sound discretion. State v. Morrill, 154 N.H. 547, 550 (2006). Because the trial court is in the best position to gauge the prejudicial impact of particular testimony, we will not upset its ruling absent an unsustainable exercise of discretion. Id.

The defendant argues that the trial courtís decision to exclude evidence of the victimís prior sexual conduct violated his rights under the State and Federal Constitutions. Although he cites his right to present all favorable proofs under Part I, Article 15 of the State Constitution, and his rights to due process and fair trial under the Fifth Amendment and his right to confrontation under the Sixth Amendment to the Federal Constitution, he presents no developed argument to support his claim that his rights to due process and fair trial were violated. We therefore do not consider them. See State v. Blackmer, 149 N.H. 47, 49 (2003) (passing reference to constitutional claim renders argument waived).

The defendant contends that because the State elicited misleading expert testimony and conclusions, he was deprived "of a rational conclusion consistent with innocence"; namely, "that the absence of his DNA was due to lack of penetration and/or innocence." See State v. Morrill, 154 N.H. 547, 549-51 (2006) (explaining distinction between "curative admissibility" and "specific contradiction" under "opening the door" doctrine). To the extent that any ambiguity may have existed, the State clarified through its expert in sexual assault cases that there was no evidence that the defendant had ejaculated in the victimís vagina. Accordingly, we find no merit in the defendantís contention.

Having concluded that the testimony elicited by the State was not misleading, we next consider whether the evidence that the defendant sought to present was otherwise admissible. See State v. White, 155 N.H. 119, 125 (2007).

Although the defendant argues that the exclusion of the evidence violated his right to produce all favorable proofs under Part I, Article 15 of the State Constitution, the right to produce all favorable proofs gives a defendant only the right to produce witnesses, not to produce specific testimony, State v. Graf, 143 N.H. 294, 296 (1999). It therefore provides no support for the defendantís claim of error in this case.

We turn to the defendantís argument that his rights to confrontation and cross-examination were violated. Though fundamental, a defendantís right to cross-examine prosecution witnesses is not unfettered. State v. Spaulding, 147 N.H. 583, 588 (2002). While a trial court may not completely deny a defendant the right to cross-examine a witness, it possesses broad discretion to limit the scope of examination on improper matters of inquiry. Id.

RSA 632-A:6, II (2007) provides that evidence of prior consensual activity between the victim and any person other than the defendant is inadmissible in sexual assault cases. This protection must yield in those limited cases where a defendant demonstrates that the evidence is relevant and that its probative value outweighs its prejudicial effect on the victim. State v. Higgins, 149 N.H. 290, 295 (2003). The defendant has failed to meet his burden in this case because: (1) the State was instructed by the court to make clear through testimony that the victim had not asserted that the defendant ever ejaculated inside her vagina; and (2) the victim testified that she believed that the defendant had ejaculated in her throat but did not testify that he ejaculated in her vagina, and further testified that when she advised him that she was not on birth control he told her "I wonít go inside you then" and subsequently removed his penis from her vagina.

The defendant next contends that the trial court erred in allowing the State to call expert witnesses "who were allowed to testify to conclusions without giving the factual underpinnings for those conclusions and without allowing the defense adequate opportunities to prepare to confront the evidence."

We accord considerable deference to a trial courtís discovery and evidentiary rulings and will reverse only if a defendant demonstrates that the trial courtís decision was clearly unreasonable and to the prejudice of his case. State v. Belton, 150 N.H. 741, 745 (2004).

The defendant cites the testimony of the expert with special training in sexual assault cases whose testimony we have already addressed and the testimony of a forensic expert who testified about shoeprints and a fingerprint found at the scene of the assault. In the hearing on his motion and again in his brief, the defendant argues that the testimony of the experts was without full factual predicates or evidentiary foundation. As the trial court correctly noted in its order, these defects were the proper subject of cross-examination and went to the weight to be given to the evidence rather than its admissibility.

The defendant also contends that the trial court erred in denying his motion to suppress the search warrant. Assuming without deciding that the defendant has adequately briefed this issue, we find no error. The search was conducted in Maine under a search warrant authorized by a Maine court. The trial court found that the search began before 9 p.m. when the lead police officer climbed through the defendantís window and announced her presence. The defendant does not contest this finding. See Me. R. Crim. P. 41(h) ("Maine daytime search warrant must be executed between the hours of 7 a.m. and p.m., unless the judge . . . authorizes its execution at another time."); State v. Sargent, 875 A.2d 125, 127-28 (Me. 2005) (search conducted under daytime search warrant valid when begun in daylight even though it extends into night); see also State v. Valenzuela, 130 N.H. 175, 196 (1987).

Finally, the defendant argues that the trial court erred in admitting evidence of his other bad acts. The trial court found that: (1) the alleged acts in question did not constitute either alleged bad acts or criminal conduct; (2) there was clear proof that the defendant had committed the alleged acts; and (3) the probative value was not substantially outweighed by its prejudice. Because the record supports these findings, we find no error. See State v. Ayer, 154 N.H. 500, 512 (2006).


DALIANIS, DUGGAN and GALWAY, JJ., concurred.

Eileen Fox, Clerk



Bonnie Dunbar, Trustee of the Bonnie Dunbar Trust and Beaver Brook Beaches, LLC v. Averill Babson and James A. Babson, Trustees of the Babson Family Lake Winnipesaukee Realty Trust

The court on October 26, 2007, issued the following order:

The respondents (the Babsons) appeal the superior courtís determination, after a bench trial and view, that there was insufficient evidence to support a finding that the respondents had acquired title to the tract at issue through acquiescence or adverse possession. The Babsons argue: (1) the overwhelming weight of the evidence establishes their claim of boundary by acquiescence; and (2) the trial court erred in requiring them to prove open and notorious use of the boundary to prove adverse possession because the petitioners (the Dunbars) had actual knowledge of the Babsonsí claim. We affirm.

"We review a trial courtís application of law to facts de novo. We accord deference to a trial courtís findings of historical fact, where those findings are supported by evidence in the record." Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 33 (2007) (citations omitted).

We first address the Babsonsí contention that the weight of the evidence established their claim of boundary by acquiescence. "Acquiescence may establish a boundary where the parties for twenty years or more have recognized a certain boundary as being the true one and have occupied their respective lots accordingly. The bound thus acquiesced in will prevail even over the description in the deeds." Rautenberg v. Munnis, 108 N.H. 20, 23 (1967) (citation omitted).

At trial, the Babsons asserted that both parties had recognized an extension of the Brooks Line, a line going through the middle of the rocks, as the proper boundary between their properties. The trial court disagreed, finding that neither the Dunbars nor the Babsons had acquiesced to this location of the boundary for twenty years or more. Even assuming the trial court erred in finding that the Dunbars had not recognized the extended Brooks Line as the correct boundary for twenty years or more, the record supports the trial courtís finding that the Babsons themselves had not acquiesced to that boundary location for twenty years or more.

Averill Babson testified that she used both rocks and believed that they were the boundary between the properties. She also explained that the Babsons "didnít go beyond the rocks." Her husband, Gregory Sohns, testified that he never focused on whether the dividing line between their properties was to the west, in the middle, or to the east of the rocks, but that he believed both rocks were part of the Babsonsí property. He further testified that the Babsons used both rocks and "didnít go beyond the western side of the rocks." This testimony supports the trial courtís finding that the Babsons had not recognized a line going through the middle of the rocks, that is, the Brooks Line, as the proper boundary, or occupied their property according to that line. Accordingly, the evidence supports the trial courtís finding of no boundary by acquiescence.

We next address the Babsonsí contention that the trial court erred in finding no adverse possession. "[T]o 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." Blagbrough, 155 N.H. at 33 (citation omitted). Additionally, "adverse use is trespassory in nature, and the adverse possessorís use of the land must be exclusive." Id. (citations omitted). In evaluating the merits of an adverse possession claim, we construe evidence of adverse possession of land strictly. Id.

The Babsons argue that they were not required to show that their occupation of the land up to the extended Brooks Line was open and notorious because the Dunbars had actual knowledge of their possession of that land. See Pease v. Whitney, 78 N.H. 201, 204 (1916) ("A possession which is adverse and actually known to the true owner is equivalent to a possession which is open and notorious and adverse." (quotation omitted).). The trial court, however, found that "Bonnie Dunbar credibly testified that in the thirty years of her occupancy, she ha[d] never seen the Babsons using the rocks nor ha[d] she seen evidence of use," and that "Ms. Dunbar was unaware of the Babsons [sic] use of the area until 2002 . . . ." (Emphasis added.) The record supports this finding. Thus, the Babsonsí claim that the Dunbars had actual knowledge of their use of the disputed area fails.

To the extent the Babsons also challenge the trial courtís determination that their use of the property was not sufficiently open and notorious, we find no error in this conclusion. "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." Blagbrough, 155 N.H. at 34. We agree with the trial court that "[l]eaving boats for only short periods of time, and something as small as a towel even for a longer period, is not sufficiently open and notorious to give proper notice to the property owners of an adverse claim of right." Accordingly, we uphold the trial courtís finding that the Babsons failed to acquire title to the tract at issue through adverse possession.


DALIANIS, DUGGAN and GALWAY, JJ., concurred.

Eileen Fox, Clerk



In the Matter of Joseph Goulart, Jr.

and Marcia Goulart

The court on October 26, 2007, issued the following order:

The petitioner, Joseph Goulart, Jr., appeals an order of the superior court upholding a provision of the partiesí permanent stipulation, as it was incorporated into their divorce. We vacate and remand.

On appeal, the petitioner contends that the trial court erred when it issued the order without first receiving the deposition testimony of his former attorney. He further argues the trial court should have reformed the permanent stipulation due to mutual mistake.

The record supports the following. The parties were divorced on November 2, 2005. As a part of their divorce decree, the superior court approved the partiesí negotiated permanent stipulation, which included a provision allocating responsibility for the marital home. The respondent, Marcia Goulart, moved to enforce this provision on January 13, 2006. The petitioner responded with a motion to modify the provision to reflect the true nature of the partiesí agreement.

A hearing was held on May 30, 2006, at which the petitioner contended that the permanent stipulation did not accurately reflect the partiesí actual agreement due to mutual mistake, and attempted to offer the affidavit of his former attorney. The respondent objected because she had not had an opportunity to cross-examine the former attorney. The trial court marked the affidavit for identification and ordered the record remain open pending a deposition of the attorney.

On July 7, 2006, before the deposition was submitted to the court, the court issued its order. The court determined that the relevant provision of the partiesí agreement was unambiguous and thus the language of the stipulation was sufficient to determine the partiesí obligations. The trial court made no finding with respect to the mutual mistake argument.

Here, the trial court agreed to keep the record open for submission of the deposition of the petitionerís former attorney but failed to do so. Therefore we remand for the trial court to consider this deposition. Also, upon remand, the trial court shall make findings of fact and rulings of law in support of its decision on the issue of mutual mistake.

Vacated and remanded.

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

Eileen Fox, Clerk

Orders issued by the 3JX panels of the New Hampshire Supreme Court are without precedential effect and may not be cited for any proposition of law or as an example of the proper resolution of any issue.

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