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Bar News - March 21, 2008

NH Supreme Court At-a-Glance: February 2008

Attorney Shamash is a member of the New Hampshire Board of Tax and Land Appeals and lives and works in Concord. Prior to his appointment to this full-time position in May, 2000, he practiced law in Walpole, New Hampshire. He is a member of the Bar’s CLE and Bar Journal committees. In addition to his NHBA membership, he is admitted to practice (but presently inactive) in Vermont, California and three other states. He is also an (Adjunct) Associate Professor at the University of New Hampshire, Department of Health Management and Policy, where he has taught courses in public health law and health economics.

Administrative Law

Appeal of Donald W. Murdock, No. 2007-023
February 15, 2008
Affirmed in part, reversed in part and remanded.

· Whether the PAB erred in affirming the dismissal of a state employee who had been given three written warnings, where the conduct complained of arguably pertained to different aspects of his behavior at work.

Department of Transportation (DOT) dismissed a highway patrol foreman after three written warnings and he appealed the affirmance of his dismissal by the Personnel Appeals Board (PAB). The Court construed the applicable administrative rules to require three warnings for the "same offense" (relating to particular behavior, and not any other behavior).

Applying the de novo standard for interpreting agency rules, the Court found the PAB’s interpretation of its own rules to be in error. Noting that, by statute (RSA 541:13), an agency’s findings of fact are deemed prima facie lawful and reasonable, the Court applied the following test: affirm the agency’s decision unless "satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable." Since petitioner satisfied this test, the matter was reversed and remanded for further proceedings, with the Court affirming other challenges to the agency’s rulings, such as whether the agency should have made more specific findings to allow for effective judicial review.

John G. Vanacore, Esq., of Concord, for the petitioner and Lynnmarie C., Esq., for the State.

Criminal Law

State v. Burgess, No. 2006-871
February 26, 2008

· Whether the trial court could use a defendant’s silence as a factor at the sentencing phase without violating his constitutional privilege against self-incrimination.

Defendant following conviction (for attempted escape and possession of implement of escape) argued on appeal the trial court violated his privilege against self-incrimination under Part I, Article 15 of the New Hampshire Constitution when it reviewed certain factors prior to his sentencing. Following a finding of guilt by a jury, the defendant refused to speak to the person conducting the presentence investigation (PSI) and did not address the court during the sentencing hearing. The trial court then imposed the maximum extended term sentence (concurrent ten to thirty years on each indictment, consecutive to the term already being served) and the defended moved to vacate the sentence, which motion was denied.

The Court affirmed, noting it had "never addressed whether and to what extent the privilege against compelled self-incrimination applies at sentencing." The Court found the trial court had reasoned the defendant’s silence at the sentencing hearing indicated a lack of remorse and a decreased potential for rehabilitation and in response to the defense attorney’s plea for leniency or mercy. The Court reviewed somewhat conflicting federal and states authorities before holding that what the trial judge did in this instance did not violate the defendant’s constitutional privilege against self-incrimination.

Esther B. Piszczek, Esq., for the State, and Theodore Lothstein, Esq., of Concord, for the defendant.

State v. Labranche, No. 2006-814
February 26, 2008

· Whether the trial court erred in permitting the State’s expert psychiatrist to testify as to whether the crime alleged (homicide) was the product of mental illness.

The Court examined Rule 702 of the New Hampshire Rules of Evidence (regarding expert testimony) and concluded the trial court did not err (under the unsustainable exercise of discretion standard) by allowing the medical expert to testify for the State. The Court found this testimony could have helped the jury determine whether the defendant was insane within the meaning of RSA 628:2, which provides insanity at the time of the crime can be an affirmative defense.

The Court distinguished its 1994 St. Laurent decision because here the expert testimony did not address the issue of intent (mens rea for the crime), but rather whether the defendant’s actions were the product of a mental illness. The court acknowledged its holding is not in agreement with state and federal cases from Maine and the District of Columbia on which the defense relied.

N. William Delker, Esq., for the State, and James T. Brooks, Esq., of Concord, for the defendant.

Contract Law

Edwards v. RAL Automotive Group, No. 2006-943
February 13, 2008
Reversed and remanded.

· Whether trial court erred in imposing a duty to indemnify for amounts owed under a lease.

Edwards sold car dealership business and leased land under it to RAL in 1997; the lease contained an express prohibition against assignment without his prior written consent. In 2001, RAL entered a purchase and sale agreement of the dealership with Boyle, with an assignment of rights under the lease and an assumption (by Boyle) of RAL’s obligations to Edwards. In addition, Boyle and Minato Auto (apparently affiliated with Boyle) entered into cross-indemnity agreements with RAL pertaining to the obligations to Edwards arising before and after the purchase and sale. Edwards refused to consent to the assignment. Litigation ensued and the trial court ruled in 2003 the lease assignment was void because Edwards had not consented and his withholding of consent was reasonable.

Edwards then sued RAL for amounts due under the lease and RAL brought third-party claims for indemnity against Boyle and Minato. The trial court entered judgment for Edwards ($1.2 million plus attorney’s fees and costs) and further ordered Boyle and Minato to indemnify RAL because it found the assumption of liabilities paragraph to be severable from the assignment of lease paragraph (held to be void in 2003) in the agreement between RAL and Boyle and Minato.

The Court reversed, disagreeing with the trial court on the severability issue and finding no duty to indemnify RAL. The Court noted interpretation of a final judgment is a question of law subject to de novo review and the 2003 judgment had not been appealed. The Court found that, under the plain language of the 2003 decree, the trial court had voided the entire agreement.

The Court cited a 1993 Nebraska supreme court decision (Hohnstein) to the effect that "Neither what the parties thought the judge meant nor what the judge thought he or she meant, after time of appeal has passed, is of any relevance. What the decree, as it became final, means as a matter of law as determined from the four corners of the decree is what is relevant."

Robert A. Shaines, Esq., of Portsmouth, for Jay C. Edwards, John F. Boyle, Esq. of Plymouth, and John Kuzinevich, of Dover, Mass., for Minato Auto, LLC and James G. Boyle, Sakellariios & Associates, of Manchester, for RAL Automotive Group, Richard Pepi and George P. DiLorenzo, and William S. Gannon, Esq., of Manchester, for R. Anthony Laughrey and David Gale, joining in the Edwards brief.

Family Law

Tosta v. Bullis, No. 2007-405
February 26, 2008

· Whether there was sufficient evidence to support a finding by the trial court that defendant was engaged in "abuse" sufficient to warrant issuance of a protective order under RSA chapter 173-B.

Husband and wife lived together for nine months after the incident of assault had occurred (while traveling in a car in Massachusetts). Trial court denied defendant husband’s motion to dismiss the plaintiff wife’s domestic violence petition.

Reviewing the facts and chronology, court concluded "some other forces" (other than the assault) had, prompted the wife to seek a restraining order and therefore it was error for trial court to enter a final domestic violence protective order against the husband.

Insurance Law

State Farm Insurance Company v. Bruns, No. 2007-079
February 13, 2008

· Whether summary judgment properly granted to insurer contending it had no obligation under a personal liability umbrella policy to defend against sexual assault claims.

The mother and guardian of a minor filed suit against the insured, alleging sexual assault and other claims. The insurance company provided a defense with a reservation of rights and then filed a declaratory judgment petition. On cross-motions, the superior court granted summary judgment to the insurance company, ruling that it had no obligation to defend under the insurance policy. Following an amended "declaration," the parties renewed their respective motions for summary judgment and the superior court again granted summary judgment to the insurance company.

Based on an extensive analysis of an insurer’s obligation to defend, the specific provisions in the insurance policy and the claims alleged, the Court affirmed the grant of summary judgment to the insurance company. Specifically, the Court found "the facts supporting the uncovered claims and the potentially covered claims are inextricably linked" (sexual assault versus invasion of privacy and false imprisonment) and therefore the insurer had no duty to defend or indemnify.

Blake M. Sutton, Esq., of Concord, for State Farm, Doreen F. O’Connor, Esq. and Mary Ann Dempsey, Esq., of Manchester, for Diane Bruns, Gerard R. LaFlamme, Jr., Esq., of Haverhill, Mass., for William Bruns.

Bates v. Phenix Mutual Fire Insurance Company, No. 2007-177
February 13, 2008

· Whether insurance policy excluded coverage for water damage caused by flood.

Plaintiff insured brought declaratory judgment action contending surge of water from October, 2005 flooding in Southern New Hampshire caused "explosion of the road" and resulting property damage. Insurer denied liability because loss was "proximately caused by flood, not explosion." Trial court agreed and entered summary judgment for defendant insurer.

The Court affirmed, noting "a court will not create an ambiguity simply to construe the policy against an insurer," quoting from a 1995 case (Int’l Surplus Lines). Here, the policy precluded coverage where the loss or damage was "caused directly or indirectly" by water, "regardless of any other cause or event that contributes concurrently or in any sequence to the loss." The Court therefore did not reach the issue of whether the factual circumstances amounted to an "explosion," an event arguably covered by the policy.

H. Neil Berkson, Esq., of Keene, for the plaintiff, and Keith Aten, Esq., of Littleton, for the defendant.

Real Property Law

Greene v. McLeod, No. 2007-023
February 15, 2008

· Whether the "part performance" doctrine applies as an exception to the statute of frauds (see RSA 506:1).

The Court reversed a superior court order denying a petition to quiet title to certain property that had been held by the parties as tenants in common since 1956.

The Court first held that two blank deeds, signed by McLeo and given to Greene (the petitioner), were insufficient as a matter of law to satisfy the statute of frauds and that parol evidence was not admissible to supply the missing terms of the purchase and sale contract in question.

The Court found, however, that the part performance doctrine took the contract outside of the statute of frauds because petitioner paid McLeod $5,000 for his interest in 1975 and paid the property taxes on the property for the next 30 years in reliance upon McLeod’s oral agreement to convey his interest in the property. The court cited the three factors necessary to establish part performance stated in a leading contract treatise [4 C. Brown, Corbin on Contracts § 18.6 (rev. ed. 1997)] and concluded the petitioner had satisfied each of them, entitling him to full title to the property.

Arthur G. Greene, of Bedford, for the petitioner. Patrick H. Wood, of Laconia, for the respondents.

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