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Bar News - April 18, 2008


NH Supreme Court At-a-Glance: March 2008

By:

Criminal Law

State v. Walter Hutchinson, No. 2007-403
March 7, 2008
Affirmed and Remanded

Whether the protection against double jeopardy prevents the State from prosecuting a defendant for murder after previously convicting the defendant for the attempted murder of the same victim.

In 1991, the defendant was convicted of attempted murder. In 2005, the same victim died, according to the State, as a result of the same injuries alleged in the attempted murder conviction. The State indicted the defendant for murder. The defendant moved to dismiss arguing that the Double Jeopardy Clauses of the State and Federal Constitutions bar the indictment. The Superior Court (Nedeau, J.) denied the motion, and this interlocutory appeal followed.

The Court began with the concepts that the Double Jeopardy Clauses protect a defendant from being tried twice for the same offence, and that two offenses are considered the same unless each requires proof of an element that the other does not. The Court held, however, that the protection against double jeopardy is not absolute. For example, the U.S. Supreme Court held, in Diaz v. United States, 223 U.S. 442 (1912), that "double jeopardy was not a bar to a subsequent prosecution for a greater offense where all of the necessary elements of that offense did not exist at the time of the first trial." The Court held that, while the law on double jeopardy has evolved since Diaz was decided, the case remains effective.

The Court declined the defendantís invitation to adopt the limited application of the Diaz rule from Justice OíConnorís concurrence in Garrett v. United States, 471 U.S. 773 (1985), which the defendant argued stands for the proposition that additional criminal acts should be required before the Diaz rule could be used to retry a defendant. Rather, the Court focused on the fact that the crime at issue here, like the crime in Garrett, was "incomplete" at the time of the first trial, and could not have been prosecuted at that time.

The Court held that the societal interest in prosecuting a defendant for an alleged homicide completed after his initial trial for attempted murder outweighs the defendantís interest in finality, and comports with the New Hampshire Double Jeopardy Clause. The Court noted that all other states considering this question have reached the same conclusion.

Patrick W. Fleming, of Portsmouth for the Defendant. Kelly A. Ayotte, attorney general (Elizabeth J. Baker, assistant attorney general), for the State.



In Re Juvenile, No. 2007-150
March 12, 2008
Affirmed

Whether RSA 169-B:14 which requires that in delinquency proceedings, adjudicatory hearings shall be held within 30 days of arraignment, requires that the hearing be completed within the 30 day period, or merely begun.

The juvenile was arraigned on two delinquency petitions for burglary. The adjudicatory hearing began 28 days later, but the prosecutor requested a continuance when one of his subpoenaed witnesses failed to appear. The hearing was recessed and resumed 14 days later.

After the entry of a finding of true, the juvenile moved to dismiss, arguing that because the adjudicatory hearing was not completed within 30 days, the court had lost jurisdiction. The Colebrook Family Division (Michalik, J.) denied the motion.

The issue on appeal was whether RSA 169-B:14 requires that the adjudicatory hearing be completed within 30 days of the arraignment. The Court relied on In Re Juvenile 2004-469, 151 N.H. 706,707 (2005), in which the Court construed similar language in RSA 169-B:16 requiring the court to "hold a hearing on final disposition within 21 days of the adjudicatory hearing." In that case, the Court determined that the plain meaning of "to hold" is "to conduct" or "preside at," and that the statute required the court to conduct a hearing within the specified time period, but not necessarily complete it.

The Court found no reason to interpret RSA 169-B:14 differently. The Court rejected the juvenileís argument that Section 14ís use of "shall be held" is sufficiently different from Section 16ís use of "hold." The Court held that where the only difference between two sentences is that one is written in the passive voice and the other in the active voice, there is no reason to reach a different conclusion.

James T. Brooks, assistant appellate defender, of Concord for the juvenile. Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney), for the State.



State v. David A. MacDonald, No. 2007-279
March 12, 2008
Affirmed

Whether the evidence presented at trial was sufficient to convict the defendant of driving while under the influence of intoxicating liquor.

The defendant was convicted of driving while under the influence. On appeal, the defendant argued that the evidence presented at trial was insufficient for conviction. The evidence at trial was that the defendant was speeding in a downtown area in Dover, that he was confused when asked to produce his license and registration, that there was a strong odor of alcohol on his breath, and that he had difficulty getting out of the car and staying steady on his feet. The defendant failed three field sobriety tests and continued to exhibit signs of intoxication at the police station after his arrest.

The parties disagreed whether the evidence at trial was solely circumstantial or both circumstantial and direct. The Court declined to resolve this dispute because it found that even if all of the evidence were circumstantial, it was nevertheless sufficient for a conviction.

The Court held that, viewing the evidence and all reasonable inferences to be drawn from it in the light most favorable to the State, a reasonable juror could have found beyond a reasonable doubt that the defendant was intoxicated.

The defendant attempted to analogize his case to State v. Lorton, 149 N.H. 732 (2003), in which the Court reversed a DUI conviction due to insufficient evidence. The Court found that Lorton was "easily distinguished" because, among other things, unlike the defendant in this case, Lorton had not operated his vehicle erratically, the officer only smelled a "moderate" odor of alcohol on Lortonís breath, and Lortonís performance on one of the two field sobriety tests (which were conducted under less-than-ideal conditions) was "unremarkable."

The Court declined the Stateís invitation to clarify or overrule Lorton to the extent that the case could be said to hold that a witnessís direct observations of intoxicated behavior or a witnessís opinion based on observations that a defendant is impaired is circumstantial evidence.

David M. Rothstein, deputy chief appellate defender, of Concord for the defendant. Kelly A. Ayotte, attorney general (Esther B. Piszczek, assistant attorney general), for the State.



State v. Karl Kornbrekke, No. 2006-926
March 14, 2008
Affirmed in part, Reversed in part, and Remanded

Whether the trial court erred by refusing to allow the defendant to cross examine the complainant about, or introducing extrinsic evidence of, a prior false accusation of sexual assault.

Whether the defendant's right against double jeopardy was violated by retrial after the trial court declared a mistrial.

The defendant was tried on two counts of aggravated felonious sexual assault. During jury deliberations, the jury informed the Superior Court (Fitzgerald, J.) that they were unable to reach a unanimous verdict, and that they had learned that one of the jurors was a social worker who worked with sexual assault victims and who had a child who was a victim of sexual assault. After giving defense counsel an opportunity to object, the trial court declared a mistrial.

Prior to retrial, the defendant filed a motion in limine to allow cross examination and extrinsic evidence regarding a prior false accusation of sexual assault by the complainant. Approximately seven years earlier, she recanted an accusation that another man had raped her and grabbed her around the throat. The trial court denied the motion, and at the conclusion of the trial, the jury returned a guilty verdict.

On appeal, the Court considered whether the trial court erred by not allowing cross examination on the recanted accusation. The Court held that while New Hampshire Rule of Evidence 608(b) permits a cross-examiner to inquire into conduct that is probative of the witnessís character for truthfulness or untruthfulness, such examination is limited by Rule 403, which excludes relevant evidence when its probative value is substantially outweighed by, among other things, the danger of unfair prejudice. The Court relied on State v. Miller, 155 N.H. 246 (2007), which sets out nine factors for a trial court to consider in determining the degree of probative value. While the trial court appeared to consider some of the Miller factors (Miller was decided after this case was tried), the Court held that the complainantís prior accusation was highly probative. Specifically, the Court found that the prior accusation was sufficiently similar to the accusation at issue to satisfy the fifth Miller factor. Accordingly, the Court held that it was error for the trial court to prevent cross examination, and reversed. Because the defendant was not given the opportunity to cross examine the complainant about the prior accusation, and because extrinsic evidence only becomes an issue when a witness denies making a false accusation, the Court held that the issue of whether the trial court erred by precluding extrinsic evidence was not ripe.

With regard to the defendantís double jeopardy argument, the Court held that "[w]here a defendant has consented to declaration of a mistrial, retrial is not barred absent judicial or prosecutorial impropriety." Here, the defendantís counsel declined the opportunity to object to the mistrial. The defendant argued that because there was evidence that a juror may have been prejudiced against him due to her undisclosed history, the trial court was required, pursuant to Petition of Mello, 145 N.H. 358 (2000), to determine whether the jury was prejudiced and exhaust all reasonable alternatives before declaring a mistrial. The Court rejected this argument and held that the Mello decision was confined to its unique circumstances. Rather, the Court held that the jury deadlock itself constituted manifest necessity for a mistrial and prevented original jeopardy from terminating on that charge. Accordingly, the Court affirmed the trial courtís denial of the defendantís motion to dismiss.

Theodore Lothstein, assistant appellate defender, of Concord for the defendant. Kelly A. Ayotte, attorney general (Lucy H. Carrillo, assistant attorney general), for the State.



State v. Thomas Larose, No. 2007-709
March 20, 2008
Affirmed

Whether the trial court erred by refusing to instruct the jury on entrapment, by denying the defendant's motions for a continuance, discovery regarding a police informant, and for dismissal.

The defendant was convicted on five counts of selling cocaine to an undercover police officer. On April 27, 2005, an informant reported to the police that the defendant was selling cocaine in Nashua. At an undercover police officerís direction, the informant arranged to purchase cocaine from the defendant. On May 2, 2005, the informant put the defendant in touch with "Nick," the undercover police officer, who asked the defendant to sell him some cocaine. Over the course of a month, the defendant sold cocaine to the undercover police officer five times. The defendant was indicted for these five sales to the undercover officer; he was not indicted for the sale to the informant.

On appeal, the defendant argued that the Superior Court (Lynn, C.J.) erred by refusing to instruct the jury on entrapment. The Court held that to be entitled to an instruction on entrapment, the defendant must produce "some evidence" on both prongs of the defense: (1) government inducement, and (2) lack of predisposition to engage in the criminal conduct. The Court held that inducement consists of "opportunity plus something else" such as excessive pressure or taking advantage of a non-criminal motive. The Court held that neither the informantís two requests that the defendant sell her drugs, nor the lure of a good customer whose purchases would allow the defendant to keep some of the cocaine for himself, constituted improper inducement. Because the defendant had failed to produce some evidence of inducement, the Court held that it need not reach the issue of predisposition.

The Court rejected the defendantís constitutional arguments relating to his motion to dismiss. In particular, with regard to the defendantís argument that the police violated his due process and equal protection rights by not arresting him after the first sale and permitting him to continue selling cocaine, the Court held that there is no constitutional right to be arrested.

Finally, the Court held that there was no error in the trial courtís initial denial without prejudice of the defendantís motion for additional discovery regarding the informant. The Court held that once the State opened the door to her testimony, the trial court granted the motion for discovery and allowed the defendant additional time to review it before questioning.

Thomas Larose, pro se, with John P. Kacavas, Kacavas, Ramsdell & Howard, PLLC, of Manchester for the defendant. Kelly A. Ayotte, attorney general (Karin M. Eckel, attorney), for the State.



State v. Angel Cosme, No. 2007-072
March 20, 2008
Affirmed

Whether a criminal defendant has a constitutional right to be present at, and make a record of, pretrial jury orientation.

The defendant was convicted of two counts of misdemeanor sexual assault. Prior to trial, the defendant moved to be present at, and make a record of, pretrial jury orientation because he alleged that the trial court had a practice of instructing prospective jurors on legal concepts and answering questions from individual prospective jurors. The trial court did not act on the defendantís motion until after orientation occurred. Later, the defendant moved to strike the jury because the orientation deprived him of his right to be present for a crucial stage of the criminal process. The trial court denied the motion, and at the conclusion of the trial, the jury returned a guilty verdict.

The Court noted that New Hampshireís practice for jury orientation includes a video presentation and an informal oral address from the presiding judge followed by an opportunity for prospective jurors to ask questions. On appeal, the defendant argued that the trial courtís "unrehearsed and unrecorded interaction" with prospective jurors outside the defendantís presence violated his constitutional rights. While defendants have a right, under Part I, Article 15 of the State Constitution, to be present at any proceeding that constitutes a critical stage of the criminal process, they do not have a constitutional right to be present at every interaction between a judge and juror.

The Court held that jury orientation is not the type of proceeding that triggers a criminal defendantís right to be present or a right to a record, because, unlike jury selection or proceedings while the trial is in progress, jury orientation is unrelated to any specific case or defendant. Therefore, the Court held that the "orientation of prospective jurors is not a critical stage of criminal proceedings instituted against a defendant, and does not bear the hallmarks of a proceeding in which is presence is necessary to preserve his ability to defend against pending criminal charges."

Finally, the Court observed that "on a prospective basis," "specific procedures governing the interaction between the trial court and prospective jurors during jury orientation should be accomplished through rulemaking."

Christopher M. Johnson, chief appellate defender, of Concord for the defendant. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general), for the State.


State v. Ernest Solomon, No. 2007-290
March 20, 2008
Reversed

Whether a trial judge's voluntary military deployment after the start of the trial constitutes manifest necessity for a mistrial.

The defendant was charged with three misdemeanors. After two continuances, the trial began on August 14, 2006 and the Derry District Court (Coughlin, J.) began to hear evidence. The trial was suspended and continued two more times until January 22, 2007. In the interim, Judge Coughlin, who is a member of the New Hampshire National Guard, volunteered for duty in Iraq and waived advance notice of mobilization. He was deployed in January 2007.

When the trial recommenced before Judge Stephen, the defendant, then appearing pro se, moved to dismiss for lack of a speedy trial. The motion was denied and the trial continued once more. Later, the defendant, now represented by counsel, moved to dismiss on the ground that Judge Coughlinís absence after beginning to hear evidence violated his right under the New Hampshire and federal constitutions to have his trial completed by a particular tribunal.

After considering several alternatives, Judge Stephen found that manifest necessity existed for a mistrial. On appeal, the defendant argued that Judge Coughlinís voluntary departure did not constitute manifest necessity for a mistrial.

The Court held that the State had not met its burden of demonstrating that the mistrial was justified by manifest necessity. The Court rejected the defendantís argument that the voluntary nature of Judge Coughlinís deployment defeated manifest necessity. Rather, the Court held that the totality of the circumstances, and specifically, the Stateís failure to show that either reasonable preventative measures were taken to protect the defendantís constitutional right to the same fact finder (such as scheduling the trial to occur before Judge Coughlinís deployment), or that no such measures could have been taken.

The Court acknowledged that Judge Coughlinís decision to volunteer for duty was admirable, but pointed out that "[h]owever laudable the underlying cause, when a judge becomes unavailable after jeopardy has attached and maintains the ability to reasonably allow for the conclusion of that case, but fails to do so, the State cannot meet its burden of showing manifest necessity."

Theodore Lothstein, assistant appellate defender, of Concord for the defendant. Kelly A. Ayotte, attorney general (Michael S. Lewis, attorney), for the State.


Family Law

In the Matter of George J. Nassar and Maureen Nassar, No. 2006-870
March 7, 2008
Vacated and Remanded

Whether the trial court erred by making an award of lifetime alimony subject to automatic cost-of-living increased, and, by considering the husbandís fault in the dissolution of the marriage, his access to free housing in determining the amount of the award.

The husband and wife in this case were married for about twenty years after residing together for approximately ten years before that. Throughout the marriage, they lived rent-free in a house on Squam Lake owned by the husbandís parents. Otherwise, they lived a modest life. The wife worked part time as a waitress; the husband has held various jobs including seasonal work at his parentsí boat tour business.

When the couple decided to divorce, they reached a stipulation as to most issues, other than the wifeís request for alimony. In its final order, the trial court awarded the wife "permanent alimony" of $1,100 per month, subject to an annual cost-of-living increase based upon the Wall Street Journal Consumer Price Index.

On appeal, the husband argued that the trial court impermissibly considered fault in determining the alimony award. First, the Court agreed with the husband that there was no evidence to support the trial courtís finding that the husband had "induced" the wife to return to the marriage following a physical assault. For this reason, the Court vacated the award and remanded. Moreover, the Court also held that remand was required because it was not possible to determine from the record whether the trial courtís consideration of the husbandís conduct was for the permissible purpose of determining that the wife had an "impeded Ö ability to be self sufficient," or whether it was to determine that the husband was at fault in the dissolution of the marriage, which is an impermissible purpose in a no-fault divorce proceeding.

The husband also argued that the trial court erred in making the alimony award permanent, and subject to automatic annual cost-of-living increases. First, the Court observed that while alimony is primarily meant to be rehabilitative, with the goal of encouraging the recipient to establish an independent source of income, in some cases, an alimony award that is more than merely rehabilitative may be warranted. In this case, the Court held that the record did not justify an award of lifetime alimony. The wife was in good health, had no minor children to care for, had marketable skills, and was accustomed to a modest lifestyle. As for the automatic annual cost-of-living increases, the Court held that, like child support awards, alimony awards cannot be made subject to automatic cost-of-living escalators.

Finally, the husband argued that the trial court impermissibly considered the prospect that he would continue to receive support, including rent-free housing, from his parents. The Court held that, to the extent that the trial considered the husbandís potential receipt of future gifts from his parents, it was in error. The Court held that "a partyís mere expectation of receipt of a future gift cannot be considered when making an alimony award."

J. Campbell Harvey, Harvey & Mahoney, P.A., of Manchester for the petitioner. Philip T. McLaughlin, McLaughlin Law Office, P.C., of Laconia for the respondent.


In the Matter of Lisa M. Martin and James A. Martin, No. 2007-217
March 13, 2008
Vacated and Remanded

Whether, for purposes of the three-year review of a child support order under RSA 458-C:7, the three year period begins to run from the date the order was issued, or from the date the order becomes effective.

The petitioner commenced this divorce action in July 2001. The trial court issued a temporary divorce decree in October 2001 ordering the respondent to pay $1,500 per month in child support. Later, in December 2003, the trial court issued notice of its final decree which ordered the respondent to pay $2,065 in child support. The parties filed cross-appeals of the divorce decree. During the pendency of the appeal, the respondent continued to pay child support in accordance with the temporary divorce decree. In May 2006, the Court vacated and remanded those portions of the final decree dealing with the valuation of the respondentís business and the apportionment of the partiesí interest in the business. The Court, however, affirmed the determination of the respondentís income for child support and alimony purposes. On remand, in December 2006, the trial court issued a decree with regard to the valuation and apportionment of the respondentís business, but did not issue any further orders as to child support.

The petitioner then moved to modify the child support order on the ground that, pursuant to RSA 458-C:7, she was entitled to a review of the support order because more than three years had passed since the order was issued. The respondent moved to dismiss arguing that because the temporary decree governed pending appeal, the final decree had not been in effect for three years and the petitioner was not entitled to review.

RSA 458-C:7 provides that a party can apply for modification of a support order "3 years after the entry of the last order for support" without having to show a substantial change in circumstances. The Court held that the phrase "entry of the last order for support" occurs when the court issues the last order for support and not when the order becomes effective subsequent to appeal. The Court held that legislative history supports its interpretation because the purpose of RSA 458-C:7 was to provide for modification of child support orders on a regular basis every three years.

Because the petitionerís motion came more than three years after the final support decree was issued, she was entitled to a three-year review.

Gary M. Burt and Heather E. Krans, Wiggin & Nourie, P.A., of Manchester for the petitioner. K. William Clauson, Clauson, Atwood & Spaneas, of Hanover for the respondent.



In the Matter of Susan Martel and Robert Martel, No. 2007-100
March 21, 2008
Affirmed in part, Reversed in part, Vacated in part, and Remanded

Whether, the trial court erred in, among other things, ordering an unequal division of property, failing to grant a fault-based divorce, failing to find a party in contempt, and failing to award attorneyís fees.

The wife filed for divorce alleging grounds of adultery and treatment so serious as "to injure health or endanger reason." The husband filed a cross-petition for divorce alleging that irreconcilable differences caused the irremediable breakdown of the marriage. After a three-day trial, the Portsmouth Family Division (Sadler, J.) granted a no-fault divorce and ordered an unequal division of assets in favor of the wife. The parties filed cross-appeals raising multiple issues.

The husband argued, among other things, that the trail court erred in ordering an unequal division of assets. The Court noted that RSA 458:16-a, II creates a presumption that equal division of marital property is equitable, but lists a number of factors that weigh in favor of an unequal division. The husband argued that the trial court misapplied three of these factors. First, the trial court noted the "duration of the marriage," as a factor favoring unequal division. The Court noted that the couple had been married for twenty years, and held that the trial court misapplied this factor because "[a] long-term marriage is a factor which justifies an equal division of assets." The petitioner commenced this divorce action in July 2001. The husband also argued that the trial court erred in finding that the marital home should go to the wife because she was the custodial parent. The Court agreed with the husband because the coupleís only child was eighteen at the time of the divorce, the house was unencumbered, and the wife had a substantial monthly income.

Finally, the husband argued that the trial court erred in ordering an unequal division because the husbandís stock trading had led to the diminution of the marital assets. The husband argued that the term "diminution" in RSA 458:16-a, II(f) equates to "dissipation" and requires a finding of wrongful intent, at the time the marriage was coming to an end, to deprive the other spouse of a share of the marital estate. The Court rejected this interpretation of the statute, and held that the statute does not require a showing of malicious intent, nor is the timing of the diminution relevant. Rather, the Court held that, in determining whether one spouseís diminution in the value of property justifies an unequal division, the trial court must consider factors such as: conduct that contributed to the growth of the property; the nature of the conduct; the other spouseís knowledge of the conduct; and whether the diminution made the other spouse unable to maintain a similar lifestyle after divorce. For all of these reasons, the Court vacated the trial courtís division of the marital assets and remanded.

The wife argued, among other things, that the trial court erred in failing to award her a fault-based divorce on grounds that the husband treated her so "seriously as to injure [her] health or endanger reason" pursuant to RSA 458:7, V. The Court pointed out that, in order to receive a divorce on these grounds, the petitioner must prove that the treatment complained of was the primary cause of the breakdown of the marriage. At trial, when asked about the "primary and overriding cause for the failure of the marriage," the wife testified that the husband was unhappy every day, he spent an inordinate amount of time with other people, and she "got tired" of it. The Court held that this testimony was sufficient for the trial court to find that the primary cause of the breakdown of the marriage was irreconcilable differences.

The wife also argued that the trial court erred by not finding the husband in contempt for repeatedly failing to comply with an order requiring him to return money withdrawn from a joint account. The Court held that while the trial court was not compelled to find the husband in contempt for violating its orders, the final divorce order does not give any justification for not holding the husband in contempt despite repeated failures to comply with the prior orders. Accordingly, the Court vacated the trial courtís order and remanded for reconsideration of the wifeís motion for contempt.

The Court rejected the wifeís argument that that the trial court erred in failing to award her attorneyís fees.

Heidi E. Shealy, of Stratham for the petitioner. Erica Bodwell, Borofsky, Amodeo-Vickery & Bandazian, P.A., of Manchester for the respondent.


Municipal Law

Ken Grant and Robert Ott v. Town of Barrington, No. 2007-174
March 13, 2008
Affirmed

Whether the citizens of a so-called SB 2 town can amend a warrant article at the deliberative session of the town meeting such that it effectively has no subject matter.

The Town of Barrington is a so-called SB 2 town, meaning that it has adopted the provisions of RSA 40:13 to govern the conduct of its town meetings. Under these procedures, the town meeting takes place over two sessions: the first for discussion and possible amendment of proposed warrant articles, and the second for voting.

The petitioners submitted a question for placement on the warrant for town meeting concerning the development of infrastructure and landscape development in the town center/village district. At the deliberative session, a motion passed to amend the article by deleting all of the language except an introductory phrase. The petitioners sought an injunction from the Superior Court requiring the town to place the article as originally worded on the ballot for the second session.

The petitioners argued that RSA 39:2 requires that amendments to proposed warrant articles must be within the same subject matter as the original, and that by deleting all of the language from the proposed question except for the introductory phrase, the subject matter of the question was improperly changed. The Court disagreed, and held that RSA 39:2 prohibits amendments that add subject matter to a proposed question not originally noticed to the voters. Because the article as amended did not contain new subject matter that was not noticed on the warrant, the amendment did not violate the purpose of the notice requirement.

The petitioners also argued that the proposed amendment deleting all of the language from the article other than the introductory phrase was in effect a final vote on the article or a vote to restrict reconsideration. The Court rejected these arguments and held that there is "nothing in RSA 40:13, IV or RSA 39:3 that prevents voters at the deliberative session from effectively removing a subject from consideration at the second session by amending an article to delete the entire subject thereof."

Finally, the Court refused to address the petitionersí constitutional arguments, which were raised without discussion in the concluding paragraph of their brief. The Court held that "[o]ff-hand invocations of the State Constitution Ö supported neither by argument nor by authority Ö warrant[] no extended consideration."

Tony F. Soltani, Soltani/Mosca P.L.L.C., of Epsom for the petitioners. Judith E. Whitelaw, Mitchell & Bates, P.A., of Laconia for the respondent.


Real Property

Donna Richard v. Good Luck Trailer Court, Inc., No. 2007-163
March 21, 2008
Affirmed

Whether the trial court erred in finding that the owner of a manufactured housing park had not breached a contract, or the implied covenant of good faith, by selling the trailer court to the tenants' association rather then to a third party.

The parties entered into a purchase and sales agreement ("P&S") for the sale of the defendant's trailer court to the plaintiff. The P&S expressly stated that the sale was contingent upon compliance with RSA 205-A, which regulates the sale of manufactured housing parks and which prohibits the park owner from unconditionally accepting an offer for the sale without first giving the park tenants 60 days' notice of his intent to sell and the terms of the offer. The statute also requires the park owner to consider any offer from the tenants or a tenants' association during the notice period and to negotiate in good faith with them.

As required by the statute, the defendant gave the tenants notice of the plaintiff's offer, and the tenants' association responded with an offer, but without guaranteed financing and with a proposed closing date more than a month away. A few days later, the defendant informed the plaintiff that he had decided to sell the trailer court to her. Later that same day, the defendant informed the plaintiff that the tenants' association might modify its offer. Another few days passed, and the defendant accepted the tenants' association's offer.

The plaintiff filed suit for breach of the P&S as well as breach of an implied covenant of good faith and fair dealing. After a bench trial, the Superior Court (McHugh, J.) ruled that there was no breach of the P&S and that the defendants' decision to sell the property to the tenants was made in good faith.

On Appeal, the Court found that the defendants' sale of the trailer court to the tenants was not a breach of the P&S, but rather, it was an event expressly contemplated in the agreement. At trial, the plaintiff and her attorney testified that they understood how RSA 205-A worked and knew that there was a chance that the sale would not go through. The Court also found that the record supported the trial court's finding that the defendants' sale of the trailer court to the tenants did not breach the implied covenant that parties to a contract will act in good faith and deal fairly with each other.

Finally, the Court rejected the plaintiff's argument that RSA 205-A:21 does not require a manufactured housing park owner to accept an offer from tenants which is relatively similar to that made by a third party. The Court held that, at minimum, the statute requires that any offer to purchase a manufactured housing park by a third party be conditioned upon the tenants not making a comparable offer within the notice period. The Court held that they need not decide whether RSA 205-A:21 "required" the sale to the tenants since the transaction complied with the statue, which requires the park owner to negotiate in good faith with the tenants if they make an offer during the notice period.

Thomas K. MacMillan, MacMillan Law Offices of Bedford, for the plaintiff. Joseph L. Hamilton, Hamilton Law Offices, P.L.L.C. of Salem, for the defendants.


Stalking

Nicola South v. Kerry McCabe, No. 2007-120
March 12, 2008
Vacated and Remanded

Whether the trial court erred by failing to make specific factual findings in support of its imposition of a final stalking order.

Whether, in making its determination on the stalking petition, the trial court may consider allegations not contained in the petition.

After a hearing, the Rochester District Court (DeVries, J.), issued protective orders requested by the petitioner based on her allegations that the respondent had stalked her by following her to a beach in York, Maine, tampering with her car, and "berating" her in a public restroom. On appeal, the respondent argued that there was insufficient evidence to support the trial courtís finding that she stalked the petitioner.

The Court did not reach the merits of the respondentís argument, but rather vacated and remanded because the trial court failed to make the required specific factual findings in support of the imposition of the final stalking order. The Court relied on Fisher v. Minichiello, 155 N.H. 188 (2007), to hold that the stalking statute, RSA 633:3-a, requires the trial court to "make findings on the record that a defendant engaged in two or more specific acts over a period of time, however short, which evidence a continuity of purpose." The trial court made no such findings in this case.

Because the issue was likely to come up on remand, the Court also addressed the respondentís argument that the trial court could not base the stalking finding on allegations not contained in the petition. The Court held that In the Matter of Aldrich & Gauthier, 156 N.H. 33 (2007), which holds that the trial court should not admit unnoticed charges at a hearing on a domestic violence petition, applies to civil stalking proceedings. The Court held that, on remand, the trial court should limit its findings to the factual allegations specifically recited in the stalking petition. The Court cautioned, however, that a general allegation in the petition of an "ongoing pattern of Ö behavior" does not give sufficient notice to permit "far-ranging testimony on various examples of the respondentís conduct" not expressly set out in the petition.

Robert S. Carey, Orr & Reno, P.A., of Concord for the respondent. Christopher R. Burns, Burns Legal Services, of Portsmouth for the petitioner.


Taxation

Vector Marketing Corporation v. New Hampshire Department of Revenue Administration, No. 2007-330
March 7, 2008
Affirmed

Whether a taxpayerís district managers are "independent contractors" under N.H. Admin. Rules Rev 301.17, rather than "employees," and thereby exempt from the business profits tax.

The petitioner hires "district managers" to solicit sales of Cutco cutlery face-to-face with potential customers and recruit and train sales representatives. The Internal Revenue Service ("IRS") ruled that the district managers were "independent contractors" for federal income tax purposes. The Department of Revenue Administration ("DRA"), however, determined that the petitioner is subject to the New Hampshire business profits tax ("BPT") because its district managers are "employees" rather than "independent contractors" as the term is defined in N.H. Admin Rules Rev 301.17 ("Rule 301.17"). The petitioner appealed the DRAís determination to the Superior Court, which ruled in favor of the DRA on the partiesí cross-motions for summary judgment.

The 1998 version of Rule 301.17, which controlled in this case, defines an independent contractor as one who (a) exercises an independent employment; (b) contracts to do work for multiple businesses; and (c) can employ and direct others; or (d) has been granted independent contractor status by the IRS. The petitioner argued that a district manager can qualify as an independent contractor under Rule 301.17 either by meeting subparts (a), (b) and (c) or by meeting subpart (d). Since the petitionerís district managers were granted independent contractor status by the IRS, the petitioner argued that they met subpart (d) and where thus exempt from the BPT. The DRA, however, argued that a person qualifies as an independent contractor under Rule 301.17 by meeting subparts (a) and (b) and either (c) or (d). Under the DRAís reading of the Rule, the district managers cannot be independent contractors because the do not work for more than one business, and therefore do not meet subpart (b).

The Court held that both readings of the Rule are reasonable and that it is unclear from the plain language whether subpart (d) is meant to be an alternative test to subparts (a), (b) and (c), or whether it is an alternative requirement to subpart (c). The Court held that it may consider the subsequent history of a rule in determining the intent of the former rule. The Court noted that in 2006, the DRA amended Rule 301.17 to clearly state that working for multiple business organizations is a necessary requirement for independent contractor status. The Court further found that the purpose of the 2006 amendment was to clarify the existing rule, and not to change its meaning. Accordingly, the Court held that under the 1998 version of Rule 301.17, a person must meet subparts (a), (b) and either (c) or (d) in order to be an independent contractor and qualify for an exemption from the BPT.

Wilbur A. Glahn, III and Beth L. Fowler, McLane, Graf, Raulerson & Middleton, P.A., of Manchester for the petitioner. Kelly A. Ayotte, attorney general (Anne M. Edwards, associate attorney general, and John F. Hayes, revenue counsel), for the State.


 Town of Peterborough v. The MacDowell Colony, Inc., No. 2007-230
March 14, 2008
Affirmed

Whether the respondent artistsí colony is a charitable organization entitled to a property tax exemption pursuant to RSA 72:23, V.

The MacDowell Colony is an artistsí colony consisting of thirty-two studios and various common buildings situated on 450 acres of land in Peterborough. The Colony was founded in 1907 for the purpose of promoting the arts, and conducts an artist-in-residence program through which admitted artists reside and work at the colony for a period of several weeks. Although the town had previously treated the Colony as tax exempt, Peterborough denied the Colonyís application for an exemption in 2005, finding that it was not a public charity. The parties agreed to resolve the dispute through a declaratory judgment action. On cross-motions for summary judgment, the Superior Court (Abramson, J.) determined that the Colony was entitled to the tax exemption.

On appeal, the town raised a number of arguments against a finding that the Colony is a public charity. The town argued that the creative artists who gained access to the facility were not a "substantial and indefinite segment of the general public that includes residents of the state of New Hampshire" as required by RSA 72:23-l. In particular, the town pointed out that only one New Hampshire resident was selected as an artist-in-residence in 2005. The Court held that the Colonyís mission satisfies the statue without inquiring whether the artists who actually stay at the facility comprise a "substantial and indefinite segment of the general public" because the artist-in-residence program benefits society as a whole. Moreover, the Court pointed out that RSA 72:23-l requires that a charitable organization benefit "the general public or a substantial and indefinite segment of the general public that includes residents of the state of New Hampshire," and because the Court determined that the Colony benefits the general public as a whole, it need not consider whether New Hampshire residents are included among a substantial and indefinite segment of the public benefited by the charity.

The town also argued that, contrary to established law, the Colony has no obligation to perform a charitable service, because through its admissions process, the Colony has total discretion over who will receive its benefits. The Court held, however, that the Colonyís charter "sufficiently circumscribes its discretion and defines an enforceable charitable obligation."

Finally, the town argued that since the artists-in-residence are allowed to sell the art they create at the Colony, the profits from those sales need to be accounted for. The Court, however, agreed with the Colony, and held that the statuteís prohibition against private inurement applies to the Colony, and not to the artists themselves, and the profits from the sale of any art they may create while at the Colony does not defeat the tax exempt status and need not be accounted for.

Justice Dalianis, joined by Justice Duggan, concurred specially, to explain her reasoning, which she wrote, differed in some respects from the majority. Focusing on the townís argument that the general public or an indefinite segment thereof is not the beneficiary of the Colonyís services, Justice Dalianis analogized receiving an artist-in-residence fellowship at the Colony to receiving a prize, award, or scholarship. Although only a relative few actually receive such awards, they have been upheld as benefiting the public where the potential class of recipients will be drawn from an indefinite group, i.e., the general public, as opposed to members of the charitable organization itself. Because the Colony accepts applications for the artist-in-residence program from anyone, it satisfies this test.

Robert M. Derosier, Donahue, Tucker & Ciandella, PLLC, of Exeter for the Town of Peterborough. William L. Chapman, Orr & Reno, P.A., of Concord for the respondent.


North Country Environmental Services v. State, No. 2007-419
March 14, 2008
Affirmed

Whether an amendment to RSA 72:12-a, eliminating property tax exemptions for pollution control facilities located at privately-owned landfills, is constitutional.

North Country Environmental Services ("NCES") operates a landfill site in Bethlehem. Beginning in 2002, NCES enjoyed tax exemptions under RSA 72:12-a for pollution control facilities located at the landfill. In 2006, the Legislature amended the statute to provide that the pollution control facility exemption granted under RSA 72:12-a "shall not apply to privately owned landfills or ancillary facilities located at such landfills." NCES filed a petition in the Superior Court arguing that the amendment is unconstitutional and seeking to enjoin the State from enforcing the statute. Ruling on the partiesí cross-motions for summary judgment, the Superior Court (Lynn, C.J.) found for the State.

NCES argued on appeal that the amendment violates the Stateís taxing authority under Part II, Articles 5 and 6 of the State Constitution, because the statute creates a class of propertyópollution control facilitiesóbut treats the owners of those facilities differently. The Court disagreed with NCESís contention that the relevant class of property is all pollution control facilities, but rather, only those facilities not located on landfills. The Court held that this classification, which was based on the use of the property, was appropriate. The Court distinguished Caganís Inc. v. New Hampshire Department of Revenue Administration, 126 N.H. 239 (1985) (where the Court found that a tax on prepared meals dispensed by vending machines was unconstitutional), and analogized to RSA 72:37-a (which exempts from property taxation the value of improvements made to residential property in order to assist the disabled) because the former tax was unrelated to the kind or use of property being taxed and the latter was related to use. Here, the Court held that the distinction in taxation is related to the use of the property as a pollution control facility in support of a landfill.

The Court held that the Legislature had just reasons, which reasonably promote a proper object of public welfare or interest, for taxing pollution control facilities located at landfills differently from facilities located elsewhere. The Court concluded that the Legislatureís policy of discouraging the use of landfills is a just reason for the differing treatment.

The Court also held that the amendment to RSA 72:12-a does not violate equal protection because whether pollution control facilities are taxable or non-taxable does not depend upon who owns them. Rather, the statute differentiates between uses of property, not owners of property.

Finally, the Court rejected NCESís argument that the exemption determinations made prior to the enactment of the amendment to RSA 72:12-a should remain in effect. The Court held that tax exemption statutes are to be construed to give full effect to the Legislatureís intent, and that the intent in amending RSA 72:12-a was to remove an exemption from landfills to discourage their establishment and operation. Accordingly, the Court concluded that the exemptions granted under the prior statute do not survive the amendment.

Bryan K. Gould and Philip R. Braley, Brown, Olson & Gould, P.C., of Concord for the plaintiff. Kelly A. Ayotte, attorney general (Maureen D. Smith, senior assistant attorney general), for the State.


Zoning

Glenn L. Tonnesen v. Town of Gilmanton, No. 2007-202
March 13, 2008
Affirmed

Whether a zoning ordinance, which permits aircraft takeoffs and landings in certain districts only by special exception, violates RSA 674:16, V, which provides that aircraft takeoffs and landings on private land by the landowner or resident is a valid and permitted accessory use unless specifically proscribed by the local land use regulation.

The petitioner wishes to use his property in the rural zoning district of Gilmanton for private recreational helicopter flights. The Gilmanton zoning ordinance allows aircraft takeoffs and landings in three of the six zoning districts, including the rural district, but only by special exception. The ZBA denied the petitionerís request for a special exception, and the Superior Court affirmed, and also denied the petitionerís request for a declaratory judgment.

On appeal, the petitioner argued that the zoning ordinance violates RSA 674:16, V, which provides: "Unless specifically proscribed by local land use regulation, aircraft take offs and landings on private land by the owner of such land . . . shall be considered a valid and permitted accessory use." The petitioner argued that RSA 674:16, V requires a municipality to either prohibit the use of land for aircraft takeoffs and landings outright, or to permit it as a matter of right. The Court rejected the petitionerís argument as "a false dichotomy," and pointed out that the first sentence of RSA 674:16, V expressly allows municipalities to "regulate and control" accessory uses on private land. The Court held that the petitionerís reading of the last sentence of the statute would negate the grant of authority in the first sentence to regulate accessory uses. The Court therefore held that "like other valid and permitted accessory uses, aircraft takeoffs and landings can be regulated by requiring landowners to obtain a special exception."

Robert M. Derosier and Robert D. Ciandella, Donahue Tucker & Ciandella, PLLC, of Exeter for the petitioner. Barton L. Mayer and Matthew R. Serge, Upton & Hatfield, LLP, of Concord for the respondent.

Adam Hamel is an associate with McLane, Graf, Raulerson & Middleton, P.A. in Manchester where he concentrates in commercial and probate litigation. He is a 2005 graduate of New England School of Law where he is a member of the adjunct faculty as an instructor of legal writing.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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