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Bar News - January 15, 2010


NH Supreme Court At-a-Glance - December 2009

By:

In the Matter of Adam Muchmore and Amy Jaycox, No. 2009-312
December 4, 2009
Reverse

  • Whether the Court may modify an out of state stipulation and order concerning parental rights and responsibilities when none of the enumerated circumstances in RSA 461-A:11 exist.
A Vermont court entered a stipulation and order granting respondent primary legal and physical rights and responsibilities for the partiesí child which granted the petitioner weekly visitation. Both parents eventually moved to New Hampshire and petitioner asked the family court to modify the Vermont courtís stipulation and order because the respondent had interfered with petitionerís parental responsibilities, because the childís environment was harmful, and because a modification would serve the childís best interests. The family court concluded that respondent failed to meet any of the circumstances in RSA 461-A:11, which governs the circumstances allowing the modification of parenting plans. Nonetheless, the court modified the parenting schedule because it was in the childís best interests.

The Court held that absent the existence of any of the circumstances enumerated in RSA 461-A:11 the lower court could not modify what it concluded was a parenting plan even if the change would serve the best interests of the child. Accordingly, the Court reversed the order of the family court.

R. Peter Decato of Decato Law Office for the petitioner. Stephen P. Girdwood of Stebbins Bradley Harvey Miller & Brooks, PA for the respondent.


Amy Barnet v. Warden, New Hampshire State Prison for Women, et al; No. 2009-076
December 4, 2009
Affirmed

  • Whether the parole board violated petitionerís due process rights when it failed to hold a parole revocation hearing within the statutorily prescribed 45 days.
  • Whether the parole board violated petitionerís due process by failing to give her adequate notice of the charges against her before her preliminary hearing to her parole revocation.
Petitioner was released on parole in January 2007. In August 2008 she shoplifted in Maine but was not apprehended because she fled the store. She contacted the police and her parole officer a couple of days after the incident and confessed to the theft. She signed a statement at the county jail and received notice of a preliminary hearing as to the revocation of her parole for the next day. The notice did not describe the conduct that violated her parole, but rather referred to the petitionerís probation rules violated by number. As required by statute, a revocation hearing was scheduled within 45 days. In the meantime, the petitioner filed a pro se petition with the parole board.

At the hearing petitioner filed a supplement to her petition and requested that the board rule on her motion to remove a parole violation warrant before any further proceedings. Without objection of petitioner, the board continued the revocation hearing on its own motion, concluding that the petitioner waived the 45 day time limit. Petitioner filed a writ of habeas corpus that the superior court denied.

The Court concluded that petitionerís due process right to notice of the reasons for the revocation proceeding against her was not violated. Petitioner could not demonstrate what evidence she would have presented to oppose a showing of probable cause at the preliminary hearing had she been provided more time or a more detailed notice. The Court also concluded that because petitioner failed to show that the alleged delay of her parole revocation period beyond the statutorily prescribed 45 day time limit resulted in actual prejudice to the conduct of her defense that she was not denied her right to due process.

Richard C. Mooney for petitioner and Michael A. Delaney, Attorney General, for the respondents.


Brentwood Volunteer Firemanís Assoc. v. Daniel E. Musso, Sr.; No. 2009-075
December 4, 2009
Affirmed

  • Whether a mill privilege may be lost.
  • Whether a foreign corporation must first register with the New Hampshire Secretary of State to dissolve and pass its assets to its shareholders.
Respondent owned real property on which he operated a motor vehicle repair business. The deed to the real property granted him "mill privilege." With the permission of the petitioner, respondent used land across the road from that real property for parking and storage. The deed to that land described it as being subject to mill privileges. Respondent argued that he owned that land because his deed included a mill privilege.

"Mill privilege" means that land and water used with the mill and on which it and its appendages stand. Where the deed is silent as to the exact bounds then the deed conveys "so much land as was necessary, and customarily used with the mill." Petitioner produced a quitclaim deed dated 2007 purporting to convey the land in question from the shareholders of a foreign corporation to the petitioner. That corporation had dissolved in 1988.

No mill activity had taken place on the real properties since 1934. Accordingly, the Court affirmed the trial courtís ruling that the mill privilege had long since been abandoned regardless of the other activity on the land in question. The Court also affirmed the trial courtís ruling that the quitclaim deed validly conveyed the land in question to petitioner. The petitioner was not required to present expert witness testimony to explain the applicable foreign law and the dissolution of a foreign corporation was not "transacting business" in New Hampshire such that the corporation had to register with the Secretary of State in order to convey its assets that passed to its shareholders upon dissolution.

Craig N. Salomon for petitioner and Michael E. Chubrich for respondent.


In re: Petition of the State of New Hampshire; No. 2009-002
December 4, 2009
Remanded

  • Whether the district court erred when it failed to impose a minimum seven day sentence for driving a motor vehicle after revocation of license when the defendant drove after the court-ordered revocation period had expired but before the defendantís license was reinstated.
Defendantís license was revoked by a court for a driving while intoxicated conviction in 1991. The State arrested defendant for driving a motion vehicle in 2008; defendantís license was never reinstated, but the court-ordered revocation period had long passed. The trial court found defendant guilty, but declined to impose the statutory-mandatory minimum sentence of seven days. Instead the trial court fined the defendant and the State appealed.

The Court concluded that the applicable statutory provisions could be read in more than one way, leading to different conclusions about the applicable sentence. The Court, therefore, looked to the legislative history of the statutory language in question. The Court concluded that because the defendant drove before his license was restored that he was subject to the mandatory minimum even though the court-ordered period of revocation had expired.

James Milner, pro se. Orville B. Fitch, II, acting Attorney General, for the State.


State of New Hampshire v. Jessica Kelley; No. 2008-826
December 4, 2009
Affirmed

  • Whether the trial courtís error allowing evidence of an HGN test when the officer who administered the test testified that he did so incorrectly was harmless error.
  • Whether the lack of any chemical evidence of intoxication renders the case against the defendant as solely circumstantial.
Defendant was stopped for crossing the double yellow line, nearly side-swiping a police cruiser. Defendant admitted to consuming alcohol upon questioning. The officer testified that she failed three field sobriety tests including the horizontal gaze nystagmus (HGN). The officer testified that he did not administer the test correctly. Upon appeal the State admits that the evidence of the test was erroneously admitted at trial. The Court found the error harmless beyond a reasonable doubt because the evidence at issue was merely cumulative or inconsequential due to the other overwhelming evidence of defendantís intoxication.

Defendant argued that because the State failed to produce chemical evidence of her intoxication that the case against her was solely circumstantial, requiring the State to prove impairment beyond a reasonable doubt to the exclusion of all rational conclusions except guilt. The Court rejected this argument, concluding that chemical evidence is not the sole form of direct evidence of impairment. Specifically, the defendant admitted to consuming alcohol, the officer observed her cross a double yellow line and nearly run into his cruiser, and defendant displayed slow and unsteady movements in the presence of the officer. To the extent prior Court case law conflicts, the Court overruled it.

Timothy P. Gurshin for defendant. Orville B. Fitch, II, acting Attorney General, for the State.


State of New Hampshire v. Ronald McKeown; No. 2008-664
December 4, 2009
Affirmed

  • Whether defendant was required to register as a sex offender for life or for only ten years.
Defendant was convicted for two 1996 misdemeanor sexual assaults. At the time, the statute requiring him to register as a sex offender required him to register for ten years. The legislature subsequently amended the statute to require lifetime registration for any defendant convicted of more than one misdemeanor sexual assault. In 2007, after the ten year window had expired, the State charged defendant with failing to register. The trial court dismissed the indictments against defendant for failing to state a crime. The Court affirmed the ruling of the superior court, concluding that the applicable statute did not apply to two misdemeanor sexual assault convictions arising from a single, criminal episode.

Stephanie Hausman, Office of Appellate Defender, for defendant. Kelly A. Ayotte, Attorney General, for the State.


State of New Hampshire v. Patrick W. Joyce, III; No. 2008-755
December 4, 2009
Reversed and remanded

  • Whether the defendant was detained when police called for a narcotics-sniffing dog.
  • Whether the police had reasonable suspicion to detain defendant after receiving an anonymous tip that a woman was smoking marijuana outside of a certain building.
Police received an anonymous tip that a woman named Thelma in a gray, hooded sweatshirt was smoking marijuana outside a certain building. Upon arrival at that building the police approached a car parked in the buildingís lot. The car had two occupants: a male driver, defendant, and a woman in a gray, hooded sweatshirt named Thelma. Both were smoking cigarettes; one officer testified that people who smoke marijuana often use cigarettes as masking agents.

The police removed Thelma from the car and questioned her. She denied smoking marijuana, but appeared nervous and purportedly smelled of fresh marijuana. At the same time, another office spoke with defendant through the car window. The officer did not smell any marijuana. The officer explained why they were there, asked if defendant knew anything about a woman smoking marijuana and asked about the defendantís activities that evening. The officer asked for permission to search the car. Defendant denied consent to any search, explaining that the car belonged to his mother. The officer then told the other officer to call in a "narcotics detection dog."

Defendant overheard the officerís request and asked what was going to happen. It was at this point that another officer smelled marijuana while talking to defendant. That officer explained that if the dog alerted on the car that it would be impounded and a search warrant requested. Defendant admitted to the presence of marijuana in the car and was charged with possession of a controlled substance with intent to distribute. Defendant moved to suppress the evidence against him, arguing that the police lacked reasonable suspicion to seize him, that the police subjected him to custodial interrogation without informing him of his Miranda rights, and unlawfully exceeded the scope of the stop.

The Court concluded that the police seized the defendant, at the latest, when he overheard the officer call for a narcotics-sniffing dog. The police had been on the scene for about ten to fifteen minutes at that point, three officers surrounded the car, the defendant had been asked to step out of the car, the police repeatedly questioned him about marijuana despite his denials of any wrong-doing, and the police never told him that he was free to leave. The police did not have reasonable suspicion at that point to detain defendant, as they had no basis to suspect that he had committed a crime given that the tip did not implicate or concern him in any manner. The odor of marijuana detected after the call was made for the dog could not justify defendantís seizure. Accordingly, the Court reversed the orders of the superior court and remanded the matter.

Stephanie Hausman, Office of Appellate Defender, for defendant. Kelly A. Ayotte, Attorney General, for the State.


State of New Hampshire v. Arthur Kousounadis; No. 2008-248
December 4, 2009
Affirmed in part, reversed in part and remanded

  • Whether the trial courtís failure to instruct the jury as to the definition of deadly weapon was subject to harmless error analysis.
Defendant and his wife divorced in 1996 after more than 20 years of marriage. They reconciled from 2001 through 2006, living together in Massachusetts. After the defendant moved out in October 2006 the complainant obtained a restraining order against him from a Massachusetts court. The defendant bought a semi-automatic shotgun from a store in New Hampshire about a month later and lied on the application about being subject to a restraining order. A few days later he drove to the complainantís place of work at a mall in Nashua. As the complainant was getting into her car after work defendant approached her, telling her he wanted to speak with her. Complainant told the defendant that the relationship was over. Defendant returned to his vehicle, opened the back of it, and pulled out the gun. Complainant ran toward her place of employment and heard gunshot while running. Police found a hole in the mall wall, a shell casing at the scene, and the plastic packaging material used in such shells near complainantís car.

Defendant challenged the admission of statements he made to the police after he turned himself in, challenged the ability of New Hampshire courts to enforce the orders of a Massachusetts court, challenged the sufficiency of the evidence, and challenged the imposition of an enhanced sentence. The issue of note in this case involves the jury instructions.

Defendant was charged with criminal threatening for placing the complainant in fear of imminent bodily injury by removing a deadly weapon from his car. The court did not instruct the jury as to the definition of deadly weapon, an element of the offense. The Court concluded that a firearm was not per se a deadly weapon, but rather depended on the manner in which it was used, intended to be used, or threatened to be used. Accordingly, the Court erred when it denied the defendantís request to instruct the jury on the statutory definition of deadly weapon, but instead instructed the jury that the shotgun was a per se deadly weapon. This instruction removed from the juryís consideration an element of the offense, criminal threatening. The Court rejected the Stateís argument that the juryís verdict necessarily included a factual finding that defendant used the firearm in a manner that qualified it as a deadly weapon. The failure to instruct the jury as to an element of the offense is a constitutional error not subject to harmless error analysis. Rather, the error required outright reversal as to that charge.

Francis G. Holland for defendant. Kelly A. Ayotte, Attorney General, for the State.


Ferson-Lake, LLC v. City of Nashua; No. 2008-861
December 16, 2009
Affirmed

Petitioner submitted a site plan to the municipal planning board for approval to build a five-unit elderly housing development. The board denied the application citing the municipal land use code. Following a second hearing, the board voted again to deny the application citing the land use code and petitionerís failure to comply with administrative rules of the Human Rights Commission (HRC).

The Court rejected the petitionerís argument that the board erroneously interpreted an ordinance to require more than a written certification by petitioner that it will comply with applicable HRC regulations. The Court agreed with the town that reading the ordinance in the context of the entire elderly housing ordinance lead to a conclusion that the petitioner must submit proof that the project with comply with HRC regulations. To conclude otherwise would require the town to approve projects that will violate the HRC regulations so long as the petitioner promises to comply with the regulations.

The Court also concluded that, contrary to petitionerís arguments, the board did not enforce administrative rule Hum 302.03 when it denied the application. Rather, the board applied Hum 302.03 in determining whether or not to approve the site plan application. Accordingly, the Court affirmed the rulings of the superior court.

Benjamin T. King, Douglas, Leonard & Garvey, on behalf of petitioner. Stephen M. Bennett, Office of Corporation Counsel, on behalf of the respondent.


Ferson-Lake, LLC v. City of Nashua; No. 2008-861
December 16, 2009
Affirmed


Petitioner submitted a site plan to the municipal planning board for approval to build a five-unit elderly housing development. The board denied the application citing the municipal land use code. Following a second hearing, the board voted again to deny the application citing the land use code and petitionerís failure to comply with administrative rules of the Human Rights Commission (HRC).

The Court rejected the petitionerís argument that the board erroneously interpreted an ordinance to require more than a written certification by petitioner that it will comply with applicable HRC regulations. The Court agreed with the town that reading the ordinance in the context of the entire elderly housing ordinance lead to a conclusion that the petitioner must submit proof that the project with comply with HRC regulations. To conclude otherwise would require the town to approve projects that will violate the HRC regulations so long as the petitioner promises to comply with the regulations.

The Court also concluded that, contrary to petitionerís arguments, the board did not enforce administrative rule Hum 302.03 when it denied the application. Rather, the board applied Hum 302.03 in determining whether or not to approve the site plan application. Accordingly, the Court affirmed the rulings of the superior court.

Benjamin T. King, Douglas, Leonard & Garvey, on behalf of petitioner. Stephen M. Bennett, Office of Corporation Counsel, on behalf of the respondent.


In re: Guardianship of Peter R.; No. 2009-210
December 31, 2009
Affirmed

  • Whether the evidence submitted at a guardianship hearing was insufficient because the petitioner failed to introduce expert medical evidence.
  • Whether the record established a need for a guardianship where the ward has cooperated with medical professionals and has not committed any acts of violence.
Respondentís father filed for a guardianship because the respondent refused medication for his psychotic disorder, failed to eat, was unable to continue in his graduate program, and was the subject of an emergency involuntary admission. Only the petitioner and respondent testified at the trial. The court found the respondent incapacitated and that a guardianship was necessary.

The Court rejected the respondentís argument that the evidence at trial was insufficient to establish his incapacity because the petitioner failed to present expert medical evidence. Incapacity is a legal and not a medical conclusion. The respondent also argued that a guardianship was not necessary because since his hospitalization he had received adequate nutrition, not committed any acts of violence, and cooperated with medical professionals. The Court rejected this argument because the record supported a conclusion that the respondent was likely to discontinue his medication, resulting in harm to himself or others, if a guardian was not appointed. The Court also held that when an individual has shown limited insight into his mental illness and has impaired judgment regarding his need for medication, the individual is not an appropriate candidate for a springing guardianship or health care power of attorney. Accordingly, no less restrictive alternative than a guardianship existed.

Edward W. R., pro se, and Rebecca S. McBeath of the Law Office of Rebecca McBeath for respondent.


In re: Michele Sukerman and William Sukerman; No. 2009-216
December 31, 2009
Affirmed

  • Whether an accidental disability retirement benefit is marital property in a divorce proceeding and subject to equitable division.
The parties married in October 1988 and divorced twenty years later due to irreconcilable differences. Respondent worked as a firefighter from 1991 to 2007 when he suffered a heart attack forcing him to retire. His pension included an accidental disability retirement benefit and an ordinary retirement benefit. The family court concluded that both benefits were contributory and, therefore, divisible property.

Respondent argued that the accidental disability retirement benefit was not marital property. The Court affirmed the ruling of the family court that the benefit was, in fact, marital property subject to equitable distribution. Only true disability benefits are not subject to equitable distribution. Utilizing a mechanistic approach, all property acquired during a marriage without regard to title or to when or how acquired is deemed marital unless it is specifically excepted by statute. RSA 458:16-a contains no exception for accidental disability retirement benefits.

Cynthia Weston and Nancy DeAngelis of Legal Resource Strategies, for petitioner. Joshua Gordon, Law Office of Joshua Gordon, for the respondent.


State of New Hampshire v. Sean Brown; No. 2008-517
December 31, 2009
Affirmed

  • Whether four charges of sale of narcotics that occurred during separate criminal episodes were related and properly joined for trial.
Defendant sold drugs on four separate occasions to a cooperating individual (CI). Each sale took place within a mile of the other buys. Prior to each offense the police searched the CI for weapons, contraband and money to maintain the integrity of the sales. The CI met the defendant in a gray car with New York license plates for each purchase. The first transaction did not specifically identify the plate of the car, and the three latter sales identified the plates as CXV 7985. The police surveilled the first two buys via video. The CI wore a wiretap the second two buys. The CI identified the defendant as the seller in all four transactions and the police witnessed the defendant in the driverís seat in the last three transactions. The police also witnessed the defendant drive the same vehicle while his residence was under surveillance.

Defendantís original convictions were reversed for improper joinder. The Court adopted a new rule for joinder before defendantís retrial. The State moved for joinder at the retrial and the superior court granted the request over the objection of the defendant. The Court affirmed the finding of the superior court that the four charges were related and that joinder would not offend the best interests of justice.

Superior Court Rule 97-A governs the joinder of criminal offenses, distinguishing between charges that are related and unrelated. The charges in this case were related and, therefore, properly joined for trial. Some offenses that occur during separate criminal episodes are related if they are "logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct." Whether offenses that occur during separate criminal episodes are related is largely determined by the close relationship among the offenses with respect to both the underlying charged conduct and the evidence to be used to prove the charges. The Court considered the following factors to determine whether charges arising from separate criminal episodes are related: (1) the temporal and spatial relationship among the underlying charged acts; (2) the commonality of the victim(s) and/or participant(s) for the charged offenses; (3) the similarity in the defendantís mode of operation; (4) the duplication of law regarding the crimes charged; and (5) the duplication of witnesses, testimony and other evidence related to the offenses. No single factor is dispositive on the question of relatedness. The connection between the charged offenses cannot rest solely upon the accusedís propensity to engage in criminal conduct.

The Court expressly rejected the argument that the State must affirmatively prove that the charges would be mutually admissible in hypothetical separate trials under Rule of Evidence 404(b) in order to comprise related offenses for purposes of joinder. The Court concluded that the charges were related because they comprised a series of controlled buys within one mile of one another over three weeks, involved the same individuals in the same car in the same manner for the same narcotics, and involved overlapping testimony as to contextual background and surveillance activity. The Court rejected the defendantís argument that joinder allowed the State to improperly rely upon propensity evidence because the State did not argue that the defendant must have committed any one sale because he committed the other three or argue that stronger evidence overcame weaker evidence.

Paul Borchardt, Office of Appellate Defender, for defendant. Kelly A. Ayotte, Attorney General, for the State.


State of New Hampshire v. Nadir Mohamed; No. 2008-558
December 31, 2009
Sentence vacated and remanded

  • Whether the mandatory minimum sentence pursuant to RSA 651:2, II-g applied to a conviction for receipt of stolen property when that property is a firearm.
Defendant was convicted of felony receipt of stolen property, specifically a handgun. The superior court sentenced the defendant to three to six years, the mandatory minimum for offenses involving a deadly weapon if that weapon is a firearm. RSA 651:2, II-g.

The Court concluded that the mandatory minimum sentence did not apply because the defendantís felony conviction for receiving stolen property did not include the element of possession, use or attempted use of a deadly weapon. The elements of the offense of felony receiving stolen property included: 1) defendant received property of another knowing it had been stolen, or believing that it had been stolen, with a purpose to deprive the owner thereof, and 2) the property stolen was a firearm. A firearm is not a per se deadly weapon. Rather, whether a firearm is a deadly weapon is a question of fact.

Martin K. Glennon for defendant. Kelly A. Ayotte, Attorney General, for the State.


Alfred Huard v. Town of Pelham, et al; No. 2009-228
December 31, 2009
Affirmed

  • Whether the plain language of the stipulation required an enforcement of settlement.
  • Whether the expiration of a use variance constituted an unlawful and unconstitutional taking.
  • Whether petitioner had to exhaust his administrative remedies before he could seek judicial relief.
Petitioner owned and operated an automobile transmission repair business. In 2005 he purchased property in a residential zone which he used for both business and residential purposes. Petitioner believed that the use was permissible pursuant to a 1985 zoning variance granted to the previous owners of the real property. The respondent town sent petitioner a letter indicating that the variance had expired due to one-year or longer of non-use. Petitioner did not appeal the compliance officerís decision that the variance expired, but instead applied for a new use variance that was denied. Petitioner did not file a request for rehearing with the ZBA. Petitioner filed for injunctive relief and declaratory judgment in the superior court.

Two months before trial the parties entered into a stipulation to stay the superior court proceedings pending further proceedings at the local level. The townís administrative official issued a decision that the 1985 use variance remained in force. Abutters appealed the decision and the ZBA concluded that the variance had expired due to non-use for more than a year due to a 1989 foreclosure on the property.

Petitioner filed a motion to enforce settlement that the court denied, arguing that the ZBA decision violated the terms of the stipulation. Petitionerís argument that the stipulation limited the scope of the local proceedings to a single issue ignored the plain meaning of the stipulation. The stipulation stayed the superior court proceedings so that the town could make a decision "on the issue whether the original variance can be reasonably construed as permitting the proposed transmission repair use, or such other articulation of this issue as the administrator shall make." The stipulation specified that abutters would be given notice and that appeals could be made to the ZBA.

The Court rejected Petitionerís argument that the superior court erroneously granted summary judgment on the basis that he failed to exhaust his administrative remedies because pursuit of the remedies would have been a waste of time and likely to result in the denial of his requests. The questions presented by the case were not peculiarly suited to judicial rather than administrative treatment, but rather were the type of issues that belong in the first instance to designated local officials.

Lastly, the Court rejected petitionerís argument that the townís actions constituted an unlawful taking. The expiration of a use variance is not equivalent to the prohibition of normal private development. Petitioner did not demonstrate that no other businesses could operate at the property, and did not demonstrate any impairment to his use of the property for residential purposes. The record was devoid of any evidence regarding the appraisals of the property or estimates of how the inability to repair transmissions on it affected its value.

Jean-Claude Sakellarios, Sakellarios & Associates, LLC, and Robert M. Walsh, Walsh & Associates, for petitioner. John L. McGowan and John J. Ratigan, both of Donahue, Tucker & Ciandella, PC, for respondents.


South Willow Properties, LLC v. Burlington Coat Factory of New Hampshire, LLC; No. 2008-706
December 31, 2009
Affirmed

  • Whether a dismissal of a possessory proceeding for failure to specify the grounds for eviction amounts to res judicata as to subsequent eviction proceedings based on the same set of facts.
  • Whether the landlord waived its right to evict by continuing to accept rent when the notice of eviction and notice to quit indicated that acceptance of rent was made with a reservation of rights and over the course of years during a dispute.
  • Whether the terms of the lease allowed the tenant to engage in self-help.
South Willow leased a commercial property to tenant Burlington Coat Factory (BCF). When BCF moved into the property there were occasional leaks in the roof that South Willow repaired satisfactorily. BCF then undertook renovation to the property that resulted in several, severe roof leaks. BCF agreed to pay for the engineering services and construction costs to remedy the leaks. South Willow subsequently told BCF that none of the leaks had been resolved, and the parties continued to disagree about the adequacy of the repairs to the roof. BCF told South Willow that it was the landlordís responsibility to repair the roof and that BCF would replace the rook at South Willowís expense if South Willow would not. South Willow instructed BCF not to engage in any type of replacement without written permission and that doing so would constitute a breach of the lease between the parties. Without notification to South Willow, BCF signed a contract to replace the roof.

South Willow subsequently sent BCF a letter that it would locate a contractor to replace the roof. BCF responded that it had already contracted with a roofing contractor to do so. BCF commenced work that same day. South Willow informed BCF to cease all work; BCF ignored the instruction. South Willow served a notice to quit that the district court eventually dismissed for a lack of specificity. South Willow issued a new notice to quit and eviction notice. The district court ordered the issuance of a writ of possession.

The Court ruled that the second action was not barred by res judicata because the district court did not reach a final judgment on the merits in the first case. Rather, the courtís order specifically said that it did not address the merits of the claims but dismissed the matter for lack of sufficient notice. A dismissal for a defect of pleadings or disposal of an action on grounds other than the merits does not bar subsequent actions. The Court also rejected the argument that the landlord waived its right to evict by continuing to accept rent. The parties engaged in negotiations and discussions concerning the roof over a period of years. The notice to evict and notice to evict stated that all rent payments were accepted with a reservation of rights under the notice and any subsequent eviction proceedings. Acceptance of rent under the circumstances did not amount to a waiver of the right to evict. Lastly, the Court concluded that the plain language of the lease required BCF to submit plans and specifications to South Willow for proposed work and to receive written approval before undertaking any alterations or renovations. Only after the submission of such plans, and refusal of the landlord to authorize the proposed renovations may a tenant exercise self-help as authorized by the language of the lease. BCF submitted only bids and not detailed plans or specifications. Accordingly, BCF was not permitted to engage in self-help.

James Ogorchuck and John Mark Turner, both of Sheehan, Phinney, Bass & Green, PA, for plaintiff. William B. Pribis, of Cleveland, Waters & Bass, PA, for defendant.



Dawnangela Minton is an attorney with Bernstein Shur in Manchester. As a member of the Litigation Practice Group, she focuses on commercial, business, and employment litigation. Minton is a Manchester resident and has over 10 years of trial and appellate experience.

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