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Bar News - September 5, 2008

NH Supreme Court At-a-Glance July 2008 – Part 2


NH Supreme Court At-a-Glance July 2008 – Part 1


In re: Guardianship of Phuong Phi Thi Luong;
Hillsborough County Probate Court
July 2, 2008
Affirmed in part; reversed in part; and remand

· Whether, the probate court erred adopting the estate plan prepared by the Court appointed referee.

· Whether the probate court erred by ignoring the weight of the evidence, which they submit compels the conclusion that both of the estate plans were in compliance with RSA 464-A:26-a.

The Court held that the probate court was within its discretion to reject the estate plans proposed by the petitioners, but found that the Court went beyond its authority in adopting the estate plan drafted by the Court-appointed referee.

Accordingly, pursuant to RSA 464-A:26-a, I "the probate court may authorize the guardian of the estate to plan for the testamentary distribution of the ward’s estate." However, the Court went on to state that while the probate court has the ultimate "discretion of approving or disapproving a submitted plan, nothing in the statute permits the court to use a referee to draft a plan."

John D. MacIntosh, P.C., of Concord (John D. MacIntosh on the brief and orally), for the petitioners.

Ransmeier & Spellman, P.C., of Concord (John C. Rainsmeir on the brief and orally), for the respondent.

In re: Guardianship of G.S.
Merrimack County Probate Court
July 11, 2008

· Whether "substantial harm" as contemplated by RSA 464-A:2, XI is limited to harm resulting from an inability to provide for one’s "personal needs for food, clothing, shelter, health care or safety."

· Whether the evidence supported the probate court’s findings beyond a reasonable doubt that the appellant was incapacitated and that there was no less restrictive alternative to guardianship that exists for the appellant.

The appellant, G.S. was serving a sentence at the Northern Correctional Facility where he began to exhibit symptoms of delusional behavior. G.S. was transferred to the Secure Psychiatric Unit where his delusional behavior intensified. G.S. refused all medical treatment, refused to eat his meals that were delivered to his cell and expressed fear that prison staff were intending to harm him. G.S. was eventually diagnosed with delusion disorder. Believing that his refusal to treatment would result in harm to himself and others, the New Hampshire Department of Corrections filed a petition for guardian of incapacitated person for G.S. The probate court found that G.S. suffers from substantial harm because of his incapacitation and that no less restricted alternative to guardianship existed for him.

The Court found that the probate court did take into consideration the factors delineated in RSA 464-A:2, XI when it made a finding that the appellant’s mental illness prevented him "from making informed decisions regarding his health care decisions and make him unable to provide for his health care" and therefore fell within the purview of the statute. Moreover, the Court concluded that "nothing in the plain language of the statute requires that the probate court provide written illumination of all facts used in making its ultimate findings with regard to paragraph III (a) through (d)."

Finally, the Court concluded that the Department of Corrections provided the court with more than enough evidence to make a finding that G.S. was incapacitated beyond a reasonable doubt and that he was likely to suffer "substantial harm due to his inability to provide for his personal needs" health care and safety pursuant to RSA 464-A:2, XI. As a result, the Court further found that there was no less restrictive alternative to guardianship of the appellant.

Kelly A. Ayotte, attorney general (Jon C. Vinson, attorney on the memorandum of law, and Suzanne M. Gorman, senior assistant attorney general, orally), for the New Hampshire Department of Corrections.

Mosca Law Office, of Manchester (Edward C. Mosca on the brief and orally), for the appellant.


Harry A. Sleeper v. The Hoban Family Partnership
July 25, 2008
Affirmed in part; reversed in part; and remanded

· Whether the trial court erred in determining that the doctrine of res judicata barred all of the petitioners claims to Beech Street other than his claim to have an easement by deed.

· Whether the petitioners’ claims in this lawsuit and the previous owners’ cause of action constitute the same cause of action for res judicata purposes.

· Whether the trial court erred in denying the petitioners’ Motion for Summary Judgment on his claim for a prescriptive easement.

In 1979, the Town of Alton’s board of selectman released Lake Shore Avenue and a portion of Beech Street that ran from Lake Shore Avenue to Railroad Avenue from all public servitude and interests. This portion of Beech Street that was discontinued became tax lot 76. There is a beach at the end of this lot. The respondents now own lot 76, having purchased it in 1991. The respondents also own tax lot 57 on which they own a home that borders tax lot 76. The petitioner owns lots 36, 55, and 55-1. A portion of lot 55 abuts lot 76. The petitioner purchased tax lot 36 in 1991 and tax lots 55 and 55-1 in 1998.

In 1991, Albert S. and Joan K. Drew who then owned tax lots 55 and 55-1, brought a quiet title action against John J. Hoban claiming title under adverse possession to "the parcel of land adjacent, to and westerly of" their land "with frontage on Lake Winnipesauke". The court dismissed the petition finding that they had not proved that their use was exclusive. After this decision, the respondents erected a fence at the edge of Beech Street and posted no trespassing signs. Shortly after purchasing the property, the petitioner removed the fence. The respondents continued putting up no trespassing signs. In 2005 the petitioner brought the instant action to have himself declared the rightful owner of Beech Street and even if he does not that he has an easement to use it pursuant to RSA 231:43.

The Court found that because the petitioner is the successor in interest to the Drews and is in privity with them he is bound by the prior 1991 action. "In determining whether two actions are the same cause of action for the purpose of applying res judicata" the Court "considers whether the alleged causes of action arise out of the same transaction or occurrence." Here it was concluded that they did, however, it only barred an action to a particular portion of the property and not the entire lot which was subject to suit in this action. As a result, the trial court erred to the extent that it ruled that res judicata barred the petitioners’ claims with respect to other portions of the property. Finally, the Court concluded that the petitioner was entitled to a prescriptive easement because his use of the property was not adverse.

Devine, Millimet & Branch, P.A. of Manchester (David P. Eby on the brief and orally), for the petitioner.

Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and orally), for the respondents.


Charles H. Smith v. Lillian v. Donahue Trust
July 15, 2008

· Whether the contracts between the Petitioner and the Trustee are void where the Petitioner had actual or constructive knowledge that the Trustee acted outside of the scope of his authority, without authorization and not to the benefit of the Trust.

· Whether there is evidentiary support for the trial court’s implicit finding that the Petitioner lacked the requisite knowledge to void his contracts with the Trustee.

· Whether, notwithstanding the Petitioner’s lack of actual knowledge, he is not entitled to specific performance under the Restatement of Trusts.

With regards to the first issue, the Court found that the Petitioner’s constructive knowledge of the Trustee’s breach of trust was not sufficient to void the contract. Rather, the Petitioner’s actual knowledge is required by law. This follows in line with the New Hampshire statute adopting the Uniform Trustees’ Power Act. Unlike the common law, the UTPA protects a third party dealing with a trustee unless the third party possesses actual knowledge that the trustee is exceeding or improperly exercising the trustee’s powers.

As to the second issue, the Court found that the evidence presented at the trial court indicated that the Petitioner would have had constructive knowledge but not actual knowledge which is required by the statute. With regards to the third issue, the Court held that the Trust is not entitled to relief under the Restatement of Trusts because it was superseded by the UTPA.

Sager Law, P.L.L.C., of Ossipee (Richard D. Sager on the brief and orally), for the petitioner.

Krasner Law Office, of Farmington (Emmanuel Krasner on the brief and orally), for the respondent.


Derry Senior Development, LLC v. Town of Derry
July 2, 2008
Reversed and remanded

· Whether the trial court erred in upholding the denial of the plaintiffs application for site plan approval of an independent adult community development in the Town of Derry by the Town of Derry Planning Board.

The Court held that, because the New Hampshire Department of Environmental Services approved the plaintiff’s proposed sewage disposal system, the town had enacted no standards more stringent than the DES standards, and the record revealed no evidence suggesting that the Plaintiff’s proposed system would not adequately protect all water supplies, the board unreasonably and unlawfully denied the Plaintiff’s application for site plan approval.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford Andrew R. Schulman on the brief and orally), for the plaintiff.

Boutin & Altieri, P.L.L.C., of Londonderry (Steven A. Clark on the brief and orally), for the defendant.

Christopher Bennett v. Town of Hampstead and Town of Hampstead v. Christopher Bennett
July 11, 2008

· Whether the trial court erred by: 1) awarding the town attorney’s fees under RSA 676:17, II; and 2) failed to reconsider Bennett’s request for attorney’s fees.

The Court stated that "a prevailing party may be awarded attorney’s fees when that recovery is authorized by statute, an agreement between the parties, or an established judicial exception to the general rule that precludes recovery of such fees." Here the trial court found authorization for its award of attorney’s fees to the town in RSA 676:17, II which provides that a "municipality shall recover its costs and reasonable attorney’s fees actually expended in pursuing the legal action if it is found to be a prevailing party in the action." The Court held that "shall" means mandatory enforcement and that the trial court was required to award the town reasonable attorney’s fees.

With regard to the second issue, the Court found that Bennett’s Motion for Reconsideration after the ten-day deadline for such motions was untimely and as a result was properly denied. Moreover, Bennett failed to support his assertion that his due process rights were violated.

Sumner F. Kalman, Attorney at Law, P.C., of Plaistow (Sumner F. Kalman and Thea S. Valvanis on the brief, and Mr. Kalman orally), for the petitioners.

Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Salem (Diane M. Gorrow on the brief and orally), for the respondent.

Ryder Daniels v. Town of Londonderry
July 15, 2008

· Whether the Zoning Board of Appeal’s decision was unlawful and unreasonable because the Zoning Board of Appeals allowed a federal law, the Telecommunications Act of 1996 to preempt its own finding regarding the statutory criteria, or, in the alternative, that Omnipoint had not met its statutory requirements for a variance.

The petitioners Ryder Daniels and Gary Morrissett appealed an order of the Superior Court upholding the decision of the defendants, Town of Londonderry and the Town of Londonderry Zoning Board of Adjustment allowing the intervenor, Omnipoint Communications, Inc., to build a wireless communications tower in an agricultural-residential zone.

The Court found that contrary to the petitioner’s assertions, the Zoning Board of Appeals did not substitute the TCA in place of its own judgment with respect to the five variance criteria. The Court indicated that Londonderry’s Zoning Ordinance does not allow personal wireless facilities, such as the proposed town, in an agricultural-residential zone. As a result, the petitioner was required to obtain a use variance. An applicant seeking a variance must demonstrate that: 1) the variance will not be contrary to the public interest; 2) special conditions exist such that literal enforcement of the provisions of the ordinance will result in unnecessary hardship; 3) the variance is consistent with the spirit of the ordinance; 4) substantial justice is done; and 5) granting the variance will not diminish the value of the surrounding properties.

Here the Court found that the Zoning Board of Appeals acted lawfully and reasonably in finding that Omnipoint met its burden of proving the required variance criteria.

Orr & Reno, P.A., of Concord (Jeffrey C. Spear on the brief and orally), for the petitioners.

Upton & Hatfield, LLP, of Concord (Matthew R. Serge on the brief and orally), for the defendants.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Jennifer L.Parent and Kristin M. Yasenka on the brief, and Ms. Parent orally), for the intervenor.

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