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Bar News - November 14, 2008


October 2008 Supreme Court At-a-Glance

By:
Constitutional

Town of Canaan v. Secretary of State; 2008-391
October 29, 2008
Affirmed

  • Whether the trial court erred in denying petitioner’s request to declare that the New Hampshire House of Representatives’ current apportionment of districts is unconstitutional and to enjoin the 2008 primary and general elections.
  • New Hampshire’s legislative districts were twice reapportioned since the federal decennial census in 2000: First in 2002 and then in 2004. In 2006, following its adoption by the Legislature, Constitutional Amendment Concurrent Resolution 41 (CACR 41) was adopted by New Hampshire voters. CACR 41 reintroduced “floterial” districts to the legislative landscape. The petitioner sought a third redistricting.

    The Court held that immediate reapportionment was unnecessary because according to the plain meaning of Part 2, Article 2 of the New Hampshire Constitution (the court found nothing in voter guides explanation of CACR 41 to assist them in deciding the issue), reapportionment is required each decade after the regular session following the federal census which would not be until 2010.


    Criminal

    Rita MacPherson v. Jay S. Weiner; 2007-808
    October 30, 2008
    Affirmed


  • Whether the district court erred in extending a final protective order for an additional five years pursuant to RSA 633:3-a, III-c (2007).
  • On September 22, 2005, the plaintiff obtained a final protective order against the defendant. The defendant was subsequently convicted of violating the protective order. On August 30, 2006, the district court extended the order for one year. There was no evidence that the defendant violated the protective order during that year. On August 28, 2007, the plaintiff requested and the trial court granted a five-year extension.

    The Court held that there was sufficient evidence in the record to support the finding that the defendant’s actions in driving by the plaintiff’s residence multiple times in violation of the protective order only fifteen months earlier together with the plaintiff’s reasonable fear constituted good cause. The Court considered the statutory interpretation of “good cause” in RSA 633:3-a, III-a and found that whether “good cause” exists directly relates to the safety and well being of the plaintiff. For a showing of “good cause,” the trial court must, therefore, assess whether the current conditions are such that there is still a concern for the safety and well being of the plaintiff. To do so, the trial court must review the circumstances of the original stalking and any violation of the order. The trial court should also take into account any present and reasonable fear by the plaintiff. Where the trial court determines that the circumstances are such that without a protective order the plaintiff’s safety and well being would be in jeopardy, “good cause” warrants an extension.

    Rita MacPherson, by brief, pro se
    Troy Watts of North Woodstock and Neil F. Faigel of Andover, MA by brief for the defendant.



    State of New Hampshire v. Anthony Balliro; 2007-500
    October 30, 2008
    Affirmed


  • Whether the trial court engaged in an unsustained exercise of discretion by denying the jury instruction for the justified use of deadly force to “prevent an attempt by the trespasser to commit arson”. See, RSA 627:7 (2007)
  • The defendant stabbed Steven Hayes five times on July 5, 2006 causing his death. On this same day, emergency personnel responded to fires at the defendant’s restaurant (Moose Tracks) and his apartment building. Emergency respondents testified that upon arriving at Moose Tracks where Hayes was found stabbed, they discovered fires in the restaurant’s restrooms and upstairs office. The fire investigator testified that these fires were intentionally set.

    At least four different areas within the defendant’s apartment were also intentionally ignited. The medical examiner testified that Hayes was dead before the fire at the restaurant started. At the time of arrest, the defendant exhibited no defensive wounds or marks on his body. The defendant testified that he noticed Hayes’ car outside the restaurant and went to Moose Tracks to investigate where he found Hayes. He testified that he noticed flames for the first time as Hayes moved towards him. Upon noticing the flames, “[his] first thought was just to get out of there.” The trial court gave instructions on self defense and defense against burglary but not defense of premises against arson.

    The Court held that the trial court did not engage in an unsustainable exercise of discretion by denying a requested instruction. The Court found that there was insufficient evidence in the record for the jury to reasonably conclude that the defendant stabbed Hayes “to prevent an attempt by [Hayes] to commit arson.” The Court stated that the defendant admitted that he stabbed Hayes with the sole intention of fleeing the premises.

    Kelly A. Ayotte, Attorney General (Thomas E. Bocian, attorney on the brief and orally), for the State
    Christopher M. Johnson, Chief Appellate Defender, of Concord, on the brief and orally, for the defendant



    State of New Hampshire v. Peter Clark; 2008-019
    October 30, 2008
    Affirmed


  • Whether there was sufficient evidence to find that images on the defendant’s computer were of real minor children and that he normally possessed child pornography
  • In 2002 and 2003, the defendant became the subject of an investigation involving his internet communications with Detective James McLaughlin of the Keene Police Department whom the defendant believed to be a 14-year old boy. The defendant and Detective McLaughlin as the fictitious child communicated regularly by internet “chats” or instant, real time, messaging and were of a graphic sexual nature. The defendant was arrested during his attempt to meet the fictitious child. Special Agent Andrew Murphy, a computer forensic specialist for the United States Secret Service, subsequently conducted a forensic examination of the computer, which exposed the ten images that are the basis for the underlying indictments.

    The Court held that the trial court could reasonably have concluded that each image depicted a real child without the aid of expert testimony. In addition, the exhibits submitted at trial were not of such inferior quality or insufficient size as to make this determination impossible. Furthermore, the State did present expert testimony in this regard.

    The Court held that there was sufficient evidence for the trial court to find beyond a reasonable doubt that the defendant knowingly possessed certain images. Perhaps the most damaging to the claim that the images were the result of unwanted “pop ups” were the defendant’s own statements to Detective McLaughlin that he possessed child pornography. The Court also stated that under RSA 649-A:3, time is not an element of the crime; therefore, any discrepancy as to the date of possession is not fatal to the State’s case as long as possession could be found on or about the date alleged in the indictment.

    Kelly A. Ayotte, Attorney General (Nicholas Cort, Assistant Attorney General, on the brief and orally), for the State
    Nelson, Kinder, Mosseau & Saturley, PC, of Manchester (John C. Kissinger, Jr. and Michael J. Murphy on the brief, and Mr. Kissinger orally), for the defendant



    State of New Hampshire v. Christina M. Downes; 2007-735
    October 8, 2008
    Affirmed


  • Whether a posted speed limit was valid if it had not been established pursuant to an engineering and traffic investigation or in accordance with the manual on uniform traffic control devices published by the United States Department of Transportation.
  • On May 23, 2007, a Portsmouth police officer ticketed Ms. Downes for driving 44 miles per hour in a posted 25 mile per hour speed zone. According to the officer, he issued the ticket because the defendant’s speed was unreasonable for the portion of road on which she was traveling. At trial, she moved to dismiss upon the basis that the State had not produced an engineering study justifying the posted speed limit and “object[ed] to the state laying the foundation of its case without first producing a copy” of such a study. The trial court denied the motion, found that the State had not violated any discovery rule and found the defendant guilty.

    The Court held that the defendant did not overcome the presumption that the posted speed limit was valid; thus, the trial court did not err by denying the defendant’s motion to dismiss in convicting her upon the prima facie evidence of her unreasonable speed.


    State of New Hampshire v. Steven Gubitosi; 2006-283
    October 10, 2008


  • Whether the prosecutor was not appointed properly pursuant to RSA 7:33 or RSA 661:9, III, entitling the defendant to a new trial.
  • Whether RSA 644:4, I (b) was unconstitutionally over broad.
  • The defendant, a former police officer in Merrimack County for seventeen years, was convicted of three counts of harassment and one count of stalking. Deputy Belmont County Attorney Wayne Coull was asked to prosecute the Merrimack County charges (Attorney Coull had prosecuted the stalking charge against the defendant in Belknap County). Prior to trial the defendant moved to quash the pending charges arguing that Coull did not have the authority to prosecute the matter because he had not been properly appointed by the trial court. The trial court denied the motion.

    Following a statutory interpretation of RSA 7:33 and RSA 661:9, III, the Court held that disqualification based on a conflict of interest from a particular case does not create the type of vacancy contemplated by under those statutes, and, therefore, the trial court was not required to appoint a county attorney under the circumstances of this case.

    The Court held that RSA 644:4, I (b) is not unconstitutionally over broad on its face. The Court distinguished RSA 644:4, I (b) from the subsections found unconstitutional in State v. Brobst, 151 NH 420, 2004 (644:4, I (a)) and in State v. Pierce, 152 NH 790, 2005 (644:4, I (f)). Unlike RSA 644:4, I (a) and (f), RSA 644:4 I (b) does not apply to “any call made to anyone anywhere at any time whether or not conversation ensues.” In addition, RSA 644:4, I (b) requires that these repeated communications be made with the purpose to annoy or alarm another. With these restrictions, the scope of RSA 644:4, I (b) is narrowly tailored to the illegal communications sought to be prevented.

    Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State
    Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant



    State of New Hampshire v. Christopher Legere; 2007-396
    October 15, 2008
    Affirmed


  • Whether the trial court erred in admitting testimony of various witnesses.
  • During the overnight hours of June 24-25, 2006, Denoncourt rode his motorcycle to Three Cousins Pizza and Bar (Three Cousins) in Manchester. When he arrived, he encountered William Hill and Tracey Beardsell outside. Shortly thereafter, Hill, Denoncourt and Beardsell argued about various things resulting in attracting the attention of the patrons already inside Three Cousins and numerous people including the defendant exited the bar. Outside the bar, a melee began, although it is not clear who was involved. During the fight, several gunshots were fired, one of which struck Denoncourt in the chest. The defendant (a member of the motorcycle group the Outlaws) was subsequently indicted on two alternative counts of second degree murder. Following a jury trial, the defendant was convicted on both counts.

    The Court held that witness, Cheryl Diabo, was not “unavailable for purposes of the federal confrontation clause and that her prior statement was not barred by it.” The Court stated that the jury had the opportunity to assess Diabo’s testimony and its reliability, and the defendant had the opportunity to confront her about any or all of these recollections. In addition, the defendant was able to show that which is often a prime objective of cross-examination that Diabo had a bad memory.

    The Court held that the trial court did not err in admitting the expert testimony of Terry Katz about the Outlaws, Hells Angels and other similar motorcycle groups and about their size, history and organizational structures. The Court stated that Katz’ testimony about the violent nature of these groups and that they lived by their own rules and without regard to society’s rules was evidence not only as why the defendant acted the way he did, but also why witnesses were not as forthcoming as they might otherwise have been. The Court found that the evidence was highly probative on issues in dispute and that had the defendant feared the jury’s use of the challenged evidence when he believed other evidence was available, he could have requested a limiting instruction, but did not do so.

    The Court held that the trial court’s decision to admit Detective John Patti’s testimony about McManus’ state of mind at the time of his interview was not an unsustainable exercise of discretion. The Court stated that in testifying that McManus was concerned for his safety, Patti was relating the non-existing state of McManus’ mind. Thus, his testimony fell within the ambit of Rule 803(3).

    Kelly A. Ayotte, Attorney General (Thomas E. Bocian, attorney, on the brief, and N. William Delker, Senior Assistant Attorney General, orally), for the State
    Christopher M. Johnson, Chief Appellate Defender, of Concord, on the brief and orally, for the defendant
    Christopher Legere, by brief, pro se



    State of New Hampshire v. Sean McGurk; 2007-533
    October 16, 2008
    Affirmed


  • Whether the trial court erred in denying the defendant’s motion to vacate his conviction on the falsification of evidence.
  • Whether the trial court violated the double jeopardy clause of the United States and New Hampshire Constitutions in light of his conviction and sentence.
  • Whether the trial court erred in denying the defendant’s motion for a new trial based upon a discovery of new evidence.
  • On August 23, 2004, State Trooper Travis Anderson was dispatched to investigate a complaint of a suspicious pickup truck in the cul-de-sac at the end of Norris Road in Orford. The defendant was seated in the passenger seat. Anderson arrested the driver and told the defendant that he could leave. The defendant left the scene on foot. As Anderson began an inventory search of the car, the defendant returned to the scene where he interfered with the search by repeatedly demanding that the driver be released. The defendant began yelling and swearing at Anderson and as Anderson turned away from the defendant and attempted to finish the inventory search, the defendant approached him from behind.

    At that point, Anderson then arrested the defendant for obstructing government administration. While checking items that were in the car, Anderson realized that he could not locate a plastic bag as marijuana that he had earlier found. When they arrived at the police station, McGurk opened his mouth, stuck out his tongue and exhaled into Anderson’s face whereupon Anderson detected an odor of marijuana on the defendant’s breath and identified a piece of marijuana on his tongue. The defendant was indicted and on May 2, 2005 pled guilty to two counts of falsifying physical evidence and one count of possession of marijuana. On December 22, 2006, over a year after his guilty plea, the defendant filed several motions challenging his conviction. The trial court denied the motions.

    The Court held that given that evidence of police misconduct was purged, a suppression motion would likely have been unsuccessful. Therefore, under New Hampshire State Constitutional analysis, counsel’s failure to file such a motion did not constitute ineffective assistance.

    The Court held that each of the defendant’s offenses constituted separate offenses (even though they arose out of the same act of ingesting marijuana) and, therefore, did not violate the double jeopardy clause of the New Hampshire Constitution.

    The Court declined to address the defendant’s argument for a new trial because the standard that was applied was for withdrawing a guilty plea because the defendant pled guilty and then went on to trial.

    Kelly A. Ayotte, Attorney General (Karin M. Eckel, attorney, on the memorandum of law and orally), for the State
    DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler and Christopher A. Dall on the brief, and Mr. Dall Orally), for the defendant



    Education

    Londonderry School District SAU #12 v. State of New Hampshire; 2006-258
    October 15, 2008
    Dismissed (3-2)


    The petitioners brought this action in 2005 seeking a declaratory judgment that House Bill 616 (the statute previously governing education funding and allocation) was unconstitutional.

    In 2006, this Court affirmed the ruling that the State had failed to define a constitutional adequate education and retain jurisdiction over the Court pending legislative response and stayed the remaining issue. The Legislature responded to the definitional issue by enacting Laws 2007, Chapter 270 which is codified at RSA Chapter 193-E. The petitioners did not challenge the constitutional sufficiency of this definition. In response to the Court’s July 25, 2008 order requiring the interested parties to file brief memoranda in light of this legislation (Laws 2007, Chapter 262; Laws 2007, Chapter 263:35; Laws 2008, Chapter 173), the petitioners and amicus curiae NEA New Hampshire allege several infirmities in Laws 2008, Chapter 173.

    The Court declined to exercise its discretion to retain jurisdiction and dismissed this action as moot because House Bill 616, as it related to the original petition is no longer in effect. “Although insuring a constitutionally adequate education is undoubtedly a matter of pressing public interest, the relevant statutory provisions at issue in this case are no longer in effect and retaining jurisdiction would not cure “continued uncertainties in the law.””

    Note: Chief Justice Broderick and Justice Duggan each wrote dissenting opinions.

    Orr & Reno, PA of Concord (William L. Chapman on the memorandum), for the petitioners
    Kelly A. Ayotte, Attorney General (Anne M. Edwards, Associate Attorney General, and Laura E. B. Lombardi, Assistant Attorney General, on the memorandum) for the State
    David Frydman and Jeffrey A. Meyers, of Concord, on the memorandum for the Speaker of the New Hampshire House of Representatives and the President of the New Hampshire Senate, as amici curiae
    James F. Allmendinger, of Concord, staff attorney, on the memorandum, for NEA-New Hampshire, as amicus curiae



    Family Law

    In re Alexis O; 2008-133
    October 29, 2008
    Reversed and Remanded


  • Whether the trial court erred in ruling that because the interstate compact on the placement of children (ICPC) applied the mother was not allowed to take her daughter to Arizona until Arizona authorities had notified DCYF (New Hampshire Division for Children, Youth and Families) that this placement did not appear to be contrary to the child’s interest.
  • The child lived with her natural parents in Arizona. In September 2007, the parents agreed that the father would relocate with her to New Hampshire. The father and child lived at a homeless shelter in Plymouth from September 26, 2007 through November 30, 2007. DCYF subsequently brought neglect petitions against both parents. The trial court found that the father, but not the mother, had neglected the daughter. DCYF moved for reconsideration asserting for the first time that the ICPC applies. Following a hearing, the trial court granted the motion ruling that pursuant to the ICPC, it could not allow the mother to retrieve her daughter until DCYF had requested and Arizona authorities had completed a home study and reported that allowing the daughter to live with her did not appear to be contrary to the daughter’s interest.

    These issues presented questions of first impression for the Court. The Court held that given the plain language of the ICPC and its legislative history which demonstrate that its draft was intended to limit its reach to foster care/adoption situations, the trial court erred when it ruled that the ICPC applied to its decision to transfer the child to her natural mother. The Court was persuaded that read as a whole the ICPC was intended only to govern placing children in substitute arrangements for parental care, not to apply when a child is returned by the sending state to a natural parent residing in another state. The Court stated that the “most significant and to our minds determinative language is found in Article 3(a).” This provision carefully restricts the reach of ICPC to foster care or dispositions preliminary to adoption and the definition of a “placement” further evidences this intent. Finally, the Court declined to defer to the long-standing interpretation of the ICPC by the Association of Administrators of the Interstate Compact on the Placement of Children (AAICP) since New Hampshire has not adopted it and it was not promulgated pursuant to New Hampshire statute.

    Kelly A. Ayotte, Attorney General (Karen A. Schlitzer, Assistant Attorney General on the memorandum of law and orally), Southern New Hampshire Division for Children, Youth and Families
    Moir & Associates, P.C. of Concord (Jeffrey A. Rabinowitz on the brief and orally), for the mother



    Juvenile

    In Re: James N; 2007-693
    October 8, 2008
    Affirmed


  • Whether the court erred in dismissing a petition for a child in need of services (CHINS)
  • In September 2007 the petitioner filed a CHINS petition involving her then six-year old son James N. Allegedly he was a child in need of services for failing to obey the reasonable commands of his parent, guardian or custodian. See RSA 169-D:2, II (b) (Supp. 2007). At this time James N. was in the custody of the New Hampshire Division for Children Youth and Families (DCYF), and was not living in his mother’s home. At a hearing on the petition, the Court granted the juvenile’s motion to dismiss finding that the petition lacked the required specificity. Subsequently, the petitioner filed four delinquency petitions involving James N., alleging cruelty to animals, simple assault, and reckless conduct. The Court again agreed with the juvenile, finding James N. could not consult with his lawyer or have a rational understanding of the proceedings against him in violation of his due procession rights, and dismissed the petitions.

    As an initial matter, the Court ruled that it was treating this appeal as a petition for writ of certiorari and concluded that it was properly before them.

    The Court held that the plain language of RSA 169-D:5, IV does not allow the inclusion of allegations of a delinquent act in a petition filed under that chapter. The Court quoted the district court’s notation that “it may be that the delinquency and CHINS statutes together do not cover all issues for all children that may need help or services.” The Court stated that this may be such a case, and if the legislature did not intend this result it is free to amend the statutes as it sees fit.

    Paula J. Werme, of Boscawen, by brief for the petitioner
    Kelly A. Ayotte, attorney general (Rosemary Wiant, attorney, on the memorandum of law), for the New Hampshire Division for Children, Youth and Families
    Stephanie Hausman, assistant appellant defender, on the memorandum of law, for the juvenile



    Labor

    Appeal of Dan’s City Auto Body; 2008-111
    October 31, 2008
    Reversed in Part and Affirmed in Part


  • Whether there was sufficient evidence upon which the PAB could have based its decision.
  • The NHDOL conducted an inspection of Dan’s City from February 28, 2007 until March 5, 2007. Two inspectors recorded a total of 994 violations. The report cited four categories of violations. First, Dan’s City was cited for 869 violations of RSA 275-A:4-a (1999) for not keeping on file employees’ proof of citizenship or authorization to work within the United States. Second, the inspectors cited 7 violations of RSA 275:49 (Supp 2007), and New Hampshire Rules, Lab. 803.04 for not notifying employees in writing as to their rate, date and place of pay. Third, the inspectors found 104 violations, one per week, of RSA 279:27 (1999) for failure to keep a true and accurate record of hours worked by employees performing towing on evening and weekends, for alterations of time cards without employee signature, and for difficulty reconciling the time “flat rate” employees worked with wages paid. Fourth, the inspectors cited 14 violations of RSA 275:48 (Supp. 2007) for deductions made from employees’ wages to repay loans or advances without written authorization on file.

    After the inspection, the NHDOL sent Dan’s City a summary of its findings and notification of a fine totaling $100,450. Dan Genest, owner of Dan’s City, disputed the violations and requested a hearing. The hearing officer issued a written decision and order. Based upon the testimony and inspection report, he found that the violations did occur and imposed a $20,000 civil penalty for 994 violations. Dan’s City appealed the hearing officer’s decision to the PAB. At the PAB hearing, the NHDOL representative reiterated portions of the inspection report, but did not call any witnesses. In its decision, the PAB included no findings of fact except its summary of the hearing.

    In regard to the third category of violations under RSA 279:27, the Court held that the PAB’s finding as to the 104 violations was clearly erroneous. The Court stated that the inspector’s report was missing any reference to a specific employee, specific days or specific times when records were not kept. Since evidence of the actual commission of specific violations was insufficient, the State failed to meet its burden of proof. The Court held that there was sufficient evidence in the record to warrant the PAB finding of seven violations of RSA 275:49 and Lab. 803.04 as well as thirteen of the fourteen violations of RSA 275:48. Finally, the Court held that since this was not a case in which the PAB erred only by failing to make specific findings of fact, the proper remedy was dismissal as to 104 violations of RSA 279:27 and on one of fourteen violations of RSA 275:48.

    Walker & Buchholz, PA, of Manchester (Kevin E. Buchholz on the brief and orally), for the petitioner
    Kelly A. Ayotte, Attorney General (Anthony I. Blenkinsop, Senior Assistant Attorney General, on the brief and orally), for the State


    Municipal

    Edward Correia v. Town of Alton; 2008-290
    October 8, 2008
    Reversed and Remanded


  • Whether the trial court erred in applying RSA 43 to the termination of police officers.
  • In 2006, the Alton Town Administrator and Town Council began an investigation regarding alleged misconduct by command police staff. The investigation led to the resignation of the police captain and the discharge of the police chief in accordance with RSA 105:2-a (supp 2007). At the conclusion of the town investigation, the Town Administrator gave Correia the option of resigning or facing possible demotion or termination by the Board of Selectmen (Board). Correia requested a public hearing in accordance with RSA 41:48 (2003) and RSA 91-A (2001 and supp 2007). The Board held a 3-day hearing. Correia moved to disqualify all five Board members because they had just terminated the police chief and had already formed opinions on the matter.

    Two of the Board members recused themselves while the remaining three stated they had not yet formed an opinion. The Chairman of the Board in response to Correia’s attorney requesting the remaining members appoint two alternatives, replied they had tried to find alternatives but could not and would thus proceed with three Selectmen which constituted a quorum under RSA 41-A (2003). At the close of the hearing, the Board found Correia voted 2 to 1 to terminate his employment. The trial court reversed the Board’s decision holding that it failed to appoint two alternates in accordance with RSA 43:7.

    The Court held that RSA 41:48 is not on its face an ambiguous statute “thus, had the legislature intended RSA 43 to apply, it would have explicitly stated such within the text of RSA 41:48 as it did for the removal of other town officials within RSA 41.” The Court looked to the statutory language for the removal procedures of the seven categories of public officers covered by RSA 41 and found that of these seven categories of public officers, the Legislature prescribed RSA 43 removal procedures for only three categories. The Court stated “by referencing RSA Chapter 43 and only some portions of RSA 41, the Legislature clearly intended RSA 43 to apply to some but not all of the officials covered by that chapter.” For those reasons, the Court did not read RSA 41:48 to require a hearing in accordance with RSA 43. The Court also held that for the language of RSA 43:1 to mandate RSA 43 procedures for police officers, it would necessarily need to include all public officials.

    Wattendorf and Nary of Dover (George Wattendorf on the brief and orally), for the petitioner
    Gallagher, Callaghan and Gartrell, P.C. of Concord (Charles P. Bauer on the brief and orally), for the respondent


    Probate

    In re Guardianship of Donald A. Domey; 2007-786
    October 29, 2008
    Reversed


  • Whether the probate court erred in ruling that the petitioners had a fiduciary duty to impoverish the ward in order to qualify him for medicaid so that his assets could be protected for his spouse.
  • Whether the probate court erred in ruling that the petitioners breached a duty to conduct estate planning.
  • On October 23, 2003, Donald Domey suffered a stroke that rendered him totally incapacitated. In February 2004, his brother, George Domey, filed an ex parte petition seeking a guardianship over his person and estate. The petition alleged that Donald’s wife, Judith, had failed to act in Donald’s best interests, had engaged in physically and verbally abusive behavior toward him and had forced him to execute legal documents despite his incapacity. In March, the probate court appointed George Domey and Larrie Bratko, a professional guardian, as co-guardians and also appointed Attorney Jody Wilbert as guardian ad litem for Donald. In May, the co-guardians filed a motion to compel Judith to allow an appraisal of the marital home in Salem and to produce a complete list of all accounts and holdings that were either in Donald’s name or were held jointly by them.

    The guardian ad litem filed a report with the court supporting the motion. Larrie Bratko completed an inventory in December which showed more than $730,000 in total assets. The probate court approved the inventory filing. In January 2005, Greenbriar notified the co-guardians that the overdue bills for services to Donald exceeded $63,000. In September, the probate court approved the parties’ stipulation for estate planning and for spousal support. By October, it became apparent that there were significantly fewer assets in the estate than the parties realized at the time of the stipulation because Donald’s care at Greenbriar had eroded the liquid assets of the estate leaving approximately $75,000. The co-guardians submitted annual accountings to the probate court from the years 2004 to 2007. Judith objected to each of the accountings and requested a hearing. Following a three-day bench trial in June 2007, the court issued an order removing the co-guardians and awarding Judith damages of $84,834 and support arrearages of $33,415.

    The Court held the guardianship statute does not impose a fiduciary duty upon a guardian to impoverish his or her ward in order to qualify the ward for Medicaid so that the ward’s assets can be protected for the spouse nor does it impose a fiduciary duty upon guardians to provide for the ward’s spouse in the absence of findings pursuant to RSA 546-A:2. The Court stated that under the plain language of RSA 462:4, its prime objective is to protect the well being of the ward.

    The Court held that the probate court erred as a matter of law in ruling that the co-guardians breached a duty to conduct estate planning. The Court reasoned that RSA 464-A:26-a established a process whereby the guardian of an estate has the option to petition the probate court for authorization to engage in estate planning, but the statute does not establish any duty on the part of the guardian to do so.

    Nelson, Kinder, Mosseau & Saturley, PC of Manchester (John C. Kissinger, Jr. on the brief and orally), for petitioner Larrie Bratko
    Guardianship Services of New Hampshire
    Hamblett & Kerrigan, PA of Nashua (J. Daniel Marr and Andrew J. Piela on the brief, and Mr. Marr orally) for petitioner George Domey
    Kalil & LaCount of Rye (Earl L. Kalil, Jr. on the brief and orally) for the respondent



    In the matter of John Salesky and Jacqueline Salesky;
    October 8, 2008
    Affirmed


  • Whether the trial court erred when it ruled that the co-guardians had the authority to maintain the divorce action on the petitioner’s behalf.
  • Whether the trial court erred in finding that the probate court had the authority to confer this power upon the co-guardians.
  • Whether the trial court violated the respondent’s constitutionally protected liberty interests by granting the petitioner’s petition for a divorce.
  • Whether the trial court erred when it granted the petitioner’s motion in limine to exclude evidence that the co-guardians had exercised undue influence over him.
  • Whether there was sufficient evidence in the record to support the trial court’s finding that the petitioner had the mental capacity to initiate the divorce.
  • Whether there was sufficient evidence to support the trial court’s finding that irreconcilable differences caused the irremediable breakdown of the parties’ marriage.
  • Whether the trial court’s property distribution was sustainable.
  • The parties married in 1983. In the spring of 2003, the respondent voluntarily left her employment because she was planning to separate from her husband and move to Florida to be near her daughter. On August 31, 2003, the petitioner suffered a stroke which resulted in some loss of speech and memory. In December 2003, the petitioner named the respondent as co-trustee and co-beneficiary of his trust and executed separate durable powers of attorney for health care, property and financial matters which named the respondent as his agent. In preparation for this estate planning, the petitioner was examined by Dr. Phat Nguyen who opined that he was “competent to make his own decisions in all regards.”

    Following the petitioner’s stroke, the respondent distributed significant cash assets. In early October 2004, the petitioner left the respondent to live with his brother and sister-in-law, Edward and Carol Salesky (the Saleskys). On October 18, 2004, the petitioner filed an ex parte petition seeking a divorce on the grounds that irreconcilable differences had caused the irremediable breakdown of the parties’ marriage. The respondent objected seeking to dismiss the petition on the ground that the petitioner was not mentally competent to bring it. In April 2005, the psychiatrist recommended, among other things, that the petitioner “received assistance for making major decisions regarding his life situation, medical and legal or fiscal issues in order to protect his interests.” The Saleskys filed a petition for guardianship which the probate court granted on August 11, 2005. The probate court appointed them as co-guardians over the petitioner’s person and estate. On October 12, 2005, the superior court denied the respondent’s motion to dismiss the petitioner’s divorce petition on the ground that it was moot. In November 2005, the probate court denied the respondent’s motion to remove the co-guardian but agreed to appoint a guardian ad litem (GAL) to investigate their relationship with the petitioner.

    In a report filed on January 2, 2006, the GAL reported that the co-guardians were acting in what they perceived to be the petitioner’s best interests, that the petitioner was comfortable with their care and that there was nothing “unusual” in the relationship between the petitioner and the co-guardians. Following its receipt of the report, the probate court denied the respondent’s motion for partial reconsideration of its November 2005 order finding in part that her assertion that the co-guardians had exercised undue influence over the petitioner “lacks credible foundation.” The probate court denied the respondent’s later motion to reconsider this order and for a hearing on undue influence which the respondent then appealed to the Supreme Court. While the respondent’s appeal of the probate court’s order was pending, the divorce action was stayed. In a November 2006 order, the Supreme Court lifted the stay of the divorce action and affirmed the probate court.

    In June 2007, the parties’ divorce action was heard over three days. On the first day of the hearing, the court granted the petitioner’s motion in limine to exclude evidence that the co-guardians had exercised undue influence over him. The trial court granted the petition for divorce ruling that the co-guardians had the authority to maintain the divorce action on the petitioner’s behalf and that irreconcilable differences between the parties had caused the irremediable breakdown of their marriage. The respondent moved for reconsideration which the trial court denied.

    The Court held that the probate court expressly conferred upon the co-guardians the authority to maintain the divorce action on the petitioner’s behalf based upon the probate court’s finding that the petitioner was incapable of exercising his right to marry or divorce and to initiate, defend or settle lawsuits and based on the express language of the probate court’s order. In its final decree, the probate court expressly granted the co-guardians the authority to exercise the petitioner’s right when it stated “so far as necessary for, and complementary of, exercise and fulfillment of the co-guardians over the ward’s person, powers and authorities conferred, and the duties and obligations imposed upon them, the ward is found incapable of exercising the [following] right[s].” The Court stated that this paragraph directly linked the right to remove from the petitioner the “powers and authorities conferred” and “duties and obligations” imposed upon the co-guardians.

    The Court held that as a public policy matter, the Legislature reasonably could have vested discretion with the probate court to decide whether it was in the ward’s best interests for the guardian to pursue a divorce on the ward’s behalf. In reaching this conclusion, the Court looked at the language of RSA 464-A:25 (2004) that sets forth the general powers and duties of a guardian over the person and RSA 464-A:26 (2004) that sets forth the general powers and duties of a guardian over the estate. The Court found that both statutes include a catch all provision which states in pertinent part “the court may limit the powers of the guardian…or impose additional duties if it deems such action desirable for the best interests of the ward.” Therefore, the duties that a probate court may impose upon a guardian are not limited to those specifically enumerated in RSA 464-A:25 and RSA 464-A:26.

    The Court rejected the respondent’s assertion that the trial court violated her constitutionally protected liberty interests by granting the petitioner’s petition for divorce, noting that the respondent had not cited any authority for that proposition.

    The Court held that the trial court did not err in ruling to exclude evidence that the co-guardians had exercised undue influence over the petitioner since that issue had already been litigated in the probate court and the probate court’s decision on this issue had collateral estoppel and/or res judicata effect.

    The Court upheld the trial court’s finding that the petitioner had the mental capacity to initiate the divorce. The Court noted that while the evidence was conflicting on the issue, it was for the trial court as finder of fact to resolve the conflict.

    The Court upheld the trial court’s finding that irreconcilable differences caused the irremediable breakdown of the parties’ marriage. The Court held that the “trial judge was in the best position to evaluate the evidence, measure his persuasiveness and assess the credibility of witnesses.”

    The Court upheld the trial court’s property distribution. The Court looked to RSA 458:16-a, II that “creates a presumption that equal distribution of marital property is equitable.” “The statute enumerates various factors for the court to consider such as the length of the marriage, the ability of the parties to provide for their own needs, the needs of the custodial parent, the contribution of each party during the marriage and the value of the property contributed by each party.” The Court held that there was sufficient evidence in the record to support the trial court’s finding that the petitioner had the mental capacity to initiate the divorce.


    Real Estate

    Dale Robinson v. New Hampshire Real Estate Commission; 2008-027
    October 10, 2008
    Reversed


  • Whether the New Hampshire Real Estate Commission (Commission) had subject matter jurisdiction to hold a hearing on a complaint alleging that the petitioner engaged in misconduct when selling his own property.
  • The petitioner became a licensed real estate sales person in 1963 and a licensed real estate broker in 1965. Since 1989 when the Commission suspended his licenses and they were revoked, the petitioner had neither a real estate broker nor a sales person license. In 2005 the petitioner placed “For Sale” signs on property he owned in Pembroke and at nearby locations. The signs included the name “Homestead Realty,” a telephone number and a “R” emblem indicating that Homestead Realty is a member of the National Association of Realtors. Upon seeing the signs, Carlos and Katherine Moreira telephoned the petitioner to ask about buying the property and whether he was the realtor for the property, to which he said “yes.” The petitioner allegedly provided the Moreiras with a business card that identified him as a broker at Homestead Realty. The Moreiras and the petitioner entered into a Purchase and Sale Agreement, and the Moreiras gave him a deposit. Following a dispute regarding the contract’s terms, the Moreiras filed a complaint with the Commission in which they alleged the petitioner had violated the New Hampshire Real Estate Practices Act (the Act). The Commission concluded that the petitioner had violated the Act. The Superior Court upheld the Commission’s decision.

    The Court held that the plain meaning of RSA 331-A:4, I, is that a property owner with respect to property owned by him is exempt from the provisions of the Act, even when a property owner holds himself out to be a real estate broker. Similarly, the Court held that RSA 331-A:28, I does not apply when a property owner is selling his own property. Any other construction would render RSA 331-A:4, I superfluous since the two statues must be construed so that they do not contradict each other. The Court noted that the chapter as a whole contained several internally inconsistent and confusing provisions; thus, the legislature may wish to revisit it to make it clearer.

    D’Amante Couser Steiner Pellerin, P.A., of Concord (R. James Steiner and Gayle M. Braley on the brief), for the petitioner
    Dale Robinson, orally, pro se
    Kelly A. Ayotte, attorney general (Suzanne M. Gorman, senior assistant attorney general, on the brief and orally), for the respondent



    Tax Exemption

    Appeal of Town of Rindge; 2008-089
    October 31, 2008
    Affirmed


    Franklin Pierce University is a private 4-year educational institution. Its main campus is located on the shores of Pearly Lake near the base of Mount Monadnock in Rindge. The Town lacks public water and sewer systems and is unlikely to develop them in the foreseeable future. In 1985, the University constructed its own waste water treatment facility (facility) to meet the needs of the campus community, investing $1,800,000. Since that time, the University has operated and maintained the facility at its own expense. In July 2006, the University applied to DES for pollution control tax exemption under RSA 72:12-a for the facility including associated real property, equipment and proposed upgrades. DES conducted an investigation, which included a review of the University’s written submissions, a meeting with its representatives, a visit to the facility, and meetings with town officials, and considered Rindge’s written and oral objections to the University’s request for exemption. Following its investigation, DES ruled that the full assessed value of the facility, including the proposed improvements as constructed, qualifies for a tax exemption under RSA 72:12-a.

    The Court held that DES did not misinterpret RSA 72:12-a. In interpreting the statutory language, the Court held that it was both reasonable and lawful for DES to conclude that the University qualified for the exemption because the statute expressly provides that any person, firm or corporation is entitled to an exemption. The Court also held that DES reasonably found that the University’s waste water facility fell within the scope of the statute when it found that the University’s waste water facility consisted of several physical unit operations, including biological and chemical unit processes used to manage wastewater. The Court held that the term “pollution” is to be construed broadly in the context of RSA 72:12-a including wastewater from the college campus. Finally, the Court held that the tax exemption granted to the University for its wastewater treatment facility did not violate Part 2, Article 5 and Part 1, Article 10 of the New Hampshire Constitution. The Court stated “DES’ decision is supported by just reasons which is a proper object of public welfare and public interest and does not create an unconstitutional equal benefit.” In particular, a potentially cleaner environment resulted and Rindge residents were not burdened with potentially higher taxes if it had to build and operate its own wastewater treatment facility.

    Bradley & Faulkner, PC, of Keene (Beth A. Fernald on the brief and orally), for the petitioner
    Gallagher, Callahan & Gartrell, PA, of Concord (Donald E. Gartrell on the brief and orally), for the respondent



    Zoning

    Cardinal Development Corporation v. Town of Winchester Zoning Board of Adjustment; 2007-849
    October 8, 2008
    Affirmed


  • Whether the court erred in holding that Cardinal Development Corporation’s appeal was dismissed for lack of jurisdiction due to the untimely filing of the motion for reconsideration regarding RSA 677:2, 3.
  • On November 28, 2006, Cardinal applied to the ZBA for a special exception to excavate loam, sand, gravel and stone. The ZBA held a hearing and denied the application on January 4, 2007. Cardinal then had 30 days beginning the following day to move for a rehearing before the ZBA pursuant to RSA 677:2, :3 (2008).

    On February 5, 2007 Cardinal’s counsel called the ZBA’s Land Use Assistant at her home around 5:10 p.m. to discuss filing a motion for rehearing. There was some dispute about what was said, but both parties agreed that the ZBA’s Land Use Assistant provided counsel with the ZBA’s facsimile number. Cardinal maintained that the ZBA’s Land Use Assistant advised its counsel that she would be at the town hall later that evening and would retrieve its faxed motion. The assistant, however, lacked any access to the fax machine after business hours. Cardinal then sent by fax a motion for rehearing at 5:50 p.m.

    On March 1, 2007, the ZBA considered the motion finding that it was untimely and, in addition, rejecting it on the merits. Cardinal appealed the ZBA’s decision to the superior court. The superior court concluded that it lacked jurisdiction because Cardinal had failed to timely move for reconsideration in accordance with RSA 677:22. Cardinal moved to reconsider. The superior court denied this motion specifically rejecting the notion that by providing a fax number the ZBA was estopped from asserting the motion on timeliness. The parties did not dispute that Cardinal had until February 5, 2007 to file its motion for rehearing. The Court held that Cardinal’s motion for rehearing was not received by ZBA officials until the following day, February 6, 2007, and, thus, was not “filed” within the 30-day period of RSA 677:2. The Court stated that “although the statute does not specifically state that the window for applying for rehearing closes when the ZBA closes for business on the 30th day, such a requirement is a matter of common sense absent any ZBA procedural law allowing after hours filing.” In addition, the Court stated that “our cases hold in other contexts that the completed act of ‘filing’ includes physical receipt of the document by the relevant authority before the close of business.” The Court also noted that its holding does not prevent zoning boards of adjustment from adopting rules permitting after hours filing.

    The Court also held that there was no evidence that the assistant had the authority to either accept a filing on behalf of the ZBA after the close of business on February 5, 2007 or to waive the 30-day period in RSA 677 for moving for rehearing. The Court stated “even assuming that the assistant assured Cardinal’s counsel that the post 5 p.m. fax would be retrieved later in the evening, a municipal agent’s unauthorized conduct cannot estop the municipality and Cardinal’s counsel could not reasonably rely upon the assistant’s assurance.

    Lane & Bentley, P.C. of Keene (Michael P. Bentley on the brief and orally), for the appellant
    Upton & Hatfield, LLP of Concord (Barton L. Mayer on the brief and orally), for the appellee



    Greg Taylor and Gail Taylor, Trustees of Shady Acres Realty Trust v. Town of Wakefield, Town of Wakefield Board of Selectmen v. Town of Wakefield Zoning Board of Adjustment; 2008-223
    October 31, 2008
    Reversed


  • Whether the trial court erred in not ruling that a ZBA member should have been disqualified from the hearing.
  • Whether the trial court erred in ruling that the evidence supported findings that the four statutory requirements from the waiver were met.
  • Linwood and Sylvia Gagnon conveyed three separate tracts of land to intervenors, James F. Doyle and Charles K. McLaughlin, including lots 77-86 (the non-shorefront lots) and Lots 77-64 (the shorefront lots). Doyle and McLaughlin conveyed by warranty deed the shorefront lots to Lawrence Gaff. In the deed, Doyle and McLaughlin created an easement over the shorefront lots in favor of the non-shorefront lots “to provide vehicular and pedestrian ingress, egress and access to the shore of Pine River Pond…” Doyle and McLaughlin later conveyed a non-shorefront lot which included the easement to the Harringtons by warranty deed. In 2002, the Harringtons received a building permit to construct a home which was completed, inspected and approved. The Town of Wakefield Board of Selectmen subsequently notified Doyle and McLaughlin that the easement violated the town zoning ordinance that required the easement to have a minimum of 100 feet of shore frontage. Gaff later conveyed the shorefront lot, including the easement, by warranty deed to the Taylors. In 2006, the Harringtons applied to the ZBA for an equitable waiver of the dimensional requirements. RSA 674:33-a (2008). At the end of the meeting, the ZBA voted on each of the four criteria and RSA 674:33-a, I granted the equitable waiver by a 3-2 vote. The superior court affirmed the ZBA’s decision to grant the waiver.

    The Court upheld the trial court’s finding that the ZBA member should not have been disqualified merely because she was McLaughlin’s former employee and upheld the trial court’s finding that the ZBA member was not required to recuse herself.

    The Court held that the trial court erred in finding that the evidence supporting the ZBA’s finding that the requirements of RSA 674:33-a, I(b) were met. The question before the court was whether the violation was caused by an error in calculation by the owner or owner’s agent. The Court interpreted the term “error in calculation” not to include an honest misinterpretation of zoning ordinances. The Court also considered the evidence that private parties created the nonconforming easement and that there was no evidence that the owner or owner’s agent created the easement as a result of an error in measurement or calculations.

    Wholey & Pelech Law Office, of Portsmouth (Bernard W. Pelech on the joint brief and orally), for Greg and Gail Taylor
    Sager Law, PLLC, of Ossipee (Richard D. Sager on the joint brief and orally), for the Town of Wakefield Board of Selectmen
    Walker & Varney, PC, of Wolfeboro (Thomas R. Walker on the brief and orally), for intervenors Peter A. Harrington and Amy M. Harrington
    McNeil, Taylor and Gallo, PA, of Dover (William L. Tanguay on the brief and orally), for intervenors James F. Doyle and Charles K. McLaughlin.



    Beth Deragon is an associate with the law firm of Upton & Hatfield in Concord, where she practices employment and immigration law. She is a graduate of Franklin Pierce Law School and joined the NH Bar in 2005.

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