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Bar News - March 13, 2009


NH Supreme Court At-a-Glance February 2009 – Part I

By:

NH Supreme Court At-a-Glance February 2009 - Part 2

In Re Kotey M
February 18, 2009
(No. 2008-705)
Remanded

· Whether a juvenile in a (Child in Need of Services) CHINS proceeding has a due process right to counsel under either the New Hampshire or Federal Constitution.

An 11-year-old juvenile was the subject of a petition alleging he was a CHINS due to acts he purportedly committed in the last 2 years. The juvenile was placed at Pinehaven School by agreement of the parties. The court appointed an attorney and guardian ad litem to represent the juvenile and scheduled the matter for hearing. The juvenile’s attorney requested a competency evaluation to determine whether the juvenile was competent to have committed the alleged acts and whether he had sufficient ability to consult with his lawyer with a reasonable degree of understanding and a rational and factual understanding of the proceedings against him. The evaluation concluded that the juvenile was competent to have committed the alleged acts, but was not competent to stand trial.

The court rejected the juvenile’s argument that "the right to counsel would be illusory if the child [was not competent] to participate in his defense or communicate with counsel," stating there was no precedent that such right was constitutionally mandated. Further, the court wrote that a juvenile judged incompetent would have a guardian
ad litem
appointed to him and the guardian ad litem would act as both a substitute decision-maker for the juvenile and as a substitute client for the lawyer.

Samdperil & Welsh, PLLC, of Exeter (Anna L. Elbroch and Richard E. Samdperil on the brief, and Ms. Elbroch orally), for the juvenile.

Kelly A. Ayotte, attorney general (Suzanne M. Gorman, senior assistant attorney general, on the brief and orally), for the New Hampshire Department of Health and Human Services.


James Kerouc v. DMV
February 18, 2009
(No. 2008-434)
Affirmed

· Whether the department of safety has proper jurisdiction in a case where the arresting officer's sworn report does not contain the arresting officer's signature.

The plaintiff was arrested for driving while intoxicated. The arresting officer asked the plaintiff to submit to a breathalyzer and blood alcohol tests, gave the plaintiff an administrative license suspension form, and explained to him that his refusal would result in the suspension of his license. The plaintiff read the form but made no decision about submitting to testing. After 30 minutes, the arresting officer deemed the plaintiff to have refused testing, checked the appropriate box on the form and signed it. In the section of the form marked "Officer's Report", the arresting officer listed his name as the officer who swore that he requested the plaintiff to submit to testing and had checked the box on the form indicating the plaintiff had refused testing. The arresting officer did not sign the form at the time, but appeared before a justice of the peace the same day and swore to the statements on the form. The plaintiff's license was suspended because he was deemed to have refused testing. When the plaintiff appealed the decision arguing that the department of safety did not have jurisdiction because the arresting officer did not sign the form, the suspension was upheld.

The court rejected the plaintiff's argument that the department of safety did not have jurisdiction over the appeal because the arresting officer did not sign the "Officer's Report" section of the form. The court found that RSA 265-A:30 requires that reports be "sworn." The plain meaning of the phrase "sworn report" is a report to which an officer swears. It does not require a signature. Further, the officer had signed another portion of the form. With this signature, the justice of the peace to whom he appeared and swore to the statements on the form was able to identify the arresting officer as the same officer who had signed the form earlier, thus the meeting the requirements of the state adopted Uniform Law on Notorial Acts.

The court also rejected the plaintiff's argument that the department of safety did not have jurisdiction over the appeal due to the failure of the hearings officer to issue his report with 15 days of the incident. While the RSA 265-A:31 provides that "[T]he hearing examiner shall issue his or her recommendation on the order of suspension or revocation within 15 days of the request for administrative review or the hearing date," the statue is silent as to the enforcement of this mandate. The court held that "the hearings officer’s failure by one day to issue his decision within the time limit enacted by the legislature did not deprive the department of jurisdiction over the plaintiff's appeal."


Richard C. Mooney, of Concord, by brief, for the plaintiff.

Kelly A. Ayotte, attorney general (Nancy J. Smith, senior assistant attorney general, on the memorandum of law), for the defendant.



State of New Hampshire v. Mohamed Daoud
(No. 2008-207)
February 18, 2009
Conviction Affirmed

· Whether concealment of evidence constitutes the removal of evidence.


Defendant was involved in a car crash. When police arrived, defendant was seated on a curb nearby. Defendant stated that he had not been driving, but gave two differing accounts of who had driven the vehicle. An officer arrested the defendant for operating after certification as a habitual offender and for disobeying a police officer by giving a false date of birth. The arresting officer searched the vehicle of the key but could not find it. The key was discovered in the defendant's left shoe when he was booked. Defendant was convicted of operating after certification as a habitual offender, disobeying a police officer, and falsifying physical evidence for removing the vehicle's key. Defendant argues that the trial court erred in not dismissing the falsifying evidence charge due to insufficient evidence.

The court rejected the defendant's argument that "the act of moving the key from the ignition of the car to his shoe [was] not a 'removal' under the law." While the court agreed that the terms used in RSA 641:6, "alters, destroys, conceals or removes," may be redundant under standard rules of statutory construction, the court also found that the terms "need not be mutually exclusive" rendering the terms "conceals" and "removes" independent significance.


Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the memorandum of law and orally), for the State.

Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.


Jean Flaherty v. David E. Dixey
February 19, 2009
(No. 2008-551)
Vacated and Remanded

· Whether the trial court erred in applying the equitable doctrine of laches sua sponte and without a hearing.

· Whether a plaintiff may amend a proposed decree pro confesso without notice to the defendant.

In the 1980s, the plaintiff and defendant purchased adjoining lots of land as joint tenants with rights of survivorship. The defendant moved onto one of the lots of land and took up residence there. In 1992, the plaintiff brought a petition in superior court seeking partition of the real estate, requesting that Lot 2 be awarded to the defendant and Lot 1 awarded to her. While the defendant was aware of the petition, he did not appear and took no action relative to the petition. Six months later, the defendant was judged to be in default, and the plaintiff was informed that judgment would be entered in her favor upon the filing of a motion for entry of judgment pro confesso. Another six months later, the plaintiff did not file a motion but did file a proposed decree pro confesso awarding both lots to herself. The trial court signed the decree without amendment. The defendant did not receive a copy of the decree and the plaintiff did not record the deed in the registry of deeds. In 2007, the defendant filed a motion seeking to vacate the 1993 default and decree and to grant a new trial, arguing that he was unaware of the decree until May of 2007. The plaintiff did not file timely appearance and was judged to be in default. The trial court then issued an order in which it, sua sponte, applied the equitable doctrine of laches and concluded that it barred the defendant’s attempt to reopen the case.

The court affirmed the defendant’s argument that the trial court erred when it applied the doctrine of latches
sua sponte
without a hearing. The doctrine of laches is not a mere question of how much time has passed, but rather is a question of the inequity of allowing the claim to be enforced. The court considers, among other things, "the knowledge of the plaintiffs, the conduct of the defendants, the interests to be vindicated, and the resulting prejudice." In this case, while the defendant was aware of the petition, he was not aware of its rule, especially with regards to the termination of his rights in Lot 2. Because the deed was never recorded, his periodic review of the registry of deeds never demonstrated that his rights in Lot 2 had been extinguished, and enforcement of the order would result in prejudice to the defendant.

The court rejected the plaintiff’s arguments that the vacating of the trial court’s decree would result in prejudice to the plaintiff. There was no evidence that she ever treated Lot 2 as her own, either by developing it, residing on it, or collecting rent from the defendant who resided there, thus there would be no inequity in allowing the defendant the opportunity to prove his right to Lot 2 ought not to have been terminated in 1993.

Lastly, the court found that the decree filed pro confesso against the defendant ought ot be vacated. Superior Court Rule 24 prohibits a plaintiff from leaving to amend after a default without giving notice to the defendant. Since the amended partition extinguished the defendant’s rights in Lot 2, the amendment was not a matter of form and the defendant was entitled to notice. In the absence of such notice, the 1993 may not stand. However, the defendant was on notice of the default order, therefore the default order against the defendant stands.

Law Office of Thomas Morgan, PC, of Salem (Thomas Morgan on the brief and orally), for the plaintiff.

Wensley & Jones, P.L.L.C., of Rochester (Franklin C. Jones on the brief and orally), for the defendant.


David B. Mastroianni v. Joseph Wercinski
February 19, 2009
(No. 2008-342)
Reversed and Remanded

· Whether the trial court committed a reversible error by treating as dispositive the parties' subjective beliefs about the location of the property line.

The Wercinskis acquired a lot of property abutting the Mastroiannis lot of property in 2005. The Mastrionnis had bought the property in 1998. The previous owners of the Wercinskis’ property acquired the property in 1979 ad the previous owners of the Mastrionnis’ property acquired the property in 1975. Both the parties and the previous owners believed that a preexisting stone wall marked the boundary between the two properties. However, the actual boundary was east of the stone wall. Both the Mastrioiannis and the previous owners had mowed grass, planted flowers and otherwise treated the property east of the wall as their own. Upon discovering the location of the actual boundary in 2006, the Wercinskis relocated the stonewall to the actual boundary and removed the flowerbeds. The Mastrioiannis petitioned to quit title, asserting title by adverse possession. The trial court ruled that the Mastrioiannis had failed to demonstrate notorious possession as both the Mastrioiannis and the Wercinskis "operate[d] under the mistaken belief as to where the property line [was] located."

The court held the trial court erred when as a matter of law; it ruled that the parties' mistaken belief about the location of the property boundary precluded the requisite adversity to acquire title by adverse possession. The element of adversity is normally a question of fact. The court has previously recognized that the mistaken belief of parties regarding a property boundary "matters not, that the possessor was mistaken, and had he been better informed, would not have entered on the land." As the trial court's ruling on the element of adversity was based on an error of law. The court applied the same rationale when holding the trial court erred when ruling that the mistaken belief of the parties regarding the property line failed to demonstrate notorious possession.

The court also rejected the argument by the Wercinskis that the occasional mowing of the lawn and planting of flowers was insufficient to establish the element of notoriety.

Hamblett & Kerrigan, PA, of Nashua (J. Daniel Marr and Andrew J. Piela the brief, and Mr. Marr orally), for the petitioners. Daniel J. Kalinski, of Manchester, on the brief and orally, for the


Kirsten Werne v. Executive Women’s Golf Association
February 19, 2009
(No. 2008-235)
Affirmed

· Whether the trial court failed to apply the common law duties that are owed by land owners to members of the public.

· Whether the defense of primary implied assumption of the risk is applicable to tort claims against owners and occupiers of the land.

· Whether the trial court erred in granting the defendants' motions for summary judgment because their conduct unreasonably increased the risks inherent in playing glow golf.

· Whether the trial court failed to apply the proper standard in ruling upon the defendants' motions for summary judgment.

Werner was struck by an errant golf ball while participating in an evening of glow golf at Alpine Ridge. Glow golf consists of playing golf at night while assisted by glowing balls, necklaces, tiki torches, and other devices used to illuminate the course and participants. In the course of the evening, Armfield, a member of Werne's foursome, made a shot which hit Werne in the head, causing her to suffer a concussion and permanent brain damage. Werne brought a claim for negligence against Armfield, the Executive Women's Golf Association, the Executive Women's Golf Association of Southern New Hampshire, and Alpine Ridge Golf, LLC.

The court rejected Werne's argument that the trial court failed to apply the common law duties that are owed by land owners to members of the public. The court had previously held in Allen v Dover Co-Recreational Softball League that the "duty owed by the owner of a softball field was to create only the risks that are normal or ordinary to the sport or that would be created by a reasonable person of ordinary prudence under the circumstances." This was not a departure from the common law duties owed by land owner to members of the public, but instead a clarification with regards to the duties owners of sports facilities owed to members of the public. Applying the holding of Allen to the facts of the case, the court held that the trial court did not err in identifying the common law duties land owners owe to members of the public.

The court also rejected Werne's argument that the assumption of risk doctrine did not apply to tort claims against owners and occupiers of land. The court quoted the definition of assumption of risk from Allen, stating "Implied assumption of risk applies when a plaintiff voluntarily and reasonably enters into some relation with a defendant which the plaintiff reasonably knows involves certain obvious risks such that a defendant has no duty to protect the plaintiff against injuries that may be caused by those risks." Werne did not argue for the overturn of Allen and the court concluded Werne had not demonstrated that the defense of implied assumption of risk was unavailable to the defendants.

The court also rejected Werne’s argument that the trial court erred in applying a differing standard of care to glow golf as opposed to golf generally. In determining the standard of care, the court considers the nature of the sport, the type of contest, the ages, physical conditions and skills of the participants, the type of equipment used, and the rules and customs of the sport. Glow golf is played after dark and has distinct equipment from golf generally. The court found no issue with the trial court’s consideration of the standard of care applied to glow golf as opposed to golf generally.

The court lastly rejected Werne’s argument that the trial court failed to apply the proper standard in ruling upon the defendant’s motions for summary judgment. While Werne argues that the trial court made "findings of fact unsupported by the evidence, and failed to draw all reasonable references in her favor, the court found there was no evidence in the record to support such a conclusion.

William Aivalikles, of Nashua, by brief and orally, for the plaintiff.

Morrison Mahoney LLP, of Manchester (Ralph Suozzo on the brief, and William J. Flanagan orally), for defendant Executive Women’s Golf Association.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Christopher J. Poulin on the brief and orally), for defendant Executive Women’s Golf Association of Southern New Hampshire.

Downs Rachlin Martin PLLC, of Littleton (Kate Strickland on the brief and orally), for defendant Alpine Ridge Golf, LLC d/b/a Alpine Ridge Golf Club.

Desmarais, Ewing & Johnston, PLLC, of Manchester (Fred J. Desmarais and Emily M. Doherty on the brief, and Mr. Desmarais orally), for defendant Deb Armfield.


In the Matter of the Liquidation of the Home Insurance Company
February 20, 2009
(No. 2008-440)
Affirmed

· Whether pre-liquidation legal services expended in protecting Home's financial interests constitute costs of "administration" s that term is used within RSA 402-C:44,I.

Sheiness, Scott, Grossman & Cohn, L.L.P (SSGC) rendered legal services between October 2002 and January 2003 to The Home Insurance Company (Home) regarding asbestos-related litigation. Home became insolvent and entered receivership. The superior court ordered Home liquidated in 2003 and appointed the commissioner of insurance as the liquidator of its estate. SSGC filed a claim for $74,784.89 for the legal services it rendered to Home before Home was liquidated. The liquidator allowed the claim and designated it as Class V residual property. However, it soon became clear that there were insufficient assets to make payments to any classes beyond Class II. SSGC appealed the Class V designation, arguing that its claim should have been declared a Class I administrative cost. A court appointed referee affirmed the classification. SSGC moved to recommit. The trial court denied the motion and sustained the referee’s finding.

The court affirmed the referee's finding, holding that "administration" does not include attorneys' fees for legal services rendered pre-liquidation. While the definition of administrative costs listed in RSA 402-C:44,I contains the phrase "reasonable legal fees," the court has held previously that attorneys’ fees and professional services rendered before liquidation is initiated do not have priority. There is no principled way to distinguish between fees for legal services rendered pre-liquidation and other fees for other professional services that generally fall in the residual classification of RSA 402-C:44,V. Lastly, reasonable attorneys fees as defined in RSA 402-C:44,I is limited to those fees that constitute the cost and expenses of the administration of the liquidation.

Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (William C. Saturley on the brief and orally) and Sheiness, Scott, Grossman & Cohn, L.L.P., of Houston, Texas (H. Miles Cohn on the brief), for the appellant.

Kelly A. Ayotte, attorney general (J. Christopher Marshall, attorney, on the memorandum of law and orally), and Rackemann, Sawyer & Brewster P.C., of Boston, Massachusetts (J. David Leslie and Eric A. Smith on the memorandum of law), for the respondent, the Commissioner of Insurance of the State of New Hampshire as Liquidator of the Home Insurance Company.


Appeal of Brian D. Gagnon
February 20, 2009
(No. 2008-424)
Affirmed

· Whether "gross earnings" is the same as earning capacity, and therefore includes payments to union funds.

Petitioners sustained injuries while working. The benefits paid to the petitioners were based upon an average weekly wage. Both petitioners were denied a request to include an additional $14.80 per hour, which represented their hourly union benefits paid by the employer into various union pension, annuity, and health and welfare funds. Petitioners argue that their average weekly wages should "include payments ‘of funds which provide a direct financial benefit,’" i.e. annuity, local pension, and national pension funds."

The court rejected the petitioners argument that the compensation appeals board (CAB) erred by basing their average weekly wages upon pre-tax wages as opposed to the petitioners individual earning capacity. RSA 281-A:15 computes the worker's weekly wage by dividing the workers' ""gross earnings" over a period of 26-52 weeks ... by that number of weeks." The term "gross earnings" does not mean the same thing as wages or other benefits, but instead is the claimant's "net profit" or pre-tax hourly wage. Both the statute and the collective bargaining agreement the petitioners worked under differentiate between wages and benefits, with benefits including those funds paid by the employer to the union's various funds. Therefore the trial court did not err in calculating the petitioners' weekly wages upon pre-tax wages.

The court also rejected the petitioners argument that the CAB erred by finding that contributions to union funds are not a "similar advantage" under RSA 281-A:2,XV and therefore do not constitute wages.

Stewart & Murphy, P.A., of Manchester (Edward W. Stewart, Jr. on the brief), for the petitioner.

Law Offices of John B. Schulte, of Manchester (John B. Schulte on the brief), for the respondent.

NH Supreme Court At-a-Glance February 2009 - Part 2

 

Courtney Eschbach is a bill drafter in the Office of Legislative Services at the New Hampshire General Court. She is a graduate of the University of Notre Dame Law School and is admitted in New Hampshire and Illinois.
 

 

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