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Bar News - September 18, 2009

NH Supreme Court At-a-Glance - August 2009


Administrative Law Ė Appeals from NH Public Utilities Commission

Appeal of Stonyfield Farm, Inc. & a.
August 5, 2009
Appeal Dismissed

  • Whether ratepayers had standing to request a rehearing where there had yet to be any change in the electric rates
Petitioners appealed a decision of the NH Public Utilities Commission (PUC) that it lacked authority to determine whether installing certain technology was is in the public interest. In 2006, legislation was enacted that requires PSNH to install the best known commercially available technology (scrubber technology). The legislation provides that PSNH will recover all prudent costs of installing the technology in a "manner approved by the PUC", but via PSNHís default service charges.

Because there was a potential conflict between the legislatureís express finding that installing scrubber technology was in the public interest and a statute providing that PSNH may modify is fossil and hydro generation assets only if the PUC finds that it is in the public interest to do so, the PUC ordered PSNH to file legal memorandum about the extent of PUCís authority with respect to the scrubber project. The PUC decided that the legislatureís mandate to install scrubber technology caused the PUC to lack authority to make a determination as to whether the scrubber modification was in the public interest. Following this order, the petitioners then moved for a rehearing, asserting standing as commercial ratepayers. PUC ruled the petitioners did have standing but denied the motion.

PSNH argued that the appeal should be dismissed as the petitioners lacked standing because any future increase of electrical costs was neither immediate nor direct. The petitioners argued they had standing because ratepayers would be directly affected by increased costs and the PUCís order. To have standing to appeal an administrative agency decision, a party must demonstrate that his rights may be directly affected by the decision. The Court found, however, that as this appeal concerned the PUCís interpretation of statutes that are unrelated to the rate plan, any potential injury the petitioners may suffer would arise only in a subsequent rate setting proceeding. The Court held such future harm to be insufficient to confer standing upon the petitioners to appeal the PUCís decision.

Sheehan Phinney Bass & Green, P.A. of Manchester (Edward A. Haffer on the brief and orally), for the petitioners. McLane, Graf, Raulerson & Middleton, P.A. of Manchester (Wilbur A. Glahn, III & a. on the brief, Mr. Glahn orally) and Robert A. Bersak and Linda T. Landis, of Manchester, on the brief, for the respondent. Kelly A. Ayotte, attorney general (K. Allen Brooks, senior assistant attorney general, on the brief and orally), for the State. Meredith A. Hatfield, consumer advocate, on the brief, for the Office of Consumer Advocate, as amicus curiae. Backus, Myer and Solomon, of Manchester (Robert A. Backus on the joint brief) for Campaign of Ratepayerís Rights, as amicus curiae. Arthur B. Cunningham, of Hopkinton, on the joint brief, for Clean Water Action, New Hampshire Sierra Club and Union of Concerned Scientists, as amici curiae. Melissa A. Hoffer and Kristine E. Kraushaar, of Concord, on the joint brief, for Conservation Law Foundation, as amicus curiae. Wadleigh, Starr & Peters, PLLC, of Manchester (Ronald J. Lajoie on the joint brief) for Residentís Environmental Action Committee for Health, as amicus curiae. Orr & Reno, PA of Concord (Douglas L. Patch on the brief), for TransCanada Hydro Northeast, Inc., as amicus curiae.

Criminal Law

State v. Antoine Bell-Rogers
August 4, 2009

  • Whether an in-court and out-of-court identification of the defendant based upon a photo array identification procedure, presented to non-native English speakers in a private restaurant, was unreliable and unnecessarily suggestive.
A man entered a restaurant carrying a handgun and confronted Rodriguez and Deleon, witnesses with limited English proficiency. Police arrived and interviewed Rodriguez and Deleon. Both similarly described the gunman but varied in their descriptions of the gunmanís height, age, and type of shirt. A photo array was created with eight photos from a computer program that synthesized information and then retrieved images of all photos from police files that matched the information. Police selected photos matching the descriptions but the defendant was the only person in either array who wore a white tank top-style shirt (a/k/a "wife beater"). The police read the "Photo Line-Up Witness Instructions" line by line and translated. Rodriguez and Deleon eventually identified the defendant.

On appeal, the defendant argued that the photo array was unnecessarily suggestive because he was the only person wearing a white tank top known as a "wife beater" and that the shirt was a "symbol of violence and criminality." The Court disagreed, finding that the defendant had not shown anything in the record indicating that either witness noticed the defendantís shirt in the photo or that their identification of him was influenced or affected by clothing. "[P]hysical differences in photographsÖdo not in and of themselves render a photographic spread unnecessarily suggestive." The defendant also argued that the photo array was unnecessarily suggestive because the defendantís photo was "featured prominently in the top middle of the array," that the police were careless in the selection of the photographs, and that the police had no safeguards in place to ensure the accuracy of an identification made by a non-English speaker. Because these issues were not preserved for review, the Court denied addressing them.

Kelly A. Ayotte, attorney general (N. Wiliam Delker, senior assistant attorney general, on the brief and orally) for the State. Getman, Stacey, Schulthess & Steere, PA of Bedford (Andrew R. Schulman and Elizabeth Hurley on the brief, Mr. Schulman orally) for the defendant.

State v. William Dalling
August 4, 2009

  • Whether the supporting affidavit failed to establish probable cause on its face
  • Whether in applying for a search warrant, the officer made material misrepresentations by intentionally or recklessly omitting relevant information
Ferm told the police that her live-in boyfriend, the defendant, cooked and recently smoked crack cocaine at her residence, that the defendant left her house with a number of boxes with items such as "overnight clothes", and that the defendant planned to return the next day. She speculated the defendant had removed "everything illegal" from her house and said the defendant "knew" she would call the police. The police applied for a search warrant, explaining that, based upon the officerís expertise, cooking utensils caked with cocaine residue are kept at the same places defendantís live. On the typed affidavit, the officer included a handwritten note that Ferm believed the defendant might have taken the drugs from the residence. During a search, police seized drug-related paraphernalia but no drugs were found in the residence.

On appeal, the defendant argued that the supporting affidavit did not establish probable cause on its face because of the handwritten note. The Court disagreed because the note did not posit that the defendant also removed the utensils to cook crack cocaine, which could contain cocaine residue. The defendant argued that the officer recklessly or intentionally made material misrepresentations in the affidavit by omitting Fermís belief that the defendant removed "everything illegal" from the home, that the defendant left with personal items and that he knew she would call the police.

The Court disagreed. To support probable cause to search a residence, affidavits must establish a sufficient nexus between the illicit objects and the place to be searched. The officer established a nexus between the drug paraphernalia sought and Fermís residence and evidence supporting Fermís belief that the defendant left with his belonging and that she would call the police is insufficient by itself to otherwise defeat the nexus and an ample showing of probable cause. Even if Fermís information was included within the affidavit, the magistrate could still have found probable cause.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally) for the State. Julia M. Nye, Public Defender, of Concord, on the brief and orally, for the defendant.

State v. Gary Dodds
August 21, 2009

  • Whether eluding rescuers following an accident, constitutes a "communication" and a "report" that would justify a conviction for false public alarm
  • Whether the defendantís feet could be considered evidence such that altering them constituted falsifying physical evidence
  • Whether the Stateís receipt of an unsolicited letter from a doctor, provided to the defendant shortly before trial, caused him prejudice justifying reversal
  • Whether the trial court erred in denying the defendantís expert the use of a computer animation purporting to depict the cause of the accident
The defendantís car swerved off the road and witnesses who called 911 did not find the defendant in his car. A twenty-seven hour search was conducted and the defendant was eventually found claiming some memory loss. The defendant was convicted of false public alarm and falsifying evidence.

On appeal, the defendant argued that his conduct did not fall within the meaning of the false public alarms statute as he never made any "communication" and never "reported" an emergency. On appeal, the defendant also argued that he was not guilty of falsifying physical evidence by injuring his feet because they were not anything that could be used in a proceeding or investigation. Neither argument was preserved for review, but the Court reviewed the issues under the "plain error" rule.

The Court determined the trial court made no plain error in its interpretation of the statutes. A defendant could make known or "communicate" an emergency through his conduct, such as by evading search and rescue, as the statute proscribes communicative conduct that indirectly causes a "report" of an emergency that the defendant knows is false. A defendant could be guilty of falsifying evidence where he altered anything with a purpose to impair its veracity or availability in the proceeding. Since the defendant claimed he could not recall much of what happened after the accident, any injury or absence thereof would have been relevant, even if the evidence falsified would not admissible at trial.

The Court determined there was sufficient evidence of false public alarm because a rational juror could have found that the defendant failed to return from and failed to communicate his location, thereby evading search and rescue personnel, doing so knowingly. There was sufficient evidence of falsifying physical evidence as a rational juror could have found that after being involved in an accident, the defendant altered the appearance of his feet to make them appear consistent with his statement of events and that he did this with the purpose to impair their verity or availability in a proceeding. Credibility determinations are up to the jury.

The defendant argued that the Stateís late disclosure of Dr. Lauze caused him prejudice because he did not have time to depose her, to retain his own expert, or to prepare his cross-examination adequately. The court disagreed, assuming, without deciding, that even if the Stateís disclosure failed to comply with Rule 98, the defendant failed to meet his burden because he did not ask to depose the Dr., had listed the same Dr. as his own witness, and had the opportunity to cross-examine her. The defendant further argued that the trial court should have admitted the computer animation showing how the accident occurred to illustrate the testimony of his traffic reconstruction expert. The Court held that the computer animation would not have provided the jury with any evidence not already provided by diagrams and testimony.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman on the brief and orally), for the defendant.

State v. Jeremiah Holmes
August 4, 2009

  • Whether the trial court erred by excluding evidence of a witnessí prior conviction for receiving stolen property because theft is a crime of dishonesty under Rule 609(a)(2).
The Court based its holding on the prior rule 609(a), as that was in effect at trial and held that the result in the case would be the same under either version of the rule. 609(a) states that evidence that the witness has been convicted of a crime shall be admitted ifÖ[it] involved dishonesty or false statement. On appeal, the defendant argued that a conviction for receiving stolen property was suitable for cross-examination under the rule as theft was always a crime of dishonesty. The Court disagreed finding that the history revealed that the rule was intended to include a "narrow subset of criminal activity", that, at its broadest, included crimes involving deceit, untruthfulness, or falsification. The Court held that because Driscollís conviction for receiving stolen property did not involve an act of dishonesty or false statement within the meaning of Rule 609(a)(2), the trial court did not exercise unsustainable discretion in omitting the conviction.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally) for the State. Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

State v. Brian A. Sheperd
August 4, 2009
Reverse and Remand

  • Whether the State knowingly withheld relevant information contained within a redacted sexual assault examination and whether the withheld information would have affected the verdict
The defendant was charged with aggravated felonious sexual assault for engaging in sexual penetration while E.T. was "physically helpless to resist." At a party, both E.T. and the defendant smoked marijuana, drank beer, and kissed. E.T. wanted to have sex with the defendant and both agreed that if the defendant obtained a condom, they would have sex. E.T. testified that her memory was impaired after drinking games and that she remembered waking up to sexual activity. The defendant admitted to consensual intercourse with E.T. The State relied upon the testimony of E.T. and a witness, Ron Olson. Following the defendantís conviction but before co-defendant MacDuffís trial, the State advised MacDuffís counsel that Dr. Gladstone (who had completed the sexual assault examination and interview) had redacted portions of the report the defendant had received before trial. Following an in camera review, the trial court found certain evidence discoverable and permitted MacDuffís counsel to cross-examination based upon this report. E.T. then refused to participate in trial and the charge against MacDuff was dismissed.

The defendant then filed for in camera review of the un-redacted report and for a hearing to question Dr. Gladstone. The requests were granted. Dr. Gladstone testified she intentionally omitted the bottom half of page one, all of page two, and all page numbers. The omitted sections referenced E.T.ís mental health history. Dr. Gladstone omitted the pages believing the information was privileged. The information contained in the complete report resulted in the discovery of other mental health records. The defendant moved to set aside the verdict and for a new trial. The trial court initially granted the motion, scheduled a Daubert hearing, and granted an in camera review of E.T.ís mental health records from other sources. The trial court then reversed, denied a new trial, and concluded that while Dr. Gladstoneís conduct "constituted a violation of the defendantís rights to discover relevant evidence", there were other revenues to address the violation.

On appeal, the Defendant argued that the trial court erred in denying his motion for a new trial as the information met the newly discovered evidence standard and that the non-disclosure of the information violated his due process rights under Brady and Laurie. The Court held that the defendant met his burden to show that Dr. Gladstoneís report was favorable, as although the defendant may not have been able to introduce evidence of E.T.ís mental health history at trial, the evidence would have helped the defense in the preparation or presentation of its case.

The Court held that the State knowingly withheld the evidence. Even if the information was privileged, the Dr. could have obscured the portions with a marker, allowing the information to remain physically intact, putting the reader on notice that information had been redacted, rather than rearranging notes and omitting page numbers to give the false impression that the report was complete. The Court further held that the State could not meet its burden to show that the undisclosed evidence would not have affected the verdict.

Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, 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 v. Daniel P. Hynes
August 5, 2009

  • Whether theft by extortion includes threats to sue and whether its inclusion would chill the right of access to the courts.
  • Whether the theft by extortion statute was unconstitutional as it was vague and overbroad
As an attorney, the defendant sent a "Cease and Desist/Demand Letter" to a salon, stating that the companyís policy of pricing for different types of haircuts, based upon gender and age, was unlawfully discriminatory and constituted an unfair trade practice. The defendant demanded $1000 to avoid litigation, but later admitted that he was not a client of the salon and had found it, along with its prices, on the Internet. The salon contacted the NH Attorney Generalís office and the defendant convicted of theft by extortion.

On appeal, the defendant argued that RSA 637:5, II(i) did not prohibit his conduct because none of its eight specific provisions included a threat to file a lawsuit and inclusion would chill the right of access to the courts. The defendant further argued that the term "substantially benefit" within the statute encompassed non-pecuniary satisfaction. The Court disagreed, finding that the legislature did not intend "benefit" to include any social injustice or generalized concern. The Court disagreed that their interpretation would chill access to the courts. The defendant argued that he had a good faith basis for the suit. The Court disagreed as RSA 354-A grants standing only to persons "aggrieved" to complain of discriminatory practices. As the defendant did not have a client and was not a client of the salon, he was not "aggrieved."

The defendant argued that the extortion statute was unconstitutionally overbroad on its face and as applied. The Court disagreed, stating the statute gives clear notice to a person of ordinary intelligence that the statute prohibits a threat where the threat-maker would not receive some actual and definite advantage. Lastly, the defendant argued that the statute failed to give adequate notice that a threat to sue fell within the scope of extortion. The Court disagreed because the statute included any act which would not in itself substantially benefit him but which would harm substantially another person. Justice Dalianis dissented, disagreeing that the Defendantís threatened lawsuit was "objectively baseless" as, before this decision, the Court had never articulated that a person must have some definite or special interest in the outcome in order to be an aggrieved person.

Kelly A. Ayotte, attorney general (Elizabeth J. Baker, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

Choice of Law and Federal Law

FOG Motorsports #3, Inc. v. Arctic Cat Sales, Inc.
August 21, 2009
Memorandum Opinion
Vacated and Remanded

  • Whether the Dealership Act rendered the forum/choice of law clause unenforceable
FOG entered into a dealership agreement with Arctic Cat, a manufacturer of snowmobiles that included a forum selection clause requiring any disputes to be resolved by the State and Federal Courts of Minnesota. A choice of law clause included the same language. FOG commenced an action against Arctic Cat under the Dealership Act (RSA 357-C). Arctic Cat moved to dismiss based upon the forum selection clause. The trial court ruled that even if the Dealership Act applied, the forum selection clause was enforceable and the case was dismissed.

On appeal, FOG argued that the Dealership Act rendered the forum selection clause unenforceable. The Court assumed, without deciding, that the Dealership Act applied. NH permits the enforcement of forum selection clause, if in writing, so long as enumerated statutory exceptions do not apply. The Court interpreted RSA 357-C:6, II and RSA 357-C:2 to require a NH forum to entertain any action brought under the Dealership Act and to render unenforceable any forum selection that would prevent it from so doing. Case remanded to determine whether the choice of law clause was enforceable.

Devine, Millimet & Branch, P.A., of Manchester (Steven E. Grill and Leigh S. Willey on the brief, and Mr. Grill orally), for the plaintiff. Robins, Kaplan, Miller & Ciresi L.L.P., of Boston, Mass. (Alexander G. Henlin on the brief and orally, for the defendant.

State v. Hess Corporation & a.
August 21, 2009
Affirmed in part, reversed in part, remanded

Interlocutory appeal from superior court, transferring the following questions:
  • Did the superior court err in concluding that the service of process upon Flint Hills and Yorktown in accordance with Federal Rules of Civil Procedure, pursuant to order and process of a federal court that lacked subject matter jurisdiction, was improper service for purposes of NH law once the case was remanded to state court and requires their dismissal?
  • Did the trial court err in concluding that Flint Hills and Yorktown must be dismissed, notwithstanding their actual notice of the lawsuit?
  • Did the trial court err in concluding that the First Amended Complaint filed in federal court "remains viable" because leave to amend and to add additional parties likely would have been granted by the trial court had the case not been removed to federal court?
The State originally brought an action against refiners and manufacturers that was removed to federal court. The State filed to remand, arguing that the federal court lacked subject matter jurisdiction. The motion was denied. The State sought court approval to amend its complaint to add parties without waiving its objection to subject matter jurisdiction. The motion was granted and the State timely amended its complaint to add Flint Hills and Yorktown as defendants. The defendants were served in compliance with the Fed. Rules of Civil Procedure (FRCP).

The case was then remanded to the superior court in NH. Flint Hills and Yorktown moved to dismiss. The trial court granted their motion, ruling that the Stateís failure to effectuate proper service of process upon them in accordance with NH statutes deprived the court of personal jurisdiction. The trial court did not address the defendantís argument that their contacts in NH would not support either general or specific personal jurisdiction.

On appeal, the defendants argued that the superior court lacked personal jurisdiction because they were never properly served with a valid writ. The Court held that because the State could have filed its amended complaint as a matter of right, the fact that the federal court "allowed" the State to file it is immaterial. After a case has been remanded for lack of subject matter jurisdiction, NH has discretion to give effect to federal orders and pleadings. The trial courtís adoption of the federal courtís order was not an unsustainable exercise of discretion.

The defendants further argued that the service upon them was improper because it did not strictly comply with New Hampshire statutes. The Court assumed, without deciding, that the service did not comply with NH requirements, but disagreed. Because the case was in federal court when the first amended complaint was filed, the State only had to comply with Federal rules. Requiring re-service upon the defendants would contravene NHís strong policy of deciding cases on their merits. Further, there was nothing to suggest that either defendant would have been deprived of its right of notice and an opportunity to be heard if federal service was sufficient.

Kelly A. Ayotte, attorney general (Mary Maloney, assistant attorney general, on the brief), Sher Leff, LLP, of San Francisco, CA (Victor M. Sher on the brief), and Law Offices of Matthew F. Pawa, P.C., of Newton Centre, MA (Matthew F. Pawa and Benjamin A. Krass on the brief, and Mr. Pawa orally), for the State. Hoefle, Phoenix, Gormley & Roberts, P.A. of Portsmouth (Stephen H. Roberts on the brief and orally), and Hunton & Williams LLP, of Richmond, VA (Joseph C. Kearfott on the brief) for defendant Flint Hills Resources, LP. Maggiotto & Belobrow, PLLC of Concord (Corey Belobrow on the brief and orally), for defendant Western Refining Yorktown, Inc.

Contract Law

Diane Clapp v. Goffstown School District
August 5, 2009

  • Whether the school district was unjustly enriched when it had voted to permit staff to participate in the retirement system but failed to implement their inclusion
Clapp worked in the school system as staff from 1971 to 2004, each year signing a new employment contract covering her compensation and fringe benefits. School districts may choose whether to enroll support staff into the NH Retirement System (NHRS). In the 1980ís, Clapp participated in a separate retirement savings plan. Clapp discovered that in 1950, the district had voted to include support staff into the NHRS but that it was never implemented. There was no record that the parties or NHRS had any knowledge of the 1950 vote.

In 2001, the district voted to enroll staff into the NHRS, but was denied credit for previous years due to NHRS lack of knowledge of the 1950 vote. The union petitioned to this Court for review, which held that the employees could purchase the retroactive credit themselves or ask their employer to do so. Clapp purchased retroactive credit, asked her employer to reimburse her, was denied, and then brought suit for declaratory judgment and recovery under negligence and unjust enrichment. The trial court granted Clappís petition for unjust enrichment.

On appeal, the Court held that the trial court has broad and flexible equitable powers and that the trial court correctly held that the district need not been at fault to find unjust enrichment. However, the Court held that the trial court erred in ruling that it was sufficient that the district was unjustly enriched because it kept the money it agreed to pay the NHRS on behalf of the support staff, based upon the 1950 vote. The Supreme Court disagreed with the trial courtís ruling, as one general limitation of unjust enrichment is that recovery is not allowed where there is a valid, express contract covering the same subject matter. Because the parties had defined the employment relationship by valid and enforceable contracts, (including compensation and fringe benefits), Clapp could not recover under unjust enrichment.

Glenn R. Milner, Molan, Milner & Krupski, PLLC, of Concord, for the petitioner. William D. Pandolph, Sulloway & Hollis, P.L.L.C., of Concord, for the respondent.

Family Law

In the Matter of Timothy Sullivan and Dorothy Sullivan
August 21, 2009
Reversed in part, vacated in part, remanded

  • Whether the Trial Court erred in ruling that loan forgiveness was not "income" for purposes of child support.
The partiesí Uniform Support Order (USO) obligated the petitioner to pay 33% of any net bonuses he received, voluntarily by his employer, in child support. In 2006, the petitioner received a loan from his employer, of which a portion his employer forgave in 2007. The forgiveness appeared as a credit on his pay stub as gross "loan income" and appeared as a gross "06 Bonus" in the note amortization schedule. Aside from the above, the employer did not pay the petitioner a bonus in 2007 for his 2006 performance and the petitioner did not pay any additional child support in 2007.

A petition to modify child support and motion for contempt were filed. The petitioner admitted to the loan forgiveness but stated that he had not made any payments on the loan and his still had a loan balance. He did not know why the employer forgave a portion of the loan. The trial court rules that the loan forgiveness was not "income" for the purposes of child support.

On appeal, the respondent argued that because the employer granted the petitioner loan forgiveness in lieu of a bonus, the loan forgiveness should have been treated as a bonus. The Court held that regardless of the employerís intent, the transaction constituted a bonus, and therefore "income", as enumerated in RSA 458-C:2, IV. Loan forgiveness is "an equivalent" of money. Whether it justifies a child support modification is within the courtís discretion after a review of any "special circumstances."

J. Campbell Harvey, Harvey & Mahoney, P.A., of Manchester, for the petitioner. Michael J. Fontaine, Welts, White & Fontaine, P.C. of Nashua, for the respondent.


Sarah Everitt v. General Electric Company & a.
August 7, 2009

  • Whether a corporationís internal policy creates a duty of care towards the public
Citro was an employee of GEís Hooksett plant but was not on duty at the time he was involved in an accident with the plaintiff. The day of the accident, Citro arrived at work despite being told not to due to his confused behavior. The police were called twice to remove him: the first Citro left before the police left, the second, the police performed several field sobriety tests and determined Citro could safely drive. Citro then struck the plaintiff. The plaintiff brought suit against GE and a GE supervisor, asserting that they owed her a duty of care. The defendantís summary judgment motion was granted.

On appeal, the plaintiff argued that GE voluntarily assumed a duty of care towards her by adopting a guideline or policy requiring that impaired employees not be allowed to drive, and that the applicability of this policy was a question of material fact justifying denial of the defendantís motion for summary judgment. The Court disagreed, assuming without deciding even if such a policy applied to the GE Hooksett plant and that the policy was not followed, the mere existence of such a policy did not create a duty of care to the plaintiff. A corporation does not assume a duty to protect the public every time it adopts a policy involving the protection of an employee.

The plaintiff also argued that the defendants owed her a duty of care due to the special relationship between GE and its employees and because the defendants had the ability to prevent Citro from driving. The Court disagreed. Assuming without deciding that such a duty arose under the circumstances of the case, the defendants fulfilled that duty by contacting the police. Their duty to control Citro ended when the police took charge of him.

Thomas Craig, P.A., of Manchester (Thomas E. Craig and David Woodbury on the brief, and Mr. Woodbury orally,) for the plaintiff. Sulloway & Hollis, P.L.L.C. of Concord (Edward M. Kaplan and Melissa M. Hanlon on the brief, and Mr. Kaplan orally), for the defendants.

Property Law

Richard Mansur & a v. David Muskpf & a. v. Swallow Point Association
August 5, 2009

  • Whether the trial court erred in ruling that an easement benefiting non-waterfront property owned by the petitioners extends onto the shoreline of their property.
The petitionerís own lot 20, the respondentís lot 18, and Swallow Point Association (Association), the third-party defendant, owns the Reserved Lot. Respondents purchased lot 18 in 2005, began constructing a home, and the petitioners brought suit. The trial court held that the petitionerís owned an easement to cross and re-cross the Reserved Lot and access 75 feet more or less of the lake shore, as measured from a concrete monument. The trial court resolved the location of the shared boundary line between 18 and the Reserved Lot, which reduced the 75-foot shoreline of the Reserved Lot to 41 feet. Thus, the respondents did own the land they claimed to own, but 41 feet of their shoreline was subject to the 75-foot easement owned by the petitioners.

On appeal, the respondents argued that once the trial court determined that actual monuments controlled the shoreline boundary line between their lot and the Reserved Lot, the scope of the petitionerís easement must likewise be limited. The Court disagreed. Interpretation of a deeded right of way is based upon determining the intention of the parties at the time of the deed. Because the easement language in the original deed was clear, the parties deeding the land intended for the scope of the easement to include the 75 foot shoreline of the Reserved Lot as it existed at that time.

The respondents argued that the actual monuments, rather than the deeded language, should control in determining the boundaries of their land. The Court disagreed. The actual monuments for lot 18 did not have any legal import until lot 18 was conveyed in 1958, after the conveyance of lot 20 (with the established recorded easement contained in the original plot plan). The respondents argued that the easement was not effective because it was not in their chain of title. The Court held that a proper search of the chain of title for the respondentís lot 18 would have revealed the petitionerís easement over a portion of their shorefront.

Lastly, the respondents argued that the petitioners did not have standing to pursue a claim of trespass because easement rights do not grant a possessory interest in land. The Court held that the argument lacked merit because the partiesí right to use the land was interfered with. The Court further denied the respondentís claim of reversible trial court error, as the respondentís failed to demonstrate that any error in the petitionersí claim of being misnamed as an action in trespass caused them to incur material prejudice.

Philip P. Bonafide, Normandin, Cheney & OíNeil, PLLC of Laconia, for the petitioners. Scott H. Harris, McLane, Graf, Raulerson & Middleton, P.A. of Manchester for the respondents, David Muskopf and Mary Allain.

Probate Law

In Re Estate of Kathleen Antonia Porter,
Nos. 2008-756; 2009-066 No. 2009-026
In Re Charles Balok & a.
August 5, 2009

  • Whether the probate court lacked jurisdiction to terminate a life estate in real property granted to him pursuant to the terms of the settlement, and to issue certain orders after he had perfected an appeal to the superior court pursuant to RSA
After the death of his common law spouse, the court approved a settlement of Balokís intestate claim of her estate. The estate agreed to transfer a life interest to Balok and he agreed to reimburse the estate for a prior and future mortgage, insurance, and tax payments. The agreement provided that Balokís interest would terminate if he failed to make such payments. Balok failed to make the payments, the estate filed to terminate Balokís life estate, Balok failed to object, and the petition was granted. Balok later filed a pro se petition that the probate court denied as an untimely motion for reconsideration. Balok then appealed to the superior court.

The superior court dismissed the appeal for lack of subject matter jurisdiction but allowed Balok to assert other claims against the estate. The estate then requested the probate court enforce its earlier order to require Balok to vacate the property. Balok argued that the probate court lacked jurisdiction over the property because he was challenging the dismissal on appeal. The probate court then vacated its order terminating Balokís life estate, amended its order denying Balokís motion for reconsideration, and ordered Balok to file a corporate surety or cash bond. Balok then appealed to the Supreme Court on the probate courtís decisions, filed an interlocutory appeal of the superior courtís dismissal of his appeal, and then filed a third appeal when the probate court again terminated his life estate when Balok failed to file the bond. The Court then consolidated all three appeals and granted a motion to dismiss the appeal as untimely as to the extent that Balok sought to challenge the probate courtís initial order terminating his life estate.

Because Balok did not argue whether the superior court erred by dismissing his appeal, the Court limited its analysis to the subject matter jurisdiction of the probate court. Balok argued that the probate court did not have jurisdiction because the property was not subject to a license to sell under RSA 559:1. The Court disagreed, as the Omnibus Justice Act of 1993 expanded the probate courtís jurisdiction to resolve issues involving real estate of the decedent if the property is "in" the estate to the decedent. Likewise, the probate court has authority to enforce the settlement of a matter within its jurisdiction. Because the probate court approved the settlement of the Balok life estate, including the provision that the life estate could be forfeited, the probate courtís jurisdiction encompassed the enforcement of the settlement. The Court further held that because it affirmed the superior courtís dismissal of the 547:11-d appeal, Balokís argument that the probate court lacked jurisdiction to issue orders after he filed the 547:11-d appeal was moot.

Lorraine L. Hansen, LL Hansen Legal Professional Association of Portsmouth, for Charles Balok. Joshua L. Gordon, of Concord for the Estate of Kathleen Porter.

Melissa Penson
Melissa S. Penson and Enrique F. Mesa, Jr. are a married legal team practicing in Manchester and Nashua, respectively. Melissa is a member of the NH Bar, as well as the Mass. and Fla. bars; she practices criminal, family, and civil litigation with Smith-Weiss, Shepard & Durmer, PC. Enrique is licensed in Florida and practices solely immigration law with Ambassador George Bruno in Manchester.

Enrique F. Mesa, Jr.

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