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Bar News - October 16, 2009

NH Supreme Court At-a-Glance - September 2009


Civil Procedure

Dennis Tulley et. al. v. William Sheldon et. al., No. 2008-456
September 18, 2009
Affirmed in part, reversed in part, and remanded

  • Multiple questions raised on appeal concerning the denial of expert witness costs, attorney’s fees, and prejudgment interest arising out of litigation over a residential lease.
The plaintiffs appealed the order of the Derry District Court (Stephen, J) denying their claims for expert witness costs, attorney’s fees, and prejudgment interest arising from litigation of a residential lease. On January 31, 2006 the parties entered into a residential lease in which the defendants agreed to pay the plaintiffs $1400 monthly to occupy their Londonderry condominium. After detecting mold precipitated by flooding in the basement, the defendants ultimately vacated the condominium on July 14, 2006 and paid no rent in July, August or September. The plaintiffs leased the property to another tenant in October and filed a writ in November 2006 in Derry District Court seeking unpaid rent and other damages. At trial, expert witnesses for both parties testified regarding the mold issue. The trial court awarded the plaintiffs $5,894.69 in damages including $4200.00 for back rent and $1500.00 in attorney’s fees, but denied them $15,040.49 in attorneys fees related to "hiring dueling experts" as well as the fees for the expert witnesses themselves, finding that the lease did not contemplate such an award and that the fees sought were not reasonable. The trial court further denied the plaintiffs’ request for $3,369.91 in interest on fundamental fairness grounds.

On appeal, the plaintiffs argued that the trial court erred in failing to award: (1) the full amount of their attorney’s fees; (2) expert witness costs; and (3) the full interest at the lease rate on the unpaid rent and late charges.

The Court held that because the lease and New Hampshire statute conferred implied and express warranties of habitability respectively, "when they were negotiating the lease, the parties could have reasonably anticipated that ‘all costs incurred’ included necessary attorney’s fees and expert witness costs related to proving habitability." Consequently, the Court reversed the trial court’s denial of these costs and remanded for a determination of "the amount of reasonable attorney’s fees and costs related to such witnesses and incurred in connection with the plaintiffs’ possessory action."

The Court found that the plaintiffs’ claim on appeal that the trial court’s award of only $1500 in attorney’s fees for collecting back rent was an unsustainable exercise of discretion had not been preserved for appellate review and affirmed that award.

Finally, in deciding the plaintiffs’ claim for prejudgment interest, the Court looked first to the parties’ contract, observing that "if the parties clearly provided an interest rate, that interest rate must be applied. If, however, the parties did not clearly articulate a prejudgment interest rate, the statutory rate applies." Based on the provisions of the lease agreement, the Court found that the plaintiffs were entitled to "the contract interest rate, as the prejudgment interest rate, on the unpaid rent and late charges," and remanded to the trial court for recalculation of the interest due the plaintiffs.

Thomas J. Corcoran, Forman, Corcoran & Associates, P.A., of Londonderry, for the plaintiffs. Kysa M. Crusco, Crusco Law Office, PLLC, of Bedford, for the defendants.

Real Estate – Appurtenant Easements

Dana Duxbury-Fox v. Eugene Shakhnovich et. al., No. 2008-512
September 18, 2009
  • Multiple challenges raised on appeal to the trial court’s finding of an appurtenant easement over the respondent’s land.
The respondents appealed an order of the Carroll County Superior Court ruling that the petitioner and third party respondents have an appurtenant easement to use a fifty-foot right-of-way over the respondent’s land. On appeal, the respondents contended that the trial court erred in: (1) finding certain deeds conveyed in 1927 and 1930 ambiguous and admitting extrinsic evidence; (2) "interpreting the deeds to afford the petitioner a right over the subject parcel rather than a separate overland right of way; (3) finding an easement in the chain of title but in language granting permission to specified individuals; and (4) sanctioning expansion of the alleged easement.

With regard to the first issue, the Court agreed that language granting a right to "pass and repass" "over the land" was ambiguous as to the easement’s location and therefore the trial court properly looked to extrinsic evidence to resolve the matter. The Court further concluded that the trial court’s determination of the location of the easement was correct as a matter of law and supported by the evidence. Observing that parties are presumed to have provided for "a reasonably convenient and suitable way" in granting rights of access and that "[t]he benefit to one party or injury to the other of a particular construction may be of decisive weight in determining whether it was intended," the Court affirmed the trial court’s determination that the easement in question afforded the petitioners access to landlocked parcels both via a footpath and from the road to a point from which the petitioners could access their land by boat, and that the original easement later was relocated by agreement of the parties to a new route which the parties then used "for over thirty years without issue." Next, the Court agreed with the trial court that the easement originated in 1927 and 1930 deeds which "provided constructive notice of the easement and imposed a duty upon the respondents to make inquiry as to its location." Finally, the Court affirmed the trial court’s finding that although the easement was improved by the petitioners over time with a driveway and dock, "the nature of the use did not substantially change," and was not "so substantial as to result in the creation and substitution of a different servitude from that which previously existed." Therefore the easement was not, as the respondents alleged, impermissibly expanded.

Joshua L. Gordon, Law Office of Joshua L. Gordon, of Concord, for the petitioner. Randall F. Cooper and Christopher T. Meier, Cooper Cargill Chant, P.A. of North Conway, for the respondents.

Professional Conduct – Attorney Disciplinary Action

Wyatt’s case, No. LD-2009-02
September 18, 2009
Respondent ordered suspended for two years

  • On Supreme Court Professional Conduct Committee’s petition recommending disbarment of respondent, Court ordered him suspended from the practice of law for two years.
Acting on a petition of the Supreme Court Professional Conduct Committee recommending disbarment, the Court ordered the respondent suspended for two years. The Court found that the respondent violated rules 1.7(b), 1.7(a), 1.9(a), and 8.4(a) through conflicts of interest arising from his representation both of his original client, and the conservatorship of the same client.

The respondent initially represented, regarding personal matters, a client who became afflicted by medical issues that arguably left him incapacitated to some extent. The respondent encouraged the client’s conservator to pursue guardianship of the client for limited medical puruposes, assisted the conservator in doing so, and also represented the conservator both simultaneously with and subsequent to his representation of the client. The Court found that the respondent violated Conduct Rule 1.7(b) by failing to consider and reasonably conclude that concurrent representation of the client and his conservator would not adversely affect either client, or that the clients consented ‘after consultation and with knowledge of the consequences." The Court found that the respondent violated Conduct Rule 1.7(a) by representing the conservator and the client’s wife in proceedings to establish guardianship over the client, rejecting the respondent’s argument that his actions in so doing fell within the "safe harbor" conferred by Conduct Rule 1.14 because the respondent was not pursuing guardianship of the client on his won authority but rather represented third parties seeking the guardianship. The Court found that the respondent violated Conduct Rule 1.9 by continuing to represent the conservator after ceasing representation of the client. Finally, the Court found that the respondent violated Conduct Rule 8.4(a) by violating rules 1.7(a), 1.7(b), and 1.9(a).

With regard to sanction, while the Court shared the conclusion of the Professional Conduct Committee that "[c]onsidering the duty violated, the respondent’s mental state, and the harm and potential harm caused . . . the appropriate baseline sanction" was disbarment. However, the Court found that the respondent’s conduct was mitigated by his lack of disciplinary record, excellent reputation among judges and practicing attorneys, cooperation with the professional conduct proceedings, remorse manifested at oral argument, and because his actions were motivated by concern for the client, and instead imposed a two year suspension.

James L. Kruse, assistant disciplinary counsel, of Concord, for the professional conduct committee. Donald L. Wyatt, pro se.

Melinda Lawrence is an attorney at Verrill & Dana in Portland, Maine. She attended Boston College Law School and joined the New Hamphire Bar Association in 1995.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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