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Bar News - November 13, 2009

NH Supreme Court At-a-Glance - October 2009


Civil Law Ė Landlord-Tenant

Christopher Lally v. Lauren Flieder, No. 2008-917
October 30, 2009
Reversed and remanded

  • Whether the trial court erred in granting the landlordís claim for possession and dismissing the tenantís action on the grounds that cable television is not a protected utility.
Plaintiff tenant and defendant landlord had an unwritten month-to-month lease that had continued for two years. The parties agreed that the lease would terminate on August 31, 2008. The tenant failed to vacate, and the landlord served the tenant with a notice requiring him to vacate. On September 2, 2008, the landlord filed an eviction action and later terminated the tenantís cable television service. The tenant requested that the landlord restore the service, and when the landlord refused the tenant filed suit. The trial court granted the landlordís request for possession and dismissed the tenantís action, ruling that cable television service was not a protected utility under RSA 540-A:3, I.

On appeal, the tenant argued that the trial court erred in determining that cable television service was not a protected utility within the meaning of RSA 540-A:3, I. The Court reviewed the plain language of the statute, the legislative history of the provision, and the contemporary use of cable television service in arriving at its conclusion that the legislature intended to prevent the unlawful termination of cable service by a landlord as a type of self-help tactic. The Court held that cable television is a protected utility service within the scope of RSA 540-A:3, I, reversed the trial courtís order dismissing the tenantís action, and remanded for further proceedings.

Christopher Lally, pro se. Lauren Flieder, pro se.

Criminal Law

State of NH v. Jeffrey Pepin, No. 2008-788
October 20, 2009
Reversed and remanded

  • Whether the trial court erred in concluding that the defendantís claims of ineffective assistance of counsel based on violations of double jeopardy and due process were procedurally barred because those claims were not raised on direct appeal.
The defendant was convicted of first degree assault, second degree assault, and criminal restraint, and his convictions were affirmed on appeal. State v. Pepin, 156 N.H. 269 (2007). The defendant later filed a petition for writ of habeas corpus and motion to correct illegal sentence in which he alleged ineffective assistance of counsel. Among other claims, the defendant asserted that his counsel was ineffective for failing to protect his rights under the Double Jeopardy and Due Process Clauses of the state and federal constitutions. Treating the filing as a motion for a new trial, the trial court refused to review these claims because the defendant had failed to raise them in his direct appeal.

The Court held that the trial court erred in concluding that the ineffective assistance claims were procedurally barred. If a habeas corpus petitioner can show harmful constitutional error, he may collaterally attack the conviction which resulted in the loss of his constitutionally protected liberty interest, even after the time for direct appeal has expired. Although habeas corpus may not be used as a substitute for appeal, Avery v. Cunningham, 131 N.H. 138 (1988), the Court has decided the merits of ineffective assistance of counsel claims on motions for new trial and petitions for writ of habeas corpus. Cases decided after Avery have undercut the broad rule that procedural defaults may preclude later collateral review. Accordingly, the trial court should have considered the merits of the defendantís claims of ineffective assistance of counsel relating to double jeopardy and due process. The Court reversed and remanded.

Kelly A. Ayotte, attorney general, and Nicholas Cort, assistant attorney general, for the State.

Paul Borchardt, assistant appellate defender, of Concord, for the defendant.

State of NH v. Damien K. Young, No. 2008-399
October 30, 2009
Convictions affirmed, consecutive sentences vacated, and remanded

  • Whether the trial court erred by denying the defendantís motion to sever the count of felon in possession of a firearm from the charges of attempted murder and first-degree assault.
  • Whether the trial court erred by denying the defendantís motion to dismiss the charges and for a directed verdict based on insufficient evidence.
  • Whether the trial court erred by imposing consecutive sentences for the attempted murder and assault convictions regarding the same victim.
The defendant and another man approached a car parked at a Manchester restaurant and fired multiple gunshots into the car, striking two men inside. Both men were seriously injured, but survived. The defendant had a known grudge against one of the victims. The defendant and the victims had seen one another earlier on the night of the shooting, and the defendant requested that his friends follow the victimsí car and tell him their location. Once his friends reported the location of the victimsí car, the defendant and another friend approached the parked car and opened fire. A jury convicted the defendant of one count of attempted murder, two counts of first degree assault, and one count of being a felon in possession of a firearm.

The defendant appealed, alleging first that the trial court erred by denying his motion to sever the felon in possession of a firearm count from the remaining charges. Prior to trial, the defendant had agreed to stipulate to his convicted felon status. On the first day of trial, however, the defendant requested that the trial court not tell the jury of his convicted felon status. The defendant ultimately withdrew his stipulation and requested that the felon in possession charge be severed, a motion that the trial court denied. On appeal, the State argued that the defendantís motion to sever was untimely because it was not filed forty-five days prior to trial. The Court agreed, concluding that the trial court had not committed an unsustainable exercise of discretion by denying the defendantís motion to sever sought on the morning of trial.

The defendant next challenged the sufficiency of the evidence to support his convictions. Reviewing the evidence in the light most favorable to the State, the Court found that the evidence was sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant committed the crimes of attempted murder on the target of his grudge, first degree assault on both shooting victims, and felon in possession of a firearm.

The defendant also argued that the trial court erred by imposing consecutive sentences for attempted murder and first degree assault regarding the same victim, violating the common law doctrine of merger. Crimes merge only when the identical criminal act constitutes both offenses. Merger has a factual and a legal component: the crimes as charged must be based upon identical criminal conduct, and the legislature must have intended that the single transaction provide the basis for multiple, distinct offenses. The Court concluded that, as charged, the indictments alleged identical criminal activityóthe defendantís discharge of the firearm. The Court further concluded that the legislature did not intend for identical criminal conduct to give rise to distinct charges for attempted murder and first degree assault. The Court held that the trial court erred by imposing consecutive sentences for the attempted murder and assault charges on the same victim and remanded for further sentencing proceedings.

Kelly A. Ayotte, attorney general, and Susan P. McGinnis, senior assistant attorney general, for the State. Mark L. Sisti, Sisti Law Offices, of Chichester, for the defendant.

State of NH v. Elizabeth Flood, No. 2009-024
October 30, 2009

  • Whether the trial court erred by denying the defendantís motion to continue a hearing to impose a deferred sentence until after the disposition of collateral criminal proceedings.
In exchange for her plea of guilty to the misdemeanor of operating after suspension, the defendant received a sentence of ninety days in the house of corrections, deferred for one year conditioned on good behavior. Toward the end of the deferral period, the defendant petitioned the court for suspension of the deferred commitment. The State objected based on the defendantís arrest, within the one-year period, for operating after being certified as a habitual offender. The defendant sought to continue the sentence hearing until after the resolution of the pending charges for the second arrest. The trial court denied the motion, considered the second arrest, and sentenced the defendant to serve the ninety days. The defendant did not testify.

On appeal, the defendant argued that the trial courtís denial of her motion to continue violated due process by forcing upon her an unconstitutional choice between testifying at the sentence imposition hearing and remaining silent at the later criminal trial. Recognizing the difficulty inherent in deciding whether to testify in an imposition hearing while awaiting a related criminal prosecution, the Court nevertheless concluded that the choice was a strategic one and not an impermissible election between two constitutional rights.

The Court reviewed the decisions of other jurisdictions. No court that had recently addressed the issue had concluded that the tension between the right to testify at an imposition hearing and the right to remain silent was of constitutional magnitude. In an appropriate case, nothing prevents a trial court from continuing an imposition hearing until after the underlying criminal prosecution has been resolved. However, a continuance is not constitutionally required. The Court held that the trial court did not violate the defendantís due process rights by failing to continue the imposition hearing until the conclusion of the criminal prosecution.

Kelly A. Ayotte, attorney general, and Nicholas Cort, assistant attorney general, for the State. David M. Rothstein, deputy chief appellate defender, of Concord, for the defendant.

Probate Ė Guardianship

In re Guardianship of Paul T. Williams, No. 2008-331
October 30, 2009
Appeal dismissed

  • Whether the appellant, an interested person pursuant to the guardianship statute, had standing to appeal guardianship orders as an aggrieved person.
Paul Williams, the ward, was the subject of an adult guardianship petition filed by two of his sisters. A third sister, Diane Galebach, filed a cross-petition for limited guardianship. She did not contest the need for a guardianship nor the appointment of her sisters as co-guardians. Ms. Galebach, the appellant here, sought discovery and the appointment of a guardian ad litem (GAL) for her brother. The court denied her motions. At the final hearing, the probate court appointed as co-guardians the two sisters who had petitioned for guardianship and denied Ms. Galebachís motion for limitations on the guardianship. Mr. Williams, who was represented by counsel, did not oppose the guardianship.

Ms. Galebach appealed, calling herself an interested party and asserting that the probate court erred in refusing to limit the guardianship, denying her requests for discovery and the appointment of a GAL, and violating Mr. Williamsí rights. The guardians sought dismissal of Ms. Galebachís appeal, arguing that she did not have standing to appeal because she was not an aggrieved person under RSA 567-A:1. Ms. Galebach contended that she was an interested person and that her sistersí failure to challenge her standing in the court below waived the right to raise the issue on appeal.

The Court first noted that the issue of standing presents a question of subject matter jurisdiction, which may be raised at any time. Although it was not disputed that Ms. Galebach was an interested person under RSA 464-A:4, I, this status does not mean that such a person is also "a person aggrieved" by orders of the probate court and entitled to appeal guardianship orders pursuant to RSA 567-A:1. Any interested person may file a guardianship petition, but only those persons aggrieved by the orders of the probate court may appeal such orders. The term "a person aggrieved" is not further defined in RSA chapter 567-A.

Reviewing the statutes relating to guardianship, the Court found that the focus of the statutory protections was on the proposed ward. The proposed ward, Mr. Williams, was represented by counsel and had the right to appeal as a person aggrieved by a guardianship he opposed or which imposed greater restrictions than necessary. The Court concluded that the orders of the probate court did not cause legal injury to Ms. Galebach. The broad standing afforded to interested persons to file petitions for guardianship did not extend to an interested personís right to appeal guardianship orders. The Court held that Ms. Galebach was not "a person aggrieved" within the meaning of RSA 567-A:1 and that she did not have standing to pursue the appeal.

Diane Williams Galebach, pro se. David Wolowitz and Andrea L. Daly, McLane, Graf, Raulerson & Middleton, P.A., of Portsmouth, for the appellees.

Probate Ė Estate

In re Will and Estate of David J. Bourassa, No. 2008-919
October 30, 2009

  • Whether the probate court erred by granting an extension of time to file suit in superior court against an estate.
  • Whether the superior court erred in awarding the proceeds of the decedentís life insurance policy to his five daughters.
In a consolidated appeal, the fiancťe of decedent David Bourassa challenged orders of the probate court and the superior court. David Bourassa and his wife, Toni, had four daughters. The Bourassas divorced in 1996, and the terms of the divorce decree required that both parents maintain life insurance policies for the benefit of the children. In 1999, Mr. Bourassa changed the primary beneficiary on his life insurance to his fiancťe, Deborah Beck, with whom he had a daughter. In 2006, Mr. Bourassa was killed in an automobile accident. The decedent left a will naming his four oldest daughters as beneficiaries in equal shares. On August 18, 2006, the probate court issued letters testamentary. The executor notified the decedentís four oldest daughters of the change in the life insurance beneficiary. The parties began negotiating the settlement of the estate, including the distribution of the life insurance proceeds, but no agreement was reached.

More than a year after the opening of the estate, the four oldest daughters filed suit in superior court against the estate seeking the amount of life insurance proceeds they would have received had the decedent not changed the life insurance beneficiary. Ms. Beck filed a motion to dismiss the suit, alleging that it was filed outside of the one-year statute of limitations and was therefore untimely. One daughter, Desiree, filed a request with the probate court for an extension of time in which to file suit in superior court. The probate court granted the request.

The superior court thereafter held a bench trial and determined that the insurance policy claim was not a claim against the estate and therefore was not time-barred. The court concluded that the term "children" in the divorce decree meant offspring and included the child of the decedent and Beck. The court determined that the life insurance beneficiary change was void and awarded the life insurance proceeds to the decedentís daughters in five equal shares. Ms. Beck appealed.

Because only Desiree had filed the request for an extension of time, the Court held that the claims of the other daughters were time-barred. As to Desireeís claim, the Court noted that the probate court was the appropriate court in which to file the request for extension of time to file suit in superior court. However, because Desireeís claim was filed outside of one year, the burden was upon her to show an absence of culpable neglect. The Court concluded that Desiree had not demonstrated a lack of culpable neglect in filing her request for an extension of time more than nine months after the one-year statute of limitations had expired. The Court reversed the orders of both the probate court and the superior court.

Kenneth D. Murphy, Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth, for Desiree Bourassa. Michael E. Chubrich, P.A., of Portsmouth, for Deborah Beck.

Property Ė Zoning

Joanne & Peter Radziewicz v. Town of Hudson, No. 2009-085
October 20, 2009

  • Whether the trial court erred in dismissing the petitionersí appeal as untimely when it was filed thirty-two days after the denial of the petitionersí motion for a rehearing.
Petitioners, owners of real property in the Town of Hudson, objected to the Townís grant of a variance to an abutting property. The Zoning Board of Adjustment (ZBA) denied the petitionersí request for a rehearing and the petitioners appealed to the superior court thirty-two days later. RSA 677:4 provides for an appeal of a ZBA decision within thirty days after the date on which the ZBA voted to deny the petition for rehearing. The Town moved to dismiss the appeal as untimely and asserted that the court lacked subject matter jurisdiction. Petitioners claimed that, because the thirtieth day was a Saturday, they were permitted until Monday to file their appeal. At a hearing on the merits, the trial court granted the Townís renewed oral motion to dismiss, which it had initially denied.

Petitioners claimed that the trial court erred by reversing its previous denial of the Townís motion to dismiss; that their appeal had been timely filed because Rule 12(1) extended the filing deadline to the following Monday; that an opinion based on the common law principle that Sundays were to be excluded from computations of time supported their position; and that the trial courtís consideration of the Townís oral motion deprived them of due process and fundamental fairness. The Court rejected all of these claims, holding that parties must comply with statutory timelines to establish jurisdiction in the superior court. RSA 677:4 vests jurisdiction in the superior court only if a petition is filed within thirty days of the ZBAís decision. The statute, not Rule 12(1), governs the petitionersí appeal. Procedural rules of the superior court cannot furnish subject matter jurisdiction for a ZBA appeal where such jurisdiction is lacking.

Joanne Radziewicz and Peter Radziewicz, pro se. David E. LeFevre, Hage Hodes, P.A., of Manchester, for the respondent.

Joanne Eldridge is an Assistant County Attorney for Routt County in Steamboat Springs, Colorado. A veteran of the U.S. Army JAG Corps, she has been practicing law since 1991. She was admitted to the NH Bar in 2008.

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