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Bar News - March 19, 2010


NH Supreme Court At-a-Glance - February 2010

By:

Charles Kalil & a. v. Town of Dummer Zoaning Board of Adjustment & Charles Kalil & a. v. Town of Dummer
Nos. 2009-017, 2009-018
February 11, 2010
Affirmed (Dalianis, J.)

  • Whether Superior Court erred in allowing Defendant to raise an affirmative defense after expiration of thirty-day notice requirement under Superior Court Rule 28.
  • Whether trial Court erred in denying Plaintiffs’ request to amend his Superior Court appeal six months after final judgment.
  • Whether Trial Court erred in dismissing Plaintiffs’ writ on Res Judicata grounds.
This case involved Plaintiffs’ Superior Court appeal from a ZBA decision. Superior Court Rule 28 prescribes that affirmative defenses must be plead within thirty days of the return date or be waived. Thirty-eight days after the return date the Defendant raised the affirmative defense of Res Judicata and moved to amend its Statement of Defenses. Trial Court allowed the amendment of Defendant’s Statement of Defenses. The Supreme Court affirmed the trial Court’s exercise of discretion citing both Superior Court Rule twenty-eight’s language which allows the late filing of a defense, "as justice may require" and the Preface to the Superior Court Rules which allows the Court to waive application of the rules "as good cause appears and as justice may require".

Plaintiffs moved to amend their Superior Court appeal six months after the judgment had become final to add an inverse condemnation claim. Supreme Court held that the trial Court’s power to allow amendment had by that time ceased.

Plaintiffs next urged the Supreme Court to revisit a prior decision whereby the Court adopted the "transactional theory" rule in defining a cause of action for purposes of Res Judicata application. Plaintiffs maintained that strict application of this rule was "unfair". The Court, after lengthy discussion, disagreed and declined to revisit its prior decision.

Cooper Cargill Chant, P.A. of North Conway (Randall F. Cooper on the brief and orally), for the Plaintiffs. Gallagher, Callahan & Gartrell, P.C., of Concord (Matthew Cairns and Erik G. Moskowitz on the brief and Mr. Cairns Orally)and Gardner, Fuller & Waugh, of Lebanon (H. Bernard Waugh on the brief), for the Defendants.

Roger Bedard & a. v. Town of Alexandria
No. 2009-098
February 11, 2010
Affirmed (Conboy, J.)

  • Whether trial Court erred in finding that Plaintiffs’ creation of a sloped grade surrounding his excavation pit, itself, constituted "excavation" as defined by statute.
  • Whether the trial Court erred in denying the Defendant’s request for attorney’s fees.
Plaintiffs own and operate a sandpit in Alexandria. The statutes (see generally, RSA 155-E) regulating earth excavation, prohibit excavation within fifty feet of a disapproving abutter. The statutes also provide for reclamation of excavation areas in that, all slopes resulting from excavation must be "graded to natural repose". The slopes of Plaintiffs’ pit invaded the fifty foot buffer to the neighbor’s property. Plaintiffs maintained that the grading of the sides of the pit did not constitute actual excavation as they were not removing earth for retail purposes but fixing the lot pursuant to the statutory requirement. Plaintiffs argued that the fifty foot buffer did not apply to the slopes surrounding the pit. The trial Court found that the slope was part of the excavation and this appeal followed.

Supreme Court held that the moving of earth within the fifty feet of an objecting abutter’s land even if done pursuant to the statutorily mandated purpose of reclamation, is still "excavation".

The Town of Alexandria cross-appealed the trial Court’s denial of their request for attorney’s fees. The Town argued that enforcement of regulations confers a "substantial benefit" upon the citizens of Alexandria and the State, and therefore should have been awarded attorney’s fees under the "substantial benefit to the community" standard. The Supreme Court disagreed holding that the "substantial benefit" theory warranted an award of attorney’s fees but was based upon the promotion of a public interest either by a private party or a public official. The Court held further that "a governmental entity’s responsibilities include protection of the public interest, and therefore, the award of attorney’s fees for successfully meeting this responsibility is neither necessary nor warranted".

Collin W. Robinson, of Lyme, on the brief and orally, for the Plaintiffs. Donahue, Tucker & Ciandella, PLLC, of Portsmouth (Christopher L. Boldt and John L. McGowan on the brief and |Mr. Boldt orally), for the Defendant.


Southern New Hampshire Medical Center v. Anthony Hayes
No. 2008-844
February 11, 2010
Affirmed in part, reversed in part and remanded (Duggan, J.)

  • Whether evidence was sufficient for the Trial Court’s granting of Plaintiff’s motion for summary judgment.
  • Whether elopement is an affirmative or general defense to the law of necessaries.
Defendant and his wife were married during period where wife incurred $85,238.88 of medical expenses from complications stemming from alcoholism. Trial Court found husband liable for his wife’s medical expenses under the "doctrine of necessaries". Historically, the common law doctrine of necessaries imposed liability on husbands (later expanded to apply to all married individuals equally, regardless of gender) for essential goods and services provided to their wives by third parties if they failed to provide their wives with such necessaries.

The trial Court granted the Plaintiff’s motion for summary judgment against the wife. Finding that the Defendant had standing to challenge this decision, the Defendant appealed arguing that there existed insufficient evidence. The Supreme Court held that the award of summary judgment was appropriate where the wife’s objection to the motion had failed to allege that there were any disputed issues of material fact or that the Plaintiff was not entitled to judgment as a matter of law. The Supreme Court reiterated the principle that a party opposing summary judgment may not rest upon mere allegations or denials of the pleadings but their response, through affidavit or by reference to depositions, answers to interrogatories, or admissions, must set forth specific facts showing that there is a genuine issue for trial.

The Supreme Court next considered whether "elopement" (when a wife voluntarily leaves her husband to live with an adulterer) was an affirmative or general defense to the law of necessities. The trial Court had precluded the Defendant from raising this defense as it was not raised within the time period prescribed by Superior Court Rule 28. Rather than deciding this issue, the Court determined that the historical purposes underlying the elopement exception to the necessaries doctrine were incompatible with current mores and laws governing modern marital relationships in New Hampshire and that the elopement exception has no place in the common law. The Court further developed the third prong of the necessaries doctrine, which requires that the parties be "married". The Court determined that this finding required more than simply the legal fact of marriage and that liability depends on a mutual expectation that the spouses will share assets, expenses and debts. As such, the Court remanded the case to the trial Court for a new trial on the merits.

What appears to be most significant about this decision is the special concurrence by Justice Hicks in which he tolls the death knell of the doctrine. He notes, that while the issue of abolishing the common law doctrine of necessaries was not raised by either party, "an examination of the doctrine under the traditional factors for determining whether to abrogate precedent…reveals that it has long outlived its relevance and should be abandoned".

Welts, White & Fontaine, P.C., of Nashua (Michael Fontaine and Lisa A. Biron on the brief and Mr. Fontaine orally), for the Plaintiff. Smith-Weiss, Shepard & Durmer, P.C., of Nashua (Robert Shepard and Melissa S. Penson on the brief and Mr. Penson orally), for the Defendant.


Collden Corporation v. Town of Wolfeboro
No. 2009-259
February 19, 2010
Affirmed (Duggan, J.)

  • Whether the trial Court erred in dismissing the Plaintiff’s declaratory action for failure to comply with the jurisdictional deadline for Superior Court review of planning board decisions outlined in RSA 677:15,I.
  • Whether the Trial Court erred in applying the jurisdictional deadline contained in RSA 677:15,1 to Plaintiff’s municipal estoppel claim when it granted Defendant’s motion to dismiss.
The town of Wolfeboro approved the Plaintiff’s subdivision plan conditioned upon, inter alia, Plaintiff completing all improvements on the subdivision within six years. Plaintiff failed to comply with this condition and the planning board determined that approval for the subdivision had expired. Three years later, Plaintiff filed a declaratory judgment action in Superior Court seeking a declaration that it had a vested right to build the subdivision, or, alternatively, that the town was barred under the doctrine of municipal estoppel from prohibiting it from completing the subdivision.

The Court discussed the thirty-day appeal requirement of RSA 677:15,I and concluded that the legislature intended the requirement to apply to all planning board decisions and not just the approving or disapproving of applications. The Supreme Court held that both of Plaintiff’s claims were essentially appeals of the planning board’s decision that the Plaintiff’s rights to complete the subdivision had expired and that the jurisdictional deadline of RSA 677:15,I barred the Plaintiff’s claims.

Orr & Reno, P.A., of Concord (Michael D. Ramsdell on the brief and orally), for the petitioner. Mitchell Municipal Group, P.A., of Laconia (Judith E. Whitelaw on the brief and orally), for the respondent.


The LLK Trust, Thomas R. Walker, Trustee v. Town of Wolfeboro
No. 2009-097
February 11, 2010
Affirmed (Conboy, J.)

  • Whether the Trial Court erred in denying Plaintiff’s request for an abatement from property taxes assessed by the Town of Wolfeboro.
The Petitioner owns ninety-three acres of land, including 1,100 feet of frontage on Lake Wentworth. Petitioner bought the property in January 2006 for $4,600,000.00. At the time, the property was assessed by the town at $362,151.00 and the Petitioner’s annual tax bill was $1,987.00. The Petitioner received a property tax bill for July 1, 2006 based upon the property’s assessed value of $352,151.00. In August 2006, the town reassessed the property to a value of $3,342,151.00 and the Petitioner’s December 1, 2006, semi-annual tax bill rose to an annual tax of $37,651.00.

The Petitioner first argued that the town could not change the assessment as the town had already assessed the property and arrived at a mistaken property tax valuation. He based this argument on the fact that he received his July 1, 2006 tax bill and it was based on an assessed value of $362,151.00. The Court discussed various statutes including RSA 76:15-a, which authorizes a town to collect taxes, assessed on April 1, in two installments the first due on July 1 and the second on December 1. The Petitioner argued that, as the power to tax arises solely by statute, a mistaken property tax valuation can be corrected only through legislatively authorized remedies and that the Town may not simply reassess. The Supreme Court interpreted the trial record differently than the Petitioner and found that the Petitioner’s contention that the town twice assessed the value of his house as of April 1, 2006 was unsupported. The Court found that the July 1, 2006 was based on the prior year’s assessment and that the December 1, 2006 bill was based upon the new assessment as of April 1, 2006.

The Petitioner next argued that the trial Court erred when it concluded that the value of his house site is enhanced by the fact that it is surrounded by current land use. The Court found that this argument was not preserved as the Petitioner not only failed to object to testimony that enhancing the value of the house site was proper, but he was in fact the proponent of such testimony.

Lastly, the Petitioner argued that the trial Court erred by adopting the opinion of the Town’s expert because his methodology was flawed. In rejecting this argument, the Court reminded that, "disproportionality and not methodology is the linchpin in establishing entitlement to a petition for abatement".

Walker and Varney, P.C., of Wolfeboro (Thomas R. Walker on the brief and orally), for the petitioner. Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Mark H. Puffer on the brief and orally) for the respondent.





Olivier Sakellarios is an attorney with Sakellarios & Associates in Manchester, where he focuses his practice in criminal defense, personal injury and family law. Olivier and his wife are expecting their first child and future partner (non-voting) in June. 

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