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Bar News - May 14, 2010

NH Supreme Court At-a-Glance - April 2010


Macpherson Realty, Inc. v. City of Nashua
Hillsborough South Superior Court, No. 2009-263

HICKS, J. The intervenors, Francis and Marguerite Ruel, appeal the ruling of the Superior Court (Lynn, C.J.) enforcing a settlement agreement with the plaintiff, MacThompson Realty, Inc. (MacThompson), and the ruling that it did not violate the statute of frauds. See RSA 506:1 (1997).

Macpherson filed a declaratory judgment petition against the City to reverse a stop work order that halted the addition of a third story to a commercial building. The intervenors, residential neighbors, sought to intervene on the basis that the addition would negatively affect the value of their homes.

At trial the parties entered into settlement negotiations which lead to an agreement that required Macpherson to purchase the intervenors homes at a price determined by an appraiser. The Court misplaced the only copy of the agreement; subsequently, the intervenors rejected the appraiser’s value and denied that they had ever signed the agreement. The trial court found that direct evidence existed to establish that a written agreement existed and that the statute of frauds was satisfied.

On appeal, the intervenors argue that the statute of frauds bars enforcement of the lost settlement agreement. The relevant statute of frauds provision provides, in part, that "[n]o action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought, or some memorandum thereof, is in writing." RSA 506:1; see also RSA 477:15 (2001). If a written agreement is lost or destroyed, the court may enforce it only if direct evidence establishes that it, in fact, did exist. Riverwood Commercial Prop’s, 134 N.H. at 491. The direct evidence consisted of a post settlement letter confirming the execution of the agreement. The attorneys involved also testified that all the attorneys and parties executed the agreement. The intervenors contend that the price of their property is not determinable from the settlement agreement; therefore, the price of the property cannot be identified without resort to parol evidence. Parol evidence is not ordinarily admissible to supply an essential term that has been omitted from an agreement. Maisch v. Cobb, 76 N.H. 62, 63 (1911). The Court held that the purchase price is readily determinable from the settlement agreement because it provides that the price of the property will be set by an appraisal.

In Robinson Company v. Drew, 83 N.H. 459, 460 (1928), we held that although price is an essential term of an agreement, "that does not mean that the contract itself must fix the price or that the price may not be implied." Rather, as long as the "contract prescribes a method which will necessarily result in the determination of the price, that is enough." Robinson Company, 83 N.H. at 460-61. Further, "[w]hile parol evidence may not show the intent of the parties if the contract does not show it, such evidence may be used to show to what things and matters the contract refers." Id. at 461.

In re Pamela Taber-McCarthy and Ricky McCarthy
Hillsborough North Superior Court, 2009-180

DALIANIS, J. The respondent, Ricky C. McCarthy, appeals an order recommended by a Marital Master (Green, M.) and approved by the Superior Court (Abramson, J.) that adopted the qualified domestic relations order (QDRO) proposed by the petitioner, Pamela Taber-McCarthy.

The parties married in 1998 and filed for divorce on January 16, 2006; the final decree was entered in April 2007 and became effective on July 13, 2007. The parties stipulated to a QDRO which assigned the petitioner an amount equal to 50% of the respondent’s vested benefit under his 401k plan that was earned during the marriage (from 1998 to January 16, 2006). The petitioner’s interest was stipulated to be $33,979. The 401k plan administrator stated that it was unclear as to whether gains or losses should be applied from January 16, 2006 until the distribution date. After several hearings, the trial court held that the petitioner’s share was $33,979 and that it shall be payable in a lump sum without the application of any gains or losses occurring after January 16, 2006.

On appeal, the respondent argues that the QDRO the court ultimately adopted caused him to suffer the "loss of approximately $12,000 . . . out of his portion of the funds in order to pay the petitioner the original amount agreed to, which in effect awarded [her] more than what the parties’ agreement called for [her] to receive." He contends that the QDRO, therefore, effected an unequal division of property and that the trial court could not have reasonably found any special circumstances to warrant such a division. He further contends that the division of property, as effected by the QDRO, is inequitable, particularly given the petitioner’s delay in getting the stipulated QDRO approved. He argues that given the delay caused by the petitioner, the trial court unsustainably exercised its discretion by failing to award her the original amount agreed to less the losses incurred in the interim.

According to the parties’ final divorce decree, "[t]he parties agreed on the amount of the retirement and the effective date" for valuing the parties’ retirement benefits. The parties agreed that the valuation date was January 16, 2006. As of that date, the respondent’s retirement plan was valued at $105,070.65, however, the parties’ decree stated that "[i]f it turns out that . . . [this figure] . . . is not accurate, the amount to be transferred can be adjusted either up or down reflecting the accurate figure."

Thereafter, the parties entered into a stipulated QDRO. Consistent with the parties’ agreement, as reflected in their divorce decree, the stipulated QDRO valued the parties’ retirement benefits as of January 16, 2006. The stipulated QDRO stated that "[t]he net amount due [the petitioner] is $33,979.96" based upon the values of the parties’ retirement benefits as of the agreed-upon valuation date.

`The plain meaning of the stipulated QDRO was that the petitioner was to receive a net amount equal to $33,979.96. As the respondent concedes: "Nothing in the QDRO called for the application of any gains and losses on [the petitioner’s] distribution from the date of calculation to the date of segregation or distribution." The QDRO is not ambiguous in this respect, however. See Dow Associates, Inc. v. Gulf Oil Corp., 114 N.H. 381, 383 (1974). It is simply silent on this issue. See id.

`The respondent argues that in the nearly three years since the divorce became final, changes in the stock market have effectively made the $33,979.96 a larger portion of his retirement. Thus, he claims that what was fair and equitable in 2007 is no longer so and that "to reach an equitable result," the trial court should have awarded the petitioner less than the amount stipulated in the QDRO.

`"A property settlement in a divorce decree is a final distribution of a sum of money or a specific portion of the spouses’ property and is not subject to judicial modification on account of changed circumstances." In the Matter of Birmingham & Birmingham, 154 N.H. 51, 57 (2006) (quotation omitted). "Such a property distribution will not be modified unless the complaining party shows that the distribution is invalid due to fraud, undue influence, deceit, misrepresentation, or mutual mistake." Id. (quotation and brackets omitted). The respondent has neither argued nor demonstrated that modification of the parties’ property settlement was required for any of the foregoing reasons. See id. Accordingly, he has failed to demonstrate that modification of the parties’ property settlement was necessary. See id. The respondent’s reliance upon changed circumstances, such as the decline of the stock market, is insufficient to warrant modifications to the original property division. See id.

Appeal of David Duvernay
Department of Environmental Services, No. 2009-487

DALIANIS, J. The petitioners, David and Rae DuVernay, appeal a decision of the respondent, New Hampshire Department of Environmental Services (DES), denying their application for a tax exemption for two septic systems servicing their residential property. See RSA 72:12-a (Supp. 2009).

The DuVernays own property adjacent to Lake Monomonac in Rindge. Their property includes two buildings: a single-family home, which is their primary residence, and a small cottage. Each building has its own septic system. In 2009, they applied to DES for a pollution control tax exemption under RSA 72:12-a for the two septic systems and the associated real property. DES investigated the DuVernays’ application, and concluded that the septic systems were pollution control facilities within the meaning of RSA 72:12-a. However, it denied their application for a tax exemption, stating that "granting a tax exemption for these individual septic treatment systems, would not, in [DES’s] judgment, reasonably promote some proper object of public welfare or interest." (Quotation omitted.) DES relied upon our decision in Appeal of Town of Rindge, 158 N.H. 21, 26-27 (2008), in which we upheld a tax exemption under the same statute for Franklin Pierce University’s wastewater treatment facility. The DuVernays filed a motion for reconsideration, which DES denied. This appeal followed. The DuVernays argue that because DES found that their septic systems are pollution control facilities pursuant to the plain meaning of RSA 72:12-a, its denial of their application was unjust, unreasonable and unlawful. We agree.

RSA 72:12-a provides that qualifying pollution control facilities shall receive a tax exemption. Nothing in the statute permits DES to exercise its discretion to deny an exemption to a qualifying facility. See In re Jack O’Lantern, Inc., 118 N.H. 445, 448 (1978) ("An agency may not add to, change, or modify the statute by regulation or through case-by-case adjudication."); cf. Appeal of Public Serv. Co. of N.H., 124 N.H. 79, 88 (1983) (noting that the relevant inquiry under the statute is the purpose of the facility and not its effectiveness in controlling pollution).

DES contends that, when a pollution control facility is mandated by regulation. In Appeal of Town of Rindge, we did not intend to imply that any additional public benefit, other than pollution control, was required for a facility to be entitled to a tax exemption under RSA 72:12-a. Although we cited specific examples of additional public benefits in dicta, we never held that these additional benefits were constitutionally required. Indeed, in explaining that a tax exemption "may" affect when an entity elects to install a particular device or what type of device it installs, we did not find that the specific pollution control devices installed by the university in fact were installed earlier than required by law or that they were of a higher quality than those required by law. Id. As long as a facility qualifies under the plain meaning of the statute, and, thus, promotes the public benefit of controlling pollution, DES has no discretion to deny the applicant a tax exemption.

In re Jeffrey Gray and Janette Gray
Salem Family Division, No. 2008-655

Jeffrey Gray and Janette Gray are the parents of two children; they divorced in August 2002. In October 2004, the Salem Family Division (DiMeo, J.) awarded custody of the children to the children’s aunt. In a separate order, the family division ordered the father and mother to pay child support directly to the aunt. They appealed the custody order. In January 2006, we held that under RSA 458:17 the family division lacked statutory authority to award custody to the aunt. In the Matter of Jeffrey G. & Janette P., 153 N.H. 200, 204-05 (2006). Within a month of our decision, the aunt obtained a guardianship over the children in Maine.

In March 2006, the Salem Family Division (Korbey, J.) ceded jurisdiction over the custody of the children to the State of Maine. The father appealed that decision. In an unpublished order dated November 28, 2006, we affirmed the family division’s order ceding jurisdiction over the children’s custody to Maine. Petition of Jeffrey G., No. 2006-0349 (N.H. November 28, 2006). On January 30, 2007, the Family Division (Hurd, J.) partially granted DHHS’s motion to reconsider suspending enforcement of the support order and scheduled a hearing. Subsequently, the DHHS moved for the father to show cause why he had not complied with the support order; the Salem Family Division found him in contempt and ordered him to pay $29,901 in child support.

Although the father raised twenty-one issues on appeal, the Court focused on two central issues: (1) the Salem Family Division’s authority to enforce the support order and (2) the Family Division’s contempt order.

The plain language of RSA chapter 490-D (Supp. 2009) grants subject matter jurisdiction to the family division over the father’s support order. See Daine, 157 N.H. at 427 (finding "court’s authority in matters of marriage and divorce is strictly statutory"). Pursuant to RSA chapter 490-D, the legislature has granted the family division jurisdiction over "[p]etitions for divorce, nullity of marriage, alimony, custody of children, support, and to establish paternity." RSA 490-D:2, I. The family division’s authority includes the power to address child support in divorce proceedings. See RSA 458:17.

The family division’s decrees remain in effect until they are judicially modified, unless the court has provided for earlier cessation of payments or the child support obligation terminates by operation of law. In the Matter of Feddersen & Cannon, 149 N.H. 194, 200 (2003). The family division’s jurisdiction continues "with respect to all subsequent proceedings which arise out of the original cause of action." Daine, 157 N.H. at 427-28 (quotation omitted). Therefore, the family division retained the ability to modify and enforce the support order.

The plain language of RSA chapter 490-D (Supp. 2009) grants subject matter jurisdiction to the family division over the father’s support order. See Daine, 157 N.H. at 427 (finding "court’s authority in matters of marriage and divorce is strictly statutory"). Pursuant to RSA chapter 490-D, the legislature has granted the family division jurisdiction over "[p]etitions for divorce, nullity of marriage, alimony, custody of children, support, and to establish paternity." RSA 490-D:2, I. The family division’s authority includes the power to address child support in divorce proceedings. See RSA 458:17. The family division’s decrees remain in effect until they are judicially modified, unless the court has provided for earlier cessation of payments or the child support obligation terminates by operation of law. In the Matter of Feddersen & Cannon, 149 N.H. 194, 200 (2003).

The family division’s jurisdiction continues "with respect to all subsequent proceedings which arise out of the original cause of action." Daine, 157 N.H. at 427-28 (quotation omitted). Therefore, the family division retained the ability to modify and enforce the support order.

We cannot conclude that the family division unsustainably exercised its discretion when it found the father failed to comply with the support order. At the hearing, the father provided no evidence to show that his financial circumstances had changed, thus requiring a modification of the support order. The only evidence before the family division was a financial affidavit the father submitted. In addition, the family division found the father to be voluntarily underemployed "[b]ased upon his most current financial affidavit and the total absence of any evidence that he is physically or mentally incapacitated." This was further supported by "the lack of any requests since 2005 to modify his obligation based upon a substantial change in circumstances."

State v. Schwartz
Belknap Superior Court, No. 2008-863

The defendant was charged with one count of second degree assault, alleging that he caused bodily injury to his friend after a night out at a bar, by striking or stomping him repeatedly "under circumstances manifesting extreme indifference to the value of human life," and one count of simple assault, alleging that the defendant caused unprivileged physical contact to his friend (the victim) by hitting him. Following a trial, a jury acquitted the defendant of second degree assault but convicted him of simple assault. As part of his sentence he was ordered to pay restitution in the amount of $36,389.36.

The defendant first argues that the trial court erred in sentencing him to pay restitution for breaking Stewart’s jaw when the simple assault charge of which he was convicted did not allege that he caused bodily injury or that he hit Stewart in the face. Specifically, he contends that the State failed to prove the requisite causal connection between the simple assault of which he was convicted and the damages for which it sought restitution. The defendant further argues that the trial court erred in not granting his motion to dismiss the simple assault charge based upon insufficient evidence. "Determining the appropriate restitution amount is within the discretion of the trial court." State v. Eno, 143 N.H. 465, 470 (1999); see RSA 651:63, I (2007) ("Any offender may be sentenced to make restitution in an amount determined by the court."). "If the factual basis for restitution is disputed, however, the State must prove by a preponderance of the evidence that the loss or damage is causally connected to the offense and bears a significant relationship to the offense." Eno, 143 N.H. at 470 (quotation omitted).

The defendant argues that "because the ability to award restitution is strictly circumscribed by the factual allegations in the charging document on which the defendant was convicted," the trial court erred in ordering him to pay restitution. This argument, however, misconstrues the statutory requirements for awarding restitution. Restitution is not an element of the offense. Rather, it is "money . . . provided by the offender to compensate a victim for economic loss." RSA 651:62, V. Here, the defendant was convicted of causing unprivileged physical contact to Stewart by hitting him. Stewart suffered economic loss as a result of the defendant’s criminal conduct whereby he incurred medical bills for treatment of his broken jaw. The record supports a finding by a preponderance of the evidence that the physical injuries suffered by Stewart were causally connected to the fact that the defendant hit him. See State v. Armstrong, 151 N.H. 686, 687 (2005) (defendant may be held liable for economic losses directly resulting from factual allegations that support the conduct covered by the conviction). Further, and on the record before us, there is no credible evidence that Stewart incurred his injuries in any other manner than being hit by the defendant. We hold that the trial court did not err in sentencing the defendant to pay restitution.

The defendant argues that because no one testified that he hit Stewart, he may have been assaulted by someone else or may have sustained injuries in a drunken fall. We do not agree that those are other rational conclusions supported by the evidence in the record. As the trial court reasoned in denying the defendant’s motion to dismiss, despite the lack of direct evidence of physical contact between the defendant and Stewart, "looking at the record as a whole, including the injuries, the statements made by [the defendant] that were heard and recounted by Mr. Hurd . . . and the totality of the record, there is circumstantial evidence that if accepted by the jury, if credibility issues are resolved in favor of the State and if the evidence is taken in [a] light . . . favorable to the State" would allow a jury to find that the State proved all the elements of the charge beyond a reasonable doubt.

In re Audrey Zikmanis and Mark Peabody
Hillsborough North Superior Court, No. 2009-275
Vacated and remanded

DUGGAN, J. The petitioner, Audrey Zikmanis (wife), appeals a recommendation of the Master (Green, M.) approved by the Superior Court (Abramson, J.) modifying the parties’ child support obligation. She argues that the trial court erred in: (1) modifying a valid support order as a sanction for her conduct; and (2) modifying the support obligation retroactively and prospectively when no request for modification was pending, and without obtaining current financial affidavits or making requisite findings as to the parties’ abilities to pay.

The parties were divorced in 1998 and had two children from the marriage. The husband was ordered to pay $100 per month in child support and to provide health insurance when it became available to him in NH (he worked in MA and had limited coverage availability). In 2001, the trial court entered another Uniform Support Order, which it designated an enforcement order. The order again provided that the parties would each be liable for 50% of the children’s uninsured medical expenses; it further found that health insurance was then only available for the husband in Massachusetts but noted that the husband had agreed to provide coverage at the point it became available.

The matter came before the trial court again in 2008 after the parties each filed petitions and motions that alleged violations of the parties’ divorce decree. The limited record before us indicates that the trial court was also asked to consider modifying the parties’ respective parenting time with the children and enforcing the parties’ liability for the children’s accrued uninsured medical expenses.

After a hearing, the trial court found that, although the wife had violated a court order, the husband’s request that she be found in contempt was moot. The trial court then considered the wife’s request to be reimbursed for one-half of the children’s uninsured medical expenses incurred in 2007 and 2008. The court found that the wife’s actions "relative to the relationship between [the husband and the younger child] have been less than helpful, and in fact, contemptible," and further stated: "The Court, in looking at the child’s best interest, cannot punish the child by switching custody or mandating parenting time that would be counterproductive to the child.

The Court can, however, indicate that there may be certain financial consequences, and the fact that [the wife] has to pay all co-pays or uninsured expenses of $20 or less is one of those consequences."

The trial court’s modification addressed expenses dating back to 2007, which predated the filing of the parties’ motions and petitions for contempt. RSA 458-C:7, II (2004) specifically provides that modification of a child support obligation shall not be effective prior to the date that notice of the petition for modification has been given to respondent. RSA 461-A:14, VIII (Supp. 2009) further provides that no modification of a support order shall alter arrearages due prior to the date of filing the motion for modification. we find no evidence in the record before us that any motion for modification was filed by either party. Rather, it appears that the modification of the parties’ child support obligations was ordered solely because of the wife’s conduct.

The wife argues that, because the sanction imposed modified the husband’s child support obligation, the children were made chargeable for her conduct. We agree. We have previously observed that the "purpose of child support is to provide economic support for the children, not the obligee parent." In the Matter of Carr & Edmunds, 156 N.H. 498, 503 (2007). "Regardless of the parents’ actions, the children should not be deprived of the amount of support to which they are entitled." Id. It was therefore error for the trial court to reduce the child support obligations of the husband as a sanction for the wife’s conduct.

Beer v. Bennett
Portsmouth District Court, No. 2008-808

The defendant, Terry M. Bennett, appeals a decision of the Portsmouth District Court (DeVries, J.) finding, inter alia, that he violated the Consumer Protection Act (CPA), RSA ch. 358-A (2009), in the sale of a car to the plaintiff, Douglas C. Beer. The plaintiff cross-appeals on issues related to the award of damages.

On appeal, the defendant argues that the trial court erred in: (1) finding that he violated the CPA; (2) finding that he had a duty to disclose the car’s alleged defects; (3) finding him liable for negligent misrepresentation; (4) failing to employ the appropriate measure of damages; and (5) refusing to attribute any contributory fault to the plaintiff. In his cross-appeal, the plaintiff contends that the trial court erred in failing to find a willful or knowing violation of the CPA and in failing to award double or treble damages.

While we believe the evidence would sustain a finding that the defendant committed one or more of the enumerated acts, see RSA 358-A:2, V….the trial court does not appear to have made such a finding. The defendant concludes that because his alleged misrepresentation was unintentional, it fails to satisfy both the knowledge or intent requirement of Kelton v. Hollis Ranch, 155 N.H. 666, 668 (2007), and the rascality requirement noted in Hair Excitement v. L’Oreal U.S.A., 158 N.H. 363, 370 (2009). Pursuant to RSA 358-A:10, the amount to be doubled or trebled is the amount of damages awarded, whether actual or nominal. As noted previously, the trial court did not award either actual or nominal damages. The purchase price and shipping costs refunded to the plaintiff were not damages subject to being doubled or trebled under the CPA, but rather were an integral part of the remedy of rescission. Cf. Schwartz, 634 N.E.2d at 108 (concluding that where rescission is ordered for a willful and knowing violation of the Massachusetts consumer protection statute, “the amount of purchase money refunded to the buyer [is not] included in the ‘damages’ subject to multiple assessment under the statute”). Because the trial court awarded no damages that could be multiplied under the CPA, we need not address whether it erred in failing to find a willful or knowing violation of that statute.

Opinion of the Justices
(Eliminating requirement for additional Breath Test Samples) at the Request of the House No. 2010-166

Proposed House Bill 1146 eliminates the requirement that DWI breath samples be large enough, in quantity, so that the accused may have it tested by his own independent analysis. The Court was asked whether the bill violated the due process clause, or any other provisions, of either the USSC or the New Hampshire Constitution. Justices Broderick, Duggan and Conboy issued one opinion (hereinafter referred to as “Opinion A”) and Justices Dalianis and Hicks issued another. (hereinafter referred to as “Opinion B”). Both Opinions “A” and “B” declined to opine on the general question about whether the bill violated “any other provisions of the Federal or State Constitutions. See Opinion of the Justices (Weirs Beach), 134 NH 711 (1991) because the question was too broad.

Opinion A held that the bill did violate the New Hampshire Constitution and declined to answer whether the bill violated the Federal Constitution (but the Court referenced the USSC case, California v. Trombetta, 467 U.S. 479 (1984) which upheld a similar statute.

Opinion B held that the bill did not violate the New Hampshire Constitution. In reaching their conclusion, Justices Dalianas and Hicks cited the Arizona case of Baca v. Smith, 604 P.2d 617 (1979) and stated that advances in technology have made the requirement for a second sample unnecessary to satisfy due process concerns.

Wesley Beckles v. Jennifer Madden, M.D.
Hillsborough North Superior Court, No. 2009-232
Reversed and remanded

The plaintiffs, Wesley and Maggie Beckles, appeal a decision of the Superior Court (Barry, J.) granting summary judgment on their medical malpractice claims in favor of the defendant.

The plaintiffs filed suit against the defendants, alleging that they were negligent in the medical care they provided to Mr. Beckles. Specifically, they allege that the defendants failed to diagnose Mr. Beckles’ apparent vitamin B-12 deficiency that was causing gait and balance problems, and also failed to timely initiate precautionary measures to prevent him from falling. According to the plaintiffs, Mr. Beckles’ fall and broken ankle were a direct result of the defendants’ negligence, and this injury ultimately led to his brain hemorrhage and other injuries. The trial court concluded that the opinions of the plaintiffs’ two medical experts were insufficient to warrant a reasonable juror’s conclusion that the defendants’ alleged negligence caused Mr. Beckles to fall. With a sufficient level of probability that Mr. Beckles would have received physical therapy or an assistive device prior to his fall, or that even if he had received therapy and an assistive device, the fall would have been avoided. The trial court ruled that the medical experts gave conclusory statements or bald conclusions regarding causation which are insufficient to demonstrate that any negligence on the part of the defendants caused Mr. Beckles’ fall.

On appeal, the plaintiffs argue that the trial court erred in granting summary judgment because the record reveals a genuine issue of material fact on causation. They contend that the medical experts opined with reasonable medical certainty that had the defendants immediately provided preventative care to Mr. Beckles, it is more likely than not that he would not have fallen. According to the plaintiffs, the various factual assumptions underlying the expert medical opinions on causation relate to the weight and credibility to be afforded to the opinions and constitute matters that are within the province of the fact-finder, not the trial court.

We disagree with the characterization by the trial court and the defendants that the expert opinions consist of bald conclusions and conclusory statements. Rather, the plaintiffs’ experts explained the normal and expected time line and the procedures for providing proper precautionary measures to ensure Mr. Beckles’ safety, and opined that had these procedures been followed, Mr. Beckles probably would not have fallen. We conclude that the summary judgment record, including the expert testimony and opinion letter, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the plaintiffs, would be sufficient for a reasonable juror to conclude that from the time Mr. Beckles was seen by the defendants on March 26 and on March 28, there was a reasonable probability that had the defendants provided proper precautionary care, Mr. Beckles would not have fallen on April 6.

State v. Dilboy
Strafford Superior Court, No. 2008-287

The defendant, Anthony Dilboy, was convicted of two counts of manslaughter, see RSA 630:2 (2007), and two alternative counts of negligent homicide, see RSA 630:3 (Supp. 2005) (amended 2006), following a jury trial. On appeal, he argues that the Trial Court (Fauver, J.; Houran, J.) erroneously: (1) admitted toxicology evidence under New Hampshire Rules of Evidence 401, 402, 403, and 404(b); (2) denied his motion to suppress urine test results; (3) admitted evidence of lab test results in violation of the Federal Confrontation Clause; (4) instructed the jury that evidence of voluntary intoxication could satisfy the mental state element of reckless; (5) used a special verdict form, and (6) denied his motion to dismiss the class A felony negligent homicide charges.

We first consider whether the toxicology evidence should have been admitted. The defendant argues that the toxicology evidence was not relevant to prove he was “under the influence” or suffering the effects of withdrawal because the amount of drugs found in the samples was too small. He also argues that the toxicology evidence was cumulative given the other evidence about his recent drug use and his symptoms of heroin withdrawal. He next argues that the probative value of the toxicology evidence was substantially outweighed by the danger of unfair prejudice from its admission because such evidence is “inherently prejudicial.” Finally, he argues the evidence should have been excluded under New Hampshire Rule of Evidence 404(b). Because the toxicology evidence was relevant, offered for reasons other than to prove the defendant’s propensity to use drugs, and the trial court found that its probative value was not substantially outweighed by the danger of unfair prejudice, we conclude that the trial court’s ruling was not clearly untenable or unreasonable. See State v. Fandozzi, 159 N.H. __, __ (decided March 10, 2010).

We next address the defendant’s argument that the trial court erred in denying his motion to suppress the urine test results. The Court held the motion to suppress was properly denied. We next address the defendant’s argument that the admission of Dr. Wagner’s testimony about the test results for his blood and urine samples violated the Federal Confrontation Clause. The defendant argues that the test results are testimonial under the recent United States Supreme Court case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and contends that they were inadmissible absent the testimony of the analyst who performed the tests. The State counters that Melendez-Diaz applies only to “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.

Here, although we assume that the test results were testimonial, Dr. Wagner’s testimony did not violate the Federal Confrontation Clause. Dr. Wagner explained the procedures used and testing done by the lab, and that he reviews the data, paperwork, comments, and any other issues that arise with samples. Specifically, with respect to the defendant’s samples, Dr. Wagner testified that he reviewed the test results, and explained that the laboratory had found trace amounts of Klonopin, cocaine, and a metabolite of cocaine in the defendant’s blood, and cocaine, a metabolite of cocaine, morphine, and Oxycodone in the defendant’s urine. Based upon the defendant’s statements and the lab results, Dr. Wagner rendered his opinion as to the effects of the drugs taken by the defendant on his mind and body and as to when the defendant took the drugs. Finally, Dr. Wagner testified about the signs and symptoms of heroin withdrawal, its cognitive and physical effects, and the likely effects of the combination of the drugs taken by the defendant and heroin withdrawal on the defendant.

Instead of “parrot[ing] out of court testimonial statements,” Johnson, 587 F.3d at 635, Dr. Wagner generated opinions based upon his review of the test results, and the defendant had the opportunity to cross-examine him regarding his opinions as well as the laboratory procedures and test results. Accordingly, his testimony did not violate the Federal Confrontation Clause. See Turner, 591 F.3d at 932-34; Johnson, 587 F.3d at 635; Hough, 2010 WL 702458, at *6. We hold, therefore, that the element of being “under the influence” of a controlled drug may be proved by evidence that the defendant was suffering symptoms of withdrawal from drug usage. We have held that to prove a driver was “under the influence,” the State need prove only that the driver was impaired “to any degree.” State v. Wiggin, 151 N.H. 305, 309 (2004). Nothing in the statute limits such impairment to the time immediately following the ingestion of the drugs.

Motorsports Holdings, LLC v Town of Tamworth
Carroll County Superior Court, No. 2008-632
Affirmed in part, reversed in part and remanded

The intervenors, Amy K. Berrier and other abutters, landowners and residents of Tamworth, appeal the decision of the Superior Court (Houran, J.) that vacated and remanded the Town of Tamworth Planning Board’s decision to deny the application for a special use permit sought by the petitioner, Motorsports Holdings, LLC (Motorsports).

Motorsports owns approximately 250 acres of land in the Town of Tamworth. It wishes to build a private country club and motorsports facility, including a “3.1-mile long, European-style road course” and structures to support the repair, servicing, and garaging of racing vehicles, as well as a hotel, restaurant, access road, and parking facilities. Construction would involve dredging and filling 14,759 square feet of wetlands and would affect 16,952 square feet of intermittent streams. In total, construction would affect at least sixteen distinct wetlands areas.

The planning board voted to deny Motorsports’ application for the permit, deciding that the proposed project did not meet five of seven Section A criteria under the WCO. Motorsports appealed to the superior court, which granted leave to certain abutters and residents of Tamworth to intervene, including the appealing intervenors before us. The trial court conducted a hearing in June 2008, during which one witness, the president of Motorsports, testified and the parties presented offers of proof and legal argument.

Subsequently, the trial court vacated the planning board’s decision and remanded the matter. It declined to reach certain procedural issues. The intervenors appealed to this court, and Motorsports cross-appealed. The trial court’s review of the planning board’s decision was governed by RSA 677:15, V (Supp. 2009), which provides that the trial court “may reverse or affirm, wholly or partly, or may modify the decision brought up for review when there is an error of law or when the court is persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable.” Upton v Town of Hopkinton, 157 NH 115 (2008). In this case, the planning board apparently did not issue a written decision that outlined its reasons for denying Motorsports’ application for a special use permit. But see RSA 676:3, I (Supp. 2009) (local land use board shall issue a final written decision which either approves or disapproves an application for a local permit); Town of Tamworth Planning Board Rules of Administrative Procedure § 5.K (“Notice of decision using Appendix D.2 or D.3 will be made available for public inspection at the Town Office building within 72 hours after the decision is made, as required by RSA 676:3.”). A written decision is not included in the certified record, and the intervenors do not contest Motorsports’ assertion that the planning board did not provide it with one. Rather, the intervenors argue that the November 8 minutes constitute an adequate statement of the planning board’s reasons for disapproving Motorsports’ application for a special use permit in accord with RSA 676:4, I(h). We disagree.

We underscore the trial court’s observations that “[t]his is a large and complicated project with extensive submissions to the Board, and a long history before the Board and State and Federal permitting agencies.” Further, the WCO is not a zoning ordinance under which the planning board determines whether a proposed project constitutes an appropriate use of land. Rather, it sets forth a regulatory permitting scheme governing the use of and impact upon wetlands. Thus, the planning board’s task is to review the application, and identify any deficiencies it perceives regarding particular wetland impact areas.

Under the circumstances of this case, we hold that casting separate votes on each of the seven Section A criteria with respect to the project as a whole, without providing reasons, explanations or findings directed to adversely affected wetland areas or buffer zones, does not constitute an adequate statement for the grounds of disapproval necessary to comply with RSA 676:4, I(h). Because the November 8 minutes do not satisfy RSA 676:4, I(h), we hold that the record supports the trial court’s ruling to vacate and remand.

In its cross-appeal, Motorsports asks us to reach a procedural issue that the trial court declined to address. It argues that the trial court erred by failing to rule on whether the planning board illegally deliberated and rendered a final vote in violation of its right to meaningful notice and opportunity to participate in review of its application. In particular, it contends that because the planning board publicly noticed the November 8, 2008 meeting as a “work session” and gave no indication that it intended to deliberate and render a final vote on the application, the board’s vote to deny the application must be reversed pursuant to RSA 676:4, IV. The trial court declined to rule on this procedural challenge because it determined that the issue was not likely to arise on remand. We agree and similarly decline to address this argument.

Finally, Motorsports argues that “remand is no longer available” and that we should uphold the trial court’s decision by vacating the planning board’s denial of its application. It contends that because a majority of the original planning board members no longer sit on the board, a quorum will not be available to consider the case on remand. This argument is premised on the notion that Motorsports is entitled to the same planning board members to decide the matter on remand, a novel notion for which it fails to provide adequately developed legal argument and legal support. Accordingly, we decline to address its argument. See Guy v. Town of Temple, 157 N.H. 642, 657-58 (2008) (judicial review not warranted for sweeping legal assertion that lacked adequately developed argument or legal support).

Appeal of Langenfeld
NH Compensation Appeals Board, No. 2009-362
Reversed and remanded

The petitioner, Michael Langenfeld, appeals a decision of the New Hampshire Compensation Appeals Board (board) ruling that he was not entitled to be reimbursed for the $72,461.90 he incurred in legal fees and costs and applying the 2005 version of RSA 281-A:44 to award him interest on his overdue medical bills. See RSA 281-A:44 (Supp. 2009) (hereinafter, 2005 version of RSA 281-A:44).

The petitioner argues that the board erred when it reversed its prior decision requiring the carrier to pay him $72,461.90 in legal fees and costs and applied the 2005 version of the workers’ compensation act. We will overturn the board’s decision only for errors of law, or if we are satisfied by a clear preponderance of the evidence before us that the decision is unjust or unreasonable. Appeal of Dean Foods, 158 N.H. 467, 471 (2009); see RSA 541:13 (2007). The board’s factual findings are prima facie lawful and reasonable. See RSA 541:13. As the appealing party, the petitioner bears the burden of proof. See Appeal of Dean Foods, 158 N.H. at 471.

The carrier in this case appears to accept its obligation to pay a share of fees and costs associated with the holiday. The carrier does not dispute this obligation, but instead contends that the federal court decision already ordered it to pay these fees and costs. We disagree with the carrier’s interpretation of the federal court’s order. Several provisions in the federal court’s order make clear that the carrier’s lien offset payments the carrier had already made and did not include the carrier’s holiday from future expenses. See RSA 281-A:13, I(b) (carrier entitled to a lien “to the extent of the compensation, medical, hospital, or other remedial care already paid or agreed or awarded to be paid”). The plain meaning of the section of the order in which the federal court calculated the amount of the carrier’s pro rata share of attorney’s fees and costs reveals that the court calculated the carrier’s pro rata share based only upon the value of its lien. The federal court did not consider the carrier’s pro rata share of fees and costs due for the holiday the carrier would be able to exercise in the future.

As previously discussed, the federal court calculated the carrier’s pro rata share of fees and costs based upon the percentage the lien represented of the total present value of the settlement. Because the carrier’s lien of $367,344.00 represented approximately 53% of the total present value of the settlement, the court ruled that the carrier was responsible for 53% of the petitioner’s fees and costs. At no time did the federal court discuss the carrier’s holiday or calculate the carrier’s pro rata share of the fees and costs associated with it. Accordingly, we reject the carrier’s assertion that the fees and costs it has already paid pursuant to the federal court order include its share of fees and costs for its holiday.

We have long held that statutes are presumptively intended to operate prospectively. Appeal of Silk, 156 N.H. at 542.

When the legislature is silent as to whether a statute should apply prospectively or retrospectively, as is the case here, our interpretation turns upon whether the statute affects the parties’ substantive or procedural rights. Id. When a statute is remedial or procedural in nature, it may be applied to cases pending at the time of enactment. Id. If application of a new law would adversely affect an individual’s substantive rights, however, it may not be applied retroactively. Id. Nevertheless, in the final analysis, the question of retrospective application rests upon a determination of fundamental fairness because the underlying purpose of all legislation is to promote justice. Id. Interest is available as a remedy to an injured employee under the 2005 version of RSA 281-A:44 pursuant to RSA 281-A:44, I(a), which provides, in pertinent part: “In any dispute over the amount of the benefit payable under this chapter which is appealed to the board or supreme court or both, the employee, if such employee prevails, shall be entitled to reasonable counsel fees and costs as approved by the board or court and interest on that portion of any award the payment of which is contested.” It is also available under: (1) RSA 281-A:44, III “on awards for disability indemnity benefits”; (2) RSA 281-A:44, IV for “a scheduled permanent impairment” award; and (3) RSA 281-A:44, V for “awards for medical, hospital, and remedial care.” RSA 281-A:44, I was amended and RSA 281-A:44, III, IV and V were added by the legislature in 2003. See Laws 2003, 99:2. In this way, interest, like an award of attorney’s fees and costs, is an integral part of the substantive benefits available to injured employees. Accordingly, paragraphs II and V to RSA 281-A:44 are, therefore, substantive in nature and apply only prospectively. See Appeal of Silk, 156 N.H. at 542-43. Having determined that the board erred when it applied the 2005 version of RSA 281-A:44 and that, instead, the version of RSA 281-A:44 in effect in June 1990 applies to this case, we remand to the board to determine the interest to be awarded the petitioner for his overdue medical bills.

Appeal of Carnahan
Compensation Appeals Board, No. 2009-130

The petitioner, Timothy Carnahan, appeals the October 2008 decision of the New Hampshire Compensation Appeals Board (CAB) reducing his workers’ compensation benefits to the diminished earning capacity rate.

The record supports the following facts. Carnahan was a self-employed tractor-trailer driver and furniture mover until September 15, 2000, when he sustained a work-related lower back injury. Vanliner Insurance Company, the workers’ compensation carrier, accepted his claim and began paying him temporary total disability benefits. Carnahan sought treatment for his injury from a variety of physicians. He ultimately had surgery in June 2001, resulting in a spinal bone fusion, but experienced persistent difficulties with pain and mobility. In December 2001, Dr. Powen Hsu, a physiatrist [sic], began treating Carnahan for his lower back injury. In March 2007, the CAB found that medical evidence and Carnahan’s testimony supported the conclusion that he suffered from an unstable fusion, ongoing pain, and physical limitations. The CAB further found that Carnahan had a sedentary work capacity and that the carrier failed to demonstrate a change in Carnahan’s condition sufficient to merit a reduction in benefits. As a result, the CAB maintained Carnahan’s temporary total disability benefits.

In January 2008, the carrier petitioned the DOL for a review of the extent of continuing, work-related disability. In May 2008, the DOL hearing officer found that, based upon Carnahan’s testimony and testimony from vocational witnesses, Carnahan had, “at the least, a full-time, light duty work capacity” and “a significant earning capacity.” In addition, the DOL hearing officer found that Carnahan’s physical capacity had improved since October 2007. As a result, the DOL hearing officer concluded that Carnahan was no longer entitled to temporary total disability benefits, and that based upon the length of disability benefits already received, this decision was effectively a termination of benefits.

Carnahan appealed this decision to the CAB. The CAB held a de novo hearing and in October 2008, concluded that Carnahan “was capable of at least full-time sedentary work.” Based upon video surveillance evidence and vocational testimony, the CAB found Carnahan “self-limiting,” uncooperative, and not credible. The CAB ruled that the carrier had demonstrated that there had been a mistake in the prior determination of the extent of Carnahan’s disability and that there had been a change in his condition warranting reduced benefits. The CAB concluded that Carnahan was likely capable of returning to “gainful employment,” but unlikely to return to his previous job and earning capacity. As a result, the CAB granted the carrier permission to reduce Carnahan’s temporary total disability benefits to the diminished earning capacity rate, effectively terminating his benefits. Carnahan requested a rehearing, which the CAB denied in January 2009. This appeal followed.

We first address Carnahan’s argument that the DOL’s and the CAB’s determinations in August 2006 and May 2008, that Carnahan had a full-time sedentary or light duty work capacity, barred a later reduction in benefits. He argues that, without a change in his work capacity, res judicata and collateral estoppel prohibited the CAB from reducing his benefits in October 2008. We disagree. The doctrines of res judicata and collateral estoppel apply to final agency decisions in workers’ compensation cases. Appeal of Wingate, 149 N.H. 12, 15-16 (2002); Appeal of Hooker, 142 N.H. 40, 43 (1997). However, RSA 281-A:48, I, specifically states that “[a]ny party at interest with regard to an injury . . . may petition the commissioner to review a denial or an award of compensation” on several grounds, including a “change in conditions” and “mistake as to the nature or extent of the injury or disability.” This plain language provides an exception to the finality otherwise accorded to CAB decisions and gives the CAB continuous jurisdiction. See Meserve v. State, 119 N.H. 149, 154-55 (1979) (finding that “when . . . the legislature has directed the agency to exercise continuous jurisdiction . . . res judicata will not apply to prevent the agency from exercising its statutory power to correct a mistake of law”).

We next address Carnahan’s argument that because “gainful employment” and “earning capacity” have the same meaning under RSA 281-A:48, the CAB improperly reduced his benefits because it found that he “had no earning capacity, but was capable of gainful employment.” In its October 2008 decision, the CAB found that the carrier “failed to meet its burden of proof that the claimant is capable of returning to his previous job and earning capacity, but . . . met its burden of proof to show that the claimant is capable of returning to full-time gainful employment.”

Carnahan argues that this finding is erroneous because the CAB: (1) improperly found that he had no earning capacity, but was capable of gainful employment, an inherently contradictory decision; and (2) failed to identify any change in his vocational capacity, as a change in conditions, before it determined his earning capacity. We disagree. The initial test for determining whether a claimant is entitled to compensation is “whether the worker is now able to earn, in suitable work under normal employment conditions, as much as he or she earned at the time of injury.” Appeal of Woodmansee, 150 N.H. 63, 68 (2003). The two-step analysis for reducing or terminating a claimant’s benefits is: (1) “whether the claimant experienced a change in conditions”; and, if so, (2) “whether that change affected his earning capacity.” Jackson, 142 N.H. at 206.

We disagree that the CAB’s findings in its October 2008 decision are inherently contradictory because we conclude that “gainful employment” and “earning capacity” do not have the same meaning under RSA 281-A:48. In Woodmansee, we defined “earning capacity” as “an objective measure of a worker’s ability to earn wages” and “whether the worker is now able to earn, in suitable work under normal employment conditions, as much as he or she earned at the time of injury.” Woodmansee, 150 N.H. at 68; see Larson, supra. We also held that a determination of a claimant’s earning capacity must reference “the worker’s overall value in the marketplace, . . . taking into account such variables as his age, education and job training.” Id. (brackets and quotation omitted). During the CAB’s September 2008 hearing, the carrier introduced video surveillance evidence to demonstrate that Carnahan was capable of more physical activity than he had previously reported to his medical providers, the DOL, and the CAB. The video showed two images: (1) on the day of his May 2008 DOL hearing, Carnahan walking normally in his yard before later limping into the DOL; and (2) Carnahan setting up a backyard pool in July 2008. In its October 2008 decision, the CAB found that the video clearly demonstrates “that the claimant can do much more than he has testified that he is able to do.” Furthermore, based upon the weight of all of the evidence, the CAB determined that Carnahan’s pain complaints were “likely exaggerated,” and that he was “self-limiting” and “capable of at least full-time sedentary work.” Relying upon Appeal of Staniels, 142 N.H. 794 (1998), Carnahan argues that the CAB erroneously relied upon the video evidence because it did not relate back to his condition on the date of his May 2008 hearing. We disagree.

Here, the issue decided by the DOL hearing officer in May 2008 was Carnahan’s physical capacity in May 2008. In its October 2008 decision, the CAB properly considered the video as evidence of Carnahan’s physical capacity as of May 2008 and determined that the claimant had been “less than forthcoming in his testimony regarding his actual physical abilities.” See Woodmansee, 150 N.H. at 68 (finding that “[i]t is the board’s province, not ours, to weigh the evidence in the first instance” (quotation omitted)). There is nothing in the CAB’s October 2008 decision that suggests that it used the video evidence to determine Carnahan’s physical condition as of October 2008. On the contrary, a fair reading of this decision shows that the CAB considered the video only as evidence of Carnahan’s physical condition in May 2008, as permitted under our reasoning in Staniels, 142 N.H. at 796-97.

William Amann

William J. Amann, of Craig, Deachman & Amann, has recently relocated to Manchester, NH. He practices bankrutcy law and handles trustee matters, real estate and corporate litigation. He has been a member of the NH Bar since 2001.

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