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Bar News - January 14, 2011


NH Supreme Court At-a-Glance - November 2010

By:

Bank of New York Mellon v. Susan Cataldo et al.
No. 2009-930
November 10, 2010
Affirmed

  • Whether the Plea of Title precluded the District Court from acting further in the case when it had already ordered the Defendant to transfer the case to Superior Court.
The Bank of New York Mellon purchased Susan Cataldo’s mortgage property at a foreclosure sale in December 2008 and subsequently initiated eviction proceedings in the Franklin District Court. In response to this, Susan Cataldo filed a plea of title to which the Bank of New York Mellon objected. The Franklin District Court ruled that "Susan Cataldo should file an action at the Superior Court with regard to title prior to the final hearing on December 1, 2009. If such an action is filed then this case will be transferred for consolidation. In the [absence] of such a filing, the Court will proceed to the final hearing. Susan Cataldo failed to file the action in the Superior Court and Franklin District Court issued judgment in the Bank of New York Mellon’s favor. Susan Cataldo appealed.

The Supreme Court found that the filing of the Plea of Title in the Franklin District Court does not immediately halt the possessory proceedings in the District Court. Instead, the Supreme Court found that District Court proceedings stop only when the Defendant files the recognizance as ordered by the District Court in the Superior Court is the possessory action stayed. This was based upon the Court’s reading of RSA 540:17 and RSA 540:18.

Susan Cataldo and David Russell, by brief, pro se. Shechtman Halperin Savage, of Pawtucket, Rhode Island (Joseph Camillo on the brief), for the plaintiff.


State of New Hampshire v. Matthew Sconsa
No.2009-523
November 10, 2010
Affirmed.

  • Whether the trial court erred in both its construction and application of the knock and announce rule under federal and state law.
     
  • Whether the trial court incorrectly found that the knock and announce rule did not have a constitutional basis.
A police officer on routine patrol, who knew of a hotel that was a site of frequent criminal activity, obtained a list of registered guests from the hotel clerk and discovered that an electronic bench warrant was outstanding for the defendant. Three other officers went to the room and were let inside by the girlfriend of the defendant. While inside the room, the officers took possession of drugs.

The Supreme Court found that while the knock and announce rule protects citizens’ rights to privacy in their homes and prevents unnecessary violence which could result from unannounced entries, it does not apply where the officers are invited into a dwelling by a member of that dwelling. As a result, none of the evidence acquired by police could be suppressed as the Fourth Amendment was not triggered.

Michael A. Delaney, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State of New Hampshire. Wilson, Bush, Durkin & Keefe, of Nashua (Charles J. Keefe on the brief and orally), for the defendant.


City of Manchester v. Secretary of State & a.
Ryan Cashin v. City of Manchester & a.
No.2009-791
November 10, 2010
Remanded.

  • Whether the statutory scheme for municipal budget process enacted under RSA 49-C:23 preempts the proposed charter amendment?
     
  • Whether the proposed charter amendment illegally impairs the mayor’s duty under RSA 49-C:16 to present the city’s board of mayor and aldermen with the original budget based upon the financial needs of the city?
     
  • Whether the proposed charter amendment illegally impairs the powers and duties vested in the city’s elected body by RSA 44 and 47?
     
  • Whether RSA 49-B expressly prohibits the legislation of a tax cap?
     
  • Whether the two-thirds override provision of the proposed charter amendment conflicts with RSA 49-C:12,I.
On July 30, 2008, the city clerk for the City of Manchester received a charter amendment petition that proposed amending the City’s charter to limit annual budget increases "to the change in the National Consumer Price Index – urban as published by the United States Department of Labor for the calendar year immediately preceding the year of the budget adoption." After the petition was supplemented with additional signatures, the deputy clerk found that it was sufficient to require a public hearing pursuant to RSA 49-B:5, IV(a). In accordance with RSA 49-B:5-a, the City filed a certified copy of the preliminary report relative to the proposed charter amendment with the secretary of state, the attorney general and the commissioner of the department of revenue administration for their review "to insure that the proposed amendment is consistent with state law. The secretary of state replied on behalf of himself, the attorney general’s office and the department of revenue administration. The City appealed the determination pursuant to RSA 49-B:10, IV.

A petition for declaratory judgment and injunctive relief challenging the legality of the proposed amendment was filed. The appeal followed. The NH Supreme Court interpreting RSA 49-C:12 to require a simple majority vote unless otherwise specified by statute, the Court concluded that the proposed charter amendment was inconsistent with state law. The Court concluded that the spending cap is preempted by RSA 49-C:12, I and RSA 49-C:23. Accordingly, the Court answered the first and last issue in the affirmative and did not address the remaining arguments or remaining transferred questions of law.

City Solicitor’s Office, of Manchester (Peter R. Chiesa on the brief and orally), for the City of Manchester. Backus, Meyer & Branch, LLP, of Manchester (Robert A. Backus on the brief and orally), for the petitioners, Ryan Cahsin & a. Michael A. Delaney, attorney general (Glenn A. Perlow, assistant attorney general, on the brief and orally), for defendants Secretary of State, Attorney General and Commissioner, New Hampshire Department of Revenue Administration. Joseph Kelly Levasseur, of Manchester, by brief, for the itnervenor, NH Advantage Coalition. Douglas, Leonard & Garvey, of Concord (Charles G. Douglas, III on the brief) for Concord Taxpayers Association, as amicus curiae. Wadleigh, Starr & Peters, of Manchester (Dean B. Eggert and Gregory M. Sargent on the brief), for New Hampshire School Administrators Association, as amicus curiae. Fred S. Teeboom, non-lawyer representative appearing by approval of the Supreme Court under Rule 33(2), on the brief and orally, for Nashua Taxpayers Association, as amicus curiae.


Allianz Global Risks U.S. Insurance Co. & a. v. The State of New Hampshire & a.
No. 2009-745
November 10, 2010
Affirmed.

  • Whether the temporary taking of real property is compensable under New Hampshire law.
     
  • Whether the flood damage resulted from an act of God or whether acts or omissions of the defendants caused or contributed to the flood damage.
The Court found that while temporary takings are compensable in New Hampshire, the facts as presented did not arise to a temporary taking and as such was not compensable under New Hampshire law. As a result, the Court did not make a determination as to the second issue.

Campbell Campbell Edwards & Conroy, of Boston, Massachusetts (Adam A. Larson on the brief) and Denenberg Tuffley, of Southfield, Michigan (Charles R. Tuffley & a. on the brief, and Jeffrey R. Learned orally), for the plaintiffs. Michael A. Delaney, attoarney general (Kevin H. O’Neill, assistant attorney general, on the brief and orally), for defendant State of New Hamsphire. Ransmeier & Spellman, of Concord (Daniel J. Mullen on the memorandum of law and orally) and Ronald F. Kehoe, assistant attorney general, of Boston, Massachusetts, on the memorandum of law, for defendant Commonwealth of Massachusetts.


Dr. Seymour Kessler v. Aaron Gleich, Individually and as General Partner of Fire House Block Associates, L.P.
No. 2009-390
November 10, 2010
Reversed in part; vacated in part, and remanded.

  • Whether the trial court erred by interpreting a portion of an agreement to pay the plaintiff’s attorney’s fees and costs in a declaratory judgment proceeding.
     
  • Whether the trail court erred by requiring the defendant to pay the plaintiff attorney’s fees that the NH Housing Finance Authority incurred in foreclosing the property belonging to Fire House Block Associates, L.P.
The Court aligned itself with those courts that will not infer a party’s intention to waive the benefit of the general rule that parties are responsible for their own legal fees unless the intention to do so is unmistakably clear from the language of the promise. This is in keeping with the Court’s general reluctance to imply a duty to indemnify. With regard to the second issue, the Court found that the note and mortgage obligated Fire House Block Associates to pay the attorneys’ fees and costs associated with the foreclosure and not the plaintiff individually.

Upon & Hatfield, of Concord (Charles W. Grau and Matthew R. Serge on the brief, and Mr. Serge orally), for the plaintiff. Howard & Ruoff, of Manchester (Mark E. Howard on the brief and orally), for the defendant.


The State of New Hampshire v. Kirkman J. Cassavaugh, III
No. 2009-342
November 10, 2010
Affirmed.

  • Whether the court erred in admitting evidence that the defendant previously threatened to kill his victim.
     
  • Whether the court erred in admitting evidence that he terminated his initial interview with police.
     
  • Whether the court erred in admitting evidence of a second police interview from which statements he made invoking his right to be silent had been redacted.
With regard to the first issue, the Court utilized the three part test to establish admissibility of evidence under Rule 404(b). The Court found that the state met its burden and affirmed the trial court’s decision in admitting the evidence. With regard to the second issue, trial counsel did not object to the admission of the evidence and as a result, the defendant had to rely on the plain error rule to support his argument. To find plain error, there must be: 1) an error; 2) the error must be plain; 3) the error must affect substantial rights 4) the error must seriously affect the fairness, integrity, or public reputation for the judicial proceedings. The Court found the state court erred, but that the error was not plain, as it did not affect the defendant’s substantial rights under the third prong and affirmed the trial court’s findings.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the state. Stephanie Hausman, assistant appeallate defender, of Concord, on the brief and orally, for the defendant.


The State of New Hampshire v. Corey Furgal
No. 2010-439
November 24, 2010
Affirmed.

  • Whether RSA 597:1-c violates the defendant’s due process rights because it limits the court’s consideration of individual factors such as flight risk or dangerousness.
     
  • Whether the trial court erred in finding that the statute shifts the burden to the defendant after the state meets its initial burden.
     
  • Whether the state must prove beyond a reasonable doubt that the defendant will be convicted of an offense that carries a potential life sentence, rather than by clear and convincing evidence.
First, the Court concluded that the plain language of RSA 597:1-c does not permit the trial court to consider factors such as flight or dangerousness. Second, following the analysis of Salerno, the Court found that RSA 597:1-c passes constitutional muster in that detention without bail is strictly limited in duration. Finally, the Court found that the state did not have to prove the case by proof beyond a reasonable doubt.

Michael A. Delaney, attorney general (Michael S. Lewis, assistant attorney general, on the brief and orally), for the state. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.


Paul F. Sanchez, III v. Candia Woods Golf Links
No. 2010-007
November 24, 2010
Affirmed.

  • Whether Candia Woods breached a non-delegable duty to provide a safe environment for its patrons, and it was error for the trial court to find as a matter of law that the placement of the yardage markers were not inherently dangerous.
     
  • Whether the trial court erred in granting summary judgment before the expert disclosure deadline had passed, even though Sanchez had informed the court he intended to disclose an expert witness to support his claim.
The Court agreed with the trial court that the "clearly visible yard markers are a known hazard in the game of golf" and "the location of the yard markers in this case [was] not inherently dangerous." The plaintiff was fully cognizant of the clearly visible yardage markers and intended to hit his ball around it. The risk of his shot ricocheting off the marker was one he assumed, and one against which the defendant had no duty to protect him. With regard to the second issue, the existence of a duty is not to be confused with details of the applicable standard of conduct. Duty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; what the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty. Here, because Candia Woods has no duty to protect the plaintiff against the risk which he assumed, expert testimony is irrelevant.

Backus, Meyer & Branch of Manchester (Barry M. Scotch on the brief and orally), for the plaintiff. Wiggin & Nourie of Manchester Doreen F. Connor and Gary M. Burt on the brief, and Mr. Burt orally), for the defendant.


Birch Broadcasting, Inc. & a. v. Capitol Broadcasting Corporation, inc. & a.
No. 2009-919
November 24, 2010
Affirmed.

  • Whether the trial court erred when it (1) found that they breached the parties’ agreement; (2) found that they breached the implied covenant of good faith and fair dealing; (3) denied their motions to dismiss Vox Radio and Nassau I from the case; (4) declined to defer its decision pending the conclusion of the proceedings then currently before the FCC; and (5) failed to rule specifically upon each of their requests for findings of fact and rulings of law.
With regard to the first issue, the Court found that the findings were supported by evidence and therefore not erroneous, and upheld. With regard to the second issue, the court found that the trial court’s finding that the parties’ agreed-upon common purpose and justified expectations included the expectation that their agreement would not expire before July 16, 2009. The trial court did not err in denying the defendant’s motion to dismiss. Likewise, the court found no error in the trial court’s discretion with regard to the fourth issue. With regard to the fifth issue, in interpreting RSA 491:15, the Court has held that while a superior court justice sitting without a jury is generally under no obligation to make finding and rulings in support of a decree unless a party asks for them, when neither party does request them, RSA 491:15 requires a statement of facts and legal rulings in jury-waived and non-jury cases. Here, the Court found that the trial court’s order set forth both sufficient findings of fact and essential ruling of law to support its ultimate decision.

Nelson, Kinder, Mosseau & Saturley of Manchester (Mark D. ATtorri on the brief and orally), and Patton Boggs LLP, of Washington, .D.C (Stephen Diaz Gavin and Kristen M. Jarvis Johnson on the brief), for the plaintiffs. Whittington Law Associates of Hanover (W.E. Whittington on the brief and orally), for the defendants.


In Re Cierra L. & a.
No. 2009-917
November 24, 2010
Affirmed.

  • Whether the superior erred in denying the respondent’s motion to dismiss because it failed to give the respondent de novo appeal priority on its calendar in accordance with RSA 169-C:28, I.
     
  • Whether the superior court failed to conduct a dispositional hearing within thirty days of its findings of abuse and neglect pursuant to RSA 169-C:18.
The general rule of statutory construction is that the word "shall" is a command which requires mandatory enforcement. As a result, the Court found that by its express terms RSA 169-C:28, I, requires the superior court to give appeals under RSA chapter 169-C priority on its calendar. However, the Court found that the statute does not delineate a time period. With regard to the second issue, the Court concluded that the legislature did not intend for the thirty-day time frame to apply to the superior court.

Law Office of Nancy S. Tierney, of Benanon (Nancy S. Tierney on the brief), for the respondent, Cara L. Michael A. Delaney, attorney general (Matthew G. Mavrogeorge, attorney, on the memorandum of law), for the NH Division of Children, Youth and Families. Nixon Peabody of Manchester (Brian D. Duffy on the memorandum of law), for the guardian ad litem, Court Appointed Special Advocates of New Hampshire, Inc.


First Berkshire Business Trust & a. v. Commissioner, NH Department of Revenue Administration & a.
No. 2009-850
November 24, 2010
Affirmed.

  • Whether the transfers are not subject to the real estate transfer tax because the transfers did not constitute "bargain-for-exchanges" within the meaning of RSA Chapter 78-B.
     
  • Whether the trial court erred by allowing the Department of Revenue Administration to impose the real estate transfer tax based upon the subject property’s fair market value.
     
  • Whether allowing the DRA to impose real estate transfer tax upon the transactions at issue violates Part I, Article 12 and Part II, Articles 5 and 6 of the NH Constitution.
With regard to the first issue, the Court found that the transfers were "bargained-for exchanges." With regard to the second issue, the Court agreed with the trial court that the DRA reasonably relied upon RSA 78-B:9, III to determine the actual consideration for the exchanges at issue was the property’s fair market value. With regard to the third issue, the Court found that the real estate tax transactions did not violate the NH Constitution.

Rath, Young & Pignatelli of Concord (Kenneth C. Bartholomew and Christopher J. Sullivan on the brief, and Mr. Bartholomew orally), for the petitioners.

Michael A. Delaney, attorney general (Glenn A. Perlow, assistant attorney general, on the brief and orally), for the New Hampshire Department of Revenue Administration.



Appeal of City of Concord
No. 2009-805
November 24, 2010
Reversed.

  • Whether the New Hampshire Board of Tax and Land Appeals (BLTA) was without jurisdiction to hear the taxpayer’s appeal since RSA 79-A:10 and RSA 76:16-a, I require that a taxpayer file a timely abatement petition with the city before taking an appeal to the BTLA.
The Court first found that the BTLA erred in concluding that due process entitle the taxpayers to actual notice. As such, the Court found the appeal to be untimely and ruled in favor of the City of Concord.

Gardner, Fulton & Waugh of Benanon (H> Bernard Waugh, Jr. on the brief and orally), for the petitioner. Juniper Fells of Manchester, filed no brief.


Jeffrey M. Gray v. Teri E. Kelly & a.
No. 2009-798
November 24, 2010
Affirmed in part, vacated in part; and remanded.

  • Whether the doctrine of res judicata precludes Gray’s suit because a "domestic violence petition is fundamentally different from a replevin and damages action.
     
  • Whether collateral estoppel is inapplicable because Gray defaulted in February 2006 domestic violence action and therefore did not actually litigate ownership of the property.
     
  • Whether trial court unsustainably exercised its discretion when it reversed its initial decision to deny Kelly’s motion to dismiss.
     
  • Whether the February 2006 order did not take effect until the expiration of the appeal period and that he had 30 days from that time to retrieve his property.
The doctrine of res judicata prevents parties from re-litigating matters actually litigated and matters that had been litigated in the first action. As a result, the trial court did not err in precluding Gray’s suit. The trial court did not err in exercising its own discretion when it reversed its own decision for error. The Court finally found that the appeal period had run on Gray’s claims.

Jeffrey M. Gray, by brief, pro se. Romeo & Ryan, of Lowell, Massachusetts (Michael T. Ryan on the brief), for defendant, Teri E. Kelly. Lisa A. Sorenson, pro se, filed no brief.


Petition of Paul Lussier (New Hampshire Retirement System) No. 2009-658 November 24, 2010 Affirmed.
  • Whether the NH Retirement System (NHRS) committed legal error because: (1) the language of RSA 100-A:5 requires that the law in place at the time of a member’s retirement apply to the pension application; (2) New Hampshire law requires that remedial legislation apply to acts occurring prior to its enactment; and (3) it failed to provide him with sufficient due process.
The Court found that the hearings examiner was correct when making conclusions that the petitioner’s absence from work occurred before the board had statutory authority to grant service credit.

Molan, Milner & Krupski of Concord (Glenn R. Milner on the brief and orally), for the petitioner. Foley Law Office, of Concord (Peter T. Foley on the brief and orally), for the respondent.


Lillian E. Billewicz & a. v. John C. Ransmeier & a.
No. 2009-856
November 24, 2010
Affirmed.

  • Whether the plaintiffs did not have standing to sue the defendants until August 11, 2005 when the probate court ordered the establishment of a constructive trust because they did not have a cause of action prior to that date.
     
  • Whether a justiciable controversy existed when the probate court ordered the establishment of a constructive trust.
     
  • Whether a RSA 508:4, the statute of limitations, applies to this action.
     
  • Whether the plaintiff’s action was barred by RSA 564-B:10-1005.
The Court first found that the general rule for standing is that a party may bring suit when the party has suffered a legal injury against which the law was designed to protect and found that the plaintiffs did have standing. With regard to the second issue, the Court found that there was an actual case and as a result, the case was ripe to warrant adjudication. Here, the Court found that the statute of limitations does apply to the action. With regard to the fourth issue, the Court found that RSA 564 applies to this action and further found that the plaintiff’s claims were barred.

Kalled Law Offices of Ossipee (John P. Kalled on the brief and orally), for the plaintiffs.

Ransmeier & Spellman of Concord (John T. Alexander on the brief and orally), for the defendants.



The State of New Hampshire v. Joshua A. Boutin
No. 2008-813
November 24, 2010
Reversed and remanded.

  • Whether the state’s seizure of the defendant violated his rights under Part I, Article 19 of the NH Constitution and the Fourth Amendment to the Federal Constitution.
The Court found the record supported the following facts: On January 27, 2007, at approximately 8:35 p.m., while driving on Bradley Hill Road in Bath, State Trooper Matthew Koehler observed a Jeep Cherokee with its headlights on parked in what he described as a "pull off" adjacent to the westbound lane of travel, but facing east. The car was at least eight feet from the edge of the roadway. It was a dark, cold night and there was snow on the ground, but the road markings were visible. The trooper stopped to see if anything was wrong. When he spoke to the occupant of the vehicle, he could smell marijuana and then arrested the defendant. The defendant attempted to suppress the evidence. The state argued that this was part of the community caretaking function of the police. The Court disagreed and ruled in favor of the defendant.

Michael A. Delaney, attorney general (Karin M. Eckel, assistant attorney general, on the brief and orally), for the state. Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.


In the matter of the State of New Hampshire v. David Orde
No. 2009-737
November 30, 2010
Reversed and remanded.

  • Whether the trial court erred in denying the defendant’s motion to suppress the evidence collected from the officer’s warrantless presence on the deck.
The Court found that the defendant had a reasonable expectation of privacy on the deck behind his house as it was protected and reversed the trial court’s decision.

Michael A. Delaney, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the state. Denner Pellegrino of Boston, MA (Jeffrey A. Denner & a. on the brief, and Bruce D. Levin orally), and Laurence B. Cote of Boston, on the brief, for the defendant.


The State of New Hampshire v. Timothy Spade
No. 2009-624
November 30, 2010
Reversed and remanded.

  • Whether the trial court erred in dismissing the state’s indictments against the defendant where the defendant was charged with six counts of RSA 642:9,II.
Here the Court ruled in favor of the state, reversed the trial judge’s decision and remanded for further proceedings. In conclusion, the Court held that to be guilty of aggravated assault, the inmate must have thrown or expelled an enumerated bodily substance, causing or attempting to cause, the employee alarm.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.


Priscilla Tyler v. Hannaford Brothers d/b/a Hannaford Food & Drug
No. 2009-455
November 30, 2010
Reversed and remanded.

  • In applying collateral estoppel whether the trial court: (1) erred as a matter of law; (2) nullified her right to pursue damages under RSA 281-A:13 (2010); (3) violated her right to a jury trial under Part I, Article 20 of the NH Constitution; (4) violated her right to recourse in the law for her personal injuries under Part I, Article 14 of the NH Constitution; and (5) violated her right to due process under Part I, Article 15 of the NH Constitution.
The Court found that the plaintiff’s action was not barred by the doctrine of collateral estoppel, that it need not decide the other issues and reversed the trial court’s ruling and remanded for further proceedings.

Kevin M. Leach, of Bow, on the brief, and Legal Resource Strategies of Manchester (Nancy A. DeAngelis on the brief and orally), for the plaintiff. Wadleigh, Starr & Peters of Manchester (Michael R. Mortimer and Gregory M. Sargent on the brief, and Mr. Mortimer orally), for the defendant.


In Re Alex C.
No. 2009-299
November 30, 2010
Affirmed.

  • Whether the trial court erred in finding that multiple AIM messages to the victim constituted "repeated communications" within the meaning of RSA 644:4, I(b).
This case, being the first of its kind in New Hampshire, the Court took an interesting approach to instant messaging. In short, the Court viewed instant messaging as the direct technological progeny of e-mailing. As such, the Court considers the process of instant messaging, not necessarily as some monolithic entity – a single conversation, but as a series of discrete electronic messages between two or more individuals. As in the case of e-mail, the sender composes each instant message on a computer keyboard; the "send" physically triggers each instant message to be sent by one computer and received by another via the Internet; and the recipient may then read each instant message on a computer screen.

While sending an instant message may invite a response, and may even initiate an instant messaging conversation, it does not necessarily have to do so. In that sense, we believe than an instant message is similar, not to a telephone conversation, but to a a telephone call that reaches an answering machine instead of the ear of the telephone call’s intended recipient. In both cases, a message has been imparted. As a result, the decision of the trial court was affirmed.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the juvenile. Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.



Christopher J. Somma


Christopher J. Somma received his BA in Religion and Sociology from Bates College and a juris doctorate from the University of NH. He is currently employed at Ford & Weaver in Portsmouth and concentrates his practice in bankruptcy, bankruptcy litigation, and commercial law.


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