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Bar News - May 13, 2011

NH Supreme Court At-a-Glance - April 2011


Civil Law/Civil Procedure

B.V. Brooks & a. v. Trustees of Dartmouth College
No. 2010-179
April 12, 2011
  • Whether the trial court erred in ruling petitioners’ claims were barred by the doctrine of res judicata and that they lacked standing to bring remaining claims.
Petitioners, seven Dartmouth College alumni and members of the Association of Alumni of Dartmouth College ("Association"), brought suit against respondents Trustees of Dartmouth College ("Trustees" or "respondents") for breach of contract, breach of implied-in-fact contract and promissory estoppel based on the Trustees’ vote to expand the size of the board by adding more board members nominated by the Trustees rather than the Association. petitioners claimed that the Trustees’ vote, which failed to maintain an equal number of trustees nominated by the Association ("Alumni Trustees") on the board of trustees as trustees nominated by the board of trustees ("Charter Trustees"), breached an express or implied-in-fact contract to maintain parity between the Charter Trustees and the Alumni Trustees; petitioners also claimed they were third-party beneficiaries to an agreement between the Association and the Trustees from 1891 after Association and Trustees informally agreed to a method for the election of board members, where five were to be nominated by the Trustees and five by the association ("1891 Agreement"). The petitioners’ promissory estoppel claim alleged that the Trustees were barred from eliminating parity.

The respondents moved for summary judgment, arguing dismissal was warranted on res judicata grounds, as the Association had previously sued the Trustees for breach of contract, breach of implied-in-fact contract and promissory estoppel on the same basis and had ultimately entered into a stipulation with the Trustees to dismiss the lawsuit with prejudice. The respondents also argued that the petitioners lacked standing to sue to enforce the 1891 Agreement. The Superior Court agreed that the petitioners’ breach of contract and promissory estoppel claims were barred by res judicata based on their status as Association members and that petitioners had no standing as third-party beneficiaries of the 1981 Agreement.

On appeal, the petitioners argued that res judicata was inapplicable because they were not party to the Association’s lawsuit and were not in privity with the Association, that the same causes of action were not before the court, and that the stipulation entered into by the Association and the Trustees could not be considered a final judgment as it was a product of collusion, the Association entered into it without authority, and because it fails as a contract because the Association received no consideration.

The Court held that while the petitioners were not parties to the Association’s lawsuit against the Trustees, their claims were still barred by the doctrine of res judicata under an exception to the general rule that res judicata is inapplicable to nonparties to the original judgment, where the petitioners were members of the Association and the Association (through its executive committee) had the authority to participate as a party on behalf of the Association’s members. The Court also held that the petitioners’ claims were the "same" as the claims brought previously by the Association and that the Association’s voluntary dismissal of its lawsuit with prejudice constituted a final judgment on the merits. The Court also held that the petitioners were not third-party beneficiaries to the 1891 Agreement as there was nothing in the record to demonstrate that the parties to the 1891 Agreement intended to confer upon individual alumnus the right to enforce it.

Eugene M. Van Loan, III, Wadleigh, Starr & Peters, Manchester, for the petitioners; Richard C. Pepperman, II, Sullivan & Cromwell, New York, for respondents.

Deutsche Bank National Trust Company v. James Kevlik & a.
No. 2010-249
April 28, 2011
  • Whether the trial court properly granted judgment to the plaintiff where it admitted and relied upon unauthenticated documents to show possession and ownerships by plaintiff in an action for possession of real estate.
The plaintiff filed a landlord and tenant writ alleging that it was entitled to possession of property, that the defendants had been provided with an eviction notice, and the defendants had refused to deliver the property. In the eviction notice, the plaintiff alleged that it was the current owner of the property as a result of foreclosure, which foreclosure sale was held at the property. The defendants filed a motion to dismiss asserting that the foreclosure sale had never taken place. At the hearing, the plaintiff’s attorney proffered copies of the landlord tenant writ with an affidavit of ownership, a foreclosure deed with an attached affidavit and a mortgage assignment, all of which the trial court allowed into evidence over defendants’ objections.

The foreclosure and assignment documents were not certified and the attorney appearing at the hearing could not attest to their authenticity. The trial court ruled against the defendants and told them that they would have to pay recognizance to the plaintiff pending their entry of an action in superior court. The defendants told the court that they did not want to pursue the matter in superior court, but requested a continuance to get counsel. The court denied their request and took the matter under advisement. Ultimately, the court entered an order in favor of the plaintiff. The defendants moved for reconsideration, which was denied by the court.

On appeal, the defendants argued that the plaintiff failed to carry its burden of demonstrating that it was the owner of the property and, thus, was not entitled to judgment. The Court agreed, finding that the documents submitted by the plaintiff to show ownership were insufficient because they were based on incompetent and unauthenticated hearsay. In addition, the affidavit submitted with the writ was not signed under oath. Thus, it was error for the trial court to admit and rely on these documents and the Court reversed the judgment for the plaintiff.

J&M Lumber and Construction Company, Inc. v. J. Robert Smyjunas, Jr. & a.
Nos. 2010-259 and 2010-356
April 14, 2011
  • Whether the trial court erred by failing to dismiss J&M Lumber and Construction Company, Inc.’s ("J&M") claims for improper dissolution and unjust enrichment where claims were brought six years after Smyjunas claims it knew, or should have known, based on his deposition testimony that he had improperly dissolved his company and had received its assets unjustly.
  • Whether trial court erred when it granted J&M’s motion in limine to preclude Smyjunas from relitigating whether he had notice of J&M’s claim against his company before he dissolved it.
  • Whether the trial court erred when it allowed J&M to admit, into evidence, Smyjunas’s account transcripts, where he claimed a substantial differential in income between 1998 and 1999 was more prejudicial than probative.
  • Whether the trial court erred when it partially denied Smyjunas’s motion in limine to exclude J&M’s expert’s testimony where he claimed the disclosure "failed to provide specifics" and did not comply with RSA 516:29-b, it denied Smyjunas’s motion to dismiss J&M’s breach of implied covenant of good faith and fair dealing claim where J&M had not alleged a contractual relationship with any of the defendants
  • Whether trial court erred when it failed to award J&M prejudgment interest from the filing of its initial action in equity in 2000 or post-judgment interest from the trial court’s 2005 order that Smyjunas’s company pay J&M $110,007.01 in attorney’s fees and costs
In 2000, J&M brought an equity action against Gorham Supermarket, LLC ("Gorham Supermarket"), among others, to enforce J&M’s easement rights associated with land in Gorham. In 2003, the Superior Court ordered Gorham Supermarket to pay J&M’s attorney’s fees and costs. Gorham Supermarket appealed, and the Supreme Court upheld its decision in a 2004 order. In 2005, the trial court calculated the total amount of attorney’s fees and costs owed to J&M. Gorham Supermarket never paid. In 2008, J&M brought an action against Smyjunas, Gorham Supermarket, Bitsy Realty, and Tolle Road Partners, Inc., seeking to collect the attorney’s fees and costs from the 2005 award. J&M alleged that Smyjunas, the sole owner of the entities that owned Gorham Supermarket, had improperly dissolved its assets to deplete them and avoid liability. During the trial, all defendants were voluntarily dismissed except Smyjunas and a jury verdict was rendered in favor of J&M in the amount of the 2005 award of attorneys’ fees. Thereafter J&M filed a motion for prejudgment interest dating either from its 2000 equity action or the trial court’s 2005 order. The trial court awarded J&M prejudgment interest running only from the date of its 2008 writ. Both parties appealed.

On appeal, the Court addressed various issues raised by Smyjunas with respect to the Court’s orders, including that J&M’s action was untimely, that he should have been allowed to relitigate the underlying issue of whether he had notice of J&M’s easement, and whether certain evidence as to his and his wife’s income should have been admissible; the Court also reviewed J&M’s claim that the Court erred in limiting its prejudgment interest award to the filing of the proceeding in 2008. The Court affirmed the lower court’s rulings, holding that J&M’s action was timely, as it would not have had standing to pursue its claims against Smyjunas until the 2005 award of attorneys’ fees, that even if the Court erred by allowing a jury instruction that stated that Court had already found and ruled that Smyjunas had noticed of the underlying easement, the error was harmless, and that the trial court reasonably found that the evidence of Smyjunas’ income had a tendency to show that Gorham Supermarket substantially depleted its assets soon after J&M notified Smyjunas about its easement claim. The Court also considered whether the generality of J&M’s expert disclosure was sufficient under the law and found that Smyjunas had sufficient notice of the expert’s opinions and an opportunity conduct discovery. The Court also held that while the trial court may have committed error by allowing a claim for and instructing the jury on a claim for implied covenant of good faith and fair dealing where there was no contract between the parties, the errors were harmless, as they did not affect the outcome of the trial. Finally, the Court ruled that if J&M had sought interest from the earlier actions, it had an obligation to plead and prove its entitlement to that interest. As it had not, the Court could only award prejudgment interest from the filing of the instant action.

Jack P. Crisp, Jr., the Crisp Law Firm, Concord, for plaintiff; William B. Pribis, Cleveland, Waters and Bass, Concord, for defendant.

Dean J. Waterfield v. Meredith Corporation & a.
No. 2009-828
April 14, 2011
Affirmed in part, reversed in part, and remanded.
  • Whether trial court erred when it granted summary judgment in favor of the defendants, based on plaintiff’s claim that the trial court improperly applied choice-of-law factors to determine that Connecticut’s two year statute of limitation applied to plaintiff’s defamation action, rather than New Hampshire’s three-year statute of limitation
Plaintiff Dean J. Waterfield was married to Stephanie Waterfield at the time of her death in September 2001. At the time, the two lived in Connecticut, though the plaintiff was incarcerated in Connecticut. After plaintiff’s release, he was appointed administrator of his wife’s estate by a Connecticut probate court. As a consequence of his mismanagement of his wife’s estate, he was removed as administrator and charged with various crimes. Plaintiff was arrested in New Hampshire in August 2003 and extradited to Connecticut. Thereafter, a Connecticut television station ran a news story about the plaintiff’s handling of his wife’s estate. Nearly three years later, plaintiff filed suit in superior court alleging, among other things, that the story defamed him.

Defendants moved for summary judgment on the basis that a Connecticut probate court had already found the contents of the news story to be substantially true and because plaintiff’s action was barred by the Connecticut statute of limitations. The trial court found that the plaintiff was not a New Hampshire resident and that the plaintiff’s cause of action did not arise in this state because the television station’s broadcast did not reach New Hampshire. It applied the choice-of-law factors set forth in Clark v. Clark, 107 N.H. 351, 353-55 (1996), and Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 13 (1988) and determined that Connecticut’s statute of limitations applied and, as a result, plaintiff’s claim was untimely.

On appeal, plaintiff raised sixteen issues around whether the trial court properly applied Keeton in determining that the Connecticut statute of limitations barred his claims. Specifically, he argued that the court erred in finding that he was not domiciled in New Hampshire at the time he filed suit and that the television signal did not reach New Hampshire.

Citing Keeton, the Court stated that when New Hampshire is the forum for a suit in which another state also has an interest, it determines whether the relevant law is procedural or substantive. It stated that it generally applies New Hampshire law to procedural laws and if a law is substantive and conflicts with the laws of another interested state, it conducts a choice of law analysis. Although the Court stated that it generally treats statute of limitations as procedural statute subject to New Hampshire law in cases where either party is a New Hampshire resident or the cause of action arose in New Hampshire, it noted that it had left open the possibility of applying choice-of-law analysis in cases where none of the parties are New Hampshire residents and the cause of action did not arise in New Hampshire.

While the Court found that the plaintiff failed to show a genuine issue of material fact as to whether the cause of action arose in New Hampshire (failed to show publication in New Hampshire), the Court determined that the trial court had erred in looking at the plaintiff’s residency at the time he filed his writ (Connecticut), rather than at the time the cause of action arose. The Court reversed the trial court on this issue and remanded the action to the trial court to determine plaintiff’s residence at the time of the allegedly defamatory broadcast for choice-of-law purposes.

Randy A. Britton, a non-lawyer representative appearing pursuant to Rule 33(2) for plaintiff; James P. Harris and Daniel K. Fink, Sheehan Phinney Bass + Green, Manchester, for the defendants.

Criminal Law

State v. Walter Hutchison, Jr.
No. 2009-795
April 26, 2011
  • Whether the trial court erred in denying defendant Walter Hutchison’s motion to dismiss for insufficient evidence of causation of death.
Kimberly Ernest died on November 6, 2005 after spending approximately fourteen years at the Rockingham County Nursing Home following an attack 1991 by defendant Walter Hutchison, a former boyfriend. Hutchison was convicted of attempted murder for the beating and strangling of Ernest in October 1991. The attack left Ernest with severe damage and she remained in a comatose state until her death. In the days leading up to her death, Ernest exhibited signs of illness and sustained two seizures. She went to the hospital for treatment, where it was found that she had a respiratory infection. Her family decided to treat her only with comfort measures and she died several hours later.

Hutchison was convicted of first-degree murder for the killing of Kimberly Ernest and sentenced to life in prison without the possibility of parole. On appeal, he argued that the trial court erred in denying his motion to dismiss for insufficient evidence of causation of death. Hutchison did not contest that his actions caused Ernest permanent brain injury, but did argue that the admitted risks to her health did not establish the necessary element of legal causation to warrant his criminal conviction for her murder.

The Court found that Ernest had no pre-existing medical condition, that six expert witnesses testified to her brain damage, its cause, and the resultant associated risks, including shortened life span due to immobility and infection, and the deputy chief medical examiner testified that Ernest’s cause of death was caused by Hutchison’s 1991 assault on her. The Court held that this evidence, along with other evidence put forth by the State, was sufficient to permit a rational jury to conclude, beyond a reasonable doubt, that Ernest’s death would not have occurred but for Hutchison’s conduct and that her death was a natural and direct consequence of his conduct.

Michael A. Delaney, attorney general (Susan G. Morrell, senior assistant attorney general) for the State; Lisa Wolford, Concord, for defendant.

State v. Joseph Michaud
No. 2009-741
April 28, 2011
  • Whether the trial court erred in denying defendant Joseph Michaud’s request for a lesser-included offense instruction on simple assault during his trial for felonious sexual assault (RSA 632-A:3, III).
Defendant was convicted of four counts of felonious sexual assault on a girl under the age of thirteen. At close of trial, the court instructed the jury as to the elements of the charged variant of felonious sexual assault. The defendant requested a lesser-included offense instruction for simple assault, which the trial court denied.

On appeal, the defendant argued that all of the elements of simple assault are embraced within the definition of the charged variant of felonious sexual assault and that simple assault is a lesser-included offense of felonious sexual assault; he also argued that the court was required to give the lesser-included offense instruction for simple assault given testimony at trial about incidents of tickling.

The Court held that the trial court did not err in refusing to give the lesser-included simple assault instruction because the elements of simple assault differ from the elements of felonious assault on an individual under the age of 13, under RSA 623-A:3. It found that while simple assault requires "unprivileged physical contact," felonious sexual assault on an individual under the age of 13 does not, as the consent or will of the child is not relevant.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general) for the State; Stephanie Hausman, Concord, for defendant.

State v. Michael Moncada
No. 2010-165
April 28, 2011
  • Whether the trial court erred in finding defendant Michael Moncada competent to stand trial and whether the trial court erred in denying Moncada’s motion to dismiss aggravated felonious sexual assault charges for lack of sufficient evidence that he was a member of the same household.
Moncada was convicted on fourteen charges, including three counts of aggravated felonious sexual assault, ten counts of felonious sexual assault, and one count of bail jumping. The sexual assault charges stemmed from his inappropriate conduct with his girlfriend’s thirteen-year-old daughter. Prior to the trial, the trial court held a competency hearing. Two experts testified. Both agreed that Moncada had certain cognitive deficits; the State’s expert concluded that Moncada was competent to stand trial, but recommended that he have a pair of attorneys defend him so that one could sit by his side and monitor his understandings while the other attorney was speaking.

Moncada’s expert concluded that he was not competent to stand trial, but agreed with the State’s expert’s overall diagnostic assessment. Simply, he felt that the defendant’s inability to follow courtroom proceedings was a great impediment to his competence. Based on the expert witnesses as well as other witnesses, the trial court found Moncada competent to stand trial, as it found that he was able to understand concepts when coupled with concrete explanation and that he had a rational understanding of the proceedings against him and sufficient present ability to consult and assist his lawyer with a reasonable degree of rational understanding. The Court also found that Moncada’s needs could be met by one attorney.

On appeal, Moncada argued that the trial court erred in finding him competent to stand trial, claiming that he failed the first prong of the two-prong test for competency; that he was capable of communicating "meaningfully with his attorney so as to be able to make informed choices regarding trial strategy." Moncada claimed that the uncontroverted expert evidence established that he suffered from receptive and expressive deficits that impaired his ability to sufficiently consult with and assist his lawyer with a reasonable degree of rational understanding. He argued that State’s expert’s opinion that he was competent was conditioned on the appointment of a second defense attorney. The Court disagreed, finding that the expert’s opinion regarding a second attorney had been a "recommendation" and that the trial court had not been faced with "uncontroverted evidence" that Moncada was not competent. As such, the Court deferred to the trial court’s determination that Moncada was competent and did not require a second attorney.

Moncada also argued that there was insufficient evidence to prove that he was a member of the victim’s household, an element of the aggravated felonious sexual assault charges. The Court reviewed the record, which showed that Moncada and his son spent every night in the victim’s home, that Moncada was in an intimate relationship with the victim’s mother and that he helped take care of the kids and the household. The Court found this to be sufficient evidence to support a conclusion that Moncada and the victim were members of the same household.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general), for the State; Pamela E. Phelam, Concord, for the defendant.

State v. John Mwangi
No. 2010-277
April 12, 2011
  • Whether the trial court, in calculating defendant John Mwangi’s pretrial confinement credit on a sentence for a robbery conviction, erroneously allocated a portion of defendant John Mwangi’s incarceration to a prior habitual offender sentence on which he was charged with a parole violation.
Mwangi was convicted of a felony offense of driving while certified as a habitual offender in April 2006. He served time in the New Hampshire State Prison and was paroled in November 2006. On November 11, 2008, Mwangi was arrested for robbery. He was unable to post bail and remained in the custody of the Hillsborough County House of Corrections. A detention order was issued the next day on the basis of the alleged parole violation. Mwangi signed a waiver regarding a preliminary hearing on the parole violation charges. He was transported to New Hampshire State Prison. Mwangi was convicted of robbery on August 11, 2009 and bail was revoked pending sentencing. On September 8, 2009, Mwangi completed serving the habitual offender sentence at the State Prison and was returned to the Hillsborough County House of Corrections. On October 29, 2009, Mwangi was sentenced for the robbery conviction.

At the sentencing hearing, the parties disputed whether the entire period of the Mwangi’s incarceration commencing Nov. 11, 2008, should be counted toward his pretrial confinement credit for the robbery sentence. Ultimately, the trial court only credited two days in Nov. 2008 and the time between Mwangi’s completion of his habitual offender sentence and his sentencing on the robbery conviction. The court allocated the time Mwangi spent at the State Prison to time served on his habitual offender sentencing.

On appeal, Mwangi argued that he had been in custody on the robbery charge from the date of his arrest on Nov. 11, 2008, until his sentencing hearing and was not serving any other sentence of confinement during that time. He argued that he was never confined for the parole violation because he was not afforded a final revocation hearing and did not receive a sentence on that violation and that allocating this time to his habitual offender sentence effectively imposed a sentence for the parole violation in violation of his federal and state due process rights.

The Court rejected Mwangi’s argument, holding that the trial court did not deprive Mwangi of due process under the state or federal constitutions after finding that Mwangi waived his statutory right to a preliminary hearing, that revocation of his parole was mandatory due to his robbery conviction, that it was unnecessary to conduct a revocation hearing after his felony conviction to ensure that “the person who was convicted of the felony is the same person who was on parole,” and that “[r]equiring the parole board to convene and conduct an informal hearing in this case would compel unnecessary tasks that would impose fiscal and administrative burdens on the state.”

David M. Rothstein, Concord, for the defendant; Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State.

State v. Christopher Newcomb
No. 2010-059
April 12, 2011
Reversed and remanded.
  • Whether the trial court erred in denying defendant’s motion to suppress evidence obtained as a result of his arrest for criminal trespass and the subsequent inventory search of his rented U-Haul truck.
On February 25, 2008, it was reported to Kensington, NH police that defendant and another man were observed with a parked truck and a car outside of a residence in Kensington. Captain Jeremiah O’Sullivan responded to the report. He interviewed the two men, and the men’s appearance was nervous. When O’Sullivan called the homeowners, the homeowners told O’Sullivan that neither man was supposed to be on the property and asked O’Sullivan to check the house. O’Sullivan arrested both men for criminal trespass and impounded the U-Haul and the car.

O’Sullivan conducted an inventory search of both vehicles. During the inventory search, O’Sullivan unlocked the storage space of the U-Haul with a key found in the defendant’s possession. Inside the storage area of the truck, O’Sullivan found building materials and copper tubes, pipes and wire. He ended the search and applied for a search warrant. As part of his affidavit to obtain the warrant, he used information relative to what he found during the inventory search.

Defendant filed two motions to suppress, both of which challenged the admissibility of evidence found in the U-Haul. Specifically, defendant argued that he was arrested without probable cause and that the search of the U-Haul was not a proper inventory search; he also argued that the supporting affidavit did not establish probable cause to obtain a search warrant. The trial court conducted a consolidated hearing on the motions and denied them. The defendant was convicted by the trial court.

On appeal, the defendant argued that the police lacked probable cause to arrest him for criminal trespass as there was no probable cause that he “knew he was not allowed to be on the premises.” He also alleged that the inventory search of his rented U-Haul truck violated the federal and state constitutions because the Kensington Police inventory search policy did not authorize the search of a padlocked U-Haul truck.

The Court held that O’Sullivan had probable cause to arrest the defendant for criminal trespass. The Court agreed with the defendant, however, that the search of the padlocked portion of the U-Haul during the inventory search did not conform to the Kensington Police inventory search policy. As the search was not conducted according to the standardized procedures of the Kensington Police Department, it was not proper and the evidence obtained as a result of the illegal search could not be used to establish probable cause for the search warrant. The Court remanded the issue of whether the remaining information in the search warrant established probable cause.

Theodore Lothstein, Lothstein Law Office, Concord, for defendant. Michael A. Delaney, attorney general (Jacqueline J. Rompre, assistant attorney general) for the State.

Constitutional Law

State Employees’ Association of New Hampshire & a.
No. 2010-271
April 14, 2011
  • Whether the Superior Court’s order denying plaintiffs’ request to declare RSA 100-A:54 unconstitutional and granting summary judgment in favor of the defendants was error.
The State provides pensions to eligible retired state employees through the New Hampshire Retirement System (NHRS). The funds held by the NHRS are to be used solely to pay the retirement allowances of NHRS members. The State also provides medical and surgical benefits to state employees and their spouses and dependents, and eligible retirees and their spouses through a separate program and statutory scheme. Prior to 1992, the State paid the full health care premium for eligible retired state employees, subject to funding by the legislature. In 1991, the legislature amended the statute to provide that the state shall pay a premium, though in practice, the state continued to pay the full cost. In July 2009, the legislature enacted RSA 100-A:54, II, which required the NHRS to deduct a premium contribution from the monthly retirement allowance of retired state employees (under the age of 65 years) receiving medical and surgical benefits.

Subsequently, the plaintiffs brought a declaratory judgment action in Superior Court on behalf of themselves and similarly situated individuals against the defendants. They sought declaration that RSA 100-A:54, III was unconstitutional under the Contract Clauses of the New Hampshire and the United States Constitutions and Part I, Article 36-a of the New Hampshire Constitution, and to permanently enjoin NHRS from deducting health care premiums from their pension benefits. The parties filed cross-motions for summary judgment. The trial court granted defendants’ motions and denied the plaintiffs’ motion, ruling that although the plaintiffs have a vested right to receive their full pensions and RSA 100-A:54, III impairs that right, the impairment is not substantial. The court further found that RSA 100-A:54 does not violate RSA 100-A:26-a (2001) or Part I, Article 35-a.

On appeal, the Court affirmed, finding that RSA 100-A:54, III neither substantially impaired the retirees’ right to receive their full pension benefits or diverted for another purpose, as the State did not actually reduce the value of the retirees pension or its payment obligations to the retirees, as the retirees would be obligated to pay the premium, regardless. The Court also found that RSA 100-A:54, III did not impair or conflict with RSA 100-A:26-a, as both provisions were exceptions to the anti-alienation statute provided for by the legislature.

Stephen M. Pincus, Stember Feinstein Doyle Payne & Cordes, of Pittsburgh, PA, for plaintiffs. Michael A. Delaney, attorney general (Danielle L. Pacik, assistant attorney general) for State of New Hampshire. Andrew R. Schulman, Getman, Stacey, Shulthess & Steere, Bedford, for defendants New Hampshire Retirement System and Dr. Lisa Shapiro. David R. Connel, Concord, for the Local Government Center, as amicus curiae.

Family Law

Eric Lee Knight v. Cheryl Ann Maher
No. 2010-290
April 14, 2011
  • Whether there was sufficient evidence to support the trial court’s findings that the defendant committed one of the acts enumerated in RSA chapter 173-B, and that this conduct constituted a credible threat to the plaintiff’s safety.
Plaintiff Eric Lee Knight and defendant Cheryl Ann Maher are former spouses who have three children together. Plaintiff has primary residential responsibility for the parties’ children and defendant has visitation rights. plaintiff filed a domestic violence petition seeking an order of protection from defendant after defendant allegedly sent threatening and harassing e-mails to him, made false accusations against him in the local and national news with the intent to harm him personally and professionally, and filed false reports against him with the police departments, and the New Hampshire Board of Medicine, as well as the New Hampshire Division for Children, Youth, and Families. The plaintiff alleged that the defendant’s mental state and the individuals with whom she socialized caused him concern for the safety of his person and his property and that he had concerns about the financial impact defendant’s actions could have upon him. The trial court found that plaintiff had reasonable concern, warranting court intervention and granted him an order or protection.

On appeal, the defendant argues that the conduct and harassment described by plaintiff did not meet the requirements of RSA chapter 173-B and RSA 644:4 (Supp. 2010). The Court agreed, found that, while “there may have been substantial evidence that the defendant’s conduct negatively affected the plaintiff’s emotional or financial well-being at the time he filed his domestic violence petition, there was insufficient evidence to support a finding that the defendant represented an ongoing, credible threat to the plaintiff’s physical safety, and that he was therefore in need of protection.” Accordingly, the Court held that the trial court erred in entering a domestic violence protective order against the defendant.

Eric Lee Knight, pro se; Cheryl Ann Maher, pro se.


Progressive Northern Insurance Company v. Argonaut Insurance Company & a.
No. 2010-370
April 26, 2011
  • Whether the trial court erred in denying Argonaut Insurance Company’s (“Argonaut”) motion for summary judgment and granting judgment to Craig Kelly and partial summary judgment to Progressive Northern Insurance Company (“Progressive”).
Craig Kelly left his car for service at Tom’s Auto Sales (“Tom’s”), an establishment owned and operated by his parents. Tom’s loaned Kelly a car to use while his car was being serviced. Subsequently, Kelly was in a car accident while driving the car loaned to him. Kelly had a personal automobile insurance policy issued by Progressive with liability limits of $100,000 per person. Tom’s had a garage insurance policy issued by Argonaut with liability insurance limits of $25,000 and $750,000 depending on the circumstances. Argonaut investigated the claim, but determined Kelly’s use was personal and that he was not a scheduled driver on the policy and limited his coverage to $25,000; Argonaut identified Progressive as the primary insurer. Progressive sued Argonaut asserting that Argonaut must defend and indemnify Kelly under Argonaut’s $750,000 policy limit. Both insurers moved for summary judgment. The trial court concluded that Argonaut was obligated to provide primary liability coverage up to $750,000 and that Progressive’s policy was to provide excess coverage. The trial court also ruled that Progressive was to pay its pro rata share of defense costs. Argonaut appealed this decision.

On appeal, the Court reviewed the language of the policies in light of the facts of the case and found that Kelly’s use of the vehicle fell within the scope of Argonaut’s $750,000 coverage. It also found Argonaut to be the primary insurance as its policy stated that it would be primary insurance unless other coverage was provided on the same basis, which Progressive’s coverage did not provide.

Gregory M. Eaton, Primmer Piper Eggleston & Cramer, Littleton, for Argonaut Insurance Company; Mark L. Mallory, Mallory & Friedman, Concord, for Craig Kelly; Gordon A. Rehnorg, Jr., Wiggin & Nourie, Manchester, for Progressive Northern Insurance Co.; Arthur W. Perkins, A.W. Perkins Law Offices, Concord, for Martin and Linda Morasse.

Trusts and Estates

In re Estate of Timothy M. Donovan
No. 2010-297
April 28, 2011
  • Whether the trial court erred when it denied petitioners’ (the Donovan Family) summary judgment motion and granted the summary judgment motion of the respondent Cathy C. Carter and ruled that the Donovan Family was not entitled to a share of the proceeds from the sale of certain stock.
Decedent, Timothy M. Donovan, died in June 2009. His will provided that his intangible personal property, including bank accounts, stocks, mutual funds, and like, but excluding shares in Optimum Manufacturing, would go to Carter. The remainder of his estate, including the specified shares of stock or interests in Optimum Manufacturing was to go to a trust. The trust documents specified a distribution scheme for the net proceeds from the sale of the assets of Optimum Manufacturing to specific members of the Donovan family. The trustee was to apportion the balance of the principal and accumulated income of said trust estate, or the remaining principal and accumulated income of said trust estate, to Carter.

Decedent sold all of his stock in Optimum Manufacturing and certain other Optimum Manufacturing assets ten months before he died. Following his death, the Donovan Family filed a petition seeking a declaration that the proceeds from the sale of the decedent’s Optimum Manufacturing stock pass to the trust upon his death. The parties filed motions for summary judgment. While the Donovan Family argued that the proceeds from the decedent’s sale of his Optimum Manufacturing stock passed to the trust upon his death, the Court disagreed.

The Court found that because the will’s plain terms stated that the only intangible property that did not pass to the respondent was the decedent’s Optimum Manufacturing stock and that the grant of the Optimum Manufacturing stock to the trust was redeemed when he sold it prior to his death, neither the Optimum Manufacturing stock nor the proceeds from the sale thereof passed to the trust.

John E. Laboe, Laboe Associates, Concord for petitioners. Andru Volinksy, Bernstein Shur, Manchester, for the respondent.

Real Property/Zoning

1808 Corporation v. Town of New Ipswich
No. 2010-201
April 26, 2011
  • Whether the trial court erred in upholding the decision of the Town’s zoning board of adjustments, which upheld the planning board’s decision to defer reviewing petitioner’s plans to expand its office space to allow petitioner to pursue Zoning Board approvals.
The petitioner owns a 1.4 acre lot in New Ipswich, upon which there are two structures. In 1998, the petitioner requested a special exception to a Town zoning ordinance to allow an office building in an area zoned as Village District II. Under the zoning ordinance, office buildings are allowed only if the building’s foundation does not exceed 1,500 square feet. Petitioner’s building was 7,275 square feet and the petitioner sought a variance from the requirement. During the meeting at which the petitioner’s applications were discussed, the petitioner represented that the portion of the building to be used for office space would only be 3,700 square feet and the remainder of the building would be storage. The petitioner’s request for a variance and special exception were granted.

In January 2008, the petitioner applied to the planning board for site plan review, which included plans showing that it now intended to use the back part of the building for additional office space. The petitioner argued that expanding the office space into the remainder of the building did not require further ZBA approval, but was a reasonable expansion of an existing nonconforming use. The planning board voted to defer its consideration of whether to accept the plan while the petitioner pursued ZBA approvals. The petitioner appealed this determination to the ZBA, which denied the petitioner’s appeal. The petitioner filed a motion for rehearing and then appealed to the Superior Court. The Superior Court upheld the ZBA’s decisions.

On appeal, the petitioners argued that it did not need to obtain ZBA approvals before proceeding with its plan to use additional space for office space because the expansion of the office space was within the scope of the 1998 variance and/or that the expansion represents a permissible expansion of nonconforming use. The Court rejected both these arguments. The Court found evidence to support the ZBA’s determination that the 1998 variance was limited because it was granted on the basis of the representations that only a portion of the building would be used as office space.

The Court also held that the ZBA was correct in not applying the doctrine of expansion of nonconforming uses to the petitioner’s plan to use the additional building space as office space as the use was allowed by special exception and was not a “nonconforming use.” Moreover, the Court found that the 1998 variance was an area variance, rather than a use variance. As a result, the law of the expansion of nonconforming uses did not apply to the case and the Court affirmed the trial court’s decision to uphold the ZBA and planning board determinations.

Gregory E. Michael, Bernstein Shur, Manchester for the petitioner. Beth R. Fernald, Bradley & Faulkner, Keene, for the respondent.

Golf Course Investors of NH, LLC v. Town of Jaffrey
No. 2010-167
April 12, 2011
  • Whether the trial court erred in ruling that the residents lacked standing to appeal the planning board’s decisions granting major subdivision and site plan approvals to Golf Investors of NH (“CGI”).
CGI applied for and obtained approval to subdivide a parcel of land into two lots and then applied for a major subdivision application, seeking to convert a building on one of the two lots into a four-unit condominium. The planning board voted that a special exception was not required and accepted CGI’s major subdivision and site plan applications. A public hearing was held and the planning board approved the applications with conditions. Subsequently, seven residents appealed the planning board’s decision to the ZBA, arguing that the planning board had erred in interpreting the zoning regulations regarding the lot size required for the major subdivision and in deciding that the plan did not need a special exception. The residents did object to the proposed use, but wanted CGI to make the plot of land larger. The ZBA held a public hearing on the residents’ appeal and CGI objected that the residents did not have standing. The ZBA voted that the residents were “aggrieved” and granted the appeal. CGI unsuccessfully sought a rehearing from the ZBA and appealed to the Superior Court. The trial court held that the residents lacked standing to bring their appeal before the ZBA and vacated the ZBA’s decision granting the appeal and reversing the planning board. The Town appealed.

The sole issue on appeal was whether the residents had standing to appeal the planning board’s owner. The Court found that they did not. After conducting an analysis as to whether the residents were “aggrieved” by the planning board decision, including reviewing factors outlined by Weeks Restaurant Corp. v. City of Dover, 119 N.H. 541, 544-45 (1979). The Court found that the record did not evidence that the project would result in direct, definite injury to the residents who appealed and concluded that the Town failed to demonstrate that the trial court’s decision was unsupported or legally erroneous.

William S. Gannon, William S. Gannon, Manchester, for Golf Course Investors of NH. Kelly E. Down, Bragdon & Berkson, Keene, for the Town of Jaffrey and Town of Jaffrey Zoning Board of Adjustment.

Right-to-Know Law

ATV Watch & a. v. New Hampshire Department of Transportation
No. 2009-788
April 26, 2011
  • The issue on appeal included various rulings of the trial court as to petitioners’ action for declaratory and injunctive relief seeking disclosure from the New Hampshire Department of Transportation (“DOT”), including the timeliness and adequacy of the DOT’s response to petitioners’ request under RSA 91-A.
In February 2007, Andrew Walters, one of the petitioners, and the director of ATV Watch, contacted the DOT regarding an inquiry by ATV Watch to the Federal Highway Administration (FHWA) regarding federal laws related to the motorized use of the rails trails purchased by the state, using federal funds. He specifically asked whether the State had information contrary to the conclusions that federal law prohibited the use of motorized vehicles on such trails. The DOT responded stating that this was an issue the DOT was looking at with FHWA and the Department of Resources and Economic Development (DRED) and that once there was a tentative resolution, Walters would be informed.

In the months following, the petitioners followed up with requests for additional information, including a formal request under 91-A for governmental records related to these issues. The DOT responded within six days, stating that they were assembling the information, but did not expect to have the records available until September. Following that response, the petitioners made additional requests and asserted that the DOT’s delay in disclosing the documents was unlawful. The DOT responded by offering to make the portions of materials that had been assembled available and also informed petitioners that certain preliminary draft correspondences, certain attorney/client e-mail communications, would not be released and certain documents would be redacted for privileged communications and personal notes pursuant to exceptions under 91-A.

Petitioners took issue with these decisions and when DOT did not change its position, petitioners filed a petition for declaratory judgment, injunctive relief, fees, costs and sanctions, arguing that the DOT’s response had not been adequate and that various documents had been improperly withheld on the basis of exceptions to 91-A.. The trial court reviewed the documents withheld and determined that with the exception of one e-mail chain, the documents had been properly withheld. The petitioners also sought attorneys’ fees, which was also declined by the trial court on the basis that for much of the period for which attorneys’ fees were sought, the petitioners were unrepresented.

On appeal, the Court used standards from the federal Freedom of Information Act to review the DOT’s efforts and response to petitioners’ request. The Court found for the DOT on all of petitioners’ objections, including finding that the DOT had conducted an adequate search of its records in response to the petitioners’ request and that the DOT’s response was timely. The Court also held that the DOT was not required to do more than inform the petitioners of its decision to withhold documents and the basis for doing so. The Court specifically declined to find that the DOT had an obligation to create a Vaughn index in response to the petitioners’ initial request. Finally, the Court held that the exception under 91-A for “preliminary drafts, notes and memoranda and other documents in their final form and not disclosed” was broadly applicable to pre-decisional agency communications, rather than limited to the early stage in the drafting process and that disclosing draft documents to another agency did not render them unprotected from disclosure. The Court also found that petitioners had not established grounds for assessment of counsel fees.

Joshua L. Gordon, Law Office of Joshua L. Gordon, Concord, for petitioners. Michael A. Delaney, attorney general (Edith L. Pacillo, assistant attorney general, and David M. Hilts, assistant attorney general) for the State.

Hampton Police Association, Inc. v. Town of Hampton
No. 2010-323
April 28, 2011
Affirmed in part, reversed in part.
  • Whether the trial court erroneously ordered Town counsel to prepare a revised invoice listing entries devoted only to a particular matter; and whether it erroneously failed to file that the narrative descriptions contained in the original and unrevised invoices were “confidential” under the Right-to-Know Law because they were subject to attorney client privilege.
In September 2009, counsel for the Hampton Police Association (“Association”) requested “copies of each and every invoice from any and all Attorneys who have represented the Town or given advice regarding the so-called Probationary Employees’ grievance and subsequent Arbitration” as well as “the same information with regard to the Petition to Enforce the Arbitrator’s Award.” The Town advised the Association that the invoices contained confidential billing narratives protected by the attorney-client privilege, which are excepted under the Right-to-Know law. In addition, the Town claimed that only some of the invoices contained entries solely dealing with the issues requested; the other entries addressed a variety of legal matters not limited to the dispute in question. The parties were unable to resolve their dispute and later that month, the Association brought an action for injunctive relief asking the Court to order the Town to produce the requested information.

Following an in camera review of the invoices, the trial court ruled that the Association was entitled to receive copies of bills that reflect simply the work done on the matters at issue. The Court ordered the Town to provide the Association the entries for the related matters and ordered the Town’s counsel to review the remaining entries, approximate how much time was related to the matters between the Town and the Association and forward a revised bill to the Association listing the general subject matter and amount approximated for services. After Town’s counsel prepared revised invoices that contained detailed narratives, Town objected to providing them on the basis that the narratives were attorney-client privileged. The trial court denied the Town’s request for relief and provided the invoices to the Association.

On appeal, the Court found that the trial court had erred when it required the Town, through its agent, to create a revised invoice for submission to the Association, as the Right-to-Know law does not require that the Town create an entirely new document that would provide the Association with the requested information. The Court, however, also found that the trial court did not err in concluding that the Town failed to meet its burden of proving that the narrative descriptions were subject to the attorney-client privilege. While the Court held that the attorney-client privilege may apply to information in billing records where the narrative reveals motives, strategy, or other privileged communications, it declined to make a bright-line ruling that invoice narratives are generally privileged and found that the Town had not specifically identified the narratives it claimed to be privileged.

J. Joseph McKittrick, McKittrick Law Offices, North Hampton, for the petitioner. Mark S. Gearreald, Hampton, for the respondent. Paul G. Sanderson, Concord, for the Local Government Center, as amicus curiae.

Laurel A. Van Buskirk

Laurel A. Van Buskirk is with the firm of Devine, Millimet & Branch in Manchester, where she is a member of the Labor, Employment and Employee Benefits Practice Group. She has been a member of the NH Bar since 2003.

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