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Bar News - July 15, 2011


NH Supreme Court At-a-Glance - June 2011

By:

Administrative Law
(Appeal from the Board of Auctioneers)

Appeal of Harold French.
No. 2010-535
June 30, 2011
Affirmed
  • Whether the Board of Auctioneers (Board) exceeded its authority by sanctioning the Petitioner for a violation of RSA 358-G:2 (collusive bidding).
French is an auctioneer who has been licensed by the Board since 1976. At an auction run by another auctioneer held in December 2009, French registered as a bidder under his own name. One of the auction items was a painting, for which the seller set a $10,000 reserve. However, the website advertising the auction listed the painting as without reserve. Prior to the auction, French discussed with the auctioneer the issue regarding the painting and the reserve and the auctioneer requested that French bid on the painting if the reserve price was not met. When the bidding price reached $9,000, French bid $9,500 for the painting, which was the highest bid. At the time he bid, French had no intent to actually purchase the painting. The seller, believing he had waived the reserve by gesture during the bidding, filed a complaint against French and the auctioneer after the seller was told that the painting was not sold, because the reserve was not met. The Board sanctioned French with a letter of reprimand and probation for submitting a fictitious bid at an auction and otherwise engaging in collusive bidding in violation of RSA 358-G:2. French appealed.

The Board is authorized by RSA 311-B:11-a, II to discipline a licensed auctioneer for "[a]ny unprofessional conduct, or dishonorable conduct unworthy of, and affecting the practice of, the profession." On appeal, French contends the Board exceeded its authority because RSA 311-B:11 does not specifically authorize the Board to discipline an auctioneer for a violation of RSA 358-G:2.

The Board found that French engaged in collusive bidding by submitting a bid with no intention of actually purchasing the painting. The Board further found that engaging in collusive bidding was "unprofessional" or "dishonorable" conduct, requiring discipline. The Supreme Court agreed with the findings of the Board and rejected French’s argument that he did not engage in collusive bidding because his bid was below the reserve and did not actually cause or entice anyone else to bid. The Supreme Court also rejected French’s arguments that the Board sanctioned him solely for the misconduct of another or that French’s bid was made on behalf of the seller, which conduct would be authorized by the Uniform Commercial Code and/or the common law.

Richard J. Lehmann, Douglas, Leonard & Garvey, Concord, for the Petitioner. Michael J. Delaney, attorney general, Anthony I. Blenkinsop, senior assistant attorney general, for the Board of Auctioneers.


Constitutional Law

Opinion of the Justices (Requiring Attorney General to Join Lawsuit)
No. 2011-319
June 15, 2011
Finding HB 89 unconstitutional and not falling within the broad grant of authority to the general court
  • Whether the requirement in HB 89 that the attorney general move to have the State of New Hampshire join as a plaintiff in the lawsuit, violates Part I, Article 37 of the New Hampshire constitution,
     
  • Whether the requirement in HB 89 that the attorney general move to have the State of New Hampshire join as a plaintiff in the lawsuit fall within the broad grant of authority to the general court set forth in Part II, Article 5 of the New Hampshire constitution.
     
  • Whether HB 89 as adopted by the House of Representatives and presently pending before the senate violates any other provision of the New Hampshire constitution.
The New Hampshire House of Representatives passed HB 89 which would require the attorney general to move to join the state of New Hampshire as a plaintiff in the lawsuit pending in the federal court captioned State of Florida, et al. v. United States Department of Health and Human Services, et al. ("the lawsuit"). The lawsuit, which at least 27 of the fifty states have joined as plaintiffs, challenges the applicability of portions of a federal law that would require individual New Hampshire citizens to purchase health insurance, even if they did not wish to do so.

With HB 89 pending before the New Hampshire Senate, a question arose of the constitutionality of HB 89, pursuant to Part I, Article 37 of the New Hampshire Constitution, which sets forth the principle of separation of powers. The Senate then requested that the justices of the New Hampshire Supreme Court answer the three questions listed above.

The standard of review requires that the Justices presume the proposed legislation to be constitutional and not declare it invalid except on inescapable grounds.

The answer to the second question depends on the answer to the first question, because the "broad grant of authority" to the general court set forth in Part II, Article 5 makes the legislature’s authority subject to other constitutional provisions, such as the Separation of Powers clause. If the proposed legislation violates any other constitutional provision, it necessarily does not fall within the broad grant of constitutional authority set forth in Part II, Article 5.

The Separation of Powers doctrine is set forth in Part I, Article 37 of the New Hampshire constitution. Under New Hampshire law, the Separation of Powers Clause is violated when one branch of the government usurps an essential power of another. The essential powers of the legislature include the power to make laws, name certain civil officers, and define the duties of the several civil and military officers of the state. On the other hand, the power to execute laws is one of the essential powers of the executive branch. The Justices found that Part II, Article 41, which was most recently amended in 1966, identified the Governor the "supreme executive magistrate," vested the executive power of the state in him, and made the governor responsible for the faithful execution of the laws. The Justices further determined that the 1966 amendment of Part II, Article 41 granted to the executive branch the exclusive power to execute the laws of the state. The execution of the laws included, inter alia, initiating civil actions on behalf of the state. Because HB 89 mandated that the attorney general move to join the pending lawsuit as a plaintiff, HB 89 usurped an essential function of the executive branch and, thus, violated the Separation of Powers Clause.

The Justices answered question 1 in the affirmative, question 2 in the negative, and declined to answer question 3 as a "general inquiry of constitutional infirmity."

William Chapman, Concord, in support of an affirmative answer to the first question presented. Michael A. Delaney, attorney general, et al., in support of an affirmative answer to the first and third questions presented and a negative answer to the second question presented. Richard J. Lehmann, Douglas, Leonard & Garvey, Concord, on behalf of the New Hampshire Senate in support of negative answers to the first and third questions presented and an affirmative answer to the second question presented.

William A. Glahn, III and Patrick H. Taylor, Manchester, on behalf of former members of the Office of the Attorney General of New Hampshire in support of affirmative answers to the first and third questions presented. Jamie Upshur McClammer, Jr., Charlestown, in support of an affirmative answer to the first question presented. Edward C. Mosca, Mosca Law Office, Manchester, on behalf of William O’Brien, Speaker, and David J. Bettencourt, Majority Leader, of the New Hampshire House of Representatives, in support of negative answers to the first and third questions presented and a negative answer to the second question presented. Michael J. Cohen and Thomas G. Bunnell, NH Voices for Health, Concord, in support of an affirmative answer on the first question presented. Gregory J. Vasse, New London, in support of an affirmative answer to the first question presented.



Contract Law

Adelaide V. George d/b/a Homes by George v. Al Hoyt & Sons, Inc.
No. 2010-015
June 2, 2011
Affirmed in part, vacated in part, remanded
  • Whether the trial court improperly applied RSA 358-A, the Consumer Protection Act (CPA) to the facts of the case
     
  • Whether the trial court properly awarded damages for the removal of loam
     
  • Whether the trial jury’s finding that the contract required the construction of a bridge was conclusively against the weight of the evidence.
     
  • Whether the trial court erred in vacating the jury’s verdict on the breach of contract claim and substituting its own award.
     
  • Whether the trial court properly computed damages under the plaintiff’s CPA claim.
     
  • Whether the trial court erred in its award of attorney’s fees.
Plaintiffs are a residential real estate developer and its agent. Plaintiff entered a written contract with the defendant to perform work at a site being developed by Plaintiffs, including building a road. The defendant obtained $10,500 for a deposit on a bridge necessary to complete the road and the development of the property. The defendant disputed whether the contract required them to construct and install the bridge and the defendant ultimately refused to construct and install the bridge. The plaintiffs entered a contract with another company to purchase the bridge, but the bridge could not be completed prior to the deadline required for the installation of the bridge by the plaintiffs’ wetlands permit.

With the bridge not completed, the plaintiffs returned deposits to two prospective purchasers. Without the purchase money, the plaintiffs were unable to pay down the mortgage and the lender called the note. Plaintiffs transferred the property to the lender via a deed in lieu of foreclosure for the amount of $300,000. The plaintiffs then sued the defendants for breach of contract, violation for the CPA, and unlawfully removing loam and other top soils from the property. The defendant counterclaimed that plaintiffs had breached by failing to pay amounts due under the contract and that plaintiffs had been unjustly enriched.

In a bifurcated trial, the jury found for the plaintiffs on all liability claims. The trial court reserved the determination of damages on the CPA claim to itself and a second jury trial was held on damages with respect to the breach of contract and removal of loam claims. Following the trial, the trial court vacated the jury’s $835,000 award on the breach of contract claim, but upheld the jury’s $14,400 award on the unlawful removal of loam claim. The plaintiffs were then awarded $5,000 for attorney’s fees on the CPA claim.

The second jury trial on the breach of contract damages resulted in a $500,000 award to plaintiffs, which the trial court set aside. Instead, the trial court awarded the plaintiffs damages of $56,680, which was comprised of $42,280 as double damages under the CPA for the cost of the bridge and $14,400 for the unlawful removal of loam. Upon the plaintiffs’ motion, the trial court increased its award of attorney’s fees to $25,000.

The Supreme Court rejected the defendant’s claim that the CPA did not apply in this case. The CPA does not preclude an "experienced" business entity from the protections afforded by the CPA. Further, the defendant’s conduct of billing the plaintiffs $10,500 for the deposit on the bridge and failing to remit that sum to the manufacturer of the bridge meets the "rascality" test required by the CPA.

The defendant challenged the award of damages on the unlawful removal of loam claim on the basis of the doctrines of impossibility of performance and commercial frustration. These are contract defenses, however, and the unlawful removal of loam claim was based on trespass, to which the above doctrines do not apply. Finally, the Supreme Court rejected the defendant’s argument that there was insufficient evidence to support the jury’s verdict on the breach of contract claim.

Plaintiffs appeal the damages award, claiming that the jury’s $500,000 award was fully supported by the evidence and should not have been set aside. The Supreme Court found that the $56,680 award by the trial court was an award on the plaintiffs’ CPA and unlawful removal of loam claims, and not a substitute award on the breach of contract claim. The trial court’s findings and rulings on the amount of damages that plaintiffs had proven was contradictory, so the ruling setting aside the verdict was vacated and remanded for a determination whether the record supports an award of damages beyond the lost profits on the lost home sales.

The plaintiffs also allege the trial court erred in its method of computation of damages under the CPA claim. The Supreme Court remanded the computation of damages under the CPA claim because the trial court erred in allowing damages for the entire cost of the bridge, rather than the amount of the bridge deposit. Whether consequential damages are available under the CPA was not addressed by the trial court and that issue was also remanded.

Finally, the plaintiffs argue that the trial court erred in its award of attorney’s fees. They contend they are entitled to attorney’s fees for their CPA claim as well as their common law claims because all claims arise out of a common set of facts. The Supreme Court found the trial court properly exercised its discretion in its award of $25,000 in attorney’s fees to plaintiffs, based on the entirety of the litigation and the plaintiffs’ failure to explain why the award was not reasonable.

Thomas K. MacMillan, MacMillan Law Offices, Bradford, Massachusetts, for the plaintiff. Thea S. Valvanis and Sumner F. Kalman, Sumner F. Kalman, Attorney at Law, Plaistow for the defendant.


Criminal Law

State v. Luis Lopez
No. 2009-872
June 15, 2011
Affirmed
  • Whether the trial court erred in denying the defendant’s motion to dismiss based on sufficiency of the evidence.
The defendant was convicted of one count of felony endangering the welfare of a child and seven misdemeanor counts of endangering the welfare of a child. The defendant lived with the eleven-year-old victim, L.P., L.P.’s mother and the mother’s two young children. L.P. watched the television show "America’s Next Top Model" and wanted to be a model herself. In June 2007, the defendant began taking photographs of L.P. with his cell phone. Some of the photographs were harmless, but others were of L.P. wearing her mother’s clothing and lingerie and some were sexually suggestive. The defendant also asked L.P. one time to take off all her clothes for a picture, but L.P. declined. L.P.’s mother discovered some of the photographs on the defendant’s cell phone and contacted the police. Of the 155 photographs recovered from the defendant’s cell phone and memory cards, 116 were of L.P. and many were objectionable.

The defendant was tried on charges including one count of felony endangering the welfare of a child which alleged that he solicited L.P. "to take off all her clothes for the purpose of creating a visual representation to a pornographic picture." At the close of the State’s case, the defendant moved to dismiss the felony charge for insufficient evidence; the trial court denied the motion and the jury returned a guilty verdict on that charge.

The child endangerment statute, RSA 639:3, III prohibits solicitation of a child under the age of 16 to engage in sexual activity as defined by RSA 649-A:2, III for the purpose of creating a visual representation. The specific sexual activity at issue here is lewd exhibition of the genitals. The legislature has not defined what constitutes lewd exhibition of the genitals and the Supreme Court has not directly addressed the issue. Relying of federal law, the Supreme Court adopted the factors articulated in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).

The State argued that the defendant’s request for a nude picture of L.P. must be viewed in context with all his behavior toward L.P., while the defendant argues that the evidence was sufficient to support the verdict because his request for a nude picture of L.P. did not mention the genitals, or provide any direction in regard to posing. The Supreme Court agreed with the State and held that the evidence was sufficient to prove that the defendant engaged in solicitation and that the object of the solicitation was a "lewd exhibition of the genitals," within the meaning of RSA 649-A:2, III.

Stephanie Hausman, assistant appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general, and Nicholas Cort, assistant attorney general, for the State.


State v. Peter Eaton
No. 2010-140
June 28, 2011
Affirmed in part, reversed in part, vacated in part, and remanded
  • Whether the trial court erred in denying defendant’s pre-trial motion for in camera review of the victim’s counseling records.
     
  • Whether the trial court erred in denying defendant’s pre-trial motion for production of records from the Raymond Police Department.
     
  • Whether the trial court erred in denying defendant’s motion to dismiss for lack of a speedy trial.
     
  • Whether the trial court erred in sentencing the defendant on two indictments alleging alternate theories of liability.
The defendant was convicted of four counts of aggravated felonious sexual assault, one count of felonious sexual assault, and one count of indecent exposure. The defendant allegedly sexually assaulted the victim between the fall of 2003 and June 2005, while he lived with the victim and her family. He was indicted for these assaults in October of 2005 and moved for an in camera review of the victim’s counseling records. The trial court granted the motion and later issued an order stating that the records contained "no discoverable material," and that they would remain under seal. The 2005 charges were nolle prossed in March 2006.

The defendant was re-indicted in October 2008 and again filed a motion for an in camera review of the victim’s counseling records. The superior court denied the motion stating that the defendant had not made the requisite showing under State v. Gagne, 136 N.H. 101 (1992). The Supreme Court affirmed the superior court’s ruling in regard to the victim’s counseling records, if any, prior to July 2005. In regard to the victim’s counseling records generated from July 2005 through October 7, 2008, the Supreme Court held that the defendant met the Gagne standard, as a matter of law. On remand, the trial court must review the records, if any, generated after December 7, 2005. If the records contain evidence that would have been essential and reasonably necessary for the defense, the trial court must order a new trial, unless it finds the error in denying the motion to be harmless beyond a reasonable doubt.

On review of the records from the Raymond Police Department, the Supreme Court found that the trial court did not unsustainably exercise its discretion in withholding those records.

The defendant’s was not denied his right to a speedy trial, in part because much of the delay was at the request of the defendant.

Finally, the State concedes that the defendant was improperly sentenced on two indictments alleging alternative theories of liability. The trial court’s sentence on the lesser charge is vacated.

Pamela E. Phelan, assistant appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general, and Nicholas Cort, assistant attorney general, for the State.


State v. Ryan LaPlaca
No. 2010-042
June 28, 2011
Affirmed
  • Whether the trial court erred in denying defendant’s motion for a hearing on the issue of whether his suspended sentence should be imposed.
In June 2008, the defendant pled true to a probation violation and received a suspended sentence of two and one half to five years. A condition of his sentence was to participate in the Grafton County Drug Court Sentencing Program (Program). As part of his sentence, the defendant agreed in writing that, "[a]ny violation of the terms and conditions of the Program shall result in the imposition of sanctions, without hearing." The State moved to impose the defendant’s suspended sentence alleging that the defendant had violated the terms of his sentence by being terminated from the Program.

In an issue of first impression, the Supreme Court held that when the defendant faces the potential imposition of a full sentence of incarceration, an advance waiver of any and all hearing rights presents the serious risk of an erroneous deprivation of the defendant’s significant liberty interest and deprives him of his right to due process under the State Constitution. This decision is solely limited to the prospective waiver of the imposition of a defendant’s full suspended sentence. The decision does not address whether a prospective waiver would be valid in the context of the imposition of lesser sanctions.

David M. Rothstein, deputy chief appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general, Constance N. Stratton, senior assistant attorney general, and Thomas E. Bocian, assistant attorney general, for the State.


State v. Andre Rivera
No. 2010-130
June 28, 2011
Affirmed
  • Whether the trial court erred in refusing to dismiss the indictment.
     
  • Whether the trial court erred in providing erroneous instructions to the jury.
In August 2007, the defendant and four others discussed committing a robbery. One of the others had a submachine gun. The defendant suggested robbing the victim, a drug dealer, of money and drugs. The others agreed and one of them suggested that the group bring a gun, as the victim was known to be armed. On the night in question, the defendant drove the others to the victim’s house. The defendant and two others entered the victim’s house through a side door. When they found the victim and attempted to rob him, the victim fought with the defendant and punched him. When the victim pulled a gun, he was shot by one of the defendant’s companions. When the defendant and the others learned that the victim had been shot, they left the house and the scene. The defendant was later indicted on charges of accomplice to reckless second-degree murder; conspiracy to commit burglary, and burglary. He was found guilty by a jury on all charges.

The defendant moved to dismiss the murder indictment because it allegedly failed to allege that he acted with the purpose to promote or facilitate the specific actus reus of the principal offense – the other’s shooting the gun, which caused the victim’s death. The trial court denied the motion and denied the defendant’s request for a jury instruction that would have required the jury to find that he acted with such purpose in order to find him guilty of the murder charge.

The defendant argued that to be convicted on the charge of accomplice to second degree murder, the State was required to prove that he aided and had the purpose to promote the conduct that directly resulted in the victim’s death, in this case the shooting of the victim. The language of RSA 626:8, IV, however, states that accomplice liability can flow from conduct provided that the result was a reasonably foreseeable consequence of the conduct. Here, the victim’s death was a reasonably foreseeable consequence of the defendant’s actions, including, inter alia, planning an armed burglary of a victim known to be armed; entering the premises with the others, and confronting and scuffling with the victim.

The Supreme Court rejected the defendant’s argument that the State’s accomplice-in-conduct formulation was indistinguishable from a felony murder scheme.

The jury was instructed in accordance with the indictment and correctly recited the elements of accomplice to second-degree murder, including that the defendant acted with the culpable mental state specified in the underlying statute.

Stephanie Hausman, assistant appellate defender, Concord, for the defendant. Michael A. Delaney, attorney general, and Ann M. Rice, associate attorney general, for the State.


Family Law

In re Athena D.
No. 2011-038
June 30, 2011
Affirmed
  • Whether the probate court erred in dismissing the petition for grandparent visitation pursuant to RSA 461-A:13 for lack of subject matter jurisdiction.
     
  • Whether the probate court erred in denying petitioners’ motion to stay the adoption of Athena D, pending the filing of the petition for grandparent visitation in the family division.
     
  • Whether the probate court erred in denying motion to allow an interlocutory appeal.
     
  • Whether the probate court erred in denying petitioners’ motion to require the adoptive family to provide grandparent visitation.
The petitioners are Athena D.’s maternal grandparents. In approximately 2010, Athena was adopted by the L. family, over the petitioners’ objections, and petitioners’ competing petition to adopt Athena was denied. These orders were affirmed by the New Hampshire Supreme Court in October 2010.

Subsequently, petitioners filed a petition in the probate court for grandparent visitation pursuant to RSA 461-A:13. The probate court dismissed the petition for lack of subject matter jurisdiction, stating it must be filed in the family division. The probate court further expressed doubt that the petition could be granted subsequent to finalization of the adoption. Petitioners moved to stay the adoption pending the filing of a petition for grandparent visitation in the family division. The probate court denied the motion, stating that it was in Athena’s best interest for the adoption to be finalized promptly. Petitioners then moved for reconsideration and the approval of an interlocutory appeal and an order requiring the L. family to grant them visitation. These motions were denied and the appeal was taken.

The Supreme Court affirmed, holding that petitions for grandparent visitation pursuant to RSA 461-A:13 must be filed in the family division, thus the probate court did not err by dismissing the petition for lack of subject matter jurisdiction. The Supreme Court rejected the petitioners’ argument that the probate court’s jurisdiction over ancillary matters pursuant to RSA 547:3-l included petitions pursuant to RSA 461-A:13.

The Supreme Court further held that the probate court properly exercised its discretion in denying the petitioners’ motion to stay the adoption by the L. family, given its finding that finalizing the adoption promptly was in Athena’s best interest.

Jennifer N. and Ralph N., petitioners, pro se. Michael A. Delaney, attorney general, Rebecca L. Woodard, attorney, for the New Hampshire Division of Children, Youth, and Families. Marcia L. and Terry L., respondents, filed no brief.


Guardianship Law

In re Guardianship of Nicholas P.
No. 2010-609
June 28, 2011
Affirmed
  • Whether awarding guardianship of the ward to a non-parent over a parent’s objections violated RSA 463.
     
  • Whether awarding guardianship of the ward to a non-parent over the parent’s objections violated her fundamental right to parent her child as guaranteed by Part I, Article 2 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution.
     
  • Whether awarding guardianship of the ward to a non-parent over the parent’s objections was a de facto termination of her parental rights.
Nicholas P. is the son of Martin P. and the respondent, Rebecca P. The petitioner, Jonathon P., is Martin’s son and Nicholas’ older half-brother. Martin, Rebecca, Jonathon, Nicholas, and Rebecca’s daughter Danielle were living together in Dover. Martin and Rebecca were having marital trouble and Rebecca and Danielle left without warning and moved to South Carolina in May 2007. Rebecca never relocated to New Hampshire, despite a promise to do so. Nicholas visited Rebecca in South Carolina for six weeks in the summer 2008, but otherwise saw her only briefly.

Martin initiated divorce proceedings in August 2009, then died suddenly in October 2009. After Rebecca’s ex parte request in the divorce case to take Nicholas to South Carolina was denied, Jonathon petitioned for guardianship of Nicholas.

Jonathon’s petition to be substituted as guardian is governed by RSA 463:8, III(b). The trial court ruled that Jonathon had met his burden to show by clear and convincing evidence that the best interests of the minor required substitution of parental care to provide for the essential physical and safety needs of the minor or to prevent specific, significant psychological harm to the minor.

The Supreme Court rejected the respondent’s argument that the statute required a finding that the mother was unfit, prior to awarding guardianship to a non-parent. The Supreme Court further rejected her arguments that the trial court otherwise violated RSA 463:8.

The Supreme Court also rejected the respondent’s argument that trial court’s decision violated her fundamental right to parent her child as guaranteed by the New Hampshire and United States Constitutions.

Finally, the Supreme Court rejected the respondent’s argument that the trial court’s decision effected a de facto termination of her parental rights.

Hamilton R. Krans, Jr., Krans Law Firm, Dover, for the Petitioner. Kay Oppenheimer, Barrington, for the respondent. Michael Alfano, guardian ad litem, Portsmouth.


Landlord/Tenant Law

Phyllis Puatti v. Alicia Prentice
No. 2010-765
June 30, 2011
Affirmed
  • Whether the district court erred in granting a writ of possession to the landlord where landlord failed to prove the amount of arrearages.
On September 7, 2010, the landlord served a demand for rent on the tenant in the amount of $1,520.00 for rent due for the period July 18, 2010 through September 11, 2010. On September 12, 2010, the landlord served a notice to quit on the tenant, requiring her to deliver up the premises to the landlord "unless the total rent and $15.00 ($615.00), pursuant to RSA 540[:]9, is received in accordance with the demand for rent served simultaneously upon you." When the tenant failed to pay pursuant to the notice to quit, the landlord sought a writ of possession.

The district court found that neither party had proven the exact amount of the rental arrearage, but found that the tenant was in arrears in some amount and that the landlord was entitled to a writ of possession. The tenant appealed. The Supreme Court reversed because the landlord did not prove the amount of the arrearage.

The eviction action is governed by RSA 540. RSA 540:8 prohibits a landlord from issuing a demand for rent in an amount greater than the amount actually due and strict compliance with the statute is required. Upon the issuance of a notice to quit, RSA 540:9 permits the tenant to prevent the issuance of the writ of possession by paying the amount demanded plus $15.00 prior to the expiration of the notice to quit. At trial, the landlord has the burden to prove strict compliance with the statute. Where, as here, the landlord did not prove the amount of the arrearage, she did not meet her burden to prove that she had strictly complied with the statute. The Supreme Court reversed and remanded the matter to the district court. On remand, if the district court is able to find an amount certain of the arrearage and if the amount demanded is not greater than the amount of the arrearage, then the landlord has met her burden to prove strict compliance with the statute and the writ of possession may issue. If the amount demanded is greater than the amount of arrearage found by the district court, the court has other remedies available to it, including allowing the tenant the opportunity to pay the arrearage in order to avoid eviction.

Phyllis Puatti, plaintiff, pro se. Alicia Prentice, defendant, pro se.


Municipal Law

Peter L. Gordon, Trustee of the Peter L. Gordon Revocable Trust, et al., v. Town of Rye.
No. 2009-836
June 15, 2011
Affirmed in part, vacated in part, remanded
  • Whether the Rye Board of Selectmen correctly determined that a portion of the road had not become public by prescription.
The petitioners are owners of six properties situated on the Atlantic Ocean in Rye. The section of Harbor Road at issue lies south of the jetty marking the entrance to Rye Harbor and runs approximately 350 feet around a bend to a locked gate erected at the boundary of two of the lots. This section of the road is the only means of access to the petitioners’ properties from the end of Harbor Road. Upon the request of a petitioner and another, the Town began plowing the disputed section of Harbor Road during the winter of 1996-1997. In 2005, the locked gate was erected, which made it difficult for the snow plow equipment to turn around. In November 2007, the Town notified the Harbor Road property owners the Town would continue to plow the disputed section for the winter of 2007-2008, but that a hearing would be held later to determine whether or not the road was a public road, which the town would be required to plow, or a private way, which the Town would not maintain.

Following the hearing, at which the petitioners argued that the disputed section of the road had become public by prescription, the Town issued its written decision that the disputed section of Harbor Road was a private way. The petitioners filed a petition for a writ of certiorari, mandamus, and declaratory relief in the superior court, seeking a review of the Town’s decision and a declaration that the disputed section of Harbor Road is a public road.

The Supreme Court rejected the petitioners’ argument that the Town’s 1997 decision to plow the disputed section of Harbor Road had preclusive effect on the Town, which would prevent the Town from reopening the status of the disputed section of the road. Rather, the 1997 decision related only to plowing and did not determine that the road was a public road.

The Supreme Court agreed with the petitioners that the Town lacked subject matter jurisdiction to determine whether the disputed section of Harbor Road became public by prescription. The Supreme Court vacated that portion of the trial court’s order and remanded to the trial court for it to decide the issue de novo.

Robert E. Murphy, Jr., Wadleigh, Starr, & Peters, Manchester, for the petitioners. Michael L. Donovan for the respondent.


Russell Forest Management, LLC v. Town of Henniker.
No. 2010-719
June 15, 2011
Affirmed
  • Whether superior court erred in upholding a decision of the Town of Henniker zoning board of adjustment that a public highway did not become a private road after it was discontinued by a Town vote.
Bowers Road in Henniker was laid out as a public highway in 1797 and the Town voted to discontinue Bowers Road at a Town meeting in 1895. In 2009, the plaintiff purchased a parcel of land for which Bowers Road provides the only access. Plaintiff applied for a building permit from the Town, which was denied because "the plaintiff’s property does not have frontage, but rather only a right of way."

The trial court upheld the Town’s denial of the building permit. The Supreme Court agreed with the trial court that Bowers Road had not been converted to a private road when the Town discontinued it as a public way. Further, assuming that plaintiff had an easement over Bowers Road, the easement did not meet any of the criteria set forth in RSA 674:41, I(a), which would qualify it as a "street giving access to a lot." Thus, the zoning board lawfully denied the plaintiff’s application for a building permit.

Howard B. Lane, Jr., Lane & Bentley, for the plaintiff. Barton L. Mayer, Upton and Hatfield, for the defendant.




Francis Whitaker is an attorney with Atkins Law Offices in Londonderry. She is a 2004 graduate of UNH School of Law when it was known as Franklin Pierce Law Center.

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