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Bar News - August 19, 2011

NH Supreme Court At-a-Glance - July 2011


Petition of Stuart N. Dedopoulos
No. 2010-478
July 21, 2011
  • Whether the trial court judge erred in fining the petitioner, an attorney, $100 for failure to appear at a scheduled pretrial conference.
The petitioner, Attorney Stuart N. Dedopoulos, challenged an order of the Rockingham Superior Court that fined him $100 for failing to appear for a pretrial conference. Attorney Dedopolous was retained by Amanda Wolfe to represent her for a denovo jury trial in Rockingham Superior Court. At the same time, Attorney Dedopolous represented Robert Yeaton in an unrelated felony case in Strafford Superior Court. Both cases were scheduled for final pretrial conferences the morning of June 10, 2010. Jury selection for both cases was scheduled for June 21, 2010.

The prosecutor in the Yeaton case moved to continue trial. Attorney Dedopolous objected. The motions were not ruled on until the day of the pretrial conference. Attorney Dedopolous then motioned to continue the pretrial conference and jury selection dates in Wolfe, citing, in part, the scheduling conflicts with Yeaton.

Attorney Dedopolous made several attempts to contact the Rockingham County Superior Court clerk’s office to check on the status of his motion. After failed attempts to reach the clerk’s office, Attorney Dedopolous conferred with the prosecutor in Wolfe and explained his situation. The prosecutor stated he would not object to the continuance on the condition Attorney Dedopolousconfirmed the Yeaton trial would proceed as scheduled. Attorney Dedopolous also told the prosecutor he would be available to meet June 11, one day after the originally schedule pretrial conference. Subsequently, on June 10, 2010, the prosecutor in Yeaton withdrew her motion to continue at the pretrial conference, therefore, leaving the trial schedule unchanged.

The prosecutor in Wolfe appeared at the pretrial conference without Attorney Dedopolous. He informed the Court that Attorney Dedopolous was appearing in Strafford Superior Court on a contested motion to continue. He also informed the Court he has no objection to Attorney Dedopolous’ motion if the Yeaton trial proceeded as scheduled. The Court denied Attorney Dedopolous’ motion to continue and fined him $100 for failure to appear without a ruling on the motion.

Upon learning of the Court’s ruling, Attorney Dedopolous filed a motion to reconsider, detailing his attempts to contact the Court. The trial court continued the trial, but left the fine in place.

On appeal, Attorney Dedopolous argued the imposition of the $100 fine by the trial court was error. The New Hampshire Supreme Court sided with Attorney Dedopolous. The Court noted trial courts should make every effort to accommodate the reasonable scheduling requests of attorneys. In this case, the Court found Attorney Dedopolous made reasonable and diligent efforts to contact the Rockingham Superior Court. When those attempts failed, he notified opposing counsel of his circumstances. Because of his conduct, the Court found nothing in the record that would have suggested any act of negligence by Attorney Dedopolous. As a result, the Court found it was error for the trial court to have imposed the $100 fine.

Andrew R. Ssculman, Getman, Schulthess & Steere, P.A., for the petitioner. Michael A. Delaney, attorney general, for the State (no brief filed).

Criminal Law

State v. Anthony Kay
No. 2010-115
July 21, 2011
  • Whether the trial court had erred when it found Anthony Kay, defendant, had violated the terms of his probation and imposing a prison sentence after finding the defendant had failed to make required weekly child support payments and also maintain weekly contact with his probation officer.
Anthony Kay, defendant, appealed the decision of the Hillsborough County Superior Court that found he violated his probation and imposed a prison sentence for non-payment of child support. The defendant pleaded guilty to two counts of felony failure to pay child support, owing nearly $70,000 at the time of sentencing. He received two concurrent two-to-five year deferred sentences and he was placed on probation through the New Hampshire Department of Health and Human Services.

The defendant’s probation officer instructed the defendant to make payments of $91.65 per week for the two cases, payable through a wage assignment while he was employed. The defendant was also to maintain weekly contact with his probation officer and inform him of any change in employment status.

The defendant first worked for Sterling Linen on January 9, 2008, where began making his wage assignment payments. After approximately thirty days, the defendant’s employment at Sterling Linen ended. He remained unemployed until June of that year. He later found employment at Fletcher Sandblasting and resumed his wage payment; however, he was fired from Fletcher Sandblasting after thirty to forty days and became homeless. The defendant stopped reporting to his probation officer soon thereafter.

The defendant’s probation officer reported to the court the defendant had violated the terms of his probation by failing to make his weekly support payments and also by failing to maintain weekly contact. In addition, the probation officer calculated the defendant had made only a total of $406.54 in support payments. The court conducted a probation violation hearing and found the defendant had violated the terms of his probation. The defendant was then sentenced to three-and-one-half to seven years in the New Hampshire State Prison.

On appeal, the defendant argued the trial court erred by finding he violated his probation by not regularly reporting to his probation office as well as adhering to the weekly payment schedule. He argued the conditions were never imposed by the sentencing court, and, as a result, the trial court improperly modified the conditions of his sentence in violation of his due process rights. The New Hampshire Supreme Court rejected the defendant’s claims.

The Court found the sentencing order imposed an obligation on the defendant to pay child support and that he was to do it through his probation officer. Noting the order implied the probation officer had the authority to establish the amount of the payments and to require the defendant to maintain weekly contact with him, the Court concluded the order gave the defendant sufficient notice that his probation officer could set the terms and conditions in order to ensure the defendant’s compliance with the child support payments.

In addition, the defendant argued the trial court erred in finding he violated the terms of his probation by failing to pay child support because he suffered a financial hardship while he was unemployed and that he also made bona fide efforts to fulfill his obligation by making his wage assignment payments during the times he was employed.

The State countered that the defendant made payments totaling only $406.54, which was calculated for only the sixty to seventy days the defendant had been employed. After review, the State noted the defendant’s total obligation for the period of the defendant’s employment was between $779.02 and $916.50. Therefore, the State argued the defendant failed to pay between $372.48 and $509.96 of his weekly support obligation in violation of the terms of the defendant’s probation.

The Court agreed with the State. It noted that there were disputed facts over how the defendant’s employment at Sterling Linen ended. As for his employment at Fletcher Sandblasting, the Court noted that, although the defendant had testified he was fired and became homeless, he never had any direct contact with his probation officer after June 3, 2008. Also, he failed to make support payments after June 26, 2008. The Court also stated the defendant failed to meet his burden as to why he failed to make his required payments while he was employed. Finally, because of the disputed circumstances surrounding the end to the defendant’s employment at Sterling Linen, there was sufficient evidence for the trial court to have found the defendant quit his job and created his own financial hardship.

Dorothy Graham, assistant appellate defender, Concord, for the defendant. Michael A. Delany, attorney general (Nicholas Cort, assistant attorney general), for the State.

Administrative Law

Appeal of Campaign for Ratepayers’ Rights
No. 2010-121
July 21, 2011
  • Whether the appellants had standing to file a motion for declaratory judgment under RSA 162-H:2, XI, thereby conferring subject matter jurisdiction on the New Hampshire Site Evaluation Committee to determine whether the Public Service Company of New Hampshire was required to seek a Certificate of Site and Facility for additions that were to be made to the Merrimack Station.
  • Whether the New Hampshire Site Evaluation Committee erroneously imposed costs on the appellants in an action after the Committee had conducted proceedings and ruled against the appellants and their motion for declaratory judgment and in favor of the Public Service Company of New Hampshire.
Several appellants appealed the New Hampshire Site Evaluation Committee’s (Committee) decision to deny their motion for declaratory judgment regarding the installation of a wet flue gas desulphurization system (scrubber) at the Merrimack Station, an electricity generating facility, owned by the Public Service Company of New Hampshire (PSNH), appellee. The appellants filed a motion for a declaratory judgment seeking a determination as to whether the Committee had jurisdiction over mercury scrubber modifications to the Merrimack Facility because such modifications would constitute a "sizable addition" to the existing facility within the meaning of RSA 162-H:5, I. RSA 162-H:5, I required certificates for "sizable additions" to existing bulk power or energy facilities. The appellants believed PSNH was required to file for approval of the modifications or request a determination whether the modifications constituted a "sizable addition."

After argument, the Committee determined it did have jurisdiction to consider the appellants’ motion. It then made a determination as to whether the scrubber project and an additional project for a turbine upgrade at the Merrimack Facility were a single project or two separate projects, neither of which constituted a "sizable addition" and, therefore, not requiring a Certificate of Site and Facility. The Committee found the projects were separate from each other and found that no Certificate of Site and Facility was needed. It subsequently imposed the costs of the action upon the appellants.

On appeal, the appellants argued the Committee erroneously determined the scrubber project was not a sizable addition to the Merrimack Station as well as imposing the costs for the action on them. PSNH argued the appellants lacked standing to proceed before the Committee.

The New Hampshire Supreme Court first addressed the standing issue. PSNH first argued the appellants’ motion, in substance, was a petition as defined by RSA 162-H:2, X-a, rather than a motion for declaratory judgment, because the appellants asked the Committee to rule on the applicability of that chapter to the Merrimack Facility. PSNH further argued RSA 162-H:2, X-a XI limited the persons or entities that could file a petition to those enumerated in the statute. It then went on to say the appellants did not fall within any of those categories.

The Court agreed with PSNH on both points. Particularly, with respect to the enumerated persons or entities in the statute, the Court noted the legislature specified which entities had the right to file a petition with the Committee. It rejected the opportunity to add to that list without a clear showing of legislative intent. Nonetheless, the appellants cited New Hampshire Administrative Rule, Site 203.01 as the authority under which they could bring their motion for declaratory judgment. The Court, however, rejected this argument and stated that rules that have been adopted by State boards and agencies "may not add to, detract from, or in any way modify statutory law." Hence, because the appellants lacked standing under RSA 162-H:2, XI, the Committee could not grant them standing on their own accord.

As a result of its finding that the appellants lacked standing under RSA 162-H:2, XI, the Court ruled the Committee lacked subject matter jurisdiction and vacated the Committee’s order.

The Court then turned to the question of whether the Committee had erroneously imposed costs on the appellants for the Committee’s proceedings. The appellants argued that, under RSA 162-H, the Committee did not have any express, implied, or inherent authority to impose its costs (including attorneys’ fees) on them. The Court agreed. Specifically, it stated RSA 162-:10, V, which allows the Committee to impose costs on an "applicant", was ill-defined and that, if the Committee’s interpretation of the statute were allowed, it would conflict with New Hampshire Administrative Rule, Site 102.03 that defines an applicant as someone "seeking to construct and operate any energy, renewable energy or bulk power supply facility…"

In addition, the Court found the Committee lacked any inherent authority under Appeal of Land Acquisition, 145 N.H. 492 (2000), where the Court stated a quasi-judicial administrative body did not have the inherent authority to award attorneys’ fees. Instead, that body’s authority is expressly limited by statute.

As a result, the Court found the Committee lacked the authority to impose costs and fees upon the appellants and it vacated that part of its order.

Douglas L. Patch and Jeremy D. Eggleton, Orr & Reno, Concord; Patrick Arnold, Bostock Law, Exeter; Melissa Hoffer, Concord; James T. Rodier, Portsmouth, for the appellants. Wilbur A. Glahn, II, McLane ,Graf, Raulerson& Middleton, Manchester, for the appellee.

Real Property Law

Winecellar Farm, Inc. v. Leona Hibbard
No. 2010-275
July 21, 2010
Affirmed in part, Reversed in part, and Remanded
  • Whether the trial court erred in denying the petitioner’s motion for a decree pro confesso after the petitioner filed for such a decree and after the respondents failed to file an answer in a timely manner in accordance with Superior Court Rule 131.
  • Whether the trial court erred in ruling the doctrine of part performance did not apply after the Leo and Eva Bedard made oral and written statements to Winecellar affirming its right to purchase the Bedard Farm as well as Winecellar’s $200 monthly payments towards the purchase right.
  • Whether the Haying Agreement between Winecellar and the Bedards, which granted Winecellar the right to hay in perpetuity on the Bedard Farm, constituted an unreasonable restraint on alienation of property.
  • Whether the trial court erred when it granted Winecellar the right to purchase the buffalo pastures after misapplying the doctrine of part performance.
Winecellar was a farm adjacent to the Bedard Farm, owned by Leo and Eva Bedard. The Reifs, owners of Winecellar, informed the Bedards of their interest in purchasing the Bedard Farm once they were ready to sell it. In the meantime, Winecellar was interested in farming both properties together. On May 1, 2004, the Reifs and Eva Bedard signed a "Memorandum of Understanding to Harvest Hay" (Haying Agreement) that allowed Winecellar to harvest hay from the Bedard Farm and maintain harvest fields. In exchange, Winecellar would be responsible for maintaining certain access ways and roadways. The agreement also allowed Winecellar to continue haying in perpetuity as long as Winecellar maintained the access way, roadways, and covered the costs of insurance. Winecellar also asked the Bedards if they could lease some farmland to pasture buffalo, but the offer was declined.

Winecellar later wrote a letter of apology to the Bedards, stating that it had moved too fast in asking the Bedards to lease their land for buffalo. That letter, however, expressed continued interest to lease the land on a monthly basis and, eventually, purchase the land from the Bedards. On September 7, 2004, the parties entered into an agreement for Winecellar to lease land from the Bedards to pasture buffalo (Pasture Agreement) in exchange for monthly payments of $200. Winecellar began paying the Bedards $200 per month and invested money in putting up a fence and purchasing other equipment so it could pasture the buffalo.

In January 2006, Winecellar offered to pay an additional $200 per month to fence more land for pasturing buffalo. It once again sought written confirmation of its ability to purchase the Bedard Farm. This letter also contained a "letter of understanding" and provided that, in consideration of its additional payments of $200, the Bedards would agree to sell their farm to Winecellar at a time when the Bedards felt comfortable. The Bedards never signed the letter. Subsequently, Winecellar began paying the Bedards $400 per month and identified each payment as a "land lease payment."

Following the death of Leo Bedard, Winecellar again expressed interest in buying the Bedard Farm to Eva Bedard. That note, identical to the first "letter of understanding" indicated it was signed by Mr. and Mrs. Reif and Eva Bedard on April 8, 2006. That letter also showed that "Stephen Hoginski" witnessed all three signatures; however, he was not present when Eva Bedard signed the note. Instead, Mr. Hoginski signed the note as a "witness" outside her presence. Eva Bedard passed away a few months later and Winecellar recorded the signed "Letter of Understanding."

Eva Bedard’s will, executed in December 2005, provided for the Bedard Farm to pass to her nieces and nephews in accordance with a residual property clause. Winecellar filed a petition for a preliminary injunction in November 2006 that sought to preclude Ms. Bedard’s estate from evicting Winecellar’s herd of buffalo and removing fencing equipment. The basis of Winecellar’s argument rested upon the Haying Agreement, Pasture Agreement, and a Purchase and Sale Agreement executed in April 2006. The trial court granted Winecellar’s motion for preliminary injunction. Winecellar then filed an amendment seeking to compel Eva Bedard’s estate to convey to Winecellar the Bedard Farm based on the doctrine of part performance and on a purchase and sales agreement.

Winecellar subsequently filed an emergency motion to add the individual heirs of Eva Bedard’s estate as necessary parties and to add a quiet title claim against them. The trial court ordered the heirs to file a written appearance by a date certain as well as a plea, answer, demurrer, or other response by November 6, 2009. The heirs (respondents) filed appearances, but they did not file timely responses. Winecellar then moved for a decree proconfesso that would have entitled it to purchase the Bedard Farm. The trial court denied the motion.

After a bench trial, the trial court declined to compel Eva Bedard’s estate to sell the Bedard Farm to Winecellar. It ruled the Pasture and Haying Agreements were not enforceable against the estate; but it did rule Winecellar would be allowed to purchase the buffalo pastures. Winecellar appealed the trial court’s ruling regarding the Pasture and Haying Agreements. The respondents cross-appealed, arguing the trial court erred when it granted Winecellar the right to purchase the buffalo pastures and when it declined to order Winecellar to turn over to the estate the rental payments for use of the pastures during pendency of the litigation.

On appeal, Winecellar first argued the trial court erred in denying its motion to grant a decree proconfesso when the respondents failed to timely file a response to Winecellar’s motion to add them as necessary parties and to add a quiet title claim under Superior Court Rule 131. The New Hampshire Supreme Court found no error in the trial court’s decision. The Court noted the trial court can exercise its discretion to set aside such a decree "…as justice may require." Because the trial court found Winecellar did not suffer any prejudice from the delayed answer, the Court found that Winecellar failed to establish any error by the trial court.

The second issue on appeal dealt with whether the trial court erred in failing to grant Winecellar specific performance pursuant to the doctrine of part performance, an exception to the Statute of Frauds. Winecellar argued that it relied on oral and written statements made by the Bedards that affirmed its right to purchase the Bedard Farm as well as its monthly payments of $200 toward that purchase right.

The Court noted the doctrine of part performance is applied to oral contracts for the sale of real estate where a purchaser "has proceeded, either in performance or pursuance of the contract, so far to alter his or her position as to incur an unjust injury and loss." The Court reviewed the three factors considered in applying the doctrine and it noted the trial court ruled the doctrine did not apply, although it made a note that it was unclear whether the trial court found the Bedards made an oral promise to sell their farm to Winecellar. Because the record was unclear, the Court conducted its analysis assuming that an oral promise to sell was made by the Bedards to Winecellar.

The Court subsequently agreed with the trial court’s ruling that Winecellar’s reliance on any oral promises made by the Bedards to sell the property were unreasonable. The Court noted Winecellar knew that any such agreement should have been in writing. This was evidenced by Winecellar’s repeated attempts to memorialize an agreement, which were refused by the Bedards. In addition, the Court agreed that Winecellar’s expenditures regarding the buffalo pastures were explainable on grounds other than a promise by the Bedards to sell their farm, including the Haying and Pasture Agreements.

The Court also stated Winecellar failed to demonstrate the trial court erred when it concluded the additional $200 monthly payments constituted land lease payments rather than consideration for a purchase right. Citing the letters written by Winecellar, the Court noted that Winecellar itself described the payments as land lease payments. Further, Winecellar never identified those payments as "Land Lease and Purchase Payments" until after Eva Bedard passed away. Finally, with respect to the agreement "witnessed" by Mr. Hoginski, the Court stated that, because of the circumstances surrounding that agreement, and the fact that Mr. Hoginski did not actually witness the signing of the document, it was not persuaded the trial court erred in ruling that the doctrine of part performance did not apply.

The final issue on appeal had Winecellar arguing the trial court erred when it concluded the Haying Agreement was not a perpetual leasehold, contending that the plain language of that agreement granted Winecellar the right to hay in perpetuity and that it was consistent with the intent that Winecellar would own the Bedard Farm. The trial court ruled the agreement was not enforceable because it created an unreasonable restraint on alienation of real property. The Supreme Court agreed with the trial court’s assessment, stating the agreement potentially effected a significant hindrance on the alienability of the Bedard Farm to potential purchasers who did not wish to maintain the property as a farm as well as to prospective purchasers who wished to use the fields for other farming-related purposes. The Court also stated it was unreasonable to conclude a bona fide purchaser would be willing to buy the farm in light of the Haying Agreement.

Finally, the Court turned to the respondents’ cross-appeal. The respondents argued that, because the trial court misapplied the doctrine of part performance, it erred when it ordered Winecellar could purchase the buffalo pastures. The Court agreed, stating that the point of the third prong of the part performance doctrine (inadequacy of restitution) is that if restitution is available as a reasonably adequate remedy, then it is weighed against allowing an oral contract to be specifically enforced. Therefore, it followed that the award of monetary recovery provided adequate relief.

Using this reasoning, the Court stated it was not aware of any authority that supported the award of a land transfer based on inadequacy of restitution where the trial court rejected the applicability of the part performance doctrine. The Court, therefore, reversed the award of Winecellar’s purchase right to the buffalo pastures and remanded to the trial court to determine what monetary relief, if any, Winecellar was entitled to recover.

R. James Steiner, Steiner Law Office, Concord, for the petitioner. R. Peter Taylor, McNeill, Taylor & Gallo, Dover, and Christopher P. Mulligan, Bosen& Associates, Portsmouth, for the respondents.

Workers’ Compensation – Compensation Appeals Board

Appeal of James Margeson
No. 2010-633
July 21, 2010
Vacated and Remanded

The New Hampshire Supreme Court adopted the increased-risk test in a workers’ compensation action for a claimant’s injury that resulted from a neutral risk, when neither the employer nor the employee are at fault. Under the increased-risk test, an employee may recover if his injury resulted from a risk greater than that to which the general public was exposed.

James Margeson, petitioner, appealed a decision of the New Hampshire Compensation Appeals Board after he was denied reimbursement for medical treatment and workers’ compensation benefits. Mr. Margeson was an employee working as a youth counselor for the Sununu Youth Services Center (Youth Center). On April 18, 2009, he was working the third shift and performing a routine bed check. During the course of the bed check, Mr. Margeson walked down a set of the Youth Center’s stairs, lost his balance, and twisted his right knee. The stairs were new in condition and were not otherwise hazardous. Mr. Margeson received medical treatment and sought reimbursement for the medical bills he incurred.

The Youth Center objected and the Compensation Appeals Board subsequently upheld the decision, reasoning that Mr. Margeson did not encounter any greater risks in his employment than in his everyday life and that the employment did not cause or bring about any additional risk which contributed to his injury. Mr. Margeson appealed.

The dispute centered on whether Mr. Margeson’s injury arose out of his employment, as was required under RSA 281-A:2, XI (2010). The statute read that an employee, in a claim for workers’ compensation could recover if an injury arose out of and in the course of employment. The New Hampshire Supreme Court noted that, because courts used any of three different tests to determine whether an employee’s injury arose out of his employment, the parties disagreed as to which standard was appropriate for Mr. Margeson’s circumstances. As a result, the Court set out to adopt a single test to determine the appropriate standard to determine whether the type of injury suffered by Mr. Margeson arose out of employment.

The Court conducted an analysis of the types of employment-related risks that typically come up during any given employment situation. After a brief discussion of these risks, the Court concluded Mr. Margeson’s injury resulted from a neutral risk, one in which is "neither distinctly employment nor distinctly personal character" because Mr. Margeson slipped while descending a staircase that was free of defects.

Having determined that Mr. Margeson’s injury resulted from a neutral risk, the Court examined the requirements of RSA 281-A:2, XI, and noted that, in order to satisfy the "arising out of" requirement, a two-part causation test requiring proof of legal and medical causation must first be met. Specifically, the Court reviewed the test found in New Hampshire Supply Company v. Steinberg, 119 N.H. 223 (1979) (Steingberg I), which, within the context of a heart attack suffered at an employee’s place of work, the Court found that an injury was compensable if the claimant proved work-related stresses were a causal factor in the heart attack. Acknowledging the limited scope of Steinberg I, the Court noted subsequent case law rounded the test by requiring medical and legal causation for an injury to be compensable.

After conducting a review of its most recent case law with respect to the Steinberg I test for compensability, the Court concluded an extension of test to neutral risk cases was not warranted. The Court reasoned that an injury resulting from a neutral risk, being attributable to neither the employer nor the employee, would effectively eliminate the "arising out of" requirement found in RSA 281-A:2, XI. In addition, such an extension would have run contrary to the Court’s prior workers’ compensation case law.

Instead, the Court adopted an increased-risk test when a claimant’s injury resulted from a neutral risk. Under this test, an employee may recover if his injury results from a risk greater than that to which the general public is exposed. According to the Court, an injury may be compensable as long as the employee faced an increased quantity of risk. As a result of its adoption of the increased risk test for the first time in situations where an injury resulted from a neutral risk, the Court remanded the case to the Compensation Appeals Board to determine whether Mr. Margeson could recover for his injury. Finally, the Court limited the scope of the increased-risk test and noted the test applies only to injuries that are attributable to neutral risks.

Kristin H. Sheppe and Michael C. Reynolds, Concord, for the petitioner. James E. Owers and Stacey P. Coughlin, Sulloway and Hollis, Concord, for the respondent.

Alexander G. Gatzoulis

Alexander Gatzoulis has been an attorney since 2008. He was an Assistant Merrimack County Attorney and left the office in January of this year. He opened his own law practice at 27 Bay Street, Manchester, New Hampshire 03104

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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