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Bar News - January 13, 2012

NH Supreme Court At-a-Glance - December 2011


Administrative Law

Appeal of Raymond Letellier, No. 2010-795
December 15, 2011
Affirmed in part, reversed in part
  • Whether the Compensation Appeals Board (CAB) erred in its award of reimbursement for medical bills and expenses, but not granting indemnity benefits
Letellier was co-founder and then manager of plant operations of Steelelements, Inc. In 2007 a fire destroyed the manufacturing plant and the business was closed in 2009. Letellier then filed personal and business bankruptcy. Before the business closed, Letellier saw a nurse at Concord Psychiatric Associates due to stress. During the next several months, Letellier developed hypertension and major depression which several doctors attributed to the business failure as well as other life stressors. Letellier filed a worker’s compensation claim citing mental stress and severe depression. Upon claim denial, Letellier requested a hearing.

A hearing officer denied Letellier’s claim finding that he failed to show that he suffered an injury that arose out of and in the course of his employment. Letellier then appealed to the CAB which found that Letellier established both medical and legal causation and that stress and depression qualify as compensable occupational injuries within the meaning of the statute. It ordered the carrier to pay all medical and psychological treatment expenses. The carrier filed a motion for rehearing while Letellier filed a motion for clarification requesting that indemnity benefits be included.

The Court held that the plain meaning of the phrase "any similar action" of RSA 281-A:2, XI to mean that a mental injury caused by business failure is not a covered injury. The Court held its decision was distinguishable from the interpretation of RSA 281-A:2, XI in Petition of Dunn, 160 NH 613 (2011) as Letellier’s injuries did not arise from the performance of personnel duties that were part of his job. The Court noted, however, that the business failure exclusion only applies to any similar action, "taken in good faith" by an employer.

Justice Dalianis, C.J., and Justice Hicks dissented. Richard J. Walsh, III for the Petitioner. Paul R. Kfoury, Jr., for the Respondents.

Appeal of Countrywide Home Loans, Inc., No. 2010-864
December 28, 2011
  • Whether the commissioner of the banking department erred in accepting a motion for rehearing that was filed more than thirty days after an order or decision.
On October 17, 2008, borrower filed a consumer complaint with the banking department alleging that Countrywide misled her about the terms of the mortgage loans. On April 17, 2009, banking department issued a letter response to the borrower, signed by a hearings examiner, that no action against Countrywide would be taken with regard to the complaint.

Approximately six months later the borrower requested a hearing on the merits, which was subsequently denied. The borrower then filed a motion for rehearing, which was granted. On December 23, 2009, the commissioner entered an order ruling that Countrywide had committed "an unfair or deceptive act or practice." Countrywide focuses its appeal argument upon the borrower’s failure to timely seek rehearing after receiving the April 7, 2009 letter.

The Court ruled that the April 7, 2009 letter constituted an "order or decision" denying the borrower’s consumer protection complaint. A letter is appealable when it "constitutes a final administrative disposition of the issue and determined that the crux of the matter is the practical impact of … the action." In this matter, the banking department’s letter definitively denied the borrowers’ complaint, absent a motion for rehearing. Because the borrower did not file a motion for rehearing within thirty days of the letter, she forfeited her right and commissioner should not have granted a hearing.

Martin P. Honigberg & Brook L. Ames for the Petitioner. Krista Atwater & Mary Frances Stewart for the Respondent.

Thomas Ettinger v. Town of Madison Planning Board, No. 2010-688
December 8, 2011
  • Whether the trial court erred in its decision that the Board’s private meeting violated the Right-to-Know Law.
The Right-to-Know Law provides that "all meetings, whether held in person, by means of telephone or electric communication, or in any other manner, shall be open to the public. RSA 91-A:2 (Supp. 2010). In this case, Town of Madison Planning Board (Board) scheduled a public hearing. At the scheduled time of the hearing, the Board, joined by its administrative assistant, went into a private session for thirty minutes. In that session, they read and discussed emails from the Board’s attorney, a memorandum summarizing legal advice relayed over the phone from the Board’s attorney to the Board’s administrative assistant, and letters from the Plaintiff’s attorney. After the private session, they emerged and rendered a decision.

Trial Court ruled that the Board was in violation of the Right-to-Know Law. The Board argued that private session qualifies as a "consultation with legal counsel." Court agreed with the trial court, that a "consultation" is a council or conference (as between two or more persons) usually to consider a special matter…with legal counsel, not to discuss a legal memorandum prepared by the public body’s attorney.

Peter J. Malia for the Plaintiff. Laura A. Spector for the Defendant.

Civil Law

Hansa Consult of North America, LLC (HCNA)  v. Hansaconsult Ingenieurgesellschaft MBH
December 15, 2011, 2011-057
Affirmed in part, reversed in part, and remanded.
  • Whether the trial court erred in its decision to grant a motion to dismiss based upon res judicata, collateral estoppell, and based upon interpretation of the forum clause of a contract provision
HCNA and Hansaconsult entered into a distribution agreement making HCNA the exclusive distributor of Hansaconsult products throughout the US and Canada. This agreement terminated in 2005 and Hansaconsult instituted litigation against HCNA in New Hampshire and Germany. In August of 2006, the parties entered into a settlement protocol agreement (SPA) which included a provision dismissing both the Germany and New Hampshire actions without prejudice to pending settlement negotiations. Settlement broke down and Hansaconsult again sued HCNA for breach of the agreement, but this time only in Germany. HCNA filed in superior court to enjoin the Germany lawsuit, claiming violation of the SPA. HCNA then filed its own lawsuit against Hansaconsult in New Hampshire, asserting same claims as its original counterclaims in the 2006 lawsuit. Hansaconsult moved to dismiss but the parties agreed to stay the dismissal motion pending the superior court’s ruling on the HCNA motion to enforce the SPA.

In 2010 the superior court issued a preliminary ruling scheduling a limited hearing on whether Hansaconsult violated the SPA’s good faith requirement and stating that all other claims had to be litigated in Germany. After the good faith hearing, the court issued an order finding that neither party had breached their SPA obligations and again stating that the distribution agreement required all claims to be heard in Germany. HCNA moved to reconsider the Germany requirement, which was affirmed by the Supreme Court in Hansaconsult Ingenieurgesellschaft mbH v. Hansa Consult of North America, LLC & a., No 2010-0803 (NH Aug. 24, 2011). The trial court then granted Hansaconsult’s motion to dismiss. The trial court based its denial of HCNA’s motion to reconsider because "the Plaintiff cannot separate this case from the provisions of the Distribution Agreement."

On appeal, HCNA argued that the trial court erred in adopting Hansaconsult’s argument that HCNA’s 2009 claims were barred under res judicata and collateral estoppel. Hansaconsult argued that the HCNA’s claims were barred because the trial court had decided precisely the same issues and/or causes of action in its September 28, 2010 final order in the previous litigation. The Supreme Court held that res judicata did not apply because HCNA did not bring the same cause of action as it did in the 2009 motion to enforce because there it sought to enforce the 2006 settlement agreement and to enjoin Hansaconsult’s action in Germany. Res judicata does not prevent HCNA from arguing in the most recent action that its claims against Hansaconsult should be litigated in New Hampshire. The Supreme Court held that collateral estoppel did not apply because the superior court’s 2006 decision that all remaining issues were to be heard in Germany because of the distribution agreement was not "essential to the judgment" on the issue then before the superior court (whether Hansaconsult should be required to re-enter settlement negotiations under SPA) and therefore its judgment could not be given preclusive effect.

HCNA also argued that the trial court erred when it concluded that HCNA’s claims against Hansaconsult in the most recent action fall within the ambit of the 2001 distribution agreement’s forum selection clause and therefore must be brought in Germany. HCNA argued that its claims did not "arise out of" the distribution agreement while Hansaconsult argued that the language of the forum selection clause was broad enough to cover all disputes arising out of the parties’ commercial dealings.

When the trial court relies upon pleadings to grant a motion to dismiss based upon a question of contract interpretation, the Supreme Court reviews de novo. The Court needed to determine, based upon the precise recitation of the legal claims that HCNA asserted in the most recent action and the underlying claims upon which those claims were predicated, whether the forum selection clause covers any or all of those claims and their predicate facts. The Court denied Hansaconsult’s broad interpretation argument, holding that the reach of generic forum selection provisions should be limited to disputes involving the rights and obligations that the contract itself creates.

The Court concluded that the superior court correctly held that the HCNA’s misappropriate allegations, and claims originating from them, arise under the contract and should be brought in Germany. The Court concluded that the HCNA’s market representation claims did not arise under the contract for the purpose of the forum selection clause because for three reasons: 1) HCNA could not fairly anticipate when it signed the contract that it would litigate a claim against Hansaconsult arising solely from their relationship as market competitors rather than business co-venturers. (Alternatively, HCNA could have anticipated litigating misappropriate-based claims because the contract expressly imposed obligations on both parties with regards to trade secrets); 2) HCNA could not have used its market representations allegations to evade the forum selection clause through artful pleading (as the Court does not want parties rewarded for artful pleading of disputes that could be brought as contract claims that should be litigated in the forums chosen by the parties); and 3) contracting parties remain free to draft specific terms in the forum selection clauses to avoid any rule adopted by the Court. The Court reversed and remanded the misappropriation-based claims for trial.

Lastly, HCNA argued that it was denied due process when the superior court granted Hansaconsult’s motion to dismiss sua sponte without HCNA having had an opportunity to oppose the motion. The Court disagreed, especially has HCNA had sufficient notice and an opportunity to be heard when it filed its motion for reconsideration.

Lawrence E. Edleman and Michele E. Kenney on the brief and Mr. Edelman orally for the Plaintiff. Lisa Snow Wade and John L. Arnold on the brief and Ms. Wade orally, for the defendant.

Linda Thompson v. Christopher D’Errico, No. 2011-439
December 14, 2011
  • Whether sending foul language texts at inconvenient hours, combined with past attempted choking and a statement about a loaded shotgun supported the issuance of a restraining order
Ms. Thompson sought a restraining order in April of 2011. Following an evidentiary hearing, the court found that the defendant had sent the Plaintiff nearly every day "many text messages using extraordinarily foul language", the defendant had told the Plaintiff not to come near his house because he had a loaded shot gun, and in the past the defendant was stopped from choking the Plaintiff. Following the granting of the restraining order, the defendant moved for reconsideration asserting that the evidence did not support a credible present threat to the Plaintiff’s safety, noting the loaded gun statement was made in January of 2011 and the choking incident occurred before that. Following a hearing, the trial court issued an order, detailing that the foul language text messages at inconvenient hours, the language of one text "bills asshole die bitch" combined with the loaded shotgun statement and previous attempted choke constituted a credible threat.

The Court disagreed with the defendant’s assertions that his foul language was non-threatening and therefore protected by the first amendment. The Court held that the defendant’s repeated messages containing "extraordinarily offensive and course language" could be used in determining the defendant had harassed the Plaintiff as defined in RSA 644:4. The defendant failed to provide a transcript and therefore his remaining arguments were rejected and, absent a transcript, the Court assumed there were sufficient facts to support the trial court’s finding.

Lenora Boehm for the Plaintiff. Mr. D’Errico, Pro Se.

Holloway Automotive Group d/b/a Holloway Motor Cars of Manchester v. Goran Lucic, No. 2010-563
December 14, 2011
Affirmed in Part, Vacate and Remand
  • Whether the trial court had the proper jurisdiction to pierce the corporate veil.
In May 2008, Lucic, on behalf of the corporation, paid and signed agreements for two vehicles with Holloway, who is authorized dealer of Mercedes-Benz North America. Each agreement included a clause not to export the vehicles outside North America for a period. The agreement also provided that if the vehicles were exported within a year, the corporation would pay Holloway $7,500 as liquidated damages. Less than two weeks later, both vehicles were exported.

The district court found that the corporation had breached the no-export agreements and enforced the liquidated damages provision; it also pierced the corporate veil to hold Lucic personally liable for the breaches. The Court affirmed the trial court’s enforcement of liquidated damages provision in the parties’ contract, but concluded that the district court lacked equitable jurisdiction to pierce the corporate veil. The Court reasoned that it was the corporation, not Lucic as an individual, who purchased the vehicles and entered into the no-export agreements. Therefore, the award against Lucic as well as the award of attorney’s fees, were vacated and remanded.

Bradley M. Lown, for the Plaintiff. John P. Sherman for the defendant.

Criminal Law

State v. Dickens Etienne
December 21, 2011, 2004-833 and 2006-919
  • Whether the application of deadly force includes a reasonably necessity element
  • Whether a third person’s provocation alone would be sufficient to bar the use of self-defense and whether the defendant must reasonably believe in the third person’s innocence before deadly force in defense of a third person may be justified
  • Whether the State’s failure to disclose a letter discussing cooperation by a State’s witness, that witness’ alleged perjury, and new exculpatory evidence warranted a new trial
The defendant and the victim, Larry Lemieux, had a tense relationship that escalated in 2004 when Lemieux attempted to sexually assault the defendant’s friend, Jennifer Hannaford. When the defendant learned about the attempted assault, he was upset, but did not immediately return to Manchester. Instead, the defendant and his friend Pierre made several phone calls regarding Lemieux. Lemieux was overheard making statements during a phone call indicating that he was willing to engage in a fist fight. Lemieux and the defendant then exchanged phone calls. Lemieux stated that the defendant had threatened to kill him. After Lemieux and the defendant agreed to meet at Central Street, the defendant took steps to get there first. The defendant also called a friend, Gomez, for him to bring a gun to the meet.

At Central Street, the defendant and Pierre retrieved guns and then went outside (with several others) to confront Lemieux. When Lemieux arrived, he stood with his hands in his pockets, face to face with Pierre. The defendant stood behind him. Witness accounts varied as to what happened next, but all witnesses agreed that the defendant and Pierre spoke to each other in Haitian Creole, and then the defendant stepped behind Lemieux, raised his gun, and shot Lemieux in the head behind his right ear. Lemieux’s hands were inside his jacket when he was shot. He died immediately.

After the shooting, the defendant disposed of the weapon, worked to create an alibi for the shooting, and eventually went to the police station. He approached Detective Willard and said he was there to check on his friends’ bail status. After a 55 minute conversation, the defendant ended the conversation because the Detective thought he killed Lemieux. The defendant then returned to the police station and was arrested. Following his arrest, during his incarceration, the defendant spoke with several witnesses and wrote several letters concerning Lemieux. He initially denied killing Lemieux, but later said he needed to kill in defense of himself or Pierre. The defendant was indicted for first-degree murder and was found guilty. After trial, the defendant learned of information leading him to believe that the State had withheld information concerning Gomez’s cooperation with the Attorney General’s (AG’s) office and that Gomez had committed perjury. The defendant filed motions for a new trial, for a Richards hearing, and to pierce the attorney-client privilege. All motions were denied. The Supreme Court accepted the defendant’s discretionary appeal on those ruling along with the defendant’s arguments from the appeal of his first-degree murder conviction.

The Court held that the jury instruction requiring reasonable necessity for the defensive use of deadly force was not erroneous. The jury instruction regarding provocation of the attacker’s use of force was not a structural error because the instruction did not effectively deny the defendant the jury’s determination as to a factual element of the offense. Even if the instruction allowing the jury to find the State had disproved the defense if it proved provocation by a third person was erroneous, there was sufficient evidence to conclude that the defendant’s conviction was based upon the jury’s finding that the State had proven all elements of the offense beyond a reasonable doubt.

The Court held that even if the admission of statement as to what Lemieux told a witness about the defendant was in error, its admission was harmless and merely cumulative as there was ample evidence of the animosity between the defendant and victim.

The Court agreed that the undisclosed letter from the AG’s office that discussed consideration in sentencing Gomez based upon his attempts to cooperate with the State was favorable. The Court also held that the knowledge of any attorney in the criminal bureau of the AG’s office should be imputed to the State for purposes of determining whether the State "knowingly withheld" exculpatory evidence. The Court held that it would review de novo, as a mixed question of law and fact, whether the State demonstrated beyond a reasonable doubt that the nondisclosed, exculpatory evidence was material and that such evidence would not have effected the verdict. After this de novo review, the Court determined that the undisclosed evidence would not have altered the defense counsel’s strategy and there was other overwhelming evidence of premeditation before the jury.

With respect to the defendant’s claims that he was entitled a new trial because of Gomez’s perjury with respect to his plea agreement and new evidence disclosed by Gomez, the Court held that the record supported the trial court’s conclusions and findings that there was no false testimony by Gomez. The trial court was also correct in concluding that the purported new evidence was not of a character that would alter the result upon retrial. The Court held that even if Gomez committed perjury at trial and his entire testimony was excised, there was still a wealth of evidence from which the jury could have found premeditation and deliberation.

Duggan, Hicks and Lynn, JJ concurred, Dalianis, CJ concurred in part and dissented in part. Michael A. Delaney, attorney general and Susan P. McGinnis, senior assistant attorney general, for the State. Christopher M. Johnson, chief appellate defender, for the defendant.

State v. John M. French, No. 2010-537
December 14, 2011
Reversed and remanded
  • Whether the trial court erred in suspending a deferred sentence at the end of the deferral period when the original sentencing order provided only for imposition of the deferred sentence or termination.
In 1996, the defendant pleaded guilty to two counts of felonious sexual assault. On indictment 95-S-384, the defendant was sentenced to 12 months stand committed. On indictment 95-S-385, the defendant was sentenced to 3 ½ - 7 years in the Prison, all deferred seven years, concurrent with the sentence on 95-S-384. The sentencing order included language that 30 days prior to the expiration of the deferred period, the defendant was to petition the court to show cause why the deferred commitment should not be imposed. Failure to petition within the time period would result in imposition of the deferred commitment without further hearing.

After a probation violation and brief incarceration, the defendant remained in residential treatment for the remaining seven-year deferral period. In 2003, the defendant moved to suspend his deferred sentence. The superior court denied his request and deferred his sentence for another seven years subject to the same original requirements. The defendant remained in residential treatment for the additional seven-year deferral period. In 2010, the defendant moved to terminate his deferred sentence. The trial court suspended the defendant’s deferred sentence for seven years, subject to the terms and conditions set out in the original mittimus of 1996.

On appeal, the defendant argued that the trial court’s decision to suspend his sentence for an additional seven years violated his due process because he was never put on notice that if he successfully completed all terms of the deferral, the court could nonetheless thereafter suspend his sentence. The Court agreed. The original sentence contained no provision allowing for suspension of the defendant’s sentence.

Andrew R. Schulman for the defendant. Michael A. Delaney, attorney general, and Nicholas Cort, assistant attorney general for the State.

State v. Adam Mentus, No. 2010-017
December 14, 2011
  • Whether the trial court erred in providing the defendant with only $1,200 of the $3,000 he requested to hire a firearms expert
  • Whether the trial court erred in overruling the defendants objection to the State’s closing argument
The defendant purchased a gun and went to a friend’s house where he and four others, including the victim, Deirdre Budzyna, decided to go shooting. The defendant put a clip of ammunition into the gun, grabbed additional ammunition, and put the gun into his left pocked. Budzyna got into the driver’s seat; the defendant sat behind her. The defendant reached into his pocket and retrieved the gun. While holding the gun in his right hand, the gun fired, the bullet going through the driver’s seat and puncturing the victim’s lung. The defendant told the police that he wanted to put the gun under his seat, so he took the gun from his left pocket, transferred it to his right hand, and when he was bending down to place it on the floor, it fired. In his statements to the police, the defendant indicated that his finger was on the trigger or the trigger guard area, his finger hit the trigger, and he did not know there was a bullet in the chamber. At his manslaughter trial, the defendant contradicted his statements, stating that his finger was not on the trigger or trigger guard area, but that he might have hit the trigger, might have hit the slide, but did not pull the trigger.

Prior to trial, the defendant requested $3,000 pursuant to RSA 604-A:6 to hire an expert to examine whether the gun had misfired. The court allocated $1,200 for this purpose, but this was not sufficient to hire the defendant’s requested expert. Instead, the defendant hired a lawyer involved in litigation against gun manufactures, which the court ultimately ruled was not qualified to testify as an expert. Thus, no expert testified on the defendant’s behalf.

To succeed on his argument that the trial court’s $1,200 allocation was in error, the defendant "must demonstrate by clear and convincing evidence that his request" for the funds "included as complete a showing of necessity for the desired services as could be expected of him, and that the denial of funds substantially prejudiced him at trial." The Court held that the defendant was not substantially prejudiced because: the misfire theory was "substantially explored at trial"; the defendant’s versions of the shooting were not consistent with how his particular gun could have misfired; and, even if the defendant prevailed on his misfire theory, it did not necessarily follow that he would have prevailed on his defense as there was ample evidence that the defendant engaged in reckless conduct.

The defendant argued that the State mischaracterized the law during its closing argument by arguing that dropping a gun is reckless per se. The Court disagreed with the defendant’s argument, finding that the State’s closing argument simply was imploring the jury to find the defendant guilty of reckless manslaughter because he mishandled the gun.

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

State v. Michael B. Smith, No. 2010-685
December 14, 2011
  • Whether the defendant had notice that a violation of a term of the suspended misdemeanor convictions could cause imposition of the suspended felony sentences
  • Whether violating a ‘no-contact’ order constitutes ‘bad behavior’ justifying the imposition of a suspended sentence
  • Whether a sentence can be imposed before the court determines if conduct constitutes criminal or non criminal contempt
  • Whether there was sufficient evidence to find violation of a ‘no-contact’ order when the call never connected
The defendant appealed the trial court’s order imposing portions of previously suspended sentences for felony convictions. The defendant first pled guilty to six felony charges, each of which contained suspended prison sentences but resulted in the defendant being sentenced to 6 months stand committed. Three of the felony convictions were all suspended concurrently to the first three, but were to be served consecutively if imposed. Suspension was conditioned upon good behavior, compliance with all terms of the court’s order. The defendant then was sentenced to six months stand committed on the six misdemeanor convictions, concurrent to the initial three felony charges. The misdemeanors contained the same suspension language as the felony sentences, but included additional language prohibiting contact with Danyelle Nichols.

While incarcerated, the defendant attempted to call Nichols but the jail phone system blocked his call. The State moved to impose all six felony convictions, arguing that the phone call violated the provision requiring ‘good behavior’. The court imposed a portion of three of the felony convictions.

The Court held that violation of a sentence can constitute indirect criminal contempt, that criminal contempt is criminal conduct, and indirect criminal contempt can violate a condition of good behavior order. The Court disagreed that the trial court needed to have a separate hearing to determine whether the defendant’s conduct was criminal or a violation-level offense. The Court clarified that conviction of a crime is not an imposition prerequisite; rather, committing a crime (as proven by a preponderance of the evidence) is sufficient. Here, the State met that burden. The Court held that even though the phone call was blocked, there was sufficient evidence to constitute "attempt". The Court clarified that when a condition of the defendant’s suspended sentence requires that he refrain from non-criminal conduct, the order must be specific in what non-criminal conduct could cause sentence imposition. However, because of case law that violation of a court order is criminal conduct, the order did not need to specifically include the violation of any sentence could cause the imposition of the suspended sentence.

Lisa L. Wolford, assistant appellate defender, for the defendant. Michael A. Delaney, attorney general and Nicholas Cort, assistant attorney general, for the State.

State v. Robert Towle, No. 2010-190
December 14, 2011
Reversed & remanded
  • Whether trial court violated his constitutional rights by failing to treat his statements made during the colloquy as a motion to proceed pro se.
The defendant was charged with four counts of aggravated felonious sexual assault and four counts of criminal liability for the conduct of another. At the final pre-trial conference, the defendant’s attorney sought and received a four week continuance. The attorney then informed the court that the defendant believed the attorney’s recent election as mayor of Somersworth created a conflict of interest. During a colloquy between the court and the defendant, the defendant explained that because he had only met with his attorney once, he needed more time to prepare the case for trial. The judge denied his motion for new counsel and denied his request for a continuance beyond the four weeks. The defendant then clarified that he was not requesting for a new appointment of counsel and stated that he had argued that the attorney had a conflict of interest because he wanted to proceed pro se. The court stated that it was not removing the defendant’s attorney.

On appeal, the defendant argued that the trial court violated his constitutional rights by failing to treat his statements made during the colloquy as a motion to proceed pro se. Because of the fundamental nature of the right to counsel, the Court will respect a waiver of the right to counsel only if the defendant has evinced an understanding of the right and has asserted an unequivocal desire to relinquish it. There is no formula to invoking the right to self-representation. The defendant’s request was timely, affirmative and unequivocal, even though it was conditional. The defendant was asserting that if the court would not dismiss his lawyer or grant a continuance, then he wanted to represent himself. The Court held that a conditional request is not equivocal.

Conboy, J. concurred, Lynn, J. concurred specially, Dalainis, C.J., with whom Hicks, J., joined, dissented. Stephanie Hasuman, assistant appellate defender, for the defendant. Michael A. Delaney, attorney general and Nicholas Court, assistant attorney general, for the State.

State v. Empire Automotive Group, Inc ., No. 2011-154
December 28, 2011
Affirmed & Remanded
  • Whether the trial court erred in denying Defendant’s motion to dismiss because Defendant is exempted from being indicted by the NH Consumer Protection Act (CPA) because they are licensed by the NH Banking Department.
This is an interlocutory appeal from the ruling of the Superior Court denying Defendant’s motion to dismiss two felony violation indictments. The defendant is licensed by the NH Banking Department pursuant to RSA chapter 361-A, as a seller of motor vehicles subject to retail installment sales contracts. On May 20, 2010, Defendant was indicted on two counts of violating the CPA by allegedly placing inspection stickers (indicative of having passed inspection) on two automobiles sold to consumers under installment sales contracts when the Defendant knew the vehicles had not passed required emissions test.

The Defendant argued that they are exempt from charges being filed by the CPA because its trade and commerce of sale of motor vehicles pursuant to retail installment contracts is subject only to the jurisdiction of the bank commissioner. The Court disagreed. However, the Court held that Defendant’s true trade and commerce involved the sale of motor vehicles. Because the issue had nothing to do with retail installment contracts, but instead with the fraudulent conducted alleged in the indictments (which is regulated by the CPA and not the banking department).

W. Michael Dunn & Paul S. Reuland for the Defendant. Constance N. Stratton, senior attorney general, for the State.

Employment Law

Appeal on Ellen St. Louis, No. 2010-531
December 8, 2011
  • Whether the New Hampshire Department of Employment Security (DES) Appellate Board erred in denying her claim for unemployment benefits.
Since 2004, Petitioner was working for Insight Technology in various assembly positions, which, at times, required soldering work. She regularly received good performance reviews until March of 2009, when she received her first disciplinary notice. Subsequently, Petitioner took medical leave where she was diagnosed with several medical conditions. On May of 2009, Petitioner’s doctor released her to return to employment without restrictions. About a month after her return, she received another disciplinary notice and was later terminated based upon her refusal to continue soldering, which she alleged the fumes caused headaches, shakes, coughs and difficulty breathing.

Based on her performance, which was deemed as misconduct and affirmed by the DES Appeal Tribunal and affirmed by the board, Petitioner was denied unemployment benefits. Court found no error because the record supports the determination that the Petitioner was terminated for misconduct.

Leslie C. Nixon & Kirk C. Simoneau, for the defendant. Michael Delaney, attorney general & Karen Schlitzer, assistant attorney general, for the State.

Evidence Law

State v. Ruggiero, No. 2010-564
December 28, 2011
  • Whether the trial court erred when it allowed Audio/video recordings legally obtained in a sister state as admissible under NH’s wiretap statute
The Defendant was convicted on twelve counts of falsification physical evidence. Specifically, after obtaining a restraining order against her former Husband, Defendant registered a cell phone and sent threatening messages to herself, falsely reporting to police that her former Husband had sent them.

On appeal, Defendant argued that NH law controls with regard to the audio / video recordings that took place in South Carolina violating RSA 570-A:6 (wiretap statute). Specifically, NH law requires consent of all parties before a recording is made, but South Carolina does not. Court concluded that the interceptions did not violate the RSA because they were intercepted and originated in South Carolina, not NH, where such recording is lawfully allowed.

Mark L. Sisti, for the defendant. Michael Delaney, attorney general & Nicholas Cort, assistant attorney general, for the State.

State v. McDonald, No. 2010-235
December 28, 2011
  • Whether the trial court erred when it:
    • Allowed the State to present certain lay opinion testimony,
    • Declined to give the Defendant’s requested self-defense jury instruction, &
    • Prohibited the Defense from referring to the aggravated felonious sexual assault status in its closing argument
During his first-degree murder trial, the defendant argued that he killed his landlord after he woke up to find his landlord’s mouth on his penis. After killing him, the defendant, while posing as his landlord, traded the landlord’s vehicle for another vehicle, motorcycle, and cash and then drove to Vermont, where he was captured.

On appeal, the Defendant took issue with certain opinion testimony of New Hampshire State Police Sergeants with regard to the police interrogation. The Defendant argued that the officers’ interpretations and observations of the genuineness of his demeanor and body language are inadmissible opinion evidence that comment on the credibility of the witness. The Court agreed that the officer’s statements should not have been admitted because the "testimony communicated to the jury his doubts about the defendant’s overall credibility." Nonetheless, the Court ruled that the admission of the Officer’s opinion testimony into evidence was harmless beyond a reasonable doubt due to the rest of the evidence.

The Defendant also argued that the trial court erred by denying his request for an amended jury instruction and prohibiting him from referring to aggravated felonious sexual assault statute in his closing. Defendant sought a jury instruction on self-defense that explained the requirements of the statute, but omitted the words "forcible sex offense." Trial court declined to eliminate the statutory term "forcible" from its instructions, because the term has meaning. The Court affirmed the trial courts ruling. The Court ruled that no definition of the term "forcible sex offense" was required because the phrase has "commonly understood ordinary meaning, rather than a technical legal meaning."

Lisa L. Wolford, assistant appellate defender, for the defendant. Michael Delaney, attorney general & Susan P. McGinnis, senior assistant attorney general, for the State.

Real Estate

Claire Crowley & a. v. Town of Loudon, The Ledges Golf Links, Inc., v. Claire Crowley
December 8, 2011
Affirm in part, vacate in part, and remand
  • Whether the superior court correctly applied the required balancing test when holding that there was no "occasion" to lay out a public road
Green View Drive is located in Loudon and provides access to a portion of the golf course operated by The Ledges and to the homes owned by the Petitioner residents. Loudon has classified Green View Drive as a private driveway. Before Green View Drive was built, the golf course property, then owned by Ms. Cowley and her husband, was sold to the Loudon Country Club, Inc. Mr. Crowley petitioned the planning board to approve a residential subdivision on his land, which surrounded the gold course. The planning board approved his subdivision and the approved plan included an "access road to be privately maintained." The access road later became Green View Drive.

The country club sold the golf course property to The Ledges. At some point, while constructing Green View Drive, Mr. Crowley mistakenly located a portion of the road on golf course property. As a result, he entered into a May 2000 settlement agreement that granted to the Ledges an easement for the Ledges to have use of Green View Drive for all golf purposes, that each party would have full use of the road to access the party’s real property, and that each would share equally in the cost of maintaining and repairing Green View Drive. Later, the Crowleys and The Ledges entered into an easement agreement in consideration of" the May 2000 settlement agreement. In the easement agreement, the Crowleys granted the Ledges "a permanent easement…to repair, maintain, and/or replace" on the Crowley’s property, including Green View Drive, "any portion of the Golf Course Infrastructure", defined as "any water, electrical, or similar system or portion thereof…presently located" on the Crowley’s land. The Crowley’s then entered into another easement agreement in which the Crowley’s granted to the Ledge’s a permanent easement to use for all golf course purposes.

Ms. Crowley and the residents petitioned the town to accept Green View Drive as a town road. This petition was denied. Ms. Crowley and the residents then petitioned the superior court to lay out Green View Drive as a public road. The Ledges then moved to intervene and brought a quiet title action against Ms. Crowley. The trial court consolidated the matters and held that there was no "occasion" for laying out Green View Drive as a town road and granted The Ledge’s petition in part. The trial court held that Ms. Crowley is responsible for the continued maintenance of the road, but that she continues to be entitled to recover road maintenance costs from Green View Drive residents. Ms. Crowley did not participate in the appeal.

The Court held that both easement agreements granted The Ledges a "permanent easement" on the Crowley’s property. Although the settlement agreement intended for Mr. Crowley to grant The Ledges an easement "for all golf course purposes", Mr. Crowley did not follow through in the easement agreements. The superior court erred when defining "infrastructure", however, to permit Green View Drive to be used for cart paths. The Court vacated and remanded this portion of the order to determine what the parties mutually understood the phrase "similar systems" to mean.

The Court disagreed with the residents’ argument that an "occasion" exists for laying out Green View Drive as a public road because the town did not comply with RSA 674:41, I(d) (2008). The Court held, in part, that because Green View Drive a street on a subdivision plat, which the planning board approved, RSA 674:41 (1)(b)(2) 2008 governed the building permits at issue. The trial court did not commit error when it considered Green View Drive’s status as an emergency lane when performing the balancing test to determine whether the "occasion" exists for laying out the drive as a public road. Because the issue was not before the trial court, the order on payment and maintenance obligations was vacated. The residents’ remaining arguments were not addressed.

Michael R. Callahan and Samantha D. Elliot on the brief and Mr. Callahan orally for the Petitioners Residents of Green View Drive. Hebert & Dolder for Claire Crowley. Barton L. Mayer on the joint brief and orally for the Respondent Town of Loudon. R. James Steiner on the joint brief and orally for The Ledges Golf Links, Inc.

Christopher Ruel v. New Hampshire Real Estate Appraiser Board, No. 2010-828
December 15, 2011
  • Whether the Board’s disciplinary hearing was on a ‘complaint’ or ‘grievance’ against the Plaintiff
  • Whether the Board’s lack of quorum required the superior court to remand for a new hearing or required outright dismissal of the claim
Frederick hired Ruel, a licensed real estate appraiser, to appraise his Kingston property. The NH DOT sought to take Frederick’s property by eminent domain and Frederick used Ruel’s appraisal in negotiating settlement with the DOT. DOT performed its own appraisal and valued the property at approximately $50,000 less than did Ruel. After the settlement was finalized, a DOT supervisor filed a grievance against Ruel with the NH Real Estate Appraiser Board (Board). The Board sent Ruel a proposed settlement and then granted Ruel’s request to extend the deadline to respond to the settlement offer. After Ruel rejected the settlement offer, a hearing was held after which Ruel was ordered to pay a fine and to attend two appraisal courses.

Ruel sought certiorari review in the superior court. The court rejected most of Ruel’s arguments, but remanded the case to the Board for another hearing because the Board conducted a portion of the disciplinary hearing and issued its final order without a quorum of its membership participating.

The Court disagreed with the Board’s qualification that the claims against Ruel were a grievance instead of a complaint. The Court held that, based upon statutory interpretation, that once the Board has abandoned its efforts to resolve a grievance informally through settlement and has decided to initiate a formal disciplinary hearing, such action converts the grievance to a complaint. The Court held that there are no standing limitations on who may file a grievance. In assuming, without deciding, that the Board failed to meet two statutory time requirements, the Court held that this delay did not deprive the Board of its power to proceed with the disciplinary process. Ruel did not meet his burden to show that the delay in the Board’s decision caused him material prejudice. The Court determined there was no authority to support Ruel’s contention that the lengthy delay and lack of quorum required dismissal rather than remand. The Court also disagreed with Ruel’s argument that a witness should not have testified because he was not an expert. Because administrative agencies are given broad discretion in determining evidence admissibility and the rules of evidence do not apply to an agency’s disciplinary hearings, the Board did not act arbitrarily or capriciously in admitting the witness’ testimony and report.

Thomas P. Colatuono for the Plaintiff. Michael A. Delaney, attorney general, Lynmarie C. Cusack, assistant attorney general, and Kristen A. Fiore on the memorandum of law, and Elyse S. Alkalay orally for the defendant.

Thomas Morrissey & a. v. Town of Lyme & a., No. 2010-661
December 8, 2011
  • Whether the trial court erred in dismissing the Petitioners claims
Post Pond is a pond in Lyme held in trust by the State for public use. The Petitioners own properties with frontage on Post Pond and the west side of the Clay Brook wetlands. The Town owns property on the east side of the wetlands as well as a contiguous parcel with frontage on Post Pond consisting of a recreation area.

The DES granted the Lyme Conservation Commission (Commission) a permit for the installation of a "beaver pipe" through the controlling beaver dam in the wetlands. Later, two additional beaver pipes were installed in the wetlands. The Commission did not obtain a permit and did not notify the landowners of the installation of the two pipes. The Town breached beaver dams on one of the Petitioner’s property, leaving refuse and debris deposits in the wetlands on her property. The Petitioners filed a petition in equity and writ of mandamus alleging that the Town’s actions adversely affected their properties and property rights and disrupted the entire wetlands ecosystem. The Petitioners also claimed that the State had violated certain statutes and the public trust doctrine. The trial court granted the Respondent’s motions to dismiss.

The Court held that the lower court did not err in dismissing the private nuisance claim for eight of the Petitioners as they were not listed in the nuisance allegations. The lower court was correct in dismissing the remaining claims as draining water from a shallow waterfront, thereby converting submerged wetlands to mud, compromising water access, and interfering with the Petitioners right of enjoyment of their property were insufficient to constitute private nuisance against the Town. The trial court correctly dismissed the takings claim as the same allegations failed to support the claim. The Court disagreed with the Petitioners’ argument that Paragraph 124 and 125 of the State environmental statutes permit the Petitioners to seek a declaratory judgment. The Court held that the Petitioners’ waived their argument that the Town’s conduct of installing the beaver pipes without a permit and without notice violated statute because the Petitioners failed "to make more than [a] passing reference to it in their brief".

Gregory E. Michael and Christopher G. Aslin on the brief and Mr. Michael orally for the Petitioners. Judith E. Whitlaw on the brief and orally for the Town of Lyme. Michael A. Delaney, attorney general, Daniel J. Licata, assistant attorney general, on the memorandum of law and orally, for Respondents New Hampshire Department of Environmental Services and New Hampshire Fish and Game Department.

Melissa S. Penson

Enrique F. Mesa, Jr.
Enrique F. Mesa Jr and Melissa S. Penson are a married legal team who practice in Manchester and Nashua, respectively. Enrique is licensed in Florida and practices solely immigration law in Manchester. Recently, he was elected Chair of NH Governor’s Advisory Commission on Latino Affairs. Melissa is a member of the New Hampshire, Massachusetts and Florida bars and practices criminal, family and appellate litigation with Smith-Weiss, Shepard in Nashua.

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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