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Bar News - March 16, 2012

NH Supreme Court At-a-Glance - February 2012


Civil Procedure

Josephine A. Lamprey v. Britton Construction, Inc.
Argued: October 13, 2011
Affirm in part, reverse in part and remand
  • Whether the trial court erred as a matter of law when it dismissed her Writ and denied her request to amend her Writ upon dismissal of her claims.
The plaintiff hired the defendants to design and build her home. DeStefano was the architect; Britton was the general contractor; and Sherwood was the mason who installed the home’s extensive stonework, including a stone veneer, terrace and stone chimneys. The plaintiff began living in the house in November 2001, but never obtained a certificate of occupancy. Within one year, water damage appeared on the wood floors. In 2006, the plaintiff hired Sherwood to repair loose stones on her terrace. In 2008, again at the plaintiff’s request, Sherwood repaired her chimney. In 2010, when the plaintiff was replacing her stone terrace with granite, the mason in charge of the replacement noticed problems with the home’s stonework requiring significant repairs. As a result, the plaintiff sued the defendants, alleging negligence and breaches of warranty in her home’s construction. Britton requested dismissal pursuant to the statute of limitations for personal actions. See N.H. Rev. Stat. Ann. § 508:4 Sherwood moved to dismiss, arguing that the construction statute of repose also barred the plaintiff’s claims. The plaintiff responded by arguing, among other things, that the statutes should be tolled because Sherwood had fraudulently concealed her home’s masonry problems. She also moved to amend her writ to add more facts supporting her fraudulent concealment claim and to add new causes of action. Ultimately, after a hearing addressing the application of the statute of repose, the plaintiff’s claims were dismissed under the statutes of repose and limitations, and the plaintiff’s motion to amend her writ was denied.

The plaintiff appealed arguing that the trial court erred by dismissing her case under the statutes of limitations and repose and denying her motion to amend. The Court upheld the granting of the Motion to Dismiss because the facts as plead did not constitute a basis for relief. However, the Court found that the trial court unsustainably exercised its discretion by not permitting the plaintiff to amend her writ to add fraudulent concealment allegations related to the bent masonry ties that concealed defects in her home’s stone veneer as against Britton and Sherwood.

McLane Graf Raulerson & Middleton, of Manchester (Jeremy T. Walker and Joel T. Emlen on the brief, and Mr. Walker orally), for the plaintiff.

Bouchard, Kleinman & Wright, of Manchester (Nicholas D. Wright on the brief and orally), for defendant Britton Construction, Inc.

Boyle, Shaughnessy & Campo, of Manchester (Peter L. Bosse and Elsabeth D. Foster on the brief, and Ms. Foster orally), for defendant Dave Sherwood.

Donovan Hatem, of Boston, Massachusetts (John W. Dennehy and Gregory M. Sargent on the brief, and Mr. Dennehy orally), for defendant DeStefano Architects, f/k/a Lisa DeStefano

Consumer Protection

Jo Anne Rainville v. Lakes Region Water Company, Inc.
Argued: October 19, 2011
  • Whether the Superior Court erred in concluding that the Defendants are not exempt from the Consumer Protection Act pursuant to N.H. Rev. Stat. Ann. § 358-A:3 to the extent the Defendants allegedly misrepresented that the water they provided was safe for use and consumption?
The Defendants were accused of provided unsafe water to the Plaintiffs. The Plaintiffs filed suit against the Defendants alleging that the Defendants violated the New Hampshire Consumer Protection Act. The Court found that the Public Utilities Commission ("PUC"). The New Hampshire Supreme Court found that the PUC has "general supervision of all public utilities and the plants owned, operated or controlled by the same." See N.H. Rev. Stat. Ann. § 374:3 (2009). Generally, any entity that owns or operates a water system or part thereof is deemed a "public utility." In this case, it was undisputed that Lakes Region Water Company, Inc., which sells and distributes water to the public, is a "public utility" subject to the PUC’s jurisdiction. Thus, the trade or commerce in which LRWC is engaged – selling and distributing water to the public – is subject to the jurisdiction of the PUC.

N.H. Rev. Stat. Ann. § 358-A:3, I, exempts from the CPA:

Trade or commerce that is subject to the jurisdiction of the bank commissioner, the director of securities regulation, the insurance commissioner, the public utilities commission, the financial institutions and insurance regulators of other states, or federal banking or securities regulators who possess the authority to regulate unfair or deceptive trade practices. This paragraph includes trade or commerce under the jurisdiction of, and regulated by, the bank commissioner pursuant to RSA 361-A, relative to retail installment sales of motor vehicles.

(emphasis added). The New Hampshire Supreme Court ruled that the trial Court erred as a matter of law when it found that the Defendants could be sued under the Consumer Protection Act. As a result, the decision was vacated and remanded to the trial court for further proceedings.

Cooper Cargill Chant, of North Conway (Christopher T. Meier on the brief and orally), for the plaintiffs.

Nelson, Kinder, Mosseau & Saturley, of Manchester (Richard C. Nelson and Adam J. Chandler on the brief, and Mr. Nelson orally), for the defendants.

Criminal Law

Donald Gentry v. Warden, Northern New Hampshire Correctional Facility
Argued: January 18, 2012
  • Whether the trial court erred as a matter of law when ruled that N.H. Rev. Stat. Ann. § 651-A:19 does not permit the parole board to credit the time the petitioner spent in confinement between his arrest and revocation of his parole against his ninety-day recommitment period.
The petitioner was arrested on a parole violation warrant on October 13, 2010, and confined in prison until he received a parole revocation hearing on December 7, 2010. Following the hearing, the parole board recommitted the petitioner to prison for ninety days pursuant to RSA 651-A:19, I. The petitioner requested that the fifty-five days he spent in confinement before the hearing be credited against the ninety-day recommitment period. The board denied that request, and the superior court upheld the board’s decision, ruling that "inmates are not entitled to pre-hearing confinement credit against the 90-day recommitment period but against only the maximum sentence." This appeal followed.

As amended by Laws 2010, 247:10, RSA 651-A:19, I, provided:

A prisoner who is recommitted shall serve 90 days in prison before being placed back on parole or the remainder of his or her maximum sentence, whichever is shorter. The time between the return of the parolee to prison after arrest and revocation of parole shall be considered as time served as a portion of the maximum sentence.

The petitioner argued that his pre-hearing confinement should have been credited toward the ninety-day recommitment period because the term "maximum sentence" in the second sentence of RSA 651-A:19, I necessarily includes the ninety-day recommitment period. He contended that the distinction drawn by the trial court between the ninety-day recommitment period and the maximum sentence "is neither one made in the statute nor cognizable at law."

The New Hampshire Supreme Court disagreed. While Court agreed that some parolees will serve more time in confinement than others based solely on how quickly after arrest they receive a revocation hearing, the plight of parole violators who must wait longer for a hearing is not meaningfully different from that of parolees who are arrested and detained for a violation but are ultimately exonerated at their revocation hearings. (emphasis added). Like the petitioner, parolees in the latter category receive nothing more than credit against the maximum sentence for their pre-hearing incarceration – despite the fact that, in retrospect, it has been determined they should not have been re-incarcerated at all. Accordingly, the Court found that the trial court was correct in its interpretation of the statute.

Lisa L. Wolford, assistant appellate defendant, of Concord, on the brief and orally, for the petitioner.

Michael A. Delaney, attorney general (Suzanne M. Gorman, assistant attorney general, on the brief and orally), for the defendants.

Family Law

In the Matter of Karen Schaulin-Viviers and Norris Viviers
Argued: October 19, 2011
Vacated and Remanded.
  • Whether the trial court erred when it ruled that the respondent’s alimony obligation was not modifiable because the parties had agreed to lump-sum alimony, payable over a period of time.
The New Hampshire Supreme Court noted that the trial court had reached its conclusion that the respondent’s alimony obligation could not be modified relying upon cases from other jurisdictions, which distinguish between lump-sum alimony, also called "alimony in gross," and periodic alimony. Periodic alimony refers to monthly alimony awarded on the basis of need that has no fixed termination date, but, instead, terminates upon death or the obligee’s remarriage. It is modifiable based upon the changes in the parties’ financial conditions or needs. By contrast, lump-sum alimony or alimony in gross, is a fixed and irrevocable amount, that may be payable either in a single lump sum or in fixed periodic installments.

The New Hampshire Supreme Court prior to this case had not opined as to whether New Hampshire law recognizes the concept of non-modifiable alimony in gross. However, the Court had held that the court may modify an agreement between the parties or a divorce decree awarding a lump sum as alimony, notwithstanding the obligee’s promise not to seek additional alimony. The Court decided not to resolve the issue because even under the law of those jurisdictions that recognize non-modifiable alimony in gross, the alimony in this case did not qualify. Here, according to the parties’ permanent stipulation, the alimony payments were includable as taxable income to the petitioner and were tax deductible by the respondent. This is inconsistent with treating the alimony as "alimony in gross," but is consistent with treating it as "periodic alimony." Alimony in gross is not a taxable event to the payee," while "periodic alimony is taxable to the payee." Additionally, the respondent’s obligation had been modified twice, once by agreement in October 2008, and again pursuant to a 2009 court order, which neither party appealed. The Court found that at the very least, these aspects of the parties’ agreement and conduct create an ambiguity as to whether the alimony awarded was alimony in gross or periodic alimony. Accordingly, the New Hampshire Supreme Court vacated the trial court’s determination that the respondent’s alimony obligation was non-modifiable and remanded the case for further proceedings consistent with its opinion.

Tober Law Officers, of Portsmouth (Stephen L. Tober and Katherine J. Crawford, on the brief, and Ms. Crawford orally), for the petitioner.

Wiggin & Nourie, of Manchester (Doreen F. Connor on the brief and orally), for the respondent.

Tort Law

Jason Antosz v. Doree Allain
Argued: January 18, 2012
Reverse and Remand.
  • Whether N.H. Rev. Stat. Ann. § 507:8-h applies to volunteer firefighters.
  • Whether N.H. Rev. Stat. Ann. § 507:8-h bars the Plaintiff’s negligence claim.
The defendant owns property located at 87 North River Road in Epping. On January 29, 2008, the Town of Epping Fire Department was called to the defendant’s property because of a fire involving the home’s hot water heater. Jason Antosz, a volunteer firefighter with the Epping Fire Department, was among the firefighters who responded to the call.

Mr. Antosz arrived at the scene of the fire, parked his vehicle on the street, and walked up the driveway to speak with the lieutenant on the scene. The lieutenant instructed him to walk back down the driveway and retrieve a fire extinguisher from a fire truck parked on the street. The driveway was covered with packed snow and ice, and as Mr. Antosz walked down it, he slipped and fell and was seriously injured.

The plaintiffs filed suit against the defendant. Mr. Antosz claimed negligence, alleging that the driveway was in an unsafe and unreasonable condition as a result of the defendant’s failure to remove snow and ice from it, and that the condition of the driveway caused his fall and resulting injury. Ms. Antosz claimed loss of consortium. The defendant moved for summary judgment arguing that Mr. Antosz’s claim is barred by N.H. Rev. Stat. Ann. § 507:8-h (2010) (setting forth the "Fireman’s Rule"). The plaintiffs objected, arguing that N.H. Rev. Stat. Ann. § 507:8-h does not apply to volunteer firefighters, or alternatively, that even if it does, under the statute’s provisions, Mr. Antosz’s negligence claim is not barred. The court granted the defendant’s motion. The plaintiffs filed a motion for reconsideration, which the trial court denied.

RSA 507:8-h now provides:

Firefighters . . . shall have no cause of action for injuries arising from negligent conduct which created the particular occasion for the [firefighter’s] official engagement. However, this section does not affect such [firefighter’s] causes of action for unrelated negligent conduct occurring during the [firefighter’s] official engagement, or for other negligent conduct . . .

Here, the New Hampshire Supreme Court found that the New Hampshire statute did not bar the Plaintiff’s claims. Contrary to the defendant’s arguments and the trial court’s ruling, the language of the statute does not bar all negligence claims based upon injury suffered during the performance of firefighting duties. Rather, the plain language of N. H. Rev. Stat. Ann. § 507:8-h bars only suits "arising from negligent conduct which created the particular occasion for the [firefighter’s] official engagement." (Emphases added.) Because the New Hampshire Supreme Court found that the Plaintiff’s negligence claim was not barred by N.H. Rev. Stat. Ann. § 507:8-h it did not need to decide whether N.H. Rev. Stat. Ann. § 507:8-h applies to volunteer firefighters.

Boynton, Waldron, Doleac, Woodman & Scott, (Christopher E. Grant on the brief and orally), for the Plaintiff.

Backus, Mayer & Branch, of Manchester (Barry M. Scotch on the brief and orally), for the Defendant.

Steven Ford v. New Hampshire Department of Transportation
Argued: January 18, 2012
  • Whether the town could be held liable in negligence for an accident occurring on road which was a state highway.
  • Whether the Town had a statutory duty imposed by N.H. Rev. Stat. Ann. § 507-B:2 (2010), N.H. Rev. Stat. Ann. § 231:90 to :93 (2009), and/or by N.H. Rev. Stat. Ann. § 21-P:44 (Supp. 2011) to warn motorists about the inoperable lights.
At approximately 11:30 p.m. on December 12, 2008, the vehicle in which the plaintiff was a passenger was struck by another vehicle at the intersection of Routes 111 and 28 in Windham. Earlier, a severe ice storm had caused a power outage that had rendered the street and crossing lights at this intersection inoperable.

Several hours before the accident occurred, both DOT and the Town had received notice that the intersection’s lights were inoperable because of the ice storm. At approximately 6:42 a.m., Windham police notified DOT of a traffic hazard in the area. At approximately 1:08 p.m., a motor vehicle accident at the same intersection was reported to Windham police, who later reported that there were "[n]o working lights at this intersection due to ice storm power outages."

The accident caused the plaintiff to suffer severe injuries, and he sued the Town and DOT for negligence. Both defendants moved to dismiss. The trial court dismissed the claims against both defendants. The Plaintiff appealed.

The New Hampshire Supreme Court found that a town could not be held liable in negligence for an accident occurring on road which was a state highway, because the town had no control over the road, no duty to repair and maintain it, and, therefore, no duty to warn of icy conditions on it. The New Hampshire Supreme Court also found that neither N.H. Rev. Stat. Ann. § 507-B:2 (2010), N.H. Rev. Stat. Ann. § 231:90 to :93 (2009), and/or by N.H. Rev. Stat. Ann. § 21-P:44 imposed any liability upon the town.

D’Angelo & Hashem, of Boston, Massachusetts (Stephen L. D’Angelo and Jay M. Wolman on the brief, and Mr. D’Angelo orally), and Cossingham Law Office, P.C., of Andover, Massachusetts (Thomas C. LaPorte on the brief), for the plaintiff.

Michael A. Delaney, attorney general (Kevin H. O’Neill, assistant attorney general, and Mark P. Hodgdon, senior assistant attorney general, on the memorandum of law, and Mr. O’Neill orally), for defendant New Hampshire Department of Transportation.

Devine, Millimet & Branch, of Manchester (Robert C. Dewhirst on the brief and orally), for defendant Town of Windham.

Christopher J. Somma

Christopher J. Somma, Esquire received his B.A. in Religion and Sociology from Bates College and a Juris Doctorate degree from the University of New Hampshire School of Law. He is currently employed at the Boston Office of Goodwin Procter LLP as an attorney in the Consumer Financial Services Litigation Department.

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