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Bar News - April 13, 2012


NH Supreme Court At-a-Glance - March 2012

By:

Administrative Law

Appeal of Erica Blizzard
No. 2011-187
March 9, 2012
Affirmed
  • Whether DOS lacked authority to suspend boat operation privileges because it failed to promulgate associated regulations;
     
  • Whether RSA 270-E:17 delegates legislative authority in violation of Part I, Article 37 of the NH Constitution;
     
  • Whether the hearing notice complied with Part I, Article 15 of the NH Constitution.
Respondent, Erica Blizzard, was piloting a boat on Lake Winnipesaukee when she crashed into an island, killing a passenger, and seriously injuring herself and another passenger. A jury convicted Blizzard of negligent homicide but not guilty of boating while intoxicated. Then, Department of Safety (DOS), pursuant to RSA 270-E:17, suspended Blizzard’s privilege to operate a boat for three years, finding a violation of RSA:270:29-a, which makes it a misdemeanor to operate a boat in a careless and negligent manner so that lives and safety of the public are in danger. DOS denied Blizzard’s rehearing motion.

On appeal, Blizzard contended that DOS lacked authority to suspend her boating privileges because it failed to promulgate regulations on the administration of RSA 270-E. The Court noted that it has consistently held that rule promulgation is not "necessary to carry out what a statute demands on its face." The Court explained that it focused more on whether the agency’s failure to adopt rules was both unfair and inconsistent with the statute-granting authority. The Court further explained that it first examines whether a statute has enough detail without agency regulation and then it examines whether the complaining party suffered harm as a result of the inadequate rules. The Court assumed that the statute in question was not sufficiently detailed, however, it upheld the suspension because Blizzard failed to complain that she was harmed by the lack of rules.

Next on appeal, Blizzard contended that the RSA 270-E:17 unconstitutionally delegated legislative authority. The Court reiterated its standard for unlawful delegation of legislative power, which is a failure of the statute to lay down basic standards and a reasonable definite policy for the administration of the law. The Court found that the statute incorporated by implication the standards and policies of RSA chapters 270, 270-A, 270-B and 270-E, and thus avoided an unlawful delegation of legislative power.

Blizzard further contended that the unlawful delegation stemmed from the fact that the statute did not prescribe lengths of revocation, which she claimed was consistent with precedent set in Guillou v. State, 127 NH 579. The Court rejected this argument. It held that even suspensions for life are constitutional muster if warranted. The Court indicated that it would continue to hold that there is no separation of powers doctrine if it found the presence of three factors: "the offense for which suspension could be imposed was clearly designated and only the length of suspension was left to the discretion of the agency; (2) the section had to be construed to require the exercise of sound discretion; and (3) there was an avenue for judicial review of suspension lengths to ensure their reasonableness." The Court did note that the DOS might still want to promulgate rules to avoid future hassles for the Court relative to determining what unjust or unreasonable suspensions are on appeal.

Finally on appeal, Blizzard contended that her due process right was violated because the notice she received failed to specify the statute her license was ultimately revoked by. The Court rejected this argument and noted that the notice she received was fair and reasonable given the circumstances. The Court focused on the fact that RSA 270-E:17 was referenced in the notice; also that Blizzard seemed to be well aware of the legal standards at the hearing and the implication of the applicability of RSA 270:29-a by RSA 270-E:17, the Court found the notice to be fair and reasonable.

HICKS, CONBOY and LYNN, JJ., concurred.

James H. Moir, Moir & Rabinowitz, Concord for the respondent. Michael A. Delaney, attorney general (Kevin H. O’Neill, assistant attorney general), for the NH Department of Safety.


Appeal of Hollis Education Association, NEA-New Hampshire
No. 2011-281
March 9, 2012
Affirmed
  • Whether the Public Employee Labor Relations Board (PELRB) erred by not including speech language pathologists and occupational therapists as members of the bargaining unit as defined in the collective bargaining agreement (CBA), as modified, between Hollis Education Association, NEW-NH (Association) and the Hollis School Board (Board).
The Association filed grievances with superintendent on behalf of three individuals whose employment status had been recently altered by the school district. It believed that the individuals’ job titles, speech language pathologists and occupational therapists, met the CBA’s definition of the bargaining unit it represents. The recognition clause of the CBA defined the bargaining unit as "certified full time teachers…" The superintendent denied the grievance claiming the individuals were not members of the bargaining unit. The Association then made a demand for arbitration. The Board filed a complaint with the PELRB stating that the Association had no right to file grievances or make a demand for arbitration on behalf of the individuals because they were not members of the bargaining unit. The PELRB ruled in favor of the Board. After the PELRB denied a motion for a rehearing, the Association filed the appeal to the Court, which affirmed the PELRB’s decision.

The Court found that no significant changes to the composition of the PELRB certified bargaining unit had been made since 1976, which included "certified teachers". The Court did not find the Association’s argument convincing that the term "certified teacher" included speech language pathologists and occupational therapists, despite their having to perform many of the same tasks as teachers. The Court’s opinion was also not swayed by parol evidence, which demonstrated the individuals in question had, prior to the filing of the grievances, been treated as if they were members of the bargaining unit by the school district. This included statements made by the superintendent that the individual’s contract was covered by the CBA. The Court stated that an employer or a union cannot unilaterally expand the scope of a bargaining unit by simply treating an employee as if they were in such unit. The Court found that the scope of a bargaining unit can be expanded pursuant to RSA 273-A:8, however, a petition to modify must be filed with and approved by the PELRB pursuant RSA 273-A:10.

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

Thomas M. Closson, Jackson Lewis, of Portsmouth, for the petitioner. James F. Allmendinger, of Concord, staff attorney, NEA-New Hampshire, for the respondent.


Appeal of Timothy Alexander & Appeal of NH Department of Health and Human Services
No. 2011-016 & 2011-018
March 23, 2012
Affirmed in Part Reversed in Part
  • Whether the Personnel Appeals Board (board) erred when it failed to reinstate petitioner Alexander to his position prior to termination by the Department of Health and Human Services.
     
  • Whether the board overstepped its authority when it overruled the HHS’s decision to terminate a probationary employee employment.
This was a consolidated appeal from decisions of the New Hampshire Personnel Appeals Board (board). Timothy Alexander appealed the board’s affirmance of his dismissal from employment with the New Hampshire Department of Health and Human Services (HHS) and the state appealed the board’s reinstatement of William Harris to his employment with HHS.

Alexander and Harris were youth counselors at a secure facility for serious, chronic and/or violent juvenile offenders. Alexander was a full time employee and Harris was a full time probationary employee. Alexander was terminated for using excessive force against a ‘resident’. Harris was terminated for not acting pursuant to HHS policy by not immediately reporting the incident he witnessed, not completing a written report and by not responding honestly during the investigation of the incident.

Alexander as a full-time employee had the burden of proof to show that the board’s decision was clearly unreasonable or unlawful, pursuant to RSA 541:13. Alexander made multiple arguments for reinstatement, none of which the Court found persuasive and affirmed the board’s decision to affirm his dismissal.

Alexander first argued that the board affirmed his termination on different grounds than what was contained in his termination letter. The Court found that NH Amin Rule, Per-A 207.12(b), allowed the board to consider all of the evidence in order to make its decision. The Court found that the termination letter did specify that Alexander did violate HHS’s policy of not using force in the first instance in order to de-escalate a situation. The Court found that the board’s finding that Alexander’s actions did not comport with HHS’s use of force policy alone was sufficient to affirm the termination. Alexander next argued that he was just trying to move the resident from an altercation with another youth counselor when he pushed him. The board found the claim unsupported by the evidence. The Court did not find the board’s decision unjust or unreasonable.

The Court also did not buy Alexander’s argument that the board did not comply with N.H. Admin. Rules, Per 1002.08(d), which requires an offer of a meeting with the "appointing authority" prior to termination. The evidence indicated that Alexander met with someone other than the appointing authority, nevertheless, the Court found that this issue was not properly preserved for appeal. Alexander next argued that the board violated RSA 541-A:31, IV by not allowing him to present a closing argument at the hearing. The Court also found that this issue was not preserved for appeal because Alexander’s counsel did not make a contemporaneous and specific objection at the hearing. The Court also found that the board’s failure to provide its decision within the statutorily mandated time limit did not provide Alexander with any remedy. Finally the Court found that Alexander did not have a protected property interest in his employment, therefore, his due process rights under the Fourteenth Amendment to the United States Constitution and Part I, Article 15 of the New Hampshire Constitution were not violated.

As a probationary employee, Harris’s appeal was treated as writ of certiorari, for which the scope of review was limited to whether the board acted illegally in respect to jurisdiction, authority or observance of the law, thereby arriving at a conclusion which could not be legally or reasonably made. The Court found that the board erroneously applied RSA 21-I:58, I to Harris, which applies only to "permanent" employees. The Court found that, unlike probationary employees, permanent employees have completed a working-test period and have been recommended for permanent appointment by the proper authority. Harris sought to estop the state from not using that statute because his termination letter stated that the statute applied. However, the Court found that a party may not assert equitable estoppel to avoid the application of a statute.

The Court next examined N.H. Admin. Rules, Per-A 207.12(a), which it held to be the proper authority for the board when dealing with an employee such as Harris. The rule provides for the standard of review for the board when examining the appointing authorities’ decision to terminate or not terminate a probationary employee. The Court pointed to Admin Rule, Per 1002.02(a), which states that the discretion to dismiss a probationary employee who fails to meet the work standard rests with the appointing authority, not the board. The Court then noted that the dismissal of a probationer must not be arbitrary, illegal, capricious or made in bad faith, but the courts will not interfere with a reasonable exercise of discretion by a department head or an administrative official. Therefore, once a board finds that a dismissal was not arbitrary, illegal, capricious or made in bad faith, it is not entitled to interfere with the appointing authorities discretion in terminating employment. In this instance the Court held that the board, after finding HHS’s decision to terminate not to be arbitrary or capricious, was not allowed to interfere with HHS’s exercise of discretion in terminating Harris’s employment.

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

Kristin H. Sheppe and Michael C. Reynolds, of Concord, for Timothy Alexander and William Harris. Michael A. Delaney, attorney general (Rosemary Wiant, assistant attorney general), for the State.


Administrative Law
SAFE Act

Jeffrey Frost & a. v. Commissioner, NH Banking Department & a.
No. 2011-121
March 16, 2012
Affirmed
  • Whether LLCs were a person engaged in the business of making or brokering mortgage loans by virtue of a single isolated transaction, thereby subjecting Frost, as agent, to Banking Department’s administrative proceedings.
The underlying dispute arose out of circumstances commencing in 2008. At the time, Frost was a Member and Member Manager of two NH LLCs, which were organized for the purpose of real estate acquisition, holding, and development. Each LLC seller financed real estate transactions to third parties. These were the only mortgage loans either LLC ever made. One of the mortgagors filed a complaint with the Consumer Protection Bureau after Frost instituted foreclosure proceedings against that mortgagor based on default. Frost was charged with four class A misdemeanors alleging criminal violations of RSA chapter 397-A (prohibiting, among other things, unlicensed mortgage banking).

The complaint was forwarded to the New Hampshire Banking Department (the Department), which uncovered the two mortgage transactions during its investigation. Frost, in the interim, applied for a loan originator license with the Department. Subsequently, the Department instituted administrative proceedings against Frost, for what it believed actions constituting unlicensed mortgage banking in violation of RSA 397-A:1, XVII(a), RSA 397-A:3, III, and/or RSA 397-B:1, IV-c. Instead of requesting a hearing with the Department, Frost sought a declaratory judgment in Superior Court. The Superior Court ruled that the Department did not have subject matter jurisdiction over Frost, and they appealed to the Court.

The Court majority ruled that the Department did have jurisdiction over Frost as a loan originator following his license application but that it did not have subject matter jurisdiction over petitioner based on the 2008 mortgage transactions. In reaching its decision the Court examined RSA chapter 397-A as amended to comport with the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (the SAFE Act), 12 U.S.C. § 5101, which enhanced consumer protection by requiring states to pass legislation establishing minimum standards for licensing and registration of state-licensed mortgage loan originators.

The Department relied on the doctrine of primary jurisdiction, which provides that a court will refrain from exercising its concurrent jurisdiction to decide a question until it has first been decided by the specialized administrative agency that also has jurisdiction to decide it. The Court majority ruled that a determination of the Department’s jurisdiction required statutory analysis, therefore, the trial court could, subject to its own discretion, properly resolve this legal issue.

The dissent acknowledged that the doctrine of primary jurisdiction is discretionary, however it maintained that in circumstances where agency action is pending, the trial court’s discretion is limited. The dissent’s primary concern was that the majority’s decision would open the floodgates to those who would prefer to head to court before exhausting all administrative remedies. The majority disagreed and claimed that this decision does not affect the law regarding exhaustion of administrative remedies. It found that the trial acted properly because at issue was a question of law, which courts may exercise discretion and hear the matter to a final order.

The Court next examined whether the trial court misinterpreted the provisions of RSA 397-A. The Department argued that the statute clearly gives it exclusive jurisdiction over all residential mortgage transactions which are not exempt under RSA 397-A:4. The Department argued that the LLCs’ mortgage loans were not exempt because they were not natural persons so licensure was required pursuant to RSA 397-A:4, II (exempting "[a]ny natural person making not more than 4 first mortgage loans within any calendar year with the person’s own funds and for the person’s own investment without an intent to resell such mortgage loans").

The Court examined the language of RSA 397-A:2, which provides in pertinent part that:

This chapter shall provide for the department’s regulation of persons that engage in the business of making or brokering mortgage loans secured by real property located in the state of New Hampshire, which is or shall be occupied in whole or in part as a place of residence by the borrower and which consists of not more than 4 living units.

The Court focused on whether either of the LLCs was a person "engage[d] in the business of making or brokering mortgage loans." The Court found that single mortgage transactions such as in this instance did not rise to the level necessary to qualify as engagement in trade or commerce. To bolster its argument, the Court pointed to the legislatures recent amendment of RSA 397-A:4 9 (exemptions), which was amended to provide as follows:

The provisions of this chapter shall not apply to . . . [a]n owner of real property who in any 12 consecutive month period makes no more than 3 mortgage loans to purchasers of the property for all or part of the purchase price of the real estate against which the mortgage is secured

. . . .

The combination of its finding that the LLCs were not engaged in the business of mortgage lending and the recent legislative amendment led the Court majority to find the RSA 397-A inapplicable; therefore, the Department did not have jurisdiction as to the two mortgage transactions in question. The majority in dicta indicated that the statute applied to persons making "numerous" loan transactions not to isolated occurrences such as with the LLCs. The dissent argued that the majority was mistaken by looking at the recent legislative amendments. It argued that the original statutory language was controlling and by its terms seemed to indicate that the LLCs mortgage transactions were subject to the Department’s jurisdiction.

DALIANIS, C.J., and HICKS, J., concurred; DUGGAN, J., joins the dissent of LYNN, J.,

Alexander J. Walker and Joshua M. Wyatt , Devine, Millimet & Branch., of Manchester, for the petitioners. Michael A. Delaney, attorney general, Danielle L. Pacik, and Lisa M. English, assistant attorney, for the respondents.


Criminal Law

State v. Roscoe White
No. 2010-526
March 9, 2012
Affirmed
  • Whether the right to counsel is ‘offense specific’.
     
  • Whether the state’s action of intentionally violating defendant’s constitutional right of an accused in order to elicit incriminating statements is fundamentally unfair and violates due process.
Victim was shot to death in Manchester early in 2007. Police suspected White. Later in 2007 and during unrelated drug investigation, undercover police purchased narcotics from White. White was not arrested for either charge. Later in 2007, the police received information from an inmate informant claiming he knew that White was the responsible party for the Manchester shooting. Police and prosecutors met with the informant and discussed ways to elicit testimony from White regarding the shooting. Police and prosecutors specifically instructed informant not to discuss drug charges with White while seeking testimony on shooting.

On February 7, 2008, White was arrested on drug charges. He was arraigned the next day and on February 9, 2008 counsel was appointed for him with respect to those charges. On February 11, an assistant attorney general authorized a recording between White and informant pursuant to RSA 570-A:2, II(d). The authorization stated that there was reasonable suspicion that evidence of the drug sales and homicide would be derived from conversation. Later the prosecutor claimed that it was a typo to include the drug sales as part of the authorization. Police placed White in cell with informant and White implicated himself in shooting. During the course of the conversation the informant repeatedly brought up the drug charges and discussed same with White. Subsequently White was indicted on the shooting murder charge. At a pretrial hearing on a motion to suppress, the trial court refused to suppress incriminating statements.

The Court adopted, under the NH Constitution, the "offense-specific" nature of the right to counsel. Therefore, a defendant’s statements regarding offenses for which he has not been charged are admissible even though his right to counsel attached on other charged offenses. The Court applied this newly adopted rule to the case at hand, and Court affirmed the admission of the statements. However, the Court did state that statements made about the drug charges would not be admissible in at the trial for those charges. Even though the Court found the prosecution’s actions clearly violated White’s right to counsel relative to the drug charges, the Court then held that the its actions did not demonstrate the kind of behavior that so shocks the sensibilities of civilized society as to constitute a due process violation.

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

Stephanie Houseman, Concord, for the defendant. Michael A. Delaney, attorney general (Thomas E. Bocain, assistant attorney general), for the State.


State v. Nicole Belonga
No. 2009-129
March 16, 2012
Affirmed
  • Whether defendant’s statements to police during a 6.5 hour interrogation where involuntary and in violation of her due process rights under state and federal law.
Defendant, Belonga, was convicted of manslaughter in Superior Court for causing injuries to her 21 month old daughter, which resulted in her death. Apparently, the injuries were suffered when the child was home alone with Belonga. The next day Belonga brought her daughter to a babysitter while she went to work. The baby sitter left the child with her boyfriend for a short time, and returned to a panicked boyfriend and an unconscious child. They called the police, paramedics and Belonga. After a CAT scan revealed severe brain trauma, the child was transported to Boston for specialized care. While waiting at hospital, Nashua detectives approached Belonga and asked if she would go to Nashua police station to make a statement. After some prodding, Belonga agreed. Belonga was not the prime suspect at this point. However, after 6½ hours of interrogation (midway through which she had been Mirandized) Belonga made incriminating statements which implicated herself as the cause of the child’s injuries.
Despite defense counsel’s attempts to exclude the incriminating statements, the trial court admitted the evidence. Belonga appealed the trial court’s admission of this evidence as involuntary statements made in violation of her due process rights under state and federal law. Using a totality of the circumstances test, the Court examined whether Belonga’s statements were ‘the product of an essentially free and unconstrained choice, as opposed to the product of a will overborne by police tactics, or of a mind incapable of a conscious choice’ State v. Parker, 160 N.H. 203, 208 (2010). The Court examined several factors including: whether the police unreasonably exploited Belonga’s emotional state by claiming her cooperation would assist in the medical treatment of her daughter; whether Belonga reasonably believed she was not free to leave because she repeatedly stated that she wanted to go back to the hospital to be with her daughter but was never informed she was free to do so; whether she was deprived food and water; whether the police tactic of minimizing Belonga’s action of causing the injuries due to factors including, inter alia, stress and/or chemical dependence caused her to make the statements. The Court next examined whether the length of the interrogation caused the defendant to make involuntary statements. The Court found that, in and of itself, length of interrogation alone does not render a statement involuntary, but it is a relevant factor in determining voluntariness. The Court further confirmed that what is of paramount importance is what occurred during the interview. After reviewing all factors, the Court found the police acted within the bounds of reasonable police tactics and did not violate Belonga’s due process rights under either state or federal law.

Next the defense argued that Belonga’s statements that she previously hit her child and that she had an anger management problem should have been excluded. The Court found that in both instance the statements should have been excluded under Rule 404(b) as impermissible character evidence. The Court upheld the conviction; however, because there was other overwhelming evidence that Belonga was the cause of the child injuries which resulted in her death.

DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.

Stephanie Houseman, Concord, for the defendant. Michael A. Delaney, attorney general (Susan P. McGinnis, assistant attorney general), for the State.


The State of New Hampshire v. Glendon Hill
No. 2010-026
March 23, 2012
Affirmed
  • Whether defendant properly preserved "weight of the evidence" issue for appeal.
The defendant was convicted in the Superior Court for aggravated felonious sexual assault for sexual acts perpetrated against his stepdaughter. The state’s only witness was the stepdaughter. After the prosecution rested, the defendant moved to dismiss before putting on a defense, arguing that the State had failed meet its burden of proof. Trial court dismissed the motion. Defense presented its case. After the verdict, the defendant made no post-verdict motions. His appeal was based on the ground that the jury’s verdict was against the weight of the evidence. The Court found that unlike the remedy of acquittal for a sufficiency-of-the-evidence challenge, the remedy for a successful weight-of-the-evidence challenge is a new trial. A sufficiency challenge may be raised at the close of the state’s case-in-chief (as happened in the instant case), at the close of all the evidence, or after a jury conviction in a motion for a directed verdict. However, this was not the issue raised on appeal by the defendant here. In this instance a weight of the evidence challenge was presented which requires that it be raised as a motion to set aside a verdict actually rendered. The Court ruled that the defendant in this case moved to dismiss based on insufficient evidence at the close of the state’s case and made no post-verdict motion to set aside the verdict based on the weight of the evidence, therefore the issue was not properly preserved for appeal.

DALIANIS, C.J., and HICKS, J., concurred.

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general) for the State. Pamela E. Phelan, assistant appellate defender, of Concord, for the defendant.


The State of New Hampshire v. Daniel Matton
No. 2011-068
March 23, 2012
Affirmed
  • Whether State could impose an extended term of incarceration for defendant under RSA 651:6, II(a).
The defendant was convicted of arson and sentenced to 7½ to 15 years in state prison, all suspended, and 5 years of probation. Subsequently, the defendant violated the terms of his probation, and was ordered to serve 3½ to 7 years at the prison. In prison the defendant assaulted a fellow inmate. He was convicted of assault, and was sentenced to prison for 1½ to 3 years. After a guilty plea to one count of assault, the state requested an extended term of incarceration under RSA 651:6, II(a) (2007) based upon the defendant’s prior record. The defendant moved to block the applicability of the statute arguing that he had only one prior conviction.

RSA 651:6, II(a) provides:

A convicted person may be sentenced [to an extended term of imprisonment] if the court finds, and includes such findings in the record, that such person:

(a) Has twice been convicted in this state, or in another jurisdiction, on sentences in excess of one year.

The Court found that the statute requires a trial court to find, before it imposes an extended term of incarceration, that a defendant (1) was previously imprisoned twice, resulting from (2) sentences in excess of one year. In this instance the defendant was imprisoned twice as a result of his two prior convictions; therefore, the Court found that the statutory requirements were satisfied, and affirmed the trial courts denial of the defendant’s motion to preclude the application of RSA 651:6, II(a)’s extended term provision.

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

Michael A. Delaney, attorney general, (Susan P. McGinnis, senior assistant attorney general), for the State. Lisa L. Wolford, assistant appellate defender, of Concord, for the defendant.


The State of New Hampshire v. Christina Smith
No. 2011-224
March 23, 2012
Affirmed
  • Whether the arresting officer had reasonable suspicion that the defendant was engaged in criminal activity when she was seized.
Defendant stopped at a blinking red light in a left-turn-only lane. The defendant did not use her turn signal when making left-hand turn. Police pulled over defendant and arrested her after she failed field sobriety tests. The Court set forth the inquiry to determine whether an officer conducted a lawful stop, which is a two-step inquiry: first to determine when the defendant was seized; second to determine whether, at that time, the officer possessed a reasonable suspicion that the defendant was, had been or was about to be engaged in criminal activity. The Court examined the provisions of RSA 265:45, I, which specifically provides that no person shall turn a vehicle at an intersection without giving an appropriate signal. The Court found this to be reasonable suspicion that the defendant had been engaged in criminal activity, therefore the stop was lawful.

HICKS, CONBOY and LYNN, JJ., concurred.

Michael A. Delaney, attorney general, (Nicolas Cort, assistant attorney general), for the State. Stephen T. Jeffco, of Portsmouth, for the defendant.


Probate
Attorney's Fees

In re Guardianship of Mary Louise Eaton, No. 2011-171
March 16, 2012
Affirmed
  • Whether RSA 464-A:43 requires proposed wards to pay a good-faith petitioner’s attorney’s fees pursuant.
The petitioner and his brother petitioned the Probate Court to become appointed guardian over their mother. Subsequently the brother and the petitioner, by virtue of a settlement agreement, agreed that a third brother would become the guardian. Shortly thereafter the lower court found the ward incompetent and appointed the third brother guardian. The petitioner requested the lower court to order the guardian to pay the Petitioner’s legal fees incurred as a result of the petitioning process. The guardian objected and the trial court ruled in his favor.

The Court stated that an award of attorney’s fees must be grounded upon statutory authorization, an agreement between the parties, or an established exception to the rule that each party is responsible for paying his or her own counsel fees. The Court held that that "the statute’s stated purpose and the statutory scheme indicate that the legislature intended the phrase "fees for the counsel" to refer to a proposed ward’s counsel, not a petitioner’s counsel". The Court found that the stated purpose of RSA chapter 464-A is to "promote and protect the well-being of the proposed ward." The Court went on the state that if a petitioner chooses to employ counsel, "that counsel represents the petitioner’s interests, which may be adverse to the proposed ward or another petitioner". The further noted that there is no requirement that a petitioner obtain counsel for the petitioning process. The Court also did not buy the petitioner’s argument that that the court’s interpretation creates financial disincentives for petitioners to file guardianship petitions because they will be liable for their own attorney’s fees. They found this to be a matter for the legislature to address and not the Court.

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

Kerri S. Glover, Laboe Associates, Concord, for the petitioner. Gary J. Kinyon, Bradley & Faulkner., Keene, for respondent. Lisa J. Bellanti, Tropiano Law Office, Derry, for the New Hampshire Chapter of the National Academy of Elder Law Attorneys, as amicus curiae.


Real Estate Transfer Tax

SAY Pease IV, LLC & a. v. NH Department of Revenue Administration
No. 2011-174
March 23, 2012
Affirmed
  • Whether the transfer is a contractual transfer within the meaning of RSA 78–B:1-a, II.
The underlying dispute stemmed from a lender’s financing conditions, which it required prior to lending funds to Two International Group, LLC (TIG), a real estate holding company. The lender required TIG, and all of its members, to be single-purpose bankruptcy remote entities. Say Pease, holder of a 47.5 percent interest in TIG and its managing member at the time, was not a single-purpose bankruptcy remote entity and needed to convert to same in order for TIG to obtain its loan. The members of Say Pease formed Say Pease IV, a new limited liability company with the same members, and Say Pease IV met the lender’s requirements. Say Pease’s interest in TIG was transferred to Say Pease IV, and TIG was able to obtain its financing. The DRA issued notices assessing the real estate transfer tax (RETT) against Say Pease and Say Pease IV for the transaction, and, after exhausting administrative remedies, they appealed to the Superior Court. The trial court ruled that the RETT did not apply because it did not consider the transfer to be contractual. The DRA appealed.

On appeal both parties did not dispute that the transferred interest in TIG was an interest in a real estate holding company and, therefore, presumptively taxable pursuant to RSA 78-B:1-a, V. On appeal the parties argued whether the transfer was non-contractual therefore exempt pursuant to RSA 78-B:2. The Court ultimately ruled that it was non-contractual and therefore exempt from the RETT. In making its decision, the Court, as the dissent argued, scrambled the precedent it set in First Berkshire Business Trust, 161 N.H. at 181. In that case the Court held that arm’s length bargaining is unnecessary to engage in a bargained-for exchange and the parties need not exchange adequate value.

To determine whether the transfer of the TIG interest was contractual, the Court examined whether Say Pease made the transfer in exchange for something valued in money. The Court found that the members of Say Pease, in their capacities as founders of Say Pease IV, exchanged consideration among themselves to form a suitable financing vehicle being the Say Pease IV LLC, but they gave nothing to Say Pease as an entity. The Court stated that since Say Pease received nothing, it did not transfer its interest in TIG "in exchange for" something of value.

The Court stated that unlike in First Berkshire where the transferor owner directly benefitted and exercised exclusive control over each successive transferee and each transfer was made "in exchange for" the benefit that its owner received, the transferor entity, Say Pease, in this case received no direct benefit at all from the transfer between Say Pease and Say Pease IV. Thus the Court found that unlike the owner in First Berkshire, the only benefit the members in this case arguably received resulted from their ownership of the transferee company. Therefore, the Court held that such an attenuated benefit to the transferee company, cannot serve as consideration for the transfer.

The Court stated that the First Berkshire ruling held that if a transaction directly benefits the owner of a subsidiary transferor company, the benefit may constitute consideration, and DRA can tax the transfer remains intact. By virtue of its ruling herein, the Court held that, if there is no direct benefit to the party controlling a transferor entity, the transfer tax does not apply.

In her dissent, Judge Dalianis, believed that the majority, by focusing upon the degree of attenuation between the transferor entity and the resulting benefit, departed from what she called a simple and predictable rule created in First Berkshire and going forward will create confusion concerning when the tax applies. Judge Dalianis, focused on the argument that transfers among commonly-controlled business entities will normally be contractual because such transfers rarely result in the "relinquishment of control" required to make a gift. The dissent notes that, although the interest in TIG transferred from Say Pease to Say Pease IV, the members of the two entities always controlled the TIG interest. Because none of the transfers involves a relinquishment of control, none satisfies the elements of a gift transfer. Therefore the dissent would find this transfer a contractual transfer pursuant RSA 78-B:1-a, II.

CONBOY and LYNN, JJ., concurred; DALIANIS, C.J., dissented.

John J. Ryan , Casassa and Ryan, of Hampton, for the petitioners. Michael A. Delaney, attorney general (Matthew G. Mavrogeorge, assistant attorney general), for the New Hampshire Department of Revenue Administration.


Real Property

C F Investments, Inc. v. Option One Mortgage Corporation & a.
No. 2011-042
March 9, 2012
Affirmed
  • Whether Defendant was a bona fide purchaser for value without notice of Plaintiff’s competing claim to the property in question.
In 1989 a prior owner conveyed the Property to CF Realty Trust by Warranty Deed, which was recorded at the Registry of Deeds. CF Realty Trust filed for Chapter 11 protection. As a result of bankruptcy proceedings, plaintiff succeeded to all of CF Realty Trust’s assets including the property. Bankruptcy court entered final decree approving plan in 1995, but plaintiff never recorded its interest in the property. Despite outcome of bankruptcy proceedings, CF Realty Trust continued operations, and in 2002 Mr. Fuller as trustee conveyed the property to Mr. Fuller individually and recorded the deed. Subsequently Mr. Fuller mortgaged the property for $219,000 and lender First Eastern recorded its mortgage. First Eastern assigned the note and mortgage to defendants, assignments were properly recorded. In 2008 plaintiff informed the defendant, Option One, of its competing claim to the property. Later in 2008, defendant Wells Fargo notified plaintiff of its intent to foreclose due to Mr. Fuller’s default on the note. Plaintiff sued to enjoin foreclosure in Superior Court, which ruled in favor of defendant due to its status as a bona fide purchaser.

The Court noted that pursuant to RSA 477:3-a, NH is a "race notice" state. Meaning plaintiff would have had to record its interest first in order to prevail over a bona fide purchaser. Plaintiff contended that defendants were on inquiry notice because a "proper" grantor search of CF Realty Trust would reveal that there was a reference to the bankruptcy judgment in a certificate and a mortgage encumbering other property of CF Realty Trust. The certificate noted the bankruptcy docket and the consolidation of CF Realty Trust into plaintiff. The Court found that the trial court did not err when it ruled that the aforementioned certificate and mortgage were outside the chain of title of the property and therefore did not constitute constructive notice that CF Realty Trust no longer existed. To substantiate its ruling the Court pointed to the fact that there were "scores" of post-bankruptcy entries in the grantor index under the CF Realty Trust name, and an examiner could reasonable deduce that the entity still existed.

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

Mark B. Johnson and Donald F. Borenstein, Johnson & Borenstein, Andover, MA, for the defendants. Bryan J. Kerman, Methuen, MA, for the Plaintiff.


Michael O’Hearne & a. v. James McClammer, Jr.: James U. McClammer, Jr., Trustee of The Profit Sharing Plan of Connecticut Valley Environmental Services, Inc. v. Michael O’Hearne & a.
No. 2011-227
March 23, 2012
Affirmed
  • Whether the property line between adjoining land owners had been determined by the doctrine of boundary by acquiescence.
The O’Hearnes own a parcel of land which adjoins the McClammer’s. O’Hearnes’ property lies to the North of McClammer’s. A river essentially bisects the two parcels of land. At one point the two parcels were combined to form a larger single parcel of land. Sometime in 1790 the larger parcel was subdivided and the northern and southern parcels were conveyed to the O’Hearnes’ and McClammer’s predecessor’s in title, respectively. The prior deeds in the chain of title for both parcels contained discrepancies as to which side of the river was the boundary for each respective parcel. A 1929 deed to McClammer’s predecessor in title began using a metes and bound description and it referenced artificial monuments which marked the northerly boundary line. The monuments were apparently just to the south of the river. An 1882 deed to O’Hearne’s predecessor in title described the southern boundary of the parcel as lying on land owned by McClammer’s predecessor in title. The underlying dispute arose when McClammer began removing trees from the strip of land lying to the north of the monuments and to the south of the river.

In their petition to quiet title, the O’Hearnes argued that they not only had record title to the areas in dispute, but that they had also acquired title by adverse possession and the doctrine of boundary by acquiescence. The trial court agreed and the McClammer’s appealed. The Court ruled that the O’Hearnes had acquired the disputed land by acquiescence and therefore did not address the adverse possession claim other than to compare it to the doctrine of boundary by acquiescence. The Court found, for boundary by acquiescence, that a party must prove that: (1) the parties are adjoining landowners; (2) who have occupied their respective lots up to a certain boundary; (3) which they have recognized as the true boundary separating the lots; and (4) have done so for at least twenty years. A boundary established by acquiescence is conclusive upon successors in title. The Court explained that adverse possession developed out of the statute of limitations while acquiescence developed out of principals of public policy, which would prohibit one party from declaring a different boundary line from one that was previously adhered to.

The Court found that the O’Hearnes proved that they, who have lived there for 68 years at the time of trial, and the McClammer’s predecessor in title (Hincliffe who had been there since the 1940s), had acquiesced to the boundary. Evidence at trial supported this, includng inter alia: Hincliffe and Mr. O’Hearne walking the boundary line together and pointing to monuments referenced in 1929 deed; the O’Hearnes’ posting of no trespassing signs on the southerly side of the river at Hincliffe’s request, and Hincliffe’s request that O’Hearne keep his land on the southerly side of the river free of debris so as not to cause a mess on Hincliffe’s property when the river flooded. The Court found no dispute on the location of the boundary line between Hincliffe and the O’Hearnes for more than 20 years. Thus the Court affirmed the trial court’s ruling in favor of the O’Hearnes.

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

Anthony F. DiPadova, Jr., Buckley and Zopf, of Claremont, for Michael W. O’Hearne and Marie E. O’Hearne. Bradford T. Atwood , Clauson & Atwood, of Hanover, for James U. McClammer, Jr., individually and as Trustee of the Profit Sharing Plan of Connecticut Valley Environmental Services, Inc.


Tort Law

Dana Chatman v. Strafford County & a.
No. 2011-162
March 9, 2012
Reversed and Remanded
  • Whether the act of hitching a trailer to a truck constitutes the "operation" of a motor vehicle for which the governmental unit can be held liable under RSA 507-B:2 for resulting injuries.
Chatman was assigned to assist with the cleanup after the Lee County Fair as part of a work program under the control of the Strafford County Corrections Department. After loading a trailer owned by a third party, Chatman, along with others, was directed to lift the trailer and hitch it to a truck owned by the same third party. A weld on the trailer hitch broke causing the trailer to fall on Chatman, which caused permanent injuries.

Chatman sued for negligence. RSA 507-B:2 provides, in pertinent part: "A governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises." The defendant’s moved to dismiss the claims on the ground that they were barred by RSA 507-B:2 because they did not arise out of the ‘ownership, occupation, maintenance or operation of a motor vehicle’. The trial court ruled in favor of the defendants.

On appeal the Court set about interpreting what constitutes "operating" a vehicle. After reviewing case law from multiple jurisdictions, the Court ruled that the act of loading and hitching the trailer and truck constituted the operation of the truck. The Court essentially ruled that the trailer and truck were being operated as a unit. The Court reversed the lower court’s decision and remanded the case for trial consistent with its ruling.

HICKS, CONBOY and LYNN, JJ., concurred.

John P. Fagan, Bussiere & Bussiere, Manchester, NH, for the plaintiff. Andrew R. Shulman, Getman, Schulthess & Steere, Bedford, NH, for the defendants.


Zoning

Harborside Associates, L.P. c. City of Portsmouth,
No. 2011-236
March 23, 2012
Affirmed
  • Whether trial court properly reversed ZBA’s decision to uphold planning board’s ruling that project could be built regardless of new zoning ordinance provisions.
The City of Portsmouth Planning Board’s (Board) approved, intervener, Parade Residence Hotel, LLC’s (Parade) application to amend its previously approved site plan. The original site plan was for a five-story building, consisting of a hotel, a restaurant, and ground floor retail space, which Parade began constructing in 2009. In 2010 a new zoning ordinance became effective, which required, inter alia, different parking requirements. Later in 2010 Parade submitted an amendment to the site plan, which changed the retail space to a conference center. The petitioner, Harborside Associates, L.P. (Harborside) objected contenting that Parade had to comply with the 2010 ordinance, which plan as amended did not. The Board approved the plan without requiring compliance with the new ordinance. Harborside appealed to the ZBA, which affirmed the Board’s decision. Harborside appealed to the Superior Court, which ruled in its favor. Parade appealed to the Supreme Court.

The Court first examined whether RSA 674:39 exempted Parade’s amended site plan from the 2010 zoning ordinance. Parade argued that because the statute is silent as to whether amendments to exempted site plans are also exempted it is therefore ambiguous, and it could therefore rely on the doctrine of ‘administrative gloss’ for how to proceed. The Court examined RSA 674:39, which provide that any development or building on the site must occur "in accordance with the approved subdivision plat . . . or in accordance with the terms of the approval." The Court found that and amendment that substantially changes the plan is not in accordance with the approval. Therefore, the Court found no ambiguity and declined to apply the doctrine of ‘administrative gloss.’

Next the Court examined whether the proposed amendment was correctly classified as a ‘substantial change’ by the trial court. The Court held that that an amendment can no longer be said to be "in accordance" with the terms of a previously-approved site plan if it substantially changes that plan, which is to be factually determined on a case to case basis. In this instance the Court found that an amendment to an approved site plan seeking to replace a previously approved use with a new, previously unapproved use, is substantial, and inconsistent with the terms of the original approval. Therefore, it was not entitled to exemption protection under RSA 674:39.

The Court also did not buy two minor arguments on appeal. The first also coming from Parade, which claimed that the ordinance didn’t apply at all because a relevant section stated that its terms only applied to changes or expansions in existing uses. Parade argued there was no use at all at this point because no certificate of occupancy issued. The Court found this to be a very weak argument and found that a use existed from the moment in received approval from the Board not from the date it receives a certificate of occupancy. Finally the Court addressed the City’s argument that the trial court failed to show deference to the ZBA findings. The Court found that the factual findings of the ZBA were not in dispute. Instead the Court found that it was the ZBA’s legal conclusions which were in dispute. Therefore, the trial court did not need to show deference.

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

Jonathan S. Springer, Springer Law Office, PLLC, of Portsmouth, for the petitioner, Harborside Associates. Robert P. Sullivan and Susan W. Chamberlin, of Portsmouth, for the respondent, City of Portsmouth. Alec L. McEachern, Shaines & McEachern., of Portsmouth, for the intervener, Parade Residence Hotel, LLC.



Paolo R. Wieser

Paolo R. Wieser received his Juris Doctorate from the University of New Hampshire School of Law. He is admitted to the Massachusetts and New Hampshire Bars. In 2004, he formed Wieser Law PLLC, a general practice law office located in Campton, NH. Previously he was associated with Duval, Bellone, Cranford & Celli, a midsized law firm located outside Boston, which specialized in real estate and telecommunications law.

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