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Bar News - June 15, 2012

NH Supreme Court At-a-Glance - May 2012


Criminal Law: Criminal Procedure and Sentencing

State of New Hampshire v. Steven Forest
No. 2010-679
May 22, 2012
  • Whether the trial court erred by failing to grant pre-trial confinement credit to a defendant where the defendantís incarceration was not exclusively related to the criminal actions for which he was sentenced.
Defendant Steven Forest appeals a decision of the Superior Court denying the defendantís request for pre-trial confinement credit. While on parole, Forest was arrested for a parole violation. The same day or shortly thereafter, Forest was arrested on burglary charges. The burglary charges were not adjudicated for 1,154 days, during which time Forest remained incarcerated.

Forest seeks credit for his time served prior to the burglary trial. He argued that, since he had not yet had a parole revocation hearing, his parole had not been revoked. As such, he claimed that the entire incarceration period constituted pre-trial confinement on the burglary charges. The defendant argued that the relevant credit statutes mandate that a defendant "shall be granted" credit when he has been incarcerated prior to trial.

At trial, the court denied the defendantís motion because the defendant would receive credit for time served against his parole violation. The trial court refused to allow the defendant to "double dip" and receive credit against both sentences for these 1,154 days.

On appeal, the Court examined the purposes of the credit statutes. They noted that the credit statutes exist to ensure that the indigent are treated equally to those persons who can afford bail. Here, however, the defendant remained in jail due to his parole violation warrant. Thus, as the Court noted, the equity concerns that animated the drafters of the credit statute did not arise in this situation. The Court concluded that the trial court was not mandated to grant credit to the defendant since his incarceration was not exclusively related to the criminal actions for which he was sentenced.

Attorneys: Michael A. Delaney, attorney general (Lucy H. Carrillo, assistant attorney general, on the brief and orally), for the state; Lisa L. Wolford, assistant appellate defender, of Concord, for the defendant.

State of New Hampshire v. Thomas Willey No. 2010-578
May 1, 2012
Affirmed the conviction, vacated the sentence and remanded.
  • Whether the trial court erred in failing to grant a mistrial where arguably prejudicial testimony was offered, and;
  • Whether the trial court improperly considered defendantís trial strategy and demeanor during sentencing
Defendant Thomas Willey appealed a conviction on one count of pattern aggravated felonious sexual assault. On appeal, Defendant argued that the trial court erred in that: (a) the court failed to grant a mistrial subsequent to irreparably-prejudicial testimony, or, in the alternative, failed to provide curative instructions, and; (b) the court improperly considered the Defendantís trial strategy to sentence the defendant.

State trooper Eric Berube investigated the allegations against the Defendant and ultimately arrested him. At trial, Berube testified that he initially encountered the victim, J.H., through another investigation pertaining to J.H.ís sisters. The defense objected and moved for a mistrial, at which point the trial court judge instructed the jury to not consider the trooperís answer regarding his investigation of another matter involving J.H.ís sisters. Notwithstanding these jury instructions, the defense counsel requested a mistrial or, alternatively, stronger curative instructions.

The defense argued that the trooperís testimony and the courtís instructions pertaining to that testimony prejudiced his client. In particular, the defense argued that the testimony and concomitant instructions suggested to the jury that the defendant had engaged in conduct closely related to the alleged conduct in the instant trial. The Court found that the defendant had not suffered irreparable injustice such that a mistrial was warranted. Instead, the Court noted that the trooper had stated that his initial encounter with J.H. occurred through investigation of an unrelated matter. Also, the Court noted that the trial courtís curative instructions after this testimony were sufficient to alleviate any prejudice, if any existed.

Second, the Defendant appealed on the grounds that the trial court improperly considered the Defendantís trial strategy in determining his sentence. In particular, the Defendant argued that the court improperly sentenced based on the Defendantís decision to attack the victimís credibility.

The Court reviewed the Defendantís sentence de novo because the Defendant appealed based on an alleged violation of his constitutional rights. Based on its review of the record, the Court determined that the trial court may have relied on improper factors. In particular, he asserts that the trial court improperly sentenced based on the trial strategy of his counsel. The Court examined the trial courtís comments at the sentence hearing. For example, the trial court disparaged "what this defendant didÖin terms of the defense he raised in this case." The Court found this comment and other statements to suggest that the trial court improperly penalized the defendant for his attorneyís trial strategy. As a result, the Court found that the trial court erred.

Too, the defendant argued that the trial court erred because the court considered the defendantís lack of remorse during sentencing. A defendantís lack of remorse cannot be considered in sentencing where a defendant maintains his innocence because a defendant risks incriminating himself if he expresses remorse at sentencing. By preventing trial courts from considering a defendantís lack of remorse, the Court protects the defendantís right to avoid self-incrimination. The Court felt as though the trial courtís comments at sentencing reflected the fact that the defendantís lack of remorse was a consideration in sentencing. As the Court noted, the trial court negatively commented on the defendantís "total lack of remorse and empathy [toward] the victim" at sentencing.

The Court could not conclude that the trial court "clearly gave no weight" to improper factors and consequently vacated the defendantís sentence and remanded for resentencing.

Attorneys: Pamela E. Phelan, Concord, for the Defendant. Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general) for the State.

Family Law

In the Matter of Eric J. Dube and Jeannie Dube
No. 2011-075 May 11, 2012
Affirmed in part and reversed in part.
  • Whether the trial court erred in granting an adulterer a "fault based" divorce, and;
  • Whether the trial court erred by denying alimony and allowing a purportedly-unequal distribution of marital assets where the aggrieved party faced incarceration and had destroyed the marital residence.
Respondent Jeannie appeals the final decree of a divorce action in the Derry Family Division. In response to an instance of infidelity by petitioner, respondent doused the family residence with gasoline, attempted to burn the building down, destroyed their property with an ax, and attempted to murder the petitioner with an ax. She was convicted of various crimes related to this incident. Jeannie challenged the trial courtís decision to grant a fault-based party because only "innocent parties" may receive fault-based divorce, and due to Ericís adultery, he could not be considered an innocent under the fault-based divorce statute. Eric argued that he should be considered an "innocent party" because Jeannie had condoned his adultery and agreed to "work through" their problems. The Court disagreed with petitionerís assertion that Jeannie had forgiven his infidelity, in light of her subsequent criminal behavior. So, the Court reversed the trial courtís decision to grant Eric a fault-based divorce because he could not be considered an innocent party who could avail himself of the fault-based divorce statute.

Second, Jeannie argued that the trial court erred in denying her alimony. However, the Court rejected her contention. The Court determined that Jeannie would not need alimony because all her needs will be taken care by the prison during her sentence and any award would not be rehabilitative.

Third, Jeannie claimed that the trial courtís unequal distribution of marital assets amounted to an unsustainable exercise of discretion. However, the Court found that the trial courtís decision was supportable (even though the division was not equal) because Eric will be responsible for marital debts while Jeannie serves her term in prison and for repairing the damage to their marital residence.

Fourth, Jeannie challenged the stipulated parenting plan because it effectively terminated her parental rights. However, Jeannie failed to bring this claim at trial and the Court did not consider her argument.

As a result, the Court affirmed the distribution and the denial of alimony, but they reversed the trial courtís decision to grant the petitioner a fault-based divorce.

Attorneys: Doreen F. Connor, Wiggin & Nourie, of Manchester, for the petitioner; Diane M. Puckhaber, Puckhaber Law Offices, of Concord, for the respondent.

In the Matter of Ronald Brownell and Irene Brownell
No. 2011-304 May 11, 2012
  • Whether the trial court erred in considering federal veteransí disability benefits as income for alimony;
  • Whether the trial court erred in treating post-divorce distributions from a trust as marital property subject to distribution;
  • Whether the trial court improperly required petitioner to pay respondent her share of dissipated trust distributions, and;
  • Whether the court erred in finding the petitioner in indirect civil contempt for failing to pay temporary alimony and for violating the trial courtís anti-hypothecation order.
Petitioner appeals a decision of the trial court related to the distribution of assets pursuant to a divorce decree. Petitioner argued that federal law precluded the trial court from considering veteransí disability benefits as income for alimony purposes. Under federal law, veteransí disability benefits are exempt from creditors, and cannot be subject to "attachment, levy, or seizure." Petitioner claimed that, due to his insufficient alternative sources of income, the alimony order effectively constitutes an attachment, levy, or seizure of his disability benefits. The Court rejected this argument. The Court examined other courtsí treatment of the issue, and found a compelling basis to hold that payments arising from service are exempt from claims from creditors, but they are not exempt from a claim for alimony.

Also, petitioner asserts that the trial court improperly treated post-divorce distributions from his motherís trust as marital property subject to equitable distribution. Petitioner argued that his interest in the trust was a "mere expectancy" and thus not a property interest. However, as the appealing party, petitioner failed to provide a record sufficient to review the issue. The Court could not determine, based on the record, petitionerís interest in the future distribution. The petitioner failed to produce the trustís terms and whether the petitioner had a fixed property interest or mere expectancy.

Third, petitioner argued that the trial court erred in ordering him to pay to respondent $47,000 dollars from trust distributions. He claimed that, since he had spent almost all of the trust distributions in question, then the distributions did not constitute property that belonged to the petitioner at the final hearing. Citing equitable concerns, the Court rejected this interpretation. The Court refused to hold that, where one party squanders marital property such that it is impossible to make an equitable award, the court will treat it as though it no longer exists. Rather, the Court affirmed the trial courtís decision to order petitioner to pay the respondent her share of the dissipated trust distributions.

Fourth, the petitioner argued that the trial court erred in finding him in civil contempt for his failure to pay alimony. He claimed that the trial court should have considered first whether the petitioner had the means to pay alimony. The Court, however, noted that the petitioner did not make this argument at trial, and so the trial court did not err in failing to consider an argument that it did not hear.

Attorneys: Gordon R. Blakeley, Jr., of Concord, for the petitioner; Joshua L. Gordon, of Concord, for the respondent.

In the Matter of Judith Raybeck and Bruce Raybeck
No. 2010-876 May 11, 2012
Vacated and remanded.
  • Whether the family division erred in ruling that the petitioner did not cohabitate and, thus, violate the terms of the divorce decree.
  • Whether the Court should adopt a different definition of "cohabitation" than the standard employed by the trial court.
Judith and Bruce Raybeck divorced, entering into a divorce decree that obligated the respondent to provide alimony in yearly installments for ten years. However, under this decree, the petitionerís alimony obligations ceased if the petitioner "cohabitates with an unrelated adult male."

Petitioner moved into the upper level of a single family home owned by Paul Sansoucie. She did not pay rent to Sansoucie, but she lived on the upper level, contributed $300 per month for food, and frequently cooked for Sansoucie. They shared the middle level. The respondent refused to continue alimony payments after learning of this arrangement, and Petitioner subsequently requested that the family division enforce the partiesí alimony agreement.

Following a hearing on the matter, the marital master recommended a finding that the petitioner did not cohabitate with Sansoucie for the purposes of the divorce decree. In evaluating the relationship between Sansoucie and petitioner, the trial court defined "cohabitation" as reflecting evidence of "a common and mutual purpose to manage expenses and make decisions together about common and personal goals, and a common purpose to make mutual financial and personal progress toward those goals." The family division approved the marital masterís recommendation, relying on, inter alia, the fact that Judith Raybeck and Sansoucie maintained largely-distinct finances and wholly-separate sleeping arrangements in their domicile.

On appeal, respondent argued that the trial court was unable to establish "a workable definition of what constitutes cohabitation." He urged the Court to adopt a new definition of "cohabitation" in line with recent legislative enactments in neighboring Massachusetts.

In fact, the legislature and the Supreme Court had never defined "cohabitation" despite the termís frequent usage in divorce decrees. As a result, the Court looked to other jurisdictionsí interpretations as well as common dictionary definitions of "cohabitation." There, the Court discovered that the term has generally been used to describe relationships that resemble marriage due to their continuity and mutuality of support and obligation. The Court followed other jurisdictions and defined "cohabitation" as "a relationship between persons resembling that of a marriage." The Court noted that any assessment of cohabitation is a fact-specific analysis that depends on many factors. However, the Court highlighted three factors as indicators that a relationship resembles that of a marriage: (a) shared financial arrangements; (b) the extent of their personal relationship, and; (c) the shared use of personal property. The Court vacated and remanded so that the lower court could reconsider in light of the newly-articulated standard.

Attorneys: Gregory A. Kalpakgian and Jay D. Markell, FamilyLegal, Concord for the respondent; Joshua L. Gordon, Concord, for the petitioner.


Rebecca Rivera v. Liberty Mutual Fire Insurance Company
No. 2011-406 May 11, 2012
  • Whether the trial court erred in ruling that the uninsured motorist statute applies when an automobile insurance exclusion applies for injuries sustained in a single-vehicle accident.
Respondent Liberty Mutual appeals a declaratory judgment of the Superior Court that an automobile policy issued to Riveraís parents excludes liability coverage but affords uninsured motorist coverage for injuries Rivera sustained in a single-vehicle accident.

Petitioner Rebecca Rivera was driving her familyís Toyota when her passenger grabbed the steering wheel and caused the vehicle to crash into a tree.

The policy covered insureds for bodily injury or property damage for which the insured becomes responsible in an auto accident. The policy excluded any insured who intentionally causes bodily injury or property damage or who used a vehicle without a reasonable belief that he was entitled to use the vehicle. The policy defined "insured" as any person occupying the automobile. So, the petitioner was considered to be an "insured". The policy covered circumstances where an insured is entitled to recover damages from the owner or operator of an uninsured motor vehicle. At the same time, the policyís "owned vehicle exclusion" excluded from the definition of "uninsured motor vehicle" "any vehicleÖowned by or furnished for the regular use of you or any family member." Despite the exclusion, the trial court determined that the Riveraís car could not be excluded from the definition of "uninsured motor vehicle" and so allowed River to recover.

On appeal, the Court affirmed. The Court examined the uninsured motorist statute and determined that to allow recovery under the insurance contract would realize the overall policy goal of the statuteís drafters. Namely, the Court felt that the statute was intended to place insured persons in the same position as if the uninsured person involved in an accident had an automobile insurance policy. Regardless of any policy exclusion, Riveraís status as the vehicleís operator entitled her to coverage under the uninsured motorist statute.

Attorneys: Mark D. Morrissette, McDowell & Osburn, of Manchester, New Hampshire, for the petitioner; Kevin Truland, Morrison Mahoney, of Boston, Massachusetts, for the respondent.

Municipal Law: Right-to-Know Law

Professional Fire Fighters of New Hampshire v. The New Hampshire Local Government Center
No. 2011-550 May 11, 2012
  • Does the attorney-client privilege attach when local government communicates in confidence with its counsel at a public meeting that no members of the public attend, or does the Right-to-Know Law compel disclosure?
Plaintiff requested documents from the defendant pursuant to the "Right-to-Know Law," and Defendant supplied numerous documents. However, the Defendant redacted certain portions of the records under a claim of attorney-client privilege. Plaintiff sued to compel disclosure. They claimed that the redacted oral communications occurred during meetings that were open to the public and thus could not be considered privileged. The trial court ruled that the defendants could not be compelled to produce these communications because the attorney-client privilege applied.

On appeal, the Court affirmed the lower courtís decision. In its analysis, the Court discussed the application of the privilege to the instant case. The Court spelled out the basic principle that the attorney-client privilege encompasses confidential communications that occur to facilitate the rendition of professional legal services. The Court emphasized that confidential communications are protected from disclosure if the communicating party reasonably believed that nobody will learn of the communicationís contents except a privileged person. While the meeting at issue was open to the public, no members of the public attended. As a result, the Court stated, the speakers had a reasonable expectation that the communications were confidential. By contrast, the conversation would not have been privileged if members of the public had attended the meeting. However, according to the Court, Defendants reasonably relied on the absence of public attendees to speak candidly with counsel and were thus entitled to redact these communications from their public disclosure.

Attorneys: Glenn R. Milner of Molan, Milner & Krupski, Concord, for the plaintiff; William C. Saturley of Preti, Flaherty, Beliveau and Pachios and Adam J. Chandler of Nelson Kinder + Mosseau, Manchester, for the defendant.

38 Endicott Street North, LLC v. State Fire Marshal, New Hampshire Division of Fire Safety
No. 2011-502 May 22, 2012
  • Did the trial court err in dismissing a petition under the Right-to-Know Law by misapplying the "Murray exemption"?
Petitionerís restaurant suffered fire damage, and the State Fire Marshalís Office instituted an investigation. The petitioner requested all records, information, and documents related to the fire and the investigation. Fire Marshal replied by disclosing the Incident Initiation Report, but withheld all other information due to the ongoing nature of the investigation.

Citing the Right-to-Know Law, petitioner filed a petition for injunctive relief to compel the Fire Marshal to disclose the withheld materials, and he sought attorneyís fees. The trial court agreed with respondent, ruling that the withheld records were exempt from the Right-to-Know Law under the "Murray Exemption."

The Murray Exemption is a two-pronged test that allows a government entity to avoid disclosure under the Right-to-Know Law. First, the entity must prove that the requested materials were "compiled for law enforcement purposes." Then, the entity must show that releasing the material would affect one of six enumerated adverse consequence. Here, the Court held that the Fire Marshalís Office compiled the withheld materials for law enforcement purposes because it was clear from the record that the withheld records were compiled during an investigation into potential criminal wrongdoing. As for the second prong, the Court held that the instant case fit within the first adverse consequence: interference with enforcement proceedings. The Court found that enforcement proceedings were pending or reasonably anticipated by the respondent, and disclosure could interfere with those proceedings. In particular, the respondent offered an affidavit from the Fire Investigator that stated that an investigation was open and ongoing, and likely to result in criminal charges. The Fire Investigator further stated that he believed disclosure would interfere by, among other ill effects, informing persons of interest about the investigation and enable these persons of interest to "cover their tracks." Given this record, the Court found that the two-pronged Murray Exemption applied. As a result, the Court affirmed the determination of the trial court and denied petitioner relief.

Attorneys: Friedrich K. Moeckel, Tarbell & Brodich Professional Association, of Concord, for the petitioner; Michael A. Delaney, attorney general, (David M. Hilts, assistant attorney general, on the memorandum of law and orally), for the respondent.

Property Tax

Appeal of Town of Seabrook (New Hampshire Department of Environmental Services)
No. 2011-381 May 22, 2012
Affirmed in part, reversed in part.
  • Whether the Department of Environmental Services erred in granting tax exempt status under a statute that allows tax exemption for facilities "used for treatment purposes" when the facilities in question are not routinely used.
  • Whether the Department violated administrative law by failing to provide for a public hearing and by failing to gather sufficient evidence to support their decision to confer tax exemption.
NextEra operates a nuclear power station in Seabrook. They received tax exemption from the Department of Environmental Services ("DES"). The Town of Seabrook ("Seabrook") challenged the substantive decision and the procedural adequacy of the decision-making process.

First, Seabrook challenged the conferral of tax exempt status on facilities that only operate in the event of a non-routine accident. The relevant statute provides tax exempt status for facilities that are "used" for treatment purposes. Thus, the question at bar was whether the law precludes tax exemption for facilities that are only used to treat pollution upon the occurrence of a non-routine event. The Court interpreted the statute to require regular treatment procedures and not mere possible treatment. The usage of the facilities in the instant case was speculative. The facilities would only operate if a catastrophic accident occurred. So, the Court determined that these facilities could not be considered subject to the tax exemption in question.

Second, Seabrook argued that DES lacked sufficient evidence to decide NextEraís tax exempt status as a whole or, alternatively, with respect to five facilities. The Court noted that DESís findings of fact were presumed as prima facie lawful and reasonable, and could only be overcome by a showing that there was no evidence from which DES could conclude as they did. Given this deferential stance, the Court found that the application as a whole was supported by sufficient evidence. Also, the Court found that DESís decision was sufficiently based in fact with regard to the five facilities challenged by Seabrook.

Third, the Court rejected Seabrookís arguments that state law required DES to hold a meeting on the matter. In addition, Seabrook argued that claim and issue preclusion barred NextEraís application. However, the Court held that collateral estoppel did not apply because the DESís proceeding was non-adjudicative.

Finally, Seabrook argued that the DES decision to provide for a non-adjudicative determination of tax exemption was ultra vires. However, the Court briefly dispatched with this argument by noting that the Court had previously determined that towns affected by tax exemptions under this statute had no right to formal adjudicative proceedings.

Attorneys: Robert D. Ciandella, et al, Donahue, Tucker & Ciandella, of Exeter, for the petitioner; Jonathan A. Block, et al, Pierce Atwood, for the respondent; Michael A. Delaney, attorney general (K. Allen Brooks, senior assistant attorney general, on the brief), for the New Hampshire Department of Environmental Services.

Property Tax: Religious Organizations

Appeal of Liberty Assembly of God (New Hampshire Board of Tax and Land Appeals)
No. 2011-368 May 22, 2012
  • Did the Board of Tax and Land Appeals err by granting tax-exempt status only to those portions of petitionerís property used specifically for religious purposes?
Petitioner is a religious institution that owns 26.13 acres of land in Concord. The City of Concord granted tax exemption for the proportion of the property which was being used for religious purposes. The Board of Tax and Land Appeals ("Board") upheld the Cityís determination of partial exemption.

Assembly argues that the City and the Board erred in that: (1) they misinterpreted state tax law by not granting Assembly full exemption for their houses of worship; (2) the Cityís inquiries into the religious uses of each room in the church unconstitutionally entangled government and religion, and; (3) all of the space should be exempt as used for religious purposes.

On petitionerís argument that property owned by a religious institution is entitled to blanket tax exemption, the Court ruled in favor of the respondents. The Court looked to the statute, legislative history, and relevant case law, and determined that the statute should not be interpreted so as to provide for a blanket exemption.

Second, the Court held that this partial apportionment between taxable and non-taxable real property does not violate the Establishment Clause or the Equal Protection Clause. Assembly argued that, by determining what uses were "religious enough," the respondents were unduly questioning the validity of the religion itself. However, the Court notes that respondents accepted the authenticity of the religion, but rather acquired knowledge sufficient to assess the use for taxation purposes.

Further, the Court rejected Assemblyís argument that their usage constituted religious activity and so warranted tax exempt status. However, the Court rejected this argument because they found no evidence that the space was used for religious or charitable purposes. As a result, the Court affirmed the Boardís decision.

Attorneys: Lisa A. Biron, of Manchester and Alliance Defense Fund, of Leawood Kansas (Joel Oster on the brief) for the petitioner; City Solicitorís Office, of Concord (James Kennedy and Danielle L. Pacik) for the respondent.

Surety Law

The State of New Hampshire v. Sean McGurk,
No. 2011-164 May 11, 2012
  • Whether the trial court erred in ordering the forfeiture of a suretyís bond who guaranteed the appearance of a defendant in court when that defendant was incarcerated in another state.
Free Bail Bonds ("surety") appeals a trial court order forfeiting bonds that guaranteed the court appearance of the defendant, Sean McGurk. Surety guaranteed McGurkís appearance. However, one month prior to the defendantís scheduled appearance, he was arrested in Vermont and held in custody. The surety moved to revoke the defendantís bail, but the trial court did not rule on this motion until the defendantís ongoing incarceration prevented his appearance at his scheduled criminal trial. At that point, the trial court ruled that the bail be forfeited.

The Court noted that, while the trial court arguably erred in delaying its ruling until after the defendantís default, the propriety of the delay was not an issue before the Court. Rather, the Court only considered the trial courtís order to forfeit the bonds and the denial of the suretyís request for an evidentiary hearing.

Under the relevant statute, the surety forfeits his bond where he is prevented from surrendering the defendant by "an act of God, or the government of the United States or of this state, or a sentence of law." The surety argued that the statute intends to excuse the surety when surrendering the defendant is impossible based on an act of government authority. Critically, however, the statuteís plain language enumerated the suretyís available defenses, which were limited to the common law defenses codified in that statute. At common law, incarceration in a different state did not qualify as a proper defense. Sureties were only protected if the defendant failed to appear to due his incarceration in the home state. The Court refused to add new common law defenses for sureties and thus effectively add to the defenses enumerated in the statute. As such, the Court affirmed the trial courtís decision.

Attorneys: Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the state; Adam H. Bernstein, Bernstein, Mello & Chadwick, of Nashua, for the surety.

Tort Law

Regina Mbahaba, individually and as mother and next friend of Benita Nahimana v. Thomas Morgan d/b/a Property Management Services a/k/a Property Services Company, LLC
No. 2010-710 May 11, 2012
Affirmed in part, reverse in part, and remand.
  • Whether the trial court erred by dismissing plaintiff-tenantís claims against a property management companyís owner in his individual capacity, and;
  • Whether the trial court erred in granting summary judgment to an LLC member in claims against him individually when the member ceases the LLCís operation and transfers its assets subsequent to the filing of a lawsuit against the company.
Morgan owned a property management company retained by Biren Properties, Inc. to operate an apartment building in which the plaintiff and her family rented an apartment. Plaintiffís daughter, Benita, suffered lead poisoning while living there. Plaintiff appealed Superior Court orders dismissing direct claims against the Defendant and granting the Defendant summary judgment. Mbahaba sued Morgan individually for injuries allegedly caused by the defendant in his personal capacity, and also sought to pierce the corporate veil of the company managed by the Defendant.

On review, the Court determined that Mbahaba alleged facts that entitled her to relief, and so found that her negligence claim must survive the Defendantís motion to dismiss. In particular, the Court found that the Defendant may be liable for the Plaintiffís injuries because he: (a) knew personally of the dangers of lead paint; (b) knew that the paint in the rented apartment was peeling and likely contained lead elements, and; (c) failed to investigate further, take steps to make the apartment safe, or warn the plaintiff. In these circumstances, the Court noted, a tort duty exists because the reasonable person would exercise a certain degree of care to protect a vulnerable tenant. The Court noted that a person without a contractual duty who nevertheless possesses the knowledge and authority of a landlord may be liable for his negligence. Here, the Defendantís position as manager of the apartment building and his knowledge of the hazardous condition established a tort duty to avoid exposing the plaintiff to an unreasonable risk of harm. As a result, the Court held that the Defendantís negligence claim must survive a motion to dismiss.

Second, the Court found that the trial court had erred in granting summary judgment to the Defendant with regard to the Plaintiffís motion to pierce the corporate veil. Subsequent to Mhababa enacting the action against Defendantís property company, the LLC transferred its assets to a new LLC he had formed, solicited a number of the original LLCís clients to transfer its accounts to the new company, and ceased the operation of the original LLC. The Court found that the trial court erred because, based on a review of the evidence in a light most favorable to the plaintiffs, the evidence could permit a finding that the defendant employed the limited liability identity to promote injustice.

Attorneys: Christopher J. Seufert and Lexie Rojas, Seufert Law Offices, Franklin (on the brief) and Francis G. Murphy, Shaheen & Gordon, Manchester, (orally) for the Plaintiff; Jason M. Craven, Craven Sullivan & Splendore, Manchester, for the defendant.


Lynne DiGaetano v. John DiGaetano
No. 2011-288 May 11, 2012
Reversed the order of the Superior Court
  • Whether the superior court lacked jurisdiction to hear the plaintiffsí claims for equitable relief because the probate court retained exclusive jurisdiction.
Plaintiffs appeal an order of the Superior Court granting an in limine motion of the defendant to exclude parol evidence. Defendant cross-appeals an order of the same court that denied his motion to strike the plaintiffsí appeal.

Domenica and Michael DiGaetano created a trust holding title to their home. Initially, the trust named the children and grandchildren of Domenica and Michael as the beneficiaries. After Michaelís death, Domenica revised the trust to name the Defendant as the sole beneficiary. Subsequently, the Defendant sold the home and petitioned to establish the validity of the trust as amended. Through this action, the Probate Court concluded that the trust was valid and that, as a result, Defendant was the rightful owner of the saleís proceeds.

Plaintiffs appealed to superior court, and sought a de novo jury trial, arguing that an issue existed as to whether the trust constituted a contractual "common plan" that Domenica breached by amending the trust. Defendant moved to strike the plaintiffsí notice of appeal, arguing that the superior court lacked jurisdiction. The court denied this motion, whereupon the defendant filed an in limine motion to exclude parol evidence. Superior Court granted the motion, and then dismissed the plaintiffsí case after concluding that the plaintiffs could not sustain their burden of proof in light of the exclusion of the parol evidence.

Plaintiffs argued that they were entitled to a jury trial because their claims were based in contract. More particularly, they argued that Domenica breached the contract between her and Michael by amending the trust to designate the Defendant as the sole beneficiary.

The Court determined that the plaintiffs were not entitled to a jury trial because their claims are exclusively handled by the Probate Court. Namely, the claims were solely the province of the Probate Court because the claims involved the interpretation and construction of a family trust. Second, the Court determined that that the plaintiffs did not have a right to a jury trial because the plaintiffs sought equitable relief. The relief for an action based in contract is damages, whereas here the plaintiffs sought to effectively strike a paragraph from the original trust and to impose a constructive trust in their favor. Probate Court traditionally handles equitable claims related to trusts. The equitable nature of the plaintiffsí claims indicated to the Court that this case is within the exclusive nature of the Probate Court.

Finally, the court concluded that the plaintiffs were not entitled to a jury trial because they could not be considered third-party beneficiaries to a contract between Domenica and Michael. The plaintiffs could not be considered third-party beneficiaries because the contract did not evince any intent by the drafters to allow the plaintiffs to sue. To be considered proper third-party beneficiaries, the contract must show that the parties to the contract considered the third partyís legal status and intended to confer the right to sue the promisor. Here, the contract did not exhibit that intent.

Attorneys: Stephen P. Griffin Law, of Newton, Massachusetts for the plaintiffs; Steven E. Grill and Leigh S. Willey, Devine, Millimet & Branch, for the defendant.

Joshua L. Minty

Joshua L. Minty is a recent graduate of the University of New Hampshire and Boston College Law School. He works at Oracle America, Inc. and lives in Massachusetts.

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