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Bar News - September 14, 2012


NH Supreme Court At-a-Glance - August 2012

By:

Administrative Law

Appeal of Casey B. Moore (New Hampshire Department of Employment Security)
Department of Employment Security
Argued: June 7, 2012
Opinion Issued: August 21, 2012
Affirmed
  • Whether there was ample support for the Department of Employment Security’s finding that the petitioner voluntarily terminated the employee/employer relationship thereby making him ineligible for unemployment benefits.
The petitioner, Casey B. Moore, appealed a decision of the appeal tribunal (tribunal), as affirmed by the appellate board, of the New Hampshire Department of Employment Security (DES) finding him ineligible for unemployment benefits because he voluntarily left his job without good cause. See N.H. Rev. Stat. Ann. § 282-A:32, I(a) (2010).

Here, the Supreme Court found that Moore’s own testimony established that he voluntarily quit working for his employer. He admitted, for example, that on the very morning he alleges that he was fired, his employer expected that they would proceed to work as usual. Yet he told his employer that he would not work that day unless he was hired as a subcontractor for $51.25 per hour – $20 more per hour than he had been paid the previous two years. Moore presented no evidence to support his claim that his employer fired him; to the contrary, Moore admitted that the employer was "frustrated" and "all ticked off" when faced with the choice of either acceding to Moore’s request for a significant pay raise or losing him as an employee altogether. And, instead of continuing to work while the employer considered his demand for increased pay, Moore left of his own volition and thereafter severed his relationship with the employer. Therefore, under these facts, there is ample support for DES’s finding that Moore voluntarily "terminate[d] the employee-employer relationship." See N.H. Admin. Rules, Emp 503.01(a)(1).

New Hampshire Legal Assistance, of Concord (Sarah Mattson on the brief and orally), for the petitioner.

Michael A. Delaney, attorney general (James S. Culp, attorney on the brief and orally), for the New Hampshire Department of Employment Security.



Appeal of Aspen Contracting NE, LLC (New Hampshire Department of Employment Security)
Department of Employment Security
Submitted: June 13, 2012
Opinion Issued: August 21, 2012
Affirmed
  • Whether the New Hampshire Department of Employment Security erred as a matter of law when it found that the claimants to be employees and Aspen to be an employer subject to N.H. Rev. Stat. Ann. § 282-A.
The petitioner, Aspen Contracting NE, LLC (Aspen), appealed the decisions of the Administrative Hearing Committee (Committee) and the Appeal Tribunal for the New Hampshire Department of Employment Security (DES), as both were sustained by the DES Appellate Board, finding the claimants to be employees and Aspen to be an employer in New Hampshire subject to N.H. Rev. Stat. Ann. § 282-A.

"The purpose of our unemployment compensation statute, RSA ch[apter] 282-A, is to prevent the spread of unemployment and to lighten the burden on those workers who are involuntarily unemployed through no fault of their own." Appeal of Boudreault, 123 N.H. 332, 333 (1983). N.H. Rev. Stat. Ann. § 282-A:9, I (2010) broadly defines "employment" to mean "service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, expressed or implied, together with service performed within the state which constitutes ‘employment’ under the provisions of the Federal Unemployment Tax Act." N.H. Rev. Stat. Ann. § 282-A:9, I; see Appeal of John Hancock Distributors, 146 N.H. 124, 126 (2001).

Here, the Supreme Court found that Aspen has failed to meet its burden of demonstrating that the claimants were not employees under N.H. Rev. Stat. Ann. § 282-A:9, III, or that the findings of the Committee or the Appeal Tribunal were unauthorized, affected by any error of law, or clearly erroneous in view of the record. See Appeal of John Hancock Distributors, 146 N.H. at 129; Appeal of Work-a-Day, 132 N.H. at 293. As a result, the decision was affirmed.
 
McLane, Graf, Raulerson &Middleton, of Manchester (Charla Bizios Stevens and Neil B. Nicholson on the brief, for the petitioner.

Michael A. Delaney, attorney general (Lisa M. English, assistant attorney general, on the brief), for the New Hampshire Department of Employment Security.



Civil Litigation

Karen L. Lawrence v. Philip Morris USA, Inc.
Merrimack Superior Court
Argued: June 7, 2012
Opinion Issued: August 21, 2012
Reversed and Remanded
  • Did the Superior Court err in its application of New Hampshire law when it granted Plaintiff’s Motion for Class Certification?
This case was an interlocutory appeal from an order of the Superior Court that certified a class represented by the plaintiff, Karen L. Lawrence, consisting of "all individuals who purchased Marlboro Lights cigarettes in New Hampshire from January 1, 1995, until the date of trial." See Sup. Ct. R. 8.

In deciding this question, because the parties did not argue otherwise, the Supreme Court assumed, without deciding, that New Hampshire case law discussing the predominance requirement for classes certified under Superior Court Rule 27-A applies. See Petition of Bayview Crematory, 155 N.H. 781, 785-86 (2007). To satisfy the predominance test, the issues common to the proposed class must outweigh the issues that are particular to the individual class members. Id. at 785. The test’s purpose is to promote economies of time, effort, and expense and to promote uniformity of decision as to persons similarly situated. Id. at 785-86. "To achieve these pragmatic goals, the trial court must consider how the case will be tried by identifying the substantive issues that will control the outcome of the case, assessing which issues will predominate, and determining whether those issues are common to the class." Id. at 786.

Accordingly, the trial court must go beyond the facts alleged in the pleadings to understand the claims, defenses, relevant facts, and applicable substantive law and meaningfully determine the certification issues. Cantwell v. J & R Props. Unlimited, 155 N.H. 508, 512 (2007). This rigorous analysis requires that the trial court receive enough evidence, by affidavits, documents, or testimony, to be satisfied that the plaintiff has met each class certification requirement. Id. at 512-13. The trial court must employ its discretion, however, to avoid transforming certification proceedings into "protracted mini-trial[s] of substantial portions of the underlying litigation." Id. at 512 (quotation omitted).

Here, the Supreme Court found that the volume of information available to consumers from 1976 to 1995 about the compensation phenomenon, the Court concluded, as a matter of law, that the number of class members exposed to this information was not de minimis. See Auger v. Town of Strafford, 158 N.H. 609, 614 (2009). Accordingly, the Court concluded that determining the information about Lights to which individual class members were exposed and what they believed are individual issues that will predominate over common ones. See In re Ford Motor Co., 2012 WL 379944, at *14-*15. "Identifying which putative class members purchased under similar circumstances will require individualized inquiries that are impracticable in class litigation." Id. at *15. Therefore, we hold that the trial court unsustainably exercised its discretion when it ruled that issues related to individual class members’ injuries could be resolved by common evidence and that common issues would predominate.

Douglas, Leonard & Garvey, of Concord (Charles G. Douglas and Jason R. L. Major on the brief), and Korein Tillery, of St. Louis, Missouri and Chicago, Illinois (Stephen M. Tillery and Maximilian C. Gibbons on the brief, d Mr. Tillery orally), for the plaintiff.

McLane, Graf, Raulerson &Middleton, of Manchester (Wilbur A. Glahn, III, on the brief and orally), and Arnold & Porter, of New York, New York, and Washington, D.C., (Philip Curtis & a. on the brief), for the defendant.



Criminal Law

The State of New Hampshire v. Joseph Bakunczk
Hillsborough-Southern Judicial District
Argued: June 13, 2012
Opinion Issued: August 17, 2012
Affirmed in part, reversed in part and remanded-.
  • Whether the trial court erred as a matter of law in denying a motion to dismiss one of the charges for insufficiency of evidence.
After a jury trial, the defendant, Joseph Bakunczyk, was convicted of two counts of felonious sexual assault. See N.H. Rev. Stat. Ann. § 632-A:3, III. The Supreme Court affirmed the trial court’s decision. N.H. Rev. Stat. Ann. § 632-A:3, III provides that a person is guilty of felonious sexual assault if such person "engages in sexual contact with a person other than his legal spouse who is under 13 years of age." The defendant challenged his conviction on the indictment alleging that he "engaged in sexual contact with [the victim] . . . by touching her genital area under her clothing . . . ." The defendant does not dispute that the evidence was sufficient to support a finding that he touched the six-year-old victim’s upper thigh between her legs in close proximity to her genitals. He argues, however, that the upper thigh between the legs is not a "sexual or intimate part" as defined by N.H. Rev. Stat. Ann. § 632-A:1, IV. The Court disagreed and found that an "intimate part" means any part of the body the touching of which, for sexual arousal or gratification, is offensive to an objectively reasonable sense of personal dignity, privacy, and modesty. By applying this standard to the facts of this case, the Court found no difficulty in concluding that the victim’s inside upper thigh adjacent to her genitals was an "intimate part" of her body within the meaning of that term in N.H. Rev. Stat. Ann. § 632-A:1.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Bernstein, Mello & Chadwick, of Nashua (Roger Chadwick and Adam Bernstein on the brief, and Mr. Chadwick orally), for the defendant.



The State of New Hampshire v. Josiah Davies
Portsmouth District Court
Argued: May 3, 2012
Opinion Issued: August 17, 2012
Affirmed.
  • Whether the Defendant entered a valid guilty plea when he was not advised of the essential elements of the simple assault charge.
The defendant, Josiah Davies, appealed an Order of the Portsmouth District Court partially denying his Motion to Withdraw his guilty plea and vacate his conviction. The defendant was charged with two counts of false imprisonment and one count of simple assault following a single incident of alleged domestic violence. On June 1, 2009, he appeared pro se for arraignment on the three Class A misdemeanor charges. Prior to his arraignment, he spoke with the prosecutor regarding a potential plea agreement. During this discussion, the defendant indicated his intention to plead guilty, and then signed the acknowledgement and waiver of rights form that the prosecutor provided him. At this time, he was nineteen years old and had a GED and some technical college experience. The scheduled arraignment then went forward as a plea hearing. At the plea hearing the Court failed to advise the Defendant of the essential elements of the charges pending against him. Several months later, the Defendant failed to complete the terms of his plea agreement. The State, in response, brought a Motion to bring forward the sentence. In response, the Defendant, now with the assistance of counsel moved to vacate his guilty pleas.

It is well-established that to be valid, a guilty plea must be knowing, intelligent, and voluntary. E.g., State v. Dansereau, 157 N.H. 596, 603 (2008). "A guilty plea does not qualify as intelligent unless the defendant first receives real notice of the true nature of the charge against him." State v. Arsenault, 153 N.H. 413, 416 (2006). Therefore, prior to pleading guilty, the defendant must be informed of every essential element of the alleged offense and the court must determine that the defendant understands the charge. State v. Kinne, 161 N.H. 41, 47 (2010).

The trial court record revealed that the trial court affirmatively inquired into the defendant’s knowledge and the volition of his plea. As a result, the burden remained with the defendant to demonstrate by clear and convincing evidence that the trial court was wrong and that his plea was either involuntary or unknowing for the reason he specifically claims. Kinne, 161 N.H. at 47. While the defendant noted his age and "limited prior history and experience with the criminal justice system," these factors were insufficient to compel a finding that his plea was unknowingly entered. Accordingly, the district court’s decision was affirmed.

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally) for the State.

David M. Rothstein, deputy chief appellate defendant, of Concord, on the brief and orally, for the defendant.



The State of New Hampshire v. Bryan Alwardt
Hillsborough-Northern Judicial District
Argued: April 11, 2012
Opinion Issued: August 17, 2012
Affirmed
  • Whether the trial court erred in: (1) failing to dismiss the assault charge due to insufficient evidence; (2) failing to dismiss the criminal restrain charge as against the weight of the evidence; (3) not ordering disclosure of all the victim’s counseling records; and (4) prohibiting cross-examination of the victim regarding certain drugs found in her boyfriend’s apartment.
Following a jury trial in Superior Court the defendant, Bryan Alwardt, was convicted of second degree assault and criminal restraint based on accomplice liability principles. See N.H. Rev. Stat. Ann. § 631:2, I(c), § 633:2 and § 626:8 (2007).

As to the first two issues the Court found that the trial court did not err in dismissing either of the charges as there was sufficient evidence and proper weight given to the evidence. With regard to the counseling records, after review the Supreme Court was are satisfied that the withheld portions of the records contain no information that would have been of assistance to the defense and that the trial court sustainably exercised its discretion in ordering the records redacted prior to disclosure. See State v. Guay, 162 N.H. 375, 385 (2011). As to the issue prohibiting cross examination of the victim regarding certain drugs found in her boyfriend’s apartment, the Court found that considering the record as a whole, it could not say that the trial court denied the defendant a constitutionally adequate level of cross-examination exposing issues bearing on the victim’s credibility and bias. See Stowe, 162 N.H. at 470-71.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally),or the State.

Stephanie Hausman, assistant appellate defendant, of Concord, on the brief and orally, for the defendant.



Family Law

In the Matter of Christian A. Poulin and Rose Marie (Poulin) Wall
Appeal from the 9th Circuit – Goffstown Family Division
Argued: June 7, 2012
Opinion Issued: August 7, 2012
Reverse and remand.
  • Whether the trial court erred in ruling that it did not have the authority to enforce the college expense provision in the parties’ divorce decree because the provision clearly provided that each parent would contribute to the college expenses to the extent each party was financially able after financial aid, scholarships and any children’s savings are considered.
The parties divorced in October 1996 and entered into a permanent stipulation, which was incorporated, by reference, into the divorce decree. The stipulation included the following provision, in which the parties agreed to contribute to their two children’s college expenses: The parties agree to contribute to their children’s college education to the extent each party is financially able. The actual contributions shall be determined when each child is near college age. A child, entering college, in the first instance, however, shall apply for financial aid or use her own savings for said expense. Both parties shall cooperate in completing any financial aid application. Their younger daughter was accepted at Southern New Hampshire University. She received a scholarship, as well as a loan covering a portion of the cost for tuition and room and board for the 2011-2012 academic year. The Mother requested that the Father contribute 75% of the remaining costs. The Father responded by offering to pay some amount, but the parties could not agree on the amount and the Father has not yet contributed to the younger daughter’s college expenses at all.

The Mother then filed a "Petition to Bring Forward and for Contempt," requesting the court to find the Father in contempt of the college expense provision of the divorce decree, and apparently asking the court to enforce the provision from the parties’ stipulation. The Father objected and moved to dismiss, arguing that the petition should be dismissed because "there is no Court order or decree that orders [the Father] to contribute a set percentage or specific dollar amount to" their younger daughter’s college expenses. After a hearing on July 18, 2011, the trial court dismissed the Mother’s petition because "[t]he provision at issue in the parties’ divorce decree lacks specificity." In support of its ruling, the trial court cited In the Matter of Scott & Pierce, 160 N.H. 354 (2010). This appeal followed.

Here the Court found that at the time the parties divorced, the trial court had "‘broad discretionary’ powers to order divorced parents to contribute to their children’s college expenses under N.H. Rev. Stat. Ann. § 458:17,I and § 458:20". However, in 2004, the legislature amended § 458:17 to provide that "[n]o child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school." N.H. Rev. Stat. Ann. § 458:17, XI-a (2004) (recodified as N.H. Rev. Stat. Ann. § 461-A:14, V (Supp. 2011)). Shortly after the 2004 amendment was enacted, the Court decided that the statute did not apply retroactively and, therefore, "does not mandate the trial court to vacate [a] provision in [a pre-existing] divorce decree that requires [parents] to contribute to their children’s college education." Here, in contrast, the Mother and the Father were ordered to contribute, leaving only the specific amount to be determined at a later date. This is a material difference. When the parties’ stipulation was incorporated into the divorce decree, it became an order. Because the parties’ divorce decree ordered them to contribute to their children’s college expenses in a "specific proportion," i.e., "to the extent each party is financially able" after deducting financial aid and the child’s own savings, the trial court has authority to enforce it. Accordingly, the trial court’s ruling that it could not enforce the college expense provision constituted an error of law.

Bossie & Wilson, of Manchester (Jon N. Strasburger on the brief and orally), for the appellant.

Devine, Millimet & Branch, of Manchester (David P. Eby and Heidi A. Ames on the brief, and Mr. Eby orally), for the appellee.



In re D.B.
Manchester Family Division
Argued: January 18, 2012
Resubmitted: July 20, 2012
Opinion Issued: August 14, 2012
Reversed.
  • Whether there was sufficient evidence for the trial court to find that a minor committed sexual assault against the complainant pursuant to the variant charged.
The Court found that the trial court record supported the following facts. In May 2010, the juvenile and the complainant, also a juvenile, regularly rode the school bus together. On May 19, the juvenile sat next to the complainant on the bus ride home. The complainant testified that during the ride, the juvenile put his hand down her shirt and touched her breasts. She further stated that he put his hand down her pants and "ran it" down to her ankle. The complainant repeatedly told the juvenile to stop, but he did not. She testified that, immediately after the incident, the juvenile told her, "[I]f you tell anyone, I’ll rape you every single month til we get pregnant and I’ll hurt your little brother." A week later, the complainant reported the incident to a guidance counselor.

The juvenile was charged with misdemeanor sexual assault, see N.H. Rev. Stat. Ann. § 632-A:4, I(a), and witness tampering, see N.H. Rev. Stat. Ann. § 641:5 (2007). The sexual assault petition alleged that the juvenile "did commit the crime of sexual assault in that he purposefully subjected the complainant (15 years old) to sexual contact without her consent by squeezing her breasts and touching her nipples with his hand by overcoming the victim through the actual application of physical force."

The complainant wrote a statement describing the incident and provided it to the police. Although the statement was not admitted into evidence at trial, the complainant agreed, in response to questioning, that in the statement she wrote that when the juvenile reached underneath her clothes, he "squeezed and rubbed" her breasts, and "touched [her] privates and . . . rubbed them." She also agreed that in her statement, she described the juvenile’s conduct as "hurting" her and being "rough." In addition to the complainant’s testimony, the State presented at trial a surveillance video of the May 19 bus ride. The complainant testified that she did not alert other students on the bus at the time of the incident because she "did not want to get in trouble," "did not want other people to know," and "was in shock." At the close of the State’s case, and at the end of the trial, the juvenile moved to dismiss the sexual assault charge for lack of sufficient evidence. Subsequently, the trial court found the juvenile delinquent on both charges. On appeal, the juvenile challenges only the sexual assault delinquency finding.

Under the charged variant of misdemeanor sexual assault, a person is guilty when he "subjects another person who is 13 years of age or older to sexual contact" and "overcomes the victim through the actual application of physical force, physical violence or superior physical strength." N.H. Rev. Stat. Ann. § 632-A:4, I(a); N.H. Rev. Stat. Ann. § 632-A:2, I(a). "Sexual contact" is defined as "the intentional touching whether directly, through clothing, or otherwise, of the victim’s or actor’s sexual or intimate parts, including emissions, tongue, anus, breasts, and buttocks," and includes only the "aforementioned conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification." N.H. Rev. Stat. Ann. § 632-A:1, IV. Under the plain language of the statutory variant charged here, the actor must "overcome the victim through the actual application of physical force, physical violence or superior physical strength." As a result, the State must prove the use of actual physical force, and not simply lack of consent, to support a delinquency finding under the variant. In light of this ruling the Court did not reach the juvenile second argument.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State

Dorothy E. Graham, assistant appellate defender, of Concord, on the brief and orally, for the juvenile.



In re the Matter of Kimberly J. Nicholson and John P. Nicholson
10th Circuit Court – Brentwood Family Division
Argued: June 7, 2012
Opinion Issued: August 21, 2012
Reversed and Remanded.
  • Whether the court erred as a matter of law in its calculation of the arrearage due and owing pursuant to the Uniform Support Order.
This is an appeal from an order of the 10th Circuit Court – Brentwood Family Division finding the respondent, John P. Nicholson (Father), to be $28,556, plus interest, in arrears on child support obligations to the petitioner, Kimberly J. Nicholson (Mother). The Supreme Court reversed and remanded the case.

The Mother and the Father were married and had three children. The parties divorced in 2000, at which time all of their children were minors. The terms of the divorce were set out in the parties’ permanent stipulation, which was approved and ordered by the court. The stipulation incorporates a "Uniform Support Order" (USO), and provides that the Father is to pay $244 per week in child support. In April 2011, the Mother filed a motion for contempt arguing, among other things, that the Father had unilaterally reduced the amount of support when their oldest child graduated from high school in May 2007 and that he has paid no support at all since April 16, 2009. The Father objected and argued that the final decree entitled him to reduce his child support payments as each child became emancipated because the decree states that child support "shall continue until the children reach the age of 18 or graduates from high school, whichever shall last occur." He argued that "[t]he parties understood this to mean that the child support would be reduced by $82.00 as each child graduated from high school or reached age 18 years, whichever was later." The Father also argued that the petitioner had agreed to this reduction.

The court did not decide whether there was an agreement between the parties to reduce support payments. Instead, it concluded that even if there had been such an agreement, it would not be enforceable because, pursuant to In the Matter of Laura & Scott, 161 N.H. 333 (2010), parties may not modify child support orders through private agreement. The trial court found the Father to be in arrears, and calculated the amount due without making adjustments for the emancipation of the two older children. It did acknowledge, however, that the Husband’s support obligation terminated upon the emancipation of the youngest child on July 11, 2011.

The Court first held that it agreed with the trial court in that any alleged agreement between the parties outside of the approved stipulation regarding child support payments is not enforceable. Parties may not modify orders of the court through private agreement. See In the Matter of Laura & Scott, 161 N.H. 333 (2010). The Court further found that the to the plain language of the SO, in calculating the support arrearage, the trial court was obligated to retrospectively recalculate child support as of the dates upon which each of the two older children became emancipated. That the parents failed to obtain a court order modifying the support obligation when each child’s status changed is was of no consequence. Accordingly, the Court reversed the trial court’s arrearage calculation and remanded the case for a calculation of the arrearage.

Marshall Law Office, of East Kingston (Keri J. Marshall on the brief, and Brian D. Kenyon orally), for the petitioner.

Law Office of Leslie J. Johnson, of Center Sandwich (Leslie H. Johnson on the brief and orally), for the respondent.



Insurance Law

The Barking Dog, Ltd. v. Citizens Insurance Company of America
Rockingham County Superior Court
Argued: April 11, 2012
Opinion Issued: August 17, 2012
Affirmed.
  • Whether the Court erred when it ruled that an insurance policy issued by the Defendant provided coverage for damage to the Plaintiff’s septic system.
     
  • Whether the Defendant was prejudiced by the Plaintiff’s failure to disclose its expert’s report in a timely manner.
This case was an appeal from a declaratory judgment proceeding. The Defendant, Citizens Insurance Company of America, appeals an order of the Superior Court ruling in favor of the plaintiff, The Barking Dog, Ltd., which operates a dog kennel and grooming business at several locations in New Hampshire. The court ruled that an insurance policy (the policy) issued by the defendant provides coverage for damage to the plaintiff’s septic system and ordered the defendant to pay the plaintiff $20,000, the agreed upon damage amount. The court also ruled that the defendant was not prejudiced by the plaintiff’s failure to disclose its expert’s report in a timely manner or its failure to disclose its expert’s curriculum vitae and, accordingly, permitted the plaintiff’s expert to testify at trial. The defendant argued that both rulings were erroneous as a matter of law.

In a declaratory judgment proceeding to determine the coverage of an insurance policy, the burden of proof is on the insurer. Carter v. Concord Gen. Mut. Ins. Co., 155 N.H. 515, 517 (2007); N.H. Rev. Stat. Ann. § 491:22-a (2010). After considering the experts’ testimony and the policy provisions, the court concluded that "given the cause of this loss, the policy provisions are ambiguous." It explained that "any ambiguity in insurance policies inures to the benefit of the policy holder," and thus ruled that the loss is covered under the policy. Here the New Hampshire Supreme Court found that the damage incurred was covered by the insurance policy based upon the plain reading of the policy.

With regard to the late filed expert report, the Court held that it would uphold the trial court’s decision to admit evidence absent an unsustainable exercise of discretion. State v. Roldan, 151 N.H. 283, 286 (2004). "This same standard applies to review of the trial court’s decision with respect to alleged discovery violations." State v. Gamester, 149 N.H. 475, 478 (2003). "To show that the trial court’s decision is not sustainable, the defendant must demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of his case." Roldan, 151 N.H. at 286. "In the context of a discovery violation, actual prejudice exists if the defense has been impeded to a significant degree by the nondisclosure." Id. at 287. Here, the Court found that the defendant failed to established that it suffered actual prejudice and accordingly affirmed the trial court’s decision.

Hoefle, Phoenix, Gormley & Roberts, (Lawrence B. Gormley on the brief and orally), for the plaintiff.

Robinson & Cole, of Boston, Massachusetts (Caryn L. Daum on the brief and orally), for the defendant.



Municipal Law

Town of Atkinson v. Malborn Realty Trust
Rockingham Superior Court
Argued: June 13, 2012
Opinion Issued: August 17, 2012
Affirmed in part; modified in part; reversed in part; and remanded
  • Whether the trial court erred as a matter of law when it issued an injunction permanently enjoining the respondent from occupying property without an occupancy permit.
     
  • Whether the trial court erred as a matter of law when it imposed a civil penalty against the respondent.
     
  • Whether the trial court erred in failing to award the petitioner attorneys’ fees.
The respondents, Malborn Realty Trust and its trustee, Daniel Osborn, appealed an order of the Superior Court that enjoined Osborn from occupying property in Atkinson because he lacked an occupancy permit and that imposed a civil penalty for this violation. See N.H. Rev. Stat. Ann. § 676:15 (2008). The petitioner, Town of Atkinson (Town), cross-appealed the trial court’s failure to award it attorney’s fees. See N.H. Rev. Stat. Ann. § 676:17, II. The New Hampshire Supreme Court affirmed the trial court’s issuance of the injunction, modified its imposition of civil penalties, reversed its denial of attorney’s fees, and remanded the case back to the Superior Court.

After conducting a bench trial and a view of the premises, the trial court: (1) permanently enjoined Osborn from occupying the premises without a certificate of occupancy; (2) ruled that no certificate of occupancy could be issued until a sprinkler system is installed in the house; and (3) imposed a civil penalty of $109,725. The trial court also ruled that the Town was the prevailing party and was entitled to its reasonable attorney’s fees pursuant to See N.H. Rev. Stat. Ann. § 676:17, II. Although the court originally awarded the Town reasonable attorney’s fees of $20,000, it later vacated this award in its entirety in response to the respondents’ motion for reconsideration. This appeal and cross-appeal followed. The respondents challenge the trial court’s decision to issue the requested injunction and, alternatively, its calculation of the civil penalty. In its cross-appeal, the Town challenges the trial court’s denial of its request for an award of reasonable attorney’s fees.

With regard to the first issue, the Supreme Court held that it was within the trial court’s sound discretion to grant an injunction after consideration of the facts and established principles of equity. N.H. Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007). As a result, the Supreme Court upholds the trial court’s factual findings unless the evidence does not support them or they were erroneous as a matter of law. Rabbia v. Rocha, 162 N.H. 734, 738 (2011). Here, the Court did not find the trial court committed an error or law or an unsustainable exercise of discretion, or made erroneous findings of fact and upheld its decision to enjoin Osborn from occupying the premises.

With regard to the civil penalty, under the plain meaning of N.H. Rev. Stat. Ann. § 676:17, I, the civil penalty imposed is $275 per day "for the first offense" and $550 per day "for subsequent offenses." Reading N.H. Rev. Stat. Ann. § 676:17, I, as a whole, the Court concluded that the word "offense" refers to the violation(s) for which "the violator receives written notice from the municipality that the violator is in violation." Here, because the Town issued only one notice of violation, only a "first offense" is at issue. Pursuant to N.H. Rev. Stat. Ann. § 676:17, I, therefore, the respondents are subject to a penalty of $275 for each of the 200 days of this offense ($275 x 200 = $55,000). Accordingly, the Court reduced the civil penalty imposed to $55,000.

Finally, with regard to the third issue, the Court held "[a] prevailing party may be awarded attorney’s fees when that recovery is authorized by statute, an agreement between the parties, or an established judicial exception to the general rule that precludes recovery of such fees." Bennett v. Town of Hampstead, 157 N.H. 477, 483 (2008). N.H. Rev. Stat. Ann. § 676:17, II provides that in an enforcement action, such as the one in this case that "the municipality shall recover its costs and reasonable attorney’s fees actually expended in pursuing the legal action if it is found to be a prevailing party." An award of prevailing party attorney’s fees under this section is mandatory. Id. at 484-85. Accordingly, the Court reinstated the award of attorneys’ fees.
 
Sumner F. Kalman, Attorney at Law, of Plaistow (Thea S. Valvanis and Sumner F. Kalman on the brief, and Mr. Kalman orally), for the petitioner.

McGrath Law Firm, of Concord (Peter McGrath and Jason Beecher on the brief, and Mr. McGrath orally), for the respondents. 
 

Christopher J. Somma


Christopher J. Somma 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 an attorney in the Boston office of Goodwin Procter, in the Consumer Financial Services Litigation Department, where he focuses on lender liability claims in state courts, bankruptcy courts, and federal courts in Massachusetts, Maine, and New Hampshire.

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New Hampshire Bar Association
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phone: (603) 224-6942 fax: (603) 224-2910
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