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Bar News - March 22, 2013

NH Supreme Court At-a-Glance: February 2013


Administrative Law Ė Contract Law

Lakes Region Gaming v. Jeremy Miller, No. 2011-394
Feb. 13, 2013
  • Whether the trial court erred in interpreting the contract terms allowing for competition among the parties when it found a breach of fiduciary duties by the defendant
A member of the plaintiff, Gistis, and Johnston, a defendant no longer involved in the case, agreed to jointly purchase the Lakes Region Greyhound Park in Laconia. The member put up the deposit money required under the court-approved bidding process, and Johnston agreed that he and his development team would bid on the racetrack.

Gistis and Johnston secured the right to purchase the track for a certain sum, and Gistis wired the deposit to the sellerís attorney. Gistis, Johnston and three others (including Miller) then formed Lakes Region Gaming LLC, to own and maintain the track. Johnston contributed his right to purchase the track as capitalization for the company.

The Plaintiff LLC elected not to purchase the track due to the indictment of a dozen people associated with the track before the conclusion of the due diligence period. The members decided to try to sell the right to purchase instead. Unbeknownst to the other members, Johnston and Miller were already negotiating the sale of the right to purchase at that time and had arranged for the eventual buyer to essentially replace the deposit money, which was then refunded to Gistis. The right to purchase was sold, and the purchaser paid Johnston and Miller, to the exclusion of the other LLC members.

The trial court held that Miller had breached a fiduciary duty by using Gistisí/Lake Region Gamblingís deposit money to hold the right to purchase while he negotiated with the eventual purchaser. After dismissing most of the issues raised on appeal for inadequate briefing or failure to object in the lower court, it turned to the "competition" clause in the contract.

The Court found that Miller misinterpreted the contract provision. It held that because what Miller was using to negotiate with (the right to purchase and the escrowed deposit) belonged to Lakes Region Gaming it was a breach of fiduciary duties for him to appropriate the profits from negotiations of those assets to himself.

Jeffrey Spear of Orr & Reno, Concord for Plaintiffs. R. James Steiner of Concord for the defendant.

Criminal Law

State v. Lynn Dion, No. 2011-786
Feb. 8, 2013
  • Whether driving while talking on a cell phone was criminally negligent and
  • Whether the trial court erred in allowing evidence of certain cell phone records
The defendant struck two pedestrians who were walking in a crosswalk. The State presented as evidence phone records that showed during the defendantís 37-minute trip, she made and received numerous calls, sometimes using call waiting to switch back and forth between two callers. The evidence further showed that she made a call that was picked up by the recipientís voicemail, but no message was left and the call disconnected after four seconds. About 90 seconds later the defendant called 911 regarding the collision.

The Court distinguished this case from State v Shepard, 158 NH 743 (2009), where it had previously held evidence of going over the yellow line for two seconds was insufficient as a matter of law for a finding of criminal negligence. In this case, the Court said, the State had only to prove that the defendantís cell phone use had reached a level of "carelessness the seriousness of which should be apparent to anyone who shares the communityís general sense of right and wrong."

The Court upheld the admission of the defendantís cell phone records, as it found them "inextricably intertwined" with the charged conduct. It therefore reasoned that Rule 404(b) was inapplicable to the records and instead applied only Rule 403. The Court concluded that the recordsí probative value was not substantially outweighed by any prejudicial impact.

Susan McGinnis, Attorney Generalís Office for the State. Allison Ambrose of Wescott, Dyer, Fitzgerald & Nichols, Laconia for the defendant.

State v Eschenbrenner, No. 2011-595
Feb. 8, 2013
  • Whether the trial court erred in granting a new trial for ineffective assistance of counsel when counsel failed to object to certain statements of police officers
Two police officers who each investigated the same child sex abuse allegations (one in 1998 when the event occurred, the other in 2006) testified regarding their training and experience regarding investigation of child sexual abuse cases and how that affected the decisions they made during the investigations.

On cross-examination, the officer who discontinued the investigation in 1999 was asked to describe the victimís demeanor during the 1999 interview and what action she took subsequent to the interview. The officer testified that the victim appeared "carefree" and not emotionally upset and admitted she took no further action after filing her report. On redirect, the officer testified as to her post-1999 training in the investigation of child sexual assaults and that education taught her that dissociation is a common defense mechanism for victims and said she now regarded her failure to follow up the investigation as a mistake.

The trial court found counselís failure to object to this non-disclosed expert testimony ineffective and that this testimony improperly commented on the victimís credibility. The Court agreed with the State that the testimony fell within the specific contradiction rule for otherwise inadmissible evidence because defenseís cross gave the jury the false impression that the officer did not believe the victim.

The detective who picked up the investigation in 2006 testified about the victimís demeanor during her 2006 interview by child sexual abuse specialists and his subsequent decision to seek a warrant for the defendant. The trial court found that this testimony would have been excluded had the defense objected and their failure to do so was ineffective assistance, a ruling not disputed by the State on appeal. However, the Court noted that the trial court analyzed both officers disputed testimony together to reach the conclusion that trial counselís failures were prejudicial to the defendant. Because the Court found the original investigating officerís testimony not excludable, it went on to analyze the detectiveís testimony in isolation for prejudicial qualities.

Finding the detectiveís testimony not dissimilar to an officer testifying as to what he heard another officer say over the radio, the Court found that at most it was an indirect endorsement of the victimís credibility and independently relevant to provide context as to how the defendant came to be arrested and interviewed by the detective. Therefore, in light of all the other evidence at trial, the Court found that trial counselís failure to object to the detectiveís testimony did not cause actual prejudice to the defendant.

Nicholas Cort, Attorney Generalís Office for the State. Philip Utter of Green & Utter, Manchester for the Defendant.

State v. Daniel Casanova, No. 2011-570
February 13, 2013
Affirmed in part / Reversed in part
  • Whether failure to charge the exact subcategory of aggravated felonious sexual assault was fatal to a charge of attempted aggravated sexual assault
  • Whether the attempted kidnapping charge was part of the attempted aggravated felonious sexual assault and the defendant was therefore wrongly convicted of both
The defendant was charged with attempted AFSA and attempted kidnapping for luring a 7-year-old girl to a clearing some distance from her home, pulling down her bathing suit and briefly reaching out and touching her hand when she first started to leave.

The defendant argued that since the indictment failed to allege which of the various kinds of AFSA he attempted to commit (i.e. engage in sexual penetration with the child or intentional genital touching for sexual gratification) that he was denied a unanimous verdict of the jury since they could have convicted him under different facts. The Court concluded that because the defendant was charged with an inchoate offense, the State was not required to plead and prove the elements of the intended offense.

However, the Court agreed with the defendant that under the circumstances of this case, the merger doctrine applied to the attempted kidnapping offense. Because the "abduction" in question was in furtherance of the attempted AFSA and not a separate offense of its own, the Court reversed his conviction on that charge.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior 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 defendant.

Labor Law Ė Public Employer/Employee

Appeal of Laconia Patrolman Association, No. 2012-057
Feb. 8, 2013
  • Whether the NH Public Employee Labor Relations Board (PELRB) erred in not finding the Laconia Police Commission engaged in unfair labor practices
The Laconia Policy Commission and Laconia Patrolman Association negotiated terms, and the city manager made suggested changes, that the parties agreed to make in formulating a labor contract. Upon presentment of the approved agreement to the city council, the city manager reversed his position, and the council ultimately rejected the contract.

The Association charged that the policy commission committed an unfair labor practice by not ensuring the city council voted within 30 days, by allowing the council to interfere in the negotiation process, and by rescinding a post-collective bargaining agreement step increase the commission had approved prior to the council cutting its budget.

The court agreed with the PERLB that the commission could not be held liable for the Councilís failure to discharge its statutory obligation to vote within 30 days. The Court further agreed with the PERLB that there was insufficient evidence to show the commission had allowed the council to take over negotiations.

The Court upheld the PERLB finding that there was no unfair labor practice regarding step raises on alternate grounds. The Court reiterated the proposition that post-collective bargaining agreement step raises are discretionary, and the commission was therefore free to rescind them.

John Krupski of Molan, Milner and Krupski, Concord for the Petitioner. Mark Broth and Laurel VanBuskirk of Devine, Millemet and Branch, Manchester for the Respondent.

Landlord/Tenant law

Mary Evans v. J Four Realty, Inc. No. 2012-198
Feb. 13, 2013
Affirm in part, reverse in part, and remand.
  • Whether a purchaser at foreclosure is a "landlord" as to prior tenants at will for purposes of RSA 540-A
J Four Realty purchased a resort at foreclosure. Mary Evans had been a tenant at will of an apartment within the resort and continued making rent payments to the former owners, unaware of the foreclosure until the day the real estate company showed up with a sheriff and local police officer and demanded she vacate the premises that day. She did, then sued the company for their self-help eviction under RSA 540-A and recovered actual damages, attorneyís fees and costs.

The Court agreed with the company that it was not subject to RSA 540-A. In doing so, it distinguished this case from one in which a tenancy at sufferance followed a tenancy at-will with the same owner. Because the plaintiff and defendant in this case were never in privity, the same rule did not apply. The Court failed to find that the company ever "rente[ed] or lease[d]" the apartment and, therefore, found that it was not a landlord as defined by statute.

The Court went on, however, to find that the Plaintiff still had remedies against a self-help eviction under RSA 540 and that previous case law makes it clear that a purchaser at a foreclosure sale may not use self-help to evict a tenant. The Court remanded the case to the trial court so the Plaintiff could seek to amend her original writ.

Sandra Cabrera of Waystack Frizzell, Trial Lawyers, Colebrook for the Petitioner. Brian Shaughnessy of Kazan, Shaughnessy, Kasten & McDonald, Manchester for the Respondent.

Tax Law / Contract Law

Signal Aviation Services v. City of Lebanon, No. 2012-364
Feb. 13, 2013
Affirm in part, reverse in part, and remand.
  • Whether the trial court erred in dismissing Signalís claims regarding disproportionate taxation and breach of contract for lack of jurisdiction
Signal Aviation was the owner of rights to a contract to lease land at the Lebanon municipal airport under which the City agreed not to allow any other provider of air services to operate at "rates, terms or conditions" more favorable than the contracted ones. Signal alleged that it had been taxed disproportionately to its similarly situated neighbors at the airport and that the effect of the disproportionate taxation was to treat the parties unequally and that this violated the terms of the lease contract. The trial court agreed with the City that both these claims amounted to a request for tax abatement and therefore found that Signal must proceed through the statutory scheme for tax abatement.

The Court agreed that Signalís claim regarding disproportionate taxation was subject to the tax abatement statutory scheme, regardless of how they framed the issue. However, the Court reversed and remanded on the issue of whether the City treated Signal unequally in relation to other airport tenants, in violation of the lease contract.

Stephen Girdwood, Lebanon, for the Petitioner. Adele Fulton and Joshua Pantesco, Gardner, Fulton & Waugh, Lebanon for the Respondent.

James Shepard

Attorney Shepard was admitted to the NH Bar in 2006 after graduating from the University of Maryland School of Law. He has spent the majority of his career working in various legal positions in state government and enjoying a micro-family law practice, including DOVE representation on the side. His principal office is in Concord.

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