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Bar News - July 19, 2013

NH Supreme Court At-a-Glance: June 2013


Administrative Law

Town of Newbury & a. v. New Hampshire Fish and Game Department & a., No. 2012-705
June 28, 2013
Reversed and remanded
  • Whether the trial court erred in ruling that the New Hampshire Council on Resources and Development (CORD) approval of the design of a boat launch exceeded its statutory authority
CORD-owned property in Newbury includes a 3.3-mile parcel abutting Lake Sunapee. NH Fish & Game Department (F&G) manages the property on behalf of CORD. In this role, F&G designed a boat launch for public access to Lake Sunapee. At a meeting in April 2012, petitioners Town of Newbury and Lake Sunapee Protective Association, objected to the proposed boat launch. They argued that CORD lacked authority to approve a boat launch. Even so, CORD determined that it had the authority to approve the launch and approved the design. Consequently, petitioners sued, seeking a writ of certiorari challenging CORD’s decision to approve. The trial court ruled in favor of the petitioners, determining that CORD exceeded its authority because a boat launch is a class III-a public highway. The court held that CORD had no authority to approve “new highway projects.”

On appeal, the Court disagreed with the lower court’s interpretation of the relevant statute. In particular, the Court noted that the prohibition on new highway projects only applies when the NH Department of Transportation seeks to obtain public land and thus transfer the property from the public. In the case at bar, DOT was not involved. Moreover, F&G did not obtain property rights in the land and merely sought to manage the construction of the boat launch. As such, the Court ruled that the trial court erred.

Michael A. Delaney, attorney general (K. Allen Brooks), senior assistant attorney general, on the brief and orally), for the respondents; Gregory H. Smith, of McLane, Graf, Raulerson & Middleton, of Concord, for the petitioner.

Appeal of Lake Sunapee Protective Association & a., No. 2012-255
June 28, 2013
  • Whether the trial court erred in upholding a decision of the Department of Environmental Services (DES) to grant a shoreland impact permit to the NH Department of Fish & Game (F&G) to construct a boat launch, because the DES decision violates the Shoreland Water Quality Protection Act
In a case related to the same project as the case above, DES granted a shoreland impact permit to F&G to build a boat launch on Lake Sunapee. Petitioners appealed this decision to the Wetlands Council. Petitioners claimed before the Wetlands Council that DES failed to consider all of the statutory standards when evaluating the boat launch plan, because it failed to consider whether the proposal was necessary. The Wetlands Council ruled in favor of F&G, and the petitioners subsequently appealed to the trial court.

Petitioners assert two claims. First, petitioners claim DES incorrectly granted a shoreland impact permit, because DES did not consider whether the boat launch was “necessary.” The relevant statute states that DES “shall” issue permits “as necessary and consistent with the purposes of… state law.” However, the Court notes that “necessary” in the relevant statute cannot be intended to mean that only necessary projects may be built. Given that DES grants permits to other state agencies, the Court refused to interpret the statute such that DES would be evaluating the necessity of other state entities’ projects.

Second, the petitioners assert that DES failed to consider all 16 goals listed as the purposes of this legislative grant. Before DES may grant a permit, it must evaluate the proposed boat launch against all of these goals. However, the Court examined the Wetlands Council’s findings and held that the Wetland Council did not err in determining that DES reviewed the proposal against these standards.

Justin C. Richardson, of Upton & Hatfield, of Portsmouth, for the petitioner; Town of Newbury, Gregory H. Smith, of McLane, Graf, Raulerson & Middleton, of Concord, and Michael A. Delaney, attorney general (Evan J. Mulholland, assistant attorney general), for the respondent.

Appeal of Thomas Morrissey & a., No. 2012-405
June 5, 2013
Vacated and remanded
  • Whether the Wetland Bureau and Wetlands Council erred in neglecting to consider the total wetlands impact of a proposed project
Petitioners appeal a ruling of the New Hampshire Department of Environmental Services (DES) affirming the issuance by the Wetlands Bureau of a wetland permit to the respondent Town of Lyme. Petitioners own property that abuts a local pond and wetlands. In July 2009, the town submitted two applications to the Wetlands Bureau. The town sought an after-the-fact permit to retain two unpermitted beaver pipes it installed in 2007. The town also applied to add fill to the recreation area bordering the pond. Petitioner objected to both applications at a public hearing. The Wetlands Bureau denied the after-the-fact permit, but granted the permit to add fill. Petitioners moved for reconsideration, arguing that the town’s overall plan was to raise the recreation area and lower the pond as a single project. Further, they claimed that the application was incomplete because it did not consider all of the wetlands impacts of the project. The Bureau denied reconsideration, stating that it had no authority to regulate the town’s activity relative to the water level of the pond. The Bureau stated that its ruling was consistent with the recently-issued Supreme Court opinion on the topic (Morrissey I).

On appeal, petitioners argue that the Wetlands Council erred in determining that Morrissey I precluded their challenge to the issuance of a permit. They claim res judicata or collateral estoppel do not apply, because they advance a different cause of action from the claims in Morrissey I. The Court sides with the petitioners, stating that Morrissey I does not preclude petitioners’ claims under res judicata because Morrissey I did not result in a final judgment on the merits. In Morrissey I, petitioners sought a writ of mandamus that did not issue. Thus, the Court did not determine the merits of that case, and so res judicata did not apply.

Further, the Court states that collateral estoppel does not apply because the petitioners are asserting different claims than in Morrissey I. Namely, the question of whether the town is legally obligated to maintain the water level of the pond above or below a certain level is not at issue in the instant case. Rather, the petitioners asked the Court to consider whether DES properly declined to consider the town’s activity relative to the water level in the pond, because the activity itself did not require a permit.

Petitioners claim that DES erred in failing to consider the total environmental impact of the project. The Court states that DES indeed erred because DES administrative rules set forth that any applicant for a permit must demonstrate that the applicant considered the impact of the proposed project to areas and environments under DES jurisdiction. New Hampshire administrative rules expressly state that this consideration includes assessing the relationship of the proposed wetlands to be impacted, relative to nearby wetlands and the impact of the proposed project on the values and functions of the wetlands. As such, the Court ruled that DES erred in failing to consider the total wetlands impact of the proposed project, and the Court vacated and remanded to the Council for further proceedings consistent with the opinion.

Christopher G. Aslin, on the brief and orally, and Gregory E. Michael on the brief, of Bernstein, Shur, Sawyer & Nelson, of Manchester, for the petitioner; Robert F. Callaghan, Jr., on the brief, and Christopher D. Hawkins, orally and on the brief, of Nelson Kinder + Mosseau, of Manchester, for the respondent.

Civil Procedure

Kimball Union Academy v. John Genovesi & a., No. 2012-492
June 28, 2013
  • Whether the trial court erred in determining that the court could exercise personal jurisdiction over the defendant under the long-arm statute and under the Due Process Clause of the United States Constitution
At trial, defendant John Genovesi sought to dismiss a claim for professional negligence based on lack of personal jurisdiction. The trial court refused to dismiss the claim. Plaintiff Kimball Union Academy (KUA) hired JDE to design and build a field house. JDE hired Genovesi to provide design work for the footings and foundation system of the proposed fieldhouse. He failed to complete his design work prior to commencement of construction. Genovesi failed to provide key information essential to construction and as required by applicable building codes.

Genovesi argues that the court lacked personal jurisdiction under the long-arm statute because the defendant never went to NH and all his transactions were with JDE, which is a Florida corporation. The Court finds personal jurisdiction because the injuries caused by the tortuous act occurred in New Hampshire. A party commits a tort within the state when an injury occurs in New Hampshire, even if the injury results from acts outside the state. As such, the defendant’s conduct is sufficient to provide personal jurisdiction under the long-arm statute. The Court notes that the long-arm statute in New Hampshire is interpreted to the extent of the due process clause of the US Constitution.

The defendant further argues that, even though the allegedly tortuous activity occurred in New Hampshire, the court could not exercise personal jurisdiction because JDE’s work did not conform to Genovesi’s designs. However, the Court states that any questions as to JDE’s negligence in conforming to Genovesi’s plans would be a merits question, not a jurisdictional issue.

Also, Genovesi argues that he lacked sufficient minimum contacts with New Hampshire such that his due process rights under the US Constitution would be violated. In particular, he notes that notions of fair play and substantial justice would be offended, because the defendant’s contact did not relate to the cause of action and he did not personally avail himself of the protection of New Hampshire’s laws.

The Court affirmed the trial court’s finding of personal jurisdiction, noting that the defendant contact related to the cause of the action because he worked closely with New Hampshire engineering consultants to design a fieldhouse in New Hampshire that conformed to the site. Further, the Court found that the defendant availed himself of the protection of New Hampshire law. The Court found that the defendant purposefully availed himself for the purposes of a personal jurisdiction analysis because the action was foreseeable and the defendant’s contacts with the forum proximately resulted from the defendant himself. As such, the Court found that the trial court appropriately exercised personal jurisdiction over the defendant and remanded the case.

John-Mark Turner, on the brief and orally, and Peter S. Cowan on the brief, of Sheehan, Phinney, Bass + Green., of Manchester, for the plaintiff; Andrew D. Dunn on the brief, and Jonathan M. Eck, orally, of Devine, Millimet & Branch, of Manchester, for the defendant.

Criminal Law

State of New Hampshire v. William Ploof, No. 2012-174
June 28, 2013
  • Whether the court erred in determining that sufficient evidence existed to identify the defendant as the perpetrator at his trial for sexual assault where the defendant waived his right to be present at the trial and witnesses merely identified the defendant by name
  • Whether the court erred by failing to declare a mistrial where a witness stated that the defendant is a multiple offender
Defendant William Ploof appeals a conviction for aggravated felonious sexual assault and conspiracy to commit aggravated felonious sexual assault after a jury trial in Superior Court.

As an initial issue, Ploof argues that witnesses did not sufficiently identify the defendant as the perpetrator and so the state did not present sufficient evidence to allow for a conviction. At trial, the defendant waived his right to appear in court. The state argues that the identity evidence was sufficient because three witnesses personally knew the defendant and identified him by name. The Court ruled in favor of the state on this issue. The Court noted that where, as here, the defense did not offer contrary evidence, a comparatively small amount of proof in addition to the identity by name constitutes sufficient evidence of identity to submit to a jury. In particular, the Court found that repeated references to “defendant, Mr. Ploof,” “the defendant in this particular case, Mr. Ploof,” without objection, constituted sufficient proof in addition to identity by name to submit to a jury. Second, Ploof challenged the trial court ruling on the grounds that the trial court judge erred by failing to grant a mistrial after a witness (the victim) stated, “This guy is a multiple offender.” During his testimony, the witness was discussing the reasons why he failed to report the abuse. The victim stated that he feared retribution from his father for sneaking out of his house on the night the abuse took place. He stated that his father was an abusive alcoholic and that “This guy is a multiple offender.” The defense immediately objected to the statement. The trial court ruled that, given the context of the testimony as a whole and the way the witness worded that particular response, an instruction would satisfy the defendant’s objections.

On appeal, the Court ruled that the comment was not so prejudicial so as to cause irreparable injustice to the defendant, because the statement did not unambiguously refer to the defendant. Irreparable injustice may occur when a witness unambiguously conveys to the jury that the defendant has engaged in prior criminal conduct. Here, given the context, it was an unambiguous reference to the defendant because the witness may indeed have been talking about his father. Further, the Court ruled that any prejudice was mitigated by the lower court’s curative instruction to the jury to disregard the comment.

Michael A. Delaney, attorney general (Brian R. Graf, senior assistant attorney general, on the brief and Stacey P. Coughlin, attorney, orally), for the state; James B. Reis, assistant appellate defender, of Concord, for the defendant.

Justin Czyzewski v. New Hampshire Department of Safety, Bureau of Hearings, No. 2012-527
June 5, 2013
  • Whether the trial court erred in denying the defendants request for a declaration that, despite being convicted of attempted sexual assault, he is not required to register as a sex offender
Defendant engaged in conduct on the internet with an undercover police detective, whom he believed to be an underage girl. Petitioner moved to Pennsylvania, but was required to register as a sex offender because he would be required to register in New Hampshire. Defendant argues that he should not be required to register because the statute requires a victim to be under the age of 18 at the time of the offense, and his attempt was directed to a police officer over the age of 18.

In looking at the relevant statute, the Court ruled that no actual victim is required because attempt crimes, by their nature, are not completed crimes and so may not involve an actual victim. This statute expressly included attempt crimes in its purview, and so the Court concludes that the statute cannot only refer to crimes in which there is an actual victim, but also must capture circumstances in which an offender subjectively believed that a victim existed.

Michael A. Delaney, attorney general (David M. Hilts), assistant attorney general, on the memorandum of law), for the respondent; NH Department of Safety; Philip Desfosses, of the Desfosses Law Firm, of Concord, for the petitioner.

Property Tax

Maplevale Builders, LLC & a. v. Town of Danville, No. 2012-485
June 5, 2013
Vacated and remanded
  • Whether the trial court erred in abating a property tax assessment of the respondents due to the petitioner’s failure to timely assess a land use change tax within the statutorily-prescribed eighteen-month period
Petitioner Town of Danville appeals an abatement order of the trial court, arguing that the trial court erred in determining that the town’s tax assessment was untimely.

Respondent Maplevale Builders LLC owned numerous parcels of land taxed at “current use,” a lower rate that applies to open spaces. Property owners sought and obtained approvals to develop the land, and they created a road for access to the parcels. In June 2010 and February 2011, the town determined that portions of the property were subject to the land use change tax (LUCT), which applies upon a property’s changed use. In particular, LUCT applies when actual construction begins.

The trial court found that the land’s use had changed by April 2009. In making that determination, the court noted that the respondents had obtained approvals for the development of the subdivision and had built a road for access to the planned subdivision. As a result, the court found that the use of the land had changed for all of the lots by April 2009, because the pertinent statute states that the LUCT applies when construction begins. As such, the trial court ruled that the imposition of LUCT in June 2010 and February 2011 were untimely. By statute LUCT must be imposed within 12 months of a change in use to be timely assessed.

The NH Supreme Court ruled in favor of the petitioners. The Court found that the trial court erred in ruling that the pertinent statute applies to the respondent’s property as a whole. Rather, the Court found that the town was entitled to apply the statute on a lot-by-lot basis. The Court vacated and remanded to the trial court for a factual determination of when each lots’ use changed and whether, in light of those findings, the June 2010 and February 2011 bills were timely.

Thea S. Valvanis, on the brief and Sumner F. Kalman, orally, of Sumner F. Kalman, Attorney at Law, of Plaistow, for the petitioners; Robert M. Derosier, orally and on the brief, and John J. Ratigan, on the brief, of Donahue, Tucker & Ciandella, of Exeter, for the respondent.

Joshua L. Minty

Joshua L. Minty is a 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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