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Bar News - August 23, 2013


NH Supreme Court At-a-Glance: July 2013

By:

Contract Law

Foundation for Seacoast Health v. Hospital Corporation of America & HCA Health Services of New Hampshire
No. 2012-371
July 16, 2013
Affirmed in part, reversed in part
  • Multiple questions relating to the meaning and effect of certain provisions of an Asset Purchase Agreement
This dispute arose out of a 1983 Asset Purchase Agreement, under which the trustees of the Portsmouth Regional Hospital agreed to sell the hospital to the defendants. Defendant Hospital Corporation of America (HCA) was a publicly traded company that owned all of the common stock of HCA Health Services of New Hampshire. The proceeds of the purchase were used to create a nonprofit organization, the Foundation for Seacoast Health.

Defendant HCA Health Services of New Hampshire owned and operated the hospital following the 1983 Agreement. In 1999, HCA transferred all of its interest in HCA Health Services of New Hampshire to HCA’s corporate parent, Healthtrust Inc., ostensibly for tax purposes.

The foundation alleged that the 1999 transfer constituted a material violation of the Asset Purchase Agreement, because the Asset Purchase Agreement afforded the Foundation a right to repurchase the hospital’s assets following (1) a “bona fide arm’s length offer” with respect to a substantial portion of hospital assets and (2) notice to the foundation.

The New Hampshire Supreme Court upheld the trial court’s ruling that the intra-company transfer did not trigger the foundation’s right to repurchase pursuant to the agreement. However, the Court noted that it was undisputed that the transfer constituted a breach of the agreement, because the transfer was not (1) made to a bona fide third party and (2) preceded by notice to the foundation.

The Court then considered the remedies available to the plaintiff for the defendants’ breach of the purchase agreement. The Court denied the foundation recovery of any monetary damages and upheld the trial court’s equitable order to simply “undo” the 1999 transaction. The Court reversed the trial court’s award of attorney’s fees to the plaintiff, based on a finding that the defendants’ breach was not “material” because the plaintiff had suffered no damages or prejudice as a result of the breach.

Peter L. Resnik, McDermott Will & Emory, Bostonfor the plaintiff. Everett C. Johnson, Latham & Watkins, Washington, D.C. for the defendants.


Criminal Law

State v. Wayne Dorrance
No. 2012-094
July 16, 2013
Affirmed
  • Whether the State offered sufficient evidence of serious bodily injury to convict defendant with second degree assault
During an altercation with a law enforcement officer, the defendant punched the officer in the eye. The officer reported having impaired vision for a period of up to 19 days following the altercation and requiring intermittent medical attention for some period of time thereafter. The defendant challenged his subsequent conviction for second-degree assault on the officer, arguing that impairment of the officer’s vision was not “protracted” for the purposes of RSA 625:11, VI, and therefore did not constitute a “serious bodily injury.”

The Court noted that injuries of the type and duration suffered by the officer in this case routinely satisfied the “serious bodily injury” requirement in other jurisdictions. While there may be some cases in which the duration of a bodily impairment would not be “protracted” as a matter of law, the Court found that the jury in this case could have reasonably found that the police officer suffered from protracted vision impairment, and thus “serious bodily injury.”

David M. Rothstein, Concord, for the defendant. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general) for the state.


State v. Michael Carpenter Noucas
No. 2012-909
July 16, 2013
Affirmed
  • Multiple questions raised regarding the defendant’s conviction for being an accomplice to armed robbery
The defendant appealed his conviction for being an accomplice to armed robbery, arguing (1) there was insufficient evidence to support a conviction, (2) the court failed to instruct the jury of the defense of another under RSA 627:4, (3) the court erred when it sustained a hearsay objection made by the state, and (4) the court erred when it admitted evidence that the defendant had invoked his right to counsel following his arrest. The NH Supreme Court rejected all of the defendant’s arguments.

First, the Court found that the totality of the evidence supported a finding of guilt beyond a reasonable doubt. The state relied on more than circumstantial evidence and was therefore not required to foreclose all rational conclusions other than guilt.

Second, the Court held that the trial court correctly determined that the defendant was not legally entitled to a jury instruction regarding self-defense of another pursuant to RSA 627:4. The Court first noted that, because the defendant did not admit any actions alleged by the state, he could not seek to “excuse, exonerate, or justify” those actions. Further, the instruction would have been inappropriate because “unlike in a typical self-defense or defense of other situations, the defendant could have used force defensively… and also have been guilty of being an accomplice to armed robbery” (emphasis in original).

Third, the Court upheld the trial court’s ruling on a hearsay objection made by the state. At trial, a witness first testified that she had no memory of a conversation with a third party. The state objected to a subsequent question by defense counsel regarding the contents of an alleged conversation with the third party. Defense counsel stated that he didn’t “know what this witness is going to say” but he had “good faith belief” that it would be a statement of intent, and thus admissible pursuant to New Hampshire Rule of Evidence 803(3).

The Court found that even if Rule803(3) applied, the defense counsel’s offer of proof was not sufficient to establish an objective basis to conclude the question would not elicit inadmissible hearsay.

Finally, the Court found that the trial court committed no plain error by permitting a detective to testify regarding the defendant’s invocation of his right to counsel. The detective mentioned the invocation in passing and in a response to a general question regarding what transpired in the police car following the defendant’s arrest. The Court noted that the trial court did not rule on the admissibility of the detective’s testimony, as defense counsel failed to object to the statement and could have had strategic reasons for doing so.

Stephanie Hausman, Concord for the defendant. Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general), for the state.


Juvenile Law – Statutory Interpretation

In re Cody C.
No. 2012-402
July 16, 2013
Affirmed
  • Whether the trial court erred by deciding to retain jurisdiction over a juvenile until his 18th birthday
The juvenile, Cody C., had been adjudicated delinquent several times. Shortly before his 17th birthday, the state moved, pursuant to RSA 169-B:4, V, to extend the court’s jurisdiction until the juvenile’s 18th birthday. On appeal, the juvenile argued that the trial court erred in granting the state’s motion, because RSA 169-B:4, V is applicable only in cases “otherwise covered by RSA 169-B:4, III.”

RSA 169-B:4, III provides, in relevant part, that the court may retain jurisdiction over minors following “any appeal if the petition was filed after the minor had attained the age of 16 years.” RSA 169-B:4, V provides that “[n]otwithstanding paragraph III,” the court may retain jurisdiction over a minor in certain instances, including when the department files a request to retain jurisdiction prior to the minor’s seventeenth birthday.

The juvenile argued that the Legislature’s use of “notwithstanding” in paragraph V indicated that the Legislature intended that paragraph V would only apply in circumstances where paragraph III otherwise applied.

The Supreme Court summarily rejected the juvenile’s argument, explaining that “‘nonetheless’ means, in relevant part ‘in spite of.’” The court found that the legislature intended paragraph V to apply “regardless of whether paragraph III is also applicable.” The Court further noted that rule of lenity did not apply, because, even assuming that RSA 169-B:4,V is a criminal statute, its language is not ambiguous. The trial court thus properly granted the state’s motion to extend the court’s jurisdiction.

Christopher M. Johnson, Concord, for the juvenile. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general), for the state.


Real Property: Statute of Limitations

Robin Plaisted v. Jeffrey A. Labrie
No. 2012-596
July 16, 2013
Affirmed
  • Whether the trial court erred when it determined that a petition seeking proceeds from the sale of real property was time-barred pursuant to the three-year statute of limitations in RSA 508:4
The plaintiff, Robin Plaisted, alleged that she entered into an agreement with the defendant, Jeffrey A. Labrie, whereby she obtained a 50 percent ownership interest in a certain piece of real property. The parties purportedly purchased the property together in 2002. Both parties initialed the purchase and sale agreement, but only the defendant signed the agreement, on behalf of a corporation of which he was the sole shareholder, officer, and director.

A deed was recorded with the Grafton County Registry of Deeds, listing the defendant’s corporation as the sole grantee. The defendant sold the property in 2004 for a profit of $98,855.97 and wired the proceeds to a bank account solely for the benefit of his corporation.

The plaintiff initiated suit in October 2011, seeking half of the proceeds of the 2004 sale. The plaintiff argued that the action was for recovery of real estate, and thus the 20-year statute of limitations in RSA 508:2 should apply.

The Court affirmed the trial court’s ruling that the plaintiff’s action was personal in nature, and therefore barred by the three-year statute of limitations in RSA 508:4. Although the plaintiff sought to establish that her claim involved a recovery of real estate, she would first have to establish that she had an ownership interest in the property. To do so, the plaintiff would necessarily have to demonstrate “the defendant’s breach of contract or fraud.” The plaintiff was required to bring her action within three years of the time that the breach of contract or fraud was discovered.

Howard B. Myers, Myers Associates, Lebanon for the petitioner. James L. Mulligan, Simpson & Mulligan, Lebanon, for the respondent.


Zoning

Charles A. Roberts v. Town of Windham
No. 2012-428
July 16, 2013
Affirmed
  • Whether the trial court erred in denying petitioners request, pursuant to RSA 674:39-aa to reverse the administrative merger of certain lots by the Town of Windham
Petitioner Charles A. Roberts owned a parcel of land about one acre in size in Windham. Although the property originated from seven separate lots, the town administratively merged the lots into a single lot in the 1960s. Following the New Hampshire Legislature’s passage of RSA 674:39-aa in 2011, which provides that lots “involuntarily merged prior to September 18, 2010” may be “restored to their pre-merger status” upon the owner’s request, Roberts petitioned the Windham Board of Selectmen to restore the parcel to its pre-merger status. The Selectmen denied the petitioner’s request, based in part on a finding of “voluntary merger,” which precludes any remedy under RSA 674:39-aa. The selectmen based their finding on: (1) the parcel’s conveyance in a single deed and (2) the physical arrangement of structures on the parcel. On appeal to the zoning board, the zoning board affirmed and additionally found that the owner voluntarily merged the lots by accepting the town’s taxation of the property as a single parcel. The superior court affirmed. The Supreme Court first rejected the petitioner’s argument that, because municipalities bear the burden of demonstrating voluntary merger under the statute, the Legislature intended to alter the deferential standard of review given to zoning board’s decision on appeal. The Court went on to find that the evidence, particularly the physical arrangement of the structures on the parcel, reasonably supported the superior court’s conclusion that the lots were voluntarily merged.

Gregory E. Michael, Bernstein, Shur, Sawyer & Nelson, Manchester, for the petitioner. Bernard H. Campbell, Beaumont & Campbell, Salem, for the respondent.


Iris J. Lowery

Iris Lowery is an associate with Wadleigh, Starr & Peters, PLLC in Manchester. She is a graduate of The George Washington University Law School and was admitted to the New Hampshire bar in November 2012.

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