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Bar News - September 17, 2014


Supreme Court At-a-Glance

By:

August 2014
Criminal Law
The State of New Hampshire v. Matthew L. Tsopas
No. 2014-309
Aug. 6, 2014
Affirmed
  • Whether the trial court erred in denying the defendant’s third motion to modify bail

The defendant faces multiple felony and misdemeanor charges arising from an alleged drunk driving incident. Bail was set, and then subsequently reduced. After filing three motions to modify bail starting in August 2014, all of which the court denied, the defendant appealed.

The defendant argued that RSA 597:6-e required the superior court to “hold a hearing and make written findings of fact” on the defendant’s third motion for bail review, and the court reviewed de novo. The court assumes the statute authorizes a defendant to file successive motions for bail modification. The express terms of RSA 597:6-e, only require written findings when the district division has found that the defendant posed a danger, which is not the case in the present instance. Therefore, a hearing and written findings do not apply to the defendant’s motion.

The Superior Court has the discretion to determine if a hearing is necessary, absent a statutory mandate. The party seeking a hearing must articulate why a hearing would assist the court. The NH Supreme Court reviewed the superior court’s determination not to hold a hearing under the “unsustainable exercise of discretion standard.” State v. McGurk, 163 NH 584, 587 (2012). Here, the defendant argued that RSA 597:6-e,II entitled him to a hearing.

The court found he did not demonstrated that the superior court unsustainably exercised its discretion in denying him a hearing.

The Supreme Court also reviewed the superior court’s decision on the motion to deny a bail modification under the “unsustainable exercise of discretion standard.” Having considered the defendant’s arguments and supporting documentation, the court cannot say that the superior court unsustainably exercised its discretion in denying a bail modification. Therefore, the court’s decision is affirmed.

Elizabeth C. Woodcock, assistant attorney general, on the memorandum of law for the State. Harry N. Starbranch Jr. of Portsmouth, on the memorandum of law for the defendant.


The State of New Hampshire v. Ashley Hayward
No. 2012-750
Aug. 15, 2014
Reversed and Remanded
  • Whether the trial court erred in precluding the defendant from introducing evidence of an accomplice’s past threatening and violent behavior

The defendant confessed to police after several interviews to driving her accomplice (Tyler Dodge) and a third party from the scene of a robbery. When interviewed, she explained to the police that she complied because Dodge had threated to “beat the [expletive deleted] out of her.” According to the defendant, Dodge had previously threatened her physically.

The state filed a motion in limine with the trial court requesting the preclusion of the defense of duress during trial. The trial court ruled the defendant could introduce evidence regarding threats made by Dodge on the night of the robbery, but not of Dodge’s past threats and acts of violence, and they deferred to rule on whether the jury could consider evidence of duress until the close of evidence. At the close of trial, the trial court ruled there was sufficient evidence to warrant an instruction on the defense of duress.

The jury found the defendant guilty as an accomplice to robbery, and the defendant appealed, arguing that the trial court erred in excluding, as irrelevant, evidence of Dodge’s past threatening and violent conduct toward her because it is relevant to the defense of duress. The court reviewed the ruling to admit or exclude evidence for an “unsustainable exercise of discretion.” State v. White (2007).

The court looked at the relevancy of the evidence and determined that the trial court’s decision was erroneous and that its ruling was “clearly untenable or unreasonable to the prejudice of the defendant’s case.” State v. Furgal (2012). By excluding evidence that Dodge had previously threatened and been violent toward the defendant, they denied the jury of evidence necessary to the defense of duress.

The state urged the court on appeal to affirm the trial court’s decision because alternative grounds support it. State v. Dion (2013). The state asserts the defendant’s eliciting of evidence by cross-examining the police officers who interviewed her constitutes inadmissible double hearsay. Here, the court found what Dodge said and did was not hearsay, because it was not offered for its truth of what he said and did, but to provide a reasonable basis for the defendant’s fear. However, the statements made by the defense counsel at opening argument describing the threats were hearsay, because they were offered for their truth.

The defendant argued her statements were admissible under the doctrine of verbal completeness and that the defendant has the right to “introduce the remainder of a… statement… that his or her opponent has introduced…” State v. Lopez (2007).

The court found that “after the trial court ruled before trial that all evidence of Dodge’s prior threats and violence was inadmissible as irrelevant, there was no cause for the defendant to argue the evidence was admissible under the verbal completeness doctrine.” Neither the parties, nor the trial court, had discussed whether the prior threats or descriptions of the threats by the defendant constituted hearsay or whether they were admissible.

The court declined to affirm the conviction on the ground that the trial court “reached the right result for the wrong reason” because they were unable to conclude that the trial court could have ruled only one way. The court could not say as a matter of law that, had the trial court addressed the issue, it would have found the evidence inadmissible under the verbal completeness doctrine.

The court referenced statements made by the prosecutor after the trial court had ruled on the motion in limine, where the prosecutor believed “under the doctrine of completeness, both the inculpatory and any exculpatory statements would come in.”

Justice Robert Lynn dissented because he did not agree the error required the reversal of the defendant’s conviction. He argues that the majority substituted a standard that grants relief upon showing that the trial court’s erroneous ruling might have prejudiced the defendant’s case. Additionally, he states that the defendant did not make a complete offer of proof to preserve the evidence and that the issue was not preserved for the court’s review.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the state. Thomas Bernard, assistant appellate defender, of Concord, on the brief and orally for the defendant.


The State of New Hampshire v. Thomas Bulcroft
No. 2013-424
Aug. 22, 2014
Affirmed
  • Whether the trial court erred when denying a petition to annul arrest and court records pertaining to a criminal case in which the defendant was found not guilty by reason of insanity

In 1974, the defendant was charged with kidnapping and rape. His plea of not guilty by reason of insanity was accepted by the court and he was committed until 1979. In 2012, the defendant filed a petition to annul his arrest and indictment record because he was found not guilty by reason of insanity. The trial court denied his petition. The trial court reasoned that a verdict of not guilty by reason of insanity and not guilty (RSA 651:5, X(a)) are not the same. The defendant appealed.

The NH Supreme Court analyzed RSA 651:5, X(a) de novo and confined their analysis to whether his plea of not guilty by reason of insanity “resulted in a finding of not guilty” for the purposes of RSA 651:5, II. The court concluded that it did not. The court has previously found that a plea of not guilty by reason of insanity “is one of confession and avoidance and admits that the defendant committed the acts alleged.” Novosel v. Helgemoe (1978).

The court agrees with the trial court that, unlike with an acquittal, an individual not guilty by reason of insanity has restraints placed on their liberty. RSA 651:8-b; Eastlack.

The court then analyzes the outcome if “not guilty by reason of insanity” were construed as” not guilty” under RSA 651:5, (II) and concluded that it would “render ineffectual the procedural and substantive requirements of RSA 651:8-b. The court reasoned that the defendant’s argument would nullify a process that was established to protect society from individuals who pose a substantial risk of injury to others. State v. Patterson (2000).

The court was not persuaded by the petitioner’s arguments to adopt the analysis of the Supreme Court of Illinois because, while a defendant found not guilty by reason of insanity does not face criminal punishment, his or her liberty is constrained, in direct contrast to a defendant who has been acquitted.

Furthermore, the Court also rejected the petitioner’s argument that “because a plea of not guilty by reason of insanity is an affirmative defense, an acquittal based on insanity is ‘similar to an acquittal based on any other affirmative defense.’”

The court also looked at how the Legislature distinguishes between the disposition of cases by acquittal and by a finding of not guilty by reason of insanity. The court concludes the Legislature did include in RSA 651:5, II “a specific reference to persons found not guilty by reason of insanity.” They decline to expand the scope of the statute and add language that the legislature did not intend. Guay. The court affirms the decision of the trial court.

Nicolas Cort, assistant attorney general, on the brief for the state. Thomas A. Bulcroft, self-represented party by the brief.


Petition of State of New Hampshire
No. 2013-566
August 29, 2014
Affirmed

  • Whether the Superior Court erred in ruling that Miller applied retroactively to preclude the imposition of mandatory life without the possibility of parole on juvenile offenders.

The respondents were convicted when they were seventeen of first degree murder offenses and sentenced to life without possibility of parole. After their sentences became final, the US Supreme Court held that the Eighth Amendment forbid mandatory life sentences without the possibility of parole for juveniles because sentencers must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 132 S. Ct . at 2469. As a result, the respondents sought post-conviction relief in Superior Court and the trial court ruled it applied retroactively. The State filed a writ of certiorari challenging the trial court’s decision.

The Court limits the issue at review to whether Miller applies retroactively in cases on collateral review and reviews the matter de novo. First, the Court first looks at Miller. There, the U.S. Supreme Court found that there were “two strands of precedent reflecting [its] concern with proportional punishment.” Id. at 2463. First, the Court stated that juveniles are “constitutionally different from adults for purposes of sentencing” “[and] the [imposition] of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children” Id. at 2464. Second, that the “mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death.” Id. at 2463-64. For juveniles, the Court must as part of the process be able to consider mitigating circumstances, such as the offender’s youth, before imposing the harshest sentence.

Next, the Court looks at the principal of retroactivity to determine if it governs in judicial decisions on collateral review. Retroactivity decisions must be adhered to by the States to ensure uniform application and to prevent States from denying or curtailing federal law. This is a threshold question and the framework for review is laid out in Teague v. Lane, 498 U.S. 288 (1989). In a criminal law case, unless it falls within one of two exceptions, “new constitution rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id. at 310.

There is no consensus across the jurisdictions on whether Miller should apply retroactively to cases on collateral review. The Court agrees with those jurisdictions who found that Miller rule to be “a new substantive rule which should be applied retroactively to cases on collateral review. Jones v. State, 122 So.3d 698, 703 (Miss. 2013). In the case of juveniles, a mandatory life sentence without the possibility of parole can no longer be imposed. Id. Now, the sentencer must consider new facts in order to impose life in prison without parole. The rule is substantive because otherwise there is a risk that the defendant would “face a punishment that the law cannot impose upon him.” Shiro, 542 U.S. at 352. Miller provides discretion in sentencing where there wasn’t any. The Court found the rule could be applied collaterally because “even-handed justice requires that it be applied retroactively to all who are similarly situated.” Teague, 489 U.S. at 300. The Court found it should apply on collateral review because the court in Miller granted relief to Jackson. Therefore, because new substantive rule of law apply on collateral review the respondents are entitled to retroactive benefit of the Miller rule in post-conviction proceedings.

Christopher M. Johnson, chief appellate defender of Concord, on the joint brief and orally for respondents Robert Dingman and Eduardo Lopez, Jr. Richard Guerriero, Lobstein Guerriero of Keene, on the joint brief for respondent Robert Tulloch. Christopher M. Johnson, chief appellate defender of Concord orally for the respondent Robert Tulloch and Micheal Soto. Andrew Shulman and Clara Lyons , Getman, Schulthess & Steere of Manchester, on the joint brief for respondent Michael Soto. Elizabeth C. Woodcock, assistant attorney general, Joseph A. Foster, attorney general ,on the brief and orally for the State.


Family Law
In the Matter of Janice E. Maves and David L. Moore
No. 2013-171
Aug. 13, 2014
Vacate and Remand
  • Whether the trial court erred in calculating the respondent’s child support obligation

The petitioner and respondent where divorced in 2004 and share in parenting a son. The petitioner receives child support. In 2011, the petitioner moved to modify child support. The petitioner and respondent disagreed about what constituted “gross income” for the purpose of calculating child support.

The trial court determined that condominium sales, generated by the S-Corporation awarded to the respondent as part of the divorce property settlement, constituted “irregular income” that should be considered as part of the respondent’s gross income. Using the adjusted gross income figure from his 2011 income tax return would result in an award to the petitioner of $2,411 per week in child support. Both parties appealed the support order, and the trial court has held further calculations of support in abeyance, pending the outcome of this court’s appeal.

The court determined that the capital gains from the sales of the condominium, but not the funds obtained through the line of credit, should be included in the child support calculation because they are gross income. The court emphasized that per the statute, “gross income means all income from any sources, whether earned or unearned,” RSA 248-C2, IV, and “it includes but is not limited to, the items that are not specifically listed in the statute. In the Matter of Albert & McRae (2007).

In calculating gross income, the court decided the trial court had erred in using the adjusted gross income figure from the respondent’s tax return in calculating the support figure. Because the respondent’s source of income is from an S-corporation, the court agreed that the proper standard for determining “gross income” is to deduct legitimate business expenses from business profits, excluding any expenditure they feel “will personally benefit the parent.” Merrill v. Merrill [Ind. Ct. App. 1992). Therefore, the court vacated the child support award and remanded it for a redetermination of the respondent’s support obligation.

Marilyn B. McNamara, James A. O’Shaughnessey and Sandra Kenney on the brief and McNamara orally, for the petitioner. Judith L. Homan of Martin, Lord & Osman on the brief and orally for the respondent.


Administrative Law
Petition of David Eskeland
No. 2013-406
Aug. 8, 2014
Affirmed
  • Whether the respondent, the New Hampshire Retirement System (NHRS), erred in denying a petition for accidental disability retirement because the petitioner had already retired

The petitioner was a mandatory NHRS (New Hampshire Retirement System) member due to his work at the NH Department of Fish and Game.

In 2009 and 2010, before retiring, the petitioner met twice with counselors. At both meetings, service benefits, not disability benefits, where discussed.

In 2010, the petitioner retired on service benefits. After a discussion with a friend, three months after retiring, the petitioner applied to NHRS for disability retirement. The application was denied. On a request for review, the examiner notified the petitioner that there was a jurisdictional issue with the petition as the petitioner was a beneficiary when he applied. Therefore, the examiner “lacked jurisdiction” to award him a disability retirement.

The board accepted this recommendation, and the petitioner makes several arguments on appeal.

First, the petitioner argues RSA 100-A:6 contains an exception allowing members to apply for disability within one year of ceasing their membership. Examining the plain language of the statute, the NH Supreme Court holds that the petitioner’s argument is not supported. The Court determines there is an exception in the statute permitting waiving only of the “in service” requirement, not the membership requirement.

The petitioner further argues that the phrase “member or retired member” is used in other parts of the statute and creates an ambiguity as to the definition of member. In examining the language of the statute, the court determines there is no ambiguity. RSA 100-A1, X and RSA 100-A:3, I, V define the term “member,” and a retired member is not a member within the meaning of the statute. Because the language of the statute is clear, the court declines to examine the legislative history and concludes that NHRS did not err in precluding the petitioner from applying for disability retirement because the petitioner was not a member.

Next, the petitioner argues that the NHRS breached its fiduciary duty to him by providing him with inaccurate advice. The court disagreed that NHRS was obligated to tell him he needed to apply for disability retirement before he retired. The court finds that while the NHRS members are owed a fiduciary duty, they are not required to intervene and counsel each member.

Finally, the petitioner argues the NHRS’s inaccurate advice constituted either a unilateral or mutual mistake requiring the board to rescind his service retirement and allowing him to reapply for disability retirement. The court disagreed.

There was no mutual mistake because the NHRS employee’s actions in accepting his application occurred after he received his service retirement and that conduct “could not have impacted his original retirement decision.” The court also found there was no unilateral mistake. Therefore, the board did not err in rejecting the plaintiff’s arguments.

John G. Vancore, Vancore Law Office, on the brief and orally for the petitioner. Andrew R. Schulman, Getman, Schulthess & Steere, of Manchester, on the brief and orally for the respondent.


James Yager v. K. William Clauson et a.
No. 2013-381
Aug. 13, 2014
Vacated and Remanded
  • Whether the trial court erred in dismissing a claim for legal malpractice

In 2005, the defendants represented the plaintiff in an action against Mighty Oaks Realty in a dispute over timber cutting. The defendant in that case was granted summary judgment because the plaintiff did not offer specific facts about who performed the cutting.

In 2008, the defendants again represented the plaintiff in an action alleging that DH Hardwick & Sons had performed the cutting. The trial court granted summary judgment, concluding the statute of limitations had passed, and the plaintiff had failed to demonstrate the discovery rule applied to toll the statute of limitations. The trial court denied the plaintiff’s motion for reconsideration. The plaintiff filed a malpractice action against the defendants, which was dismissed.

The NH Supreme Court reviewed the trial court’s ruling on the motion to dismiss and the determination that an expert was required as matter of law. The court found that no rule requires expert testimony to prove legal malpractice. While generally required, there are situations where an attorney’s “negligence is so patent and conclusive that a reasonable person can only reach one conclusion.” Wong v. Ekberg (2002).

Legal malpractice claims, premised on a failure to file a claim within the applicable statute of limitations period, generally may not require the disclosure of an expert witness, but there may be cases that do. The determination of the necessity of expert testimony turns on the facts of the case and whether they are within the realm of common knowledge.

The trial court granted the motion to dismiss for failure to disclose an expert. The NH Supreme Court states that the trial court erred as a matter of law in granting the motion to dismiss based on an unqualified rule. The court based its decision to dismiss on the categorical rule that “because the extent to which an attorney, in the exercise of due care, should investigate a claim to file a timely action, is not a matter of common knowledge, a jury would not be able to evaluate the adequacy of the attorney’s actions without the aid of expert testimony.” (quotation omitted).

In granting the defendant’s motion to dismiss they did not evaluate the specific facts of the case to determine whether the case was of a nature that required expert testimony. Therefore, the court vacates the trial court’s dismissal and remands for further proceedings using the correct legal standard.

Jeffrey C. Spear, Orr & Reno of Concord, on the brief and orally for the plaintiff. K. William Clauson, self-represented party, by the brief and orally.


Probate Law
In re Estate of Jack Michael Bergquist
No. 2012-754
Aug. 8, 2014
Reversed and Remanded
  • Whether the trial court erred in excluding the petitioner’s claim for post judgment interest

In 2002, a default judgment was entered for the petitioner, including costs and interest. When Bergquist failed to make payments, in 2003 the petitioner filed and was granted a motion for periodic payments with the district court.

Neither the 2002 judgment nor the order made explicit reference to the entitlement to continuing post-judgment interest. Bergquist made payments until his death in May 2011. The petitioner filed and was granted creditor’s claim against the estate for the “balance of Court Judgment… [and] interest.” The estate agreed on the remaining balance but argued that post-judgment interest had not been awarded and should be excluded from the claim. The probate division agreed and entered judgment for the claim balance. The petitioner appealed.

The probate court based its decision on the 2002 judgment, which did not explicitly award post judgment interest. But the NH Supreme Court has held that plaintiffs can receive post-judgment interest even if the original judgment is silent.

Where the district court had found in the initial judgment that the petitioner was entitled to post-judgment interest, the probate division erred in excluding the claim for that interest. Regardless of whether a request was made for interest at trial or where an award was made as part of the judgment, where a plaintiff is awarded a money judgment, they are entitled to receive post-judgment interest as a matter of law until the balance is paid in full.

The estate also argued that the doctrine of res judicata bars the current action for post-judgment interest. This question is a matter of law reviewed de novo by the court. The parties agreed that the first and third elements of res judicata were satisfied, but disagreed that the petitioner had a “cause of action” that is preserved to bring suit. The court found that the petitioner was not reasserting the same cause of action as the original case. Rather, they were asserting their existing rights under the judgment against the estate, and the question was what amount the petitioner already owed under that existing judgment.

Alternatively, the estate argued that the petitioners claim would be contrary to the purposes of RSA 524:6-a. The estate argued the purpose under RSA 524:6-a is to fix the amount due in order to 1) set a reference amount; and 2) set a specific schedule to provide finality.

The Court stated that no authority was cited and the court had previously stated the Legislature’s “intent in passing RSA 524:6-a was to give judgment creditors a new method of obtaining payment (periodic rather than lump sum payments), not a new source of payment.” Sheedy v. Merrimack Cty. Super. Ct. (1986). Therefore, an order for payments under RSA 524:6-a doesn’t affect the parties’ rights; it affects the distribution of payments, from lump sum to periodic payments.

Furthermore, the court ruled that an award of interest to a judgment is to recognize the time value of money. Because it would be unfair to punish a creditor by revoking its right to post-judgment interest in cases where periodic payments are made, the court holds that payment of post-judgment interest is required by an order entered under RSA 524:6-a. Therefore, the probate division erred in excluding the petitioner’s claim for statutory post-judgment interest.

Erin S. Meenan and Jonathan S. Frizzell, Waystack Frizzell, Trial Lawyers of Concord, on the brief and Meenan orally for the petitioner. Rory J. Parnell, Parnell & McKay PLLC of Londonderry, on the brief and orally for the respondent.


In the Estate of Ruth C. McCarty
No. 2013-398
Aug. 8, 2014
Affirmed
  • Whether the trial court erred in concluding the DHHS claim for repayment of medical assistance provided by the State’s Medicaid program was not barred by the statute of limitations

The decedent received medical assistance from June 22, 2009, to Oct. 9, 2009. Upon her death, in 2010, a claim for $7,866.64 was made against her estate that was not secured by a lien against the real property in the decedent’s estate.

The claim was not paid, and no action was filed to enforce the claim. In 2012, the appellant asked the court to dismiss the claim against the estate because it was not made within one year of her appointment as executrix. The trial court determined that RSA 167:16, III was ambiguous and consulted the legislative history. The trial court determined where a claim is timely filed against an estate, the NH Department of Health and Human Services (DHHS) is exempt from filing a suit against the administrator within one year of appointment. The appellant appealed.

First, the court looked to determine whether RSA 167:16, III exempts DHHS’s claim of recovery of assistance when they are not secured by a lien during the limitations period contained in RSA 556:5. The appellant argued that the statutory language of RSA 167:16, III applied only to claims secured by liens. The court found that the plain language of RSA 167:16, unambiguously applies to all claims for recovery of assistance that are subject to the jurisdiction of the probate court.

Next, the appellant argued that the context of the overall statutory scheme made it clear that RSA 167:16, III applied only to claims secured by liens. The court determined, based on the language of the statute, that the use of the terms “claim and “lien” are used as distinct terms in Section 16 and that the statute address how claims and liens can be enforced. There is an absence of language limiting RSA 167:16, III to situations where a lien is applied is a strong indication that the Legislature did not intend the paragraph to be so limiting.

Then, the appellant argues that the title of RSA 167:16 indicates that it only applies to claims secured by liens. The court finds that the language of the statute is clear and unambiguous. Therefore, they will not look to the title to aid in its interpretation. Because the court found that the language was unambiguous, it did not need to consult the legislative history.

Finally, the appellant argued that the trial court erred by not exempting the decedent’s estate from recovery by DHHS pursuant to RSA 167:16-a, IV (b)(2). The appellant argued RSA 167:16-a, IV(b)(2) should apply to all DHHS claims.

The court determined RSA 167:16-a, IV(b)(2) didn’t apply, because the decedent was not admitted to a medical institution and no lien was placed on her property because of a stay.

The appellant further argued the interpretation of this statute yielded an absurd result. The appellant argued the goal of the statute is to exempt recovery from an estate by DHHS when care provided by a family delays entry into a medical facility. The court did not find this argument compelling, saying that the statute does not create a permanent bar from recovery of the debt owed to the state; it is intended to protect the caregiver from having a lien used to evict or force them from the home while they continue to live there.

Because the express requirements of RSA 167:16-a, IV(b)(2) were not met, the trial court did not err in determining the statute did not exempt the recovery from the decedent’s estate of assistance by DHHS.

Michael J. Bolduc, Wyskiel, Boc, Tillinghast & Bolduc, of Dover, on the brief and orally for the appellant. Patrick J. Queenan, assistant attorney general, on the brief and orally for the New Hampshire Department of Health and Human Services.


In Re Theresa Houlahan Trust
No. 2012-749
Aug. 22, 2014
Affirmed in part, reversed in part, and remanded.
  • Whether the trial court erred in granting the respondent’s cross motion on the grounds the action was barred by the statute of limitations

In 1993, John Houlahan and his wife, Theresa, established a revocable trust (the Theresa Trust) that contained the marital home. John was named as successor trustee and granted certain powers over the trust. Upon the deaths of Theresa and John, the real property was to be distributed to their son.

Theresa died in 1996. In 1997, John established a trust (the John Trust) and conveyed the real property to that trust.

Under the trust’s terms, it was to be shared equally among four of his children. In January 2011, the petitioner filed a “petition for injunction” seeking return of the property to the Theresa Trust and an injunction prohibiting disposal of the property. The respondent’s answer raised several affirmative defenses, including statute of limitations.

In December 2011, the petitioner filed a motion for summary judgment, and the respondent filed a cross motion for summary judgment, alleging among other things that the petitioner’s action was time-barred under RSA 564-B:10-1005(c)(2) and (3). The trial court denied the petitioners motion for summary judgment and granted the respondent’s cross motion, concluding the action was barred by the statute of limitations.

The NH Supreme Court assumed, without deciding, that the applicable statute of limitations was the three-year period in the UTC. The court took as true the petitioners allegation that John, as the Theresa Trust trustee, breached his fiduciary duty by transferring the real estate to himself as trustee.

Under RSA 564-B:1-103(11)(Supp.2013), a cause of action may constitute the property of a trust. Therefore, one of the remedies that may be available when the trustee breaches his fiduciary duty is to compel the return of property to the trust.

This contemplates that the trust will continue in existence for property improperly removed to be restored. The court determined that the Theresa Trust did not terminate and neither did the petitioner’s interest in it.

Because the Theresa Trust provided distribution upon John’s death, the statute of limitations began to run on John’s death, and the court reversed the trial court’s ruling.

The court was not in favor of the argument that the trial court erred in denying the petitioner’s motion for summary judgment because there were “many disputed issues of material fact that can be decided on the pleadings” was not erroneous. Accordingly, the court affirmed its denial of the petitioner’s motion for summary judgment and remanded the case.

Marcus Hurn, of Concord, by brief and orally for the petitioner. David W. Rayment and Mark S. Derby, Cleveland, Waters and Bass of Concord, on the brief. Rayment orally for the respondent. Terrence Houlahan, self-represented party, by brief.


Contract Law
Trinity EMS, Inc. v. Timothy Coombs
No. 2013-291
Aug. 6, 2014
Reversed and Remanded
  • Whether the Circuit Court erred in dismissing the plaintiff’s collection action

On April 4, 2003, the plaintiff was awarded a default judgment for $1,420. In March 2012, the judgment had not been satisfied. On March 28, 2012, the plaintiff commenced an action, in a plea of debt, to recover the amount it claimed it was owed on the 2003 judgment, plus additional court costs.

The new action was to get a new judgment in order to record at the registry of deeds. On March 18, 2013, the action was dismissed. The plaintiff moved for reconsidered, and the court denied the motion, ruling “There is no Cause of Action for obtaining an attachment which is what the Plaintiff is seeking… Plaintiff has a judgment. It has apparently never recorded and is beyond the limitation period set forth in RSA 511.” The plaintiff appealed.

The plaintiff argued and the NH Supreme Court agrees that the 2012 complaint states “a plea of debt” under the common law. The plaintiff is seeking a new judgment, which it can use to attach the defendant’s real estate.

In making a determination, the court referenced Indiana and Illinois law and looked at the statutory language of RSA 508:5 and RSA 511:55,I. The court determined those two statutes provide that a judgment creditor may bring an action for debt on a judgment within 20 years, and within six years of the issuance of that judgment perfect an attachment of the defendant’s real estate.

By operation of RSA 511:55, I that attachment would expire six years from the date of the second judgment, and a creditor would have 14 years to bring another action in debt to obtain a third judgment. This process could be continued “ad infinitum.” Town of New Chicago, 169 N.E. at 57.

Because the plaintiff was the holder of an unsatisfied judgment within the last 20 years, which was within the jurisdictional amounts, the court reversed the court’s decision and remanded for further proceedings.

Daniel C. Proctor, of Concord, on the brief for the plaintiff. Timothy Coombs, self-represented, filed no brief.


In the Matter of Cheryl Serodio and Arthur Perkins
No. 2013-199
Aug. 22, 2014
Reverse and Remand
  • Whether the trial court erred in ruling that the respondent’s failure to produce the original or a copy of a prenuptial agreement was fatal to the enforcement of its terms

The parties were married in 1988, and the petitioner filed for divorce in 2010.

In October 2011, the respondent moved to enforce a prenuptial agreement. The petitioner attached a copy of the agreement signed only by him to a motion to enforce the agreement and requesting that the trial court schedule an evidentiary hearing.

The petitioner objected and moved to dismiss the respondent’s motion, arguing that she should prevail as a matter of law under the statute of frauds because the respondent had failed to produce a copy of the agreement signed by her. The petitioner also objected, asserting that the trial court “had no statutory power to enforce an oral or unsigned prenuptial agreement.

A hearing was schedule on Nov. 30, 2012. Counsel for the respondent acknowledged that an original copy with both signatures could not be located. The trial court granted the petitioner’s motion to dismiss and denied the respondent’s motion for reconsideration. The petitioner makes multiple arguments. The court first focused on the petitioner’s argument about enforcement of an oral or unsigned prenuptial agreement, stating it focused on the wrong issue. The respondent was requesting the trial court enforce the terms of a written and signed prenuptial agreement that the parties had been unable to produce.

The court then focused on whether the respondent’s pleading could reasonably be construed to permit recovery. Assuming the truth of the respondent’s allegations regarding the existence of a signed written agreement, the court concludes that it could.

The petitioner contended that the trial court was precluded by the statute of frauds from considering the agreement, unless a copy signed by the petitioner exists. The court disagreed, stating that the trial court erred in granting the motion to dismiss.

The court established that it is unnecessary to produce a signed copy of an agreement to prove the agreement existed.

Doreen F. Connor, Primmer Piper Eggleston & Cramer of Manchester, on the brief and orally for the petitioner. Dianne Martin, of Bedford, by the brief, and William E. Brennan, Brennan, Carol, Lenehan & Iacopino of Manchester, orally for the respondent.


Autofair 1477 LP v. American Honda Motor Company Inc.
No. 2012-914
Aug. 22, 2014
Affirmed
  • Whether the trial court erred in denying the plaintiff’s appeal on its motion for summary judgment on the plaintiff’s petition for attorney’s fees

Autofair is an authorized Honda dealer and receives vehicles from AHM for resale. The relationship between the two parties is governed by the Automobile Dealer Sales and Service Agreement.

Under the agreement, Autofair is required to perform warranty work that is later reimbursed by AHM. AHM may chargeback to Autofair any amount paid for a warranty repair, if during an audit, it was determined that Autofair did not follow AHM’s policies and procedures.

In November 2010, an audit was performed at Autofair, and a chargeback of $45,733 was proposed. Autofair’s account was not debited, and an internal appeal was filed with AHM. In February 2011, Autofair filed a protest with the NH Motor Vehicle Industry Board and requested a “finding and ruling that the warranty audit chargebacks and the [proposed] escrow violate RSA 357-C:4, that the audit charge backs be reversed and the escrow released.”

Prior to the final hearing before the board, the disputed amount was reduced to $29,730. After the hearing, the board ruled that AHM was entitled to chargeback of $1,023, but not the remaining disputed amount. It ordered Autofair to pay that amount to AHM with interest.

In 2012, Autofair filed a petition for attorney’s fees and costs with the trial court, and both parties moved for summary judgment. Autofair’s motion was denied, and AHM’s granted because the “Board had not found that AHM committed a violation of the Dealership Act because it had not charged back Autofair, and the court’s conclusion that an award of fees would not be consistent with the public policy behind the Dealership Act.” While the appeal was pending, the Legislature amended RSA 357-C and added to the definition of chargeback. The court determined that because it could affect the outcome of the appeal that before addressing the merits of the appeal, the court must determine whether the Legislature intended the amendment to apply retrospectively.

Autofair argued it was remedial, and AHM countered that it was substantive and only applies prospectively. To make a determination, the court compared AHM’s rights under the Dealership Act before and after the amendment became effective and interpreted the Dealership Act.

After the definition of chargeback under RSA 357-C:1, XXX had changed, the court determined, the proposed chargebacks would violate the statute. Because AHM’s proposed chargebacks violated the statute after, but not before, and previously allowed conduct is no longer allowed, AHM’s substantive rights were adversely affected, and the court declined to apply it retrospectively.

With regard to Autofair’s appeal for attorney fees and costs, the court determined that because the proposed chargebacks did not violate RSA 357-C:5, II(b), the Board cannot implicitly find a statutory violation. Therefore, because Autofair can only be awarded attorney fees if the Board finds that the Dealership Act was violated, the Court affirms the trial court’s ruling that AHM was entitled to judgment as a matter of law.

Gregory A. Holmes, Holmes Law Offices of Concord, on the brief and orally for the plaintiff. James M. Campbell, Campbell Campbell Edwards & Conroy of Boston, Mass., on the brief and orally for the defendant.


Wayne H. Kassotis v. Town of Fitzwilliam
No. 2013-594
August 28, 2014
Affirmed

  • Whether the non-renewal of an employment contract constitutes a dismissal under RSA 105:2-a.

A two year employment contract was entered into by the petitioner and the Town of Fitzwilliam for the petitioner to serve as chief of police, effective from April 1, 2011 to April 1, 2013. It contained a contract provision regarding full force and effect. On November 1, 2012 the Town notified the petitioner that they did not intend to negotiate a contract renewal. On April 1, 2013 the Town provided a second notice to the petitioner that the petitioner’s employment with the Town “will end due to the expiration of the two year term of employment and non-renewal of the contract.” A complaint was filed on May 15, 2013 alleging failure to comply with RSA 105:2-a, the Town’s motion to dismiss was granted by the trial court. The court denied the petitioner’s motion to reconsider and the petitioner appealed.

The Court reviewed the trial court’s grant of a motion to dismiss de novo. They considered “whether the allegations in the [petitioner’s] pleadings are reasonably susceptible of a construction that would permit recovery.” The Court conducted a threshold inquiry testing the facts alleged in the pleadings with the applicable law. England v. Brianas, 166 N.H. _,_ (June 18, 2014). The Court examined the language of RSA 105:2-a de novo.

The statute does not define “dismissal” and the Court construed the term according to “its common and approved usage” to mean “a release or discharge from employment.” Black’s Law Dictionary 537 (9th ed. 2009). Utilizing this definition, the Court agreed with the Town that they had not dismissed the petitioner, but exercised their contractual rights. The Court did not define precise parameters for “dismissal” under the statute instead concluding, the “definition encompassing the Town’s non-renewal of the petitioner’s expiring term contract “is not consistent with the plain and ordinary meaning of the word.” State v. Thiel, 160 N.H. 462, 466 (2010). Non- renewal is not the same as dismissal or termination. Therefore, the Court affirmed the trial court’s decision, because as a matter of law, RSA 105:2-a “does not apply to the Town’s non-renewal of the petitioner’s employment contract.” Atwood v. Owens, 142 N.H. 396, 399 (1997).

James Romeyn Davis, Sheldon, Davis, Wells & Hockensmith PC of Keene, on the brief and orally for the petitioner. Jeffrey C. Spear, Orr & Reno of Concord, on the brief and orally for the respondent.


Constitutional Law
The State of New Hampshire v. Catherine Bailey & a.
No. 2012-781
Aug. 8, 2014
Affirmed
  • Whether the trial court erred in finding that a defendant’s free speech rights were not violated by the enforcement of a City of Manchester Ordinance establishing an 11 p.m. curfew in the park

The defendants participated in the Occupy Movement in Manchester to protest a variety of issues. On Oct. 14, the defendants first located the Occupy Movement at Victory and then, on Oct. 17, moved to Veteran’s Park to camp until their grievances were heard.

On Oct. 19, after 11 p.m., the police cited the defendants for violating the park curfew after they refused to leave. The defendants moved to dismiss the charges arguing “the application of the criminal law to their protected rights to free speech violated the New Hampshire and Federal Constitution.” The trial court conducted a hearing and denied the defendants motion and found them guilty. The defendants appealed.

The court analyzed the question under the State Constitution and relied on federal law to aid the analysis. Under the State Constitution, there are robust protections for free speech, but there are no absolute protections under all circumstances and in all places. The court conducted a time, place and manner analysis to determine if the speech was protected.

First, the Court looked to determine if the speech “was imbued sufficiently with elements of communication to fall within the scope of [constitutional protections]. Texas v. Johnson (1989). The court declined to determine this threshold issue, as the trial court implicitly adopted this position and the State doesn’t dispute that as applied “this is an enforcement action… [encompassing] expressive speech.”

Next, the Court looked to determine whether the government must permit that form of speech on the property it owns and controls. The parties agree that Veteran’s Park is a traditional public forum. The court employed the same standard as the US Constitution to assess the constitutionality of time, place and manner restrictions and declined to broaden the standard.

The defendants conceded the park curfew ordinance is content neutral and advances a significant governmental interest, but argued that, as applied to them, it is not narrowly tailored to serve a significant government interest. They argued that “there was no need to apply the ordinance to [their] constitutionally protected activity in order to protect the government’s interest in the park” and suggested the city was required to make an exception to an otherwise legitimate ordinance.

The court found that the city was not required to evaluate on a case-by-case basis, whether its significant interests in implementing time, place and manner restrictions are likely to be affected. Determining this on an ad-hoc basis would vest the decision-maker with “unbridled discretion,” creating the risk of favoritism to certain speakers.

Various cases are highlighted in the court’s analysis to demonstrate how park regulations survived constitutional scrutiny. The Court looked at the impact on the government’s objective to protecting public safety and welfare and maintaining the conditions of the parks. They focused on the defendant’s and the other group’s impact if they were entitled to use the park and the ordinance was not enforced against the defendants. The court found the defendants’ free speech argument was not compelling because the government’s interest would be “less efficiently achieved without the park curfew than with it [and] the regulation satisfies the requirement of narrow tailoring.”

The defendants further argued that enforcement of the ordinance did not leave them with “ample alternative channels of communication.” The Court disagreed, finding that the rights of free speech don’t guarantee freedom to address a group at any public place at any time.

Another forum may have been inconvenient to convey their message, but they were not entitled to their “first or best choice, or one that that provides the same audience or impact for the speech.” Gresham. The court held that the City of Manchester “satisfied the requirement that alternative channels of communication remain open to the defendants, even though those channel may be less effective for their purposes than those which the defendants would have preferred.”

The court found that as applied to the Defendants the ordinance is valid under the State Constitution as a reasonable regulation of time, place and manner restriction.

Lisa L. Wolford, assistant attorney general, on the brief and orally for the State. Barbara R. Keshen, NH Civil Liberties Foundation of Concord, on the brief. Lawrence Vogelman, Nixon Vogelman, Barry, Slawsky & Simoneau of Manchester, orally for the defendants.


Prolerized New England Company v. City of Manchester
2013-357
August 28, 2014
Reverse and Remand

  • Whether the trial court erred in determining that RSA chapter 322 preempts City Ordinances regulating junk and scrap metal dealers.

Prolerized operates two scrap metal recycling centers in Manchester. In 1995, as a licensing condition, a city ordinance was adopted requiring scrap metal dealers retain transaction records. In 2012, an ordinance was adopted to combat metal theft. This ordinance, § 114.03, required that additional information be collected about the transaction and forwarded electronically to the police or an authorized storage site. A charge of $.50 was charged for each records transmission. The trial court ruled in favor of Prolerized, finding State Law preempted § 114.03, and because of that ruling they did not consider whether § 114.03 imposes an unlawful business tax or violates constitutional protections.

On appeal, the Court reviewed de novo. First, the Court reviewed the general principals of preemption. The Court focuses on implied preemption, stating that it can be found where there is a “comprehensive statutory scheme [with] legislative intent to supersede local regulation.” N. Country Envtl. Servs. V. Town of Bethlehem, 150 N.H. 606, 611 (2004).

The Court focuses on the comprehensiveness of the statutory scheme. The Court finds that regardless of Prolerized arguments to the contrary, the language of RSA 322 delegates authority to local authorities to regulate junk and scrap metal dealers, not the State. The Court specifically sites RSA 322:1, 2, 6, 6-a, 7 and 11 and mentions they all reference the local board, showing the legislative intent to delegate control to the local entities. Therefore, the Court finds that RSA 322 does not constitute a comprehensive and detailed State regulatory scheme.

The Court focuses on the record keeping, because while there is not a comprehensive State regulatory scheme, a municipal ordinance can be preempted if it conflicts with State law. The Court focuses their review to whether RSA 322 authorizes a local board to require a licensee to enter into a contract with a private 3rd party. The Court disagreed with Prolerized that the more detailed record keeping requirements in §114.04(c) and (d) are preempted by RSA 322:6-a. RSA 322:6-a requires a dealer to maintain records the local board finds sufficient. Therefore, this statutory requirement cannot be read as a maximum allowable requirement. Because the local authority has the power to determine what information is sufficient, this more detailed requirement of the ordinance does not conflict with the statute. Likewise, the Court finds the local board has the discretion to determine in what format the records are kept. The Court finds that the language does not limit the types of ordinances that a local authority can enact. The Court holds that a dealer complying with the record keeping requirements of the City ordinance can still comply with the requirements of RSA 322, both of which can operate concurrently. Therefore, the trial court erred in determining that the City’s record keeping ordinances were preempted because they were incompatible with State Law.

Next, the Court turns to the transaction fee that is charged for the transmission of the electronic record. RSA 322:11 applies to license fees. Therefore, the Court must determine if this is a license fee. RSA 322 does not define “license fee.” First, the Court looks at both the dictionary definition and the term in other parts of the Revised Statute Annotated and determines that they are consistent. Next, the Court looks at the character of the fee, finding the fee is not paid to secure the right to engage in the business of scrap metal, but rather with each electronically submitted record. The Court finds that because the fee is not a license fee it is not incompatible with State Law and is not preempted. Therefore, the Court reverses and remands.

Donald C. Crandlemire, Sheehan & Gordon PA of Concord, on the brief and orally for the petitioner. Peter R. Chiesa, Office of the City Solicitor, on the brief and orally for the respondent.


Bill Duncan & a. v. State of New Hampshire & a.
No. 2013-455
August 28, 2014
Vacated and Remanded

  • Whether the trial court erred in determining that the petitioners had standing to bring suit under RSA 491:22, I.

The legislature amended RSA 77-G:1, VIII, XV, :2-:5 overriding a gubernatorial veto. The program creates a tax credit for business organizations and enterprises that contribute to approved scholarship organizations. The program provides for “stabilization grants” to school districts. The trial court concluded the program violated Part II, Article 83 of the State Constitution. They determined that the tax credit constituted “money raised by taxation,” but that provision was severable from the remaining provisions and that the program could proceed but that monies and tax credits could not go to “school or institutions of any religious sect or denomination.” The State and intervenors appealed and the petitioners cross-appealed.

The intervenor’s asserted that the 2012 amendment to RSA 491:22 was unconstitutional. The Court reviewed the issue de novo. The Court contrasted the language of RSA 491:22, I pre and post amendment. The legislature had passed the amendment in response to the Court’s decision in Baer v. New Hampshire Department of Education, 160 N.H. 727 (2010). It was an attempt to restore taxpayer standing as it had been interpreted in the older line of cases, pre-Baer.

The intervenors argue that the dispensation of a showing of “personal injury” in the amendment to RSA 491:22, I violates Part II, Article 74 and Part I, Article 37 of the State Constitution and that it cannot be relied upon to establish standing. The Court agrees that it violates Part II, Article 74 of the State Constitution, but declines to decide if it violates Part I, Article 37. The Court concludes that the standing argument is sufficiently briefed for review, but alternatively could be addressed sua sponte because it is a question of subject matter jurisdiction.

First, the Court looks to the purpose and intent of Part II, Article 74. Part II, Article 74 does not authorize the Court to issue advisory opinions to private individuals or to either branch of the legislature regarding existing legislation. The Court is limited to deciding actual cases. The Court highlights a variety of cases, including Harvey, In re School - Law Manual, and Faulkner v. Keene to show that the Court does not provide merely advice but a determination of rights. Part II, Article 74 imposes standing requirements similar to those imposed in Article III of the Federal Constitution. The parties must have “personal legal or equitable rights that are capable of being redressed by the court.” Valley Forge College v. Americans United, 454 U.S. 464, 472 (1982). The Court found the language of the amendment was an “abstract interest in ensuring the State Constitution is observed.” There must be a “concrete, person injury requirement” because “there can be no constitutional cause of action without a [personal] injury and [the legislature] does not have unlimited power to define injuries.” J. Doggett, “Trickle Down” Constitutional Interpretation: Should Federal Limits on Legislative Conferral of Standing be Imported Into State Constitutional Law?, 108 Colum. L. Rev. 839, 847 (2008). The Amendment to RSA 491:22, I violates Part II, Article 74 because the language of the statute allows the parties to bring a claim without showing their personal rights were impaired. The Court highlights there is a federal exception, they decline to determine whether to recognize the exception. The Court holds that the amended RSA 491:22, I violates Part II, Article 74 of the State Constitution because it confers standing without a showing of that “personal rights were impaired or prejudiced.”

Next, the Court looks at whether the petitioners would have had standing to challenge RSA 77-G under the previous RSA 491:22, I. The Courts look at DamlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006). There, the U.S. Supreme Court found that “[n]either sort of speculation suffices to support standing.” Id. There, like here, the injury claimed was not concrete and personalized. “Special interest, alone, does not constitute a “definite and concrete” injury sufficient to confer standing.” Avery, 162 N.H. at 608. Here, the petitioners fail to show any personal injury suffered as a result of the alleged constitutional error. Therefore, the Court finds they do not have standing to bring the constitutional claim.

The petitioners argue that if they lack standing then no one has standing. The Court disagrees with the petitioner; a taxpayer could have standing when they have a “sufficiently personal and concrete interest to confer standing.” The Court holds only “ that the generalized interest in an efficient and lawful government, upon which the petitioners relay and the amendment to RSA 491:22, which purports to confer standing, are not sufficient to meet the constitutional requirements necessary for standing to exist.” Therefore, the Court vacated and remanded.

On the brief for the petitioners: Daniel Mach and Heather L. Weaver, ACLU Foundation Program on Freedom of Religion and Belief of Washington D.C.; Ayesha N. Kahn and Alex J. Luchenister, Americans United for the Separation of Church and State of Washington D.C.; Gilles Bissonnette, New Hampshire Civil Liberties Union of Concord. Alex J. Luchenister, orally for the petitioners. Richard W. Head, associate attorney general, Joseph A. Foster, attorney general, Frank C. Fredericks, attorney on the brief and Mr. Head orally for the State. Richard D. Komer and Timothy D. Keller, Institute for Justice, or Arlington Virginia on the brief and Mr. Komer orally for the intervenors. Michael J. Tierney, Wadleigh, Starr & Peters PLLC of Manchester on the brief for the intervenors. Gregory S. Baylor, of Washington D.C., Heather Gebelin Hacker, of Folsom, California, and Michael J. Compitello, of Bedford for Alliance Defending Freedom, Cornerstone Policy Research and Liberty Institute, as amici curiae. Channing M. Cooper, of Washington D.C. on the joint brief for American Federal of Teachers, AFL-CIO, and American Federation of Teachers- New Hampshire, as amici curiae. James F. Allmendinger, of Concord, staff attorney, on the joint brief for NEA-New Hampshire, as amicus curiae. Robert C. Kirsch, Mark C. Fleming and Eric D. Wolkoff, Wilmer Cutler Pickering Hale and Dorr LLP of Boston, Massachusetts, on the brief for the Anti-Defamation League as amicus curiae. John Anthony Simmons, Sr., Simmons & Ortlieb PLLC of Hampton on the brief, Eric C. Rassbach and Asma T. Uddin of Washington D.C. by brief for The Becket Fund for Religious Liberty as amicus curiae. Edward C. Mosca, Mosca Law Office of Manchester on the brief, Ilya Shapiro of Washington D.C. by brief for The Cato Institute, Andrew J. Coulson and Jason M. Bedrick as amici curiae. Roger G. Brooks and Benjamin H. Diessel, Cravath, Swaine & Moore LLP of New York, New York on the brief and Roy S. McCandless, McCandless & Nicholson PLLC of Concord on the brief for Concord Christian Academy, Grace Christian School, Concord Christian Academy Giving and Going Alliance and Roman Catholic Bishop of Manchester as amici curiae. Lucy C. Hodder of Concord, legal counsel to the Governor, and John M. Greabe, of Hopkinton, by brief for the Honorable Margaret W. Hassan as amicus curiae. Andru H. Volinsky and Christopher G. Aslin, Bernstein, Shur, Sawyer and Nelson PA, of Manchester, on the joint brief for New Hampshire School Administrators as amicus curiae. Barrett M. Christina, staff attorney, of Concord on the joint brief for New Hampshire School Boards Association, as amicus curiae. Joshua P. Thompson, of Sacramento, California, and William L. O’Brien, of Mont Vernon, by brief for Pacific Legal Foundation, Greg Hill, Jim Forsythe, William O’Brien, Pamela Tucker, Michael Balboni, Fenton Groen, and Andrew Sanborn, as amici curiae.


Northern New England Telephone Operations, LLC D/B/A FairPoint Communications - NNE v. City of Concord
No. 2013-221
August 29, 2014
Vacate and Remand

  • Whether the trial court erred in granting summary judgment to Northern New England Telephone Operations d/b/a FairPoint in their equal protection challenge to the City of Concord’s tax for the use and occupation of public property.

From 2000 to 2010 the City of Concord taxed FairPoint for the use of poles, cable and equipment on City rights-of-way. During that period, taxes were not levied for varying period of time on others, including Comcast, Public Service of New Hampshire and others, because the City was unaware of their usage of the rights-of-way. FairPoint challenged the constitutionality of this tax during those years and the trial court granted their motion for summary judgment concluding “the City violated FairPoint’s right to the equal protection of the laws under the State and Federal Constitutions, and that the appropriate remedy was to strike [the] illegal tax.” A motion for reconsideration as denied and the City appealed.

The Court analyzed the trial court’s decision de novo as it involved a matter of constitutional law. The Court concluded that FairPoint’s equal protection claim involved “selective enforcement” and wasn’t a challenge to the tax scheme itself. State v. Hofland, 151 N.H. 322, 325, 326 (2004). This claim of “selective tax enforcement” was analyzed under the rational basis test. Rochester III, 156 N.H. at 630. The Court looked at whether the selective enforcement was intentional. The Court notes that FairPoint misconstrued the rational basis test in Rochester III, where they argued that the failure to assess a right-of-way tax against all entities violated the equal protection clause. The Court stated that FairPoint must show that the enforcement was more than “historically lax” and that it was “conscious, intentional discrimination.” Anderson, 155 N.H. at 499.

FairPoint argued and the Court disagreed that taxation errors without intentional selection violate the equal protection rights of taxpayers. Alternatively, FairPoint argued “that even if it were required to demonstrate discriminatory intent to succeed on its equal protection claim, “the undisputed facts before the trial court demonstrated that [the City] intentionally discriminated against FairPoint.” The Court found that because the trial court erroneously concluded that discriminatory intent did not need to be demonstrated and did not address whether the City intentionally discriminated against FairPoint they are leaving that issue to be addressed by the trial court on remand. Because the trial court applied an erroneous legal standard the Court vacated the trial court’s ruling for summary judgment, struck the imposed right-of-way tax and remanded for further proceedings.

Daniel E. Will and Joshua M. Wyatt, Devine, Millimet & Branch PA of Manchester on the brief for the petitioner. Joshua M. Wyatt orally for the petitioner. James W. Kennedy, city solicitor, and Danielle L. Pacik, deputy city solicitor, on the brief for the respondent. Mr. Kennedy orally for the respondent.


Civil Procedure
The State of New Hampshire v. Sean Brown
No. 2013-086
Aug. 6, 2014
Reverse and Remand
  • Whether the trial court erred in denying a defendant’s motion for a new trial alleging ineffective assistance of appellate counsel for lack of jurisdiction

At a trial court hearing, the defendant made a motion for a new trial for ineffective assistance of appellate counsel. The state contended the trial court lacked jurisdiction to decide the claim, and the trial court agreed with the state.

On appeal, the defendant and the state urged the NH Supreme Court to adopt the same procedure. Accordingly, the court determined “appellate courts have an interest in avoiding cases which require the Court to perform an unfamiliar task of fact finding,” State v. City of Dover (2006), and the trial court should hear such claims. In terms of the procedure for raising an ineffective assistance of appellate counsel claim, the court analyzed how other jurisdictions have handled these claims. The court concluded that a trial court’s assessment of appellate counsel does not affect an appellate court function. An attack is not being made on the judgment, but rather is an attack on the appellate counsel’s performance in failing to seek relief and constitutes and error relating to the validity of the original judgment.

The court concluded that because “the trial court is better equipped to resolve the factual disputes that frequently underlie assertions of ineffective assistance of appellate counsel, we conclude that the proper forum for raising such claims is the trial court.” The court reversed and remanded.

Nicolas Cort, assistant attorney general, on the brief and orally for the state. Jared Bedrick, Sisti Law Offices of Chichester, on the brief and orally for the defendant.

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