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Casemaker

Bar News - April 15, 2015


Supreme Court At-a-Glance

This month, the four opinions from March were summarized by legal editors from Casemaker, which posts headnotes and summaries of all NH Supreme Court opinions in the Casemaker legal research library. Attorneys interested in summarizing NH Supreme Court slip opinions for Bar News should contact Lisha Brosseau.

March 2015

Consumer Protection/Construction

Richard Murray & a. v. Keith McNamara & a.
No. 2013-630
March 20, 2015
Affirmed in part; and reversed in part.

  • Multiple issues raised on appeal regarding breach of an implied warranty of workmanlike quality, applicability of the NH Consumer Protection Act (CPA), and application of the CPA

The defendants, owners of a construction business, built a house for an individual. The plaintiffs purchased the house for $120,000. Shortly before their purchase, the plaintiffs visited the house several times and had it inspected.

Neither the plaintiffs nor the home inspector observed mold in the house. Nonetheless, after living in the house for several months, the plaintiffs discovered mold in a closet. The plaintiffs sued the defendants, asserting a claim under the New Hampshire Consumer Protection Act (CPA), a claim for breach of the implied warranty of workmanlike quality, and other claims that were not germane to the instant appeal.

The defendants moved to dismiss the CPA claim. The trial court denied the motion. The jury returned a verdict in favor of the plaintiffs on the breach of implied warranty claim, awarding $70,000. The defendants filed a motion for a judgment notwithstanding the verdict (JNOV), which the trial court denied. In the same order, the court ruled in favor of the plaintiffs on the CPA claim.

The New Hampshire Supreme Court found that the construction of the house was an exempt transaction pursuant to RSA 358-A:3, IV-a and that the plaintiffs’ CPA claim should have been dismissed, because the allegedly wrongful transaction occurred more than three years before the plaintiffs knew or reasonably should have known of it. Thus, the court reversed the trial court’s ruling on the CPA claim.

Further, the court could not say that the sole reasonable inference that might be drawn from the evidence, which must be viewed in the light most favorable to the plaintiffs, was that the defects were plain and obvious and, thus, would have been seen by the individual, as the defendants claim. Also, the court could not say that the sole reasonable inference that may be drawn from the evidence was that the defendants’ construction only possibly rather than probably caused mold growth.

Next, the court was not persuaded that the defendants were insulated from liability on the breach of the implied warranty of workmanlike quality claim. Further, the court rejected the defendants argument that JNOV was warranted. Accordingly, the judgment was affirmed in part and reversed in part.

Construction of the house was an exempt transaction pursuant to RSA 358-A:3, IV-a; CPA claim should have been dismissed, because the allegedly wrongful transaction occurred more than three years before the plaintiffs knew or reasonably should have known of it; implied warranty claim affirmed.

Edward D. Philpot Jr., of Laconia (on the brief and orally), for the plaintiffs. Plymouth Law Center, of Plymouth (Gabriel Nizetic and Nikolas Frye on the brief, and Nizetic orally), for the defendants.


Compensation Appeals Board

Appeal of Brandon Kelly (New Hampshire Compensation Appeals Board)
No. 2013-867
March 20, 2015
Reversed and remanded

  • Whether the work environment of the employee was a substantial contributing factor to his injuries

The petitioner appealed a decision of the New Hampshire Compensation Appeals Board (CAB) denying his claim for workers’ compensation benefits for severe injuries he sustained while driving between a job site and his place of employment.

The CAB ruled that the injuries did not arise out of his employment as required by RSA 281-A:2, XI (2010). The New Hampshire Supreme Court noted that the petitioner’s job required him to drive to various job sites in a company truck.

On the day of the accident, he was driving a company truck from a job site in Massachusetts to the company shop in Hudson to unload the truck. There could be no question that the injurious effects of falling asleep were increased by the environment in which the petitioner found himself at the time he fell asleep behind the wheel of a moving truck.

The court had no difficulty concluding on the record, as a matter of law, that the petitioner’s employment was a substantial contributing factor to the injury. Further, as the court explained in Mulhall v. Nashua Manufacturing Co., 80 N.H. 194, (1921), that the intention of the Workers’ Compensation Law was to make the business bear the burden of incidental and accidental injuries without regard to the question of negligence, either on the part of the employer or the employee.

As noted above, that was not a case involving an employee’s disease or internal weakness. Rather, the case involved a tired employee who fell asleep while driving a company truck to the company shop in order to unload the truck, all within the course of his employment.

Even if the court were to assume that the petitioner was negligent in choosing to drive and in falling asleep while doing so, barring recovery on that basis would be contrary to the remedial purpose of the Workers’ Compensation Law. Accordingly, the court reversed the CAB’s ruling that the petitioner’s injury did not arise out of his employment and remanded for further proceedings consistent with the instant opinion.

Petitioner’s employment was a substantial contributing factor to the injury; even if the court were to assume that the petitioner was negligent in choosing to drive and in falling asleep while doing so, barring recovery on that basis would be contrary to the remedial purpose of Workers’ Comp.

Nixon, Vogelman, Barry, Slawsky & Simoneau, of Manchester (Leslie C. Nixon and David L. Nixon on the brief, and Ms. Nixon orally), for the petitioner. Mullen & McGourty, of Salem (Craig A. Russo on the brief and orally), for the respondent. Douglas, Leonard & Garvey, of Concord (Benjamin T. King on the brief), for New Hampshire Association for Justice, as amicus curiae.


Criminal Law

State v. Makenzy Thelusma
No. 2013-828
March 20, 2015 Affirmed

  • Whether an inculpatory statement the defendant made to the police should have been suppressed and whether the evidence was insufficient to support the convictions

Following a jury trial in the trial court, the defendant was convicted of possession of heroin, cocaine, and marijuana.

The New Hampshire Supreme Court noted that the trial court did not err in allowing the state to admit the statement. There was no other bag in the instant case and the defendant did not explain how his statement to the detective fit with his alternative theory.

Even if the defendant’s alternative theory were possible, the court did not review whether another hypothesis “could explain the events in an exculpatory fashion,” but “whether the alternative hypothesis was sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.”

Further, given the defendant’s statement to the detective, the alternative theory was not reasonable. The defendant had not met his burden to show that no rational trier of fact could have found the state’s view of the evidence to be the only reasonable conclusion. Therefore, the evidence was sufficient to convict the defendant of possession of heroin and cocaine.

Accordingly, the judgment was affirmed.

Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.


Real Property

Village Green Condominium Association v. David A. Hodges & a.
No. 2014-141
March 20, 2015
Affirmed

  • Whether the Superior Court erred in ordering the respondents to contribute to the maintenance and repair of an easement they hold over property owned by the petitioner

The petitioner Village Green Condominium Association (Association) was a residential condominium association that owned real property adjacent to the street. The respondents owned and, through an affiliated corporate entity, operated three apartment complexes on property abutting the petitioner’s property. They hold an easement over the petitioner’s property that provided access from the apartment complexes to the street (easement).

The petitioner brought the instant action, seeking a declaration that the respondents were required to pay their pro rata share of the costs of maintaining and repairing the easement. In the instant declaratory judgment proceeding, the respondents appealed an order of the trial court ruling that they must contribute to the maintenance and repair of an easement they hold over property owned by the petitioner.

The New Hampshire Supreme Court found that the trial court did not err in determining that the respondents were required to contribute to the maintenance and repair costs of the easement, absent a contrary agreement in the deed regarding the obligation to maintain and repair the easement.

Further, the court observed that the mere fact that the petitioner explored the options prior to bringing its claim against the respondents was insufficient to render the trial court’s findings clearly erroneous or unsupported by the evidence. Thus, the trial court did not err in finding that the petitioner’s claim was not barred by waiver or laches.

Finally, the court upheld the trial court’s finding that the parties had not established a course of conduct relieving the respondents from any obligation to contribute to the maintenance and repair of the easement. Accordingly, the judgment was affirmed.

Respondents were required to contribute to the maintenance and repair costs of the easement, absent a contrary agreement in the deed; petitioner’s claim was not barred by waiver or laches; course of conduct did not relieve the obligation.

Janson & Koppenheffer, of Lebanon (William K. Koppenheffer on the brief and orally), for the petitioner. Cleveland, Waters and Bass, of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the respondents.

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