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Bar News - August 19, 2015

Supreme Court At-a-Glance


July 2015

Civil Law

Deborah Hogan & a. v. Pat’s Peak Skiing, LLC
No. 2014-0420
July 28, 2015
Reversed and remanded

  • Whether the statutory phrase “shall be notified” as it appears in RSA 225-A:25, IV is satisfied upon dispatch of notice or upon receipt of notice.

The plaintiffs both fell from a chairlift while skiing at the defendant’s premises on Feb. 4, 2012. On May 3, 2012, the plaintiffs sent notice to the defendant, by certified return receipt, that they had retained counsel regarding the incident. The notice arrived at the Henniker Post Office on May 5, 2012, and was delivered to the defendant May 10.

The plaintiffs filed suit in December 2013. The defendant moved to dismiss, asserting that the plaintiffs failed to comply with the 90-day statutory notice requirement at RSA 225-A:25, IV. The notice had arrived, at the earliest, on May 5, 2012, the 91st day after the accident. The trial court granted the defendant’s motion to dismiss. Plaintiffs appealed.

On review, the Supreme Court held that notice for purposes of RSA 22-A:25, IV is effective upon mailing, in accordance with the common law mailbox rule. Because both the plaintiffs and defendant offered a reasonable construction of the statutory language, and the legislative history did not clearly resolve the issue, the court ruled in favor of the plaintiffs as the party that would be more harmed by lack of certainty of the actual date of notice (e.g., if delivery of the notice were late for circumstances beyond a plaintiff’s control). Actual notice beyond the 90-day period would cause minimal inconvenience for a ski operator. Because the plaintiffs mailed notice on the 89th day after the incident, the statutory notice requirement was satisfied. The trial court’s decision was reversed and remanded.

Christopher W. Driscoll, Gloucester, Mass., for the plaintiffs. Thomas Quarles (on the brief and orally) and Leigh S. Willey (on the brief), Devine, Millimet & Branch, Manchester, for the defendant.

Criminal Law

State v. Steven P. Collins
No. 2014-078
July 2, 2015
Affirmed in part; vacated in part

  • Multiple issues on appeal from conviction for aggravated felonious sexual assault and felonious sexual assault.

The victim met the defendant and his wife through church functions in the Lebanon area when the victim was 14. The victim alleged that, over the following year, the defendant had sexual intercourse with her on multiple occasions. Specifically, she alleged one incident on Aug. 8, 2009, and a second incident on Nov. 30, 2009.

The jury found the defendant guilty of one count of aggravated felonious sexual assault (AFSA) and two counts of felonious sexual assault (FSA). The court sentenced the defendant to 10-20 years in prison for the AFSA conviction and to 3.5-7 years for each FSA conviction. One FSA sentence was to run concurrently with the AFSA sentence, and the second FSA sentence was to run consecutive to the AFSA sentence.

On appeal, the defendant argued that (1) the state failed to establish that a “pattern of sexual assaults” as required by RSA 632-A:1, I-c, (2) the court erred when it overruled the defendant’s objection to the State’s reference, during closing argument, to evidence admitted solely for impeachment purposes, and (3) the trial court violated the defendant’s constitutional right to be free from double jeopardy under the Federal Constitution because the FSA conviction involved the same victim, location, and acts, over the same period of time as the AFSA conviction.

The Supreme Court upheld the trial court’s ruling on the first two issues. First, a reasonable jury could have found that a pattern of sexual assaults occurred over a period of two months or more, as required by RSA 632-A:1, I-c. Second, even if improper, the defendant failed to demonstrate that the State’s reference to impeachment evidence during its closing argument was prejudicial. Finally, the court vacated the FSA conviction that was to run consecutively with the AFSA sentence, as requested by the defendant. No specific jury instruction regarding the acts underlying the pattern charge was given, so the court could not determine if the defendant was charged twice for the same conduct.

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State. Stephanie Hausman, deputy chief appellate defender, Concord, for the defendant.

State v. Amy Kathleen Mouser
No. 2013-0554 July 15, 2015

  • Whether the trial court erred when it denied the defendant’s motion to suppress evidence obtained from a vehicle search in defendant’s driveway

The trial court found the following facts: The police were looking for an associate of the defendant, who had allegedly violated a protective order. When a police officer arrived at the scene, the person of interest and the defendant were in a car in the driveway of defendant’s multi-family home. When the officer drove up, she parked her cruiser in the driveway in a way that her headlights illuminated the car’s interior. She observed two people making furtive movements inside the car. After arresting the person of interest, she inspected the car by shining a flashlight through a window into the vehicle.

The officer observed what she believed to be drug paraphernalia. The officer arrested the defendant for possession of a controlled drug. At the police station, the defendant claimed that the paraphernalia did not belong to her. Before trial, the defendant moved to suppress the evidence obtained from the search of her vehicle, arguing that the search of the car was done “without reasonable suspicion and/or probable cause, and without her consent.”

The State objected, arguing that the “plain view” exception to the warrant requirement justified the search of the vehicle and seizure of evidence from it. The trial court ruled in favor of the State, and explained that, because the driveway was only semi-private, it was not deserving of traditional curtilage protection. Additionally, the trial court held that the defendant had no reasonable expectation of privacy and the plain view exception to the warrant requirement applied.

On appeal, the Supreme Court upheld the trial court’s decision. The driveway was not entitled to curtilage protection, because there was no evidence that the driveway was “bounded or enclosed or used for anything other than parking, which is not a private activity.” The Court declined to consider the application of the plain view exception, because the defendant failed to adequately raise that argument before the trial court. The trial court’s decision was affirmed.

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

State v. Louise E. Pinault
No. 2014-0281 July 15, 2015
Affirmed in part; reversed in part

  • Whether the trial court properly ordered restitution and whether the State sufficiently alleged all elements of “conduct after an accident,” RSA 264:25, I
The defendant, while driving under the influence, collided with and damaged several mailboxes and subsequently drove off the road into a wooded area. The defendant was acquitted on the charge of driving under the influence but was convicted on a “conduct after the accident” charge, RSA 264:25, I, and ordered to pay $525 in restitution for damage to the mailboxes. On appeal, the defendant argued that restitution was improper because the conduct requiring restitution did not occur “after the accident.” She also argued that the State’s complaint did not adequately allege all of the elements of the offense charged. The Supreme Court agreed that restitution was improper in this case, because the damage at issue “was not a result of the crime for which the defendant was convicted.” Defendant was acquitted on the driving under the influence charge, and accordingly could only be required to pay restitution for damage caused by the conduct underlying the “conduct after the accident” conviction. The Supreme Court next held that any deficiency in the charging document was not raised before trial, and any error was not prejudicial to the defendant. The complaint, taken as a whole, adequately provided the defendant notice of the offense with which she was charged. The trial court’s decision was affirmed in part and reversed in part.

Joseph A. Foster, attorney general (Stacey R. Kaelin, assistant attorney general), for the State. Ghazi D. Al-Marayati, Bookman & Al-Marayati, Melrose, Massachusetts, for the defendant.

Petition of Warden, NH State Prison (State v. Roberts)
No. 2015-0203 July 10, 2015

  • Multiple questions on appeal regarding whether the trial court properly granted the respondent habeas corpus relief, where respondent was granted “parole to consecutive”

The respondent was convicted of aggravated felonious sexual assault (AFSA) and sentenced to 4-10 years in prison. He also received a separate sentence of 1-2 years for related conduct; that sentence was suspended. The respondent began serving the 4-10 years in 2008. In April, 2013, he was moved to a halfway house at the prison.

While residing at the halfway house, he was arrested and subsequently returned to the general prison population. Following the respondent’s arrest, the state moved to impose the suspended sentence. The trial court partially granted the State’s motion by imposing the one-year minimum sentence, which was to be served concurrently with the other sentence, but the two-year maximum sentence was suspended.

In August 2013, the respondent appeared before the Adult Parole Board (APB), because he had served the minimum four years for his AFSA charge. The APB “approved for parole to consecutive.” The parole hearing paperwork indicated that the defendant “must have review prior to release consideration.” The respondent thus began serving his one-year consecutive sentence following the August 2013 hearing.

In August 2014, the respondent was not released from prison, but continued serving his original sentence. The respondent filed a petition for writ of habeas corpus, claiming that he was entitled to immediate release. The State objected, arguing that the respondent was not entitled to immediate release, because he was granted “parole to a consecutive sentence” not “parole to release.” The trial court granted respondent’s petition. The State sought certiorari review, which was granted.

On review, the Supreme Court explained the broad discretion afforded to the APB, because there is no right to parole in New Hampshire. Although no statute specifically authorizes the APB to grant parole to a consecutive sentence, the court recognized that this practice is not prohibited and is consistent with longstanding APB practice. Public policy also supports the “parole to consecutive” practice. Accordingly, the APB was not required to hold a revocation hearing prior to “returning” the respondent to his original sentence, because there was no guarantee that the respondent would be automatically released at the end of the consecutive sentence.

The decision to grant “parole to consecutive” does not guarantee release to the community following the completion of the consecutive sentence. The respondent was not entitled to automatic release, because the APB had not “considered” him for release. The trial court’s decision was reversed.

Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney general (on the brief) and Richard W. Head, senior assistant attorney general (on the brief and orally)), for the State. Catherine J. Flinchbaugh, public defender, Concord, for the respondent

Family Law

In the Matter of Tammy Rokowski & Shane Rokowski
No. 2014-0617 July 23, 2015
Affirmed in part; vacated in part; and remanded

  • Multiple issues on appeal from a final divorce decree, including whether the trial court properly relied on its own Internet research and Zillow’s “Zestimate” to determine the value of the marital home

The parties were granted a divorce in 2013, after more than 20 years of marriage. The respondent-husband appealed, raising the following issues: (1) the court’s Internet research of the value of the marital home, (2) the equitable distribution of the parties’ assets and debts, (3) the amount of the alimony award to petitioner-wife, and (4) the payment of expense incurred during the divorce.

The Supreme Court held that the trial court erred when it completed its own Internet research and relied on the real estate website Zillow to ascertain the value of the marital home and to choose a valuation date. The Supreme Court recognized that “it is axiomatic that a trial court cannot go outside of the evidentiary record except as to matters judicially noticed.”

Under New Hampshire Rule of Evidence 201, judicial notice is only appropriate when a fact is “capable of accurate and ready determination by resort to a source whose accuracy cannot reasonably be questioned.” Zillow’s “Zestimate” was not part of the evidentiary record submitted at trial and did not meet the standard for judicial notice.

Accordingly, the Supreme Court vacated the trial court’s rulings relating the valuation and distribution of assets and debts between the parties and remanded the matter to the trial court. The Supreme Court was not able to address the respondent’s claims regarding amounts paid for certain medical bills incurred prior to the divorce and guardian ad litem fees because he failed to provide a sufficient record for review.

Danielle Richey Santuccio, Melendy, Lee & Santuccio, Conway, for the petitioner.

Donald M. Ekberg, North Conway, for the respondent.

In the Matter of Mary E. Sheys & Eric Blackburn
No. 2014-0457 July 15, 2015
Reversed and remanded

  • Whether the trial court improperly granted petitioner’s motion to dismiss based on the argument that the court lacked exclusive, continuing jurisdiction over the parties’ post-divorce parenting

The parties married in 2005 and divorced in New Hampshire in 2009. At the time of the divorce, both parties lived and worked in New Hampshire. The parties retained joint decision-making for their two children, but the children resided primarily with the mother-petitioner.

In January 2013, the petitioner notified the respondent that she would be relocating to Natick, Mass., for work. She moved with the children in February 2013. The respondent filed a motion for contempt against the petitioner for violating the parties’ parenting plan. As a result, a new parenting plan was filed, wherein the parties retained joint decision-making for the children, the children continued to primarily live with their mother, and the respondent had parenting time on alternate weekends, when he was in the Natick area, and at other times as agreed to by the parties.

In December 2013, the respondent filed a second motion for contempt, which was scheduled for hearing on Feb. 19, 2014. On Feb. 7, 2014, the petitioner filed a motion to dismiss on the basis that she and the children had lived in Massachusetts for one year and she had a motion pending in a Massachusetts court to modify the parties’ divorce decree and parenting plan. As such, the petitioner claimed that the children no longer had a “significant connection” with New Hampshire. The trial court agreed and granted the motion to dismiss.

On appeal, the Supreme Court found that New Hampshire retained jurisdiction. As the state issuing the original decree, New Hampshire retained jurisdiction over the matter so long as there remained a “significant connection” with the state. The court joined jurisdictions that “have concluded that a child has a ‘significant connection’ with a state when one parent resides and exercises at least some parenting time there.” Because the respondent exercised parenting time in New Hampshire on alternating weekends, certain holidays, and for some extended periods in the summer, New Hampshire retained its jurisdiction. The Court declined to consider the petitioner’s second argument that New Hampshire was an inconvenient forum pursuant to RSA 458-A:13.

Jon N. Strasburger, Bossie & Wilson, Manchester, for the petitioner. Michael Bedard, Concord, for the respondent.

Municipal Liability

Margaret Dolbeare v. City of Laconia
No. 2014-0703 July 15, 2015
Vacated and remanded

  • Whether the city owed a duty to plaintiff who tripped at a park owned by the city
  • Whether the city was immune from suit for injuries arising out of plaintiff’s use of playground equipment in the park

The City of Laconia owns and maintains Opechee Park. In May 2012, the plaintiff went to the park with her granddaughter and tripped on the edge of a mat by the park swings. Plaintiff filed a complaint against the city alleging negligence and nuisance claims.

The city moved to dismiss, claiming that two recreational use immunity statutes, RSA 212:34, II and RSA 508:14, I, immunized it from plaintiff’s claims. RSA 212:34, II provides that, except as provided in that statute, landowners owe no duty of care “to keep the premises safe to entry or use by others for outdoor recreational activity.” RSA 508:14, I, provides that an “owner, occupant, or lessee of land, including the state or any political subdivision, who without charge permits any person to use land for recreational purposes ... shall not be liable for personal injury or property damage in the absence of intentionally caused injury or damage.”

The trial court denied the city’s motion. On appeal, the Supreme Court considered whether the city owed a duty to plaintiff, despite RSA 212:34, II, and whether the trial court erred when it determined that “using playground equipment is not ... recreation within the meaning of RSA 508:14.”

The Supreme Court first determined that use of playground activity is an “outdoor recreational activity” for purposes of RSA 212:34, II, because use of a playground is similar in nature to the activities specifically enumerated in RSA 212:34, I(c). Accordingly, the trial court erred in finding that the city owed plaintiff a duty of care, because, pursuant to RSA 212:34, the city had no duty to keep the premises safe for use by others for an “outdoor recreational activity.”

The Supreme Court next found that the city was entitled to immunity under RSA 508:14, I, because the plaintiff entered the city’s land free to use the playground and use of the playground equipment constituted “use of land” for purposes of the statute. The trial court’s decision was vacated and remanded.

William D. Woodbury, Normandin, Cheney & O’Neil, Laconia, for the plaintiff. Corey Belobrow, Maggiotto & Belobrow, Concord, for the defendant.

Alissa Lamb m/n/f Logan Lamb v. Shaker Regional School District
No. 2014-0635 July 15, 2015 Affirmed

  • Whether RSA 507-B:2 provided defendant school district with immunity for claims arising out an injury suffered by a student at recess on school grounds

In 2012, Logan Lamb was a student in defendant school district. He was tackled while playing football on the playground during lunch and hit his head. Logan did not return to class after lunch, but none of the school staff reported his absence or the lunchtime incident. He was later found disoriented and wandering the halls. He went to the nurse’s office and his mother was called. Logan’s mother took him to the emergency room, where she learned that he had likely suffered a concussion. Logan’s mother subsequently filed a complaint against the school district alleging that the defendant had a special relationship with Logan and its breach of this duty lead to Logan’s injuries.

The defendant school district moved to dismiss, arguing the RSA 507-B:5 immunized it from the plaintiff’s negligence claims, because plaintiff’s claims did not fall within the exception to immunity at RSA 507-B:2. That provision states that “[a] governmental unit may be held liable for damages ... caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.”

The trial court granted defendant’s motion to dismiss. Plaintiff appealed.

On appeal, the court focused on the definition of “premises” as used in RSA 507-B:2 and concluded that the provision “requires a nexus between the claim and the government unit’s ownership, occupation, or operation of its physical premises.” Because plaintiff claimed that defendant’s breach arose out of its “special relationship” with Logan, rather than operation of the defendant’s physical premises, her claim fell outside RSA 507-B:2. Accordingly, the school district was entitled to immunity under RSA 507-B:5, and the trial court properly granted the defendant’s motion to dismiss.

Tony F. Soltani, The MuniLaw Group, Epsom, for the plaintiff. John A. Curran, Curtin, Murphy & O’Reilly, Nashua, for the defendant.

Real Estate Law – Foreclosures

Jillian Cohen Bergeron v. New York Community Bank
No. 2014-0185 July 24, 2015

  • Whether foreclosure may be instituted by an agent of the entity holding the right of foreclosure

In October 2006, the petitioner executed a promissory note in favor of Drew Mortgage Associates, as well as a mortgage securing the note. The mortgage listed a second company as the mortgagee, and that company subsequently assigned the mortgage to the defendant. In March 2013, the petitioner filed a petition to enjoin foreclosure of the mortgage on her home that secured promissory note, primarily arguing that the defendant was not the genuine holder of the note and therefore did not have the authority to foreclose.

The trial court temporarily enjoined the foreclosure proceedings, pending the mortgagor’s application for loan modification, but then lifted the stay when the application was denied. The trial court noted that the defendant had authority to foreclose “whether it actually holds the note or is merely acting as an agent for the entity which holds the note.”

On appeal, the petitioner argued that because the mortgage and the note are not severable, the defendant was not entitled to conduct a foreclosure sale. The Supreme Court affirmed the trial court’s ruling and held that an agent of the noteholder may properly institute foreclosure proceedings under RSA 479:25. This is consistent with previous cases where the court has permitted foreclosure by entry and publication by an agent of the mortgagee.

Further, the language of the mortgage instrument demonstrated that an agency relationship existed between the mortgagor and the lender, and the mortgage contemplated that both could assign their interests. The trial court’s decision was affirmed.

Kenneth D. Murphy, Coughlin, Rainboth, Murphy & Lown, Portsmouth, for the plaintiff.

Reneau J. Longoria (on the brief and orally) and Michael P. Marsille (on the brief), Doonan, Graves & Longoria, Beverly, MA, for the defendant. Stephanie A. Bray (on the brief and orally) and Dennis B. Labbe (on the brief), New Hampshire Legal Assistance, as amicus curiae.

Jennifer Pike v. Deutsche Bank National Trust Company
No. 2014-0594 July 15, 2015

  • Whether, under New York law, petitioner could raise claims regarding breach of trust
  • Whether the petitioner was entitled to injunctive relief to protect her homestead right pursuant to RSA 480:1

Petitioner’s husband purchased the property at issue in 2001. In 2003, the petitioner and her husband granted a mortgage on the property to New Century Mortgage Corporation. In 2004, her husband refinanced the mortgage with a mortgage loan. In 2007, he filed for bankruptcy. In 2009, the mortgage was assigned to Deutsche Bank Nation Trust. On July 2, 2013, the petitioner and her husband divorced, and the petitioner obtained the property by quitclaim deed. On July 11, 2013 the trust began foreclosure proceedings.

The petitioner obtained a court order temporarily enjoining the sale. The Trust moved for summary judgment, which was granted. On appeal, the Supreme Court first considered whether the assignment to the trust was “void or only voidable.” The petitioner alleged that the trust acted in violation of its pooling and servicing agreement (PSA), thereby voiding the assignment of the mortgage.

The PSA was governed by New York law. Considering New York law, and cases from other states interpreting New York law, the Supreme Court held that “under New York law, ‘unauthorized acts by trustees are generally subject to ratification by the trust beneficiaries.’” Accordingly, the Court held that an uninvolved non-party to the PSA, such as petitioner here, does not have standing to challenge a voidable transaction.

The Court next upheld the trial court’s determination that an injunction was not warranted to protect the petitioner’s homestead right pursuant to RSA 480:1. Petitioner was not able to establish that she would be in immediate danger of irreparable harm if the foreclosure proceeded. She would not lose the right to subsequently claim a homestead right, and the foreclosure would not automatically result in the removal of the petitioner from her home. The trial court’s decision was affirmed.

Deb Bess Urbaitis, Howard & Urbaitis d/b/a Courteous Law, Henniker, for the petitioner. Christopher J. Fischer, Haughey, Philpot & Laurent, Laconia, for the respondent.

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