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Bar News - September 16, 2015

Supreme Court At-a-Glance


August 2015

Criminal Law

The State of New Hampshire v. Christopher Kean
No. 2014-566
Aug. 7, 2015
Vacated and Remanded

  • Whether the court erred in; finding the plaintiff had demonstrated ownership of the jacket and patch by the City of Manchester; ordering the jacket be returned to the defendant; ordering the forfeiture to the state without notice

The defendant was observed by Manchester police wearing an official but discontinued Manchester police jacket near a police substation. Though the jacket had been discontinued in 1999, it bore a current Manchester police patch. The defendant was stopped and warned about the jacket. The next day he was observed by another officer still wearing the same jacket and was arrested for impersonating a police officer. At trial, the case was dismissed, because the state could not produce a material witness. The court ordered that the jacket be returned to the defendant and the patch be removed from the sleeve and forfeited to the state.

Under RSA 595-A:6; upon application by a prosecutor, defendant, or civil claimants, the court, prior to trial or upon an appeal after trial, shall, upon notice to a defendant and hearing, and except for good cause shown, order returned to the rightful owners any stolen, embezzled or fraudulently obtained property, or any other property of evidential value, not constituting contraband... All other property seized in execution of a search warrant or otherwise coming into the hands of the police shall be returned to the owner of the property, or shall be disposed of as the court or justice orders, which may include forfeiture and either sale or destruction as the public interest requires, in the discretion of the court or justice, and in accordance with due process of law.

The Supreme Court reviewed the trial court’s ruling for unsustainable exercise of discretion and concluded the trial court did not err in finding that the state adequately rebutted the presumption of defendant’s ownership by demonstrating a “cognizable claim of ownership” of the jacket and the patch by the City of Manchester.

The trial court properly applied the burden of proof standard from United States v. Chambers; [T]he government is permitted to seize evidence for use in investigation and trial, but ... such property must be returned once criminal proceedings have concluded, unless it is contraband or subject to forfeiture... The burden shifts to the government when the criminal proceedings have terminated.

At that point, the person from whom the property was seized is presumed to have a right to its return, and the government must demonstrate that it has a legitimate reason to retain the property. The government may meet this burden by demonstrating a cognizable claim of ownership or right to possession adverse to that of the movant.

However, after finding the jacket belonged to the city, the trial court erred in returning the jacket to the defendant contrary to RSA 595-A:6. The trial court also erred in ordering the forfeiture of the patch after finding that the patch belonged to the City of Manchester.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State. The Law Offices of Martin & Hipple of Concord (Seth J. Hipple on the brief and orally), for the defendant.

Civil Law

Scott Kukesh & a. v. Beverly P. Mutrie, Individually and as Trustee of the Beverly P. Mutrie Revocable Trust
No. 2014-0402 Aug. 4, 2015

  • Whether the court erred in; denying the plaintiff’s motion to compel; considering facts outside the writ; holding the Firefighter’s Rule barred plaintiffs’ claims; and declining to extend parental liability based solely on financial support

The plaintiffs are four police officers. On April 12, 2012, the plaintiffs were attempting to serve a search warrant on the defendant’s adult son at a property in Greenland owned by the defendant. During the execution of the search warrant, the defendant’s son shot and injured the plaintiffs, then took his own life.

The plaintiffs sued the defendant for their injuries under the theory that she recklessly and wantonly allowed criminal activity to take place on property she owned and otherwise directly supported and facilitated her son’s criminal activity.

The defendant filed a motion to dismiss, citing the Firefighter’s Rule, RSA 507:8-h. In pertinent part; “Firefighters, emergency medical technicians... police officers and other public safety officers shall have no cause of action for injuries arising from negligent conduct which created the particular occasion for the officer’s official engagement. However, this section does not affect such officer’s causes of action for unrelated negligent conduct occurring during the officer’s official engagement, or for other negligent conduct, or for reckless, wanton or willful acts of misconduct.”

The plaintiffs alleged that the conduct of the defendant fell within the exception for reckless, wanton or willful acts of misconduct. The trial court concluded that the plaintiffs’ allegations established the defendant’s knowledge of her son’s criminal conduct; however, they did not establish she acted recklessly.

The NH Supreme Court affirmed. The court held that the trial court did not err in denying the plaintiffs’ motion to compel because none of the information sought by the plaintiffs was reasonably calculated to lead to the discovery of admissible evidence.

The plaintiffs themselves submitted additional facts that were not contained within the writ, so consideration of those facts was proper.

The exception to the Firefighter’s Rule for reckless, wanton or willful misconduct did not apply, because the plaintiffs were injured while responding in their professional capacity to the very type of situation for which they were paid and trained to cope, and they failed to allege sufficient facts to establish that the defendant’s conduct was reckless, willful or wanton. Lastly, the court declined to extend parental liability on the basis of financial support alone.

The plaintiffs also claimed the trial court erred in denying their motion to compel. The standard of review for decisions relating to the management of discovery and the admissibility of evidence is unsustainable exercise of discretion. Because the records sought by the plaintiffs were not reasonably calculated to lead to the discovery of admissible evidence, the court held the plaintiffs failed to meet their burden under the unsustainable exercise of discretion standard.

The plaintiffs challenged the trial courts conversion of the defendant’s motion to dismiss into a motion for summary judgment. The Court found that because the plaintiffs themselves submitted additional facts not alleged in the defendant’s original motion, the conversion to summary judgment was proper.

Lastly, the Court considered the ramifications of the extension of parental liability based merely upon the provision of financial assistance or housing. The Court concluded that this would effectively force parents to choose between supporting an adult child for whatever reason and shielding themselves from liability by abandoning that child.

Boynton, Waldron, Doleac, Woodman & Scott, of Portsmouth (Christopher E. Grant on the brief and orally), for the plaintiffs. Devine, Millimet & Branch of Manchester (Donald L. Smith on the brief and orally), for the defendant.

David Eldridge v. The Rolling Green at Whip-Poor-Will Condominium Owners’ Association
No. 2014-540
Aug. 7, 2015

  • Whether summary judgment was appropriate on the plaintiff’s complaint alleging housing discrimination
  • Whether the failure to repair the walkway was a continuing violation of RSA 354-A

The plaintiff is a resident at Whip-Poor-Will Condominium complex. The plaintiff has several disabilities that impair his mobility. He alleged his walkway was uneven and sinking, making it difficult for him to use.

On July 15, 2009, the condo management company told the plaintiff the walkway would be repaired, and the management company notified the Condominium Owners’ Association (COA). The COA responded on Sept. 28, 2015, that the walkway would be included in a list of scheduled repairs when funds became available. When the walkway had not been repaired, the plaintiff filed a complaint with the New Hampshire Human Rights Commission (HRC) on June 3, 2010. The HRC determined there was probable cause for a violation and the COA removed to superior court.

The COA filed a motion for summary judgment. The trial court granted the COA’s motion for summary judgment on the ground that, under the plain language of the Declaration, the COA lacked authority over the plaintiff’s walkway and, as such, the plaintiff had pursued the wrong party in seeking an accommodation.

The plaintiff filed a motion for reconsideration in which he asserted, for the first time, that because the COA had arranged for the walkway to be repaired, it thus had authority to repair the walkway. The plaintiff also sought to introduce new evidence that the COA had arranged for the repair. The court denied the plaintiff’s motion, reaffirming its determination that the plain language of the Declaration provided that the Townhouse Owners’ Association (TOA), not the COA, had sole control over the walkway.

On appeal, the plaintiff argued the trial court erred in (1) failing to consider the new evidence included in his motion for reconsideration; (2) failing to consider his new evidence where such evidence mandated the denial of summary judgment; and (3) unreasonably limiting discovery by refusing to consider evidence obtained during the pretrial discovery period. The COA opposed these arguments and asserted in the alternative the plaintiff’s complaint was not timely.

The NH Supreme Court held that the trial court did not err in granting summary judgment on the plaintiff’s discrimination complaint because 254 days had passed between the alleged discriminatory act and the filing of the discrimination complaint, exceeding the 180-day limitation prescribed by RSA 354-A:21, III. The defendant’s failure to repair the walkway did not constitute a continuing violation of RSA 354-A, because the defendants denial of repair to the walkway was a discrete act that occurred on a particular day.

The Court agreed with the COA’s alternative argument that the plaintiff’s complaint was time-barred and thus did not reach the other arguments. The plaintiff’s claim was time-barred because he did not file his complaint within 180 days of the discriminatory act, as required by RSA 354-A:21, III. Viewing the facts in the light most favorable to the plaintiff, the Court concluded that 254 days passed between the alleged discriminatory act and the filing of the discrimination complaint on June 3, 2010, a time period that exceeds the 180-day limitations period.

The plaintiff argued that the continuing violation doctrine cures the timeliness issue; the Court disagreed, finding the COA’s letter stating that it would not repair the walkway was a discrete act that occurred on a particular day, not a continuing violation.

Douglas, Leonard & Garvey, of Concord (Benjamin T. King on the brief and orally), for the plaintiff. Cronin, Bisson & Zalinsky of Manchester (Mark E. Connelly and Daniel D. Muller, Jr. on the brief, and Mr. Muller orally), for the defendant.

Mountain View Park LLC v. Gerald Robson Jr.
No. 2014-578
Aug. 11, 2015

  • Whether the trial court erred by failing to approve the rental agreement between the parties because RSA 540:13-c, II allows, and RSA 540:28 does not prohibit, such an agreement

The parties entered into a rental agreement where the defendant rented a mobile home from the plaintiff. When the defendant fell behind on rent the plaintiff demanded rent and served him with an eviction notice. The parties entered an agreement to avoid eviction where the defendant agreed to a payment schedule for his arrearage amounts and that he would pay his current monthly rent. The agreement also provided that if the defendant failed to make any of the payments “the court shall, upon request, under oath… and without further judicial review issue a writ of possession to the plaintiff.

Plaintiff submitted this agreement for approval to the trial court. Approval was denied. The court explained that RSA 540:13-c, II does not grant authority for issuance of a writ of possession for an indefinite period of time in the future for non-payment of future rent. On appeal, the plaintiff argued that the trial court erred because RSA 540:13-c, II and RSA 540:28 do not prohibit the agreement.

RSA 540:13-c, II provides that: Nothing in this section shall be construed to prohibit the parties in a case of nonpayment of rent from agreeing that, in spite of judgment for the plaintiff, a writ of possession shall not be issued, if the defendant makes payments in accordance with a schedule designated in the agreement. However, if such payments are not made when due, a writ of possession shall be issued upon request of the plaintiff. The Court notes that the statute applies only to agreements addressing non-payment of rent not rental payments in accordance with a lease or rental agreement.

The NH Supreme Court held that the agreement between the parties violates RSA 540:28, because the agreement as drafted caused the defendant to waive his right to challenge any possessory action based upon a nonpayment of future monthly rent.

The Court interprets RSA 540:28 to apply to all forms of lease or rental agreements. It provides that “[n]o lease or rental agreement, oral or written, shall contain any provision by which a tenant waives any of his rights under this chapter, and any such waiver shall be null and void.” Because the agreement between the parties allows the plaintiff to seek a writ of possession for the defendant’s failure to pay rent after the agreement was entered into, the Court holds that the agreement violates RSA 540:28.

David Canada, for Mountain View Park, self-represented party, by brief. Gerald Robson, Jr., self-represented party, by brief.

Municipal Law

JMJ Properties, LLC v. Town of Auburn
No. 2014-579
Aug. 11, 2015

  • Whether the plain language of RSA 79-A:7 and the accompanying statutory scheme authorized respondent to issue supplemental tax bills

The Court held the plain language of RSA 79-A:7 and the purpose of the entire statutory scheme authorized the town’s issuance of supplemental tax bills in Dec. 2012.

The plaintiff, JMJ Properties, owns an 18-lot cluster subdivision in Auburn. The town taxed the land based upon its current use stats for the 2011 and 2012 tax years. Unbeknownst to the town, JMJ began construction of a road in the subdivision in July 2011. This changed the use of the entire parcel and after learning of the change the town issued a Land Use Change Tax (LUCT) in Dec. 2012. Because the 2012 tax bill was still in error due to the parcel being subdivided the town abated the tax bill for the entire parcel and issued supplemental tax bills for each lot. JMJ requested the town abate the tax bill on each of the lots because it claimed the market value of each lot was excessive. The town declined the abatement request and JMJ appealed.

In its appeal to the Superior court JMJ asserted that: (1) under RSA 76:14, the town could not issue supplemental tax bills because it had already issued tax bills for the 2012 tax year, and, therefore, the JMJ property had not “escaped taxation” for that tax year, see RSA 76:14; and (2) the Town’s “assessment was higher than the fair market value of the property.” The trial court concluded that RSA 79-A:7 allowed the town to tax the land at its ad valorem value after the LUCT bill had been issued, therefore the town’s actions were proper. Moreover, the trial court ruled RSA 76:14 inapplicable granting the town partial summary judgment.

On appeal to the NH Supreme Court, JMJ argues that the trial court’s interpretation of 79-A:7 was erroneous and that the town was required to wait until the beginning of the next tax year to issue supplemental tax bills. The Court held this interpretation was not supported by the statutory language chosen by the legislature.

JMJ argued that thereafter as used in 79-A:7 meant after the beginning of the tax year. However, the Court concluded the legislature used “thereafter” without reference to any required interval between the change in use and the taxation of property based upon market value.

Bussiere & Bussiere, of Manchester (Emile R. Bussiere Jr. on the brief), for the petitioner. Wadleigh, Starr & Peters, of Manchester (Jennifer L. St. Hilaire on the brief), for the respondent.

Accurate Transport, INC. & a. v. Town of Derry
No. 2014-512 Aug. 11, 2015

  • Whether the Zoning Board of Appeal’s (ZBA) use of the term “convert” rendered the substance of its decision improper; abutter’s appeal was timely; petitioners waived, and failed to preserve, any challenge to the merits of the ZBA’s decision that the Town’s zoning ordinance did not permit the proposed use

Accurate Transport submitted a preliminary site plan application to the Derry Planning Board for approval to operate a Dumpster Depot business on property zoned for industrial use. The board evaluated the plan and, in a 7-2 decision, voted to accept jurisdiction over the site plan application.

The planning board then approved the application on Aug. 21, 2012. On Sept. 13, an abutter to the property filed an appeal with the ZBA. The ZBA considered the appeal Oct. 3, in which the ZBA decided that because the appeal “also contained timely allegations relating to the Planning Board’s interpretation and/or application of the zoning ordinance in its Aug. 21 decision, it would “convert abutter’s appeal to an appeal of that decision, and, therefore, it would construe the appeal as timely.”

On Nov. 7, the ZBA decided that the town’s zoning ordinance did not permit the proposed use and that the planning board erred in approving the site. Accurate Transport moved for rehearing then appealed to the trial court and moved for summary judgment arguing the appeal was untimely and that the ZBA lacked authority to treat the appeal as an appeal of the Planning Board’s Aug. 21 decision.

The trial court determined that the appeal was untimely as it was filed on Sept. 13, which was more than 20 days after the Planning Board’s Aug. 21 decision. Accordingly, the court concluded that the ZBA had no authority to consider the abutter’s appeal, and, thus, granted the petitioners’ motion.

On reconsideration, the trial court explained that the abutter had 20 days from the issuance of a written decision to challenge. The trial court concluded that the abutter had 20 days from July 19 to appeal to the ZBA. Given that the appeal was filed in September, the court determined that it was untimely.

The NH Supreme Court held that the use of the term “convert” did not render the decision improper; the appeal period began to run on the board’s conditional approval of the site plan; and petitioners waived, and failed to preserve, any challenge to the merits of the ZBA’s decision.

The Court observed that there is no statutory provision that explicitly permits the ZBA to “convert” an appeal; there is also no statute that prohibits the ZBA from taking such action. Because the zoning broad has broad authority and the appeal at issue here had sufficient content to consider the allegations, the Court found use of the term “convert” did not render the decision improper.

On the issue of timing the Court notes that the “plain language of RSA 676:5, III,... makes clear that when a planning board makes a decision applying or interpreting a zoning ordinance, that decision must be appealed to the zoning board of adjustment pursuant to the procedures set forth for appeals to the board of adjustment under RSA 676:5.”

The overall policy and purpose of RSA 676:5, III is best served by interpreting the statute to mean that “a planning board decision about a zoning ordinance is ripe and appealable to the ZBA when such a decision is made.” On this basis, the Court concludes that the appeal period began to run on the board’s conditional approval of the site plan, because on that date the board decided the zoning issue.

Lastly, the Court held that because the petitioners did not challenge the merits of the ZBA’s decision in their request for rehearing before the ZBA or in their appeal to the trial court the challenge was waived.

Gottesman & Hollis, of Nashua (Morgan A. Hollis and Bryan J. Townsend II on the brief, and Mr. Townsend orally), for the petitioners. Upton & Hatfield, of Concord (Matthew R. Serge on the brief and orally), for the respondent.

Appeal of Robert C. Michele & a. (New Hampshire Wetlands Council)
No. 2014-509
Aug. 11, 2015

  • Whether easement owners have the right to apply for a permit to install a seasonal dock

Appellant Robert Michele owns property with shoreline on Gilmore Pond. Respondents own property nearby that does not directly adjoin the pond. At one time the properties were a single parcel and, when conveyed carried an easement to exclusive use of a 118-foot segment of the shoreline.

Michele bought property with full knowledge of the easement. Respondents applied to the NH Department of Environmental Services (DES) for a seasonal dock, and Michele objected. DES granted the permit, and respondents installed a dock.

Michele filed a motion to reconsider and filed in superior court. The superior court determined the easement was valid, and the Supreme Court affirmed this order. DES affirmed its grant of the dock permit because Michele failed to show the dock unreasonably affected the value or use and enjoyment of the property.

Michele argues the plain meaning of the terms “ownership” and “landowner-applicant” as used in the statutory scheme compel the conclusion that only fee owners can apply for a dock permit, (2) DES, in interpreting the statute, impermissibly went beyond its plain meaning by examining DES regulations.

The NH Supreme Court held that the New Hampshire Wetlands Council did not err in upholding the New Hampshire Department of Environmental Services (DES) decision to grant a dock permit to an easement holder.

The court looked to RSA 482-A:3. Michele argues use of terms “ownership landowner,” and “landowner applicant” requires ownership of the land to apply for a permit. The Court disagreed noting the term “owner” encompasses property interests other than fee ownership, the Micheles’ citation to the repeated use of the terms “owner,” “property owner, “and “landowner” throughout the statutory scheme does not advance their argument. Moreover, the Court cited the statutory purpose as one that protects wetlands and anyone who could build a dock under common law could apply for a permit under 482-A. Because of the breadth of the easement the Court found Bremners to have sufficient ownership interest to obtain a dock permit.

Cleveland, Waters and Bass, of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the petitioners. Johnson & Borenstein, of Andover, Massachusetts (Mark B. Johnson on the brief and orally), for the respondents.

Family Law

In the Matter of Glenda J. Ball and Frank A. Ball
No. 2014-493
Aug. 20, 2015
Reversed and Remanded

  • Whether trial court erred by not extinguishing the respondents obligation to support the parties’ oldest child

The parties were married in 1994 and separated in 2004; a daughter born in 1995, son born in 1997 and a son born in 1999. The parties entered into a separation agreement in Massachusetts requiring the respondent to pay the petitioner $519 per week in child support until the emancipation of the parties’ children.

Emancipation was defined as age 18 or graduation from high school with other conditions. The agreement obligated respondent to continue payments until age 23 if the child was attending a post-secondary educational program.

At the time of separation, the parties moved to New Hampshire and the divorce was recognized. The separation agreement was modified to comport with New Hampshire law such that child support would be payable “until the parties’ youngest child reaches the age of 18 or graduates from high school whichever is later.”

In 2013, respondent filed to modify his child support obligations because the parties’ daughter was 18 and had graduated from high school. Petitioner objected and argued that the New Hampshire court lacked jurisdiction to modify the Massachusetts order. The trial court agreed relying on the Uniform Interstate Family Support Act (UIFSA).

The Court held the trial court erred by not extinguishing the respondent’s obligation to support the parties’ eldest child as required by the court’s 2008 order.

The court looks to section 205 of UIFSA, codified in New Hampshire as RSA 546-B:7, which sets forth the circumstances under which the issuing jurisdiction retains and loses its continuing, exclusive jurisdiction to modify its own support order. Under that provision, “as long as one of the individual parties or the child continues to reside in the issuing state, and as long as the parties do not agree to the contrary, the issuing tribunal has continuing, exclusive jurisdiction over its order – which in practical terms means that it may modify its order.” And also to sections 611(a) and 613 of the UIFSA which govern when a state obtains continuing, exclusive jurisdiction to modify the child support order issued by another state.

Once modified, the modifying tribunal becomes the tribunal of continuing and exclusive jurisdiction.

The Court held that the trial court in this case had subject matter jurisdiction under Section 613 of UIFSA, codified in New Hampshire as RSA 546-B:51, to rule upon the parties’ request for modification. The Court concluded that New Hampshire became the issuing state and assumed continuing and exclusive jurisdiction over the order and obtained authority to modify any provision of the order that could have been modified under Massachusetts law.

Because applying New Hampshire law to the duration of the respondent’s child support obligation is not a jurisdictional defect, the Supreme Court found that the trial court’s 2008 order is not void for lack of subject matter jurisdiction. Moreover, because any errors of law were waived in the 2008 proceeding, the trial court erred in not extinguishing the respondent’s obligations.

Glenda J. Ball, self-represented party, by brief and orally. Gawryl MacAllister & O’Connor, of Nashua (Jared O’Connor on the brief and orally), for the respondent.

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