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Bar News - May 18, 2016

Supreme Court At-a-Glance


April 2016

Administrative Appeals

Appeal of Farmington School District
No. 2015-0032
April 7, 2016
Affirmed in part, reversed in part and remanded

  • Whether the State Board of Education properly reversed the local school board’s decision upholding non-renewal of guidance counselor’s contract
  • Whether the State Board of Education properly refrained from entering an order to reinstate the guidance counselor upon reversal of the local school board’s action

Local board upheld a superintendent’s decision not to renew the contract of a guidance counselor who had filed suit against the principal over the issue of disclosure of an underage pregnancy of a minor student. Counselor appealed to the state board, which reversed the local board’s decision, but which claimed to have no authority to reinstate the counselor to her prior position. Local board appealed the reversal, and counselor cross-appealed for reinstatement.

A 15-year-old student informed the guidance counselor that she was pregnant by her 19-year-old boyfriend and that she wanted to obtain an abortion. The student also indicated that she did not want her parents to find out about the pregnancy because she feared for her safety. The counselor notified the school administration of the situation, but the school principal decided that the student’s parents needed to be informed of the situation.

The counselor disagreed with the principal’s decision and sought a legal opinion from a civil rights attorney, providing the attorney the student’s initials, school grade, age and circumstances. The attorney brought a lawsuit against the principal, claiming that the “judicial bypass provision” in the law typically requiring notification of a minor’s parents before performing an abortion prevented the principal from informing the student’s parents about the pregnancy or her intentions to obtain an abortion. The counselor was named as the plaintiff in that suit, on behalf of the unnamed minor student.

The student independently obtained a judicial bypass order with regard to her abortion, and the principal and school board requested that the injunction enter barring them from notifying the student’s parents of the pregnancy.

At the end of the year, the school notified the counselor that it had decided not to renew her contract, citing insubordination, violation of student confidentiality and neglect of duties in support of that decision. Counselor appealed that decision to the local board, which upheld the school’s decision not to renew, on the bases of insubordination and violation of confidentiality. Counselor then appealed to the state board, which overturned the local board’s affirmation of the school’s decision, but refused to order counselor to be reinstated, claiming it lacked authority to do so.

The Court upheld the state board’s decision, holding that the district’s policies did not require the counselor to escalate her disagreement with the principal’s decision to the superintendent and, thus, her decision to participate in the lawsuit against the principal was not insubordinate.

Moreover, the Court noted that the district’s policies had incorporated the Federal Education Rights and Privacy Act (FERPA), which provides for disclosure of confidential student information in emergency situations. The unwanted disclosure of the student’s pregnancy to her parents, which placed her in fear, was such an emergency. As such, counselor’s limited disclosure of information to the attorney was not a violation of student confidentiality sufficient to sustain the nonrenewal of her contract.

Finally, the Court held that it would be meaningless for the state board to have authority to overturn a local board’s decision without the authority to provide remedy. To that end, the Court remanded the matter back to the state board to order the counselor’s reinstatement and to determine whether the counselor should be entitled to additional relief.

A pointed dissent questioned the Court’s reasoning, finding no relevant statute or case law that would have prevented the principal from disclosing the voluntarily shared pregnancy with the student’s parents. From there, counselor’s actions could very easily be interpreted as insubordinate, subjecting her to the will of the school and the local board, whose decision should have been reviewed under a clearly erroneous standard.

James F. Allmendinger, NEA-New Hampshire, for the counselor. Peter C. Phillips, Soule Leslie Kidder Sayward & Loughman, for the Farmington School District. Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, and Jon Meyer, Backus Meyer & Branch, on the brief for American Civil Liberties Union of New Hampshire, as amicus curiae. Joshua L. Gordon, Law Office of Joshua L. Gordon, and Sarah S. Burg and Amanda S. Hainsworth, Foley Hoag, on the brief for Planned Parenthood of Northern New England as amicus curiae. Theodore E. Comstock, executive director and general counsel, and Barrett M. Christina, staff attorney, on the brief for New Hampshire School Boards Association, as amicus curiae.

Jonathan Wolfgram v. NH Department of Safety
No. 2015-0256 April 29, 2016
Reversed and remanded

  • Whether the trial court properly affirmed a decision of the Department of Safety (DOS) to retain notations to petitioner’s motor vehicle record as to his status as a habitual offender following the annulment of petitioner’s underlying convictions

Petitioner was convicted of multiple motor vehicle offenses that led to his certification by the DOS as a habitual motor vehicle offender. Petitioner’s license was revoked for four years. After his license had been reinstated, petitioner requested that DOS decertify him as a habitual offender, which it did.

Petitioner’s convictions later became eligible for annulment. Although DOS removed the annulled convictions from petitioner’s driving record, including those that had led to his certification as a habitual offender, the record continued to include references to petitioner’s prior habitual offender status. At a hearing requested by petitioner, DOS denied his request to remove those references from his record. Petitioner challenged the denial to Superior Court, which upheld the decision of DOS. Petitioner appealed.

The DOS maintained that the references to petitioner’s prior status were appropriate under RSA 651:5, which provides, in part, that annulled convictions “may be counted toward habitual offender status,” RSA 651:5, X(a). DOS argued that such ongoing notations were consistent with DOS’s public safety purpose.

Petitioner argued that maintaining the notations on his driving record, which could be used by prospective employers or landlords, was inconsistent with the purposes of the annulment statute “to afford an offender... a chance to start anew without this stigma in his records.” (1978).

The Court agreed with petitioner, reading the habitual offender statute and the annulment statute together in order to reach a reasonable result. Essentially because habitual offender status was premised on conviction, and because annulment removed convictions from a person’s record, annulment would leave no conviction upon which to base habitual offender status. Elimination of the reference to habitual offender status was necessary in light of the annulment.

That said, the Court acknowledged that annulment employed a legal fiction – even though a person’s official record was expunged of the prior convictions, in reality the person did have a history of convictions. That history could still be used under the habitual offender statute (as in the case of criminal sentencing) to determine the appropriate response to potential future offenses.

Patrick M. Carron, Concord, for the petitioner. Joseph A. Foster, attorney general (Matthew T. Broadhead, attorney, on the memorandum of law and orally), for the State.

Criminal Law

State v. Timothy Bobola
No. 2015-0305
April 7, 2016

  • Whether the trial court properly denied defendant’s petition to annul a criminal conviction for second-degree assault and a criminal charge of second-degree assault based on ineligibility for annulment of subsequent DUI conviction

Defendant brought a petition in NH Superior Court to have nolle prosequi second-degree assault charge and a conviction for second-degree assault annulled from his criminal record. The state opposed defendant’s petition on the grounds that a subsequent DUI conviction was not ripe for annulment, which prevented annulment of the prior matters under RSA 651:5. The trial court agreed with the state’s interpretation of the statute and denied the petition for annulment. Defendant appealed.

The NH Supreme Court agreed with the trial court, holding that the plain language of the statutory framework as a whole, barred annulment. Specifically, the Court held that under RSA 651:5, if a person is convicted of multiple offenses – in this case, second-degree assault and DUI – he may not be granted an annulment as to any of the convictions until the time requirements for all convictions have been met. Read in conjunction with RSA 265-A:21, “no court shall order an annulment of any record of conviction of driving... while under the influence... until 10 years after the date of conviction.” Defendant’s DUI conviction was less than 10 years prior to his petition, so the trial court properly denied his request for annulment.

Even though it was not a “conviction,” the trial court properly denied annulment of the second-degree assault charge, because it was part of the same case as the second-degree assault conviction. The Court reasoned that both charges were part of the same “case,” the nolle prosequi charge having merely been an alternative theory to the charge resulting in the conviction.

Joseph A. Foster, attorney general (Colleen Laffin, attorney, and Stephen D. Fuller, senior assistant attorney general, on the brief), for the state. Seth J. Hipple, the Law Offices of Martin & Hipple, for the defendant.

State v. Eric R. Cable
Nos. 2014-0163/2015-0025
April 1, 2016

  • Whether the trial evidence was sufficient to prove beyond a reasonable doubt that he caused victim’s death
  • Whether trial counsel rendered constitutionally effective assistance despite failing to object to the admission of evidence and statements in prosecutor’s opening statements and closing arguments

Following a jury trial in NH Superior Court, defendant moved for a new trial claiming insufficiency of evidence and ineffective assistance of counsel. The trial court denied the motion for new trial. The defendant appealed.

Defendant was convicted by a jury of negligent homicide – DUI as a result of the death of a passenger on the defendant’s boat. The victim was riding in the bow of the boat when defendant maneuvered suddenly to jump the wake of another vessel; victim lost his balance, fell overboard, and was struck and killed by the boat, drive and spinning propeller. Defendant’s blood alcohol level was 0.133.

The Court rejected the defendant’s argument that the state failed to establish that his impairment had caused victim’s death – as opposed to a freak accident that could have occurred even if defendant had not been intoxicated. In light of all the evidence presented at trial – reckless conduct, testimony of extended period of drinking throughout the day, prohibition of operating a vessel with a passenger on the bow – the Court held that a rational trier of fact could have concluded that defendant’s impairment caused him to undertake the actions that led to the victim’s death.

The Court also rejected defendant’s arguments that his attorney’s counsel was ineffective. Although counsel did not outright object to certain testimony provided by the state’s witnesses, and did not object to statements made by the state in its opening statement and closing argument, the trial record showed that counsel attempted to correct the inaccurate testimony through cross-examination. Additionally, the trial record showed that counsel had raised objections, which the trial court overruled.

The Court was also unconvinced by defendant’s argument that evidence presented – defendant’s failure to take a boating safety course, defendant’s failure to display the correct boat registration number and defendant’s lack of a boating license – was unfairly prejudicial and should have been objected to by counsel. Because these failings were separate violations for which defendant was charged, the Court held that the evidence was not offered impermissibly as proof of other bad conduct, but as evidence in proof of other charges; even if counsel had objected, the evidence would have been allowed and the outcome would have been unchanged.

Finally, the Court held that the opening statement and closing argument made by the state were “within the latitude accorded prosecutors when summarizing and discussing the evidence presented.” State v. Scott (2015).

Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State. Richard J. Lehmann, Douglas Leonard & Garvey, for the defendant.

State v. Joseph Kuchman
No. 2014-0631
April 19, 2016

  • Whether the trial court erred in denying defendant’s request for a bill of particulars
  • Whether trial court erred in denying defendant’s motions for mistrial following improper testimony before the jury
  • Whether the trial court erred in admitting evidence of a telephone conversation that was prejudicial to defendant, but otherwise impeached the testimony of a trial witness

Defendant and a friend attacked the victim behind a bar. Defendant was unarmed, but the friend used a baton to strike the victim. Among other charges, defendant was indicted and brought to trial for first-degree assault, which claim alleged that defendant “acted in concert with” his friend. A jury convicted defendant of assault. Defendant appealed.

Defendant claimed that the trial court erred in denying him a bill of particulars prior to trial to assist him with the presentation of a defense. The Court held that the denial of the bill of particulars was not error because, 1) all of the elements of the first-degree assault charge had been alleged in the indictment and, 2) defendant’s own motion for the bill of particulars described the various theories the state might have looked to rely on in its case, suggesting that defendant was fully prepared to defend against those various theories.

Defendant also claimed error when the trial court denied his motion for mistrial based on inappropriate testimony from defendant’s friend. The friend had been tried separately and convicted on a similar first-degree assault charge with the “acting in concert” language, which conviction the state raised in the friend’s examination. Defendant objected, arguing that the jury might infer defendant’s guilt based on the friend’s conviction for “acting in concert.” The Court found that the trial court properly provided a curative instruction and that mistrial was unwarranted.

Defendant again claimed error when the trial court allowed the transcript of a conversation between the friend and his mother. The state introduced the transcript to impeach the friend’s testimony, as the friend had lied in a deposition about use of the baton. In the transcript, the friend tells his mother that he lied in his deposition, but didn’t want to correct his error because he thought it would adversely impact the defendant. The trial court allowed the transcript, but again gave a limiting instruction.

The NH Supreme Court agreed that the transcript testimony was not unduly prejudicial to defendant, especially in light of the limiting instruction. The Court also found that the five-day delay by the trial court in issuing the limiting instruction was not erroneous, because the delay was the result of giving the parties time to brief the issue, and the jury did not hear any additional evidence during the trial delay.

Finally, defendant claimed that the trial court erred in denying a mistrial because the state improperly asked the defendant on cross-examination why he had failed to give his account of the incident prior to the trial. Defendant claimed that the use of his silence by the state was a violation of his rights under the 5th Amendment to the US Constitution. The Court disagreed, noting that defendant’s right to remain silent is limited to his silence at the time of arrest and his post-Miranda silence. The 5th Amendment does not protect against impeachment by reference to pre-arrest silence or post arrest, but pre-Miranda silence.

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. Behzad Mirhashem, Mirhashem Law Office, for the defendant.

State v. Rodric R. Reinholz
No. 2014-0513
April 29, 2016

  • Whether the trial court erred in admitting into evidence an affidavit written by the victim
  • Whether defendant’s convictions on two pattern aggravated felonious sexual assault charges should be vacated under the rule of mandatory joinder due to the state’s failure to bring the pattern claims at the same time as two charges of aggravated felonious sexual assault (AFSA) based on individual occurrences

Defendant was charged and with multiple counts of AFSA and felonious sexual assault (FSA) based on individual incidents of alleged sexual assault. The jury was unable to reach a verdict and a mistrial was declared. At subsequent retrials, the state re-brought the counts for the individual incidents, but added two pattern AFSA charges. The pattern AFSA counts were for patterns of conduct similar to the conduct in two of the individual incident counts. Defendant was convicted on three AFSA/FSA counts for individual incidents and on the two pattern AFSA counts. The NH Superior Court denied defendant’s motion to vacate the two pattern AFSA convictions under the mandatory joinder doctrine. Defendant appealed.

Citing State v. Locke (2014), defendant argued that his pattern AFSA convictions should be vacated, because the conduct supporting the pattern claims was the same as the conduct supporting the individual claims, on which defendant had been initially tried. Because the state knew of the individual incidents and the pattern at the time of the initial trial, defendant argued that the state improperly added the pattern claims in the subsequent trial.

The Court rejected defendant’s argument based on an apparent lack of clarity in the record. The pattern AFSA claims required a showing of a series of two or more incidents over a period of time. Although it is possible that the conduct supporting an individual incident count might have been one of the incidents in the series forming the pattern, it is also possible that it did not. Without a clear indication that the jury improperly relied on a particular incident to support both an individual incident count and as one of the series of incidents in a pattern count, the Court would not upset the decision of the trial court.

Defendant also argued that the trial court improperly allowed hearsay evidence in the form of an affidavit of the victim as to the defendant’s alleged conduct. The Court agreed with trial court that the evidence was proper. First, the evidence was held not to be hearsay, because the affidavit was provided not to support the truth of the attested statements, but rather as context for the jury – specifically, as context for defendant’s reaction to the reading of the affidavit in a videotaped police interview. Second, the affidavit was not otherwise unfair to defendant, because the same testimony in the affidavit was provided directly by the victim when she was introduced as a live witness at trial.

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally ), for the State. Thomas Barnard, senior assistant appellate defender, for the defendant.

State v. Vic Washington
No. 2014-0659
April 1, 2016

  • Whether the trial court erred in concluding that the state is required to prove that the identity assumed by a defendant belonged to an actual, rather than a fictitious, person in order to obtain a conviction for identity fraud under RSA 638:26, I(a)

Defendant moved to dismiss indictments on claims by the state that he had committed identity fraud where the identity he alleged assumed was entirely fictional and not the identity of a real person. The Superior Court dismissed the indictments based on the state’s concession that the identity used by defendant was wholly fabricated and based on the language of the statute which “requires the State to prove, among other things, that [the defendant] posed as a ‘natural person[,] corporation or unincorporated association.’” The state appealed.

Recognizing that the dismissal by the trial court was limited to the narrow circumstance where the false identity was wholly fictitious – as opposed to circumstances of “synthetic identity theft,” where a fictitious identity is created by combining the personal information of real individuals with invented information – the Court agreed that the statute’s requirement that the defendant assume the identity of “another person” required a showing by the state that such other person was a natural person.

Because the state had conceded that the assumed identity was fictitious (even though it later identified a real person with the name used by defendant), and because the state failed to argue in the trial court that the information on the magnetic strip of the credit card used by defendant belonged to a real person, in spite of the fictitious name on the face of the card, those factors were not taken into account in the Court’s decision affirming dismissal.

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally), for the State. Thomas Barnard, senior assistant appellate defender, of Concord, for the defendant.

Family Law

In the Matter of Holly Doherty and William Doherty
No. 2014-0812
April 1, 2016
Affirmed in part, reversed in part, vacated in part, remanded

  • Whether the trial court erred in modifying the alimony award
  • Whether the trial court erred in considering the wife’s receipt of foster care payments in calculating her gross income for the purpose of modifying child care and alimony award
  • Whether the trial court erred by not reducing the gross income by the amount wife spent for maintenance of the foster adults in her care
  • Whether the trial court erred in concluding that it lacked jurisdiction over a stipulation of the parties as to division of legal fees relating to border dispute at marital property
  • Whether the trial court erred in limiting the retroactivity of the husband’s modified alimony obligation to the date wife received notice of the petition to modify
  • Whether the trial court erred in crediting wife’s evidence over husband’s evidence in determining the amount of the child support arrearage

Husband brought petition in Family Division to modify child support and alimony obligations after one of the parties’ children reached majority. Wife countered with motion for contempt on child support and alimony arrearages. The trial court issued an order reducing husband’s obligations and determining the amount of arrearages. Both parties appealed.

The trial court did not err in finding that there were unanticipated and unforeseen significant changes in the parties’ finances; moreover, the parties’ own stipulation contemplated reconsideration of husband’s alimony obligations under certain circumstances – one of them being wife’s having obtained a loan modification reducing her monthly mortgage payment by $2,600.

Nor did the trial court err in holding that wife’s receipt of foster care payments for the maintenance of two disabled adults should be considered in calculating her gross income for the purposes of determining whether a modification of the alimony award was in order. Under RSA 458-C:2, all income is to be considered, and wife failed to provide any evidence that the payments received would qualify for one of the stated exceptions.

The trial court did err, however, in failing to reduce the amount of gross income by the amount of expense incurred in caring for the foster adults, because those funds would not have been available for her use in supporting her child. Like a self-employed person who is allowed to deduct business expenses from gross income, the trial court should have taken these expenses into account when calculating wife’s gross income, for the purpose of modifying the husband’s obligations. The trial court also erred in failing to consider the change to wife’s gross income resulting from the reduction of foster payments following the removal of one of the adults from her care.

The Court vacated the order modifying husband’s payment obligations and remanded the matter back to the trial court for re-determination of wife’s gross income, including reduction for appropriate expenses relating to maintenance of foster adults.

The trial court also erred in concluding that it lacked jurisdiction over the division of legal fees incurred in an ongoing boundary dispute at the former marital home. Even though the legal fees had yet to be incurred at the time of the divorce and were not a marital expense, they were an anticipated expense relating to a marital asset that fell “within the broad category of marital debt that the family division can properly consider...” Maldini v. Maldini (2015).

The trial court did not err in limiting the retroactive effect of the modified obligations to the earliest date evidencing wife’s notice of the petition. Because no return of service was filed, the notice date was the date of wife’s filing of a response to the petition. The Court clarified its decision in In the Matter of Birmingham & Birmingham (2006), holding that the limitation to the date of notice on retroactive modification of child support under RSA 458-C:7 would be equally applicable to retroactive modification of alimony under RSA 458:14 and :32.

Finally, the trial court did not err in giving greater weight to wife’s documentary evidence regarding the child support arrearages where husband’s documents were largely illegible and failed to clearly indicate that the bank transactions identified were specifically related to child support obligations.

Doreen F. Connor, Primmer Piper Eggleston & Cramer, for wife-petitioner. Jared O’Connor, Shaheen & Gordon, for husband-respondent.

Insurance Coverage

Thomas Todd v. Vermont Mutual Insurance Co.
No. 2015-0233
April 7, 2016

  • Whether the trial court erred in finding that Vermont Mutual did not owe a duty to defend petitioner against a stalking petition under a homeowner’s policy or umbrella policy issued to petitioner
  • Whether the trial court erred in finding that Hanover did not owe a duty to defend petitioner against a stalking petition under an employment practices policy or directors and officers policy issued to the nonprofit entity with which the petitioner was affiliated

Petitioner was a member of a nonprofit organization. Petitioner had sat on and chaired one of the organization’s committees and had served as the organization’s webmaster. A female member of the organization complained to the organization about petitioner’s “aggressive attitude” toward women and asked that petitioner be barred from organization events. After making this complaint, the member’s home computer was hacked and her car window was smashed with a metal object. The member attributed these actions to petitioner and filed a civil stalking action against petitioner.

Petitioner filed claims with his homeowners and umbrella policy insurer (Vermont Mutual) and with the organization’s insurer (Hanover) and demanded defense coverage against the stalking action. Both insurers denied coverage. Petitioner ultimately prevailed on the stalking action, but expended $18,000 in attorneys’ fees to do so. On petitioner’s declaratory judgment action against the insurers, the Superior Court awarded summary judgment to Vermont Mutual and Hanover, finding that both properly denied coverage. Petitioner appealed.

In affirming the trial court’s decision, the Court engaged in routine interpretation of insurance contracts.

The Court held that the alleged incidents with the hacked computer and window did not meet the definition of “occurrence” or “accident” that would have triggered the duty to defend under the Vermont Mutual policies. Rather, the Court agreed with the trial court that the alleged hacking and vandalism were actions that were “inherently injurious” and not accidental. Additionally, the alleged hacking did not rise to the level of “invasion of private occupancy” under the umbrella policy, which the Court held was limited to a trespass on real property, not an intrusion into a computer.

As to Hanover and the employment practices and director and officer policies, the Court’s holding relied primarily on the fact that petitioner’s alleged conduct – hacking the member’s computer and damaging the member’s car window – did not occur within the scope of petitioner’s presumed employment or in his capacity as some representative or affiliate with the organization. The Court endorsed the trial court’s use of the respondeat superior analysis used in Tessier v. Rockerfeller (2011) as a suitable tool for evaluating petitioner’s conduct for the purposes of scope of employment and whether the duty to insure would arise.

Donald L. Smith, Thomas Quarels, Jr. and Owen R. Graham on the brief, Smith orally, Divine Millimet & Branch, for petitioner. Gary M. Burt and Matthew J. Delude on the brief, and Burt orally, Primmer Piper Eggleston & Cramer, for respondent Vermont Mutual. Perry M. Shorris and Kip J. Adams on the brief, and Shorris orally,Lewis Brisbois Bisgaard & Smith, for respondent Hanover.

Legal Malpractice

James Yager v. K. William Clauson
No. 2015-0463
April 19, 2016
Reversed and remanded

  • Whether the trial court erred in awarding summary judgment to respondent attorney on the grounds that petitioner failed to identify expert witnesses to testify on the legal malpractice claim

Petitioner filed a legal malpractice action in Superior Court against respondent attorney, who failed to file a timber trespass action for petitioner before the statute of limitations expired. Respondent moved for summary judgment on the grounds that petitioner had failed to identify any expert witnesses to establish the two prongs of legal malpractice – 1) breach of the standard of legal care and, 2) that the petitioner would have prevailed in the underlying timber trespass action. The trial court awarded respondent summary judgment. Petitioner appealed.

The petitioner argued that no expert was required to establish breach of the standard of care, because the attorney’s missing of the filing deadline for the timber trespass action was established by the dismissal of that case. The petitioner also argued that no legal expert was needed on the issue of likelihood of success, because he had disclosed timber trespass experts and intended to prove the respondent’s malpractice by the case-within-a-case or trial-within-a-trial method.

The Court agreed with petitioner, noting that the trial-within-a-trial method is “particularly apt” in the context of legal malpractice where the attorney misses a statute of limitations.

Dismissal of the attorney’s law firm was affirmed for procedural reasons, because it did not appear on the record that petitioner had timely responded to the firm’s discovery requests, and petitioner failed to oppose the firm’s motion to dismiss on that basis.

Jeffrey C. Spear on the brief, Orr & Reno, for petitioner. K. William Clauson, self-represented, by brief.

Real Property

Thomas Benoit v. Joseph A. Cerasaro, Trustee
No. 2015-0573 April 19, 2016

  • Whether the trial court erred in concluding that a Declaration of Covenants restricting use of common land in a subdivision survived a tax sale
  • Whether the trial court erred in finding that the owners in the subdivision were not barred by laches after 35 years of inaction
  • Whether the trial court erred in ordering the conveyance of the common land to the subdivision association for no consideration and without compensation for out of pocket expenses

Developer created a subdivision, which, in addition to individual building lots, included a separate common parcel intended to be used as open space. A Declaration of Covenants identifying the common parcel and its use restriction was recorded at the registry of deeds and was referenced on the individual building lots the developer subsequently conveyed. Developer was to have turned over the common parcel to a subdivision association, at the latest, by the time 51 percent of the building lots were sold. All of the lots were sold, but the developer and lot owners failed to create an association or to convey the common parcel to the association.

The common parcel was ultimately seized by the town and sold for unpaid taxes. One of the unit owners purchased the common parcel at tax sale. The owner subsequently conveyed his building lot to petitioner, by warranty deed. The owner also conveyed the common parcel to petition, by quitclaim deed, for consideration of only $100. The petitioner retained the common parcel for many years, paying approximately $40,000 for the real estate taxes.

When petitioner sought a building permit to construct a single-family dwelling on the common parcel, other lot owners in the subdivision opposed the application. Petitioner filed suit in the Superior Court for declaratory judgment that the covenants had been wiped out by the tax sale or, alternatively, that the lot owners had to form the association to receive the common parcel and to compensate him for his out-of-pocket costs and the fair market value of the land. The trial court upheld the covenants and ordered the conveyance of the property to the association without any compensation to petitioner. Petitioner appealed.

The Court rejected petitioner’s argument that the tax sale wiped out the covenants because petitioner had notice of the covenants from the recorded declaration. Also, petitioner should have been mindful of the effect of the covenants, given the mere $100 he paid as consideration.

The Court rejected petitioner’s laches argument because, not only did the declaration include a no-waiver clause that protected the other lot owners from inaction, nothing had been done by petitioner or his predecessors that put the lot owners on notice of their need to assert their rights, until petition sought a permit for a single-family dwelling. Until that time, the common parcel had remained unused open space as the covenants had anticipated.

The Court also upheld the trial court’s order requiring conveyance of the common parcel to the association and denying petitioner compensation for the land value or for his out-of-pocket expenses in paying the property taxes. The declaration expressly required the developer and his successors in interest (which petitioner was by virtue of his acquisition of the common parcel) to convey the common parcel to the association and, until such time as the conveyance occurred, to maintain the land at his expense.

David E. LeFevre, Tarbell & Brodich, for the petitioner. Matthew J. Delude, Primmer Piper Eggleston & Cramer, for the respondents.

Renee M. Brooks v. Steven Allen
No. 2015-0255 April 1, 2016

  • Whether the trial court erred in its equitable partitioning of real property as between estranged, unmarried domestic partners

After receiving a notice to quit the shared residential premises, petitioner, the 20-year unmarried domestic partner of the respondent, brought an action in Superior Court for equitable partitioning of two parcels of real property held solely in respondent’s name.

Petitioner alleged that she had contributed to the purchase and maintenance of the properties during the period of the domestic partnership and that, as a matter of equity, she was entitled to a partitioning of the properties. The trial court found that petitioner had contributed to the purchase and maintenance of the properties in question, albeit to a lesser degree than respondent, and awarded petitioner 40 percent of the equity interest in the two properties. Respondent appealed.

Respondent argued that the trial court erred by imposing a “divorce-like” distribution, even though New Hampshire has not applied the divorce statute to dissolution of non-marital domestic relationships.

The Court affirmed the trial court’s partitioning of the properties, noting that petitioner did not seek relief pursuant to any theory of distribution of marital assets upon divorce, but rather under the statutory framework for partitioning real property (RSA 547-C), which statute give the trial court broad equitable powers for partitioning the interests of the parties.

The Court held that there was adequate evidence presented at trial, the credibility of which was property weighed by the trial court, to support the 40-60 partitioning of the properties between petitioner and respondent: petitioner contributed to monthly expenses for maintenance of the households – including taxes, utilities and groceries – over a sustained 20-year period. As such, the result reached by the trial court was held to be supported by the evidence and not erroneous as a matter of law.

Bryan J. Kerman, Methuen, Mass., for the petitioner. Kenneth P. Doherty, Lawrence, Mass., for the respondent.

CBDA Development LLC v. Town of Thornton
No. 2014-0775
April 7, 2016

  • Whether the trial court erred in upholding town planning board’s denial of second site plan application where there was no material change from the first application

Petitioner filed a site plan application with the planning board, seeking approval of a proposed recreational campground. The planning board denied the plan, citing concerns about the long-term leases for sites and requirement for “park model” recreational vehicles that were essentially permanent fixtures requiring professional removal; the planning board further noted that the site plan had no provision for short-term campers without “park model” vehicles. Petitioner filed a second application, which appeared to add some sites for tent and pop-up campers, but the vast majority of the plan still relied on long-term park model use.

The planning board declined to review the second application because it was “substantially the same” as the prior application. Petitioner appealed to the Superior Court, which upheld the planning board’s decision not to hear the second application on reasoning similar to that applied to zoning board appeals under Fisher v. City of Dover (1980). Petitioner appealed.

The Court affirmed the trial court’s reasoning, adopting the so-called Fisher doctrine for successive planning board applications, too: “[W]e agree with the trial court’s observation that the policy rationales underlying our decision in Fisher are as relevant in the planning board context as they are in zoning board appeals.” (Internal quotations omitted.) A new application may be considered by a board if there is a substantial change in the circumstance or conditions relevant to the application.

Applying the Fisher doctrine to petitioner’s second application, the Court agreed with the trial court that the second application did nothing to address the town’s concerns about permanent “park model” units and long-term leases at the proposed campground and, therefore, did not present a substantial change warranting review by the board.

John G. Cronin and Daniel D. Muller, Jr. on the brief, and Mr. Cronin orally, Cronin Bisson & Zalinsky, for the petitioner. Matthew R. Serge, Drummond Woodsum, for the respondent.

Everett Ashton Inc. v. City of Concord
No. 2015-0400
April 29, 2016
Affirmed in part, reversed and vacated in part, remanded

  • Whether the trial court erred in ordering the city to issue demolition permits in spite of the unpaid property taxes
  • Whether the trial court erred in finding that the park owner was not liable for unpaid water bills
  • Whether the trial court erred in finding that the actions of the city constituted a regulatory taking of the park owner’s property
  • Whether the trial court erred in awarding the park owner attorney’s fees

Owner of a mobile home park brought action in Superior Court against the city to compel issuance of demolition permits for removal of three abandoned and valueless manufactured homes, to remove liens against the park property for unpaid water bills of the homeowners, and for determination that city’s withholding of the demolition permits constituted a regulatory taking.

The trial court ordered the issuance of the permits, denied the city’s liens for unpaid water bills and found the withholding of the permits to be a regulatory taking entitling the park owner to compensation for his attorneys’ fees. The city appealed.

The Court affirmed the trial court’s determination that the demolition permits should be issued, even though the manufactured homes were subject to unpaid real property taxes. The Court interpreted the taxation statute, holding that while the statute would allow the city to deny a permit as to the home owner, or would allow the lien for unpaid taxes to be applied to proceeds of any sale of the homes, the statute regarding mobile home taxation specifically prohibited the city from imposing the unpaid tax lien on the park owner.

The Court did not exempt the park owner from the lien for unpaid water bills. Although the statute allowed the park owner to transfer primary responsibility for receipt and payment of the water bills to individual home owners by installing separate water meters, such metering did not relieve the park owner from overall responsibility for water provided to the park property.

Because the Court found that the city’s interpretation of the statute regarding payment of real estate taxes in conjunction with removal of mobile homes was merely a misapplication of an otherwise valid statute, and not an arbitrary or unreasonable restriction intended to deprive the property owner of the use of his land, the Court reversed the trial court’s determination of taking and vacated the attorneys’ fees award.

James J. Bianco Jr. and Thomas P. Colantuono on the brief, and Mr. Bianco Jr. orally, for the park owner. Danielle L. Pacik, deputy city solicitor, for the city. Stephen C. Buckley and Margaret M.L. Byrnes on the brief, for New Hampshire Municipal Association as amicus curiae. Robert M. Shepard and Tanya L. Sponey, Smith-Weiss Shepard, for New Hampshire Community Loan Fund as amicus curiae.

Right to Know Law

Donna M. Green v. School Administrative Unit
No. 2015-0274
April 19, 2016

  • Whether the trial court erred in finding that the School Administrative Unit had discretion as to how to make documents available in response to a records request

Petitioner, a member of a regional school board, requested that respondent provide budget documents pursuant to the Right-to-Know Law, NH RSA 91-A. Respondent answered petitioner’s request by advising her that she could make and appointment to see the documents. Petitioner amended her request, asking for electronic copies of the documents. Respondent did not provide electronic copies and continued to advise that the documents would be made available for petitioner to inspect.

Petitioner filed a complaint in Superior Court alleging that respondent’s refusal to provide electronic copies was a violation of the Right-to-Know Law. The trial court concluded that petitioner was not entitled to electronic copies under the statute, but opined that there “may be a strong policy argument to be made” for such a requirement. Nevertheless, the trial court found that the statute afforded the respondent discretion as to whether to provide the documents electronically. Petitioner appealed.

Engaging in statutory interpretation, the Court determined that both petitioner and respondent provided reasonable interpretations of the statute. As a result of the ambiguity, the Court found that plain meaning alone was insufficient and turned to the legislative history and purpose of the law to aid in the interpretation. Because the purpose of the Right-to-Know Law “is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people,” questions regarding the law are to be resolved “with a view to providing the utmost information in order to best effectuate these statutory and constitutional objectives.” CaremarkPCS Health v. N.H. Dep’t of Admin. Services (2015).

In dicta, the Court observed that most information today is stored electronically and that electronic production of documents is the manner that our current technology suggests as being most in line with the purpose of the Right-to-Know Law.

Richard J. Lehmann, Douglas Leonard & Garvey, for petitioner. Matthew R. Serge and Anna B. Cole on the brief, and Mr. Serge orally, Drummond Woodsum & MacMahon, for respondents.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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