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Bar News - June 21, 2017

Supreme Court At-a-Glance

May 2017

Attorney’s Fees

Harvey J. Garod v. Steiner Law Office
No. 2016-0178
May 17, 2017
Reversed and remanded

  • Obligations of successor counsel in a tort case with respect to fees incurred by the previous attorney
  • Whether an attorney may assert a lien for his fees and costs in the event of recovery

Plaintiff Harvey Garod appealed an order of the NH Superior Court, which had dismissed his conversion action against defendant R. J. Steiner and Steiner Law Office.

The plaintiff and defendant are personal injury attorneys. The plaintiff was retained by a client to pursue a personal injury action. The client worked with the plaintiff for two years, prior to discharging the plaintiff without cause. The client then retained the defendant’s law offices, which filed an action and ultimately settled the action on behalf of the client. The plaintiff’s counsel tried to assert a lien and have his fee paid through intervention in the pending tort case and then through a separate conversion lawsuit. The trial court granted the defendant’s motion to dismiss and held that the plaintiff’s action was barred by the doctrine of collateral estoppel as the issue was addressed in his intervention attempt. This appeal followed.

On appeal, the NH Supreme Court held that the trial court erred in dismissing the plaintiff’s amended complaint. The plaintiff argued four points, including that the trial court erred in finding that his claim is barred by collateral estoppel and invalidating the contractual lien. The Court held that the trial court erred when it concluded that the plaintiff’s contractual lien claim was barred by collateral estoppel.

The Court held that the plaintiff may be entitled to a fee. However, the amount to which the attorney is entitled depends on the reasonable value of the attorney’s services, rather than any different amount specified in the contract.

The Court also held that the lien asserted by the plaintiff may be enforceable, because the defendants were aware that the client had discharged a prior attorney before retaining their services. The Court explained that it is the successor lawyer’s responsibility to explain fully any obligation of the client to pay a previous lawyer. Barring a contract that explicitly states otherwise, the successor assumes the obligation to pay the first lawyer’s fee out of his or her contingent fee. The court observed that the successor lawyer was in the best position to evaluate and to reach an agreement as to a reasonable fee for the value of the work already done on the tort action.

Harvey J. Garod, Law Offices of Harvey J. Garod, of Laconia, for the Petitioner. R. James Steiner, Steiner Law Office, PLLC, of Concord, for the defendants.

Criminal Law

State v. Kyree Rice
No. 2015-0457
May 12, 2017
Reversed and remanded

  • Whether the trial court unsustainably exercised its discretion by declining to instruct the jury that the act of producing or displaying a weapon shall constitute non-deadly force
  • Whether a defendant may introduce evidence of drug use by a victim

The defendant, Kyree Rice, appealed his conviction by jury for one count of attempted murder and two counts of first-degree assault.

The NH Supreme Court identified the following facts as relevant: At about 1:45 a.m. on May 24, 2015, the victim, Curtis Clay and his girlfriend arrived at a crowded Manchester restaurant. The defendant and his brother Raheem, along with this cousin Beverly Pierson and his friend Rudy Vasquez, arrived around the same time and waited outside. At some point the defendant entered the restaurant and approached Raheem, who was having a disagreement with another patron. In response, the defendant pulled up his shirt up to reveal a gun, cocked it, said “you know what time it is,” and exited the restaurant.

Inside, a scuffle ensued between Pierson, Rhaeem, Vasquez, and Clay. Punches were thrown. Hearing the commotion, the defendant ran inside. He observed Clay throw Vasquez, a large man, to the ground. He observed Clay turn to Raheem. The defendant attempted to intervene but Clay grabbed his arm. In response, the defendant removed the gun from his waistband.

A witness for the state testified that the defendant jammed the gun into Clay’s belly. The defendant testified that he pulled it out because he thought if Clay saw the gun he would stop. Clay knocked the defendant into a booth and the fight continued between Raheem and Clay. Next, the defendant emerged from the booth and observed Clay straddling and punching Rhaeem. The defendant then shot Clay twice.

The defendant testified the first shot was a warning shot and he did not believe it hit Clay and that he fired the second shot because Clay was continuing to hit Raheem. He said he had fired the gun because he believed it was necessary to prevent Clay from killing his brother. At the hospital, Clay testified positive for alcohol, cocaine, and cannabis. The defendant was convicted by jury for one count of attempted murder and two counts of first-degree assault. This appeal followed.

On appeal, the defendant argued that the trial court erred by failing to instruct the jury on the principle that the act of producing or displaying a weapon shall constitute non-deadly force. He also argued the trial court erred by failing to allow the defendant to introduce evidence related to Clay’s marijuana, cocaine, and alcohol use. The verdict was reviewed under the abuse of discretion standard.

The NH Supreme Court agreed with the trial court that the ultimate issue for the jury was whether, at the time he shot Clay, the defendant was justified in using deadly force. Explaining that a jury must resolve a host of subsidiary issues in the course of deciding that ultimate question, the Court held that the trial judge must instruct the jury on all rules of law applicable to the case, not just the ultimate issue.

The Court noted that the jury undoubtedly focused on the reasonableness of the defendant’s (and Clay’s) course of conduct throughout their encounter. The Court held that without an instruction on the use of non-deadly force, there was a significant risk that the jury would misunderstand the legal implications of the defendant’s conduct.

The Court affirmed the trial court’s ruling that the defendant may not introduce evidence relating to Clay’s marijuana, cocaine, and alcohol use for any purpose. In its decision, the Court noted that the expert testimony offered in support was not sufficient. The defendant attempted to argue that that the effects of cocaine, alcohol, and marijuana on perception and memory are common knowledge, but the Court disagreed.

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

Family Law

Petition of Eric Eilleke and Regina Willeke
No. 2016-0079
May 12, 2017

  • Where there is a common law right in New Hampshire for great-grandparents, including step-great-grandparents, to seek visitation with respect to their great-grandchildren

Petitioners were Regina Willeke, the maternal great-grandmother of the now 5-year-old child, and Eric Willeke, the child’s maternal step-great-grandfather.

The petitioners alleged that they served as guardians of the child until Nov. 12, 2015, despite seeking great-grandparent visitation rights on Sept. 22, 2015. The child’s father, Tyler Wyman, responded to the petition and argued that New Hampshire law does not confer on great-grandparents the right to seek visitation. The trial court considered this response to be a motion to dismiss to which the petitioners objected. In their objection, the petitioners made two arguments: 1) that they have a common-law right to seek visitation with the child; and 2) RSA 461-A:13 should be interpreted as conferring upon great-grandparents standing to petition for visitation. The court granted the motion to dismiss and concluded that RSA 461-A:13 is not ambiguous and affords rights to grandparents only.

On appeal, the petitioners argue that they have a common law claim, independent of RSA 461-A:13, to request that the trial court exercise it parens partiae power to grant them visitation. The petitioners did not argue that the trial court erred in its statutory interpretation. Therefore, the NH Supreme Court only analyzed the claim under common law.

The Court reviewed the matter de novo. The court analyzed whether the RSA 461-A:13 or the preceding versions of the statute abrogated the common law right to petition for visitation. In its analysis, the Court stated that generally, a statute will not be construed as abrogating the common law, absent the statute clearly expressing such an intention. However, the Court noted that when a statute revises the entire subject of a common law cause of action and is clearly designed as a substitute, the common law is abrogated, even without express terms of abrogation.

The Court concluded that courts’ rights to use their parents patraie power to permit visitation was abrogated by the 1989, and 1991 statutory revisions and this abrogation of common law was preserved in the 2005 enactment of RSA 461-A:6, V and RSA 461-A:13. The Court affirmed the holding of the trial court.

Under New Hampshire law, a trial court may not use its parens patriae power as a basis to order visitation. Therefore, great-grandparents lack standing to petition the court for visitation. Affirmed.

Joseph S. Hoppock, Law Offices of Joseph S. Hoppock, PLLC, of Keene, for the Petitioners. Samantha Pelc, pro se, no brief. Tyler Wyman, pro se, no brief.

In the Matter of Nicholas Kelly and Astrid Fernandes-Prabhu
No. 2016-0243
May 26, 2017
Reversed in part; vacated in part; and remanded

  • Whether a trial court may modify the a parenting plan, including a parenting schedule and decision-making responsibility, under RSA 461-A:11 when the parties disagree about the terms of modification

The respondent mother, Astrid Fernandes-Prabhu, appeals a NH Circuit Court order granting a motion by the petitioner father, Nicholas Kelly, to modify the parties’ parenting plan.

The NH Supreme Court explained the facts as follows: The parties are parents of a 3-year-old boy. In January 2015, a final parenting plan was issued. The final plan awarded sole decision-making responsibility and primary residential responsibility to the mother. The father received some parenting time pursuant to a schedule. In September of that year, the father moved for a modification of the final parenting plan and sought at least 50 percent parenting time and at least joint decision-making responsibility. The mother objected and cross-moved for a different modification.

The trial court issued an order indicating that a modification of the parenting plan may be in order but that the court was not in a position to do so. In March 2016, the trial court issued an order modifying the parenting plan. The father was awarded joint decision-making responsibility and his routine parenting time was expanded. In the order, the court stated its authority to modify the parenting plan arose because “the parties have agreed that the current Parenting Plan is not working, but are unable to come up with one on their own.”

The mother moved for a motion for reconsideration and argued that the trial court did not have the authority to modify the parenting plan. The trial court denied the motion without issuing a narrative order. This appeal followed.

The NH Supreme Court reviewed the trial court order de novo, to the extent that statutory interpretation is required, and otherwise reviewed the order under the standard of abuse of discretion.

The Court analyzed the applicable statutes and held that the statute permits a court to modify a parenting plan only when the parties agree to specific modification terms. Here, the Court held that the parties disagreed about specific modification terms, and the trial court did not have authority to modify the parenting plan. Additionally, the Court concluded that the trial court record contains insufficient findings to permit a determination of whether the plan was properly modified and vacated the parenting schedule modification from April 2016 and remanded the matter to the trial court.

The Court analyzed the trial court’s modification of the joint decision-making responsibility. The Court held that the trial court failed to provide a detailed explanation in support of its decision that joint-decision making responsibility was in the child’s best interest and therefore vacated the parenting plan modification. The Court remanded the issue of joint decision-making to the trial court, holding that the moving party bears the burden of proof in requests to modify decision-making responsibility. The Court also held that there is no presumption that joint decision-making responsibility is in the best interest of minor children in this context.

Andrew J. Piela, Hamblett & Kerrigan, P.A., of Nashua, for the Petitioner. Daniel R. Krislov, Law Office of Peggy L. Small, of Nashua, for the Respondent.

Property Law

Robert Carr & a v. New London
No. 2016-0350
May 17, 2017

  • Whether RSA 76:21 precludes application of RSA767:16 for fire-related building loss in determining whether a petitioner is entitled a tax abatement

The Town of New London appealed a NH Superior Court order that granted summary judgment to petitioners Carr and Raoul & Karen LLC, in their appeal of the town’s denial of their request for a property tax abatement under RSA 76:16.

The NH Supreme Court explained the facts as follows: Carr owned the property at issue in this case (“Property”) from April 1, 2014 to Dec. 20, 2014, when he sold it to Raoul & Karen. On July 1, 2014, the house on the property was struck by lightning and burned to the ground. A few outbuildings remained. The petitioners could not use the house for 272 of the 365 days of the 2014 tax year. The town assessed the house at $688,000 for that tax year.

One year earlier, RSA 76:21 took effect. The statute provided for tax proration when a building is not usable due to an unintended fire or natural disaster. The statute required that a person aggrieved shall file an application with the assessing officials within 60 days of the qualifying event. Here, the petitioners did not apply for a proration of their property tax under RSA 76:21.

The petitioners instead petitioned the town for a tax abatement under RSA 76:16 about six months after the fire. That statute provides that selectmen or assessors, for good cause shown, may abate any tax, including prior years’ taxes, assed by them or their predecessors. The town denied the petition as untimely under RSA 76:21. The petitioners then appealed the decision to the Superior Court pursuant to RSA 76:17 and both parties moved for summary judgment. The trial court found in favor of the petitioners and this appeal followed.

On appeal, the town submitted five arguments including, most notably, that properties are assessed on April 1 and no subsequent event may result in an abatement of the assessment, and that RSA 76:21 forecloses relief under RSA 76:16.

The NH Supreme Court reviewed this matter de novo as the outcome hinged on statutory interpretation. The Court rejected the town’s argument with respect to the April 1 assessment date and cited past practice and application of RSA 76:21. The Court agreed with the trial court’s observation that RSA 76:16 does not confine the petitioners to a 60-day window following the destruction of their property and provides a more expansive means of procuring relief, while RSA 76:21 offers a streamlined recovery process and a mandatory prorated calculation.

Jay L. Hodes, Hage Hodes, Professional Association, of Manchester (Jay L. Hodges and Katherine E. Hedges on the brief) for the Petitioner. Barton L. Mayer, Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Michael P. Courtney the brief), for the Respondent.

DIRECTV v. New Hampton
No. 2016-0151
May 26, 2017
Reversed in part; vacated in part; and remanded

  • Whether antennas and batteries are fixtures and therefore taxable as real estate

The plaintiff, DirecTV Inc. appeals the decision of the NH Superior Court denying a petition for property tax abatement for three separate tax years. The property at issue is located in New Hampton and used by the plaintiff as a satellite uplink facility.

The NH Supreme Court explained the facts as follows. In 2005, DirecTV purchased the 21-acre property at issue, which contained a 46,000 square-foot building. DirecTV intended to use the property as an uplink facility to transmit television content to its satellites, which would in turn transmit that content to customers’ receivers. DirecTV selected the property because of its geographic location in the Northeast.

At the time of the litigation, about one-third of the building was used for DirecTV’s satellite operations, while two-thirds was used as a warehouse. This appeal concerns two types of specialized equipment used at the property, satellite antennas and batteries. The parties’ dispute turned on the nature of the two items. The Court detailed the installation and characteristics of these items in its opinion.

Initially, DirecTV filed a request for tax abatement with the Town of New Hampton, which was denied. Next, DirecTV filed a petition for tax abatement in the trial court. The trial court bifurcated the case and first held hearings as to whether the equipment was taxable as real estate and then moved to a valuation phase. This appeal followed.

The Court reviewed this issue de novo and accepted the trial court’s findings of fact as supported by evidence in the record. As a preliminary matter, the Court noted that generally, taxes cannot be assessed and collected except by authority of the legislature. The Court also noted that the inquiry into a definition of a fixture is a mixture of law and fact.

The Court explained that its determination turned on several factors, including: 1) the item’s nature and use; 2) the intent of the party making the annexation; 3) the degree and extent to which the item is specially adapted to the realty; 4) the degree and extent of the item’s annexation to the realty; and 5) the relationship between the realty’s owner and the person claiming the item.

The Court agreed with DirecTV’s argument on appeal and explained that the focus must be on the real property itself, buildings or land, and not the business operations. The Court applied the five-factor test described above and concluded that the antennas and batteries at issue in this case are not taxable. The Court remanded the matter because the antennas and batteries were assessed as a part of the valuation for abatement purposes, which was not allowed under New Hampshire law.

Margaret H. Nelson, Sulloway & Hollis, PLLC, of Concord, (Margaret H. Nelson and Jay Surdukowski on the brief) for the plaintiff. Judith E. Whitelaw, Mitchell Municipal Group, P.A., of Laconia (Judith E. Whitelaw and Walter L. Mitchell on the brief), for the defendant. Joshua L. Gordon, Law Office of Joshua L. Gordon, of Concord, amicus curiae New Hampshire Association of Broadcasters. Daniel E. Will, Devine, Millimet & Branch PA, of Manchester, amicus curiae Satellite Broadcasting & Communications Association.

Fat Bullies Farm v. Lori Devenport & a
No. 2015-0692
May 26, 2017
Affirmed in part; reversed in part; and remanded

  • Whether the Consumer Protection Act applies to property transactions
  • Whether there is bad faith sufficient to support an award of attorneys’ fees and costs

This litigation commenced as four separately filed actions consolidated by the trial court concerning Runnymeade Farm, a horse farm in North Hampton. The plaintiff, Fat Bullies Farm, LLC, was created by two individuals – Simmons, a real estate investor, and Gould, a retired Massachusetts attorney – for the purpose of buying the farm. The defendants, the Devenports, purchased the farm in 1998 and owned it at the time of the creation of Fat Bullies. At the time of purchase, the Devenports made promises, including to operate it as a horse farm in perpetuity.

The trial court record revealed that the Devenports discussed selling the farm to Simmons and stated they would only sell if the buyer agreed to the same promises, including to continue operating the property as a horse farm.

Simmons and Gould created Fat Bullies to purchase the farm as an investment. Simmons made a number of untrue oral representations to the Devenports about his intent to operate the farm as a farm, including that he could see his grandchildren there and that he intended to raise specific animals. Simmons did not disclose the relationship between Simmons and Gould and did not recommend that the Devenports consult an attorney. He also attempted to change the agreed-upon oral price.

Fat Bullies Farm and the Devenports entered into a very short written agreement, which did not mention the oral promises restricting use or specify a method of payment. Shortly before expiration, the Devenports learned through word of mouth that Simmons did not intend to operate the farm as a horse farm. The Devenports sent Simmons a letter stating that they decided not to sell the farm, because their children were still in school. The motivation for the letter was based on the belief that Simmons had lied about his intent with the farm.

Simmons made two threats to the Devenports, one that he would “own the Farm within 24 hours” and a second one, after the Devenports had sold the farm to a third party (defendant Perkinses) that, “I will take you to court and it will cost you thousands of dollars and it will not cost me anything.”

The trial court entered a finding of a violation of the Consumer Protection Act (CPA) and awarded damages as a result. The trial court dismissed the tortious interference claim against the Perkinses and awarded them attorneys’ fees around $200,000. This appeal followed.

The NH Supreme Court disagreed with the trial court that Fat Bullies and Simmons violated the CPA. The Court identified the “rascality test” used in New Hampshire. Specifically, that the conduct objectively “must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce.” The Court stated that the CPA was very rarely used in the context of real estate and only once analyzed regarding particular acts incidental to the sale of real estate. The Court held that although a course of conduct may violate the CPA, in this instance, it did not.

The Court affirmed the award of summary judgment in favor of the Perkinses because Fat Bullies failed to present evidence of a genuine issue of material fact. The Court reversed the determination that the Simmons and Gould were personally liable for the Perkinses’ attorneys’ fees and costs around $200,000. The Court held that there was no specific finding of bad faith, and that the Court could not conclude that the tortious interference claims were patently unreasonable.

Charles G. Douglas, III, Douglas, Leonard & Garvey, PC, of Concord for the plaintiff and counterclaim defendants. Christopher H.M. Carter, Hinckley, Allen & Snyder, LLP, of Concord, (Christopher H.M. Carter and Daniel M. Deschenes on the brief), for the defendants.

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