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Bar News - July 19, 2017


Supreme Court At-a-Glance

By:

June 2017

Civil Procedure

State of New Hampshire v. Actavis Pharma, Inc. & a.
No. 2016-0199
June 30, 2017
Reversed and remanded

  • Whether the defendants had standing to challenge as ultra vires a contingency fee agreement the Office of the Attorney General executed for outside counsel in a Consumer Protection investigation
  • Whether said contingency fee agreement violated certain ethics, common law, or constitutional rules

This case centers on a contingency fee agreement the Office of the Attorney General (AG) entered into with outside counsel. In the agreement, outside counsel agreed to assist the AG in an investigation and litigation of potential claims against the defendants, pharmaceutical companies, regarding alleged fraudulent marketing of opioid drugs in violation of the Consumer Protection Act (CPA). The defendants refused to comply with subpoenas issued to them pursuant to the AG’s investigation, citing their objection to the AG’s retention of outside counsel to assist in the investigation on a contingency fee basis.

The trial court denied the State’s motion to enforce the subpoenas and granted the defendants’ motion for a protective order with respect thereto. In its order, the trial court determined that defendants had standing to bring their claims concerning the contingency fee agreement. The trial court further determined that by executing the contingency fee agreement without the approval of joint legislative fiscal committee and the governor and council, and contrary to RSA 7:12 and :6-f, the AG acted ultra vires in hiring and compensating outside counsel. Upon making its determination, the trial court rejected the additional arguments that the defendants proffered based on ethics, common law, and due process.

The State appealed the trial court’s finding that the defendants had standing to make an ultra vires challenge to a government contract. According to the State, the defendants failed to make the requisite showing of actual harm. The State further argued that even if the defendants’ speculative risk amounted to a cognizable harm, the defendants did not demonstrate that the harm was linked to the challenged conduct, which was, among other things, the AG’s failure to seek approval for entering the contingency fee agreement. The defendants asserted standing on the grounds that the contingency fee agreement adversely tainted the investigation because the State’s investigation was inherently biased by outside counsel’s conflict of interest. The defendants contended that this injury was personal to them as the direct targets of subpoenas issued in an investigation that exceeded an executive agency’s authority.

The NH Supreme Court disagreed with the defendants, reversing the trial court order. The Court concluded that the defendants did not have standing with respect to their claims that the contingency fee agreement was ultra vires under RSA 7:12, I and :6-f. The Court reasoned that the bias claimed by the defendants was unrelated to the alleged statutory violations. The Court noted the defendants conceded that even if the contingency fee agreement had been ratified by the joint legislative fiscal committee and the Governor and Council pursuant to RSA 7:12, their injury would still not be alleviated. Similarly, because any potential CPA claim relative to this case was only speculative, there was no actual or imminent violation of RSA 7:6-f, which requires the AG to deposit into a consumer protection escrow account funds received from a settlement or judgment pursuant to a CPA claim. Accordingly, the defendants had not established an actual, as opposed to hypothetical, dispute capable of judicial redress. In so holding, the Court also ruled that principles of standing do not just apply to a plaintiff’s ability to initiate a lawsuit; standing also applies to defendants who raise affirmative defenses and seek the court’s jurisdiction to hear claims and obtain relief thereon, as in this case.

The Court further rejected the defendants’ cross-appeal of the trial court’s finding that the fee agreement violated the Executive Branch Code of Ethics (Ethics Code). After requesting that the parties write additional memoranda to address whether the Ethics Code provides a private right of action, the Court found that there was nothing in the Ethics Code indicating that the legislature intended to create a private right of action for its violation. The Court also concluded that the contingency fee agreement did not violate longstanding New Hampshire common law and ethics rules because outside counsel had no authority to make key administration decisions and lacked the authority to represent the State as a substitute for the AG. Moreover, because the agreement provided that the AG retained ultimate control over the investigation, it did not violate due process principles.

Joseph A. Foster, attorney general (Lisa M. English, senior assistant attorney general on the brief and orally, and Francis C. Fredericks, assistant attorney general, on the brief), for the State. Numerous attorneys and law practices for the multiple defendants. Further details about the parties and their representatives can be found in the Court’s full opinion.


Contracts - Insurance

Exeter Hospital, Inc. v. Steadfast Insurance Co.
No. 2015-0624
June 22, 2017
Reversed and remanded

  • The interpretation of an umbrella insurance policy for health care professional liability coverage

In this declaratory judgment action, the petitioner appealed a trial court order denying its motion for partial summary judgment as to the amount at which insurance coverage is triggered under an umbrella policy the respondent issued to the petitioner for health care professional liability coverage. The policy at issue provided that the respondent would pay the petitioner’s “damages that are in excess of the Retained Limit [of $100,000] or that are in excess of the applicable underlying limit, whichever is greater.”

The respondent contended that it was obligated to pay damages only in excess of $100,000 for each medical incident once the petitioner’s underlying insurance coverage was exhausted. According to the respondent, once the petitioner’s underlying coverage is exhausted, that amount is equal to $0. The Retained Limit of $100,000 is “greater” than $0, and therefore the Retained Limit determines the damages the respondent is obligated to reimburse pursuant to the policy language. The petitioner argued that the policy language made it responsible either for the amount of the underlying coverage, which was $4 million in this case, or the Retained Limit of $100,000, but not both amounts. Because the underlying coverage is “greater” than the Retained Limit, the respondent is obligated to pay all damages over $4 million.

After providing a very detailed consideration of each party’s interpretation of the policy language, the Court concluded that the policy was subject to more than one reasonable interpretation. Where one of such reasonable interpretations of the policy provides coverage, the Court construes the ambiguity in favor of the party seeking coverage. The Court, therefore, reversed the trial court’s denial of the petitioner’s summary judgment motion, and remanded the case accordingly.

Justice Robert Lynn authored a special concurrence whereby he arrived at the same conclusion with different reasoning. Anyone interested in issues associated with umbrella insurance coverage for professional liability in health care should read the majority opinion and special concurrence for a comprehensive examination of pertinent policy language.

James Q. Shirley (on the brief and orally) and Jason D. Gregoire (on the brief) of Sheehan Phinney Bass & Green, for the petitioner. Joy L. Langford (on the brief and orally) and Samantha Miller (on the brief) of Chadbourne & Parke, and Jeremy T. Walker and Nicholas F. Casolaro (on the brief) of McLane Middleton, for the respondent.


Criminal Law and Procedure

In re Search Warrant for Records from AT&T
No. 2016-0187
June 9, 2017
Reversed

  • Whether the circuit court has authority to issue a search warrant for records held out of state

This case involves an issue of first impression, whereby a circuit court ruled that it lacked authority to issue a search warrant for records held by a foreign corporation. Notwithstanding contrary dicta found in a prior opinion, the Court in this case reversed the circuit court’s ruling, and held that the circuit court would not have exceeded its territorial jurisdiction by issuing a search warrant authorizing the search and seizure of an electronic communication service provider’s records in Florida.

The Court explained that the issuance of extraterritorial search warrants is not expressly prohibited by the legislature, and the Appellate Defender Program, which challenged the search warrant, did not identify any constitutional limitations applicable to the facts of this case. Florida law, moreover, expressly requires certain businesses, such as the electronic communication servicer in this case, to respond to a warrant issued by another state.

In reversing the circuit court’s decision, the Court was careful to limit its holding to the facts of the case, and to the issue of whether the circuit court would have exceeded its territorial jurisdiction.

Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general), for the State. Christopher M. Johnson, chief appellate defender, for the New Hampshire Appellate Defender Program as amicus curiae.


State v. Cora
No. 2016-0145
June 27, 2017
Reversed and remanded

  • Whether the police violated Part I, Article 19 of the New Hampshire Constitution when they entered the defendant’s vehicle to seize drugs they observed from outside of the vehicle during a lawful vehicle stop
  • Whether to recognize formally the federal automobile exception to the warrant requirement

In this case, the State appealed a trial court order to suppress evidence obtained from the warrantless entry by the police into the defendant’s vehicle. In its appeal, the State asked the Court to overrule a previous decision and adopt the federal automobile exception to the warrant requirement that would allow the search in this instance. Alternatively, the State asked the Court to recognize a narrower exception to the warrant requirement based on the defendant’s diminished expectation of privacy in the publicly visible areas of his car.

The Court previously refused to recognize the federal automobile exception in State v. Sterndale (1995), and declined to overrule that determination in this case. The Court, however, did recognize a limited automobile exception to the warrant requirement pursuant to which the police do not need to obtain a warrant to enter an automobile when: (1) the vehicle has been stopped in transit pursuant to a lawful stop; and (2) the police have probable cause to believe that a plainly visible item in the vehicle is contraband. Accordingly, the Court reversed the trial court’s ruling to suppress evidence, holding that the police did not need a warrant before entering the defendant’s vehicle because the vehicle was subject to a lawful traffic stop, and the police had probable cause to believe that the plainly visible baggie and cigarette were drugs.

The Court reasoned that Sterndale had been partially abrogated by its opinion in State v. Goss (2003), whereby the Court adopted a reasonable expectation of privacy analysis under Part I, Article 19 of the New Hampshire Constitution. Since Goss, the Court has examined whether a defendant has a reasonable expectation of privacy in the area to be searched to determine whether a warrantless search complies with the New Hampshire Constitution. The Court recognized that there is generally a diminished expectation of privacy in automobiles, which is derived from an automobile’s continual exposure to public scrutiny. The Court, however, declined to recognize the more comprehensive federal automobile exception, which the Court found too broad. According to the Court, there can be a reasonable expectation of privacy in certain areas of the interior of an automobile. The Court explained that the recognition of a limited automobile exception to the warrant requirement presents an appropriate balance between the need of law enforcement to search, and the invasion that the search entails.

Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general), for the State. Christine C. List, assistant appellate defender, for the defendant.


State v. DePaula
No. 2015-0484
June 22, 2017
Affirmed in part and vacated in part

  • Whether the trial court erred when it ruled that the defendant’s testimony opened the door to evidence of the defendant’s alleged involvement in an unrelated homicide
  • Whether the trial court erred when it allowed the State to introduce testimony regarding physical and sexual assaults that occurred during the crime at issue in this case
  • Whether the trial court erred when it allowed the State to introduce lay testimony from custodians of cellular telephone records regarding the range of cell towers
  • Whether the trial court erred when it sentenced the defendant on two conspiracy convictions for two events related to a single overall plan

The defendant appealed his convictions on one count of burglary, five counts of theft by unauthorized taking, and two counts of conspiracy to commit theft by unauthorized taking. The defendant’s convictions arose from a home invasion committed with other co-conspirators. The Supreme Court upheld all of the defendant’s convictions with the exception of one conspiracy conviction, which the Court vacated because it was, in essence, duplicative.

In appealing his convictions, the defendant argued that the trial court erred in ruling that he opened the door to evidence of his involvement in an unrelated homicide. The Court, however, agreed with the trial court’s ruling that the doctrine of “specific contradiction” applied in this case, which allowed the jury to hear the additional evidence in dispute.

Specifically, the defendant testified that a trip he took with the co-conspirators to the victim’s residence prior to the home invasion was for the purpose of buying a gun. The defendant claimed he did not know that the co-conspirators made the trip for the purpose of “casing” the residence for a future home invasion. The trial court found, and the Supreme Court agreed, that evidence related to the defendant’s commission of another home invasion and murder, about which he bragged, along with the same co-conspirators only hours after the “casing” trip to the victim’s home specifically contradicted the implication the defendant created with his testimony that he would not have travelled to the victim’s home had he known the true purpose of the trip. The defendant’s testimony relative to his innocence beliefs about the “casing” trip had opened the door to allow the State to show that the defendant was not innocent with respect to the plan to engage in home invasions. The Court found this evidence highly probative, and any risk of undue prejudice was significantly reduced by the trial court’s limiting instruction.

The defendant also argued that the probative value of the evidence related to sexual and physical assaults that occurred during the home invasion was substantially outweighed by the danger of unfair prejudice because of the heinous and extreme details of the assaults. The Court, however, agreed with the trial court’s ruling that the evidence relating to the assaults was relevant to the identities of the individuals who participated in the conspiracy with the defendant. In particular, because one of the co-conspirators carved the beginning of his initials into one of the victim’s backs, the testimony about the physical assault was probative of identity of the co-conspirator. Similarly, the fact that the other co-conspirator repeatedly sneezed in the bathroom containing a cat litter box connects the particular conspirator, who was allergic to cats, to the conspiracy and burglary. Moreover, the assaults were contemporaneous to, and inextricably intertwined with, the home invasion, the full details of which allowed the jury to evaluate realistically all of the evidence in the case. The Supreme Court agreed with the trial court’s finding that such evidence was highly probative, and that it presented less danger of unfair prejudice to the defendant, particularly because there was no evidence that the defendant witnessed or knew of either of the assaults.

The defendant further contended that evidence the State presented concerning cell phone tower operation, including tower range and selection preferences, required expert testimony, which the records custodians the State proffered at the trial were unqualified to provide. In deciding an issue of first impression, the Court held that given their specialized training and experience in interpreting cell phone records, the records custodians could testify as lay witnesses. The custodians possessed sufficient personal knowledge to discuss generally the means by which cell phones connect to the closest cell tower and the general ranges of cell towers. The Court agreed with the trial court’s conclusion that the ubiquity of cell phones and cell towers in society allows the average juror to understand the elementary concepts underlying the interactions between cell phones and cell towers discussed by the custodians. Accordingly, the trial court did not unsustainably exercise its discretion in admitting the records custodians’ testimony regarding the cell towers.

The State conceded to the defendant’s final argument that, under the facts of this case, it was plain error for the trial court to sentence the defendant on two conspiracy convictions. The first conspiracy indictment focused on a first reconnaissance trip the defendant and his companions made to the victim’s house, and the second conspiracy conviction focused on a second reconnaissance trip. The evidence established that there was only a single conspiracy to commit the home invasion, and the two reconnaissance trips were part of the single plan. Accordingly, the Court vacated the defendant’s conviction on one of the conspiracy indictments.

Justice Conboy wrote a separate opinion, joined by Judge Bassett, in which she concurred in part and dissented in part. Judge Conboy disagreed with the majority’s conclusion that the defendant’s testimony about the reconnaissance visit opened the door to evidence that he was involved in an unrelated homicide. According to Judge Conboy, evidence that the defendant participated in a subsequent homicide with the co-conspirators did not specifically contradict any misleading impression created by the defendant’s testimony regarding his belief that the “casing” trip was for the purpose of buying a gun. There was also no evidence that the two crimes were part of a common plan or scheme. According to Judge Conboy, the defendant’s purported participation in homicide, and his knowledge of the purpose of the reconnaissance trip were not closely connected by logically significant factors. Evidence of an unrelated homicide was not harmless error, and for these reasons, Judge Conboy would have reversed the defendant’s convictions and remanded the case for a new trial.

Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general), for the State. Christopher M. Johnson, chief appellate defender, for the defendant.


State v. Robinson
Nos. 2013-0480, 2013-0635, & 2015-0429
June 2, 2017
Affirmed

  • Whether the State is barred from using on remand an argument that it originally raised in the trial court but did not otherwise pursue on the defendant’s appeal
  • Whether defendant’s trial counsel was ineffective because she did not argue that the doctrines of the law of the case and waiver barred the State from raising a certain argument in the trial court following remand
  • Whether the trial court erred in not excluding from trial certain inculpatory evidence

The defendant in this case was originally convicted of armed robbery and first-degree assault. The Supreme Court reversed the defendant’s initial conviction, holding that the trial court erred in concluding exigent circumstances permitted the warrantless entry by police into the defendant’s apartment (Robinson I). On remand, the trial court found that certain physical evidence was properly seized pursuant to the independent source doctrine because it stemmed from a valid search warrant that was procured subsequent to the initial warrantless entry.

The defendant was again convicted after the second trial. The Court upheld his conviction in the present case, holding that the trial court did not err in considering the independent source doctrine on remand, nor in otherwise admitting the physical evidence at issue. The Court also rejected the defendant’s ineffective assistance of counsel claims that were based on counsel’s failure to argue that the State was barred from raising the independent source doctrine.

On appeal, the defendant first argued that the law of the case doctrine barred the State from asserting the independent source doctrine in the trial court following remand because the State did not address the independent source doctrine in its appeal brief filed in Robinson I (although the State did raise the issue in the original trial). The Court, however, found that the defendant argued the issue of exigent circumstances in Robinson I, and not the applicability of the independent source doctrine. According to the Court, points of law that are not reached and decided in a first appeal remain open on remand and on a second appeal. Because the independent source doctrine was not reached and decided on the first appeal, the State could argue it on remand.

The Court similarly rejected the defendant’s argument that waiver barred the State from raising the independent source rule on remand. The Court ruled that waiver depends on whether a party had sufficient incentive to raise an issue in prior proceedings. Given that the issue raised in the first appeal involved exigent circumstances, the Court found that the State did not have incentive to address in its responsive brief the independent source doctrine previously argued in the trial court. The State, therefore, had not waived the right to argue the independent source doctrine.

The Court further held that because the trial court did not err in allowing the State to argue the independent source doctrine, the trial court similarly did not err in finding that defense counsel was not ineffective by failing to raise the issues of law of the case and waiver with respect to the independent source doctrine.

The Court also declined to accept the defendant’s proposal to require the process of applying for a warrant to have begun at the time of an unconstitutional search in order for the independent source doctrine to apply. According to the Court, the requirement that a subsequent lawful seizure pursuant to a warrant be genuinely independent of an earlier unlawful seizure assures the suppression of the results of the later seizure when the decision to seek the warrant was prompted by what was seen during the initial unlawful entry. Moreover, the Court found that the record, even when construed most favorably to the defendant, established probable cause to issue a search warrant for the defendant’s apartment, and any erroneous admission of evidence was harmless error.

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State. Thomas Barnard, senior assistant appellate defender, for the defendant.


State v. Starr
No. 2015-0683
June 9, 2017
Affirmed

  • Whether RSA 631:1, I(d), First Degree Assault, criminalizes knowing or reckless omissions that result in serious bodily injury to a person under 13 years of age
  • Whether the same statute must explicitly set forth any duty that, if breached by a failure to act, gives rise to criminal liability

The defendant was convicted of second degree assault as a lesser included offense of first degree assault, RSA 631:1(d), for failing to provide proper nutrition, and other acts of neglect, with respect a child under the age of thirteen who was in her care. The defendant moved to dismiss her indictment thereon, arguing that the statute did not result in criminal liability for omissions.

The Court affirmed the trial court’s denial of the defendant’s motion to dismiss, and found that it was a matter of fundamental criminal law that criminal liability is based on both acts and omissions. Further, nothing in the statutory definition of assault requires that the causal action be an affirmative action rather than an omission. According to the Court, the plain and ordinary meaning of the statute, interpreted in the context of the overall statutory scheme, criminalizes both acts and omissions that cause serious bodily injury to a person under 13 years of age. The Court also found that the existence of other statutes that specifically criminalize omissions does not invalidate a criminal omission under RSA 631:1(d) just because the latter statute does not specifically criminalize omissions thereunder. Indeed, an act or omission may violate more than one criminal statute.

The Court also ruled, as a matter of first impression, that in order for a statute to criminalize omissions, it need not explicitly set forth a duty of care that, when breached by a failure to act, gives rise to criminal liability. And, the defendant’s admission that she owed the victim a duty of care in this case was sufficient to affirm the conviction under the statute.

Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general), for the State. Kristen B. Wilson of DeMoura|Smith for the defendant.


State v. Widi
No. 2015-0578
June 22, 2017
Affirmed

  • Whether a trial court may deny a defendant’s petition for a writ of coram nobis without holding an evidentiary hearing

The defendant filed a petition for a writ of coram nobis in the trial court. In the petition, the defendant asserted that his misdemeanor conviction to which he pled in 2004 was erroneously misclassified as a felony. He also asserted that his plea was not knowingly and intelligently entered, and that he received ineffective assistance of counsel in his case. The defendant requested that the trial court correct the record or schedule an evidentiary hearing. The trial court denied the defendant’s petition without holding an evidentiary hearing, reasoning that the defendant’s petition was simply a reiteration of arguments that the court had already considered and dismissed. The trial court also observed that the record refuted the defendant’s claims of error.

The Supreme Court affirmed the trial court’s denial of the petition, holding that a trial court may deny a petition for a writ of coram nobis without holding an evidentiary hearing if the record clearly demonstrates that the defendant is not entitled to coram nobis relief. As the Court recently articulated in the Santamaria case, the threshold requirement for relief under this writ is that sound reasons must exist for the defendant’s failure to seek earlier relief.

In this case, the Court found that the record clearly demonstrated no sound reason existed. With respect to all of the defendant’s claims, the Court found dispositive the defendant’s significant delay in seeking relief. The defendant claimed he did not discover the error until 2008, yet he did not file the current petition until 2014. The Court also observed that the defendant’s current claim pursuant to the writ of coram nobis did not materially differ from a prior claim he raised in a motion to correct the record in 2012, which the trial court dismissed. And, even if the defendant’s current claim could be distinguished from the prior claim, the defendant did not explain why he delayed for two years thereafter to file the current petition for a writ of coram nobis. Accordingly, the defendant was not entitled to an evidentiary hearing on his petition.

Joseph A. Foster, attorney general (Kenneth A. Sansone, assistant attorney general), for the State. David M. Rothstein, deputy director public defender, for the defendant.


Disability Law

Petition of Wayne Sawyer
No. 2015-0748
June 30, 2017
Reversed

  • Whether the petitioner had a right to change his area agency affiliation for developmental disability services

The petitioner in this case receives state administered developmental and mental health services. When he was conditionally discharged from the Secure Psychiatric Unit of the New Hampshire State Prison in Concord to the Designated Receiving Facility in Laconia (Laconia DRF), he requested that his area agency affiliation for developmental services be changed to the respondent, Lakes Region Community Services (LRCS), the area agency serving Laconia. The LRCS denied his request, concluding that the petitioner’s relocation was not a conditional discharge or voluntary transfer. According to the LRCS, notwithstanding the petitioner’s physical transfer, he still remained involuntarily institutionalized in Concord pursuant to the state mental health system. The petitioner unsuccessfully appealed the LRCS determination to the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services.

The petitioner thereafter petitioned for a writ of certiorari challenging the AAU decision. The Court reversed the AAU’s decision, concluding that regardless of whether the petitioner remained involuntarily admitted under the mental health services system, he still retained the separate right to seek changes in his developmental services. The Court reasoned that the legislature established comprehensive, and independent, statutory schemes separately governing developmental and mental health services. There are separate rights pursuant to each statutory scheme, and the petitioner’s status in one system is irrelevant to his rights in the other system.

The Court also found that the petitioner was voluntarily conditionally discharged, rather than involuntarily transferred, to the LRCS service region. The Court, moreover, observed that one of the primary policy goals of the developmental services system was to emphasize community living and involving the service recipient in the community in which he physically resides. For the foregoing reasons, the Court concluded that the petitioner had a right to change his area agency affiliation to LRCS under the pertinent statutory and regulatory scheme.

Justice Robert Lynn dissented in this case. According to Justice Lynn, nothing in the text of the regulation governing changes to area agency affiliation reflected an intent to provide service recipients a judicially enforceable right to have services provided by any particular area agency. The pertinent regulation is merely a housekeeping rule providing for notice of a transfer of affiliation, among other routine things. More fundamentally, however, Justice Lynn observed that the petitioner neither alleged nor proved that he suffered the type of concrete injury that would give the Court subject matter jurisdiction to adjudicate the dispute. At the time of his petition, the petitioner was receiving full developmental services from the Brain Injury Association. The petitioner did not challenge the AAU’s finding that he suffered no harm, he lacked standing, and that his case should be dismissed. Justice Lynn would dismiss the case accordingly.

Aaron Ginsberg of the Disability Rights Center-NH, for the petitioner. Joshua L. Gordon of the Law Office of Joshua L. Gordon, for the respondent.


Real Property

Condominiums at Lilac Lane Unit Owners’ Ass’n v. Monument Garden, LLC & a.
No. 2016-0357
June 9, 2017
Affirmed

  • Whether the trial court erred in interpreting provisions of the Condominium Act to allow a condominium declarant to construct future condominium units on existing condominium land after the condominium was created and contrary to the requirements for convertible land
  • Whether the trial court erred in interpreting provisions of the Condominium Act to allow a condominium declarant to create units without amending the condominium declaration and recording substantially completed certificates

The plaintiff in this case is a condominium owners’ association that sought a declaratory judgment that, among other things, the defendant, the condominium declarant, had no rights to develop further the condominium lands at issue in this case. The plaintiff argued that according to the New Hampshire Condominium Act (the Act) the only method by which a declarant can develop a condominium in phases is by designating certain portions of common area as “convertible land” and later converting that land into units. According to the plaintiff, the defendant failed to follow the requirements for convertible land under the Act, and therefore had no right to continue to develop the land.

The defendant argued that the Act allows for the creation of a condominium that includes planned future development without the need to classify portions of the condominium land as convertible. The defendant contended that because it complied with the New Hampshire statutory requirements upon creating the condominium, which included a phased development, and it was entitled to judgment as a matter of law in this case. The trial court agreed with the defendant and awarded summary judgement to the defendant, finding that the plaintiff’s claims were based on the faulty premise that the condominium necessarily contained convertible land.

For the same reasons as provided by the trial court, the Supreme Court upheld summary judgment in favor of the defendant. The Court found that the plain language of several provisions of the Act allows for the creation of a condominium that includes planned future development but does not require convertible land. The defendant met all of the requirements of the Act, and therefore its planned future development is permitted thereunder without the necessity of creating convertible land.

The Court also disagreed with the plaintiff’s argument that the Act required that units outside convertible land must be substantially completed when a condominium is created. In support of its argument, the plaintiff relied upon a provision in the Act that requires a surveyor to certify on the requisite site plan that all units or portions thereof other than those within convertible lands have been substantially completed. The Court agreed with the trial court’s analysis on this issue, that the provision does not require a surveyor to certify that all units are substantially completed prior to the creation of the condominium. Rather, the provision requires a surveyor to certify only that all units are substantially completed to the extent depicted in the submitted plans.

The Court further rejected the plaintiff’s remaining arguments because they were based on the flawed premise that the condominium was subject to the Act’s requirements for convertible land.

Edmund A. Allcock (on the brief and orally) and Thomas W. Aylesworth (on the brief) of Marcus, Errico, Emmer & Brooks, for the plaintiff. Roy W. Tilsley, Jr. (on the brief and orally) and Michael A. Klass (on the brief) of Bernstein, Shur, Sawyer & Nelson, for the defendants. Robert W. Anctil and Scott Eriksen of Perkins & Anctil, for Community Associations Institute as amicus curiae.


Taxation

Appeal of Public Service Company of New Hampshire d/b/a Eversource Energy
No. 2015-0626
June 2, 2017
Affirmed

  • Whether a decision of the New Hampshire Board of Tax and Land Appeals denying a utility’s tax abatement appeals was clearly unlawful or unreasonable for various reasons

The petitioner in this case, Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), appealed a New Hampshire Board of Tax and Land Appeals (BTLA) order denying 77 of 86 tax abatement appeals on properties located in 31 respondent municipalities for tax year 2011, and 55 respondent municipalities for tax year 2012. The Court held PSNH did not meet its burden to show that the BTLA decision was clearly unreasonable or unlawful.

Specifically, the Court rejected PSNH’s argument that the BTLA erred by failing to accept its expert appraisals, one of which was prepared by an appraiser employed by the New Hampshire Department of Revenue Administration (DRA) for purposes of the state utility property tax. The Court recognized the great difficulty in determining the fair market value of the property of a regulated utility. After discussing the different appraisal values and methodologies employed by various experts in this case, the Court found, upon giving considerable deference to the BTLA, that the BTLA’s findings thereon were supported by the record.

The Court also rejected PSNH’s argument that the BTLA erred in determining that PSNH presented only methodological challenges to the municipalities’ experts and that PSNH did not show that the municipalities’ assessments exceeded market value. The Court upheld the BTLA’s determination that PSNH had not presented sufficient credible evidence to carry its burden of proving that the municipalities’ assessments represented a disproportional market value, explaining that the BTLA made thorough findings upon rejecting PSNH’s expert testimony and appraisals. And, because PSNH had not presented sufficient credible evidence to meet its burden, it was not erroneous for the BTLA to determine that PSNH’s criticism of the municipalities’ assessment methods could not, itself, carry PSNH’s burden of proving disproportionality.

The Court further rejected PSNH’s argument that judicial estoppel should bar municipalities from assessing PSNH’s property at a value greater than the DRA’s assessed value in this case because the municipalities did not challenge the DRA’s assessment. Judicial estoppel is inapplicable in this case because the DRA equalization process is not a legal proceeding in which the municipalities are litigants, and PSNH did not demonstrate that the municipalities took any positions inconsistent with an earlier position.

The Court similarly rejected PSNH’s argument that the BTLA violated state statutory, state constitutional, and federal constitutional requirements that taxation be uniform and proportional by allowing municipal assessments to be greater than the DRA assessments that determine a municipality’s share of county taxes. The Court found that because PSNH is paying the same proportion of local taxes as every other property owner in a municipality, regardless of the value of county taxes owed by the municipality, PSNH is not being taxed disproportionately compared to the other municipal residents. Accordingly, there is no constitutional or statutory violation.

Although the Court rejected all of PSNH’s arguments, it did find that the substantial variance between the DRA’s assessments and the local assessments was “troubling.” According to the Court, such disputes could be mitigated or avoided by adopting a uniform method of utility valuation for ad valorem tax purposes.

Margaret H. Nelson (on the brief and orally) and Derek D. Lick (on the brief) of Sulloway & Hollis for the petitioner. Numerous attorneys and law practices for the multiple respondents. Several amici curiae. Further details about the parties and their representatives can be found in the Court’s full opinion.


Appeal of New Hampshire Electric Cooperative, Inc.
No. 2015-0625
June 2, 2017
Affirmed

  • Whether a decision of the New Hampshire Board of Tax and Land Appeals denying a utility’s tax abatement appeals was clearly unlawful or unreasonable for various reasons

This is the companion case to the Appeal of PSNH (2017) above. The petitioner in this case is the New Hampshire Electric Cooperative, Inc. (NHEC), which, like PSNH above, appealed a New Hampshire Board of Tax and Land Appeals (BTLA) order denying multiple tax abatement appeals on properties located in numerous respondent municipalities for tax years 2011 and 2012. Here the Court similarly held that the petitioner did not meet its burden to show that the BTLA decision was clearly unreasonable or unlawful.

NHEC made arguments substantially similar to the arguments PSNH presented in the previous case, namely, that the BTLA erred by: (1) rejecting its expert appraisals, including one prepared by an appraiser employed by the New Hampshire Department of Revenue Administration (DRA) for purposes of the state utility property tax; (2) ruling that NHEC had presented only methodological challenges to the municipalities’ assessments, and that NHEC did not show that the municipalities’ assessments exceeded market value; and (3) violating constitutional and statutory requirements that taxation be uniform and proportional by rejecting NHEC’s estoppel argument and allowing local municipal assessments to be significantly greater than the DRA assessments that are used to determine a municipality’s share of county taxes.

As in Appeal of PSNH case, the Court discussed the different appraisal values and methodologies employed by various experts in this case. The Court gave considerable deference to the BTLA, and held that the BTLA’s findings were supported by the record. For the same reasons as stated in the Appeal of PSNH above, the Court found inapplicable the doctrine of judicial estoppel. The Court similarly found no constitutional or statutory violation in this case, as NHEC was not being taxed disproportionately compared to the other municipal residents. Finally, the Court again intimated the legislature could mitigate or resolve some of the issues presented in this case by providing guidance on a methodology to determine the value of a utility property.

Margaret H. Nelson (on the brief and orally) and Derek D. Lick (on the brief) of Sulloway & Hollis for the petitioner. Numerous attorneys and law practices for the multiple respondents. Several amici curiae. Further details about the parties and their representatives can be found in the Court’s full opinion.


segTEL, Inc. v. City of Nashua
No. 2016-0305
June 9, 2017
Affirmed

  • Whether a city has the authority to tax a user of utility poles located in city-owned rights of way where the user is not subject to an agreement to pay taxes

In this case, the Court affirmed the grant of summary judgment to the plaintiff on the basis that the defendant city, Nashua, lacked the authority to tax the plaintiff’s use of the city’s rights of way. The pertinent law, RSA 72:23, I(a), allows a city to tax users of city land when the use is pursuant to an agreement that provides for the payment of taxes.

The plaintiff in this case owns or operates fiber optic cables on poles owned by utility companies and located in the city-owned rights of way. The plaintiff does not have an agreement with the city with respect to its occupation of the city’s rights of way or taxation thereof, and the plaintiff’s “pole attachment agreements” with the utility company do not require the plaintiff to pay property taxes assessed by the city. The plaintiff is also not a party to the license between the City of Nashua and the utility company that obligates the utility company to pay real and personal property taxes assessed by the city. Because the plaintiff is not a party to an agreement that provides for its payment of property taxes to the city, the plaintiff is not subject to such taxes.

Carolyn K. Cole of Cole Associates Civil Law, for the plaintiff. Celia K. Leonard of the Office of Corporation Counsel, for the defendant.


Workers Compensation

Appeal of Beverly Desmarais
No. 2016-0224
June 16, 2017
Reversed and remanded

  • Whether a workers’ compensation claimant is entitled to the attorney’s fees and costs for a claim wherein she successfully litigated her entitlement to attorney’s fees and costs associated with an underlying workers’ compensation claim

In this case, the petitioner litigated the issue of her entitlement to attorney’s fees and costs associated with a workers’ compensation claim against her employer first before the New Hampshire Department of Labor and then by appeal before the New Hampshire Compensation Appeals Board (CAB). The CAB ultimately ordered the employer’s insurer to pay the petitioner’s attorney’s fees and costs associated with her claim. The petitioner subsequently requested that the insurance carrier reimburse her for the additional attorney’s fees and costs that she had incurred in her successful effort to recover the fees and costs for the underlying compensation claim. The CAB denied the petitioner’s claim for additional fees and costs.

The Court, however, reversed the CAB’s determination on the second claim for fees and costs. The Court held that in this case, the insurer was responsible for reimbursing the petitioner for the attorney’s fees and costs that she incurred when she litigated her first claim for attorney’s fees and costs associated with her workers’ compensation litigation. The Court concluded that under a particular provision of the workers’ compensation statute, RSA 281-A:44, VI, the petitioner was entitled to reimbursement of reasonable attorney’s fees and costs that she incurred in successfully litigating her fee dispute in this particular case. The Court interpreted the provision to give the broadest reasonable effect to the remedial purpose of workers’ compensation law, and found that the purpose of the provision is to encourage representation in a certain class of disputes with respect to workers’ compensation benefits.

The Court remanded the case to the CAB for a determination as to the reasonableness of the additional fees and costs that the petitioner incurred in litigating the first fees and costs issue at the administrative level. The petitioner was also advised to file with the Court a motion for the attorney’s fees and costs she incurred in connection with the appeal to the Court.

Christopher E. Grant of Boynton Waldron Doleac Woodman & Scott, for the petitioner. Paul R. Kfoury, Jr. (on the brief and orally) and J. Kirk Trombley (on the brief) of Trombley & Kfoury, for the respondents.

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