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Bar News - September 20, 2017

Supreme Court At-a-Glance



Appeal of Dao Nguyen
No. 2016-0365
August 1, 2017

  • Whether the Board of Barbering, Cosmetology and Esthetics committed procedural and substantive errors in suspending the petitioner’s personal license as a manicurist for five years, revoking her shop license, and ordering her to pay all outstanding fines.

The petitioner was issued a personal license as a manicurist in 1998; she also held a shop license. Between April 2013 and October 2015, the petitioner’s shop was inspected four times. The October 2015 inspection followed a customer’s complaint of multiple rules violations after visiting the shop. The catalog of failures wouldgive serious pause to anyone considering a manicure at petitioner’s shop.

Fines were imposed following each of the four inspections in the amounts of $4,100, $14,700, $1,700 and $1,500. The largest fine followed a June 2014 inspection in which one shop employee was found not to be licensed, implements were not sanitized, substances banned for use by persons and prohibited nail drills and “credo blades” were found. That inspection ended when the petitioner refused to let the inspector enter a back room at the shop, refused to sign the inspection report, and began “yelling and screaming” at the inspector.

Nearly a year and a half later, following a customer’s October 2015 complaint and an inspection later that month showing deficiencies, the board issued a notice of hearing to determine if the petitioner was guilty of misconduct in November 2015. Following hearings, the board revoked the petitioner’s licenses and ordered the fines to be paid.

On appeal, the petitioner argued that her personal license should not be suspended; that mere possession of prohibited blades and drills without proof of use was not a violation; that the fines were arbitrary; that the board failed to attach the customer’s complaint to the notice of hearing; that the board failed to provide the investigator’s report prior to the hearing; and that the board’s rulings included violations that were not cited in the notice of hearing.

The court showed little sympathy for the petitioner’s arguments. The court acknowledged that due process protections apply any time the revocation of an occupational license is at stake. But that is all the farther the petitioner got here. The petitioner’s argument that her personal license should not be suspended failed; she unsuccessfully tried to blame employees for all the shop’s.

The court responded by noting that forty months had passed during which time the many failings went uncorrected. Yelling, screaming and refusing to sign inspection forms did not aid the petitioner’s appeal, either, to judge from the court’s comments. The court also rejected the argument that mere possession of prohibited equipment is a defense, noting there was evidence the equipment was in factused. As for the alleged failure of the board to list all the charges and provide all the papers, the court notes that all the substantive issues were set forth in the complaint, and that all the papers were available to the petitioner upon request. That satisfied due process requirements.

Andrew P. Pierce, of Hastings Malia, Fryeberg, ME, for the petitioner. Joseph A. Foster, attorney general (Thomas Broderick, attorney, on the brief) for the respondent.


State v. James Fogg
No. 2016-0268
August 1, 2017
Rev’d in part, vacated in part and remanded

  • Whether a defendant could properly be charged with two counts of aggravated DWI under RSA 265-A:3 when there was only one incident from which the charges arose.

At 3:40 a.m. the defendant’s vehicle struck another vehicle. Both occupants of the other vehicle suffered serious injuries; one was permanently disabled as a result of the collision. The defendant told police that he had fallen asleep, but one officer suspected that the defendant was impaired. A blood test at a local hospital revealed various controlled substances in the defendant’s bloodstream and the defendant admitted to using marijuana.

The defendant was charged with two counts of DWI, one count for the injuries sustained by each of the occupants. The defendant argued that was contrary to the text of the statute and violated double jeopardy protections under the state constitution. The court limited its ruling to the statutory question and concluded that only one count should result from operating a vehicle on a single occasion. The happenstance of how many occupants are in another vehicle was too arbitrary to be the basis for additional counts under the statute as written. The court also noted that enhanced penalties are available in appropriate circumstances.

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

State v. Nathaniel Kibby
No. 2016-0318
August 15, 2017

  • Whether a court order unsealing documents violated the defendant’s guarantee of attorney-client privilege where the documents related to status of counsel and motions for services other than counsel.

Prosecutors “threw the book” at the defendant in this case. As the court notes, “The defendant was indicted on more than 150 charges including kidnapping, criminal threatening, witness tampering, second degree assault, criminal use of an electronic defense weapon, felonious use of a firearm, indecent exposure, falsifying physical evidence, sale of a controlled drug, aggravated felonious sexual assault, and felonious sexual assault.” The case was closed after the defendant pleaded guilty to seven indictments.

Concurrently, the state moved to unseal various document related to the status of the defendant’s counsel and motions for services other than counsel. The trial court agreed with the state, and most of the documents were unsealed. This appeal followed. The court granted the defendant’s motion to stay the release of the documents during the pendency of the appeal.

The defendant made a number of arguments in support keeping the documents sealed, each of which the court rejected. First, the court noted that open and public court proceedings have been a hallmark of our jurisprudence and so court records are considered public absent a compelling reason to the contrary. The defendant here had no compelling reason for prohibiting cisclosure.. Second, while a defendant undoubtedly has a right to preserve client confidences, here the defendant made only a generalized argument of attorney-client privilege. That will not suffice. The protections of client confidences have to be established document by document, and the defendant failed to do that. Third, the trial court concluded that its order unsealing the documents did not reveal any particularized communications with counsel. Hence, on appeal, the defendant’s failure to object to that finding is conclusive. Fourth, by statute, motions for services other than counsel are disclosed at the conclusion of the representation, RSA 604-A:6, and no reasons were presented to override the statute. Finally, in the absence of other reasons to reverse the trial court, the court rejected the defendant’s request that it issue an order covering future cases.

Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant attorney general, on the brief and orally) for the State. David M. Rothstein, deputy director public defender, Concord, on the brief and orally for the defendant.

State v. Travis C. Paige
No. 2016-0342
August 15, 2017

  • Whether the prosecution’s failure to notify the defendant of its intent to seek Class A misdemeanor penalties prior to arraignment precludes the court from imposing Class A misdemeanor penalties.

The defendant led police on a automobile chase in northern Grafton County at speeds exceeding 100 miles per hour. The defendant ignored stop signs, barely missed a cyclist and a minivan, and ended up in a ditch after from a covered bridge emerging at high speeds.

The defendant was charged with felonies, but defendant was convicted of lesser included offenses, all Class A misdemeanors. The distinction between Class A misdemeanors and Class B misdemeanors is that Class A misdemeanors can result in jail time, unlikeClass B misdemeanors.

The prosecution failed to notify the defendant of its intent to seek Class A misdemeanor penalties, presumably because the prosecution sought felony convictions for the conduct charged. The defendant was charged with two other, related Class A misdemeanors, resisting arrest and disobeying a police officer, and the prosecution notified the defendant of its intent to seek jail time for those misdemeanors.

The court concluded that a literal reading of the statute might support the defendant’s argument that notice was required, but to rule that way would produce an outcome that was both absurd and contrary to the statute’s legislative history. Absurd because such a notice requirement would simply mean more paper in the file anytime a jury might decide to return a guilty verdict on a lesser included offense. Since jail time is contemplated with felony charges, it makes no sense to notify the defendant of possible jail time if a felony becomes a lesser-included misdemeanor conviction.

And adopting defendant’s argument would also be contrary to the legislature’s intent. The legislature adopted the notice requirement, because the legislature wanted to avoid needless payment to attorneys representing indigent defendants. By requiring prosecutors to decide whether to prosecute an offense as a Class A misdemeanor, the legislature effectively limited court-appointed attorneys to Class A defendants. Indigent Class B defendants are not entitled to court-appointed attorneys, because they do not face jail time. It goes without saying that , saving money is often what the General Court intends.

Ann M. Rice, deputy attorney general (Sean P. Gill, assistant attorney general, on the memorandum of law) for the State. Thomas Barnard, senior assistant appellate defender, Concord, on the brief and orally for the defendant.


In the Matter of Keli Eckroate-Breagy and Paul Breagy
No. 2016-0400
August 1, 2017

  • Whether inheritances received during the pendency of an appeal should be included in a marital property distribution and a property distribution decree entered by the trial court below should be reopened for later inheritances.

The petitioner, the former wife, appealed from the trial court’s orders following a contested hearing over property division and alimony. While that appeal was pending, the former husband received inheritances from two family members. Upon learning of the inheritances, the petitioner asked the trial court to compel the disclosure of the inheritances and to reopen the order on the distribution of marital property. The trail court denied the petitioner’s requests, reasoning that any rights to marital property end upon issuance of a final decree of divorce, regardless of whether an appeal was filed.

On appeal, the court agreed with the trial court, reading RSA 458:16-a in its entirety to conclude that marital property includes property acquired up to the date of the decree of divorce, but not afterwards. If nothing else, a contrary ruling would create an incentive for parties to appeal from divorce decrees in order to enlarge the time during which marital property could accrue. Here, because the inheritances came after the decree of divorce, the inheritances were not marital property, there was no reason to reconsider the property distribution, and the trial court properly refused to compel disclosure of the inheritances because the petitioner had no legal claim on the inheritances.

The notion that timing always matters, but especially in marriage and divorce, was certainly right, at least in this case.

Keri J. Marshall, of the Marshall Law Office, East Kingston, on the brief, and Sharon J Rondeau, of the Law Offices of Sharon J. Rondeau, Exeter, orally, for the petitioner. Amy C. Connolly of Russman Law Offices, Exeter, on the brief and orally.

In the Matter of Leslie Dow and Harry Dow, IV
No. 2016-0468
August 15, 2017
Vacated and remanded

  • Whether imputed income should be included in the calculation of alimony under RSA 458:19.

Following thirty years of marriage, the parties divorced. In the year preceding the divorce, the parties agreed that the wife should leave a pre-school job that paid her $21 an hour so she could spend more time with their grandchildren.

The parties did not agree on alimony, because her husband argued that her potential earnings in a pre-school job should be imputed to her and considered in calculating alimony. The trail court found that the wife could contribute to her own support and had not made the effort needed to replace lost income. Nonetheless, the trial court concluded that under RSA 458:19 it had no authority to impute income to the wife.

On appeal, the court noted that it is well-established that a trial court may consider the earning capacities of both parties. In particular, RSA 458:19 authorizes a trail court to consider the earning capacities of both spouses in determining alimony, and therefore the court concluded the trail court may impute income to either party based upon each’s earning capacity.

The court remanded the case, because it was unclear what weight was given to the factors the trial court considered in determining the amount of alimony.

William B. Pribis, of Cleveland, Waters and Bass, Concord, on the memorandum of law and orally for the petitioner. John A Macould, of Salem, by brief and orally, for the respondent.

In the Matter of Sandra L. Patient and March C. Patient, Jr.
No. 2016-0431
August 1, 2017

  • Whether the failure of the parties’ stipulated decree of divorce to require the former husband to notify the former wife that he had re-married relieved him of any liability for medical expenses incurred by his former wife after she lost her insurance coverage upon his re-marriage but did not learn of his re-marriage until two months later.

The parties stipulated divorce decree required the former husband to continue his former wife’s health insurance coverage until he re-married. He remarried, but he did not tell his wife he had re-married. For two months following his re-marriage his former wife was ignorant of the re-marriage. During those two months, she incurred some $5,000.00 in medical expenses. He refused to pay her medical expenses, arguing there was no express requirement in the stipulated decree that he notify his former wife of his re-marriage. The trial court disagreed, and this appeal followed.

On appeal, he argued that trial court erred by failing to apply the parole evidence rule and erred by implying a notice requirement. The court found the parole evidence rule inapplicable, because the ruling below was based on the terms of the stipulation, not any evidence external to that document, and that the disputed obligations were arguably intrinsic to the document. Hence the court rejected the parole evidence argument.

Turning to the second issue, notice, the court did not hesitate to imply a notice requirement. The court made clear its willingness to imply a notice requirement any time a contract, read in its entirety, evinced an intent to require notice. Here, lack of notice put the former wife at a significant disadvantage and there was no way the wife could protect her interests if she was not notified of her former husband’s remarriage. Quoting Williston on Contracts, the court noted that “[o]ne of the most common necessary conditions is that of notice of some fact.” Law school, for this writer at least, was years ago, but Williston is still with us.

Sandra L. Patient, petitioner and self-represented party, by brief. Donald A. Kennedy, of the Law Office of Donald A. Kennedy, Manchester, on the brief for the respondent.

Real Property

Barbara F. O’Malley et al. v. Aaron Little et al.
No. 2016-0491
August 31. 2017

  • Whether a reasonably prudent person would understand that he had been ousted from adverse possession of certain land upon being told that he did not have title and that he should vacate the disputed property

In this action to quiet title, adjoining property owners disputed their property line. In December 1993, Owner A put up a fence that was 3-5 feet onto the property of Owner B. Owner B conveyed his lot to the Littles in 2008. The Littles assumed that the fence marked the property line, but in 2010 learned that the property line was in fact 3-5 feet onto to their property. Shortly thereafter, the Littles told Owner B—now the O’Malleys—that the fence was over the line and needed to be removed.

There was some back and forth between the parties. A question arose as to whether the Littles told the O’Malleys that they had permission to use the disputed property; both parties walked a line set by some surveyor’s pins that did not accurately mark the property line; but nothing more happened until fall 2013.

At that point, the Littles renewed their request that the fence be moved. A month later, the Littles threatened to take further unspecified action to move the fence, but nothing was done. In December 2013, the O’Malleys filed an action to quite title. The O’Malleys presumably knew that the 20-year statute of limitation for adverse possession had run two months’ earlier, the period here running from October 1993 to December 2013.

Following a two-day bench trial, the court below concluded that the O’Malleys had not been given permission to use the disputed land and that the Littles’ demand that the O’Malleys remove the fence standing alone “would not put a reasonably prudent person on notice that they had actually been ousted.” The Littles appealed.

After declining to answer a question about summary judgment, the Court turned to the question of whether the Littles, as rightful owners, needed only assert title and demand that the adverse possessor leave in order to oust an adverse possessor. The short answer is no: “A review of our jurisprudence with regard to this question indicates that, contrary to the Littles’ claim, ouster requires significantly more than mere verbal demands and assertions of title.”

What is required? Explicit permission following an assertion of adverse possession works, but here the permission was clouded by conflicting testimony and inconsistent acts and so no explicit permission was found. Other than that, the Court simply states that some action either to eject the adverse possessor or to disrupt their open use is required. I suppose if the Littles had erected their own fence 3-5 on the other side of the O’Malleys fence they would have “ousted” them. The Court does not actually say what one should do. After reading this opinion, I’m glad that years ago we sent a registered letter to our neighbor giving him permission to use our land when he started mowing field grass we knew was on our side of the property line.

Daniel R. Hartley, of the Casassa Law Office, Hampton, on the brief and orally. Joshua L. Gordon, of the Law Office of Joshua L. Gordon, Concord, on the brief and orally.

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