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Petitioners Mary Allen, Fred Ward, and other interested parties, appealed the decision of the New Hampshire Site Evaluation Committee (Committee) authorizing respondent Antrim Wind Energy, LLC (Antrim Wind), to construct and operate nine wind turbines in the town of Antrim. Antrim Wind originally filed an application (Antrim I) with the Committee in 2012, seeking authorization to construct ten wind turbines. Six of the turbines would be equipped with red flashing aviation obstruction lights. The project also included four miles of new gravel surfaced roads, a joint electrical system, an interconnection substation, and a maintenance building. Antrim Wind further proposed to construct a meteorological tower between turbines three and four to obtain wind data, dedicate 800 acres of land to conservation easements, and install a radar activated lighting system. Antrim I was initially denied; a few years later, Antrim II was filed and ultimately approved by the Committee, finding the second application reflected a “substantial change” from the first application, and as such, would not “have an unreasonable adverse effect on the health, safety, or aesthetics of the region. On appeal, petitioners argued the Committee’s ultimate decision was unreasonable, unlawful, and unjust because: (1) the subcommittee was unlawfully constituted; (2) the denial of Antrim I barred Antrim Wind’s Antrim II application under the doctrine of res judicata as well as the subsequent application doctrine as set forth in Fisher v. City of Dover, 120 N.H. 187 (1980); and (3) there was insufficient evidence in the record to support the subcommittee’s finding that the project proposed in Antrim II would not have an unreasonable adverse impact on aesthetics, public health, and safety. After review of the record, the New Hampshire Supreme Court concluded there was competent evidence to support all of the subcommittee’s factual findings. The subcommittee deliberated about each of these assessments and impacts and determined which experts it found to be more credible. The subcommittee also imposed certain mitigation measures and conditions to address remaining concerns and to ensure regulatory compliance. Accordingly, the Court concluded petitioners failed to show reversible error. View "Appeal of Allen et al." on Justia Law

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Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law

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Plaintiff Slania Enterprises, Inc. appealed a superior court decision to grant defendant Appledore Medical Group, Inc.’s motion to dismiss as time-barred a petition to recover damages stemming from an alleged breach of a commercial real estate lease. In October 2012, Slania, as the lessor, and Appledore, as the lessee, entered into a commercial real estate lease for an initial fixed term that ended on April 30, 2015. However, Appledore never took possession of the premises. Appledore paid rent due through January 2013, but then stopped doing so. In March 2013, Appledore communicated to Slania that it wished to terminate the lease. On April 12, 2013, Slania notified Appledore that it was in default on its rental payments. Appledore did not pay. On April 22, 2013, at the expiration of a 10-day cure period, Slania notified Appledore that, pursuant to Section 13.1(b) of the lease, it was electing, as its remedy upon default, to “keep the lease in effect and recover rent and other charges due [from Appledore] less the amount [Slania] may recover by re[-]letting the premises.” Slania re-let the premises from February 2015 through the end of the initial term of the lease, April 2015, for a lesser monthly amount. Approximately one year later, Slania filed a breach of contract action against Appledore for $82,527.87 in damages, which included rent, late fees, and utility costs due from May 2013 through April 2015. Appledore moved to dismiss, asserting that because the lease was breached no later than April 22, 2013, the claim was barred by a three-year statute of limitations. Slania objected, arguing that the lease was an installment contract, and, therefore, the statute of limitations did not bar a suit to recover payments due within three years of the date the complaint was filed. The trial court granted Appledore’s motion to dismiss, ruling that, because “a real estate lease of the type involved here is not an installment contract as that term is contemplated in the statute of limitations context,” the so-called “installment contract rule,” under which the statute of limitations runs only against each installment when it becomes due, did not apply. The New Hampshire Supreme Court concluded commercial real estate leases did not fall outside the bounds of the installment contract rule, and reversed the trial court’s contrary ruling. In rejecting Slania’s assertion that it could elect to keep the lease in place and sue for breaches that occurred within three years of the date it filed suit, the trial court did not mention anticipatory repudiation or material breach. The Supreme Court found this case raised issues of first impression regarding the interplay of the installment contract rule, a party’s election of contractual remedies, and anticipatory repudiation or anticipatory breach. It did not appear that these issues were fully explored by the trial court; accordingly, the Supreme Court vacated the trial court’s ruling with respect to Slania’s argument that, under the terms of the lease, it could keep the lease in effect and bring an action to recover for breaches that occurred no more than three years before the date it filed this suit. The case was remanded for such further proceedings, as the trial court deemed necessary. View "Slania Enterprises, Inc. v. Appledore Medical Group, Inc." on Justia Law

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Defendant Allstate Insurance Company appealed a superior court order granting the motion for partial summary judgment filed by plaintiff Joseph Rizzo, and denying the cross-motion for partial summary judgment filed by Allstate. Rizzo alleged he was injured in an automobile accident while a passenger in a car insured by Allstate. Rizzo sought uninsured motorist coverage under the Allstate policy, and, after Allstate denied his claim, the claim went to arbitration. The uninsured motorist provision in the Allstate policy provided that if the arbitration award exceeded $25,000, the financial responsibility limit in New Hampshire, the insured and Allstate had the right to elect a trial de novo following arbitration. Allstate rejected the arbitration award, which exceeded the financial responsibility limits, and requested a trial de novo. The trial court ruled that the trial de novo provision in the policy was not enforceable because it was unconscionable, ambiguous, and violated public policy, and confirmed the arbitration award. The New Hampshire Supreme Court concluded the trial de novo provision did not contravene New Hampshire public policy regarding arbitration. Nor did the Supreme Court find the trial de novo provision unconscionable. Accordingly, the Court reversed and remanded for further proceedings. View "Rizzo v. Allstate Insurance Company" on Justia Law

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Defendant Brian Watson appealed his conviction by a jury for felony sale of a controlled drug with death resulting. On appeal, he argued the superior court erred by: (1) denying his motion to suppress statements allegedly obtained in violation of his Miranda rights; and (2) allowing a forensic toxicologist, Dr. Daniel Isenschmid, to testify to the results of toxicology tests that he did not conduct. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Watson" on Justia Law

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Petitioner, the State Employees’ Association of New Hampshire/Service Employees’ International Union, Local 1984 (Union), appealed a New Hampshire Public Employee Labor Relations Board (PELRB) order dismissing its unfair labor practice complaint against respondent, the Community College System of New Hampshire (CCSNH). The Union argued the PELRB erred in ruling that CCSNH was not obligated to: (1) bargain over wages for on-campus tutoring services performed by adjunct faculty; and (2) compensate an adjunct faculty member for lost tutoring income resulting from his participation in collective bargaining negotiations. The New Hampshire Supreme Court concluded that the tutoring services at issue here were, if anything, more closely related to the normal adjunct faculty members’ duties than the extracurricular activities in Appeal of Berlin Education Association, 125 N.H. 779 (1984) were related to the teachers’ regular duties. "Thus, the result reached in Berlin applies a fortiori to control the outcome here. Either way, the PELRB erred as a matter of law." Because the plain language of RSA 273-A:11, II obligated CCSNH to afford “[a] reasonable number of employees who act as representatives of the bargaining unit . . . a reasonable opportunity to meet” for collective bargaining negotiations “during working hours without loss of compensation or benefits,” the Supreme Court agreed with the Union that CCSNH had to compensate the adjunct faculty for the tutoring hours he missed while attending such negotiations. View "Appeal of State Employees Association/Service Employees International Union, Local 1984" on Justia Law

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Darlene Washburn was convicted by jury of possession of a schedule II controlled drug. On appeal, she argued the Trial Court erred when it: (1) denied her motion to suppress evidence seized in warrantless searches of her purse, vehicle, and home; and (2) instructed the jury on a lesser-included offense that did not ensure jury unanimity and failed to protect her against double jeopardy. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Washburn" on Justia Law

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Darlene Washburn was convicted by jury of possession of a schedule II controlled drug. On appeal, she argued the Trial Court erred when it: (1) denied her motion to suppress evidence seized in warrantless searches of her purse, vehicle, and home; and (2) instructed the jury on a lesser-included offense that did not ensure jury unanimity and failed to protect her against double jeopardy. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Washburn" on Justia Law

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Defendant James Bazinet was convicted by a jury of negligent homicide for driving a motor vehicle while he was intoxicated and causing a fatal collision. He appealed the rulings of the Superior Court denying his motions to suppress the results of testing done by the State on a blood draw sample taken by the hospital after he arrived there unconscious. The court ruled that the defendant did not have a reasonable expectation of privacy in the hospital blood draw sample, and that the State acted lawfully in obtaining and testing it for blood alcohol content without a warrant. Citing a case discussing the emergency exception to consent in the civil context, the court found that the defendant implicitly consented to medical treatment. The court further concluded that “no ‘search’ occurred within the meaning of [the federal and New Hampshire] constitutions when the police later tested the defendant’s blood for DNA.” The New Hampshire Supreme Court concurred with the Superior Court’s judgment, noting in particular to the admission of the DNA evidence that given the other evidence presented by the State to establish that the defendant was the driver, the DNA evidence was cumulative. View "New Hampshire v. Bazinet" on Justia Law

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Respondent Lauren DiGiulio appealed a circuit court order granting petitioner Gregory Neal's petition to rescind a voluntary acknowledgment of paternity. Respondent also appealed the trial court’s denial of a hearing on her request for attorney’s fees. In July 2009, the respondent gave birth to a child (the child or the first child). Although the parties lived in New Hampshire, the child was born in Portland, Maine. The day after the birth, the parties executed a Maine voluntary acknowledgment of paternity form, acknowledging that petitioner was the child’s “natural father.” The parties lived together for approximately three years, and, in 2011, they had a second child (the second child). The parties separated after the birth of the second child. In 2012, the parties voluntarily underwent paternity testing to determine the paternity of both children. The test results revealed that the petitioner was the second child’s biological father, but that he was not the biological father of the first. Despite the test results, the petitioner continued to try to have a relationship with the child and had substantial parenting time with the child until March 2014 when the child’s biological father was released from prison. At that point, respondent severed petitioner’s contact with the child in favor of the child’s biological father. Thereafter, petitioner made a number of requests to see the child, all of which were denied. However, at no time did petitioner file a parenting petition with respect to the child. In 2015, petitioner filed a parenting petition with respect to the second child, without identifying the first child as also being one of the parties’ children. In November, in that same proceeding, petitioner filed a “Motion to Rescind Paternity” of the first child, seeking to rescind the acknowledgment of paternity he executed with respect to the child and requesting that the court “[a]cknowledge that [he] is not the biological father of” the child and “order and declare that [he] is not the legal father of” the child. Following a hearing, the trial court granted the motion, rescinding the petitioner’s acknowledgment of paternity of the first child. The New Hampshire Supreme Court concluded that, under the specific circumstances of this case, the record established an objective basis sufficient to sustain the trial court’s ruling that, despite petitioner’s delay in filing the motion, it was fair to allow petitioner’s motion for rescission of paternity. View "In the Matter of Gregory Neal and Lauren DiGiulio" on Justia Law

Posted in: Family Law