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Defendants Aaron and Maryann Little (Littles) appealed a Superior Court quieting title in plaintiffs Barbara O’Malley and her daughter Helen O’Malley a strip of land based upon adverse possession, as well as a previous order denying the Littles’ motion for summary judgment. Barbara and her husband, Joseph, acquired the “McKay Lot” in 1963 for use as a summer home. Over the next 50 years, the couple lived there with their children. The backyard of the McKay Lot abutted the backyard of the Littles’ property (“Francis Lot”). In October 1993, Barbara contracted for the installation of a chain link fence between the McKay Lot and the Francis Lot after tenants from the latter began walking across the yard of the Francis Lot with beach chairs and scratching Helen’s car. The fence was placed about three to five feet over the property line between the two lots. Between the fence and the property line (disputed area), there was a clothesline and outdoor shower and grill, all of which were used frequently by the O’Malley family. The plaintiffs and their relatives and friends would occasionally park against the fence. In 1996, following the death of her husband, Barbara deeded the McKay Lot to herself and her daughter Helen. The Littles purchased the Francis Lot in December 2008. Upon acquiring the property, the Littles assumed that the actual property line was represented by the fence between the two properties. However, in the spring of 2010, Scott McCarthy, a prior owner of the Francis Lot, informed the Littles that the plaintiffs’ fence encroached approximately three to five feet onto the Francis Lot from the actual property line. The Littles confirmed this statement by reviewing a survey plan and measuring the property line with a tape measure. They then called plaintiffs in April 2010 to inform them of this discovery, before stating that they needed to move the fence. Plaintiffs refused. Upon reviewing the record, the New Hampshire Supreme Court found ample evidence that there was “no evidence that [record owner] took steps to eject [adverse possessors] or to disrupt their open possession of the disputed parcel” and affirmed quieting title in plaintiffs. View "O'Malley v. Little" on Justia Law

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In 2015, defendant Travis Paige led police on a high-speed vehicle chase. Defendant disregarded stop signs and nearly struck a cyclist and a minivan before losing control of the vehicle after passing through a covered bridge and crashed into a ditch. The vehicle came to rest on the passenger side. Leaving his girlfriend in the passenger seat of the vehicle, defendant climbed out of the driver’s side window and fled on foot into the woods. The police officer on scene chose not to pursue, opting instead to help the girlfriend get out of the car, which was smoking. Defendant was ultimately arrested and indicted on three counts of felony reckless conduct with a deadly weapon. Ordinarily, reckless conduct was an unspecified misdemeanor. However, it becomes a class B felony when a deadly weapon is used in the commission of the offense. Defendant also was charged by informations with two misdemeanor offenses, one alleging that he disobeyed a police officer, and the other alleging that he resisted arrest. The State filed notice it was electing to prosecute both misdemeanor offenses as class A misdemeanors. Defendant was thereafter tried by jury. The trial court instructed the jury on the elements of felony reckless conduct and, over the State’s objection, on the elements of the lesser-included misdemeanor reckless conduct offense. The jury acquitted defendant of all three felony reckless conduct charges, but convicted him of three counts of misdemeanor reckless conduct. The jury also convicted defendant of resisting arrest and disobeying an officer. For the charges of resisting arrest and disobeying an officer, the court sentenced defendant to consecutive twelve-month terms of incarceration; for each misdemeanor reckless conduct convictions, it imposed suspended twelve-month sentences that were concurrent with each other but consecutive to the stand committed sentences. Defendant appealed the sentences. Finding no error in sentencing, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Paige" on Justia Law

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Defendant Nathaniel Kibby appealed a superior court order that unsealed pleadings, hearings and letters related to the status of counsel and unsealing motions for services other than counsel that he filed ex parte during the pendency of his case. 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. At a chambers conference, the defense raised an issue of status of counsel and requested that the court hold a closed, ex parte hearing on the matter. The trial court informed the parties that it had received two letters from defendant relevant to the status of counsel issue in the previous two days, that it had not sent the letters to the State, and that the letters were sealed in the court’s file. The State moved to unseal the letters and the record of the ex parte hearing. In granting the State’s motion, the trial court reasoned that “the rationale in support of the adjudication of issues on an ex parte basis no longer appear[ed] to apply” because the pleas resolved all pending criminal issues involving defendant. Defendant claimed the letters he sent to the trial court “contain information covered by the attorney-client privilege,” because four of them “raised general issues about counsel’s representation,” and one letter “related specifically to the issue that was the subject of counsel’s pleadings and two hearings.” The New Hampshire Supreme Court found that defendant had the burden of justifying the confidentiality of every document sought to be sealed, and he could not prevail upon his claim to keep the letters sealed merely by asserting a general claim that the record contains privileged attorney-client communications. Defendant conceded that unsealing the documents would not compromise his defense and that he sought a ruling on this issue only for “future cases.” Consequently, the Supreme Court held defendant failed, as a matter of law, to meet his burden of demonstrating with specificity a compelling interest in this case to justify maintaining the motions under seal. View "New Hampshire v. Kibby" on Justia Law

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Respondent Harry Dow, IV appealed a circuit court order requiring him to pay alimony to petitioner Leslie Dow in the amount of $750 per month for three years. When it calculated the amount of alimony, the trial court declined to impute income to petitioner, concluding that it had no authority to do so under RSA 458:19 (Supp. 2016). On appeal, respondent argued, among other things, that the trial court erred because RSA 458:19 authorized the imputation of income for the purpose of determining the amount of alimony. The New Hampshire Supreme Court agreed with respondent and, therefore, vacated and remanded. View "In the Matter of Leslie Dow & Harry Dow, IV" on Justia Law

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Petitioner Keli Eckroate-Breagy appealed a circuit court order denying her motion to reopen the property distribution decreed in her divorce from respondent Paul Breagy. She filed the motion after the respondent received two inheritances. She also appealed the trial court’s refusal to compel answers to her discovery requests about the inheritances. The New Hampshire Supreme Court found: (1) property acquired by either party after the date that the divorce decree is issued is not marital property; and (2) in light of holding that the inheritances were not marital property, the trial court’s refusal to compel discovery regarding the inheritances was not an unsustainable exercise of discretion. View "In the Matter of Keli Eckroate-Breagy & Paul Breagy" on Justia Law

Posted in: Family Law

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Petitioner Dao Nguyen appealed a New Hampshire Board of Barbering, Cosmetology, and Esthetics (Board) decision, suspending her personal license as a manicurist and revoking the shop license for Nail Care. In 2013, Board inspector Beulah Green conducted a routine inspection of Nail Care, finding numerous violations of the Board Administrative Rules (Rules), including two foot spas that were not disinfected properly, no record of cleaning for two foot spas, five tables that were not sanitized, numerous implements that were either not sanitized and disinfected properly or not discarded or disposed of properly, multiple “credo” blades, and the use of nail drills that are not manufactured for use on the natural nail (improper nail drills). For these violations, Green imposed a fine of $4,158. In the next few years, Green conducted additional inspections, and again found multiple, repeat violations of the Rules. Noting the repeated violations and the “blatant disregard” that the petitioner demonstrated towards the Rules, the Board suspended petitioner’s personal license for five years, revoked her shop license for Nail Care, and ordered her to pay all outstanding fines owed to the Board within 90 days. The Board also ruled that, if the petitioner’s license is reinstated, it will be subject to a three-year probationary period. Finding the Board’s decision was supported by substantial, credible evidence, the New Hampshire Supreme Court affirmed the Board’s decision. View "Appeal of Dao Nguyen" on Justia Law

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Defendant James Fogg appealed a superior court order denying his motion to dismiss one of the two counts of aggravated driving while intoxicated (DWI) of which he was convicted. The State charged defendant with two counts of aggravated DWI: one count for the injuries sustained by each occupant of the vehicle that the defendant hit. On appeal, defendant argued the trial court’s interpretation of RSA 265-A:3 was unfaithful to the text of the statute and its legislative history, and violated the double jeopardy protections provided by the State and Federal Constitutions. RSA 265-A:3 set forth three requirements for an aggravated DWI offense: (1) driving or attempting to drive a vehicle upon a way; (2) while intoxicated; and (3) fulfilling any one of the four alternative conditions listed in RSA 265-A:3, I(a)-(d). These four alternatives were: (a) driving more than 30 miles per hour in excess of the speed limit; (b) causing a motor vehicle collision that results in serious bodily injury to the driver or another; (c) attempting to elude a law enforcement officer by increasing speed, extinguishing headlamps, or abandoning the vehicle; and (d) carrying a passenger under the age of 16. The New Hampshire Supreme Court concluded the legislature intended the gravamen of the offense to be the operation of a vehicle while intoxicated, and accordingly concluded that only a single aggravated DWI charge arises from operating a vehicle on a particular occasion. The Court concluded the legislature did not intend the “unit of prosecution” under subsection I(b) of the statute to turn upon the number of persons suffering serious bodily injury in a single collision resulting from operation of a vehicle on a particular occasion. Because the Court conclude that the trial court erred in interpreting RSA 265-A:3, it did not reach the State’s or the defendant’s constitutional arguments. The Court reversed defendant’s conviction on one of the aggravated DWI indictments, and remanded to the trial court with instructions that it determine which conviction and sentence to vacate. View "New Hampshire v. Fogg" on Justia Law

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Defendant Jason Candello was convicted by jury for second-degree assault. He appealed, arguing primarily the State offered insufficient evidence to prove the victim suffered serious bodily injury. He also argued he received ineffective assistance of trial counsel, and as such, the trial court erred in denying him a new trial. After review, the New Hampshire Supreme Court found no reversible error from the conviction, and affirmed. View "New Hampshire v. Candello" on Justia Law

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The State of New Hampshire moved to enforce administrative subpoenas served on defendants Actavis Pharma, Inc., Endo Pharmaceuticals, Inc., Janssen Pharmaceuticals, Inc., Purdue Pharma L.P., and Teva Pharmaceuticals USA, Inc. The State was investigating defendants’ role in allegedly causing health care providers to prescribe opioids to treat chronic pain. Defendants resisted, arguing the Office of the Attorney General’s (OAG) engagement of outside counsel was unlawful. In addition, defendants moved for a protective order, seeking to “bar the Attorney General from engaging contingent fee counsel to: (a) participate in or assume responsibility for any aspect of the State’s investigation of alleged violations of the Consumer Protection Act . . . ; or (b) participate in or assume responsibility for any subsequent enforcement action pertaining to alleged CPA violations.” Defendants argued that the OAG’s fee agreements with the firm Cohen Milstein: (1) violated RSA 21-G:22 and :23 (2012) (amended 2016); (2) violated New Hampshire common law; (3) were ultra vires because the OAG did not comply with RSA 7:12 (2013) (amended 2016) or :6-f (Supp. 2016); (4) violated the doctrine of separation of powers; (5) violated the New Hampshire Rules of Professional Conduct; and (6) violated due process under the New Hampshire and United States Constitutions. The State replied that an objection to the Attorney General’s use of outside counsel was not appropriate justification for refusing to comply with lawful subpoenas, and that defendants lacked standing to raise that complaint. The trial court denied the State’s motion to enforce the subpoenas and granted the defendants’ motion for a protective order “to the extent that the OAG and Cohen Milstein’s contingency fee agreement is invalid.” The trial court determined that the defendants had demonstrated standing to bring their claims, that the fee agreement was void, and therefore denied the State’s motion to enforce the subpoenas on that basis. The New Hampshire Supreme Court concluded defendants lacked standing to challenge the outside counsel agreement. It reversed and remanded the matter for further proceedings. View "New Hampshire v. Actavis Pharma, Inc." on Justia Law

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Petitioner’s receipt of developmental services was voluntary, and accordingly he retained the right to “seek a change in [developmental] services or withdraw entirely from the [developmental] service delivery system.” Petitioner Wayne Sawyer had a developmental disability and history of mental illness. He received state-administered developmental and mental health services and lived at the Laconia Designated Receiving Facility (Laconia DRF), a state-operated facility. Prior to his move to Laconia DRF, petitioner requested that his area agency affiliation for developmental services be changed to respondent Lakes Region Community Services (LRCS), the area agency serving Laconia. LRCS denied his request. Petitioner appealed to the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS). The AAU affirmed, finding that the petitioner failed to prove that his move to Laconia DRF constituted a change in legal residence. On appeal, the petitioner argues that, under RSA chapter 171-A and its implementing regulations, he had a right to change his area agency affiliation to LRCS. LRCS counters that, because the petitioner remains institutionalized and was not conditionally discharged, his move was involuntary and, therefore, he had no right to change area agency affiliation. The New Hampshire Supreme Court agreed with petitioner that he had a right to change his area agency affiliation. View "Petition of Wayne Sawyer" on Justia Law