Articles Posted in Civil Procedure

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Plaintiff Samuel Rogers appealed a superior court order dismissing his complaint against his son, Joseph Rogers, upon finding that the probate court and not the superior court, retained exclusive subject matter jurisdiction over his cause of action. Plaintiff’s wife died in March 2012 and the parties’ dispute arose after the disposition of her estate. The decedent’s will named defendant as the executor of the estate, which was comprised of, in pertinent part, two properties in Hollis, New Hampshire: plaintiff’s marital home and the decedent’s 50% ownership interest in 94.3 acres of undeveloped land on Rocky Point Road. In her will, the decedent devised one-third of the estate to plaintiff and the remaining two-thirds to defendant. The probate court appointed defendant as the executor of the estate in May 2012. At some point in 2015, plaintiff learned that the Town of Hollis had either offered to purchase or agreed to purchase Rocky Point for $2,500,000, but, for reasons not established by the record, the sale was never consummated. Thereafter, plaintiff discovered his son had commissioned an appraisal of Rocky Point in 2005 which estimated that the value of the property at that time was $1,950,000. These valuations suggested that following the parties’ exchange of property interests, defendant’s interest in Rocky Point would have been worth approximately $975,000. Based on these discoveries, plaintiffs sued his son in 2016 in superior court, alleging breach of fiduciary duty, fraud, negligence, and unjust enrichment. Defendant moved to dismiss, arguing his father's claims were barred by the statute of limitations, which was within six months of the probate court's issuance of the certificate of appointment in May 2012. Ruling that defendant mischaracterized plaintiff's claims, the superior court denied defendant's motion. Upon reconsideration, the trial court granted defendant's motion and dismissed plaintiff's superior court claims, finding they related the the estate and will, and any misrepresentation of Rocky Point took place during the administration of the estate. The New Hampshire Supreme Court concluded the claims at issue here did not fall within the probate court's exclusive jurisdiction, reversed and remanded for further proceedings. View "Rogers v. Rogers" on Justia Law

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The New Hampshire Supreme Court accepted a petition in its original jurisdiction to determine whether the Superior Court erred in ordering the New Hampshire Secretary of State and the New Hampshire Attorney General, defendants in litigation pending before that court, to produce to plaintiffs in the litigation, the League of Women Voters of New Hampshire, the New Hampshire Democratic Party, and various individuals, the New Hampshire Centralized Voter Registration Database established pursuant to RSA 654:45 (Supp. 2018). The Supreme Court concluded the Database was exempt from disclosure by statute, and therefore vacated the trial court’s order. View "Petition of New Hampshire Secretary of State" on Justia Law

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Plaintiff Michelle Clark appealed a superior court order granting summary judgment to defendants the New Hampshire Department of Employment Security (DES), Dianne Carpenter, Darrell Gates, Sandra Jamak, Colleen O’Neill, Tara Reardon, and Gloria Timmons, on plaintiff’s claims alleging a violation of the Whistleblowers’ Protection Act, and the Public Employee Freedom of Expression Act. She also appealed an order dismissing her claim of wrongful discharge/demotion against DES. As a supervisor, plaintiff was responsible for supervising approximately fifteen employees, including three interns, two of whom were children of two named defendants. Plaintiff became concerned about issues relating to her interns’ hours and responsibilities and their behavior in the workplace. Notwithstanding receiving positive performance evaluations, after voicing concerns, plaintiff became concerned her supervisors altered a review she had prepared for an employee under her supervision because the employee had complained about the interns and Timmons’ management. A second evaluation was negative, and she did not receive a promised promotion. Shortly thereafter, plaintiff received a letter from a DES Human Resources Administrator, informing her that she would be laid off pursuant to a mandatory reduction in force. Prior to her layoff date, plaintiff accepted a demotion to the position of Program Assistant I in lieu of a layoff. Thereafter, plaintiff appealed her demotion to the New Hampshire Personnel Appeals Board (PAB) through a grievance representative from her union. In her appeal, she alleged that she was unlawfully demoted in response to raising concerns about the hours and behavior of the interns. In this case before the New Hampshire Supreme Court, plaintiff alleged she experienced various forms of harassment in retaliation for voicing her concerns while she was supervisor: her car was “egged” in the DES parking lot, her home mailbox was smashed, and she received anonymous phone calls and mail at home and at work. As a result of distress from these incidents, plaintiff went on medical leave from December 2011 to February 2012. In addition to her PAB appeal, plaintiff communicated with other state agencies about the intern issues and the harassment she was experiencing: in May 2012, she filed a complaint with the New Hampshire Executive Branch Ethics Committee against Reardon for failing to address misuse of the hiring system, nepotism, and harassment; in June 2012, she filed a whistleblower complaint with the New Hampshire Department of Labor against DES on similar grounds; and, at some point, she participated in an investigation of DES by the New Hampshire Attorney General’s Office. The Supreme Court reversed the trial court's order relating to plaintiff's ongoing-retaliation claim, and remanded the whistleblower protection claim. Plaintiff’s claim under RSA 98- E:4, I, expressly entitled her to injunctive relief as part of her freedom of expression claim, which was also remanded to the trial court. The Court affirmed as to all other respects of the trial court's order. View "Clark v. New Hampshire Dept. of Employment Security" on Justia Law

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Plaintiffs David and Katherine Dietz appealed a superior court order that upheld a zoning board of adjustment (ZBA) decision for defendant Town of Tuftonboro, which granted intervenor Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town’s zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee. Sawyer Point’s house was located along the shore of Lake Winnipesaukee and within the Town’s Lakefront Residential Zoning District (District); the Dietzes owned the abutting property, also within the District. In 1999, Sawyer Point added a second floor addition over the eastern portion of the first floor of its house, aware that the existing structure was located within the setback, and that a second floor addition would also be within the setback. Prior to construction, Sawyer Point submitted a building permit application to the Town containing a rough sketch of the existing house, which also showed that the house was situated less than fifty feet from the lake. The Town’s building inspector granted the building permit, noting the addition would cause “no change in footprint.” In 2008-2009, Sawyer Point constructed a second addition to its house, again receiving permission from the Town to construct. In February 2014, Sawyer Point commissioned a survey which revealed, in regard to the 2008 Addition, more of the new structure was within the setback than had been represented to the ZBA. In December 2014, the Dietzes, after learning of this discrepancy, sought injunctive relief against Sawyer Point, claiming that Sawyer Point had built within the setback without obtaining the required approvals, and requesting that the court order the removal of the unlawful construction. The New Hampshire Supreme Court concluded the trial court did not err when it sustained the ZBA and declined to weigh the cumulative effect of building within the lakefront setback throughout the Town. Moreover, relying on the evidence before it, the trial court agreed with the ZBA that there was little or no public benefit to be gained by correcting the violations. Because the Dietzes have failed to show that this finding was unreasonable or unsupported by the evidence, the trial court's decision was upheld. View "Dietz v. Town of Tuftonboro" on Justia Law

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Plaintiff T.P. appealed circuit court devisions to deny her motion to extend her domestic violence final order of protection against the defendant, B.P. Plaintiff had applied for multiple one-year extensions to a restraining order that was issued against B.P. After one such extension, the trial court issued a narrative order on January 27, 2017, finding that plaintiff had “met her burden to establish good cause to support the extension of the Restraining Order for an additional year.” A year later, believing that the restraining order had been extended to January 27, 2018, plaintiff filed for a five-year extension of the order on January 19. Defendant objected, arguing that plaintiff “failed to timely file her request for an extension under RSA 173-B” and that she could not “seek extension of a restraining order that [had] expired 35 days prior to her request.” Defendant contended that the January 2017 narrative order “simply confirmed the extension until December 15, 2017.” Plaintiff argued her motion for the five-year extension was timely filed. The New Hampshire Supreme Court fond the the trial court issued the final order of protection on December 17, 2015. That order was effective until December 15, 2016. A year later, the trial court extended the final order; by statute, that extension was necessarily for “one year after the expiration of the first order,” or until December 15, 2017. By definition, a final order of protection cannot be “extended” if it has “expired.” Therefore, for the plaintiff to timely file for a five-year extension, the plain language of the statute mandated that she file by December 15, 2017. Because the plaintiff did not do so, her request was untimely. The Court therefore affirmed denial of plaintiff's motion for a five-year extension. View "T.P. v. B.P." on Justia Law

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This appeal arose from the dismissal of a medical malpractice action filed by plaintiff Nicole Alward against defendants Emery Johnston, M.D., Gary Fleischer, M.D., Tung Thuy Nguyen, M.D., Elliot Hospital, and Southern New Hampshire Medical Center. Following a second back surgery, plaintiff consulted with two different attorneys about a potential medical malpractice claim. Ultimately, both attorneys advised the plaintiff that they were unwilling to represent her in a medical malpractice action against the treating physicians and hospitals. As a result, plaintiff believed that her potential claim had no value. Plaintiff then consulted with a bankruptcy attorney, Mark Cornell, in April 2015. She informed Cornell about her potential medical malpractice claim and that other attorneys had declined to pursue it. When Cornell drafted the plaintiff’s petition for chapter 7 bankruptcy, he did not list the potential medical malpractice claim on the plaintiff’s schedule of assets. Cornell also failed to advise plaintiff that she needed to disclose this potential claim to the bankruptcy trustee. At her ex-husband’s suggestion, in February 2016, plaintiff consulted with a third law firm, Swartz & Swartz, P.C., which agreed to represent her and pursue the medical malpractice claim. Plaintiff filed the underlying medical malpractice action against defendants in June 2016. The bankruptcy court issued its order discharging her case in July 2016. In October, defendants moved to dismiss the medical malpractice action, arguing plaintiff should have been judicially estopped from pursuing her medical malpractice claim because she failed to disclose it on her schedule of assets in the bankruptcy case. Plaintiff immediately consulted with new bankruptcy counsel, who moved to reopen her bankruptcy case to "administer a potential asset" and appoint a new trustee. The bankruptcy court granted the motion and appointed a new trustee. Plaintiff then resisted defendants' motion to dismiss, which was denied by the trial court. The trial court ultimately dismissed the case, holding plaintiff was judicially estopped from bringing her medical malpractice claim. The New Hampshire Supreme Court concluded the trial court erred in applying judicial estoppel to this matter, reversed and remanded for further proceedings. View "Alward v. Johnston" on Justia Law

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Petitioner Kyle Guillemette challenged a determination by the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS) that the notice requirements set forth in RSA 171-A:8, III (2014) and New Hampshire Administrative Rules, He-M 310.07 did not apply when Monadnock Worksource notified Monadnock Developmental Services of its intent to discontinue providing services to petitioner because that act did not constitute a “termination” of services within the meaning of the applicable rules. Petitioner received developmental disability services funded by the developmental disability Medicaid waiver program. MDS was the “area agency,” which coordinated and developed petitioner’s individual service plan. Worksource provides services to disabled individuals pursuant to a “Master Agreement” with MDS. Worksource began providing day services to the petitioner in August 2012. On March 31, 2017, Worksource notified MDS, in writing, that Worksource was terminating services to petitioner “as of midnight on April 30.” The letter to MDS stated that “[t]he Board of Directors and administration of . . . Worksource feel this action is in the best interest of [the petitioner] and of [Worksource].” Petitioner’s mother, who served as his guardian, was informed by MDS of Worksource’s decision on April 3. The mother asked for reconsideration, but the Board declined, writing that because the mother “repeatedly and recently expressed such deep dissatisfaction with our services to your son, the Board and I feel that you and [petitioner] would be better served by another agency . . . .” Thereafter, petitioner filed a complaint with the Office of Client and Legal Services alleging that his services had been terminated improperly and requesting that they remain in place pending the outcome of the investigation of his complaint. Because the New Hampshire Supreme Court concluded that the AAU’s ruling was not erroneous, it affirmed. View "Petition of Kyle Guillemette" on Justia Law

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Plaintiff Monica Anderson appealed a superior court decision dismissing her personal injury action against the defendant, the Estate of Mary D. Wood, as time-barred. Plaintiff was involved in a motor vehicle accident with a vehicle driven by Mary Wood. The complaint was mistakenly served on Wood’s daughter, who was also named Mary D. Wood. The daughter moved to dismiss on the grounds that Wood had passed away on January 22, 2015, and the plaintiff had no cause of action against the daughter, who was neither the administrator of Wood’s estate nor had any legal relationship with, or legal duty to, plaintiff. Plaintiff moved to amend her complaint to substitute the Estate of Mary D. Wood for Mary D. Wood as the defendant. Plaintiff’s motion alleged that she had filed a petition for estate administration for the Estate of Mary D. Wood and that she would serve notice of the action on the estate once the circuit court ruled on that petition. The trial court dismissed the action, ruling, sua sponte, that it did not have subject matter jurisdiction. The court noted plaintiff’s concession that she had filed the action against the wrong defendant, but concluded that it could not grant her motion to amend because there was “nothing in the record to suggest . . . that an Estate of Mary D. Wood presently exists.” The parties did not dispute that Wood died intestate and no estate had been opened immediately following her death. The court acknowledged the plaintiff’s allegation that she had sought to open an estate, but noted that plaintiff had not provided “any documentation demonstrating that the [circuit court] ever issued a grant of administration of said estate.” Accordingly, the court dismissed the action, ruling that “there is presently no legal entity that can be properly substituted for the current defendant such that this Court would possess subject matter jurisdiction over this action pursuant to RSA 556:7.” In August 2016, a certificate of appointment was issued, naming an administrator of the Estate of Mary D. Wood. Plaintiff filed her complaint in the case underlying this appeal on April 4, 2017. Defendant moved to dismiss, arguing that the statute of limitations had run on the claim. The New Hampshire Supreme Court determined plaintiff’s claim was not time-barred by RSA 508:4 at the time of Wood’s death and her injury suit was brought within three years of Wood’s death. Therefore, the action was timely. View "Anderson v. Estate of Mary D. Wood" on Justia Law

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Plaintiff Atronix, Inc. filed suit against defendant Kenneth Morris for, among other things, breach of contract, and sued defendant Scott Electronics, Inc. for tortious interference with contractual relations. Atronix appealed a superior court’s order dismissing its action for lack of standing. Morris started working at Atronix Sales, Inc. (Old Atronix) in 1982. He was promoted several times over the course of his employment, eventually becoming program manager in the sales department. That position entailed responsibility for the largest and most important of Old Atronix’s accounts. Accordingly, in 1997, Morris was required to sign a non-compete and non-solicitation agreement (the non-compete agreement), and a non-disclosure agreement. In 2011, Old Atronix merged with Atronix, Inc. (the Company). In 2016, Morris left his job with plaintiff and was hired as a general manager by Scott, one of the Company’s competitors. The New Hampshire Supreme Court concluded the terms of Morris’ non-compete agreement was conveyed to the Company according to the terms of its asset purchase agreement, it was still pertinent to the success of the merger. The Company, therefore, had standing to enforce it against Morris. View "Atronix, Inc. v. Morris" on Justia Law

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Plaintiff Conduent State & Local Solutions, Inc. (Conduent) appealed a superior court order denying Conduent’s request for a declaration that defendant New Hampshire Department of Transportation (DOT) exceeded its statutory authority, and, therefore, violated the separation of powers doctrine, by procuring from defendant Cubic Transportation Systems, Inc. (Cubic) a new system to support DOT’s electronic collection of tolls, using the “best value” method for evaluating competing bids. On appeal, Conduent argued the DOT had no statutory authority to procure the new system because procurement authority was given to the New Hampshire Department of Administrative Services (DAS). Alternatively, Conduent claimed that even if the DOT had statutory authority to procure the new system, it lacked authority to use the “best value” method for evaluating competing bids. Finding no reversible error, the New Hampshire Supreme Court affirmed denial of the declaration. View "Conduent State & Local Solutions, Inc. v. New Hampshire Department of Transportation" on Justia Law