Articles Posted in Civil Procedure

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In 2013, 15-year-old Sophia Christen attended a carnival operated by defendant Fiesta Shows, Inc. in a fenced-in area of the Ocean State Job Lot parking lot. After Sophia and her friends shared cotton candy, they began searching for a bathroom to wash their sticky hands; the carnival lacked public facilities with running water. The girls decided to leave the carnival and search for a bathroom. Although there were two nearby restaurants located on the same side of Manchester Road as the carnival, the girls decided to cross Manchester Road to go to a Burger King. At the intersection of the Ocean State access road and Manchester Road, the girls found that the pedestrian crossing signal was inoperative, but they decided to cross the road without the walk signal. While crossing the road, Sophia was struck by a vehicle and suffered fatal injuries. Fiesta had contacted the Derry Police Department to arrange for the presence of officers to provide “general public safety” at the carnival. Unlike organizers of other large events in Derry, Fiesta did not instruct the officers to engage in traffic control, pedestrian assistance, or other similar duties. One day after the accident, at the suggestion of the Derry Police Department, Fiesta arranged for additional police coverage to direct traffic and assist with pedestrian crossing on Manchester Road. Two days after the accident, two Fiesta employees reported to a Derry police officer investigating the signal that “they crossed the crosswalk regularly and had never seen the pedestrian crossing signal activate.” Plaintiff Elaine Christen, as administrator of Sophia’s estate, brought a wrongful death action against Fiesta, claiming negligence and also alleging that Fiesta’s conduct was wanton and reckless, entitling her to enhanced compensatory damages. Fiesta successfully moved for summary judgment, asserting that it violated no duty of care owed to Sophia. Plaintiff appealed, but finding no reversible error, the New Hampshire Supreme Court affirmed. View "Christen v. Fiesta Shows, Inc." on Justia Law

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Defendant Arch Specialty Insurance Company (Arch) appealed multiple superior court orders granting summary judgment to defendants Triage Staffing, Inc. (Triage), Exeter Hospital, Inc. (Exeter), and American Healthcare Services Association (AHSA) on their petitions for declaratory judgment, and denying Arch’s cross-motion for summary judgment. The court ruled that Arch was required to defend and indemnify Triage, Exeter, and AHSA, pursuant to two insurance policies that Arch issued to Triage, for claims asserted against the defendants by patients of Exeter who contracted Hepatitis C (Exeter Patients). On appeal, Arch argued the trial court erred in finding inapplicable certain exclusions found in the insurance policies and in determining that the claims involved multiple occurrences under the policies. After review, the New Hampshire Supreme Court reversed the superior court’s grant of summary judgment in favor of Triage and Exeter regarding Arch’s duty to defend and indemnify them pursuant to the general liability coverage forms; the Court reversed the trial court’s grant of summary judgment in favor of Exeter regarding Arch’s duty to defend and indemnify it pursuant to the umbrella coverage forms; reversed in part and vacated in part the trial court’s grant of summary judgment in favor of Triage regarding Arch’s duty to defend and indemnify it pursuant to the umbrella coverage forms, and remanded all matters to the trial court for further proceedings. View "Massachusetts Bay Insurance Company v. American Healthcare Services Association" on Justia Law

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Plaintiff Daniel Barry appealed a jury verdict in favor of defendants the New Hampshire Department of Health and Human Services (department) and William Fenniman, Jr., the director of the Division of Juvenile Justice Services during the relevant time period. Plaintiff worked as a youth counselor at the Sununu Youth Services Center (SYSC) until defendants terminated him, claiming that he had used excessive force against a youth resident and had failed to file a report regarding the incident. After the Personnel Appeals Board (PAB) reinstated him, plaintiff filed suit at issue here, alleging a claim for wrongful termination against the department, and a claim for interference with plaintiff’s right to freedom of expression under RSA chapter 98-E against the department and Fenniman in his official and individual capacities. On appeal, plaintiff argued the superior court erred when it: (1) declined to give collateral estoppel effect to the PAB’s findings that plaintiff had not used unreasonable or excessive force against the resident or violated SYSC policies; and (2) allowed defendants’ expert to testify regarding the reasonableness of plaintiff’s use of force. Defendants cross-appealed, arguing the superior court erred when it: (1) concluded that an employee protected by state personnel laws and a collective bargaining agreement could bring a claim for wrongful termination; and (2) declined to make factual findings to resolve the defendants’ motion to dismiss upon the ground of sovereign immunity. The New Hampshire Supreme Court affirmed the trial court’s rulings with respect to the issues raised by plaintiff in his appeal. As a result, the Court did not address the issues raised in defendants’ cross-appeal. View "Barry v. New Hampshire Department of Health &Human Services" on Justia Law

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Plaintiffs Wayne and Ruth Ross, trustees of the Wayne Ross Revocable Trust and the Ruth Ross Revocable Trust, respectively, appealed a superior court order in favor of defendants Donald Ross and Rossview Farm, LLC (the LLC). Plaintiffs contested findings that the parties entered into a lease for the plaintiffs’ lifetimes and that they had no right to evict the defendants pursuant to RSA 540:2, II(d) or (e) (2007). The trial court found that plaintiffs conceded that a June 23, 2006 document satisfied the statute of frauds because, in their post-trial memorandum, plaintiffs explained their position that the June 23, 2006 document “is a writing signed by all the parties that states the terms of the parties’ agreement. This document satisfies the statute of frauds and governs their relationship.” The “clear” language of the June 23, 2006 document, plaintiffs posited, created a yearly lease. However, plaintiffs also argued in the post-trial memorandum that defendants’ introduction of parol evidence of the parties’ intent to create a perpetual lease violated the statute of frauds because “the intent of the parties to create a perpetual lease must be clear from the face of the document and there must be a document to satisfy the statute of frauds.” Thus, plaintiffs did not concede that the June 23, 2006 document satisfied the statute of frauds for all purposes; instead, they contended that it “satisfies the statute of frauds” if the document was read to create a yearly lease. The New Hampshire Supreme Court vacated and remanded, finding the trial court’s finding that plaintiffs conceded the issue lacked evidentiary support, and concluded plaintiffs did not waive their statute of frauds argument by concession. View "Ross v. Ross" on Justia Law

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During a regularly-scheduled meeting, the SAU’s Board voted to go into a nonpublic session to discuss two topics: the superintendent’s evaluation, and “emergency functions.” While in nonpublic session, the Board voted to seal the minutes of the meeting. In June 2016, plaintiff David Taylor asked the executive assistant to the superintendent to send him the minutes of the May 12 nonpublic session by e-mail. She informed plaintiff that she could not provide him with those minutes because they were sealed. A month later, plaintiff e-mailed the executive assistant again, asking her to forward to him, by e-mail, a June 22 e-mail regarding the nonpublic session that had been sent to the Board. The executive assistant again denied plaintiff’s request, referring him to the SAU’s Right-to-Know procedure, requiring the public seeking electronic records to come to the SAU’s offices with a thumb drive in sealed, original packaging or to purchase a thumb drive from the SAU at its actual cost. In August, plaintiff filed a complaint in which he alleged the SAU had violated RSA chapter 91-A by voting in closed session to seal the minutes of the nonpublic session of the May 12 meeting and by refusing to e-mail the records he requested. He also challenged the SAU’s practice of charging 50 cents per page for hard copies of public records. Plaintiff sought: invalidation of the vote to seal the minutes of the nonpublic session; release of the sealed minutes; a declaration that the SAU’s thumb drive policy violated RSA chapter 91-A; an order requiring transmission of the requested records to him by e-mail; other injunctive relief; and litigation costs. After review, the trial court found the SAU’s policy for transmitting public records complied with RSA chapter 91-A. Because of the SAU’s decision to keep sealed only the portion of the nonpublic session with respect to emergency functions, the trial court also found that the plaintiff’s challenge of the SAU’s action was “moot in all but one respect,” specifically, the single redacted sentence of the superintendent’s evaluation. On this issue, the court ordered that the SAU provide it with an un-redacted copy of the public minutes for in camera review. The trial court also determined that petitioner’s lawsuit had been necessary to ensure the Board’s compliance with RSA 91-A:3, and, therefore, awarded him litigation costs. However, the trial court ruled that plaintiff had no standing to challenge the cost of paper copies, because there was no evidence that he had asked for, or paid for, such copies. The trial court also found that the Board did not violate RSA 91-A:3, III by producing two sets of minutes for the May 12 meeting, one containing the public portion and the other the sealed portion. Finally, the court declined to enter the injunctive relief sought by the plaintiff. Finding no reversible error in the trial court’s judgment, the New Hampshire Supreme Court affirmed. View "Taylor v. School Administrative Unit #55" on Justia Law

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This case arose from an accident at a pond owned by the defendant, the Town of Chester, where Christopher Kurowski suffered injuries after being struck by a person using a rope swing attached to a tree on the shore. Plaintiff, Jay Kurowski, as father and next friend of his minor son, Christopher, appealed a superior court order dismissing his negligence and intentional tort claims against the Town, as barred by the recreational use immunity statutes. The New Hampshire Supreme Court concluded the Town was entitled to immunity under RSA 212:34, and affirmed. View "Kurowski v. Town of Chester" on Justia Law

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Defendant Latvian Lutheran Exile Church of Boston and Vicinity Patrons, Inc. (Patrons), appealed a superior court order declaring that it did not have an easement to use a private road to access Lake Massasecum. Plaintiff Carolyn Carlson, Trustee of the Carolyn J. Carlson Living Trust (Carlson), cross-appealed the trial court’s denial of Carlson’s petition to quiet title. Because the New Hampshire Supreme Court found Carlson lacked standing to pursue both her actions, it affirmed the trial court’s ruling that she lacked standing on her petition to quiet title, vacated the trial court’s grant of declaratory relief, and remanded. View "Carlson v. Latvian Lutheran Exile Church of Boston" on Justia Law

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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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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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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