Articles Posted in Civil Procedure

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Respondent Patrick Roland appealed a New Hampshire Department of Safety (Department) decision requiring the installation of an ignition interlock device in his vehicle as a condition of restoration of his driver’s license. He pled guilty to misdemeanor DWI, after which his license was revoked for two years, retroactive to April 2016. In July 2016, the Department issued a notice of hearing to review respondent’s driving record. Review of respondent’s driving history had revealed that he had multiple DWI convictions. Roland argued on appeal: (1) the findings of fact in the hearing examiner’s initial report were insufficient to support the hearing examiner’s determination that “the safety of [Roland] and of other users of the highway would be enhanced” by the installation of a device; and (2) the issue of whether to require the installation of an interlock device was not “ripe” for consideration, and therefore his request for a new hearing should not have been denied. To the latter point, respondent contended a hearing “should properly be performed closer in time to when [he] will actually be eligible for restoration of his driver’s license,” and that a later hearing would provide him with an “opportunity to submit evidence that could assist in demonstrating, and even establishing, that he will not pose a danger to himself or others.” Finding the evidence presented was sufficient to support the Department’s decision to require the device, the New Hampshire Supreme Court affirmed. The Court did not reach respondent’s second issue. View "Appeal of Patrick Roland" on Justia Law

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In consolidated appeals, petitioner Emily Sanborn, and respondent Timothy Sanborn, appealed circuit court orders that ruled on Timothy’s post-divorce motions. Emily argued the trial court erred by ordering that respondent was entitled to continuation coverage under her dental insurance plan pursuant to RSA 415:18, XVI (2015). Timothy cross-appealed, arguing that the court erred by denying his request for attorney’s fees. Emily argued that because Timothy received dental coverage pursuant to a 2013 amendment to the divorce decree retroactive from April 2011 to April 2014, he received all of the coverage that he was entitled to under the statute. The New Hampshire Supreme Court agreed with this contention and reversed the circuit court as to this point. The Supreme Court affirmed with respect to denial of attorney fees. View "In the Matter of Emily Sanborn and Timothy E. Sanborn" on Justia Law

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Claimant Edmund Hibbard, Esq., Administrator of the Estate of Beatrice Jakobiec (Estate), appealed a New Hampshire Bar Association Public Protection Fund Committee (PPFC) decision finding that the Estate was entitled to reimbursement from the Public Protection Fund (PPF) in an amount significantly less than that which the Estate claimed was stolen by former attorney Thomas Tessier. Beatrice Jakobiec passed away in 2001, leaving two sons, Frederick Jakobiec, M.D. and Thaddeus Jakobiec, Jr., as heirs. In 2002, Tessier was appointed to administer the Estate. The value of the Estate for probate purposes, as determined by an ADO auditor was $576,074.03. The auditor concluded that “[t]he assets included in the Estate by Attorney Tessier were valid and belonged in the Estate valuation,” but that Tessier failed to include additional assets owned by Beatrice at the time of her death. The auditor concluded that it appeared Tessier took the proceeds from certain certificates of deposit and other checks “for his own purposes.” In addition, the auditor detailed Tessier’s misappropriation, using fraudulent powers of attorney, of funds belonging to Frederick individually or held in trust for Thaddeus, who has been blind since birth. In 2009, the Estate filed a claim alleging a loss consisting of $208,798.95 in stolen assets (the Stolen Assets), $96,500.00 in stolen legal fees, and $99,531.81 in lost income, but the PPFC only reimbursed the Estate half of the total amount. The Estate argued the PPFC erred by: (1) reducing the amount of its claim based upon an “earlier finding that Thaddeus Jakobiec . . . had received his full distribution from the Estate”; (2) reducing the Estate’s claim for stolen legal fees by the amounts of certain excluded checks; (3) finding that the Estate’s claim against the PPF included a claim for lost income; and (4) “applying credits for prior recoveries by the Estate for the gross amount of those recoveries rather than the net amount of the recoveries.” The New Hampshire Supreme Court found "nothing prohibiting a claimant from being made whole, if other sources allow it, and we can think of no persuasive policy reason for preventing a claimant from utilizing other sources to obtain a full recovery." Though the Court found no abuse of discretion with respect to the exclusion of expenses of recovery, the Court reversed as to the other amounts lost. View "Appeal of Estate of Beatrice Jakobiec" on Justia Law

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Respondent Arthur Sweatt appealed a circuit court order denying, in relevant part, his motions to reconsider certain orders in his divorce from Patricia Sweatt. He argued the court erred: (1) in denying his motion to abate the divorce; (2) in granting the motion of petitioner Kathleen Paine, administrator of the estate of Patricia Sweatt, to amend by substitution; (3) in distributing the marital property more than six months after the dissolution of the marriage; (4) in finding him, but not Paine, to have been non-compliant with court rules; (5) by denying him due process and equal protection of the law; and (6) in its valuation of the marital real property. Finding no reversible error, the New Hampshire Supreme Court affirmed the circuit court’s judgment. View "In the Matter of Patricia Sweatt & Arthur Sweatt" on Justia Law

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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