Justia New Hampshire Supreme Court Opinion Summaries

Respondent Richard Townsend, appealed a superior court order that: (1) granted summary judgment in favor of the petitioner, Town of Barrington (Town), on its claims that respondent used his property as a campground and his barn as a dwelling without proper Town approvals; and (2) awarded attorney's fees to the Town. In September 2008, the motor home in which the respondent had been living sustained damage from an electrical fire rendering it uninhabitable. Following the fire, he moved into his barn, which he described as "adequate for emergency living quarters." The barn is a two-story structure with a workshop on the lower level and the respondent's office on the upper level. The barn has insulation, sheetrock, carpet, electricity, plumbing, two heating systems, and central air conditioning. The second floor also has restaurant kitchen equipment, a sink, a bed, a futon, a game table, and massage and fitness equipment. In March 2009, the Town sent the respondent a notice of zoning violation/cease and desist order. The respondent replied that although he had not yet completed the repairs to his fire-damaged RV, he would "move the unfinished home from the barn to appease the town." He asserted that he had moved out of the barn by April 1, 2009. The Town asserted that it sent a second letter to the respondent in May 2009, "reiterating the violations and notifying [him] that court action would be taken if he failed to come into compliance." It commenced that action in July for preliminary and permanent injunctions, civil penalties, and attorney's fees. The respondent brought a number of counterclaims alleging, among other things, bad faith by the Town's code enforcement officer and police chief. The Town moved for summary judgment. The trial court granted the Town's motion. On appeal, the respondent argued that the trial court erred in granting summary judgment on the code violation issues because "[m]aterial issues of fact existed regarding [his] use of his property and barn." He also argued that the trial court erred in awarding attorney's fees to the Town. Finding no error, the Supreme Court affirmed. View "Town of Barrington v. Townsend" on Justia Law

Petitioners J.K.S. Realty, LLC and L.J.J. Realty, LLC, appealed a superior court ruling that Respondent City of Nashua did not take their property by inverse condemnation. Petitioners are two trusts that owned as tenants-in-common a 26.8 acre parcel of land that was originally purchased in 1980 for development purposes. The northern section of the property was in the area of a planned "Board Street Parkway." In 1983, Petitioners successfully petitioned to have the property rezoned to prepare the property for sale to a developer. Since 1998, they made numerous unsuccessful attempts to sell the property or any portion thereof. The last purchase and sale agreement was entered into in 2002, for sale of the entire property with a closing in April 2004. At some point, the buyer learned that the City was unsure whether it would take the property for the parkway and asked the petitioners for an extension until he learned what the City intended to do. The petitioners decided to keep the property until it was resolved whether the City was going to take the property and, as a result, the sale did not go through. Since 2004, the petitioners have not marketed the property. However, they have harvested timber on the property for a profit and there was testimony that, unless prohibited by zoning regulations, the petitioners "would have been able to undertake" building "single-family residences, . . . conservation subdivisions, modular homes, manufactured homes, elderly housing, commercial uses, and multi-family developments." In 2009, the petitioners filed a petition for inverse condemnation, requesting that the trial court rule that the City took the property by inverse condemnation in 2004, and sought damages, including but not limited to, the fair market value of the property on that date. They alleged that the delays and continuing uncertainty regarding the parkway deprived them of all economically viable use of their property as of April 2004, when the last purchase and sale agreement fell through. Finding that the trial court properly declined to rule that the property was taken by inverse condemnation, the Supreme Court affirmed. View "J.K.S. Realty, LLC v. City of Nashua " on Justia Law

Defendant Logan Schulz appealed his convictions for being an accomplice to possession of cocaine, and an accomplice to possession of cocaine with intent to distribute. He argued that the Superior Court erred in denying his motion to suppress because the search warrant for his home was unconstitutional both on its face and in its execution. In 2010, a Haverhill Police officer went to the home that Defendant shared with his mother to serve her with a notice against trespass and harassment. While lawfully inside the home, the officer saw three long guns near a staircase. Knowing that the defendant's mother was a convicted felon and prohibited from possessing firearms, the officer sought a warrant to search the home. Early in the search, they learned that the three guns near the staircase were, in fact, "BB" guns and were not unlawful for the defendant's mother to possess. The officers then continued the search and asked the defendant whether there were any additional guns in the house. The defendant informed them that he had a muzzle loader rifle and took them to his bedroom to show it to them. In the room, the officer observed a lock box large enough to contain a handgun but too small to contain a long gun, and told the defendant to open it, noting that the officers could open it by force if necessary. Both the defendant and his mother protested on the grounds that the police had no reason to believe they had a handgun. The defendant's mother then became upset and admitted that the lock box contained cocaine and money. Upon review, the Supreme Court concluded that the police were required to discontinue their search after discovering that the guns they had believed to be firearms were, in fact, BB guns. The warrant contained no other facts upon which the police might have relied in continuing to believe that the search was justified. As a result, the officers' continued search of the defendant's home under authority of the warrant was unconstitutional. View "New Hampshire v. Schulz" on Justia Law

Plaintiffs Kenneth Bond and Deborah Thibault, on behalf of themselves and a class of others similarly situated, appealed a superior court order granting summary judgment to the defendants, the City of Manchester and Paul Martineau in his official capacity as Commissioner of the Manchester Welfare Department (collectively, the City). In January 2010, the plaintiffs applied for general assistance from the City pursuant to RSA chapter 165. See RSA 165:1, I (2002). On February 24, 2010, the City approved $140.00 per week in rental assistance. On March 18, 2010, the City suspended this assistance for seven days because of the plaintiffs' failure to provide certain documentation, including that which related to $30 the plaintiffs used to buy gas for a vehicle. The City lifted this suspension on March 25, 2010, noting that the plaintiffs were "unable to show compliance with the $30 purchase of vehicle gas that [they] stated [they] had previously purchased through an alternate financial resource." On April 9, 2010, the City revoked an April 8 voucher and denied the plaintiffs all assistance for six months because they had misrepresented information related to their vehicle. The plaintiffs petitioned the superior court to enjoin the City from suspending their assistance. Because the Supreme Court held that RSA 165:1-b and the Guidelines pertaining to rental assistance actually conflict, the Court reversed the trial court's grant of summary judgment in favor of the City and remanded the case for further proceedings. View "Bond v. Martineau" on Justia Law

Defendants Robert Christy, Christy & Tessier, P.A., Debra Johnson, and Kathy Tremblay, appealed a superior court decision that rescinded a professional liability policy issued by Plaintiff Great American Insurance Company (GAIC), to the law firm of Christy & Tessier, P.A. Robert Christy (Christy) and Thomas Tessier (Tessier) were partners in the firm, practicing together for over forty-five years. In 1987, Frederick Jakobiec, M.D. (Jakobiec) retained Tessier to draft a will for him. In 2001, Jakobiec's mother, Beatrice Jakobiec (Beatrice), died intestate. Her two heirs were Jakobiec and his brother, Thaddeus Jakobiec (Thaddeus). Jakobiec asked Tessier, who was Beatrice's nephew, to handle the probate administration for his mother's estate. From 2002 through 2005, Tessier created false affidavits and powers of attorney, which he used to gain unauthorized access to estate accounts and assets belonging to Jakobiec and Thaddeus. Litigation ensued; two months after Tessier and Jakobiec entered into the settlement agreement, Christy executed a renewal application for professional liability coverage on behalf of the law firm. Question 6(a) on the renewal application asked: "After inquiry, is any lawyer aware of any claim, incident, act, error or omission in the last year that could result in a professional liability claim against any attorney of the Firm or a predecessor firm?" Christy's answer on behalf of the firm was "No." The trial court found that Christy's negative answer to the question in the renewal application was false "since Tessier at least knew of Dr. Jakobiec's claim against him in 2006." On appeal, the defendants argued that rescission was improper because: (1) Christy's answer to question 6(a) on the renewal application was objectively true; (2) rescission of the policy or denial of coverage would be substantially unfair to Christy and the other innocent insureds who neither knew nor could have known of Tessier's fraud; and (3) the alleged misrepresentation was made on a renewal application as opposed to an initial policy application. GAIC argued that rescission as to all insureds is the sole appropriate remedy given the material misrepresentations in the law firm's renewal application. Upon review, the Supreme Court held that the trial court erred as a matter of law in ruling that Tessier's knowledge is imputed to Christy and the other defendants thereby voiding the policy ab initio. The Court made no ruling, however, as to whether any of the defendants' conduct would result in non-coverage under the policy and remanded for further proceedings. View "Great American Insurance Company v. Christy" on Justia Law

Defendant Jonathan Ball appealed his conviction following a bench trial on stipulated facts one felony count of possessing child sexual abuse images (child pornography). On appeal, he argued that the Superior Court erred when it denied his motion to suppress evidence derived from the search of his home computer. Finding no abuse of discretion, the Supreme Court affirmed. View "New Hampshire v. Ball" on Justia Law

The State appealed a superior court order that dismissed charges filed against Defendant Burton Hollenbeck, Jr. because it determined that the statute upon which they were based violated Defendant's state and federal substantive due process rights. Defendant was a licensed psychologist who provided services to the complainant in 2007. Less than a year after the therapy ended, the two became sexually involved. In April 2010, defendant was charged with thirty counts of aggravated felonious sexual assault (AFSA) for engaging in sexual penetration with the complainant between February 1, 2008, and December 9, 2008. The indictments alleged that by engaging in sexual penetration with the complainant "within one year of the termination of their therapeutic relationship," defendant "act[ed] in a manner which is not professionally recognized as ethical," thereby violating RSA 632-A:2, I(g)(1). In December 2010, defendant moved to dismiss the indictments, arguing, inter alia, that RSA 632-A:2, I(g)(1) violated his state and federal rights to substantive due process because it "criminalizes the private sexual conduct of consenting adults." The trial court agreed, and this appeal followed. Because defendant did not meet his burden of proving that RSA 632-A:2, I(g)(1) was not rationally related to a legitimate governmental purpose in all circumstances, the Supreme Court concluded after its review of the case that his facial challenge failed. The Court reached the same result under the Federal Constitution as it did under the State Constitution because the Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. View "New Hampshire v. Hollenbeck, Jr." on Justia Law

Respondent George W. LaRocque (Father) appealed a circuit court order that found in contempt for failure to pay child support, calculating his arrearages to be $102,845.52 as of December 20, 2010, and modifying his child support obligation with an effective date of January 7, 2011. The Father and Petitioner Mary Beth LaRocque (Mother) divorced in February 2000. The divorce decree incorporated their permanent stipulation and uniform support order, and required the Father to pay child support for their two children, alimony for six years, and continue to provide medical coverage for the children. The Mother was awarded the marital homestead, but was required to execute a promissory note and a mortgage in favor of the Father to be paid upon sale of the property or the youngest child reaching age twenty-two. The Father subsequently remarried and his second wife died in October 2010. Following her death, he received $500,000 in life insurance proceeds. On November 8, 2010, the Mother filed a petition for contempt, alleging that the Father had failed to pay the full child support ordered, and had unilaterally reduced his child support payment when their oldest child turned eighteen. The Father objected, arguing that the parties had agreed to waive child support arrearages and to modify child support. He also moved to modify his child support obligation. After a hearing, the trial court found that the parties never entered into such an agreement and held the Father in contempt. An issue on appeal was the characterization of the insurance proceeds Father received, and whether that money could be considered income when determining future modifications of child support. The Supreme Court affirmed in part, vacated in part and remanded the case for a determination as to how the receipt of the life insurance proceeds affected the Father's support and arrearage obligations. View "In the Matter of LaRocque " on Justia Law

Petitioners the City of Concord, the County of Belknap, and Mascenic Regional School District, appealed superior court order that denied their motion for summary judgment and granted summary judgment in favor of the State. The New Hampshire Retirement System (NHRS) is a tax qualified pension trust for certain public employees. The petitioners, on behalf of themselves and similarly situated municipalities, counties, and school districts, filed a petition for declaratory and injunctive relief, and damages in superior court, naming the State of New Hampshire and NHRS as respondents. The petition alleged that section 52 was an unfunded mandate that violates Part I, Article 28-a of the New Hampshire Constitution. Both the petitioners and the State moved for summary judgment. NHRS took no position on the constitutionality of section 52, but filed a separate motion for summary judgment, arguing that it was an improper party and that the New Hampshire Constitution and RSA 100-A:15, I, forbid it from using NHRS trust funds as the source of any monetary compensation to the petitioners. The trial court denied the petitioners' motion for summary judgment, granted the State's motion for summary judgment on the merits, and, accordingly, did not reach NHRS's motion. The petitioners appealed, arguing that the trial court erred in granting the State's motion for summary judgment, and maintaining that section 52 is an unconstitutional unfunded mandate. The Supreme Court affirmed: "[t]here is also no indication that the amendment was designed to delegate to local governments effective control over the establishment of the state budget and appropriations. Indeed, to interpret the amendment in such fashion would bring it into conflict with Part II, Article 2 of the State Constitution, which confers 'the supreme legislative power' of the State on the House of Representatives and the Senate. Without a far more explicit indication that the people intended such a substantial alteration of fundamental legislative power, we decline to read Article 28-a in this fashion." View "City of Concord v. New Hampshire" on Justia Law

Defendant Saad Moussa appealed his convictions, and sentences on three counts of stalking entered following a jury trial in Superior Court. In 2005, the Rockingham County grand jury returned three indictments against the defendant, each alleging a separate incident of stalking the victim, to whom he had been married for approximately eleven years. According to the victim's testimony, they were divorced at the time of trial. Each charged incident involved the defendant allegedly sending a letter to the victim "after having been served with or otherwise provided notice of a protective order issued by the Salem Family Court on 12/10/04, that prohibited him from having contact with [her]." The defendant argued on appeal to the Supreme Court that the trial court erred in: (1) requiring him to choose between self-representation and representation by a lawyer he wanted to dismiss; (2) making certain evidentiary rulings; (3) denying his request for counsel at sentencing; and (4) imposing felony sentences. Finding no error in the Superior Court record, the Supreme Court affirmed. View "New Hampshire v. Moussa" on Justia Law