Justia New Hampshire Supreme Court Opinion Summaries

Petitioner Property Portfolio Group, LLC (PPG) appealed a superior court order which upheld a decision of the planning board of Respondent Town of Derry to grant applicant MTM Realty, LLC a waiver from a provision of the town's site plan regulations. Pursuant to the town’s site plan regulations, solid waste storage areas are required to be at least twenty-five feet from any property boundary. In 2010, as part of an application for further site plan determination, MTM submitted a request for a waiver from this requirement, seeking permission to move its dumpsters closer to its boundary with PPG which was ultimately granted. PPG and another abutter appealed to superior court. Finding no error in the superior court's judgment, the Supreme Court affirmed the decision, concluding "no extended consideration" of this case was required. View "Property Portfolio Group, LLC v. Town of Derry" on Justia Law

Petitioner Kilnwood on Kanasatka Condominium Unit Association, Inc. (Association) appealed a superior court's decision that dismissed its petition to change the ownership form of twenty-nine units in a residential subdivision from condominiums to single-family simple lots. In 2010, the Association members considered reforming the Declaration to convert it from a condominium association to single-family homes, but they could not reach the unanimous vote required by the Declaration to do so. Unable to reach an accommodation with the minority members, Perry Smith, Andy and Jill Belliveau, and Rob and Candy Baker, the Association petitioned the superior court to reform the Declaration. The minority members, who are the respondents in this case, cross-petitioned the court to declare that Kilnwood remain a condominium association, and moved to dismiss. The Association argued that the Declaration should have been reformed because it was not intended to create a condominium, but rather a subdivision of single-family residential lots. Finding that the fact that large majority of the Association’s members no longer found it desirable to own their property as condominiums did not alter the underlying contractual requirement contained in the Declaration, that any amendment to “matters . . . adjudicating the ownership interest in common areas” must be approved by unanimous vote. The failure of one local realtor to list the homes for sale in Kilnwood as condominiums was irrelevant to the inquiry into the intent of the Developer when it created Kilnwood as a condominium association or when Association members purchased condominium units within Kilnwood. Accordingly, the Supreme Court affirmed the superior court in dismissing the Association's petition. View "Kilnwood on Kanasatka Condominium Unit Association, Inc. v. Smith" on Justia Law

Petitioner Nicholas Bosonetto appealed a superior court decision to grant summary judgment in favor of Respondent Town of Richmond. The decision dismissed his appeal of a decision made by the Town's Zoning Board of Adjustment (ZBA). Petitioner and his wife own property in Richmond upon which are several mobile homes. Petitioner submitted a building permit application to replace one of the mobile homes with a new three-bedroom structure at a different location on the property. The Board of Selectman (BOS) denied the application based on the fact that the property is on a private road, and the Town did not have provisions for building permits on private roads. At its deliberation, the ZBA determined that Petitioner had a vested right to use the existing structures because building permits were issued for them, but that right did not permit him to replace one of the existing structures with a different "footprint" and at a different location on the property. Petitioner filed a declaratory action at the superior court, and requested a statutory appeal of the ZBA decision. Finding the trial court did not abuse its discretion and affirmed the trial court's dismissal of Petitioner's case. View "Bosonetto v. Town of Richmond " on Justia Law

Plaintiff Lebanon Hangar Associates, Ltd. (LHA) appealed a superior court decision that vacated an arbitrator's decision that it was not required to pay taxes under a lease agreement with Defendant City of Lebanon. LHA leased property at the City's airport. Although the terms of the lease require LHA to pay "taxes . . . lawfully levied or assessed, "between 1991 and the first half of 2006, the City did not tax LHA on the value of the land itself, limiting its assessment of taxes to the value of the buildings. In October 2006, the City assessed a tax upon the value of the land, thereby increasing the total valuation subject to taxation. After unsuccessfully requesting an abatement from the City, LHA petitioned the superior court, pursuant to RSA 76:17 (2003), to rule that the leasehold is not taxable. LHA subsequently moved to amend its petition to add a claim that the City breached the lease by demanding the payment of taxes. In response, the City invoked an arbitration clause in the lease. In April 2009, the arbitrator issued the first of two decisions, concluding that, while the written lease unambiguously allows the City to assess a tax upon the value of LHA’s leased land, other evidence submitted by LHA could serve as the basis for reforming the lease based upon mutual mistake. At the next hearing, LHA asserted its reformation argument over the objections of the City, which contended that the arbitrator’s authority was limited to deciding the meaning of the four corners of the lease agreement. After reviewing the evidence, the arbitrator issued a second, and final, decision in March 2010, concluding that LHA "is not and has not been obligated to pay real estate taxes to the City" under the lease. The issue on appeal to the Supreme Court was whether the arbitrator exceeded the scope of his authority by reforming the lease based upon mutual mistake. Upon review, the Supreme Court agreed with LHA that the arbitrator did not exceed the scope of his authority in this case, and reversed the superior court's decision, and remanded the case for further proceedings. View "Lebanon Hangar Associates, Ltd. v. City of Lebanon " on Justia Law

Plaintiffs Marc and Laurie Brown appealed a superior court order that granted summary judgment to Defendant Concord Group Insurance Company in their insurance coverage action. In 2005, Plaintiffs purchased a house from then-owner Michael Rogers. Two years later, they discovered water leaking into the house near a sliding glass door. They contacted Eugene Spencer, the person who built the house, to repair the problem. In 2009, Plaintiffs again observed water leaking into the house near the same sliding glass door. This time they contacted Daniel Lewis to repair the problem. Lewis later testified that damage was caused by leaks Spencer did not discover during his repair, but probably would have discovered had he removed all of the siding on the wall. The damage required extensive repair work. Concord Group insured Spencer. His policy did not cover "property damage" to his work "arising out of [his work] or any part of [his work]." Plaintiffs argued that the policy provided coverage because Spencer negligently repaired their house in 2007, and the damage in 2009 would not have occurred but for his negligence. Upon review of the policy in question, the Supreme Court concluded it was error for the trial court to grant Concord Group summary judgment because what caused the damage (either the 2003 or the 2007 work) was a genuine issue of material fact as to whether the policy provided coverage in this case. The case was reversed and remanded for further proceedings. View "Brown v. Concord Group Ins. Co. " on Justia Law

James McClammer, Jr., Trustee of the Profit Sharing Plan of the Connecticut Valley Environmental Services, Inc., appealed a superior court order that ruled in favor of Michael and Marie O'Hearne on the parties' crosspetitions to quiet title and for injunctive relief. The parties owned adjoining lots in the vicinity of the Little Sugar River in North Charlestown. Historically, both lots were part of a larger parcel bisected by the river, which generally ran in an east-west direction at that point. McClammer acquired title to his lot in 1999 from the estate of Louise Hinchliffe, who had acquired her title upon the intestate deaths, in 1944 and 1957, of the grantees of a 1929 deed. The property description in McClammer’s deed was identical to the description in the 1929 deed. The dispute in this case arose when McClammer began removing trees from the strip of land lying to the north of several monuments and to the south of the river. The O'Hearnes filed a petition to enjoin McClammer from trespassing on their land, asserting that the parties' common boundary was established by the monuments. McClammer, in turn, filed his own petition to quiet title, claiming that his title ran either to the "so-called thread or center of the river," or to its low water mark on "the south side of [its] main northerly channel." McClammer later amended his petition, asserting that his title extended to the high water mark on the northern bank of the river, and included a 0.15 acre piece of land to the north of the river where, he claimed, the "mill spot" referenced in a 1790 deed was located. In their answers to McClammer’s petition and amended petition, the O'Hearnes claimed not only that they had record title to the areas in dispute, but that they had also acquired title by adverse possession and the doctrine of boundary by acquiescence. The trial court consolidated the matters, and following a trial on the merits, ruled in favor of the O'Hearnes. McClammer moved for reconsideration, arguing that the trial court had improperly raised the statute of limitations sua sponte. Additionally, he challenged the trial court's rulings on the merits, arguing that it had erroneously found that the O'Hearne chain of title referenced the monuments, that it improperly construed the relevant deeds, and that it ignored other evidence inconsistent with a finding of adverse possession. The trial court denied the motion, and McClammer timely appealed. After review, the Supreme Court affirmed: "[t]o the extent the trial court incorrectly found that the O'Hearne chain of title referenced the monuments, this finding cannot have affected the outcome of the case since the trial court's findings and rulings relative to Hinchliffe's acquiescence in the boundary are supported by the record and compel the result reached by the trial court." View "O'Hearne v. McClammer, Jr." on Justia Law

Intervener Parade Residence Hotel, LLC appealed a superior court order that vacated and remanded a decision of the Zoning Board of Adjustment (ZBA) of the City of Portsmouth that upheld the City Planning Board's approval of Parade's application to amend its previously approved site plan. Parade's property abuts Plaintiff Harborside Associates, LP's property. In 2008, the Board approved Parade's application to construct a five-story building that included a hotel, restaurant and retail space. Parade began construction in 2009. The City adopted a new zoning ordinance later that year to become effective in 2010. The terms of the new ordinance changed those that were in effect when Parade was granted its site plan. When Parade applied for an amendment to its site plan, Harborside objected. Following a hearing, the Board approved the application without requiring Parade to comply with the new ordinance. Harborside appealed to the ZBA, who subsequently denied Harborside's objection. Harborside appealed, and the superior court vacated the ZBA's decision, finding that Parade presented a "major change" in its site plan requiring compliance with the changed ordinance. Upon review, the Supreme Court concluded the superior court did not err in arriving at its decision, and affirmed. View "Harborside Associates, L.P. v. City of Portsmouth" on Justia Law

The New Hampshire Department of Revenue Administration (DRA) appealed a superior court order that reversed its decision assessing a real estate transfer tax against Petitioners Say Pease, LLC and Say Pease IV, LLC. Two International Group, LLC (TIG) is a real estate holding company. It owned a ground lease on property near Pease International Tradeport that it wanted to use to secure a mortgage loan. To obtain the loan, TIG’s prospective lender required that TIG, and all of its members, be "single purpose bankruptcy remote entities." To comply with the lender’s requirement, the members of Say Pease formed Say Pease IV, a new limited liability company (LLC) with the same members. Say Pease IV’s LLC agreement provides that it was "formed for the sole purpose of being a Managing Member and Member of [TIG]" and was not authorized "to engage in any other activity[,] business or undertaking so long as [TIG] shall be indebted under any mortgage or other securitized loan." Say Pease’s interest in TIG was transferred to Say Pease IV, and Say Pease IV replaced Say Pease as TIG’s managing member. As a result of these transactions, Say Pease IV owned a 47.5% interest in TIG as a sole purpose remote bankruptcy entity, Say Pease held no interest in TIG, and TIG obtained the loan. Based upon this transfer, DRA issued notices assessing the real estate transfer tax against Say Pease and Say Pease IV. After appealing unsuccessfully through DRA’s administrative appeal process, Say Pease and Say Pease IV appealed to the superior court. The parties filed cross-motions for summary judgment, and the trial court reversed DRA's order, ruling that the transfer at issue was not a "[c]ontractual transfer," RSA 78-B:1-a, II (2003), and, therefore, the real estate transfer tax did not apply. Upon review, the Supreme Court found that the parties did not employ a business entity as a shield for an otherwise taxable exchange of value for an interest in property. Instead, those that executed Say Pease IV’s LLC agreement sought to maintain TIG’s original ownership while placing it in a suitable financing vehicle; the promises exchanged related to the creation of the financing vehicle, Say Pease IV, not the subsequent property transfer. Thus, the substance of the transaction here failed to create a bargained-for exchange because there was no "exchange of money, or other property and services, or property or services valued in money for an interest in real estate." View "Say Pease IV, LLC v. New Hampshire Dept. of Rev. Admin. " on Justia Law

Respondents the Commissioner of the New Hampshire Banking Department and the New Hampshire Banking Department (collectively, the Department), appealed an order of the Superior Court that permanently enjoined the Department from pursuing an administrative proceeding against Petitioner Jeffrey Frost on the ground that the Department lacked subject matter jurisdiction. Petitioners Frost, Chretien/Tillinghast, LLC, and Frost Family, LLC, cross-appealed, arguing that the trial court erred by denying their request for attorney’s fees. Frost is a member and designated manager of Chretien/Tillinghast, LLC (Chretien), and a member of Frost Family, LLC (Frost Family). Chretien and Frost Family (collectively, the LLCs) are New Hampshire limited liability companies organized for the purpose of real estate acquisition, holding, and development. The underlying dispute arose as the result of two seller-financed real estate transactions, one conducted by Frost Family and the other by Chretien. After both instances of seller-financing, Petitioner submitted a loan originator license application to the Department. At the time the administrative proceedings were initiated, the Department notified Petitioner that he could request a hearing with the Department. Petitioner did not file such a request. Instead, all Petitioners initiated a declaratory judgment proceeding in superior court, which included a request for a temporary restraining order. The petitioners contended that Respondents lacked subject matter jurisdiction to proceed against Frost and violated the State Constitution's prohibition against retrospective laws by seeking to impose a $25,000 fine for each alleged violation. After a hearing, the trial court granted the preliminary injunction, concluding that "[w]hile the [Department] may have jurisdiction over Frost because he is now a loan originator, it [could] take no action against him based on the September 2008 or the March 2009 transactions." Further, the trial court concluded that since the Department "may not impose any penalties on Frost," it did not need to consider the issue of the retrospective nature of the sanctions. Upon review, the Supreme Court agreed that the Department lacked subject matter jurisdiction over the matter and affirmed the superior court's judgment. View "Frost v. New Hampshire Banking Dept. " on Justia Law

In 1989, Richard Cormier conveyed property to CF Realty Trust by warranty deed, and CF Realty Trust recorded the conveyance in the registry of deeds shortly thereafter. In 1993, CF Realty Trust and Plaintiff C F Investments both filed for Chapter 11 bankruptcy. Pursuant to a proposed plan of reorganization, CF Investments succeeded to all of CF Realty Trust's assets, including the property, and the bankruptcy court entered a final decree approving the proposed plan in 1995. However, C F Investments never recorded its interest in the Property in the registry of deeds. Notwithstanding the bankruptcy plan, CF Realty Trust continued to conduct real estate business after 1995. In 2002, Robert Fuller, acting as trustee of CF Realty Trust, conveyed the property to himself as an individual and duly recorded the transaction in the registry of deeds. He then borrowed $219,000, secured by a mortgage on the property, from First Eastern Mortgage Corporation, and First Eastern recorded its interest. First Eastern then assigned its interest to Defendant Option One Mortgage Corp, and Option One duly recorded. In 2008, counsel for CF Investments notified defendant Option One of its competing claim to the Property, alleging that Fuller had acquired title to it unlawfully and had no authority to borrow money against it. In June 2008, Defendant Wells Fargo notified CF Investments of its intent to conduct a foreclosure sale of the property because Fuller had defaulted on his promissory note. CF Investments brought this action in superior court to enjoin the foreclosure sale, arguing that CF Realty Trust did not own the property at the time of its purported conveyance, that such conveyance was therefore invalid, and that consequently Fuller could not lawfully have granted a mortgage to First Eastern. The trial court disagreed, concluding that First Eastern was protected as a bona fide purchaser without notice of CF Investments' claims. After a bench trial, the Superior Court ruled in favor of Option One and Wells Fargo, concluding that the claim of First Eastern had priority over CF Investments' claim. Upon review, the Supreme Court affirmed. View "C F Investments, Inc. v. Option One Mortgage Corp." on Justia Law