Justia New Hampshire Supreme Court Opinion Summaries

Defendant Christopher Kean appealed a superior court order granting in part and denying in part his motion for return of property. Defendant, while wearing an official but discontinued Manchester Police jacket, was observed by a Manchester Police Officer walking in front of a Manchester Police Department substation. Although the jacket had been discontinued in 1999, it bore a current Manchester Police Department patch. The officer stopped defendant, concerned that a passerby might mistake him for a police officer. Defendant stated that an attorney had confirmed that it was legal for him to wear the jacket, but the officer told him that continued wearing of the jacket would likely subject him to arrest for impersonating a police officer. Defendant was not arrested at that time. The next day, defendant, wearing the same jacket, was again observed walking past the Manchester Police Department substation, this time by a different Manchester Police Officer. Aware of the prior encounter, defendant was placed under arrest for impersonating a police officer. At trial, the case was dismissed, in part because of the Stateís inability to produce a material witness to the alleged crime. Defendant then moved for the return of the jacket. Following a hearing, the court found that the jacket, and implicitly the patch, were "at all times the property of the City of Manchester." However, the trial court ordered that the jacket be returned to defendant, subject to the condition that the Manchester Police patch be removed from the jacket sleeve. The court found that forfeiture of the patch best served the public interest. This appeal followed. Defendant contended that: the State had the burden of disproving his ownership; the State did not meet its burden; and that the trial court, therefore, erred in finding that defendant was not the rightful owner of the patch. The Supreme Court found, after review, that the trial court did not err in finding that the State had demonstrated ownership of the jacket and patch by the City of Manchester. The trial court did err, however, in ordering that the jacket be returned to the defendant, finding that the trial court may have ordered forfeiture to the State without first providing notice to the City of Manchester. As such the trial court's order was vacated and the matter remanded for further proceedings. View "New Hampshire v. Kean" on Justia Law

Plaintiff David Eldridge was a resident and condominium owner at the Whip-Poor-Will Condominium Complex in Hudson. The condominium complex was governed by two different entities: the Condominium Owners' Association (COA) and the Rolling Green at Whip-Poor-Will Townhouse Owners' Association (TOA). Each association had separate and distinct legal obligations as set forth in the Condominium Declaration. Plaintiff has several disabling impairments that impact his mobility. When a walkway had not been repaired as he requested, plaintiff filed a charge of discrimination against the COA with the New Hampshire Human Rights Commission (HRC). Shortly thereafter, the COA repaired the plaintiff's walkway. The HRC, which continued to investigate the matter despite the repair, determined that there was probable cause to support a finding of discrimination and notified the COA that it had scheduled a public hearing on the complaint. The COA subsequently removed the case to superior court and filed a motion to dismiss on numerous grounds. As relevant to this appeal, the COA argued that plaintiff's discrimination complaint should be dismissed because the HRC had not commenced proceedings within twenty-four months after the filing of the charge of discrimination, as required by statute. The Superior Court denied the COA's motion to dismiss, concluding that the twenty-four month limit specified in the statute was not jurisdictional. The COA then filed a motion for summary judgment, asserting that: (1) the case was moot because the walkway had been repaired; (2) the COA was not an entity covered by the Human Rights Act; (3) the plaintiff's claim was time-barred; (4) there was no dispute that the COA had accommodated the plaintiff; and (5) the COA had no legal obligation or authority to replace the walkway because it was located in a Townhouse Limited Common Area. The Superior Court (Temple, J.) granted the COA's motion for summary judgment on the ground that, under the plain language of the Declaration, the COA lacked authority over plaintiff's walkway and, as such, plaintiff had pursued the wrong party in seeking an accommodation. Plaintiff filed a motion for reconsideration in which he asserted, for the first time, that because the COA had arranged for the walkway to be repaired, it had authority to repair the walkway. The court denied plaintiff's motion, reaffirming its earlier determination that the TOA, not the COA, had sole control over the walkway, and refusing to consider both plaintiff's theory regarding the COA's "assumed" authority over the walkway and any "new evidence" in support thereof. This appeal and cross-appeal followed. The Supreme Court concluded that plaintiff's complaint was untimely under RSA 354-A:21, III, and as such, affirmed dismissal of his case. View "Eldridge v. Rolling Green at Whip-Poor-Will Condo. Owners Ass'n" on Justia Law

Plaintiffs were four police officers who served on a drug task force who received reports that defendant’s 29-year-old son was engaged in illegal drug activity at a property in Greenland where he lived. The property was owned by the Beverly P. Mutrie Revocable Trust, of which defendant was trustee. During the execution of a search warrant at the Greenland property, defendant’s son shot and injured the plaintiffs. He then took his own life. Plaintiffs sued defendant, individually and in her capacity as trustee to recover for their injuries, alleging that she was responsible for their injuries because, “with the knowledge, information and belief” that her son was engaged in criminal activity, she “did recklessly and wantonly allow . . . criminal activity and conduct to take place at the subject property and otherwise directly and indirectly and wantonly and recklessly supported and facilitated [her son’s] criminal activity at the subject property.” The defendant filed a motion to dismiss, asserting that the plaintiffs’ claim is barred by the Firefighter’s Rule. The trial court explained that the allegations that defendant had provided her son with housing, cars, and financial assistance, and also paid his legal defense costs were insufficient to support a finding of reckless or wanton conduct because that assistance did not “enable [her son] to shoot the police,” nor did it “contribute to his decision to do so.” Therefore, the trial court concluded, the defendant could not “reasonably be considered to have created or contributed to an unjustifiable risk of harm to others,” and that no exception to the Firefighter Rule applied. Plaintiffs appealed, but finding no reversible error, the Supreme Court affirmed. View "Kukesh v. Mutrie" on Justia Law

Plaintiffs Deborah and Matthew Hogan appealed a Superior Court decision granting defendant Pat’s Peak Skiing, LLC's motion to dismiss their case. On February 4, 2012, both plaintiffs fell from a ski chairlift while skiing at defendant’s premises. Plaintiffs were evaluated that day by a member of defendant’s ski patrol and incident reports were completed. Both plaintiffs reported injuries from the fall. In May, plaintiffs sent notice to defendant by certified return receipt mail, stating that they had retained counsel regarding the February incident. The letter of notice was dated May 3, 2012, arrived at the Henniker post office on May 5, 2012, and was delivered to defendant May 10, 2012. Plaintiffs filed a complaint on December 3, 2013, seeking damages for negligence, recklessness, and loss of consortium. Defendant moved to dismiss the complaint, arguing that the plaintiffs did not provide notice by May 4, 2012 (ninety days from the date of the injury) as required by RSA 225-A:25, IV (2011). Defendant asserted that the plaintiffs failed to comply with the statute because the notice did not arrive until, at the earliest, May 5, 2012, the ninety-first day. In response, plaintiffs countered that mailing the notice on May 3, 2012, the eighty-ninth day, satisfied the statutory requirement. Alternatively, plaintiffs contended that they adhered to the notice provision by completing incident reports and giving verbal notice on the day of the incident and also by giving verbal notice on a later visit to the ski area. The trial court granted defendant’s motion, concluding that the plaintiffs failed to give proper notice. The question this case presented for the Supreme Court's review centered on whether the statutory phrase “shall be notified,” as it appeared in RSA 225-A:25, IV, was satisfied upon dispatch of notice or upon receipt of notice. Plaintiffs argued that the Court adopt the common law “mailbox rule” in interpreting the notice provision; defendant argued the Court interpret the provision to require actual receipt of notice. The Court concluded that both the plaintiffs’ and the defendant’s proffered constructions were reasonable. Because RSA 225-A:25, IV’s language was subject to more than one reasonable interpretation, the Court would normally resolve the ambiguity by determining the legislature’s intent in light of legislative history. In this case, however, the legislative history was not helpful. "In accordance with the principles of uniformity and certainty," the Court held that notice given pursuant to RSA 225-A:25, IV was effective upon mailing. In doing so, the Court narrowly applied the common law mailbox rule to RSA 225-A:25, IV," in consonance with holdings from other jurisdictions." View "Hogan v. Pat's Peak Skiing, LLC" on Justia Law

Plaintiffs Deborah and Matthew Hogan appealed a Superior Court decision granting defendant Pat’s Peak Skiing, LLC's motion to dismiss their case. On February 4, 2012, both plaintiffs fell from a ski chairlift while skiing at defendant’s premises. Plaintiffs were evaluated that day by a member of defendant’s ski patrol and incident reports were completed. Both plaintiffs reported injuries from the fall. In May, plaintiffs sent notice to defendant by certified return receipt mail, stating that they had retained counsel regarding the February incident. The letter of notice was dated May 3, 2012, arrived at the Henniker post office on May 5, 2012, and was delivered to defendant May 10, 2012. Plaintiffs filed a complaint on December 3, 2013, seeking damages for negligence, recklessness, and loss of consortium. Defendant moved to dismiss the complaint, arguing that the plaintiffs did not provide notice by May 4, 2012 (ninety days from the date of the injury) as required by RSA 225-A:25, IV (2011). Defendant asserted that the plaintiffs failed to comply with the statute because the notice did not arrive until, at the earliest, May 5, 2012, the ninety-first day. In response, plaintiffs countered that mailing the notice on May 3, 2012, the eighty-ninth day, satisfied the statutory requirement. Alternatively, plaintiffs contended that they adhered to the notice provision by completing incident reports and giving verbal notice on the day of the incident and also by giving verbal notice on a later visit to the ski area. The trial court granted defendant’s motion, concluding that the plaintiffs failed to give proper notice. The question this case presented for the Supreme Court's review centered on whether the statutory phrase “shall be notified,” as it appeared in RSA 225-A:25, IV, was satisfied upon dispatch of notice or upon receipt of notice. Plaintiffs argued that the Court adopt the common law “mailbox rule” in interpreting the notice provision; defendant argued the Court interpret the provision to require actual receipt of notice. The Court concluded that both the plaintiffs’ and the defendant’s proffered constructions were reasonable. Because RSA 225-A:25, IV’s language was subject to more than one reasonable interpretation, the Court would normally resolve the ambiguity by determining the legislature’s intent in light of legislative history. In this case, however, the legislative history was not helpful. "In accordance with the principles of uniformity and certainty," the Court held that notice given pursuant to RSA 225-A:25, IV was effective upon mailing. In doing so, the Court narrowly applied the common law mailbox rule to RSA 225-A:25, IV," in consonance with holdings from other jurisdictions." View "Hogan v. Pat's Peak Skiing, LLC" on Justia Law

Plaintiff Jillian Bergeron appeals a Superior Court order lifting a preliminary injunction on the foreclosure sale of her home and dismissing her case. Plaintiff executed a promissory note in favor of Drew Mortgage Associates, Inc. The Mortgage identified Drew Mortgage as the lender, plaintiff as the mortgagor, and Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee. MERS later assigned the Mortgage to defendant New York Community Bank. The Note was also apparently transferred a number of times, because an allonge with a number of endorsements appears in the record. Defendant notified plaintiff of the foreclosure sale. On or about April 15, 2013, plaintiff filed a verified petition to enjoin the foreclosure sale and for an ex parte restraining order. She admitted falling behind on her payments, but challenged defendant’s authority to foreclose because “[i]t appears that at the very least, [the defendant] does not own the note.” Following denial of plaintiff’s loan modification application, defendant requested that the court lift the injunction and allow the foreclosure sale to proceed. The court did so, ruling, in relevant part, that defendant “has the authority to foreclose whether it actually holds the note or is merely acting as an agent for the entity which holds the note.” On appeal, plaintiff argued that the trial court erred in: (1) ruling that the entity foreclosing a mortgage need not hold both the mortgage and the note; (2) finding that plaintiff clearly intended that the Note and Mortgage be held by separate entities; and (3) failing to make the necessary finding that defendant was entitled to enforce the Note. These specific arguments, however, were largely subsumed within plaintiff’s more general contention that because “the mortgage and note are not severable,” a mortgagee must be entitled to enforce the promissory note in order to conduct a foreclosure sale pursuant to RSA chapter 479. The Supreme Court affirmed. Because the Mortgage evidenced an agency relationship between the lender (Drew Mortgage) and the mortgagee (MERS), and the Mortgage contemplated that both the lender and MERS could assign their interests, and plaintiff did not challenge the validity of the assignment of either the Note or the Mortgage, the Court concluded that defendant has the authority, as agent of the noteholder, to exercise the power of sale. Therefore, the Court held that the trial court did not err in lifting the injunction and dismissing the action. The Court did not address whether defendant could foreclose if the agency relationship was irregular or legitimately challenged by the plaintiff. We also need not decide whether, absent an agency relationship between the noteholder and the mortgage holder, a party who holds only the mortgage has the authority to foreclose. View "Bergeron v. New York Community Bank" on Justia Law

Respondent Shane Rokowski appealed the final decree in his divorce from petitioner Tammy Rokowski. On appeal, he argued that the Circuit Court erred by: (1) conducting its own internet research to ascertain the value of the marital home; (2) inequitably distributing the parties' assets and debts; (3) awarding the petitioner permanent lifetime alimony of $750 monthly; and (4) requiring him to pay certain expenses while the divorce was pending. Upon review, the Supreme Court agreed that the trial court erred in relying upon internet research to ascertain the marital home's value. The Court found that the accuracy of the trial court's sources in this regard could have reasonably been questioned, and as such, failed to meet the standard for judicial notice. Because the Supreme Court vacated the trial court's distribution of marital property, it declined to address respondent's arguments that the trial court improperly: (1) referred to, and allegedly considered when distributing the property, his drinking, hiding income, domestic violence, and alienation of the parties' children; (2) divided the parties' debts unequally; and (3) awarded the petitioner any interest in his businesses. For the same reason, the Court also declined to address respondent's arguments about the alimony award. Because the trial court based its alimony award in part upon 'the asset distribution,' and because that distribution was vacated, the alimony award was also vacated. The Court affirmed the trial court in all other respects, and remanded the case for further proceedings on valuation and distribution of the marital property. View "In the Matter of Rokowski" on Justia Law

The parties were married in August 2005 and were divorced by a New Hampshire court in 2009. When they divorced, both parties lived and worked in New Hampshire. The parties had two children. The parenting plan entered with their divorce decree gave the parties joint decision-making responsibility for the children, who resided primarily with petitioner Mary Sheys. In January 2013, petitioner notified respondent Eric Blackburn that she had to relocate from Manchester to Natick, Massachusetts, because she had been unemployed since November 2012 and had obtained a new job in Natick. After petitioner moved to Natick, respondent filed a motion in which he argued that he should be awarded primary residential responsibility for the children and that petitioner should have been found in contempt for having relocated in violation of the parties’ parenting plan. The trial court denied this relief, finding that although petitioner did not provide respondent with the 60-day notice required by the parties’ parenting plan, she provided him “at least 40-45 days” notice before relocating, which afforded him “ample time to . . . request . . . a hearing as provided by statute.” The court entered a new parenting plan, pursuant to which the parties again had joint decision-making responsibility for the children, who again were to reside primarily with petitioner. Respondent again asked the court to modify the parenting plan and to hold petitioner in contempt. At a scheduled hearing on the contempt allegation, petitioner moved to dismiss, arguing that because she and the children had been Massachusetts residents for a year, and because she had a motion pending in a Massachusetts court regarding the divorce decree and parenting plan, the New Hampshire court lacked jurisdiction. The New Hampshire court dismissed respondent's motion. Respondent appealed the New Hampshire trial court's order granting the motion to dismiss, arguing the trial court’s order was contrary to RSA 458-A:13, I (Supp. 2014), a provision of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Because the Supreme Court agreed with respondent, it reversed and remanded for further proceedings. View "In the Matter of Sheys & Blackburn" on Justia Law

The City of Laconia owned and maintained Opechee Park. In May 2012, plaintiff Margaret Dolbeare was enjoying the playground equipment at the park with her granddaughter. As plaintiff approached the park swings, her foot caught under the edge of a mat. She fell and suffered injuries. This case was an interlocutory appeal by the City when the Superior Court denied its motion to dismiss negligence and nuisance claims. The trial court transferred two questions for the Supreme Court's review: (1) did the trial court err in finding that the City owed Plaintiff a duty, despite RSA 212:34, II; and (2) did the trial court err in holding that the City was not immune from suit under RSA 508:14, I, because “using playground equipment is not . . . recreation within the meaning of RSA 508:14”? After review, the Court answered both questions in the affirmative as they related to plaintiff’s negligence claim. Plaintiff argued that, notwithstanding either RSA 212:34, II or RSA 508:14, I, the City was liable for its alleged negligence under RSA 507-B:2 (2010). Because the trial court did not address this argument, the Supreme Court declined to do so in the first instance. Accordingly, the Court vacated the trial court’s order denying the City’s motion to dismiss plaintiff’s negligence claim. View "Dolbeare v. City of Laconia" on Justia Law

In 2012, Logan Lamb, a student at a school operated by defendant, the Shaker Regional School District, was playing football on the playground during the lunch recess when another student tackled him and “slammed him to the ground,” causing injury to his head. Logan did not return to class after lunch, and none of the school’s staff reported the incident on the playground or that Logan was missing from class. Logan was later found wandering the halls, disoriented. He was taken to the nurse’s office, where he remained for approximately fifty minutes, at which point the nurse contacted plaintiff to pick him up. The nurse did not call for an ambulance. Plaintiff took Logan to the emergency room, where she learned that he had possibly suffered a concussion. In 2014, plaintiff filed her complaint alleging defendant “acted in a special relationship to [Logan], taking responsibility for [his] health, safety, and [well-being] while he was under its care, custody, and control,” and that it had breached its duty leading to Logan’s injuries. Defendant moved to dismiss, arguing that RSA 507-B:5 immunized it from plaintiff’s negligence claims and that those claims did not fall within the exception to immunity created by RSA 507-B:2. The trial court granted the motion to dismiss. On appeal, plaintiff argued that the trial court erred by failing to apply the exception to general immunity pursuant to RSA 507-B:2 (2010). Finding no reversible error, the Supreme Court affirmed. View "Lamb v. Shaker Regional Sch. Dist." on Justia Law