Justia Civil Procedure Opinion SummariesArticles Posted in New Hampshire Supreme Court
In re R.M.
Respondent R.M. appealed a circuit court order that renewed his involuntary admission to New Hampshire Hospital for the purpose of allowing him to remain on a conditional discharge for a period of five years. Respondent was a 30-year-old man who had been hospitalized on multiple occasions as a result of schizophrenia. When respondent doesn't take his prescribed anti-psychotic medication, he becomes paranoid, violent, and suicidal. In addition, he experienced hallucinations, paranoid delusions, and difficulties with impulse control and exhibited “a serious level of aggression.” Respondent was first hospitalized in 2010 after voicing suicidal ideation, stating that he would be “better off dead.” Pertinent here, was admitted on an emergency basis again in February 2015 due to concerns of suicidal threats, incapacity, and his paranoid belief that people were conspiring against him. In early March 2019, a few weeks before the respondent’s three-year conditional discharge was set to expire, the local community mental health center filed a petition to renew his conditional discharge. On appeal, respondent challenged the sufficiency of the evidence and argued the five-year renewal was not the least restrictive treatment option. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "In re R.M." on Justia Law
Posted in: Civil Procedure, Government & Administrative Law, Health Law, New Hampshire Supreme Court
Lane v. Barletta
Defendant Antonio Barletta appealed a circuit court order that awarded plaintiff Jacquelyn Lane $66,000 in damages for his willful interruption of plaintiff’s heat utility service for thirty-three days. Plaintiff rented an apartment from defendant. Shortly after moving in, plaintiff and her grandfather noticed the heating system did not produce heat. Plaintiff notified the defendant of the problem via text message on September 26, 2016, and was told to call the maintenance person for the property. When the maintenance person arrived, he turned on the heating system and observed the pilot light, and instructed plaintiff to leave the system on for a while. He told plaintiff that if she did not begin to feel any heat to contact defendant. The heating problems persisted, and when plaintiff informed defendant, he told her that he would send over a space heater and repair or replace the heating system. Plaintiff received the space heater in November 2016, and, in December, she informed defendant the space heater “[wa]sn’t cutting it.” However, the space heater remained her only source of heat. In August 2017, plaintiff called the local health inspector hoping that a letter from that office might prompt defendant to take action. Nevertheless, the heating system was not repaired. On appeal defendant argued the trial court erred in finding that he caused a “willful interruption” of the plaintiff’s heating service. Alternatively, he argued that even if he did violate RSA 540- A:3, I, the trial court erred in awarding enhanced damages pursuant to RSA 540-A:4, IX(a) (Supp. 2018) and RSA 358-A:10, I (2009). Plaintiff cross-appealed the trial court's denial of her motion for reconsideration as untimely. The New Hampshire Supreme Court vacated the order of the trial court and remanded for further proceedings, concluding that although defendant willfully failed to repair plaintiff’s original heat source, he may not have willfully interrupted plaintiff’s heat in violation of RSA 540-A:3, I, if the space heater he provided was an adequate alternative source of heat. The adequacy of the space heater was not considered by the trial court in the first instance. Therefore, the trial court’s finding of a statutory violation was vacated, as was the damages award resulting from that violation. Plaintiff’s argument that the trial court erred in denying her motion for reconsideration became moot. View "Lane v. Barletta" on Justia Law
In re Guardianship of K.B.
Petitioner appealed a circuit court order denying her petition to modify or terminate the guardianship of respondents over her minor biological daughter, K.B. The guardianship was granted by a court of the State of Connecticut in 2010. Because the New Hampshire Supreme Court concluded the circuit court did not have jurisdiction over this petition to modify another state’s child-custody determination, it vacated and remanded with instructions to dismiss the petition. View "In re Guardianship of K.B." on Justia Law
Posted in: Civil Procedure, Family Law, Government & Administrative Law, New Hampshire Supreme Court
Burnap v. Somersworth School District
Plaintiff Amy Burnap appealed a superior court order granting summary judgment to the Somersworth School District (District) on her claim of employment discrimination based upon her sexual orientation. The District hired the plaintiff as the Dean of Students at Somersworth High School for a one-year period beginning in July 2015. It was undisputed plaintiff “is a member of a protected class of Lesbian, Gay, Bisexual, and Transgender individuals.” In January 2016, several instances of purported misconduct involving plaintiff came to light, setting in motion a sequence of events that culminated in her termination. She argued to the New Hampshire Supreme Court that the trial court erred because there were disputed material facts that could allow a jury to determine that the District’s stated reason for firing her, sexual harassment, was a pretext for unlawful sexual orientation discrimination because: (1) her colleagues’ alleged discriminatory animus infected the District’s decision to fire her; and (2) a preliminary investigation conducted prior to the District’s decision was a “sham.” The Supreme Court affirmed because there were insufficient facts in the record from which a jury could find, under either argument, that the District fired the plaintiff because of her sexual orientation and used sexual harassment as a pretext. View "Burnap v. Somersworth School District" on Justia Law
Bloom v. Casella Construction, Inc.
Plaintiff Eileen Bloom appealed a superior court order granting summary judgment to defendant Casella Construction, Inc. (Casella), ruling that the defendant did not owe the plaintiff a duty of care and was not otherwise liable to her pursuant to Section 324A of the Restatement (Second) of Torts. Plaintiff worked as a nurse at Dartmouth-Hitchcock Medical Center (DHMC). On December 30, 2013, she parked her car in an employee parking lot. She exited the vehicle, took two steps, and fell on a patch of ice. As a result of her fall, the plaintiff suffered injuries that required surgery. At the time of the plaintiff’s accident, DHMC had a “Snow Plowing Agreement” with Casella (the contract). “Snow Plowing Guidelines” (guidelines) were attached to the contract, calling for salting and sanding of DHMC grounds, and stating that “[e]mployee lots shall be kept plowed as clear as possible and accessible at the start of each shift change”; and “[g]enerally salt is applied to parking lots prior to or at the start of a storm and after storm cleanup or as directed by DHMC Grounds Supervisor or his designee.” Plaintiff alleged the contract obligated Casella to keep the employee parking lot in which she fell clear, and Casella breached that obligation. To the extent the trial court reasoned that there was no duty under the contract because Casella did not assume DHMC’s entire responsibility to keep its property free from unreasonable risks of harm, the New Hampshire Supreme Court disagreed. Whether DHMC directed Casella to apply sand and salt to the parking lot where plaintiff was injured raised a genuine issue of material fact which precluded the entry of summary judgment. For this reason, the Supreme Court reversed the grant of summary judgment and remanded for further proceedings. View "Bloom v. Casella Construction, Inc." on Justia Law
Working Stiff Partners, LLC v. City of Portsmouth
Plaintiff Working Stiff Partners, LLC, appealed a superior court order upholding a decision of the Zoning Board of Adjustment (ZBA) for defendant City of Portsmouth (City), and denying injunctive relief. Plaintiff renovated the subject property and planned to make it available for short-term rentals via websites such as Airbnb, Homeaway and VRBO. Before renovations were completed, the City wrote to plaintiff’s owners to notify them that using the property for short-term rentals may not be permitted in the property’s zoning district, and recommended that they contact the City’s Planning Department to confirm that such a use would be permitted. Despite the City’s letter, plaintiff continued renovating the property and eventually began marketing it on Airbnb. The Airbnb listing offered daily rates, and stated that the property was suitable for family parties, wedding parties, and corporate stays. It also stated that the property could accommodate up to nine guests. As of November 2017, the property was occupied by guests 17% of the year. The complaints were not related to guest misbehavior, loud noises, or other disturbances. Rather, the complaints expressed categorical opposition to the use of the property for short-term rentals. The superior court ruled that plaintiff’s use of its property for short-term rentals was not permitted as a principal use in the zoning district in which the property was located, and that the definition of “[d]welling unit” contained in the City’s zoning ordinance was not unconstitutionally vague as applied to the plaintiff. Finding no reversible error in that judgment, the New Hampshire Supreme Court affirmed. View "Working Stiff Partners, LLC v. City of Portsmouth" on Justia Law
Posted in: Civil Procedure, Government & Administrative Law, New Hampshire Supreme Court, Zoning, Planning & Land Use
Appeal of Preve
Petitioner Wayne Preve appealed a New Hampshire Department of Labor (DOL) ruling that he failed to prove that respondent Town of Epsom (Town) violated the New Hampshire Whistleblowers’ Protection Act. Petitioner worked for the Town’s Police Department since 1997, and served as the Chief of Police since 2004. In 2017, an incident occurred between an attorney and a Town police officer at the Circuit Court in Concord. Specifically, the attorney made a comment to the officer that insinuated the officer was a “sex offender.” The officer later informed petitioner of the attorney’s comment. Petitioner testified at the DOL hearing that, as a result of this incident, as well as additional alleged incidents between the attorney and the Town’s Police Department, petitioner believed that the attorney posed an “officer safety” issue. Petitioner decided to file a complaint against the attorney: he collected all of the data relating to the attorney in the police department’s computer database, and sent these materials to the Judicial Conduct Committee (JCC), rather than the disciplinary body that oversees attorneys, the Professional Conduct Committee (PCC). A copy was also sent to the attorney. The attorney complained to the Town about petitioner’s conduct, threatening to sue the Town as a result of, among other things, petitioner’s disclosure of private information regarding the attorney and his family. The JCC returned the materials to the Town, stating that the JCC was not the correct entity with which to file a complaint regarding an attorney. The Town engaged Municipal Resources Inc. (MRI) to investigate petitioner’s conduct. The Town also instructed petitioner not to re-file the materials with the PCC. MRI issued a report concluding that some of petitioner’s actions were improper and may have violated certain statutes. The Town subsequently disciplined petitioner by suspending him for one week without pay and requiring him to attend training. After appealing this disciplinary action through the Town’s internal procedures, the petitioner filed a complaint with the DOL, arguing that the Town wrongfully retaliated against him for reporting the attorney in violation of the Whistleblowers’ Protection Act. The DOL essentially found that the petitioner had not produced “direct evidence that retaliation played a substantial role” in the Town’s decision to discipline him. The New Hampshire Supreme Court found the record supported the DOL’s conclusion. “As the DOL emphasized, the Town did not immediately discipline the petitioner upon learning that he filed a complaint regarding the attorney with the JCC; rather, the Town engaged a third-party, MRI, to conduct an investigation into the petitioner’s actions before imposing discipline. . . . Thus, we cannot say the DOL erred …in ruling petitioner failed to prove that the Town violated the Whistleblowers’ Protection Act.” View "Appeal of Preve" on Justia Law
Posted in: Civil Procedure, Government & Administrative Law, Labor & Employment Law, New Hampshire Supreme Court
Boyle v. Dwyer
Plaintiffs James Boyle, individually and as trustee of 150 Greenleaf Avenue Realty Trust, and Minato Auto, LLC, appealed a superior court order dismissing their defamation claim against defendant Mary Christine Dwyer. They challenges the trial court’s application of the pertinent law in assessing their claim, and asserted that they pled sufficient facts in their complaint to survive a motion to dismiss. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Boyle v. Dwyer" on Justia Law
Automated Transactions, LLC v. American Bankers Assn.
Plaintiffs Automated Transactions, LLC (ATL) and David Barcelou, appealed a superior court order dismissing their defamation and New Hampshire Consumer Protection Act (CPA) claims against the defendants, American Bankers Association (ABA), Credit Union National Association (CUNA), Robert Stier, and Pierce Atwood, LLP. Plaintiffs argued the trial court erred because it could not determine, at the motion to dismiss stage, that the statements upon which plaintiffs premised the defendants’ liability were nonactionable. The New Hampshire Supreme Court found no reversible error and affirmed the superior court judgment. View "Automated Transactions, LLC v. American Bankers Assn." on Justia Law
Rankin v. South Street Downtown Holdings, Inc.
The trial court certified a question of law to the New Hampshire Supreme Court on interlocutory transfer. John Rankin (Rankin) and his wife MaryAnne (collectively, plaintiffs)sued after Rankin fell while leaving a business located at 70 South Main Street in Hanover, New Hampshire (the property). The property was owned by South Street Downtown Holdings, Inc. (South Street). In March 2017, plaintiffs sued South Street for negligence and loss of consortium, alleging that Rankin fell on an “inadequate and dangerous ramp or partial stair” that “did not meet applicable building codes.” The trial court asked the Supreme Court whether RSA 508:4-b (“the statute of repose”) as amended in 1990 applied to and bar third party actions by a property owner defendant (in a premises liability action) for indemnity and/or contribution against architects involved in the design of the improvement to real property which the injured plaintiff alleges was dangerous and did not meet applicable building codes. The Supreme Court concluded that it did. View "Rankin v. South Street Downtown Holdings, Inc." on Justia Law
Posted in: Civil Procedure, New Hampshire Supreme Court, Personal Injury, Real Estate & Property Law