Justia Civil Procedure Opinion SummariesArticles Posted in New Hampshire Supreme Court
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
Virgin v. Fireworks of Tilton, LLC
In March 2016, plaintiff James Virgin filed a personal injury lawsuit against defendants Fireworks of Tilton, LLC (Fireworks of Tilton) and Foursquare Imports, LLC d/b/a AAH Fireworks, LLC (Foursquare). As pertinent to this appeal, the complaint alleged breach of the implied warranty of merchantability for damages purportedly sustained as a result of an incident involving fireworks sold by Fireworks of Tilton, and distributed by Foursquare. In May 2017, Foursquare made a “DeBenedetto” disclosure pursuant to the case structuring order identifying a Chinese company as the manufacturer of the fireworks that allegedly caused the plaintiff’s injuries. Plaintiff moved to strike the disclosure arguing, among other things, that apportionment of fault did not apply to breach of warranty claims. The trial court denied the motion, but later granted plaintiff’s request to file an interlocutory appeal, which the New Hampshire Supreme Court accepted. The Supreme Court concluded RSA 507:7-e (2010) did not apply to personal injuries that alleged breach of the implied warranty of merchantability under RSA 382-A:2-314 (2011), thus permitting a named defendant to apportion fault to a non-litigant. View "Virgin v. Fireworks of Tilton, LLC" on Justia Law
Appeal of Northern Pass Transmission, LLC & a.
Petitioners Northern Pass Transmission, LLC and Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), appealed the New Hampshire Site Evaluation Committee’s decision denying their application for a “Certificate of Site and Facility” (certificate) for the siting, construction, and operation of a high voltage transmission line (HVTL) and associated facilities from Pittsburg to Deerfield (the project). A subcommittee of the Evaluation Committee held 70 days of adjudicative hearings between April and December 2017. It received testimony from 154 witnesses and received 2,176 exhibits. At the conclusion of its proceedings, the Subcommittee voted unanimously that petitioners “failed to demonstrate by a preponderance of evidence that the Project will not unduly interfere with the orderly development of the region” and denied the application on February 1, 2018. The New Hampshire Supreme Court reviewed the record and concluded the Subcommittee’s findings were supported by competent evidence and ere not erroneous as a matter of law. Accordingly, the Court held petitioners did not sustain their burden on appeal to show that the Subcommittee’s order was unreasonable or unlawful. View "Appeal of Northern Pass Transmission, LLC & a." on Justia Law
Posted in: Civil Procedure, Energy, Oil & Gas Law, Government & Administrative Law, New Hampshire Supreme Court, Zoning, Planning & Land Use
The Skinny Pancake-Hanover, LLC v. Crotix
Plaintiff The Skinny Pancake-Hanover, LLC, appealed superior court decisions to grant partial summary judgment to defendants, Crotix and James and Susan Rubens, on plaintiff’s breach of contract claim, and that dismissed plaintiff’s claim against defendants for breach of the implied covenant of good faith and fair dealing. Plaintiff entered into a lease with defendants for a single unit in the Hanover Park Condominium building. The lease gave plaintiff the option to purchase its rental unit along with certain other units in the building. Less than a year later, plaintiff notified defendants it wanted to exercise its purchase option. Defendants “declined” plaintiff’s request, stating that plaintiff’s attempted exercise of the option was untimely under the terms of the agreement. Plaintiff sued; defendants answered, asserting the notice plaintiff sent regarding purchase of the rental unit was insufficient to trigger the option under the original lease agreement. Finding the superior court did not err in granting judgment in favor of defendants, the New Hampshire Supreme Court affirmed. View "The Skinny Pancake-Hanover, LLC v. Crotix" on Justia Law
Posted in: Civil Procedure, Contracts, Landlord - Tenant, New Hampshire Supreme Court, Real Estate & Property Law
Tarnawa v. Goode
Defendant Richard Goode appealed a Superior Court order granting a petition to partition real property in Manchester, New Hampshire brought by plaintiff Evelyn Tarnawa. The parties were siblings; the received joint title to the property at issue under the will of their mother (the decedent), who died in 2009. Defendant had been living on the property with the decedent prior to her death, and, after her death, chose to continue living there. In 2010, plaintiff sent defendant a proposed agreement purporting to set forth defendant’s rights and responsibilities with respect to the property while he continued to reside there. Although some back-and-forth discussions took place between the parties, the agreement was never executed, and no evidence of any other agreement regarding the property was presented to the trial court. Defendant claimed to have made improvements to the property. Beginning in 2012, defendant failed to pay the property taxes in full. Plaintiff did not learn of this failure until she was notified by the City of Manchester in 2016. By December 2017, the amount owed for outstanding taxes, costs and interest was $33,803.13, with interest accruing at $11.17 per day. In 2016, plaintiff filed a petition for partition, requesting that the court order a sale of the property “and a division of the proceeds of the sale on an equitable basis, i.e. a deduction of all outstanding deficiencies from the Defendant’s share of the proceeds.” Defendant moved to dismiss for lack of subject matter jurisdiction and for summary judgment on the basis of res judicata and the decedent’s intent to devise the property to the parties as joint tenants with rights of survivorship. The trial court denied those motions and granted the petition to partition. Finding no reversible error in the superior court's judgment, the New Hampshire Supreme Court affirmed partition. View "Tarnawa v. Goode" on Justia Law
Greenwald et al. v. Keating et al.
This case centered on a property lease in Gilford, New Hampshire that included certain preemptive purchase rights (the Agreement). Plaintiffs Evan and Kelly Greenwald sought a declaration on the interpretation of the Agreement, whether it had been breached, and who was liable. On cross-motions for summary judgment, the Superior Court ruled in favor of defendants Barbara Keating, Jill Keating, Ellen Mulligan, and Barry and Chrysoula Uicker. The New Hampshire Supreme Court determined that central to the trial court’s decision was the interpretation of the Agreement - specifically paragraphs 18B and 18C. In the trial court’s view, the Agreement unambiguously required that Richard and Jill Keating intend to list the Mink Island property for sale, not merely intend to sell it, before plaintiffs’ rights under paragraph 18B were triggered. The court also concluded that paragraph 18B was unenforceable because it did not include an essential term: the purchase price. As for the right of first refusal under paragraph 18C, the trial court concluded that this provision was triggered only if the Keatings accepted an offer to purchase made by a third party after the Keatings had listed the property for sale. Thus, the trial court ruled that no breach occurred because the triggering condition - listing the property for sale - was never met. The Supreme Court concluded that because the meaning of the Agreement was ambiguous concerning whether listing the property was intended to be ministerial or substantive, the trial court erred in resolving this issue on summary judgment. The Court agreed with plaintiffs that the trial court erred in summarily concluding that Barbara could not be held liable under the Agreement because she held no ownership interest in the Mink Island property and could not otherwise be chargeable as an agent of Jill. The matter was reversed and remanded for further proceedings. View "Greenwald et al. v. Keating et al." on Justia Law