Articles Posted in New Hampshire Supreme Court

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Plaintiff, the Grand Summit Hotel Condominium Unit Owners’ Association (Association), filed claims against defendant, L.B.O. Holding, Inc. d/b/a Attitash Mountain Resort (Attitash), arising from Attitash’s alleged failure to maintain a cooling tower at the Grand Summit Hotel and Conference Center (Condominium). Attitash moved to dismiss the Association’s claims, arguing that they were barred by a provision, which required arbitration of certain disputes, in a management agreement (the Agreement) between the parties. The trial court denied Attitash’s motion to dismiss, ruling that the Association’s claims fall outside of the scope of the provision. The trial court subsequently approved this interlocutory appeal. Finding no reversible error in the trial court's judgment, the New Hampshire Supreme Court affirmed. View "Grand Summit Hotel Condominium Unit Owners' Association v. L.B.O. Holding, Inc.. d/b/a Attitash Mountain Resort" on Justia Law

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Plaintiff Grand Summit Hotel Condominium Unit Owners’ Association (Association), filed claims against defendant L.B.O. Holding, Inc. d/b/a Attitash Mountain Resort (Attitash), arising from Attitash’s alleged failure to maintain a cooling tower at the Grand Summit Hotel and Conference Center (Condominium) in Bartlett. Attitash moved to dismiss the Association’s claims, arguing that they were barred by a provision, which required arbitration of certain disputes, in a management agreement between the parties. The trial court denied Attitash’s motion to dismiss, ruling that the Association’s claims fell outside of the scope of the provision. Finding no reversible error, the New Hampshire Supreme Court affirmed the trial court. View "Grand Summit Hotel Condominium Unit Owners' Association v. L.B.O. Holding, Inc.. d/b/a Attitash Mountain Resort" on Justia Law

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The parties appealed and cross-appealed superior court rulings regarding claims of defendants, the direct or beneficial owners of real property on Great Island, to deeded or prescriptive easements to traverse a footpath (the Circle Trail) over the Great Island lot owned by plaintiff Dwight Stowell, Jr. Great Island was on Lake Sunapee and lay partially in Newbury and partially in Sunapee. Stowell’s lot was primarily in Newbury, although a small portion of it is in Sunapee. Some of the defendants had Great Island lots in Newbury (the Newbury defendants), while others have Great Island lots in Sunapee (the Sunapee defendants). Because Great Island had no public roads, footpaths were used to get from one place to another on the island. The Circle Trail went around the perimeter of the island. In ruling on pre-trial cross-motions for summary judgment, the trial court decided that the Newbury defendants have deeded easements to use the Circle Trail as it crosses the Newbury portion of Stowell’s lot. The court rejected the assertion that those easements were extinguished because the purpose for which they were created (to provide access to steamboats) became impossible to achieve once the steamboat wharves were destroyed in a 1938 hurricane. Furthermore, the trial court ruled that: (1) only those Newbury defendants who testified at trial have prescriptive easements to use the Circle Trail over the Sunapee portion of Stowell’s lot; (2) only the single Sunapee defendant who testified at trial has a prescriptive easement to use the Circle Trail over both the Newbury and Sunapee portions of Stowell’s lot; and (3) Stowell has the unilateral right to relocate the Newbury defendants’ deeded easements from the front to the back of his property. Stowell appealed the ruling that the Newbury defendant had deeded easements to use the Circle Trail that crossed his lot; the defendants challenged the other rulings. After review, the New Hampshire Supreme Court vacated the trial court’s rulings regarding defendants’ prescriptive easements and Stowell’s right to relocate the deeded easements, and remanded for further proceedings. View "Stowell v. Andrews" on Justia Law

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Plaintiff Rochester City Council appealed a superior court order affirming defendant City of Rochester Zoning Board of Adjustment’s grant of a variance to defendants Donald and Bonnie Toy. On appeal, the Council argued the trial court: (1) erred in affirming the ZBA’s decision to grant a variance to the Toys; and (2) unsustainably exercised its discretion in denying the plaintiff’s motions to expand the record. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Rochester City Council v. Rochester Zoning Board of Adjustment" on Justia Law

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Plaintiffs owned approximately 0.3 acres on the shore of Lake Waukewan in New Hampton. Per the town’s zoning ordinance, the property was subject to a twenty-foot side yard setback and a thirty-five-foot front setback along the road. It was also subject to a fifty-foot setback along the lake shore pursuant to the Shoreland Water Quality Protection Act. The property was sloped and contained a house, a deck, and three plastic, movable sheds used to store various home and recreational items. Plaintiffs sought to replace the plastic sheds with a ten-by-sixteen-foot permanent shed, which they planned to construct on the western side of the property. The proposal would have placed the permanent shed within the twenty-foot side setback. Accordingly, plaintiffs sought a variance from the side setback requirement. They appealed when the Superior Court upheld the denial of their requested variance by the Town of New Hampton Zoning Board of Adjustment (ZBA). They argued the proposed shed would not alter the essential character of the neighborhood because several other properties in the neighborhood had outbuildings within the setbacks. They maintained the existence of these outbuildings on neighboring properties, along with the lack of objection from the western abutters and the town fire chief, demonstrated the proposed shed posed no threat to the public health, safety, or welfare. The superior court concluded that the ZBA’s denial of plaintiffs’ variance on the public interest and spirit of the ordinance criteria was not unreasonable or unlawful. Given the evidence before the ZBA, and the considerable deference reflected in its standard of review, the New Hampshire Supreme Court could not find the superior court erred in concluding that the ZBA acted reasonably and lawfully in finding that plaintiffs’ requested variance would violate the spirit of the ordinance and would be contrary to the public interest. View "Perreault v. Town of New Hampton" on Justia Law

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Plaintiff Richard Polonsky appealed, and defendant Town of Bedford (Town) cross-appealed a superior court order on the parties’ cross-motions for summary judgment as to plaintiff’s petition for injunctive and declaratory relief and to quiet title to residential property that the Town acquired by tax deed in 2011. In 2008, plaintiff inherited residential property in Bedford New Hampshire that, at that time, was assessed at approximately $300,000. Because plaintiff failed to pay his real estate taxes in 2008, 2009, and 2010, tax liens were imposed on his property for each of those years. The Town notified plaintiff before each lien was imposed. In April 2011, the Town notified plaintiff that a tax deed was to be issued. In May 2011, a tax deed for the property was issued to the Town. Plaintiff continued to reside on the property without paying taxes. In 2013, plaintiff offered to pay back taxes, but requested the Town forgive additional charges. In July 2013, the Town rejected plaintiff’s request and decided to sell the property. In December 2013, the Town notified plaintiff of its decision to sell the property and of his right to repurchase it. Plaintiff received that notice, but did not act on it. In April 2015, the Town again notified plaintiff of its intent to sell the property and of his right to repurchase. Plaintiff proposed he purchase the property for only the amount he owed in taxes and that the Town waive the remaining amounts. The Town rejected the plaintiff’s proposal. The Town then asserted that plaintiff’s right to repurchase the property had terminated because more than three years had passed since the tax deed had been recorded. Shortly thereafter, plaintiff brought this lawsuit. On appeal, plaintiff argued the trial court erred in ruling that the Town’s failure to provide timely statutory notice to him of its July 2013 “offering for sale,” as required by RSA 80:89, I (2012), did not invalidate the tax deed. Plaintiff also argued the trial court erred by failing to find that the penalty the Town may recover pursuant to RSA 80:90, I(f) (2012) (amended 2016) constituted “double taxation” in violation of the State Constitution. In its cross-appeal, the Town argued the trial court misinterpreted the three-year period set forth in RSA 80:89, VII (2012) when it determined that, although the tax deed was recorded more than three years ago, plaintiff could bring a claim for any amount the Town recovered from the property’s eventual sale in excess of the outstanding taxes, interest, costs, and statutory penalty owed (“excess proceeds”). The New Hampshire Supreme Court affirmed the trial court’s ruling rejecting the plaintiff’s claim that the tax deed was invalid, reversed its ruling construing the statutes as permitting plaintiff to recover excess proceeds from any future sale of the property, and remanded for further proceedings. View "Polonsky v. Town of Bedford" on Justia Law

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Plaintiff Loon Valley Homeowner’s Association (the Association), appealed a superior court order denying its petition to quiet title to land owned by defendant Lewis Pollock and the decedent, Norman Wallack, based upon a claim of adverse possession. Pollock testified at trial that he and Wallack retained Lot 12 hoping to add it to the Association’s property to offset their loss. Pollock explained that after unsuccessfully seeking direct compensation from the members in exchange for adding Lot 12 to the Association, he and Wallack agreed to allow the members of the Association to use Lot 12 on the condition that the Association maintain the lot, pay the property taxes, and relocate the fence dividing Lots 11 and 12 to its current location, where it marked the approximate boundary between Lots 12 and 13. Following trial, the court found that the Association’s use of Lot 12 was permissive and that, even if the court were to assume that the Association’s use of Lot 12 was such that Pollock and Wallack should have known that the Association had repudiated their permission, it had failed to demonstrate that such use was exclusive for a twenty-year period. On appeal, the Association argued the trial court erred: (1) when it found “a permissive arrangement between Lewis Pollock and the Association, and thus that the Association’s use of Lot 12 was not adverse”; and (2) when it ruled that the Association “had not established that it had utilized Lot 12 exclusively” during the twenty-year prescriptive period. Finding no error, the New Hampshire Supreme Court affirmed the superior court. View "Loon Valley Homeowner's Association v. Pollock" on Justia Law

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Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law

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Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law

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Plaintiff Slania Enterprises, Inc. appealed a superior court decision to grant defendant Appledore Medical Group, Inc.’s motion to dismiss as time-barred a petition to recover damages stemming from an alleged breach of a commercial real estate lease. In October 2012, Slania, as the lessor, and Appledore, as the lessee, entered into a commercial real estate lease for an initial fixed term that ended on April 30, 2015. However, Appledore never took possession of the premises. Appledore paid rent due through January 2013, but then stopped doing so. In March 2013, Appledore communicated to Slania that it wished to terminate the lease. On April 12, 2013, Slania notified Appledore that it was in default on its rental payments. Appledore did not pay. On April 22, 2013, at the expiration of a 10-day cure period, Slania notified Appledore that, pursuant to Section 13.1(b) of the lease, it was electing, as its remedy upon default, to “keep the lease in effect and recover rent and other charges due [from Appledore] less the amount [Slania] may recover by re[-]letting the premises.” Slania re-let the premises from February 2015 through the end of the initial term of the lease, April 2015, for a lesser monthly amount. Approximately one year later, Slania filed a breach of contract action against Appledore for $82,527.87 in damages, which included rent, late fees, and utility costs due from May 2013 through April 2015. Appledore moved to dismiss, asserting that because the lease was breached no later than April 22, 2013, the claim was barred by a three-year statute of limitations. Slania objected, arguing that the lease was an installment contract, and, therefore, the statute of limitations did not bar a suit to recover payments due within three years of the date the complaint was filed. The trial court granted Appledore’s motion to dismiss, ruling that, because “a real estate lease of the type involved here is not an installment contract as that term is contemplated in the statute of limitations context,” the so-called “installment contract rule,” under which the statute of limitations runs only against each installment when it becomes due, did not apply. The New Hampshire Supreme Court concluded commercial real estate leases did not fall outside the bounds of the installment contract rule, and reversed the trial court’s contrary ruling. In rejecting Slania’s assertion that it could elect to keep the lease in place and sue for breaches that occurred within three years of the date it filed suit, the trial court did not mention anticipatory repudiation or material breach. The Supreme Court found this case raised issues of first impression regarding the interplay of the installment contract rule, a party’s election of contractual remedies, and anticipatory repudiation or anticipatory breach. It did not appear that these issues were fully explored by the trial court; accordingly, the Supreme Court vacated the trial court’s ruling with respect to Slania’s argument that, under the terms of the lease, it could keep the lease in effect and bring an action to recover for breaches that occurred no more than three years before the date it filed this suit. The case was remanded for such further proceedings, as the trial court deemed necessary. View "Slania Enterprises, Inc. v. Appledore Medical Group, Inc." on Justia Law