Articles Posted in New Hampshire Supreme Court

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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

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Defendant-landowner Carl Casagrande appealed a superior court order that granted summary judgment to plaintiff Town of Goshen. The issue before the trial court was whether a section of road abutting Casagrande’s property was an unmaintained town road, or whether, as Casagrande contended, it was private property because the residents of Goshen voted at a town meeting in 1891 to discontinue the road. After reviewing the record of the 1891 town meeting, including the language of the warrant article, the trial court concluded that the town had not voted to discontinue the road, and, therefore, the abutting road was a public highway. View "Town of Goshen v. Casagrande" on Justia Law

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Defendants Brad Balise (Brad), Jon Carpenter, and his mother, Winifred Carpenter, appealed a trial court order quieting title in favor of the plaintiffs Janet and Stanley Balise, and declaring plaintiffs had a right to use a discontinued portion of a road to access their property and install utilities to service it. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Balise v. Balise" on Justia Law

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Homeowner-plaintiffs Michelle and Robert Russell appealed a superior court order denying their summary judgment motion and granting that of insurer-defendant NGM Insurance Company. On appeal, the homeowners argued the trial court erred when it determined that their homeowners’ insurance policy provided no coverage for the additional living expenses they incurred when they were unable to live in their home because of mold contamination. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Russell NGM Insurance Co." on Justia Law

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Plaintiffs Wayne and Ruth Ross, trustees of the Wayne Ross Revocable Trust and the Ruth Ross Revocable Trust, respectively, appealed a superior court order in favor of defendants Donald Ross and Rossview Farm, LLC (the LLC). Plaintiffs contested findings that the parties entered into a lease for the plaintiffs’ lifetimes and that they had no right to evict the defendants pursuant to RSA 540:2, II(d) or (e) (2007). The trial court found that plaintiffs conceded that a June 23, 2006 document satisfied the statute of frauds because, in their post-trial memorandum, plaintiffs explained their position that the June 23, 2006 document “is a writing signed by all the parties that states the terms of the parties’ agreement. This document satisfies the statute of frauds and governs their relationship.” The “clear” language of the June 23, 2006 document, plaintiffs posited, created a yearly lease. However, plaintiffs also argued in the post-trial memorandum that defendants’ introduction of parol evidence of the parties’ intent to create a perpetual lease violated the statute of frauds because “the intent of the parties to create a perpetual lease must be clear from the face of the document and there must be a document to satisfy the statute of frauds.” Thus, plaintiffs did not concede that the June 23, 2006 document satisfied the statute of frauds for all purposes; instead, they contended that it “satisfies the statute of frauds” if the document was read to create a yearly lease. The New Hampshire Supreme Court vacated and remanded, finding the trial court’s finding that plaintiffs conceded the issue lacked evidentiary support, and concluded plaintiffs did not waive their statute of frauds argument by concession. View "Ross v. Ross" on Justia Law

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Defendant Latvian Lutheran Exile Church of Boston and Vicinity Patrons, Inc. (Patrons), appealed a superior court order declaring that it did not have an easement to use a private road to access Lake Massasecum. Plaintiff Carolyn Carlson, Trustee of the Carolyn J. Carlson Living Trust (Carlson), cross-appealed the trial court’s denial of Carlson’s petition to quiet title. Because the New Hampshire Supreme Court found Carlson lacked standing to pursue both her actions, it affirmed the trial court’s ruling that she lacked standing on her petition to quiet title, vacated the trial court’s grant of declaratory relief, and remanded. View "Carlson v. Latvian Lutheran Exile Church of Boston" on Justia Law

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Defendants Aaron and Maryann Little (Littles) appealed a Superior Court quieting title in plaintiffs Barbara O’Malley and her daughter Helen O’Malley a strip of land based upon adverse possession, as well as a previous order denying the Littles’ motion for summary judgment. Barbara and her husband, Joseph, acquired the “McKay Lot” in 1963 for use as a summer home. Over the next 50 years, the couple lived there with their children. The backyard of the McKay Lot abutted the backyard of the Littles’ property (“Francis Lot”). In October 1993, Barbara contracted for the installation of a chain link fence between the McKay Lot and the Francis Lot after tenants from the latter began walking across the yard of the Francis Lot with beach chairs and scratching Helen’s car. The fence was placed about three to five feet over the property line between the two lots. Between the fence and the property line (disputed area), there was a clothesline and outdoor shower and grill, all of which were used frequently by the O’Malley family. The plaintiffs and their relatives and friends would occasionally park against the fence. In 1996, following the death of her husband, Barbara deeded the McKay Lot to herself and her daughter Helen. The Littles purchased the Francis Lot in December 2008. Upon acquiring the property, the Littles assumed that the actual property line was represented by the fence between the two properties. However, in the spring of 2010, Scott McCarthy, a prior owner of the Francis Lot, informed the Littles that the plaintiffs’ fence encroached approximately three to five feet onto the Francis Lot from the actual property line. The Littles confirmed this statement by reviewing a survey plan and measuring the property line with a tape measure. They then called plaintiffs in April 2010 to inform them of this discovery, before stating that they needed to move the fence. Plaintiffs refused. Upon reviewing the record, the New Hampshire Supreme Court found ample evidence that there was “no evidence that [record owner] took steps to eject [adverse possessors] or to disrupt their open possession of the disputed parcel” and affirmed quieting title in plaintiffs. View "O'Malley v. Little" on Justia Law

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Plaintiff Condominiums at Lilac Lane Unit Owners’ Association (Lilac) appealed a superior court order granting summary judgment to defendants Monument Garden, LLC (Monument Garden) and Eastern Bank. The trial court determined that a residential development in Dover known as the Condominiums at Lilac Lane was not subject to the provisions of the Condominium Act RSA chapter 356-B (2009 & Supp. 2016), regulating “convertible land.” The New Hampshire Supreme Court agreed with defendants that the plain language of the Act contravenes Lilac’s assertion that “convertible land” and “expandable condominium” were the only means by which units may be built in the future after the condominium was created. As such, the Court affirmed the superior court’s order. View "Condominiums at Lilac Lane Unit Owners Assn. v. Monument Garden, LLC" on Justia Law