Justia Government & Administrative Law Opinion Summaries

Defendants Scott and Christina Lees appealed a trial court decision that found in favor of Plaintiff Stephen Wyle on his claim of negligent misrepresentation. In 2002, Defendants purchased a two-unit apartment building. Defendants wished to expand the building, and approached a contractor to add a third apartment to the back of the property. Conditional approval for the site plan was granted in November 2003 and final approval was obtained in January 2004. However, Defendants did not obtain the proper permits prior to building or occupying the unit. As a result, the town's building inspector never inspected the unit. The Lees again hired the contractor both to complete a second addition to the property. Defendants again failed to secure the necessary building permits. After the completion of construction, town officials visited the property a number of times in 2006 and 2007. The town informed Defendants that "[s]ave for acceptable field changes[,] the site plan requirements have been satisfied." Defendants listed the property for sale in 2007. After entering into the agreement, Plaintiff had a comprehensive home inspection performed and sent a list of specific concerns regarding the property to Defendants. The concerns were either remedied by the Defendants or waived by Plaintiff prior to closing. Approximately six weeks after closing, the entire property was inspected by the town building inspector and fire chief which revealed numerous building and life safety code violations. Plaintiff was ordered not to occupy the unit until he corrected the violations and made the site compliant with site plan regulations. After correcting the violations, Plaintiff then brought a single claim against Defendants for negligent misrepresentation. Following a two-day bench trial, the trial court issued an order awarding damages to the Plaintiff. Upon review of the trial court record, the Supreme Court found that the evidence at trial established that Defendants negligently misrepresented that the premises were licensed for immediate occupancy and that they had obtained all the necessary permits. Accordingly, the Court found that the trial record supported the decision in favor of Plaintiff, and the grant of damages.

Plaintiff Dana Chatman appealed a superior court decision that dismissed his lawsuit against Defendants James Brady and the Lee Country Fair brought pursuant to RSA 651:70 (2007), an immunity statute. In May 2007, Plaintiff pleaded guilty to felony operating a vehicle while certified as a habitual offender. The trial court sentenced him to one year in the Strafford County House of Corrections, with all but fourteen days to be served on administrative home confinement. As a condition of his release, he was required to wear a monitoring bracelet. Because he could not afford the daily fee associated with the bracelet, he was required to work to cover its costs. On or about September 9, 2007, Plaintiffâs work assignment was to help clean up the grounds at the site of defendant Lee Country Fair, assisting in loading tables and chairs onto a trailer owned by Defendant Brady. While the loaded trailer was being hitched to the truck, a weld on the trailer hitch failed causing the trailer to fall on the plaintiffâs leg. Plaintiff sued alleging that Brady was negligent and that Lee Country Fair was vicariously liable for that negligence. He alleged that Brady knew or should have known that loading the trailer prior to hitching it to the truck would cause excessive stress to the trailer hitch and welds, and that maneuvering the fully loaded trailer to the truck while on soft, uneven ground was unreasonably dangerous. Upon review, the Supreme Court concluded that RSA 651:70 did not afford Defendants immunity under the facts alleged in this case, and therefore, the trial court erred in dismissing Plaintiffâs lawsuit.

Defendant-Tenant Wendy Wilson appealed a district court ruling that she breached her lease with Plaintiff Nashua Housing Authority. She rented an apartment in a public housing development. The lease provided that tenants "shall not engage in any drug related criminal activity on or off NHA property." Breach of that clause is cause for eviction from the leased unit. After reading a newspaper article about Defendant's arrest, the landlord sent her an eviction notice and subsequently brought a possessory action against Defendant for breach of the lease. At the eviction proceeding, the landlord introduced three criminal drug complaints that alleged Defendant "unlawfully dispensed and sold a certain narcotic drug, to wit: morphine." Defendant contended on appeal that the criminal complaints were not sufficient to prove she breached her lease. Upon review of the matter, the Supreme Court found that the criminal complaints were not sufficient to prove that Defendant had actually engaged in the alleged activity. As such, the Court reversed the eviction court's decision to the contrary.

Petitioner Patricia Kalar petitioned the Supreme Court to challenge the reduction of her benefits by Respondent New Hampshire Department of Health and Human Services. The Department conducted an inquiry into Petitioner's income and expenses as part of a mandatory, periodic "recertification" process for determining Petitioner's food stamp benefits. At the last inquiry, the Department determined that Petitioner's food stamp benefit should be reduced. Petitioner argued on appeal that the Department erred in its calculation that served as the basis of its reduction determination. Upon review, the Supreme Court could not conclude that the reduction in Petitioner's benefits was due to miscalculations by the Department. The Court affirmed the Department's decision.

Petitioner Erica Tapply appealed a trial court's order that denied her motion for judicial disqualification. The issue on appeal was whether the trial judge who presided over this contentious dispute concerning the parenting rights of Respondent Benjamin Zukatis erred by not granting Petitioner's repeated requests to recuse himself. Upon review of the trial judge's order on Petitioner's motion for disqualification, the Supreme Court concluded that the lower court applied the correct standards in denying the motion. The Court noted that the trial court found that "under all circumstances, the court [was] convinced that an objective, disinterested observer, fully informed of the facts, would not entertain significant doubt as to the court's impartiality or its ability to do justice in this case." Because the trial judge applied the correct standards in reviewing Petitioner's motion, the Supreme Court found no error and affirmed the lower court's decision.

Appellants Campaign for Ratepayers' Rights, Conservation Law Foundation, Freedom Logistics, Halifax-American Energy Co, TransCanada Hydro Northeast, Union of Concerned Scientists and Jackson Perry appealed orders of the New Hampshire Site Evaluation Committee that denied their motion for declaratory judgment. This case involved the installation of a wet flue gas desulphurization system (also known as a "scrubber") at a electricity generating facility in Bow owned by Appellee Public Service Company of New Hampshire (PSNH). Appellants sought a declaratory judgment from the Committee to determine whether the Committee had jurisdiction over modifications to the scrubber. Any modification would have constituted a 'sizable addition' to the existing substation facility in violation of state environmental law. Appellants argued that the Committee made a number of errors that lead to an erroneous ruling that the scrubber project was not sizable enough to implicate the law. Upon review, the Supreme Court found that the Committee lacked subject matter jurisdiction to decide whether the scrubber was sizable enough. The Court vacated the Committee's decision.

Petitioner James Margeson appealed a decision of the New Hampshire Compensation Appeals Board (CAB) that denied him reimbursement for medical treatment and workers' compensation benefits. Petitioner conducted a "bed check" at a state youth center when he twisted his knee. The Center contended that Petitioner's injury was precipitated by a pre-existing war wound. The CAB rejected the Center's version of Petitioner's injury. However, the CAB did not award Petitioner reimbursement, finding that Petitioner "did not encounter any greater risk of his employment than in his everyday life and the stairs were merely an incident or an occasion that accompanied the injury." The CAB denied Petitioner's motion for reconsideration. Upon review, the Supreme Court found that the parties agreed that Petitioner was injured at work. The parties disputed whether his injury arose out of his employment. The Court adopted an "increased-risk" test for injuries attributable to neutral risks such as the unexplained fall at issue in this case: "the injury must actually result from the hazards of employment and not merely from the bare existence of employment." The Court reversed and remanded the CAB's decision to make specific findings as to whether Petitioner's injury was a "neutral risk" and if so, that record reflects the medical and legal causation of the injury.

Respondents North of the Border Tobacco, LLC (Tobacco) and Roll Your Own, LLC (RYO) appealed decisions of the Superior Court that enjoined them from allowing customers to use on-site cigarette-making machines to make rolled cigarettes with loose tobacco unless they make required escrow payments as required by law. An escrow fund was set up by the state to share the burden from damages for smoking-related health care costs. Respondents own tobacco shops that sell various tobacco products. At some point, for a rental fee, cigarette-making machines were installed for on-site customer use. The State filed suit in 2009 and sought an injunction against Respondents to stop selling or rolling cigarettes until they paid into the fund. Tobacco denied that it manufactured cigarettes and argued that it did not have to contribute to the fund. The trial court disagreed and issued the injunction. Upon review, the Supreme Court affirmed the trial court's decision to issue the injunction against Tobacco. However, the Court vacated the trial court's decision against RYO, holding that a preliminary injunction was premature prior to resolving several constitutional issues pertaining to RYO's business operations. Accordingly, the Court affirmed part, reversed part of the trial court's ruling, and remanded the case for further proceedings.

Petitioners Peter Gordon and the Peter Gordon Revocable Trust of 1999 own six oceanfront properties adjacent to and at the end of a road in the Town of Rye. Petitioners unsuccessfully appealed an order from the Town Board of Selectmen that a portion of the road had become public by prescription. On appeal to the Supreme Court, Petitioners argued that the Boardâs conclusion was wrong. Central to the Board's conclusion was Petitioner's 1997 request to remove snow from the road. The Board reasoned that if the road was private, the Town would have had no duty to remove the snow. Upon consideration of matter, the Supreme Court found the evidence presented at the Board hearing was insufficient to declare the road a public road by prescription. The Court vacated the Board's decision, and remanded the case to the superior court for further proceedings.

Bower Road in Henniker was originally designated a "public highway" in 1797. In 1895, the Town voted to discontinue the road. In 2002, Timothy Hanson purchased a parcel of land in Henniker which could only be accessed by the road. The neighbors disputed Mr. Hanson's use of the road, and he successfully brought suit to establish a right-of-way in the road. In 2009, Plaintiff Russell Forest Management acquired the Hanson property. Plaintiff applied to the Town Board of Selectmen for a building permit to construct a single-family home there. Following a hearing, the Board rejected Plaintiff's application, holding that the discontinued road could not be used as planned. The Board found that Plaintiff's property did not have the required frontage, rather, a simple right-of-way. Plaintiff unsuccessfully appealed to the Zoning Board of Appeals (ZBA) and the superior court. On appeal to the Supreme Court, Plaintiff argued that over time, the discontinued "public highway" became a "private road" due to the nature of Mr. Hanson's original use to access his property. As a private road, Plaintiff argued the Board erred in finding that it did not meet the statutory requirements for frontage to the proposed single-family house. The Supreme Court found that the "road" indeed did not meet the Town's requirements of a private road nor as frontage to the property. Furthermore, the Court found that the "road" did not meet the criteria for being a qualified easement. Accordingly, the Court affirmed the lower court's and the ZBA's decisions to deny Plaintiff its building permit.