Blevens v. Town of Bow

• Decision Date: 01 March 2001
• Docket Number: No. 97–633.,97–633.
• Court: New Hampshire Supreme Court
• Parties: Kenneth E. BLEVENS, Sr. and others v. TOWN OF BOW.

146 N.H. 67

767 A.2d 446

Kenneth E. BLEVENS, Sr. and others

v.TOWN OF BOW.

No. 97–633.

Supreme Court of New Hampshire.

March 1, 2001.

Laboe & Collins, P.L.L.C., of Concord (John E. Laboe on the brief and orally), for the plaintiffs.

Upton Sanders & Smith, of Concord (Gary B. Richardson and Lauren S. Irwin on the brief, and Ms. Irwin orally), for the defendant.

HORTON, J., retired, specially assigned under RSA 490:3.

The plaintiffs, Kenneth E. Blevens, Sr., and his sons, Christopher J. Blevens and Kenneth E. Blevens, Jr., appeal, and the defendant, the Town of Bow (town), cross- appeals, various orders of the Superior Court (McGuire , J.), including the court's order dismissing the plaintiffs' writ. We affirm.

This case is the most recent in a series of cases regarding the division of the plaintiffs' land. In 1977, Blevens, Sr., received approval for a subdivision of his property. The subdivision plat plan set out four smaller lots and a large area of "back land." The property was originally purchased by Blevens, Sr., as three separate parcels.

In 1991, Blevens, Sr., without seeking subdivision approval from the town, entered into a boundary line agreement with himself to create two new lots out of the "back land" area. He conveyed the resulting lots to his sons. On November 15, 1991, counsel for the town wrote a letter to the plaintiffs stating that, in counsel's opinion, the boundary line agreement was without legal effect and the conveyances violated town subdivision regulations. The letter also advised the plaintiffs that if they did not reconvey the property "to create a single lot" the town would file suit.

In 1992, the town brought suit against the plaintiffs for creating an illegal subdivision. It argued that the 1977 subdivision plat consolidated the remnants of two of the historical parcels in the "back land" area into a single parcel. The superior court ruled that the plaintiffs had created an illegal subdivision because the 1991 boundary line agreement failed to follow the historical lot lines. The court expressly declined to rule on the lot consolidation issue raised by the town. Both parties appealed, and we summarily affirmed the trial court on the merits but ordered the imposition of statutory fines, leaving the possibility of suspension of the fines to the trial court's discretion. On remand, the trial court, noting that the plaintiffs had failed to reconvey the lots, ordered them to pay statutory fines, some of which were suspended, and to reconvey the lots within thirty days. When the plaintiffs failed to reconvey the lots, the court found them in contempt, imposed additional fines and ordered them to reconvey within three days or show cause why they were not in further contempt. The plaintiffs reconveyed the lots on the third day.

Following an unsuccessful attempt to collect money damages and resolve the consolidation issue in federal court in 1994, the plaintiffs filed a new State action in 1996. The 1996 writ alleged four counts: (1) unlawful taking of property; (2) slander of title; (3) violation of due process rights; and (4) recovery of attorney's fees. The plaintiffs requested a jury trial "on all issues triable to a jury."

The parties filed a series of pretrial motions. The trial court denied the plaintiffs' motion to recuse the court for bias. It also denied two of the town's motions to dismiss that alleged: (1) that the "back land" was consolidated as a matter of law as a result of the 1977 subdivision; and (2) failure to exhaust administrative remedies. The court granted the town's motion to dismiss part of the fourth count, relating to recovery of attorney's fees, as barred by res judicata. Finally, it granted the town's motion to dismiss the entire writ, ruling that: (1) the plaintiffs were precluded from recovering monetary damages prior to their reconveyance of the property illegally conveyed to the sons; and (2) the plaintiffs had not sought a ruling on the consolidation issue, a necessary predicate to a jury award for the alleged taking. The plaintiffs now appeal the court's refusal to recuse itself, its partial dismissal of the claim for attorney's fees, and its dismissal of the writ. The town cross-appeals the court's denial of its motions to dismiss based on the consolidation of the subject lots as a matter of law and the failure of the plaintiffs to timely appeal an administrative decision under RSA 677:15 (1996).

We first address the plaintiffs' argument that the trial court erred in declining to recuse itself.

Whether an appearance of impropriety exists is determined under an objective standard, i.e. , would a reasonable person, not the judge herself, question the impartiality of the court. The test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case.

Taylor–Boren v. Isaac , 143 N.H. 261, 268, 723 A.2d 577 (1998) (quotations, citations and brackets omitted). A trial court is per se disqualified due to the probability of unfairness "when [the court] has become personally embroiled in criticism from a party before [it]." State v. Martina , 135 N.H. 111, 121, 600 A.2d 132 (1991) (quotation omitted). The party claiming bias "must show the existence of bias, or such likelihood of bias, or an appearance of bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of [a party]." State v. Fennelly , 123 N.H. 378, 384, 461 A.2d 1090 (1983) (quotation omitted).

The plaintiffs argue that the trial judge should have recused herself for bias evident from the ire occasionally directed at the plaintiffs and the repeated spontaneous arguments made from the bench for the benefit of the [town]. The plaintiffs identify two instances in which the court allegedly demonstrated bias. They first point to the April 5, 1996 hearing on remand, when the court imposed additional fines and ordered the plaintiffs to reconvey within three days or show cause why they were not in further contempt. According to the plaintiffs, the trial court became visibly angry that the [p]laintiffs had the temerity to say that her [o]rders were confusing, recessed the hearing, and within approximately 15 minutes generated an [o]rder holding each of the [p]laintiffs in contempt. (Emphasis omitted.) A review of the April 5, 1996 transcript reveals none of the anger or sua sponte support of the town's position alleged by the plaintiffs. While the plaintiffs were found in contempt as a result of this hearing, the transcript clearly indicates that the contempt finding was based upon the plaintiffs' failure to follow an earlier court order and was not "motivated by ire."

The plaintiffs also point to the August 5, 1996 hearing on their motion to disqualify opposing counsel as an illustration of the trial courts bias. As the plaintiffs have failed to provide a copy of the transcript of that hearing, we decline to consider the plaintiffs argument based thereon. See Sup.Ct. R. 13(3) ; Cook v. CIGNA Ins. Co. , 139 N.H. 486, 488, 657 A.2d 834 (1995).

The remainder of the plaintiffs' argument rests on actions by the trial court that were part of the court's duties in making decisions regarding matters before the court. The plaintiffs offer no additional evidence to show that the trial court's actions were influenced by the existence of partiality, criticism by a party or improper influence. The plaintiffs have failed to show how the court became personally embroiled in criticism from a party before it or to demonstrate bias such that an objective, disinterested observer fully informed of the facts would doubt that justice was done. See Martina , 135 N.H. at 121, 600 A.2d 132; Taylor–Boren , 143 N.H. at 268, 723 A.2d 577. Review of the transcript fails to reveal any obvious anger on the part of the judge or any suggestion by the plaintiffs that they were troubled by the judges demeanor. Nor does it reveal sua sponte support by the judge for the towns position.

We next address the plaintiffs' appeal of the trial court's dismissal of their writ. Specifically, the plaintiffs challenge the court's rationale that they had not sought a ruling on the consolidation issue, such ruling being "a necessary predicate to any jury award of damages for an unconstitutional taking of property." We discern two arguments advanced in support of their appeal. First, they argue that the trial courts determination denied them a right to a jury trial on all issues. According to the plaintiffs, the trial court erred in concluding that the consolidation issue was a matter to be decided by the court rather than by a jury. Second, they argue that, even if the consolidation issue is equitable in nature, the trial court erred in dismissing the entire case, including the issues upon which the plaintiffs were entitled to jury determinations. As these issues are intertwined, we will address them together.

The plaintiffs argue that their takings claim is in the nature of an inverse condemnation action, to which they are entitled to a jury trial under our holding in Sundell v. Town of New London , 119 N.H. 839, 409 A.2d 1315 (1979). They contend that the consolidation alleged by the town burdens the remnants of one of the historical lots because "[i]ts alienation and use as a separate lot can occur only if it is grandfathered as an historically free standing, non-merged parcel." They argue "that governmental action which substantially interferes with or deprives a person of the use of his property, in whole or in part, may constitute a taking, even if the land itself is not taken," see Sundell , 119 N.H. at 845, 409 A.2d 1315, and that a takings claim is "essentially a tort action" entitling them to a jury. The plaintiffs further argue that under First Lutheran Church v. Los Angeles County , 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), they have the...