Bonser v. Courtney

• Decision Date: 16 April 1984
• Docket Number: No. 83-308,83-308
• Citation: 124 N.H. 796,481 A.2d 524
• Parties: . Supreme Court of New Hampshire
• Court: New Hampshire Supreme Court

Page 524

481 A.2d 524

124 N.H. 796

Robert A. BONSER v. John COURTNEY, Superintendent, Rockingham County Jail.

No. 83-308.

Supreme Court of New Hampshire.

April 16, 1984.

Douglas R. Bourdon, Nashua, by brief and orally, for plaintiff.

Shute, Engel & Morse P.A., Exeter (Mark S. Gearreald, Stratham, on the brief and orally), for intervenor Town of Nottingham.

KING, Chief Justice.

This is an appeal from the denial of a petition for a writ of habeas corpus. Our inquiry is limited to three questions: (1) Did the superior court find the plaintiff Robert A. Bonser to be in indirect civil contempt or in indirect criminal contempt? (2) Does the plaintiff have standing in this appeal to raise his claims for a jury trial and to challenge the pertinent zoning regulations of the town of Nottingham? (3) Was the plaintiff a proper party to the underlying suit which resulted in the contempt order? For the reasons which follow, we affirm the decision of the superior court denying habeas corpus relief.

It is necessary to set forth the following pertinent facts which have been adduced from the record before this court. On or before July 22, 1981, six mobile homes had been installed on property owned by Cedar Waters Village, Inc. (Cedar Waters), to be used as residential dwellings. Robert A. Bonser was president and principal stockholder of Cedar Waters, and he and his wife had conveyed the property in question to Cedar Waters. The town of Nottingham (town) alleged that the mobile homes were installed by Mr. Bonser and Cedar Waters in violation of various town planning board and zoning ordinance requirements.

The town notified Mr. Bonser on July 22, 1981, that he was in violation of the requirements of the town planning board and zoning ordinance, and requested the removal of the mobile homes before August 3, 1981. Mr. Bonser refused to comply.

The town on November 30, 1981, filed in Rockingham County Superior Court a petition to enjoin the alleged zoning violations of Mr. Bonser and Cedar Waters. The Superior Court (Nadeau, J.), on December 15, 1981, temporarily enjoined Mr. Bonser and Cedar Waters from placing any more mobile homes upon the property in question. The court order allowed the temporary use and occupancy of the existing mobile homes provided that their use was not expanded "by the erection of temporary or permanent structures or by any other activity."

At the hearing on the temporary injunction, Mr. Bonser and Cedar Waters failed to challenge the validity of either the town's zoning ordinance or its subdivision rules and regulations. The superior court found that Mr. Bonser and Cedar Waters also admitted the allegations set forth in the town's petition to enjoin, and instead "relied on their inalienable constitutional rights as a defense."

Mr. Bonser and Cedar Waters were represented at the hearing by Rita G. Bixby, under a power of attorney. The town's counsel objected to Mrs. Bixby's participation at the hearing on the ground that she was not a licensed member of the New Hampshire Bar, and, upon questioning by the superior court, Mrs. Bixby admitted that she was not a member of the New Hampshire Bar. She also conceded that she had represented other individuals in New Hampshire courts, although she was unable to recall the exact number of times she had done so.

Before allowing Mrs. Bixby to represent Mr. Bonser and Cedar Waters at the hearing on the temporary injunction, the superior court fully advised Mr. Bonser of his right to be represented by a New Hampshire attorney. The superior court also explained that if Mrs. Bixby continued to represent Mr. Bonser, he would not be able to challenge future orders of the superior court on the ground that he was not properly represented.

The superior court order would have permitted Mrs. Bixby to represent Mr. Bonser and Cedar Waters provided she had filed an affidavit with the superior court listing the following information: the name and address of each person she had represented in New Hampshire State courts in the past three years; the date and court in which each appearance had occurred; the nature of each case; her education, training and experience in matters dealing with the legal rights of others; and the outcome of each court action. Further, the superior court order required that Mrs. Bixby file the affidavit within two weeks after receipt of notice of the scheduled hearing on the merits of the petition to enjoin the alleged zoning violations, and only then would the court consider approval of her representation of Mr. Bonser and Cedar Waters.

On December 14, 1981, Mr. Bonser filed a claim for a jury trial in Rockingham County Superior Court. After a hearing on Mr. Bonser's claim, the Superior Court (Dalianis, J.) on January 27, 1982, offered to empanel an advisory jury pursuant to RSA 519:23 and RSA 491:16. The court order stated:

"This is an equity proceeding. RSA 519:23 provides that the Court may direct proper issues to be framed for the trial by jury on any question of fact; further, RSA 491:16 provides that any such verdict is advisory only."

Accordingly, the superior court order granted a jury trial, upon condition that

"within 30 days of this order they [Mr. Bonser and/or Cedar Waters] submit proposed issues of fact to the Court. If no issues of fact are submitted, defendants will be deemed to have waived their request for trial by jury and the matter shall be scheduled on the next thereafter available issues to Court list. If issues of fact are so submitted, the case shall be tried during April term 1982."

Mr. Bonser never took advantage of this offer within the required thirty-day deadline by submitting proposed issues of fact to the superior court. Thus, he waived his claim for an advisory jury trial under the terms of the superior court order.

The equity hearing on the merits of the town's petition to enjoin was held in the Superior Court (Contas, J.) on June 3, 1982. The town's counsel moved to prevent Mrs. Bixby from representing Mr. Bonser in the case, asserting that Mrs. Bixby had failed to comply with the December 15, 1981 superior court order by not filing the required affidavit. Mrs. Bixby admitted to the presiding justice that she had not complied with the court order. She informed the presiding justice that her noncompliance was due to her belief that the order was "invalid" and that "[t]he judge was biased and prejudiced." Mrs. Bixby asserted that "Mr. Bonser has a right to counsel of his choice whether they belong to the bar or whether they are private citizens."

The superior court ruled that Mrs. Bixby had not complied with the court order and therefore was prevented from participating in the proceedings.

At the hearing, the town submitted its case on the pleadings without objection from Mr. Bonser. No answer had been filed by Mr. Bonser, but, prior to the hearing, Mr. Bonser had filed two special appearances, "in propria persona, retaining right of co-counsel of choice," seeking dismissal of the petition to enjoin. The town's counsel also introduced into evidence certain exhibits, an offer of proof, and the testimony of one witness that a seventh trailer had been placed on the property in question after the petition to enjoin had been filed by the town.

During the hearing, Mr. Bonser relied on his assertions that the town's zoning ordinance was unconstitutional and that the superior court therefore did not have jurisdiction. He alleged that he was entitled to a jury trial in the equity proceeding.

On June 10, 1982, the Superior Court (Contas, J.) granted the town's petition to enjoin the zoning violations of Mr. Bonser and Cedar Waters. The injunction required Mr. Bonser and Cedar Waters to refrain from using or occupying the mobile homes until they complied with the pertinent regulations and ordinances of the town by September 1, 1982. If Mr. Bonser and Cedar Waters failed to comply with the town's zoning laws by that date, the court ordered them to "remove the mobile homes from the property and upon failure to have them removed the Town of Nottingham may have them removed at the defendants' [Mr. Bonser and Cedar Waters] expense."

A copy of the superior court order was mailed to Robert Bonser and Rita G. Bixby in a letter from the superior court clerk, Unwar J. Samaha, dated June 11, 1982. In the letter, the clerk informed Mr. Bonser and Mrs. Bixby of Mr. Bonser's right to appeal the superior court order:

"This decree will become final unless a Notice of Appeal is filed with the Supreme Court within 30 days from the date of this letter, pursuant to Supreme Court Rule 7. If you have any questions concerning an Appeal, you should contact the Supreme Court, Concord, New Hampshire."

No such appeal was filed with this court.

On October 13, 1982, the town filed a "motion for contempt and modification of decree" in the superior court, alleging that Mr. Bonser and Cedar Waters had failed and refused to comply with the June 10, 1982 superior court order. On November 4, 1982, Mr. Bonser filed a special appearance in superior court in which he admitted, on behalf of himself and Cedar Waters, that he had failed and refused to comply with the order of the superior court dated June 10, 1982.

At a hearing in the superior court on November 23, 1982, Mr. Bonser, appearing with Mrs. Bixby, did not challenge the town's factual allegations. Mr. Bonser, again, asserted his right to a jury trial alleged that the superior court was without jurisdiction, and challenged the constitutionality of the town's zoning ordinances.

The Superior Court (Wyman, J.) found Mr. Bonser in civil contempt for willful refusal to comply with the superior court order of June 10, 1982. Mr. Bonser's exceptions to the contempt order were noted.

The superior court assessed Mr. Bonser a fine for failure to comply with the order by the September 1, 1982, deadline and imposed fines for "each and every day" Mr. Bonser remained in contempt on or...