Town of Milford v. Johnson

Decision Date14 October 1982
Docket NumberNo. 81-292,81-292
Citation451 A.2d 1295,122 N.H. 875
CourtNew Hampshire Supreme Court

Brown & Nixon P.A., Manchester (David W. Hess, Manchester, on the brief and orally), for plaintiff.

Jeffry A. Schapira, Manchester, by brief and orally, for defendant.

BROCK, Justice.

The only issue to be decided in this appeal is whether the Trial Court's (DiClerico, J.) order requiring the defendant, Avery Johnson, to pay attorney's fees incurred by the plaintiff, Town of Milford, which prevailed against him in an action for injunctive relief, was proper under Harkeem v. Adams, 117 N.H. 687, 377 A.2d 617 (1977).

The defendant owns forty-seven acres of land in Milford, New Hampshire. Sometime before August 1980, he began construction of a "solar home/solar laboratory" in the center of his tract. On several occasions since that time, town officials have ordered the defendant to cease and desist construction and requested that he apply for a building permit. The defendant persistently refused to comply with these requests, arguing that the Milford zoning ordinance which requires building permits for all structures, violated his constitutional right to privacy. In support of his argument and his decision not to apply for a building permit, the defendant relied upon dictum he found in this court's decision in Carey v. Westmoreland, 120 N.H. 374, 415 A.2d 333 (1980), stating that liberty "requires that government not interfere with our lives so long as we do no injury to others." Id. at 376, 415 A.2d 333. He argued that his case is similar to Carey because the building he was constructing with his own hands and in his spare time, was located in the middle of his forty-seven acres, and was not visible to anyone beyond the boundaries of the parcel; thus it "did harm to no one."

In November 1980, the town filed a petition for temporary and permanent injunctive relief against the defendant seeking: to enjoin him from further construction; to require him to apply for a building permit; and to compel him to pay fines, costs and attorney's fees. The defendant appeared pro se in all proceedings before the trial court. After a hearing, the trial court ordered the defendant to apply for a building permit and, finding that the defendant's refusal to apply for a building permit had been "deliberate and wanton," it ordered him to pay the plaintiff's costs and attorney's fees in the amount of $1,724.51. Pursuant to that order, the defendant applied for and received a building permit, but he refused to pay the attorney's fees and requested a rehearing on that issue. After a rehearing, the trial court reaffirmed its previous order concerning the attorney's fees, and the defendant appealed.

In its award of attorney's fees to the plaintiff, the trial court relied upon this court's decision in Harkeem v. Adams, which establishes standards for awarding attorney fees in certain cases. See 117 N.H. at 691, 377 A.2d at 619. It found that the defendant's failure to comply with the Milford zoning ordinance, supported a finding of bad faith, or conduct so contemptuous, or outrageous, as to allow an exception to the general rule that parties pay their own counsel fees. See Pugliese v. Town of Northwood, 119 N.H. 743, 752, 408 A.2d 113, 119 (1979). It is well settled that our scope of review in cases such as this is limited. Gauthier v. Robinson, 122 N.H. 365, ---, 444 A.2d 564, 566 (1982). We nevertheless consider that the facts before the trial court do not support its finding of bad faith, contemptuous, or outrageous conduct in this case. It is apparent that the defendant did little more than assert what one could honestly believe were his constitutional rights against the town in the American tradition of "fighting City Hall." But see Manchester v. Hodge, 75 N.H. 502, 77 A. 76 (1910). His conduct therefore does not fall under any of the exceptions to the general rule set forth in Harkeem v. Adams, 117 N.H. at 690-91, 377 A.2d at 619; therefore, he should not be penalized for asserting his rights by having to pay the town's attorney's fees. Id. at 690, 377 A.2d at 618.


KING, C.J., did not sit; BOIS, J., dissented; the others concurred.

BOIS, Justice, dissenting:

The material question before us is whether the trial court abused its discretion when it found that the defendant's repeated failure to comply with the Milford Ordinance constituted bad-faith conduct supporting an award of attorney's fees under Harkeem v. Adams, 117 N.H. 687, 377 A.2d 617 (1977).

The majority, citing Gauthier v. Robinson, 122 N.H. 365, ---, 444 A.2d 564, 566 (1982), recognizes that "it is well settled that our scope of review in cases such as this is limited." The majority, however, ignores the well-established principle of Gauthier that this court will not substitute its judgment for that of the trier of fact and that we will uphold the findings and rulings of the trier of fact unless they are unsupported by the evidence or are erroneous as a matter of law....

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  • MaGuire v. Merrimack Mut. Ins. Co.
    • United States
    • New Hampshire Supreme Court
    • April 13, 1990
    ...Drop Anchor Realty Trust v. Hartford Fire Ins. Co., 126 N.H. 674, 680-81, 496 A.2d 339, 343-44 (1985); Town of Milford v. Johnson, 122 N.H. 875, 876, 451 A.2d 1295, 1296 (1982); Paquette v. St. Clair, 119 N.H. 404, 407, 402 A.2d 182, 184 (1979). We found, for example, in Indian Head Nationa......

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