Knox Leasing v. Turner

562 A.2d 168, 132 N.H. 68, 1989 N.H. LEXIS 74
CourtSupreme Court of New Hampshire
DecidedAugust 9, 1989
DocketNo. 87-242; No. 88-107
StatusPublished
Cited by10 cases

This text of 562 A.2d 168 (Knox Leasing v. Turner) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knox Leasing v. Turner, 562 A.2d 168, 132 N.H. 68, 1989 N.H. LEXIS 74 (N.H. 1989).

Opinion

Thayer, J.

These are two separate cases which have been consolidated by this court for decision. In No. 87-242, John A. Settle, Sandra A. Fisher, and Alexander Jaroma, members of Knox Leasing, an “unincorporated association operated for profit,” see Shortlidge v. Gutoski, 125 N.H. 510, 513, 484 A.2d 1083, 1086 (1984) (when an association is organized for profit its members are treated as partners), appeal from an order of the Superior Court (Cann, J.) precluding Mr. Settle from appearing pro se, even in conjunction with the other members, on behalf of Knox Leasing in an action to enjoin the division of motor vehicles’ refusal to issue a certificate of title in the name of the association. In No. 88-107, Robert A. Bonser, Mary T. Bonser, and Terry L. Bonser, members of the Cedar Waters Village partnership, appeal from an order of the Superior Court (McHugh, J.) requiring that the partnership be represented by licensed counsel or face default in its attempt to intervene in a fraudulent conveyances action involving partnership property. We reverse in No. 87-242; and we reverse in part, affirm in part and remand in No. 88-107.

The facts of No. 87-242 are as follows. In June 1986, the plaintiffs attempted to register an automobile with the New Hampshire Department of Safety, Division of Motor Vehicles (the Division) in the name of Knox Leasing. In the space provided for the owner’s signature, the application contained in script the words “Knox Leasing.” The owner’s date of birth was provided as “06/30/87.” As of the date of application, Knox Leasing was not a registered trade name. See RSA 349:1. In addition, the address provided on the application was a personal residence.

[70]*70Detective David Eastman of the New Hampshire State Police intercepted the application and upon further investigation determined that it contained false statements. The Division declined to issue a certificate of title, see RSA 261:7 (department shall issue a certificate of title only when satisfied as to genuineness and regularity of the application), and Detective Eastman sought to institute criminal action against the plaintiff Alexander Jaroma. Subsequently, Knox Leasing registered with the Secretary of State pursuant to RSA 349:1, and no criminal proceedings were instituted.

The plaintiffs, “Knox Leasing, an unincorporated association operated for profit, ... and its Directors, John Alden Settle, Jr., ... Diane Isabelle, ... and Alexander Jaroma,” then sought to enjoin the Division from refusing to issue a certificate of title in the name of Knox Leasing. At a hearing before a master on the parties’ cross motions for summary judgment, the State moved to preclude Mr. Settle from appearing pro se on behalf of Knox Leasing. The Master (Mayland H. Morse, Jr., Esq.) recommended that Mr. Settle be required to obtain counsel before the proceedings progressed further. In accordance with this recommendation, the Superior Court (Cam, J.) ruled in effect that Mr. Settle could not, even in conjunction with the other two members of the association, represent Knox Leasing absent the appearance of counsel. Mr. Settle, Ms. Isabelle, and Mr. Jaroma, as members of Knox Leasing, appealed this determination.

Following the death of Diane Isabelle, on August 13, 1987, Sandra A. Fisher became a member of the Knox Leasing association on September 10, 1987, and has since been substituted as a party in this appeal. Also since the filing of the notice of appeal, the Division issued a certificate of title in the name of Knox Leasing on June 24, 1988. The State suggested at oral argument, however, that the issuance of the certificate of title was a “clerical error” and that the Division may seek to revoke it at any time, in which case the plaintiffs would likely pursue their request for an injunction. Given the substantial likelihood that the issue of Mr. Settle’s appearance in Knox Leasing association proceedings will therefore again come before the trial court and given that, as the State points out, the issues presented have been briefed and argued already, we see little to be accomplished by dismissing this appeal for want of controversy. See Moody v. Cunningham, 127 N.H. 550, 553, 503 A.2d 819, 821 (1986) (this court is not bound by rigid rules in determining whether an appeal is moot; it is a matter of convenience and discretion).

[71]*71The procedural background of No. 88-107 is both lengthy and complicated, see generally Town of Nottingham v. Bonser, 131 N.H. 120, 552 A.2d 58 (1988), cert. denied, 109 S. Ct. 3163 (1989), and we set forth here only those facts necessary to an understanding of the issues raised in this appeal. In March 1987, the plaintiff, the Town of Nottingham, filed a petition to attach certain property owned by Robert A. Bonser and Cedar Waters Village, Inc. to cover fines accrued and accruing against them for continuing violations of a contempt order. The parties do not dispute that in May 1987, Cedar Waters Village, Inc. was liquidated, and the property was conveyed to Robert A. Bonser and Mary T. Bonser as joint tenants. Subsequently, Robert and Mary Bonser further conveyed the same real estate to a general partnership called Cedar Waters Village Partnership consisting of Robert, Mary, and Terry L. Bonser.

The Superior Court (Nadeau, J.) granted a petition for attachment of the property in June 1987. The plaintiff then filed a motion to set aside the conveyances as fraudulent. In May 1987, Cedar Waters Village Partnership, as the new owner of the property, had filed a motion to intervene in the proceedings against Robert Bonser and Cedar Waters Village, Inc. The motion was filed by “Cedar Waters Village Partnership ... by all of its partners ... pro se.” On January 22, 1988, the Superior Court (McHugh, J.) granted the partnership’s motion to intervene, but only as to the fraudulent conveyances action.

On February 10, 1988, the State, “for the limited purpose of seeking relief against the unauthorized practice of law,” moved to intervene and to require appearance of counsel for the partnership. The plaintiff also raised this issue in a pleading of the same date. Following a hearing, the Superior Court (McHugh, J.) denied the State’s motion to intervene, but treated the issue of counsel as raised by the plaintiff and ruled that the continued intervention by the partnership would be permitted only upon the partnership’s obtaining representation by licensed counsel. Terry Bonser and Mary Bonser then filed a motion to intervene as joint tenants. The trial court denied the motion, finding that the defendants had elected to take title to the property as a partnership rather than as joint tenants, and therefore, “they must be bound by the rules of partnership designation.”

Robert, Mary, and Terry Bonser, as members of Cedar Waters Village Partnership, appealed the trial court’s order requiring the partnership to be represented by counsel. Terry and Mary Bonser appealed the order denying their motion to intervene as joint tenants.

[72]*72In New Hampshire there exists a strong public policy against the unauthorized practice of law. State v. Settle, 124 N.H. 832, 835, 480 A.2d 6, 7 (1984) (Settle I).

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Bluebook (online)
562 A.2d 168, 132 N.H. 68, 1989 N.H. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knox-leasing-v-turner-nh-1989.