Penney v. Middleton CV-92-555-B 08/24/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Penney, et al.
v. Civil No. 92-555-B
Town of Middleton, et al.
O R D E R
Defendants, the Town of Middleton, Jeremy Johnson, and Roy
Snyder, move for summary judgment on most of the remaining claims
against them on the grounds of collateral estoppel and accord and
satisfaction. Defendant Calvin Roach, pro se, also invokes the
collateral estoppel doctrine in support of his summary judgment
motion. I deny both motions. I also address a discovery
guestion raised by Calvin Roach.
I. BACKGROUND
The plaintiffs accept the defendants' recitation of the
procedural facts of the prior proceedings that form the basis for
the defendants' arguments. Therefore, I adopt the defendants'
description of the prior proceedings and summarize other material
facts consonant with the familiar summary judgment standard.1
1 Summary judgment is appropriate only when the record shows that there is not a genuine dispute as to the material A. The Declaratory Judgment Action and the First HUD Complaint
The Penneys moved to Middleton in 1981, buying a home that
needed substantial renovation. After some difficulty, they were
allowed a property tax exemption in 1983 due to the fact that Mr.
Penney was deemed to be legally blind.2
In 1986, a housing inspector working for the Strafford
County Regional Planning Commission inspected the Penneys' house
and determined that it reguired substantial improvements that
could potentially be covered by funds made available pursuant to
a Community Development Block Grant.3 However, due to confusion
over the Penneys' income status, officials first indicated that
they would receive a 100% grant but ultimately determined that
they were eligible for only a 50% grant.
facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). I must view the record in the light most favorable to the non-moving party, the plaintiffs, and resolve all reasonable factual inferences in their favor. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
2 See N.H. Rev. Stat. Ann. § 72:37 (Supp. 1994).
3 The United States Department of Housing and Urban Development ("HUD") provided Community Development Block Grant program funds through the state to be disbursed through local governments for particular purposes to eligible applicants. See 42 U.S.C.A. § 5303, et. sea. (West 1995).
2 In April 1988, the Penneys petitioned in Strafford County
Superior Court for a declaratory judgment that they were entitled
to a 100% grant. The next month they filed a complaint with HUD,
their first of five complaints, alleging that the town had
discriminated against them in administering the block grant
program because of Mr. Penney's visual disability in violation of
the Rehabilitation Act. The Penneys' lawsuit was dismissed in
December 1989 when the court found that their allegations lacked
merit. The 1988 HUD complaint resulted in a finding in February
1990 that the town had complied with the Rehabilitation Act.
B. The Gun Permit Litigation
On February 2, 1990, Middleton Police Chief, Jeremy Johnson,
revoked a pistol permit that Mr. Penney had first obtained in
1984 and had renewed every two years thereafter.Penney filed a
petition in Rochester District Court to have his permit restored,
alleging that his permit was revoked unlawfully based on his
visual impairment. Penney further alleged that Johnson and the
town had been aware of his impairment during thesix years he had
held a permit. He claimed that the permit's revocation was
unconstitutional and an abuse of discretion. Following a hearing
on May 3, 1990, the district court denied his appeal of Johnson's
decision to revoke his permit, ruling that in light of his visual
3 impairment, Penney had failed to carry his burden of proof that
he was a suitable person to carry a pistol. Penney appealed the
district court's decision to the New Hampshire Supreme Court.
When on-going settlement negotiations later proved fruitful,
Penney asked that his case be remanded to the district court and
then to the town. The supreme court remanded the case to the
district court. However, the district court refused to remand
the case to the town and instead concluded that its earlier
ruling did not prevent Penney from reapplying to the town for a
new permit. Relying on this order, Penney abandoned the district
court action, reapplied for a permit and received the permit
after the town removed Johnson's permit authority. Nevertheless,
when Johnson regained his permit authority in 1991, he again
revoked Penney's gun permit.
C. Subsequent HUD Complaints
In February 1990, a few days after HUD's final determination
of the Penneys' first complaint in the town's favor and Johnson's
initial decision to revoke Mr. Penney's pistol permit, the
Penneys filed a second HUD complaint charging the town with
retaliation and discrimination against them because of their
participation in the prior complaint. One of the alleged
retaliatory acts was Johnson's revocation of Mr. Penney's pistol
4 permit. The second HUD complaint was resolved by a voluntary
compliance agreement between the town and HUD in September 1991.
During the same time period, the Penneys filed three other
complaints with HUD. The third complaint is the subject of the
defendants' summary judgment motion.4 According to HUD's July
23, 1990, notice to the town, this complaint alleged that the
town discriminated against the Penneys in determining whether
they were eligible to participate in the block grant program.
The third complaint was resolved on September 24, 1990, by a
settlement agreement between the town and the Penneys in which
the town agreed to award the Penneys funds under the program and
the Penneys agreed to withdraw their complaint and not commence
any additional actions against the town that were based on the
town's administration of the block grant program prior to the
date of the agreement.
D. The MCCG Litigation
On May 31, 1991, the Middleton Concerned Citizens Group,
Inc. ("MCCG"), including defendants Roy Snyder and Calvin Roach,
filed suit against the town and two selectmen in superior court.
4 HUD administratively closed the fourth and fifth complaints.
5 MCCG sought a declaratory judgment and injunction to hold the
selectmen, and the town, accountable for their handling of
certain town affairs, including money spent on legal expenses in
the Penneys' unsuccessful declaratory judgment action against the
town. MCCG later sought to amend its complaint to add Mr. Penney
as a party and to prevent the town from paying the Penneys'
expenses as reguired in the September 1991 voluntary settlement
agreement between HUD and the town. When the court granted a
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Penney v. Middleton CV-92-555-B 08/24/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Penney, et al.
v. Civil No. 92-555-B
Town of Middleton, et al.
O R D E R
Defendants, the Town of Middleton, Jeremy Johnson, and Roy
Snyder, move for summary judgment on most of the remaining claims
against them on the grounds of collateral estoppel and accord and
satisfaction. Defendant Calvin Roach, pro se, also invokes the
collateral estoppel doctrine in support of his summary judgment
motion. I deny both motions. I also address a discovery
guestion raised by Calvin Roach.
I. BACKGROUND
The plaintiffs accept the defendants' recitation of the
procedural facts of the prior proceedings that form the basis for
the defendants' arguments. Therefore, I adopt the defendants'
description of the prior proceedings and summarize other material
facts consonant with the familiar summary judgment standard.1
1 Summary judgment is appropriate only when the record shows that there is not a genuine dispute as to the material A. The Declaratory Judgment Action and the First HUD Complaint
The Penneys moved to Middleton in 1981, buying a home that
needed substantial renovation. After some difficulty, they were
allowed a property tax exemption in 1983 due to the fact that Mr.
Penney was deemed to be legally blind.2
In 1986, a housing inspector working for the Strafford
County Regional Planning Commission inspected the Penneys' house
and determined that it reguired substantial improvements that
could potentially be covered by funds made available pursuant to
a Community Development Block Grant.3 However, due to confusion
over the Penneys' income status, officials first indicated that
they would receive a 100% grant but ultimately determined that
they were eligible for only a 50% grant.
facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). I must view the record in the light most favorable to the non-moving party, the plaintiffs, and resolve all reasonable factual inferences in their favor. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
2 See N.H. Rev. Stat. Ann. § 72:37 (Supp. 1994).
3 The United States Department of Housing and Urban Development ("HUD") provided Community Development Block Grant program funds through the state to be disbursed through local governments for particular purposes to eligible applicants. See 42 U.S.C.A. § 5303, et. sea. (West 1995).
2 In April 1988, the Penneys petitioned in Strafford County
Superior Court for a declaratory judgment that they were entitled
to a 100% grant. The next month they filed a complaint with HUD,
their first of five complaints, alleging that the town had
discriminated against them in administering the block grant
program because of Mr. Penney's visual disability in violation of
the Rehabilitation Act. The Penneys' lawsuit was dismissed in
December 1989 when the court found that their allegations lacked
merit. The 1988 HUD complaint resulted in a finding in February
1990 that the town had complied with the Rehabilitation Act.
B. The Gun Permit Litigation
On February 2, 1990, Middleton Police Chief, Jeremy Johnson,
revoked a pistol permit that Mr. Penney had first obtained in
1984 and had renewed every two years thereafter.Penney filed a
petition in Rochester District Court to have his permit restored,
alleging that his permit was revoked unlawfully based on his
visual impairment. Penney further alleged that Johnson and the
town had been aware of his impairment during thesix years he had
held a permit. He claimed that the permit's revocation was
unconstitutional and an abuse of discretion. Following a hearing
on May 3, 1990, the district court denied his appeal of Johnson's
decision to revoke his permit, ruling that in light of his visual
3 impairment, Penney had failed to carry his burden of proof that
he was a suitable person to carry a pistol. Penney appealed the
district court's decision to the New Hampshire Supreme Court.
When on-going settlement negotiations later proved fruitful,
Penney asked that his case be remanded to the district court and
then to the town. The supreme court remanded the case to the
district court. However, the district court refused to remand
the case to the town and instead concluded that its earlier
ruling did not prevent Penney from reapplying to the town for a
new permit. Relying on this order, Penney abandoned the district
court action, reapplied for a permit and received the permit
after the town removed Johnson's permit authority. Nevertheless,
when Johnson regained his permit authority in 1991, he again
revoked Penney's gun permit.
C. Subsequent HUD Complaints
In February 1990, a few days after HUD's final determination
of the Penneys' first complaint in the town's favor and Johnson's
initial decision to revoke Mr. Penney's pistol permit, the
Penneys filed a second HUD complaint charging the town with
retaliation and discrimination against them because of their
participation in the prior complaint. One of the alleged
retaliatory acts was Johnson's revocation of Mr. Penney's pistol
4 permit. The second HUD complaint was resolved by a voluntary
compliance agreement between the town and HUD in September 1991.
During the same time period, the Penneys filed three other
complaints with HUD. The third complaint is the subject of the
defendants' summary judgment motion.4 According to HUD's July
23, 1990, notice to the town, this complaint alleged that the
town discriminated against the Penneys in determining whether
they were eligible to participate in the block grant program.
The third complaint was resolved on September 24, 1990, by a
settlement agreement between the town and the Penneys in which
the town agreed to award the Penneys funds under the program and
the Penneys agreed to withdraw their complaint and not commence
any additional actions against the town that were based on the
town's administration of the block grant program prior to the
date of the agreement.
D. The MCCG Litigation
On May 31, 1991, the Middleton Concerned Citizens Group,
Inc. ("MCCG"), including defendants Roy Snyder and Calvin Roach,
filed suit against the town and two selectmen in superior court.
4 HUD administratively closed the fourth and fifth complaints.
5 MCCG sought a declaratory judgment and injunction to hold the
selectmen, and the town, accountable for their handling of
certain town affairs, including money spent on legal expenses in
the Penneys' unsuccessful declaratory judgment action against the
town. MCCG later sought to amend its complaint to add Mr. Penney
as a party and to prevent the town from paying the Penneys'
expenses as reguired in the September 1991 voluntary settlement
agreement between HUD and the town. When the court granted a
temporary injunction against paying the money, the Penneys sought
to intervene in the action to dissolve the restraining order and
reguested attorney's fees. The superior court first dissolved
the restraining order and granted the Penneys' motion to
intervene. Later the court dismissed all of M C C G 's claims and
summarily denied all reguests for attorney's fees.
I now address the issues raised by the defendants in their
motion for summary judgment.
II. DISCUSSION
The defendants argue that the prior proceedings bar most of
the Penneys' claims against them. I consider the preclusive
effect of each proceeding in turn as the defendants have
presented them.
6 A. Whether the District Court's Decision Precludes the Pennevs From Litigating the Issue of Wrongful Revocation of Richard Penney's Pistol Permit
Many of the Penneys' claims against the town and Chief
Johnson are based on their allegation that Johnson twice
wrongfully revoked Mr. Penney's pistol permit. The Penneys claim
that the permit revocations violated § 504 of the Rehabilitation
Act by discriminating against a handicapped person based solely
on his handicap and also by discriminating or retaliating against
persons who file a complaint with HUD, which is prohibited by
HUD's Rehabilitation Act regulation, 24 C.F.R. § 8.56(h). The
defendants contend that the district court's ruling that Mr.
Penney was not a suitable person to hold a pistol permit
precludes the Penneys from litigating certain facts that are
essential to their claims. The Penneys contest the preclusive
effect of the district court ruling.
Because the defendants advance the preclusive effect of a
New Hampshire state district court decision, I apply New
Hampshire's collateral estoppel rule. See Commercial Assocs. v.
Tilcon Gammino, Inc., 998 F.2d 1092, 1096 (1st Cir. 1993). The
following elements of collateral estoppel are well-established:
(1) the issue or fact subject to estoppel must be identical in
both actions; (2) the first action must have resulted in a final
7 resolution of the issue or fact on the merits; (3) the party to
be estopped must be the same or in privity with the party in the
first action; (4) the party to be estopped must have had a full
and fair opportunity to litigate the issue in the first action;
and (5) the issue must have been essential to the final judgment
in the first action. Simpson v. Calivas, 139 N.H. 1, ___ , 650
A.2d 318, 323 (1994) (guoting Daigle v. Portsmouth, 129 N.H. 561,
570 (1987) ) .
Even if I were to accept defendants' contention that the
other elements of an estoppel are present, I cannot agree that
the district court finally resolved the issue as to whether Mr.
Penney was a "suitable person" to hold a pistol permit. In
refusing to remand the case to the town, the district court ruled
that "the court finds no bar either in the statute or in this
court's decision dated May 3, 1990 which would prevent Mr. Penney
from filing a new pistol permit application with the town of
Middelton, should he so desire." Since the record contains no
indication that Penney's visual impairment had changed between
the date of the court's May 3, 1990, ruling and the above-guoted
order, it is plain that the district court did not consider the
May 3, 1990, order a final resolution of whether Penney was a
"suitable person" to hold a gun permit. Under these circumstances, I decline to give collateral estoppel effect to
the May 3, 1990, order. See, e.g.. Restatement (Second) of
Judgments § 14 (1982) (stating the rule for issue preclusion that
where prior determinations of issues are inconsistent, the last
determination is given preclusive effect) .
B. Whether the Superior Court's Decision Not to Award Attorney's Fees in the MCCG Suit Precludes the Pennevs' Claims
Defendants Roy Snyder and Calvin Roach, former officers of
MCCG, argue that the New Hampshire Superior Court's denial of the
Penneys' reguest for attorney's fees in the MCCG suit, amounts to
a finding that they did not act frivolously or in bad faith in
attempting to join Mr. Penney in the suit. Therefore, Snyder and
Roach contend, the Penneys are precluded from maintaining their
claims for malicious prosecution or § 504 retaliation. I
disagree.
An award of attorney's fees is left to the discretion of the
trial court. Maguire v. Merrimack M u t . Ins. Co . , 133 N.H. 51, 56
(1990). In the present case, the court did not explain its
reasons for denying the Penneys' reguest for attorney's fees.
Therefore, I cannot determine whether the court in fact
determined that the Penneys had failed to prove that the MCCG
plaintiffs had acted in bad faith. Accordingly, I decline to give collateral estoppel effect to this ruling.
C. Whether the 1990 Settlement Agreement Precludes the Pennevs' Claims Arising Before the Agreement
Finally, the defendants point to the settlement agreement
between the town and the Penneys signed in September 1990 as an
accord and satisfaction of the Penneys' current claims.5 The
defendants argue that the 1990 settlement agreement bars all of
the Penneys' claims based on actions by the town and any of its
officials before the date of the agreement. The agreement does
not support the defendants' interpretation.
The meaning of unambiguous contract language presents a
guestion of law for the court to resolve. Butler v. Walker
Power, 137 N.H. 432, 435 (1993). The Penneys' third HUD
complaint, which was resolved by the settlement agreement in
September 1990, alleged that the town had discriminated against
them in determining their total income for purposes of
eligibility for the block grant program. In the settlement
agreement, the town agreed to award the Penneys $18,000 under the
5 The Penneys' complaints to HUD resulted in two different agreements: a settlement agreement between the Penneys and the town in September 1990 settling their third complaint, and a voluntary compliance agreement between the town and HUD in September 1991 settling their second complaint.
10 block grant program. In exchange, the Penneys agreed to withdraw
their third HUD complaint and not to litigate "any actions taken
by the Town of Middleton or the State of New Hampshire with
regard to the administration of Middleton's Community Development
Block Grant Program prior to September 1990."
The plain language of the September 1990 settlement
agreement only precludes the Penneys from litigating claims
arising from the discriminatory administration of the block grant
program. The Penneys make no such claims in this action. Thus,
their claims are not barred by the doctrine of accord and
satisfaction.
D. Discovery Question
Finally, defendant Calvin Roach asks whether he is obligated
to respond to the Penneys' interrogatories and reguest for
production of documents. I direct Mr. Roach to Federal Rule of
Civil Procedure 33 governing interrogatories and Rule 34
governing production of documents. He is reguired to comply with
the Rules of discovery as are all parties to the litigation. If
he finds that the reguests submitted to him by the Penneys do not
comply with the applicable rules, and if he wishes to object on
valid grounds, he may file a motion for a protective order with
the court stating his grounds.
11 III. CONCLUSION
For the foregoing reasons defendants' motions for summary
judgment (documents 175 and 178) are denied.
SO ORDERED.
Paul Barbadoro United States District Judge
August 24, 1995
cc: Gordon Bleakney, Esg. Timothy Bates, Esg. Cynthia Satter, Esg. Edward Philpot, Esg. Calvin Roach, pro se Edward VanDorn, Esg.