High Court hears arguments in Canterbury legal dispute
A planning dispute that has turned into a nearly five-year saga between Canterbury officials and a former landowner finally sputtered before the state Supreme Court this week.
Town officials have been waiting since 2009 for Calvin Dunn Jr. to comply with a court order that found he had knowingly disregarded local law by removing 30,000 cubic yards of gravel from his property along Route 106 without a permit. Dunn has been found in contempt of the ruling three times, most recently in 2012, when a judge determined he had not only failed to pay the town prescribed damages and legal fees, but had also fraudulently tried to transfer to his daughters a separate Belmont parcel that the town had been granted authority to sell.
Dunn’s attorney, Allen Lucas, has appealed the 2012 decision, saying Merrimack County Superior Court Judge Richard McNamara miscalculated the repercussions of his client’s noncompliance. McNamara concluded that Dunn’s actions had effectively voided a settlement agreement reached between him and town officials in 2011, which stipulated that he was to pay them $12,500 and 18 truckloads of gravel. The town received a check the day after the pact was signed, but it was canceled before they could deposit it.
Lucas argued that Dunn’s failure to pay should not void the contract, but rather signify a breach of its conditions.
By voiding the contract, McNamara allowed the town to move forward with the sale of the Belmont property, of which officials believed Dunn to be the sole owner. They solicited offers on the land and secured a potential buyer willing to pay $150,000 for it. But Dunn’s ex-wife objected to the sale, arguing that she had a vested interest in it. In addition, Dunn recorded a new deed on the property in late 2011, after the settlement agreement had been signed, which included the names of his two daughters.
McNamara dismissed Dunn’s ex-wife’s interest in the land and deemed the 2011 transfer “fraudulent.”
“Dunn transferred the Belmont property after the town attached his property, after two contempt orders had been issued against him, after the town recorded the court’s order appointing a commissioner, and after (town representatives) began negotiating its sale,” he wrote. In other words, McNamara said, Dunn tried to sell the land only when “it appeared certain that he would lose it to a bona fide purchaser.”
Supreme Court Justice Robert Lynn sounded in agreement.
“I’ll be honest,” he told Lucas. “If I had been the trial court, your client would have been in jail until (the transfer) was returned, until that had been undone.”
Lucas said Dunn recorded the deed because he realized he had not properly done so years earlier.
“Let’s assume that that’s true,” Lynn said. “Now there’s all this dispute going on, and they think it’s okay – without the court’s input – to record a deed? That’s baloney.”
The town’s attorney, Matthew Serge, told justices – excluding Justice James Bassett, who recused himself because of his previous role as a Canterbury selectman – that he and town officials were tired of “chasing and chasing and chasing what should have been a very nominal sum to begin with.”
“This case should have never gotten this far,” he said.
Lynn seemed to sympathize.
“Correct me if I’m wrong, but you’ve sort of had it,” he said. “You’ve got a deposited check that is then, the funds are then withdrawn. You have a recorded deed that comes in without seeking any court approval. And, I mean, my impression would be, if I were in your position, that I don’t want further promises. I want to execute what I’m legally entitled to execute.”
“Precisely,” Serge said.
(Jeremy Blackman can be reached at 369-3319, email@example.com or on Twitter @JBlackmanCM.)