Sanjeev Lath v. Scott Sample

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0002, Sanjeev Lath v. Scott Sample, the
court on June 7, 2018, issued the following order:

Having considered the plaintiff’s brief, the defendant’s memorandum of
law, and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We vacate and remand.

The plaintiff, Sanjeev Lath, appeals an order of the Circuit Court (Lyons,
J.) denying his motion to vacate a prior judgment issued in favor of the
defendant, Scott Sample. See Lath v. Sample, No. 2016-0217, 2016 WL
6472580 (N.H. Sept. 15, 2016) (Lath I). This is the second motion the plaintiff
has filed seeking to vacate the judgment in Lath I. See Lath v. Sample, No.
2016-0596, 2017 WL 2797855 (N.H. Apr. 7, 2017) (Lath II) (upholding order
denying motion to vacate judgment in Lath I on the basis of fraud).

In the present motion, the plaintiff asserted that the same trial judge who
had issued the final orders in Lath I and Lath II had recently disqualified
himself in two unrelated cases after learning that counsel for the defendant
had represented a party whose interest was adverse to the plaintiff in those
cases. The plaintiff further asserted that he was unaware of the basis for the
disqualification when the trial judge had issued the judgment in Lath I, and
had only learned of the basis when the trial judge disqualified himself in the
unrelated cases. He requested that the trial court vacate the decision in Lath I
in accordance with Blaisdell v. City of Rochester, 135 N.H. 589 (1992).

In denying the motion to vacate, the Trial Judge (Lyons, J.) acknowledged
that counsel for the defendant, John F. Bisson, Esquire, is on the judge’s
“conflict list,” and that the purpose of the conflict list is to prevent the trial
court’s clerk’s office from presenting a case to the judge in which there is a
conflict of interest. However, the trial judge also observed that Lath I had been
tried before a judicial referee (Kent, R.), see Lath I, 2016 WL 6472580, at *1;
see also Lath II, 2017 WL 2797855, at *1, that nothing on the face of the
referee’s recommended order revealed Attorney Bisson’s involvement, and that
the judge had no reason to know of Attorney Bisson’s involvement at the time
he approved of the recommended order. The trial judge noted that, had he
been alerted to Attorney Bisson’s involvement at the time he issued the order in
Lath I, he “could have recused himself . . . [and] vacated the order, pending the
Clerk having another Circuit Court judge review and act upon the [referee’s
recommended] decision.” Because the plaintiff instead appealed, and because
we affirmed the decision in Lath I, the trial judge determined that the “remedy
of referring [the referee’s recommended order] to another Circuit Court judge
has been rendered moot.” Thus, the trial judge denied the motion.

Although the precise nature of the conflict is not clear, the trial judge’s
order establishes an ongoing conflict of interest that prevents him from
presiding over cases in which Attorney Bisson represents a party. Under these
circumstances, we conclude that it was error for the trial judge to have ruled
upon the motion to vacate the judgment. See Douglas v. Douglas, 143 N.H.
419, 428 (1999) (“[A]s a general rule, a trial judge who has recused himself or
herself should take no other action in the case except the necessary ministerial
acts to have the case transferred to another judge.” (Quotation and brackets
omitted.)). Accordingly, we vacate the trial court’s order, and remand for
consideration of the plaintiff’s motion by a different judge of the circuit court.
We express no opinion as to the merits of the motion, or as to the relief, if any,
to which the plaintiff might be entitled. See McNair v. McNair, 151 N.H. 343,
354-55 (2004) (ruling that harmless error standard applied to judicial
disqualification issue where underlying result was compelled as a matter of
law).

Vacated and remanded.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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