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Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 14 of 18

3. The Property was assessed for $681,900 for tax year 2018.

Granted.

4, Taxpayer filed an abatement for tax year 2018.

Granted.

5. The City’s Board of Assessors granted an abatement and revised the Property’ tax year
assessment to $651,900.

Granted.

6. The equalization median ratio for tax year 2018 in the City was 94.8%.

Granted.

7. Based on the 2018 median ration [sic] of 94.8%, the indicated market value of the
revised assessment for the Property for tax year 2018 was $687,658 ($651,900 / .948).
Granted.

8. The tax rate for tax year 2018 was $21.21.

Neither granted nor denied.

9. The City’s expert report prepared by Vern J. Gardner, Jr. MAI, SRA, estimates a market
value of $750,000 as of April 1, 2018.

Granted.

10.‘ In determining the market value of property, the New Hampshire Supreme Court has
repeatedly found that the purchase price is the best indicator of fair market value. See Appeal of
Lakeshore Estates, 130 N.H. 504, 508 (1988); see also Berthiaume v. City of Nashua, 118 N.H.
646 (1978) and Porrvu v. City of Nashua, 118 N.H. 632 (1978).

Neither granted nor denied.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 15 of 18

11. | The Property was listed for $799,999 on June 4, 2013. See Exhibit A, MLS listing.
Granted.

12. The Taxpayer purchased the Property on January 3, 2014 for $725,000.

Granted.

13. The single-family housing market in Nashua was rising from mid-2013 through at least
2019.

Neither granted nor denied.

14. Taxpayer presented no credible evidence that its purchase price of the Property was not
indicative of fair market value. See Society Hill at Merrimack Condominium Assoc. v. Town of
Merrimack, 139 N.H. 253, 255-256 (1994).

Denied.

15. Taxpayer has not claimed economic hardship or an inability to pay and has not filed for a
tax deferment or any exemption.

Granted.

16. RSA 76:16, I(a) requires Taxpayer show “good cause” for abatement and “good cause” is
not boundless. See Barksdale v. Town of Epsom, 136 N.H. 511, 515 (1992).

Granted.

17. Taxpayer has not satisfied its burden and a further abatement is not warranted.

Denied.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 16 of 18

B. The Tax Year 2019 Requests

l. Under Porter v. Sanbornton, 150 N.H. 363 (2003), in an abatement appeal, the
assessment methodology is irrelevant. The only issue is proportionality, i.e. the relevant facts
are: 1) the assessment of taxpayer’s property; 2) the fair market value of the taxpayer’s property;
and, 3) the citywide equalization ratio of assessment to market value as determined by the
Department of Revenue Administration. Id. at 367-368.

Neither granted nor denied.

2. The subject property is a single-family residence located at 41 Berkeley Street, Nashua,
NH, Tax Map 47, Lot 56 (“Property”).

Granted.

3. The Property was assessed for $651,900 for tax year 2019.

Granted.

4. The equalization median ratio for tax your 2019 in the City was 88.8%.

Granted.

5. Based on the 2019 median ration [sic] of 88.8%, the indicated market value of the
assessment for the Property for tax year 2019 was $734,122 ($651,900 / .888).

Granted.

6. The tax rate for tax year 2019 was $21.76.

Neither granted nor denied.

7. The City’s expert report prepared by Vern J. Gardner, Jr. MAI, SRA, estimates a market
value of $800,000 as of April 1, 2019.

Granted.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 17 of 18

8. In determining the market value of property, the New Hampshire Supreme Court has
repeatedly found that the purchase price is the best indicator of fair market value. See Appeal of
Lakeshore Estates, 130 N.H. 504, 508 (1988); see also Berthiaume v. City of Nashua, 118 N.H.
646 (1978) and Porrvu v, City of Nashua, 118 N.H. 632 (1978).

Neither granted nor denied.

9. The Property was listed for $799,999 on June 4, 2013. See Exhibit A, MLS listing.
Granted.

10. | The Taxpayer purchased the Property on January 3, 2014 for $725,000.

Granted.

11. Taxpayers presented no credible evidence that its purchase price of the Property was not
indicative of fair market value. See Society Hill at Merrimack Condominium Assoc, v. Town of
Merrimack, 139 N.H. 253, 255-256 (1994).

Denied.

12. The single-family housing market in Nashua was rising from mid-2013 through at least
2019.

Neither granted nor denied.

13. Taxpayers has not claimed economic hardship or an inability to pay and has not filed for
a tax deferment or any exemption.

Granted.

14. RSA 76:16, I(a) requires Taxpayer show “good cause” for abatement and “good cause” is

not boundless. See Barksdale v. Town of Epsom, 136 N.H. 511, 515 (1992).

Granted.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 18 of 18

15. Taxpayer has not satisfied its burden and an abatement is not warranted.

Denied.

Certification

I hereby certify a copy of the foregoing Decision has this date been mailed, postage
prepaid, to: Richard J. Lehmann, Esq., Lehmann Major List PLLC, 6 Garvins Falls Road,
Concord, NH, 03301, Taxpayer Representative; Steven A. Bolton, Esq. and Celia K. Leonard,
Esq., City of Nashua, 229 Main Street, Nashua, NH 03061, Counsel for the Municipality; Laurie
A. Ortolano Trust, 41 Berkeley Street, Nashua, NH 03064, Taxpayer; and Chairman, Board of
Assessors, PO Box 2019, Nashua, NH 03061.

Date: June i1, 2021

Anne M. Stelmach, Clerk

THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS. SUPERIOR COURT
SOUTHERN DISTRICT No. 2020-CV-00133

Laurie Ortolano
v.
The City of Nashua
ORDER ON PLAINTIFF’S MOTION FOR DISCOVERY SANCTIONS

The plaintiff, Laurie Ortolano, has brought a petition in which she seeks access to
records from the City of Nashua’s (the “City” or “Nashua’) assessing department (the
“Department”). Currently pending before the Court is the plaintiff's motion for discovery
sanctions. On July 9, 2021, the Court held a hearing on the plaintiff's motion. After
consideration of the evidence, arguments, and the applicable law, the Court finds and
rules as follows.

Facts
The facts forming the basis of the plaintiff's motion are not in dispute. (See July

9, 2021 Hr'g at 10:20 (City conceding that the facts are not in dispute); but see City’s

Obj. 7 A (“The piaintiff’s motion is rife with unsupported and inflammatory allegations,
conjecture, and hyperbole unworthy of a motion before this Court."). On July 20, 2020,
the plaintiff propounded a request for production to the City for “[a]l! emails sent by Kim
Kleiner from August 9, 2019 through to September 30, 2019.” (Pl.’s Mot. Disc.
Sanctions at Ex. 2.) Nearly one month later, on August 18, 2020, the City responded
stating, “[t]he City is still searching and the City will update its responses when search is
complete.” (Id. at Ex. 3.) After receiving no further response from the City, a meet and

confer was scheduled between the parties. (Id. 41.) On October 6, 2020, the parties

Ortofano v. The City of Nashua / 2020-CV-00133
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This is a Service Document For Case: 226-2020-CV-00133
Hillsborough Superior Court Southern District
7/44/2021 12:11 PM

met to resolve the discovery dispute. (Id. ] +2.) During this meeting, the City informed
the plaintiff that it expected to produce the responsive emails within 30 days. (Id.) After
not receiving any documents for over two months, the plaintiff filed a motion to compel

on December 9, 2020. (PI.’s Mot. Disc. Sanctions J] 13; see also Court Index #68.) On

December 21, 2020, the City objected to the production of the documents, asserting
that the emails were not relevant to the plaintiff's claims. (Pl.’s Mot. Disc. Sanctions q]
14; Court Index # 73.) On January 25, 2021, the Court held a hearing on the motion to
compel. (Pl.’s Mot. Disc. Sanctions J] 15.) On March 25, 2021, the Court issued an
order requiring the City to produce “only those emails sent by Director Kleiner during the
requested time period which relate to the plaintiff, plaintiff's Right-to-Know request, or

the production of related documents.” (PI.’s Mot. Disc. Sanctions J] 17; see also Court

Index # 96 at 4.) On April 15, 2021, the City produced documents and a privilege log to
the plaintiff in accordance with the Court's order, in which for the first time, nearly nine
months after the plaintiff's original request, the City informed the plaintiff that documents
could not be produced because “the City’s tape backups are corrupt between April 2019
through October 2019.” (PI.'s Mot. Disc. Sanctions ff] 19-20.)
Analysis

The plaintiff now moves for sanctions against the City arguing that “[e]ither (1)
During the time between the [request for production] on July 20 and the filing of the
motion to compel on December 9, the City did not take any action to retrieve Kleiner's
emails and was making misleading statements when asserting that they were ‘working
on it’; or (2) The City simply took no action whatsoever until many months after the initial

discovery request, and thus acted in a dilatory and delay-inducing, vexatious manner.”

Ortolano v. The City of Nashua / 2020-CV-00133
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(Id. 1 34.) Accordingly, the plaintiff asks “[t]nat the [C]ity be ordered to pay plaintiff's
attorney's fees associated with her attempt to obtain discovery of the emails in
question.” (Id. at Prayer 5.)!

The purpose of discovery “is to narrow the issues of litigation and to prevent
unfair surprise by making evidence available for both parties to evaluate it and
adequately prepare for trial.” Bursey v. Bursey, 145 N.H. 283, 286 (2000). Accordingly,
“(t]he [CJourt may impose appropriate sanctions against a party or counsel for engaging
in discovery abuse.” N.H. Super. Ct. R. 21(d}(1); see also Daigle v. City of Portsmouth,
131 N.H. 319, 325 (1988) (“The imposition of discovery sanctions is a matter left largely
to the discretion of the trial court.”). “Sanctions are appropriate in part to deter parties
from disregarding discovery requests, and to compensate others for costs associated
with a party's failure to act in accordance with such requests.” Daigle, 131 N.H. at 326
(cleaned up). “Action or inaction by a party may provide the basis for the imposition of
sanctions.” Id. “Upon a finding that discovery abuse has occurred, the court should
normally impose sanctions unless the offending party or counsel can demonstrate
substantial justification for the conduct at issue or other circumstances that would make
the imposition of sanctions unfair.” N.H. Super. Ct. R. 21(d)(1).

Here, it is undisputed that the City first informed the plaintiff that the requested
files were unavailable due to the corruption of the tape backups nine months after her
initial request. During this time, the plaintiff relied on the City’s statements that it was
“still searching” and would produce responsive documents. Moreover, the City’s lack of

candor, or lack of action to discover the corruption of the files, led the plaintiff to file a

1 tn her motion, the plaintiff asked for addition relief, however, during the hearing, the plaintiff withdrew her
additional prayers for relief. (Hir'g at 10:18--19.)

Ortolano v. The City of Nashua / 2020-CV-00133
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motion to compel the documents at issue. The Court was required to hold a hearing to
determine the discoverability of the documents. The City’s actions, or inaction, shows
that it was disregarding the plaintiff's discovery request, or misleading the plaintiff about
the availability of responsive documents. Under these circumstances, sanctions are
appropriate to compensate the plaintiff for the costs related to discovering the
documents at issue.

Additionally, the Court finds that the City has not demonstrated substantial
justification for the conduct at issue or other circumstances that would make the
imposition of sanctions unfair. Indeed, the Court notes and admonishes the City for its
objection to the plaintiffs request for sanctions. The Court finds the City's objection to
go against the underlying facts, which the City admitted were uncontested at the
hearing. The Court also finds the tone of City’s objection concerning. (See, e.g., City's
Obj. 7 A (‘The plaintiff's motion is rife with unsupported and inflammatory allegations,
conjecture, and hyperbole unworthy of a motion before this Court.”); id. q U (‘The
plaintiffs behavior in filing this frivolous motion arguably meets the definition of obdurate
and obstinate”).) Moreover, the Court notes that at the hearing the City represented
that it was unclear when the City discovered the emails were unobtainable, (hr'g at
10:22), however, in its objection the City stated that “[elarly on in the process it was
discovered that the emails from the month of September 2019 were unobtainable due to
file corruption[,J" (City's Obj. ] T). The Court is concerned about the City’s candor and
if the City attempted in good faith to resolve the discovery dispute over the documents
at issue. See N.H. Super, Ct. R. 21(f) (requiring the parties to make “a good faith effort

to resolve informally a dispute concerning discovery.”) The stark contrast between the

Ortolano v. The City of Nashua / 2020-CV-00133
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objection and the City's position at the hearing is striking. (See hr'g at 10:23-24
(Attorney Bolton characterizing the objection at the hearing as follows: “It was a little
over the top. Maybe more than a little, in response.”)

In conclusion, the Court awards the plaintiff with reasonable attorney’s fees
associated with her attempt to obtain discovery of the emails in question. As a result,
the plaintiff's motion for discovery sanctions is GRANTED. The plaintiff shall file an
itemization of attorney's fees with appropriate redactions for attorney-client privilege and
work product purposes by August 1, 2021. Any objection to this itemization shall be
filed by August 15, 2021.

So ordered.

Date: July 14, 2021

Hon. Charles S. T.
Presiding Justice

Clerk's Notice of Decision

Document Sent to Parties
on 97/14/2021

Ortolano v. The City of Nashua / 2020-CV-00133
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