2005-195, DALTON HYDRO LLC v. TOWN OF DALTON

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Coos
No. 2005-195
DALTON HYDRO LLC
v.
TOWN OF DALTON
Argued: October 19, 2005
Opinion Issued: December 29, 2005
Brown, Olson & Gould, P.C., of Concord (Bryan K. Gould on the brief),
and Steven A. Wuthrich, of Montpelier, Idaho, on the brief and orally, for
Dalton Hydro LLC.
Mitchell & Bates, P.A., of Laconia (Judith E. Whitelaw on the brief and
orally), for the Town of Dalton.
DALIANIS, J. The appellant, Dalton Hydro LLC (Dalton Hydro), appeals
an order of the Superior Court (Vaughan, J.) granting summary judgment to
the appellee, Town of Dalton (town). We reverse and remand.
The record supports the following facts. Dalton Hydro owns property on
the New Hampshire-Vermont border consisting of a paper mill, a dam across
the Connecticut River, and a hydroelectric power plant. A portion of the
property is located in Dalton (the Dalton property).

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Dalton Hydro’s immediate predecessor in title was American Paper Mills
of Vermont (American Paper), which became the subject of an involuntary
Chapter 7 petition for bankruptcy filed on or about July 3, 2002, in the United
States Bankruptcy Court for the District of Vermont. The bankruptcy court
converted the filing to a Chapter 11 proceeding on September 16, 2002, and
appointed attorney Douglas J. Wolinsky (the trustee) as Chapter 11 trustee.
On February 7, 2003, the Steve Rogan Company (SRC), a Utah
corporation that manages Dalton Hydro, made a bid of $3,205,000 to purchase
the Dalton property. The bankruptcy court issued an order authorizing the
sale to SRC, which assumed operating responsibility on or about February 14,
2003, in advance of closing. On or about February 20, 2003, two
representatives from SRC met with the town’s clerk and its tax collector to
discuss the impending purchase, as well as related tax issues. At this meeting,
SRC’s representatives provided the clerk and the tax collector with its Utah
address and phone number.
On March 11, 2003, the town mailed taxpayer inventory blanks to all of
the town’s property owners, as was required by New Hampshire law. See RSA
74:4-:5 (2003). One such inventory blank was sent to “American Pulp and
Paper Company/Simpson Paper Company,” the Dalton property’s corporate
owner of record as of that date. Neither the trustee, nor SRC, nor Dalton
Hydro received inventory forms.
On March 20, 2003, SRC assigned its rights to purchase the Dalton
property under the bankruptcy court’s order to Dalton Hydro. Dalton Hydro
purchased the Dalton property from the trustee on March 21, 2003. That
same day, the trustee, in addition to paying past due property taxes to the
town on behalf of the bankruptcy estate, sent a letter to the town notifying it of
the sale.
Approximately eight months later, in November 2003, Dalton Hydro
received a tax bill from the town appraising the Dalton property at $3,833,330
for taxation purposes. Based upon this appraisal, the town assessed a total
tax in the amount of $97,520. Dalton Hydro filed a timely application for an
abatement with the town’s board of selectmen, claiming that the assessed taxes
were illegal, excessive, disproportionate, and unjust. The board denied the
application.
Dalton Hydro then petitioned the trial court for an abatement and
refund, asserting that the purchase price of $3,205,000 represented the fair
market value of the Dalton property as of March 20, 2003, and that the town’s
appraisal was illegal, excessive, disproportionate, and unjust. The town
responded that Dalton Hydro’s right to contest the proportionality of its tax

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burden for 2003 had been forfeited because neither it nor its predecessor-in-
interest had filed the required inventory form with the town.
In December 2004, the town moved for summary judgment, asserting
that it fulfilled its duty to mail an inventory form to “all owners of property in
Dalton” by mailing a form to Dalton Hydro’s predecessor-in-interest, and that
failure to return a completed inventory form to the town terminated Dalton
Hydro’s right to appeal the board’s denial of its request for abatement. The
trial court, finding that the town had met its statutory obligations as to Dalton
Hydro, granted the town’s motion.
On appeal, Dalton Hydro raises four issues: (1) the trial court erred in
granting the town’s motion for summary judgment because material issues of
fact existed; (2) the town had actual notice that Dalton Hydro would become
the owner of the property prior to the statutory cutoff date for the mailing of
inventory forms, and, thus, could not rely upon its mailing of an inventory form
to American Paper to defeat Dalton Hydro’s right to seek an abatement; (3) the
town failed to meet its statutory obligations as to Dalton Hydro because it
relied solely upon county land records to establish property ownership, despite
having actual knowledge that those records were incorrect; and (4) the
interpretation and application of the relevant statute by the trial court violated
the Due Process Clauses of the United States and New Hampshire
Constitutions.
When reviewing a trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Soraghan v. Mt. Cranmore
Ski Resort, 152 N.H. 399, 401 (2000). If our review of the evidence does not
reveal any genuine issue of material fact, and if the moving party is entitled to
judgment as a matter of law, we will affirm the trial court’s decision. Id. We
review the trial court’s application of the law to the facts de novo. Marikar v.
Peerless Ins. Co., 151 N.H. 395, 397 (2004).
Pursuant to 11 U.S.C. § 541, the commencement of a bankruptcy case
such as the one underlying the dispute now before us creates an estate
comprised of “all legal or equitable interests of the debtor in property as of the
commencement of the case.” 11 U.S.C. § 541(a)(1) (2005); see also In Re NTA,
LLC, 380 F.3d 523, 527-28 (1st Cir. 2004). Courts have interpreted § 541 to
provide that “all legal or equitable interests of the debtor in property as of the
commencement of the case” become “property” of the bankruptcy estate. See
In re Pasteurized Eggs Corp., 296 B.R. 283, 288-89 (Bankr. D.N.H. 2003); see
also Begier v. I.R.S., 496 U.S. 53, 59 (1990); United States v. Shadduck, 112
F.3d 523, 528 (1st Cir. 1997) (“Virtually all property of the debtor . . . becomes
‘property of the estate’ by operation of law . . . .”). Thus, all property in which
the debtor holds a legal or equitable interest becomes the property of the

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bankruptcy estate on the date the bankruptcy petition is filed. See In re
Skorich, 332 B.R. 77, 88 (Bankr. D.N.H. 2005); see also Sunshine
Development, Inc. v. F.D.I.C., 33 F.3d 106, 112-13 (1st Cir. 1994). Property of
the bankruptcy estate is defined broadly to include any property to which the
estate has some right. In re A & J Auto Sales, Inc., 223 B.R. 839, 842 (Bankr.
D.N.H. 1998); see also In re Shore Air Conditioning & Refrigeration, Inc., 18
B.R. 643, 646 (Bankr. D.N.J. 1982); In re Koch, 14 B.R. 64, 65 (Bankr. D. Kan.
1981).
RSA 74:5 requires a town’s “selectmen or assessors” to mail taxpayer
inventory blanks to “the last known address of all persons or corporations
known or believed to own taxable property in their towns” on or before March
25 of each year. See RSA 74:5. When interpreting statutes, we ascribe to
statutory words and phrases their usual and common meaning, unless the
statute suggests otherwise. State v. Hofland, 151 N.H. 322, 324 (2004). When
the language of a statute is clear on its face, its meaning is not subject to
modification. Id. We will neither consider what the legislature might have said
nor add words that it did not see fit to include. Id.
On February 12, 2003, the town filed a proof of claim with the
bankruptcy estate seeking $226,266.47 in taxes owed on the property, for
which the trustee later remitted payment in full. The town, therefore, was
cognizant of the bankruptcy estate before it mailed the inventory forms on
March 11, 2003, and it did not dispute the inclusion of the taxable land within
that estate. We conclude, therefore, that, pursuant to RSA 74:5, the town was
required to mail a taxpayer inventory blank to the trustee, as representative of
the bankruptcy estate, which owned the property by operation of law as of July
3, 2002. See 11 U.S.C. § 541.
In light of our conclusion, we hold that the trial court’s grant of summary
judgment to the town was error. We, therefore, need not address Dalton
Hydro’s remaining three arguments.
Reversed and remanded.
BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,
concurred.