Bar News - November 21, 2003
Supreme Court at a Glance ~ October 2003
Edited by John-Mark Turner
Criminal
- State v. Eastman (Appeal of David H. Bownes), No. 2002-695 (indigent defendant's counsel fees)
Oct. 8, 2003
Affirmed.
- Whether trial court properly denied attorneys' fees request under prior version of Supreme Court Rule 47 because defense counsel did not petition to exceed maximum guidelines before incurring attorney fees in excess of the guidelines.
- What criteria should trial courts use to determine fair compensation of defense counsel once they find good cause and exceptional circumstances exist to support a request for additional fees under the current version of Rule 47?
- State v. Rix, No. 2003-006 (habitual offender/sentencing)
Oct. 10, 2003
Vacated Sentence and Remanded.
- Whether habitual offender convicted of driving motor vehicle in violation of his habitual offender status can be sentenced to up to ten years pursuant to recidivist sentence enhancement of RSA 651:6, II(a), even though habitual offender statute, RSA 262:23, I, prescribes five-year maximum.
- State v. D'Amour, No. 2002-603 (search and seizure)
Oct. 10, 2003
Reversed and Remanded
Nadeau, J., with whom Brock, C.J., joined, concurred in part and dissented in part
- Whether police officer engaged in criminal investigation may simultaneously engage in community caretaking function, so that evidence found during community caretaking is admissible.
- Whether trial court's determination that police officer was not engaged in investigative function was clearly erroneous in light of evidence that he was directed by shift commander "to go back to the scene to investigate the initial complaint and look for any damage or left-over property."
- Whether trial court committed clear error when it determined that inventory search of backpack took place after arrest of defendant.
- State v. Melvin, No. 2001-605 (sexual assault/sentencing)
Oct. 14, 2003
Affirmed.
- Whether two separate convictions (entered in the same proceeding) for sexual assaults occurring two months apart should be considered a single prior conviction for purposes of the life sentence enhancement of RSA 632-A:10-a, III.
- Whether an individual may be sentenced to life without the possibility of parole pursuant to the enhancement provision of RSA 632-A:10-a, III, notwithstanding the fact that prior convictions were not alleged in the indictment.
- State v. Donohue, No. 2002-641 (conspiracy)
Oct. 24, 2003
Reversed.
- Whether it is legally possible for an individual to conspire to commit reckless second-degree assault.
Civil
- Estate of Lunt v. Gaylor, No. 2002-782 (service of process / waiver of jurisdictional defects)
Oct. 1, 2003
Reversed and Remanded.
- Whether dismissal of an equity petition is required for defective service on an out-of-state defendant who contests the validity of service by specially appearing, filing a motion to vacate a default judgment, and filing a motion to dismiss.
- Whether a defendant voluntarily submitted to the jurisdiction of the trial court by filing a motion to vacate a default judgment, the substance of which contended the defendant had not been properly served.
- Godbout v. Lloyd's Insurance Syndicate, No. 2003-077 (insurance coverage)
Oct. 2, 2003
Reversed.
- Whether an insurance agent's representations regarding coverage estopped the insurer from relying on a clear exclusion to deny coverage.
- Whether a confirmation of insurance form given to the insured, which disclosed cursorily the existence of coverage limitations and exclusions, rendered the insurer's denial of coverage proper even though the insured never received a copy of the policy containing the applicable exclusion.
- Whether exclusionary language reading "loss or damage occurring when the pilot flying the helicopter is flying outside the parameters of . . . the certificate issued to the pilot" is ambiguous.
- Babb v. Clark, No. 2002-502 (personal injury/sufficiency of evidence)
Oct. 2, 2003
Affirmed.
- Whether sufficient evidence supported jury verdict in favor of defendant in automobile accident case.
- Whether the rule in crashworthiness cases, that defendants bear the burden of apportionment once plaintiff proves causation, applies in ordinary negligence cases.
- Grenier v. Barclay Square Commercial Condo. Owners' Ass'n, No. 2002-457 (condominium owners association rules / attorneys' fees under RSA 356-B:15)
Oct. 10, 2003
Affirmed in Part, Reversed in Part, Vacated in Part, and Remanded.
Dalianis and Duggan, JJ., concurred in part and dissented in part.
- Whether rule adopted by board of directors of condominium owners' association to tow cars that violated parking rules was valid in light of language of parking rules and condominium by-laws limiting penalty to loss of parking privileges or a $10 fine.
- Whether condominium owners' association was entitled to attorneys' fees under RSA 356-B:15 notwithstanding the fact that it did not prevail at either the trial or appellate levels.
- Whether trial court abused its discretion when it denied plaintiff's claim that he was entitled to attorney's fees because defendant condominium owners' association's position was patently unreasonable.
- Whether a party that prevails against a condominium owners' association is entitled, by virtue of equitable considerations, to attorneys fees under RSA 356-B:15.
- Whether rule that parties must mitigate damages required plaintiff, whose vehicles were towed in violation of condominium owners association rules, to pay excess storage costs occasioned by failure to pay towing fees.
- Chisolm v. Ultima Nashua Indus. Corp., No. 2002-456 (contracts/wage claim/jury verdicts)
Oct. 14, 2003
Affirmed.
- Whether sufficient evidence existed to support a jury verdict that the parties had entered into an enforceable contract containing a severance package.
- Whether sufficient evidence existed to support a jury finding that defendant willfully failed to pay plaintiff's wages.
- Whether a plaintiff waived his right to modify or challenge a jury verdict by agreeing in chambers that jury intended to award amount stated on general verdict forms.
- Whether trial court's ex parte contact with jury after it rendered a verdict required that the verdict be set aside in light of court's prompt corrective measures (including going back on the record and sum moning counsel back to the courtroom) after learning that jury's understanding of verdict was at odds with court's and counsels' understanding.
- Mahoney v. Town of Canterbury, No. 2002-638 (highways by prescription/wrongfully issued injunctions/attorneys' fees)
Oct. 14, 2003
Affirmed in Part, Vacated in Part, and Remanded.
- Whether the road at issue became a public highway under RSA 229:1 by prescription.
- Whether RSA 229:1 requires an adverse use by the public for the twenty years preceding January 1, 1968, or any twenty year period prior to that date.
- Whether the trial court properly calculated the expenses suffered by defendant due to a wrongfully issued injunction.
- Whether the trial court correctly denied defendant's attorneys' fees request, which was based on defendant's assertion that plaintiff's position was patently unreasonable.
- T & M Assocs. v. Goodrich, No. 2002-520 (contract damages)
Oct. 20, 2003
Affirmed.
- Whether the trial court properly relied on the defense damages expert's calculation of damages, which included an S corporation's profits that plaintiff had access to but, in breach of contract, did not reinvest on defendants' behalf.
- Whether trial court properly relied on S&P 500 Index to measure the rate of return the defendants' share of profits from S corporation would have received had plaintiff reinvested the profits as required by contract.
- McLaughlin v. Fisher Eng'g¸ No. 2002-770 (products liability/evidence)
Oct. 27, 2003
Affirmed.
- Whether, in products liability action, trial court properly excluded evidence of fourteen other lawsuits against snowplow manufacturer.
- Whether photograph of decedent showing head injuries caused by snowplow mount was properly excluded because its likely prejudicial effect outweighed its probative value.
- Whether trial court properly allowed defendant to introduce evidence of one decedent's substance abuse and another's incarceration in order to rebut plaintiffs' claims of hedonic damages and loss of income.
- Whether the defendant adequately disclosed the subject of its accident reconstruction expert's expected testimony.
- Whether the trial court abused its discretion in finding that defendant's accident reconstruction expert was qualified to testify about "bio-mechanical" issues, i.e., that plaintiffs' decedents would have died even if snowplow mount had been removed from truck that struck decedents' car.
- Whether trial court abused its discretion when it denied plaintiffs' motion to set aside a defense jury verdict, where defense counsel made several statements at trial regarding the actions of the non-party driver of the car in which decedents rode even though the defendant had failed to timely raise the issues of comparative fault and intervening cause.
- Schaeffer v. Eastman Community Ass'n, No. 2002-689 (nonprofit corporations/ property owners' association)
Oct. 27, 2003
Reversed.
- Whether board of directors of nonprofit corporation, which was a property owners' association, acted ultra vires when it closed a ski area on the common property of community.
- Steir v. Girl Scouts, No. 2003-171 (certified questions/limitations of actions)
Oct. 29, 2003
Question answered and remanded.
- Whether RSA 508:8, which allows infants and mentally incompetent individuals to bring a personal action within two years after removal of disability, tolls the 180-day limitation period applicable to claims under the New Hampshire Law Against Discrimination, RSA 354-A.
Administrative
- Appeal of City of Laconia, No. 2002-675 (PELRB appeal / appropriate collective bargaining unit / laches)
Oct. 1, 2003
Affirmed.
- Whether PELRB properly dismissed on laches grounds city's petition to modify a collective bargaining unit to exclude fire captains and lieutenants.
- O'Meara's Case, No. LD-2002-004 (attorney conduct case)
Oct. 15, 2003
Agreed with referee's recommendation to publicly censure.
- Whether the Court should adopt the referee's recommendation to publicly censure an attorney for (1) misrepresenting in pleadings the date on which he served a subpoena, in violation of Rules 3.3(a)(1), 8.4(a), and 8.4(c), and (2) grossly exaggerating factual allegations in a motion to modify custody of the attorney's children, in violation of Rules 3.1, 3.3(a)(1), 3.3(a)(3), 8.4(a), and 8.4(c).
- Petition of Moore Center Services (Area Agency VII), No. 2002-245 (HHS Appeal / eligibility for disability services under RSA 171-A)
Oct. 24, 2003
Affirmed.
- Whether the Department of Health and Human Services Administrative Appeals Unit arbitrarily, unreasonably, or in a manner contrary to law, determined that an individual with a learning disability and other psychiatric issues, including substance abuse, had a "developmental disability," as that term is defined by RSA 171-A:2, V.
- Whether an individual who has been found to have a developmental disability should be only conditionally eligible for services under RSA 171-A when diagnostic information pertaining to his disability is inconclusive.
- Bayson Props., Inc. v. City of Lebanon, No. 2002-538 (municipal zoning/planning)
Oct. 24, 2003
Affirmed.
- Whether the superior court erred when it applied the standard of review applicable to zoning board appeals, RSA 677:6, to a planning board appeal.
- Whether the plaintiffs waived the issue of planning board bias by not registering an objection until after eleven hours of hearings spanning a three month period.
- Whether RSA 673:14, II, prohibited plaintiffs from raising the issue of planning board bias, thus excusing their failure to do so in a timely fashion.
- Whether a local planning board's decision that plaintiffs' site plan application did not satisfy the site plan regulations regarding landscaping and traffic was unreasonable or erroneous as a matter of law.
- Whether planning board's decision that site plan application did not satisfy site plan regulations, effectively rezoned plaintiffs' property, barring all commercial use.
- Whether planning board's decision unreasonably elevated the rights of abutters.
- Whether planning board's decision violated the equal protection clauses of the state and federal constitutions by subjecting plaintiffs to a higher level of scrutiny than other site plan applicants.
- Appeal of Lakeview Neurorehabilitation Center, Inc., No. 2003-016 (unemployment benefits)
Oct. 29, 2003
Affirmed.
- Whether the Department of Employment Security appeal tribunal correctly concluded that discharged employee had not been terminated for misconduct where employee's actions leading to termination were caused by employee's uncontrollable diabetic condition.
- Whether appeal tribunal's conclusion that diabetic condition was uncontrollable was clearly erroneous because (1) it was not supported by expert medical testimony, or (2) it was against the weight of evidence.
- Whether employees in a health care profession should be held to a more demanding standard in assessing misconduct under RSA 282-A:32, I(b), than other occupations.
Domestic
- In the Matter of Holmes, No. 2002-664 (representation by lay individual)
Oct. 2, 2003
Affirmed.
- Whether trial court's decision to bar individual, who previously had been found to have practiced law without a license, from sitting at counsel table during divorce proceeding was an unsustainable exercise of discretion.
- In re Juvenile 2003-189, No. 2003-189 (Juvenile/CHINS petition)
Oct. 14, 2003
Reversed and Remanded.
- Whether a school is a custodian for the purpose of a children in need of services ("CHINS") petition brought under RSA 169-D:2, IV (b).
John-Mark Turner practices commercial litigation with Sheehan Phinney Bass + Green, Manchester.
Get Some Free Press - Edit the "Supreme Court at a Glance"
THIS INDEX OF recent Supreme Court cases is a collaborative endeavor, and we invite members of the Bar, either as firms or individually, to volunteer to take responsibility for "Supreme Court at a Glance" for a particular month. We are also looking for attorneys to write about the impact of significant decisions recently handed down by the NH Supreme Court. Help your colleagues keep up with the latest developments in case law and get your face and your firm's name in Bar News!
Contact managing editor Lisa Segal at 224-6942 or at lsegal@nhbar.org if you're interested in compiling an upcoming Supreme Court index or analyzing a recent court decision.
|
