Contract

The Blackthorne Group, Inc. v. Pines of Newmarket, Inc., No. 2003-401
April 21, 2004: Affirmed

• Whether the Superior Court erred in dismissing the claims of plaintiff, a licensed New York real estate broker unlicensed in New Hampshire for anticipatory breach of contract, unjust enrichment and quantum meruit against defendant, an assisted living facility, for a 3 percent fee allegedly owed for finding a buyer for defendant’s business pursuant to an oral agreement.

The NH RE Practice Act, which regulates real estate brokerage practices, prohibits any person or business broker from instituting a lawsuit for compensation unless the person is duly licensed in NH. The oral agreement of the parties also does not comply with the act.

Insurance

Petition of Bennett
June 21, 2004: Reversed and Remanded

• Whether following alleged deletion of replacement cost coverage from a homeowner’s policy and the issuance of a notice of hearing by the insurance commissioner to determine charges of unfair settlement practices, a hearings officer erred in dismissing the notice of hearing, thereby depriving plaintiff of his constitutionally protected right to remedy.

The hearings officer unlawfully, unjustly and unreasonably dismissed the notice of hearing. RSA 417:6 requires the insurance commission to issue a notice of hearing whenever it is believed there has been an unfair method of competition or practice and need only "suspect" a violation in order to properly issue notice of hearing. It was unnecessary to address whether the dismissal of hearing deprived plaintiff of his constitutional rights to a remedy.

Criminal

State v. Martin, No. 2003-529
June 1, 2004: Affirmed

• Whether defendant’s conviction by jury of eight counts of aggravated felonious sexual assault applying retrospective application of extension to statute of limitations violate ex post facto and due process clauses of both the NH and US constitutions in light of Stogner v. California, 123 S. Ct 2446 (2003).

No statute of limitations applicable to defendant’s alleged crimes ever expired prior to the enactment of a longer statute. The holding in Stogner does not affect the Court’s prior determinations that the extension of an unexpired statute of limitations does not violate the ex post facto clause of either the state or federal constitutions.

State v. Chesborough, No. 2002-366
June 1, 2004: Affirmed

• Whether following a guilty plea and defendant’s failure to object at time of sentencing, Superior Court erred in denying defendant’s motion three years later, to strike a portion of sentencing order requiring restitution where victim’s family had already collected money from insurance.

Superior Court’s denial of defendant’s motion to strike is a sustainable exercise of discretion, especially when defendant was aware of insurance settlement prior to sentencing hearing.

State v. Barnes, No. 2003-039
April 16, 2004: Vacated and Remanded

• Whether the trial court erred by allowing the state to impeach the defendant at trial with testimony given at a plea withdrawal hearing.

• Whether the trial court erred when it denied defendant’s motion to compel certain computer records from the state.

Assuming the trial court erred in admitting the testimony, the error was harmless. The records requested by defendant, however, could have affected the credibility of the defendant’s testimony and testimony of the state’s witness.

June 10, 2004: Modifies slip opinion to state that new trial will be ordered only if the records exist, unless state proves that defendant’s inability to use the records in the first trial was harmless beyond a reasonable doubt.

State v. Zwicker, No. 2003-082
June 29, 2004: Affirmed

• Whether the trial court erred in denying defendant’s motion to suppress evidence seized pursuant to a search warrant.
• Whether defendant’s Miranda rights were violated because police failed to honor his invocation of right to remain silent.
• Whether the state violated defendant’s double jeopardy rights in declaring a mistrial without prejudice.
• Whether the trial court erred in its answer to jury’s questions regarding possession of non-saleable remnants of cannabis.
• Whether the trial court erred in ordering defendant to provide State with a summary of two witnesses’ testimony.
• Whether trial court should have directed verdict of not guilty.
• Whether defendant’s speedy trial rights were violated.

There was probable cause to issue the search warrant where information was recounted from five cooperating individuals. The manifest weight of the evidence supported a waiver of constitutional rights by defendant and, therefore, the court did not need to address whether police honored those rights. Absent an unsustainable excess of discretion, a trial court’s decision concerning the mis trial order will not be overturned.

State v. Smalley, No. 2003-198
June 29, 2004: Affirmed

• Following defendant’s conviction of second-degree murder, whether trial court erred in admitting evidence of his drug dealing activities pursuant to NH Rule of Evidence 404 regarding prior bad acts.

Because the probative value of the challenged evidence was not substantially outweighed by the danger of unfair prejudice to defendant, trial court’s ruling was not untenable to prejudice of defendant’s case.

State v. Leonard, No. 2003-406
June 29, 2004: Reversed and Remanded

• Whether trial court should have dismissed indictments against defendant because it found him incompetent to stand trial but did not order him to undergo psychiatric treatment pursuant to RSA 135:17 a (Supp. 2003).

A course of treatment for the restoration of competency must be under the supervision of a psychiatrist. Failure to so order is reversible error.

State v. Ellsworth, No. 2003-354
June 25, 2004: Reversed and Remanded

• Defendant was convicted of aggravated felonious sexual assault and three counts of felonious sexual assault. Whether trial court erred when it denied his motion for a mistrial after prosecutor made unfairly prejudicial statements during closing arguments and excluded statement in which he denied assaulting his victim.

The prejudice created by the prosecutor’s comments in closing arguments was not cured by his later explanation or the trial court’s subsequent instruction.

State v. Dowman, No. 2003-422
June 25, 2004: Affirmed

• Defendant was convicted on seven counts of child pornography. Whether trial court erred in denying defendant’s motion to suppress on grounds that the affidavit supporting an application for search warrant lacked detail and specificity to support probable cause under State and Federal Constitutions.

Because affidavit accompanying warrant contained admission of child pornography by defendant, probable cause was met even without specificity and detail.

Family Law

In the matter of Arabian and Squillante (Arabian)
June 11, 2004: Reversed in part, Vacated in part and Remanded

• Whether the trial court erred in requiring petitioner to pay 75 percent of his child’s extracurricular activity expenses in addition to weekly child support.

• Whether the trial court erred in requiring petitioner to contribute to respondent’s expenses for kindergarten, after-school care, and summer camp in addition to support.

The Court erred when it required petitioner to pay extracurricular expenses in addition to child support because they are included in the parties’ total support obligation. When recalculating child support, however, such expenses may constitute "special circumstances" justifying a deviation from child support guidelines.

In re Hennessey-Martin (Whitney) and Whitney, No 2003-531
June 30, 2004: Affirmed

• Whether adoption subsidy provided by another state and received by obligee should be credited toward obligor’s child support obligation.

Adoption subsidies qualify as gross income to the party who receives it as a financial incentive for adoption of "special needs" children and not as a special circumstance justifying a downward deviation from support guidelines.

Judicial Conduct

Petition of Judicial Conduct Committee, No. 2003-798
June 14, 2004: Agree

• Whether RSA 494-A is unconstitutional in declaring the Judicial Conduct Commission the sole authority to regulate the conduct to the judiciary.

One branch of government cannot usurp the essential power of another. To the extent that RSA 494-A purports to authorize the commission to improve disciplinary action on judges, it is unconstitutional.

Water Resources

New Hampshire Water Resources Council v. Steel Pond Hydro, Inc., No. 2003-669
June 30, 2004: Affirmed in Part, Reversed in part and Remanded

• Whether the WRC is entitled to a percentage of a lump sum payment from PSNH to defendants pursuant to its lease to obtain rent equal to a percentage of revenue from power sales.

Remand to determine what portion of lump sum payments attributable to future price reductions currently is due to WRC pursuant to rental payment structure.

Landlord/Tenant

190 Elm Street Realty v. Beaudoin, No 2003-451
June 30, 2004: Reversed and Remanded

• Whether trial court erred when it ruled that original lease agreement was invalid after initial five-year term without new writing to satisfy statute of frauds.

Statute of frauds does not apply to an extension of lease; this is merely a continuation of previously existing lease.

Board of Tax and Land Appeals

Appeal of the City of Portsmouth, No. 2003-547
June 25, 2004: Affirmed in part; Reversed in part and Remanded

• Whether airport district revenue is a "payment in lieu of taxes" (PILOT) to be included in the City’s total equalized valuation, pursuant to RSA 21-J:3 XIII.

That portion of the airport district revenue that represents payment for "all other police services" is a PILOT; remainder of revenue paid to Portsmouth by the Pease Development Authority airport district pursuant to the agreement for other municipal services is not.

Petition of Below, No. 2004-361
June 22, 2004: The court expressed no opinion and left any resolution of these issues for a trial court in the first instance.

• Whether the legislature had the constitutional authority to enact HB 1292 and HB 264, which fulfilled its constitutional obligation to reapportion the house and senate based on the 2000 census.

Legislative districts are created every 10 years based on federal census and such apportionment is not limited to the legislative session immediately following the census, thus ensuring equal representation based on the population.

Linda J. Argenti is a sole practitioner based in Nashua. President of Linda J. Argenti, P.C. for or the past 12 years, she practices primarily family law, bankruptcy, personal injury and civil litigation. She graduated from Suffolk University School of Law in 1983.

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