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Bar News - December 17, 2004 Supreme Court at a Glance ~ October 2004 About the Editor 
Consumer Protection State of NH v. James Moran d/b/a Exterior Solutions The defendant entered into a contract to install siding on the home of a residential consumer. The defendant required the consumer to pay for the material before work commenced. The consumer paid the defendant as requested but the defendant never delivered the material and never performed any work. Over the course of a month, the defendant made various assurances to the consumer that the work would be done or that her money would be refunded, neither of which happened. Issue: Whether the defendant's conduct was merely a breach of contract insufficient to rise to the level of a violation of the Consumer Protection Act. Holding: No, the Court found that the defendant, at the time of contract formation, had no intention to purchase the material or perform the work and that the defendant's ongoing misrepresentations after contract formation constituted unfair and deceptive trade practices which met the "rascality" test set forth in Barrows v. Boles, 141 N.H. 382 (1996). Probate-Pretermitted Heirs In Re Estate of Josiah J.Treloar, Sr. In 1986, the testator executed a will that left his estate to his wife and three children. In 1998, one of the testator's children died, survived by her spouse and her two sons, the respondents. Shortly thereafter, the testator executed a new will that named neither the testator's deceased child nor the respondents. However, the deceased's husband, the testator's son-in-law, was named Executor. Issue: Whether the respondents are pretermitted heirs under RSA 551:10. Holding: Yes, the indirect reference to the testator's son-in-law was insufficient to overcome the presumption of pretermission in RSA 551:10. The Court distinguished this case from In re Estate of Osgood, 122 N.H. 961 (1982) and declined to interpret the new will along with the original will. The Court held that the 1998 will stands on its own and therefore, it was unnecessary to review any other document. Real Estate-Quiet Title Cooperative School Districts Petition of Charles R. Beauregard, Jr., et al In 1962, the Swanzey School District, which then owned three schools, including the Wilcox School, dissolved and joined other school districts and became part of the Monadnock Regional School District. At that time, the Wilcox School property was not conveyed to Monadnock, as the other two schools were. For years, record title remained in the name of the nonexistent Swanzey School District, until the petitioner, a Town Selectman, petitioned the Superior Court to allow the Town to dispose of the property. The Monadnock Regional School District appealed the Superior Court's order appointing an agent to convey the Wilcox School property to the Town of Swanzey pursuant to RSA 195:16-c. Issue: (1) Whether RSA 195:6, I and RSA 195:16-c are remedial statutes that apply retroactively. (2) Whether RSA 195:16-c and RSA 195:6 can be interpreted independently. Holding: (1) RSA 195:6, I and RSA 195:16-c are remedial in nature and, absent legislative intent to the contrary, apply retroactively. (2) No, both statutes are component parts of a broader statutory scheme and must be read together. Accordingly, the Court remanded the case and ordered the appointment of an agent to convey the property to Monadnock. Torts-Government Immunity Debbie Richard, et al v. Pembroke School District The plaintiff sustained injuries when she tripped on a curb while picking up her son at school. The plaintiff contended that her injuries were caused, not by Pembroke's failure to maintain the adjacent sidewalk, but rather by the overgrown grass that hid the curb. The plaintiffs appealed the Superior Court's order granting summary judgment to Pembroke on the basis of governmental immunity pursuant to RSA 507-B:2 and RSA 231. Issue: (1) Whether the plaintiff's injuries were caused by Pembroke's negligent maintenance of the grass island or surrounding curb, and not the sidewalk. (2) Assuming that the plaintiff's injuries were caused by Pembroke's negligent maintenance of the sidewalk, the plaintiff had provided the notice required by RSA 231:92 Holding: (1) Pembroke's failure to ensure that the grass along the edge of the island did not obscure the curb, is an issue of sidewalk maintenance; that portion of the curb was essentially inseparable from the sidewalk. (2) Pembroke did not have the requisite actual notice or knowledge of an insufficiency in order to be liable for the plaintiff's injuries.
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