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Bar News - April 22, 2005 Supreme Court At-a-Glance: March 2005 Heather E. Krans is a member of Wiggin & Nourie, P.A. in Manchester, where she practices in the areas of domestic relations and appellate law. She graduated from Emory University School of Law in 1997. CRIMINAL State v. Gubitosi The trial court's finding prosecutorial misconduct and bad faith was error. The State was not bound to go to the original court to obtain a search warrant after charges had been filed. Further, the State did not act in bad faith by failing to inform the district court that the telephone records had been suppressed where this fact had no bearing on the issue of probable cause to obtain the records. The trial's courts suppression of the records was an unsustainable act of discretion where there was no prosecutorial misconduct or bad faith on the part of the State. State v. Beauchesne State constitutional issue is preserved for appellate review where raised in written motion and at suppression hearing. Issue as to when seizure occurred is a "subsidiary question" of question raised in defendant's notice of appeal. The trial court erred in denying defendant's motion to suppress. Under Part I, Art, 19 of the New Hampshire Constitution, a seizure occurs when a reasonable person believes he/she is not free to leave. [Court explicitly declines to adopt rule of California v. Hodari D. (499 U.S. 621 (1991)); i.e. that defendant is not seized until he/she submits to show of authority]. Under state constitution, defendant was seized when officer first indentified himself as a police officer and ordered defendant to stop. Where the police officer did not have reasonable suspicion at time of defendant's seizure, the fruits of the seizure are excluded. Defendant's conduct in resisting detention does not justify the admission of the marijuana and cocaine. Crosby v. Warden, New Hampshire State Prison Where there is no indication in the record or sentencing order as to whether defendant's sentences for two different crimes occurring on different dates were to be served concurrently or consecutively, the sentences will run concurrently. Therefore, a subsequent plea agreement stating that the prior sentences were to run consecutively was unlawful. In light of holding, petitioner's appeal from the trial court's dismissal without prejudice of ineffective assistance claim is moot. FAMILY LAW In the Matter of Giacomini and Giacomini The plain language of RSA 458:17(VII) (child support payments are judgments when due and payable) and RSA 336:1 (statutory interest on judgments), when read together, provide that "child support payments that are due and payable are judgments, and as such, accrue interest." In the Matter of Goldman and Elliott Respondent's motion seeking contribution to her son's college expenses, which was filed prior to the effective date of the change in the law, but not heard until after the effective date of the amended law, did not "secure her a vested right under the prior law." Therefore, the new law applies and the court is without subject matter jurisdiction to order petitioner to contribute to his son's college expenses. INSURANCE Harrington v. Concord General Mut. Ins. Co. Insured was not entitled to uninsured motorist benefits under his personal auto policy because he did not obtain his insurer's consent before settling with another party as clearly and unambiguously required by the policy. Wilson v. Progressive Northern Ins. Co. Trial court's finding that delay in reporting constituted prejudice to insurer was error, where there was no connection on the record between the police's failure to locate the taxicab involved in accident and the delay in reporting. The phrase "hit-and-run" in plaintiff's policy is ambiguous in that it could include a driver that flees the scene of an accident and a driver who fails to provide identifying information. Thus, this provision of the policy is construed to provide coverage. Plaintiff's injuries arose out of use of the taxicab where driver shut door on tail of plaintiff's dog, causing dog to bite plaintiff. PERSONAL INJURY/ LOST WAGES Rosa v. Partners in Progress, Inc. & a.; A personal injury plaintiff who is an illegal alien is entitled to maintain a claim of lost wages/earning capacity where, at the time of the injury, he was not legally entitled to work in the U.S. Generally, an illegal alien may not recover U.S. earnings, because these earnings can only be realized where the illegal alien engages in unlawful employment. Notwithstanding this general rule, a person responsible for an illegal alien's employment is liable for lost U.S. earnings where that person had actual or constructive knowledge of the illegal alien's status. Defendants may introduce evidence of plaintiff's illegal alien status on the issue of lost earnings. REAL PROPERTY / CONTRACTS Hughes & a. v. New Hampshire Division of Aeronautics & a. Where plaintiffs have no ownership interest in the property at issue, they do not have standing to mount a facial constitutional challenge to RSA 422:46. RSA 422:46 was not unconstitutional as applied because "it did not deprive the plaintiffs of any right rising to the level of property." In the first transaction that is the subject of plaintiffs' claims, State is entitled sovereign immunity in tortious interference with contractual relations claim, because State officials had a reasonable belief that their conduct was lawful, and acted within the scope of their official duties. There are, however, genuine issues of material fact as to whether the State tortiously interfered with the second transaction that is the subject of plaintiff's claims. Neither a State agency nor a state official acting in his/her official capacity may be sued for damages under 42 U.S.C. § 1983. State officials are entitled to qualified immunity in their individual capacity where plaintiffs did not establish that they were unconstitutionally deprived of their contractual rights. REAL PROPERTY Sandford, Jr. v. Town of Wolfeboro The trial court did not err in determining the scope of the easement, where a reasonable person could have found that the town established its easement to flow plaintiff's land to the top of the dam, "in keeping with the historical and customary use of the dam, within the obvious parameters of weather variations." TRUSTS AND ESTATES King v. Onthank Trial court did not err in establishing the valuation date to be the date that the assets were distributed, where such determination was consistent with clear expression of settlor's intent to distribute the property equally. Trial court did not err in refusing to reduce "equalization amount" as the record supported the trial court's finding that amounts that Respondent sought credit for were speculative and lacking in factual basis. WORKERS' COMPENSATION Appeal of Hypertherm, Inc. (New Hampshire Compensation Appeals Board) Petitioner's former employer is liable for payment of her medical bills for treatment she received for a condition causally related to her former employment, regardless of whether the treatment was the result of trauma or "cumulative trauma." ZONING 47 Residents of Deering, N.H. v. Town of Deering & a.; ZBA had authority to decide residents' appeals of town selectmen's decisions under RSA 676. ZBA also had authority to waive the filing deadline relative to residents' appeals. ZBA, however, erred in its interpretation of the Deering Zoning Ordinance; i.e. in determining that it was necessary to revaluate whether the junkyard operator had a "lawfully existing" use every time they reissued his license. |
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