BROCK, C.J. The defendant, James Gibson, appeals a finding of the Superior Court (Fitzgerald, J.) that he had violated conditions of his probation by lying to his probation officer and not satisfactorily participating in sex offender counseling.

Viewing the evidence in the light most favorable to the state, we conclude that the evidence supports the trial court's finding that the defendant violated condition 1 of his probation. We conclude, however, that there was insufficient evidence to support the trial court's finding that the defendant had violated condition 12C of his probation. Condition 12C provides: "I will participate in and satisfactorily complete the following program: Sex Offender Counseling." Neither the 1994 sentence nor the terms and conditions of adult probation stated that a violation of the defendant's contract with his treatment providers would be considered a violation of his probation conditions.

Because the finding that the defendant violated condition 12C of his probation may have affected the trial court's decision on sentencing, we vacate and remand for further proceedings consistent with this opinion before a superior court justice other than the justice who presided below.

HORTON, J. The petitioner, Manchester Transit Authority (MTA), appeals a decision of the appellate board of the New Hampshire Department of Employment Security (appellate board) finding the respondent school bus drivers (claimants) eligible for unemployment benefits for the week ending February 28, 1998. We reverse.

In determining whether a claimant is covered by the eligibility exclusion of RSA 282-A:31, II(c), we look to whether the claimant was hired to work only when school is in session. The claimants argue, however, that MTA school buses are used for charter work during school vacations and that "there is a penalty for the drivers for refusing to do charter work." We conclude that that appellate board's characterization of the facts in this case as analogous to those in Appeal of Locke is clearly erroneous.

The appellate board is required to defer to the appeal tribunal's factual findings. See RSA 282-A:65 (1999). The appeal tribunal found that "in accordance with the [union contract], part-time school bus drivers will be utilized to perform all school related charter work in yellow school buses." It also found that "[i]f a charter is refused there is no threat of loss of employment, however the refusing driver is placed at the bottom of the seniority list." These facts are not analogous to those in Appeal of Locke, where the petitioner's employer required its employees to be on-call during [semester breaks] and the petitioner was "fearful that if she were not available during the slow business times, her job would not be assured when business in the area returned to its normal pace during the academic year." Appeal of Locke, 127 N.H. at 4050-06.

There is no evidence of any penalty for signing "no" to the charter work list. Once on the list, part-time operators are offered charter work "by seniority and on a rotating basis." When an operator's name is at the top of the list and the operator is offered a charter, the operator may still refuse, but the operator's name then goes to the bottom of the charter list. We disagree with the characterization of this consequence as a penalty, however, as the operator's name also goes to bottom of the list if the operator accepts and performs the work.

We conclude that the claimants were not expected to work when school was not in session and were not required to be "on call" during such times. We therefore hold that the claimants are in eligible for unemployment benefits for the established and customary 1998 February vacation. RSA 282-A:31, II (c).

BROCK, C.J. The plaintiffs, the Wolfeboro Neck Property Owners Association, an incorporated association of property owners in a Wolfeboro subdivision known as Embassy Estates, together with Bruce C. Beck, an individual property owner in that subdivision, appeals an order of the Superior Court (Fauver, J.) denying their petition to lay out two roads within the subdivision.

The plaintiffs contend that because the town improperly released the construction bond intended to assure that the roads would meet town standards, the court should have considered this fact when determining whether an "occasion" existed. We agree and conclude that the superior court erred as a matter of law.

The town argues that it owed no duty to the plaintiffs, relying upon Stillwater, 140 N.H. at 507 and Island Shores Estates, 136 N.H. at 304-08.

Unlike Stillwater and Island Shore Estates, this appeal involves a statutory analysis which requires an equitable balancing to determine whether an "occasion" exists to lay out a road. In that context, we need not find that the town owed a duty, the breach of which would be tortious, in order to hold that the town is not entitled to enhance any "burden" it may have in laying out a road by any action it unreasonably took which resulted in self-created adverse consequences.

In the case before us, consistent with its subdivision regulations, the town inspected the roads at various stages of construction to determine whether they would meet the town's highway standards. Indeed, the town's subdivision regulations, in order to protect members of the public from substandard roads, required a bond that the town could not release unless the roads met the town's standards.

NADEAU, J. The Supreme Court Committee on Professional Conduct (committee) filed a petition with this court after a hearing requesting that the respondent, Earl L. Kalil, Jr., be suspended from the practice of law for a period of six months for violations of the Rules of Professional Conduct (the Rules).

The respondent does not contest the committee's finding that he violated

Rules 4.4, 3.3(a)(1), 8.4(c) and 8.4(a) by threatening an unrepresented opposing party, by knowingly making a false statement of material fact to the court, and by engaging in conduct involving dishonesty and misrepresentation. Instead, he contends that a suspension from the practice of law is inappropriately harsh.

Not only did he act unprofessionally by attempting to intimidate a pro se litigant outside the courtroom, he abandoned his oath by lying about his conduct when questioned by a judge. He later admitted both his misconduct and his lie, but only after being confronted with evidence of his misconduct from another attorney.

Although the respondent urges us to impose the less severe sanction of censure, which the judicial referee also recommends, the respondent's conduct in this case merits and requires a period of suspension from practice. In light of the respondent's twenty-five years of practice without discipline and his admission of and remorse for his conduct, we believe a three-month suspension will adequately satisfy the several purposes of the Rules of Professional Conduct while recognizing the mitigating circumstances of this case.

NADEAU, J. The plaintiff, Clifford J. Ross, appeals an order of the Superior Court (Groff, J.) granting summary judgment to the defendant, The Home Insurance Company (Home). The plaintiff, an attorney, employed his son, David Ross, as an attorney in his firm in Manchester. On January 13, 1995, June L., a client of the firm, filed a two count writ, alleging that on July 19, 1993, David summoned her to his office after hours to sign some papers, and then raped her in the firm's offices. On June 5, 1996, June L. moved to amend the writ. The amended writ alleged the rape was a breach of David's fiduciary duty as an attorney (count I) and that the plaintiff was negligent for hiring and failing to supervise him (count II).

During the relevant period, the plaintiff owned consecutive professional liability insurance policies issued by Home. The policies limit coverage to personal injury or acts that arise out of the "rendering of failure to render professional services for others" as a lawyer. We have held that mere presence in the professional's offices does not provide a nexus between "professional services" and the act of rape; the act is in no way a professional service. See Niedzielski, 134 N.H. at 144. Nor is it related to or intertwined with the practice of law. Therefore, there is no coverage, irrespective of the fact that the victim may have been lured into the office ostensibly to sign legal documents.

The acts alleged in the second amended writ are the plaintiff's negligent hiring and supervision of David. The damages alleged relative to this claim, however, are "serious physical and psychological injury when she was raped."

Resulting damages are an essential element in a negligence claim. Thus, where the damages arise entirely out of an act that would not be covered under an insurance policy, the negligence claim is not one that would be covered under the policy either. See Winnacunnet v. National Union, 84 F.3d 32, 36 (1st Cir. 1996) (interpreting New Hampshire law).

BRODERICK, J. The petitioner, Scott L. McIntosh, appeals an order of the Hillsborough County Probate Court (Cloutier, J.) awarding the respondent, David McIntosh, the proceeds of their father's individual retirement account (IRA). We affirm. On appeal, the petitioner argues that the probate court erred in: (1) applying certain banking statutes to find that the respondent was entitled to retain ownership of the IRA; (2) failing to impose a constructive trust; and (3) finding that the respondent had not renounced his ownership of the IRA.

As the probate court concluded, the decedent's intent "at some other point in time" is not relevant in deciding the respondent's entitlement to the IRA where there was an "explicit written beneficiary designation in the initial IRA agreement which remained unchanged as of the date of the decedent's death." We have upheld the binding effect of such written beneficiary designations in other contractual arrangements, such as life insurance, see Dubois v. Smith, 135 N.H. 50, 60 (1991), and annuity pension accounts, see Estate of Frederick v. Frederick, 141 N.H. 530, 532-33 (1996). We see no reason to reach a different result with respect to IRA accounts.

BRODERICK, J. The plaintiffs, Ronald and Shannon Close and Dawn and John Cooper, appeal an order of the Superior Court (Hampsey, J.) permanently enjoining them from using a twenty-foot-wide utility access easement to their property. We reverse.

On appeal, the plaintiffs argue that the trial court (1) lacked subject matter jurisdiction to permanently enjoin them from using the easement, (2) misconstrued the deed, the easement agreement and the easement plan, and (3) erred in considering extrinsic evidence in evaluating the competing petitions for injunctive relief.

We do not find any ambiguity in the easement agreement and interpret its language as granting the plaintiffs the right to use the easement to obtain access to their property. By its terms, it clearly creates an ingress and egress from LeBlanc Road across the defendants' property to the plaintiffs' property that may be used in any way in which a public way may be used. Reference to the plan shows that the easement is twenty feet wide and indicates where on the defendants' property the easement is located.

We determine that the trial court's order enjoining the plaintiffs from using the easement was in error and remand to the trial court for further proceedings consistent with this opinion.

SECOND DEGREE ASSAULT - IMPROPER INTRAJURY COMMUNICATION
No. 99-160 - June 11, 2001
The State of New Hampshire v. David Bathalon

BRODERICK, J. Following a jury trial in Superior Court (Sullivan, J.), the defendant, David Bathalon, appealed his conviction for second degree assault. See RSA 631:2 (1996). On appeal, he contends that improper intrajury communication was so prejudicial as to require a mistrial, and that the trial court's jury instructions impermissibly amended his indictment. We affirm.

We first address the defendant's argument that a mistrial was required because prior to deliberations one juror improperly expressed her opinion on his guilt to other jurors. Here, the trial court not only excused the juror who made the improper remark but assured itself, after careful voir dire of the remaining jurors, that no prejudice had affected the panel. On the record before us, we reject such a claim in this case.

The defendant also argues that the trial court impermissibly amended the indictment, which charged him only with a reckless mens rea, by instructing the jury that if it found he acted either purposely or knowingly, it could convict him of second degree assault.

If the jury found the defendant guilty of a more culpable mental state than recklessness, he could then be convicted as charged. See RSA 626:2, II. That is, if the jury concluded that the defendant's conduct, which involved hitting the victim several times with a baseball bat, was done purposely or knowingly, the defendant was by definition acting recklessly. See id. Otherwise, a defendant could successfully defend a charge of reckless conduct by claiming that his actions were the result of a purposeful or knowing mental state. This would produce an absurd result.

The Bar News is now publishing unofficial summaries of opinions by the Supreme Court. Previously, the Bar News has been publishing the first paragraph of decisions. It is our hope that Bar members will find this new format more informative and useful. Send your comments to Dan Wise, editor, at dwise@nhbar.org.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer