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Bar News - June 3, 2005 Supreme Court At-a-Glance ~ April 2005 By: Robert J. Bradfield, III 
Robert J. Bradfield, III is a solo practitioner in Concord, NH. ADMINISTRATIVE LAW Appeal of Pinetree Power, Inc. & a. PUC properly determined that Schiller Project was in best interest of PSNH retail customers, and PUC has rate-making authority to approve the PSNH cost-recovery methodology, all in accordance with requirements of RSA 369-B: 3-a and statutory scheme. There was no legal insufficiency in the PUC's orders, which included sufficiently detailed findings of fact and conclusions of law to support its orders and for appellate review, consistent with RSA 541-A: 35. Appeal of New Hampshire Youth Development Center RSA 281-A: 29 does not apply to worker who is eligible to receive social security benefits. Dissent would apply the denial only to future adjustments. Statute is unambiguous -- once social security benefits become available, workers' compensation benefit reverts to the amount of the original award.
CONSTITUTIONAL LAW Robert A. Baines, Mayor of the City of Manchester & a. Petitioners' challenge to the legislature's adoption of Laws 2004, Chapter 200 as being violative of RSA 14:8 and RSA 20:2-a, statutes that concern non-constitutionally mandated legislative procedures, is non-justiciable per Part II, Articles 22 and 37 of the NH constitution. Substantively, Laws 2004, Chapter 200 does not violate the origination clause, Part II, Article 18. While Laws 2004, Chapter 200 is a "money bill", there is no clear indication that constitutionally required procedures were not followed, or that this Chapter did not originate in the House. Changes in that Chapter after it left the House were not material.
CONSTITUTIONAL LAW / ZONING ORDINANCE Richard Taylor & a. v. Town of Plaistow Ordinance does not violate equal protection or due process, as it is rationally related to town's legitimate interest in aesthetics, safety and planning as to due process claim, and ordinance is fairly and substantially related to such town interests as to equal protection claim.
CONTRACTS Michael S. Sherman, M.D. v. Joseph M. Graciano, M.D. & a. Yes. Arbitration decision may be modified upon finding of "plain mistake," and an award may be vacated when the mistake was the result of misapplication of the law to the facts. Trial court and arbitrator improperly allowed extrinsic payroll evidence to alter an unambiguous provision of the parties' employment contract.
CRIMINAL LAW State v. MacMillan When a law enforcement officer fails to obtain authorization for a one-party interception under RSA 570-A: 2,II (d), exclusion of the officer's testimony is not required under RSA 570-A: 6 if the testimony is based upon personal recollection of the conversation, independent of the unauthorized recording. The State's appeal is timely, because even if the trial court's order had addressed the admissibility of the detective's testimony, the court may reconsider its previous ruling. The trial Court's discretionary powers are continuous. They may be exercised, and prior exercise may be corrected as sound discretion may require, at any time prior to final judgment. State v. Lecouffe Held: While trial court properly imposed conditions for sentence suspension in whole or in part, trial court's reliance on its original order to deny defendant's motion was an abuse of discretion because it had the effect of imposing an impossible condition on defendant's ability to seek sentence reduction. Defendant is not necessarily entitled to sentence reduction, but his failure to satisfy the impossible condition may not be a basis for its denial.
FAMILY LAW In the Matter of Tatjana A. Donovan and Robert F. Donovan, Jr. Unlike other provisions in the statutory scheme, RSA 458-C: 2,IV (a) does not require a specific finding of voluntary unemployment or underemployment as a prerequisite for court to impute income to a party for child support purposes, although trial court's discretion on the matter must be sustainable on the record. The trial court may have erred in not granting party's request to strike the provision of stipulation regarding payment of child's extracurricular expenses, which are included in the child support guidelines. On remand, trial court may consider whether special circumstance, such as home schooling of child, warrants an adjustment to strict application of the guidelines. Amendment to RSA 458:17, prohibiting child support orders from requiring a parent to contribute to adult child's post-high school educational expenses, is to be applied prospectively from its 02/02/04 effective date, consistent with legislative history. (Dissent would apply statute retroactively, reasoning that provision requiring payment of college expenses is a support order, modifiable by a substantial change in circumstances, such as a change in the law.) Provision of stipulation tying child support annually to CPI index is vacated, as it is inconsistent with child support guidelines because it does not reflect actual changes in parties' incomes.
PROMISSORY ESTOPPEL - JURY INSTRUCTIONS William C. Jackson & a. v. Charles W. Morse, Jr. & a. Promissory estoppel serves to impute contractual stature based upon an underlying promise, the value of which is the presumptive measure of damages, unless such an award would be inequitable. A single measure of damages, such as expectation or reliance methods, is not always applicable. Here, case is remanded for trial on damages only. While (the measure of) expectation damages is presumptively to be applied, court may choose a different measure if such application would be inequitable. If proper measure of damages turns on resolution of factual dispute, jury shall be instructed to apply only one measure, depending upon how it resolves the factual dispute. Affirmed as to preservation of issues for appeal and attorney fees decision.
REAL PROPERTY -- ZONING John R. Harrington & a. v. Town of Warner Use variance was properly granted. Owner proved hardship, as zoning ordinance as applied would interfere with the reasonable use of his property, property is in a unique setting, and variance would not alter the essential character of the neighborhood. Evidence before the court reasonably supported its findings.
REAL PROPERTY - LEASES David A. Pope and Suzanne M. Pope v. Nancy Moran Lee Trial court erred, as parties' agreement as expressed in 1998 lease and other correspondence reflects their intent for lessee to have the option to renew the lease for as long as she wishes, but that the right is not assignable to another lessee. Despite lessors' attempts to invalidate the lease through challenges to several of its provisions. Lease clearly shows parties' intent, and terms of lease including lessee's option for continual renewals are reasonable.
REAL PROPERTY - PARTITION Dena Delucca & a. v. Roland H. Delucca While trial court properly determined that two lots at issue had different values, court erred by limiting its assessment to the two lots together. Under RSA 547-C: 25, each lot must be assessed separately and an express determination made by the trial court as to whether the property may be divided, by metes and bounds, without causing great prejudice or inconvenience. If either lot may be divided, then partition of that lot should be ordered. If neither lot may be divided but the lots together may be, then this shall be ordered. If not, then sale of the lots may be ordered.
REAL PROPERTY - LAND USE CHANGE TAX ABATEMENTS Woodview Development Corporation v. Town of Pelham LUCT, applicable to lands taken out of current use for development, may be assessed under RSA 79-A: 7, and should be based upon the betterments made to the land as well as the full and true value of the property, including consideration of the potential for development. Change in use occurs, for LUCT purposes, upon submission of taxpayer's application for subdivision approval.
RIGHT TO KNOW LAW Brian D. Lamy v. New Hampshire Public Utilities Commission Right to know law exempts from disclosure "files whose disclosure would constitute an invasion of privacy." Three-part test for disclosure has been judicially created - whether there is a privacy issue at stake, nature of the public's interest in disclosure, and a balancing of these interests. Held: privacy of PSNH's residential customers outweighs any interest in public disclosure, but names and addresses of business customers may be divulged without violating Right to Know law.
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