Lex Loci - December 2009
Lex Loci Returns
By David Ruoff
Author’s note: This is my first attempt at writing the Lex Loci column, so bear with me. I have been a lawyer since 1996, with the bulk of my career committed to criminal litigation. I had the honor of working on case briefs (for Lex Loci) for Charlie DeGrandpre as a summer associate at the McLane law firm in 1994. I hope to carry the Lex Loci torch with the same sense of professionalism, dignity and wit….
|Editor’s Note: The Lex Loci column, a fixture of the NH Bar Journal, is not gone, but it is in transition. We are soliciting candidates interested in writing the column on a regular basis, and we welcome new approaches to the task of regularly reviewing and highlighting interesting NH Supreme Court decisions. Our first candidate is attorney David Ruoff. The following is an excerpt of his first column. Future columns will be published in conjunction with the online editions of the Bar Journal.
Wyatt’s Case, decided September 18, 2009, is a rare attorney disciplinary case and involves comprehensive review of Rule 1.7 (conflicts of interest) of the Rules of Professional Conduct. The facts are intricate. In essence, the Court found that Attorney Ward was caught in a conflict because he represented both the ward of a conservatorship and the conservator.
In 1998 Attorney Wyatt began advising David Stacy (the would-be ward) on personal matters, including his relations with trustees and trusts previously established for his benefit. Attorney Wyatt’s firm prepared a general power of attorney for Mr., Stacey and chose Michel Brault (the would-be conservator) to manage Mr. Stacy’s affairs. Brault was a personal friend and CEO of a former client of Attorney Wyatt’s. Attorney Wyatt continued to advise Mr. Stacy about his personal affairs.
Attorney Wyatt’s ethical dilemma arose in 2001 when Mr. Stacy’s mother “dismissed” him and cut off his financial support. In order to resolve this dispute, Attorney Wyatt, representing Mr. Stacy, negotiated a settlement agreement that required Mr. Stacy to file a petition for voluntary conservatorship. The petition requested that Brault be appointed conservator. After the petition was granted, the Court found, Attorney Wyatt continued to represent Mr. Stacy personally and acted as counsel to Brault as conservator. The relationships began to sour when Mr. Stacy needed medical treatment in Texas and a petition for involuntary guardianship was filed. Eventually, Mr. Stacy dismissed Attorney Wyatt as his personal counsel; and successor counsel moved to disqualify Attorney Wyatt when he continued to represent Brault in subsequent probate court proceedings. After the matter was referred to the Attorney Disciplinary Office, Attorney Wyatt stipulated to violations of Rules of Professional Conduct 1.7 (Concurrent Conflicts of Interest), 1.9 (Successive Conflicts of Interest), 1.5 (Illegal Fees) and 8.4(a) (Violation of Ethical Rules).
“Dual representation” issues under Rule 1.7 are always murky. In this case, Attorney Wyatt was essentially caught in a “pickle” between representing Mr. Stacy with respect to his conservatorship and Brault as the conservator, presumably because of the involuntary nature of the guardianship. The Court concluded that, although some of these conflicts are waivable, Attorney Wyatt did not “expressly discuss conflicts of interest or their potential impact upon the attorney-client relationship.” 1
Attorney Wyatt’s problems were compounded when he was dismissed from representing Mr. Stacy, but continued to represent Brault in the NH Probate Court proceedings. The Rule 1.7 violations had a domino effect with respect to continued representation of either party. To represent Brault in proceedings that were “materially adverse” to Mr. Stacy’s interests, Attorney Wyatt should have obtained a waiver from his previous client. The Court found violations of Rule 1.9 because there was no evidence that Mr. Stacy waived the conflict – which might have otherwise allowed Attorney Wyatt to continue with his representation.
The Professional Conduct Committee found violations of the specific Rules of Professional Conduct noted above and rejected the hearing panel’s recommendation for public censure. It ordered the ADO to petition for disbarment. In its assessment of the appropriate sanction for Attorney Wyatt, storm clouds gathered on the horizon. The Court started its analysis by concluding that “the appropriate baseline sanction is disbarment.” The Court based its decision on the fact that Attorney Wyatt’s violation of the rules was “knowing,” had endured for a significant amount of time, and had the potential for serious injury to Mr. Stacy. Yet, the storm clouds cleared as the Court discussed Attorney Wyatt’s mitigating factors: his contrition, lack of disciplinary record, superlative professional reputation, and the delay by the ADO in processing the case. In the end, the Court ordered a two-year suspension.
State v. Gary Dodds, decided August 21, 2009, is the appeal of the celebrated case of the former Democratic candidate for the U.S. House of Representative. Mr. Dodds’ case made daily headlines as it was being tried in Strafford County. He was charged with and convicted of faking his own disappearance and lying to police about his conduct (False Public Alarm), and altering his physical appearance to support his (allegedly false) story (Falsifying Physical Evidence). The motive for his alleged “stunt”? No, not to get on a reality TV show. Rather, according to the state, Mr. Dodds created a false public alarm to give a publicity boost to his ailing campaign.2
The case began in early April, 2006 when a woman driving southbound on the Spaulding Turnpike saw Mr. Dodds’ car swerve and hit a guardrail.3 By the time she got to his car, Dodds was gone. She called 911 and a highly publicized, 27-hour search and rescue operation ensued. He was found in a wooded area behind a school one mile and a river-crossing away from where his car hit the guardrail.
As Dodds explained what had happened to him, his account began to unravel, causing investigators to doubt his story. He could recall only vague details of his ordeal, and his only obvious injuries were his swollen and “cold” feet. Eventually, the state was able to find two expert witnesses who could refute Dodds’ version of events.
RSA 644:3,I defines the relevant portion of the “false public alarms” crime: “Any person who directly or indirectly communicates to a governmental agency that commonly deals with emergencies involving danger to life or property a report known by him to be false a[n]…emergency.” In his appeal, Mr. Dodds, quite reasonably, argued that this statute could not apply to his conduct because he never “communicated” a “report” to any agency. Unlike one of my former juvenile clients who had a penchant for pulling the fire alarm in his school, Mr. Dodds never had any direct communication with the emergency responders. The Court looked to the word “indirectly,” and concluded that by evading the search and rescue personnel, he indirectly communicated to them a “report” of an emergency.
The Court also addressed the claim that Mr. Dodds altered the appearance of his feet to support his version of events. He was charged with "altering any thing” (his feet), “with the purpose of impairing [their] verity or availability for an official proceeding or investigation [while] believing that an official proceeding or investigation is pending or about to be instituted.”4 Mr. Dodds argued that his feet, if uninjured, would not have been relevant to his case. Therefore, he argued, if he altered something that was irrelevant, it could not be construed as violating the statute. Expanding on State v. McGurk,5 the Court found that the State did not have to prove that the “thing” altered would have to be otherwise admissible at trial if it had not been altered.
The Court, not getting “cold feet” about reaching issues in this case, addressed two expert witness issues. The prosecution somehow found an expert on “cold feet” who testified that the condition of Mr. Dodds’ feet was the result of their being immersed in water from one to ten hours, depending on the water temperature. The Court found that his testimony was sufficient to sustain his conviction for falsifying physical evidence.
Lastly, Mr. Dodds argued that the Court erred in admitting testimony from Mr. Dodds’ treating neurologist. Mr. Dodd’s argument was weakened, a bit, by the fact that the neurologist was listed on his own witness list. In this case, the neurologist sent a letter to the prosecution a week before trial and related that she believed that Dodds was fabricating his memory loss.6 The prosecution promptly turned over the letter and the defendant objected to her new opinions. The trial court ruled that she could not testify to her belief that Mr. Dodds was “faking” portions of his story. Ultimately, the defendant could not show how he was prejudiced by the delayed disclosure. The Court hinted that any perceived prejudice might have been avoidable, or mitigated, if he sought her deposition.
State of New Hampshire v. Hess Corporation, decided August 21, 2009, involves a portion of the full-time-employment-for-lawyers MTBE litigation. The State had appealed an order granting a motion to dismiss filed by two of the defendants, Flint Hills Resources and Western Refining Yorktown, based on improper service of process and the corresponding lack of personal jurisdiction.
The case began when the NH Attorney General filed suit against refiners and manufacturers of MTBE to recover for damage caused to ground and surface waters in the state. The case was removed to federal court where it eventually became part of a Multidistrict Litigation case in the Southern District of New York. The State moved to remand the case to the N.H. Superior Court based on a lack of subject matter jurisdiction, which was denied.
With federal court approval, the State amended its complaint to add Flint Hills and Yorktown as defendants. Both were properly served under the federal rules. Then, the Second Circuit reversed the trial court’s denial of the State’s request to remand and the case was sent back to the Merrimack County Superior Court – but with two more parties added.
Flint Hills and Yorktown successfully moved to dismiss by arguing, cleverly, that they were never served as required by New Hampshire law. They argued that once the Second Circuit remanded the case because there was no federal subject matter jurisdiction, the Court’s order allowing them to be added to the lawsuit was not effective (because the court lacked jurisdiction). Not clever enough. The N.H. Supreme Court held that “after a case has been remanded for lack of subject matter jurisdiction, the effect to be given federal court orders is a matter of state policy.”7
Thus, it was within the discretion of the trial court to decide whether the amendment to the complaint was valid. The rationale for this rule is simple: a state court’s acceptance of federal pleadings and orders on remanded cases serves judicial economy and efficiency; it prevents unfairness created by disparate results; and it promotes comity.
On the issue of valid service, the Court quickly dismissed their claims, stating that to adopt the defendant’s argument would be tantamount to “favoring substance over form.”8
Sarah Everitt v. General Electric Co., decided August 7, 2009, affirmed a grant of summary judgment for GE. This case involves a motor vehicle collision in which the plaintiff was a passenger in a car that was struck by an off-duty GE employee. The day before the accident, the GE employee was sent home by a company nurse because he was “confused and disoriented.” He was ordered to stay home for 3-4 days. He ignored her orders and returned the next day (the day of the collision) to the Hooksett GE plant. He appeared disheveled and his speech was slurred. A GE supervisor ordered him to leave the plant and he eventually did so. When he returned a couple hours later, GE called the local police. The police arrived and conducted field sobriety tests (which he passed) and he was told to leave.
A few hours later he was involved in the collision that gave rise to the plaintiff’s injuries. The plaintiff’s theory was that GE and its supervisor owed a legal duty to her because GE had adopted a policy about how a supervisor should act when he or she suspects that an employee is impaired (sort of a third-party beneficiary theory). After a respectable string-cite of cases from other jurisdictions, the Court found that the adoption of internal corporate policies does not create a legal duty of care under New Hampshire common law.
The plaintiff also argued that the Restatement (Second) of Torts, section 317 and 319 create duties of care that GE owed to her. Section 317 of the Restatement essentially provide that a master is obligated to control a servant in order to prevent him from intentionally harming others or “from so conducting himself as to create an unreasonable risk of bodily harm to them.”9 Section 319 captures the same sentiment, but does not limit it to the master-servant relationship.
The Court assumed that the plaintiff was correct about the existence of these duties, but concluded that they had fulfilled their duty to control the employee once they called the police and the police “took charge” of the employee. No word on whether the town of Hooksett was subsequently added to the suit.
State of New Hampshire v. Daniel Hynes, decided August 5, 2009, a case involving an attorney who was convicted of theft by extortion. I could not make up these facts. In 2006, Mr. Hynes, apparently as part of a larger letter writing campaign, send a letter (on his own law firm’s letterhead) to Claudia’s Signature Salon. The letter declared that the salon offered “$25 for haircuts, but $18 for a Men’s cut and $12 for a children [sic] haircut.” The letter declared that this practice was unlawful, discriminatory, violated RSA 354-A:17, and RSA 358-A (Unfair and deceptive business practices). The letter went on to threaten action with the NH Human Rights commission, court action, and demanded payment – to “settle” the case – for $1000.
Claudia’s, unnerved by the letter, contacted Mr. Hynes and offered to settle for $500. Mr. Hynes agreed and said he would prepare the documents. He said that he was never a customer of Claudia’s, that he saw their “discriminatory” prices on the Internet, and that he was working out settlements with other would-be defendant’s. Claudia’s contacted the NH Attorney General’s Office, which sent an investigator to attend the settlement meeting. At the meeting, Mr. Hynes said that he would keep the $500 for himself and re-affirmed that he had never been to the salon. Upon taking the $500, he was arrested by the investigator.
Mr. Hynes argued that a threat to file a lawsuit cannot be extortion, ever. The Court, interpreting RSA 637:5,II(i), explained that while threatening to institute a law suit alone does not carry the “hallmarks of an extortionary act,” the inquiry does not end there. The law also requires an examination of the “threats” potential harm and the potential benefit to the person making the threat. In short, the totality of the circumstances is what it determinative.
He goes on to argue that RSA 637:5 does not apply to him because he stood to “substantially benefit” from his actions.10 He suggested that he would have substantially benefitted from knowing that he had halted gender-based, discriminatory pricing of haircuts in Concord, N.H.11
The Court summarily trimmed down Mr. Hyne’s arguments. The Court held that there was not lawful claim under RSA 358-A because Mr. Hynes had never been a client of the salon and was not “injured” as required by the statute. The Court applied a similar analysis – over a dissent - to Mr. Hyne’s defense that he was asserting a claim under RSA 354-A (unlawful discriminatory practices). The Court held that he was not an “aggrieved person” and had no standing to threaten to bring an action under the statute. Of course, the fact that Mr. Hynes was a practicing attorney and sent the threat on letterhead weighed on the Court’s analysis.
Mr. Hynes threat to bring “baseless” litigation was also the undoing of his other defenses. He argued that the extortion statute was overbroad and that it violated his freedom of speech. The Court was quick to point out that neither the state nor federal constitutions immunize a person’s pursuit of baseless litigation.
A word on the dissent. Justice Dalianis was bothered by the fact that the majority concluded that Mr. Hynes’ threats of litigation were objectively baseless, yet until this case, the Court had not held that someone had to be an “aggrieved person” in order to file a claim under RSA 354-A. It seems that that crux of the issue in her dissent was that the Court was applying a “new” rule to a defendant in a criminal case. She makes a good point.
Appeal of Stonyfield Farm, decided August 5, 2009, is an appeal from the Public Utilities Commission. It is interesting to the extent that it is a rare case that discussed standing in an administrative appeal. In this case, Public Service of New Hampshire, in order to comply with the enactment of the Mercury Emissions Program (RSA 125-O) was required to install “scrubbers” at its Merrimack Station. PSNH was to recover the costs of this project through a PUC-approved default service charge.
In August 2008, the PUC received a Securities and Exchange Commission report that showed that the cost of the program had risen from $250 million to $457 million. This would obviously impact rate increases in the future. The PUC invited PSNH and the N.H. Office the Consumer Advocate to brief it on it authority with respect to the scrubber project.12 Eventually, the PUC determined that it had no authority over the scrubber project and that its authority was limited to determining the method (not amount) of cost recovery at the conclusion of the project.
A group of corporate citizens/rate payers filed a motion for reconsideration – obviously hoping for PUC oversight. The PUC found that they had standing to file the motion as ratepayers, but denied the motion. They appeal.
On the issue of the administrative standing, the Court held that rate payers in this case lacked standing because they had not suffered any “immediate or direct injury.” Although it might only be a matter of time before the other shoe drops, the Court found that any “potential injury the petitioners may suffer would arise only in a subsequent rate setting proceeding.”13 They could not appeal the PUC’s statutory interpretation of its own authority.
State of New Hampshire v. Brian Sheppard, decided August 4, 2009, reversed a conviction for aggravated felonious sexual assault because the prosecution knowingly withheld favorable, exculpatory information from the defense. In this case, two men were indicted for aggravated felonious sexual assault on the same complaining witness. Their trials were severed. As part of the investigation of the case, a routine “rape kit” was collected by a local pediatrician who testifies regularly for the prosecution in such cases. She filled out the multi-page form that accompanies the kit, based on an interview she conducted with complaining witness. However, she redacted, or removed, a page and a half of the witness’s statement before sending it to the police.
The form she submitted was not marked “redacted” and there was no way to tell from reading the report that portions had been withheld. The pediatrician believed the redacted statements to be privileged. The redacted report – and the fact that it had been redacted – was not discovered until after Mr. Sheppard had been convicted, but before his co-defendant had been tried. Upon introduction of the evidence contained in the report, at trial, the complaining witness refused to testify and the charges against Mr. Sheppard’s codefendant were dismissed.
When Mr. Sheppard learned of the existence of the redacted report – and probably the result of his co-defendant’s trial – he requested a new trial. At first, the trial court granted the request. However, nine months later, while issues in the case were being litigated, the trial court reversed itself.
On appeal, the Mr. Sheppard sustained his burden of proving that the information withheld was material and favorable. The Court found that the redacted portions of the report were favorable because the information might have an impact on the witness’s credibility.
The Court appeared concerned that the pediatrician did not let anyone know of the redactions, but, rather, rearranged the notes and omitted page numbers so as to create the false impression that the report was complete. As a former sex-crimes prosecutor, I knew where the Court was going with this one. The Court reversed the conviction because the case hinged on the witness’s credibility.
State of New Hampshire v. Antoine Bell-Rogers, decided August 4, 2009, involves a robbery case in which the defendant argued that his in-court and out-of-court eyewitness identifications of him should have been excluded from his trial because they were the result of an unduly suggestive photo array. This case began with the armed robbery of El Mexicano restaurant in Manchester.
There were a few witnesses to the robbery, including the two owners and an employee. All three gave brief descriptions of the two men. One had a gun and fired a shot the other carried a knife.
The witnesses gave similar descriptions of the gunman: a black male in his twenties, 160-170 lbs, wearing black jeans, white shirt, and red bandana. The Manchester Police used a computer program to use those descriptors and compile photo array for the witnesses to identify. Mr. Bell-Rogers was the only black male in the photo arrays that was wearing a white shirt. The Court referred to the shirt by a colloquial name: a “wife beater.”
Mr. Bell-Roger’s attorney sought to exclude the identification from evidence, because it was impermissibly suggestive because of the white shirt. The Court, citing to State v. Rezk14, explained that an out-of-court identification procedure is unnecessarily suggestive if it “implicitly conveys [the police’s] opinion of the criminal’s identity to the witness by means of a photographic display.” So, does the fact that Mr. Bell-Rogers was the only one in that array wearing a white “wife beater” pass that test?
No. At least one of the witnesses indicated that his identification of the defendant in the array was based on the color of his skin, his beard, and his moustache. There was nothing in the record that indicated that either witness had been influenced by the “wife beater.”
Joseph Smith v. HCA Health Services of New Hampshire (Portsmouth Regional Hospital), decided July 31, 2009, involves claims of false imprisonment, negligence and loss of consortium by the plaintiffs. They appealed a grant of summary judgment for the hospital. The case arose when Mrs. Smith began to abuse her prescription medication. Her nurse practitioner suggested that she check into the defendant’s detoxification facility. Upon checking herself in, she was placed in a “lockdown” facility. Hospital staff prevented her from leaving and denied her visitation with her husband. When her husband and the nurse practitioner complained, the hospital released her. They filed suit 2 years later.
Although the facts strike one as somewhat offensive, this case is really about the necessity for an expert witness. The plaintiffs offered up their nurse practitioner as their only expert and she crumbled – as did the plaintiff’s case – in her deposition. She testified that she did not consider herself to be an expert on the standard of care for an in-patient detoxification program15. She also could not give expert testimony concerning whether the defendant’s actions caused the plaintiff’s psychological injuries.
On appeal, the plaintiffs tried to argue that they did not need an expert to establish their claims. The Court disagreed and explained that the plain language of RSA 507-E expressly requires competent expert testimony on the issues of standard of care and causation of injuries in medical injury cases. The plaintiffs tried to argue that the Victim Bill of Rights provides the standard of care, but the Court pointed out the RSA 151:30 (the codification of the victim’s Bill of Rights), is not a cause of action they alleged.
Geoffrey Rallis v. DeMoulas Super Markets, Inc, decided July 10, 2009, is case about a man who slipped on green beans. The plaintiff was walking through the supermarket when he slipped and fell because the floor was wet and had green beans on it. He refractured his left hip.
Prior to the trial, the plaintiff requested a jury instruction that specifically informed the jury that they could find for the plaintiff if he showed that the defendant knew or should have known that green beans regularly spilled onto the floor, creating a dangerous condition. The plaintiff’s theory was that the defendant had constructive knowledge of the spilled beans because it was a regular occurrence. The trial court gave a different instruction. He didn’t spill the beans. Instead, the trial court instructed that only the amount of time the beans were on the floor could establish liability.
The Supreme Court disagreed. It held that in such “slip and fall” premises liability cases, constructive knowledge of unreasonably dangerous conditions can be proven by other means, such as knowledge of previously spilled beans.
State of New Hampshire v. Scott Robinson, decided June 12, 2009, a robbery conviction that was reversed because the police cannot create an “exigent circumstance” and then use it as the basis make a warrantless entry into someone’s home. On March 18, 2006, the Crosstown Variety Store in Manchester was robbed. The perpetrator left behind a set of keys. The officers responding to the call astutely observed that one of the keys was for a Kia, and that there was a Kia parked down the street in the direction the perpetrator had fled. Yes, this seemed to be the key to the case at that point.
The police ran the plates and learned that the defendant lived a few blocks away. Yes, the key fit. However, now 45 minutes after the robbery, the police arrived at the defendant’s house en masse. They pounded on the door and no one answered. Moments later, the defendant’s girlfriend opened the door. The officers drew their weapons and conducted a quick search of the area. She told them that the defendant was in the bedroom with a knife to his chest. They went into his room and arrested him.
On appeal, Mr. Robinson argued that the entry into his home was illegal. Turns out he was right. The Supreme Court ruled that the police cannot create the exigency (Mr. Robinson holding a knife to his chest?) and then use it as a means to get around the warrant requirement. The Court reminded its readers that the home is the place of greatest constitutional protections. It also noted that there was nothing in the factual record to support many of the State’s claims for exigency: no evidence that he was a threat to anyone; no evidence that he was going to destroy evidence, or intimidate witnesses.
Thus, the police were required to get a warrant before entering his home.
State of New Hampshire v. Charles Cook, decided May 15, 2009, involves a case in which the defendant’s conviction for aggravated sexual assault was reversed because the jury heard inadmissible evidence of prior bad acts. The victim in this matter was Mr. Cook’s granddaughter.
At the time of his trial, Mr. Cook faced similar charges for similar acts committed on the same victim in Pennsylvania (where the defendant lived). Under most circumstances, New Hampshire Rule of Evidence 404 precludes evidence or other prior bad acts to establish the defendant’s guilty “propensity” to commit the crime. However, there are non-propensity uses for such evidence and in those cases where it is admitted the trial judge gives a limiting instruction, as it did in this case.
However, the reason the trial court found it was admissible was novel. The state argued that the Pennsylvania acts were admissible to prove that the defendant intended to commit a pattern as sexual assault, as he was charge with “pattern” aggravated sexual assault. The state should have checked with the Appeals Division at the N.H. Attorney General’s Office, because on appeal, the state conceded that this was error and it was not required to prove that Mr. Cook intended to commit a pattern of sexual assaults. The Supreme Court also quoted the relevant portion of RSA 632-A:2,III, which states that “the mental state applicable to the underlying acts of sexual assault need not be shown with respect to the element of engaging in a pattern of sexual assault.” It is not clear from the opinion whether this portion of the statute was considered by the trial court.
In an effort to salvage the conviction, the Attorney General urged the Court to find that the evidence was properly admitted, but for the wrong reason. It argued that the evidence of the Pennsylvania assaults was admissible to explain why the victim delayed in reporting the offenses. In this case it was a five-year delay. However, the Court reviewed the record and concluded that there were no facts to support the claim. As in most cases in which Rule 404(b) evidence is improperly admitted, the conviction was reversed because the state could not show that the error was harmless.
Almost as an aside, the Court addressed a statute of limitations issue on appeal that is worthy of mentioning. The defendant had also been charged with simple assault, which carries a one-year statute of limitations. The defendant raised this issue at the close of the prosecution’s case. The Court said that Mr. Cook was required to give pretrial notice of this defense under Superior Court Rule 98. The Court said that once raised it becomes an element of the offense that must be proved by the state beyond a reasonable doubt. But it must be raised as an issue within 30 days of arraignment. At least Mr. Cook will get his chance to raise it a second time.
1Slip Op. at 12.
2This is not in the reported opinion, but this author was in the courtroom during this portion of the State’s closing argument.
3This was during a snowstorm.
5157 N.H. 765, 779 (2008)
6It is not clear from the opinion how her opinion was expanded or modified from prior disclosures.
7Slip Op. at 4
8Slip Op. at 9.
9Slip Op. at 6.
10The catch-all provision in the statutes says that an extortive act is one that “would not in itself substantially benefit” him. So, Mr. Hynes thought that it he showed that he “substantially benefitted” from his conduct, then, the catch-all provision would not apply to him. By this logic, he should have asked for $10,000.
11It is not clear whether the settlement agreement contained such an injunction.
12It seems as though the PUC was concerned about the potential rate increase and wanted to know whether it could meddle in the scrubber project.
13Slip Op. at 6.
14135 N.H. 599, 601 (1992)
15In response to the defendant’s motion for summary judgment, the plaintiffs attached an affidavit from their nurse practitioner in which she “clarified” that she was well-qualified to offer opinions about standards of care. However, she never explained what the standards were.