Shenanne Tucker

Supreme Court At-a-Glance Contributor Shenanne Tucker, Practiced law in New Hampshire and Maine since 2002, and currently is predominantly privately employed working in insurance.

Appeal from Merrimack County, No. 2019-0051

Nov. 20, 2020

Reversed and Remanded.


  • Whether the trial court erred in dismissing plaintiff’s breach of contract suit against the NH DOC based on findings that the plaintiff’s suit for specific performance was barred by sovereign immunity and/or because he lacked standing.


Prior to the plaintiff’s breach of contract lawsuit, the plaintiff had been part of a 42 U.S.C. §1983 class-action lawsuit in which the federal district court determined that the NH DOC had violated the Eight Amendment by subjecting inmates to cruel and unusual punishments.  As part of the proceedings in the federal lawsuit, the NH DOC was ordered by consent decree to provide, and confirm by regular inspections, conditions and services that met specified standards. In subsequent contempt proceedings regarding alleged noncompliance with the decree, the decree was first modified and was then ultimately developed into a settlement agreement that, by its terms, “’constituted a settlement agreement enforceable by the courts of the State of New Hampshire.’”  Years later, the plaintiff sued for alleged breaches of this settlement agreement.  Upon the defendant’s motion, the trial court dismissed the plaintiff’s breach of contract action, finding that the plaintiff’s action for specific performance was barred by sovereign immunity and that the plaintiff failed to allege an injury to himself to establish standing.

The Court noted that the DOC is immune from suit unless it has consented to suit by way of a limited and specific statutory waiver.  Though at the time the trial court heard the DOC’s motion to dismiss RSA 491:8 established waiver of immunity only in contract suits seeking monetary awards, while on appeal the statute was subsequently amended to expand the scope of waiver also to “’specific performance and other equitable remedies that are not limited to money damages.’”  Therefore, the DOC withdrew its defense on the scope of the statute, but preserved its argument that the agreement was not a type of contract subject to RSA 491:8.

In the interests of judicial economy, the Court took up the DOC’s preserved arguments.  Finding the settlement agreement to be an express contract with the State within the meaning of the statute, the Court held that recently amended RSA 491:8 did apply to the settlement agreement at issue and established a statutory waiver of sovereign immunity with respect to the plaintiff’s breach of contract action.

The Court also determined that the plaintiff had sufficiently alleged that his interests have or will be directly affected by the DOC’s alleged breach of contract to establish the requisites of actual dispute and legal injury to create standing.  In a contract action, the plaintiff seeks to protect his “’interest in having promises performed,’” and thus the alleged breach of the promises is the alleged legal injury that results in actual, not theoretical, dispute.  Whereas the plaintiff was a party to the settlement agreement, his interest in enforcement of its terms is not abstract and its breach would not a “generalized wrong allegedly suffered by the public at large.”

Accordingly, the Court reversed and remanded.


Clifford E. Avery, pro se plaintiff, on the brief.


Gordon J. MacDonald, attorney general, with Lisa L. Wolford and Anthony J. Galdieri, senior assistant attorneys general (on the brief), for the defendant.


Amicus briefing by New Hampshire Legal Assistance (Elliot Berry and Kay E. Drought), Disability Rights Center-New Hampshire, Inc., of Concord (Pamela E. Phelan and Todd R. Russell), American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz), Paul Blackmer, and Darrin Partlow.