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Bar Journal - Summer 2004

Lex Loci: A Survey of New Hampshire Supreme Court Decisions


A little noticed part of many Supreme Court decisions is the standard which the Court uses when the question presented to it is one of statutory interpretation. In law school (at least at the University of Michigan Law School), this area of the law was covered by a course called Legislative Law. A recent case, Remington Investments, Inc. v. Howard, opinion issued March 12, 2004, presents a rare opportunity for a crisp summation of the Court’s guidelines when reviewing a statute:

This court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole….In interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning….Where the language of a statute is clear on its face, its meaning is not subject to modification….We will neither consider what the legislature might have said nor add words that it did not see fit to include….Unless we find that the statutory language is ambiguous, we need not look to legislative intent….We review the trial court’s interpretation of a statute de novo.

The Court had before it RSA 511:55, I relating to real estate attachments which provides that a real estate attachment expires six years from the time of rendering of judgment in the action in favor of the plaintiff on which he can take execution. The plaintiff attachment holder argued that the attachment period be extended because the plaintiff was unable, during a major portion of the six-year period, to execute his attachment because the defendant’s bankruptcy proceeding remained open. FAHGETABOUTIT! The Court held that the statute was unambiguous and although the statute did not expressly prohibit the extension of the period of attachment, "we will neither consider what the legislature might have said nor add words that it did not see fit to include."

The very extensive reach of New Hampshire’s long-arm jurisdiction statute was well demonstrated in The Lyme Timber Company v. DSF Investors LLC, opinion issued February 17, 2004. Here the circumstances showed that the defendant, a Massachusetts limited liability company, engaged in negotiations by mail with the plaintiff, a New Hampshire limited partnership with its principal place of business in New Hampshire, concerning the redevelopment of a Massachusetts factory building. The New Hampshire plaintiff had an office in Massachusetts and a preliminary agreement entitled, "Term Sheet," was signed by the defendant in Massachusetts. All negotiations were by phone, letter or e-mail and the defendant was never physically present here in New Hampshire. The parties fell apart and the defendant brought an action for declaratory judgment over the Term Sheet in Massachusetts. A long time transpired before service of that action was served upon the plaintiff. In the meantime, the plaintiff, without knowledge of the Massachusetts action, brought a New Hampshire action claiming jurisdiction under the New Hampshire long-arm statute for tortious misrepresentation (not an action based on breach of contract). The lower court denied the defendant’s motion to dismiss for lack of personal jurisdiction and the Supreme Court agreed in a sweeping, unanimous opinion by Justice Nadeau.

The Court first recognized that the plaintiff bore the burden of demonstrating facts sufficient to establish personal jurisdiction, but it pointed out that the "plaintiff need make only a prima facie showing of jurisdiction facts to defeat a defendant’s motion to dismiss." The Court then construed the State’s long-arm statute as permitting an exercise of jurisdiction to the extent permissible under the Federal Due Process clause, and held that

[A] court may exercise personal jurisdiction over a non-resident defendant if the defendant has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice….Jurisdiction can be ‘general,’ where the defendant’s contacts with the forum State are ‘continuous and systematic,’ or ‘specific,’ where the cause of action arises out of or relates to the defendant’s forum-based contacts….In this case, Lyme asserts that specific jurisdiction applies. Where specific contacts with the forum are the basis for personal jurisdiction, whether those contacts are constitutionally sufficient requires an analysis of the relationship between the defendant, the forum of the litigation….The inquiry focuses not only upon whether the defendant’s contacts might have caused injury in New Hampshire, but whether the contacts should have given the defendant notice that he or she should reasonably have anticipated being haled into court here.

On the subsequent issue of whether the defendant purposefully availed itself of the privileges and protections of New Hampshire law, the Court pointed out that the defendant’s physical presence in New Hampshire was unnecessary "as long as its contacts were ‘sufficient to have reasonably foreseeable consequences within the forum State.’" The Court found that this test was met as well:

‘The cornerstones upon which the concept of purposeful availment rest[s] are voluntariness and foreseeability’….Lyme’s complaint and affidavits establish that DSF embarked upon a course of negotiations with a counterpart based in New Hampshire. DSF’s contacts were voluntary and continued over an extended period of time. In fact, this was the second business dealing between the parties, the first having occurred when DSF contracted with Lyme to purchase a piece of property it needed in order to acquire the Necco building. We find that the nature and extent of DSF’s contacts with Lyme in New Hampshire, in furtherance of the proposed development deal, were constitutionally significant.

In the same vein, we find that it was foreseeable that any harm to Lyme in connection with the proposed deal would occur in New Hampshire. ‘It is settled New Hampshire law that a party commits, for jurisdictional purposes, a tortious act within the state when injury occurs in New Hampshire even if the injury is the result of acts outside the state’….The impact of those actions, however, must be more than fortuitous….Given that Lyme is based in New Hampshire and that DSF’s communications were directed to Lyme here, the alleged impact cannot be said to be fortuitous. Accordingly, we find that DSF purposefully availed itself of the privileges and protections of New Hampshire law.

It appears that any foreign corporation or individual dealing with a New Hampshire individual or business entity deals with a tar baby from which they can hardly escape being brought to account in the courts of New Hampshire, especially when an alleged tort against a New Hampshire domiciliary is alleged. The present status of the mat ter is that both the Massachusetts and New Hampshire actions are proceeding.

It’s relatively easy to carry a concealed gun in New Hampshire and, apparently, many people do. Yet, at least for now, a " pistol permit" is still required and the application procedure is governed by RSA 159:6, I-c. In Silverstein v. Town of Alexandria, opinion issued March 15, 2004, the Court had before it an interpretation of this statute which provides that a resident shall apply to the chief of police or selectmen of the town of which he is a resident or, if a nonresident, to the director of state police. The statute provides that the licensing authority shall issue a license if it appears that the applicant has good reason to fear injury to his or her person or property, or has any proper purpose, and "is a suitable person to be licensed." The applicant filed a permit application with the chief of police of the Town of Alexandria, but the applicant had multiple Massachusetts criminal offenses and the chief denied the application because "you are not a suitable candidate to carry a concealed weapon." The statute provides for an appeal to the district court and, on appeal, the district court found that the record supported the license denial stating that "[a]lthough the burden of proof at the hearing is placed upon the licensing authority, the initial burden of establishing suitability before the licensing authority rested with the applicant." The Supreme Court affirmed the lower court’s ruling that the applicant had the initial burden of proof of showing his suitability to carry a concealed weapon and that he had failed to meet his burden.

A father whose parental rights over his son were terminated was unsuccessful in urging the Supreme Court to "require the full panoply of constitutional rights that are afforded to a criminal defendant" in a termination case. In Re Juvenile 2003-195, opinion issued March 12, 2004. Here the probate court allowed into evidence the written report of a social worker who, since the report, had taken up residence outside the state and was not available for the termination hearing. The respondent father argued that the Confrontation Clause of the New Hampshire Constitution that provides that "[e]very subject shall have a right…to meet the witnesses against him face to face"1 applied and, thus, the termination order of the probate court was invalid. However, the Court adopted the reasoning of the Massachusetts Supreme Judicial Court2 which construed an identical confrontation clause in the Massachusetts Constitution and held that it did not apply in the proceeding to terminate parental rights. The New Hampshire Court quoted the Massachusetts Court’s reasoning: "that the unique characteristics of a termination of parental rights proceeding [do not] require incorporating the art. 12 right of face-to-face confrontation guaranteed to defendants in criminal cases."

In re Sandra H., opinion issued March 12, 2004, stands for the proposition that an individual who is involuntarily committed to the New Hampshire State Hospital is not entitled to a jury trial in the committal hearing since the right to a jury trial guaranteed by the New Hampshire Constitution applies only to those types of cases of which juries were required at the time of the adoption of the New Hampshire Constitution. The Court found that there was no evidence that jury trials were used in civil commitment proceedings at the time of the adoption of our Constitution in 1784 and the respondent had not so shown. On another issue in the same case, the Court held that the equal protection clauses of the state and federal constitutions were not violated by the automatic statutory waiver of the respondent’s physician/patient privilege even though in criminal cases the waiver of the physician/patient privilege is not automatic. The Court found no equal protection violation:

The differences between civil committees and criminal committees rationally justify the classification….A criminal committee, having been acquitted by reason of insanity, has already been subjected to a trial at which his or her mental illness was admitted or proven….In contrast, prior to involuntary civil commitment proceedings or hearings pursuant to RSA 135-C:27-:54, there may not have been any determination of mental illness of a person sought to be involuntarily committed.

A zoning variance case, Bacon v. Town of Enfield, opinion issued January 30, 2004, resulted in a 3-2 split Supreme Court with Chief Justice Broderick writing for the majority, and former Chief Justice Brock joining in a dissent of Justice Nadeau. Interestingly, the Chief Justice wrote for himself since Justices Duggan and Dalianis wrote a separate concurring opinion, which also concluded that the zoning board’s action should be upheld, but on an entirely different basis than the Chief Justice.

This whole case was a fractious hullabaloo about a 4' x 5½’ wooden shed attached to the plaintiff’s home, to house a propane boiler. The shed was constructed without a building permit and when a neighbor brought the boiler shed to the attention of the zoning board, the plaintiff sought a variance but the variance was denied. The Chief Justice’s opinion found that the plaintiff had not met the burden of proving all five elements necessary for the granting of a variance:

(1) the variance will not be contrary to the public interest; (2) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; and (4) substantial justice is done….(5)…the ZBA may not grant a variance if it diminishes the value of surrounding properties.

The Chief Justice concluded that the variance was not within the spirit of the ordinance (test 3 above), but the concurring Justices would find that the plaintiff had failed to demonstrate unnecessary hardship (test 2 above).

The two dissenters disagreed with the Chief Justice’s conclusion that the plaintiff’s "use violates the spirit of the ordinance, and because we believe that the special concurrence has misinterpreted the unnecessary hardship test" the dissenters would grant the variance, citing to the Simplex case3 in which the Court had tried "to make more reasonable the requirements" of the five prong variance test. This opinion seems to leave the law of variances very much up in the air despite the Court’s attempt in Simplex to liberalize the requirements for a variance.

Lawyers are frequently made the butt of jokes because their job is oft-times to present contrary positions. Even lawyers sometimes have a low opinion of themselves. In a recent criminal case, State v. Scognamiglio, opinion issued February 13, 2004, defense counsel argued in his closing argument that "[L]awyers can bicker over everything—anything pretty much forever. It’s what we’re trained to do; it’s what we’re paid to do." In response, the prosecutor later argued to the jury that "[T]here is a lot of talk about what lawyers do. They’re hired to bicker. They’re paid to bicker; they’re paid to argue. The State is here to do one thing, ladies and gentlemen. To seek justice." Defense counsel objected at these statements and at the prosecutor’s displaying a piece of paper containing the words "guilty" and "justice," arguing that the prosecutor was vouching for his case and impugned the integrity of defense counsel. Despite the apparently low opinion of lawyers by both sides, the New Hampshire Supreme Court found that the prosecutor’s closing argument did "not reveal that he stepped over the boundary of permissible advocacy."

Gutbier v. Hannaford Brothers Co., opinion issued February 13, 2004, is a very narrow-hearted view by the 3-2 majority of a split Supreme Court on the issue of whether a person injured may bring an equitable petition for discovery against the alleged defendant without first filing a writ. The defendant was injured in a classic slip and fall in a grocery store and brought an equitable petition in the superior court to obtain the defendant’s investigation file so that she could "better determine whether there was a justifiable basis for making a claim against the defendant." The trial court agreed, looking to RSA 498:1, which specifically gives the superior court the powers of a court of equity in cases of "discovery." The lower court concluded that the plaintiff’s action was a good faith attempt "to avoid making a claim for damages based only on the minimum amount of information that might satisfy the good faith standards for sanctions; plaintiff has, in effect, resisted the temptation to ‘sue first and ask questions later.’" A very laudable goal, in the author’s opinion. However, the majority of the Supreme Court, speaking through Chief Justice Broderick, took a very hidebound look at RSA 498:1 and ruled that the statute, when read as a whole: [the superior court has jurisdiction in cases of "discovery; cases in which there is not a plain, adequate, and complete remedy at law,"] required that there not be a plain and adequate remedy at law before an equitable petition for discovery could lie. Since the plaintiff admitted she could have filed a tort writ and then brought a motion for discovery, the majority held that there was such an adequate remedy of law and reversed the lower court. No so fast said the two justice minority, Justices Duggan and retired Chief Justice Brock. The dissenters correctly pointed to the clear delineation of RSA 498:1 in which the categories of cases over which the superior courts are given jurisdiction are clearly separated by a semicolon. Thus, they would read 498:1 to provide the superior court with the powers of an equity court in matters relating to discovery, without any burden of proving that there was not an adequate remedy at law:

A reading of the plain language of RSA 498:1 indicates that each word or phrase succeeding the phrase, ‘[t]he superior court shall have the powers of a court of equity in the following cases,’ is a separate category over which the superior court has jurisdiction. The semicolons between each category demonstrate the legislature’s intent to enumerate distinct instances where the superior court shall have equitable powers. Thus, under the plain language of RSA 498:1, one category where the superior court shall have powers of equity is ‘discovery,’ while another is ‘cases in which there is not a plain, adequate and complete remedy at law.’ In fact, the filing of a negligence action is a remedy at law to recover for alleged personal injuries, not to initiate discovery.

A major issue squarely before the Court in North Country Environmental Services, Inc. v. Town of Bethlehem, opinion issued March 1, 2004, was a State law preemption issue, specifically whether RSA 149-M relating to state regulation of solid waste management facilities preempted a town’s zoning ordinances, its site plan review process and its building permit requirements. The appellant had received a required State permit to construct and operate a solid waste management facility when the town stepped in by ordinance to prevent the expansion of the appellant’s existing landfill. The company appealed, stating that the town’s ordinance was preempted by the State waste management facility statute. The Court, speaking through Justice Dalianis, agreed that the ordinance was preempted by the State law:

‘The state preemption issue is essentially one of statutory interpretation and construction—whether local authority to regulate under a zoning enabling act…is preempted by state law or policy’….Preemption may be express or implied….Express preemption is not claimed here. Implied preemption may be found when the comprehensiveness and detail of the State statutory scheme evinces legislative intent to supersede local regulation….State law preempts local law also when there is an actual conflict between State and local regulation….A conflict exists when a municipal ordinance or regulation permits that which a State statute prohibits or vice versa….Even when a local ordinance does not expressly conflict with a State statute, it will be preempted when it frustrates the statute’s purpose….

….When the State has preempted the entire regulatory field, any local law on the subject is preempted, regardless of whether the terms of the local and State law conflict.

The Court went on to find that RSA 149-M "constitutes a comprehensive and detailed regulatory scheme governing the design, construction, operation and closure of sold waste management facilities. Such exhaustive treatment of the field ordinarily manifests legislative intent to occupy it."

The author’s reference in his last column to Joyce Kilmer’s syrupy poem, "Trees," evoked a response from a reader4 who sent along a parody of Kilmer’s poem which comprised the entire opinion of the three-judge Michigan Court of Appeals in Fisher v. Lowe.5 The case involved "a wayward Chevy" automobile which struck and injured a tree, the owner of which sued the defendant driver for his damages. The lower court granted judgment for the defendant and the Michigan Court of Appeals rendered its judgment thusly:

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.


  1. N.H. CONST. pt. I, art. 15.
  2. In Re Adoption of Don, 755 N.E.2d 72 (Mass. 2001).
  3. 145 N.H. 727 (2001).
  4. Susan R. Abert.
  5. 333 N.W.2d 67 (Mich.App. 1983).


Attorney Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, P.A., Portsmouth, New Hampshire.


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