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Bar Journal - Fall 2004

Lex Loci: A Survey of New Hampshire Supreme Court Decisions


The New Hampshire Supreme Court has again attempted to wrestle to the ground that many-headed hydra: the requirements for a zoning variance. These requirements have more "prongs" than Carter has liver pills (or, to contemporize the phrase, "than Intel has chips"). As Attorney Peter Loughlin, New Hampshire’s leading scholar in the area of zoning, has accurately stated about the basic statutory framework for establishing the requirements for a zoning variance, "it is probably safe to say that no single statutory provision has been the source of more litigation….or more misunderstanding."1 In Boccia v. Portsmouth, opinion issued May 25, 2004, our newest member of the Supreme Court, Justice Galway, described the law of variances in an understatement as this "often convoluted area of the law." But, being new to the Court and perhaps naïve, he promptly set out to untie this gordian knot. His effort, for a unanimous Court, while perhaps not ending this controversy forever, certainly sets forth a welcome and clear framework of the requirements for the granting of a variance.

The key focus of Boccia was the statutory requirement that a literal enforcement of the zoning ordinance must result in an unnecessary hardship. The Court first distinguished between use variances and area [or nonuse] variances. In Boccia, a use variance (one in which the applicant seeks a use of the property which the zoning ordinance prohibits) was not before the Court, but the question involved "nonuse variances" which authorize deviations from area restrictions which relate primarily to property setbacks. The Court’s breakthrough was that in meeting the unnecessary hardship test, if a use variance is sought, the three requirements set forth in the Simplex Case2 applied, but where an applicant was seeking an area or nonuse variance, a new two-part test was established to meet the unnecessary hardship rule. Now, an applicant seeking a nonuse variance must show: "(1) an area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property; and (2) the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance."

The clear framework set forth by the Boccia Case, for a unanimous Supreme Court, will certainly make easier the tasks of municipal zoning boards when confronting these thorny issues, many of which involve hundreds of millions of dollars. However, knowing and appreciating the work that lawyers do for their clients, the author wouldn’t bet "a plugged nickel"3 that this decision is the last word on this knotty issue.

Arcidi v. Town of Rye, opinion issued April 5, 2004, is a wonderful case for those who revel in the nuances of property law. Here the issue was the appropriate use of an "easement in gross" or an "easement appurtenant" which the Court described thusly:

An appurtenant easement is a nonpossessory right to the use of another’s land….It creates two distinct estates—the dominant estate, which is the land that benefits by the use of the easement, and the servient estate, which is the land burdened by the easement….An appurtenant easement is incapable of existence separate and apart from the dominant estate….The benefit of an appurtenant easement ‘can be used only in conjunction with ownership or occupancy of a particular parcel of land.’

Such ancient terms send a tingle down the spine of a true property law devotee. Here, the main issue was whether or not the Town of Rye, which held an easement over the land of the plaintiff, which was described as "an easement and right of way….to pass and repass and for ingress and egress by motor vehicle, foot and otherwise" could construct a water utility line below the surface of the road, which it had in fact constructed over the easement area. The court ruled that such an easement was an appurtenant easement and not an easement in gross and the Town could not construct the underground pipeline because of the clear and ambiguous language of the deed. The Court also took note of the fact that the history of the granting of the easement showed that it was intended not for utility purposes, but for secondary access purposes to the dominant tenement. Since the Town did not have the right to do what it had already done, the Court upheld the trial court’s finding that the Town’s action was an inverse condemnation which "occurs when a governmental body takes a property in fact but does not formally exercise the power of eminent domain." The owner of the subservient tenement, the plaintiff, was therefore entitled to damages.

The Blackthorne Group, Inc. v. Pines of Newmarket, Inc., opinion issued April 21, 2004, stands for the simple proposition that a real estate broker licensed outside of the State of New Hampshire, but not licensed in New Hampshire, cannot recover in New Hampshire courts a claimed real estate broker’s commission for a sale in New Hampshire, brokered by it, since RSA 331-A requires a New Hampshire broker’s license in such a situation. See also Colton v. Manchester Savings Bank,4 where the author argued many years ago successfully for the same proposition. As Yogi Berra was reported to have said, "if you live long enough, it’s deja vu all over again."

A seminal legal malpractice case was decided by the Court on August 30, 2004, Carbone v. Tierney. Several important principles were established in this case of first impression regarding legal malpractice actions. First of all, all of the Justices agreed that the defendant attorney’s conduct was "egregious"5 and "demonstrated a fundamental lack of knowledge about the Federal Rules of Civil Procedure and about the remedies available when a case is dismissed in both federal and state court." The Merrimack County jury certainly agreed, awarding the client almost $200,000 compensation for the damages he suffered. The Court first clearly established the standards for proving legal malpractice:

To establish legal malpractice, a plaintiff must prove: (1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach.

Accepting these guidelines, the defendant attorney first argued that it was a requirement in a legal malpractice action that the third prong, causation, be proved by expert testimony. On this important issue, the Supreme Court majority agreed and held "that expert testimony on proximate cause is required ‘in cases where determination of that issue is not one that lay people would ordinarily be competent to make.’" But the Court split on the question whether the defendant’s conduct was so bad as to be an exceptional circumstance that expert opinion would not be required. The majority, speaking through Justice Duggan, held that although the conduct was egregious, the case was sufficiently complicated to require expert testimony with respect to causation. Justice Nadeau in dissent was scathing, describing the defendant attorney’s conduct as "the equivalent of a surgeon leaving a sponge inside a patient," and with a deft literary illusion quoted Shakespeare’s Hamlet to the effect that "There needs no ghost, my lord, come from the grave to tell us this."

Two other important issues were involved in the case. Was the collectibility of the damages an issue that could be raised by the defendant attorney? The Court held that collectibility was an issue that the jury could consider, but adopted the reasoning of a minority of jurisdictions and held that "in a legal malpractice action, noncollectibility of the underlying judgment is an affirmative defense that must be proved by the defendant."

Finally, the defendant argued that the award against her should be reduced by the amount of the contingent fee to which the client had agreed. The Court reviewed the conflicting positions on this issue and held that, "in a legal malpractice action, the verdict should not be reduced to reflect the amount of a contingency fee agreement," since the plaintiff client would have to pay another attorney to pursue the malpractice action. The author thinks the majority’s reasoning is correct in all respects except he would agree with Justice Nadeau in dissent that the defendant’s conduct [which was almost inconceivable] was clear enough so as to negate the need for an expert witness.

The ski operators' liability immunity act enacted in the early days of the development of the skiing industry in New Hampshire, RSA 225-A:24, I, is one of the few examples in New Hampshire of liability waiver laws which are generally disfavored in our state. Sweeney v. Ragged Mountain Ski Area, Inc., opinion issued July 15, 2004, raised the question whether the ski operators’ immunity grant which applies against those who participate in the "sport of skiing" applied to a paying client who is injured at a ski area when snow tubing down an exclusive snow tube slope or trail. The Supreme Court looked at the issue as one of statutory interpretation and applied the traditional rules that statutes in derogation of common law are to be interpreted strictly and held that nothing in the policy provisions of the statute "clearly expresses the legislative intent to extinguish the common law claims of snow tubers injured on a track designed solely for snow tubing." Don’t be surprised when the ski industry lobbies for a broadening of the immunity law in the next session of the legislature.

Letarte v. West Side Development Group, LLC, opinion issued July 23, 2004, takes the reader into the realm of contract law, and more specifically the law relating to the anticipatory breach of a contract. Confronted with the situation where the defendant, a party to the contract with the plaintiff, had repeatedly failed to make several early installment payments provided for under the contract and in another respect the same party had totally made it impossible for it to perform another part of the contract, the Court came down hard, stating the defendant had anticipatorily breached the contract and the plaintiff, therefore, had a right to maintain suit immediately to obtain all of his damages:

An anticipatory breach of a contract occurs when a promising party repudiates his obligations either through words or by voluntarily disabling himself from performing them before the time for performance….In instances of anticipatory breach, the non-breaching party has the option to treat the repudiation as an immediate breach and maintain an action at once for the damages.

On the issue that the defendant had breached the contract by conveying to a third party the lot that he had promised to convey to the plaintiff, the Court held that the plaintiff could seek recovery immediately for that breach also, stating that

When one party voluntarily puts it out of his power to perform, it is a breach that gives rise to an immediate cause of action….'It has always been the law that where a party deliberately incapacitates himself or renders performance of his contract impossible, his act amounts to an injury to the other party, which gives the other party a cause of action for breach of contract….' By selling the house lot to a third party and making performance impossible, the defendant is in immediate breach of paragraph two.

The constitutional office of high sheriff is a little less high as a result of the Supreme Court’s decision in Linehan v. Rockingham County Commissioners, opinion issued July 16, 2004. In this case, the Rockingham County’s high sheriff filed a petition for declaratory judgment asserting that the Rockingham County Commissioners had impermissibly interfered with his constitutional, statutory and common law authority to administer the county sheriff’s department. In a word, the sheriff lost, the Supreme Court ruling unanimously that, except for a policy, procedure or action instituted by the commissioners which directly interferes with the sheriff and his deputies’ performance of their law enforcement duties, the sheriff had "to comply with…county-wide policies and procedures relating to budgetary control, financial reporting and internal financial controls, the line-item transfer policy, the payment of wages and benefits…and the authority to purchase goods and services for the…department." This definitive ruling should end a festering relationship which resulted in "long-standing disagreements between the sheriff and the commissioners on issues relating to county governance and the management of county financial affairs."

In an important constitutional ruling, New Hampshire Motor Transport Association v. State, opinion issued April 19, 2004, the Court narrowly interpreted the 1938 New Hampshire Constitutional provision (Part II, Article 6-a) that mandates that all revenue for motor vehicle operations should be used exclusively for "the construction, reconstruction and maintenance of public highways within this state, including the supervision of traffic thereon." The issue was whether some of these revenues could be used for a rails project to relieve highway congestion. The Supreme Court held that the language of the Constitutional provision and its legislative history when it was considered made clear that the intent of the amendment was to "prevent motor vehicle fees and taxes from being siphoned away from highway uses," and there was no evidence that the constitutional provision contemplated that the "public highways" of the state encompass the state rail system.

The Supreme Court, in three important decisions concerning the practice of law for all of New Hampshire’s lawyers, jealously guarded its prerogatives as a third branch of government from encroachment by the legislative and executive branches. In Petition of New Hampshire Bar Association, opinion issued June 14, 2004, the Court invalidated the legislation mandating a note on the unification issue by New Hampshire bar members, passed by the legislature in 2003 (RSA 311:7-g to :7-i), holding that the legislation was unconstitutional as an impermissible encroachment upon the prerogatives of the judicial branch of government:

We conclude, consistent with our prior decisions, that the judicial branch of government retains ultimate authority to regulate the practice of law, and that in the exercise of that authority it is necessarily permitted to determine whether unification of the Bar is advantageous. The authority of the judicial branch is not the result of legislative inaction as suggested by the State, but is derived from its inherent authority to regulate the practice of law….(‘The power and authority of the supreme court to supervise and regulate the practice of law has been recognized and acknowledged from an early date by custom, practice, judicial decision and statute."). In so holding, we conform to our precedent and share the view of other jurisdictions.

In Petition of the Judicial Conduct Committee, opinion issued June 14, 2004, the Court had before it the 2003 legislative attempt to establish its own judicial conduct committee, RSA 494-A. Again, the issue was whether this statute was unconstitutional as violating the principle of separation of state and the Supreme Court agreed:

…the power to regulate the conduct of judges, including the authority to take disciplinary action short of removal, is a judicial power….That power is neither expressly granted to the legislature by the State Constitution, nor necessary for it to conduct efficient impeachment or address proceedings. Thus, it is not an ‘overlapping’ power that is shared by the legislature, but rather, is exclusive to the judiciary.

To the extent, therefore, that RSA chapter 494-A purports to authorize the Commission to impose disciplinary action on judges, we find, on inescapable grounds, that it is unconstitutional.

In a case earlier commented upon by the author, Petition of the Governor and Executive Council, opinion issued April 28, 2004, concerning the action of the legislature in 2003 designating the manner in which the Chief Justice of the Supreme Court was to be appointed (upon a vacancy, the senior justice was to serve for a period of five years), a specially appointed court made up of a retired supreme court justice and four retired superior court judges upheld the prerogatives of the Governor and Council of the State of New Hampshire to appoint the Chief Justice, finding the legislation to be an improper encroachment upon the exercise of the executive branch of the government to appoint all judicial officers. N.H. Const. pt. II, art. 46. The Court also found that the legislation impermissibly encroached upon the judicial branch’s prerogatives under the separation of powers as well the executive branch’s power to appoint judicial officers:

There is no dispute that the constitution explicitly reserves the power of appointment of all judicial officers to the executive branch. N.H. Const. pt. II, art. 46. Nor can it be disputed that the chief justice is a judicial officer. To say otherwise defies logic, reason and tradition. While there is nothing in the constitution that specifically creates or defines the office of chief justice of the supreme court, the position is assumed to exist as evidenced by Articles 40 and 73-a. Similarly, there is nothing in the United States Constitution which specifically sets out a citizen’s right of privacy. Yet, that right is now deeply rooted in federal constitutional law. Like the right of privacy under the federal constitution, the traditional appointment of the chief justice by the governor and council for over two hundred years has effectively rooted that power in our state constitution.

In the 60’s and the 70’s, the Union Leader, playing to its long time, jingoist tradition under William Loeb, repeatedly urged New Hampshire citizens to "fly the flag," implying that only a traitor would fail to do so. Many citizens proudly did so, and continue to do so, including the author. However, Summa Humma Enterprises, LLC v. Town of Tilton,6 opinion issued May 24, 2004, is an extreme example of "flying the flag." Here, a business selling tractors wanted to erect on its new facility, a lighted, 90-foot flag pole (40 feet higher that the highest permissible building height allowed in the town), from which the applicant proposed to fly a 960-square-foot flag!! That would appear to make the flag about 40 feet long by 24 feet wide!! It was described by one concerned citizen as bigger than many homes in the town.

In the site plan approval process, the applicant could not answer many of the issues raised by those opposing the applicant’s plan, such as the sound that would be created by the flag flying in a stiff breeze [a sonic boom?], safety concerns about pole and icing on it [an avalanche?], and the improper use of the flag for advertising [flag desecration?], since the applicant stated that the flag was part of his attempt "to develop a brand presence" at his new location. The planning board approved the proposal, although it limited the height of the flag pole to 50 feet, the same height restriction for buildings. The plaintiff appealed. The Supreme Court upheld the action of the superior court in ruling that the plaintiff applicant had failed to meet his burden of proof of showing that the board’s decision was unreasonable or unlawful.

In the current patriotic craze of the ubiquitous flag lapel pin and innumerable automobile flags, will we see in New Hampshire a "wave" of huge flags flying on towering poles similar to the cell phone tower craze that has hit our state? Since the ordinances of most towns are hardly adequate to deal with these types of issues which often involve patriotic fervor, don’t bet on not seeing a lot more of these "high rise," behemoth banners arising over our New Hampshire landscapes. Perhaps every New Hampshire patriot desiring to show the flag should be forced to chose only one among the following: either (1) one flag lapel pin no bigger than the lapel on which it is worn, or (2) a pair of automobile flags both of which can be no bigger than the auto flying them, or (3) a flag and flag pole no bigger or taller than the building from which it flies?!!

The author confesses to a mistake in his last column in which he misattributed to Chief Justice Broderick, an opinion which he curmudgeonly described as "narrow hearted," when it more properly belonged to another Justice. This mea culpa gives the author the opportunity to say that in the 35 years he has been writing this column, having been encouraged to do so by Chief Justice Frank Kenison many, many years ago, he has had the rare privilege of commenting upon, and dissecting, with the benefit of hindsight, opinions issued by the New Hampshire Supreme Court. In all that time, despite the author’s sometime purple prose and occasional sharp criticism, no Justice of the Supreme Court has ever sought to change or influence the content of this column. [Of course, the author admits that it is always possible that the members of the Court don’t even read the column!!]. The author has always tried to make the column interesting and humorous enough to read, while still celebrating the true genius of our New Hampshire common law and its unique setting here in our small, libertarian state. The author has always tried to be respectful of our wonderful common law heritage and the bench and bar of our state and our under appreciated New Hampshire court system. We certainly live in a wonderful state where this sort of privilege is possible for here we are admonished to "Live Free or Die."


  1. P. Loughlin, N.H. Practice, Land Use Planning and Zoning, Section 2402 at 294. (3 Ed. 2000).
  2. Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001).
  3. A plugged coin was a counterfeit or had in it an insertion of inferior metal. Chapman, American Slang, 361 (2d Ed. 1998).
  4. 105 N.H. 254 (1964); to paraphrase Pete Seeger, "where have all the banks gone?"
  5. "Conspicuous for bad quality," Webster’s New Collegiate Dictionary, (2nd Ed. 1953).
  6. The author’s firm represented a party to the action and, therefore, the author’s views may be colored.


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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