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Bar Journal - Winter 2005

Lex Loci: A Survey of New Hampshire Supreme Court Decisions


Is it a violation of the law for you to call your neighbors with a "good samaritan" call, warning them of an approaching tornado or a dangerous animal that has escaped from the nearby zoo? Clearly, you would not think so. But see RSA 44:4, I (a), which provides that a person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the communication originated or was received, if such person "(a) Makes a telephone call, whether or not conversation ensues, with a purpose to annoy or alarm another...." (emphasis added). Now that wasn't exactly the situation before the Supreme Court in State v. Brobst, opinion issued September 9, 2004, but the State claimed that the statute was not overly broad and unconstitutionally vague, despite its apparent application to such good samaritan calls cited by the author. The case actually involved a defendant who was charged under the statute for telling the victim over the phone that "[Y]ou're a f-ing bitch and you're going to be a slut just like your mother." This was the sixth and final call that the defendant had made to the victim that particular evening and that was enough to get him before the superior court on the charge of telephone harassment in violation of this statute.

The defendant argued that the statute was unconstitutionally overbroad and vague. The trial court agreed, as did the Supreme Court, citing its possible application to the good samaritan type phone calls referenced by the author above. Finding support in other jurisdictions, the Court found "that the prohibition of all telephone calls placed with the intent to alarm encompasses too large an area of protected speech [citing to the good samaritan calls referenced above]. In each instance, the intent of the caller is to alarm the other person to prompt a desired course of action; however, even though the calls are made with the intent to alarm, they are, undoubtedly, legitimate communications."

In another interesting criminal law case, State v. Anthony, opinion issued November 30, 2004, the Court had before it whether someone could be convicted of "the crime of accomplice to negligent cruelty to animals." Indeed you can, said the Supreme Court affirming the lower court's jury trial conviction of the defendant of being an accomplice to negligent cruelty to animals under RSA 626:8. The defendant pointed out to the Court's earlier decision in State v. Etzweiler,1 in which a plurality of the Court found that a person could not be an accomplice to negligent homicide under RSA 626:8. The Court, in that earlier case, reasoned that it could not "see how [the accomplice] could intentionally aid [the principal] in a crime that [the principal] was unaware that he was committing." In response, the legislature amended the statute by providing that "to establish accomplice liability under this section, it shall not be necessary that the accomplice act with a purpose to promote or facilitate the offense. An accomplice in conduct can be found criminally liable for causing a prohibited result, provided the result was a reasonably foreseeable consequence of the conduct and the accomplice acted purposely, knowingly, recklessly, or negligently with respect to that result, as required for the commission of the offense."

The Court read the 2001 amendment "as a legislative rejection of the interpretation of the statute as stated by the plurality in Etzweiler" and in a later case,2 and reexamined its interpretation of the statute in this light. The Court held "[a]ccordingly, under our interpretation of RSA 626:8 as revised herein in light of the 2001 amendment, the crime of accomplice to negligent cruelty to animals exists under New Hampshire law."

A landlord and tenant case, RAL Automotive Group, Inc. v. Edwards,3 opinion issued November 30, 2004, is a good reminder concerning the intricacies of the law governing the termination of a lease. The landowner appealed the denial by the trial court of an earlier requirement imposed by the court that the tenant post an irrevocable letter of credit to serve as a security deposit under the lease. The trial court based its latest decision on the fact that the circumstances had since changed because the landlord had elected "to evict the current tenant and, thus, put an end to his rent stream." Not so fast said the Supreme Court, pointing out that when a tenant surrenders a lease by relinquishing possession of the premises, and the landlord accepts such surrender, the tenant is no longer liable for rent under the lease. But, "absent such intent [to accept surrender], however, repossession, and even reletting the premises to a third party, does not terminate the tenant's obligation to pay rent....The relationship of landlord and tenant and liability on the covenants in a lease are not dependent on each other....Thus, that [the landlord] would reacquire possession of the property upon evicting [the sublessee] would not necessarily relieve [the tenant] from its liability to pay rent under the lease."

Carignan v. New Hampshire International Speedway, Inc., opinion issued September 9, 2004, confronts an issue that drivers often face where another person voluntarily assumes a duty to direct traffic. The Court makes clear that in doing so, the person is required to act with reasonable care. Here, an employee of the International Speedway, in Loudon, standing beside the road, directed a motorist to make a left hand turn into the parking lot of the Speedway, which maneuver caused injury to the plaintiff who was a passenger on a motorcycle going in the opposite direction.

  • This court has acknowledged that one who voluntarily assumes a duty thereafter has a duty to act with reasonable care....Thus, one who gratuitously or contractually provides services 'may be liable to third parties for a foreseeable harm resulting from the breach of a duty of care'....[D]etermining whether a duty should be recognized in a signaling case is based upon 'a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties.'

The Court particularly stressed that the "Speedway was using its property...for commercial gain. In furtherance of this purpose, it placed [its employee] on its property to direct potential patrons...onto its property. The severity of the risk created by this activity is high, its occurrence likely and the burden upon the defendant to guard against it is slight."

Professional Firefighters of New Hampshire v. HealthTrust, Inc., opinion issued November 30, 2004, answers the question whether New Hampshire's Right-to-Know Law applies to the defendant, HealthTrust, which "is a non-profit New Hampshire corporation formed by an association of 322 governmental entities to provide general health insurance benefits for public employees under a pooled management risk program." The Court agreed with the trial court that HealthTrust is a public body subject to the Right-to-Know Law, holding that HealthTrust was "a quasi-public entity. HealthTrust exists as a distinct legal entity....provides products and services similarly supplied by private entities, and competes with private entities in the market for the sale of these products and services." Emphasizing the statutory Right-to-Know Law's objective of increasing public access to governmental proceedings, the Court held that "because HealthTrust performs the essential government function of providing insurance and pooled risk management programs to political subdivisions, we hold that it is subject to the Right-to-Know Law....To hold otherwise would create an anomaly in which the constituent political subdivisions of pooled risk management programs would be, in the same situation, individually subject to the Right-to-Know Law, but could avoid the law by forming an association [such as HealthTrust]."

Two recent probate law decisions are significant. In Re Estate of Treloar, opinion issued October 21, 2004, was a significant case deciding whether the respondents were pretermitted heirs under RSA 551:10. After executing a will in 1986 which left his estate first to his wife and then to his named children. The decedent, upon the subsequent death of his wife and daughter, Evelyn, executed a new will which did not name either the deceased daughter or her children, leaving his property to the respondent's five other children. However, the will did appoint as successor executor the decedent's son-in-law, the husband of his deceased daughter, Evelyn. The successor executor argued that this was a sufficient reference to Evelyn and, thus, to her children, but the Supreme Court disagreed. In a unanimous decision by Justice Galway, the Court first pointed out that "extrinsic evidence is inadmissible to determine whether RSA 551:10 applies....The court's task 'is not to investigate the circumstances to divine the intent of the testator; rather, it is to review the language contained within the four corners of the will for a determination of whether the testator named or referred to [the respondents],' citing the leading New Hampshire case of In re Estate of Came.4 The executor argued that the Court should read the two wills together and by doing so, would find the necessary reference to the pretermitted individuals, relying on In re Estate of Laura,5 where the Supreme Court had deemed "the reference to the father of the petitioning great grandchildren was a sufficient reference to the great grandchildren for the purposes of avoiding pretermitted child designation. The Court pointed out that In re Estate of Laura was an exception to "our general rule that 'the naming of one person, however closely related to another, without more is no reference to that other,'" and held that the In re Estate of Laura exception "applies only when the 'testator has a predeceased child who is neither named, referred to, nor a devisee or legatee under the testator's will' and the will 'names the next degree of issue in the line of descent.'" The Court then held that the exception did not apply here because "[w]hile Evelyn is a predeceased child who is neither named nor referred to, nor a devisee or legatee [under the later will], the [later] will does not name the next degree of issue in the line of descent. It names Evelyn's siblings as devisees under the will and appoints Evelyn's husband as executor. Such references are insufficient. They do not clearly evidence the testator's intent to disinherit either Evelyn or her issue."

A second probate case, In Re Estate of King,6 opinion issued September 9, 2004, is a second look by the Court of a lost will case. Earlier, the Court had remanded the case to theprobate court (King I)7 and, upon rehearing, the probate court found that "the defendant died intestate because the petitioner had failed to prove by a preponderance of the evidence that the decedent's will was more likely lost than destroyed." The petitioner, the widow and executrix of the decedent's estate, also appealed the award of attorney's fees to the respondents, who were the defendant's children by a first marriage. The Court "acknowledge[d] that the facts of this case did not overwhelmingly dictate a particular result. Nevertheless, because a reasonable person could decide as did the probate court based upon the evidence, we defer to the probate court's findings....Accordingly, based upon a review of the record, we hold that the probate court's finding that the petitioner failed to establish by a preponderance of the evidence that the will was more likely lost than destroyed is not plainly erroneous and could be reasonably made."

On the issue of attorney's fees, the Court reversed the trial court's award of attorney's fees to the respondents stating that the issue is

  • whether the respondents' primary motive was to benefit the estate as a whole or themselves....

    Here, the respondents were seeking to defeat a will offered for probate that excluded them as beneficiaries. If the respondents defeated the will, they would benefit from the estate passing according to the intestacy statute. We thus conclude that the respondents challenged the will for their own benefit and not for that of either the estate or the court.

In an "Alice in Wonderland" insurance policy coverage case, Mark Dewyngaerdt d/b/a Superior Tree Service v. Bean Insurance Agency, Inc., opinion issued September 2, 2004, the Court had before it an action against a defendant insurance agency that assisted a tree company in procuring an insurance liability policy. The policy excluded coverage for "wrongful cutting" of trees, even though the tree company described to the insurance agent that its business "consisted of cutting trees and limbs on the property of third parties," and it specifically requested a policy that would provide "full coverage."

It would seem to most readers that the agent acted negligently procuring a liability policy for a tree cutting company which did not cover wrongful tree cutting, but, in an Alice in Wonderland world where black is white if one says it is white, the Court ruled that it was not sufficient for the tree cutting company to have requested "full coverage" for its operations:

  • An insured must make a specific request for a particular type of insurance coverage in order to impose a duty upon an agent to procure that particular coverage or to inform the insured that such coverage is excluded. We decline to impose a duty on insurance agents to know all an insured's needs, to procure suitable coverage, and to inform an insured of every facet of the coverage based only upon an insured's broad, general request for 'full coverage.'

Thomas v. The Telegraph Publishing Co., opinion issued September 24, 2004, is another example of the broad sweep of our Supreme Court's interpretation of the personal jurisdiction that New Hampshire exercises over non-residents. This is an action alleging defamation, libel and slander, and four of the defendants were from Massachusetts. They had been quoted in an article in The Telegraph, but only after being contacted in Massachusetts by the authoring reporter. These four filed motions to dismiss, alleging lack of personal jurisdiction. They accompanied their motion by affidavits stating that they were residents of and employees in Massachusetts and owned no property in New Hampshire, and sought to have the action against them dismissed for lack of personal jurisdiction. The Supreme Court, speaking unanimously through Justice Nadeau, first pointed out that the plaintiff bore the burden of demonstrating facts sufficient to establish personal jurisdiction, but pointed out that "he need make only a prima facie case of jurisdictional facts to defeat a motion to dismiss." The trial court had denied the motions to dismiss and the Supreme Court agreed with the trial court on this issue, stating that the plaintiffs had met their burden under the New Hampshire long arm statute and the federal due process clause under the particular facts of this case:

  • Four of the defendants are residents of the neighboring Commonwealth of Massachusetts; four are from New Hampshire. The lawsuit is being heard in a county bordering Massachusetts. While defending a lawsuit may impose a burden upon any defendant, we find little additional burden caused by requiring the Massachusetts defendants in this case to appear in New Hampshire. Moreover, because the defendants are from both New Hampshire and Massachusetts, we are reluctant on the record before us to dismiss the Massachusetts defendants, thereby creating the possibility of duplicative litigation. Given New Hampshire's 'strong interest in providing a forum for its residents to redress injuries they suffer here,'....we conclude that the Massachusetts defendants' burden in defending this case is outweighed by the State's interest in adjudicating it, the plaintiff's interest in obtaining convenient and effective relief, and the interest of the interstate judicial system in obtaining the most efficient resolution of controversies.

What would happen if the Supreme Court were asked to decide a case but all current and retired Supreme Court Justices were asked to recuse themselves because they were involved in issuing the administrative order under appeal? This was the question in Lorenz v. NH Administrative Office of the Courts, opinion issued September 30, 2004. The petitioners were court stenographers who sought a declaration that the Administrative Office of the Courts be "equitably estopped from firing them except for good cause based only upon poor job performance or misconduct." The challenged order would eliminate the court stenographers positions and was issued pursuant to the court's struggle to meet its budgetary restrictions. The petitioners contended that the Court "is ethically barred from adjudicating a legal challenge to action it took pursuant to its constitutional duty to administer the courts....In essence, they assert that the court's dual roles as administrator and adjudicator compel disqualification."

The Court disagreed, pointing out "[n]othing in the Code of Judicial Conduct requires our recusal on this basis....Courts in other jurisdictions have routinely declined to recuse themselves merely because a litigant challenges a court directive."

The Court concluded that it could properly decide the case and recusal was not required:

  • Recusal on this ground is not required particularly because we have not yet opined as to whether Administrative Order 2004-02 is valid. 'The fact is that our promulgation of the [administrative order] is not a prior determination that it is valid....That determination must await adjudication in this or a future case'....If we 'were required to a kind of advisory opinion and without the aid of briefing and argument' that every administrative order we adopt 'is valid from every standpoint,' administration of the court 'as provided in the Constitution would effectively cease.' Nor is recusal required merely because the petitioners have named the court as a party. 'A judge cannot be disqualified merely because a litigant sues or threatens to sue him or her'....Recusal is particularly inappropriate on this basis where, as here, the court is named as a party solely because it issued the relevant administrative order, and the petitioners do not allege any personal bias or interest on the part of any individual court member....

State v. Moran, opinion issued October 21, 2004, confronted the issue whether the defendant who operated a siding company was sufficient a rascal8 to be convicted of violating the New Hampshire Consumer Protection Act, RSA Chapter 358-A. The defendant was certainly not Mother Teresa. He first agreed to install siding at the home of a consumer for a total price of $6,800, $2,800 to be paid before he began the job. The work was to be performed some months hence. However, the defendant next called the consumer asking to do the work early. He promised to deliver the needed materials that day, and asked for the remaining portion of the deposit before the work could be begun. The customers agreed and the defendant came by to pick up the check, the check was cashed that day, but the materials promised for delivery that day never arrived nor did the defendant ever do the job, the defendant claiming one excuse after another. The Consumer Protection Act "proscribes unfair or deceptive trade practices in general, and sets forth a list of specific types of conduct that qualify as unfair or deceptive trade practices....The trial court found that the defendant's conduct did not fall within any of the enumerated categories under the CPA, but rather fell with the general prohibition barring unfair or deceptive trade practices," and affirmed the defendant to criminal conviction of violating the Act.

The unanimous Supreme Court looked to Federal Trade Commission guidelines in interpreting the application of the Act and applied the "rascality test,"9 under which "[t]he objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce," citing to an earlier decision of the Court in a civil case, Milford Lumber Co.10 In this criminal case, the Court held that the rascality test applies equally to the analysis of civil and criminal cases and found that the defendant's conduct had reached a sufficient degree of rascality to support his criminal conviction of violating the Consumer Protection Act:

  • The defendant acted with a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce....It would be harmful for commerce in New Hampshire to condone such unethical and unscrupulous activity. The legislature promulgated the CPA to protect consumers from this type of activity....We conclude that the allegations of misrepresentation against the defendant support a claim of unfair or deceptive trade practices under the CPA.


  1. 125 N.H. 57 (1984)
  2. State v. Locke, 144 N.H. 348 (1999).
  3. The author's firm represented a party to the action and, therefore, the author's views may be colored.
  4. 129 N.H. 550 (1987).
  5. 141 N.H. 628 (1997).
  6. The author was personally involved in this case. Therefore, his views may be colored.
  7. In Re Estate of King, 149 N.H. 226 (2003).
  8. See Ambrose Bierce, The Devil's Dictionary, 144 (1991), where rascal is defined as follows: "Rascal, n. A fool considered under another aspect."
  9. See Ambrose Bierce, The Devil's Dictionary, 144 (1991), which defines "rascality" as follows: "Rascality, n. stupidity, militant, the activity of a divided intellect."
  10. 147 N.H. 15 (2001).

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