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Bar Journal - June 1, 2003

Lex Loci: A Survey of New Hampshire Supreme Court Decisions


The decision making output of the supreme court remains extraordinarily high. In the author’s personal experience, in a fairly complicated case, the opinion was issued only 51 days after the case was argued this past January 14, 2003. Clients and all of our citizens who have cases in our courts are applauding the tremendous effort being made by our court, not only to reduce the time that appellate cases take to reach conclusion, but also to familiarize our citizens with the workings of the court by its travels throughout the state to hear arguments before students and citizens at large.

The incremental growth of our common law, judicial decision by judicial decision, is a truly astounding phenomenon. A recent example is Graves v. Estabrook, an opinion issued March 3, 2003, which deals with the very important issue of liability for the negligent infliction of emotional distress where the plaintiff was not related by blood or marriage to the decedent, but was the decedent’s fiancée. This case involves the scope of a tortfeasor’s liability for injuries to bystanders. The facts showed that the plaintiff was engaged to the decedent and cohabited with him for seven years immediately preceding the accident which occurred when the decedent was riding his motorcycle while the plaintiff followed immediately behind him in her automobile. The defendant’s vehicle failed to yield at a stop sign and collided with the decedent and, as the plaintiff looked on, the decedent flipped over the hood of the defendant’s car and landed on the pavement in front of the plaintiff. The plaintiff stopped her car and ran to her fiancée. He had blood running from his mouth and he had significant trauma to his head and died the next day. The plaintiff alleged that as a result of witnessing the collision and the death of her fiancée, she suffered shock, severe mental pain and emotional distress. The lower court dismissed her complaint since she was not related to the decedent by blood or marriage, but by a 3-2 majority, the supreme court advanced our common law of torts by recognizing for the first time bystander liability to an individual not related to the injured party. The majority opinion written by Justice Duggan first recognized that New Hampshire had never adopted the requirement that a physical impact must have been sustained by the plaintiff in order to recover, but admitted it had not addressed the required bystander relationship issue. The majority relied on its earlier decision in Corso v. Merrill,1 which applied traditional negligent analysis of foreseeability in bystander situations. The court reviewed at length the history of such actions in other courts and adopted the reasoning of the New Jersey Supreme Court which rejected a bright line rule and concluded, in the words of the New Jersey Supreme Court that

to foreclose [an unmarried cohabitant] from making a claim based upon emotional harm because her relationship with the injured person does not carry a particular label is to work a potential injustice…where the emotional injury is genuine and substantial and is based upon a relationship of significant duration that…is deep, lasting and genuinely intimate.

The majority went on to hold that whether a relationship between plaintiff and decedent is sufficiently close, i.e., a "relationship that is stable, enduring, substantial, and mutually supportive…cemented by strong emotional bonds and provid[ing] a deep and pervasive emotional security," depends upon many different factors which the jury must address in making its decision.

The minority decision offered by Justice Dalianis would opt for the bright line test and would "restrict the class of plaintiffs who may recover under this cause of action to those closely related to the victim by the objective criteria of blood or marriage."

Remsburg v. Docusearch, Inc., an opinion issued February 18, 2003,2 is a case of significance in which the supreme court answered several questions certified by the United States District Court for the District of New Hampshire. The case involved privacy issues under New Hampshire common law and the Consumer Protection Act, RSA 358-A. The grisly facts showed that the plaintiff New Hampshire female decedent died as a result of being stalked and killed by another New Hampshire resident. The killer used the services of the defendant internet-based investigation and information service based in Florida to locate his victim. One of the individual defendants, owner of the corporation, was a private investigator, licensed by both the State of Florida and Palm Beach County, Florida.

The court had before it five important questions about the liability of individuals in the investigation and search business. It first recognized the seriousness of the crime of stalking:

[It] is undisputed that stalkers, in seeking to locate and track a victim, sometimes use an investigator to obtain personal information about the victims….Public concern about stalking has compelled all fifty states to pass some form of legislation criminalizing stalking. Approximately one million women and 371,000 men are stalked annually in the United States….Stalking is a crime that causes serious psychological harm to the victims, and often results in the victim experiencing post-traumatic stress disorder, anxiety, sleeplessness, and sometimes, suicidal ideations….Not only is stalking itself a crime, but it can lead to more violent crimes, including assault, rape or homicide.

A very clear and concise unanimous opinion authored by Justice Dalianis broke new ground in New Hampshire of our laws involving invasions of privacy or "intrusions upon seclusion." The court, on the issue of the disclosure of personal information, ruled that:

The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person’s personal information to a client. And we so hold. This is especially true when, as in this case, the investigator does not know the client or the client’s purpose in seeking the information.

On the other hand, the court ruled that since a person’s work address is readily observable by members of the public, the address itself cannot be private and no action for intrusion upon seclusion can be maintained for disclosure of that information.

The court next proceeded to recognize the tort of invasion of privacy by appropriation of an individual’s name or likeness, and adopted the Restatement (Second) Torts, § 652C and quoted approvingly from a federal case3 as follows:

Tortious liability for appropriation of a name or likeness is intended to protect the value of an individual’s notoriety or skill. Thus, the restatement notes, in order that there may be liability under the rule stated in this section, the defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness. The misappropriation tort does not protect one’s name per se; rather it protects the value associated with that name.

Finally, the court held that the Consumer Protection Act, RSA 358-A, covers pretext phone calls. "Pretext phone calling has been described as the use of deception and trickery to obtain a person’s private information for resale to others" and the court held "that an investigator who obtains a person’s work address by means of pretextual phone calling, and then sells the information, may be liable for damages under RSA chapter 358-A to the person deceived."

A recent decision involved a situation encountered much more frequently than in the past by estate planning attorneys: a lost will. In "olden times," an original important document, such as a will, was treated with great care. However, with the deluge of paper that clients now receive, particularly multiple copies of almost every pleading, document and letter, however significant or insignificant, clients have grown less careful of just what is important and what is not. As a result, probate practitioners are confronted more frequently now than earlier with situations where a client has died and no one knows where the original of his will is, although often the client has a copy and the lawyer has a copy and even sometimes beneficiaries or the nominated executor have a copy, but no one can locate the original.

Such was the situation confronting the court in In Re Estate of King,4 an opinion issued on March 6, 2003. The case involved a spouse who offered for probate a copy of a will of the deceased spouse which left the entire estate to her (with gifts over to all children of the decedent in the event she predeceased her husband), together with an original codicil to the will which expressly republished the will but which made only minor changes to the will. There was uncontested testimony that the petitioner’s marriage to the decedent had suffered its ups and downs. The children of the decedent by a former spouse opposed the probate of the copy of the will and after a hearing, the probate court declared the decedent to have died testate, relying upon the presumption of revocation where a will in the possession of the testator is lost and ruled that the proponents had not overcome presumption.

The supreme court reversed the probate court and substantially clarified the law in the troublesome area of lost or misplaced wills. The court began by rejecting the spouse’s argument that the codicil, which specifically republished the will, was sufficient by itself and that this was not a lost will case at all since the original codicil was available and offered for probate. Rather, the court adopted the reasoning of an American Jurisprudence Second5 which, upon the question of whether a revocation of the will revokes the codicil, stated the general rule as follows:

[W]here a codicil is of such a character that it may stand independently of the will, the revocation of the will does not affect the codicil. If, however, a codicil is not so complete a testamentary instrument as to stand alone, the revocation of the will to which it is appurtenant automatically revokes it.

Since the codicil in this case made only a few minor amendments to the will, the court applied the rule as stated and rejected the spouse’s proponent’s arguments.

The court next rejected the spouse’s argument that the codicil incorporated the earlier will by reference. Although the court found that the requirements for incorporation by reference were met, the doctrine did not apply to this case since the codicil was not an independent testamentary instrument equivalent to the will that it amends. The spouse was finally successful on the issue of the presumption of revocation. The court first ruled that the trial court had misinterpreted the application of the presumption and held that "the presumption vanishes because there was evidence to the contrary. The existence of the 1997 codicil and copy of the 1994 will alone was legally sufficient to rebut the presumption [emphasis added]."

Finally, the supreme court ruled that the trial court erred in admitting the "double hearsay" testimony of three adult children regarding a conversation they had with the decedent’s accountant that their father had told him (the accountant) that he had made provisions for them under his will. The court remanded the case to the probate court for proceedings consistent with its opinion.

Appeal of Taylor Home, an opinion issued January 27, 2003, is a lesson in how not to appeal the denial of a charitable property tax exemption under RSA 72:34-a. The not-for-profit plaintiff filed two petitions (against each municipality in which the taxpayer’s property was located) before the New Hampshire Board of Tax and Land Appeals (BTLA) by the required deadline, but the petitions claimed that the municipalities had failed to properly assess the value of the plaintiff’s property by failing to take into account life care contracts and other charitable obligations which encumbered the property and lowered its value. Each petition referred to the plaintiff as a not-for-profit organization and checked a box that the property was "tax exempt" but did not specifically appeal the municipality’s failure to grant a charitable tax exemption. Rather, the confusing petitions appealed the municipality’s failure to abate taxes as a result of an erroneous assessment and the court rejected the argument that the petitions were sufficient appeals of the charitable exemption denial. The taxpayer next argued that the court’s traditional liberal approach to court pleadings should apply to the rules of this administrative proceeding. "FAHHGETABOUTIT!!" said the supreme court, stating that whatever the petitioner’s intent was, the record showed that it had not appealed the charitable exemption denial by the required date and, thus, the BTLA had no jurisdiction over the appeals. What a terrible setback for the petitioner! Property tax exemption appeals are subject to picky, picky rules and it is an area filled with land mines. Practitioners in this area are duly warned.

Horton v. McLaughlin, an opinion issued February 18, 2003, is the denouement of the millennium impeachment proceedings against Justices Horton and Broderick and Chief Justice Brock. Seeking to recover from the state their legal fees and costs incurred in the course of their impeachment proceedings, the justices, having tried several other avenues, sought relief in the courts (1) under RSA 99-D:2 which provides for the defense and indemnification of certain state offices and employees under certain circumstances; (2) under common law; and (3) under the state and federal constitutions. Two sitting superior court judges and three retired superior court judges formed the panel in the supreme court. The superior court below had ruled that "the issue in this case is a nonjusticiable political question" and four of the five appointed members of the court panel agreed, holding that "the legislature’s exclusive power to conduct impeachment proceedings necessarily carries with it the full authority to make, implement and interpret rules pertaining to impeachment." The fifth member of the panel, retired superior court Judge Dickson, concurred on the grounds that the court lacked jurisdiction because "in my opinion the doctrine of sovereign immunity precludes the petitioners from suing the state to recover the costs and legal fees they have incurred as a result of the impeachment proceedings against them." So much for brotherly love.

In Appeal of McDonough, an opinion issued February 11, 2003, issues relating to straight ticket balloting were before the court. Experience has shown that, time and time again, voters misunderstand the mechanics of straight ticket balloting, often striking the straight ticket box, but then making contrary individual selections, or as in this case, striking the straight ticket box and then voting for some individual candidates but failing to vote for some candidates for other offices. In the present appeal, the ballot commission had counted as votes for the petitioner’s opponent, ballots in which the voter had struck the straight ballot symbol of the opponent’s party, had marked some candidates but had not marked the line of the petitioner’s opponent. The court agreed with the ballot law commission and the secretary of state that the straight ticket voting instructions and procedures have been a source of confusion under prior election laws:

We are troubled also that the ballots do not instruct voters clearly and unambiguously about the circumstances under which their votes will not count. There are no instructions that explain when a skipped race will not be counted for any candidate. Having these kinds of instructions may avoid future disputes such as this one.

Nevertheless, the court upheld the ballot law commission’s decision with respect to a sufficient number of challenged ballots to confirm the petitioner’s opponent as winner of the election.

Rancourt v. Manchester, an opinion issued January 10, 2003, is further embroidery upon the court’s earlier watershed 2001 Simplex6 opinion that articulated a new definition of unnecessary hardship in the variance area. The court here described the Simplex case as changing its former too restrictive interpretation of the unnecessary hardship standard of RSA 674:33, I(b), and adopted a new approach "that was more considerate of a property owner’s constitutional right to use his or her property." Under Simplex, "applicants no longer must show that the zoning ordinance deprives them of any reasonable use of the land….Rather, they must show that the use for which they seek a variance is ‘reasonable,’ considering the property’s unique setting in its environment." The issue in the present appeal was whether the prior law’s requirement that there be "special conditions" that warranted a variance was still applicable and the supreme court held not, holding that the test now was whether "the zoning ordinance…interfered with the intervenors’ reasonable proposed use of their property, considering its unique setting." This decision and the Simplex decision before it demonstrates how much less restrictive the variance requirements of unnecessary hardships has become under this court.

State v. Dupont, an opinion issued January 24, 2003, is another one of those odious sexual assault cases which occur so frequently that it is mind boggling. In this case, the defendant was indicted on sixty-nine counts of felonious sexual assault against his own stepdaughter, committed over a twenty-three month period during which the defendant assaulted the victim at least once a month. There was evidence that the defendant assaulted his victim in many ways, including playing a sort of strip poker card game with the victim in which he caused her to disrobe and when she lost he then fondled her genitals. It appeared that the defendant was a very good card player and won frequently. Even after the victim went off to college, the defendant wrote letters insisting that she call him every night. The supreme court upheld the defendant’s conviction, overruling the defendant’s argument that the trial court had erroneously admitted his tape-recorded confession where only parts of the interrogation were recorded. The court held that although this violated the court’s Barnett 2001 rule,7 the "harmless-error" doctrine applied here since the state had "prove[d] beyond a reasonable doubt that the error did not effect the verdict."

The importance the court places on the financial affidavits required of parties in divorce cases was made clear in In The Matter of Rohdenburg, an opinion issued March 17, 2003. Here, a marital master had ruled, in a matter of a petition for modification of child support, on the matter without requiring a fully completed financial affidavit from one of the parties. It was clear that the affidavit was incomplete since it did not include any information in response to questions pertaining to assets, property interests and related debt, although it was clear that such assets, interests and debt existed. The supreme court reversed, establishing a very bright line rule that "the requirement of full disclosure under Superior Court Rule 197 is mandatory for all sections of a financial affidavit and the financial affidavit must be filed at [a domestic relations hearing]."

McIntire v. Lee, an opinion issued February 19, 2003, is another of the increasing flow of legal malpractice cases. Because of the importance of this area of law to all attorneys, the author will focus full space on this opinion. Here, a superior court jury had found the defendant attorneys liable for malpractice and on appeal, the attorneys raised the defense that they were "immune from legal liability pursuant to the doctrine of judgmental immunity because the alleged areas in the underlying case constituted strategic or tactical decisions that were within their discretion." The supreme court, in a unanimous opinion by Justice Dalianis, rejected that argument, exploring in some detail the judgmental immunity doctrine as follows:

An attorney owes his or her client a duty to exercise reasonable skill and care in representing the client….’Whether the attorney has breached the applicable standard of care in representing the client is a question of fact to be determined through expert testimony and usually cannot be decided as a matter of law.’….The judgmental immunity doctrine provides, however, that an attorney will generally be immune from liability, as a matter of law, for acts or omissions during the conduct of litigation, which are the result of an honest exercise of professional judgment….While we have not formally adopted the judgmental immunity doctrine, we provide the same protection in professional liability cases.

As one court has noted, ‘[r]ather than being a rule which grants some type of immunity to attorneys, [the judgmental immunity doctrine] appears to be nothing more than a recognition that if an attorney’s actions could under no circumstances be held to be negligent, then a court may rule as a matter of law that there is no liability.’….As with any negligence case, however, it is axiomatic that if there is a genuine issue of material fact about the reasonableness and care exercised by an attorney, then the issue must be submitted to the jury….(rejecting defendant’s argument that he was immune from medical malpractice liability since a reasonable jury could find that his conduct fell below the requisite standard of care) [emphasis added].

Shillen’s Case, an opinion issued February 18, 2003, is a must read opinion for litigators, in particular, and all attorneys in general. This was a conflict of interest case in which the supreme court unanimously overturned its referee’s finding that the committee on professional conduct had failed to prove by clear and convincing evidence that the respondent had breached a conflict of interest when he represented clients adverse to each other in violation of rule 1.7 of the rules of professional conduct. The case involved a motor vehicle accident and the suit by a wife (passenger) against her husband (the driver) and the court laid down a tough standard rule in such cases:

A disinterested lawyer would conclude under these circumstances that a client should not agree to be represented by the same attorney who has been hired by his wife to sue him. When the driver of a motor vehicle is involved in an accident that results in serious injury to a passenger and it is clear that the driver may have contributed to the cause of the accident, an attorney cannot undertake to represent both parties.

The attorney relied upon expert testimony8 which found no conflict existed. This testimony hinged on the fact that (1) the attorney had ceased representing the husband at the time of the alleged conflict, and (2) the husband had consented to the attorney representing his wife. The court waved away this distinction, finding "this testimony unpersuasive" because the court felt there was clear evidence that the attorney continued to represent the husband in the matter even after he had taken the position he was no longer representing the husband. The moral of the story is that attorneys must be very, very careful in proceeding against a party that they formerly represented even where the adverse party consents to the representation.

Apropos of nothing other than the author recently stumbled across the following story which tickled his fancy and is contained in the 1770 census report of the county clerk of Grafton County, New Hampshire, to King George III,9:

Your Royal Majesty, Grafton County, New Hampshire, consists of 1,212 square miles. It contains 6,489 souls most of whom are engaged in agriculture, but included in that number are 69 wheelwrights, 8 doctors, 29 blacksmiths, 87 preachers, 20 slaves, and 90 students at the new college. There is not one lawyer, for which fact we take no personal credit but thank an Almighty and Merciful God.


1. 119 N.H. 647 (1979).
2. A member of the author’s firm appeared amicus curiae and thus the author’s views may be colored.
3. Matthews v. Wozencroft, 15F.3d 437 (5th Cir. 1994).
4. The author was personally involved in this case and, therefore, his views may be colored.
5. 79 Am. Jur. 2d Wills §  476 (2002).
6. Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001).
7. 147 N.H. 334 (2001).
8. The author’s partner offered expert testimony in the case and, therefore, the author’s views may be colored.
9. Brallier, The Appeal in Lawyers And Other Reptiles II, 22 (1996).


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


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