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Bar News - June 9, 2006

Supreme Court At-a-Glance – April 2006



General Linen Services v. Smirnioudis; No. 2005-268
April 26, 2006
Affirmed in part, vacated in part; and remanded

 Whether the trial court erred in its calculation of damages by: (1) not applying the doctrine of commercial frustration; (2) failing to properly determine the replacement cost deduction; (3) misinterpreting evidence establishing final payment and (4) awarding damages for the entire three year contract period.

(1) The court affirmed the decision of the trial court in refusing to apply the doctrine of commercial frustration, as this excuse for performance is not available to a party already in breach of a contract when the supervening event occurs. (2) The court vacated the replacement portion of the damage award, holding that the record was sufficiently confusing on that issue as to warrant remand to the trial court. (3) As the record contained evidence supporting the trial court’s finding, the court affirmed this portion of the damage award.  (4) The court affirmed the trial court’s assessment of damages for the entire three year contract period as supported by the evidence.

Thompson v. C&C Research and Development LLC; No. 2004-808
April 27, 2006

 Whether the trial court erred by: (1) finding that the defendants were not liable for misappropriation of the image of plaintiff; (2) failing to consider plaintiff’s claim of quantum meruit, quasi-contract and unjust enrichment and (3) failing to find a de facto merger had occurred between defendant and the purchaser of defendant’s assets.

The court held that: (1) the trial court did not err in ruling that any appropriation of plaintiff’s likeness by either the defendant or the purchaser of defendant’s assets was pursuant to the initial licensing agreement; (2) the trial court did not err in failing to consider claims of quantum meruit, quasi-contract and unjust enrichment, as these were not timely pled; (3) the trial court did not err in finding that a de facto merger did not occur between the defendant and the purchaser of defendant’s business assets, where there was no assumption of liability.


State v. Cathy Burke; No. 2004-787
April 12, 2006

 Whether: (1) the assault statute, codified at RSA 631:2, I (a) is unconstitutionally vague in that neither the statute, nor case law defines “unprivileged physical contact”; (2) whether there was insufficient evidence in the record to support defendant’s conviction.

(1) RSA 631:2-a, I(a) provides that “[a] person is guilty of simple assault if he [p]urposely or knowingly causes bodily injury or unprivileged physical contact to another”. The court held that the language of the statute requires law enforcement to clearly articulate some form of unprivileged physical contact in order to allege a violation of the statute. As the police must show that the contact at issue was not justified by law or consent, the enforcement of the statute requires the exercise of some degree of police judgment, making it unlikely that it will be applied in an ad hoc or subjective manner. (2) The court reiterated its holding in State v. Emery, 152 N.H. 887 (2005) which stated that the defendant carries the burden of proving that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt. In light of the evidence presented at trial, the court held upheld the decision of the trial court, finding the defendant guilty of unprivileged physical contact, as reasonable.

State v. Bean; No. 2004-455
April 25, 2006

 (1)Whether the trial court’s instructions to the jury impermissibly amended the indictment, which was itself insufficient; (2) whether the trial court improperly permitted the State to refresh the victim’s recollection and (3) whether the trial court should have granted the defendant’s motion for a directed verdict due to insufficient evidence to convict.

(1) The court cited their holding in State v. Johnson 144 N.H. 175, 178 (1999) to affirm that an attempted crime is by definition, a crime not completed, ergo the State could not plead, identify or prove the elements of an intended offense which has not been completed.

The court affirmed the decision of the trial court and held that the state was not required to allege in the indictment a statutory subsection of the attempted offense and because the indictment was sufficient, the trial court’s instructions did not amend what was otherwise a legal insufficiency in the indictment. (2) The court held that, since defense counsel had never raised a specific objection as to foundation, the issue had not been preserved for appellate review. (3) The court affirmed the decision of the trial court and held that, pursuant to RSA 629:1, I the conviction of a defendant for attempted kidnapping requires a finding by the jury that the defendant did or omitted doing “anything which, under the circumstances as he believe[d] them to be, is an act or omission constituting a substantial step toward the commission of the crime of kidnapping and concluded that evidence presented at trial was sufficient to support a finding of guilt.

State v. Livingston; No. 2004-859
April 25, 2006

 Whether the trial court erred in denying the motion to suppress evidence of marijuana and cocaine seized by an officer of the NH Bureau of Highway Patrol during a routine commercial vehicle inspection due to the (1) legality of the stop (2) voluntariness of the consent and (3) scope of the consent, both under the state constitution as well as the federal constitution.

On review, the court affirmed the trial court’s finding that initial stop of the defendant’s vehicle was valid under the administrative search exception to the warrant requirement. The temporary detention of the vehicle after the officer determined that the vehicle was too light to be considered “commercial” was lawful in that the officer had a reasonable suspicion that the person detained had committed or was about to commit a crime, pursuant to State v. McKinnon-Andrews, 151 N.H. 19 (2004) and the trial court found his testimony to be credible. (2) The trial court’s finding that the defendant’s consent was freely, knowingly and voluntarily given is supported by the record. (3) The court further refused to overturn the trial court’s finding that defendant failed to specifically limit or condition the search, and held that a reasonable person would determine that the officer did not exceed the scope of the search, either under the state or federal constitution.

State v. Arsenault; No. 2005-208
April 25, 2006

Whether; (1) the defendant’s guilty plea was accepted contrary to the due process rights of the Fourteenth Amendment to the United States Constitution in that the evidence did not support that it was knowing, intelligent and voluntary and (2) whether the lack of proof that defendant’s plea was knowing, intelligent and voluntary amounted to harmless error.

The court found that the defendant’s challenge of his guilty plea implicated the due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. Absent from the trial court record was any demonstration that the trial judge conducted an examination of the defendant concerning the plea, the nature of the charge and the elements of the offense charge against him. Execution of the acknowledgement and waiver of rights form by the defendant is not sufficient evidence to allow the trial court to assume that the defendant understood the nature of the case. The decision of the trial court is reversed as the acceptance of defendant’s plea violated his due process rights. (2) The court further ruled that the State did not meet its burden of proving that the error did not affect the outcome of the proceeding.

State v. Cochrane; No. 2005-021
April 26, 2006

 Whether the arresting police officer’s testimony regarding the Horizontal Gaze Nystagmus (HGN) test amounts to expert testimony and should have been excluded based on the state’s failure to comply with pre-trial disclosure requirements for expert witnesses.

The court held that, consistent with its position in State v. Ahern 122 N.H. 744 (1982) regarding the admissibility of evidence obtained through a radar gun, evidence obtained through the HGN test constitutes lay testimony gleaned through personal observations made by a trained police officer. The court therefore affirmed the ruling of the trial court admitting the results of the HGN test.

State v. Gibson; No. 2005-185
April 27, 2006Affirmed

 Whether the trial court erred by (1) not striking all portions of testimony admitted against defendant at trial as unreliable “repressed memories” under State v. Hungerford, 142 N.H. 110 (1997); and by (2) refusing to grant defendant’s motion for a mistrial.

Defendant was convicted of felonious sexual assault upon the testimony of his daughters’ continuous memories, the trial court having previously dismissed eighty-nine indictments which were deemed to be based on the “unreliable testimony” of repressed memories, pursuant to Hungerford. On appeal, the court held that the trial court was in the best position to gauge the prejudicial impact of testimony introduced at trial and found no error by the trial court in allowing certain testimony into evidence, as that testimony had been determined in a pretrial evidentiary hearing to be continuous memory, not repressed. (2) To justify a mistrial, the evidence in question must be unable to be cured by jury instructions. In affirming the decision of the trial court, the court held that, despite the introduction of testimony at trial which may have been prejudicial to defendant, the trial court’s subsequent instruction sufficiently cured any prejudice to defendant stemming from that testimony.


In re Juvenile; No. 2004-789
April 7, 2006
Reversed and Remanded

 Whether the trial court erred in its determination that the “sending district”, as defined in RSA 193:27, IV was the district in which the custodial parent resided, for the purpose of establishing financial responsibility for educational costs.

As the student in question was not in his mother’s custody immediately prior to placement, the student did not actually “reside” with his mother. Pursuant to RSA 193:237, IV, the trial court erred in denying Unity School District’s motion to dismiss, as the “sending district” is the district in which the student actually lived prior to a change in placement, not the district in which the custodial parent resides.

Family Law

In the Matter of Kathlyn F. Beal and R. Keith Beal; No. 2004-748
April 11, 2006
Vacated and Remanded

 Whether the marital property division statute authorizes trial courts to order the sale of marital assets for the benefit of the parties’ creditors.

In matters of statutory interpretation, the court, as final arbiter of legislative intent, will ascribe the plain and ordinary meaning to the words used. Similarly, the court interprets legislative intent from the statue as written. The plain language of RSA 458:16-a authorizes the trial court to distribute marital property “between the parties” and does not authorize a trial court to order a sale of the parties’ marital assets to pay their creditors. The trial court’s decision to order the sale of marital assets to pay creditors amounted to an unsustainable exercise of discretion and was therefore erroneous.

In the Matter of Barbara F. Bazemore and Martin L. Jack; No. 2005-194
April 11, 2006Affirmed

  Whether the trial court erred: (1) by not using the respondent’s last earned wages for the purpose of imputing income after a finding of voluntary unemployment; (2) by entering a support modification that was not in accordance with statutory guidelines or federal regulation and (3) by exercising its discretion in an unsustainable manner in imputing income to respondent.

The court noted that trial courts have broad discretion in reviewing and modifying child support orders. RSA 458:C:2, IV (a) provides that in cases where a parent is found to be voluntarily unemployed or underemployed, a trial court, “in its discretion, may consider as gross income, the difference between the amount a parent is earning and the amount a parent has earned”. In contrast, the succeeding subsection RSA 458-C:2, IV(b) addresses situations where a parent is voluntarily unemployed or underemployed and states that the income of a parent “shall be imputed to the extent that the parent has earned income in the past”. The court noted that under general rules of statutory construction, the word “may” is permissive in nature, whereas the word “shall” makes the enforcement of the provision mandatory. Noting that the grant of a greater power (mandatory) typically includes the grant of a lesser power (permissive) and citing O’Connell v. Shalala, 79 F.3d 170 (1st Cir. 1996) as authority, the court affirmed the decision of the trial court, holding that the court acted within the authority afforded it by statute.

In the Matter of Veta Rossino and Joseph A. Rossino, No. 2004-896
April 21, 2006
Vacated and Remanded

  Whether the trial court erred in imputing income to an unemployed or underemployed spouse pursuant to Noddin v. Noddin, 123 N.H. 73 (1983) when the unemployed spouse was physically incapacitated.

The trial court erred, in failing to consider a child support modification under RSA 458-C and in failing to make a determination regarding petitioner’s physical incapacity. RSA 458-C, enacted after the Noddin decision, supercedes Noddin. RSA 458-C:2, IV(a) defines “gross income” and grants the court discretionary authority to consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.

In re the Matter of Rebecca Harvey and Paul E. Harvey, Jr.; No. 2005-168
April 26, 2006
Affirmed in part, vacated in part, remanded

  Whether the trial court erred in: (1) awarding alimony which was inadequate in duration or amount; (2) approving an extended payment schedule which amounted to an unsustainable abuse of discretion; (3) awarding a reimbursement to respondent’s parents from the marital assets; (4) improperly including specific assets in the property distribution, causing an unequal distribution of assets in favor of the petitioner and (5) refusing to hear testimony concerning a “discounting” of the respondent’s fractional interest in certain parcels of real estate.

(1) The court held that, as the purpose of alimony is rehabilitative, and as petitioner was possessed of a law degree and had the expectation of becoming suitably employed, despite experiencing temporary mental depression, the trial court did not abuse its discretion in failing to award her alimony for life and affirmed the decision of the trial court on the issue of alimony. (2) The protracted payment schedule afforded respondent to pay petitioner’s share of the marital property (originally 15 years, but extended to 23 years to correct a mathematical error) although not specifically precluded by statute, was held by the court to be outside the scope of any other jurisdiction (absent a showing of serious financial hardship). The court vacated and remanded this issue to the trial court with direction that the trial court should consider either an immediate lump sum payment or payments to petitioner over a reasonable period of time. (3) As neither party had an enforceable legal obligation to respondent’s parents, but only a “moral” obligation, payment to respondent’s parents cannot properly be charged as a debt against the marital estate. The trial court erred in reducing the marital estate in the amount of $275,000.00. (4) As the record supported a finding that, with the possible exception of the timeshare, all real estate holdings and the dental practice of respondent were acquired during the course of the marriage, the decision of the trial court regarding distribution of assets was affirmed by the court. (5) The court affirmed the refusal of the trial court to allow expert testimony on the discount valuation of fractional interests in real estate, as the expert was unable to identify market evidence upon which to base his decision.


The Cadle Co. v. Dejadon; No. 2005-293
April 21, 2006

Reversed and Remanded

  Whether the trial court erred as a matter of law by ruling that the foreclosure of a mortgage and subsequent sale of the property to a third party effectively discharged the mortgage by operation of law.

The court held that absent full payment of a note or an express discharge of the mortgage by the mortgagee, merely foreclosing upon the mortgage cannot void or discharge it by operation of law. Therefore, an unpaid note secured by a mortgage remains actionable until the running of the statute of limitations on the mortgage.


Handley v. Providence Mutual Fire Insurance Co.; No. 2005-279
April 7, 2006
Reversed and Remanded

  Whether the trial court erred in granting summary judgment to Providence Insurance Co., in a suit to recover on a certificate of insurance issued to plaintiff when the agent who certified coverage knew the plaintiff had failed to pay for coverage.

The court distinguished the facts in this case from Bradley Real Estate Trust v. Plummer & Rowe Insurance Agency, 136 N.H. 1 (1992) and concluded that the court did indeed err in granting summary judgment to insurance company where the certificate of insurance did not clearly indicate it was issued for “information only” or that it “confer(ed) no rights upon the policyholder” and where agent knew “insured’s” check in payment of coverage had been returned for insufficient funds.

Guilfoy v. United Service Automobile Assoc., No. 2005-581
April 27, 2006

 Whether the trial court erred in failing to allow petitioners’ individual claims for the loss of familial relationship of their son and whether this loss triggers a separate per person liability under the defendant’s insurance policy (which limits coverage to $100,000 per person in cases of “bodily injury”).

The petitioners’ damage claim was based on RSA 556:12, III (Supp. 2005) which recognizes recovery in cases of wrongful death for “the loss of the comfort, society, affection, guidance and companionship of the deceased” and limits recovery by statute to $50,000.00. In granting the respondent’s motion for summary judgment, the court affirmed the ruling of the trial court that “loss of familial relationship does not constitute a separate “bodily injury” which would trigger an additional limit of insurance coverage under the policy, but is a consequential damage derivative of the underlying bodily injury claim. As the petitioners have already received the maximum per person award available under the policy ($100,000), the trial court did not err in awarding the respondent’s motion for summary judgment.


Dillman v. Town of Hooksett; No. 2005-564
April 7, 2006

  Whether an individual public sector union member may be assigned his union’s right under N.H. RSA 542:8 to seek a vacation, confirmation, correction, or modification of an arbitration award entered pursuant to a collective bargaining agreement between the member’s union and his employer.

The right to seek judicial review of an arbitration award is granted to “any party to the arbitration” by RSA 542:8. The court determined that it was the final arbiter in a determination of the intent of the legislature, as expressed in the words of the statute. The court determined that the “parties” to an arbitration in which the employees are represented by a labor union are the union and the employer. The court held that, in light of the foregoing, the assignment of a union’s right under RSA 542:8 to apply to seek confirmation, correction, modification or vacation of an arbitration award to an individual employee is contrary to public policy and not permissible.

Medical Malpractice

Hall v. Dartmouth Hitchcock Medical Center; No.2004-708
April 25, 2006

  Whether the trial court erred in denying defendant’s motion for a directed verdict and post-verdict motions of judgment notwithstanding the verdict and motion to set aside the verdict because : (1) DMHC met the disclosure requirements set forth in Smith v. Cote, 128 N.H. 231 (1986) by informing plaintiffs in a timely fashion of an increased possibility that their child would be born with serious birth defects; and (2) whether plaintiffs’ failed to produce sufficient expert testimony to link DHMC’s negligence to the failure to provide a definitive diagnosis of the child’s rare chromosomal disorder.

(1) The court reversed the decision of the trial court and held that, viewing all evidence in the light most favorable to the plaintiff, plaintiffs’ failed to provide sufficient expert testimony to satisfy, by affirmative evidence, the requirements for a medical malpractice action, as established by Smith. Due to plaintiffs’ failure to offer any expert evidence that DMHC could have disclosed information concerning the increased possibility of birth defects earlier and in light of plaintiffs’ failure to establish that the pregnancy could not have been terminated within the period of time remaining in the second trimester, the only reasonable inference that can be drawn from the evidence, viewed in light most favorable to the plaintiff is so overwhelmingly in favor of the conclusion that DMHC’s disclosure was timely, that the trial court erred in denying DMHC’s motion for directed verdict and post-verdict motions. (2) The court held that, under Smith DMHC was required to disclose only the increased possibility of birth defects, that the expert testimony offered established that DMHC informed the plaintiffs of an increased possibility that plaintiff would give birth to a child with severe defects; and the issue of whether the plaintiffs provided sufficient expert testimony to link DMHC’s professional negligence to its failure to diagnose a rare genetic disorder is therefore unnecessary.

Worker’s Compensation

Tech-Built 153, Inc. v. Virginia Surety Company, Inc., a/k/a
Combined Specialty Insurance Company (Virginia Surety and Surge Resources, Inc. (Surge); No. 2005-068
April 21, 2006

  Whether the trial court erred in ruling that an insurance policy, issued by Virginia Surety to Surge, did not provide worker’s compensation coverage to a client of defendant, for injuries sustained by an employee of one of plaintiff’s subcontractors.

The court held that, as the clear intent of the insurance policy was to extend workers’ compensation coverage exclusively to defendant Surge’s employees that it leases to the numerous companies identified in the insurance policy endorsement and not to declare each of the companies listed in the endorsement as named insureds, the trial court did not err in failing to extend workers’ compensation coverage to each of the defendant’s subcontractors.

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