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Bar News - June 23, 2006

Supreme Court At-A-Glance – May 2006


Contract/Specific Performance


Thomas Behrens & a. v. S.P. Construction Company, Inc.  No. 200-062

May 17, 2006


           In considering parol evidence in a contract case after determining that the underlying contract was ambiguous,  may a trial court then properly conclude that that the alternative interpretations were reasonable, and that there was no underlying meeting of the minds?

Yes.  After a detailed examination of the underlying facts and the language of the written agreement of the parties, and a consideration of whether the parties intended to integrate all of their understanding into the agreement, the court concluded that the contract was unenforceable.




State v. Shawn Kelley; No 2005-111

May 16, 2006

Reversed and Remanded

           Is an attempt to place a defendant in “protective custody” under RSA 172-B:3 an “arrest or detention” for the purposes of the criminal “resisting arrest” statute, RSA 642:2?

Yes.  Under a “plain meaning” analysis and in view of the purpose of the criminal statute, detention necessarily includes “protective custody”.  The court urged prosecutors to exercise their discretion.


State v. Uno Kim; No 2004-725 

May 10, 2006  (modified; see also the original opinion of March 28th)


           Under Rule 404(b), is evidence of defendant’s serious indebtedness prior to a murder properly admissible in this murder case?

Yes.  Applying a three-pronged test (relevance, clear proof, probative value), the court concluded that the requirements of Rule 404(b) were met.




Mary Carignan v. Leslie Wheeler & a.; No 2005-287

May 5, 2006


           Are a police accident report and its conclusions properly excluded, where the trial court concludes that no exception under the hearsay rule [Rule 803(8)C] applies, when the court finds that officer lacks the requisite training and background to reach the conclusion and thus concludes that the report lacks ‘trustworthiness’, within the contemplation of the Rule?

Yes.  The court examined the facts in this case and its earlier appeal, and concluded that the court’s ruling had a proper basis.




Merchants Mutual Ins. Co. v. Laighton Homes, LLC & a; No 2005-230

May 16, 2006

Reversed and Remanded

           Where the employee of a subcontractor asserts a claim directly against the general contractor, does the subcontractor’s commercial general liability insurance provide coverage?

No.  The plain language in the insurance contract excluded this coverage.


Lauren Belanger v. MMG Insurance Company; No. 2005-680

May 26, 2006

Reversed and Remanded

           1.  Where an often-sometimes-home daughter of a NH resident has one MA residential leasehold expiring (after being expelled by her roommates) and already has permission and keys to move into a new MA residential leasehold and is then involved in an automobile accident, is she still a “family member” for the purposes of an uninsured motorist clause in the mother’s homeowners insurance policy?

           2.  Where an insurance policy uses the phrase “resident”, but does not define it, does the statutory definition under RSA 21 apply?

1.  Yes and 2.  No.  The definition of “resident” under RSA 21 is for statutory interpretations, not for contracts, as here.  The court refers to its own prior insurance cases in determining a basic definition of “resident” to basically require:  physical presence at the locus and an appreciation by the person in question that the locus is their abode.  After a factual analysis here, the court concluded that summary judgment in favor of the insurance company was granted in error.


Venise Gonya & a. v. Commissioner, NH Insurance Department; No. 2005-170

May 18, 2006


           In forcing third-party claimants to give up certain common law claims against the insureds (or, at least to the extent of coverage), as a condition of their being heard by the liquidator of an insurance company, is RSA 402-C unconstitutional?

No.  The “Doctrine of Unconstitutional Conditions”, and its requirement that the conditions be germane to legitimate legislative objectives of the statute, is examined in some detail here.  The court concluded that RSA 402-C was constitutional and that the Superior Court ruled correctly in denying the claimant’s petition to declare the statute unconstitutional. The Chief Justice wrote a specially concurring opinion.




John Simpson v. Daniel Young; No 2004-700

May 16, 2006

Affirmed in part, Reversed in part and Remanded

           In a proceeding under RSA 540-A (landlord tenant action), can a district court award in excess of $25,000?

This is a full-blown landlord-tenant proceeding, beginning with pro se parties, with a rich factual basis and a variety of legal remedies explored by the court.  The most interesting of these is the question of whether individual transactions must be “aggregated” in determining whether the district court has jurisdiction or whether the right to jury trial is implicated.  Under these facts, the court decided that they need not be aggregated.




In re Guardianship of Theodore Kapitula; No. 2005-007

May 17, 2006


           Where a public guardian is appointed after an involuntary admission to the New Hampshire Hospital under RSA 464-A, are detailed findings of fact required?

No.  Appellant complained that “rote recitation” of statutory language and the use of “boilerplate” in the probate court’s order were contrary to the requirement for “specific findings”, but the court on appeal disagreed, saying that “written illumination of all facts” was not required, particularly since no Requests for Ruling and Findings were filed by either party.


Real Property


City of Rochester v. James Corpening & a., No. 2005-389

May 26, 2006


           In an injunctions-against-a-junkyard case, whether the statutory phrase “shall be subject to [a civil penalty not to exceed $100 per day]” mandates the imposition of civil penalties under RSA 676:17 I

No.  The majority applied a “plain meaning” analysis and conclude that the short answer is:  no.  The phrase “shall be subject to” is not co-terminus with the phrase “shall suffer the imposition of”. The Chief Justice dissented. 


Real Property/Contracts


Barclay Square Condominium Owners Association; No. 2004-871

May 18, 2006

Reversed and Remanded

           Where one business condominium owner makes ongoing use of the common gravel parking areas for storage of vehicles waiting to be worked on by his business and where the business condominium agreement does not provide a definition of “discrimination” in barring the majority from engaging in it in amending the rules for the condominium association, and where no prior cases define it in this context, the court will look to other jurisdictions in determining one.

The trial court’s decision that the association discriminated against the one owner was in error.


Real Property/DES


Appeal of the Town of Nottingham & a., No. 2004-601

May 19, 2006


           Whether the “public trust” doctrine enunciated in the declaration-of-policy clause in RSA 481 imposes any additional requirements on proceedings under RSA 485-C for groundwater withdrawal.

No.  The declaration of policy in RSA 481 does not by itself impose any additional specific requirements on 485-C. In a 25-page decision, the court went on to note several ambiguities in the statute, sought to resolve the ambiguities and then expressly invited the legislature to rewrite the statute if it disagreed with the court’s resolutions.  The court noted and applied a standard of review under RSA 541, which requires proof by a clear preponderance that the agency’s decision was unjust or unreasonable.




K & B Rock Crushing & a. v. Town of Auburn; No. 2005-211

May 19, 2006


           In an application for an excavation permit under RSA 159-E:9 (which deals specifically with excavation permits), is a motion for rehearing before the board required before jurisdiction vests in the Superior Court?

Yes.  With some noted exceptions, the right to appeal generally attaches to the denial of the motion for reconsideration, not to the denial of the initial application.


Weare Land Use Association v. Town of Weare; No. 2004-849

May 18 , 2006

Affirmed and Remanded

           Where the town’s interim growth management ordinance prohibited the planning board from “accepting” any plats or applications above a certain size after a date certain, had the town thereby acted “ultra vires” in the putative exercise of statutory powers?

No.  The forced “acceptance” would have locked in the then-present state of the zoning ordinances, contrary to the manifest purpose of the legislature in passing the enabling law.


Simpson Development Corp. v. City of Lebanon; No. 2005-207

May 17, 2006


           Where the planning board revoked its conditional approval of an amendment to the cluster subdivision plan, had the approval become final where the condition had not been met?

In proceedings under RSA 674, any conditional approval becomes final only when the conditions are met.  If the conditional approval has not become final, then the board can reconsider its earlier decision and revoke the conditional approval.

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