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Bar News - November 17, 2006

NH Supreme Court At-a-Glance – October 2006





State v. Wall; No. 2005-507

October 13, 2006



  • Whether, in a prosecution for aggravated DUI and related offenses, the trial court erred in refusing to suppress the results of blood tests conducted by the hospital to which the defendant was taken, by emergency medical personnel, following an automobile accident, as well as State tests on blood samples drawn by the hospital.


Constitutional protections against warrantless searches and seizures apply only to “state actors” and to private individuals acting as state agents. Even though the police at the accident scene instructed the ambulance to take the defendant to a New Hampshire facility rather than to the closest facility, which was in Massachusetts, defendant presented no evidence that personnel at the hospital knew of that instruction or that the police had communicated with the hospital to request that they test the defendant’s blood alcohol level. The evidence adequately supported the trial court’s finding that the hospital acted independently in drawing the defendant’s blood for diagnostic purposes, not for law enforcement. On these facts the trial court was warranted in ruling that the hospital was not an agent of the State.


The hospital’s records of the laboratory tests it conducted were admitted as business records under N.H. Rule of Evidence 803(6). In support of the records, the State presented testimony from the hospital’s medical records’ administrator and its director of laboratory services. These witnesses testified in detail concerning the training of personnel and the procedures followed in performing and recording tests such as those at issue. They also specifically identified the defendant’s records that the State sought to introduce. This testimony was adequate to support the trial court’s exercise of discretion in admitting the records into evidence.


The court declined to decide whether, as defendant’s argued, the State had violated her privacy rights by seizing her medical records and blood samples without her consent and without a warrant. Assuming without deciding that the seizure had indeed violated defendant’s constitutional rights, the error was nevertheless harmless because the other evidence of the defendant’s intoxicated condition was overwhelming and the evidence at issue merely cumulative.


Wrongful Discharge


Lacasse v. Spaulding Youth Center; No. 2005-686

October 13, 2006

Affirmed in part, reversed in part, remanded.


  • Whether the trial court erroneously granted summary judgment to the defendant employer on its former employee’s claims for constructive wrongful discharge and for negligent supervision.


In determining that the plaintiff-employee had not shown sufficient evidence of constructive discharge to defeat summary judgment, the trial court did not give adequate weight to evidence of plaintiff’s supervisor’s behavior. That evidence included the supervisor having told the plaintiff during her hiring interview that the supervisor’s practice was not to fire anyone, but rather to force employees to quit by making the work environment miserable for them, as well as an escalating course of conduct toward the plaintiff that the trial court unreasonably characterized as non-hostile. On the evidence submitted by the plaintiff, a jury could find, using the test set out in Porter v. City of Manchester, 151 N.H. 30, 42 (2004), that a reasonable person in plaintiff’s position would have resigned rather than endure continued mistreatment by the supervisor. The trial court’s ruling granting summary judgment to the defendant employer on this count was erroneous, and the case was remanded for trial.


The plaintiff’s claim for negligent supervision, on the other hand, did not fall within the statutory exception to the workers’ compensation bar for wrongful termination actions, RSA 281-A:8, III. She therefore could not pursue a common law action on this claim. The trial court correctly granted partial summary judgment to the employer dismissing this claim.


Attorneys’ Fees


LaMontagne Builders v. Brooks; No. 2005-409

October 20, 2006

Affirmed in part, reversed in part, remanded


  • Whether the trial court erred in awarding the plaintiff attorneys’ fees and costs totaling more than $400,000 upon a finding of the defendant’s bad faith in the conduct of protracted litigation that obstructed the plaintiff’s recovering payment for its services.


In the underlying case, the plaintiff sought payment for services under a construction agreement with several interrelated defendants, alleging among other things that proceeds of a bank loan secured for the project had been improperly diverted by this defendant, an officer of the general partner in the partnership. LaMontagne Builders v. Bowman Brook Purchase Group, 150 N.H. 270 (2003). In the first appeal, the court upheld the trial court’s award of damages against the defendant personally and its initial award of attorneys’ fees against both this defendant and the corporate entities for having acted in bad faith. On remand, the superior court, after a hearing to determine the amount of fees and costs, awarded the plaintiff a total of more than $400,000 in fees plus about $12,500 in costs. In this appeal the defendant challenged portions of these fees and costs.


Under N.H. Supreme Court Rule 23, awards of fees and costs for appeals lie within the sole discretion of the Supreme Court, notwithstanding contrary indications in Funtown USA, Inc. v. Town of Conway, 129 N.H. 352 (1987). The plaintiff failed to file a taxation of costs and motion for fees with the Supreme Court under Rule 23 at the close of the previous appeal. The trial court lacked authority to award fees and costs for the appeal. That portion of the award is reversed.


The trial court initially denied plaintiff’s request for fees for the arbitration phase of the case, but expressly did so without prejudice should it later find bad faith. Following a full trial, the trial court found that the defendant had acted in bad faith throughout the litigation. That finding supported the fee award for the earlier phase of the action.


Although the trial court had not found bad faith in the defendant’s post-trial motions as such, it did find that the defendant had acted in bad faith throughout the litigation and, even after trial, had done everything he could to delay and obstruct the case proceeding to an enforceable judgment. The evidence adequately supported this conclusion and the trial court’s award of fees for post-trial proceedings.


It was not erroneous for one trial court judge to award fees and costs for portions of the case that had been heard by another superior court judge, where the judge making the award was intimately familiar with the case as a whole.


It also was not an unsustainable exercise of discretion for the trial court to award fees and costs for the plaintiff’s work in preparing alternate theories of recovery that did not ultimately form the basis of the judgment, and for filing multiple actions that the defendant claimed were “inefficient” but the court found were made necessary by the defendant’s own deceitful, unreasonable, and uncooperative behavior.


Finally, the fact that the trial judge had previously acted on an ex parte attachment, even together with other alleged indications of bias, did not rise to the level requiring that judge’s recusal and/or a change of venue for the subsequent proceedings.


Family Law – Post-Divorce Modification


In the Matter of Fulton and Fulton; No. 2005-591

October 31, 2006

Affirmed in part, vacated in part, remanded


  • Whether, in this post-divorce proceeding to modify child support, the trial court erred in imputing gift income to the recipient, giving the payor credit for commuting expenses, declining to make the order retroactive beyond the date of filing, modifying the visitation schedule without a GAL, and omitting the payor’s bonus from its calculation of support.


The plain meaning of the definition of “gross income” in RSA 458-C:2, IV limits “income” to money that the recipient is legally entitled to receive and for which she would have an enforceable claim. It does not include gifts, regardless of size or frequency. Any change to this rule would require legislative action. However, the trial court has sufficient flexibility under RSA 458-C:5 to consider gifts as a special circumstance that may warrant a deviation from strict application of the support guidelines. The trial court erred in imputing gift income to the recipient, and the order is vacated and remanded for a recalculation.


The trial court had discretion under RSA 458-C:5 to consider increased commuting costs as a “special circumstance” justifying a departure from the support guidelines. The payor’s costs increased when his earlier job was discontinued, and he obtained new employment in Boston. The payor’s attorney represented to the court the amount of the increased costs, and the recipient did not challenge the amount or present any evidence that it was unreasonable. This record was sufficient to support the trial court’s order giving the payor credit for the increased commuting expenses.


The trial court rejected the recipient’s argument that the parties had agreed, through their counsel, to make any modification retroactive to the date the payor started his new job, rather than merely to the date the motion to modify was filed as provided by RSA 458-C:7, II. There was sufficient evidence to support the trial court’s factual finding that no such agreement had been reached. There was therefore no occasion to decide whether the parties can, by agreement, change the effective date of a modification.


Neither party requested a guardian ad litem to assist in changing the visitation schedule, either in pre-trial pleadings or at the hearing on the merits. The respondent-appellant specifically told the court a GAL would not be needed. Under the statute in effect at the time, RSA 458:17-a, I (repealed 2005), the trial court was not required to appoint a GAL unless a party requested it before or during the hearing. The court was within its discretion in not appointing a GAL in this case.


The question of whether the payor’s bonus should be included as “income” in calculating his child support obligation should be considered on remand, as the record was not clear.


Workers’ Compensation


Appeal of Lorette; No. 2006-125

October 31, 2006

Reversed and remanded


  • Whether a scheduled permanent impairment award should be calculated based upon the claimant’s earnings at the time of the permanent impairment assessment, using the rule in effect at the time of his 1996 injury, or based on his wages at the time of the injury, using the intervening 2003 statutory amendment.


Until 2003, a scheduled permanent impairment award under RSA 281-A:32 was calculated based on the employee’s wages at the time of the permanent impairment assessment. Ranger v. N.H. Youth Development Center, 117 N.H. 648 (1977). In 2003 the legislature amended the statute to specify that the calculation should be based on the employee’s average weekly wage at the time of the injury. RSA 281-A:32, XI.


The Compensation Appeals Board found that at the time of the assessment, the claimant was completely unemployed due to his work-related disability, and therefore awarded him zero. Both parties assumed, based on prior case law, that the case was governed by the law in effect at the time of the claimant’s original injury, although the claimant argued for alternative ways to determine his income at the date of assessment. The claimant’s failure to contest the applicable law does not, however, constrain the court’s authority to interpret the statutory language.


The permanent impairment award is distinct from weekly disability benefits. The permanent “loss” may occur either at the time of the initial injury, or at a later time when the claimant is determined to be permanently disabled and his right to the award accrues. In this case the permanent impairment “loss” occurred in 2004, when the claimant was found to be permanently disabled. The 2003 amendment therefore controls calculation of his permanent impairment award, and on remand the Board must use the claimant’s average weekly wages at the time of his 1996 injury.



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