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Bar News - December 15, 2006

NH Supreme Court At-a-Glance – November 2006




Family Law/Parental Rights


In Re Juvenile

No. 2005-426

November 2, 2006



  • Whether the trial court unsustainably exercised its discretion when it decided that father, released from incarceration, should not be allowed a third extension to comply with DCYF dispositional order for reunification with his son, where father’s failure to meet time standards for compliance was due to father’s disciplinary violations proscribing his parole. 
  • Whether it was an unsustainable exercise of discretion to find that  “another planned permanent living arrangement” (APPLA) – remaining in long-term foster care - was in the son’s best interest and the appropriate permanency plan in lieu of other permanency options. 


The trial court found that father had neglected his son by reason of incarceration, and DCYF proposed a permanency plan with a dispositional order to bring about father and son’s reunification.  Although father substantially complied with the order, his parole was denied on two successive occasions due to father’s disciplinary violations while incarcerated.  Father requested and received two extensions to comply with the dispositional orders.  When father requested a third extension, the court instead ordered long-term care in the son’s then-current foster home as the son’s permanency plan.


The Court agreed that the trial court did not err by denying the father’s request for a third extension; father had had “extensive time within which to demonstrate an ability . . . “ to comply with the outstanding dispositional order. 


Permanency options established by federal act include reunification, adoption and termination of parental rights, legal guardianship, and APPLA – considered the least preferable and ordered only when the state agency has documented compelling reasons that the other permanency options are not in the best interest of the child.   The Court found that although the trial court did not explicitly apply the standard, father did not argue that point and the record supported the trial court’s decision that the placement was in the best interest of the child.  Among other factors, the trial court found that father’s failure to comply with the dispositional orders was due to his own inappropriate behavior; father was “unable to demonstrate that he was able to provide a safe and stable environment for his son”; the son’s foster placement was stable and secure, and disruption would be detrimental to the child’s psychological well-being; the son wanted to remain with his foster parents; the GAL supported the foster placement; and, father himself recognized that his son was doing well and should stay in the foster home at that time. 

Family Law/Divorce


In the Matter of Marcus J. Hampers and Kristin C. Hampers

No. 2005-128

November 1, 2006

Affirmed in part, vacated in part, and remanded.


  • Whether the weight of the evidence supported granting the divorce on fault grounds, pursuant to RSA 458:7;
  • Whether the petitioner’s reduction in custodial time from that provided in the temporary agreement was supported by evidence that such reduction and the award of primary physical custody to the respondent was in the best interest of the child;
  • Whether child support was calculated correctly;
  • Whether the amount and duration of the alimony award was excessive;
  • Whether the property distribution was equitable given the parties’ short-term marriage and the petitioner’s contribution to assets;
  • Whether the court’s order of a $500,000 property advance to the respondent in the event of petitioner’s appeal violated his due process rights and whether the court had the authority to make such an order absent evidence the petitioner may dissipate assets;
  • Whether the court supported its award of attorney fees to the respondent.


The parties were married in September 1998 and had one child in August 2000. The petitioner filed for divorce in June 2002.  After a seventeen-day trial, the trial court granted the respondent’s cross-petition on fault grounds, awarded the parties joint legal custody and the respondent primary physical custody of the child, ordered the petitioner to pay $6,599 in monthly child support, awarded the petitioner the marital home (worth approximately $1 million) and approximately $15 million in assets and awarded the respondent approximately $2 million in assets, awarded the respondent $2500 monthly alimony from December 1, 2004 until August 1, 2018, ordered the petitioner to pay a $500,000 advance in the event of an appeal, and ordered the petitioner to pay the respondent’s past, present, and future attorney fees, guardian ad litem fees, and court-ordered mediator/arbitrator fees.


The Court affirmed the finding of fault grounds because the record provided evidence of the respondent’s desire to continue the marriage, creating a reasonable possibility of reconciliation.  The trial court was entitled to conclude that the petitioner’s subsequent threats defeated any possibility of reconciliation and ultimately destroyed the marriage itself.  Thus, finding the petitioner’s fault to be the primary cause of the marital breakdown was fitting.   


The custody schedule was affirmed where evidence in the record, including the recommendation of the guardian ad litem (GAL) and the GAL’s experts, supported the trial court’s award.  Among other factors, the GAL noted that shared physical custody was not appropriate due to evidence of the parties’ inability to effectively share custody for the duration of the temporary orders.  Further, the expert noted that the multiple transitions of shared physical custody were difficult for the child. 


The Court vacated the child support order where the petitioner demonstrated that his monthly gross income, provided by the respondent on her child support guidelines worksheet, was not supported in the record.


The $2500 per month alimony award was affirmed where the trial court considered the statutory factors respective to the parties “short term” marriage, the respondent’s $35,000 annual salary and the petitioner’s $166,000 annual salary, and the petitioner’s assets of $15.5 million in his revocable trust.  The thirteen-year duration of the alimony award was affirmed based on the supported finding that it was in the child’s best interest for the respondent to continue to work part-time and avoid third-party caregivers.  


The Court found that the trial court had apportioned the property equitably, and had considered the statutory factors when dividing the assets. The petitioner’s arguments that the short duration of the marriage and his contribution to the assets should change the award in his favor were mistaken, and the record supported the respondent’s award.  The petitioner argued that the court’s consideration of economic parity was not allowed by New Hampshire law.  The Court disagreed, noting that RSA 458:16-a, II (o) permits the court to consider any relevant factors. 


Because the petitioner could not show that his constitutional claims were preserved for review, the Court declined to consider them.  The Court found that the trial court has the authority and jurisdiction to preserve the household status quo for the respondent and child, and its order that the petitioner should pay the respondent $500,000 in the event of an appeal was consistent with that authority.  The trial court’s belief that $500,000 advance was necessary to preserve the status quo was supported by the record of an earlier ex parte motion by the petitioner that resulted in the respondent’s removal from the marital home. 


The Court first found that the record implied the trial court’s findings of the respondent’s need and the petitioner’s ability to pay attorney fees.   The petitioner argued that the trial court did not apply the provisions of Gosselin v. Gosselin, 136 N.H. 350 (1992) (holding a court must have evidence of the services and time involved, and the fee arrangement, in order to support a determination of reasonableness) to its attorney fee award, and thus the award should be vacated.  The Court upheld the attorney fees already paid to the respondent, finding that they were in the nature of a property award, rather than an attorney’s fee award.  However, the Court held that the Gosselin requirements did apply to any attorney fees incurred by the respondent but not yet paid by the petitioner, and to the extent the trial court had not complied with Gosselin, the award of fees to the respondent was vacated.   It further held that all future fee awards would be subject to the Gosselin procedure, and on remand the trial court would determine the reasonableness of attorney’s fees claimed by the respondent. 


In the Matter of Jennifer Sarvela and Brian D. Sarvela

No. 2005-634

November 29, 2006

Affirmed in part, vacated in part, and remanded.


  • Whether the trial court erred when it denied the petitioner’s fault grounds of habitual drunkenness when the respondent’s alleged ‘drunkenness’ was caused by prescription drugs.
  • Whether the trial court divided marital assets equitably, given the alleged short term of the marriage and the petitioner’s alleged greater financial contributions to the marriage. 
  • Whether the trial court erred when it found the parties had made reciprocal waivers of certain assets including their 401(k) plans.
  • Whether the trial court erred in its finding of the respondent’s voluntary underemployment and in its imputation of his income.
  • Whether the trial court erred in ordering the respondent’s share of proceeds to be held in an escrow account to secure child support, absent a finding of egregious non-payment.
  • After a two-day trial, the trial court granted a divorce on the grounds of irreconcilable differences, ordered a near-equal distribution of assets (excepting a $10,000 offset to the Petitioner for money she contributed to the marital home prior to the marriage), ordered the respondent’s share of equity to be placed in escrow to secure child support, found the respondent voluntarily underemployed, and imputed his income to be $72,449 per year. 


After its review of dictionary definitions for the term’s plain meaning, the Court found that the term “habitual drunkard” did not apply to habitual abuse of prescription drugs. It also noted that a law means what it meant when originally framed, and does not change upon its repassage.  “Habitual drunkenness” as a fault ground for divorce originally appeared in 1842 and  “drunkenness,” then as now, contemplates abuse of alcohol and liquor. 


The Court found that the near-equal asset division was equitable and that the record supported the trial court’s review of the RSA 458:16-a factors for division.  The petitioner was mistaken in her interpretation of Rahn v. Rahn, 123 N.H. 222, 225 (1983) because the language of that case did not require trial courts to return the parties in a short-term marriage to their premarital financial status.  The Court found the evidence in the record and the trial court’s findings conflicted with the petitioner’s claim of a $91,024 contribution from her family that should have been credited to her; the asset award was affirmed.

Contrary to the respondent’s assertion, the Court found the record did contain evidence of his agreement to waive his claim to the petitioner’s stock and 401(k) in exchange for her waiver to rights to his 401(k).


The Court vacated the trial court’s finding of voluntary underemployment.  The trial court had relied on Noddin v. Noddin, 123 N.H. 73 (1983), and its holding that child support could not be reduced when the obligor’s wrongdoing was the impetus for his job loss.  In Rossino v. Rossino, 153 N.H. 367 (2006) the Court noted that the enactment of RSA 458-C: 2, with its purpose of establishing uniformity in child support determinations, superceded Noddin. (In Rossino, the Court reversed the trial court’s decision to impute an obligor’s higher income on finding his job loss was due to his own inappropriate actions; the obligor in that case did not “voluntarily” become unemployed.)  Thus the trial court erred as a matter of law when it found voluntary underemployment because the respondent was fired from several jobs, without finding that his unemployment was voluntary.  This issue was remanded for further consideration consistent with the opinion in Rossino. 


The court’s order securing child support in an escrow account was upheld based on the court’s finding that there was no evidence the respondent had stopped abusing prescription drugs.  Nor was the court’s discretion for such an order limited by the respondent’s alleged requirement of a finding of egregious non-payment or hiding of assets.


Family Law/Post-Divorce Modification


In the Matter of Susan Clark and Nathan Clark

No. 2005-531

November 29, 2006

Affirmed in part and remanded.


  • Whether the trial court erred by not including the respondent’s in-kind benefits for the purpose of establishing child support, by not ruling on the petitioner’s motions for contempt, and by not recalculating child support.


The petitioner requested that child support be modified because she learned that the respondent was living in his employer’s home and paying little rent, and was using his employer’s car; she believed the value of these benefits should be included in “gross income” and the child support award should accordingly be adjusted.  Her petitions for contempt alleged withholding of $84.50 alimony, arrearage of six months of alimony, and failure to produce copies of tax returns and proof of life insurance.


The Court agreed with the trial court that RSA 458-C: 2, IV does not include in-kind benefits in its definition of gross income.  Gross income is further characterized by being payable in money, and being a benefit to which a recipient has legal claims; the facts of this matter did not even establish that the alleged benefits were employer-provided in-kind benefits, because the living arrangement commenced before the respondent’s employment.  The petitioner submitted information that other jurisdictions include in-kind benefits in a calculation of gross income; the Court noted, however, that those states have statutes that specifically define gross income to include such benefits.  


With respect to the petitioner’s claims of contempt, the record showed the respondent cured the claims by paying the $84.50 alimony withheld and by producing the insurance and tax documents at the time of the hearing.  The record also showed that the petitioner did not present any evidence in support of her allegation of a six-month alimony arrearage, thus the trial court did not unsustainably exercise its discretion in its response to the petitioner’s motions for contempt. The Court found, however, that factual findings may be required to resolve a question of error in the original child support calculation, and remanded that issue for resolution.  




In re Guardianship of E.L.

No. 2005-316

November 1, 2006



  • Whether the probate court erred in denying the ward’s (E.L) motion to terminate guardianship, and whether sufficient evidence existed to prove beyond a reasonable doubt the statutory components that E.L. remains incapacitated to make his own medical decisions and that no less restrictive alternative to guardianship exists.
  • Whether the requirement of RSA 464-A:2, XI that evidence of inability to provide for personal needs must have occurred within six months of filing a petition applies to a petition for termination of guardianship. 


In 1994 the ward E.L. was deemed incompetent for sentencing for his conviction for sexually assaulting his wife and was originally confined at the Secure Psychiatric Unit of the New Hampshire State Prison. After a diagnosis of bipolar disorder and treatment with medication he was sentenced and transferred to the prison’s main population.  His behavior and medication response is monitored by a three-member treatment team.  His behavior is improved when he takes his prescribed medications. 


The Court found evidence to support finding beyond a reasonable doubt that – as required by RSA 464-A: 2, XI — substantial harm would likely occur without E.L.’s medical guardianship; E.L posed a danger to himself and others where he had minimal insight into his illness and his need for medication, and he intended to quit taking his medications if there were no compulsory oversight for his compliance. Moreover, the Court found that the guardian was not limited to evidence of E.L.’s inability to provide for his personal needs that occurred within six months in order to support E.L.’s continued incapacity and need for guardianship.


The Court examined whether less restrictive forms of intervention, specifically, a power of attorney or a springing guardianship, would continue to provide E.L. with the needed care and services.  Given the fact that E.L. could cancel a power of attorney, and evidence that a springing guardianship that would arise upon certain events or symptoms would disrupt or obviate the effectiveness of E.L.’s current medication regime, those less restrictive alternatives were not viable.  The record evidence was sufficient to support the probate court’s findings and denial of E.L.’s motion. 


Contract Law/Insurance Policy Limits/ Choice of Law


Lynn Warner v. Clarendon Insurance Company

No. 2005-415

November 2, 2006

Summary judgment affirmed.


  • Whether an insurance policy obligates defendant Clarendon to pay policy liability coverage of $2 million to covered users or whether liability coverage is determined by a clause in a vehicle rental agreement restricting coverage to the limit required under the financial responsibility law for the state in which the vehicle is rented.  
  • Whether endorsements in Clarendon’s policy are ambiguous and whether they are consistent with applicable financial responsibility law.
  • Whether the financial responsibility law of Florida, Ryder Truck’s home state, should be applied.


The plaintiff’s automobile was struck in Hopkinton, N.H. by a Ryder truck rented in Idaho by a Maine resident.  Ryder was covered by an insurance policy that provided for $2 million in liability coverage, however, contractual provisions in the vehicle rental agreement limited liability coverage to “ . . .the minimum [applicable] financial responsibility limits and /or minimum no fault benefits required by applicable law . . .” -which in New Hampshire and Idaho are $25,000.   


The Court said there was no reason to resolve any ambiguity between the two challenged endorsements in the insurance policy because they were trumped by the plain language and single reasonable interpretation of a third endorsement that addressed the relationship between the insurance policy and the rental agreement.  The rental agreement limited coverage to the minimum financial responsibility limits required by applicable law, and thus the coverage available was $25,000.  The plaintiff’s reliance on RSA 264:14, I, II was misplaced because the policy in question was not issued under that statute nor was the vehicle “registered or principally garaged in this state.”  


The Court applied Florida law, which says insurance contracts are construed by their plain meaning, and found that where the policy did not name Florida law and instead named “applicable law” and included 140 pages of endorsement pertaining to the applicable financial responsibility laws of different states, the policy did not contemplate the use of Florida law.


Administrative Law


Appeal of Town of Bethlehem

(New Hampshire Department of Environmental Services)

No. 2004-435

November 2, 2006



  • Whether tax exemptions approved by the New Hampshire Department of Environmental Services (DES) for a landfill facility’s air and water pollution control were unjustly or unreasonably determined and not in accordance with the qualifying features articulated in RSA 72:12-a.
  • Whether the Town of Bethlehem’s rights under the state constitution were violated because property was declared exempt from taxation or because alleged unequal tax benefits were created in the community. 
  • Whether the definition of “treatment facility” from New Hampshire Administrative Rule, Env-Wm 102.129 excludes a landfill, thus making the beneficiary of the tax exemptions ineligible for DES consideration.
  • Whether the Town had a right to an adjudicative hearing and thus DES’ procedures violated the Administrative Procedure Act (APA) and the Due Process Clause of the State Constitution.
  • Whether DES mishandled certain alleged ex parte communications according to the terms of RSA 541-A: 36 and Articles 15 and 35 of Part I of the State Constitution.    


RSA 72:12-a provides a means for entities to obtain tax exemptions for the reduction, control, or elimination of sources of air or water pollution in their operations.  North Country Environmental Services (NCES), a solid waste landfill facility in Bethlehem, applied to the New Hampshire Department of Environmental Services (DES) for tax exemptions provided by RSA 72:12-a and submitted that certain components of its facility were eligible.  DES’ review of the application, a site visit, and a request for rehearing by NCES ultimately resulted in approval of tax-exempt status for twelve components of the NCES facility.  Under multiple theories, the Town of Bethlehem appealed the allowance of the exemptions.


The Court first relied on the plain and ordinary meaning of the words used in RSA 72:12-a and found that the Town’s interpretation of the statute was not accurate; DES was not obligated to evaluate the landfill facility as a whole, but rather could assess its separate components and determine their qualification.  The Town also challenged DES’ findings that the components granted tax-exempt status actually effected “treatment. “ The Court’s opinion summarized NCES’ application, and DES’ findings for each of the proposed tax-exempt components in that application.  The Court found DES’ findings were supported by the record, and moreover, where the Town did not challenge the propriety of the evidence from which DES drew its conclusions, but rather the conclusions themselves, the Court did not wish to substitute its judgment for DES’ expertise. 


Where DES applied RSA 72:12-a “in a manner which was neither unjust, unreasonable nor unlawful” the tax exemptions did not violate any constitutional protections of Part II, Article 5.  Respective to the Town’s claims that the tax exemptions violated Part I, Article 10 of the State Constitution because they created “unequal benefits across the community,” the Court reasoned that Part I, Article 10 “does not require absolute equality of burden in the case of tax exemptions.”  Further, a public benefit – attempting to minimize or reduce pollution - is advanced by the tax exemption, supporting its constitutionality. 


The context of Rule 102.129 (now expired) pertained to solid and hazardous waste management in New Hampshire, and was promulgated in support of a purpose different from that of RSA 72:12-a and thus was not applicable.  Moreover, the Court noted, the definition of “treatment facility” in Rule 102.129 still would not refute DES’ statutory authority to evaluate individual components of such a facility.


An adjudicative proceeding, according to the APA, is provided in contested cases where a party’s legal rights, duties, or privileges “are required by law to be determined by an agency . . . “  RSA 541-A: 1, IV.  But the Town was not named as a party in the DES proceedings, nor was it entitled to be admitted as a party as of right.  Neither did the Town support its claim that its right to rehearing under RSA 72:12-a entitled it to an adjudicative hearing.  Further, because there was no basis to find that DES’ evaluation of NCES’ application was a contested matter, DES was required to follow its own rules for non-adjudicative hearings.  Finally, the Court assumed, without deciding, that the Town could raise a due process challenge to a state agency’s procedures.  But the two-prong analysis to determine whether DES procedures satisfy due process first found that the Town did not have a protected liberty interest (none discerned) nor a property interest (statutory right to participation in tax exemption decisions does not confer a property interest) in the case.  And because there was no property interest, there could be no wrongful deprivation of any protected interest.  


The Town’s claim that ex parte communications between DES and NCES found in DES files were prohibited by RSA 541-A: 36 was refuted because, again, the Town had not proved that the matter was a contested case, and the statute applies only to contested cases.  The Town’s further arguments that the due process entitlement of Part I, Article 15 mandated a different outcome respective to the communications failed because, again, the Town did not prove a protected liberty or property interest was at stake.  And although Part I, Article 35 obligates DES to notify the Town and hear its argument, DES is still authorized to make its determination “regardless of submissions made by anyone . . .”  The Court also noted DES’ findings that many of the alleged ex parte communications were not submitted by NCES nor by the Town, many pertained to pending legislation, and a number of alleged facts were published matters of public record. 


Appeal of Emily Huff

(New Hampshire Department of Health and Human Services)

No. 2005-856

November 28, 2006

Vacated and remanded


  • Whether the Administrative Appeals Unit (AAU) of the Department of Health and Human Services (DHHS) erred when it included distributions from a special needs trust as income for the purpose of determining Medicaid eligibility. 
  • Whether the AAU erred in denying the petitioner’s motion to supplement the record with DHHS’ Medicaid eligibility policies.
  • Whether AAU violated the petitioner’s due process rights by alleged improper rule making and reliance on unwritten rules.


In 1972 Congress changed the parameters of states’ participation in Medicaid programs.  The benefits that a state provided under the new program were required to be in accordance to the state’s plan in place on January 1, 1972, and the plan must have been approved by the federal agency.  In this matter, the AAU hearing officer decided that some of the expenditures from the petitioner’s special needs trust constituted income for the purpose of determining the amount of the petitioner’s Medicaid eligibility.  The officer relied exclusively on New Hampshire Administrative Rule He-W 654.04(b) (10) for support of this decision because she did not have evidence of the status and provisions of New Hampshire’s Medicaid law in 1972. 


The Court agreed that the record showed both sides had submitted portions of rules and manuals that allegedly existed in 1972, but that the status of New Hampshire’s Medicaid plan in 1972 was unclear.  The Court found that the hearing officer’s decision to apply the administrative rule without answering the questions of what Medicaid plan the state authorized in 1972 - and whether it was in accord with federal law - was an error. Thus the decision must be vacated and the matter remanded to supplement the record with the January 1, 1972 plan in order to adjudicate the petitioner’s claim.


Appeal of Tracy Waterman

(New Hampshire Personnel Appeals Board)

No. 2005-592

November 30, 2006



  • Whether the Personnel Appeals Board (PAB) decision was clearly unreasonable or unlawful where it found that the use of a polygraph test in an internal investigation of a state trooper was lawful, and ordered the trooper terminated for her refusal to take the test.


The petitioner, a state trooper, was investigated for an allegation that she had made threatening statements against superior officers.  When ordered to take a polygraph test, she refused, and was terminated for willful insubordination.  Pursuant to the Division of State Police (Division) professional standards of conduct, an employee may be found willfully insubordinate for deliberately or intentionally disobeying a lawful order.  The petitioner argues that the order was unlawful because it required the use of a polygraph test, which is unreliable, and that the order was motivated by retaliation. 


In a case of first impression, the Court held that an order requiring a state trooper to take a polygraph test, made pursuant to the Division standards of professional conduct, is a lawful order.  The Court looked to other jurisdictions for guidance: other courts have concluded that polygraph examinations of police officers are justifiable because a police officer “must be above suspicion of violation of the laws that he is sworn to enforce,” and a police department must be maintained with the “highest integrity and beyond suspicion.”  D. Nagle, The Polygraph in the Workplace, 18 U. Rich. L. Rev. 43, 68 (1983); Eshelman v. Blubaum, 560 P. 1283, 1285 (Ariz. Ct. App. 1977).  The test is further supported in the interest of resolving questions of an officer’s conduct promptly.  Nagle, supra at 68.  An Ohio court noted specifically that polygraph tests “can be a useful tool in internal department investigations of police misconduct,” even though test results are not admissible for proof of guilt or innocence in a criminal trial.  City of Warrensville Heights v. Jennings, 569 N. E. 2d 489, 492 (Ohio 1991). 


The Court discussed the employee’s protections from abuse of use of the tests.  First, the Division’s standards of professional conduct specifically allow for the use of the polygraph examination, but also mandate that the examination “shall be specifically directed and narrowly related to the matter under investigation.”  Section 26-E.5.1 (B)(6).  The standards further require the use of the “Garrity Warning” informing the accused that the purpose of any investigation is to determine whether discipline should be imposed, that responses to questions will not be used against him in any criminal proceeding, and that refusal to answer questions or to answer truthfully may result in termination.  Section 26-E.5.1 (B)(4)(5); see Garrity v. New Jersey, 385 U.S. 493 (1967).


The Court found there was evidence in the Division director’s testimony to uphold the PAB’s finding that the order was not motivated by retaliation against the Petitioner. 


Property Law/Quiet Title


Richard Porter v. Kevin Coco

No. 2005-715

November 3, 2006

Reversed and remanded


  • Whether the trial court erred in granting summary judgment that upheld a quiet title decree ordered in 1982;
  • Whether the original quiet title decree bars a subsequent claim because it is a collateral attack, or whether the trial court in 1982 had jurisdiction over abutting landowners so as to bind them and their successors by the decree.


In 1982 the Therriaults’ property description included “five acres of Clough land” and a description that included the 2.2 acres that are disputed in the present action.  In 1982 the Willeys held the deed to twenty-three acres of land that abutted the Therriaults’, and also included a description of the disputed land. That year the Therriaults filed a petition for quiet title naming persons in their own chain of title as defendants. A guardian ad litem appointed by court in the quiet title action informed the Therriault’s attorney of the Willey’s possible interest; the attorney produced a letter allegedly informing the Willeys of the action, and notice of the petition was published in local newspapers but the Willeys were not named as defendants and did not appear at the hearing.  The court granted the Therriaults’ petition and issued a decree quieting title to the five acres.  In 1986 the Therriaults conveyed the property to the Cocos.    In 2002, the Willeys conveyed the land to the Porters and during a 2002 property survey, the Porters discovered that 2.2 acres of land described on their deed was in dispute and brought a petition against the Cocos for quiet title and to establish boundary lines for the land.  Summary judgment was granted to the Cocos.   


The Court found that the trial court’s summary judgment was in error because material facts were in dispute as to the propriety of the quiet title decreed in 1982.  A petition for quiet title “ . . . shall name the person or persons who may claim such adverse estate or interest.”  RSA 498:5-a.  Any necessary party not named in an original petition is not bound by any forthcoming judgment. Id.  The Cocos argued that the Willeys were not named in the original petition because “they were not identified as having any interest in the Coco property.” The Court found that the record reflected contrary evidence, specifically the statement by the original GAL. 


The Cocos also argued that the Porter’s petition was barred because it was a collateral attack on a prior judgment. While the trial court addressed the issue of notice to the Willeys in 1982 and found that the Therriaults had acted reasonably, the Supreme Court said that sufficiency of notice was not the issue. The Court found that the Porters were not bound by the prior judgment because the 1982 court never had jurisdiction over the Willeys: although the Willeys were known to have an interest in the land, they were not expressly named in the petition as mandated by RSAA 498:5-a; their potential interest was not articulated in the claim; and, they were not at the quiet title proceeding.  Thus, the Court concluded, the Porters may collaterally attack the 1982 title decision and the Cocos may not be awarded summary judgment.  


Constitutional Law/Trial Procedure


The State of New Hampshire v. Clinton Brown

No. 2005-461

November 3, 2006



  • Whether the trial court erred when it failed to declare a mistrial where one juror was found to have engaged in misconduct and was dismissed.
  • Whether the trial court’s decision that any prejudice to the jury was harmless beyond a reasonable doubt deprived the defendant of his state and federal constitutional rights to an impartial jury.


On the third day of the defendant’s jury trial for incest and felonious sexual assault, the court learned that Juror No. 6 allegedly told other jurors about her lunch-hour observations of trial witnesses. The court conducted a voir dire of the juror in question, then a voir dire the entire panel, then a further voir dire of the juror who originally reported the communication.  Following the voir dire, the court determined that Juror No. 6’s misconduct was presumptively prejudicial, and she was excused.  The court further found beyond a reasonable doubt that the misconduct would not prejudice the remaining panel.   The defendant moved for mistrial, which was denied. 


The Court examined relevant factors to determine whether the trial court’s finding that prejudice from Juror No. 6’s communications to the panel was harmless beyond a reasonable doubt constituted an unsustainable exercise of discretion.  The Court found that the record supported the trial court’s findings 1) that the juror had, at worst, expressed an opinion that other trial witnesses looked “normal”; 2) that the juror did not know which witnesses she observed and conveyed no identification to other jurors; and 3) that the jury was able to remain impartial and was not influenced by Juror No. 6’s communications.


Further, the State successfully supported its argument that the presumption of prejudice was harmless, where 1) Juror No. 6 did not discuss the case at hand with other jurors or the witnesses; 2) although the juror knew the witnesses were connected to the case she did not know who they were; 3) there was no reason to discredit testimony of other jurors who said they simply did not hear anything at all; 4) there was no evidence that the juror’s contact with the witnesses and her communications to the panel occurred over a prolonged period of time; and 5) the incident occurred on the  second day of trial and only five of eleven witnesses had been called (the court contrasted this to a finding of mistrial in State v. Rideout where juror misconduct occurred during deliberations, and one half hour before the jury found the defendant guilty). 


Where the finding that any prejudice was harmless beyond a reasonable doubt was upheld, there was no error in the trial court’s denial of the defendant’s motion for mistrial.  The Court reached the same conclusion under the Federal Constitution as the State Constitution, where the Federal Constitution does not offer the defendant any greater protection that the State Constitution.  


Res Judicata


Randall Meier v. Town of Littleton

No. 2005-399

November 3, 2006

Reversed and remanded


  • ·Whether the trial court satisfied the elements necessary to dismiss the plaintiff’s suit on the grounds of res judicata.


The original suit arose from a traffic accident where the plaintiff struck two pedestrians, killing one.  The victim’s husband, Zolton, sued all the parties in this matter (Mr. Meier, the Town of Littleton, and the State of New Hampshire) for personal injuries and the death of his wife. The case settled before trial and all parties stipulated to docket markings: “Neither party.  No costs.  No interest. No further action for the same cause.”  Zolton executed releases in favor of the all defendants but Meier was not asked for any release from his co-defendants.


It was alleged in the original suit that the crosswalk where the Zoltons were hit was improperly designed.  Meier initiated an action against the town and state shortly after the docket markings entered, claiming emotional damages and loss of income for the alleged negligence in creating the defective crosswalk. The court granted the town and state’s motion for dismissal on the grounds of res judicata.  


For the doctrine of res judicata to preclude litigation in a later case, three elements must be met: 1) the parties must be the same or in privity with one another; 2) the same cause of action must be before the court in both instances; and 3) a final judgment on the merits must have entered in the first action.  In re Juvenile 2004-637, 152 N.H. 805, 808 (2005). 


The Court found that this case and Zolton were not actions between the same parties because ‘the same parties’ means adversarial parties, and where the parties in this matter were prior co-defendants, they were not formally on the opposite side of the prior issue.  Nor was the cause of action the same in both instances: Zolton’s cause of action was the right to damages for alleged negligence that caused his injuries and his wife’s death; Meier’s cause of action was his right to recover from the defendants for their alleged negligence respective to the crosswalk construction. Although the docket markings were a final judgment for the purpose of applying res judicata, failure of the first two elements precluded res judicata from barring the plaintiff’s suit.  According, the trial court erred in its motion to dismiss. 


Civil Procedure/Taxation of Costs


Carlos L. Martinez v. Laura Nicholson

No. 2005-640

November 22, 2006



  • Whether Superior Court Rule 87 applies to equity actions so that taxation of costs was applicable to an adverse possession claim;
  • Whether only the presiding judge with direct knowledge of the proceeding may rule on the assessment and determination of reasonableness of costs;
  • Whether the expert witness was reasonably necessary to the litigation, as required for taxation of costs for expert witnesses under Rule 87.
  • Whether the expert witness costs assessed were directly related to the expert witness’s appearance.


Martinez prevailed in a petition for quiet title in an adverse possession claim against Nicholson.  Pursuant to Superior Court Rule 87, the prevailing party in a civil suit is allowed certain costs and fees.  Martinez was awarded $3730.69 in costs for a surveyor and an expert. 


The Court referenced Superior Court Rule 116 providing that court rules applicable to civil cases shall also apply to equity actions, so far as applicable, and Rule 87 did apply to the underlying equity action.


The Court found that Rule 87 does not mandate that the original presiding judge should preside over a post-trial motion.  Nicholson did not cite any other authority for her claim nor did she claim that the presiding judge did not have the opportunity to review the record as necessary to issue a ruling.  Accordingly, there was no error.


The Court found that the trial court could have reasonably relied on an expert witness surveyor’s testimony to make its final decision on the location of the boundary lines, where the court found that the surveys of the two parcels done by the parties’ surveyors were equally arbitrary and not reliable in support of a final determination. 


The Court found that the costs awarded to Martinez were accrued in accordance with its rule that costs allowed for expert witnesses must be directly related to the expert’s appearance and testimony in court.  There was no evidence that the costs related to pre-trial work.




Michael Corcoran v. Craig Harmon

No. 2005-726

November 28, 2006

Reversed and remanded


  • Whether the trial court erred when it determined that the withdrawal of a decision by an arbitration panel precluded review of the decision by the court. 


Parties arbitrated a dispute over liability for an automobile collision; each side engaged one arbitrator and they selected a neutral third. The panel decided in the defendant’s favor.  After the decision, and after the plaintiff’s suggestion of a second conflict of interest on the part of the neutral arbitrator, the panel withdrew the decision.  The defendant sought to have the decision confirmed by the trial court under RSA 542:8.  The trial court denied the motion saying there was no decision for the court to act on where it had been withdrawn.


Language of RSA 542:8 calls for superior court review of an arbitrated “award.” The Court found that the dictionary definitions of “award” include “decision” and because the panel’s withdrawal of its decision was a final decision, the trial court had statutory authority to review the withdrawal.   The plaintiff’s argument that review of the decision to withdraw had not been preserved for appeal because the defendant only asked for confirmation of the original award was addressed by the Court’s determination that “implicit in the request to confirm the withdrawn decision is a request that the trial court vacate the panel’s decision to withdraw it.” 


Municipal Law


Arnold Goldstein v. Town of Bedford

No. 2005-598

November 22, 2006



  • Whether the plaintiff has standing to bring a writ of mandamus in a zoning decision.


The plaintiff appealed a decision of the Bedford Zoning Board of Adjustment (ZBA) to not bring an action against a resident who the plaintiff alleged violated the local zoning ordinance. 


Pertinent statutes limit standing for all levels of review of zoning decisions – to the ZBA, on rehearing to the ZBA, and to the Superior Court – to “persons aggrieved.” The Court found that standing to bring a writ of mandamus in such matters was also limited to persons aggrieved.  The plaintiff conceded that he was not a person aggrieved, where he could show no direct interest in the outcome of the proceedings, and only that he was a concerned resident and taxpayer. The Court held that to allow the plaintiff standing to bring an appeal or a mandamus action would disregard legislative intent; “zoning statutes are primarily intended to protect the public at large and not the interest of individuals.”  


James Boyle, Trustee,

150 Greenleaf Avenue Realty Trust v. City of Portsmouth

No. 2005-432

November 22, 2006

Reversed and remanded


  • Whether the trial court erred when it interpreted the term “materials” in a zoning ordinance, and whether the court thus incorrectly determined that the plaintiff would require a variance to setback provisions to keep his motor vehicles on an outdoor lot.


The plaintiff operated a used motor dealership abutted on three sides by residential areas.  Local ordinance prohibited outdoor storage within 200 feet of a residential district; the language of the ordinance defined outdoor storage as “ . . . materials on a lot without benefit of a structure . . ..” 


The Court looked at the word ‘material’ according to “the common and approved usage of the language,” and consulted Webster’s Dictionary and other parts of the zoning ordinances for a definition of the word.  The dictionary supported a conclusion that ‘material’ is basic matter from which a whole is made, and materials combine with other materials to make a whole — such as a motor vehicle.    The ordinances consistently distinguished “material” from “goods” – and motor vehicles were properly considered “goods.”   The trial court’s decision requiring a variance for the storage of motor vehicles was reversed and the case was remanded. 


Justices Hicks and Duggan dissented, disagreeing with the majority’s interpretation of the term “material.” They opined that “material” did include motor vehicles, subject to a variance from the setback requirements.  The Justices’ interpretation was based, in part, on the presumption that the intent of the ordinance was the protection of the aesthetics and safety in residential areas.  



Torts/Corporate Freeze-Out/Statute of Limitations


Townsend D. Thorndike v. Charles E. Thorndike

No. 2005-737

November 30, 2005



  • Whether the tort of corporate freeze-out is a continuing tort and thus the trial court erred when the petitioner’s complaint was barred by the statute of limitations.  
  • Whether the trial court may isolate and consider claims that allegedly occurred within the statute of limitations.


Petitioner and respondent are brothers and equal shareholders in what was exclusively a family business for some forty years.  In 1995, the parties’ parents and only other shareholders gave day-to-day control of the business to the respondent.  The petitioner filed suit on February 18, 2005 alleging that the respondent effectively froze him out of the business.  The case was dismissed, the trial court finding that all the petitioner’s claims arose from facts known more than three years prior to filing – or outside the statutory time limit.  On appeal, the petitioner argues that the respondent’s alleged acts such as diluting the petitioner’s voting power, not paying the petitioner a salary, and general ban of the petitioner from business operations were part of a freeze-out plan, and thus constituted a continuing tort, and the statute of limitations had not yet tolled.


The Court noted that the tort of corporate freeze-out has not been explicitly adopted in New Hampshire.  The Court assumed without deciding that the tort exists, then looked to other jurisdictions for precedent and guidance on the doctrine of continuing wrong.   The Court ultimately concurred with the reasoning of the Massachusetts Supreme Judicial Court, which held in a case with similar facts that the act of corporate freeze-out arose at a specific time – there, when a plaintiff was notified of shareholder’s decision to exclude him – and thus was not a continuing wrong.  In this matter, even if all the respondent’s disputed actions continue, they all originated at a specific time, and that time was prior to the statutory limit of the plaintiff’s petition.


The Court declined to address the petitioner’s argument that actions occurring after
February 18, 2002 constituted a freeze-out and were within the statute of limitations because the petitioner had not preserved that issue for appeal.    


Criminal Law


The State of New Hampshire v. John Crie

No. 2005-568

November 28, 2006



  • Whether the trial court’s jury instructions were erroneous.
  • Whether evidence supported finding the defendant’s possession of deadly weapons beyond a reasonable doubt.
  • Whether the three-year mandatory minimum sentence provided in RSA 651:2, II-g applied to an underlying felony of negligent homicide that did not involve a weapon, and whether the sentence applied to the defendant’s conviction of being a felon in possession.
  • Whether the defendant’s due process rights were violated. 


The defendant was convicted of negligent homicide in 1988.  In 2004, a search warrant resulted in police finding four firearms in a gun locker in the defendant’s home.  He was indicted on four counts of being a felon in possession of a firearm pursuant to RSA 651:2, II-g.


The Court found the trial court’s jury instructions adequately stated the law that applied to the case, including the applicable law defining control that the defendant requested to supplement with his own language.


The Court found that the evidence was sufficient beyond a reasonable doubt to establish the defendant’s possession of the deadly weapon because he told a trooper at the scene that there were three rifles inside the house, and because the defendant’s wife testified that she and the defendant owned the rifles and exercised control over them and both had the lock combination and access to the gun locker.  These facts would allow the jury to find the defendant had dominion and control – possession – over and of the firearms. 

The evidence is examined in the context of all the evidence rather than in isolation and circumstantial evidence and inferences also may support a finding of guilty beyond a reasonable doubt. 


The Court found the language of RSA 651:2, II-g to be clear and unambiguous, and the element of possession of a firearm applied to his current conviction for felon in possession – not the underlying felony.  The defendant’s argument that the legislature did not intend the mandatory minimum sentence of RSA 651:2, II-g to apply to convictions of felon in possession was similarly refuted by the Court’s reading of the plain language of the statute, and its finding that the defendant’s actions satisfied the three elements of 1) felony conviction; 2) one element of the felony conviction is possession of a deadly weapon; and 3) that weapon is a firearm.  The defendant’s argument that the indictment named “dangerous” rather than “deadly” weapon was not dispositive; any ambiguity was resolved by the elements listed in the indictments. 


The defendant’s due process argument was founded on the legislative history of RSA 651:2, II-g and information in sentencing documents that were not provided to the trial court.  The Court restated its position that the statutory language was unambiguous thus it need not examine the legislative history, and agreed with the State that where the sentencing documents were not provided to the trial court, the documents could not properly be before the Supreme Court at the time of the appeal. 


The State of New Hampshire v. Ethan Vassar

No. 2005-567

November 21, 2006

Reversed and remanded


  • Whether the trial court erred when it did not give the jury a self-defense instruction.
  • Whether the trial court erred when it refused to allow admission of evidence of the deceased’s prior bad acts.


The defendant was convicted of provocation manslaughter in the shooting death of his brother.  At the jury trial, the jury heard testimony of the time period up to and including the shooting that described, among other actions, the brother’s destruction of property and threatening language towards his mother and the defendant. 


At the defendant’s request, the jury must be instructed in a specific defense if there is some evidence – “more than a minutia or scintilla” – to support a rational finding in favor of the defense.  The Court found that the evidence supported the defendant’s request that a self-defense instruction be given because the defendant reasonably believed his brother was about to use “unlawful, deadly force.”  RSA 627:4, II (1996).   The evidence included testimony that the brother repeatedly threatened to kill the defendant and his mother, and, as the brother went to his garage room, to kill any police who might arrive; that the defendant heard his mother begging for her life, which he had never heard before; that the defendant knew the brother had a gun in his room and when the defendant went to the room the brother was crouched so the defendant could not see his hands.  The Court concluded that the trial court erred when it did not allow jury instruction in self defense or defense of others. 


In State v. Dukette, 145 N.H. 226, 239 (2000) the Court found that a defendant’s state of mind was admissible as one of the “other purposes” for which evidence of prior bad acts may be admissible in a self-defense case, but had never addressed the admissibility of a victim’s state of mind for a defendant’s self-defense justification.  The Court noted that other states that follow the Federal Rules of Evidence have used Rule 404(b) to admit evidence of victim’s bad acts to shed light on a defendant’s state of mind.  The Court held that the principles of Dukette applied in this case, and evidence of the victim’s state of

mind could be offered to “shed light on the defendant’s state of mind . . .” The Court held that evidence barred by the trial court may be admissible under Rule 404 (b).  


Motor Vehicle License Suspension


Daniel Proulx v. Director,

New Hampshire Division of Motor Vehicles

No. 2005-546

November 3, 2006



  • Whether the plaintiff was adequately advised of the consequences of refusing to submit to a test to determine blood alcohol concentration.


The plaintiff’s vehicle was stopped after an officer observed it crossing the double yellow line.  The plaintiff was arrested for driving under the influence, and the officer read the administrative license suspension (ALS) form to the plaintiff.  The plaintiff asked the officer about the consequences of refusing to take the Breathalyzer test and the officer replied that his license “could” be suspended.   The officer read the ALS form to the plaintiff again after transporting him to the hospital; the plaintiff read the form and initialed each line.  


The Court found there was adequate evidence in the record to confirm that the officer did inform the plaintiff of the consequences of refusing to submit to a test, as required of the officer by RSA 265:87.  The officer read the form to the plaintiff twice and the plaintiff initialed each paragraph of the form and signed where the form stated, “I have been informed of these rights.”  Any misunderstanding of the officer’s use of the word “could” would be cured by the second reading of the form. 




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