New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

A confidential, independent resource for NH lawyers, judges and law students.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - July 20, 2007

NH Supreme Court At-a-Glance: June 2007



Administrative Law –
Provider Rate Appeals



Petition of Chase Home for Children, et al. , No. 2006. 070, 2006 -219

June 8, 2007

Affirmed in part and reversed in part


  • Whether two New Hampshire Department of Health and Human Services Administrative Appeals Unit Hearing Panels erred in setting the rates by which the petitioners would be compensated by the State for statutory services rendered.


The petitioners are New Hampshire residential childcare providers who furnish residential placements for children who are delinquents, children who have been abused, and children in need of services. The New Hampshire Department of Health and Human Services (DHHS) is obligated to set annual rates at which such residential childcare providers will be compensated by the State for the services they provide.  In fiscal years 2004 and 2005, the petitioners appealed the rates set by DHHS to two different Hearing Panels.  On panel heard the appeal of the FY 2004 rate calculations, and another heard the subsequent appeal of the FY 2005 rate calculation.  Both Panels determined that DHHS had incorrectly calculated the payment rates and ordered corrective adjustments, upward, of the rates.  However, both Panels ruled that they did not have the authority to order DHHS (through DCYF) to make retroactive payments to the petitioners at the corrected rate levels.  Notwithstanding this, the 2005 Hearing Panel ordered DHHS to essentially prioritize how it would spend the balance of is FY 2005 budget amongst the petitioners if it did not have sufficient funds to cover the adjusted rate levels.


The Court agreed with the Hearing Panels and held that the hearing panels lacked authority to order retroactive payments.  The Court held that the Hearing Panels acted within their statutory authority in recalculating the rates.  It also held that the Hearing Panels lack authority to order DHHS to prioritize or appropriate its funds prospectively and vacated that part of the Hearing panel order.  The Court declined to address the petitioners’ claims for the retroactive payment amounts because that issue was not ripe for appellate review.


Petition of New Hampshire Division of Children, Youth, and Families (New Hampshire Department of Health and Human Services),  No. 2006-510

June 15, 2007

Affirmed in part and vacated in part


  • Whether the New Hampshire Department of Health and Human Services Administrative Appeals Unit Hearing Panel erred in adjusting a compensation rate for providers
  • Whether the New Hampshire Department of Health and Human Services Administrative Appeals Unit Hearing Panel acted illegally when it ordered DHHS to make certain payments to the providers.


The Court, after reviewing the case released one week earlier ( Petition of Chase Home for Children), affirmed the rates as set by the Hearing Panel, and vacated the order issued by the Panel compelling DCYF to make certain payments for FY 2006.  The Court reiterated its earlier holding that the Hearing Panel has the authority to set rates, but not order DHHS to make payments.


Attorneys Fees


Koor Communications Inc. v. City of Lebanon,  No. 2006-396

June 22, 2007



Whether the trial court erred in denying the plaintiff’s Motion for Attorney’s Fees


The plaintiff was the holder of a Federal Communications Commission (FCC) Permit to build an AM broadcast station with 266-foot radio transmitter towers in Lebanon. The zoning ordinance of the defendant, the City of Lebanon, effectively prohibited all new radio towers in Lebanon. The plaintiff applied for a variance, but was denied.


The plaintiff filed a petition for declaratory judgment claiming, among other things, federal preemption, and violation of free speech rights and the express requirements of federal and state law allowing radio broadcasts.  Upon the case’s first appeal to the Supreme Court in Koor Communication v. City of Lebanon, 148 N.H. 618 (2002), the Court remanded the case because it concluded that the City’s zoning ordinance was preempted by federal law.


On remand, the plaintiff moved for attorney’s fees, claiming that it was a prevailing party entitled to attorney’s fees pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988.  The trial court denied the requested and the Court affirmed, holding that the plaintiff had succeeded in its federal preemption claim, it had not raised any claims under 1983 or 1988 that entitled it to an award of attorneys fees.  The Court found that the basis for the preemption doctrine, the supremacy clause in the federal constitution, did not by itself give rise to claims or enforceable rights under sec. 1983.


Consumer Protection


William Becksted v. J.P. Nadeau  No. 2006-438

June 26, 2007

Reversed and Remanded


  • Whether the trial court erred by granting a motion for a directed verdict on the plaintiff’s Claim under RSA 358-A


The plaintiffs are carpenters whom the defendants hired to build a second-story apartment for Justin Nadeau above the Nadeau Law Offices.  The plaintiffs began work on the project in May or June 2004. In July, J.P. Nadeau began representing the plaintiffs in an unrelated legal matter. The plaintiffs continued performing construction work for the defendants and submitted invoices every two to four weeks.  After the plaintiffs submitted a final invoice, the defendants submitted an invoice to the plaintiff’s for legal services rendered and indicated that it was not going to pay the plaintiff for the construction services performed.  After it was discovered that the defendant’s bill for legal fees was inflated by more than double, the plaintiff sued alleging breach of contract, a violation of RSA 358-A and quantum meruit.


At the close of the evidence, the trial court granted the defendant’s motion for a directed verdict on the RSA 358-A claim.  The Supreme Court reversed indicating that there was sufficient evidence for a reasonable trier of fact to find for the plaintiff on that claim.  The Court cited to the letters from the law firm that could be interpreted as threats and deceptive acts that would pressure the plaintiffs to resolve their contractual dispute.  The Court also confirmed that a plaintiff in a claim under RSA 358-A is not required to prove actual damages, because the statute provides for $1000 in damages absent proof of actual damages.




State of New Hampshire v. Phillip Morris USA, Inc.  No. 2006-621

June 22, 2007



  • Whether the trial court erred in granting defendant’s motion to compel arbitration and dismissing a petition for declaratory judgment


Several years ago, New Hampshire, along with other states and jurisdictions, filed suit against a number of tobacco manufacturers, alleging that they were engaging in wrongful advertising and marketing of cigarettes and other tobacco products. In November 1998, the State entered into the Tobacco Master Settlement Agreement (MSA) with four domestic tobacco manufacturers, known as the Original Participating Manufacturers (OPMs).  The defendant is an OPM.  The MSA provided for arbitration of “[a]ny dispute, controversy or claim arising out of or relating to calculations performed by or any determinations made by, the Independent Auditor.”


In simple terms, the Independent Auditor’s task is to determine what adjustments, if any, are required to be made to the payments from the OPMs to the plaintiff-states under the MSA.  In this case, a dispute arose about the manner in which the Independent Auditor was calculating the adjustments.  The State filed suit seeking declaratory judgment concerning the manner in which the Independent Auditor was making the calculations.


The Court held that the arbitration clause was clear and unambiguous, and that the suit filed by the State was subject to arbitration clause in the MSA.  Therefore, the petition for declaratory judgment was appropriately dismissed.




State v. Ruff, No. 2006-180

June 8, 2007



  • Whether there was sufficient evidence to convict the defendant of criminal trespass (RSA 635:2) for refusing to leave her mother-in-law’s house after being ordered to leave by one of the residents of the house.


The defendant had an acrimonious relationship with her mother-in-law.  On one occasion, the defendant suddenly entered her mother-in-law’s home unannounced and uninvited. A heated dialogue ensued between the defendant and her mother-in-law. Shortly thereafter, another long-term resident of the house arrived home and immediately interceded. He commanded the defendant to leave, but she refused. The defendant was physically removed from the home several times, but repeatedly managed to force her way back in. When she was removed a final time, she got into her car and left. 


At trial, the defendant argued that the long-term resident lacked actual authority to order her to leave the premises, and that she was not ordered to leave “by the owner or other authorized person” as required by RSA 635:2, III(b). The Court disagreed and held that that a lawful resident of a dwelling has actual authority to exclude a non-resident from the home in which he or she lives, and thus constitutes an “authorized person” under the law.


In Re Grand Jury Subpoena  No. 2006-640

June 13, 2007



  • Whether the trial court erred in denying the petitioner’s Motion to Quash a subpoena requiring him to testify before the grand jury.


The petitioner, a State Correctional Officer, was the union representative for another Department of Corrections employee, a social worker, who was being investigated for bringing contraband into the State Prison.  The petitioner investigated the allegations in his capacity as the social worker’s union representative, interviewing the social worker and several other individuals.

            The State subpoenaed the petitioner to testify before the grand jury as to what the social worker and others told him during his investigation. The petitioner moved to quash the subpoena on the ground that his communications with the social worker and others were protected by a privilege between a union representative and a grievant.


The Court affirmed the denial of the motion to quash the subpoena and declined to recognize a common law privilege that shields communications between union representatives and union employees from a grand jury subpoena.


State v. Shaun Brown, No. 2006-290

June 22, 2007

Reversed and remanded


  • Whether the trial court erred in dismissing a misdemeanor count of providing false information to secure a firearm in violation of RSA 159:11 (2002).


Brown attempted to purchase a nine millimeter handgun. He filled out the required Federal Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473, a federal gun purchase application form. Question 11.i. on the form inquires of the permit applicant: “Have you ever been convicted in any court of a misdemeanor crime of domestic violence?” Brown responded “no” to the question despite his previous conviction for violation of an abuse prevention order.


The State charged Brown with a class A misdemeanor for giving false information to secure a firearm in violation of RSA 159:11. Brown attempted to plead guilty to the State’s charge. However, the court rejected his plea, ruling that it lacked jurisdiction because RSA 159:11 only criminalizes conveying false information that is pertinent to the acquisition of a firearm under New Hampshire law (as opposed to the ATF form).


The Court reversed holding that the statute does not limit the type of false information that it criminalizes when conveyed in the acquisition of a firearm, and that the plain language of RSA 159:11 criminalizes conveying false information, including information upon a federal form that is false based upon federal definitions of the form’s terms.


State v. Jonathan Polk, No. 2005-921

June 22, 2007



  • Whether the trial court erred in concluding that the offense of DWI is a strict liability offense, relieving the State of the burden of having to prove a culpable mental state.


Mr. Polk was pulled over in Manchester after a short chase with the police.  He was arrested and charged with Aggravated DWI for attempting to elude the police while driving impaired by alcohol.  At trial, he asked that the jury be instructed that the State had to prove that he knew the police were behind him and that it was his intent to elude them.  The trial court denied his request.


The Court concluded that DWI offenses are strict liability offenses and that aggravating factors that serve to enhance the penalties are not material elements of the offense.  Therefore, the State is not required to prove a mental state with respect to any level of DWI offense.


State v. Joseph Haas  No. 2006-291

June 26, 2007



  • Whether the trial court erred in requiring the defendant to reimburse the State for counsel fees incurred when counsel was appointed to represent him, even though the charges were eventually dismissed.

The defendant was charged with improper influence pursuant to RSA 640:3 (1996) (amended 2006), and counsel was appointed to represent him. The trial court dismissed the charge, ruling that the statute was unconstitutionally overbroad. After dismissal, the defendant was ordered to reimburse the State under RSA 604-A:9 (2001) for the costs of his legal representation.  The defendant appealed, arguing that the “recoupment statute” is unconstitutional.


The Court found that the State has a legitimate interest in recouping expenses that it expends in providing court appointed counsel and resources to indigent criminal defendants.  Insofar as it does not implicate a fundamental right, the Court applied the rational basis test to ascertain the constitutionality of RSA 604-A:9.  Applying the test, the Court found that there was a rational basis for the recoupment statute and that it served a legitimate governmental purpose.  The Court specifically noted that the statute only requires reimbursement from those that can afford to pay, and that RSA 604-A provides a statutory mechanism that accounts for a defendant’s financial condition in recouping expenses.


Family Law


In the Matter of State of N.H. and Estate of Frank S. Crabtree III

In the Matter of Estate of Katherine Crabtree and Estate of Frank S. Crabtree III

No. 2006-329

No. 2006-324

June 15, 2007

Affirmed in part, vacated in part and remanded.


  • Whether the trial court erred in denying dollar for dollar credit toward child support obligations based upon payments of Social Security dependency benefits to the children for whom the decedent, Frank S. Crabtree, III (Crabtree), was obligated to provide child support.
  • Whether the trial court erred in refusing to vacate the garnishment of Crabtree’s social security benefits, and a lien placed on his personal bank account.


The Court held that Crabtree was not entitled to “dollar for dollar” credit towards his child support obligations because he never requested a modification of his child support order from the trial court.  Crabtree asserted that he was automatically entitled to the credit and that he was not required to seek modification of the child support order to get the award.  The Court disagreed, reasoning that once social security benefits were awarded to him, his income increased and the trial court would have been required to recalculate his child support obligations.  The Court reaffirmed its procedural requirement that a modification of the child support order is required before the credit can be claimed. The Court also found that the garnishment of his Social Security benefits was lawful because the State had provided sufficient advanced notice to him.


With respect to Crabtree’s claim that the lien placed on his personal bank account was unlawful, the Court remanded the case to the trial court for a determination of whether the account was exempt from the lien under RSA 511:2 because the trial court’s order did not address any of the statutory exemptions.




Murley v. Hanover Hanover Insurance Co., No. 2006-613

June 8, 2007



  • Whether trial court erred in holding finding that an exclusion in the policy issued by the defendant was void and ordering the defendant to pay the plaintiff $5,000 for medical payments under the underinsured motorist provision of the policy where the defendant had already paid the $5,000 sum under a different provision of the policy.


The insurance policy sold by the defendant permitted duplicate medical benefits payments under a liability claim, but prevented duplicate medical benefits payments under an uninsured motorist claim.  The Court held that this exclusion violated RSA 264:15 because the statute requires uninsured motorist coverage to be equal to the liability coverage elected.  By inserting the exclusion in the policy, it was possible for an insured to be paid a lesser amount of money if injured by an uninsured, or underinsured, motorist.  The Court reasoned that such an “inequity violates RSA 264:15’s legislative intent to allow a person to protect himself against injury from uninsured motorists to the extent that he protects himself against ordinary personal liability.”


Worker’s Compensation


Appeal of Todd Malouin

June 13, 2007

Vacated and Remanded


  • Whether the petitioner’s injury, sustained during a private weightlifting session at the employer’s fitness facility, was a compensable work-related injury.


Petitioner was employed by a fitness club as a personal trainer.  Personal trainers at the club were encouraged by the employer to exercise at the club on personal time to promote their personal trainer services and business.  During a personal “work out” the petitioner suffered a severe injury.  In overturning the New Hampshire Compensation Appeals Board, the Court found that that the petitioner reasonably expected that personal exercise workout at the club for an employer that both permitted and encouraged its personal trainers to perform such workouts while they were on duty in order to provide a direct benefit to the club by securing additional clients, was encompassed by the term “condition of employment” for the purpose of RSA 281-A:2, XI.  The Court concluded that such an activity was a compensable, work-related activity.




Town of Rye Board of Selectmen v. Town of Rye Zoning Board of Adjustment

No. 2006-598

June 26, 2007



  • Whether the trial court erred in holding that the Town of Rye’s Ordinance was preempted by the State’s Condominium Act, and whether the trial court erred in affirming the ZBA’s granting of a special exception to the intervener (“228 Maple”).


228 Maple owns a 1.29-acre parcel in Rye on which ten cottage-style buildings and one building containing a rental office and an apartment are located. The cottage-style buildings range in size and have been rented seasonally. The Town of Rye Zoning Ordinance (Ordinance) classifies the cottage-style buildings as “tourist cabins” or “tourist camps,” which are excluded from the general residential zone in which they sit. The cabins were constructed prior to Rye’s adoption of the Ordinance. Thus, they are prior non-conforming uses. Aside from not conforming to the use requirements, the cottages also do not conform to the lot-size requirements of the general residential zone.


228 Maple applied for a special exception and the ZBA dismissed the application because the Rye Ordinance did not permit the conversion of such cabins to condominiums.  On appeal, the trial court ruled that the town’s ordinance was preempted by the State’s Condominium Act (RSA 356-B).  On remand, the ZBA found that the proposed use would not result in a change in use, and granted the special exception.


The Rye Board of Selectmen appealed and the trial court affirmed the ZBA’s decision.  On appeal to the NH Supreme Court, the Court concluded that the town’s ordinance was in direct contradiction, or actual conflict with, RSA 356-B and affirmed the finding of preemption.  With respect to the special exception, the Court concluded that the ZBA’s determination that the conversion of the cabins to condominiums would not affect the use of the land was based in part upon 228 Maple’s agreement to restrict the condominiums to seasonal use only.  Thus, the Court agreed that the ZBA’s determination was lawful and reasonable.




David Ruoff is a graduate of Franklin Pierce Law Center, currently employed at Nixon Peabody where he practices Criminal Defense and Commercial Litigation.  Before joining Nixon Peabody, he was with the homicide unit at the NH Attorney General’s office.  Attorney Ruoff has been a NH Bar member since 1996.




Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer