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Bar News - August 10, 2007

NH Supreme Court At-a-Glance: July 2007




Blouin v. Sanborn & a., No. 2006-695

July 18, 2007



  • Whether the trial court’s denial of the defendants’ motions for judgment notwithstanding the verdict (JNOV) and remittitur constituted an unsustainable exercise of discretion.


The trial court did not engage in an unsustainable exercise of discretion when it denied the defendants’ JNOV motion.  There was conflicting evidence regarding whether the defendant’s status as a disclosed agent insulated him from liability on a negligent misrepresentation claim.  Where evidence adduced at trial is conflicting, a court must deny a JNOV motion.  Further, the Court upheld the JNOV ruling because the defendants failed to demonstrate how that the trial court’s ruling on a statute of fraud issue was erroneous as a matter of law.


Remittitur is ordered if a verdict is conclusively against the weight of the evidence.  Once the trial court has reviewed the amount of the verdict under this standard it will not be disturbed absent a showing that no reasonable person could have made the same finding. 


Civil / Forfeiture


In re Toyota Avalon VIN #4T1BJ18BXWU251611, No. 2006-567

July 19, 2007



  • Whether the trial court erred in granting the State’s petition for forfeiture of the defendant’s Toyota Avalon because (1) the State turned the prosecution of the defendant’s case over to the federal government; (2) the forfeiture violated the defendant’s plea agreement, and (3) the forfeiture was excessive in relation to the underlying offense.


(1)  The State court has jurisdiction over the forfeiture petition regardless of whether the State referred the defendant’s prosecution to the federal court.  RSA 318-B:17-b, IV(a) permits a forfeiture petition to be filed in a court having jurisdiction over any related criminal proceeding which could be brought as a result of a violation of the statute.  The Court also noted that even though the defendant pled guilty in federal court, double jeopardy does not bar the state’s civil forfeiture petition because RSA 318-B :17-b is a civil, non-punitive statute.


(2)  Where the defendant’s plea agreement expressly exempted civil consequences resulting from his guilty plea, the forfeiture action did not violate said agreement.


(3)  The trial court’s finding that forfeiture of the defendant’s vehicle was not excessive is supported by the record.


Constitutional Law


Bleiler v. Chief, Dover Police Department, No. 2006-426

July 18, 2007



  • Whether the trial court erred in upholding the Dover Police Chief’s decision to revoke the plaintiff’s permit to carry a concealed weapon because this impermissibly infringed upon the plaintiff’s state constitutional right to bear arms.


The plaintiff’s license to carry a concealed firearm was revoked by the Dover Police Chief after a determination that the plaintiff was not a suitable candidate to carry a concealed weapon.  The plaintiff appealed this decision to the District Court which affirmed it after finding that just cause existed to revoke the license, and that RSA 159:6-b did not infringe on the plaintiff’s right to keep and bear arms as guaranteed by the Second Amendment of the Federal Constitution and Part 1, Article 2-A of the State Constitution.  The plaintiff appealed.


Applying the “reasonableness test” in evaluating whether RSA 159:6-b unreasonably infringes on the state constitutional right to bear arms, the Court held that this statute merely regulates the manner of carrying weapons, and appropriately balances the compelling state interest in public safety with a reasonable regulation of the time, place and manner in which the state constitutional right to bear arms may be exercised.  Further, the Court held that the “just cause” standard adequately warns licensees that their license may be revoked if they use their weapons improperly or if they are found unsuitable to have such a license. 


In response to the plaintiff’s claim that RSA 159:6-b violated the vagueness doctrine, the Court held that the statute: (1) provides minimal guidelines so as not be vague on its face, and (2) gave a reasonable opportunity for an individual to know that his particular conduct was proscribed by the statute so as not to be impermissibly vague as applied to the plaintiff.


Constitutional Law / First Amendment


Snelling v. City of Claremont & a., No. 2006-315

July 18, 2007

Affirmed in Part, Vacated in Part and Remanded


  • Whether the Court should uphold a jury verdict in favor of the plaintiff on his claims for wrongful termination and violation of his rights under the First Amendment of the United States Constitution.


The plaintiff, a city assessor serving on the City’s Tax Increment Finance Committee, engaged in a series of interviews with a local newspaper reporter about the City’s tax system and indicated that some members of the city council were taking unfair advantage of the City’s tax abatement system.  These interviews were incorporated into a newspaper article.  Shortly after the article’s publication, the City Manager, after conferring with the City Solicitor, terminated the plaintiff.  The plaintiff’s termination letter contained seven reasons for the termination, one of which concerned his comments in the newspaper article.   The plaintiff filed an action alleging wrongful termination and a jury found in favor of him.  The jury’s award reflected compensation for past wages and benefits, mental and emotional distress, enhanced compensatory damages and punitive damages.  The jury awarded nothing for the plaintiff’s claim for future lost wages and benefits. 


The Court affirmed the jury’s damage award, finding that the plaintiff’s speech was protected because, though he spoke with a newspaper reporter about issues relating to taxation, this was not part of his official duties.  As a city assessor, the plaintiff was required to communicate with the public on any matters relating to the office’s procedures and techniques.  Thus, any comments regarding fairness of the tax system, or potential abuses of that system, do not fall within his duties as described in his job description.  The plaintiff was speaking as a citizen on a manner of public concern.  Further, the plaintiff is entitled to collect the damages awarded by the jury for lost wages and emotional distress without regard to the municipality liability cap contained in RSA 507-B:4.  The plaintiff prevailed on both his federal (§ 1983) and state claims of retaliation, but he is entitled to only a single recovery for his lost wages and emotional distress.  Because the plaintiff’s claim under § 1983 is not subject to the cap in RSA 507-B:4, he is entitled to collect the damages awarded to him by the jury.


The Court also found no error in the trial court’s determination that the City Manager was not entitled to qualified immunity.  Though the City Manager claimed that he relied on the advice of counsel, the City Solicitor was not fully informed of all the factual and legal issues surrounding this matter when he advised the City Manager.


Finally, the Court found that, during closing arguments, the defendants’ attorney appealed to the personal biases of the jurors by stating that the jurors, “their friends and relatives would have to pay for any judgment awarded, and that in particular, an award of front pay damages would burden them with paying for two salaries for the next twenty years.”  Because the defendants’ counsel improperly asserted unnecessary facts not in evidence, the jury’s award relating to the plaintiff’s future wages and benefits is vacated.


Consumer Law


Kelton v. Hollis Ranch, LLC, No. 2006-743

July 17, 2007



  • Whether the trial court erred in ruling that the Consumer Protection Act does not impose strict liability upon a seller found to have acted in good faith when it made its representations to the buyer.


In order to constitute a violation of RSA 358-A:2, a buyer must show that a seller had a degree of knowledge or intent that its representations are unreliable or untrue.  The plain language of the statute, in its use of the terms “deceptive” and “unfair”, underscore that it cannot be construed, either expressly or impliedly, to impose strict liability.




State v. Sharkey, No. 2006-085

July 13, 2007

Reversed and Remanded


  • Whether the trial court erred in denying a defendant’s motion to withdraw his guilty plea and vacate his conviction due to a claim of ineffective assistance of counsel based on that counsel’s misinformation regarding the collateral consequences of the defendant’s guilty plea.


The trial court unsustainably exercised its discretion by ruling that, though the defendant’s counsel misinformed him as to the collateral consequences of his guilty plea, this action did not support an ineffective assistance of counsel claim sufficient to vitiate the defendant’s conviction.  Defense counsel fails to supply effective assistance of counsel if:  (1) counsel grossly misinforms a criminal defendant client about the collateral consequences of pleading guilty; (2) the defendant relies on that advice in deciding to plead guilty; and, (3) but for that erroneous advice there was a reasonable probability that the defendant would not have pled guilty.  “Gross misinformation” is information that “creates an objectively significant discrepancy between what the defendant was told his collateral consequences would be, and what they actually became.”  This is tantamount to an “egregious error” and satisfies the first prong of the test for an ineffective assistance of counsel claim.


State v. Dupont, No. 2006-504

July 13, 2007



  • Whether an indigent defendant is automatically entitled to hearing transcripts at the State’s expense post-conviction and post-appeal.


The indigent defendant was not entitled to free hearing transcripts because:  (1) he did not file a motion seeking post-conviction relief before requesting the portions of the record relevant to his motion; and (2) he did not demonstrate a genuine need for the transcript.


Family Law


In the Matter of Maynard and Maynard, No. 2005-727

July 13, 2007



  • Whether the trial court erred in denying a wife’s repeated requests for alimony during divorce proceedings due to inconsistencies between Super. Ct. R. 185 and RSA 458:19 where the rule specifies the timing of a request for alimony in the original divorce proceedings and the statute permits such a request to be filed up to five years after the divorce.


There was no error in denying a wife’s repeated requests for alimony after finding her in default for failure to file a timely appearance and answer to her husband’s petition for divorce.  In resolving the wife’s contention that the Superior Court Rule 185 is contrary to RSA 458:19 (2004), the Court concluded that Rule 185 specifies the timing of a request for alimony in the original divorce proceeding, whereas RSA 458:19 permits such a request to be filed up to five years of the divorce.  Therefore, the Court concluded that a responding party’s failure to comply with Rule 185 may preclude an award of alimony in the original divorce decree.  However, the same party may request alimony post-divorce, pursuant to RSA 458:19 I.


In the Matter of Peirano and Larsen, No. 2005-604

July 20, 2007

Affirmed in part, Reversed in Part and Remanded


  • Whether the trial court erred in (1) denying the petitioner due process by preventing him from cross-examining some of the respondent’s witnesses and granting non-verified motions without a hearing; (2) allowing appointment of a Guardian ad Litem (GAL) in violation of RSA 458:17-a; (3) finding and ruling on issues of alimony, visitation, division of assets, continuation of a restraining order and fault-finding, and (4) ordering the sale of petitioner’s firearms.


(1)  The petitioner did not raise a constitutional argument before the trial court in response to its denial of his request to cross-examine witnesses or in response to its granting non-verified motions without a hearing.  Because the petitioner failed to demonstrate he preserved these issues for appellate review, the Court declined to consider them.  Though the petitioner was pro se during a portion of the proceedings, this was no reason to depart from the general principal of preservation.


(2)  There was no violation in the appointment of the GAL in this matter.  There is no requirement in RSA 458:17-a that a GAL must be a New Hampshire attorney.  Though the 1983 Superior Court guidelines for a GAL state that a GAL “shall be” an attorney admitted to practice in New Hampshire, these guidelines have not been adopted as rules of the Family Division of the Court. 


(3)  There was no error in the trial court’s determination as to alimony, visitation, continuation of a restraining order, or fault grounds for the divorce.  There is sufficient evidence on the record that the trial court carefully weighed the evidence before it and none of the court’s findings were unreasonable or unsupported by evidence. 


(4)  In March 2005, the trial court issued a restraining order against the petitioner.  This order was continued in the court’s final divorce order, and prohibited the petitioner from possessing firearms and ammunition during the duration of the order.  This is in accord with 18 U.S.C. § 922(g) which prohibits a person who is subject to the same type of restraining order as in effect against the petitioner from possessing any firearm or ammunition.  In accordance with this order, the trial court directed that all of the petitioner’s firearms and other weapons be sold with the proceeds remaining with the petitioner.  Though the plain language of RSA 458:16-a authorizes a trial court to distribute marital property between the parties, the trial court’s order requiring the sale of the firearms did not conform with the statute as it awarded all of the proceeds to the petitioner.  Therefore, the trial court exceeded its authority under RSA 458:16-a, and the portion of its order requiring the petitioner to sell the firearms is reversed and remanded.




Farm Family Casualty Insurance Company as Subrogee of Marc and Deborah Janetos v. Town of Rollinsford, No. 2006-791

July 17, 2007



  • Whether the trial court erred in dismissing the plaintiff’s subrogation action against the defendant based upon a finding that the town’s fire department, when it responded to a fire in a garage owned by the plaintiff’s insured, did not own or occupy the property so as to incur liability under RSA Chapter 507-B.


The phrase “ownership, occupation, and maintenance or operation of all . . . premises,” as used in RSA 507-B:2 to impose municipal liability in an action for property damage, denotes “an ownership-like situation such as a lease or rental of a property, rather than a seizure or a brief, transitory presence.”  To expand this phrase to encompass a temporary occupation or control of property would extend municipal liability to virtually all property a fire department controls in order to perform its firefighting function.


Nicolaou v. Vermont Mutual Insurance Company, No. 2006-651

July 19, 2007



  • Whether the trial court erred by ruling that, under the plaintiff’s insurance policy, he was not entitled to replacement costs before he complied with relevant policy conditions and actually incurred repair or replacement costs in excess of the settlement he received.


The policy value statute, RSA 407:11, does not supersede the repair and replacement requirement stated in the additional coverage endorsement contained in the plaintiff’s policy. The purpose of the policy value statute is to guarantee a policyholder payment of the dollar amount stated in the policy without having to defend against insurance company claims that the property was actually worth less than the stated limited of liability when the property had been destroyed.  Here, the defendant paid the plaintiff the stated limited liability amount contained in the plaintiff’s policy. Thus, it fully complied with the policy value statute.  In order to receive an excess of this amount for repair or replacement costs, the plaintiff had to repair or replace his house before the defendant was obligated to pay the difference between the stated limit of liability and the replacement cost.  Allowing a policyholder to recover replacement costs without actually repairing or rebuilding the residence would leave the policyholder in a better position as a result of a loss.  Therefore, this Court joins courts in other jurisdictions in holding that actual repair or replacement is a precondition to recovery on a replacement cost policy. 




The Demers Agency v. Widney, No. 2006-586

July 17, 2007



  • Whether the trial court erred in affirming a decision of the New Hampshire Department of Labor (DOL) to award an agency’s former employee unpaid wages, liquidated damages, attorney’s fees, costs, and interest after finding that a disputed bonus qualified as wages under RSA Chapter 275.


For the purposes of RSA chapter 275:42, III, not every bonus paid by an employer qualifies as wages.  In those instances where a bonus is part of an “agreed-upon compensation package, and the employee has performed all of the duties necessary to trigger the employer’s obligation to pay the bonus”, the bonus will qualify as wages.  In this case, there was sufficient evidence to support the DOL’s finding that the agency knowingly withheld, without good cause, the employee’s bonus and thus the trial court properly exercised its discretion in awarding liquidated damages, reasonable attorney’s fees, costs, and interest.


Municipal Law


Babiarz v. Town of Grafton, No. 2006-542

July 20, 2007



  • Whether the trial court erred in dismissing the plaintiff’s petition because he lacked standing as a “person aggrieved” within the meaning of RSA 669:35.


There was no error in the trial court’s determination that the plaintiff must have a special or superior interest in an election in order to have standing to contest an election recount.  Election contests are based in statutory rights and privileges.  Here, the use of the phrase “person aggrieved” in RSA 669:35 grants the right to bring a recount contest in superior court to candidates or persons having or claiming an interest that is special or superior to that of an ordinary voter or member of the public.  The plaintiff in this case was a “town meeting participant, voter and taxpayer, but he was not a candidate for the planning board and has pointed to nothing in the record indicating that he had any other special or superior interest in the election.”  Accordingly, the trial court correctly determined he did not have standing under RSA 669:35. 


Guildhall Sand & Gravel, LLC v. Town of Goshen & a., No. 2006-860

July 20, 2007

Reversed and Remanded


  • Whether the trial court erred in ruling that Town’s excavation regulations are preempted by state law.


Municipal legislation is preempted if it “expressly contradicts state law or if it runs counter to the legislative intent underlying a statutory scheme.”  RSA chapter 155-E distinguishes between excavations requiring a permit and those that do not require one.  The statute contains a minimum standard requirement for those excavations requiring a permit, thus indicating that more stringent standards may be imposed, but expressly puts forth standards applicable to excavations that do not require a permit. Therefore, municipalities are not preempted from imposing more stringent regulations upon those excavation projects requiring a permit.  The trial court erred in determining that RSA chapter 155-E preempted the Town’s excavation regulation because the Town’s ordinance applies only to excavations requiring a permit.

The Court also clarified that its holding in Arthur Whitcomb, Inc. v. Town of Carroll, 141 N.H. 402 (1996) applies only to permit-exempt excavations.



Real Property / DES


Cayten & a. v. New Hampshire Department of Environmental Services & a., No. 2006-577

July 13, 2007

Reversed and Remanded


  • Whether the trial court erred by ruling that RSA 482-1:10, XII provided a bypass around the statutory reconsideration and appeal process for persons aggrieved by decisions of the Wetlands Council.


The trial court erred in denying a motion to strike disputed petitioners as parties to an appeal of a Wetlands Council decision because the parties were not persons aggrieved by the decision of the Council.  The petitioners’ rights were not directly affected by the outcome of an appeal from a decision of the Wetlands Council because the Council previously concluded that:  (1) they did not have the proper standing to be considered appellants in the appeal; and (2) they did not abide by the procedural requirements of RSA 482-A:10, I, II, and III.  The petitioners did not move for reconsideration, a prerequisite for superior court review.  The trial court incorrectly determined that the term “any persons” as contained in RSA 482-A:10, XII created a bypass around the statutory reconsideration and appeal requirements contained in RSA 482-A:10, VIII for persons aggrieved by decisions of the Council.  On remand the court will strike the disputed petitioners.


The Court also reversed the trial court’s ruling that the Wetland Bureau’s jurisdiction over the proposed project required application of RSA Chapter 482:A and N.H. Admin Rules, Env-Wt 302.03 to a boathouse.  These rules are applicable only to the portion of the project within protected wetlands.


New Hampshire Department of Environmental Services v. Marino & a., No. 2006-761

July 18, 2007



  • Whether the trial court erred in granting the Department of Environmental Services’ (DES) motion for partial summary judgment on its Shoreland Protection Act claim by ruling that the defendants violated the act by building their home within fifty feet of a lake without authorization.
  • Whether RSA 483-B:10, I is unconstitutional because: (1) it impermissibly delegates unlimited legislative authority to DES, and (2) it violates due process rights because it is impermissibly vague
  • Whether the trial court erred in ruling that the defendants violated the Wetlands Act.


(1)  The Shoreland Protection Act did not allow the defendants to build their home within fifty feet of the edge of a lake without DES authorization.  The defendants owned a non-conforming lot, and under RSA 483-B:10, DES may impose conditions on any construction of a single-family home on a non-conforming lot of record. 


(2)  In order to avoid a charge of unlawfully delegated legislative power, a statute must set forth “sufficiently definite” policies.  Here, RSA-B:10, I permits DES to impose conditions that “meet the intent of this chapter, while still accommodating the applicant’s rights.”  These conditions include protecting the state’s shoreland; controlling use of public waters and adjacent shoreland “for the greatest public benefit”; and preventing “uncoordinated, unplanned and piecemeal development along the state’s shorelines, which would result in significant negative impacts” on public waters.  As these are reasonably definite policies, there is no basis to find an unlawful delegation of legislative power to DES.  The defendant’s vagueness claim fails as well, because the conditions contained in the Shoreland Protection Act provides the defendants with a reasonable opportunity to know whether a particular conduct is prohibited. 


(3)  The trial court found that the defendants violated the Wetlands Act by failing to obtain a permit before placing fill on the banks of a lake and installing an overflow drain.  The Court held, as a matter of law, that regardless of when the defendants’ knew they needed an overflow drain, as soon as they dug a trench and refilled it after it was dug, they committed “excavating, removing, filling or dredging,” as those terms are used in the Wetlands Act.  Therefore, there was no error in the trial court’s finding that the defendants violated the act, and the imposition of a civil penalty of $10,000.00 for this violation was not unlawful. 


Real Property / Subdivision


Doyle & a. v. Town of Gilmanton & a., No. 2006-797

July 19, 2007



  • Whether the trial court erred in reversing the board’s decision that the lots on the plaintiff’s proposed subdivision plan did not meet minimum building site requirements with respect to set-back designations because the Town’s set-back regulation served no legitimate land use purpose. 


The Town’s subdivision regulations define a building site as “that part of a parcel of land on which a building is placed.”  The regulations do not specifically mention setbacks, but they require that plats conform to “any other pertinent State or local laws, regulations or ordinances.”  The Town’s zoning ordinance requires and defines setbacks as an area that “contain(s) no structures.”  Therefore, “the area covered by setbacks should not be included when calculating whether a proposed building site meets the minimum building site size requirement.”


The trial court’s determination that the Town’s regulations, particularly the requirement that a building site contain a minimum of 30,000 contiguous square feet of suitable soil, served no legitimate land use purposes was in error.   The Town’s minimum contiguous area requirement ensures that lots will have proper drainage areas and will conform to local and State ordinances.  Further, because setbacks may not be used in calculating the minimum building site area, the 30,0000 contiguous square feet requirement is not absurd and serves a legitimate land use purpose.  Thus, the board’s interpretation of the regulation was correct and the trial court erred in reversing its decision.

Susan Wilson


Susan Wilson received her B.A. (magna cum laude) from Boston College and her J.D. (magna cum laude) from the Massachusetts School of Law.  Attorney Wilson currently serves as a Law Clerk for the Justices of the Massachusetts Superior Court.  She is a member of both the NH and Mass. Bar Associations.



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