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

Set Your Business Apart - Advertise with NH Bar News!

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - September 21, 2007

NH Supreme Court At-a-Glance: August 2007



William Amman

New Hampshire Association of Counties, et al v. New Hampshire Health and Human Services


  • Does RSA 167:18-b, I, bar DHHS from billing the counties for services provided to OAA an ATPD recipients in facilities other than nursing homes licensed by the State?  Vacated.

The Court held that as “nursing home facility” means any institution certified by the federal Medicare program to provide nursing facility services, the DHHS did not exceed its authority by issuing the disputed bills.


  • Does RSA 167:18-a, apply only to cash payments to OAA and APTD recipients?   The Court declined to review.


  • Whether the cap on billings in RSA 167:18-b, IV(a) refers to the gross amount DHHS bills the counties rather than the net amount it seeks to recover from them? Affirmed in part and remanded in part.

The Court held that while it affirmed the trial court’s ruling that RSA 167:18-b, III reduced the counties’ aggregate 2004 reimbursement obligation from $60 million to $58 million, the Court remanded the issue as to whether the term “billings” applies only to gross billings, before offsets are made. 


  • Does sovereign immunity preclude the NHAC cause of action for declaratory and injunctive relief against NHHHS? The Court declined to review.




NH v. Jennings


  • Whether defendant was in “custody”, for purposes of Miranda Rights, when defendant was interrogated by police after being told informally that he was “free to leave”? Affirmed. 

The Court held that the defendant was in custody for purposes of Part I, Article 15 of the New Hampshire Constitution, as it found that custodial relationships cannot be dismissed by a “thinly-veiled attempt to clothe their custody of the defendant in the language of voluntariness.”


  • Whether the Pattern Sexual Statute triggers a violation of the Double Jeopardy Clause of the Federal Constitution which prohibits multiple punishments for the same offense? Reversed.

The Court held that the defendant’s Double Jeopardy rights were not triggered by the Pattern Sexual Assault statute, when the charging of multiple patterns involve the same type of sexual assault, and each of the indictments rely upon a different set of acts and each set of acts are alleged to have occurred during a different time frame and location.


Ward v. Inishman Associates


  • Whether the trial court erred in denying the defendant’s motion for directed verdict in light of no evidence of any special circumstances imposed upon them a duty to protect the plaintiff from a criminal assault by a third person?  Reversed.

The Court held that the trial court’s directed verdict constituted an unsustainable exercise in discretion as the plaintiff failed to establish that the defendants created or were responsible for a physical defect on the premises that foreseeably enhanced the risk of criminal attack.


  • Whether the trial court erred in denying a motion for summary judgment on a claim that a warranty of habitability was breached? Reversed.

The Court held that the implied warranty of habitability did not require the defendants to take affirmative measures to provide security against the attack that harmed the plaintiff nor did the defendants expressly undertake to provide measures, and as such, they were entitled to a motion for judgment as a matter of law.


NH v. Beede


  • Whether the trial court improperly admitted various bank records under the business records exception to the hearsay rule, N.H. R. Ev. 803(6)?  Affirmed.

The Court held that the trial court’s application of the business records exception to the seven checks and two money orders was unnecessary as the documents were not admitted to prove the truth of the matter asserted, and thus not hearsay. The Court further held that while the bank account statements were inadmissible evidence, their admission into the record was harmless due to the overwhelming evidence of defendant’s guilt.


Domestic Violence


In the Matter of Amy Aldrich and Ryan Gauthier


  • Whether notice is required of an allegation of a death threat before petitioner can testify to such threat?  Reversed. 

The Court held that the trial court has broad discretion to admit evidence its deems “relevant and material” pertaining to facts alleged pursuant to RSA 173-B:3, but it should not admit evidence on unnoticed charges.


Family Law

In Re Juvenile 2006-674


  • Whether the trial court violated the respondent’s state and federal due process and equal protection rights by impermissibly expanding the grounds for terminating parental rights under RSA 170-C:5, III? Affirmed.

The Court held that the trial court did expand the grounds for terminating parental rights, as it did not erroneously connect the district court’s prior findings of the respondent’s unfitness with later allegations of respondent’s failure to correct conditions of neglect.


  • Whether sufficient evidence existed to establish, beyond a reasonable doubt, that the respondent failed to correct conditions of neglect? Affirmed.

The Court held that the finding of evidence in the record of detrimental treatment to the juvenile due to shortcomings of the respondent, presented sufficient grounds to find, beyond a reasonable doubt, that the respondent had failed to correct the conditions that led to a finding of neglect under RSA 169-C.


Land Use

Auger v. Town of Strafford


  • Whether aesthetic design or preference by a town zoning board are sufficient grounds to deviate from town regulations, which require no more than a ten-lot design in new developments, where deviations are only allowed when strict conformity would cause “undue hardship or injustice” to the landowner?  Reversed.

The Court held that, despite the fact that the board preferred the cul-de-sac design proposed for the development, absent any evidence of “undue hardship or injustice” to Graystone, the board erred by waiving the ten-lot requirement.


  • Whether the procedural due process rights of the citizens are affected by a voting member’s absences at pertinent hearings and subsequent casting of votes?  Affirmed.

The Court held that, as the board member missed only two meetings over a period of several years and had visited the proposed site, the plaintiffs received all process rights to which they were entitled as a failure of one participating member to attend one hearing does not vitiate the entire process.




Nadeau v. City of Portsmouth


  • Whether the trial court’s ruling that tax assessments made under the education property tax, RSA 76:3 (2003), for tax years 2002, 2003 and 2004 were unconstitutionally disproportionate?  Reversed.

The Court held that the trial court erred in its ruling by accepting as dispositive evidence of a widespread general disproportionality in the tax rate without requiring that the taxpayers establish that they paid more than their fair share of taxes. The Court held that by failing to offer such proof, the petitioners failed to demonstrate that they were harmed by the tax.




Appeal of David Lowy


  • Whether the phrase “to the extent required by law” in the payback provision disqualifies the trust from being excluded as a resource in the petitioner’s eligibility determination under 42 U.S.C. § 1396p (d) (4) (A)? Reversed.

The Court held that the phrase “to the extent required by law” in the payback provision should be examined in accordance with the settlors’ intent, and as such, should be regarded as merely referencing a general requirement that the promise contained in the payback provision be construed in accordance with the law. The Court held the payback provision adequate and the trust as qualifying for exclusion under 42 U.S.C. § 1396 p(d)(4)(A).


  • If a trust does qualify for exclusion, whether DHHS may nonetheless require the petitioner to verify the value of the trust’s corpus as part of his initial application? Affirmed.

The Court held that the State has the authority to request, and the petitioner is required to provide, information regarding a trust corpus to the State, where the information is solicited for the purpose of verifying the petitioner’s income eligibility and ascertaining whether distributions under the trust are to be counted as income for Medicaid eligibility purposes. 


Khabbaz v. Social Security Administration



  • Whether a child conceived after her father’s death via artificial insemination eligible to inherit from her father as his surviving issue under NH intestacy law? Remanded.

The Court held that to be considered “surviving issue” for the purposes of inheritance, a child has to be “alive” or “in existence” at the time of the father’s death, and as such, any posthumously conceived child is not “surviving issue” within the plain meaning of the statute.       


In Re Estate of Robert Lawrence Sharek


  • Whether the trial court erred in applying RSA 551:13, II, retrospectively, in its determination of administration of an estate?  Affirmed.

The Court held that the trial court properly ruled that, as the appellant’s expectation of taking under the decedent’s will was not a vested right at the time the decedent executed the will, RSA 551:13, could be retrospectively applied.


Public Employment


Appeal of Merrimack County


  • Whether the PELRB erred by enforcing an arbitrator’s award which exceeded the arbitrator’s authority and was not final and binding?  Affirmed.

The Court held that the arbitrator’s interpretation of the Collective Bargaining Agreement was not so implausible as to require reversal nor had the county demonstrated by a clear preponderance of the evidence that the PELRB’s decision to uphold the decision was unjust or unreasonable.


  • Whether the PELRB erred in enforcing arbitrator’s award because the award violated public policy?  Affirmed.

The Court held that the PELRB did not err as a matter of law by ordering the county to comply with the arbitrator’s award, due to the lack of strong and dominant public policy against reinstating an employee, like the LNA in question, who has been found to engage in one episode of verbal abuse and/or who fails to admit wrongdoing.



Estate of Folloni v. Exeter Hospital


  • Whether the Exeter Hospital could be held vicariously liable for the doctors’ negligence under a doctrine of apparent authority?  Affirmed.

The Court held that the evidence submitted to the court failed to show an agency relationship, either actual or apparent in nature, as the policies that were issued by the hospital were administrative in nature and decisions regarding diagnosis and treatment were remained exclusively with the doctors.


  • Whether the failure to produce expert testimony in an action for medical injury, as required by RSA 507-E:2 (1997), was sufficient grounds for a granting of a Motion for Summary Judgment?  Affirmed.

The Court held that the hospital was entitled to a judgment as a matter of law, as the plaintiffs’ failed to provide expert testimony in its negligence action against the hospital, which qualified as a “medical care provider.”


  • Whether the trial court unsustainably exercised its discretion by denying a motion to add experts?  Affrimed.

The Court held that the trial court’s denial of the plaintiff’s motion to amend and add experts was proper given (1) the broad discretion that trial courts enjoy in the management and supervision of pretrial discovery; (2) in light of the fact that allowing the amendment would require significant new evidence;  and (3) given that the request came after close of discovery, the amendment would unfairly prejudice the defendants.


Petition of Bayview Crematory


  • Whether the trial court erred in its exercise of certifying liability for class certification?  Reversed. 

The Court held that the trial court erred by certifying the issue of liability for class treatment and leaving damages as the only non-certified issue, removing the requirements of expert testimony on the assessment of NIED.  It further held that, NIED, as an element of liability, requires the showing of physical injury resulting in emotional distress, and subsequent expert testimony pertaining to each individual class member. As such, the issues regarding the individual putative class members regarding NIED will predominate over those common to the class.


Lachance, et al v. United States Smokeless Tobacco, et al


  • Whether RSA 358-A:2, XIV (supp.2006) provides the authority to bring claims under the New Hampshire Consumer Protection Act? Matter of first instance. 

The Court held that while RSA 358-A:2, XIV, could be remanded to the Superior Court or disregarded entirely with respect to the current case, interests in conserving judicial resources and avoiding unnecessary steps in litigation predominate.


  • Whether indirect purchasers may bring claims under the Consumer Protection Act?  Reversed.

The Court held that, given the broad protections afforded by RSA chapter 358-A, “any person injured” must encompass consumers, who are often the ultimate purchasers of goods and services in the marketplace.


  • Whether the trial court erred in certifying as a class action the lawsuit of the respondents?  Reversed.

The Court held that the trial court erred in ruling that the allegations against the defendants were not susceptible to class certification. In its decision, the Court acknowledged that the governing regulation over when a class action may be maintained under the CPA omitted “unfair method[s] of competition” in its statement of the types of claims that may be brought as class actions, it found that there was no reason to pigeonhole the conduct alleged into the category of “unfair method”, as the conduct alleged may have fallen under the broader category of “unlawful acts”, which includes by its plain meaning “unfair method[s] of competition”.


Tiberghein, et al v. BR. Jones Roofing Co.


  • Whether the defendant is entitled to take a credit under RSA 507:7-h (1997) and RSA 507:7-I (1997) against the arbitrator’s award after confirmation under RSA 542:8 (2007)?  Affirmed.

The Court held that the defendant was entitled to take a credit under RSA:7-h (1997) and RSA 507:7-I (1997), as there is no language in the regulation which restricts its application to civil proceedings in law or equity. Rather the statute plainly affords a credit, determined by the consideration paid for a settlement, for all proceedings in which “2 or more persons [are] liable in tort for the same injury.”


  • Whether the defendant’s failure to raise the issue of its entitlement to the $65,000 credit now precludes the defendant from claiming such credit?  Affirmed.


The Court held that, as the defendant was jointly and severally liable, he was entitled to a credit for the settlement received. As the arbitrator’s award clearly indicated that the total damages to which the plaintiffs were entitled was $250,000, to disallow the $65,000 credit received would represent a windfall and would be contrary to the arbitrator’s award and New Hampshire law and practice.




If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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