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Bar News - December 14, 2007

NH Supreme Court At-a-Glance: November 2007





Appeal of State Employees’ Association of New Hampshire, Inc. (New Hampshire Public Employee Labor Relations Board); 2007-105

November 9, 2007

Reverse and Remand


  • Whether the Public Employee Labor Relations Board erred in denying the Motion to Obtain Certain Information filed by the State Employees’ Association of New Hampshire, Inc., where Pub 303.01(b) requires, upon request, to submit a complete list of the names and home addresses of employees in a bargaining unit.       


On August 23, 2006, the New Hampshire Public Utilities Commission (PUC) filed a petition to decertify the SEA as the appellees’ exclusive representative.  On October 4, 2006, the SEA filed a Motion to obtain a list of each potential voter’s name and home address.  The Executive Director of the PELRB denied the motion on October 10, 2006 stating that the privacy of the employee’s home address is a special interest and should not be breached.  On the October 11, 2006 election, the majority voted to decertify the SEA.  Subsequently on October 17, 2007, the PELRB issued a notice of decertification.  On November 30, 2006 the PELRB reaffirmed its Director’s decision indicating that this decision “reflects the position of the board in this era of elevating the privacy rights of employees…”  The PELRB denied the SEA’s Motion to Reconsider.


The Court ruled that the “law of this State is well settled that an administrative agency must follow its own rules and regulations, and that the agency’s interpretation of its own regulations is erroneous as a matter of law when it fails to embrace the plain meaning of its regulations.” New Hampshire Administrative Rules, Pub 303.01(b) states that the employer must provide “to the parties who appear on the ballot a complete list of the names and home addresses of the employees in the bargaining unit.”  Since the PELRB failed to comply with its own rules, the Court reversed and remanded the decision for a new election. 


Cook & Molan, P.A., of Concord (John S. Krupski on the brief and orally), for the appellant.


Certain Individuals Regarded as Classified Employees within the New Hampshire Public Utilities Commission filed no brief. 


Appeal of Regenesis Corporation (New Hampshire Department of Environmental Services Waste Management Counsel); 2006-703

November 30, 2007



  • Whether the council erred in affirming the hearings officer’s revocation decision of Regenesis Corporation’s license where the record supports the hearing officer’s findings that relevant facts were omitted giving a misleading impression to the hearings officer.
  • Whether the sanction imposed, revocation of the permit, is unconstitutionally excessive and disproportionate.
  • Whether any finding and rulings made by the hearings officer were unnecessary to the determination of the violation alleged should be vacated and have no precedential or binding effect.
  • Whether the certification language in RSA 149-M:9 is limited to existing officers, directors, or partners.     


In November 2004, the New Hampshire Department of Environmental Services (DES) issued a notice of proposed license action (NPLA) to revoke the solid waste facility permit health by Regenesis Corporation.  Citizens for a Future New Hampshire (CFNH), Resident’s Action Committee for Heath Inc. (REACH) and the Town of Hopkinton all intervened in the revocation proceeding.  A three-day evidentiary hearing was held where seven witnesses testified.  The DES officer issued a ninety-two-page decision revoking the solid waste permit of Regenesis.  Regenesis appealed to the waste management council and the decision made by the hearings officer was affirmed.  Regenesis then appealed to the Court raising three issues.  The State, CFNH, and REACH all filed cross-appeals.    


The Court reviewed the record and found that there was extensive evidence submitted that the hearing officer’s finding that Regenesis omitted relevant facts from its permit transfer application were valid.  As to the second issued raised by Regenesis the Court ruled that N.H. Admin. Rules, Env-Sw 306.04(1) states that the regulatory scheme provides that a permit “shall be revoked if the department determines…that [g]ood cause…exists.  “Good cause” to revoke a permit exists where “[i]ssuance of the permit was based on false or misleading information.”  As a result, the sanction imposed was appropriate and not excessive and within the discretion of the hearing officer.  With regards to the last issue, the Court stated that Regenesis cited no authority requiring the Court to vacate its findings and rules.


In responding to the State’s cross appeal the Court ruled that RSA 149-M, IX(c) is limited to existing officer, directors or partners, but not past officers, directors or partners.  Because of the Court’s holding on these issues, the Court did not address the other issues raised by the intervenors. 


Sheehan Phinney Bass & Green, P.A. of Manchester (Edward A. Haffer and Robert P. Cheney on the brief, and Mr. Haffer orally), for the petitioner.


Kelly A. Ayotte, attorney general (Jennifer J. Patterson, senior assistant attorney general, on the brief and orally), for the State.


Anderson & Kreiger, LLP, of Cambridge, Massachusetts (Douglas H. Wilkins and Jeffrey L. Roelofs on the brief, and Mr. Wilkins orally), for intervenor Citizens for a Future New Hampshire


Wadleigh, Starr & Peters, PLLC, of Manchester (Ronald J. Lajoie and Michael J. Tierney on the brief, and Mr. Tierney orally), for intervenor Resident’s Environmental Action Committee for Health, Inc. 




Mark Poland v. Paul J. Twomey; 2006-763

November 8, 2007



  • Whether the trial court erred by finding that the settlement agreement was enforceable and ordering the equitable remedy of specific performance where the parties reached an agreement through negotiations by their attorney, and then refused to execute a release. 


The Poland’s were involved in a motor vehicle accident on May 30, 1994.  They had retained Paul Twomey, of Twomey & Sisti to pursue a negligence claim.  In June of 1997, a jury returned a defendant’s verdict in Mr. Poland’s case.  Mrs. Poland then hired Charles Dibble to pursue a malpractice claim against Twomey and his law firm Twomey & Sisti.  Upon authorization by the Polands, Dibble sent a settlement offer with a release to Andrew Dunn, counsel for the Defendant.  The Defendant accepted the offer and signed the release.  Mr. Poland signed the release, but Mrs. Poland refused and litigation ensued.     


The Court found that a “valid enforceable settlement agreement requires offer, acceptance, consideration and a meeting of the minds.”  While executed settlement agreements are not required in every situation, they may become an essential term of an agreement.  The Court found that the Defendant could “derive the functional equivalent of an executed release through a court order.”  Here, the Polands breached their contract by failing to execute the agreement as promised.     


According to the Court, “New Hampshire Jurisprudence strongly favors enforcement of settlement agreements made by authorized attorneys acting on behalf of their clients.”  As a result, the trial court correctly found that the Polands authorized their attorney to enter into a settlement agreement with the Defendants.  As a result, a decree of specific performance to enforce the settlement agreement was appropriate remedy in this case. 


Mark Poland and Georgette Poland, pro se, no brief filed

Devine, Millimet & Branch, P.A. of Manchester (Andrew Dunn and Donald L. Smith on the brief for the Defendants.




State of New Hampshire v. Robert Lopez; 2006-800

November 9, 2007



  • Whether the trial court erred by permitting the State to introduce an inculpatory statement made by the Defendant at his mother’s home, which excluding an exculpatory statement also made there.
  • Whether the trial court erred by permitting the State to introduce evidence that the Defendant did not cry during his interview with New Hampshire police officers, while excluding evidence that he cried during an interview with the New Jersey police officers. 
  • Whether it was plain error for the trial Court to allow the State, while cross-examining him, to ask him whether other witnesses had lied to the jury.            


On July 21, 2005 the Defendant and the victim got into an argument in their bedroom.  During the argument the Defendant retrieved a hammer and beat the victim to death.  After the killing the victim, the Defendant went to his sister’s home and took her truck and drove to Newark, New Jersey.  Upon his arrival he told his aunt that he had “no regrets”.  The Defendant’s brother, a Newark Police Officer, was in the house and called the police and the Defendant was arrested.  While being escorted to the police cruiser the Defendant informed his mother that he just “snapped.”  At trial, Court excluded the statement made to the Defendant’s mother as inadmissible hearsay. 


In making its determination, the Court concluded that the trial court did not err in admitting the first statement, but not the second.  The Court reviewed the statements under the doctrine of verbal completeness.  Two requirements are necessary under this doctrine, namely: 1) “the statements must be part of the same conversation; and 2) admission of only a portion would mislead the jury.”  The Court concluded that the Defendant’s statement to his mother was not part of the same conversation and “would not help explain the initial statements” made to his aunt “because they took place under entirely different circumstances after the Defendant had been arrested and charged with murder in the interim, and because the statements are self serving.”


The Defendant was then taken to the police station and interview by the New Jersey police officers where he was allegedly emotional and started crying.  One day later the Defendant was interviewed by New Hampshire police officers.  In this video of the interview the Defendant appeared to cry.  After the presentation of the video the Court asked the officer whether he observed tears whereby the officer responded no.  The Defendant claimed that the State had “opened the door” and testimony as to the Defendant’s emotional state during the first interview should have been admitted.  The Court disagreed stating that in order for this doctrine to apply, the “State must have introduced evidence that provided a justification, beyond mere relevance, for the Defendant to introduce evidence that would not otherwise have been admissible.”  The Court disagreed with the Defendant and found that a misleading impression had not been created.         


Finally, the Defendant argued that the trial erred in permitting the State to ask him on cross-examination whether other witnesses had lied to the jury.  In determining whether it was plain error for the trial court to allow the State to opine on the credibility of other witnesses the Court used the plain error rule which states “1) there must be an error; 2) the error must be plain; 3) the error must affect substantial rights; and 4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.”  The Court found that while the prosecutor’s questions were improper they were not prejudicial in “light of the overwhelming evidence of premeditation presented at trial.”


Kelly A. Ayotte, attorney general (Charles J. Keefe, assistant attorney general, on the brief and orally), for the State. 


Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for the Defendant. 


State of New Hampshire v. Robert Offen; 2006-946

November 15, 2007

Reverse and Remand


  • Whether the failure to report within thirty days of establishing a New Hampshire residence is an element of RSA 651-B:4, I.          


The Defendant in this case was charged with failing to report as a sex offender within thirty days after being released from custody from Florida prison and moving to Manchester.  The complaint alleged that he “knowingly failed to report his current mailing address, place of residence, or temporary domicile to the Manchester Police Department.”  At trial the Defendant engaged in the plea colloquy and pled guilty.  The trial court sentenced the Defendant to 12 months in the house of corrections, six months suspended for two years.  In 2006, the Defendant moved to vacate his conviction on the basis that his waiver of rights was not knowing, intelligent and voluntary because he was never advised of an essential element of the charged offense. 


RSA 651-B:4, I provides that “any person required to be registered under this chapter shall report such person’s current mailing address, place of residence or temporary domicile, and place of employment or schooling to the local law enforcement agency within 30 days after the person’s release from custody following a conviction or within 30 days after the person’s date of establishment of residence in New Hampshire if convicted elsewhere.” 


The Court in its decision relied on RSA 625:11, III(a) which defines an “element of an offense” to mean “such conduct, or such attendant circumstances, or such a result of conduct as…[is] included in the definition of the offense.”  As a result, the Court concluded that since the thirty day period is included in the definition of the offense, then it must be included in the complaint charged in order for the Defendant to knowingly, intelligently, and voluntarily waive his rights.    


Kelly A. Ayotte, attorney general (Lucy H. Carrillo, assistant attorney general, on the brief and orally), for the State.


James T. Brooks, assistant appellate defender, of Concord, on the brief and orally, for the Defendant. 


State of New Hampshire v. Sean D. Brown; 2006-333

November 30, 2007

Reverse and Remand


  • Whether the trial court erred in joining four counts of sale of a narcotic drug under RSA 318-B:2 and two counts of conspiracy to commit sale of narcotic drug under RSA 629:3 when each charge alleged criminal conduct occurring on different days.            


On January 21, 2005, the Nashua Police Department had arranged for a person cooperating with the Department to purchase drugs from the Defendant on January 24. January 28, and February 9.  This same transaction occurred again using a different person cooperating with the Department on March 7.  The Defendant was indicted by a grand jury on four counts of a sale of a narcotic drug under RSA 318-B:2 and two counts of conspiracy to commit sale of narcotic drug under RSA 629:3.  A jury found the Defendant guilty of all four sale charges.  The conspiracy charges were dismissed at the end of the trial.  The Defendant argued on appeal that the trial court erred in joining the charges against him.


The Court found that the Defendant has “an absolute right to server unrelated charges.”  “Related offenses are those that are based upon the same conduct, a single criminal episode, or a common plan.”  The Court found that while the sales of the drugs all took place under similar circumstances, this by itself was not sufficient.  “The acts must be intertwined such that they are mutually dependent in order to be considered part of a common plan.”  The Court further rejected the State’s argument that the evidence presented at trial could have be admissible in separate trials under the New Hampshire Rules of Evidence 404(b) and that the error of joining these charges was harmless.   


Kelly A. Ayotte, attorney general (Jeffrey S. Cahill, senior assistant attorney general, on the brief and orally), for the State. 


Theodore Lothstein, assistant appellate defendant, of Concord, on the brief and orally, for the Defendant.   


State of New Hampshire v. Michael Spinale; 2006-872

November 30, 2007

Reverse and Remand


  • Whether the trial court improperly second guessed the jury’s verdict and made credibility determinations in concluding that the identification evidence was insufficient.


On July 21, 2004, the alleged victim was working as an attendant at a parking lot and was robbed at knifepoint.  Prior to being robbed at knifepoint, the victim came into contact with the Defendant approximately three times including the time he was robbed.  The victim, after being held at knifepoint, was able to write down the make and model number of the motor vehicle of the Defendant as well as the license plate.  The description given to police and the rough estimates given to the police by the victim concerning the robbers, weight, height and facial hair were not identical to those of the Defendant.  However, in a two-page photo lineup the victim was able to positively identify the Defendant.  On the day of trial the victim once again identified the Defendant as the robber with “100 percent certainty”.  The jury returned a verdict of guilty.  The Defendant filed a Motion for Judgment notwithstanding the Verdict claiming that the verdict should be set aside and an acquittal entered and argued that the jury was “manifestly” mistaken as to the identification of the Defendant as the robber.  The trial court set aside the verdict and granted a new trial.    


The Court found contrary to the trial court’s ruling that a rational juror could have found beyond a reasonable doubt that the Defendant committed the alleged offense and that the identification of the eyewitness was sufficient.  The Court in its reasoning relied on the standard for a JNOV in stating that the trial court must “uphold jury’s verdict unless no rational trier of fact could find guilt beyond a reasonable doubt considering all the evidence and all reasonable inferences therefrom in the light most favorable to the State.”  In considering such a motion the trial court “cannot weigh the evidence or inquire into the credibility of the witnesses, and if the evidence adduced at trial is conflicting, or if several reasonable inferences may be drawn, the motion should be denied.”  


Accordingly, given the victim positively identified the Defendant twice as the robber, the Court concluded that the trial court “gave undue weight to the discrepancies upon which it relied, and that it unsustainably exercised its discretion is granting a new trial.”  The Court further stated that this was a classic jury case and that the jurors properly examined the evidence and concluded that the Defendant committed the robbery.    As a result, the Court reinstated the jury’s verdict and remanded the case for sentencing. 


Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.   

Henry F. Spaloss, of Nashua, on the brief and orally, for the Defendant.     



Grand China, Inc. v. United National Insurance Company; 2007-179

November 9, 2007



  • Whether the trial court erred by finding United National Insurance Company’s cancellation of an insurance policy was ineffective because it was not sent within sixty days before the cancellation date as required by RSA 417-C:2 (2006).   


Grand China is a restaurant in Salem owned by the Lims.  For over 25 years the Lims have purchased liability insurance through Michals Insurance Agency.  United National Insurance Company, a surplus lines insurer, provided coverage for Grand China’s liquor liability policy.  UNIC has a policy that required them to give Grand China ten days written notice of cancellation.  UNIC sent an “intent to cancel” on November 12, 2003.  A patron was subsequently killed and another injured on December 13, 2003.  Both the estate of the deceased and injured party have sued Grand China alleging a breach of duty of care by serving alcohol to a patron.  Grand China provided timely notice to UNIC but was denied coverage due to the cancelled policy.  Grand China filed a declaratory judgment petition seeking a determination so that UNIC would provide coverage.  The trial court hold that the cancellation police was ineffective since it was not sent within the sixty day cancellation noticed as required by RSA 417-C:2 (2006). 


The Court found that although UNIC is a surplus lines insurer, RSA 417-C:2 expressly states that the sixty day notice shall apply to all liability policies and that “the policy at issue is a liability policy.”  Since the cancellation notice was sent to Grand China fewer than sixty days, the cancellation was ineffective and UNIC must provide coverage.   


Steven G. Shadallah, of Salem, by brief and orally, for Grand China, Inc.


Sulloway & Hollis, P.L.L.C., of Concord (Margaret H. Nelson and Martin Gross on the brief, and Margaret H. Nelson orally), for the respondent.


Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard on the brief and orally), for the intervenor


Kelly A Ayotte, attorney general (Glenn A. Perlow, assistant attorney general, on the brief), for the New Hampshire Insurance Department, as amicus curiae. 


Real Estate/Property


Bukk G. Carleton v. Edgewood Heights Condominium Owner’s Association Mark; 2006-404

November 8, 2007

Reverse and Remand


  • Whether, based upon the bylaws of a condo association, the attic of the condominium constitutes a limited common area and is the responsibility of the condominium association or is not a limited common area and therefore the responsibility to the condominium unit’s owner.     


Edgewood Heights Condominium Owner’s Association consists of 120 units with three different styles of condominiums including “garden” or apartment style, townhouse style, and single-family home style.  The Plaintiff owned fourteen garden style units.  In June of 2003 mold was discovered in the attic spaces.  The Condominium Association decided that the attic spaces were “limited common areas” and therefore were the responsibility to the Association.  As a result, they Condominium Board convened a levied a special assessment to make the repairs to all the condominium units.  The Plaintiff refused to pay the special assessment and brought suit challenging the Association’s power to levy the special assessment.  The trial court found that the “attic spaces were not limited common areas and therefore ruled that the Condominium Board acted illegally in assessing [the plaintiff] for remediation of mold therein. 


The Court reviewed the language in the condominium’s declaration and bylaws and determined that that the “issue was not whether a ceiling must be finished or unfinished, but whether attic spaces have a ceiling at all.”  The Court in reviewing Webster’s Dictionary and language in the condominium documents concluded that the underside of a roof does not constitute a ceiling and as a result the trial court’s decision was erroneous.  The attic space was found to be limited common area.  Since the trial court never reached the issue as to whose responsibility it is to maintain or repair the attic, the Court declined to address the issue and remanded it back for determination by the trial Court.   


Decato Law Office, of Lebanon (R. Peter Decato on the brief and orally) for the Plaintiff.


McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. Harris and Kristin M. Yasenka on the brief, and Mr. Harris orally), for the Defendant. 



Carlson’s Chrysler v. City of Concord; 2006-362

November 8, 2007



  • Whether the court erred in holding that the City of Concord’s ordinance violated the First Amendment to the United States Constitution as an unlawful infringement upon commercial speech.   


Carlson’s Chrysler owns an automobile dealership in Concord.  In 2005, Carlson’s submitted an application to the City of Concord’s Administrator to replace an existing sign with an electronic sign that would display advertising messages.  The Administrator denied the application based upon a city ordinance that prohibits “signs which move or create an illusion of movement except those parts which solely indicate date, time or temperature.”  Carlson appealed to the Concord Zoning Board which upheld the Administrator’s decision.  Carlson then appealed to the Superior Court which held that the City’s ordinance violated the First Amendment of the United States Constitution as an unlawful infringement upon commercial speech. 


The Court applied the four part test from Central Hudson Gas & Elec. V. Public Serv. Comm’n, 447 U.S. 557, 561 (1980) in determining the validity of government restrictions on commercial speech.  Utilizing this test, the Court considered the following: “1) whether the advertising is neither unlawful nor misleading and therefore entitled to First Amendment protection; 2) whether the ordinance seeks to implement a substantial governmental interest; 3) whether the ordinance directly advances that interest; and 4) whether the ordinance reaches no further than necessary to accomplish its stated goals.” 


The Court found that the City of Concord met all four prongs of this test and reversed the trial court’s decision. 


The City of Concord in the interim has since amended its zoning ordinance and now “prohibits all electronic message centers, including those indicating time, date and temperature.”  This ordinance was challenged in the United States District Court for the District of New Hampshire and was determined to be content neutral and “constitutes a lawful time, place and manner restriction upon commercial speech.”


McNeill, Taylor and Gallo, P.A., of Dover (Stephen H. Roberts on the brief and orally), for the Plaintiff. 


Paul F. Cavanaugh, city solicitor, of Concord, by brief and orally, for the Defendant. 



   Lieutenant Christopher J. Somma received his B.A. in Religion and Sociology from Bates College and a Juris Doctorate degree from the Franklin Pierce Law Center.  He is currently employed at the Rochester Police Department as the department’s prosecutor. 






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