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Bar News - September 19, 2008

NH Supreme Court At-a-Glance August 2008



Preston T. Kelsey, II et al. v. Town of Hanover, No. 2007-702
August 20, 2008

· Whether a Zoning Board’s refusal to extend its established appeal period violates due process.

· Whether municipalities have a constitutional duty to provide information beyond their public notification procedures.

The Court affirmed a Superior Court decision upholding the dismissal of the Petitioners’ appeal of a zoning permit granted by the Town of Hanover. The Petitioners challenged the Zoning Board of Adjustment’s (ZBA) conclusion that the Town’s 20 foot setback regulation was to be measured from a public way rather than from a private right of way for which the Petitioners had an easement. The Superior Court upheld the ZBA’s decision that the Petitioners’ appeal was untimely because it was filed after the established fifteen day appeal period.

On appeal to the Supreme Court the Petitioners argued that because the zoning administrator led them to believe they would receive direct notice of the permitting progress, due process barred strict application of the appeal period. The Petitioners further argued that the zoning administrator failed in her constitutional duty to provide them with assistance as citizens, thereby interfering with their right and ability to properly appeal.

The Court rejected the due process argument, noting that the Petitioners waited six months to file an appeal after a second meeting with the zoning administrator in which they were given full knowledge of the construction plans. While the Court affirmed the constitutional duty of municipalities to provide assistance to citizens regarding an abutter’s construction, it refused to accept the scope of duty the Petitioners sought to impose. The Petitioners did not establish that the administrator withheld information or failed to address their concerns. More specifically, they did not reference any specific inquiries made to the administrator nor did they claim that any relevant statutes, regulations or portions of the construction file were unavailable to them. The Petitioners also failed to show that the Town deviated from established public posting procedures. The Court held that the Town’s constitutional duty did not require it to affirmatively educate the Petitioners regarding the construction project or the permitting and appeal process.

Stebbins Bradley Harvey Miller & Brooks, P.A., of Hanover (Stephen P. Girdwood on the brief and orally), for the Petitioners. Mitchell & Bates, P.A. of Laconia (Walter L. Mitchell and Laura A. Spector on the brief and Ms. Spector orally), for the Respondent.


Harold Lassonde, III d/b/a Mountain View Construction v. Charles Stanton et al., No. 2007-447
August 15, 2008
Affirmed in part, Vacated in part, Remanded in part

· Whether the Superior Court erred in awarding the Plaintiff damages for breach of contract and defamation.

· Whether a defamation plaintiff’s voluntary public appearances established it as a limited-purpose public figure requiring a showing of actual malice.

The Defendants appealed a Superior Court ruling finding them liable for breach of contract and defamation. The Plaintiff cross-appealed challenging the amount of damages awarded for defamation and for the inclusion of interest and attorneys’ fees in his breach of contract award.

The Defendants, dissatisfied with both the workmanship and completion time of the Plaintiff’s construction of their house, refused to make the final, contractually obligated payment. The Defendants also expressed their dissatisfaction with town residents, subcontractors, at least two potential customers of the Plaintiff, and those present at a board of selectmen meeting. The Plaintiff thus sued for breach of contract and defamation. The Superior Court ruled that the breach of contract claim failed because the house had been completed in a workmanlike manner and in a reasonable time frame.

The Supreme Court upheld that ruling. It also rejected the Defendants’ argument that the Plaintiff was a limited-purpose public figure required to establish actual malice to recover defamation damages. Plaintiff’s appearance on ABC’s "Extreme Home Makeover" television show notwithstanding, the dispute did not implicate the general public.

Because the Plaintiff could not prove specific damages, the Court rejected his claim on cross-appeal that he was entitled to a larger award due to a lost business opportunity. The Court also vacated the Superior Court’s holding that the contract term requiring interest of "15% to 18% per annum" was ambiguous. It thus determined that the Plaintiff was entitled to 15% interest on his contract damages rather than the lower statutory amount. The case was remanded for recalculation of Plaintiff’s damages and to determine attorneys’ fees.

Bouchard, Kleinman & Wright, P.A. of Manchester (Nicholas D. Wright on the brief and orally), and John L. Riff, IV, of Cloebrook, on the brief orally, for the Plaintiff. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the Defendants.

Howard Joseph Guyotte et al. v. Michael O’Neill et al., No. 2007-183
August 20, 2008

· Whether a waiver of a mechanic’s lien forecloses a breach of contract claim.

· Whether a construction company can claim amounts due under a contract pursuant to an unexecuted lien waiver.

The Court upheld the decision of the trial court arising out of a disagreement over a construction contract and related loan agreement between the parties. In order to receive each lump sum payment under the contract, the Defendant construction company first was required to sign a mechanic’s lien waiver. The Plaintiffs would then submit the waiver to the bank, which in turn would provide the Plaintiffs with a disbursement. While the Defendant received payment pursuant to the first five lien waivers, the Plaintiffs not pay the sixth. Following a disagreement over the building of the Plaintiffs’ house, the Defendant ceased construction and the Plaintiffs hired other contractors to finish the project. The Plaintiffs sued the Defendant for breach of contract and the Defendant counterclaimed for breach of contract an unjust enrichment. A jury ruled for the Defendant and awarded counterclaim damages, which were later remitted. The parties then cross-appealed.

The Court held that the lien waivers did not bar the Defendant’s counterclaims because they were not designated as general releases of the right to assert a lien or claims for amounts due as of the effective date. The Court concluded that the counterclaims did not undermine the purpose of the waivers to maintain the priority of the bank loan over any potential lien. The Court upheld the remitter due to conflicting testimony regarding various credits and offsets supporting the lower award claimed by the Plaintiffs, coupled with a lack of record evidence supporting the Defendant’s higher claimed damages. Finally, the Court rejected the Plaintiffs’ arguments regarding discovery and admission of evidence and ruled that (i) the issue of the Defendant’s alleged failure to disclose certain items was not preserved for appellate review; (ii) the Plaintiffs could not establish that the trial court’s decision to permit certain testimony of the Defendant had prejudiced their case; and (iii) the testimony in question sufficiently supported the counterclaims.

Edward D. Philpot, Jr., PLLC of Laconia (Edward D. Philpot, Jr. on the brief and orally), for the plaintiffs. Walker & Varney P.C., of Wolfeboro (Robert C. Varney on the brief and orally), for the Defendants. Gallagher, Callahan & Gartrell, P.C. of Concord (Ari B. Pollack on the memorandum), for the Home Builders & Remodelers Association of New Hampshire, as amicus curiae. Gagliuso & Gagliuso, P.A., of Merrimack (Richard Gagliuso and Kelly J. Gagliuso on the memorandum), for Associated Builders & Contractors, NH/VT. Chapter, as amicus curiae.


State v. Michael Dansereau, No. 2007-573
August 15, 2008
Sentence Vacated and Remanded

· Whether suspended sentences qualify as prerequisites for extended prison sentences under RSA 651:6, II(a).

· Whether a guilty plea made in connection with an illegal sentence is involuntary.

· Whether an illegal sentence permits a defendant to withdraw a guilty plea.

The Supreme Court ruled that the Defendant was unlawfully sentenced to an extended term of imprisonment under RSA 651:6, II(a) and three years probation under RSA 651:2, V(a).

After pleading guilty to two counts of misdemeanor sexual assault, Defendant received a twelve month sentence, as well as a suspended sentence of two to five years with three years probation. The suspended sentence was based in part on his prior record, which included one sentence stand committed and two suspended sentences. After his release, he was arrested again. The Defendant then moved to vacate his prior convictions and sentences in connection with his plea agreement on the grounds that his sentence for the second count was illegal. The Superior Court denied his motion and the Defendant appealed.

The Defendant claimed the Superior Court erred by citing his prior suspended sentences in sentencing him to an extended term of imprisonment. He argued RSA 651:6, II(a) did not permit suspended sentences to be predicates for extended terms of imprisonment. Because he had previously been sentenced to prison only once – not twice as required by statute – he was not eligible for an extended sentence. The State conceded that his three year probationary term was illegal under RSA 651:2, V(a). The Defendant thus argued that because his sentence was illegal, his guilty plea was not voluntary and both his plea and convictions must be vacated.

The Court agreed with the Defendant that the relevant statutory provision was ambiguous. Accordingly, the Court looked to the legislative history. While acknowledging that the legislative history was less than clear, the court nonetheless applied the rule of lenity and determined that extended terms of imprisonment under RSA 651:6, II(a) could not be based on prior suspended sentences.

Though his sentence was illegal, however, the Court did not agree that the Defendant’s plea was involuntary. The Court expressly refused to adopt a per se rule that illegal sentences authorize defendants to withdraw plea agreements. Rather, where a defendant voluntarily agrees to a sentence greater than that permitted by law, he still can receive a reduced sentence that gives him the full benefit of his plea bargain. Accordingly, the Court vacated the sentence and remanded to the trial court for resentencing.

Kelly A. Ayotte, attorney general (Nicholas Cort, 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 v. John Forbes, No. 2007-573
August 6, 2008
Reversed and Remanded

· Whether a defendant’s silence during an informal social setting is an adoptive admission under N.H. Evid. Rule 801(d)(2)(B).

The Court reversed the Defendant’s conviction for aggravated felonious sexual assault and remanded the case for a new trial after determining that the Superior Court erred in admitting the Defendant’s silence as evidence of an adoptive admission. The evidence in question was an informal conversation between the Defendant and his daughter concerning allegations that he sexually assaulted a minor child. The Superior Court had determined that the Defendant’s failure to respond to his daughter’s allegation that he was guilty constituted an admission of guilt under Rule 801(d)(2)(B).

On appeal the Defendant argued that the court erred because the record did not establish that he heard the conversation, and even if he did, the informal setting diminished his motive to deny the allegation.

The Court agreed that the trail court erred. First, there were numerous possible motivations for a person’s silence following an untruthful accusation, and thus the State did not sufficiently demonstrate that it would be unnatural for an innocent person to remain silent. Because of the apparent futility of any denial, the record failed to demonstrate that the Defendant had a motive to deny his daughter’s accusations. Second, because the Defendant had denied the accusations in a prior conversation, his silence could not be construed as a tacit admission. Having determined the evidence to be inadmissible, the Court did not address the Defendant’s claim that the record failed to establish whether he had even heard his daughter’s statement.

Though admission of inadmissible evidence does not necessarily require a new trial, the State did not argue that the admission was harmless. Accordingly, the Court reversed the conviction and remanded for a new trial.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the Defendant.


In the Matter of J.B. and J.G., No. 2008-023
August 6, 2008
Affirmed and Remanded

· Whether RSA 461-A applies to non-biological parents.

· Whether allowance of a parenting petition under RSA 461-A by a non-biological parent violates a biological parent’s constitutional right to raise her child.

This interlocutory appeal arose from a parenting petition filed by J.B. regarding his parental rights under RSA 461-A. The Petitioner had been recognized as the father, both on the birth certificate and through an affidavit of paternity signed by both him and the Respondent, the child’s biological mother. Although the parties never lived together, the Petitioner maintained consistent contact with the child and paid child support pursuant to a child support order obtained by the Respondent. Following a disagreement over the child’s schooling, the Petitioner filed a parenting petition to establish his parental rights and responsibilities. The Respondent filed a motion to dismiss after a court-mandated paternity test determined that the Petitioner was not the biological father. She thus argued that the Petitioner was not entitled to rights under RSA 461-A, and that granting him such rights would violate her own constitutional right to care for her child. The family court initially granted her motion and then later reversed itself, resulting in this appeal.

The Court first addressed RSA 461-A and established a broad definition of the term "parent," rejecting the Respondent’s call for a strictly biological interpretation. The Court determined that the Petitioner’s lack of a biological connection to the child was "not fatal" to his parental petition as several statutes -- most notably RSA 170-B, RSA 458:23 and RSA 168-A:2 -- provide for the recognition of parental status without requiring proof of biological ties. The signed affidavit of paternity and the Respondent’s child support order implied her acknowledgment of the Petitioner’s parental status, which had not been previously rescinded, terminated or challenged.

Because the Petitioner alleged sufficient facts to establish his parental status, there was no unconstitutional intrusion on the Respondent’s parental rights. The family court correctly denied the Respondent’s motion to dismiss, and the Petitioner had standing to seek parental rights and responsibilities under RSA 461-A.

Shaheen & Gordon, P.A., of Dover (Stacey Shaheen Bellabona on the brief and orally), for the Petitioner. Wensley & Jones, PLLC, of Rochester (Daniel J. Harkinson on the brief and orally), for the Respondent.

In the Matter of Joanne Fontaine and Calvin F. Dunn, III, No. 2007-733
August 21, 2008
Vacated and Remanded

· Whether self-inflicted incapacitation justifies a finding of underemployment under RSA 458-C:2, IV(a).

The Respondent challenged a trial court order finding him voluntarily underemployed as a result of his self-inflicted physical incapacitation, which the trial court used to justify a higher child support obligation based upon his pre-incapacitation earnings.

The Supreme Court ruled that the trial court improperly conflated the issues of incapacitation and underemployment. Under RSA 458-C:2, IV(a) the fact finder first must determine whether the parent is physically or mentally incapacitated. Only if the parent is not incapacitated does the fact finder then consider whether the unemployment or underemployment is voluntary. The fact that the Respondent caused his own physical incapacitation is not relevant. The trial court’s order thus was vacated and remanded for further proceedings.

Joanne Fontaine, pro se, filed no brief. Douglas, Leonard & Garvey, P.C. of Concord (Carolyn S. Garvey and Benjamin T. King on the brief), for the Respondent.

In the Matter of Mary Beth Georgakilas and George Georgakilas, No. 2008-046
August 21, 2008

· Whether custodial parent status under RSA 461-A:20 can be conferred upon a parent when not explicitly provided for in a stipulated parenting plan.

The Respondent appealed a Superior Court order denying his motion for reformation of his divorce certificate. The Respondent moved to modify the certificate to reflect joint physical custody of their son, in addition to the joint legal custody already established.

The Respondent argued that the trial court misinterpreted the parenting plan and thus erred in refusing to allow the Respondent to amend the divorce certificate. The Supreme Court held that under RSA 461-A:20, there can only be one custodial parent absent an express agreement that each parent would have fifty percent of the residential responsibility. The Court then determined that the parenting plan’s reference to "equal or approximately equal" residential responsibility did not evince an intent to give the Respondent fifty percent parenting responsibility. Accordingly, RSA 461-A:20 could not confer custodial parent status.

Mary Beth Georgakilas, pro se, filed no brief. Mark S. Moeller, P.A. of Dover (Mark S. Moeller on the brief and orally), and Robert G. Eaton, of Rye, by brief, for the Respondent.


Liam Hooksett, LLC v. Robert Boynton et al., No 2007-675
August 20, 2008

· The requirements for establishing ownership under RSA 540:12.

· The requirements under RSA 540-A and RSA 540:13-d.

The Supreme Court reversed a District Court decision evicting the Defendants from their apartment and holding them liable for unpaid rent. The Court held that the Defendants were statutorily entitled to raise any defense, claim or counterclaim under RSA 540-A.

After failing to pay rent for two months, the Plaintiff’s "manager," acting upon behalf of the Plaintiff, served the Defendants with two demands for rent and a subsequent eviction notice. The manager also filed a writ seeking possession of the apartment and unpaid rent, along with an "Affidavit of Ownership/Tenancy" establishing the Plaintiff as the owner of the property. The Defendants claimed that the Plaintiff was not the owner of the property and that they were allowed under RSA 540:13-d to withhold rent because their apartment was uninhabitable. The trial court ruled that RSA 540-A prohibited counterclaims against a possessory action based on nonpayment of rent and that the Defendants failed to comply with the statutory provisions of RSA 540:13-d by not paying rent in escrow as it became due.

On appeal, the Defendants argued that (i) the Plaintiff failed to establish ownership of the property, (ii) the trial court erred in preventing their counterclaims, and (iii) the trial court misconstrued RSA 540:13-d.

The Supreme Court agreed that the Plaintiff had not established ownership. Although the manager filed an affidavit certifying ownership, the affidavit was not admitted as evidence at the hearing, was not referenced by the trial court, was neither notarized nor signed under oath, and was unsupported by any evidence in the record, including the manager’s testimony. The Court held that the trial court’s assumption that the Plaintiff was the owner was in error.

The Supreme Court further ruled that because the Plaintiff elected to seek unpaid rent (in addition to possession) the Defendants were entitled to raise any claim or counterclaim under RSA 540-A and RSA 540:13, III. The Court also clarified that RSA 540:13-d only required a tenant to pay rent owed in escrow if the court granted the landlord a continuance to fix the situation. Because no such continuance was granted here, the trial court erred in ruling that the Defendants were required to pay their unpaid rent in escrow.

Liam Hooksett, LLC, filed no brief. McLane, Graf, Raulerson & Middleton, P.A. of Manchester (Wilbur A. Glahn, III and Adam M. Hamel on the brief), for the Defendants.


Lawrence J. Dupont v. New Hampshire Real Estate Commission, No. 2007-893
August 21, 2008

· Whether the exemption set forth in RSA 331-A:4 applies to licensed real estate brokers.

The Petitioner appealed a Superior Court decision upholding the New Hampshire Real Estate Commission’s (NHREC) sanctions against him for violating provisions of the New Hampshire Real Estate Practice Act. The Petitioner, a licensed real estate broker who sold manufactured homes and operated a mobile home park, allegedly misrepresented to a buyer that it could build a deck off the buyer’s manufactured home. When the buyer later learned that a deck would violate code, the Petitioner refused to refund the security deposit. On appeal, the Petitioner argued that the exemption set forth in RSA 331-A:4, which addresses manufactured homes, applied to the transaction and thus exempted him from sanctions.

The Supreme Court ruled that the provisions of RSA 331-A:4, VII only exempted unlicensed brokers and not licensed brokers in a transaction in which a license is not required. Further, RSA 331-A gives the NHREC broad powers to investigate anyone engaging in real estate sales. Accordingly, it had the power to investigate the Petitioner, and because he was licensed at the time of the transaction he was subject to sanctions.

Normandin, Cheney & O’Neil, PLLC, of Laconia (James F. Lafrance on the brief and orally), for the Petitioner. Kelly A. Ayotte, attorney general (Danielle L. Pacik, assistant attorney general, on the memorandum of law and orally), for the Respondent.


Scott Ouellette et al. v. Town of Kingston, No. 2007-589
August 15, 2008

· The standard of review applicable to Zoning Boards’ reviews of determinations made by Historic District Commissions.

The Court affirmed a Superior Court ruling allowing the Intervenor, Konover Development Corporation, to construct a supermarket in Kingston’s historic district.

After interpreting the Town’s Historic Regulations, the Kingston Historic District Commission (HDC) rejected the Intervenor’s permit application. The Intervenor appealed to the Kingston Zoning Board of Adjustment (ZBA) which, after interpreting the same regulations, ruled in favor of the Intervenor. On appeal to the Superior Court, the Plaintiffs argued that the HDC’s decision was entitled to deference and the ZBA erred in holding a de novo hearing. The Superior Court ruled that a de novo standard of review was correct, but further noted that if the HDC decision was entitled to deference, there was no basis to find error.

On appeal to the Supreme Court, the Plaintiffs argued that the Superior Court erred by (i) ruling the de novo standard of review was correct, (ii) affirming the ZBA decision despite finding no error in the HDC decision, (iii) affirming the ZBA decision after the ZBA simply substituted its own uninformed judgment for that of the HDC, (iv) and giving deference to the ZBA’s interpretation of the regulations.

The crux of the Plaintiffs’ argument for a deferential standard of review relied on RSA 674:33, which they interpreted as allowing the ZBA to reverse the decision of the HDC only if the Intervenor could establish error in the HDC’s decision. The Court ruled that while the statute allows the ZBA to hear and decide appeals in which there was alleged error, this was simply a pleading requirement and not an instruction regarding the standard of review. Under RSA 674:33 the ZBA was allowed to assume the powers of any administrative official from whom an appeal was taken. The Court held that while the statute did not specifically mention a de novo standard of review, this ability to assume the authority of the HDC implied such. Having affirmed the Superior Court ruling in favor of a de novo standard of review, the Court did not need to address the Plaintiffs’ argument that the Superior Court erred by affirming the ZBA decision despite finding no error in the HDC decision. The Supreme Court ultimately upheld the ZBA’s decision, reaffirming that the trial court’s standard of review required a presumption that the ZBA’s findings were prima facie lawful and reasonable.

Michael L. Donovan, of Concord, by brief and orally, for the Plaintiffs. Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the Intervenor, Konover Development Corporation. Baldwin, Callen & Ransom P.L.L.C., of Concord (Carolyn W. Baldwin on the brief), for the New Hampshire Preservation Alliance, as amicus curiae.

Douglas R. Guy v. Town of Temple, No. 2007-784
August 21, 2008
Reversed and Remanded

· Whether a valid nonconforming use can be divested for an owner’s failure to comply with a licensing statute.

The Petitioner operated a junkyard that previously had been designated by the ZBA as "grandfathered/non-conforming use." The Superior Court determined that such designation had been forfeited by his failure to pay for and obtain a junkyard operating license.

Acknowledging that the case raised an issue of first impression, the Supreme Court looked to the case law of other jurisdictions. Concluding that the power to license is distinct from the power to zone, the Court held that unless the licensing scheme is "closely aligned" with the zoning regulations, the failure to obtain a license does not result in an abandonment of a pre-existing nonconforming use.

The Court examined the junkyard licensing requirements set forth in RSA 236:111 through RSA 236:129 and determined that they were primarily concerned with the operation of junkyards as opposed to the concern of the zoning laws to promote "uniformity of land use and stability of community growth." Accordingly, the junkyard regulations were a "pure licensing scheme," and the Petitioner’s failure to obtain a license did not divest the junkyard of its nonconforming use status.

Matthew W. Glavey, of New Ipswich, on the brief and orally for the Petitioner. Drescher & Dokmo, P.A. of Milford (Dwight D. Sowerby on the brief and orally), for the Respondent.

Steven D. Weatherhead is Counsel to Bello, Black & Welsh in Boston. His practice involves litigation and counseling on all federal and state employment issues. He also represents companies on workplace safety and health (OSHA) matters and maintains a national practice, having represented employers in state and federal courts around the country, including Massachusetts, Maine, New Hampshire, California, Colorado, New York, Vermont, Connecticut, Florida, Georgia and New Jersey.

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