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Bar News - February 13, 2009


NH Supreme Court At-a-Glance - January 2009, Part I

By:

Administrative

Appeal of State Employeesí Association of New Hampshire, Inc., SEIU, Local 1984 (New Hampshire Public Employee Labor Relations Board)
January 14, 2009
Reversed and Remanded

Whether the contract bar rule set out in RSA 273-A:11, I(b), specifically the portion indicating that a certified representative is insulated from challenge during the term of a collective bargaining agreement, bars certification of new representatives with petitions filed on July 9, 2007 when the collective bargaining agreement was reduced to writing and funded on June 27, 2007 by the legislature but not signed until July 19, 2007.

The State and State Employees Association (SEA) began negotiating the 2007-2009 collective bargaining agreement (CBA) in January of 2007, and finalized it on June 14, 2007. The agreement was submitted to the joint committee on employee relations for approval, and its cost terms were funded by the legislature on June 27, 2007. On July 5, 2007 union member voting on ratification closed, and on July 9, 2007 SEA officials certified the CBA was ratified. Also on July 9, 2007, the New England Police Benevolent Association (NEPBA) filed the instant petition for certification as representatives. On July 19, 2007 the governor and SEA president signed the 2007-2009 CBA. SEA moved to dismiss the petitions on the ground they are barred by the contract bar rule set out in RSA 273-A:11, I(b). The New Hampshire Public Employee Labor Relations Board (PELRB) did not dismiss the petitions, and the SEA moved for a rehearing which was denied. The representation election held in January 2008 elected the NEPBA, and this appeal followed.

The Court will not set aside a ruling of the PELRB unless there is a demonstration by a "clear preponderance of the evidence that the order is unjust or unreasonable." The contract bar rule, RSA 273-A:22, I(b), bars the election of a new representative unless the election occurs "not more than 180 nor less than 120 days prior to the budget submission date in the year such CBA shall expire." The PELRB administrative rules provide, in New Hampshire Administrative Rules, Pub. 301.01, that "a certification petition may not be filed sooner than 210 days nor later than 150 day before the employerís budget submission date in the year that the agreement expires." The Court determined that NEPBAís contention that the petitions for certification were not filed during the term of the CBA since the 2005-2007 CBA had expired but the 2007-2009 CBA had not been executed yet incorrect given the pertinent statutes. Execution of CBAs is merely ministerial since a CBA is enforceable once the proper legislative body ratifies the costs, and it has been reduced to writing. Given the statutory scheme, and the fact that when the NEPBA filed its petitions, the 2007-2009 CBA had been reduced to writing, cost items approved by the legislature and ratified by union vote, the CBA was enforceable and NEPBA filed its petitions during the term of the 2007-2009 CBA.

The National Labor Relations Board contract bar rule is administrative rather than statutorily based so that the Court could not use its case law to make a decision concerning New Hampshireís statutorily created scheme, and the Court could not say how the NLRB would decide this case since they have flexible discretion to apply the contract bar rule unlike New Hampshireís mandatory application. Further, none of the other states have applicable or similar statutory schemes which to uphold NEPBAís arguments either, and the Court concluded that the PELRB erred in its ruling and must be reversed.

Cook & Molan, P.A., of Concord (Glenn R. Milner on the brief and orally), for the petitioner.

Nolan Perroni Harrington, LLP, of Lowell, Massachusetts (Peter J. Perroni on the brief and orally), for the respondent.

New Hampshire Association of Counties & a. v. State of New Hampshire & a.; 2008-390
January 16, 2009
Affirmed

Whether legislative enactments concerning the system of payment and delivery for long term care for the indigent elderly and disabled violate Part I, Article 28-a of the New Hampshire Constitution.

In 1998 the legislature passed SB 409, which aimed at reforming the system of payment and delivery of long term care for the indigent elderly and disabled. Prior to SB 409, the counties had been responsible for paying certain portions of Old Age Assistance (OAA), Local Medical Assistance Contribution (LMAC) and Aid to the Permanently and Totally Disabled (APTD), but under SB 409 the counties also became laible for paying a share of the cost of medical care for all those eligible for a nursing home but receiving care under a Home and Community Based Care (HCBC) waiver. It also contained a sunset provision which repealed RSAs 167:18-b, and 167:18-f which defined the OAA, APTD and LMAC on June 30, 2003, which sunset provision the State has extended until 2013. SB 409 required county approval prior to becoming effective; all the counties approved SB 409. In 2005, the legislature passed Laws 2005, Chapter 177 which increased LMAC payments, in 2007 the legislature passed Laws 2007, Chapter 263 which realigned and consolidated this payment scheme, and which also increased the county share of nursing homes and HCBC payments for OAA and APTD recipients for fiscal years 2009-2013. However, hold harmless provisions and billing caps provided that the counties would not have to pay any more than they were already under the previous statutory scheme. The counties argue that the extension of the sunset provision, the increase in the share of the nursing home payments and the increase in the LMAC obligations violate Part I, Article 28-a of the New Hampshire Constitution.

The Court will not hold a legislative act unconstitutional "unless a clear and substantial conflict exists between it and the constitution." Article 28-a provides that the State shall not mandate new or expanded responsibilities to any political subdivision in such a way as to necessitate additional local expenditures unless approved for funding by vote of the local legislative body. The Court determined there was no expansion here, and no additional fiscal obligation since the net effect of the statutory scheme has been to continue an obligation already in existence. The sunset provision does not operate to violate Article 28-a either, since although it has been extended, RSA 167:18-b has been repealed. Second, nothing in SB 409 indicates the RSA 167:18-bís repeal would end the countiesí fiscal obligations. The increased payments under Laws 2007, chapter 263 does not violate Article 28-a either since it contains a cap that limits the total payment to what the county would have paid under the previously repealed RSA 167:18-b. Consequently, the Court found that Article 28-a has not been violated.

Devine, Millimet & Branch, P.A. of Concord (Robert E. Dunn, Jr. on the brief and orally), for the plaintiffs.

Ransmeier & Spellman, P.C. of Concord (Andrew B. Livernois on the brief and orally), for the defendants.

New Hampshire Municipal Association, of Concord (Cordell A. Jonston on the joint brief), as amicus curiae

New Hampshire School Boards Association, of Concord (Theodore E. Comstock on the joint brief), as amicus curiae.

Criminal

The State of New Hampshire v. Raymond K. Fournier; 2008-615
January 8, 2009
Remanded

Whether the provisions of RSA 135-E:10 and RSA 135-E:15 violate Part I, Article 23 of the New Hampshire Constitution by abrogating the privilege of certain communications and authorizing the release of confidential and privileged material concerning sexual offenders in a retrospective manner by impairing or removing vested rights acquired under existing laws.

The respondent pled guilty in 1994 to seven counts of aggravated felonious sexual assault and was sentenced to five to fifteen years in the New Hampshire State Prison (NHSP). During his time at the NHSP, the defendant had mental health treatment, and participated in the sexual offender treatment program (SOTP) after signing limited confidentiality waivers and a treatment contract with a limited waiver of confidentiality. In January 2008, the department of health and human services (DHHS) assembled a multidisciplinary team to evaluate whether the respondent is a sexually violent predator eligible for civil commitment under RSA 135-E, which allows involuntary treatment for dangerous sexually violent predators who do not have mental disease. After reviewing a number of documents, including confidential ones, the multidisciplinary team determined the respondent met the definition and the State petitioned for civil commitment pursuant to RSA 135-E. The Stateís witness list consisted of many of the respondentís NHSP mental health treatment providers and the State moved to compel testimony when one of the health providers declined to answer deposition questions due to professional ethics rules protecting the patient health care provider relationship. The trial court made an interlocutory transfer of a question of law.

The Court determined that neither RSA 135-E:10, I, which provides in relevant part "the doctor-patient privilege under RSA 329:26, privileged communications pursuant to RSA 330-A:32, or other similar statutes or rules shall not apply in proceedings under RSA chapter 135-E," nor RSA 135-E:15, I which provides "relevant information and records that are otherwise confidential or privileged shall be released to the Ö multidisciplinary team Ö for the purpose of Ö determining whether a person is or continues to be a sexually violent predator" violated the New Hampshire Constitution, Part I Article 23 against retrospective laws. Under Part I, Article 23, the Court conducts a two part test to determine if a law is unconstitutionally retrospective: 1) did the legislature intend for the law to apply retrospectively; if so then 2) is the retroactive application constitutionally permissible. The Court found RSA 135-E:19 applied retroactively because of an express legislative demand within the statute mandating retroactive application. The Courtís inquiry was thus limited to whether the "statutes take away or impair vested rights, acquired under existing laws, or create a new obligation, impose a new duty or attach a new disability in respect to transactions or considerations already past."

The Court determined that testimonial privileges are subject to retrospective alteration by the legislature because these privileges operate as rules of evidence and as such are creatures of public policy which are not absolute, but which "must yield when the disclosure of information is essential." As to confidentiality, the Court has never recognized "a constitutional right to the privacy of medical information on behalf of incarcerated persons," and any such right can only be said to exist via statutory creation, administrative regulation or common law torts. As such, the Court found that the defendant has not acquired a vested right to medical confidence.

The Court held that the Part I, Article 23 applies to contracts through the contract clause, but that in this case, there no contractual rights to confidentiality impaired by either RSA 135-E:10 or 135-E:15. The Court assumed there was a contractual relationship, but found that given the nature of the limited confidentiality advisories signed by the defendant and the fact that he signed a waiver of confidentiality, the defendant does not have contractual rights to confidentiality.

Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney general, on the brief and orally), for the State.

Mark A. Larsen, public defender, of Concord, on the brief and orally, for the defendant.

The State of New Hampshire v. Dean Fletcher; 2008-055
January 8, 2009
Reversed

Whether the defendantís due process rights under the State and Federal Constitutions were violated when the trial court amended his sentence more than a year after he was originally sentenced.

After a jury trial, the defendant was convicted of four counts of aggravated felonious assault for acts which occurred between 1981 and 1984. His sentenced on December 27, 2007, to serve three concurrent terms of seven and a half to fifteen years on the first three charges, and one consecutive term of seven and a half to fifteen years on the fourth. After his commitment, the State moved to amend his sentence because the defendant was entitled to good time credit under the then repealed statute, RSA 651:55-b (1979 & Supp. 1982). The trial court granted the Stateís motion, which the defendant now appeals on the basis that the trial courtís decision violates his due process rights under the State and Federal Constitutions.

The Court ruled that while trial judges have broad discretionary powers with regard to sentencing, "due process requires a sentencing court to clearly communicate to the defendant the exact nature of the sentence as well as the extent to which the court retains discretion to modify it." Only two circumstance exist where the trial court retains jurisdiction to modify the defendantís sentence after a final sentencing without violation of the defendantís due process rights: 1) when there has been a clerical error or 2) the sentence is illegal and void.

The Court found that where the original sentence is clear as to intent, and the amendment resulted in a dramatic change in the maximum sentence, then the trial court was not performing a fix of a clerical error. Here, no ambiguity exists, and the sentence is presumed to reflect the intent of the sentencing judge. At no time did the trial court express any intent that the third sentence be served consecutively rather than concurrently. Further, the amendment resulted in a dramatic change in the maximum sentence. Therefore, the trial court was not acting to correct a clerical error. The Court further found that the original sentence was valid because even if the trial court mistakenly added a disciplinary period in the belief that RSA 651:2, II-e applied to the defendant, that does not invalidate the entirety of the sentence. Hence the trial court had no authority to amend the sentence as void and illegal. Therefore the trial court should not have amended the sentence, and the Court reversed the amendment of the defendantís sentence.

Kelly A. Ayotte, attorney general (Rosemary Wiant, attorney, on the brief and orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief, and Christopher M. Johnson, chief appellate defender, orally, for the Defendant.

The State of New Hampshire v. Gregory A. Gaylor; 2007-446
January 9, 2009
Reinstatement of appeal in docket no. 99-452 is Denied; Remaining issues in docket no. 2007-446 are Declined

Whether the defendantís appeal, dismissed pursuant to the fugitive disentitlement rule should be reinstated when he has been extradited to the United States and claims insufficient evidence and actual innocence.

Whether the defendantís appeal was untimely filed when he filed it one year after the sentence amendment appealed from and when he filed a mandatory appeal rather than the required discretionary appeal.

In December 1997, the defendant was indicted on multiple theft counts and one count of willful evasion of the New Hampshire business profits tax. In April of 1999, while the jury was deliberating at his trial, the defendant absconded and was found guilty and sentenced in absentia to fourteen and a half to twenty nine years in state prison. While the defendant was a fugitive from justice, his attorneys filed an appeal on his behalf, which was dismissed due to his fugitive status. The defendant was arrested in Switzerland in November and extradited to New Hampshire in August of 2000, at which time he began to serve his sentences. In 2001, the defendant filed a motion for reconsideration of the October 1999 order dismissing his appeal, which was denied without prejudice. In July 2007 the defendant filed the instant appeal alleging errors with the 1999 convictions and sentences and arguing extraordinary circumstances keep the fugitive disentitlement rule from barring his appeal.

The fugitive disentitlement rule "allows the court to dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal." The rule is based on the theory that a fugitive has abandoned or waived his legal right to appeal, and serves to promote the efficient operation of the appellate process, the dignity of the appellate court and to serve as a deterrent. Ordinarily a dismissal under this rule is made with prejudice and an appeal will not be reinstated unless there are extraordinary circumstances. The Court found no extraordinary circumstances which would recommend the appeal for reinstatement since the trial court disbelieve the defendantís claims of actual innocence and conspiracy.

Further, the Court found the defendantís appeal untimely since he appealed a May 2006 sentence amendment in June of 2007. Any appellate rights had long since passed by the time the appeal was filed. Even if the appeal was not time barred, the Court determined it need not accept the appeal since the defendant filed a mandatory appeal and when instructed to file a memorandum as to why his appeal was mandatory rather than discretionary, the reasoning did not convince the Court, and as such, the Court declined to accept it.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief), for the State.

Gregory A. Gaylor, by brief, pro se, and Richard E. Samdperil, of Exeter, orally, for the defendant.

The State of New Hampshire v. Eric Hebert; 2007-610
January 29, 2009
Affirmed

Whether the superior court erred by allowing evidence of the defendantís prior felony conviction under former New Hampshire Rule of Evidence 609(a).

Whether the superior courtís lack of a limiting instruction as to the use of the evidence of the defendantís prior felony conviction only for impeachment purposes requires the conviction for simple assault to be reversed under State v. Skidmore.

The record supports that the defendant and Eric Picard worked for a drywall business, and shared an apartment together for several months. When Picard moved out, he owed the defendant a sum of money, which the defendant continued to pursue while Picard actively avoided him. One day, the defendant followed Picardís car to a gas station, and when Picard stopped, the defendant got out of his car, started an altercation and broke Picardís jaw. Picard alleged the defendant struck him with a long hard object, while the defendant indicated it was just his fist. After the altercation, the two went back to Picardís sisterís house in order for Picard to borrow some money from her husband to pay back the defendant. The defendant acted in a threatening manner and told all present that he should have broken Picardís legs.

At trial, the defendant admitted to striking Picard, but only with his fist, and only because Picard had a reputation for being dangerous and violent, and he also admitted to lying to the police about Picard "throwing the first punch." The State asked the defendant on cross about a prior felony conviction to impeach his testimony under Rule 609(a). The defendant admitted to the felony conviction for operating a motor vehicle after being certified as a habitual offender in 1998. The jury convicted the defendant of simple assault.

Under Rule 609(a) prior felony convictions are admissible to impeach a defendant and give the jury a basis for determining the defendantís truthfulness so long as the probative value is not outweighed by prejudicial effect. The Court found that in asserting self defense, the defendant was asking the jury to believe his version of events, so that his credibility was very important, while a habitual offender crime gives insight into the defendantís character by showing his respect for the laws of society. Even though the trial court did not explicitly apply the factors for prejudice, the Court found that the use of the prior felony conviction could not have been inherently horrifying, and the type of crime was so dissimilar that it was unlikely to have caused prejudice.

Under Rule 609(a), the trial court is required to give a limiting instruction due to the inherently prejudicial nature of a prior felony conviction. Under State v. Skidmore, the absence of such an instruction is error unless the defendant waived his right to it on the record. Skidmore created an exception to the contemporaneous objection ruled and allowed appellate review even when the issue had not been preserved by timely objection. The Court overruled Skidmore to the extent that it created an exception to the contemporaneous objection rule for the reason that it is no longer necessary given that Supreme Court Rule 16-A creates an exception to the contemporaneous objection rule so that the Court has the discretion to review "unpreserved error on appeal for plain error that effects substantial rights." The Court did not impose its new rule on this defendant, but rather to any trial commenced on or after the date of the Courtís holding. Instead, the harmless error rule, that error is harmless if the other evidence, minus that which is inadmissible, overwhelmingly proves the defendantís guilt, was applied to this case.

The Court determined that beyond a reasonable doubt, the admission of the prior habitual offender conviction did not affect the verdict since the Stateís other evidence of guilt was overwhelming, the defendant impeached his own credibility by admitting that he lied to the police, undermined his own explanation of the assault by being inconsistent. Any other inferences drawn by the jury from the admission was not significant given the different nature of the two offenses and the lapse of time between them. Therefore, the trial courtís failure to give a limiting instruction was harmless error.

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

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

The State of New Hampshire v. James Moran; 2008-026
January 29, 2009
Affirmed

Whether the defendant waived his ability to challenge his suspended sentence by negotiating a plea with the State.

Whether the trial court has the authority to suspend a misdemeanor jail sentence.

The defendant was convicted of committing an unfair or deceptive trade practice in violation of the Consumer Protection Act (CPA) and sentenced to twelve months in the house of correction. He was also prohibited from "owning, operating or managing a construction or building trades company for ten years." He began serving his sentence in December of 2004, and then pled guilty to another CPA misdemeanor violation in March of 2004. He was sentenced to an additional twelve months in the house of corrections, suspended, with the proviso that his suspended sentence could be imposed after a hearing at the Stateís request. In April 2007, when the defendant had finished the first sentence, but remained on probation, the State moved to bring forward the second suspended sentence due the defendantís violation of the good behavior order and the ten year proscription. After a hearing, the trial court found that the State had met its burden of proof, and sentenced the defendant to twelve months in the house of correction, with three month suspended for a period of ten years. The defendant appealed.

The Court determined that the defendant may challenge his sentence even if he negotiated a plea as long as he preserved the issue below for the reason that a defendant may not, via waiver, make an illegal sentence legal, even if he negotiated knowingly and willingly.

The Court declined to add a time cap to the trial courtís ability to suspend a misdemeanor sentence. RSA 651:20 (2007) does not contain an express limit on how long a sentence may be suspended, rather it grants the trial court broad powers to "suspend any portion of an original sentence while it remains unserved." Prior to enactment of RSA 651:20, which does not contain a cap for suspension of misdemeanor sentences, the legislature limited the suspension of a misdemeanor sentence to three years. The Court assumes this was a deliberate action, especially considering that the court has questioned the lack of temporal limits in the past, and the legislature has amended the statute five times since then without adding any cap. Further, RSA 651:20 explicitly states it is the only legislative limitation on the judicial exercise of authority to suspend incarceration, and the Court declined to read into the statute words not put there by the legislature so that the trial courtís ability to suspend the defendantís sentence was within its discretion.

Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State.

Paul Borchardt, assistant appellate defendant, of Concord, on the brief and orally, for the defendant.

The State of New Hampshire v. Dean Fletcher; 2008-055
January 8, 2009
Reversed

Whether the defendantís due process rights under the State and Federal Constitutions were violated when the trial court amended his sentence more than a year after he was originally sentenced.

After a jury trial, the defendant was convicted of four counts of aggravated felonious assault for acts which occurred between 1981 and 1984. His sentenced on December 27, 2007, to serve three concurrent terms of seven and a half to fifteen years on the first three charges, and one consecutive term of seven and a half to fifteen years on the fourth. After his commitment, the State moved to amend his sentence because the defendant was entitled to good time credit under the then repealed statute, RSA 651:55-b (1979 & Supp. 1982). The trial court granted the Stateís motion, which the defendant now appeals on the basis that the trial courtís decision violates his due process rights under the State and Federal Constitutions.

The Court ruled that while trial judges have broad discretionary powers with regard to sentencing, "due process requires a sentencing court to clearly communicate to the defendant the exact nature of the sentence as well as the extent to which the court retains discretion to modify it." Only two circumstance exist where the trial court retains jurisdiction to modify the defendantís sentence after a final sentencing without violation of the defendantís due process rights: 1) when there has been a clerical error or 2) the sentence is illegal and void.

The Court found that where the original sentence is clear as to intent, and the amendment resulted in a dramatic change in the maximum sentence, then the trial court was not performing a fix of a clerical error. Here, no ambiguity exists, and the sentence is presumed to reflect the intent of the sentencing judge. At no time did the trial court express any intent that the third sentence be served consecutively rather than concurrently. Further, the amendment resulted in a dramatic change in the maximum sentence. Therefore, the trial court was not acting to correct a clerical error. The Court further found that the original sentence was valid because even if the trial court mistakenly added a disciplinary period in the belief that RSA 651:2, II-e applied to the defendant, that does not invalidate the entirety of the sentence. Hence the trial court had no authority to amend the sentence as void and illegal. Therefore the trial court should not have amended the sentence, and the Court reversed the amendment of the defendantís sentence.

Kelly A. Ayotte, attorney general (Rosemary Wiant, attorney, on the brief and orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief, and Christopher M. Johnson, chief appellate defender, orally, for the Defendant.

Family Law

Wesley C. Pike, Jr. v. Anu R. Mullikin & a.; 2008-268
January 14, 2009
Affirmed in part; Reversed in part; and Remanded

Whether the plaintiffís legal malpractice claim concerning the efficacy of his antenuptial agreement should be barred by judicial estoppel, or fairness and public policy when the plaintiff settled the divorce rather than challenging the antenuptial agreement at the divorce proceedings.

Whether the plaintiff can prove the causation element of a legal malpractice claim when the validity of the antenuptial agreement was not tried at the original divorce proceeding because the plaintiff settled out of court.

In November 1998, Pike married Mary C. Bekaert, eleven days prior to which they had entered into an antenuptial agreement. The agreement was prepared by Mullikin, and signed at Pikeís office. Mullikin represented Pike, while Bekaert did not have representation, but had hired Richard Glidden, a Massachusettes attorney used by Pike in real estate transactions, to advise her with regards to the agreement. Glidden signed Exhibit C attached to the agreement, which stated that Bekaert had voluntarily executed the agreement, had consulted Glidden and been advised of her rights before signing. The antenuptial agreement protected Pikeís family owned business from division on divorce to preserve it for his three children by a prior marriage, and provided that Bekeart was not entitled to assets held in Pikeís name, or to alimony. Six years later, Bekaert filed for divorce, and contested the validity of the agreement. The family division granted a partial temporary stipulation awarding Bekaert $3,500 in alimony, and advised mediation. Fearing the antenuptial agreement would not be upheld, Pike and Bekaert negotiated a permanent stipulation giving her $718,000, which both signed and certified to the family division that they were satisfied with the resolution of the divorce was fair.

Pike filed a legal malpractice suit against Mullikin, alleging negligence in the preparation of the antenuptial agreement. Summary judgment was granted in the defendantís favor.

The Court found the trial court erred in holding that the doctrine of judicial estoppel bars the suit. Judicial estoppel bars a party from relying on an argument at one point in the case while relying upon the contradictory argument to prevail at another point in a situation where "the partyís later position is clearly inconsistent with the partyís earlier position." The record below shows that Pikeís concern that the antenuptial agreement was invalid led him to negotiate the permanent stipulation rather than risk losing half his assets by challenging it in court. It is not unreasonable based on this fear that he would therefore certify he was satisfied with his stipulation as fair nor inconsistent that he would claim Mullikin committed malpractice in drafting the agreement since his purpose in the stipulation and in the certification that it was fair was to avoid challenging it in court.

Further, the Court held that it was error for the trial court to bar the malpractice suit on the basis of public policy favoring settlements because Pike is not seeking to undermine his settlement, "he seeks only to put himself in the place in which he expected he would be if the antenuptial agreement had been enforced by the court."

Finally, it was error for the trial court to determine Pike could not prove the causation element of the malpractice claim because he failed to litigate the validity of the antenuptial agreement during the divorce proceedings. Pike need not establish the validity of the agreement prior to the suit in order to file, nor to survive summary judgment. He need only establish a question of material fact as to the validity, which may be determined in this proceeding. Therefore, the Court reversed and remanded the case, affirming the trial court only as to the denial of Pikeís motion for summary judgment.

Francis G. Holland, of Nashua, by brief and orally, for the plaintiff.

Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (William C. Saturley on the brief and orally), for the defendants.

Landlord/Tenant

Kathleen Wass v. Carolyn Fuller; 2008-1260
January 16, 2009
Affirmed

Whether the defendant acted mistakenly rather than willfully under RSA 540-A:3 (2007) when she refused to provide natural gas for her tenantís apartment and so required the trial court to award $27,000 in damages to the tenant.

The plaintiff rented an apartment from the defendant, which was serviced by multiple propane tanks controlled by both the plaintiff and the defendant. On December 27, 2007, in a landlord tenant case, the district court issued a notice of judgment in the defendantís favor due to the plaintiffís non payment of rent. During the week of December 30, 2007, in anticipation of the eviction, the defendant had the gas company place the entire account in her name, and requested the tanks be filled. When the company came to fill the tanks, it was found they were empty, and the delivery person locked them down pursuant to company policy. The plaintiff requested him to fill her tank, and he responded by telling her he had strict orders to lock the tanks down. The defendant admitted to speaking with the gas company and alleged it was the gas company that refused to fill the tanks. The plaintiff filed a petition for relief pursuant to RSA 540-A:4, VIII, and the district court issued a temporary order requiring the gas service be restored until execution of the writ of possession in the landlord tenant case. The defendant instructed the gas company not to unlock the tanks. After a hearing on January 23, 2008, the trial court found the defendant had willfully caused the utility to lock the tanks in violation of RSA 540-A:3, I, and awarded the plaintiff $27,000, which represented $1,000 per day of she was without the gas.

RSA 540-A:3 provides that a landlord should not willfully cause the interruption or termination of any utility services. A violation of this statute entitles an award of actual damages or $1,000, whichever is greater, for each day the condition continues. The Court found that to act willfully under RSA 540-A:3 means voluntarily and intentionally, not mistakenly. It was within the trial courtís discretion to determine that the defendant willfully turned off the gas considering that the defendant admitted to speaking with the gas company concerning the plaintiffís request for gas, and conceded that she told the gas company not to unlock the plaintiffís gas tank. The trial court was required to award $27,000 under the statute once it recognized a violation since RSA 540-A:3 gives no discretion to the trial court to award less than the full statutory damages when there has been a willful violation. Therefore the Court affirmed the trial courtís decision.

Kathleen Wass, pro se, filed no brief.

Law Office of Jashua L. Gordon, of Concord (Joshua L. Gordon, on the brief), for the defendant.


NH Supreme Court At-a-Glance - January 2009, Part 2




Elizabeth E. J. Nickerson is a graduate of Franklin Pierce Law Center and a recent admittee to the bars of New Hampshire and Massachusetts. She clerked for the firm of Crisp, Barrett, and Uchida, of Concord, New Hampshire, and has recently been staying at home with her children.

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

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