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Bar News - May 15, 2009

NH Supreme Court At-a-Glance - April 2009



Administrative Law


Petition of Farmington Teachers Association, NEA-New Hampshire; No. 2007-779

April 3, 2009



  • Multiple questions raised on appeal concerning the decision of the New Hampshire Retirement System (“NHRS”) that certain payments made to eight retired public school teachers were not “earnable income” for the purposes of calculating retirement benefits.


Petitioner, Farmington Teachers Association, entered into a series of collective bargaining agreements with the school district which permitted a professional who had reached retirement age to make an election to have his/her fringe benefits counted as if they were salary with the provision that the member reimburse the district for the district’s share of the increased social security tax, state retirement and the like on the additional monies.  Eight teachers filed an election under this provision and each teacher paid back to the school the costs associated with the fringe benefits.


The NHRS became aware of the applicable provision of the collective bargaining agreement and challenged its legality concluding that the provision did not comply with RSA 100-A and advised the eight that their payments did not qualify as “earnable compensation” and that adjustments had been made to their retirement records.


The petitioners briefed three claims of error challenging the findings of the NHRS.  The Court found that “compensation” under the statute “does not include payment of the cash equivalent of a fringe benefit that must then be returned to the employer.  It stated that the teachers “did not receive any additional salary, but rather, simply, had their fringe benefits counted as if they were salary, to enhance their retirement pensions.” (emphasis in original).


The petitioners also argued that the NHRS could not exclude the payments from earnable compensation without a properly promulgated rule pursuant to Milette v. N.H. Retirement System, 141 N.H. 342 (1966).  The Court disagreed finding that the issue before the Court in Milette was whether the petitioner’s severance pay should be included in her “earnable compensation” for her last year of service and that in this case the board did not add or delete requirements contained in the plain language of the statute.


Finally, the petitioners argued that the NHRS was unjust and unreasonable in denying any further relief to the teachers in failing to reimburse them for contributions they made to the retirement system.  The NHRS reimbursed the school district the amount of money the employees had paid to cover the employer’s share of the contribution to the retirement system for four of the teachers who had not retired before the appeal.  As to the four teachers who had retired, the board waived recoupment of the benefits.  The board declined to refund retirement benefits to the four retired teachers because the teachers have all received pension benefits that they did not earn based on artificially inflatable earnable compensation figures.  In concurring with the board’s decision, the Court stated that the board had not “arrived at a conclusion which cannot legally or reasonably be made, or abused its discretion or acted arbitrarily, unreasonably, or capriciously.”


James F. Allmendinger, NEA – New Hampshire, for the petitioner. Peter T. Foley, Foley Law Office, Concord for the respondent. Kelly A. Ayotte, attorney general and Richard w. Head, associate attorney general for the State.


Appeal of Dean Foods; No. 2008-173

April 3, 2009



  • Multiple issues including whether a carrier must show earning capacity when the injury is no longer work-related.


Respondent was injured while working as a milk delivery driver for Garelick Farms in November 2003.  He suffered a lower back injury after slipping on a piece of plastic while unloading his vehicle.  He was subsequently placed on disability and paid temporary total disability benefits.  In August 2005, the carrier requested a hearing before the Department of Labor to review the compensation and the extent of claimant’s disability under RSA 281-A:48.  The hearing officer ruled that the total disability benefits should continue.  In September 2006, the carrier requested a new hearing to review the compensation and the hearing office found a change in condition based on an independent medical examination and terminated claimant’s disability benefits as of April 10, 2007.  Finally, the claimant appealed to the Compensation Appeals Board (“CAB”).


The CAB received both oral and written testimony and found the independent medical examiner’s testimony “incongruous as it [did] not comport with the diagnosis and permanency of a year prior.”  The CAB also noted that the carrier failed to introduce any evidence that the claimant has an earning capacity.  The carrier appealed.


The Court disagreed with the carrier’s argument that since the claimant’s injury ceased, it was not required to prove earning capacity.  The Court noted that RSA 281-A:48 authorizes terminating compensation in two scenarios: (1) where the compensable work-related injury has ceased; or (2) “where the claimant is capable of performing some type of work and is not able to earn, in suitable work under normal employment conditions as much as he or she earned at the time of injury.”


The carrier need not show earning capacity if it can prove that the claimant’s work related injury has ceased.  Here, the carrier introduced testimony and an independent medical examination in support of its position that the claimant’s work related injury had ceased, but the CAB was unpersuaded and because the carrier did not argue in the alternative that the claimant had an earning capacity, it did not introduce any evidence to meet its burden and the CAB’s decision must stand.  The Court found sufficient evidence in the record to support the CAB’s decision that at least some of the claimant’s symptoms were from work-related injury. 


Finally, the Court approved the CAB’s rejection of the independent medical examination in favor of it’s own findings and found that the CAB did not commit error in considering evidence when although the claimant experienced a prior work-related back injury in 1998, the claimant did not experience any back pain prior to the November 2003 incident.


James M. O’Sullivan and Elizabeth Murphy, Devine, Millimet & Branch, P.A., Manchester for the petitioners.  J. Lance Tillinghast, Wyskiel, Boc, Tillinghast & Bolduc, P.A., Dover for the respondent.


Appeal of Laurence M. Kelly, Ed.D.; No. 2008-382

April 3, 2009



  • Whether the Board of Mental Health Practice abused its discretion in applying the APA Code of Conduct and imposing discipline on the petitioner.


The appeal arose out of a consultation by Dr. Laurence Kelly a licensed psychologist who had been retained by a divorced father seeking overnight visitation with his minor daughter.  Dr. Kelly filed a report with the trial judge outlining his findings.  Dr. Kelly did not speak to the child or any of her caregivers.  As part of his findings, Dr. Kelly recommended increased visitations between the father and the daughter.  His ex-wife filed a complaint against Dr. Kelly with the Board of Mental Health Practice challenging certain statements made by Dr. Kelly in his report and alleging that Dr. Kelly was “out-of-line” and “unethical.”  A hearing before the Board ensued with the Board concluding that Dr. Kelly had engaged in misconduct by making recommendations that would require evaluation of persons Dr. Kelly did not examine – the daughter – and imposed discipline including, among other things, restricting his professional license, requiring that he engage in a period of supervision for twelve months, requiring that he provide a copy of the Board’s order to his current employers and affiliates and mandating that the order become part of his public file.


On appeal, the Court reviewed the pertinent part of the APA Code of Conduct – Standard 9.01 which accounted for the basis of the alleged misconduct.  The Court found that Dr. Kelly had repeatedly expressed that none of the opinions provided were made with respect to the daughter in particular, but were offered only with respect to his client and parent-child relationships generally.  The Court found that Standard 9.0(b) which requires that psychologists provide opinions of the psychological characteristics of individuals only after they have been examined was not implicated because the statements found in his report and testimony were offered only with respect to his patient, the father, and parent-child relationships generally.


Robert E. Murphy, Jr. and Gregory M. Sargent, Wadleigh, Starr & Peters, P.L.L.C., Manchester, for the petitioner.  Kelly A. Ayotte, attorney general and Anthony I. Blenkinsop, senior assistant attorney general for the New Hampshire Board of Mental Health Practice.


Appeal of Redimix Companies, Inc.; No. 2008-448

April 3, 2009

Vacated and Remanded


  • Whether respondent’s injury was actually caused by a work-related event or condition.


Respondent, Brandon Lafond, suffered a back injury in March 2006 after striking a pothole in a fully loaded cement mixer he was driving for his employer, Redimix Companies. Lafond had a variety of treatments including back surgery.  He returned to work on light duty, was discharged in 2006 and later returned to work for another employer in 2007.  Lafond had received treatments for lower back pain both before and after his employment with Redimix.  Redimix’s workers’ compensation carrier denied benefits on the ground that his current disability was not causally related to the March 2006 incident. In March 2007, a Compensation and Appeals Board (“CAB”) hearing officer found to the contrary entitling Lafond to temporary total disability payments retroactive to his December 2006 back surgery.  Redimix moved for a rehearing, which the CAB denied.  Redimix challenged the CAB’s finding of legal causation, that is whether his injury was actually caused by a work-related event or condition.


On appeal, the Court recited the test for finding causation noting that a claimant must prove both legal and medical causation.  When, as here, the claimant has a pre-existing disease or condition he must show by a preponderance of the evidence that his employment contributed something substantial to his medical condition by demonstrating that the work-related conditions presented greater risks than those encountered by his non-employment activities.  Because the CAB failed to analyze whether Lafond’s employment contributed “something substantial” to his condition the Court vacated and remanded the CAB’s decision for further proceedings.


Michael R. Mortimer, Wadleigh, Starr & Peters, P.L.L.C., Manchester for the petitioner.  Matthew J. Lahey, P.A., Laconia for the respondent.


Family Law


In the Matter of Monique A. Aube and Raymond N. Aube; No. 2008-130

April 3, 2009



  • Whether a property division that has become final is a judgment to which  statutory post-judgment interest may apply.

The parties were married in 1960 and filed for divorce in 2003. The respondent was retired and received a pension from his former employer.  While the parties were married, the petitioner’s right to survivor benefits under the pension was waived. The parties’ 2005 final divorce decree divided the pension equally between them and required them to name the other party as the survivor beneficiary of the pension.


In April 2007, respondent moved for a reduction in alimony due to mutual mistake arguing that the court miscalculated his monthly income which set the alimony amount and in November 2007, the trial court held a hearing and ruled that as of the effective date of the decree, November 27, 2006, the respondent owed the petitioner $276,114.43 as part of their property settlement. The court found that this amount became a judgment and that statutory interest accrued thereafter.  The trial court also heard arguments regarding the petitioner’s survivor benefit and the court was informed that during the marriage the respondent had elected to have his pension terminate upon death with no survivor benefit to the petitioner.  The court awarded the petitioner $19,400 to fund an annuity to compensate her for the lack of death benefits that she would have received under the decree but for the respondent’s prior elections and it awarded her the value of the survivor benefit.  The trial court also heard arguments that the court miscalculated his monthly income from his military disability pension which was $135 less than the amount found by the court.


In a case of first impression, the Court followed the majority of courts in other jurisdictions, which have concluded that money judgments enrolled as a result of an equitable distribution are judgments for the purpose of awarding statutory post-judgment interest and affirmed the award of post-judgment interest.  The Court also held that the trial court did not err in requiring the respondent to pay the petitioner one-half of the survivor benefit to which she was entitled under the divorce decree finding the award sustainable under an abuse of discretion standard. The court also found that the trial court did not err in declining to consider the respondent’s request for reduced alimony based on a reduction of his military pension because the trial court had not overlooked the issue in respondent’s motion for reduced alimony and subsequent motion for reconsideration.


J. Campbell Harvey, Harvey & Mahoney, P.A., Manchester for the petitioner. Richard Thorner and Gregory M. Sargent, Wadleigh, Starr & Peters, P.L.L.C., Manchester for the respondent.


In the Matter of Janice Johnson and Mark Johnson; Nos. 2008-012 and 2008-548

April 9, 2009



  • Multiple issues relating to child support orders including whether subsequent changes to the law relating to the modification of child support orders is to be applied prospectively only.


The Johnsons are the parents of three daughters who were born in 1981, 1984 and 1989.  The couple divorced in November 1993.  The final decree of divorce approved and incorporated included their permanent stipulation.  That stipulation required the husband’s obligation for support to continue until each child reached age eighteen or graduation from high school, whichever occurs later.  The permanent stipulation also required that the both the wife and husband contribute to the college education of the minor children, including tuition and room and board. 


In February 1999, in response to the wife’s petition requesting the court to determine the husband’s specific contributions towards their oldest daughter’s college expenses, the trial court required the husband to pay child support and withdrew his obligation to pay college assisted expenses.  In May 2001, the court approved a proposed modification to their permanent stipulation requiring the husband to pay the wife some $222 as child support.  In May 2007, the husband petitioned to terminate child support and the court denied the petition in September 2007finding that the child support was intended to implement the husband’s obligation towards college expenses.  In January 2008, with his appeal of the September 2007 order pending, the husband petitioned to modify his college contribution and the wife cross-petitioned to modify child support citing an increase in the husband’s income.  In June 2008, the court terminated the husband’s child support and fixed his college contribution for the youngest daughter’s freshman year and order that future college expenses be limited to fifty percent of each semester’s expenses, not to exceed $3,000 per semester.  The wife moved unsuccessfully for reconsideration and appealed.


On appeal, the Court affirmed the September 2007 denial of the husbands’ petition to terminate child support finding that subsequent changes in the law do not operate to automatically terminate the husband’s obligation to provide child support.  At the time of the orders, RSA 485:35-c read in pertinent part that the child support order shall remain as stated unless the court or other body modified the support order differently.  The 2004 amendment to RSA 458:35-c (later recodified as RSA 461-A:14 IV), which removed the pertinent language, has prospective application only and does not terminate the father’s obligation to provide child support for his daughters when they turned eighteen or graduated from high school.  The Court affirmed the September 2007 denial of the husband’s petition to terminate child support. The husband’s remaining arguments all related to perceived errors on the part of the trial court in determining the amount and manner of payment of his college contribution which the Court found to be without merit.


The spouse’s appeal alleging that the trial court’s June 2008 order granting the husband’s petition to modify his college contribution and dismissing her cross-petition was denied with the Court finding that the trial court’s termination of the husband’s child support was a proper exercise of discretion.  It found that the court’s discretionary authority in 1999 and 2001 to order that the husband’s obligation to pay child support would continue beyond either daughter’s reaching the age of eighteen years or completing their secondary school education was grounded solely in the version of RSA 458:35-c then in effect.  Once the trial court terminated the husband’s child support obligation, it was in its discretion to examine the situation anew, and to distinguish the husband’s college contribution from the mechanism of child support payments.  The Court affirmed the trial court order granting the husband’s petition to modify his college contribution, terminating his child support obligation, and dismissing the wife’s cross-petition to modify child support.


Anna Barbara Hantz, Gottesman & Hollis, P.A., Nashua for Mark Johnson. Janice Johnson, pro se.


Walker v. Walker; No. 2008-526

April 17, 2009



  • Multiple issues including whether the trial court exceeded its authority by adding explanatory text to the domestic violation petition and in denying defendant’s motion for reconsideration and whether there was insufficient evidence to support a finding of abuse.

The Walkers are married and have three minor children. The defendant lived and worked in Thetford, Vermont, while the plaintiff and the children resided in Nashua. The plaintiff, having received threats from the defendant, filed a petition for a temporary protective order alleging that she was in immediate danger after the defendant had threatened to take the children, and immediately move to Vermont where he maintained a home. At an ex-parte hearing on May 27, 2008, the trial court, with the plaintiff’s permission, added a sentence to the plaintiff’s petition which stated, in part, that the defendant had “threatened to kill her in the past ….” and it granted a temporary protective order which was finalized at a plenary hearing on June 4, 2008. 


The Court found that the plaintiff and not the court had amended the petition finding “it was well within the court’s power to document and record the clarification of an allegation in the interest of narrowing the issues.”  The Court also upheld the trial court’s decision to deny the defendant’s motion for reconsideration and that there was sufficient evidence on which the court could reasonably conclude that the defendant’s criminal threatening prompted the domestic violence petition and “constituted a credible threat at the time of the petition.”


John P. Kalled, Kalled Law Offices, PLLC, Ossipee for the plaintiff.  Daniel R. Krislov, Small & Lyons, Nashua for the defendant.


In the Matter of Manon F. Lynn and Paul J. Lynn; No. 2008-597

April 24, 2009



  • Whether the court could deviate from the child support guidelines so that neither party was responsible for child support payments and whether the court could eliminate the requirement that the mother provide insurance while she was in a nursing program.

The parties divorced in August 2005 and have four children from their marriage. One child resides on his own, one resides with the mother, and the other two reside with their father.  As of July 2006, the mother was responsible for providing health insurance coverage and paying $300.00 per month in child support, which represented a downward deviation from the guidelines because of her limited income. In April 2008, the mother filed a motion to modify her child support payments because she had been accepted into a nursing program and intended to change her employment to part-time.  The mother alleged that her part-time status would make health insurance coverage unaffordable. The trial court granted the mother’s request and modified the order so that neither party was responsible for support payments and eliminated the mother’s requirement to pay for insurance.  This appeal followed.


The Court rejected the father’s argument that the mother had become voluntarily underemployed when she decided to change her employment to part-time while attending nursing school. It found that “if the trial court decides to modify the child support order based upon a parent’s decision to attend school, it is within the trial court’s discretion not to impute income despite the voluntary underemployment.” In affirming the decision of the trial court, the Court found that RSA 458-C:5 lists “special circumstances” that would warrant an adjustment from the child support guidelines and included within the list are “significantly high or low income of the obligee or obligor” and the “economic consequences of the presence of … children.”


Justice Dalianis concurred separately stating that the Court’s opinion should not be construed to entitle a parent to reduced child support obligation “whenever the parent has voluntarily reduced her income so as to attend school.” (emphasis in original)


Manon F. Lynn and Paul J. Lynn, pro se.


Employment Law


Mackenzie v. Linehan; No. 2008-302

April 3, 2009

Affirmed in part, reversed in part and remanded.


  • Whether the trial court erred in granting defendant’s motion JNOV on plaintiff’s claim for wrongful discharge and for false imprisonment.

Plaintiff, Jay Mackenzie, appealed a Superior Court order granting the motion for judgment notwithstanding the verdict (“JNOV”) filed by the defendants, Rockingham County Sheriff Daniel Linehan and Rockingham County.  The trial court’s decision overturned a $500,000 jury verdict award in favor of the plaintiff for wrongful termination and false imprisonment. 


Mackenzie had been terminated for violating the Rockingham County Sheriff Department’s “personal behavior rule” for his off-duty behavior and sued the department and Sheriff Linehan claiming that he as wrongfully discharged and for false imprisonment alleging that sheriff had blocked the door for thirty seconds and after firing him.


To prevail on his wrongful discharge claim the plaintiff had to establish that: (1) his termination was motivated by bad faith, retaliation or malice; and (2) that he was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn.  Mackenzie argued that a rational fact finder could have reasonably found that defendant Linehan terminated him because he refused to concede that his off-duty conduct violated certain rules.  Mackenzie alleged that his termination implicates a public policy that favors truthfulness.  The Court disagreed finding that while a public policy generally supports truthfulness and that terminating an employee for refusing to lie to protect his job could implicate this public policy, no rational factfinder could reasonably have found that he was terminated for this reason.  The plaintiff had admitted to engaging in the very conduct for which he was fired.  The Court also dismissed the plaintiff’s argument that a rational juror reasonably could have found that his termination implicates a public policy protecting his off duty time.


The Court reversed the trial court’s decision to grant the defendant’s motion JNOV on the false imprisonment claim finding that the evidence established that when Mackenzie attempted to leave the hearing room, defendant Linehan stood in front of the door, with his hand on the doorknob and prevented him from doing so.  The Court reasoned that even if the plaintiff were still an employee and subject to Linehan’s supervision, Linehan did not have the legal authority to detain him in the hearing room by physically blocking the door.  The Court reversed and remanded for a new trial on the false imprisonment claim.


Peter G. Callaghan, Preti, Flaherty, Beliveau & Pachios, PLLP, Concord for the plaintiff. Stephen J. Schulthess and Jill A. DeMello, Getman, Stacey, Schulthess & Steere, P.A., Bedford for defendants.


Insurance Law


Colony Insurance Co. v. Dover Indoor Climbing Gym; No. 2008-759

April 24, 2009

Reversed and remanded


  • Whether a policy endorsement requiring gym participants to sign waivers was mandatory or permissive.

Colony Insurance Company issued a commercial general liability policy to Dover Indoor Climbing Gym.  An endorsement stated “[a]ll participants shall be required to sign a waiver or release of liability in your favor prior to engaging in any ‘climbing activity’.  Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”   Richard Bigelow accompanied his friends to the climbing gym on August 14, 2007, but did not sign a waiver.  While climbing, Bigelow fell and sustained injuries.  The gym put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that Bigelow’s failure to obtain a release from Bigelow absolved it from any duty to defend or indemnify the gym.  The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. 


The Court reversed the trial court finding that the “clear meaning of the policy is that the gym is required to actually obtain waivers from climbing participants.”  The gym had interpreted the provision to read that coverage existed as long as the gym had a policy of requiring waivers regardless of whether it actually obtained waivers from climbing participants.  The Court found that the gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy.


Doreen F. Connor, Wiggin & Nourie, P.A., Manchester for the plaintiff. Mark L. Mallory, Mallory & Freidman, PLLC, Concord for defendant Dover Indoor Climbing Gym and Shaheen & Gordon, P.A. for defendant Richard Bigelow.


Property Law


Sara Realty, LLC v. Country Pond Fish & Game Club, Inc.; No. 2008-520

April 9, 2009



  • Multiple claims including whether RSA 159 bars a cause of action for nuisance against a pre-existing gun club and whether RSA 159 et seq. is constitutional.          

Petitioner, Sara Realty, LLC is an abutter to the Country Pond Fish & Game Club, Inc. (“Country Pond”).   Country Pond has operated a shooting range in Newton since 1962 well before the town adopted its first zoning ordinance in 1973 and noise ordinance in 2005.  Sara Realty purchased a campground west of the shooting range in 1999.  In 2001, Country Pond purchased some additional forty acres between the range and the campground and proceeded with clearing some trees and after obtaining all necessary approvals.  Sara Realty filed a claim against Country Pond alleging a common law private nuisance due to the level of firearm noise and challenged the applicability of RSA 159-B.  RSA 159-B affords protection to shooting ranges from noise related regulation at the state and local levels and protects ranges from noise related litigation.  The Superior Court granted summary judgment to Country Pond based on its conclusion that RSA 159-B barred the petitioner’s action and was not unconstitutional.


On appeal, the Court found that RSA 159-B was applicable and provides protection to shooting ranges from noise-related regulation as well as from most noise-related litigation including actions for nuisance.  As there was no noise regulation in effect that predated Country Pond’s continuously operating a shooting range, RSA 159-B:2 was not implicated.  The Court also found that Sara Realty could not maintain her cause of action under RSA 159-B:5 which establishes that “a person may not maintain a nuisance action … if the shooting range was established, constructed, or being used on a regular basis as of the date the person acquired the property” because there was no dispute that the range was established, or in use, as of the date Sara Realty acquired its property. The Court also determined that because RSA 159-B:2 and :5 were alternative bars to Sara Realty’s nuisance action and sufficient to support summary judgment for Country Pond, it need not reach the constitutionality of RSA 159-B:2.


John J. Ryan, Casassa and Ryan, Hampton for the petitioner. Sumner F. Kalman and Thea S. Valvanis, Sumner F. Kalman, P.C., Plaistow for the respondent. Kelly A. Ayotte, attorney general, Lisa S. Walker (on the brief) for the State as amicus curiae.


Livingston v. 18 Mile Point Drive, Ltd.; No. 2008-622

April 24, 2009



  • Multiple issues including whether an award of specific performance was the proper remedy for defendant’s failure to deliver a deed after the plaintiff exercised an option agreement.


The plaintiff owned twenty-two acres of land in Meredith, which he agreed to sell to the defendants, with an option to repurchase a 1.5 acre lot.  The parties’ agreement was memorialized in a purchase and sale agreement (“P & S”) and a separate agreement.  The P & S granted the plaintiff an option to purchase the 1.5 acre lot for one dollar and provided that the option would be valid for one year from the date of final subdivision approval.  The option agreement included the same provisions and also specified that if the defendants were unable to deliver a deed to the 1.5 acre lot within five years, they would be required to pay the plaintiff $75,000.  The closing took place on September 17, 2002.  At the closing, the plaintiff handed the defendant’s attorney $1.00 with the defendant’s attorney memorializing receipt of the $1.00 next to paragraph five of the option agreement.


The defendant’s subdivision was approved on December 21, 2004, and recorded on December 27, 2004.  In January 2005, copies of the approved plan were sent to the plaintiff.  The defendants believed that based upon the option agreement, the term of the plaintiff’s option began on December 27, 2004 and ended a year later, in December 27, 2005.  In April 2005, plaintiff’s attorney contacted defendant’s attorney asking for an update.  Plaintiff contacted the defendant because he noticed lots being conveyed in their subdivision.  Plaintiff’s attorney then contacted the defendant’s attorney asking for an update. The defendant said that they had met or exceeded their responsibilities by giving the plaintiff notice of the subdivision approval.  Finally, in June 2006, the plaintiff wrote to his attorney stating that it appeared obvious that the subdivision had been approved and asked why there had been such a delay in conveying the 1.5 acre lot to him.  In August, the defendant’s attorney stated that the option term had expired, along with the plaintiff’s rights thereunder.  The trial court assumed, without deciding, that, the plaintiff did not exercise his option to purchase pursuant to the terms in the parties’ agreement, nevertheless, the court ruled that equity required specific performance of the option agreement because the defendant’s had breached the agreement’s implied covenant of good faith and fair dealing.  The defendant’s appealed.


On appeal, the Court found that the trial court had properly “enforced the implied covenant of good faith and fair dealing when [it] ruled that the defendant’s breached it by acting evasively and not cooperatively with the plaintiff.”  The record supported the trial court’s findings that the parties’ agreed-upon common purposes and justified expectations included the expectation that the plaintiff would retain the 1.5 acre lot.  The Court found that the trial court did not unsustainably exercise its discretion by ordering specific performance in this case. 


Charles B. Doleac and Heather Neville, Boynton, Waldron, Doleac, Woodman & Scott, P.A., Portsmouth for the plaintiff.  Russell F. Hilliard, Upton & Hatfield, Portsmouth for the defendant.


Zoning Law


Continental Paving, Inc. v. Town of Litchfield; No. 2008-370

April 9, 2009



  • Multiple issues including whether the court erred in determining the relevant criteria for a special exception and whether the ZBA is bound to accept the conclusions of experts.


Continental Paving sought a special exception to build a gravel road over land owned by the New England Power Company in order to access a parcel of land owned by the Londonderry Fish and Game Club. The road was to be located in the Wetlands Conservation District of the town as delineated in the Town of Litchfield Zoning Ordinance.  The proposed road would cross a wetland and would come within sixty-seven feet of a vernal pool.  After a hearing the Litchfield Zoning Board of Adjustment (“ZBA”) denied a special exception citing concerns about the road’s proximity to the vernal pond. The ZBA held a rehearing and denied the special exception and recommended a 100-foot buffer of natural vegetation.  The ZBA denied a second rehearing and Continental appealed to the Superior Court which vacated the decision and instructed the town to grant a request for a special exception.


The Court found that while the town could have reasonably questioned the findings and credibility of Continental’s experts they are purely speculative because there was no evidence that the ZBA actually did question the credibility or methodology of Continental’s experts and the trial court properly rejected the town’s credibility argument.  Further, the Court rejected the town’s argument that the trial court erred in finding it unreasonable for the ZBA to give weight to general information about vernal pools.  The record showed that the information upon which the ZBA based its findings of fact contained only general information.  The same factors used by the ZBA in denying the permit were specifically addressed by Continental’s experts and determined by them not to be negatively affected by the proposed road.  Based on the evidence, the trial court could reasonably have found, by the balance of probabilities, that the ZBA’s decision was unreasonable.  The Court also rejected the argument that the trial court substituted its judgment for that of the ZBA.


David E. LeFevre, Hage & Hodes, P.A., Manchester for the appellant. Morgan A. Hollis, Gottesman & Hollis, P.A., Nashua for appellees.


Auger v. Town of Strafford; No. 2008-461

April 24, 2009

Reversed and remanded


           Whether the superior court erred in reversing a planning board’s approval of a conservation development subdivision.

 The plaintiffs, Philip Auger et al., are abutters to and neighbors of a conservation development subdivision (“CDS”) proposed by Graystone Builders, Inc.  Graystone appeals an order of the superior court granting the plaintiffs’ motion for entry of a final order reversing the planning board’s approval of the CDS proposal.  Graystone proposed to build a CDS in Strafford.  To receive the planning board’s approval for a CDS, a developer must submit a CDS proposal and in addition to the CDS proposal the board may also require a yield plan.  The yield plan is an aid to the planning board in determining the number of houses that may be built in a CDS by depicting rights of way, property lines, wetlands and the like.  Graystone submitted a CDS and a yield plan, which the board approved in March 2004 and August 2005.

            The plaintiffs appealed the decision to the superior court, which affirmed the CDS, but remanded the yield plan to the board to determine whether it complied with wetlands regulations.  The plaintiffs then appealed the superior court’s approval of the board’s decision.  The Supreme Court reversed and remanded.

            On remand, the plaintiffs filed a motion for entry of final order reversing the board’s approval of the yield plan and CDS proposal.  Graystone objected arguing that the Court’s mandate required further proceedings to determine whether Graystone would suffer any undue hardship justifying the waiver of a ten-lot limit.  The superior court granted the plaintiffs’ motion and summarily reversed the board’s approval of the CDS approval.  This appeal followed

            On appeal the Court found that the superior court should have remanded the matter to the board for further proceedings concerning the waiver of the ten-lot limit.  The Court found that “rather than simply requesting a cul-de-sac design because of personal preference, the board should have undertaken an inquiry into whether any hardship or injustice merited a waiver of the ten-lot limit.”


Michael L. Donovan, Concord for the plaintiffs.  Walter L. Mitchell III and Judith E. Whitelaw, Laconia for the defendant.  Gregory E. Michael and Sheliah M. Kaufold, Wiggin & Nourie, P.A., Manchester for the intervenor, Graystone Builders, Inc.


Criminal Law


State of New Hampshire v. De La Cruz; No. 2008-328

April 9, 2009



  • Whether a police officer’s good faith reliance upon an allegedly unconstitutional ordinance serves as an exception to the exclusionary rule.

The defendant was certified as a habitual offender in May 2004 and his driving privileges were revoked for a minimum period of four years.  On August 24, 2007, he was driving an SUV through a parking lot in Hampton with his girlfriend in the passenger seat.  A Hampton police officer observed that the SUV had the base of its radio “at a very loud and unnecessary volume,” which violated the Hampton municipal ordinance.  The officer directed the SUV to stop and after a record check revealed that the defendant was a habitual defendant, the officer arrested him.  The defendant filed a motion to suppress, arguing that he was subject to an unlawful seizure because the ordinance upon which the officer relied was unconstitutionally overbroad and vague and the officer therefore lacked reasonable suspicion to make an investigatory stop.  The trial court denied his motion, stating that even if the ordinance was unconstitutional, an officer’s good faith reliance upon an ordinance is an exception to the exclusionary rule.


The Court limited its review to Part 1, Article 19 of the State Constitution which protects persons from unreasonable searches and seizures.  A warrantless search is per se unreasonable and evidence derived from the search or seizure is inadmissible unless that State proves that it comes within one of the recognized exceptions to the warrant requirement.  The Court found that enacting ordinances is a legislative function and “there is a presumption favoring the constitutionality of those regulations.”  It held that an officer’s reasonable reliance upon an ordinance or statute in forming reasonable suspicion is an exception to the exclusionary rule.


Kelly A. Ayotte, attorney general and Susan P. McGinnis, senior assistant attorney general, for the State.  Steven L. Maynard, Buchanan, Maynard & Parodi, PLLC, Nashua for the defendant.


State v. Angel Almodovar; No. 2008-010

April 9, 2009

Vacated and remanded


  • Whether the trial court can impose deferred sentences consecutively.
  • Whether the trial court has the authority to impose a deferred sentence following the deferral of probation.
  • Whether defendant must be provided counsel and a hearing.


On January 4, 1996, the defendant pleaded guilty to three counts of felonious sexual assault.  On indictment 94-S-474, he was sentenced to the New Hampshire State Prison for three-and-one-half to seven years, suspended for five years.  On indictments, 94-S-476 and 94-S-478, the defendant was sentenced to three-and-one-half to seven years on each charge, to run concurrently, deferred for five years.  The sentencing order provided that the defendant was to file a petition to continue deferral no later than January 4th of each year.  On all three of the charges, the defendant was also placed on probation for a period of five years. On June 26, 1997, the defendant was charged with a probation violation for failing to complete a sex offender program and was sentenced to one year in the house of corrections.  On May 15, 1998, his remaining sentence was suspended.  On July 26, 1999, the defendant was found chargeable on another violation of probation and the Superior Court imposed the three-and-one-half to seven year suspended sentence in indictment 94-S-474.  While serving his sentence, the deferral period on 94-S-476 and 478 ended with the defendant failing to petition to suspend the two concurrent deferred sentences. On February 15, 2001, the Superior Court brought the deferred sentences forward and imposed them.


The Court found that the trial court did not commit error in imposing the deferred sentences consecutively.  On January 4, 1996, the defendant was sentenced on all three charges.  Because the trial court did not specify that the deferred sentences were consecutive to the suspended sentence, they are treated as concurrent and all three began to run on January 4, 1996.  The trial court’s decision to impose the deferred sentences consistent with the language of the sentencing order was not error.


With respect to imposing the deferred sentences following the period of probation, the Court found that it was not error for the trial court to impose the deferred sentences on February 15, 2001 – forty-five days after the expiration of the deferral period. It held that the trial court retains the authority to impose sentence in a timely fashion following the expiration of the deferral or probationary period.


Finally, the Court vacated the order imposing the deferred sentences finding that the trial court’s failure to impose the deferred sentences without a hearing and to provide the defendant with assistance of counsel was plain error.


Kelly A. Ayotte, attorney general  and Thomas E. Bocian, assistant attorney general for the State. Robert H. Miller, Sheehan, Phinney, Bass & Green, P.A., Manchester for the defendant.


State of New Hampshire v. Wamala; No. 2007-863

April 17, 2009



  • Whether the trial court properly admitted evidence of the victim’s “time capsule,” to rebut the defendant’s claim that the victim had fabricated the allegations against him.
  • Whether the trial court properly denied defendant’s request to voir dire prospective jurors.
  • Whether the trial court properly permitted the State to impeach the victim’s sisters with their prior inconsistent statements.


The defendant, Severine Wamala, appeals his conviction of eleven counts of aggravated felonious sexual assault.  The trial court found that the defendant had sexual contact with his children.  The victim had written a “time capsule” as a sixth grade school project.  The statement in the time capsule mentioned that the victim had sex with her father.  The defendant denied ever having sex with his children and the state moved to admit the statement contained in the “time capsule” finding that the evidence was admissible under N.H. R. Ev. 801(d)(1)(B) because it rebutted the defendant’s claim that the victim had fabricated the allegations against him.  The court issued a limiting instruction admonishing the jury that is could not use the statement as evidence of the defendant’s propensity to commit such acts.  The trial court also denied the defendant’s request to voir dire potential jurors during jury selection pursuant to RSA 500-A:12-a and allowed the State to impeach the victim’s siblings with their prior inconsistent statements.  The siblings had initially told the police that the defendant had sex with them, but later recanted in interviews with an investigator for the Public Defender.


On appeal, the Court held that after the defendant had testified he had opened the door to the admissibility of the “time capsule” statements and the trial court’s limiting instruction mitigated the potential for unfair prejudice.  The Court next ruled on the defendant’s claim that his attorney had a right to voir dire jurors individually.  The Court undertook a statutory and constitutional analysis finding that while 500-A:12-a allows for attorney-conducted individual voir dire in civil cases, it does not mean that it must be applied to criminal trials as well.  The Court found that the classification between civil and criminal voir dire does not involve an important substantive right and held that a rational basis test would apply.  The Court found that there were conceivable justifications for distinguishing between civil and criminal voir dire including, inter alia, costs and speedy trial concerns and concluded that applying RSA 500-A:12-a to civil trials only does not violate the defendant’s right to equal protection under the State Constitution.  Finally, the Court held that the trial court’s admission of the siblings’ prior inconsistent statements was a proper exercise of discretion.


Kelly A. Ayotte, attorney general, and Nicholas Cort, assistant attorney general, for the State. Christopher M. Johnson, chief appellate defender, Concord for the defendant.  Severine Wamala, pro se.


State v. Hayden; No. 2008-432

April 17, 2009



  • Whether the trial court properly denied defendant’s motion to dismiss a felony charge of driving while certified as a habitual defender.


Following a hearing on January 16, 2007, Donna Hayden was certified as a habitual defender.  The certification was based upon seven convictions for violation-level offenses and one conviction for a class B misdemeanor for driving after revocation, subsequent offense.  Her driver’s license was suspended for a minimum of one year and her registration was suspended indefinitely.  On March 8, 2007, Hayden was arrested for driving a motor vehicle while a habitual defender order was in effect.  In June of 2007, she was indicted for the felony offense of driving while certified as a habitual defender under RSA 262:23, III.  The defendant filed a motion to dismiss, arguing that she could not properly be charged with a felony offense because her certification as a habitual defender was not based upon any conviction for driving while intoxicated, class A misdemeanors or felonies. The defendant argued that because RSA 262:23, III does not designate a class, the term “any misdemeanor” in the statute only refers to class A misdemeanors under RSA 625:9, IV(a).  The trial court denied the motion and found her guilty, sentencing her to twelve months, fourteen days to be served stand-committed and the remainder to be served on administrative home confinement.


On appeal, the Court held that viewed in the context of the statutory scheme, “the phrase ‘any misdemeanor’ motor vehicle conviction encompasses both Class A and B misdemeanors.”


Kelly A. Ayotte, attorney general, Susan P. McGinnis, senior assistant attorney general for the State.  Christopher M. Johnson, chief appellate defender, Concord for the defendant.








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