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Bar News - February 19, 2010

NH Supreme Court At-a-Glance - January 2010


Criminal Law

The State of New Hampshire v. Reno Demesmin
January 28, 2010

  • Whether the trial court erred when it permitted the re-evaluation of the Defendantís competency to stand trial.
In October 2006, a grand jury indicted the Defendant on one count of first degree assault. Defense counsel moved for an evaluation of competency because of possible intellectual disability. The chief forensic examiner for the State of New Hampshire examined the Defendant. The Doctor concluded that there was no evidence that the Defendant was able to stand trial. However, he expressed concerns that the defendant was malingering. The parties entered into a stipulation stating that "there is a question as to the Defendant is malingering" the defendant "shall be found incompetent." In June 2007, the trial court held a hearing to determine whether that Defendant was a danger to himself or others.

The trial court found him dangerous and ordered that he be evaluated for the appropriateness of voluntary commitment. Based on this the State moved for a second competency evaluation. Over the defendantís objections, the trial court granted the Stateís motion. The Defendant was re-evaluated and found competent to stand trial. At trial, a jury found the Defendant guilty of first degree assault. The Defendant argued that the Court lacked jurisdiction since ordering a dangerousness evaluation, the Court essentially dismissed the original indictment against him. The New Hampshire Supreme Court disagreed.

N.H. R.S.A. 135:17-a, I specifically requires that the trial court to find by "clear and convincing evidence that the defendant cannot be restored to competency" in order for the case against the defendant to be dismissed without prejudice. The Court found that the trial court made no such finding and as a result, the indictment was not dismissed.

Finally, the Court held that trial courts "have inherent authority and obligation to order an initial psychiatric or psychological evaluation of a defendant to determine competency to stand trial. A court also has the authority to order a second competency evaluation upon request of the state where the defendant has submitted to psychological or psychiatric examination by defense experts, and has indicated an intention to rely on the testimony at trial."

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief, for the defendant.

The State of New Hampshire v. Christopher Horak
January 14, 2010
Reversed and remanded

  • Whether the trial court erred in finding that the State provided both that the complainant was mentally defective and that the defendant knew that she was mentally defective.
  • Whether the complainant was competent to testify.
The Defendant in this case was convicted in the Manchester District Court of having sexual contact with a person thirteen years of age or older whom he knew to be mentally defective.

The Supreme Court first examined the record to determine whether the complainant was competent to testify at trial. Here, the Court found the complainant was not. The complainant was a twenty two year old woman who lived with the Defendant and her mother. The complainant was unable to determine the difference between the truth and a lie. As a result the Court concluded that the complainant was not competent.

However, the Defendant in this case also argued that the State failed to prove that the complainant was mentally defective and that the defendant knew she was mentally defective. The Court addressed this argument "because if the evidence was insufficient to support the conviction, the Double Jeopardy clauses of the New Hampshire constitution and the United States Constitution would preclude a new trial." Here the Court found that the complainant was mentally defective AND that the Defendant knew this as he had been living with the complainantís mother for nine years.

Orville B. Fitch, II, acting as attorney general (Thomas E. Bocain, assistant attorney general, on the brief and orally), for the State.

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

Family Law

In the matter of Deborah A. Stapleton and Joseph E. Stapleton
No. 2009-013
January 29, 2010

  • Whether the trial court lacked authority to revise a previous order to correct an error.
The parties in this case were married on January 12, 1985. The wife filed for divorce on October 24, 2006. On December 2, 2006, the husband retired from his job with the Federal Aviation Administration. In January of 2007, the trial court entered a temporary decree awarding the parties equal shares of the husbandís monthly pension benefits. In March of 2007 the trial Court ordered that "Neither party shall transfer, encumber, hypothecate or in any way deal with any pensions of other tax deferred assets in their respective names, except that Husband shall be entitled to collect his [FAA pension] in the currently monthly amount of $5,279.00."

At the final merits hearing of the wifeís divorce petition on October 6, 2008, the parties entered into a stipulation whereby they agreed that the wife was entitled to forty-five percent of the husbandís pension and that she would receive a credit and reimbursement of her percentage during the pendency of the action to be determined by the trial court.

The trial court then awarded the wife 45% interest in the FAA pension "retroactive to the filing of the Petition for Divorce." The husband moved for reconsideration contending that the court erred in modifying the 2007 temporary restraining order which awarded the husband 100% of his pension. The trial court denied the Motion to Reconsider stating that the order merely awarded the husband the "useí of the entire monthly pension because to do so otherwise would have created a financial crisis while this divorce was pending." The husband appealed arguing that the trial court lacked the authority to reverse the order it made eighteen months earlier awarding him one hundred percent of his pension pending a final decree.

The New Hampshire Supreme Court found that the husbandís argument was based on a faulty premise, stating that the trial court did not divide his pension in its March 2007 temporary order. Instead, the order allowed the husband to retain the monthly income while the divorce action was pending. However, the Court went on to explain that even if the husband was correct "there can be no question of the inherent power of the Court to review its own proceedings to correct error or prevent injustice." (Emphasis added by the Court.) In so holding, the Supreme Court affirmed the trial courtís ruling.

John A. Macoul, of Salem, by brief and orally, for the petitioner.

Frasca & Frasca, P.A. of Nashua (Stephen J. Frasca on the brief and orally), for the respondent.

Michelle Hemenway v. Edmund Hemenway, Jr.
No. 2008-829
January 29, 2010
Affirmed in part, reversed in part, and remanded

  • Whether the trial court lacked subject matter jurisdiction and personal jurisdiction over the Defendant.
The parties were married and have four children. They lived together in Florida until July 16, 2008. The parties reached a mediated divorce settlement in Florida on May 14, 2009. In the beginning of August 2008, the wife applied for and received a temporary restraining order against her husband for domestic abuse. At the hearing on the domestic violence petition the husband failed to appear. The family division issued a final protective order prohibiting the husband from threatening or abusing his wife or her family members contacting her absent special authorization by the family division, coming within a certain distance of her, going to her home or workplace, or taking, converting or damaging her property.

The family division also ordered the husband to "relinquish all deadly weapons as defined in N.H. R.S.A. 625:11, V which may have been used, or could be used incident to the abuse," "all concealed weapons permits and hunting licenses," and prohibited the husband from "purchasingÖany firearms or ammunition during the pendency of this order." The family court finally awarded custody of the children to the wife.

The husband appealed claiming that the trial court lacked subject matter jurisdiction and personal jurisdiction over him to issue these orders. The Court first reviewed the plain language of N.H. R.S.A. 173-B:2, IV and N.H. R.S.A. 490-D:2, VI which grants subject matter jurisdiction to the family division to hear domestic violence cases. With regard to personal jurisdiction, the Court found that the trial court did not have personal jurisdiction over the husband as his contacts with the state were not enough for the Court to exert jurisdiction over him. However, this did not end the Courtís inquiry. The Court further found that an order "that prohibits abuse but does not Ďimpose and personal obligations on a defendantí is valid even without personal jurisdiction over the defendant."

Nixon, Raiche, Vogelman, Barry & Slawski, P.A. of Manchester (Kirk C. Simoneau and David L. Nixon on the brief, and Mr. Simoneau orally), and Wendy Guthro, of Burlington, Massachusetts, on the brief, for the plaintiff.

Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally) for the defendant.

In the matter of Dawn M OíNeil and Eugene E. OíNeil, Jr.
January 28, 2010

  • Whether the family division lacked jurisdiction to issue the restraining orders, to appoint a commissioner, and to approve the sale of DTI;
  • Whether the wage assignment order and the order appointing a commissioner violated federal and state limitations on wage assignment;
  • Whether the evidence failed to support the family divisionís findings of fault under N.H. R.S.A. 458:7 or awards of temporary and permanent alimony; and 4) whether the family division erred in denying the respondentís disqualification motion.
The petitioner (wife) commenced a divorce action in the Merrimack Superior Court in March 2007. In May, the trial court issued a final domestic protective order against the respondent (husband). While the divorce action was pending in the superior court, the husband would make daily visits to the courthouse, demand to know clerks names and informed the staff of the court of the intimate details of the lives of the clerks including how one employee drank two cups of coffee a day.

The superior court transferred the case to the family division. In December 2007 the husband was involuntarily committed for telling an insurance agent that he was going to kill himself as well as others around him. Based on these incidents, the court ordered the defendant to give all pleadings to court security and that he was no longer allowed to stay around the court house. He was to arrive no earlier than fifteen minutes prior to a scheduled hearing and leave within fifteen minutes at the conclusion of the hearing. The husband than moved to disqualify the judge that issued the restraining order against him. The husband claimed that there was no statutory basis for the orders issued. The trial court denied his motion.

Further issues arose with the defendant involving two of the marital assets. The husband owned Deployment Technologies, Inc (DTI). After the divorce was transferred to the family division, the receiver recommended that DTI be sold and operated by the receiver until it was sold. Prior to the sale, the receiver moved for a restraining order, asserting that, after filing bankruptcy, the respondent had entered DTIís premises telling its employers that the receiver was no longer in control and harassed its employees.

He also ordered that payroll not pay employees and then illegally withdrew money from the bank accounts of DTI. After a hearing, the family division entered an order prohibiting the husband from entering the company. Finally after a final hearing, consisting of five days of testimony, the Family Division adopted the recommendations of the Marital Master to grant a divorce on the fault grounds of extreme cruelty and treatment as seriously to injure health or endanger reason.

The Court first found that the family division has the inherent power, to issue restraining orders to safeguard the security of its judicial and administrative staff, and of members of the public who use its facilities. With regard to the second issue, the Court found that pursuant to the equity powers under N.H. R.S.A. 490-D:3, "the family divisionís jurisdiction over the divorce necessarily included the ancillary order of receivership issued by the superior court, even without a specific grant of jurisdiction over receiverships under N.H. R.S.A. 490-D:2.

With regard to the third issue, the Court found that the trial court had already modified the wage assignment to conform to N.H. R.S.A. 458-B:4 and 15 U.S.C. 1673 and therefore the husbandís argument was moot. Finally, the Court ruled that it could not conclude that a reasonable person would have questioned the impartiality of the trial court and therefore the judge was not required to be disqualified.

Wiggin & Nourie, P.A., of Manchester (Gail E. Bakis on the brief, for the petitioner.

Charles A. Russell, of Concord, by brief, for the respondent.

Land America Commonwealth Title Insurance Company v. Dorothy Kolozetski
No. 2008-858
January 29, 2010

  • Whether the trial court erred in applying N.H. R.S.A. 477:22 to award a title company one-half of the net proceeds from a sale of property where the Defendantís husband forged her name to a power of attorney to acquire a mortgage.
  • Whether a forged mortgage and forged power of attorney cannot validly convey title and divest the Defendant of her rights to a property, in particular her homestead.
  • Whether public policy dictates that a bank should not be rewarded for its failure to exercise due diligence when refinancing that marital home at the expense of the innocent spouse.
Dorothy and John Kolozetski owned real property in Newport as joint tenants with rights of survivorship. They mortgaged their homestead to Sugar River Bank (Sugar River). In 2005, Dorothy Kolozetski filed for divorce whereupon the Newport Family Division issued a non-hypothecation order. John Kolozetski forged a power of attorney and forged a mortgage document obtaining a loan of $150,000.00 from Lake Sunapee Bank. Lake Sunapee paid Sugar River $50,554.25 to satisfy the first mortgage on the property and advanced the remaining to John Kolozetski. With these funds, John purchased a hot tub and two luxury vehicles among other things.

Subsequently, Lake Sunapee filed a suit in Superior Court to recover the money loaned. As part of the action, Lake Sunapee filed a motion to liquidate the real estate. Dorothy and Lake Sunapee agreed to release her homestead rights and convey the real property to a third person. The real property sold for $225,000.00. The Superior Court ordered that after taxes, fees, and others liens $50,554.26 be distributed to Lake Sunapee to offset its satisfaction of the Sugar River loan and that the $74,865.81 be given to Dorothy. The remaining $74,865.80 was placed in escrow account pending the outcome of the litigation. Landmark substituted itself for Lake Sunapee as it was the title insurance company that provided coverage to Lake Sunapee. The trial court awarded the escrowed funds to Landmark. This appeal followed.

The Court ruled that "pursuant to N.H. R.S.A. 477:22, the grantee receives all of the estate that the grantor could lawfully convey. Here, John Kolozetski could lawfully convey only his undivided one-half interest in the property. This one-half interest equals one-half of the proceeds from the sale of the house after satisfaction of the underlying loan Ė the contested $74,865.80 held in escrow that the Superior Court awarded to Land America. With regard to the second issue, the Court held that Dorothy was never divested of her one-half interest in the property as John could never transfer her one-half interest. Finally, the Court, with regard to the third issue, could not decide the matter as Dorothy failed to raise the issue at the trial court.

McSwiney, Semple, Hankin-Birke & Wood, P.A. of New London (Susan Hankin-Birke on the brief and orally), for the plaintiff.

Melanie Bell, of Newbury, on the brief and orally, for the defendant.

Government Law

Professional Firefighters of New Hampshire v. Local Government Center, Inc. et al.
No. 2009-215
January 29, 2010
Affirmed in part, vacated in part and remanded

  • Whether two of the Local Government Centerís subsidiaries are subject to the Right-to-Know Law, N.H. R.S.A. 91-a.
  • Whether certain salary information for Local Government Center employees is subject to disclosure.
  • Whether Professional Firefighters of New Hampshire is entitled to attorneyís fees incurred in securing the requested salary information through litigation.
In 1941, the New Hampshire Municipal Association was formed to provide legal, legislative advocacy and other services to its members, which are comprised of various political subdivisions. This association was later renamed to the Local Government Center is a single organization that owns and manages the following subsidiaries: New Hampshire Municipal Association, LLC, Local Government Center Real Estate, Inc., Local Government Center HealthTrust, LLC, Local Government Center Liability Trusts, LLC, and Local Government Center Workers Compensation Trust, LLC.

In 2003, the Professional Firefighters of New Hampshire filed a Right-to-Know petition against LGC HealthTrust seeking meeting minutes of its board of trustees and subcommittees, as well as a contract between it and Anthem Blue Cross & Blue Shield. The trial court granted the request and the New Hampshire Supreme Court held that LGC HealthTrust was a quasi public entity subject to the Right-to-Know law. The present dispute was over the refusal of the Local Government Center to turn over the salaries and benefit information of the employees of the Local Government Center. The Local Government Center presently employs 112 full time employees with salary payments totaling over six million dollars.

The Court first found that the Local Government Center and its subsidiaries are governmental entities requiring the organization to comply with the Right-to-Know law. Next the Court had to determine whether the specific names and salaries of employees of the Local Government Center exempt from the requirements of N.H. R.S.A. 91-A:5, IV. In making this determination the Court engaged in a three step analysis. First, the Court evaluated whether there was a privacy interest at stake that would be invaded by the disclosure. Second, the Court assessed the publicís interest in the disclosure. Third, the Court had to balance whether the public interest in disclosure against the governmentís interest in nondisclosure and the individualís privacy interest in the nondisclosure.

Here the Court ruled in favor of the Professional Firefighters of New Hampshire citing that public "access to specific salary information gives direct insight into the operations of the public body by enabling scrutiny of the wages paid for particular job titles. Public scrutiny can expose corruption, incompetence, inefficiency, prejudice, and favoritism."

Finally, the Court vacated the award of attorneyís fees and remanded the case to the trial court.

Molan, Milner, & Krupski, PLLC of Concord (Glenn R. Milner on the memorandum of law and orally), for the petitioner.

Hinckley, Allen & Snyder, LLP of Concord (Christopher H.M. Carter and Kevin E. Verge on the brief, and Mr. Carter orally), for the respondents.

Georgia Tuttle, M.D. & a. v. New Hampshire Medical Malpractice Underwriting Association & a.
No. 2009-555
January 28, 2010

  • Whether the trial court erred in determining that Laws 2009, 144:1 (the Act) was unconstitutional.
The State of New Hampshire, the Commissioner of Insurance, and the State Treasurer appealed an order of the Superior Court declaring Laws 2009, 144:1 (the Act) unconstitutional. The Act required the New Hampshire Medical Malpractice Joint Underwriting Association (JUA) to transfer a total of $110 million to the Stateís general fund during fiscal years 2009, 2010, and 2011. The trial court ruled that the Act constituted a taking without just compensation in violation of Part I, Article 12 of the State Constitution and the Fifth and Fourteenth Amendments to the Federal Constitution, and that it impaired the petitionersí contract rights in violation of Part 1, Article 23 of the State Constitution and Article 1, Section 10 of the Federal Constitution.

The trial court also decided that the State had no right to any "excess surplus" funds held by the JUA because the JUA is not a state agency. The New Hampshire Supreme Court found that the Act constituted a retrospective law that results in impairment of contract rights in violation of the New Hampshire Constitution and affirmed the Trial Courtís Order.

Nixon Peabody, LLP of Manchester (Kevin M. Fitzgerald & a. on the brief and Mr. Fitzgerald orally), for the petitioners.

Michael A. Delaney, attorney general (Anne M. Edwards, associate attorney general, and Glenn A. Perlow, assistant attorney general, on the brief), and Rackemann, Sawyer & Brewster, P.C., of Boston, Massachusetts (Eric A. Smith and J. David Leslie on the brief, and Mr. Leslie orally) for the State and defendants.

William L. OíBrien, of Concord, & a. for the New England Legal Foundation and National Association of Mutual Insurance Companies, as amici curiae, joined by forty-nine members of the New Hampshire House of Representatives.

David I. Frydman, House Legal Counsel, for Terie Norelli, Speaker of the House, and Sylvia Larsen, Senate President, as amici curiae. Sulloway & Hollis, P.L.L.C., of Concord (Martin P. Honigberg and Amy Manzelli on the brief), for the New Hampshire Medical Society and the American Medical Association, as amici curiae.

Public Assistance

Megan Smith v. City of Franklin
January 14, 2010
Reversed and remanded

  • Whether the trial court erred when it ruled that the plaintiff could not receive local financial assistance because she receives Medicaid through the Aid to the Permanently and Totally Disabled program.
The Plaintiff is a resident of Franklin. She receives permanent social security disability benefits and receives medical assistance through the Medicaid-APTD program pursuant to N.H. R.S.A. 167:6, VII. On July 2, 2007, the Plaintiff applied to the City of Franklin for financial assistance with her electric and gas bills under the general assistance provisions of N.H. R.S.A. 165. The City of Franklin denied this request. The Plaintiff requested a fair hearing concerning the Cityís decision. The decision of the City of Franklin was upheld. Based on this decision, the Plaintiff filed a Petition in the Superior Court. The trial court adopted the city of Franklinís position that "aid to permanently and totally disabled" are precluded from local assistance under the plain language of the statute.

The Supreme Court found that the Plaintiff could apply for financial aid pursuant to N.H. R.S.A. 165:1 which provides "Whenever a person in any town is poor and unable to support himself, he shall be relieved and maintained by the overseers of public welfare of such town, whether or not he has residence there." The Court rules that "financial need and inability to support oneís self are the hold criteria for eligibility."

New Hampshire Legal Assistance, of Concord (Daniel Feltes & a. on the brief, and Mr. Feltes orally) for the plaintiff.

Wescott, Dyer, Fitzgerald & Nichols, P.A., of Laconia (Paul T. Fitzgerald on the brief and orally), for the defendant.

Christopher J. Somma

Christopher J. Somma received his Juris Doctorate degree from the Franklin Pierce Law Center. He is currently employed at Ford & Weaver, P.A. in Portsmouth, NH and concentrates his practice in creditorís rights, consumer and commercial bankruptcy, and commercial and consumer litigation.

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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