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Bar News - July 16, 2010


NH Supreme Court At-a-Glance - June 2010

By:

Administrative Law – Agency Regulations

John Doe v. NH Department of Safety
No. 2009-824
June 30, 2010
Reversed
  • Whether the Department of Safety may rely on information extraneous to the statutory elements of an out-of-state sex offense, when determining the reasonable equivalency of crimes for sex offender registration purposes.
New Hampshire residents with out-of-state convictions for sex offenses must register as sex offenders here if the Department of Safety (DOS) determines that the extra-territorial conviction is "reasonably equivalent" to a New Hampshire sex offense. The duration and terms of registration are then dictated by the specific New Hampshire sex crime statute and 651-B:1.

The DOS notified Doe that, having reviewed both the elements of his Maine sex offense and the underlying facts of his crime, the Maine conviction was reasonably equivalent to a New Hampshire aggravated felonious sexual assault (AFSA). He was therefore directed to register for life. Doe sought review by the agency, which affirmed the original determination. He then sought declaratory judgment in the superior court, which reversed the DOS ruling on the basis that the agency had improperly relied on the transcript of a Maine interrogation of Doe to establish the equivalency of the Maine "sexual act" element of gross sexual assault, to the New Hampshire "penetration" element of AFSA. The DOS appealed.

The Court, in an opinion by Dalianis, J., found that Saf-C 5502.01(c), which directs the means by which equivalency is to be determined, explicitly and unequivocally limits the inquiry to "a comparison of the elements of the New Hampshire statute to the elements of the other jurisdiction’s statute." However, the regulation does not require exact equivalency; the elements of the crimes need only be "analogous." Finding that in this case they were (by looking at not only the elements of the Maine statute at issue, but also, critically, the comment to the statute), the Court reversed the trial court ruling.

Marcia A. B. Thunberg, of Concord, for the petitioner. Michael A. Delaney, attorney general (David M. Hilts, assistant attorney general), for the respondent.


Civil Procedure – Long-Arm Jurisdiction

Impact Food Sales v. Carl Evans D/B/A Warehouse Club Distributing Company
No. 2009-348
June 16, 2010
Reversed
  • Whether service on an out-of-state defendant under RSA 510:4 is sufficient, where plaintiff has not first effected service on the secretary of state.
Impact Food alleged that Evans, a resident of Illinois, accepted money for the goods that it failed to deliver. Impact sent a letter to the Merrimack County Sheriff enclosing a copy of a writ of summons, along with copies for service on the NH Secretary of State. The same day, the company sent a copy of the same letter by certified mail to Evans. After sending the letter again by certified mail and then by first-class mail, Impact filed a motion for entry of default, which the trial court granted. Evans, alleging improper service, filed a motion to vacate and dismiss, which the trial court denied.

The Court, in a four-to-one opinion by Broderick, C.J., found that Impact failed to comply literally with the dictates of RSA 510:4, New Hampshire’s long-arm statute. The statute requires that the certified mailing to the defendant include notice of the effected service on the secretary of state, which could not have happened here, where the mailing to the defendant was accomplished simultaneously with that to the sheriff’s office. In order to comply with the statute, Impact Food should have waited to give notice to Evans until after it had effected service on the secretary of state. Failing that, no personal jurisdiction over Evans existed. The Court found it insignificant, given the clear language of the statute, that the certified mail went unclaimed by Evans. Further, because RSA 510:4 requires that notice of service be immediate, Impact’s later mailings were of no account.

Hicks, J. dissented, finding that the statute did not require waiting for the return of service upon the secretary of state. Concluding that the statutory goal of affording the defendant notice and an opportunity to present his objections had here been met, the dissent likewise found that personal jurisdiction over Evans had been established.

Law Offices of Thomas Morgan of Salem (Thomas Morgan on the brief and orally), for the plaintiff. Ford & Weaver of Portsmouth (Christopher J. Somma on the brief and orally), for the defendant.


Constitutional Tort – Equal Protection

Amer Khater & a. v. Sean Sullivan & a.
No. 2009-599
June 3, 2010
Affirmed
  • Whether a violation of state constitutional guarantees of equal protection can serve as the basis for a direct action for money damages.
Khater applied for permits to sell vehicles at two locations in Hudson. The town denied the permits, citing Khater’s failure to obtain site plan approval. Alleging that the true reason for the denial was unlawful race discrimination in violation of the Equal Protection Clause of the NH Constitution, Khater filed suit against the town and two of its officials. The trial court dismissed the action, ruling that courts disfavor the creation of a common law tort remedy for a constitutional violation, particularly where a statutory remedy exists.

Finding that statutory law provided Khater with adequate relief – he could have challenged the permit denial by appealing to the zoning board of adjustment, then, if denied there, appealing to the superior court – the Court, in an opinion by Hicks, J., affirmed. On this basis, and on grounds that a contrary holding would likely result in a "multiplication of litigation resulting from local squabble," the Court declined to recognize a new constitutional tort.

Amer Khater and Habiba Mhaidar, by brief, pro se. Ransmeier & Spellman of Concord (Daniel Mullen, on the memorandum of law), for the defendants.


Criminal Law – Admissibility of Evidence

State v. Wayne Villeneuve
No. 2009-011
June 3, 2010
Affirmed
  • Whether New Hampshire’s modified Intoxilyzer 5000EN complies with statutory and regulatory prerequisites to the admission of its breath test results.
     
  • Whether the state violates its duty to disclose exculpatory material, where the state requested from the manufacturer, but was not provided with, Intoxilyzer records not in its possession.
Villeneuve was arrested for DWI. A breath test showed a blood alcohol level of .15. At trial, Villeneuve sought to preclude the breath test results by challenging the accuracy and reliability of the testing instrument used in New Hampshire, a modified version of the Intoxilyzer 5000EN. Villeneuve noted that the relevant statutes and regulations required, as a prerequisite to admissibility, that the testing instrument at issue be identified on the Conforming Products List by the National Highway Traffic Safety Administration, and argued that while the Intoxilyzer 5000EN was so listed, the modified version of the instrument was not. Upon conviction, Villeneuve appealed.

The Court, in an opinion by Duggan, J., first found that Villeneuve’s statement to the trial court – "I don’t have any objection to the letter" – waived his right to appeal the admission of a letter, submitted into evidence by the state, tending to support the accuracy of the Intoxilyzer instrument. Next, the Court found that the trial court’s admission of the test results was not an abuse of discretion. Moreover, because the Court found that the evidence tended to show that the modifications to the I5000EN model did not affect its accuracy, the fact that the 5000EN was listed as a conforming product was sufficient to establish the conformity of the modified instrument. Finally, the Court concluded that prosecutor had not engaged in a discovery violation for failing to provide Intoxilyzer manufacturing documentation not in the possession of the state, and which the manufacturer would not provide.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general), for the state. Law Office of Leonard D. Harden, of Lancaster, for the defendant.


Criminal Law – Malpractice

Dorothy J. Gaylor & a. v. Stephen T. Jeffco, Esq. & a.
No. 2009-549
June 3, 2010
Affirmed
  • Whether the plaintiff in a criminal malpractice action must prove, in addition to other requirements, his actual innocence.
Gaylor was convicted of over 100 counts of theft and tax evasion, and began serving his prison sentence in 2000. He thereafter retained Jeffco’s law firm to provide legal services and advice in connection with state and federal collateral proceedings challenging his convictions. In 2009, Gaylor filed a criminal legal malpractice action against Jeffco’s firm, alleging that due to untimely filing of state pleadings, it negligently forfeited Gaylor’s ability to mount his challenges in federal court.

The superior court granted Jeffco’s motion to dismiss Gaylor’s writ, finding that, in order to prevail, Gaylor had to prove his actual innocence. The Court, in a unanimous opinion by Duggan, J., affirmed. Where a client’s criminal malpractice claims are related to underlying guilt or innocence, the client must prove four elements: 1 - there must be an attorney-client relationship that triggers an attorney’s duty to exercise reasonable professional care, skill, and knowledge in providing legal services to a client; 2 - a breach of that duty must occur; 3 - a resultant harm must be legally caused by the breach; and 4 - the claimant must allege and prove, by a preponderance of the evidence, his or her actual innocence. Here, despite Gaylor’s claim that his suit challenged the negligence of post-conviction counsel, thereby avoiding the "actual innocence" prong, the Court found that Jeffco’s alleged malpractice was linked to efforts to overturn Gaylor’s convictions.

Dorothy J. Gaylor and Gregory A. Gaylor, by brief, pro se. Wadleigh, Starr & Peters, of Manchester (Jeffrey Karlin on the brief), for the defendants.


Criminal Law – Sentencing

State v. Eric Van Winkle
No. 2008-757
June 3, 2010
Reversed
  • Whether a trial court retains authority to amend a sentence, where the sentence is legal, its intent is clear, and it is not the product of typographical error.
After being found guilty of three violations of probation, Van Winkle was sentenced to two to seven years in prison, with 45 days pre-trial confinement credit. Five days later, stating that it wanted to achieve what "it was intending," the trial court sua sponte amended the sentence to 3 1/2 to 7 years in prison with 363 days pre-trial confinement credit, thereby lengthening Van Winkle’s minimum incarceration. On appeal, Van Winkle argued that the amendment violated his due process rights.

The Court, in an opinion by Broderick, C.J., agreed. The Court first noted that New Hampshire had only recognized two circumstances in which the sentencing court retains jurisdiction over a defendant’s sentence, thereby allowing for subsequent amendment: where there is clerical error, and where the initial sentence is illegal and void. Otherwise, because a sentence must be determinable at the time it is imposed, where the original sentence is clear as to the intent and is legal, the sentencing court does not have authority to later increase the sentence. Here, the Court held, the initial sentence was legal and its intent clear. Further, while the trial court may have made "a mistake in reasoning," such a mistake was not a clerical error. Thus, the court did not have the authority to amend the sentence to take into account pretrial confinement credit it had previously failed to consider, and in doing so, violated due process.

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general), for the state. Nixon, Raiche, Vogelman, Barry & Slawsky, PA, of Manchester (Kirk C. Simoneau), for the defendant.


Criminal Law – Sentencing – Guilty Pleas

Danien Brousseau v. Superintendent, Hillsborough County House of Corrections
No. 2009-801
June 16, 2010
Affirmed
  • Whether it is a violation of equal protection for a court to reject, without first considering financial means, a plea agreement on the grounds that the defendant is unable to pay the fine that is a part of the negotiated sentence.
     
  • Whether a guilty plea constitutes a waiver of the right to contest alleged constitutional violations perpetrated by the trial court prior to the plea.
Brousseau intended to resolve his criminal charges by plea pursuant to a sentencing agreement negotiated with the State. One of the terms of the sentence was a $500 fine. At the outset of the plea and sentencing hearing, Brousseau, who had been incarcerated and was represented by a public defender, asked the district court for time to pay the fine. The court provided that Brousseau could either pay the fine immediately, or forego the plea and proceed to trial. While maintaining his right to payment of the fine over time, Brousseau elected to proceed with the plea, choosing to "pay" the fine via time in jail.

Upon conviction, Brousseau petitioned the superior court for writ of habeas corpus. That court ruled that although the district court’s action had violated the petitioner’s equal protection rights, Brousseau, by entering a new plea, had waived his right to challenge the district court’s rejection of his original plea.

The Court, declining to address the constitutional issue, affirmed. Acknowledging that Brousseau did not contest the knowing, intelligent, and voluntary nature of his plea, the Court, in an opinion by Dalianis, J., held that, consistent with its general rule that a plea waives all claims relating to the deprivation of constitutional rights occurring before its entry, by entering a new plea, Brousseau waived any claim that the district court violated his constitutional rights by rejecting his original plea.

However, the Court also admonished the district courts to heed their own court rule, which allows a judge, upon a finding that a criminal defendant is indigent, to defer payment of a fine, order periodic payments, or allow the performance of community service in lieu of payment. A district court may also accept a guilty plea, but defer imposition of sentence for a brief period of time to provide the defendant a reasonable opportunity to raise funds sufficient to pay the fine.

Richard Guerriero, public defender, for the petitioner. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general), for the state.


Family Law - Child Support - Choice of Law

In Re Roberta L. (Pierce) Scott & James P. Pierce
No. 2009-520
June 3, 2010
Affirmed in part, vacated in part, remanded
  • Whether certain aspects of child support and college expenses obligations, ordered pursuant to a Massachusetts divorce decree subsequently modified in New Hampshire, were subject to Massachusetts or New Hampshire law.
Husband and wife, who lived in Massachusetts and had two children, were subject to a divorce decree in that state that governed the terms of husband’s payments of child support to wife. In 1997, the parties agreed to modify the duration of the husband’s support obligation, in short extending the termination dates to the children’s 21st birthdays, or to their 23rd birthdays should they attend college. In 2002, after husband had moved to New Hampshire and wife to California, wife registered the decree in New Hampshire, and certain changes to the husband’s obligations were ordered in 2003.

In 2008, Husband petitioned to terminate his child support obligations on the grounds that his son was older than 23, and his daughter had graduated from college. Wife cross-moved, asking the court to order husband to pay arrearages related to a travel/college escrow fund, and to college expenses. The trial court, noting that under New Hampshire law (RSA 461-A:14, IV) child support terminates when a child turns 18 or ends his high school education, whichever is later, and finding that husband continued to pay child support for the daughter while she was in college, concluded that it would be inequitable to require husband to reimburse wife for the amounts she claimed.

The Court, in an opinion by Dalianis, J., held that once the Massachusetts decree was registered in this state, it was subject to New Hampshire law, but only with regard to any provision of the support order that could have been modified under Massachusetts law. Under the Uniform Interstate Family Support Act, the duration of a child support obligation is a non-modifiable aspect of an issuing state’s original child support order; thus, Massachusetts law continued to govern the duration of husband’s child support obligation. Because under Massachusetts law a divorced parent may be required to pay child support until the child graduates from college, the trial court erred by excusing husband’s failure to comply with its earlier order regarding payment to the travel/college escrow account.

The Court found, however, that college expense obligations were modifiable under Massachusetts law, and thus that under UIFSA, the trial court properly applied New Hampshire law to the obligation to contribute to the children’s college expenses. Although the original decree made explicit that Massachusetts law governed the interpretation of the decree, the Court found that, under the approach set forth in the Restatement (Second) of Conflict of Laws, the application of Massachusetts law would violate New Hampshire public policy, as reflected in UIFSA. The Court further found, however, that the trial court has misapplied New Hampshire law by retroactively applying a February 2, 2004 amendment to RSA 458:17, XI-a, and thereby finding that the statute nullified the court’s previous college expense order. While the 2004 amendment precluded a trial court from ordering a parent to contribute to an adult child’s college expenses, the Court has "repeatedly held" that the amendment may only apply prospectively.

Wiggin & Nourie of Manchester (Andrea Q. Labonte on the brief and orally), for the petitioner. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the respondent.


Landlord - Tenant Actions

June Favazza v. David Braley & a.
No. 2009-519
June 3, 2010
Affirmed
  • Whether a party can petition for a new trial in the superior court pursuant to RSA 526:1 when the case originated in the district court.
Braley, a tenant, filed suit under RSA chapter 540-A against Favazza, his landlord, in the district court. Braley won. Rather than appealing her loss to the NH Supreme Court, Favazza, relying on RSA 526:1 ("[a] new trial may be granted in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable"), sought a new trial in the superior court. The superior court granted Braley’s motion to dismiss, and Favazza appealed.

Engaging in statutory construction analysis that included a review of legislative history, the Court, in an opinion by Duggan, J., held that the phrase "any case" in RSA 526:1 referred only to cases originating in the superior court. Moreover, the Court noted that because RSA chapter 540-A provided a specific mechanism for review – the appeal of questions of law to the Supreme Court, pursuant to RSA 540-A:4, V – to the extent that RSA chapter 526 conflicted with RSA chapter 540-A, review of an RSA 540-A case must take place pursuant to that specific statutory scheme. Finally, to find that RSA 526:1 permitted this type of appeal to the superior court "would confer upon the superior courts unprecedented review of district, probate, and family court decisions" and would result in the waste of judicial resources. To hold otherwise would be a novel departure from the current appellate practice in place in New Hampshire.

Darrin R. Brown, of Concord, for the appellant. Seufert Professional Association, of Franklin (Christopher J. Seufert on brief and orally), for the appellees.


Property Law – Impact Fees

Michael Clare, Trustee of Horizon Realty Trust v. Town of Hudson
No. 2009-158
June 16, 2010
Affirmed in part, reversed in part, remanded
  • Whether RSA 674:21 requires strict compliance to its mandate that impact fees be accounted for separately, segregated from town’s general fund.
Clare, as Trustee, was a developer of a subdivision in the Town of Hudson. The town planning board approved the subdivision but required a performance bond for sight distance improvements to an intersection. Consequently, Clare paid the town $81,705, which was used to create and fund a separate account for the improvements. Claiming that the town failed to use the bond for the requisite purpose, Clare applied to the planning board for release of his bond, and was denied. The superior court upheld the planning board decision.

On appeal, Clare argued that the town violated RSA 674:21, V(c) and (e) by expending the bond fund (a total, ultimately, of $89,153.95) for a purpose other than the capital improvements for which it was collected. The Court (Conboy, J.) found no reason to disturb the finding that the improvements undertaken and paid for by the town were indeed made for the requisite purpose related to the subdivision. The Court found, however, that because RSA 674:21, V(c) makes clear that impact fee funds and town funds are not fungible, the Town was not authorized to pay the full $89,153.95 from the account to its contractor, when only $75,437.05 was actually attributable to the work for which the impact fee was collected. That the town’s bookkeeping error was apparently a matter of form only, was inapposite. Thus, the Court affirmed the decision of the trial court upholding the planning board to the extent that Clare was not entitled to the return of $75,437.05.

David M. Groff, of Pelham, on the brief and orally, for the plaintiff. Hage Hodes of Manchester (Stephen C. Buckley on the brief and orally), for the defendant.


Property Law – Right to Jury Trial

HSBC Bank USA, National Association, Inc. v. Kevin F. Macmillan
No. 2009-600
June 3, 2010
Affirmed
  • Whether there is a right to jury trial, and therefore to appeal under RSA 547:11-d, on appeal of a decision by the probate court quieting title on property.
In its petition to quiet title, HSBC Bank, alleged that, through foreclosure, it had acquired property consisting of three merged parcels, but that its predecessors’ deed from the estate of Catherine E. Silvey erroneously described only one of the parcels. The probate court quieted title in the favor of HSBC. Silvey’s heirs appealed the probate court’s order to the superior court under RSA 547:11-d, which provides: "In cases where a right to jury trial is guaranteed by the constitution or granted by statute, a person may, at the time judgment by the probate court is declared, appeal therefrom to the superior court." HSBC moved to dismiss the appeal, arguing that because there was neither a constitutional nor a statutory right to a trial by jury in a quiet title action, the heirs could not appeal under RSA 547:11-d. The trial court granted the HSBC’s motion.

In an opinion by Dalianis, J., the Court found that right to jury trial under Part I, Article 20 did not extend to controversies concerning property that were not resolved by a jury at the time of the adoption of the constitution in 1784. Historically, title to real estate was generally adjudicated in equity, not at law. Because the respondents here sought relief that would not have been available in an action at law in 1784, the right to a jury trial and, thus, an appeal under RSA 547:11-d, was unavailable to them.

Hastings Law Office of Fryeburg, Maine (Peter J. Malia, Jr. on the brief), for the petitioner. Kevin F. MacMillan, by brief, pro se.


Lisa L. Wolford is with the Appellate Defender Program, Franklin Pierce Law Center, Concord. She has been a NH Bar Member since 2002.

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