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Bar News - September 17, 2010

NH Supreme Court At-a-Glance - July 2010


Criminal Law

State v. Charles Glenn
No. 2008-912
July 20, 2010
  • Whether the defendant’s retrial was not barred by double jeopardy;
  • Whether the Prosecutions unintentional failure to disclose potentially exculpatory information prior to trial rose to prosecutorial misconduct and warranting dismissal of indictments.
The Defendant was charged and acquitted of first degree felony-murder. The jury deadlocked on the lesser or alternative charge of second degree murder and the trial court declared a mistrial based on the deadlock. During the trial, it became evident that one of the state’s key witnesses had committed perjury, both at the trial and during the initial grand jury investigation. The State learned of the perjured grand jury testimony the day before trial and notified the Defendant. The State requested a continuance in order to obtain indictments that were not possibly obtained by perjured testimony. The trial court denied the State’s request. During the trial, the same witness lied about the date upon which he had applied for a concealed weapons permit (which was a material issue to the defense). After the acquittal and hung jury, the State re-indicted the Defendant on alternative counts of second-degree murder. Prior to the second trial (or re-trial), the Defendant moved to dismiss on multiple grounds. He argued that his re-trial was barred by double jeopardy and, alternatively, that the charges should be dismissed due to prosecutorial misconduct. The trial court denied both motions.

The Supreme Court affirmed. It held that the newer indictments were not barred because they required proof of different elements than that of the charge of which the Defendant was acquitted. The Court also found that there was no prosecutorial misconduct. It agreed with the trial court’s conclusion that the state notified the Defendant of the grand jury perjury as soon as it learned of it. With respect to the false testimony about the concealed weapon permit application, the State did not learn of its falsity until after trial. The Court concluded that the State could not have committed misconduct if it did not know of the content of the application; and when it did learn the contents, it immediately disclosed it to the defense. Absent any misconduct, the Court reasoned, the Defendant was not entitled to dismissal. The case was remanded for the re-trial.

Michael A. Delaney, attorney general (Karen E. Huntress, assistant attorney general, on the brief, and Peter Hinckley, assistant attorney general, orally), for the State.

Kenna & Sharkey, P.A., of Manchester, and Bookman & Al-Marayati of Melrose, Massachusetts (Bruce E. Kenna on the brief, and Ghazi D. Al- Marayati orally), for the defendant.

State v. Katherine Mendola
No. 2009-010
July 23, 2010
  • Whether the trial court erred when it failed to instruct the jury on entrapment, excluded evidence that defendant’s sometimes boyfriend had abused her, and admitted evidence that the defendant wanted two additional people to be killed.
The defendant was indicted for criminal solicitation to commit murder. It was alleged that she hired a "hit man" to murder the wife of her worker’s compensation attorney. The hit man was an undercover N.H. State Trooper. The defendant argued in her defense that she was set up and coerced by her ex-boyfriend. She argued that she was not predisposed to commit the offense. In the alternative, the defendant sought to argue that she was entrapped by the State.

In response to the defense, the trial court admitted evidence that the defendant admitted that she wanted to have two other people killed.

On appeal the Court held that the defendant was not entitled to a jury instruction on entrapment because there was insufficient credible evidence to support the defense. The Court specifically noted that the defendant’s "self-serving" testimony that she was entrapped was insufficient to warrant an instruction on that defense. Moreover, the Court held that by arguing that she was not predisposed to commit the crime, then evidence that she made admissions about wanting to kill others was admissible under Rule of evidence 404(b).

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

State v. Michael Addison
No. 2009-046
July 20, 2010
  • Whether the trial court erred in advising jury venire that robbery defendant had been indicted in an unrelated case for capital murder in the shooting death of a Manchester police officer. The Court reasoned that the intense media coverage of the capital case necessitated the instruction to ensure that jurors were not prejudiced by the media coverage.
  • Whether the trial court erred in allowing a co-conspirator to testify about "code words" used by the defendant and co-conspirator prior to the robbery.
This case involves a challenge to robbery and conspiracy to commit robbery convictions. However, the main issue in the case was raised by the intense media attention drawn to the Defendant because he was charged in an unrelated case with capital murder for shooting a Manchester Police Officer. Prior to his robbery trial, the trial judge informed the jury panel that the Defendant had also been charged with the shooting of a police officer. The trial court explained that it was informing the jury panel of that fact because of the media attention and to ensure that they could be fair and impartial in the robbery trial. The Defendant objected to the cautionary instruction and argued that such an instruction possibly tainted any jurors who knew nothing of the pending capital murder case.

The Supreme Court disagreed. In a previous case, State v. VandeBogart, the Court had upheld a similar cautionary instruction under similar circumstances. The Court concluded that the instruction was necessary to determine whether each juror could lay aside impressions or opinions created as a result of exposure to media coverage and render a verdict based upon the evidence presented in court.

The Defendant also objected to the introduction of certain "code" words that the Defendant used with his co-conspirators just prior to the robbery. One of the co-conspirators testified that he and the Defendant used phrases like they were "hungry" and that there "ribs were touching" as code for when they were looking for a place to rob on the morning of the robbery. The Defendant argued that such testimony suggested that he was a "seasoned robber" and that, by implication, he had committed other robberies. He argued that such evidence was precluded by NH Rule of Evidence 404(b) and 403. The Supreme Court disagreed. It held that such statements were direct evidence of the robbery that the Defendant and his co-conspirators, in fact, intended to commit that day.

Michael A. Delaney, attorney general (Jeffery A. Strelzin, senior assistant attorney general, & a. on the brief, and Mr. Strelzin orally), for the State.

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

State v. Darlene Nightingale
No. 2009 – 321
July 23, 2010
  • Whether the trial court erred in allowing the admission of evidence of other drug buy performed by the confidential informant/witness.
  • Whether the trial court erred in refusing to compel the State to grant a defense witness use immunity.
  • Whether the trial court erred in admitting statement by the defendant about her intention to sell cocaine when she was never charged with a cocaine offense.
The Defendant was charged with felony sale of controlled drug (oxycontin) within a school zone to an undercover agent. The police started to investigate the defendant for illegal drug trafficking after a confidential informant came forward with information pointing to the defendant. After a brief investigation, the confidential informant introduced the defendant to an undercover detective. The detective initially requested to purchase cocaine, but on the day of the actual sale, the defendant only could provide oxycontin. The undercover detective agreed and the exchange took place.

Prior to her trial the defendant moved to preclude evidence about the conversations about the never-completed cocaine transactions. She argued that those were "other crimes" and evidence of them was, therefore, inadmissible under NH Rule of Evidence 404(b). the Supreme Court disagreed and concluded that those conversations were, in fact, part of the planning of the crime she was charged with. In effect, they were part of the pending charge. The trial court did not err in admitting it into evidence.

The defendant also sought to introduce the testimony of a witness who was present during part of the transaction. The proffered witness would have testified that none of the "cocaine conversations" ever took place. The witness asserted his fifth amendment right and the defendant asked the trial court to dismiss the charges if the State did not provide use immunity to the witness. The trial court denied the request. On appeal, the Court re-affirmed its long-standing rule that it is only in exceptionally rare-cases that a trial court should dismiss charges when the State refuses to grant use immunity to a defense witness. The Court ruled that any such witness testimony would have to be the "sort of exculpatory evidence that would have prevented the defendant’s conviction" to warrant dismissal.

Michael A. Delaney, attorney general (Susan P. Mcginnis, senior assistant attorney general, on the brief, and orally), for the State.

Lisa Wolford, assistant appellate defender, of Concord, on the brief, and orally, for the defendant.

State v. Bruce Hall
No. 2009-425
July 23, 2010
  • Whether the defendant’s trial counsel was ineffective by failing to convince him to accept a "capped" plea bargain.
  • Whether the defendant’s trial counsel was ineffective by pursuing a review of his sentence before the Sentence Review Board.
The defendant was indicted with multiple counts of aggravated felonious sexual assault. The victim was his granddaughter. The defendant met with his counsel on numerous occasions to discuss plea bargaining strategies, as his main intent was to accept responsibility and to keep his granddaughter from having to testify. The defendant’s attorney met discussed the pros and cons of proceeding with a "capped" plea that was offered by the State. Under a capped plea, the State recommends a specific sentence – in this case a seven-year minimum prison term – and the defendant is allowed to argue for a lower sentence. However, a standard condition of all plea bargains is that the defendant (and State) waive the right to appeal the sentence imposed to the Sentence Review Board.

In this case, the defendant opted to enter a plea without a plea bargain in placed (called a "naked" plea) in order to preserve his right to seek Sentence Review. After the sentencing hearing, the trial court imposed a seven-year minimum prison term (as recommended by the State). He appealed his sentence to the Sentence Review Board, who effectively doubled the minimum term of his sentence.

In attempting to vacate his conviction, the defendant argued that his trial counsel was ineffective by failing to convince him to take the prosecutors "capped" plea bargain. He argued that any reasonable defense attorney would have known that he would have never received a lesser sentence. The Supreme Court disagreed. It held that the defendant’s trial counsel acted reasonably in convincing the prosecutor to ask for the same sentence regardless of whether it was a "capped" or "naked" plea, thereby preserving the client’s right to appeal his sentence. The defendant also argued that his trial counsel was ineffective by failing to convince him to forego appealing his sentence to the Sentence Review Board. He argued that any reasonably competent lawyer would not have recommended an appeal to the Sentence Review Board. The Supreme Court noted that the decision to appeal the sentence "turned out to be a poor choice for the defendant" but that the Court would "ignore the distorting effects of hindsight and evaluate the reasonableness of the counsel’s conduct at the time [the advice was given]." In doing so, the Court concluded that the defendant’s trial counsel adequately explained the risks associated with a sentence appeal and that it was the defendant’s decision to go forward with the appeal. Therefore, counsel did not render ineffective assistance.

Michael A. Delaney, attorney general (James C. Vara, attorney, on the brief, and orally), for the State.

Cohen & Winters, PLLC, (Andrew S. Winters, of Concord, on the brief and orally), for the defendant.

Municipality/Land Use Law

Judy Atwater & a. v. Town of Plainfield
No. 2009-199
July 20, 2010
  • Whether the trial court erred by deciding that the Petitioner did not file a timely appeal and, therefore, that the Zoning Board of Adjustment acted lawfully in denying the administrative appeal.
This case involves a failed appeal of a ZBA decision. The Plaintiff’s filed an appeal of the Town of Plainfield’s Planning Board in the Superior Court. They also filed an appeal with the Plainfield Zoning Board of Adjustment under RSA 676:5. The ZBA denied the appeal based on its determination that the appeal was untimely; that the applicable deadline to file an appeal was 15 days and the appeal was filed well after that deadline had lapsed. The plaintiffs appealed to the Superior Court. The town moved to dismiss. In response, the Plaintiff’s made several knew arguments: that the ZBA applied the wrong deadline, that the ZBA had incorrectly calculated when the deadline was tolled, and that the 15 day deadline did not apply. The trial court ruled that none of the Plaintiff’s new arguments had been presented to the ZBA and were therefore procedurally barred. It granted the Motion to Dismiss.

The Supreme Court agreed with the trial court. It ruled that, in order to be preserved for review by the Superior Court (acting as an appellate court in the land-use context); the arguments had to be raised in the first instance before the ZBA. It reasoned that the statutory land use scheme is based upon the principle that the local land use boards should have the first opportunity to pass upon any alleged errors in its decisions so that the court may have the benefit of the Board’s judgment in hearing the appeal.

Clauson Atwood & Spaneas, of Hanover (Bradford T. Atwood on the brief, and K. William Clauson orally), for the petitioners.

Schuster, Buttrey & Wing, P.A., of Lebanon (Barry C. Schuster on the brief and orally), for the respondent, Town of Plainfield.

Thomas R. Hanna, of Keene, by brief and orally, for the intervenor, Townline Equipment Sales, Inc.

City of Portsmouth v. James Boyle, Trustee, 150 Greenleaf Avenue Realty Trust
No. 2009-544
July 20, 2010
  • Whether it is permissible for a trial court, under Superior Court Rule 87, to assess costs against a municipality when is does not prevail in a civil zoning enforcement action.
In this case, the municipal Plaintiff sued the Defendant to prevent the clear cutting of trees and seek restoration efforts under RSA 676:15. The Defendant won the underlying suit and requested that costs be assessed against the Plaintiff under Rule 87 for deposition transcripts, expert witness fees, and other costs. The trial court granted most, but not all, of the requested costs and the Plaintiff appealed the taxation of costs assessed against it. On appeal, the Plaintiff argued that, like in the case of a cease and desist order, there should be a finding of bad faith before the trial court can assess costs. See RSA 676:17-a; that Rule 87 should not be applied when the City acts in its enforcement capacity; that the enforcement proceeding was not a "civil proceeding" for purposes of Rule 87.

The Supreme Court rejected all of the Plaintiff’s arguments. The Court noted that the legislature specifically provided for an assessment of costs in the cease and desist order cases in which the trial court found that the municipality acted in bad faith. The Court would not read in such a requirement to other statutory provisions that created enforcement actions but were silent on whether the Court could assess costs against a municipality. The Court further held that Rule 87 applied to the civil enforcement case, as it was essentially a case in equity.

Suzanne M. Woodland, assistant city attorney, of Portsmouth, by brief and orally, for the plaintiff.

Wholey & Pelech Law Office, of Portsmouth (Bernard W. Pelech on the brief and orally), for the defendant.

Saunders v. Town of Kingston
No. 2009-99
July 23, 2010
  • Whether the trial court’s dismissal of an abutter’s appeal of a ZBA decision to allow the building of a Hannaford Supermarket was affirmed.
  • Whether the trial court erred in ruling that it had subject matter jurisdiction to address the appeal under RSA 676:5.
  • Whether the trial court correctly found that the "law of the case" barred consideration the plaintiffs claim that the proposed site plan violated the Town of Kingston’s Wetland’s Conservation District zoning ordinance.
The plaintiffs appealed to the decision of the Town of Kinston ZBA, approving the site plan submitted to the Planning Board. The plaintiffs argued that the trial court lacked subject matter jurisdiction; that the proposed site plan violated various provisions of the town’s wetlands zoning ordinance, and that the trial court should apply the most restrictive land-use provisions in determining the appeal. The trial court rejects all of the plaintiff’s claims.

On appeal, the plaintiffs argued that (1) the trial court lacked subject matter jurisdiction because the planning board decision underlying the ZBA decision on appeal was not final; (2) under the Kingston Zoning Ordinance and state law, the planning board was required to apply the most restrictive zoning provision, and the trial court erred in not allowing the plaintiffs to raise this issue; and (3) the ZBA and the superior court erred in refusing to consider the plaintiffs’ argument that the proposed development violated numerous provisions of the zoning ordinance.

The Supreme Court affirmed the trial court’s ruling. It held that RSA 676:5 provided for a direct appeal to the superior court and the further action of the planning board was not necessary for an issue to become ripe for appellate review. The Court also expanded the "law of the case" doctrine to apply to substantially related proceeding and not just to direct or subsequent appeals in the same proceeding. Lastly, the Court affirmed the trial courts finding that the plaintiff’s method of simply listing alleged zoning ordinance violations, without explaining more, was not sufficient to be considered on an appeal of the ZBA findings. The Court agreed with the defendant explaining that "the plaintiffs should have provided specific grounds upon which the decision or order is claimed to be unreasonable and they should have actually shown the court why they believe the ZBA and planning board erred."

The Law Office of Scott E. Hogan, of Lee (Scott E. Hogan on the brief and orally), for the plaintiffs.

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the intervenor, Konover Development Corp.

Administrative Law –
Appeal of the New Hampshire Guardian Ad Litem Board

Appeal of Jeffrey Oligny
No. 2009-227
July 20, 2010
  • The New Hampshire Guardian Ad Litem Board’s denial of the Petitioner’s application to become a certified guardian ad litem was reasonable in light the Petitioner’s unwillingness to cooperate fully with the Board during the application process.
Mr. Oligny’s (Petitioner) applied to become certified as a Guardian Ad Litem. In Petitioner’s application to the Board, he identified that he was a party to two domestic violence related cases and a divorce case in the Rockingham County Superior Court. The Board asked the Petitioner to explain the domestic violence cases and provide it with copies of the Orders/Decrees from the divorce case. After some exchanges of written correspondence in which the Petitioner questioned the Board’s motives in making the request, the Petitioner submitted a heavily redacted copy of his divorce decree. The Board denied his application, finding that he failed to prove he was a person of "good character." He appealed the denial.

The Supreme Court upheld the Board. It found that the Board had valid reasons for requesting the additional information from the Petitioner. Upon finding that the Board acted within its discretion in requesting the information, the Court held that that the Board’s finding that the "Petitioner failed to demonstrate that he is of good character in that he failed to provide full and frank information to the Board, specifically by providing only a redacted copy of his divorce decree despite a request from the Board that he provide the entire document," was not "unjust or unreasonable." The Court likened the Board’s function to that of the Standing Committee on Character and Fitness of the Supreme Court of New Hampshire and noted that an applicant’s failure to cooperate with or to provide information to that committee or its staff is ground for denying admission to the Bar. Submitting a heavily redacted divorce decree, the Court reasoned, was tantamount to ignoring the Board’s request. The Petitioner’s appeal was denied.

Jeffrey Oligny, by brief and orally, pro se.

Michael A. Delaney, attorney general (David M. Hilts, assistant attorney general, on the brief and orally), for the State.

Administrative Law –
Appeal of the Public Employee Labor Relations Board

Appeal of New Hampshire Division of State Police
No. 2009-456
July 23, 2010
  • Whether the Public Employee Labor Relations Board (PELRB) correctly interpreted the provisions of the collective bargaining agreement between the State and the New Hampshire Trooper’s Association concerning personnel evaluations and the use of "sick time" and "call back" duty.
During 2007 and 2008, two members of the New Hampshire Troopers Association (NHTA) received comments during their annual employee evaluations that negatively referred to their use of "sick time" and response to "call back" duty, even though both troopers’ conduct was consistent with the provisions in the collective bargaining agreement (CBA) that discussed their use. As a result, the NHTA filed a complaint on the trooper’s behalf, claiming that the New Hampshire Division of State Police (the State) engaged in unfair labor practices and violated the terms of the collective bargaining agreement. It alleged that the troopers use of "sick time" and response to being called back while off duty, because they comported with the CBA, could not be used in a negative way in personnel evaluations. The Association maintained that such conduct by the State violated the CBA and that RSA 273-A:5,I(h) gave the PELRB authority to resolve the issue.

The State responded by asserting that the PELRB lacked jurisdiction because personnel evaluations are required, and governed by, RSA 21-I: 42, XII. The PELRB found that the State had in fact breached the CBA and ordered that the negative references in the trooper’s personnel evaluations be stricken.

The State appealed and the Supreme Court reversed. The Court concluded that the PELRB misinterpreted the CBA. The Court found that the "sick time" and "call back" duty provisions of the CBA are well defined, but that "[n]othing in the express terms of the collective bargaining agreement . . . precludes [the State] from commenting on these topics during troopers’ performance evaluations." It concluded that the PELRB erred and held that the personnel evaluations, permitted by the CBA, correctly included commentary about the trooper’s "attendance and dependability."

Michael A. Delaney, attorney general (Lynmarie C. Cusack, assistant attorney general, on the brief and orally), for the New Hampshire Division of State Police.

Molan, Milner & Krupski, PLLC, of Concord (Glenn R. Milner on the brief and orally), for the respondent.

Appeal of Town of Pittsfield
No. 2009-635
July 23, 2010
  • Whether the PELRB correctly determined that it has jurisdiction to hear the complaint filed by an employee.
In 2008 the Town of Pittsfield issue an employee memorandum requiring employees to use up all paid sick leave and vacation leave before utilizing leave under the Family Medical Leave Act. Two employees filed for FMLA, which was denied at different times. The Union appealed one of the grievances, alleging that the memorandum constituted an unfair labor practice.

The PELRB granted the complaint with respect to both employees. The Supreme Court reversed with respect to the second employee. The Court, interpreting RSA 273-A:5, found that the second employee’s grievance was not filed within the time requirement of the statute. Therefore, the Court concluded, the PELRB lacked jurisdiction to issue the order with respect to the second employee.

Flygare, Schwarz & Closson, PLLC, of Exeter (Daniel P. Schwarz and Thomas J. Flygare on the brief, and Mr. Schwarz orally), for the petitioner.

Krasner Law Offices, of Farmington (Emmanuel Krasner, on the brief and orally), for the respondent.

Real Estate Law

Anna H. Cardone Revocable Trust, Wesley Cardone, Trustee v. Linda K. Cardone & a.
No. 2009-316
July 20, 2010
Affirmed in part, Vacated in part, and remanded
  • The trial court did not abuse its discretion in allowing the defendant to withdraw her confession to judgment.
  • The trial court erred in strictly construing the "reverter" clause in a deed. The Court held that when interpreting a "condition subsequent" reverter clause in a deed, trial courts must construe the clause defining the reverter’s "triggering event" strictly, not the delineated consequences clause.
In 1998, the Plaintiff (the Trust) provided funds for the Defendant to purchase a condominium. The deed contained a "reverter" clause triggered by a "condition subsequent"; providing that the Defendant cannot "in any way pledge, alienate, or in any way hypothecate any interest in the within conveyed premises" or else the premise would revert to the Trust. In 2006, the Defendant granted a mortgage on the condominium to a third party and the Trust sued to quiet title. At the time the suit was filed, the defendant was hospitalized and had a guardian appointed to handle her affairs. Counsel retained by the guardian entered a confession to judgment. After the defendant recuperated and the guardianship terminated, new counsel moved to strike the defendant’s confession to judgment. The trial court granted the defendant’s request.

On the merits of the claim, the Trust claimed that the mortgage triggered the reverter clause and that it was now the rightful owner of the condominium. The trial court disagreed. It concluded the reverter clause was ambiguous because the Trust never held an interest in the property, and, thus, there was nothing to revert back to. It strictly construed the deed clause in favor of the Defendant.

On appeal, the Supreme Court reversed the trial court’s finding on this issue. The Court affirmed its longstanding rule that "conditions subsequent" are disfavored by the law and must be strictly construed to prevent under forfeiture of interests in land. However, the Court affirmed that the portion of the condition subsequent that is subject to such strict construction is the language of the triggering event, not, as the trial court found, the delineated consequence provision. In short, the Court concluded that the trial court erred when it strictly construed the reverter clause. The Court found that the clause should have been construed in favor of the Trust and remanded the case.

With respect to the withdrawal of the defendant’s confession to judgment, the Court found that the defendant’s incapacitation and the uncertainty about whether the attorney who filed the confession to judgment was representing the guardian or the defendant was sufficient to allow her to withdraw the confession and contest the suit.

The Munilaw Group, of Epsom (Tony F. Soltani on the brief and orally), for the petitioner.

NyquistWeinstein Law Firm, of Manchester (Merrick C. Weinstein on the brief and orally), for respondent Linda K. Cardone.

Professional Conduct

In the Matter of Lynn D. Morse
No LD-2009-006
decided July 20, 2010
Attorney Disbarred
  • The Court ordered Attorney Morse disbarred for lies he told to his client, the Probate Court and the Hearing Panel of the Professional Conduct Committee concerning the status of his client’s unfiled tax returns.
In 1998, Attorney Morse began representing an estate in Probate Court. Over the course of the next five years, Attorney Morse failed to file the required Probate Court Accountings in a timely manner. After a lengthy period of time, during which he failed to communicate with his client, the executrix of the estate, he was replaced by successor counsel. It was then that the client learned that she had been deceived about the status of the estate’s state and federal tax returns. The returns had never been filed, despite Attorney Morse’s repeated assertions (to the client and Probate Court) that they had been filed and that he was awaiting a substantial refund from them. Neither was true.

The PCC found Attorney Morse had violated New Hampshire Rules of Professional Conduct: 1.1 (Competence); 1.3 (Diligence); 1.16(d) (Return of the File); 3.3 (1) (Candor to the Tribunal); and 8.4(c) (Dishonesty). The PCC found that Attorney Morse’s conduct amounted to gross negligence and recommended a two year suspension. The Supreme Court disagreed. The Court found that Attorney Morse’s lies constituted an "intentional" violation of the rules. The Court’s rationale for disbarment was summed up in one sentiment: "Morse’s lies to the tribunal and to [his client] caused great harm to the Court, his client, and to the profession; as we have stated, ‘no single transgression reflects more negatively on the legal profession than a lie.’"

Landya B. McCafferty, of Concord, on the brief and orally, for the professional conduct committee.

Lynn D. Morse, pro se, filed no brief.

Contract Law –
Breach of Contract, Negligent Misrepresentation

Akwa Vista, LLC v. NRT, Inc. d/b/a Coldwell Banker
No. 2009-467
July 23, 2010
  • Whether the trial court should have granted the defendant’s motion for a JNOV.
  • Whether the trial court should have granted the defendant’s request for remittitur.
In 2002 and 2003, Akwa Vista sought to develop a 400-acre parcel on Lake Winnipesaukee. A Coldwell Banker real estate agent, approached the owner of Akwa Vista and told him that Coldwell Banker wanted the exclusive right to sell the lots of the subdivision Akwa Vista planned to create on the 400-acre parcel. He said that he "had tons of builders that he constantly did business with" and that there were four to six who would purchase twenty-six lots for a minimum of $4 million as soon as Akwa Vista’s purchase of the property closed.

The parties signed an agreement that granted the defendant the exclusive right to sell the properties. Under the terms of the agreement the defendant had promised that it would be able to provide buyers-builders for many of the lots. However, over the course of the development project, the defendant failed to produce any. Eventually, the plaintiff sued arguing that the defendant had breached the contract by failing to produce the developer-buyers as promised. The plaintiff also argued the defendant made negligent misrepresentations pertaining to the developer-buyers.

The Jury found for the plaintiff and awarded $850,000. The defendant filed motions for JNOV and remittitur. The trial court denied both motions. On appeal the Supreme Court found that there was ample evidence to support the verdicts. The Court reasoned that the testimony of the Akwa Vista’s owner was sufficient to establish the plaintiff’s causes of action. Moreover, the Court found that the damage claims were substantiated by the fact that the plaintiff had carried a larger amount of debt based on the defendant’s promises to produce buyers. The Court concluded that "had Akwa Vista received the $4 million at the closing, it would have been able to pay back a greater amount of the money it had borrowed to finance the project, thereby saving it a substantial amount in interest payments." Therefore, the plaintiff’s damage claim was substantiated.

Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the plaintiff.

Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Peter G. Callaghan on the brief and orally), for the defendants.

Attorney David W. Ruoff is with the firm of Howard & Ruoff in Manchester. He was formerly an Assistant Attorney General, Assistant Rockingham County Attorney, and staff attorney with the NH Public Defender.

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