New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Clio is the most widely-used, cloud-based practice management system in the world.

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - October 15, 2010

NH Supreme Court At-a-Glance - September 2010



State v. Jonathon A. Perfetto
No. 2009-647
September 17, 2010
  • Whether the trial courtís failure to amend the conditions of a suspended sentence infringed upon defendantís free exercise of religion under the State and Federal Constitutions; and,
  • Whether the trial court violated defendantís procedural due process rights by denying his motion to amend the conditions of his suspended sentence without a hearing.
Defendant pleaded guilty to sixty-one counts of possession of child pornography and was sentenced to a stand committed term at the state prison and four consecutive suspended sentences. One condition of the suspended sentences was that defendant have no contact with minors under the age of seventeen. Upon his release from prison, defendant moved to amend the conditions of his suspended sentences so he could attend church meetings at which children were regularly present. Without a hearing, the trial court denied defendantís motion. On appeal, defendant argued that the trial court deprived him of the religious freedom to choose the congregation of his choice by not amending the conditions of his suspended sentence to allow contact with minors. Specifically, defendant asserted that the government must apply the "least restrictive alternative test" and establish a compelling interest to warrant infringing on his fundamental rights under both the State and Federal Constitutions.

In a case of first impression involving the free exercise of religion, the Court (Conboy, J.) applied the analytical framework governing constitutional restrictions on probationers. The Court held that the conditions of a suspended sentence, even those implicating fundamental rights, must bear only a reasonable relationship to defendantís rehabilitation and protection of the public, when seen against the underlying crime. In this case, the Court found that the record amply supported the conclusion that the condition of defendantís suspended sentence furthered the goals of his rehabilitation and provided protection to the class of individuals exploited by him.

The Court also noted that the condition in this case did not directly infringe on defendantís free exercise of religion since it was facially neutral and applied to defendantís conduct regardless of whether he was in church or elsewhere. Since defendant could still practice his religion in ways that did not violate the conditions of his suspended sentence, the Court did not require a compelling government interest under traditional freedom of religion standards. The Court cited the importance in distinguishing between freedom of belief, which may not be restricted, and freedom to act, which as conduct, may be regulated.

In addition, defendant claimed that his due process rights were violated under the State Constitution when the trial court failed to hold a hearing on his motion. In New Hampshire, the sentencing judge is accorded broad discretion in imposing conditions of suspension so long as those conditions are reasonably related to the rehabilitation and supervision of a defendant. In this case, the conditions of defendantís suspended sentence were found reasonably related to his rehabilitation and supervision. Further assuming defendantís claim concerned a legally protected interest, the Court held that due process did not require a hearing in this case because defendant would not have been entitled to the requested relief regardless of additional evidence he may have presented at a hearing.

Michael Delaney, attorney general [Nicholas Cort, Assistant Attorney General, on the brief and orally], for the state. New Hampshire Civil Liberties Union Foundation, of Concord [Barbara R. Keshen on the brief and orally), for defendant.


In the Matter of Eric W. Heinrich and Mary Ellen Curotto
No. 2009-305
September 17, 2010
Affirmed in Part, Vacated in Part, and Remanded
  • Whether the trial court unsustainably exercised its discretion in its determination that an out-of-state relocation was not in the best interest of the children.
The parties married in Florida in 1996. In 2002, they moved from Florida to New Hampshire, where two of their three children were later born. In 2006, petitioner, husband, filed for divorce. At the final hearing, the parties disagreed as to whether the wife should relocate with the children to Florida, and as to which statutorily defined legal standard should govern the proposed relocation: (1) the best interests of the child standard set forth in RSA 461-A:4 and RSA 461-A:6 (collectively, "best interests standard"), as advocated by respondent, or; (2) the burden-shifting standard found in RSA 461-A:12 ("burden-shifting standard"), as advocated by petitioner. The trial court applied the burden-shifting standard and denied the request of respondent to relocate her three minor children to Florida.

Respondent first contended that the burden-shifting standard, by its terms, applies only to a post-divorce relocation request to modify an existing permanent parenting decree, and that the trial court erred in applying it since there was no permanent parenting plan in place. She argued instead that the trial court should have applied the best interests standard, which lists as one possible provision the "relocation of parents." Citing rules of statutory construction, the Court (Hicks, J) held that when two statutes conflict, the more specific one controls. Since the best interests standard did not provide the same level of detail with respect to the relocation of children, the Court found that the burden-shifting standard provided the analytical framework to determine whether the fact warranted relocation. In addition, the Court disagreed with respondentís argument that the burden-shifting standard was limited in its applicability to relocations proposed after a final decree.

According to the Court, under the burden-shifting standard, the parent seeking to relocate the children has the initial burden of demonstrating, that the relocation is for a legitimate purpose and is reasonable in light of that purpose by a preponderance of the evidence. Once the parent has met this prima facie burden, the burden then shifts to the other parent to prove, again, by a preponderance of the evidence, that relocating is not in the childís best interest.

The Court conceded that respondent had proven her prima facie case under the first prong. Thus, the dispositive issue before the Court was whether the trial court had a sufficient basis by which to properly conclude that petitioner, "an involved father," had overcome his statutory burden of proving that relocating was, nonetheless, not in the childís best interests. Over the objection of respondent, the trial court found the childrenís relocation to Florida would have a negative impact on the quantity and quality of the childrenís future contact with their father, and would not be in their best interests. The Court ruled that the trial court did not unsustainably exercise its discretion, and upheld the trial courtís decision to deny respondentís request for relocation.

Victor W. Dahar of Manchester [Eleanor Wm. Dahar on the brief and orally], for respondent. Brian G. Germaine of Derry, on the brief and orally for petitioner.

Insurance / Contract

Concord General Mutual Ins. Co. v. Green & Co. Building and Dev. Corp.
No. 2009-699
September 17, 2009
  • Whether the harm caused by leaking carbon monoxide gas constituted an "occurrence" under respondentís insurance policy.
Real Estate Developer ("Developer") sub-contracted with Chimney Builder in the construction of thirty-four homes. Throughout construction, Developer maintained liability insurance with two carriers. After all the chimneys were found to be defective based on unacceptable levels of leaking carbon monoxide gas, several homeowners filed suit. In the meantime, Developer demanded that its insurance carriers provide it with defense and indemnification. The homeowner suits were later settled or withdrawn based on Developerís preventative repair efforts. The insurance company initiated a declaratory judgment proceeding against Developer to resolve the coverage issues. In its cross-motion for summary judgment, Developer principally argued that the leaking carbon monoxide constituted property damage and was therefore an "occurrence" under its policies. The insurance companies asserted that the carbon monoxide caused no physical damage and that Developerís claim was essentially for faulty workmanship, which they contended was not covered under the insurance contracts. The trial court disagreed, and this appeal followed.

Based upon its review of relevant case law and the insurance policy language at issue, the Court (Conboy, J.) ruled that in order to constitute "an occurrence" under the insurance policies, physical damage or loss to property other than the defective work product necessarily needed to have been suffered. The Court further held that property suffers physical, tangible injury when it is altered in appearance, shape, color, or in some other material dimension. Over Developerís objection, the Court held that the entry of carbon monoxide into the homes was not itself physical injury to tangible property. Instead, the Court found the leak was attributable only to faulty workmanship. The Court also reasoned that none of the homeowners suffered bodily injury due to the gases or loss of use of any property other than to their chimneys. Thus, the loss of use of Developerís work product, standing alone, was not sufficient to constitute an occurrence under the policy.

Wiggin & Nourie of Manchester [Gordon A. Rehnborg, Jr. and Mary Ann Dempsey on the brief, and Mr. Rehnborg orally], for petitioner. Bouchard, Kleinman & Wright of Hampton [Paul B. Kleinman and Shenanne R. Tucker on the brief, and Ms. Tucker orally], for respondent Green & Company Building and Development Corporation. McDonough, OíShaugnessy, Whaland & Meaher of Manchester [Robert G. Whaland on the brief and orally], for respondent Middlesex Mutual Assurance Company.

Kierstead & another v. State Farm Fire & Casualty Co.
No. 2009-649
September 17, 2009
  • Whether an insured was statutorily and contractually time-barred from bringing a suit in equity to determine eligibility for coverage under its policy.
The insured, petitioners, suffered "complete fire damage" at their residence in November, 2007. On December 12, 2007, the insurer issued a reservation of rights letter questioning its obligations to cover the loss under the policy since the insured failed to fully cooperate with the insurerís investigation. The letter also stated that no action shall be brought unless there has been compliance with the policy provisions, and that any such action must be commenced within one year after the date of loss or damage. Also, on December 12, 2007, and again on December 20, 2007, the insurer sent demand letters explaining that the insurerís reservation of rights in this case was due to an incomplete investigation arising from the insuredís failure to cooperate. The letters stated the following: "Pursuant to New Hampshire Law, any action against the insured will be forever barred by law if [the insuredís] writ is not served on the company within 12 months of the date of this notice." In September, 2008, the insurer denied coverage for the claim because: (1) the fire was intentionally set; (2) the petitioners failed to cooperate with the investigation; and (3) the petitioners violated the fraud provisions of the insurance policy. On or about January 16, 2009, the insured filed a petition for declaratory judgment. The insurer successfully moved to dismiss the petition, claiming that the insured was time-barred from bringing suit under the policy and state statute.

On appeal, the Court (Broderick, J.), reconciled two statutes which contemplated the time at which such actions become time-barred. Under the first statute, no suit or action on the policy for the recovery of any claim shall be sustainable in any court of law or equity unless commenced within twelve months after inception of the loss. Under the second, the insured may bring an action at any time if the insurer did not give notice of the limitation period to the insured. In addition, this second statute had previously been construed to mean that the twelve-month period begins to run from the date of the notice. Thus, the Court held that even if the twelve-month period began to run from the date the notice was given, the insuredís petition would have been untimely. The Court also ruled that the relevant statute pertaining to the limitations period governs both actions at equity and law. The insuredís arguments pertaining to justiciability, equitable tolling, and estoppel were similarly unavailing.

Sheehan Phinney Bass & Green of Manchester [W. Michael Dunn and Karyl Roberts Martin on the brief, and Mr. Dunn orally], for petitioners. Bouchard, Kleinman & Wright of Hampton [Shenanne R. Tucker and Kenneth G. Bouchard on the brief, and Ms. Tucker orally], for respondent.

Landlord / Tenant

Jeanmax Darbouze v. Nancy Champney
No. 2009-780
September 17, 2010
  • Whether the use of the words "Notice to Quit" rather than "Eviction Notice" was fatally defective to a landlordís action to evict;
  • Whether landlordís failure to use the tenantís first and last name on the demand for rent and eviction notice was fatal to the landlordís action; and,
  • Whether the landlord computed the correct number of days from which the tenant was required to quit under state statute.
Tenant did not pay rent on August 1, 2009. On August 6, 2009, landlord served tenant with a "Demand for Rent" and a "Notice to Quit." The notices identified tenant by her first name alone and gave her until August 13 to vacate the premises. Tenant made no further payments. After tenant failed to vacate premises, landlord filed a landlord-tenant writ seeking her eviction. Tenant moved to dismiss the action, claiming that the notices were defective as a matter of law for three reasons: (1) that several statutes had recently been amended to replace the term "Notice To Quit" with eviction "Eviction Notice"; (2) that the notices used only her first name; and, (3) that the notices did not provide seven "clean days" for tenant to vacate. The trial court denied the motion and entered judgment in favor of landlord.

In affirming the trial court, the Court (Conboy, J.), interpreted the statute and first held that the statute at issue does not require use of the term "Eviction Notice" so long as the substance of the notice satisfies the statutorily enumerated requirements. The Court next addressed the lack of tenantís last name in each notice. The statute provides that the district court must provide standard forms for a demand for rent and eviction, and that a valid demand must include the same information that is requested on such forms. Further, a landlord is not required to use these forms. Since nothing on the forms specified that a landlord must provide the tenantís first and last name, and because there was no dispute that tenant received the notices and was aware they were directed at her, the Court did not find the lack of tenantís last name fatal. Finally, since the notices provided the statutorily-required number of days notice within which tenant was required to vacate, the Court found landlord to be in compliance with the statute.

J. Miller & Associates of Concord [Anthony Santoro on the brief], for plaintiff. Backus, Meyer & Branch of Manchester [B.J. Branch on the brief], for defendant.

Medical Malpractice

Petition of Juli George
No. 2010-024
September 17, 2010
  • Whether the medical injury screening panel statute is applicable when reviewing medical injury claims brought by non-patients.
Plaintiff was injured in an auto accident by a patient who had allegedly fallen asleep at the wheel of her car. The car accident purportedly happened after the patient had been given methadone at a medical facility. As part of her writ, plaintiff contended that the medical facility was negligent for allowing the patient to leave despite it being reasonably forseeable that the patientís driving ability was impaired. Before trial, the medical facility moved to refer plaintiffís claim against it to a statutorily-mandated screening panel for medical injury claims. The trial court later denied plaintiffís motion for leave to file an interlocutory appeal on the narrow issue of whether such panels were required in third-party actions for medical injuries against medical providers. This petition for original jurisdiction followed.

On appeal, plaintiff contended that a determination from a medical injury screening panel was not required. Specifically, plaintiff argued that her claim against the medical facility was not an "action for medical injury," as defined statute, because she was not a patient at the medical facility.

The Court (Dalianis, J.) concluded that the plain language of the pertinent statute does not require that an action for medical injury be brought by a patient or that the medical injury at issue be suffered by a patient. In so holding, the Court perceived that the purpose of the medical injury screening statute was to help identify both meritorious and non-meritorious claims without the delay and expense of a trial, and also to encourage prompt resolution of all claims. It followed, the Court held, that the subject matter of the claim, not the identity of the plaintiff, determined whether the referral to a medical injury screening panel is required. Since resolving plaintiffís claim required determining whether the medical facilityís acts or omissions toward the patient amounted to negligence, the Court ruled that plaintiff must submit to the panel before her case could proceed. The Court did not reach the issue of whether a medical care providerís negligent treatment of a patient gives rise to a duty to non-patients, either generally or in this case.

Thomas G. Van Houten, of Springvale, Maine, by brief and orally, for plaintiff. Bouchard, Kleinman & Wright of Hampton [Paul B. Kleinman and Sabin R. Maxwell on the brief, and Mr. Kleinman orally], for defendant Merrimack River Medical Services, Inc. d/b/a Community Substance Abuse Centers. Amy Steadman, pro se, filed no brief.

Sanctions / Discovery

State v. Jane Reader
No. 2009-532
September 17, 2010
  • Whether the trial court unsustainably exercised its discretion by excluding witness testimony for defendantís failure to provide the state with timely summaries of expected testimony pursuant to Superior Court Rule 98.
Defendant, Jane Reader, was charged with two counts of simple assault and one count of resisting arrest after she spat at, and kicked a police officer outside of her Derry home. Defendant denied the foregoing and claimed instead that the officer used excessive force before the arrest. There were several witnesses willing to testify at trial, many of whom were defendantís friends or neighbors. Prior to trial, and again at the close of its case, the state filed a motion in limine to exclude the testimony of these witnesses because defendant had failed to provide it with summaries of expected testimony in defiance of a court order and contrary to the requirements of Superior Court Rule 98. The trial court granted the stateís motion in limine and defendant was convicted.

The Court (Duggan, J.) held that a party may be sanctioned for failure to comply with Rule 98 at any time during a proceeding. In addition, the trial court may, after considering several factors, prohibit one party from introducing undisclosed evidence. In affirming the trial courtís decision to exclude defendantís witness testimony, the Court found the following factors dispositive: the stateís ongoing, albeit unsuccessful attempts at obtaining the summaries; the trial courtís inability to limit the scope of the testimony after the close of the stateís case; the unavailability of lesser sanctions; and, defendantís insistence upon deferring the summaries at jury selection. Consequently, the Court perceived the legislative purpose of Rule 98 to be the avoidance of trials by ambush. In light of the above, the Court held that the trial courtís decision to exclude defendantís witness testimony was not clearly unreasonable and therefore not an unsustainable use of its discretion.

Michael Delaney, attorney general [Nicholas Cort, assistant attorney general, on the brief and orally], for the state. Buchanan, Maynard & Parodi of Nashua [Steven L. Maynard on the brief and orally], for defendant.

Sanctions / Mediation

Lillie-Putz Trust, Peter E. Simmons, Trustee v. DownEast Energy Corp. & Another
No. 2009-821
September 22, 2010
  • Whether the trial court unsustainably exercised its discretion by dismissing claimantís writ with prejudice when less severe sanctions were available.
In 1999, the Trust, petitioner, acquired property subject to a long-term lease with respondent, DownEast. Shortly after the beginning of the lease, DownEast paid for the clean-up and replacement of existing gasoline tanks, which were leaking and had caused ground contamination. DownEast then brought suit for reimbursement from the then-owners. After the Trust purchased the property, it intervened to defend against the claims. In 2001, DownEast assigned its lease to co-respondent, Alliance, which continued to operate the gas station. After mediation in the original lawsuit, the Trust agreed to pay DownEast $70,000.00 as settlement, which it honored only after the trial court ordered arrest and incarceration of the trustee if the Trust did not pay.

In the present lawsuit, the Trust alleged that DownEast and/or Alliance had discharged gasoline on the property in 2001 and 2005. In or around August, 2008, the parties agreed to use a mediator, and mediation was scheduled for December 17, 2008. In October, 2008, counsel for the Trust requested an extension, indicating that it was not prepared to engage in the December mediation. The parties continued mediation until March, 2009. The mediator later asked the parties to file mediation summaries between five and seven days before the mediation. The Trust failed to file its mediation statement. Also in October, 2008, the Trust sought to evict Alliance from the property, again citing contamination as the grounds for eviction. After Alliance challenged the eviction in equity, the trial court consolidated the two cases and enjoined the Trust from attempting to evict Alliance. Approximately five days before the re-scheduled mediation date in March, 2009, the Trust notified opposing counsel that he had not yet deposed key witnesses, and that it would not attend the mediation.

Shortly thereafter, respondents all moved for sanctions, alleging that the Trust failed to attend the mediation, and requested that the trial court dismiss the Trustís consolidated writ. After finding that attorney fees would be insufficient to remedy the Trustís overall conduct the case, it granted the respondentís motion for dismissal with prejudice. In particular, the trial court found that the Trust did not attempt, despite being given several opportunities, to depose key opposing party witnesses or experts between April, 2008 and January, 2009. The trial court also concluded that the Trust had acted inappropriately with respect to the property, including the Trustís attempt to evict Alliance before the case was resolved. In support of its motion for reconsideration, the Trust submitted thirty-nine additional exhibits. The trial court denied the motion, finding that the Trust had ample opportunity to respond to the motions for sanctions, and that it was "too little, too late" for the Trust. This appeal followed.

In relevant part, Superior Court Rule 170 states that parties may select a neutral mediator who is not on the courtís list of approved neutral mediators, if they agree on the choice. The Rule also provides for sanctions if a party or a partyís counsel fails without good cause to appear at a scheduled ADR session. On appeal, the Trust argued: (1) that its attempt to reschedule the mediation session was an inadequate basis for dismissal because the court itself did not order the parties to participate in the court-sponsored ADR program; (2) that the trial court failed to consider lesser sanctions; and (3) its overall conduct did not warrant dismissal. The Court, (Duggan, J.) found that Rule 170 applied to the case notwithstanding the fact that the trial court did not itself assign the case to ADR since the parties voluntarily chose to engage in private mediation pursuant to the Rule. Further, the Trustís writ did not fall within certain categories of cases exempt from the Rule. Next, the Court found that the trial court specifically considered less severe sanctions, and that it did not unsustainably abuse its discretion when determining that the outright dismissal of the case was the most appropriate sanction based on a proper consideration of all the factors. Finally, the Court held that the trial court did not abuse its discretion with respect to the Trustís motion for reconsideration.

Charles G. Douglas, III, of Concord, and John Anthony Simmons, Sr., of Hampton, on the brief, and Mr. Douglas orally, for petitioner. Nicholas R. Aeschliman, of Portsmouth, by brief and orally, for respondent DownEast Energy Corporation. Brown, Olson & Gould of Concord [Bryan K. Gould and Philip R. Braley on the brief, and Mr. Gould orally], for respondent Alliance Energy.


State v. Daniel Fichera
No. 2009-357
September 17, 2010
  • Whether the failure to charge firearm enhancement at indictment or to instruct the jury regarding defendantís use of a firearm precluded the state from seeking an enhanced statutory sentence for a lesser included offense under the Federal Constitution.
Defendant, Daniel Fichera, shot his ex-wife in the chest with a shotgun. Defendant also used the shotgun as a club and beat her on the back of the head and shoulders. His victim later managed to escape. Defendant was subsequently indicted on charges of attempted murder that alleged he shot the victim in the chest with a shotgun, and of first degree assault, that alleged he caused bodily injury by means of a deadly weapon by striking the victim in the head with the butt end of the shotgun.

Near the end of trial, the trial court and counsel discussed lesser included offense jury instructions. Defendant argued that as to the attempted murder charge, the evidence was sufficient only to support an instruction on second degree assault. The trial court instructed the jury on second degree assault as a lesser included offense of attempted murder and defendant was convicted. The trial court ruled that the jury could only have found defendant guilty of the lesser included second-degree assault if they also found that he used a firearm, and accordingly imposed a statutorily-enhanced sentence. The enhancement statute at issue provided that if a person is convicted of a felony, an element of which is the possession, use or attempted use of a deadly weapon, and the deadly weapon is a firearm, such person may be sentenced to a maximum term of 20 yearsí imprisonment in lieu of any other sentence prescribed for the crime. On appeal, defendant contended that the trial court erred in imposing an enhanced statutory sentence under the Federal Constitution because (1) the indictment did not allege the firearm enhancement, and; (2) the jury was not instructed that it had to find that defendant used a firearm in order to convict him of second-degree assault.

In applying the harmless error review standard found in Federal Constitutional jurisprudence, the Court (Conboy, J.) held that defendant was not prejudiced, and that the above omissions were harmless beyond a reasonable doubt at indictment. In so holding, the Court reasoned that the grand jury would have found the shotgun to be a deadly weapon, and that defendant did not dispute that the victim was shot in the chest. Further, there was no evidence of any deadly weapon other than a shotgun. In addition, the Court opined that defendant was not without notice of the enhanced sentence at the time of the indictment since the enhanced sentencing issue did not arise until he requested that the court instruct the jury on reckless second degree assault as a lesser included offense of attempted murder. Finally, the Court found that the reckless second degree assault statute itself provides that if the deadly weapon is a firearm, that defendant shall be sentenced in accordance with the enhancement.

With respect to the jury instruction, the Court similarly found harmless error beyond a reasonable doubt because defendant did not dispute that the victim was shot in the chest and that the jury could only have found him guilty of the lesser-included second-degree assault charge if they also found that he used a firearm, a fact proved by uncontroverted testimony.

Since defendant did not cite a provision of the State Constitution, the Court decided the case under the Federal Constitution alone.

Michael Delaney, attorney general [Thomas E. Bocian, 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 defendant.

Standing / Administrative Law

Appeal of Thermo-Fisher Scientific
No. 2009-604
September 17, 2010
Reversed and Remanded
  • Whether a parent company that voluntarily pays the tax obligation of its wholly-owned subsidiary has standing as a "person aggrieved" under the tax abatement statute.
Liberty Lane Real Estate Holding Company, LLC ("Liberty Lane"), a wholly owned subsidiary of Thermo-Fisher Fisher, Inc. ("Thermo-Fisher") owned a certain parcel of property on which Thermo-Fisher paid the taxes for the relevant tax periods. In two of those tax years, Thermo-Fisher applied for tax abatements with the town. The town denied the abatement applications and Thermo-Fisher appealed to the Board of Tax and Land Appeals ("BTLA").

State statute provides, in relevant part, that any person aggrieved may appeal a townís decision not to abate if said party otherwise complies with the statute. The statute does not further define "person aggrieved." On administrative appeal, BTLA granted the townís motion to dismiss, finding that Liberty Lane, not Thermo-Fisher, was liable for the taxes, and that their legal relationship alone was not enough to qualify Thermo-Fisher as a person aggrieved under the statute. BTLA further denied Thermo-Fisherís request to amend its appeal to substitute the name of its subsidiary as the appealing party. After BTLA denied Thermo-Fisherís request for rehearing, this appeal ensued.

On appeal, Thermo-Fisher contended, principally, that BTLAís narrow construction of "person aggrieved" contravened the statuteís express language. The town first countered that it would be anomalous for Thermo-Fisher to be allowed to shield itself from liability from its subsidiaryís obligations under certain circumstances on the one hand, and also have standing in its own name to seek redress for an aggrievement of that subsidiary on the other. The town also argued that the adverse economic impact felt from an administrative decision of the BTLA was not enough to make an entity aggrieved.

The Court (Hicks J.) found that the statuteís purpose was not to favor either party but to promote justice. The Court further construed the plain meaning of "person aggrieved" more broadly to include anyone who has allegedly suffered from the disproportionate assessment of taxes. In addition, the Court found the townís corporate shield argument without merit since Thermo-Fisher was not shielding itself from liability in the present case, but instead voluntarily paying its subsidiaryís obligations. Accordingly, the Court reversed the BTLAís ruling and remanded the case to be decided in accordance with its opinion.

Hamblett & Kerrigan of Nashua [Andrew J. Piela on the brief and orally], for petitioner. Mark S. Gearreald, of Hampton, on the brief and orally, for respondent.

Standing / Taxpayer

James Baer & another v. New Hampshire Department of Education & Another
No. 2010-448
September 24, 2010
  • Whether taxpayer status alone is statutorily sufficient to confer standing to bring an equitable action.
A School District approved plans for the construction and renovation of its elementary schools. Since the lot sizes of two schools did not meet the stateís Administrative minimum lot size requirements, the District filed two applications for waiver of the lot size requirements with the New Hampshire Department of Education (DOE). DOE granted the Districtís waiver requests. Petitioners, taxpayers of Concord, filed a petition seeking a declaration that the waiver rules exceeded DOEís statutory rulemaking authority, and that they violated the Separation of Powers Clause of the State Constitution. The taxpayers also contended that waiving the minimum lot size violated the stateís duty to provide a constitutionally adequate education. The trial court dismissed taxpayersí suit for lack of standing.

The Court (Dalianis, J.) held that in order to maintain a declaratory judgment action, a party must show that it has suffered some impairment or prejudice to a present legal or equitable right that is personal to the party. According to the Court, taxpayer status alone, without an injury or an impairment of such rights, is not sufficient to confer standing to bring a declaratory judgment action. Since the taxpayersí only basis for standing in this case was their status as taxpayers without any allegation of impairment to their personal rights, the Court held that the trial court properly dismissed this action for lack of standing. Finally, the taxpayerís argued that the Claremont decision created an exception by which any citizen could allege violations of the constitutionally guaranteed right to an adequate education. The Court conceded no such exception.

Charles A. Russell, of Concord, by brief, for petitioners. Michael A. Delaney, Attorney General [Danielle L. Pacik, Assistant Attorney General, on the memorandum of law], for respondent New Hampshire Department of Education. Upton & Hatfield of Concord [John F. Teague and James A. OíShaughnessey on the memorandum of law], for respondent Concord School District.

Statute of Limitations / Accounting Malpractice

Alan F. Beane v. Dana S. Beane & Co., P.C. & Another
No. 2009-431
September 22, 2010
  • Whether the trial court erred when it dismissed plaintiffís lawsuit as time-barred by the statute of limitations.
Plaintiff employed the services of an accounting firm owned by his family to prepare and file his tax returns between 1985 and 2002. In 2004, the results of an examination by the Internal Revenue Service (IRS) revealed deficiencies totaling $3,080,430.00, increasing plaintiffís total tax liability for the tax years 1998 and 1999. Plaintiff did not participate in the IRS examination. After an unsuccessful administrative appeal of the IRS action, in which defendants represented plaintiff, the IRS issued a notice of the deficiency on April 5, 2005. Plaintiff then retained two law firms to challenge the deficiency finding in the United States Tax Court. At some point after October, 2006, defendants terminated their relationship with plaintiff and refused to cooperate with him or his tax counsel. During plaintiffís tax court trial on September, 2008, the IRS examiner testified as to the nature of her examination of plaintiffís 1998 and 1999 tax liability. The tax courtís decision was pending when plaintiff then filed this action, including a claim for professional malpractice, on December 22, 2008. On defendantís motion to dismiss, the trial court ruled that plaintiffís December 2008 writ was time barred because he knew or should have known of his cause of action against defendants no later than April 5, 2005, the date of the IRS notice of deficiency. This appeal followed.

With the exception of actions for slander or libel, and as otherwise provided by law, all personal actions in New Hampshire may be brought if within 3 years of the act or omission complained of. An exception arises when the injury and its causal relationship to the act or omission were not discovered, and could not reasonably have been discovered, at the time of the act or omission. In that case, a cause of action does not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both the fact of an injury and the cause thereof. Such an action must then be commenced within 3 years from the time that a plaintiff made the discovery.

Plaintiff first argued that the trial court erred by failing to conduct an evidentiary hearing. The Court (Conboy, J.) quickly dismissed this argument, noting that a trial courtís evaluation of a motion to dismiss does not necessarily require an evidentiary hearing. Because the Court found that the issues before the trial court were limited to legal analysis of the facts asserted by plaintiff, an evidentiary hearing was not required. Plaintiffís remaining arguments centered on the application of the 3 year statute of limitations and its tolling provisions. Specifically, plaintiff argued that the court erred when it: (1) failed to balance the equities as required by controlling case law; (2) concluded that the limitations period began to run no later than the date of the IRS deficiency notice; (3) refused to extend the limitations period based upon defendantsí fraudulent concealment of their breach; (4) refused to extend the limitations period based upon the fact that defendants were fiduciaries who breached their duty to disclose their errors; and, (5) refused to extend the limitations period based upon the continuing representation doctrine.

The Court held that although the discovery rule was designed to provide relief in situations where plaintiff was unaware that an injury was caused by a wrongful act or omission, it was not intended to the toll the statute of limitations until the full extent of plaintiffís injury becomes manifest. Thus, the Court disagreed with plaintiffís contention that controlling case law supported a discovery date in September, 2008, a period in which plaintiff claimed to have discovered defendantís negligence during his U.S. Tax Court case. Instead, the Court held that the trial court did not err when it found that the date of plaintiffís claim arose no later than April 5, 2005, the date of the IRS notice of deficiency. Ultimately, the Court held that plaintiff knew, or in the exercise of reasonable diligence should have discovered the causal relationship between defendantsí negligence and the harm caused him on April 5, 2005, at the latest, when he lost his administrative appeal.

The fraudulent concealment rule states that when facts essential to the cause of action are fraudulently concealed, the statute of limitations is tolled until plaintiff has discovered such facts or could have done so in the exercise of reasonable diligence. The Court held the rule inapplicable here because of its earlier finding that plaintiff discovered or should have discovered the causal relationship between defendantsí negligence and the harm caused by April 5, 2005. Finally, the Court was not persuaded by plaintiffís arguments that the statute of limitations should have been tolled under either a fiduciary theory or the doctrine of continuing representation since neither theory had yet been adopted in this State. On these facts, moreover, the Court found no occasion to adopt the continuing representation rule.

William S. Gannon of Manchester [William S. Gannon on the brief and orally], for plaintiff. Nelson, Kinder, Mosseau & Saturley of Manchester [E. Tupper Kinder & a. on the brief, and Kenneth E. Rubenstein orally], for defendants.

Matthew DesMeules

Matthew DesMeules is the managing attorney at DesMeules Law, a service-based law firm located in Andover, MA. He is a 2009 graduate of New England Law/Boston and is admitted to practice in both New Hampshire and Massachusetts.

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer