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Bar News - March 18, 2011

NH Supreme Court At-a-Glance - February 2011


Administrative Law Ė Appeal from NH Board of Accountancy

Appeal of Robert Daniel Mays, No. 2010-101
February 23, 2011
Reversed and remanded
  • Whether the NH Board of Accountancy exceeded its authority in promulgating a rule regarding the experience required to qualify for Certified Public Accountant certification
Mays applied for certification as a Public Accountant, listing his experience working for a company in Virginia. The Board of Accountancy denied his application, finding that his experience did not meet the requirements established by statute and its own administrative rules.

The Boardís decision was reviewed for abuse of discretion. The argument centered on whether the Board had exceeded its authority in promulgating a rule requiring the applicant to have experience in a licensed public accounting firm. The State argued that in promulgating this rule the Board was merely making explicit the statutory requirement in RSA 309-B:5, IX that an applicant has "public accounting experience."

The Court analyzed the rule-making power granted to the Board and the purpose of the Accountancy Act of 1999 (which included RSA chapter 309-B) and held that the Board had exceeded its authority. The Board was given the authority to adopt rules regarding the experience qualifications required for licensees. However, the Court held that the statutory provision regarding public accounting experience was explicit, and left no room for additional interpretation or requirements of the Board.

Robert Mays, pro se. Michael Delaney, attorney general and Elyse Alkalay, assistant attorney general, for the State.

Criminal Law
State v. Farrington, No. 2009-617
February 23, 2011
  • Whether the trial court erred in denying the defendantís motion to dismiss based on sufficiency of the evidence
The defendant was convicted of Certain Uses of Computer Services Prohibited based on online communications with a thirteen-year-old. He argued that the evidence was insufficient as a matter of law to establish that he used the computer to seduce, solicit, lure, or entice a minor into sexual activity. He argued that although he engaged in on-line conversation of a sexual nature with the minor and her friend, who posed alternately as both the minor and her brother, he did not ask to engage in sexual relations with her.

The Court relied on precedent holding that the statute should be construed broadly to effectuate its purpose of protecting against child exploitation and determined that the defendantís conduct was sufficient to support a conviction. The Court also engaged in a plain meaning analysis of the terms "seduce, solicit, lure or entice" and held that all shared the common theme of tempting, attracting or leading astray, and that therefore an explicit or affirmative request for sexual activity was not required under the statute. The defendantís use of sexual innuendo, his expression of desire to meet the minor, and his statements that he found her attractive constituted a use of the internet to attempt to lure her into sexual activities.

Meredith Lugo, public defender, Keene, for the defendant. Michael Delaney, attorney genera, and Lucy Carillo, assistant attorney general, for the State.

State v. Seymour, No. 2009-678
February 23, 2011
  • Whether the trial court erred in denying the defendantís motion to suppress his financial records and his motion to dismiss on the grounds that the evidence was insufficient to establish that he took the property of another "person"
Seymour was the treasurer and chair of the recreation commission of the Town of Litchfield from 2005 through 2008. He was responsible for receiving cash and checks and depositing them in the townís bank accounts. Seymour went to a bank in Hudson to make several transactions. The teller processed a withdrawal from the townís bank account as requested by Seymour; however, she discovered that although the deposit slip read, "Town of Litchfield," Seymour was requesting that the withdrawn funds be deposited in his personal account. The teller reported the incident to the branch manager, who reviewed the bank accounts of the town and Seymour, discovering multiple other transactions in which funds were deposited into Seymourís personal account. The branch manager contacted the Attorney Generalís office; the chief investigator for the attorney generalís office then obtained a search warrant for the townís and defendantís bank records. Seymour was subsequently charged with theft by unauthorized taking from both the town and his former employer.

The defendant raised two arguments on appeal. First, he argued that his bank records were obtained in violation of the New Hampshire Right to Privacy Act. RSA 359-C:4, I prohibits the government from requesting or receiving, and banks from providing, customerís financial records when a criminal or civil investigation is pending except pursuant to legal request or with the customerís authorization. The Court held, however, that this prohibition did not apply in this case because there was no pending investigation when the branch manager and the investigator spoke. Instead, disclosure was permitted under RSA 359-C:5, II-a, which permits banks to disclose financial records of customers when they have "reasonable cause to believe the customer, or other person, is utilizing the services of the institution to defraud the institution or any other person." The Court also dismissed the defendantís argument that the State did not present sufficient evidence that he took the property of a "person." The Court relied on RSA 625:11, II to hold that towns and corporations constitute persons.

Andrew Winters, Cohen & Winters, Concord and Evan Nappen, EF Nappen Attorney at Law, Concord, for the defendant. Michael Delaney, attorney general and Jacqueline Rompre, assistant attorney general, for the State.

State v. Thompson, No. 2009-345
February 25, 2011
Reversed and remanded
  • Whether the trial court erred by denying the defendantís motion to dismiss and whether reversal is warranted on direct appeal due to ineffective assistance of trial counsel
The Court reversed the conviction on the grounds of ineffective assistance of counsel, holding for the first time that, under limited circumstances, an ineffective assistance of counsel claim can be considered on direct appeal.

Thompson was accused of Aggravated Felonious Sexual Assault. The alleged victim, six years old at the time, told her babysitter and mother that Thompson had touched her, and repeated these allegations at a Child Advocacy Center (CAC) interview. However, by the time of trial she had recanted her allegations, and in her trial testimony denied that Thompson had touched her. Trial counsel failed to object to the Stateís opening statement, which was primarily an appeal to the juryís emotions, and also failed to object to the testimony of the babysitter, mother, and a detective present at the CAC interview regarding the alleged victimís statements about the abuse. The jury therefore heard multiple hearsay statements without which the State could not have proven its case. However, as the trial court noted in overruling the defendantís motion to dismiss at the close of the Stateís case, these hearsay statements were admitted substantively because they were admitted without objection.

The Court emphasized that there is still a strong preference for collateral review of ineffective assistance of counsel claims. However, the Court also reviewed approaches from other jurisdictions to hold for the first time that direct review of ineffective assistance of counsel claims is permitted when all the facts necessary to adjudicate the claim are evident from the trial record. Although the Court expressed the typical rule of deference to the trial strategy of counsel, it had no trouble finding trial counselís performance in this case constitutionally deficient and prejudicial to the outcome of the case, as trial counselís repeated failure to object to the only substantive evidence of his clientís guilt allowed a legally insufficient case to go to the jury.

Christopher Johnson, chief appellate defender, Concord, for the defendant. Michael Delaney, attorney general and Susan McGinnis, assistant attorney general, for the State.

State v. Winward, No. 2009-882
February 25, 2011
  • Whether the trial court erred by constructively amending the indictment; in refusing to give the defendantís requested jury instruction, and in refusing to answer a question submitted by the jury.
  • Whether the evidence presented was sufficient to support a conviction.
The alleged victim homeowner heard a noise outside his house at 1:30 a.m. He looked out the window and saw a man looking in his window and two other men, one of whom was subsequently identified as the defendant, run out from between a bush and a railing near his window. When police arrived they observed a bent window screen. When the defendant was apprehended he was uncooperative with the police.

The defendant was charged with attempted burglary. The indictment alleged that he acted in concert with two other individuals, and included as an element, removal of the window screen. The defendant argued that the State was required to prove that he, as opposed to one of the other two men, actually removed the screen. The Court disagreed.

The Court first noted prior case law establishing that an indictment as a principal also sufficiently alleges accomplice liability. Therefore, the State could prove the defendantís guilt either by proving that he removed the window screen, or by proving that he solicited, aided, or attempted to aid another in removing the screen. The Court further held that the State was not required to allege each of the possible acts committed by the defendant as an accomplice, although in the right case double jeopardy or trial preparation concerns could impose such a requirement. The Court also held that the trial courtís failure to give the defendantís requested jury instruction was not an unsustainable exercise of discretion, because the instruction given clearly informed the jury that active participation of the defendant was required to support a conviction. Defendantís opposition to the trial courtís refusal to answer the question from the jury did not appear on the record, and this issue was therefore not preserved. Finally, the Court held that the evidence, including the defendantís conduct with the police and a conversation between the three men overheard by a neighbor, was sufficient to support a conviction.

Mark Osborne, Law Office of Shepherd & Osborne, Nashua, for the defendant. Michael Delaney, attorney general and Susan McGinnis, assistant attorney general, for the State.

Family Law

In the Matter of Theodore J. Goodlander and Elizabeth M. Tamposi, No. 2009-309
February 25, 2011
Affirmed in part, vacated in part, and remanded
  • Multiple questions raised on appeal concerning the awarding of alimony and trial courtís rulings regarding trust.
The petitioner Goodlander appealed the trial courtís divorce decree, specifically the alimony award and the courtís findings regarding a family trust to which respondent Tamposi and the partiesí children were beneficiaries.

The Court upheld the trial courtís ruling that future distributions of the trust were not a property interest subject to division because under the terms of the trust "any distribution is a mere expectancy." The Court explained that trial court determinations as to what assets constitute marital property are subject to de novo review. The Court relied on RSA 564-B:8-814(b), which states that distributions that are subject to the trusteeís discretion are mere expectancies, not property interests or enforceable rights. The Court further held that the trial courtís application of the Uniform Trust Code (UTC) language on the same subject was proper, because the UTC specifically stated that its language applied to all trusts "created before, on, or after its effective date" and because retroactive application was not prohibited because Tamposi did not have a substantive, vested right to future distributions.

The Court reversed the alimony award, holding that the trial court improperly applied the UTC and explaining that RSA 458:19 is the standard for determining alimony. The required analysis was to first determine Goodlanderís reasonable needs, and then determine Tamposiís ability to meet those needs.

Finally, the Court held that it was proper to permit the partiesí adult children to intervene, although they later withdrew, because they were acting to protect their own direct financial interests.

Charles Douglas, III, Douglas, Leonard & Garvey, Concord, for the petitioner. William Brennan and Jaye Rancourt, Brennan, Caron, Lenehan & Iacopino, Manchester, for the respondent.

Leone v. Leone, No. 2010-224
February 25, 2011
Reversed and remanded
  • Whether the trial court properly refused to permit the respondent to testify telephonically in defense of a domestic violence petition brought by his wife.
The petitioner and respondent married and had two children while residing in Mississippi. After approximately four years in Mississippi, the petitioner left with her children, alleging that she feared for the safety of herself and her children. The respondent subsequently filed a complaint for divorce in Mississippi, alleging cruelty and seeking custody of their minor children. The petitioner then filed a domestic violence petition in New Hampshire alleging years of abuse. A hearing was held during which the respondent participated telephonically and through a New Hampshire attorney. However, the trial court refused to allow the respondent to testify telephonically.

The Court reversed the trial courtís refusal, holding that it was an unsustainable abuse of discretion because neither party contested the admissibility of telephonic testimony and the trial court gave no consideration to other factors relevant to the case. The Court laid out several factors that the trial court should have considered, such as: the respondentís ability to travel to New Hampshire; the nature of the proceedings; the consequences facing the respondent; whether the court had the technological capability to grant such a request; whether the petitioner objected to the testimony; and whether there were other methods by which the respondentís testimony could have been provided, such as by offer of proof from his attorney.

Ruth Heintz, New Hampshire Legal Assistance, Littleton, for the petitioner. Jason Crance, Hanover, for the respondent.

In the Matter of Cynthia Rix and Rajesh Jathar, No. 2010-074
February 25, 2011
  • Whether the trial court unsustainably exercised its discretion by permitting respondent to take the partiesí child to India for a vacation.
Petitioner and respondent are parents of a seven-year-old. Petitioner is a U.S. citizen. Respondent is a citizen of India who has resided in the US since 1990 and has a green card. There were no prior court orders regarding parenting until petitioner filed a motion to prevent respondent from taking their son to India for vacation. Petitionerís argument that such a trip would not be in the sonís best interests was based partly on the fact that India is not a signatory to the Hague Convention, and therefore it might prove impossible for petitioner to secure the return of her son were respondent to refuse to return.

The Court held that Indiaís status regarding the Hague Convention was only one of many factors to be considered by the trial court. In this case, the Court held that the trial court had not unsustainably exercised its discretion because the respondent had strong ties to the US (including his length of residence, his ownership of multiple businesses, and his comfortable salary) and noted that there was no evidence that he would not return. The Court also noted three prior trips had been made by the parties to India, and that respondent had agreed that petitioner could accompany him and their son on the trip. Finally, the Court did not rule on the appropriateness of requiring respondent to post a bond or other security, as petitioner did not request such relief.

Justin Nadeau, Law Offices of Justin P. Nadeau, Portsmouth, for the petitioner. Jocelyn Stachowske, Shaheen & Gordon, Dover, for the respondent.

Labor and Employment Law

Appeal of Roy W. Brooks, No. 2009-705
February 23, 2011
  • Whether the NH Department of Employment Security erred in finding petitioner ineligible for unemployment benefits because he had been discharged for misconduct connected with his work.
Brooks worked as a plumber. On a Friday afternoon he was asked to be "on-call" for the weekend by his employer. He received a call early Friday evening to return to a job site. A maintenance worker at the job site reported smelling alcohol on Brooksí breath, and his employer was called and informed that Brooks was under the influence of alcohol. Brooks was then fired. His employer did not have a written policy regarding "on-call" status or reporting to work under the influence. He testified at the hearing that he expected employees to use common sense.

The Court noted that it has adopted a two-pronged definition of employee misconduct. Under the first prong isolated minor acts are not sufficient for a finding of misconduct, but recurrent negligent acts are. Under the second prong, a single act may be sufficient to constitute misconduct if it is a deliberate violation of an employer rule that is designed to protect the employerís business interests. The Court held that the employer rules referenced in the second prong are not limited to specifically disclosed rules and policies, and agreed with the Departmentís determination that Brooks should have known he was required to report ready to work. The Court further held that it was permissible for the Department to admit hearsay because the rules of evidence do not apply to adjudicative proceedings.

Doreen Connor, Wiggin & Nourie, Manchester, for the petitioner. Michael Delaney, attorney general and Anthony Blenkinsop, senior assistant attorney general, for the respondent.

Petition of State Employeesí Association of New Hampshire (New Hampshire Retirement System), No. 2010-162
February 23, 2011

The New Hampshire Retirement System (NHRS) is a governmental retirement plan. Participation in the plan is limited by statute to state employees, teachers and permanent policemen and firemen. State employees and teachers are classified as Group I members; permanent firemen and policemen are classified as Group II employees. Group II employees are entitled to apply for retirement earlier than Group I employees, and receive other more favorable retirement benefits.

The State Employeesí Association requested that the New Hampshire Personnel Director certify that 62 positions classified as Group I met the requirements of permanent policemen, and therefore should be classified as Group II. The NHRS refused on jurisdictional grounds, stating that the reclassification could be accomplished only through the legislature.

The Court conducted a de novo review to determine whether the NHRS had acted illegally, arrived at an illegal or unreasonable conclusion, or abused its discretion. The statutory scheme authorized the NHRS to determine proper job classification but required legislative action for reclassification of jobs to Group II. The Court reconciled this seeming conflict by reviewing the legislative history, which it found was focused on closing a "loophole" which permitted the commissioner of the Department of Corrections to certify additional positions as permanent policemen, thus expanding Group II beyond the legislatureís original intent. The Court found that NHRSí authority was limited to determining the classification of a newly created position held by one person. Any classification as Group II of jobs held by more than one person or reclassification of jobs from Group I to Group II required legislative action. Therefore, the NHRS decision was upheld.

State Employeesí Association of New Hampshire, Inc., SEIU Local 1984 v. State of New Hampshire, No. 2010-205
February 25, 2011
  • Whether the Community College System of New Hampshire constitutes a state department or establishment and is therefore required to give priority to laid-off employees in filling vacant positions.
Prior to 2007, the Community College System of New Hampshire (CCSNH) was expressly designated a state agency by statute. In 2007, the legislature enacted several changes, including delegating authority over the system to a board of trustees. In 2009, legislation was passed requiring all state departments or establishments to fill vacant positions by first offering them to laid-off state employees who meet the minimum qualifications for the position. The petitioners were three laid-off employees who applied for positions within CCSNH but did not receive preferential hiring. The trial court found that CCSNH met the definition of a state department or establishment; the Court reversed.

The Courtís review was de novo. The Court held that RSA 9:1, defining departments and establishments, was ambiguous and therefore relied on legislative history to interpret it. The Court found that the legislature did not intend CCSNH to be part of the executive branch, contrasting it with the police standards and training council, which is by statute established as an executive branch council. The Court also relied on numerous statements from legislators regarding their understanding that CCSNH would participate in its own budgetary process. Receipt of state funds was not determinative, nor was the granting of benefits to CCSNH employees. The Court noted that the concern of legislators was that employees not lose benefits and seniority as a result of the 2007 amendments, and also observed that other non-state employees also receive state employee benefits. Finally, the Court found that a mandatory hiring preference would infringe upon CCSNHís academic freedom as granted by the legislature.

Glenn Milner, Molan, Milner & Krupski, Concord, for the petitioner. Michael Delaney, attorney general and Anne Edwards, associate attorney general, for the State.

Tax Law

Appeal of City of Lebanon, No. 2010-094
February 23, 2011
  • Whether the NH Board of Land and Tax Appeals erred in granting a tax abatement to respondent, by refusing to consider the valuation of a separate lot owned by respondent but on which respondent did not pay taxes.
The respondent trust owned two lots, Lot 6 and Lot 8. However, it paid taxes on only Lot 8; another entity paid the taxes on Lot 6. The City argued that the assessments of both lots had to be considered in determining whether the assessment of Lot 8 was disproportionate or illegal. The trust argued that the lots had to be treated separately for purposes of this determination. The Board agreed with the trust, and as a result ordered an abatement of the assessments on Lot 8.

On appeal the City of Lebanon had the burden to show that the Boardís decision was unreasonable or unlawful. The Court affirmed the Boardís decision, holding that when a taxpayer owns more than one lot and pays taxes on both, then a request for abatement on one will always require consideration of the assessments on both. However, in this case, where the trust was not the taxpayer on both lots, it could not be required to present evidence of the assessment of Lot 6, as such a requirement "would be contrary to the constitutional requirement of proportional and reasonable taxation."

Shawn Tanguay, Gardner Fulton & Waugh, Lebanon, for the petitioner. Margaret Nelson, Sulloway & Hollis, Concord, for the respondent.

Tort Law

Lovejoy v. Linehan, No. 2010-343
February 23, 2011
  • Whether the trial court erred in dismissing the plaintiffís claim for invasion of privacy by public disclosure of private facts.
This case arises out of Lovejoyís campaign for Rockingham County Sheriff against the incumbent Linehan. Mark Pierce was a deputy sheriff under Linehan. During the campaign, a newspaper article was published referencing a simple assault conviction against Lovejoy which had been annulled. Lovejoyís complaint alleged that Linehan, Pierce, and other county employees prepared documents containing information regarding this annulled conviction and provided evidence of the annulled record to the newspaper.

The Court noted that the "public disclosure" form of the tort of invasion of privacy is based on the public disclosure of matter which either would be highly offensive to a reasonable person or is not of legitimate concern to the public. The trial court ruled as a matter of law that the disclosure of the annulled record "addressed a matter of legitimate public concern."

Lovejoyís argument focused on RSA 651:5, which provides for annulment of criminal records. However, the Court noted that the statute does not provide a civil remedy to the person whose record is disclosed, and "does not enshroud the record itself with a cloak of secrecy." The Court agreed with Linehanís argument that Lovejoy made the annulled conviction a matter of public concern by running for sheriff. The Court found support for its conclusion in RSA 651:5ís recognition of the right of law enforcement to disclose annulled records to the police standards and training council for the sole purpose of determining the fitness of a person to serve as a law enforcement officer.

Charles Douglas and Jason Major, Douglas, Leonard & Garvey, Concord, for the plaintiff. Michael Ramsdell, Orr & Reno, Concord, for defendant Linehan. R. Peter Taylor, McNeill, Taylor & Gallo, Dover, for defendant Mark Pierce. Christopher Cole and Elizabeth Bailey, Sheehan Phinney Bass & Green, Manchester, for defendant Rockingham County.

Pesaturo v. Kinne, No. 2010-127
February 25, 2011
Affirmed in part, reversed in part, and remanded
  • Whether the trial court erred in dismissing negligence and nuisance claims against her neighbor regarding trees in his yard.
The plaintiff brought negligence and nuisance claims against the defendant, alleging damages because two of the defendantís trees overhang her property Ė one limits use of her driveway and the other damages her fence.

The Court upheld the dismissal of the nuisance claim, relying on its own precedent adopting the common law rule that a landowner has no affirmative duty to remedy conditions of purely natural origin. The nuisance claim failed because it did not allege that the defendant "contributed to the existence" of the tree on his property.

In an issue of first impression, the Court relied on case law from other jurisdictions to hold that a landowner who knows or should know that his tree is decayed or defective has a duty to eliminate this condition, and if he fails to do so may be held liable for injuries proximately caused by the tree, even when the harm occurs outside his property lines. The Court upheld the dismissal of one of the plaintiffís negligence claims, but reversed the denial of a motion to amend the other negligence claim, because the amended complaint alleged sufficient facts regarding the defendantís knowledge of the hazardous condition of one of his trees.

Linda Pesaturo, pro se. Debbie Makris and Jill DeMello, Getman, Schulthess & Steere, Bedford, for the respondent.

Meredith Lugo

Meredith Lugo graduated in 2002 from the College of William and Mary School of Law and works as a staff attorney with the NH Public Defender in the Keene office. She has been a bar member since 2002.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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