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Bar News - May 18, 2012

NH Supreme Court At-a-Glance - April 2012


Constitutional Law

Fischer v. Superintendent, Strafford County House of Corrections
No. 2010-737
April 20, 2012

Issue: Whether the Superior Courtís delegation to Strafford County Community Corrections of the ultimate authority to determine whether the petitioner is released on personal recognizance bail is an unconstitutional delegation of judicial authority.

The petitioner, David Fischer, appealed orders of the Superior Court on his motions for pretrial bail, claiming that the court delegated authority to Strafford County Community Corrections (SCCC) in violation of the separation of powers doctrine. The disputed bail order followed the petitionerís arrest on charges of second degree assault. The contested portion of the order required the petitioner to post $50,000 cash bail with conditions, "to convert to [personal recognizance] if found accep[table] by SCCC."

The petitioner argued that the order violated the separation of powers clause of the State Constitution by affording SCCC, a segment of the executive branch, the decision-making power over a bail condition, a power that belongs solely to the judicial branch.

The Court upheld the bail order, concluding that it reflected "a cooperative accommodation among the judicial and executive branches" and did not usurp an essential power of the judicial branch. The Court reasoned that whatever discretion the bail order afforded SCCC was well within its purview and invaded no province of the judiciary. SCCC could properly decide whether it had the means and ability to confidently supervise the defendant. Thus the "either or" provision of the bail order was an appropriate bail condition.

David Fischer, pro se, and Christopher Johnson, chief appellate defender, of Concord , for the petitioner.

State v. Urena Ortiz
No. 2011-446
April 10, 2012

Issue: Whether a criminal plea is made knowingly when the defendant is not informed that the plea may adversely affect his or her immigration status.

In November 2007, the defendant was charged with the class A misdemeanor of shoplifting. Soon after, she appeared in district court without counsel and signed a standard acknowledgment and waiver of rights form. Neither the form nor the plea colloquy with the court advised the defendant that her plea could adversely affect her immigration consequences.

In March 2011, the federal government, citing her conviction as a deportable offense, initiated removal proceedings against the defendant. In response, the defendant moved to withdraw her plea and vacate her conviction. The district court denied her motion. The defendant appealed the district courtís denial of her motion to withdraw her plea of nolo contendere on the grounds that the court had not advised her of its potentially adverse immigration consequences and thus the plea was not made knowingly.

On appeal, the defendant argued that her plea was not made knowingly as required by the State Constitutionís Due Process Clause because she had been ignorant of the adverse immigration consequences that her conviction could have. In support of her argument, the defendant cited Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in which the U.S. Supreme Court found that a criminal defendant had been denied his right of effective assistance of counsel where defense counsel did not advise him that a plea could result in deportation.

Distinguishing the defendantís case from that of Padilla, the Court held that the defendantís plea was made knowingly despite the fact that she was not apprised of the consequences to her immigrant status. The Court reasoned that, unlike Padilla, the defendantís case involved an accusedís right to information necessary to submitting an informed plea, not his or her right to effective counsel.

Accordingly, the Court followed the well-established rule that courts only have a duty to apprise criminal defendants of the direct consequences of their pleas--that is, the direct, definite, immediate, and largely automatic effect of the plea on the range of a defendantís punishment. In contrast, courts have no duty to apprise defendants of the collateral consequences of a plea--that is, effects that are more distant.

The Court followed precedent from the Federal Ninth Circuit and classified a pleaís impact on a defendantís immigration status is a collateral consequence. As such, a plea can be made "knowing" for Due Process purposes regardless of whether a defendant is ignorant of those consequences.

Michael A. Delany, attorney general (Nicholas Cort, assistant attorney general), for the State. Michael Sheehan, of Concord, for the defendant.

Consumer Protection

Pelkey v. Danís City Used Cars, Inc. D/B/A Danís City Auto Body
No. 2011-144
April 10, 2012
Reversed and remanded.

Issue: Whether the Federal Aviation Administration Authorization Act of 1994 preempt a claims against a tow truck company based on allegations that it acted improperly in towing, storing, and selling the plaintiffís car.

The plaintiff sued the defendant for its actions in towing his 2004 Honda Civic and trading it to a third party. The car had been towed by the defendant at the request of the plaintiffís landlord, pursuant to a parking policy requiring tenants to move their cars during snowstorms. At the time the car was towed, the plaintiff was confined to bed due to a serious medical condition and did not realize that his car had been removed. After being hospitalized, the plaintiff discovered that his car was missing, and learned that it was with the defendant and scheduled to be sold at public auction two days later. After the defendantís attorney told the defendant that his client wished to recover the car, the defendant falsely told the attorney that the car had already been sold at auction. The defendant later traded the car to a third party, but the plaintiff received no remuneration for his loss.

The plaintiff filed suit asserting three causes of action: (1) violation of the New Hampshire Consumer Protection Act, (2) violation of RSA chapter 262, a statute permitting a towing company to place a lien on a vehicle for costs associated with its towing and storage and to sell it at public auction, and (3) breach of the common law duty of a bailee to exercise reasonable care while in possession of a bailorís property. The trial court granted summary judgment, ruling that a provision of the Federal Aviation Administration Authorization Act of 1994 (FAAAA), a federal law deregulating the trucking industry, preempted the plaintiffís claims.

On appeal, the Court held that the plaintiffís claims were not preempted. The Court reasoned that, by its own language, the FAAAA only precludes state laws that seek to regulate the price, route, or service of a motor carrier with respect to the transportation of property, not all regulation of a motor carrier. When an activity, such as the storage and handling of property or collection of debts, is only incidental to the movement of property, state regulation of that activity is not preempted.

Since RSA chapter 262 governs the collection of debts, which is only ancillary to a towing companyís practice of moving property, it was not preempted by the FAAAA. The same reasoning applied to the plaintiffís consumer protection and common law claims. To the extent that plaintiff alleged that the towing company had acted improperly in disposing plaintiffís property, those claims were not preempted by federal law.

Brian Shaughnessy of Kazan, Shaughnessy, Kasten & McDonald, of Manchester for the plaintiff. Kate Strickland of Downs Rachlin Martin of Lebanon for the defendant.

Contract Law

Brown v. Concord Group Insurance Co.
No. 2011-385
January 18, 2012
Reversed and Remanded.

Issues: (1) Whether an exclusion contained in a building contractorís insurance policy applied to coverage for work performed by the contractor on a house four years after he completed it; and (2) whether there was an "occurrence" so as to trigger the insurerís duty to provide coverage.

Plaintiffs purchased a house in 2005 that had been built by contractor Eugene Spencer two years before. In 2007 they noticed water leaking into the house near a sliding door. The plaintiffs contacted Spencer, who investigated the problem and made some repairs. However, two years later, the plaintiffs again noticed water leaking into the house around the same sliding door. The plaintiffs contacted another contractor, who investigated the damage and found extensive water damage from additional leaks that could have been, but were not, discovered by Spencer.

At all relevant times, Spencer was covered under an insurance policy of defendant Concord Group Insurance that provided coverage for "property damage" caused by an "occurrence," which the policy defines as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions. The policy also contained a "your work" exclusion which excluded coverage for property damage caused by a contractorís work on his or her own work product.

Plaintiff homeowners sued the defendant Concord Group Insurance Company for a declaratory judgment, alleging that Spencer defectively repaired their house and that Concord Group was required to insure against the resulting damage. The Superior Court granted summary judgment in favor of Concord Group, finding that the coverage sought fell into the "your work" exclusion and also that there was no "occurrence" to trigger the insurerís duty to pay.

On appeal, the Court reversed the summary judgment on both grounds. The Court reasoned that Spencerís 2007 work should be considered separately from his 2003 completion of the house. Consequently, the "your work" exclusion would not apply, since that clause only eliminates coverage for damage caused by a contractorís work on his or her own work product. Since Spencerís 2003 work had been completed, it was a separate and distinct project. Thus when Spencer performed his repair work in 2007, he was not, for purposes of the insurance policy, working on his own work product and thus the "your work" exclusion did not apply.

Applying a distinction between Spencerís 2003 and 2007 work was also crucial to whether there was an "occurrence," since an "occurrence" only exists when the contractor causes damage to anotherís work product. Concluding that whatever damage Spencer caused to the home during his 2007 repairs was, for purposes of the insurance policy, damage to anotherís work product, the Court held that there remained an issue of material fact to determine whether the damage was caused by Spencerís 2003 construction or 2007 repairs.

Lawrence Gormley and Matthew Stachowske, of Hoefle, Phoenix, Gormley & Roberts, of Portsmouth for the plaintiffs. Doreen Connor of Wiggin & Nourie of Manchester, for the defendant.

Criminal Law

State v. DiMaggio
No. 2011-156
April 10, 2012

Issue: Whether the defendant was entitled to credit for days he was at liberty while participating in the Grafton County Drug Court Sentencing Program.

Defendant Derrick DiMaggio appealed the denial of his motion for pretrial confinement credit for the approximately 471 days he participated in the Grafton County Drug Court Sentencing Program (the DCSP).

In September 2009, the defendant pled true to probation violations and received a sentence of two and one-half to five years in state prison, all suspended for five years, conditioned on compliance with the DCSP. In the words of the sentence, the defendant was "placed in the custody of the Grafton County correctional facility so long as the defendant remains in the DCSP."

In 2010, the State moved to impose the defendantís suspended sentence because he had repeatedly violated the DCSPís rules, and the DCSP had recommended that his participation be terminated. After a hearing, the Superior Court remanded the defendant to state prison to serve the balance of his sentence with credit for time served.

The defendant then filed a motion, which was denied and the subject of his appeal, seeking day-for-day credit toward his sentence for the days he participated in the DCSP. The defendant cited RSA 651:19 and 651:19-a, which empower a court to order a person to receive credit towards a prison sentence for time spent in a "home confinement program," or "day reporting program." However, those statutes do not apply when a person has been sentenced to a term of confinement in state prison.

On appeal, the Court found that RSA 651:19 and 651:19-a were inapplicable and did not entitle the defendant to a day-for-day credit toward his sentence. Firstly, the DCSP was neither a home confinement program nor a day reporting program, as those terms are used in the statutes. Secondly, those statutes were inapplicable because the defendantís sentence was to state, not county, prison. Despite the language in the sentence placing the defendant in the "custody" of the Grafton County correctional facility, this was merely a reference to the defendantís participation in the county program, not incarceration in the county jail.

Michael Delaney, attorney general (assistant attorney general Jason Reimers) for the State. Lisa Wolford, assistant appellate defender for the defendant.

State v. Guild
No. 2010-692
April 10, 2012

Issue: Whether the Superior Court: (1) violated New Hampshire Rule of Evidence 615 and RSA 632-A:6, IV (2007) by failing to sequester the minor victimís mother; (2) erroneously denied defendantís motion to disqualify a juror without first conducting a voir dire of the juror; and (3) erroneously denied his motion to dismiss the AFSA charge.

Joshua Guild was convinced of one count of felonious sexual assault and one count of aggravated felonious sexual assault. The convictions were based on an allegation of sexual conduct with a single minor victim.

The defendant argued that his conviction should be overturned because the trial court erred by not sequestering the witnessís mother, who was a State witness. The Court assumed, without finding, that the trial court had erred by not sequestering the victimís mother as required by Rule 615 and RSA 632-A:6, IV. However, the Court did not agree with the defendantís argument that this error entitled him to a reversal of his conviction.

Drawing guidance from other jurisdictions, the Court held that when a court errantly fails to sequester a witness in a criminal case, it is the burden of the party that had opposed sequestration to demonstrate a lack of prejudice beyond a reasonable doubt. Applying that standard, the Court concluded that the State had satisfied its burden to rebut a presumption of prejudice. The testimony of the victimís mother was supported by other substantial evidence, and the evidence did not support the conclusion that the mother tailored her testimony to match that of other witnesses. For those reasons, the Court refused to reverse the conviction for the Superior Courtís failure to sequester a witness.

The defendant also argued that his conviction should be reversed because the Superior Court had denied his motion to disqualify a juror without first conducting voir dire of the juror. Defense counsel had requested that a juror be disqualified after counsel observed the juror laughing and rolling her eyes during the defenseís closing argument. The motion was denied.

The Court refused to consider the defendantís argument that he was entitled to voir dire, however, because a request for voir dire was not made, only a motion to disqualify the juror. Since the argument was not preserved at trial, the Court declined to address it.

Finally, the defendant argued that the trial court erred when it denied his motion to dismiss the aggravated felonious sexual assault charge because the juryís verdict was against the weight of the evidence. However, the Court once again declined to address this argument because it was not preserved at trial. Though the defendant had made a motion to dismiss at the close of the Stateís presentation of evidence, that challenge did not constitute an objection to the jury verdict based upon the weight of the evidence.

Michael Delaney, attorney general (Nicholas Court, assistant attorney general), for the State. Lisa Wolford, assistant appellate defender, of Concord, for the defendant.

State v. Davidson
No. 2010-402
April 10, 2012
Affirmed in part, reversed in part, and remanded.

Issue: Whether the trial court err by (1) denying the Defendantís motion in limine to exclude evidence that he "controlled" the complainant; and (2) denying his request for a defense of property instruction.

Defendant Roderick Davidson was convicted on three counts of simple assault and one count of criminal mischief. The charges stemmed from an argument and altercation between the defendant and his on-again-off-again girlfriend in October 2009 at the home that they shared. During the course of the altercation, the defendant allegedly threw the girlfriend into a wall, struck her in the face, causing a black eye, threatened to break her arm, struck her with the side view mirror of a car he was driving, and punched a hole in a wall.

The defendant argued that the court should have granted his motion in limine and excluded testimony which tended to show that he was "controlling" and had set rigid behavioral rules for the complainant on the grounds that it was inadmissible character evidence under Rule 404(b) of the Rules of Evidence, among others. The evidence included testimony that the girlfriend had previously sought a restraining order against the defendant; that the defendant had broken up with the girlfriend at work because she was speaking with a male manager; that he was controlling and jealous; that he did not allow her to speak with other males and rarely allowed her to wear makeup; that he was verbally cruel to her at work; and that he had previously assaulted her. The evidence also included text messages from the defendant to the girlfriend after the altercation that were "angry" and "spiteful."

The State had argued that the evidence was admissible under Rule 404 since the evidence was not meant to show that the defendant acted in conformity with his character, but rather to show motive and intent. However, the trial court had not given the jury any limiting instruction, and had allowed the evidence to be admitted for the broader purpose of providing "context" for the dynamic between the defendant and his girlfriend.

With respect to the charge of criminal mischief, the Court concluded that the admission of the contested evidence was not prejudicial to the defendant because he had admitted sufficient facts to sustain the conviction, and thus whatever error the evidence presented was a harmless one.

With respect to the three simple assault convictions, however, the Court reversed because the trial court had not limited the admission of character evidence to non-propensity purposes; allowing the State to admit evidence of the defendantís controlling and abusive behavior merely to provide "context" allowed it to label the defendant as an abuser and let the jury infer that the defendant had acted in conformity with that label. Thus the evidence violated Rule 404ís prohibition of character evidence. And since the admission of the evidence was prejudicial and, vis-a-vis the three assault convictions, was not harmless, the Court reversed those convictions.

Additionally, the defendant argued that the trial court had improperly denied his request for a defense of property jury instruction, based on the theory that since the girlfriend had taken the defendantís car keys, he was justified in using force to defend his property as provided by RSA 627:8. The trial court had denied the request for the defense of property jury instruction because RSA 627:8 may only be invoked when the defendant acted to prevent an "unlawful taking" of his property, which it interpreted as meaning "essentially a theft, as defined by statute."

The Court found that this interpretation of RSA 627:8 was errant. Looking to the statuteís legislative history, the Court ruled that an "unlawful taking" was not limited to instances of theft, which requires intent. Thus, the denial of defendantís request for a jury instruction was made in error.

Michael Delaney, attorney general (Elizabeth Woodcock, assistant attorney general), for the State. Lisa Wolford, assistant appellate defender, of Concord, for the defendant.


In re Guardianship of Raymond B.
No. 2011-218
April 10, 2012

Issue: Whether the lower court properly dismissed petitionerís petition for guardianship over the person and estate of their step-father, Dr. Raymond B.

Petitioners, Todd and Trent Bemis appealed an order of the Rockingham County Probate Court dismissing their petition for guardianship over the person and estate of their stepfather, Dr. Raymond B. and rejecting their request for an evaluation.

The petition alleged that, while living in Florida, more than seven months prior to the filing of the petition, Dr. B. demonstrated behavior that was evidence of his legal incapacity at that time. There were no allegations of such behavior after Dr. B. moved from Florida to New Hampshire to live with his son.

Dr. B. objected to the request for an evaluation and moved to dismiss the petition, arguing that they were insufficient because they did not meet the requirements of RSA 464-A:4, which requires a guardianship petition to allege factual incidents that might demonstrate incapacity, since the statute requires those incidents to take place within six months and at least one to have occurred within 20 days of filing the petition.

The Court sided with the petitioner and affirmed the dismissal based on a plain reading of the statute. Such a reading, it discussed, was also consistent with the objectives of the guardianship chapter, which include "encourag[ing] . . . maximum self-reliance in the individual . . . and . . . impos[ing] protective orders only to the extent necessitated by the individualís functional limitations."

The Court also upheld the lower courtís denial of the petitionerís motion for a psychiatric evaluation, finding that the denial was properly within the discretion of the trial court.

Jan Myskowski and Marla Matthews of Gallagher, Callahan & Gartrell for the petitioners. Ruth Tolf Ansell of Ansell & Anderson for the respondent.

Tort Law

Suprenant v. Mulcrone
No. 2011-661
April 20, 2012

Issue: Whether a court-appointed guardian ad litem was immune from tort liability for statements made in that capacity.

Plaintiff Robert Surprenant appealed the dismissal of his claims against the defendant, who had acted as guardian ad litem for the plaintiffís son in a contested custody dispute. The plaintiff alleged that the defendant had acted improperly by reporting to the court the plaintiffís failure to disclose his entire criminal history.

The defendant moved to dismiss, arguing that because the actions about which the plaintiff complained were all performed in her capacity as a court-appointed guardian ad litem, she was immune from liability under the doctrine of absolute quasi-judicial immunity. The trial court agreed and granted the motion to dismiss.

On appeal, the Court affirmed the lower courtís dismissal. In doing so, it cited the firmly-established rule that those exercising judicial or quasi-judicial functions should be immune from liability for wrongs committed by them when acting in that capacity. Since, as a court-appointed guardian ad litem, the defendant carried out a function that was integral to the judicial process, she was entitled to absolute quasi-judicial immunity.

Robert Surprenant, pro se. William Saturley and Mark Puffer of Preti, Flaherty, Beliveau, & Pachios, of Concord, for the defendant.

Daniel R. Lawson

Daniel R. Lawson is a magna cum laude graduate of the UNH School of Law and the schoolís Daniel Webster Scholar Honors Program. He practices law in Maine and New Hampshire. Attorney Lawson can be reached at

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