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Bar News - August 17, 2012

NH Supreme Court At-a-Glance - July 2012


Civil Procedure; Evidence

State of New Hampshire v. William Town
No. 2010-774
July 18, 2012
Reversed on first issue and remanded
  • Whether the trial court erred in denying the defendantís motion to exclude a juror and by allowing the victim to testify about certain statements made by him.
  • Whether the trial court erred in denying the defendantís motion for a mistrial after allowing testimony suggestive of uncharged acts of sexual misconduct and by providing a deadlock jury instruction after twice learning of the juryís numerical split.
Town (defendant) was convicted by jury of one count of aggravated assault. On appeal, the defendant first argued that the trial court violated his right to a fair and impartial trial under the State and Federal Constitutions when it found a juror qualified after the juror disclosed during voir dire that, given her prior experience as a victim and her "need" to be on the jury, she could "try" to be fair and impartial. The Court disagreed with the Stateís threshold assertion that the defendant failed to preserve this argument on appeal, and noted that the defense counsel had alerted the trial court of his concerns about the jurorís partiality.

Citing Part I, Article 35 of the NH Constitution, which provides that "[i]t is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit," the Court noted the application of this provision to jurors. The Court further noted that, once the trial court determines a juror is free from prejudice, its duty on appeal is to evaluate the voir dire testimony and it can only disturb this ruling if the trial courtís decision was an "unsustainable exercise of discretion" and was "against the weight of the evidence." The Court held that the jurorís indication that she would "try" to be fair and impartial was insufficient to establish her impartiality, and concluded that the trial court "unsustainably exercised its discretion" in finding the juror qualified. Because the defendantís argument prevailed under the State Constitution, the Court did not consider the federal issue.

The defendant also argued that the trial court erred under N.H.R. Evid. 403 when it admitted evidence of a statement he had made to the victim acknowledging that he was "disgusting," because it was irrelevant and prejudicial. The Court disagreed with this argument, finding that the evidence was relevant as a possible admission of guilt, and that its potential for unfair prejudice did not outweigh its probative value; thus, the trial court did not "unsustainably exercise its discretion" when it admitted this evidence.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State. George H. Ostler and Christopher A. Dall (on the brief), DesMeules, Olmstead & Ostler, Norwich, Vermont, for the defendant.

Constitutional Law: 5th Amendment; Evidence

State of New Hampshire v. Gary E. Marchand
No. 2011-297
July 31, 2012
Reversed in part, vacated in part and remanded
  • Whether the State violates a defendantís right against self-incrimination when it compels a defendant to undergo a psychological or psychiatric examination when the defendant raises an insanity defense. And, if the State may compel these examinations, what procedures must the trial court follow when ordering these examinations?
In connection with the alleged homicide of his wife, the defendant was indicted on one count of first degree murder and one count of second degree murder. He filed notice of an insanity defense in March 2010 with the superior court; several months later he notified that State that to establish this defense, he would present the testimony of five physicians who had provided treatment of his psychiatric conditions prior to the alleged homicide but who had no plans to introduce expert testimony evaluating his behavior following the homicide. These physicians would testify only about the defendantís mental health prior to the homicide, and none of them had met with the defendant or discussed the homicide with him.

The State moved to compel a psychological evaluation of the defendant by the Stateís expert, Dr. Albert Drukteinis. In response to the Superior Courtís request for additional briefing, the partiesí briefs focused on State v. Briand, 130 N.H. 650 (1988), in which the Court held that a criminal defendant waives her right to resist a court-ordered psychiatric examination when she submits such an examination by defense experts; and intends to rely on that testimony at trial. The Superior Court found that this case differed factually from Briand because the defendant here did not make a statement to his physicians (experts) after the alleged homicide, and that Briand does not resolve the issues here because the defendant in Briand raised a "battered woman" defense, and not an insanity defense. The court found no case law on point, and considered the possible outcomes of a ruling that compelled the defendant to submit to an examination. The court thus concluded that the N.H. and federal constitutions "should not tolerate placing the defendant in this untenable position."

The Supreme Court agreed with the trial court that Briand did not resolve the issue of what procedures a trial court must follow in compelling examinations, nor did it resolve the threshold question of whether an examination order in this context would violate the defendantís right against self-incrimination. The Court focused on the fact that in Briand, the defendant did not plead insanity and that she intended to "use her expert to support a self-defense plea or to prove invocation." Unlike the affirmative defense of insanity, for which the defendant bears the evidentiary burden, these two defenses (self-defense and provocation) "constitute elements of the crime for which the State bears the burden of proof."

The Court found that a court-ordered evaluation conducted to rebut an insanity defense would not violate the defendantís right against self-incrimination under either the NH or federal constitutions, and noted that the Stateís examination "would be used for the limited purpose of rebutting" the defendantís insanity defense and not to prove the defendantís guilt. The Court set forth a detailed framework for a trial court to follow when ordering examinations of defendants, which reflects this holding and directs the court to consider prudential concerns.

Michael A. Delaney, attorney general, (Thomas E. Bocian, assistant attorney general), for the State. David M. Rothstein, deputy chief appellate defender, Concord, for the defendant.

Debtor-Creditor: Homestead Right

Tracy M. Walbridge v. The Estate of Raymond Beaudoin, JR & a.
No. 2011-107
July 18, 2012
  • Whether the trial court erred as a matter of law when it ruled that the petitionerís homestead right in the Walbridge property was not established until she occupied the property actually and physically.
  • Whether the petitionerís homestead right in a property was exempt from the respondentís mortgage because the mortgage deed failed to comply with RSA 480:5-a.
The petitioner owned property at 15 Walbridge Court, Rochester, that she and her then husband (Walbridge) purchased in 2003, and on which they later built a home. While building this home, they resided at 74 Charles Street, Rochester. They executed a mortgage on the Charles Street property, and the petitioner then released her homestead exemption rights to this property. The deed lists Walbridgeís address at 74 Charles Street and states that this property is not part of the mortgagorís homestead. At the time of conveyance (of the mortgage deed and promissory note), the home at Walbridge Court was not completed. In 2009, the petitioner and Walbridge divorced, and the divorce decree granted the petitioner all right, title, and interest in the Walbridge Court property. This property became subject to a real mortgage foreclosure sale by the respondent originally scheduled for June 17, 2010, but has been stayed.

The petitioner appealed the superior court order denying her petition to confirm her homestead right exempt from the mortgage held by the respondent. The trial court determined that because the petitioner did not actually occupy the Walbridge Court property when the mortgage and promissory deed were conveyed, the petitionerís homestead right was not exempt from the respondentís mortgage. RSA 480:4, :5-a (2001).

On appeal, the petitioner argued that the trial court erred as a matter of law when it determined that her homestead right in the Walbridge Court property was not established until she actually, physically occupied it. The Court disagreed, and found that the trial court did not err when it found that the petitionerís intent to occupy the property was not sufficient to establish her homestead right in it. The Court emphasized that the purpose of this exemption is to secure the shelter of debtors and their families; thus, actual and physical occupancy is requisite to the existence of the homestead right. Mere intention to occupy is therefore insufficient.

The Court also disagreed with the petitionerís argument that her homestead right in the property is exempt from the respondentís mortgage because the mortgage deed failed to comply with RSA 480-5:a. The Court found that, according to the law, because the mortgage deed was executed prior to the petitioner acquiring her homestead right in the property, the deed did not have to comply with RSA 480:5-a in order for it to be a "charge" on her "later-acquired" homestead right.

Law Office of Carl W. Potvin, Rochester, for the petitioner. Gregory D. Wirth, The Law Offices of Gregory D. Wirth, Dover, for the respondent.

Family Law: Child Support

In the Matter of Susan J. Regan and Steven S. Regan
No. 2011-701
July 18, 2012
Affirmed in part, Reversed in part, and Remanded
  • Whether the trial court erred in declining to modify the respondentís obligation to pay half of this minor childís uninsured medical expenses and to carry life insurance for his childís benefit.
  • Whether the trial court erred when it required the parties to exchange child custody at a police station.
The father (respondent) appealed a Marital Master order, approved by the 9th Circuit, Manchester Family Division, that declined to modify his obligations to pay half of his childís uninsured medical expenses and to carry life insurance for his childís benefit, even though doing so would reduce his monthly income below the self-support reserve, as required by RSA 458-C:3, IV(b) (2004), and that required him to exchange child custody at a police station. The trial court recalculated the respondentís child support obligation according to statutory child support guidelines and found that the respondentís income reduction since the time of the partiesí parenting plan constituted a "substantial change of circumstances." The trial court found, however, "no basis to modify" the respondentís obligation to pay half of his childís uninsured medical expenses, or to reduce the required amount of life insurance he must pay, and granted the motherís motion for custody exchanges at a police station.

The Court found that the trial court erred when it declined to modify the respondentís obligation to pay half of his childís uninsured medical expenses. In 2005, RSA 4580-C was recodified as RSA 461-A:14, IX (Supp. 2011), and in 2007, was amended, along with the child support guidelines. The amendments created the new "[m]edical support obligation," bringing "medical costs not covered by insurance" within the scope of RSA 458-C. The Court interpreted the amendments to include uninsured medical expenses in the medical support obligation of RSA 458-C:3. Thus, payment of these expenses would reduce the respondentís income below the statutory self-support reserve.

The Court found that the trial court did not err when it declined to modify the respondentís obligation to carry life insurance for his childrenís benefit, noting the parties had agreed that this obligation is not child support. The Court construed the "bright-line limitations" of the self-support reserve terms of RSA 458-C:3, IV(b) as inapplicable to awards not governed by the child-support guidelines. The Court also found that the trial court did not unsustainably exercise its discretion when it found that this payment would not unduly burden the respondent, or when it considered the respondentís assets in it calculations.

The Court upheld the trial courtís decision to require the parties to exchange custody at a police station. Noting that it can change this decision only if it couldnít have been reasonably made on an objective basis, the Court found that the N.H. DCYF (Division for Children, Youth and Families) report included in the record established the need for a more structured environment for these exchanges. Thus, the trial courtís conclusion was a sustainable exercise of discretion.

Andrew J. Piela, Hamblett & Kerrigan, Nashua, for the petitioner. Jared OíConnor, Gawryl MacAllister & OíConnor, Nashua, for the respondent.

Municipal Law

EnergyNorth Natural Gas, Inc. d/b/a National Grid NH v. City of Concord,
No. 2011-723
July 18, 2012
Reversed and remanded
  • Whether the trial court erred in granting petitionerís motion for summary judgment, where the petitioner argued that State law preempted the City ordinanceís imposition of roadway fees.
In June 2010, National Grid (petitioner) sought declaratory and injunctive relief from the city requirement to pay roadway fees, and argued that state law preempted these fees and/or they were an unlawful tax. Upon the partiesí filing summary judgment cross-motions, the trial court denied the request for a preliminary injunction, and decided that state law preempted the cityís ordinance. Because it determined that state law preempted the fees, the trial court did not consider whether the cityís roadway fees were an unlawful tax.

The Court set forth the preemption analysis, noting that preemption depends on statutory interpretation, which is a question of law reviewed de novo, and that statutes must be construed as consistent with each other whenever reasonably possible. Because the parties agreed that the applicable statutes (RSA 231:185 and RSA 236:11) could be interpreted to be consistent with each other, the Court assumed that both statutes apply. RSA 231:83 requires persons or corporation who dig up highways or public ground to lay gas or water pipes to restore the highway or ground to "as good condition as it was before doing so." RSA 236:11 requires those who excavate or disturb the surface of or any areas surrounding any highway to restore the highway "to a condition at least equal to the condition that was present before the excavation or disturbance."

The Court assumed that the meaning of the term "condition," as used in these statutes "includes the life expectancy of the road." The petitioner argued that the statutes preempt the ordinance because, in imposing a fee, the ordinance assumed that restoring the excavated roadways is impossible; yet, the statutes "assume [] that a street can and should be restored to its former condition." The respondent argued the fees are consistent with the statutes because they fund the costs of repairing roadways to their prior condition, and that the evidence shows that the overall roadway life is reduced when paved roadways are excavated and patched. The Court was not persuaded that anything in the statutory language or the legislative history suggests any determinations as to whether repaving excavated roadways restored their initial life expectancy.

In reviewing the trial courtís summary judgment motion de novo, the Court determined that the trial court erred in granting summary judgment to the petitioner, because a factual dispute remained between the parties regarding the question of whether patching excavated roadways with new pavement diminishes or restores the roadwaysí initial life expectancy.

Ralph F. Holmes and Katie Kiernan Marble (on the brief), McLane, Graf, Raulerson & Middleton, Manchester, for the petitioner. James W. Kennedy and Danielle L. Pacik (on the brief), City Solicitorís Office, Concord, for the respondent.

Public Employee Labor Law; Contract Law

Profíl Fire Fighters of Wolfeboro, IAFF Local 3708 & a. v. Town of Wolfeboro
No. 2011-438
July 20, 2012
  • Whether the trial court erred in granting the townís (respondent) motion to dismiss the petitionersí petition for an ex parte temporary restraining order against the town that requested temporary and permanent injunctive relief against the respondentís motion to rescind its recognition of the union.
  • Whether the trial court erred when it rejected petitionersí doctrine of laches and equitable estoppel arguments.
On March 12, 2022, the Wolfeboro Town voters authorized its Selectman Board to recognize a collective bargaining unit of the Wolfeboro Fire-Rescue Department and to make and enter into collective bargaining contracts with this unit. The NH Employee Labor Relations Board (PELBR) had never certified the union, which included nine employees in the department, as a bargaining unit. In 2002, the union and the board entered into a collective bargaining unit. In 2004, they entered a new agreement, which expired in 2006 and included a status quo provision. In 2006, the parties agreed to a one-year extension. Thereafter, the parties were unable to negotiate a further agreement and conducted themselves according to the status quo provision of the 2004 agreement. In 2010, the board voted to rescind its recognition of the union, and the petitioners filed an ex parte temporary restraining order against the town for injunctive relief; the trial court granted the temporary relief. The town moved to dismiss the proceeding, and the trial court granted this dismissal. The petitioners then appealed.

Reviewing the dismissal order, the Court assumed the truth of the facts of the pleading and construed reasonable inferences in the petitionersí favor. The Court found that although the two relevant statutes, RSA 31:3 and 273-A:8, allow the town to "recognize unions and enter into collective bargaining with them," 273-A limits this power ("In no case shall the [PELBR] certify a bargaining unit of less than 10 employees with the same community of interest"). Because the union had only nine employees, the board had no authority to contract with it, and the 2002 agreement was ultra vires and, thus, void. The Court focused on the clear language of the statutes, the comprehensive legislative intent, and its ability to read them consistently.

The Court found no error in the trial courtís factual conclusion that until 2010, the board had insufficient knowledge of the impact of RSA 273-A to justify the petitionersí equitable doctrine of laches argument. The Court also disagreed with the petitionersí equitable estoppel claim, finding that the petitioners failed to allege facts that show that the board misrepresented its power to certify the union as a bargaining unit. The Court also rejected the petitionersí final argument that the trial court erred when it refused to reform the collective bargaining agreement into separate contracts. The Court emphasized that the although the "Savings Clause" provision requires amendment of provisions that fail to confirm with state laws, the "legal infirmity" in this case does not arise in the agreement but in the townís inability to enter into the agreement.

John S. Krupski, Molan, Milner & Krupski, Concord, for the petitioners. Daniel P. Schwarz, Jackson Lewis, Portsmouth, for the respondent.

Property Tax

Henderson Holdings at Sugar Hill, LLC v. Town of Sugar Hill
No. 2011-843
July 31, 2012
  • Whether RSA 76:16 requires landowners to sign and certify applications for abatement that they have a "good faith basis and the facts in the application are true" before they appeal any municipal assessment decision to the superior court or to the BTLA (Board of Tax and Land Appeals), especially when the facts show a knowing choice not to sign.
  • Whether the trial court erred in denying the respondentís (Town) motion to dismiss the petitionerís appeal of its abatement application denial.
In January 2009, the petitioner applied to the respondent (Town) for abatement of its 2008 real estate taxes, and wrote, "see agent form" in the signature line and attached an agent authorization form. This form did not, however, include a certification by the petitioner that the information submitted by the agent was true. The townís failure to respond to the application constituted denial under RSA 76:16, II (2003). The petitioner appealed this denial, and the Town moved to dismiss. Pending resolution of Appeal of Wilson, 161 N.H. 659 (2011), the litigation was stayed. The superior court then lifted the stay and denied the motion, finding that the petitionerís failure to sign and certify the application did not warrant dismissal. The petitioner then filed this interlocutory appeal.

The town argued that the superior court lacked jurisdiction to hear the appeal because the petitioner did not sign or certify the application. The Court found that whether the town permissibly denied the application is not an issue relevant to jurisdiction, but rather concerns only what the statute requires of applications. The town also argued that the trial court erroneously denied its motion to dismiss, contending that its denial of the petitionerís application was proper because it did not comply with the statutory requirements.

The Court noted that in Wilson, the petitioners argue that the BTLA rule, that "[t]he lack of the taxpayerís signature and certification shall preclude" appeals to the BTLA, conflicted with RSA 76:16, IV, which provides that an applicantís failure to use the application form set forth therein "shall not affect the right to seek relief." The Court further held that information required by RSA 76:16,III, including a signature and certification, does affect the right to seek tax relief, and determined that the BTLA rule is consistent with RSA 76:16, III. The Court reiterated what it said in Wilson: "RSA 76:16, III(g) requires the taxpayer to certify that he or she has a good faith basis for applying for an abatement and that the facts in the application are true."

The Court found that its holding in Wilson established that this provision "provides an independent basis" on which the town can reject unsigned and uncertified applications.

The Court refused to construe the statute in such a way that would "allow a taxpayer to apply for an abatement without providing a town with Ďnecessary informationí," because doing so would render the statute null. The Court concluded that the superior court could review the townís denial to determine the review is appropriate on the merits, even though the town permissibly denied the petitionerís application based on lack of signature and certification.

Fred K. Mayer, III, Mayer Law Offices, Nashua, for the petitioner. Adele M. Fulton, Gardner Fulton & Waugh, Lebanon, for the respondent.

Real Property (Eminent Domain); Evidence

N.H. Depít of Transp. v. Pasquale Franchi,
No. 2011-023
July 18, 2012
  • Whether the trial court erred in denying the appellant his motion in limine to preclude expert testimony concerning condemnation damages for a partial taking of his land.
  • Whether the trial court erred in modifying the appellantís requested pre-trial instruction.
  • Whether the trial court erred in excluding evidence of a historic development plan.
In the 1980s, the appellant purchased 77.2 acres in Conway, 6.38 acres of which the state acquired in June 6, 2007, via a declaration of taking with the N.H. Board of Tax and Land Appeals (BTLA). The BTLA awarded the appellant $1,000,000 as just compensation according to RSA 498-A:25 (2010). Both the state and the appellant filed petitions in superior court to reassess damages under RSA 498-A:27 (2010). Prior to trial, the trial court denied the appellantís motion in limine to exclude the expertís second land appraisal, in which he argued that under N.H.R. Evid. 401 and 702, the appraisal was unreliable and irrelevant.

At trial, the jury awarded the appellant $560,000 as just compensation. The appellant then appealed this verdict, arguing that the expertís second land appraisal did not rise to the "threshold level of reliability required by N.H.R. Evid. 702 and Daubert, 509 U.S. 579 (1993)." The Court disagreed with the defendant, and found that the trial court had properly admitted the evidence of the expertís second testimony. The Court emphasized the trial court "functions only as a gatekeeper, ensuring a methodologyís reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expertís testimony." The Court reasoned that, although the two appraisals "were based upon different assumptions," there was nothing that indicated the second appraisal or the expertís testimony was unreliable.

The Court also disagreed with the appellantís additional five arguments and found no error in the trial courtís decisions. The Court determined the expert testimony was still relevant, despite the fact the expertís reservations about the underlying assumptions of his analyses. The Court also rejected the appellantís argument that the expertís feasibility analysis was unreliable and irrelevant, and noted that the feasibility report was harmless because the jury did not rely on it. The appellant also argued that that trial court erred in modifying the pre-trial instruction he provided for the jury, and that the trial courtís instruction was a "carte blanche" instruction "to consider the abnormal collapse of the real estate market." The Court disagreed, and emphasized that the trial court had properly instructed the jury to value the property at the date of the taking.

The Court found that the trial courtís jury instructions regarding property valuation correctly stated the law. The Court again disagreed with the appellantís final argument that the trial court erred in excluding evidence of a historic development plan for his property. The Court found no error in this exclusion, noting the trial courtís considerable discretion to determine the relevance of evidence under N.H.R. Evid. 403.

Michael A. Delaney, attorney general, Mark P. Hodgdon, senior assistant attorney general, and Lynamarie C. Cusak, assistant attorney general (on the brief), for the appellee. Randall F. Cooper, Cooper Cargill Chant, North Conway, for the appellant.

Real Estate: Zoning

Merriam Farm, Inc. v. Town of Surry
No. 2011-311
July 18, 2012
  • Whether the trial court erred in upholding the zoning board adjustmentís (ZBA) denial of the petitionerís application for a building permit by the ZBA.
The petitioner owns a three-acre parcel of land (Property) in Surry. Surryís zoning ordinance requires at least 200 feet of frontage on public streets to build on the Property. A "public street" under the ordinance is a Class V or above highway; the Property has frontage on a class IV highway. RSA 229:5 (2009). Surryís selectboard denied the petitionerís building permit application because the Property lacked the required frontage. The selectboard reconsidered the application but again denied the permit as well as the petitionerís motion for rehearing. The petitioner appealed the boardís decision to the ZBA, under RSA 674:41, II (2008). The ZBA denied the appeal in part because the road on which the Property has frontage was closed in 1971 "for the purpose of preventing development." The ZBA also chose not to grant the petitioner the statutory "reasonable exception" to RSA 674:41 (2008), and denied the petitioner a rehearing. The petitioner appealed the ZBAís decision, which the trial court upheld.

The Court noted that judicial review in zoning cases is limited, because factual findings of the ZBA are considered prima facie lawful and reasonable, and the trial courtís statutory interpretation and application are reviewed de novo, as a matter of law. The petitioner argued that the selectboard failed to consult with the planning board before denying the permit application. The Court found that it did not need to address the merits of this argument because the selectboard remedied this error by consulting with the planning board.

The petitioner next argued it must only meet the statutory "practical difficulty" standard of RSA 674:41, II, in order to appeal the denial of its building permit, and that this is a less rigorous standard than "unnecessary hardship," under RSA674:33, I(b)(5) (Supp. 2011). RSA 674:41, II allows an applicant to appeal a building permit denial, "[w]henever the enforcement of the provisions of [RSA 674:41] would entail practical difficulty or unnecessary hardship." The Court followed the New Jersey approach that finds these terms interchangeable, as this approach "best comports" with N.H. legislative intent to adopt a uniform standard ("unnecessary hardship") for both area and use variances.

However, the Court rejected the petitionerís argument, because the petitioner did not argue that it met the unnecessary hardship requirement.

The Court also rejected the petitionerís next argument that the ZBA erred because it failed to make particular findings about the Property at issue. The Court noted the extent to which the ZBAís findings included specific findings of fact, and noted that the ZBA was not required to accept the petitionerís evidence, despite the petitionerís argument that it was uncontroverted. The Court also found that the petitioner did not preserve for review its argument that applying Surryís ordinance to the Property resulted in an "unconstitutional "taking" by inverse condemnation," as the petitionerís motion for rehearing to the ZBA failed to put the ZBA on notice of this takings claim, given the vagueness of the petitionerís motion.

Gregory E. Michael (on the brief) and Christopher G. Aslin, Bernstein, Shur, Sawyer & Nelson, Manchester, for the petitioner. Gary J. Kinyon, Bradley & Faulkner, Keene, for the respondent.

Tish Liggett

Tish Liggett received a J.D./LL.M. from the UNH School of Law with an emphasis on business law and IP law. She is currently employed at the Law Offices of John M. Cunningham, Concord, NH, and is a Ph.D. candidate at Indiana University, Bloomington. She can be reached at

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