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Bar News - November 15, 2013

NH Supreme Court At-a-Glance: September 2013


Civil Procedure

Appeal of Annelie Mullen (NH Department of Employment Security)
No. 2012-487
Oct. 16, 2013
  • Whether the commissioner of the New Hampshire Department of Employment Security (department) properly ordered the appeal tribunal to reopen the record
This appeal arose out of an unemployment compensation claim in which the department determined it had overpaid the plaintiff. The commissioner reopened the record before the tribunal, which subsequently found, de novo, in the employee’s favor. After the commissioner requested a second de novo hearing of the case by the tribunal, citing the exclusion of testimony of a particular witness as basis for the reopening, and RSA-A:60, which allowed for the reopening of a record “...on the basis of fraud, mistake, or newly discovered evidence,” the petitioner appealed.

Judicial review of department decisions is appropriate only when a party has “exhausted all administrative remedies within the department...” Because the tribunal had not yet issued a final decision, and the board had not yet been able to review that decision, the Court found it lacked subject matter jurisdiction to review the issues raised on appeal.

Daniel Feltes, of New Hampshire Legal Assistance, of Portsmouth, on the brief and orally, for the petitioner. Michael A. Delaney, attorney general (Patrick J. Queenan, attorney, on the brief and orally), for the New Hampshire Department of Employment Security.

Contract Law

Joanne Gray & a. v. Leisure Life Industries, a/k/a Leisure Life Industries, Inc. a/k/a Leisure Life Industries, LLC & a.
No. 2012-406
Oct. 1, 2013
  • Whether the trial court erred in denying a motion for summary judgment on an issue of indemnity filed by plaintiffs
Orvis, a co-defendant in a product liability case, brought third-party claims against the other defendants for indemnification and contribution. The defendants did not indemnify or defend Orvis. Immediately prior to the start of trial, Orvis settled its claims and assigned its indemnification rights to the plaintiffs, which the plaintiffs subsequently sought to enforce against defendants through a motion for summary judgment. The trial court deferred its ruling on the motion until the end of the trial. The jury returned a verdict in the defendant’s favor, and the defendants moved for summary judgment, arguing that the final jury verdict precluded liability to the plaintiffs based on the indemnity claim. The trial court disagreed and granted the plaintiffs previously filed motion for summary judgment.

On appeal, the Court found that, to the extent that a right of indemnity existed, Orvis’ liability arose as derivative of the other defendants. The Court noted that to obtain indemnification and prevent unjust enrichment, the indemnitee must extinguish the liability of the indemnitor, either through settlement that discharged the indemnitor from liability, or through operation of law. Here, when Orvis, the indemnitee, settled and assigned its indemnification rights to the plaintiffs, it did not discharge the liability of the other defendants, the indemnitors, as they remained liable to the plaintiff. As such, the Court found that the defendants were entitled to judgment as a matter of law, on the indemnity claim and, as a result, the trial court erred in awarding Orvis’s attorney’s fees and costs to the plaintiffs.

Lawrence B. Gormley, Hoefle, Phoenix, Gormley & Roberts, of Portsmouth, for the defendant. Robert A. Stein & a., The Stein Law Firm, for the plaintiffs.

Criminal Law

The State of New Hampshire v. Matthew Tabaldi
No. 2012-214
Oct. 1, 2013
Affirmed in Part, Reversed in Part
  • Whether the trial court erred in denying defendant’s motion to strike a prospective juror
  • Whether the trial court erred in denying the defendant’s motion to dismiss the charge against him for possession of an electronic defense weapon
  • Whether the trial court erred in denying the defendant’s motion to dismiss the charge against him for possession of crack cocaine
  • Whether the trial court erred in admitting evidence at the objection of the defendant
This appeal arose out of a conviction by jury trial in which the defendant was found guilty of the sale of a narcotic drug (cocaine), possession of narcotic drugs (crack cocaine and cocaine), felon in possession of an electronic defense weapon, and receiving stolen property (firearm).

The defendant argued that the trial court erred in denying his motion to strike a prospective juror for cause. Noting that the trial court was entitled to special deference in determining the impartiality of a juror, because juror selection is subject to the “demeanor and credibility of the prospective juror,” the Court found that because the trial court sufficiently probed the prospective juror, and received and affirmative response that the prospective juror would not try the case on the basis of the defendant’s reputation, the Court satisfied its duty to determine the impartiality of the prospective juror, and the trial court was not in error when it denied the defendant’s motion to strike the juror for cause.

The defendant also argued that the lower court erred in denying the defendant’s motion to dismiss the possession of an electronic defense weapon. At trial, the state introduced the testimony of state trooper Trask, who had searched the defendant’s bag and found what he characterized to be a “taser.” However, even though Trask indicated that there were blue sparks that arched between two electrodes on the device, and he could hear the sound of electricity going back and forth when the device was activated, the Court found this was insufficient to establish as a matter of law that the taser found was designed for or capable of producing an electric charge necessary to classify it as “an electrical defense weapon” within the meaning of RSA 159:21. As such, the Court reversed the defendant’s conviction of being a felon in possession of an electronic defense weapon.

Regarding the charge against him for possession of crack cocaine, the Court noted that, in this case, the state had the burden of proving constructive possession beyond a reasonable doubt. However, even though the defendant made the argument that he did not constructively possess the crack cocaine, the Court felt the defendant did not thoroughly develop his argument to rebut the burden of proof, and a reasonably jury could have found he did, in fact, constructively possess the drugs, because the crack cocaine was (1) found in a location within the control and dominion of the defendant, (2) he was the driver of the vehicle where the drugs were found, and (3) several of his other possessions were located near the crack cocaine, including his black bag containing the drug paraphernalia. Given these facts, the Court found that the state met its burden and the evidence was sufficient to prove the defendant constructively possessed the crack cocaine.

At trial, the defendant challenged the testimony introduced by the state, in which officer Trask stated that he was told, but did not witness, the amount of the “buy” money taken off of the defendant at the time of arrest. The court found the testimony constituted inadmissible hearsay that served as an introduction of an out-of-court statement to prove the truth of the facts asserted. However, because there was alternative evidence that the defendant sold cocaine to an informant, the error was harmless. In particular, the Court focused on the defendant’s admission that he “had to wait for a girl and make a sale” and the substantial evidence that the defendant regularly sold drugs, by the defendant’s own admission. In addition, a white powder found in defendant’s desk tested positive for cocaine, and a bag found in the defendant’s vehicle contained drug-selling paraphernalia.

Also at issue were two photographs admitted as evidence. In one photo, the defendant is sitting in a car and holding fanned-out money in his hand. The second was taken by police and shows the first photograph tucked into the frame of a mirror, surrounded by other pictures of the defendant’s son. The defendant argued the pictures were irrelevant and, even if they were marginally relevant, their limited probative value was substantially outweighed as unfairly prejudicial. The Court found that the photographs were introduced to prove the defendant’s dominion and control over the room in which the cocaine and other incriminating items were found. As such, the Court concluded their probative value was not substantially outweighed by the danger of unfair prejudice to the defendant, and properly admitted.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State, James B. Reis, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

Family Law

In Re Sophie-Marie H.
No. 2013-276
Oct. 1, 2013
  • Whether the Family Division Court erred in terminating the father’s parental rights on the basis that he failed to support, educate, and care for the child
  • Whether termination of the father’s parental rights was in the best interests of the child
The Court found that the trial court erred in terminating the father’s parental rights because the mother, who had sole legal custody of the child, failed to prove beyond a reasonable doubt that the father was “financially able” but had nevertheless “substantially and continually” neglected to support, educate, and care for child.

While the Court declined to define what it means to be “financially able,” it noted that even though the father had sporadic employment at times and was “temporarily” out of work, that did not establish that he was “financially able” to pay for child’s care, nor did the father’s fianceé’s opinion that the father was a “good provider” serve to meet the proof that he was “financially able.” The Court went on to point out that even though the father was not current on his child support payments, the mother had also failed to demonstrate that he had an ability to make such payments.

The mother could also not rely on the father’s failure to pay child support during incarceration as evidence that he had failed to provide support, education or care for the child, because the final decree on the parenting plan had provided that arrearages in the child support obligation during incarceration would continue after the father’s incarceration ended and would be “paid after he obtains employment.”

Finally, since the mother failed to prove a statutory ground for termination, the Court did not need to address whether termination was in the best interests of the child. However, since this issue was addressed in the parties’ briefs, the Court addressed the issue. While the Court noted that one factor to consider included the “difficulty and confusion” that might result from reintroducing an absent parent to a child, in this case, the father had endeavored to maintain a relationship with the child, but had been thwarted, in large part, by the mother. In addition, the Court did not feel that the existing relationship of the mother’s fiancé with the child would be harmed with reintroduction of the father into the child’s life, because the mother had legal and physical custody of the child, and the child would remain with the mother absent further court order. Also, the trial court had broad discretion with regard to visitation and contact with a child’s non-custodial parent, and could further limit if the situation required. As such, termination of the father’s rights was not warranted in this situation.

Joshua L. Gordon, Law Office of Joshua L. Gordon, of Concord, for the mother. Nancy K. Quinlan, of Dover, for the father.

In Re Faith T. & a.
No. 2012-735
Oct. 16, 2013
  • Whether the trial court erred in concluding that the petitioners failed to prove beyond a reasonable doubt that the mother substantially and continuously neglected to pay for necessary subsistence, education, or other care of the children
  • Whether the trial court erred in failing to balance the best interest of the children
  • Whether the trial court erred in dismissing the claim that the mother failed to correct the conditions leading to a finding of neglect or abuse under RSA 169-C
Before a Court will order termination of parental rights, the petitioning party must prove a statutory ground for termination beyond a reasonable doubt. Here, the Court noted that the issue was not whether the amount the mother paid in child support was sufficient to provide the subsistence, education or other care necessary for [the] mental, emotional, or physical health of three young children, but rather whether she paid an amount that she was “financially able” to pay.

In this case, the trial court found that the mother was able to consistently meet her financial obligation through automatic deduction of the support amount by wage assignment. The mother also paid an amount of child support that was in line with the income guidelines for what she was “financially able” to pay, and which had increased as the mother’s employment had increased. As such, petitioners did not meet their burden of proving beyond a reasonable doubt that grounds for termination had been met.

Because the petitioners failed to prove a statutory ground for termination, the Court declined to consider whether termination was in the best interest of the child. The Court concluded that because DCYF never filed a petition for abuse or neglect against the mother pursuant to RSA 169-C, the trial court properly dismissed the petition.

Barbara and George G., self-represented petitioners, by brief, John P. LeBrun, Goldman & LeBrun, of Concord, for the respondent, and Joseph A. Foster, attorney general (Suzanne M. Gorman, senior assistant attorney general, on the memorandum of law, and Stephen G. LaBonte, assistant attorney general, orally), for the State of New Hampshire, as amicus curiae.

Property Law

Houston Holdings, LLC v. City of Portsmouth
No. 2012-570
Oct. 9, 2013
  • Appeal of a jury award as just compensation for the defendant’s taking by eminent domain of easement rights in property of the plaintiff
A piece of property was taken as an easement over property owned by Houston Holdings as part of the Bartlett-Islington Sewer Separation Project by the City of Portsmouth. During a “just compensation” hearing by the Board of Tax and Land Appeals (BTLA), the city appraiser valued the property at $18,500. The plaintiffs introduced an appraisal of $125,000. The BTLA found the just compensation amount to be $27,000. However, the plaintiffs appealed to superior court to have the damages reassessed, and a jury awarded an amount of $128,000 in plaintiffs’ favor. The city appraiser’s valuation was not admitted as evidence.

The City appealed, arguing that the BTLA appraisal should have been admitted as evidence, because the jury could not properly “reassess” the damages, if the initial appraisal was not put into evidence. The Court, however, found that the Legislature explicitly provided for such appeals to be de novo, and, as such, the findings of the lower court are not admissible as evidence and the BTLA report was properly excluded.

In admitting the BTLA report for its probative value and relevancy, the Court disagreed and found that the report was not relevant and exclusion of the report did not constitute error.

John P. McGee, Jr., of Flynn & McGee, on the brief, of Portsmouth, for the plaintiff. Suzanne M. Woodland, assistant city attorney, by brief, for the defendant.

Stacy E. Shurman

Stacy E. Shurman works at Fresenius Medical Care in Waltham, MA and earned a JD from Mississippi College School of Law in 2007 and an LLM-CT from the University of New Hampshire School of Law in 2011.

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