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Bar News - August 20, 2014

Supreme Court At-a-Glance


July 2014
Administrative Law
Appeal of Old Dutch Mustard Co., Inc.
No. 2012-750
July 16, 2010
  • Whether the New Hampshire Waste Management Council’s decision to grant Pioneer Point a permit to build and operate a solid waste facility adjacent to the Petitioner’s property was lawful and reasonable
This appeal arose from a decision of the New Hampshire Waste Management Council (council) upholding a determination by the New Hampshire Department of Environmental Services (DES) to grant a permit to the Intervenor, Pioneer Point 2 Enterprises LLC (Pioneer), to build and operate a solid waste facility adjacent to the property of Old Dutch Mustard Co. Inc., petitioner. The solid waste facility in question, Unit 2, is within a structure, and the “facility” is outside of the 250-foot setback required by law, while the remainder of the structure is not.

The court agreed with council’s interpretation that the term “facility” encompassed only Unit 2 as a “location, system, or physical structure for the collection, separation, storage, transfer, processing, treatment, or disposal of solid waste,” and not the entire building is consistent with the Legislature’s intent for RSA 149-M:4 and that petitioner failed to show that council’s construction of the term “facility” was clearly unreasonable or unlawful.

The court also found that petitioner did not show that it was unreasonable or unlawful for the council to issue the permit, even though Pioneer may have conducted pre-permit construction activity. The court’s interpretation of RSA 149-M:9 found that there is no requirement in the statute or regulations that compels DES to deny a permit if an applicant engages in construction prior to receiving the permit. The court also emphasized that its interpretation of RSA 149-M:9 does not mean that an applicant beginning construction of a waste facility before a permit is issued can ignore RSA 149-M:9, and an applicant may be subject to fines and loss of investment if it does not obtain a permit.

The court next addressed the petitioner’s argument that the council erred when it upheld the DES waiver of the regulation requiring a solid waste facility to be no less than 50 feet from any property line, so that Pioneer could construct a driveway for its facility. Petitioner asserted that the council erred in upholding the permit because it did not consider the impact of the waiver on petitioner’s business, to which petitioner presented experts.

The court concluded that DES and the council were not compelled to accept the opinion of petitioner’s experts, and they were entitled to rely upon the traffic information that Pioneer presented in its application and at the hearing.

Court also addressed petitioner’s argument that the council applied the incorrect standard of review of DES’s decision to allow the waiver for the 50-foot setback of petitioner’s driveway. Petitioner argued that the council was obligated to “analyze whether DES’ review of the [waiver] criteria” complied with the regulations governing such waivers. The court ruled that the correct standard of review required petitioner to prove that DES decision was: contrary to case law, statute, or rules; or arbitrary and capricious. The court maintained that the council is allowed to admit new testimony, documents, materials and objects into evidence, and thus the council was not in error to analyze the totality of the evidence, including new evidence presented at the hearing, when it made its decision of whether to grant a waiver was lawful and reasonable.

John-Mark Turner and Robert P. Cheney, Jr. on the brief, and Turner orally, for Petitioner, Old Dutch Mustard Co. Michael A. Delaney, Mary E. Maloney, on the brief, for the New Hampshire Department of Environmental Services. Paul M. DeCarolis on the brief and orally, for the intervenor, Pioneer Point Enterprises.

In the Matter of R. Eric Bloomfield, DVM
No. 2013-192
July 11, 2014
  • Whether the New Hampshire Board of Veterinary Medicine unlawfully or unreasonably sanctioned the respondent, because the board did not require expert testimony on the standard of care, and there was “no articulated standard” upon which the respondent reasonably had sufficient notice to defend himself
This appeal arose from a decision of the New Hampshire Board of Veterinary Medicine (board), which reprimanded respondent, finding that respondent failed to do a physical examination of a puppy prior to demonstrating a restraint technique, that respondent’s restraint of the puppy was excessive, and that respondent failed to respect the opinion of the puppy’s owners.

Respondent argued on appeal that the evidence did not support the board’s finding that the restraint was excessive, that RSA 332-B:14, II(c) violated his constitutional right to due process because the statute defines the “misconduct” necessary to support disciplinary proceedings by simply restating the same term, as ‘[a]ny unprofessional conduct’, and that the board unlawfully or unreasonably sanctioned him because it did not require expert testimony on the standard of care, and there was no articulated standard upon which the respondent reasonably had sufficient notice to defend himself.

The court affirmed the board’s decision, noting that board had evidence before it that the restraint of the puppy by the respondent was excessive, especially given the breed, and there was evidence that respondent did not do a preliminary physical examination prior to the restraint demonstration. The court further found that RSA 332-B:14, II (c) does not violate the respondent’s constitutional right to due process, because a veterinarian would be aware that the conduct at issue in this case was prohibited “unprofessional conduct,” and that, the record shows respondent had notice of the facts and charges that formed the basis of the action taken, which would afford him the opportunity to prepare his defense, and that respondent indeed presented a vigorous defense.

Finally, the court found that the board had the authority to determine whether the respondent’s actions constituted “unprofessional conduct” in the absence of expert testimony. Because the board is an administrative body, whose jurisdiction is limited to particular types of cases, the standard of ordinary care is within the competence of board and did not require expert testimony to make its determination.

Steiner Law Office, of Concord (R. James Steiner on the brief and orally), for the respondent. Joseph A. Foster, attorney general (Francis C. Fredericks Jr., attorney, on the brief and orally), for the New Hampshire Board of Veterinary Medicine.

Constitutional Law
State v. Socchi
No. 2013-182
July 8, 2014
Vacated and remanded
  • Whether the trial court erred when it denied defendant’s motion to suppress because the evidence, which led to his convictions of manufacturing a controlled drug and possession of controlled drug with intent to sell, was obtained from an unlawful search of his property, and a subsequent consent to search that was given was involuntarily and/or tainted by the prior unlawful search
The trial court denied the defendant’s motion to suppress evidence citing the defendant’s driveway as “semi-private” and thus “not deserving of traditional curtilage protection;” that the defendant had no reasonable expectation of privacy in the exterior of his garage; and that the defendant’s consent to search “was given freely, knowingly, and voluntarily.”

The defendant argued on appeal that the officers’ initial, warrantless search of the exterior of his garage violated his state and federal constitutional rights to be free from unreasonable searches and seizures under Part 1, Article 19 of the New Hampshire Constitution and the Fourth Amendment of the US Constitution, and that this unlawful search tainted consent that he later provided to search his property.

The defendant further argued that even if the garage search was lawful, the totality of the circumstances would show that his consent to search the premises was coerced and was not given freely, knowingly and voluntarily.

The state asserted that the defendant’s consent to search his residence was given freely, knowingly, and voluntarily, and was not tainted by any prior unlawful police activity. The state supported its position by arguing that the defendant was confronted only with the evidence of the strong odor of fresh marijuana, which [the police] lawfully smelled from the defendant’s driveway, before he gave his consent to search. The state maintained that the “lawfully smelled odor” was detected during the first of “two distinct searches,” when one of the officers stepped out of his vehicle, which was “parked on a paved portion of the driveway between the defendant’s home and his garage” and constituted direct access to the defendant’s house, and smelled a strong odor of fresh marijuana. The state contended that this first search was not violative of either Part I, Article 19 of the New Hampshire Constitution nor the Fourth Amendment to the US Constitution.

The state argued that a second search occurred when one of the officers “proceeded to walk toward Defendant’s garage” and made visual “observations from the area around [the] garage.” The state did not contend that this search was lawful but concluded that even if the observations made during this second search were unconstitutional, the defendant’s consent was not tainted, because his consent was not obtained by exploitation of the unlawful search and any taint of that search was purged. The state also argued that “[t]he totality of the circumstances establishes that Defendant gave free, knowing, and voluntary consent to search his residence.”

The court focused on the so-called “second search” where the officers approached the garage and inspected the exterior, and ruled that the inspection of the exterior of the garage constituted a search under the Fourth Amendment because the search was not explicitly or implicitly permitted by the homeowner and was made without a warrant.

The court then focused on the defendant’s consent to search the premises. The state argued that the officers confronted the defendant solely with the evidence of the smell of marijuana when obtaining his consent and therefore the defendant’s consent was not tainted as fruit of an illegal search.

The court noted that the trial court did not make this finding, and the testimony did not indicate that the officer confronted the defendant with other evidence obtained from observations from outside the garage. The defendant testified that the officer did confront him with evidence from observations outside of the garage, but the trial court did not give this testimony the same weight as the testimony of the officer. The court remanded this issue to the trial court for further clarification.

The defendant also argued that the “totality of the circumstances” demonstrated that his consent was coerced. The court observed that the trial court did not make particularized factual findings with regard to several critical allegations underlying the defendant’s voluntariness argument, nor did it consider any impact the illegal search had on the defendant’s consent.

The court remanded to the trial court to determine whether the defendant gave his consent voluntarily.

Joseph A. Foster & John J. Kennedy, attorney, on the brief and orally, for the state. Theodore M. Lothstein, Lothstein Guerriero, on the brief and orally, for the defendant.

Criminal Law
The State of New Hampshire v. Lisa Collyns
No. 2012-758
July 16, 2014
Reversed and remanded
  • Whether the trial court erred when it convicted the defendant of attempted theft by unauthorized taking
This appeal arose from a conviction for attempted theft by unauthorized taking following a jury trial in Superior Court whereby the defendant was convicted of attempting to sell restaurant equipment that was part of a sales agreement for a restaurant owned by the victim pursuant to RSA 637:2 IV.

The defendant argued on appeal that the state failed provide sufficient evidence to prove the requirements of attempted theft by unauthorized taking because the equipment was not the “property of another” as the victim only had a security interest in the equipment.

The state disagreed and argued that the equipment at issue constituted “property of another” within the meaning of RSA 637:2 IV because the victim “retained more than a security interest in the equipment” in that “she was its rightful owner.”

The court noted that RSA 637:2, IV exempts from the definition of “property of another” “property in possession of the actor” when the other “has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.”

The court examined the agreement entered into between the defendant and the victim and determined that the agreement created a security interest on the equipment within the meaning of the statute. The state averred that the issue of ownership of the equipment was in dispute and that the jury decided correctly.

The court disagreed with the state and ruled that the equipment was in the defendant’s possession, and that the victim had only a security interest in the equipment. Therefore, the evidence was insufficient, as a matter of law, to establish that the defendant attempted to take the “property of another” within the meaning of RSA 637:2, IV.

Joseph A. Foster & Elizabeth C. Woodcock, assistant attorney general, on the brief and orally, for the state. David M. Rothstein, on the brief and orally, for the defendant.

State of New Hampshire v. Heidi Brouilette
No. 2013-25
July 11, 2014
Reversed and remanded with dissent
  • Whether the right to assistance of counsel, due process of law and equal protection under the law require that an indigent defendant, who is not represented by appointed counsel, be provided with funding for necessary services other than counsel; specifically, whether RSA 604-A, which deals with funding for services other than counsel, violates the state and federal constitutions
The court reviewed RSA 604-A de novo in this interlocutory appeal and noted that the trial court appeared to interpret RSA 604-A as allowing a court to approve funding for services other than counsel only if an indigent criminal defendant is represented by appointed counsel.

The majority came to the conclusion that RSA 604-A:6 could not be read as prohibiting a court from authorizing necessary services to indigent criminal defendants who are self-represented, or who have pro bono, reduced-fee, or retained counsel. However, the majority recognized that if a criminal defendant has retained counsel, rather than appointed counsel, that may bear upon the question of whether he or she qualifies as indigent.

Furthermore, the majority emphasized that its opinion is not intended to limit a trial court’s authority to make the inquiry as to whether a criminal defendant is indigent, and whether the services requested are necessary before it approves such a request. The majority declined to address the constitutional question.

DALIANIS, C.J., with whom HICKS, J., joined, dissented with the majority and argued that the trial court did not err in refusing the defendant’s motion. Like the majority, the minority refused to address the constitutional question because it was not fully litigated by the trial court and resulted from an ex parte motion.

Joseph A. Foster and Stephen Fuller, on the brief and orally, for the state. Olivier Sakellarios on the brief and orally, for the defendant. John C. Mooney, of Rocky Point, New York, by brief, as amicus curiae. Andrew R. Schulman and Michael J. Iacopino on the brief, for the New Hampshire Association of Criminal Defense Lawyers, as amicus curiae. Gilles R. Bissonnette on the brief, and Albert E. Scherr by brief, for the New Hampshire Civil Liberties Union, as amicus curiae.

Domestic Law
In re Guardianship of Madelyn B., Nos. 2013-403, 2013-445, & 2013-593
July 2, 2014
Reversed in part; vacated in part; and remanded

Practitioner’s Note: Important statutory interpretation of RSA 168-B:3, I(d).
  • Whether the “holding out” provision’s use of “father” and male pronouns in RSA 168-B:3, I(d) applies equally to mothers and female pronouns.
This appeal from the 10th Circuit Court – Derry Family Division revolves around the continued guardianship of a child conceived by a partner of a same-sex couple. The biological mother of the child entered into an arrangement on March 15, 2002, with her partner, appellant, whereby appellant became the child’s legal guardian. The couple ended their relationship in November 2008 and appellee and the child moved in with appellee’s heterosexual partner, whom she eventually married.

Appellant was allowed visitation and provided child support to the child, and this arrangement continued until February 2013, when appellee stopped cashing child support checks and informed appellant that the child no longer wished to see appellee. Appellee filed a motion on April 2, 2013, to terminate the guardianship of appellant, which the trial court granted 10 days later without a hearing and found that the guardianship was created to provide care for the child in the event appellant could not and that appellee’s husband could fulfill that role.

Appellant attempted to intervene in the pending adoption of the child and filed a verified parenting petition seeking orders on child support and a ruling by the trial court that she was a “parent” of the minor. The trial court denied appellant’s motion to intervene and the subsequent motion for reconsideration. Appellant appealed and argued that the trial court erred when it terminated the guardianship without a hearing or opportunity to conduct discovery; ruled that the legal standard for termination of a guardianship had been satisfied; dismissed her parenting petition; and denied her motion to intervene in the adoption case.

The sole issue that the NH Supreme Court considered on appeal was the trial court’s failure to consider her parenting petition, which appellant characterizes as a dismissal for failure to state a claim upon which relief can be granted.

Appellant argued that the trial court erred in dismissing her parenting petition because she sufficiently alleged a claim under the “holding out” provision in RSA 168-B:3, I(d). The Court reviewed this statute de novo and considered appellant’s argument that even though the statute uses “father” and male pronouns, the court must construe the “holding out” provision to apply to mothers as well.

Noting among other rationales that the Legislature implicitly recognizes “the value of having two parents, rather than one, as a source of both emotional and financial support, especially when the obligation to support the child would otherwise fall to the public,” the court also recognized that presumptions of paternity are driven by the state’s interest in the welfare of the child and the integrity of the family and not biological paternity, meaning that the lack of a biological connection between appellant and the child is not a bar to the application of the holding-out presumption.

The court held that the holding out provision in RSA 168-B:3, I(d) applies equally to women and men, and because of this, appellant stated a claim for presumed parentage under RSA 168-B:3, I(d). The court reversed the trial court’s dismissal of appellant’s verified parenting petition and remanded with directions for the trial court to schedule a prompt hearing on appellant’s request for temporary orders and vacated both the orders for termination of guardianship and the dismissal of motion to intervene.

Gay & Lesbian Advocates & Defenders, of Boston, Mass. (Janson Wu on the brief and orally), and Crusco Law Office, of Bedford (Kysa Crusco on the brief), for the appellant. Joshua L. Gordon, on the brief and orally, for the appellee. Marilyn Billings McNamara, on the brief, for Susan Frelich Appleton & a., as amici curiae. Lawrence M. Edelman and Michele E. Kenney on the brief, and Lambda Legal Defense and Education Fund Inc., of New York, NY (Karen L. Loewy on the brief), for American Academy of 2. Assisted Reproductive Technology Attorneys, American Fertility Association, Reproductive Science Center of New England, New Hampshire Civil Liberties Union, COLAGE, Family Equality Council, Human Rights Campaign, Lambda Legal Defense and Education Fund Inc., National Center for Lesbian Rights, and National Gay and Lesbian Task Force, as amici curiae.

Appeal of Town of Charlestown
No. 2013-317
July 11, 2014
  • Whether the New Hampshire Board of Tax and Land Appeals (BTLA) erred by interpreting RSA 79-A to allow the town to unilaterally reclassify land parcels owned by the taxpayer, TransCanada Hydro Northeast Inc.
Appeal by the Town of Charlestown (town) responding to the New Hampshire Board of Tax and Land Appeals (BTLA) dismissing its petition for reclassification of current use parcels owned by the taxpayer, TransCanada Hydro Northeast Inc.

The court’s de novo review of RSA 79-A showed that the town was not prohibited from reclassifying the taxpayers’ land that does not qualify for current-use status. Because the town possessed the power to reclassify the taxpayer’s land unilaterally under RSA 79-A, the court concluded that the BTLA did not err when it dismissed the town’s petition for reclassification.

Gardner, Fulton & Waugh of Lebanon (Adele M. Fulton and Joshua M. Pantesco on the brief, and Fulton orally), for the Town of Charlestown. Ramsdell Law Firm (Michael D. Ramsdell on the brief and orally), for TransCanada Hydro Northeast Inc.

Real Property
Ettinger v. Pomeroy LLC
No. 2013-354
July 2, 2014
Reversed and remanded
  • Whether the language of the deed in question is clear and unambiguous such that the trial court could interpret the intended meaning from the deed itself without resorting to extrinsic evidence
Appeal from Carroll County Superior Court, which granted summary judgment to the respondents, Pomeroy Limited Partnership (Pomeroy Limited) and The Nature Conservancy (TNC) against the petitioners, Thomas Ettinger, Margaret Ettinger, and Ettinger Family Holdings Inc.

The property dispute involved an easement around Silver Lake in Madison that arose between the petitioners, who owned the servient estate (Lot 4), and the respondents, who owned the dominant estate (Lot 160). The easement in question was first mentioned in a 1930 deed from Rebecca H. Cummings to Logan R. Dickie that conveyed Lot 160 to Dickie. The language of the easement was contained in subsequent deeds, including a conveyance to the respondent, Pomeroy. Respondent Pomeroy deeded land to Respondent TNC in 2010, including a portion of Lot 160, which contained the easement.

Petitioners filed suit and asserted that the easement conveyed to Respondent TNC may benefit only Lot 160, and may not benefit Lot 161 or any of the rest of TNC’s land that may have merged with Lots 160 and 161. Petitioners claim that the easement is overburdened by extension.

The trial court relied on the language of the pertinent deeds, without examining extrinsic evidence, and concluded that although “the easement language in this case presents a close question, it does not prohibit use to access after-acquired abutting parcels.”

The court reviewed the trial court’s decision de novo and focused on whether the language of the 1930 deed is clear and unambiguous, thereby allowing the trial court to interpret the intended meaning from the deed itself, without resorting to extrinsic evidence.

The court ruled that the 1930 deed was ambiguous, and the trial court was unable to rely on the language of the 1930 deed to determine whether the easement was intended to benefit an after-acquired, non-dominant estate.

The court determined that the trial court erred when it relied on the 1930 deed without extrinsic evidence. The court held on remand that the parties were allowed to supplement their summary judgment pleadings to develop the record further and that the trial court could hold an evidentiary hearing, should it decide that one is necessary.

The court did not express an opinion as to which party has the burden to establish that the easement does or does not encompass after-acquired property, because the parties have not yet had an opportunity to litigate the issue.

Hastings Law Office of Fryeburg, Maine (Peter J. Malia Jr. on the brief and orally), for the petitioners. Coughlin, Rainboth, Murphy & Lown of Portsmouth (Kenneth D. Murphy on the brief and orally), for respondent, The Nature Conservancy. Orr & Reno of Concord (Jeremy D. Eggleton), for respondent. Pomeroy Limited Partnership filed no brief.

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