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Bar News - March 22, 2017


Supreme Court At-a-Glance

By:

February 2017

Civil Procedure

Petition of Sanjeev Lath & a.
No. LD-2016-0005
February 3, 2017
Petition for writ of certiorari dismissed.

  • Whether petitioners have standing to appeal a determination of the New Hampshire Attorney Discipline Office dismissing their grievance against an attorney

The petitioners sought a writ of certiorari challenging the decisions of the Office of General Counsel of the Attorney Discipline Office (ADO) and its Complaint Screening Committee (CSC). The ADO dismissed their grievance against Attorney John F. Bisson, and the CSC affirmed the ADO’s decision upon petitioners’ request for reconsideration. The Court found that the petitioners lack standing to appeal the disposition of their grievance because a grievant does not have a sufficient personal interest in the outcome of an attorney disciplinary proceeding.

According to the Court, the purposes of attorney discipline are to protect the public and maintain public confidence in the bar. The attorney disciplinary system is not intended as a means of redress for persons claiming that an attorney personally wronged them. A grievant is not a party to a disciplinary proceeding, and his participation is limited to supplying evidence. No personal rights or remedies of a grievant are adjudicated in, or directly affected by, a disciplinary proceeding. A grievant in a disciplinary proceeding is like a victim in a criminal case, whose interest results only from his status as a member of the public. Accordingly, petitioners, as grievants, lack standing to appeal the ADO’s disposition of their grievance.

Sanjeev Lath and Barbara Belware, pro se petitioners. Janet F. DeVito, general counsel (Brian R. Moushegian, deputy general counsel), for the attorney discipline office. Mitchell M. Simon and Joshua M. Wyatt of Devine, Millimet & Branch, for John F. Bisson.


In re Estate of Kathleen Mullin
No. 2016-0177
February 15, 2017
Affirmed.

  • Whether New Hampshire has exclusive jurisdiction over claims related to an intestate decedent’s property contained in a trust established in California
  • Whether a California choice of law provision of a trust controls claims regarding trust property involved in a New Hampshire probate proceeding
  • Whether California is the most convenient forum for litigating issues related to property in a trust established in California

The decedent died intestate while domiciled in New Hampshire. The decedent was the beneficiary of a trust into which she had transferred all of her real property and some of her personal property while she and all of the trust beneficiaries resided in California. The trust contained a choice of law provision that stated that “the laws of the State of California . . . shall govern the validity, construction, and administration of the Trust, except that all matters relating to real property shall be governed by the laws of the situs of that real property.”

The appellant, the estate administrator, sought a declaratory judgment requesting, among other things, that the New Hampshire circuit court declare it had exclusive jurisdiction to determine all claims to title of decedent’s property. The appellee, the trustee of the trust, argued that claims concerning the validity of decedent’s transfers of property into the trust should be determined by a court in California pursuant to California law, with the exception of the New Hampshire real estate contained in the trust, which could be determined by a California court using New Hampshire law. The circuit court denied appellant’s declaratory judgment and ruled that New Hampshire did not have exclusive jurisdiction to consider claims regarding the decedent’s property, that California law applied to claims regarding all of the decedent’s trust property except the New Hampshire real estate, and that the state of California was a more convenient forum for adjudicating claims over the decedent’s property. The New Hampshire Supreme Court affirmed the circuit court’s rulings.

Upon affirming the circuit court, the Supreme Court first held that merely because New Hampshire has jurisdiction to probate an estate, does not mean that jurisdiction is exclusive or required. While New Hampshire has a strong public policy favoring the expeditious settlement of the estates of its residents, there is an equally strong policy favoring the orderly administration of trusts. The Court declined to adopt the first-to-the-courthouse rationale when there is concurrent jurisdiction in a probate matter, and held that California had jurisdiction to determine what property belonged in the trust that was established in California.

Next the Court held that the California choice of law provision in the trust was controlling, and that based upon the explicit terms of the provision, the decedent intended for the law of California to apply to the trust property. The Court was unpersuaded by the appellant’s argument that the language of the provision did not give California jurisdiction in cases involving a third party (i.e., the decedent’s estate). Rather, the Court concluded that the term “validity” found in the choice of law provision could encompass, among other things, questions relating to the transfer of property into the trust, over which California law would govern.

Finally the Supreme Court found that the record supported the circuit court’s conclusion that California was the more convenient forum for litigating the validity of the decedent’s transfer of assets into the trust. California was a more convenient forum than New Hampshire because the evidence and witnesses were more easily available there; the decedent had lived in California for many years prior to her death; the decedent used the services of a California attorney and a California financial advisor with respect to her property; the trust was created in California; and the trustee and all three heirs-at-law, including the appellant, were residents of California.

Pamela J. Newkirk (on the brief and orally) and Laura T. Tetrault (on the brief) of Barradale, O’Connell, Newkirk & Dwyer, for the appellant. Henry R. Klementowicz (on the brief and orally) and Ralph F. Holmes (on the brief) of McLane Middleton, for the appellee.


Contract Law

Holloway Automotive Group v. Steven Giacalone
No. 2016-0141
February 15, 2017
Reversed and remanded.

  • Whether a liquidated damages clause in an agreement for the sale of a vehicle is enforceable

The defendant purchased a car from the plaintiff. At the time of the purchase, the defendant signed an agreement providing that if he exported the car within one year of purchase, he would have to pay the plaintiff $15,000 as liquidated damages. The defendant subsequently exported the vehicle within one year, and the plaintiff sued him for breach of contract seeking the liquidated damages.

The trial court found that the parties’ agreement on liquidated damages was entered into for the purpose of protecting the plaintiff from a claim by its franchisor, which would charge the plaintiff for each vehicle exported within one year of sale. The franchisor, however, did not charge the plaintiff any fees in association with the exported vehicle, and as such, the trial court ruled that the plaintiff did not have any damages with respect thereto. The trial court also found that the plaintiff’s other claims to damages resulting from the export were “wild guesses,” including the plaintiff’s claim to loss of income from maintaining and servicing the exported vehicle, future sales of additional vehicles, warranty work, resale, financing, and the detriment to the rating and ranking of the dealership. Accordingly, the trial court found that the plaintiff had no actual losses and therefore declined to enforce the liquidated damages provision.

The Supreme Court reversed the trial court’s decision, finding that pursuant to the common law test for permissible liquidated damages, the plaintiff’s damages were not easily ascertainable. The Court underscored the trial court’s acknowledgement that the plaintiff’s damages were speculative. Therefore, “faced with the very uncertainty the parties initially sought to avoid, a court should fix damages at the figure to which the parties initially agreed and enforce the liquidated amount,” regardless of the amount of damages plaintiff had actually suffered at the time of trial.

Upon examination of the contract language, the Court further found that the parties’ agreement did not intend to limit the plaintiff’s damages only to charges imposed by the franchisor, and that damages were not limited to those incurred within the one year export period. Similarly, the Court found inapposite a New Hampshire statute, RSA 357-C:5, which generally prohibits a franchisor from taking adverse action against a vehicle seller when a vehicle is exported. The statute is inapplicable here because it does not prohibit a franchisor’s adverse action in every case of vehicle exportation, and the plaintiff still could have been subject to the franchisor’s penalty in this case.

The parties did not dispute that the other criteria permitting liquidated damages were met, and therefore the Court held that the liquidated damages clause was enforceable. And, because the parties’ agreement provided that the plaintiff was entitled to attorneys’ fees and costs in the event the plaintiff was entitled to judgment for liquidated damages, the Court remanded the case to the trial court for a determination of attorneys’ fees and costs in favor of the plaintiff.

Bradley M. Lown of Coughlin, Rainboth, Murphy & Lown, for the plaintiff. R. Matthew Cairns (on the brief and orally) and Lisa M. Lee (on the brief) of Gallagher, Callahan & Gartrell, for the defendant.


Criminal Law

State v. Robert Breest
No. 2015-0524
February 17, 2017
Affirmed.

  • Whether the trial court properly denied the defendant’s motion for a new trial based on new DNA evidence
  • Whether the trial court properly excluded non-DNA evidence the defendant proffered during his motion for a new trial

The defendant was convicted of murdering Susan Randall in 1973. Since the year 2000, the defendant obtained multiple rounds of DNA testing on the victim’s fingernail clippings. The most recent testing revealed that the victim’s fingernails contained DNA material from an unidentified male contributor. The defendant moved for a new trial based on the most recent test results. At the hearing on the motion, the State sought to exclude non-DNA evidence the defendant proffered that was not presented at the original trial. The Superior Court granted the State’s motion and ultimately denied the defendant’s motion for a new trial, finding that the defendant failed to sustain his burden of proving that the new DNA evidence would probably result in an acquittal.

In affirming the trial court, the Supreme Court first found that the statute governing post-conviction DNA testing, RSA 651-D:2, VI(b), requires only a hearing if DNA test results are favorable, and directs a court to enter any order that serves the interest of justice. Thus, in certain circumstances, the statute provides no relief other than the hearing itself. The Court rejected the defendant’s interpretation of the language of the statute, which he claimed permitted him a new trial if he could show simply that there would be a hung jury upon retrial with the new evidence. According to the defendant, he did not have to meet the acquittal standard the trial court applied. The Court, however, held that the trial court’s denial of the defendant’s motion for a new trial was permissible because the statute provides that a court may, but is not required, to order a new trial in the interest of justice.

The Court further found that the trial court did not err in ruling that the defendant’s showing of the probability of a hung jury on retrial was insufficient to meet the defendant’s burden for obtaining a new trial based on the pertinent standard articulated in the Cossette case. The defendant contended that the new evidence need only result in a hung jury under the third prong of the standard, which requires that the new evidence be of “such a character that a different result will probably be reached upon another trial.” Upon reviewing New Hampshire case law and Black’s Law Dictionary, however, the Court found that the world “result” is the equivalent of the word “verdict,” and that a hung jury is not a “verdict,” which is, therefore, not a “result” meriting a new trial under the Cossette standard.

The Court also upheld the trial court’s exclusion from the hearing the defendant’s newly proffered non-DNA evidence. The Court held that the legislature did not intend to expand the scope of the hearing required by RSA 651-D:2, VI(b) to consider the potential impact of non-DNA evidence. The statute refers only to DNA evidence, and does not mention non-DNA evidence. According to the Court, the statute creates a unique mechanism for a defendant to obtain relief based upon new DNA evidence only, and the conditions imposed by the statute should be strictly observed.

Finally, the Court upheld the trial court’s ruling that the new DNA test results did not warrant a new trial. Contrary to the defendant’s argument, the evidence presented at the hearing did not point definitively to the conclusion that the second DNA profile arose from another assailant. There was ample support for the trial court’s finding that the other DNA could have resulted from contamination or the victim’s casual contact with another person. In fact, the DNA evidence was more inculpatory than exculpatory, particularly in light of the original trial evidence, and therefore the trial court’s conclusion thereon was not clearly unreasonable or contrary to the weight of the evidence.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally, and John J. Kennedy, assistant attorney general, on the brief), for the State. Ian M. Dumain (on the brief and orally) of Boies, Schiller & Flexner, and Albert E. Scherr (on the brief) of Concord, for the defendant. Louis W. Tompros, Dino L. LaVerghetta, Richard A. Crudo, and Catherine Owens of Wilmer Cutler Pickering Hale & Dorr, and Andru H. Volinsky of Bernstein, Shur, Sawyer & Nelson, for The Innocence Project as amicus curiae.


Alberto Ramos v. Warden, New Hampshire State Prison
No. 2015-0609
February 17, 2017
Affirmed.

  • Whether trial counsel’s failure to advise the defendant before his plea of the potential for an interstate prison transfer constituted ineffective assistance of counsel

The petitioner in this case appealed a Superior Court order dismissing his ineffective assistance of counsel claim wherein he asserted that his trial counsel failed to inform him, prior to pleading guilty to felony charges, that he could be transferred to a prison in another state. The Supreme Court upheld the Superior Court’s order, holding that, as a matter of law, an interstate prison transfer is a collateral consequence of a guilty plea. As such, counsel’s failure to advise a defendant of a transfer does not constitute ineffective assistance under the federal or state constitutions.

In so holding, the Court disagreed with the defendant’s argument that the trial court erred by examining whether counsel’s failure to inform him of a transfer was direct or collateral consequence of a plea. The Court distinguished on various grounds the cases the defendant offered in support of his argument, and held that the direct-collateral distinction test applies to ineffective assistance of counsel cases. Accordingly, where counsel fails to advise a defendant on a collateral consequence of his guilty plea, as opposed to failing to advise on a direct consequence to a plea, a defendant does not have a claim for ineffective assistance of counsel.

Thomas Barnard, senior assistant appellate defender, for the petitioner. Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general), for the State.


Employment Law

Beverly A. Cluff-Landry v. Roman Catholic Bishop of Manchester
No. 2016-0122
February 24, 2017
Affirmed.

  • Whether the trial court properly dismissed the plaintiff’s whistleblower claim because she did not report what she reasonably believed to be a violation of a law
  • Whether the trial court properly dismissed the plaintiff’s wrongful discharge claim because it was time-barred
  • Whether the trial court properly dismissed the plaintiff’s slander claim because the slander was invited by the plaintiff

The plaintiff in this case was a pre-kindergarten teacher and teacher of visual arts at St. Christopher’s School. The plaintiff sued the defendant, alleging: (1) the school violated the New Hampshire Whistleblowers’ Protection Act (Whistleblower’s Act) because it did not renew her contract after she reported to her superiors violations of school and public policies concerning the school’s alleged failure to address a student’s repeatedly violent behavior; (2) wrongful discharge; and (3) slander, based upon the school principal’s comments to an agency checking the plaintiff’s employment references. The Superior Court granted the defendant’s motion to dismiss each of the plaintiff’s claims, and the Supreme Court affirmed.

The Court first held that the school did not violate the Whistleblower’s Act because the plaintiff did not report what she reasonably believed to be a violation of a “law or rule” as required by the statute. Rather, the plaintiff reported violations of the school’s policies and procedures, as well as violations of other public policies, such as assault. With respect to the assault complaint, the Court found that a reasonable employer would not have understood her complaint to constitute a report that the preschool child in this case had violated the simple assault statute. The Court similarly rejected the plaintiff’s argument that she reasonably believed she was reporting violations of safety, workers compensation, employment, and other pertinent law because the plaintiff never alleged that the preschooler at issue jeopardized her safety or the safety of other employees. Because the plaintiff’s whistleblower claim was specifically based upon violations of the school’s internal policies instead of a “law or rule,” the Court held that she did not engage in an act protected by the Whistleblower’s Act.

The Court next held that the plaintiff’s wrongful discharge was time-barred by the three-year statute of limitations. The plaintiff argued that her cause of action did not begin to accrue until at least June 15, 2012 when she was separated from work, and therefore she timely filed her complaint on May 15, 2015. The Court, however, found that the plaintiff’s cause of action began to accrue on April 15, 2012. This was the date the defendant notified the plaintiff of its decision not to renew her contract, which was the basis of her claim. It was at this point that the plaintiff had reason to know her discharge was allegedly made in bad faith, and all of the elements necessary for her claim were present. Accordingly, the plaintiff’s May 15, 2015 filing occurred one month beyond the statute of limitations.

Finally, the Court affirmed the trial court’s dismissal of the plaintiff’s slander claim because it was “invited defamation,” which is not actionable. Specifically, the plaintiff’s slander claim was based on a communication the defendant made to a reference checking service that the plaintiff hired apparently to manage her professional reputation. According to the Court, a plaintiff may not bring a claim for slander when she procures the very statements that form the basis of the claim. In so holding, the Court rejected as speculation the plaintiff’s argument that it was likely that the defendant made similar statements to others, and should be liable for slander on that basis as well. The Court, however, held that a slander claim is insufficient where the complaint fails to state where and to whom the slander was published.

Leslie H. Johnson (on the brief and orally) of the Law Office of Leslie H. Johnson and Ellen Purcell (on the brief) for the plaintiff. Peter G. Callaghan (on the brief and orally) and Gregory L. Silverman (on the brief) of Preti, Flaherty, Beliveau & Pachios, for the defendant.


Right-to-Know Law

Jeffrey Thomas Clay v. City of Dover & a.
No. 2016-0169
February 24, 2017
Reversed.

  • Whether completed rubric forms used by a superintendent search committee must be disclosed pursuant to New Hampshire Right-to-Know Law

The plaintiff in this case sought disclosure, pursuant to the New Hampshire Right-to-Know Law, of the written rubric forms that members of the defendants’ school superintendent search committee completed when evaluating applicants for the superintendent position. The forms contained twelve categories by which the committee members ranked a candidate on a scale of 1-4. For six of those categories, the form explained how committee members must score applicants. The forms provided no scoring instruction for the remaining six categories. Some of the forms contained a search committee member’s handwritten or typewritten comments about an applicant.

The Superior Court ordered the defendants to disclose the forms, ruling that the forms were not exempt from the New Hampshire Right-to-Know law. The Supreme Court reversed the trial court, holding that the forms are exempt from disclosure under the New Hampshire Right-to-Know Law as records pertaining to “internal personnel practices.”

In making its determination, the Court first referred to its recent opinion, Reid v. New Hampshire Attorney General, in which it discussed the “internal personnel practices” exemption under the Right-to-Know Law. In Reid, the Court found that the term “‘personnel” refers to human resources matters, including hiring, firing, work rules, discipline, compensation, and benefits. According to the Court, the completed rubric forms in this case relate to hiring, which is a classic human resources function, and is necessarily a “personnel practice.”

The Court then found that the completed rubric forms were “internal” within the meaning of the Right-to-Know Law. The Court again referred to its Reid opinion wherein it concluded that the word “internal” means practices that exists within the limits of employment. Here, the completed rubric forms are “internal” because they were completed by members of the superintendent search committee on behalf of the school board, which is the entity that employs the superintendent. In so finding, the Court rejected the plaintiff’s argument that the completed forms do not pertain to “internal” personnel practices because there was no employment relationship between an applicant and the school board. The Court found immaterial that there was no such employment relationship because this case involved issues related to hiring. The information provided on the forms was gathered in the course of a hiring process that was internal to the search committee and conducted on behalf of the superintendent’s future employer. Because the completed forms pertained to “internal personnel practices,” they were, therefore, exempt from disclosure under the New Hampshire Right-to-Know Law.

Jared Bedrick of the Law Offices of Stephen C. Brown and Associates, for the plaintiff. Anthony I. Blenkinsop, city attorney, for the defendants. Stephen C. Buckley and Margaret M.L. Byrnes of the New Hampshire Municipal Association, as amicus curiae. Theodore E. Comstock and Barrett M. Christina of the New Hampshire School Boards Association, as amicus curiae.


Workers Compensation

Appeal of Jason Malo
No. 2016-0038
February 17, 2017
Affirmed.

  • Whether the New Hampshire Compensation Appeals Board properly reduced the rate of appellant’s indemnity benefits

In this case, the Supreme Court affirmed a decision of the New Hampshire Compensation Appeals Board (CAB) reducing the appellant’s indemnity benefits from the temporary total disability rate to the diminished earning capacity rate. Specifically, the Court first found that there was sufficient medical evidence to support the CAB’s conclusion that the appellant’s physical condition had improved. Much of this evidence was based on the “psychological overlay” associated with the appellant’s condition.

Next, the Court determined that there was sufficient evidence to support the CAB’s ruling that the change in the appellant’s physical condition improved his earning capacity, which merited a reduction in his indemnity benefits. In making this determination, the Court reaffirmed its holding from a prior case that evidence of a workers compensation claimant’s work capacity, age, education, and job training is relevant to determine whether a claimant has regained his prior earning capacity, and that a carrier or employer generally does not need to rely upon expert testimony to establish a claimant’s earning capacity. Such evidence in this case, according to the Court, supported the CAB’s determination on earning capacity.

Finally, the Court disagreed with the defendant’s argument that the CAB failed to make specific findings of fact and rulings of law sufficient to allow meaningful appellate review. In response to the defendant’s argument, the Court found that, “although the CAB’s decision is not a paragon of clarity, we conclude that it sets forth specific findings of fact and rulings of law sufficient to permit appellate review.” The CAB’s findings that the defendant was no longer totally disabled; that the defendant had a work release; and that he was eligible for the diminished earning capacity rate of compensation, were sufficient for judicial review.

James F. Lafrance of Normandin, Cheney & O’Neil, for the petitioner. Paul R. Kfoury, Jr. of Trombley & Kfoury, for the respondents.

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