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Bar News - April 20, 2007


NH Supreme Court At-a-Glance: March 2007

By:

CRIMINAL

State v. Michael L. Hammel,   No. 2005-528

March 6, 2007 

Reversed and remanded

 

  • In an habitual motor vehicle offender prosecution, does tattoos-and-scars identification information from the defendant’s criminal record, introduced through the arresting officer, constitute admissible hearsay under either: (1) the Public Records exception, NH R Ev sec. 803(8) or (2) the Business Records exception, NH R Ev sec. 803(6)?

Under the part of the Public Records exception that might colorably apply here, hearsay is admissible if it concerns: “(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases, matters observed by police officers and other law enforcement personnel.”  The State urged the narrowest reading of the “criminal cases” exception-to-the-exception, characterizing the information in question as routine and non-criminal, but the Supreme Court refused to do so.

 

The court also said that characterizing the defendant’s criminal record as a mere business record (and thus making it admissible under that particular exception), would create a “back door” around the strictures of the Public Record exception.

 

The court noted that the State did not argue “harmless error.”

 

FAMILY LAW

 

i/m/o Marie Mannion and Michael Mannion, No. 2006-038

March 6, 2007

Affirmed

 

  • Does a preliminary domestic violence restraining order, one that includes a finding of abuse, constitute either res judicata or collateral estoppel for the purposes of the final divorce decree?
  • Does RSA 461-A:5, III  require that sole parental decision-making responsibility be awarded to the abused parent, where the finding of abuse was made by another family court and then on a preliminary basis only?
  • Is there a “statutory presumption” as to fault grounds for a divorce, under RSA 458:7 ?

 

The court found that the res judicata/collateral estoppel issues were not preserved for appeal, for want of a “contemporaneous and specific objection” or any motion for reconsideration. 

 

As to the sole parental decision-making issue, the trial court is bound by its own decisions only and has broad discretion in determining the facts and the best interests of the child, so long as there is “an objective basis to sustain the trial court’s discretionary judgment”.

 

Finally, whether the irremediable breakdown of the marriage was caused by irreconcilable differences or by the respondent’s misconduct was a factual question for the trial court.

 

PROFESSIONAL CONDUCT

 

Coddington’s Case, No. LD-2005-009

March 8, 2007

Respondent further suspended

 

  • Where the respondent, a new attorney, left earned fees in the client trust account after they were earned and then episodically withdrew those earned fees to pay himself directly and to pay office expenses directly, but did not commit any willful and knowing violation of trust fund rules, and where    in the words of one witness    he acted like “a deer in the headlights” upon learning of the violations (i.e., did not originally respond to the committee’s petition and did not otherwise object, but now asks for reconsideration), is suspension warranted?

 

Yes.  Since the court judges each attorney discipline case on its own facts and circumstances, there is a marbled and detailed analysis here of the applicable rules as applied to the particular facts. 

 

In addition to the 2 ½ years of suspension already undergone by the respondent, an additional two years is ordered, with conditions.  The court’s opinion notes that: (1) one witness testified that the respondent had “no idea how to keep a bank account” and that (2) the one client whose funds were improperly taken has been fully reimbursed in the amount of $39.60.  Incidentally, the court notes that a failure to respond to the committee’s petition is, in itself, a violation of the rules. 

 

In other words, behold once again the “third rail” of legal practice.  If you touch it, you die.

 

FAMILY LAW

 

In re Father 2006-360, No. 2006-360

March 16, 2007

Affirmed

 

  • In abuse/neglect proceedings under RSA 169-C, is an indigent, pro se, non-accused, non-household, non-custodial father    one who has now been ordered to partially reimburse the State for the care of his child  and who has been found in contempt for failure to do so    entitled to the assignment of counsel either in the adjudicatory phase or the “Bill F” hearing phase or other phase, if at all?

 

No.  The court analyzes the father’s private interests at risk here, and concludes that, because inter alia the State has the burden of proof and because the technical rules of evidence do not apply in these non-jury proceedings, the NH State constitution does not require appoint of counsel for parents in the situation of the father here in RSA 169-C proceedings.

 

REAL PROPERTY

 

NH Department of Environmental Services v. Richard A. Mottolo, No. 2006-363

March 6, 2007

Affirmed in part, vacated in part and remanded

 

  • Where NH DES has applied for preliminary and final injunctions to force a bankrupted, waste-dumping and land-owning defendant to apply for a groundwater management permit, under RSA 485-A:13 [2001], and a preliminary hearing has been held, and a scheduling order has been entered by the trial court, may the court then issue an order consolidating the preliminary and final hearings, under Superior Court Rule 161(b)(2) ?

 

Yes, but only if the trial court gives “clear and unambiguous notice of its intent to consolidate the proceedings”, with sufficient opportunity to the parties to object and to be heard.  The trial court’s putative “implicit intent” will not suffice to give such notice.  Chief Justice Brock’s dissent in a 1999 case is vindicated here.  Also, mere violation of this statute may suffice for the irreparable harm usually required for a temporary injunction.

 

CRIMINAL

 

State v. Darin A. Parker, No. 2005-859

March 16, 2007

Reversed in part, vacated in part and remanded

 

  • In a second degree murder case, where the defendant was sentenced to 25 years to life, “stand committed”, with seven years of that sentence deferred, is the present deferral hearing a continuation of the original sentencing hearing (and thus a “critical” stage, requiring appointment of counsel) or is it a post-sentencing hearing ?

 

Under the particular language of the sentence that was imposed in 1990 (Dunn, J.), and its arguable ambiguity, judicial prudence now requires that any current proceedings regarding the deferred portion of this sentence be viewed as constituting a delayed portion of the original sentencing hearing.  Accordingly, appointment of counsel is required under the procedural facts of this case.

 

CONTRACTS/Employment

 

Syncom Industries Inc v. Eldon Wood, et al., No. 2005-126

March 16, 2007

Affirmed in part, reversed in part, vacated in part and remanded

 

  • In an action to enforce non-compete provisions of an employment contract, was a ban on solicitation of “any customers in any area serviced by [plaintiff]” overly broad ?

 

Yes.  The defendants appealed the trial court’s award of injunctive relief, compensatory ($1.1m) and enhanced damages ($.25m) and attorney’s fees ($100k) on claims of breach of contract, breach of fiduciary duty, and loss of business reputation and goodwill.  Noting that restrictive covenants are not favored at law, the court here applied a three-prong test to the restrictions: (1) were they greater than necessary, (2) did they impose undue hardship on the employee and (3) were they contrary to the public interest?  Citing cases, the court said that “the legitimate interests an employer may protect with a restrictive covenant must be direct and concrete rather than attenuated and speculative” and noted in passing that the trial court could consider reformation of the language of this contract.

 

At one point the court noted that certain trial evidence was not included in the appellate record, so that the court “must assume that the evidence was sufficient to support the result reached by the trial court”.

 

ZONING/Land Use

 

Malachy Glen Associates v. Town of Chichester, No. 2004-886 and 2006-111

March 20, 2007

Affirmed

 

  • After a land use appeal hearing, may the Superior Court simply order the ZBA to allow a variance?

 

Yes.  In this case and in the absence of a wetlands ordinance, the applicant got Planning Board approval for a self-storage facility on the Dover Road (Route 4/Route 9) in Chichester, then recorded it.  After the wetlands ordinance was adopted, applicant was denied a ZBA variance.  After a Superior Court remand to apply the right legal standard, another appeal yielded a court finding that the ZBA had failed to consider the evidence and a court order to the ZBA to allow the variance.  This appeal by the ZBA followed.

 

After a detailed analysis of salient portions of land use case law here, the court noted that “remand is unnecessary when the record reveals that a reasonable fact finder necessarily would have reached a certain conclusion. “ (Simpson, 2006)

 

CONTRACT/Promissory Notes

 

Premier Capital LLC v. Nickolas Skaltsis, No. 2005-441

March 30, 2007

Affirmed

 

  • Does the three-year or the twenty-year statute of limitations apply to the underlying note when the mortgage has been already been foreclosed on?
  • Is particular language required, in order to make an effective assignment of a note?

 

Following an interesting review of the applicable statutes and its own decisions, the court says that foreclosure under a mortgage does not change the statute of limitations applicable to the underlying note, so long as there has not been full payment.  In a discussion of laches, the court notes that “When the delay in bringing the suit is less than the applicable statute of limitation period, laches will constitute a bar to suit only if the delay was unreasonable and prejudicial.”

 

Regardless of the language used in assignments, the intent of the assignor to assign and of the assignee to receive is controlling.

 

FAMILY LAW/Guardianships

 

In re Guardianship of R.A., No. 2006-104

March 20, 2007

Affirmed in part; moot in part

 

  • Did a guardian (first appointed in 1998) have authority under RSA 464-A:25 to admit the petitioner to NH Hospital’s psychiatric ward and to consent to medication in November 2005, where there had been no fifth-year judicial review of the appointment?

 

Subparagraph (a) of the law in effect at the time clearly authorized the guardian to admit petitioner to NHH.  Only subparagraph (c), dealing with the authority of the guardian to consent to or to approve “medical or other professional care” required a review of the guardian’s authority every five years.

 

The law in question has been changed in the meantime, calling now for annual reports to the court.  Judicial review of those annual reports will include a review of the guardianship.  Because the issue of whether the guardian had authority to make medical decisions for petitioner in November 2005 will have no bearing on whether the guardian currently has such authority, the issue is moot.

  

CRIMINAL

 

State v. Delvin White, No. 2006-199

March 30, 2007

Reversed and remanded

 

  • Where the defendant supposedly created a misleading impression (in his opening statement and in getting a State witness to admit that she had accused B, another man, of assaulting her on another occasion, but that B had been acquitted, perhaps because the jury had not believed her, and the State then elicited on re-direct that B was acquitted simply because the jury concluded there was not enough evidence), did the defendant “open the door” to the admission of B’s confession? 

As to B’s confession, the court held it was improperly admitted, because the door had not been opened by defendant here, in turn because of the State’s witness’ statement on re-direct that the jury in the other, earlier case had concluded that there was not enough evidence (and not that the jury in the earlier case had necessarily disbelieved her). 

 

The court discusses “curative admissibility” and “specific contradiction” and, in any case, decides that B’s confession was actually testimonial, and therefore subject to confrontational cross-examination.

 

Associate Professor Larry Gillis of Rye teaches paralegal courses online for Kaplan University.  He became an inactive NHBA member in April 2005.  His Web site is http://www.LaurenceJGillis.com.

 

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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