by
Homeowner-plaintiffs Michelle and Robert Russell appealed a superior court order denying their summary judgment motion and granting that of insurer-defendant NGM Insurance Company. On appeal, the homeowners argued the trial court erred when it determined that their homeowners’ insurance policy provided no coverage for the additional living expenses they incurred when they were unable to live in their home because of mold contamination. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Russell NGM Insurance Co." on Justia Law

by
Respondent Arthur Sweatt appealed a circuit court order denying, in relevant part, his motions to reconsider certain orders in his divorce from Patricia Sweatt. He argued the court erred: (1) in denying his motion to abate the divorce; (2) in granting the motion of petitioner Kathleen Paine, administrator of the estate of Patricia Sweatt, to amend by substitution; (3) in distributing the marital property more than six months after the dissolution of the marriage; (4) in finding him, but not Paine, to have been non-compliant with court rules; (5) by denying him due process and equal protection of the law; and (6) in its valuation of the marital real property. Finding no reversible error, the New Hampshire Supreme Court affirmed the circuit court’s judgment. View "In the Matter of Patricia Sweatt & Arthur Sweatt" on Justia Law

by
Defendant Carlos Gonzalez, III appealed his convictions on two counts of aggravated felonious sexual assault, arguing the trial court erred when it vacated the pro hac vice admission of two out-of-state attorneys, thereby depriving him of his right to chosen counsel under Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the Federal Constitution. Because the New Hampshire Supreme Court conclude the trial court sustainably exercised its discretion when it found that its interest in the fair, efficient, and orderly administration of justice outweighed the defendant’s right to counsel of his choice, it affirmed. View "New Hampshire v. Gonzalez" on Justia Law

by
The Nashua School District (District) appealed an order of the New Hampshire Public Employee Labor Relations Board (PELRB) finding that the District committed an unfair labor practice by refusing to bargain with the American Federation of State, County, and Municipal Employees (AFSCME), Council 93, Local 365, Nashua Custodial/Janitorial Staff (Union) concerning the District’s plan to subcontract custodial work at the expiration of the term of the collective bargaining agreement (CBA) between the parties. “Reduced to its essence,” the issue before the New Hampshire Supreme Court in this case was whether its prior decisions in Appeal of City of Nashua Board of Education, 141 N.H. 768 (1997), and Appeal of Hillsboro-Deering School District, 144 N.H. 27 (1999), precluded a public employer from ever unilaterally determining to subcontract work that is performed by Union members under a CBA. The Union, in essence, argued that they did; the District argues that they did not. The Supreme Court agreed with the District, and reversed the Board’s contrary conclusion. View "Appeal of Nashua School District" on Justia Law

by
Defendants Anthony Barnaby and David Caplin were charged with two counts each of first degree and second degree murder in the deaths of two women that occurred in 1988. The State appealed a superior court order that denied in part, its motion to depose certain foreign witnesses pursuant to RSA 517:13 (2007). In 2010, the State reopened its investigation into the murders. As a result of that investigation, a grand jury indicted the defendants on the present charges in 2015. In April 2016, the State moved, pursuant to RSA 517:13, to take video depositions of eleven Canadian residents for potential use at the defendants’ trials. The State maintained that the prospective deponents were material witnesses who could not be compelled to testify at trial and, therefore, video depositions are necessary “to preserve their testimony and ensure a fair trial.” The defendants objected. The court found the State had met its burden of proving that the depositions of one witness in Caplin’s case and one witness in Barnaby’s case were necessary, but that it had failed to demonstrate a necessity for the other depositions. On appeal, the State argued the trial court applied the wrong standard in determining whether the State had met its burden to take the depositions under RSA 517:13, II(a). The New Hampshire Supreme Court concluded that whether a witness resides in a foreign country and is not subject to the jurisdiction of the New Hampshire courts is a factor that can be considered when determining whether a deposition is necessary to preserve the testimony of a witness who is unlikely to be available for trial due to one of the enumerated conditions in RSA 517:13, II(a). Because the trial court did not have the benefit of the Supreme Court’s interpretation of RSA 517:13, II(a) and it was not clear what weight, if any, that the trial court placed upon the fact that these witnesses were not subject to the jurisdiction of the New Hampshire courts, the Supreme Court vacated the trial court’s decision and remanded for consideration of whether the State met its burden pursuant to RSA 517:13, II(a). View "New Hampshire v. Barnaby" on Justia Law

by
In 2013, 15-year-old Sophia Christen attended a carnival operated by defendant Fiesta Shows, Inc. in a fenced-in area of the Ocean State Job Lot parking lot. After Sophia and her friends shared cotton candy, they began searching for a bathroom to wash their sticky hands; the carnival lacked public facilities with running water. The girls decided to leave the carnival and search for a bathroom. Although there were two nearby restaurants located on the same side of Manchester Road as the carnival, the girls decided to cross Manchester Road to go to a Burger King. At the intersection of the Ocean State access road and Manchester Road, the girls found that the pedestrian crossing signal was inoperative, but they decided to cross the road without the walk signal. While crossing the road, Sophia was struck by a vehicle and suffered fatal injuries. Fiesta had contacted the Derry Police Department to arrange for the presence of officers to provide “general public safety” at the carnival. Unlike organizers of other large events in Derry, Fiesta did not instruct the officers to engage in traffic control, pedestrian assistance, or other similar duties. One day after the accident, at the suggestion of the Derry Police Department, Fiesta arranged for additional police coverage to direct traffic and assist with pedestrian crossing on Manchester Road. Two days after the accident, two Fiesta employees reported to a Derry police officer investigating the signal that “they crossed the crosswalk regularly and had never seen the pedestrian crossing signal activate.” Plaintiff Elaine Christen, as administrator of Sophia’s estate, brought a wrongful death action against Fiesta, claiming negligence and also alleging that Fiesta’s conduct was wanton and reckless, entitling her to enhanced compensatory damages. Fiesta successfully moved for summary judgment, asserting that it violated no duty of care owed to Sophia. Plaintiff appealed, but finding no reversible error, the New Hampshire Supreme Court affirmed. View "Christen v. Fiesta Shows, Inc." on Justia Law

by
Plaintiff Daniel Barry appealed a jury verdict in favor of defendants the New Hampshire Department of Health and Human Services (department) and William Fenniman, Jr., the director of the Division of Juvenile Justice Services during the relevant time period. Plaintiff worked as a youth counselor at the Sununu Youth Services Center (SYSC) until defendants terminated him, claiming that he had used excessive force against a youth resident and had failed to file a report regarding the incident. After the Personnel Appeals Board (PAB) reinstated him, plaintiff filed suit at issue here, alleging a claim for wrongful termination against the department, and a claim for interference with plaintiff’s right to freedom of expression under RSA chapter 98-E against the department and Fenniman in his official and individual capacities. On appeal, plaintiff argued the superior court erred when it: (1) declined to give collateral estoppel effect to the PAB’s findings that plaintiff had not used unreasonable or excessive force against the resident or violated SYSC policies; and (2) allowed defendants’ expert to testify regarding the reasonableness of plaintiff’s use of force. Defendants cross-appealed, arguing the superior court erred when it: (1) concluded that an employee protected by state personnel laws and a collective bargaining agreement could bring a claim for wrongful termination; and (2) declined to make factual findings to resolve the defendants’ motion to dismiss upon the ground of sovereign immunity. The New Hampshire Supreme Court affirmed the trial court’s rulings with respect to the issues raised by plaintiff in his appeal. As a result, the Court did not address the issues raised in defendants’ cross-appeal. View "Barry v. New Hampshire Department of Health &Human Services" on Justia Law

by
Defendant Arch Specialty Insurance Company (Arch) appealed multiple superior court orders granting summary judgment to defendants Triage Staffing, Inc. (Triage), Exeter Hospital, Inc. (Exeter), and American Healthcare Services Association (AHSA) on their petitions for declaratory judgment, and denying Arch’s cross-motion for summary judgment. The court ruled that Arch was required to defend and indemnify Triage, Exeter, and AHSA, pursuant to two insurance policies that Arch issued to Triage, for claims asserted against the defendants by patients of Exeter who contracted Hepatitis C (Exeter Patients). On appeal, Arch argued the trial court erred in finding inapplicable certain exclusions found in the insurance policies and in determining that the claims involved multiple occurrences under the policies. After review, the New Hampshire Supreme Court reversed the superior court’s grant of summary judgment in favor of Triage and Exeter regarding Arch’s duty to defend and indemnify them pursuant to the general liability coverage forms; the Court reversed the trial court’s grant of summary judgment in favor of Exeter regarding Arch’s duty to defend and indemnify it pursuant to the umbrella coverage forms; reversed in part and vacated in part the trial court’s grant of summary judgment in favor of Triage regarding Arch’s duty to defend and indemnify it pursuant to the umbrella coverage forms, and remanded all matters to the trial court for further proceedings. View "Massachusetts Bay Insurance Company v. American Healthcare Services Association" on Justia Law

by
Plaintiffs Wayne and Ruth Ross, trustees of the Wayne Ross Revocable Trust and the Ruth Ross Revocable Trust, respectively, appealed a superior court order in favor of defendants Donald Ross and Rossview Farm, LLC (the LLC). Plaintiffs contested findings that the parties entered into a lease for the plaintiffs’ lifetimes and that they had no right to evict the defendants pursuant to RSA 540:2, II(d) or (e) (2007). The trial court found that plaintiffs conceded that a June 23, 2006 document satisfied the statute of frauds because, in their post-trial memorandum, plaintiffs explained their position that the June 23, 2006 document “is a writing signed by all the parties that states the terms of the parties’ agreement. This document satisfies the statute of frauds and governs their relationship.” The “clear” language of the June 23, 2006 document, plaintiffs posited, created a yearly lease. However, plaintiffs also argued in the post-trial memorandum that defendants’ introduction of parol evidence of the parties’ intent to create a perpetual lease violated the statute of frauds because “the intent of the parties to create a perpetual lease must be clear from the face of the document and there must be a document to satisfy the statute of frauds.” Thus, plaintiffs did not concede that the June 23, 2006 document satisfied the statute of frauds for all purposes; instead, they contended that it “satisfies the statute of frauds” if the document was read to create a yearly lease. The New Hampshire Supreme Court vacated and remanded, finding the trial court’s finding that plaintiffs conceded the issue lacked evidentiary support, and concluded plaintiffs did not waive their statute of frauds argument by concession. View "Ross v. Ross" on Justia Law

by
The State appealed a superior court order granting news reporter Nicholas Reid’s (Reid) motion to quash the State’s subpoena compelling him to testify against defendant Carl Gibson. Republican candidate Yvonne Dean-Bailey (Dean-Bailey) was running in a May 19, 2015 special election for State Representative from Rockingham County District 32. On May 14, 2015, the defendant, a volunteer for the opposing Democratic Party candidate, allegedly issued a false press release stating that Dean-Bailey was dropping out of the race. Reid, who was covering the special election as a reporter for the Concord Monitor, received the e-mail with the attached press release and became suspicious because of the form and content of the e-mail and attached file. He contacted a representative of the New Hampshire Republican Party who was unaware of Dean-Bailey withdrawing from the race. Reid then wrote a short article for the May 15, 2015 issue of the newspaper titled “Email claiming Dean-Bailey is conceding called a hoax.” Reid reviewed the metadata of the press release which lead to him finding a way to contact Gibson. Based upon that conversation and his conversations with other sources, Reid wrote a second article published in the Concord Monitor on May 16 under the headline, “Man who sent hoax email from GOP candidate had ‘too many beers’ before ‘prank.’” Defendant was ultimately charged with “False Documents, Names or Endorsements,” attempted voter suppression, and voter suppression. Reid was served with a subpoena requiring him “to testify what [he] know[s] relating to a criminal matter to be heard and tried between the State . . . and Carl Gibson.” Reid moved to quash the subpoena on the ground that it violated his “newsgathering privilege” under Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. On appeal, the State argued that the trial court erred “by expanding the scope of the news-gathering privilege to include non-confidential sources.” Although Reid based his motion to quash upon the ground that it violated his newsgathering privilege under the State and Federal Constitutions, the trial court based its decision solely upon the State Constitution. The New Hampshire Supreme Court held the trial court’s determination was erroneous, and remanded for the trial court to consider, in the first instance, Reid’s federal constitutional claim. View "New Hampshire v. Gibson" on Justia Law