New Hampshire Law Blog

Auto Manufacturer Liable for Purchase Price for Lemon, not Dealer's Inflated Price

The New Hampshire Supreme Court recently ruled that Daimler Chrysler was not liable for the price on the retail installment contract for a lemon sold to a consumer, but only for the actual purchase price.  (Click here to read decision.)  The car had oil leaking into the cooling system, and was not working properly even after three repair attempts.

The amount on the retail installment contract was artificially high because the dealer added the difference between the amount paid for the trade-in and the amount still owed for the financing on the trade-in vehicle.  This technique was apparently used to allow the financing for the new vehicle to cover the amount remaining due on the old vehicle, after the trade-in allowance was applied.

The Court held that that applicable law did not allow the consumer to recover the inflated price listed on the installment contract because, in essence, the consumer never actually paid that amount.

   

Landlord to Pay $1,000.00 Per Day in Damages

The New Hampshire Supreme Court has held that a landlord who interfered with a Tenant's access to the rented premises was subject to a $1,000.00 per day damage provision under RSA 540-A.  In the case of Simpson v. Young, the Court determined that the landlord had interfered with the tenant's access to the premises for 34 days, and, therefore, may be entitled to $34,000.00 in damages. 

The law cited by the Court states, in part, "Each day that a violation continues shall constitute a second violation."  Because RSA 540-A violations incorporate the remedies in RSA 358-A, the Consumer Protection Act, the Court used the $1,000.00 damage amount established in RSA 358-A:10. 

Both landlords and tenants should be familiar with these NH laws.  Clearly, there are substantial possible consequences which should be carefully considered before landlords or tenants take certain actions related to the tenancy.

U.S. Supreme Court Upholds Workers' Rights

The United States Supreme Court recently held that, under certain circumstances, employees who complain about sexual harassment and other discrimination may be awarded damages if their employers punish them for doing so, according to the Washinton Post.  (Click here to read article.)

This is an important decision for workers who might otherwise be fearful or hesitant to complain about harassment or discrimination due to the possibility of punishment by an employer for doing so.  The Court made it clearer what actions by an employer amount to retaliation against an employee, and appeared to make it easier for workers to vindicate their rights in court. 

One Legislator Wants to Usurp Court's Traditional Role

One legislator has sponsored a proposed Constitutional Amendment this year (2006) to give the legislature the power to override the rules that govern court procedures.  CACR 0036 was introduced this session by Rep. J. Wheeler, and it is introduced as a Consitutional Amendment instead of a bill because any bill trying to change the checks and balances of our government so radically would violate our state constitution. 

Currently, the state Judicial Branch has the constitutional authority to make the rules that control how the courts actually work.  The rules have developed over a very long period of NH history, and they are based on the practical realities faces by pro se litigants, lawyers, judges and others involved with the courts over many years.  The notion of Separation of Powers between the three branches of government (executive, legislative and judicial) requires that the courts not be under the thumb of the very body whose laws the courts must review and rule upon.

If the legislature has the authority to control the rules that govern the state courts, there will, practically speaking, be almost no judicial independence.  In essence, the courts will be controlled by the whim of the individual legislators who may happen to have a case pending or a grudge against a particular judge.  Furthermore, allowing a body of over 400 legislators to create the rules governing court procedure, when most of those legislators are unfamiliar with court procedures, would throw the court system into chaos, making an already crowded and slow-moving court system even slower and more difficult to access. 

The control over the rules governing the courts belongs with the courts and should remain with the courts.  This American tradition should not be overturned as a result of the personal views of a few disgruntled individuals.

Disputes With Homebuilders - A New Law

On January 1, 2006, New Hampshire HB 469,  goes into effect.  This new law will regulate disputes between homeowners and building contractors relative to residential construction defects.  The law essentially provides for a process in which homeowners and builders may attempt to resolve disputes over alleged construction defects before going to court.

Under this law, homeowners will be required to provide notice to builders of the alleged defects before filiing suit, and all evidence in their possession which relates to the defects.  The builder is then given the opportunity to react to this notice, and may do so in a number of ways.   

The bill originally included a clause that required homeowners to allow builders to come into their home to inspect after a notice of defect was provided.  However, such a requirement was not included in the final version. 

It remains to be seen just how this law will affect homeowners' and builders' rights, but the main gist appears to be to provide an outline for the parties to attempt to avoid the adverse aspects of litigation.  The law is fairly detailed, and should be carefully reviewed in any such cases.

Manufactured Housing Board Posts Orders on the Web

When the owner of a manufactured home located in a manufactured housing park believes that the park owner has violated his/her rights, the owner may be able to address these issues with the NH Board of Manufactured Housing.  The law over which the Board has jurisdiction (RSA 205-A), and the rules that govern its procedures (Chapter Man.) can be viewed on the Board's website. 

At least some of the Board's orders and related documents are also available to view on the website.  This is helpful because it allows for a better understanding of what kinds of issues come before the Board, and just how the process works.  In some cases, the Board's decisions may provide insight into how RSA 205-A is likely to be applied. 

District Court - Small Claims Mediation

The New Hampshire District Court system recently held its training for the new District Court mediation program.  Attorneys selected to act as mediators for the program were assigned Courts in particular towns for which they were asked to commit to work as mediators for a year.  It is hoped that this program will assist many people in small claims actions to resolve their disputes at the courthouse but before having to try their case in front of the judge.  The reason?  Once the judge hears the evidence, the judge controls the outcome.  In mediation, the parties control the outcome and craft the language of an agreement to settle the case.

More on Divorce Mediation

More on the new Mediation law going into effect this fall.  The Nashua Telegraph has an article that basically talks about how the courts are trying to lessen the impact of the divorce process on kids,   keep them from being pawns in the process and make the parents work out an acceptable solution when it comes to custody and visitation.

Source:  Nashua Telegraph

Mediation Gaining Momentum in New Hampshire

My partner, Dave Austin, recently wrote about the new mediation program which will soon be available in certain District Courts in New Hampshire.  Like Dave, I believe that this new program is a good idea.  As a volunteer mediator for the past two years in Superior Court (Alternative Dispute Resolution), I have come to believe that mediation is, more often than not, the best way to resolve disputes that are in litigation.

In addition to the Superior Court ADR program and the District Court's new mediation program, a new law (effective October 1, 2005) in the divorce arena will give the Court power to order mediation in any parental rights and responsibility case unless there has been a finding of domestic violence.  (Click here to view Parental Rights and Responsibility bill)

Of course, the success of these programs remains to be seen, but mediation gives the parties in a case the opportunity to determine the outcome; to have some control over the result.  Such control is something that leaving the decision to a Master, Judge or Jury does not provide.   

District Court Mediation

Mediation has long been part of the Superior Court System here in New Hampshire.  Almost every kind of case will involve mediation.  It doesn't matter whether you are involved in a business dispute, medical malpractice, auto accident or divorce lawsuit.  They all usually have a mediation of some sort.

Now that process will be available to people in District Court. Beginning September 1, parties in District Court can choose to use mediation to try and resolve cases and disputes.  This is a good thing...

It gives people the chance to work out their differences with a mediator and the parties get to decide for themselves if they want to accept the settlement.  This is better because otherwise you have to just take the court's ruling and deal with it.

Read more at TheWMURChannel.com and The Laconia Citizen

New Hampshire Law Library Online

The New Hampshire Law Library is making some of its holdings available online.  You can search New Hampshire statutes, case law (supreme court opinions), legal treatises and journals.

New Hampshire Law Library

Illegal aliens and the right to sue in New Hampshire

Back in March, the New Hampshire Supreme Court answered three questions about an Illegal alien's right to sue for negligence in NH.  In this particular case an illegal alien was injured when an aerial lift tipped over and fell on him.

The first question was whether the person could sue at all in New Hampshire if they suffered a personal injury because of someone's negligence.  The answer...Yes.

The second question was whether that person could recover lost wages despite the fact that they were in the United States illegally.  If the employer knew or should have known that the person was here illegally, then that employer might have to pay.  It is not a "black and white" or "yes or no" answer; it will depend on what the injured person can prove the employer knew.

The third question asked whether the defendant can introduce to the jury that the person is here illegally in order to rebut a lost wages claim.  The Supreme Court allowed that the defendant can put that information into evidence because it is relevant on the issue of lost earnings.

Source:  Rosa v. Partners in Progress, Inc.

US Supreme Court to review New Hampshire Abortion law

WMUR reports that the US Supreme Court will hear an appeal concerning a parental notification law.  The law was struck down by the 1st Circuit Court of Appeals.

The Boston-based 1st U.S. Circuit Court of Appeals said the 2003 law was unconstitutional because it didn't provide an exception to protect the minor's health in the event of a medical emergency ...

The New Hampshire law required that a parent or guardian be notified if an abortion was to be done on a woman under 18. The notification had to be made in person or by certified mail 48 hours before the pregnancy was terminated.

Source:  The WMURChannel.com

What is Mediation?

In the New Hampshire Superior Courts, parties in a civil matter are given the opportunity to resolve the dispute through mediation and, therefore, avoid a trial.  Often, this process allows the parties to resolve their dispute themselves through settlement, instead of leaving the decision in the control of a judge or jury. 

Mediation is a process in which the parties (and their attorneys) get together with a third person to try to resolve the conflict, usually long before it goes to trial.  The third person (or mediator) is often called a "neutral" because he/she is a volunteer lawyer, trained to act as an unbiased facilitator.

As a trial lawyer, I am a firm believer in the process of mediation, and I myself am a volunteer mediator.  I find that the process is the one time when the parties to a lawsuit actually sit down and listen to the other person's side of the story.  They also get to see some of the evidence that a judge or jury would see, and get a better understanding of the strengths and weaknesses of their own cases. 

Mediation is certainly not the right way to resolve every case, but it does provide an excellent opportunity to save time, money and stress for people who have better things to do than spend time preparing for, and going through, a trial in superior court.   

Commission to look at NH Courts

A 100-member citizens commission, two-thirds of whom are not lawyers, took on the task yesterday of making New Hampshire’s justice system easier to understand, less costly and less traumatic for people with legal problems.

Here's one of the reasons they are doing this:

85 percent of the litigants in the district courts are representing themselves and 40 to 50 percent are fending for themselves in the superior courts.

This is a HUGE number.  I am a big fan of simplifying this system. Information needs to be understandable and the courts have to figure out a way to deal with the large number of people using the court system without lawyers.

Our office does not see very many personal injury claims where people are pro-se (unrepresented).  That is primarily because most of the people involved in Auto Accidents or medical malpractice claims in New Hampshire have insurance of some sort. 

I applaud this commission and look forward to their suggestions.

Source:  The Union Leader

IRAs safe from creditors..

The Supreme Court gave bankrupt Americans another layer of financial protection Monday, ruling that creditors cannot seize their individual retirement accounts.

Two sources:  The Nashua Telegraph
                     Yahoo News

Court Security Task Force Begins Work

A task force set up before the Atlanta court house shooting has begun work on assessing the security situation in New Hampshire Courts.  They estimate that is will take 6 weeks or so to review all the procedures and physical layouts of the State and Federal courts involved.

Source:  Officer.com