New Hampshire Bar Journal
2003 December, 11.
Lex Loci: A Survey of New Hampshire Supreme Court Decisions
New Hampshire Bar JournalDecember 2003, Volume 44, Number 4Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreProbably a good start for a review of the recent decisions of our New Hampshire Supreme Court is to start at a beginning. When is a lawsuit commenced, or in the quaint words of the statute of limitations (RSA 508:4), when is an action "brought"? That was the issue before the Court in Donnelly v. Eastman, opinion issued June 30, 2003. It appeared in this case that an inexperienced attorney, prior to the expiration of the three year statute of limitations, completed and executed a writ seeking recovery for tort injuries incurred by his client, the plaintiff, but the writ was not served on the defendant or filed in court until after the expiration of the statute. Under the old rule,(EN1) an action was deemed to be commenced when the writ was completed and signed by the attorney with the intent to serve it on the defendant, but new Superior Court Rule 2, which became effective September 1, 2001, states that "an action shall be deemed commenced on the date of service of the writ, or the date of entry of the writ, whichever event occurs first." The defendant moved to dismiss the plaintiff's action but the superior court judge invoked the newly broadened language of the Preface to the Superior Court Rules which allows a court to waive the application of any of the court rules "[a]s good cause appears and as justice may require." The trial court ruled that since the defendant was not hurt because he already had knowledge of the plaintiff's claim and because the plaintiff's failure to comply with the rule was due to her attorney's inexperience or mistake, justice required waiver of the rule.
This reasoning was rejected by a unanimous Supreme Court which held that the new rule "establishes a bright-line test in contrast to the former common law rule" and under "this approach, writs may be entered with the court either prior to service of process or after service of process." The Court pointed out that even "under the previous common law rule, we strictly adhered to deadlines when assessing compliance with the statute of limitations" and concluded that
In this case, the trial court found that the failure to properly bring the claim was attributable to inexperience and mistake of counsel. Attorneys are responsible for knowing the content of the court rules applicable to their action....Rule 2 was adopted in order to establish a bright-line rule for determining when an action is commenced for purposes of the statute of limitations. We conclude that under the circumstances of this case, neither good cause nor justice supports waiver of Rule 2. Therefore, it was error for the trial court to deny the defendant's motion to dismiss.
Hopefully, the attorney has malpractice insurance from which the plaintiff tort victim can recover her damages.
The issue of the retroactive effect of New Hampshire Supreme Court decisions which announce a new rule of law was before the Court in two unrelated cases, with the Court announcing a new rule concerning the retroactive effect of such significant decisions. Ireland v. Worcester Insurance Company, opinion issued July 1, 2003, and Lee James Enterprises, Inc. v. Northumberland, opinion issued August 1, 2003. The author will treat the two cases as one since they both dealt with the retroactive effect issue, although on completely different facts. In Northumberland, the Court reviewed the historical background of the issue, stating that
[a]t common law, appellate decisions were all presumptively retroactive because, by stating what the law is, the court really stated what the law always was...we have recognized, however, that retroactive application of judicial decisions at times can cause harsh results, when, consistent with the doctrine of stare decisis, parties have relied upon a prior rule of law....Therefore, we have applied our decisions prospectively whenever we thought justice would be better served by doing so.
The Court in Ireland established a new rule concerning the retrospective or prospective effect of the adoption of a new rule of law that the Court would follow in future cases. The Court rejected "selective prospectivity" because, in the words of the U.S. Supreme Court,(EN2) "by picking and choosing from among similarly situated claimants those who will receive the benefit...