2004 Summer, 64. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBy Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2004 Summer, 64.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

NH Bar JournalSummer 2004, Volume 45, Number 2Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreA little noticed part of many Supreme Court decisions is the standard which the Court uses when the question presented to it is one of statutory interpretation. In law school (at least at the University of Michigan Law School), this area of the law was covered by a course called Legislative Law. A recent case, Remington Investments, Inc. v. Howard, opinion issued March 12, 2004, presents a rare opportunity for a crisp summation of the Court's guidelines when reviewing a statute:

This court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole . . . .In interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning . . . .Where the language of a statute is clear on its face, its meaning is not subject to modification . . . .We will neither consider what the legislature might have said nor add words that it did not see fit to include . . . .Unless we find that the statutory language is ambiguous, we need not look to legislative intent . . . .We review the trial court's interpretation of a statute de novo.

The Court had before it RSA 511:55, I relating to real estate attachments which provides that a real estate attachment expires six years from the time of rendering of judgment in the action in favor of the plaintiff on which he can take execution. The plaintiff attachment holder argued that the attachment period be extended because the plaintiff was unable, during a major portion of the six-year period, to execute his attachment because the defendant's bankruptcy proceeding remained open. FAHGETABOUTIT! The Court held that the statute was unambiguous and although the statute did not expressly prohibit the extension of the period of attachment, "we will neither consider what the legislature might have said nor add words that it did not see fit to include."

The very extensive reach of New Hampshire's long-arm jurisdiction statute was well demonstrated in The Lyme Timber Company v. DSF Investors LLC, opinion issued February 17, 2004. Here the circumstances showed that the defendant, a Massachusetts limited liability company, engaged in negotiations by mail with the plaintiff, a New Hampshire limited partnership with its principal place of business in New Hampshire, concerning the redevelopment of a Massachusetts factory building. The New Hampshire plaintiff had an office in Massachusetts and a preliminary agreement entitled, "Term Sheet," was signed by the defendant in Massachusetts. All negotiations were by phone, letter or e-mail and the defendant was never physically present here in New Hampshire. The parties fell apart and the defendant brought an action for declaratory judgment over the Term Sheet in Massachusetts. A long time transpired before service of that action was served upon the plaintiff. In the meantime, the plaintiff, without knowledge of the Massachusetts action, brought a New Hampshire action claiming jurisdiction under the New Hampshire long-arm statute for tortious misrepresentation (not an action based on breach of contract). The lower court denied the defendant's motion to dismiss for lack of personal jurisdiction and the Supreme Court agreed in a sweeping, unanimous opinion by Justice Nadeau.

The Court first recognized that the plaintiff bore the burden of demonstrating facts sufficient to establish personal jurisdiction, but it pointed out that the "plaintiff need make only a prima facie showing of jurisdiction facts to defeat a defendant's motion to dismiss." The Court then construed the State's long-arm statute as permitting an exercise of jurisdiction to the extent permissible under the Federal Due Process clause, and held that

[A] court may exercise personal jurisdiction over a non-resident defendant if the defendant has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . .Jurisdiction can be 'general,' where the defendant's contacts with the forum State are 'continuous and systematic,' or 'specific,' where the cause of action arises out of or relates to the defendant's forum-based contacts . . . .In this case, Lyme asserts that specific jurisdiction applies. Where specific contacts with the forum are the basis for personal jurisdiction, whether those contacts are constitutionally sufficient...

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