2007 Summer, Pg. 74. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBy Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2007 Summer, Pg. 74.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar JournalSummer 2007, Volume 48, No. 2Annual Survey of New Hampshire LawLex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreIs it possible for an individual's reputation to be so malodorous that even if he is defamed, he is libel-proof? In Thomas v. Telegraph Publishing Co., opinion issued May 1, 2007, this was a question of first impression in New Hampshire and the Court followed other states that have adopted the doctrine which holds that "a convicted criminal may have such a poor reputation that no further damage to it is possible at the time of an otherwise libelous publication."

In a spirited opinion by Justice Duggan, a unanimous Court took a middle ground and adopted an "issue-specific version" of the libel-proof doctrine which operates "to justify dismissal of defamation actions where the substantial criminal record of a libel plaintiff shows as a matter of law he would be unable to recover other than nominal damages."

Having adopted the issue-specific version of the libel-proof doctrine, the Court next considered whether the trial court had properly applied the doctrine in its holding that the plaintiff was libel-proof. It is an understatement to say that the plaintiff's career was less than stellar. He had criminal convictions in New Hampshire, Massachusetts and Texas for offenses ranging from burglary and receiving stolen property to possession of a controlled substance, criminal threatening, disorderly conduct, resisting arrest, and driving while intoxicated, among others. The plaintiff had admitted to some 20 convictions in a 15 year period, and had a habitual criminal record in three states. The New Hampshire Supreme Court, however, reversed the trial court's finding that the plaintiff was libel-proof because it had found that there had been little media attention regarding the plaintiff's prior arrests and convictions. The Court specifically ruled that "publicity is part and parcel of the damage to a reputation necessary to trigger the issue-specific version of the libel-proof plaintiff doctrine. Indeed, it is often the means by which such damage occurs and the most effective evidence of that damage. In other cases where courts have most persuasively applied the doctrine and deemed plaintiffs libel-proof, both the publicity surrounding the crimes and the attendant level of notoriety are quite high."

Under the heading of "What were they thinking?" is the case of Becksted v. Nadeau, opinion issued June 26, 2007, [less than 60 days after oral argument!]. This case involved a contest between some carpenters and a law firm, with the carpenters claiming that the law firm had engaged in deceptive practices under the Consumer Protection Act (CPA), RSA chapter 358-A, (which, interestingly, neither party contested applied to the case). It appears that the carpenters were hired to undertake renovations to the apartment of one of the lawyers who lived above the law firm. Meanwhile, the defendant law firm began representing the carpenters in other legal matters and upon receiving the last invoice from the carpenters, which they contested, the defendant law firm immediately submitted a bill for its services to date. Unfortunately, the lawyer's bill contained a computational error which increased the bill by more than double [What a horror show]. In the ensuing dispute, the defendant lawyers attempted to use their over-inflated bill as a wash against the plaintiff's much larger bill. This dispute then reached the superior court when the plaintiffs brought an action to enforce a mechanic's lien on the defendant's premises and a claim under the CPA for deceit. The trial court dismissed the claim of the plaintiff carpenters by granting a directed verdict on the plaintiff's claim after the plaintiffs' had rested. The lower court found that the plaintiffs had failed to prove that the defendant engaged in deceptive acts and that the plaintiffs failed to produce sufficient evidence they suffered any injuries because the plaintiffs had never paid the erroneous bill.

The defendant law firm's arguments were quickly torpedoed in the Supreme Court, which unanimously concluded "that a rational juror could find that the defendant attempted to deceive the plaintiffs by inflating the legal bill. . . and using that inflated amount to bargain with the plaintiffs." Since this was a motion for a directed verdict, the Court found that "although a rational juror could find that the defendant's actions were not deceitful, a rational juror might also reasonably infer the contrary." Thus, the trial court committed an unsustainable exercise of discretion by granting the defendant's motion for directed verdict. The Supreme Court then went on to affirm its earlier rulings that there is no requirement under the CPA for a claimant to show actual damages and the plaintiffs could be awarded the statutory minimum and attorney's fees. To repeat, "What were they thinking?"

In this day and age, the great constitutional writ of habeas corpus ["hand over the body"] is under heavy attack from both the Congress and the Executive branch and is becoming even more unavailable to many alleged "terrorist suspects" in this post 9/11 era. Sleeper v. Warden, New Hampshire State Prison, opinion issued April 5, 2007, is an instance where a New Hampshire...

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