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RULES OF THE CIRCUIT COURT OF THE STATE OF NEW HAMPSHIRE -- DISTRICT DIVISION

CIVIL RULES APPLICABLE TO CASES FILED ON OR AFTER THE IMPLEMENTATION OF ELECTRONIC FILING

 

VIII. Judgement

Rule 3.39.    Settlements

(a)  Whenever an attorney, non-attorney representative or self-represented party states orally or in writing to the court that a particular case has been settled and that agreements will be filed, the court shall forthwith notify by mail or through electronic delivery the parties of record or their representatives of such statement, and, if the agreements and/or docket markings are not filed within thirty days after the date of mailing or electronic delivery of such notice, the court shall take such action as justice may require.

(b)  In order that the court may seasonably make up and complete the court’s record, the parties shall seasonably file all papers and documents necessary to make up and enter the judgment and to complete the record of the case and no execution shall issue, or final order or decree be entered, until such papers are filed.

Rule 3.40.    Approval of Settlements: Minors

(a)  All petitions for approval of settlement of actions on behalf of minors shall be signed by the parent, next friend or guardian of the minor.

(b)  Court approval is not required for the settlement of any suit or claim brought on behalf of a minor in which the net amount is equal to or less than $10,000.00. Any settlement of such suit or claim in which the net amount exceeds $10,000.00 shall require court approval.

(c)  In any suit or claim on behalf of a minor if the amount to be paid to the minor before the age of majority exceeds $10,000.00, the court shall require proof in the form of a certified statement from the Circuit Court-Probate Division that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor whether through settlement, judgment, decree or other order, has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19. In the event of a structured settlement where an amount will be paid to the minor both before and after the minor reaches the age of majority, no guardian of the estate of such minor is required if the amount to be paid to the minor before the age of majority is $10,000.00 or less. If the amount to be paid to the minor before the age of majority in such structured settlement exceeds $10,000.00, then a guardian of the estate of such minor is required. In determining whether the net amount of a settlement exceeds $10,000.00, all sums covering attorney’s fees, court costs and other expenses related to the claim including medical expenses are to be excluded.

(d)  The petition shall contain the following information where applicable:

(1)  A brief description of the accident and of all injuries sustained and the age of the minor.
(2)  An itemized statement of all medical expenses and special damages incurred by the minor.
(3)  The total amount of the settlement and whether any bills or expenses are to be paid out of the total settlement or are being paid in addition as part of the parent’s claim. If the parent is being paid anything directly, the petition should contain a statement of the total amount being paid to the parent and a specification of the items covered.
(4)  Whether the settlement was negotiated by counsel actually representing the minor.
(5)  A statement from the attorney or non-attorney representative for the minor as to whether there was medical payment insurance available to the minor and whether or not a claim has been made for said benefits or whether payment has been received.
(6)  A statement from the attorney for the minor as to whether any liens for medical providers have been asserted or are assertable and how the settlement would resolve those liens.
(7)  The net amount to be received on behalf of the minor.
(8)  A request that the settlement be approved.

(e)  The petition must be accompanied with the following material:

(1)  A photocopy of the minor’s birth certificate.
(2)  An itemized statement from counsel detailing the nature of the work performed and the time spent on the case. An attorney’s fee in excess of 25% of the settlement amount will not be ordinarily allowed unless upon good cause shown. In the event that counsel seeks an attorney’s fee in excess of 25%, counsel shall file a motion requesting such an approval which motion shall contain the reasons for the request. A copy of that motion shall be provided to the next friend at least 10 days prior to the hearing or conference relative to approval of the settlement.

(f)  The court will not authorize the next friend to settle the action or authorize the execution of releases and will not make any order respecting indemnity agreements, and the petition should make no such request.

(g)  The court, upon its own motion, may appoint a guardian ad litem to represent the interests of the minor child and/or to review the proposed settlement. The fees of the guardian ad litem shall be paid by defendant.

(h)  The attorney or non-attorney representative, minor, parent, guardian, or next friend, will ordinarily be required to appear in all cases in support of the petition unless attendance has been excused by the court upon prior motion of counsel or upon the court’s review of the file. In all cases where the minor has not actually been represented in the negotiation of the settlement, the minor, parent, and the next friend or guardian shall be required to appear with the attorney or non-attorney representative for the minor.

(i)  A full medical report, including a recent and detailed prognosis from the attending physician, will ordinarily be required. “Recent” shall mean a report dated not more than 6 months prior to the date of the filing of the petition for approval of a settlement.

(j)  (1)  Court approval of a net settlement of $10,000.00 or less is not required by statute; however, if a party desires court approval, the court’s order will ordinarily be in substantially the following form:
Settlement approved.  All bills listed in the petition are to be paid.  Counsel fees in the amount of $_____________ allowed (if settlement was actually negotiated by counsel representing the minor).  The balance, amounting to $_____________, shall be deposited in a savings account in the __________ Bank at ________________ in the name of ______________, as Trustee for ______________, no withdrawals to be made prior to the 18th birthday of said minor, except on written approval of the court.  Said savings institution is authorized to pay over the full amount remaining in said account to the said ________________ upon satisfactory proof that he/she has reached the age of 18 years.  Approval is conditional upon compliance with this order with respect to payment of bills and deposit.

(2)  If the net amount of a settlement exceeds $10,000.00, court approval is required, and the court’s order will ordinarily be in substantially the following form:
Settlement approved. All medical bills and other approved expenses listed in the petition are to be paid. Counsel fees in the amount of $______________ allowed (if settlement was actually negotiated by counsel representing the minor). The balance amounting to $_____________, shall be paid over to __________________, as guardian over the estate of the minor.
Said funds shall, upon payment, be under the jurisdiction of the appropriate Circuit Court-Probate Division and shall be administered in accordance with the requirements of the Circuit Court-Probate Division. Any requests for withdrawal shall be addressed to the Circuit Court-Probate Division for its consideration.
Approval is conditional upon compliance with this order with respect to payment of bills and deposit of funds in accordance with this order.
Counsel for the minor shall be responsible for the settlement funds until said funds shall have actually been deposited in the appropriate guardianship account pursuant to the terms of this order and pursuant to the terms of the guardianship.

(k)  In the event that the parties desire to enter into a structured settlement, which is defined as a settlement wherein payments are made on a periodic basis, the following rules shall also apply:

(1)  Counsel for the defendants shall provide the court with an affidavit from an independent certified public accountant, or an equivalent professional, specifying the present value of the settlement and the method of calculation of that value.
(2)  If the settlement is to be funded by an annuity, the annuity shall be provided by an annuity carrier meeting at least the following criteria:

(A)  The annuity carrier must be licensed to write annuities in New Hampshire and, if affiliated with the liability carrier or the person or entity paying the settlement, must be separately capitalized, licensed and regulated and must have a separate financial rating;
(B)  The annuity carrier must have a minimum of $100,000,000.00 of capital and surplus, exclusive of any mandatory security valuation reserve;
(C)  The petition shall contain the following information about the annuity and the annuity carrier:

(i)  a description of the structure of the annuity arrangement;
(ii)  a description of the history and size of the annuity carrier and its experience in issuing annuities;
(iii)  a certificate from the New Hampshire Insurance Department stating that the annuity carrier is in good standing in New Hampshire;
(iv)  whether the annuity carrier is domiciled or licensed in a state accredited by the National Association of Insurance Commissioners under that organization’s Financial Regulation Standards program; and
(v)  the annuity carrier’s most recent ratings from at least two of the commercial rating services listed in subparagraph (D);

(D)  The annuity carrier must have one of the following ratings from at least two of the following rating organizations:

(i)  A.M. Best Company: A++, A+, A, or A-;
(ii)  Moody’s Insurance Financial Strength Rating: Aaa or Aa;
(iii)  Standard & Poor’s Corporation Insurer Claims-Paying Ability Rating: AAA, AA+, AA, or AA-;
(iv)  Duff & Phelps Credit Rating Company Insurance Company Claims Paying Ability Rating: AAA, AA+, AA, or AA-;

(E)  The annuity carrier must meet any other requirement the court considers reasonably necessary to assure that funding to satisfy periodic payment settlements will be provided and maintained;
(F)  The annuity carrier issuing an annuity contract pursuant to a qualified funding plan under these rules may not enter into an assumption reinsurance agreement for the annuity contract without the prior approval of the court and the owner of the annuity contract and the claimant having the beneficial interest in the annuity contract. The court shall not approve assumption reinsurance unless the reinsurer is also qualified under these rules;
(G)  The annuity carrier and the broker procuring the policy shall each furnish the court with an affidavit certifying that the carrier meets the criteria set forth in subsection (D) above as of the date of the settlement and that the qualification is not likely to change in the immediate future. The broker’s affidavit shall also contain the following certification: “This determination was made with due diligence by the undersigned based on rating information which was available or should have been available to an insurance broker in the structured settlement trade”;
(H)  In the event that the parties to the action desire to place the annuity with an annuity carrier licensed in New Hampshire which does not meet the above criteria, the court may consider approving the same, but only if the annuity obligation is bonded by an independent insurance or bonding company, licensed in New Hampshire, in the full amount of the annuity obligation; and
(I)  The court reserves the right to require other reasonable security in any structured settlement if the circumstances should so require.

(3)  The court may, for good cause shown, approve a structured settlement that does not comply with the provisions of paragraph (k). If the Court approves a settlement that does not comply with the provisions of paragraph (k), the court shall make specific findings on the record explaining the reason(s) for approving the settlement.


Rule 3.41     Reserved for future use.

Rule 3.42.    Default

(a)  When a party against whom a Complaint or other pleading (see Rule 3.6) requiring a response has been filed fails to timely Answer or otherwise defend, the party shall be defaulted.  No such default shall be stricken off, except by agreement, or by order of the court upon such terms as justice may require. The court shall strike the default only upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based.

(b)  Final default may be entered by the court, sua sponte, where appropriate, or by motion of a party, a copy of which shall be sent to all parties defaulted or otherwise.

(c)  In all cases in which final default is entered, whether due to failure to file an Answer or otherwise, the case shall be marked “final default entered, continued for entry of judgment or decree upon compliance with Rule 3.42.”  A copy of the court’s order and any subsequent orders shall be mailed or electronically delivered to all parties, defaulted or otherwise.

(d)  The non-defaulting party may then request entry of final judgment or decree, by filing a motion, together with an affidavit of damages.  Where the default is based on a failure to file an Answer, the motion shall include a military service statement. The moving party shall certify to the court that a copy of all pleadings has been mailed to the defaulting party and shall include a notice that entry of final judgment or decree is being sought. Any party may request a hearing as to final judgment or decree.  All notices under this rule shall be sufficient if mailed to the last known address of the defaulting party.

(e)  A hearing as to final judgment or decree shall be scheduled upon the request of any party.  Otherwise, the court may enter final judgment or decree based on the pleadings submitted or exercise its discretion to hold a hearing depending on the circumstances of the default, the sufficiency of the pleadings and the nature of the damages sought or relief requested.

(f)  If the court schedules a hearing, all parties, defaulted or otherwise, shall receive notice and an opportunity to be heard.

Rule 3.43.    Procedure After Trial

A motion to set aside verdict or decree shall be filed within 10 days from the date on the court’s written notice with respect to same, which shall be mailed by the court on the date of the notice.  In each case, the motion shall fully state all reasons and arguments relied on.


Rule 3.44.    Verdict upon Negotiable Instrument

When a verdict is rendered upon a negotiable instrument, or similar evidence of indebtedness, the original shall be filed with the clerk before judgment or execution is issued, unless the court otherwise orders.

Rule 3.45.    Taxation of Costs

(a)  Costs. Costs shall be allowed as of course to the prevailing party as provided by these rules, unless the court otherwise directs.

(1)  Taxation of Costs.  Upon written request, the clerk shall tax costs in any case, which shall include the fees of the court and fees for service of process which are documented in the court file.
(2)  Any party claiming other allowable costs shall file a motion to allow costs together with an itemized, verified bill of all costs requested, to be ruled upon by the court.  Any party aggrieved by the court’s order concerning costs may appeal therefrom within 30 days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.

(b)  Allowable Costs. The following costs shall be allowed to the prevailing party: Fees of the court, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The court, in its discretion, may allow the stenographic cost of an original transcript of a deposition, plus one copy, including the cost of videotaping, and may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.

Rule 3.46.    Appeals and Transfers to Supreme Court

(a) Interlocutory Appeals. Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, counsel shall seasonably prepare and file with the trial court the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 or Supreme Court Rule 9, and after the court has signed the statement, counsel shall mail the number of copies provided for by the rules of the Supreme Court to the clerk thereof.

(b)  Denial of Motion to Dismiss Challenging Personal Jurisdiction, Process and/or Service of Process.  When, pursuant to Rule 3.9(e), a party files a timely Motion to Dismiss challenging the court’s personal jurisdiction, sufficiency of process and/or sufficiency of service of process and the motion is denied, the order denying the motion may be appealed pursuant to Supreme Court Rule 7.  See Rule 3.9(e) (a party will be deemed to have waived a challenge to personal jurisdiction, sufficiency of process and/or sufficiency of service if the party does not seek review by the supreme court of the denial of the Motion to Dismiss within 30 days; the supreme court’s declining to accept the appeal will not preclude the party from challenging the trial court’s ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court). 

(c)  Judgment on Multiple Claims or Involving Multiple Parties.

(1) When, in a civil action that presents more than one claim for relief – whether as a claim, counterclaim, cross-claim, or third party claim – or where multiple parties are involved, the court enters an order that finally resolves the case as to one or more, but fewer than all, claims or parties, the court may direct that its order, or a portion of its order, be treated as a final decision on the merits as to those claims or parties if the court:

(A) explicitly refers to this rule;
(B) identifies the specific order or part thereof that is to be treated as a final decision on the merits;
(C) articulates the reasons and factors warranting such treatment; and
(D) finds that there is an absence of any just reason for delay as to the party or claim that is to be severed from the remainder of the case. An order bifurcating or otherwise severing a civil action shall not, by itself, result in any order being treated as an appealable final decision on the merits unless all of the requirements of Rule 3.46(c)(1) are met. 

(2)  Procedure on Appeal.

(A) Any appeal from such an order shall be considered a mandatory appeal for purposes of Supreme Court Rule 7 if a final decision on the merits of the entire case would be a mandatory appeal, and shall be filed in accordance with Supreme Court Rules.
(B)  Prior to accepting an appeal from an order that the Circuit Court directed be treated as a final decision on the merits pursuant to Rule 3.46(c)(1), the Supreme Court may review the trial court’s reasons and factors warranting treating the order as a final decision on the merits.  If the Supreme Court determines, after notice to the parties and an opportunity for the filing of brief memoranda, that the Circuit Court clearly erred by directing that the order be treated as a final decision on the merits, the Supreme Court shall vacate the portion of the order directing that it be treated as a final decision on the merits, and otherwise dismiss the appeal without prejudice.

(d) Final Judgment. In all actions in which a verdict is entered, or in which a motion for a nonsuit or directed verdict is granted, or in which any motion is acted upon after verdict, all appeals relating to the action shall be deemed waived and final judgment shall be entered as follows, unless the court has otherwise ordered, or unless a Notice of Appeal has then been filed with the Supreme Court pursuant to its Rule 7:

(1)  Where no motion, or an untimely filed motion, has been filed after verdict, on the 31st day from the date on the court’s written notice that the court has made the aforementioned entry, grant or dismissal; or
(2)  Where a timely filed motion has been filed after verdict, on the 31st day from the date on the court’s written notice that the court has taken action on the motion.

(e)  The court shall not grant any requests for extensions of time to file an appeal document in the Supreme Court or requests for late entry of an appeal document in the Supreme Court; such requests shall be filed with the Supreme Court.  See Supreme Court Rule 21(6).

(f)  In civil actions in which a mistrial is declared, appeals from the denial of motions for nonsuit or directed verdict shall not be transferred to the Supreme Court before verdict following further trial unless the court shall approve an interlocutory appeal pursuant to Supreme Court Rule 8.

(g)  The procedure for preparation of a transcript for cases appealed or transferred to the Supreme Court is governed by Supreme Court Rule 15.

Comment

Rule 3.46(b), consistent with Rule 9(e) and Mosier v. Kinley, 142 N.H. 415, 423-24 (1997), provides that an order denying a timely-filed Motion to Dismiss challenging personal jurisdiction, sufficiency of process and/or sufficiency of service shall be appealable under Supreme Court Rule 7 without the need for the Circuit Court to take the actions set forth in Rule 3.46(c)(1).

Rule 3.46(c)(1) alters the rule announced in Germain v. Germain, 137 N.H. 83, 85 (1993), that “when a trial court issues an order that does not conclude the proceedings before it, for example, by deciding some but not all issues in the proceedings or by entering judgment with respect to some but not all parties to the action, we consider any appeal from such an order to be interlocutory.”  Rule 3.46(c)(1) authorizes the Circuit Court to designate certain orders that do not conclude the proceedings before it as final decisions on the merits that can be immediately appealed to the Supreme Court.  In Germain, the Supreme Court indicated that under some circumstances, an order bifurcating a case might suffice to convert otherwise interlocutory orders into final decisions on the merits.  Rule 3.46(c)(1), however, explicitly provides that a bifurcation order alone will no longer suffice; rather, the Circuit Court must comply with the requirements of Rule 3.46(c)(1)(A) through (D) if the court intends for an order that finally resolves the case as to one or more, but fewer than all, claims or parties to be treated as a final decision on the merits as to those claims or parties.

Rule 3.46(c)(2) provides that, prior to accepting the appeal, the Supreme Court may review the Circuit Court’s findings under Rule 3.46(c)(1)(C) and (D).  If, after providing the parties with the opportunity to file brief memoranda, the Supreme Court concludes that the Circuit Court clearly erred in its conclusion that the order should be treated as a final decision on the merits, the Supreme Court shall vacate that part of the order and otherwise dismiss the appeal.  The dismissal of the appeal is without prejudice to any party’s ability to file an appeal after the entire action is concluded in the Superior Court.

 

 

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