TITLE LI
COURTS

Chapter 491
SUPERIOR COURT

Section 491:1

    491:1 Justices. – The superior court shall consist of a chief justice, appointed by the governor and council to a 5-year term, and 21 associate justices. Said justices shall be appointed and commissioned as prescribed by the constitution and shall exercise the powers of the court unless otherwise provided. The chief justice shall be appointed from among the associate justices. In the event that the chief justice resigns as chief justice or is not reappointed at the expiration of the 5-year term, he or she may return to the position of associate justice, whether or not an associate justice vacancy then exists.

Source. 1901, 78:1. PL 316:1. 1927, 51:1. RL 370:1. 1945, 174:1. 1951, 221:1. 1953, 168:1. RSA 491:1. 1963, 260:1. 1969, 453:1. 1971, 456:7. 1977, 600:45. 1983, 381:1, 10; 383:20. 1991, 202:1. 2006, 38:3, eff. Dec. 8, 2010.

Section 491:2

    491:2 Repealed by 2003, 311:10, II, eff. July 1, 2003. –

Section 491:3

    491:3 Assignment From Supreme Court. – When the business of the superior court or circuit court requires it, and upon request of the chief justice of the superior court or the administrative judge of the circuit court, the chief or senior associate justice of the supreme court may, if not inconsistent with the proper advancement of the business of the supreme court, assign himself or herself or some other justice of the supreme court to preside and serve in the superior court or circuit court. While thus presiding and serving, such supreme court justice shall have all the authority of a superior court justice or circuit court judge.

Source. 1913, 141:1. PL 316:2. RL 370:2. 2021, 207:2, Pt. IV, Sec. 1, eff. Oct. 9, 2021.

Section 491:3-a

    491:3-a Assignment of Judges. – After assessing caseload needs and requirements and consulting with the chief justice of the superior court or administrative judge of the circuit court, the chief justice of the supreme court may assign any superior court justice to hear cases in the circuit court.

Source. 1997, 131:1, eff. Aug. 8, 1997. 2021, 207:2, Pt. IV, Sec. 1, eff. Oct. 9, 2021.

Section 491:4

    491:4 Disqualification in Supreme Court. – No justice of the supreme court thus presiding or acting in the superior court shall sit in the supreme court in cases transferred thereto by him except cases transferred upon agreed statements of facts, or upon referees', auditors', or commissioners' reports on which he made no ruling, unless it shall be necessary for him to sit in order that the cases may be decided.

Source. 1913, 141:1. PL 316:3. RL 370:3.

Section 491:5

    491:5 Expenses of Assigned Justices. – The expenses of a justice of the supreme court while acting in the superior court shall be paid from the appropriation for the expenses of the justices of the superior court.

Source. 1913, 141:1. PL 316:4. RL 370:4.

Section 491:6

    491:6 Administrative Assistant to the Chief Justice. – The chief justice of the superior court shall appoint an administrative assistant who shall serve at his pleasure. The administrative assistant shall serve as fiscal officer of the superior court and shall perform such other duties as may be required by the chief justice and shall receive such salary as may be provided by appropriation therefor.

Source. 1901, 78:14. 1905, 107:1. 1913, 141:2. 1917, 212:1. 1919, 77:1. 1921, 147:1; 148:1. PL 316:5. 1927, 57:2. 1929, 159:2. 1941, 141:1. RL 370:5. 1947, 25:2. 1953, 74:2; 265:1, 8. RSA 491:6. 1957, 68:2. 1961, 221:8. 1975, 505:13, eff. July 1, 1975.

Section 491:6-a

    491:6-a Superior Court Justices and Marital Masters; Expenses. – The justices and marital masters shall be entitled to receive their actual personal expenses when absent from their assigned court in the performance of their official duties. The justices and marital masters shall not be reimbursed for mileage to commute from the justice's or marital master's residence to their assigned court except for any mileage in excess of 50 miles each way.

Source. 1975, 505:13. 2004, 91:2. 2007, 119:2. 2009, 60:3, eff. Aug. 2, 2009.

Section 491:7

    491:7 Jurisdiction. – The superior court shall take cognizance of civil actions and pleas, real, personal, and mixed, according to the course of the common law, except such actions as are required to be brought in the family division under RSA 490-D, district courts under RSA 502-A, or the probate courts under RSA 547; of writs of mandamus and quo warranto and of proceedings in relation thereto; of petition and appeals relating to highways and property taken therefor and for other public use; of actions commenced in the probate or district courts where a right to jury trial is guaranteed by the constitution; of actions commenced in a district court which are transferable by statute to the superior court; of suits in equity under RSA 498:1; of petitions for new trials; of petitions for the redemption and foreclosure of mortgages; of all other proceedings and matters to be entered in, or heard at, said court by special provisions of law; and of all other proceedings and matters cognizable therein for which other special provision is not made.

Source. RS 172:3, 5. 1855, 1659:2. 1859, 2211:3. GS 189:3. 1870, 2:1. GL 208:3. 1885, 13:1; 42:1. PS 204:4. 1901, 78:2. PL 316:6. RL 370:6. RSA 491:7. 1957, 244:6. 1963, 331:2. 1965, 327:4. 1973, 145:10. 1975, 395:4. 1992, 284:11, eff. Jan. 1, 1993. 2014, 204:31, eff. July 11, 2014.

Section 491:7-a

    491:7-a Business and Commercial Dispute Docket. –
I. Without limiting the jurisdiction vested in any court in the state, and subject to the appointment of a presiding justice by the governor with the consent of the executive council as provided in this section, the supreme court may establish by court order not inconsistent with this section, a business and commercial dispute docket in the superior court which shall have jurisdiction to hear and determine business and commercial disputes, as described in this section, when:
(a) The parties have consented to the jurisdiction of the business and commercial dispute docket by agreement or stipulation;
(b) At least one party is a "business entity" as defined in paragraph II;
(c) No party is a consumer as that term is defined in paragraph II; and
(d) If money damages are sought, the amount in controversy exceeds $50,000 or such other greater amount as the supreme court determines by rule.
II. In this section:
(a) A "business entity" means a corporation, a statutory trust, a business trust or association, a real estate investment trust, a common law trust, any other unincorporated business, including a partnership, whether a general or a limited liability partnership, or limited partnership, including a limited liability limited partnership, a limited liability company, a professional association, or a joint venture.
(b) A "consumer" means an individual who purchases or leases merchandise primarily for personal, family, or household purposes.
III. The governor with the consent of the executive council may appoint the first presiding justice of the business and commercial dispute docket, who shall be qualified by reason of such person's knowledge and experience in business and commercial law matters. The chief justice of the superior court, following the appointment or designation of the initial presiding justice, may designate such additional justices to preside over business and commercial docket cases, as necessary, based upon caseload, disqualification of the presiding justice, or efficient allocation of judicial resources.
IV. The presiding justice of the business and commercial dispute docket shall be an associate justice of the superior court and shall be entitled to the compensation and benefits provided to all such justices under applicable law, including, but not limited to, RSA 491-A:1 and RSA 100-C.
V. The workload of the presiding justice of the business and commercial dispute docket shall be the matters before that docket. The presiding justice may be assigned to any other matter within the jurisdiction of the superior court or sit by designation on any other court in the same manner as any other associate justice of the superior court, as determined to be necessary by the chief justices of the superior and supreme courts.
VI. Subject to the provisions of this section, all civil actions in which the principal claim or claims arise from or involve the following shall be assigned to the business and commercial dispute docket for all purposes, including motion practice, discovery, injunctive relief, alternative dispute resolution, and hearing on the merits with or without a jury:
(a) Claims arising from breach of contract or fiduciary duties, fraud, misrepresentation, business tort, or statutory violations arising out of business dealings or transactions.
(b) Claims arising from transactions under the Uniform Commercial Code.
(c) Claims arising from the purchase, sale, and lease of commercial real or personal property or security interests therein.
(d) Claims related to surety bonds.
(e) Franchisee/franchisor relationships and liabilities.
(f) Malpractice claims of non-medical professionals in connection with rendering services to a business enterprise.
(g) Real estate title petitions.
(h) Shareholder derivative actions.
(i) Commercial class actions.
(j) Commercial bank transactions.
(k) Actions relating to the internal affairs or governance; dissolution or liquidation rights obligations between and among owners, including shareholders, partners, or members; or liability or indemnity of managers, including officers, directors, managers, trustees, or members or partners functioning as managers, of corporations, partnerships, limited partnerships, limited liability companies or partnerships, professional associations, business trusts, joint ventures, or other business enterprises.
(l) Business insolvencies and receiverships.
(m) Other complex disputes of a business or commercial nature.

Source. 2008, 124:1, eff. June 3, 2008.

Section 491:8

    491:8 Actions Against State. – The superior court shall have jurisdiction to enter judgment against the state of New Hampshire founded upon any express or implied contract with the state, including specific performance and other equitable remedies that are not limited to money damages. Any action brought under this section shall be instituted by bill of complaint and shall be tried by the court without a jury. The jurisdiction conferred upon the superior court by this section includes any set-off, claim or demand whatever on the part of the state against any plaintiff commencing an action under this section. The attorney general, upon the presentation of a claim founded upon a judgment against the state, shall submit the claim to the department or agency which entered into the contract, and said department or agency shall manifest said claim for payment from the appropriation under which the contract was entered into; provided, that if there is not sufficient balance in said appropriation, the attorney general shall present said claim to the general court for the requisite appropriation.

Source. 1951, 243:1. 1953, 83:1, eff. April 10, 1953. 2020, 12:2, eff. July 16, 2020.

Section 491:8-a

    491:8-a Motions for Summary Judgment. –
I. A party seeking to recover upon a claim, counterclaim, or crossclaim, or to obtain a declaratory judgment, may, at any time after the defendant has appeared, move for summary judgment in his favor upon all or any part thereof. A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move for a summary judgment in his favor as to all or any part thereof.
II. Any party seeking summary judgment shall accompany his motion with an affidavit based upon personal knowledge of admissible facts as to which it appears affirmatively that the affiants will be competent to testify. The facts stated in the accompanying affidavits shall be taken to be admitted for the purpose of the motion, unless within 30 days contradictory affidavits based on personal knowledge are filed or the opposing party files an affidavit showing specifically and clearly reasonable grounds for believing that contradictory evidence can be presented at a trial but cannot be furnished by affidavits. Copies of all motions and affidavits shall, upon filing, be furnished to opposing counsel or to the opposing party, if the opposing party is not represented by counsel.
III. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.
IV. If affidavits are not filed by the party opposing the summary judgment within 30 days, judgment shall be entered on the next judgment day in accordance with the facts. When a motion for summary judgment is made and supported as provided in this section, the adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or by reference to depositions, answers to interrogatories, or admissions, must set forth specific facts showing that there is a genuine issue for trial.
V. If it appears to the court at any time that any of the affidavits presented pursuant to this section are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party presenting them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees. Any offending party or attorney may be found guilty of contempt.

Source. 1955, 46:1. 1959, 264:1. 1965, 139:1; 208:14. 1973, 438:1. 1981, 260:1, eff. Aug. 15, 1981.

Section 491:9

    491:9 Administration of Oaths. – Justices of the superior court may administer oaths.

Source. RL 370:7.

Section 491:10

    491:10 Rules. – The court, acting as a body, may from time to time establish rules and orders of practice, consistent with the laws, for conducting and regulating its business, and may prescribe forms of proceedings in all cases not provided for.

Source. RS 171:9. CS 181:12. 1855, 1659:14. 1859, 2213:2. GS 189:6. GL 208:6. PS 204:5. PL 316:7. RL 370:8. 1951, 221:7, eff. Aug. 15, 1951.

Section 491:10-a

    491:10-a Use of Recording Devices. – Upon petition by either party before or during any hearing or trial, the court may in its discretion allow said party to record the proceedings by any recording device. Said recordings shall be made at the expense of the petitioner and no fee shall be levied by the court against either party for this recording.

Source. 1973, 536:1, eff. Aug. 31, 1973.

Section 491:11

    491:11 Process on Deposited Records. – The court may issue writs of execution scire facias, and other proper process, upon judgments, records, and files of any court or justice required to be kept by the clerk of the court as records of his office, and may amend the same in like manner as if they had been originally records and files of the superior court.

Source. 1859, 2211:2. GS 189:7. GL 208:7. PS 204:6. PL 316:8. RL 370:9.

Section 491:12

    491:12 Scire Facias on Municipal Court Judgments. – Scire facias may be issued in the superior court, upon judgments and other proceedings in municipal courts, when the amount of the judgment or other demand claimed, including costs and interests, exceeds the jurisdiction of said municipal court, upon attested copies of such judgments or other proceedings being filed in the superior court.

Source. RS 180:2. CS 191:3. GS 189:8. GL 208:8. PS 204:7. PL 316:9. RL 370:10. RSA 491:12. 1957, 244:37, eff. Sept. 23, 1957.

Section 491:13

    491:13 Trials by Court. – Causes which the court has authority to refer shall, as far as practicable, be tried by one or more justices of the court, unless one of the parties objects.

Source. 1855, 1659:26. GS 189:4. GL 208:4. 1881, 55:1. PS 204:8. PL 316:10. RL 370:11.

Section 491:14

    491:14 Equity Procedure. – Suits in equity, petitions for divorce, nullity of marriage, alimony, custody of children, allowance to wife from husband's property, new trials, redemption and foreclosure of mortgages, writs of mandamus and quo warranto, and other similar proceedings may be heard upon oral testimony or depositions, or both; or when both parties consent, or service having been made and a notice of the time and place of the hearing having been given, when both parties appear, such suits may be heard by any justice of the court at any time, but nothing contained in this section shall be construed as limiting the power of the court to have issues of fact framed and tried by a jury, according to the rules in equity, or the course of such proceedings at common law.

Source. 1870, 2:1. GL 208:3. PS 204:9. PL 316:11. RL 370:12. RSA 491:14. 1992, 284:12, eff. Jan. 1, 1993.

Section 491:14-a

    491:14-a Defendant's Name. – When the name of the defendant is unknown to the plaintiff, a bill in equity may be brought against him by a fictitious name, and it shall not for that cause be abated, but may be amended on such terms as the court may order.

Source. 1971, 18:1, eff. May 28, 1971.

Section 491:15

    491:15 Findings. – The court or justice trying causes under RSA 491:13 and 491:14 shall, if either party requests it, give his decision in writing, stating the facts found and his rulings of law, which shall be filed and recorded.

Source. 1855, 1659:27. GS 189:5. 1870, 2:3. GL 208:5. PS 204:10. PL 316:12. RL 370:13.

Section 491:16

    491:16 On Issues Framed. – In bills in equity, when issues are framed and tried by jury, the verdict or findings of the jury shall be advisory and may be modified or set aside if not satisfactory to found a decree upon.

Source. 1935, 120:1. RL 370:14. RSA 491:16. 1975, 395:5, eff. Jan. 1, 1976.

Section 491:17

    491:17 Transfer of Cases. – Questions arising upon exceptions, upon a special verdict, an issue of law, motion for a new trial or in arrest of judgment, or other motion or proceeding, or upon a statement of facts agreed to and signed by the parties, may be reserved and transferred by the presiding justice, in his discretion, for the determination of the supreme court.

Source. RS 172:8. CS 181:26. 1855, 1659:17. GS 189:11. GL 208:11. PS 204:13. PL 316:13. RL 370:15. RSA 491:17. 1967, 132:21, eff. July 18, 1967.

Section 491:18

    491:18 Stay of Execution. – When a bill of exceptions is allowed, the court may stay execution upon the judgment rendered in the case, upon such terms and conditions as the court deems just.

Source. 1855, 1659:17. GS 189:14. GL 208:14. PS 204:16. PL 316:14. RL 370:16.

Proceedings for Contempts Before Other Bodies

Section 491:19

    491:19 Petition. – Whenever any official or board is given the power to summon witnesses and take testimony, but not the power to punish for contempt, and any witness refuses to obey such summons, either as to his appearance or as to the production of things specified in the summons, or refuses to testify or to answer any questions, a petition for an order to compel him to testify or to comply with the summons may be filed in the superior court, or with some justice thereof.

Source. PL 316:15. RL 370:17.

Section 491:20

    491:20 Procedure. – Upon the filing of a petition pursuant to RSA 491:19, the court or justice shall have authority to proceed in the matter as though the original proceeding had been in the court, and may make orders and impose penalties accordingly.

Source. PL 316:16. RL 370:18.

Marital Masters

Section 491:20-a to 491:20-c

    491:20-a to 491:20-c Repealed by 2005, 177:18, II, eff. July 1, 2005. –

Miscellaneous Provisions

Section 491:21

    491:21 Naturalization. – The superior court shall have and entertain jurisdiction of applications and other proceedings for the naturalization of aliens under any of the acts of congress in relation thereto.

Source. 1876, 47:1. GL 29:12. 1889, 37:1. PS 238:1. 1909, 65:1. PL 316:17. RL 370:19.

Section 491:22

    491:22 Declaratory Judgments. –
I. Any person claiming a present legal or equitable right or title may maintain a petition against any person claiming adversely to such right or title to determine the question as between the parties, and the court's judgment or decree thereon shall be conclusive. The taxpayers of a taxing district in this state shall be deemed to have an equitable right and interest in the preservation of an orderly and lawful government within such district; therefore any taxpayer in the jurisdiction of the taxing district shall have standing to petition for relief under this section when it is alleged that the taxing district or any agency or authority thereof has engaged, or proposes to engage, in conduct that is unlawful or unauthorized, and in such a case the taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced. The preceding sentence shall not be deemed to convey standing to any person (a) to challenge a decision of any state court if the person was not a party to the action in which the decision was rendered, or (b) to challenge the decision of any board, commission, agency, or other authority of the state or any municipality, school district, village district, or county if there exists a right to appeal the decision under RSA 541 or any other statute and the person seeking to challenge the decision is not entitled to appeal under the applicable statute. The existence of an adequate remedy at law or in equity shall not preclude any person from obtaining such declaratory relief. However, the provisions of this paragraph shall not affect the burden of proof under RSA 491:22-a or permit awards of costs and attorney's fees under RSA 491:22-b in declaratory judgment actions that are not for the purpose of determining insurance coverage.
II. The district court shall have concurrent jurisdiction over such claims arising under its subject matter jurisdiction authority in RSA 502-A except that the defendant shall have the right to remove said declaratory judgment action to the superior court, subject to conditions established by rule of court, if the claim exceeds $1,500. The court of probate shall have exclusive jurisdiction over such claims arising under its subject matter jurisdiction authority in RSA 547 and RSA 552:7.
III. No petition shall be maintained under this section to determine coverage of an insurance policy unless it is filed within 6 months after the filing of the writ, complaint, or other pleading initiating the action which gives rise to the question; provided, however, that the foregoing prohibition shall not apply where the facts giving rise to such coverage dispute are not known to, or reasonably discoverable by, the insurer until after expiration of such 6-month period; and provided, further, that the superior court may permit the filing of such a petition after such period upon a finding that the failure to file such petition was the result of accident, mistake or misfortune and not due to neglect. A petition for declaratory judgment to determine coverage of an insurance policy may be instituted as long as the court has personal jurisdiction over the parties to the matter, even though the action giving rise to the coverage question is brought in a federal court or another state court.

Source. 1929, 86:1. RL 370:20. RSA 491:22. 1967, 432:1. 1992, 284:13. 1994, 37:1. 1996, 185:1, eff. Jan. 1, 1997. 2012, 262:1, eff. Jan. 1, 2013.

Section 491:22-a

    491:22-a Liability Coverage; Burden of Proof. – In any petition under RSA 491:22 to determine the coverage of a liability insurance policy, the burden of proof concerning the coverage shall be upon the insurer whether he institutes the petition or whether the claimant asserting the coverage institutes the petition.

Source. 1969, 255:1, eff. Aug. 19, 1969.

Section 491:22-b

    491:22-b Insurance Actions; Costs and Attorneys' Fees. – In any action to determine coverage of an insurance policy pursuant to RSA 491:22, if the insured prevails in such action, he shall receive court costs and reasonable attorneys' fees from the insurer.

Source. 1973, 458:1, eff. Aug. 29, 1973.

Section 491:22-c

    491:22-c Availability of Remedy. – The remedy of declaratory judgment to determine the coverage of a liability insurance policy under RSA 491:22, 22-a, and 22-b shall also be available in the United States district court for the district of New Hampshire when that court may properly adjudicate the matter under the laws of the United States.

Source. 1987, 150:1, eff. July 10, 1987.

Section 491:23

    491:23 Repealed by 2005, 292:5, eff. July 1, 2005. –

Section 491:24

    491:24 Civil Suits Against Municipal Officials. –
I. Whenever a municipal official or individual member of a municipal board or agency, who is subject to good faith immunity under the provisions of RSA 31:104 or the common law of New Hampshire, is sued personally for money damages and the plaintiff alleges injury or damage resulting from action taken in bad faith or with malice on the part of the official or member when acting in his or her official capacity, the superior court shall hold a preliminary hearing within 90 days of the service date specified by the court on the summons.
II. At the hearing the plaintiff shall demonstrate that the allegation of bad faith or malice is based upon information and belief formed after reasonable inquiry and well grounded in fact and that there is a substantial likelihood that, following discovery, evidence shall be adduced sufficient to create an issue for determination by the finder of fact. If the plaintiff fails in such demonstration, the action against such official or member shall be dismissed.
III. If, upon all the evidence presented at the hearing, the court determines that the action is frivolous or intended to harass or to influence the official actions or decisions of the municipal official or board member, the plaintiff shall pay the court costs and reasonable attorneys' fees of the defendant.

Source. 1989, 169:1, eff. Jan. 1, 1990. 2014, 204:32, eff. July 11, 2014.

Section 491:25

    491:25 Arrest Warrants; Copies Transmitted to State Police. – A copy of each arrest warrant issued by a court shall be transmitted by computer to the division of state police. The state police shall make information regarding the warrant available to the arresting police department and all local police departments and sheriffs. In the eleventh month after the warrant is issued, the state police shall contact the court which issued the warrant for updated information and the court shall reissue the warrant if the state still has a case against the defendant.

Source. 1992, 257:25.