Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - April 1997

  * denotes appealing parties

96-109    Nottingham, Town of     v.  Newman,* Diane and Rick    
          Mark Gearreald              pro se

          Injunctive relief and civil penalties - zoning
          violation; denial of motion to vacate default
          entered for failure to appear at hearing 

96-686    Bezanson,* Dennis,      v.  Hampshire Meadows
            Trustee of Atom             Development Corp.
            Contracting, Inc.
          William S. Gannon           Steven G. Shadallah
          Breach of contract - allowing defendant to offset
          amounts owed plaintiff under contract absent any
          counterclaim or set-off defense; whether allowing
          offset deprived bankruptcy court of jurisdiction over
          plaintiff's bankruptcy estate; denial of lost profits,
          overhead costs, damages on per lot basis, and interest
          at the contract rate; sufficiency of evidence

96-818    Hanover Investment      v.  Town of Hanover*
          Bradford T. Atwood          Walter L. Mitchell

          Municipal zoning appeal - whether court may issue pro
          confesso decree against town without complying with
          notice provisions of RSA 514:1-a; whether RSA 514:1-a
          applies in equitable actions

96-843    Shaw*, Joseph, Appeal of
          (workers' compensation appeals board)
          Brian C. Shaughnessy for Mr. Shaw
          Nelson Raust for Osram Sylvania
          Attorney General

          Workers' compensation - causation; failure to properly
          apply causation tests; whether board erred in applying
          idiopathic fall doctrine; failure to shift burden of
          production to appellee after claimant made prima facie

97-007    Clow,* David            v.    O'Mara, James
          James E. Duggan               Attorney General
          Charles A. Bookman       

          Habeas corpus - whether lack of standard of proof or
          definition of "dangerousness" makes RSA 135:17-a and
          RSA 171-B:2 void for vagueness; whether equal
          protection violated by unequal treatment of mentally
          retarded persons accused of crime and other mentally
          retarded and mentally ill persons; sufficiency of
          evidence that plaintiff is presently dangerous or

97-011    State of NH             v.    Farnsworth,* Joseph 
          Attorney General              James E. Duggan
                                       Howard A. Clayman

          Felonious sexual assault -  failure to instruct jury in
          response to question that State must prove that crime
          occurred during time period alleged in indictment

97-047    Caron,* Brian           v.    Warden, NH State Prison
          James E. Duggan               Attorney General
          Jonathan R. Saxe

          Habeas corpus - whether RSA 651:21 gave the sentencing
          court authority to add probation to the petitioner's
          sentence after petitioner began serving his sentence

97-059    Hopwood,* Mary P.        v.   Pickett, Robert J.,
                                          McLane, Graf, 
                                          Raulerson and 
                                          Middleton, trustee
          Michael E. Chubrich           James E. Ritzo for Mr. 
                                        Charles A. DeGrandpre for
                                        McLane, Graf, Raulerson
                                        and Middleton

          Constructive trust - whether court erred in allowing
          alleged murderer to inherit from murder victim's
          estate; failure to consider defendant's material lies
          as evidence supporting plaintiff's prima facie case;
          exclusion of tape-recorded conversations between
          defendant and his niece

97-072    Sanborn,* Pamela J.      v.   Traveis, Manuel Paul
          Mark S. Gearreald             Kathleen C. Peahl
          Negligence - automobile accident; numerous issues
          including insufficiency of damages awarded, whether
          court erred in instructing jury that defendant
          contested liability, failure to direct verdict on
          liability issue, allocation of burden of proof as to
          portion of injuries related to 1986 incident and
          portion related to 1991 car accident, admission of
          evidence that plaintiff was not wearing seat belt

97-085    Kukene,* John and Annette v.  Genualdo, Jeanne M.
          Arpiar G. Saunders, Jr.       James W. Carpenito

          Adverse possession - attorney's fees; whether court
          erred in awarding defendants attorney's fees based on
          its finding that plaintiffs were vexatious and acted in
          bad faith

97-093    HCA Parkland Medical Center,* Appeal of
          (workers' compensation appeals board)
          Lee C. Nyquist for HCA Parkland
          Terrence J. Daley for David Graves
          Attorney General

          Workers' compensation - whether RSA 281-A:15, III,
          which permits injured employee to compute average
          weekly wages by combining weekly earnings from
          concurrent employers subject to RSA chapter 281-A, bars
          the inclusion of weekly earnings from a Massachusetts
          employer who is not subject to RSA chapter 281-A

97-096    Rhuland,* Theresa, Appeal of
          (workers' compensation appeals board)
          Francis X. Quinn, Jr. for Ms. Rhuland
          Stephen J. Schulthess for Rockingham County             
            Nursing Home 
          Attorney General

          Workers' compensation - whether claim for temporary
          total disability benefits was time barred; whether
          board erred in considering issue not raised at
          department level hearing; ex parte communication
          between board and department of labor employee;
          reliance upon letter from employer's counsel that
          improperly raised issue of statute of limitations

97-097    Catudal,* Debra, Appeal of
          (workers' compensation appeals board)
          Benette Pizzimenti for Ms. Catudal
          Charles Giacopelli for Raytheon Company, Inc.
          Attorney General

          Workers' compensation - failure to rule on requests for
          findings and rulings; failure to rule on motion in
          limine; denial of motion to dismiss issue of causal
          relationship; denial of request that reduction in
          benefits not be retroactive in effect; whether board
          erred by ignoring uncontroverted expert opinion of
          treating physician; whether "karate incident" was
          independent cause of disability

97-102    CNA Insurance Companies,* Appeal of
          (workers' compensation appeals board)
          James E. Owers for CNA Insurance Cos.
          Daniel J. Harkinson for Byron Emmons
          Attorney General 

          Workers' compensation - second injury fund; whether
          employee with preexisting permanent impairment due to
          1985 knee injury suffered "second injury" when he
          injured his back several months later as a result of
          knee injury; whether employer is entitled to
          reimbursement from second injury fund

97-105    State of NH             v.    Daigle,* Michael
          Attorney General              James E. Duggan
                                        Jennifer B. Sobel

          Burglary - allowing prosecutor to comment on facts not
          in evidence during closing argument

97-116    State of NH             v.    Lindemann,* Lawrence
          Attorney General              James E. Duggan
                                        Eric R. Wilson

          Aggravated felonious sexual assault - failure to
          dismiss indictment despite variance in proof; allowing
          jury to consider de facto substantive amendment of
          indictment; sufficiency of the evidence; admission of
          prior uncharged act of aggravated felonious sexual
          assault and other bad acts; admission of evidence of
          defendant's post-Miranda silence; admission of evidence
          supporting credibility of victim

97-117    State of NH              v.   Jacobs,* Arthur
          Attorney General              James E. Duggan
                                        Theodore Barnes

          Sale of crack cocaine - whether court erred in
          admitting cocaine as evidence where State failed to
          prove chain of custody

97-120    Willmer,* Sherry, indiv-  v.  Department of Resources 
            ually and as admx. of         and Economic Dev.,     
            Estate of John Mitchel        State of NH            
          Mark Rufo                     Richard Mills

          Wrongful death - settlement; whether settlement offer
          of $5,000 remained outstanding after trial court issued
          summary judgment to defendant, allowing plaintiff to
          accept it at that time; whether $5,000 is "reasonable"
          to settle appeal rights on wrongful death claim;
          failure of judge to recuse himself; award of attorney's
          fees to defendants in defending motion to enforce

97-123    Hix, Thomas D.            v.  Auto Wholesalers of 
                                          Hooksett, Inc.*
          Marc W. McDonald              Peter J. Duffy

          Sale of used automobile - whether due process violated
          by order of rescission and restitution where district
          court lacked equity jurisdiction and plaintiff sought
          only damages; whether plaintiff's actions constituted
          acceptance of vehicle; whether vehicle's hidden defects
          substantially impaired its value; whether defects were
          cured so as to preclude revocation of acceptance;
          whether plaintiff had adequate remedy at law in
          damages; cross-appeal - whether defendant's conduct was
          unfair and deceptive trade practice entitling plaintiff
          to treble damages and attorney's fees

97-125    Beaulieu,* Elizabeth, Appeal of
          (workers' compensation appeals board)
          D. Lance Tillinghast for Ms. Beaulieu
          James E. Owers for Thompson Center Arms Co., Inc.
          Attorney General

          Workers' compensation - disqualification of claimant
          for benefits based upon her failure to return to part-
          time work; sufficiency of the board's findings of fact

97-128    Murray,* Carmen S., Appeal of
          (workers' compensation appeals board)
          Leslie C. Nixon for Ms. Murray
          Edward F. Patch for K-Mart Corp. of NH
          Attorney General

          Workers' compensation - travel expenses; whether
          claimant entitled to reimbursement of travel expenses
          related to reasonable and necessary medical treatment

97-133    Spengler,* Kenneth C.    v.   Porter, Walter and Bonnie
            Ellen D., Philip D. 
            and Evelyn C. Barry, 
            Ann Marie and Russell 
            V. Lafayette, Jr., Roger 
            S. and Bonnie M. Brown
          Heidi E. Shealy               Stephen G. Hermans
          Private airstrip - denial of petition for injunction
          and declaratory relief after temporary hearing limited
          to offers of proof; whether petition stated a claim;
          whether town proscribed private airstrips within
          meaning of RSA 674:16, V; constitutionality of RSA
          674:16, V

97-157    State of NH             v.    Pham,* Thach Ngoc
          Attorney General              James E. Duggan
                                        James D. Gleason

          Aggravated felonious sexual assault, assault - whether
          in-court identification was inadmissible; sufficiency
          of evidence

97-162    Dow,* Ellice            v.    Sears, Roebuck and
                                          Co., Inc.
          Matthew B. Cox                Nelson A. Raust

          Employment discrimination - disability; extent and
          scope of review by superior court of finding of no
          probable cause by human rights commission

97-215    State of NH*            v.    Storey, Catherine 
          Attorney General              Eugene Struckhoff

          Driving while intoxicated - motion to suppress; whether
          arresting officer lacked probable cause to arrest;
          interlocutory appeal

97-217    Request from the House for an Opinion of the
          (Constitutionality of allowing municipalities to offer
          tax incentives to foster growth in new and existing
          industrial construction)

          Request by House of Representatives for opinion of
          constitutionality of house bill allowing municipalities
          to offer tax incentives to foster growth in new and
          existing industrial construction; whether
          classification of taxable property is based on
          reasonable distinction; whether provisions violate
          requirement that taxes be uniform and equal or
          constitutional prohibition of gifts to corporations
          organized for profit