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*
Corp.
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
case
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
retarded
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.
Pickett
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
settlement
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
Justices
(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