New Hampshire Supreme Court
Cases Accepted - February 1997
* denotes appealing parties
96-184 State of NH* v. Courtemarche, Gregory
Attorney General James E. Duggan
Behzad Mirhashem
Driving while intoxicated, second offense - double
jeopardy; whether jeopardy attaches in a bench trial before
any witness is sworn or evidence received
96-297 State of NH v. Hutchinson,* Ralph S.
Attorney General James E. Duggan
Obstructing government administration - sufficiency of
evidence; failure to appoint stand-by counsel
96-443 State of NH v. Sundquist,* Daniel
Attorney General Timothy Anderson
James E. Duggan
Possession of hypodermic needles - denial of opportunity to
use competing harms defense
96-444 State of NH v. Stuen-Parker,* Jon
Attorney General Kent Smith
James E. Duggan
Possession of hypodermic needles - denial of opportunity to
use competing harms defense
96-456 Soucy,* Richard and v. General Motors Corp.
Evelyn
B.J. Branch Bryan K. Gould
Negligence, products liability - whether court erred in
ordering that a voluntary nonsuit be granted with prejudice
96-467 Vitale,* L. Jean v. Vitale, Alphonse J.
(Soucy)
Kevin M. Fitzgerald Eugene M. VanLoan, III
Post-divorce modification - existence of mutual mistake;
whether grossly inequitable division of marital assets
should be reopened; whether plaintiff was defrauded;
failure to reopen despite defendant's misrepresentation;
failure to award plaintiff prejudgment interest
96-498 Davidson Distributors, v. Birmingham Pistol
Inc.* Wholesale, Inc.
William L. Tanguay Robert E. Jauron
Indemnification - personal jurisdiction; whether court has
personal jurisdiction over seller of Chinese-made guns who
placed guns in the national stream of commerce
96-589 Bianco,* James J. and Karen N., Petition of
(Belknap County Commissioners)
Kevin E. Buchholz for the Biancos
James Burke for City of Laconia
Rodney N. Dyer for commissioners
Airport easement - public necessity; failure to give notice
to all parties; whether commissioners erred by judging
taking in isolation; failure to rule on requests for
findings and rulings; failure to consider alternatives to
taking; whether public necessity for taking established;
admission of evidence after the close of evidence
96-613 Dubois and King, Inc. v. ASH Realty Trust*
Jeffrey B. Sisemoore Steven A. Bolton
Contract - failure to pay for services; whether court erred
in admitting recreated document which purported to set
forth terms of parties' contract; whether court erred in
calculating interest at contract rate rather than statutory
rate
96-624 State of NH v. DeMatteo,* Robert A.
Attorney General Stephen T. Jeffco
Imposition of suspended sentence - whether court erred in
admitting out-of-state convictions
96-627 State of NH v. Kennedy,* Gary J.
Attorney General Douglas A. MacMillan
Stephen P. Colella
Transportation of a controlled substance - whether juvenile
may be charged as an adult under RSA 169-B:32 with
misdemeanor when juvenile would be entitled to protection
of the juvenile statute had he been charged with a felony;
sufficiency of evidence of controlled substance
96-630 Deborah B.*, Petition of
David J.T. Burns for Deborah B.
Carl Potvin for Division of Mental Health
Attorney General
Involuntary civil commitment - conditional discharge
revocation; whether person whose conditional discharge is
being revoked is entitled to voluntary mental status exam;
whether such a person is entitled to full mental status
exam prior to absolute revocation of conditional discharge
96-636 Royce, Donna M., as v. Ford Motor Company, Inc.*,
parent and next Peterborough
friend of Elaine Ford-Mercury, Inc.,
LaFreniere Perry Motors, Inc.
Bruce W. Felmly James M. Campbell for
Ford Motor Company, Inc.
Negligent infliction of emotional distress - whether
stepdaughter who is not adopted can bring claim for
negligent infliction of emotional distress; denial of
directed verdict based on jury's answers on special verdict
form
96-647 Poulin,* Normand J. v. Morin, Pierre J.
and Therese M.
Steven M. Latici Emily Gray Rice
Legal malpractice - refusal to give jury instruction on
termination of lease; denial of motion for JNOV; denial of
motion to set aside and for new trial
96-670 Jeffery D.*, In re
Stuart Dedopoulos for Jeffery D.
Attorney General
First degree murder - juvenile certification as adult;
numerous issues including failure of superior court to
remand to district court for clarification, failure of
district court to consider duress, consideration by
district court of consolidation of this case with another
as a factor in certifying juvenile; sufficiency of
evidence; whether superior court erred in accepting
certification
96-692 Greenan, John C., Jr., v. Lobban, Richard A.,
Albert and Louise Jr., Jean L. Thompson,
Jordan, Richard and Sarah L. Decker,
Janet Miller, Cloyed Dorothy D. Lobban,
and Carol Ross, David Richard C. Doughty,*
Tapley, a/k/a Pasquaney Nancy T. Hand, James
Bay Beach Association H. Hand
David Slawsky David C. Engel for Mr.
Doughty
Quiet title - location of right-of-way; whether court erred
in relocating right-of-way by prescription
96-697 Kops, J. Peter de Bruyn,* v. Town of Amherst,
Kathleen M. Holman, P. Amherst Planning Board,
Michael and Sarah Fair- Benjamin and Rosemary
weather, Thomas F. and Brewster
Joanne C. Head, Concerned
Citizens of Amherst
John V. Dwyer, Jr. William R. Drescher
for town
Gerald R. Prunier
for the Brewsters
Municipal regulation - site plan; numerous issues including
whether zoning ordinance allows massive soccer facility in
residential/rural zone as an "amateur non-profit sports and
recreation use," whether ordinance as construed violates
RSA 674: 17, construction of term "non-profit uses," denial
of discovery as to potential conflict of interest, whether
condition precedent on project has been met
96-706 Holl, Gertrude, d/b/a v. Claremont Associates,*
J. Bricker's Restaurant Rosen Associates
Management Corp.
Carl D. Hanson Donald A. Burns for
Claremont Assoc. and
Rosen Assoc.
Ralph Holmes, for
intervenor, J & B Foods,
Inc.
Cross-easement - shopping center; whether certain take-out
foods were sold "for consumption on the premises" within
meaning of easement; whether injunction was overbroad;
sufficiency of evidence; exclusion of testimony as to
custom and usage in industry as to meaning of "premises"
96-729 Fisher,* George H., Jr., Appeal of
(workers' compensation appeals board)
John A. Wolkowski for Mr. Fisher
Sean M. Dunne for Tandy Corporation
Attorney General
Workers' compensation - whether petitioner's injury
continues to be totally disabling in nature; board's
failure to fully consider comprehensive medical records
96-735 Estate of Madeline M. Cass, In re
Cass Family Trust, In re
Leslie H Johnson for Gilbert Cass,* Trustee
Edwina Vanderzanden for Pricilla Cass Hundley
Susan H. Lee for Gilbert Cass, as Executor
Constructive trust, petition to remove trustee - whether
court erred in imposing constructive trust; failure to give
effect to documents executed by deceased while she was
competent; lack of notice to pro se litigant; exclusion of
letters of unavailable witnesses and deposition
96-737 McCarthy, Walton v. Town of Northwood and
Northwood Planning Board*
Anthony A. McManus Mark S. Gearreald
Municipal regulation - where petitioner failed to properly
appeal ZBA order, did trial court lack jurisdiction to
remand case to ZBA; where issues sought to be raised are
beyond scope of issues ZBA can consider, did court err in
remanding case to ZBA
96-741 Estate of Hazel Z. Cramer, In re
Dort Bigg for Demothenes Cramer
Michael C. Harvell for Sophia Stewart*
Ruth Ansell, GAL
Petition to prove will - whether evidence rebutted
presumption of no undue influence and testamentary capacity
96-769 Candia School Board,* Appeal of
(public employee labor relations board)
Bradley F. Kidder for school board
Gregory Andruschkevich for Candia Education Assoc.
Attorney General
Public employees - teacher salary increases based on
additional education; effect of so-called "escape clause"
in collective bargaining agreement; effect of prior binding
arbitration decision regarding tract movement
96-770 Kimball & Brown Van & Storage,* Appeal of
(workers' compensation appeals board)
Jeffrey H. Karlin for Kimball & Brown
D. Lance Tillinghast for Estate of Stephen Marcoux
Attorney General
Workers' compensation - wage calculation; proper method to
calculate wages of employee who is paid similarly to
independent contractor; failure to consider employee's
expenses; whether estate received windfall
96-773 State of NH v. Smith,* Dennis A.
Attorney General James E. Duggan
Ronald L. Abramson
Criminal threatening - denial of mistrial after officer
testified defendant had "propensity for violence" and
victim testified to prior bad acts; failure to dismiss
after State interfered with defendant's ability to prepare
defense; denial of continuance; denial of limiting
instruction
96-779 Norz,* Susan, Appeal of
(workers' compensation appeals board)
Eugene D. Loo for Ms. Norz
Paul Salafia for New Hampshire Ball Bearing, Inc.
Attorney General
Workers' compensation - reopening disability claim;
application of four-year statute of limitations after
department of labor mistakenly informed claimant that four-
year period had expired; failure to issue formal written
decision
96-780 Goodwin,* William, Appeal of
(workers' compensation appeals board)
David H. Bownes for Mr. Goodwin
James E. Owers for Computervision Corporation
Attorney General
Workers' compensation - causation; whether injuries were
work-related; failure of board to rule on requests for
findings of fact; sufficiency of evidence; estoppel
96-781 Marrotte,* Philip, Appeal of
(workers' compensation appeals board)
Leslie H. Johnson for Mr. Marrotte
W. Kirk Abbott, Jr. for Superior Drywall, Inc.
Attorney General
Workers' compensation - whether claim barred by res
judicata or collateral estoppel; construction of RSA 281-
A:48
96-791 Hurley, Joseph V. v. Town of Hollis
Malcolm R. McNeill Jr. William R. Drescher
Gerald R. Prunier, for
intervenor, John
Siergewicz*
Municipal regulation - special exception; whether court
erred in denying special exception; whether property is two
separate lots; whether town may allow change in
nonconforming use; town's authority to change zoning
regulations
96-802 Nashua School District SAU 42,* Appeal of
(public employee labor relations board)
James M. McNamee for Nashua School District
Emmanuel Krasner for Anne "Juni" Pierce
Attorney General
Labor relations - teacher non-renewal; whether non-renewal
of teacher is arbitrable under collective bargaining
agreement; whether nonrenewal is discipline subject to just
cause standard under CBA
96-824 Brooks, Nancy v. Holland,* Francis G.
Thomas A. Rappa, Jr. Mark E. Howard
Legal malpractice - numerous issues including statute of
limitations, judicial estoppel or ratification, sufficiency
of evidence, whether "lost opportunity for trial" is a
cognizable claim in legal negligence where underlying
divorce was settled; cross-appeal - exclusion of deposition
and reports of expert; exclusion of evidence of value of
corporation
96-844 State of NH v. Landry,* Carlton
Attorney General Mark L. Sisti
Felonious sexual assault - sufficiency of evidence; failure
to reveal victim's records from prior accusations of sexual
assault; allowing State to omit portions of victim's prior
statements
96-849 State of NH v. Rideout,* Leo, Jr.
Attorney General Mark L. Sisti
Second degree assault - motion to set aside verdict;
failure to set aside when juror left deliberations due to
medical emergency and was in company of a State's witness
and not supervised by court personnel; failure to set aside
after jury continued to deliberate despite absence of one
juror
97-027 Barnsley,* William v. Empire Mortgage Limited
Partnership V
William E. Aivalikles Richard Husband
Foreclosure - holder in due course from FDIC; whether
defendant is a holder in due course; whether promissory
note is a negotiable instrument; whether mortgage deed is
null and void upon payment of promissory note in full;
whether defendant can foreclose upon mortgage when
promissory note has been paid in full
97-036 Jason F.*, In re
Paul Twomey for Jason F.
Attorney General
Second degree murder - juvenile certification as adult;
numerous issues including admission of hearsay statements,
admission of statements by juvenile allegedly obtained in
violation of his constitutional rights, failure to consider
evidence adduced at hearing in determining seriousness of
offense and violent nature of offense, right of elocution,
and consideration of juvenile's contacts with law
enforcement not resulting in convictions.
97-086 Royce, Donna M. v. Ford Motor Company, Inc.*
Bruce W. Felmly James M. Campbell
Roy A. Duddy
Products liability, wrongful death - jury verdict; whether
trial court erred in determining original verdict was
inconsistent and resubmitting issues of legal fault and
damages; whether trial court erred in ordering new trial on
issues of legal fault and damages after jury's second
verdict; interlocutory
Note: The court has consolidated 96-443 and 96-444.