Judicial Branch, State of New Hampshire

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.
               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.
               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

     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

     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

     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.

               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,

               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

     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

     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-

     96-791    Hurley, Joseph V.          v.  Town of Hollis
               Malcolm R. McNeill Jr.         William R. Drescher
                                              Gerald R. Prunier, for
                                                intervenor, John

               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

     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

     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

     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

     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.