New Hampshire Supreme Court
Cases Accepted - January 1997
* denotes appealing parties
96-027 State of NH v. Nadeau,* Paul
Attorney General James E. Duggan
Nicholas K. Holmes
Driving while intoxicated, subsequent offense - denial of defendant's
request to be present during voir dire of potential jurors
96-383 State of NH v. Flynn,* Matthew M.
Attorney General James E. Duggan
Robert B. Phillips
Transportation of controlled drug, possession of drug paraphernalia -
whether police inventory policy violates warrant requirement of State
Constitution; whether police search violated police inventory policy;
denial of motion to continue; denial of speedy trial; sufficiency of
evidence of knowledge of presence of drugs and paraphernalia
96-451 Farm Family Mutual v. Peck, Margaret Ann
Ins. Co.*
Robert S. Stephen Gemma M. Dreher
Collateral estoppel - whether compensation appeals board's decision
estops uninsured motorist claim that injuries were related to motor
vehicle accident; whether claimant's burden in workers' compensation
case to prove causation differs from burden in negligence action;
whether different legal standards apply to issue of causation in
workers' compensation case and negligence case
96-503 Soucy,* Douglas, Appeal of
(workers' compensation appeals board)
Anthony Demetracopoulos for Mr. Soucy
Edward Patch for Seabrook Greyhound Park
Dean Eggert for Breakwater Builders
Workers' compensation - causal relationship to employment, extent of
disability; whether board erred in refusing to accept videotaped
deposition of witness; whether board's decision denying benefits was
supported by evidence
96-525 Hallisey,* Leonard F. and v. DECA Corporation
Judith R.
David M. Groff Linda A. O'Connell
Purchase and sale agreement - cross-appeal; failure to award statutory
interest; failure to award multiple damages under Consumer Protection
Act
96-561 Town of Pelham,* Appeal of
(board of tax and land appeals)
Diane M. Gorrow for town
Robert Preston, pro se
Attorney General
Property tax - abatement; whether storage trailers are "buildings";
whether personal property became fixtures by constructive annexation;
whether board erred in relying on taxpayer's intent; whether trailer
taxable as manufactured housing
96-588 Sandford,* Joseph W. Jr. v. Town of Wolfeboro and
Lake Wentworth Assoc.
Charles G. Douglas III Mark H. Puffer for town
Carolyn W. Baldwin for
association
Prescriptive easement - flowage rights; whether summary judgment
proper that predecessor in interest acquired easement before 1958
where no evidence of pre-1958 flowage; allocation of burden of proving
elements for prescriptive easement; failure of court to set forth
portions of record upon which it relied; scope of easement
96-595 Reid, Beatrice, & a., Appeal of
(board of tax and land appeals)
Morgan A. Hollis for Ms. Reid et al
William A. Drescher for Town of Brookline
Taxation - real estate, leasehold interest; whether board of tax and
land appeals erred in ruling that petitioners' leasehold interests
were taxable under RSA 72:23, I, where lease does not require
lessees/petitioners to pay taxes on leasehold interest; whether board
erred in disregarding RSA 72:23, I, which requires property of town
under lease to state lessee's obligation for taxes; whether board
erred in finding leaseholds to be perpetual lease for tax purposes;
whether board erred in finding leases to be illegal and void for
failing to provide for taxation of leasehold, and in disregarding
lease language providing for payment of taxes on buildings
96-598 Dignam, Walter and Linda v. McMahon,* Jason R.
Glenn R. Milner Russell F. Hilliard
Negligence - automobile accident; whether amount of verdict was
manifestly exorbitant; failure to recall jury; exclusion of
impeachment evidence
96-614 Robertson,* James, Appeal of
(workers' compensation appeals board)
B.J. Branch for Mr. Robertson
Charles T. Giacopelli for Holiday Inn
Attorney General
Workers' compensation - causation; whether disability was related to
original work injury
96-628 Pheasant Lane Realty Trust v. City of Nashua,*
Dean B. Eggert James M. McNamee
Property taxes - supplemental tax bill; whether RSA 76:14 authorizes
city to issue supplemental tax bill; whether plaintiff failed to
exhaust administrative remedies
96-631 State of NH v. Huson,* Donald
Attorney General James E. Duggan
Theodore M. Lothstein
Criminal threatening - whether offense requires proof of established
purpose to terrorize rather than spur-of-the-moment threat; failure to
exclude evidence of defendant's possession of a gun; sufficiency of
evidence
96-639 State of NH v. McKeith,* Archibald
Attorney General James E. Duggan
John P. Newman
Felonious sexual assault - whether defendant "opened the door"; denial
of mistrial after State introduced inadmissible evidence of prior bad
acts; failure of victim to identify defendant; sufficiency of
evidence; jury misconduct
96-640 Mahoney,* Dennis v. Shaheen, Cappiello,
Stein & Gordon, PA
R. Peter Decato Sarah B. Shirley
Legal malpractice - whether court erred in holding that no material
dispute of fact exists; whether court erred in creating public policy
exception preventing malpractice action by criminal defendant who
cannot prove his innocence; whether representation of party in
investigative grand jury proceeding is in fact a criminal case
96-645 Morrison,* Charles, Appeal of
(workers' compensation appeals board)
A.G. O'Neil, Jr. for Mr. Morrison
Charles Giacopelli for Woodward's Auto Sales
Attorney General
Workers' compensation - causation; whether claimant proved injury
sustained as result of entering, exiting or operating employer's
vehicle; whether injury occurred in the time, space and boundaries of
employment; mutual benefit doctrine
96-646 State of NH v. Hurst,* Jeffrey
Attorney General James E. Duggan
Theodore M. Lothstein
Criminal restraint, reckless conduct, simple assault - admission of
victim's out-of-court statements as excited utterances and as
statements made for medical diagnosis; sufficiency of evidence; denial
of motion for new trial based on victim's recantation
96-648 State of NH v. Marti,* Antonio
Attorney General James E. Duggan
Sven D. Wiberg
Aggravated felonious sexual assault - numerous issues including
whether bringing of 104 new indictments after convictions were
reversed is prosecutorial vindictiveness, denial of right to speedy
indictment, admission of prior bad acts, sufficiency of indictments,
prosecutorial misconduct, excessive sentence, hearsay, failure to
sever trials, sufficiency of evidence
96-655 Gray,* James J. and v. Seidel, Gerald S., Jr.
Barbara C. and Margaret L.
Gray,* James J. and v. Town of Meredith Zoning
Barbara C. Board of Adjustment
Kevin F. Sullivan Gerald S. Seidel, Jr.,
and Margaret L. Seidel,
pro se
Philip T. McLaughlin for
Meredith Board of
Adjustment
Municipal zoning - variance; whether ZBA's denial of variance was
unreasonable; whether denial of permit for dock was unconstitutional
taking without compensation; whether superior court has authority to
determine if plaintiffs' use of dock on their easement is reasonable
exercise of property rights
96-665 Manchester Association v. City of Manchester
of Police Supervisors*
Kathryn B. Johnston Kevin St. Onge
Municipal ordinances - police stand-by and night shift pay; whether
PELRB has jurisdiction to hear claims arising under city ordinances;
whether court erred in categorizing plaintiff's claims as a dispute
over wages
96-667 Fred Fuller Oil Co.,* Appeal of
(department of labor)
Simon C. Leeming for Fred Fuller Oil Co.
Barbara F. Loughman and Matthew Upton
for Barry S. Leonard
Attorney General
Whistleblowers' Protection Act - numerous issues including sufficiency
of evidence, whether employee reported violation of any law or rule,
exclusion of evidence, procedural due process, ex parte communications
96-683 State of NH v. Rosciti,* Albert
Attorney General James E. Duggan
John P. Newman
Second degree assault, robbery, resisting detention - State's failure
to provide discovery; admission of prejudicial evidence; whether
assault was lesser-included offense of robbery; inconsistent jury
verdicts; whether jury instruction abrogated right of jury
nullification; denial of requested jury instruction of "accident"
96-684 State of NH v. Andrew,* Jeremiah
Attorney General Claude T. Buttrey
Possession of marijuana with intent to distribute - whether police had
probable cause to arrest and to search defendant's belongings;
sufficiency of evidence of intent to distribute
96-685 State of NH v. Cheney,* Michael G.
Attorney General James E. Duggan
Julia M. Nye
Bail jumping - whether bail jumping statute applies to failure to
appear at deferred sentencing hearing; whether defendant is released
with or without bail upon receiving deferred sentence; whether
defendant failed to surrender for service of sentence absent order
requiring defendant to surrender himself to house of corrections
96-696 NH Department of Transportation,* Appeal of
(board of claims)
Attorney General
Anne Duncan Cooley for Suzanne H. Archambault
Negligence - fall at State-owned rest area; lack of expert testimony
establishing causal link between claimant's fall and damages for
mental incapacity and institutionalization
96-701 Weeks, Philip J. v. St. Paul Fire and Marine
Ins. Co.*
Dixon, Marjorie v. St. Paul Fire and Marine
Ins. Co.*
G. Wells Anderson for Andrew D. Dunn
Mr. Weeks
Lisa Snow Wade for
Ms. Dixon
Insurance coverage dispute - attorney's fees; whether RSA 491:22-b
obligates insurer to pay fees incurred prior to inception of
declaratory judgment action or incurred defending underlying action
not subject to RSA 491:22; whether court erred by ordering insurer to
pay excessive fees and fees that include charges found to be outside
of what should be legitimately covered
96-722 Bellisle,* James, Appeal of
(workers' compensation appeals board)
Maureen Raiche Manning for Mr. Bellisle
Andrew Merrill for Alexander's Supermarkets
Nelson Raust for Hannaford Brothers
Attorney General
Workers' compensation - whether board erred in finding disability
unrelated to employment activities; whether injury was congenital in
nature and arose irrespective of employment activities
96-724 City of Manchester,* Appeal of
(workers' compensation appeals board)
Donald E. Gardner for city
Vincent Wenners for Estate of Thomas Grady
Attorney General
Workers' compensation - firefighter presumption; whether board
improperly applied statutory presumption in RSA 281-A:17, I; failure
to fully address requests for findings of fact and rulings of law
96-728 Woolf,* John, Appeal of
(workers' compensation appeals board)
Daniel C. Finbury for Mr. Woolf
Jeffrey Karlin for Process Engineering
Attorney General
Workers' compensation - whether board unreasonably ignored medical
documentation; whether board's findings regarding light duty work, and
conclusions regarding investigatory materials and petitioner's
encounter with respondent's doctor, were unreasonable
96-750 Massicotte, Josephine B. v. Matuzas,* Anthony James
Laura J. Brevitz Michael J. Di Cola
Property conveyance - action to set aside; failure of court to reform
deed to reflect what court found to be parties' intent at time of
conveyance; whether court erred in voiding 1981 conveyance rather than
reforming deed
96-751 State of NH v. Kirsch,* David W.
Attorney General Carol L. Hess
Kirk Y. Griffin
Aggravated felonious sexual assault, felonious sexual assault -
admission of prior bad acts; consideration of uncharged misconduct in
sentencing; whether sentence constitutes cruel and unusual punishment
or was unlawful; judicial vindictiveness in sentencing; unlawful
sentence enhancement based on defendant's exercise of his right to
jury trial
96-753 Bursey,* Faith R. v. Town of Hudson
Dorothy F. Silver John Ratigan
Property taxes - tax deed; whether party has legal interest in marital
real estate during divorce proceedings when spouse has title; whether
party who has no title but has legal interest in real estate pursuant
to RSA 458:16-a, I, has standing to seek injunction against tax
deeding for nonpayment of property taxes; failure of court to consider
equitable circumstances of case
96-758 Moulton-Garland,* Nancy v. Cabletron Systems, Inc.
Brian R. Barrington Steven E. Grill
Wrongful discharge - statute of limitations; whether federal court
dismissal for lack of federal jurisdiction bars refiling in State
court under RSA 508:10; whether federal pleadings are fact based so
that State legal theories of recovery are allowed without separate
"counts" under Federal Rule of Civil Procedure 8(a)(e); whether
summary judgment was in error when federal suit was dismissed without
prejudice to refiling in State court; whether defendant barred from
raising statute of limitations due to unclean hands
96-760 State of NH v. Massingham,* David A.
Attorney General James E. Duggan
Alfred Catalfo, Jr.
Driving after habitual offender certification - whether State can
bring two indictments for one single incident; denial of fair trial
due to multiple indictments; whether court erred in defining "driving"
to jury
96-763 State of NH v. Blair,* Robert
Attorney General James E. Duggan
Barbara Keshen
First degree murder - numerous issues including whether defendant must
prove insanity by more than preponderance, failure to excuse jurors
for cause, denial of additional peremptory challenges, allowing
psychiatrist to testify as to hearsay, denial of mistrial after State
vouched for its expert and expressed opinion as to defendant's guilt
during closing
96-816 Taylor-Boren,* Kathleen v. City of Concord, Andrew
L. Isaac, Wiggin & Nourie
Elizabeth Cazden Russell F. Hilliard for
Richard Y. Uchida Atty Isaac
William S. Orcutt for
Wiggin & Nourie
Attorney's fees - lien; whether attorney lien procedure provides for
court to determine contract and malpractice issues as part of lien
procedure, denying plaintiff right to have those issues decided by
jury in independent action; failure of trial judge to recuse herself;
whether court erred in assessing fees against plaintiff as sanction
for bad faith and indefensible claims; whether court erred in adding
10% interest to the fee and expense awards
97-001 Claremont School District, v. Governor of NH, President of
Franklin School District, NH Senate, Speaker of the
Lisbon Regional School NH House, Commissioner of
District, Pittsfield School NH Dept. of Education,
District, and Allenstown Chairperson of NH Board of
School District, Richard Education, NH Board of
T. Elliot, Rebecca S. Duffy, Education Members,
Meredith Fitzgerald, Naida Commissioner of NH Dept.
Osborne, Michael Viar, Revenue Administration,
Richard Elliot, Sr., Annette Treasurer of State of NH
Elliot, Robert Duffy, and State of NH
Patricia Duffy, John
Fitzgerald, Joan Osborne,
Peter Viar and Ann Viar
Andru H. Volinsky Attorney General
Arpiar Saunders
Theodore Comstock
John Tobin
Jed Callen
Patricia Quigley
Public education, property taxes - numerous issues including
definition of adequacy of education used by trial court, whether State
has complete responsibility for providing adequate education to
students; whether court ignored disparities in educational facilities,
materials and programs between petitioner districts and comparison
districts, failure of court to make certain findings, failure of court
to consider lack of equity in funding public education, consideration
of various factors relating to tax burden, denial of equal protection
claim; characterization of property tax as local tax.
Note: The court has consolidated 96-816 with 96-500.