Judicial Branch, State of New Hampshire

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.