New Hampshire Supreme Court
Cases Accepted - April 1998
* denotes appealing parties
97-458 In re Justin D.*
Alan J. Cronheim for Justin D.
Stephen J. Schulthess for Justin D.
Attorney General
Possession of dangerous weapon at time of arrest -
juvenile; sufficiency of evidence; whether juvenile was
arrested; whether officer had probable cause to arrest;
whether RSA 159:15 is unconstitutional as applied in
that it does not give notice that rolls of coins are a
dangerous weapon
97-725 Canty,* John F. Jr., v. Hopkins, Natalie A.
individually and as John J. Coffey
administrator
pro se
Petition for equitable title - reformation and
constructive trust; whether court committed plain
error; whether real estate held in joint
tenancy/survivorship is includable in probate estate of
deceased joint tenant; whether probate court can reform
deed or impose constructive trust without jurisdiction
over the res, the legal title-holder, or the equitable
title-holder; res judicata and collateral estoppel;
whether plaintiff was removed or divested of standing
on behalf of his father's estate
97-745 Truman,* Frederick, Appeal of
(workers' compensation appeals board)
John P. Kalled for the petitioner
Thomas Kelliher for State Dept. of Transportation
Attorney General
Workers' compensation - whether RSA 281-A:32, IX
permits a permanent impairment claim for spinal column
when maximum medical improvement was not reached until
after July 1, 1989; whether 1987 permanent impairment
award for legs bars spinal column claim; whether
petitioner entitled to permanent impairment award for
additional impairment identified after 1987 award
97-760 Shiretown Realty Trust,* v. Robinson, Helen, Town of
Joseph J. Fiumara, Barrington, Harold D.
Trustee Caldwell, the unknown
Joseph J. Fiumara, pro se heirs of Harold D.
Caldwell
Ronald Willoughby for
Ms. Robinson and Mr.
Caldwell
John Dolan for the Town
Barrington
Quiet title petition - tax sale; failure to accord
weight to evidence that defendant Robinson denied
ownership of property; whether equities favored
petitioner, a bona fide purchaser for value without
notice of claims by defendant Robinson; estoppel;
failure to award damages to plaintiff due to town's
failure to give valid tax deed; whether tax sale
against owner unknown was unreasonable
97-779 Caterpillar Inc.,* v. New Hampshire Department
Caterpillar Financial of Revenue Admin-
Services Corp., istration and NH Com-
Solar Turbines, Inc. missioner of Revenue
William F. J. Ardinger Attorney General
for Caterpillar, Inc.
Jerome B. Libin for
Caterpillar Financial
Services Corp.
Business profits tax - unitary business; whether
business profits tax violates foreign commerce clause
of U.S. Constitution
97-824 Boilard, Steven v. Niemela,* Kathy
Barry Harkaway Janine Gawryl
Child custody - modification; whether court applied
incorrect legal standard
97-839 Landry,* Thomas, Appeal of
(workers' compensation appeals board)
Brian C. Shaughnessy for the petitioner
Dean Eggert for the State
Attorney General
Workers' compensation - application of incorrect legal
standard for medical causation; sufficiency of
evidence; failure to exclude expert witness who
petitioner could not depose due to fee requirement that
exceeded fee charged to employer
97-840 Rattee,* Steven, Petition of
(agricultural lands preservation committee)
Richard R. Peppe for petitioner
Elizabeth Cazden for petitioner
Paul Cavanaugh for City of Concord
Attorney General
Agricultural lands - whether committee has authority to
prohibit construction of single-family home under
agricultural preservation easement; whether deed
prevents construction of home; whether committee may
act as adjudicatory body; placement of burden of proof;
whether parcels on opposite sides of road are single
parcel; sufficiency of evidence
97-843 Thomas,* Robert J. v. Finger, George R. and
Gerald F. Giles Priscilla A.
Marc A. Pinard
Mechanic's lien - artesian well; whether defendants
were bona fide purchasers for value
97-844 Herman, Nancy & Kelly v. Tokena Corporation
Butler
97 Eddy Associates, Inc.,v. Tokena Corporation and
Nancy Herman, Kelly But- Thomas DeBlois
ler and Kim Bevilacqua
Donald L. Lader, Jr. Dean B. Eggert for Tokena
for the plaintiffs Corporation and Thomas
DeBlois
Dissolution of closely-held corporation, breach of
fiduciary duty - refusal to allow voluntary withdrawal
of petition to dissolve; award of damages to minority
stockholder for actions of majority stockholders and
directors taken in normal course of business; whether
doctrine of unclean hands requires actual damages
97-849 Daggett,* Richard v. Two Daves Auto, Inc.,
and Laura Tovey and Dave Janik
pro se pro se
Mechanic's lien - auction sale; whether defendant had a
mechanic's lien on automobile; whether defendant
complied with all statutory requirements for auction
sale of automobile; failure to permit plaintiffs to
seek alternative relief of money damages
97-871 Estate of Elsie Huth, In re
David C. Engel for Joan V. Rowe*
Attorney General
Probate estate - claim for services; whether services
provided to deceased constituted continuous contract
for services so that statute of limitations did not
begin to run until death of deceased
97-872 Rockingham Properties II,* Appeal of
(board of tax and land appeals)
Joseph M. Kerrigan for petitioner
Steven A. Clark for Town of Derry
Attorney General
Property tax abatement - whether board has authority to
dismiss abatement appeal due to failure to adequately
specify reasons; whether petitioner failed to
adequately specify reasons; whether town knew reasons
for seeking abatement
97-875 Smith,* Eleanor, v. Shepard, David and
Katherine Whitcomb, Alice Shepard
and Bernice Ford Charles E. Dibble
Patrick T. Hayes
Constructive trust - denial of rehearing; sufficiency
of evidence; grant of relief beyond scope of relief
requested; failure to properly notice hearing; whether
court abused its discretion by engaging in attacks on
plaintiffs' counsel; failure to consider effect of
previous court orders in determining whether plaintiffs
acted in good faith
97-885 State of NH v. Hoag,* Kenneth
Attorney General James E. Duggan
Jane-Holly Weintraub
Charles A. Bookman
Imposition of suspended sentence - whether conditions
of suspended sentence provided sufficient notice of
conduct court intended to proscribe
97-887 Thomas Tool v. Town of Croydon*
Services, Inc. K. William Clauson
R. James Steiner
Tax lien procedures - whether tax lien procedures under
RSA 80:58-:87 are unconstitutional unless limited to a
taking of the property only to the extent necessary to
pay the tax debt, interest, costs and fees, and a
reasonable penalty; laches
97-890 State of NH v. Danforth,* Harvey
Attorney General Jonathan R. Saxe
Aggravated felonious sexual assault - motion for new
trial; whether trial counsel's failure to object to
admissibility of taped statements of victim, request
limiting instruction, object to improper cross
examination, or object to improper closing argument
constituted ineffective assistance of counsel
97-911 Johnson,* Stephen, Appeal of
(workers' compensation appeals board)
Vicki S. Roundy for claimant
Paul L. Salafia for employer
Attorney General
Workers' compensation - whether 1996 medical charges
incurred were related to 1990 work-related back injury;
failure of board to accord substantial weight to
opinion of treating physician
97-912 Brewster,* Benjamin v. Town of Amherst, Amherst
and Rosemary Planning Board
Malcolm R. McNeill, Jr. William R. Drescher
John V. Dwyer
Municipal regulation - site plan; whether due process
violated where notice of revocation cited two specific
reasons but board and court relied on other alleged
incidents, or where board limited plaintiffs to four
minutes to demonstrate why site plan approval should
not be revoked; whether alleged violations of site plan
were proved and material
98-002 State of NH v. Blackmer,* Paul
Attorney General James E. Duggan
Gabriel Nizetic
Conspiracy and possession with intent to sell
controlled drugs - numerous issues including mens rea
for conspiracy; whether jury must agree on which of
three alleged acts in furtherance of conspiracy was
committed; speedy trial violation; whether defendant
had standing to challenge search
98-043 Lebanon School District,* Appeal of
(public employee labor relations board)
Michael S. Elwell for Lebanon School District
Steven Sacks for NEA-NH
Attorney General
Unfair labor practice - elimination of food service
employees and subcontracting; managerial prerogatives;
whether contracting of food services is prohibited or
permissive subject of bargaining; whether elimination
of food service personnel was layoff authorized in
collective bargaining agreement; application of CBA to
period before it became effective; whether union waived
right to negotiate subcontracting of food services;
whether parties agreed to defer issue of subcontracting
98-045 Edward N. Herbert and Associates, Inc.,* Appeal of
(board of licensure for professional engineers)
David M. Groff for petitioner
Attorney General
License renewal - whether board erred in denying
petitioner's application to renew its license to
practice engineering
98-062 Petition of Caledonian-Record Publishing Co.,* In re
Claude T. Buttrey for petitioner
Philip H. White for petitioner
Carolyn S. Earle for petitioner
Peter D. Anderson for defendant Wendy Manning
Attorney General for the State
Access to court documents - failure to give notice to
press or hold hearing prior to sealing court records in
criminal case; whether court erred by denying
newspaper's request to unseal all records; first
amendment
98-070 Estate of Richard Van Lunen,* Appeal of
(board of tax and land appeals)
Alexander S. Buchanan for petitioner
William R. Drescher for Town of Amherst
Attorney General
Land use change tax - failure of board to consider all
subdivision lots as part of its decision; failure to
properly apply 1991 amendments to RSA 79-A:7; failure
to take into account Cub 308.1; whether assessments
were erroneous under current use law
98-078 Allard,* Claude, Appeal of
(personnel appeals board)
Michael C. Reynolds for SEA of NH, Inc.
Attorney General
State employment - bumping rights; denial of full
evidentiary hearing; whether petitioner was qualified
to bump into the position of college professor of
electro-control technology
98-079 Sundberg, Elaine M., v. Greenville Board of
Douglas J. Sundberg, Adjustment, Town of
Kristen G. Sundberg Greenville, and
Theo A. de Winter*
de Winter,* Theo A. v. Town of Greenville
Matthew W. Glavey for Carol A. Rolf for town
the Sundbergs William R. Drescher for
Charles G. Douglas III town
for Mr. de Winter
Municipal regulation - whether welding supply business
is a customary home occupation; failure of court to
hold evidentiary hearing after finding certified record
deficient; whether appeal of variance was moot
98-080 Keeler,* Karl and Sharon v. Banks, Ralph
Andrew D. Dunn Kenneth Bouchard
Negligence, loss of consortium - motorcycle accident;
failure to set aside verdict for defendant and order
new trial
98-082 Brown,* Victoria and Gary v. Lally, Lisa
Stephen E. Borofsky William S. Orcutt
Negligence - automobile injury; denial of motion to set
aside verdict for defendant where liability established
by summary judgment; inflammatory argument by counsel;
failure to poll jury; denial of requested jury
instructions
98-084 Bomba,* Stanislow and v. Neenah Foundry Company
Margaret Andrew D. Dunn
Richard C. Moquin
Products liability - hatch cover; whether 8-year
limitations period in RSA 508:4-b applies to defective
product that is ultimately affixed to real estate;
whether RSA 508:4-b violates equal protection
98-085 Cote,* Louis P. Jr., Appeal of
(workers' compensation appeals board)
Gary L. Casinghino for claimant
Andrew A. Merrill for employer
Attorney General
Workers' compensation - denial of cost of living
adjustment to temporary total disability benefits for
self-employed worker
98-099 Snedeker,* David v. Snedeker, Arlene
Pamela E. Phelan Barry I. Harkaway
Divorce - child support; failure of court to give
deduction for standard deductions for federal income
tax and FICA as required by RSA 458-C:2, VI and 458-
C:3, II(a) in calculating child support
98-107 State of NH v. Bezanson-Perkins,* Joshua
Attorney General James E. Duggan
Julia M. Nye
Felonious sexual assault - sentence; admission at
sentencing of unsubstantiated claims of prior
misconduct
Note: The court has consolidated 97-884 and 97-885.