New Hampshire Supreme Court
Cases Accepted - December 1998
98-239 State of NH* v. McLellan, Wayne
Attorney General Mary E. Maloney
Theft by unauthorized taking - whether defendant has
standing to challenge video surveillance of classroom;
whether video surveillance constituted search of
defendant's person; whether court erred in granting
motion to suppress when video surveillance was done
with consent of school principal
98-342 Clang,* Eric. R., Appeal of
(compensation appeals board)
Eric P. Bernard
James E. Owers, for Colortronix Corp.
Attorney General
Workers' compensation - whether claimant was laid off
for economic reasons alone; whether board erred in
finding claimant able to earn at least $8.00 per hour;
whether board erred in finding no medical evidence of
objective findings
98-349 Hauser,* Robert W. III, Appeal of
(compensation appeals board)
Gregory D. Robbins, for the claimant
Nelson A. Raust, for Perini Power Constructors, Inc.
Attorney General
Workers' compensation - cost of living allowances;
whether board correctly construed RSA 281-A:29; whether
board erred in considering long-term policy of
department of labor not disclosed to parties;
unconstitutional retrospective loss of vested rights as
a result of claimant's successful appeal of prior
denial of claim for social security disability benefits
98-416 State of NH,* Appeal of
(compensation appeals board)
Nelson A. Raust, for the State
Paul R. Kfoury, Jr., for the State
Shawn Sullivan, for the claimant
Attorney General
Workers' compensation - whether subjective complaints,
unsubstantiated by objective medical evidence,
constitute a physical manifestation pursuant to RSA
281-A:2, XI
98-442 Alacron, Inc. v. Swanson,* William,
Randall E. Wilbert William Watts,
James Holly,
Esther P. Swanson,
Edwin L. Swanson
Arnold Rosenblatt
Thomas J. Pappas
Thomas W. Aylesworth
Personal jurisdiction - two notices of appeal filed by
separate defendants raising similar issues; failure to
address unique personal jurisdictional defenses raised;
misapplication of standard by which a party's contacts
with forum state are measured
98-446 State of NH v. Patterson,* Ronald
Attorney General R. Peter Decato
Karen C. Borgstrom
Annulment - felony; denial of hearing; whether felony
drug-related conviction may be annulled 7 years or 10
years after date of conviction; whether court failed to
construe RSA 318-B:28-a as governing rather than RSA
651:5, III(e)
98-447 Alacron, Inc. v. Swanson,* William
Randall E. Wilbert Thomas J. Pappas
Thomas W. Aylesworth
Personal jurisdiction - misapplication of standard by
which a party's contacts with forum state are measured;
whether party purposely availed himself of NH law based
on employment contract directed at out-of-state
activities
98-454 Couture,* Dorothy, Appeal of
(compensation appeals board)
Daniel J. Harkinson, for the claimant
James E. Owers, for Cabletron
Lee C. Nyquist, for American Portrait Studios
Christine Friedman, for Dugal's Market
Attorney General
Workers' compensation - admission of physician's
previously undisclosed testimony differing from his
previous reports; whether disability arose out of and
in the course of employment; whether board erred by
ignoring its 1993 decision that claimant's carpal
tunnel condition arose out of and in course of
employment
98-455 State of NH v. Rattee,* Steven
Rattee,* Steven v. Commissioner, New
Richard R. Peppe Hampshire Department
for Rattee of Agriculture, City
Elizabeth Cazden of Concord
for Rattee Attorney General, for
State
Paul Cavanaugh, for City
of Concord
Agricultural preservation easement - whether
agricultural lands preservation committee has authority
to prohibit construction of single-family home under
agricultural preservation easement; construction of
deed; refusal to consider extrinsic evidence; whether
committee may act as adjudicatory body; unlawful taking
of property; whether two tracts on opposite sides of
State highway constitute a single site that cannot be
subdivided
98-456 First Bank National v. Jacques, Donald N.
Association* Gerard J. Boyle
David W. Rayment
William B. Pribis
Conversion, trover - whether court erred in dismissing
action for lack of endorsement on writ pursuant to RSA
509:8 where writ signed by plaintiff's attorney and
plaintiff offered to post reasonable security for
costs; failure to permit plaintiff to amend writ
98-458 Johnson,* Darren L., Appeal of
(personnel appeals board)
Michael C. Reynolds, for the petitioner
Attorney General
State employment - termination; whether termination as
correctional officer was illegal or unreasonable; due
process; whether board's findings and rulings were
adequate
98-472 State of NH v. Bader,* Seth
Attorney General Mark L. Sisti
First degree murder, conspiracy to commit first degree
murder - numerous issues including failing to strike or
exclude testimony of witness who asserted Fifth
Amendment rights; exclusion of extrinsic evidence
concerning possession of bomb-making materials; failure
to order production of witness's therapist records or
permit deposition of witness's case worker, foster
mother or therapist; denial of immunity for witness;
double jeopardy; refusal to voir dire jurors
98-473 Morrill,* Timothy, Appeal of
(board of education)
James F. Allmendinger
Kenneth Nielsen
Attorney General
Teaching certificate - revocation; reliance upon
uncharged conduct; whether alleged misconduct outside
of school (simple assault on a minor) has rational
nexus to fitness to teach; violation of right to free
expression of religion; whether petitioner is entitled
to immunity for having reported suspected abuse or
neglect
98-476 Douglas,* Charles G. III v. Douglas, Caroline G.
pro se pro se
William Chapman, for the
Associated Press
Theodore Kamasinsky, pro
se
Access to court records - whether court can make public
personal financial information in support affidavits
previously sealed in accordance with superior court
rule
98-496 Town of Hopkinton,* Appeal of
(board of tax and land appeals)
Russell F. Hilliard
Mark F. Puffer
Attorney General
Property tax exemption - whether board erred in
entertaining appeal that was not timely or properly
filed by taxpayer; whether Hopkinton State Fair
Association meets criteria for charitable organization;
whether use of property meets criteria for charitable
purposes; whether board erred in granting partial
exemption
98-518 In the Matter of Kathleen M. Fanning and Neal Fanning*
Randall E. Wilbert, for Neal Fanning
Francis T. Talty, for Kathleen Fanning
Divorce - numerous issues including failure to rule on
requests for findings and rulings of law; valuation of
business; failure to consider ability to pay in making
alimony award; whether court erred in awarding seven
years of alimony when respondent is 58 years old and
desires to retire; whether alimony award violates
public policy by acting as disincentive for recipient
to work part-time or remarry; cross-appeal - whether
court erred by reducing alimony; whether court erred by
ordering petitioner to pay loan after finding
respondent responsible for loan; reduction in mortgage
amount required to be taken by respondent in order to
secure petitioner's interest in the business
98-522 Klar, Theodore G.M. v. Mitoulas, George,
Marc Van De Water Christenson & Associates
Mortgage Company, Fleet
Finance and Mortgage,
Inc.*
George Mitoulas, pro
se
Thomas J. Pappas, for
Fleet
Thomas W. Aylesworth, for
Fleet
Kevin Fitzgerald, for
Christenson & Associates
Promissory note - numerous issues including whether
court erred in finding Fleet's agreement with Mitoulas
to use fire insurance proceeds to pay mortgage payments
constituted unreasonable collection efforts; lack of
expert testimony and error in assessing damages;
whether note required that properties be insured for
$375,000 each; whether insuring property after fire
would have been impossible; whether Christenson had
contractual right to notice that insurance proceeds
were being used to pay mortgage payments to Fleet
98-538 Liberty Mutual Insurance Company,* Petition of
Andrew W. Serell
Robert Shepard
Frederick Finberg
Attorney General
Workers' compensation - whether certain laborers are
"employees" or independent contractors; conflicting
decisions of department of labor
98-559 Medford Management v. Mitchell, Roger L.
Corp.,* Charla Bizios Labbe
J.M. Kilmartin & Son, Inc.
Robert L. Lucic
Subpoenas duces tecum - whether court erred in ordering
plaintiffs to produce business records as part of a
North Carolina divorce proceeding to which they are not
parties
98-564 John Hancock Distributors, Inc.,* Appeal of
(department of employment security)
Richard Thorner
Jennifer L. Murphy
Attorney General
Unemployment taxes -- employer status - whether
department erred in determining the appellant is an
employer; whether individuals performing services for
appellant are exempt from definition of employee under
RSA 282-A:9, III or IV(s), and are independent
contractors
98-576 Eckman Construction v. E.L.W. Builders,
Inc.* Inc.
Stephen J. Dibble Michael B. O'Shaughnessy
Indemnification contract - where two subcontractors
indemnify general contractor, and one subcontractor
settles indemnification claim and is assigned
contractor's indemnity rights against second
subcontractor, may first subcontractor enforce assigned
indemnity right against second subcontractor without
proving that general contractor sustained an actual
loss in the settlement of the underlying claim
98-580 Inresco Portfolios v. Denison, William
Limited,* George Spitzer, Lucy C. Hodder
Samuel Alexander
Geoffrey J. Vitt
Wage claim - default; whether court abused its
discretion by dismissing case based on pro se
plaintiffs' failure to attend structuring conference;
denial of motion for reconsideration
98-614 McCafferty,* George, Appeal of
(compensation appeals board)
Raymond J. Kelly, for the claimant
Joseph Murphy, for National Federation of Independent
Business
Attorney General
Workers' compensation - whether claimant proved injury
was work related aggravation of pre-existing condition;
whether board applied correct test in evaluating
medical causation evidence
98-615 State of NH v. Monroe,* Michael
Attorney General James E. Duggan
Barbara R. Keshen
Second degree murder - motion for new trial; whether
due process requires that defendant have opportunity to
be heard on issue of what access jury should have to a
tape recorder when jury has been provided with tape of
defendant's confession; what rule should trial court
apply when supplying a deliberating jury with an audio
tape playback device
98-616 Robbins, Sheldon M.D. v. Salem Radiology,* Robert
Jack Bryan Little Hannon, Robert Schall,
James Johnston
William R. Mason
Partnership - accounting; whether court erred in
ordering appraisal of partnership interest pursuant to
RSA ch. 304-A instead of pursuant to method in
partnership agreement; whether court erred by
confirming appraiser's report; failure to afford
defendants a hearing on appraiser's report
98-624 Wolfeboro Neck Property v. Town of Wolfeboro
Owners Association,* Mark H. Puffer
Bruce C. Beck
Edmund J. Boutin
Road acceptance - failure of town to accept roads;
whether town had special duty to see that subdivision
roads met town requirements; whether court erred in
imposing on plaintiffs adverse consequences of town's
having released bond and then denied road acceptance;
municipal estoppel; failure to grant mandamus where
town denied acceptance based on roads not meeting town
specifications when town previously certified that
roads met specifications and released bond
98-627 Kowalski, Robert J. v. Cedars of Portsmouth
Kenneth D. Murphy Condominium Association*
Jonathan S. Springer
Unjust enrichment - whether court erred in allowing
private cause of action under RSA chapter 331-A (real
estate practice act); whether court erred in granting
unjust enrichment claim where plaintiff did not allege
that it was unconscionable for defendant to retain fees
paid, where plaintiff received bargained-for services,
and no misrepresentations were made; cross-appeal -
failure to find that defendant's conduct was unfair
under Consumer Protection Act; whether claim under
Consumer Protection Act requires that defendant's
conduct be deliberately deceitful; failure of court to
make finding as to whether conduct was willful or
knowing
98-649 Wal-Mart,* Appeal of
(compensation appeals board)
Nelson A. Raust
Paul R. Kfoury, Jr.
H. Nina Bernard
Attorney General
Workers' compensation - whether compensation appeals
board attorney member can participate in case when he
is representing a client against one of the parties;
failure of board member to disclose representation of a
client against one of the parties; whether board may
disregard medical opinion based on RSA 281-A:38, II
absent objection on that ground; application of Range
of Motion Model rather than Injury Model contrary to
the Guides to the Evaluation of Permanent Impairment
98-661 Couture, Jennifer v. The Connecticut Indemnity
Andrew Dunn Company*
Timothy G. Kerrigan
Uninsured motorist coverage - application of
endorsement limited to vehicles principally garaged in
Tennessee to the question of whether coverage existed
for vehicle principally garaged in New Hampshire;
whether endorsement makes policy ambiguous; whether
material issues of fact were in dispute such that court
erred in granting summary judgment
98-668 State of NH v. Goodman,* Hassan
Attorney General James E. Duggan
Julian S. Nicholls
David M. Rothstein
Second degree assault, criminal threatening -
sufficiency of evidence that defendant acted under
circumstances manifesting extreme indifference to value
of human life; whether defendant opened the door to
admission of prior bad act evidence
98-697 Robbins,* Pamela, Michael v. Johnson, Bertha A.,
Robbins administrator of
Michael E. Chubrich Estate of Elizabeth
C. Robbins, Bertha
A. Johnson and
Susan Wright as co-
trustees and
beneficiaries
of Elizabeth C.
Robbins
Trust u/d/t January
4, 1996
David J. Braiterman
Wills - pretermitted hiers; whether the term "hier" as
used in will sufficient to satisfy RSA 551:10;
interlocutory appeal
98-698 Mello,* James, Petition of
Leonard D. Harden
James E. Duggan
Attorney General
Aggravated felonious sexual assault - whether double
jeopardy prevents retrial when juror who should have
been disqualified for cause is permitted to remain on
panel and jury deadlocks
98-725 Central New Hampshire Ambulatory Surgery Center,*
Orthopedic Professional Association, ZZZ Associates,
LLC, Appeal of
(health services planning and review board)
Lucy C. Hodder
Christopher J. Sullivan
Willard Martin
Attorney General
Certificate of need - whether ambulatory surgery center
construction project is subject to certificate of need
review by board; due process and equal protection
violations; violation of vested right to offer and
develop ambulatory surgery services; application of
wrong threshold amount in RSA 541-C:13, I(f); failure
to find what project will cost; sufficiency of evidence
98-750 Eberhardt,* Walter v. Aiken, Doris
John A. Rachel Kathleen Goulet
Landlord-tenant - eviction; whether court erred in
finding tenant not in violation of mobile home park
rules; whether eviction action was retaliatory
Note: The court has consolidated 98-455 and 97-840.