Judicial Branch, State of New Hampshire

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.