New Hampshire Supreme Court
Cases Accepted - July 1998
* denotes appealing parties
97-082 Williams,* James v. Commissioner, NH Dept. of
Mark Feigl Corrections
James E. Duggan Attorney General
Habeas corpus - whether to enhance a sentence
under RSA 651:6, I(c) the two required
imprisonments must be prior to the commission of
the third offense
97-488 State of NH v. Michaud,* David
Attorney General James E. Duggan
Sven D. Wiberg
Criminal trespass - exclusion of evidence of
victim's credibility, bias, motive to fabricate,
and pertinent character traits; sufficiency of
evidence
97-489 State of NH v. Michaud,* David
Attorney General James E. Duggan
Sven D. Wiberg
Simple assault - exclusion of evidence of victim's
credibility, bias, motive to fabricate, and
pertinent character traits; sufficiency of
evidence
97-665 State of NH v. Blease,* Steven
Attorney General Robert J. Moses
Simple assault - sufficiency of evidence that
contact was unprivileged; exclusion of evidence of
victim's character; whether minor witness was
competent to testify
97-714 State of NH v. Lehane,* Kevin
Attorney General Paul J. Haley
Stalking - ineffective assistance of counsel;
allowing State to amend complaint as to time;
denial of speedy trial; sufficiency of evidence;
whether stalking statute is void for vagueness
98-038 Amalgamated Transit Union, Local 717,* Appeal of
(public employee labor relations board)
Vincent A. Wenners, Jr. for petitioner
Diane Murphy Quinlan for Manchester Transit
Authority
Attorney General
Unfair labor practice - whether board erred in not
enforcing binding arbitrator's decision; whether
employer presented public policy ground;
sufficiency of evidence
98-061 State of NH v. Dixon,* Arthur
Attorney General James E. Duggan
Landya McCafferty
John Durkin
Aggravated felonious sexual assault - numerous
issues including improper jury instructions,
denial of bill of particulars, failure to exclude
evidence of other bad acts, whether minor victim
was competent to testify, refusal to permit use of
leading questions during parts of the cross-
examination of the victim
98-064 Warren,* Edward v. Town of East Kingston,
Keri J. Marshall Barbara Clark, Town
Clerk, Board of
Selectmen
Michael B. King
Municipal employment - petition for reinstatement
as fire fighter; whether court erred in dismissing
without hearing this equity action based upon the
court's earlier dismissal of a related civil
action; collateral estoppel
98-072 Mountain Valley v. Municipality of
Mall Associates* Conway and Conway
W. Wright Danenbarger Planning Board
Thomas J. Pappas Peter G. Hastings
for Town
Robert E. Murphy
Jr. for intervenor
Druker Co.
Municipal regulation - planning board appeal;
numerous issues including whether superior court
had jurisdiction in light of parallel appeal to
ZBA; application of exhaustion doctrine; whether
court erred in excusing noncompliance with
regulatory requirements; sufficiency of evidence;
proper interpretation of green space regulation;
refusal of court to permit plaintiff to present
evidence
98-093 Lappetito, Christina v. Lappetito,* Todd D.
William H. Hopkins Marilyn Billings
McNamara
Post-divorce proceedings - child support; whether
court erred in considering proceeds from sale of
asset as income; whether court erred in finding
defendant in default for not personally appearing
when he appeared through counsel and an attorney-
in-fact; failure to state facts supporting
deviation from child support guidelines
98-103 Linn,* Lucinda Kirk, Appeal of
(department of labor)
Donald L. Abrams for petitioner
Naomi L. Brown for petitioner
Michael J. Lambert for Beech Hill
Attorney General
Whistleblowers' Protection Act - whether employee
adequately advised employer of alleged violation
of law; whether employee was required to use
employer's grievance procedures
98-104 Seaver,* Jodi A., Appeal of
(department of labor)
Donald L. Abrams for petitioner
Naomi L. Brown for petitioner
Michael J. Lambert for Beech Hill
Attorney General
Whistleblowers' Protection Act - whether employee
adequately advised employer of alleged violation
of law; failure to allow additional evidence in
support of motion for rehearing
98-128 Perry, Chester I. v. Haley, Elmer C., Evelyn
Peter G. Hastings Haley, G. Malcolm
McNeil,* and
Gordon B. McNeil,
Trustee of the McNeil
Trusts
Fay E. Melendy for
Haleys
David J. KillKelley
for McNeils
Right-of-way - numerous issues including whether
plaintiff is bound by warranties in deed; whether
estoppel by deed applies; reformation of warranty
deed; failure to consider evidence that boundaries
were established by consent and acquiescence;
whether court erred in construing deed; whether
court erred by expanding right-of-way
98-130 Bursey, Faith R. v. Bursey,* Arthur H.
Dorothy F. Silver Paul J. Haley
Divorce - failure to hold evidentiary hearing;
whether marital assets and liabilities equitably
distributed; whether court abused its discretion
by ordering defendant to perform impossible tasks
98-162 Harrington, Annie v. Harrington,* Bradford F.
R. Edward m. Gordon
J.P. Nadeau
Divorce - where parties stipulated to ground of
irreconcilable differences, whether court erred in
admitting evidence of specific acts of misconduct
by defendant on issues of property distribution
and alimony
98-163 State of NH v. Croft,* Sean
Attorney General James E. Duggan
Kimberly A. Shoen
Aggravated felonious sexual assault, first degree
assault - motion for new trial; numerous issues
including ineffective assistance of counsel;
failure of prosecutor to correct inaccurate
testimony of witness; whether sequestration order
was violated; loss of exculpatory evidence
98-164 Mountain Valley v. Municipality of
Mall Associates* Conway NH, and
W. Wright Danenbarger Conway Zoning Board
of Adjustment
Thomas J. Pappas
Conway Zoning Board
of Adjustment
Peter G. Hastings
for Town
Robert E. Murphy
for intervenor
Druker Co.
Municipal regulation - zoning; whether failure to
file rehearing motion of ZBA's grants of special
exceptions precluded review under RSA 676:5;
whether plaintiff received notice of ZBA decision;
whether petition was procedurally inappropriate;
collateral estoppel
98-166 Grossman, Stewart v. Murray,* David W.,
F., Trustee of the individually and
Murray Creditors' d/b/a Erin Realty
Trust Company d/b/a Second
Lawrence B Gormley Leasing Company d/b/a
Charming Fare
Country Club d/b/a
Leased Restautant
Equipment Company
Robert E. Murphy, Jr.
Breach of contract - judgment notwithstanding the
verdict; whether reasonable jury could find
defendant was third party beneficiary to contract;
whether court erred in finding that plaintiff had
to know or have reason to know of defendant's
identity as third party beneficiary at the time of
formation of the contract rather than at some
later time
98-198 Thornblom,* Mary L. v. Wehringer, Cameron,
Eric W. Janson individually and as
trustee of the CKW
Trust,
Craig M. Wehringer,
Alison
D. Wehringer
J. Daniel Marr
Debt collection - whether court erred in applying
New York law to determine creditor's rights to
reach assets of a "self settled" trust; whether
creditor can reach assets of trust
98-201 Brady,* Shane, Appeal of
(board of tax and land appeals)
John G. Cronin for petitioner
David C. Wiley for Town of Hillsborough
Attorney General
Property tax abatement appeal - whether dismissal
of appeal due to failure of predecessor in title
to file inventory form violates State
Constitution; whether board has discretion to hear
tax abatement appeal when property owner's
predecessor in title did not file inventory form;
whether taxing authority must offer evidence that
it complied with RSA chapter 74 before appeal may
be dismissed
98-202 State of NH v. Larson,* David
Attorney General James E. Duggan
Nancy A. DeAngelis
Resisting arrest - failure to dismiss complaint
alleging defendant resisted arrest when it was
undisputed that defendant was being taken into
protective custody; failure to give jury
instructions submitted to assist jury in
understanding "knowingly" mens rea
98-204 DeVere, Peter v. State of NH Attorney
pro se General*
Attorney General
Right-to-Know Law - Driver Privacy Act; whether
request by private citizen for personal
information in motor vehicle records for use in
conducting independent research purportedly
related to legislation is "for use in official
business" as intended by RSA 260:14, III
98-213 Town of Nottingham v. Bonser, Robert A., Cedar
Waters Village, Inc.
Mark Gearreald William Dewhurst, for
intervenor Cedar Waters
Village Partnership*
Mary L. Parks Bonser,*
pro se
Terry L. Bonser,* pro se
Judgments - numerous issues including failure to
distinguish prior partnership from current
partnership; failure to recognize current
partnership as a subsequent transferee under RSA
545-A:8; whether court erred in ruling on issue of
fraudulent conveyance without notice or hearing
sua sponte; whether court erred in sua sponte
regranting previously vacated attachment; whether
contempt fines and penalties survive death of
contemnor; comity with federal court; whether
court has conflict of interest; whether
partnership real estate is subject to levy to pay
obligations of its prior owners; due process
98-231 Concord School District,* Appeal of
(public employee labor relations board)
Edward M. Kaplan for petitioner
Timothy A. Gudas for petitioner
Steven R. Sacks for Concord Education Association
Attorney General
Unfair labor practice - whether collective
bargaining agreement is susceptible of
interpretation covering a non-tenured teacher's
attempt to grieve his non-renewal; whether board
ignored uncontradicted evidence that the parties
had never considered the non-renewal of a non-
tenured teacher to fall within CBA's grievance
procedure
98-237 State of NH v. Hall,* Gregory
Attorney General James E. Duggan
Joachim H. Barth
Attempted felonious sexual assault - whether
defendant is entitled to new trial based on
prejudice resulting from prosecutor's offensive
personal attack on defense counsel; sufficiency of
evidence
98-245 Morse,* Richard v. Webtron Corp.
Brian C. Shaughnessy Eric A. Kane
Edward F. Patch for
intervenor CIGNA
Workers' compensation - lien; whether lump sum
settlement included carrier's workers'
compensation lien; whether court erred in
interpreting agreement
98-255 Goode,* Henry F. Jr. v. Buckley, Michael L.
John A. Curran CPA,
Office of the LBA,
State of NH
Attorney General
Right-to-Know Law - denial of access to documents
prepared for but not incorporated or referenced in
final report of audit conducted by Office of
Legislative Budget Assistant; application of
deliberative process privilege; whether prior
disclosure of draft audit reports waived
privilege; denial of attorney's fees
98-257 Bergeron,* Robert v. State Farm Fire and
and Virginia Casualty Co.
Gary H. Bernier Barry M. Scotch
Homeowner's insurance - whether dam was a
"building" under terms of policy; whether dam
collapse was caused by an "explosion" or result of
"hidden decay"; admission of testimony and slide
presentation from expert developed after expert's
deposition without supplementing deposition
responses or other disclosure prior to trial
98-258 Staffing Network,* v. Pietropaolo, George
Inc. Clifford Gallant, Jr.
Robert S. Stephen
Personal jurisdiction - whether long-arm
jurisdiction over and minimum contacts with New
York defendant exist arising out of relationship
governed by NH employee leasing statute; whether
decision violates NH Constitution by depriving
plaintiff of reasonable access to courts
98-261 Laferrera, Rosemary v. Laferrera,* Joseph
Gillian Morrison Michael J. Iacopino
Domestic violence - whether family court erred in
awarding spousal support as part of domestic
violence final order absent request in petition
and absent evidence of parties' financial
circumstances; exclusion of audio tapes; denial of
continuance to obtain counsel after defendant was
allegedly assaulted by court and law enforcement
personnel during recess of final hearing
98-277 Baybank v. Catamount Construction,
Inc.,* Sunset
Construction
Co., Eugene R. Connor,
M. Patricia Connor,
John H. Connor, Marilyn
A. Connor
Kevin M. Fitzgerald Marc L. Van De Water
Execution - whether prior decision of supreme
court permits partnership interests to be sold at
sheriff's sale; whether request for foreclosure of
limited partnership interests is premature;
whether counsel's representation that upon
foreclosure a fraudulent conveyance action will be
dismissed with prejudice is binding upon
plaintiff; whether plaintiff is prohibited from
foreclosing while simultaneously attempting to
dissolve limited partnership
98-281 State of NH v. Kivlin,* Nancy
Attorney General James E. Duggan
Brian McEvoy
Possession of cocaine - denial of motion to
suppress; whether RSA 172-B:3 is facially invalid;
whether court erred in failing to either dismiss
case or order immunity be granted to defense
witness; exclusion of evidence
98-283 Lee, Ross v. Christensen,* Steven C.
Laura Brevitz Charles G. Douglas, III
Landlord-tenant - whether landlord is liable for
multiple days of damages under RSA 540-A and 358-A
when tenant fails to pay rent, is served with a
notice to quit, and fails to attend meeting with
landlord when landlord is willing to provide
access to the premises; whether award of $10,000
damages is excessive; failure to provide jury
trial; cross-appeal - failure to award double or
treble damages; failure to award damages for
defendant's prior willful entry into plaintiff's
apartment; failure to award damages for three days
after defendant changed the locks on plaintiff's
apartment; failure to award attorney's fees and
costs in their entirety
98-284 State of NH v. Leiper,* Nicholas
Attorney General James E. Duggan
Darla S. Sedgwick
Possession of psilocin mushrooms, possession of
marijuana with intent to distribute - denial of
motion to suppress results of illegal search of
defendant's backpack during execution of search
warrant at a third party's residence
98-292 AMRESCO New England, v. State Line Excavators,
L.P. d/b/a/ AMRESCO Inc.,* Barry A.
New England, LP Weinhold, Virginia L.
Weinhold, Richard J.
Russell, Jr., Pamela
M. Russell
AMRESCO New England, v. Weinhold, Barry
L.P. d/b/a AMRESCO A., Richard
New England, LP J. Russell, Jr.,
Raymond W. Taylor,
Clerk of Rockingham
County Superior
Court, as trustee
Weinhold, Barry A., v. AMRESCO New England, L.P.
Virginia L. d/b/a AMRESCO New
Weinhold, Richard England LP
J. Russell, Richard F. Johnson
Jr., Pamela M. for State Line,
Russell Weinhold, and Russell
Gregory Wirth
for AMRESCO
Guaranty - whether loan documentation violated
State finance charge disclosure requirements;
whether FIRREA and the D'oench Duhme doctrine
barred defendants from attacking validity of
mortgage; whether assignee of FDIC is entitled to
federal statutory extension of statute of
limitations; whether loan guaranty applied to
loans in question; cross-appeal - denial of
petition for reformation
98-293 Hartford,* Derek v. Acadia Insurance Company
Joseph F. McDowell Robert M. Daniszewski
III
Uninsured motorist coverage - whether receipt of
workers' compensation bars recovery of uninsured
motorist benefits; whether employer's automobile
insurance carrier is "employer" under RSA 281-A:8;
whether vehicle is "uninsured" when liability
coverage otherwise applicable is unavailable to
plaintiff; whether automobile insurance carrier is
obligated to provide uninsured motorist benefits
to insured where the employer has assumed dual
capacities as provider of workers' compensation
coverage and uninsured motorist benefits
98-295 State of NH v. Thompson,* Shane
Attorney General James E. Duggan
Theodore Barnes
Burglary, armed burglary, felon in possession of
firearm - sufficiency of evidence; denial of
investigative funds; denial of deposition of
victim and victim's father; failure to suppress
victim's identification of defendant from photo
array
98-302 State of NH v. Pandolfi,* William
Attorney General James E. Duggan
David W. Ruoff
Aggravated felonious sexual assault, sexual
assault - denial of depositions and discovery;
refusal to permit cross-examination of victim
regarding alleged violence perpetrated against her
by third person; whether defendant opened the door
to testimony; failure to grant mistrial when
witness testified of her fear of defendant;
allowing State to argue to jury that victim must
be telling the truth because defendant presented
no reason why she would lie
98-315 Turchioe, Thomas M. v. West,* Christie M.
Kevin W. Miner Mike J. Demers
Child support - whether court erred in calculating
support under guidelines; whether court erred in
requiring that reimbursement for pre-temporary
child support be invested for future college
expenses; failure to find willful underemployment
or non-reported income
98-318 Thibodeau,* Edward v. Red's of Jaffrey, Inc.,
Monadnock Disposal
Service, Inc., Eric
Christian, John Peard,
Norman Peard
Thibodeau,* Edward v. Monadnock Disposal
and Sandra Service, Inc.
Thibodeau,* Edward v. Red's of Jaffrey,
and Sandra Inc., John Peard,
Norman Peard, Eric
Christian
Gary A. Braun Thomas Mullins, for
Eric Christian
Thomas Irwin, for
Monadnock Disposal
Thomas W. Kelliher,
for Red's of Jaffrey,
Inc.
Dean Eggert, for
John Peard and
Norman Peard
Negligence - employment-related injury; whether
RSA 281-A:8, I(a) immunizes Red's of Jaffrey,
Inc., John Peard and Norman Peard from liability;
whether third party must engage in affirmative
conduct with respect to work place safety to owe a
duty to provide safe work place; denial of motion
to amend to include tort claim against John Peard
in his capacity as officer, director, or manager
of Monadnock
98-320 In re Trust of Thomas J. McIntyre
Donald A. Burns, for the trustees
John P. Chandler, for John C. McIntyre* and Joan
M. Tilton*
Duncan J. Farmer, for Myrtle C. McIntyre
Susanne M. Weldon, for Myrtle C. McIntyre
Trust account - whether upon sale of real estate,
trustees of testamentary trust should apportion
proceeds between income to be paid to life
beneficiary and principal to be held for
remaindermen, and allocate part of the trustee's
fees and expenses to principal
98-321 Lessard,* Rejean v. Clarke, Ruth Mary
Lambert,* Lucien, v. Clarke, Ruth Mary
Administrator of Jill Blackmer
the Estate of
Francoise Lambert
Roger B. Phillips
Choice-of-law - automobile accident; whether
Ontario's no-fault damages law applies to
automobile accident occurring in New Hampshire
where all parties were residents of Ontario;
interlocutory appeal
98-333 State of NH v. Davidson,* Lee
Attorney General James E. Duggan
Lucy A. Martin
Driving after certification as a habitual
offender, driving while intoxicated, disobeying a
police officer - whether officer had reasonable
and articulable suspicion that defendant had been,
was, or was about to be engaged in criminal
activity sufficient to justify stopping
defendant's car
98-344 Miami Subs Corporation* v. Murray Family Trust
Robert R. Lucic and
John F. Dienelt Kenneth Dash
Partnership
Robert E. Murphy,
Jr.
Breach of fiduciary duty - damages; whether court
erred in awarding $200,000 damages
98-355 Cotter, Pamela v. Wright,* Wayne A.
Nancy Vaughn Gabriel Nizetic
Domestic violence - whether marital master has
authority to conduct proceedings under RSA 173-B;
whether process of reviewing master's
recommendations violates due process
98-444 Hodges Development v. Holden Engineering &
Corp. Surveying, Inc.*
Craig Staples Edward C. Dial, Jr.
Landlord-tenant - eviction; whether demand for
rent exceeded actual rent due; whether second
notice to quit created a new tenancy and quit
date; whether court erred in ordering defendant to
pay rent retroactively under RSA 540:25