Judicial Branch, State of New Hampshire

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