New Hampshire Supreme Court
Cases Accepted - March 1998
* denotes appealing parties
95-726 State of NH v. Prado,* Scott F.
Attorney General pro se
Annulment of arrest record - whether court abused its
discretion by denying request to annul arrest for first
degree murder after charge was nol prossed
96-596 Diversified Financial v. Lanzillotti,* Louis
Systems, Inc. J. Andrew Manning
Fred J. Foreman
Promissory notes - statute of limitations; whether
federal statute of limitations under FIRREA accrues to
benefit of assignee of FDIC
97-631 Trachy,* Stuart D., v. LaFramboise, Richard
Kenneth L. McDonnell, Tony Soltani
Larry J. Boucher,
Commissioners, and
Chester L. Jordan, Sheriff
George A. Stewart
County employees - discipline; whether discipline
imposed by sheriff upon deputy sheriff is subject to
review by county commissioners; estoppel; construction
of sheriff's written policies
97-633 Blevens,* Kenneth E. Sr., v. Town of Bow
Christopher J. Blevens, Gary Richardson
Kenneth E. Blevens Jr.
John E. Laboe
Taking of property, slander of title, denial of due
process, recovery of attorney's fees - denial of jury
trial; failure to construe all well-pleaded allegations
in favor of plaintiffs; whether court erred in finding
plaintiffs' conduct to be supervening cause; res
judicata; failure of trial judge to recuse herself;
cross-appeal - whether 1977 subdivision plan
constituted a consolidation of disputed parcel of land
as a matter of law; whether November 15, 1991, letter
was a "decision" for purposes of RSA 677:15, I
97-666 Hannigan,* Thomas, v. City of Concord,
Mary E. Hannigan, Concord Country Club,
Russell R. Matthews Inc.
William J. Donovan Jeffrey S. Cohen for
Thomas H. Hannigan, Jr. Concord Country Club
Paul F. Cavanaugh for
City
Municipal regulation - zoning; whether proposed
maintenance facility is permitted accessory use in
residential zone; whether criteria met for special
exception for access roadway; whether frontage is
adequate for proposed maintenance building; whether
adjacent brook is protected under city streambank and
shoreline district regulations
97-693 Indelicato, Virginia, v. Christmas Mountain
Trustee of Christmas Condominium Owners
Mountain Realty Trust, Association
UMLIC-FIVE Corp.* Edward D. Philpot, Jr.
Arthur W. Hoover
for trustee
Clifford P. Gallant, Jr.
for UMLIC-FIVE Corp.
Security interest - priority; whether court erred in
not ordering receiver to pay certain monies to secured
party rather than allowing portions of said monies to
be paid to satisfy an unsecured judgment
97-754 Bergeron,* Raymond, Appeal of
(workers' compensation appeals board)
Charles B. Doleac for the petitioner
Patrick C. McHugh for Richards & Sons, Inc.
Attorney General
Workers' compensation - failure to determine if 1994
disability directly and naturally resulted from 1985
work-related injury; improper application of legal and
medical causation tests; whether left hip debilitation
resulted from preexisting condition or from cumulative
trauma; whether claimant bore burden of proving 1985
injury caused 1994 disability
97-773 Roberts,* Catherine, Appeal of
(workers' compensation appeals board)
Vicki S. Roundy, for the petitioner
James E. Owers, for University of New Hampshire
Attorney General
Workers' compensation - whether board erred in reducing
claimant's benefits; whether board erred in finding
claimant no longer temporarily totally disabled;
whether claimant's inability to find work supported her
claim of total disability
97-792 Lutkus, David V. v. Lutkus, Linda J.
Lutkus, David V. v. Chamberlain, David E.
Rodney L. Stark, for Thomas Quarles, Jr.,
David Lutkus for Linda Lutkus
Frederic T. Greenhalge,
for Blue Cross/Blue Shield*
Insurance - subrogation; failure of trial court on
remand to determine who bore burden of producing
insurance contract; failure to rule on requests for
findings and rulings; failure to consider existence of
health insurance policy; failure to award interest
97-819 Averill,* Richard v. Cox, Paul R., Burns,
Charles E. Dibble Bryant, Hinchey, Cox &
Rockefeller P.A.
Jack B. Middleton
Removal of funds from attorney's trust account,
attorney's fees - whether writ states tort claim that
defendants illegally removed funds from plaintiff's
trust account or otherwise breached duty to plaintiff;
failure to require defendants to prove that arbitration
clause in fee agreement was fair and that plaintiff had
full knowledge and capacity to understand his rights;
whether Consumer Protection Act applies to attorneys in
this case; denial of access to legal files and trust
account information in defendants' possession
97-820 Bowden,* Craig J. and v. Commissioner, NH
Chrisinda Department of
John P. Kalled Transportation, State
of New Hampshire
Attorney General
Defective State highway - whether notice requirement of
RSA 230:80, I(a) requires written notice prior to
injury; whether action against State for injuries
resulting from defective highway is subject to
heightened pleading requirements; whether RSA 230:78
and RSA 230:80, I(b), (c) violate equal protection or
due process; whether court erred in dismissing
plaintiff's amended complaint
97-848 Aranosian Oil Company v. State of NH*
William J. Donovan Attorney General
Eminent domain - damages; whether court misapplied rule
that State has burden of proof; whether court erred in
adopting damages estimate of expert whose opinion was
based on assumption shown to be false
97-862 Tennessee Gas Pipeline v. Town of Hudson
Company* Robert Upton II
Margaret H. Nelson
Property tax abatement - natural gas utility; whether
plaintiff demonstrated value of property was
approximated by net book cost; in adopting replacement
cost less depreciation approach, did court err by not
making allowance for effects of restrictive regulation
and competitive pressures; whether town's policy
regarding assessments of easements is unconstitutional;
double assessment; whether appraiser's violation of RSA
21-J:11 invalidated town's assessment; whether
assessment was inconsistent with law forbidding spot
assessments
97-868 State of NH v. West,* William
Attorney General Robert A. Stein
Simple assault - probation; whether court erred in
enforcing probation condition requiring defendant to
undergo and pay for sexual offender treatment absent
adjudication that he committed sexual offense; cruel
and unusual punishment; whether probation condition
breached plea agreement or impermissibly modified
sentence; whether requirement that defendant waive
confidentiality of sexual offender evaluation violates
right against self-incrimination
97-877 Hobin,* Ross T. v. Coldwell Banker
Residential
S. David Siff Affiliates, Inc.,
Gerald J. Caruso Hunneman Real Estate
Corporation d/b/a
Coldwell Banker-
Hunneman & Co., J.C.
Associates, Inc. d/b/a
Caulfield Joycelyn Agency
Steven Grill for Coldwell
Banker
John Dunham for Coldwell
Banker
Stephanie Bray for
Coldwell Banker-
Hunneman
Barry S. Fischer for J.C.
Associates
Breach of franchise agreement - whether petition states
cause of action for breach of covenant of good faith
and fair dealing; whether defendant breached contract
by failing to follow internal procedures in locating
franchises; whether petition states cause of action for
misrepresentation or estoppel, or under RSA 358-A:2,:10
97-878 Douglas, Charles G. III v. Douglas,* Caroline G.
pro se pro se
Divorce - failure to allow defendant to obtain
substitute counsel after court disqualified attorney of
record; whether party entitled after default to notice
and opportunity for hearing on equitable distribution
of assets; consideration of financial affidavit and
proposed decree not served upon opposing party; whether
recused judge may appoint his own successor
97-882 Cecere, Beth v. Aetna Insurance Company*
William E. Aivalikles Stephen J. Dibble
Francis G. Murphy
Uninsured motorists insurance - petition to compel
arbitration; whether insurance contract is governed by
Massachusetts or New Hampshire law; whether RSA 264:15,
I, applies to void uninsured motorist policy limits
agreed to by the parties and allowed under
Massachusetts law
97-908 Currier,* James and v. Amerigas Propane, L.P.
Rosemary William Saturley
Francis G. Murphy Jr.
Negligence - whether limited partnership is entitled to
benefit of exclusive remedy provision of workers'
compensation law with respect to ultra-hazardous
activities where all management-related
responsibilities were delegated to general partner;
whether limited partnership is an "employer" under
workers' compensation statute
98-005 State of NH v. Norton,* Danny
Attorney General James E. Duggan
David M. Rothstein
Linda J. Slamon
Aggravated felonious sexual assault, felonious sexual
assault - admission of victim's prior consistent
statements; whether defendant opened the door to
admission of prior bad acts; sufficiency of evidence
98-020 State of NH v. Cameron,* Nicholas
Attorney General Jeffrey Denner
Clare M. Hinkley, GAL Michael J. Iacopino
Mark M. Rumley
Felonious sexual assault - exclusion of evidence
regarding victim's tendencies to brag about her sexual
history; denial of request for curative instruction
after prior bad acts testified to; failure to instruct
family of victim to cease emotional displays
98-024 Conceptronics, Inc. v. Vitronics Corporation,*
George R. Moore James J. Manfield, Jr.
David P. Eby Gary Ellis Hicks
James V. Ferro, Jr.
Douglas Ingersoll
Malicious prosecution, abuse of process - subject
matter jurisdiction; whether jurisdiction is vested in
federal court where plaintiff's right to relief depends
on resolution of substantial question of federal patent
law
98-030 State of NH v. Ortiz,* Fernando
Attorney General James E. Duggan
Ronald R. Bessette
Assault by a prisoner - sufficiency of evidence of
mental state; use of illegally obtained statements made
by defendant at sentencing
98-033 King-Jennings,* Darlene, v. Liberty Mutual Insurance
individually and as Company
parent and next friend James E. Owers
of Austin D. Jennings
and Hallie S. Jennings
Mark D. Wiseman
Workers' compensation and employers liability policy -
whether policy unambiguously provided no coverage for
sole proprietor's fatal work-related injury; exclusion
of extrinsic evidence showing that the policy was
ambiguous; whether court erred in placing burden of
proof on plaintiff to establish coverage
98-035 State of NH v. Warren,* Theodore
Attorney General James E. Duggan
Barbara Keshen
Andrew Shulman
Manslaughter - numerous issues including exclusion of
defendant's exculpatory statements and taped statement
to police; admission of prior threats against victim
and other bad acts; failure to give jury instructions
on use of deadly force in one's dwelling, accident, and
second degree murder - extreme indifference; improper
closing argument; admission of conversation between
defendant and his wife at jail; allowing lawyers to
conduct panel voir dire of jury
98-039 State of NH v. Locke,* William
Attorney General James E. Duggan
Sven D. Wiberg
Felonious sexual assault - sufficiency of evidence;
prior bad acts; reference by State to facts not in
evidence; admission of evidence of victim's demeanor
during conversations when court excluded substance of
conversations
98-040 State of NH v. Komisarek,* David
Attorney General James E. Duggan
Byry D. Kennedy
Attempted possession of marijuana with intent to
distribute - sufficiency of evidence; failure to
require disclosure of identity of confidential
informant; failure to suppress defendant's statements
to police; violation of sequestration order; failure to
exclude marijuana from evidence; ineffective assistance
of counsel; denial of motion to vacate based on
testimony of confidential informant contrary to prior
representations
98-042 State of NH v. Main,* Mark
Attorney General James E. Duggan
Sven D. Wiberg
Aggravated felonious sexual assault - double jeopardy;
whether double jeopardy bars retrial where mistrial
declared after State engaged in intentional and grossly
negligent conduct prejudicial to defendant;
interlocutory appeal
98-047 Soper,* Taylor v. Purdy, Linda
David W. Rayment Joseph F. Daschbach
William B. Pribis
Contracts, unjust enrichment - sale of heifers; whether
material dispute of fact existed as to application of
statute of limitations; whether 1994 sales agreement
reaffirmed original debt; whether 1994 agreement
created obligation to pay; whether laches barred unjust
enrichment claim
98-114 In re NH-PUC Statewide Electric Utility Restructuring
Plan
Thomas B. Getz, Robert J. Frank for PUC
Martin L. Gross, Robert Bersak, Alan Taylor for PSNH
Martin P. Honigberg, James K. Brown, Susan Snyder for
the Governor's office
Peter H. Grills, Thomas I. Arnold, III for the City of
Manchester
Patricia French for Unitil
F. Anne Ross for the Retail Merchants Association and
Cabletron Systems
David A. Garfunkel for Granite State Electric
Joshua L. Gordon for the Campaign for Ratepayers'
Rights
James R. Anderson, for the Office of the Consumer
Advocate
Pentti J. Aalto, for PJA Energy Systems Design
Stranded costs - whether the Rate Agreement and/or RSA
chapter 362-C affects the PUC's ability to establish
stranded cost charges under RSA chapter 374-F for
Public Service Company of New Hampshire; if "yes,"
whether the PUC may establish stranded cost charges
providing for less than full recovery of the assets
referred to in the Rate Agreement