Judicial Branch, State of New Hampshire

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

          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

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
          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
                                        John Dunham for Coldwell
                                        Stephanie Bray for
                                          Coldwell Banker-
                                        Barry S. Fischer for J.C.

          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

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

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

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
          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
          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'
          James R. Anderson, for the Office of the Consumer
          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