Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - December 1999

      * denotes appealing parties

99-138    Wibbelt,* William        v.   Turner, Rita
          Kevin M. Fitzgerald           Mark Wiseman
          
          Breach of contract, infliction of emotional distress -
          whether evidence sufficient to establish infliction of
          emotional distress and to support award of enhanced
          compensatory damages; whether evidence compelled
          finding that defendant breached partnership agreement
          
99-140    In the Matter of Andrew M. Hunt and Beatrice M. Hunt*
          Gordon R. Blakeney, Jr.
          R. David DePuy
          John Shyavitz, GAL
          
          Post-divorce proceedings - child custody; whether
          defendant must prove change in circumstances to seek
          modification of legal custody
          
99-423    In the Matter of Robert P.
          William A. Whitten, for the father*
          Timothy Wells, for the mother
          Attorney General
          
          Child abuse and neglect - where two parents are not
          living together and court makes a finding of neglect
          against only one parent, may court deny physical
          placement of child with other parent 
          
99-472    State of NH*             v.   Cooper, Lon
          Attorney General              James E. Duggan
                                        Donna Brown
                                        
          Aggravated felonious sexual assault - suspended
          sentence; whether violation of "good behavior"
          condition on suspended sentence requires that defendant
          engage in criminal conduct before court can impose the
          suspended sentence

99-513    Riverview Gardens, LLC   v.   City of Nashua, Vickerry
          Malcolm McNeill               Realty Co.*
                                        James M. McNamee, Jr.
                                        Dean B. Eggert
                                        
          Municipal regulation - whether zoning ordinance
          prohibits withdrawal of land from planned business
          development (PBD); whether modification of PBD is
          limited to uses allowed by special exception; whether
          land may be withdrawn from PBD only if proposed use on
          withdrawn land meets criteria for special exception;
          whether court erred in vacating site plan approval;
          whether rule in Fisher v. Dover, 120 N.H. 187 (1980),
          precluding resubmission of previously denied variance
          application, should be extended to preclude
          resubmission of application for special exception
          
99-553    State of NH             v.    Hartley,* Terrence
          Attorney General              James E. Duggan
                                        Robert Bennett
                                        
          Aggravated felonious sexual assault - sufficiency of
          evidence
          
99-582    State of NH              v.   Lefebvre,* Edmour
          Attorney General              James E. Duggan
                                        Theodore Lothstein
                                        
          Criminal threatening, simple assault, witness tampering
          - numerous issues including whether witness was
          competent to testify; whether witness was unavailable
          to testify; denial of right of confrontation; exclusion
          of testimony of defense witness; admission of prior
          consistent statements; admission of hearsay; denial of
          mistrial; sufficiency of evidence
          
99-584    State of NH              v.   Lefebvre,* Edmour
          Attorney General              James E. Duggan
                                        Theodore Lothstein
                                        
          Criminal threatening, criminal mischief, resisting
          arrest, attempted escape, witness tampering - prior bad
          acts; whether witness was competent to testify;
          allowing witness to testify that she read defendant's
          lips; sufficiency of evidence; admission of
          prejudicial, nonprobative evidence regarding shotgun
          found in defendant's apartment

99-587    Fannie Mae (Federal      v.   Kamasinski,* Theodore
          National Mortgage             pro se
          Association)
          Stephen J. Laurent       
          Landlord-tenant appeal - eviction; whether new notice
          to quit was required where tenancy at will was
          contractually created during pendency of eviction
          action; whether court erred by granting facsimile of
          non-filed motion to continue; grant of motion to
          continue that failed to state any good cause for
          continuance
          
99-592    Morse,* William,         v.   Goduti, Richard A.
          Administrator of the          E. Tupper Kinder
          Estate of Samuel T. Morse
          Charles G. Douglas, III       
          
          Negligence, premises liability - whether artificial
          unfenced pond with precipitous side slopes posed an
          open and obvious danger such that it extinguished
          defendant's duty of reasonable care to ten-year-old
          child
          
99-619    Scheffel,* Lorie, Lorie  v.   Krueger, Kyle, Kyle
          Scheffel, mother and          Krueger                  
          next friend of Cory C.        Irrevocable Trust,        
          William E. Aivalikles         Trustee Defendant
                                        Kyle Krueger, pro se
                                        William Shaheen
                                        Peggy A. Rossing
                                        Attorney General
                                        
          Spendthrift trust - attachment; whether spendthrift
          provision is enforceable against tort victim of a crime
          committed by trust beneficiary; whether trust qualifies
          as a spendthrift trust; whether enforcement of
          spendthrift provision in favor of criminal violates
          public policy; whether trust should be terminated due
          to incarceration of beneficiary

99-622    State of NH              v.   Veilleux,* Michael D.
          Attorney General              James E. Duggan
                                        Thomas A. Ficarra
                                        
          Felon in possession of a weapon, simple assault,
          resisting arrest - failure to dismiss for lack of
          prosecution; denial of mistrial after incorrect
          indictment read to jury; sufficiency of evidence

99-623    State of NH              v.   Nickerson,* Dale
          Attorney General              James B. Hobbs
          
          Driving while intoxicated - whether State can
          adminstratively suspend license for refusing blood test
          and then admit results of hospital blood test at
          criminal trial; whether RSA 329:26 authorizes State to
          use results of hospital blood test after defendant
          declines a blood test; denial of due process and right
          to second blood sample
          
99-624    Bank of New Hampshire,   v.   Shirkoff, Walter,
          Trustee*                      and Maureen Shirkoff,
          Michael E. Chubrich           guardians, trustees and
                                        next friends of Daniel W.
                                        Hartshorn and Katie E.
                                        Hartshorn, and Benjamin
                                        M. Hartshorn III
                                        Mary Keohan Ganz
                                        Benjamin M. Hartshorn
                                        III, pro se
                                        
          Testamentary spendthrift trust - whether superior court
          has jurisdiction over trust to enforce a Massachusetts
          divorce judgment substituting beneficiaries; whether
          default decree is voidable because of defective service
          of process; whether trustee's request for declaratory
          relief on issue of retroactive enforcement of RSA
          564:23 and RSA 498:9 constitute waiver of right to
          reopen default decree
          
99-630    Arcand, Mary-Brigid      v.   Savchick,* Michael
          pro se                        pro se
          
          Stalking - telephone calls; sufficiency of evidence;
          whether facts found constitute stalking as a matter of
          law
          
99-634    State of NH              v.   Brewster,* Michael A.
          Attorney General              James E. Duggan
                                        Andrew R. Schulman
                                        
          Harassment - whether target of threatening telephone
          call may testify about the impact the offense had on
          her life; whether target of call may testify about
          substance of call and its impact on her when she was
          not a party to call; admission of prior bad acts

99-638    Bouwens,* Kenneth,       v.   Hanover Insurance    
          administrator of the          Company,
          estate of Harleigh B.         Travelers Insurance
          Bouwens                       Company
          David J. KillKelley           Andrew D. Dunn
                                        Melinda S. Gehris
                                        
          Underinsured motorist coverage - whether policy
          provision is ambiguous; whether $300,000 per occurrence
          limit is subject to $100,000 per person limit
          
99-639    State of NH              v.   Bruce,* David
          Attorney General              Bernard J. Robertson
          
          Criminal mischief - whether criminal mischief statute
          is unconstitutionally vague; whether indictment alleges
          a crime; delay in notifying defendant of loss of crime
          scene photographs; denial of competing harms defense;
          whether court erred in allowing jury to consider lesser
          included offenses; double jeopardy; whether
          resentencing provision in sentence violates due process
          or equal protection; unconstitutional delays in
          resolving legal claims
          
99-644    State of NH,* Appeal of
          (public employee labor relations board)
          Attorney General
          Thomas Hardiman, for State Employees Assoc. of NH
          
          Unfair labor practice - public employees; whether prior
          individual arbitration awards regarding bonus leave and
          floating holidays for employees on unpaid leave
          established binding "law of the contract"; whether
          readoption of N.H. Admin. Rule Per 1205.02 governing
          unpaid leave violated RSA 273-A:5; sufficiency of
          evidence; failure to make adequate factual findings
          
99-645    In the Matter of Robert P. Dolan* and Cathy L.
          Dolan
          John A. Macoul
          Penny S. Dean
          
          Post-divorce proceedings - numerous issues including
          whether gains from exercise and sale of post-divorce
          stock options are income for child support purposes;
          failure to properly consider cost of exercising options
          and resulting taxes; whether court erred by entering
          speculative and unlimited order for potential
          additional child support

99-647    State of NH              v.   Pehowic,* Edward B.
          Attorney General              James E. Duggan
                                        David Rothstein
                                        Barbara Keshen
                                        
          First degree murder - numerous issues including whether
          defendant was in custody when he made statements;
          whether statements were made voluntarily; limiting
          examination into cooperation agreement made by State's
          witness; failure of trial judge to recuse himself;
          whether court erred in allowing jury to consider
          accomplice liability; refusal to compel additional DNA
          testing
          
99-648    State of NH              v.   Walton,* Robert
          Attorney General              Paul Twomey
                                        Robin Dionne
                                        
          Aggravated felonious sexual assault - ineffective
          assistance of counsel (failure to move to dismiss on
          basis of insufficient evidence)
          
99-658    Sugar River Mills        v.   Hamilton,* Laura
          Todd C. Fahey                 Patricia Wallace
          
          Landlord-tenant - eviction; whether plaintiff created
          new tenancy by accepting payment on rental arrearage
          without providing prior written notice that it would
          proceed with the eviction despite acceptance; whether
          plaintiff created new tenancy by accepting rent for
          period of time after termination of previous tenancy
          
99-660    Gekas,* John, Appeal of
          (compensation appeals board)
          James S. Townsend
          Eric Falkenham
          Attorney General
          
          Workers' compensation - numerous issues including
          whether board erred in terminating weekly disability
          benefits absent evidence of material change in earning
          capacity; whether claimant is no longer totally
          disabled; failure to rule on requests for findings of
          fact and rulings of law; whether board erred by
          allowing medical expert to testify by telephone

99-661    Brouillette, Carolyn,    v.   Sherwood Forest
          Dorinda M. Janvrin            Mobile Homes, Inc.,*
          Gerald Zerfas, Christine      Michael G. Britton  
          E. Sharp, Jacqueline A.       Edgar D. McKean, III
          Murphy, Daniel J. McNeil,
          Jr., Thomas and Doris
          Murphy, Alvan and Phyllis
          Baker, Joan L. Bilich f/k/a
          Joan B. Elmore, Jean M. Robbins,
          Vera E. Ebinger, Shirley A.
          Gustin, June A. Sawyer, Marilyn
          E. Powell, Elizabeth M. Fisher,
          Phyllis Theriault, Jane
          Cunningham
          Elliott Berry       
          
          Mobile home park entrance fee - whether entrance fee
          violates RSA 205-A:1
          
99-662    Rodgers Development      v.   Town of Tilton, Market
          Company*                      Basket
          Paul C. Bordeau               Daniel D. Crean
          Walter L. Mitchell, for       Michael J. Donahue
          intervenor Infinity
          Sherwood Properties, LLC*
          
          Layout of highway - whether court erred by deferring to
          town's decision to lay out highway; whether court
          improperly balanced public need against public burden;
          whether court permitted unconstitutional taking of
          private property for road layout; whether public need
          requirement is met by existence of public benefit;
          whether court erred in finding "occasion" for laying
          out public road; whether selectmen may interject their
          opinion on site plan issues for that of planning board
          
99-663    In re Jeffrey C.*
          James E. Duggan
          Diana G. Bolander
          Attorney General
          
          First degree assault, criminal threatening, reckless
          conduct - whether juvenile who has not been certified
          as an adult and who has not waived jury trial right can
          be incarcerated in house of corrections; whether RSA
          169-B:19 violates State and Federal Constitutions;
          whether juvenile has right to jury trial

99-669    Sullivan,* Lynn F.,      v.   Monadnock Title Services,
          Individually and as she       Inc.
          is Executrix of the           Michael R. Callahan
          Estate of George M.
          Sullivan
          Irvin D. Gordon          
          
          Pension benefits - whether court erred in granting
          motion to dismiss filed on Friday preceding scheduled
          Monday jury trial; whether writ stated actionable claim
          

99-670    Portsmouth Police Commission,* Appeal of
          (public employee labor relations board)
          Thomas J. Flygare
          Peter C. Phillips
          Robert P. Sullivan
          Attorney General
          
          Municipal employees - arbitrator's award of pay
          increases for private work details; whether board erred
          by enforcing arbitrator's award to fund a cost item
          never approved by city council; whether police
          commission refused to bargain in good faith; whether
          commission breached contract by failing to implement
          arbitrator's award; whether city is bound by fact
          finder's report; award of interest
          
99-674    Gears,* Deborah, Appeal of 
          (compensation appeals board)
          Francis X. Quinn, Jr.
          Benjamin T. King
          James E. Owers
          Attorney General
          
          Workers' compensation - whether permanent impairment
          award should be based on average weekly wage at time of
          injury; whether RSA 281-A:15 changes determining wage
          where claimant changes employers between date of injury
          and date of disclosure of permanency
          
99-678    Bonardi,* Nicholas       v.   Kazmirchuk, Donna
          Gary L. Casinghino            Clifford R. Kinghorn, Jr.
          
          Prescriptive easement - whether defendant's use of
          property was permissive; whether defendant's use of
          property was continuous and uninterrupted for twenty
          years

99-679    State of NH              v.   Fuller,* Frederick
          Attorney General              Gabriel Nizetic
          
          Criminal threatening - numerous issues including
          whether victim's written statement was properly
          admitted as prior consistent statement; sufficiency of
          evidence; identification of defendant; jury instruction
          as to purpose to terrorize
          
99-680    State of NH              v.   Dugas,* Peter
          Attorney General              Ray Raimo
          
          Arson - sufficiency of evidence; admission of
          defendant's statement where entire statement was not
          provided to defendant prior to trial; limitation of
          cross-examination of State witness; whether court erred
          by providing jury with transcripts and audiotape of
          defendant's statements to police, videotape, audiotape
          player, and videotape player
          
99-693    Lower Village            v.   City of Claremont*
          Hydroelectric Associates,     John J. Yazinski
          Limited Partnership
          Timothy E. Britain       
          
          Taxation of small power production facilities - whether
          contract existed between parties; whether 1997
          amendment to RSA 72:8 violates Part I, article 23 of NH
          Constitution and Article I, section 10 of US
          Constitution
          
99-694    State of NH              v.   Harnum,* Eric
          Attorney General              Jean-Claude Sakellarios
          
          Driving while intoxicated, stop sign violations -
          whether court has authority to suspend driver's license
          for failure to stop at stop sign; excessive sentence
          
99-697    Seaco Insurance Co.*     v.   Peerless Insurance Co.
          Robert G. Whaland             Andrew D. Dunn
          
          Homeowner's insurance coverage - whether insurer
          defending person under a reservation of rights has
          standing to bring declaratory judgment action against
          another insurer who may be obligated to defend and
          indemnify the same insured

99-701    State of NH              v.   Seavey,* Heidi Lee
          Attorney General              Robert J. Moses
          
          Driving while intoxicated, conduct after an accident -
          whether exigent circumstances justified warrantless
          search; whether defendant entitled to advisements prior
          to administration of field sobriety tests; whether
          officer had probable cause to arrest; whether sentence
          was consistent with statutory requirements; whether
          court erred by imposing jail sentence when box for
          class B misdemeanor on complaint was checked off
          
99-707    Belknap County Commissioners,* Appeal of
          (public employee labor relations board)
          Bradley F. Kidder
          Michael Reynolds
          Attorney General
          
          Public employees - unfair labor practice; whether
          grievance was arbitrable; whether parties submitted
          issue of arbitrability to arbitrator
          
99-718    Germain,* Brian, Appeal of
          (compensation appeals board)
          Joseph J. Weglowski
          James O'Sullivan
          Attorney General
          
          Workers' compensation - whether claimant was totally
          disabled; whether motor vehicle accident was
          superceding, intervening cause of worsened back
          condition; lack of expert medical opinion to support
          board's findings
          
99-726    Whitworth,* Nancy L.     v.   Manchester Housing &
          John P. Fagan                 Redevelopment Authority
          Jared R. Green                James W. Craig
          
          Negligence - landlord liability; whether court erred in
          slip and fall case by allowing defendant to argue
          comparative fault and by giving comparative fault jury
          instruction; admission of medical testimony that
          plaintiff's pre-existing medical condition could have
          caused her to fall; denial of judgment notwithstanding
          the verdict
          
          Note: The court has consolidated 99-648 with 99-102.