Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - February 1999

      * denotes appealing parties

98-193    State of NH                   v.   Palmero,*            
          Attorney General                   Christopher          
                                             James E. Duggan
                                             Nancy J. Gray
                                             
          Imposition of suspended and deferred sentences -
          whether sentencing order suspending sentence upon good
          behavior gave notice that disciplinary violations at
          state prison could result in imposition of suspended
          sentence; whether sentencing order gave notice that
          disciplinary violations at state prison could result in
          imposition of deferred sentence
          
98-233    New Hampshire Boring,    v.   Adirondack Environmental
          Inc.*                         Associates, Inc.
          Jonathan Prew                 R. James Steiner
          
          Breach of contract - whether court erred in finding
          accord and satisfaction existed as a matter of law and
          not as a matter of fact; failure to apply UCC; whether
          evidence supported finding of accord and satisfaction
          
98-352    Carnie,* James I., Mary  v.   Town of Richmond, Paragon
          C.D. Carnie                   Communication, Inc.
          pro se                        Arnold R. Falk, for town
                                        Thomas R. Hanna, for      
                                        Paragon
                                        
          Municipal regulation - whether zoning board of
          adjustment erred in granting special exception for
          commercial use on a lot not meeting area and frontage
          requirements; whether ZBA chairman prejudged issues;
          improper issuance of building permit prior to site plan
          review; reliance by superior court upon irrelevant
          ordinances
          
98-462    State of NH              v.   Graham,* Ian
          Attorney General              James E. Duggan
                                        Theodore Barnes 
                                        
          Deferred sentence - whether court impermissibly added a
          new condition of good behavior to the terms of
          defendant's deferred sentence after he had been
          sentenced; imposition of deferred sentence for
          violation of condition of which defendant was not
          apprised at time of sentencing

98-475    Town of Windham          v.   Lawrence Savings Bank*
          Bernard H. Campbell           Russell F. Hilliard
          
          Municipal regulation - failure to obtain subdivision
          approval; whether the submission of a portion of a lot
          of record to a condominium, designating the balance of
          the lot as expandable land, effectively subdivides the
          land such that no further subdivision approval is
          necessary to convey the expandable land; cross-appeal -
          whether bad faith necessary to award attorney's fees to
          town; denial of fees under RSA 676:16 & :17
          
98-487    Fowler, Herbert N. Jr.   v.   Fowler,* Cheryl K.
          Keri J. Marshall              Mae C. Bradshaw
          Pamela A. Peterson
          
          Divorce - alimony; award of non-permanent alimony;
          conditioning full alimony upon enrolling and remaining
          in college; requiring defendant to report her college
          credits to plaintiff; conditioning alimony upon
          defendant not cohabiting with unrelated male for more
          than three months; involuntary servitude
          
98-507    George,* Edmund K.       v.   Senner, Gary
          Bradley M. Lown               Deborah R. Reynolds
          
          Landlord-tenant - foreclosure; whether provisions of
          RSA chapters 540 and 540-A govern rights of a
          residential mortgagor following foreclosure; denial of
          request to present testimony; attorney's fees and
          treble damages
          
98-534    Carter,* Susan           v.   Lachance, Douglas
          Harold Owen Beede             Mark S. Moeller
          
          Landlord-tenant - interruption of gas service; whether
          tenant must plead and prove actual damages to be
          awarded monetary relief under RSA 540-A:4, IX; whether
          court has discretion not to award minimum of $1,000 per
          day plus costs and attorney's fees for violation;
          whether finding of violation of RSA 540-A:3 necessarily
          entitles plaintiff to double or treble damages; whether
          plaintiff failed to allege actual damages; failure of
          court to make specific findings 

98-551    Wyman-Gordon Investment Castings,* Appeal of
          (compensation appeals board)
          Eric G. Falkenham
          Paul R. Kfoury, Jr.
          David H. Bownes
          Attorney General
          
          Workers' compensation - whether torn knee ligament was
          caused by work activities; rejection of employer's
          medical expert's causation opinion without citing
          competing medical evidence or factual errors; failure
          of board to address legal causation; award of
          disability benefits despite employer providing full-
          time light duty permanent work within employee's
          capabilities
          
98-552    Senior Hand, Inc.,* Appeal of
          (department of employment security)
          Jonathan S. Springer
          Attorney General
          
          Employment relationship - whether certain contractors
          were employees or independent contractors for purposes
          of unemployment taxes; failure to apply statutory test;
          whether certain "home companions" were respite care
          workers pursuant to Appeal of Lakes Region Community
          Services Council, 127 N.H. 386 (1985)
          
98-572    Coviello, Vincent L.     v.   Coutermarsh,* Julie
          pro se                        Barry I. Harkaway
          
          Domestic violence - admission of hearsay; taking
          judicial notice of prior lapsed restraining orders;
          extension by court sua sponte of lapsed domestic
          violence restraining order; whether facts properly
          before court established prima facie case of abuse
          
98-647    CSE, Inc. d/b/a Paul Davis    v.   MacNeil, Gerald C.,  
          Systems of Central NH*             Donna Mae MacNeil
          Lynn D. Morse                      John G. Cronin
          
          Breach of contract - admission of written estimate to
          repair absent testimony of preparer of estimate

98-653    JAAJ Realty Corporation* v.   Gaudette, Louise L., OFS
          David W. Carr                 Lending, Inc., Louise L.
                                        Gaudette Family Limited
                                        Partnership, II, J&L
                                        Family Limited
                                        Partnership, III
                                        Ronald J. Caron
                                        
          Tortious interference with contract rights, conspiracy,
          Consumer Protection Act - collateral estoppel; failure
          to accept as conclusive a fact that was judicially
          noticed
          
98-656    Phillips,* John, et al.  v.   City of Concord
          Charles A. Russell            Paul F. Cavanaugh
          
          Property tax - whether city's shift in fiscal year and
          change to quarterly property tax billing resulted in
          unconstitutional double taxation for the 1996 tax year
          
98-670    Miller, Todd J.,         v.   Miller,* David, Jordan
          Granite                       Miller, Miller  
          Industrial Gases, Inc.        Industrial Gases, LLC*    
          Kevin M. Leach                William S. Gannon
          
          Arbitration - enforcement of order; personal
          jurisdiction; whether arbitration order has
          extraterritorial effect; failure to limit scope of non-
          competition provision of arbitration order; whether
          evidence supported award of injunctive relief
          
98-673    Emerson,* Maria          v.   Bentwood, John, Dr.
          Edward B. Mulligan, IV        William L. Chapman
          
          Medical malpractice - directed verdict; whether court
          erred in finding plaintiff's medical expert's testimony
          unreliable; whether court erred by considering previous
          experience with plaintiff's expert
          
98-719    State of NH              v.   Santamaria,* Paul
          Attorney General              Paul Twomey
          
          First degree assault - whether court erred in allowing
          police officer to testify as expert witness;
          sufficiency of evidence

98-743    In re Megan and Craig T.
          Brian P. McEvoy, for Joann T.*
          Attorney General
          
          Child neglect - admission of psychological evaluations
          of the children; sufficiency of evidence
          
98-749    State of NH              v.   Jeleniewski,* Eric
          Attorney General              James E. Duggan
                                        Andrew F. Cotrupi
                                        Alan Cronheim
                                        
          First degree murder - numerous issues including denial
          of motion to suppress where arrest warrant failed to
          establish probable cause and contained material
          omissions; jury instructions; denial of motion to
          recuse; exclusion of evidence pursuant to Evidence Rule
          404(b); failure to suppress statements made by
          defendant; limitation on cross-examination
          
98-763    Estate of Helen Reilly*
          Raymond B. Neu, pro se
          Richard R. Fernald
          
          Petition to set aside will - numerous issues including
          filing of false documents; failure to notify relatives
          of guardianship over decedent; whether 1988 will was
          properly executed; whether 1963 will was irrevocable;
          whether stepchildren entitled to share of stepparent's
          estate; denial of motion to recuse
          
98-776    Heron Cove Association,  v.   Town of Windham, DVMD
          Cobbetts Pond Improvement     Holdings, Inc.*
          Association                   Bernard H. Campbell
          Carolyn W. Baldwin            F. Anne Ross              
          Kathleen S. DiFruscia         
          
          Municipal regulation - wetland and watershed protection
          district ordinance (WWPD); whether WWPD is ambiguous;
          administrative gloss; application of WWPD exemption for
          Cobbett's Pond to feeder streams; whether shore of
          Dinsmore Brook is governed by WWPD

98-779    State of NH              v.   Woodard,* Donna L.
          Attorney General              Philip H. Utter
          
          Felonious sexual assault - failure to notify defendant
          that jury had a question during deliberations; allowing
          State to question victim about prior consistent
          statements; denial of bill of particulars; admission of
          evidence of prior sexual relationship between defendant
          and victim's mother; allowing State to call as a
          witness an expert in the treatment of sexual abuse
          victims and perpetrators
          
98-787    State of NH              v.   Martin,* Duane Alan
          Attorney General              James E. Duggan
          Nancy J. Gray
          
          Felon in possession of firearm - motion to suppress;
          whether exclusionary rule applies when defendant
          correctly informs arresting officers that arrest
          warrant has been cleared and officers do not attempt to
          contact issuing court
          
98-805    State of NH              v.   Gordon,* David
          Attorney General              Philip Desfosses
          
          Aggravated felonious sexual assault - allowing
          pediatrician to testify as expert; allowing State to
          impeach witnesses by inquiring as to disclosures to
          prior counsel; failure to allow explanation of
          circumstances surrounding disclosure of sexual
          assaults; allowing course of conduct indictments to go
          to jury; failure to allow defendant to argue that
          victim engaged in activity that could have explained
          physical findings; sufficiency of evidence
          
98-806    Hillside Estates         v.   Gagnon, Linda
          Condominium Association*       pro se
          Scott W. Flood                 
          Timothy J. Arel
          
          Condominium fees - collection action; whether court
          erred in failing to award full amount of attorney's
          fees pursuant to RSA 356-B:15 that were incurred by
          plaintiff

98-807    Hillside Estates         v.   Bongiovi, Raymond
          Condominium Association*      pro se
          Scott W. Flood                                          
          Timothy J. Arel
          
          Condominium fees - collection action; whether court
          erred in failing to award full amount of attorney's
          fees pursuant to RSA 356-B:15 that were incurred by
          plaintiff

98-810    Stevens,* Dana           v.   Laconia School District
          James F. Lafrance             Paul T. Fitzgerald
          
          Municipal employment - constructive discharge; right to
          jury trial; whether superior court has subject matter
          jurisdiction of claim alleging constructive discharge
          in violation of collective bargaining agreement;
          whether exhaustion of administrative remedies was
          required; dismissal of promissory estoppel claim
          
98-815    Kelly,* Linda A., Appeal of
          (compensation appeals board)
          Michael C. Reynolds
          Jeffrey H. Karlin
          Attorney General

          Workers' compensation - whether time spent attending
          physical therapy and physician's appointments for work-
          related injury is compensable; whether board's findings
          and rulings are adequate; whether board erred in
          finding claimant did not prove work-related injury when
          causation was not at issue
          
98-816    McKerley Health Facilities,* Forrest McKerley, 
          James McKerley, Matthew McKerley, Appeal of
          (department of health and human services)
          David Putnam
          Attorney General
          
          Medicaid depreciation recapture - whether department
          erred by recasting sale of partnership interests as
          sale of partnership assets; assessment of depreciation
          recapture without determining amount of gain allocable
          to the nursing home assets sold

99-009    Mercier, Tim and Rachel  v.   Watson,* Judy and Michael
          pro se                        Anne D. Barber
                                        Elliott Berry
                                        
          Landlord-tenant - eviction; whether defendants violated
          rental agreement provision pertaining to unregistered
          motor vehicles; whether court erred by informing
          defendants at trial that their claim of retaliation
          would probably have no legal effect; failure to provide
          defendants with adequate opportunity to address
          plaintiff's claim of lack of written notice 
          
99-090    State of NH*             v.   Richter, Dirk
          Attorney General              Mark M. Rumley
          
          Operating after suspension, operating without proof of
          financial responsibility - whether police have
          reasonable suspicion to stop motor vehicle when police
          know vehicle owner's license is suspended but do not
          know if driver is the owner
 
          Note: The court has consolidated 98-806 and 98-807.