New Hampshire Supreme Court
Cases Accepted - July 1999
* denotes appealing parties
98-470 State of NH v. Michaud,* David
Attorney General James E. Duggan
Stephen A. White
False reports to law enforcement - admission of hearsay
98-569 Breton, Cheryl, Mathew v. EMRE of New Hampshire
Michaud Corporation d/b/a Norwood
William J. Schubert Real Estate,* Tri-State
Home Inspections, Inc.,
Lynn Mojave, Paul
Raymond, Walter Griffin,
Kenneth Jordan
David S. Phillips
Real estate sale - breach of contract,
misrepresentation, Consumer Protection Act violation;
whether real estate agents are liable for latent
defects in house; whether court erred by entering
judgment on count previously dismissed, and against
defendant named only in that count; excessive damage
award; whether defendants violated Consumer Protection
Act; whether court erred in awarding damages under
Consumer Protection Act based on findings which
plaintiffs never pled
98-703 In re Christopher B.
Paula J. Werme, for Christopher B. Sr.*
Howard A. Roever, for Cara B.
Lisa Walker, for DCYF
Stephanie Drouin
Abuse and neglect proceeding - denial of motion for
immediate return of child; proper standard for return
of child to non-abusing parent; violation of due
process when custody of child vested in DCYF without
consent of father
98-796 Cosseboom, Charles v. Town of Epsom*
Michael Donovan Tony F. Soltani
Municipal regulation - whether zoning ordinance exempts
parcel from frontage, size, and acreage requirements;
whether plaintiff is required to obtain special
exception or variance; whether court erred by allowing
plaintiff to assert new grounds for appeal not raised
before ZBA or in appeal petition
99-082 Moore,* Raymond J., Jr., Appeal of
(compensation appeals board)
Paul S. Moore
Shawn Sullivan
Jeffrey Karlin
Attorney General
Workers' compensation - failure to apply
recurrence/aggravation standards to claimant's on-going
work-related condition; denial of benefits absent
evidence that claimant suffered distinct and
extraordinary trauma-inducing event resulting in non-
work related aggravation of his ongoing compensable
condition; whether claimant's asthmatic condition was
cured
99-097 Tucker,* Paulina L; v. Merchants Insurance
individually and as Group
mother and next friend Gordon A. Rehnborg
of Martin and Jason
Rollins
David J. KillKelley
Thomas J. Cote
Automobile liability insurance - cancellation for
nonpayment; whether notice of cancellation was
sufficient under RSA 417-A; whether statement of reason
for cancellation ("nonpayment") was sufficient where
statute requires that the specific reason "nonpayment
of premium" be stated
99-124 State of NH v. Dame,* Christopher
Attorney General James E. Duggan
Carol Gray
Imposition of suspended sentence - whether court erred
in relying on uncorroborated confession; consideration
of prior uncharged misconduct; sufficiency of evidence;
whether defendant is an "offender" and whether court
erred in ordering defendant to pay restitution for
burned car absent any related criminal conviction
99-136 Forbes Farm Partnership* v. Farm Family Mutual
Arend R. Tensen Insurance Company
James Spink
C. Nicholas Burke
Farm package insurance - stray voltage losses; whether
insurer required to give notice that suit must be
initiated within one year; whether insurer waived its
right to assert one-year limitation period; estoppel
99-166 State of NH v. Black,* Jennifer
Attorney General James E. Duggan
Stuart Dedopoulos
Second degree assault - numerous issues including
failure to require State to present certain evidence or
instructions to grand jury; denial of bill of
particulars and request for deposition; consolidation
of charges; admission of prior bad acts; admission of
hearsay as excited utterance; sufficiency of evidence
99-182 Hollins, Susan Ph.D. v. Della Badia,* Joseph,
K. William Clauson individually and as
superintendent of SAU 22,
School Administrative
Unit 22
Thomas T. Barry
John F. Teague
Municipal employment - wrongful discharge; whether
school superintendent had authority to issue nonrenewal
notice; allowing amendment to add new claim; failure to
exhaust administrative remedies; collateral estoppel;
attorney's fees; sufficiency of evidence; failure to
reconvene jury; cross-appeal - whether court erred in
dismissing counts as to covenant of good faith,
wrongful discharge, civil rights violation (due
process), and implied contract
99-254 State of NH v. Guiheen,* John
Attorney General James E. Duggan
Theodore Barnes
Felony stalking - ineffective assistance of counsel;
failure to grant a mistrial
99-270 State of NH v. Moore,* Thurman
Attorney General James E. Duggan
Christopher Keating
First degree assault, second degree assault, criminal
restraint - failure to suppress identification
resulting from suggestive photo array; whether
defendant, who was intoxicated, knowingly,
intelligently, and voluntarily waived Miranda rights;
refusal to permit cross-examination of victim as to
whether injuries resulted in lasting impairment to her
health; hearsay; admission of prejudicial videotape of
defendant undergoing booking process; sufficiency of
evidence
99-278 State of NH v. AmeriGas Propane, LP*
Attorney General Nicholas K. Holmes
Failure to provide proper slope on horizontal vent
connector - whether statute of limitations barred
prosecution of State Fire Code violation; failure to
exclude evidence that death occurred due to carbon
monoxide poisoning in residence; failure to instruct
jury as to mistake of fact; whether State must prove
that defendant was given opportunity to correct alleged
deficiency; whether court erred in sentencing defendant
to probation; whether fine was unconstitutionally
disproportionate
99-283 Town of Salem* v. Wickson, Richard
Diane M. Gorrow James Troisi
Municipal regulation - whether current use of lot for
stockpiling earth materials is substantially similar to
prior use; whether town required to prove irreparable
harm to obtain injunction in zoning action; whether
past stockpiling was unrelated to farm activities
99-291 State of NH v. Sprague,* Lester
Attorney General James E. Duggan
Sven D. Wiberg
Burglary - sufficiency of evidence; whether trial was
barred by State's failure to meet time limits of the
Interstate Agreement on Detainers; whether evidence
regarding boot prints invaded province of jury
99-292 Seacoast Fire Equipment,* Appeal of
(department of labor)
Benjamin T. King
Allen Hendrigan, pro se
Attorney General
Whistleblowers' Protection Act - whether employer
terminated claimant's employment for nondiscriminatory
reasons and whether claimant proved such reasons were
pretextual; whether claimant failed to comply with RSA
275-E:4
99-304 State of NH v. Magnan,* Marie
Attorney General James E. Duggan
Timothy Landry
Ghazi Al-Marayati
Attempted first degree assault, second degree assault -
numerous issues including whether police entry into
home was unreasonable search and seizure; whether
granting State's requests for discovery violated
defendant's right against self-incrimination; admission
of evidence that defendant had been suicidal; hearsay;
whether State proved defendant not acting in self-
defense; sufficiency of evidence
99-306 Hill, John H. III, v. Town of Chester,* Town of
Deborah Simard-Hill Chester Zoning Board of
Sumner F. Kalman Adjustment
David R. Connell
Municipal regulation - whether self-created hardship
rule in zoning variance cases extends to cases where
landowner fails to make available lot line adjustment
to add necessary area to undersized lot; whether zoning
board was unreasonable in finding a self-created
hardship; whether plaintiffs had actual or constructive
notice of lot's substandard status
99-307 Cover, Christine R. v. LaBonte, Ronald, Vermont
Richard G. Smith Mutual Insurance Company*
Gregory S. Clayton
Homeowners insurance - declaratory judgment; whether
statutory exception for accident, mistake or misfortune
and not neglect for failure to file action within six
months was satisfied; interlocutory appeal
99-310 Schiavoni,* Priscilla J. v. Waterville Valley Ski
Elizabeth G. Rose Area, LTD
Joseph M. McDonough, III
Negligence - ski area immunity; whether court erred in
granting motion to dismiss based on RSA 225-A:24
99-327 Cote,* Louis, Appeal of
(compensation appeals board)
Christopher E. Grant
Benjamin T. King
Andrew A. Merrill
Attorney General
Workers' compensation - permanent impairment; whether
board erred by rejecting evidence of permanent
impairment from only doctor who examined petitioner;
whether board erred by applying compensation rate
effective in 1994 when petitioner was injured in 1985;
failure to base permanent impairment compensation on
average weekly wage when petitioner reached medical
endpoint in January 1994; estoppel; whether board acted
arbitrarily in soliciting opinion from both parties by
a doctor and then rejecting submission of supplemental
report
99-336 Swan,* Joseph Jr., by v. Hickey, Oscar
mother and next friend pro se
Warreen Lovett Christopher T. Regan
John Pierce Kalled for intervenor, Reta
Hickey
Sexual assault and battery - whether attachment
expired in 1996; whether court erred in denying motion
to enforce levy and execution upon judgment
99-345 Bulva,* David, Petition of
(NH Retirement System)
James G. Noucas, Jr.
Peter T. Foley
Attorney General
Ordinary disability benefits - whether RSA 100-A:6
denies due process by prohibiting board from granting
disability benefits absent certification from board-
designated physician that petitioner is incapacitated
from duty regardless of evidence presented by
petitioner; sufficiency of evidence
99-370 Sugar River Mills v. Donovan,* Elizabeth
William Howard Dunn Patricia Wallace
Landlord-tenant - eviction; whether landlord created
new tenancy by accepting payment on rental arrearage
without providing prior written notice that it would
proceed with eviction in spite of its acceptance of the
payment