New Hampshire Supreme Court
Cases Accepted - June 1999
* denotes appealing parties
98-571 State of NH v. Brunelle,* Steven A.
Attorney General James E. Duggan
Stephen T. Jeffco
Driving after certification as a habitual offender -
whether defendant was illegally seized
98-781 Remillard, Raymond v. Tracy,* Michael
pro se pro se
Breach of contract - res judicata; whether order
dismissing prior action with prejudice was a final
judgment
98-785 Shiretown Realty Trust,* v. Salomon, Craig N.
Joseph Fiumara, trustee pro se
pro se
Breach of contract, breach of fiduciary duty, unjust
enrichment - whether court erred in granting motion to
dismiss on ground that no objection was filed; denial
of motion for late entry of objection and answer to
counterclaim; failure to dismiss late counterclaim
98-788 Rallis, Gregory v. Town of Hampton Planning
Craig N. Salomon Board*
John H. McEachern
Municipal regulation - subdivision; whether court erred
in finding that planning board improperly refused
jurisdiction over application containing double-
frontage lots after board had posted notices of
proposed change prohibiting double-frontage lots prior
to submission of application; whether board improperly
refused jurisdiction over plan containing design
problems where applicant offered to submit new plan
98-793 State of NH v. Neight,* David
Attorney General R. Peter Decato
Having dangerous weapon at time of arrest - failure to
dismiss when defendant not aware he would be arrested
and lawfully had antique pistol on his person; whether
RSA 159:15 violates equal protection, right to bear
arms, due process (overly broad)
98-817 Atkins,* Kenneth P, Appeal of
(board of examiners of psychology and mental health
practice)
pro se
Attorney General
Certification as marriage and family therapist -
whether board violated due process by refusing to allow
petitioner to present relevant evidence; whether board
erred in ruling that petitioner failed to meet
supervisory requirements; whether RSA 330-A:16-f, III
requires that a supervisor be listed as an American
Association of Marriage and Family Therapy (AAMFT)
approved supervisor; whether petitioner's supervision
was "approved by" AAMFT
99-003 Kellner,* Jack, as v. Lowney, Irene
father and next of Robert J. Gallo
friend of Mendy
Kellner, Jack Kellner
Charles G. Douglas III
Stephen R. Goldman
Negligence, premises liability - whether defendant owed
duty to plaintiff within innkeeper-guest special
relationship to protect against foreseeable harm on a
public way running through motel grounds
99-018 Kulacz,* Brian, Appeal of
(compensation appeals board)
Bryan W. Clickner
Michael C. Reynolds
William D. Pandolph
Attorney General
Workers' compensation - denial of indemnity benefits
under RSA 281-A:48
99-019 Boulanger,* Donald, Appeal of
(compensation appeals board)
Leslie C. Nixon
James E. Owers
Attorney General
Workers' compensation - failure to consider new medical
report submitted with motion for rehearing; reliance
upon medical evidence that was not competent
99-020 TruServ f/k/a Cotter & Cotter,* Appeal of
(compensation appeals board)
Eric G. Falkenham
Richard Walsh
Attorney General
Workers' compensation - whether board erred in that
only two members of original board panel ruled on
motion for rehearing; application of wrong test for
medical causation
99-032 Inter-Lakes School Board,* Appeal of
(public employee labor relations board)
Bradley F. Kidder
James F. Allmendinger
Attorney General
Unfair labor practice - requiring public employer to
continue a practice of paying its employees with
federal funds that violates federal regulations;
whether payment of wages in conformity with federal law
and calculation of wages are within exclusive
managerial authority of public employer; whether board
made erroneous factual findings
99-042 Lopez, Michael J. v. Director, NH Division of
Kevin E. Sharkey Motor Vehicles*
Attorney General
Administrative license suspension - numerous issues
including whether exclusionary rule applies to ALS
hearings; whether court review of administrative
proceeding is limited to issues set forth in RSA
265:91-b, II; whether lawfulness of stop preceding
arrest for DWI is an issue to be determined by hearing
officer; failure of court to remand to hearing officer
for additional evidence; sufficiency of evidence
supporting stop; whether plaintiff waived issue of
legality of stop
99-063 Mailhot,* Scott A. v. The Life Insurance
Jack S. White Company of Virginia
Timothy G. Kerrigan
Life insurance - waiver of premiums in case of
disability; whether material fact was in dispute
precluding summary judgment; whether court
misinterpreted language of disability rider
99-078 Pichowicz,* John, John v. Watson Insurance Agency,
Pichowicz, Jr. Inc.
Roger B. Phillips Ralph Suozzo
Negligence in obtaining insurance coverage - statute of
limitations; whether cause of action accrued when court
decided underlying declaratory judgment action as to
scope of insurance coverage; whether court erred in
granting motion to dismiss after denying summary
judgment motion
99-094 McKenzie,* Alva, Steve v. City of Berlin, New
Paquette, Donald Hampshire Retirement
Labrecque, Luc Nadeau, System
Roland Langlois, William John Ratigan
Dussault, Michael Cloutier, Attorney General
David Landry, Lucien Alan Cleveland
Couture, Raymond Berube,
Paul Bernier, Rene Chabot,
Diane Lambert, Robert
Bourbeau, Dennis Aikens,
Rick Riendeau, Daryl Henry,
Dennis Arguin, Scott
Lavertue, George Coulombe,
Michael Ross, Gerard Sevigny,
Donald Riff, Alton Watson,
Ralph Lapointe, Richard
Frechette, Wendall Thomas,
Robert Martin, Robert
Laflamme
Vincent A. Wenners, Jr.
Stephanie S. Ferro
State and municipal retirement systems - failure to
apply enrollment oversight provisions of RSA 100-A;
whether trial court remedy violates Internal Revenue
Code or ERISA; failure to award attorney's fees; cross-
appeal - whether special legislative enactments
authorized city's local retirement system; whether
court abused its discretion in granting plaintiffs
declaratory or equitable relief; laches; whether city
barred from unilaterally enrolling employees in State
retirement system absent collective bargaining
agreement
99-120 In re Estate of Roy L. McIntosh
Kenneth M. Brown for Scott L. McIntosh*
Kris E. Durmer
Petition to enlarge estate to include IRA account -
whether court erred by applying banking statutes by
analogy to asset held by brokerage house; whether
constructive trust should be imposed on IRA account so
that it is divided equally among decedent's three sons;
whether beneficiary renounced his sole ownership of IRA
account
99-127 State of NH v. Mears,* Steven P.,
Attorney General Deborah M. Mears
Andrew P. Howard
Simple assault, resisting arrest - failure of State to
provide ordered discovery; whether defendants' First
Amendment rights were violated by failure to dismiss
charges due to police misconduct
99-129 Close,* Ronald M., v. Fisette, James,
Sharon A. Close, Dawn M. Martha Fisette
Cooper, John P. Cooper, Jr.
Fisette, James, Martha v. Close,* Ronald M., Sharon
Fisette A. Close, Dawn M. Cooper,
W. Scott O'Connell John P. Cooper, Jr.
Robert M. Shepard
Easement - subject matter jurisdiction; whether court
exceeded authority under RSA 676:15 by issuing
permanent injunction against use of easement; erroneous
construction of easement; whether planning board
approval needed for easement plan; due process
99-135 Bailey,* Marlene F., Petition of
(retirement system)
Joni N. Esperian
Attorney General
Disability retirement benefits - denial of accidental
disability benefits despite agreement by retirement
system to be bound by labor department's determination
that work injury was proximate cause of member's
disability; whether retirement board erred by rejecting
recommendation of hearings officer and imposing ongoing
burden of proving proximate cause
99-147 Young,* Kevin, Appeal of
(personnel appeals board)
Michael C. Reynolds
Attorney General
State employment - whether petitioner resigned from his
classified state position; whether petitioner had right
to retract or rescind his resignation; whether actions
of State agency were unjust or unreasonable
99-151 CenCel, Inc.,* MCT v. Contel Cellular, Inc.
Cellular, Inc., SCC E. Tupper Kinder
Cellular Telephone Corp.
James E. Higgins
Jeffrey A. Thaler
Donald A. Burns
Thomas T. Barry
Partnership, contract, fiduciary duty - whether
plaintiffs proved damages; whether partnership
agreement was superseded by switching services
agreement; exclusion of testimony of drafter of
partnership agreement as to parties' intent; whether
failure to disclose business opportunity with competing
cellular carrier breached fiduciary duty; whether court
misapplied burden of proof applicable to a managing
partner; cross-appeal - denial of attorney's fees;
denial of motion to amend to add claims; failure to
order production of letter between petitioners' counsel
and joint litigation agreement; whether court erred in
finding gross negligence; whether court erred in
finding certain actions to be breach of fiduciary duty
but for fact that partnership agreement was superseded
by switching services agreement
99-188 Francoeur,* Normand, v. Piper, Jurgen, M.D.,
administrator of the The Orthopaedic Center
Estate of Joyce Francoeur, Kenneth G. Bouchard
Normand Francoeur
Michael P. Hall
Medical injury action - whether jury instructions were
in error by confusing statutory standard for medical
injury action with prior common law standards for
medical malpractice actions; whether defendant's
argument to jury on legal standards was misleading;
exclusion of testimony that plaintiff's expert was a
very good physician; whether defendant's argument to
jury that plaintiff's expert had reviewed cases for
plaintiffs over 100 times was misleading and
prejudicial
99-192 Morse,* Gregory, Petition of
(personnel appeals board)
Michael C. Reynolds
Attorney General
State employment - classification appeal; denial of
evidentiary hearing; whether board made adequate
findings and rulings; whether employees entitled to new
hearing and retroactive pay if they prevail at new
hearing
99-193 Vinovich,* J. Scott, Petition of
(personnel appeals board)
Michael C. Reynolds
Attorney General
State employment - classification appeal; denial of
evidentiary hearing; whether board made adequate
findings and rulings; whether employees entitled to new
hearing and retroactive pay if they prevail at new
hearing
99-199 RST Acquisition, Inc.* v. Town of Ashland
Joseph M. Kerrigan Daniel D. Crean
Kevin W. Miner
Property tax abatement - failure of court to reduce
assessed values of $1,875,000 for 1995 and 1996 tax
years despite granting requested findings that
$1,595,000 was reasonable indication of value of
property for 1995 tax year and $1,610,000 was
reasonable indication of value for 1996 tax year
99-200 Town of Derry v. Consaul,* Bruce, Rosemary
pro se Consaul
pro se
Landlord-tenant - rent arrearage claim; whether
defendants owe rent absent landlord-tenant agreement;
whether town gave sufficient notice of rent increase;
failure to provide proper demand for rent; retaliatory
action by town
99-203 State of NH v. Caswell,* Dana M.
Attorney General J. Joseph McKittrick
Driving while intoxicated - admission of hearsay;
admission of breath test; failure to prove that breath
test was conducted in accord with rules established by
director of division of public health services;
impermissible shifting of burden of proof
99-210 Star Vector Corporation* v. Town of Windham, Kun Ming
Hsu, Cheng-Chi Hsu,
William Crucius
Windham Safety v. Town of Windham
Coalition Bernard H. Campbell
Kun Ming Hsu, Cheng-Chi Scott E. Woodman
Hsu, William Crucius Robert A. Battles
Alfred J.T. Rubega, for
Star Vector Corp.
Michael L. Donovan, for
Windham Safety Coalition
Municipal regulation - whether planning board's denial
of site plan for gun store and indoor shooting range
was reasonable and lawful; failure to rule on motion
for partial summary judgment; whether court erred by
refusing to allow property owner to present witness and
failing to review videotape of proceedings; sufficiency
of evidence; due process; denial of costs and fees;
cross-appeal - failure to transfer record of planning
board to ZBA as required by RSA 676:5; application of
incorrect burden of proof by ZBA
99-213 State of NH v. Johnson,* Terry S.
Attorney General James E. Duggan
John E. Durkin
Theodore Lothstein
Aggravated felonious sexual assault, simple assault,
violation of protective order - numerous issues
including admission of videotaped interview of victim
as only substantive evidence of offense under catch-all
exception of hearsay rules; admission of prior bad
acts; denial of mistrial; whether victim had valid
Fifth Amendment privilege; sufficiency of evidence;
whether court erred in finding that protective order
from State of Maine prohibited activity outside Maine;
authentication of Maine order
99-221 State of NH v. Gordon,* Steven
Attorney General James E. Duggan
Stuart M. Hurowitz
Aggravated felonious sexual assault - probation
violations; jurisdiction of superior court where
government's request for extradition of defendant from
Belgium did not request extradition for the probation
violations; denial of opportunity to confront
complaining witnesses; lack of corroboration of
defendant's confessions
99-233 In re Teresa G.
Sven D. Wiberg, for the father*
Attorney General
Sexual abuse of child - where district court dismissed
State's petition with prejudice for failure to comply
with discovery orders, whether State failed to timely
appeal and whether superior court erred by not
dismissing State's appeal
99-239 Dunlea,* William F., Appeal of
(compensation appeals board)
Gregory D. Robbins
Andrew A. Merrill
Attorney General
Workers' compensation - disregarding uncontroverted
medical evidence; failure to find causation; cumulative
trauma
99-241 State of NH v. Dale,* James
Attorney General James E. Duggan
James H. Moir
Nicholas Brodich
Second degree murder, aggravated felonious sexual
assault - denial of bill of particulars; exclusion of
hearsay statements; refusal to give "alibi" jury
instruction; sufficiency of evidence
99-244 Prescott Investment v. Krylov Capital
Corporation Corporation*
Emile R. Bussiere William S. Gannon
Partition by sale - numerous issues including whether
commissioners shifted burden of proof; failure of
commissioners to make findings of fact and rulings of
law; lack of evidence that division of parcel would
create substantial diminution of value; whether parcel
could be physically divided without great inconvenience
or great prejudice; whether commissioners' report was
influenced by passion, prejudice, partiality,
corruption, or unwitting plain mistake; denial of de
novo hearing in probate court
99-245 Fowler, Gary v. Town of Seabrook*
John S. Krupski Robert D. Ciandella
Wage claim - whether RSA 275:48, I, applied; whether
town diverted wages of claimant; whether superior court
had jurisdiction where court determined matter was
arbitrable; whether court erred in awarding attorney's
fees
99-249 State of NH v. DeCosta,* Dana
Attorney General Gerald J. Boyle
Aggravated felonious sexual assault, felonious sexual
assault, making obscene material available, providing
alcohol to a minor - admission of expert testimony
about sexual abuse accommodation syndrome; duplicative
indictments; sufficiency of evidence; failure to
instruct jury that law forbids evidence of victim's
sexual relations with third persons after State argued
to jury that there was no evidence that any person
other than defendant had sexual relations with victim
99-251 In the Matter of Deborah (Houston) Varney and James
Krajniak, Sr.*
Sarah E. Heintz for Krajniak
Alethea L. Froberg for Varney
Child support - lack of notice of hearing on issue of
child support; failure to address contempt issue;
failure to explain calculation of child support;
whether child support complied with guidelines;
modification of child support prior to expiration of
three years; whether court erred by increasing child
support
99-253 Crawford, Christine v. Goodwill Industries
Leslie C. Nixon of New England*
Glenn R. Milner
Wrongful termination - whether firing violated public
policy; failure to grant motions to dismiss;
sufficiency of evidence of bad faith
99-255 Town of Plaistow Board v. Town of Plaistow
of Selectmen Board of Adjustment
Timothy Bates Richard Taylor*
Scott E. Woodman for ZBA
David C. Engel for Taylor
Municipal regulation - variance; whether request for
rehearing met statutory requirements; whether town
manager was authorized to request rehearing on behalf
of plaintiff; whether court erred in finding no
hardship and reversing grant of variance
99-259 State of NH v. Sawyer,* Buffie Mary
Attorney General James E. Duggan
Claude T. Buttrey
Felon in possession of firearm, narcotics offense -
motion to suppress; whether defendant consented to
officer's entry into her apartment; whether probable
cause existed to issue search warrant
99-264 Bliss,* Robert v. Stow Mills, Inc.
Finis E. Williams, III James R. Davis
Wrongful termination - whether Surface Transportation
Act of 1982 preempts any State remedy
99-268 Becker,* Anne, Appeal of
(compensation appeals board)
Peter M. Solomon
Stephen J. Schulthess
Attorney General
Workers' compensation - whether housekeeping services
were remedial in nature and necessary to petitioner's
medical well-being; whether statute excludes coverage
for housekeeping services
99-273 State of NH v. Crowley,* Dennis
Attorney General Gerard J. Boyle
Driving while intoxicated - lack of evidence that
alleged offense occurred on date alleged in complaint;
lack of evidence that defendant operated motor vehicle
99-274 State of NH* v. Espinoza, Jose
Attorney General Robert J. Moses
Operating after certification as habitual offender -
whether defendant was seized when police stopped to
assist disabled car and requested defendant's license
and registration; whether seizure was reasonable in
light of community caretaking function of the police
99-276 Goffin,* Noreen v. Tofte, Christian E. d/b/a
Martin R. Jenkins S.C. National
Construction d/b/a C.E.T.
Associates
John Curran
Negligence - whether res judicata bars bodily injury
claim brought after litigation of construction contract
was concluded; whether stipulation filed in bankruptcy
court prevents defendant from arguing that plaintiff
cannot pursue State court action
99-285 Pozniak,* Elizabeth v. Mansur, John E., Town of
James A. Nadeau Pelham
Richard A. Mitchell Edward Richards
Diane M. Gorrow
Municipal regulation - whether court erred in not
assuming all facts in favor of plaintiff on motion to
dismiss for lack of standing; failure to permit
evidentiary hearing; whether court erred in construing
RSA 676:15 to require abutter to show she has suffered
quantifiable special damages
99-305 Rayeski,* Jonathan v. Gunstock Area/Gunstock
Francis X. Quinn Area Commission
Joseph M. McDonough, III
Negligence - night skiing; whether court failed to
solely consider allegations in plaintiff's pleadings in
light most favorable to plaintiff on motion to dismiss;
whether court erred by assuming plaintiff lost control
while skiing; whether defendant had duty to maintain
pads on light pole on ski slope; whether collision with
light pole that was virtually invisible to skiers is
inherent risk of sport; whether claim is barred by RSA
225-A:24
Note: The court has consolidated 99-192 and 99-193.