Judicial Branch, State of New Hampshire

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.