Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - March 1999

      * denotes appealing parties

98-314    Rattee, Debra            v.   Rattee,* Steven
          Robert E. Bowers              David J. Braiterman
          Divorce - failure to depart from child support
          guidelines; improper calculation of defendant's income;
          failure to make retroactive adjustment for child
          support; whether court effectively penalized defendant
          twice for his high income by adding portion of income
          to value of business as an asset while not adjusting
          income when calculating child support under support
          guidelines; cross-appeal - failure of court to use fair
          value of business in dividing parties' assets; whether
          court erred in deducting $79,144 from value of parties'
          interest in business for debt for which defendant
          offered no evidence or explanation

98-525    Affordable Computer      v.   Douglas, Caroline George*
          Tech., Inc.                   pro se
          Catherine A. Cheney, pro se   

          Small claims - whether court must remove small claims
          action to regular docket upon request; whether court
          erred by denying request to remove small claims action;
          whether procedure that does not result in removal of
          small claims is unconstitutional

98-533    Truehart,* Michael B.    v.   Old Republic Insurance 
          Robert K. MeKeel              Company                  
                                        Robert S. Carey

          Uninsured motorist coverage - choice of law; whether
          Vermont law governs question of insurance policy
          coverage; whether policyholder validly directed
          different monetary limits for uninsured motorist
          coverage pursuant to 23 Vt. Stat. Ann.  941(c)

98-623    Merchants Rent-A-Car*    v.   Arbella Protection Ins. 
          James B. Kazan                Co.
                                        Robert E. Dunn, Jr.

          Automobile insurance - whether a non-owned rented cube
          van qualifies as a "non-owned auto" under the policy

98-664    Asselin,* Susan, Appeal of
          (compensation appeals board)
          James F. Lafrance
          John E. Vinson
          Attorney General

          Workers' compensation - causation; whether offensive
          sexual behavior at work was cause of claimant's
          physical and mental stress injuries; whether claimant's
          activities with sexually offensive co-worker were
          consensual; whether claimant's activities rose to level
          of serious and willful misconduct

98-684    City of Manchester, New Hampshire,* Appeal of
          (public employee labor relations board)
          Daniel D. Muller, Jr., for City of Manchester
          James C. Anderson, for AFSCME
          Attorney General

          Bargaining unit modification - whether parks utility
          supervisor and recreation utility supervisor were
          persons exercising supervisory authority involving the
          significant exercise of discretion; sufficiency of
          evidence; whether hearing officer erred by denying City
          opportunity to present evidence regarding matters that
          hearing officer later referred to in her findings and

98-699    City of Berlin           v.   County of Coos*
          Robert Upton II               David D. King
          Charles W. Grau               Jonathan S. Frizzell

          County tax assessment - whether city's failure to
          appeal its equalized property valuation bars it from
          equitable relief; whether county's tax assessments were
          disproportionate in violation of State Constitution;
          whether court order prohibiting county from collecting
          unpaid county taxes was abuse of discretion;
          consideration of non-record facts

98-772    Fassi, Charles, Jodie    v.   Auto Wholesalers of
          Fassi                         Hooksett, John Kelly
          pro se                        pro se

          Breach of warranty - failure to allow defendant to
          testify; whether repair items were covered by warranty
          on used vehicle

98-773    State of NH              v.   Lavallee,* Randy
          Attorney General              James E. Duggan
                                        Paul Garrity
                                        Brian O'Connor

          Aggravated felonious sexual assault, felonious sexual
          assault - denial of motion to dismiss where State
          withheld exculpatory evidence; sufficiency of evidence;
          ineffective assistance of counsel

98-782    Gallentine, Darlene      v.   Geis,* Frank J. d/b/a 
          Steven M. Latici              Architectural Inspections
                                        Edward D. Philpot, Jr.

          Breach of contract - home inspection; whether court
          erred by allowing plaintiff a post-trial hearing to
          produce evidence of damages that were unsupported at

98-786    Pope, David              v.   Little Boar's Head  
          John A. Bell                  District,* Town of
                                        North Hampton
                                        Charles F. Tucker

          Municipal regulation - special exception; whether court
          erred in finding that defendant applied zoning
          ordinance in discriminatory manner; failure to rule on
          special exception per se; cross-appeal - whether court
          erred in fashioning remedy for discriminatory
          application of zoning ordinance; whether zoning
          ordinance illegally restricts property owners from
          intensifying a nonconforming use

98-797    Przekaza, Genevieve      v.   General Accident Ins.
          Joseph F. McDowell III        Company of Canada*
                                        Cynthia L. Fallon

          Automobile liability insurance - whether nonparty to
          insurance contract has standing to assert ambiguity in
          contract; whether contract is ambiguous as to number of
          vehicles covered

98-814    MacDonald,* Ian          v.   Bishop, David
          Robin C. Curtiss              Lawrence Smith

          Medical malpractice - whether court erred by precluding
          two witnesses from testifying to statements plaintiff
          made about the condition of his tongue

98-828    Kinetic Systems, Inc.*   v.   The McClier Corporation, 
          Thomas J. Pappas              Celltech Biologics, Inc.,
          Glenn H. Haese                Pease Development
                                        Authority, State of NH
                                        Attorney General
                                        Richard V. Wiebusch
                                        Thomas Donovan

          Breach of contract, quantum meruit - whether court
          erred in ruling after a hearing on motions not
          scheduled for that hearing; failure to make findings of
          fact and rulings of law; whether plaintiff alleged
          sufficient facts to state a claim

99-005    In the matter of Sandra Cereola (Johnson)* and Darren
          Elizabeth Cazden
          Carolyn S. Garvey

          Post-divorce proceedings - whether plaintiff has
          constitutional right to relocate with children to
          Virginia where plaintiff's current husband is employed;
          whether plaintiff showed that proposed relocation was
          for a legitimate purpose; denial of motion to modify
          visitation schedule; right to travel

99-006    Bursey,* Faith R.   v.   Baxter, Peter J., President
          Dorothy F. Silver        CFX Bank
                                   Michael P. Bentley
          Negligence, conversion - whether defendant acted in
          good faith and in accordance with reasonable commercial
          practices in accepting checks for deposit with missing
          endorsements and placing funds in joint account, in
          guaranteeing missing endorsements of co-payee where co-
          payee was not a bank customer and did not authorize the
          transaction, and in depositing checks in joint account
          where account was established without authority of one
          of the co-owners of the account; cross-appeal -
          retrospective application of RSA 382-A:3-420; whether
          bank converted checks that were returned unpaid;
          failure of court to apply federal regulations governing
          electronic transfer of funds; excessive damage award

99-007    State of NH              v.   Etienne,* Dickens
          Attorney General              James E. Duggan
                                        Timothy M. Landry
                                        Stuart M. Hurowitz

          Attempted murder, first degree assault - failure to
          recuse county attorney's office; failure to allow
          cross-examination of one witness as to motive to
          testify falsely and one witness as to past incidents of
          dishonesty; exclusion of witness who was believed by
          police at one time to have committed crimes at issue;
          denial of mistrial where judge's illness made it
          apparent to jury that judge fell asleep; denial of new
          trial where State violated defendant's rights under
          Vienna Convention on Consular Relations

99-008    State of NH              v.   Carlson,* Carl
          Attorney General              James E. Duggan
                                        Stephen T. Jeffco

          Felonious sexual assault - denial of mistrial based on
          prosecutor's questions relative to age of defendant's
          child and age of child's mother; whether evidence
          supported finding that defendant was chargeable on
          probation violation

99-010    Contractors Crane Services, Inc.,* Appeal of
          Giguere,* Ronald, Appeal of
          (compensation appeals board)
          J. Kirk Trombley
          Andrew A. Merrill
          James E. Owers
          Donna M. Head
          Attorney General

          Workers' compensation - whether subcontractor had
          "secured the payment of compensation" where its
          insurance company had denied workers' compensation
          coverage; whether board erred in excluding evidence of
          offer of employment made after department of labor
          decision but before compensation appeals board hearing

99-015    Blagbrough, William and  v.   Town of Wilton, New
          Corinne                       Hampshire*
          Steven A. Bolton              John P. Sherman

          Trespass - whether bridge contained in private road
          leading to a private home is public; whether defendant
          trespassed upon land at entrance to bridge; whether
          court erred by reversing its prior summary judgment
          order; cross-appeal - dismissal of counts alleging
          misrepresentation, temporary taking and seeking
          injunctive relief; failure to properly measure damages;
          exclusion of damages evidence

99-162    Marin Way Investments Corp.   v.   True Product
          Stephanie Bray                     Sampling, Inc.,*
                                             On Demand
                                             Digitalgraphix, LLC
                                             Kenneth D. Murphy

          Landlord-tenant - commercial eviction; exclusion of
          agreement between parties regarding waiver of demand
          for rent; whether demand for rent was proper where it
          included unpaid taxes and insurance; failure to provide
          notice of default pursuant to lease