Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - May 1999

	* denotes appealing parties

98-560    Kaplan,* Andrew S.      v.    Booth Creek Ski 
          James F. Miles                Group, Inc.,
          Bradford W. Kuster            LMRC Acquisition          
                                        Christopher Cole
                                        Michael Harvell
                                        Kevin M. Fitzgerald
          Securities takeover disclosure act - whether
          acquisition fell within plain meaning of "offeror" and
          "takeover bid" in RSA ch. 421-A; whether court erred in
          finding legislature intended to exempt type of takeover
          in this case; whether plaintiffs alleged a claim upon
          which relief may be granted

98-652    Milford Lumber Company   v.   Jeff Howe d/b/a Welcome
          Donald Crandlemire            Homes, Inc., RCB Realty,
                                        Inc.,* and/or RCB        
                                        Realty, d/b/a Team       
                                        Berube Real Estate,*     
                                        Richard Berube,*
                                        Leslie Berube, First
                                        Eastern Mortage
                                        Corporation and First
                                        Federal Savings Bank of
                                        James B. Hobbs
          Breach of contract, misrepresentation, Consumer
          Protection Act, unjust enrichment - whether plaintiff
          is "consumer" within meaning of Consumer Protection
          Act; award of attorney's fees under Consumer Fraud

98-700    Boutin, Thomas, Bonnie   v.   Moore Deals, Inc. d/b/a
          Boutin                        American Eagle Homes
          Barry C. Schuster             d/b/a Moore Homes, Connie
                                        Wolfson, Champion Home
                                        Builders Co./Titan Homes
                                        James E. Owers
                                        Philip G. Lake
          Manufactured housing - breach of warranty, rescission,
          misrepresentation, Consumer Protection Act; failure to
          reduce judgment against Champion by amount paid by
          other defendants in settlement of claims; whether
          Champion bore burden of proving that settlement related
          to counts for which all defendants were liable rather
          than counts against only settling defendants

98-701    National Employment      v.   Olsten Staffing Services,
          Service Corporation           Inc.*
          Bradley M. Lown               Jason W. Morgan
                                        Andrew W. Serell
          Interference with contractual relations, quantum meruit
          whether restrictive covenant precluding temporary
          employees from working for 90 days at client company
          was void; exclusion from evidence of national
          association's code of ethics; sufficiency of evidence;
          excessive damages; double recovery
98-740    In the Matter of Meredith Pettit and Charles Pettit*
          Elizabeth Cazden, for Meredith Pettit
          Michael Chamberlain, for Charles Pettit
          Post-divorce proceedings - child support modification;
          whether court has discretion to determine child support
          based on child's needs; failure to adjust support based
          on child support guidelines in light of respondent's
          high income and agreement to pay certain expenses

98-826    Tefft,* M. Elaine        v.   Town of Bedford, Mobil
          Stanton E. Tefft              Oil Corporation
                                        Barton Mayer
                                        James Tamposi, Jr.
          Municipal regulation - bad faith, malice, gross
          negligence; denial of hearing on attorney's fees for
          appellant after appeals of zoning variances and site
          plan approvals are dismissed as moot
98-834    State of NH              v.   Pelkey,* Richard
          Attorney General              James E. Duggan
                                        Chris McLaughlin
          Driving while intoxicated, subsequent offense - failure
          to exclude prior offense; admission of defendant's
          statement regarding proceeds of drug sales; improperly
          excusing juror; jury instructions; denial of mistrial
          after prosecutor made comment allegedly referring to
          defendant's failure to testify

98-837    State of NH              v.   Harkins,* John M.
          Attorney General              James E. Duggan
                                        Peter G. Callaghan
                                        Neil J. Reardon
          Theft by deception - imposition of deferred sentence;
          denial of due process and right to counsel; failure to
          vacate mittimus and suspend sentence
99-021    JAMAR d/b/a Dunkin Donuts* and Liberty Mutual Insurance
            Company, Appeal of
          (compensation appeals board)
          Michael R. Mortimer
          Stephen E. Borofsky
          Attorney General
          Workers' compensation - whether board has authority to
          reopen case after motion for rehearing was denied and
          appeal period has expired
99-028    State of NH              v.   Budgett,* Joshua
          Attorney General              James E. Duggan
                                        James P. Loring
          Imposition of suspended sentence - due process; whether
          court erred by imposing suspended sentence after
          defendant violated parole where defendant did not
          violate only specific condition court had previously
          imposed at time of sentence suspension

99-037    Pegasus Real Estate,     v.   Town of Plymouth*
          LLC                           Daniel D. Crean
          Margaret H. Nelson                 
          Property tax - abatement; under capitalization of
          income approach, whether court improperly adjusted for
          deferred maintenance; exclusion of evidence of amount
          of mortgage existing on premises one month after
          assessment date; exclusion of evidence of nature of
          assessments on other student rental housing in
          Plymouth; whether court's characterization of expert's
          credibility, stated prior to cross-examination,
          prevented full consideration of cross-examination and
          ability to test expert's credibility

99-039    Houle,* Patricia M.      v.   Circuit Technologies     
          Leslie C. Nixon               and Aetna Casualty and
                                        Surety Insurance Co. and
                                        NH Department of Labor
                                        James E. Owers
          Workers' compensation - mandamus petition; whether
          trial court erred in denying mandamus petition on
          ground that petitioner had other adequate remedies;
          whether department of labor was required to schedule
          hearing upon petitioner's request; whether claimant can
          meet standards of RSA 281-A:48 with evidence other than
          objective medical evidence of change in condition;
          whether scheduling of hearing is ministerial act; due

99-046    Webster,* Kenneth,       v.   Town of Candia, Town of
          Margaret Demos, as            Candia Planning Board
          trustees of the Kenneth       Barton L. Mayer     
          Webster Trust, Winthrop
          Robert E. Murphy, Jr.         
          Municipal ordinance - application to cut trees; whether
          scenic road statute is unconstitutionally void for
          vagueness; regulatory taking; whether planning board's
          decision was reasonable due to presence of alternative
          access; whether board's notice of decision was
          reasonable and lawful; whether evidence of wetlands
          impact was irrelevant; procedural due process

99-065    Metevier,* Pat, Appeal of
          (compensation appeals board)
          James E. Townsend
          Nelson Raust
          Attorney General
          Workers' compensation - attorney's fees; whether board
          failed to consider attorney's standing and skill
          involved in awarding attorney's fees; whether board
          erred in basing fees upon unwritten fee schedule or
          "range of approved rates"; whether board erred in
          awarding fee to attorney with 25 years of experience
          based on hourly rate of $130 in disregard of cases in
          which board had approved rate of $175 per hour

99-073    Beaverbrook Estates,*    v.   Schlapp, Frederick,
          Inc.                          Suzanne Schlapp
          Michael T. Ryan               Steven G. Shadallah
          Purchase and sales agreement - specific performance;
          whether provision in contract was condition precedent;
          whether plaintiff was in material default; whether
          failure to obtain subdivision approvals was occasioned
          through no fault of defendants; whether court erred in
          awarding deposit to defendants; unjust enrichment
99-092    White, Steven A.         v.   Caron,* Randall
          Kenneth M. Brown              William S. Orcutt
          Negligence - motor vehicle accident; whether service of
          process upon defendant's insurer was sufficient to give
          the court personal jurisdiction over the defendant
99-099    State of NH              v.   Finn,* Forrest
          Attorney General              Claude T. Buttrey
          Controlled drugs - inventory search; whether officer
          may open closed container during inventory search of
99-104    Delaney,* Frederick,     v.   State of NH
          Shirley Delaney               Attorney General
          James H. Gambrill        
          Flood control - immunity; whether State had established
          policy of addressing flooding of Route 1-A; whether
          State violated established policy; whether State is
          immune from suit for damages; whether State's actions
          under policy were ministerial or discretionary in

99-112    Krider,* Mark R.,        v.   New England Annual 
          Deborah L. Krider             Conference of United
          W. Wright Danenbarger         Methodist Church,* 
          Thomas W. Aylesworth          General Council on       
                                        Finance and
                                        Administration of
                                        United Methodist Church,
                                        United Methodist Church
                                        of Munsonville
                                        William L. Tanguay
                                        Andre A. Sancoucy
                                        William A. Mulvey, Jr.
                                        Thomas W. Porter, Jr.
          Negligence - direct and vicarious liability; violation
          of First Amendment by failing to exclude evidence
          related to collection, distribution, and spending of
          church funds; sufficiency of evidence; erroneous jury
          instruction; cross-appeal - whether trial court erred
          by dismissing claims against church based on strict
          scrutiny standard of Religious Freedom Restoration Act,
          which was later declared unconstitutional; failure of
          trial court to fairly cover issues and law of case in
          jury instructions

99-113    State of NH              v.   Desmarais,* Ronald
          Attorney General              James E. Duggan
                                        Hampton W. Howard
          Felonious sexual assault - motion for new trial;
          ineffective assistance of counsel

99-137    Martin,* Roger L., Adele v.   Commercial Union          
          V. Martin                     Insurance Company,
          Brian T. McDonough            Maine Mutual Fire
          Mark S. Gearreald,for         Insurance Company
          intervenors Robert and        Elizabeth A. Germani
          Cathleen Mark *
          Liability insurance - whether court erred in applying
          exclusion for bodily injury which is expected or
          intended by the insured; whether court erred in finding
          insured's actions were not accidental

99-145    State of NH              v.   Riendeau, Pierre
          Attorney General              James E. Duggan
                                        Andrew D. Correia
          Operating after certification as habitual offender -
          refusal to give jury nullification instruction and
          limiting defendant's argument on nullification;
          admission of irrelevant and prejudicial evidence

99-149    State of NH              v.   Mullen,* Martin
          Attorney General              Mark M. Rumley
          Aggravated felonious sexual assault, attempted
          aggravated felonious sexual assault, simple assault,
          assault of a prisoner - whether evidence of victim's
          psychiatric history as it related specifically to
          defendant was relevant; use of peremptory challenge to
          juror by State based on sex and ethnicity
99-152    State of NH              v.   Russo,* John
          Attorney General              James E. Duggan
                                        James D. Quay
                                        Richard E. Samdperil
          Theft by deception, theft by misapplication, forgery -
          admission of evidence of defendant's gambling losses;
          sufficiency of evidence on forgery indictment that
          writing was an instrument which represented an interest
          in actual property as required by RSA 638:1, III(b)
99-153    State of NH              v.   Englesbe,* Stephen P.
          Attorney General              Gerard J. Boyle
          Driving while intoxicated - whether defendant was
          improperly stopped and arrested, contrary to RSA
          105:13, by out-of-town police officer on routine patrol

99-155    Demir,* Cynthia          v.   Town of Rye, Gene 
          (Margolskee) and              Boccialette              
          Penny E. Margolskee           Michael Donovan          
          Craig N. Salomon              Gene Boccialetti, pro se
          Muncipal regulation - whether court erred by dismissing
          as party of record equitable owner of lots affected by
          planning board's action; whether plaintiff had interest
          in undeveloped street or undivided fee interest in
          Thompson Court; whether plaintiff has right to use
          Thompson Court for vehicular travel; whether court
          erred by allowing subdivision as a boundary line
          adjustment, where remaining land failed to meet zoning
          ordinance frontage requirements
99-160    State of NH              v.   Bathalon,* David
          Attorney General              Steven L. Maynard
          Second degree assault - failure to declare mistrial
          after court dismissed juror for juror misconduct;
          whether jury instructions on issues of recklessness and
          self-defense were erroneous
99-164    Emond,* Leonard, M.D.    v.   NH Department of
          Emile R. Bussiere, Jr.        Labor                    
                                        Attorney General

          Workers' compensation statute - whether RSA 281-A:38,
          II, which limits which physicians can perform
          independent medical examinations, violates equal
          protection or due process; whether trial court erred by
          substituting its own beliefs as to the purpose of the
          classification created by RSA 281-A:38, II
99-167    Jesurum,* Robert         v.   Mark, Rabbi David, Leslie
          Charles G. Douglas, III       Schwartz, Sanford and
                                        Helaine Roberts, Harold
                                        Moldoff, Diane Share,
                                        Bert Freedman, Andrew
                                        and Diane Karpman, Robert
                                        Goldberg, Hans
                                        Stephen L. Tober
                                        William Mulvey, for
          Intentional infliction of emotional distress - whether
          court erred in awarding attorney's fees to defendants
99-173    Flynn,* Kurk, Appeal of
          (personnel appeals board)
          Michael C. Reynolds
          Attorney General
          State employment - seniority; whether the term "leave
          without pay for personal ... purposes" includes an
          unpaid disciplinary suspension

99-174    Gauthier, Garry          v.   Morrissette,* George H.,
          Gerald Prunier                George H. Morrissette
                                        as Trustee of the GHM
                                        Revocable Trust
                                        James B. Kazan
          Specific performance - option to purchase realty;
          application of doctrine of equitable estoppel to claims
          of breach of management agreement; whether court erred
          in awarding attorney's fees in light of language in
          option agreement; whether court erred in awarding
          $5,000 per month to petitioner in attempt to provide
          lost benefits of the unexecuted option agreement
99-175    In the matter of Lenora Ann Fadden n/k/a Davidson* and
          Lawrence Dexter Fadden
          Arthur Mudge
          Lawrence Dexter Fadden, pro se
          Attorney General
          Petition to recover public assistance - child support;
          whether RSA 458:17, XI(d) authorizes State to reopen
          case to modify order when no public assistance had been
          given at time of order and there was no assignment of
          rights pursuant to RSA Chapters 161 or 167
99-179    Lord,* Belinda Joyce     v.   Lovett, James, M.D.,
          Edgar D. McKean, III          Samuel Aldridge, M.D.
                                        Ronald J. Lajoie
                                        Lawrence S. Smith
          Medical malpractice - claim for lost opportunity for a
          substantially better recovery; whether "lost
          opportunity" claim is precluded by RSA chapter 507-E;
          whether "lost opportunity" claim is a cognizable cause
          of action
99-190    Funai,* Richard, Cheryl  v.   Metropolitan Property &
          Funai                         Casualty Insurance Co.
          Steven A. Solomon             Wilfred P. Desmarais, Jr.
          Uninsured motorist claim - arbitration; whether policy
          is ambiguous and insured is entitled to arbitrate
          uninsured motorist claim; whether insurer's consent to
          settlement constituted consent to arbitration; estoppel

          Note:  The court has consolidated 98-727 and 99-113.