New Hampshire Supreme Court
Cases Accepted - October 1999
* denotes appealing parties
98-636 State of NH v. Ouellette,* Jay
Attorney General James E. Duggan
Caroline L. Smith
Simple assault, criminal threatening - enhanced
penalties; whether court erred in sentencing defendant
for more than one year on charges not brought before
the grand jury; failure to award pretrial credit;
sufficiency of evidence
99-017 Mikell,* Heidi L., Appeal of
(compensation appeals board)
Mark S. Gearreald
Paul Salafia
Attorney General
Workers' compensation - computation of average weekly
wage; failure to require employer to produce wage
schedules of other employees doing same work as
claimant; whether board erred by awarding benefits at
diminished capacity rate; denial of retroactive total
disability benefits
99-234 North Country v. Town of Bethlehem*
Environmental Services,
Inc.
Town of Bethlehem* v. North Country
Robert A. Olson for NCES Environmental
Bryan K. Gould for NCES Services, Inc.
Philip R. Waystack, Jr.
for Town
Jonathan S. Frizzell
for Town
Municipal regulation - expansion of landfill; whether
court erroneously interpreted language of variance and
special exception; whether court's legal ruling on
express and implied conditions imposed by zoning board
of adjustment was in error; exclusion of evidence on
authentication grounds; municipal estoppel; cross-
appeal - whether variance was partially waived; whether
zoning ordinance is preempted by RSA chapter 149-M,
ultra vires, in violation of zoning enabling act, or
unconstitutional; failure to award builder's remedy;
whether ordinance passed and enforced in bad faith,
justifying an award of attorney's fees
99-302 State of NH v. Cannon,* James R.
Attorney General James E. Duggan
Joachim Barth
Operating after certification as habitual offender -
motion to suppress; whether police improperly stopped
defendant's car after observing car weaving within
travel lane
99-308 State of NH v. Blackmer,* Paul
Attorney General James E. Duggan
Glenn G. Geiger, Jr.
Conspiracy to possess and intent to sell marijuana -
numerous issues including denial of bill of
particulars; denial of motions to suppress; prior bad
acts; lack of speedy trial; sufficiency of evidence;
constitutionality of RSA 625:4 -- whether conspiracy to
commit an offense in another State is a crime in NH;
jury instructions; illegal sentence
99-385 State of NH v. Batista,* Joldie
Attorney General James E. Duggan
Sven D. Wiberg
Possession of narcotic drug with intent to sell,
accomplice to sale of narcotic drug - whether State's
actions of nol prossing charges twice and reindicting
on same allegations violated due process, right to
present all favorable proofs, or speedy trial rights;
failure to prove chain of custody of drugs; sufficiency
of evidence
99-396 Nashua Housing v. Pickard, Mary
Authority* pro se
Arthur O. Gormley, III
Landlord-tenant - eviction; whether district court has
authority to allow tenant to cure breach of lease and
dismiss landlord-tenant action if tenant cures breach
subsequent to trial
99-422 Petition for Declaratory Judgment: Elizabeth Robbins
Estate
Michael E. Chubrich, for Pamela Robbins* and Michael
Robbins*
David J. Braiterman, for Bertha G. Johnson,
Administrator of the Estate of Elizabeth C. Robbins,
Bertha G. Johnson & Susan Wright as co-trustees and
beneficiaries of Elizabeth C. Robbins Trust u/d/t
January 4, 1996
Trusts - whether self-settled revocable trust that is
sole legatee of grantor's pour-over will is a
testamentary instrument subject to pretermitted heir
rule of RSA 551:10
99-427 State of NH,* Appeal of
(public employee labor relations board)
Attorney General
Michael C. Reynolds
Unfair labor practice - holiday pay; whether board
erred by construing collective bargaining agreement
provision as including part-time employees; whether
board erred by ordering State to pay holiday pay when
State agencies lack legal authority to make such
payments; whether board erred in finding enforceable
past practice and requiring continuation of that
practice unless State affirmatively negotiates right to
alter it; sufficiency of evidence
99-428 Miner, Frederic, Susan v. A & C Tire Co.,
Miner, Joseph Czarnecki Inc.,*
Diane M. Gorrow Alden Illsley, Cheryl
Illsley, Town of Atkinson
Board of Selectmen,
Ronald LeBlanc
John J. Ryan
Nuisance, enforcement of zoning ordinance - whether
court erred by ordering defendants to cease commercial
use of property after 30 years of continuous unchanged
activity; failure to timely prosecute injunction
action; estoppel
99-434 State of NH v. Grimard,* Maurice
Attorney General James E. Duggan
Rodkey Craighead, Jr.
Sale of cocaine, possession of cocaine with intent to
dispense, conspiracy - failure to give requested jury
instructions on entrapment
99-437 The Birches Condominium v. Properties of LPS, Inc.*
Association William A. Bevelaqua, pro
Mark D. Kanakis se
Condominium fees - whether lien for fees, assessments,
and attorney's fees was recorded timely and perfected
pursuant to RSA 356-B:46; whether years' worth of fees
may be incorporated into single lien; whether
condominium association must file successive memoranda
of lien every six months to recover from a subsequent
purchaser
99-441 Trull,* Elizabeth, v. Volkswagen of America,
Nathaniel Trull, by his Inc., Volkswagenwerk,
father and next friend A.G.
David Trull, David Trull Howard B. Myers
individually and as Bryan K. Gould
administrator of the
Estate of Benjamin Trull
David P. Anqueira
Edward M. Swartz
Lisa V. Kaprielian
John J. Cronin III
Products liability - automobile design; in an enhanced
injury case, does plaintiff bear the burden of
demonstrating the specific nature and extent of the
injuries attributable to the manufacturer, or does the
burden of apportionment fall on the defendant once the
plaintiff has proved causation; certification from
First Circuit Court of Appeals
99-446 State of NH v. Krueger,* Kyle
Attorney General Paul J. Garrity
Aggravated felonious sexual assault, attempted
aggravated felonious sexual assault, felonious sexual
assault, simple assault - denial of motion to dismiss
multiplicitous indictments; failure to suppress based
on general warrant where search warrant did not
particularly describe videotape sought; failure to
suppress where police conducted warrantless viewing of
videotape; failure to suppress videotape obtained by
police by directing private citizen to bring videotape
to police station
99-456 Citizens Bank (Haynes v. Town of Meredith*
Management, Inc.) Matthew J. Leahy
James N. Sessler
Property tax abatement - sufficiency of evidence of
court's valuation of property; whether court erred in
awarding attorney's fees and costs
99-468 Johnson, Mark v. Wheeler,* Wayne, Donald
Thomas A. Fredenburg Jones
James F. Raymond
David P. Slawsky
Landlord-tenant - whether RSA 540-A, which authorizes
damages for each day landlord denies tenant access and
possession of premises, permits the court to impose an
award of days in which the tenant was incarcerated and
days in which landlord held property for tenant when
the property was available to tenant upon request
99-469 Jankowski, Robert v. Acadia Insurance
J., Mary Jankowski Company,*
Claudia Damon Concord General Mutual
Insurance Co. (The
Concord Group Insurance
Companies)
Melinda S. Gehris
Gordon Rehnborg, Jr.
Underinsured motorist coverage - whether plaintiff was
"occupying" truck at time of impact
99-471 Londonderry Neighborhood Coalition,* Appeal of
(energy facility site evaluation committee)
Brian C. Goudas
Gregory H. Smith
Attorney General
Energy facility - whether board erred by approving
application to build and operate natural gas power
facility where appeal of EPA permit was pending; denial
of rehearing where state agency's conditions were not
issued until after adversarial hearing and required
state agency reports were incomplete at time of board's
approval; denial of due process and equal protection
99-473 Certain Underwriters at v. The Home Insurance
Lloyd's London, The Company*
Dominion Insurance Company Margaret H. Nelson
Ltd., Excess Insurance Jonathan Rosen
Company Ltd., River Thames
Insurance Company Ltd.,
The World Auxiliary Insurance
Corporation Ltd., Swiss
Union General Insurance
Company Ltd., Minister
Insurance Company Ltd.
Andrew D. Dunn
Robert B. Robinson
Reinsurance contract - breach of notice obligations;
whether plaintiffs established prejudice; whether
defendant was guilty of gross negligence
99-480 Matarese,* Maureen v. New Hampshire Municipal
Peter M. Solomon Association Property-
Liability Insurance
Trust, Inc.
David A. Garfunkel
Uninsured motorist benefits - whether Fireman's Rule
bars petitioner from seeking contractual uninsured
motorist coverage despite the actual fault of the
tortfeasor
99-484 Marshall,* John, Keene v. Keene State College
State College Education William Saturley
Association, NEA-NH
James F. Allmendinger
Arbitration - lifetime cap on health insurance benefits
for mental illness; failure of court to review
arbitrator's decision for errors of law; whether
college unlawfully discriminated on basis of
disability; whether cap on mental health benefits
violates both collective bargaining agreement and
Americans with Disabilities Act
99-486 State Line Steel Erectors,* Liberty Mutual Insurance
Company, Appeal of
(compensation appeals board)
James E. Owers
Joseph F. McDowell, III
David C. Dunn
Attorney General
Workers' compensation - whether board erred by awarding
permanent impairment for loss of mental status or
higher level brain function absent medical evidence
that loss of these abilities caused any loss of
physical function of a scheduled body part
99-487 Chapman, Bertha M, v. Douglas, Charles G.
administratrix of the III
Estate of Mary H. Chapman Susanna G. Robinson
Ralph F. Holmes
Attorney General
Caroline Douglas
William L. Chapman, for the
Associated Press*
Theodore Kamasinsky, pro se
Powers of attorney - whether probate court has
jurisdiction to determine constitutionality of RSA
506:7's provision that hearings shall be closed to the
public unless good cause is shown; whether RSA 506:7 is
unconstitutional; whether Petition of Keene Sentinel,
136 N.H. 121 (1992), applies to court proceedings as
well as to court records; interlocutory transfer
without ruling
99-505 Old Street Barn, LLC* v. Town of Peterborough
Beth R. Fernald Joseph J. Byk, Jr.
Gregory J. Wenger, for
intervenors
Municipal regulation - zoning; numerous issues
including jurisdiction of zoning board of adjustment
(ZBA); whether proposed increase in water operations
might violate zoning ordinance; sufficiency of
evidence; failure of ZBA to give reasons for decision;
use of incorrect standard of review by court; whether
court erred in limiting review of zoning ordinance to
sections specifically argued in pleadings
99-521 Wintle,* Gary, Appeal of
(compensation appeals board)
Christopher A. Bandazian
Eric P. Bernard
Attorney General
Workers' compensation - double benefits; whether
employees of private businesses are excluded from
double benefits under RSA 281-A:33; whether RSA 277:1-b
as applied to petitioner's double benefits claim
violates equal protection and due process; whether
employer is barred from raising as a defense that
employer had not been cited by labor department where
employer failed to report prior accidents to department
of labor
99-524 Sanderson,* Julee, v. Town of Candia, New
Trustee Hampshire, Town of
of Candia Rangeway Candia Planning
Realty Trust Board
Susan V. Duprey Barton L. Mayer
Thomas Quarles, Jr.
Municipal regulation - cluster subdivision application;
numerous issues including denial of hearing; whether
planning board violated Right-to-Know Law; failure of
planning board member to recuse himself; estoppel;
impermissible taking; denial of discovery
99-532 Stearns,* Catherine, Appeal of
(compensation appeals board)
Peter Marsh
Charles Giacopelli
Attorney General
Workers' compensation - whether appellant entitled to
evidentiary hearing on compensability of medical bills
and claim that her request for hearing was timely filed
under statutory discovery rule; whether jurisdiction of
compensation appeals board extends to decisions of
Labor Commissioner
99-533 Cummings, Maxine v. R.E. Property
Purcell Management &
Thomas C. Csatari Development, Inc.
d/b/a The Harold
Louis Group*
Catherine A. Feeney
Attorney's fees - whether court erred in awarding
attorney's fees to plaintiff based on stipulated
judgment for damages for the plaintiff
99-544 State of NH v. Cogliano,* Michael
Attorney General Philip Desfosses
Driving while intoxicated, subsequent offense -
admission of court records that were not properly
authenticated; whether court records from another state
are domestic public documents under seal pursuant to NH
Rule of Evidence 902(1)
99-626 Breen, Pamela p/p/a v. Londonderry School
Nicole M. DeAngelis District*
James E. Townsend John P. Sherman
Negligence - municipal immunity; whether school
district is entitled to discretionary function immunity
on claim that it failed to implement proper maintenance
and supervisory procedures regarding playground;
whether court correctly denied discretionary function
immunity on ground that activity was inherently
dangerous; whether plaintiff failed to present
sufficient expert testimony on standard of care or
regarding design and construction of playground;
interlocutory appeal