Judicial Branch, State of New Hampshire

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