Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - August 2000

	 * denotes appealing parties
96-356    Fournier,* Patricia,                                   
          (compensation appeals board)                           
          Janine Gawryl for Ms. Fournier                         
          James E. Owers for Sedgwick James of Northern N.E.     
          Attorney General
          Workers' compensation, amended appeal after remand -
          whether board erred in failing to make findings or
          rulings; whether board improperly shifted burden of
          production to claimant; whether decision supported by
          the record; whether competent medical testimony was
          required; refusal to review Guides to the Evaluation of
          Permanent Impairment; denial of request for rehearing;
          whether hearing before different panel on remand was
99-590    State of NH              v.   Deyo,* Jay
          Attorney General              James E. Duggan
                                        Stephen T. Jeffco
          Driving after certification as habitual offender,       
          driving while intoxicated, subsequent offense, conduct 
                    after an accident, false report to law
                    enforcement - denial of motion to suppress;
                    sufficiency of evidence
99-743    State of NH              v.   Rizzitano,* Joseph
          Attorney General              Paul J. Garrity
          Driving while intoxicated, second offense - double
          jeopardy; whether defendant's motion for mistrial with
          prejudice at first trial preserved defendant's
          objection to the granting of a mistrial without
          prejudice and further prosecution

00-025    State of NH              v.   Cole,* Alexander R.
          Attorney General              James E. Duggan
                                        John Glynn
          Felonious sexual assault - whether imposition of
          extended term of imprisonment violated double jeopardy;
          whether sentence is unconstitutionally
          disproportionate; whether State v. Hennessey should be

00-063    State of NH               v.  King,* Scott
          Attorney General              James E. Duggan
                                        Caroline L. Smith
          Manslaughter - whether tape of call to 911 was
          inadmissible hearsay; exclusion of statements or
          findings referenced in a P.A.C.E. evaluation as
          rebuttal evidence; exclusion of prior bad conduct of
          victim; sufficiency of evidence to disprove self-
00-071    Manias, Mary Lou, Louis   v.  City of Concord, Cedar 
          Manias, Barbara Reed,           Grant, LLC*
          Leon Reed, Joan Wright-Reno,  James F. Raymond
          William Reno, Shelley         Peter J. Loughlin
          Miknaitis, Roger Miknaitis,
          Donna Muir, Jane Grushynsky,
          Derek Grushynsky, Betty
          Mercer, Faith Savelo,
          Peter Savelo, Tina
          Daniels, Tim Daniels
          Jed Z. Callen       
          Municipal regulation - whether Cedar Grant has a vested
          right to complete project approved by planning board;
          whether any vested right was lost by abandonment
00-072    State of NH              v.   Kane,* Shaun
          Attorney General              James E. Duggan
                                        Dennis P. O'Connor
                                        Philip R. Desfosses
          Felon in possession of firearm - motion to suppress
          search of rented storage unit; whether affidavit in
          support of search warrant alleged nexus between items
          sought and place to be searched
00-083    State of NH              v.   McKean,* Ronald E.
          Attorney General              James E. Duggan
                                        Gary Apfel
          Kidnapping, criminal threatening - untimely indictment;
          double jeopardy; failure to strike juror for cause;
          misleading jury instructions regarding nature of
          alternative indictments; sufficiency of evidence;
          incorrect response to jury question; failure to order
          psychiatric evaluation prior to imposition of sentence

00-116    State of NH              v.   Russell,* Benjamin
          Attorney General              James E. Duggan
                                        David Hammerstad
          Driving after certification as habitual offender -
          whether charged offense is properly classified as a
00-140    Merrimack Valley Wood    v.   Near, Glen
          Products, Inc.,* American     Jamie N. Hage
          Cabinet Corp.                 Robert J. Lloyd     
          Thomas J. Donovan        
          Employment contract - noncompetition covenant; whether
          court erred by refusing to reform nonsolicitation
          language of agreement; whether plaintiffs acted in bad
          faith by presenting agreement to employee six months
          after start of employment; whether contempt motion was
          moot; law of the case; whether defendant may recover
          damages and costs in the absence of an injunction bond;
          whether court erred in awarding damages and attorney's
          fees to defendant
00-158    CNA Insurance Companies,* Appeal of
          (compensation appeals board)
          James E. Owers
          Stephen A. Duggan
          Andrew A. Merrill
          Lillian Whitcomb, pro se
          Attorney General
          Workers' compensation - whether date of injury was date
          claimant left work (1/9/99); failure of board to accept
          uncontradicted expert testimony that claimant lost
          earning capacity in 1995; whether board erred by
          relying exclusively upon claimant's earnings to
          conclude claimant had no loss of earning capacity
00-172    Crowley, William,        v.   Frazier,* Sharon
          Deborah Crowley               Gabriel Nizetic
          William Egge        
          Landlord-tenant - whether RSA chapter 540-A authorizes
          claim for breach of implied warranty of habitability;
          sufficiency of evidence that landlord acted willfully;
          failure to prove damages; waiver

00-175    Collier,* Diane          v.   Stern, Herbert
          David P. Slawsky              Edwinna C. Vanderzanden
          Breach of contract, promissory estoppel, detrimental
          reliance, reasonable housing and support - whether
          defendant was liable for uninsured costs of dental
          treatment; failure to enforce order requiring defendant
          to produce telephone records and bank records;
          exclusion from evidence of greeting cards based on
          failure to produce them during discovery
00-182    Gendron,* Fred           v.   Town of Pelham
          Donald E. Gartrell            Diane M. Gorrow
          Andrew B. Eills
          Municipal regulation - junkyard license renewal;
          whether court relied upon wrong statute; whether
          nuisance existed justifying denial of junkyard license
          renewal; whether regulatory taking occurred entitling
          plaintiff to compensation
00-185    In the Matter of James McCusker* and Joan McCusker
          Ruth P. Gulick
          Robert J. White
          Post-divorce proceedings - whether court can rewrite
          property settlement decree to accommodate a
          circumstance unforeseen by either party at the time of
          the original order
00-187    Revolution Portfolio,    v.   Feldman, Jerald R., 
          LLC                           individually and as 
          James F. Ogorchock            Trustee of the JONMYC
                                        Realty Trust
                                        Jason A. Manekas
                                        Peter B. McGlynn
                                        Mark S. Derby, for the
                                        intervenors Jonathan
                                        Feldman,* Mychal Feld-
                                        man, Zachary Feldman, 
                                        Marissa Feldman
          Judgment - execution; whether defendant was a
          beneficiary of JONMYC Realty Trust; whether trust
          beneficiaries consented to defendant's use of trust
          assets as collateral; whether trust assets could be
          reached by defendant's later-acquired personal
          creditors; whether superior court had jurisdiction to
          set aside trust

00-191    International Brotherhood of Police Officers,* Appeal
          (public employee labor relations board)
          Peter C. Phillips
          Gary W. Wulf
          Attorney General
          Public employee labor relations - whether probationary
          employee is protected from discrimination under RSA
          273-A:5 for engaging in union activities
00-194    State of NH              v.   Cassell,* Jerome
          Attorney General              Paul Twomey
          Aggravated felonious sexual assault - motion for new
          trial; failure to make complete record of jury
          selection; failure to explain why jurors were excused;
          ineffective assistance of counsel; allowing witness to
          flout subpoena without consequence
00-197    Kumar, A. Jack           v.   Brochu,* Douglas Sr.
          Mark Hanlon                   Anthony S. Hartnett
          Landlord-tenant - eviction; whether defendant was in
          arrears; whether lease should be terminated for failure
          to pay $15 liquidated damages pursuant to RSA 540:9;
          res judicata
00-203    Cisneros, Juan Pablo,    v.   Budget Car & Truck
          Ariane Hentsch                Rental*
          pro se                        Michael J. Atkins
          Damages to rental vehicle - small claims; failure to
          default plaintiff who did not appear for hearing;
          allowing absent plaintiff to present unverified
          statement of plaintiff at trial; sufficiency of
00-205    In re Diane R.
          Ruth A. Hall, for the parents*
          Attorney General
          Child abuse and neglect proceedings - whether statutory
          provision for de novo appeal from final dispositional
          order fails to protect parents' constitutional rights
          where DCYF investigation does not result in criminal
          charges but does result in removal of child from
          parents' custody and continues to result in greater
          alienation of the family members from lack of inclusion
          in DCYF decisions

00-206    State of NH             v.     Bashaw,* Darren
          Attorney General               James E. Duggan
                                         Nancy A. DeAngelis
          First degree assault - admission of recorded
          recollection made hours after assault by witness who
          was impaired by alcohol; exclusion of victim's
          misdemeanor convictions for crimes of violence and
          prior bad act of stealing a police badge; whether court
          erred in instructing jury on use of deadly force in
          self-defense and on mutual combat
00-210    McKinnon, Kevin          v.    Jean,* Bob
          pro se                         pro se
          Breach of contract - sale of puppy; awarding judgment
          in excess of claim and over $1500 limit, entitling
          defendant to jury trial
00-216    MacMillan,* Alexander, as     v.   Scheffy, Brackett
          trustee of the Dickson             L., Stephen Toy,
          Family Irrevocable Trust,          Karen Toy
          Tracy Dickson, Patricia            Brackett L. Scheffy
          Dickson                            Katherine B. Stearns
          W.E. Whittington                   
          Breach of warranty, negligence - damages; whether trial
          court's award directly contradicted jury verdict form;
          whether court erred in ordering set off; cross-appeal -
          whether court erred by directing verdict for
          plaintiffs; admission of nonexpert testimony of
          plaintiff on comparative value of property with and
          without restrictive covenant
00-222    Town of Litchfield,* Appeal of
          (public employee labor relations board)
          Robert R. Lucic
          Wayne Soini
          Attorney General
          Public employee labor relations - whether firefighters
          are irregularly employed or on call employees and thus
          ineligible for membership in bargaining unit; whether
          deputy town clerk/tax collector is appointee or
          otherwise ineligible for membership in unit

00-223    State of NH              v.   Spaulding,* Bert Jr.
          Attorney General              Paul Twomey
          Sale of represented controlled drug - whether court
          erred in relying on prosecutor's unsupported
          representations in imposing sentence; denial of pre-
          trial credit against jail sentence for time spent in
          home incarceration under bail order 
00-232    State of NH              v.   Kaufhold,* Joanne
          Attorney General              Robert J. Moses
          Aggravated driving while intoxicated, speeding - denial
          of motion in limine with respect to radar stop of
          defendant's vehicle; whether police were obliged to
          give advice to defendant pursuant to RSA 265:87, I-a;
          whether court erred by considering field sobriety test
          results in determining that probable cause existed for
          arrest; whether field sobriety tests were involuntary;
          sufficiency of evidence of speeding; violation of right
          to speedy disposition
00-234    State of NH              v.   Higgins,* Jack Z.
          Attorney General              James E. Duggan
                                        James H. Moir
          Aggravated felonious sexual assault, criminal
          threatening, criminal restraint - prohibiting defendant
          from inquiring into victim's prior profession as
          prostitute where victim was so acting in her contact
          with defendant; whether confession was voluntary;
          limitation upon defendant's closing argument; denial of
          mistrial or rebuttal closing argument; whether court
          erred in applying sentence enhancement provisions of
          RSA 651:2, II-g to two counts of criminal threatening
00-239    State of NH              v.   Michels,* Robert J.
          Attorney General              John R. Michels
          Speeding - violations of due process and double
          jeopardy clauses; prohibiting defendant from
          questioning police officer about his knowledge of radar
          procedures; failing to allow defendant to testify to
          rebut other testimony

00-241    Pawtucket Mutual         v.   Buckman, Donald P., 
          Insurance Company             Elaine M. Buckman, 
          Melinda S. Gehris             Hartford Insurance 
                                        Stephen J. Schulthess
          Automobile insurance coverage - whether employer
          "owned, hired or borrowed" rental vehicle rented by
          employee for personal use during vacation with friend
          employed by customer of employer; whether vehicle was
          rented as part of employer's business
00-250    State of NH              v.   Duffy,* Brian
          Attorney General              Mark L. Stevens
          Driving while intoxicated - admission of police
          officer's opinion testimony about Horizontal Gaze
          Nystagmus test; failure to suppress defendant's
          statements made during booking where no waiver of
          Miranda rights shown
00-253    Morrill, Maureen         v.   Morrill,* Bruce
          Amy Davidson                  Roy Weddleton
          Domestic violence - whether court erred by refusing to
          allow children ages 15 and 16, who were eyewitnesses to
          alleged assault, to testify and by requiring them to
          leave the courtroom and not hear any testimony
00-264    State of NH              v.   Weldon,* Mark
          Attorney General              Robert J. Moses
          Driving while intoxicated - numerous issues including
          failure to prove driving upon a way; violation of due
          process where trial judge affirmatively assisted State;
          bias by trial judge against defendant; failure to
          exclude results of field sobriety tests; whether
          probable cause existed for arrest
00-266    Fillmore, Diane          v.   Fillmore,* Franklin B.
          Elaine Kennedy                Susan Brisson
          Domestic violence - sufficiency of evidence for finding
          of abuse; whether allegations supported issuance of ex
          parte temporary orders

00-269    Manchester Association of Police Supervisors,* Appeal
          (public employee labor relations board)
          Vincent A. Wenners, Jr.
          Thomas Clark
          Attorney General
          Bargaining unit - whether board erred by concluding
          that although position of business service officer is
          not a confidential position, if incumbant holds union
          office then it becomes a confidential position and is
          no longer in the bargaining unit
00-282    State of NH              v.   Savickas,* John
          Attorney General              James E. Duggan
                                        Dorothy E. Graham
                                        Richard E. Samdperil
          Felonious sexual assault - failure to dismiss defective
          indictment; impermissible amendment of defective
          indictment; whether victim was competent to testify;
          admission of prior statements by victim to police;
          denial of mistrial after State admitted evidence of
          prior bad acts
00-284    State of NH              v.   Warren,* Theodore
          Attorney General              James E. Duggan
                                        Andrew R. Schulman
                                        Barbara Keshen
          Manslaughter - whether court erred by limiting defense
          allowing use of deadly force in one's own dwelling to
          situations in which an intruder enters the dwelling
          without permission; whether defendant's statements fell
          within excited utterance or present sense impression
          exceptions to hearsay rule
00-303    In re Tonya L. F.*
          James E. Duggan
          David N. Foley
          Attorney General
          Unauthorized use of motor vehicle - juvenile; whether
          court exceeded its authority by placing juvenile on
          conditional release until age 18 while also committing
          her to YDC for the term of her minority; whether court
          had authority to retain jurisdiction against the
          juvenile's wishes beyond her release from YDC

00-306    DeVere, Peter            v.   Commissioner, NH
          pro se                        Department of Safety*
                                        Attorney General
          Right-to-Know Law - whether department is required to
          ascertain unknown and unrecorded information from its
          records through a cross-referencing procedure for
          disclosure to a private party; whether superior court
          had subject matter jurisdiction; denial of stay pending
00-314    State of NH              v.   Tatro,* Lon
          Attorney General              James E. Duggan
                                        Rodkey Craighead, Jr.
                                        Debbie Martin
          Felonious sexual assault - whether court erred in
          denying curative instruction regarding prosecutor's
          reference in closing argument to defendant's silence;
          failure to order GAL to disclose counseling records for
          in camera review
00-322    Brown,* John P. Jr., Appeal of
          (board of mental health practice)
          pro se
          Attorney General
          Psychologist license - suspension; denial of right of
          confrontation due to failure to produce accusers at
          hearing; failure to rule on requests for findings and
00-330    State of NH         v.   Raymond,* Jared
          Attorney General         Brian T. Tucker
          Criminal threatening - whether court erred by
          instructing jury that it should trust that the court
          would be fair to the defendant in the event of a guilty

00-335    University System of New Hampshire Board of
          Trustees,* Appeal of
          (public employee labor relations board)
          Ronald Rodgers
          Nicholas DiGiovanni, Jr.
          Maura D. McLaughlin
          James F. Allmendinger
          Attorney General
          Public employees - certification of representation; res
          judicata; sufficiency of evidence; whether adjunct
          faculty members are public employees or temporary
00-346    Enos,* Shauna       v.   Bangs, Robert
          George Malonis           Robert G. Whaland
          Meredith L. Richardson
          Automobile accident - release; where release was
          subject to conditions not fully complied with by
          defendant, whether release bars plaintiff from bringing
          her original tort action against defendant
00-367    Contoocook Valley School v.   Graphic Arts Mutual
          District, School              Insurance Co.*
          Administrative Unit No. 1
          Gordon A. Rehnborg            Andrew D. Dunn
          Doreen F. Connor              James R. Fox
          Commercial liability insurance - whether exclusion for
          any claim for salary or other remuneration in the
          school district and educators legal liability coverage
          form is ambiguous as applied to statutory claims that
          seek damages in the form of lost wages and benefits
00-368    Mello,* Allen C.         v.   New Hampshire Department
          Scott H. Harris               of Revenue Administration
                                        Attorney General
          Business profits tax - deduction for reasonable
          compensation; whether taxpayer must file formal
          petition with department of revenue administration
          before waiving department's formal adjudicative
          process; whether plaintiff forfeited his right to
          appeal; whether plaintiff met requirements of RSA 21-
          J:28-b, I; whether September 13 pleading was timely
          amendment to September 3 waiver

00-370    Town of Bedford,* Appeal of
          (public employee labor relations board)
          Barton L. Mayer
          John Krupski
          Attorney General
          Public employee labor relations - bargaining unit;
          whether bargaining unit of firefighters should include
          lieutenants or building/health code inspector; whether
          building/health code inspector position was filled by a
          professional employee; exclusion of evidence as to
          effect of placing lieutenants in bargaining unit;
          failure to act upon requests for findings of fact and
          rulings of law
00-378    Royal and Sunalliance/Aavid Thermal Technologies,*
          Appeal of
          (compensation appeals board)
          Eric P. Bernard
          Shawn E. Nichols
          Attorney General
          Workers' compensation - whether board erred by untimely
          accepting second motion for rehearing; res judicata;
          whether employee was a newly losing party by virtue of
          board's ruling on first motion for rehearing; due
          process; equal protection
00-399    Lanoue,* Shirley    v.   Apfel, Kenneth S., 
          John D. McIntosh         Commissioner, Social
                                   Security Administration
                                   United States Attorney
          Supplemental security income benefits - whether special
          needs trust created pursuant to 42 U.S.C.  1396p may
          be revoked by the beneficiary or her guardian;
          certification from United States District Court for the
          District of New Hampshire