New Hampshire Supreme Court
Cases Accepted - March 2000
* denotes appealing parties
99-570 State of NH v. Munson,* Kenneth
Attorney General James E. Duggan
Ray Raimo
Theodore Barnes
First degree murder - whether indictment required State
to prove that defendant purposely caused victim's death
by strangling; whether jury instructions adequately
specified that jury must unanimously determine which
act defendant committed; failure of court to
reconsider, during trial, competency of a witness;
prohibiting defendant from cross-examining a witness
ruled incompetent to stand trial regarding that
incompetency ruling
99-655 Corbin, John v. Dowd,* Jeremiah
Diana G. Bolander John P. Shyavitz
Neil J. Reardon
Default judgment - whether defendant is entitled to
hearing on damages; sufficiency of proof of damages
99-698 State of NH v. Harkins,* Robert D.
Attorney General Duncan J. MacCallum
Second degree assault - numerous issues including
failure of State to turn over exculpatory evidence;
limits on closing argument and cross-examination;
exclusion of prior altercations between defendant and
victim; admission of inflammatory photographs of victim
after assault; erroneous jury instructions
99-734 State of NH v. Durgin,* Jason
Attorney General James E. Duggan
Theodore Barnes
Second degree assault - whether defendant had standing
to contest search of apartment; whether probable cause
and exigent circumstances justified warrantless search;
whether statements were product of custodial
interrogation; whether photos were admissible and not
cumulative; sufficiency of evidence
99-770 Kennedy,* Richard E. v. Town of Sunapee, Town of
Robert I. Morgan Sunapee Water and Sewer
Commission
Martin Gross
Shane Stewart
Sewer connections - whether RSA 147:8, which allows
municipalities to extend mandatory sewer connection
distances, is unconstitutional; whether waiver
provision that applies only to septic systems approved
for construction after 1985 is unconstitutional;
whether ordinance may be enforced where enforcement
would not achieve any of the facial purposes of the
ordinance; exclusion of evidence related to validity of
ordinance's facial purpose of protecting Lake Sunapee;
equal protection violation; violation of plaintiff's
non-conforming rights
99-787 Cadle Properties of NH, v. Atara Diamond Corp.,*
Inc. Anthony Attalla
Marc W. McDonald John R. Michels
Promissory note - whether motion to reconsider was
untimely filed; statute of limitations; whether
guarantee is a negotiable instrument that must be
separately assigned; whether guarantee was properly
assigned to plaintiff
99-797 Kuplin, Christian B. v. Director, Division of
Edward M. Gordon Motor Vehicles*
Attorney General
Driver's license suspension - driver under 20 years of
age; whether court erred by ruling that administrative
rule Saf-C 204.031 is invalid; whether rule
impermissibly adds to or modifies RSA 263:14 by
mandating license suspension for conviction of listed
motor vehicle offenses
99-800 Klemm, Barbara, Robert v. Heald,* Joseph
Klemm Tony F. Soltani
Laura Gandia
Construction contract - misrepresentation, defective
work; jury instruction allowing jury to return a
verdict for four times the statutory amount where
statute provides for a sum of no more than three times;
sufficiency of evidence; whether verdict was
inconsistent with evidence and the result of mistake;
failure to exclude expert evidence where plaintiffs
withheld supplemental reports of expert and part of
expert's curriculum vitae
99-803 New Hampshire Hospital,* Appeal of
(compensation appeals board)
James E. Owers
Brian C. Shaughnessy
Attorney General
Workers' compensation - whether board erred by awarding
over four years of retroactive benefits and continuing
benefits when the department of labor had never had an
opportunity to consider the issue by an original
hearing
99-804 State of NH v. Milley,* Brandon
Attorney General James E. Duggan
Timothy M. Landry
Criminal threatening, reckless conduct, resisting
arrest - discovery; whether superior court erred by
ruling that defendant must turn over reports of
interviews conducted with witnesses that defendant does
not intend to call at trial; interlocutory appeal
99-813 Franklin Lodge of Elks* v. Marcoux, Sally, Terry
Matthew J. Lahey Bergeron-Hoyt, Renee
Labonte, Jo-Ann Labonte
Robert D. Hunt
Gender discrimination - appeal; whether written
transcript of agency proceeding must be filed with
superior court during the 30-day appeal period
99-825 Hiscoe,* Lois, Appeal of
(compensation appeals board)
Andrew D. Johnstone
Michael R. Mortimer
Attorney General
Workers' compensation - numerous issues including
whether board erred by addressing causation issues
where employer did not request hearing on causation
issue; whether board erred in finding no causation
between disability and work-related injury; whether
board erred in placing burden of proving causation on
claimant in proceeding brought by employer alleging
change in condition; sufficiency of evidence
99-826 Royal Oak Realty Trust, v. Modita Realty Trust,*
Ernest M. Cherry, Jr., Beverly P. Mutrie,
trustee, Ernest M. trustee, Lone Pine
Cherry, Jr., Carole M. Realty Trust, Ernest
Cherry M. Cherry, Jr., trustee,
Raymond P. Blanchard Charles B. Mutrie
Robert A. Shaines
Trusts - whether probate court erred by granting motion
to amend order to allow plaintiffs to recover trust's
ongoing expenses from defendants
00-001 In re Trust Estate of Jacob M. Shulins
Lanea A. Witkus, for Ann Birchenough*
Charles Ingersoll, for Bank of NH
John McIntosh, for Susan Shulins
Construction of trust - whether court misconstrued term
"net income" as used in will; whether "net income" is
ambiguous, requiring extrinsic evidence as to
testator's intent
00-011 Lockheed Martin Corp.,* Appeal of
(compensation appeals board)
Jeffrey H. Karlin
Brian C. Shaughnessy
Attorney General
Workers' compensation - whether claimant is entitled to
benefits for aggravation of pre-existing condition
caused by co-workers wearing fragrances; whether
claimant suffered accidental injury during course of
employment; whether claimant was subjected to stress at
work greater than that encountered in daily life;
whether claimant is entitled to recover for pre-
existing disability/occupational disease
00-012 Hawkins,* Cassandra v. NH Department of Health
Kay E. Drought and Human Services
Kenneth J. Barnes Attorney General
Right-to-Know Law - whether State may deny request for
information existing in computerized data base on basis
that agency is unable to retrieve data without
additional programming or expense; failure to apply
correct legal standard when deciding motion to dismiss
00-013 Town of Seabrook,* Appeal of
(public employee labor relations board)
Robert D. Ciandella
Robert M. Derosier
John S. Krupski
Attorney General
Unfair labor practice - whether union committed unfair
labor practice by failing to grieve member's dispute
with employer under collective bargaining agreement
(CBA) prior to prosecuting wage claim; whether union
has contractual right not to grieve dispute under CBA's
binding arbitration provisions; failure to hold
evidentiary hearing regarding past practice of the
parties
00-019 Harborside Healthcare Corp.,* Appeal of
(compensation appeals board)
Stephen J. Schulthess
Stephen Buckley
Attorney General
Workers' compensation - whether claimant proved medical
causation; whether disability due to latex allergy is
compensable; whether board erred in finding that single
use of latex gloves caused development of Type I latex
allergy; whether claimant entitled to disability
benefits despite fact that her pre-existing latex
allergy meant that she had no earning capacity in a
latex environment prior to the time she commenced her
employment with the petitioner
00-020 Handley,* Gerald v. Town of Hooksett
Edmund J. Boutin Barton L. Mayer
Town election - when validity of protest petition must
be determined; whether town council had jurisdiction to
decide adequacy of protest petition after results of
election were posted; whether town administrator, a
nonresident, could request review of protest petition;
whether town erred by combining six zoning amendments
into one ballot question; failure to give notice to
protest petitioners of meeting that declared protest
petition invalid
00-021 Concord School District,* Appeal of
(public employee labor relations board)
Edward M. Kaplan
Timothy A. Gudas
Steven R. Sacks
Attorney General
Public employee labor relations - arbitration award;
whether board erred in ordering immediate
implementation of arbitration award while threshold
issue of arbitrability is pending in an appeal before
supreme court
00-024 Nash Family Investment v. Town of Hudson
Properties*
Ballinger Properties and v. Town of Londonderry
Five-N Associates General John J. Ratigan
Partnership* David R. Connell
John G. Cronin
John F. Bisson
Excavation activity tax - constitutionality; whether
assessing mechanism results in disproportionate
taxation; whether tax was unconstitutionally
retroactively applied; whether excavation site is
improper classification of property; equal protection
violations; whether lack of meaningful right of appeal
violates due process
00-044 State of NH v. Goodwin,* Anita
Attorney General Jack Bryan Little
Violation of protective order - motion to withdraw
plea; whether plea was intelligently and voluntarily
made where defendant did not understand that she could
not have been found guilty of violating a protective
order contrary to RSA 173-B as alleged in the complaint
Note: 99-826 is consolidated with 99-380