Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - January 2001

* denotes appealing parties

99-122        Manter, Donald             v.            Minuti, * Thomas
              pro se                                   pro se

              Contract dispute - sufficiency of evidence that
              defendant requested additional services from plaintiff
              entitling plaintiff to additional compensation
              
99-294        Franklin,* Peter           v.            Williams, Mary,
              Adele M. Fulton                          Director NH/VT Solid
                                                       Waste Project
                                                       Bryan K. Gould
                                                
              Conflict of interest - whether attorney who represents
              municipality may oppose, in litigation, a member of the
              municipality's governing board; whether conflict of
              interest exists for NH district's counsel whose former
              partner drafted original agreement forming NH district,
              where there is no dispute regarding terms of the
              agreement

99-738        State of NH                v.            O'Donnell,* Timothy
              Attorney General                         David Rothstein                   
                                                       Harry N. Starbranch, Jr.

              Driving after certification as habitual offender,
              conduct after an accident - failure to give requested
              jury instruction on identification; whether court erred
              by sua sponte reopening case and taking judicial notice
              of way; denial of mistrial after State argued defense
              counsel had deceived jury and improperly argued facts
              not in evidence
              
00-026        Sanderson, * Julee         v.            Town of Candia,
              trustee of Candia                        Town of Candia             
              Rangeway Realty                          Zoning Board of 
              Trust                                    Adjustment
              Thomas Quarles, Jr.                      Barton L. Mayer            
              Matthew R. Johnson
              
              Municipal regulation - cluster subdivision application;
              numerous issues including denial of opportunity to do
              discovery; failure of court to hold hearing or take
              additional evidence; whether court erred in denying
              equal protection claim; sufficiency of evidence;
              whether zoning ordinance is unconstitutional as applied
              
00-147        DeMauro, Annette B.        v.            DeMauro,*Joseph M.
              S. James Boumil                          Lawrence M. Edelman
              Stephen L. Tober                         Bernard Dwork

              Divorce - whether court punished defendant for
              exercising his right to remain silent; whether court
              illegally readjusted parties' rights and obligations
              under Internal Revenue Code; whether court erred by
              illegally attaching defendant's social security
              retirement benefits; whether court erred by adjusting
              rights and obligations of business entities not party
              to the divorce action

00-192        DeMauro, Annette B.        v.            DeMauro, Joseph M.
              Stephen L. Tober                         Edwinna C. Vanderzanden
                                                       Donald A. Kennedy, for
                                                       intervenor Louis D'Auria*

              Judgment creditor - priority of claims; whether
              intervenor's attachment has priority; whether plaintiff
              held a valid attachment on realty despite procedural
              irregularities; whether superior court in divorce
              decree exceeded its authority by ruling that
              intervenor's claim did not have priority over
              plaintiff's claim

00-200        State of NH                v.            Christie, Arthur*
              Attorney General                         David Rothstein
                                                       Harry N. Starbranch

              Driving after certification as habitual offender,
              operating OHRV while intoxicated - failure to give jury
              instructions on a public way and competing harms

00-270        In re Declaration of Trust made by Frederic C. Dumaine,
              et al on July 31, 1920
              John C. Ransmeier, for the trustees of the Dumaines
              Trust *
              Michael Lenehan
              Charles A. DeGrandpre
              Richard R. Fernald
              Mary Susan Leahy, GAL
              Nicholas R. Aeschliman, special GAL
              Attorney General
              Mary T. Feeney
              Bradford E. Cook
              Reverand John Gilmore, pro se

              Trusts - whether language of net income provision
              should be construed to limit distributions of income to
              legitimate descendents of Frederic C. Dumaine in the
              first and second generation; interlocutory transfer
              
00-318        In re Kaitlynn W.
              Attorney General, for DCYF*
              Patricia A. Frim

              Termination of parental rights - whether family
              division court erred in dismissing petition for
              termination of parental rights because many witnesses
              reside out of State, where that court has exclusive
              subject matter jurisdiction and petitioner asserts that
              witnesses will be available to testify
              
  00-325      In re Pack Monadnock
              Thomas F. Irwin, for Conservation Law Foundation*
              Attorney General
              
              Charitable and public trust - communications tower;
              whether placement of communications tower facility
              violates deed restriction; whether probate court
              exceeded its subject matter jurisdiction by finding
              that State has legal interest in subject property;
              whether court erred by looking beyond four corners of
              deed; whether deed created charitable trust that
              remains in force; equitable estoppel

00-328        State of NH                v.            Marti,* Antonio
              Attorney General                         David Rothstein
                                                       Sven D. Wiberg
         
              Aggravated felonious sexual assault - where defendant
              is convicted of single offense, conviction is
              overturned and remanded, the original indictment is
              separated into several offenses but the subsequent
              convictions are overturned based on a finding of
              prosecutorial vindictiveness, does double jeopardy
              preclude retrial on a reinstatement of the original
              single indictment; interlocutory appeal
         
00-339        Estate of Aaron White*        v.     Sloan, Patricia, Jeffrey
              Francis X. Quinn, Jr.                Sibley, Allen Sibley,
                                                   Stewart (Stuart) and
                                                   Myrna Bloom, John Doe
                                                   1 and 2
                                                   Nicholas Aeschliman               
                                                   William Orcutt

              Wrongful death, conspiracy - personal jurisdiction;
              whether court erred in dismissing case for lack of
              personal jurisdiction; failure to extend time within
              which to file materials in support of a finding of
              personal jurisdiction
         
00-386        In re Antonio W. and Daniel M
              Barry I. Harkaway, for mother*                                             
              Attorney General
         
              Termination of parental rights - whether statutory
              evidentiary procedures violate due process; lack of
              proper notice; denial of motion to strike social study;
              admission of evidence of sexual abuse; hearsay
              
00-395        In the Matter of Lisalynn M. Valence and David P.
              Valence*     
              Honey Hastings
              John A. Macoul
              Philip Desfosses, GAL
               
              Divorce - award of child support through age 18 of
              youngest child based on child support guidelines for
              three children; failure to allocate margin account as
              part of property division; whether court erred by
              requiring exercise of stock options and sale of stock
              regardless of tax consequences; excessive award of
              stock proceeds to wife; failure to adequately explain
              property division
         
00-411        Brzica,* Matt, Paul M.        v.       The Trustees of Dartmouth
              Canada, Robert E. Fuller               College,The Association
              James G. Godsman,                      of Alumni of Dartmouth
              William L. Hutchinson,                 College
              Jack Maloney, William                  Sean M. Gorman
              K. Tell, Jr.                           Steven L. Winer
              W. Wright Danenbarger
              David W. Johnston

              Misrepresentation, breach of contract and fiduciary
              duty, Consumer Protection Act - erroneous application
              of motion to dismiss standard; res judicata; whether
              college trustees owe fiduciary duty to alumni while
              soliciting donations to disclose controversial proposed
              use for funds; whether Consumer Protection Act applies;
              whether Bricker Doctrine applies; whether oath
              restricting trustees from disclosing discussions of the
              board is breach of 1891 agreement; whether court erred
              by allowing alumni association to intervene; due
              process

00-414        American Express Travel   v.       Moskoff,* David
              Barry I. Harkaway                  pro se
              
              Periodic payments - order requiring imprisonment until
              payment made; numerous issues including whether
              defendant was wrongfully imprisoned; failure to permit
              defendant time to retain new attorney; due process;
              whether court erred in finding defendant had ability to
              pay $5,000 per month; civil rights violations
             
00-422        Pro Con Construction, Inc.  v.     Acadia Insurance 
              d/b/a Pro Con Construction         Company*
              Company                            Andrew D. Dunn 
              Thomas W. Kelliher                 James R. Fox
              Caroline K. Delaney        
         
              Commercial general liability insurance - whether
              plaintiff qualifies as an "additional insured" under
              endorsement to insurance policy

00-423        State of NH                v.      Kevlik,* Jan                      
              Attorney General                   Mark Sisti

              Possession of a controlled drug, indecent exposure and
              lewdness - denial of motion to suppress where defendant
              was stopped by police based entirely on anonymous phone
              calls
              
00-444        State of NH                  v.     Mitchell,* Scott
              Attorney General                    David Rothstein
                                                  Howard A. Clayman
                                                
              Aggravated felonious sexual assault - exclusion of
              prior sexual abuse of minor victim and evidence that
              minor victim had been exposed to pornographic videos;
              sufficiency of evidence

00-468        State of NH            v.     Gordon,* Albert
              Attorney General              Jean-Claude Sakellarios
                                            Mary B. Barker
              
              Aggravated driving while intoxicated - collateral
              estoppel; whether expert testimony of blood alcohol
              concentration was reliable; denial of directed verdict
              on negligent homicide indictment; whether court erred
              by granting State's request at close of jury
              instruction to instruct jury on unindicted felony of
              aggravated driving of OHRV while intoxicated;
              sufficiency of evidence           
              
00-478        Kelly, John                  v.        LeBlanc,* Roger, 
              Diane George, power                    Fred Martin,
              of attorney                            Philip Currier
                                                     Brian C. Shaughnessy

              Landlord-tenant - eviction; whether court erred by
              requiring subtenant to show owner's consent to
              subleasing rather than requiring owner to prove
              affirmative restriction on subletting; whether court
              has subject matter jurisdiction where owner failed to
              comply with procedural requirements of RSA chapter 540

00-490        Higgins,* Cathanne C.,     v.     Manchester Sand & 
              individually and as               Gravel
              executrix of Estate of            Jeffrey B. Osburn
              David G. Higgins
              Russell F. Hilliard

              Wrongful death - borrowed servant doctrine; admission
              of evidence that liability insurance of third party
              covered decedent's wrongful death; whether jury
              instructions directed jury to find in favor of
              defendant if it concluded that driver of dump truck
              that rear-ended decedent's vehicle was an employee of
              third party
              
00-511        Spencer,* Megan, Petition of                                 
              J. Campbell Harvey
              Steven Frasca

              Prohibition - child custody; whether probate court has
              jurisdiction to order custody of child to continue with
              parties who filed guardianship petition in light of
              valid foreign order awarding petitioner sole custody;
              whether court violated petitioner's right to make
              decisions concerning care, custody and control of her
              child

00-516        In the Matter of Kurt A. Polasko* and Sijie Hu
              Ghazi D. Al-Marayati              
              Ellen  S. Friedman
              
              Divorce - exclusion of evidence related to alleged
              abuse relied upon by respondent as basis for request
              for custody of child; whether court erred in finding
              petitioner's request for custody at final hearing to be
              frivolous; failure to account for diminished value of
              tax-deferred assets relative to other assets

00-563        American Express Travel    v.      Moskoff,*  David           
              Barry I. Harkaway                  pro se

              Contempt - return of bail; numerous issues including
              failure to hold hearing; whether court erred in issuing
              order clarifying that $5,000 posted by defendant was
              intended to be turned over to plaintiff as payment on
              judgment rather than being bail; whether court
              committed fraud or other crimes; whether imprisonment
              of defendant was unlawful
              
00-579        State of NH                v.            Therrien,* Robert
              Attorney General                         David Rothstein
                                                       Behzad Mirhashem

              Aggravated felonious sexual assault - whether court
              erred by denying motion for new trial without a hearing

00-581        State of NH                v.            Freeman,* Matthew
              Attorney General                         David Rothstein
                                                       Sven D. Wiberg

              Prohibited sale of alcohol to minor - sufficiency of
              evidence; whether defendant had affirmative duty to
              prevent minors from consuming alcohol; whether sentence
              was disproportionate and based on conduct of which
              defendant had been acquitted; prosecutorial misconduct;
              failure of State to provide exculpatory evidence;
              denial of full cross-examination regarding victim's
              hospital and counseling records

00-586        State of NH                v.            Estes,* Marc W.
              Attorney General                         David Rothstein
                                                       Stephen E. Gaige

              Aggravated felonious sexual assault - consolidation of
              two unrelated sexual assault charges; prior bad acts;
              sufficiency of evidence
              
00-590        State of NH                v.            Coburn,* Stephen A.
              Attorney General                         David Rothstein
                                                       Neil J. Reardon

              Driving while intoxicated, subsequent offense - whether
              court erred by interrupting counsel during closing
              argument and instructing jury on how to deliberate;
              failure to give charge to jury correcting prior
              mistake; whether court improperly implied to jury that
              field sobriety tests are "scientific tests"

00-594        State of NH                v.            Hodge,* Dyanne
              Attorney General                         David Rothstein
                                                       Wendy E. Roberts
              
              Reckless conduct - whether double jeopardy bars retrial
              when first trial was terminated by recusal of the judge
              at the State's request

00-599        State of NH                v.            Lambert,* Kevin
              Attorney General                         David Rothstein
                                                       Sven D. Wiberg

              Felonious sexual assault - whether consideration at
              sentencing of evidence of marijuana, adult videos, and
              drug paraphernalia taken from house defendant shared
              with others violated due process and right to
              confrontation; improper statements by prosecutor in
              opening statement and closing argument; admission of
              victim's out-of-court statements (hearsay)
              
00-604        State of NH               v.            Sanborn,* Scott
              Attorney General                        James H. Moir

              Driving while intoxicated - whether court erred by not
              excluding results of horizontal gaze nystagmus test;
              sufficiency of evidence
              
00-634        State of NH                v.            LeBaron,* Joseph
              Attorney General                         David Rothstein
                                                       Kent E. Smith
                                                
              Driving after certification as habitual offender -
              sentencing; whether court erred by imposing felony
              sentence when indictment did not include any underlying
              misdemeanor motor vehicle or DWI offense 

00-636        State of NH                v.            Shaneyfelt,* Harold
              Attorney General                         David Rothstein
                                                       Patrick W. Fleming

              Felonious sexual assault - whether court erred by
              allowing State to amend indictment; sufficiency of
              evidence; whether court erred by instructing jury that
              law does not require corroboration of victims'
              testimony
              
00-647        Breed Properties II         v.            Town of Newport
              Limited Partnership                       Adele Fulton
              Howard B. Myers                   

              Property tax abatement - whether underground petroleum
              storage tanks, piping, gasoline dispensing pumps,
              gasoline station canopies, and convenience store
              coolers are personal property or taxable as fixtures

00-648        Brzica,* Matt, Paul M.       v.  The Trustees of Dartmouth
              Canada, Robert E. Fuller,        College, The Association
              James G. Godsman, William        of Alumni of Dartmouth
              L. Hutchinson, Jack              College
              Maloney, William K. Tell, Jr.    Sean M. Gorman
              W. Wright Danenbarger            Steven L. Winer
         
              Motion to reopen - whether newly discovered evidence
              warranted reopening of hearing on motion to dismiss

00-657        State of NH                v.            Newman, Steven*
              Attorney General                         David Rothstein
                                                       Nancy A. DeAngelis

              Aggravated felonious sexual assault -failure to dismiss
              the charge; erroneous jury instructions; erroneous
              qualification of expert witness; admission of evidence
              of trauma; exclusion of impeachment evidence

00-660        State of NH                v.            Bishop, Clifton*
              Attorney General                         David Rothstein
                                                       Joseph C. Malfitani

              Aggravated felonious sexual assault -sufficiency of the
              evidence; admission of hearsay statements
              
00-674        State of NH                v.            English,* Darryl
              Attorney General                         David Rothstein
                                                       Lucy A. Martin
                                         
              Burglary, felony theft - whether mistrial should have
              been granted; exclusion of evidence of prior
              convictions to impeach State witness; sufficiency of
              evidence

00-680        State of NH                v.            Dowdle,* Eileen
              Attorney General                         David Rothstein
                                                       Ron Abramson
                                                       Kent Smith
              
              Arson, insurance fraud, reckless conduct - inclusion of
              inculpatory statements; inclusion of hearsay testimony
              at suppression hearing; inclusion of opinion testimony
              concerning credibility of another State witness;
              numerous other issues

00-682        Smith,* Ernest III & a.       v.        NH Dept. of Revenue
              Michael C. Harvell                      Administration,
              Russell F. Hilliard                     Commissioner of
              William F. Ardinger, Jr.                Revenue  
              Wilbur A. Gahn, III                     Administration
              W. Wright Danenbarger                   Attorney General
              David E. Barrdale
              
              Class action -- whether superior court failed to follow
              supreme court remand order in Smith v. N.H.
                     
00-684        State of NH                v.            Porelle,* Raymond
              Attorney General                         David Rothstein
                                                       Mark L. Sisti
              
              Stalking - denial of motion to strike rebuttal
              testimony; denial of motion for new trial

00-688        McGowen,* Wayne, Appeal of 
              (compensation appeals board)
              Mark S. Gearreald
              John FitzGerald
              Attorney General

              Workers' compensation - whether injury suffered was
              compensable; whether denial of compensation was based
              on competent medical evidence; whether independent
              medical examination which was contradicted constituted
              competent medical evidence

00-691        Truman,* Frederick, Appeal of
              (compensation appeals board)
              John P. Kalled
              Attorney General

              Worker's compensation - whether denial of claim brought
              after change in relevant statute was unreasonable;
              whether claimant met his burden of proof by presenting
              an unchallenged physician's opinion; whether claimant
              entitled to difference between earlier impairment award
              and impairment at point of maximum medical improvement
              
00-692        State of NH                v.            Whitney,* Patricia
              Attorney General                         David Rothstein            
                                                       Chris McLaughlin
              
              Receiving stolen property - whether trial court erred
              in denying defendant's motion to suppress                    
              
00-696        State of NH                v.            Coutu,* David D.
              Attorney General                         a/k/a David Hebert
                                                       David Rothstein
                                                       Laura Brevitz

              Assault - whether mistrial should have been granted
              based on prosecutorial misconduct; failure to produce
              verified record of defendant's criminal history
       
00-702        Londonderry School District,* Appeal of
              (public employee labor relations board)
              Michael S. Elwell
              Attorney General

              Labor relations - whether board's finding of
              arbitrability under collective bargaining agreement
              (CBA) was unreasonable; whether specific language
              controlled general language in CBA; reliance on parol
              and extrinsic evidence; consideration of facts not in
              evidence

00-705        PMC Corp.                     v.     Houston Wire & Cable Co.*
              Richard B. Couser                    Michael C. Harvell
              Lisa Snow Wade                       Michael J. Lambert

              Breach of contract - failure to properly instruct jury that
              exclusivity is necessary between parties to a
              requirements contract; whether statute of frauds
              quantity element properly applied; whether weight of
              evidence contrary to jury's finding on issue of
              contract formation; whether instruction on fraudulent
              intent was surplusage; exclusion of evidence that
              plaintiff's sole remaining asset was this lawsuit
         

00-708        Beauregard Equipment,         v.     Marsh,* Galen, 
              Inc.                                 d/b/a E.M.S. Construction
              Jay M. Niederman                     David H. Bownes
              
              Breach of contract - whether accessing defendant's credit
              card account without authorization constitutes unfair trade
              practice; whether invitation to apply for credit card provides
              authorization to make charges against account; whether refusal to
              acknowledge that charges were made without authorization for
              almost one year constituted bad faith; attorney's fees 

00-710        State of NH                   v.            Bunnell, Travis*
              Attorney General                            Robert I. Morgan

              Arson - whether restitution should be measured
              according to fair market value of property destroyed;
              whether burden of proof regarding amount of restitution
              improperly shifted to defendant; admission of evidence
              of rejected letter offer for property; whether claimant
              estopped from arguing for higher value, where claimant
              had original appraised value reduced 

00-718        State of NH                   v.            Le Pine,* Mark
              Attorney General                            pro se
              
              Reckless driving - sufficiency of evidence; exclusion
              of evidence 
         
00-721        State of NH                 v.            Smalley,* Steven
              Attorney General                          David Rothstein
                                                        Joseph C. Malfitani

              Resisting arrest - sufficiency of evidence; whether
              trial court erred in denying motion to strike
              surplusage from the information

00-728        Smith, Karin                      v.     Derry Medical Center*
              Marc R. Scheer                           R. David DePuy
              Todd Hathaway                            Scott Harris
                                                       Paul Chant

              Medical malpractice - numerous issues including whether
              plaintiff's failure to attend to her own medical care
              was comparative fault; sufficiency of evidence; whether
              neuropsychologist was competent to testify that brain
              injury was related to stroke; excessive damage award
              
00-731        Otto,* Lawrence      v.            Citizens Bank New 
              Nicholas R. Aeschliman             Hampshire
                                                 Michael Owen

              Foreclosure - whether court erred by directing verdict
              for defendant on Consumer Protection Act claims; where
              jury found that defendant acted in bad faith, whether
              court erred by denying attorney's fees to plaintiff;
              cross-appeal - failure to give jury instruction
              regarding sufficiency of notice of postponement of
              foreclosure sale; allowing attorney to testify as
              expert to incorrect legal standard of "good faith"
              
00-733        State of NH                v.            Burdette,* John
              Attorney General                         David Rothstein
                                                       Diana G. Bolander

              Driving after certification as habitual offender -
              sentencing; whether court has authority to impose fine as part of
              sentence; whether State can inform court of law enforcement
              agency's position on sentencing recommendation when no agency
              representative is present to be cross-examined

00-735        State of NH                v.            Hall,* James
              Attorney General                         David Rothstein
                                                       Barbara Keshen
                                                       Edward L. Cross
                                         
              Second degree murder - numerous issues including failure to
              exclude evidence that victim's body was naked and
              bound; failure to dismiss jurors for cause; exclusion
              of character evidence; denial of request for negligent
              homicide instruction; denial of request to reopen case;
              whether court erred by instructing jury that
              presumption that person is aware of his conduct can
              only be rebutted by one claiming insanity

00-736        In re Ethan T. and Alyssa T.
              David Rothstein, for the mother*
              Gina B. Apicelli
              Attorney General

              Child neglect - whether court erred by holding
              permanency hearing nine months after finding of
              neglect; sufficiency of evidence that current caregiver
              is fit to be permanent guardian; failure to vacate
              permanency order in light of information about current
              caregiver that had been withheld by division for
              children, youth and families

00-737        Yount, Gail F., Dennis            v.     Wal-Mart Stores, Inc.*
              B. Yount                                
              Steven R. Goldman                        Alexander J. Walker
             
              Negligence - instructing jury on hedonic damages absent
              evidence of permanent impairment
         
00-739        Robison-Villa, Alice              v.     Reisner,* Bruce   
              Robert L. Morgan                         d/b/a Capital Note 
                                                       Brokers
                                                       James G. Feleen
                                                       Jessica J. Bladen

              Personal jurisdiction - whether New York resident who
              takes assignment of New Hampshire mortgagee's interest in mortgage
              owed by New York resident on New York property is subject to
              jurisdiction of New Hampshire courts

00-744        Perkins,* Stacey, by her mother and next friend, Terri Perkins,
              Petition of
              (human rights commission)
              Linda S. Johnson
              Rachel A. Hampe
              Joseph Hamilton
              Attorney General

              Sex discrimination - whether appellant first resorted to the
              procedure provided in RSA 354-A by speaking to
              executive director of human rights commission; whether
              commission erred by dismissing discrimination charge
              because appellant complied with director's advice and
              first filed private court action
       
       
CASES CONSOLIDATED:
              
              00-026 is consolidated with 99-524
              00-411 is consolidated with 00-648
              00-563 is consolidated with 00-414
              00-647 is consolidated with 00-646