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