Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - May 2001

98-640 State of NH
Attorney General
v. MacDonald,* Diane
pro se
Operating after suspension, transporting alcoholic beverage; whether police officer lawfully detained defendant absent belief that defendant had committed, was about to commit, or was committing a crime
00-046 Littleton Stamp & Coin Company, Inc.,* Appeal of
(compensation appeals board)
Jeffrey H. Karlin
Donna M. Head
Workers' compensation - whether Liberty Mutual is the responsible insurance carrier; whether board correctly applied test set forth in Appeal of Wausau; whether it is speculative to say that employee suffered loss of earning capacity when she cannot perform normal job but suffered no loss of income because employer provided modified work; lack of competent medical evidence that claimant suffered injury while Liberty Mutual was on the risk
00-292 State of NH
Attorney General
v. Marquis,* David
David M. Rothstein
Ricardo St. Hilaire
Reckless conduct, criminal threatening - allowing postal inspector to sit on jury; exclusion of evidence that victim had abused his spouse; whether minimum mandatory sentence of 3-6 years violated State Constitution
00-322 Brown,* John P. Jr., Appeal of
(board of mental health practice)
pro se
Attorney General
Psychologist license - suspension; whether board erred by having single board member conduct prehearing conferences
00-550 State of NH
Attorney General
v. Masucci,* Anthony
David M. Rothstein
Gordon Ferguson
Driving while intoxicated, subsequent offense - sufficiency of evidence that defendant was in actual physical control of vehicle that was stationary and inoperable
00-761 Restaurant Design Group, Inc.
Kris Durmer
v. Economides,* Ernest
R. James Steiner
Commercial lease - whether plaintiff retained right to exercise purchase option in lease when it failed to cure defaults during lease term; failure of trial court to give effect to lease default provision; whether certain rent that was paid should be credited towards purchase price; whether court erred in giving plaintiff option to renew lease if it is unsuccessful in concluding purchase
00-787 State of NH
Attorney General
v. Nguyen,* Hung
David M. Rothstein
Andrew F. Cotrupi
Conspiracy to commit first degree assault, criminal restraint - denial of new trial where victim testified inconsistently in trial of co-defendant; exclusion of medical records; admission of hearsay; whether jury charge broadened charging document; sufficiency of evidence
00-789 State of NH
Attorney General
v. Plch,* Vaclav
David M. Rothstein
Barbara R. Keshen

First degree murder - whether search warrant was supported by probable cause; whether police engaged in functional equivalent of interrogation after defendant invoked his right to counsel; whether defendant was adequately advised of his right to have counsel present during questioning; admission of evidence that defendant had been employed as chicken deboner; exclusion of evidence that victim used prescription medication; allowing jury access to video play back machine during deliberations
00-795 In the Matter of Joyce K. Nyhan and William K. Nyhan*
Helen McKittrick
Joseph McKittrick
L. Jonathan Ross
Doreen F. Connor
Divorce - whether court erred by valuing retirement accounts as of date of final hearing; sufficiency of evidence that respondent used marital assets after filing of divorce petition to increase value of retirement accounts; award of post-decree statutory interest pursuant to RSA chapter 336; whether court erred by accepting untimely motions for reconsideration
00-808 Binda, Jeffrey v. Royal Insurance Company*
Robert E. Mark and Cathleen E. Mark, Intervenors
Francis G. Murphy for Plaintiff
Mark S. Gearreald for intervenors
Andrew D. Dunn
James R. Fox
Homeowners' and umbrella liability insurance - whether definition of "occurrence" in policy permits objective test to determine if event is expected or intended; misapplication of subjective test; failure to hold evidentiary hearing; cross-appeal - whether court erred by inquiring into underlying facts; whether defendant had duty to defend the plaintiff
00-824 Herman, Charles
John A. Bell
v. Monadnock PR-24 Training Council,
Inc.*
Edward F. Patch
Negligence - whether person who received certification card from nonprofit organization was an agent of organization; whether organization owes legal duty to person injured in connection with training session conducted by certified trainer; whether public employee may act simultaneously as State employee and agent of nonprofit organization; whether organization can be vicariously liable when the agent is co-employee of injured party and suit against agent is barred by Workers' Compensation Act; whether claim of reliance upon apparent authority is barred because plaintiff was required to participate in training as a condition of employment; sufficiency of evidence
00-825 State of NH
Attorney General
v. Estes,* Marc W.
David M. Rothstein
Stephen E. Gaige
Felonious sexual assault - admission of statements made by defendant to State’s witness that were not provided to defense counsel in pretrial discovery; sufficiency of evidence
00-826 Harrold, Robert, Mary Lou
Harrold
Craig N. Salomon
v. Beaudry,* Lisa M., Dunvegan
Woods Unit Owners Association,
Inc., The Commons Property
Management, Inc.
Lawrence S. Forsley
Christopher E. Grant
Nuisance - attorney's fees; whether court erred in finding defendant Beaudry acted in bad faith; denial of opportunity to present evidence or for separate hearing; imposition of unwarranted sanction of attorney's fees
00-827 State Employees Association of New Hampshire, Inc.,* Appeal of
(public employee labor relations board)
Michael C. Reynolds
Renny Perry, Consultant
Attorney General
Public employment - unfair labor practice; whether factfinder's decision was unambiguous as to how service bonus was to be paid
00-829 State of NH
Attorney General
v. Schillinger,* Greg
David M. Rothstein
Philip Desfosses
Aggravated felonious sexual assault, felonious sexual assault – allowing prosecutor to argue facts and inferences not in evidence; prosecutorial overreaching in closing argument; denial of motion for new trial
00-832 Kravitz,* Judith, Jane Doe
Bruce W. Felmly
John Eisner
v. Beech Hill Hospital, LLC, Ernest E.
Reels
Christine Friedman
Negligence, malpractice, breach of fiduciary duty, negligent hiring and supervision, infliction of emotional distress, battery – admission of evidence of post-trial communications with jurors; whether damage award was conclusively against weight of evidence; whether court erred by setting aside verdict against defendant hospital; failure to strike testimony of witness who violated pretrial order; cross-appeal – amending writ to add new claim for damages after statute of limitations expired; allowing jury to consider awarding damages absent any evidence damages were caused by wrongful conduct of defendant; allowing writ to be amended after verdict adding new cause of action; whether verdict for parent can stand when child's case results in verdict for defendant
01-009 Brady, Edward J.
Michael S. Owen
v. Peter F. Fagley, Inc.,* Peter F.
Fagley, Douglas James, Denis
Rosenthal
Robert R. Lucic
Rescission, damages - personal jurisdiction; whether court has personal jurisdiction over nonresident defendants
01-018 Cadreact, Scott, Melissa
Cadreact
K. William Clauson
v. Citation Mobile Home Sales, Inc.*
Christopher Cole
Robert H. Miller
Breach of contract, breach of warranty - installation of mobile home; failure to enforce binding arbitration clauses; denial of mistrial following prejudicial remark by plaintiff's counsel; allowing lay plaintiffs to testify to value of damage done to mobile home; whether defendant breached contract; whether defendant violated Consumer Protection Act
01-027 Dupont,* Raymond E., Admin’r
of Estate of Raymond E.
Dupont, Jr.
Steven M. Latici
v. Aavid Thermal Technologies, Inc. &
Aavid Thermal Products,Inc.
Robert C. Dewhirst
Wrongful death – whether plaintiff’s suit, which alleged that defendant had duty to provide safe workplace and to implement policy to prevent workplace violence, stated a cause of action; denial of motion to amend following grant of motion to dismiss
01-029 McBurney,* H. Edward, Jr.
Jay M. Niederman
v. Shaw, Walter Henry, Jr.
Robert Zimmerman
Real estate levy – whether recording of execution created a lien that remained outstanding and enforceable; where judgment creditor’s real estate levy is stopped by defendant’s filing bankruptcy, and creditor asserts status in bankruptcy action, can creditor resume levy process once bankruptcy is closed
01-031 State of NH
Attorney General
v. Koschara,* W. Fred
David M. Rothstein
Howard A. Clayman
Habitual offender – failure to dismiss indictment, where 12 month stand committed sentence violated Part I, Article 18’s mandate that "the true design of all punishment is to reform, not to exterminate mankind"
01-032 Palmer,* Georgia
Peter G. Webb
v. Nan King Restaurant, Inc.
Kevin E. Sharkey
Negligence, breach of warranty, product liability - whether personal injury is precondition for recovery for emotional damages resulting from discovery of filth in a mouthful of food; whether elevated anxiety constitutes physical injury
01-044 Pare,* William J.
Darlene M. Daniele
v. Primerica Financial Services, Inc.
Peter Bennett
Accounting, post-termination commissions - arbitration; whether Federal Arbitration Act (FAA) applies to parties' contract; whether Nevada law applies to parties' contract; whether arbitration clause is invalid or unenforceable
01-047 In the Matter of Irvin D. Gordon* and Priscilla M. Gordon
James E. Higgins
L. Jonathan Ross
Divorce - erroneous valuation of petitioner's "ceased member" interest in his law firm; including pre-marriage IRA and post-libel 401(k) contributions when dividing IRA and 401(k) between the parties; whether interest in family trust was excludable from marital estate; award of account created for children's education entirely to respondent; whether court erred in assuming that respondent must be maintained at standard of living enjoyed during marriage without regard to petitioner's income and standard of living
01-048 Chinburg Builders, Inc.*
Philip Pettis
Robert M. Derosier
v. Acadia Insurance Companies
Melinda Gehris
Liability and commercial umbrella insurance - residential home general contractor; whether word "occupied" was ambiguous; whether general contractor hired to build house "occupied" the house site so as to exclude insurance coverage
01-055 Boulders Condominum
Association
Richard Mullaly
v. Ertl,* Hermann
K. William Clauson
Condominium assessments - collection action; failure to provide notice that hearing would address merits; res judicata
01-056 Estate of George Libby*
Michael P. Rainboth
v. State Farm Mutual Auto Insurance
Company
Gordon Rehnborg, Jr.
Uninsured motorist coverage - whether government vehicle exclusion violates public policy or Financial Responsibility Act
01-060 Salem Vickerry Realty, L.L.C.*
Dean B. Eggert
Jennifer L. Murphy

v. Town of Salem, Town of Salem
Zoning Board of Adjustment
Diane M. Gorrow
Municipal regulation - special exceptions; whether denial of special exception for parking was lawful and reasonable; unlawful imposition of hardship requirement by ZBA to obtain special exception
01-064 State of NH
Attorney General
v. Khirawi,* Aalaeldin M.
David M. Rothstein
Raymond W. Ejarque
Criminal trespassing - whether complaint was duplicitous
01-071 Conley,* Christopher E., Trooper, Appeal of
(personnel appeals board)
James W. Donchess
Attorney General
State employment - failure to promote; numerous issues including whether rules governing promotions of classified employees comply with statute; whether board's decision was unjust or unreasonable; failure to properly evaluate evidence of retaliation
01-076 State of NH
Attorney General
v. Blackstock,* Gregory
Paul J. Garrity
Aggravated felonious sexual assault – denial of jury instruction on accident; whether court erred in ruling that defendant’s proposed testimony would open the door to acts of prior sexual abuse; sufficiency of evidence; failure to orally instruct jury as to burden of proof
01-082 Malnati, Vincent, Carol
Malnati
George R. Hanna
Mary Louise Caffrey
v. State of NH,*Commissioner, NH
Department of Transportation
Attorney General
Quiet title action – whether State’s use of property as a recreational trail constituted material increase in burden on servient estate where railroad easement existed; whether RSA 228:60-a, V violated plaintiffs’ due process rights or equal protection rights; failure to clarify ruling; award of attorney’s fees; cross-appeal – whether State can lose its interest in public land by abandonment; whether State abandoned railroad easement
01-084 Dow,* E. Milton
Randall F. Cooper
v. Town of Effingham
Barton L. Mayer Malcolm R. McNeill, Jr.,
for the intervenor
Municipal regulation – racetrack permit; numerous issues including whether adoption of and application of racetrack ordinance violated due process; violation of procedural due process during proceedings; whether ordinance is vague or contrary to State statute; attorney's fees
01-087 Kelly, Jane A., Patrick Kelly
Matthew Cox
v. Prudential Property & Casualty
Insurance Company*
Robert G. Whaland
Uninsured motorist coverage – stacking; whether insurer may place its uninsured motorist offset language within general provisions section of the policy rather than within the uninsured motorist section
01-088 Pierson,* George, Maxine
Pierson
Mark D. Wiseman
v. Hubbard, Andrea, Town of
Effingham
John P. Sherman
R. Matthew Cairns
Defamation, infliction of emotional distress – whether town clerk entitled to absolute immunity for statements made to board of selectmen; whether clerk was acting in her official capacity; whether genuine factual dispute exists
01-093 State of NH
Attorney General
v. Hardy,* Mark
Joyce E. Smithey
Destruction of beaver dam – whether defendant violated RSA 210:9, I, when he acted in his capacity as a town official to protect public road and had permission from landowner; whether defendant had necessary intent to find violation of statute; whether defendant was a town official
01-098 In the Matter of Patricia A. Gurtner and Richard P. Gurtner* Gurtner*
L. Jonathan Ross
Stephen E. Borofsky
Divorce – alimony; qualification of expert on issue of ability to work; exclusion of evidence to rebut expert; exclusion of homeowner's testimony as to value of renting out a room in marital abode; whether court abused its discretion in awarding alimony
01-101 Duhaime,* Shawn, Kathleen
Duhaime
Paul McEachern
v. Johnson & Dix Fuel Corporation
Jeffrey Osburn
Negligence – collateral estoppel; application of incorrect standard of review in ruling on summary judgment motion; whether issue of furnace's role in causing injury was actually litigated in workers' compensation hearing; whether plaintiff had full and fair opportunity to litigate his claim
01-103 State of NH
Attorney General
v. Dukette,* Sherry
David M. Rothstein
Donna J. Brown
Caroline L. Smith
First degree murder – numerous issues including excluding evidence of victim's drug use and defendant's hearsay statements; whether State opened the door to previously excluded evidence; failure to instruct jury on justification for using deadly force and that person is not required to retreat from encounter within her dwelling; exclusion of restraining order
01-106 Harrington,* Donald, Linda
Harrington, Ryan Harrington,
Leigh Harrington, by her
Mother and Next Friend Linda
Harrington
Earl L. Kalil, Jr.
Robert G. Eaton
v. Brooks Drugs, Inc. and Maxi-Drug,
Inc.
Douglas N. Steere
Negligence, loss of consortium, loss of parental society and companionship – whether plaintiff was injured in the course of his employment, thereby barring his negligence claim against his employer; collateral estoppel; whether child has cause of action for loss of companionship and society of injured parent
01-107 Office of the Consumer Advocate,* Appeal of
Michael W. Holmes
Robert A. Bersak
Henry B. Stebbins
Attorney General

Public utilities – special contract for electricity; numerous issues including whether special contract is necessary to attract load or for economic development; whether RSA 378:18-a, III applies to special contract; failure to hold hearing or allow petitioner to be heard at meaningful time in a meaningful manner; whether special contract was a new contract or modification
01-109 Rood,* Steve, Allie Rood
William M. Ladd
v. Moore, Charles E.
William J. Keefe
Landlord-tenant – unlawful entry by landlord; whether court misconstrued "willfully" in RSA 540-A:2 and :3; whether amount of attorney's fees was reasonable
01-115 Mcintire, Robert
Steven M. Latici
v. Lee*, Susan, Esq., Fay Melendy,
Esq.
William C. Saturley
John C. Kissinger, Jr.
Legal malpractice – numerous issues including whether court erred under Evidence Rules 403 and 407 by admitting affidavit; allowing expert to offer testimony of previously undisclosed opinions; application of doctrine of judgmental immunity; exclusion of evidence of plaintiff's financial condition; allowing plaintiff to prove the "case within the case" through speculative testimony of experts
01-123 Newburyport Five Cents Bank
Jill Haley Murphy
for intervenor Judy MacDonald:
Charles A. DeGrandpre
Suzanne M. Woodland
v. MacDonald*, John E. Jr.
Michael J. Bolduc
Real estate attachment – judgment debt; whether assets of trust are available for attachment under Massachusetts law
01-138 Metcalf, Robert L.
pro se
v. Lawson*, Shirley
John F. Griffin, Jr.
Elizabeth Cazden
Contract action – personal jurisdiction; whether New Jersey resident, not in the business of selling equipment, who advertises single item for sale on Internet auction site, is subject to jurisdiction in New Hampshire court for action based on sale of defective merchandise
01-140 Sweetlands, Inc.*
Sanford Roberts
v. Cragin, Patrick
William L. Tanguay
Breach of contract – collateral estoppel; res judicata; whether court erred by dismissing contract claims where plaintiff was bank's assignee under memorandum of foreclosure and was real party in interest for any claim to excess proceeds from foreclosure sale
01-143 Town of Alton
James M. Sessler
v. Moulton,* Francis and Diantha,
Elizabeth Locke, Mary Lance,
Charles Adams, Linda Troendel,
Julian and Doris Sawyer, Arthur
and Anne Moulton, Warren
Zitzow, Phylis Draper
Michael L. Donovan
Municipal powers – sale of land; whether town trustees of trust funds may sell real property without approval of town meeting; whether land conveyed to town by fiduciary deed may be lawfully conveyed without a town meeting vote
01-144 State of NH
Attorney General
v. Stickney,* Patrick S.
Robert J. Moses
Driving after certification as habitual offender – improper amendment of indictment; whether prior misdemeanor conviction alleged in indictment had to be proven to jury beyond a reasonable doubt; allowing State to call defendant's prior attorney to identify him in violation of attorney-client privilege; discovery violations
01-146 Willitts,* William J., Appeal of
pro se
Marguerite Wagling
Attorney General
Medical license – reapplication for licensure; whether board of medicine erred by rejecting appeal; failure of board to consider corrected application; due process; consideration of material from divorce hearing three years earlier after applicant had served time in prison and paid bulk of his support; whether board members were biased
01-153 Hildreth, Jodi, Administratrix of
the Estate of Dwayne Hildreth,
Jodi Hildreth, Individually, and
Jodi Hildreth, as Parent and
Next Friend Of Zebulon
Hildreth
Kenneth C. Brown
v. Evans,* Thomas O., M.D.,
George A. Idelkope, M.D.
John E. Friberg, Sr.
Todd Hathaway for Thomas O.
Evans, M.D.
Steven Hengen for George A.
Idelkope, M.D.
Personal jurisdiction – medical malpractice; whether court has personal jurisdiction over Vermont physician who treated decedent in his Vermont office
01-154 State of NH
Attorney General
v Enderson,* Ronald
Steven M. Gordon
Lucy J. Karl
Gambling – numerous issues including denial of motion to suppress; giving jury instructions on accomplice liability and on money not needing to change hands for conviction; exclusion of expert testimony; whether sentence was excessive; whether inability to obtain review of misdemeanor sentence by sentence review board violates equal protection
01-156 Quintey,* Scott
Sheila Zakre
Ronald K. Lospennato
v. Sturm, Ruger and Company, Inc.
Robert Jauron
Employment discrimination – application of incorrect burden of proof; whether employer's burden to prove that discrimination is based on bona fide occupational qualification includes proving inability to make reasonable accommodation to needs of disabled employee; whether human rights commission conducted adequate investigation; whether commission and court erred in finding no probable cause that employer discriminated against employee
01-161 Emery, Alex, Gail Emery
pro se
v. Dolac,* Rogue
pro se
Landlord-tenant – eviction; bringing eviction action against person who is not lessee
01-162 Carter,* Patricia



Silva, Vitor
v.



v.
Silva, Vitor d/b/a Sons of the Wind
Farm and Sons of the Wind Farm,
LLC

Carter,* Patricia
Edwinna C. Vanderzanden for Patricia Carter
Charles F. Dalton, Jr. for Vitor Silva

Default – motion to strike; refusal to strike default caused by attorney's psychological disabilities; refusal to strike default caused by diversion of mail by vandals
01-164 State of NH
Attorney General
v. Ouellette,* Jay
pro se
Caroline L. Smith
Sentencing – whether conditions imposed as part of sentence are unenforceable because they contain no time limit and are not authorized by RSA 651:2
01-168 Slattery,* Arthur, Barbara
Bielagus,
John G. Cronin
John F. Bisson
v. The Norwood Realty, Inc.
David S. Phillips
Taxation of interest – whether Nault v. N&L Development Company should be overruled; whether plaintiffs entitled to interest on verdict between date of appeal and date of supreme court decision
01-169 Carter, Krystie G.
pro se
v. King, * Brooks
David H. Bownes
Stalking order – extension; sufficiency of evidence; whether defendant engaged in stalking within the meaning of RSA 633:3-a
01-186 Jacques,* Ann
Robert I. Morgan
v. First Providence Capital
Kerrie LaBianco, Manager
Lease of personal property – return of deposit; numerous issues including whether court erred by granting motion to dismiss; denial of motion to strike; whether court erred by considering affidavit and purported lease as evidence; whether choice of forum clause in unexecuted lease is enforceable and if so, whether court should have enforced it
01-251 State of NH,* Petition of
Attorney General
William Chapman
for Keene Sentinel
John A. Bell and Paul Twomey for Eugene V. Bowman
Criminal investigation – release of information; whether district court erred by ordering release of search warrants and accompanying paperwork prior to indictment while State is still engaged in investigation; whether owner of premises has independent right to access search warrant applications and affidavits

* Note: Some of the questions in 2000-322, Appeal of John P. Brown, Jr., were accepted in August 2000. After granting motion for reconsideration, court accepted additional question in May 2001.