Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted November 2001


01-134 Exeter Hospital Medical Staff*
& a.
v. Board of Trustees of Exeter Health
Resources, Inc. & a.
Robert M. Larsen
Michel A. LaFond
for intervenor: Wilfred L. Sanders, Jr.
Daniel P. Schwarz
Steven W. Kasten
Imposition of "gag order" - whether medical staff is a voluntary association and has standing to sue; whether claim concerning lawfulness of gag order was moot; whether entity waived right to enforce gag order after it made public the information it had sought to prevent being disclosed
01-272 Baker Valley Lumber, Inc.* v. Ingersoll-Rand Co. and Air Services of N.H., Inc.
Russell F. Hilliard
David P. Slawsky
Richard C. Nelson
Jonathan Lax
Kenneth G. Bouchard
Product liability, negligence – preclusion of testimony from two witnesses on ground that their opinions are not scientifically valid; whether trial court erred in concluding that expert witness disclosed against one co-defendant could not be used against other co-defendant
01-418 In the Matter of Dorothy C. Lockaby* and William E. Smith
Doreen F. Connor for Ms. Lockaby
Diane M. Puckhaber for Mr. Smith
Post-divorce proceedings – whether petitioner has constitutional right to choose residence for herself and minor children where proposed relocation is for legitimate employment purposes; whether respondent proved that move to Virginia would be contrary to children's best interests; whether court erred by conditioning petitioner's retention of custody on her New Hampshire residency
01-425 Transmedia Restaurant Company, Inc.* v. Devereaux, Theresa and The Blarney Stone Tavern, Inc.
Paul A. Rinden David C. Engel
Security interest – liquidation by auction sale; whether jury could return award for multiple damages under Consumer Protection Act when issue of whether unfair business practices were "willing and knowing" was not submitted to jury; lack of expert testimony supporting award of damages; cross-appeal – whether award of punitive damages under Consumer Protection Act prohibits consumer from recovering civil compensatory damages under any other applicable law; whether court erred by reversing, post-verdict, its ruling to permit jury to consider exhibit; reduction of damages; setting aside jury verdict as against the weight of the evidence and as result of plain error
01-440 Koor Communication, Inc.* v. City of Lebanon
K. William Clauson H. Bernard Waugh, Jr.
Municipal regulation – numerous issues including whether height limitation in zoning ordinance can preclude radio stations licensed by FCC; whether actual conflict exists between zoning ordinance and FCC minimum height requirement for radio tower; federal preemption; hearsay; dismissal of takings claim
01-442 In the Matter of Donald R. Main* and Mona A. Main
David W. Rayment
William B. Pribis
Keri J. Marshall
Divorce – whether court erred in relying on exercise of right against self-incrimination to award divorce on basis of adultery; whether greatly disproportionate division of marital assets was abuse of discretion; penalizing party for wasting business assets when court order forced him to do so; whether master may conduct mediation and then preside over final hearing
01-443 In the Matter of Dorothy H. White and Keener S. White, Jr.*
Doris S. Jacques
James J. Bianco, Jr.
Jeffrey A. Meyers
Denise A. Daniel
Post-divorce proceedings – whether court erred by applying apportionment formula in Hodgins v. Hodgins, 126 N.H. 711 (1985), to pension; whether court erred in finding that respondent's promotions resulting in increases in pension benefits were foreseeable; whether court erred in ordering wage assignment; whether court erred in approving qualified domestic relations order providing for a single survivor benefit
01-453 Pennelli, Hilda v. Town of Pelham*
Michael Donovan Diane M. Gorrow
Property tax – exemption for elderly; whether town may grant partial tax exemption so that only elderly person's residence is exempt; whether elderly person can receive elderly tax exemption for attached dwelling unit in which someone else resides
01-457 Allen,* Carol and Gary Allen v. Dover Co-Recreational Softball League & a.
Joseph F. McDowell,III
Mark D. Morrissette
Robert Backus
Glen E. Graper
Russell F. Hilliard
Negligence – injury during coed softball game; whether court erred by dismissing action based on assumption of the risk
01-466 Appeal of Cabletron Systems, Inc.*
Eric G. Falkenham for Cabletron and Liberty Mutual
Brian R. Barrington for Patricia J. Sanfacon
Attorney General
01-469 State of NH v. Remick,* Michael
Attorney General Appellate Defender
Charles F. O’Leary
Attempted aggravated felonious sexual assault – admission of statement allegedly made by defendant while in police custody that was not disclosed to defense counsel prior to trial; whether verdict is against weight of evidence and inconsistent with verdict of not guilty returned by jury on another charge
01-472 In the Matter of Elizabeth Reed and Chisholm Gentry, II*
Marian N. Sagona for Ms. Reed
Donald A. Kennedy for Mr. Gentry
Post-divorce proceedings – whether court modified divorce decree beyond the relief requested in the pleadings; whether court erred when, after failing to find substantial change in circumstances that makes continuance of original order of providing health insurance but not life insurance improper and unfair, the court ordered respondent to carry life insurance instead of health insurance because it was in child's best interests
01-476 Pease, Wendy v. Robinson,* Jack
Katherine B. Stearns Richard W. Heiser
Domestic violence – denying defendant opportunity to cross-examine plaintiff at final hearing; denying defendant opportunity to call witnesses; equal protection
01-479 Duffy,* Bernard J., Eleanor K. Duffy, Donald R. Bryant and Eleanor G. Bryant v. City of Dover and City of Dover Zoning Board of Adjustment
Donald R. Bryant George E. Wattendorf
Malcolm R. McNeill, Jr
. for intervenor
Municipal regulation – whether intervenor has absolute right under zoning ordinance to extend provisions of business district 50 feet into residential district; whether court erred by upholding ZBA decision allowing commercial use of property in residential district
01-481 DeVere, Peter v. US Sprint President Len Lauer*
pro se David J. Shulock
Small claims – default; failure to strike default where service was not made on agent of defendant; failure to dismiss case because defendant was not a proper party and was not served; collateral estoppel; denial of request for new hearing where failure to appear at prior hearing was due to court clerk's use of wrong address for counsel
01-483 Kelly, John v. Lallier,* Lionel
Peter J. Duffy Elizabeth Cazden
Pauline L. Guay
Negligent misrepresentation, violations of statute – defective septic system; whether court erred in allowing plaintiff to go forward on theories not alleged in writ; whether court erred in finding defendant liable for violation of RSA 477:4-d in light of decision in Snierson v. Scruton, 145 N.H. 73 (2000), that statute does not create private right of action; whether court erred in finding defendant liable for violation of RSA 485-A:39 in light of decision in Gray v. First NH Banks, 138 N.H. 279 (1994), that failure to comply with statute does not create civil liability; sufficiency of evidence
01-486 LaMotte,* Richard F. v. Canaan USA Speedway, Charles Elliott, June Elliott, C.L.E., Inc.
Nancy S. Tierney Peter M. Flanagan
Breach of contract – rules governing automobile racing at Speedway; whether certain named defendants were proper parties; whether Patten was an agent of the defendants; whether "lack of a car count" was sufficient reason to breach contract; whether court erred in penalizing plaintiff for failing to specify damages when records were under defendant's control
01-489 Labor Ready Northeast, Inc.* v. NH Department of Labor
David A. Garfunkel
Andrea K. Johnstone
Attorney General
Wage adjustment – whether department of labor has authority to initiate wage claim absent a wage claim having been filed by an employee; whether court erred by considering facts contained in affidavit first presented as attachment to State's motion for summary judgment
01-491 State of NH v. Tarr,* James
Attorney General Mark L. Sisti
Aggravated felonious sexual assault – whether court erred by joining for trial all indictments even though different victims and time periods were alleged; sufficiency of evidence
01-492 State of NH v. Allard,* Yvonne
Attorney General Jon Meyer
False reports to law enforcement – sufficiency of evidence; violation of free speech rights; entrapment; due process; whether defendant, who was charged with falsely alleging excessive force against police officers carrying out arrest, is entitled to production of memos by officers describing arrest
01-495 State of NH v. Boyle,* Daniel
Attorney General James P. Loring
Driving after certification as habitual offender, disobeying an officer – motion to suppress; whether seizure of defendant by police was permitted as a community caretaking function
01-502 Woods,* Charlotte, Appeal of
Leslie C. Nixon for Ms. Woods
Andrew Merrill for Choice Industrial Solutions, Inc. and American Hardware Insurance Company, TPA, Bert Sell & Co.
Attorney General
Workers' compensation – numerous issues including application of wrong legal standard to determine that claimant had reasonable earning capacity; whether employer proved change in medical condition of claimant; failure to prove existence of reasonable stable market of suitable work under normal employment conditions paying as much as claimant earned at the time of injury available to claimant; whether board erred in rejecting opinion of vocational counselor on grounds that competent medical evidence was required; improper shifting of burden of proof
01-505 State of NH v. Sanchez,* Alberto
Attorney General Appellate Defender
David Hammerstad
Robbery – denial of jury instruction on lesser included offense of theft; admission of booking photograph of the defendant for purposes of identification
01-506 State of NH v. Toledo,* Luis
Attorney General Appellate Defender
Timothy M. Landry
Driving after certification as a habitual offender – whether statute limits director's authority to impose period of certification beyond four years; whether rule authorizing indefinite period of habitual offender certification violates separation of powers doctrine and is unlawful delegation of legislative authority; whether statute and rule are unconstitutionally vague
01-514 State of NH v. Poplawski,* Jeffrey
Attorney General Appellate Defender
Joachim Barth
Aggravated felonious sexual assault, felonious sexual assault – admission of prior bad acts; admission of entire videotaped statement of victim when defendant only used part of statement during cross-examination which did not create any misleading impressions concerning statement as a whole
01-515 Ball,* Jeanette v. Swift, Mark
Jack P. Crisp, Jr. Dennis Ducharme
Negligence - motor vehicle collision; sufficiency of evidence
01-516 State of NH v. Chrisicos,* William R.
Attorney General Eric R. Wilson
Driving while intoxicated – whether court erred by admitting statements made by defendant during the booking process absent proof that he knowingly and voluntarily waived his Miranda rights
01-526 Strafford Rivers Conservancy and the Strafford County Conservation District
v. Carl W. Potvin, Executor u/w of George Gagne and Elizabeth A. Rouleau*
Elizabeth A. Rouleau v. Edwinna Vanderzanden
Donald H. Whittum Steven M. Latici and Robert C. Varney for Ms. Rouleau
James Wheat and Jeffrey H. Karlin for Ms. Vanderzanden
Petition to reform conservation easement deed, undue influence claim –; whether defendant-attorney had conflict of interest creating unrebutted presumption of undue influence
01-531 In the Matter of Anne C. Sutton* and John E. Sutton, Jr.
K. William Clauson for Ms. Sutton
Ronna F. Wise for Mr. Sutton
Divorce – whether alimony awarded was insufficient; whether petitioner is capable of renewing her nursing license and finding employment; improper division of defined benefit pension plan; failure to award interest in respondent's supplemental retirement payments
01-532 Gauthier, Constance d/b/a Gauthier Realty v. Sanders, Sonya*
pro se Elliott Berry
Christine Wellington
Landlord-tenant – whether "non-renewal of lease" constitutes "other good cause" for eviction
01-533 AWL Power, Inc.* v. City of Rochester and Rochester Planning Board
David W. Rayment
William B. Pribis
Danford J. Wensley
Municipal regulation – numerous issues including whether subdivision and site plan approvals had vested under common law or RSA 674:39; whether city was contractually bound to honor approvals; equal protection; discrimination by city; denial of damages; whether court misconstrued RSA 674:39
01-534 In re M. Children
Paul J. Bennett for father*
Mary Ann Callanan, CASA GAL
Attorney General
Confidential case under RSA 170-C
01-535 Longo, Tammy, Rob Strom v. Lapierre,* Marcel
pro se David E. LeFevre
Landlord-tenant – whether court erred in finding violation of RSA 540-A:3 when court found landlord's conduct was not willful or intentional; whether court erred in finding that landlord violated temporary orders that were superseded by a final order; whether court erred in awarding statutory damages for violation of temporary orders; failure to grant reconsideration or remittitur based upon newly discovered evidence that tenants committed fraud on court
01-536 In the Matter of Peter Letendre* and Linda Letendre
Doreen F. Connor and L. Jonathan Ross for Mr. Letendre
John A. Macoul for Ms. Letendre
Attorney General
Divorce – failure to give reasons for unequal distribution of property; whether personal injury proceeds are marital property; whether lifetime alimony award was error; exclusion of expert opinion on fair market value of business stock due to its disclosure being several days late; whether court erred by relying on Stock Redemption Agreement option price as evidence of fair market value; failure to make petitioner's payment of respondent's health insurance tax deductible alimony
01-541 In the Matter of Jeffrey A. Twombly and Susan B. Twombly*
Charles V. Moses
Christopher J. Seufert
John D. Cameron
Post-divorce proceedings – whether voluntary increase in visitation amounted to de facto relinquishment of primary physical custody; whether court erred in using best interest of the child test in redetermining custody in a relocation case, rather than Perreault v. Cook standard; failure to consider mother's fundamental right to travel
01-546 Menezes,* Bruce v. State Farm Fire and Casualty Co. and Peter O’Neill
Edward F. Wallace Barry M. Scotch
Wiretapping, consumer protection act, unfair and deceptive insurance settlement practices, infliction of emotional distress – whether damages provision of RSA chapter 570-A apply
01-548 MARCOR Remediation, Inc. v. M.L. Halle Oil Service, Inc.* and Mark S. Halle
Richard C. Gagliuso
Peter S. Cowan
Marc Heath
Timothy E. Copeland, Jr.
Breach of contract – failure to dismiss when plaintiff had not complied with contractual dispute resolution provisions; erroneous award of attorney's fees; whether plaintiff presented sufficient evidence that its performance should be excused on the ground of impossibility; whether slurry loss by itself could constitute an "unanticipatable physical condition"; failure to exclude evidence from divorce proceeding; allowing plaintiff to use prejudicial phrases such as "male chauvinist"
01-558 City of Manchester v. Airport Business Center Condominium Unit Owners’ Association,* New Oxford Realty Trust, and Harvey Road Airpark, L.L.C.
Daniel D. Muller, Jr. Mark H. Puffer
Eminent domain – whether defendants may introduce evidence of damages caused by the extension of airport runway; whether damages are limited to those caused by relocation of a road even though road was relocated solely because of extension of runway
01-559 State of NH v. Denoncourt,* John
Attorney General Appellate Defender
David Hammerstad
Driving after certification as habitual offender, disobeying police officer, resisting arrest – whether warrantless search of defendant's wallet fell within "community caretaking" exception to warrant requirement; whether officer's in-court identification of defendant should have been excluded
01-560 City of Portsmouth Board of Police Commissioners* v. International Brotherhood of Police Officers, Local 402
Daniel P. Schwarz
Thomas J. Flygare
Peter C. Phillips
Municipal employment – arbitration; whether arbitrator erred by imposing on police commission burden of proving the officer was likely to abuse force in the future; whether action of chief of police denied officer progressive discipline; whether a memorandum precluded police commission from considering officer's full disciplinary history
01-563 Goode,* Henry F., Jr. v. Buckley, Michael L., CPA, The Office of the Legislative Budget Assistant of the State of New Hampshire and The State of New Hampshire
John A. Curran Daniel J. Mullen
Right-to-Know Law – numerous issues including denial of access to witness interview summaries, telephone surveys, minutes and audit memoranda related to audit performed by Office of Legislative Budget Assistant; improper shifting of burden of proof; failure to narrowly apply exceptions for confidential information and work papers; denial of attorney's fees; whether Vaughn index provided by State waived claim of privilege
01-564 State of NH v. Ramos,* Julio
Attorney General Appellate Defender
Howard Clayman
Aggravated felonious sexual assault, felonious sexual assault – denial of motion to sever charges involving two victims
01-570 In re B. Children
B. Michael Cormier for father*
William Delker for DCYF
Melorah Bisaillon
NH Public Defenders
Brooks Carter
Guardianship over minors – whether probate court has subject matter jurisdiction as to guardianship over person of minor; denial by family division of petitioner's request for visitation and information about his children; denial of request for religious instruction of children; denial of hearing; denial of request to appoint counsel
01-587 In re P. Children
Elizabeth Cazden for mother*
A.J. DeFusco, Jr. for mother
Gary Paradis for father
Laura Brevitz, GAL
Attorney General
Confidential case under RSA 169-C
01-591 State of NH v. Atkins,* George B.
Attorney General Paul Hodes
Driving after certification as habitual offender – exclusion of mobile telephone records; sufficiency of evidence
01-592 Appeal of Hillsborough County*
Peter McDonough and Carolyn M. Kirby for county
John Mendolusky for International Chemical Worker’s Union Council/UFCW
Attorney General
Public employee labor relations – modification of bargaining unit; inclusion of position exercising supervisory authority in same bargaining unit as employee supervised; inclusion of position that does not share community of interest with remainder of bargaining unit