Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted December 2002

00-342 Appeal of Nashua Police Commission*
James M. McNamee for Nashua Police Commission
James Donchess for Nashua Police Patrolmen’s Association
Attorney General
Unfair labor practice - failure to apply positive assurance test in determining whether grievance is arbitrable; whether means of notifying police officers about court attendance involves managerial policy within exclusive prerogative of the public employer; whether board erred in relying on past practices and alleged clear language of collective bargaining agreement
01-733 In re Marcy G.
James S. Godron for Marcy G.*
Attorney General
Office of Public Guardian
Case is confidential under RSA chapter 135-C.
02-0316 State of NH v. James H. Fawcett*
Attorney General Robert M. Shepard
Aggravated driving while intoxicated -- sufficiency of evidence
02-0554 In re Juvenile 2002-0554
Attorney General
pro bono appellate panel
for father*
Case is confidential under RSA chapter 170-C.
02-0555 Melvin Graham* v. Warden, Northern NH Correctional Facility
Appellate Defender Attorney General
Habeas corpus -- whether petitioner is procedurally barred from raising issue of denial of counsel
02-0558 In re Juvenile 2002-0558
Attorney General
pro bono appellate panel
for mother*
Case is confidential under RSA chapter 170-C.
02-0569 State of NH v. Harvey Pratt*
Attorney General
Appellate Defender
Joseph Malfitani
Motion to modify sentence for interfering with custody of minor -whether court erroneously declined to remove, as condition of parole eligibility, that defendant complete Sex Offender Program
02-0585 In re Guardianship of Theresa Callahan
William J. Hurley
pro bono appellate panel
for ward*
Guardianship - whether NH court had jurisdiction; whether evidence was sufficient to prove functional incapacity; whether guardian selected was suitable
02-0612 State of NH v. Jeffrey Bean*
Attorney General Appellate Defender
Randy Hawkes
Jury instructions, self-defense - whether court erroneously instructed jury that self-defense would not apply if stabbing took place within curtilage shared by defendant and victim
02-0629 Mountain Environmental, Inc. v. Abatement International/Advatex Associates, Inc.* & a.
Frank E. Kenison Brian T. Tucker
Construction contract -- payment bond; failure of claimant to file claim against bond in accordance with statute; whether surety and contractor waived right to present evidence and defenses; defensive recoupment; whether court erred by treating motion in limine as motion for summary judgment; whether defendants' answer admitted amount claimant was owed from bond; ambiguity in contract as to amount owed to claimant; cross-appeal -- whether court erred in precluding petitioner from claiming against the bond for additional sums it was owed as change orders under its contract
02-0633 The Craftsbury Company, Inc. & a. v. Assurance Company of America*
James B. Kazan James R. Fox
Insurance coverage – specialty contractors policy; whether action is barred by six-month statute of limitations; whether Massachusetts action alleges property damage caused by an occurrence; whether policy's business risk exclusions bar coverage for the indemnification action
02-0638 Catherine Mahoney* & a. v. Town of Canterbury & a.
Finis E. Williams, III Barton L. Mayer
Barry C. Schuster
Injunction -- placing burden on landowner to show that road was used with permission of the owner; sufficiency of evidence that public use of road was adverse and put owners on notice of adverse claim of right; whether road is a class VI public highway; sufficiency of evidence of damages; award of lost profits; cross-appeal -- whether court erred in awarding damages for only two weeks of expenses when defendant was enjoined from accessing its property for over three months; denial of attorney's fees
02-0641 State of NH v. Robert Donohue*
Attorney General Appellate Defender
Theodore Barnes
Second degree assault, conspiracy to commit assault -- exclusion of defendant's brother's written statement indicating his involvement in altercation; failure to strike allegation that defendant and his brother left the victim lying in a pool of blood; sufficiency of evidence of conspiracy
02-0655 United States Fire Insurance Company* v. Windsor-Embassy Corporation & a.
Melinda S. Gehris Ms. Victoria F. McGrath, pro se agent for Windsor-Embassy Corporation
Kevin C. Devine for Zurich American Insurance Company
Jeffrey H. Karlin for Continental Insurance Company
Insurance coverage -- whether plaintiff is barred from proceeding in equity under any theory that would require a coverage determination due to court's dismissal of plaintiff's declaratory judgment action; whether court erred by sua sponte ruling that declaratory judgment claim was time-barred
02-0659 Appeal of Carol L. Moulton*
Shawn E. Nichols for claimant
James E. Owers for Liberty Mutual Insurance Company
Workers' compensation -- failure of board to apply analysis in Appeal of Briand, 138 NH 555 (1994); failure of board to identify reasons to ignore uncontradicted expert medical evidence; failure of board to rule on issue properly before it under RSA 281-A:23
02-0660 State of NH v. William T. Winstead*
Attorney General Nancy S. Tierney
Driving under the influence -- admission of results of blood alcohol test to which defendant did not consent; sufficiency of evidence that defendant operated motor vehicle
02-0667 Clare T. Daly* v. State of NH
Clare Daly, Trustee, The Pines Lodge Realty Trust v. State of NH
Carroll County Leasing Company and Chick Lumber v. State of NH
Randall F. Cooper
Arthur G. Greene
Glenn A. Perlow
Attorney General
Eminent domain -- damages; hearsay; whether impact of special highway corridor and wetlands ordinances affected community as a whole; whether adoption of ordinances was town's subsequent, independent decision; whether court erred by ceding authority to department of transportation to determine if element of bypass project was compensable; failure to award all direct and indirect damages related to the project
02-0668 State of NH v. Leonard Brainard*
Attorney General Appellate Defender
Thomas Ficarra
Simple assault -- sufficiency of the evidence; whether confession was voluntary; whether court should have declared mistrial where juror knew victim's boyfriend
02-0670 Appeal of Laconia School District*
Paul T. Fitzgerald for Laconia School District
Steven R. Sacks for Laconia Education Association
Public employee labor relations -- whether board had jurisdiction to review arbitrator's award; failure to provide hearing on issue of factual errors by arbitrator
02-0674 State of NH v. Allan Cullen*
Attorney General Appellate Defender
Larissa Kiers
Aggravated felonious sexual assault -- denial of in camera review of victims' privileged records; failure to prevent testimony of witness who offered hearsay and irrelevant evidence; failure of State to give notice to defendant of witness's name and subject area of testimony; failure to strike testimony of witness who violated sequestration order
02-0675 Appeal of the City of Laconia*
Mark T. Broth for City of Laconia
John S. Krupski for Laconia Professional Firefighters
Public employee labor relations -- composition of bargaining unit; whether lieutenants and captains are supervisors; whether it is permissible to include supervisory lieutenants and captains in bargaining unit with firefighters; laches
02-0680 William Porter & a. v. Town of Sanbornton*
Richard Roy & a. v. Town of Sanbornton
Margaret H. Nelson Walter L. Mitchell, III
Abatement of property taxes -- numerous issues including whether court erred in granting abatements absent showing that amount of increased assessment resulted in any individual taxpayer bearing disproportionate share of town's total tax burden; whether finding that selectmen did not act in good faith or rely on sound assessment methodology constitutes proof of disproportionality; whether court erred in finding that selectmen did not act in good faith and that assessment methodology was unsound; joinder of 125 taxpayers in one single appeal
02-0681 Sarah E. Williams v. T&M Associates, Inc.*
Michael R. Mortimer K. William Clauson
George E. Spaneas
Wage claim -- whether court erred in finding that labor department's decision that employees working less than 20 hours per week did not accrue vacation pay had no factual support
02-0682 A. Dana Arey v. T&M Associates, Inc.*
Michael R. Mortimer K. William Clauson
George E. Spaneas
Wage claim -- whether court misconstrued department of labor decision; failure of court to defer to department of labor decision
02-0689 Philip Schaefer & a. v. Eastman Community Association*
Alexander J. Walker, Jr.
Daniel E. Will
Thomas J. Donovan
Community association -- discontinuance of alpine ski area; whether first vote to close ski area was ultra vires; whether declaration fails to set forth lawful process by which amenity at community may be discontinued; award of attorney's fees; sufficiency of evidence of damages
02-0692 In re Juvenile 2002-0692
Attorney General
Appellate Defender
Case is confidential under RSA chapter 169-B.
02-0694 State of NH v. David R. MacDonald*
Attorney General Kent M. Barker
Marta E. Rodriguez
Negligent homicide, conduct after an accident -- denial of motion for new trial; denial of bail
02-0695 State of NH v. David Eastman (Appeal of David H. Bownes*)
Attorney General David H. Bownes
Indigent defense -- adequacy of counsel fees; whether trial court erred by denying appointed counsel's request for compensation; failure to articulate reason for denial; due process
02-0696 State of NH v. Kevin Elwell*
Attorney General Richard N. Foley
Simple assault -- whether defendant waived defenses by not providing notice to State pursuant to court rule; failure to allow defendant to cross-examine officers using pictures of injuries; failure to give missing witness jury instruction; increase in sentence after de novo appeal
02-0698 In re Juvenile 2002-0698-A, Juvenile 2002-0698-B and Juvenile 2002-0698-C
Case is confidential under RSA chapter 170-C
02-0699 Petition of Alida Fortier*
Roy S. McCandless
Attorney General

Guardianship of a minor -- visitation -- denial of motion to modify visitation; denial of motion to vacate guardianship; allowing 17-year-old parent to participate in court proceeding without counsel; denial of request for guardian's medical records
02-0704 Peter Gianola* v. Continental Casualty Company
Jared R. Green
H. Edward McBurney, Jr.
Dona Feeney
Worker's compensation lien -- whether statute requires that lienholder bear attorney's fees and costs on a third-party recovery equaling 165% of the fees contracted for between the injured party and his attorney; double recovery
02-0710 State of NH v. Christopher Boulais*
Attorney General Stephen J. C. Woods
Disorderly conduct -- whether a private conversation in a private place of business that is open to public, where only evidence of any person's reaction is the reaction of person to whom the defendant's statement is directed, can constitute grounds for conviction under RSA 644:2, II(b); whether RSA 644:2, II as construed by district court is void for vagueness or violates right to free speech
02-0758 State of NH v. Anthony Van Dyck*
Attorney General
Stephen Fuller
Jean M. Reed
Robert A. Stein
Simple assault – violation of restraining order – whether trial court erred by disqualifying defendant’s attorney, where attorney may be called to testify in pre-trial motion to dismiss, but not in subsequent trial