Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted October 2002

2002-0068 State of NH

Attorney General

v. Gary Howard*

Appellate Defender

Philip Desfosses

Aggravated felonious sexual assault, second degree assault -- whether court erred by declining to colloquy with defendant to ensure that he authorized defense counsel to admit he committed the acts charged
2002-0383 State of NH

Attorney General

v. Wigberto Burgos*

John P. Newman

Violation of restraining order, harassment, simple assault, criminal threatening -- sufficiency of evidence; denial of jury instruction that conditional threats do not constitute criminal threatening
2002-0384 In re Grand Jury Subpoena for Medical Records of Curtis Payne*

Paul J. Bennett

Appellate Defender

Robert G. Whaland for St. Joseph Hospital

Attorney General

Grand jury subpoena -- whether patient-physician privilege prevents disclosure of defendant's medical history and file to the State for purpose of determining if defendant suffered serious bodily injury to support an aggravated driving while intoxicated charge
2002-0390 In re Grand Jury Subpoena for Medical Records of Scott Carta*

Attorney General

Ghazi D. Al-Marayati

Robert G. Whaland for St. Joseph Hospital

Grand jury subpoena -- whether court erred by ordering defendant's privileged medical records to be reviewed in camera prior to release to grand jury; whether disclosure of privileged medical records was "essential"


2002-0410 State of NH

Attorney General

v. Thomas Wood*

Appellate Defender

Ryan L. Russman

Aggravated felonious sexual assault, possession of child pornography -- allowing State to amend indictment after State rested; denial of due process on the pattern indictments; whether child pornography statute is unconstitutionally vague and overbroad; refusal to permit defendant to recross-examine witness; sufficiency of evidence
2002-0475 In the Matter of Roy F. Cuddahy* and Debra L. Cuddahy

Elizabeth Cazden, for petitioner

Mark S. Moeller for respondent

Divorce - whether business was a marital asset; whether division of property was inequitable; alimony award; inclusion of bonus in husband's income for purposes of calculating alimony
2002-0477 In the Matter of Gabriel D. Cohen and Karyl Cohen*

Gary M. Burt for petitioner

David A. Bailinson for respondent

GAL: Karen M. Shea

Divorce – denial of request to stay divorce decree and for hearing on distribution of marital assets following entry of judgment pro confesso



2002-0478 LaMontagne Builders, Inc.

Rodney L. Stark

v. Bank of New Hampshire, Bowman Brook Purchase Group, Bowman Corporation, R. Scott Brooks and HABS/CDM, Inc.

Daphne Lessard for Bowman Brook Purchase Group and R. Scott Brooks*

David K. Pinsonneault and Arnold N. Rosenblatt for Bank of NH

Jason M. Craven for Bowman Green Development Corp.


Fraudulent transfer – award of damages on claims raised sua sponte by court without notice to defendants; piercing of corporate veil; award of attorney's fees
2002-0486 Estate of Richard H. Ireland, Jr. and Sharon Ireland*

John E. Lyons, Jr.

v. Worcester Insurance Co. and St. Paul Fire and Marine Insurance Company

Stephen Roberts and Kathleen Monroe for St. Paul F&M Ins.

Lawrence W. Getman for Worcester Ins. Co.

Uninsured motorist coverage -- whether decision in Matarese v. NH Municipal Association Property-Liability Trust, 147 N.H. 396 (2002), should be applied prospectively only; whether decision in Matarese is contrary to legislative intent
2002-0507 Appeal of Baldoumas Enterprises, Inc. d/b/a Sparky's American Café*

Robert A. Shaines

Attorney General

Liquor commission -- whether commission erred in finding that appellant served an intoxicated person; whether commission exceeded its authority in ruling that appellant's violation of RSA 179:5, I, was a significant and contributing cause of injuries
2002-0511 In re Juvenile 2002-0511 A; In re Juvenile 2002-0511 B

Attorney General

Brian P. McEvoy for mother*

Paula J. Werme for Intervenor

CASA, David N. Sandberg

This case is confidential under RSA chapter 169-C.
2002-0516 Royal Gardens

Harold E. Ekstrom

v. Veronica McDavitt*

Elliott N. Berry

Landlord-tenant -- eviction; whether altercation between tenant and her nonresident boyfriend constituted substantial violation of lease within meaning of 24 C.F.R. § 247.3
2002-0517 Appeal of Suzanne D. Decker*

Robert V. Johnson, II

Attorney General

Unemployment compensation -- exclusion of evidence regarding sexual harassment; misapplication of law regarding disqualification for unemployment benefits for misconduct
2002-0518 State of NH

Attorney General

v. Charles Carr*

Diane M. Nicolosi

Gregory W. Swope

Bail jumping – numerous issues including admission of district court bond; sufficiency of evidence; jury instructions; admission of clerk of court's opinion testimony that there is an implicit condition of release to appear at hearings; sufficiency of indictment; hearsay
2002-0519 State of NH

Attorney General

v. David C. Blackledge*

Appellate Defender

Soudabeh Tahmassebipour

Driving after certification as a habitual offender – whether division of motor vehicles can certify defendant as habitual offender for more than four years; failure to exclude evidence of defendant's flight from the police; erroneous jury instructions regarding flight from scene of incident
2002-0524 State of NH

Attorney General

v. Daniel Mason*

Appellate Defender

Caroline K. Hill

Jesse Friedman

Second degree assault, witness tampering, sexual assault – whether court erred in consolidating charges for trial; sufficiency of evidence; whether State opened the door to disclosure of DCYF records; denial of motion for discovery
2002-0525 In the Matter of Barbara Friedman and Dale Friedman*

Attorney General for Department of Health and Human Services

Robert A. Shaines for respondent

Modification of N.J. support order -- whether court erred by dismissing motion to modify N.J. support order registered in N.H.; equal protection and due process violations
2002-0526 Appeal of International Paper Box Machine Co.*

Jennifer Holmes

Attorney General

Wage claim - civil penalty; whether penalty appeal board acted unreasonably by assessing civil penalties for unintentional violations of RSA 275:43, I
2002-0528 Douglas Blackwell and Dawn Blackwell

Tony F. Soltani

v. James J. Fleming, Fleming Title Services, Inc., Stewart Title of Northern New England, Inc. and GMAC Mortgage Corporation*

Edwinna C. Vanderzanden

Steven A. Solomon for GMAC Mortgage Corp.

Default -- whether court erred by denying motion to strike default
2002-0533 Deanna Cross*

Steven A. Bolton

v. David Rhodes

Daniel E. Donovan, III

Landlord-tenant – security deposit; whether failure to provide receipt for security deposit and failure to inform plaintiff that any conditions in rental unit in need of repair should be noted on receipt or given in writing to landlord constituted one violation or two violations; whether court erred in calculating amount of attorney's fees
2002-0539 State of NH

Attorney General

v. Roger Paradis*

Appellate Defender

Kimberly A. Shoen

Burglary -- numerous issues including denial of view; evidentiary issues; improper closing argument by State; exclusion of evidence of general reliability of eyewitness testimony; sufficiency of evidence
2002-0540 Appeal of Belmar/PAG Limited Partnership*

David E. Lefevre for Belmar/PAG Limited Partnership

David R. Connell for City of Nashua

Attorney General

Property tax abatement -- whether board erred in ruling that assessment for tax year 1999 did not have to be used for subsequent years due to "adjustments in property strata" made by city for tax year 2000
2002-0541 Murray Marketing, Inc. d/b/a Murray Outdoor Communications, Inc.*

John F. Bisson

John G. Cronin

v. City of Nashua and Nashua Zoning Board of Adjustment

David R. Connell for City

Stephen M. Bennett for Zoning Board

Municipal regulation – variance; whether zoning administrator's interpretation that a sign is a "ground sign" was erroneous; whether zoning ordinance unconstitutionally bans all billboards
2002-0545 Petition of Moore Center Services, Inc. (Area Agency VII)*

Michael R. Chamberlain for Moore Center Services, Inc.

Sheila N. Zakre for William S.

Attorney General

Granite State Guardianship Services

Developmental disabilities -- whether department erred in ruling that William S. is developmentally disabled due to learning disability; failure to follow administrative rule He-M 503.03(E)



2002-0551 William McLaughlin, Individually and as Administrator of the Estate of Lauren McLaughlin and Debra DiStefano*

Vincent A. Wenners, Jr.

v. Commercial Union Insurance Co. and Christopher Sears

Doreen F. Connor for Commercial Union Ins. Co.

Christopher Sears, pro se

Liability insurance coverage -- whether court erred in granting summary judgment; whether injection of heroin into decedent by the insured, resulting in death, was an insured "accident" or "occurrence"; whether death "arose out of" the injection of heroin
2002-0552 Lone Pine Hunters' Club, Inc.

Andrew A. Prolman

v. Town of Hollis

William R. Drescher for Town

Bruce W. Felmly and

Jennifer L. Parent for intervenor residents*

Municipal regulation -- whether note signed by three members of ZBA was a valid decision; whether use of property as a fish and game club was pre-existing nonconforming use; whether hunter's club is required to apply for a special exception; sufficiency of evidence; whether issues were preserved for appeal
2002-0553 Leo A. Derosia*

Michael J. Sheehan

v. Warden, NH State Prison

Attorney General

Habeas corpus -- whether State proved two predicate theft offenses as required by RSA 637:11, II(b
2002-0557 Roberta Millwood

Robin C. Curtiss

v. Stephen Peck*

Ralph N. Suozzo

Negligence -- automobile accident; whether photographs of vehicles involved in accident were admissible; denial of motion to set aside or for remittitur
2002-0561 State of NH

Attorney General

v. Jeffrey West*

Sven D. Wiberg

Second degree assault, criminal threatening, simple assault -- exclusion of evidence relating to grant of immunity to witness; exclusion of evidence of inadequacy of investigation and of credibility of victim; limitation on cross-examination of victim regarding her misstatements of aspects of her prior record
2002-0562 Michael Fischer,* Under POA for Rabbi Bela Fischer

Kenneth M. Brown

v. Temple Beth Abraham

Ralph F. Holmes

Contracts -- whether court erred by failing to impose the implied covenant of good faith and fair dealing on the defendant's exercise of discretion within the contract; whether court erred by deciding ambiguous contract language in favor of the party moving for summary judgment
2002-0571 Franklin Lodge of Elks, #1280 BPO Elks*

Matthew J. Lahey

v. Sally Marcoux, Terry Bergeron-Hoyt, Renee LaBonte and Joann LaBonte

Christopher J. Seufert

Human rights -- discrimination; whether Lodge of Elks is a private club exempt from RSA 353-A:16-17; whether lodge is a place of public accommodation; whether purpose of RSA 354-A:16-17 is to prevent discrimination against lodge's membership; whether damages are limited to $1,500 in absence of provision for jury trial; sufficiency of evidence of damages
2002-0575 Delta and Delta Realty Trust

Jack S. White

v. City of Nashua*

James M. McNamee, Jr.

Property tax – abatement; failure of court to dismiss abatement appeal when taxpayer had provided no evidence to board of assessors regarding value of property; whether court erred by placing burden of proof on City; failure of court to provide specific rulings on requests for findings of fact and rulings of law
2002-0586 Gregory Harper, Adm'r. of the Estate of James R. Whitley, II

Kenneth C. Brown

v. Water Pik Technologies, Inc.

Andrew D. Dunn

Martha Van Oot

Heidi A. Bean

Debra M. Walsh

Michael R. Mortimer for Intervenor ACE USA

Workers' compensation -- whether, under RSA 281-A:13, workers' compensation carrier is entitled to lien on estate beneficiaries' recovery of wrongful death litigation proceeds; certified question from U.S. District Court
2002-0589 State of NH

Attorney General

v. Joseph J. Turmel*

F. Michael Keefe

Constitutional violations (4th and 5th amendments and state constitutional equivalents) arising from denial of motion to suppress -- whether court erred when investigatory stop was not supported by specific articulable facts, subsequent warrantless search was not product of consent, and defendant did not receive Miranda warnings before interrogation.
2002-0591 Maureen Bacon*

Barry C. Schuster

v. Town of Enfield

Barton L. Mayer

ZBA denial of variance - whether trial court erroneously upheld ZBA's denial of variance when evidence established that denial was arbitrary and violated equal protection
2002-0593 Appeal of Police Commission of the City of Rochester*

Daniel P. Schwarz for Police Commission

Peter C. Phillips for International Brotherhood of Police Officers, Local 580

Attorney General

PELRB, collective bargaining agreement construction, arbitration - did board apply correct CBA; did board comply with Administrative Procedures Act by promulgating rule on construction of CBA; did PELRB correctly find that commission had waived arbitrability issue and that issue was not ripe; was board's construction of CBA correct; did commission commit ULP by seeking review of arbitrator's award v. Town of Enfield

Barton L. Mayer

2002-0596 Appeal of Melanie R. Sawyer*

Shawn E. Nichols for Melanie R. Sawyer

James E. Owers for Liberty Mutual Ins. Co.

Attorney General

Workers' compensation - did CAB erroneously fail to rule on whether chiropractic and massage therapy bills are compensable or on whether claimant's disability stems from pain; whether CAB made sufficient findings of fact and rulings of law; whether CAB's decision was supported by evidence; whether claimant was entitled to rehearing before initial panel that decided claim



2002-0599 State of NH

Attorney General

v. Deborah Chapman*

Mark L. Sisti

Theft by unauthorized taking -- whether court erroneously excused

juror, failed to grant motion to dismiss, failed to grant motion for

directed verdict, and failed to answer jury question completely

2002-0603 State of NH

Attorney General

v. Michael D'Amour*

Appellate Defender

Katherine Cooper

Motion to suppress, motion to set aside verdict - did court erroneously fail to suppress evidence obtained in warrantless search of defendant's backpack; did court erroneously fail to set aside verdict because verdict was not supported by sufficient evidence that he was aware that his girlfriend's prescription pills were in his backpack
2002-0643 State of NH

Attorney General

v. Gregory Barka*

Appellate Defender

Soudabeh Tahmassebipour

Robert G. Whaland for St. Joseph Hospital

Aggravated driving while intoxicated -- whether patient-physician privilege yields where State cannot prove element of serious bodily injury without access to defendant's medical records; interlocutory appeal