Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted September 2002

02-0287 State of NH v. Chad Evans*
Attorney General
Appellate Defender
Mark L. Sisti
Alan J. Cronheim
Second degree murder, second degree assault, simple assault, endangering welfare of a child -- admission of excited utterances; improper jury instruction that jury could consider false statements by defendant as evidence of consciousness of guilt; sufficiency of evidence
02-0349 Appeal of Louis Cote*
Christopher E. Grant, for claimant
Andrew A. Merrill, for James River Corporation
Workers' compensation -- whether board erroneously rejected only legally competent evidence of permanent impairment
02-0363 Appeal of Town of Durham*
J. Joseph McKittrick, for Town
John S. Krupski, for union
Public employees -- unfair labor practices; whether probationary employee is covered by collective bargaining agreement; consideration of extrinsic evidence of parties' intent
02-0422 State of NH v. Eugene Menard*
Attorney General David M. Rothstein
Possession of controlled drug -- whether affidavit provided probable cause for search of defendant's mother's home; whether search and seizure was reasonable
02-0434 Lee James Enterprises, Inc. v. Town of Northumberland*
R. James Steiner Timothy Bates
Tax sale -- proceeds of sale by town to third party; whether the ruling in Thomas Tool Services v. Town of Croydon, 145 N.H. 218 (2000), is limited to parties in that case and to any similar cases pending as of the date of that decision
02-0436 William McNeir Richmond*
Environmental Showcase, Ltd.*
Andrew Hutchinson
Andrew Hutchinson
William M. Richmond, pro se Bryan W. Clickner
Wage claim -- whether employer had "financial ability to pay"; whether employer acted willfully
02-0441 State of NH v. Ray Hannon*
Attorney General Appellate Defender
Theodore Lothstein
Joseph Welsh
Aggravated felonious sexual assault -- sufficiency of evidence of penetration; whether court erred by considering prior bad acts at sentencing where the evidence was insufficient to establish the prior bad acts
02-0443 Kay's Realty, Inc. v. Town of Hudson*
J. Bradford Westgate Stephen C. Buckley
Municipal regulation -- whether planning board decision to apply growth management ordinance to condominium project was unreasonable; allowing expert to testify to subject not disclosed in expert witness disclosure; cross-appeal - whether RSA 676:12, V exempts landowner who has filed complete application for site plan approval from proposed amendments to zoning ordinance when new notice of public hearing is required on substantive changes to amendments that were proposed after site plan application was complete and acceptable
02-0444 In the Matter of State of NH ex rel Valerie Dutcher* and David Jones
Diane M. Puckhaber, for petitioner
Attorney General
David Jones, pro se
Child support -- whether RSA 168-A:1 applies to adult children; whether unwed parent has same financial obligations to child as married parent; failure to order parent to contribute to child's college educational expenses
02-0445 State of NH v. John W. Goss*
Attorney General George H. Ostler
Possession of marijuana -- failure to suppress result of search where affidavit contained evidence derived from two prior warrantless entries and searches of defendant's garbage located upon his property
02-0448 Appeal of the Town of Newington, NH*
Robert Upton, II, for Town
Michael D. Ramsdell, for Newington Energy, LLC and Hawkeye Funding Limited Partnership
Attorney General
Property tax exemption -- failure of agency to commence adjudicative proceeding or hold hearing; failure to allow town to present evidence; grant of permanent exemption for costs of temporary "construction practices" associated with construction of non-exempt generators
02-0453 Diana Wolters v. American Republic Insurance Company*
Andrew D. Dunn Elizabeth Cazden
John P. Shea
Health insurance – subrogation; whether equitable right of reimbursement exists for health insurance carrier from subscriber who recovers compensation from tortfeasor causing medical expenses; whether health insurance carriers are by law the primary obligor for payment of medical expenses
02-0455 Sherryland, Inc.* v. Regina Snuffer
Charles A. Russell Elaine L. Baillargeon
Landlord-tenant -- eviction; denial of motion to recuse; res judicata; whether notice to quit was vague and failed to comply with RSA 205-A:5; whether subsequent notice to quit acted as an election of remedies and a waiver of rights under first notice to quit
02-0456 Donald P. Chisholm, Jr. v. Ultima Nashua Industrial Corporation* & a.
Meredith P. Cook Eleanor H. Maclellan
Contract -- employment benefits; whether document was enforceable employment agreement; whether defendant willfully and without good cause violated a known contract obligation, thereby triggering liquidated damages; whether court erred in doubling the jury verdict after initiating its own jury inquiry
02-0457 Mark Grenier d/b/a Royalty Automotive Services* v. Barclay Square Commercial Condominium Owners' Association & a.
Robert E. Ducharme Sanford N. Roberts
Condominium -- illegal towing of vehicles parked in common area; failure to award attorney's fees; whether respondents acted unreasonably or in bad faith; whether condominium association, which illegally towed vehicles, should have been ordered to pay towing and storage costs for the vehicles; cross-appeal -- whether court misconstrued condominium document language applying to designated parking spaces; whether court misconstrued condominium parking rule regarding remedies available to condominium association; attorney's fees
02-0468 State of NH v. Andrew P. Lorton*
Attorney General Anthony F. DiPadova , Jr.
Driving while intoxicated -- sufficiency of evidence of intoxication
02-0469 June Balke & a. v. City of Manchester*
Jed Z. Callen Daniel D. Muller, Jr.
Municipal water supply -- whether city violated RSA 485:14 when it fluoridated its water system
02-0470 Town of Ossipee* v. Whittier Lifts Trust & a.
Richard D. Sager Donald C. Crandlemire
Arthur W. Hoover
Attorney General
Property tax abatement -- whether landowner has taxable interest in State-owned communications tower affixed to the land; whether assessment of real property for tax purposes can be based on its highest and best use as a site for a communications tower when tower is State-owned; whether landowner is "using or occupying" State-owned communications tower; whether tower is realty; co-appeal -- whether Whittier Communications has taxable interest in tower; whether court prematurely decided State's obligations under agreement; whether court misconstrued agreement; collateral estoppel
02-0473 In the Matter of Raymond K. Ellis* and Susan Ellis
Keri J. Marshall, for petitioner
John A. Macoul, for respondent
Divorce -- failure to consider wife's pension in property division; unequal distribution of property; failure to remove husband from mortgage after awarding marital home to wife; ordering child support when children are emancipated and not minors; failure to specify what college costs husband is required to pay
02-0474 State of NH v. Ruben Gonzalez*
Attorney General Appellate Defender
James Quay
Soudabeh Tahnmassebipour
Aggravated felonious sexual assault, felonious sexual assault, sexual assault -- allowing lay witness to testify about commonness of recantations in sexual assault cases; admission of evidence of prior bad acts; due process and right to confront witnesses
02-0476 State of NH v. Craig Davidson*
Attorney General Paul J. Haley
Sentence amendment - whether eligibility waiting period in RSA 651:20 applies separately to consecutive sentences; failure to apply rule of lenity; judicial estoppel; ex post facto laws
02-0479 Appeal of James Beeler*
Andru H. Volinsky, for petitioner
Andrea K. Johnstone, for Cheshire County
Emily Rice, for Cheshire County Personnel Committee
Public employment – termination; denial of request for recusal; reliance by personnel commission on grounds for termination that were not detailed in a statement of grounds and reasons signed by a majority of the county commissioners
02-0481 William Berliner v. Craig Clukay d/b/a Treeline Timber*
Gregory S. Clayton Edwinna C. Vanderzanden
Negligent timber trespass – admission of irrelevant testimony of plaintiff's emotional reaction to timber cut; improper jury instructions; sufficiency of evidence; whether damages awarded were excessive; exclusion of mitigating evidence
02-0482 Gina Zola* v. Marjorie Kelley
Paul A. Rinden Carol L. Hess
Negligence – motor vehicle accident; whether plaintiff was comparatively negligent; admission of plaintiff's prior drug conviction; whether plaintiff waived objection to admission of prior conviction
02-0483 Route 12 Books & Video* & a. v. Town of Troy
Keri J. Marshall
Francis X. Quinn, Jr.
Silas N. Little, III
Municipal regulation -- site plan; whether appeal of planning board decision was untimely; whether letter from planning board constituted a "decision"; whether town failed to follow its own procedure for revision and resubmission of applications
02-0484 State of NH v. Steven Summa*
Attorney General John A. Wolkowski
Sale of controlled drug, conspiracy to sell controlled drugs, felonious use of firearm -- sufficiency of evidence; whether actions before jury raising safety concerns regarding guns and ammunition marked as evidence had prejudicial effect on defendant
02-0489 State of NH v. Stephen Plouffe*
Attorney General
Appellate Defender
Alfred Farese
Aggravated felonious sexual assault, prohibited computer pornography – admission of prior bad acts; exclusion of evidence of "coaching" of the alleged victims; sufficiency of the evidence
02-0496 In the Matter of Linda A. Plaisted and Grahame J. Plaisted*
Michael L. Laws, for petitioner
Barry I. Harkaway, for respondent
Child support modification -- whether court erred by considering assets in addition to income in determining amount of child support; whether court erred by ordering that child support continue whether or not the respondent is receiving unemployment benefits; whether court erred by modifying award of dependency deduction for child
02-0499 In re Guardianship of Georgia Robison Beale*
Thomas A. Rappa, Jr., for guardians
Thomas H. Trunzo, Jr., for ward
Guardianship -- whether ward has a right to counsel after imposition of a guardianship when a guardian ad litem has been appointed; if ward has right to counsel, what is role of attorney; interlocutory transfer without ruling; whether guardian's fees and hourly rate were unreasonable; whether Rolfe standard for fiduciary compensation applies to guardian where ward has not requested guardian's services and earlier had had a falling out with the guardian
02-0501 Maynard & Paquette Engineering Associates, L.L.C. v. Collette Mall*
Richard A. Maynard, pro se Peter N. Larose
Land surveying contract -- whether court erred in awarding damages absent written contract or mutual understanding of the terms of any contract
02-0502 Hayden Babb* and Laurette Babb v. Benjamin Clark
Matthew B. Cox
Paul R. Cox
Dennis T. Ducharme
Negligence -- motor vehicle accident; where defendant's negligence is one cause of injury, does plaintiff have burden to prove quantity of injury caused by defendant's negligence
02-0538 Bayson Properties, Inc.* & a. v. City of Lebanon
William B. Pribis
David W. Rayment
H. Bernard Waugh, Jr.
Barry C. Schuster
, for intervenor A.D. McKibbin
Municipal regulation -- planning board decision; numerous issues including application of RSA 677:6 review standard to planning board decision; whether issue of bias was preserved for review; whether plaintiffs satisfied site plan regulations; failure of board to provide assistance to applicants; whether plaintiffs are entitled to "builder's remedy"

** Docket no. 2002-0448 is consolidated with 2002-0335.

Docket no. 2002-0455 is consolidated with 2002-0420.