Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted April 2003


02-00578 In re Guardianship of Jason Henderson*
Ms. Phyllis Henderson, pro se
Peter S. Wright, Jr.
for Jason Henderson
Guardianship -- whether ward was deprived of his right to counsel when his appointed counsel handled his defense to involuntary guardianship proceedings as if she were his guardian ad litem rather than as legal counsel bound to zealously defend his interests
03-0023 Appeal of Michael Rhodes*
John E. Durkin
Paul L. Salafia
Workers' compensation -- whether appeal to compensation appeals board was timely filed; whether compliance with 30-day statutory deadline for filing appeal under RSA 541:6 is necessary prerequisite to establishing jurisdiction in supreme court
03-0076 Rene R. Smagula* v. Town of Hooksett & a.
Ms. Nancy B. Winneg Barton L. Mayer
Protest petition on zoning amendment -- whether court erred in ruling protest petition invalid
03-0079 Estate of Joshua T.*, Dale and Patricia T. as the Administrators of the Estate of Joshua T., and as Next Friends
v. State of NH, Division of Children, Youth and Family Services & a.
Nancy S. Tierney Attorney General
Wrongful death -- whether expert is needed to determine if DCYF had a duty to remove juvenile from foster home; whether plaintiffs satisfied exceptions in McLaughlin v. Sullivan, 123 N.H. 335 (1983
03-0086 State of NH v. Richard Allen Smith*
Attorney General Mark L. Sisti
Aggravated felonious sexual assault -- denial of motion to suppress as untimely; denial of mistrial after prosecution informed jury that taped confession existed and questioned witness with respect to transcript of the confession where transcript of confession was inadmissible
03-0087 State of NH v. Raymond Cole*
Attorney General
Appellate Defender
Andrew Winters
Fabian Braithwaite
Second degree assault -- exclusion of evidence of indictment pending against witness; admission of prejudicial photographs; whether court erred by sentencing defendant to extended term of imprisonment
03-0091 In the Matter of Julie A. Foshay* and Gordon E. Cole
Doreen F. Connor for petitioner
Mr. Gordon E. Cole, pro se
Visitation -- whether court erred by allowing expanded visitation with minor children
03-0093 In the Matter of Robert Jacobson* and Kathleen Tierney
Michael E. Gould for petitioner
Ms. Kathleen Tierney (now Bryan), pro se
Post-divorce proceedings -- numerous issues including reinstatement of award of child support; whether respondent had legal standing to pursue award of child support for adult daughter; whether adult child is not emancipated because of disability
03-0096 State of NH v. Otis Daniels*
Attorney General
Appellate Defender
Jaye Rancourt
Felonious sexual assault -- denial of funds for expert in eyewitness identification; failure to suppress out-of-court identification; failing to allow defendant to impeach victims; denial of mistrial after State disclosed that State witness made a false statement prior to trial; failure to strike said witness's testimony
03-0098 Cindy M. Cote* v. Roger Fournier and Susan M. Fournier
John G. Richardson Hamilton R. Krans, Jr.
Real estate -- specific performance; whether unsigned purchase and sale agreement may be used to construe subsequent contract; reliance upon financing contingency in an unenforceable contract; whether inability to perform for a few days beyond closing date absent clause making time of the essence renders contract unenforceable
03-0099 Michael Porter v. City of Manchester* and Susan Lafond*
Jon H. Meyer James G. Walker, for Lafond
Robert J. Meagher, for City
Wrongful termination -- whether court erred in directing verdict against city on respondent superior claim; whether constructive discharge action against city was barred by Workers' Compensation Law; whether plaintiff should have been allowed to maintain claim for emotional distress; whether open-ended claim for future lost wages should have been submitted to the jury; whether plaintiff should have been allowed to request punitive damages; whether defendant Lafond was entitled to qualified immunity; whether plaintiff's right to speak was outweighed by injury caused to defendants by his unprotected public statements regarding defendant Lafond; failure to properly disclose opinions of expert; cross-appeal --whether court erred in dismissing claim for intentional infliction of emotional distress; whether plaintiff's "press release" was protected by First Amendment; exclusion of evidence that public policy concerns raised by plaintiff were incorporated into policies and procedures of the next Welfare Commissioner
03-0100 Cheryl Kerr v. John Miller* and Donna Miller
Michael J. Scott David M. Groff
Misrepresentation, breach of contract -- sale of home; admission of hearsay evidence of damages; whether expert testimony was necessary to award damages for repairs to allegedly failed septic system; application of doctrine of res ipsa loquitor
03-0101 In the Matter of Susan C. (Coyne) Barrett and John T. Coyne*
Ronald G. Sutherland for petitioner
Elizabeth A. Donovan for respondent
Post-divorce proceedings -- whether court erred by ordering respondent to contribute towards private school tuition when child was entitled to attend public school; consideration of respondent's current wife's income
03-0106 In the Matter of Gary F. Haller* and Dawn Mills
Mr. Gary F. Haller, pro se
Denise F. Shore
for respondent
Child support -- whether petitioner, who has been determined not to be child's father, may recover child support paid to State prior to determination
03-0109 David Dillman v. New Hampshire College*
Robert K. Mekeel Edward A. Haffer
Breach of employment agreement -- failure to grant directed verdict to defendant based on foreword to handbook that states that the handbook "shall not be considered a contract of employment"
03-0111 Laurie Auen v. Kenneth Auen*
James J. Tenn, Jr. Joshua L. Gordon
Domestic violence -- whether court erred by refusing to return weapons to defendant after expiration of domestic violence order
03-0112 Appeal of Linda J. Brown*
Leslie H. Johnson for claimant
Eric G. Falkenham for Sunbridge Care & Rehabilitation
Workers' compensation -- numerous issues including whether board substituted its opinion for that of medical experts; application of improper standard of causation; whether evidence supports board's conclusion that carpal tunnel syndrome was not causally related to claimant's work
03-0114 Appeal of Fred Fuller Oil Co., Inc.*
Diane M. Gorrow for Barry S. Leonard, Sr.
Simon C. Leeming for Fred Fuller Oil Co., Inc.
Whistleblower's Protection Act -- numerous issues including award of excessive amount of back pay; failure of board to consider spoliation of evidence; whether claimant reasonably mitigated his damages
03-0116 State of NH v. James H. Mansfield*
Attorney General David I. Bailinson
Driving after suspension -- motion to vacate plea; denial of motion without holding a hearing
03-0121 Ernest M. Cherry, Jr. and Carole A. Cherry v. Town of Hampton Falls* and Hampton Falls Planning Board
Raymond P. Blanchard Lawrence M. Edelman
Municipal regulation -- subdivision; numerous issues including failure of court to presume that zoning ordinances are presumptively valid; whether wetlands destruction would be de minimis; whether proposed roadway was essential to productive use of applicants' land outside of the wetlands; whether there is a feasible alternative location for the road
03-0122 Appeal of Ann Miles Builder, Inc.*
Gregory D. Robbins for claimant
Paul B. Kleinman for Ann Miles Builder, Inc.
Lisa-Dawn Bollinger for Ann Miles Builder, Inc.
Workers' compensation -- whether board erred by shifting burden of persuasion and holding that the claimant is an employee
03-0124 State of NH v. Garry Quimby*
Attorney General
Appellate Defender
Paul Halvorsen
Aggravated felonious sexual assault -- sufficiency of evidence
03-0126 Sherwood Forest Mobile Homes, Inc.* v. James W. Reardon and Donita C. Reardon
Edgar D. McKean III David C. Engel
Landlord-tenant -- mobile home park eviction; whether failure to pay "rental surcharge" constitutes grounds for eviction; whether landlord must specifically identify that its eviction action is based on commercial component of rent; whether court erred by assessing civil penalty and attorney's fees against landlord
03-0132 In the Matter of Jesper Gronvaldt* and Claudia Gronvaldt
Patrick J. Devine for petitioner
William E. Boc for respondent
Divorce -- numerous issues including whether court erred in awarding divorce on fault grounds; whether expert testimony was required for finding of emotional abuse and distress; failure to give written reasons for property division; failure to give reasons to support alimony award
03-0133 State of NH v. Kenneth Gowen*
Attorney General
Robert A. Zubkus
Driving while intoxicated, operating after suspension, felon in possession of a weapon -- whether stop of motor vehicle was supported by reasonable articulable suspicion
03-0142 State of NH v. Thomas P. Cossette*
Attorney General
Appellate Defender
Donald Ekberg
Aggravated felonious sexual assault -- numerous issues including grant of motion to consolidate; denial of discovery; failure of State to disclose exculpatory evidence; sufficiency of evidence; admission of hearsay; denial of mistrial; double jeopardy; denial of motion for new trial; exclusion of evidence at sentencing hearing
03-0144 In the Matter of Rita A. Flanders and Stephen Richard Flanders*
Michael Bedard for petitioner
Paul F. Coddington, Jr. for respondent
Divorce -- whether court should have heard testimony on post-trial motion; whether property division was equitable
03-0150 Appeal of Edward Fay, III*
John G. Vanacore for claimant
John B. Schulte for Peerless Insurance Company
Workers' compensation -- consideration by board of issues not raised before department of labor; whether board's rulings are contrary to law and the evidence; whether board unlawfully rendered its own medical opinion
03-0152 State of NH v. David Reno*
Attorney General
Christopher M. Johnson
Donna J. Brown
Driving while intoxicated – denial of motion to suppress evidence of the motor vehicle stop
03-0153 Appeal of Stephen V. Weaver, Jr.*
Christopher A. Bandazian for claimant
Nicole D. Spaur for Land Rover of Scarborough, ME
Workers' compensation -- whether claim was barred by "injuries outside of the state" statute where injury occurred in New Hampshire but claimant received workers' compensation benefits from Maine
03-0154 Cassandra Hawkins v. NH Department of Health and Human Services*
Kay E. Drought Attorney General
Right-to-Know Law -- numerous issues including whether court erred in ordering department to produce redacted Medicaid recipients' dental claims forms; whether Medicaid claims are public records; whether confidential information is segregable; whether court erred by limiting costs that can be recovered for producing documents; whether court can require department to provide copies while appeal is pending
03-0162 State of NH v. Robert W. Nelson*
Attorney General
Timothy E. Bush
Receiving stolen property -- whether taking photographs from tenant's apartment, scanning them into computer, then returning originals constitutes offense of receiving stolen property
03-0164 Peerless Insurance and Red Oak Property Management, Inc. v. Vermont Mutual Insurance Company* and Guumeez-Hill Trust
Todd N. Hathaway Gregory M. Eaton for Vermont Mutual Insurance Co.
Gary M. Burt for Guumeez-Hill Trust
Commercial general liability insurance, indemnification -- whether Vermont Mutual policy provided sole primary insurance coverage; whether Peerless should be required to contribute equally to the cost of defending underlying action
03-0166 In the Matter of Jonnalagadda Sasidhar* and Lakshmi Congeevaram
Margaret R. Crabb for petitioner
R. David DePuy for petitioner
Robert M. Shepard for respondent
Post-divorce proceedings -- whether court erred in ordering retroactive recalculation of child support; whether court may sua sponte recalculate child support; parol evidence rule
03-0169 In the Matter of Kathy L. Wolfson and Alan C. Wolfson*
William E. Aivalikles for petitioner
Robert M. Shepard for respondent
Post-divorce proceedings -- whether post-divorce alimony award was based on unforeseen substantial change in circumstances; whether respondent has ability to pay alimony
03-0172 Prospect Farm-Lancaster, LLC* v. Nicolas Davidge
James Q. Shirley Daniel C. Finbury
Partition of realty -- whether court erred by imposing sealed bidding process upon the parties; failure to value property at fair market value; failure to properly weight factors in RSA 547-C:29; sufficiency of evidence
03-0175 Appeal of Franklin Falls Hydroelectric Corp.*
R. Peter Shapiro for Franklin Falls Hydroelectric Corp.
Mark Bennett for Department of Revenue Administration
Attorney General
Board of tax and land appeals -- whether appeal was timely filed; whether board erred by failing to exercise discretion under RSA 80:55, I(b) to accept appeal as timely filed
03-0176 Mark Poland and Georgette Poland v. Paul Twomey* & a.
Charles E. Dibble Andrew D. Dunn
Kevin G. Collimore
Legal malpractice -- whether court erred in finding that jury was not free to reject plaintiff's liability expert's opinion; whether court erred in granting plaintiff a new trial given plaintiff's failure to proffer expert testimony supporting legal causation
03-0177 General Linen Services, Inc. v. Franconia Investment Associates, LP* & a.
Mark D. Hanlon Charles A. Szypszak
Breach of contract -- whether contract clause for linen services allowed termination if an on-premises laundry was installed; whether liquidated damages clause was enforceable
03-0178 State of NH v. Alfred Hogan*
Attorney General
Thomas N. Morgan
Reckless operation -- whether reckless operation is a lesser-included offense of driving while intoxicated
03-0183 In re Juvenile 2003-0183
Case is confidential under RSA chapter 170-C
03-0187 In re Juvenile 2003-0187
Case is confidential per court order
03-0188 State of NH v. Mark A. Nott*
Attorney General
Tim A. Clark
Probation violation -- denial of discovery request for gun to be fingerprinted; sufficiency of evidence of defendant's control of weapon