Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted June 2003


02-0409 State of NH v. David Fischer*
Attorney General Appellate Defender
Sven D. Wiberg
Motion for new trial -- ineffective assistance of counsel; sufficiency of evidence; admission of prior bad acts and inadmissible character evidence
03-0007 Catherine Mercado v. Daniel Mitchell*
Catherine Mercado, pro se
Mr. Daniel Mitchell, pro se
Domestic violence -- sufficiency of evidence
03-0120 State of NH v. Bruce Woods*
Attorney General Appellate Defender
James M. Carroll
Simple assault -- sufficiency of the evidence
03-0156 In the Matter of Brian Cummings* and Karen Cummings
Brian Cummings, pro se
Michael E. Gould
Divorce -- numerous issues including consideration of issues that were not identified previously as contested; admission of real estate appraisal; allowing expert to testify who had not been identified in pre-trial conference order; denial of continuance to address late-filed GAL report; whether evidence supports factual findings; whether property division was fair and equitable
03-0160 In the Matter of Michael A. Costa and Karen T. Costa*
Debra G. Zuk
Karen T. Costa, pro se
Post-divorce proceedings -- numerous issues including denial of respondent's request to relocate; failure to apply standards set forth in RSA 458:23-a; whether court erred in awarding custody of child to a person convicted of sexually abusing children; whether witness was qualified to testify as an expert; failure to address child support issues; failure to find petitioner in contempt
03-0161 Appeal of Paul J. Robinson*
Paul Robinson, pro se
George J. Foster and Company, Inc. d/b/a Foster’s Daily Democrat
Unemployment benefits – whether employer had obligation to accommodate employee’s loss of license by approving use of hired driver
03-0194 In the Matter of Stephen B. MacKinnon* and Paula R. MacKinnon
Joshua L. Gordon for petitioner
Cynthia M. Weston for respondent
Post-divorce proceedings -- whether court erred by ordering petitioner to pay college costs; whether petitioner was in contempt
03-0218 Victor H. Lushear, Individually and obo Aaron Lushear v. Katherine Christopher*
Victor H. Lushear, pro se
David C. Wing
Domestic violence -- whether minor child residing with defendant is protected by domestic violence statute; sufficiency of the evidence
03-0219 Nancy Regis v. Great American Insurance Company*
Gregory D. Robbins
James R. Fox
Andrew D. Dunn
Naomi L. Mooney
Automobile insurance coverage -- whether policy's definition of "insured motor vehicle" violated RSA 264:15, I; whether uninsured motorist provisions were ambiguous; whether finding of coverage was contrary to intent of the parties; whether prior order on motions for summary judgment should be reinstated
03-0236 MariAnne Gutbier v. Hannaford Brothers Co.* d/b/a Hooksett Shop 'N Save
Daniel N. Duckett
Michael R. Mortimer
Petition for discovery -- whether court exceeded its authority to invade privacy of defendant; whether plaintiff can conduct pre-suit discovery when plaintiff already has a plain, adequate and complete remedy at law
03-0238 Alfred L. Arcidi, Jr.* v. Town of Rye
E. Tupper Kinder Michael L. Donovan
Inverse condemnation -- whether grant to town of pumping station easement created a subdivision of land entitling town to use appurtenant easement over plaintiff's property; whether town can convert private easement to a public use without paying compensation; damages; attorney's fees; cross-appeal -- whether easement and right-of-way includes right to install water service line; attorney's fees
03-0242 State of NH v. Laurent L. L'Heureux*
Attorney General
Michael J. Iacopino
Driving while intoxicated -- whether defense of competing harms was available to defendant; whether court shifted burden of proof to defendant; sufficiency of evidence
03-0243 Jeremy M. Fall
Nikola G. Stanciu
Kristen Neves
Russell Kennett*
Russell Kennett
Russell Kennett
Jeremy M. Fall, pro se
Nikola G. Stanciu, pro se
Kristen Neves, pro se
Thomas E. Dewhurst, III
Glenn A. Perlow
Paul W. Mullen
Stalking -- numerous issues including whether respondent's actions constitute stalking; sufficiency of evidence; whether court erred by barring respondent from entering his own real estate, thereby preventing him from fulfilling his duties as landlord
03-0244 In the Matter of Ann-Marie Tracy and James Roger Gagnon*
David C. Wing for petitioner
James B. Hobbs for respondent
Post-divorce proceedings -- failure to follow child support guidelines; whether court erred by ordering respondent to pay petitioner monthly payments for marital debt; whether court disguised alimony as child support
03-0245 Sherry Swain* v. Employers Mutual Casualty Co.
Mark D. Morrissette Debra L. Mayotte
Uninsured motorist coverage -- whether RSA 264:15, I, provides that a person who qualifies as an insured for liability coverage also qualifies as an insured for uninsured motorist coverage; whether insurance policy is ambiguous
03-0248 In re Juvenile 2003-0248
Case is confidential under RSA chapter 169-B
03-0251 Matthew G. Alden* v. Atlas Advanced Pyrotechnics & a.
David W. Jordan James G. Walker
Products liability -- defective fireworks; whether court erred by determining credibility of plaintiff and witness without permitting either to testify; whether plaintiff had duty to produce for deposition a non-party; exclusion of testimony of eyewitness
03-0254 State of NH v. Lawrence Sleeper*
Attorney General Appellate Defender
Christine Haydinger
Caroline Smith
Aggravated felonious sexual assault, felonious sexual assault -- denial of motion to quash four pattern indictments; denial of motion to sever; failure to reconvene jury in light of jury foreman's comments; failure to disclose documents reviewed by court in camera to defendant
03-0255 Appeal of John Thyng*
Michael C. Reynolds for SEA-NH
Attorney General
Public employment -- termination; whether termination of classified State employee violated due process, or was unreasonable or unlawful
03-0263 State of NH v. Kurt R. Carpentino*
Attorney General Appellate Defender
Dawn E. Caradonna
Aggravated felonious sexual assault, simple assault -- denial of mistrial; comments by prosecutor in closing argument upon defendant's failure to testify and to present evidence; comments by prosecutor vouching for witnesses' credibility
03-0264 Stateline Steel Erectors, Inc.* v. William Shields & a.
Todd N. Hathaway
James C. Wheat
Michael B. O'Shaughnessy
Russell F. Hilliard
Negligent provision of insurance services -- grant of summary judgment to defendant where plaintiff's exposure to excess judgment is a recoverable damage; whether defendants can avoid liability by claiming benefit of plaintiff's agreement to assign its claims in exchange for covenant not to sue; failure to apply rule in Dumas v. State Farm, 111 N.H. 43 (1971)
03-0266 David Anderson v. Paula Smith*
James M. Cassidy Edward C. Mosca
Foreclosure -- breach of fiduciary duties; award of attorney's fees; failure to set aside verdict on account of presence of disqualified juror in jury room; due process; limiting defendant's attorney from assisting defendant during new trial; limiting future trial testimony; cross-appeal -- whether court had authority to sua sponte set aside jury verdict absent request for such relief and absent facts demonstrating verdict was against weight of evidence or result of jury partiality
03-0268 State of NH v. Barry Gallant*
Attorney General
Philip N. Desfosses
Conspiracy to sell controlled drug -- whether court erred by requiring defendant to decide whether to accept mistrial before deciding if mistrial would be with prejudice; sufficiency of evidence; after giving Wentworth instruction in preliminary instructions, failure to repeat it during final jury instructions
03-0271 New England Homes, Inc.* v. R.J. Guarnaccia
J. Kirk Trombley Michael E. Chubrich
Wage claim -- when commissions on sales of modular homes were earned; whether commission was owed under terms of letter of understanding; whether court erred by automatically awarding liquidated damages
03-0272 New England Homes, Inc.* v. George Cooley
J. Kirk Trombley Michael E. Chubrich
Wage claim -- when commissions on sales of modular homes were earned; whether court erred by automatically awarding liquidated damages; failure of court to consider evidence of volume-based discounts
03-0273 State of NH* v. Stephen Merriam
Attorney General Gabriel N. Nizetic
Simple assault, criminal mischief -- whether warrantless arrest can only be made in the jurisdiction where the crime occurred by the police department in that jurisdiction
03-0282 Rosemary (Ogren) Trenholm v. Larss Ogren*
Rosemary Trenholm, pro se
David A. Horan
Stalking -- sufficiency of evidence
03-0284 State of NH v. Edward Hannon*
Attorney General
Appellate Defender
Timothy Landry
Scott Rankin
Aggravated felonious sexual assault, attempted aggravated felonious sexual assault -- denial of bill of particulars; failure to quash indictments charging defendant with patterns of sexual assault; double jeopardy; sufficiency of evidence of victim's age
03-0285 Sugar River Mills Association v. Meredith Geary*
Todd C. Fahey Bennett B. Mortell
Landlord-tenant -- eviction; whether federal regulations and HUD handbook required landlord to conduct interim recertification of tenant's income when she reported she was not receiving child support; whether landlord demanded greater amount of rent than was owed
03-0290 Sanborn Regional School District v. The Budget Committee of the Sanborn Regional School District*
Diane M. Gorrow Sumner F. Kalman
Thea S. V
Municipal government -- whether vacancy on cooperative school district budget committee established after 1993 pursuant to RSA 32:14 is filled by chairman of school board or by budget committee
03-0301 State of NH v. Alex Brenes*
Attorney General Appellate Defender
Peter D. Anderson
Felonious sexual assault -- where defendant did not appear for sentencing following 1991 conviction until 2003, whether destruction of record of trial deprived defendant of right to meaningful appeal; sufficiency of evidence
03-0303 City of Manchester School District & a. v. City of Manchester*
Dean B. Eggert Thomas I. Arnold, III
Municipal government -- whether city could merge school district corporation into the municipal corporation and establish school district as a city department by charter amendment pursuant to RSA chapter 49-B
03-0306 State of NH v. Carl Graf,* aka Karl H. Graf
Attorney General Michael J. Sheehan
Aggravated felonious sexual assault -- sentence; whether court violated defendant's constitutional rights by extending the call forward period of defendant's suspended sentences beyond the time period stated in the original sentences
03-0307 State of NH v. Shirley Ann Stern*
Attorney General
Stephen T. Jeffco
Negligent homicide, aggravated driving while intoxicated -- denial of motion to suppress blood tests; whether court violated due process on May 2 by increasing sentence imposed on April 14
03-0314 State of NH v. Dwayne Hearns*
Attorney General
Appellate Defender
Lee E. Topham
Tracy Scavarelli
Aggravated felonious sexual assault -- numerous issues including grant of order compelling defendant to produce blood and saliva; denial of motion to suppress; failure to quash indictments; evidentiary issues; prosecutorial misconduct during closing argument; refusal to give requested jury instruction defining "household"
03-0316 Stephen S. Oliva v. Vermont Mutual Insurance Company* and Mavrone Alt
Richard C. Follender Gary M. Burt
Ralph N. Suozzo
Homeowner's insurance policy -- whether person was "in the care" of insured where there was no familial relationship and the person was a 20-year-old adult who cared for himself
03-0324 State of NH v. Anthony DiMatteo*
Attorney General
Appellate Defender
Janice S. Peterson
Possession of heroin -- whether stop of vehicle by police was supported by reasonable articulable suspicion; whether scope of stop involving lack of inspection sticker exceeded legal authority
03-0337 North Country Environmental Services, Inc.* v. Town of Bethlehem & a.
Bryan K. Gould
Robert A. Olson
Brenda N. Keith
Edmund J. Boutin
Declaratory relief, site plan, zoning ordinance -- numerous issues including whether RSA chapter 149-M and RSA chapter 125-C preempt municipality from regulating waste disposal facility; whether North Country Environmental Services v. Town of Bethlehem, 146 N.H. 348 (2001), precluded town from litigating issues; whether ordinance regulating landfills falls outside zoning enabling act or impermissibly infringes constitutional rights; application of height ordinance; attorney's fees; cross-appeal -- whether town may regulate and prohibit landfill gas utilization facility under its zoning ordinance
03-0389 Petition of Hillsborough County*
Carolyn M. Kirby for Hillsborough County
Barry S. Weinstein for Jeffrey Dale
Writ of prohibition -- whether district court has authority to order county to transport prisoner daily to private healthcare facility and order government to pay for methadone treatments