Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted October 2003


03-0518 Heidi L. Krol v. Kathleen M. Heiberg*
Heidi Krol, pro se S. W. Dahar II
Family Division at Derry
Domestic violence -- whether mother and adult daughter who do not reside at same residence are "household members"; sufficiency of evidence that respondent posed a credible threat to petitioner; whether court erred by awarding use of a house to petitioner in which she has no ownership interest
03-0519 Rymes Heating Oils, Inc.* v. Commissioner, NH Department of Safety
Edward A. Haffer Attorney General
Merrimack County Superior Court
Road tolls -- whether the term "special fuel" as used in RSA 260:38, VI, applies to home heating oil
03-0529 State of NH v. Ronald Martin*
Attorney General
Mark L. Sisti
Belknap Superior Court
Aggravated felonious sexual assault -- motion to vacate sentence; whether court erred by applying statute of limitations that was expanded by the legislature after commission of the crimes; due process
03-0538 Appeal of Timothy Heinz*
Mark D. Wiseman for claimant
James E. Owers for New Hampshire Hospital
NH Compensation Appeals Board
Workers' compensation -- whether board erred by adopting opinion of doctor who performed records review rather than opinion of treating physician and other physicians; whether insurer is estopped from denying payment for medical bills; denial by board of opportunity for claimant to present photographs and print-out of prescription medicines
03-0539 Edward Jenks & a. v. Scott Nichols* & a.
R. Peter Decato Barry C. Schuster
Grafton Superior Court
Boundary dispute -- whether court erred in granting summary judgment
03-0540 In the Matter of Francis B. Rives* and Susan Rives
Patrick T. Hayes for petitioner
Susan Rives, pro se
Family Division at Lebanon
Divorce -- whether court had jurisdiction to order division of Nevada corporation
03-0544 State of NH v. Deborah Moore*
Attorney General Appellate Defender
James T. Brooks
Grafton Superior Court
Possession of controlled drug -- denial of motion to suppress; whether police had reasonable, articulable suspicion to justify expansion of scope of motor vehicle stop; whether police were justified in requesting defendant to exit truck; whether defendant was detained longer than necessary
03-0547 Appeal of City of Portsmouth*
Thomas M. Closson for City of Portsmouth
Mark Bennett for Department of Revenue Administration
NH Board Of Tax and Land Appeals
Equalized valuation of property -- whether board erred by upholding department of revenue administration's determination that $1.2 million received by city from Pease Development Authority should be treated as a payment in lieu of taxes
03-0548 State of NH v. Carl A. Merk*
Attorney General Richard N. Foley
Rockingham Superior Court
Reckless conduct -- denial of right to argue defense theory of competing harms; exclusion of statements made by victim to defendant concerning accident; sufficiency of evidence
03-0549 In the Matter of Nancy Henry and Kevin Henry*
Janina N. Stodolski for petitioner
Christopher W. Kelly for respondent
Family Division at Derry
Divorce -- failure to follow Hodgins formula in awarding pension; whether court erred by considering fault as reason for unequal distribution of property after issuing no-fault divorce decree; erroneous division of equity in home; failure to respond to requested rulings of law
03-0551 In re Will and Estate of Anna Mae Frisbee
Michael J. Bolduc for George E. Frisbee*
Carl Dunton, pro se
Eugene Dunton, pro se
Barbara Brock, pro se
Judith Keck, pro se
Pearl E. Smith, pro se
Rockingham Probate Court
Probate estate -- anti-lapse statute; whether court erred in holding that RSA 551:12 applies; whether express language in codicil of will is sufficient to avoid application of anti-lapse statute
03-0553 State of NH v. Mark Mariano*
Attorney General Appellate Defender
Barbara Keshen
Belknap Superior Court
Criminal threatening -- whether court amended indictment and lessened State's burden of proof by court's response to jury question
03-0554 Richard H. Pelletier* v. City of Manchester
David E. LeFevre Daniel D. Muller, Jr.
Northern District of Hillsborough County
Municipal regulation -- whether motion for rehearing filed with zoning board of adjustment was untimely
03-0555 State of NH v. Jason J. Porter*
Attorney General Appellate Defender
Alexander E. Roth
Cheshire Superior Court
Driving after certification as a habitual offender -- whether court erred by determining that information in police officer's confidential personnel files was not exculpatory; allowing State to reopen its case to introduce videotape into evidence
03-0558 Bessie Cuming* & a. v. Governor, State of NH & a.
Amy B. Messer
Ronald K. Lospennato
Attorney General
Northern District of Hillsborough County
Services for developmentally disabled -- denial of voluntary nonsuit without prejudice; whether court erred in ordering nonsuit with prejudice
03-0563 State of NH v. Benjamin Tyrance*
Attorney General Kent M. Barker
Marta E. Rodriguez
Southern District of Hillsborough County
Robbery, conspiracy to commit robbery -- sufficiency of evidence
03-0564 Charles Tiberghein & a. v. B.R. Jones Roofing Company*
Paul R. Cox Robert D. Ciandella
Robert M. Derosier
Strafford Superior Court
Arbitration -- failure of trial court to correct arbitrator's decision; failure of arbitrator to apply legal rule in Russell v. Arthur Whitcomb, Inc., 100 N.H. 171 (1956); whether plaintiff had right to recover in both contract and negligence; failure to order remittitur
03-0576 Town of Lyndeborough* v. Boisvert Properties, LLC & a.
William R. Drescher Robert M. Shepard
Northern District of Hillsborough County
Municipal regulation - whether RSA chapter 215-A preempts local land use controls; whether RSA chapter 215-A permits municipality to require site plan approval; whether finding that RSA chapter 215-A provides for public input when trail system is to be located on public property but not when on private property violates equal protection and due process protections of state and federal constitutions and state constitutional provision barring unfunded mandates; whether trial court's finding that site plan compliance was an unreasonable burden was supported by the evidence
03-0577 State of NH v. Dean H. Garland*
Attorney General Appellate Defender
Howard A. Clayman
Belknap Superior Court
Aggravated felonious sexual assault - sufficiency of the evidence; whether trial court erred in denying defendant's motions for discovery depositions; whether trial court erred in denying admission of evidence concerning victim's birth father's criminal record and in failing to require State to obtain and provide to defendant copies of police reports related to birth father's criminal activity; whether trial court erred by refusing to allow defense counsel access to DCYF records containing statements related to current offense
03-0580 In the Matter of Harold Arabian* and Denise Arabian
Thomas K. MacMillan for petitioner
Joseph L. Hamilton for respondent
Family Division at Brentwood
Divorce -- whether court had authority to order petitioner to contribute to the miscellaneous expenses of the child; requiring petitioner to contribute to after school day care and private educational expenses
03-0581 State of NH v. Christopher J. McBrian*
Attorney General Andrew K. Wilson
Milford District Court
Driving while intoxicated -- whether court erred by imposing deferred sentence as a consecutive sentence despite fact that original sentencing order did not indicate that any deferred sentence would be consecutive
03-0585 Duryco, LLC d/b/a Paul Davis Restoration of Central New Hampshire v. Denis Cloutier*
Donald C. Crandlemire Jean-Claude N. Sakellarios
Northern District of Hillsborough County
Non-competition agreement -- whether agreement was overly broad; whether court erred in determining amount of damages; whether court modified provisions of non-competition agreement; whether plaintiff failed to prove any legitimate proprietary interest or entitlement in the clients of defendant; sufficiency of evidence
03-0586 State of NH v. Annaliese Goodwin*
Attorney General Eric R. Wilson
Jaffrey/Peterborough District Court
Attempted driving while intoxicated -- whether defendant can be convicted of attempted driving while intoxicated when she was charged with aggravated driving while intoxicated per se; whether driving under the influence is a lesser-included offense of driving while intoxicated per se
03-0589 Appeal of New Hampshire Fireworks, Inc.*
Douglas J. Miller
Frank P. Spinella, Jr.
Attorney General
NH Department of Safety Bureau of Hearings
Fireworks license -- suspension; numerous issues including inadequate notice of charges; sufficiency of evidence; whether RSA 160-B:6, VII applies only to sales to NH residents; unconstitutional burden on interstate commerce; entrapment; whether commissioner has power to suspend a license beyond its expiration date
03-0592 A&B Lumber Company, Inc. v. Paul E. Vrusho,* Individually and d/b/a Johnson's Restaurant and Dairy Bar
Christopher H.M. Carter Mark F. Sullivan
Merrimack County Superior Court
Collection action -- whether court erred by assessing costs against defendant's counsel
03-0593 Kimberly Cochran v. Harold Bennett*
Thomas A. Fredenburg Frederick E. Upshall, Jr.
Concord District Court
Landlord-tenant -- collateral estoppel
03-0594 State of NH v. Bradley MacInnes*
Attorney General R. Peter Decato
Grafton Superior Court
Criminal threatening -- failure to permit impeachment of witness with prior convictions; failure to direct verdict for defendant; whether court erred by instructing jury prior to closing arguments; failure to grant mistrial after jury declared it was deadlocked; failure to correct prosecutor's erroneous closing argument
03-0641 New Hampshire Motor Transport Association v. State of NH & a.
Daniel P. Luker
Michael Kaplan
Attorney General
Merrimack County Superior Court
Expenditure of state funds -- whether State Constitution prohibits expenditure of highway funds on some or all components of the Nashua Commuter Rail Project; whether funds collected pursuant to NH Constitution part II, article 6-a may be spent on public transit projects; interlocutory transfer without ruling