Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted September 2003


03-0249 State of NH v. Lewis Clark*
Attorney General Appellate Defender
Paul J. Bennett
Nashua District Court
Simple assault, domestic violence -- failure of court to release bail after defendant pleaded guilty and received a deferred sentence
03-0321 Alfred Carbone v. Nancy S. Tierney, Esquire*
Charles E. Dibble Russell F. Hilliard
David P. Slawsky
Merrimack County Superior Court
Legal malpractice -- whether court erred in finding attorney to have been negligent as a matter of law; failure of plaintiff to mitigate damages; sufficiency of evidence of damages; shifting of burden of proof; failure to reduce verdict to account for contingent fee plaintiff would have paid; cross-appeal -- failure to apply Massachusetts interest statute; exclusion of evidence concerning room and board benefit to which plaintiff was entitled; whether subsequent order of trial court is null and void due to jurisdiction having transferred to supreme court; whether plaintiff plead or proved interest as an element of damages
03-0431 Remington Investments, Inc. v. William H. Forbes, Jr., Gary A. Howard* & a.
Marc W. McDonald Mark P. Cornell
Hillsborough County Superior Court – North
Attachment -- whether court erred by extending term of attachment; effect of bankruptcy discharge
03-0432 State of NH v. Francis Kepple*
Attorney General
Duncan J. MacCallum
Rockingham County Superior Court
Aggravated felonious sexual assault, endangering the welfare of a child, criminal solicitation -- numerous issues including constitutionality of NH wiretapping and eavesdropping statute; whether State violated statutory procedure in RSA 570-A:8; failure to record grand jury proceedings; limitation on cross-examination of victim; failure to unseal confidential records; limits on closing argument
03-0451 190 Elm Street Realty, LLC v. Hanna Camery Beaudoin*
Richard J. Joyal Jon H. Levenstein
Manchester District Court
Landlord-tenant -- eviction; whether option in lease to extend rental term was unenforceable; statute of frauds; whether notice to quit was sufficient
03-0453 State of NH v. Denis A. Kennedy*
Attorney General Appellate Defender
Chris McLaughlin
Cheshire County Superior Court
Aggravated felonious sexual assault, felonious sexual assault -- numerous issues including denial of requested voir dire questions; failure to exclude picture of victim when she was 11 years old and evidence of defendant's statements to victim regarding disclosure of the alleged conduct; denial of motions for mistrial; sufficiency of evidence
03-0454 White Cliffs at Dover v. Elaine Bulman*
Daniel P. Schwarz Ronald K. Lospennato
Dover District Court
Landlord-tenant -- eviction; whether rebuttable presumption of retaliation applies; whether landlord retaliated against tenant by bringing eviction proceedings; whether landlord made reasonable efforts to accommodate tenant under Fair Housing Act
03-0455 State of NH v. Lee E. Carpenter*
Attorney General
Robert A. Zubkus
Strafford County Superior Court
Aggravated felonious sexual assault -- limiting cross examination of victim; exclusion of evidence of victim's disruptive behavior and of victim's mother's initial disbelief of victim's account of sexual abuse
03-0459 State of NH v. Bonnie Bleau*
Attorney General
Paul J. Garrity
Cheshire County Superior Court
Theft -- misuse of power of attorney; sufficiency of evidence
03-0474 Appeal of David Curtis*
Harold O. Beede
Attorney General

NH Department of Safety
Registration as sex offender -- whether department of safety erred in determining which NH crime is most analogous to Massachusetts crime of which petitioner was convicted
03-0476 State of NH v. Steven A. Smalley*
Attorney General
Appellate Defender
Joseph C. Malfitani
Rockingham County Superior Court
Possession of crack cocaine -- denial of motion to suppress; denial of right to speedy trial; denial of motion for mistrial
03-0479 Appeal of Shaw's Supermarkets*
Leslie H. Johnson for Robert E. Carr
Eric P. Bernard for Shaw’s Supermarkets
NH Compensation Appeals Board
Workers' compensation -- whether claimant had a work capacity; whether pre-existing medical problems were more disabling than work-related injury; failure to place claimant on diminished earning capacity rate; failure to apply Appeal of Hiscoe, 147 N.H. 223 (2001), analysis; cross-appeal -- whether claimant's low back condition was causally related to work; whether board erred by discounting opinions of claimant's treating medical professionals
03-0480 Stone Edge Design, Inc. v. Kathleen Thomas, Trustee* & a.
Robert M. Shepard Kenneth A. Cossingham
Salem District Court
Breach of contract, negligence -- installation of pool decking; whether evidence supports award of damages; whether new trial should be held on damages
03-0484 Town of Merrimack and Betty J. Spence v. David W. McCray
Charles G. Douglas, III
Edmund J. Boutin

Norman Carr,*intervenor
Steven A. Bolton
Morgan A. Hollis
David M. Gottesman
Hillsborough County Superior Court – South
Injunction -- whether court erred by closing case when intervenor did not agree to docket markings; denial of motion to clarify
03-0485 GGP Steeplegate, Inc.* v. City of Concord
Anthony M. Ambriano Paul F. Cavanaugh
Merrimack County Superior Court
Property tax abatement -- numerous issues including whether court erred by dismissing case for failure to state with specificity in abatement application the reasons for the abatement; sufficiency of evidence
03-0491 Raymond Nicol and Michele Fitzgerald v. Town of Newton*
Thomas J. Donovan
Rachel A. Hampe
Robert M. Derosier
Charles F. Tucker
William G. Scott
Rockingham County Superior Court
Nuisance -- numerous issues including whether nuisance based on use of trail by motorized vehicles was permanent nuisance; failure to mitigage damages; whether jury verdict was based on sympathy; failure to remit damages; whether defendant is immune from liability by statute; cross-appeal -- whether town owns abandoned railroad bed in fee simple
03-0493 Michael Bocca* & a. v. City of Portsmouth & a.
Thomas M. Keane Robert P. Sullivan

Raymond A. Ramsey, intervenor
Charles A. Griffin
Rockingham County Superior Court
Municipal regulation -- variance; failure of superior court to apply hardship test as defined in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001)
03-0503 State of NH* v. Michael B. Brobst
Stephen Fuller
Susan P. McGinnis
Appellate Defender
J. Lizette Richards
Hillsborough County Superior Court – South
Harassment -- whether RSA 644:4, I(a) is unconstitutionally overbroad
03-0507 Gail Devoid,* Trustee Page Pond Trust v. Town of Boscawen
K. William Clauson James F. Raymond
Merrimack County Superior Court
Municipal regulation -- special exception, cluster subdivision; numerous issues including whether special exception was erroneously granted; failure of applicant to address water problems on site; whether submitted plat satisfies plat requirements of zoning ordinance; whether evidence supports findings; whether zoning board on remand wrongly believed it would be held in contempt if it did not approve intervenors' plat
03-0508 State of NH v. Michael J. Smith*
Attorney General
Richard J. Lehmann
Erland McLetchie
Northern Carroll County District Court
DWI -- denial of motion to suppress evidence obtained subsequent to arrest, where police officer lacked jurisdiction to stop defendant; sufficiency of the evidence
03-0509 Appeal of Town of Seabrook*
Robert D. Ciandella for Town of Seabrook
Robert M. Derosier for Town of Seabrook
Michael C. Reynolds for Seabrook Employees Association
Attorney General
NH Public Employee Labor Relations Board
Public employee labor relations -- whether board erred by ordering town to hold grievance reviews for all backlogged cases during business hours; whether union committed unfair labor practice by attempting to force town to arbitrate time when selectmen would meet to hear grievances
03-0510 Barbara M. Hodgkins* v. J. Herio Almonor
Daniel C. Finbury Dennis T. Ducharme
Salem District Court
Negligence -- whether plaintiff is entitled to voluntary nonsuit of district court action in order to refile her action in superior court, where it would not be subject to district court's $25,000 jurisdictional limit; interlocutory appeal from ruling
03-0512 State of NH v. Joseph E. King*
Attorney General
Peter D. Anderson
George T. Campbell, III
Cheshire County Superior Court
Aggravated felonious sexual assault -- sufficiency of evidence; failure of court after in camera review to order disclosure of investigating officer's personnel files
03-0514 In the Matter of Denise Angley-Cook and John W. Cook*
Katherine B. Stearns for petitioner
Catherine A. Feeney for respondent
Sullivan County Superior Court
Post-divorce proceedings -- child support; whether court has authority to consider social security retirement dependent benefits in determining child support; failure to adjust child support by a credit against social security paid to obligee on behalf of child resulting from obligor's retirement
03-0521 Kerri Martin* & a. v. Continental Insurance Company & a.
Jeffrey B. Osburn
Gordon A. Rehnborg Jr.
Mary A. Dempsey
Andrew A. Prolman
Rockingham County Superior Court
Commercial general liability insurance coverage -- whether court erred in concluding that Cornelius Donnelly was not an employee of the insured
03-0525 In re Juvenile 2003-0525
Case is confidential under RSA chapter 169-B
03-0531 In the Matter of Dianne H. Whitney* and Michael J. Whitney
Arthur W. Perkins for petitioner
Larry S. Kane for respondent
Merrimack County Superior Court
Post-divorce proceedings -- numerous issues including failure to consider purpose of Texas Adoption Subsidy Agreement in setting child support amount; failure to deviate from support guidelines
03-0533 James D. Pedersen v. Marcia A. Brook*
Theodore H. Parent Michael P. Bentley
Cheshire County Probate Court
Partition of realty -- failure of probate court to consider legal import of warranty deed transferring title to premises to the parties jointly; estoppel by deed; whether parties were joint tenants, each owning an undivided half interest; whether court deprived defendant of benefit of a completed gift made to her