New Hampshire Supreme Court
Cases Accepted - December 1999
* denotes appealing parties
99-138 Wibbelt,* William v. Turner, Rita
Kevin M. Fitzgerald Mark Wiseman
Breach of contract, infliction of emotional distress -
whether evidence sufficient to establish infliction of
emotional distress and to support award of enhanced
compensatory damages; whether evidence compelled
finding that defendant breached partnership agreement
99-140 In the Matter of Andrew M. Hunt and Beatrice M. Hunt*
Gordon R. Blakeney, Jr.
R. David DePuy
John Shyavitz, GAL
Post-divorce proceedings - child custody; whether
defendant must prove change in circumstances to seek
modification of legal custody
99-423 In the Matter of Robert P.
William A. Whitten, for the father*
Timothy Wells, for the mother
Attorney General
Child abuse and neglect - where two parents are not
living together and court makes a finding of neglect
against only one parent, may court deny physical
placement of child with other parent
99-472 State of NH* v. Cooper, Lon
Attorney General James E. Duggan
Donna Brown
Aggravated felonious sexual assault - suspended
sentence; whether violation of "good behavior"
condition on suspended sentence requires that defendant
engage in criminal conduct before court can impose the
suspended sentence
99-513 Riverview Gardens, LLC v. City of Nashua, Vickerry
Malcolm McNeill Realty Co.*
James M. McNamee, Jr.
Dean B. Eggert
Municipal regulation - whether zoning ordinance
prohibits withdrawal of land from planned business
development (PBD); whether modification of PBD is
limited to uses allowed by special exception; whether
land may be withdrawn from PBD only if proposed use on
withdrawn land meets criteria for special exception;
whether court erred in vacating site plan approval;
whether rule in Fisher v. Dover, 120 N.H. 187 (1980),
precluding resubmission of previously denied variance
application, should be extended to preclude
resubmission of application for special exception
99-553 State of NH v. Hartley,* Terrence
Attorney General James E. Duggan
Robert Bennett
Aggravated felonious sexual assault - sufficiency of
evidence
99-582 State of NH v. Lefebvre,* Edmour
Attorney General James E. Duggan
Theodore Lothstein
Criminal threatening, simple assault, witness tampering
- numerous issues including whether witness was
competent to testify; whether witness was unavailable
to testify; denial of right of confrontation; exclusion
of testimony of defense witness; admission of prior
consistent statements; admission of hearsay; denial of
mistrial; sufficiency of evidence
99-584 State of NH v. Lefebvre,* Edmour
Attorney General James E. Duggan
Theodore Lothstein
Criminal threatening, criminal mischief, resisting
arrest, attempted escape, witness tampering - prior bad
acts; whether witness was competent to testify;
allowing witness to testify that she read defendant's
lips; sufficiency of evidence; admission of
prejudicial, nonprobative evidence regarding shotgun
found in defendant's apartment
99-587 Fannie Mae (Federal v. Kamasinski,* Theodore
National Mortgage pro se
Association)
Stephen J. Laurent
Landlord-tenant appeal - eviction; whether new notice
to quit was required where tenancy at will was
contractually created during pendency of eviction
action; whether court erred by granting facsimile of
non-filed motion to continue; grant of motion to
continue that failed to state any good cause for
continuance
99-592 Morse,* William, v. Goduti, Richard A.
Administrator of the E. Tupper Kinder
Estate of Samuel T. Morse
Charles G. Douglas, III
Negligence, premises liability - whether artificial
unfenced pond with precipitous side slopes posed an
open and obvious danger such that it extinguished
defendant's duty of reasonable care to ten-year-old
child
99-619 Scheffel,* Lorie, Lorie v. Krueger, Kyle, Kyle
Scheffel, mother and Krueger
next friend of Cory C. Irrevocable Trust,
William E. Aivalikles Trustee Defendant
Kyle Krueger, pro se
William Shaheen
Peggy A. Rossing
Attorney General
Spendthrift trust - attachment; whether spendthrift
provision is enforceable against tort victim of a crime
committed by trust beneficiary; whether trust qualifies
as a spendthrift trust; whether enforcement of
spendthrift provision in favor of criminal violates
public policy; whether trust should be terminated due
to incarceration of beneficiary
99-622 State of NH v. Veilleux,* Michael D.
Attorney General James E. Duggan
Thomas A. Ficarra
Felon in possession of a weapon, simple assault,
resisting arrest - failure to dismiss for lack of
prosecution; denial of mistrial after incorrect
indictment read to jury; sufficiency of evidence
99-623 State of NH v. Nickerson,* Dale
Attorney General James B. Hobbs
Driving while intoxicated - whether State can
adminstratively suspend license for refusing blood test
and then admit results of hospital blood test at
criminal trial; whether RSA 329:26 authorizes State to
use results of hospital blood test after defendant
declines a blood test; denial of due process and right
to second blood sample
99-624 Bank of New Hampshire, v. Shirkoff, Walter,
Trustee* and Maureen Shirkoff,
Michael E. Chubrich guardians, trustees and
next friends of Daniel W.
Hartshorn and Katie E.
Hartshorn, and Benjamin
M. Hartshorn III
Mary Keohan Ganz
Benjamin M. Hartshorn
III, pro se
Testamentary spendthrift trust - whether superior court
has jurisdiction over trust to enforce a Massachusetts
divorce judgment substituting beneficiaries; whether
default decree is voidable because of defective service
of process; whether trustee's request for declaratory
relief on issue of retroactive enforcement of RSA
564:23 and RSA 498:9 constitute waiver of right to
reopen default decree
99-630 Arcand, Mary-Brigid v. Savchick,* Michael
pro se pro se
Stalking - telephone calls; sufficiency of evidence;
whether facts found constitute stalking as a matter of
law
99-634 State of NH v. Brewster,* Michael A.
Attorney General James E. Duggan
Andrew R. Schulman
Harassment - whether target of threatening telephone
call may testify about the impact the offense had on
her life; whether target of call may testify about
substance of call and its impact on her when she was
not a party to call; admission of prior bad acts
99-638 Bouwens,* Kenneth, v. Hanover Insurance
administrator of the Company,
estate of Harleigh B. Travelers Insurance
Bouwens Company
David J. KillKelley Andrew D. Dunn
Melinda S. Gehris
Underinsured motorist coverage - whether policy
provision is ambiguous; whether $300,000 per occurrence
limit is subject to $100,000 per person limit
99-639 State of NH v. Bruce,* David
Attorney General Bernard J. Robertson
Criminal mischief - whether criminal mischief statute
is unconstitutionally vague; whether indictment alleges
a crime; delay in notifying defendant of loss of crime
scene photographs; denial of competing harms defense;
whether court erred in allowing jury to consider lesser
included offenses; double jeopardy; whether
resentencing provision in sentence violates due process
or equal protection; unconstitutional delays in
resolving legal claims
99-644 State of NH,* Appeal of
(public employee labor relations board)
Attorney General
Thomas Hardiman, for State Employees Assoc. of NH
Unfair labor practice - public employees; whether prior
individual arbitration awards regarding bonus leave and
floating holidays for employees on unpaid leave
established binding "law of the contract"; whether
readoption of N.H. Admin. Rule Per 1205.02 governing
unpaid leave violated RSA 273-A:5; sufficiency of
evidence; failure to make adequate factual findings
99-645 In the Matter of Robert P. Dolan* and Cathy L.
Dolan
John A. Macoul
Penny S. Dean
Post-divorce proceedings - numerous issues including
whether gains from exercise and sale of post-divorce
stock options are income for child support purposes;
failure to properly consider cost of exercising options
and resulting taxes; whether court erred by entering
speculative and unlimited order for potential
additional child support
99-647 State of NH v. Pehowic,* Edward B.
Attorney General James E. Duggan
David Rothstein
Barbara Keshen
First degree murder - numerous issues including whether
defendant was in custody when he made statements;
whether statements were made voluntarily; limiting
examination into cooperation agreement made by State's
witness; failure of trial judge to recuse himself;
whether court erred in allowing jury to consider
accomplice liability; refusal to compel additional DNA
testing
99-648 State of NH v. Walton,* Robert
Attorney General Paul Twomey
Robin Dionne
Aggravated felonious sexual assault - ineffective
assistance of counsel (failure to move to dismiss on
basis of insufficient evidence)
99-658 Sugar River Mills v. Hamilton,* Laura
Todd C. Fahey Patricia Wallace
Landlord-tenant - eviction; whether plaintiff created
new tenancy by accepting payment on rental arrearage
without providing prior written notice that it would
proceed with the eviction despite acceptance; whether
plaintiff created new tenancy by accepting rent for
period of time after termination of previous tenancy
99-660 Gekas,* John, Appeal of
(compensation appeals board)
James S. Townsend
Eric Falkenham
Attorney General
Workers' compensation - numerous issues including
whether board erred in terminating weekly disability
benefits absent evidence of material change in earning
capacity; whether claimant is no longer totally
disabled; failure to rule on requests for findings of
fact and rulings of law; whether board erred by
allowing medical expert to testify by telephone
99-661 Brouillette, Carolyn, v. Sherwood Forest
Dorinda M. Janvrin Mobile Homes, Inc.,*
Gerald Zerfas, Christine Michael G. Britton
E. Sharp, Jacqueline A. Edgar D. McKean, III
Murphy, Daniel J. McNeil,
Jr., Thomas and Doris
Murphy, Alvan and Phyllis
Baker, Joan L. Bilich f/k/a
Joan B. Elmore, Jean M. Robbins,
Vera E. Ebinger, Shirley A.
Gustin, June A. Sawyer, Marilyn
E. Powell, Elizabeth M. Fisher,
Phyllis Theriault, Jane
Cunningham
Elliott Berry
Mobile home park entrance fee - whether entrance fee
violates RSA 205-A:1
99-662 Rodgers Development v. Town of Tilton, Market
Company* Basket
Paul C. Bordeau Daniel D. Crean
Walter L. Mitchell, for Michael J. Donahue
intervenor Infinity
Sherwood Properties, LLC*
Layout of highway - whether court erred by deferring to
town's decision to lay out highway; whether court
improperly balanced public need against public burden;
whether court permitted unconstitutional taking of
private property for road layout; whether public need
requirement is met by existence of public benefit;
whether court erred in finding "occasion" for laying
out public road; whether selectmen may interject their
opinion on site plan issues for that of planning board
99-663 In re Jeffrey C.*
James E. Duggan
Diana G. Bolander
Attorney General
First degree assault, criminal threatening, reckless
conduct - whether juvenile who has not been certified
as an adult and who has not waived jury trial right can
be incarcerated in house of corrections; whether RSA
169-B:19 violates State and Federal Constitutions;
whether juvenile has right to jury trial
99-669 Sullivan,* Lynn F., v. Monadnock Title Services,
Individually and as she Inc.
is Executrix of the Michael R. Callahan
Estate of George M.
Sullivan
Irvin D. Gordon
Pension benefits - whether court erred in granting
motion to dismiss filed on Friday preceding scheduled
Monday jury trial; whether writ stated actionable claim
99-670 Portsmouth Police Commission,* Appeal of
(public employee labor relations board)
Thomas J. Flygare
Peter C. Phillips
Robert P. Sullivan
Attorney General
Municipal employees - arbitrator's award of pay
increases for private work details; whether board erred
by enforcing arbitrator's award to fund a cost item
never approved by city council; whether police
commission refused to bargain in good faith; whether
commission breached contract by failing to implement
arbitrator's award; whether city is bound by fact
finder's report; award of interest
99-674 Gears,* Deborah, Appeal of
(compensation appeals board)
Francis X. Quinn, Jr.
Benjamin T. King
James E. Owers
Attorney General
Workers' compensation - whether permanent impairment
award should be based on average weekly wage at time of
injury; whether RSA 281-A:15 changes determining wage
where claimant changes employers between date of injury
and date of disclosure of permanency
99-678 Bonardi,* Nicholas v. Kazmirchuk, Donna
Gary L. Casinghino Clifford R. Kinghorn, Jr.
Prescriptive easement - whether defendant's use of
property was permissive; whether defendant's use of
property was continuous and uninterrupted for twenty
years
99-679 State of NH v. Fuller,* Frederick
Attorney General Gabriel Nizetic
Criminal threatening - numerous issues including
whether victim's written statement was properly
admitted as prior consistent statement; sufficiency of
evidence; identification of defendant; jury instruction
as to purpose to terrorize
99-680 State of NH v. Dugas,* Peter
Attorney General Ray Raimo
Arson - sufficiency of evidence; admission of
defendant's statement where entire statement was not
provided to defendant prior to trial; limitation of
cross-examination of State witness; whether court erred
by providing jury with transcripts and audiotape of
defendant's statements to police, videotape, audiotape
player, and videotape player
99-693 Lower Village v. City of Claremont*
Hydroelectric Associates, John J. Yazinski
Limited Partnership
Timothy E. Britain
Taxation of small power production facilities - whether
contract existed between parties; whether 1997
amendment to RSA 72:8 violates Part I, article 23 of NH
Constitution and Article I, section 10 of US
Constitution
99-694 State of NH v. Harnum,* Eric
Attorney General Jean-Claude Sakellarios
Driving while intoxicated, stop sign violations -
whether court has authority to suspend driver's license
for failure to stop at stop sign; excessive sentence
99-697 Seaco Insurance Co.* v. Peerless Insurance Co.
Robert G. Whaland Andrew D. Dunn
Homeowner's insurance coverage - whether insurer
defending person under a reservation of rights has
standing to bring declaratory judgment action against
another insurer who may be obligated to defend and
indemnify the same insured
99-701 State of NH v. Seavey,* Heidi Lee
Attorney General Robert J. Moses
Driving while intoxicated, conduct after an accident -
whether exigent circumstances justified warrantless
search; whether defendant entitled to advisements prior
to administration of field sobriety tests; whether
officer had probable cause to arrest; whether sentence
was consistent with statutory requirements; whether
court erred by imposing jail sentence when box for
class B misdemeanor on complaint was checked off
99-707 Belknap County Commissioners,* Appeal of
(public employee labor relations board)
Bradley F. Kidder
Michael Reynolds
Attorney General
Public employees - unfair labor practice; whether
grievance was arbitrable; whether parties submitted
issue of arbitrability to arbitrator
99-718 Germain,* Brian, Appeal of
(compensation appeals board)
Joseph J. Weglowski
James O'Sullivan
Attorney General
Workers' compensation - whether claimant was totally
disabled; whether motor vehicle accident was
superceding, intervening cause of worsened back
condition; lack of expert medical opinion to support
board's findings
99-726 Whitworth,* Nancy L. v. Manchester Housing &
John P. Fagan Redevelopment Authority
Jared R. Green James W. Craig
Negligence - landlord liability; whether court erred in
slip and fall case by allowing defendant to argue
comparative fault and by giving comparative fault jury
instruction; admission of medical testimony that
plaintiff's pre-existing medical condition could have
caused her to fall; denial of judgment notwithstanding
the verdict
Note: The court has consolidated 99-648 with 99-102.