New Hampshire Supreme Court
Cases Accepted - March 1999
* denotes appealing parties
98-314 Rattee, Debra v. Rattee,* Steven
Robert E. Bowers David J. Braiterman
Divorce - failure to depart from child support
guidelines; improper calculation of defendant's income;
failure to make retroactive adjustment for child
support; whether court effectively penalized defendant
twice for his high income by adding portion of income
to value of business as an asset while not adjusting
income when calculating child support under support
guidelines; cross-appeal - failure of court to use fair
value of business in dividing parties' assets; whether
court erred in deducting $79,144 from value of parties'
interest in business for debt for which defendant
offered no evidence or explanation
98-525 Affordable Computer v. Douglas, Caroline George*
Tech., Inc. pro se
Catherine A. Cheney, pro se
Small claims - whether court must remove small claims
action to regular docket upon request; whether court
erred by denying request to remove small claims action;
whether procedure that does not result in removal of
small claims is unconstitutional
98-533 Truehart,* Michael B. v. Old Republic Insurance
Robert K. MeKeel Company
Robert S. Carey
Uninsured motorist coverage - choice of law; whether
Vermont law governs question of insurance policy
coverage; whether policyholder validly directed
different monetary limits for uninsured motorist
coverage pursuant to 23 Vt. Stat. Ann. 941(c)
98-623 Merchants Rent-A-Car* v. Arbella Protection Ins.
James B. Kazan Co.
Robert E. Dunn, Jr.
Automobile insurance - whether a non-owned rented cube
van qualifies as a "non-owned auto" under the policy
98-664 Asselin,* Susan, Appeal of
(compensation appeals board)
James F. Lafrance
John E. Vinson
Attorney General
Workers' compensation - causation; whether offensive
sexual behavior at work was cause of claimant's
physical and mental stress injuries; whether claimant's
activities with sexually offensive co-worker were
consensual; whether claimant's activities rose to level
of serious and willful misconduct
98-684 City of Manchester, New Hampshire,* Appeal of
(public employee labor relations board)
Daniel D. Muller, Jr., for City of Manchester
James C. Anderson, for AFSCME
Attorney General
Bargaining unit modification - whether parks utility
supervisor and recreation utility supervisor were
persons exercising supervisory authority involving the
significant exercise of discretion; sufficiency of
evidence; whether hearing officer erred by denying City
opportunity to present evidence regarding matters that
hearing officer later referred to in her findings and
decision
98-699 City of Berlin v. County of Coos*
Robert Upton II David D. King
Charles W. Grau Jonathan S. Frizzell
County tax assessment - whether city's failure to
appeal its equalized property valuation bars it from
equitable relief; whether county's tax assessments were
disproportionate in violation of State Constitution;
whether court order prohibiting county from collecting
unpaid county taxes was abuse of discretion;
consideration of non-record facts
98-772 Fassi, Charles, Jodie v. Auto Wholesalers of
Fassi Hooksett, John Kelly
pro se pro se
Breach of warranty - failure to allow defendant to
testify; whether repair items were covered by warranty
on used vehicle
98-773 State of NH v. Lavallee,* Randy
Attorney General James E. Duggan
Paul Garrity
Brian O'Connor
Aggravated felonious sexual assault, felonious sexual
assault - denial of motion to dismiss where State
withheld exculpatory evidence; sufficiency of evidence;
ineffective assistance of counsel
98-782 Gallentine, Darlene v. Geis,* Frank J. d/b/a
Steven M. Latici Architectural Inspections
Edward D. Philpot, Jr.
Breach of contract - home inspection; whether court
erred by allowing plaintiff a post-trial hearing to
produce evidence of damages that were unsupported at
trial
98-786 Pope, David v. Little Boar's Head
John A. Bell District,* Town of
North Hampton
Charles F. Tucker
Municipal regulation - special exception; whether court
erred in finding that defendant applied zoning
ordinance in discriminatory manner; failure to rule on
special exception per se; cross-appeal - whether court
erred in fashioning remedy for discriminatory
application of zoning ordinance; whether zoning
ordinance illegally restricts property owners from
intensifying a nonconforming use
98-797 Przekaza, Genevieve v. General Accident Ins.
Joseph F. McDowell III Company of Canada*
Cynthia L. Fallon
Automobile liability insurance - whether nonparty to
insurance contract has standing to assert ambiguity in
contract; whether contract is ambiguous as to number of
vehicles covered
98-814 MacDonald,* Ian v. Bishop, David
Robin C. Curtiss Lawrence Smith
Medical malpractice - whether court erred by precluding
two witnesses from testifying to statements plaintiff
made about the condition of his tongue
98-828 Kinetic Systems, Inc.* v. The McClier Corporation,
Thomas J. Pappas Celltech Biologics, Inc.,
Glenn H. Haese Pease Development
Authority, State of NH
Attorney General
Richard V. Wiebusch
Thomas Donovan
Breach of contract, quantum meruit - whether court
erred in ruling after a hearing on motions not
scheduled for that hearing; failure to make findings of
fact and rulings of law; whether plaintiff alleged
sufficient facts to state a claim
99-005 In the matter of Sandra Cereola (Johnson)* and Darren
Johnson
Elizabeth Cazden
Carolyn S. Garvey
Post-divorce proceedings - whether plaintiff has
constitutional right to relocate with children to
Virginia where plaintiff's current husband is employed;
whether plaintiff showed that proposed relocation was
for a legitimate purpose; denial of motion to modify
visitation schedule; right to travel
99-006 Bursey,* Faith R. v. Baxter, Peter J., President
Dorothy F. Silver CFX Bank
Michael P. Bentley
Negligence, conversion - whether defendant acted in
good faith and in accordance with reasonable commercial
practices in accepting checks for deposit with missing
endorsements and placing funds in joint account, in
guaranteeing missing endorsements of co-payee where co-
payee was not a bank customer and did not authorize the
transaction, and in depositing checks in joint account
where account was established without authority of one
of the co-owners of the account; cross-appeal -
retrospective application of RSA 382-A:3-420; whether
bank converted checks that were returned unpaid;
failure of court to apply federal regulations governing
electronic transfer of funds; excessive damage award
99-007 State of NH v. Etienne,* Dickens
Attorney General James E. Duggan
Timothy M. Landry
Stuart M. Hurowitz
Attempted murder, first degree assault - failure to
recuse county attorney's office; failure to allow
cross-examination of one witness as to motive to
testify falsely and one witness as to past incidents of
dishonesty; exclusion of witness who was believed by
police at one time to have committed crimes at issue;
denial of mistrial where judge's illness made it
apparent to jury that judge fell asleep; denial of new
trial where State violated defendant's rights under
Vienna Convention on Consular Relations
99-008 State of NH v. Carlson,* Carl
Attorney General James E. Duggan
Stephen T. Jeffco
Felonious sexual assault - denial of mistrial based on
prosecutor's questions relative to age of defendant's
child and age of child's mother; whether evidence
supported finding that defendant was chargeable on
probation violation
99-010 Contractors Crane Services, Inc.,* Appeal of
Giguere,* Ronald, Appeal of
(compensation appeals board)
J. Kirk Trombley
Andrew A. Merrill
James E. Owers
Donna M. Head
Attorney General
Workers' compensation - whether subcontractor had
"secured the payment of compensation" where its
insurance company had denied workers' compensation
coverage; whether board erred in excluding evidence of
offer of employment made after department of labor
decision but before compensation appeals board hearing
99-015 Blagbrough, William and v. Town of Wilton, New
Corinne Hampshire*
Steven A. Bolton John P. Sherman
Trespass - whether bridge contained in private road
leading to a private home is public; whether defendant
trespassed upon land at entrance to bridge; whether
court erred by reversing its prior summary judgment
order; cross-appeal - dismissal of counts alleging
misrepresentation, temporary taking and seeking
injunctive relief; failure to properly measure damages;
exclusion of damages evidence
99-162 Marin Way Investments Corp. v. True Product
Stephanie Bray Sampling, Inc.,*
On Demand
Digitalgraphix, LLC
Kenneth D. Murphy
Landlord-tenant - commercial eviction; exclusion of
agreement between parties regarding waiver of demand
for rent; whether demand for rent was proper where it
included unpaid taxes and insurance; failure to provide
notice of default pursuant to lease