New Hampshire Supreme Court
Cases Accepted - May 1999
* denotes appealing parties
98-560 Kaplan,* Andrew S. v. Booth Creek Ski
James F. Miles Group, Inc.,
Bradford W. Kuster LMRC Acquisition
Corp.
Christopher Cole
Michael Harvell
Kevin M. Fitzgerald
Securities takeover disclosure act - whether
acquisition fell within plain meaning of "offeror" and
"takeover bid" in RSA ch. 421-A; whether court erred in
finding legislature intended to exempt type of takeover
in this case; whether plaintiffs alleged a claim upon
which relief may be granted
98-652 Milford Lumber Company v. Jeff Howe d/b/a Welcome
Donald Crandlemire Homes, Inc., RCB Realty,
Inc.,* and/or RCB
Realty, d/b/a Team
Berube Real Estate,*
Richard Berube,*
Leslie Berube, First
Eastern Mortage
Corporation and First
Federal Savings Bank of
Boston
James B. Hobbs
Breach of contract, misrepresentation, Consumer
Protection Act, unjust enrichment - whether plaintiff
is "consumer" within meaning of Consumer Protection
Act; award of attorney's fees under Consumer Fraud
Statute
98-700 Boutin, Thomas, Bonnie v. Moore Deals, Inc. d/b/a
Boutin American Eagle Homes
Barry C. Schuster d/b/a Moore Homes, Connie
Wolfson, Champion Home
Builders Co./Titan Homes
Division*
James E. Owers
Philip G. Lake
Manufactured housing - breach of warranty, rescission,
misrepresentation, Consumer Protection Act; failure to
reduce judgment against Champion by amount paid by
other defendants in settlement of claims; whether
Champion bore burden of proving that settlement related
to counts for which all defendants were liable rather
than counts against only settling defendants
98-701 National Employment v. Olsten Staffing Services,
Service Corporation Inc.*
Bradley M. Lown Jason W. Morgan
Andrew W. Serell
Interference with contractual relations, quantum meruit
whether restrictive covenant precluding temporary
employees from working for 90 days at client company
was void; exclusion from evidence of national
association's code of ethics; sufficiency of evidence;
excessive damages; double recovery
98-740 In the Matter of Meredith Pettit and Charles Pettit*
Elizabeth Cazden, for Meredith Pettit
Michael Chamberlain, for Charles Pettit
Post-divorce proceedings - child support modification;
whether court has discretion to determine child support
based on child's needs; failure to adjust support based
on child support guidelines in light of respondent's
high income and agreement to pay certain expenses
98-826 Tefft,* M. Elaine v. Town of Bedford, Mobil
Stanton E. Tefft Oil Corporation
Barton Mayer
James Tamposi, Jr.
Municipal regulation - bad faith, malice, gross
negligence; denial of hearing on attorney's fees for
appellant after appeals of zoning variances and site
plan approvals are dismissed as moot
98-834 State of NH v. Pelkey,* Richard
Attorney General James E. Duggan
Chris McLaughlin
Driving while intoxicated, subsequent offense - failure
to exclude prior offense; admission of defendant's
statement regarding proceeds of drug sales; improperly
excusing juror; jury instructions; denial of mistrial
after prosecutor made comment allegedly referring to
defendant's failure to testify
98-837 State of NH v. Harkins,* John M.
Attorney General James E. Duggan
Peter G. Callaghan
Neil J. Reardon
Theft by deception - imposition of deferred sentence;
denial of due process and right to counsel; failure to
vacate mittimus and suspend sentence
99-021 JAMAR d/b/a Dunkin Donuts* and Liberty Mutual Insurance
Company, Appeal of
(compensation appeals board)
Michael R. Mortimer
Stephen E. Borofsky
Attorney General
Workers' compensation - whether board has authority to
reopen case after motion for rehearing was denied and
appeal period has expired
99-028 State of NH v. Budgett,* Joshua
Attorney General James E. Duggan
James P. Loring
Imposition of suspended sentence - due process; whether
court erred by imposing suspended sentence after
defendant violated parole where defendant did not
violate only specific condition court had previously
imposed at time of sentence suspension
99-037 Pegasus Real Estate, v. Town of Plymouth*
LLC Daniel D. Crean
Margaret H. Nelson
Property tax - abatement; under capitalization of
income approach, whether court improperly adjusted for
deferred maintenance; exclusion of evidence of amount
of mortgage existing on premises one month after
assessment date; exclusion of evidence of nature of
assessments on other student rental housing in
Plymouth; whether court's characterization of expert's
credibility, stated prior to cross-examination,
prevented full consideration of cross-examination and
ability to test expert's credibility
99-039 Houle,* Patricia M. v. Circuit Technologies
Leslie C. Nixon and Aetna Casualty and
Surety Insurance Co. and
NH Department of Labor
James E. Owers
Workers' compensation - mandamus petition; whether
trial court erred in denying mandamus petition on
ground that petitioner had other adequate remedies;
whether department of labor was required to schedule
hearing upon petitioner's request; whether claimant can
meet standards of RSA 281-A:48 with evidence other than
objective medical evidence of change in condition;
whether scheduling of hearing is ministerial act; due
process
99-046 Webster,* Kenneth, v. Town of Candia, Town of
Margaret Demos, as Candia Planning Board
trustees of the Kenneth Barton L. Mayer
Webster Trust, Winthrop
Sargeant
Robert E. Murphy, Jr.
Municipal ordinance - application to cut trees; whether
scenic road statute is unconstitutionally void for
vagueness; regulatory taking; whether planning board's
decision was reasonable due to presence of alternative
access; whether board's notice of decision was
reasonable and lawful; whether evidence of wetlands
impact was irrelevant; procedural due process
99-065 Metevier,* Pat, Appeal of
(compensation appeals board)
James E. Townsend
Nelson Raust
Attorney General
Workers' compensation - attorney's fees; whether board
failed to consider attorney's standing and skill
involved in awarding attorney's fees; whether board
erred in basing fees upon unwritten fee schedule or
"range of approved rates"; whether board erred in
awarding fee to attorney with 25 years of experience
based on hourly rate of $130 in disregard of cases in
which board had approved rate of $175 per hour
99-073 Beaverbrook Estates,* v. Schlapp, Frederick,
Inc. Suzanne Schlapp
Michael T. Ryan Steven G. Shadallah
Purchase and sales agreement - specific performance;
whether provision in contract was condition precedent;
whether plaintiff was in material default; whether
failure to obtain subdivision approvals was occasioned
through no fault of defendants; whether court erred in
awarding deposit to defendants; unjust enrichment
99-092 White, Steven A. v. Caron,* Randall
Kenneth M. Brown William S. Orcutt
Negligence - motor vehicle accident; whether service of
process upon defendant's insurer was sufficient to give
the court personal jurisdiction over the defendant
99-099 State of NH v. Finn,* Forrest
Attorney General Claude T. Buttrey
Controlled drugs - inventory search; whether officer
may open closed container during inventory search of
automobile
99-104 Delaney,* Frederick, v. State of NH
Shirley Delaney Attorney General
James H. Gambrill
Flood control - immunity; whether State had established
policy of addressing flooding of Route 1-A; whether
State violated established policy; whether State is
immune from suit for damages; whether State's actions
under policy were ministerial or discretionary in
nature
99-112 Krider,* Mark R., v. New England Annual
Deborah L. Krider Conference of United
W. Wright Danenbarger Methodist Church,*
Thomas W. Aylesworth General Council on
Finance and
Administration of
United Methodist Church,
United Methodist Church
of Munsonville
William L. Tanguay
Andre A. Sancoucy
William A. Mulvey, Jr.
Thomas W. Porter, Jr.
Negligence - direct and vicarious liability; violation
of First Amendment by failing to exclude evidence
related to collection, distribution, and spending of
church funds; sufficiency of evidence; erroneous jury
instruction; cross-appeal - whether trial court erred
by dismissing claims against church based on strict
scrutiny standard of Religious Freedom Restoration Act,
which was later declared unconstitutional; failure of
trial court to fairly cover issues and law of case in
jury instructions
99-113 State of NH v. Desmarais,* Ronald
Attorney General James E. Duggan
Hampton W. Howard
Felonious sexual assault - motion for new trial;
ineffective assistance of counsel
99-137 Martin,* Roger L., Adele v. Commercial Union
V. Martin Insurance Company,
Brian T. McDonough Maine Mutual Fire
Mark S. Gearreald,for Insurance Company
intervenors Robert and Elizabeth A. Germani
Cathleen Mark *
Liability insurance - whether court erred in applying
exclusion for bodily injury which is expected or
intended by the insured; whether court erred in finding
insured's actions were not accidental
99-145 State of NH v. Riendeau, Pierre
Attorney General James E. Duggan
Andrew D. Correia
Operating after certification as habitual offender -
refusal to give jury nullification instruction and
limiting defendant's argument on nullification;
admission of irrelevant and prejudicial evidence
99-149 State of NH v. Mullen,* Martin
Attorney General Mark M. Rumley
Aggravated felonious sexual assault, attempted
aggravated felonious sexual assault, simple assault,
assault of a prisoner - whether evidence of victim's
psychiatric history as it related specifically to
defendant was relevant; use of peremptory challenge to
juror by State based on sex and ethnicity
99-152 State of NH v. Russo,* John
Attorney General James E. Duggan
James D. Quay
Richard E. Samdperil
Theft by deception, theft by misapplication, forgery -
admission of evidence of defendant's gambling losses;
sufficiency of evidence on forgery indictment that
writing was an instrument which represented an interest
in actual property as required by RSA 638:1, III(b)
99-153 State of NH v. Englesbe,* Stephen P.
Attorney General Gerard J. Boyle
Driving while intoxicated - whether defendant was
improperly stopped and arrested, contrary to RSA
105:13, by out-of-town police officer on routine patrol
99-155 Demir,* Cynthia v. Town of Rye, Gene
(Margolskee) and Boccialette
Penny E. Margolskee Michael Donovan
Craig N. Salomon Gene Boccialetti, pro se
Muncipal regulation - whether court erred by dismissing
as party of record equitable owner of lots affected by
planning board's action; whether plaintiff had interest
in undeveloped street or undivided fee interest in
Thompson Court; whether plaintiff has right to use
Thompson Court for vehicular travel; whether court
erred by allowing subdivision as a boundary line
adjustment, where remaining land failed to meet zoning
ordinance frontage requirements
99-160 State of NH v. Bathalon,* David
Attorney General Steven L. Maynard
Second degree assault - failure to declare mistrial
after court dismissed juror for juror misconduct;
whether jury instructions on issues of recklessness and
self-defense were erroneous
99-164 Emond,* Leonard, M.D. v. NH Department of
Emile R. Bussiere, Jr. Labor
Attorney General
Workers' compensation statute - whether RSA 281-A:38,
II, which limits which physicians can perform
independent medical examinations, violates equal
protection or due process; whether trial court erred by
substituting its own beliefs as to the purpose of the
classification created by RSA 281-A:38, II
99-167 Jesurum,* Robert v. Mark, Rabbi David, Leslie
Charles G. Douglas, III Schwartz, Sanford and
Helaine Roberts, Harold
Moldoff, Diane Share,
Bert Freedman, Andrew
and Diane Karpman, Robert
Goldberg, Hans
Heilbronner
Stephen L. Tober
William Mulvey, for
Freedman
Intentional infliction of emotional distress - whether
court erred in awarding attorney's fees to defendants
99-173 Flynn,* Kurk, Appeal of
(personnel appeals board)
Michael C. Reynolds
Attorney General
State employment - seniority; whether the term "leave
without pay for personal ... purposes" includes an
unpaid disciplinary suspension
99-174 Gauthier, Garry v. Morrissette,* George H.,
Gerald Prunier George H. Morrissette
as Trustee of the GHM
Revocable Trust
James B. Kazan
Specific performance - option to purchase realty;
application of doctrine of equitable estoppel to claims
of breach of management agreement; whether court erred
in awarding attorney's fees in light of language in
option agreement; whether court erred in awarding
$5,000 per month to petitioner in attempt to provide
lost benefits of the unexecuted option agreement
99-175 In the matter of Lenora Ann Fadden n/k/a Davidson* and
Lawrence Dexter Fadden
Arthur Mudge
Lawrence Dexter Fadden, pro se
Attorney General
Petition to recover public assistance - child support;
whether RSA 458:17, XI(d) authorizes State to reopen
case to modify order when no public assistance had been
given at time of order and there was no assignment of
rights pursuant to RSA Chapters 161 or 167
99-179 Lord,* Belinda Joyce v. Lovett, James, M.D.,
Edgar D. McKean, III Samuel Aldridge, M.D.
Ronald J. Lajoie
Lawrence S. Smith
Medical malpractice - claim for lost opportunity for a
substantially better recovery; whether "lost
opportunity" claim is precluded by RSA chapter 507-E;
whether "lost opportunity" claim is a cognizable cause
of action
99-190 Funai,* Richard, Cheryl v. Metropolitan Property &
Funai Casualty Insurance Co.
Steven A. Solomon Wilfred P. Desmarais, Jr.
Uninsured motorist claim - arbitration; whether policy
is ambiguous and insured is entitled to arbitrate
uninsured motorist claim; whether insurer's consent to
settlement constituted consent to arbitration; estoppel
Note: The court has consolidated 98-727 and 99-113.