New Hampshire Supreme Court
Cases Accepted - August 2000
* denotes appealing parties
96-356 Fournier,* Patricia,
(compensation appeals board)
Janine Gawryl for Ms. Fournier
James E. Owers for Sedgwick James of Northern N.E.
Attorney General
Workers' compensation, amended appeal after remand -
whether board erred in failing to make findings or
rulings; whether board improperly shifted burden of
production to claimant; whether decision supported by
the record; whether competent medical testimony was
required; refusal to review Guides to the Evaluation of
Permanent Impairment; denial of request for rehearing;
whether hearing before different panel on remand was
prejudicial
99-590 State of NH v. Deyo,* Jay
Attorney General James E. Duggan
Stephen T. Jeffco
Driving after certification as habitual offender,
driving while intoxicated, subsequent offense, conduct
after an accident, false report to law
enforcement - denial of motion to suppress;
sufficiency of evidence
99-743 State of NH v. Rizzitano,* Joseph
Attorney General Paul J. Garrity
Driving while intoxicated, second offense - double
jeopardy; whether defendant's motion for mistrial with
prejudice at first trial preserved defendant's
objection to the granting of a mistrial without
prejudice and further prosecution
00-025 State of NH v. Cole,* Alexander R.
Attorney General James E. Duggan
John Glynn
Felonious sexual assault - whether imposition of
extended term of imprisonment violated double jeopardy;
whether sentence is unconstitutionally
disproportionate; whether State v. Hennessey should be
overruled
00-063 State of NH v. King,* Scott
Attorney General James E. Duggan
Caroline L. Smith
Manslaughter - whether tape of call to 911 was
inadmissible hearsay; exclusion of statements or
findings referenced in a P.A.C.E. evaluation as
rebuttal evidence; exclusion of prior bad conduct of
victim; sufficiency of evidence to disprove self-
defense
00-071 Manias, Mary Lou, Louis v. City of Concord, Cedar
Manias, Barbara Reed, Grant, LLC*
Leon Reed, Joan Wright-Reno, James F. Raymond
William Reno, Shelley Peter J. Loughlin
Miknaitis, Roger Miknaitis,
Donna Muir, Jane Grushynsky,
Derek Grushynsky, Betty
Mercer, Faith Savelo,
Peter Savelo, Tina
Daniels, Tim Daniels
Jed Z. Callen
Municipal regulation - whether Cedar Grant has a vested
right to complete project approved by planning board;
whether any vested right was lost by abandonment
00-072 State of NH v. Kane,* Shaun
Attorney General James E. Duggan
Dennis P. O'Connor
Philip R. Desfosses
Felon in possession of firearm - motion to suppress
search of rented storage unit; whether affidavit in
support of search warrant alleged nexus between items
sought and place to be searched
00-083 State of NH v. McKean,* Ronald E.
Attorney General James E. Duggan
Gary Apfel
Kidnapping, criminal threatening - untimely indictment;
double jeopardy; failure to strike juror for cause;
misleading jury instructions regarding nature of
alternative indictments; sufficiency of evidence;
incorrect response to jury question; failure to order
psychiatric evaluation prior to imposition of sentence
00-116 State of NH v. Russell,* Benjamin
Attorney General James E. Duggan
David Hammerstad
Driving after certification as habitual offender -
whether charged offense is properly classified as a
felony
00-140 Merrimack Valley Wood v. Near, Glen
Products, Inc.,* American Jamie N. Hage
Cabinet Corp. Robert J. Lloyd
Thomas J. Donovan
Employment contract - noncompetition covenant; whether
court erred by refusing to reform nonsolicitation
language of agreement; whether plaintiffs acted in bad
faith by presenting agreement to employee six months
after start of employment; whether contempt motion was
moot; law of the case; whether defendant may recover
damages and costs in the absence of an injunction bond;
whether court erred in awarding damages and attorney's
fees to defendant
00-158 CNA Insurance Companies,* Appeal of
(compensation appeals board)
James E. Owers
Stephen A. Duggan
Andrew A. Merrill
Lillian Whitcomb, pro se
Attorney General
Workers' compensation - whether date of injury was date
claimant left work (1/9/99); failure of board to accept
uncontradicted expert testimony that claimant lost
earning capacity in 1995; whether board erred by
relying exclusively upon claimant's earnings to
conclude claimant had no loss of earning capacity
00-172 Crowley, William, v. Frazier,* Sharon
Deborah Crowley Gabriel Nizetic
William Egge
Landlord-tenant - whether RSA chapter 540-A authorizes
claim for breach of implied warranty of habitability;
sufficiency of evidence that landlord acted willfully;
failure to prove damages; waiver
00-175 Collier,* Diane v. Stern, Herbert
David P. Slawsky Edwinna C. Vanderzanden
Breach of contract, promissory estoppel, detrimental
reliance, reasonable housing and support - whether
defendant was liable for uninsured costs of dental
treatment; failure to enforce order requiring defendant
to produce telephone records and bank records;
exclusion from evidence of greeting cards based on
failure to produce them during discovery
00-182 Gendron,* Fred v. Town of Pelham
Donald E. Gartrell Diane M. Gorrow
Andrew B. Eills
Municipal regulation - junkyard license renewal;
whether court relied upon wrong statute; whether
nuisance existed justifying denial of junkyard license
renewal; whether regulatory taking occurred entitling
plaintiff to compensation
00-185 In the Matter of James McCusker* and Joan McCusker
Ruth P. Gulick
Robert J. White
Post-divorce proceedings - whether court can rewrite
property settlement decree to accommodate a
circumstance unforeseen by either party at the time of
the original order
00-187 Revolution Portfolio, v. Feldman, Jerald R.,
LLC individually and as
James F. Ogorchock Trustee of the JONMYC
Realty Trust
Jason A. Manekas
Peter B. McGlynn
Mark S. Derby, for the
intervenors Jonathan
Feldman,* Mychal Feld-
man, Zachary Feldman,
Marissa Feldman
Judgment - execution; whether defendant was a
beneficiary of JONMYC Realty Trust; whether trust
beneficiaries consented to defendant's use of trust
assets as collateral; whether trust assets could be
reached by defendant's later-acquired personal
creditors; whether superior court had jurisdiction to
set aside trust
00-191 International Brotherhood of Police Officers,* Appeal
of
(public employee labor relations board)
Peter C. Phillips
Gary W. Wulf
Attorney General
Public employee labor relations - whether probationary
employee is protected from discrimination under RSA
273-A:5 for engaging in union activities
00-194 State of NH v. Cassell,* Jerome
Attorney General Paul Twomey
Aggravated felonious sexual assault - motion for new
trial; failure to make complete record of jury
selection; failure to explain why jurors were excused;
ineffective assistance of counsel; allowing witness to
flout subpoena without consequence
00-197 Kumar, A. Jack v. Brochu,* Douglas Sr.
Mark Hanlon Anthony S. Hartnett
Landlord-tenant - eviction; whether defendant was in
arrears; whether lease should be terminated for failure
to pay $15 liquidated damages pursuant to RSA 540:9;
res judicata
00-203 Cisneros, Juan Pablo, v. Budget Car & Truck
Ariane Hentsch Rental*
pro se Michael J. Atkins
Damages to rental vehicle - small claims; failure to
default plaintiff who did not appear for hearing;
allowing absent plaintiff to present unverified
statement of plaintiff at trial; sufficiency of
evidence
00-205 In re Diane R.
Ruth A. Hall, for the parents*
Attorney General
Child abuse and neglect proceedings - whether statutory
provision for de novo appeal from final dispositional
order fails to protect parents' constitutional rights
where DCYF investigation does not result in criminal
charges but does result in removal of child from
parents' custody and continues to result in greater
alienation of the family members from lack of inclusion
in DCYF decisions
00-206 State of NH v. Bashaw,* Darren
Attorney General James E. Duggan
Nancy A. DeAngelis
First degree assault - admission of recorded
recollection made hours after assault by witness who
was impaired by alcohol; exclusion of victim's
misdemeanor convictions for crimes of violence and
prior bad act of stealing a police badge; whether court
erred in instructing jury on use of deadly force in
self-defense and on mutual combat
00-210 McKinnon, Kevin v. Jean,* Bob
pro se pro se
Breach of contract - sale of puppy; awarding judgment
in excess of claim and over $1500 limit, entitling
defendant to jury trial
00-216 MacMillan,* Alexander, as v. Scheffy, Brackett
trustee of the Dickson L., Stephen Toy,
Family Irrevocable Trust, Karen Toy
Tracy Dickson, Patricia Brackett L. Scheffy
Dickson Katherine B. Stearns
W.E. Whittington
Breach of warranty, negligence - damages; whether trial
court's award directly contradicted jury verdict form;
whether court erred in ordering set off; cross-appeal -
whether court erred by directing verdict for
plaintiffs; admission of nonexpert testimony of
plaintiff on comparative value of property with and
without restrictive covenant
00-222 Town of Litchfield,* Appeal of
(public employee labor relations board)
Robert R. Lucic
Wayne Soini
Attorney General
Public employee labor relations - whether firefighters
are irregularly employed or on call employees and thus
ineligible for membership in bargaining unit; whether
deputy town clerk/tax collector is appointee or
otherwise ineligible for membership in unit
00-223 State of NH v. Spaulding,* Bert Jr.
Attorney General Paul Twomey
Sale of represented controlled drug - whether court
erred in relying on prosecutor's unsupported
representations in imposing sentence; denial of pre-
trial credit against jail sentence for time spent in
home incarceration under bail order
00-232 State of NH v. Kaufhold,* Joanne
Attorney General Robert J. Moses
Aggravated driving while intoxicated, speeding - denial
of motion in limine with respect to radar stop of
defendant's vehicle; whether police were obliged to
give advice to defendant pursuant to RSA 265:87, I-a;
whether court erred by considering field sobriety test
results in determining that probable cause existed for
arrest; whether field sobriety tests were involuntary;
sufficiency of evidence of speeding; violation of right
to speedy disposition
00-234 State of NH v. Higgins,* Jack Z.
Attorney General James E. Duggan
James H. Moir
Aggravated felonious sexual assault, criminal
threatening, criminal restraint - prohibiting defendant
from inquiring into victim's prior profession as
prostitute where victim was so acting in her contact
with defendant; whether confession was voluntary;
limitation upon defendant's closing argument; denial of
mistrial or rebuttal closing argument; whether court
erred in applying sentence enhancement provisions of
RSA 651:2, II-g to two counts of criminal threatening
00-239 State of NH v. Michels,* Robert J.
Attorney General John R. Michels
Speeding - violations of due process and double
jeopardy clauses; prohibiting defendant from
questioning police officer about his knowledge of radar
procedures; failing to allow defendant to testify to
rebut other testimony
00-241 Pawtucket Mutual v. Buckman, Donald P.,
Insurance Company Elaine M. Buckman,
Melinda S. Gehris Hartford Insurance
Company*
Stephen J. Schulthess
Automobile insurance coverage - whether employer
"owned, hired or borrowed" rental vehicle rented by
employee for personal use during vacation with friend
employed by customer of employer; whether vehicle was
rented as part of employer's business
00-250 State of NH v. Duffy,* Brian
Attorney General Mark L. Stevens
Driving while intoxicated - admission of police
officer's opinion testimony about Horizontal Gaze
Nystagmus test; failure to suppress defendant's
statements made during booking where no waiver of
Miranda rights shown
00-253 Morrill, Maureen v. Morrill,* Bruce
Amy Davidson Roy Weddleton
Domestic violence - whether court erred by refusing to
allow children ages 15 and 16, who were eyewitnesses to
alleged assault, to testify and by requiring them to
leave the courtroom and not hear any testimony
00-264 State of NH v. Weldon,* Mark
Attorney General Robert J. Moses
Driving while intoxicated - numerous issues including
failure to prove driving upon a way; violation of due
process where trial judge affirmatively assisted State;
bias by trial judge against defendant; failure to
exclude results of field sobriety tests; whether
probable cause existed for arrest
00-266 Fillmore, Diane v. Fillmore,* Franklin B.
Elaine Kennedy Susan Brisson
Domestic violence - sufficiency of evidence for finding
of abuse; whether allegations supported issuance of ex
parte temporary orders
00-269 Manchester Association of Police Supervisors,* Appeal
of
(public employee labor relations board)
Vincent A. Wenners, Jr.
Thomas Clark
Attorney General
Bargaining unit - whether board erred by concluding
that although position of business service officer is
not a confidential position, if incumbant holds union
office then it becomes a confidential position and is
no longer in the bargaining unit
00-282 State of NH v. Savickas,* John
Attorney General James E. Duggan
Dorothy E. Graham
Richard E. Samdperil
Felonious sexual assault - failure to dismiss defective
indictment; impermissible amendment of defective
indictment; whether victim was competent to testify;
admission of prior statements by victim to police;
denial of mistrial after State admitted evidence of
prior bad acts
00-284 State of NH v. Warren,* Theodore
Attorney General James E. Duggan
Andrew R. Schulman
Barbara Keshen
Manslaughter - whether court erred by limiting defense
allowing use of deadly force in one's own dwelling to
situations in which an intruder enters the dwelling
without permission; whether defendant's statements fell
within excited utterance or present sense impression
exceptions to hearsay rule
00-303 In re Tonya L. F.*
James E. Duggan
David N. Foley
Attorney General
Unauthorized use of motor vehicle - juvenile; whether
court exceeded its authority by placing juvenile on
conditional release until age 18 while also committing
her to YDC for the term of her minority; whether court
had authority to retain jurisdiction against the
juvenile's wishes beyond her release from YDC
00-306 DeVere, Peter v. Commissioner, NH
pro se Department of Safety*
Attorney General
Right-to-Know Law - whether department is required to
ascertain unknown and unrecorded information from its
records through a cross-referencing procedure for
disclosure to a private party; whether superior court
had subject matter jurisdiction; denial of stay pending
appeal
00-314 State of NH v. Tatro,* Lon
Attorney General James E. Duggan
Rodkey Craighead, Jr.
Debbie Martin
Felonious sexual assault - whether court erred in
denying curative instruction regarding prosecutor's
reference in closing argument to defendant's silence;
failure to order GAL to disclose counseling records for
in camera review
00-322 Brown,* John P. Jr., Appeal of
(board of mental health practice)
pro se
Attorney General
Psychologist license - suspension; denial of right of
confrontation due to failure to produce accusers at
hearing; failure to rule on requests for findings and
rulings
00-330 State of NH v. Raymond,* Jared
Attorney General Brian T. Tucker
Criminal threatening - whether court erred by
instructing jury that it should trust that the court
would be fair to the defendant in the event of a guilty
verdict
00-335 University System of New Hampshire Board of
Trustees,* Appeal of
(public employee labor relations board)
Ronald Rodgers
Nicholas DiGiovanni, Jr.
Maura D. McLaughlin
James F. Allmendinger
Attorney General
Public employees - certification of representation; res
judicata; sufficiency of evidence; whether adjunct
faculty members are public employees or temporary
employees
00-346 Enos,* Shauna v. Bangs, Robert
George Malonis Robert G. Whaland
Meredith L. Richardson
Automobile accident - release; where release was
subject to conditions not fully complied with by
defendant, whether release bars plaintiff from bringing
her original tort action against defendant
00-367 Contoocook Valley School v. Graphic Arts Mutual
District, School Insurance Co.*
Administrative Unit No. 1
Gordon A. Rehnborg Andrew D. Dunn
Doreen F. Connor James R. Fox
Commercial liability insurance - whether exclusion for
any claim for salary or other remuneration in the
school district and educators legal liability coverage
form is ambiguous as applied to statutory claims that
seek damages in the form of lost wages and benefits
00-368 Mello,* Allen C. v. New Hampshire Department
Scott H. Harris of Revenue Administration
Attorney General
Business profits tax - deduction for reasonable
compensation; whether taxpayer must file formal
petition with department of revenue administration
before waiving department's formal adjudicative
process; whether plaintiff forfeited his right to
appeal; whether plaintiff met requirements of RSA 21-
J:28-b, I; whether September 13 pleading was timely
amendment to September 3 waiver
00-370 Town of Bedford,* Appeal of
(public employee labor relations board)
Barton L. Mayer
John Krupski
Attorney General
Public employee labor relations - bargaining unit;
whether bargaining unit of firefighters should include
lieutenants or building/health code inspector; whether
building/health code inspector position was filled by a
professional employee; exclusion of evidence as to
effect of placing lieutenants in bargaining unit;
failure to act upon requests for findings of fact and
rulings of law
00-378 Royal and Sunalliance/Aavid Thermal Technologies,*
Appeal of
(compensation appeals board)
Eric P. Bernard
Shawn E. Nichols
Attorney General
Workers' compensation - whether board erred by untimely
accepting second motion for rehearing; res judicata;
whether employee was a newly losing party by virtue of
board's ruling on first motion for rehearing; due
process; equal protection
00-399 Lanoue,* Shirley v. Apfel, Kenneth S.,
John D. McIntosh Commissioner, Social
Security Administration
United States Attorney
Supplemental security income benefits - whether special
needs trust created pursuant to 42 U.S.C. 1396p may
be revoked by the beneficiary or her guardian;
certification from United States District Court for the
District of New Hampshire