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Bar News - August 15, 2003

Supreme Court at a Glance - June 2003

THE "SUPREME COURT at a Glance" is an index of cases decided by the Supreme Court in a recent month. The editor of each installment of "At a Glance" identifies the issues the Supreme Court confronted in each case, making it easy for attorneys to identify the cases of interest to them. The full decisions on those cases can then be reviewed at http://www.courts.state.nh.us/.

Civil

Maria Donnelly v. Donna Eastman

Whether trial court should have granted Motion to Dismiss on account of plaintiffs' failure to file suit within the applicable statute of limitations.

Whether counsel's completing Writ and sending it to sheriff for service within 3 years of the accident complies with Superior Court Rule 2's requirement of "service" or "entry" of the Writ within 3 years.

Smart, Executrix v. American Welding and Tank Company, Inc.

Whether Superior Court erred in denying Motion for Summary Judgment on co-defendant's contribution claim.

Whether the trial court erred in ruling that New Hampshire does not follow the federal rule regarding common carrier liability for injuries caused by the defective loading of goods.

Whether federal law was inapplicable because accident occurred during unloading, not transporting, of cargo or because decedent was a party outside of the trucking industry.

Equity

Diana Wolters v. American Republic Insurance Company

Whether trial court properly granted summary judgment to the insured on her declaratory judgment claim.

Whether a health insurance carrier has an equitable right to reimbursement or subrogation of its insured's settlement proceeds for medical expenses paid under a policy that contains no reimbursement or subrogation clause.

Criminal

State v. Plch

Whether trial court erred in refusing to suppress defendant's statements taken after he had requested counsel.

Whether trial court erred in failing to "adequately and accurately" inform defendant of his right to have counsel present during questioning.

Whether trial court erred in failing to suppress evidence obtained in the search of defendant's apartment pursuant to a search warrant.

Whether trial court erred in limiting evidence that the victim had used prescription drugs.

State v. Spencer

Whether police officer "interrogated" defendant by showing her bank surveillance photographs.

Whether defendant's Miranda rights were coerced by a police promise to obtain personal recognizance bail in exchange for her cooperation.

Whether timing of officer's comment to defendant rendered her subsequent waiver and confession the product of coercion.

Derosia v.Warden, N. H. State Prison

Whether Superior Court erred in denying defendant's Petition for Writ of Habeas Corpus.

Whether "theft of property or services" as set forth in RSA 637:11, 2(b) encompasses burglary with the purpose to commit theft.

State v. Amirault

Whether trial court erred in denying defendant's pre-trial motions

for in camera review of certain police personnel files.

Whether in requesting in camera review the defendant established a "reasonable probability that the records contain[ed] information material and relevant to his defense."

State v. VanDyck

Whether New Hampshire Rule of Professional Conduct 3.7(a) required disqualification of attorney under "unsustainable exercise of discretion" standard.

Whether trial court was correct in disqualifying counsel on ground that he was a "necessary" witness in the case.

State v. Thompson

Whether trial court erred in ruling that Polymerase Chain Reaction (PCR) based short tandem repeat (STR) DNA profiling is a generally accepted method of forensic DNA testing.

Whether trial court erred by denying defendant a pretrial evidentiary hearing regarding the admissibility of certain DNA testing.

Juvenile Law</P>

In Re: Juvenile 2002-209

Whether trial court erred in excluding child's medical and counseling records and the testimony of one of the child's therapists.

Whether trial court erred in requiring expert testimony to prove that the child's purported regressive emotional behavior was causally related to the claimed abuse.

Whether trial court erred in dismissing DCYF's physical abuse petition on ground of lack of injury or lack of intentional causation.

In Re: Juveniles 2002-511- A and 2002-511-B

Whether trial court's failure to specify conditions for reunification with children deprived mother of her statutory rights and procedural due process.

Whether RSA 169-C:3, which defines "Court" as "the district court, unless otherwise indicated," limits application of RSA 169-C:21 to the district court or family division.

Domestic

In the Matter of Douglas Hoyt Nelson and Sylvia Horsley

Whether Superior Court has subject matter jurisdiction to grant an unrelated third-party custodial rights to minor children he has not adopted by virtue of the in loco parentis and psychological parent doctrines.

Whether an order granting custodial rights to an unrelated third-party over the express objection of the minor children's sole parent violates the parent's rights under N.H. Const. pt. I, Art. 2 and United States Constitution, Amendment XIV.

Probate

Estate of Robitaille v. NH Dept. of Revenue Administration

Whether Probate Court erred in dismissing a challenge to the Department's legacy and succession tax assessment.

Whether RSA 86:6 establishes an unconstitutional classification of tax payers.

Whether in limiting tax to property passing to collateral relatives the Legislature established a reasonable ex emption of property from taxation.

Administrative

Franklin Lodge of Elks v. Sally Marcoux

Whether Commission for Human Rights properly awarded Petitioners compensatory damages for emotional harm for discrimination by benevolent organization.

Whether benevolent organization falls within the scope of the public accommodations law under RSA 354-A:17.

Whether compensatory damages awarded were unsupported by the evidence and erroneous as a matter of law.

Whether New Hampshire State Constitution limits each petitioner's damages to $1,500.00.

Route 12 Books & Video v. Town of Troy

Whether trial court erred in upholding planning board's denial of application for site plan review.

Whether Petitioner's appeal from act of town planning board was not timely filed under RSA 677:15.

Whether trial court erred in finding that the planning board letter denying the Petitioner's application for site plan review constituted a final decision of the planning board.

Whether trial court erred in reversing its earlier order denying the planning board's motion to dismiss, after hearing the appeal and taking view of Petitioner's property.

Whether trial court erred in failing to address the merits of Petitioner's allegation that the planning board acted in bad faith by not following its own procedures and by thwarting Petitioner's attempts to rectify its application.

The editor of this month's "Supreme Court at a Glance," Merrick C. Weinstein, is an attorney with Devine & Nyquist, Manchester, and a member of the NH Bar News Editorial Advisory Board. His practice focuses on trial work in the areas of personal injury, employment law, workers' compensation and insurance law.

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