Civil

1. Bielagus v. EMRE of New Hampshire, Corp., No. 2002-180 (Successor Liability)

July 1, 2003
Affirmed

• Whether New Hampshire law recognizes the four traditional exceptions to the prohibition against imposing successor liability in commercial contract cases.
• Whether the trial court erred in finding that an asset sale agreement did not constitute a de facto merger.
• Whether the trial court erred in finding that the defendant was not a "mere continuation" of prior business.
• Whether to recognize the expanded "continuity of the enterprise" test for successor liability in commercial, contract or products liability law.
• Whether inconsistency between the trial court’s narrative opinion and its rulings on the plaintiffs’ individual requests for factual findings affect case outcome.
• Whether trial court erred in ruling that defendant’s non-competition agreements with shareholders of defendant’s predecessor did not amount to a transfer of equity in the defendant’s corporation.

2. Zola v. Kelley., No. 2002-482 (Evidence)

July 1, 2003
Reversed and Remanded

• Whether plaintiff waived right to challenge ruling that her prior drug conviction was admissible by introducing the conviction herself during direct testimony.
• Whether trial court erred in not weighing the probative value of plaintiff’s prior felony drug conviction against the potential for prejudice in civil case.
• Whether to follow United States Supreme Court’s interpretation of Fed. R. of Evid. 609(a)(1) for New Hampshire Rule.

3. Fastrack Crushing Srvcs., Inc. v. Abatement Internat’l/Advatex Assoc., Inc., No. 2002-265 (Performance Bond Enforcement)

July 2, 2003
Reversed
• Whether to revisit trial court’s holding that performance bond was required by statute.
• Whether terms of statutory payment bond waived notice requirements for bond under RSA 447:17 and RSA 447:18.
• Whether plaintiff substantially complied with terms of RSA 447:17 and RSA 447:18.
4. Mountain Environmental, Inc. v. Abatement Internat’l/Advatex Assoc., Inc., No. 2002-629 (Performance Bond Enforcement)

July 2, 2003
Reversed

• Whether plaintiff complied with statutory notice requirements for bond required under RSA 447:17 and RSA 447:18.

5. Devere v. State, No. 2002-155 (Standing/ Driver Privacy Act)

July 8, 2003
Affirmed
• Whether plaintiff failed to exhaust administrative remedies and thus lacked standing to sue.
• Whether the superior court erred in concluding that N.H. Admin. Rule, Saf-C 5601.08 (January 14, 2002) (Rule 5601.08) exceeded the scope of RSA 260:14, V(a)(1) and (a)(4).
• Whether superior court erred in concluding that the department unsustainably exercised its discretion by denying the plaintiff’s request for records.

6. Town of Ossipee v. Whittier Lifts Trust, No. 2002-470 (Tax/Contract)

July 8, 2003
Affirmed

• Whether defendant Whittier Communications has a taxable interest in state-owned communications tower on its property.
• Whether state has a contractual obligation to reimburse defendant Whittier Communications for any taxes arising out of its use of the tower.
• Whether trial court erred by ruling that defendant Whittier Trust cannot be taxed for the value of the tower because it does not have a taxable interest in the tower for purposes of RSA 72:23.

7. The Craftsbury Co. v. Assurance Co. of America, No. 2002-633 (Statute of Limitations)

July 21, 2003
Reversed and Remanded

• Whether the trial court erred in ruling that plaintiff’s declaratory judgment action was not barred by the six-month limitations period under RSA 491:22, III.

8. The Norwood Group, Inc. v. Phillips, No. 2002-726 (Statute of Limitations)

July 24, 2003
Affirmed in part, Reversed in part, and Remanded

• Whether plaintiffs’ equitable petition to pierce the corporate veil based on fraud is governed by the 20-year statute of limitations for actions to enforce a judgment or the general three-year statute of limitations.
• Whether applying the 20-year statute of limitations to the plaintiffs’ petition to pierce the corporate veil violates defendants’ constitutional right to equal protection under the New Hampshire Constitution.
• Whether plaintiffs’ fraudulent transfer claim was brought within the applicable statute of limitations.

Criminal

1. State v. Smith, No. 2001-719 (Evidence/Prior Inconsistent Statement)

July 18, 2003
Affirmed

• Whether trial court erred by allowing State to impeach its own witness with a prior inconsistent statement.

2. State v. Davis, No. 2002-146 (Search & Seizure/Indictment)

July 18, 2003
Affirmed

• Whether trial court erred in finding that the seizure of weapons from defendant fell within the plain view exception to the warrant requirement.
• Whether trial court erred in finding that incriminating nature of the items seized from defendant was immediately apparent.
• Whether trial court erred in failing to dismiss indictments for lack of specificity.
3. State v. Hull, No. 2002-297 (DUI/Evidence/Double Jeopardy)

July 21, 2003
Affirmed

• Whether trial court should have excluded defendant’s prior Massachusetts conviction for operating under the influence under reasonable equivalency test.
• Whether the trial court properly denied the defendant’s motions to dismiss and to set aside the verdict based on sufficiency of the evidence.
• Whether there was proof beyond a reasonable doubt that defendant used his vehicle in a manner that would cause it to become a deadly weapon.
• Whether defendant’s convictions for DUI and reckless conduct violate double jeopardy under the State Constitution.

Workers’ Compensation

1. Estate of Ireland v. Worcester Ins. Co., No. 2002-486 (Retroactivity)

July 1, 2003
Affirmed

• Whether Supreme Court’s holding in Matarese v. New Hampshire Municipal Assoc. Property-Liability Ins. Trust, Inc., 147 N.H. 396 (2002), should be retroactively applied to plaintiff’s suit.
• Whether holding in Matarese should be overruled as contrary to legislative intent.

Administrative

1. Lone Pine Hunters’ Club, Inc. v. Town of Hollis, No. 2002-552 (Zoning)

July 2, 2003
Reversed and Remanded

• Whether trial court exceeded its authority by impermissibly substituting its own factual determinations for those of the zoning board of adjustment.

2. Appeal of Nashua Police Commission, No. 2000-342 (PELRB/Unfair Labor Practices)

July 18, 2003
Affirmed

• Whether collective bargaining agreement required Police Patrolman’s Association of the City of Nashua to arbitrate before submitting its grievance to the Public Employee Labor Relations Board (PELRB) through an unfair labor practice charge.
• Whether PELRB erroneously ruled that the Commission had a duty to negotiate new standard operating procedure for notifying police officers of court appearances.

Kenneth C. Bartholomew practices with the Concord firm Rath, Young & Pignatelli. His practice focuses on health care regulatory compliance, health care litigation, medical malpractice defense and complex commercial litigation.

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