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Bar News - April 4, 2008


NH Supreme Court 3JX Summaries

Find text of these non-precedental orders under the month of the decision at http://www.courts.state.nh.us/supreme/3jx/2007/index.htm.


CRIMINAL - EVIDENCE

2006-0832
State of New Hampshire v. Otniel Lopez

The court on October 31, 2007, issued the following order:

The defendant, Otniel Lopez, appeals his conviction for aggravated felonious sexual assault. He contests the sufficiency of the evidence and argues that the trial court erred in failing to sequester the victim’s mother and in refusing to allow him to recall her during his case. We affirm.


ZONING VARIANCES –
PLAINTIFFS’ STANDING

2006-0171
Michael Scanlan & a. v.
Town of Hampton

The court on October 31, 2007, issued the following order:

The motion to dismiss plaintiffs Daniel and Pauline Traficante and to strike their brief is granted in part. Because the Traficantes have transferred the property that provided them standing to pursue this zoning appeal, we dismiss them as parties. Inasmuch as the remaining plaintiffs expressly joined in their brief, however, we deny the request to strike it. We grant the motion of the remaining plaintiffs to change the caption of this appeal, which shall now and hereafter be Michael Scanlan & a. v. Town of Hampton.

The plaintiffs appeal from an order of the superior court upholding a decision of the Town of Hampton Zoning Board of Adjustment (ZBA) to grant several variances. "Factual findings of the ZBA are deemed prima facie lawful and reasonable and will not be set aside by the superior court absent errors of law, unless the court is persuaded by a balance of probabilities on the evidence before it that the ZBA decision is unreasonable." Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102, 105 (2007) (quotation omitted). We uphold the trial court’s order unless it is unsupported by the evidence or legally erroneous. See id. Finding no error upon this record, we affirm.


CIVIL LITIGATON –
ARBITRATION AWARD

2007-0018
Robert Bruce v.
New American Homes, LLC

The court on November 5, 2007, issued the following order:

The defendant, New American Homes, LLC, appeals from orders of the superior court denying its motion to vacate an arbitration award upon the basis that it failed to submit an arbitration transcript, and denying its motion to reconsider and to stay the ruling upon the motion to vacate pending the preparation of a transcript. The defendant argues that the trial court "unreasonably and arbitrarily refused to allow [it] to submit a record," thereby depriving it of due process and the right to a remedy. We reverse and remand.


CRIMINAL – DEADLY WEAPON - WITNESS CREDIBILITY

2006-0726
State of New Hampshire v.
Richard P. Dooley

The court on November 8, 2007, issued the following order:

The defendant, Richard P. Dooley, appeals three convictions for felony criminal threatening with a deadly weapon. He contends that the trial court erred when it allowed the State to argue that a knife is a per se deadly weapon and when it did not allow him to introduce evidence that two of the victims were allegedly impaired by cocaine at the time of the offenses about which they testified. We affirm.


PELRB – UNION CERTIFICATION

2007-0114
Appeal of State Employees’ Association of New Hampshire, Inc.

The court on November 14, 2007, issued the following order:

The State Employees’ Association of New Hampshire, Inc., SEIU, Local 1984 (SEA), appeals an order of the Public Employee Labor Relations Board (PELRB) addressing certification petitions filed by the New England Police Benevolent Association, Inc. (NEBPA). The SEA argues that the PELRB erred in:

(1) denying its motion to consolidate this case with a pending unfair labor practice case against the State of New Hampshire (State); and

(2) determining that a staff sergeant position should be included in a supervisory personnel bargaining unit. We affirm.


REAL ESTATE – EASEMENT -
INJUNCTIONS

2006-0136
Gregory N. Meyer & a. v.
Francis Chase & a.

The court on November 28, 2007, issued the following order:

The petitioners, Gregory N. Meyer, Karen Meyer and Ronald Larrivee, appeal

the superior court’s order on their petition for declaratory judgment and permanent injunctive relief. We affirm in part, reverse in part and remand.


EVICTION – MOBILE HOME

2007-0111
Lakes Region Mobile Home Park Cooperative v. Steve Farrell & a.

The court on December 5, 2007, issued the following order:

The defendants, tenants in the Lakes Region Mobile Home Park Cooperative, appeal an eviction order issued by the Laconia District Court. We affirm.


CRIMINAL – DUI - DEFINITIONS

2006-0263
State of New Hampshire v.
Carol A. Natoli

The court on December 7, 2007, issued the following order:

The defendant, Carol A. Natoli, appeals her conviction for driving while under the influence of intoxicating liquor, see RSA 265:82 (2004) (repealed 2006; current version at RSA 265-A:2 (Supp. 2006)), arguing that the trial court erred by finding that: (1) she was in actual physical control of the vehicle in which she was found; and (2) she drove the car on a "way" for purposes of RSA 259:125 (Supp. 2006).

On August 21, 2007, the court issued an order affirming the defendant’s conviction. On September 26, 2007, the court granted the defendant’s motion for reconsideration and assigned this case for argument before a 3JX panel. See Sup. Ct. R. 12-D. Having considered the parties’ arguments, briefs and the appellate record, we affirm.


PROTECTIVE ORDER –
STALKING - EVIDENCE

2007-0012
Erika Rock v. Gary J. Michaels

The court on December 7, 2007, issued the following order:

The respondent, Gary J. Michaels, appeals a protective order issued by the trial court pursuant to RSA 633:3-a. He argues that the trial court erred in concluding that he engaged in a course of conduct directed at the victim that reasonably placed her in fear for her personal safety. We affirm.


CRIMINAL – AFSA

2006-0715
State of New Hampshire v. John Martel


The court on December 13, 2007, issued the following order:

The defendant, John Martel, appeals his conviction for aggravated felonious sexual assault. He argues that the trial court erred in: (1) precluding cross-examination of the victim about her alleged prior drug use as the cause of her admission to Hampstead Hospital, and a false prior recantation of sexual assault; and (2) denying his motion to dismiss based upon the State’s failure to establish the victim’s age as stated in the indictment. We affirm.


CONTRACT BREACH -
CONSTRUCTION

2006-0823
Mark S. Decesare v. Paul E. Skipper

The court on December 14, 2007, issued the following order:

The defendant, Paul E. Skipper, appeals from an order of the superior court after a bench trial awarding the plaintiff, Mark S. Decesare, $75,000.00 for breach of contract relating to the construction of a log cabin. He argues that the trial court erred by: (1) finding that he breached an obligation to

design and construct a foundation meeting the plaintiff’s requirements; (2) allowing testimony as to damages estimates prepared by individuals who did not testify; and (3) finding the amount of the plaintiff’s damages to be $75,000.00. We affirm in part, vacate in part, and remand.


CHILD SUPPORT MODIFICATION

2006-0707 and 2007-0095
In the Matter of Lucille J. Rossino and Joseph A. Rossino

The court on December 19, 2007, issued the following order:

The respondent, Joseph A. Rossino, appeals an order of the trial court addressing the modification of his child support obligation. He argues that the trial court erred in: (1) assigning an effective date of October 2006 to the modification of his child support obligation; (2) ordering him to pay $7000 from his workers’ compensation settlement; and (3) ruling that he had failed to establish fraud. We affirm.


CRIMINAL – AFSA- EVIDENCE

2007-0151
State of New Hampshire v.
Kerry W. Kidd

The court on December 21, 2007, issued the following order:

The defendant, Kerry W. Kidd, appeals his conviction for aggravated felonious sexual assault. He argues that the trial court erred in admitting: (1) a photograph taken five years before trial; and (2) opinion testimony that he had wrestled with the victim in an inappropriate manner. We affirm.


HABITUAL OFFENDER –
COMPETING HARM DEFENSE

2007-0139
State of New Hampshire v.
William Docos

The court on December 21, 2007, issued the following order:

The defendant, William Docos, appeals his conviction for operating a motor vehicle while certified as a habitual offender. He argues that the trial court erred by precluding him from raising a competing harms defense. See RSA 627:3 (2007). We affirm.


EVICTION – COMMERCIAL LEASE

2007-0059
Michael French and Zoë French v. Daniel Cilley and Kate Cilley

The court on December 21, 2007, issued the following order:

The appellants, Daniel and Kate Cilley, appeal an order of the Concord District Court granting the RSA chapter 540 eviction action of the respondents, Michael and Zoë French. We affirm.


ESTATE LAW –
UNDUE INFLUENCE

2007-0048
In re Estate of Frederick W. Whittemore

The court on December 26, 2007, issued the following order:

The petitioner, Alison Hersey, appeals from an order of the Hillsborough County Probate Court (Cloutier, J.) ruling that the testator, Frederick W. Whittemore, did not have the testamentary capacity to execute his will of May 29, 2001, and that his will was a product of undue influence. We affirm.

Orders issued by the 3JX panels of the New Hampshire Supreme Court are without precedential effect and may not be cited for any proposition of law or as an example of the proper resolution of any issue. Editor’s Note: Due to a shortage of space, we have fallen behind in publishing 3JX orders issued by the NH Supreme Court. In order to catch up, we are publishing the first paragraph of each order and providing a link to the non-precedental orders on the Judicial Branch web site.

Five years ago, we first broached the idea of summarizing rather than publishing the text of these opinions, and, in response to members’ requests, we continued publishing the entire text of these three- to five-page orders. Consider the use of these summaries an experiment. Let us know what you think. Write the Editor at dwise@nhbar.org.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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