Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - December 1997

  
          * denotes appealing parties

95-634    State of NH                   v.   Buckley,* Gerald
          Attorney General                   James E. Duggan
                                             Nicholas K. Holmes

          Kidnapping, aggravated felonious sexual assault - whether
          motion for new trial based on newly discovered evidence is
          barred because it was filed more than 3 years after
          conviction; due process


97-038    Karch,* Karen C.              v.   Bay Bank FSB, 
          Gordon R. Blakeney, Jr.              R. Elaine Gordon,
                                               John Doe and
                                               Jane Doe
                                             Douglas L. Ingersoll

          Wrongful discharge, illegal eavesdropping, invasion of    
          privacy, infliction of emotional distress - whether writ
          states a claim for wrongful discharge or violation of
          wiretapping statute; whether emotional distress claims barred
          by workers' compensation law; whether invasion of privacy
          claim may be brought only against person who intercepted
          private communications; denial of motion to amend writ;
          whether discovery barred by privilege against self-
          incrimination


97-350    Galloway, John and Brenda     v.   Plaistow, *Town of, 
          Peter F. Kearns                      Town of Plaistow        
                                               Planning Board
                                             Sumner F. Kalman
          
          Municipal regulation - whether "use" under RSA 674:53 is
          limited to the town in which the plant is located, depriving
          an adjoining town of the statute's protection; whether
          defendant town is not protected under its zoning ordinance
          from abuses originating on another portion of plaintiff's
          parcel of land located in adjoining town; whether plaintiff
          agreed to submit to defendant town planning board's
          jurisdiction; cross-appeal - whether plaintiffs are entitled
          to attorney's fees, costs and interest; whether appeal is
          frivolous or in bad faith, entitling plaintiffs to double
          costs and attorney's fees


97-362    Flynn,* Steven P., Appeal of
          (workers' compensation appeals board)
          Christopher J. Seufert for Mr. Flynn
          Andrew Merrill for Watts Regulator/Webster Valve
          Attorney General

          Workers' compensation - whether injury was work-related; did
          board err in reducing benefits and denying vocational
          rehabilitation benefits based on employee having been
          terminated from light-duty position due to attendance problems


97-397    Dufresne, Barbara J.          v.   Kenna,* Bruce E.
           and Henry J.                      Richard F. Johnston
          Janina Stodolski         
          Kathleen Mulcahey-Hampson

          Legal fees - piercing corporate veil; whether court erred in
          holding defendant-attorney personally liable in fee dispute
          where defendant was acting as employee of professional
          association; statute of limitations; misapplication of burden
          of proof in unjust enrichment claim


97-491    Hulsey,* Angela, Appeal of
          (workers' compensation appeals board)
          Roy W. Tilsley, Jr. for Ms. Hulsey
          Jeffrey Karlin for Holland Managed Care, Inc.
          Attorney General

          Workers' compensation - whether wrist injuries were causally
          connected to employment; whether board substituted lay opinion
          on causation for uncontroverted medical opinions; denial of
          motion for rehearing based on newly available medical evidence
          concerning a surgery occurring after initial hearing


97-498    Colonial Village of           v.   Manchester, City of
            Manchester, Inc.                   Westbrook                
          Emile Bussiere                       Condominium
                                               Association*
                                             Thomas Arnold for City
                                             Maureen Manning for         
                                               Westbrook
                                             Dean D. Eggert for          
                                               Westbrook   

          Public highway - discontinuance; whether RSA 231:48 permits
          city to vacate its vote to discontinue road as part of
          settlement; whether court erred in precluding abutter who had
          petitioned to discontinue road from opposing settlement that
          vacated discontinuance; denial of due process to abutter;
          municipal estoppel 


97-522    Morgan,* William H. R.Ph., Appeal of
          (board of pharmacy)
          William R. Loftus for Mr. Morgan
          Attorney General

          License suspension - pharmacist; numerous issues including
          limits on discovery, due process violations, judicial and
          official notice, adopting erroneous standard of "willfulness,"
          improper incorporation of federal regulations and statutes,
          finding violations other than those charged, whether board's
          inspection procedures are unconstitutionally vague, whether
          search of pharmacy was unlawful, whether sanctions imposed
          were unreasonable


97-533    T.F. Moran, Inc.              v.   Championship Golf        
          Michael D. Hatem                     Enterprises, LLC
                                               and CGE Shattuck, LLC*
                                             David M. Tower 
               
          Breach of contract - survey and engineering services;
          sufficiency of evidence that contract existed with or was
          ratified by defendant CGE Shattuck; sufficiency of evidence as
          to whether defendant Championship Golf was acting as agent for
          CGE Shattuck


97-553    Merrill Lynch Futures,        v.   Sands,* David S.
            Inc.    
          John J. LaLiberte                  Thomas Quarles, Jr.
          Bryan G. Killian                   David E. Shellenberger

          Arbitration - numerous issues including whether
          withholding of discovery constitutes "misconduct" under RSA
          542:8,whether withheld documents were material, whether
          arbitration panel committed plain error, failure of superior
          court to sanction plaintiff, failure of superior court to hold
          evidentiary hearing


97-560    State of NH                   v.   Dorval,* Charles Jr.
          Attorney General                   James E. Duggan
                                             Cathy J. Green
                                             James Moir

          First degree murder - numerous issues including admissibility
          of statements made by defendant to police and to jailhouse
          informant, removal of juror, exclusion of admissions of third
          party, sufficiency of jury instructions, pretrial closure of
          courtroom


97-579    Griffith,* John P.            v.   Griffith, Joan H.
          Kevin W. Miner                     William E. Brennan

          Divorce - whether award of permanent alimony equal to half of
          plaintiff's net income was error; whether court erred in
          ruling that remarriage or cohabitation of defendant with
          another would be merely a factor to be considered in any
          motion to modify alimony


97-586    New England Heart Institute,* Maine Medical Center, Appeal
            of
          (health services planning and review board)
          William J. Donovan for New England Heart Institute and Maine  
            Medical Center
          Eugene M. Van Loan, III for Concord Hospital
          John Malmberg for Columbia Portsmouth Regional Hospital
          Attorney General

          Certificate of need - cardiac surgery; whether regulations for
          cardiac surgery are legally deficient; whether board erred by
          failing to determine need exists prior to issuing request for
          applications; whether certificates of need issued were
          fundamentally inconsistent with prior certificate of need
          issued to third party; whether board member unlawfully
          participated in proceedings before recusing himself


97-610    Wyatt,* Sara A.               v.   Maryland Casualty Company
          A.G. O'Neil, Jr.                     and Universal Under-     
                                               writers Insurance 
                                               Company
                                             Andrew D. Dunn for Maryland
                                               Casualty Co.           
                                             Brian T. McDonough for
                                               Universal Underwriters
                                               Insurance Co.

          Uninsured motorist coverage - whether plaintiff was entitled
          to stack coverage; whether policy limitations as construed by
          the trial court are void under RSA 264:15


97-612    Saiauski,* Lasandra           v.   State Farm Mutual
          D. Michael Noonan                    Automobile                
                                               Insurance Company
                                             Doreen Connor

          Automobile insurance - medical payments coverage; whether
          plaintiff's psychological injuries were caused by automobile
          accident; whether court erred in finding plaintiff was
          released to return to full duty work


97-613    State of NH                   v.   Ricci,* Robert A. Jr.
          Attorney General                   Stephen T. Jeffco

          Driving while intoxicated, disobeying police officer - whether
          court erred in denying motion to suppress


97-615    Souza,* Paul J.               v.   Andorra Forest Limited
          Joseph S. Hoppock                    Partnership
                                             Laurence W. Getman
                    
          Landowner immunity - snowmobile accident; whether defendant is
          immune under RSA 215-A:34, II, for injuries suffered from
          snowmobile collision with metal chain intentionally hung to
          block access to trail


97-616    Reilly,* Kathleen, Appeal of
          (workers' compensation appeals board)
          Brian C. Shaughnessy for Ms. Reilly
          Patricia C. Fraizer for Matthew Thornton Health Plan, Inc.
          Attorney General

          Workers' compensation - total disability; whether board
          improperly allocated burdens of production and proof; whether
          denial of total disability benefits was against substantial
          weight of evidence; failure to accord 
          substantial weight to opinions of treating physicians


97-620    Walker,* Jessica, Appeal of
          (workers' compensation appeals board)
          John G. Richardson for Ms. Walker
          James Owers for Libery Mutual Insurance Company
          Attorney General

          Workers' compensation - causation; whether denial of benefits
          was unreasonable in light of treating physician's opinion that
          back injury was work-related; whether board made erroneous
          findings of fact; failure of board to explain significance of
          its reference to pre-existing condition


97-621    Adkins, Douglas V. and Porrazzo,* Violetta M., In the
            Matter of
          Thomas W. Cowie and Elizabeth Cazden for Ms. Porrazzo
          John D. Cameron for Mr. Adkins
          Quentin Blaine, GAL

          Post-divorce proceedings - child custody; whether court
          incorrectly applied legal standard of Perreault v. Cook;
          whether court erred in considering eight-year-old child's
          expressed preference concerning custody; sufficiency of
          evidence of findings concerning harm resulting from child's
          residence with mother


97-625    Cunningham,* Thomas M. Jr.    v.   Ceravolo, Louise,
          Michael R. Callahan                  individually, as trustee
                                               of the Carol L.          
                                               Cunningham Revocable     
                                               Trust Dated December 28, 
                                               1994, and as executrix of
                                               the Estate of Carol       
                                               L. Cunningham 
                                             Mark S. Moeller
          
          Declaratory judgment - whether conveyance by Mrs. Cunningham
          of her interest in real estate to revocable trust during
          divorce proceeding was effective to change ownership interest
          from joint tenancy to tenancy in common; whether evidence was
          sufficient to establish that Mrs. Cunningham had conveyed
          personal property in contravention of superior court orders


97-647    New England Telephone and     v.  Rochester, *City of
            Telegraph Company
          Jack B. Middleton                  Danford J. Wensley

          Utility licenses - obligation to pay property taxes; whether
          utility license issued pursuant to RSA 231:161 is a "lease or
          other agreement" within RSA 72:23, I; whether public good
          required amending utility licenses to make utility responsible
          for payment of property taxes for government property that it
          uses


97-684    State of NH                   v.   Ryan,* James E.
          Attorney General                   James E. Duggan
                                             Robert C. Wunder

          Imposition of suspended sentence - where State moved to impose
          suspended sentence based on probation violation, whether due
          process violated by reliance upon conduct occurring before
          defendant was placed on probation; allowing State to rely on
          evidence previously excluded by court; whether motion to
          suspend was untimely violating due process and speedy trial
          rights


97-688    Binda,* Jeffrey               v.   Royal Insurance Company
          Francis G. Murphy, Jr.             Andrew D. Dunn
          Eugene R. Quinn, Jr.               Brian T. McDonough 
                                             Mark S. Gearreald for       
                                               intervenors Robert Mark
                                               and Cathleen Mark

          Insurance coverage - declaratory judgment; whether letter   
          from insurance company triggered commencement of six-month
          limitations period in RSA 491:22 


97-700    State of NH                   v.   Hatt,* Guay
          Attorney General                   James E. Duggan
                                             Mona Igram

          Armed robbery - whether an unloaded gun is a deadly weapon
          under RSA 651:11, II-g; sufficiency of evidence that defendant
          was actually armed with a deadly weapon


97-702    State of NH                   v.   Bailey,* Gerald
          Attorney General                   Stephen C. Brown

          Misdemeanor sexual assault - admission of prior bad acts;
          admission of hearsay


97-703    Chickering,* Cindy            v.   Sanbornton, Town of
            and Phillip,                     Peter V. Millham   
            William and
            Tina McCarthy            
          Paul T. Fitzgerald       

          Municipal regulation - special exception; whether court
          misconstrued the terms "Home Occupation/Home Industry";
          whether machine shop is permissible at residential property as
          an accessory use; whether machine shop is customarily
          incidental to residential use of property


97-712    NH Department of Health & Human Services,* Appeal of
          (workers' compensation appeals board)
          Jeffrey H. Karlin for NH Department of Health and Human        
            Services
          Robert E. Fisher for Ms. Sirviris-Allen
          Attorney General

          Workers' compensation - whether employee suffered work-related
          injury; whether mental stress caused by criticism of work
          performance constitutes accidental injury arising out of
          employment; whether employee suffers from major depression
          arising out of employment; whether employee is entitled to
          benefits at diminished earning capacity rate


97-715    State of NH                   v.   Young,* Paul
          Attorney General                   James E. Duggan     
                                             Anthony McManus

          Felonious sexual assault - admission of hearsay statements of
          victim as substantive evidence; whether court erred in
          instructing jury to disregard evidence related to DCYF
          investigation; exclusion of testimony of defendant's
          daughters; improper jury instructions; limitation upon cross-
          examination of victim


97-729    City of Manchester,* Appeal of
          (public employee labor relations board)
          Thomas R. Clark for City of Manchester
          Gabriel Dumont for Teamsters Local No. 633
          Attorney General

          Public employee collective bargaining agreement - whether CBA
          provision is contractual status quo provision rather than
          judicial status quo; whether cost items (step and longevity
          increases pursuant to alleged evergreen clause) were approved
          by board of mayor and aldermen; whether PELRB erred in finding
          that in approving CBA, board of mayor and aldermen were
          required to raise no new monies


97-742    State of NH                   v.   Batchelder,* Norman
          Attorney General                   James E. Duggan
                                             Ronald R. Bessette

          Conspiracy to distribute controlled drug, possession with
          intent to distribute controlled drug - whether arrest warrant
          was supported by probable cause; whether there existed
          independent admissible evidence of existence of conspiracy;
          whether court erred in admitting hearsay statements


97-854    Karch, Karen C.               v.   Bay Bank FSB*, 
          Gordon R. Blakeney, Jr.              R. Elaine Gordon,
                                               John Doe and
                                               Jane Doe
                                             Douglas L. Ingersoll

          Interlocutory appeal involving wrongful discharge, illegal
          eavesdropping, invasion of privacy, infliction of emotional 
          distress, collateral estoppel, res judicata, workers'
          compensation - whether writ barred by ERG, Inc. v. Barnes,
          collateral estoppel, res judicata, or statute of limitations;
          whether writ states a claim of intentional infliction of
          emotional distress, violation of the wiretap statute, wrongful
          discharge, or invasion of privacy; whether invasion of
          privacy, emotional distress, or violation of wiretap statute
          claims are barred by workers' compensation law  





Note:  The court has consolidated 97-038 and 97-854.