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.