New Hampshire Supreme Court
Cases Accepted - June 1997
* denotes appealing parties
96-144 In re: William A.
Michael E. Chubrich for mother*
John Tateosian for father
Patricia DeMeo Reardon, GAL
Termination of parental rights - whether court erred by
disregarding guardian ad litem's opinion that child's
best interests required that parental rights not be
terminated in absence of other evidence of child's best
interests; whether reliance upon indigent's failure to
pay minimum support to justify terminating parental
rights violates equal protection; failure of court to
participate in settlement negotiations; sufficiency of
evidence
96-300 State of NH v. Egan,* Colin
Attorney General Cathy J. Green
George Larocque
Endangering welfare of a child - motion for new trial;
whether defendant was denied right to testify on his own
behalf; ineffective assistance of counsel
96-702 State of NH v. Whiting,* Fairfield, Jr.
Attorney General Rupert J. Leeming
Driving while intoxicated - whether police dispatch
transmission was inadmissible hearsay
96-767 M.B.,* Appeal of
(workers' compensation appeals board)
Leslie C. Nixon for M.B.
Paul L. Salafia for NH Department of Corrections
Attorney General
Workers' compensation - whether board erred in rejecting
opinion of treating physician; whether expert testimony
met test of scientific reliability; denial of right to
impartial interpretation of the laws; failure to fully
and fairly weigh all the evidence; whether decision was
arbitrary
96-775 In re Baby K.
Charles F. A. Locke and Elizabeth Cazden for father*
D. Chris McLaughlin, Jr. for petitioners
Lanea A. Witkus, GAL
Termination of parental rights - due process; whether
parental rights termination hearing at which indigent and
incarcerated respondent is permitted to participate only
by telephone violates due process
96-815 Eaton,* Daniel and v. Town of Stoddard
Mary Lou
Kendall W. Lane Homer S. Bradley, Jr.
for town
Leigh D. Bosse for
intervenors, Gary and
Rebecca Oke
Municipal regulation - zoning ordinance; whether appeal
to ZBA was timely; whether complaint regarding zoning
violations filed seven years after intervenor moved to
adjacent property was timely; whether ZBA must make
specific findings of fact
97-056 State of NH v. Rundlett,* John
Attorney General James E. Duggan
Philip D. Cross
Stalking - probation violation; whether court erred in
ruling that defendant violated probation rule requiring
good behavior by consuming alcohol while on work
release when defendant had no specific rule of
probation to refrain from use of alcohol
97-090 State of NH v. Hodgdon,* Daniel
Attorney General James E. Duggan
Paul J. Haley
Aggravated felonious sexual assault - sufficiency of
the evidence
97-103 Walton,* Denise, Appeal of
(workers' compensation appeals board)
Leslie H. Johnson for Ms. Walton
Eric Falkenham for Carroll County Health & Home Care
Attorney General
Workers' compensation - failure of board to clarify
whether its decision prospectively denies medical
treatment; whether board erred by implying in decision
that future medical treatment would not be reasonable
and medically necessary; failure of board to recognize
that medical treatment need not be curative, but may be
palliative
97-106 Tsingos,* Angelos B., Appeal of
(workers' compensation appeals board)
Basilios E. Tsingos for Mr. Tsingos
Eric G. Falkenham for Empire Foods Inc. d/b/a
Renaissance Restaurant
Attorney General
Workers' compensation - whether claimant proved that
pre-existing diabetic eye disease was aggravated by
work incident; whether board erred in applying standard
of "reasonable medical certainty"; whether board erred
in concluding doctor's office notes were not submitted
when said notes were submitted at department level
hearing; whether board erred in rejecting doctor's
opinion on ground that doctor was not an
ophthalmologist
97-108 Theodore, Wayne and v. Roberge,* Robert and
Emile Bussiere Carolyn, HT Management
Corp. and Fifty-Five
Associates, Ltd.
Michael L. Alfano Steven M. Gordon
Property interest - numerous issues including reliance
upon parol evidence; whether plaintiff has a leasehold
interest in apartment free and clear of foreclosure
purchaser which will continue until property is
converted into condominium; whether court erred in
ruling that neither record owner nor mortgagee-in-
possession may evict plaintiff; whether court order
constitutes illegal de facto subdivision of the
property
97-132 Bell,* Veronica, Appeal of
(workers' compensation appeals board)
C. Nicholas Burke for Ms. Bell
Thomas A. Kelliher for Mary Hitchcock Memorial Hospital
Attorney General
Workers' compensation - exclusion of medical records;
improper allocation of burden of proof; sufficiency of
evidence of change in claimant's condition
97-139 Hilerio, Carmen v. Tilton Ford,* and Mark
Moore
pro se John G. Cronin
Default judgment - whether court erred in defaulting
defendant for not producing witness who had not been
subpoenaed and had no relevant testimony to offer;
failure to afford defendant hearing to contest damages
following default
97-140 St. Gelais,* v. State Farm Mutual Ins.
Richard, Sr. Co.
Ronald J. Caron Jeffrey P. Osburn
Uninsured motorist coverage - whether "household
exclusion" is valid exclusionary language under RSA
264:15
97-141 City of Manchester,* Appeal of
(public employee labor relations board)
Thomas R. Clark for City of Manchester
Kathy M. Sinclair for Manchester Police Patrolman's
Assoc.
Attorney General
Unfair labor practice - arbitrability of change in
discipline procedure; whether board failed to
acknowledge plain meaning of collective bargaining
agreement, depriving city of managerial prerogative;
misapplication of positive assurance test;
misapplication of status quo doctrine; reliance by
board upon incomplete transcript; failure to stay
arbitration
97-159 Neville,* Richard and v. Highfields Farm, Inc.,
September, Whitney and and Town of Conway
Charles Harvey, Edward
L. Neville
Stephen E. Weyl Randall F. Cooper
Russell F. Hilliard
Scenic roads - relocation; whether plaintiffs had
standing to challenge town meeting vote to relocate
scenic road; whether plaintiffs' claims were time-
barred; laches; whether town meeting's adoption of
warrant article to relocate scenic road was unlawful;
cross-appeal - whether town meeting and selectmen may
accept payments and indemnification from private
landowner in deciding a proposal to take municipal
action on behalf of said landowner
97-221 State of NH v. Graham,* Allan
Attorney General James E. Duggan
Daniel Duckett
Driving after certification as habitual offender -
denial of jury nullification instruction; limiting
scope of cross-examination of arresting officer
97-222 State of NH v. Gonzalez,* Alfred
Attorney General James E. Duggan
Stephen M. Bennett
Sale, possession of, and conspiracy to sell narcotic
drug - incomplete chain of evidence of cocaine
exhibits; sufficiency of evidence
97-225 State of NH v. Zielinski,* John
Attorney General James E. Duggan
Theodore M. Lothstein
Driving while intoxicated, second offense - adequacy of
jury instructions regarding reasonable doubt and
circumstantial evidence given in response to jury
questions; ruling on expert's qualifications without
first hearing from expert; exclusion of expert
testimony regarding accuracy of Intoxilyzer 5000 and
retrograde extrapolation of defendant's probable blood
alcohol concentration at time he drove; admission of
expert medical testimony from a chemist not qualified
to offer such testimony
97-228 Appell,* Leonard, v. Fleet/Norstar Financial
Dorothy Appell, Arnold Group, & a.
Appell
Appell,* Arnold v. Fleet Bank, NH and Peter
Mitrano
Appell,* Arnold v. Fleet Bank, NH and Peter
Mitrano
pro se Geoffrey Judd Vitt
Fraud, misrepresentation, breach of contract, unfair
debt collection practices, infliction of emotional
distress - numerous issues including dismissal of
defendants for lack of personal service, dismissal of
claims for emotional distress and conspiracy, whether
judge erred by recusing himself, denial of discovery,
whether judge erred by not recusing himself, jury
instructions
97-246 Raymond,* Gerard, Appeal of
(workers' compensation appeals board)
Francis G. Murphy, Jr. for Mr. Raymond
James E. Owers for Interstate Realty Management Co.
Attorney General
Workers' compensation - causation; whether board
applied its own standards, unsupported by evidence, of
amount of exposure to mold necessary to support claim;
rejection of treating physician's diagnosis; whether
employer's control over work environment, refusal to
test and spoilation of evidence created presumption in
favor of employee
97-253 Peterson,* Stephen M. v. P.K.S. Realty, Inc. d/b/a
Chelmsford Howard
Johnson Hotel
Paul A. Rinden Paige L. Tobin
Gerard J. Boyle
Slip and fall - personal jurisdiction; whether
Massachusetts hotel has minimum contacts with NH;
dismissal of case for lack of personal jurisdiction
without allowing plaintiff to complete discovery on
issue; whether defendant waived issue of personal
jurisdiction by pleading the general issue
97-255 Loranger,* David, Appeal of
(workers' compensation appeals board)
Richard J. Walsh for Mr. Loranger
Eric G. Falkenham for Unicast, Inc.
Attorney General
Workers' compensation - whether board erred in awarding
only 16% whole person permanent impairment award;
whether board erred in failing to award interest
97-257 State of NH v. Cote,* Chanel J.
Attorney General Paul J. Garrity
Aggravated felonious sexual assault - allowing State to
refresh witness's recollection; allowing victim to
testify outside defendant's presence during post-trial
hearing on motion to set aside verdict; exclusion of
public during victim's post-trial testimony; admission
of prior bad act; failure to instruct jury on accident;
allowing prosecutor to state facts not in evidence and
vouch for victim's credibility during closing argument
97-265 Peerless Insurance Co. v. Ford Motor Company,* and
Portsmouth Ford trading
as Rene Auto Sales,
Inc.
Donald J. Meyers Jon M. Nelson
Subrogation action - fire damage to motor vehicle;
whether collateral estoppel applies to findings by
motor vehicle arbitration board in this case; whether
board had jurisdiction to hear claim under RSA ch. 357-
D; whether conduct of insureds should relieve defendant
from any preclusive effect of board's findings; whether
attempt to modify board's award was time-barred
97-266 State of NH v. Smith,* Michael
Attorney General James E. Duggan
Julie M. Mann
Driving after certification as habitual offender, false
report to law enforcement - whether officer had
reasonable suspicion to stop defendant's vehicle;
whether continued seizure was permissible after officer
determined driver was not intoxicated
97-267 State of NH v. Salamanca,* Jesus
Attorney General James E. Duggan
Hillary B. Farber
Possession of cocaine - validity of officer's detention
of defendant; whether scope of detention was tailored
to its underlying justification; whether consent to
search was voluntary, knowing, and intelligent
97-269 Rainville,* Paul, Appeal of
(workers' compensation appeals board)
John P. Kallad for Mr. Rainville
Christine Friedman for Glen Builders
Attorney General
Workers' compensation - whether carrier's appeal to
board suspends award granted by hearing officer;
whether claimant's physical therapy expenses were
reasonable and necessary; whether work-related injury
of myofacial pain syndrome with sympathetic mediated
phenomena satisfies requirements for permanent
impairment award
97-272 Allstate Insurance Co. v. Armstrong,* Janeen, Ruth
Armstrong, and Gary
Sefton
Gordon A. Rehnborg, Jr. Andrew D. Dunn for the
Armstrongs
Barry M. Scotch for Mr.
Sefton
Uninsured motorist coverage - whether superior court
erred by rejecting holding of American Mutual Ins. Co.
v. Commercial Union Ins. Co., 116 N.H. 210; whether
plaintiff is required to provide uninsured motorist
coverage to each defendant so that no credit for
amounts paid by the tortfeasor is given to reduce the
uninsured motorist limits
97-274 In re Armando M.*
James E. Duggan and Amy Vorenberg for Armando M.
Attorney General
Criminal mischief - juvenile proceeding; sufficiency of
circumstantial evidence that defendant was person who
shot BB gun
97-288 Snierson,* Richard S. v. Scruton, Robert T. and
and Alexandria M. Janet E., Tate and
Foss, Inc., and
Barbara Dunkle
Robert A. Backus J. Joseph McKittrick
for Mr. and Mrs.
Scruton
Sherry M. Hieber for
Tate and Foss, Inc. and
Ms. Dunkle
Purchase of residence - rescission; whether petition
failed to state a claim; failure to afford discovery;
whether real estate brokers are subject to Consumer
Protection Act; applicability of RSA 477:4-c and :4-d
to determine standard of conduct for sellers of real
property; failure to afford a hearing or allow
plaintiffs to amend pleadings; consideration by court
of matters outside allegations in the pleadings
97-289 State of NH v. Laurent,* Kevin
Attorney General James E. Duggan
Paul Twomey
Aggravated felonious sexual assault, felonious sexual
assault - denial of due process, unanimous jury and
double jeopardy protection because evidence established
course of conduct rather than discrete events;
exclusion of evidence that a witness was able to hear
prior testimony; prosecutorial misconduct; allowing
cross-examination of defendant concerning his failure
to call witnesses
97-290 Kruzel,* Paul, Appeal of
(workers' compensation appeals board)
Robert J. Puckhaber for Mr. Kruzel
James E. Owers and Joseph W. Murphy for Paul Kruzel,
D.D.S.
Attorney General
Workers' compensation - whether board erred in finding
claimant not entitled to total disability benefits;
failure to construe statute in favor of claimant;
failure to grant motion for reconsideration
97-294 Quintey,* Scott v. Sturm, Ruger and Co.,
Inc.
Sheila Zakre Robert Jauron
Employment discrimination - failure to recall laid-off
employee due to blindness; whether superior court
applied correct burden of proof; whether employer has
burden of proving it cannot make reasonable
accommodation to needs of disabled employee; whether
human rights commission conducted adequate
investigation; grant of protective order barring
discovery; sufficiency of evidence
97-295 Estate of John Gottier,* Appeal of
(workers' compensation appeals board)
Christopher A. Bandazian for estate
William D. Pandolph for Clearwater Artesian Well
Attorney General
Workers' compensation - medical causation; sufficiency
of evidence
97-296 State of NH v. Kerwin,* Timothy
Attorney General James E. Duggan
Stuart Dedopoulos
Sexual assault - numerous issues including denial of
deposition of victim, denial of mistrial, failure to
require State to stipulate to clarification of
misleading testimony, sufficiency of the evidence,
prosecutorial misconduct, denial of new trial based on
newly-discovered exculpatory evidence
97-304 State of NH v. Atamian,* Peter
Attorney General James E. Duggan
Paul J. Bennett
Driving after certification as habitual offender,
disobeying police officer, driving while intoxicated,
second offense - denial of motion to dismiss due to
lost or destroyed evidence; denial of motion to compel;
denial of defendant's request to show jury that he wore
a retainer without having to testify
97-306 State of NH v. Sinbandith,* Bounleuth
Attorney General James E. Duggan
Gabriel Nizetic
Accomplice to sell controlled drug, attempted sale of
controlled drug, conspiracy to sell controlled drug -
whether offense of accomplice requires that defendant
act purposely rather than knowingly; denial of jury
instruction that jury must unanimously agree on act in
furtherance of conspiracy; denial of requested jury
instruction on conspiracy
97-312 Red Hill Outing Club v. Hammond,* Robert M.,
David E. Hammond, and
Elizabeth M. Hammond
Charles V. Moser David J. KillKelley
Deed - enforcement of condition subsequent; numerous
issues including whether defendant violated condition
requiring premises to be made available as ski slope,
proper standard for construing deed language, estoppel,
whether evidence supported finding that safe skiing on
hill requires base of 12 inches of snow
97-358 Thompson, Greg L., M.D. v. NH Board of Medicine*
Stanton E. Tefft Attorney General
Administrative law, disciplinary proceedings - Board of
Medicine; jurisdiction of superior court to review
interlocutory rulings of board in disciplinary
proceedings; whether N.H. Constitution prohibits
attorneys from Attorney General's office from acting as
hearing counsel and as legal counsel in disciplinary
proceedings before board; whether superior court erred
in requiring board to prove that attorneys involved in
case maintained adequate walls of separation