Judicial Branch, State of New Hampshire

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

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

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

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

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

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
          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

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
          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

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,* Arnold          v.   Fleet Bank, NH and Peter

          Appell,* Arnold          v.   Fleet Bank, NH and Peter
          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

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,    
          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
          Gordon A. Rehnborg, Jr.       Andrew D. Dunn for the
                                        Barry M. Scotch for Mr.

          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.
                                        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,   
          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.,    
          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