Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted - March 1997

         * denotes appealing parties

     96-556    O'Brien,* Lawrence         v.  BayBank Boston, NA,      
                                                Boynton, Waldron,       
                                                Doleac, Woodman &       
                                                Scott, PA, and      
                                                Ralph R. Woodman, Jr.    
               James Winston                  Ellen E. Saturley    
               Malpractice, negligence, breach of contract - duty of
               attorney conducting foreclosure to nonclient bidder;
               whether bank breached contract; whether bank was negligent
               in conducting first foreclosure sale where defect required
               second foreclosure

     96-569    State of NH                v.  Loubier,* Leon     
               Attorney General               J. P. Nadeau    
                                              Albert E. Scherr

               Second degree assault - ineffective assistance of counsel;
               failure of State to prove that firearm was a deadly weapon
               in the manner in which it was used; whether defendant
               prejudiced by jury instruction regarding use of deadly
               force in defense of a person

     96-726    Madden,* Darryl, Appeal of     
               (workers' compensation appeals board)          
               Michael C. Reynolds for Mr. Madden
               Paul L. Salafia for City of Keene              
               Attorney General                                         

               Workers' compensation - causation; sufficiency of expert
               opinion based on expert statements by unqualified persons;
               delay in issuing decision; paucity of findings

     96-731    Wood,* David, Michelle     v.  Town of Greenland  
                 Wood, James Glennon,                         
                 Stephanie Glennon,                           
                 Horace Lyndes, Sue                           
               Bernard Pelech for Mr. and     Peter Loughlin       
                 Ms. Wood and Mr. Glennon
               Ms. Glennon, pro se                            

               Mandamus, declaratory judgment - whether court erred in
               holding that selectmen properly adopted "wait and see"
               attitude towards zoning violations; whether there was
               substantial compliance with notice provisions for town
               meeting vote to amend zoning ordinance; whether plaintiffs
               required to prove voting fraud in addition to insufficient
               notice in order to set aside town meeting vote

     96-768    Appell,* Leonard           v.  McNamee, James, Sullivan                                          and Gregg, Fleet Bank -                     
                                                New Hampshire, and                    
                                                Brenda Calamari    
               pro se                         Jill Blackmer for Fleet        
                                                Bank and Ms. Calamari
                                              Geoffrey Vitt for Atty
                                                McNamee and Sullivan
                                                and Gregg

               False arrest, malicious prosecution, abuse of process -
               failure of trial judge to recuse himself due to conflict of
               interest and personal bias; whether court erred in
               construing prior court order and in granting directed

     96-778    State of NH                v.  Maddocks,* Kenneth 
               Attorney General               James E. Duggan      
                                              James D. Gleason     
                                              Elizabeth Cazden

               Driving while intoxicated, second offense - whether police
               had reasonable suspicion to stop defendant's vehicle

     96-786    State of NH                v.  Merritt,* Kevin    
               Attorney General               James E. Duggan     
                                              Barbara A. Bradshaw
               Fraudulent use of credit card, accomplice liability -
               sufficiency of evidence; failure to exclude testimony of
               witnesses who State had not revealed would be called to

     96-787    State of NH                v.  Fischer,* David    
               Attorney General               James E. Duggan      
                                              Joseph C. Malfitani
               First degree assault, witness tampering - numerous issues
               including admission of letters written by defendant to
               victim prior to trial, admission of letter written by
               victim on issue of credibility, jury instruction on "false
               exculpatory evidence," improper closing by prosecutor,
               denial of continuance of sentencing to allow defendant to
               interview and subpoena witnesses

     96-789    State of NH                v.  Dodge,* Raven 
               Attorney General               James E. Duggan      
                                              Theodore M. Lothstein

               Burglary - unlawful warrantless arrest; prejudicial jury
               view; admission of evidence that phone lines were cut one
               hour before burglary; sufficiency of evidence; denial of
               mistrial after State argued that defendant failed to
               challenge certain evidence presented by State

     96-814    State of NH                v.  Prevost,* David    
               Attorney General               James E. Duggan      
                                              D. Chris McLaughlin

               Armed robbery - suggestive photo arrays; speedy trial; jury
               instructions regarding eyewitness testimony and armed
               robbery indictment; requiring defendant to wear leg
               shackles during trial

     96-823    State of NH                v.  Tallard,* Henri P. 
               Attorney General               James E. Duggan
                                              Mark Larsen     

               Attempted escape, assault - sufficiency of evidence;
               imposition of extended sentence based on conviction of
               assault by a prisoner under RSA 642:9; whether guard at
               county correctional facility is law enforcement officer
               covered by RSA 651:6(h); sufficiency of court's findings
               for imposing extended term of imprisonment

     96-826    State of NH*               v.  Fish, Arnold, and  
                                                Heather Matson
               Attorney General               James H. Moir for                                                 
                                                Mr. Fish
                                              Rodkey Craighead, Jr.
                                                for Ms. Matson

               Possession of cocaine - whether court erred in granting
               motions to suppress due to lack of probable cause to issue
               search warrants

     96-828    State of NH                v.  Brown,* Michael    
               Attorney General               James E. Duggan      
                                              Richard C. Guerriero      

               Criminal threatening - prosecutorial misconduct; denial of
               motion to dismiss where county attorney violated Superior
               Court Rule 112 by revealing privileged information about
               defendant to victim

     96-831    DeButts,* Robert           v.  Laroche, Ron and   
                                                Rochester School   
               Robert E. Fisher               William Mulvey, Jr.                                               for Mr. Laroche     
                                              Dyana J. Crahan for 
                                                School District

               Personal injury action - dismissal; whether superior court
               was authorized to dismiss action based on failure of
               plaintiff's counsel to attend case structuring conference;
               whether superior court abused its discretion in dismissing
               case when failure to appear was due to error on part of
               counsel's secretary; application of accident, mistake or
               misfortune standard

     96-832    State of NH                v.  Main,* Mark 
               Attorney General               James E. Duggan    
                                              Robert E. Fisher

               Aggravated felonious sexual assault - admission of prior
               bad acts; failure to adequately instruct jury on consent;
               sufficiency of evidence; whether defendant denied due
               process by State's reference to alleged offense as rape,
               and by State's reference to defendant as a liar; allowing
               State to ask defendant to comment on the truthfulness of
               other witnesses

     96-847    State of NH                v.  Williams,* Jason   
               Attorney General               James E. Duggan                                                                     Daniel Duckett

               Reckless conduct - allowing State to cross-examine
               defendant about recent arrest; whether class B misdemeanor
               of willful concealment is crime of dishonesty under Rule
               609(a)(2); sufficiency of evidence where State failed to
               prove gun was loaded

     97-006    Simpson,* Brenda m/n/f     v.  Goffstown Hardware, Inc.
               Michael Boisvert
               Thomas Craig                   Andrew D. Dunn
               Products liability - liability of seller; sale of carbon
               dioxide cartridge to minors; whether hardware store has
               common law duty to prevent entrustment of carbon dioxide
               cartridge to inexperienced or immature user; whether fact
               that RSA 644:14 makes it illegal to sell an air rifle to a
               minor is evidence of negligence on part of seller of carbon
               dioxide cartridge, a component part of an air rifle;
               whether seller's breach of duty not to entrust cartridge to
               inexperienced or immature user is proximate cause of
               injuries suffered by person injured by air pistol powered
               by cartridge fired by user   

     97-009    Fereshetian, Geraldine A.  v.  Crosby,* Larry D.
               Mark D. Fernald                Edward W. Richards

               Homestead exemption - lien; whether defendant is entitled
               to claim his homestead right in proceeds if home is sold;
               whether defendant can be held in contempt for failure to
               sell homestead to pay lien in light of bankruptcy discharge

     97-017    State of NH                v.  Tinkham,* Frederick L.
               Attorney General               Bruce E. Kenna

               Unlawful sale of controlled drug - failure to suppress
               written statement obtained as a result of warrantless
               search by school principal; whether school principal
               required to give Miranda warnings under circumstances of
               case; whether confession was given knowingly, intelligently
               and voluntarily by defendant

     97-021    State of NH                v.  Panaggio,* Lawrence
               Attorney General               Anthony F. DiPadova, Jr.

               Kidnapping, criminal threatening, second degree assault -
               whether defendant was subject to interrogation or its
               functional equivalent for purposes of Miranda warnings

     97-023    Pilcher, Paul S., Admin-   v.  Concord General Mutual
                 istrator of Estate of          Insurance Company*
                 Jacqueline Preston
               Claude T. Buttrey              Doreen F. Connor

               Homeowners liability insurance coverage - whether reckless
               manslaughter verdict is equivalent of inherently injurious
               behavior; whether engaging in conduct certain to cause
               injury is equivalent to engaging in conduct with conscious
               disregard of causing substantial injury or death

     97-024    Lisbon Regional School District,* Appeal of
               (public employee labor relations board)
               Bradley F. Kidder for school district
               James F. Allmendinger for Lisbon Teachers Assoc., NEA-NH
               Attorney General

               Unfair labor practice - reduction to part-time teaching
               position; whether reduction from full-time to part-time
               position was a reduction in force; statute of limitations;
               whether board's order interferes with school board's right
               to determine programs, methods, organizational structure
               and selection of personnel; failure to rule on requests for
               findings of fact and rulings of law

     97-026    Kinetic Systems, Inc.*     v.  McClier Corporation, The;
                                                Celltech Biologies, Inc.,
                                                Pease Development                     
                                                and State of NH
               Thomas J. Pappas               Thomas Donovan for McClier
               Glenn H. Haese                   Corp.
                                              Donald J. Williamson for 
                                                Celltech Biologies
                                              Attorney General
               Mechanic's lien, breach of contract, quantum meruit, unjust
               enrichment - whether court erred in dismissing case for
               improper venue; dismissal of action against defendants who
               did not move for dismissal

     97-039    State of NH                v.  Simmons,* Robert
               Attorney General               James E. Duggan
                                              Joanne M. Stella

               Driving after habitual offender certification - sufficiency
               of evidence of identity; admission of evidence of
               intoxication after dismissal of DWI charge

     97-042    Johnson,* C. William       v.  Town of Atkinson
               Peter M. Solomon               Sumner F. Kalman
                                              Craig N. Salomon for
                                                intervenors, William and
                                                Samuel Little

               Municipal regulation - subdivision approval; whether
               planning board had jurisdiction to act on subdivision that
               did not conform to cluster development provisions of zoning
               ordinance; proper interpretation of local conservation
               commission approval requirement; application of buffer

     97-043    Johnson,* C. William       v.  Town of Atkinson, William
                                                and Samuel Little
               Peter M. Solomon               Sumner F. Kalman for town
                                              Craig N. Salomon for
                                              intervenors, William and
                                              Samuel Little

               Municipal regulation - variance; whether hardship existed
               in nonconforming lot; whether financial hardship supported
               issuance of variance from frontage requirement of zoning

     97-044    Moseley,* Jack S. and      v.  City of Lebanon
               William A. Baker               Laurence F. Gardner

               Municipal regulation - violation of zoning ordinance;
               whether court erred by allowing City to expand the
               certified record and denying plaintiff's motion to do the
               same; exclusion of evidence of selective enforcement of
               zoning ordinance and of laches

     97-048    Mundaca Investment Corp.   v.  Febba,* Doris M., Thomas G.
                                                Scurfield, Linda L.
               Paul C. Bordeau                Howard B. Myers
               Trusts - liability of trustees for debts of trust; failure
               of court to consider mortgages together with underlying
               notes to determine borrower's identity; whether form of
               defendants' signatures on notes was ambiguous; whether
               material dispute of fact existed as to parties' intent

     97-051    State of NH                 v. Stewart,* Gerald L.
               Attorney General               James E. Duggan
                                              George H. Ostler

               Second degree murder - withdrawal of guilty plea; whether
               claim of ineffective assistance of counsel waived attorney-client 
               privilege; failure of court to consider all required
               factors in denying motion to withdraw plea; reliance upon
               prior offer of proof and statements contained in motion to
               suppress; whether defendant presented fair and just reason
               to withdraw plea; allowing prosecutor to inquire into
               privileged communications

     97-053    Tausanovitch,* Peter,      v.  Town of Lyme, and Myrone
                 Kelly Tausanovitch, and        Crowe
                 The Lime Zoning Equity 
               Daniel P. Luker                Carolyn W. Baldwin for
                                              Barry C. Schuster for
                                                Mr. Crowe

               Municipal regulation - building permit; whether
               administrative appeal was timely; failure to apply correct
               legal standard to motion to dismiss; dismissal of
               injunctive action under RSA 676:15

     97-054    State of NH                v.  Dahood,* Michael
               Attorney General               James E. Duggan
                                              Amy Vorenberg

               Driving while intoxicated - admission of refusal to take
               blood test absent any administrative finding that defendant
               had refused test; allowing State Toxicologist to testify
               that defendant would have been impaired based solely on
               police reports absent any blood or breath tests; allowing
               expert to testify despite State's failure to comply with
               Superior Court Rule 35(f)

     97-057    Federal Financial Co.      v.  Morrow,* Warren G.
               Steven A. Solomon              Arpiar G. Saunders, Jr.

               Financial institution bond policy - whether payment made on
               a note pursuant to a bond policy cannot constitute payment
               made "on behalf of a party obliged to pay the instrument"
               pursuant to RSA 382-A:602(a)

     97-064    State of NH                v.  Finsen,* Mark
               Attorney General               George H. Ostler

               Manufacturing controlled drug, felonious use of firearms -
               failure to quash felonious use of firearm indictment where
               indictment did not allege nexus between firearm and
               underlying felony; admission of oral testimony to
               supplement search warrant affidavit; whether affidavit set
               forth probable cause to search residence

     97-071    Gorman, Sarah Jane         v.  National Grange Mutual 
                                                Ins. Co.*
               Mark D. Morrissette            William L. Tanguay

               Uninsured motorist coverage - whether insured must plead
               that she was struck by uninsured motorist and provide
               factual basis to support that allegation; whether insured
               is "legally entitled to recover" from negligent co-employee
               where insured received workers' compensation benefits and
               is therefore barred from suing co-employee

     97-073    State of NH                v.  Gotsch,* Gerald
               Attorney General               James E. Duggan
                                              Joseph Malfitani

               Second degree murder - admission of defendant's confession;
               exclusion of testimony and notes of defendant's mental
               health counselor; exclusion of jurors on grounds that they
               knew people with mental illness; admission of testimony of
               victim's wife

     97-074    State of NH                v.  Chandonet,* Lawrence
               Attorney General               James E. Duggan
                                              John E. Durkin

               Driving after certification as habitual offender - whether
               police had reasonable articulable suspicion to justify
               investigatory stop of defendant

     97-084    State of NH                v.  Minor,* Elbridge
               Attorney General               James E. Duggan
                                              Charles F. O'Leary

               Assault by a prisoner - sufficiency of the evidence;
               whether court gave erroneous jury instruction after jury
               indicated it was deadlocked

     97-142    Brockway, Richard, Estate  v.  Al's Gun and Reel Shop, Inc.
                 of, By Its Executor            and Davidson Distributors,
                 Margaret Brockway and          Inc.
                 Margaret Brockway, 
               B.J. Branch                    Alfred J.T. Rubega for Al's
                                                Gun and Reel Shop
                                              William L. Tanguay for
                                                Davidson Distributors

               Products liability, strict liability - liability to
               bystander; whether the estate of a bystander killed by an
               allegedly defective product, a rifle, can maintain a cause
               of action for strict liability if the bystander was neither
               a user nor consumer of the product; whether the spouse of
               the bystander, who arguably satisfies the requirements of
               Corso v. Merrill, can maintain a strict liability action
               for emotional distress; interlocutory transfer