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
Lyndes
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
verdict
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
testify
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
District
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
Authority
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
requirements
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
ordinance
97-044 Moseley,* Jack S. and v. City of Lebanon
Kathryn
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.
Kendall
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
Group
Daniel P. Luker Carolyn W. Baldwin for
town
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,
Individually
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