New Hampshire Supreme Court
Cases Accepted - November 1997
* denotes appealing parties
95-835 Hull, Roderick C. v. Plymouth, *Town of,
and Kathleen NH Municipal
Assoc. Property-
Liability Insur-
ance Trust, Inc.,
International
Surplus Lines
Insurance Co. and
Underwriters at
Lloyd's, London
Leslie C. Nixon David A. Garfunkel
Uninsured motorist coverage - workers' compensation bar;
whether workers' compensation law bars employee or his
spouse from recovering uninsured motorist benefits from
his employer where employee was injured at work and
received workers' compensation benefits
96-810 Ahrendt, Ethel M., v. Peterborough Savings
individually and by Bank, n/k/a Primary
Jane Batts under a Bank
durable power of
attorney*
David J. KillKelley Mark D. Fernald
Negligence, breach of fiduciary or confidential
relationship, breach of contract - whether bank
breached duty of care to elderly customer by allowing her
to make extraordinary handwritten withdrawal transactions
while under the influence of others who were exploiting
her
97-393 Collins,* Kevin, Kevin v. City of Manchester
Berry, John Begin, Todd
T. Boucher, Richard
Brennan, Richard
Charbonneau, Stephen
Coco, Robert Cunha,
Lloyd Doughty II,
Richard Ell, Timothy
Feliciano, Thomas
Gonzales, Paul Grugan,
Tyrone Guyse, Jeffrey
Harrington, Cornelius
Joyce, Robby Leathers,
Scott Legasse, Richard R.
Mello, Ronald Mello,
Robert Oxley, Scott
Page, Gregory Pepper,
Daniel Rivard, Eugene
Robinson, Brian Santos,
Robert Scanlon, Andrew
Snowdon, James Soucy,
James Tareco, Nathanael
Taveras, Kristen Taylor,
Enoch Willard
Francis G. Murphy Robert J. Meagher
Public employees - contract enforcement, civil rights
violations; whether court erred in dismissing claims for
compensation based on city ordinances merely because
police wages are generally a subject of an expired
collective bargaining agreement; whether three year
training agreement provisions are enforceable in contract
action in superior court; whether PELRB has exclusive
jurisdiction to address claims that City infringed right
to free association and plaintiffs' other claims
97-400 Taylor,* Richard H., Jr., Appeal of
(workers' compensation appeals board)
Richard J. Walsh for Mr. Taylor
William L. Tanguay for Southern New Hampshire Poured
Concrete, Inc.
Attorney General
Workers' compensation - whether board erred in denying
25% permanent impairment award
97-416 Tsiatsios, George, Charles v. Tsiatsios,* Janice
Tsiatsios, Paula
(Tsiatsios) Pierce
Robert J. Rabuck Matthew J. Lahey
Fraudulent conveyance - statute of limitations; failure
to name necessary party; collateral estoppel; denial of
motion to dismiss for lack of subject matter
jurisdiction, naming wrong party and impossibility of
relief; sufficiency of evidence of actual intent to
hinder, delay, or defraud plaintiffs
97-426 Millis, Wilhemina v. Fouts,* Gary
Mark D. Wiseman Dennis T. Ducharme
Negligence - admission of prejudicial and irrelevant
photographs; denial of directed verdict on issue of duty
of landlord/landowner to tenant; denial of request for
comparative negligence instruction
97-490 Langlois, John v. Pomerleau,* Alan,
Michelle Pomerleau
Gregory S. Clayton Scott A. Ewing
Negligent supervision claim - denial of directed verdict;
sufficiency of evidence where defendants had no knowledge
that their son had any dangerous propensity for playing
with matches or lighters or to start fires; cross-appeal
- whether court erred in dismissing negligence claim and
negligent entrustment claim
97-510 Keravich,* Jody v. City of Dover
Robert E. Fisher George E. Wattendorf
Infliction of emotional duress - collateral estoppel;
whether suit for infliction of emotional duress arising
from defendant's alleged actions forcing plaintiff to
resign from his job with defendant is barred by dismissal
of prior suit seeking reinstatement
97-532 Frank S.* v. Superintendent,
Hillsborough County
Department of
Corrections
Michael J. Atkins Attorney General
Habeas corpus - denial of jury trial; whether district
court had jurisdiction to impose suspended sentence of
incarceration over juvenile who was then over 17 years
old; whether plea was voluntary, knowing and intelligent;
whether seven-month sentence to adult penal facility as a
result of guilty plea to shoplifting pack of cigarettes
is cruel and unusual punishment; failure to comply with
Stapleford v. Perrin requirements
97-550 Coffey,* Frank J., Appeal of
(department of labor)
Charles G. Douglas III for Mr. Coffey
Gerald R. Prunier for Colonial Imports Corp. dba Volvo of
Nashua
Attorney General
Whistleblowers' Protection Act - reliance upon evidence
not submitted by the parties at the hearing; whether
employee was terminated for non-retaliatory reason;
whether employer had grievance procedure in place
97-551 Surge Industries Corporation,* Appeal of
(workers' compensation appeals board)
Nelson A. Raust for Surge Industries Corporation
Richard Walsh for Ms. Denton
Attorney General
Workers' compensation - failure of board to cite
competent medical evidence in support of its decision;
reliance by board upon independent records review by
physician who is not board certified as required by RSA
281-A:38; whether board made factual error
97-605 Snow,* Maxine W. v. American Morgan Horse
Association, Inc.,
Philip Dubois,
President; John
Hammer, Executive
Director; Tyler Atwood,
Registrar
Howard B. Myers Irvin D. Gordon
Fraudulent registration of horses - damages; whether
court erred in awarding as damages attorney's fees
incurred in defendant's internal investigation and
hearings process; whether collateral source rule applies
to reduce award of fees by gratuitous donations made to
defendant's legal defense fund
97-622 State of NH v. Gramstorff,* William Jr.
Patrick W. Fleming
Attorney General James E. Duggan
Felonious sexual assault - violation of right to speedy
trial; due process violation arising from pre-indictment
delay; failure to suppress tape recording of telephone
conversation between defendant and victim; denial of
motion for independent analysis of tape recording; denial
of Howard hearing concerning victim's alleged prior
consensual sexual activity
97-637 State of NH v. Jackson,* Charles
Attorney General Mark L. Sisti
Aggravated felonious sexual assault - whether prosecutor
improperly interjected himself into the proceeding as a
witness for purposes of impeachment during questioning of
a witness
97-638 Harpe,* Gregory and v. Harpe, Sally
Jennifer
Larry S. Kane Douglas S. Hatfield
Partition - sufficiency of evidence; failure to credit
plaintiffs for their expenditures towards maintaining
property; whether defendant is entitled to credit for
rent from a joint tenant absent showing of actual ouster
of exclusion by other joint tenant
97-646 State of NH v. Soldi,* Richard
Attorney General James E. Duggan
Darla S. Sedgwick
Second degree assault - admission of hearsay statements
by victim to emergency room doctor; admission of victim's
hearsay statement to police as impeachment; sufficiency
of evidence
97-656 State of NH v. Consolidated Recycling,
Inc.,* Debon Sales,
Franklin Darrel Sales
Attorney General Steven A. Bolton
Solid waste, hazardous waste - injunction; failure to
strike default; failure to consider motion to extend time
limit; failure to permit hearing on relief sought after
defendants defaulted; whether court erred in assessing
civil penalty where such penalty had not been sought
prior to default
97-663 State of NH v. Hilton,* Mark J.
Attorney General James E. Duggan
David M. Rothstein
Aggravated felonious sexual assault, kidnapping - denial
of bill of particulars; denial of motions to depose
victim and police who interviewed victim; refusal to
disclose victim's counseling records; exclusion of
witness who would testify that defendant admitted
kidnapping but denied sexual assault; sufficiency of
evidence
97-676 State of NH v. Howe,* Ryan P.
Attorney General William R. Loftus
Probation violation - denial of depositions of
complaining witnesses; quashing subpoena issued to
probation officer; whether judge improperly berated
defense counsel; exclusion of testimony; failure to allow
sufficient time for full hearing
97-686 State of NH v. Graham,* Montriville III
Attorney General Jefferson K. Allen
Aggravated felonious sexual assault - whether six-year-
old victim was competent to testify
97-690 State of NH v. Dingman,* Robert
Attorney General James E. Duggan
Caroline L. Smith
Randy Hawkes
First degree murder, conspiracy to commit murder -
whether conspiracy was lesser included offense; double
jeopardy; whether court impermissibly modified Wentworth
reasonable doubt instruction and erred in other jury
instructions; failure to suppress defendant's statements
to police; denial of due process and speedy trial rights;
whether State engaged in impermissible burden shifting
during closing argument; failure to require that
communications with alleged co-conspirator in preparation
for trial be recorded
97-748 Bolton, William, Estate v. Deveau, Thomas H.
of, by Mary C. Trovato,
Executrix*
David L. Nixon Andrew D. Dunn
Wrongful death - damages, limitation on recovery; whether
RSA 556:13, which caps damages recoverable for wrongful
death at $50,000 when decedent is not survived by spouse,
child, parent or other dependent relative, violates N.H.
or U.S. Constitutions; interlocutory transfer