New Hampshire Supreme Court
Cases Accepted - February 1998
* denotes appealing parties
97-375 Gonsalves,* David, Petition of
pro se
Attorney General
Criminal restraint - whether court erred in refusing to
allow defendant, who is represented by appointed
counsel, to file pro se motion for new trial grounded
upon ineffective assistance of counsel
97-399 Savage,* Donald E. Jr., Appeal of
(workers' compensation appeals board)
Shawn E. Nichols for Mr. Savage
Scott A. Ewing for William Henry Steel Company
Attorney General
Workers' compensation - whether board applied incorrect
burden of proof; whether employer is responsible for
medical costs incurred prior to board's decision for
employer when hearing officer had ruled for employee;
failure to determine methodology for calculating
average weekly wage; reliance by board upon lay
analysis of medical evidence; failure to rule on
requests for findings and rulings
97-467 Woodard,* Frances P., Appeal of
(workers' compensation appeals board)
Shawn E. Nichols for Ms. Woodard
Jeffrey H. Karlin for NH Health and Human Services
Attorney General
Workers' compensation - whether board erred on remand
from supreme court by redesignating previous findings
of fact as "non-facts" absent new evidence; failure to
provide analysis and factual support for decision on
remand; whether board erred in not finding legal and
medical causation; failure of board to issue decisions
in a timely manner
97-573 Regalado,* Ana, Appeal of
(workers' compensation appeals board)
Ralph A. Barbagallo, Jr. for Ms. Regalado
Eric Bernard for McCord Winn Textron
Attorney General
Workers' compensation - whether claimant proved she was
suffering from work-related injury; reliance by board
upon lay opinion rather than upon expert medical
evidence
97-649 Merrill,* Dana v. Sumski, Lawrence P.
Mary Notaris Peter B. Beeson
Legal malpractice - whether plaintiff is required to
have expert testimony regarding advice received as to
the dischargeability of student loans
97-651 Cassady,* Geoffrey O. v. Cassady, Carolyn
Shawn J. Sullivan Brackett L. Scheffy
Divorce - failure of court to properly value
plaintiff's interest in certain real estate and in the
New Hampshire Retirement System
97-652 O'Sullivan,* Jean C. v. O'Sullivan, Dennis D.
John A. Macoul Ralph Stein
Divorce - failure to rule on requests for findings and
rulings; denial of motion for new trial based on new
evidence of undisclosed earnings and financial matters;
inadequate award of alimony and health insurance
97-662 In re Kevin E.*
James E. Duggan for Kevin E.
Daniel Duckett
Attorney General
Juvenile proceedings - criminal mischief; sufficiency
of evidence to support jurisdiction in district court
for Southern Carroll County
97-707 In re Jesse F.
Nancy S. Tierney for the petitioner-grandmother*
Michael A. Fuerst for the mother
Hanford L. Auten, III for NH Health and Human Services
Guardianship of a minor - whether grandmother's home
should be viewed as separate from the mother's home;
sufficiency of evidence; failure to consider wishes of
minor's biological father; failure to appoint guardian
ad litem
97-708 Laminated Papers, Inc.* v. Henry, Robert R.
Irvin D. Gordon Jack Bryan Little
Fraudulent misrepresentation, conversion - whether
court had personal jurisdiction over defendant
97-730 Hoffman, Gail S. v. Hoffman,* Walter E. Jr.
Robert A. Shaines Linda S. Johnson
Divorce - numerous issues including failure to include
pension plan in overall computation of assets;
consideration of time parties lived together before
marriage; improper standard in awarding alimony;
whether court erred in awarding equal distribution of
property; failure to award defendant personal
belongings owned prior to marriage
97-738 Pittsfield School District,* Appeal of
(public employee labor relations board)
Jay C. Boynton for petitioner
James Allmendinger for Ed. Assoc. of Pittsfield
Attorney General
Unfair labor practice - whether employer's plan for
evaluating employees is a mandatory subject of
bargaining
97-755 Portland Natural Gas Transmission System, Maritimes
& Northeast Pipeline, LLC,* Appeal of
(site evaluation committee)
James L. Kruse for Portland Natural Gas
Robert P. Cheney for Maritimes & Northeast Pipeline
Edward A. Haffer for Maritimes & Northeast Pipeline
Stanley Judge for Town of Shelburne
Mark Beliveau for Don Robie
Claire Lamm, pro se
Attorney General
Natural gas pipeline construction - certificate of site
and facility; whether federal law preempts State
authority to regulate construction or operation of
interstate natural gas pipelines; unlawful application
of State's authority under Clean Water Act; imposition
of unreasonable construction, safety, design and
inspection standards; unconstitutional taking of
property rights
97-771 Kempf* L.P., Trustee of v. Town of Bedford, Town of
the Starfire Realty Bedford Zoning Board of
Trust, D.D. Laliberte, Adjustment
Trustee of the TMB Realty Barton L. Mayer
Trust, Anthony Mesiti,
Trustee of the Mesiti
Family Trust
Paul R. Kfoury, Sr.
Municipal regulation - variance; dismissal of appeal
due to lack of standing; cross-appeal - whether court
erred in denying first motion to dismiss when it ruled
that the party filing the motion for rehearing, and not
filing an appeal in superior court, was acting as agent
of the plaintiffs
97-787 Asmussen, Kerry v. Commissioner, NH
Peter G. Callaghan Department of Safety*
and Director, NH
Division of Motor
Vehicles
Attorney General
Declaratory relief - administrative license suspension
proceedings; standing; separation of powers; whether
court erred by granting equitable relief when
intervenors had adequate remedy at law; whether court
erred by ordering hearing examiners to testify
regarding their administrative decisions; sufficiency
of evidence; whether statements of assistant
commissioner were rules; whether supervision and
training of hearing examiners interfered with their
independence; whether department must promulgate rule
to comply with unappealed superior court order; whether
court erred in ordering defendants to pay attorney's
fees
97-791 State of NH v. Allen,* William
Attorney General Erland C.L. McLetchie
Suspended sentence - whether court erred by extending
suspended sentence an additional two years beyond
notice originally given to defendant; whether court has
ability to impose sentence on class A misdemeanor such
that the sentence does not expire until more than two
years from the date of initial sentencing hearing
97-836 In re Michael R.*
James E. Duggan for Michael R.
Charles A. Russell
Attorney General
Felonious sexual assault - juvenile proceeding; whether
language in juvenile petitions met constitutional
requirements; sufficiency of evidence of accomplice
97-837 State of NH Department of Transportation,* Appeal of
(public employee labor relations board)
Attorney General for the State
Ward P. Freeman for SEIU Local 1984
Michael C. Reynolds for SEA
Unfair labor practice - whether board exceeded its
authority and erred in interpreting RSA 237:12 relative
to exemption from tolls; whether authority to allow
toll-free use of turnpike is managerial policy matter
and exempt from negotiations; timeliness of grievance
97-838 Kerry D.*, Petition of
Elliott Berry for Kerry D.
Marilyn Billings McNamara for Kerry D.
Kenneth P. Glidden for Christopher C.
Wayne Moynihan, GAL
John Mazella for DCYF
Attorney General
Habeas corpus - whether district court exceeded its
jurisdiction by depriving petitioner of legal custody
of her child based on petition alleging abuse only by
father; failure to inform petitioner of consequences of
consent order
97-842 State of NH v. Marable,* Keith
Attorney General James E. Duggan
Nancy DeAngelis
Sales of marijuana - denial of motion to suppress
evidence seized by member of judicial branch acting at
request of police officer; whether State proved consent
to wire tap; authentication of phone conversation;
allowing State to present blow-up of transcript during
closing argument that court had not allowed into
evidence; admission of misleading evidence of contents
of wiretapped conversation; denial of bail pending
appeal
97-860 Powell, Cheryl L. v. Catholic Medical Center,*
Ronald Caron Dr. Lynn Curtis, Dr.
David Lewis
Robert E. Murphy Jr. for
Catholic Medical Center
Peter W. Mosseau for Dr.
Curtis
Failure to warn hospital patient of dangerous patient -
whether RSA 329:31 preempts common law failure-to-warn
claim; whether plaintiff required expert testimony to
define duty to warn; admission of evidence of patient's
post-assault conduct; erroneous jury instructions
97-884 State of NH v. Hoag,* Kenneth
Attorney General James E. Duggan
Jane-Holly Weintraub
Charles A. Bookman
Aggravated felonious sexual assault, felonious sexual
assault, criminal restraint, kidnapping - numerous
issues including denial of in camera review of records,
discovery issues, whether Miranda waiver and statements
were voluntary, consolidation of indictments,
evidentiary issues, failure to strike jurors, denial of
mistrial, sufficiency of evidence, double jeopardy
97-888 State of NH v. Gould,* Allen D.
Attorney General Stephen T. Jeffco
Felonious sexual assault - denial of motion to dismiss
second trial after mistrial on double jeopardy grounds;
denial of interlocutory appeal; denial of mistrial at
second trial; sufficiency of evidence
97-891 Brockway, Margaret, v. MagTech Recreational
Individually and as Products, Inc.* Jerry's
Executrix of the Estate Sport Center, N.E.,
of Richard Brockway, Jerry's Sport Center,
and Estate of Richard Inc.
Brockway Irvin D. Gordon for
B.J. Branch MagTech
Robert C. Dewhirst for
Jerry's Sport Center,
N.E., and Jerry's Sport
Center, Inc.
Interlocutory appeal, products liability, personal
jurisdiction - whether defendant-manufacturer had
sufficient minimum contacts with NH and/or purposely
availed itself of the privilege of conducting
activities in NH
97-892 State of NH v. Cort,* Alan
Attorney General Stephen T. Jeffco
First degree assault - sufficiency of circumstantial
evidence; whether State required to show that expert
testimony of amount of force required to cause infant's
injuries is generally accepted in scientific community
and reliable; whether State's expert was qualified to
give testimony regarding effect of von Willebrand's
disease on infant's potential for sustaining injury
97-905 Bank of New Hampshire* v. Scanlon, Edward J.,
Garrett Mulvey
Earl L. Kalil, Jr. Lawrence M. Edelman for
Michelle LaCount Mr. Scanlon
Douglas C. Gray for Mr.
Mulvey
Commercial loan - disclosure requirements; whether
plaintiff violated provisions of RSA 399-B:2; whether
remedy of depriving plaintiff of recovery of deficiency
due after foreclosure was abuse of discretion
97-906 State of NH v. Caron,* David
Attorney General David Horan
Arson - failure to suppress results of search warrants;
sufficiency of circumstantial evidence