Judicial Branch, State of New Hampshire

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

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

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
                                        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

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 

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.
          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.
          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