New Hampshire Supreme Court
Cases Accepted - January 1998
* denotes appealing parties
96-795 Powers, James, Patricia v. City of Portsmouth*
DeGrandpre, Charles Belle Isle Partners
DeGrandpre, Carol Trust, Sisters of
Welsh, Donald Welsh, Providence
Jr., Roberta Smith, Robert P. Sullivan
Dean Smith, Peter for city
Vandermark, Jameson Thomas R. Watson
French, Robin Najar for trust
Ralph R. Woodman, Jr. Mark E. Beliveau for
Sister of Providence
Municipal regulation - planned unit development;
numerous issues including failure of court to defer to
planning board; whether planned unit development was
contrary to zoning ordinance, whether number of units
exceeded allowable density, whether mainland and island
parcels are contiguous, whether land between low water
mark and high tide line may be used to satisfy lot area
requirements; cross-appeal - whether court failed to
recognize inherent flexibility that a municipality has
to approve planned development unit
96-848 State of NH v. Townes,* Bruce R.
Attorney General James E. Duggan
Kenneth L. Perkes
Attempted first degree assault, criminal threatening,
simple assault; whether defendant was falsely arrested;
whether superior court erred in refusing to set aside
verdict; whether defendant knowingly and intelligently
waived right to counsel; whether dismissal required
because police destroyed exculpatory evidence and State
presented perjured testimony; sufficiency of evidence;
whether court erred by granting State's motion to
reconsider sentence; double jeopardy
97-028 Hurd, Jessie v. Valliere,* Daisy Mae
Carol Williams, and Peter P. Waiveris, Jr.
John A. Valliere Peter V. Millham for
Elaine L. Baillargeon Ms. Valliere
Undue influence, confidential relationship - action to
set aside will, gift, and joint tenancies; numerous
issues including proper application of law as to undue
influence, application of burden to establish absence
of undue influence, admission of evidence; whether
checking accounts were joint, exclusion of witness to
execution of deed, admission of psychiatrist's
testimony
97-319 State of NH v. Gonzalez,* Geraldo
Attorney General James E. Duggan
Paul Haley
Possession of controlled drug with intent to sell,
conspiracy to possess controlled drug with intent to
sell - illegal search; whether defendant had standing
to contest search of package; whether court erred in
upholding validity of anticipatory search warrant
97-493 Whitney,* Erich C., v. Sobel, Jonathan W.,
Holly E.M. Whitney Valerie A. Sobel,
Jay E. Printzlau Charles F. Hutton,
Ethyl T. Hutton,
heirs of Emma C. Boyd,
Town of Derry, and
unknown persons
Lawrence M. Edelman
Quiet title - default; failure to vacate default
entered due to failure to answer interrogatories where
defendants suffered no prejudice; whether court delay
in providing notice prejudiced the plaintiff
97-528 Kirkpatrick,* Carl and v. Town of Peterborough,
Sheila, David Weir, Michael A. Salera,
Richard Estes, Susan Marcia Salera
Phillips Hungerford, John J. Ratigan
Edward C. Kelley, Ferris Donald E. Gartrell
B. Urbanowski, Mary
E. Monahon
Carolyn W. Baldwin
Municipal regulation - variance; whether plaintiffs
have standing to appeal grant of variance
97-576 Thompson,* Greg R., M.D., Appeal of
(board of registration in medicine)
Stanton E. Tefft for petitioner
Attorney General
Psychiatrist license revocation - numerous issues
including violation of administrative rules, permitting
surprise witness to testify; whether board erred by
finding new facts despite stipulation of facts and
without notice to licensee that new facts would be
developed, denial of cross-examination by board's legal
advisor, conflict of interest between board's legal
advisor and prosecutor, violation of due process right
to discovery and subpoenas, sufficiency of evidence,
denial of continuance, Right-to-Know Law violation,
bias, whether sanction is unreasonable, denial of
request to voir dire board members
97-585 Schneider, Tracy v. Plymouth State College,*
Charles G. Douglas III University System of
Susanna G. Robinson New Hampshire
Joseph M. McDonough III
Dyana J. Crahan
Sexual harassment - numerous issues including
application of strict liability standard to claim of
quid pro quo harassment, application of constructive
notice/negligence standard to claim of hostile
environment; whether plaintiff's confidentiality
requests insulate defendants from liability, erroneous
jury instructions, allowing jury to award enhanced
compensatory damages, discretionary function immunity
97-627 Quinn Brothers, Inc.* v. Whitehouse, David d/b/a
Edward D. Philpot, Jr. East Coast Rent-A-Fence
Paul C. Bordeau
Contract damages - whether jury verdict awarding
contract damages was erroneous since contract was not
completed and no quantum meruit claim was pled or
argued
97-630 Estate of Edythe R. Jenkins
Charles A. Griffin for Darby Jenkins Healey*
J.P. Nadeau for Cynthia Hickson
Removal of executrix - whether executrix improperly
used estate funds, arbitrarily chose not to include
promissory note as estate asset, and improperly
distributed uninventoried property to two legatees;
whether court erred in removing executrix and
appointing special administrator
97-698 Town of Henniker by W.H. v. Houghton,* Carl E.
Crane, Animal Control Michael J. Sheehan
Officer
pro se
Recovery of costs of caring for seized animals -
whether court erred by shifting cost of an unsuccessful
criminal prosecution to the defendant
97-717 State of NH v. Gonzalez,* Geraldo
Attorney General James E. Duggan
Stuart M. Hurowitz
Possession of controlled drug with intent to sell and
conspiracy - motion for new trial; numerous issues
including failure to hold status of counsel hearing,
ineffective assistance of counsel, whether trial
counsel refused to allow defendant to testify; whether
trial counsel effectively admitted guilt to lesser
included offense, whether State was required to prove
all eight overt acts alleged in indictment, failure to
object to bad acts evidence and improperly certified
out-of-State conviction
97-764 State of NH v. Fairbanks,* Joshua
Attorney General James E. Duggan
Paul G. Schweizer
Second degree murder - sufficiency of evidence
97-772 State of NH v. Bishop,* Frederick J.
Attorney General William A. Mulvey, Jr.
Mark L. Sisti
Felonious sexual assault - allowing victim to testify
as to his own age; sufficiency of the evidence;
allowing prosecutor to question defense witness about
conversation they had prior to witness taking the stand
97-783 Hoyt,* Floyd W., N.D., Appeal of
(board of naturopathic examiners)
John M. Lewis for Mr. Hoyt
Attorney General
License denial - whether applicant met license
requirements for naturopathic license; whether board
erred in ruling that applicant must pass competency
based exam; equal protection
97-785 Robinson,* Carole E., N.D., Appeal of
(board of naturopathic examiners)
John M. Lewis for Ms. Robinson
Attorney General
License denial - whether applicant met license
requirements for naturopathic license; whether board
erred in ruling that applicant must pass competency
based exam; equal protection
97-807 Provencher,* Jennifer L. v. Jacques, Gregory J.
(Jacques) pro se
Althea L. Froburg
Post-divorce proceedings - child custody, contempt;
whether plaintiff was in contempt of permanent
stipulation for moving with child to Florida; whether
court erred in changing custody of child and by
applying incorrect legal standard; whether court erred
in awarding costs to defendant
97-809 State of NH v. Hollis,* Robert
Attorney General James E. Duggan
Caroline L. Smith
Dorothy E. Graham
Aggravated felonious sexual assault - sufficiency of
evidence; whether court erred by instructing jury that
the element of "touching of the genitalia" did not
require State to prove that defendant had direct
contact with skin of victim's genitals
97-810 First Amherst Financial v. Runyon, L. Phillips III,
Group* Primary Bank f/k/a
Marc W. McDonald Peterborough Savings
Bank, A.G. Edwards and
Sons
Richard C. Gagliuso
Guarantor liability - promissory note; whether
defendant waived statute of limitations; whether
bankruptcy proceedings tolled statute of limitations;
whether defendant reaffirmed debt; estoppel by conduct
97-829 Laconia School Board,* Appeal of
(public employee labor relations board)
Paul T. Fitzgerald, for the petitioner
James F. Allmendinger, for Educational Assistants of
Laconia, NEA-New Hampshire
Attorney General
Unfair labor practice - whether school district bound
by cost item in collective bargaining agreement that it
misunderstood and failed to submit to legislative body
for approval; whether legislative body ratified said
cost item; whether board erred in allowing alternate
chairman who had not participated in original hearing
to participate in ruling on motion for rehearing
Note: The court has consolidated 97-319 and 97-717.