New Hampshire Supreme Court
Cases Accepted - January 1999
* denotes appealing parties
97-914 State of NH v. Denyou,* Corey
Attorney General James E. Duggan
Lucy A. Martin
Criminal trespass - whether criminal trespass is lesser
included offense of the charged burglary
98-409 Simplex Technologies, v. Town of Newington
Inc.* Peter J. Loughlin
Anna Barbara Hantz Ralph Woodman, for
Henry B. Stebbins intervenor Equitable
Life Assurance Society
of the United States &
Fox Run Mall Joint
Venture
Municipal regulation - whether court applied proper
standards in determining if plaintiff entitled to
variance; whether zoning ordinance prevents owner from
making any reasonable use of land; whether court erred
in comparing subject property with other commercial
properties rather than other industrially zoned
properties; discriminatory enforcement; whether
enforcement of ordinance was constitutional
98-426 St. Pierre,* Donna v. Elgert, Stephen, Dr.
Edward B. Mulligan IV W. Kirk Abbott
Medical malpractice - whether court erred in granting
motion for directed verdict despite testimony from a
physician concerning standard of care; whether
plaintiff presented sufficient evidence to allow jury
to reach verdict in her favor
98-427 In re Estate of Peter Gould
Robert B. Donovan, for Maxine Gould*
Ruth Ansell, for Dexter Gould
Anu Mullikin, for estate of Peter Gould
James G. Ogorchock, for Andrew Gould
Ancillary administration - validity of will; whether NH
law or Massachusetts law applies; effect of 1978
marriage on validity of 1976 will; whether NH law
regarding revocation and implied revocation invalidate
1976 will
98-451 Jenks,* Edward F., v. Menard, Gerard Jr.,
Edith Record Jenks Margaret Menard,
R. Peter Decato Deborah S. Olsen
Barry C. Schuster
Quiet title - whether dismissal of first suit was on
the merits; whether RSA 508:10 permits second suit
98-452 Newton,* Stephen, Appeal of
(compensation appeals board)
A.G. O'Neil, Jr., for the claimant
Paul Salafia, for the employer
Attorney General
Workers' compensation - whether date of injury for
cumulative trauma was date of first medical treatment
or date injury first caused limitations on work
capacity
98-460 Bell,* Norma v. Liberty Mutual Insurance
Paul R. Cox Company
Matthew B. Cox Gregory A. Moffett
Unfair insurance practices - whether violation of RSA
chapter 417 constituted violation of Consumer
Protection Act; whether insurer's conduct constituted
bad faith; whether demand for arbitration must be
"hostile" to constitute effective initiation of
arbitration process
98-461 State of NH v. Hill,* Paul
Attorney General James E. Duggan
Ted Lothstein
Driving while intoxicated, subsequent offense, false
report to law enforcement, driving after revocation,
disobeying an officer - failure to suppress fruits of
violation of right against self-incrimination; failure
to dismiss charge of false report to law enforcment;
comment by prosecutor upon defendant's exercise of his
right to remain silent
98-474 In re Adam R.
Elizabeth Cazden, for the father*
Brian Germaine, for the mother
David J.T. Burns, GAL
Termination of parental rights - whether court may
terminate rights of incarcerated parent absent finding
that termination is necessary to provide stable home or
is in child's best interests; sufficiency of evidence
98-510 CNA Insurance Company,* Appeal of
(compensation appeals board)
Michael R. Mortimer
Eugene D. Loo
Patricia C. Fraizer
James E. Owers
Attorney General
Workers' compensation - cumulative trauma condition;
determination of date of injury; which insurer is on
the risk
98-630 Nault,* Jacqueline S., v. N & L Development Company
Paul A. Nault Cynthia L. Fallon
Thomas J. Cote
Post-judgment interest - whether plaintiffs are
entitled to interest on judgment for period between
verdict and date of payment
98-634 Costello-Sherman, v. Sherman,* David P.
Angela Paula J. Green
Janina Stodolski
Post-divorce proceedings - visitation; whether court
erred in construing defendant's rights under divorce
decree as visitation instead of as custodial rights;
failure to apply Perreault standard; failure to find
strong possibility of harm to child before modifying
custody order
98-635 City of Manchester,* Appeal of
(public employee labor relations board)
Daniel D. Muller, Jr.
Vincent A. Wenners, Jr.
Attorney General
Unfair labor practice - whether PELRB exceeded its
authority in ruling that city violated Right-to-Know
Law; whether Right-to-Know Law requires recording of
minutes of collective bargaining strategy session
between board of mayor and aldermen (board) and its
chief negotiator; whether board may reject contract
agreement in a collective bargaining strategy session;
whether board must publicly apprise union of specific
items rejected and reasons therefor
98-643 In the Matter of Gearldean (Bell) Floros and Curtis
L. Bell*
Michael J. Ryan
Clare M. Hinkley
Post-divorce proceedings - military pension; whether
court erred by modifying Missouri divorce decree by
increasing plaintiff's share of defendant's military
pension; whether court order constitutes unlawful
modification of property distribution
98-644 Fowler,* Jennie v. Margate, Inc.
Fowler,* Jennie F. v. DiLeonardo International,
Robert K. MeKeel Inc., James S. Piscopo
General Contractor, Inc.
James C. Wheat
Robert C. Dewhirst
Richard P. McCaffrey
Negligence - whether eight-year statute of repose in
RSA 508:4-B violates equal protection; whether tort
claim can be barred by statute of repose before tort
claim accrues; whether statute of repose applies to
construction projects completed before its enactment;
whether statute of repose barred claim against
possessor of property for negligence in its repair,
maintenance, or upkeep
98-645 Mooney, Michael L. v. Nationwide Mutual
Nicholas D. Brown Insurance Company*
Stephen J. Schulthess
Uninsured motorist coverage - whether policy excludes
coverage for full-time rural route postal employee as
activity constituting "carrying property for a fee";
failure to consider plaintiff's misrepresentations as
basis for denying coverage; failure to consider cross-
petition for recission
98-646 Breau,* Eleanor, Appeal of
(compensation appeals board)
Mark Rufo
Donna Head
Attorney General
Workers' compensation - whether claimant has "returned
to work" when claimant has no contract for payment and
does not receive payment
98-648 State of NH v. Lutz,* Sean
Attorney General Richard N. Foley
Possession of marijuana - whether pre-arrest refusal to
submit to field sobriety tests can be considered as
evidence to find probable cause to arrest
98-661 Couture, Jennifer v. The Connecticut Indemnity
Andrew Dunn Company*
Timothy G. Kerrigan
Uninsured motorist coverage - application of
endorsement limited to vehicles principally garaged in
Tennessee to the question of whether coverage existed
for vehicle princially garaged in New Hampshire;
whether endorsement makes policy ambiguous; whether
material issues of fact were in dispute such that court
erred in granting summary judgment
98-672 Land Acquisition, L.L.C.,* Appeal of
(board of land and tax appeals)
Douglas L. Ingersoll
Barton Mayer
Attorney General
Motion to enforce settlement - whether board has
jurisdiction to enforce settlement; absence of signed
settlement agreement; whether board erred by enforcing
settlement; whether board has jurisdiction to award,
and whether it properly awarded, attorney's fees to
town
98-687 Conn Med Dissolution v. New Hampshire Medical
Trust Malpractice Joint
Russell F. Hilliard Underwriting Association*
Michael F. Aylward
Medical malpractice insurance - res judicata; whether
suit was timely under savings statute (RSA 508:10);
whether insurer may sue another insurer under theory of
"quasi-contract" or as third party beneficiary of
insurance policies issued years earlier
98-692 Kaklamanos, James, Esq. v. Heller,* Peter, R. Susan
James B. Hobbs Horsley
Michael S. Owen
Collection of attorney's fees - default; denial of
motion to strike default after defendants failed to
attend hearing; whether court applied "as justice may
require" standard more favorably to an attorney than to
pro se litigants
98-693 Wocciak, Edward v. McNeil, Robert, Mark
David C. Engel Shepcaro,* William
Shaheen, trustee,
Michael Ailion
Daniel Laufer, for
Shepcaro
Terrie Harman, for Ailion
Robert McNeil, pro se
Partnership - whether court erred in granting summary
judgment as to partner's liability for partnership debt
and attorney's fees absent affidavits or evidence to
support claim
98-696 Gauthier,* Richard v. Gauthier, Kathleen
Jennifer A. Eber (Warchol)
Richard C. Follender
Post-divorce proceeding - child support; whether court
interpreted divorce decree so as to double count
plaintiff's commissions in calculating child support;
whether court erred in holding plaintiff in contempt
for failure to provide pay stubs and profit sharing
information; failure to order back due child support to
be placed in trust for secondary education
98-710 Armaganian,* Mark and Theodore Korontjis, Appeal of
(personnel appeals board)
James W. Donchess
Attorney General
State employee - discipline; whether board erred in
finding conspiracy between troopers to obtain overtime
compensation; failure of board to consider provisions
of collective bargaining agreement; admission of flawed
polygraph examinations evidence
98-712 State of NH v. Wallace,* Leroy
Attorney General James E. Duggan
Stuart M. Hurowitz
Burglary - whether officer had reasonable and
articulable suspicion to stop defendant; whether
probable cause existed that defendant committed
criminal trespass; whether officer needed warrant to
arrest defendant; failure to exclude expert evidence
not provided to defendant until day of trial; failure
of State to satisfy test for admission of scientific
evidence; sufficiency of evidence
98-718 State of NH v. Fortier,* Roger A.
Attorney General Stephen T. Jeffco
Aggravated felonious sexual assault - denial of motion
to dismiss indictments; sufficiency of evidence that
defendant used his authority to coerce victims into
submitting
98-723 State of NH v. Goodwin,* David P. Sr.
Attorney General James E. Duggan
Rebecca A. Ivry
Aggravated felonious sexual assault, felonious sexual
assault, attempted aggravated felonious sexual assault
- whether court gave appropriate jury instruction as to
pattern of sexual assault and time frame; failure to
poll jury on question of unanimity as to which alleged
instances of sexual contact occurred; whether sexual
contact through bed covers satisfies definition of
sexual contact; admission of victim's prior consistent
statements
98-727 State of NH v. Desmarais,* Ronald
Attorney General James E. Duggan
Hampton W. Howard
Felonious sexual assault - whether court erred by
instructing jury to disregard any reference to expected
testimony of witness who was not called to testify
98-730 Manchester Transit Authority,* Appeal of
(department of employment security)
Diane Murphy Quinlan
Mark T. Broth
Stephanie Stergiou-Ferro
Attorney General
Unemployment compensation benefits - part-time school
bus operators; whether school bus operators are
eligible for unemployment compensation between terms;
whether statutory "between terms" disqualification
applies to Manchester Transit Authority school bus
drivers; whether Manchester Transit Authority is a
service organization for an educational institution
98-735 EnergyNorth Natural Gas, v. The Continental Insurance
Inc.* Company, Netherlands
Bruce Felmly Insurance Company
Michael J. Quinn Michael F. Aylward
Barry Needleman Joseph M. Sano
Commercial liability insurance - environmental
contamination clean-up; whether term "accident" is
ambiguous where ongoing, continuous damage is alleged;
whether legal business activities resulting in
unforeseeable damage are "inherently injurious";
failure to consider intent of party to the contract;
whether material facts were in dispute
98-738 Strategic Timber Trust, v. Campbell,* Charles
Inc., Strategic Timber Eugene, Benjamin
Operating Company, W. Griffith, III
Strategic Timber Partners, Jeffrey R. Howard
L.P., Strategic Timber William S. Hewitt, Jr.
Investments, L.L.C.
Thomas H. Richards
Subpoenas duces tecum - enforcement of Texas subpoenas;
whether court erred by imposing requirement that
discovery information be available through no other
means than subpoena and by concluding that other means
were available; whether defendants established that the
information sought by subpoenas was reasonably
calculated to lead to discovery of admissible evidence
98-760 Dunn,* Joanne, Appeal of
(compensation appeals board)
Leslie H. Johnson
George Lindh
Attorney General
Workers' compensation - whether board erred in finding
surgery was not reasonable or medically necessary;
whether statute only requires that treatment be
reasonable and related to injury to be compensable;
failure to give appropriate weight to opinion of
treating physician
98-761 State of New Hampshire,* Appeal of
(public employee labor relations board)
Attorney General
James W. Donchess, for NH State Troopers Association
Unfair labor practice - entitlement of State Trooper to
overtime and mileage for appearing in court on day off
as witness on behalf of private party in civil case;
whether grievance procedure governed dispute; whether
board misconstrued collective bargaining agreement;
whether record contains evidence that trooper was
served with valid subpoena to appear in court; whether
board's decision allows troopers to unilaterally decide
to appear as witnesses, thereby intruding on State's
managerial prerogatives
98-762 State of NH v. Cantin,* Euclide
Attorney General James E. Duggan
Brian P. McEvoy
Driving after certification as habitual offender -
failure to dismiss on ground that department of safety
erred in deeming defendant a habitual offender;
allowing State to have access to potential jurors'
criminal records in picking jury; admission of official
records absent testimony from keeper of the records;
denial of bail pending appeal