Judicial Branch, State of New Hampshire

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 

          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

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

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        
                                        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

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

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