Judicial Branch, State of New Hampshire

New Hampshire Supreme Court
Cases Accepted April 2002

01-522 State of NH v. Joseph Todd Gamester*
Attorney General Appellate Defender
J. P. Nadeau
Reckless manslaughter – numerous issues including failure to dismiss indictment obtained 566 days after the incident; denial of motion to continue; exclusion of statements by eyewitness now deceased; failure of State to properly disclose experts; exclusion of victim's prior bad acts; erroneous jury instructions; exclusion of witnesses proffered by defendant; sufficiency of evidence
01-540 Richard A. Stefanik v. Richard A. Drowne* and Norma A. Drowne d/b/a Hathaway Home Builders
Michael S. Ritchie Sumner F. Kalman
Breach of contract, misrepresentation, unfair trade practices – sale of real estate; whether material facts were in dispute that would preclude summary judgment
02-0065 State of NH v. Robert A. Tierney, Jr.*
Attorney General
Appellate Defender
Caroline L. Smith
Aggravated felonious sexual assault, felonious sexual assault - numerous issues including failure to strike juror for cause; prohibiting cross-examination of victim regarding his playing game of Dungeons and Dragons; admission of victim's prior statements; exclusion of witnesses who would testify to defendant's character for truthfulness; denial of deposition requests; failure to sever indictments; pre-indictment delay of 12 years; failure to dismiss multiple-count indictments based on insufficiency of evidence
02-0073 Appeal of the City of Concord*
Paul F. Cavanaugh for the City
John F. Bisson for the taxpayer, Capital Court, L.L.C.
John G. Cronin for the taxpayer, Capital Court, L.L.C.
Property tax abatement -- sufficiency of evidence; estoppel
02-0081 Appeal of Mary Scofield*
David P. Slawsky for claimant Mary Scofield
James E. Owers for Liberty Mutual Insurance Company
Daniel C. Garvey for Liberty Mutual Insurance Company
Attorney General
Workers' compensation -- whether RSA 281-A:13 authorizes insurer to assert a "holiday" and stop paying benefits based on settlement of a civil action by the claimant against her former employer for medical negligence; whether insurer is barred from asserting a "holiday" by its refusal to participate in settlement or to timely intervene in civil action; cross-appeal - whether claimant has burden of proving how a settlement should be allocated when the claimant fails to present the settlement to the trial court under RSA 281-A:13
02-0091 State of NH v. David Michaud*
Attorney General
Appellate Defender
James H. Moir
Arson - failure to grant credit for pre-trial confinement where sentence imposed is not consecutive to sentence already being served
02-0105 Bill O. Weeks v. Co-Operative Insurance Companies*
John B. Kenison Jr.
James R. Fox
Andrew D. Dunn
Insurance coverage - business owner's policy; whether "negligent work" exclusion or "other types of losses" exclusion in policy bars coverage; whether damage was caused by negligent work or was merely a manifestation of the negligent work
02-0106 State of New Hampshire v. Erik Ouellette*
Attorney General
Appellate Defender
Timothy P. Gurshin

Driving after certification as a habitual offender, disobeying a police officer -- sufficiency of evidence
02-0110 Joan M. Smart, Executrix under the Will of John E. Smart, Joan M. Smart, Individually v. American Welding and Tank Company, Inc.*, Thom's Transport Company, Inc.
Alexander Lachiatto W. S. O'Connell for American Welding
Vivian M. Quinn for American Welding
David S. Osman for Thom’s Transport Company, Inc.
David J. Killkelley for Thom’s Transport Company, Inc.
Contribution among tortfeasors -- whether carrier may seek contribution from a shipper for injuries sustained by a consignee's employee during unloading of cargo when carrier delegated loading of its trailer to the shipper
02-0113 Michael A. Currier* v. Stephen M. Hatfield
Robert E. Fisher
Gary M. Burt
Voluntary non-suit -- whether rule of law in Leonard v. Fahey, 87 N.H. 170 (1934), is still applicable; if not, should new rule of law apply retroactively; whether dismissal is draconian remedy for failure to file response to a motion on the merits where failure was due to attorney being on vacation
02-0117 In re Estate of J. Douglas King
Charles A. DeGrandpre for Executrix Laurel King*
George T. Campbell, III for Executrix Laurel King
Andrew W. Serell for Rebecca King Felmet and Rachel King
Robert R. Howard, III for Jason King
Wills -- whether copy of will could be proved by an original codicil that incorporated original will by reference; whether executrix rebutted presumption that original will had been destroyed; whether court erred by removing executrix and appointing independent administrator
02-0118 Catrina L. Graves* v. Franklin L. Estabrook
Roy A. Duddy Fred J. Desmarais
Negligent infliction of emotional distress -- whether plaintiff, who is unrelated to decedent by blood or marriage but who cohabited with decedent and was in a long-term relationship with him, may recover for negligent infliction of emotional distress after witnessing death of decedent
02-0128 David E. Strang, M.D.* v. Frisbie Memorial Hospital
Joni N. Esperian David A. Garfunkel
Andrea K. Johnstone
Interference with medical staff privileges -- whether court erred in awarding judgment as a matter of law where hospital refused to allow plaintiff to cover shifts when it had allowed another physician to moonlight in the emergency department after he left full-time employment
02-0129 Thomas K. Sisson v. Shari Jankowski, Esquire and Wiggin & Nourie, P.A.
Ronald L. Snow Andrew D. Dunn
Kevin G. Collimore
Legal malpractice -- whether attorney's negligent failure to arrange for timely execution of a will and failure to provide reasonable professional advice with respect to testamentary options creates common law claim against attorney by intended beneficiary of unexecuted will; certification of question from U.S. District Court
02-0136 Denise Cross* v. Cameron Brown
David P. Slawsky Charles P. Bauer
Financial Privacy Act -- whether RSA chapter 359-C creates a civil action and if so, what remedies are authorized; whether official or qualified immunity apply in civil action against municipal police officer; interlocutory appeal
02-0137 Peter Gianola v. Continental Casualty Company*
Jared R. Green
H. E. McBurney Jr.
Dona Feeney
Uninsured motorist benefits -- whether insurer waived defenses by not responding to correspondence from attorney
02-0143 State of NH v. Hilary Kulunis
Attorney General Appellate Defender
Theodore M. Lothstein
Vehicular assault -- whether RSA 265:79-a requires State to prove any culpable mental state and if so, which mental state; if the statute does not require proof of a mental state, whether it violates NH Constitution; interlocutory transfer
02-0144 State of NH v. Michael Amirault*
Attorney General Appellate Defender
Lauren N. Greenwald
Criminal threatening -- failure to conduct in camera review of police department's internal investigation records; failure to strike presentence investigation report; whether search of premises was illegal
02-0146 State of NH v. Gregory Davis*
Attorney General Mark L. Sisti
Felon in possession of dangerous weapon -- failure to suppress evidence obtained as a result of warrantless search and seizure of defendant's possessions; failure to dismiss indictments for lack of specificity
02-0148 Richard G. Smith* v. Director, NH Division of Motor Vehicles
Martin K. Glennon Attorney General
Administrative license suspension -- denial of hearing to determine reason tape recording of administrative hearing was first alleged to be unavailable due to faulty equipment but later found; whether court erred in granting motion to reconsider based on new development that tape had been found
02-0159 State of NH v. Michael Dubois*
Attorney General Appellate Defender
Philip D. Cross
Aggravated felonious sexual assault -- denial of mistrial with prejudice when mistrial was due to State's violation of discovery rules and State gained tactical advantage from mistrial; allowing victim to testify she "felt drugged" and State to argue defendant had opportunity to drug victim absent any evidence victim was in fact "drugged"
02-0165 The Cadle Company, servicing agent for Cadle Properties of New Hampshire, Inc.* v. Maurice Bourgeois, Irene Bourgeois, and Dennis Proulx
Marc W. McDonald Victor Daha for Maurice Bourgeois
Pauline L. Guay for Irene Bourgeois
Barry M. Scotch for Dennis Proulx
Settlement agreement -- numerous issues including whether plaintiff has valid interest in partnership or property; whether partnership dissolved in October 1992; whether acceptance of payment constituted waiver in light of contrary language in note; equitable estoppel; whether court based its decision on improper factors