Peter Saunders & a. v. Town of Kingston

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0410, Peter Saunders & a. v. Town of
Kingston, the court on April 23, 2015, issued the following
order:

The defendant’s motion to strike the plaintiffs’ reply memorandum is
granted to the extent that the memorandum raises new issues, see Panas v.
Harakis & K-Mart Corp., 129 N.H. 591, 617-18 (1987), and relies upon
evidence not presented to the trial court, see Flaherty v. Dixey, 158 N.H. 385,
387 (2009); Sup. Ct. R. 13; otherwise, the motion is denied.

Having considered the brief, memoranda, and record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). We affirm.

The plaintiffs, Peter Saunders and Janet Saunders, appeal rulings and
orders of the Superior Court (McHugh, J.), following a jury’s verdict in favor of
the defendant, the Town of Kingston (town). The plaintiffs argue that the trial
court erred in: (1) denying their motion for recusal; (2) precluding them from
introducing certain evidence; and (3) denying their motion to set aside the
verdict.

The plaintiffs first argue that the trial judge erred in denying their motion
to recuse him from the case based upon allegations of bias. “The party
claiming bias must show the existence of bias, the likelihood of bias, or an
appearance of such bias that the judge is unable to hold the balance between
vindicating the interests of the court and the interests of a party.” In the
Matter of Tapply & Zukatis, 162 N.H. 285, 297 (2011) (quotation omitted).
“The test for the appearance of partiality is an objective one, that is, whether an
objective, disinterested observer, fully informed of the facts, would entertain
significant doubt that justice would be done in the case.” Id. (quotation
omitted). “Judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Id. (quotation omitted). “Opinions formed by the
judge on the basis of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a basis for a
bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Id. (quotation
omitted). “Thus, judicial remarks during the course of a trial that are critical
or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” Id. (quotation
omitted).
 The plaintiffs assert that the trial judge developed a bias against them as
a result of their “long and contentious . . . legal history.” The plaintiffs are
referring to litigation arising from their opposition to the town’s approval of a
planned supermarket development. The trial judge presided over these
proceedings, which were mentioned a number of times during the testimony in
this case. The plaintiffs also assert that a number of the judge’s rulings and
remarks in this case demonstrated an “inability to act as a credible and
impartial judge.” They also argue that the judge should have recused himself
because his son is employed as an attorney at a law firm that represents a
bank (not a party to this case) in a separate case brought by the plaintiffs
against that bank. Having reviewed the record, we conclude that no reasonable
person would have questioned the judge’s impartiality and that no factors were
present that would have per se disqualified him from participating in this case.
See id.; see also Miller v. Blackden, 154 N.H. 448, 456 (2006) (holding that
mere fact that trial court recused itself in prior matters involving defendant’s
business partner, who was not a party to the case, did not establish
appearance of bias); State v. Bader, 148 N.H. 265, 271 (2002) (discussing per
se rules of disqualification).

The plaintiffs next argue that the trial court erred in a number of its
evidentiary rulings. “The trial court has broad discretion to determine the
admissibility of evidence, and we will not disturb its ruling absent an
unsustainable exercise of discretion.” N.H. Dep’t of Transp. v. Franchi, 163
N.H. 797, 803 (2012). The plaintiffs argue that the trial court erred in not
allowing them to introduce: (1) an affidavit from their deceased friend attesting
to the condition of their house, under various exceptions to the hearsay rule;
(2) a bank’s appraisal of their house, under the business records exception to
the hearsay rule; and (3) testimony from a town resident regarding the
defendant’s alleged failure to inspect and maintain a catch basin on his
property, as evidence of the town’s routine practice of allegedly negligent
maintenance of catch basins. The plaintiffs also argue that the court erred in
limiting the scope of their expert’s testimony to exclude testimony regarding the
wetlands area adjacent to their house and in not ordering certain employees of
the New Hampshire Department of Transportation to testify at trial, after the
State moved to quash subpoenas for their appearance. Having reviewed the
record, we conclude that the plaintiffs have failed to demonstrate that the trial
court’s evidentiary rulings were clearly untenable or unreasonable to the
prejudice of their case. See id.

The plaintiffs next argue that the trial court erred in denying their motion
to set aside the verdict, asserting that the verdict is contrary to the weight of
the evidence. “[A] jury’s verdict may only be set aside if it is conclusively
against the weight of the evidence or if it is the result of mistake, partiality, or
corruption.” George v. Al Hoyt & Sons, Inc., 162 N.H. 123, 133 (2011)
(quotation omitted). “For a verdict to be conclusively against the weight of the
evidence it must be one no reasonable jury could return.” Id. We will uphold

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the court’s decision unless it is unsupported by the evidence or constitutes an
unsustainable exercise of discretion. Id.

In this case, the jury found that the plaintiffs failed to prove that the
defendant’s allegedly negligent maintenance of the storm drainage system
caused the water damage to their house. The defendant’s expert witness
testified that the plaintiffs’ water problems were due to a high water table, run-
off from the roof, the grading around the house, holes in the foundation, and
leaks in the roof and windows. In the opinion of the defendant’s expert, the
catch basin on the plaintiffs’ property did not contribute in any significant way
to the water problems in the house. Having reviewed the record, we cannot
conclude that the trial court erred in denying the plaintiffs’ motion to set aside
the verdict. See id.

To the extent that the plaintiffs’ brief raises additional arguments, we
conclude that they are insufficiently developed, see State v. Blackmer, 149 N.H.
47, 49 (2003), and warrant no further consideration, see Vogel v. Vogel, 137
N.H. 321, 322 (1993); see also Stewart v. Bader, 154 N.H. 75, 78 (2006) (noting
that “a mere laundry list of complaints regarding adverse rulings by the trial
court, without developed legal argument, is insufficient to warrant judicial
review”) (quotation omitted).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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