Brentwood Distribution, LLC v. Town of Exeter

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0729, Brentwood Distribution, LLC v.
Town of Exeter, the court on July 7, 2016, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
respondent, the Town of Exeter (Exeter), appeals orders of the Superior Court
(Delker, J.) in which the trial court concluded that Exeter’s posting of a weight
limit on Pine Road was unlawful, enjoined its enforcement, and ordered Exeter
to pay the attorney’s fees and costs incurred by three businesses which
challenged the posting. One of the intervenors in the case, the Town of
Brentwood, cross-appeals the trial court’s denial of its request for attorney’s
fees. We conclude that: (1) the trial court erred when it decided that the
posting was unlawful; and (2) none of the three businesses or the Town of
Brentwood is entitled to attorney’s fees. Therefore, we reverse in part and
affirm in part.

The trial court found, or the record supports, the following facts. Pine
Road begins at the intersection of Route 27 in Exeter, and continues into
Brentwood. Exeter’s section of Pine Road is sparsely populated, but there are
several businesses located on Pine Road in Brentwood, including the petitioner,
Brentwood Distribution, LLC (Brentwood Distribution), and The Quikrete
Companies, Inc. (Quikrete) and Northern Elastomeric, Inc. (NEI). These
businesses use heavy trucks that travel over Pine Road on a daily basis.

In the spring of 2010, the Exeter Highway Department Superintendent
recommended to the Exeter Board of Selectmen (Exeter Board) that Pine Road
be rebuilt and upgraded. In April and July 2010, town officials from Exeter
met with officials from the Town of Brentwood to discuss whether, because the
trucks from Brentwood businesses were damaging the road, the Town of
Brentwood would contribute to the upgrade. A Brentwood selectman said that
a warrant article would be submitted at the next town meeting to pay the Town
of Brentwood’s share of the cost of the road upgrade.

In July, the Exeter Board discussed various options regarding Pine Road,
including posting the road with a weight limit of eight tons in accordance with
RSA 231:191 (2009). RSA 231:191, I, provides, in pertinent part, that “[t]he
governing body of a municipality may establish maximum weight limits . . . for
any class IV, V, or VI highway,” which includes Pine Road, “when the highway
agent determines that such highway requires postings to prevent unreasonable
damage or extraordinary municipal maintenance expense.” The Exeter Board
decided to upgrade the road, and did not post the road with a weight limit. The
upgrade was completed in July 2010.

Following the upgrade, the Brentwood Board of Selectmen included an
article in the warrant for the 2011 town meeting authorizing the Town of
Brentwood to pay Exeter a portion of the cost of upgrading the road. The
warrant article did not pass. After learning that the warrant article failed,
Exeter town officials revisited the issue of posting a weight limit on Pine Road,
and renewed their request that the Town of Brentwood contribute to the
upgrade. The Town of Brentwood again refused. In June 2011, pursuant to
RSA 231:191, the Exeter Board unanimously voted to post a weight limit of
eight tons on Pine Road.

The following week, a selectman from the Town of Brentwood met with
the Exeter Board and requested that Pine Road not be posted. He stated that
several problems would be created by the posting, including the dangerous
rerouting of heavy trucks to roads in the Town of Brentwood. Exeter agreed to
delay posting the road.

On several occasions over the next few months, the Exeter Board
discussed Pine Road and met with officials from the Town of Brentwood.
Officials from both towns discussed damage to Pine Road that had occurred
after its reconstruction, as well as safety issues at and near the intersection of
Pine Road with Route 27 (Route 27 intersection) that had been caused by the
continuing use of the intersection by the heavy trucks from the Brentwood
businesses. The Exeter Board also continued its futile efforts to have the Town
of Brentwood share the cost of the road upgrade. The trial court found that
during this time the “Exeter selectmen’s primary concerns were recovering the
extra cost the town invested to upgrade the road . . . and the safety of the
intersection with Route 27,” observing that the “overwhelming majority of the
discussion” at meetings during the fall of 2011 “focused on the traffic safety
issues with the Route 27 intersection.” The trial court described the safety
concerns — which, it noted, had been “discussed at length in the Exeter Board
of Selectmen meetings” — as follows:

The record is replete with evidence that the large tractor trailers
entering and [exiting] Pine Road from Route 27 take wide turns
that encroach into oncoming traffic or off-track from the existing
pavement to make the wide turning radius. . . . These issues
create safety concerns regard[ing] the intersection and originate
almost exclusively as a result of the truck traffic from the
Brentwood businesses. But for these oversized trucks, the Route
27 intersection would be adequate for ordinary traffic in Exeter.

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Further, the minutes of the Exeter Board’s meetings show that Exeter’s
highway agent informed the Exeter Board about the “wear and the tear of Pine
Road” that had been sustained after its reconstruction, stated his safety
concerns about the continuing use of the Route 27 intersection by the large
trucks, and predicted that, if the various safety issues at the intersection were
not addressed, there “w[ould] be a fatal accident out there some day.”

In November 2011, the Exeter Board voted to implement the posting of
Pine Road, and it was posted in December. Shortly thereafter, the attorney for
Brentwood Distribution sent two letters to the Exeter Board, asserting that the
posting was unlawful, and warning that “[l]itigation is the only alternative if the
posting is not removed forthwith.” The posting was not removed, and, in
January 2012, Brentwood Distribution filed a petition in Superior Court
seeking injunctive relief, damages, and attorney’s fees and costs. Brentwood
Distribution alleged that the posting of Pine Road was illegal. Exeter countered
that the request for preliminary relief should be denied because Brentwood
Distribution had failed to exhaust its administrative remedies under RSA
231:191. The trial court granted motions to intervene filed by the Town of
Brentwood, Quikrete, and NEI.

After a hearing, the trial court issued a preliminary injunction enjoining
Exeter from posting the road until after a final hearing on the merits. Soon
thereafter, Exeter filed a cross-claim against the Town of Brentwood, asserting
that the Town of Brentwood was liable for a share of the cost incurred to
upgrade Pine Road, and for a portion of the future costs associated with
upgrading the Route 27 intersection.

Prior to trial, the trial court granted summary judgment in favor of
Exeter on Brentwood Distribution’s claim for damages, concluding that the
actions of the Exeter Board regarding the posting of Pine Road qualified for
discretionary function immunity. See Appeal of N.H. Dep’t of Transp., 159 N.H.
72, 74 (2009) (“When the particular conduct which caused the injury is one
characterized by the high degree of discretion and judgment involved in
weighing alternatives and making choices with respect to public policy and
planning, governmental entities should remain immune from liability.”
(quotation omitted)). This ruling has not been appealed.

Following a bench trial, the trial court permanently enjoined Exeter from
posting the weight limit on Pine Road. The court concluded that Exeter had
failed to comply with RSA 231:191, I, rejecting Exeter’s argument that safety
concerns regarding the use — and impact — of heavy trucks from Brentwood
businesses at the Route 27 intersection provided a lawful basis for posting the
road. In finding that the posting was unlawful, the trial court explained that,
although RSA 231:191, V “suggests that public safety may play a role in [the]
decision” to post a road, the only public safety concerns that could justify the
posting of Pine Road are those attributable specifically to the damage to Pine

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Road caused by its use by heavy trucks. Therefore, the trial court concluded
that the “concerns about traffic safety at the intersection between Pine Road
and Route 27 need to be addressed by other means,” and that RSA 231:191, I,
“does not authorize the town to post a weight limit to address these kind[s] of
safety issues.”

The trial court further found that the Exeter Board posted Pine Road
primarily because the selectmen were “upset that the Town of Brentwood
refused to contribute toward . . . the upgrade of Pine Road.” The trial court
concluded that this was “not a valid purpose for posting the road.” See RSA
231:191, I. The trial court ruled that, because the posting was unlawful,
Brentwood Distribution and the intervenors were not required to exhaust their
administrative remedies prior to filing suit. The trial court also decided that
the Town of Brentwood was required to pay part of the cost of the July 2010
Pine Road upgrade, and that it would be responsible for a portion of the future
costs of improving the Route 27 intersection. See RSA 231:74 (2009).

The trial court awarded attorney’s fees to Brentwood Distribution,
Quikrete, and NEI, but denied the Town of Brentwood’s fee request. Exeter
and the Town of Brentwood filed motions for reconsideration, which were
denied. This appeal and cross-appeal followed.

On appeal, Exeter argues that the trial court erred when it concluded
that the posting was unlawful, and also asserts that the suit was barred
because Brentwood Distribution and the intervenors failed to exhaust their
administrative remedies. Exeter further argues that the trial court erred when
it awarded attorney’s fees to the three businesses. The Town of Brentwood
cross-appeals the trial court’s denial of its request for attorney’s fees, and it
argues that Exeter’s appeal was untimely.

As a threshold matter, we address the Town of Brentwood’s argument
that Exeter’s appeal of the merits decision was untimely. We disagree.
Because we conclude that Exeter properly waited for a final decision from the
trial court on the attorney’s fees issue before filing its notice of appeal, we will
turn to the arguments as to the merits and the fee award. See Van Der Stok v.
Van Voorhees, 151 N.H. 679, 681 (2005) (agreeing that appeal of merits ruling
was timely when plaintiff “properly waited for a final ruling on attorney’s fees
before filing his notice of appeal”); see also Sup. Ct. R. 7(1)(C). Additionally,
because we agree with Exeter’s argument on the merits — that the trial court
erred when it concluded that the posting of Pine Road was unlawful — we
assume without deciding that Brentwood Distribution and the intervenors
properly exhausted any administrative remedies prior to filing suit.

We now turn to the merits of the trial court’s ruling and its award of
attorney’s fees. The trial court found that, between the time of the original vote
in June 2011 to post Pine Road, and the decision in November 2011 to

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implement the posting, the “overwhelming majority of the discussion” at the
Exeter Board’s meetings “focused on the traffic safety issues with the Route 27
intersection” caused by the “oversized trucks” from Brentwood businesses.
Despite these findings, the trial court concluded that those safety concerns
could not justify posting Pine Road because RSA 231:191, I, “does not
authorize the town to post a weight limit to address these kind[s] of safety
issues.”

On appeal, Exeter asserts that the trial court erred when it ruled that, in
determining whether to post Pine Road, the Exeter Board could not lawfully
consider the safety issues arising because of the use of the Route 27
intersection by heavy trucks from the Brentwood businesses. Brentwood
Distribution and the intervenors counter that the trial court correctly
concluded that, under the plain language of RSA 231:191, I, “concerns about
the safety of an intersection, even if genuine, do not form a [lawful] basis to
impose a weight limit posting.”

“Although we review the trial court’s statutory interpretation de novo, we
will uphold its factual findings unless the evidence does not support them or
they are erroneous as a matter of law.” Rabbia v. Rocha, 162 N.H. 734, 738
(2011) (citation omitted). “In matters of statutory interpretation, we are the
final arbiters of the legislature’s intent as expressed in the words of the statute
considered as a whole.” Zorn v. Demetri, 158 N.H. 437, 438 (2009). “We first
look to the language of the statute itself, and, if possible, construe that
language according to its plain and ordinary meaning.” Id. “We interpret
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include.” Id. “We construe all parts of a statute together to effectuate its
overall purpose and avoid an absurd or unjust result.” Id. “Moreover, we do
not consider words and phrases in isolation, but rather within the context of
the statute as a whole.” Id. at 438-39. “This enables us to better discern the
legislature’s intent and to interpret statutory language in light of the policy or
purpose sought to be advanced by the statutory scheme.” Id. at 439.

RSA 231:191, I, provides, in pertinent part, that the “governing body of a
municipality may establish maximum weight limits . . . for any class IV, V, or
VI highway or portion of such highway, when the highway agent determines
that such highway requires postings to prevent unreasonable damage or
extraordinary municipal maintenance expense.” This provision is part of a
comprehensive statutory scheme under which, pursuant to RSA 41:11 (2012),
selectmen are granted broad authority to “regulate the use of all public
highways, sidewalks, and commons in their respective towns and for this
purpose may exercise all the powers conferred on city councils by RSA 47:17,
VII, VIII, and XVIII, and by any other provisions of the laws upon the subject.”
See RSA 47:17, VII-VIII (2012) (permitting city councils to “regulate all streets
and public ways,” including by erecting posts, “mak[ing] special regulations as

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to the use of vehicles upon particular highways,” and making regulations to
“exclude such vehicles altogether from certain ways”). As to the posting of
weight limits on roads, the legislature has explained that the “condition of . . .
roads may at times necessitate that certain limits, seasonal or otherwise, as
authorized in RSA 41:11, be placed upon the weight of vehicles that can safely
pass across such roads, so as to avoid causing damage which may result in
hazards to public safety or excessive municipal expense.” RSA 231:190 (2009)
(emphases added). This reference to “public safety” in the “Statement of
Purpose” for RSA 231:191 is mirrored by a reference to public safety in RSA
231:191, V, which provides that a municipality shall grant an exemption from
a posted weight limit to “any owner of land or a commercial enterprise served
by such highway” who complies with certain requirements, “unless the
exemption would be detrimental to public safety.” (Emphasis added.)

Here, the trial court noted that RSA 231:191, V “suggests that public
safety may play a role in” the decision to post a road. We agree. However, we
conclude that the trial court construed RSA 231:191, V too narrowly, and
disregarded the other statutory provisions described above, when it determined
that the only safety concerns that could legitimately justify posting Pine Road
under RSA 231:191, I, are those related specifically to damage to Pine Road
itself, as opposed to safety concerns relating to the Route 27 intersection
arising because of the use of Pine Road by heavy trucks.

There is nothing in RSA 231:191, I, that establishes that when
determining whether to post a road weight limit, a municipality’s governing
body or its highway agent may not consider public safety issues arising
because of the use of heavy trucks at an intersection. Moreover, were we to
hold that concerns regarding public safety at the Route 27 intersection arising
from the use by heavy trucks could not factor into the decision as to whether to
post Pine Road, we would be ignoring several other statutory provisions that
authorize, implicitly or explicitly, the consideration of public safety when
posting a road. See RSA 41:11; RSA 47:17, VII-VIII; RSA 231:190; RSA
231:191, V.

Accordingly, we conclude that the Exeter Board and its highway agent
could properly consider the public safety concerns arising out of the use of Pine
Road by heavy trucks at the Route 27 intersection when deciding whether to
post Pine Road. See Appeal of Dell, 140 N.H. 484, 497 (1995) (concluding that,
because there was “nothing in the statutory language prohibiting consideration
of [certain] factors in a reinstatement proceeding,” the New Hampshire Board of
Registration in Medicine “may, in its discretion, determine that such conduct is
relevant to the issue of a physician’s professional competence”). Therefore, the
trial court erred in deciding to the contrary.

We note that Brentwood Distribution and the intervenors also argue that
the issue of whether public safety concerns can justify the posting of a road

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under RSA 231:191, I, is “irrelevant to the outcome of the case” because
regardless of the safety concerns, the trial court found that the original
decision to post Pine Road was made “primarily” to “pressure Brentwood for
money for the road’s reconstruction.” We recognize that the trial court found
that, in June 2011, the Exeter Board was “primarily motivated by an intent to
pressure Brentwood” into paying its share of the road upgrade. However, the
trial court also found that, during the period between the initial vote and the
decision in November 2011 to implement the posting, the Exeter Board focused
upon the safety issues involving the use of heavy trucks from the Brentwood
businesses at the Route 27 intersection. Indeed, the trial court found that
these safety issues became a “primary” concern for the Exeter Board, and that
the “overwhelming majority” of the Exeter Board’s discussions in the meetings
prior to implementing the posting focused upon these safety issues.
Accordingly, given that the posting was not implemented until after the
November vote, we are not persuaded that the legitimate public safety concerns
arising out of the use of heavy trucks at the Route 27 intersection are
“irrelevant” to the outcome of this case.

Because these safety concerns supported the posting of Pine Road, and
the trial court’s findings regarding the safety concerns at the Route 27
intersection are well-supported by the record, see Rabbia, 162 N.H. at 738
(explaining that we uphold trial court’s factual findings unless the evidence
does not support them or they are erroneous as a matter of law), we conclude
that, under all the circumstances, the posting of Pine Road complied with RSA
231:191, I, and was, therefore, lawful. Accordingly, we reverse the trial court’s
decision.

We next consider whether the trial court erred when it awarded
attorney’s fees to Brentwood Distribution, Quikrete, and NEI, and declined to
award attorney’s fees to the Town of Brentwood. The trial court awarded fees
to the three businesses under two separate theories: bad faith litigation and
litigation conferring a substantial benefit to the public. See Frost v. Comm’r,
N.H. Banking Dep’t, 163 N.H. 365, 378 (2012) (explaining bad faith litigation
and substantial benefit theories). However, a prerequisite to the award of
attorney’s fees under both theories is that the party to whom the fees are
awarded must be a prevailing party. See, e.g., Van Der Stok, 151 N.H. at 685
(regarding bad faith); Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578,
596 (2000) (regarding substantial benefit); see also Dow v. Town of Effingham,
148 N.H. 121, 133 (2002) (“In this case, the plaintiff is not entitled to attorney’s
fees because he is not the prevailing party.”). Given our decision today,


To the extent that Brentwood Distribution and the intervenors separately argue that the Exeter
Board could not consider public safety concerns at the Route 27 intersection because Route 27 is
a state highway over which the Exeter Board has no jurisdiction, we conclude that the argument
is not sufficiently developed to warrant appellate review. See Sutton v. Town of Gilford, 160 N.H.
43, 61 (2010).

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Brentwood Distribution, Quikrete, NEI, and the Town of Brentwood are not
prevailing parties, and, therefore, are not entitled to an award of fees.

Finally, nothing in this decision should be construed to preclude
Brentwood Distribution, Quikrete, or NEI from requesting written permission to
exceed the posted weight limit on Pine Road, seeking an exemption from the
posting, or requesting a hearing before the Exeter Board. See RSA 231:191, III,
V, VII. We express no opinion as to the proper outcome of any such action.
We observe, however, that the enforcement of the weight limit has been
enjoined for more than four years, and during this time material changes may
have occurred in the road layout at or near the Route 27 intersection, or in the
condition of the road surface and the adjacent shoulder.

Reversed in part; and
affirmed in part.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

Eileen Fox,
Clerk

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