Vincent Gillespie v. Craig Edsall & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0455, Vincent Gillespie v. Craig Edsall &
a., the court on March 11, 2020, issued the following order:

Having considered the brief filed by the plaintiff, Vincent Gillespie, the
memorandum of law filed by the defendants, Craig Edsall, the Town of
Peterborough (Town), and the Town’s police department, and the record
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1). The plaintiff appeals an order of the Circuit Court
(Gleason, J.) ruling in favor of the defendants on his small claim complaint
seeking recovery of a $315 towing fee. See RSA 262:32, :33 (2014). We affirm.

The trial court could have found the following facts. On a misty night in
May 2018, the plaintiff left his vehicle unattended along the edge of Route 202
in Peterborough. An officer came upon the vehicle shortly after midnight. The
vehicle had no hazard lights on and was found in an area where there have
been prior accidents, including fatalities. A view of the vehicle was partially
obstructed by a turn in the road. This section of Route 202 has no street
lighting. The speed limit in the area is 55 miles per hour.

The officer spent close to an hour contacting various police agencies
before obtaining the plaintiff’s name and telephone number. He called the
plaintiff at approximately 1:00 in the morning, but the plaintiff chose not to
answer the telephone. The officer determined that the vehicle would be a
menace to traffic if it remained where it was and, therefore, arranged to have it
towed. See RSA 262:32, III. Later that day, the plaintiff called the police
department looking for his vehicle. He subsequently recovered the vehicle from
the towing company, after paying the $315 towing charge. See RSA 262:33, I.

RSA 262:32, III allows an officer to have a vehicle towed if he has
reasonable grounds to believe that the vehicle “will be a menace to traffic if
allowed to remain.” RSA 262:33, I, provides that all reasonable towing charges
“shall be paid by . . . [the] person claiming [the] vehicle.”

On appeal, the plaintiff contends that the evidence does not support the
trial court’s determination that the officer in this case had reasonable grounds
to believe that the plaintiff’s vehicle would be a menace to traffic if it were
allowed to remain. In reviewing a trial court’s decision rendered after a trial on
the merits, we uphold its factual findings and rulings unless they lack
evidentiary support or are legally erroneous. O’Malley v. Little, 170 N.H. 272,
275 (2017). We do not decide whether we would have ruled differently than the
trial court, but rather, whether a reasonable person could have reached the
same decision as the trial court based upon the same evidence. Id. Thus, we
defer to the trial court’s judgment on such issues as resolving conflicts in the
evidence and determining the weight to be given evidence. Id. Nevertheless, we
review the trial court’s application of the law to the facts de novo. Id.

Based upon our review of the record submitted on appeal, we conclude
that it supports the trial court’s finding that the officer had reasonable grounds
to believe that the plaintiff’s vehicle would be a menace to traffic if it remained
unattended on the side of Route 202. Although the evidence before the trial
court was conflicting, it was for the trial court to resolve such conflicts in the
first instance. See id.

The plaintiff argues that his vehicle did not present a “menace to traffic”
because it did not present “a clear cut and tangible interference with, or danger
to, traffic or traffic related operations.” He contends that the trial court failed
to apply this definition of “menace to traffic,” and, therefore, that the trial court
erred when it found that the officer had reasonable grounds to believe that the
plaintiff’s vehicle would be a menace to traffic along Route 202.

The record submitted on appeal fails to establish that the plaintiff raised
this argument in the trial court. It is a long-standing rule that parties may not
have judicial review of matters that were not properly raised in the trial court.
Thompson v. D’Errico, 163 N.H. 20, 22 (2011). It is the burden of the
appealing party, here the plaintiff, to provide this court with a record
demonstrating that he raised his issues before the trial court. See Bean v. Red
Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). Because the plaintiff has failed to
demonstrate that he raised his argument regarding the meaning of the phrase
“menace to traffic” in the trial court, we decline to address it.

The plaintiff next argues that the towing itself was not reasonable
because his car was towed only approximately five hours after he left it on the
side of the road. RSA 262:32, II allows an officer to have a vehicle towed if it
“has been left unattended on any way or the right-of-way thereof for a period of
greater than 24 hours.” However, this 24-hour period does not apply when a
vehicle is towed pursuant to RSA 262:32, III. Under RSA 262:32, III, regardless
of the length of time for which a vehicle has been left unattended, an officer
may have it towed if the vehicle “is obstructing any way or the access thereto,
or access to a public building, or is or will be a menace to traffic if allowed to
remain, or is obstructing snow removal or highway maintenance operations.”

To the extent that the plaintiff raises constitutional arguments, we
decline to review them because he has not provided a record demonstrating
that he raised these arguments in the trial court, see Bean, 151 N.H. at 250,
and because he has not developed them sufficiently for our review. “Judicial
review is not warranted for complaints regarding adverse rulings without

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developed legal argument, and neither passing reference to constitutional
claims nor off-hand invocations of constitutional rights without support by
legal argument or authority warrants extended consideration.” Appeal of
Omega Entm’t, 156 N.H. 282, 287 (2007). Having concluded that the trial
court did not err by ruling in favor of the defendants, we need not address the
parties’ arguments regarding the plaintiff’s failure to timely exhaust his
administrative remedies.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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