Gary Volpe, o/b/o the Clara Volpe v. Dennis Volpe & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0143, Gary Volpe, o/b/o the deceased
Clara Volpe v. Dennis Volpe & a., the court on April 8, 2022,
issued the following order:

Having considered the briefs, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). The petitioner, Gary Volpe, o/b/o the deceased Clara Volpe,
appeals the order of the Circuit Court (Cassavechia, R., approved by Moran, J.)
dismissing his amended petition to invalidate certain amendments to the Clara
E. Volpe Revocable Trust, and the order of the Circuit Court (Cassavechia, R.,
approved by Weaver, J.) granting summary judgment in favor of the intervenor,
Cambridge Trust Company, on its request for a declaration that the petitioner
violated the trust’s in terrorem clause by filing his petition. The intervenor and
respondent Dennis Volpe request that we dismiss the appeal as untimely. We
affirm in part, and dismiss the appeal in part.

We note at the outset that we need not decide whether the order
dismissing the petition was a final decision on the merits that the petitioner
needed to appeal separately from the subsequent order granting the
intervenor’s summary judgment motion because the appeal of the summary
judgment order was itself untimely.

Rule 7(1) of the Supreme Court Rules requires that a notice of appeal be
filed within thirty days from the date on the clerk’s written notice of the
decision on the merits. A timely filed post-decision motion stays the running of
the appeal period. Sup. Ct. R. 7(1)(C). An untimely filed post-decision motion
does not stay the running of the appeal period unless the trial court waives the
untimeliness within the appeal period. Id. In the absence of an express waiver
of the untimeliness made by the trial court within the appeal period, the appeal
period is not extended, even if the trial court rules on the merits of an untimely
filed post-decision motion. Id.

In this case, the clerk’s written notice of the trial court’s summary
judgment order is dated February 25, 2021. A timely motion for
reconsideration was due within ten days of the clerk’s notice of decision, or by
Monday, March 8, 2021. See Prob. Div. R. 12, 59-A(1). The trial court found,
and the record on appeal does not contradict, that the petitioner filed his
motion for reconsideration on Wednesday, March 10, 2021. The trial court did
not expressly waive the untimeliness within the appeal period or extend the
period for seeking reconsideration, but instead denied the motion for several
reasons, including untimeliness. “[M]erely accepting and ruling upon a late
motion for reconsideration is not the equivalent of waiving the untimeliness
within the appeal period.” Germain v. Germain, 137 N.H. 82, 85 (1993)
(quotation and brackets omitted).

Because the petitioner’s untimely-filed motion for reconsideration did not
stay the running of the appeal period, an appeal of the summary judgment
order was due within 30 days of February 25, 2021, or by Monday, March 29,
2021. See Sup. Ct. R. 7(1)(C), 27(1). The petitioner did not file his notice of
appeal until April 12, 2021. Accordingly, we dismiss the appeal to the extent
that the petitioner challenges the merits of the trial court’s decisions
dismissing his petition and granting summary judgment to the intervenor on
its request for a ruling that the petition violated the trust’s in terrorem clause.
See Sup. Ct. R. 5(4).

We note that the petitioner filed his notice of appeal within thirty days of
the clerk’s notice of decision denying his untimely motion for reconsideration.
To the extent that the petitioner seeks our review of the order on
reconsideration, we conclude that the trial court did not unsustainably exercise
its discretion and, therefore, affirm its decision. See Germain v. Germain, 137
N.H. 82, 84-85 (1993) (treating appeal as timely only as to the denial of the
untimely motion for reconsideration, but not as to the earlier decision on the
merits); In re Estate of Porter, 159 N.H. 212, 214 (2009) (same); see also Broom
v. Continental Cas. Co., 152 N.H. 749, 752 (2005) (applying unsustainable
exercise of discretion standard to order denying motion for reconsideration).

Affirmed in part; and
dismissed in part.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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