Lauren C. Shearer v. Town of Richmond

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0362, Lauren C. Shearer v. Town of
Richmond, the court on October 24, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The motion filed by the plaintiff, Lauren C. Shearer, to strike
the brief filed by the defendant, the Town of Richmond (Town), is denied. The
plaintiff appeals an order of the Superior Court (Leonard, J.) granting the Town’s
summary judgment motion on his complaint seeking the layout of a class V
highway, see RSA 231:38 (2009), and denying his cross-motion for summary
judgment. We reverse the grant of summary judgment to the Town and remand.

The following facts are undisputed. On June 7, 2021, the plaintiff filed a
petition with the Town to lay out a class V highway. The Town scheduled a
public hearing for November 17 and, in October, sent the plaintiff notice of the
hearing. On November 5, the plaintiff filed the instant action in superior court,
alleging that, under RSA 231:38, the Town had neglected to lay out the class V
highway and petitioning the superior court to have the road laid out.

On November 15, the plaintiff emailed the Town, informing it that he
would not be present at the November 17 hearing because the Town notified him
of the public hearing only 29 days prior to the hearing, rather than 30 days as
required by statute. See RSA 231:9 (2009). The Town thereafter cancelled the
November 17 hearing, and provided notice on December 13, 2021 that it would
hold the hearing on January 26, 2022. Following that hearing, the Board of
Selectmen (Board) issued a written decision on March 3, 2022, denying the
plaintiff’s petition.

Meanwhile, on January 11, 2022, the Town filed a motion for summary
judgment in the superior court case that the plaintiff filed in November 2021.
On February 10, 2022, the plaintiff filed a cross-motion for summary judgment.
On March 8, 2022, following the Town’s denial of the plaintiff’s June 7, 2021
petition, the Town filed a supplemental affidavit containing the Board’s decision.
In addition, the Town filed an objection to the plaintiff’s cross-motion in which it
asserted that “[t]o the extent Plaintiff seeks affirmative relief of a finding of
‘neglect’ or ‘refusal,’ [the Town] objects . . . . Moreover, Plaintiff has failed to
demonstrate a material factual dispute on the issue of neglect or refusal.”

By order dated May 2, 2022, the trial court granted the Town’s motion for
summary judgment and denied the plaintiff’s cross-motion. In its recitation of
the facts, the court noted that the Town had rescheduled the hearing on the
plaintiff’s petition to lay out the road for January 26, 2022, but the court did not
note that the Board had issued a decision in March 2022 denying that petition.
The court then undertook a detailed analysis as to whether the Town neglected
the plaintiff’s petition, ruling that the Town did not do so. In the final paragraph
of its analysis, the court stated: “In conclusion, the Court finds as a matter of
law the Town did not neglect or refuse [the plaintiff’s] petition. Therefore,
because RSA 231:38, I only gives the Superior Court the power to determine
whether occasion exists if the Town refused or neglected a petition, the Court
does not have the power to hear [the plaintiff’s] petition.” (Emphasis added.)

The plaintiff filed a motion to reconsider, arguing that the trial court had
overlooked the March 2022 decision of the Board denying his June 7, 2021
petition to lay out the road. The plaintiff contended: “Given that the Town was
petitioned to layout a road, and after the Town’s process, per the Return, no
road was laid out, the Town has formally refused to lay out the road.” Therefore,
the plaintiff concluded, the court had “authority to consider the Petition relief
sought by Plaintiff under RSA 231:38, I, via the Town’s refusal to lay out the
road.” (Footnote omitted.) The trial court denied the motion, stating: “The Court
did not overlook or misapprehend any points of law or facts.” This appeal
followed.

In reviewing the trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 758 (2014).
If our review of that evidence discloses no genuine issue of material fact and if
the moving party is entitled to judgment as a matter of law, then we will affirm
the grant of summary judgment. Id. We review the trial court’s statutory
interpretation and its application of the law to the facts de novo. See id.

The plaintiff argues that the trial court erred when it concluded it lacked
jurisdiction under RSA 231:38. The statute provides:

Petitions for laying out or altering class IV, V or VI highways may be
filed in the office of the clerk of the superior court in the following
cases:
I. When selectmen have neglected or refused to lay out or alter
the highway;

II. When having been laid out by the selectmen, it is
discontinued by the town within 2 years thereafter.
RSA 231:38 (emphasis added). On appeal, the plaintiff asserts that the trial

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court had jurisdiction on the grounds that the Town both neglected and refused
“to lay out . . . the highway.” RSA 231:38, I.

We begin by assessing the plaintiff’s argument that the trial court had
jurisdiction because the Town refused to lay out the highway. The plaintiff
argues that the Board’s decision to deny his petition on March 3, 2022
constitutes a “refusal” within the meaning of RSA 231:38, I. The Town counters
that the plaintiff failed to preserve this argument, the Board’s decision to deny
his petition does not constitute a “refusal” to lay out the road, and the plaintiff’s
argument is foreclosed by the time limit contained in RSA 231:34.

We are not persuaded by the Town’s assertion that the plaintiff’s refusal
argument is unpreserved. The Town correctly observes that the plaintiff alleged
in his complaint only that the Town neglected to lay out the highway, not that
the Town refused to do so. The plaintiff alleged for the first time in his motion
for reconsideration that the Town refused to lay out the road. However, the
basis for the plaintiff’s argument that the Town refused to lay out the road was
the denial by the Town of his petition in March 2022 — obviously, the plaintiff
could not have made this claim in his complaint, which was filed in November
2021. Furthermore, prior to the trial court’s decision, the Town itself filed a
supplemental affidavit averring that the Board denied the plaintiff’s petition in
March 2022 and addressed the issue of refusal in its objection to the plaintiff’s
cross-motion, contending that there was no material factual dispute on the issue
of refusal and that the Town was entitled to summary judgment on that issue.
Finally, although the trial court did not set forth its analysis on the issue, it
ruled that, as a matter of law, the Town did not refuse the plaintiff’s petition.

Although we recognize our long-standing rule that parties may not have
judicial review of matters not raised at the earliest possible time, the rationale
behind the rule is that trial forums should have an opportunity to rule on issues
and to correct errors before they are presented to the appellate court. State v.
Tselios, 134 N.H. 405, 407 (1991). Here, the trial court had an opportunity to
consider and rule on the issue of “refusal”: the Town raised the issue in its
pleadings and filed an affidavit informing the trial court of the Board’s vote
denying the petition; the court ruled that the Town did not refuse the plaintiff’s
petition; the plaintiff raised the issue of refusal in his motion for reconsideration;
and the court denied the motion, stating that it had not overlooked or
misapprehended any points of law or facts.

The Town argues that the plaintiff was required to move to amend his
complaint “to add a new substantive claim” of refusal after the Board’s denial of
his petition. It asserts that, by raising refusal in his motion for reconsideration,
the plaintiff improperly attempted to “add new claims, advance new arguments
or add new evidence.” We disagree. In the plaintiff’s motion for reconsideration,
he neither raised a new issue that had not been considered by the trial court nor
inserted new facts not previously before the trial court. Rather, the plaintiff

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argued that the court had overlooked the affidavit filed by the Town that
contained the Board’s denial of his petition, noting that the court had not
mentioned it in its order.1 To find the argument unpreserved simply because
the plaintiff did not formally amend his complaint after the Board’s denial would
undermine the fundamental principle that, in New Hampshire, a party should
not lose a case on a “procedural technicality.” In re Proposed Rules of Civil
Procedure, 139 N.H. 512, 515 (1995) (quotation omitted). Indeed, the issue
having been addressed by the Town in its pleadings without objection, raised by
the plaintiff in his motion for reconsideration, and decided by the court in its
orders, the plaintiff’s complaint may be considered to have been constructively
amended to include it. See Miller v. Slania Enters., 150 N.H. 655, 659 (2004);
see also State v. Homo, 132 N.H. 514, 516 (1989). We fail to see any unfair
prejudice to the Town resulting from the constructive amendment. See In the
Matter of Greenberg & Greenberg, 174 N.H. 168, 175-76 (2021).

We now turn to the question of whether the Board’s denial of the plaintiff’s
petition constituted a refusal sufficient to vest the superior court with
jurisdiction under RSA 231:38, I. Resolving this issue requires statutory
interpretation. We first examine the statutory language, and where possible, we
ascribe the plain and ordinary meanings to the words used. Bovaird, 166 N.H.
at 758.

RSA 231:38, I, authorizes the filing in superior court of a petition to lay
out a class IV, V, or VI highway “[w]hen selectmen have neglected or refused to
lay out or alter the highway.” The plain meaning of “refuse” is to “indicate or
show that one is not willing to do something,” to “indicate that one is not willing
to accept or grant (something offered or requested).” New Oxford American
Dictionary 1468 (3d ed. 2010); see Webster’s Third New International Dictionary
1910 (unabridged ed. 2002) (“to show or express a positive unwillingness to do
or comply with,” “DENY”). Here, the plaintiff petitioned the Board to lay out a
class V highway. The Board showed its unwillingness to comply with the
plaintiff’s request to lay out the class V highway by denying his petition. Thus,
ascribing the plain and ordinary meaning to the word, we conclude that the
Board “refused” to lay out the highway.

We have previously characterized a municipality’s denial of a petition to
lay out a road as a refusal under RSA 231:38, I. For example, in Crowley v.

1 Significantly, the trial court did not deny the plaintiff’s motion to reconsider on the grounds

asserted here by the Town — that is, the trial court did not rule that the plaintiff was improperly
attempting to “add new claims, advance new arguments or add new evidence.” Nor did the court
rule, as the Town argued in its objection to the plaintiff’s motion to reconsider, that the plaintiff
was “through sleight of hand,” asserting for the first time an appeal under RSA 231:34 rather
than making the legal argument that the Town had “refused” to lay out the road within the
meaning of RSA 231:38, I. The trial court concluded that the plaintiff failed to demonstrate that
the court had overlooked or misapprehended any points of law or facts. Thus, it is clear that the
trial court rejected the plaintiff’s “refusal” argument on the merits.

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Town of Loudon, 162 N.H. 768, 770-71 (2011), the plaintiffs petitioned the town
to accept Green View Drive as a town road. We explained that after the town
denied the petition, the plaintiffs then “petitioned the superior court to lay out
Green View Drive as a public road. See RSA 231:38, I.” Crowley, 162 N.H. at
771. We further explained that upon petition, a town will lay out roads when
there is an “occasion” to do so. Id. at 773. Assessing “occasion” requires the
selectboard to balance the public need for the road against the burden the road
will impose on the town. Id. We then stated, again citing RSA 231:38, I, that
“[i]f a town refuses to lay out a road, the trial court may be petitioned to do so.”
Id. (emphasis added); see also Graves v. Town of Hampton, No. 2017-0451 (non-
precedential order at 3), 2018 WL 3237957 (N.H. June 21, 2018) (after
selectboard denied petition to lay out a class V highway, plaintiffs appealed to
superior court for de novo review; supreme court’s analysis explains that a
plaintiff may petition superior court when town “refuses to lay out a road,” citing
RSA 231:38). We see no reason why the instant case should be treated
differently.

Finally, we briefly address the Town’s argument that, because the Board’s
denial of the petition was not a “refusal” under RSA 231:38, I, the “proper
avenue of redress was an appeal under RSA 231:34” and that the plaintiff failed
to file an appeal to the superior court within the 60-day time limit required by
that statute. We disagree with the premise of the Town’s argument. As
explained above, the Board’s denial of the petition constituted a “refusal” under
RSA 231:38, I, and, therefore, the plaintiff was not required to seek redress
pursuant to RSA 231:34.

Because we conclude that the Board’s vote to deny the plaintiff’s petition
constituted a refusal to lay out the road under RSA 231:38, I, we need not reach
the parties’ arguments concerning “neglect” of the petition, and therefore we do
not disturb the trial court’s denial of the plaintiff’s cross-motion for summary
judgment. Accordingly, we conclude that the trial court erred when it granted
the Town’s motion for summary judgment. We reverse the grant of summary
judgment and remand.

Reversed in part and
remanded.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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