Doty Group, LLC & a. v. Town of Merrimack

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0692, Doty Group, LLC & a. v. Town of
Merrimack, the court on May 3, 2024, issued the following order:

The motion filed by the plaintiffs, Doty Group, LLC, CMI Leasing Corp.,
and Kalika, LLC, “for declaratory action for lack of subject matter jurisdiction,”
is denied. The joint motion filed by the defendant, the Town of Merrimack, and
the intervenors, KTK Realty Trust, LLC and Keith Pasquale, Sr., to strike the
reply brief is likewise denied. 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 plaintiffs appeal an order of the
Superior Court (Colburn, J.) upholding a decision of the town’s planning board
to approve a site plan application filed by the intervenors. See RSA 677:15
(2016). Based upon our review of the plaintiffs’ brief and reply brief, the joint
memorandum of law filed by the town and intervenors, the relevant law, the
record on appeal, and the trial court’s thorough and well-reasoned decision, we
find the plaintiffs’ arguments on appeal to be unpersuasive, and we affirm the
trial court’s decision. To the extent that the plaintiffs raise issues that the trial
court did not address, we conclude that, under the circumstances of this case,
such arguments are not preserved. To the extent that the plaintiffs raise new
arguments in their reply brief that are not responsive to the arguments in the
joint memorandum of law, the arguments are waived. See Panas v. Harakis &
K-Mart Corp., 129 N.H. 591, 617-18 (1987).

Affirmed.

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

Timothy A. Gudas,
Clerk