In 2022, the Superior Court granted summary judgment for the Town of Richmond in a case arising from a property owner’s petition to lay out a class V highway. Lauren Shearer petitioned the select board to layout Bowker Road as a Class V highway in order to gain access to his property. Bowker Road was formerly a town road, laid out in 1766 and discontinued in 1898. Shearer’s original layout petition was submitted to the select board in June 2021.
The Richmond select board scheduled a public hearing for November, which it noticed in October. Before the hearing could take place, Shearer emailed the town saying he would not participate in the hearing and filed a petition in Superior Court with two complaints. For one, he said the notice was given only 29 days prior to the hearing, not 30 as required by statute. RSA 231:9. For the other, he alleged that the town “neglected” to lay the road as petitioned. The hearing was cancelled and rescheduled for January 26, 2022; it was noticed on December 13, 2021, greater than 30 days prior. After the January hearing, the Board of Selectmen released a decision in March 2022 denying the petition to lay out Bowker Road as a class V road.
In the meantime, the proceedings before the Superior Court continued on the issue of the town allegedly “neglecting” to lay the road. The petition was made under New Hampshire RSA 231:38, I, which creates a cause of action “[w]hen selectmen have neglected or refused to lay out or alter [a class IV, V, or VI] highway.” In January, shortly before the select board meeting, the Town filed a motion for summary judgment arguing the complaint did not sufficiently show it had “neglected” to lay the road: “plaintiff failed to demonstrate a material factual dispute on the issue of neglect.” Shearer, representing himself, cross-filed for summary judgment. After the select board released its decision in March, the town submitted it along with an affidavit to the court to supplement the summary judgment motion. The Superior Court granted Richmond’s motion and denied Shearer’s, so the town prevailed. Shearer motioned for reconsideration, arguing that clearly the board’s decision not to lay the road was a “refusal.” The Superior Court denied the motion for reconsideration in part because it said it could not review the issue of “refusal” because the initial complaint had only raised “neglect.” Shearer appealed to the Supreme Court.
The Town of Richmond argued that the Superior Court was right to only weigh “neglect” and not “refuse,” as it was not initially briefed. Additionally, it argued that because of this, the complaint was not timely under the 60-day requirement of RSA 231:34, as more than 60 days passed between the November filing and Shearer first raising refusal. It also argued that this would be a new substantive claim, which cannot be raised in this type of motion. The Supreme Court disagreed.
The plaintiff argued and Court supported that the issue actually had been raised previously, thus it was preserved and not a new claim. It was raised by the Town of Richmond when it submitted its affidavit after the board of selectmen formally denied the petition. The Supreme Court, citing the dictionary definition of “refusal” and its 2011 ruling in Crowley v. Town of New London, said that the denial decision was refusal under RSA 231:38, I. Even if it had not already been raised, the Court implied that it would have been open for Superior Court review anyway. First, raising refusal late would not be inappropriate because the refusal itself had not happened until March, months after the initial complaint; second, New Hampshire’s courts follow the principle that a party should not lose because of a “procedural technicality.” In re Proposed Rules of Civil Procedure, 139 N.H. 512, 515 (1995). The motion for summary judgment for the town was reversed.
On the issue of whether to apply RSA 231:34 or 231:38, the Court said that RSA 231:38 applies because there was a refusal, not just a modification. Even if not, the 60-day tolling period under RSA 231:34would have started from the March decision, not the November filing.
The Supreme Court remanded the case back to the trial court after reversing its ruling on the town’s motion for summary judgment. It did not change the Superior Court’s denial of the plaintiff’s summary judgment motion, however. Now that neither of the opposing motions is granted, a trial shall be scheduled for the Superior Court to try the facts.
*This decision is a final order of the court. Final orders are distinguished from court opinions in that they decide the merits of a case but do not create binding precedent. Final orders may be cited in briefs but only if identified as a non-precedential order. They can be helpful as guidance but are not law. See N.H. Sup. Ct. R. 12-D(3) and 20(2).