Town of Bartlett v. Furlong

• Decision Date: 22 September 2015
• Docket Number: No. 2014–0063,2014–0063
• Citation: 168 N.H. 171,124 A.3d 221
• Parties: TOWN OF BARTLETT v. Edward C. FURLONG, III d/b/a Lil' Man Snowmobile Rentals
• Court: New Hampshire Supreme Court

168 N.H. 171

124 A.3d 221

TOWN OF BARTLETT

v.Edward C. FURLONG, III d/b/a Lil' Man Snowmobile Rentals

No. 2014–0063

Supreme Court of New Hampshire.

Submitted: April 9, 2015

Opinion Issued: September 22, 2015

Donahue, Tucker & Ciandella, PLLC, of Exeter (Christopher T. Hilson on the brief), for the plaintiff.

Edward C. Furlong, III, self-represented party, by brief.

LYNN, J.

The defendant, Edward C. Furlong, III, appeals an order of the Circuit Court (Albee , J.) awarding judgment in favor of the plaintiff, the Town of Bartlett (Town), in a zoning enforcement action. See RSA 676:17 (Supp. 2014). The defendant's primary argument on appeal is that the trial court exceeded its jurisdiction by imposing a fine in excess of $25,000, but he also raises various collateral claims of error. Finding his arguments lacking in merit, we affirm the judgment of the trial court.

I

The pertinent facts are as follows. The defendant owns property in Bartlett, on which he began renovation work in the fall of 2008. The Bartlett Board of Selectmen notified him—by letter dated October 17, 2008, by cease and desist notice dated November 7, 2008, and in person at a board of selectmen meeting on November 7, 2008—that he needed a building permit for the renovations. The cease and desist notice informed the defendant that he had violated Bartlett's zoning ordinance, that he must cease all construction, and that he had the right to appeal to the Bartlett Zoning Board of Adjustment. Thereafter, the defendant submitted two incomplete applications for a building permit. Each time, the Town notified him in writing that the applications were insufficient and explained what additional information was needed; however, the defendant did not submit further information and completed the renovation work without a permit. On December 12, 2008, the Board of Selectmen filed a land use citation complaint in the district court, which advised the defendant that he could be fined $275 for the first day and $550 for every day thereafter that the violation continued.

The defendant then filed a motion to dismiss. After a hearing, the trial court dismissed the land use citation on August 17, 2009, ruling that the zoning ordinance was unconstitutional. The Town appealed to this court, and by order of January 5, 2011, we reversed the trial court's decision in part, vacated it in part, and remanded the case to the trial court. See Town of Bartlett v. Edward Furlong d/b/a Lil' Man Snowmobile Rentals, No. 2009–0712 (N.H. Jan. 5, 2011).

Before our order was issued, the defendant's counsel, Randall Cooper, Esquire, filed a motion to withdraw in this court. We granted the motion in January 2010. At about the same time, Cooper filed a motion to withdraw in another matter between the defendant and the Town that was pending in the Carroll County Superior Court. On July 29, 2011, Cooper filed a motion to withdraw in the underlying circuit court action. The defendant was copied on our order and on two of Cooper's motions to withdraw.¹

After our remand, a hearing was scheduled in the trial court for January 18, 2012, for which notice was sent on July 28, 2011. Cooper was copied on the notice and contends that he forwarded a copy of the notice to the defendant along with a copy of the withdrawal he filed on July 29. The defendant did not appear at the hearing, during which the Town presented the "Town of Bartlett's Requests for Findings of Fact and Rulings of Law."

After missing the hearing, the defendant filed three pleadings: (1) "Defendant's Motion to Accept Late Filing of Request for a New Hearing" dated January 19, 2012; (2) "Response to Plaintiff's Objection to Defendant's Motion for New Hearing" dated January 30, 2012; and (3) "Motion to Dismiss" dated January 30, 2012. On December 19, 2012, the trial court ruled on all outstanding issues, denying the defendant's motions and granting the Town's request for findings of fact and rulings of law. As part of its ruling, the trial court found: "The Defendant's violation of the zoning ordinance has gone on for a total of 1,132 days, calculated from the date of the land use citation to the date of the final hearing on January 18, 2012." The court gave the defendant a credit of 506 days for the period while the appeal was pending, which left 626 days during which he was in violation. Pursuant to RSA 676:17, I, the court imposed a fine of $275 for the first day of violation and 625 fines of $550 for each subsequent day, for a total fine of $344,025. The court ordered the Town to provide an affidavit of fees within ten days of the decision. The Town submitted an affidavit of fees and costs on December 27, 2012.

On January 4, 2013, the defendant filed "Defendant's Emergency Motion to Request a Hearing," which the court granted, and a hearing was scheduled for March 27, 2013. By order of April 18, 2013, the hearing was continued to July 10, 2013. The defendant failed to appear at this hearing or to notify the court that he would not attend. A day or two later, the defendant left a voicemail message for the Town's counsel indicating "a desire to discuss the matter prior to ‘our hearing in court on Monday,’ " although the defendant contends that this message pertained to another case between the parties and not the hearing that he missed on July 10.

On July 22, 2013, the defendant filed a "Motion for Excusal." In the motion, he stated that he was unable to attend the hearing on July 10 due to an unscheduled heart operation in June, and he submitted medical records to support his assertion. On August 14, 2013, the trial court denied the "Motion for Excusal." The court noted in its denial of the defendant's motion for reconsideration that the records submitted by the defendant indicated that the operation was scheduled as part of a course of treatment. In addition to a motion for reconsideration, the defendant also filed: a "Motion to Reopen Case to Correct Judicial Error," on August 26, 2013; and a motion "To Attach Pertinant [sic ] Document/Letter to Motion to Correct Judicial Error," on September 10. The trial court denied all three motions on January 6, 2014. The defendant filed this appeal on January 27, 2014. During the briefing of this appeal, we granted motions by the Town to strike portions of the defendant's brief, reply brief, and appendices.

II

On appeal, the defendant argues that the fine should be reversed because the trial court did not have jurisdiction to impose a penalty greater than $25,000. He also argues that the court denied him due process of law by not granting a new hearing in light of the withdrawal of his attorney. He further asserts that, by not granting him a new hearing, the trial court denied him the opportunity to argue the issue of a selectman's alleged conflict of interest. The defendant additionally contends that the fine ordered by the trial court was disproportionate so as to constitute "gross and unusual punishment." Finally, he argues that the trial court erred because it ruled on all his motions at once and did so in an untimely manner.

The Town argues that the defendant's entire appeal is untimely and, therefore, should be dismissed. In response to the defendant's other arguments, the Town contends that: (1) the trial court properly exercised its discretion in not granting a further hearing because two hearings were scheduled and the defendant failed to appear at both of them; and (2) the defendant's jurisdictional argument fails because RSA 676:17, I, was amended while this case was pending.

After the case was submitted, the defendant filed a "Motion for Rule 16–A ‘Plain Error,’ Constitutional Questions" on June 23, 2015. In the motion, the defendant raised several issues not properly in the record, or that we had already stricken from the record. The defendant asked that we: (1) contact the Carroll County Superior Court to confirm facts the defendant alleges; (2) review all the material submitted in his original Rule 7 Petition; (3) dismiss the land use action; (4) remand the case to the trial court to allow him to litigate additional issues involving members of the Bartlett Board of Selectmen; (5) stay our decision until the Superior Court hears cases involving certain members of the Board of Selectmen; and (6) award money damages to the defendant.

The Town objected to the motion, requesting that we deny the relief sought in the motion and that we require the signature of a licensed attorney on any further pleading or brief submitted by the defendant to this court in connection with this matter.

III

At the outset, we dispose of certain issues in summary fashion. First, although the Town makes an arguable point that the defendant's appeal is time-barred, we assume without deciding that the appeal is timely. Second, with respect to the defendant's arguments, we address only those arguments that are preserved, meaning they were raised in the trial court, see State v. Blackmer, 149 N.H. 47, 48, 816 A.2d 1014 (2003), and sufficiently developed for our review, see id. at 49, 816 A.2d 1014. Because they fail to satisfy one or both of these criteria, we will not address the defendant's arguments that: (1) the fine constituted "gross and unusual punishment"; (2) he was denied the right to challenge the alleged conflict of interest of the selectmen; and (3) the trial court erred by denying all of his motions at one time.

IV

The defendant argues that the trial court erred when it "failed to grant the Defendant a hearing or take action when the Defendant's attorney withdrew from the case, without complying with Court Rule 1.3 I(1),"² and that this denied him due process. The Town responds that the trial court did grant the defendant another hearing after his attorney withdrew, which the defendant did not attend, and that it was within the court's discretion not to grant a third hearing. The Town argues that the defendant had notice of his attorney's withdrawal and time to prepare for the first hearing in the...