2006-694, TOWN OF AMHERST v. ROSEMARY A. GILROY

The defendant, Rosemary A. Gilroy, appeals the order of

Center, as amicus curiae. Paul G. Sanderson, of Concord, by brief, for The Local Government

Rosemary A. Gilroy, by brief, pro se.

Fernald on the brief), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Bradley, Burnett, Kinyon, Fernald & Green, P.A., of Keene (Beth R.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-694 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Milford District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as court’s July 10, 2006 order would stand.

p. 2 conditional default judgment entered against her. the plaintiff’s attorney’s fees and costs before the court would strike the

funds and, if the defendant failed to tender payment by August 1, 2006, the hearing. The court stated that it would schedule a hearing once it received the that the defendant pay the Town’s attorney’s fees and costs before the next than comply with the trial court’s latest order, the defendant appealed it. to remove her shed or bring it into compliance to August 28, 2006. Rather sustainably exercised its discretion by imposing the condition that she first pay 2006. The court also extended the deadline by which the defendant had either

and awarding attorney’s fees and costs to the Town.

date on [her] calendar.” The trial court granted the motion with the condition

notice of the July 10, 2006 hearing, we conclude that the trial court extended the deadline for payment of attorney’s fees and costs to August 21,

its discretion; we will not disturb such a ruling unless the court unsustainably including imposing monetary sanctions against either counsel or a party, her. “The trial court’s decision whether to strike an entry of default is within violation of any rule, court may take such action as justice may require, granting her motion to vacate the p. 2 conditional default judgment entered against Co. v. Glendale Homes, 104 N.H. 312, 313-14 (1962); cf. Dist. Ct. R. 1.2 (upon $275 per day for each day of violation from February 6, 2006, to July 10, 2006, See Indian Head Millwork entered a conditional default judgment against her, imposing a civil penalty of date, the defendant had not removed the shed. Accordingly, the trial court page of [her] calendar to July, 2006” and, therefore, “did not see the [h]earing

the circumstances of this case, where the defendant indisputably received 12, 2006 order. On August 16, 2006, the trial court denied the motion, but & Maynard, 155 N.H. 630, 633 (2007) (quotation and brackets omitted). Under

The defendant first argues that the trial court erred by provisionally

without the proper site plan review and surveyor certificate. As of the hearing alleging that she “had been busy and had neglected to change the June, 2006

2006, the penalty would be stricken. On July 21, 2006, the defendant moved for reconsideration of the July

Town’s zoning and building ordinances by constructing a shed on her property On July 12, 2006, the defendant filed a motion to vacate the default, 6, 2006, the defendant had received notification that she had violated the upon the evidence presented at the hearing, the court found that, on February compliance with the applicable regulations and ordinances by August 15, however, that if the defendant either removed the shed or brought it into total civil penalty imposed was $42,350 ($275 X 154 days). The court ruled,

scheduled for July 10, 2006, at which the defendant failed to appear. Based property in violation of certain regulations and ordinances. A hearing was penalty awarded as 154 separate awards in the amount of $275 each. p. 3 “for each day that such violation is found to continue,” the court must view the

violation continues shall constitute a separate violation.” We held that the

who violates a zoning ordinance to a civil penalty of $275 for the first offense

reasonable attorney’s fees incurred in the proceedings. Each day that a

in RSA 502-A:14, II, it counters that because RSA 676:17, I, subjects a person

subject to the civil remedies set forth in RSA 358-A:10, including costs and

the plaintiff concedes that the penalty exceeded the jurisdictional limit set forth court lacked jurisdiction to impose a civil penalty in excess of $25,000. While whole. $25,000.” The defendant contends that pursuant to these statutes, the district RSA 502-A:14, II.

tenant who violates RSA 540-A:2 or any provision of RSA 540-A:3 shall be Simpson, 153 N.H. at 477-78. Pursuant to RSA 540-A:4, IX: “Any landlord or A:4 (2007), which governs damages in certain landlord/tenant actions. In Simpson, we were concerned with damages awarded under RSA 540-

136 N.H. 88, 90 (1992). legislature’s intent as expressed in the words of the statute considered as a “of civil actions for damages in which the damages claimed do not exceed In matters of statutory interpretation, we are the final arbiters of the Simpson, 153 N.H. at 477; cf. Town of Henniker v. Homo, damages awarded for individual violations exceeds the jurisdictional limit in circumstances, retain jurisdiction even though the aggregate amount of We have previously recognized that the district court may, under certain

language that the legislature did not see fit to include. Id. as written and will not consider what the legislature might have said or add meaning to the words used. Id. We interpret legislative intent from the statute examining the language of the statute, we ascribe the plain and ordinary ElderTrust of Fla. v. Town of Epsom, 154 N.H. 693, 697 (2007). When

part, that the district court has concurrent jurisdiction with the superior court Resolving this issue requires that we engage in statutory interpretation. set forth in RSA 502-A:14, II (1997). RSA 502-A:14, II provides, in pertinent exceed the limits of the district court’s civil damages concurrent jurisdiction as Simpson v. Young, 153 N.H. 471, 477 (2006).

vacated, the $42,350 civil penalty is unlawful. We agree.

punishable by a civil penalty, in which case the penalty imposed shall not ordinance, code or regulation to the extent that the violation is, inter alia, jurisdiction with the superior court to prosecute any violation of a local Under RSA 502-A:11-a, I (1997), the district court has concurrent

The defendant next asserts that, assuming that the default is not

party). which may include reasonable attorney’s fees and costs to be paid to opposing the statutes at issue in

p. 4 offense” in RSA 236:127 have meaning. We also assume that a statute that

continue.” The Town acknowledges that RSA 676:17, I, differs in this way from

RSA 540-A:4, IX and “each day or fraction thereof shall constitute a separate

and $550 for subsequent offenses for each day that such violation is found to word of a statute should be given effect.

day an individual violates a zoning ordinance.”

“[e]ach day that a violation continues shall constitute a separate violation” in School Dist., 143 N.H. 331, 339 (1999). Therefore, we assume that the words RSA 676:17, I, subjects a person to a “civil penalty of $275 for the first offense Marcotte v. Timberlane/Hampstead to waste words or enact redundant provisions and whenever possible, every with our principles of statutory construction. The legislature is not presumed meaning as the statutes at issue in Simpson and Town of Henniker conflicts The Town’s insistence that we interpret RSA 676:17, I, to have the same

shall constitute a separate offense.” “clear that [RSA 676:17, I] authorizes a separate, individual penalty for each

depriving them of a jury trial. not provide that each day of violation constitutes a separate offense. Rather 676:17, I, unlike the statutes at issue in Simpson and Town of Henniker, does In this case, the statute under which the defendant was penalized, RSA 606 days of violation, or $6,060. RSA 236:114 (1993), for which the trial court had fined them $10 per day for the fine imposed for each day of violation was less than $500. See id. defendants did not have a right to a jury trial on any of their violations because

this subdivision shall be guilty of a violation and each day or fraction thereof RSA 502-A:14, II. (1993), which provides: “Any person who is in violation of any provisions of was actually $10 for each of 606 separate violations, relying upon RSA 236:127 award would consist of thirty-four separate awards of $1,000 each. violation continues shall constitute a separate violation,” a $34,000 damage Id. at 89. We concluded that the fine imposed that entitled civil litigants to a jury trial at the time, the trial court erred by holding that because RSA 540-A:4, IX(a) provided that “[e]ach day that a defendants argued that because the fine imposed exceeded $500, the amount

defendants in that case maintained an unlicensed junk yard, in violation of We relied upon similar statutory language in Town of Henniker. The

Such a damage award, we held, would be consistent with the limits set forth in

the district court lacked jurisdiction to award this amount, we disagreed, could be entitled to $34,000. Id. at 47 p. 5 5. Although the landlord argued that tenant’s access to the premises for thirty-four days, on remand, the tenant 474-75. We further held that because the landlord had interfered with the each day that the landlord continually violated RSA 540-A:3, I-III (2007). Id. at district court erred when it failed to award the tenant $1,000 in damages for 5

with its intent. legislature is free to clarify RSA 676:17, I, if our interpretation is inconsistent

opinion.

violation under RSA 676:17, I, therefore, constitutes a single offense. The

vacate the civil penalty and remand for further proceedings consistent with this

BRODERICK, C.J., and DALIANIS, GALWAY, and HICKS, JJ., concurred.

meaning as the statutes at issue in lacked authority to impose a civil penalty in excess of $2 p. 5 5,000. We therefore continuing violation is a single offense, we conclude that the district court violation constitutes a separate offense, and, in fact, indicates that a Accordingly, because RSA 676:17, I, does not indicate that each day of

See Simpson, 1 p. 5 53 N.H. at 479.

have drafted RSA 676:17, I, so that it too indicated that each day of violation

contains one. Had the legislature intended RSA 676:17, I, to have the same lacks a similarly worded phrase has a different meaning than a statute that