2009-085, JOANNE RADZIEWICZ & a. v. TOWN OF HUDSON

The petitioners, Joanne and Peter Radziewicz, appeal an

of law), for the respondent. Hage Hodes, P.A., of Manchester (David E. LeFevre on the memorandum

Joanne Radziewicz and Peter Radziewicz, by brief, pro se. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. JOANNE RADZIEWICZ & a.

No. 2009-085 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 the period so computed shall be included, unless it is a Saturday,

p. 2 deadline. Nonetheless, they argue that the provisions of Rule 12(1) control. jurisdiction in the superior court, and that they failed to comply with this followed. mandates that appeals be filed within thirty days in order to establish 2

rules, by order of court, or by applicable law, . . . [t]he last day of initial order denying the motion was issued. the town did not file a motion for reconsideration or request a hearing when the

exist.”

statutory timeframe deprive[d] . . . [it] of appellate jurisdiction.” This appeal deadline to the following Monday. The petitioners concede that RSA 677:4

In computing any period of time prescribed or allowed by these

superior court rules barred the trial court from reconsidering the issue because Rule 12(1) provides:

proceedings because jurisdiction cannot be conferred where it does not already

initial order denying the motion dictated that “failure to comply with a for rehearing fell on a Saturday, and that, accordingly, Rule 12(1) extended the motion, reasoning that decisions of this court that had been issued since its superior court because the thirtieth day from the ZBA’s denial of their motion matter jurisdiction due to untimely filing. The superior court granted the Next, the petitioners argue that they timely filed their appeal to the

trial court did not err in revisiting its earlier ruling. required to file a motion for reconsideration or to request a hearing, and the The superior court initially denied the town’s motion to dismiss. earlier denial of the town’s motion to dismiss. Specifically, they claim that requirements that confer jurisdiction.” Id. Accordingly, the town was not “The superior court has no discretion when dealing with statutory time Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575 (2003).

issue of subject matter jurisdiction may be raised at any time in the or decree. Goudreault v. Kleeman, 158 N.H. 236, 249 (2009). In addition, “the The trial court has the power to reconsider an issue until final judgment

the petition. The town orally renewed its motion to dismiss for lack of subject

Court Rule 12(1) permitted them to file the appeal on the following Monday. The petitioners first argue that the trial court erred by reversing its

On September 29, 2008, the parties attended a hearing on the merits of

arguing that because the thirtieth day had fallen on a Saturday, Superior the [ZBA] voted to deny the motion for rehearing”). The petitioners objected, ZBA decision to the superior court “within 30 days after the date upon which accordingly, lacked subject matter jurisdiction. See id. (allowing for appeal of a moved to dismiss, arguing that the appeal was untimely and that the court, court could, at that time, waive the strict application of its rules.

p. 3 filing of the decision.”

from “accident, mistake or misfortune,” the standard by which the superior

jurisdiction . . . must be distinguished from the superior court’s

upon which the [ZBA] voted to deny the motion for rehearing.”

allow their petition because their noncompliance with the deadline resulted superior court of subject matter jurisdiction.”

thirty-one days after a decision of the Gilford Planning Board. The applicable

[s]tatutory time requirements relative to the vesting of

see Super. Ct. R. Preface (amended 1999). We disagreed, holding that appeals of ZBA decisions only if a petition is filed “within 30 days after the date Id. at 296-97;

omitted). The petitioners argued that the superior court had the discretion to establishing jurisdiction and failure to timely move for rehearing divests the Dermody, 137 N.H. at 295 (quotation and emphasis

294 (1993). In that case, the petitioners filed an appeal in the superior court is required to vest the trial court with jurisdiction.” We addressed a similar issue in Dermody v. Town of Gilford, 137 N.H.

thirtieth day falls on a Saturday. We agree. rule applies here. RSA 677:4 vests jurisdiction in the superior court for Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 712 (2008). The same

I (2008), “compliance with the deadline is a necessary prerequisite to Plainfield, 156 N.H. 265, 267 (2007). We have also held that under RSA 677:3,

held that “strict compliance with the thirty-day filing deadline of RSA 677:15, I, which we review timelines to establish jurisdiction in the superior court. For example, we have provisions, we have held that parties must comply with the required statutory In construing other sections of RSA chapter 677 containing similar

RSA 677:4 does not allow for filing an appeal beyond thirty days when the Id. at 119. might have said or add language that the legislature did not see fit to include. intent from the statute as written and will not consider what the legislature ordinary meaning to the words used. legal holiday . . . . Id. at 118-19. We interpret legislative whole. Id. When examining the language of a statute, we ascribe the plain and legislature’s intent as expressed in the words of a statute considered as a (2008). In matters of statutory interpretation, we are the final arbiters of the

de novo. See Upton v. Town of Hopkinton, 157 N.H. 115, 118

The interpretation and application of RSA 677:4 is a question of law,

The trial court ruled that notwithstanding Rule 12(1), the plain language of

until the end of the next day that is not a Saturday, Sunday, or a Sunday, or a legal holiday, in which event the period shall extend support by legal argument or authority warrants extended consideration. p. 4 constitutional claims nor off-hand invocations of constitutional rights without

without developed legal argument, and neither passing reference to

judicial review is not warranted for complaints regarding adverse rulings and do not develop this argument further. We have repeatedly stated that the next business day. States Constitutions.” They cite no particular provisions of either constitution

statutory filing deadlines which fall on a Saturday to automatically extend to law and fundamental fairness pursuant to the New Hampshire and United

jurisdiction that did not exist in the first instance.

21:35, II (Supp. 2008) (amended 2008) was amended to specifically permit last-minute, oral Motion To Dismiss deprived the Petitioners of due process of We note that after the petitioners’ appeal was filed in the trial court, RSA

this argument further. Saturday deadlines, and the petitioners point to none. v. Town of Temple, 157 N.H. 642, 658 (2008). We therefore decline to address

recognized as a dies non juridicus,” a day on which no judicial act or court never had jurisdiction, and could not rely upon Rule 12(1) to establish transaction of business on Sunday,” and because Sunday was “generally Because the petitioners’ appeal was not filed within thirty days, the superior was a necessary prerequisite to establishing jurisdiction in the superior court.

business day was timely. Finally, the petitioners argue that “[e]ntertaining the Town of Hudson’s

know of no comparable recognized principle in the common law with regard to

existence at that time “prohibiting the performance of work and labor and the the computation.” Id. This recognized principle arose from statutes in governs the petitioners’ appeal. Compliance with the thirty-day filing deadline terminal day of a time limit falls upon Sunday that day is to be excluded from however, was based upon the common law “recognized principle that when the

deadline at issue fell on a Sunday, and we held that a motion filed the next H I K Corporation v. Manchester, 103 N.H. 378, 381 (1961). In that case, the The petitioners next argue that their petition was timely filed based upon jurisdiction in the superior court in the first instance. other contexts, the court cannot use this concept to establish

court’s conclusion that the plain meaning of the statute, and not Rule 12(1), The same reasoning applies to this case, and we agree with the trial

Dermody, 137 N.H. at 296-97 (citation omitted).

to apply its concept of accident, mistake or misfortune in some own procedural rules. While the superior court has the discretion p. 5 5

filing deadline.

before us, we are bound by the statute in effect at the time of the petitioners’

from a ZBA decision where it is already lacking. Moreover, in deciding the case procedural rules cannot establish subject matter jurisdiction for an appeal circumstances of their case. We disagree. As stated above, superior court

BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

Petitioners’ plea for application of Superior Court Rule 12(1)” to the amendment “is a clear indication that [the legislature] would support the