2014-0063, Town of Bartlett v. Edward C. Furlong, III d/b/a Lil’ Man Snowmobile Rentals

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

Edward C. Furlong, III, self - represented party, by brie f.

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

No. 2014 - 0 0 63 3 d Circuit Co urt - Conway District Division

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

been sent to “client.” form for the 3d Circuit Court; however, the cover letter did contain the notation that a copy had as on the corresponding cover letters. The defendant was not copied by name on the withdrawal before this court and on his notice of withdrawal before the C arroll County Superior Court, as well The record shows that “Edward C. Furlong, III” was copied on Cooper’s motion to withdraw 1

along with a copy of th e withdrawal he filed on July p. 2 29. The defendant did not the notice and contends that he forwarded a copy of the notice to the defendant 18, 2012, for which n otice was sent on July 28, 2011. Cooper was copied on After our remand, a hearing was s cheduled in the trial court for January

our order and on two of Cooper’s motion s to withdraw. 1 withdraw in the underlying circuit court action. The defendant was copied on Carroll County Superior Court. On July p. 2 29, 2011, Cooper filed a motion to another matter between t he defendant and the Town that was pending in the January 2010. A t about the same time, Cooper filed a motion to withdraw in Esquire, filed a motion to wi thdraw in this court. W e granted the motion i n Before our order was issued, the defendant’s counsel, Randall Cooper,

(N.H. Jan. 5, p. 2 2011). Bartlett v. Edward Furlong d/b/a Lil’ Man Snowmobile Rentals, No. 2009 - 0712 vacated it in part, and remanded the case to the trial court. See Town of by order of January 5, 2011, we reversed the trial court’s decision in part, zoning ordinance was unconstitutional. T he T own appealed to this c ourt, and court dismissed the land use citation on August 17, 2009, ruling that the The defendant then filed a motion to dismiss. After a hearing, the trial

that the violation continued. that he could be fined $ p. 2 275 for the first day and $550 for e very day th ereafter land u se c itation complaint in the district court, which advised the defendant work without a permit. On December 1 2, 2008, the Board of Selectmen filed a the defendant did not submit further information and completed the renovation insufficient and explained what additional information was needed; however, permit. Each time, the T own notified him in writing that the applications were Thereafter, the defendant su bmitted two incomplete applications for a building and that he had the right to appeal to the Bartlett Zoning Bo ard of Adjustment. had violated Bartlett’s zoning ordinance, that he must cease all construction, the renov ations. The cease and desist notice informed the defendant that he s electmen meeting on November 7, 2008 - that he needed a building permit for and desist notice dated Novemb er 7, 2008, and in person at a board of Board of Selectmen n otified him - by letter dated October 17, 2008, by cease Bartlett, on which he began renovation work in the fall of 2008. The Bartlett The pertinent facts are as follows. The defendant owns property in

defe ndant’s brief, reply brief, and appendices. this appeal, we granted motions by the Town to strike portions of the The defendant filed this appeal on January 27, 2014. During the briefing of September 10. T he trial court denied all three motions on January 6, 2014. Pertinant [sic] Document/Letter to Motion to Correct Judici al Error,” on to Correct Ju dicial Error,” on August 26, 201 p. 3 3; and a motion “To Attach motion for reconsideration, the defendant also filed: a “Motion to Reopen Case operation was sched uled as part of a course of treatment. In addition to a reconsideration that the records submitted by the defendant indicated that the for Excusal.” The court noted in its denial of the defendant’s motion for support his assertion. On A ugust 14, 2013, the trial court denied the “Motion an unscheduled heart operation in June, and he submitted medical rec ords to motion, he stated that he was unable to attend the hearing on July 10 due to On July 22, 2013, the defendant filed a “Motion for Excusal.” In the

not the hearing that he missed on July 10. contends that this message pertained to another case between the parties and matter prior to ‘ our hearing in court on Monday,’” although the defendant voice mail message for the Town’s counsel indicating “a desire t o discuss the court that he would not attend. A day or two later, the defendant lef t a July 10, 201 p. 3 3. The defendant failed to appear at this hearing or to notify the for March 27, 2013. By order of April 18, 2013, t he hearing was continued to to Request a Hearing,” which the court granted, and a hearing was scheduled On January 4, 2013, the defendant filed “Defendant’s Emergency Motion

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

R equest s for Findings of Fact and Rulings of Law.” appear at the hearing, during which t he Town presented the “Town of Bartlett’s p. 4 4

see id. at p. 4 49. Because they fail to satisfy one or both of these criteria, w e will Blackmer, 149 N.H. 47, 48 (2003), and sufficiently developed fo r our review, that are preserved, meaning they were raised in the trial court, see State v. with respect to the defe ndant’s arguments, we address only those arguments time - barred, we assume with out decid ing that the appeal is timely. Second, although the Town makes an arguable point that the defendant’s appeal is At the outset, we dispose of certain issues in summary fashion. First,

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

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

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

all his motions at once and did so in an untimely manner. punishment.” Finally, he argues that the trial court erred because it rul ed on court was disproportionate so as to constitute “gross and unusual interest. The defendant additionally contends that the fine ordered by the trial him the opportunity to argue the issue of a s electman’s alleged conflict of further asserts that, by not granting him a new hearing, the trial court denied not granting a new hearin g in light of the withdrawal of his attorney. He than $25,000. He a lso argues that the court denied him due process of law by because the trial court did not have jurisdiction to impose a penalty greater O n appeal, the defendant argues that the fine should be rever sed

client . . . .” Dist. Div. R. 1.3 (I) (1). have been sent to all other counsel or opposing parties, if a ppearing pro se, and to counsel’ s filed by counsel shall clearly set forth the reason therefor and contain a certification that copies upon motion to permit such withdraw al granted by the Court . . . . Any motion to withdraw attorney’s appearance in a case after the case has been scheduled for trial or hearing, except Distric t Division Rule 1.3 (I) (1) states: “[N]o attorney shall be permitted to withdraw that 2 the hearing, and the trial court could sustainably have determined that the Cook, 12 p. 5 5 N.H. 452, 458 - 59 (1984). Further, his attorney withdrew well before proceeding, the defendant had no constitutional right to counsel. Cf. State v. Here, the trial court sustainably exercised its discretion. In this civil

sustain the discretionary judgment made.” Id. (quotation omitted). inquiry is wheth er the record establishes an objective basis sufficient to unreasonable to the prejudice of his case.” Id. (quotation omitted). “Our defendant must demonstrate that the court’ s ruling was clearly untenable or omitted). “To show that the trial court ’ s decision is not sustainable, the exercise of discretion.” Walker v. Walker, 1 p. 5 58 N.H. 602, 607 (2009) (quotation trial court’s decision on a motion for reconsideration absent an unsustainable essence, a request for reconsideration of its earlier order. “We will uphold a The defendant’s request that the trial court hold a new hearing was, in

N.H. 29 p. 5 5, 296 (2001). sufficient to sustain the discretionary judgment made.” State v. Lambert, 147 circumstances of the defendant’s absence, supported by an “objective basis the trial court mad e a factual ruling in fa vor of the Town regarding the mistakenly calendared the hearing for the wrong date. The Town argues that capability of contactin g the court prior to the hearing and suggests that he and that his call to its counsel a day or two after the hearing demonstrated his defendant’s medical records show that his surgery was scheduled in advance, defendant’s reasons for missing the second hearing, asserting that the his attorney. The Town also contends that the record does not support the attorney’s withdrawal and time to prepare for the first hearing in the absence of grant a third hearing. The Town argues that the defendant had notice of his defendant did not attend, and that it was within the court’s discretion not to the defendant another hearing after his attorney withdrew, which the this denied him due process. The Town responds t hat the trial court did grant withdrew from the case, without complying with Court Rule 1.3 I(1),” and that 2 the Defendant a hearing or take action when the Defendant’s attor ney The defendant argues that the trial court erred when it “failed to grant

of his motions at one time. conflict of i nterest of the selectmen; and (3) the trial court erred by denying all unusual punishment”; (2) he was denied the right to challenge the alleged not address the defendant’s arguments that: (1) the fine constitut ed “gross and p. 6 6

trial court as t he district court throughout this opinion. case was filed before the circuit court was established, for ease of understanding, we refer to the was subsumed by the newly created circuit court. See RSA 490 - F:3 (Supp. 2014). Because this Effective July 1, 2011, the jurisdiction that RSA 504 - A:14 conferred to the former district court 3

278. However, the statutes that we had previously interpreted in that manner individual violations exceeds the jurisdictional limit in RSA 502 - A:14, II.” Id. at retain jurisdiction even though the aggregate amount of damages a warded for We recognized that “the district court may, under certain circumstances,

e ach, and was, therefore, lawful. Town of Amherst, 157 N.H. at 277. the violation continued, the penalty imposed was 154 separate awards of $275 because RSA p. 6 676:17, I, imposed a fine of $275 for the first offense f or each day that the penalty exceeded the jurisdictional limit of the court, but argued that which the damages claimed do not exceed $25,000”). The plaintiff conceded concurrent jurisdiction with superior court “of civil actions for damages in in excess of $25,000. Id. at 277; see RSA 502 - A: 14, II (1997) (district court has unlawful because the district court lacked jurisdiction to impose a civil pe nalty Town of Amherst, 157 N.H. at 276. The defendant argued that the penalty wa s imposed a civil penalty of $42,350 pursuan t to RSA 676:17, I (Supp. 2007). In Town of Amherst, the defendant appealed a district court order that

effective date of the amendment. to the instant case, which was filed before, but not decided until after, the substanti ve change in the law and therefore should be applied retrospectively Laws 2009, 173:1. The T own contends that the amendment was not a RSA p. 6 676:17, I, was amended shortly after our ruli ng in Town of Amherst. See than $25,000 pursuant to RSA 676:17, I. The Town responds by noting that Town of Amherst prohibits the district court from imposing a penalty greater which limits the district court’s jurisdiction to claims not exceed ing $25,000, 3 defendant contends that, w hen read together with RSA 502 - A:14, II (2010), v. Gilroy, 157 N.H. 275 (2008), s uperseded by statute, Laws 2009, 173:1. The 676:17, I, was Town of Amherst v. Rosemary A. Gilroy.” See Town of Amherst 2008, when, he argues, “the controlling law for the interpretation of RSA $344,025 fine pursuant to RSA 676:17, I. This case was filed in December The defendant next argues that th e trial court erred by imposing a

not sufficiently developed for our review. See Blackmer, 149 N.H. at 49. other relief or taken other action after his attorney withdrew, this argument is the defendant argues that the trial court should have provided him with some ad ditional hearing affords u s no basis for upsetting its judgment. To the extent case was prejudiced in any way. T hus, the court’s refusal to grant him an counsel if he desired to do so. Moreover, t he defendant has not shown that his defendant was aware of the withdrawal and had ample time to secure other p. 7 7

of the continuance of existing law; it must have become a title, legal or vested, a right must be more than a mere expectation based on an anticipat ion the other hand, “[s]ubstantive rights are vested rights.” Id. at 360. “[T]o be Matter of Kenick & Bailey, 156 N.H. 356, 359 (200 p. 7 7) (quotation omitted). On is one designed to cure a mischief or remedy a defect in existing laws.” In the remedial in nature or, instead, affects substantive rights. “A remedial statute We thus must determine whether the amendment to RSA 676:17, I, is

promote justice.” Id. (quotation omitted). fundamental fairness, because the underlying purpose of all legislation is to analysis, the question of retrospective application rests on a determination of applied retroactively.” Id. (quotation omitted). “Nevertheless, in the final adversely affect an individual’s substantive right s, however, it may not be time of enactment.” Id. (quotation omitted). “If application of a new law would remedial or procedural in nature, it may be applied to cases pending at the substantive or procedural rights.” Id. (quotation omitted). “When a statute is here, our interpretation turns on whether the statute affects the parties’ whether a statute should apply prospectively or retrospectively, as is the case 599, 602 (2014) (quotation omitted). “When the legislature is silent as to prospectively.” Autofair 14 p. 7 77, L.P. v. American Honda Motor Co., 166 N.H. “We have long held that statutes are presumptively intended to operate

should be applied to this case. Accordingly, the issue we mu st decide is whether the statutory amendment was entered by the district court until after the amendment took effect. citation in the instant case was filed o n December 12, 2008, but no judgment 2009 and took effect on September 11, 2009. Laws 2009, 1 p. 7 73:2. The land use a se parate offense.” Laws 2009, 173:1. This amendment was passed in July by adding language stating that “[e]ach day that a violation continues shall be The legislature responde d s oon thereafter and amended RSA 676:17, I,

incon sistent with its intent. Id. that the legislature was free to clarify RSA 6 p. 7 76:17, I, if our interpretation was authority to impose a civil penalty in excess of $25,000.” Id. We als o stated violation is a single offense, we conclude[d] that the district court lacked constitutes a separate offense, and, in fact, indicate[d] that a continuing Therefore, “because RSA 676:17, I, [did] not indicate that each day of violation has a different meaning than a statute that contains one.” Id. at 279. construction, we “assume[d] that a statute that lacks a similarly worded phrase separate offense.” Town of Amherst, 157 N.H. at 27 p. 8 8. Following our can ons of Town of Henniker, does not provide that each day of violation constitutes a of Amherst that “RSA 676:17, I, unlike the statutes at issue in Simpson and 136 N.H. 88, 90 (1992) (interpreting RSA 236:114 (1993)). W e stated in Town 471, 478 (2006) (interpreting RSA 540 - A:4 (2007)); Town of Henniker v. Homo, sh all co nstitute a separate violation.” See, e.g., Simpson v. Young, 153 N.H. contained explicit language providing that “each day that a violation continues 8

the court did not change substantive rights. Sholley, 111 N.H. at 365. We N.H. 363 (1971), we held that a statute expanding in personam jurisdiction of 325. Similarly, in Property Owners Ass’n at Suissevale, Inc. v. Sholley, 111 judgment action does not in itself make the amendment substantive.” Id. at the parties’ relative positions by allowing the plaintiff to file a declaratory “The fact that implementation of the amende d version of RSA 491:22 may alter through which to determine its existing rights.” Id. at 324. We further stated, determined that “the legislature merely gave the [party] another avenue was filed in f ederal court.” Workplace Systems, 143 N.H. at 323 - 24. We court to entertain a declaratory judgment action” when the “underlying writ 491:22 (19 p. 8 83) that “expand[ed] the subject matter jurisdiction of the superior Insurance Co., 143 N.H. 322 (1999), we examined an amendm ent to RSA other contexts. In Workplace Systems, Inc. v. CIGNA P roperty & Casualty addressed the retroact ivity of jurisdiction - expanding statutory amendments in We have not addressed the exact issue presented here, but we have

166 N.H. at 602. conside r the amendment’s actual effect on the parties’ rights. See Autofair, $25,000. Although the legislature’s intent clearly was remedial, we also must in the district court if the penalties for ongoing violations could exceed Amherst, that coul d deter municipalities from filing zoning enforcement cases to remedy a perceived defect in the law, based up on our decision in Town of This legislative history demonstrates that the amendment was intended

municipalities out of District Court . . . .” N.H.S. Jour. 2064 (2009). recent New Hampshire Supreme Court decision whic h will keep many separate offense. The reason this clarification is necessary is because of a clarifies that each day of a violation for a land use ordinance constitutes a N.H.H. R. Jour. 64 (2009). This purpose was echoed in the Senate: “This bill

district court where the procedures are simpler and faster. municipalities the option of prosecuting all zoning violations in offense. This change, making each day a separate offense, gives continuing violation could exceed t his limit if treated as a single which the damages or penalties do not exceed $25,000. A District courts however, have jurisdiction only over those cases in laws may be prosecuted in either district or superior court. interpretation of zoning statutes. Violations of municipal land use This bill fixes a problem resulting from a recent supreme court

introduced in the House with a curative purpose: In this case, the bill to amend RSA 676:17, I, House Bill 106, was

151 N.H. 770, 774 (2005) (quot ation omitted). exemption from the demand of another.” In the Matter of Goldman & Elliott, equitable, to the present or future enforcement of a demand, or a legal p. 9 9

Constitutional Questions,” which he filed on June 23, 2015. He has failed to We now address the defendant’s “Motion for Rule 16 - A ‘Plain Error,’

penalty of $344,025 on the defendant. hold that the trial court did not exceed its authority when it imposed the limit in RSA 502 - A:14, II.” Town of Amherst, 157 N.H. at 278. Accordingly, we amount of damages award ed for individual violations exceeds the jurisdictional RSA 676:17, I, the district court has jurisdiction “even though the aggregate “[e]ach day that a violation continues shall constitute a separate violation,” c ase. Because the amended statute contains explicit language providing that court is remedial, and therefore, the amendment can be applied to the instant collect more than $25,000. This expansion of the jurisdiction of the district Town was relieved of the need to transfer to superior court if it wanted to matter to superior court. The only consequence of the amendment is that the before the statute was amended and the Town could have transferred the consequence because the district court never entered a judgment on the claim fact that the Town actually filed t he matter in district court at that time is of no claim, and been awarded the exact same judgment, in the superior court. The at 325. Prior to the amendment, the Town could have brought the exact same rights to b e adjudicated in an additional forum.” Workplace Systems, 143 N.H. violation s he committed. The amendment “merely allows the parties’ respective substantive rights. He was al ways subject to the same penalties for the Here, the amendment to RSA 676:17, I, did not change the defendant’s

(1 p. 9 983). the effective date of the new law.” LaBarre v. Daneault, 123 N.H. 267, 272 and, therefore, “should be applied only to causes of action which arose after accident,” it imposed “new liabilities upon defendants of a substantive nature” “would increase the defendant’s liability over what it was at the time of the establishes any new duties.”). In contrast, we have held that when a statute case, relates to antecedent facts, but it neither creates any new obligations nor 136 N.H. 611, 615 (1993) (“The statute, when applied to the facts of the present place before the statute became effective.” Id.; see also Eldridge v. Eldridge, date even though the actions which determined the substantive rights took that such statutes “are call ed remedial and become operative on their effective her possessory rights by the district court.” Smith, 114 N.H. at 641. We held be followed by the plaintiff to appeal to the superior court the decision made of amended s tatute, RSA 540:25 (Supp. 1973), which governed “the procedure to In Smith v. Sampson, 114 N.H. 638 (1974), the issue concerned an

before or after the new statute.” Id. but his rights remain the same whether he is answering for acts committed that [the defendant] must answer for his acts here rather than another forum, stated: “The increased reach of our jurisdiction provi ded by the statute means p. 10 10

DALIANIS, C.J.