2019-0719, Krainewood Shores Association, Inc. & a. v. Town of Moultonborough & a.

jurisdiction, and in denying the plaintiffs ’ motion to amend their complaint. erred in granting the defendants ’ motion to dismiss for lack of subject matter (Town) and TYBX3, LLC. On appeal, the plaintiffs argue that the trial court grant the motion to dismiss filed by the defendants, Town of Moultonborough Cat Island Civic Association, appeal a Superior Court (Ignatius, J.) decision to HICKS, J. The plaintiffs, Krainewood Shores Association, Inc. and Black

TYBX3, LLC. Stephan T. Nix, of Gilford, on the joint brief and orally, for defendant

the joint brief and orally), for defendant Town of Moultonborough. Drummond Woodsum & MacMahon, of Manchester (Matthew R. Serge o n

orally), for the plaintiffs. J ulie Connolly Law, PLLC, of Concord (Julie K. Connolly on the brief and

KRAINEWOOD SHORES ASSOCIATION, INC. & a.

No. 2 019 - 0719 Carroll

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

trial court lacks jurisdiction to hear the cl aim is one such defense. Id. relief. Id. An assertion that a claim should be dismissed because the facts, whether the plaintiff s ha ve sufficiently demonstrated their right to claim beyond the plaintiffs’ unsubstantiated allegations and determine, based on the legal claim but, instead, raises certain defenses, the trial court must look when the motion to dismiss does not challenge th e sufficiency of the plaintiffs’ plaintiff s. Atwater v. Town of Plai nfield, 160 N.H. 503, 507 ( p. 2 2010). However, plaintiff s as true and view those facts in the light most favorable to the determination, the court would normally accept all facts pleaded by the Buzzell - Plourde Assoc., 142 N.H. 848, 852 - 53 (1998). In making this sufficiently establish a basis upon which relief may be granted. Provencher v. determine whether the allegati ons contained in the plaintif fs’ pleadings Generally, in ruling upon a motion to dismiss, the trial court must

II. Motion to Dismiss

The plaintiff s unsuccessfully moved to reconsider, and this appe al followed. lacked subject matter jurisdiction to rule on the plaintiffs ’ motion to amend. subject matter jurisdiction over the appeal. The trial court ruled that it also the 30 - day deadline set forth in RSA 677:15, I, divesting the trial court of The trial court found that the plaintiffs did n ot b r ing their action within

p lanning board ’s decision. their complaint, this time seeking a declaratory judgment challenging the the defendants ’ motion to dismiss was pending, the plaintiffs moved to amend I, to file an appeal of a p lanning board ’s decision. RSA 677:15, I ( p. 2 201 6). While argued that the plaintiffs missed the 30 - day deadline imposed by RSA 677:15, to hear the complaint as it was not timely filed. Specificall y, the defendants plaintiffs ’ claims, arguing that the trial court lacked subject matter jurisdiction of the planning board’s decision. The defendants moved to dismiss the On June 8, t he plaintiffs electronically filed in the trial court their appeal

p. 2 2019. motorcycles. The Town’s planning board approved the application on May 8, the purpose of storing large “toys,” such as boats, snowmobiles, and The application proposed the con struction of condo minium storage units for application was submitted on behalf of TYBX3, LLC, to develop a vacant lot. as necessary from other documents in the record. On November 1 4, 2018, a n We draw the following facts from the trial court’s order, supplementing

I. Factual Background

further proceedings consistent with this opinion. denial of the plaintiffs’ motion to amend their complaint, and remand for We affirm the grant of the defendants’ motion to dismiss, vacate the co urt’s p. 3 3

limit of time. should occur shall be included in the computation of the period or day or date shall be excluded from and the day on which an act period or limit of time is to be reckoned from a day or date, that I. Except where specifically stated to the contrary, when a

For its part, RSA 21: p. 3 35 provides:

disapprove the application, in accordance with RSA 21: p. 3 35. th e date upon which the planning board voted to approve or shall be counted in calendar days beginning with the date following approve or disapprove the application. . . . The 30 - day time period within 30 days after the date upon which the board voted to a petition. . .. Such petition shall be presented to the court concerning a plat or subdivision may present t o the superior court Any persons aggrieved by any decision of the p lanning b oard

part: superior court review of a planning board decision. Id. It provides, in relevant the superior court. Id. RSA 677:15, I, provides the jurisdictional deadline for statutory compliance is a necessary prerequisite to establishing jurisdiction in Prop. Portfolio Group v. Town of Derry, 154 N.H. 610, 61 p. 3 3 (2006), because requirements for appeals of planning board decisions to the superior court, New Hampshire law requires strict compliance with statutory time

N.H. 68, 7 p. 4 4 (2016). history. See Attorney General, Dir. of Charitable Trusts v. Loreto Publ’ns, 169 subject to more than on e reasonable interpretation, we will examine legislative # 25, 151 N.H. 612, 614 (2004). However, if the language is ambiguous or intent. Bedford Chapter - Citizens for a So und Economy v. Sch. Admin. Unit unambiguous, we need not look beyond it for further indication of legislative 160 N.H. 681, 685 (2010). If the language of a statute is pl ain and statutory provisions harmoniously. Kierstead v. State Farm Fire & Cas. Co., 82, 86 (2000). Insofar as reasonably possible, we will construe the various and avoid an absurd or unjust result. Appeal of Estate of Van Lunen, 145 N.H. Id. We construe all parts of a statute together to effectuate its overall purpose when possible, we ascribe the plain and ordinary meanings to the words used. p. 3 387, 388 (2008). We first examine the language found in the statute, and, considered as a whole. Grea t Traditions Home Builders v. O ’ Connor, 157 N.H. arbiter of the legislature’ s intent as expressed in the words of the statute statutory interpretation. In matters of statutory interpretation, we are the f inal imposes. To resolve the issues in this appeal requires that we engage in the planning board ’s decision within the 30 - day deadline RSA 677:15, I, On appeal, the plaintiffs first argue that they timely filed their appeal of 4

date is excluded from the computation of the time period. RSA 21:35, I. In RSA 21:35, I, when a time period “is to be reckoned” from a certain date, tha t “[e]xcept where specifically stated to the contrary.” According to the method in RSA 21:35, I, provides a method for counting a time period that applies

the planning board vote is “in agree ment with” RSA 21:35, I. counting the beginning of the 30 - day appeal period on the date after the day of Oxford English Dictionary 83 (2d ed. 1989). RSA 677:15, I, thus provides that accordance with” is “in agreement or harmony with; in conformity to.” The pertinent statutes than the plaintiffs’ interpretation. The plain meaning of “in defendants’ interpretation to be more consistent with the plain meaning of the Although both statutory interpretations are reasonable, w e find the

appeal filed the next day untimely. the planning board voted — and expired on June 7, rendering the plaintiffs’ interpretation, the 30 - day appeal period began to run on May 9 — the day after board made its decision complies with RSA 21:35. Under the defendants’ makes clear that beginning the 30 - day period on the date after the planning is an explanation, rather than a directive. To the defendants, t he phrase The defendants counter that the phrase “in accordance with RSA 21:35”

timely. 21:35, II. Therefore, they reason, their electronically - filed June 8 appeal was was a Saturday, the period actually expired on Monday, June 10. See RSA plaintiffs, the 30 - day period would have expired on June 8, but because June 8 be excluded from the calculation of the 30 - day period. Accordingly, to the began to run on May 9 (the day after the planning board voted), that day must Thus, under the plaintiffs’ interpretation, although t he 30 - day appeal period upon which the 30 - day count begins (the day after the planning board voted). RSA 21:35” constitutes a directive to exclude from the 30 - day count the date must be excluded from the 30 - day count. To the plaintiffs, “in accordance with voted “in accordance with RSA 21:35,” the date after the planning board voted day period begin with the date following that upon which the planning board argue that, to give meaning to both parts of this phrase, requiring that the 30 application, in accordance with RSA 21:35.” RSA 677:15, I. The plaintiffs date upon which the planning board voted to approve or disapprove the period shall be counted in calendar days beginning with the date following the The parties disagree as to the meaning of the phrase “[t]he 30 - day tim e

received by the next business day. holiday, the document or fee shall be deemed timely filed if it is fees and the specified date falls on a Saturday, Sunday, or legal II. If a statute specifies a date for filing documents or paying p. 5 5

the sentence.” Id. a t 494 - 97 (quotation and footnote omitted); see Mt. Valley or clause that can be made an antecedent without impairing the meaning of rev. ed. 2014) (footnote omitted). “The last antecedent is the last word, phrase, J.D. Shambie Singer, Statutes and Statutory Construction § 47.33, at 494 (7th intention appears, refer solely to the last antecedent.” 2A Norman J. Singer & rule, “[r]eferential and qualifying words and phrases, where no contrary antecedent rule” compels their construction of the two statutes. Under the In arguing for a contrary result, the plaintiffs assert that the “last

making the plaintiffs’ June 8 appeal untimely. run on the day after the planning board voted (May 9) and expired on Ju ne 7, Thus, as the defendants argue, the 30 - day appeal period in this case began to have said or add language that the legislature did not see fit to include.”). 170 N.H. 763, 770 (2018) (“We . . . will not consider what the legislature might fit to include. This we may not do. See Appeal o f Algonquin Gas Transmission, requires that we add words to RSA 677:1 p. 5 5, I, which the legislature did not see accordance with RSA 21:35.” R SA 677:15, I. The plaintiffs’ construction which the planning board voted to approve or disapprove the application, in that the 30 - day appeal period “begin[s] with the date following the date upon However, RSA 677:15, I, contains only one directive. It mandates only

omitted.) which excludes the first day of the time period from the count.” (Emphasis voted, and shall be counted ‘in a way that agrees with’ the rule of RSA 21:3 p. 5 5, board voted, . . . but from the date following the date [the] Planning board “[T]he 30 - day appeal period shall be counted not from the date the Planning 21:35.” (Emphasis added.) Or, as the plaintiffs explain in their reply brief, period shall be excluded from the 30 - day count, in accordance with RSA after the date of the vote and further pr ovides that the first day of the time language of RSA 677:15, I provides that the time period shall begin the date 30 - day appeal period set forth in RSA 677:15, I. As they say, “The plain accordance with RSA 21:35” to add an additional step to the calculation of the to be a directive, it would have so stated. The plaintiffs interpret the phrase “in Had the legislature intended the phrase “in accordance with RSA 21:35”

83. is “in agreement with” RSA 21:3 p. 5 5, I. The Oxford English Dictionary, supra at by excluding the day on which the planning board voted (the day of reckoning) computation of the 30 - day appeal period. Computing the 30 - d ay appeal period 21:35, I, RSA 677:15, I, provides that that date is excluded from the determined is the date of the planning board decision. Consistent with RSA Under RSA 677:15, I, the fixed basis by which the appeal period is to be

or base.” The Oxford English Dictionary, supra at 33 p. 5 5. calculate from; to calculate or keep count of, in relation to some starting - point this context, the plain meaning of the word “reckoned” is “[t] o count or p. 6 6

consistent with the above legislative history. not the da te after the vote. Th erefore, our interpretation of RSA p. 6 677:15, I, is Bill 236 intended to exclude only the da te of the vote from the 30 - day count, to appeal a planning board decision. The legislative history shows that House regarding the time in which to ask for rehearing of a zoning board decision or Thus, i n enacting the bill, the legislature sought clarity and uniformity

the day after.” Id. decisions get counted from the day after. Planning board gets counted from appeals, the bill would “bring us, as a state, into the situation where ZBA following its amendment to include language pertaining to planning board Jour. 7 p. 6 65 (2005) (remarks of Senator Burling). According to Senator Burling, counted from the day after that on which the board makes its decision.” N.H.S. boards of adjustment will be taken within 30 days, the 30 day period being Committee). The bill was intended to provide “that all appeals from zoning N.H. H. R. Jour. 1 56 (2005) (re port of House Municipal and County Government

decision motions to the general state rule. period for filing a motion to rehear. This bill conforms zoning of the state excludes the date of a decision from calculation of the the general practices under state law. Specifically, the general rule between the treatment of motions to rehear a zoning decision and T he original purpose of House Bill 23 p. 6 6 was to address the disparity

RSA 21:35 when explaining how to calculate the pertinent time period. 2005, 105:2. Thus, as amended by House Bill 23 p. 6 6, both statutes referenced application, in accordance with RSA 21:35. . ..” N.H.S. Jour. 765; see Laws the date upon which the planning board voted to approve or disapprove the time period shall be counted in calendar days beginning with the date following 105:1. House Bill 236 also added the following to RSA 677:15, I: “T he 30 - day the application in accordance with RSA 21:35.” Id. at 764; see Laws 2005, date following the date upon which the board voted to approve or disapprove “This 30 - day time period shall be counted in calendar days beginning with the analysis). As amended by House Bill 236, RSA 677:2 read, in pertinent pa rt: decision from the calculation of the period.” N.H.S. Jour. 765 (2005) (amended 677:15, I, “to conform to the general rule for the state by excluding the date of under RSA 677:2 (2016) “or to appeal a planning board decision” under RSA the calculation o f the period for filing a motion to rehear a zoning decision” construction. See Loreto Publ’ns, 169 N.H. at 74. House Bill 236 “change [d] The legislative hist ory of RSA 677:15, I, supports our statutory

with RSA 21:35.” As previously discussed, they have not done so. that they have correctly interpreted the meaning of the phrase “in accordance the plaintiffs’ last antecedent rule argument is based upon their assumption Mall Assocs. v. Municipality of Conway, 144 N.H. p. 6 642, 652 (2000). However, p. 7 7

pleading”). Accordingly, in keeping with our policy that favors deciding cases am ong the deficiencies that may be corrected through a supplemental to supplement pleadings, “to include defects in subject matter jurisdiction generally interpret Federal Rule of Civil Procedure 15(d), which allows parties Corp., 809 F.3d 1, 6 (1st Cir. 2015); cf. id. at 5 (observing that federal courts new, rather than an amended, complaint. U.S. ex rel. Gadboi s v. Pharmerica plaintiffs assert the trial court has subject matter jurisdiction, they must file a formality” to require that, in order to plead a new claim over which the N.H. 398, 399 (19 p. 7 76). Therefore, we conclude that “it would be a pointless does not bar a subsequent action. See McAuliffe v. Colonial Imports, Inc., 116 A dismissal for lack of jurisdiction is not a judgment on the mer its and

absent an unsust ainable exercise of discretion. Lamprey, 163 N.H. at 251. The decision of the trial court to deny a motion to amend will not be overturned may be allowed “on such terms as justice may require,” Super. Ct. R. 12(a)(3). entirely new cause of action,” Keshishian, 142 N.H. at 1 p. 7 76, on the other hand, N.H. at 189. Substantive amendments, such as those that “introduce [] an and particularly with this State’s liberal doctrine of amendment.” Barnes, 137 Ct. R. 12(a) (1), (2). “Such a rule is consistent with modern rules of pleading preclusive effect,” ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993); s ee Super. Radiologists, 142 N.H. 168, 175 (1997), “before an adverse judgment has to amend a complaint “to correct technical d efects,” Keshishian v. CMC The general rule in New Hampshire is that plaintiffs must be given leave

N.H. 252, 261 (2012). We agree. allow them to amend their complaint. See Lamprey v. Britton Constr., 163 The plaintiffs argue th at th e court had jurisdiction to decide whether to

alter the dates on which t he complaint was filed or the statutory mandates.” amend.” Moreover, the court observed, there was no amendment “that could complaint] was time - barred,” it had “no jurisdiction to grant a motion to wa s untimely filed. The court explained that, because “the filing [of the original was compelled to deny their motion to amend because the original complaint to add a request for a declaratory judgment. The trial court reasoned that it lacked subject matter jurisdiction over their motion to amend their complaint The plaintiffs next assert that the trial court erred when it ruled that it

III. Motion to Amend

untimely. ruling that the plaintiffs’ appeal of the planning board decision in this case was of RSA 6 p. 7 77:15, I, and RSA 21:35, we hold that the trial court did not err in the ZBA disapproved the application by a vote.”). Based on our interpretation plain language of RSA 677:2, the thirty - day period began to run the day after Bosonetto v. Town of Richmond, 163 N.H. 736, 742 (2012) (“[P] ursuant to the It is also consistent with our pri or interpretation of RSA 677:2. See p. 8 8

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

jurisdictional defect. arguments regarding wh ether the plaintiffs’ amended complaint would cure the discretion in the first instance”). We express no opinion as to the parties’ court has] emphasized the desirability of allowing the [trial] court to exercise “disc retionary amendments under [Federal] Rule [of Civil Procedure] 15(a), [the proceed. See Pharmerica Corp., p. 8 809 F.3d at 6 - 8 (observing that, with regard to to decide, in the first instance, whether the plaintiffs’ amended complaint may the order denying the plaintiffs’ motion to amend and remand for the trial court amend their complaint, a decision committed to its sound discretion, we vacate B ecause the trial court did not decide whether to allow the plaintiffs to

jurisdiction to rule on the plaintiffs’ motion to amend. 17 (1995), we hold t hat the tr ial court erred by deciding that it lacked on their m erits, see I n re Proposed Rules of Civil Procedure, 139 N.H. 512, 515 -