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Town of Londonderry v. Mesiti Development, Inc.

Supreme Court of New Hampshire

December 4, 2015

Town of Londonderry
Mesiti Development, Inc. & a

Argued May 7, 2015.


Ramsdell Law Firm, P.L.L.C., of Concord ( Michael D. Ramsdell and Patrice M. Scott on the brief, and Mr. Ramsdell orally), for the petitioner.

Baroff Professional Association, of Bedford ( Patricia M. Panciocco on the brief and orally), for the respondents.

HICKS, J. CONBOY, J., and VAUGHAN, J., retired superior court justice, specially assigned under RSA 490:3, concurred.


Page 1013


The respondents, Mesiti Development, Inc., JVL Construction Company, Inc., and Brook Hollow Corporation, appeal an order

Page 1014

of the Superior Court ( Wageling, J.) dismissing their counterclaims against the petitioner, Town of Londonderry (Town). We affirm and remand.

The following facts are derived from the trial court's order or appear in the record. On July 13, 2012, the Town filed a bill of interpleader in superior court to determine whether $264,517.02 in surplus impact fees collected under the Town's impact fee ordinance should be refunded to the developers who paid the impact fees or to the current owners of the properties for which the fees had been paid. Although the Town's impact fee ordinance specifies that the current owners are entitled to the refunds, the Town sought to confirm that the ordinance is consistent with the impact fee statute. See RSA 674:21, V (Supp. 2014).

The bill listed seventeen properties and their respective impact fee payors and current owners. Additional parties intervened thereafter. Several parties, including the respondents, moved to add counterclaims alleging, among other things: (1) violations of RSA 674:21, V; (2) negligence; (3) violation of fiduciary duties owed to impact fee payors; (4) violation of the public trust in government; and (5) violation of the municipal budget law, see RSA 32:8 (2000). The Town filed a motion to dismiss these counterclaims, which the trial court granted. This appeal followed.

We note that, although the respondents filed this appeal under Supreme Court Rule 7, it is unclear whether the trial court's order resolved all of the pending claims to impact fee refunds. See S.Ct. R. 7. To the extent this is an interlocutory appeal, we waive the requirements of Rule 8 and will treat this appeal as such. See S.Ct. R. 1, 8.

In reviewing the trial court's grant of a motion to dismiss counterclaims, our standard of review is whether the allegations in the counterclaimants' pleadings are reasonably susceptible of a construction that would permit recovery. See In re Estate of Mills, 167 N.H. 125, 127, 105 A.3d 1057 (2014). Although we assume the truth of the facts alleged in the counterclaimants' pleadings and construe all reasonable inferences in the light most favorable to them, we will uphold the granting of the motion to dismiss if the facts pleaded do not constitute a basis for legal relief. See Estate of Ireland v. Worcester Ins. Co., 149 N.H. 656, 658, 826 A.2d 577 (2003).

The respondents contend that the trial court erred in dismissing their negligence claim even though the Town violated the standard of care and duties imposed by RSA 674:21, V by: (1) breaching its fiduciary duties in administering the impact fee ordinance; and (2) failing to " insure its impact fee assessments ... have a rational nexus, are proportional and specially benefit new development." They also argue that the trial court erred by: (1) ruling that " the Town's confirmed maladministration and malfeasance was not the harm the Legislature intended to protect against and the Respondents were not members of the class RSA 674:21[, V] intended to protect" ; and (2) failing to acknowledge that the Town withdrew an earlier representation that it would refund fees assessed for state roads.

The Town argues that this appeal should be dismissed because, among other things, none of the questions presented in the respondents' brief -- with the possible exception of the fourth question -- coincides with any of the twelve questions raised in their notice of appeal, and the fourth question, even if arguably raised in the notice of appeal, was not briefed. " An argument that is not raised in a party's notice of appeal is not preserved for appellate

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review." State v. Blackmer, 149 N.H. 47, 49, 816 A.2d 1014 (2003). Thus, ordinarily, " we will not review any issue addressed in [an appellant's] brief that [the appellant] did not also raise in his notice of appeal." Id. We also deem waived issues that are raised in the notice of appeal but are not briefed. State v. Berry, 148 N.H. 88, 93, 803 ...

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