THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0362, Lauren C. Shearer v. Town of

Richmond, the court on October 24, 2023, issued the following

order:

The court has reviewed the written arguments and the record submitted

on appeal, and has determined to resolve the case by way of this order. See

Sup. Ct. R. 20(2). The motion filed by the plaintiff, Lauren C. Shearer, to strike

the brief filed by the defendant, the Town of Richmond (Town), is denied. The

plaintiff appeals an order of the Superior Court (Leonard, J.) granting the Town’s

summary judgment motion on his complaint seeking the layout of a class V

highway, see RSA 231:38 (2009), and denying his cross-motion for summary

judgment. We reverse the grant of summary judgment to the Town and remand.

The following facts are undisputed. On June 7, 2021, the plaintiff filed a

petition with the Town to lay out a class V highway. The Town scheduled a

public hearing for November 17 and, in October, sent the plaintiff notice of the

hearing. On November 5, the plaintiff filed the instant action in superior court,

alleging that, under RSA 231:38, the Town had neglected to lay out the class V

highway and petitioning the superior court to have the road laid out. 

On November 15, the plaintiff emailed the Town, informing it that he

would not be present at the November 17 hearing because the Town notified him

of the public hearing only 29 days prior to the hearing, rather than 30 days as

required by statute. See RSA 231:9 (2009). The Town thereafter cancelled the

November 17 hearing, and provided notice on December 13, 2021 that it would

hold the hearing on January 26, 2022. Following that hearing, the Board of

Selectmen (Board) issued a written decision on March 3, 2022, denying the

plaintiff’s petition.

Meanwhile, on January 11, 2022, the Town filed a motion for summary

judgment in the superior court case that the plaintiff filed in November 2021. 

On February 10, 2022, the plaintiff filed a cross-motion for summary judgment. 

On March 8, 2022, following the Town’s denial of the plaintiff’s June 7, 2021

petition, the Town filed a supplemental affidavit containing the Board’s decision. 

In addition, the Town filed an objection to the plaintiff’s cross-motion in which it

asserted that “[t]o the extent Plaintiff seeks affirmative relief of a finding of

‘neglect’ or ‘refusal,’ [the Town] objects . . . . Moreover, Plaintiff has failed to

demonstrate a material factual dispute on the issue of neglect or refusal.”

By order dated May 2, 2022, the trial court granted the Town’s motion for

summary judgment and denied the plaintiff’s cross-motion. In its recitation of
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the facts, the court noted that the Town had rescheduled the hearing on the

plaintiff’s petition to lay out the road for January 26, 2022, but the court did not

note that the Board had issued a decision in March 2022 denying that petition. 

The court then undertook a detailed analysis as to whether the Town neglected

the plaintiff’s petition, ruling that the Town did not do so. In the final paragraph

of its analysis, the court stated: “In conclusion, the Court finds as a matter of

law the Town did not neglect or refuse [the plaintiff’s] petition. Therefore,

because RSA 231:38, I only gives the Superior Court the power to determine

whether occasion exists if the Town refused or neglected a petition, the Court

does not have the power to hear [the plaintiff’s] petition.” (Emphasis added.)

The plaintiff filed a motion to reconsider, arguing that the trial court had

overlooked the March 2022 decision of the Board denying his June 7, 2021

petition to lay out the road. The plaintiff contended: “Given that the Town was

petitioned to layout a road, and after the Town’s process, per the Return, no

road was laid out, the Town has formally refused to lay out the road.” Therefore,

the plaintiff concluded, the court had “authority to consider the Petition relief

sought by Plaintiff under RSA 231:38, I, via the Town’s refusal to lay out the

road.” (Footnote omitted.) The trial court denied the motion, stating: “The Court

did not overlook or misapprehend any points of law or facts.” This appeal

followed.

In reviewing the trial court’s rulings on cross-motions for summary

judgment, we consider the evidence in the light most favorable to each party in

its capacity as the nonmoving party and, if no genuine issue of material fact

exists, we determine whether the moving party is entitled to judgment as a

matter of law. Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 758 (2014). 

If our review of that evidence discloses no genuine issue of material fact and if

the moving party is entitled to judgment as a matter of law, then we will affirm

the grant of summary judgment. Id. We review the trial court’s statutory

interpretation and its application of the law to the facts de novo. See id.

The plaintiff argues that the trial court erred when it concluded it lacked

jurisdiction under RSA 231:38. The statute provides:

Petitions for laying out or altering class IV, V or VI highways may be

filed in the office of the clerk of the superior court in the following

cases:

I. When selectmen have neglected or refused to lay out or alter

the highway;

II. When having been laid out by the selectmen, it is

discontinued by the town within 2 years thereafter.

RSA 231:38 (emphasis added). On appeal, the plaintiff asserts that the trial
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court had jurisdiction on the grounds that the Town both neglected and refused

“to lay out . . . the highway.” RSA 231:38, I.

We begin by assessing the plaintiff’s argument that the trial court had

jurisdiction because the Town refused to lay out the highway. The plaintiff

argues that the Board’s decision to deny his petition on March 3, 2022

constitutes a “refusal” within the meaning of RSA 231:38, I. The Town counters

that the plaintiff failed to preserve this argument, the Board’s decision to deny

his petition does not constitute a “refusal” to lay out the road, and the plaintiff’s

argument is foreclosed by the time limit contained in RSA 231:34. 

We are not persuaded by the Town’s assertion that the plaintiff’s refusal

argument is unpreserved. The Town correctly observes that the plaintiff alleged

in his complaint only that the Town neglected to lay out the highway, not that

the Town refused to do so. The plaintiff alleged for the first time in his motion

for reconsideration that the Town refused to lay out the road. However, the

basis for the plaintiff’s argument that the Town refused to lay out the road was

the denial by the Town of his petition in March 2022 — obviously, the plaintiff

could not have made this claim in his complaint, which was filed in November

2021. Furthermore, prior to the trial court’s decision, the Town itself filed a

supplemental affidavit averring that the Board denied the plaintiff’s petition in

March 2022 and addressed the issue of refusal in its objection to the plaintiff’s

cross-motion, contending that there was no material factual dispute on the issue

of refusal and that the Town was entitled to summary judgment on that issue. 

Finally, although the trial court did not set forth its analysis on the issue, it

ruled that, as a matter of law, the Town did not refuse the plaintiff’s petition.

Although we recognize our long-standing rule that parties may not have

judicial review of matters not raised at the earliest possible time, the rationale

behind the rule is that trial forums should have an opportunity to rule on issues

and to correct errors before they are presented to the appellate court. State v.

Tselios, 134 N.H. 405, 407 (1991). Here, the trial court had an opportunity to

consider and rule on the issue of “refusal”: the Town raised the issue in its

pleadings and filed an affidavit informing the trial court of the Board’s vote

denying the petition; the court ruled that the Town did not refuse the plaintiff’s

petition; the plaintiff raised the issue of refusal in his motion for reconsideration;

and the court denied the motion, stating that it had not overlooked or

misapprehended any points of law or facts. 

The Town argues that the plaintiff was required to move to amend his

complaint “to add a new substantive claim” of refusal after the Board’s denial of

his petition. It asserts that, by raising refusal in his motion for reconsideration,

the plaintiff improperly attempted to “add new claims, advance new arguments

or add new evidence.” We disagree. In the plaintiff’s motion for reconsideration,

he neither raised a new issue that had not been considered by the trial court nor

inserted new facts not previously before the trial court. Rather, the plaintiff
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argued that the court had overlooked the affidavit filed by the Town that

contained the Board’s denial of his petition, noting that the court had not

mentioned it in its order.1 To find the argument unpreserved simply because

the plaintiff did not formally amend his complaint after the Board’s denial would

undermine the fundamental principle that, in New Hampshire, a party should

not lose a case on a “procedural technicality.” In re Proposed Rules of Civil

Procedure, 139 N.H. 512, 515 (1995) (quotation omitted). Indeed, the issue

having been addressed by the Town in its pleadings without objection, raised by

the plaintiff in his motion for reconsideration, and decided by the court in its

orders, the plaintiff’s complaint may be considered to have been constructively

amended to include it. See Miller v. Slania Enters., 150 N.H. 655, 659 (2004);

see also State v. Homo, 132 N.H. 514, 516 (1989). We fail to see any unfair

prejudice to the Town resulting from the constructive amendment. See In the

Matter of Greenberg & Greenberg, 174 N.H. 168, 175-76 (2021). 

We now turn to the question of whether the Board’s denial of the plaintiff’s

petition constituted a refusal sufficient to vest the superior court with

jurisdiction under RSA 231:38, I. Resolving this issue requires statutory

interpretation. We first examine the statutory language, and where possible, we

ascribe the plain and ordinary meanings to the words used. Bovaird, 166 N.H.

at 758.

RSA 231:38, I, authorizes the filing in superior court of a petition to lay

out a class IV, V, or VI highway “[w]hen selectmen have neglected or refused to

lay out or alter the highway.” The plain meaning of “refuse” is to “indicate or

show that one is not willing to do something,” to “indicate that one is not willing

to accept or grant (something offered or requested).” New Oxford American

Dictionary 1468 (3d ed. 2010); see Webster’s Third New International Dictionary

1910 (unabridged ed. 2002) (“to show or express a positive unwillingness to do

or comply with,” “DENY”). Here, the plaintiff petitioned the Board to lay out a

class V highway. The Board showed its unwillingness to comply with the

plaintiff’s request to lay out the class V highway by denying his petition. Thus,

ascribing the plain and ordinary meaning to the word, we conclude that the

Board “refused” to lay out the highway. 

We have previously characterized a municipality’s denial of a petition to

lay out a road as a refusal under RSA 231:38, I. For example, in Crowley v.

1 Significantly, the trial court did not deny the plaintiff’s motion to reconsider on the grounds

asserted here by the Town — that is, the trial court did not rule that the plaintiff was improperly

attempting to “add new claims, advance new arguments or add new evidence.” Nor did the court

rule, as the Town argued in its objection to the plaintiff’s motion to reconsider, that the plaintiff

was “through sleight of hand,” asserting for the first time an appeal under RSA 231:34 rather

than making the legal argument that the Town had “refused” to lay out the road within the

meaning of RSA 231:38, I. The trial court concluded that the plaintiff failed to demonstrate that

the court had overlooked or misapprehended any points of law or facts. Thus, it is clear that the

trial court rejected the plaintiff’s “refusal” argument on the merits. 
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Town of Loudon, 162 N.H. 768, 770-71 (2011), the plaintiffs petitioned the town

to accept Green View Drive as a town road. We explained that after the town

denied the petition, the plaintiffs then “petitioned the superior court to lay out

Green View Drive as a public road. See RSA 231:38, I.” Crowley, 162 N.H. at

771. We further explained that upon petition, a town will lay out roads when

there is an “occasion” to do so. Id. at 773. Assessing “occasion” requires the

selectboard to balance the public need for the road against the burden the road

will impose on the town. Id. We then stated, again citing RSA 231:38, I, that

“[i]f a town refuses to lay out a road, the trial court may be petitioned to do so.” 

Id. (emphasis added); see also Graves v. Town of Hampton, No. 2017-0451 (nonprecedential order at 3), 2018 WL 3237957 (N.H. June 21, 2018) (after

selectboard denied petition to lay out a class V highway, plaintiffs appealed to

superior court for de novo review; supreme court’s analysis explains that a

plaintiff may petition superior court when town “refuses to lay out a road,” citing

RSA 231:38). We see no reason why the instant case should be treated

differently. 

Finally, we briefly address the Town’s argument that, because the Board’s

denial of the petition was not a “refusal” under RSA 231:38, I, the “proper

avenue of redress was an appeal under RSA 231:34” and that the plaintiff failed

to file an appeal to the superior court within the 60-day time limit required by

that statute. We disagree with the premise of the Town’s argument. As

explained above, the Board’s denial of the petition constituted a “refusal” under

RSA 231:38, I, and, therefore, the plaintiff was not required to seek redress

pursuant to RSA 231:34. 

Because we conclude that the Board’s vote to deny the plaintiff’s petition

constituted a refusal to lay out the road under RSA 231:38, I, we need not reach

the parties’ arguments concerning “neglect” of the petition, and therefore we do

not disturb the trial court’s denial of the plaintiff’s cross-motion for summary

judgment. Accordingly, we conclude that the trial court erred when it granted

the Town’s motion for summary judgment. We reverse the grant of summary

judgment and remand.

Reversed in part and

remanded.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and

DONOVAN, JJ., concurred.

Timothy A. Gudas,

 Clerk