Supreme Court At-a-Glance Contributor Sam Harkinson, Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts.

No. 2019-0719

March 2, 2021

Affirmed in part and, Vacated and Remanded.


  • Whether the rule requiring an appeal to be filed within thirty days includes the day in which the order to be appealed is given, and whether the trial court, after dismissing a case for lack of subject matter jurisdiction could rule on a motion to amend a complaint that had otherwise been dismissed.

The Plaintiffs appealed a decision by the Town of Moulton’s (the “Town”) Planning Board (the “Board”) approving an application to construct a condominium of storage units.  The Board approved the application on Wednesday May 8, 2019.  The Plaintiffs electronically filed their appeal with the Superior Court on Saturday June 8, 2019.  Defendants’ filed a Motion to Dismiss for lack of subject matter, arguing that the appeal was not timely filed.  While the Defendants’ Motion to Dismiss was pending, the Plaintiff’s filed their own Motion to Amend their Complaint, seeking declaratory relief challenging the Board’s decision.  The trial court granted the Defendants’ Motion to Dismiss and denied the Plaintiff’s Motion to Amend.

In affirming the trial court’s decision in granting the Defendant’s Motion to Dismiss, the Court reviewed the applicable statutory language in both NH RSA 677:15 and NH RSA 21:35, finding that the language in both sections did not contradict one another.  While the Court stated that, “…both statutory interpretations are reasonable…” it ultimately concluded that the statutory interpretation offered by the Defendants made the most sense.  The Court, therefore, affirmed the trial court’s granting of the Motion to Dismiss, finding that the Plaintiffs had indeed filed their appeal one day late and were, therefore, time barred.

In vacating and remanding the trial court’s denial of the Plaintiffs’ Motion to Amend, the Court found that, for judicial economy reasons relating to the liberal doctrine on amendment, the trial court should have allowed the Plaintiffs to amend their complaint to add the request for declaratory relief.


Julie Connolly Law, PLLC, Julie Connolly on the brief and orally for the Plaintiffs.  Drummond Woodsum & MacMahon, Matthew R. Serge on the brief and orally for the Town of Moultonborough.  Stephan T. Nix on the joint brief and orally for TYBX3, LLC.