Doty Group, LLC & a. v. Town of Merrimack

• Court: Supreme Court of New Hampshire
• Decided: May 3, 2024
• Docket: 2022-0692
• Status: Unpublished

Opinion

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0692, Doty Group, LLC & a. v. Town of Merrimack, the court on May 3, 2024, issued the following order:

The motion filed by the plaintiffs, Doty Group, LLC, CMI Leasing Corp., and Kalika, LLC, “for declaratory action for lack of subject matter jurisdiction,” is denied. The joint motion filed by the defendant, the Town of Merrimack, and the intervenors, KTK Realty Trust, LLC and Keith Pasquale, Sr., to strike the reply brief is likewise denied. 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 plaintiffs appeal an order of the Superior Court (Colburn, J.) upholding a decision of the town’s planning board to approve a site plan application filed by the intervenors. See RSA 677:15 (2016). Based upon our review of the plaintiffs’ brief and reply brief, the joint memorandum of law filed by the town and intervenors, the relevant law, the record on appeal, and the trial court’s thorough and well-reasoned decision, we find the plaintiffs’ arguments on appeal to be unpersuasive, and we affirm the trial court’s decision. To the extent that the plaintiffs raise issues that the trial court did not address, we conclude that, under the circumstances of this case, such arguments are not preserved. To the extent that the plaintiffs raise new arguments in their reply brief that are not responsive to the arguments in the joint memorandum of law, the arguments are waived. See Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 617-18 (1987).

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas, Clerk