Proulx v. City of Dover Zoning Board of Adjustment

421 A.2d 133, 120 N.H. 674, 1980 N.H. LEXIS 376

• Court: Supreme Court of New Hampshire
• Decided: October 2, 1980
• Docket: No. 79-451
• Status: Published

Opinion

PER CURIAM.

This is an appeal by the City of Dover Zoning Board of Adjustment under RSA 31:77 seeking to set aside the decree of the Strafford County Superior Court, dated December 3, 1979, which granted the plaintiffs request for a variance.

After a trial, which included a view, the Master (Donald F. Whittum, Esq.) found that the zoning board’s denial of the plaintiff’s request for a variance was unjust and unreasonable. He granted the request, and the Superior Court (Mullavey, J.) approved the decree. The city filed a notice of appeal pursuant to Supreme Court Rule 7, but it did not move to set aside the decree below or request findings and rulings. The city briefed issues related to sufficiency of evidence in the case below, but did not file a motion for nonsuit or directed verdict.

Supreme Court Rule 3 provides that an “appeal” constitutes “[a]ppellate review of a party’s exceptions, after a final decision on the merits in a lower court.” In Garland & LaChance Constr. Co. v. City of Keene, 117 N.H. 920, 379 A.2d 1259 (1977), the losing party did not request findings and rulings or file an exception to the master’s report. In that case there was a motion to set aside the verdict which permitted a review of the evidence.

There being no exception before us, the order is

Dismissed.