Doc. No. 2012-0437, N.H. Supreme Court
Unpublished
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2012-0437, Harriet E. Cady v. Town of Deerfield, the court on December 6, 2012, issued the following order:
Having considered the briefs and record submitted on appeal, we conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm in part, vacate in part, and remand.
The petitioner, Harriet E. Cady, appeals an order of the superior court ruling in favor of the respondent, the Town of Deerfield (town), upon her petition for contempt of an earlier order and settlement agreement relative to alleged violations of RSA chapter 91-A, and awarding costs and attorney's fees to the town. We construe the petitioner's brief to argue that the trial court erred by: (1) not ruling that the town violated RSA 91-A:2, II (Supp. 2012) on December 29, 2011 by conducting a "secret" meeting in a nonpublic place that had not been properly noticed; (2) not ruling that the town violated RSA 91-A:3 (Supp. 2012) by going into a nonpublic session on December 19, 2011; (3) not crediting testimony the petitioner offered, but crediting evidence offered by the town; and (4) awarding costs and attorney's fees to the town.
While we review the trial court's interpretation of RSA chapter 91-A de novo, we defer to the trial court's findings of fact unless they are unsupported by the evidence or erroneous as a matter of law. Prof'l Firefighters of N.H. v. Local Gov't Ctr., 159 N.H. 699, 703, 710 (2010). In examining the trial court's findings of fact, we are mindful that resolving conflicts in the testimony, measuring the credibility of the witnesses, and determining the weight of the evidence submitted at trial are matters for the trial court to resolve. Cook v. Sullivan, 149 N.H. 774, 780 (2003). As the finder of fact, the trial court was free to accept or reject, in whole or in part, whatever testimony or other evidence was offered, and was not required to believe even uncontroverted evidence. In the Matter of Henry & Henry, 163 N.H. 175, 181 (2012).
In this case, the trial court found that the petitioner had offered no credible evidence to support her contempt petition. Indeed, in denying the petitioner's motion for reconsideration, the trial court noted that she had expressly declined to testify, and that it had found the town's witnesses credible and the petitioner's witness either not credible or not on point. Upon the evidence presented at trial, the trial court's findings that the December 29, 2011 meeting was properly noticed and that no "secret" meeting transpired were neither unsupported by the evidence nor erroneous as a matter of law, [2] Prof'l Firefighters of N.H., 159 N.H. at 710, and we necessarily reject the petitioner's contentions that the trial court was compelled to resolve the conflicting testimony in her favor, Henry, 163 N.H. at 181.
Nor did the trial court err by ruling that the town was allowed to go into nonpublic session to discuss recommendations for resolving cases before the Board of Tax and Land Appeals, as such discussions involved "[c]onsideration or negotiation of pending claims or litigation which ha[d] been . . . filed against the" town. RSA 91-A:3, II(e). As a matter of law, recommendations concerning the resolution of claims pending before the Board of Tax and Land Appeals unambiguously constitute the "[c]onsideration or negotiation of pending claims or litigation," and not an "application . . . for tax abatement." Id.; see Prof'l Firefighters of N.H., 159 N.H. at 703.
Finally, we address the petitioner's argument that the trial court erred by awarding the town costs and attorney's fees. To the extent the petitioner argues that the trial court erred by finding that her suit was frivolous, and by awarding attorney's fees on that basis, see RSA 91-A:8, I-a (Supp. 2012), we cannot say, upon this record, that the trial court's finding that the suit was frivolous and in bad faith was either unsupported by the evidence or erroneous as a matter of law, Prof'l Firefighters of N.H., 159 N.H. at 710, or an unsustainable exercise of its discretion, Bosonetto v. Town of Richmond, 163 N.H. 736, 746 (2012).
To the extent, however, that the trial court also awarded, pursuant to Superior Court Rule 59, the "reasonable reimbursement of salary or other wages required to have town officials attend court to defend this matter," we conclude that it erred. "As a general rule, costs are allowable only when authorized by statute or court rule." Grenier v. Barclay Square Commercial Condo. Assoc., 150 N.H. 111, 118-19 (2003) (quotation omitted). While Rule 59 authorizes an award of "reasonable costs . . . against any party whose frivolous . . . conduct makes necessary the . . . hearing on any motion," it does not define what "costs" the trial court may award. We have consistently held, however, that where a specific provision of law authorizes an award of costs without defining the costs that may be awarded, the general provision defining "allowable costs" governs the scope of the costs that the trial court may award. See generally Appeal of The Ribblesdale, Inc., 128 N.H. 370, 373-74 (1986).
Since the repeal of RSA chapter 525, we have looked to Superior Court Rule 87 to define the scope of allowable costs. See Flanagan v. Prudhomme, 138 N.H. 561, 577 (1994). Nothing in Rule 87 authorizes the award of "reimbursement of salary or other wages" for the witnesses employed by a municipal party. While "allowable costs" under Rule 87 include "witness fees," Super. Ct. R. 87(c), "witness fees" are limited by RSA 516:16 (2007) to "$12 for each half day's attendance before a . . . superior . . . court," plus "mileage . . . [3] at the rate of $.17 per mile" in the event "the witness is required to leave the town or city in which he resides to testify." Accordingly, we vacate that portion of the trial court's order awarding the town the "reasonable reimbursement of salary or other wages" of its employees who testified, and remand for further proceedings consistent with this order.
We have reviewed the petitioner's remaining arguments and conclude that they warrant no extended consideration, see Vogel v. Vogel, 137 N.H. 321, 322 (1993), or are not otherwise sufficiently developed to warrant judicial review, State v. Blackmer, 149 N.H. 47, 49 (2003).
Affirmed in part; vacated in part; remanded.
Dalianis, C.J., and Hicks, Conboy, Lynn and Bassett, JJ., concurred.