Thomas A. Tardif v. Belknap County Convention

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2017-0650, Thomas A. Tardif v. Belknap County
Convention, the court on June 8, 2018, issued the following
order:
Having considered the briefs, memorandum of law, and limited record
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1). We affirm.
The petitioner, Thomas A. Tardif, appeals the order of the Superior Court
(Ignatius, J.) denying his request for injunctive relief against the respondent,
Belknap County Convention, for alleged violations of RSA 91-A:2, II (Supp.
2017) and RSA 24:9-d (Supp. 2017) relating to the adequacy of April 2016
meeting notices. The respondent cross appeals, arguing that the trial court
erred in denying its request for attorney’s fees.
The record shows that the City of Laconia issued a notice of Belknap
County Commission meetings for April 2016. The notice listed four meeting
dates and times, all at the same location. Below the listing, in a section
marked “Other,” the notice stated, “The Board may also be in attendance at the
following meetings,” listing four additional designated dates, times, and places
for additional meetings in April. The meetings on the first two of the four
additional dates, April 4 and April 6, were recessed due to the absence of a
quorum. A quorum was present on the third date, April 8, and at the April 8
meeting, the respondent approved two monetary transfer requests and a
collective bargaining agreement. The petitioner argues that the actions taken
at the April 8 meeting were null and void for lack of proper notice.
RSA 91-A:2, II provides that, with exceptions not relevant here, a public
body’s notice must be posted in two places, “one of which may be the public
body’s Internet website, if such exists, or shall be printed in a newspaper of
general circulation.” RSA 24:9-d provides that notice of a county convention
must be published “at least 7 days before the day of the meeting in a
newspaper of general circulation in the county.”
The petitioner does not argue that notice of the April 4 meeting was
defective. As he concedes, there was a March 23 newspaper notice of the
April 4 meeting. However, he asserts that there were no newspaper notices for
the April 6 and April 8 meeting dates, and that the April 8 meeting could not
have been a recess or continuation of the April 4 meeting because no quorum
was present on April 4 to validly commence the meeting or to recess or
continue the meeting. He also argues that RSA 91-A:2, II does not allow the
respondent to meet its notice requirements by having the City of Laconia give
notice of the respondent’s meetings, and that RSA 24:9-d requires notice by
mail and does not allow for internet notice. Thus, the petitioner argues, the
actions taken on April 8 were null and void for lack of proper notice.
RSA 91-A:8, III (2013) provides that “[t]he court may invalidate an action
of a public body or public agency taken at a meeting held in violation of the
provisions of [RSA chapter 91-A], if the circumstances justify such
invalidation.” (Emphasis added.) We have construed this language to mean
that the decision whether to invalidate action taken at an improperly noticed
meeting is within the trial court’s sound discretion. See Lambert v. Belknap
County Convention, 157 N.H. 375, 381 (2008). To show that the trial court
unsustainably exercised its discretion, the petitioner must demonstrate that
the court’s ruling was clearly untenable or unreasonable to the prejudice of his
case. Foley v. Wheelock, 157 N.H. 329, 332 (2008). We have similarly declined
to invalidate an action of a county convention for improper notice under RSA
24:9-d absent a showing of prejudice. See Cheshire v. Keene, 114 N.H. 56, 59
(1974).
Accordingly, even if we assume, without deciding, that notice of the
April 8 meeting was defective, we will nevertheless affirm the trial court’s order
if the record supports its finding that the petitioner failed to demonstrate
prejudice. See Hull v. Grafton County, 160 N.H. 818, 823 (2010). The trial
court found that the petitioner failed to demonstrate prejudice because he and
the public were informed of the dates, times, and places that the respondent
would meet, and that everyone in attendance at the April 4 meeting was
informed that the meeting was being continued. The court found that the
petitioner, in fact, attended the April 8 meeting during which business was
conducted. The court found that the notice satisfied the goals of transparency
and public access to the workings of government.
It is the burden of the appealing party, here the petitioner, to provide this
court with a record sufficient to decide his issues on appeal. See Bean v. Red
Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see also Sup. Ct. R. 13(2). The
petitioner failed to provide this court with a transcript of the November 16,
2016 evidentiary hearing on his petition. Absent a transcript of the hearing,
we must assume the evidence was sufficient to support the trial court’s
findings. See Atwood v. Owens, 142 N.H. 396, 396 (1997).
The trial court also denied the petitioner’s requests for other forms of
injunctive relief. The decision whether to grant injunctive relief is within the
trial court’s sound discretion. Foley v. Wheelock, 157 N.H. at 332. The court
found that injunctive relief was not warranted because the respondent made
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“no attempt to conduct business outside the presence of the petitioner or the
public at large or to conduct business at a place or time that the public could
not easily locate.” We assume the evidence was sufficient to support the trial
court’s findings and discern no legal error. See Atwood v. Owens, 142 N.H. at
396. We cannot conclude that the court unsustainably exercised its discretion
in denying the request for equitable relief. See Foley v. Wheelock, 157 N.H. at
332.
In its cross-appeal, the respondent argues that the trial court erred in
denying its request for attorney’s fees under the standards set forth in RSA 91-
A:8, II (2013), Harkeem, and Superior Court Rule 11(d). The petitioner
counters that this issue is not preserved because the respondent failed to file a
motion for reconsideration in the trial court. To the extent that the respondent
argues that the trial court applied an incorrect standard in its order denying
the respondent’s request for attorney’s fees, we agree that the issue is not
preserved. See Super. Ct. Civ. R. 12(e); N.H. Dep’t of Corrections v. Butland,
147 N.H. 676, 679 (2002). However, to the extent that the respondent argues
that the court erred in concluding that an award of attorney’s fees is not
warranted under the applicable standards, we conclude that no motion for
reconsideration was necessary and that the issue is preserved.
Pursuant to RSA 91-A:8, II, “[t]he court may award attorney’s fees to a
public body . . . for having to defend against a lawsuit under the provisions of
[RSA chapter 91-A], when the court finds that the lawsuit is in bad faith,
frivolous, unjust, vexatious, wanton, or oppressive.” The Harkeem standard is
substantially similar. See Harkeem v. Adams, 117 N.H. 687, 691 (1977).
Pursuant to Superior Court Rule 11(d), the court may award attorney’s fees
against any party whose frivolous or unreasonable conduct makes necessary
the filing of, or hearing on, any motion.
The trial court found the petitioner to be “exacting, persistent and, at
times, ‘nit-picking,’” but concluded that his claims in this case were not
frivolous or brought for the purpose of harassment. We will defer to the trial
court’s findings regarding attorney’s fees unless they are unsupported by the
evidence or erroneous as a matter of law. N.H. Right to Life v. Dir., N.H.
Charitable Trusts Unit, 169 N.H. 95, 126 (2016).
The respondent asserts that an award of attorney’s fees is warranted
because the petitioner’s claims are frivolous. We disagree. The respondent’s
method of giving notice — publishing a single electronic notice listing multiple
dates and times during which it “may also be in attendance,” together with a
single newspaper notice listing only the first of such meeting dates — differs
from notice methods we have previously considered. The record supports the
trial court’s finding that the petitioner’s challenges to the adequacy of the
notice were reasonable. The fact that the petitioner has filed a number of
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allegedly frivolous lawsuits against various municipal entities over the past
twenty years does not compel a different conclusion. See id.Affirmed.
Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Eileen Fox,
Clerk
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