Opinion
No. 79-451
Decided October 2, 1980
Appeal and Error — Preservation of Questions — Failure To Present Below Appeal by city zoning board of adjustment seeking to set aside superior court decree which granted party's request for a variance was dismissed where city had not moved to set aside decree below, or requested findings and rulings, or, while briefing issues related to sufficiency of evidence, moved for nonsuit or directed verdict, or filed exceptions to the superior court's decree.
McLane, Graf, Raulerson Middleton P.A., of Manchester, by brief for the plaintiff.
Scott E. Woodman, city attorney, by brief for the defendants.
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 plaintiff's 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.