skip navigationOfficial State of NH Site
space
DOS Logo DOS Banner
space
space

 
Compendium
Superior Court Cases

Untimely Filing Of Appeal/Over 30 Days
 
Gunnerson v. Director, 211-2010-CV-00330, (O'Neill, 10/25/10), AFFIRMED
Petitioner attempted to challenge consecutive ALS refusal by requesting record review hearing after serving 3 year DWI suspension. He acknowledged that he rejected plea deal that would have withdrawn the ALS and had a trial on the charge. Argued that additional suspension was hardship and that his lawyer failed to negotiate a deal that resulted in withdrawal of ALS. Court held Hearings Examiner had no discretion to waive consecutive refusal or not impose it consecutively. Court had no authority to terminate or reduce suspension.
Kazmirchuk v NH DMV , 06-E-51,(SD Hillsborough, Hampsey, 4/24/06) GRANTED
Hearing scheduled for on December 2, 2003 rescheduled and continued twice after at petitioner's request finally to January 14, 2004. No hearing held because no new date ever requested. Petitioner appeared in October 2004 and was advised that by default the suspension remained in full force and effect. Appeal filed February 7, 2006. Court granted Petitionee's Motion to Dismiss without objection.
Wetherbee v. Beecher, 05-E-488, (Merrimack, Fitzgerald, 03/15/06) STATE'S MTD DENIED
An ALS appeal was filed more than thirty (30) days after order, but less than thirty (30) days after Petiton for Director's Review. "The Court interpreted the term 'final order' and explained that the 10-day review statute for Director's Review specifically provided that the hearings examiner's recommendation was not final until the Director acted on the review petition. Therefore the appeal in this case was timely filed".
Soares v. Beecher, 06-E-019, (Merrimack, Fitzgerald, 03/03/06) MTD GRANTED
HO appeal; appeal filed over fifty (50) days late; Petitionee's motion to dismiss; "This Court ruled that subject matter jurisdiction was never conferred on the court and cited to Dermody v Town of Gilford, 137 NH 294 (1993) The appeal in this case was not timely filed".
Dionne v. Beecher , 04-E-139,(Rockingham, Morrill, 04/27/04) AFFIRMED
Appeal filed more than 30 days after order. Motion to dismiss; Granted; without opinion
Sexton v. Beecher, 03-E-69, (SD Hillsborough, Groff, 4/23/03) AFFIRMED
Hearings held on December 3, 1999 and January 25, 2000, respectively; each resulting in consecutive 2 year suspensions. Appeal filed March 6, 2003. Court held: "This Court is without jurisdiction to entertain this appeal … requirement that an appeal be filed within 30 days of the final order. There is no provision in the appeals statute granting this court discretion to waive the statutory time period citing DERMODY.
Wells v. Beecher, 01-#-537, (Rockingham, Hollman, 10/31/01) AFFIRMED
Decision affirmed without opinion
Riddle v. Beecher, 00-E-248, (Rockingham, Coffey, 6/20/00) AFFIRMED
ALS appeal; appeal filed late; appeal petition dismissed; "This Court interprets the term 'final order' to mean the order of the hearings examiner issued following a hearing and NOT, as suggested by Petitioner, the subsequent action taken in accordance with such Order (i.e. license revocation) … The appeal in this case was not timely filed".
Fernald v. Beecher, 98-E-593, (Rockingham, Galway, 1/7/99) AFFIRMED
ALS appeal; final order dated 10/6/98; appeal filed 11/6/98, one day late; appeal petition dismissed; plaintiff alleged that Hearings Examiner's order was date stamped on 10/8/98, thereby giving plaintiff until 11/9/98 to file appeal; "The Court finds this assertion incorrect because the Hearings Examiner's report was clearly dated October 6, 1998. Accordingly, the Court finds the Petitioner filed his appeal one day late. Therefore, because the Petitioner failed to adhere to the statutory deadline, the superior court lacks subject matter jurisdiction", citing Dermody v. Town of Gilford.
Sainato v. Beecher, 98-E-407, (Merrimack, McGuire, 12/18/98) AFFIRMED
ALS appeal; final order dated 9/29/98; appeal filed 10/30/98, one day late; appeal petition dismissed; "The ALS appeal statute, RSA 263:75, is unambiguous in its requirement that an appeal be filed within thirty days of the date of the final order … Petitioner's having failed to file his appeal within the statutorily mandated deadline, this Court has no jurisdiction to hear the appeal", citing Dermody v. Town of Gilford.
Scott v. Beecher, 98-E-438, (Merrimack, McGuire, 12/18/98) AFFIRMED
ALS appeal; final order undated but suspension upheld on 10/14/98, which plaintiff acknowledged in appeal petition; appeal filed 11/17/98, 4 days late; "The Court finds that Petitioner had actual notice of the date of the Hearings Examiner's decision by the appeal deadline … In light of Petitioner's actual knowledge of the date of the Hearings Examiner's decision, the Court finds his due process and fundamental fairness arguments to be unavailing", citing Dermody v. Town of Gilford.
Hollins v. Beecher, 98-E-390, (Merrimack, Brennan, 12/8/98) AFFIRMED
Order on Motion for Reconsideration since Motion for Late Entry of ALS Appeal was granted; court granted Motion for Reconsideration, indicating that "The motion to allow late entry should have been denied by the court. RSA 263:75 requires that the petition to the superior court be filed within 30 days of the final order and in this case it was not, it was at least 3 days late".
Torr v. Beecher, 98-E-125, (Strafford, Coffey, 9/1/98) AFFIRMED
ALS appeal; final order dated 7/1/98; appeal filed 8/3/98, 3 days late; "the court finds that Petitioner's appeal period began to run on July 1, 1998, the date of the Hearing Examiner's final order, not on July 2, 1998, the date the Petitioner received the order. Thus, the Petitionee is correct that the Petitioner filed his appeal three days late. Because the Petitioner failed to adhere to the statutory deadline, the superior court does not have subject matter jurisdiction …", citing Schwartz v. State and Dermody v. Town of Gilford.
Cheever v. Beecher, 97-E-236, (Merrimack, McGuire, 9/3/97) AFFIRMED
ALS appeal; appeal could not be filed because after thirty days; Writ of Certiorari requested; "the officer's failure to fill in the information in the upper right-hand corner of the ALS form in no way prejudiced petitioner's ability to appeal so that use of certiorari is not warranted in this case".
Simons v. Beecher, 96-E-16, (Belknap, Fauver, 3/25/96) AFFIRMED
ALS appeal; final order dated 1/16/96; appeal filed 2/16/96, one day late; appeal petition dismissed, citing Daniel v. B & J Realty.
Thompson v. Turner, E-94-153, (Belknap, Smukler, 12/30/94) REVERSED
ALS appeal; final order dated 10/28/94; appeal filed 11/29/94, one day late; appeal petition not dismissed; court held that "the petitioner attempted to file his petition, but was denied the opportunity because the venue was incorrect. Moreover, the attempt to file in the incorrect venue was at the suggestion of the clerk's office of the correct venue. Incorrect venue is not jurisdictional. Under these highly unusual circumstances, the Court finds that dismissal for a one-day late filing is not warranted".
Drake v. Turner, 94-E-137, (Strafford, Fauver, 10/12/94) AFFIRMED
ALS appeal; final order dated 5/19/94; appeal filed 9/13/94, over 87 days late; appeal petition dismissed, citing Daniel v. B & J Realty.
Fitzgerald v. Turner, 90-E-638, (Rockingham, Gray, 8/16/94) AFFIRMED
Fatal Accident appeal; final order dated 8/28/90; plaintiff filed Motion To Extend Appeal Period on 10/3/90, which was granted; Motion To Dismiss for Lack of Jurisdiction filed in 1994, indicating that jurisdiction can be raised at any time; appeal petition dismissed, citing Dermody v. Town of Gilford and Gettler-Ryan, Inc. v. Kashulines; "plaintiff's motion to extend the time to bring his appeal was not filed until after the statutory appeal period had already expired … jurisdiction over this matter was never established in the superior court".
Vallerand v. Turner, 94-E-93, (ND Hillsborough, O'Neill, J., 6/21/94) AFFIRMED
Red Flag appeal; final order dated 12/2/92; appeal filed 3/8/94, over 431 days late; appeal petition dismissed; "the appeal is inconsistent with the statutory 30-day period".
Bolton v. Turner, 94-E-5, (Rockingham, McHugh, 3/25/94) REVERSED
ALS appeal; final order dated 12/2/93; plaintiff filed appeal with Merrimack County Superior Court but law had changed it from that court to county where person was arrested; by the time appeal was filed in proper court, was three days late; appeal petition not dismissed; court determined that hearing examiner's order had not informed of change in law; "the plaintiff in good faith relied upon the specific provisions of the notice and filed his appeal in accordance therewith".
Lavallee v. Turner, 93-E-549, (Rockingham, McHugh, 2/3/94) REVERSED
Red Flag appeal; final order dated 11/3/93; appeal filed 12/23/93, over 20 days late; appeal petition not dismissed; "while the Court finds that there is merit in the Division of Motor Vehicles' motion to dismiss for the lack of the filing of a timely appeal, the Court chooses not to rule formally on the motion but, rather, to base its decision on the substance of this case". (NOTE: plaintiff was pro se and that had a lot of bearing!)
Jamrog v. Turner, 93-E-503, (Merrimack, Smukler, 11/12/93) AFFIRMED
ALS appeal; final order dated 6/29/93; appeal filed 9/24/93, over 2 months late; appeal petition dismissed without hearing. (NOTE: there was no written opinion in this case!)
Baker v. Turner, 93-E-535, (Merrimack, Lynn, 11/9/93) AFFIRMED
ALS appeal; final order dated 8/30/93; appeal filed 9/30/93, one day late; appeal petition dismissed without hearing, citing Dermody v. Town of Gilford Planning Board.
Steed v. Turner, 93-E-492, (Merrimack, Manias, 11/8/93) AFFIRMED
ALS appeal; final order dated 8/16/93; appeal filed 9/17/93, over 2 days late; appeal petition dismissed; court held that "petitioner's argument that the ‘time/date printed' inscription on the report is insufficient to establish the ‘date of the final order' fails. That date clearly represents the day on which the report was finalized and generated for distribution"; "the appeal statute is unambiguous in its requirement that an appeal be filed within 30 days of the date of the final order and not the date on which notice of the order is received", citing Daniel v. B & J Realty and Dermody v. Town of Gilford Planning Board.
Hill v. Turner, 93-E-389, (Merrimack, Arnold, 9/21/93) AFFIRMED
ALS appeal; final order dated 6/4/93; appeal filed 7/15/93, over 10 days late; appeal had been filed in a timely fashion but was defective and not accepted by court; by the time it was properly filed, was late; appeal petition dismissed, citing Dermody v. Town of Gilford Planning Board.
Dwinal v. Turner, 93-E-307, (Merrimack, Smukler, 8/20/93) AFFIRMED
ALS appeal; final order dated 5/17/93; appeal filed 6/18/93, over 2 days late; appeal petition dismissed without hearing. (NOTE: there was no written opinion in this case!)
Kinevich v. Turner, 93-E-139, (Merrimack, Smukler, 4/30/93) AFFIRMED
HO appeal; final order dated 11/20/91; appeal filed 3/29/93, over one year and 4 months late; appeal petition dismissed; court stated that there was no justification for a 14-month delay and therefore no need to answer issue of whether the court has the jurisdiction to adjudicate a late appeal if justification DID exist.
Bonin v. Turner, E-93-73, (Belknap, Dickson, 4/5/93) AFFIRMED
Implied Consent appeal; final order dated 11/19/92; appeal filed 3/9/93, over 110 days late; appeal petition dismissed without hearing. (NOTE: there was no written opinion in this case!)
Dineen v. Turner, 93-E-32, (Rockingham, Coffey, 3/22/93) AFFIRMED
False Statement appeal; final order dated 12/11/92; appeal filed 1/28/93, over 48 days late; appeal petition dismissed; plaintiff argued that Motion To Reconsider which had been filed tolled the appeal period; court specifically found that a Motion To Reconsider OR a Motion To Reopen does NOT toll the appeal period.
Kus v. Turner, 92-E-519, (Merrimack, McGuire, 2/12/93) AFFIRMED
HO appeal; final order dated 7/27/92; appeal filed 9/9/92, over 44 days later; appeal petition dismissed as untimely. (NOTE: there was no written opinion in this case!)
Morin v. Turner, 92-E-349, (Merrimack, Manias, 9/30/92) AFFIRMED
HO appeal; final order dated 5/18/92; appeal filed 6/18/92, one day late; appeal petition dismissed, citing Daniel v. B & J Realty.
Zahn v. Turner, 92-E-359, (SD., Hillsborough, Perkins, 9/22/92) AFFIRMED
Misabuse of Driving Privilege appeal; final order dated 4/29/92; appeal filed 8/4/92, over 97 days late; plaintiff argued that Motion To Reopen had been filed which tolled the appeal period; appeal petition dismissed; "the Court finds that the Department of Safety Rule Saf-C 202.23 is not a prerequisite to the appeal process available under RSA 263:76. The Court further finds that the filing of petitioner's Motion To Reopen did not toll the thirty (30) day appeal period required by RSA 263:76".
Chesnulevich v. Turner, 92-E-407, (Merrimack, Manias, 8/21/92) AFFIRMED
Implied Consent appeal; final order dated 5/15/92; appeal filed 7/20/92, over 67 days late; appeal petition dismissed. (NOTE: there was no written opinion in this case!)
   
  New Hampshire Department of Safety | 33 Hazen Drive | Concord, NH 03305
TDD Access: Relay NH 1-800-735-2964
space
nh NH.gov | Privacy Policy | Accessibility Policy