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Rule 46 – Appeals and Transfers to Supreme Court

May 14, 2021 | Civil Procedure, New Hampshire

(a)Interlocutory Appeals. Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, counsel shall seasonably prepare and file with the trial court the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 or Supreme Court Rule 9, and after the court has signed the statement, counsel shall mail the number of copies provided for by the rules of the Supreme Court to the clerk thereof.
(b)Denial of Motion to Dismiss Challenging Personal Jurisdiction, Process and/or Service of Process. When, pursuant to Rule 9(e), a party files a timely Motion to Dismiss challenging the court’s personal jurisdiction, sufficiency of process and/or sufficiency of service of process and the motion is denied, the order denying the motion may be appealed pursuant to Supreme Court Rule 7. See Rule 9(e) (a party will be deemed to have waived a challenge to personal jurisdiction, sufficiency of process and/or sufficiency of service if the party does not seek review by the supreme court of the denial of the Motion to Dismiss within 30 days; the supreme court’s declining to accept the appeal will not preclude the party from challenging the trial court’s ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court).
(c)Judgment on Multiple Claims or Involving Multiple Parties.

(1) When, in a civil action that presents more than one claim for relief – whether as a claim, counterclaim, cross-claim, or third party claim – or where multiple parties are involved, the court enters an order that finally resolves the case as to one or more, but fewer than all, claims or parties, the court may direct that its order, or a portion of its order, be treated as a final decision on the merits as to those claims or parties if the court:

(A) explicitly refers to this rule;
(B) identifies the specific order or part thereof that is to be treated as a final decision on the merits;
(C) articulates the reasons and factors warranting such treatment; and
(D) finds that there is an absence of any just reason for delay as to the party or claim that is to be severed from the remainder of the case.

An order bifurcating or otherwise severing a civil action shall not, by itself, result in any order being treated as an appealable final decision on the merits unless all of the requirements of Rule 46(c)(1) are met.

(2)Procedure on Appeal.

(A) Any appeal from such an order shall be considered a mandatory appeal for purposes of Supreme Court Rule 7 if a final decision on the merits of the entire case would be a mandatory appeal, and shall be filed in accordance with Supreme Court Rules.
(B) Prior to accepting an appeal from an order that the Superior Court directed be treated as a final decision on the merits pursuant to Rule 46(c)(1), the Supreme Court may review the trial court’s reasons and factors warranting treating the order as a final decision on the merits. If the Supreme Court determines, after notice to the parties and an opportunity for the filing of brief memoranda, that the Superior Court clearly erred by directing that the order be treated as a final decision on the merits, the Supreme Court shall vacate the portion of the order directing that it be treated as a final decision on the merits, and otherwise dismiss the appeal without prejudice.
(d)Final Judgment. In all actions in which a verdict or decree is entered, or in which a motion for a nonsuit or directed verdict is granted, or in which any motion is acted upon after verdict or decree, all appeals relating to the action shall be deemed waived and final judgment shall be entered as follows, unless the court has otherwise ordered, or unless a Notice of Appeal has then been filed with the Supreme Court pursuant to its Rule 7:

(1) Where no motion, or an untimely filed motion, has been filed after verdict or decree, on the 31st day from the date on the court’s written notice that the court has made the aforementioned entry, grant or dismissal; or
(2) Where a timely filed motion has been filed after verdict or decree, on the 31st day from the date on the court’s written notice that the court has taken action on the motion.
(e) The court shall not grant any requests for extensions of time to file an appeal document in the Supreme Court or requests for late entry of an appeal document in the Supreme Court; such requests shall be filed with the Supreme Court. See Supreme Court Rule 21(6).
(f) In civil actions in which a mistrial is declared, appeals from the denial of motions for nonsuit or directed verdict shall not be transferred to the Supreme Court before verdict following further trial unless the court shall approve an interlocutory appeal pursuant to Supreme Court Rule 8.
(g) The procedure for preparation of a transcript for cases appealed or transferred to the Supreme Court is governed by Supreme Court Rule 15.

N.H. R. Super. Ct. 46

Amended Oct. 17, 2016, eff. Jan. 1, 2017.

Comment

Rule 46(b), consistent with Rule 9(e) and Mosier v. Kinley, 142 N.H. 415, 423-24 (1997), provides that an order denying a timely-filed Motion to Dismiss challenging personal jurisdiction, sufficiency of process and/or sufficiency of service shall be appealable under Supreme Court Rule 7 without the need for the Superior Court to take the actions set forth in Rule 46(c)(1).

Rule 46(c)(1) alters the rule announced in Germain v. Germain, 137 N.H. 83, 85 (1993), that “when a trial court issues an order that does not conclude the proceedings before it, for example, by deciding some but not all issues in the proceedings or by entering judgment with respect to some but not all parties to the action, we consider any appeal from such an order to be interlocutory.” Rule 46(c)(1) authorizes the Superior Court to designate certain orders that do not conclude the proceedings before it as final decisions on the merits that can be immediately appealed to the Supreme Court. In Germain, the Supreme Court indicated that under some circumstances, an order bifurcating a case might suffice to convert otherwise interlocutory orders into final decisions on the merits. Rule 46(c)(1), however, explicitly provides that a bifurcation order alone will no longer suffice; rather, the Superior Court must comply with the requirements of Rule 46(c)(1)(A) through (D) if the court intends for an order that finally resolves the case as to one or more, but fewer than all, claims or parties to be treated as a final decision on the merits as to those claims or parties.

Rule 46(c)(2) provides that, prior to accepting the appeal, the Supreme Court may review the Superior Court’s findings under Rule 46(c)(1)(C) and (D). If, after providing the parties with the opportunity to file brief memoranda, the Supreme Court concludes that the Superior Court clearly erred in its conclusion that the order should be treated as a final decision on the merits, the Supreme Court shall vacate that part of the order and otherwise dismiss the appeal. The dismissal of the appeal is without prejudice to any party’s ability to file an appeal after the entire action is concluded in the Superior Court.