By BEA LEWIS, for THE LACONIA DAILY SUN
MEREDITH — The late ABC radio personality Paul Harvey, known for his "The Rest of the Story" segments. has a convert in a Carroll County judge.
Judge Amy Ignatius, who is weighing whether to at least temporarily halt a local crematorium from operating has said she will delay her decision until the funeral director has the chance to respond to allegations from an abutter.
On Oct. 17, Queen City lawyer Marc van Zanten and his clients Peter and Kelley Mayhew failed to show up at a hearing at Carroll County Superior Court. They were scheduled to present evidence as to why the court should reject claims by their neighbors Doug and Leslyee Frederick that their crematorium is a public nuisance. The Fredericks assert that the crematorium at the junction of Route 3 and Cataldo Road in Meredith, produces a sickening smell and emits an ash-like particulate that falls on their property.
After the Fredricks, their legal team and 17 witnesses, many of whom traveled from out of state to attend, the judge allowed testimony to proceed despite the absence of the Mayhews and their attorney.
On Oct. 19, Ignatius issued a written order detailing that the plaintiff's counsel had received notice of the hearing but that as a result of "internal miscommunication" at his law firm, it was not placed on his calendar.
The court decided to allow the plaintiffs to obtain copies of the photographs and video recordings that were submitted as evidence during the hearing as well as a recording of the testimony. Attorney van Zanten was also given leave to file written arguments and/or a sworn affidavit or response. All filings must be submitted by Nov. 2.
Last May, the Mayhews, who own and operate Mayhew Funeral Home Inc., sought a court order temporarily restraining the Fredericks from making unsubstantiated claims regarding their crematorium and the impact it has on abutting property.
While the court denied the Mayhews' request to silence the Fredricks who formerly operated the American Police Motorcycle Museum out of a building next door to the funeral home, an underlying suit that claims the Fredrick's continued public complaints have defamed the Mayhews, remains ongoing.
The Fredericks in turn counter sued, asking a judge to find that the crematorium is a nuisance and as such should be shut down, or at least temporarily closed until changes can be made to abate the problems the Fredericks claim have forced them to close their museum.
In asking a judge to muffle the Fredericks from making continued public complaints, the Mayhews argued that since 2013, the couple have disparaged and defamed their business by making false statements that the crematorium deposits "human remains" on their property, regularly gives off malodorous dark smoke, and was put in without proper authorization.
The Mayhews cite testing done by the New Hampshire Department of Environmental Services in May 2016 during which no smoke or ash was observed coming from the crematorium stack, but charge that the Fredericks have continued to tell municipal and state officials, townspeople and the media, that the facility exceeds regulatory limits and is depositing human ash on their property.
The Fredricks have acknowledged making such statements, but assert they are neither false or defamatory.
In denying the Mayhews' request, Ignatius held that issuing an injunction is in and of itself an extraordinary measure, but that granting one against the Fredericks, amounts to restraint of free speech.
Ignatius ruled that she was not persuaded that without an injunction, that the Mayhews would be immediately and irreparably harmed by the Fredericks' statements. She further found that the Mayhews had not shown they had a reasonable likelihood of prevailing on the merits of the underlying case.
But the judge did warn the Fredericks that while they were not under any court order, "They make disparaging statements at their peril."
If evidence later proves that the ash they complain of is coming from a source other than the crematorium, does not contain what they call "human remains" or there are other allegedly defamatory statements, the Fredericks could face monetary damages, the judge wrote in a July 26 order.
Four days before the hearing van Zanten failed to attend, he filed a motion asking the judge to extend the deadline for the two sides to share their respective evidence until March 30. Attorneys William Woodbury and Mark Mallory, who represent the Fredericks and the motorcycle museum, which closed its doors in July, assented to the request, which was granted by the judge on Oct. 24.
A final pretrial hearing is now scheduled for March 31. If the parties are unable to reach agreement following mediation, jury selection is set for April 10.
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