Thomas Kondrat, Trustee of the Irene M. Kondrat Trust v. Town of Freedom & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0342, Thomas Kondrat, Trustee of the
Irene M. Kondrat Trust v. Town of Freedom & a., the court on
April 29, 2015, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, Thomas Kondrat, Trustee of the Irene M. Kondrat Trust, on his own
behalf and on behalf of a class of persons similarly situated, appeals several
orders of the Superior Court (Houran, J.) related to: (1) his request for a
declaration that the defendants, the Town of Freedom, the Town of Freedom
Board of Selectmen, and the Town of Freedom Road Agent, had the right to
construct and maintain a contested road to a width of only sixty inches (Count
I); and (2) his claim that because the defendants widened the road beyond that
width, he was entitled to compensation, damages, and attorney’s fees (Counts
II to IV). We affirm.

We begin by briefly recounting the procedural history of the case. In
December 2008, the trial court granted the plaintiff’s request for class
certification on Count I but denied the request as to Counts II to IV. The
plaintiff subsequently propounded interrogatories and requests for admissions
to the defendants, who failed to timely respond, resulting in a final default
judgment against them. After entering the final default judgment, the court
scheduled a hearing on damages. See Super. Ct. R. 36 (2009) (“If, upon review
of an affidavit of damages, the court determines that it does not provide a
sufficient basis for determining damages, the court may, upon its own motion,
order a hearing thereon.”) (recodified 2013, see Super. Ct. Civ. R. 29(c)).
Following the hearing on damages, the trial court concluded that the
defendants had established that “the public has a vested right of way at four
rods, over the road at issue, which still exists to this day.” Consequently, it
denied the plaintiff’s requests for compensation, damages, and attorney’s fees.
This appeal followed.

On appeal, the plaintiff argues that the trial court unsustainably
exercised its discretion when it denied class certification as to Counts II to IV
because it was not persuaded that “compensation could be determined on
anything but a property by property basis” or that the application of the
plaintiff’s “pro-rata method of valuation” could “tak[e] into account any unique
characteristics of each property.” See Super. Ct. R. 27-A(a) (2008) (identifying
prerequisites to a class action, including requirement that common questions
of law or fact predominate over questions affecting only individual members)
(recodified 2013, see Super. Ct. Civ. R. 16(a)); Petition of Bayview Crematory,
155 N.H. 781, 784 (2007) (adopting unsustainable exercise of discretion
standard for reviewing trial court’s decision on class certification).

The plaintiff also argues that the trial court erred by ordering a hearing
on damages instead of adopting the plaintiff’s proposed measure of damages.
See Super. Ct. R. 36. The plaintiff further contests the trial court’s
determinations that: (1) the defendants could assert, as a defense to damages,
that the plaintiff did not own the land at issue (the “ownership defense”); (2) the
ownership defense was not contrary to the default judgment, because the
decree pro confesso did not preclude the court’s finding that the public has a
vested right of way over the road; and (3) evidence that the defendants did not
present in response to interrogatories or requests for admissions prior to the
default judgment was admissible to support the ownership defense at the
damages hearing. Finally the plaintiff argues that the evidence did not support
the trial court’s finding that the road at issue was laid out to a width that
exceeds sixty inches before the town was incorporated, nor its conclusion that
the public’s vested right of way is four rods wide.

As the appealing party, the plaintiff has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned orders, the plaintiff’s challenges to
them, the record submitted on appeal, and the relevant law, we conclude that
the plaintiff has not demonstrated reversible error. See id.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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