Olga Edstrom v. Mount Saint Mary's Condominium Association

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0472, Olga Edstrom v. Mount Saint
Mary’s Condominium Association, the court on April 29, 2015,
issued the following order:

Having considered the brief filed by the respondent, Mount Saint Mary’s
Condominium Association, the memorandum of law filed by the petitioner,
Olga Edstrom, and the record submitted on appeal, the court concludes that a
formal written opinion is unnecessary in this case. The respondent appeals an
order of the Superior Court (McNamara, J.) granting summary judgment to the
petitioner on her petition to quiet title to her condominium. The summary
judgment ruling voided a 2010 sheriff’s sale of the property. We affirm.

The record establishes the following facts. The petitioner purchased the
condominium in September 2005. In March 2008, she stopped paying the
assessed condominium fees. As a result, the respondent brought a collection
action in what is now the district division of the circuit court and obtained a
judgment against her in the amount of $6,286.56. A writ of execution of
judgment was issued in February 2010.

On April 22, 2010, the petitioner asserted her homestead right of
exemption. See RSA 480:1 (2013); RSA 529:25-a (2007). The sheriff’s sale
took place on April 23, 2010, at which the respondent purchased the
condominium for $6,478.43.

At the end of March 2012, the respondent brought a possessory action
for nonpayment of rent in the circuit court, alleging that the petitioner had held
over after the sheriff’s sale and had failed to pay rent. The petitioner filed a
plea of title in the circuit court on April 24, 2012. Approximately one week
later, on May 2, 2012, the circuit court held a hearing on the merits of the
respondent’s possessory action. But see RSA 540:17 (2007) (providing that a
tenant has until “the next return day” to file her plea of title in superior court
and pay any recognizance ordered by the circuit court); Friedline v. Roe, 166
N.H. 264, 267-68 (2014) (holding that when a tenant files a plea of title in the
circuit court, the circuit court must give the tenant an opportunity to file her
plea of title in superior court and pay any recognizance ordered by the circuit
court). Based upon the date on which the petitioner filed her plea of title in the
circuit court, the next return date was June 5, 2012. See RSA 502-A:26
(2010). In its May 2 order, the circuit court granted the respondent a writ of
possession and denied the petitioner’s plea of title.
 The petitioner moved for reconsideration and filed a notice of intent to
appeal. On June 12, the circuit court denied the petitioner’s motion for
reconsideration. Although the circuit court initially allowed the petitioner’s
intent to appeal, it later decided that her notice was procedurally defective.
The petitioner did not appeal the circuit court’s decision.

The petitioner was evicted from the condominium on June 18, 2012.
That same day, she filed a petition to quiet title in superior court. In March
2013, the superior court ruled upon the parties’ cross-motions for summary
judgment. The court concluded that the circuit court’s May 2, 2012 order did
not preclude the superior court from determining title because the circuit court
had no jurisdiction to decide title. See Friedline, 166 N.H. at 266. The court
ruled that, because the sheriff’s sale was improper in several respects, it was
void. Accordingly, the court granted the petitioner’s summary judgment
motion and denied that of the respondent.

Thereafter, the respondent moved for reconsideration, which, in May
2013, the trial court denied. However, because “the parties’ arguments
regarding the procedural posture of the case — namely, whether [the petitioner]
must file a new possessory action to regain her property — [were] not well
framed,” the court ordered the parties to submit supplemental briefing.

In response, the respondent moved to dismiss the petitioner’s quiet title
petition, arguing that the superior court lacked jurisdiction because, when the
petitioner filed her plea of title in the circuit court, she did not also file a
recognizance. See RSA 540:17. The superior court agreed with the respondent
and granted the motion to dismiss “without prejudice to [the petitioner’s] right
to renew her petition in the superior court upon compliance with RSA 540:17.”

The petitioner appealed the superior court’s dismissal. In an April 18,
2014 unpublished order, we reversed and remanded. We explained that RSA
498:5-a (2010) gives the superior court jurisdiction to hear title disputes and
that RSA chapter 540 does not divest the superior court of jurisdiction under
RSA 498:5-a.

On remand, the petitioner filed a motion for entry of final judgment, to
which the respondent objected. In its objection, the respondent argued, for the
first time, that the petitioner’s petition to quiet title was barred under the
doctrine of res judicata by the judgment entered in a related collection action
that the respondent had filed in superior court. The respondent also asserted,
for the first time, that the sheriff’s sale was not void because the petitioner was
obligated to reimburse the respondent for back rent or the value of time spent
living rent- and mortgage-free in the condominium. Additionally, for the first
time, the respondent contested the valuation of the petitioner’s homestead
right. Relying upon deposition testimony obtained after the parties filed their
cross-motions for summary judgment, the respondent further argued that a

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material issue of fact remained in dispute; namely, whether the petitioner ever
signed the letter in which she asserted her homestead right of exemption.
Finally, the respondent contended that the petitioner’s petition to quiet title
was barred because of various admissions she made in other proceedings in
which the parties had been involved.

The superior court concluded that the respondent “waived any defense
other than one based on jurisdiction by failing to raise it before expiration of
the period for motions to reconsider” the court’s March 2013 order on the
parties’ cross-motions for summary judgment. The court observed that res
judicata “is not a jurisdictional defense” and reasoned that, because the
respondent had “raised no arguments that avoid the finality” of the court’s
prior orders, the court had “no choice but to enforce its final judgment in favor
of Petitioner.” See Gray v. Kelly, 161 N.H. 160, 164 (2010) (stating that both
res judicata and collateral estoppel are affirmative defenses); Super. Ct. Civ. R.
9(d) (recognizing that failure to plead affirmative defenses constitutes waiver).
Accordingly, the trial court reinstated the summary judgment decision it had
previously issued in March 2013. The respondent unsuccessfully moved for
reconsideration, and this appeal followed.

On appeal, the respondent reiterates the arguments it made in its
objection to the petitioner’s motion for entry of final judgment. In addition, the
respondent argues again, as it argued in its original cross-motion for summary
judgment, that the circuit court’s decision in the possessory action was entitled
to preclusive effect. As the appealing party, the respondent has the burden of
demonstrating reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014).
Based upon our review of the superior court’s well-reasoned order, the
respondent’s challenges to it, and the record submitted on appeal, we conclude
that the respondent 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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