Carol Rose v. Jason Purdy

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0186, Carol Rose v. Jason Purdy, the
court on October 26, 2015, issued the following order:

Having considered the plaintiff’s brief and the record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). We affirm.

The plaintiff, Carol Rose, appeals an order of the Circuit Court
(McKenna, J.) dismissing her small claim complaint against the defendant,
Jason Purdy. The trial court dismissed the complaint because: (1) “[t]here was
a previous lawsuit between the parties where the issues of this case could
have, and should have been raised”; and (2) “[t]he cause of action is based
upon matters that ripened March 2nd, 2010 more than three years before this
case was filed on May 7, 2014.” In context, we construe the order as relying
upon the doctrine of res judicata and the applicable statute of limitations, see
RSA 508:4 (2010), in dismissing the plaintiff’s small claim complaint. See In
the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (interpretation of a
trial court order is a question of law, which this court reviews de novo).

On appeal, the plaintiff does not challenge the grounds relied upon by
the trial court in dismissing the case. Instead, she argues that the trial court:
(1) violated her right to due process and certain court rules by granting the
defendant’s earlier motion to vacate a default judgment based upon his failure
to attend a hearing on the merits; and (2) erred by dismissing the case without
holding a hearing on the merits.

We first address whether the trial court erred by granting the motion to
vacate a default judgment. Unless otherwise prohibited by law, the trial court
may waive the strict application of any rule as good cause appears and as
justice may require. Dist. Div. R. 1.1. This rule “does not explicitly bar relief
from all consequences of human neglect.” Perron v. Aranosian, 128 N.H. 92,
95 (1986). Whether to strike a default judgment is a matter that is ordinarily
left to the trial court’s discretion. Hudson v. Musor, 128 N.H. 804, 806 (1986).

In this case, the record reveals that on the day after the trial court held a
final hearing at which the defendant failed to appear, the defendant moved to
vacate a default judgment, asserting that: (1) he is the executive director of a
health care organization with thirty-five employees operating twenty-four hours
per day; (2) his two executive assistants had unexpectedly called in sick on the
prior day; and (3) his presence at work was required as a result of the
absences. The motion further states that a page containing additional facts
and evidence that the defendant would have presented at the hearing was
attached; however, the copy of the motion that the plaintiff has provided on
appeal does not appear to contain any attachment. See Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004) (appealing party bears burden to provide a
record that is sufficient to decide the issues she is raising). We conclude that
the trial court did not unsustainably exercise its discretion by granting the
motion to vacate the default judgment. To the extent the plaintiff asserts that
granting the motion violated her right to due process, she has not adequately
developed the argument. See State v. Blackmer, 149 N.H. 47, 49 (2003).

We next address whether the trial court erred by dismissing the case
without holding a hearing on the merits. We note that the docket sheet
attached to the plaintiff’s notice of appeal suggests that there was a hearing on
the date that the trial court issued its dismissal order.

The trial court has discretion to raise on its own an affirmative defense,
such as the statute of limitations or res judicata, and to dismiss a case on that
basis. Exeter Hospital v. Hall, 137 N.H. 397, 399-400 (1993). Although the
trial court ordinarily must allow a plaintiff an opportunity to present evidence
rebutting the affirmative defense, see id., nothing in the record indicates that
the plaintiff sought to present evidence rebutting the res judicata and statute of
limitations grounds relied upon by the trial court. Indeed, we note that the
plaintiff does not argue on appeal that her small claim complaint was timely
filed, or that it was not barred by res judicata. To the extent she argues that
the dismissal “violates the court’s rules of dismissal,” she has not adequately
developed the argument. See Blackmer, 149 N.H. at 49.

The remaining issues raised by the plaintiff in her notice of appeal, which
she has not briefed, are waived. See id.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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