Lancelot Court Condominium Association v. Judith Tompson

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0252, Lancelot Court Condominium
Association v. Judith Tompson, the court on April 29, 2016,
issued the following order:

Having considered the brief filed by the defendant, Judith Tompson, the
memorandum of law filed by the plaintiff, Lancelot Court Condominium
Association (the Association), and the record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The
defendant appeals orders by the Superior Court (Anderson, J.) that: (1)
vacated a prior order, which had dismissed, for procedural reasons, the
Association’s action against the defendant for unpaid condominium
assessments and associated expenses and fees; (2) denied the defendant’s
motion to dismiss on the merits; (3) granted summary judgment to the
Association on liability; and (4) awarded the Association attorney’s fees and
costs. She also appeals aspects of the jury trial on damages. We affirm.

The defendant lists more than 35 questions in her notice of appeal,
although she has not briefed all of them. In examining her appeal, we consider
the following principles. First, we decline to review any issue that the
defendant did not first raise in the trial court. See Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004). Generally, “parties may not have judicial
review of matters not raised in the forum of trial.” Id. It is the burden of the
appealing party, here the defendant, to demonstrate that she raised her issues
before the trial court. Id. Because our rules affirmatively require the moving
party to demonstrate where each question presented on appeal was raised
below, the failure of the moving party to do so “may be considered by the court
regardless of whether the opposing party objects on those grounds.” Id. To the
extent that the defendant urges us to address her arguments under our plain
error rule, we decline to do so. See Sup. Ct. R. 16-A.

Second, “in the realm of appellate review, a mere laundry list of
complaints regarding adverse rulings by the trial court, without developed legal
argument, is insufficient to warrant judicial review.” Douglas v. Douglas, 143
N.H. 419, 429 (1999) (citation omitted); see Keenan v. Fearon, 130 N.H. 494,
499 (1988) (“off-hand invocations” of constitutional rights supported by neither
argument nor authority warrant no extended consideration).

Third, we also will not review arguments that the defendant did not raise
in her notice of appeal. See State v. Blackmer, 149 N.H. 47, 49 (2003).
Although we understand that the defendant is self-represented in this
proceeding, we hold self-represented parties to the same procedural rules that
govern parties represented by counsel. See In the Matter of Birmingham &
Birmingham, 154 N.H. 51, 56 (2006).

I. Motion to Dismiss

The defendant originally attempted to file her motion to dismiss the
Association’s complaint on April 11, 2014. The court returned the motion to
her because she had not yet filed an appearance. The defendant re-filed her
motion on April 18. On May 13, the trial court granted the motion because the
Association had never objected to it. But see Super. Ct. Civ. R. 13(b) (“Failure
to object shall not, in and of itself, be grounds for granting the motion.”);
Hilario v. Reardon, 158 N.H. 56, 60-61 (2008) (holding that the trial court’s
granting of a motion to dismiss based solely on the plaintiff’s failure to object,
without examining the merits of the motion, constituted plain error). In its
order, the court observed that the defendant had represented that she had
“served” her motion on the Association. The court explained that if the
Association had not, in fact, been served, the Association could seek relief from
the dismissal. Thereafter, the Association moved to vacate the dismissal on the
ground that it had not received the April 18 motion. The trial court granted the
Association’s motion to vacate the dismissal.

The trial court subsequently decided the defendant’s motion to dismiss
on the merits. The court explained that, although the defendant argued that
the Association’s complaint failed to state a claim, she did “not argue that [the
Association’s] allegations, if true, would not entitle [the Association] to relief.”
Instead, the trial court determined, the defendant “claim[ed] either that the
allegations are untrue or that any failure to make payment was justified by the
conduct of [the Association].” The trial court concluded that the defendant’s
arguments did not entitle her to dismissal, and, therefore, denied her motion.

In reviewing the trial court’s grant of a motion to dismiss, our standard
of review is whether the allegations in the Association’s pleadings are
reasonably susceptible of a construction that would permit recovery. See
Kilnwood on Kanasatka Condo. Unit Assoc. v. Smith, 163 N.H. 751, 752
(2012). We assume that the Association’s pleadings are true and construe all
reasonable inferences in the light most favorable to it. Id. We then engage in a
threshold inquiry that tests the facts in the petition against the applicable law,
and if the allegations constitute a basis for legal relief, we must hold that it was
improper to grant the motion to dismiss. Id.

As the appealing party, the defendant 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 orders, the defendant’s challenges to them, the

2
relevant law, and the record submitted on appeal, we conclude that the
defendant has not demonstrated reversible error. See id.

II. Summary Judgment

On September 10, the trial court granted summary judgment to the
Association “as to liability only.” In its brief order, the court explained that the
defendant “disputes the amount owed but has not submitted any evidence
suggesting that she owes nothing.” The court scheduled a hearing for an
assessment of damages.

The defendant argues that in so ruling, the trial court erred. However,
she has not included either the Association’s summary judgment motion or her
opposition thereto as a part of the record on appeal. As the appealing party,
the defendant has the burden of providing this court with a record sufficient to
decide her issues on appeal. Bean, 151 N.H. at 250; see Sup. Ct. R. 15(3) (“If
the moving party intends to argue in the supreme court that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence, he
shall include in the record a transcript of all evidence relevant to such finding
or conclusion.”). Lacking a sufficient record, we must assume that the
evidence was sufficient to support the result reached by the trial court. Bean,
151 N.H. at 250. Our review in such a case is limited to legal errors that are
apparent on the face of the record. See Atwood v. Owens, 142 N.H. 396, 396-
97 (1997). Because the defendant has not persuaded us that the trial court
erred as a matter of law by granting summary judgment to the Association on
liability, we uphold that decision.

III. Jury Trial

The defendant appears to challenge the trial court’s jury instructions and
the admission of certain expert testimony. However, by her own admission,
she has not preserved these challenges for our review. Accordingly, we decline
to review them.

IV. Attorney’s Fees and Costs

We review awards of attorney’s fees and costs under our unsustainable
exercise of discretion standard, giving deference to the trial court’s decision.
See Appeal of Local Gov’t Center, 165 N.H. 790, 813 (2014). To be reversible
on appeal, the discretion must have been exercised for reasons clearly
untenable or to an extent clearly unreasonable to the prejudice of the objecting
party. Id. Our task on appeal is not to determine whether we would have
found differently; rather, we determine whether a reasonable person could have
found as the trial judge did. In re Adam M., 148 N.H. 83, 84 (2002). Based
upon our review of the relevant law and the record submitted on appeal, we

3
cannot say that the trial court unsustainably exercised its discretion by
awarding the Association its attorney’s fees and costs.

We have reviewed the defendant’s remaining arguments and conclude
that they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321,
322 (1993). Any issue that the defendant raised in her notice of appeal, but
did not brief, is deemed waived. See In re Estate of King, 149 N.H. 226, 230
(2003).

Affirmed.

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

Eileen Fox,
Clerk

4