Brian A. Gillis, as Trustee of the Gillis Family Irrevocable Trust of 2012 v. Randall S. Lawson & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0487, Brian A. Gillis, as Trustee of the
Gillis Family Irrevocable Trust of 2012 v. Randall S. Lawson & a.,
the court on January 22, 2016, issued the following order:

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

The petitioner, Brian A. Gillis, Trustee of the Gillis Family Irrevocable
Trust of 2012, appeals an order of the Superior Court (Delker, J.), following a
hearing, on motions filed after the entry of final judgment in a quiet title action.
The petitioner argues that the trial court erred in: (1) ruling upon an allegedly
untimely motion for instructions filed by the respondents, Randall S. Lawson
and Joan K. Lawson; (2) ruling that shrubs he recently planted interfere with
the respondents’ right-to-travel easement; (3) admitting into evidence a plan
prepared by the respondents’ surveyor after the trial on the merits; (4) ruling,
in its February 4, 2015 order on the merits, that the failure to object to the
relocation of a fence in 1999 precluded him from quieting title to a portion of
the disputed land; and (5) denying his motion for contempt.

The petitioner first argues that the trial court erred in ruling upon the
respondents’ motion for instructions because it was not timely filed. It is a
long-standing rule that parties may not have judicial review of matters not
raised in the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004); see also In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56
(2006) (self-represented litigants are bound by the same procedural rules that
govern parties represented by counsel). It is the burden of the appealing party,
here the petitioner, to provide this court with a record sufficient to decide his
issues on appeal, as well as to demonstrate that he raised his issues in the trial
court. Bean, 151 N.H. at 250. Because the record fails to show that the
petitioner raised this issue in the trial court, we decline to address it. See id.

We note that, even if the petitioner had preserved this issue, the trial
court retained authority to enforce its order on the merits. See, e.g., In the
Matter of Kosek & Kosek, 151 N.H. 722, 726 (2005) (noting that “[t]he power of
contempt to enforce previous orders of a court of general jurisdiction is
extensive”). Such authority is not constrained by the time limitation in
Superior Court Civil Rule 12(e) governing motions for reconsideration or other
post-decision relief. Here, the motion for instructions, in which the
respondents simply requested that the trial court resolve the parties’ dispute
over their respective obligations under the order on the merits, fell squarely
within the court’s authority to enforce the order.

The petitioner next argues that the trial court erred in ruling that shrubs
he recently planted interfere with the respondents’ right-to-travel easement and
must be removed. The scope of a prescriptive easement is determined by the
prior use of the land, see Sandford v. Town of Wolfeboro, 143 N.H. 481, 490
(1999), which is a question of fact. Absent a transcript of the trial and hearing
on post-trial motions, we must assume that the evidence was sufficient to
support the court’s ruling. See Atwood v. Owens, 142 N.H. 396, 396 (1997).

The petitioner also argues that the trial court, in its order on the merits,
found that he owns the land where he planted the shrubs, the area between
the respondents’ new, vinyl fence and the location of the original wooden fence.
However, as the court observed, it specifically rejected the petitioner’s assertion
that the wooden fence marked the location of the boundary line in its order on
the merits. The interpretation of a trial court order is a question of law, which
we review de novo. See Edwards v. RAL Auto. Group, 156 N.H. 700, 705
(2008). Here, we conclude that the trial court correctly interpreted its order on
the merits and, thus, that it did not err by ordering the petitioner to remove the
shrubs or in locating the boundary line according to the terms of that order.

The petitioner next argues that the trial court erred in admitting into
evidence a plan prepared by the respondents’ surveyor after trial to depict the
boundary line as determined by the court in its order on the merits. He argues
that the respondents submitted the plan without the disclosures required by
RSA 516:29-b, II (Supp. 2015), that the surveyor failed to provide testimony to
establish a basis to admit the plan, and that the court denied him an
opportunity to cross-examine the surveyor. The record fails to show that the
petitioner raised these issues in the trial court. Accordingly, we decline to
address them. See Bean, 151 N.H. at 250. To the extent that the petitioner
argues that admission of the plan constituted plain error, his argument is not
fully developed, and we decline to address it. See State v. Blackmer, 149 N.H.
47, 49 (2003) (confining our review to issues fully briefed).

The petitioner next argues that the trial court erred in ruling that the
failure of his family to object to the relocation of the fence in 1999 precluded
him from quieting title to the full width of the driveway. The petitioner’s
argument challenges a ruling in the court’s order on the merits, which neither
party appealed. Accordingly, we conclude that the issue is beyond the scope of
this appeal. See Brian A. Gillis, as Trustee of the Gillis Family Irrevocable
Trust of 2012 v. Randall S. Lawson & a., No. 2015-0487 (N.H. September 30,
2015) (accepting this case as an appeal from the court’s July 7, 2015 order on
post-trial motions); see also Germain v. Germain, 137 N.H. 82, 84-85 (1993)
(ruling that, because appellant had not timely filed a motion for reconsideration

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from the order on the merits, the appeal was timely only as to the order
denying the untimely motion, and not as to the order on the merits).

Finally, the petitioner argues that the trial court erred in denying his
motion for contempt, asserting that the respondents failed to remove the
offending fence “as soon as the weather permit[ted],” as the court ordered, and
that they failed to comply with the order on the merits in other respects. The
contempt power is discretionary, and the proper inquiry is not whether we
would have found the respondents in contempt, but whether the trial court
unsustainably exercised its discretion. In the Matter of Conner & Conner, 156
N.H. 250, 253 (2007). To show that the trial court’s order is unsustainable, the
petitioner must demonstrate that the ruling was unreasonable or untenable to
the prejudice of his case. Foley v. Wheelock, 157 N.H. 329, 332 (2008). The
petitioner’s arguments involve factual assertions, and without a transcript of
the hearing, we cannot conclude that the trial court’s decision was
unreasonable or untenable to the prejudice of his case. See id.; Atwood, 142
N.H. at 396.

Affirmed.

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

Eileen Fox,
Clerk

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