Mount Saint Mary's Condominium Association v. Ronald LeClerc

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0189, Mount Saint Mary's Condominium
Association v. Ronald LeClerc, the court on January 27, 2017,
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 defendant, Ronald LeClerc, appeals the order of the Circuit Court
(Spath, J.) awarding damages to the plaintiff, Mount Saint Mary’s
Condominium Association, in the amount of $678.50 plus costs, interest, and
fees, arising from the malfunction of the heating and cooling system on June 1,
2011, in his “S-14” storage space.

As an initial matter, we note that the defendant did not provide a
complete trial transcript. 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.”). Absent a
complete trial transcript, we must assume the evidence was sufficient to
support the trial court’s ruling. See Atwood v. Owens, 142 N.H. 396, 396
(1997). In addition, the defendant did not request specific factual findings.
Accordingly, we must assume that the trial court made all findings necessary
to support its decision, even if it did not do so expressly. Nordic Inn Condo.
Owners’ Assoc. v. Ventullo, 151 N.H. 571, 586 (2004). We address the
defendant’s arguments with these principles in mind.

The defendant first argues that the trial court erred in concluding that he
is responsible for the costs and fees associated with the malfunction of the
heating and cooling system because, he argues, the S-14 storage space is a
“limited common area.” The interpretation of a condominium’s declaration is a
question of law, which we review de novo. Schaefer v. Eastman Community
Assoc., 150 N.H. 187, 191 (2003).

The record shows that the defendant is the owner of condominium unit
311. By amendment to its condominium declaration, the plaintiff reserved the
right to sell storage spaces to unit owners, and “[u]pon such conveyance, the
storage space shall be deemed limited common area appurtenant to the Unit.”
The defendant purchased the S-14 storage space, which contained an air
conditioning system that served only that space. Pursuant to declaration
Section 1.4(E), all air conditioning systems, and any “other appliances or
appurtenances serving only one Unit, wherever located, are deemed to be part
of the Unit served, [and are] deemed to be owned by and are the maintenance
responsibility of the owner.”

Section 1.6 of the declaration provides that “Each Owner is to keep the
Unit and its interior, equipment, appliances, and appurtenances of the Owner’s
Unit . . . in good order and clean condition.” Section 1.6 further provides that
“each Owner is responsible to and must reimburse the Association and the
other Unit Owners for all damage to other Units and/or to the Common Area
resulting from the Owner’s failure . . . to maintain the Owner’s Unit . . . in good
condition.” Section 1.6 also provides that “[a]ny Owner or Unit causing
damage to other Units and/or to the Common Area shall be subject to the
enforcement remedies as provided for in this Declaration and Bylaws, including
the full cost of repair and replacement of the damaged items and areas.”

On June 1, 2011, the air conditioning system in the defendant’s S-14
storage space leaked, causing damage to the condominium unit directly below.
The association incurred costs and fees in repairing the air conditioning unit
and the unit below. We agree with the trial court that, pursuant to the above-
referenced declaration provisions, the defendant was responsible for the
$678.50 in costs and fees arising from the damage. Although the S-14 storage
space was deemed to be limited common area upon conveyance to the
defendant, it was also deemed to be appurtenant to the defendant’s unit, and
the declaration specifically provides that an air conditioning system serving
only one unit is deemed to be part of that unit and the maintenance
responsibility of the owner.

We disagree with the defendant that this interpretation conflicts with
other provisions of the declaration or with the condominium statute. See RSA
356-B:41, I (2009) (which provides that the association is responsible for repair
of common areas “[e]xcept to the extent otherwise provided by the
condominium instruments”) (emphasis added).

The defendant next argues that the trial court erred in upholding the
plaintiff’s enforcement of its rules because the rules were not properly recorded
under the procedures set forth in the declaration. The trial court’s order does
not address this issue. The defendant asserts that he raised the issue in his
motion for reconsideration, which the trial court denied. In its brief, the
plaintiff counters that the recording requirement does not apply to the rules
relevant to this case. The purpose of a motion for reconsideration is to bring to
the court’s attention points of law or fact that the court has overlooked or
misapprehended. See Dist. Div. R. 3.11(E). The trial court has the discretion
not to consider new issues or accept new evidence in a motion for
reconsideration. Smith v. Shepard, 144 N.H. 262, 265 (1999). We will uphold
the trial court’s decision on a motion for reconsideration absent an
unsustainable exercise of discretion. Walker v. Walker, 158 N.H. 602, 607
(2009). Because resolution of this issue would require the court to consider

2
new evidence and address new legal issues, we cannot conclude that the court
unsustainably exercised its discretion in denying the defendant’s motion for
reconsideration in which he raised this issue for the first time. See id.

The defendant also argues that the plaintiff was not a prevailing party in
separate small claims court and superior court cases between the parties, and
that the trial court therefore erred in awarding the plaintiff attorney’s fees.
See RSA 356-B:15, II (Supp. 2009) (prevailing party is entitled to costs and
attorney’s fees). It is the burden of the appealing party, here the defendant, 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 v. Red
Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see also Sup. Ct. R. 16(3)(b) (“After
each statement of a question presented, counsel shall make specific reference
to the volume and page of the transcript where the issue was raised.”). The
trial court’s order does not address this issue, and the defendant has failed to
demonstrate that he raised it in the trial court. Accordingly, we decline to
address it on appeal.

Finally, the defendant argues that the lien placed on his unit for unpaid
assessments is invalid because the plaintiff failed to comply with the statutory
lien procedures set forth in RSA 356-B:46, which require, among other things,
notice by certified mail prior to the recording of the lien. He argues that he is
therefore entitled to an order discharging the lien and awarding him damages.
However, the trial court’s order does not address this issue, and in the limited
record submitted on appeal, the defendant has failed to demonstrate that he
raised it in the trial court. Accordingly, we decline to address it. See Bean,
151 N.H. at 250 (noting that we may consider moving party’s failure to comply
with preservation requirements regardless of whether opposing party objects on
these grounds).

To the extent that the defendant’s brief raises additional arguments, we
conclude that they are insufficiently developed, see State v. Blackmer, 149 N.H.
47, 49 (2003), and warrant no further consideration, see Vogel v. Vogel, 137
N.H. 321, 322 (1993). We will not address issues raised for the first time on
appeal in a reply brief. Harrington v. Metropolis Property Management Group,
162 N.H. 476, 481 (2011).

The plaintiff’s request for attorney’s fees and costs for this appeal
pursuant to Section 6.1(E) of the declaration is granted. The plaintiff shall file
an affidavit of fees and costs within ten days of the date of this order.

Affirmed.

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

Eileen Fox,
Clerk
3