Sanjeev Lath & a. v. Scott Sample

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0286, Sanjeev Lath & a. v. Scott Sample,
the court on January 31, 2017, issued the following order:

Having considered the brief, the memorandum of law, 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 plaintiffs, Sanjeev Lath and Barbara Belware, appeal an order of the
Superior Court (Ignatius, J.), denying their request for an equitable restraining
order against the defendant, Scott Sample. We construe their brief to contend
that the trial court erred by: (1) not granting a restraining order or finding “an
imminent risk of irreparable harm”; (2) reaching a decision that was inconsistent
with its factual findings; (3) not finding that the defendant had been stalking
them, see RSA 633:3-a (2016); (4) not issuing a restraining order under RSA
chapter 173-B (2014 & Supp. 2016) or RSA 644:4 (Supp. 2016) (governing
harassment); (5) considering the defendant’s actions toward each plaintiff in
isolation; (6) accepting offers of proof when witnesses were not available for cross-
examination; and (7) finding in favor of the defendant when he did not present
any defenses.

At the outset, the defendant argues, and the transcript confirms, that no
exhibits were submitted to the trial court. Accordingly, we have not considered
the documents in the plaintiffs’ appendices other than the complaint and its
attachments. See Sup. Ct. R. 13.

The superior court is a court of general jurisdiction and has authority to
entertain actions in equity when there is no adequate remedy at law. State v.
Simone, 151 N.H. 328, 331 (2004). Its equitable powers include the power to
restrain unwanted contact in the absence of an adequate remedy at law. See id.
Injunctive relief is one of the peculiar and extraordinary powers of equity, to be
exercised only when warranted by imminent danger of great and irreparable
damage. N.H. Donuts, Inc. v. Skipitaris, 129 N.H. 774, 779 (1987). The
propriety of awarding equitable relief rests in the sound discretion of the trial
court to be exercised according to the circumstances and exigencies of the case.
Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 24 (2007).

We will uphold a trial court’s equitable order unless it constitutes an
unsustainable exercise of discretion. Id. When we determine whether a ruling
made by a judge is a proper exercise of judicial discretion, we are really deciding
whether the record establishes an objective basis sufficient to sustain the
discretionary judgment made. State v. Lambert, 147 N.H. 295, 296 (2001). The
trial judge was in the best position to evaluate the evidence, measure its
persuasiveness, and assess the credibility of the witnesses. Town of Atkinson v.
Malborn Realty Trust, 164 N.H. 62, 66 (2012). We defer to the trial court’s
judgment on such issues as resolving conflicts in the testimony, measuring the
credibility of witnesses, and determining the weight to be given evidence. Id. at
66-67. As the fact finder, the trial court was entitled to accept or reject, in whole
or in part, the testimony of any witness or party, and was not required to believe
even uncontroverted evidence. Id. at 67.

We first address whether the trial court erred in finding that the plaintiffs
failed to show that there was an imminent danger of irreparable damage if the
restraining order was not issued. The trial court found that “[t]he plaintiffs
described verbal harassment, crude language and intimidating gestures directed
toward them from the defendant” and that “[t]he defendant . . . describes
aggravating behavior by the plaintiffs.” These findings are supported by the
record and do not show an imminent danger of irreparable harm. To the extent
that the plaintiffs argue that their evidence compelled the trial court to find such
a danger, we disagree. Accordingly, we conclude that the trial court acted within
its discretion in denying the restraining order. See Chase, 155 N.H. at 24.

The plaintiffs argue that the denial of the restraining order was
inconsistent with the trial court’s finding that the defendant “has been verbally
abusive to the plaintiffs and at times has ‘bullied’ them.” However, they do not
cite, nor are we aware of, any authority that this finding compelled a finding that
there was an imminent danger of irreparable harm.

We next address whether the trial court erred in not finding that the
defendant had stalked the plaintiffs. See RSA 633:3-a. The plaintiffs’ complaint
did not reference RSA 633:3-a or stalking. Instead, it stated that it was filed
under Superior Court Civil Rule 48 and that the plaintiffs would suffer
irreparable harm in the absence of a restraining order. At the hearing, the trial
court stated that “things don’t rise to the level of a restraining order because it’s
hard to see what the eminent [sic] threat of irreparable harm is.” It then gave
both plaintiffs the opportunity to respond; neither argued that they were seeking
a stalking order of protection or that the trial court was applying an inapplicable
standard. The plaintiffs did not argue that they were entitled to a restraining
order under RSA 633:3-a until they made such an argument in their motion for
reconsideration. Thus, this issue is not preserved. See Appeal of Morton, 158
N.H. 76, 79 (2008).

Finally, we address the plaintiffs’ arguments that the trial court erred by:
(1) not issuing a restraining order under RSA chapter 173-B or RSA 644:4; (2)
considering the defendant’s actions against each plaintiff in isolation; (3)
accepting the defendant’s offer of proof when his witnesses were not available;
and (4) finding for the defendant when he did not present any defenses. The

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appellant has the burden to provide this court with a record sufficient to
demonstrate that the issues on appeal have been raised before the trial court.
Malborn Realty, 164 N.H. at 69. This rule is not relaxed for self-represented
parties. See In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56-57
(2006). The record before us does not show that the plaintiffs raised these issues
to the trial court. Accordingly, they are not preserved.

To the extent that the plaintiffs’ brief raises additional arguments, they are
either not sufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003),
or otherwise do not warrant further discussion, see Vogel v. Vogel, 137 N.H. 321,
322 (1993).

Affirmed.

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

Eileen Fox,
Clerk

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