Charles Emerson v. Noel Gonzales & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0449, Charles Emerson v. Noel Gonzales &
a., the court on July 31, 2017, issued the following order:

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

The plaintiff, Charles Emerson, appeals the order of the Circuit Court
(Kent, Referee, approved by Rappa, J.), following a hearing in a small claims
case, entering a judgment for the defendants, Noel Gonzales and Melody
Dumais, on his claim for breach of contract involving the sale of a bus.

We construe the plaintiff’s brief to argue first that the trial court’s factual
findings are not supported by the evidence and are contrary to the evidence.
We will affirm the trial court’s factual findings unless they are unsupported by
the evidence. Behrens v. S.P. Constr. Co., 153 N.H. 498, 500-01 (2006).
Conflicts in testimony, questions about the credibility of witnesses, and the
weight to be given to testimony are matters for the trial court to resolve. In the
Matter of Aube & Aube, 158 N.H. 459, 465 (2009). “If the findings can
reasonably be made on all the evidence, they must stand.” Blagbrough Family
Realty Trust v. A & T Forest Prods., 155 N.H. 29, 38 (2007) (quotation omitted).

The record shows that the plaintiff, following an inspection, purchased a
bus from the defendants for $10,000. The plaintiff asserts that the defendants
misrepresented the condition of the bus and reneged on their agreement to
deliver it to his home in Massachusetts. The trial court found that the sale was
an “as is” and “where is” sale, that there was no fraud or misrepresentation,
and that the plaintiff accepted the vehicle in Littleton, New Hampshire, and
assumed any risk or expense entailed in transporting the bus to his home in
Massachusetts.

The court found that the defendants arranged to have the bus driven to
Massachusetts only to accommodate the plaintiff. The defendants’ driver left
the bus at a Wal-Mart in Tilton, New Hampshire, after the defendants received
phone calls from the plaintiff that they felt were threatening. We conclude that
the trial court’s findings are supported by the record and are reasonably made,
based upon the evidence. See Behrens, 153 N.H. at 500-01; Blagbrough
Family Realty Trust, 155 N.H. at 38.
 The plaintiff also asserts that he “now has printed evidence of the texts
from the Defendants which shows that they misrepresented to the Court the
basis of this case,” and that if the trial court had allowed him to introduce texts
from his phone into evidence, “we would not be in this appeal situation.” 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). It is the burden of the appealing party, here the plaintiff, 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. Id.; 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). The plaintiff in this case has failed to show that he
sought to introduce texts from his phone into evidence, that the trial court
denied any such request, or that the plaintiff objected to any such ruling by the
trial court. Accordingly, this issue is not preserved for review.

We reject the plaintiff’s request to review exhibits attached to his brief
that were not presented to the trial court. See Flaherty v. Dixey, 158 N.H. 385,
387 (2009) (on appeal, we consider only evidence and documents presented to
the trial court); see also Sup. Ct. R. 13.

Affirmed.

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

Eileen Fox,
Clerk

2