Jeffrey Cogswell d/b/a Berry Hill Construction v. Brian Dove

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0554, Jeffrey Cogswell d/b/a Berry Hill
Construction v. Brian Dove, the court on March 24, 2017, issued
the following order:

Having considered the memorandum of law filed by the defendant, Brian
Dove, and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The defendant, Brian Dove,
appeals an order of the Circuit Court (Rappa, J.) granting judgment in the
amount of $1,870 to the plaintiff, Jeffrey Cogswell d/b/a Berry Hill
Construction, on the plaintiff’s small claims action against the defendant. The
trial court entered judgment in favor of the plaintiff after having found the
defendant in default for failing to appear at a pretrial conference. The
defendant also appeals the trial court’s denial of his motion to strike the
default judgment. We affirm.

The relevant facts, as set forth in the record submitted on appeal, are as
follows. Although the defendant has not provided a copy of the plaintiff’s small
claims action, it appears that the plaintiff sought payment for renovations the
plaintiff made to the defendant’s home. The defendant responded to the
plaintiff’s small claims action by requesting an evidentiary hearing and by
asserting that the plaintiff had damaged his property, billed him for insulation
and wallboard that the plaintiff did not use, and billed him for hours in which
the plaintiff did not work on the defendant’s property.

In May 2016, the trial court notified the parties that it would hold a
pretrial conference on July 13. On the day of the conference, the defendant did
not appear. Instead, he filed a motion to continue the conference in which he
alleged that he could not appear because his employer had scheduled him to
work in Buffalo, New York that day. On August 8, the trial court entered a
default judgment against the defendant. The notice of the default judgment
informed the defendant that, if he contested the judgment, he had to file a
motion within 10 days from the date of the notice. The notice also informed
him that, if the plaintiff asked for final judgment and if he contested the
amount of that judgment, he had 10 days from the date of the motion for final
judgment in which to ask for a hearing.

On August 19, the defendant filed a motion to strike the default in which
he, once again, alleged that the plaintiff had damaged his property, billed him
for materials that the plaintiff did not use, and billed him for time the plaintiff
did not work on the defendant’s property. In addition, the defendant alleged
that he “recently had to pay another plumber” because the plaintiff’s
“subcontractor did not properly install the flange for the toilet.” Also on August
19, the plaintiff filed a motion for final judgment. The trial court denied the
defendant’s motion to strike the default judgment and granted the plaintiff’s
motion for final judgment. The defendant unsuccessfully moved for
reconsideration, and this appeal followed.

On appeal, the defendant argues that the trial court erred when it
entered a final default judgment against him after he failed to attend a pretrial
conference. He states: “I apologize for not being able to appear due to my job,
but based [upon] the real issues between the plaintiff and myself since he
damaged my property and charged for time which he did not complete and
materials he did not use[,] I have a merit worthy defense to these claims and a
merit worthy counter claim.” He also contends that his motion to strike the
default did not provide an explanation for his failure to appear at the pretrial
conference because his earlier motion to continue provided that explanation.
In his motion to continue, filed on the day of the pretrial conference, the
defendant alleged that he could not attend the conference because his
employer had assigned him to work in Buffalo, New York that day.

“[T]he entry of a default judgment lies within the discretion of the court.”
46 Am. Jur. 2d Judgments § 236, at 572 (2006). The trial court’s decision
whether to strike an entry of default is also within its discretion. In the Matter
of Maynard & Maynard, 155 N.H. 630, 633 (2007). We will not disturb either
ruling unless the court unsustainably exercised its discretion or erred as a
matter of law. See id. Based upon the limited record submitted on appeal, we
cannot conclude that the trial court unsustainably exercised its discretion
either by entering a default judgment against the defendant or by denying his
motion to strike that judgment. Although we recognize that the defendant was
self-represented in the trial court and is self-represented on appeal, self-
represented litigants are bound by the same rules that govern parties
represented by counsel. In the Matter of Birmingham & Birmingham, 154 N.H.
51, 56 (2006).

Affirmed.

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

Eileen Fox,
Clerk

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