The Rolling Green at Whip-Poor-Will Condominium Townhouse Owners' Association v. David Eldridge & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0559, The Rolling Green at Whip-Poor-Will
Condominium Townhouse Owners’ Association v. David Eldridge
& a., the court on July 31, 2017, issued the following order:

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

The defendants, David Eldridge and Mary Ellen McNeill, appeal an order of
the Circuit Court (Moore, J.), granting summary judgment in favor of the
plaintiffs, The Rolling Green at Whip-Poor-Will Condominium Owners’
Association and The Rolling Green at Whip-Poor-Will Condominium Townhouse
Owners’ Association (associations). The defendants contend that the trial court
erred by: (1) defaulting McNeill for failure to file a timely appearance; (2) finding
in favor of the associations after previously denying their motion for summary
judgment; and (3) not admitting documents relating to a 2010 superior court
action between the parties. We assume, without deciding, that these issues are
preserved.

At the outset, we note that, although the trial court granted the
associations summary judgment, it did so after an evidentiary hearing.
Accordingly, we employ the standard that applies to the review of a trial court’s
decision rendered after a trial on the merits. Jesurum v. WBTSCC Ltd. P’ship,
169 N.H. 469, 476 (2016). Under this standard, we uphold the trial court’s
factual findings and rulings unless they lack evidentiary support or are legally
erroneous. Id. We do not decide whether we would have ruled differently from
the trial court, but rather, whether a reasonable person could have reached the
same decision as the trial court based upon the same evidence. Id. 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 and review its application of the law to the facts de novo. Id.

We first address whether the trial court erred by defaulting McNeill.
District Division Rule 3.6(A) provides that “if the defendant shall neglect to enter
an appearance within seven days after the return day of the writ, he shall be
defaulted, and judgment shall be rendered accordingly.” Eldridge timely filed an
appearance, representing himself. At the hearing before the trial court, McNeill
stated that she did not timely file an appearance because she “had no idea about
it, . . . [her] mind was not [on] it [and Eldridge] . . . was taking care of everything.”
To the extent that the defendants argue that “McNeill was confused by the trial
court[’]s questioning” and “Eldridge was not allowed to address the court to
clarify the misunderstanding,” the transcript does not support these contentions.
Although McNeill eventually filed an appearance approximately three months late
and after the associations sought summary judgment, the record does not reflect
that she moved for permission to file late or that she moved to strike the default.

To the extent that the defendants argue that “the trial court should have
acknowledged the fact that [McNeill] was there at the hearing and prepared to
participate,” the record reflects that the court did exactly that. Although it had
defaulted McNeill at the start of the hearing, at the end it invited her to
contribute “anything . . . that I haven’t heard.”

The defendants argue that the trial court’s docket indicates that they filed
a joint appearance on the day that Eldridge filed his individual appearance.
However, they have not provided a copy of such a joint appearance. On the
contrary, the associations provided copies of Eldridge’s and McNeill’s separate
individual appearances, and the defendants did not challenge their authenticity.
Accordingly, we conclude that the trial court’s finding that McNeill did not timely
appear was supported by the evidence and not legally erroneous. See Jesurum,
169 N.H. at 476. Thus, Rule 3.6(A) required the trial court to default her.

We next address whether the trial court erred by ruling in favor of the
associations, following the evidentiary hearing, after previously denying their
motion for summary judgment. A trial court has the power to reverse, even sua
sponte, an earlier denial of a motion for summary judgment. Cilley v. N.H. Ball
Bearings, Inc., 128 N.H. 401, 405 (1986). In this case, the trial court reversed its
previous denial only after an evidentiary hearing on the merits. Accordingly, we
conclude that the trial court did not err.

Finally, we address the trial court’s decision not to admit documents
relating to a separate 2010 action between the parties. The defendants assert
that they “were trying to introduce invoices that showed the accounting error by
the associations which had charged them about 13 different times fees that were
covered by the stipulation” reached in that 2010 action. However, at the hearing,
the trial court identified the documents that Eldridge offered as “a deposition and
. . . a notice of decision” on a motion for contempt. The trial court found that
“nothing in the 2010 matter . . . [was] material and relevant to the issue at hand.”

Although the defendants have the burden on appeal to provide a record
sufficient to decide the issues they are raising, see Bean v. Red Oak Prop. Mgmt.,
151 N.H. 248, 250 (2004), they have failed to provide the stipulation reached in
the 2010 superior court action or the documents they sought to admit in the trial
court. Absent a complete record, we must assume that the record supports the
trial court’s finding. Osman v. Lin, 169 N.H. 329, 334 (2016). Thus, we review
the trial court’s decision for errors of law only, see Atwood v. Owens, 142 N.H.
396, 397 (1997), and find none.

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 The defendants’ remaining arguments either are 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).

The associations’ request for attorney’s fees is denied without prejudice to
the filing of a motion for fees pursuant to Supreme Court Rule 23.

Affirmed.

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

Eileen Fox,
Clerk

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