Cathie A. Partridge-White v. Jonathan Ramsdell

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0281, Cathie A. Partridge-White v.
Jonathan Ramsdell, the court on November 14, 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 plaintiff, Cathie A. Partridge-White, appeals a verdict, following a
jury trial in Superior Court (Colburn, J.) in which the defendant, Jonathan
Ramsdell, “conceded that he [was] legally at fault to some degree,” finding that
the defendant was 70% at fault, that the plaintiff was 30% at fault, and that
the plaintiff suffered damages of $25,000. On appeal, the plaintiff argues that
the trial court erred by denying her motion for partial summary judgment.

At the outset, we note that the plaintiff raises no claims of error
concerning the jury’s verdict or the trial, and has not provided a trial
transcript. Rather, her sole claims of error concern whether the summary
judgment record compelled rulings prior to trial that the defendant, as he
conceded at trial, was at fault, and that, contrary to the jury’s verdict, she was
not at fault. As we recently observed, however, “there is substantial authority
[in other jurisdictions] for the proposition that [when the trial court denies a
motion for summary judgment and the case proceeds to trial and a decision on
the merits,] the trial record supersedes the summary judgment record, thereby
rendering any error in denial of summary judgment unreviewable on appeal.”
O’Malley v. Little, 170 N.H. ___, ___ (decided Aug. 31, 2017). As in O’Malley, we
decline to address in this case whether an erroneous denial of summary
judgment is reviewable following a trial because, even if it is reviewable, the
plaintiff has not established that the trial court erred by denying her motion.

The complaint in this case alleged a single count of negligence against
the defendant for causing an automobile collision by entering an intersection
against a red light. Shortly after the plaintiff filed suit, the trial court issued a
case structuring order, see Super. Ct. R. 5, establishing a deadline for filing
“dispositive motions” of “no later than 120 days prior to trial.” The plaintiff
filed her motion, which she entitled a motion “for partial summary judgment,”
on January 20, 2017. In it, she contended that there was “no genuine issue of
material fact about all but two of the central facts: the extent of the plaintiff’s
injuries, and fair compensation for those injuries.” She followed this statement
with twenty separately-numbered paragraphs containing numerous factual
assertions and a single statement that the defendant was liable, and then
requested that the court “grant . . . partial summary judgment as to each of the
assertions set forth in paragraphs 1 through 20 above.” Counsel for the
plaintiff concluded the motion by certifying that “[d]ue to the dispositive nature
of this motion, assent has not been requested.” See Super. Ct. R. 11(c).

The defendant objected, arguing that: (1) the motion was untimely under
the case structuring order because jury selection was scheduled for April 17,
2017 and, thus, the plaintiff filed it less than 120 days before trial; (2) the
motion was improper because it did not request summary judgment as to any
specific issue on which a jury would be instructed to render a verdict, such as
liability or damages, but merely recited a list of facts that a jury “may consider
when determining liability and damages”; and (3) there were material issues of
fact in dispute relative to whether “a jury could find comparative fault on the
part of the Plaintiff.” The defendant did not submit an affidavit or any other
evidence in support of his objection. The trial court denied the motion “for the
reasons in the Defendant’s objection.”

The plaintiff moved for reconsideration, arguing that: (1) her motion for
summary judgment established that there were “no genuine issues of fact
about most of the issues [the defendant] contest[s] in this case”; (2) the
defendant did not identify or submit any evidence in support of his objection;
and (3) she was thus entitled to judgment establishing that the defendant was
negligent, that the defendant caused her injuries, and that she was not
comparatively at fault. Nowhere in the motion for reconsideration, however,
did the plaintiff address the timeliness of her motion for partial summary
judgment. The trial court denied the motion without providing reasons, and on
April 21, 2017, following a trial that the defendant represents occurred during
the week of April 17, 2017, the jury rendered its verdict. This appeal followed.

On appeal, the plaintiff argues that the summary judgment record
entitled her to judgment as a matter of law as to the defendant’s fault and his
claim of comparative fault. She further argues that her motion for partial
summary judgment was timely because it was not, in fact, a “dispositive
motion.” According to the plaintiff, the term “dispositive motion” is not defined
either by the structuring order or the superior court rules. Because a jury still
would have been required to determine her damages had the trial court granted
her motion, the plaintiff contends that it was not, in fact, a “dispositive motion”
for purposes of the structuring order. Thus, she argues that it was not subject
to the structuring order’s dispositive motion deadline. We disagree.

It is the plaintiff’s burden to provide a record on appeal establishing that
she preserved the arguments she is raising. See Bean v. Red Oak Prop. Mgmt.,
151 N.H. 248, 250 (2004). The trial court must have had the opportunity to
consider any issues asserted by the plaintiff on appeal; thus, the plaintiff was
required to raise in a motion for reconsideration any issues that she could not

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have presented to the trial court prior to its decision. See Super. Ct. Civ. R.
12(e); N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002).

In this case, because the trial court denied the motion for partial
summary judgment for the reasons articulated in the defendant’s objection,
and because the defendant objected in part on the basis that the motion was
untimely under the structuring order’s dispositive motion deadline, the trial
court necessarily denied the motion in part on timeliness grounds. The
plaintiff did not argue in her motion for reconsideration, however, or in any
other portion of the record that she has provided on appeal, see Bean, 151 N.H.
at 250, that a motion for partial summary judgment is not “dispositive” and,
thus, that the motion was not untimely. Accordingly, her argument that the
trial court erred by denying the motion on timeliness grounds is not preserved.

Even if the argument were preserved, however, we conclude that the trial
court did not err by denying the motion on timeliness grounds. The trial court
has broad discretion to manage the proceedings before it. See Buzzard v. F.F.
Enters., 161 N.H. 28, 29 (2010). Its discretion necessarily encompasses the
enforcement of pretrial scheduling orders. See State v. Knight, 161 N.H. 338,
341 (2011); Estate of Sicotte v. Lubin & Meyer, 157 N.H. 670, 673 (2008).
Although the plaintiff is correct that nothing in the case structuring order or
superior court rules specifically defined “dispositive motion,” Superior Court
Rule 11(c) did require that she seek the defendant’s assent to her motion
unless it constituted a “dispositive motion,” a motion for contempt or
sanctions, or a comparable motion. Apparently recognizing this obligation, the
plaintiff’s counsel expressly certified to the court that “[d]ue to the dispositive
nature of this motion, assent has not been requested.” The plaintiff herself
having characterized the motion as “dispositive,” we cannot say that the
decision to enforce the dispositive motion deadline was clearly untenable or
unreasonable to the prejudice of her case. Buzzard, 161 N.H. at 29.

Affirmed.

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

Eileen Fox,
Clerk

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