City of Berlin v. Paul Croteau, Sr. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0274, City of Berlin v. Paul Croteau, Sr. &
a., the court on June 14, 2019, issued the following order:

The defendants’ motion to hear all minutes, which we construe as a
request for additional transcripts, is denied.

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 defendants, Paul Croteau, Sr. and Paul Croteau, Jr., appeal an order
of the Superior Court (Bornstein, J.) granting a motion by the plaintiff, the City of
Berlin (city), for relief from Croteau, Sr.’s fraudulent transfer of real property to
Croteau, Jr. and to attach the properties. We construe the defendants’ brief to
contend that the trial court erred by: (1) conducting a hearing on the city’s
motion, instead of a jury trial; (2) conducting a hearing when the city had not
directly answered all of their interrogatories; (3) authorizing attachments when
they were not prepared to address that issue; (4) not allowing them sufficient
time at the hearing to present their case; (5) not allowing their objection and
argument to a portion of the city’s offer of proof; and (6) not finding that the city
caused Croteau, Sr. to violate a stipulation agreement between him and the city.

To preserve an argument for appellate review, we generally require issues
to be raised at the earliest possible time because trial forums should have a full
opportunity to come to sound conclusions and correct errors in the first instance.
Bedford Sch. Dist. v. State of N.H., 171 N.H. 246, 250 (2018). This is only fair to
the parties, the trial forums, and the appellate court. Cogswell Farm Condo.
Ass’n v. Tower Group, Inc., 167 N.H. 245, 253 (2015). The appealing parties,
here the defendants, have the burden to provide this court with a record
sufficient to demonstrate that the issues on appeal were raised before the trial
court. Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 69 (2012). Any
issues that could not have been presented to the trial court prior to its decision
must be presented to it in a motion for reconsideration. Super. Ct. Civ. R. 12(e);
see N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002). These rules
are not relaxed for self-represented parties. See In the Matter of Birmingham &
Birmingham, 154 N.H. 51, 56-57 (2006).

In this case, even if we were to assume that the nature of the relief sought
by the plaintiff entitled the defendants to a jury trial, the record does not reflect
that the defendants objected when the matter was scheduled for hearing before
the trial court. Nor did they request a jury trial at the start of the hearing. See
SNCR Corp. v. Greene, 152 N.H. 223, 224 (2005) (stating that conduct
inconsistent with intent to insist upon a jury trial may constitute a waiver of jury
trial).

Although the defendants complained briefly at the hearing that the city
had not answered their interrogatories, when the city explained in detail its
objections to those interrogatories, the defendants did not move to compel
responses, see Super. Ct R. 23(k)(1), or seek sanctions, see Super. Ct. R. 21(d)(1).
See Wheeler v. School Admin. Unit 21, 130 N.H. 666, 670 (1988) (affirming
decision not to sanction party that did not provide complete discovery when
opponent failed to seek to compel compliance). Similarly, the defendants did not
object to the trial court addressing both the fraudulent transfer and the request
for attachment, which were contained in the same motion, until they sought
reconsideration. See In the Matter of Kelly & Fernandes-Prabhu, 170 N.H. 42, 46
(2017) (stating that issue raised for first time in motion for reconsideration, which
deprived trial court of full opportunity to correct its error, is not preserved for
review).

The record does not reflect that the defendants ever complained to the trial
court that they were not afforded sufficient time at the hearing. In fact, the trial
court asked them at the hearing whether they had anything more they wanted to
add, to which they responded that they did not. Furthermore, the trial court
allowed the parties time to file supplemental pleadings.

On this record, we conclude that the defendants failed to raise the first
four issues summarized above at the earliest possible time. Accordingly, we
conclude that these issues are not properly before us for review. See Bedford
Sch. Dist., 171 N.H. at 250.

The record does not support the defendants’ contention that “[t]he court
would not allow [Croteau, Sr.’s] objection [or his] argument against” the city’s
proffer that the assistant finance director would testify that Croteau, Sr.
indicated that Croteau, Jr. used Croteau, Sr.’s money to pay the taxes on the
properties after he transferred them to Croteau, Jr. On the contrary, Croteau,
Sr. objected to, and contradicted, the city’s proffer and testified to his
understanding of the event. We note that the parties had proceeded by offers of
proof in a previous hearing.

The defendants argue that the city caused them to violate the stipulation
agreement between Croteau, Sr. and the city, which was incorporated into a
court order. However, approximately seven months prior to the hearing on the
city’s motion for relief from a fraudulent transfer and for an attachment, the trial
court ruled that Croteau, Sr. had violated the stipulation agreement. The record

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does not reflect that the defendants appealed this decision. Accordingly,
arguments regarding the violation were not material here.

Affirmed.

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

Eileen Fox,
Clerk

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