James Faro & a. v. Land's End Association

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0100, James Faro & a. v. Land’s End
Association, the court on December 19, 2019, 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 plaintiffs, James Faro and Mary Jean Faro, appeal an order of the
Superior Court (Houran, J.), following a seven-day evidentiary hearing, denying
their motion for contempt against the defendant, Land’s End Association. “A
civil contempt action arises from a private wrong in which the defendant
causes harm to the plaintiff by . . . fail[ing] to comply with a court order.”
Duval v. Duval, 114 N.H. 422, 425 (1974). The trial court’s exercise of its
contempt power is discretionary. Simpson v. Young, 153 N.H. 471, 480 (2006).
To properly exercise its civil contempt power, the underlying order must clearly
describe what the alleged contemnor must do to avoid the sanction. Dover
Veterans Council v. City of Dover, 119 N.H. 738, 740 (1979). On appeal, the
proper inquiry is not whether we would have found the defendant in contempt,
but whether the trial court unsustainably exercised its discretion in refusing to
do so. Simpson, 153 N.H. at 480.

In this case, the plaintiffs premised their claim of contempt, in part, on
their allegation that the defendant had failed to sufficiently irrigate certain
trees on its property, which eventually resulted in the trees dying. The failure
to adequately irrigate the trees, according to the plaintiffs, amounted to
contempt of an obligation under prior court orders to “maintain” the trees. The
trial court found that, had the defendant more consistently watered the trees,
most of the trees would have survived drought conditions which, the trial court
found, were unforeseeably severe in the late fall of 2016. Thus, although the
trial court found that the defendant had not fully complied with prior court
orders obligating it to maintain the trees, it denied the motion because it
determined that the noncompliance was not “willful.”

On appeal, the plaintiffs argue that the trial court erred by: (1) requiring
that they prove willfulness; (2) applying an allegedly erroneous definition of
“willful”; (3) finding that the defendant had not acted willfully; (4) declining to
reconsider its application of the willfulness standard on the basis that the
plaintiffs had failed to timely challenge it; and (5) finding that the defendant’s
noncompliance with prior court orders was attributable to an “act of God.” We
begin by addressing whether the plaintiffs timely raised their challenge to the
willfulness standard.

The record on appeal establishes that, in 2015, prior to the contempt
motion in this case, the trial court resolved another contempt motion brought
by the plaintiffs against the defendant. In deciding the 2015 contempt motion,
the trial court expressly required the plaintiffs to prove that the defendant had
willfully failed to comply with prior court orders. The plaintiffs prevailed, in
part, on the 2015 contempt motion.

The plaintiffs opened their present motion by specifically quoting the trial
court’s finding in the 2015 contempt order that they had proven that the
defendant “willfully failed to comply with [prior court] orders.” The plaintiffs
then asserted that in this case, the defendant “is willfully or recklessly in
breach of its duty to maintain the trees on its property, and in contempt of the
Court’s orders requiring that it do so.” The plaintiffs specifically requested that
the trial court find the defendants in contempt for “[a]cting with willful
indifference to its obligation to maintain the trees.”

The defendant moved to dismiss the contempt motion. In denying the
motion to dismiss, the trial court observed that “proof of contempt . . . requires
proof of knowledge of the court order and of willful failure to comply with the
order.” Thus, the trial court stated that it was required to determine whether
the plaintiffs had pleaded “sufficient facts to show a willful failure on the part
of [the defendant] to comply with” prior court orders. The trial court concluded
that the plaintiffs had pleaded sufficient facts, when construed in the light
most favorable to the plaintiffs, to establish the defendant’s willful
noncompliance with prior court orders. The record does not reflect that the
plaintiffs sought clarification of this order relative to whether they would be
required to prove the defendant’s willfulness at trial.

Shortly before trial, the parties filed conflicting motions concerning the
admissibility of certain e-mail communications. The plaintiffs took the position
that the defendant’s “motive, intent and plan [were] directly at issue in this
contempt proceeding,” and argued that the communications were admissible,
over the defendant’s hearsay objection, as “[e]vidence of [the defendant’s]
motive, intent and plan with regard to its willful mismanagement of the subject
property.” The plaintiffs further argued that the trial court’s ruling in the 2015
contempt proceeding that similar e-mail communications were admissible to
prove “state of mind or intent” constituted “the law of the case and should
apply here in this latest enforcement action.” At the commencement of the
evidentiary hearing, the trial court ruled that, because the party seeking a
contempt ruling “bears the burden of showing a state of mind, willfulness,
often,” it generally would allow the e-mails into evidence for the purpose of
proving the defendant’s knowledge and state of mind. The plaintiffs again did

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not seek clarification of the trial court’s suggestion that they bore the burden to
prove willfulness.

Following the evidentiary hearing, the plaintiffs submitted a 40-page
memorandum of law. In a section of the memorandum entitled, “Legal
Standards,” the plaintiffs specifically asserted that to prevail in this case, they
were required to “prove that [the defendant] had knowledge of a clear and
unambiguous court order, and intentionally failed to comply with it.”
(Emphasis added.) The plaintiffs cited the 2015 contempt order in support of
this statement. The plaintiffs followed this statement with two lengthy block
quotations of Aspira of New York, Inc. v. Board of Education of New York, 423
F. Supp. 647 (S.D.N.Y. 1976), comprising fifteen and thirteen lines of text,
respectively. The first block quotation included the statement, “While a finding
of civil contempt should follow only from ‘clear and convincing proof,’ the
violation need not be wilful to evoke such a remedial determination.” Aspira of
N.Y. Inc., 423 F. Supp. at 653-54 (citations omitted). The plaintiffs then
argued, “Indifference or evasiveness so great that it crosses the line to willful
disregard is contumacious conduct, and that is what happened in this case.”

After the trial court denied the motion for contempt on the basis that the
plaintiffs had not proven willful noncompliance with prior court orders, the
plaintiffs moved for reconsideration, arguing in part that the trial court had
erred by requiring proof of willfulness. In rejecting this argument, the trial
court reasoned, in part, that “this motion for contempt was from the beginning
pled and litigated on a willfulness standard,” and that “[i]t is only now, in a
request for reconsideration, that the [plaintiffs] are asserting that the standard
is erroneous.” Thus, the trial court denied the plaintiffs’ “request to reconsider
the application of the willfulness standard . . . as untimely asserted.”

On appeal, the plaintiffs argue that the trial court erred by declining to
reconsider its application of the willfulness standard because, they claim, their
quotation of Aspira of New York, Inc., amounted to an objection to the
standard. They further argue that the motion for reconsideration was, alone,
sufficient to raise their challenge to the willfulness standard. We disagree.

To preserve an issue for appeal, the appealing party generally must raise
it in the trial court “at the earliest possible time, because trial forums should
have a full opportunity to come to sound conclusions and to correct claimed
errors in the first instance.” SNCR Corp. v. Greene, 152 N.H. 223, 224 (2005)
(quotation omitted). Although a party may preserve an issue by raising it for
the first time on reconsideration if the failure to raise the issue at an earlier
time does not deprive the trial court of a full opportunity to correct its error, we
have held that “[i]f . . . the trial court exercises its discretion to refuse to
entertain the issue on reconsideration due to the party’s failure to raise it at an
earlier time, we will uphold that decision absent an unsustainable exercise of
discretion.” Mortgage Specialists v. Davey, 153 N.H. 764, 786 (2006). We have

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likewise held that “‘a party may not avail himself of error into which he has led
the trial court, intentionally or unintentionally.’” State v. Goodale, 144 N.H.
224, 227 (1999) (brackets omitted) (quoting 5 C.J.S. Appeal and Error § 745, at
179 (1993)).

In this case, even if we assume, without deciding, that the trial court
erred by requiring proof of willfulness, but see In the Matter of Giacomini &
Giacomini, 150 N.H. 498, 501 (2004) (upholding trial court’s denial of contempt
for nonpayment of child support on ground that the obligor mistakenly believed
that he was entitled to offset child support payments with other child
expenses); Stone v. Stone, 111 N.H. 167, 168 (1971) (stating that “[t]he basis
for a finding of contempt is the wilful disobedience by the party charged of an
existing order”); we conclude that the trial court acted well within its discretion
by refusing to reconsider the willfulness standard due to the plaintiffs’ failure
to raise the issue at an earlier time. Indeed, the plaintiffs pleaded their
contempt motion on a theory that the defendant had “willfully failed to comply
with [prior court] orders” by “[a]cting with willful indifference to its obligation to
maintain the trees,” and cited the trial court’s application of the willfulness
standard in the 2015 order as support. In denying the defendant’s motion to
dismiss, the trial court was clear that it would, in fact, require proof of
willfulness. Not only did the plaintiffs fail, at that point, to bring the trial
court’s alleged error to its attention, they then expressly embraced the
willfulness standard by successfully arguing for the admissibility of out-of-
court statements to prove the defendant’s “motive, intent and plan with regard
to its willful mismanagement of the subject property.”

Although the plaintiffs, in their post-trial memorandum of law, quoted
the statement from Aspira of New York, Inc. that a “violation need not be wilful”
to constitute contempt, that statement was part of a lengthy block quote that
followed their unequivocal assertion that to prevail in the case, they were
obligated to prove that the defendant “intentionally failed to comply with” an
unambiguous court order. See Franciosa v. Hidden Pond Farm, 171 N.H. 350,
360 (2018) (interpreting “willful . . . disregard for the safety of the participant”
in RSA 508:19, III(d) (2010) to include having a “conscious purpose to
disregard” the participant’s safety). Moreover, the plaintiffs followed their
lengthy block quotations of Aspira of New York, Inc. by arguing that the
defendant had, in fact, engaged in sufficient “willful disregard” of its obligations
so as to amount to contempt. Finally, we note that by the time the plaintiffs
had filed their post-trial memorandum of law, the parties had already tried the
case over the course of seven trial days based upon the plaintiffs’ pleaded claim
that the defendant had “willfully failed to comply with [prior court] orders.”
Under these circumstances, we conclude that the plaintiffs effectively invited
any alleged error in requiring proof of willfulness, see Goodale, 144 N.H. at 227
(holding that the defendant could not “claim [that] the trial court erred by using
the very standard he had [earlier] asked the court to apply”), and that the trial
court did not unsustainably exercise its discretion by declining to reconsider its

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application of the willfulness standard on timeliness grounds, see Mt. Valley
Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 654-55 (2000).

To the extent the plaintiffs contend that the trial court erred by not
applying the “inexcusable carelessness” definition of willful, we note that the
trial court, in fact, found the defendant “not guilty of a ‘conscious wrong or evil
purpose’ or ‘at least inexcusable carelessness.’” (Quoting Franciosa, 171 N.H.
at 359) (emphasis added).) In context, we construe the trial court’s order as
having found that the plaintiffs failed to establish willfulness under any of the
definitions in Franciosa, including “inexcusable carelessness.” See In the
Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (interpretation of trial
court order is a question of law, which we review de novo).

With respect to the remaining issues on appeal, it is the plaintiffs’
burden, as the appealing parties, to demonstrate reversible error. Gallo v.
Traina, 166 N.H. 737, 740 (2014). Based upon our review of the trial court’s
well-reasoned order, the plaintiffs’ remaining arguments, the relevant law, and
the record submitted on appeal, we conclude that the plaintiffs have not
demonstrated reversible error. See id.

Affirmed.

Hicks, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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