Marcella Paul-Roc & a. v. Matthew Demio

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0376, Marcella Paul-Roc & a. v. Matthew
Demio, the court on June 29, 2020, 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, Marcella Paul-Roc (passenger) and Marie Paul-Roc (driver),
appeal a verdict, following a jury trial in Superior Court (Nadeau, J.), in favor of
the defendant, Matthew Demio, on their negligence claims arising out of an
automobile collision. They contend that the trial court erred by: (1) denying a
motion in limine in which they sought to preclude the defendant from asserting
at trial that the collision could not have caused the passenger’s injuries; (2)
allegedly disallowing them from using a diagram drawn by the defendant
during his deposition, which had been admitted as evidence, during their
cross-examination of the defendant and closing argument at trial; and (3)
granting, in part, the defendant’s motion for costs and denying the plaintiffs’
motion to hold the order regarding costs “in abeyance.” We assume, without
deciding, that these issues are preserved.

We first address whether the trial court erred by denying the plaintiffs’
motion in limine. We review the trial court’s decision for an unsustainable
exercise of discretion. See Stachulski v. Apple New England, LLC, 171 N.H.
158, 163 (2018). In determining whether the trial court unsustainably
exercised its discretion, we consider whether the record establishes an
objective basis sufficient to sustain the trial court’s discretionary judgment.
Petition of Second Chance Bail Bonds, 171 N.H. 807, 813 (2019). To show that
the trial court’s decision was not sustainable, the plaintiffs must demonstrate
that its ruling was clearly untenable or unreasonable to the prejudice of their
case. Id.

In this case, the plaintiffs contend that the defendant was required to
produce an expert witness to support his claim that the parties’ collision was
“an extremely low-impact incident” in which “[t]he vehicles were barely
moving,” and that the passenger “was not injured as a result of this accident.”
However, the plaintiffs, not the defendant, carried the burden of establishing
causation. Yager v. Clauson, 169 N.H. 1, 5 (2016). The plaintiffs’ reliance
upon Townsend v. Legere, 141 N.H. 593 (1997), is unfounded because, in that
case, the defendant sought a jury instruction regarding comparative fault, an
issue on which the defendant bore the burden of proof. Id. at 594. Similarly,
their reference to Davis v. Maute, 770 A.2d 36 (Del. 2001), is unavailing
because: (1) in that case, defense counsel’s argument violated a court order;
and (2) the Delaware Supreme Court subsequently limited Davis to its specific
facts, Eskin v. Carden, 842 A.2d 1222, 1233 (Del. 2004); see also Fagnant v.
Foss, 82 A.3d 570, 577 (Vt. 2013) (withdrawing earlier opinion on which
plaintiffs rely).

The jury was not obligated to accept the plaintiffs’ expert’s testimony.
See N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 596 (2015) (stating that
trial court may accept or reject, in whole or in part, expert testimony).
Furthermore, the trial court correctly observed that the defendant could
present evidence through cross-examination sufficient to support his
argument, based on common experience, that the collision’s impact was too
minimal to cause the passenger’s complaints. Upon this record, we conclude
that the trial court’s decision to deny the plaintiffs’ motion in limine was not
unreasonable or untenable. See Stachulski, 171 N.H. at 163.

We next address whether the trial court erred by allegedly restricting the
plaintiffs’ use of a diagram the defendant drew during his deposition, which
had been admitted as evidence. The plaintiffs argue that the trial court
“precluded” them from using the diagram during the defendant’s cross-
examination and their closing argument. We review the trial court’s evidentiary
decisions and rulings on the scope of permissible closing arguments for
unsustainable exercises of discretion. See State v. Breest, 169 N.H. 640, 651
(2017); State v. Collins, 168 N.H. 1, 6 (2015).

The record reflects that the plaintiffs employed the diagram, without
objection, during the defendant’s cross-examination. The defendant objected
only when the plaintiffs’ counsel asked, “And if you’re [the plaintiff driver], and
you’re in this car, and . . . she’s looking over her right shoulder, she can’t see
you?” The trial court sustained the objection on the basis that the question
was speculative, after which the plaintiffs’ counsel continued to refer to the
diagram. The defendant subsequently objected to two other questions that
similarly relied upon the diagram for context, but did not object to the
plaintiffs’ use of the diagram itself.

The record reflects that the plaintiffs’ counsel also used the diagram in
his closing argument, without objection, to argue that the diagram showed that
“if [the defendant] looked over his right shoulder, he should have seen [the
plaintiffs’ vehicle, a]nd . . . he should have stopped. If he didn’t look over his
right shoulder, he wasn’t being careful. He’s negligent either way.” The
defendant objected only when the plaintiffs’ counsel began to hypothesize
about “what a lot of people do” when backing out of a parking space with a
vehicle parked on the right. The trial court sustained the objection on the
basis that the argument was speculative and unsupported by expert testimony
“that that’s what happened or that some people do that.”

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 The defendant did not otherwise object to the plaintiffs’ use of the
diagram during their closing argument. In fact, the plaintiffs’ counsel
apparently continued to rely upon the diagram to support his subsequent
argument that the defendant’s account of the accident had changed. Upon this
record, we conclude that the trial court did not unsustainably exercise its
discretion by restricting the plaintiffs’ use of the diagram during the
defendant’s cross-examination or their closing argument.

Finally, we address whether the trial court erred by awarding costs and
by not staying its order. The superior court, “in its discretion, may allow”
certain specific costs and “other costs including, but not limited to, actual
costs of expert witnesses, if the costs were reasonably necessary to the
litigation.” Sup. Ct. Civ. R. 45(b). In this case, the defendant sought $2,405.06
in total costs, and, over the plaintiffs’ objection, the trial court granted him
$1,879.60 in costs.

The defendant moved for costs prior to the plaintiffs’ appeal. See Super.
Ct. R. 45. However the trial court’s order was not issued until after the
plaintiffs filed their notice of appeal. See Jesurum v. WBTSCC Ltd. P’ship, 169
N.H. 469, 482 (2016) (holding that, because defendants filed appeal before trial
court had ruled on motion for reconsideration of denial of attorney’s fees,
appeal was premature and trial court had jurisdiction to rule on motion
notwithstanding appeal); cf. Van Der Stok v. Van Voorhees, 151 N.H. 679, 681
(2005) (holding that plaintiff properly waited for all issues in case, including
request for attorney’s fees, to be finally decided before taking appeal). Only
then did the plaintiffs move to have the order held “in abeyance” until the
appeal was decided and move in this court to add the costs issues to this
appeal. See Jesurum, 169 N.H. at 482 n.6 (observing that, although appeal
was premature, that did not prevent us from deciding case because: (1) we
later granted request to add attorney’s fee issue on appeal; (2) case had been
fully briefed and argued; and (3) plaintiff showed no prejudice).

The plaintiffs fail to develop their argument that the amount of costs
awarded exceeded the trial court’s authority by not articulating why certain
costs were improperly allowed. See State v. Blackmer, 149 N.H. 47, 49 (2003).
They argue that the trial court erred by denying their motion to hold the order
“in abeyance.” However, by filing their appeal and adding the costs issues to it,
the order was effectively stayed as a matter of law. See Gray v. Kelly, 161 N.H.
160, 167-68 (2010). The record does not reflect that the trial court ordered the
payment of costs by any date prior to the conclusion of this appeal, and the
plaintiffs do not assert that they were found in contempt for failing to pay costs
during the pendency of this appeal. Finally, by this order, we have upheld the
award of costs, effectively rendering moot any claim that, by denying the
motion to hold costs in abeyance, the trial court necessarily compelled the

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plaintiffs to pay the costs award prematurely. See In the Matter of O’Neil &
O’Neil, 159 N.H. 615, 624 (2010).

Affirmed.

Bassett and Hantz Marconi, JJ., concurred; Abramson, J., retired superior
court justice, specially assigned under RSA 490:3, concurred.

Timothy A. Gudas,
Clerk

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