Craig F. Difeo v. Brian W. Colsia & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0721, Craig F. Difeo v. Brian W. Colsia &
a., the court on August 19, 2020, issued the following order:

Having considered the brief filed by the plaintiff, Craig F. Difeo, and the
limited record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The plaintiff appeals an order
of the Superior Court (Schulman, J.) finding in favor of the defendants, Brian
W. Colsia and Waterway Realty, LLC, on the plaintiff’s damages claims. We
affirm.

The trial court could have found the following facts. This case involves
two foreclosure auctions of the same mixed-use property in Kingston. The
plaintiff is the subrogee of the foreclosing bank. At the first auction, held in
August 2014, the defendants purchased the property for $280,000. The
closing did not take place, however. Accordingly, the foreclosing bank retained
the defendants’ $10,000 deposit as liquidated damages and held another
foreclosure auction in November 2014. The property sold at the second
auction for $100,000 less than it sold at the first auction. The plaintiff alleges
that the property sold for less at the second auction than it did at the first
auction because the defendants committed waste and damaged the property
between August and November 2014. Following a bench trial, the trial court
ruled in favor of the defendants, and this appeal followed.

We will uphold the trial court’s factual findings and rulings unless they
lack evidentiary support or are legally erroneous. Marist Bros. of N.H. v. Town
of Effingham, 171 N.H. 305, 309 (2018). We do not decide whether we would
have ruled differently than 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. Thus, 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. Id.

The trial court found “no evidence, whatsoever” that the defendants
“committed waste or otherwise damaged the premises.” The court further
found that the plaintiff failed to prove, by a preponderance of the evidence, that
the defendants “converted any personalty or fixtures that had been left” at the
property. The court also decided that the defendants were not unjustly
enriched, even though they collected approximately $2,000-$2,500 in rent from
the property’s tenants, because this amount was less than what they paid to
restore electrical service to the tenants and make other necessary repairs.
 On appeal, the plaintiff does not challenge these factual findings, which
are supported by the trial testimony of Colsia and other witnesses. Rather, the
plaintiff argues that the defendants proximately caused his damages because
they failed to close on the property. The trial court ruled, however, that the
plaintiff could not bring this claim as the foreclosing bank’s subrogee because
the bank’s “acceptance of liquidated damages, as explained in [the] court’s
prior order” waived such claims. As the trial judge explained at trial:

I do feel, as from the previous order, that the bank snuffed
out its own claim for any reduction in the . . . foreclosure price
caused by having to do the second foreclosure. I mean, that’s why
they kept the liquidated damages. So we could all sit here and say,
why did it first close for 280[,000] and then closed for 180[,000],
that’s 100,000 dollars difference?

But the bank, to the extent Mr. Colsia’s inability to close was
the cause of that, the bank waived that claim. And, therefore, [the
plaintiff] who was then subrogated to that because the bank took
the liquidated damages.

(Emphasis added.) The plaintiff asserts that this ruling was error because the
liquidated damages clause in the memorandum of sale between the defendants
and the foreclosing bank was unenforceable.

“Before a liquidated damages clause will be enforced, three conditions
must be met: (1) the damages anticipated as a result of the breach are
uncertain in amount or difficult to prove; (2) the parties intended to liquidate
damages in advance; and (3) the amount agreed upon must be reasonable and
not greatly disproportionate to the presumable loss or injury.” Orr v. Goodwin, 157 N.H. 511, 514 (2008). The plaintiff argues that conditions (2) and (3) are
not met in this case. However, he has not provided a record demonstrating
that he made that argument in the trial court.

Generally, parties may not have appellate review of matters not raised at
trial. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, (2004). It is the
appealing party’s burden, here the plaintiff, to provide us with a record
demonstrating that he preserved his appellate issues for our review. Id.

The record submitted on appeal does not demonstrate that the plaintiff
ever argued in the trial court that the liquidated damages clause is
unenforceable because it fails to meet conditions (2) and (3). That argument
was not part of the memorandum he submitted to the trial court. Nor did the
plaintiff make the argument during the bench trial. The record submitted on
appeal does not include any pleading or the transcript of any hearing at which
the plaintiff challenged the validity of the liquidated damages provision on the

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same grounds that he asserts in this appeal. Under these circumstances, the
plaintiff has not preserved his appellate argument for our review.

Even if we were to waive our preservation rule, we would be unable to
address the plaintiff’s argument substantively because he did not include in
the appellate record a copy of the trial court’s prior order regarding the
liquidated damages clause. As the appealing party, the plaintiff also had the
burden of providing us with a record sufficient to decide his appellate issues.
Id. Without a copy of the trial court’s prior order regarding the liquidated
damages clause, we are unable to determine whether, as the plaintiff argues,
the trial court’s order was incorrectly decided.

Affirmed.

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

Timothy A. Gudas,
Clerk

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