Brittany O'Neil v. Andrew C. Wiesner

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0334, Brittany O’Neil v. Andrew C.
Wiesner, the court on June 18, 2021, issued the following
order:

Having considered the briefs of the parties and the record submitted on
appeal, the court concludes that a formal written opinion is unnecessary in
this case. The defendant, Andrew C. Wiesner, appeals an order of the Superior
Court (Howard, J.) granting a restraining order to the plaintiff, Brittany O’Neil,
following a telephonic final hearing. We vacate and remand.

The trial court could have found the following facts. The parties are
neighbors. In May 2020, the plaintiff sought “an Emergency Civil Restraining
Order” against the defendant on the grounds that he had been “harassing” her
since 2018. The plaintiff alleged that the defendant posted an ad on Craigslist,
and sent email messages to city officials and to the plaintiff’s landlord,
accusing her of being a member of a motorcycle gang and engaging in criminal
activity. The plaintiff alleged that the defendant’s actions had negatively
impacted her emotional health and had jeopardized her livelihood. The plaintiff
also alleged that the defendant’s conduct “forced” her “to put cameras around
[her] property,” and caused her to fear for the safety of her dogs. Although the
plaintiff requested ex parte relief, the trial court denied her request, and set the
matter for a hearing.

Following the hearing, the trial court found that the defendant “has
engaged in harassing behavior toward [the plaintiff]” and “has made public
statements that appear false and defamatory toward [her].” The court stated
that, in the “exercise[] [of] its discretionary equitable authority,” it ordered that
the defendant shall: (1) refrain from contacting the plaintiff “either in person,
through a third party, or by any electronic or digital means, including social
media”; (2) “not harass, threaten or intimidate [the plaintiff] or her family
members or residents of her household”; (3) “not come within 100 feet of [the
plaintiff], except as may be necessary to enter, occupy, and leave his premises”;
and (4) “not publish any false or defamatory statement about [the plaintiff] on
any social media platform or any other form of publication.”

The restraining order in this case was issued under the trial court’s
general equitable authority. See State v. Simone, 151 N.H. 328, 331 (2004);
see also In the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008)
(explaining that the interpretation of a trial court order presents a question of
law for our de novo review). The defendant contends that the trial court’s order
was “outside the scope” of that authority because the court failed to find that
the plaintiff lacked a remedy at law and that there was an imminent danger of
irreparable harm.

Although the superior court is a court of general jurisdiction and
possesses equitable powers that include the power to restrain unwanted
contact, see Simone, 151 N.H. at 328-29, 331, it may exercise those powers
only when “there is not a plain, adequate and complete remedy at law.” RSA
498:1 (2010); see Gutbier v. Hannaford Bros. Co., 150 N.H. 540, 542-43
(2004); see also Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 454
(2015) (“The superior court is a court of general jurisdiction and has authority
to entertain actions in equity where there is no adequate remedy at law.”
(quotation omitted)). Moreover, injunctive relief “is one of the peculiar and
extraordinary powers of equity normally to be exercised only when warranted
by imminent danger of great and irreparable harm.” N.H. Donuts, Inc. v.
Skipitaris, 129 N.H. 774, 779 (1987) (citation and quotations omitted). In
cases involving an injunction aimed at speech, a “substantially higher”
standard applies. Mortgage Specialists v. Implode-Explode Heavy Indus., 160
N.H. 227, 240 (2010) (quotation omitted). In such cases, “the trial court must
consider whether publication threatens an interest more fundamental than the
First Amendment itself.” Id. (quotation and brackets omitted).

We cannot discern from the trial court’s order whether it engaged in the
required analysis before invoking its equitable jurisdiction. Moreover, to the
extent that it did engage in that analysis, the trial court’s order contains
insufficient findings and rulings for meaningful appellate review. Under these
circumstances, we vacate and remand to the trial court for it to analyze and
make findings and rulings about whether the plaintiff lacked “a plain, adequate
and complete remedy at law,” RSA 498:1, and whether issuing the restraining
order was warranted because there was “immediate danger of irreparable
harm,” ATV Watch v. N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434, 437
(2007) (quotation omitted). We need not address the defendant’s contentions
regarding the stalking statute because the trial court did not purport to issue a
civil stalking order. See RSA 633:3-a, III-a (2016) (allowing a stalking victim to
“seek relief by filing a civil petition in the district court in the district where the
plaintiff or defendant resides”). In light of our decision to vacate the restraining
order in this case, we decline to address the defendant’s assertions that it was
“vague and overbroad” and “unconstitutionally infringe[d] on his freedom of
speech.”

We next briefly address the defendant’s argument that the trial court
erred by admitting inadmissible hearsay evidence. The defendant made two
hearsay objections at the hearing. He first objected on hearsay grounds to the
plaintiff’s testimony that her landlord told her that the defendant had harassed
previous tenants. He again raised a hearsay objection to the testimony of the

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plaintiff’s mother. The trial court overruled the defendant’s first hearsay
objection and took the second objection under advisement. For the reasons
that follow, we uphold the trial court’s decision to overrule the defendant’s first
hearsay objection. Because we cannot discern how the trial court ruled on the
second hearsay objection, we instruct the trial court on remand to set forth its
ruling.

We review a trial court’s decisions as to the admissibility of evidence
under our unsustainable exercise of discretion standard. McLaughlin v. Fisher
Eng’g, 150 N.H. 195, 197 (2003). Under that standard, “[o]ur task is not to
determine whether we would have found differently,” but only “to determine
whether a reasonable person could have reached the same decision as the trial
court on the basis of the evidence before it.” Benoit v. Cerasaro, 169 N.H. 10,
21 (2016) (quotations omitted). We will not disturb the court’s ruling unless
the appealing party establishes that it is clearly untenable or unreasonable to
the prejudice of its case. McLaughlin, 150 N.H. at 197.

Hearsay is a statement that “the declarant does not make while testifying
at the current trial or hearing” and that “a party offers in evidence to prove the
truth of the matter asserted in the statement.” N.H. R. Ev. 801(c). Here, the
trial court reasonably could have concluded that the plaintiff’s testimony
regarding the landlord’s out-of-court statement was admissible for a non-
hearsay purpose — to show the effect that the statement had on the plaintiff.
“A statement that is not offered to prove the truth of the matter asserted but to
show its effect on the witness is not hearsay.” State v. Reinholz, 169 N.H. 22,
29 (2016); see State v. Hayward, 166 N.H. 575, 581 (2014) (explaining that
evidence of out-of-court statements “offered merely to provide a foundation for
the reasonableness of the defendant’s fear at the time of the robbery” did not
constitute hearsay). Accordingly, because the plaintiff’s testimony about the
landlord’s statement was admissible for a non-hearsay purpose, we cannot
conclude that the trial court unsustainably exercised its discretion by
admitting it.

Finally, the defendant argues that the trial court “accepted documents
from [the plaintiff] without foundation or authentication,” and that “the
admission of statements that were allegedly made to [the plaintiff] and her
mother violated [his] constitutional right to confront the witnesses against
him.” It is the burden of the appealing party, here the defendant, to provide us
with a record demonstrating that he preserved his appellate issues for our
review. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). In general, a
party must make a specific and contemporaneous objection during trial to
preserve an issue for appellate review. Broughton v. Proulx, 152 N.H. 549, 552
(2005). This requirement affords the trial court an opportunity to correct any
error it may have made and is grounded in common sense and judicial
economy. Id.

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 Here, the appellate record fails to demonstrate that the defendant raised
these arguments in the trial court. Therefore, we decline to address them.

Vacated and remanded.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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