Francis X. O'Brien & a. v. Dynacon Builders, Inc.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0525, Francis X. O'Brien & a. v. Dynacon
Builders, Inc., the court on June 21, 2021, 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).
The defendant, Dynacon Builders, Inc., appeals a final decision of the Superior
Court (Delker, J.) confirming an arbitration award rendered in favor of the
plaintiffs, Francis X. O’Brien and Carol Ann O’Brien. See RSA 542:8 (2007).
The defendant argues that the Trial Court (Abramson and Anderson, JJ.) erred
by not dissolving an ex parte prejudgment attachment of $35,000, see RSA
511-A:8 (2010), which the trial court had granted upon the defendant’s general
operating account held by a New Hampshire bank, on grounds that: (1) the
attachment amounted to a premature attempt to execute upon a judgment
while the defendant pursued litigation in Massachusetts, which it filed after the
plaintiffs had filed the present matter, seeking to vacate the arbitration award;
and (2) the attachment violated RSA 512:21, XI (2010), which exempts funds
“deposited in any account designated as a payroll account” from trustee
process. We affirm.

In denying the defendant’s requests to release the attachment, the trial
court determined that a prejudgment attachment is generally available in New
Hampshire to secure a judgment reasonably likely to be recovered upon
confirmation of an arbitration award, and that the bank account at issue,
which the defendant used for purposes other than solely meeting payroll, was
not “designated as a payroll account” for purposes of RSA 512:21, XI.
However, the trial court stayed the matter while the defendant litigated its
request to vacate the arbitration award in Massachusetts, and confirmed the
award only after the Massachusetts litigation had been finally resolved in favor
of the plaintiffs. The defendant’s challenges to the attachment raise questions
of law, which we review de novo. See Landry v. Landry, 154 N.H. 785, 787
(2007) (stating that defendant’s argument that he was entitled to exemption
from attachment required statutory interpretation, an issue of law subject to de
novo review); LeBlanc v. Berube, 141 N.H. 597, 598 (1997) (noting that
argument that trial court improperly released attachment on ground that
divorce had legally terminated it did not concern whether trial court properly
exercised its discretion to release the attachment, but whether it erred as a
matter of law in determining the legal effect of the divorce).
 As the appealing party, the defendant has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s orders, the defendant’s challenges to them, the
relevant law, and the record submitted on appeal, we conclude that the
defendant has not demonstrated reversible error. See id.

Affirmed.

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

Timothy A. Gudas,
Clerk

2