Gary Boyle v. Myra Fowler, DBA L&W Auto Repair

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0407, Gary Boyle v. Myra Fowler, DBA
L&W Auto Repair, the court on April 28, 2022, issued the
following order:

Having considered the brief and limited record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
The plaintiff, Gary Boyle, appeals the order of the Circuit Court (Ryan, R.,
approved by DeVries, J.) dismissing his case against the defendant, Myra
Fowler, DBA L&W Auto Repair, for failing to attend the pre-trial conference,
and its subsequent denial of his request to reopen the case, arguing that he did
not receive notice of the pre-trial conference. We vacate and remand.

The record shows that the plaintiff filed his small claim complaint on
August 8, 2019. On September 7, 2019, the court notified the plaintiff that it
had scheduled a pre-trial conference on October 31, 2019. On September 16,
2019, the plaintiff moved to continue the conference, stating that he required a
new date “on or before September 28 . . . or after May 31,” because he was
leaving on September 29, 2019 and returning May 31, 2020. The court
granted the motion, agreeing to reschedule the conference after May 31, 2020,
“as requested.” The court rescheduled the conference for June 29, 2020, but
later cancelled it, apparently due to the COVID-19 pandemic.

On December 15, 2020, the court issued a notice that the pre-trial
conference had been rescheduled for January 26, 2021. By notice dated
February 2, 2021, the court dismissed the case for the parties’ failure to attend
the pre-trial conference. The plaintiff asserts that he did not receive the
December 15, 2020 hearing notice or the dismissal order.

In his notice of appeal, the plaintiff states that he called the court in
August 2021 and was informed that the case was closed. The court issued him
a notice of appellate rights dated August 27, 2021. We construe the plaintiff’s
brief to argue that the court erred in dismissing the case for his failure to
attend the pre-trial conference and in denying an August 2021 request to
reopen it.

It is not clear from the record whether the plaintiff had an opportunity to
inform the trial court of any error it may have made in notifying the parties of
the pre-trial conference before it dismissed the case. Accordingly, we vacate
the dismissal order and remand for the court to address whether the plaintiff
received proper notice of the conference.
 In his brief, the plaintiff also argues the merits of his claim against the
defendant. It is not the role of this court to make factual findings or to rule on
the merits of the plaintiff’s claim in the first instance.

Vacated and remanded.

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

Timothy A. Gudas,
Clerk

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