Bjorn Bruckshaw & a. v. Donald Polasko

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0579, Bjorn Bruckshaw & a. v. Donald
Polasko, the court on November 30, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, Bjorn Bruckshaw, appeals an order of the
Superior Court (Leonard, J.) dismissing his RSA 540-A petition against the
defendant, Donald Polasko, arguing that the trial court unsustainably
exercised its discretion by striking the defendant’s default and by vacating its
grant of injunctive relief. We affirm.

On February 28, 2022, the plaintiff filed a petition pursuant to RSA
540-A:4 (2021) alleging that the defendant failed to remove dangerous clutter
from the leased premises, constituting a violation of his right to quiet
enjoyment of the property under RSA 540-A:2 (2021). On March 10, 2022, the
court scheduled a March 24, 2022 Webex hearing on the petition. The
defendant, who was self-represented, participated in the hearing by telephone,
after experiencing difficulty connecting via Webex. During the hearing, the
court expressed concern about the number of pending cases between the
parties relating to the same property. The court asked the parties to provide
documentation regarding the status of the other pending matters and ordered
that this matter would be scheduled for an in-person hearing. On May 5,
2022, the court stayed this action until resolution of the related landlord-
tenant matters pending in the circuit court.

Although the defendant participated in the March 24 hearing, and
expressed his intent to defend the case, the plaintiff, on May 10, 2022, moved
for entry of default for the defendant’s failure to file a written appearance form.
On the same date, the plaintiff filed an “emergency motion to reconsider” the
order staying the action, alleging that there were no matters pending in the
circuit court that would preclude him from pursuing this case. The plaintiff
asked the court to vacate its order staying the matter, to “[i]mmediately grant”
him the injunctive relief requested in his petition, and to “[s]chedule without
delay a hearing on the merits.” On June 7, 2022, in margin orders, the court
granted the plaintiff’s motion for default and his motion for reconsideration of
the stay order, without specifically referring to the prayers for relief, and
scheduled the case for a July 5, 2022 in-person hearing on the merits.
 At the start of the July 5 hearing, counsel for the plaintiff asserted that,
in light of the defendant’s default, liability already had been established, and
that the only remaining issue was the amount of damages. The court
explained to the defendant that he had been defaulted for failing to file an
appearance form. The defendant objected, stating that he had appeared by
telephone at the March 24 hearing, that he was not aware of the written
appearance requirement, and that he contested liability for the alleged RSA
540-A violations. The court stated that “we should get to the merits of the
hearing [rather than focusing on] a technicality.” The court advised the
parties that it would decide whether to strike the default after the hearing.

The court asked the plaintiff to “address liability to see whether there is a
[RSA] 540-A [violation],” and then to address damages. Counsel for the
plaintiff, after addressing liability, claimed damages of $26,000, or $1,000 per
day for the 26 days from the date the defendant received the order vacating the
stay until the date of the hearing, plus costs and attorney’s fees. In support of
his request, counsel referred to the request to “[i]mmediately grant [the
plaintiff] the injunctive relief requested in [his] [p]etition,” from his motion for
reconsideration of the stay order. The court rejected the plaintiff’s request to
award damages starting June 7, stating that its intent in granting the motion
for reconsideration was “to allow this [matter] to go forward on the hearing on
the merits.”

In its August 31, 2022 order on the merits, the court reiterated that its
intent in granting the motion for reconsideration was to vacate the order
staying the matter. The court ruled that, to the extent that its order may have
granted the plaintiff’s request for injunctive relief, the ruling was “done in error
and that aspect of the Court’s ruling is hereby vacated.” On the merits, the
court, “[i]n consideration of the testimony of the parties and a review of the
exhibits submitted,” found that the plaintiff failed to sustain his burden of
proof that the defendant willfully violated his right to quiet enjoyment of the
property. The court found that the clutter was located “behind, under, and on
the side of the residence,” and that it was not “in any way impeding the ingress
or egress of the property.” The court dismissed the plaintiff’s petition.

On appeal, the plaintiff argues that the trial court unsustainably
exercised its discretion by striking the defendant’s default and by vacating its
grant of injunctive relief, especially given that the defendant did not file
objections to his motions.

We will not disturb a trial court’s decision to strike a default absent an
unsustainable exercise of discretion or error of law. Lakeview Homeowners
Assoc. v. Moulton Constr., 141 N.H. 789, 791 (1997); State v. Lambert, 147
N.H. 295, 296 (2001). In determining whether a ruling is a proper exercise of
judicial discretion, we consider whether the record establishes an objective
basis sufficient to sustain the trial court’s decision. Lambert, 147 N.H. at 296.

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The plaintiff has the burden to demonstrate that the court’s ruling was clearly
untenable or unreasonable to the prejudice of his case. Id.

The trial court has the discretion to review its own proceedings to correct
error or prevent injustice, see In the Matter of Stapleton & Stapleton, 159 N.H.
694, 696-97 (2010), and may do so sua sponte, see Merrimack Valley Wood
Prods. v. Near, 152 N.H. 192, 202-03 (2005). Although the defendant did not
file an appearance form, he did, in fact, appear telephonically at the remote
hearing. The trial court struck the default, and vacated its grant of injunctive
relief, so that it could consider the case on its merits. In light of our policy in
favor of deciding cases on their merits, see, e.g., Krainewood Shores Ass’n v.
Town of Moultonborough, 174 N.H. 103, 111 (2021), we conclude that the
record establishes a sufficient, objective basis to sustain the trial court’s
discretionary decisions, see Lambert, 147 N.H. at 296.

Affirmed.

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

Timothy A. Gudas,
Clerk

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