Brian McGivern v. Erickson Foundation Supportworks, ADO Erickson Construction

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0252, Brian McGivern v. Erickson
Foundation Supportworks, ADO Erickson Construction, the
court on October 11, 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, Brian McGivern, appeals orders of the Circuit
Court (Curran and Rauseo, JJ.) in this small claim case entering judgment in
favor of the defendant, Erickson Foundation Supportworks, ADO Erickson
Construction Co., Inc., on its counterclaim based upon the plaintiff’s failure to
attend the pretrial hearing, see Dist. Div. R. 4.4(b), and denying the plaintiff’s
motion to reconsider. We affirm.

District Division Rule 4.4(b) provides: “Attendance at the pre-trial
hearing [in a small claim case] shall be mandatory. . . . Failure by either party
to attend the pre-trial hearing shall result in a judgment in favor of the other
party. . . . A default judgment shall not be stricken except upon a finding of
good cause by the court.” Dist. Div. R. 4.4(b). In this case, the parties agreed
to continue the pretrial hearing, originally scheduled for December 29, 2022,
and on January 9, 2023, the plaintiff received electronic service of the trial
court’s notices granting the continuance and rescheduling the pretrial for
March 10, 2023. The plaintiff did not attend the pretrial hearing on March 10,
and by notice of decision dated April 5, 2023, the trial court (Curran, J.)
granted the defendant default judgment in the amount of $6,048.71 plus
interest and costs on its counterclaim.

The plaintiff moved for reconsideration, claiming that, when he received
electronic service of the relevant trial court notices on January 9, he only saw
the notice of the court’s order granting the continuance, and did not see the
hearing notice. In denying the motion to reconsider, the Trial Court (Rauseo,
J.) specifically found that, in fact, the “e[-]filing records show the plaintiff
opened the Hearing Notice on 1/09/23 at 6:59 p.m.”

On these facts, we cannot conclude that the trial court unsustainably
exercised its discretion or erred as a matter of law by entering default and
declining to strike the default for good cause. See Douglas v. Douglas, 143
N.H. 419, 422-25 (1999). The plaintiff’s remaining arguments concern the
merits of whether the defendant was entitled to judgment on its counterclaim.
Because we conclude that the trial court did not err by entering default based
upon the plaintiff’s failure to attend the pretrial hearing, we need not address
these arguments.

Affirmed.

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

Timothy A. Gudas,
Clerk

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