Chloe Thibodeau v. Alicia L'Esperance

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0314, Chloe Thibodeau v. Alicia
L’Esperance, the court on November 13, 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 defendant, Alicia L’Esperance, appeals an order of the
Circuit Court (Kane, R., approved by Murray, J.) entering judgment in favor of
the plaintiff, Chloe Thibodeau, for failing to timely respond to the plaintiff’s
small claim complaint. See RSA 503:6 (Supp. 2022). We construe the
defendant’s brief to be arguing, in part, that because the trial court allegedly
failed to timely serve the small claim complaint and a subsequent order
requiring the defendant to respond to the complaint by a date certain, it erred
by entering judgment in favor of the plaintiff. We affirm.

RSA 503:6 and the applicable court rules require the circuit court, in a
small claim, to serve notice of the claim, including its substance, upon the
defendant by first class mail. See RSA 503:6, I; Dist. Div. R. 4.2(a). If the
defendant wishes to be heard on the claim, the defendant is required to file a
response to it within thirty days of when it was mailed, and is generally
required to do so electronically. RSA 503:6, I; Dist. Div. R. 4.3(a)(1). In the
absence of a timely-filed response to the small claim, “a default judgment will
be entered in favor of the plaintiff.” RSA 503:6, II; see also Dist. Div. R. 4.3(c).

The record on appeal indicates that on February 4, 2023, the defendant
filed a motion to reconsider a prior default judgment issued on January 31,
2023, based upon the defendant’s failure to timely respond to the small claim
complaint, claiming that February 4 was “the first day that the defendant ha[d]
become aware of” the case. The defendant filed the motion electronically,
demonstrating that the defendant had registered with the electronic filing
system prior to filing the motion. Additionally, the defendant electronically
filed a form identifying the defendant’s email address and mailing address. By
notice of decision dated February 28, 2023, the trial court issued a margin
order on the motion to reconsider granting the motion and requiring the
defendant to file a response to the small claim no later than March 17, 2023.

The defendant did not respond to the small claim complaint by March
17, 2023, and by notice of decision dated May 4, 2023, the trial court issued a
second margin order on the motion to reconsider, this time entering judgment
in favor of the plaintiff due to the defendant’s failure to file a response. The
defendant appealed the May 4 decision to this court on June 2, 2023. Also on
June 2, the defendant filed a motion to “vacate” with the circuit court. The
only “fact” asserted by the defendant in support of the motion to “vacate,”
however, was that the defendant had filed the appeal, and the only relief
requested in the motion, notwithstanding its title, was that the circuit court
“[a]ccept the notice of Supreme Court filing of appeal.” The defendant claimed
in the motion an inability to obtain the plaintiff’s position as to the motion
because the defendant had no “forwarding information” for the plaintiff, and
because “the original claim was never provided.” The trial court issued a
margin order on the motion to “vacate” stating, “Read and so noted.”

On appeal, the defendant alleges that “the original case claim was never
provided [to the defendant] by mail, verbally, electronically, or [in] any other
form.” We construe this allegation to be that the trial court failed to serve
notice of the small claim or its substance upon the defendant pursuant to RSA
503:6. The defendant additionally alleges not to have received notice of the
February 28, 2023 order granting the motion to reconsider until May 4, 2023,
when the defendant claims to have received electronic notices of both the
February 28 and the May 4 orders. We note that, other than asserting in the
June 2 motion to “vacate” that “the original claim was never provided,” the
defendant did not raise any of these allegations in the trial court. See Bean v.
Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (stating that the appealing
party bears the burden on appeal to establish that all issues on appeal were
raised in the trial court). Nevertheless, in light of the defendant’s contention
that “the original claim was never provided,” and in light of confusion created
by the trial court’s inclusion of both the February 28 and May 4 margin orders
on the same motion to reconsider, and by its May 4, 2023 issuance of a notice
of service of an “Order on Motion to Reconsider,” we ordered the trial court to
review its files and report to this court: (1) whether, and when, it served the
small claim complaint upon the defendant; and (2) whether it served the
February 28 order upon the defendant at any point prior to May 4, 2023.

In response to our order, the Trial Court (King, J.) issued an order
thoroughly summarizing the content of its files. The trial court’s order
demonstrates that: (1) the trial court served the defendant with both notice of
the small claim and the small claim complaint by first class mail on December
20, 2022; (2) the trial court mailed the notice of small claim and small claim
complaint to the identical address that the defendant subsequently identified
as the defendant’s mailing address in documents filed on February 4, 2023; (3)
at no point was the small claim notice and complaint returned to the trial court
as undeliverable; (4) the trial court electronically served both the plaintiff and
the defendant with the order granting the motion to reconsider on February 28,
2023; (5) the plaintiff opened the February 28 notice of decision on the motion
to reconsider on March 1, 2023; and (6) the defendant did not open the
February 28 notice of decision until May 4, 2023. Accordingly,
notwithstanding the defendant’s claims to the contrary, the record

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demonstrates that the defendant received sufficient notice of both the small
claim complaint and the February 28, 2023 order so as to respond to the small
claim no later than March 17, 2023. Indeed, although the defendant
speculates that the electronic filing system may have only “queued” the
February 28 notice of decision on February 28, but not sent it until May 4, the
record does not support the speculation, given that the plaintiff opened the
February 28 notice on March 1, well before May 4.

Under these circumstances, we conclude that the trial court did not err
by entering judgment in favor of the plaintiff. See RSA 503:6, II. The
defendant’s remaining arguments concern the merits of the defendant’s dispute
with the plaintiff. Because we conclude that the trial court did not err by
entering judgment in favor of the plaintiff based upon the defendant’s default,
we cannot address these arguments.

Affirmed.

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

Timothy A. Gudas,
Clerk

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