Amir Mirza & a. v. Robert Cheney & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0342, Amir Mirza & a. v. Robert Cheney &
a., the court on June 13, 2024, 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 defendants appeal an equitable restraining order issued by the
Superior Court (Temple, J.) following a hearing, restraining the parties from
having contact with each other. See RSA 498:1 (2010). We construe the
defendants’ brief to argue that the evidence was insufficient to support the
court’s order. We affirm.

“The superior court is a court of general jurisdiction and has authority to
entertain actions in equity when there is no adequate remedy at law.” State v.
Simone, 151 N.H. 328, 331 (2004). Its equitable powers include the power to
restrain unwanted contact in the absence of an adequate remedy at law. See id.
“The propriety of awarding equitable relief rests in the sound discretion of the
trial court to be exercised according to the circumstances and exigencies of the
case.” Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 24 (2007).

“We will uphold a trial court’s equitable order unless it constitutes an
unsustainable exercise of discretion.” Id. “When we determine whether a ruling
made by a judge is a proper exercise of judicial discretion, we are really deciding
whether the record establishes an objective basis sufficient to sustain the
discretionary judgment made.” State v. Lambert, 147 N.H. 295, 296 (2001). To
show that the trial court’s decision is not sustainable, the appealing party must
demonstrate that the court’s ruling was clearly untenable or unreasonable to the
prejudice of his case. Id.; see also Gallo v. Traina, 166 N.H. 737, 740 (2014)
(holding that the appealing party bears the burden of demonstrating reversible
error).

Here, the defendants have failed to carry that burden. Based upon our
review of the record, the evidence supports the trial court’s discretionary decision
to grant an equitable restraining order in this case. To the extent the defendants
contend that the trial court erred by crediting the plaintiffs’ testimony, or by
affording insufficient weight to their proffered exhibits — which, we note, were
accepted into evidence — we disagree. “[T]he trial judge was in the best position
to evaluate the evidence, measure its persuasiveness and assess the credibility of
the witnesses.” Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66
(2012) (quotation omitted). “We defer to the trial court’s judgment on such issues
as resolving conflicts in the testimony, measuring the credibility of witnesses,
and determining the weight to be given evidence.” Id. at 66-67. “As the fact
finder, the trial court was entitled to accept or reject, in whole or in part, the
testimony of any witness or party, and was not required to believe even
uncontroverted evidence.” Id. at 67. Lastly, to the extent the defendants argue
that the trial court erred by dismissing a particular witness, we note that the
defendants failed to preserve this issue for appellate review as they did not object
when they had the opportunity at the time the trial court allowed the witness to
leave. See State v. Blackmer, 149 N.H. 47, 48 (2003) (observing that “we will not
review any issue that the defendant did not raise before the trial court,” and that
“[t]he general rule in this jurisdiction is that a contemporaneous and specific
objection is required to preserve an issue for appellate review” (quotation
omitted)).

Affirmed.

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

Timothy A. Gudas,
Clerk

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