Peter Boraczek v. Robert Shone

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0425, Peter Boraczek v. Robert Shone, the
court on October 23, 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, Robert Shone, appeals orders of the
Circuit Court entering default in favor of the plaintiff, Peter Boraczek (Zaino,
J.), for failure to attend the pretrial hearing on the plaintiff’s small claim, see
Dist. Div. R. 4.4(b), and denying the defendant’s motion to reconsider the
default (Steckowych, J.). We construe the defendant’s brief to include his July
27, 2023 submission arguing that, because he established that he was under
military orders to report for military training outside of New Hampshire at the
time of the pretrial hearing, the trial court erred by denying his motion to
reconsider. We agree, and reverse and remand.

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). The “good cause” standard does
not bar relief from all consequences of human neglect, and “is equivalent to
what is reasonable and just.” In re D.O., 173 N.H. 48, 60 (2020) (quotation
omitted). “In contexts other than those involving statutes of limitations, we
have emphasized justice over procedural technicalities” when applying the good
cause standard. Anna H. Cardone Revocable Trust v. Cardone, 160 N.H. 521,
525 (2010). We will not disturb the trial court’s decision on a request to strike
a default unless the trial court erred as a matter of law or unsustainably
exercised its discretion. See Brito v. Ryan, 151 N.H. 635, 637 (2005).

In this case, the trial court entered default in favor of the plaintiff based
upon the defendant’s failure to attend the pretrial hearing on February 28,
2023. On March 1, the defendant moved to reconsider, asserting, with the
express “understand[ing] that making a false statement in this pleading may
subject [the defendant] to criminal penalties,” see Dist. Div. R. 1.8(B), that on
February 21, 2023, he “received last minute military orders . . . to report out of
the state for military training starting February 26, 2023 through March 10,
2023.” The defendant additionally submitted under seal, as “proof [of his]
inability to appear on the scheduled date,” a copy of his military orders, which
demonstrated that on February 21, 2023, the defendant was ordered to report
to a military base in another state with a duty date of February 26, 2023, and
warned that “failure to comply with this order violates UCMJ.” (Capitalization
omitted.) The trial court nevertheless denied the motion to reconsider without
providing any reasons for denying it. Under the circumstances, we conclude
that the defendant necessarily established good cause to strike the default, and
that the trial court unsustainably exercised its discretion by denying his
motion to reconsider. Accordingly, we reverse the denial of the defendant’s
motion to reconsider, and remand for further proceedings consistent with this
order.

Reversed and remanded.

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

Timothy A. Gudas,
Clerk

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