Oak Brook Condominium Owners' Association v. Gerard Dufresne

• Court: Supreme Court of New Hampshire
• Decided: October 23, 2023
• Docket: 2023-0114
• Status: Published

Opinion

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0114, Oak Brook Condominium Owners' Association v. Gerard Dufresne, 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, Gerard Dufresne, appeals orders of the Circuit Court (Chabot, J.): (1) entering final default in favor of the plaintiff, Oak Brook Condominium Owners’ Association, see Dist. Div. R. 3.42(b), (c); (2) denying the defendant’s motion to set aside the final default; and (3) granting the plaintiff’s motion for the entry of final judgment, see Dist. Div. R. 3.42(d), (e). We affirm.

Documents in the record provided on appeal reveal that on December 27, 2022, the trial court entered final default in favor of the plaintiff on its complaint seeking to collect assessments, fees, and costs under the terms of recorded condominium instruments. On January 23, 2023, the trial court denied the defendant’s motion to set aside the final default “[f]or the reasons set forth in Plaintiff’s Objection.” We note that the portions of the trial court record provided by the defendant on appeal do not include the trial court’s December 27, 2022 order granting final default, the defendant’s motion to set aside the final default, or the plaintiff’s objection to the motion to set aside. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (stating that appealing party bears burden to provide a record on appeal that is sufficient to decide the questions raised); see also Estate of Day v. Hanover Ins. Co., 162 N.H. 415, 422 (2011) (applying Bean to appealing parties’ failure to provide relevant pleadings relied upon by the trial court).

On February 23, 2023, the defendant filed a petition for original jurisdiction with this court, see Sup. Ct. R. 11, seeking to challenge the January 23 denial of his motion to set aside the final default. While the petition was pending, the plaintiff filed a motion for the entry of final judgment in the trial court. See Dist. Div. R. 3.42(d), (e). We note that, notwithstanding the petition for original jurisdiction, because the order denying the motion to set aside the default was not a “final decision on the merits,” the trial court had jurisdiction to rule on the motion for final judgment. See Gaucher v. Waterhouse, 175 N.H. 291, 299 (2022) (stating that entry of default judgment was interlocutory, and that “final judgment” was not entered until trial court subsequently determined damages); Jesurum v. WBTSCC Ltd. P’ship, 169 N.H. 469, 482 (2016) (holding that when appellant filed appeal while a timely motion for reconsideration was pending in the trial court, the appeal was premature and did not deprive the trial court of jurisdiction to rule upon the pending motion); Cole v. Hobson, 143 N.H. 14, 16 (1998) (stating that the entry of default is not a final judgment on the merits). On March 28, 2023, the trial court granted the motion for final judgment, and thereafter, we denied the petition for original jurisdiction without prejudice to refiling the appeal pursuant to Rule 7. The defendant then timely filed the present appeal.

We will not overturn the trial court’s decision not to set aside the final default unless it erred as a matter of law or engaged in an unsustainable exercise of discretion. See Brito v. Ryan, 151 N.H. 635, 637 (2005). As the appealing party, it is the defendant’s burden to establish that the trial court erred, to fully develop legal arguments why the trial court erred, and to provide those relevant portions of the trial court record that demonstrate the trial court’s error. See Estate of Day, 162 N.H. at 422; Gallo v. Traina, 166 N.H. 737, 740 (2014); State v. Blackmer, 149 N.H. 47, 49 (2003). Based upon our review of the written arguments, the relevant law, and the record on appeal, which does not include the December 2022 order entering final default, any motion filed by the plaintiff for the entry of final default, the defendant’s motion to set aside the final default, or the plaintiff’s objection to the motion to set aside, we are not persuaded that the trial court erred by entering final default, denying the motion to set aside the default, or entering final judgment. The defendant’s remaining arguments concern the merits of whether the plaintiff was entitled to the assessments, fees, and costs awarded to it. Because we are not persuaded that the trial court erred by entering final default, denying the motion to set aside the final default, or entering final judgment under District Division Rule 3.42(e), we cannot address these arguments.

The plaintiff’s request in its memorandum of law for an award of attorney’s fees and costs incurred on appeal is granted pursuant to RSA 356- B:15, II (2022), subject to the following requirements. The plaintiff shall file a motion for taxation of costs and attorney’s fees that is consistent with Rule 23 and is supported by affidavit of counsel establishing both the amount and reasonableness of the attorney’s fees and costs it incurred in defending this appeal. Failure to comply with Rule 23 or this order shall be deemed a waiver of an award of attorney’s fees and costs incurred on appeal.

Affirmed.

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

Timothy A. Gudas, Clerk