Farris v. Daigle , 139 N.H. 453 ( 1995 )

Memorandum Opinion

BATCHELDER, J.

The plaintiff, John Farris, appeals the decision of the Superior Court {Goode, J.) denying his request that court costs and statutory interest should be added to an arbitrators’ award. He argues that the trial court erred in refusing to consider an exact copy of a letter transmitted and reproduced via facsimile (fax) purportedly signed by the defendant’s then-counsel agreeing to payment of statutory interest and costs “as if the case were tried to a jury.” We reverse and remand.

The parties agreed, in the original proceeding, to submit to arbitration their dispute over flooding damage to the plaintiffs land. Although the defendant, Mark Daigle, had previously been represented by counsel, he appeared pro se at the arbitration hearing. At the hearing, plaintiffs counsel advised the arbitrators of a prior agreement that interest and costs would be added to the arbitrators’ award as if the case had been tried to a jury. Although counsel for the other defendants in the arbitration, who are not part of this appeal, agreed that “[a]s to costs, everything that [plaintiffs counsel] said is correct,” the record is devoid of comment by the defendant either accepting or disputing plaintiffs counsel’s representation. The defendant’s only objection at the arbitration hearing related to his share of the costs of the arbitrators.

The arbitrators found for the plaintiff. On April 8, 1993, the plaintiff petitioned the superior court to confirm the arbitration award, including interest and statutory costs as he had represented at the arbitration hearing. The defendant did not object. On April 13, 1993, the Superior Court (Sullivan, J.) confirmed the arbitration award and entered judgment for the plaintiff, including interest and costs. By letter dated April 27, 1993, the defendant objected, stating that “there was no prior agreement by myself or any party on my behalf relating to [interest and court costs].” This letter did not rise to the level of a motion for reconsideration nor, if it did, has the defendant shown that it was filed in a timely manner. See Super. Ct. R. 59-A. One does not litigate by correspondence but according to established rules. See, e.g., Super. Ct. R. 4 (no objection contained in a letter shall be acted on by the court). For reasons that are not apparent from the record before us, however, the superior court assigned the matter raised in the letter for hearing. We can only speculate that this was done in deference to the pro se defendant.

At the hearing, the defendant was once again represented by counsel, albeit different from his counsel at the initiation of the proceedings. The Superior Court (Goode, J.) reviewed the record, including an unsigned letter confirming the agreement to impose interest and costs, and ruled that the defendant had not agreed to such payment. The plaintiff filed a timely motion for reconsideration of the court’s ruling and attached a fax of the same letter showing the signature of the defendant’s then-counsel. The Superior Court (Goode, J.) ruled that the fax was “new evidence” which it refused to consider and, consequently, affirmed its original ruling excluding interest and costs. The plaintiff appealed.

Whether to receive further evidence on a motion for reconsideration rests in the sound discretion of the trial court. See Brown v. John Hancock Mut. Life Ins. Co., 131 N.H. 485, 492, 558 A.2d 822, 826 (1989). Here, on the isolated facts of this case, the trial court abused that discretion.

If there was in fact any “new evidence” in this case, it was not the fax but the defendant’s April 27 letter denying any agreement to pay interest and costs. Only after the trial court confirmed the arbitration award did the defendant respond by letter denying for the first time the agreement to pay interest and costs, thereby catching the plaintiff by surprise.

A motion for reconsideration is designed to bring to the trial court’s attention “points of law or fact that the Court has overlooked or misapprehended.” Super. Ct. R. 59-A (1). In its ruling that no agreement to pay interest and costs existed, the trial court explicitly relied on the fact that the letter regarding the inclusion of interest and costs contained “[n]o confirming signatures.” The fax submitted on reconsideration, however, cast doubt on the very basis for the trial court’s ruling. On these facts, and in light of the unusual procedures followed in this case, the proper course would have been to determine the validity of the fax and, having done so, amend the order denying the addition of interest and costs if required. We reverse and remand for a determination of the validity of the fax document.

Reversed and remanded.

HORTON, J., did not sit; Thayer, J., dissented; the others concurred.