Oak Brook Condominium Owners' Association v. Gerard Dufresne ( 2023 )

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
2