Sanford A. Woodmansee v. Robert H. Walther ( 2018 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2016-0634, Sanford A. Woodmansee v. Robert
H. Walther, the court on January 22, 2018, issued the following
order:
Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.
The plaintiff, Sanford A. Woodmansee, appeals an order of the Superior
Court (Delker, J.) denying his motion for injunctive relief and dismissing his
request for damages for the loss of his personal property against the defendant,
Robert H. Walther, following a hearing on the merits. We construe his brief to
argue that the trial court erred by: (1) finding that he had failed to allege facts
establishing the defendant’s personal liability; (2) applying RSA 540-A:3, VII
(Supp. 2016); (3) not allowing him to amend his complaint, see RSA 514:9 (2007);
(4) not finding that the writ of possession issued to the Federal National Mortgage
Association (Fannie Mae) had “expired” prior to his eviction and the removal of
his personal property; (5) violating his due process rights; and (6) violating his
right to engage in discovery.
We first address whether the plaintiff established that the defendant was
personally liable to him. We review the trial court’s application of law to facts de
novo and defer to its findings of fact, when they are supported by evidence in the
record. Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 33
(2007).
At the hearing on the merits, the defendant stated that he was employed
by Berkshire Hathaway Home Services, the company that Fannie Mae had hired
to sell the property owned by the plaintiff before its foreclosure. The defendant
represented that Fannie Mae authorized him to allow the plaintiff to enter the
property to retrieve his personal property, and for no other purpose. The
defendant opined that Fannie Mae had “afforded [the plaintiff] an extraordinary
amount of time” to remove his personal property, but that the plaintiff “seem[ed]
to be just dragging the process along.” He further stated that Fannie Mae had
contracted directly with another vendor to remove any personal property
remaining on the real estate and that he had no authority to remove the
plaintiff’s personal property.
The plaintiff argues on appeal that the defendant, in an affidavit, “used the
first-person pronoun ‘I’ . . . to describe all of the material acts that he performed”
and did not aver “that any of the acts . . . were the acts . . . of Fannie Mae.” In
contrast, in the trial court, he stated that the defendant “wholly represents
himself [in the affidavit] as a representative for Fannie Mae.” To the extent that
he argues that the defendant acted “outside [his] scope of representation of
Fannie Mae,” he does not develop this argument. See State v. Blackmer, 149
N.H. 47, 49 (2003). Further, we fail to see how the issue of whether the
defendant acted within or outside the scope of his representation of Fannie Mae
is material to the question of his personal liability. See Blouin v. Sanborn, 155
N.H. 704, 706 (2007) (stating that agent may be liable for his own torts to a third
person). Moreover, the plaintiff points to no evidence adduced at the hearing
establishing the defendant’s personal liability.
Under these circumstances, we conclude that the trial court’s ruling that
the defendant was not personally liable to the plaintiff is neither erroneous as a
matter of law nor unsupported by the record. See Blagbrough, 155 N.H. at 33.
In light of this conclusion, we need not address whether the trial court correctly
applied RSA 540-A:3, VII. But compare Hill v. Dobrowolski, 125 N.H. 572, 576
(1984), with Fulton v. Allard’s Moving & Storage, 139 N.H. 582, 584 (1995).
We next address whether the trial court erred by not allowing the plaintiff
to amend his complaint. The plaintiff relies upon ERG, Inc. v. Barnes, 137 N.H.
186 (1993), which addressed amendment of a complaint following a dismissal for
failure to state a cause of action. ERG, 137 N.H. at 189; Pesaturo v. Kinne, 161
N.H. 550, 556 (2011). However, in this case, the trial court dismissed the case
following an evidentiary hearing. See Renovest Co. v. Hodges Development Corp.,
135 N.H. 72, 76-78 (1991) (distinguishing dismissal based upon prima facie
standard, like dismissal for failure to state a claim, from dismissal following a
bench trial based upon plaintiff’s failure to meet the burden of proof). Because
the trial court dismissed the plaintiff’s claim for damages based upon findings of
fact following an evidentiary hearing, and not based upon the sufficiency of the
pleadings alone, we conclude that ERG did not apply. See id. at 77.
Moreover, to the extent the plaintiff argues that RSA 514:9 entitled him to
amend his complaint, the record does not reflect that he provided his proposed
amendments to the trial court. Under these circumstances, we cannot conclude
that the trial court unsustainably exercised its discretion by denying his request
to amend his complaint in his motion to reconsider. See Lamprey v. Britton
Constr., 163 N.H. 252, 261 (2012) (stating trial court decision on motion to
amend reviewed for unsustainable exercise of discretion); Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004) (stating appealing party has burden to supply
record sufficient to decide issues on appeal).
Finally, to the extent that the plaintiff argues that the trial court erred by
not allowing him to engage in discovery, that his due process rights were violated,
or that Fannie Mae’s writ of possession had “expired,” the record does not reflect
that he raised these issues in the trial court. See Bean, 151 N.H. at 250; see also
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Kurowski v. Town of Chester, 170 N.H. ___, ___ (decided Sept. 21, 2017) (stating
pretrial discovery not designed to afford plaintiff opportunity to cure complaint).
Any remaining issues raised by the plaintiff in his brief are either not
sufficiently developed, see Blackmer, 149 N.H. at 49, or otherwise do not warrant
further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).
Affirmed.
Dalianis, C.J., and Hicks, Lynn, Bassett, and Hantz Marconi, JJ.,
concurred.
Eileen Fox,
Clerk
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