Dexter Cronin v. Town of Conway

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2015-0643, Dexter Cronin v. Town of Conway,
the court on April 1, 2016, 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 appellant, Dexter Cronin (owner), appeals an order of the Superior
Court (Temple, J.) upholding decisions of the Circuit Court (Albee, J.) to
summarily enforce an order issued by the appellee, the Town of Conway (town),
to repair or remove a hazardous building (town order). See RSA 155-B:7 (2014).
We construe the owner’s brief to argue that the town order was defective because
it failed to “specify[ ] the necessary repairs” that he was required to make, RSA
155-B:3 (2014), and that the circuit court erroneously relied upon evidence of
issues not identified in the town order to cure the defect. The town counters that
the owner has waived these arguments.
RSA chapter 155-B (2014) empowers a town to address hazardous
buildings within it. It authorizes a town to serve an order upon the owner of a
hazardous building requiring the owner to repair or remove the building. RSA
155-B:4. The order must “state, in writing, the grounds therefor, specifying the
necessary repairs, if any.” RSA 155-B:3. It must also inform the recipient that “a
motion for summary enforcement of the order will be made . . . unless corrective
action is taken, or unless an answer is filed” within 20 days. Id. A person served
with such an order has 20 days in which to serve an answer “specifically denying
such facts in the order as are in dispute.” RSA 155-B:6. If the owner fails to
serve an answer, the town “may move the court for the enforcement of the order,”
and “the court may, upon the presentation of such evidence as it may require,
affirm or modify the order and enter judgment accordingly.” RSA 155-B:7.
In this case, the town issued an order pursuant to RSA 155-B:2. The
superior court found, and the owner does not contest, that he received the town
order and did not answer it. The town then moved in the circuit court for
summary enforcement under RSA 155-B:7, seeking to remove a portion of the
owner’s building. Although the owner now argues that he completed the repairs
required by the town order, the superior court found, and the owner does not
contest, that he did not object to the motion for summary enforcement, which the
circuit court granted. The owner did not appeal that order.
Approximately four months later, the town moved to amend the summary
enforcement order, to allow it to remove the entire building. The superior court
found, and the owner does not contest, that he did not object to that motion,
which the circuit court granted. The owner then appealed to superior court, see
RSA 155-B:15, which remanded the matter to the circuit court for an evidentiary
hearing, which the parties requested. On June 25, 2014, the circuit court held
an evidentiary hearing and upheld the town order and both the prior summary
enforcement orders. The owner has not provided transcripts of either the
superior court or the circuit court hearing.
The owner again appealed to the superior court, which affirmed the circuit
court, finding that its “orders are all supported by the evidence produced at the
hearing held on June 25, 2014” and that “[t]here is not any legal or factual basis
upon which to vacate [those] orders.” We review the superior court’s decision to
determine whether it was erroneous as a matter of law or unsupported by the
evidence. See Town of Hudson v. Baker, 133 N.H. 750, 752 (1990).
On this record, we agree with the town that the owner has waived his
argument that the town order was facially defective. Issues must be raised at the
earliest possible time because trial forums should have a full opportunity to come
to sound conclusions and to correct claimed errors in the first instance.
O’Hearne v. McClammer, 163 N.H. 430, 438 (2012). Parties are not entitled to
take later advantage of error they could have discovered or chose to ignore at the
very moment when it could have been corrected. In the Matter of Mannion &
Mannion, 155 N.H. 52, 54 (2007).
In this case, the owner received express, written notice that, if he failed to
answer the town order, the town would seek to summarily enforce it. Under RSA
155-B:7, the circuit court’s decision enforcing a town order becomes a judgment.
Here, the owner failed to answer the town order, to object to the motion for
summary enforcement, to move for reconsideration, or to appeal the original
summary enforcement order. Cf. LaMontagne Builders v. Bowman Brook
Purchase Group, 150 N.H. 270, 274 (2003) (holding defendants’ argument that
they lacked notice opposing party was seeking damages and attorney’s fees not
preserved when defendants failed to raise it when opposing party submitted its
findings of fact and rulings of law requesting damages and attorney’s fees and
failed to move for reconsideration after court issued order awarding same). Thus,
the owner cannot now challenge the facial validity of the town order. Cf. In the
Matter of Birmingham & Birmingham, 154 N.H. 51, 56 (2006) (holding
respondent precluded from challenging default judgment and final order when he
failed to timely challenge them). The circuit court’s judgment enforcing the town
order was premised upon its sufficiency. Because the owner did not challenge
the town order or the circuit court’s judgment in a timely fashion, he is precluded
from doing so now.
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Furthermore, the owner has failed to provide transcripts from the superior
court hearing or the circuit court evidentiary hearing. It is a long-standing rule
that parties may not have judicial review of issues they did not raise in the trial
court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). It is the
appealing party’s burden on appeal to provide a record that is sufficient to decide
the issues he is raising and to demonstrate that he raised those issues in the
trial court. Id.; see Sup. Ct. R. 13(3), 15(3) (if appealing party intends to argue
that a ruling is unsupported by or contrary to the evidence, the party shall
include a transcript of all evidence relevant to such ruling). Absent a transcript,
we assume the evidence was sufficient to support the result reached by the trial
court, Bean, 151 N.H. at 250, and review its order for errors of law only, see
Atwood v. Owens, 142 N.H. 396, 397 (1997). These rules are not relaxed for self-
represented parties. See Birmingham, 154 N.H. at 56-57. Accordingly, we
assume that the superior court’s order affirming the circuit court’s summary
enforcement order was supported by the evidence, and we find no error of law.
Likewise, the owner has waived his argument that, at the June 25, 2014,
evidentiary hearing, the town “changed the factual substance . . . for the
hazardous and dilapidated designation” and, as a result, he “was never allowed
an opportunity to repair the issues presented” at the hearing. Because the owner
has not provided a transcript of that evidentiary hearing, we are unable to
evaluate his assertions regarding the hearing. Nor can we determine from the
record before us whether he made this argument to the trial court. See Bean,
151 N.H. at 250. Accordingly, we decline to address it. See State v. Blackmer,
149 N.H. 47, 48 (2003).
Affirmed.
Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.
Eileen Fox,
Clerk
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