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Delisle v. Levesque

Supreme Court of New Hampshire

June 13, 2008

Cathy J. Delisle & a.
v.
Leo J. Levesque, Jr. & a.

UNPUBLISHED OPINION

The defendant, Leo Levesque, Jr., appeals an order of the trial court entering a default judgment against him. He argues that the trial court: (1) unsustainably exercised its discretion in entering the default and then denying his motion to set it aside; and (2) erred in finding that there had been multiple defaults in this case. The plaintiffs, Cathy J. Delisle and William Mark Looney, argue that the appeal should be dismissed as moot because the funds at issue have already been transferred. We affirm.

Generally, a matter is moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead. In re Juvenile 2005-212, 154 N.H. 763, 765 (2007). In this case, the plaintiffs filed a petition to set aside a fraudulent conveyance which they alleged occurred when the defendant transferred his funds into an annuity account. The petition sought to set aside the transfer and to, inter alia, have the funds paid into a superior court account until claims in a related case involving the plaintiffs and the defendant were resolved. That the funds are now in the possession of the superior court does not resolve the ultimate issue of whether they were fraudulently transferred. Accordingly, we decline to dismiss this appeal as moot.

We turn then to the defendant's arguments. Absent an error of law or unsustainable exercise of discretion, we will affirm a trial court's decision denying a motion to vacate a default judgment. In the Matter of Birmingham & Birmingham, 154 N.H. 51, 55 (2006). The imposition of sanctions is a matter left largely to the discretion of the trial court. Cole v. Hobson, 143 N.H. 14, 15 (1998). In this case, the trial court granted the plaintiffs' motion for entry of final decree when the defendant failed to appear for a June 25 structuring conference. Defendant's counsel argues that the trial court erred in entering the default because he was involved in a trial in Massachusetts. At oral argument, he conceded that he could have alerted the trial court to the possible conflict with his Massachusetts case a week before the June 25 hearing but failed to do so. It is undisputed that the defendant had been previously defaulted and sanctioned for the failure to file an answer in this case. He appears to argue that because the default was stricken, the earlier event was a technical violation. It is noteworthy, however, that the trial court also awarded the plaintiffs attorney's fees as a sanction for the earlier default.

In entering the June 25 default, the trial court noted that this was not the defendant's first violation and, in addition to failing to appear, he had also failed to file a summary statement that was due at least ten days prior to the June 25 hearing. The trial court also noted that the defendant had failed to file a motion to continue the June 25 hearing. We note that this is not a case where the defendant was defaulted after one violation of court rules; rather, he failed to appear for a hearing and, on more than one occasion, failed to comply with court rules.

The defendant also argues that the trial court erred in considering defaults in the related negligence case. We find no evidence in the record that the defendant ever raised this alleged error in the trial court; we therefore conclude that it has not been preserved for our review. See Starr v. Governor, 151 N.H. 608, 611 (2004).

Affirmed.

DALIANIS, DUGGAN and GALWAY, JJ., ...


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