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Surette v. Walters

Supreme Court of New Hampshire

June 30, 2008

Eileen Surette
v.
William J. Walters, Jr. & a.

UNPUBLISHED OPINION

The respondents, William J. Walters, Jr. and Charles Jewell, Jr., appeal a decision of the trial court denying their motion to reopen. They argue that the trial court erred in denying their motion to reopen subsequent to submission of the case following trial to permit the entry of a document that modified a stipulation upon which the trial court allegedly relied in reaching its decision. We affirm.

The respondents argue that a trial court's decision on a motion to reopen should be reviewed under our unsustainable exercise of discretion standard. See State v. Comtois, 122 N.H. 1173, 1175 (1982); State v. Lambert, 147 N.H. 295, 296 (2003) (to establish that trial court's decision is unsustainable defendant must demonstrate that ruling was clearly untenable or unreasonable to the prejudice of his case).

In prior cases where we have been asked to review a trial court's decision on a motion to reopen, we have considered whether the moving party had demonstrated that the evidence was previously unavailable or whether he had been prevented from presenting it by fraud or deception. See McAlpin v. McAlpin, 129 N.H. 737, 743 (1987).

The record before us in this case is limited; it does not include a copy of the underlying petition for declaratory judgment nor a transcript of the trial. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (burden on appealing party to provide this court with a record sufficient to decide issues on appeal); see also Sup. Ct. R. 13. Based upon the limited record before us, it appears that the ultimate issue before the trial court was whether the petitioner was entitled to an interest in land held by the respondents. The respondents' motion to reopen sought to admit an amendment to a permanent stipulation.

On appeal, the respondents argue that the amendment demonstrates that a finding in the trial court's order was incorrect; they contend this error provides sufficient proof that the court's ruling on their motion to reopen was untenable. Based upon the limited record before us, we cannot conclude that the trial court unsustainably exercised its discretion in finding that the respondents had not established good cause to reopen the case.

The respondents concede that the amendment was available in the superior court files, where their counsel discovered it after the close of trial. Moreover, the amendment does not appear dispositive of the issue before the trial court; the trial court cited other independent evidence of its conclusions concerning the intent of the original grantors, including the testimony of one of the grantors at trial.

Accordingly, we affirm. Cf. Bricker v. Sceva Speare Hosp., 115 N.H. 709, 711 (1975) ("To reopen a case just because a party persists in asserting and attempting to prove his version of the dispute was the truth and that of the opponent false would keep the dispute going without end.").

Affirmed.

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


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