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Ibey v. Porter

Supreme Court of New Hampshire

July 29, 2008

Karen Ibey & a.
v.
Dennis Porter d/b/a Porter Concrete,

UNPUBLISHED OPINION

The defendant, Dennis Porter d/b/a Porter Concrete, appeals a district court order denying his request for a jury trial and granting motions for summary judgment and entry of judgment filed by the plaintiffs, Karen and Gerry Ibey. The defendant argues that the trial court erred by: (1) denying him an extension of time to respond to the plaintiffs' summary judgment motion; (2) failing to grant him a hearing on the plaintiffs' ex parte attachment; (3) granting summary judgment for the plaintiffs in retaliation for his counsel's assertion of a right to a jury trial; (4) failing to transfer the case to the superior court for a jury trial; and (5) granting summary judgment based upon hearsay. We affirm in part, vacate in part and remand.

The defendant first argues that the trial court erred in denying his request for an extension of time to respond to the plaintiffs' summary judgment motion. The trial court has broad discretion in managing the proceedings before it. In the Matter of Conner & Conner, 156 N.H. 250, 252 (2007). We review a trial court's rulings in this area under an unsustainable exercise of discretion standard. Id. To establish that the court erred under this standard, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. At the August 28, 2007 hearing, the trial court, before issuing an order on the plaintiffs' summary judgment motion – or on the defendant's unopposed, well-supported motion for an extension of time to respond to the plaintiffs' motion – instructed the plaintiffs to call their first witness for a hearing on the merits. The defendant's attorney objected, asserting that his client had a right to a jury trial. Then, after advising the parties that it would take a brief recess to review the defendant's claimed right to a jury trial, the court announced that the plaintiffs' summary judgment motion would be granted. On these facts, we conclude that the trial court unsustainably exercised its discretion in the management of the proceedings before it. The court's decision to grant the plaintiffs' summary judgment motion at that stage in the proceedings was clearly untenable or unreasonable to the prejudice of the defendant's case because it unreasonably deprived the defendant of an opportunity to assert a defense. Accordingly, we vacate the court's order granting the plaintiffs' motions for summary judgment and entry of judgment and remand for further proceedings consistent with this order. Upon remand, the trial court shall provide the defendant with a reasonable period of time to file an objection to the plaintiffs' summary judgment motion.

The defendant next argues that the trial court erred by failing to grant him a hearing on the plaintiffs' ex parte attachment. We agree. RSA 511-A:8 provides that in all cases of attachment made ex parte, a hearing shall be granted as promptly as possible upon the subsequent request of a defendant. See RSA 511-A:8, V (1997). The defendant filed his objection to the attachment on June 12, 2007, yet no hearing on the attachment was scheduled at any time thereafter. Upon remand, the court shall schedule a hearing on the defendant's objection to the plaintiffs' ex parte attachment.

The defendant also argues that the trial court erred by failing to transfer the case to the superior court for a jury trial. We disagree. Assuming, without deciding, that checking a box on his appearance form satisfied the requirement of a written request for a jury trial, see RSA 502-A:15, I (1997), we find no error because the defendant failed to make his request within seven days of the return date. See id. Moreover, even if we assume, without deciding, that the defendant sought an extension of time to request a jury trial, the trial court acted within its discretion in denying the defendant's request. Accordingly, we affirm the trial court's decision denying the defendant's request for a jury trial.

In view of our decision, we need not address the defendant's remaining arguments.

Affirmed in part; vacated in part; and ...


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