Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tarnawa v. Goode

Supreme Court of New Hampshire

July 2, 2019

EVELYN TARNAWA
v.
RICHARD GOODE

          Argued: May 8, 2019

          Hillsborough-northern judicial district

          Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the plaintiff.

          Nixon, Vogelman, Slawsky & Simoneau, P.A., of Manchester (Leslie C. Nixon on the brief and orally), for the defendant.

          HICKS, J.

         The defendant, Richard Goode, appeals an order of the Superior Court (Messer, J.) granting a petition to partition real property in Manchester brought by the plaintiff, Evelyn Tarnawa. We affirm.

         The following facts were found by the trial court or are established by documents submitted to the trial court. The parties are siblings. They received joint title to the property at issue under the will of their mother (the decedent), who died in 2009. The defendant had been living on the property with the decedent prior to her death, and, after her death, chose to continue living there.

         In 2010, the plaintiff sent the defendant a proposed agreement purporting to set forth the defendant's rights and responsibilities with respect to the property while he continued to reside there. Although some back-and-forth discussions took place between the parties, the agreement was never executed, and no evidence of any other agreement regarding the property was presented to the trial court. The defendant claims to have made improvements to the property.

         Beginning in 2012, the defendant failed to pay the property taxes in full. The plaintiff did not learn of this failure until she was notified by the City of Manchester in 2016. By December 7, 2017, the amount owed for outstanding taxes, costs and interest was $33, 803.13, with interest accruing at $11.17 per day.

         In 2016, the plaintiff filed a petition for partition, requesting that the court order a sale of the property "and a division of the proceeds of the sale on an equitable basis, i.e. a deduction of all outstanding deficiencies from the Defendant's share of the proceeds." The defendant moved to dismiss for lack of subject matter jurisdiction. He also moved for summary judgment on the basis of res judicata and the decedent's intent to devise the property to the parties as joint tenants with rights of survivorship. The trial court denied those motions and granted the petition to partition. The court found that "[g]iven the small size of the parcel and the residence already constructed thereon," the property "cannot be divided without causing great prejudice or inconvenience to the parties." Thus, the court directed that the property be sold and the proceeds divided between the parties as set forth in the order.

         The defendant moved for reconsideration and to stay the order, which the trial court denied. This appeal followed.

We will uphold a trial court's equitable order unless it constitutes an unsustainable exercise of discretion. In doing so, the question is whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. The party asserting that a trial court order is unsustainable must demonstrate that the ruling was unreasonable or untenable to the prejudice of his case. We will not disturb the findings of the trial court unless they lack evidentiary support or are legally erroneous. Indeed, our review of the trial court's decision is limited: we will not substitute our judgment for that of the trial court unless the findings and rulings are unsupported by the evidence or are erroneous as a matter of law. Nor will we reweigh the equities.

Hayes, Tr. v. Connolly, Tr., 172 N.H.____, ____ (decided March 29, 2019) (slip. op. at 4) (quotations and citations omitted).

         On appeal, the defendant argues that the trial court erred in failing to dismiss this action because: (1) the court lacked subject matter jurisdiction; (2) the action is barred by res judicata; (3) the claim is really one for breach of contract; and (4) the action is barred by laches. The defendant further argues that if we reject his subject matter jurisdiction and res judicata arguments, we should nevertheless reverse and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.