THE STATE OF NEW HAMPSHIRE SUPREME COURT. David Eldridge. The Rolling Green at Whip-Poor-Will Condominium Owners Association. Case No.

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT David Eldridge v. The Rolling Green at Whip-Poor-Will Condominium Owners Association Case No BRIEF FOR DAVID ELDRIDGE APPELLANT Benjamin T. King, (NH Bar #12888) DOUGLAS, LEONARD & GARVEY, P.C. 14 South Street, Suite 5 Concord, NH (603) ORAL ARGUMENT BY: Benjamin T. King, Esq.

2 TABLE OF CONTENTS QUESTIONS PRESENTED... i CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR REGULATIONS INVOLVED IN THE CASE... 2 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 6 SUMMARY OF ARGUMENT... 8 ARGUMENT... 9 CONCLUSION REQUEST FOR ORAL ARGUMENT CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Cases Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) Ameristar Airways, Inc. v. Admin. Review Bd., 650 F.3d 562 (5 th Cir. 2011) Carignan v. N.H. Int l Speedway, 151 N.H. 409 (2004) Durocher s Ice Cream Co. v. Perice Constr. Co., 106 N.H. 293 (1965) Iannelli v. Burger King Corp., 145 N.H. 190 (2000)... 10, 13 Lillie-Putz Trust v. Downeast Energy Corp., 160 N.H. 716 (2010) Murray v. Developmental Servs. of Sullivan County, 149 N.H. 264 (2003) Perez v. Volvo Car Corp., 247 F.3d 303 (1 st Cir. 2001) Roberts v. Royal Atl. Corp., 542 F.3d 363 (2d Cir. 2008) Statutes RSA 354-A: RSA 354-A:21-a... 4 RSA 491:8-a... 3, 10 ii

4 QUESTIONS PRESENTED 1. Whether the trial court committed an unsustainable exercise of its discretion by denying the plaintiff s motion for reconsideration of its Order granting the defendant summary judgment on the plaintiff s RSA 354-A claim, alleging that the defendant discriminated against him on the basis of his disability by repairing other walkways within the residential complex but failing and refusing to repair his walkway, where: a.) the defendant moved for summary judgment before the close of discovery; b.) the defendant persuaded the Court to enter summary judgment based on factual averments that the defendant lacked the authority or legal ability to repair the walkway; c.) a deposition of the Senior Property Manager taken after the filing of the summary judgment papers but before the close of discovery, revealed that the defendant in fact had the authority and ability to repair the walkway, revealing that the defendant had identified three (3) walkways needing repairs in or around September of 2009 (including the plaintiff s walkway), that the defendant had decided to repair the other walkways but not to repair the plaintiff s walkway, and that the defendant had ordered and paid for the repairs. Plaintiff s Motion for Reconsideration. 2. Whether the trial court committed an unsustainable exercise of its discretion by declining to consider new evidence in ruling on the plaintiff s Motion for Reconsideration, thereby effectively truncating the discovery period allowed by the Court in the Structuring Conference Order, where the plaintiff obtained the new evidence through a deposition taken before the close of discovery but after the filing of the summary judgment motion and objection, and where the evidence refuted the factual averments relied upon the Court in granting summary judgment, demonstrating the defendant in fact had the legal authority and ability to repair walkways within the complex by showing that: a.) the defendant had identified the walkways within the complex needing repairs; b.) the defendant had decided to repair two (2) walkways but not to repair the 1

5 plaintiff s walkway; and c.) the defendant had ordered and paid for the walkway repairs. Plaintiff s Motion for Reconsideration. CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR REGULATIONS INVOLVED IN THE CASE RSA 354-A:12 RSA 354-A:21, II (d) RSA 354-A:21-a RSA 491:8-a STATEMENT OF THE CASE The appellant David Eldridge filed a Charge of Discrimination with the New Hampshire Commission for Human Rights (the Commission) on June 3, Appendix at p. 1. Mr. Eldridge alleged discrimination on the basis of physical disability against his condominium association, the Rolling Green at Whip-Poor-Will Condominium Association. Id. Mr. Eldridge specifically invoked the continuing action theory, with respect to the dates during which the discrimination occurred, in executing the Charge of Discrimination. Id. The Commission proceeded to docket Mr. Eldridge s Charge (In the Matter of: David Eldridge v. Rolling Green at Whip-Poor-Will Condominium Association, Commission Case Number: HD ) and conduct an investigation. The Human Rights Commission found Probable Cause to credit Mr. Eldridge s allegations of disability discrimination on February 18, Id. at p. 8. The Commission s Probable Cause finding was in part based on a February 13, 2013, Investigative Report, wherein the Commission Investigator, Investigator Hutchison, found that the respondent 1 Mr. Eldridge signed the Charge of Discrimination on April 14, 2010, but the Commission did not receive and docket the Charge until June 3, Appendix at p. 1. 2

6 Condominium Association had provided knowingly false and misleading testimony to the Commission which complicated the investigation and added to the time it took for the Commission to render its investigative report. Id. at p. 10. After the Commission found Probable Cause, the Commission proceeded to schedule a conciliation and prehearing conference for May 7, 2013, and a public hearing for June 6, Id. at pp The Condominium Association proceeded to exercise its statutory right pursuant to RSA 354-A:21-a to remove Mr. Eldridge s Charge to the Hillsborough County Superior Court, Southern District, for jury trial. The Condominium Association filed its Notice of Transfer to Superior Court on or about April 17, Id. at pp The Condominium Association no sooner removed the case from the Commission to Court than the respondent filed a Motion to Dismiss. Id. at p. 11. The Condominium Association advanced three (3) arguments in support of dismissal: (1) that the Superior Court somehow lacked jurisdiction because the Commission had not completed its investigation within 24 months after the filing date of Mr. Eldridge s Charge (Id. at p. 13); (2) that Mr. Eldridge s claims were somehow untimely because he had not filed the action in Superior Court within three (3) years of the alleged unlawful practice (Id. at p. 13); and (3) that the investigating commissioner s report was factually incorrect and does not support the conclusions. Id. at p. 14. The trial court denied the Motion to Dismiss by Order dated June 10, 2013, holding that: (1) dismissing the plaintiff s case for the Commission s failure to complete its investigation within the statutorily prescribed time limit of 24 months would be improper because the statutory time limit is not jurisdictional, because dismissing the complaint as a result of the Commission s delay in reaching adjudication or closing the case does not comport with the 3

7 purpose of the statute in eliminating and preventing discrimination, and because the defendant had not demonstrated any prejudice; (2) dismissing the case because the plaintiff had not filed a Superior Court action within three (3) years would be improper because the plaintiff was not required to remove the case to Superior Court; and (3) the remaining argument constituted an improper attempt to appeal a Probable Cause finding. Id. at pp The trial court issued a Structuring Conference/ADR Order on June 20, 2013, in which the Court set April 30, 2014, as the deadline for completion of discovery. Id. at p. 46. The Condominium Association filed a Motion for Summary Judgment dated February 7, Id. at p. 48. In pertinent part, the Condominium Association argued that it was entitled to summary judgment because it contended that the Petitioner brought this complaint against the wrong association, that the COA (Condominium Owners Association) had no legal authority to maintain, repair and replace the Townhouse Limited Common Area, and that only the Townhouse Association [was] responsible to accommodate his requests. Id. at p. 59. In support of the Motion, the COA submitted an Affidavit of Karen Giaquinto, a Director of The Rolling Green At Whip-Poor-Will Condominium Owners Association, in which Ms. Giaquinto made sworn statements that [t]he walkway is defined by the Condominium Instruments as Limited Common Area to the Townhouse Units and was not the responsibility of the COA to maintain, repair or replace, and further stating that the Rolling Green at Whip Poor Will Condominium Owner s Association (the COA ) is the sole Respondent named in this matter and is not responsible for maintenance, repair and replacement of the townhouse limited common areas of the Association. Id. at pp at 3, 9, and 10. Mr. Eldridge objected to the COA s summary judgment motion by Objection dated March 18, Id. at p

8 After the filing of the summary judgment papers but before the April 30, 2014, close of discovery, Mr. Eldridge deposed the Senior Property Manager for Harvard Management Solutions, Tracey Madden, pursuant to an April 16, 2014, Subpoena Duces Tecum. Id. at pp (selected pages submitted to the trial court as attachments to the Motion for Reconsideration). At all relevant times, the COA has contracted with Harvard Management to provide their management duties to the association. Id. at pp Ms. Madden s deposition testimony revealed that the COA s sworn statements, that it somehow lacked legal authority to repair or replace Mr. Eldridge s walkway, were disingenuous at best. Ms. Madden s sworn testimony, and documents she produced, proved that the COA actually controlled the walkway repairs at issue in the case. Ms. Madden acknowledged in her deposition that it was the COA that in September of 2009 identified three (3) walkways requiring repairs in the condominium property, one of which was the walkway leading into Mr. Eldridge s property. Id. at p Ms. Madden further produced COA Board of Director meeting minutes at her deposition demonstrating that the COA Board of Directors voted at its September 21, 2009, meeting to contract RW Craftsman to complete the work on the cement walkways at 36 and 41 Riviera as proposed, but not to authorize repairs to Mr. Eldridge s walkway leading into his residence at 31 Riviera. Id. at p The trial court granted the COA summary judgment by Order dated May 23, Id. at p The trial court based its decision on one factual finding: that the COA had no authority or legal ability to make the accommodation requested by the plaintiff involving repairs to the walkway leading into his home. Id. at p The trial court acknowledged its heavy reliance on Ms. Giaquinto s affidavit and quoted her statement that [t]he walkway is defined by the 5

9 Condominium Instruments as Limited Common Area to the Townhouse Units and was not the responsibility of the COA to maintain, repair or replace. Id. at p. 147 at n. 2 and p The appellant moved for reconsideration by pleading dated June 3, Id. at p In the reconsideration motion, the appellant supplied the trial court with deposition testimony from Ms. Madden, together with the documents she produced, demonstrating that the trial court s factual finding leading to its grant of summary judgment was wrong. The COA certainly had the authority to repair Ms. Eldridge s walkway because the COA had identified the three (3) walkways in the condominium complex that required repairs (Id. at pp. 152, 159, 162), the COA had selected two (2) of the three (3) walkways for repair (deciding to exclude only Mr. Eldridge s walkway) (Id. at p. 162), and the COA had voted to contract with RW Craftsman for the repairs (Id. at p. 162). The trial court, however, declined to consider the new deposition testimony and documents, even though the testimony and documents were obtained through discovery occurring before the close of discovery. Id. at p. 167 ( the Court will not consider new evidence when ruling on a Motion for Reconsideration. ). The trial court denied the motion for reconsideration by Order dated July 21, 2014, and this Appeal followed. STATEMENT OF FACTS Mr. Eldridge is a long-time resident and condominium owner at the Whip-Poor-Will Condominium Complex. Id. at p The Rolling Green at Whip-Poor-Will Condominium Owners Association (COA) is a governing entity with respect to the condominium complex. Id. Mr. Eldridge has several disabling impairments that affect his mobility. Id. at p Beginning in 2006, Mr. Eldridge complained to Tracey Madden about the condition of the walkway leading into his home, reporting that the walkway was so uneven and sinking that it had become difficult to traverse. Id. Ms. Madden is the Senior Property Manager for Harvard 6

10 Management Solutions, which since January of 2004 has contracted with the COA to manage the condominium complex. Id. at p By July 15, 2009, the walkway remained in disrepair. Senior Property Manager Madden assured Mr. Eldridge on this date that the walkway would be repaired. Id. at p On or before September 3, 2009, the COA identified three (3) walkways in the condominium complex that needed to be repaired. Id. at pp. 152, 159. One of the three walkways identified was the walkway leading into Mr. Eldridge s home. Id. at pp. 159, 162, 163 The COA Board of Directors met on September 21, 2009, and voted on repairs to the three (3) walkways identified for repair. Id. at p The relevant Board minutes produced by Ms. Madden read as follows: Cement Walkways: Jan Stapula motioned to contract RW Craftsman to complete the work on the cement walkways at 36 and 41 Riviera as proposed. The cement walk serving 31 Riviera is tabled for review in the spring with the 2010 budget. Rick Meier seconds. All were in favor. Id. By letter dated September 23, 2009, Ms. Madden wrote to Mr. Eldridge, advising him of the decision reached by the COA Board of Directors, writing, Due to budgetary constraints from the non-payment of condominium fees by unit owners at Rolling Green Condominium Association, the Board of Directors will include your walkway on a list for scheduling repairs when the funds become available. Id. at p The COA had the effrontery to represent to the trial court, through the sworn Affidavit of Karen Giaquinto, a Director of The Rolling Green At Whip-Poor-Will Condominium Association, that the walkways were somehow not the responsibility of the COA to maintain, repair or replace because the walkways were defined as Limited Common Area to the Townhouse Units. Id. at pp The evidence provided by Senior Property Manager Madden that the COA did assume the responsibility in September of 2009 to maintain, repair 7

11 or replace walkways refutes Director Giaquinto s sworn statements, however. Director Giaquinto s sworn statements are further refuted by representations made by the COA s attorney to the New Hampshire Commission for Human Rights. In a March 22, 2010, letter to Commission Investigator Casey Miller, Attorney Connelly first declares that The Rolling Green at Whip-Poor-Will Condominium Owners Association denies that it has discriminated against Mr. Eldridge due to his claim of a disability, but Attorney Connelly goes on to admit that the Board of Directors of the Association is a not for profit organization that is responsible to maintain, repair and replace the common elements at the Rolling Green at Whip-Poor-Will Condominium. Id. at p. 70 (emphasis supplied). Notably, this Attorney Connelly letter to the Commission, in and of itself creating a genuine issue of material fact as to whether the COA had the legal ability or authority to repair walkways in the condominium complex, was before the trial court when the trial court ruled on the COA s summary judgment motion because the COA submitted the letter as an attachment to its summary judgment motion. Id. SUMMARY OF ARGUMENT The trial court committed reversible error in declining to reconsider its entry of summary judgment, and in declining to consider new evidence submitted with the motion for reconsideration, because: a.) the new evidence was properly procured by the plaintiff through a discovery deposition taken during the time period allowed by the Court for pretrial discovery; and b.) the new evidence was sufficient to ward off summary judgment because it demonstrated more than a reasonable basis to dispute the facts contained in the moving party s affidavit, on which facts the trial court had singularly relied in granting summary judgment. The turning of a blind eye to evidence obtained by the plaintiff through pretrial discovery, in the time period allowed by the Court Structuring Order for pretrial discovery--where such evidence squarely 8

12 contradicted the moving party s contentions in its affidavit--disregarded the bedrock principle that a trial is a search for truth and denied a deserving litigant his day in Court. This Court should therefore vacate the summary judgment Order and remand. ARGUMENT A. The Summary Judgment Standard Summary Judgment Must Be Denied if A Reasonable Basis Exists To Dispute The Facts Claimed in the Moving Party s Affidavit. Summary judgment is only appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. RSA 491:8-a, III (emphasis supplied). RSA 491:8-a places on the party moving for summary judgment the burden of showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. This Court has held that the task of a court in reviewing a summary judgment motion is to determine whether a reasonable basis exists to dispute the facts claimed in the moving party s affidavit at trial. Iannelli v. Burger King Corp., 145 N.H. 190, 193 (2000). Summary judgment must be denied, this Court has held, if a reasonable basis does exist to dispute the facts asserted in the moving party s affidavit. Id. The Court has made it clear that although the [summary judgment] statute is designed to reduce unnecessary trials, it is not intended that deserving litigants be cut off from their day in court. Id. at 192 (quotations omitted). 9

13 B. A Trial Court s Failure to Consider New Evidence on a Motion for Reconsideration is Reversible Error Where, As Here, The Failure to Consider The Evidence is Untenable or Unreasonable to the Prejudice of the Case. While it is true that generally a trial court need not consider new evidence on a motion for reconsideration, this Court s case law supports that a trial court s refusal to consider new evidence submitted with a motion for reconsideration can under certain circumstances constitute an unsustainable exercise of discretion and reversible error. Whether to receive further evidence on a motion for reconsideration rests in the sound discretion of the trial court. Lillie- Putz Trust v. Downeast Energy Corp., 160 N.H. 716, 726 (2010) (emphasis supplied). This Court will overturn a trial court s denial of a motion for reconsideration if the trial court s failure to consider the new evidence was clearly untenable or unreasonable to the prejudice of the case. Id. The trial court s failure to consider Tracey Madden s April 23, 2014, deposition testimony, or the documents Ms. Madden produced at her deposition demonstrating that the COA had exercised complete control over the walkway repairs, meets the Lillie-Putz standard for an unsustainable exercise of discretion. C. The Trial Court Unreasonably Limited Discovery, Refusing To Consider Evidence That The Plaintiff Obtained Through Pretrial Discovery, During The Time Period The Court Had Allowed For Pretrial Discovery. The trial court s refusal to consider relevant information obtained through pretrial discovery, during the time period allowed by the trial court for pretrial discovery, amounts to an untenable and unreasonable limitation on discovery and an affront to the bedrock principles of pretrial discovery under New Hampshire law. This Court has appropriately described pretrial discovery as an integral part of pretrial procedure. Durocher s Ice Cream Co. v. Perice Constr. Co., 106 N.H. 293, (1965). New Hampshire law favors liberal discovery [because New 10

14 Hampshire courts] have long recognized that justice is best served by a system that giv(es) both parties the maximum amount of information. Murray v. Developmental Servs. of Sullivan County, 149 N.H. 264, 267 (2003). If discovery is unreasonably limited, the trier of fact is likely to be deprived of having both sides of an issue fully presented, and the system becomes less effective as a means of discovering the truth. Id. The trial court s setting of a discovery deadline creates an expectation in litigants that the deadline defines the time frame within which the litigants may prepare the case for trial. Mr. Eldridge appropriately obtained Ms. Madden s deposition testimony, and obtained the documents refuting the COA s under-oath statements to the trial court that the COA somehow lacked the ability or authority to repair walkways, during the time period allowed by the trial court s Structuring Conference Order. By refusing to consider relevant evidence procured by Mr. Eldridge during the time period allowed for discovery, the trial court unreasonably limited discovery, rendering meaningless the discovery deadline that the trial court had set and defying Mr. Eldridge s reasonable expectation that discovery he conducted up to the discovery deadline would have meaning in his case. Mr. Eldridge certainly would not have incurred the time and expense to conduct the April 23 deposition, if he had known that the trial court would refuse to consider any evidence the deposition yielded in determining whether there were genuine issues of material fact so that he could have a jury hear his claims. D. The Trial Court Acted Unreasonably, To the Prejudice of the Case, in Refusing to Consider the New Evidence Because the New Evidence Mandated the Denial of Summary Judgment. The trial court s refusal to consider the new evidence was particularly untenable and unreasonable to the prejudice of the case, warranting reversal, because the evidence in question demonstrates not only a reasonable basis, but compelling grounds, to dispute the moving party s affidavit and find genuine issues of material fact for trial, mandating the denial of summary 11

15 judgment. The trial court s granting of summary judgment rested entirely on the trial court s reliance on sworn representations from the COA that it lacked the ability or authority to repair walkways in the condominium complex. These sworn representations are irreconcilably inconsistent with the evidence and testimony from Senior Property Manager Madden that the COA Board of Directors, and the COA Board of Directors alone: 1.) identified the walkways needing repairs, identifying Mr. Eldridge s walkway and two (2) others; 2.) voted to repair each walkway identified, with the exception of Mr. Eldridge s walkway; and 3.) contracted with a contractor for the walkway repairs. Given that the new evidence proffered in the motion for reconsideration provides more than a reasonable basis to dispute the facts in the Karen Giaquinto Affidavit on which the trial court heavily relied in granting summary judgment, the trial court s refusal to consider the evidence was untenable and unreasonable to the prejudice of the case. This is so because consideration of the evidence would have mandated vacating the summary judgment Order, while ignoring the evidence lets an improper entry of summary judgment stand and deprives a deserving litigant of his day in court. See Iannelli, 145 N.H. at 193 (holding that summary judgment must be denied if a reasonable basis exists to dispute the moving party s affidavit). Federal case law is instructive on how an appellate court should determine whether a trial court has committed reversible error in failing to consider new evidence on a motion for reconsideration. In Perez v. Volvo Car Corp., 247 F.3d 303, 319 (1 st Cir. 2001), the First Circuit held that the trial court erred by failing to consider certain s that the plaintiffs first produced to the trial court on a motion for reconsideration. The First Circuit found the plaintiffs relatively blameless for submitting the s to the trial court after summary judgment had been granted, noting that the defendant had not produced the s to the 12

16 plaintiffs until the month in which the defendant had filed its summary judgment motion. Id. at 318. In order to determine whether the trial court s error was reversible or harmless, the First Circuit held that the dispositive question was: do the s have enough probative value to ward off summary judgment? Id. at 319. If they do, then the error requires that we vacate the existing order for summary judgment, said the Court. If they do not, then any error in the denial of reconsideration was harmless. Id. Here, consideration of the testimony and evidence from the Madden deposition was sufficient to ward off summary judgment, rendering reversible error the trial court s refusal to consider such evidence. Importantly, the trial court s in-passing comment that the evidence, even if considered, somehow would not matter, simply constitutes further error, for several reasons. See Appendix at p First, the COA s sworn statements that it had no ability or authority to repair the walkways, when the COA actually did arrange for and control the walkway repairs, smack of duplicity, warranting a conclusion by the fact finder that the COA was motivated by discriminatory animus. Ameristar Airways, Inc v. Admin. Review Bd., 650 F.3d 562, (5 th Cir. 2011) ( If the trier of fact does not believe the [defendant] to have given a truthful account of its decision, it is reasonable to infer that the most likely explanation is the one the [defendant] cannot admit that it acted for retaliatory or discriminatory reasons. ); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1293 (D.C. Cir. 1998) ( If the jury can infer that the [defendant s] explanation is not only a mistaken one in terms of the facts, but a lie, that should provide even stronger evidence of discrimination, noting that according to ordinary evidentiary principles a lie is evidence of consciousness of guilt ). 13

17 Second, the trial court misreads the case law that it cites where it finds that somehow only a contracting entity owes a duty of reasonable accommodation to a disabled person. Appendix at p. 167 at n.2. The law actually imposes the requirement not to discriminate upon any person who owns, leases, or operates a place of accommodation. Roberts v. Royal Atl. Corp., 542 F.3d 363, 379 (2d Cir. 2008). Given that Senior Property Manager Madden s testimony and evidence establishes that the COA operated the walkways, the obligation of reasonable accommodation certainly applied to the COA, regardless of what the Declaration said. Lastly, it is axiomatic under New Hampshire law that one who voluntarily assumes a duty thereafter has a duty to act with reasonable care. Carignan v. N.H. Int l Speedway, 151 N.H. 409, 413 (2004). The COA assumed a duty to repair the walkways and therefore bore a duty to act reasonably, which would include the duty to fulfill obligations under RSA 354-A:12 to reasonably accommodate persons with disabling impairments. Because the Madden evidence and testimony was sufficient to establish that the COA owed Mr. Eldridge a duty of reasonable accommodation, and because such evidence and testimony was therefore sufficient to ward off summary judgment, the trial court committed reversible error by refusing to consider it. CONCLUSION For the foregoing reasons, the Court should vacate the trial court s entry of summary judgment and remand the case for trial. REQUEST FOR ORAL ARGUMENT Mr. Eldridge respectfully requests that the Court allow him fifteen (15) minutes oral argument and designates Benjamin T. King, Esquire, as the attorney to be heard. 14

18 Respectfully submitted, DAVID ELDRIDGE By his attorneys, DOUGLAS, LEONARD & GARVEY, P.C. Date: November 19, 2014 By: Benjamin T. King, Bar # South Street, Suite 5 Concord, NH (603) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been mailed by first-class mail this date to Mark E. Connelly, Esq., 722 Chestnut Street, Manchester, NH Benjamin T. King 15