Miller v. Slania Enterprises, Inc., No. 2003-191 (N.H. 3/15/2004), 2003-191
| Decision Date | 15 March 2004 |
| Docket Number | No. 2003-191,2003-191 |
| Parties | JOSEPH MILLER v. SLANIA ENTERPRISES, INC. |
| Court | New Hampshire Supreme Court |
Joanne M. Stella, of Durham, by brief and orally, for the plaintiff.
Lynne C. Christie, of Durham, by brief and orally, for the defendant.
New Hampshire Legal Assistance, of Manchester (Elliott Berry on the brief), for The Way Home, as amicus curiae.
The defendant, Slania Enterprises, Inc. (landlord), appeals a decision of the Durham District Court (Larson, J.) awarding damages to the plaintiff, Joseph Miller, as a result of an illegal eviction. We affirm.
The record supports the following facts. The landlord entered into a lease agreement with the plaintiff and others (tenants) for an apartment in Durham. The lease ran from June 2001 until May 25, 2002, and called for monthly rent of $2,000. The tenants failed to pay the total rent due for April 2002 on time. The landlord brought an eviction action for nonpayment of rent, which resulted in the issuance of a default judgment and writ of possession on April 19, 2002.
On April 25, 2002, the plaintiff and a fellow tenant met with Tom Christie, the landlord's representative. They verbally agreed that the plaintiff would pay the April rent arrearage and the May rent, and in return, the tenants would be allowed to stay in the apartment until May 25, 2002. The plaintiff gave Christie a check for $3,200 to pay the April arrearage and the May rent, which Christie accepted and later deposited in the bank. The check cleared the plaintiff's bank in Illinois on April 29, 2002.
After the meeting on April 25, the tenants held a party in their apartment. The landlord believed that the party violated the terms of the prior lease agreement, and thus violated the terms of the verbal agreement reached on April 25. The landlord instructed the sheriff to execute the writ of possession. On April 29, the sheriff posted a notice on the tenants' apartment door advising them that they had forty-eight hours to move. The tenants completed moving out of the apartment on May 1.
On May 31, the landlord issued a letter to the tenants itemizing a number of charges the landlord was making against the tenants' $ 2,000 security deposit. Because the charges exceeded $2,000, no part of the tenants' security deposit was returned to them.
The plaintiff sued for breach of the covenant of quiet enjoyment, violation of the Consumer Protection Act, improper security deposit deductions, and unjust enrichment. The landlord counterclaimed for damages in excess of the security deposit, or alternatively for all of its damages under contract law. During the trial, the plaintiff cross-examined Christie, without objection, regarding his knowledge of the provisions of RSA 540:13, VII (Supp. 2003), which permits a landlord under certain circumstances to accept payment of rental arrearages without creating a new tenancy. At the conclusion of the trial, plaintiff's counsel asked the court to review RSA 540:13, VII, arguing:
If they [the landlord] accept payment during the pendency of a possessory action, that they're supposed to inform the tenant, in writing, that they're gonna go forward with the eviction.
No objection was made at trial to this argument. The court gave the landlord ten days following the end of the trial in which to file a memorandum of law.
In its post-trial memorandum of law, the landlord noted: "At trial, though not [pled], Plaintiff seemed to argue that Landlord had created a new tenancy under RSA 540-A:13(VII) [sic] by not giving written notice of proceeding with the eviction after Joe Miller paid the April rent arrearage and the May rent in advance." The landlord then set forth its legal arguments on the merits. It again did not object to the court's consideration of this issue, nor contend that the timing and manner in which the issue had been raised at trial either deprived it of the opportunity to present evidence or otherwise prejudiced it in any way.
The trial court ruled that the landlord's acceptance of the $ 3,200 tendered by the plaintiff on April 25, absent any written notice of the landlord's intention to proceed with the eviction process, created a new tenancy. The court found that no evidence was introduced by either party as to the terms of the new tenancy, and ruled that it was a tenancy at will. The court further ruled that the eviction violated RSA 540:13, VII because the writ of possession that was executed had been issued on the old tenancy, but a new tenancy had thereafter been created. The court awarded damages in the amount of $1,000 for the unlawful eviction, as well as attorney's fees of $600.
The court also ruled that improper security deposit deductions were claimed by the landlord, and awarded $1,353.72 to the plaintiff. Although the court further ruled that the landlord's May 31, 2002 itemization of charges had been untimely, the court did not award any damages because of the late notice.
Finally, the court ruled that the landlord had been unjustly enriched due to its retention of the $2,000 rent for May, since the landlord had unlawfully denied the tenants occupancy of the apartment during that month, and awarded the plaintiff damages in that amount.
The landlord moved for reconsideration, arguing for the first time that it had been surprised at trial by the plaintiff's argument that the landlord had created a new tenancy under RSA 540:13, VII. The motion for reconsideration was denied.
On appeal, the landlord argues, among other things, that the trial court erred by: (1) awarding damages under a theory not pled by the plaintiff; (2) ruling that RSA 540:13, VII applied and that a new tenancy was created; (3) finding sufficient evidence that the landlord willfully circumvented the lawful procedures for eviction; (4) ruling that the May 31, 2002 security deposit notice was untimely; (5) ruling that a "savings clause" in the lease agreement was invalid; and (6) ruling that the thirty-day time limit in RSA 540-A:7 (1997) acts as a statute of limitations for all separate actions for damages.
We will not disturb the findings of the trial court unless they lack evidentiary support or are erroneous as a matter of law. Legal conclusions, as well as the application of law to fact, are reviewed independently for plain error. Accordingly, our inquiry is to determine whether the evidence presented to the trial court reasonably supports its findings, and then whether the court's decision is consonant with applicable law. Finally, we review questions of law de novo.
Sherryland v. Snuffer, 150 N.H. ___, ___, 837 A.2d 316, 319 (2003) (citations omitted); see also RSA 540-A:4, V (1997).
The landlord first argues that the trial court erred by awarding damages under a theory not pled by the plaintiff. The landlord contends that the court erroneously allowed the plaintiff to constructively amend his pleadings to allege a violation of RSA 540:13, VII. See RSA 514:9 (1997). The landlord did not object either to the introduction of evidence related to the landlord's compliance with RSA 540:13, VII, or to the plaintiff's arguments at the close of the evidence addressing the same issue. The landlord was then allowed to file a post-trial memorandum of law in which it again raised no objection and instead addressed the issue on the merits. Cf. Penrich, Inc. v. Sullivan, 140 N.H. 583, 590 (1995) (). Furthermore, neither below nor on appeal has the landlord identified any evidence that it was precluded from introducing; nor has it otherwise demonstrated any unfair prejudice resulting from the court's consideration of this issue. Accordingly, we find no reversible error. Cf. Kravitz v. Beech Hill Hosp., 148 N.H. 383, 393 (2002) ().
The landlord next challenges the trial court's rulings that RSA 540:13, VII applied and that a new tenancy was created when the landlord accepted payment of $3,200 on April 25. RSA 540:13, VII provides:
In the case of nonpayment of rent, while the possessory action is pending, the landlord may accept payment of the rental arrearage without creating a new tenancy, provided that the landlord informs the tenant in writing of the landlord's intention to proceed with the eviction in spite of the landlord's acceptance of the payment. The landlord may choose not to accept payment and to proceed with the eviction.
The landlord argues that the possessory action was no longer "pending" on April 25 because the district court entered final judgment and issued a writ of possession prior to that date. Therefore, the landlord contends, the statute does not apply.
On its face, RSA 540:13, VII does not affirmatively provide for the creation of a new tenancy upon acceptance of a rental arrearage. Rather, it appears to assume that a new tenancy may be created under such circumstances. The statute affirmatively creates a safe harbor for landlords, providing a method by which they may accept rental arrearages from tenants without thereby creating a new tenancy, while ensuring that a tenant who makes such a payment does so with notice that the payment will not stop the eviction proceeding. Furthermore, RSA 540:13, VII on its face addresses the acceptance of rental arrearages, not the payment of future rent.
We need not decide, however, whether RSA 540:13, VII would have allowed the landlord to accept the rental arrearage and future rent on April 25 without creating a new tenancy because it is undisputed that the landlord did not provide the plaintiff with written notice of its intention to proceed with the eviction in spite of the payment.
Nor need we decide whether RSA 540:13, VII creates, by negative implication, a new tenancy when a...
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