Mogaji v. Chan
| Decision Date | 07 October 2022 |
| Docket Number | CIVIL 20-cv-249-JL,Opinion 2022 DNH 126 |
| Parties | Martha I.O. Mogaji v. Tom Chan, Rosa Chan, TRC Trust, Nan King Restaurant |
| Court | U.S. District Court — District of New Hampshire |
FINDINGS OF FACT AND RULINGS OF LAW AFTER BENCH TRIAL
This commercial landlord-tenant case requires the court to determine whether the landlords violated any legal obligations they owed to the tenant before, during or after eviction proceedings conducted pursuant to New Hampshire law. The defendants[1] evicted the former tenant, plaintiff Martha I.O. Mogaji, from the subject premises in Hudson, New Hampshire after town officials determined that Ms. Mogaji had violated several town land use codes, thereby breaching a provision of the parties' lease. Claiming that her former landlords first failed to assist her in obtaining the necessary local permits, and later refused to allow her to retrieve her belongings from the premises, Ms. Mogaji appearing pro se, sued the defendants for damages.[2]Ms. Mogaji asserts five causes of action 1) breach of the lease; 2) interference with business relations; 3) negligence; 4) violation of Mass. Gen. Laws (“MGL”) ch. 91-A; and 5) conversion.[3] The defendants have asserted a counterclaim for unpaid rent accrued during the pendency of the eviction proceedings.[4] This court's jurisdiction is premised on diversity of citizenship. 28 U.S.C. § 1332.
Prior to trial, the parties submitted separate timelines of events pre-trial memoranda, and requests for findings of fact and ruling of law. The court held a one-day bench trial at which each side presented documentary evidence and witness testimony.[5] Relying on those materials and witness testimony, the court makes the following findings of fact and ruling of law, see Fed.R.Civ.P. 52(a)(1), resulting in judgment for the defendants, both on the plaintiff's claims and on their counterclaim.
I. Findings of fact
Plaintiff leased two units in a commercial building at 23 Burnham Road, Hudson, New Hampshire, commencing April 1, 2015, from defendant TRC Trust (“TRC”), the owner of the property. Defendant Rosa Chan (Chan) is a trustee of TRC. The rent for the two units totaled $1300 per month.
As relevant to this case, the five-year lease contained a provision requiring Ms. Mogaji to comply with all rules, regulations, ordinances, codes, and laws of all governmental authorities having jurisdiction over the premises. The lease also provided that the “landlord grants consent to build-to-suit for multiple businesses and that parking spaces “directly in front” of the two units are for two leased units.[6]
On May 3, 2018, the Town of Hudson served Chan with a written notice that Ms. Mogaji's occupancy of the premises was in violation of town land use ordinances.[7] Specifically, the notice of violations indicated that signs had been erected without the required permits and that a restaurant had been created without building permits or site plan approval.[8]
The necessary permits required the landlord's signature. In attempting to get Mrs. Chan to sign the permit applications, Ms. Mogaji only presented Mrs. Chan with the signature pages, rather than the entire application. Mrs. Chan refused to sign the incomplete documents as presented to her.[9]
On May 4, 2018, the Town of Hudson Community Development Department posted a “Stop Work” order at the leased premises.[10] On May 11, 2018, plaintiff was served with a 30-day eviction notice alleging that she had failed to comply with a material term of the lease by, among other actions, creating a restaurant at the property without building permits and without plan approval by the Town of Hudson.[11] On June 20, 2018, after Ms. Mogaji failed to vacate the premises, Mrs. Chan, as property manager, brought an eviction action in New Hampshire state court seeking possession of the premises.[12] Ms. Mogaji responded to the eviction action with an answer and counterclaim, in which she asserted several defenses to the eviction.[13] Among Ms. Mogaji's defenses were that the Chans had breached the lease by not assisting Ms. Mogaji in acquiring the necessary permits from the Town of Hudson and by vandalizing the property.[14] Ms. Mogaji also asserted a counterclaim for racial discrimination.[15]
TRC obtained a state court judgment against plaintiff on August 1, 2018.[16] In addition to awarding judgment “to the landlord,” the court also found [17] Ms. Mogaji appealed the landlord-tenant judgment to the New Hampshire Supreme Court, which dismissed the appeal on November 14, 2018, because Ms. Mogaji did not pay rent after filing her notice of appeal, as court rules require.[18] After the appeal was dismissed, the state court issued a writ of possession to TRC on December 26, 2018.[19] The county sheriff delivered possession of the premises to TRC on January 9, 2019, at which time the locks to the leased premises were changed.[20]
On January 6, 2019, Ms. Mogaji sent an email to Mrs. Chan and her attorney, acknowledging that the defendant “now had a right to evict” her and requesting until the end of January to remove her belongings. In an exchange of texts on January 11, 2019, Mrs. Chan and Ms. Mogaji agreed that Ms. Mogaji was entitled to seven days to remove her belongings from the leased premises.[21]
Although Mrs. Chan, through counsel, rejected Ms. Mogaji's request that she be given until the end of January to remove her possessions, the parties agreed that Ms. Mogaji could remove her property from the premises beginning at 11 a.m. on January 15, 2019. Mrs. Chan told Ms. Mogaji that she would pay for four hours of police presence - a “civil standby” - and that Ms. Mogaji would have to pay the police department for additional time.[22] On January 15, Ms. Mogaji arrived at the premises later than the agreed-upon 11 a.m. start time.[23] At approximately 2 p.m., Mrs. Chan went to the local town offices to pay for another hour of the stand-by officer's time. At 3 pm., she locked the premises and she and the officer left the scene.
Meanwhile, at 2:53 pm., Ms. Mogaji notified Mrs. Chan that she was at the local courthouse. At 6:26 p.m. Ms. Mogaji notified Mrs. Chan that she had been granted an injunction to allow her more time to remove her property. At 8:45 p.m., Mrs. Chan asked for a copy of the court's order. At 10:18 p.m., Mrs. Mogaji replied that the sheriff would serve her. At 7:37 p.m. the next day, January 16, 2019, Mrs. Mogaji texted Mrs. Chan, saying that “neither [Mrs. Chan], the police nor the sheriff served me with any court documents before locking me out.”[24]
Ms. Mogaji and Mrs. Chan had no further contact. On February 21, 2019, the court that issued the injunction on January 15 vacated its order, finding that it had no jurisdiction to issue such an order in a case involving a commercial tenancy. The New Hampshire Supreme Court affirmed that order in October 2019. Other than the aborted move on January 15, 2019, Ms. Mogaji made no attempt to remove her possessions from the leased premises after she received notice of the New Hampshire Supreme Court's November 14, 2018, dismissal of her eviction appeal.[25] II. Rulings of Law
Ms. Mogaji alleges that the defendants breached the operative lease in two ways. First, in her complaint, she alleged that the Chans breached a contractual obligation to assist her in acquiring the permits from the Town of Hudson that she needed to legally operate her businesses. Second, during trial, Ms. Mogaji further alleged that the Chans breached a lease provision assigning certain parking spaces to Ms. Mogaji's business.
“Under New Hampshire law, a breach of contract occurs when there is a failure without legal excuse to perform any promise which forms the whole or part of a contract.” Teatotaller, LLC v. Facebook, Inc., 173 N.H. 442, 447, 242 A.3d 814, 818 (2020) (quoting Pro Done, Inc. v. Basham, 172 N.H. 138, 142, 210 A.3d 192, 196 (2019)). While proof of damages to the degree of mathematical certainty is not necessary, speculative losses are not recoverable. Hydraform Prod. Corp. v. Am. Steel & Aluminum Corp., 127 N.H. 187, 197498 A.2d 339, 335 (1985) (citation omitted).
As to her first allegation of breach, the court, as previously noted, is persuaded by Ms. Chan's testimony that Ms. Mogaji did not provide her with the entire permit applications to sign, but only asked her to sign detached signature pages. Ms. Chan persuasively testified that as a long-time business owner, she was familiar with the appearance of the applications at issue and would not have signed a signature page detached from the relevant application.
As to Ms. Mogaji's second alleged breach, Mrs. Chan did not dispute that other tenants used parking spaces that were assigned to Ms. Mogaji. But that is not the end of the court's inquiry. As the court repeatedly cautioned Ms Mogaji at trial, her failure to put on evidence that this alleged breach caused her damage could be fatal to this claim. One who seeks to recover damages has the burden of proving the extent and amount of such damages. Hangar One, Inc. v. Davis Assoc's, Inc., 121 N.H. 586, 590, 431 A.2d 792, 795 (1981). On this point, Ms. Mogaji presented only the testimony of her brother, Cedric, who testified that he was responsible for paying Ms. Mogaji's $30,000 annual salary, and that she received all money to which she was entitled. Ms. Mogaji also asserted at trial that the defendants prevented her from earning even more money by damaging the businesses located at the premises with which she had a contractual relationship. But she offered no evidence as to the...
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