Randall v. Abounaja

• Decision Date: 11 January 2013
• Docket Number: No. 2011–456.,2011–456.
• Citation: 164 N.H. 506,62 A.3d 815
• Parties: Myla RANDALL v. Nahla ABOUNAJA.
• Court: New Hampshire Supreme Court

164 N.H. 506
62 A.3d 815

Myla RANDALL
v.
Nahla ABOUNAJA.

No. 2011–456.

Supreme Court of New Hampshire.

Argued: Nov. 27, 2012.
Opinion Issued: Jan. 11, 2013.

62 A.3d 816

Emmanuel Krasner, of Farmington, by brief and orally, for the petitioner.

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

DALIANIS, C.J.

164 N.H. 507

The respondent, Nahla Abounaja, appeals an order of the Rochester District Court (Cappiello, J.) that awarded the petitioner, Myla Randall, $18,000 in damages under RSA 540–A:4 (Supp.2012) (amended 2011) because of the respondent's willful failure to provide heat to the petitioner's apartment for eighteen days. We affirm in part, vacate in part, and remand.

The trial court found, or the record supports, the following facts. The petitioner rented an apartment from the respondent in Rochester. At some point before March 23, 2011, the petitioner complained to the city's plumbing and health inspector that her apartment lacked heat. On March 23, the inspector came to the premises and discovered that there was no heat in the petitioner's master bedroom because neither the radiator nor the electric heater worked. The inspector called the respondent about this issue on or about March 23, and met with her on or about March 25.

On March 28, the inspector sent a letter to the respondent about this problem, giving her fourteen days to remedy it. The respondent did not respond to the letter. Nor did she return the inspector's subsequent telephone calls.

The petitioner filed the instant petition on April 12, and, on that day, the trial court issued a temporary order requiring the respondent "to immediately restore and maintain all utility services" to the petitioner's apartment.

On or about April 14, the inspector returned to the premises to meet with the parties, but left because of the marked hostility between them. The inspector observed that the petitioner's master bedroom still lacked heat that day. The inspector testified that he sent the respondent another letter on April 14, inquiring why she had not responded to the March 28 letter. The city's assistant director of code enforcement inspected the premises on April 18, and found that the heating units were operational. The director of code enforcement also came to the premises on April 20 and as well discovered that the heating units worked.

62 A.3d 817

Following the hearing on the petition, the trial court found that the respondent was aware that the heating units did not work from March 28 or later, and that she failed to have them repaired until April 18. The court determined that the respondent's actions were willful because she knew that the master bedroom lacked heat but failed to have it repaired for eighteen days despite this knowledge. The trial court awarded the petitioner

164 N.H. 508

damages in the amount of $1,000 per day for each of the eighteen days that the respondent's violation continued. See Wass v. Fuller, 158 N.H. 280, 283, 966 A.2d 1004 (2009) ; RSA 540–A:4, IX(a) (2007) (amended 2010).

We will not disturb the findings of the trial court unless they lack evidentiary support or are erroneous as a matter of law. Miller v. Slania Enters., 150 N.H. 655, 659, 843 A.2d 939 (2004) ; see RSA 540–A:4, V. 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. Miller, 150 N.H. at 659, 843 A.2d 939. Finally, we review questions of law de novo. Id.

RSA 540–A:3, I (2007) provides: "No landlord shall willfully cause, directly or indirectly, the interruption or termination of any utility service being supplied to the tenant including, but not limited to ... heat ..., whether or not the utility service is under the control of the landlord." "[T]he term ‘willfully’ in RSA 540–A:3, I, denotes a voluntary and intentional act, and not a mistaken or accidental act." Wass, 158 N.H. at 283, 966 A.2d 1004.

In her brief, the respondent argued that her conduct was not "wil [l]ful" because she did not cause the petitioner's apartment to lack heat in the first instance. She argued that, at most, she merely "allow[ed]" the heating service to be interrupted; she did not "cause" the interruption itself. Her merely "negligent omission," she argued, did not constitute a willful act.

However, at oral argument, when questioned about whether she had ever raised this statutory argument in the trial court, the respondent clarified her position. She conceded that a landlord's willful failure to correct a condition "at some point ... it rises to willful interruption." Her counsel argued that the respondent did not act "willfully," however, because she was "just idly unaware of the problem." Later, her counsel explained:

[Court]: Now, you acknowledged at the outset of your argument that at some point there's a line where inaction becomes willfulness, is that right?

[Counsel]: I think that's built into the statute because the ... penalties accrue daily. So, in effect, every day is another violation. So, I think that there's no choice but to read it as day by day, y'know, today you might be mistaken, but tomorrow, if you ignore the problem, ... yes, the answer to your question is yes.

[Court]: ... In essence, didn't the trial court make a determination that, yes, this time it went ... past the line?

[Counsel]: Yes, I think that's what the trial court did, but the facts aren't on the record to support the finding. They're just not

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