Simpson v. Young

• Decision Date: 16 May 2006
• Docket Number: No. 2004–700.,2004–700.
• Court: New Hampshire Supreme Court
• Parties: John SIMPSON v. Daniel YOUNG.

153 N.H. 471

899 A.2d 216

John SIMPSON

v.Daniel YOUNG.

No. 2004–700.

Supreme Court of New Hampshire.

Argued: Nov. 10, 2005.

Opinion Issued: May 16, 2006.

Rehearing Denied June 8, 2006.

Law Offices of Brian T. Stern, P.A., of Dover (Brian T. Stern on the brief and orally), for the plaintiff.

Mayer Law Offices, of Nashua (Fred K. Mayer III on the brief and orally), for the defendant.

Kelly A. Ayotte, attorney general (David A. Rienzo, assistant attorney general, on the brief), for the State, as amicus curiae.

DALIANIS, J.

The Laconia District Court (Huot, J.) found the defendant, Daniel Young, in violation of RSA 540–A:3, I–III (Supp.2005), and awarded damages in the amount of $1,000 to the plaintiff, John Simpson. The plaintiff appealed the trial court's denial of certain damages and its failure to find the defendant in contempt. We issued an opinion on December 29, 2005, affirming in part, reversing in part, and remanding. Both parties filed motions for reconsideration. We denied the plaintiff's motion, denied the defendant's motion in part, and ordered supplemental briefing, because the defendant, upon reconsideration, for the first time raised a jurisdictional issue. We withdrew our original opinion. We affirm in part, reverse in part, and remand.

I. Background

The record supports the following facts. In 2004, the plaintiff and his wife rented a three-bedroom house in Barnstead from the defendant. The record does not indicate whether the parties had a written lease. On April 18, 2004, the plaintiff moved out of the house after his wife obtained a restraining order against him. The plaintiff's wife continued to reside in the house until June 21, 2004, when the restraining order was lifted, giving the plaintiff the right to return to the house. On June 30, 2004, the plaintiff filed a petition under RSA 540–A:4 (Supp.2005) alleging that on June 25, 2004, the defendant willfully, and without the permission of the court: (1) caused the plaintiff's gas to be shut off; (2) locked him out of the house; (3) seized his personal belongings; and (4) entered the house without his permission. That day, the trial court issued ex parte temporary orders and scheduled a hearing on the matter. On July 9, 2004, the sheriff's department served the defendant at his abode. On July 15, 2004, the plaintiff moved for contempt alleging that the defendant had violated the temporary orders. In response, the trial court ordered that the temporary orders be served in hand on the defendant.

On July 29, 2004, the trial court held a hearing on the underlying petition and the motion for contempt. The trial court denied the plaintiff's motion for contempt. It found, however, that the defendant violated RSA 540–A:3, I–III, and issued a "Final Order" pursuant to RSA 540–A:4 requiring the defendant: (1) to restore and maintain all utility services provided as part of the rental agreement; (2) not to interfere with the plaintiff's access to or use or quiet enjoyment of the premises or his personal property; (3) not to enter the premises without permission from the plaintiff; and (4) to pay damages to the plaintiff in the amount of $1,000. In addition, the trial court ordered that non-compliance with the final order "shall subject Defendant to damages of $3,000 per day as defendant now knows he has been in violation of RSA 540–A:3." Following the hearing, the defendant immediately restored the plaintiff's access to the house, and the plaintiff, in turn, gave the defendant permission to enter the house for twenty-four hours to retrieve his belongings, which the defendant was storing in the house.

The plaintiff returned to the house on July 30, 2004, to find that the defendant had delivered an overdue rent notice, stating that he would offset the $1,000 damages award against the overdue rent. The defendant appeared at the house the next day to remove his remaining belongings. On August 3, 2004, the plaintiff moved for contempt against the defendant, claiming that the defendant had violated the final order. After a hearing, the trial court denied the plaintiff's motion for contempt, stating: "Plaintiff gave him permission to remove his belongings even though Defendant exceeded that permission by showing upon [sic ] Sunday, August 1, 2004, unannounced and entered without permission." The trial court also denied the plaintiff's motion for reconsideration. This appeal followed.

On appeal, the plaintiff argues that the trial court erred by refusing to: (1) award damages for a continuing violation of RSA 540–A:3, I–III; (2) award enhanced damages pursuant to RSA 358–A:10 (1995); and (3) find the defendant in contempt of the final order. In addition, the plaintiff requests attorney's fees and costs pursuant to RSA 540–A:4, IX for bringing this appeal. Upon reconsideration, the defendant argues that the district court lacks jurisdiction to award damages in excess of $25,000.

II. Violation of RSA 540–A:3, I–III

As a preliminary matter, we address the defendant's contention that the trial court erred by awarding any damages because he did not violate RSA 540–A:3, I–III. Because the defendant did not appeal the final order or file a cross-appeal, we will not review it. Sup.Ct. R. 7(5) ; see also Concord Hosp. v. N.H. Medical Malpractice Joint Underwriting Assoc., 137 N.H. 680, 686, 633 A.2d 1384 (1993). Furthermore, we will not relax the standards simply because the defendant chose to proceed pro se until the plaintiff filed his appellate brief. As a result of the defendant's failure to appeal or cross-appeal, we are bound by the trial court's conclusion that the defendant violated RSA 540–A:3, I–III. Therefore, we uphold the trial court's finding that the defendant willfully interfered with the plaintiff's access to his house, personal property and utility services.

We now address the plaintiff's assertion that the trial court erred by awarding only $1,000 in damages for the defendant's violation of RSA 540–A:3, I–III. Specifically, the plaintiff argues that the trial court erred by failing to award damages for each day of the continuing violation of RSA 540–A:3, I–III. We agree.

RSA 540–A:4, IX(a) provides, in pertinent part:

Any landlord or tenant who violates ... any provision of RSA 540–A:3 shall be subject to the civil remedies set forth in RSA 358–A:10, including costs and reasonable attorney's fees incurred in the proceedings. Each day that a violation continues shall constitute a separate violation.

RSA 358–A:10, I (1995) provides, in pertinent part:

If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater. If the court finds that the use of the method of competition or the act or practice was a willful or knowing violation of this chapter, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney's fees, as determined by the court.

The trial court did not award damages for more than one day absent proof of when the defendant received the temporary orders. This was error. See Johnson v. Wheeler, 146 N.H. 594, 597, 777 A.2d 864 (2001). As we explained in Johnson, 146 N.H. at 594, 777 A.2d 864, RSA 540–A:3 "seeks to prohibit the landlord's interference with the tenant's property or premises." When the defendant received notice of the trial court's temporary orders is irrelevant to determining when the defendant began interfering with the plaintiff's premises or personal property. We have previously held that landlords are charged with knowledge of the statute. Id. at 597, 777 A.2d 864. Here, the trial court was required under RSA 540–A:4, IX to award the plaintiff damages for each day that the defendant violated RSA 540–A:3, I–III.

We now turn to the calculation of the damages award. The final order does not state when the defendant first denied the plaintiff access to the premises or his personal property. We ordinarily would remand this unresolved issue; however, when a lower tribunal has not addressed a factual issue, but the record reveals that a reasonable fact finder necessarily would reach a certain conclusion, we may decide that issue as a matter of law. Appeal of Cote, 139 N.H. 575, 580, 660 A.2d 1090 (1995). Even in the absence of an express finding as to the date of the initial violation of RSA 540–A:3, I–III, the record before us compels a finding that the defendant interfered with the plaintiff's access to the premises from June 25, 2004, through July 29, 2004. See id.

In his RSA 540–A:4 petition, the plaintiff alleged that on June 25, 2004, the defendant, among other things, locked him out of the house, seized his personal belongings, and caused his gas to be shut off. The defendant testified that prior to the hearing, he last met and spoke with the plaintiff on June 25, 2004. The defendant also testified that:

I just told him that I didn't want him to stay there no more. I didn't want him moving back in. He hadn't lived there in two and a half months, and it was like, you know, you haven't been here for two and a half months, you know, keep doing what—get another place.

In response, the trial judge stated that the defendant was not entitled to resort to self-help and had "to go through the eviction process, just like everyone else." At the conclusion of the July 29, 2004 hearing, the trial court issued the final order, and the defendant immediately restored the plaintiff's access to the premises. Based upon the record, we find, as a matter of law, that the defendant willfully interfered with the plaintiff's access to the premises from June 25, 2004, through July 29, 2004, for a total of thirty-four days.

We, thus, hold the trial court erred by awarding damages in the amount of only $1,000. Under RSA 540–A:4, IX(a), the plaintiff could be entitled to $34,000: $1,000 for each of the thirty-four days from June 25, 2004, through July 29, 2004, that the defendant remained in...