Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hooksett District Court No. 2007-675 LIAM HOOKSETT, LLC v. ROBERT BOYNTON & a Submitted: May 22, 2008 Opinion Issued: August 20, 2008 Liam Hooksett, LLC, filed no brief. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Wilbur A. Glahn, III and Adam M. Hamel on the brief), for the defendants. DUGGAN, J. The defendants, Robert Boynton and Tina LaRochelle (tenants), appeal a decision of the Hooksett District Court (LaPointe, J.) ruling against them in an action by the plaintiff, Liam Hooksett, LLC, for unpaid rent and possession of certain property based upon nonpayment of rent. See RSA 540:13 (2007). We hold that the plaintiff failed to establish that it is the owner or lessor of the property at issue. See RSA 540:12 (2007). We further hold that, because the plaintiff filed an action to recover both possession and unpaid rent against the tenants, the tenants were statutorily entitled to raise any defense, claim, or counterclaim in response to the plaintiff's action. See RSA 540:13, III (2007). Accordingly, we reverse.

The record supports the following facts. Since at least December 2005, the tenants have rented an apartment at 1373 Hooksett Road in Hooksett (the property) without a lease on a month-to-month basis. On June 4, 2007, Lindsay Bernard, the plaintiff's manager, hand-delivered a demand for rent to the tenants. On July 10, 2007, Bernard again served the tenants with a demand for rent. Bernard then sent an eviction notice to the tenants on July 25, 2007, ordering them to vacate the premises by August 3, 2007. On August 6, 2007, Bernard filed a writ on behalf of the plaintiff against the tenants, seeking possession of the apartment and unpaid rent in the amount of $2,350. That same day, Bernard also signed and filed an "Affidavit of Ownership/Tenancy" (affidavit), which certified that the plaintiff was the owner of the property. The affidavit also stated that the person signing the affidavit "understand[s] that if th[e] certificate is incorrect, th[e] case may be summarily dismissed by the court." (Emphasis omitted.) The tenants filed pro se appearances on August 21, 2007, and, in their appearance forms, asserted counterclaims under RSA chapter 540-A (2007). The trial court held a merits hearing on September 4, 2007, at which Bernard appeared on behalf of the plaintiff, and the tenants appeared pro se. At the beginning of the hearing, the trial court noted that the plaintiff was seeking both unpaid rent and possession of the property based upon nonpayment of rent. It further explained: [T]he Plaintiff has to meet the burden of proof and try, they have to establish that the named owner, Liam Hooksett, LLC actually owns this property. And I assume the representative, to the extent she's qualified to testify about that, will establish that by deed or testimony or however she chooses to do it. And then she has to establish that the notices are in proper form. . . . So the way we'll proceed is I'll swear in the Plaintiff's representative. She'll first address the issue of her authority to appear on behalf of Liam Hooksett, LLC. And then beyond that, she'll, if she gets past that, she'll start telling me about ownership and the notices that were given. Bernard then testified that she was the plaintiff's manager, the plaintiff had three members, "those members [had] authorized [her] appearance on behalf of Liam Hooksett, LLC at [the] hearing," and she had personal knowledge of the matters at issue. Based upon this testimony, the trial court found that Bernard could represent the plaintiff in the action.

2

Subsequently, the trial court heard testimony from Bernard and both tenants concerning the factual circumstances giving rise to the action. The essence of Bernard's testimony was that the tenants had failed to pay rent for June and July 2007. The tenants raised two issues in defense. First, they claimed that an individual named Kevin McCarthy, not the plaintiff, was the actual owner of the property. Although Bernard had not previously demonstrated, by evidence or testimony, that the plaintiff was the actual owner of the property, the trial court did not address this issue. Second, the tenants attempted to testify that they had withheld rent because their apartment violated the standards of fitness for health and safety and was therefore uninhabitable. See RSA 540:13-d (2007). They also attempted to testify to facts underlying their counterclaims under RSA chapter 540-A. The trial court, however, prevented the tenants from raising either the defense or counterclaims. It ruled: (1) the tenants could not assert counterclaims arising under RSA chapter 540-A against a possessory action based upon nonpayment of rent; and (2) the tenants had "failed to comply with the statutory prerequisites of RSA 540:13-d" by not paying rent "in escrow . . . as it bec[ame] due," and, therefore, could not assert a defense for breach of the warranty of habitability under that statute. Accordingly, the trial court ruled in favor of the plaintiff. On appeal, the tenants argue that the trial court's decision should be reversed because: (1) the plaintiff failed to establish that it was the actual owner of the property; (2) the trial court erroneously prevented them from raising their counterclaims; (3) to the extent that RSA 540:13-d applied, the trial court erroneously construed it as requiring them to have previously paid rent into escrow; and (4) Bernard failed to comply with District Court Rule 1.3(D). Resolution of this case requires us to construe several statutory provisions. In matters of statutory interpretation, we are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. In the Matter of Carr & Edmunds, 156 N.H. 498, 503-04 (2007). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. at 504. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We also interpret a statute in the context of the overall statutory scheme and not in isolation. Id. We review the trial court's interpretation of a statute de novo. Hutchins v. Peabody, 151 N.H. 82, 84 (2004). The tenants first argue that the plaintiff failed to meet its burden of proving that it was the actual owner of the property. RSA 540:12, entitled "Possessory Action," provides that "[t]he owner, lessor, or purchaser at a

3

mortgage foreclosure sale of any tenement or real estate may recover possession thereof from a lessee, occupant, mortgagor, or other person in possession, holding it without right, after notice in writing to quit the same as herein prescribed." The plaintiff filed a writ seeking possession of the property. Thus, to prevail in this action, the plaintiff was required to prove that it was the "owner, lessor, or purchaser at a mortgage foreclosure sale" of the property. RSA 540:12. The record, however, contains no evidence demonstrating that the plaintiff met any of these requirements. Bernard never testified that the plaintiff was the actual owner of the property. Although Bernard attached an affidavit to the writ in which she certified that the plaintiff was the owner of the property, that affidavit was not admitted as evidence at the hearing. Indeed, the trial court neither referenced the affidavit nor made a finding that the plaintiff owned the property based upon this affidavit. Rather, the trial court appears to have proceeded with the hearing on the assumption that the plaintiff was the property's owner. To the extent the trial court may have relied upon this affidavit to find that the plaintiff was the owner of the property, it erred. The so-called affidavit merely states that Bernard was "certify[ing]" that the plaintiff was the owner of the property, but does not indicate that it was notarized or otherwise signed under oath. Further, the affidavit's assertion that the plaintiff is the owner of the property is unsupported by any other evidence in the record, including testimony by Bernard. Accordingly, because the plaintiff failed to meet its burden of establishing that it was the owner of the property, as required under RSA 540:12, we reverse. The tenants next argue that the trial court erroneously prevented them from raising their counterclaims, and misconstrued RSA 540:13-d as requiring them to have paid rent into escrow before they could assert the statutory defense for violations of the standards of fitness. Our holding that the plaintiff failed to meet its burden of proving ownership of the property would normally make it unnecessary for us to address these questions. These issues, however, may arise again, not only in other unrelated landlord-tenant actions, but also with respect to another action concerning these tenants, this property, and the actual owner of the property. See Appeal of Seacoast Anti-Pollution League, 125 N.H. 708, 719 (1985). Thus, in the interest of judicial economy, we will address these questions. Id. Several statutory provisions "provide the landlord with a summary process for obtaining a writ of possession in the district courts," and "provide[] tenants with defenses based on landlord violations of their obligations." 17 C. Szypszak, New Hampshire Practice, Real Estate

Download 2007-0625, LIAM HOOKSETT, LLC v. ROBERT BOYNTON & a..pdf

New Hampshire Law