2004-700, JOHN SIMPSON v. DANIEL YOUNG

reconsideration. We denied the plaintiff’s motion, denied the defendant’s in part, reversing in part, and remanding. Both parties filed motions for defendant in contempt. We issued an opinion on December 29, 2005, affirming appealed the trial court’s denial of certain damages and its failure to find the damages in the amount of $1,000 to the plaintiff, John Simpson. The plaintiff

Huot

Daniel Young, in violation of RSA 540-A:3, I-III (Supp. 2005), and awarded DALIANIS, J. The Laconia District Court (, J.) found the defendant,

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

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

and orally), for the plaintiff. Errors may be reported by E-mail at the following address: Law Offices of Brian T. Stern, P.A., of Dover (Brian T. Stern on the brief

errors in order that corrections may be made before the opinion goes to press. No. 2004-700 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Laconia District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as was storing in the house. p. 2 the house for twenty-four hours to retrieve his belongings, which the defendant to the house, and the plaintiff, in turn, gave the defendant permission to enter

Following the hearing, the defendant immediately restored the plaintiff’s access

trial court issued

per day as defendant now knows he has been in violation of RSA 540-A:3.” compliance with the final order “shall subject Defendant to damages of $3,000 plaintiff in the amount of $1,000. In addition, the trial court ordered that non-

belongings; and (4) entered the house without his permission. That day, the

2004, the plaintiff moved for contempt against the defendant, claiming that the

premises without permission from the plaintiff; and (4) to pay damages to the quiet enjoyment of the premises or his personal property; (3) not to enter the

to be shut off; (2) locked him out of the house; (3) seized his personal willfully, and without the permission of the court: (1) caused the plaintiff’s gas under RSA 540-A:4 (Supp. 2005) alleging that on June 25, 2004, the defendant right to return to the house. On June 30, 2004, the plaintiff filed a petition

the house the next day to remove his remaining belongings. On August 3, $1,000 damages award against the overdue rent. The defendant appeared at defendant had delivered an overdue rent notice, stating that he would offset the the rental agreement; (2) not to interfere with the plaintiff’s access to or use or The plaintiff returned to the house on July 30, 2004, to find that the defendant: (1) to restore and maintain all utility services provided as part of A:3, I-III, and issued a “Final Order” pursuant to RSA 540-A:4 requiring the motion for contempt. It found, however, that the defendant violated RSA 540-

June 21, 2004, when the restraining order was lifted, giving the plaintiff the order against him. The plaintiff’s wife continued to reside in the house until 2004, the plaintiff moved out of the house after his wife obtained a restraining record does not indicate whether the parties had a written lease. On April 18,

petition and the motion for contempt. The trial court denied the plaintiff’s On July 29, 2004, the trial court held a hearing on the underlying

ordered that the temporary orders be served in hand on the defendant. defendant had violated the temporary orders. In response, the trial court abode. On July 15, 2004, the plaintiff moved for contempt alleging that the wife rented a three-bedroom house in Barnstead from the defendant. The matter. On July 9, 2004, the sheriff’s department served the defendant at his

ex parte temporary orders and scheduled a hearing on the

withdrew our original opinion. We affirm in part, reverse in part, and remand.

The record supports the following facts. In 2004, the plaintiff and his

I. Background

upon reconsideration, for the first time raised a jurisdictional issue. We motion in part, and ordered supplemental briefing, because the defendant, p. 3 3

constitute a separate violation. the proceedings. Each day that a violation continues shall A:10, including costs and reasonable attorney's fees incurred in

jurisdiction to award damages in excess of $25,000. We agree. award damages for each day of the continuing violation of RSA 540-A: p. 3 3, I-III. I-III. Specifically, the plaintiff argues that the trial court erred by failing to

A: p. 3 3 shall be subject to the civil remedies set forth in RSA 358- Any landlord or tenant who violates . . . any provision of RSA 540-

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

Upon reconsideration, the defendant argues that the district court lacks attorney’s fees and costs pursuant to RSA 540-A:4, IX for bringing this appeal. defendant in contempt of the final order. In addition, the plaintiff requests appeal, we will not review it. Sup. Ct. R. enhanced damages pursuant to RSA p. 3 358-A:10 (1995); and (3) find the awarding only $1,000 in damages for the defendant’s violation of RSA 540-A:3, We now address the plaintiff’s assertion that the trial court erred by

plaintiff’s access to his house, personal property and utility services. uphold the trial court’s finding that the defendant willfully interfered with the court’s conclusion that the defendant violated RSA 540-A: p. 3 3, I-III. Therefore, we the defendant’s failure to appeal or cross-appeal, we are bound by the trial chose to proceed pro se until the plaintiff filed his appellate brief. As a result of Furthermore, we will not relax the standards simply because the defendant Medical Malpractice Joint Underwriting Assoc., 137 N.H. 680, 686 (1993).

A: p. 3 3, I-III. Because the defendant did not appeal the final order or file a cross- (1) award damages for a continuing violation of RSA 540-A:3, I-III; (2) award trial court erred by awarding any damages because he did not violate RSA 540- As a preliminary matter, we address the defendant’s contention that the

II. Violation of RSA 540-A: p. 3 3, I-III

showing upon [ remove his belongings even though Defendant exceeded that permission by

On appeal, the plaintiff argues that the trial court erred by refusing to:

reconsideration. This appeal followed. without permission.” The trial court also denied the plaintiff’s motion for

sic] Sunday, August 1, 2004, unannounced and entered

the plaintiff’s motion for contempt, stating: “Plaintiff gave him permission to defendant had violated the final order. After a hearing, the trial court denied p. 4 4

200 p. 4 4. The defendant also testified that: that prior to the hearing, he last met and spoke with the plaintiff on June 25, personal belongings, and caused his gas to be shut off. The defendant testified

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

the defendant, among other things, locked him out of the house, seized his In his RSA 5 p. 4 40-A:4 petition, the plaintiff alleged that on June 25, 2004,

access to the premises from June 25, 200 p. 4 4, through July 29, 2004. See id. before us compels a finding that the defendant interfered with the plaintiff’s finding as to the date of the initial violation of RSA 540-A:3, I-III, the record of the statute. Id property. We have previously held that landlords are charged with knowledge Appeal of Cote, 139 N.H. 575, 580 (1995). Even in the absence of an express when the defendant began interfering with the plaintiff’s premises or personal reach a certain conclusion, we may decide that issue as a matter of law. issue, but the record reveals that a reasonable fact finder necessarily would unresolved issue; however, when a lower tribunal has not addressed a factual premises or his personal property. We ordinarily would remand this See does not state when the defendant first denied the plaintiff access to the We now turn to the calculation of the damages award. The final order

RSA 5 p. 4 40-A:3, I-III. A:4, IX to award the plaintiff damages for each day that the defendant violated the court.

. at 597. Here, the trial court was required under RSA 5 p. 4 40-

received notice of the trial court’s temporary orders is irrelevant to determining interference with the tenant’s property or premises.” When the defendant Johnson, 1 p. 4 46 N.H. at 594, RSA 540-A:3 “seeks to prohibit the landlord’s Johnson v. Wheeler, 146 N.H. 594, 597 (2001). As we explained in proof of when the defendant received the temporary orders. This was error. The trial court did not award damages for more than one day absent

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

RSA 3 p. 5 58-A:10, I (1995) provides, in pertinent part: 5

chapter 3 p. 5 58-A. has been a “willful or knowing violation” of the Consumer Protection Act, RSA

violation of this the method of competition or the act or practice was a willful or knowing proceedings.” RSA 3 p. 5 58-A:10, in turn, states: “If the court finds that the use of

in the words of the statute. Carter v. Lachance

advanced by the entire statutory scheme. Id mandates an award of enhanced damages only when the court finds that there legislature's intent in enacting them, and in light of the policy sought to be of Mone, 143 N.H. 128, 136 (1998). Thus, RSA 3 p. 5 58-A:10 unambiguously legislature’s use of the term “shall” indicates mandatory enforcement. Petition times, such amount.” (Emphasis added.) We have previously noted that the

chapter, it shall award as much as 3 times, but not less than 2

in RSA 3 p. 5 58-A:10, including costs and reasonable attorney's fees incurred in the . . . any provision of RSA 540-A:3 shall be subject to the civil remedies set forth A:3. This court is the final arbiter of the intent of the legislature as expressed RSA 540-A:4, IX(a) provides that “[a]ny landlord or tenant who violates authorizes enhanced damages for a “willful or knowing violation” of RSA 540yet to decide whether RSA 540-A:4, IX, read in conjunction with RSA 358-A:10,.

1 p. 5 52 N.H. 265, 266 (2005). Our goal is to apply statutes in light of the would lead to an absurd or illogical result. Estate of Gordon-Couture v. Brown, overall objective and presume that the legislature would not pass an act that Id. When statutory language is ambiguous, however, we examine the statute's where possible, we ascribe the plain and ordinary meanings to the words used. construing its meaning we first examine the language found in the statute, and

June 2 p. 5 5, 2004, through July 29, 2004, for a total of thirty-four days. enhanced damages pursuant to RSA 540-A:4, IX and RSA 358-A:10. We have defendant willfully interfered with the plaintiff’s access to the premises from The plaintiff argues that the trial court erred by refusing to award

III. Enhanced Damages Pursuant to RSA 3 p. 5 58-A:10

July 29, 2004, that the defendant remained in violation of RSA p. 5 540-A:3, I-III. $34,000: $1,000 for each of the thirty-four days from June 25, 2004, through of only $1,000. Under RSA 540-A:4, IX(a), the plaintiff could be entitled to We, thus, hold the trial court erred by awarding damages in the amount

premises. Based upon the record, we find, as a matter of law, that the final order, and the defendant immediately restored the plaintiff’s access to the else.” At the conclusion of the July 29, 2004 hearing, the trial court issued the to self-help and had “to go through the eviction process, just like everyone In response, the trial judge stated that the defendant was not entitled to resort p. 6 6

actions for damages in which the damages claimed do not exceed $25,000

and may be enforced as provided therein.” Id. . . .” The defendant argues that under RSA 502-A:14, II, a district court lacks

district courts shall have concurrent jurisdiction with the superior court of civil the district court. RSA 502-A:14, II (1997) provides, in pertinent part: “All violation of RSA chapter 540-A as an “unfair or deceptive act or practice.” See option of bringing his petition for relief in either court, he elected to proceed in that neither RSA chapter 540-A nor RSA chapter 358-A explicitly classifies a enforce the provisions of RSA 540-A:2 and :3. Although the plaintiff had the 358-A. We, thus, decline to further address this issue other than to recognize A:4, I, the district court has concurrent jurisdiction with the superior court to damages to the plaintiff in excess of $25,000. We disagree. Under RSA 540- The defendant argues that the district court lacks jurisdiction to award

IV. Jurisdictional Limitation upon Damages

A:2 shall constitute an unfair trade practice within the meaning of RSA 358-A 205-A:13 explicitly provided that “[a]ny violation of the provisions of RSA 205- the plaintiff is not entitled to enhanced damages pursuant to RSA 358-A:10. Smith v. Shepard Regulation of Manufactured Housing Parks, RSA chapter 205-A, because RSA, 144 N.H. 2 p. 6 62, 264 (1999). Accordingly, we conclude that enhanced damages for a “willful and knowing violation” of the New Hampshire

A is an “unfair or deceptive act or practice” within the meaning of RSA chapter or practice” within the meaning of RSA chapter 358-A. Compare The plaintiff has failed even to argue that a violation of RSA chapter 540-

classification here.

p. 6 643, 650 (1992), we recognized that a prevailing plaintiff could be entitled to B:3 (1995). For example, in Brosseau v. Green Acres Mobile Homes, 135 N.H. Roberts v. General Motors Corp. IX with RSA 261:22, IV-a (Supp. 2005), RSA 205-A:13-a (2000) and RSA 361- 2005). Despite its broad language, however, the Act is not unlimited in scope. RSA 540-A:4, conduct of any trade or commerce within this state.” RSA 358-A:2 (Supp. does not classify a violation of RSA chapter 540-A as an “unfair or deceptive act Furthermore, unlike other New Hampshire statutes, RSA 540-A:4, IX

those types of acts therein enumerated. Roberts, 138 N.H. at 538. those specific transactions, we have held that the Act is applicable only to RSA chapter 540-A. While the Act itself states that it is not limited only to or deceptive act[s] or practice[s].” None explicitly encompasses a violation of legislature has determined constitute “unfair method[s] of competition or unfair fifteen representative categories of unlawful acts or practices that the

unfair method of competition or any unfair or deceptive act or practice in the The Act provides that, “It shall be unlawful for any person to use any p. 7 7

provisions, Town of Henniker is controlling in the instant case. Thus, even (Emphasis added.) Given the nearly identical language in the penalty Cf violation [of RSA 540-A:2 or :3] continues shall constitute a separate violation.” individual violations exceeds the jurisdictional limit upon damages claimed. RSA 540-A:4, IX(a) provides, in pertinent part, that “[e]ach day that a retains jurisdiction even though the aggregate amount of damages awarded for amount of $1,000 each. The State, appearing as amicus constitutionally entitled civil litigants to a jury trial at that time. Id decided. the court-imposed fines totaled in excess of $500, the amount that legislative intervention, we presume that Town of Henniker was correctly litigants were entitled to a jury trial. Id. In the absence of subsequent individual violation did not exceed the monetary limitation above which civil right to a jury trial on any of their violations, since the maximum fine for any aggregate the individual violations, holding that the defendants did not have a maintained a junk yard. Id. at 90. We affirmed the trial court’s refusal to were guilty of 606 separate violations, one for each day that they unlawfully thereof shall constitute a separate offense,” to conclude that the defendants violation of [RSA 236:114] shall be guilty of a violation and each day or fraction We analyzed RSA 236:12 p. 7 7, which provided that “[a]ny person who is in performance). There are rare instances, however, where the district court. at 88-89. court must view the damages award as thirty-four separate awards in the the trial court improperly deprived them of their right to a jury trial because continued, for a total fine of $6,060. The defendants appealed, arguing that 236:114 and fined them ten dollars for each day the charged violation maintained an unlicensed junk yard on their property in violation of RSA In Town of Henniker, the trial court found that the defendants

. Town of Henniker v. Homo, 136 N.H. 88, 90 (1992).

it had no equity jurisdiction to address the tenant’s cross-claim for specific RSA 502-A:14 jurisdictional limit. Specifically, the plaintiff contends that the district court had the power to entertain possessory actions under RSA 540:13, consider each violation in isolation, and not cumulatively, for purposes of the from pursuing earlier filed possessory action in district court because although A:3 constituted a “separate violation,” pursuant to RSA 540-A:4, IX(a), we must N.H. 809, 816 (1991) (holding that superior court properly enjoined landlord is a court of limited jurisdiction. Woodstock Soapstone Co. v. Carleton, 133 landlord/tenant action. We have previously recognized that the district court district court has jurisdiction to award damages in excess of $25,000 in a We have not heretofore been called upon to determine whether the

plaintiff’s position.

plaintiff counters that because each day that the defendant violated RSA 540jurisdiction to award damages to the plaintiff in excess of $25,000. The continuing violation to a maximum of seven days in favor of the current

Senate rejected a statutory scheme that would have limited the damages for a

disproportionate to the harm. We enforce the statute as written, unless it leads

plus any interest and costs to which the plaintiff may be entitled. legislative history accompanying the statute reveals that the New Hampshire statute that could subject a culpable party to a massive penalty. The chapter 540-A, it does confirm that the legislature intentionally fashioned a 146 N.H. at 596. While we need not look to legislative history to interpret RSA engaging in prohibited conduct rather than remedy harm to tenants. Johnson, with the overall intent of RSA chapter 540-A, which is to deter landlords from we explained that the significant penalty for a continuing violation is consistent

The defendant argues that such a result is unfair because the sanction is

court to enter an award of damages for the plaintiff in the amount of $34,000, Id. (citing Dist. & Mun. Ct. R. 4.2). Accordingly, we remand to the district small claims action to waive the right to damages in an amount over $2,500. Furthermore, the rule at issue in Thomas explicitly required a litigant in a violations in relation to the jurisdictional limitation of the district court. forth in RSA 540-A:4, IX(a), and did not involve the aggregation of individual The counterclaim in Thomas did not implicate the penalty provision set

and case, however, are distinguishable from Thomas. district court award in excess of that amount. Id. at 709-10. The instant issue Thomas $2,500, exclusive of interest and costs and, thus, vacated the portion of the judgment resulting from a small claims action was limited to the sum of writ.” Id. (citing Dist. & Mun. Ct. R. 4.2 (1997)). We concluded that a waive the right to claim the amount over $2,500, or proceed by regular civil more than $2,500, exclusive of interest and costs, the litigant must either which provided: “If a litigant files a claim in a small claims action that seeks our holding in Town of Henniker claims. Id. We then analyzed the applicable small claims rule at that time, thirty-four separate awards in the amount of $1,000 each. In accordance with to the informal procedure established by RSA chapter 503 was limited to small hear claims that exceeded $2,500, its authority to adjudicate claims pursuant claims action. Id. We noted that although a district court had jurisdiction to defendants an amount in excess of $2,500 on their counterclaim in a small , we examined whether the district court erred in awarding the argue that the plaintiff waived a total damages award in excess of $25,000. In The defendant relies upon Thomas v. Crete, 141 N.H. 70 p. 8 8 (1997), to

excess of $25,000. of RSA 540-A:3 to prohibit the district court from issuing total damages in

consider each violation of RSA 540-A:3 in isolation, viewing the damages as though the plaintiff filed only one petition for relief, we must, nevertheless, and the entry of judgment.” Black’s Law Dictionary p. 9 a lawsuit, including all acts and events between the time of commencement “proceedings.” “Proceeding,” can mean “[t]he regular and orderly progression of a successful appeal. 9 action at the trial court level. RSA chapter 540-A does not explicitly define

unsuccessful claims. E.g. severable, any fee award should be reduced to exclude time spent on

recover reasonable attorney’s fees and costs, pursuant to RSA 540-A:4, IX, for context of RSA 540-A:4, IX, to include an appeal to this court, or just the “proceeding.” Accordingly, we hold that a prevailing plaintiff is eligible to commencement and the entry of judgment,” and may, thus, constitute a

until after the conclusion of the appeal. See (2005).

on some claims and not on others, and the successful claims are analytically We note that we have stated in other contexts that where a party prevails

proceedings.” This issue turns on whether we construe “proceedings,” in the 358-A:10, including costs and reasonable attorney’s fees incurred in the unambiguous that an appeal may be an “act[ ] . . . between the time of provision of RSA 540-A:3 shall be subject to the civil remedies set forth in RSA Dist. Ct. R. 3.21. It is, therefore, will not enter a “final judgment” until the expiration of the appeal period or legislature as expressed in the words of the statute. Carter decision.” Id. at 574. Pursuant to District Court Rule 3.21, the district court “Entry of judgment” means “[t]he ministerial recording of a court’s final

Johnson

540-A:4, IX, for this appeal. The plaintiff was pro RSA 540-A:4, IX(a) states: “Any landlord or tenant who violates . . . any

As noted above, this court is the final arbiter of the intent of the

without deciding whether the statute mandated such an award on appeal, at 597. In Johnson N.H.S. Jour., we awarded reasonable attorney’s fees for the appeal, attorney’s fees pursuant to RSA 540-A:4, IX for an appeal. Johnson, 146 N.H.

is the sole instance in which we have awarded a prevailing plaintiff

denied his request for attorney’s fees. The plaintiff did not appeal that denial.

Next, the plaintiff requests his attorney’s fees and costs, pursuant to RSA

V. Attorney’s Fees Pursuant to RSA 540-A:4, IX

clarify RSA chapter 540-A if our interpretation is inconsistent with its intent.

896-97, 1149-51, 1243, 1269 (1990). We invite the legislature to

aggrieved party could receive for a continuing violation of RSA chapter 540-A. version, which places no limitations upon the amount of damages that an contempt of the final order. See p. 10 2004, through August 1, 2004, before refusing to find the defendant in

demonstrates that the trial court reviewed the parties’ conduct from July 29, $1,000 damages award and the notice of overdue rent for July. The record plaintiff to contact an attorney to address the plaintiff’s issues about the

.

contempt for entering on August 1, 2004. The trial court also advised the

BRODERICK, C.J.