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

The defendants, Robert Boynton and Tina LaRochelle

Glahn, III and Adam M. Hamel on the brief), for the defendants. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Wilbur A.

to press. Errors may be reported by E-mail at the following address: Liam Hooksett, LLC, filed no brief.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-675 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hooksett District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 ownership and the notices that were given.

p. 2 she gets past that, she’ll start telling me about

Bernard could represent the plaintiff in the action. matters at issue. Based upon this testimony, the trial court found that Liam Hooksett, LLC at [the] hearing,” and she had personal knowledge of the testimony or however she chooses to do it.

to testify about that, will establish that by deed or assume the representative, to the extent she’s qualified

summarily dismissed by the court.” (Emphasis omitted.) The tenants filed 2

of Liam Hooksett, LLC. And then beyond that, she’ll, if address the issue of her authority to appear on behalf swear in the Plaintiff’s representative. She’ll first

three members, “those members [had] authorized [her] appearance on behalf of

Hooksett, LLC actually owns this property. And I

affidavit “understand[s] that if th[e] certificate is incorrect, th[e] case may be

nonpayment of rent. It further explained:

in proper form. . . . So the way we’ll proceed is I’ll

25, 2007, ordering them to vacate the premises by August 3, 2007. Bernard then testified that she was the plaintiff’s manager, the plaintiff had

they have to establish that the named owner, Liam

owner of the property. The affidavit also stated that the person signing the of Ownership/Tenancy” (affidavit), which certified that the plaintiff was the seeking both unpaid rent and possession of the property based upon amount of $2,350. That same day, Bernard also signed and filed an “Affidavit

Bernard appeared on behalf of the plaintiff, and the tenants appeared And then she has to establish that the notices are

demand for rent. Bernard then sent an eviction notice to the tenants on July

[T]he Plaintiff has to meet the burden of proof and try,

At the beginning of the hearing, the trial court noted that the plaintiff was the tenants, seeking possession of the apartment and unpaid rent in the

The trial court held a merits hearing on September 4, 2007, at which

counterclaims under RSA chapter 540-A (2007). the tenants. On July 10, 2007, Bernard again served the tenants with a se appearances on August 21, 2007, and, in their appearance forms, asserted Lindsay Bernard, the plaintiff’s manager, hand-delivered a demand for rent to pro property) without a lease on a month-to-month basis. On June 4, 2007,

On August 6, 2007, Bernard filed a writ on behalf of the plaintiff against

the tenants have rented an apartment at 1373 Hooksett Road in Hooksett (the The record supports the following facts. Since at least December 2005, p. 3 “Possessory Action,” provides that “[t]he owner, lessor, or purchaser at a

in favor of the plaintiff. warranty of habitability under that statute. Accordingly, the trial court ruled

proving that it was the actual owner of the property. RSA 540:12, entitled

as it bec[ame] due,” and, therefore, could not assert a defense for breach of the 1.3(D). rent into escrow; and (4) Bernard failed to comply with District Court Rule

whole. the legislative intent as expressed in the words of the statute considered as a The tenants first argue that the plaintiff failed to meet its burden of

of the property, the trial court did not address this issue. Hutchins v. Peabody, 151 N.H. 82, 84 (2004). demonstrated, by evidence or testimony, that the plaintiff was the actual owner the statutory prerequisites of RSA 540:13-d” by not paying rent “in escrow . . . isolation. Id. We review the trial court’s interpretation of a statute de novo. interpret a statute in the context of the overall statutory scheme and not in add language that the legislature did not see fit to include. trial court erroneously construed it as requiring them to have previously paid Id. We also statute as written and will not consider what the legislature might have said or meaning to the words used. Id. at 504. We interpret legislative intent from the examining the language of a statute, we ascribe the plain and ordinary In the Matter of Carr & Edmunds, 156 N.H. 498, 503-04 (2007). When

provisions. In matters of statutory interpretation, we are the final arbiters of Resolution of this case requires us to construe several statutory

actual owner of the property. Although Bernard had not previously based upon nonpayment of rent; and (2) the tenants had “failed to comply with counterclaims arising under RSA chapter 540-A against a possessory action defense or counterclaims. It ruled: (1) the tenants could not assert raising their counterclaims; (3) to the extent that RSA 540:13-d applied, the owner of the property; (2) the trial court erroneously prevented them from reversed because: (1) the plaintiff failed to establish that it was the actual On appeal, the tenants argue that the trial court’s decision should be

claimed that an individual named Kevin McCarthy, not the plaintiff, was the June and July 2007. The tenants raised two issues in defense. First, they essence of Bernard’s testimony was that the tenants had failed to pay rent for 540-A. The trial court, however, prevented the tenants from raising either the attempted to testify to facts underlying their counterclaims under RSA chapter and was therefore uninhabitable. See RSA 540:13-d (2007). They also because their apartment violated the standards of fitness for health and safety Second, the tenants attempted to testify that they had withheld rent

tenants concerning the factual circumstances giving rise to the action. The Subsequently, the trial court heard testimony from Bernard and both actual owner of the property.

p. 4 with respect to another action concerning these tenants, this property, and the

may arise again, not only in other unrelated landlord-tenant actions, but also make it unnecessary for us to address these questions. These issues, however, failed to meet its burden of proving ownership of the property would normally

RSA 540:12, we reverse.

defense for violations of the standards of fitness. Our holding that the plaintiff

plaintiff was the property’s owner. appears to have proceeded with the hearing on the assumption that the plaintiff owned the property based upon this affidavit. Rather, the trial court burden of establishing that it was the owner of the property, as required under 4 testimony by Bernard. Accordingly, because the plaintiff failed to meet its the property is unsupported by any other evidence in the record, including

Szypszak,

them to have paid rent into escrow before they could assert the statutory

address these questions.

the trial court neither referenced the affidavit nor made a finding that the

ch. 540 (2007). After the landlord provides the tenant with proper notice, under oath. Further, the affidavit’s assertion that the plaintiff is the owner of see

New Hampshire Practice, Real Estate § 9.07, at 233 (2003); see RSA

tenants with defenses based on landlord violations of their obligations.” 17 C. process for obtaining a writ of possession in the district courts,” and “provide[] from raising their counterclaims, and misconstrued RSA 540:13-d as requiring Several statutory provisions “provide the landlord with a summary RSA 540:12.

125 N.H. 708, 719 (1985). Thus, in the interest of judicial economy, we will

property, that affidavit was not admitted as evidence at the hearing. Indeed, affidavit to the writ in which she certified that the plaintiff was the owner of the plaintiff was the actual owner of the property. Although Bernard attached an the property, but does not indicate that it was notarized or otherwise signed merely states that Bernard was “certify[ing]” that the plaintiff was the owner of that the plaintiff was the owner of the property, it erred. The so-called affidavit

The tenants next argue that the trial court erroneously prevented them “owner, lessor, or purchaser at a mortgage foreclosure sale” of the property.

plaintiff met any of these requirements. Bernard never testified that the

To the extent the trial court may have relied upon this affidavit to find

Thus, to prevail in this action, the plaintiff was required to prove that it was the herein prescribed.” The plaintiff filed a writ seeking possession of the property. possession, holding it without right, after notice in writing to quit the same as

The record, however, contains no evidence demonstrating that the

possession thereof from a lessee, occupant, mortgagor, or other person in mortgage foreclosure sale of any tenement or real estate may recover for health and safety, and the violation materially affects the habitability of the

for residential purposes is in substantial violation of the standards of fitness the tenant. nonpayment, a money judgment shall issue in favor of RSA p. 5 540:13, III, which expressly permitted the tenants to raise the tenant’s counterclaim exceeds the amount of the

plaintiff.

including violating a tenant’s right to quiet enjoyment of his tenancy, p. 5 540-A:2 and RSA 540-A:3 prohibit landlords from engaging in certain actions, under RSA 540:13-d. Under that statute, “when a premises leased or rented Second, the trial court prevented the tenants from raising a defense nonpayment of rent. In so doing, the trial court appears to have overlooked granted in favor of the tenant. If the court finds that arising under RSA chapter 540-A to a possession action based upon See RSA 540:13, III. First, the trial court ruled that the tenants could not assert counterclaims under RSA chapter 540-A, that offset or reduced the amount owed to the required to consider any claim or counterclaim by the tenants, including one Therefore, because the plaintiff sought unpaid rent, the court was statutorily A:3, I. RSA 540-A:4, II gives the tenant a right to seek relief for such violations. 540-A:2, and willfully causing the interruption of utility services, see RSA 540landlord a money judgment.” see RSA possession on the ground of nonpayment of rent, it shall also award the counterclaim that offsets or reduces the amount owed to the landlord. RSA

landlord, judgment in the possessory action shall be

defense under RSA p. 5 540:13-d and counterclaims under RSA chapter 540-A. In this case, the trial court prevented the tenants from asserting a

Id.

In these circumstances, “[i]f the court finds that the landlord is entitled to

and other lawful charges owed by the tenant to the counterclaim exceeds or equals the amount of rent landlord to the tenant, as a result of set-off or the court determines that the amount owed by the

reduces the amount owed to the [landlord].” RSA p. 5 540:13, III (emphases added). consider any defense, claim, or counterclaim by the tenant which offsets or When a “landlord elects to make a claim for unpaid rent, the court shall

Auto, 1 p. 5 52 N.H. 216, 218-19 (2005). make a claim for unpaid rent. See RSA 540:13, III; see also Matte v. Shippee addition to seeking possession of the property, the landlord has the option to upon nonpayment of rent by filing a writ in district court. See RSA 540:13. In RSA 540:2-:5, :12, the landlord may commence a possessory action based counterclaims to the plaintiff’s action.

p. 6 the trial court erred in preventing the tenants from raising any defenses or

required to have paid to the court rent withheld or becoming due. Accordingly, violation of the standards of fitness for health and safety, the tenants were not the trial court ordered a continuance to allow the plaintiff to remedy the alleged

asserted such a defense. Further, because nothing in the record suggests that

tenants, however, were not obligated to have paid rent into escrow before they [they] provided notice of the violation to [the plaintiff].” RSA 540:13-d, I(a). The “prove[] by clear and convincing evidence that, while not in arrears in rent,

interpretation of RSA 540:13-d, II. escrow at any time before such a continuance. The trial court thus erred in its nothing in RSA 540:13-d suggests that a tenant is required to pay rent into

four factors in that statute, which, among other things, required the tenants to

opportunity to remedy the violation. Contrary to the trial court’s ruling, habitability.

raised an affirmative defense under RSA 540:13-d, I, they needed to meet the

See Kline v. Burns, 111 N.H. 87, 92-93 (1971) (recognizing circumstances where a court continues an action to give the landlord an 540:13-d, they also asserted a breach of the common law implied warranty of

tenant to pay into court any rent withheld or becoming due only in those The tenants argue that, in addition to raising a defense under RSA bec[ame] due.” The plain language of RSA 540:13-d, II, however, requires a counterclaims in response to the plaintiff’s action. To the extent the tenants

statutory prerequisites of RSA 540:13-d” by not paying rent “in escrow . . . as it III. Therefore, the tenants were entitled to raise any defenses, claims, or The plaintiff in this case elected to seek unpaid rent under RSA 540:13,

enable the [landlord] to remedy the violation. for a reasonable time not to exceed one month to in part because, in its view, the tenants had “failed to comply with the The trial court prevented the tenants from raising this statutory defense

RSA 540:13-d, II (emphasis added).

due. withheld or becoming due thereafter as it becomes require the [tenant] . . . to pay into court any rent time such continuance is ordered, the court shall

the court may order the [possessory] action continued

Id. at 85. When a tenant raises this affirmative defense, long as the four factors set forth in [RSA 540:13-d, I(a)] have been satisfied.” precludes the landlord from maintaining an action for non-payment of rent so based on non-payment of rent.” Hutchins, 151 N.H. at 84-85. “This defense premises, the tenant has an affirmative defense to an action for possession raised at the earliest possible time.

p. 7 address this issue. the non-lawyer discloses certain information). Accordingly, we need not

the trial court, our longstanding rule is that we do not review matters not

implied warranty of habitability at the trial court. whom the non-lawyer seeks to appear, and (2) an affidavit under oath in which

RSA 540:13-d. While we acknowledge that the tenants were self-represented in again, as we assume that the parties will abide by the rule in future actions.

that the tenants raised a distinct counterclaim for breach of the common law with the clerk of court (1) a notarized power of attorney signed by the party for law implied warranty of habitability. The record, however, fails to demonstrate requirements of RSA 540:13-d to their counterclaim for breach of the common common law implied warranty of habitability and the statutory defense under the trial court had no opportunity to consider the interplay between the before appearing on behalf of the plaintiff. This question is unlikely to arise BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred. characterization either at the hearing or in a motion for reconsideration. Thus,

to appear, plead, prosecute or defend any action for any party, including filing See Dist. Ct. R. 1.3(D)(1) (setting forth requirements for non-lawyers who seek tenants contend, therefore, that the trial court erred in applying the

case based upon Bernard’s failure to comply with District Court Rule 1.3(D)(1) statutory defense under RSA 540:13-d. The tenants never disputed this Finally, the tenants argue that the trial court erred in not dismissing the

Roofing Co., 151 N.H. 391, 394 (2004).

N.H. 764, 786 (2006). Therefore, because the tenants failed to preserve this

be considered in deciding whether there has been a breach of warranty). The against a claim made against him by the landlord; and setting forth factors to instituting an action for breach of warranty or by offsetting his damages violations of fitness. The trial court treated the tenants’ counterclaim as a At the hearing, the tenants generally stated that they were raising

may obtain basic contract remedies of damages, reformation, and rescission by implied warranty of habitability in residential leases; explaining that a tenant