2008-456, DENNIS TULLEY & a. v. WILLIAM SHELDON & a.

The plaintiffs, Dennis and Patricia Tulley, appeal the order

memorandum of law), for the defendants. Crusco Law Office, PLLC, of Bedford (Kysa M. Crusco on the

Corcoran on the brief), for the plaintiffs. Forman, Corcoran & Associates, P.A., of Londonderry (Thomas J. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. DENNIS TULLEY & a.

No. 2008-456 editorial errors in order that corrections may be made before the opinion goes Derry District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 they were not entitled to fees “relating to hiring dueling experts on mold issues”

p. 2 compromised children.

the plaintiffs had requested $15,040.49 in attorney’s fees, the court ruled that

condition created an unsafe environment for the defendants’ immunedefendants submitted to the local health department, indicating that the mold The expert examined the residence and produced a report, which the

in back rent and $1,500.00 in attorney’s fees for collecting back rent. Although court awarded the plaintiffs $5,894.69 in damages, which included $4,200.00 relatively minor in nature and did not rise to the level of remediation.” The trial

evidence of mold. The defendants themselves then contacted a mold expert.

defendants’ counterclaim, finding that “the mold, which did in fact exist, was

to call another company, Servpro, to view the property. Servpro saw no carpet at the entryway of the residence. Messina Flooring advised the plaintiffs the defendants again contacted the plaintiffs after observing mold under the

trial court ruled in favor of the plaintiffs on both their claim and the 2008. At trial, several witnesses testified including experts for both sides. The was rescheduled several times and finally conducted over two days in April 2

that installed the basement carpet, to check the property. At the end of May,

plaintiffs so notified the defendants and demanded rent for July. housing costs. The trial was originally scheduled for January 25, 2007, but investigate the matter. JAG reported that the property was habitable. The

their regular contractor, William Roussel, and Messina Flooring, the company leased the property to another tenant in October. contacted the plaintiffs, complaining of a mold smell. The plaintiffs contacted defendants to further address the issue. Shortly thereafter, the defendants

counterclaim alleging damages for loss of personal property and emergency association requested that the plaintiffs hire JAG Environmental, Inc. (JAG) to seeking the unpaid rent and other alleged damages. The defendants filed a In November 2006, the plaintiffs filed a writ with the Derry District Court

personal property, which they received at the end of August. The plaintiffs On August 16, 2006, the defendants filed a petition for the return of their to remove it. The plaintiffs left the wet vacuum and a dehumidifier with the personal property behind. They did not pay rent in July, August or September. The defendants vacated the residence on July 14, 2006, leaving their

condominium association to inform them of the potential mold problem. The plaintiffs to notify them of the report. The plaintiffs then contacted the In mid-June, the Town of Londonderry building inspector called the

water in the basement. They contacted the plaintiffs, who used a wet vacuum

In May 2006, after a period of substantial rain, the defendants noticed

The lease ran from February 1, 2006, to July p. 3 31, 2007. plaintiffs $1,400.00 monthly for use of their condominium in Londonderry. 3

provides some support for it.

standard rules of contract interpretation.”

such fees.” established judicial exception to the general rule that precludes recovery of recovery is authorized by statute, an agreement between the parties, or an to determine. Glick v. Chocorua Forestlands Ltd. P’ship, 157 N.H. 240, 247, 248 (2008). examine all of the language in the lease, reading the document as a whole. See meaning of the language used. Id. To resolve the instant dispute, we must the absence of ambiguity, we will determine the parties’ intent from the plain decision on attorney’s fees, and we will uphold the decision if the record by the parties its common meaning as understood by reasonable people and, in and late charges. Id. We will give the language used unless it is an unsustainable exercise of discretion. “A lease is a form of contract that is construed in accordance with the

296, p. 3 301 (2005). review the trial court’s interpretation of a lease de novo. Pope v. Lee, 152 N.H.

190 Elm St. Realty v. Beaudoin, 151 N.H. 205, 206 (2004). We statutory prejudgment interest from the date of the filing of the writ. witnesses. “A prevailing party may be awarded attorney’s fees when that lease. The interpretation of a lease is ultimately a question of law for this court

the lease interest rate (1.5% per month) for three months, and $486.00 in The trial court’s award was based upon its interpretation of the parties’

standard, we are mindful of the substantial deference given to the trial court’s costs; and ( p. 3 3) full interest at the lease rate (1.5% per month) on the unpaid rent Id. In applying this (quotation omitted). We will not overturn a trial court’s award of attorney’s fees award them: (1) the full amount of their attorney’s fees; (2) expert witness Bennett v. Town of Hampstead, 157 N.H. 477, 483 (2008)

when it declined to award them attorney’s fees and costs related to expert awarded the plaintiffs $189.00 in interest under the lease, which represented fees and expert witness costs. The plaintiffs contend that the trial court erred We first address together the plaintiffs’ arguments regarding attorney’s

request for expert witness fees of $2,550.00. On appeal, the plaintiffs argue that the trial court erred in failing to amount of $4,200.00.” For similar reasons, the court also denied the plaintiffs’ p. 3 336:1 (2009); RSA 524:1-a (2007).

with their children’s serious illnesses and related expenses.” The court “downright cruel” to the defendants “in light of what they have been through interest, ruling that such an award would be “fundamentally unfair” and In addition, the court denied the plaintiffs’ request for $ p. 3 3,369.91 in

reasonable given that “the grav[a]m[e]n of the dispute was back rent in the because the lease did not contemplate such fees and such fees were not with the plaintiffs’ possessory action. p. 4 attorney’s fees and costs related to such witnesses and incurred in connection and remand for the trial court to determine the amount of reasonable

trial court’s denial of any attorney’s fees or costs related to expert witnesses

p. 4 attorney’s fees and costs related to expert witnesses. We, therefore, reverse the is not preserved for our review. the plaintiffs ever raised this issue in the trial court, however, and, therefore, it

conclude that the trial court erred in failing to award the plaintiffs reasonable to defend against the defendants’ allegations with expert testimony. Thus, we its reasoning” for the award. The record on appeal does not demonstrate that landlord has a duty to provide a habitable dwelling, the plaintiffs were entitled

attorney’s fees for collecting back rent. 625, 631 (2008). Accordingly, we affirm the trial court’s award of $1,500.00 in

discretion because the trial court “failed to provide any calculations underlying defense to an action for possession based on non-payment of rent.” $4,200. The defendants responded, alleging mold infestation. Because a attorney’s fees for collecting back rent was an unsustainable exercise of materially affects the habitability of the premises, the tenant has an affirmative The plaintiffs contend that the trial court’s award of only $1,500.00 in

habitable dwelling.”).

related to proving habitability. costs incurred” included necessary attorney’s fees and expert witness costs

Here, the plaintiffs brought this action for unpaid rent in the amount of violation of the standards of fitness for health and safety, and the violation

relationship between the parties, but rather, to arrange the leasing of a (“The importance of a lease of an apartment today is not to create a tenurial

negotiating the lease, the parties could have reasonably anticipated that “all habitability and the statutory affirmative defense, we hold that when they were expert witnesses. We disagree. v. Peabody, 151 N.H. 82, 84-85 (2004). In light of the implied warranty of

“when a premises leased or rented for residential purposes is in substantial Comm’n, 118 N.H. 706, 709 (1978). Additionally, under RSA 540:13-d (2007), contained an implied warranty of habitability. See Kane v. N.H. State Liquor entire agreement and not in isolation. See id. at 247. This residential lease

Although the lease states that, as the prevailing party, the plaintiffs are

paragraph did not authorize the award of attorney’s fees or costs related to action, including a reasonable attorney’s fee.” The trial court ruled that this prevailing party shall be entitled to all costs incurred in connection with such either party to enforce the terms hereof or relating to the demised premises, the Paragraph 19 of the lease provides: “In any legal action brought by p. 5 5

1 p. 5 5%-18% per annum added to the outstanding balance.’”

interest rate, the statutory rate applies. applied. If, however, the parties did not clearly articulate a prejudgment If the parties clearly provided an interest rate, that interest rate must be instituted.” damages should be determined at the statutory rate of 10% once suit is $40.00 for each dishonored check. The late charge period is not a interest rate based upon the language of the contract. month on the delinquent amount. Tenant further agrees to pay agrees to pay a late cha[r]ge of $40.00 plus interest at 1% per In the event rent is not paid within 10 days after due date, Tenant Here, the lease agreement includes the following language: payment not made as agreed may result in an additional finance charge of contract stated: “‘Final payment is due at the completion of the project. Final

the applicable prejudgment interest rate, we look first to the parties’ contract. Consistent with our holdings in Mast Road and Lassonde, in determining during the pending lawsuit to prove and collect a claimed debt, their interest

at p. 5 593. We held that the plaintiff was entitled to at least a 15% prejudgment

unpaid rent and late charges for the entire period preceding judgment. included a prejudgment interest rate higher than the statutory rate. The In Lassonde v. Stanton, 1 p. 5 57 N.H. 582 (2008), the subject contract

Id. charges

then due immediately and [debtor-defendants] agree to pay all accrued finance “Unless the parties have clearly provided their own interest rate for damages billing, the plaintiff “may then ask [debtor-defendants] to pay the entire amount responsible for paying the higher interest rate after the demand. We stated: Based upon the plain meaning of the contract, the debtor-defendant was not point of demand, however, the statutory interest rate of 10% applied. Id. paying the 24% annual finance charge until the date of demand. Id. At the based upon the credit agreement, the debtor-defendants were responsible for dispute. The plaintiffs argue that they are entitled to lease rate interest on the immediate payment of the full amount of the unpaid account.” Id. Thus, the period after the defendants put the plaintiffs on notice of a good faith that “the finance charges accrued on the date of plaintiff’s demand for lease rate only for three months and declined to award lease rate interest for Road, 126 N.H. at 197 (quotation omitted). We interpreted “to date” to mean

to date, and all costs of collection, including attorney’s fees.” Mast

at issue provided that if the balance remained unpaid for thirty days after Materials Co. v. Piet, 126 N.H. 194 (198 p. 5 5). In Mast Road, the credit agreement We discussed prejudgment interest in Mast Road Grain & Building

interest. The trial court ruled that the plaintiffs were entitled to interest at the We next address the plaintiffs’ arguments regarding prejudgment reverse and remand for recalculation of the interest due the plaintiffs.

entitled to the contract interest rate on their other claimed damages. We unpaid rent and late charges. We note, however, that the plaintiffs are not entitled to the contract interest rate, as the prejudgment interest rate, on the

limiting the contract interest rate to the three-month period. The plaintiffs are

termination of occupancy. We therefore conclude that the trial court erred in late charges, and dishonored check charges remaining unpaid after “unpaid balances.” They further agreed that “unpaid balances” include rent, BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

by law. subject to 1 ½% interest per month or the maximum rate allowed unpaid balances remaining after termination of occupancy are

of demand. Rather, the parties agreed to the specified interest rate as to any contract here does not limit the contract interest rate to the period prior to date applies “after termination of occupancy.” Unlike the contract in Mast Road, the Thus, the parties here agreed that an interest rate of 1.5% per month

any rent unpaid on the second day of the rental period. Any grace period, and Owner is entitled to make written demand for