2008-160, KATHLEEN WASS v. CAROLYN FULLER

The defendant, Carolyn Fuller, appeals an order of the

brief), for the defendant. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

to press. Errors may be reported by E-mail at the following address: Kathleen Wass, pro se, 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. 2008-160 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Laconia 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 locked. p. 2 gas company, who confirmed that the defendant had ordered the tanks to be lock those tanks down.” After the plaintiff protested, he called someone at the

to the tenant including, but not limited to . . . heat . . . [or] gas . . . , whether or

they are tested, for a fee, to ensure their safety.

indirectly, the interruption or termination of any utility service being supplied

plaintiff until the writ of possession in the landlord-tenant case was executed. representing $1,000 per day for the twenty-seven day duration of the condition. order requiring the defendant to restore the gas service and provide gas to the

person was on the premises, the plaintiff requested gas for the apartment. His company, however, filled the order on December 27, and while the delivery pursuant to the gas company’s policy that empty propane tanks be locked until she never notified the plaintiff of this. apartment, and place the account for the apartment in her name. The gas Although she claimed she had placed the service back into the plaintiff’s name, RSA 540-A:3, I, provides: “No landlord shall willfully cause, directly or

See RSA 540-A:4, IX(a); RSA 358-A:10, I (1995).

of the hearing. Accordingly, the trial court awarded the plaintiff $27,000, relief pursuant to RSA 540-A:4 (2007). The district court issued a temporary violation of RSA 540-A:3, I, and that this condition continued through the date defendant had willfully caused the utility to lock the tanks on December 27 in After a hearing on January 23, 2008, the trial court found that the

empty when the delivery person arrived on December 27, and he locked them both the tank which serviced the garage and the tanks which serviced the fuel. According to the defendant, however, the tanks for the apartment were date, she called the company again and instructed it not to unlock the tanks. an account manager from the gas company regarding the plaintiff’s request for company unlock the tanks on Monday, December 31, 2007; however, on that See RSA 540-A:4, VIII. The defendant made arrangements to have the gas

February 22, 2008.

The plaintiff filed the instant petition on December 27, 2007, seeking

requested that, during the week of December 30, 2007, the gas company fill The defendant admitted that she spoke with both the delivery person and

the plaintiff did not appeal. The trial court issued a writ of possession on

Before December 27, 2007, in anticipation of the eviction, the defendant

(2007). Although she filed a notice of intent to appeal on December 31, 2007, unless the plaintiff filed a notice of intent to appeal. See RSA 540:14, I, :20 notice indicated that a writ of possession would issue on January 4, 2008, because of the plaintiff’s nonpayment of rent. See RSA 540:12, :14 (2007). The them not to unlock the tanks.” p. 3 defendant conceded that she later “call[ed] the gas company . . . and t[old]

back into the plaintiff’s name, she failed to notify the plaintiff. Moreover, the

court was required to award $27,000 under the statute. regarding the plaintiff’s request for gas, and despite later putting the service 3 admitted that she spoke with the delivery person and company management locking the tanks pursuant to the defendant’s direct order. The defendant the court no discretion; it must award full statutory damages.

to tenants.” (2007) is “to deter unacceptable landlord conduct rather than to remedy harm without heat because she had electric heaters, the focus of RSA chapter 540-A

and that the condition remained until January 23, 2008. Having so found, the plaintiff could resume gas service by paying the fee to unlock the tanks.

empty, the plaintiff testified that the delivery person told her that he was Carter v. court finds that a landlord has willfully violated RSA 540-A:3, the statute gives

Johnson v. Wheeler, 146 N.H. 594, 596 (2001). Once the district

To the extent the defendant argues that the plaintiff was never actually

N.H. at 475.

the defendant willfully caused the utility to interrupt its service on that date, be no statutory violation as a matter of law after December 31, 2007, when the found that the locking of the tanks on December 27, 2007 was no mistake, that by placing the gas service back into the plaintiff’s name, and, thus, there could N.H. 774, 780 (2003). Upon this record, the trial court could reasonably have of all the fuel in the tanks. The defendant corrected the mistake, she contends, while she submitted proof of such a policy and that the tanks may have been locked pursuant to the gas company’s policy of locking an empty tank, and testimony over that of the defendant, as it did here. See Cook v. Sullivan, 149 was a mistake. Although the defendant testified that the propane tanks were It was within the discretion of the trial court to credit the plaintiff’s

denotes a voluntary and intentional act, and not a mistaken or accidental act.

filing of a notice of intent to appeal her eviction, and the plaintiff’s consumption

record compelled a finding that the interruption of the plaintiff’s gas service See Rood v. Moore, 148 N.H. 378, 379 (2002). We disagree, however, that the

We agree with the defendant that the term “willfully” in RSA 540-A:3, I,

whichever is greater, for each day that the condition continues.

placement of the service in the defendant’s name, the plaintiff’s unanticipated was, at most, a mistake caused by the gas company’s earlier-than-anticipated The defendant argues that the locking of the tanks was not willful, but

(2006). A:4, IX(a); RSA 358-A:10, I; Simpson v. Young, 153 N.H. 471, 474-75, 478

540-A:3, I, entitles the tenant to a separate award of actual damages or $1,000, not the utility service is under the control of the landlord.” A violation of RSA harmless.

p. 4 order to affirmatively provide gas to the plaintiff, the purported error was

and :3 that the trial court finds in resolving the petition on the merits. IX(a), by contrast, defines the civil remedies for any violations of RSA 540-A:2 temporary orders as it deems necessary to protect the parties.” RSA 540-A:4, authority under RSA 540-A:4, VIII to require the defendant in the temporary 4 to an award of $27,000. Accordingly, even assuming that the trial court lacked noted above, this finding is supported by the record, and entitled the plaintiff

petition to enforce the provisions of RSA 540-A:2 (2007) and :3, to “issue such

plaintiff’s gas service for twenty-seven days in violation of RSA 540-A:3, I. As

court, upon the showing of an immediate threat of irreparable harm in a contrary to the parties’ rental agreement. RSA 540-A:4, VIII authorizes the trial executed, that requirement, she contends, was unenforceable because it was order, but because it found that she had willfully caused the interruption of the court did not award damages for the defendant’s contempt of the temporary BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred. supplying the plaintiff with gas, was in violation of its temporary order, the trial

See Kessler v. Gleich, 156 N.H. 488, 494 (2007).

temporary order requiring her to provide gas until the writ of possession was

Although the trial court noted that the defendant, by not affirmatively

Finally, while the defendant did not comply with the trial court’s

Heritage Life Ins. Co., 149 N.H. 216, 221 (2003). construction, it is free to amend the statute as it sees fit. Marceau v. Concord Simpson, 153 N.H. at 479. Of course, if the legislature disagrees with our (2005), and presume that this is the result the legislature intended. See as a whole, Portsmouth Country Club v. Town of Greenland, 152 N.H. 617, 620 penalty, we interpret legislative intent from the words of the statute considered Lachance, 146 N.H. 11, 14 (2001). While this may result in a draconian