2010-469 Joel Harrington v. Metropolis Property Management Group, Inc. &. a.

No. 2010-469

Merrimack

Craig, Deachman & Amann PLLC

into two lease renewals, the first in May 2006 renewing the lease for one year, be held “until the termination of Lessee’s occupancy.” The petitioner entered The lease agreement required the petitioner to pay a security deposit of $875 to residential lease for an apartment at Hollis Commons Apartments in Concord. or are otherwise undisputed. On May 27, 2005, the petitioner entered into a The following facts are drawn from the trial court’s order and the record,

Metropolis Property Management Group, Inc. (Metropolis). We affirm. Superior Court (Smukler, J.) granting the motion to dismiss of respondent LYNN, J. The petitioner, Joel Harrington, appeals an order of the

the brief), for respondent Metropolis Property Management Group, Inc. THE SUPREME COURT OF NEW HAMPSHIRE , of Manchester (W. John Deachman on

Joel M. Harrington, by brief, pro se.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as and the parties’ cross-motions for attorney’s fees. This appeal followed. p. 2 fees. The trial court denied both the petitioner’s motion for reconsideration Metropolis’s request for attorney’s fees and responded with his own request for Metropolis objected, also requesting attorney’s fees. The petitioner objected to granted it on all counts. The petitioner moved for reconsideration, and dismiss the case, and after taking the motion under advisement, the trial court on the merits. At the close of the petitioner’s evidence, Metropolis moved to LLC as parties. The trial court denied the motion and conducted a bench trial seeking to add Hollis Commons Apartments, LLC, and/or Hollis Commons, Slightly more than one month before trial, the petitioner filed a motion

petitioner settled his claims against Carson before trial. add a claim that Metropolis had wrongfully retained his security deposit. The numerous common law and statutory claims. He later amended his lawsuit to The petitioner filed an action against Metropolis and Carson, raising

vacating the apartment, as required by the lease. would not be returned for failure to provide sixty days’ notice in advance of the petitioner by letter, dated September 28, 2009, that his security deposit 2009. He followed through in vacating the premises. Metropolis later informed 2 Metropolis of his intention to vacate the apartment no later than September 6, By letter dated August 6, 2009, the petitioner, through counsel, informed

moving expenses. The petitioner declined this offer as well. refusal on any other unit that became available in the complex and to pay his that it was unacceptable. Metropolis later offered the petitioner a right of first in the complex, but the petitioner declined the offer because he determined after continued complaints, Metropolis offered the petitioner another apartment about these complaints and the noise subsided for a short period. Eventually, On a few occasions, a representative from Metropolis spoke with Carson

Metropolis’s representatives about the noise. at the apartment after Carson moved in and complained many times to petitioner’s. She had a dog. The petitioner documented increased noise levels In August 2006, Lily Carson moved into the apartment unit above the

agreement and payment of rent. related to the apartment and lease, including his entry into the lease Commons Apartments. The petitioner dealt directly with Metropolis in matters Metropolis is a property management company that manages the Hollis

identified “Hollis Commons Apartments, LLC” as the lessor. (Emphasis omitted.) The original lease agreement and both lease renewals on July 1, 2007, and ending “60 days after written notice has been given.” and another in June 2007. The second renewal called for a term commencing p. 3 3

lessor must give a minimum that the legislature intended that thirty days be the minimum RSA 540: p. 3 3 to lease termination by lessees, the petitioner’s argument fails. If a by its title and context. The use of the term “sufficient” in the statute connotes application of the minimum thirty-day notice requirement for evictions under termination by the lessee to be “in the same manner as the lessor,” mandates RSA 540:3, II addresses eviction notices issued by lessors, as evidenced Even assuming, without deciding, that RSA 540:11, calling for

disagree. 540: p. 3 3, II, and thus the term is null and void pursuant to RSA 540:28. We the rent period shall be sufficient” where rent period was monthly). purported statutory right as a tenant to give only thirty days’ notice under RSA May 24 to vacate by July 1 satisfied former statute stating that “notice equal to the lease term requiring sixty days’ notice would constitute a waiver of his 540:28); Carey v. Dunne, 95 N.H. 303, 305 (1948) (holding that notice given on II, and that lease term allowing for such notice was null and void under RSA waiver shall be null and void.” According to the petitioner, the application of (holding that lessor’s seven-day notice to quit did not comply with RSA 540:3, which a tenant waives any of his rights under [RSA chapter 540], and any such provides that “no lease or rental agreement . . . shall contain any provision by necessary for such notice. See Havington v. Glover, 143 N.H. 291, 294 (1998) days’ notice shall be sufficient in all cases” for eviction. RSA 540:28 (2007) period of time 540:3, II (2007) states, in pertinent part, that for residential tenancies, “30 the same effect for all purposes as a notice by the lessor to the lessee.” RSA notice in writing, in the same manner as the lessor, and the notice shall have RSA 540:11 (2007) provides that “[a] lessee may terminate his lease by

interpretation of a statute is a question of law, which we review de court’s interpretation of sections of RSA chapters 540 and 540-A. The Resolution of the petitioner’s argument requires us to review the trial

legislature might have said nor add words that it did not see fit to include. Id. subject to modification. Id. Further, we will neither consider what the Id. When the language of a statute is clear on its face, its meaning is not the legislature as expressed in the words of the statute considered as a whole. Billewicz v. Ransmeier, 161 N.H. 145, 151 (2011). We determine the intent of

petitioner’s argument misapprehends the statutes. entitled to the return of his security deposit, plus statutory damages. The required to give thirty days’ notice to terminate the lease, and that he is sixty days’ notice to terminate the tenancy is null and void, that he was only certain provisions of RSA chapters 5 p. 4 40 and 540-A, the lease term requiring claim for the return of his security deposit. He claims that, by operation of The petitioner first argues that the trial court erred in dismissing his 4

argument on the trial court’s loss of use ruling. covenant of quiet enjoyment. Accordingly, we need not reach the petitioner’s in its ruling that the petitioner failed to establish a willful violation of the Accordingly, the petitioner has failed to demonstrate that the trial court erred efforts does not evince any misunderstanding of the underlying facts. Moreover, the evidence shows that the trial court’s recitation of Metropolis’s grant him a right of first refusal on any available unit in the complex. to move the petitioner into a different apartment in the complex, and later to talking to both Carson and the petitioner about his noise complaints, offering Metropolis’s numerous efforts to address the petitioner’s complaints, including misapprehension of fact by the trial court. Rather, the trial court described based on our review of the record and the trial court’s order, we find no fact regarding when Metropolis offered him a different apartment. However, The petitioner argues that the trial court relied on a mistaken finding of

prove a loss of use of the premises. Metropolis willfully violated his right to quiet enjoyment; and (2) he did not the covenant of quiet enjoyment in two respects: (1) he failed to show that ruled that the petitioner failed to sustain his burden of showing a violation of tenant’s right to quiet enjoyment of his tenancy . . . .” Here, the trial court RSA 5 p. 4 40-A:2 (2007) provides that “[n]o landlord shall willfully violate a

apply the security deposit towards security deposit, RSA 5 p. 4 40-A:7 provides Metropolis with statutory grounds to the premises. We disagree. petitioner relies on RSA 540-A:6 to argue that Metropolis wrongly withheld his burden of proof to the petitioner when it found that there was no loss of use of violated RSA chapter 540-A by withholding his security deposit. Although the petitioner a new apartment, and (2) the trial court erroneously shifted the relied on an incorrect factual determination as to when Metropolis offered the Consequently, we reject the petitioner’s argument that Metropolis has Metropolis did not willfully violate his right to quiet enjoyment, the trial court 540-A:2 (2007). In particular, the petitioner contends that (1) in ruling that claim that Metropolis violated his statutory right to quiet enjoyment. See RSA The petitioner next argues that the trial court erred in dismissing his

thirty days of the lease term. See RSA 5 p. 4 40-A:7, II (2007).

as argued by the petitioner, it is enforceable. to terminate the lease does not conflict with the provisions of RSA chapter p. 5 5 p. 4 40, protection for themselves. Because the lease term requiring sixty days’ notice to a longer notice period than that provided by the statute to secure greater manner.” Nothing in RSA chapter 540 prevents parties to a lease from agreeing minimum of thirty days’ notice to the lessor for termination to be “in the same terminating a lease, then it would follow that the lessee must similarly give a 5

reply brief that are not responsive to the respondent’s brief. See We decline to consider any new arguments raised by the petitioner in his

The decision of the trial court to deny a motion to amend will not be surprise). court’s denial of motion to add parties on grounds of unnecessary delay and fails. denying the motion to amend the complaint. See without deciding, that this issue was properly preserved, the argument also id. at 320-21 (affirming trial motion to add Hollis Commons Apartments, LLC, as a respondent. Assuming, cannot conclude that the trial court unsustainably exercised its discretion in the lessor on the lease and on both renewals. Under these circumstances, we Next, the petitioner argues that the trial court erred in denying his in a deposition days before, yet Hollis Commons Apartments, LLC was listed as petitioner’s motion implied that it was prompted by new information discovered the petitioner moved to add parties and to extend discovery deadlines. The Telegraph Publ’g Co., 1 p. 5 55 N.H. 314, 320 (2007). Just over a month before trial,

to the lease. conclusion that because Metropolis was the lessor’s agent, it was thus a party sense, Metropolis was a “landlord,” and because Black’s Law Dictionary respects. The petitioner has failed to demonstrate a viable legal basis for the “Defendant, as agent of the lessor, is, by definition, the landlord” in all The petitioner argues that because the trial court determined that, in this “landlord,” as defined in RSA p. 5 540-A:1 and :5, includes agents of the lessor. petitioner is mistaken in claiming that, under the trial court’s order, the determined that Metropolis was a proper respondent to those claims because chapter 540-A has no bearing on the petitioner’s contract claims, and the The trial court’s determination that Metropolis was a landlord under RSA In its analysis of the petitioner’s statutory claims, the trial court of the definitions therein to RSA chapter 540-A. See RSA 540-A:1, :5 (2007). New Hampshire statutory law. Both RSA 540-A:1 and :5 limit the application The petitioner’s argument misconstrues both the trial court’s order and

party to the lease agreement. that a “[l]andlord” is “[a]lso called ‘Lessor,’” Metropolis was a lessor and thus a states

must be considered a party to the agreement. petitioner and his wife as the lessees, the petitioner contends that Metropolis Commons Apartments, LLC” as the lessor and either the petitioner or the contract claims. Although the lease agreement and renewals all show “Hollis Metropolis was not a party to the lease agreement, and thus dismissing his Next, the petitioner argues that the trial court erred in finding that p. 6 6

Affirmed

request. appeal on the basis that it is entirely without merit and frivolous. We deny the Supreme Court Rule 23 and RSA 490:14-a (2010) for having to respond to this Finally, the respondent asks that we award it attorney’s fees under

DALIANIS, C.J.