2011-456, Myla Randall v. Nahla Abounaja

The respondent, Nahla Abounaja, appeals an order of ___________________________ brief and orally), for the respondent. THE SUPREME COURT OF NEW HAMPSHIRE Law Office of Joshua L. Gordon on the

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as violation continued. See

p. 2 amount of $1,000 per day for each of the eighteen days that the respondent’s despite this knowledge. The trial court awarded the petitioner damages in the the master bedroom lacked heat but failed to have it repaired for eighteen days

determined that the respondent’s actions were willful because she knew that

later, and that she failed to have them repaired until April 18. The court respondent was aware that the heating units did not work from March 28 or Following the hearing on the petition, the trial court found that the

the heating units worked. enforcement also came to the premises on April 20 and as well discovered that found that the heating units were operational. The director of code

assistant director of code enforcement inspected the premises on April 18, and

14, inquiring why she had not responded to the March 28 letter. The city’s

day. The inspector testified that he sent the respondent another letter on April inspector observed that the petitioner’s master bedroom still lacked heat that the parties, but left because of the marked hostility between them. The

restore and maintain all utility services” to the petitioner’s apartment. not the utility service is under the control of the landlord.” “[T]he term trial court issued a temporary order requiring the respondent “to immediately

supplied to the tenant including, but not limited to . . . heat . . . , whether or The petitioner filed the instant petition on April 12, and, on that day, the

evidentiary support or are erroneous as a matter of law. Miller v. Slania We will not disturb the findings of the trial court unless they lack

directly or indirectly, the interruption or termination of any utility service being RSA 540-A:3, I (2007) provides: “No landlord shall willfully cause, calls. respond to the letter. Nor did she return the inspector’s subsequent telephone novo. Id. applicable law. Miller, 150 N.H. at 659. Finally, we review questions of law de supports its findings, and then whether the court’s decision is consonant with determine whether the evidence presented to the trial court reasonably Enters., 150 N.H. 655, 659 (2004); see RSA 540-A:4, V. Our inquiry is to

A:4, IX(a) (2007) (amended 2010).

problem, giving her fourteen days to remedy it. The respondent did not

On March 28, the inspector sent a letter to the respondent about this

March 23, and met with her on or about March 25.

worked. The inspector called the respondent about this issue on or about petitioner’s master bedroom because neither the radiator nor the electric heater p. 3 3

not work. The petitioner’s brother testified that he had been living with the

respondent was aware that the heating units in the petitioner’s apartment did

There is ample evidence to support the trial court’s finding that the

despite this knowledge.

petitioner’s apartment did not work and that she willfully did not repair them,

court’s findings that the respondent was aware that the heating units in the limit our review to whether there was evidence in the record to support the trial service constitutes “willful interruption” of that service. RSA 540-A: p. 3 3, I. We

without deciding, that a landlord’s willful failure to repair a tenant’s utility

In light of the respondent’s clarification at oral argument, we assume,

every time. . . . I think this is sufficiency of the evidence.

. . . The tenant . . . never notified the [landlord]. The heat worked

aren’t on the record to support the finding. They’re just not there. [Counsel]: Yes, I think that’s what the trial court did, but the facts

that, yes, this time it went . . . past the line? [Court]: . . . In essence, didn’t the trial court make a determination

the problem, . . . yes, the answer to your question is yes. y’know, today you might be mistaken, but tomorrow, if you ignore

So, I think that there’s no choice but to read it as day by day, penalties accrue daily. So, in effect, every day is another violation. [Counsel]: I think that’s built into the statute because the . . .

willfulness, is that right?

that at some point there’s a line where inaction becomes [Court]: Now, you acknowledged at the outset of your argument

of the problem.” Later, her counsel explained:

respondent did not act “willfully,” however, because she was “just idly unaware

“at some point . . . it rises to willful interruption.” Her counsel argued that the position. She conceded that a landlord’s willful failure to correct a condition raised this statutory argument in the trial court, the respondent clarified her

However, at oral argument, when questioned about whether she had ever

“negligent omission,” she argued, did not constitute a willful act. to be interrupted; she did not “cause” the interruption itself. Her merely

instance. She argued that, at most, she merely “allow[ed]” the heating service

because she did not cause the petitioner’s apartment to lack heat in the first In her brief, the respondent argued that her conduct was not “wil[l]ful”

mistaken or accidental act.” Wass, 158 N.H. at 28 p. 3 3. ‘willfully’ in RSA 540-A:3, I, denotes a voluntary and intentional act, and not a was intentional, and, therefore, willful. See

p. 4 reasonably determined that the respondent’s failure to have the units repaired repaired for at least eighteen days. Based upon these findings, the trial court bedroom did not work and that, despite this knowledge, she did not have them

that the respondent knew that the heating units in the petitioner’s master

that the respondent’s violation continued “after issuance of a temporary order RSA 540-A:4, IX(a) also entitled the petitioner to damages for “[e]ach day”

Based upon all of the above evidence, the trial court reasonably found

initial violation.

did nothing for another ten days. evidence that she called an electrician until eleven days later. The electrician

determination that the petitioner was entitled to damages of $1,000 for that that the respondent willfully violated RSA 540-A:3, I, we also uphold its $1,000, whichever is greater.” Because we have upheld the trial court’s finding

March 28 letter that the heating units needed repair, the landlord offered no

RSA 358-A:10 (2009) provides for recovery “in the amount of actual damages or

the call until April 18. Thus, despite knowing at least from the inspector’s called until April 8 to repair the heating units, and that he did not respond to record includes a May 14 letter from an electrician stating that he was not

attorney’s fees incurred in the proceedings.” RSA 540-A:4, IX(a) (Supp. 2012).

committed plain error. See

not repair the units until April 18 despite knowing that they did not work. The

forth in RSA 358-A:10 for the initial violation, including costs and reasonable a violation of RSA 540-A:3, I, entitled the petitioner to “the civil remedies set RSA 540-A:4, IX(a) in effect when the events giving rise to this appeal occurred,

doing, the trial court contravened the plain meaning of RSA 540-A:4, IX(a) and respondent’s violation of RSA 540-A:3, I, continued before April 12. In so trial court awarded the petitioner $1,000 per day for some days that the The record also supports the trial court’s finding that the landlord did temporary order in this case was issued on April 12, 2011. Nonetheless, the work. RSA 540-A:4, IX(a) (emphasis added); see Wass, 158 N.H. at 283. The

28 letter specifically notifying the respondent that the heating units did not

willfully violated RSA 540-A:3, I. therefore, uphold the trial court’s conclusion that the respondent’s conduct

respondent had failed to fix the problem. The record also includes the March occasions and that she finally notified the city of her concerns because the testified that the petitioner called the respondent about this issue on numerous

observed that the heating units worked only intermittently. The brother petitioner in the apartment since January 2011, and that while living there, he the fairness, integrity or public reputation of judicial proceedings.” Id p. 5 preserve the trial court’s error for our review, the error cannot “seriously affect

In effect, the petitioner argues that because the respondent failed to

‘unfair’.” error by the [trial] [c]ourt, is not one where the process can be considered

experienced [respondent] and two experienced legal counsel did not perceive an

[trial] [c]ourt were unfair.” As she explains: “A judicial proceeding in which an raise this issue does not support an allegation that the proceedings in the attention. She contends: “The failure of [the respondent’s] representatives to

each day that a violation continues after argue them on appeal.

fourth prong because the respondent did not bring the error to the trial court’s

State v. Russell affects the fairness, integrity or public reputation of judicial proceedings.”

The statute plainly allows a trial court to award damages of $1,000 per day for errors despite an appellant’s failure to preserve them for our review, or even to We disagree. The plain error rule grants us the discretion to correct trial court The petitioner argues that the trial court’s error does not satisfy the. at 720.

violation damages for any days before the fourth prong, we must decide whether the trial court’s error seriously

damage award was contrary to the express language of the pertinent statute. case warrants the exercise of our discretion to correct it. The trial court’s Under this case-by-case approach, we conclude that the error in this

sentence imposed by trial court was illegal in that it violated pertinent statute). N.H. 719, 721 (2005) (fourth prong of plain error test satisfied because fairness, integrity or public reputation of judicial proceedings.” In the Matter of damages award in this case, therefore, cannot stand. See State v. Taylor, 152

order. The statute does not authorize a trial court to award continuing have been met, we limit our analysis to the fourth prong of that test. “Under the court has issued a temporary light of her apparent concession that the other prongs of the plain error test The petitioner contests only the fourth prong of the plain error test. In

miscarriage of justice would otherwise result. Id

(quotation omitted). We apply the fourth prong “on a case-specific and fact-intensive basis.” Id. must affect substantial rights; and (4) the error must seriously affect the, 159 N.H. 475, 491 (2009) (quotation and brackets omitted).

that were raised neither in the trial court nor on appeal. Id

should be used sparingly, its use limited to those circumstances in which a Brownell & Brownell, 163 N.H. 593, 602 (2012) (quotation omitted). The rule

error: “(1) there must be an error; (2) the error must be plain; (3) the error

The plain error rule allows us to exercise our discretion to correct errors they do not warrant any extended consideration. See

p. 6 We have reviewed the parties’ remaining arguments and conclude that

continuing violation damages. 540-A:3, I, after April 12, the court shall not award the petitioner any continued. If the court finds that the respondent did not willfully violate RSA

petitioner $1,000 per day for each day that the respondent’s violation

violated RSA 540-A:3, I, after April 12, and, if so, the court shall award the remand, the trial court shall determine whether the respondent willfully award and remand for further proceedings consistent with this opinion. On

of RSA 540-A:3, I, continued before April 12, we vacate $17,000 of the damage

Affirmed in part; vacated in

petitioner $1,000 per day for at least some days that the respondent’s violation Because the trial court committed plain error when it awarded the

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

should have been thousands of dollars less.

part; and remanded

321, 322 (1993).

the respondent was required to pay $18,000, even though the damage award not a miscarriage of justice.” We disagree. As a result of the trial court’s error, discretion to correct the trial court’s error in this case because “the result is

Additionally, the petitioner argues that we should not exercise our