2012-0443, Leigh Mae Friedline & a. v. Eugene Roe

The defendant, Eugene Roe, appeals a decision of the 8th

the defendant. Keefe & Keefe P.A., of Wilton (William Keefe on the brief and orally), for

Donald H. Sienkiewicz, of Milford, by brief and orally, for the plaintiffs. 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 prove that the agreement had been reduced to writing. See RSA 506:1 (2010)

p. 2 defendant to a life estate was unenforceable because the defendant did not

Citing RSA 506:1, the court also concluded that any agreement entitling the owners because Kellogg-Roe had granted her a durable power of attorney. possession. It found that Friedline filed the eviction notice on behalf of both

Following a hearing, the district division awarded the plaintiffs a writ of

jurisdiction in this case is a question of law, subject to de novo review. The ultimate determination as to whether the district division had assignee[s] without consideration, [do] not own title to the house.” the house and barn to [the defendant] in 1999 and therefore plaintiff[s] as . . . title. defendant presented no evidence to support the claims asserted in his plea of

arguing that Brookwood, “as a charitable trust[,] was without authority to give court did not err in declining to transfer the case to superior court because the

of his life.” The defendant also challenged the plaintiffs’ title to the property by ruling on the issues raised in his plea of title. The plaintiffs counter that the to superior court. He further argues that the court exceeded its jurisdiction by title and, consequently, the district division erred by not transferring the case

based on the agreement that [the defendant] could live in the house for the rest because “[t]he 2004 conveyance from [the defendant] to [Kellogg-Roe] was of title, the defendant argued that a constructive trust should be imposed On appeal, the defendant first argues that he properly asserted a plea of

both record owners of the premises did not sign the eviction notice. In his plea

consideration. This appeal followed. Brookwood was not void because the 1999 transfer was for valuable

writ, arguing, among other things, that the case should be dismissed because The defendant filed a brief statement and plea of title in response to the

him in writing.”). The court further found that the defendant’s deed from

a landlord and tenant writ. writing and signed by the party to be charged, or by some person authorized by

Holloway Automotive Group v. Lucic, 163 N.H. 6, 12 (2011). In order to answer

the notice. When the defendant did not vacate the premises, the plaintiffs filed buildings were owned by both Kellogg-Roe and Friedline, only Friedline signed agreement upon which it is brought, or some memorandum thereof, is in premises within thirty days. Although the eviction notice stated that the

(“No action shall be maintained upon a contract for the sale of land unless the 2012, Friedline served him with an eviction notice, ordering him to vacate the

The defendant has lived on the property since he purchased it. In March

Kellogg-Roe gave Friedline a power of attorney to act as his agent.

twenty percent interest in the buildings to plaintiff Friedline. That same year, and barn to his son, plaintiff Kellogg-Roe. In 2009, Kellogg-Roe transferred a p. 3 See also RSA 502–A:34 (2010) (repealed 2011) (conferring on district courts

court in the same manner as if it were originally begun there. but the action may be entered and prosecuted in the superior no further proceedings shall be had before the municipal court,

After the filing of such plea and the entry of such recognizance

RSA 540:18 states:

against him.

halt the possessory proceedings. See Bank of N.Y. Mellon, 161 N.H. at 137 The filing of a plea of title in the district division does not immediately

the action, and the damages and costs which may be awarded

post a monetary bond which may be unsecured or secured. Id. at 138. RSA the county and authorizes the district division to require that the defendant

490-F:3.

and to pay all rent then due or which shall become due pending 3 at the next return day, and to prosecute his action in said court, shall order, to enter his action in the superior court for the county

requires the defendant to promise to enter his action in the superior court for (referring to district court). Rather, we have explained that RSA 540:17

jurisdiction, powers, and duties formerly possessed by municipal courts); RSA

the plaintiff, with sufficient sureties, in such sum as the court

or actions in equity. See Deutsche Bank Nat’l Trust Co. v. Kevlik, 161 N.H. 540 (2007 & Supp. 2013), it does not have jurisdiction to resolve issues of title Although it has the power to entertain possessory actions under RSA chapter the title to the demanded premises he shall forthwith recognize to If the defendant shall plead a plea which may bring in question

161 N.H. at 137. RSA 540:17 states: to follow when a defendant raises an issue of title. See Bank of N.Y. Mellon, RSA 540:17 and :18 (2007) set forth the procedures district divisions are

(1991). 800, 803 (2011); Woodstock Soapstone Co. v. Carleton, 133 N.H. 809, 816

(conferring upon circuit courts powers and duties of former district courts). jurisdiction of district court in civil cases); see RSA 490-F:3 (Supp. 2013) with powers conferred upon it by statute. RSA 502-A:14 (2010) (identifying The district division of the circuit court is a court of limited jurisdiction

modification.” Id. the language of a statute is clear on its face, its meaning is not subject to intent of the legislature as expressed in the words of the statute. Id. “When Mellon v. Cataldo, 161 N.H. 135, 137 (2010). We are the final arbiters of the this question, we need to engage in statutory interpretation. See Bank of N.Y. to the title to the property. See Gibson v. LaClair, 135 N.H. 129, 131 (1991); p. 4 of title because it is evident that the defendant’s first claim involved a challenge We need not decide whether both of the defendant’s claims raised a plea

title. were not entitled to bring a possessory action because they did not hold valid house and barn. Consequently, the defendant maintained that the plaintiffs

essence, that Brookwood – rather than the plaintiffs – was the owner of the

the merits of his plea of title because doing so exceeded the court’s jurisdiction. The defendant further argues that the district division erred by ruling on

live in the house for the rest of his life. The defendant next asserted, in

recognizance. This was error. opportunity to enter his action in superior court, nor did it address the issue of conveyed the property to Kellogg-Roe based upon an agreement that he could Nonetheless, the district division did not provide the defendant with the grounds. He first argued that he had a life estate in the property because he Blevens v. New England Tel. & Tel. Co., 116 N.H. 247, 247 (1976). Here, the defendant challenged the plaintiff’s title to the property on two

action in superior court. See id. Rather, RSA 540:17 places the burden to his action in the superior court and, if so ordered, to enter a recognizance. Cf. division must provide the defendant with an opportunity to promise to enter plea of title, we hold that, when a defendant raises such a claim, the district Consequently, because the district division lacks jurisdiction to decide a

Id. at 137. If the defendant fails to enter his action in the superior court, then

possessory proceedings. See Bank of N.Y. Mellon, 161 N.H. at 138. claim because “issues of title must be resolved in superior court.” Wells Fargo not enter the specified recognizance, then the district division may resume the at 138. If the defendant fails to initiate the action in the superior court or does Deutsche Bank Nat’l Trust Co., 161 N.H. at 802; Bank of N.Y. Mellon, 161 N.H.

district division does not bear the burden to transfer or otherwise enter the We have recognized that once a defendant raises a plea of title, the

pursue their challenge to plaintiff’s title in district court). as ordered by the court, the possessory action in the district division is stayed. Co., 161 N.H. at 804 (noting that defendants would not have been able to Bank v. Schultz, 164 N.H. 608, 611 (2013); see also Deutsche Bank Nat’l Trust the action may be entered in the superior court. Id. Thus, when the plea of district division does not have the authority to address the merits of a title institute the action in the superior court on the defendant. Id. Moreover, the

the possessory proceedings in the district division may resume. See id. at 138.

title is raised in the district division and the defendant files such recognizance

recognizance, no further proceedings shall be had in the district division and 540:18 provides that once such a promise is made by way of the entry of p. 5 Vacated and remanded.

on the eviction notice did not require dismissal of the action.

that the district division correctly ruled that the lack of Kellogg-Roe’s signature

that Kellogg-Roe did not consent to the eviction. Consequently, we conclude argument – beyond the lack of Kellogg-Roe’s signature on the eviction notice – notice] on behalf of both owners of the premises.” The defendant presents no Here, the district division found that “Friedline was filing the [eviction

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

eviction notice for it to be valid.

Friedline. In Moore, we addressed whether three of four owners of property can

equity lies with the superior court, see Wells Fargo Bank, 164 N.H. at 611; nor are we aware of any, requiring that all property owners must sign an property. Because jurisdiction to resolve questions of title and matters of the owners, see id. at 41-42, and the defendant has not cited any authority, addressed, among other issues, the merits of his claim to a life estate in the whether an eviction notice is invalid simply because it is not signed by all of 41. We concluded that they could not. Id. We did not address, however, give a valid eviction notice without the consent of the fourth. Moore, 97 N.H. at

argues that the eviction notice was invalid because it was signed only by Finally, relying upon Moore v. Hill, 97 N.H. 40 (1951), the defendant

on this claim. Consequently, we vacate the district division’s order. Woodstock Soapstone Co., 133 N.H. at 816, the district division erred by ruling

his action in superior court, the district division held a hearing during which it We agree. Rather than providing the defendant with the opportunity to enter