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Mark Diminico v. Centennial Estates Cooperative, Inc.

May 28, 2019 - Brief

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
Case Number: 2018-0490
Mark DiMinico
Plaintiff-Appellee
v.
Centennial Estates Cooperative, Inc.
Defendant-Appellant
Rule 7 Appeal from Decision of the Rockingham County Superior Court
ANSWERING BRIEF OF DEFENDANT/APPELLANT,
CENTENNIAL ESTATES COOPERATIVE, INC.
On the Brief:
Robert M. Shepard, Esquire, Bar No. 2326
SMITH-WEISS SHEPARD, P.C.
47 Factory Street
P.O. Box 388
Nashua, NH 03060
(603) 883-1571
rms0, nhlaw-nashua.com
Oral Argument:
Robert M. Shepard, Esquire, Bar No. 2326
ANSWER
On Page 7 of the Brief filed by Mark DiMinico, the Plaintiff/Appellee raises for the
first time a claim pursuant to RSA 540-A:2, entitled "General Prohibition" and a claim for
damages pursuant to RSA 540-A:4, IX (a), entitled "Remedies". These claims were never
pled in the underlying case before the Superior Court. Mr. DiMinico did not make any RSA
540-A claim, either in the Petition for Declaratory and Injunctive Relief filed with the
Rockingham County Superior Court or during the trial for this case. As such, this Court
cannot consider these claims. See LaMontagne Builders v. Brooks, 154 N.H. 252, 258, 910
A.2d 1162 (2006) ("We have long held that 'we will not consider issues raised on appeal
that were not presented in the lower court.")
On Page 12 of the Brief filed by Mr. DiMinico, reference is made to a statutory right
given to tenants under RSA 540-A:2 whereby a landlord shall not willfully violate a tenant's
right to quiet enjoyment. Again, this issue was not argued nor pled in the Superior Court by
Mr. DiMinico. Id.
On Page 13 of the Brief filed by Mr. DiMinico, Mr. DiMinico again claims that the
matter should have been decided under RSA 540-A. Id.
On Page 19 of the Brief filed by Mr. DiMinico, Mr. DiMinico argues that the Lease
entitled him to a certain quality of leasehold; the Cooperative unreasonably trespassed on that
right in bad faith. Bad faith was not alleged in the underlying pleadings in this matter. Id.
On Page 20 of the Brief filed by Mr. DiMinico, Mr. DiMinico argues that the actual
work performed by the Cooperative was abusive. Again, this was not pled in the underlying
action. Id.
Finally, on Page 26 of the Brief filed by Mr. DiMinico, he argues that attorney's fees
should have been awarded pursuant to RSA 540-A. This statute was never pled by the Mr.
DiMinico in this matter. As such, no claim can be made under this statute. Id.

CERTIFICATE OF SERVICE

I, Robert M. Shepard, Esquire hereby certify that the Answering Brief on behalf of the Defendant/Appellant, Centennial Estates Cooperative, Inc., was electronically served this 28th day of May, 2019 to William B. Parnell, Esquire, opposing counsel. Robert. Shepard NH Bar #2326

Case records

Open case page

Docket: 2018-0490

Date Record Text Type Party PDF
March 11, 2020 Mark Diminico v. Centennial Estates Cooperative, Inc. Opinion Supreme Court Pre-Reporter
September 25, 2019 Mark Diminico v. Centennial Estates Cooperative, Inc. Oral argument text Mark DiMinico; Centennial Estates Cooperative, Inc.
May 28, 2019 Plaintiff-Appellee v. Centennial Estates Cooperative, Inc. Current page Brief Centennial Estates Cooperative, Inc. PDF
April 25, 2019 Plaintiff-Appellee v. Centennial Estates Cooperative, Inc. Brief Mark DiMinico PDF
March 8, 2019 Plaintiff-Appellee v. Centennial Estates Cooperative, Inc. Brief PDF