Emily Butler v. Matthew McGrath

In Case No. 2024-0074, Emily Butler v. Matthew McGrath, the court on January 28, 2025, issued the following order: The court has reviewed the written arguments and the record submitted on appeal and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The plaintiff, Emily Butler, appeals a decision of the Circuit Court (Cross, J.), following a hearing, reconsidering its earlier order that had awarded her $33,730 pursuant to RSA 540-A:4 (2021) for alleged violations of RSA chapter 540-B, see RSA 540-B:7 (Supp. 2023), and dismissing her petition. The plaintiff argues that the trial court erred by determining, on reconsideration, that the defendant, Matthew McGrath, did not violate RSA chapter 540-B in a manner that entitled her to damages under RSA 540-A:4, and by waiving the alleged untimeliness of, and granting, the defendant’s motion to reconsider. We affirm in part, reverse in part, and remand.

We first address whether the trial court erred by considering the defendant’s reconsideration motion despite its alleged untimeliness. We note that, although the defendant moved to reconsider more than ten days after the notice of decision on the trial court’s initial ruling, the trial court found that the motion was, in fact, timely because the United States Postal Service had returned the notice as undelivered, and because the defendant promptly moved to reconsider after the trial court re-sent the notice to him. See Dist. Div. R. 1.1 (authorizing circuit court to waive application of any rule as good cause appears and justice requires). Even if the motion to reconsider was untimely, however, “the trial court’s discretionary power to hear an untimely motion may be exercised, and prior exercise may be corrected, as sound discretion may require, at any time prior to final judgment.” In the Matter of Nyhan and Nyhan, 147 N.H. 768, 770 (2002) (quotation omitted).

In this case, the trial court’s initial ruling on the merits of the plaintiff’s RSA 540-A:4 petition had not yet gone to final judgment when the trial court expressly waived any untimeliness of the motion and scheduled it for a hearing, and when the court ultimately issued its ruling on reconsideration.

Moreover, although the defendant filed an appeal concurrently with the motion to reconsider, the record on appeal reflects that the appeal was premature and not yet perfected when the trial court expressly waived any untimeliness of the motion and scheduled the matter for a further hearing. See Jesurum v.

WBTSCC Ltd. P’ship, 169 N.H. 469, 482 (2016) (holding that, because appeal was filed prior to trial court’s ruling on outstanding attorney’s fee issue, the appeal was premature and did not deprive trial court of jurisdiction to act on issue); Rautenberg v. Munnis, 107 N.H. 446, 447 (1966) (stating that this court is vested with exclusive jurisdiction over subject matter of trial court proceeding only after appeal is perfected). We conclude that the trial court did not unsustainably exercise its discretion by waiving any untimeliness in the motion for reconsideration, scheduling the matter for a further hearing, and considering the motion on its merits. See Nyhan, 147 N.H. at 770.

Turning to the plaintiff’s remaining arguments, the trial court’s “findings of fact shall be final but questions of law may be transferred to the supreme court in the same manner as from the superior court.” RSA 540-A:4, V. “By the statute’s plain terms, review is limited and, as to factual findings, it is highly deferential.” Magee v. Cooper, 174 N.H. 647, 650 (2021). We will uphold the trial court’s findings and rulings unless they lack evidentiary support or are otherwise tainted by error of law. Id. at 651. “Our inquiry is to determine whether the evidence presented to the trial court reasonably supports its findings, and then whether the court’s decision is consonant with applicable law.” Id. (quotation and brackets omitted).

RSA chapter 540-B “provides for an eviction process separate from the judicial eviction process outlined in RSA chapter 540” if the property at issue is a “shared facility.” Natal v. GMPM Co., 175 N.H. 74, 77 (2022); see RSA 540- B:3, IV (Supp. 2024) (“Shared facilities governed by this chapter shall not be subject to the eviction process of RSA 540.”).

A “shared facility” means real property rented for residential purposes which has separate sleeping areas for each occupant and in which each occupant has access to and shares with the owner of the facility one or more significant portions of the facility in common, such as kitchen, dining area, bathroom, or bathing area, for which the occupant has no rented right of sole personal use.

RSA 540-B:1, I (2021). The statute requires that “the owner of the leased property live in, and share the use and enjoyment of one or more significant portions of, the facility in common with the occupants.” Natal, 175 N.H. at 78.

To evict an occupant of a shared facility, the statute simply requires the owner to provide a written “notice of termination.” See RSA 540-B:3, I-III (Supp. 2023). An owner may specifically “terminate any tenancy for,” among other things, “behavior of the occupant or guest of any family member of the occupant” that “adversely affects the health or safety of... the owner,” or for “material [breach] of any rental agreement,” by providing the occupant with “[a] written 72-hour notice of termination.” RSA 540-B:3, III. Unlike an “eviction notice” under RSA chapter 540, see RSA 540:2,:3 (2021), nothing in RSA 540- B:3 requires that the written notice of termination “state with specificity the reason for the eviction,” RSA 540:3, III.

After providing the written notice of termination, the owner of a shared facility is entitled to take possession of any areas of the property used by the evicted occupant “at the end of the notice period,” and in so doing, may request assistance of law enforcement for that purpose. RSA 540-B:8 (2021); see Natal, 175 N.H. at 77. The owner is required to “retain and exercise reasonable care in the storage of the personal property of the occupant who has vacated the premises for a period of 3 days after the date on which such occupant has vacated,” and thereafter may dispose of such property without notice to the occupant. RSA 540-B:9 (2021). In the absence of a written agreement to the contrary, any security deposit “shall be returned within 20 days after the occupant has vacated.” RSA 509-B:10 (2021). Violations of RSA chapter 540- B are “subject to the remedies set forth in RSA 540-A:4,” but the “tenant shall not enjoy the remedies set forth in RSA 540-A:4 in regard to tenant lockout if the owner... of the shared facility has complied with the [notice] requirements of RSA 540-B:3.” RSA 540-B:7, I, II (Supp. 2023).

In this case, the parties do not dispute that, for purposes of RSA chapter 540-B, the plaintiff rented a room in a “shared facility” owned by the defendant. On November 7, 2023, the defendant, who was self-represented at the time, provided the plaintiff with a written “eviction notice” on a New Hampshire Judicial Branch form tailored to evictions under RSA chapter 540, checking boxes on the form asserting that the plaintiff “fail[ed] to comply with a material term of the lease,” and that she or members of her family engaged in behavior that “adversely affect[ed] the health or safety of... the landlord.” We note that the New Hampshire Judicial Branch does not, currently, provide a notice of termination form tailored to RSA 540-B:3 for litigants.

With respect to the failure to comply with the lease allegation, the defendant cited a provision of the parties’ “Roommate Agreement” that he claimed the plaintiff had violated. With respect to the behavior adversely affecting health or safety allegation, the defendant wrote that “[t]enant has repeatedly demonstrated erratic troubling behavior,” that “there is a consistent pattern of crossing bound[a]ries set by the landlord,” and that, “[a]s a result, the landlord put a heavy lock on his room door to protect house pet and petfood/and himself.” Notwithstanding the 72-hour written notice of termination provision of RSA 540-B:3, III for both material breach of a rental agreement and conduct that adversely affects the owner’s health or safety, the judicial branch form utilized by the defendant had preprinted language stating that notice of 30 days was required for failure to comply with a material term of the lease, and that seven days was required for conduct adversely affecting health or safety of the landlord, see RSA 540:2, II(c), (d),:3, II. The notice requested that the plaintiff vacate the property on or before November 14, or within seven days.

Evidence in the record establishes that after receiving the written notice, the plaintiff moved out of the defendant’s residence four days later, on November 11, leaving behind a small handful of items of personal property.

When the plaintiff returned on November 12 to collect her remaining personal property, she discovered that the door by which she accessed the property had been deadbolted. The parties then engaged in a series of emails through which the defendant arranged for the plaintiff to return at a specific time on November 13 to retrieve the items, which he had left for the plaintiff at her request on the driveway outside of the residence’s garage. In the emails, the plaintiff additionally notified the defendant that she had arranged to have her mail forwarded. The plaintiff filed her RSA 540-A:4 petition on November 27, 2023, seeking damages from the defendant for, among other things, locking her out of the residence, removing her possessions, and placing them on the driveway. The plaintiff additionally asserted that the defendant had failed to return her security deposit, and that the landlord had cashed her November rent check.

In determining, on reconsideration, that the plaintiff was not entitled to damages pursuant to RSA 540-A:4, the trial court reasoned that the “eviction notice” gave the plaintiff more notice than the 72 hours she was entitled to under RSA 540-B:3, III, and that, although the defendant had locked her out of the residence on November 12, it was “undisputed that plaintiff vacated the property 4 days after service of the eviction notice.” Accordingly, the trial court concluded that the defendant provided the plaintiff sufficient notice under RSA 540-B:3, and that, because RSA 540-B:7, II states that a “tenant shall not enjoy the remedies set forth in RSA 540-A:4 in regard to tenant lockout if the owner... of the shared facility has complied with the [notice] requirements of RSA 540-B:3,” the plaintiff was not entitled to the remedies of RSA 540-A:4.

The trial court additionally reasoned that, although RSA 540-B:10 required the defendant to return the plaintiff’s security deposit no later than 30 days following her vacating the property, the statute does not provide a remedy for that violation, and “because the remedies set forth in RSA 540 and 540-A do not apply to shared facilities when the owner has provided sufficient notice for the eviction,” the court lacked authority to either order the return of the security deposit or pro-rate the plaintiff’s November rent.

On appeal, the plaintiff first argues that the trial court erred by finding that the defendant complied with RSA 540-B:3 and, thus, that she was not entitled to a remedy under RSA 540-A:4 for the allegedly defective notice of termination. Specifically, the plaintiff contends that the notice was insufficient because: (1) it provided notice of seven days, rather than the 72 hours to which RSA 540-B:3, III entitled her for a material breach of a rental agreement or behavior adversely affecting health or safety; and (2) it did not allege specific behavior that adversely affected the owner’s health or safety or articulate what she did to materially breach the agreement. Next, the plaintiff argues that the trial court erred by not finding that she was entitled to damages under RSA 540-A:4 for the defendant’s act of deadbolting the property prior to the expiration of the seven-day period specified in the eviction notice, conduct she claims violated RSA 540-B:8. Finally, the plaintiff argues that the trial court erred by determining that it lacked authority under RSA 540-B:7 and RSA 540- A:4 to order the defendant to return her security deposit or award her prorated rent.

These arguments require that we interpret RSA 540-A:4 and several provisions of RSA chapter 540-B. The interpretation of a statute raises a question of law that we review de novo. Natal, 175 N.H. at 76. We determine legislative intent from the language of the statute considered as a whole, construing statutory language within the context of the overall statutory scheme and not in isolation, and to avoid an absurd or unjust result. See id. at 76-77; Anderson v. Robitaille, 172 N.H. 20, 22-23 (2019). We look first to the language of the statute itself and, if possible, construe the language according to its plain and ordinary meaning. Natal, 175 N.H. at 76. We interpret legislative intent from the statute as written, and do not consider what the legislature might have said or add language that it did not see fit to include. Id. at 76-77.

We reject the plaintiff’s arguments that the written notice provided by the defendant failed to comply with RSA 540-B:3. The notice was in writing, and it specifically notified the plaintiff that the defendant was evicting her for violating an identified “material term” of the parties’ agreement, and for behavior that adversely affected the health or safety of the defendant, reasons falling expressly within the scope of RSA 540-B:3, III. Moreover, the defendant provided the plaintiff seven days’ notice, four days in excess of the 72 hours to which she was entitled under RSA 540-B:3, III.

The notice was not defective merely because it provided more notice than the plaintiff was entitled to receive under RSA 540-B:3, III. The evident purpose of RSA chapter 540-B is to protect the rights of the parties in the termination of a residential tenancy when the rented premises is a “shared facility,” but to provide far less protection to the nonowner-occupant than a tenant would otherwise receive in the termination of a traditional residential tenancy under RSA chapter 540. Under these circumstances, it would be both absurd and unjust to penalize the owner for providing greater protection to the nonowner-occupant than that to which the nonowner-occupant is otherwise entitled. See Anderson, 172 N.H. at 22-23.

Nor was the notice defective because it failed to provide sufficient specificity as to what constituted the breach of the roommate agreement or what behavior adversely affected the defendant’s health or safety. As an initial matter, unlike RSA 540:3, III, nothing in RSA 540-B:3 requires the owner to “state with specificity the reason for the eviction,” and we decline to read such a requirement into RSA 540-B:3 that the legislature did not see fit to include. See Natal, 175 N.H. at 76-77. Moreover, the defendant did articulate the basis for his claims in the notice, citing the provision of the roommate agreement he claimed the plaintiff had violated, and asserting that she had engaged in “erratic” and “troubling” behavior that “cross[ed] bound[a]ries” and prompted him to install a “heavy lock” on his door and to lock himself in his room. On this record, we conclude that the trial court’s determination that the defendant complied with RSA 540-B:3, III was neither lacking in evidentiary support nor tainted by error of law. See Magee, 174 N.H. at 650.

We next address the plaintiff’s argument that the trial court erred by not finding that she was entitled to damages under RSA 540-A:4 for the defendant’s act of deadbolting the property prior to the expiration of the seven- day period specified in the eviction notice. The trial court found that, although the defendant deadbolted the door prior to the expiration of the seven days specified in the notice, it was “undisputed that plaintiff vacated the property 4 days after service of the eviction notice.” Although the plaintiff suggests in her brief that she did, in fact, dispute this fact, she unequivocally testified in a related proceeding that “I actually moved out November 11th,” and the evidence otherwise supports the trial court’s finding that the plaintiff vacated the property on November 11. The plaintiff argues, however, that this fact is not relevant because, under RSA 540-B:8, an owner of a shared facility “may take possession of the separated areas used by the occupant at the end of the notice period.” Accordingly, the plaintiff contends that the defendant was prohibited from locking her out prior to November 14, the end of the “notice period” specified in the written eviction notice. We disagree.

Assuming, without deciding, that “notice period” in RSA 540-B:8 refers to the period specified in the written notice of termination when the notice specifies a greater period than that required by RSA 540-B:3, nothing in RSA 540-B:8, expressly or implicitly, requires the owner to refrain from taking possession of the areas used by the occupant if the occupant vacates the property prior to the end of the notice period. Indeed, such a reading of the statute is inconsistent with RSA 540-B:9, which requires the owner to “retain and exercise reasonable care in the storage of the personal property of the occupant who has vacated the premises for a period of 3 days after the date on which such occupant has vacated,” and may dispose of such property without notice to the occupant.

Under the plaintiff’s reading of RSA 540-B:8, if an evicted occupant vacates a shared facility more than three days prior to the end of the notice period, the owner would be free to dispose of the plaintiff’s personal property after three days, but would not yet be free to take possession of the separated areas used by the occupant. Likewise, the plaintiff’s interpretation is inconsistent with RSA 540-A:4, XII, which provides an affirmative defense to a landlord if the tenants have “abandoned” the property, meaning that they have “physically vacated the premises without the intent to return,” RSA 540-A:4, XII(b), even if they have left behind items of personal property, see RSA 540- A:4, XII(b)(2)(C), (d). We decline to read RSA 540-B:8 in such an incongruous manner. On this record, the trial court’s determination that the plaintiff was not entitled to a remedy under RSA 540-A:4 for the defendant’s act of deadbolting the property was neither lacking in evidentiary support nor tainted by error of law. See Magee, 174 N.H. at 650.

Finally, we address the plaintiff’s argument that the trial court erred by determining that it lacked authority under RSA 540-B:7 and RSA 540-A:4 to order the defendant to return her security deposit or award her prorated rent.

RSA 540-B:7 expressly provides that “[v]iolations of this chapter shall be subject to the remedies set forth in RSA 540-A:4.” RSA 540-B:7, I (emphasis added). Although the statute further states that “[a] tenant shall not enjoy the remedies set forth in RSA 540-A:4 in regard to tenant lockout if the owner... of the shared facility has complied with the requirements of RSA 540-B:3,” RSA 540-B:7, II, this limitation applies only to “the remedies set forth in RSA 540- A:4 in regard to tenant lockout,” and does not limit the remedies that might be available under RSA 540-A:4 for violations of other provisions of RSA chapter 540-B, including the security deposit provisions of RSA 540-B:10.

RSA 540-A:4 generally grants landlords and tenants “the right to seek relief from a violation of RSA 540-A:2 or RSA 540-A:3,” RSA 540-A:4, II, and specifies certain remedies that the trial court may award for violations of RSA 540-A:2 (2021) or RSA 540-A:3 (2021), see RSA 540-A:4, VII, IX. RSA 540-A:4, VII specifically provides: Upon a showing of a violation of RSA 540-A:2 or RSA 540- A:3, I, II, or III, the court shall grant such relief as is necessary to protect the rights of the parties. Such relief may include:.... (b) An award of damages to the plaintiff for the violations of RSA 540-A, breach of warranty of habitability, breach of the covenant of quiet enjoyment or any other claim arising out of the facts alleged in the plaintiff's petition.

The defendant contends that, because this remedy is limited to “violations of RSA 540-A:2 or RSA 540-A:3, I, II, or III,” it cannot apply to a violation of RSA chapter 540-B. According to the defendant, the only remedy in RSA 540-A:4 that applies to a violation of RSA chapter 540-B is the authority of the trial court to grant temporary relief upon a showing of an immediate threat of irreparable harm. See RSA 540-A:4, VIII. However, 540-B:7 expressly extends “the remedies set forth in RSA 540-A:4” to “[v]iolations of this chapter,” RSA 540-B:7, I (emphasis added), not simply “the remedy set forth in RSA 540- A:4, VIII.” Moreover, RSA 540-A:4, in its entirety, including RSA 540-A:4, VIII, expressly concerns remedies for violations of RSA 540-A:2 or RSA 540-A:3. See RSA 540-A:4, II. Accordingly, we decline the defendant’s invitation to read into RSA 540-B:7, I, a limitation to the remedy in RSA 540-A:4, VIII, which the legislature did not see fit to include. See Natal, 175 N.H. at 76-77. Reading the statutes together, we construe RSA 540-B:7 to be extending the remedies that are otherwise available for violations of RSA 540-A:2 and RSA 540-A:3 in RSA 540-A:4 to violations of RSA chapter 540-B.

We conclude, therefore, that pursuant to RSA 540-A:4, VII(b), the trial court had authority to award damages for a violation of RSA 540-B:10.

Likewise, to the extent that “the facts alleged in the plaintiff's petition” gave rise to a claim for prorated rent, RSA 540-A:4, VII(b), the trial court had authority to award the plaintiff damages. We note, however, that in its original order on the merits, which it vacated on reconsideration, the trial court awarded the plaintiff double the security deposit pursuant to RSA 540-A:8 (2021). Because RSA 540-B:7 incorporates the remedies of RSA 540-A:4 only, the trial court lacks authority to award double a security deposit under RSA 540-A:8.

We reverse the trial court’s order on reconsideration to the limited extent that it concluded that it lacked authority to order the defendant to return the plaintiff’s security deposit or to award her prorated rent, and we remand for further proceedings consistent with this order. In all other respects, the trial court’s order on reconsideration is affirmed.

Affirmed in part; reversed in part; and remanded.

Donovan and Countway, JJ., concurred; Abramson, J., retired superior court justice, specially assigned under RSA 490:3, concurred.

Timothy A. Gudas, Clerk