Sally A. Finan & a. v. Sheli Sokorelis & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0257, Sally A. Finan & a. v. Sheli
Sokorelis & a., the court on January 8, 2016, issued the
following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendants, Sheli Sokorelis and William Willhoite (tenants), appeal
an order of the Circuit Court (DeVries, J.), following a hearing, awarding
judgment to the plaintiffs, Sally A. Finan, Richard Kenneth Atwood, and Judy
L. Ducey (landlords), on their eviction action alleging a failure to pay rent. See
RSA 540:2, II(a), :3-:5, :12 (2007 & Supp. 2015). The tenants argue that the
trial court erred by: (1) awarding judgment on a ground other than failure to
pay rent; and (2) not allowing them to raise the defense of retaliation, see RSA
540:13-a (2007).

It is a longstanding rule that parties are not entitled to judicial review of
issues that they did not raise in the trial court. Bean v. Red Oak Prop. Mgmt.,
151 N.H. 248, 250 (2004). Nor will we review issues that were not raised in a
notice of appeal. State v. Blackmer, 149 N.H. 47, 49 (2003); Sup. Ct. R.
16(3)(b). “We generally require issues to be raised at the earliest possible time
because trial forums should have a full opportunity to come to sound
conclusions and to correct errors in the first instance.” Cogswell Farm Condo.
Ass’n v. Tower Group, Inc., 167 N.H. 245, 253 (2015) (quotation omitted). The
trial court must have had the opportunity to consider any issues asserted on
appeal; thus, any issues which could not have been presented to the trial court
prior to its decision must be presented to it in a motion for reconsideration.
See N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002). It is the
burden of the appealing party to provide a record establishing that the issues
raised on appeal were timely raised at trial. See Bean, 151 N.H. at 250.

With respect to whether the trial court erred by awarding judgment on a
ground other than nonpayment of rent, we conclude that, even if the trial court
relied upon a ground other than nonpayment of rent, the tenants failed to
timely raise the issue in the trial court. The record reflects that, although the
ground articulated in the eviction notices was the tenants’ failure to pay rent,
the trial court’s order awarding judgment was on a preprinted form captioned,
“LANDLORD/TENANT ACTION FOR OTHER THAN NON-PAYMENT OF RENT
NOTICE OF JUDGMENT.” Despite the caption, we note that the trial court
specifically found that the tenants were “in arrears” on their rent. The trial
court issued the judgment by notice of decision dated March 27, 2015.

Pursuant to Rule 16(3)(b), the tenants assert that they preserved their
argument that the judgment was awarded on a ground not articulated in the
eviction notice in a post-trial motion to vacate the judgment. Such a motion
should have been filed no later than seven days from March 27, 2015. See
Dist. Div. R. 5.10(A). The tenants did not file their motion to vacate the
judgment, however, until May 22, 2015, long after the deadline had passed,
and nearly a month after they had already appealed to this court. The trial
court correctly found that it lacked jurisdiction to rule on the motion. See
Rautenberg v. Munnis, 107 N.H. 446, 447 (1966) (as a general rule, perfection
of appeal divests trial court of jurisdiction over subject matter of the
proceedings); see also RSA 540:20 (2007) (providing that prior to appeal, trial
court retains exclusive jurisdiction over the case, but that after appeal is filed,
it retains jurisdiction only to collect rent). Because the tenants, by filing their
motion after jurisdiction had vested in this court, effectively deprived the trial
court of an opportunity to correct its alleged error, we conclude that they failed
to preserve their argument that the trial court erred by awarding judgment on
a ground other than nonpayment of rent. See Butland, 147 N.H. at 679.

With respect to whether the trial court erred by not allowing the tenants
to raise the defense of retaliation, we agree with the landlords that the issue
was not articulated in the notice of appeal. See Blackmer, 149 N.H. at 49.
Even if the tenants had raised the issue in the notice of appeal, however, we
likewise agree with the landlords that the defense was not available to the
tenants under RSA 540:13-a because the tenants owed the landlords more
than one week’s rent, and because the alleged retaliation fell outside of the
parameters of a retaliation claim under RSA 540:13-a.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

2