Melanie Phelps v. Bhavnesh Kaushik

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0280, Melanie Phelps v. Bhavnesh
Kaushik, the court on October 12, 2016, issued the following
order:

The defendant’s request in his brief “for an extension of time to complete
his brief” is denied. 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 in part, vacate in part, and remand.

The defendant, Bhavnesh Kaushik (landlord), appeals an order of the
Circuit Court (Tenney, J.), following a four-day final hearing, awarding the
plaintiff, Melanie Phelps (tenant), $58,000 for willfully interrupting her utility
services, see RSA 540-A:3, I (Supp. 2015), and attorney’s fees of $4,649.50.

The trial court found that the landlord initially violated RSA 540-A:3, I,
on June 11, 2014, by shutting off the tenant’s electricity. The trial court
further found that the landlord had received a temporary order requiring that
he restore electrical service on June 12, 2014, and that he did not restore
electrical service until June 17, 2014, five days later. In addition to the
interruption of electrical service, the trial court found that the landlord violated
RSA 540-A:3, I, a second time by shutting off the tenant’s water on June 12,
2014. The trial court found that it had ordered the landlord to restore the
water “immediately” at a hearing on July 8, 2014, and that he did not restore
the water until July 30, 2014, twenty-two days later. Each of these violations,
according to the trial court, was voluntary, intentional, and knowing.

On these findings, the trial court determined that the tenant was entitled
to: (1) $1,000 per day for the initial violations that occurred on June 11 and
12, 2014; (2) $1,000 per day for the five days that the tenant was without
electricity after June 12 and the twenty-two days that she was without water
after July 8; and (3) an award of attorney’s fees. See RSA 540-A:4, IX(a) (Supp.
2015); RSA 358-A:10, I (2009). Additionally, the trial court ruled that, because
the landlord’s actions were voluntary, intentional, and knowing, it was
“required under RSA 358-A:10” either to double or triple the damages award.
Thus, the trial court awarded a total of $58,000, representing $2,000 per day
for twenty-nine days of violations, and attorney’s fees of $4,649.50. Finally,
the trial court dismissed a separate possessory action that the landlord had
brought, in which he sought unpaid rent, see RSA 540:13, III (2007), finding
that the eviction was retaliatory, see RSA 540:13-a (2007), and that the
property was not habitable, see RSA 540:13-d (2007). This appeal followed.
 On appeal, the landlord argues that the trial court erred by: (1) not
allowing him to seek compensation for, or introduce evidence of, damages to
the apartment, which the landlord allegedly discovered after the tenant had
vacated the property during the course of the proceeding, and which the trial
court found he had not separately pleaded; (2) allowing the tenant to withdraw
her RSA 540-A claim based upon an alleged infestation of bed bugs and
rodents; (3) not allowing him to cross-examine the tenant and her husband
regarding their correction, at the close of the hearing, of earlier testimony in
which the tenant had represented that the landlord had received a certain rent
payment; (4) not awarding him unpaid rent; (5) believing testimony of the
tenant and some of her witnesses, and not believing contradictory testimony;
and (6) allegedly being biased in favor of the tenant and her counsel, and
prejudiced against him based upon his ethnicity. Any remaining issues raised
in the landlord’s brief are not sufficiently developed to warrant judicial review.
State v. Blackmer, 149 N.H. 47, 49 (2003). Issues that he has raised in his
notice of appeal that he has not briefed are waived. Id.

The trial court has broad discretion to manage the proceedings before it.
Achille v. Achille, 167 N.H. 706, 713 (2015). Its discretion includes resolving
disputes over the admissibility of evidence, N.H. Dep’t of Transp. v. Franchi, 163 N.H. 797, 803 (2012), and allowing a party to amend his or her pleadings
so as to assert a new claim, Sanguedolce v. Wolfe, 164 N.H. 644, 648 (2013).
To establish an unsustainable exercised of discretion, the landlord must show
that the trial court’s ruling was clearly untenable or unreasonable to the
prejudice of his case. See Achille, 167 N.H. at 713; Franchi, 163 N.H. at 803.

We will uphold the trial court’s findings unless they lack evidentiary
support or are erroneous as a matter of law. Randall v. Abounaja, 164 N.H.
506, 508 (2013). In reviewing the trial court’s findings of fact, we defer to its
judgment in resolving conflicts in testimony, evaluating the credibility of
witnesses, and determining the weight to be assigned to the evidence
presented. In the Matter of Aube & Aube, 158 N.H. 459, 465 (2009). Indeed,
the trial court is free to accept or reject, in whole or in part, the testimony of
any party, and is not required to believe even uncontested evidence. Id. at
466.; see Wass v. Fuller, 158 N.H. 280, 283 (2009). Our inquiry is to
determine whether the evidence presented at trial reasonably supports the trial
court’s findings, and then whether its decision is consonant with applicable
law. Randall, 164 N.H. at 508.

We note that, to the extent the landlord is challenging the dismissal of
his possessory action and unpaid rent claim, he did not file a separate
discretionary appeal, in accordance with our order of June 2, 2015, from the
dismissal of the possessory action. Accordingly, the landlord is limited in this
appeal to challenging the award of damages and attorney’s fees pursuant to
RSA 540-A:4, IX(a) and RSA 358-A:10, I.

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 As the appealing party, the landlord has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s order, the landlord’s challenges to that order, the
relevant law, and the record submitted on appeal, we conclude that the
landlord has not demonstrated reversible error as to the specific issues he has
raised in his brief. See id. We note that, with respect to the landlord’s
arguments that the trial court was biased, based upon our review of the entire
transcript, we cannot say either that a reasonable person would have
questioned the trial judge’s impartiality, or that any factor that would have per
se disqualified the trial judge was present. See State v. Bader, 148 N.H. 265,
268-71 (2002).

We conclude, however, that the trial court erred by ruling that, under
RSA 358-A:10, the tenant was entitled to enhanced damages because the
landlord’s actions were voluntary, intentional, and knowing. In Simpson v.
Young, 153 N.H. 471, 475-77 (2006), we rejected a tenant’s argument that RSA
358-A:10, read together with RSA 540-A:4, IX, entitled the tenant to enhanced
damages. In rejecting this argument, we observed that, although RSA 540-A:4,
IX(a) subjects a landlord who has violated RSA 540-A:3 “to the civil remedies
set forth in RSA 358-A:10,” RSA 358-A:10 entitles a plaintiff to double or triple
damages only if the trial court finds a “willful or knowing violation of this
chapter.” RSA 358-A:10, I (emphasis added); see Simpson, 153 N.H. at 476.
Because neither RSA chapter 358-A nor RSA chapter 540-A explicitly classifies
a violation of RSA chapter 540-A as an “unfair or deceptive act or practice” for
purposes of RSA chapter 358-A, we held that the plaintiff was not entitled to
enhanced damages under RSA 358-A:10, I. Simpson, 153 N.H. at 476-77.

In this case, as in Simpson, the tenant did not argue that a violation of
RSA chapter 540-A necessarily falls within the meaning of “unfair or deceptive
act or practice” under RSA 358-A:2 (Supp. 2015). Rather, she simply asserted,
and the trial court ruled, that: (1) “[i]f an act or practice complained of in an
action brought under RSA 540-A:3 is willful or knowing, a court shall award a
prevailing plaintiff as much as 3 times, but not less than 2 times, the damages.
See RSA 358-A:10, I”; (2) “‘[w]illfully’ is defined as a voluntary and intentional
act, as opposed to a mistake or accident”; and (3) because the landlord’s
actions were “voluntary, intentional, and knowing,” enhanced damages were
“required under RSA 358-A:10.” These rulings were contrary to our
interpretation of RSA 358-A:10, I, and RSA 540-A:4, IX(a) in Simpson.

The landlord has not raised this issue. We have discretion, however, to
correct a plain error affecting an appealing party’s substantial rights even if
that party fails to raise the issue at trial or on appeal. Sup. Ct. R. 16-A; see
Randall, 164 N.H. at 511. “To find plain error: (1) there must be an error; (2)
the error must be plain; (3) the error must affect substantial rights; and (4) the
error must seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Randall, 164 N.H. at 510 (quotation omitted).

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 In Randall, we held that the trial court engaged in plain error by
awarding the plaintiff $1,000 per day for multiple days that a violation of RSA
540-A:3, I, continued before the trial court had issued its temporary order. Id.
at 510-11. In so holding, we reasoned that the award was contrary to the plain
language of RSA 540-A:4, IX(a), and that, because it required the landlord to
pay thousands of dollars more than she should have been required to pay, the
trial court’s error resulted in a miscarriage of justice. Id.

Here, because the trial court’s ruling was contrary to RSA 540-A:4, IX(a)
and RSA 358-A:10, I, as construed by Simpson, we conclude that the trial
court erred, and that its error was plain. See Hilario v. Reardon, 158 N.H. 56,
60 (2008) (finding plain error where trial court decision was contrary to a
superior court rule and a prior opinion interpreting that rule). Moreover,
because it resulted in an award that was $29,000 more than it should have
been under Simpson, we conclude that it affected the landlord’s substantial
rights, see id. at 60-61 (error affected substantial rights because it affected the
outcome of the proceeding), and seriously affected the fairness, integrity or
public reputation of the proceedings, see Randall, 164 N.H. at 510-11 (finding
that error resulting in an award that was several thousand dollars more than it
should have been seriously affected the fairness, integrity, or public reputation
of judicial proceedings). Accordingly, we vacate only those portions of the trial
court’s order awarding the tenant double damages under RSA 358-A:10, I, and
remand for further proceedings consistent with this order.

Upon remand, the trial court may address whether a violation of RSA
chapter 540-A falls within the meaning of “unfair or deceptive act or practice”
for purposes of RSA 358-A:2, see Simpson, 153 N.H. at 476-77, and if it
determines that it does, it shall explain its statutory analysis with sufficient
detail to allow for meaningful appellate review. Otherwise, we direct the trial
court to enter judgment in the tenant’s favor in the amount of $29,000 plus
attorney’s fees of $4,649.50.

Affirmed in part; vacated in
part; and remanded.

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

Eileen Fox,
Clerk

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