Regent Park Associates v. Caleb Baird & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0668, Regent Park Associates v. Caleb
Baird & a., the court on June 23, 2016, issued the following
order:

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

The defendants, Caleb Baird and Ann Walsh (tenants), appeal an order of
the Circuit Court (Moore, J.) denying their motion for a hearing and to strike the
default judgment against them in the possessory action brought by the plaintiff,
Regent Park Associates (landlord). See RSA 540:13 (2007). We construe the
tenants’ brief to argue that the trial court erred by not striking the default
judgment against them or scheduling a hearing because: (1) they were denied
due process under the Federal Constitution when the landlord brought a
possessory action against them without providing them with demand or eviction
notices, see RSA 540:13, I; (2) the landlord failed to comply with statutory
requirements because it did not serve them with demand or eviction notices, see
RSA 540:3, :4 (2007); and (3) the landlord filed its action when it knew that the
tenants were out of the country and would not return until after the appearance
deadline.

We first address the tenants’ constitutional argument. The appellant has
the burden to provide this court with a record sufficient to demonstrate that the
issues on appeal have been raised before the trial court. Town of Atkinson v.
Malborn Realty Trust, 164 N.H. 62, 69 (2012). The trial court must have had the
opportunity to consider any issues asserted by the appellant on appeal; thus, to
satisfy this preservation requirement, 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). These rules are not relaxed for self-represented parties. See In
the Matter of Birmingham & Birmingham, 154 N.H. 51, 56-57 (2006). In this
case, the record establishes that the tenants did not raise a constitutional
argument to the trial court. Accordingly, we decline to address it. See Malborn
Realty, 164 N.H. at 69-70.

We next address the tenants’ statutory argument. RSA 540:13, I
authorizes a landlord to seek possession after the tenant has been notified, in
writing, to quit. RSA 540:5, I (Supp. 2015) provides that a demand for rent or an
eviction notice may be served by delivery to the tenant’s abode and that
“[p]roof of service must be shown by a true and attested copy of the notice
accompanied by an affidavit of service, but the affidavit need not be sworn under
oath.” We will uphold the findings and rulings of the trial court unless they lack
evidentiary support or are legally erroneous. Green v. Sumner Props., 152 N.H.
183, 184 (2005). We defer to the trial court’s judgment on such issues as
resolving conflicts in the testimony, measuring the credibility of witnesses, and
determining the weight to be given evidence. Id.

The tenants argue that the trial court “blindly accept[ed] the landlord’s
argument that . . . [it] had delivered the documents properly” despite their
statement that a “[n]otice to quit was never delivered.” However, the landlord
provided the trial court with copies of eviction notices and demands for rent,
together with affidavits that they had been served upon the tenants by leaving
them at the tenants’ abode prior to their leaving on vacation. In contrast, the
tenants did not support their assertion that they had not received such notices
with an affidavit or otherwise.

Furthermore, the tenants do not contest the landlord’s representation that
their rent check was returned for insufficient funds a number of days before they
left on vacation, that the property manager discussed the dishonored check with
defendant Baird before they left, and that they failed to pay their rent before
leaving and failed to pay the next month’s rent. Thus, we conclude that the trial
court’s implicit finding that the tenants were provided proper notification to quit
is supported by the record and not clearly erroneous. See id.

The tenants do not cite, nor are we aware of, any authority that the
landlord was required to wait for their return from vacation to file its possessory
action. Although the tenants argue that the landlord acted in bad faith by
waiting to file the possessory action until it knew they were out of the country,
the record does not support that they made this argument to the trial court.
Accordingly, we decline to address it. See Malborn Realty, 164 N.H. at 69-70.

Affirmed.

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

Eileen Fox,
Clerk

2