Trailer Home Village Cooperative, Inc. v. Michael Frigon & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0108, Trailer Home Village Cooperative,
Inc. v. Michael Frigon & a., the court on November 30, 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, Michael Frigon and Brooke Tate a/k/a Brooke Frigon,
appeal orders of the Circuit Court (Stephen, J.) denying defendant Tate’s motion
to dismiss for lack of service of process, see RSA 205-A:3 (2011); RSA 540:5
(Supp. 2015), and granting the motion for a writ of possession in favor of the
plaintiff, Trailer Home Village Cooperative, Inc., see RSA 205-A:9 (2014) (“The
provisions of RSA 540 shall apply to tenancies in manufactured housing parks
except where such application would produce a result inconsistent with or
contrary to the provisions of this chapter.”); RSA 540:14 (Supp. 2015). The
defendants contend that the trial court erred by finding that: (1) defendant Tate
was properly served; (2) the demand for rent did not exceed the rent due; and (3)
the charge imposed upon lessees who are not members of the plaintiff was
“reasonable and enforceable.”

We first address whether defendant Tate was properly served. RSA 205-
A:3 provides that “[a] tenancy in a manufactured housing park may be
terminated . . . upon giving notice in writing to the tenant in the manner
prescribed by RSA 540:5.” RSA 540:5 provides that “[a]ny notice of a demand for
rent or an eviction notice . . . may be served upon the tenant personally or left at
his or her last and usual place of abode.”

Strict compliance with the statutory requirements for service of process is
required to provide a defendant with constitutionally sufficient notice of the
action and to vest the trial court with jurisdiction over the defendant. Nault v.
Tirado, 155 N.H. 449, 451 (2007). The defendant’s actual knowledge of
attempted service does not render the service effectual if the process was not
served in accordance with the requirements of the statute. Impact Food Sales v.
Evans, 160 N.H. 386, 396 (2010).

In this case, the plaintiff served defendant Tate by leaving the demand and
eviction notices at the manufactured housing unit owned by her and occupied by
defendant Frigon. Both parties acknowledge that defendant Tate did not live
there. However, a defendant must seek an immediate appeal or waive the ability
to later attack the trial court’s ruling on personal jurisdiction. Mosier v. Kinley, 142 N.H. 415, 423 (1997). Defendant Tate did not immediately appeal the trial
court’s denial of her motion to dismiss due to lack of service. Instead, she
allowed the case to proceed on the merits. Accordingly, we conclude that she
waived her challenge to the trial court’s exercise of jurisdiction over her based
upon defective service of process. See id.

We next address whether the plaintiff’s demand for rent exceeded the rent
due. RSA 205-A:4 (2014) authorizes the termination of a tenancy in a
manufactured housing park for “[n]onpayment of rent, utility charges, or
reasonable incidental service charges.” RSA 205-A:4, I. Pursuant to RSA 540:8
(2007), a landlord’s demand for rent may not exceed “the whole rent in arrears
when demand is made.” See Buatti v. Prentice, 162 N.H. 228, 230 (2011) (stating
landlord has burden of proving strict compliance with RSA 540:8).

In this case, the defendants acknowledge that there was “contradictory
testimony on whether the Demand for Rent included any charges besides rent.”
They then argue, however, that the “Demand for Rent included other charges for
late fees and liquidated damage fees,” without explaining why this is necessarily
the case or why fees whose non-payment may justify the termination of a tenancy
under RSA 205-A:4, I, may not be included in a demand for rent under RSA
chapter 205-A. We conclude that under the circumstances, the defendants have
not adequately developed this argument. Accordingly, we decline to address it.
See State v. Blackmer, 149 N.H. 47, 49 (2003).

Finally, we address whether the charge to lessees who are not members of
the plaintiff are reasonable and enforceable. We will not disturb the findings of
the trial court unless they lack evidentiary support or are erroneous as a matter
of law. Sherryland v. Snuffer, 150 N.H. 262, 265 (2003). Legal conclusions, as
well as the application of law to fact, are reviewed independently for plain error.
Id. Accordingly, 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. Finally, we review questions of law
de novo. Id.

The defendants argue that the non-member charge is “an administrative
fee on . . . utilities expenses” and violates RSA 205-A:6, III (2014), which
prohibits a manufactured housing park that “is billed as a single entity for any
utility service” from “charging . . . tenants an administrative fee in relation to
such utility service, except as permitted by the public utilities commission.” They
base this argument solely upon the fact that the plaintiff encouraged members to
vote for increases in the non-member charge because it hypothesized that non-
members might “abuse” utilities and “willfully inflict increased [utility] costs upon
the Co-Op.” In light of the evidence presented, however, we cannot conclude that

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the trial court was required, as a matter of law, to find that the non-member
charge violated RSA 205-A:6, III.

Affirmed.

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

Eileen Fox,
Clerk

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