Kristopher Doane v. Brianne Sexton & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0242, Kristopher Doane v. Brianne Sexton
& a., the court on April 25, 2017, issued the following order:

We decline the defendants’ request that the questions presented in the
plaintiff’s brief “be stricken and/or quashed.” 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, Brianne Sexton and Alfred Scamman (tenants), appeal an
order of the Circuit Court (Morrison, J.) granting the plaintiff, Kristopher Doane
(landlord), a writ of possession and setting the tenants’ weekly recognizance upon
appeal at $500. See RSA 540:14 (Supp. 2016). We construe their brief to argue
that: (1) the landlord improperly served the demand for rent and the notice of
eviction, see RSA 540:5 (Supp. 2016); (2) they were not in arrears on the rent
when they were served, see RSA 540:8 (2007); (3) the demand exceeded the
amount of rent due, see id.; and (4) Sexton’s father cured any arrearage within
the time allowed, see RSA 540:9 (2007).

We will not disturb the findings of the trial court unless they lack
evidentiary support or are erroneous as a matter of law. Colonial Village v.
Pelkey, 157 N.H. 91, 92 (2008). The application of law to fact is 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. We assume that the trial court made all subsidiary findings necessary to
support its general findings. See Nordic Inn Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571, 586 (2004). We defer to the trial court’s judgment on issues such
as resolving conflicts in the testimony, assessing the credibility of witnesses, and
evaluating the weight of the evidence submitted at trial. Vincent v. MacLean, 166
N.H. 132, 134 (2014).

We first address whether the demand for rent and the notice of eviction
were properly served. RSA 540:5 provides that “[a]ny notice of a demand for rent
or an eviction notice may be served by any person and may be . . . left at [the
tenants’] last and usual place of abode.” Sexton testified that the landlord left the
notice and demand with her brother, who was not a tenant, at the tenants’ home
while she and Scamman were not there. We conclude that this satisfied the
statute.

We next address the trial court’s implicit finding that the tenants were in
arrears on the rent on December 25, 2015, when they were served. The landlord
testified that he received no rent after the first week of December. The tenants
argued that they paid the December rent in full on November 30 and offered a
photocopy of receipts from several money orders for varying amounts as proof.
However, as the trial court noted, the receipts were arranged in the photocopy so
that, although the landlord’s name and “rent for 12/15” were handwritten on
them, the printed dates and recipients were covered. Even after the trial court
explained the inefficacy of the photocopy, although they provided an additional
exhibit with their motion for reconsideration, the tenants did not provide the
actual receipts. See Vincent, 166 N.H. at 134 (stating that we defer to trial court
regarding credibility of witnesses and weight of evidence).

Accordingly, we conclude that the trial court’s implicit finding that the
tenants were in arrears on their rent when they were served with the demand
was supported by the evidence and not legally erroneous. See Colonial Village,
157 N.H. at 92; Nordic Inn, 151 N.H. at 586.

We next address whether the demand, which was for $1,500, exceeded the
rent owed. The landlord testified that on November 2, 2015, Scamman had
agreed to pay $500 per week in rent each Monday in return for remaining in
possession. He further testified that the tenants had paid this amount in
November and for the first week in December, but had then ceased paying any
rent. Sexton testified that “we didn’t sign anything” and that “it was not me that
agreed.” Scamman did not testify on this issue.

The tenants argue on appeal that the demand for rent was improper
because they had “a year lease [under] which $1500.00 is due monthly” and “do
not have a week to week lease.” However, the record contains only one page from
a lease that does not indicate the parties or show any dates. Furthermore, in
November 2015, the tenants successfully argued to the trial court that, pursuant
to RSA 540:13, VII (2007), the landlord’s acceptance of rent payments pursuant
to an oral agreement, and without written notice of his intention to proceed with
eviction, created a new tenancy. See Miller v. Slania Enters., 150 N.H. 655, 661
(2004).

The trial court’s order that, upon appeal, the tenants’ weekly recognizance
would be $500 demonstrated its implicit finding that the tenants had agreed to
pay $500 a week in rent. See RSA 540:14, I (requiring trial court, “[i]n cases
based upon nonpayment of rent, . . . [to] state the actual amount of the tenant’s
current weekly rent . . . which must be paid into the court if any appeal is
taken”). Furthermore, the court denied the tenants’ motion to reduce the
recognizance amount, which argued that it exceeded the rent. Although the
tenants contend, without support, that the parol evidence rule prohibited the
landlord from adding “new or oral terms to the written contract,” the evidence
supports the trial court’s finding. See Colonial Village, 157 N.H. at 92. To the
extent that the tenants argue that a lease must be in writing, we disagree. See

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RSA 477:15 (2013) (providing that interests in land created without a written
instrument “shall be deemed an estate at will only”).

Thus, the evidence supports the trial court’s implicit finding that, as of
December 25, the tenants were $1,500 in arrears because they failed to pay $500
for each of the weeks beginning December 7, 14, and 21. See Colonial Village,
157 N.H. at 92.

Finally, we address the tenants’ argument that on December 27, 2015,
Sexton’s father paid the landlord $9,000 to cure any arrearage and to satisfy the
tenants’ rent until June 2016. At the hearing, Sexton testified that she had been
told that her father “made a payment” after December 25, but that she did not
have a receipt for it. The landlord testified that he had not received any payment
from the father.

When the tenants moved for reconsideration, they attached a document
that appeared to be an affidavit from the father, bearing an execution date a week
before the hearing and stating that he met the landlord on December 27 at Bank
of America and paid the tenants’ rent through the end of the lease. We note that
December 27, 2015, was a Sunday. The copy of the purported affidavit provided
on appeal also bears a photocopy of a purported receipt, allegedly signed by the
landlord, for $9,000. On appeal, the landlord disputes the authenticity of the
affidavit and receipt. No cancelled check was submitted. The trial court denied
the motion to reconsider without a narrative order.

Whether to receive further evidence on a motion for reconsideration rests
in the sound discretion of the trial court. Lillie-Putz Trust v. Downeast Energy
Corp., 160 N.H. 716, 726 (2010). We review the trial court’s ruling for an
unsustainable exercise of discretion and will not overturn it unless the tenants
can show that the ruling was clearly untenable or unreasonable to the prejudice
of their case. See id. In this case, the trial court implicitly declined to accept the
further evidence in the tenants’ motion for reconsideration. The tenants do not
explain their failure to provide this evidence at the hearing. Accordingly, we
cannot conclude that the trial court’s decision not to consider it was untenable or
unreasonable. See id. Nor can we conclude that the trial court erred by not
crediting Sexton’s testimony that her father paid some amount toward her rent.
See Vincent, 166 N.H. at 134.

Affirmed.

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

Eileen Fox,
Clerk

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