Deborah Cutler v. Daniel Knight & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0409, Deborah Cutler v. Daniel Knight &
a., the court on May 11, 2017, 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, Daniel Knight and Samantha Knight (tenants), appeal
the order of the Circuit Court (LeFrancois, J.) entering a judgment for the
plaintiff, Deborah Cutler (landlord), in an eviction action. See RSA 540:12
(2007). The tenants argue that: (1) the landlord failed to comply with certain
provisions of the lead paint statute, RSA chapter 130-A (2015 & Supp. 2016);
(2) the eviction was retaliatory; (3) the eviction notice failed to provide the
specificity required by statute; and (4) the evidence was insufficient to prove
that they engaged in the conduct alleged in the eviction notice.

The tenants first argue that RSA chapter 130-A “provides the framework
by which lead paint issues involving leased or rented dwelling units occupied
by a child” must be resolved, and that the landlord failed to comply with RSA
130-A:8-a, II, which sets forth eight conditions that a landlord must meet when
evicting a tenant after receiving an order for lead hazard reduction, including
an offer of a suitable replacement dwelling. See RSA 130-A:8-a, II (2015). The
tenants also argue that RSA 130-A:8-a, II(h) requires a landlord to comply with
RSA 540:2, II(f), which allows a landlord to evict a tenant for a lead exposure
hazard only if the landlord abates the problem by a method other than interim
controls or encapsulation, or any other method which may take more than 30
days to perform, or when the landlord removes the dwelling unit from the
residential rental market. See RSA 540:2, II(f) (2007). The tenants further
argue that to allow the landlord to evict them for causing substantial damage
to the premises, see RSA 540:2, II(b) (2007), for having created a lead paint
hazard, would render RSA 130-A:8-a meaningless.

It is a long-standing rule that parties may not have judicial review of
matters not raised in the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H.
248, 250 (2004). The purpose of this preservation requirement is to afford the
trial court an opportunity to correct an error it may have made. In the Matter
of Mannion & Mannion, 155 N.H. 52, 54 (2007). It is the appellants’ burden to
demonstrate that they raised their issues in the trial court. See Bean, 151
N.H. at 250. The tenants have failed to show that they raised these issues in
the trial court. Accordingly, they are not preserved for review. See id.
 The tenants next argue that both RSA 130-A:6-a, II (Supp. 2016) and
RSA 540:13-b (2007) create a rebuttable presumption that an eviction
instituted within six months of receiving notice of a child tenant’s elevated
blood lead level is based upon the elevated blood lead level, and that the
landlord here failed to rebut that presumption. At trial, the tenants argued
that the presumption applied because the landlord served the eviction notice
within a week after receiving the abatement order, not the notice of the child’s
elevated blood lead level. The trial court found that the landlord rebutted the
presumption by proving that the tenants created the lead exposure hazard by
renovating the premises improperly, and that the landlord instituted the action
in order to remediate the problem without further exposing the tenants and
their children to lead paint hazards. We will affirm the trial court’s factual
findings unless they are unsupported by the evidence. Sutton v. Town of
Gilford, 160 N.H. 43, 55 (2010). Tenant Daniel Knight testified that he made
substantial renovations to the property, even after discovering a lead paint
problem, and that neither he nor anyone he hired was trained or certified to
work with lead paint. The landlord, who is Daniel Knight’s mother, testified
that remediation could cost up to $50,000, and that she instituted this action
“for the safety of [her] grandchildren,” who were living in the home. She
testified that she needs to “get the work done,” and that the children cannot
safely live in the house during remediation. We conclude that the record
supports the court’s finding that the landlord rebutted the presumption of
retaliation. See id.

The tenants next argue that the eviction notice was insufficient as a
matter of law because it failed to provide the specificity required by RSA 540:3,
III, which states that “[t]he eviction notice shall state with specificity the
reasons for the eviction.” See RSA 540:3, III (2007). The landlord’s eviction
notice stated the following reasons for the eviction:

1. You or members of your household have caused substantial
damages to the . . . dwelling unit . . . by making repairs to the
premises which have caused lead paint to be dispersed within the
dwelling unit and thus have put your minor children at risk of lead
paint poisoning.

2. You, members of your household and your agents who made
the aforementioned repairs to the dwelling unit . . . are not certified
to do lead paint substance abatement and thus you are in violation
of NH RSA 130-A.

The tenants do not explain why, in their view, the reasons stated in the
eviction notice are insufficiently specific; nor do they allege that they were
prejudiced in preparing for the hearing by any alleged lack of specificity.
Judicial review is not warranted for complaints without developed legal
argument. State v. Blackmer, 149 N.H. 47 (2003). Based upon this record,

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and the lack of developed argument, we conclude that the eviction notice was
sufficient as a matter of law.

Finally, the tenants argue that the evidence was insufficient to prove that
they engaged in the conduct alleged in the eviction notice. To prevail in an
eviction action, a landlord must prove by a preponderance of the evidence that
the tenants engaged in the conduct alleged in the notice as grounds for the
eviction. Nashua Hous. Auth. v. Wilson, 162 N.H. 358, 362 (2011). We review
sufficiency of the evidence claims as a matter of law and uphold the trial
court’s findings and rulings unless they are unsupported by the evidence or
legally erroneous. Id. at 360. We review the evidence in the light most
favorable to the prevailing party, in this case, the landlord. Id.

The trial court found that, as the landlord alleged in the eviction notice,
“the tenants were doing repair work in the premises while living there with
their 7 children, knowing that there was lead paint in the premises, . . . repair
work that resulted in sanding and flaking of paint . . . and . . . in their infant
daughter having unsafe levels of lead in her blood.” The court also found that,
as the landlord alleged in the eviction notice, the tenants did the work “without
proper lead paint training or certification.”

The lead exposure expert from the New Hampshire Department of Health
and Human Services testified that, in his opinion, it would not be hazardous to
live in the premises with children if the tenants “ke[pt] the house clean” and
“ke[pt] up with any of the lead hazards . . . creating the dust.” However, the
evidence showed that the tenants were continuously renovating the property,
creating new lead exposure hazards. The tenants testified that, during
approximately one year of occupancy, they removed windows, put up walls,
took down walls, removed ceilings, painted, insulated, and installed a closet.
Samantha Knight testified that paint was flaking, and that her husband “did
some sanding” in addition to painting. The landlord testified that the bank
inspected the property five times before approving her loan application
because, at each inspection, the renovations were incomplete. The appraisal
report admitted into evidence showed that, in August 2015, the upper level
hallway had an unfinished ceiling, with dangling wires and fixtures, and that
the main level hallway needed drywall repair. Daniel Knight admitted that he
continued to work on the house after June 2015, when he learned about the
presence of lead paint, that he did not participate in lead paint training, and
that he is not certified to work with lead paint.

The landlord testified, and the trial court found, that the tenants decided
what renovations were necessary. She testified that, although she agreed to
have Daniel Knight install new windows, “[h]e kept on going, and going, and
going . . . There was way too much done.” She also testified that she was
unaware of a potential lead paint hazard until February 2016, when she was
contacted by the State for an inspection.

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 Based upon this record, we conclude that the trial court’s findings are
neither unsupported by the evidence nor legally erroneous, see Nashua Hous.
Auth., 162 N.H. at 360, and that the evidence was sufficient to prove that the
tenants engaged in the conduct alleged in the eviction notice, see id. at 362.

Affirmed.

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

Eileen Fox,
Clerk

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