Exeter River MHP Cooperative, Inc. v. James Dow & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0410, Exeter River MHP Cooperative, Inc.
v. James Dow & a., the court on May 26, 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.

Defendant James Dow (tenant) appeals an order of the Circuit Court
(Weaver, J.) granting the plaintiff, Exeter River MHP Cooperative, Inc. (landlord),
a writ of possession.1 See RSA 205-A:9 (2011) (“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. 2016).

We construe the tenant’s brief to contend that the trial court erred by: (1)
allowing the landlord to “treat[ ] the legal system like a carnival game, choosing
Judges that will allow [it] to win”; (2) not finding that the instant possessory
action was retaliatory, see RSA 540:13-a (2007); and (3) not awarding him
damages as a result of such retaliation, see RSA 540:14, II.

We will not disturb the trial court’s findings 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.

First, we address whether the landlord “attempt[ed] to disregard and
demoralize the Judicial process” by bringing a second possessory action “in
hopes of getting a new Judge.” In March 2016, the landlord brought a
possessory action against the tenant for failure to pay the December 2015 rent.
In that case, the trial court declined to grant the landlord a writ of possession
because “[t]he Notice of Eviction was deficient.” It found that “[t]he tenant denies
having received the notice and the testimony regarding its service was vague and
unpersuasive.” The tenant acknowledges that, although the trial court noted
that the landlord’s failure to notify the tenant of his right to a hearing before the
board of directors “is evidence of the [landlord’s] challenged motivation regarding
this eviction process,” the court’s order was not “based on retaliation.”

1 The other defendant, Jodi Hale, did not participate in the appeal.
 Approximately three weeks after that order, the landlord initiated the
instant possessory action by serving the tenant with an eviction notice and a
demand for four months’ rent, due from January to April 2016. The tenant does
not cite, nor are we aware of, any authority that the previous possessory action
barred the landlord from bringing this subsequent action.

To the extent that the tenant argues that the landlord was seeking a
different judge from the one who presided over the previous possessory action, we
observe that the landlord had no power to assign the matter to a particular judge.
To the extent that the tenant argues that the trial court erred by “not putting
enough weight on [the trial court’s] previous Order and remarks,” he does not
explain how the previous order affected the case at hand.

We note that the tenant does not represent that he cured his prior
arrearages. Accordingly, we conclude that the trial court did not err in
entertaining the instant action.

We next address whether the possessory action was brought in retaliation
for the tenant’s 2015 civil action against the landlord’s board of directors
“personally.” We assume, without deciding, that this argument is preserved.
RSA 540:13-a permits a defense of retaliation against a possessory action
“[e]xcept in cases in which the tenant owes the landlord the equivalent of one
week’s rent or more.”

In this case, the demand was for four months’ rent, and the trial court
implicitly found that the tenant owed that rent. The tenant does not contest that
finding; in fact, on appeal, he concedes that “he did get behind in December of
2015.” The landlord’s agent, whom the trial court found credible, testified that
the tenant had been in arrears since October 2014.

The tenant argues that he “was not behind on his rent” when he filed his
civil action against the landlord’s directors. However, RSA 540:13-a addresses
when retaliation may be a defense to a possessory action. The evidence before
the trial court supported that the tenant was in arrears throughout the
possessory action. Accordingly, we conclude that, in the possessory action, the
tenant was statutorily precluded from raising a defense of retaliation. See RSA
540:13-a. Thus, he was not entitled to damages under RSA 540:14, II, which
authorizes damages only when “the tenant successfully raises the defense of
retaliation.”

Affirmed.

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

Eileen Fox,
Clerk

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