Greater New Hampshire Properties, LLC v. Kelly Rousseau

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0171, Greater New Hampshire Properties,
LLC v. Kelly Rousseau, the court on February 16, 2018, issued
the following order:

Having considered the brief and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
Accordingly, we vacate that portion of our May 12, 2017 order stating that the
case would “be scheduled for oral argument before the full court.” We affirm.

The defendant, Kelly Rousseau (tenant), appeals an order of the Circuit
Court (Carroll, J.) granting the plaintiff, Greater New Hampshire Properties, LLC
(landlord), a writ of possession for its non-restricted rental property. See RSA
540:2, I (2007). She contends that the trial court erred by: (1) ruling that she
could not assert a retaliation defense because she owed more than one week’s
rent, see RSA 540:13-a (2007); and (2) conflating the evidentiary presumption
that a possessory action was retaliatory under certain circumstances, see RSA
540:13-b (2007), with the substantive defense, see RSA 540:13-a. She further
contends that RSA 540:13, III (2007) does not preclude a retaliation defense in a
possessory action in which the landlord did not make a claim for unpaid rent.

We first address the tenant’s argument that the trial court erred by ruling
that she was not entitled to a retaliation defense under RSA 540:13-a because
she owed more than one week’s rent. RSA 540:13-a expressly provides that,
“[e]xcept in cases in which the tenant owes the landlord the equivalent of one
week’s rent or more, it shall be a defense to any possessory action” that the
action was in retaliation for certain actions of the tenant, including the tenant’s
“availing [her]self of the procedures of RSA 540:13-d.” RSA 540:13-a, II.

RSA 540:13-d (2007), in turn, provides a defense to an eviction based upon
non-payment of rent when the premises “are in substantial violation of the
standards of fitness for health and safety,” so long as the tenant satisfies certain
requirements. RSA 540:13-d, I. The tenant argues that the prefatory
requirement under RSA 540:13-a that she not be more than one week in arrears
on her rent cannot apply when the basis for her retaliation claim is “availing
[her]self of the procedures of RSA 540:13-d,” RSA 540:13-a, II, because to read
the prefatory language literally under these circumstances would effectively
nullify any retaliation defense based upon following the procedures of RSA
540:13-d. The tenant acknowledges, however, that she did not raise this
argument at trial, asserting that the trial court raised the prefatory requirement
of RSA 540:13-a in its order sua sponte and that, because she was self-
represented in the trial court, she “was unable to recognize the court’s clear legal
error.”

It is a long-standing rule that parties may not have judicial review of
matters not raised in the forum of trial. In the Matter of Kelly & Fernandes-
Prabhu, 170 N.H. 42, 46 (2017). The rationale behind the rule is that trial
forums should have an opportunity to rule on issues and to correct errors before
they are presented to the appellate court. Id. 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. Dist.
Div. R. 3.11(E)(1); see N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679
(2002). These preservation rules are not relaxed for self-represented parties. See
In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56-57 (2006).

Here, although the tenant argued at trial that the possessory action was
retaliatory, the record before us does not reflect that, after the court issued its
order articulating its interpretation of RSA 540:13-a, she apprised it of its alleged
errors in statutory construction. In consequence, the trial court did not have an
opportunity to correct any errors that it might have made.

To the extent that the tenant requests that we address her argument as
plain error, see Sup. Ct. R. 16-A, an error is “plain” only if it was or should have
been obvious in the sense that the governing law was clearly settled to the
contrary. State v. Pennock, 168 N.H. 294, 310 (2015). When the law is not clear
at the time of trial and remains unsettled at the time of appeal, a decision by the
trial court cannot be plain error. Id. Here, the correct interpretation of the
requirement that the tenant not be more than one week in arrears on her rental
obligation when the retaliation defense is based upon her availing herself of RSA
540:13-d is not a settled question. Accordingly, the trial court’s error, if any,
could not have been plain. See id.

Because the tenant’s argument that the trial court erred by ruling that she
was not entitled to a retaliation defense under RSA 540:13-a is neither preserved
nor plain error, we need not address her remaining arguments.

Affirmed.

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

Eileen Fox,
Clerk

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