Salmon Properties, LLC v. Michael Herpst & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0647, Salmon Properties, LLC v. Michael
Herpst & a., the court on November 16, 2018, 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).
The defendants, Michael Herpst and Myla Randall (tenants), appeal an order of
the Circuit Court (Ashley, J.) granting judgment to the plaintiff, Salmon
Properties, LLC (landlord), in this possessory action for non-payment of rent.
The trial court found that the tenants had failed to pay rent in July and August
2017 and “did not establish they gave written notice to the landlord at a time
when they were not in arrears, nor that any such notice satisfied the terms of
RSA 540:13-d.” We affirm.

We will uphold the trial court’s factual findings unless they are
unsupported by the evidence or erroneous as a matter of law. Town of
Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012). The trial court was
in the best position to evaluate the evidence, measure its persuasiveness, and
assess the credibility of the witnesses, and we defer to its judgment on such
issues. Id. at 66-67. As the fact finder, the trial court was entitled to accept or
reject, in whole or in part, the testimony of any party and was not required to
believe even uncontroverted evidence. Id. at 67. We review questions of law de
novo. Miller v. Slania Enters., 150 N.H. 655, 659 (2004).

The tenants first argue that the trial court “incorrectly interpreted RSA
540:13-d (2007) as requiring written notice to the landlord of violations of the
premises.” We review the trial court’s statutory interpretation de novo. Appeal
of Local Gov’t Ctr., 165 N.H. 790, 804 (2014). “In matters of statutory
interpretation, we are the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole.” Id. “We first look
to the language of the statute itself, and, if possible, construe that language
according to its plain and ordinary meaning.” Id. “We interpret legislative
intent from the statute as written and will not consider what the legislature
might have said or add language that the legislature did not see fit to include.”
Id.

RSA 540:13-d, I, provides that “[n]o action for possession based on non[-]
payment of rent” may be maintained with respect to residential premises “if
such premises are in substantial violation of the standards of fitness for health
and safety” and “such violation materially affects the habitability of said
premises,” provided that, among other requirements, the tenant proves by clear
and convincing evidence that: (1) “while not in arrears in rent, he provided
notice of the violation to the person to whom he customarily pays rent”; and (2)
“[t]he landlord failed to correct the violations within 14 days of the receipt of
such written notice or, in an emergency, as promptly as conditions require.”
(Emphasis added.) As the plain language of the statute requires that the notice
be in writing, we conclude that the trial court’s interpretation of RSA 540:13-d
was not erroneous.

The tenants next assert that the trial court erred when it found that
there was no evidence that they furnished written notice to the landlord when
they were not in arrears. They argue that they provided a list of needed repairs
to the landlord in April 2017, which they contend sufficed as the written notice
required by RSA 540:13-d. However, the evidence before the trial court was
conflicting as to the content of the April 2017 notice. The landlord testified
that the list of repairs was for “little things, like door frames” and that the
tenants paid rent through June 2017. The tenants’ witness testified that he
observed them writing a list of repairs on an envelope and that those repairs
related to mold and electricity. Based upon this record, the trial court
reasonably could have found that the April 2017 list did not comply with RSA
540:13-d.

The tenants next contend that their “due process rights under NH rule of
Due Process Conduct, Rule 3.7 ‘2.3’” were violated because “they intended on
calling [the landlord’s attorney] as a witness.” We decline to consider the
merits of this argument because it is insufficiently briefed for our review. See
Keenan v. Fearon, 130 N.H. 494, 499 (1988) (explaining that “off-hand
invocations” of constitutional rights supported by neither argument nor
authority warrant no extended consideration). We observe that, at the hearing,
the tenants conceded that they received both the demand for rent and eviction
notice on August 14, the issues allegedly involving the attorney’s testimony.

The tenants next assert that the trial court erred because the landlord’s
testimony was “granted without proof.” To the extent that the tenants intend
this as a challenge to the trial court’s credibility determinations, we reiterate
that we defer to the trial court’s judgment on such issues. See Vincent v.
MacLean, 166 N.H. 132, 134 (2014).

The tenants next contend that they were “denied their right to cure rent
before trial.” To the extent that the tenants intend this as an assertion that
they were entitled to a stay under RSA 540:13-c (Supp. 2017), we disagree.
Such stays are discretionary. Nothing in RSA 540:13-c requires a trial court to
grant one. To the extent that the tenants intend by this assertion to argue that
they were entitled to the process set forth in RSA 540:13-d, II, we disagree.
Given that we have upheld the trial court’s finding that the tenants failed to

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provide the notice required by RSA 540:13-d, I, we conclude that they were not
entitled to the process set forth in RSA 540:13-d, II.

Finally, the tenants argue that the trial court erred by denying their
request for a continuance. “The trial court has broad discretion in managing
the proceedings before it.” In the Matter of Sawyer & Sawyer, 161 N.H. 11, 18
(2010) (quotation omitted). We review the trial court’s denial of the tenants’
request for a continuance under our unsustainable exercise of discretion
standard. See id. Based upon our review of the record, we cannot say that the
trial court unsustainably exercised its discretion by denying the tenants’
request for a continuance.

Affirmed.

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

Eileen Fox,
Clerk

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