Robert Ploettner v. Christopher Della Cioppa & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0684, Robert Ploettner v. Christopher
Della Cioppa & a., the court on September 14, 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). We vacate
and remand.

The defendants, Christopher Della Cioppa and Jennifer Della Cioppa,
appeal an order of the Circuit Court (Tenney, J.) in favor of the plaintiff, Robert
Ploettner, on his action for possession based upon non-payment of rent. See
RSA 540:13 (2007). We construe the defendants’ brief to argue that: (1) they had
an oral rent-to-purchase agreement with the plaintiff and, thus, were not tenants
but, instead, were the owners and their overdue payments to the plaintiff were
“mortgage” payments, not rent payments; and (2) there was insufficient evidence
to support the trial court’s finding that their arrearages were in excess of
$14,000, in part because they never agreed to a late fee on overdue payments.

The circuit court lacks jurisdiction to decide a plea of title. Friedline v.
Roe, 166 N.H. 264, 267 (2014). Although the defendants failed to challenge the
circuit court’s jurisdiction, we may raise this issue sua sponte. State v.
Demesmin, 159 N.H. 595, 597 (2010). In this case, the defendants claimed that
they owned the property. Although they based their claim upon an oral
agreement, the circuit court lacked jurisdiction to decide it. See Friedline v. Roe, 166 N.H. 264, 266 (2014) (stating district court lacked jurisdiction to determine
validity of defendant’s claim to life estate, even though agreement not reduced to
writing); RSA 490-F:3 (Supp. 2017) (conferring upon circuit courts powers and
duties of former district courts).

When a defendant raises such a claim, the circuit court must provide the
defendant with an opportunity to promise to enter his action in the superior
court and, if so ordered, to enter a recognizance. Friedline, 166 N.H. at 267-68;
see RSA 540:17 (2007). If the defendant fails to initiate the action in the superior
court or does not enter the specified recognizance, then the circuit court may
resume the possessory proceedings. Friedline, 166 N.H. at 268.
 Accordingly, we vacate and remand to the trial court for proceedings
consistent with RSA 540:17, RSA 540:18 (2007), and our decision in Friedline.
In light of this conclusion, we need not address the defendants’ other arguments.

Vacated and remanded.

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

Eileen Fox,
Clerk

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