Nicole Pittore v. Dan LeBlanc & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0039, Nicole Pittore v. Dan LeBlanc & a.,
the court on October 17, 2018, issued the following order:

The plaintiff’s motion to strike documents or handwritten notes on
documents in the defendants’ appendix that were not exhibits at trial or
pleadings filed in the small claim case is granted. See Sup. Ct. R. 13. The
plaintiff’s motion for late entry of her objection to the defendants’ motion to
strike is also granted. The defendants’ motion to strike documents in the
plaintiff’s appendix is denied; the record supports the plaintiff’s contention that
the challenged documents were exhibits at trial. See id. Having considered the
briefs and portions of the record that are properly before us, we conclude that
oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm in
part, vacate in part, and remand.

The defendants, Dan LeBlanc and Rebecca LeBlanc, appeal a small claim
judgment of $7,651 plus costs and interest entered by the Circuit Court
(Sadler, J.) in favor of the plaintiff, Nicole Pittore, on her claim for damages
arising out of a residential lease. We construe their brief to argue that the trial
court erred by: (1) awarding the plaintiff $2,400 in unpaid rent, and not
crediting them with a $2,400 security deposit that the plaintiff had applied
toward the unpaid rent; (2) finding that the plaintiff incurred $1,616.47 in
attorney’s fees and costs in an eviction proceeding, and awarding her that
amount; and (3) finding that they breached the lease by damaging carpets, and
awarding the plaintiff an amount to compensate her for replacing the carpets.

We will uphold the trial court’s findings and rulings unless they lack
evidentiary support or are legally erroneous, deferring to the trial court’s
judgment on issues such as resolving conflicts in the testimony, evaluating the
credibility of the witnesses, and determining the weight of the evidence
presented at trial. Vincent v. MacLean, 166 N.H. 132, 134 (2014). We view the
evidence in the light most favorable to the plaintiff. Nashua Hous. Auth. v.
Wilson, 162 N.H. 358, 360 (2011).

At the outset, we agree with the plaintiff that, to the extent the
defendants contend that their eviction violated the terms of the lease, they are
precluded from challenging the propriety of the eviction by the judgment
entered against them in the eviction. See, e.g., Gray v. Kelly, 161 N.H. 160,
164-67 (2010) (holding that doctrine of res judicata barred action for recovery
of personal property when plaintiff had opportunity to litigate his right to the
property in prior domestic violence proceeding). Accordingly, we reject the
defendants’ contention that the plaintiff was not entitled to an award of
attorney’s fees because the underlying eviction was allegedly without merit.

The evidence establishes that the defendants entered into a residential
lease with the plaintiff that expired on June 30, 2016. Under the lease, the
defendants owed monthly rent of $2,400. The lease required the defendants to
surrender the premises following the lease term “in as good order and condition
as the same [were] at [the lease’s] commencement,” with “reasonable wear and
tear excepted.” In the event the defendants failed to surrender possession at
the end of the lease term, the lease provided that, “with the consent of [the
plaintiff], a new month-to-month tenancy shall be created between the parties
subject to the same terms and conditions of this Agreement.” The lease
entitled “[t]he prevailing party in any lawsuit or alternative dispute resolution
forum utilized to enforce the terms of this Agreement . . . to their costs and
fees, including attorney’s fees, spent in connection therewith.”

The defendants paid a security deposit of $2,400 at the beginning of the
lease. They also paid rent for each month of the lease term with the exception
of June 2016. When the plaintiff requested the June rent payment, defendant
Dan LeBlanc told her that she could retain the security deposit in lieu of rent,
a proposal she rejected. On June 15, 2016, the plaintiff filed her small claim,
seeking $2,400 in rent and $750 in attorney’s fees for a total claim of $3,150.
The defendants failed to vacate the property by June 30, and the plaintiff
successfully brought an eviction proceeding. The defendants vacated the
property on July 23, 2016, and paid the plaintiff $1,780.66 in prorated rent.

On July 28, 2016, the plaintiff sent the defendants a letter
acknowledging that the $1,780.66 rent payment covered their July occupancy,
but asserting that they had caused damages of $18,000 to the property and
had caused her to incur $1,600 in attorney’s fees. She notified the defendants
that she would retain the $2,400 security deposit and $38 in interest that had
accrued on it in order to compensate her for the June 2016 rent and alleged
property damages, and demanded that they pay her an additional $19,562.

On August 24, 2016, the plaintiff moved to amend her small claim
complaint, asserting that she had paid $1,600 in attorney’s fees, and not the
$750 that she had initially pleaded, and that the defendants had caused
approximately $18,000 in damages to the property. She also represented that
the defendants had paid $1,780.66 in rent for their July 2016 occupancy, that
she had “applied the $2,400 deposit to the June rent,” and that she owed the
defendants $38 in interest on the security deposit. Thus, she requested that
she be allowed to seek recovery of the attorney’s fees and damages, which she
claimed amounted to “over $19,562,” to be capped at the $10,000 jurisdictional
limit. See RSA 503:1, I (Supp. 2017). The trial court granted the motion.

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 At trial, the plaintiff testified that the defendants did not pay rent for
June 2016. Her counsel conceded, however, “that the [$]2,400 that [the
defendants] left for last month’s rent, the security deposit sets that off, but
there’s all these other damages . . . in the property where that [$]2,400 should
have — security deposit — shouldn’t have been applied to rent.” The plaintiff
introduced evidence that she had paid $1,616.47 in attorney’s fees and costs
related to the eviction. She also introduced photographs of what she asserted
were damages to the property, including photographs of walls, doors, a deck,
tiles, and carpeting, estimates for various repairs to the property, and evidence
that she had in fact paid $3,750 to replace carpeting. The defendants generally
disputed that they had caused the damages claimed by the plaintiff, or that the
damages she claimed were beyond “reasonable wear and tear.”

Following trial, the trial court entered judgment for the plaintiff “in
respect to carpets, rent for one month and attorney’s fees,” for a total amount
of $7,651. In context, we construe the decision as necessarily rejecting any
claim for property damages other than the damages to the carpets. See In the
Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (interpretation of trial
court order is a question of law, which we review de novo).

Upon this record, we agree with the defendants that the trial court erred by
awarding the plaintiff “rent for one month” without also crediting them with the
$2,400 security deposit. Both the plaintiff in her motion to amend, and her
attorney at trial, acknowledged that she had retained the security deposit and
$38 in interest on it, and that she had applied the deposit toward the June 2016
rent. Under these circumstances, the plaintiff was not entitled to recover an
additional $2,400 in rent. Cf. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H.
813, 851 (2005) (stating that the trial court properly instructed jury that the
plaintiff could not recover more than once for the same loss).

We reject the plaintiff’s argument that the trial court “reasonabl[y] found
that [the plaintiff] was justified in setting off against the . . . security deposit” the
damages that she claimed the defendants had caused in addition to the $3,750
that she paid to replace the carpets. The trial court made no such finding,
express or implied. To the contrary, it expressly entered judgment only with
respect “to carpets, rent for one month and attorney’s fees.” As noted above,
the entry of judgment for those items necessarily implies that the court did not
find in the plaintiff’s favor for the remaining items of damage that she sought.

To the extent the defendants challenge the entry of judgment in the
plaintiff’s favor on her claims for attorney’s fees and damages to the carpets,
the evidence, when construed most favorably to the plaintiff, supports the trial
court’s decision. Wilson, 162 N.H. at 360. It was for the trial court to weigh
the evidence and evaluate the parties’ credibility. Vincent, 166 N.H. at 134.
Any additional arguments in the defendants’ brief are not sufficiently developed
to warrant further consideration. State v. Blackmer, 149 N.H. 47, 49 (2003).

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 It is unclear how the trial court arrived at its damages award of $7,651.
The evidence establishes that the plaintiff could have sustained no more than
$5,328.47 for the damages that the trial court awarded other than rent — that is,
the $3,750 that the plaintiff testified to have paid to replace carpets plus the
$1,616.47 that she testified to have paid her attorney, less the $38 in interest on
the security deposit that she testified to have retained. Accordingly, we vacate
the damages award of $7,651, and direct the trial court, upon remand, to
recalculate the plaintiff’s damages award in accordance with this order.

Affirmed in part; vacated
in part; and remanded.

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

Eileen Fox,
Clerk

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