Frank Farris v. Monty Woods

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0155, Frank Farris v. Monty Woods, the
court on August 7, 2019, issued the following order:

Having considered the brief filed by the plaintiff, Frank Farris, and the
record submitted on appeal, we conclude that oral argument is unnecessary in
this case. See Sup. Ct. R. 18(1). The plaintiff appeals a Circuit Court (Rappa,
J.) order entering judgment in favor of the defendant, Monty Woods,
administrator of the estate of Evan Strimbeck (landlord), on his petition
brought pursuant to RSA 540-A:3, VII (Supp. 2018), and awarding the
defendant attorney’s fees. We affirm in part and reverse in part.

RSA 540-A:3, VII provides, in pertinent part:

A landlord shall maintain and exercise reasonable care in the
storage of personal property of a tenant who has vacated the
premises, either voluntarily or by eviction, for a period of 7 days
after the date upon which such tenant has vacated. During this
period, the tenant shall be allowed to recover personal property
without payment of rent or storage fees. After the 7-day limit has
expired, such personal property may be disposed of by the landlord
without notice to the tenant.

The trial court found that the plaintiff vacated the premises on October
1, 2017, but that, even assuming he vacated it on October 16 (as he testified),
there was no evidence that the landlord “took any action to prevent him from
retrieving his personal property” before the 7-day statutory period expired on
October 23. The trial court found that none of the plaintiff’s personal property
was removed from the premises before October 23, and that the failure to
retrieve his personal belongings before then “falls squarely on the Plaintiff.”

On appeal, the plaintiff argues, in effect, that the evidence does not
support the trial court’s judgment. In reviewing a trial court’s decision
rendered after a trial on the merits, we uphold the trial court’s factual findings
and rulings unless they lack evidentiary support or are legally erroneous.
O’Malley v. Little, 170 N.H. 272, 275 (2017). We do not decide whether we
would have ruled differently than the trial court, but rather, whether a
reasonable person could have reached the same decision as the trial court
based upon the same evidence. Id. Thus, we defer to the trial court’s
judgment on such issues as resolving conflicts in the testimony, measuring the
credibility of witnesses, and determining the weight to be given evidence. Id.
 The record supports the trial court’s factual findings. The landlord
testified that the plaintiff informed her that he would vacate the premises on
October 1 and that he had access to his property between October 1 and
October 16 because he still had a key to the premises. She further testified
that, on October 20, the plaintiff informed her that he “was coming the next
morning” to retrieve his property, but that he did not do so. The landlord
testified that she “began cleaning the property out” on October 24. She
testified that none of the plaintiff’s personal property was removed from the
premises before October 23. To the extent that the plaintiff’s testimony
conflicted with that of the landlord, such conflicts were for the trial court to
resolve. See id. Based upon the above evidence, we conclude that the trial
court reasonably determined that the landlord did not violate RSA 540-A:3, VII.

The plaintiff next challenges the trial court’s award of attorney’s fees to
the defendant. The trial court found that filing the instant action on October
25, after the plaintiff’s statutory right to retrieve his property had expired, was
frivolous and merited awarding attorney’s fees to the landlord.

The general rule in New Hampshire is that parties pay their own
attorney’s fees. Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 29 (2017).
However, we have recognized exceptions to this rule. Id. A court may award
attorney’s fees when specifically authorized by statute. Id. Otherwise, an
award of attorney’s fees must be grounded upon an agreement between the
parties or a judicially-created exception to the general rule. Id. “Underlying
the rule that the prevailing litigant is ordinarily not entitled to collect his
counsel fees from the loser is the principle that no person should be penalized
for merely defending or prosecuting a lawsuit.” Id. at 29-30 (quotation
omitted).

Here, the trial court awarded fees pursuant to the judicial exception that
allows such an award when a party has “acted in bad faith, vexatiously,
wantonly, or for oppressive reasons, where the litigant’s conduct can be
characterized as unreasonably obdurate or obstinate, and where it should have
been unnecessary for the successful party to have brought the action.”
Harkeem v. Adams, 117 N.H. 687, 691 (1977) (quotation and citations omitted).
“[B]efore a Harkeem exception may be carved out, it must be supported by a
specific finding of bad faith, such as obstinate, unjust, vexatious, wanton or
oppressive conduct.” Pugliese v. Town of Northwood, 119 N.H. 743, 752
(1979).

We will not overturn the trial court’s decision concerning attorney’s fees
absent an unsustainable exercise of discretion. Fat Bullies Farm, LLC, 170
N.H. at 30. To warrant reversal, the discretion must have been exercised for
reasons clearly untenable or to an extent clearly unreasonable to the prejudice
of the objecting party. Id.

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 In the instant case, the trial court failed to make a specific finding of bad
faith before awarding attorney’s fees under the Harkeem exception to the
landlord. Without such a finding, awarding fees to the landlord constituted an
unsustainable exercise of discretion. See Arcidi v. Town of Rye, 150 N.H. 694,
704-05 (2004).

The plaintiff raises other arguments on appeal, but has not
demonstrated that he preserved them for our review by raising them before the
trial court. It is a long-standing rule that parties may not have judicial review
of matters that were not properly raised in the trial court. Thompson v.
D’Errico, 163 N.H. 20, 22 (2011). It is the burden of the appealing party, here
the plaintiff, to provide this court with a record demonstrating that he raised
his issues before the trial court. See Bean v. Red Oak Prop. Mgmt., 151 N.H.
248, 250 (2004). Because the plaintiff has failed to demonstrate that he raised
his remaining arguments in the trial court, we decline to address them.

Affirmed in part; and
reversed in part.

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

Eileen Fox,
Clerk

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