Prudence Daniels-Aldrich v. Frank Sacco

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0641, Prudence Daniels-Aldrich v. Frank
Sacco, the court on May 16, 2019, issued the following order:

Having considered the opening and reply briefs of the defendant, Frank
Sacco (landlord), the brief of the plaintiff, Prudence Daniels-Aldrich (tenant),
and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The landlord appeals a
Circuit Court (Rappa, J.) order entering a $17,000 judgment in the favor of the
tenant on her petition brought under RSA chapter 540-A. See RSA ch. 540-A
(2007 & Supp. 2018). The trial court imposed a penalty of $1,000 after finding
that the landlord “directly caus[ed]” the tenant’s electricity to be “shut off.” The
landlord does not appeal that part of the judgment, which we, therefore, affirm.
The trial court imposed a penalty of $16,000 after finding that the landlord
violated RSA 540-A:3, V-a by willfully failing to investigate the tenant’s report
of a rodent infestation within 7 days of receiving notice of that infestation. RSA
540-A:3, V-a (Supp. 2018). The landlord appeals this penalty, which we
vacate. We remand for further proceedings consistent with this order.

The trial court found that the landlord violated RSA 540-A:3, V-a, which
provides:

No landlord shall willfully fail to investigate a tenant’s report
of an infestation of insects, . . . or rodents in the tenant’s rented or
leased premises, within 7 days of receiving notice of such alleged
infestation from the tenant or a municipal health or housing code
authority or fail to take reasonable measures to remediate an
infestation.

Specifically, the trial court found:

The order that [the landlord] investigate the infestation was issued
on August 3, 2018. The landlord took no action on that order until
August 19, 2018 when he provided the [tenant] with “sticky pads.”
While the Court may question whether the simple act of providing
the “sticky pads” constitutes “reasonable measures to remediate an
infestation[,]” there was testimony that seven mice were eradicated
as a result and there was no testimony that the infestation
continued after that. Therefore, the violation was limited to sixteen
(16) days. . . . [P]ursuant to RSA 540-A:[4], IX[a][,] the penalty is
$16,000 ($1,000 per each day of the violation[)].
 The landlord contends that the trial court erred when it found that he
had notice of the infestation as of August 3, the date on which the temporary
order was issued. He contends that he did not have notice of the mice
infestation until August 15, when the trial court’s temporary order was served
on him. He argues that the action he took on August 19 was within 4 days of
that notice, and, therefore, that he did not violate RSA 540-A:3, V-a.

We are unable to determine whether the landlord has interpreted the
trial court’s order correctly. It could be that, as he argues, the trial court found
that he was first notified of the infestation by the temporary order. However, it
could also be that the trial court used the date of the temporary order only to
affix damages. See RSA 540-A:4, IX(a) (Supp. 2018) (providing, in pertinent
part, that each day that a violation of RSA 540-A:2 or RSA 540-A:3 “continues
after issuance of a temporary order shall constitute a separate violation”).
Reading the order one way, the trial court found that the landlord received
notice of the infestation on August 3, and did not correct it until August 19.
Reading the order another way, the trial court did not specify when the tenant
first notified the landlord of the infestation but impliedly must have found that
he was notified more than 7 days before August 19.

Because the trial court’s order is ambiguous, we vacate this portion of
the trial court’s order and remand for further proceedings consistent with this
order. Upon remand, should the trial court again determine that the landlord
violated RSA 540-A:3, V-a, we direct it to issue: (1) findings of fact sufficient to
allow for meaningful appellate review; and (2) rulings of law addressing the
remedy, if any, to which the tenant might be entitled in light of RSA 540-A:4,
IX(d), which states that the provisions of RSA 540-A:4, IX(a) “shall not apply to
any violation of [RSA] 540-A:3, V-a.” RSA 540-A:4, IX(d) (Supp. 2018).

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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