Cheryl-Ann Lombard v. Bob Scribner

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0112, Cheryl-Ann Lombard v. Bob Scribner,
the court on January 31, 2020, issued the following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The plaintiff, Cheryl-Ann Lombard, appeals an order of the Circuit Court
(LeFrancois, J.) dismissing her petition brought under RSA chapter 540-A
against the defendant, Bob Scribner, following a bench trial. We affirm.

The trial court found the following facts. In August 2018, the defendant
purchased the building in which the plaintiff has a rental unit. Previously, the
plaintiff had experienced problems with hot water and electrical outlets. In
November 2018, the plaintiff notified the defendant of several issues in her
unit, including a problematic electrical outlet, leaking pipes, and outdated
thermostats.

On November 28, the town building department inspected the rental unit
and notified the defendant of several violations that he needed to correct. In a
December 10 letter, the town advised the defendant that he had corrected all of
those violations except two: (1) one outlet in the bathroom of the plaintiff’s
rental unit was faulty; and (2) an exterior door for the common hallway had to
be labeled properly. The town also advised the defendant that, although the
inspector had observed that the plaintiff’s rental unit had hot water, the
plaintiff indicated that the hot water was inadequate. At the December 19
hearing, the defendant testified that he was working on replacing the faulty
outlet, properly labeling the hallway door, and addressing the complaint of
inadequate hot water.

The trial court ruled that the plaintiff had failed to prove that the
defendant had willfully and substantially interfered with her beneficial use of
the premises, see RSA 540-A:2 (2007), or that he had willfully terminated or
interrupted her hot water, see RSA 540-A:3, I (2007). With respect to the
plaintiff’s allegation that the defendant had failed to address a pest infestation
problem in her unit, the trial court found that “when notified of a possible
insect infestation, the defendant hired a pest services company to service the
building” and that he continued to use the company “on a regularly scheduled
monthly basis.” Accordingly, the trial court ruled that the plaintiff failed to
prove a willful failure by the defendant to address pest infestation. See RSA
540-A:3, V-a (Supp. 2018). Because the trial court determined that the
plaintiff had failed to meet her burden of proof, it dismissed her petition.
 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.

On appeal, the plaintiff first argues that the trial court erred by failing to
apply RSA 48-A:14 (Supp. 2018). RSA 48-A:14 applies only to municipalities
that have “not adopted ordinances, codes, or bylaws” pursuant to RSA chapter
48-A. The record submitted on appeal fails to establish that the plaintiff raised
this issue in 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 she raised her 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 she raised her argument under RSA 48-A:14 in the
trial court, we decline to address it.

The plaintiff next argues that the record does not support certain of the
trial court’s findings. Although the plaintiff has provided a transcript of the
hearing in the trial court, she has not provided copies of the exhibits entered at
that hearing, including her “packet of proof.” As the appealing party, the
plaintiff had the burden of providing this court with a record sufficient to
decide her issues on appeal. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004); see Town of Nottingham v. Newman, 147 N.H. 131, 137 (2001) (rules of
appellate practice not relaxed for self-represented litigants). Absent a complete
record, we must assume that the evidence supported the trial court’s decision.
See Bean, 151 N.H. at 250. We review the court’s order for errors of law only,
see Atwood v. Owens, 142 N.H. 396, 397 (1997), and find none.

To the extent that the plaintiff contends that the trial court erred by
crediting the defendant’s testimony that the plaintiff did not notify him until
November 2018 of the issues in her rental unit, we reiterate that we defer to
the trial court’s credibility determinations. O’Malley, 170 N.H. at 275.

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We have reviewed the plaintiff’s remaining appellate arguments and conclude
that they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321,
322 (1993).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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