Richard Horton & a. v. David Clemens & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

2d Circuit Court-Haverhill District Division
No. 2019-0476

RICHARD HORTON & a.

v.

DAVID CLEMENS & a.

Submitted: May 13, 2020
Opinion Issued: August 11, 2020

Plymouth Law Center, of Plymouth (Gabriel Nizetic on the brief), for the
plaintiffs.

David Clemens and April Hanks, self-represented parties, filed no brief.

New Hampshire Legal Assistance (Stephen Tower on the brief), as amicus
curiae.

HICKS, J. The plaintiffs, Richard and Janice Horton (landlords), appeal
an order of the Circuit Court (Mace, J.) dismissing their petition to evict the
defendants, David Clemens and April Hanks (tenants), for nonpayment of rent
on the ground that the eviction notice failed to comply with RSA 540:5, II
because it did not contain the same information as is provided on the judicial
branch form eviction notice. See RSA 540:5, II (2007). We affirm.

The record reveals the following facts. The landlords initiated this
possessory action by serving the tenants on June 4, 2019, with a demand for
rent owed for June and a notice of eviction. The eviction notice informed them
that they had until June 12 to vacate the premises, stated specifically that they
were being evicted for “failure to pay rent due,” and informed the tenants of
their right to avoid eviction by paying “all the arrearages plus fifteen dollars
($15.00) as liquidated damages, in accordance with RSA 540:9.” However, the
eviction notice did not include the following information, which appears in the
judicial branch form eviction notice:

NOTE: This notice is not a court order requiring you to
vacate the rental property. However, if you remain on the premises
after the expiration of this notice, your landlord may continue with
New Hampshire’s lawful eviction process: That process would
result in you being served by a sheriff with a summons called a
Landlord and Tenant Writ. If served with a Landlord and Tenant
Writ, you will have the right to dispute the reason(s) for the
eviction at a hearing before a judge. To do that, you will have to
file a document called an Appearance with the court where the
eviction case is filed, no later than the “return date” listed on the
Writ.

Thereafter, the landlords filed a landlord-tenant writ seeking possession of the
premises, which informed the tenants, among other things that: (1) to contest
the eviction, they had to file an appearance no later than the return date on the
writ (June 26); and (2) they could not be evicted unless the court so ordered.
The tenants subsequently moved to dismiss the eviction proceeding on the
ground that the failure to include in the eviction notice the same information
that is provided on the judicial branch form rendered the notice fatally
defective and required dismissal of the action. The landlords objected.

The trial court held a hearing on June 27, at which it heard argument
about the motion to dismiss and offers of proof about the merits of the
proceeding. Hanks testified that she and Clemens were served with the
eviction notice on June 4, 2019. Thereafter, the court granted the motion to
dismiss. This appeal followed.

On appeal, the landlords argue that the trial court erred by dismissing
their action because the eviction notice need not have included the same
information as is in the quoted paragraph from the judicial branch form.
According to the landlords, the information in the quoted paragraph “is outside
the scope of any language necessitated by law and beyond the scope of the
Circuit Court’s authority to create forms that comply with existing law.” The
landlords assert that the quoted paragraph “essentially functions to provide
tenants with unsolicited legal advice,” and “disrupts the careful statutory
balance and the self-help provisions of RSA [chapter] 540 by informing the
tenants that they are under no obligation to vacate the premises.”
Alternatively, the landlords contend that even if the information from the

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quoted paragraph is required, dismissal of the eviction proceeding is not the
proper remedy for their failure to include it in the eviction notice.

Resolving the issues in this appeal requires that we engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo.
Darbouze v. Champney, 160 N.H. 695, 697 (2010). We are the final arbiter of
the intent of the legislature as expressed in the words of the statute considered
as a whole. Id. We first examine the language of the statute, and, where
possible, we ascribe the plain and ordinary meanings to the words used. Id.
When the language of the statute is clear on its face, its meaning is not subject
to modification. Id. We will neither consider what the legislature might have
said nor add words that it did not see fit to include. Id.

RSA chapter 540 authorizes summary possessory actions to simplify and
facilitate the landlord’s recovery of possession of the premises. So. Willow
Properties v. Burlington Coat Factory of N.H., 159 N.H. 494, 498 (2009). The
purpose of such actions “is to permit the landlord to recover possession on
termination of a lease without suffering the delay, loss and expense to which he
may be subjected under a common-law action.” Id. (quotation omitted). “The
process is intended to be summary and is designed to provide an expeditious
remedy to the landlord seeking possession.” Matte v. Shippee Auto, 152 N.H.
216, 218 (2005) (quotation omitted). “Because RSA chapter 540 establishes
rights and benefits which a landlord did not enjoy at common law, strict
compliance with its terms is required.” So. Willow Properties, 159 N.H. at 498
(quotation and brackets omitted).

RSA 540:2, II(a) authorizes a landlord to terminate a tenancy for
nonpayment of rent “by giving to the tenant or occupant a notice in writing to
quit the premises in accordance with RSA 540:3 and 5.” RSA 540:2, II(a)
(2007). When terminating a tenancy for this reason, the landlord must give the
tenant seven days’ notice. RSA 540:3, II (2007). In addition, the eviction notice
must “state with specificity the reason for the eviction,” and must “inform the
tenant of his or her right, if any, to avoid the eviction by payment of the
arrearages and liquidated damages in accordance with RSA 540:9.” RSA
540:3, III, IV (2007); see RSA 540:9 (2007). RSA 540:5, II requires the circuit
court to “provide forms for a demand for rent and eviction notice.” It further
provides: “Although a landlord shall not be required to use the forms, a valid
demand for rent or eviction notice shall include the same information as is
requested and provided on such forms.” RSA 540:5, II. Importantly, although
RSA 540:5, II does not specify the information to be “requested and provided”
on the judicial branch forms, RSA 490:26-d authorizes the judicial branch to
create judicial forms that are “necessary for the effective administration of
justice.” RSA 490:26-d (2010).

The landlords first argue that, pursuant to this statutory scheme, they
are not required to include on their eviction notice the same information as is

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provided in the quoted paragraph from the judicial branch form eviction notice.
Rather, they assert, notice of eviction for nonpayment of rent is legally
sufficient as long as it complies with RSA 540:3 by: (1) giving the tenant seven
days’ notice; (2) specifying the reason for the eviction; and (3) informing the
tenant of the right to avoid eviction by paying the arrearage and liquidated
damages as provided in RSA 540:9. Their eviction notice, they contend, is
legally sufficient because it satisfied the three requirements of RSA 540:3.

To support their argument, the landlords rely upon Darbouze. Darbouze
is instructive, but contrary to the landlords’ assertions, is not dispositive. In
that case, the tenant argued that the eviction notice was defective because it
was entitled “Notice to Quit.” Darbouze, 160 N.H. at 698 (quotation omitted).
In rejecting this argument, we observed that “while the better practice would be
the use of the term ‘eviction notice,’ we find no statutory prohibition against
the use of the term ‘notice to quit,’ as long as the substance of the notice
satisfies the three . . . requirements” enumerated in RSA 540:3. Id.

The landlords rely upon this language to argue that the content of an
eviction notice need only comply with RSA 540:3 to be legally sufficient.
However, in Darbouze, although the title of the eviction notice might have
differed from that of the judicial branch form, the substance of the two was the
same. See id. at 698-99. Accordingly, in Darbouze, we were not faced with the
question confronting us today: whether an eviction notice that does not contain
the same information as the judicial branch form, nonetheless, is legally
sufficient because it contains the information required by RSA 540:3.

The plain language of RSA 540:5, II does not support the landlords’
argument. Although RSA 540:5, II does not require a landlord to use the
judicial branch forms, the statute expressly provides that “a valid demand for
rent or eviction notice shall include the same information as is requested and
provided on such forms.” RSA 540:5, II. The use of the word “shall” evidences
that this is a mandatory requirement. Appeal of Coos County Comm’rs, 166
N.H. 379, 386 (2014) (“The general rule of statutory construction is that the
word ‘may’ makes enforcement of a statute permissive and that the word ‘shall’
requires mandatory enforcement.” (quotation omitted)). Had the legislature
intended the eviction notice to be legally sufficient provided that it meets the
requirements of RSA 540:3, the legislature could have said so. To the extent
that there is any conflict between RSA 540:3 and RSA 540:5, II, RSA 540:5, II
controls because both statutes are equally specific as to eviction notices and
RSA 540:5, II is the later-enacted statute. Cf. Petition of Public Serv. Co. of
N.H., 130 N.H. 265, 283 (1988) (noting that the specific, more recently-enacted
statute controls over the general, earlier-enacted statute).

Here, it is undisputed that the eviction notice does not include “the same
information as is . . . provided” on the judicial branch form because it does not
inform the tenants that: (1) the eviction notice is not a court order requiring

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them to vacate the property; (2) the landlords may proceed with the eviction
process if the tenants remain on the premises; (3) the process will involve being
served with a writ; (4) they have the right to dispute the reasons for the eviction
at a judicial hearing; and (5) they must file an appearance before the return
date in order to dispute the reasons for the eviction. RSA 540:5, II. Thus,
under the plain meaning of the statute, the eviction notice in this case is legally
insufficient.

The landlords assert that the language on the form is “beyond the scope
of the Circuit Court’s authority to create forms that comply with existing law.”
However, the judicial branch has the authority to create judicial forms that are
“necessary for the effective administration of justice.” RSA 490:26-d.
Informing a tenant of the legal effect of an eviction notice is consistent with
that authority. Doing so is also consistent with the judicial branch’s general
obligation under Part I, Article 14 of the State Constitution to ensure equal
access to justice.1 See N.H. CONST. pt. I, art. 14 (“Every subject of this state is
entitled to a certain remedy, by having recourse to the laws, for all injuries he
may receive . . . ; to obtain right and justice freely, without being obligated to
purchase it; completely, and without any denial; promptly, and without delay;
conformably to the laws.”); see also Huckins v. McSweeney, 166 N.H. 176, 180
(2014) (explaining that the purpose of Part I, Article 14 “is to make civil
remedies available and to guard against arbitrary and discriminatory
infringements upon access to courts”).

The landlords contend that the information in the quoted paragraph
“provide[s] tenants with unsolicited legal advice, to the detriment of landlords
and property owners, and coaches tenants on ways to not voluntarily and
peaceably vacate the premises.” According to the landlords:

Our statutory scheme . . . establishes an orderly process, with
some provisions for curing, negotiating, and extensions of time, . . .
prior to the landlord filing for a judicial order of removal. Indeed, if
every landlord dispossession required a judicial order, the deluge
of cases would likely quickly overtax the capacity of the courts of
this State. The trial court’s ruling upsets that conscientious
balance and tips the scale in favor of the tenant.

1 Indeed, the quoted paragraph at issue in this case is part of a revision to the form that was
recommended by a subcommittee of the New Hampshire Access to Justice Commission (the
Commission). The proposed revisions were then reviewed and further modified by circuit court
judges and circuit court clerks of court and later promulgated by the administrative judge for the
circuit court.
We created the Commission in January 2007 consistent with Part I, Article 14 of the State
Constitution so as to “expand access to and enhance the quality of justice in civil legal matters for
New Hampshire residents.” The language at issue was added to the form in 2018 “to provide
parties with more complete information about their rights and responsibilities under RSA
[chapter] 540.”

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 In effect, the landlords argue that the statutory scheme purposely
intends that tenants not be informed of the legal significance of the statutorily-
mandated eviction notice so as to prevent tenants from being aware of their
legal right to contest evictions. The landlords assert that, if a tenant is aware
of his right to contest an eviction, then every tenant will do so and every
“landlord dispossession [will require] a judicial order,” resulting in a “deluge of
cases.” We decline to attribute to the legislature an intent to ensure that
tenants are not informed of their right to contest what may be a false or
mistaken attempt to evict in the hope that tenants will erroneously believe that
the eviction notice does require them to vacate, regardless of whether they have
a defense to the eviction.

Although we have interpreted the statutory language in RSA 540:5, II
according to its plain meaning, and, therefore, need not look beyond it for
further indication of legislative intent, see JP Morgan Chase Bank v. Grimes, 167 N.H. 536, 537 (2015), we note that the legislative history supports our
construction. RSA 540:5, II had its genesis in House Bill (HB) 1116 in the
2006 legislative session. See Laws 2006, 192:2. The purpose of HB 1116 as it
related to RSA 540:5, II was to “direct[ ] the district court system to create
forms for both the Demand for Rent and Eviction Notice for use by landlords in
order to minimize the number of eviction actions dismissed for technical
defects that sometimes occur in such documents when prepared by non-
lawyers.” N.H.H.R. Jour. 656 (2006).

The landlords’ interpretation of RSA 540:5, II is contrary to the stated
intent of the provision, which is to encourage landlords to use judicial branch
forms. The landlords’ construction, however, would have the opposite effect. It
would encourage landlords to use their own forms that omit important
information for tenants, such as that the notice is not a court order requiring
the tenant to vacate. The landlords’ construction would, in effect, create two
classes of tenants — those who are informed of their legal rights and those who
are not informed of their legal rights, all at the landlord’s discretion. This was
not the legislature’s intent.

Alternatively, the landlords argue that, even if the quoted language from
the judicial branch form is required, dismissal was not the proper remedy.
However, contrary to the landlords’ assertions, we have consistently ruled that
strict compliance with the mandates of RSA chapter 540 is required. See
Buatti v. Prentice, 162 N.H. 228, 230 (2011); So. Willow Properties, 159 N.H. at
498; Matte, 152 N.H. at 218; Lavoie v. Szumiez, 115 N.H. 266, 267 (1975). A
dismissal on the grounds that the landlord’s eviction notice fails to comply with
statutory requisites is not a judgment on the merits and does not preclude the
landlord from filing a new eviction notice and a new writ for possession. See
So. Willow Properties, 159 N.H. at 499 (holding that “the trial court’s dismissal,
based upon a technical defect in the notice to quit, was not a decision on the
merits” and, accordingly, did not bar the landlord’s second lawsuit). Of course,

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“it is within the power of the legislature to determine the proper remedy” for a
landlord’s failure to comply with RSA 540:5, II, “should it wish to do so, by
enactment of appropriate legislation.” Buatti, 162 N.H. at 231.

For all of the above reasons, therefore, we affirm the trial court’s
dismissal of the eviction proceeding in this case.

Affirmed.

BASSETT and DONOVAN, JJ., concurred; BROWN, J., retired superior
court justice, specially assigned under RSA 490:3, concurred; HANTZ
MARCONI, J., concurred specially.

HANTZ MARCONI, J., concurring specially. Although I join the court’s
opinion in full, I write separately to underscore what I take to be the limited
nature of the opinion’s holding. The court does not hold today that the
judiciary has free rein to legislate requirements for summary process actions in
addition to those specified in RSA chapter 540. The court does not, for
example, address whether the judiciary, under the auspices of RSA 490:26-d,
could craft a standard eviction notice form that advised tenants as to the
circumstances in which they may have a defense to eviction. See, e.g., RSA
540:13-a (2007) (establishing retaliation as a defense in possessory actions
under certain circumstances). Rather, as the court notes, the language at
issue does no more than inform tenants of the legal effect of the notice on
which that language appears. Although the provision of such information, in
this context, may be “necessary for the effective administration of justice,” RSA
490:26-d (2010), we ought not uncritically assume that everything that
furthers the administration of justice is necessary therefor. Understanding the
court’s opinion as not having done so in this case, I join that opinion in full.

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