Winnie Zeng v. Ryan Amaro

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0717, Winnie Zeng v. Ryan Amaro, the
court on October 2, 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 defendant, Ryan Amaro (tenant), appeals an order of the Circuit
Court (Gorman, J.) that, among other things, awarded the landlord, Winnie
Zeng, possession of the premises. We affirm.

We will uphold the findings and rulings of the trial court unless they lack
evidentiary support or are legally erroneous. Green v. Sumner Props., 152 N.H.
183, 184 (2005). 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 tenant first argues that the trial court erred by denying
his motion to dismiss or for a continuance based upon the landlord’s failure to
provide certain discovery. Whether to dismiss or to continue a case for failure
to comply with a discovery order is within the trial court’s sound discretion.
See Estate of Sicotte v. Lubin & Meyer, 157 N.H. 670, 673 (2008) (concerning
dismissal); In the Matter of Kempton & Kempton, 167 N.H. 785, 793 (2015)
(concerning continuance). We review both decisions under our unsustainable
exercise of discretion standard. Kempton, 167 N.H. at 793. To meet this
standard, the tenant must demonstrate that the trial court’s ruling was clearly
untenable or unreasonable to the prejudice of his case. See Kukesh v. Mutrie, 168 N.H. 76, 80 (2015).

Here, the trial court determined that its order granting the tenant’s
motion for discovery had not been served on the parties. Accordingly, the trial
court did not find that the landlord failed to comply with its discovery order
and, therefore, declined to dismiss the landlord’s action or to continue it as a
discovery sanction. Additionally, the tenant has not demonstrated that the
landlord’s failure to provide certain of the information sought in discovery
caused him prejudice. For instance, to the extent the tenant sought receipts
showing his rental payments, the landlord provided them at trial, and the
tenant admitted that he failed to pay rent for October and November.
Similarly, to the extent that the tenant sought information relevant to his claim
that the landlord failed to comply with the statute governing security deposits,
he prevailed on that claim. Accordingly, under all of the above circumstances,
we cannot say that in denying the tenant’s motion to dismiss or for a
continuance, the trial court unsustainably exercised its discretion.

The tenant next asserts that the trial court erroneously calculated his
damages on his counterclaim asserting that the landlord had failed to comply
with the statute governing security deposits. See RSA 540-A:6 (Supp. 2019).
The trial court found that the landlord violated RSA 540-A:6, I(b) because she
“failed to deliver to the tenant a signed receipt stating the amount of the
security deposit and specifying the place where the deposit would be held.” See
RSA 540-A:6, I(b). The court found that the landlord also violated RSA 540-
A:6, II(a) because she “failed to hold the security deposit in trust and not co-
mingle the funds with [her] personal money[ ].” See RSA 540-A:6, II(a).

RSA 540-A:8, I, provides that “[a]ny landlord who does not comply with
RSA 540-A:6, I, II or III shall be deemed to have violated RSA 358-A:2.” RSA
540-A:8, I (2007). RSA 358-A:2 sets forth acts deemed unlawful under the
Consumer Protection Act (CPA). See RSA 358-A:2 (Supp. 2019) (amended
2020). Pursuant to RSA 358-A:10, I, under the CPA, “[i]f the court finds for the
plaintiff, recovery shall be in the amount of actual damages or $1,000,
whichever is greater.” RSA 358-A:10, I (2007). “If the court finds that . . . the
act . . . was a willful or knowing violation . . . , it shall award as much as 3
times, but not less than 2 times, such amount.” Id.

Here, the trial court determined that because the tenant had not shown
any actual damages, he was entitled to the statutory minimum amount of
damages, $1,000. See id. The court then doubled the amount because it
found that the landlord’s violation was knowing, but declined to triple it
because it found that the violation was not willful. See id.

The tenant argues that the trial court erred by not considering each
violation of RSA 540-A:6 separately and awarding him damages for each
violation. He contends that had the trial court done so, it would have then
been compelled to dismiss the landlord’s claim for possession of the premises.
See RSA 540:13, III (2007) (providing, in pertinent part, that “[i]f the court
determines that the amount owed by the landlord to the tenant, as a result of
set-off or counterclaim, exceeds or equals the amount of rent and other lawful
charges owed by the tenant to the landlord, judgment in the possessory action
shall be granted in favor of the tenant”).

The tenant, however, has not provided a record demonstrating that he
made this argument in the trial court. It is a long-standing rule that a party
may not have judicial review of issues he did not raise in the trial court. Bean
v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). It is the tenant’s burden,
as the appealing party, to demonstrate that he specifically raised the
arguments articulated in his brief before the trial court. Thompson v. D’Errico,
163 N.H. 20, 22 (2011). To satisfy this preservation requirement, issues which

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could not have been presented to the trial court before its decision had to have
been presented to it in a motion for reconsideration. See N.H. Dep’t of
Corrections v. Butland, 147 N.H. 676, 679 (2002). Our rules are not relaxed
for self-represented parties. See In the Matter of Birmingham & Birmingham,
154 N.H. 51, 56-57 (2006). Because the tenant has failed to demonstrate that
he ever argued in the trial court that the court had mistakenly calculated his
damages, we decline to address the merits of that argument on appeal.

The tenant next contends that the trial court erred when it denied his
motion to dismiss the case based upon the landlord’s allegedly improper
service of the demand for rent and eviction notice. RSA 540:5, I, provides: “Any
notice of a demand for rent or an eviction notice may be served by any person
and may be served upon the tenant personally or left at his or her last and
usual place of abode.” RSA 540:5, I (Supp. 2019); see 4 Gordon J. MacDonald,
New Hampshire Practice: Wiebusch on New Hampshire Civil Practice and
Procedure § 10.03, at 10-4 (4th ed. 2014) (explaining that process may be
served upon natural persons who are present or reside in New Hampshire “by
giving a copy of the process to him or her at any place within the state (‘in-
hand service’) or by leaving a copy of the process at his or her New Hampshire
abode (‘abode service’)” (footnote omitted)). By statute, a person’s “abode” is
“that designated by a person as his or her principal place of physical presence
to the exclusion of all others.” RSA 21-6:a (Supp. 2019).

“The issue critical to determining whether service has been properly
perfected on an abode[ ] is whether the place where the process is left is the
place where the defendant has been living and to which he or she may be
expected to return in sufficient time to become apprised of the action and to
prepare a response.” Nault v. Tirado, 155 N.H. 449, 451 (2007) (quotations
and ellipsis omitted). “The issue is not resolved by the character of the
premises or the length of time in which the defendant has been in residence.
Thus, an abode may include the defendant’s house, a hotel room, or a camping
trailer.” MacDonald, supra § 10.04, at 10-5.

Here, the evidence supports the trial court’s determination that the
landlord left the demand for rent and eviction notice at “the place where the
defendant [had] been living and to which he . . . [might] be expected to return”
by placing them in his apartment door. Nault, 155 N.H. at 451 (quotation
omitted). The landlord testified that she “stuck” the demand for rent and
eviction notice in the door to the tenant’s apartment. She testified that, before
doing so, she “bang[ed] [on] his door,” but that the tenant locked the door and
refused to open it. The tenant testified that the photograph that the landlord
submitted to show service of the documents depicted the documents in the
door to his apartment. Nonetheless, the tenant claimed that he never received
either the demand or the eviction notice. The trial court was not compelled to
credit his testimony, and we will not disturb the trial court’s credibility
determinations on appeal. See Green, 152 N.H. at 184. Under these

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circumstances, we conclude that the trial court did not err by finding that the
landlord had properly perfected abode service.

The tenant argues that, to be lawful, the demand for rent and eviction
notice had to be “left somewhere exclusive” to him. (Quotation omitted.) He
asserts that leaving those documents in his apartment door is insufficient
because the door faces a hallway to which others have access. To support this
assertion, he relies upon an unpublished circuit court order in another eviction
case involving different parties. However, such an order does not constitute
binding precedent. Nor do we find the unpublished trial court order persuasive
absent any information showing that the facts in the other eviction case are
similar to those in this case.

Affirmed.

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

Timothy A. Gudas,
Clerk

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