Henry Balch & a. v. Tanya Muniz & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0356, Henry Balch & a. v. Tanya Muniz &
a., the court on June 4, 2021, issued the following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The
defendants, Tanya and Jimmy Muniz (tenants), appeal orders of the Circuit Court
(Kent, R., approved by Lyons and Chabot, JJ.), following a hearing, granting
possession of residential property to the plaintiffs, Henry and Janet Balch
(landlords), for nonpayment of rent, and denying the tenants’ motion for
reconsideration. See RSA 540:2, :12, :13, :14 (Supp. 2020). We affirm.

“We will not disturb the findings of the trial court unless they lack
evidentiary support or are erroneous as a matter of law.” Colonial Village v.
Pelkey, 157 N.H. 91, 92 (2008). “Legal conclusions, as well as the application of
law to fact, are reviewed independently for plain error.” Id. “Accordingly, our
inquiry is to determine whether the evidence presented to the trial court
reasonably supports its findings, and then whether the court’s decision is
consonant with applicable law.” Id. “[W]e generally assume that a fact-finder
makes all of the necessary factual findings to support its conclusion.” Dietz v.
Town of Tuftonboro, 171 N.H. 614, 619 (2019). “Finally, we review questions of
law de novo.” Colonial Village, 157 N.H. at 92.

The pertinent facts are as follows. In July 2020, the trial court held a
hearing on the landlords’ possessory action. At the hearing, counsel for the
landlords represented, in an offer of proof, that “when the eviction notice was
served on February 8th, the demand for rent was 900 dollars.” Counsel stated
that “[t]he eviction notice expired on February 16th,” and that the tenants made
one payment of $300 before the eviction notice expired, “and then another one
made on February 23rd of 520 dollars, which was after the eviction notice
expired.” Accordingly, he argued, the tenants “did not cure the eviction notice.”
See RSA 540:9 (Supp. 2020) (providing tenants with an opportunity to defeat an
eviction for nonpayment of rent by paying the amount due, plus certain
liquidated damages, prior to the expiration of an eviction notice). Subsequently,
one of the landlords testified to similar effect, stating that, after serving the
tenants with the eviction notice on February 8, the tenants did not pay the $900
that was demanded before the expiration of the eviction notice on February 16.
The eviction notice was offered as an exhibit, and has not been provided as part
of the record on appeal. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004) (providing that appealing party has burden of providing all relevant
portions of record on appeal, and that relevant portions of record not provided
are presumed to support trial court’s decision). In response, one of the tenants
testified that she “[has] the receipts to prove that I paid before the court date,”
that she had paid $300 on February 10, that the next payment was made on
February 23, and that “the rest of the payments were done in March, . . . where I
became current on March 12th.” Following the hearing, the trial court ruled in
favor of the landlords, finding, among other things, that the tenants had not paid
the rent as required. The tenants’ motion for reconsideration was denied, and
this appeal followed.

As a threshold matter, we note that the tenants argue, for the first time on
appeal, that they never received the February 8 eviction notice, and that the
landlords never notified them that the landlords planned to proceed with the
eviction even if they paid off the arrearage. See RSA 540:13, VII (providing that a
landlord may accept payment of rental arrearage without creating new tenancy,
so long as landlord informs tenant in writing of landlord’s intent to proceed with
eviction despite acceptance of such payments); Colonial Village, 157 N.H. at 93-
94. However, because the tenants did not object to the admission of the
February 8 eviction notice at the hearing, and because they did not raise these
arguments before the trial court, these arguments are not preserved for our
review. See Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29,
35 (2007) (“Where a party fails to demonstrate that it raised an issue before the
trial court, the issue is not preserved for our review.”); In the Matter of
Birmingham & Birmingham, 154 N.H. 51, 56 (2006) (observing that self-
represented litigants are bound by the same procedural rules that govern parties
represented by counsel).1

Next, we consider the tenants’ argument that the trial court erred when it
found that they had not paid the rent as required. On appeal, the tenants
contend that they cured their nonpayment of rent pursuant to RSA 540:9,
arguing that they “can prove that at the time of the original court date[,] and
when the continue[d] court date happened[,] both times they were caught up on
their rent.” The tenants have attached numerous rent receipts to their appellate
brief in support of this argument. The landlords counter by observing that,
unless the amount due was paid prior to the expiration of the eviction notice,
RSA 540:9 does not provide the tenants with a defense. They argue that the
tenants’ testimony at the hearing “confirms that only one payment of $300.00
was made prior to the expiration of the eviction notice,” and that the next
payment made by the tenants, on February 23, 2020, was after the expiration
date. Although the landlords argue that the tenants’ receipts “were not placed
into evidence before the trial court,” the landlords note that, nonetheless, “these
1 In any event, we note that the trial court found that, even though the tenants claimed they
were, at the time of the hearing, current on their rent obligations, “the [eviction] Notice is clear
that the landlord will proceed.” Given that this finding is also supported by the offer of proof
from the landlords’ counsel, and because neither party provided us with a copy of the February
8 eviction notice, “we must assume that the evidence was sufficient to support the result
reached by the trial court.” Bean, 151 N.H. at 250.

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documents confirm [the tenants’] testimony at trial that only one payment of
$300.00 was made prior to the expiration of the eviction notice.” We agree with
the landlords.

RSA 540:9 provides:

No tenancy shall be terminated for nonpayment of rent, utility
charges, or any other lawful charge contained in a lease or an oral or
written rental agreement if the tenant, before the expiration of the
notice, pays or tenders all arrearages plus $15.00 as liquidated
damages; provided, however, that a tenant may not defeat an
eviction for nonpayment by use of this section more than 3 times
within a 12-month period.

RSA 540:9.

Here, the record reflects that the eviction notice expired on February 16,
2020. Therefore, even if, as the tenants argue, they paid $300 on February 10,
and paid the remainder of the arrearage either on February 23, or at some point
thereafter in advance of the hearing date, the tenants have failed to demonstrate
that they paid the full amount of the arrearage, plus $15, “before the expiration
of the notice.” RSA 540:9 (emphasis added). Indeed, neither the testimony at the
hearing, nor the rent receipts submitted by the tenants on appeal, suggest
otherwise.2 Therefore, having concluded that the tenants failed to demonstrate
that they cured their nonpayment of rent pursuant to RSA 540:9, we need not
address the parties’ remaining arguments with respect to whether the trial court
erred by finding that the February 8 eviction notice was the fourth such notice
within a year. See RSA 540:9 (providing that “a tenant may not defeat an
eviction for nonpayment by use of this section more than 3 times within a 12-
month period”); Antosz v. Allain, 163 N.H. 298, 302 (2012) (declining to address
parties’ other arguments where holding on one issue is dispositive).

2 The tenants also argue that they “only received a demand for rent and one eviction notice for
[$]650[,] and not [$]900.” In support, they attached to their appellate brief an eviction notice
dated February 2, 2020, which states that they owed $650 in back rent. The expiration date of
this eviction notice is February 10, 2020. However, as discussed above, the tenants’ argument
that they never received the February 8 eviction notice is not preserved for our review.
Moreover, because the record reflects that the February 2 eviction notice was not the basis for
this eviction proceeding, and because there is nothing in the record to suggest that the
February 2 eviction notice was ever presented to the trial court, we may not consider it. See
Lake v. Sullivan, 145 N.H. 713, 717 (2001) (“On appeal, we consider only evidence and
documents presented to the trial court.”); Sup. Ct. R. 13.
In any event, we note that even if, as set forth in the February 2 eviction notice, the
amount owed was $650 — not $900 — and even if the expiration date of the notice was
February 10 — not February 16 — the record still reflects that, in either case, the tenants’
payments would not have cured the arrearage before the expiration date of the eviction notice.

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 Accordingly, based on the record before us, we conclude that the trial court
did not err when it found that the tenants had not paid the rent as required, and
granted a writ of possession and judgment in favor of the landlords. See Colonial
Village, 157 N.H. at 92.

Affirmed.

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

Timothy A. Gudas,
Clerk

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