Maia Magee v. Vita Cooper

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Milford District Division
No. 2020-0472

MAIA MAGEE

v.

VITA COOPER

Submitted: September 28, 2021
Opinion Issued: December 3, 2021

Wadleigh, Starr & Peters, PLLC, of Manchester (Craig Donais and
Stephen Zaharias on the brief), for the plaintiff.

Bruce J. Marshall Law Offices, P.L.L.C., of Bow (Bruce J. Marshall on the
brief), for the defendant.

HICKS, J. The plaintiff, Maia Magee (tenant), appeals an order of the
Circuit Court (Derby, J.), following an evidentiary hearing, entering judgment
for the defendant, Vita Cooper (landlord), on the tenant’s claim that the
landlord willfully violated her right to quiet enjoyment of residential property.
See RSA 540-A:2, :4 (2021). We affirm.
I. Background

On August 4, 2020, the trial court continued a final hearing in a
separate eviction matter brought by the landlord against the tenant. A week
after the continuance was granted, the tenant filed the present action alleging
that the landlord had willfully violated her right to quiet enjoyment under RSA
540-A:2.

The tenant alleged that, in retaliation for the August 4 continuance of the
eviction proceeding, the landlord: (1) played “loud” rock music on an outdoor
stereo system early in the morning and during the day from 8:30 a.m. on
Friday, August 7 until 8:30 p.m. on Sunday, August 9, and “for several hours”
after 6:00 p.m. on Monday, August 10; (2) yelled “GET OUT OF MY HOME!”
loudly from her property on August 10; (3) either shot a gun or ignited
firecrackers during the evening of August 9 and between 7:00 a.m. and 8:30
p.m. on August 10; and (4) had an unknown and unidentified man, carrying a
camera, trespass on the leased property on August 9. Additionally, the tenant
alleged that the landlord breached a term of her lease prohibiting the tenant
from playing a “musical instrument, radio, television, or other like device in the
leased premises in a manner offensive to other occupants of the building” or
during certain hours.

The trial court held a final evidentiary hearing on the petition. Both
parties submitted offers of proof, supplemented by the tenant’s testimony and
video recordings. Thereafter, the trial court entered judgment for the landlord.
This appeal followed.

II. Analysis

On appeal, the tenant argues that the evidence compelled a finding that
the landlord willfully violated her right to quiet enjoyment. She asserts that, in
finding to the contrary, the trial court improperly failed to consider the timing
of the alleged “bad actions,” and misconstrued and mischaracterized certain
items of evidence. Furthermore, the tenant contends that the trial court erred
by: (1) considering each of the landlord’s alleged “bad actions” individually,
rather than considering whether, collectively, such actions violated her right to
quiet enjoyment; (2) not considering whether the landlord’s alleged “bad
actions” violated the parties’ lease; and (3) relying upon the tenant’s failure to
submit evidence of a local sound ordinance.

Before proceeding to consider the record before us, we briefly address our
standard of review. A standard of review lies at the heart of the appellate
function. It sets forth the amount of deference to be accorded the decision
under review. In a landlord-tenant appeal taken under RSA chapter 540-A, the
legislature has prescribed the standard of review that governs certain cases.
RSA 540-A:4, V states: “The findings of facts shall be final but questions of law

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may be transferred to the supreme court in the same manner as from the
superior court.” RSA 540-A:4, V (2021) (emphasis added). By the statute’s
plain terms, review is limited and, as to factual findings, it is highly deferential.

With respect to the standard of review in this case, we apply binding
precedent from Miller v. Slania Enterprises. See Miller v. Slania Enterprises, 150 N.H. 655 (2004). The Miller Court cited but did not discuss the standard
of review prescribed in RSA 540-A:4, V. Id. at 659. Instead, it quoted and
adopted the standard set forth in Sherryland v. Snuffer, 150 N.H. 262, 265
(2003). Id. Sherryland concerned an eviction from a manufactured housing
park for nonpayment of rent pursuant to RSA chapter 205-A and the tenant’s
retaliation defense under RSA chapter 540. Sherryland, 150 N.H. at 263, 265-
66. There was no discussion in Sherryland of RSA 540-A:4, V. See id. at 266-
69.

Whether there are substantive differences between the Miller standard
and the standard set forth by the legislature in RSA 540-A:4, V is a question
for another day. Because there is no stare decisis argument before us, we will
apply the Miller standard to this case.

RSA 540-A:2 prohibits a landlord from “willfully violat[ing] a tenant’s
right to quiet enjoyment of [her] tenancy.” The statute protects a tenant’s right
to quiet enjoyment, a common law doctrine that obligates a landlord to refrain
from interfering with a tenant’s right to possession of leased property during
the tenancy. DiMinico v. Centennial Estates Coop., 173 N.H. 150, 156 (2020).
We construe RSA 540-A:2 to conform to the common law. See Adams v.
Woodlands of Nashua, 151 N.H. 640, 641 (2005).

A landlord violates a tenant’s right to quiet enjoyment when she
substantially interferes with the tenant’s beneficial use or enjoyment of the
leased property. DiMinico, 173 N.H. at 156. To constitute a violation of RSA
540-A:2 and trigger the damages provisions of RSA 540-A:4, however, the
landlord must act “willfully.” Id. at 160. “‘Willfully’. . . denotes a voluntary and
intentional act, and not a mistaken or accidental act.” Wass v. Fuller, 158 N.H.
280, 283 (2009).

Whether a landlord has substantially interfered with a tenant’s right to
quiet enjoyment, or has done so willfully, are questions of fact. See DiMinico,
173 N.H. at 156-57; cf. West v. Turchioe, 144 N.H. 509, 513 (1999)
(determining “whether a party is willfully underemployed is a question of fact
for the fact finder”). Therefore, we will uphold the trial court’s findings and
rulings unless they lack evidentiary support or are otherwise tainted by error of
law. DiMinico, 173 N.H. at 157; Randall v. Abounaja, 164 N.H. 506, 508
(2013). “[O]ur inquiry is to determine whether the evidence presented to the

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trial court reasonably supports its findings, and then whether the court’s
decision is consonant with applicable law.” Miller, 150 N.H. at 659 (quotation
omitted).

In the instant case, the trial court found that the tenant had not
demonstrated “that the alleged gun shots and firecrackers were in retaliation
against the tenant for the outcome of the August 4 hearing.” Nor had the
tenant provided evidence connecting the trespassing photographer to the
landlord. With respect to the music and yelling, the trial court found that the
landlord’s actions did not substantially interfere with the tenant’s quiet
enjoyment. The trial court reasoned that the music “was played during a
summer weekend when people generally listen to music outside,” that it “did
not appear to overpower regular conversation,” and that some of the videos
appeared to have been recorded either from or close to the landlord’s lot.

Contrary to the tenant’s assertions, her allegations were not
uncontroverted. Although the landlord admitted that she played music at
times during the relevant weekend and ignited a few firecrackers on the
evening of August 9, she denied that she played music continuously for several
days on end, that the music was loud, or that she set off fireworks during both
pre-dawn and post-sunset hours over a multiple-day period. Even if such
claims had been uncontested, however, the trial court was not required to
credit them. See Town of Newbury v. Landrigan, 165 N.H. 236, 240 (2013)
(explaining that the trial court may accept or reject, in whole or in part, any
evidence presented by the parties). Moreover, the trial court heard evidence
disputing the tenant’s contention that the landlord deliberately attempted to
remove the tenant. As such, we conclude the trial court’s decision was
reasonable and supported by sufficient evidence. See Miller, 150 N.H. at 659.

The tenant’s remaining arguments are not preserved for our review. The
appealing party must provide this court with a record demonstrating that she
raised her appeal issues in the trial court. Bean v. Red Oak Prop. Mgmt., 151
N.H. 248, 250 (2004). “The trial court must have had the opportunity to
consider any issues asserted by the appellant on appeal; thus, to satisfy this
preservation requirement, any issues which could not have been presented to
the trial court prior to its decision must be presented to it in a motion for
reconsideration.” McDonough v. McDonough, 169 N.H. 537, 545 (2016); see
Dist. Div. R. 1.8(I) (stating that, to preserve challenge to alleged errors in trial
court’s decision not raised previously in the case, appealing party must identify
errors in motion to reconsider).

Here, the tenant has failed to provide a record demonstrating that she
argued in the trial court, as she argues on appeal, that the trial court erred by
failing to consider the landlord’s actions collectively, by failing to determine
whether the landlord breached the lease, and by relying upon the tenant’s

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failure to submit evidence of a local sound ordinance. Accordingly, we decline
to consider the merits of these arguments. See McDonough, 169 N.H. at 545.

We conclude that the tenant has failed to meet her burden to establish
that there is a question of law warranting reversal, see RSA 540-A: 4, V, nor
has she overcome the Miller/Sherryland review precepts. Accordingly, we
affirm the decision of the trial court.

To the extent the landlord requests an award of attorney’s fees incurred
in defending this appeal, the request is denied without prejudice. The landlord
may renew this request by filing a properly-supported motion for attorney’s
fees. See Sup. Ct. R. 23.
Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

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