Dan Vallerand v. Cheryl Martin & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0235, Dan Vallerand v. Cheryl Martin & a.,
the court on February 15, 2023, issued the following order:

The court has reviewed the written arguments and the limited record
submitted on appeal, and has determined to resolve the case by way of this
order. See Sup. Ct. R. 20(2). The defendants, Cheryl Martin and Stephen
Martin (Tenants), appeal an order of the Circuit Court (Burns, J.) granting
judgment to the plaintiff, Dan Vallerand (Landlord), on his possessory action
based upon nonpayment of rent. We affirm.

We will uphold the trial court’s factual findings unless they are
unsupported by the evidence or erroneous as a matter of law. Town of
Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012). The trial court was
in the best position to evaluate the evidence, measure its persuasiveness, and
assess the credibility of the witnesses, and we defer to its judgment on such
issues. Id. at 66-67. As the fact finder, the trial court was entitled to accept or
reject, in whole or in part, the testimony of any witness or party, and was not
required to believe even uncontroverted evidence. Id. at 67. We review
questions of law de novo. Miller v. Slania Enters., 150 N.H. 655, 659 (2004).

On appeal, Tenants first argue that the trial court erred by ruling that
they had failed to establish a retaliation defense. See RSA 540:13-a (2021).
RSA 540:13-a provides, in pertinent part, as follows:

Except in cases in which the tenant owes the landlord the
equivalent of one week’s rent or more, it shall be a defense to any
possessory action, as to residential property, that such possessory
action was in retaliation for the tenant:

I. Reporting a violation or reporting in good faith what the tenant
reasonably believes to be a violation of RSA 540-A or an
unreasonable and substantial violation of a regulation or housing
code to the landlord . . . ; [or]

II. Initiating an action in good faith pursuant to RSA 540-A or
availing himself of the procedures of RSA 540:13-d.

RSA 540:13-a, I-II (emphasis added). Here, the trial court found, and the
record supports its finding, that Tenants owed Landlord “the equivalent of one
week’s rent or more.” Id. Accordingly, as the trial court correctly ruled, the
defense of retaliation was not available to Tenants.

Tenants next assert that the trial court erred by ruling that they failed to
establish a defense under RSA 540:13-d. See RSA 540:13-d (2021). Under
RSA 540:13-d, I:

No action for possession based on nonpayment of rent shall
be maintained in regard to any premises leased or rented for
residential purposes, other than for vacation or recreation, if such
premises are in substantial violation of the standards of fitness for
health and safety set forth in RSA 48-A or in local codes,
ordinances or bylaws established pursuant thereto, and such
violation materially affects the habitability of said premises,
provided that:

(a) The tenant proves by clear and convincing evidence that, while
not in arrears in rent, he provided notice of the violation to the
person to whom he customarily pays rent; and

(b) The landlord failed to correct the violations within 14 days of the
receipt of such written notice or, in an emergency, as promptly as
conditions require; and

(c) The violations were not caused by the tenant, a member of the
tenant’s family or other person on the premises with the tenant’s
consent; and

(d) Necessary repairs have not been prevented due to extreme
weather conditions or due to the failure of the tenant to allow the
landlord reasonable access to the premises.

RSA 540:13-d, I. The trial court found that Landlord “attempted to repair heat
repeatedly, and Tenant acknowledged that Heat functioned, but that it had to
be run frequently in order to maintain heat in the house.” We interpret this
finding as a determination by the trial court that Tenants failed to prove that
Landlord did not “correct the violations within 14 days of the receipt of [their]
written notice or, in an emergency, as promptly as conditions require.” RSA
540:13-d, I(b); see In the Matter of Salesky & Salesky, 157 N.H. 698, 702
(2008) (explaining that the interpretation of a trial court order is a question of
law, which we review de novo).

The record submitted on appeal establishes that the leased premises is a
cottage that may not be properly insulated. Cheryl Martin testified that the

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cottage is heated by “mini splits.” She acknowledged that the cottage “does
heat up” and agreed with the trial court that it would be “very difficult” for the
cottage to stay warm.

Cheryl Martin testified that, on January 11, 2022, after paying January
rent, she told Landlord that there was a problem with the heat. She testified
that, on January 14, three days later, Landlord attempted to remedy the
problem by installing a second mini split in the living room so that the cottage
now had three mini splits, two in the living room and one in the bedroom. She
testified that on January 14, the heat worked. She testified that she told
Landlord that day, after he had been at the premises all day to fix the heat,
that the heat was now “fine.”

The record establishes that the first written notice that Tenants provided
to Landlord about the heat issues was on January 16, 2022. On January 16,
Cheryl Martin texted Landlord that the heat was still problematic. She testified
that Landlord worked on the heat in the cottage “two days later,” January 18.
Landlord confirmed that he worked on the heat to the cottage on January 18.
Landlord further testified that when he left the cottage on January 18, the heat
was adequate. Landlord testified that he “never heard another word about the
heat” after fixing it on January 18. The record establishes that Tenants next
notified Landlord in writing about heat being an issue on March 7, after
Landlord had initiated these proceedings by serving Tenants with an eviction
notice for nonpayment of rent.

Based upon this record, the trial court reasonably determined that
Tenants had not proved that Landlord did not “correct the violations within 14
days of the receipt of [their] written notice or, in an emergency, as promptly as
conditions require.” RSA 540:13-d, I(b). Because there is support in the record
for the trial court’s determination, we uphold it. See Malborn Realty Trust, 164
N.H. at 66.

Tenants next contend that the trial court erred by not granting a
discretionary stay pursuant to RSA 540:13-c. See RSA 540:13-c (2021). As a
practical matter, Tenants’ eviction has been stayed since April 2022, when they
filed the instant appeal. Moreover, we observe that nothing in the record
demonstrates that the tenants requested that the trial court grant a
discretionary stay. Under these circumstances, we conclude that Tenants’
arguments regarding a discretionary stay under RSA 540:13-c warrant no
extended consideration. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Tenants next contend that they are entitled to damages because
Landlord mishandled their security deposit. Such a claim must be brought
under RSA chapter 540-A. The instant appeal, however, is of the trial court’s

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decision on Landlord’s action for possession of the premises brought under
RSA chapter 540. Accordingly, we conclude that this argument is not properly
before us.

For all of the above reasons, we affirm the trial court’s decision.

Affirmed.

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

Timothy A. Gudas,
Clerk

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