ARAA West Side Holdings, LLC v. Eric Bresett & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0368, ARAA West Side Holdings, LLC v.
Eric Bresett & a., the court on April 7, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendants, Eric Bresett and Crystal Soto (tenants),
appeal an order recommended by a referee (Kent, R.) and approved by the
Circuit Court (Lyons, J.), entering judgment in favor of the plaintiff, ARAA West
Side Holdings, LLC (landlord), in this possessory action for reasons other than
non-payment of rent, and determining that the tenants had failed to establish
that the eviction was retaliatory. On appeal, they argue, among other things,
that the trial court erred by rejecting their retaliation defense. We vacate and
remand.

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). We review questions
of law de novo. Miller v. Slania Enters., 150 N.H. 655, 659 (2004).

Under RSA 540:13-a, III (2021), a tenant who is less than one week in
arrears may defeat an eviction action by proving that the eviction action was
brought in retaliation for the tenant meeting with other tenants for a lawful
purpose. “In certain circumstances, the tenant is entitled to a rebuttable
presumption of retaliation under RSA 540:13-b [(2021)].” White Cliffs of Dover
v. Bulman, 151 N.H. 251, 254 (2004). RSA 540:13-b provides, in pertinent
part:

Unless the court finds that the act of the tenant . . . in
organizing relative to alleged violations by a landlord was primarily
intended to prevent any eviction, a rebuttable presumption that
such possessory action was in retaliation of the tenant’s action
shall be created when any possessory action, increase in rent or
any substantial alteration in the terms of the tenancy is instituted
by a landlord within 6 months after:
....

IV. The discovery by the landlord of activity protected by RSA
540:13-a, III.

RSA 540:13-b, IV.
 In this case, the possessory action was filed on May 5, 2022. Therefore,
for the rebuttable presumption to apply, the landlord must have discovered the
tenants’ alleged protected activity (here, attendance at a tenant meeting) within
six months of May 5, 2022. See Bulman, 151 N.H. at 254. Six months before
May 4, 2022 was November 5, 2021. Thus, the tenants were entitled to a
rebuttable presumption upon proof that between November 6, 2021, and May
5, 2022, the landlord discovered their attendance at the tenant meeting.

In rejecting the tenants’ retaliation defense, the trial court mistakenly
focused upon whether their alleged protected activity occurred before or after
“the eviction notice was given.” We have held that for the purposes of the
rebuttable presumption, service of an eviction notice (also known as a notice to
quit) “does not meet the statutory requirement of instituting a possessory
action.” Bulman, 151 N.H. at 254-55; see Hynes v. Hale, 146 N.H. 533, 539
(2001) (“Although the notice to quit may be a requisite step in the eviction
process, it is not itself an eviction action.”). Accordingly, the trial court’s focus
upon whether the alleged protected activity occurred before or after the eviction
notice was served constituted legal error.

To the extent that the trial court found that the alleged protected activity
occurred after the landlord/tenant writ was filed, the trial court was mistaken
as a matter of fact. The evidence before the trial court was that the tenant
meeting occurred on April 23, 2022, which was nearly two weeks before the
landlord/tenant writ was filed on May 5, 2022.

We are unable to determine as a matter of law, based upon the record
before us, whether the rebuttable presumption applied and, if so, whether the
landlord sufficiently rebutted it. Nor are we able to determine, as a matter of
law, based upon the record before us, whether, even if the rebuttable
presumption did not apply, the tenants established their retaliation defense.
Under these circumstances, we vacate the trial court’s determination that the
tenants failed to establish their retaliation defense and remand for further
proceedings consistent with this order.

Vacated and remanded.

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

Timothy A. Gudas,
Clerk

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