Alex Luis Morales v. Zenandre Braccio

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0586, Alex Luis Morales v. Zenandre
Braccio, the court on June 22, 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 plaintiff, Alex Luis Morales, appeals an order
recommended by a judicial referee (Boyle, R.) and approved by the Circuit
Court (Lyons, J.) denying his request for attorney’s fees incurred in responding
to post-trial motions filed by the defendant, Zenandre Braccio, in a
landlord/tenant action brought under RSA chapter 540-A. We reverse and
remand.

I

The record supports the following facts. In March 2022, the plaintiff filed
a tenant’s petition under RSA 540-A:4. The Circuit Court (Chabot, J.) issued a
temporary order: (1) finding that the plaintiff was in immediate threat of
irreparable harm due to the action of the defendant; (2) ordering that the
defendant immediately restore and maintain all utility services; and (3)
restraining the defendant from violating the plaintiff’s right to quiet enjoyment.
On April 20, following a hearing, the Circuit Court (Gardner, J.) approved a
final order finding that the defendant had violated RSA 540-A:3, I, by willfully
interrupting utility services. The court ordered the defendant to pay $7,000 in
damages and awarded the plaintiff attorney’s fees “to be determined by
affidavit.” (Capitalization omitted.)

On May 10, the defendant moved to vacate the final order and requested
attorney’s fees under RSA 540-A:4, X “for having to file [the] motion to vacate.”
See RSA 540-A:4, X (2020) (“If an action initiated under RSA 540-A:3 is found
to be frivolous or brought solely for harassment, the plaintiff shall pay to the
defendant the cost of such action including reasonable attorney’s fees.”). The
plaintiff objected and requested that the court order the defendant to pay his
attorney’s fees “in responding to the Motion.” On May 24, the Circuit Court
(Lyons, J.) denied the defendant’s motion to vacate “for all of the reasons cited
by Plaintiff in his Objection” and ruled that “[n]either party is awarded
Attorney’s fees.”

The plaintiff moved for reconsideration of the court’s May 24 order,
arguing that “[t]he present motion practice [was] a direct extension of the
underlying 540-A petition” and because “it challenges the underlying order it
should also be covered by the grant of authority for [attorney’s] fees” under RSA
540-A:4, IX. The plaintiff asked the court to award him attorney’s fees for his
“review and response to the defendant’s motion to vacate.” The defendant also
moved for reconsideration of the May 24 order, to which the plaintiff objected.
On June 17, the trial court denied the defendant’s motion “for all of the
reasons cited by” the plaintiff in his objection. (Capitalization omitted.) On
June 21, the court issued an order on the plaintiff’s motion for reconsideration
of the May 24 order. The June 21 order stated: “As stated in the Court’s Order
dated April 20, 2022, the Landlord is responsible for Attorney fees on the
underlying case in an amount to be determined by Affidavit. No Attorney fees
are awarded to either party for post trial motions.” This appeal followed.

II

On appeal, the plaintiff argues that the trial court erred in failing to
award his attorney’s fees “in accordance with RSA 540-A:4 and RSA 358:10 for
the necessity of responding to Defendant’s post-trial motions.” The plaintiff
asserts that under Simpson v. Young, 153 N.H. 471 (2006), a prevailing
plaintiff in an appeal may recover for attorney’s fees and costs pursuant to RSA
540-A:4, IX and that “there exists no limitation in RSA 540-A:4 on post-trial
proceedings or attorney’s fees generated from an opposing party’s post-trial
legal actions directly resulting from the initial violation.” The defendant
counters that, although RSA 540-A:4, IX(a) allows for an award of costs and
reasonable attorney’s fees, “it appears that the trial court at least implicitly
determined that it would not be reasonable to award Plaintiff any attorney’s
fees relating to any post-trial motions.” In addition, he asserts that Simpson
“is only limited to deciding the issue about fees incurred on appeal to this
Court.”

Pursuant to RSA 540-A:4, IX, “[a]ny landlord . . . who violates . . . any
provision of RSA 540-A:3 shall be subject to the civil remedies set forth in RSA
358-A:10 for the initial violation, including costs and reasonable attorney’s fees
incurred in the proceedings.” RSA 540-A:4, IX(a). In turn, RSA 358-A:10
provides that “a prevailing plaintiff shall be awarded the costs of the suit and
reasonable attorney’s fees, as determined by the court.” RSA 358-A:10, I
(2022).

We determined in Simpson that “proceedings,” in the context of RSA 540-
A:4, IX, means “the regular and orderly progression of a lawsuit, including all
acts and events between the time of commencement and the entry of
judgment.” Simpson, 153 N.H. at 480 (quotation and brackets omitted).
“Entry of judgment” means “the ministerial recording of a court’s final
decision.” Id. (quotations and brackets omitted). We reasoned that, because
the trial court “will not enter a ‘final judgment’ until the expiration of the
appeal period or until after the conclusion of the appeal,” an appeal “may be an

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‘act . . . between the time of commencement and the entry of judgment,’ and
may, thus, constitute a ‘proceeding.’” Id. Therefore, we held that “a prevailing
plaintiff is eligible to recover reasonable attorney’s fees and costs, pursuant to
RSA 540-A:4, IX, for a successful appeal.” Id.

The same reasoning applies here. The plaintiff’s pleadings filed between
his tenant’s petition and this appeal, including his post-trial motions,
constitute “acts . . . between the time of commencement and the entry of
judgment.” Id. (quotation omitted). Accordingly, the plaintiff is entitled to
recover reasonable attorney’s fees pursuant to RSA 540-A:4, IV, and we
determine that the trial court erred as a matter of law in ruling otherwise. See
RSA 540-A:4, IX(a) (“[a]ny landlord . . . who violates . . . any provision of RSA
540-A:3 shall be subject to . . . reasonable attorney’s fees incurred in the
proceedings” (emphasis added)); RSA 358-A:10, I (“a prevailing plaintiff shall be
awarded . . . reasonable attorney’s fees” (emphasis added)).

Reversed and remanded.

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

Timothy A. Gudas,
Clerk

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