Li Wei Lin v. Idalmy Castro

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0608, Li Wei Lin v. Idalmy Castro, the
court on March 28, 2024, 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 defendant, Idalmy Castro (tenant), appeals an order of the Circuit
Court (Manchester, J.) issuing the plaintiff, Li Wei Lin (landlord), a writ of
possession. We affirm.

I

The following facts were found by the trial court or are part of the record
submitted on appeal. Tenant rented an apartment unit in Manchester. The
history of rent payments between the parties is irregular. Receipts from 2020-
2022 indicate that tenant would make payment at varying times during the
month, including mid-month payments. On August 13, 2023, landlord served
tenant an eviction notice and demand for rent, asserting tenant failed to pay rent
for the period of July 1, 2023 until August 31, 2023 and, therefore, owed $2,550
in back rent. The notice indicates that it was left at tenant’s abode. Tenant
asserts that she did not receive the notice.

The trial court held a hearing on September 21, 2023. On September 20,
2023, tenant obtained money orders in the amount of $2,550, the outstanding
rent per the eviction notice, and she texted landlord a photograph of the money
orders. Landlord responded, “I not accept that, please wait for tomorrow[’s]
hearing, again I don’t want to have any pointless argument with you.” At the
hearing, landlord confirmed that tenant sought to pay the outstanding rent for
July and August, but he explained that he would not accept the payment
because, in addition to rent, he was owed court and late fees. Specifically,
landlord testified, “[t]he amount is 2,550, but I’m not agreed. Since like last
month, she don’t want to respond to any court fee, late fee.” Neither party
provided additional evidence of any discussions regarding the amount of fees
owed to landlord. Landlord testified that tenant owed rent for July and August
and had also not paid for September. The eviction notice provides:

To avoid eviction, you must pay your landlord the following amounts
before your hearing in court:

• All rent due or past due as of the day you make your payment;
 • $15 in liquidated damages;

• Any other lawful charge(s) under your lease that you owe your landlord;
and

• If you pay after an eviction case (Landlord and Tenant Writ) is filed in
court, you must also pay the filing fee ($125) and any service costs,
which are listed on the sheriff’s return of service.

Landlord paid the sheriff $71.84 in service costs.

II

Tenant contends that the trial court contravened RSA 540:9, I (2021) when
it declined to find that her tender to landlord of $2,550 in money orders
necessitated dismissal. Consistent with the eviction notice, RSA 540:9, I,
provides:

I. Any possessory action based solely on nonpayment of rent shall be
dismissed if both of the following occur:

(a) The tenant, at any time prior to the hearing on the merits, pays to
the landlord . . . all rent due and owing through the time of such
payment plus other lawful charges contained in the lease, $15
liquidated damages, and any filing fee and service charges incurred
by the landlord in connection with the possessory action; and

(b) The landlord also submits prior to the hearing date a receipt of
such payment to court and states in writing that a copy of same
receipt has also been forwarded to the tenant prior to the time and
date of the hearing on the merits. If the landlord fails to file such
receipt the hearing on the merits shall proceed, and if the tenant
proves that payment has been made in accordance with
subparagraph (a), the case shall be dismissed.

RSA 540:9, I (a), (b). Tenant argues that if RSA 540:9, I, is to have its intended
remedial effect, a landlord should not be permitted to reject a tenant’s offer to pay
the rent amount identified in the eviction notice and required by the demand for
rent.

On appeal, landlord argues that tenant’s attempted payment of $2,550 was
inadequate because at the time of the September 21, 2023 hearing tenant now
owed more than the $2,550 set forth in the demand for rent. Landlord argues
that RSA 540:9, I’s “all rent due and owing through the time of such payment”
language requires a tenant to tender a complete payment of all rent owed at the

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time of the offer regardless of the amount set forth in the demand for rent. In
this case, landlord argues September’s rent must have also been included to
require dismissal. We need not reach the issue of the lack of inclusion of
September rent, because we agree with landlord’s alternative argument that,
“Even if [tenant] was only required to pay the amount of the demand for rent and
not all rent due when the offer of payment was made, [tenant] failed to offer to
pay the fifteen dollar liquidated damages set forth in RSA 540:9 and therefor by
any standard of calculating the payment required to defeat the eviction, [tenant]
failed to offer an amount that would have satisfied RSA 540:9.”

Although tenant argues that she “was not notified of the full amount
owed,” the $15 in liquidated damages and the $125 filing fee are set forth in the
eviction notice and RSA 540:9. Further, because the return of service is filed
with the court, the information about those fees is available through inquiry with
the trial court. Here, tenant did not attempt to pay any amount other than the
rent owed per the demand for rent.

Tenant contends that “[i]f the trial court’s decision is affirmed, then any
landlord can refuse a payment made before the hearing on the merits in an
eviction proceeding and evict the tenant.” However, RSA 540:9, I(b) expressly
contemplates such a circumstance. It provides that “If the landlord fails to file
such receipt [of the tenant’s curative payment] the hearing on the merits shall
proceed, and if the tenant proves that payment has been made in accordance
with subparagraph (a), the case shall be dismissed.” Id. In this case, tenant
demonstrated at trial that she had obtained money orders in the amount of the
rent owed only and therefore was not entitled to dismissal.

Tenant also argues that eviction is flawed because she did not receive the
notice of eviction or the demand for rent. At the hearing, tenant stated “I haven’t
received records of eviction[,]” possibly in reference to the eviction notice and the
demand for rent. Landlord, however, indicated on the notice of eviction and the
demand for rent that service was made by leaving the notice at tenant’s abode.
The trial court concluded in its final order that landlord properly served a written
eviction notice to tenant. We defer to the trial court’s judgment on such issues
as resolving conflicts in the testimony, measuring the credibility of witnesses,
and determining the weight to be given evidence, Cook v. Sullivan, 149 N.H. 774,
780 (2003), and we will uphold the findings and rulings of the trial court unless
they lack evidential support or are legally erroneous. Green v. Sumner
Properties, LLC, 152 N.H. 183, 184 (2005). Here, the court cannot conclude that
the trial court’s determination that landlord had properly completed service lacks
evidentiary support and we therefore defer to its factual finding regarding service.

Finally, to the extent tenant asserts that landlord’s tolerance of an
irregular payment schedule at certain points during the tenancy constitutes an
express or implied modification of the parties’ agreement, the court finds that the

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argument was not presented to the trial court and thus not preserved for
appellate review.

III

Accordingly, the trial court’s order is affirmed.

Affirmed.

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

Timothy A. Gudas,
Clerk

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