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Regent Park Associates v. Caleb Baird & a. ( 2016 )


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  •                     THE STATE OF NEW HAMPSHIRE
    SUPREME COURT
    In Case No. 2015-0668, Regent Park Associates v. Caleb
    Baird & a., the court on June 23, 2016, issued the following
    order:
    Having considered the brief, the memorandum of law, and the record
    submitted on appeal, we conclude that oral argument is unnecessary in this
    case. See Sup. Ct. R. 18(1). We affirm.
    The defendants, Caleb Baird and Ann Walsh (tenants), appeal an order of
    the Circuit Court (Moore, J.) denying their motion for a hearing and to strike the
    default judgment against them in the possessory action brought by the plaintiff,
    Regent Park Associates (landlord). See RSA 540:13 (2007). We construe the
    tenants’ brief to argue that the trial court erred by not striking the default
    judgment against them or scheduling a hearing because: (1) they were denied
    due process under the Federal Constitution when the landlord brought a
    possessory action against them without providing them with demand or eviction
    notices, see RSA 540:13, I; (2) the landlord failed to comply with statutory
    requirements because it did not serve them with demand or eviction notices, see
    RSA 540:3, :4 (2007); and (3) the landlord filed its action when it knew that the
    tenants were out of the country and would not return until after the appearance
    deadline.
    We first address the tenants’ constitutional argument. The appellant has
    the burden to provide this court with a record sufficient to demonstrate that the
    issues on appeal have been raised before the trial court. Town of Atkinson v.
    Malborn Realty Trust, 
    164 N.H. 62
    , 69 (2012). 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. See N.H. Dep’t of Corrections v. Butland, 
    147 N.H. 676
    , 679 (2002). These rules are not relaxed for self-represented parties. See In
    the Matter of Birmingham & Birmingham, 
    154 N.H. 51
    , 56-57 (2006). In this
    case, the record establishes that the tenants did not raise a constitutional
    argument to the trial court. Accordingly, we decline to address it. See Malborn
    Realty, 
    164 N.H. at 69-70
    .
    We next address the tenants’ statutory argument. RSA 540:13, I
    authorizes a landlord to seek possession after the tenant has been notified, in
    writing, to quit. RSA 540:5, I (Supp. 2015) provides that a demand for rent or an
    eviction notice may be served by delivery to the tenant’s abode and that
    “[p]roof of service must be shown by a true and attested copy of the notice
    accompanied by an affidavit of service, but the affidavit need not be sworn under
    oath.” We will uphold the findings and rulings of the trial court unless they lack
    evidentiary support or are legally erroneous. Green v. Sumner Props., 
    152 N.H. 183
    , 184 (2005). 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. 
    Id.
    The tenants argue that the trial court “blindly accept[ed] the landlord’s
    argument that . . . [it] had delivered the documents properly” despite their
    statement that a “[n]otice to quit was never delivered.” However, the landlord
    provided the trial court with copies of eviction notices and demands for rent,
    together with affidavits that they had been served upon the tenants by leaving
    them at the tenants’ abode prior to their leaving on vacation. In contrast, the
    tenants did not support their assertion that they had not received such notices
    with an affidavit or otherwise.
    Furthermore, the tenants do not contest the landlord’s representation that
    their rent check was returned for insufficient funds a number of days before they
    left on vacation, that the property manager discussed the dishonored check with
    defendant Baird before they left, and that they failed to pay their rent before
    leaving and failed to pay the next month’s rent. Thus, we conclude that the trial
    court’s implicit finding that the tenants were provided proper notification to quit
    is supported by the record and not clearly erroneous. See 
    id.
    The tenants do not cite, nor are we aware of, any authority that the
    landlord was required to wait for their return from vacation to file its possessory
    action. Although the tenants argue that the landlord acted in bad faith by
    waiting to file the possessory action until it knew they were out of the country,
    the record does not support that they made this argument to the trial court.
    Accordingly, we decline to address it. See Malborn Realty, 
    164 N.H. at 69-70
    .
    Affirmed.
    Dalianis, C.J., and Hicks, Conboy, and Bassett, JJ., concurred.
    Eileen Fox,
    Clerk
    2
    

Document Info

Docket Number: 2015-0668

Filed Date: 6/23/2016

Precedential Status: Non-Precedential

Modified Date: 11/12/2024