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Mark Case v. St. Mary's Bank

February 25, 2013


The opinion of the court was delivered by: Conboy, J.

Argued: January 16, 2013

The plaintiff, Mark Case, appeals from an order of the Superior Court (Garfunkel, J.) granting summary judgment to the defendant, St. Mary's Bank (the Bank), and denying his cross-motion for summary judgment on his claims that the Bank engaged in trespass and violated RSA 540-A:2 (2007), :3 (Supp. 2012), and the New Hampshire Consumer Protection Act (CPA), see RSA ch. 358-A (2009). We affirm.

I. Facts and Procedural History

The following facts are drawn from the record. The plaintiff rented a third floor apartment in Manchester from Jean M. Marcelin. Marcelin purchased the property in 2007 and financed his purchase with two mortgages from the Bank.

In December 2010, the Bank conducted a foreclosure sale with respect to one of the mortgages. Before the foreclosure sale closed, Marcelin filed for bankruptcy, which stayed any further action. On January 26, 2011, the stay was lifted, and another foreclosure sale was scheduled for April 2011.

On January 25, more than two months before the rescheduled foreclosure sale, a pipe from the second floor apartment burst, causing a flood in the building, and, as a result, the City of Manchester (City) turned off water and electricity to the building. The plaintiff spoke about the problem to Marcelin, who denied that he still owned the property. The plaintiff then spoke about the problem to a Bank representative, and, on January 27, the representative asked the plaintiff to allow her, a plumber, and an electrician into the building. The plaintiff complied with this request. On February 7, the City placed a legal notice on the property's front door, stating that it was unsafe and prohibiting occupancy.

On March 17, the Bank was notified by the City that the property was uninhabitable and that Marcelin had ignored the City's repeated requests to repair it. The City stated that because of the "total lack of maintenance and disrepair of the premises," it was revoking the "Certificate of Compliance" that it had previously issued for the property. The City directed that there could be "no re-occupancy of the dwelling units in [the property]" without the City's written permission. The City informed the Bank: "Failure to comply with this order will result in the issuance of ordinance violation citations and court action." That day, the Bank changed the locks to the outside doors and boarded up the building's entranceways. On April 13, the Bank conducted another foreclosure sale at which there was a successful third-party bidder.

The plaintiff has not resided at the property since January 25, 2011. Although he leased another apartment on February 19, most of his possessions remained at the property. On April 21, when the Bank allowed him access to the apartment to remove his possessions, the plaintiff observed that his apartment door was "wide open" and subsequently alleged that many of his possessions were missing. The plaintiff did not remove all of his possessions from the apartment until May 7.

The plaintiff sued the Bank for violations of RSA 540-A:2 and :3 and the CPA, and for trespass. The parties filed cross-motions for summary judgment.

In granting the Bank's motion and denying the plaintiff's motion, the trial court ruled that: (1) the Bank is not liable under RSA 540-A:2 or :3 because it is not a "landlord" as defined in RSA 540-A:1, I (2007); (2) the Bank did not "trespass" because its entry on the property was privileged; and (3) the Bank is not liable to the plaintiff under the CPA because it never engaged in "trade or commerce" with him. The plaintiff unsuccessfully moved for reconsideration, and this appeal followed. On appeal, the plaintiff challenges only the first two of the trial court's rulings -- he has abandoned his CPA claim.

II. Discussion

"We review de novo the trial court's application of the law to the facts in its summary judgment ruling." Concord Gen. Mut. Ins. Co. v. Green & Co. Bldg. & Dev. Corp., 160 N.H. 690, 692 (2010) (quotation omitted). "All evidence presented in the record, as well as any inferences reasonably drawn therefrom, must be considered in the light most favorable to the party opposing summary judgment." Id. (quotation omitted). "If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment." Id. (quotation omitted).

A. RSA Chapter 540-A Claims

The plaintiff first argues that the trial court erred when it decided that the Bank was not a "landlord" within the meaning of RSA chapter 540-A. Resolving this issue requires that we interpret the pertinent statutory provisions. We review the trial court's statutory interpretation de novo. Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 67 (2012). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might ...

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