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Lane v. Barletta

Supreme Court of New Hampshire

November 22, 2019

JACQUELINE LANE
v.
ANTONIO BARLETTA

          Argued: September 18, 2019

          6th Circuit Court-Hillsborough District Division No. 2018-0141

          Law Office of Kyle McDonald Esq., P.L.L.C., of Concord (Kyle McDonald on the brief and orally), for the plaintiff.

          Courteous Law, PC, of Henniker (Deb Bess Urbaitis on the brief and orally), for the defendant.

          HICKS, J.

         The defendant, Antonio Barletta, appeals an order of the Circuit Court (Tenney, J.) awarding the plaintiff, Jacquelyn Lane, $66, 000 in damages for the defendant's willful interruption of the plaintiff's heat utility service in violation of RSA 540-A:3, I (2007), for a period of thirty-three days. The plaintiff cross-appeals the trial court's denial of her motion for reconsideration.

         On appeal the defendant argues that the trial court erred in finding that he caused a "willful interruption" of the plaintiff's heating service in violation of RSA 540-A:3, I. Alternatively, he argues that even if he did violate RSA 540-A:3, I, the trial court erred in awarding enhanced damages pursuant to RSA 540-A:4, IX(a) (Supp. 2018) and RSA 358-A:10, I (2009). Finally, the plaintiff cross-appeals the trial court's denial of her motion for reconsideration as untimely. We vacate the order of the trial court and remand for further proceedings.

         The record supports the following facts. The plaintiff moved into an apartment in Henniker that she rented from the defendant at the end of August 2016. A short time thereafter the plaintiff and her grandfather noticed that the heating system maintained a pilot light but did not produce heat. The plaintiff notified the defendant of the problem via text message on September 26, 2016, and was told to call the maintenance person for the property. When the maintenance person arrived, he turned on the heating system and observed the pilot light, and instructed the plaintiff to leave the system on for a while. He told the plaintiff that if she did not begin to feel any heat to contact the defendant.

         The heating problems persisted, and when the plaintiff so informed the defendant, he told her that he would send over a space heater and repair or replace the heating system. The plaintiff received the space heater in November 2016, and, in December, she informed the defendant that the space heater "[wa]sn't cutting it." However, the space heater remained her only source of heat. In August 2017, the plaintiff called the Henniker health inspector hoping that a letter from that office might prompt the defendant to take action. Nevertheless, the heating system was not repaired.

         On November 3, 2017, the plaintiff filed a petition for a temporary order and a hearing pursuant to RSA chapter 540-A. That same day, the trial court issued a temporary order requiring the defendant to immediately restore heat to the plaintiff's apartment and scheduled a hearing for December 1, 2017. On the day of the hearing, the heating system still had not been fixed and the space heater remained the plaintiff's only source of heat. By that time, the defendant had arranged for a representative from AGS Services, Inc. to inspect the heating system and confirm that there was no propane in the tank. At the hearing, the defendant testified that he "didn't find [the plaintiff's] complaint relevant because [he] knew that the unit worked." His position was that the heating system had always worked and that it merely lacked propane, which the plaintiff was responsible for supplying. Although the defendant recognized that the ignition of the pilot light suggested the presence of propane, his basis for making the assertion was that another tenant, who had occupied the apartment prior to the plaintiff, never notified him that the heat was not working. Because neither party presented any evidence as to whether the heating system was in working order and would heat the apartment if there were propane in the tank, the trial court continued the hearing so that evidence bearing on that central issue could be presented.

         The defendant had the heating system's propane tank filled on December 6, 2017, in anticipation of technicians coming to inspect the system. Subsequently, the plaintiff and defendant each had a separate technician inspect the heating system. The plaintiff hired a technician from Space Kraft LLC to inspect the system on December 20. Her technician concluded that he could not test for heat because the gas line was not up to code, and that the unit should be replaced because of its age. The defendant hired a technician from AGS Services, Inc. to inspect the system on December 21. His technician was not able to turn the heating system on and ultimately concluded that the unit was in need of repair. The plaintiff moved out of the apartment on January 1, 2018, while the heating system was still inoperable.

         In the trial court's final order, notice of which went out on February 22, the court found that the defendant violated RSA 540-A:3, I, for a period of thirty-three days, beginning when the temporary order was issued on November 3, 2017, and ending on December 6, 2017. Further, the trial court found that, because the defendant violated RSA 540-A:3, I, the plaintiff was entitled, at a minimum, to double damages under RSA 540-A:4, IX(a) and RSA 358-A:10, I. Assessing the damages at $1, 000 per day and then doubling those damages, the court awarded damages of $2, 000 per day for thirty-three days, for a total damages award of $66, 000. On March 5, 2018, the plaintiff filed a motion asking the court to reconsider the date upon which it stopped calculating damages. The court denied the plaintiff's motion as untimely under District Division Rule 5.10, [1] which requires post-trial motions to be filed within seven days after the date of the clerk's notice of judgment. This appeal followed.

         In reviewing the questions presented by this appeal, we will not disturb the findings of the trial court unless they lack evidentiary support or are erroneous as a matter of law. Randall v. Abounaja, 164 N.H. 506, 508 (2013); see RSA 540-A:4, V (2007). Our inquiry is to determine whether the evidence presented to the trial court reasonably supports its findings, and then whether the court's decision is consonant with applicable law. Randall, 164 N.H. at 508. Finally, we review questions of law de novo. Id.

         First, we address whether the defendant "willfully interrupted" the plaintiff's heating service in violation of RSA 540-A:3, I. That statute provides, in pertinent part, that "[n]o landlord shall willfully cause, directly or indirectly, the interruption or termination of any utility service being supplied to the tenant including, but not limited to . . . heat . . ., ...


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