Horton v. Clemens

173 N.H. 480

242 A.3d 1200

Richard HORTON & a.

v.David CLEMENS & a.

No. 2019-0476

Supreme Court of New Hampshire.

Submitted: May 13, 2020

Opinion Issued: August 11, 2020

Plymouth Law Center, of Plymouth (Gabriel Nizetic on the brief), for the plaintiffs.

David Clemens and April Hanks, self-represented parties, filed no brief.

New Hampshire Legal Assistance (Stephen Tower on the brief), as amicus curiae.

HICKS, J.

The plaintiffs, Richard and Janice Horton (landlords), appeal an order of the Circuit Court (Mace, J.) dismissing their petition to evict the defendants, David Clemens and April Hanks (tenants), for nonpayment of rent on the ground that the eviction notice failed to comply with RSA 540:5, II because it did not contain the same information as is provided on the judicial branch form eviction notice. See RSA 540:5, II (2007). We affirm.

The record reveals the following facts. The landlords initiated this possessory action by serving the tenants on June 4, 2019, with a demand for rent owed for June and a notice of eviction. The eviction notice informed them that they had until June 12 to vacate the premises, stated specifically that they were being evicted for "failure to pay rent due," and informed the tenants of their right to avoid eviction by paying "all the arrearages plus fifteen dollars ($15.00) as liquidated damages, in accordance with RSA 540:9." However, the eviction notice did not include the following information, which appears in the judicial branch form eviction notice:

NOTE : This notice is not a court order requiring you to vacate the rental property. However, if you remain on the premises after the expiration of this notice, your landlord may continue with New Hampshire's lawful eviction process: That process would result in you being served by a sheriff with a summons called a Landlord and Tenant Writ. If served with a Landlord and Tenant Writ, you will have the right to dispute the reason(s) for the eviction at a hearing before a judge. To do that, you will have to file a document called an Appearance with the court where the eviction case is filed, no later than the "return date" listed on the Writ.

Thereafter, the landlords filed a landlord-tenant writ seeking possession of the premises, which informed the tenants, among other things that: (1) to contest the eviction, they had to file an appearance no later than the return date on the writ (June 26); and (2) they could not be evicted unless the court so ordered. The tenants subsequently moved to dismiss the eviction proceeding on the ground that the failure to include in the eviction notice the same information that is provided on the judicial branch form rendered the notice fatally defective and required dismissal of the action. The landlords objected.

The trial court held a hearing on June 27, at which it heard argument about the motion to dismiss and offers of proof about the merits of the proceeding. Hanks testified that she and Clemens were served with the eviction notice on June 4, 2019. Thereafter, the court granted the motion to dismiss. This appeal followed.

On appeal, the landlords argue that the trial court erred by dismissing their action because the eviction notice need not have included the same information as is in the quoted paragraph from the judicial branch form. According to the landlords, the information in the quoted paragraph "is outside the scope of any language necessitated by law and beyond the scope of the Circuit Court's authority to create forms that comply with existing law." The landlords assert that the quoted paragraph "essentially functions to provide tenants with unsolicited legal advice," and "disrupts the careful statutory balance and the self-help provisions of RSA [chapter] 540 by informing the tenants that they are under no obligation to vacate the premises." Alternatively, the landlords contend that even if the information from the quoted paragraph is required, dismissal of the eviction proceeding is not the proper remedy for their failure to include it in the eviction notice.

Resolving the issues in this appeal requires that we engage in statutory interpretation. We review the trial court's statutory interpretation de novo. Darbouze v. Champney, 160 N.H. 695, 697, 8 A.3d 105 (2010). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of the statute is clear on its face, its meaning is not subject to modification. Id. We will neither consider what the legislature might have said nor add words that it did not see fit to include. Id.

RSA chapter 540 authorizes summary possessory actions to simplify and facilitate the landlord's recovery of possession of the premises. So. Willow Properties v. Burlington Coat Factory of N.H., 159 N.H. 494, 498, 986 A.2d 506 (2009). The purpose of such actions "is to permit the landlord to recover possession on termination of a lease without suffering the delay, loss and expense to which he may be subjected under a common-law action." Id. (quotation omitted). "The process is intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession." Matte v. Shippee Auto, 152 N.H. 216, 218, 876 A.2d 167 (2005) (quotation omitted). "Because RSA chapter 540 establishes rights and benefits which a landlord did not enjoy at common law, strict compliance with its terms is required." So. Willow Properties, 159 N.H. at 498, 986 A.2d 506 (quotation and brackets omitted).

RSA 540:2, II(a) authorizes a landlord to terminate a tenancy for nonpayment of rent "by giving to the tenant or occupant a notice in writing to quit the premises in accordance with RSA 540:3 and 5." RSA 540:2, II(a) (2007). When terminating a tenancy for this reason, the landlord must give the tenant seven days’ notice. RSA 540:3, II (2007). In addition, the eviction notice must "state with specificity the reason for the eviction," and must "inform the tenant of his or her right, if any, to avoid the eviction by payment of the arrearages and liquidated damages in accordance with RSA 540:9." RSA 540:3, III, IV (2007); see RSA 540:9 (2007). RSA 540:5, II requires the circuit court to "provide forms for a demand for rent and eviction notice." It further provides: "Although a landlord shall not be required to use the forms, a valid demand for rent or eviction notice shall include the same information as is requested and provided on such forms." RSA 540:5, II. Importantly, although RSA 540:5, II does not specify the information to be "requested and provided" on the judicial branch forms, RSA 490:26-d authorizes the judicial branch to create judicial forms that are "necessary for the effective administration of justice." RSA 490:26-d (2010).

The landlords first argue that, pursuant to this statutory scheme, they are not required to include on their eviction notice the same information as is provided in the quoted paragraph from the judicial branch form eviction notice. Rather, they assert, notice of eviction for nonpayment of rent is legally sufficient as long as it complies with RSA 540:3 by: (1) giving the tenant seven days’ notice; (2) specifying the reason for the eviction; and (3) informing the tenant of the right to avoid eviction by paying the arrearage and liquidated damages as provided in RSA 540:9. Their eviction notice, they contend, is legally sufficient because it satisfied the three requirements of RSA 540:3.

To support their argument, the landlords rely upon Darbouze. Darbouze is instructive, but contrary to the landlords’ assertions, is not dispositive. In that case, the tenant argued that the eviction notice was defective because it was entitled "Notice to Quit." Darbouze, 160 N.H. at 698, 8 A.3d 105 (quotation omitted). In rejecting this argument, we observed that "while the better practice would be the use of the term ‘eviction notice,’ we find no statutory prohibition against the use of the term ‘notice to quit,’ as long as the substance of the notice satisfies the three ... requirements" enumerated in RSA 540:3. Id.

The landlords rely upon this language to argue that the content of an eviction notice need only comply with RSA 540:3 to be legally sufficient. However, in Darbouze, although the title of the eviction notice might have differed from that of the judicial branch form, the substance of the two was the same. See id. at 698-99, 8 A.3d 105. Accordingly, in Darbouze, we were not faced with the question confronting us today: whether an eviction notice that does not contain the same information as the judicial branch form, nonetheless, is legally sufficient because it contains the information required by RSA 540:3.

The plain language of RSA 540:5, II does not support the landlords’ argument. Although RSA 540:5, II does not require a landlord to use the judicial branch forms, the statute expressly provides that "a valid demand for rent or eviction notice shall include the same information as is requested and provided on such forms." RSA 540:5, II. The use of the word "shall" evidences that this is a mandatory requirement.

Appeal of Coos County Comm'rs, 166 N.H. 379, 386, 97 A.3d 654 (2014) ("The general rule of statutory construction is that the word ‘may’ makes enforcement of a statute permissive and that the word ‘shall’ requires mandatory enforcement." (quotation omitted)). Had the legislature intended the eviction notice to be legally sufficient provided that it meets the requirements of RSA 540:3, the legislature could have said so. To the extent that there is any conflict between RSA 540:3 and RSA 540:5, II, RSA 540:5, II controls because both statutes are equally specific as to eviction notices and RSA 540:5, II is the later-enacted statute. Cf. Petition of Public Serv. Co. of N.H., 130 N.H. 265, 283, 539 A.2d 263 (1988) (noting...