NH Supremes: Tenant To Pocket $1K Plus Add'l $1K/Day For Each Day Landlord Willfully Failed To Provide Heat After TRO Issuance; State Statute Also Sticks Landlord With Tab For Renter's Legal Fees
- Respondent [landlord] Nahla Abounaja appealed a district court order that awarded petitioner [tenant] Myla Randall, $18,000 in damages because of the [landlord]'s willful failure to provide heat to the [tenant]'s apartment for eighteen days. [Tenant] rented an apartment from the [landlord] in Rochester. At some point before March 23, 2011, [tenant] complained to the city's plumbing and health inspector that her apartment lacked heat.
An inspector came to the premises and discovered that there was no heat in the [tenant]'s master bedroom because neither the radiator nor the electric heater worked. The inspector called [landlord] about this issue and met with her two days later.
The inspector then sent a letter to the [landlord] about this problem, giving her fourteen days to remedy it. The [landlord] did not respond to the letter, nor did she return the inspector's subsequent telephone calls.
[Tenant] then filed suit on April 12, and the trial court issued a temporary order requiring [landlord] "to immediately restore and maintain all utility services" to the [tenant]'s apartment. Following the hearing on the petition, the trial court found that the [landlord] was aware that the heating units did not work and that she failed to have them repaired until April 18, and that her actions were willful.
In her brief, [landlord] argued that her conduct was not "wil[l]ful" because she did not cause the petitioner's apartment to lack heat in the first instance. She argued that, at most, she merely "allow[ed]" the heating service to be interrupted; she did not "cause" the interruption itself. Her merely "negligent omission" did not constitute a willful act.
Based upon the evidence at trial, the [New Hampshire] Supreme Court concluded the trial court reasonably found that the [landlord]'s failure to have the units repaired was intentional, and, therefore, willful.
However, because the trial court committed plain error when it awarded the [tenant] $1,000 per day for at least some days that the [landlord]'s violation of RSA 540-A:3, I, the Court vacated $17,000 of the damage award and remanded the case for further proceedings.
On remand, the trial court was tasked with determining whether [landlord] willfully violated RSA 540-A:3, I after April 12, and, if so, the court was instructed to award [tenant] $1,000 per day for each day that the [landlord]'s violation continued.(1)
For the ruling, see Randall v. Abounaja, No. 2011-456 (N.H. January 11, 2013).
(1) According to the court:
- Under the version of RSA 540-A:4, IX(a) in effect when the events giving rise to this appeal occurred, a violation of RSA 540-A:3, I, entitled the petitioner to "the civil remedies set forth in RSA 358-A:10 for the initial violation, including costs and reasonable attorney's fees incurred in the proceedings." RSA 540-A:4, IX(a) (Supp. 2012).
RSA 358-A:10 (2009) provides for recovery "in the amount of actual damages or $1,000, whichever is greater." Because we have upheld the trial court's finding that the petitioner willfully violated RSA 540-A:3, I, we also uphold its determination that the petitioner was entitled to damages of $1,000 for that initial violation.
RSA 540-A:4, IX(a) also entitled the petitioner to damages for "[e]ach day" that the respondent's violation continued "after issuance of a temporary order." RSA 540-A:4, IX(a) (emphasis added); see Wass, 158 N.H. at 283. The temporary order in this case was issued on April 12, 2011.