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Bar News - June 17, 2005 Eviction Actions and the New Appeals Policy: Grounds for Incompatibility By: Fred K. Mayer About 18 months ago, the appellate process in New Hampshire underwent a dramatic transformation.Current rules provide for appellate review of the final decision on the merits issued by any superior court, district court, probate court or family division court. Appeals from such decisions are now classified as "mandatory appeals" (see Supreme Court Rule 3) and acceptance of such appeals is automatic. From the perspective of a lawyer, the new appellate process is easy to embrace. After all, how do you quibble with the notion that all litigants have a right to appellate review? In law school, we learned to view the right to appellate review as fundamental, as an essential component of due process. From the perspective of a landlord, however, the process is much tougher to defend. As an attorney who spends most of his time representing landlords, I have encountered many landlords who are frustrated by the process. To understand their frustration, it is necessary to consider the impact of the new appellate rules on the eviction process. Eviction actions are brought to recover possession. It is possible to make a claim for up to $1,500.00 in back rent when bringing a Landlord and Tenant action, but for tactical reasons this is not a good idea. Seeking both possession and back rent in the same action opens the door for counterclaims (see RSA 540:13,III). Consequently, lawyers who file a lot of eviction actions tend to limit their Landlord and Tenant Writs to claims for possession alone. Because eviction actions are all about possession, the mere duration of the appellate process is of tremendous significance. If a tenant appeals an adverse judgment, he remains in possession of the rental unit until the appeal has been resolved. Assuming that the tenant follows proper procedure, the appeal might take six months to a year (depending on a wide variety of variables, such as whether the tenant orders a transcript of the trial court’s decision). The appellate process thus enables the tenant to control possession of the rental unit for an additional six months to a year after losing in district court. Bear in mind that many residential leases are for one year or less and you begin to comprehend why landlords might find the new process frustrating. Under the old rules, most appeals of landlord and tenant matters were simply declined, a process that might take six to eight weeks. When I explain to my landlord clients that an appeal under the current process might take six to eight months, they are taken aback. The problem is compounded by the lack of any mechanism for weeding out meritless appeals prior to the submission of briefs. Under the old rules, it was possible to file a motion for summary affirmance. However, in its current form, Supreme Court Rule 25(1) precludes the filing of such motions in a "mandatory appeal." Motions to dismiss are permitted, but only for "lack of subject matter jurisdiction, mootness, untimeliness, or other cause unrelated to the merits of the appeal." Rule 25(7) (emphasis added). Consequently, even an appeal that has no merit enables a tenant to retain control of the rental unit until after the submission of briefs. Landlords ask me, "How can the tenant appeal if he has no grounds?" I have not come up with a satisfactory answer to that question. Instead, I have offered the Supreme Court Advisory Committee on Rules a suggested approach to remedying this situation. I suggest revising Supreme Court Rule 25 to permit Motions for Summary Affirmance in possessory actions. Truth to tell, my landlord clients would prefer to be excluded from the "mandatory appeal" process altogether. Fred K. Mayer, of Mayer Law Offices in Nashua, testified before the Supreme Court Advisory Committee on Rules. |
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