Appeal by defendant from judgment entered 19 April 2005 by
Judge Thomas G. Taylor in Gaston County District Court. Heard in
the Court of Appeals 21 August 2006.
No brief for plaintiff-appellee.
Robinson, Bradshaw & Hinson, P.A., by Julian H. Wright, Jr.;
Legal Aid of North Carolina, Inc., by Sharon S. Dove, for
defendant-appellants.
HUNTER, Judge.
Sharanza Kelly (“appellant”) appeals on behalf of herself and
her family from a judgment entered 19 April 2005. For the reasons
stated herein, we reverse this order.
The trial court made findings that appellant, her husband,
Franklin Kelly (“Franklin”), and their two children entered into a
lease for an apartment at Lincoln Terrace Apartments on 21 October
2003. The apartment rent was subsidized by the United States
Department of Housing and Urban Development (“HUD”), requiring
compliance with applicable federal rules and regulations related to
the program. In October of 2004, Franklin damaged the unit in which
appellant and Franklin lived by kicking in the door. The door was
repaired shortly thereafter by appellee. No charges were billed to
appellant and Franklin at the time the repair was completed.
On 21 December 2004, a verbal altercation occurred in the
common area of the Lincoln Terrace Apartments between Franklin and
other tenants. The manager of the Lincoln Terrace Apartments,
Barbara White (“White”), summoned police. The police directed
residents and guests to return to their residences. Approximately
twenty minutes later, after the police had left, White testified
she saw a fist fight between Franklin and another resident, Adam
Randolph, in the parking lot. White testified that she saw both
men swinging at one another, but did not see how the altercation
began. The trial court found that on 27 December 2004, appellant
was served with a HUD Notice of Infraction regarding the fight on
21 December 2004, and that on 28 December 2004, appellant was
served with a Notice of Termination.
On 28 January 2005, appellee filed a complaint in summary
ejectment against appellant and the occupants of her apartment,
alleging as lease infractions that members of the household had
disturbed and harrased other tenants, had assaulted other tenants,
and had damaged property by kicking in the front door.
A trial was conducted before the magistrate on 22 February
2005 and judgment was awarded to appellee. Appellant appealed to
district court and both parties waived their right to a jury trial. The trial court awarded judgment in appellee's favor and damages of
$144.58 and the cost of the appeal. Appellant appeals.
I.
Appellant contends the trial court erred in awarding appellee
judgment when appellee failed to show that appellant was properly
served with a termination notice which strictly complied with the
lease agreement. As we find no evidence to support the trial
court's finding after careful review of the record, we agree.
“[A] trial court's findings of fact in a bench trial have the
force of a jury verdict and are conclusive on appeal if there is
competent evidence to support them, even though there may be
evidence that would support findings to the contrary.”
Biemann &
Rowell Co. v. Donohoe Cos., 147 N.C. App. 239, 242, 556 S.E.2d 1,
4 (2001). “However, conclusions of law reached by the trial court
are reviewable de novo.”
Id.
In order to evict a tenant in North
Carolina, a landlord must prove: (1) That it
distinctly reserved in the lease a right to
declare a forfeiture for the alleged act or
event; (2) that there is clear proof of the
happening of an act or event for which the
landlord reserved the right to declare a
forfeiture; (3) that the landlord promptly
exercised its right to declare a forfeiture,
and (4) that the result of enforcing the
forfeiture is not unconscionable.
Charlotte Housing Authority v. Fleming, 123 N.C. App. 511, 513, 473
S.E.2d 373, 375 (1996). “Our courts do not look with favor on
lease forfeitures.”
Stanley v. Harvey, 90 N.C. App. 535, 539, 369
S.E.2d 382, 385 (1988). “When termination of a lease depends upon
notice, the notice must be given in strict compliance with thecontract as to both time and contents.”
Id. (holding that when
notice to vacate was insufficient to comply with the terms of the
lease, lease was not properly terminated before commencement of
summary ejectment action).
Here, the relevant portion of the governing lease, Paragraph
23, Termination of Tenancy, states that:
e. If the Landlord proposes to terminate
this Agreement, the Landlord agrees to
give the Tenant written notice and the
grounds for the proposed
termination. . . . Notices of proposed
termination for other reasons must be
given in accordance with any time frames
set forth in State and local law. Any
HUD-required notice period may run
concurrently with any notice period
required by State or local law. All
termination notices must:
1 *
specify the date this Agreement will be
terminated;
2 *
state the grounds for termination with
enough detail for the tenant to prepare a
defense;
3 *
advise the Tenant that he/she has 10 days
within which to discuss the proposed
termination of tenancy with the Landlord.
The 10-day period will begin on the
earlier of the date the notice was hand-
delivered to the unit or the day after
the date the notice is mailed. If the
Tenant requests the meeting, the Landlord
agrees to discuss the proposed
termination with the Tenant; and
4 *
advise the Tenant of his/her right to
defend the action in court.
f. If an eviction is initiated, the Landlord
agrees to rely only upon those grounds
cited in the termination notice required
by paragraph e.
A review of the record shows that no Notice of Termination was
entered into evidence. In closing arguments during the bench
trial, appellee's counsel stated:
My client testified on the notice of
termination, in fact, she testified on cross,
[appellant] asked her, and she testified that
she had served them with notice of termination
because it's a four or five-page document, the
last page of which had the bill for the
damages.
In [appellant]'s closing she stated and
she was arguing about the waiver on the door,
she said on December 28th after the notice of
termination had been served on the 27th. So,
it's very clear that notice of termination was
served. My client testified to it. We did
not introduce it, but we did in fact testify
to it which is sufficient.
A review of the trial transcript reveals that the sole
evidence presented to the trial court regarding the Notice of
Termination was in the form of testimony by White. On direct
examination, White did not testify regarding a notice on
termination or eviction. On cross-examination, White testified
that she sent out a Notice of Termination to appellant on 27
December 2004. (T.p.72) White stated that the Notice of Termination
did not include the damage to the door, but did include the
incident on 21 December 2004. When asked if she was reading the
Notice of Termination, White responded that she was. The following
exchange then occurred:
BY THE COURT:
We have it as an exhibit if you would
like [to] show it to her so that --
BY [APPELLANT]:
That would be good.
BY THE COURT:
I believe it's exhibit number --
BY [APPELLEE]:
The notice of infraction?
BY THE COURT:
Two, notice of infraction, is that what
you're talking about?
BY [APPELLANT]:
That was not what I was talking about.
BY THE COURT:
Oh, okay. All right. Then if you have
something you want to show her so that
we're on the same page.
BY [APPELLANT]:
Q Ms. White, if you could look through your
materials and find the notice of
termination or, no, I guess it's called
notice of eviction.
A Are you talking about the notice that
advises them the tenancy will be
terminated?
Q That's correct.
A I have it in my hand, ma'am.
Q If I can take a look at it. May I
approach, your Honor?
BY THE COURT:
Yes.
BY [APPELLANT]:
Ms. White, I think, if you could take a
look at that, that notice that you've got
in front of you, that December 27th, '04notice. That does not say anything about
a door, does it?
A No, it does not.
Q Doesn't say anything about damages to a
door either, does it?
A No, it does not.
Q Okay. And you sent out a notice of
eviction on the same date, on December
27th, '04, correct? Titled “Eviction
Notice” at the top.
A Are you talking about the company
eviction notice?
Q I believe it's the company eviction
notice.
A Yes, ma'am.
Q Okay. And that eviction notice does not
say anything about the door, correct?
A No, it does not.
No further questions were asked regarding the Notice of Termination
or eviction on cross-examination. On re-direct, appellee
questioned White regarding the Notice of Termination as follows:
Q [Appellant] asked you about the notice of
termination that you sent?
A Yes.
Q Eviction notice and she also asked you
about the notice of termination. Do you
remember that?
A Yes, I do.
Q Now, you have your copies with you?
A Yes, I do.
Q Looking at the last page of the December
27
th documents, it's about the date
December 28
th, 2004. Do you see them? Let me approach and show you what I'm _
and we can move along more quickly. I'm
showing you _ just refresh your memory
and state what that document is.
A Okay. I know what that is.
Q Okay. Did Ms. Kelly get a copy _ sign
saying that she had gotten a copy of the
eviction letter on 12/27 for five pages
of the thirty-day notice?
A Yes.
Q Did she also sign challenging the four
infractions, four, five, six and seven?
A Yes, she did.
Q Did she also sign acknowledging the
charges, the account charges, for the
damages?
A Yes, she did.
No further questions regarding the Notice of Termination or
eviction were asked by either party. Based on White's testimony,
the trial court made findings that:
18. On December 28, 2004 the plaintiff served
the defendants with a HUD Notice of
Termination.
19. The defendants signed a form
acknowledging receipt of the Notice of
Termination which included the reasons
for the termination, the fight, and the
damages for the door cited below.
. . .
36. The plaintiff complied with all State and
HUD requirements pertaining to notice,
termination and procedure in filing the
action in summary ejectment.
As set out supra, White testified that the Notice of
Termination was sent out on 27 December 2004 and that appellantsigned for the notice. White further stated the Notice of
Termination mentioned the fighting incident on 21 December 2004,
but did not include as one of the grounds for termination the
damages to the door. White did not testify as to any further
contents of the Notice of Termination.
No further evidence was offered as to the Notice of
Termination. The only document submitted into evidence dated 27
December 2004 was the Notice of Infraction, which did not fully
comply with the lease requirements for termination of the lease
agreement. No evidence was offered to show that Notice of
Termination specified the date the agreement would be terminated,
or included an advisement that the tenant had ten days to discuss
the proposed termination with the landlord and the right to defend
the action in court, as specifically required by both the terms of
the lease and the applicable HUD regulations. Further, White's
testimony established that one of the grounds listed in the
complaint for summary ejectment, the destruction of the door, was
not included in the Notice of Termination, depriving appellant of
notice to prepare a defense as to that ground.
Competent evidence does not support the trial court's finding
of fact 19 that the Notice of Termination included damage to the
door as a reason for the termination. Competent evidence also does
not support finding of fact 36 that appellee complied with all
State and HUD requirements pertaining to notice and termination.
We therefore find the trial court erred in these findings. Appellant specifically raised the issue to the trial court
that appellee failed to provide proof that proper Notice of
Termination in compliance with the requirements of the lease was
given. Although sufficient evidence was offered to support the
trial court's findings and conclusions as to one of the grounds for
summary ejectment of which appellant had proper notice, criminal
activity, the record is devoid of evidence to support findings that
appellant was provided with notice of the other lease requirements
for termination of the agreement. As the findings of fact do not
support the conclusion that appellee properly complied with the
requirements of the notice provision of the parties' lease
agreement, we find the trial court erred in granting summary
ejectment against appellant, as appellee failed to show that the
termination notice strictly complied with the terms of the lease.
Stanley, 90 N.C. App. at 539, 369 S.E.2d at 385. We reverse the
judgment and do not reach appellant's remaining assignments of
error.
As the evidence of record does not support the trial court's
findings as to proper Notice of Termination, the trial court's
grant of summary ejectment is reversed.
Reversed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
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