HOUSING AUTHORITY OF CITY OF DURHAM v. Thorpe , 271 N.C. 468 ( 1967 )

157 S.E.2d 147 (1967) 271 N.C. 468

HOUSING AUTHORITY OF the CITY OF DURHAM
v.
Joyce C. THORPE.

No. 765.

Supreme Court of North Carolina.

October 11, 1967.

M. C. Burt, Jr., Durham, and Jack Greenberg, James M. Nabrit, III, Michael Meltsner, Charles H. Jones, Jr., & Charles Stephen Ralston and Brian Glick, New York City, for defendant appellant.

Daniel K. Edwards, Durham, for plaintiff appellee.

HIGGINS, Justice:

The plaintiff, a North Carolina corporation with federal assistance, built, owned, maintained, and managed the McDougald Terrace, a low-rent public housing project in the City of Durham. On November 11, 1964 the Housing Authority, as owner, and Joyce C. Thorpe, as tenant, entered in a written agreement whereby the Authority leased to Mrs. Thorpe Apartment No. 38-G for a term of 30 days. The agreement provided: "* * * This lease may be terminated by the Tenant by giving to Management notice in writing of such termination 15 days prior to the last day of the term. The Management may terminate this lease by giving to the Tenant notice in writing of such termination fifteen (15) days prior to the last day of the term. * * *" Each party had equal right to terminate the lease. The limitations as to time or terms were lawful. Chicago Housing Authority v. Blackman, 4 Ill. 2d 319, 122 N.E.2d 522; Housing Authority of City of Los Angeles v. Cordova, 130 Cal. App. Supp. 2d 883, 279 P.2d 215, cert. denied, 350 U.S. 969, 76 S. Ct. 440, 100 L. Ed. 841; Lawson v. Housing Authority of City of Milwaukee, 270 Wis. 269, 70 N.W.2d 605.

On August 11, 1965 the Housing Authority gave the tenant notice it was terminating the lease and gave direction that she vacate the apartment. On August 20, and again on September 1, the tenant requested a hearing. The Manager of the Authority conferred with tenant's counsel but did not give the tenant a hearing nor disclose any reason for refusing to extend the lease.

After the term expired and the tenant refused to vacate, the Authority instituted ejectment proceedings. The tenant testified that the day before the notice to terminate was served, she was elected President of the Parents' Club, an organization for tenants living in the project. She testified, in her opinion, she was being ejected because of her club activities. In support of her belief, she offered nothing except the timing between her election and the service of the notice. She neither offered evidence of the purposes of the club nor any reason why the Authority should object to it. The Manager testified at the hearing before the Justice, and, by affidavit, before the Superior Court that the tenant's activities in connection with the club played no part whatever in the decision of the Authority not to renew the lease.

After hearing, the Justice of the Peace entered judgment of eviction. Mrs. Thorpe appealed to the Superior Court. The parties waived a jury trial and consented that Judge Bickett hear the evidence, find the facts, and render judgment without the intervention of a jury. Judge Bickett found the Authority had terminated the lease in the manner provided by the agreement of the parties and that the tenant's activities in the Parents' Club played no part in the decision of the Authority not to renew the lease. The timing of the club election and the service of the ejection notice might arouse suspicion if the activities of the club were shown to have been hostile to the Authority. Without such showing and in the face of positive testimony of the Manager to the contrary, the charge is based altogether on coincidence. The timing may arouse suspicion, but to the judicial mind, suspicion is never a proper substitute for evidence. From Judge Bickett's findings against her, and his order that she surrender the premises, Mrs. Thorpe appealed. Pending our consideration of the appeal, we ordered a stay of execution.

On May 25, 1966 this Court, by opinion reported in 267 N.C. 431, 148 S.E.2d 290, found no error in the decision of the Superior Court. On December 5, 1966 the Supreme Court of the United States granted certiorari, 385 U.S. 967, 87 S. Ct. 515, 17 L. Ed. 2d 432, to review our decision. On February 7, 1967, the Department of Housing and Urban Development issued this directive to local housing authorities:

"Since this is a federally assisted program, we believe it is essential that no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish."

On April 9, 1967, 386 U.S. 670, 87 S. Ct. 1244, 18 L. Ed. 2d 394 the Supreme Court of the United States vacated our judgment and remanded the case to us "for such further proceedings as may be appropriate in the light of the February 7 Circular of the Department of Housing and Urban Development."

At the beginning of our reconsideration, we note that the circular was issued two years after the lease was executed; 17 months after the notice of termination was given; 16 months after the eviction order was entered in the Justice's court; 15 months after the eviction order was entered in the de novo hearing in the Superior Court; and 8 months after this Court found no error in the Superior Court judgment. The rights of the parties had matured and had been determined before the directive was issued. We quote from Greene v. United States, 376 U.S. 149, 84 S. Ct. 615, 11 L. Ed. 2d 576:

"The first rule of construction is that legislation [and directives] must be considered as addressed to the future, not the past. * * * (A) retrospective operation will not be given to a statute [or directive] which interferes with antecedent rights unless such be ``the unequivocal and inflexible import of its terms, and the manifest intention of the legislature. * * * (S)ince regulations of the type involved in this case are to be viewed as if they were statutes, this "first rule" of statutory construction appropriately applies. * * *'" See also Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377.

The North Carolina decisions are to the effect statutes are presumed to act prospectively only. Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836; Piedmont Memorial Hospital v. Guilford County, 221 N.C. 308, 20 S.E.2d 332; Hicks v. Kearney, 189 N.C. 316, 127 S.E. 205. The rules against retrospective construction have rigid application where the rights of the parties depend upon contract. Moody v. Transylvania County, N.C., 156 S.E.2d 716; Rostan v. Huggins, 216 N.C. 386, 5 S.E.2d 162. This rule is general in its application. 25 RCL 787; 20 Minn.L.Rev. 775.

As directed by the order of the Supreme Court (386 U.S. 670, 87 S. Ct. 1244, 18 L. Ed. 2d 394), we have reconsidered our former decision (267 N.C. 431, 148 S.E.2d 290) in the light of the February 7, 1967 DHUD directive. After review, we conclude that 15 days prior to the expiration date of the lease, the Housing Authority, without explanation, notified the tenant that her lease would not be renewed. That procedure followed the terms of the lease. Before the expiration date the defendant demanded a hearing. The Manager of the Authority conferred with her counsel but not with her. She refused to vacate, charging her lease was being vacated because of her having been elected President of the Parents' Club. No evidence was offered as to the purposes of the club or that its activities conflicted with the interests of the Authority. The Manager of the Authority stated unequivocally under oath that the termination of the lease had no connection whatever with the tenant's activities in connection with the Parents' Club. Judge Bickett so found. The finding was supported by competent evidence and should be conclusive. The directive of February 7, 1967 has no retroactive force. All critical events took place months before that date. This view does not require us to consider the directive on any basis except that it has no application to this case.

The judgment entered by Judge Bickett in the Superior Court of Durham County is supported by the record. Our original decision stands. The re-examination discloses

No error.