Palmer Gardens v. Rodgers

[Cite as Palmer Gardens v. Rodgers, 2020-Ohio-5040.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Palmer Gardens Court of Appeals No. L-20-1003
Appellee Trial Court No. CVG-19-13769
v.
Danashia Rodgers DECISION AND JUDGMENT
Appellant Decided: October 23, 2020
*****
Jeremy W. Levy and Brianna L. Stephan, for appellee.
Kaser S. Bhatti, for appellant.
*****
MAYLE, J.
{¶ 1} In this forcible entry and detainer action, appellant, Danashia Rodgers, appeals the
December 6, 2019 judgment of the Toledo Municipal Court overruling her objections to the
September 16, 2019 magistrate’s decision that granted a judgment for possession to appellee,
Palmer Gardens Apartments (“Palmer Gardens”). For the following reasons, we reverse.
I. Background and Facts
{¶ 2} On August 27, 2019, the magistrate held a bench trial on Palmer Gardens’s
complaint. Palmer Gardens presented the testimony of Crystal Hauser, its property manager, and
Rodgers testified in her own behalf. The following facts were adduced at the trial.
{¶ 3} In January 2017, Rodgers signed a 12-month lease with Palmer Gardens for an
apartment in Palmer Gardens’s complex. Under the HUD-subsidized lease, Rodgers’s portion of
the monthly rent was $78 and was due on the first of the month. At some point that is not clear
from the record, Rodgers’s portion of the rent was reduced to $25 a month.
{¶ 4} Hauser testified that Rodgers owed Palmer Gardens rent, late fees, and fees for
damage to the apartment. On June 6, 2019, Hauser claims to have posted a “NOTICE TO
COMPLY OR VACATE” (“10-day notice”) on Rodgers’s door. The notice states that Rodgers
was “in violation of the rules, regulations, rental agreement, and/or obligations or restrictions
applicable to your tenancy of the premises * * *.” Rodgers’s address was on the next line, and
typed under her address was “NON PAYMENT [sic] OF RENT” with no further explanation.
The notice told Rodgers that her “tenancy will be terminated effective 06/16/2019,” and offered
her the opportunity to “discuss your termination of tenancy with the Landlord and/or the
Landlord’s agent within the ten (10) day period of service of this notice.” Rodgers denies that
she ever received this notice.
{¶ 5} On June 17, 2019, Hauser posted a “NOTICE TO LEAVE PREMISES” under
R.C. 1923.04 (“3-day notice”) on Rodgers’s door. The notice asked Rodgers to leave the
premises due to “NON PAYMENT [sic] OF RENT” and stated that her failure to leave could
result in an eviction action being filed against her. It also stated that complying with the notice
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by leaving the apartment within three days would prevent Palmer Gardens from filing an eviction
action.
{¶ 6} After Rodgers received the 3-day notice, she attempted to pay the rent and late fees
due for June 2019—which totaled $43—but Hauser returned the payment. Hauser included a
letter, dated June 20, 2019, with the returned payment. The letter informed Rodgers that Palmer
Gardens was rejecting the payment because “[a]fter a 3 day notice is issued your account must be
paid in full for us to accept it. You have damages due from 4/26/2019 and 4/30/2019. Per your
lease agreement ( also enclosed) those damages were to be paid within 30 days, or by 5/26/2019
and 5/30/2019.”
{¶ 7} On cross-examination, Hauser agreed with defense counsel that “[she] refused rent
because [she] wanted payment of the damages[.]” Her reasoning for this position was that “the
damages become part of her rent, so [Rodgers] owed me more than * * *” the $43 she attempted
to pay after Hauser posted the 3-day notice. Hauser based this belief on a provision in the lease
stating that “[w]henever damage is caused by carelessness, misuse, or neglect on the part of the
Tenant, his/her family or visitors, the Tenant agrees to pay * * * the cost of all repairs and do so
within 30 days after receipt of the Landlord’s demand for the repair charges * * *.” Hauser’s
testimony made clear that Palmer Gardens wanted Rodgers to pay the charges that she had
incurred for damage to the apartment in April 2019 to avoid eviction.
{¶ 8} Hauser also testified that Rodgers paid her rent late many times. During her
testimony, Rodgers offered into evidence a ledger showing her rent-payment history from July
2018 to June 2019. Of the 12 months covered in the ledger, Rodgers paid only one month’s rent
on time. In the other 11 months, based on the late fees Palmer Gardens charged and the dates
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payments were posted to Rodgers’s account, Rodgers paid her rent 3, 4, 4, 6, 6, 8, 14, 23, 23, and
54 days late, and then attempted to pay her rent 17 days late in June 2019 when Hauser returned
her payment because she tendered it after Palmer Gardens had posted the 3-day notice.1 Other
than the June 2019 payment, Palmer Gardens routinely accepted Rodgers’s late rent payments.
{¶ 9} Rodgers testified that she lived in the apartment with her three young children.
Her rent payment was $25 a month, but she had no source of income. Although she tried to pay
her rent for June 2019, Palmer Gardens would not accept it. She admitted that Palmer Gardens
had charged her for damage to the apartment, but she disputed some of the charges. On cross-
examination, Hauser acknowledged that Rodgers had disputed the damage charges before Palmer
Gardens filed the eviction complaint. At the time of trial, Rodgers was willing and able to pay
the rent she owed for June, July, and August 2019. Rodgers stated that she did not previously
attempt to make rent payments in July or August of 2019—even though she continued to live in
the apartment—because Hauser had refused to accept her rent in June.
{¶ 10} On September 16, 2019, the magistrate filed his decision granting judgment in
favor of Palmer Gardens. The magistrate found that Rodgers was in default under the lease since
July 28, 2019, that Palmer Gardens lawfully served Rodgers with a notice to vacate the premises,
and that Rodgers “knew if tendering rent late notify[.]”
1
The first entry on the ledger is a charge for $29 in late fees from June 2018. When rent
was late, Rodgers’s lease allowed Palmer Gardens to charge “a fee of $5 on the 6th day
of the month. Thereafter, [Palmer Gardens] may collect $1 for each additional day the
rent remains unpaid during the month it is due.” The first payment on the ledger was
recorded on July 25, 2018. From this we infer that Rodgers was also 54 days late with
her rent for June 2018.
4.
{¶ 11} On September 30, 2019, Rodgers filed objections to the magistrate’s decision.
She argued that (1) Palmer Gardens improperly served the 10-day and 3-day notices; (2) Palmer
Gardens waived its right to terminate her tenancy without first demanding strict compliance with
the lease because the parties established a course of conduct of Rodgers paying rent late and
Palmer Gardens accepting late rent payments; (3) Palmer Gardens claimed that it was evicting
Rodgers for nonpayment of rent, but was really seeking payment of repair charges; and
(4) evicting Rodgers was inequitable.
{¶ 12} Palmer Gardens responded that (1) it properly served the 10-day and 3-day
notices pursuant to state and federal law, (2) the parties did not establish a course of conduct that
constituted a waiver of Rodgers’s obligation to timely pay rent, (3) it was terminating Rogers’s
tenancy for material noncompliance with the payment terms in the lease, and (4) it was not
inequitable to evict Rodgers.
{¶ 13} On December 6, 2019, the trial court overruled all of Rodgers’s objections and
entered judgment in favor of Palmer Gardens.
{¶ 14} Rodgers now appeals, raising four assignment of errors:
I. THE TRIAL COURT ERRED IN FAILING TO PROPERLY
CONSIDER THE COURSE OF CONDUCT ESTABLISHED BETWEEN
THE PARTIES
II. THE TRIAL COURT ERRED IN FAILING TO CONSIDER
THAT THE REFUSAL OF JUNE RENT WAS DUE TO A NON-
PAYMENT OF A CHARGE FOR DAMAGES
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III. THE TRIAL COURT ERRED IN GRANTING JUDGMENT
FOR AN EVICTION WHEN THE PROPER NOTICES WERE NOT
SERVED UPON MS. RODGERS
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN
FAILING TO CONSIDER THE INEQUITY THAT WOULD BE
PLACED ON MS. RODGERS
II. Law and Analysis
{¶ 15} In her first assignment of error, Rodgers argues that the parties established a
course of conduct that consisted of Rodgers paying her rent late and Palmer Gardens accepting
her late payments. In support of her argument, Rodgers cites to the rent ledger that she presented
at trial, which shows the consistently late rent payments that she tendered and Palmer Gardens
accepted from July 2018 to May 2019. Palmer Gardens responds that although Rodgers paid
rent late multiple times, it did not accept rental payments “substantially later” than the due dates,
as required to waive its right to timely rent payments.
{¶ 16} In her second assignment of error, Rodgers argues that, although Palmer Gardens
claimed that it was seeking to evict her for nonpayment of rent, its actual grounds for eviction
was nonpayment of charges for repairs to her apartment. Because of the parties’ course of
conduct, Rodgers argues, Palmer Gardens cannot refuse her late June 2019 rent, despite the fact
that she did not pay the full balance due on her account. Palmer Gardens contends that it sought
to terminate Rodgers’s tenancy on the basis of material noncompliance with the payment terms
of the lease—not simply because she refused to pay the repair charges—and that Rodgers did not
attempt to pay rent until after it served her with the 3-day notice.
6.
{¶ 17} In her third assignment of error, Rodgers argues that neither the 10-day notice nor
3-day notice complied with the lease or HUD regulations. In support of her claim, Rodgers
argues that the 10-day notice does not contain the specificity required by federal law because it
does not list the amount of rent she owed or the date Palmer Gardens calculated the amount she
owed. Regarding the 3-day notice, Rodgers argues that it cannot substitute for the 10-day notice
required by the HUD regulations because it does not contain the correct day she must leave the
property and fails to state the grounds for eviction with enough detail for her to prepare a defense
by failing to specify the amount of rent owed and the date of computation. Rodgers further
argues that admission of the 10-day notice was improper because it was not attached or referred
to in the complaint.
{¶ 18} Palmer Gardens responds that both the 10-day notice and 3-day notice complied
with state and federal law, the magistrate properly admitted the 10-day notice at trial, and the
trial court properly found by a preponderance of the evidence that Rodgers received the 10-day
notice. In support, Palmer Gardens argues that neither state nor federal law requires the
specificity that Rodgers suggests and, although it was not attached to the complaint, the
magistrate’s admission of the 10-day notice was not an abuse of discretion. Palmer Gardens
further argues that Rodgers was not prejudiced by any alleged inadequacy of the notices.
{¶ 19} Finally, in her fourth assignment of error, Rodgers argues that it would be
inequitable to evict her because she and her children will be homeless if her tenancy is
terminated. Palmer Gardens responds that equity is better served by allowing it to evict Rodgers
and lease the unit to “a tenant better able to abide by the terms established by HUD and outlined
in [Palmer Gardens’s] standard lease agreement * * *.”
7.
A. Standard of review
{¶ 20} This case involves an appeal of the trial court’s judgment overruling objections to
the magistrate’s decision and adopting the decision in full. When a trial court considers
objections to a magistrate’s decision, the court must “undertake an independent review as to the
objected matters to ascertain that the magistrate has properly determined the factual issues and
appropriately applied the law.” Civ.R. 53(D)(4)(d). On appeal, however, we review the trial
court’s ruling on objections to a magistrate’s decision only for an abuse of discretion. Baker v.
R/A Cab Co., 6th Dist. Lucas No. L-19-1031, 2019-Ohio-4375, ¶ 10. Abuse of discretion means
that the trial court’s decision was unreasonable, arbitrary, or unconscionable. State ex rel.
Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996).
B. The trial court properly admitted the 10-day notice into evidence.
{¶ 21} Preliminarily, we address Rodgers’s argument (raised under her third assignment
of error) that the trial court could not consider the 10-day notice because it was not attached to
the complaint. A trial court has broad discretion to admit or exclude evidence, and we will not
reverse its decision absent an abuse of discretion. State v. Whites Landing Fisheries, LLC, 2017-
Ohio-7537, 96 N.E.3d 1236, ¶ 42 (6th Dist.).
{¶ 22} Rodgers’s only argument against the admissibility of the 10-day notice is
that there is “inadequate proof” that Rodgers was served with the 10-day notice because it
was not attached to the complaint and because Rodgers testified that she only received
the 3-day notice. However, Hauser testified that she posted the 10-day notice on June 6,
2019, and the court was free to believe Hauser’s testimony over Rodgers’s testimony.
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For that reason, we do not find that the trial court abused its discretion by considering the
10-day notice.
C. The trial court erred in granting Palmer Gardens a writ of restitution
based on grounds not specified in the notice of termination.
{¶ 23} Rodgers’s second assignment of error is dispositive of the case. In it, she argues
that Palmer Gardens evicted her for failing to pay for alleged damage to her apartment, even
though Palmer Gardens stated in the 10-day and 3-day notices that her lease was being
terminated for “NON PAYMENT [sic] OF RENT.” Palmer Gardens responds that it sought to
terminate her tenancy based on material noncompliance with the terms of her lease—not just her
failure to pay for the repair charges—which is permissible under the terms of the lease.
{¶ 24} A forcible entry and detainer action under R.C. 1923.02 is an action upon a
contract through which a landlord seeks to regain possession of its premises from a
tenant. Tillimon v. Jankowski, 6th Dist. Lucas No. L-91-262, 1992 WL 114606, *2 (May 29,
1992); Fodor v. First Natl. Supermarkets, Inc., 63 Ohio St.3d 489, 491, 589 N.E.2d 17 (1992).
Like any other contract, a written lease must be construed to carry out the intent of the parties,
which we presume is reflected in the plain language of the lease. Tillimon at *2; Beverage
Holdings, LLC v. 5701 Lombardo, LLC, 159 Ohio St.3d 194, 2019-Ohio-4716, 150 N.E.3d 28,
¶ 13. When the language in the lease is plain and unambiguous, we enforce the terms as written,
and we give the words used their ordinary meanings. Beverage Holdings at ¶ 13.
{¶ 25} As a landlord accepting HUD subsidies, Palmer Gardens was required to comply
with federal regulations in addition to state landlord-tenant laws before terminating Rodgers’s
lease. Schroeder Co. v. Coates, 172 Ohio App.3d 254, 2007-Ohio-2956, 874 N.E.2d 832, ¶ 34
(6th Dist.). Relevant here, 24 C.F.R. 247.3(a)(1) limits a landlord to terminating a tenancy for
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“[m]aterial noncompliance with the rental agreement,” which is defined as, among other things,
“[n]on-payment of rent or any other financial obligation due under the rental agreement
(including any portion thereof) beyond any grace period permitted under State law * * *.”
24 C.F.R. 247.3(c)(4).2 The landlord must provide the tenant with a written notice of its intent to
terminate the lease that includes the date the tenancy will terminate, states the landlord’s reasons
for termination with enough specificity to enable the tenant to prepare a defense, and advises the
tenant that if she remains in the unit after the termination date, the landlord can enforce the
termination only by bringing a judicial action at which the tenant may present a defense. 24
C.F.R. 247.4(a). When the landlord files a judicial eviction action, the only permissible bases for
the eviction are the grounds for termination that the landlord included in the written termination
notice. 24 C.F.R. 247.6(b).
{¶ 26} Palmer Gardens incorporated these requirements into its lease with Rodgers.
Under section 23(b) of Rodgers’s lease, “[a]ny termination of this Agreement by [Palmer
2
There are other regulations—with slightly different language and requirements—that
govern different HUD subsidy programs. See, e.g., 24 C.F.R. 880.607(b)(3) (containing
the same definitions of “material noncompliance” as 24 C.F.R. 247.3(c) except for the
term regarding “[n]on-payment of rent or any other financial obligation due under the
rental agreement (including any portion thereof) beyond any grace period permitted
under State law * * *” in 24 C.F.R. 247.3(c)(4)). The record does not contain any
information about the specific subsidy program in which Rodgers was enrolled.
However, the first page of the lease Rodgers signed says that it is a “MODEL LEASE
FOR SUBSIDIZED PROGRAMS,” the bottom of each page of the lease notes that it is
“form HUD-90105a,” and the language in the lease mirrors language in 24 C.F.R. Part
247. We infer from this that Palmer Gardens chose to use forms provided by HUD for
subsidy programs that are controlled by 24 C.F.R. Part 247, and, by entering into such a
lease with Rodgers, we presume that Rodgers was enrolled in a subsidy program
controlled by 24 C.F.R. Part 247. Accordingly, we will use 24 C.F.R. Part 247 to guide
our analysis.
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Gardens] must be carried out in accordance with HUD regulations, State and local law, and the
terms of this Agreement.” Section 23(c) of the lease lists various justifications for Palmer
Gardens terminating the lease, including Rodgers’s “material noncompliance” with the terms of
the lease. Among other things, section 23(d) defines “material noncompliance” as “[n]on-
payment of rent or any other financial obligation due under the lease beyond any grace period
permitted under State law.” Before terminating Rodgers’s tenancy, section 23(e) of the lease
required Palmer Gardens to give Rodgers written notice that included “the grounds for the
proposed termination.” Specifically, the lease required that
[a]ll termination notices must:
• specify the date this Agreement will be terminated;
• state the grounds for termination with enough detail for the Tenant to
prepare a defense; [and]
***
• advise the Tenant of his/her right to defend the action in court.
Section 23(f) also obligated Palmer Gardens to “rely only upon those grounds cited in the
termination notice required by * * *” section 23(e) if it initiated an eviction action against
Rodgers.
{¶ 27} Here, Palmer Gardens posted a 10-day notice, which stated that it intended to
terminate Rodgers’s tenancy due to “NON PAYMENT [sic] OF RENT.” Hauser testified that
Rodgers owed Palmer Gardens money for damages to the apartment and “some” late fees at the
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time she posted the 10-day and 3-day notices.3 From the trial testimony and the ledger that
Rodgers offered into evidence, it appears that the only actual rent that Rodgers owed as of
June 6, 2019 (the date of the 10-day notice) was rent for the month of June 2019; the remaining
charges on her account were for damages to the apartment in April 2019 and a small amount of
unpaid late fees from May 2019. After posting the 3-day notice on June 17, 2019, Palmer
Gardens added a cleaning fee and late fees for June 2019 to Rodgers’s account.
{¶ 28} Palmer Gardens’s attorney and Hauser both commented at trial that the fees
Rodgers owed for damage to the apartment “become” part of her rent, so Palmer Gardens was
justified in evicting Rodgers based on her failure to pay the repair charges. Hauser based this
belief on section 11 of the lease, which addresses damage to the property: “[w]henever damage
is caused by carelessness, misuse, or neglect on the part of the Tenant, his/her family or visitors,
the Tenant agrees to pay * * * the cost of all repairs and do so within 30 days after receipt of the
Landlord’s demand for the repair charges * * *.” However, nothing in that section indicates that
the costs of any repairs to the leased property somehow “become” rent under any circumstance.
{¶ 29} Indeed, there is nothing in the lease that supports the notion that unpaid damage
charges “become” rent. To the contrary, section 3 of the lease specifies the amount of rent that
Rodgers must pay every month, and section 4 of the lease states that the amount of rent “may be
changed during the term of this Agreement * * *” only if certain circumstances occur—none of
which are applicable here. Although section 11—the section related to damages—addresses rent
to some extent, it merely requires the tenant to continue paying rent for any period that the
3
Section 5 of the lease specifically states that Palmer Gardens “may not terminate this
Agreement for failure to pay late charges * * *.”
12.
apartment is damaged, even if the unit is not habitable, and informs the tenant that she would
have to pay the “HUD-approved market rent” (rather than the unsubsidized portion the tenant
generally pays) for the apartment while the apartment is uninhabitable. Simply put, the lease
does not provide that charges for damage to the property would become part of the tenant’s
monthly rent obligation.
{¶ 30} In its brief, Palmer Gardens argues that it “sought to terminate [Rodgers’s]
tenancy on the basis of her material noncompliance with terms of the lease regarding the amount
and manner rent was to be paid”—arguing that Rodgers’s attempt to pay rent in June 2019
occurred after both the 10-day and 3-day notices were posted, and that Hauser’s refusal of rent
did not occur until after the notices were posted and any grace periods expired. But, both notices
state that Palmer Gardens was terminating Rodgers’s tenancy due to “NON PAYMENT [sic] OF
RENT”—i.e., Rodgers had not paid the rent that was due under the lease4—not “material
noncompliance with terms of the lease regarding the amount and manner rent was to be paid.”
{¶ 31} Moreover, given that (1) Palmer Gardens told Rodgers that her June 2019 rent
payment was rejected because “your account must be paid in full for us to accept it,”
(2) Rodgers’s account consisted primarily of non-rent charges, (3) Hauser confirmed at trial that
“[she] refused rent because [she] wanted payment of the damages,” and (4) Hauser testified that
she believed that non-rent charges “become” rent under the lease, we cannot find that Palmer
Gardens sought to evict Rodgers for “NON PAYMENT [sic] OF RENT” as stated in the
termination notices. Rather, Palmer Gardens sought to evict Rodgers because her account was
4
We express no opinion as to whether Palmer Gardens stated the grounds for termination
with enough detail for Rodgers to prepare a defense even though the notice failed to
specify the amount of rent owed and the date of computation.
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not “paid in full.” Any suggestion to the contrary is unreasonable, arbitrary, and unconscionable
given the record that was before the trial court.
{¶ 32} Accordingly, because Palmer Gardens sought to evict Rodgers for a reason other
than “NON PAYMENT [sic] OF RENT”—in direct contravention of both the terms of the lease
and the HUD regulations governing Rodgers’s tenancy—the trial court abused its discretion in
overruling Rodgers’s objections to the magistrate’s decision and granting Palmer Gardens a writ
of possession. Accordingly, we find that Rodgers’s second assignment of error is well-taken.
D. Rodgers’s remaining assignments of error are moot.
{¶ 33} Given our disposition of Rodgers’s second assignment of error, we conclude that
her remaining assignments of error are moot and are not well-taken.
III. Conclusion
{¶ 34} Because Palmer Gardens failed to comply with the terms of the lease and the
HUD regulations governing Rodgers’s tenancy by seeking to evict Rodgers for reasons that were
not specified in the applicable 10-day and 3-day notices, the December 6, 2019 judgment of the
Toledo Municipal Court is reversed and vacated. Palmer Gardens is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment reversed
and vacated.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
14.
Palmer Gardens v. Rodgers
C.A. No. L-20-1003
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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