Bel Fury Invs. Grp. v. Stewart
| Decision Date | 06 April 2021 |
| Docket Number | No. A-20-508.,A-20-508. |
| Parties | BEL FURY INVESTMENTS GROUP, LLC, A NEBRASKA LIMITED LIABILITY COMPANY, APPELLANT, v. TREVOR E. STEWART, APPELLEE. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: TIMOTHY P. BURNS, Judge, on appeal thereto from the County Court for Douglas County: STEPHANIE R. HANSEN, Judge. Judgment of District Court affirmed.
Justin D. Eichmann, of Houghton, Bradford, and Whitted, P.C., L.L.O., for appellant.
Lawrence G. Whelan, of Whelan Law Office, for appellee.
This appeal involves a dispute between a landlord, Bel Fury Investments Group, LLC (Bel Fury), and a tenant, Trevor E. Stewart. Specifically, the dispute concerns whether Bel Fury's unilateral rent increases terminated the written lease agreement and created a month-to-month tenancy under the default statutory provisions. The county court found in favor of Stewart and ordered Bel Fury to return Stewart's security deposit. The district court affirmed the judgment and awarded attorney fees to Stewart. Finding that the district court did not err in affirming the judgment of the county court or in awarding attorney fees to Stewart, we affirm.
On February 19, 2013, Bel Fury and Stewart entered into a written lease agreement for a residential property in Omaha, Nebraska. The lease agreement provided for a term of 12 months, commencing on March 1, 2013, with a monthly rent of $750. Stewart provided the value of 1 month's rent as a security deposit. The agreement provided for additional 6-month extension terms as follows:
Unless at least two month's [sic] notice, in writing, be given by the Tenant to the Landlord or one month's notice by the Landlord to the Tenant previous to the expiration of the lease, of an intention to terminate the lease at the end of the term, then the lease shall be extended for an additional period of six months. Unless one month's notice of intention to terminate at the end of such extension be given by one of the parties, the lease shall be further extended for six month period to six month period thereafter until either party furnishes the other at least one month's of intention [sic] to terminate.
The written lease agreement did not contain any provisions regarding rent increases in the event of additional 6-month terms.
With respect to early cancellation of the lease by Stewart, the agreement provided:
It is uncontested that Stewart continued to reside at the property beyond the original 12-month term. It is also uncontested that Stewart did not object when Bel Fury raised the monthly rent on January 30, 2014; January 29, 2015; and January 26, 2016. The record shows that Stewart duly paid the increased rent without protest until January 2017.
On January 30, 2017, Bel Fury sent Stewart a letter notifying him that his rent would again be increased. This was less than 30 days prior to the conclusion of the sixth 6-month extension term, which ended on February 28. On February 27, Stewart called Bel Fury and gave oral notice that he intended to terminate the lease in 30 days. Bel Fury's agent told Stewart that his notice of intent to terminate must be written, and that he must give 60 days' advance notice according to the terms of the lease agreement. That same day, Stewart sent Bel Fury written notice of his intent to terminate. Because Bel Fury had told Stewart that he must give 60 days' advance notice, his letter stated that Stewart intended to terminate "our rental agreement effective May 1, 2017." Stewart resided on the property through April 30, remitting rent for March and April. After vacating the premises, Stewart did not request the return of his security deposit.
On May 31, 2018, Bel Fury filed a complaint in the county court for Douglas County alleging that Stewart had failed to comply with the terms of the written lease agreement andrequesting $1,590.57 in damages. The request for damages was based on an itemized accounting, which reflected that Bel Fury had retained Stewart's security deposit and credited it toward various fees, which exceeded the amount of the deposit. The itemization was appended to Bel Fury's complaint.
Stewart filed an answer and a counterclaim, alleging that Bel Fury had refused to accept his notice of termination and that as a result, he had incurred damages in the form of an $855 rental fee and $49.07 in utility charges for the month of April 2017. Stewart alleged that Bel Fury had refused to refund his $750 security deposit and made a formal demand for its return. Stewart additionally requested reasonable attorney fees.
A bench trial on Bel Fury's claims and Stewart's counterclaims was held on May 4, 2020.
Bel Fury presented the testimony of Scott Bloemer, a managing member of Bel Fury. Bloemer testified that Bel Fury's "case-in-chief [was] primarily about the cancellation fee, which was not paid by [Stewart]." On cross-examination, Bloemer clarified that Bel Fury was only requesting a $1,056 cancellation fee and not the additional damages alleged in its complaint. Bloemer testified that the basis for this fee was Stewart's failure to give notice of his intent to terminate the lease at least 30 days prior to the conclusion of the 6-month extension term. Bloemer testified that because Stewart had not provided sufficient notification, he was subsequently bound to an additional 6-month extension term, and that Stewart was required to comply with the early cancellation provisions of the lease agreement, which included a fee.
Stewart testified on his own behalf. He testified that he was requesting only the return of his security deposit as well as attorney fees and costs. Stewart testified that he received Bel Fury's last written notice of rent increase on February 2, 2017. Stewart testified that he had not consented to the 2017 rent increase and that he only paid rent at the increased rate in March and April to avoid conflict with Bel Fury. In support of his request for attorney fees, Stewart submitted an affidavit written by his counsel.
In a journal entry and order, the county court found that there "was no mutual assent to the change in the rental amount" and that because "there was no mutual assent to the change in the contract term, there is no contract." The county court found that because there was no enforceable contract, the default provisions of the Uniform Residential Landlord and Tenant Act applied and that a month-to-month tenancy existed between the parties. The county court therefore ordered Bel Fury to return Stewart's $750 security deposit. The order did not include an award of attorney fees to Stewart.
Bel Fury appealed the county court's order to the district court for Douglas County. Bel Fury assigned that the county court erred in (1) determining that there was no mutual assent to the change in rental amount, (2) determining that there was no contract between the parties, and (3) applying "common law/statutory law" to the case. Stewart also filed a statement of errors in the district court on cross-appeal, assigning that the county court erred in not awarding him reasonable attorney fees.
After hearing arguments, the district court issued an order affirming the judgment of the county court with respect to the return of Stewart's security deposit and modifying the judgment to award Stewart $5,085.67 in attorney fees. Bel Fury now appeals.
Restated, Bel Fury assigns that the district court erred in (1) affirming the holding of the county court which found that Bel Fury's unilateral rent increase terminated the written agreement and created a month-to-month tenancy and (2) modifying the county court's judgment to include an award of attorney fees to Stewart.
In an appeal from the county court general civil docket, the district court acts as an immediate court of appeals and not as a trial court. See In re Conservatorship of Mosel, 234 Neb. 86, 449 N.W.2d 220 (1989). Both the district court and a higher appellate court generally review appeals from the county court for error appearing in the record. State v. Patterson, 7 Neb. App. 816, 585 N.W.2d 125 (1998). When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. In re Estate of Marsh, 307 Neb. 893, 951 N.W.2d 486 (2020).
Enforceability of Lease Agreement.
Bel Fury first assigns that the district court erred in finding that the increases in rent nullified the lease and created a month-to-month tenancy pursuant to the terms of the Uniform Residential Landlord and Tenant Act. Bel Fury argues that the record shows "the parties contemplated an increase in rental amounts," as reflected by the language of the lease agreement. Brief for appellant at 10. In support of this argument, Bel Fury points to the provision relating to the early cancellation fee which states that in the event the tenant terminates the lease early during a 6-month extension term, the tenant would owe a fee amounting to 10 percent "of the total...
To continue reading
Request your trial