Bender v. North Meridian Mobile Home Park, 91-CA-00425

• Decision Date: 07 April 1994
• Docket Number: No. 91-CA-00425,91-CA-00425
• Citation: 636 So.2d 385
• Parties: Richard BENDER v. NORTH MERIDIAN MOBILE HOME PARK, Clyde Rose and Lannie Ritter.
• Court: Mississippi Supreme Court

Page 385

636 So.2d 385

Richard BENDER v. NORTH MERIDIAN MOBILE HOME PARK, Clyde Rose and Lannie Ritter.

No. 91-CA-00425.

Supreme Court of Mississippi.

April 7, 1994.

Rehearing Denied June 2, 1994.

Yogesh K. Nanji, Meridian, for appellant.

George Alan Evans, Dreyfus & Evans, Meridian, for appellees.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

PITTMAN, Justice, for the Court:

STATEMENT OF THE CASE

On December 5, 1988, Richard Bender (Bender) filed a complaint against North Meridian Mobile Home Park, Inc., Clyde Rose, individually and Lannie Ritter, individually. All three defendants are referred to collectively as "landlord" as they were agents of one another. Clyde Rose was the president of North Meridian Mobile Home Park, Inc., and Lannie Ritter was its manager. The complaint alleged wrongful conversion of Bender's property. On December 9, 1988, Bender filed his First Amended Complaint claiming that the property seized by landlord was exempt from attachment or execution.

Landlord filed its Answer and Defenses on January 4, 1989, and asserted that it had taken possession of tenant's property pursuant to the landlord's lien provided by Miss.Code Ann. Sec. 89-7-51 (1972). Landlord also counterclaimed for past due rent in the amount of $665.00 and storage fees in the amount of $590.00.

On March 16, 1989, Bender filed a motion to add the State of Mississippi as a party defendant based on his intention to challenge the constitutionality of Miss.Code Ann. Sec. 89-7-51 (Supp.1988). An Agreed Order entered on March 29, 1989, granted Bender leave to amend the complaint, but denied the request to add the State of Mississippi as a party defendant.

On April 17, 1989, Bender filed his Second Amended Complaint, adding the claim of wrongful eviction and deprivation of property without due process in violation of the Fourteenth Amendment to the United States Constitution. The due process claim also sought damages pursuant to 42 U.S.C. Sec. 1983 and attorney fees under Sec. 1988. The landlord answered on May 18, 1989, raising various defenses.

After completion of discovery, a trial was held in the Circuit Court without a jury on October 1 and 2, 1990. At the conclusion of the Appellant's case, the Trial Court granted a Motion to Dismiss as to Clyde Rose, individually. In addition, the trial court in its final Judgment entered March 20, 1991, specifically denied all relief prayed for by Bender against both Lannie Ritter and Clyde Rose, individually.

Bender filed his Notice of Appeal to this court on April 19, 1991.

FACTS

Richard Bender (Bender) entered into a six month lease on July 13, 1987, to rent trailer No. 4 from North Meridian Mobile Home Park, Inc., (landlord). The lease specified that the rent was $195.00 per month, but did not state when such rent was due.

Bender paid rent at various intervals and in varying amounts. Bender was behind on his rent from the beginning of the lease. Bender testified that no one complained about the way that he paid his rent. However, Lannie Ritter testified that he had talked with Bender many times about getting his rent paid. Through the end of November 1987, Bender was in arrears in the amount of $165.00.

The facts are disputed as to when Bender was locked out of the trailer. Bender testified that he had gone by to see Mr. Ritter on December 5, 1987, so that he would know that he was planning on bringing partial payment of the rent. He stated that he went to see Mr. Ritter because Mrs. Ritter had come by his trailer earlier to see if he had anything toward the rent. Bender stated that later that day when he returned to make a payment towards rent that he was locked After finding that the locks had been changed on the trailer, Bender stated that he went to see Mr. Ritter and attempted to give him some money towards rent, but Mr. Ritter would not accept it. Bender testified that Ritter told him not to come back to the trailer park, and if he did he would be shot as a trespasser.

out of his trailer. Bender testified that he received the eviction notice after he had been locked out of the trailer. Bender stated that all these events occurred on the same day.

Bender testified that he made several pleas with Mr. Ritter to allow him in the trailer to get some medication for his back injury but Ritter refused. Bender stated that he returned to the trailer three or four days after he had been locked out (Dec. 8 or 9, 1987) to get some papers for the Social Security Administration. He testified that he was not allowed to take any other items from the trailer.

Lannie Ritter did not testify at trial, but his deposition was admitted into evidence. Ritter testified that he and Clyde Rose decided that Bender must be evicted. Ritter testified that he served Bender with the eviction notice on December 5, 1987. He stated that he did not take further action until December 8 or 9, 1987. On either December 8 or 9 Ritter stated that he changed the locks on the trailer Bender was renting while Bender was away. Ritter stated that when Bender came back to the trailer park, he wanted to be let back in his trailer. Ritter stated that his wife went to the trailer with Bender and allowed him to get his medication out of the trailer. Ritter stated that the day after he locked Bender out of the trailer he (Bender) returned to the trailer park and threatened him with a gun. Ritter stated that when he threatened to call the sheriff, Bender left the trailer park. Ritter said that was the last time that he saw Bender.

Landlord kept Bender's property locked in the rental trailer No. 4 for about two months, until some date in February. At that time, landlord moved Bender's property to a storage trailer and prepared an inventory. Bender's property remained in the storage trailer until May or June 1988. The landlord sold the inventoried items at a general rummage sale in June 1988. An advertisement announcing the rummage sale was published in the local newspaper, but no reference was made to Bender's possessions being put up for sale. Bender was not notified of the sale. According to the landlord, the rummage sale of all items, including the inventoried property of the tenant, brought in thirty-five ($35.00) dollars.

ASSIGNMENT OF ERRORS

Bender assigns the following as error:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE TENANT WAS NOT WRONGFULLY EVICTED.

II. WHETHER THE TRIAL COURT ERRED BY FINDING THAT LANDLORD, IN LOCKING UP TENANT'S POSSESSIONS PURSUANT TO MISS. CODE ANN. SECTION 89-7-51(2), DID NOT VIOLATE DUE PROCESS PROTECTIONS GUARANTEED TENANT BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND 42 U.S.C. SECTION 1983.

III. WHETHER THE ATTACHMENT FOR RENT STATUTES ARE UNCONSTITUTIONAL.

IV. WHETHER THE COURT ERRED IN DENYING RECOVERY OF ALL DAMAGES FOR CONVERSION BY LANDLORD AND IN FAILING TO AWARD DAMAGES FOR LANDLORD'S VIOLATIONS OF 42 U.S.C. SECTION 1983.

DISCUSSION

I.

1.

Bender asserted that he was wrongfully evicted. The landlord stated that it had a landlord's lien pursuant to Miss.Code Ann. Sec. 89-7-51(2) for non-payment of rent. Section 89-7-51(2) states:

All articles of personal property, except a stock of merchandise sold in the normal Landlord claimed that the Landlord Lien Statute permitted him to lock tenant out of the trailer and thereby eject Bender from the premises. The trial court agreed with the Landlord and found that the Landlord Lien Statute, Sec. 89-7-51(2) (1972), permitted a landlord to seize possession of the leased premises without legal process and that the statute was an additional method of evicting a tenant. The trial court also mixed the issue by discussing the constitutionality of Sec. 89-7-51(2) with the wrongful eviction issue. The court held that the landlord acted in good faith in exercising its rights under the landlord lien statute. The court stated:

course of business, owned by the lessee of real property and situated on the leased premises shall be subject to a lien in favor of the lessor to secure the payment of rent for such premises as has been contracted to be paid, whether or not then due. Such lien shall be subject to all prior liens or other security interests perfected according to law. No such articles of personal property may be removed from the leased premises until such rent is paid except with the written consent of the lessor. All of the provisions of law as to attachment for rent and proceedings thereunder shall be applicable with reference to the lessor's lien under this section.

The Court finds that the Defendant acted in good faith in exercising it's rights under said statute. Although the parties did not submit any Mississippi authorities on point, the Supreme court of Oklahoma considered the constitutionality of a statute similar to ours in Hitchcock versus Allison, 572 P.2d 982 (Oklahoma 1977). There the Court said that the landlord's seizure of tenant's property to secure payment for repairs, unpaid rentals and cleaning, accomplished under statute creating landlord's lien was constitutional when tested by the Fourteenth Amendment of the United States Constitution as applied through 42 U.S.C. Section 1983. This court adopts the findings and conclusions reached in Hitchcock. Therefore, the Court finds that there is no merit to Plaintiff's contention of wrongful eviction in this case since Plaintiff was clearly in arrears for past due rent and deposit on December 5, 1987. Also, Plaintiff was given a written notice on receipt number 0275, dated November 8, 1987, (Exhibit Four) that stated if the balance of the rent was not paid by November 11, 1987, he would have to move. Plaintiff did neither.

Bender argued that the Landlord Lien Statute Sec. 89-7-51 does not provide for the ejectment of a tenant from the leased premises for failure to pay rent. This Court agrees. Section 89-7-51(2) is not an alternative remedy for removal of a tenant from the leased premises as the lower court stated. Section 89-7-51...