Black v. Brooks

• Decision Date: 08 March 2013
• Docket Number: No. S–12–176.,S–12–176.
• Citation: 285 Neb. 440,827 N.W.2d 256
• Parties: Christy BLACK, appellee, v. Lorna BROOKS, appellant.
• Court: Nebraska Supreme Court

285 Neb. 440

827 N.W.2d 256

Christy BLACK, appellee,

v.Lorna BROOKS, appellant.

No. S–12–176.

Supreme Court of Nebraska.

March 8, 2013.

Syllabus by the Court

[285 Neb. 440]1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

2. Judgments: Appeal and Error. An appellate court does not reweigh the evidence but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

3. Attorney Fees. In determining a reasonable attorney fee, the court is to consider the nature of the proceeding, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services.

4. Landlord and Tenant: Attorney Fees. The attorney fee provisions of Neb.Rev.Stat. §§ 76–1416(3) and 76–1425(2) (Reissue 2009) are mandatory.

5. Attorney Fees. The most common purpose behind fee-shifting statutes is to encourage private litigation to enforce a particular statute or right.

6. Attorney Fees. Allowing legal services organizations recovery of statutory attorney fees generally enhances their capabilities to assist those who are financially unable to obtain private counsel.

7. Attorney Fees. Insofar as a statutory attorney fee provision is designed to encourage private action to vindicate the rights granted by the statutory scheme, an award of attorney fees to the pro bono organization indirectly serves the same purpose as an award directly to a fee paying litigant.

8. Landlord and Tenant: Attorney Fees. To limit attorney fee awards under Neb.Rev.Stat. §§ 76–1416(3) and 76–1425(2) (Reissue 2009) to pro bono attorneys would be to insert the additional term “incurred” into the statutes.

9. Statutes: Appeal and Error. An appellate court may not add language to the plain terms of a statute to restrict its meaning.

Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P., Omaha, for appellant.

Catherine Mahern, Omaha, and Martha J. Lemar, of Milton R. Abrahams Legal Clinic, and Wesley Van Ert, Brett Wessels, and John Beauvais, Senior Certified Law Students, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and CASSEL, JJ.

McCORMACK, J.

NATURE OF CASE

The tenant in this case, Christy Black, brought this action against her landlord, Lorna Brooks, for noncompliance with the terms of two consecutive lease agreements and for failure to return her security deposit. Brooks counterclaimed for damages. After a bench trial, judgment was entered in favor of Black. The principal issue on appeal is whether statutory attorney fees can be awarded when the tenant is represented by attorneys working pro bono.

BACKGROUND

Black rented a house on South 38th Avenue in Omaha, Nebraska (38th Ave. property), pursuant to a written lease agreement with Brooks dated December 10, 2004. The lease was subject to a “Housing Assistance Payments” (HAP) contract with the Omaha Housing Authority. In 2008, a water break occurred at the house. The parties disagreed as to the promptness of Brooks' response to Black's complaint that the floors of the house were flooded and mold was “coming up on the walls.” In any event, because of the damage, Black eventually moved into another of Brooks' properties.

On May 7, 2008, Black entered into an agreement with Brooks to lease a property located on Hoctor Boulevard in Omaha (Hoctor property). Brooks entered into another HAP agreement with the Omaha Housing Authority in connection with the lease of the Hoctor property.

The district court found that Brooks committed willful noncompliance with both lease agreements, in violation of Neb.Rev.Stat. § 76–1425(2) (Reissue 2009). For both properties, Brooks charged Black additional monthly “appliance fees” in excess of the stated rent amounts in the leases and in violation of the HAP contractual addendums to the leases. Specifically, for the 38th Ave. property, Brooks demanded and received a total overpayment of $5,624.50. And for the Hoctor property, Brooks demanded and received a total overpayment of $2,050. Judgment was entered in favor of Black for those amounts. Brooks does not challenge that judgment in this appeal, and Brooks does not challenge the court's finding that Brooks' noncompliance was willful.

Deposit and Counterclaim

Brooks instead challenges on appeal the district court's judgment in favor of Black for the return of a security deposit in the amount of $647. Relatedly, Brooks asserts that the district court erred in dismissing, after trial, her counterclaim for damages to the 38th Ave. property.

The deposit was originally made in connection with the lease of the 38th Ave. property. Under the terms of the 38th Ave. property lease, release of the security deposit was subject to vacating the premises with no damage beyond normal wear and tear. The lease stated that Brooks agreed to return the security deposit to Black when she vacated, less any deduction for any of the costs, within 14 days after written demand was made. Further, if deductions were made from the deposit, Brooks would give Black a written statement of any costs for damages and/or other charges to be deducted from the security deposit. The language of the lease agreement largely mirrors Neb.Rev.Stat. § 76–1416(2) (Reissue 2009), which states:

Upon termination of the tenancy, property or money held by the landlord as prepaid rent and security may be applied to the payment of rent and the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with the rental agreement or section 76–1421. The balance, if any, and a written itemization shall be delivered or mailed to the tenant within fourteen days after demand and designation of the location where payment may be made or mailed.

The corresponding HAP contractual addendum did not specify that a demand by the tenant was required, but stated simply that “[w]hen the family moves out ..., the owner ... may use the security deposit ... as reimbursement for any unpaid rent payable by the tenant, any damages to the unit or any other amounts that the tenant owes under the lease.” But “[t]he owner must give the tenant a list of all items charged against the security deposit, and the amount of each item. After deducting the amount, if any, used to reimburse the owner, the owner must promptly refund the full amount of the unused balance to the tenant.” The HAP contractual addendum provided that in case of any conflict between the provisions of the HAP contract and the provisions of the lease or any other agreement between the owner and the tenant, the requirement of the addendum shall control.

Brooks admitted that she refused to return any portion of the $647 deposit for the 38th Ave. property. Brooks claimed Black damaged the property beyond the deposit amount. The testimony relating to the alleged damages will be set forth in more detail in our analysis below. Brooks also testified that Black never demanded that deposit from her. Black admitted that she never specifically requested an itemized list of alleged damages to the 38th Ave. property. On August 14, 2009, Black mailed a demand letter to Brooks requesting that Brooks return the $647 deposit. But that letter apparently referred to the deposit having been rolled over into a deposit for the Hoctor property and sought a return of the deposit for the Hoctor property, not the 38th Ave. property. The letter itself is not in evidence.

In her complaint filed on October 15, 2009, Black alleged that the unreturned $647 security deposit for the 38th Ave. property was applied as a security deposit for the Hoctor property. She demanded return of the deposit.

At trial, Black's testimony regarding the unwritten agreement to roll over the $647 deposit into a deposit for the Hoctor property was successfully objected to as parol evidence. Brooks testified that the lease agreement for the Hoctor property simply did not provide for a deposit. And Brooks testified that Black, accordingly, simply did not pay a deposit for that property.

The record reflects that on August 13, 2008, Brooks sent Black a “Notice to Cure or Quit” in which she stated that Black was delinquent in her appliance fee payments, as well as an unpaid deposit of $774. The Omaha Housing Authority had two versions of the Hoctor property lease in its file, and both were received into evidence. The leases were identical, except one acknowledged receipt of a security deposit of $774 and the other indicates no amount under the security deposit section.

At trial, Brooks argued that Black never demanded the deposit back from the 38th Ave. property because of the purported damage to that property. Black never paid a deposit for the Hoctor property, so there was nothing to return with respect to that lease. Brooks alternatively argued that Black's demand for the return of the $647 was deficient because Black asked for the deposit back from the Hoctor property and not the 38th Ave. property.

The court found Brooks' evidence of alleged damages relating to the 38th Ave. property was “not convincing or credible.” The court found that the security deposit from the 38th Ave. property was rolled over to serve as security against damage to the Hoctor property. Regardless, the court concluded that Black had made legal demand for the $647 and that Brooks was legally required to return it.

Attorney Fees

The district court awarded Black $6,930 in attorney fees pursuant to §§ 76–1416(3) and 76–1425(2). Section 76–1416(3) states that “[i]f the landlord fails to comply with subsection (2) of this section, the tenant may...