Cuyahoga Metro. Hous. Auth. v. Younger

• Decision Date: 28 April 1994
• Docket Number: No. 65302,65302
• Citation: 639 N.E.2d 1253,93 Ohio App.3d 819
• Parties: CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Appellant, v. YOUNGER, Appellee.
• Court: Ohio Court of Appeals

Page 819

93 Ohio App.3d 819

639 N.E.2d 1253

CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Appellant, v. YOUNGER, Appellee.

No. 65302.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided April 28, 1994.

Mark Witt, Cleveland, for appellant.

Legal Aid Soc., Edward Gregory and Peter M. Iskin, Cleveland, for appellee.

HARPER, Judge.

Plaintiff-appellant, the Cuyahoga Metropolitan Housing Authority ("CMHA"), appeals from the dismissal of its forcible entry and detainer action instituted against defendant-appellee, Devonia Younger. CMHA challenges the dismissal which was based on its failure to comply with federal notice requirements, specifically Section 966.4(l )(3)(ii), Title 24, C.F.R. A careful review of the record compels affirmance.

Younger executed a lease on April 16, 1992 for a dwelling unit located at 17801 Parkmount, Cleveland, Ohio. The dwelling unit is part of CMHA's Riverside Park Estates, which it owns and manages pursuant to the federal Public Housing Program. See Part 966, Title 24, C.F.R.

CMHA, through its manager, issued a "Notice of Termination and Invitation to Explain" to Younger on September 4, 1992. This notice advised Younger that: (1) CMHA possessed information concerning violations of her lease; (2) CMHA would refuse to accept rent payments pending the eviction action, but she was still responsible for past due rent; (3) her lease would be terminated thirty days after the notice, and eviction proceedings would commence unless the matter was resolved; and (4) she had an opportunity to personally reply to the notice on September 9, 1992 or to make other arrangements.

One of the attachments to the notice contained the following alleged lease violations:

"On or about August 18, 1992, you were issued a Lease Violation Notice from the Management Office for Unauthorized Occupants in your Unit, and for disturbance coming from you [sic ] unauthorized occupants as well as possible illegal activities in your residence of 17801 Parkmount Avenue, Cleveland, Ohio 44135 Cuyahoga County.

"On or about August 11, 1992, you were issued a Lease Violation Notice from the Management Office for Unauthorized Occupants in your unit, and for Disturbance of neighbors. Management received several calls of complaints about your guests.

"On or about July 28, 1992, you were issued a Lease Violation Notice from the Management Office for Disturbance of Neighbors, Unauthorized Occupants and possible illegal activities coming from your unit.

"On June 3, 1992, you were issued a Lease Violation Notice from the Management Office for Disturbance of your neighbor[s'] peaceful enjoyment.

"On or about January 15, 1992, a Judgment Entry was signed in Housing Court case No. # [sic ] 91-CVG-31651 stating that, you would remove Unauthorized persons from your unit.

"These incident(s) constitute a violation of your Dwelling Lease, Article 9, Sections A, B, D, N O [sic ] and P which reads [sic ] as follows:

"(A) Not to provide accommodations for boarders or lodgers.

"(B) Not to assign the lease or to sublease the premises.

"(D) To use the premises solely as a private dwelling for Resident and Resident's household, as identified in accordance with the provisions of Section 1, and not to use or permit its use for any other purpose.

"(N) To conduct himself/herself, and cause other persons who are on the premises with the consent of Resident or members of his/her household to conduct themselves, in a manner which will not disturb his/her neighbors' peaceful enjoyment of their accommodations and will be conducive to maintaining the estate in a decent, safe and sanitary condition.

"(O) To refrain from illegal or other activity which impairs the physical or social environment of the estate.

"(P) In addition to the foregoing Subsections A through O, Resident and members of his/her household, or a guest or other persons under the Resident's control, shall not engage in criminal activity including, but not limited to, drug-related activity on or near public housing premises, while Resident resides in public housing and such criminal activity shall be cause for termination of tenancy. * * *

"Because of this violation(s), CMHA is exercising its right to refuse rent payments from you pending this eviction action as provided for in Article 3, Section D of your dwelling lease. This puts you in violation of Section 3, Section B of your dwelling lease for nonpayment of rent. * * * "

After the scheduled conference of September 9, 1992 with CMHA management, Younger was served on October 5, 1992 with a three-day notice to vacate the premises. Younger did not vacate the premises, leading to the filing of CMHA's complaint in forcible entry and detainer.

The complaint contained all of the information set forth in the attachment to the September 4, 1992 "Notice of Termination and Invitation to Explain." It also presented two causes of action, one for unlawful possession of the premises, and the other for unpaid rent.

Younger filed a motion to dismiss and/or for summary judgment on December 18, 1992. She premised the motion on CMHA's alleged failure to afford her due process by identifying specific instances of conduct which caused the termination of her lease. CMHA's failure to supply this information, according to Younger, was a violation of Section 966.4(l )(3)(ii), Title 24, C.F.R.

The trial court issued its judgment on February 24, 1992 granting Younger's motion to dismiss. The court initially recognized that the purported grounds for termination were located in the September 4, 1992 notice of termination as set forth supra. It then concluded:

"[T]he above grounds are not 'specific grounds' in that they do not refer to the dates of claimed violations, descriptions of specific events that are claimed violations, and the names of the individuals involved in the claimed violations (at least in as far as plaintiff can determine the names).

"Thus the required notice of lease termination fails. Plaintiff's service of Ohio Revised Code 1923.04 Notice to Vacate prior to expiration of tenancy is improper service, and thus this court lacks jurisdiction over this action. Defendant's motion to dismiss is granted."

This appeal followed with CMHA claiming as error ¹:

"I. The trial court erred when it granted the defendant's motion to dismiss and/or for summary judgment, because the tenant failed to exhaust administrative remedies.

"II. The trial court erred when it ruled that the notice of termination did not identify 'specific grounds' sufficient to satisfy due process requirements to allow the defendant to prepare a defense. The notice of termination answers each of the six general interrogatories who, what, where, when, why and how.

"III. The trial court's ruling is in error as impermissible judicial activism.

"IV. The trial court committed prejudicial error when it granted the motion to dismiss."

In its first assignment of error, CMHA charges that Younger should have either (1) attended the informal meeting with management; (2) filed a grievance under Section 966.4(l )(3)(iv), Title 24, C.F.R.; or (3) requested to examine relevant documents pursuant to Section 966.4(m), Title 24, C.F.R. CMHA argues, therefore, that Younger was not entitled to have the complaint dismissed based upon insufficient notice because she did not use the administrative process to challenge the insufficiency.

CMHA's suggestion that the trial court herein acted improperly because "the Code of Federal Regulations, which governs eviction actions, and administrative law generally, are designed to weed out cases which can be resolved outside the trial court setting" is a curious one. Furthermore, CMHA finds fault with the trial court's placing "itself as the only arbiter of justice" because "then there is really no purpose to alternative dispute resolutions and the already over-burdened caseload of the Court system will only increase." This court is thus perplexed by appellant's first assignment of error, since it was CMHA which filed the forcible entry and detainer action, and it was CMHA which asked the trial court to be the "arbiter of justice."

Assuming arguendo there is any merit in CMHA's contention, this court is without authority to review this assignment of error. First, the record is silent as to how Younger reacted to the September 4, 1992 notice of termination; we do not know if she attended any meetings with CMHA management. Second, CMHA did not file a response to Younger's motion to dismiss and/or for summary judgment, and, consequently, did not submit an argument in the trial court relating to Younger's failure to exhaust administrative remedies. Errors not brought to the attention of the trial court are waived for purposes of appeal when the error could have been avoided or corrected by the court. See State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364; First Fed. S. & L. Assn. of Akron v. Cheton & Rabe (1989), 57 Ohio App.3d 137, 567 N.E.2d 298.

CMHA's first assignment of error is overruled.

For its second assignment of error, CMHA submits that the trial court erred in concluding that the notice of termination failed to contain specific instances of conduct which adequately notified Younger of the cause for termination of her lease. CMHA counters the trial court's conclusion by arguing that the notice did advise Younger of when the alleged violations occurred and the alleged violations themselves. However, CMHA maintains that to identify who was involved in the alleged violations would cause an undue financial burden on CMHA, its tenants and taxpayers in general.

CMHA partially relies on the trial court's entry in case No. 91-CVG-31651 in support of its argument that the notice of termination impliedly informed Younger of all of the information necessary to prepare a defense. In other words, this entry in combination with the September 4, 1992 notice of termination, according to CMHA, met the...