Gorman v. Ratliff, 85-322

• Decision Date: 30 June 1986
• Docket Number: No. 85-322,85-322
• Citation: 712 S.W.2d 888,289 Ark. 332
• Parties: Johnny GORMAN et ux, Appellants, v. Russell RATLIFF, Appellee.
• Court: Arkansas Supreme Court

Page 888

712 S.W.2d 888

289 Ark. 332

Johnny GORMAN et ux, Appellants, v. Russell RATLIFF, Appellee.

No. 85-322.

Supreme Court of Arkansas.

June 30, 1986.

Central Arkansas Legal Services by James B. DePriest, Pine Bluff, for appellants.

Bridges, Young, Matthews, Holmes & Drake, by Michael J. Dennis, Pine Bluff, for appellee.

HOLT, Chief Justice.

This landlord/tenant case requires interpretation of the Forcible Entry and Detainer statutes, Ark.Stat.Ann. §§ 34-1501--34-1512 (Supp.1985). Because we are being asked to interpret an act of the General Assembly, our jurisdiction is pursuant to Sup.Ct.R. 29(1)(c).

The appellants, Johnny and Mary Gorman, were tenants of the appellee, Russell Ratliff. The appellants admit that they became delinquent in their rent payments and that the appellee asked them to vacate the premises. Before they did so, Ratliff entered the rental house while the appellants were not at home and removed all of their personal property. Ratliff then stored the property, which included a refrigerator, stove, beds, childrens' toys, a bassinet, personal papers, and other items. The appellants filed suit against Ratliff claiming his actions constitute a wrongful and constructive eviction, and a wrongful conversion of property.

Ratliff filed an answer and counterclaim in which he claimed that appellants had violated the terms of the lease agreement between the parties. Ratliff relied on provisions in the lease permitting him upon nonpayment of rent to enter the property and store all personal property left at the leased premises. The lease also provided that if the charges are still unpaid after 30 days, the stored property can be sold to satisfy the rent arrearage.

In an amended complaint, appellants alleged that Ratliff's actions constitute a forcible entry and detainer. To the extent that appellee's actions were in accordance with the terms of the lease, appellants claim the lease is illegal, unconscionable and against public policy.

The parties stipulated that the lease was entered into on November 30, 1984, that Ratliff and not appellants has had possession of the premises since April 23, 1985, and that Ratliff has had possession of appellants' personal property since then, and that no judicial order has been entered granting possession of the personal property to Ratliff.

The trial court ruled, after a preliminary hearing on appellants' motion for relief pendente lite that, pursuant to the lease contract, Ratliff had a right to peaceable repossession of the premises and a lien on the personal property found therein. After a trial, the court denied appellants' claim and awarded Ratliff $528 on his counterclaim, that amount representing unpaid rent and moving, storing, and cleaning expenses. The court further found that the lease conforms to all applicable Arkansas law. We disagree and reverse the trial court's order.

The lease provided in pertinent part:

10. Any violation of any provision of this lease by any of the lessees, or any person on the premises with the lessee's consent, or any failure to pay rent upon the date due, shall result, at the option of the lessor, in the immediate termination of this lease without notice of any kind, and lessor may thereupon enter said premises and take and retain possession thereof and exclude lessees therefrom.

12. If lessees leave said premises unoccupied at any time while rent is due and unpaid, lessor may, if desired, take immediate possession thereof and exclude lessee therefrom, removing and storing at the expense of said lessees all property from contained therein.

14. The lessor shall have the lien granted by law all baggage and other property of lessees for their rent, accomodation and services, and the lessees hereby grant to lessor a lien upon all personal property brought into said premises, regardless of any provisions of law or whether or not the apartment is furnished, and lessor may enforce said lien as provided by law or by entering said premises and either taking possession thereof and the belongings contained therein for safekeeping, or by removing said property therefrom and storing the same at the expense of the lessees. Said lien may be enforced whenever rent is due and unpaid and regardless of whether or not a three (3) day notice to pay rent or quit shall have been served, and enforcement of the lien shall not operate to waive any other rights of the lessor in unlawful detainer or otherwise. If rent is still due and unpaid thirty (30) days after the enforcement of said lien, then the lessor may sell any or all personal property taken possession of as herein provided, and may apply any monies received against the unpaid rent,....

In Act 615 of 1981 the legislature revised the statutes describing the cause of action for forcible entry and detainer and unlawful detainer and prescribing the procedure for carrying out the rights and remedies of the affected parties. The legislature did so because it found the former statutes were in need of clarification and revision and it was in the best interest of the people that "an additional procedure be specifically prescribed for the enforcement of the rights of parties ..." Ark.Stat.Ann. § 34-1501 (Supp.1985). That additional procedure afforded persons affected by the legislation an opportunity to be heard on legitimate objections to writs of possession, Id. At the outset, therefore, the legislature evinced a desire to extend additional protection to parties in possession of property before that property could be taken from them, as well as to provide for procedures to expedite the removal of parties who are unlawfully in possession of property.

Section 34-1503 defines those acts that will constitute a forcible entry and detainer as follows:

If any person shall enter into or upon any lands, tenements or other possessions and detain or hold the same without right or claim to title, or who shall enter by breaking open the doors and windows or other parts of the house, whether any person be in or not, or by threatening to kill, maim or beat the party in possession or by such words and acts as have a natural tendency to excite fear or apprehension of danger or by putting out of doors or by carrying away the goods of the party in possession, or by entering peaceably and then turning out by force or frightening by threats or other circumstances of terror the party to yield possession, in such cases every person so offending shall be deemed guilty of a forcible entry and detainer within the meaning of this Act.

Included in this list is the action taken by the landlord in this case: "carrying away the goods of the party in possession". Appellee asks us to read this statute as prohibiting only people "without right or claim to title" from carrying away the goods of the party in possession. We do not find his position persuasive however. In this statute, the legislature has embodied guidelines of prohibited conduct, any one of which constitutes a forcible entry and detainer within the meaning of the Act, thus giving protection to appellants.

In addition to delineating prohibited conduct, the legislature provided a remedy for landlords with holdover tenants and others guilty of forcible entry and detainer and unlawful detainer. Once a party is unlawfully in possession of property, the person with a cause of action under this Act may file a complaint and an affidavit in circuit court and the complaint will then be served on the defendant with a notice of intention to issue a writ of possession. § 34-1507. If the defendant does not respond within five...