Lomack v. Kohl-Watts, A-03-315.
| Decision Date | 02 November 2004 |
| Docket Number | No. A-03-315.,A-03-315. |
| Citation | 13 Neb. App. 14,688 N.W.2d 365 |
| Court | Nebraska Court of Appeals |
| Parties | Rosemarie LOMACK, appellant, v. Lela KOHL-WATTS, appellee. |
Theodore W. Vrana for appellant.
No appearance for appellee.
Rosemarie Lomack appeals an order of the district court for Lancaster County, Nebraska, which affirmed an order of the county court denying Lomack's request for attorney fees in an action brought pursuant to Neb.Rev.Stat. § 76-1416 (Reissue 2003) against Lomack's landlord, Lela Kohl-Watts. The county court awarded a return of Lomack's security deposit, but denied Lomack's request for attorney fees. On appeal, the district court determined that in an action for the return of security deposit, an award of attorney fees is discretionary; the district court then found that the county court was not clearly erroneous in denying Lomack's request for attorney fees. We find that if a party prevails in an action under § 76-1416(2) for the return of security deposit, § 76-1416(3) entitles that party to an award of attorney fees. However, in order to determine the amount of attorney fees to be awarded, sufficient evidence must be presented to prove the amount of fees to be awarded.
Lomack filed an action in county court on May 9, 2001, seeking a return of a $1,000 security deposit Lomack had paid to Kohl-Watts. A trial was held on June 18, 2002, and the county court ordered Kohl-Watts to pay Lomack $1,000 plus costs as a return of Lomack's security deposit. However, the court denied Lomack's request for attorney fees.
Lomack appealed the county court's denial of her request for attorney fees to the district court. The district court affirmed the county court's ruling, stating that § 76-1416, the statute under which Lomack prevailed for a return of her security deposit, did not mandate an award of attorney fees. The district court further held that because there was a "genuine dispute over whether [Lomack] had breached the lease," the county court's decision denying Lomack's request for attorney fees was not clearly erroneous.
This appeal now follows.
Lomack's only assignment of error is that the county court erred in failing to award her attorney fees.
Lomack argues that the county court erred in failing to award her attorney fees, because the Uniform Residential Landlord and Tenant Act required the court to award such fees. In support of her argument, Lomack cites to § 76-1416, which provides in pertinent part:
Lomack argues that when the county court determined that Kohl-Watts owed the security deposit to Lomack, the court was required to also award Lomack reasonable attorney fees. Kohl-Watts did not file a brief with this court.
We can find no Nebraska case law that has addressed whether the recovery of attorney fees under § 76-1416(3) is at the discretion of the trial court. However, in Hilliard v. Robertson, 253 Neb. 232, 570 N.W.2d 180 (1997), the Nebraska Supreme Court determined that a tenant was entitled to a return of her security deposit under § 76-1416(2), and the Supreme Court remanded the case for a determination of the tenant's attorney fees. Specifically, in Hilliard, the trial court determined that the tenant was entitled to a return of the security deposit, this court reversed that finding on the basis that the tenant had not properly demanded the deposit, and the Supreme Court determined that the tenant had in fact properly demanded the return of the deposit by filing against her landlord her counterclaim seeking return of the security deposit. After concluding that the tenant was entitled to a return of the security deposit, the Supreme Court stated:
[T]he Court of Appeals ... was incorrect in remanding the issue of the security deposit to the district court with directions to vacate. This cause is remanded to the Court of Appeals with directions to remand to the district court. The Court of Appeals is to direct the district court to affirm the judgment of the county court and to remand the case to the county court to determine the reasonable attorney fees to be awarded to [the tenant] under § 76-1416(3) because of the [landlord's] failure to return the security deposit.
Hilliard, 253 Neb. at 240, 570 N.W.2d at 185.
We read the Supreme Court's statement to indicate that § 76-1416(3), the provision permitting a tenant to recover reasonable attorney fees if a landlord fails to comply with § 76-1416(2), is not at the discretion of the trial court. If a tenant prevails in an action against a landlord for failure to return a security deposit as provided for under § 76-1416(2), the tenant is entitled to a return of the security deposit and reasonable attorney fees.
Furthermore, we find that other states have interpreted provisions similar to § 76-1416(3) in this same fashion. The Supreme Court of Ohio determined that a provision of Ohio's Revised Code nearly identical to § 76-1416(3) entitled the tenant to re-cover attorney fees if the tenant prevailed on the underlying claim that the landlord failed to properly return a security deposit owed to the tenant. See Smith v. Padgett, 32 Ohio St.3d 344, 513 N.E.2d 737 (1987). Specifically, the section at issue in Smith provided that if a landlord failed to return a security deposit owed to a tenant, then "`the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees.'" Id. at 348, 513 N.E.2d at 741. The Ohio Supreme Court held that where a landlord wrongfully withholds a portion of a tenant's security deposit, the landlord (Emphasis supplied.) Id. at 349, 513 N.E.2d at 742. The court further stated: Id.
Similarly, the Supreme Court of Vermont determined that a provision of the Vermont Residential Rental Agreements Act with similar wording to § 76-1416(3) entitled the tenant to recover attorney fees if the tenant prevailed on the underlying claims. See Bisson v. Ward, 160 Vt. 343, 628 A.2d 1256 (1993). The section at issue in Bisson provided the following: If a landlord failed to comply with habitability obligations, the tenant gave notice, the landlord failed to make repairs, and the noncompliance materially affected health and safety, then "the tenant may: ... (3) recover damages, costs and reasonable attorney's fees." 160 Vt. at 346, 628 A.2d at 1258. The Vermont Supreme Court stated that the legislature's use of the words "the tenant may recover" was not intended to give the court discretion in awarding attorney fees, but was to vest the discretion in the tenant to elect his or her remedies. The court then remanded the case for an award of attorney fees, as well as for a determination of another issue not pertinent to the case before us now.
The Courts of Appeals for South Carolina, Kansas, and Oregon have also held similarly. See, Prevatte v. Asbury Arms, 302 S.C. 413, 415, 396 S.E.2d 642, 643 (S.C.App.1990) (); Love v. Monarch Apartments, 13 Kan.App.2d 341, 344, 771 P.2d 79, 82 (1989) (); Beckett v. Olson, 75 Or.App. 610, 613-14, 707 P.2d 635, 637 ...
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