Providence Hill, LLC v. Ndzanga
| Decision Date | 09 July 2021 |
| Docket Number | NO. 2020-CA-0503-MR,NO. 2020-CA-0575-MR,2020-CA-0503-MR,2020-CA-0575-MR |
| Parties | PROVIDENCE HILL, LLC APPELLANT v. DAMIEN NDZANGA APPELLEE AND DAMIEN NDZANGA CROSS-APPELLANT v. PROVIDENCE HILL, LLC CROSS-APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM BOYD CIRCUIT COURT
Providence Hill, LLC ("Providence Hill") appeals from the March 27, 2020 judgment of the Boyd Circuit Court granting Damien Ndzanga ("Ndzanga") damages for the fair market value of his personal property. Ndzanga cross-appeals from the same judgment awarding Providence Hill damages for unpaid rent and fees. After careful review, we affirm.
Ndzanga initiated this action for return of, or monetary damages for, his personal property and security deposit. Providence Hill filed a counter-claim for damages in the amount of two months' unpaid rent and an early termination fee. A bench trial was held on February 3, 2020. The trial court heard testimony from Ndzanga; Stacy Cooper, an auctioneer; a representative of Providence Hill; and a Boyd County sheriff's deputy.
Ndzanga signed a residential lease with Providence Hill in August 2017. He paid a security deposit in the amount of $870.00 and agreed to pay the same amount each month in rent. The lease was for a term of one year and included a provision allowing Ndzanga to terminate the lease early by providing Providence Hill thirty days' notice in writing and paying an early termination feeequal to one month's rent. The lease also included a provision prohibiting oral modification of the contract.
Due to a change in employment, Ndzanga vacated the apartment in early 2018. He failed to pay rent in February or March 2018. He testified to speaking to Providence Hill's rental agent prior to leaving. He claimed to have notified her he would be gone during February 2018 and would return in mid-March 2018 to remove his personal property from the apartment. Ndzanga believed, based on his conversation with the rental agent, he would be able to terminate his lease early without penalty and his security deposit would cover one month of unpaid rent. The property which remained in the apartment included two sofas; a king-sized bed frame, mattress, and box springs; a dining room table with four chairs; a chest; a four-drawer dresser; and a mirror.
Based on Ndzanga's failure to pay rent, Providence Hill filed an action for forcible detainer in the Boyd District Court. Providence Hill prevailed, and a writ of possession was entered by the district court. The deputy sheriff executed the writ of possession by accompanying a representative of Providence Hill to the apartment to ensure no one unlawfully remained on the premises. According to his testimony, after completing a walkthrough, the deputy sheriff left the property. He did not remove Ndzanga's personal property from the apartment nor did he assist the representative from Providence Hill in doing so.
Ndzanga returned to the apartment in mid-March 2018, after the writ of possession had been executed. He then requested Providence Hill return his personal property. Providence Hill did not return the furniture and provided no explanation of what had been done with it. Providence Hill's representative testified its standard procedure for disposing of a former tenant's personal property was to remove the property from the apartment and set it on the sidewalk. Once personal property is set out, anyone may take it, or it may be placed in the trash. Providence Hill kept no record of what personal property was left in any apartment or whether it disposed of such property upon execution of a writ of possession.
At trial, Cooper testified to the fair market value of Ndzanga's furniture. He was given photographs Ndzanga had taken of the furniture. Cooper testified the furniture was valued at $21,963.00 in new condition. Because Ndzanga owned the furniture for approximately one year before he lost possession of it, Cooper reasoned a twenty percent reduction in value was appropriate. Taking into consideration this reduction, Cooper determined the fair market value of the furniture was $17,570.40.
The trial court found, based on evidence presented at trial, Ndzanga violated the terms of the lease agreement by failing to pay rent and erroneously assuming his security deposit would cover his unpaid rent. The court found, because the lease agreement prohibited oral modifications, Ndzanga's allegedconversations with Providence Hill's rental agent did not alter its terms. On this basis, the trial court granted Providence Hill a judgment against Ndzanga in the amount of $2,610.00 for two months of unpaid rent and the unpaid early termination fee, as well as one-third of its costs and interest at the judgment rate until paid.
The trial court further found Providence Hill committed conversion of Ndzanga's personal property. Relying on Ky. OAG1 82-553, the court found "[t]he person receiving property has an obligation not to destroy someone else's property without contractual ability or other agreement to do so." Record ("R.") at 149-50. The court deemed it inequitable that Providence Hill disposed of the furniture without documenting it or providing Ndzanga notice. The court then imposed a constructive trust because of Providence Hill's "unconscionable conduct." Id. at 150-51. The trial court awarded Ndzanga damages in the amount of $17,570.40 and two-thirds of his costs with interest at the judgment rate until paid.
No post-judgment motions were filed by either party. This appeal and cross-appeal followed.
"We review questions of law de novo and, thus, without deference to the interpretation afforded by the [trial] court." Marshall v. Kentucky Farm Bureau Mutual Insurance Company, 618 S.W.3d 499, 502 (Ky. App. 2020) (internal quotation marks and citation omitted). Where a trial court sits without a jury, "its factual findings shall not be set aside unless clearly erroneous[.]" Cole v. Gilvin, 59 S.W.3d 468, 472 (Ky. App. 2001) (internal quotation marks and citation omitted). "A factual finding is not clearly erroneous if it is supported by substantial evidence." Id. at 472-73 (citation omitted). "[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Id. at 472 (internal quotation marks and citation omitted).
Before reaching the merits of this appeal, we must address Providence Hill's failure to comply with the briefing requirements of CR2 76.12. An appellant's brief must include "at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." CR 76.12(4)(c)(v). "It is not the function or responsibility of this court to scour the record on appeal to ensure that an issue hasbeen preserved." Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019) (citation omitted). Providence Hill's brief is devoid of preservation statements.
"Compliance with CR 76.12 is mandatory." Petrie v. Brackett, 590 S.W.3d 830, 835 (Ky. App. 2019) (citation omitted). "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions . . .; or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation omitted). Because Providence Hill's arguments fail on the merits, we will ignore the deficiency and proceed with review of its claims. Counsel cannot be assured of such leniency if non-compliant in the future.
Turning to the merits of this appeal, Providence Hill first argues the trial court erred in imposing a duty for a landlord to keep and preserve a tenant's personal property. As part of this argument, Providence Hill contends: (a) the trial court's ruling is inconsistent with Kentucky law; (b) where other states have imposed such a duty, they have done so by statute; and (c) Providence Hill never received Ndzanga's property and so, had no duty to preserve it. Providence Hill further argues: (1) there was no fraud or breach of duty upon which to base the imposition of a constructive trust; (2) Ndzanga presented insufficient evidence of damages; and (3) Ndzanga's testimony regarding statements by the rental agentshould not have been admitted into evidence. On cross-appeal, Ndzanga alleges the trial court erred in granting Providence Hill a judgment against him for unpaid rent and fees.
First, Providence Hill argues the Uniform Residential Landlord and Tenant Act ("URLTA") does not impose any duty on landlords related to former tenants' personal property. However, Providence Hill fails to acknowledge that the URLTA is applicable only to the cities, counties, and urban-county governments which elect to enact it. KRS3 383.500. It is unclear from the record whether Providence Hill is located within the city limits of Ashland, Kentucky. However, Providence Hill has not identified nor has our research revealed, any ordinance by which the City of Ashland or the Boyd County Fiscal Court has adopted the URLTA. Therefore, the URLTA has no applicability to this action.
Furthermore, the trial court did not base its decision on any statute including the URLTA, but rather found Providence Hill committed the intentional tort of conversion. In reaching this decision, the trial court relied on Ky. OAG 82-553. While this Court is not bound by attorney general opinions, they are "highly persuasive." Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky. App. 2001) (footnote omitted).
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