S.B. Partnership v. Gogue, 19789

CourtSupreme Court of South Dakota
Citation562 N.W.2d 754,1997 SD 41
Docket NumberNo. 19789,19789
PartiesS.B. PARTNERSHIP, d/b/a Canyon Lake Plaza Estates, Plaintiff and Appellee, v. Vernaline GOGUE, Defendant and Appellant.
Decision Date07 May 1997

Page 754

562 N.W.2d 754
1997 SD 41
S.B. PARTNERSHIP, d/b/a Canyon Lake Plaza Estates, Plaintiff
and Appellee,
Vernaline GOGUE, Defendant and Appellant.
No. 19789.
Supreme Court of South Dakota.
Argued Feb. 19, 1997.
Decided April 16, 1997.
Rehearing Denied May 7, 1997.

James F. Margadant of Seiler & Margadant Law Firm, Rapid City, for plaintiff and appellee.

Scott D. McGregor of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for defendant and appellant.


¶1 Vernaline Gogue was evicted from an apartment owned by S.B. Partnership d/b/a Canyon Lake Plaza Estates. Her federally subsidized lease required written notice containing specific grounds for termination. Are state court eviction proceedings sufficient

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to provide the notice and due process protections required by federal law? We conclude the state unlawful detainer action fulfilled federal mandates because the amended complaint set forth adequate grounds, and Gogue was afforded a hearing before eviction.


¶2 Gogue and Canyon Lake entered into a lease agreement on January 3, 1994, and a lease addendum on February 7, 1994, both pursuant to the Section 8 Housing Certification Program of the Department of Housing and Urban Development (HUD), which provided rental assistance to Gogue. 42 USC § 1437f. Pennington County Housing and Redevelopment Commission, the local Public Housing Authority (PHA) for HUD, administered the program and certified individuals to receive assistance.

¶3 Under this lease, Gogue and her family lived in an apartment in the multi-unit Canyon Lake Plaza Estates in Rapid City. The total monthly rent was $520, with Gogue being responsible for $351. PHA paid the remainder. The lease was for an indefinite term, as the addendum provided:

The term of the lease shall begin on January 3, 1994, and shall continue until: (1) a termination of the Lease by the Landlord in accordance with paragraph (H) of this section, (2) a termination of the Lease by Tenant in accordance with the Lease or by mutual agreement during the term of the Lease, or (3) a termination of the Housing Assistance Payments Contract by the PHA.

Canyon Lake was empowered to terminate the lease under the dictates of paragraph H of the addendum, which stated:

(1) The Landlord shall not terminate the tenancy except for:

(i) Serious or repeated violation of the terms and conditions of the Lease;

(ii) Violation of Federal, State, or local law which imposes obligations on a tenant in connection with the occupancy or use of the dwelling unit and surrounding premises; or

(iii) Other good cause. However, during the first year of the term of the lease, the Landlord may not terminate the tenancy for "other good cause" unless the termination is based on malfeasance or nonfeasance of the Tenant Family.

(2) The following are some examples of "other good cause" for termination of tenancy by the Landlord:

(i) Failure by the Tenant Family to accept the offer of a new Lease in accordance with paragraph (K) of this section;

(ii) A Tenant Family history of disturbance of neighbors or destruction of property, or of living or housekeeping habits resulting in damage to the unit or property;

(iii) Criminal activity by Tenant Family members involving crimes of physical violence to persons or property;

(iv) The Landlord's desire to utilize the unit for personal or family use or for a purpose other than a use as a residential rental unit; or

(v) A business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, desire to rent the unit at a higher rental).

This list of examples is intended as a non-exclusive statement of some situations included in "other good cause" but shall in no way be construed as a limitation on the application of "other good cause" to situations not included in the list. The Landlord may not terminate the tenancy during the first year of the Lease for "other good cause" (see paragraph (H)(1)(iiv)[sic] for the grounds stated in paragraph (H)(2)(i), (H)(2)(iv) of this section. [sic]

On December 7, 1994, Canyon Lake wrote Gogue informing her of its intent not to renew the lease as of January 31, 1995. Given the language of the lease addendum which provided for an indefinite term, however, the lease would not expire on that date.

¶4 On January 9, Canyon Lake notified Gogue a second time, by letter taped to her door, that as of January 31, 1995, her lease would be terminated. Neither this letter, nor the December letter, gave reasons for Canyon Lake's decision. Later Canyon Lake revealed it had several reasons for non-renewal. One was that, during 1994, it secured

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extensive financing to renovate the entire structure, so all leases were gradually being terminated. In addition, Canyon Lake received complaints from other tenants about the loud and disorderly behavior of Gogue's children. The police were called to the complex in one instance, when one of her children was in an altercation with another child who had a knife. At one point, she permitted a 100-pound bag of potatoes to rot in her kitchen, prompting neighbor complaints about the stench. She had also been late in rental payments and was responsible for damage to the property, including the door to the apartment which, due to the activities of her children, was off its hinges.

¶5 Despite the termination notices, Gogue continued to live at Canyon Lake, because the lease term was continued on a month-to-month basis. On February 27, she was advised through her attorney her lease would not be continued past April 1, 1995. On April 11, Canyon Lake served on Gogue a three-day notice to vacate and, after she failed to move out, commenced an unlawful detainer action on April 17th pursuant to SDCL 21-16, et seq. By stipulation, Canyon Lake was allowed to amend its complaint to include the following:

Plaintiff did not offer to renew Defendant's lease on the premises due to Plaintiff's plans to remove the apartment from its rental units to undertake renovations, because of the complaints Plaintiff had received concerning the conduct of Defendant's children, and because of Defendant's failure or neglect in maintaining the rental premises.

¶6 At trial, the magistrate found the eviction was proper on the grounds Canyon Lake was undertaking renovations and because the problems with Gogue's tenancy constituted "good cause." On appeal, the circuit court held Canyon Lake failed to give due notice to Gogue under federal law, as the two letters sent to her included no reasons for terminating her lease. However, the court found the specificity of the amended complaint cured the notice deficiencies. It also ruled a lease termination for renovation requires a ninety day notice under federal law, a requirement not met here. Accordingly, the magistrate's decision on that ground was error. On the other hand, the circuit court agreed the other problems with Gogue's tenancy were enough to constitute "good cause." Noting that HUD regulations merely dictate that landlords give notice according to state and local law, the court found the notice period and grounds for termination sufficient.

¶7 Gogue appeals, offering two issues for our consideration: (1) whether the notices given her were legally sufficient, and (2) whether Canyon Lake had good cause to terminate her tenancy.

Standard of Review

¶8 We give no deference to the circuit court's conclusions of law, as we review those decisions under a de novo standard. Central Monitoring Serv. v. Zakinski, 1996 SD 116, p 17, 553 N.W.2d 513, 517 (citing Centrol, Inc. v. Morrow, 489 N.W.2d 890, 893 (S.D.1992)). Conversely, we review findings of fact under the more lenient clearly erroneous standard. Shedd v. Lamb, 1996 SD 117, p 17, 553 N.W.2d 241, 244. We will not overturn fact findings unless we are definitely and firmly convinced a mistake has been made. Cordell v. Codington County, 526 N.W.2d 115, 116 (S.D.1994).


¶9 The Section 8 rental assistance program is part of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974, 42 USC § 1437 et seq. In Arnold Murray Constr. v. Wittrock, we highlighted the purpose of this program:

Congress has declared it the policy of the United States "to promote the general welfare of the Nation by employing its funds and credit ... to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income[.]" 42 USCS § 1437.

487 N.W.2d 33, 36 (S.D.1992). Several programs, including those with public and private housing rental assistance supplements,

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are encompassed in § 1437, each carrying different notice and hearing requirements.

¶10 Gogue argues the notice given her was insufficient in both content...

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