Taylor v. Gill Street Investments

• Decision Date: 02 October 1987
• Docket Number: No. S-1203,S-1203
• Citation: 743 P.2d 345
• Parties: Richard TAYLOR, Appellant, v. GILL STREET INVESTMENTS, Appellee.
• Court: Alaska Supreme Court

Page 345

743 P.2d 345

Richard TAYLOR, Appellant, v. GILL STREET INVESTMENTS, Appellee.

No. S-1203.

Supreme Court of Alaska.

Oct. 2, 1987.

Richard Taylor, pro se.

Peter F. Mysing, Kenai, for appellee.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

RABINOWITZ, Chief Justice.

I. BACKGROUND.

Gill Street Investments ("Gill Street") owns a Kenai low-income housing complex called the Gill Street Apartments. Richard Taylor resided there from December 1984 until he was evicted on July 12, 1985.

Taylor was personally served with a notice of termination of tenancy on June 4, 1985. The notice stated that Taylor had breached the rental agreement because he did not keep his apartment in a clean and safe condition, he did not properly dispose of garbage, and he unreasonably disturbed his neighbors' peaceful enjoyment of the premises. The notice directed him to vacate his apartment on or before June 14, ten days after his receipt of the notice.

Taylor did not move by June 14, and Gill Street filed a complaint for forcible entry and detainer on June 19. On June 28, the parties appeared at a hearing, but the case was not tried that day due to scheduling problems of the superior court and Taylor's attorney. Those problems caused the attorney to withdraw from the case, which was then continued until July 2 to allow Taylor time to obtain substitute counsel. ¹

Taylor appeared without counsel at the July 2 hearing. He asked the court for a continuance until his attorney returned from vacation. The court granted a one-day continuance on the condition that Taylor pay a $300 sanction to cover the expenses incurred by Gill Street in preparing for the aborted hearing.

On July 3, Taylor again appeared without counsel. The court proceeded to try the case. Gill Street presented testimonial evidence that Taylor's apartment badly needed cleaning and exuded a very bad odor. Taylor essentially admitted that he left his drapes open when he walked around his apartment (which is near the children's play area) in the nude. There was evidence that Taylor refused to move his car to permit parking lot snow removal when requested to do so, and that he would sit in the parking lot blowing his horn for an extended period of time if his parking place was occupied. Several witnesses testified that Taylor was frequently seen intoxicated, and that they had observed him driving in this condition. One tenant specifically testified that he was concerned about his children's safety due to Taylor's driving while intoxicated, and another testified that he had seen Taylor hit a parked car while intoxicated. Another tenant recounted an incident in which a drunk guest of Taylor frightened her by walking into her apartment uninvited and yelling at her children because they were making too much noise.

Based on its findings of fact and conclusions of law, the court entered a writ of eviction ordering Taylor to leave the premises by July 12. This appeal followed.

II. DISCUSSION.

A. Did the Notice of Termination of Tenancy Meet the Time Requirements of AS 34.03.220(a)?

Gill Street argues that Taylor's appeal is moot because he vacated the premises in accordance with the writ of eviction entered by the superior court. Taylor counters that the appeal falls within the public interest exception to the mootness doctrine.

Ordinarily we will not decide questions of law where the facts render the legal issues moot. However, we will consider a moot issue if it falls within the public interest exception to the mootness doctrine. The three factors in determining whether the public interest exception applies are (1) whether the disputed issues are capable of repetition, (2) whether application of the mootness doctrine will repeatedly circumvent review of the issues, and (3) whether the issues are of important public interest. Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985). Ultimately, the determination whether to address an issue which is technically moot rests in the discretion of this court. Id.; Witt v. Watkins, 579 P.2d 1065, 1071 n. 19 (Alaska 1978).

In our view this appeal is technically moot because Taylor has already vacated the premises in question. Furthermore, Taylor waived his right to claim damages for Gill Street's alleged abuse of access in inspecting his apartment by failing to assert it below. See Hill v. Ames, 606 P.2d 388, 390 (Alaska 1980); Brown v. Wood, 575 P.2d 760, 766 (Alaska 1978), modified, 592 P.2d 1250 (Alaska 1979). Nevertheless, we agree with Taylor that the issue of whether a landlord must strictly comply with the notice-time provision of AS 34.03.220(a) ² falls within the public interest exception to the mootness doctrine. ³

On the merits, Taylor argues that Gill Street's complaint was invalid because the notice of termination of tenancy was defective. The notice Taylor received specified that the tenancy would terminate in ten days rather than the twenty days allotted by AS 34.03.220(a). Had the notice complied with the statute, Taylor would have had until June 14 to remedy the breaches and until June 24 to vacate. The trial court concluded that the defect was immaterial because Taylor was still occupying the premises on June 28 when an inspection revealed that Taylor had not remedied the breaches. Gill Street concedes that the notice was technically defective but contends that the case was nevertheless properly tried.

Under AS 34.03.220(a), if a tenant materially breaches the rental agreement or AS 34.03.120, ⁴ the landlord may deliver notice to the tenant detailing the breach and terminating the tenancy on a specific date not less than twenty days from delivery of the notice. See supra note 2. The tenancy terminates on the date specified in the notice unless the tenant remedies the breach in ten days. Id. If, however, the breach is not "remediable by repairs or the payment of damages or otherwise," the landlord is not prohibited by the state from evicting the tenant. Osness v. Dimond Estates, Inc., 615 P.2d 605, 609 (Alaska 1980).

In our view several violations of the rental agreement specified in the notice of termination were of this irremediable character. This leads us to conclude that the deficiency in the notice was immaterial because Taylor could not have remedied those breaches had notice been proper. ⁵

The notice served on Taylor stated in part that he had breached the provisions of his rental agreement which required him, "[n]ot [to] permit a nuisance" and to "[c]onduct [himself] ... and require other persons on the premises with [his] consent to conduct themselves in a manner that will not unreasonably disturb a neighbor's peaceful enjoyment of the premises." It separately stated that he had violated the condition that "[t]enants must conduct themselves in a manner that does[ ]not unreasonably disturb their neighbors' peaceful enjoyment of the premises." Taylor has contradicted the evidence presented by Gill Street, detailed at the outset of this opinion, which indicates that he has indeed unreasonably disturbed his neighbors' enjoyment of the premises. Taylor's behavior--specifically his unnecessary creation of excessive noise, his failure to prevent an intoxicated guest from frightening and intruding upon the privacy of other tenants, his displays of nudity, and his unsafe driving habits--cannot alleviate the annoyance and fear which his neighbors have suffered and undoubtedly continue to suffer even if similarly threatening and offensive incidents have not recurred. See Osness, 615 P.2d at 609.

In our view, the instances of conduct by Taylor recounted by Gill Street's witnesses reflect violations of the rental agreement which "have left their indelible imprint on the atmosphere of the neighborhood," id. at 610, and Taylor could not have made satisfactory restitution for them regardless of the period of time specified in the notice of termination. Consequently, the landlord's failure to comply with the statutory notice-time requirements offers Taylor no avenue of redress.

B. Did the Superior Court Abuse Its Discretion in Denying Taylor the Requested Continuance?

Taylor argues that the trial court abused its discretion by failing to grant a continuance until his attorney returned from vacation. Gill Street contends that the court acted within its discretion.

The forcible entry and detainer cause of action is a creature of statute designed "to preserve the peace by providing a speedy method to resolve disputes over the possession of real property." McDowell v. Lenarduzzi, 546 P.2d 1315, 1317-18 (Alaska 1976) (footnote omitted). The court may not grant a continuance longer than two days, Alaska R.Civ.P. 85(a)(3), ⁶ or in the absence of a showing of good cause. ⁷ The date set for trial is ordinarily within fifteen days of the filing of the complaint. See Alaska R.Civ.P. 85(a)(2).

The decision whether to grant a continuance ultimately rests in the discretion of the trial court. Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973). That discretion is abused if a party is deprived of a substantial right or is severely prejudiced because of the refusal to grant a continuance. Id. A party is not automatically entitled to a continuance when counsel withdraws, especially if the party is not free from fault or does not use due diligence to obtain substitute counsel. Id. Absent unusual circumstances, we will not substitute our judgment for that of the trial court in determinations involving diligence of parties or counsel. Adams v. Cowan, 360 P.2d 1013, 1014 (Alaska 1961).

Here the superior court twice continued the trial of this case to allow Taylor to obtain substitute counsel. The court specifically informed Taylor that no further continuances would be granted and that he would have to represent himself if he did not appear with an attorney on July 3. Although the court made no express finding as to whether Taylor attempted with due diligence to obtain substitute counsel, it...