Tiller v. Yw Housing Partners, Ltd.

• Decision Date: 03 October 2008
• Docket Number: 2070417.
• Citation: 5 So.3d 623
• Parties: Dagmar TILLER v. YW HOUSING PARTNERS, LTD.
• Court: Alabama Court of Civil Appeals

5 So.3d 623

Dagmar TILLER v. YW HOUSING PARTNERS, LTD.

2070417.

Court of Civil Appeals of Alabama.

October 3, 2008.

Kenneth J. Lay and Stephanie C. Blackburn of Legal Services Alabama, Inc., Birmingham, for appellant.

Greggory M. Deitsch and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham, for appellee.

MOORE, Judge.

Dagmar Tiller appeals from a summary judgment entered by the Jefferson Circuit Court in favor of YW Housing Partners, Ltd. ("YW Housing").

On April 5, 2007, YW Housing filed a complaint against Tiller in the Jefferson District Court alleging a claim of unlawful detainer. Tiller answered the complaint, asserting, among other things, the affirmative defense of retaliatory eviction; Tiller also filed a counterclaim asserting retaliatory eviction. On April 30, 2007, YW Housing filed an answer to the counterclaim. On June 25, 2007, the district court entered a judgment in favor of YW Housing on the complaint and the counterclaim. On June 21, 2007, Tiller filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial.¹ On June 28, 2007, the district court noted that the parties had consented to extend the time for ruling on Tiller's postjudgment motion, pursuant to Rule 59.1, Ala. R. Civ. P. On July 10, 2007, the district court denied Tiller's postjudgment motion. On July 17, 2007, Tiller filed her notice of appeal to the Jefferson Circuit Court.

On August 16, 2007, YW Housing filed a motion for a summary judgment. That same day, YW Housing filed a motion to issue a writ of possession, alleging that Tiller had failed to pay money into the court pending the appeal of this case, as required by Ala.Code 1975, § 6-6-351. Tiller filed a response to the summary-judgment motion on August 28, 2007. On August 29, 2007, Tiller filed a motion for a reduction of bond, a motion for a stay, and a response to YW Housing's motion for a writ of possession.

On September 7, 2007, the circuit court entered a judgment stating, in pertinent part:

"1. This is an appeal by ... Tiller, to the Circuit Court from a judgment in favor of [YW Housing] for unlawful detainer.

"2. [Tiller], during the pendency of this appeal, has not paid any monies to the Clerk of the Circuit Court, as ascertained by the District Court judgment of June [25], 2007, to prevent the issuance of a writ of possession as set out in § 35-9A-461(d) Code of Alabama, 1975.

"3. [Tiller's] Motion for Reduction of Bond or Motion for Stay, in response to [YW Housing's] Motion for Writ of Possession, is without merit.

"4. That although [Tiller] has filed a counter-affidavit to [YW Housing's] Motion for Summary Judgment, the real issue in this case is a question of law and therefore proper under a Motion for Summary Judgment. The question of law is whether [Tiller] was occupying the premises under a written lease or under a tenancy at will.

"5. The initial lease between the parties, dated February 4, 2005, was a six (6) month lease ending by its terms on July 31, 2005. After the initial term, the lease attempts to create a month to month lease with no termination date. Pursuant to Womack v. Hyche, 503 So.2d 832 (Ala.1987), because the lease has no certain ending after the initial term, the lease became void and a tenancy at will was created. Therefore, the provisions of the lease, as argued by [Tiller] were no longer applicable at the time of the default of [Tiller] in failing to pay rent.

"6. On January 1, 2007, the Alabama Uniform Residential Landlord Tenant Act became effective and by its terms, Code of Alabama 1975, Title 35-9A-421(b) only a seven (7) day right to cure and termination notice is required.

"7. [YW Housing] complied with this provision, and [Tiller] failed to cure the default within the cure period.

"8. [YW Housing], having the right to terminate [Tiller's] tenancy at will, [YW Housing's] unlawful detainer was lawful and could not be in retaliation, as alleged by [Tiller] in her counterclaim.

"9. [Tiller] having failed to pay rent in the amount of $275.00 per month beginning March 2007 through August 2007, owes a total of $1,650.00.

"It is therefore ORDERED, ADJUDGED, AND DECREED by the Court as follows:

"1. [YW Housing's] Motion to Issue Writ of Possession is hereby GRANTED pursuant to § 35-9A-461(d)(1), Code of Alabama 1975.

"2. The Clerk of the Court is hereby Ordered to issue an immediate Writ of Possession, and any lawful Sheriff of the County of Jefferson is hereby ordered to restore to [YW Housing] possession of the real property situated in Jefferson County, Alabama, to wit:

"[Address of the property]

"3. [Tiller's] Motion for Reduction of Bond and Motion for Stay is hereby DENIED.

"4. [YW Housing's] Motion for Summary Judgment is hereby GRANTED, and judgment is entered in favor of [YW Housing] and against [Tiller] on the unlawful detainer.

"5. Judgment is hereby entered in favor of [YW Housing] and against [Tiller] on the money count and a money judgment is hereby entered in favor of ... YW Housing ... and against ... Tiller, in the amount of One Thousand Six Hundred Fifty and 00/100 ($1,650.00).

"6. [Tiller's] counterclaim is hereby DENIED."

On September 25, 2007, YW Housing moved the court to amend the judgment to waive the automatic stay provided under Rule 62(a), Ala. R. Civ. P. The circuit court granted that motion on September 25, 2007. On September 26, 2007, the circuit court issued a writ of execution.

On October 4, 2007, Tiller filed a motion to alter, amend, or vacate the circuit court's judgment or, in the alternative, for a new trial. YW Housing filed a response in opposition to that motion on October 23, 2007. The trial court denied Tiller's postjudgment motion on December 3, 2007.

On January 7, 2008, Tiller filed her notice of appeal with the Alabama Supreme Court; that court transferred the appeal to this court because it is within the original appellate jurisdiction of this court.

Facts

YW Housing submitted an affidavit of Bernetta Cox, the director of housing of YW Housing. She attested that Tiller and YW Housing had entered into a lease agreement ("the lease") for certain premises ("the premises"). The lease was executed on February 4, 2005, and provided, in pertinent part:

"This lease will be for an initial term of six months and will begin on February 4, 2005 and will end on July 31, 2005 or until terminated by either you [i.e., Tiller] or us [i.e., YW Housing] as provided in this lease. After the initial six-month term, the term of this lease shall be month to month.

"....

"A. After the first six months of the lease, you may terminate tenancy in the premises by giving 30 days written notice to us. If you do not give the full 30 days notice, you shall be liable for rent up to the end of the 30 days for which notice was required or to the date the unit is re-rented, whichever comes first.

"B. We may terminate this lease and if necessary evict you if:

"(1) You fail to move out of the premises on or before the effective date of termination given in the notice required above.

"(2) You materially breach the terms of this lease. A material breach means:

"a. nonpayment of rent or any other financial obligation under the lease after expiration of a 3-day pay or quit notice, or

"b. four or more late rent payments within any 12-month period received after the fifth day of the month, or

"c. failure to reimburse us within 30 days or other reasonable time agreed upon by you and us for repairs required to maintain the premises (Section 8 of this lease), or

"d. a breach resulting in damages to the premises or any other portion of the project or

"e. a breach which adversely affects the health, safety, or quiet enjoyment of any resident or visitor to the premises, or

"f. a breach which interferes with our responsibilities.

"(3) You fail to provide true, correct and complete information about household income and or assets as provided for in Section 4 of this lease.

"(4) You fail to fulfill the obligations of this lease.

"C. Any notice of termination or eviction shall contain a statement of the facts constituting the cause for the termination or eviction and statement of your rights."

An addendum to the lease, which was also executed on February 4, 2005, provided, in pertinent part:

"The premises are to be operated in accordance with the federal requirements of the low-income housing credit program. Tenant's rights hereunder will be subject to the requirements that must be met under the program in order for Landlord to qualify to take the cost of the premises into basis for calculation of Landlord's tax credit. Tenant will cooperate with all Landlord requirements related to such compliance and the Program."

Cox attested that Tiller had failed to pay rent and other charges beginning in March 2007. Therefore, YW Housing served Tiller with a seven-day notice dated March 16, 2007, that stated, in pertinent part:

"YOU ARE HEREBY NOTIFIED that in consequence of your default in nonpayment of rent for the premises ... I have elected to terminate your lease, and you are hereby notified to quit and deliver up possession of the same to me within 7 days of the date of this notice.

"YOU ARE FURTHER NOTIFIED that unless you pay the rent $290.00 in full or vacate the premises within SEVEN DAYS, [we] will institute legal proceedings to evict you from the premises. If payment has been made to your account, please forward me copies of your rental receipts."

(Emphasis omitted.) Cox further attested that Tiller had failed to vacate the premises and that she owed YW Housing $1,650 in unpaid rent and other charges.

Tiller attested in her affidavit that she had been current on her rent through the end of February 2007. Tiller attested that, at that time, she had "mentioned to the management of the premises that [she] might be moving, at which time the management deleted [her] from the computer system in which the rent is logged." She attested that when she...