Vogel v. Haynes, 59139

• Decision Date: 02 October 1986
• Docket Number: No. 59139,59139
• Citation: 11 Kan.App.2d 454,730 P.2d 1096
• Parties: Rhoda VOGEL, Appellee, v. William G. HAYNES, Appellant.
• Court: Kansas Court of Appeals

Page 1096

730 P.2d 1096

11 Kan.App.2d 454

Rhoda VOGEL, Appellee, v. William G. HAYNES, Appellant.

No. 59139.

Court of Appeals of Kansas.

Oct. 2, 1986.

Review Denied Dec. 18, 1986.

Syllabus by the Court

1. Under the Kansas Landlord and Tenant Act, K.S.A. 58-2550(b), a landlord may not retain a security deposit advanced by a tenant unless, within 30 days of the termination of the tenancy, he gives the tenant written notice of damages allowable under the rental agreement which includes damages sustained when the tenant cancels the tenancy before the contracted term.

2. While not specifically provided by statute, when an appellee successfully defends a judgment entered by a district judge, first appealed from a case tried under the Kansas Small Claims Procedure Act, K.S.A. 61-2701 et seq., and appealed thereafter to the appellate courts of this state, the appellee is allowed a reasonable attorney fee on the final appeal.

William G. Haynes, Topeka, appellant pro se.

Eric Kjorlie, Topeka, for appellee.

Before BRAZIL, P.J., TERRY L. BULLOCK, District Judge, Assigned, and FREDERICK WOLESLAGEL, District Judge Retired, Assigned.

FREDERICK WOLESLAGEL, District Judge Retired, Assigned:

Rhoda Vogel, appellee, a retired schoolteacher, rented living quarters from William G. Haynes, appellant, a practicing attorney. The lease was month to month but contained a provision that Vogel would keep the premises for one year. Before the end of one year, Vogel gave timely notice of termination and asked for the return of a security deposit she had advanced. Haynes refused the request without any written notice of damages he sustained by reason of Vogel's failure to comply with the one-year provision in the rental agreement.

Haynes lost in small claims court and lost in his appeal to district court. In the district court decision, Judge Macnish affirmed Vogel's judgment because of Haynes' failure to comply with the notice provision of K.S.A. 58-2550(b). The court also made findings of fact which are not disputed:

"1. On January 6, 1983, the Plaintiff entered into a written rental agreement with the Defendant which provided:

" '1. The Lessor hereby rents to Lessee and Lessee rents from Lessor, the premises known as Apartment No. 203. Lessor reserves and Lessee covenants and agrees to pay Lessor as rent, the sum of $195.00 per month on the first day of each month, unless written notice of adjustment is given thirty (30) days in advance.

" 'Lessee is taking possession of the premises on the 15 day of Jan., 1983. Lessee shall pay on the execution of the Agreement the sum of $______ as rent from the date of possession to the 1 day of Feb., 1983. On the first day of Feb., 1983, Lessee shall pay $195.00 as rent from the 1 day of Feb., 1983 to the 1 day of March, 1983. Thereafter, rent in the amount of $195.00 shall be due on the first day of each month.

" '2. Lessor may terminate this Agreement on the last day of any month by giving thirty (30) days prior notice in writing. Lessee may terminate this Agreement on the last day of any month by giving thirty (30) days prior written notice upon the following conditions.

" '3. The Lessee agrees to deposit with Lessor the sum of $110.00, the receipt of which is hereby acknowledged by cancelled check or receipt, as security to the Lessor for the performance of this Agreement, the return of any keys and equipment used, to Lessee, and for any damage to the premises, furnishings or equipment therein, except ordinary wear and use. The deposit shall be returned if in the Lessor's (Owner's) opinion all of the Lessee's (Renter's) obligations in this Agreement have been fulfilled on the termination of this Agreement and the Lessee (Renter) has remained for a minimum of one (1) year from the date that Lessee (Renter) paid the first full month rent under this Agreement. It is understood that the aforesaid deposit is not a prepayment of rent and Lessor (Owner) shall not be obligated (although it may do so at its option) to apply said deposit to any unpaid rent or any portion thereof.'

"2. On or about June 26, 1983, Plaintiff gave the Defendant notice that she intended to vacate apartment 203 in the Curtis Building on or before July 31, 1983.

"3. Plaintiff advised the Defendant that she had forwarded a money order comprising rent for the month of July to the property managers.

"4. Upon receipt of the Plaintiff's written notice terminating the tenancy, the Defendant did not provide the Plaintiff with a written itemization notifying her of damages suffered by any noncompliance with K.S.A. 58-2555 or the rental agreement, as required by K.S.A. 58-2550(b).

"5. The Plaintiff gave the Defendant a written request for the return of her security deposit.

"6. Plaintiff resided in the apartment for six months after signing the rental agreement.

"7. The Plaintiff's failure to remain in the apartment for a period of one year is the only reason the Defendant did not return the security deposit to the Plaintiff.

"8. The Plaintiff filed a Petition in November, 1983, in the Small Claims Court, well after thirty days from the date the Plaintiff terminated the tenancy, redelivered possession to the Defendant and requested the return of the security deposit.

"9. Defendant was served on December 5, 1983, notifying him of the pending action, docketed for December 28, 1983.

"10. On December 28, Defendant failed to appear and a default judgment was awarded to the Plaintiff.

"11. The Defendant subsequently filed a motion to set aside the default judgment.

"12. A trial setting was had on January 18, 1984, at which the defendant again failed to appear.

"13. The Court entered a default judgment for the Plaintiff. The Court set the matter for a hearing on April 25, 1984, to permit the Defendant to show what good cause he had for not appearing on January 18.

"14. An evidentiary hearing was held on May 2, 1984.

"15. The Defendant failed to appear. Default judgment was entered against him in the amount of $110.00, the amount of the security deposit, plus costs.

"16. The Defendant appealed the judgment of the Small Claims Court to this Court.

"[17.] Prior to receiving notice of Defendant's appeal, the Plaintiff garnished the Defendant's partnership account and the Clerk of Limited Actions paid out to the Plaintiff her lower judgment in the amount of $110.00."

Haynes asks us to make a number of rulings we decline to make. He wants us to find his security deposit provision in the lease was a "liquidated damage" provision and not prohibited by the Act. In the lease it is termed a "deposit ... as security to the Lessor for the performance of this Agreement." (Emphasis added.) We find no language common to liquidated damage clauses. Also, a lump sum penalty, common to liquidated damages, is proscribed by K.S.A. 58-2550(b) which provides only for actual damages sustained.

Haynes also asks us to make a finding that his lease form is not unconscionable, a finding we determine is not necessary for our decision.

Turning to the first issue in this case, and...