Worden v. Ordway

• Decision Date: 24 October 1983
• Docket Number: No. 14579,14579
• Citation: 672 P.2d 1049,105 Idaho 719
• Parties: Dianna B. WORDEN, Plaintiff-Appellant, v. Joseph ORDWAY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1049

672 P.2d 1049

105 Idaho 719

Dianna B. WORDEN, Plaintiff-Appellant, v. Joseph ORDWAY, Defendant-Respondent.

No. 14579.

Supreme Court of Idaho.

Oct. 24, 1983.

Jonathan Ellison, Idaho Legal Aid Services, Inc., Lewiston, for plaintiff-appellant.

No appearance by defendant-respondent.

BAKES, Justice.

This is an appeal from the dismissal of Counts 1 and 3 of plaintiff's complaint. The dismissal was granted at the end of the trial, but prior to submission of the balance of the issues raised by plaintiff's complaint to the jury, which returned a verdict against plaintiff. Viewing the evidence most favorably to the appellant on those two dismissed counts, as we must, Pigg v. Brockman, 85 Idaho 492, 381 P.2d 286 (1963), the evidence before the trial court is reasonably susceptible to the following interpretation.

Appellant moved to Lewiston from Oregon in March, 1977. After failing to find a suitable dwelling for herself and her three children, she rented a unit at the Green Gables Motel from respondent. After one night, appellant and respondent agreed that appellant would rent the unit on a monthly basis for $120 per month. The unit consisted of one room, with a kitchenette and bathroom. However, because the heating unit in this room did not work properly, appellant soon moved to a larger unit, renting for $160 per month. The larger unit consisted of a living room, bedroom, kitchenette and bath. Shortly after moving into the larger unit, the kitchen sink failed to drain properly. Appellant allegedly notified respondent of this problem, but he failed to fix it. Later, the plumbing in the bathroom failed. Appellant testified that when the toilet was flushed, it would back up into the shower. Also, when someone was in the shower, it would not drain and thus would constantly overflow. This condition resulted in a continually damp, smelly and musty atmosphere in the apartment. These conditions were never repaired, even though respondent was allegedly given oral notice of the defects.

In November of 1977, the hot water in appellant's apartment failed completely. She had no hot water at all until approximately four months later, in February, 1978, when, due to repairs made by appellant's boyfriend, partial hot water capacity was restored. The hot water capacity was never fully restored before appellant vacated the premises. Appellant notified respondent of this problem, and he allegedly promised to fix it. In the meantime, appellant and her three children walked across the parking lot to another unit to use the shower.

During her tenancy, appellant was also bothered by the presence of rats, mice, and roaches (woodbores, as appellant referred to them).

At the end of April, 1978, appellant apparently began to vacate the premises. She had previously withheld rent payments for March and April in an attempt to force respondent to make repairs. While appellant was in the process of moving out (but apparently before appellant had the chance to remove all of her belongings), respondent locked up the premises and refused to allow appellant to remove the remainder of her belongings. On May 3, 1978, appellant's counsel sent a letter to respondent, giving him the three day notice required under I.C. § 6-320. Appellant then filed suit on May 17, 1978. Appellant alleged several causes of action against respondent, including (1) breach of an implied warranty of habitability, (2) intentional infliction of emotional distress, (3) violation of I.C. § 6-320, (4) violation of the Uniform Housing Code, (5) negligence per se, (6) constructive eviction, (7) breach of the covenant of quiet enjoyment, (8) nuisance, and (9) return of property held by respondent after the supposed lockout. Respondent counterclaimed for the balance of the rent claimed due and for damages, asserting that plaintiff's living habits caused the damage to the plumbing, which in turn overflowed and damaged respondent's property.

A jury trial was held before a magistrate. However, before submitting the case to the jury, the magistrate removed from the jury's consideration the causes of action numbered (1) and (3) above. The jury then returned a verdict awarding no damages to either side. The major issues appellant raises on appeal are whether the magistrate erred in directing verdicts on causes (1) and (3). The magistrate, on Count 1, ruled that Idaho has not yet recognized the implied warranty of habitability, and he did not "choose ... to plow a new ground in this particular case." On Count 3, the magistrate ruled that appellant had not sufficiently complied with the notice requirement under the statute in that the appellant had already partially vacated the apartment when the notice was given. Since the statute itself requires the notice as a prerequisite to standing, the magistrate felt that a person who had terminated the tenancy should not be able to maintain standing to sue for damages under the act; thus, verdicts were directed under Counts 1 and 3. Appellant appealed to the district court, and the district court issued an order affirming, without opinion, the decision of the magistrate. On appeal, appellant asks that we overturn the magistrate's decision granting a directed verdict. We will first consider the directed verdict on Count 3.

I

The trial court's action in removing Count 3 from the jury's consideration, although termed a motion to dismiss, was essentially a directed verdict. Blackburn v. Boise School Bus Co., 95 Idaho 323, 508 P.2d 553 (1973); Bauscher Grain v. National Surety Corp., 92 Idaho 229, 440 P.2d 349 (1968); Van Vranken v. Fence-Craft, 91 Idaho 742, 430 P.2d 488 (1967). A motion for directed verdict admits the truth of the adversary's evidence and every inference of fact which may legitimately be drawn therefrom. Smith v. Big Lost River Irr. Dist., 83 Idaho 374, 364 P.2d 146 (1961). Moreover, the evidence must be considered in a light most favorable to the party against whom the motion has been made. Pigg v. Brockman, 85 Idaho 492, 381 P.2d 286 (1963). A trial court should direct a verdict only if, as a matter of law, the plaintiff would not recover under any reasonable view of the facts. Smith v. Big Lost River Irr. Dist., supra.

I.C. § 6-320, upon which Count 3 is based, is a statutory version of the implied warranty of habitability. Under that section, a landlord can be liable for damages for failure to keep the premises in good repair, or for any other breach of the lease or rental agreement which materially affects the health and safety of the tenant. To maintain an action on this section, the tenant must show that the landlord failed to do one of five things.

(1) Failure to provide waterproofing and weather protection.

(2) Failure to maintain in good working order electrical, plumbing, heating, ventilating, cooling or sanitary facilities.

(3) Maintaining the premises in a manner hazardous to the health or safety of the tenant.

(4) Failure to return a security deposit as and when required by law.

(5) Breach of any term or provision of the lease or rental agreement materially

affecting the health and safety of the tenant.

The statute itself also provides that certain procedural steps must be taken. The procedural requirement under I.C. § 6-320 that we are concerned with here is the requirement that the tenant give the landlord three days' written notice requiring him to cure the defects before suit may be filed. The question in this case is essentially whether the tenant here complied with this provision.

There is no question that appellant did give respondent a written notice of the defects she felt violated I.C. § 6-320. The only question is whether the timing of the notice was sufficient. I.C. § 6-320(d) requires a three day notice, but does not indicate the status of the tenant at the time the notice is given. The trial judge evidently felt that since the tenant here was no longer physically living at the motel at the time she gave the notice, I.C. § 6-320 was not applicable.

Two questions are presented by appellant's claim that the trial court erred in dismissing Count 3 of her complaint. The first is whether or not a tenant, who is no longer in physical possession of the premises may nevertheless still maintain an action against the landlord under I.C. § 6-320, after first giving the landlord the three days' notice required by that section. The second issue is whether or not, viewing the evidence most favorably toward the appellant, there was a material issue of fact concerning whether or not the appellant was still in possession of the premises at the time she gave the landlord the three days' notice under the statute.

A.

A reading of the statute discloses that there are some statutory violations on the part of the landlord that can occur irrespective of possession by the tenant. Under I.C. § 6-320(a)(3), the tenant is allowed to sue for damages if the landlord has failed to return a security deposit in the time required under I.C. § 6-321. Additionally, I.C. § 6-320(a)(5) allows a suit for damages for breach of the terms of the lease. In Idaho there is an implied covenant in every lease for quiet enjoyment of the property. McCullough v. Cuthbert, 46 Idaho 294, 267 P. 828 (1928). Thus, if a landlord substantially interferes with a tenant's use and enjoyment of the premises he has breached this covenant. Where a landlord wrongfully locks a tenant out of the premises, such as is alleged to have occurred in this case, a tenant would be entitled to bring an action under I.C. § 6-320(a)(5) for breach of the covenant of quiet enjoyment, after first giving the three days' notice required by I.C. § 6-320(d), even though the tenant would have lost actual physical possession of the premises. Accordingly, we conclude that a tenant's right to sue under I.C. § 6-320 is not invariably precluded because at the time the three days' notice was given the tenant was no longer in physical possession, at least as the...