Opinion
No. 2008AP359.
Opinion Filed: February 26, 2009.
APPEAL from a judgment of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed.
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE 809.23 (2) AND (3).]
¶ 1 This appeal arises out of a dispute between Winterfield Properties LLC and its former tenant, Dale Woods. Woods appeals the circuit court's judgment of eviction and award of $2,488.86 in unpaid rent and related charges against Woods and the dismissal of her action for damages against Winterfield Properties. For the following reasons, we affirm.
BACKGROUND
¶ 2 Dale Woods is a participant in the United States Department of Housing and Urban Development (HUD) Section 8 Voucher Program under which a portion of her rent is paid by the federal government. She first entered into a lease with Winterfield Properties LLC for a term running from October 1, 2004 through September 30, 2005. The lease at issue in this case was for the term October 1, 2006 to September 30, 2007. The rent was $540 per month, due on the first day of each month, and this amount was approved by the public housing authority administering the program. In addition to rent, the lease provided that Woods was responsible for one-third of the sewer and water bill, which was to be billed quarterly.
¶ 3 According to Woods' submissions and testimony in the circuit court, Jeff Winterfield came to her on September 29, 2007, and asked her to sign a lease for the next year. He stated to her that the public housing authority would not allow an increase in the rent so he was raising her share of the water bill to 50%. She felt this was unfair and declined to sign the lease. She stated she was not going to pay 50% until he got separate water meters. According to Winterfield Properties' submissions, Winterfield then offered her a six-month lease at the one-third rate for utilities, but she declined to sign this. Both parties agree that Winterfield offered her a one-month lease at the one-third rate for utilities, but she declined to sign this.
According to Winterfield Properties' submissions, Winterfield first mentioned to Woods the possible need to increase her share of the utilities on August 5, 2006, and in early September provided her with a note attached to the utility bill stating he would like to increase her share of the utilities to 50%.
¶ 4 It is undisputed that on October 1, 2007, Winterfield Properties served a twenty-eight-day notice on Woods, informing her that her tenancy would terminate on October 30, 2007, "the last day of the rental period," and she was required to vacate the premises on or before that date. Winterfield Properties also served a five-day notice to quit or pay rent on Woods on October 16, 2007. See WIS. STAT. § 704.17(1) (if month-to-month tenant fails to pay rent when due, the tenancy is terminated if the landlord gives the tenant notice requiring the tenant to pay rent or vacate on or before a date at least five days after the giving of the notice and if the tenant fails to pay rent accordingly). Woods did not vacate the premises and did not pay her share of the rent for October, which was $279, although the public housing authority paid its share.
¶ 5 On November 1, 2007, Winterfield Properties filed a small claims action seeking Woods' eviction and unpaid rent and related charges. On the same date Woods filed a small claims action against Winterfield Properties seeking $5,000 in damages. Her complaint alleged that the lease required Winterfield Properties to advise her sixty days prior to raising her rent and it did not do so; therefore the eviction was illegal. She also alleged that there was mold in her apartment.
¶ 6 At the first hearing held in this matter on December 7, 2007, the only issue the court considered was the lawfulness of the eviction. At that hearing Woods contended that Winterfield Properties was required to give her a sixty-day advance notice before raising the rent and Winterfield told her only the day before the lease expired. She also argued that the eviction was retaliatory but, as we read the transcript, it is not clear what conduct of hers she believed Winterfield Properties was retaliating against. The court understood her to argue that the eviction was in retaliation for her complaint about the mold. The court determined that the lease was for a term of one year and there was no provision for automatic renewal and no agreement for a new lease. The court also determined that the complaint about mold was not a defense to the eviction because she did not make that complaint until October 2, 2007, after the lease expired. Accordingly, the court ordered her to vacate the premises.
¶ 7 Woods moved to reopen the order to vacate the premises. At this hearing she repeated her argument that she was entitled to a sixty-day advance notice before Winterfield Properties increased her rent under the federal regulations. Winterfield Properties contended that this sixty-day notice requirement was part of the contract between the public housing authority and the landlord, not between the landlord and the tenant. In the alternative, Winterfield Properties argued that, even if the sixty-day notice requirement were enforceable by a tenant against a landlord, Winterfield did not ask Woods to pay an increase in rent in the new lease term, but only a greater share of the utilities, with the rent remaining unchanged. The court concluded that Woods had not established a grounds for reopening the order to vacate the premises.
¶ 8 The case filed by Winterfield Properties and the case filed by Woods were consolidated in the circuit court for purposes of hearing Winterfield Properties' claim for unpaid rent and Woods' claim for damages. That hearing was held January 28, 2008. The court determined that Woods owed $2,101.86 in rent for the months of October, November, December, including late fees and unpaid utilities. The court also concluded that Woods had not established that she had been damaged as a result of mold in the apartment or otherwise, and it dismissed her claim against Winterfield Properties.
After the court ordered her to vacate the premises, Woods filed a document entitled "Counterclaim," which sought compensatory damages, punitive damages, and attorney fees, for a total of $29,796. The record shows that this document was considered a filing in both actions and was considered by the circuit court at the January 28, 2008 hearing as a statement of the relief Woods was seeking in her action — in essence, an amendment to her complaint. Therefore, the court's dismissal of Woods' "counterclaim" was the equivalent of a dismissal of her complaint.
DISCUSSION
¶ 9 In her main brief Woods renews her argument that the twenty-eight-day notice was unlawful and that she was entitled to a sixty-day notice before rent was increased. She also contends that her case should have been heard at the same time as the eviction action.
In her main brief Woods states that there are a number of issues she feels this court should address but "these issues are so numerous it would be asking the appellate [court] literally to retry the case." However, it is Woods' responsibility as the appellant to identify each error she believes the circuit court made and explain why that was an error. This is her responsibility even if she is proceeding without an attorney and is not able to explain the errors in the same way an attorney could. Therefore we consider only the errors that she identifies, although, as we explain later, see paragraph 16, infra, we also choose to address arguments she makes in her reply brief.
¶ 10 Woods raised the argument concerning a sixty-day advance notice requirement both at the first hearing on the eviction action and in her motion to reopen the order for eviction. Although the circuit court did not explain why it did not consider this a valid defense to the eviction, it implicitly rejected this defense both in ordering the eviction and in denying the motion to reopen the eviction order. We agree with the circuit court that there is no merit to this defense.
¶ 11 The construction and application of a lease to a given set of facts involves a question of law, Chase Lumber Fuel Co. v. Chase , 228 Wis. 2d 179, 191, 596 N.W.2d 840 (Ct.App. 1999), as does the construction and application of federal regulations. Williams v. Integrated Cmty. Servs. , 2007 WI App 159, ¶ 12, 303 Wis. 2d 697, 736 N.W.2d 226. An appellate court independently reviews questions of law decided by the circuit court. Id.
¶ 12 According to the form Housing Assistance Payments Contract required by the federal regulations, see 24 C.F.R. § 982.451(a)(1), it appears Woods is correct that the "tenancy addendum" to that contract is a part of every lease in the Section 8 voucher program and the tenant has the right to enforce it against the owner. See HUD HANDBOOK 7420.8, Form HUD-52641, Part B.2.d.(1)(2007). According to the addendum itself, if there is any conflict between its terms and the terms of the lease, the addendum controls. Id. , Part C.14.b. The addendum provides that good cause for termination of the tenancy is, after the initial lease term, "the tenant's failure to accept the owner's offer of a new lease or revision." Id. , Part C.8.d.(3)(a).
The handbook provisions we cite in this opinion are either identical to or substantially the same as the federal regulations on which they are based. See 24 C.F.R. §§ 982.308(d), (f), (g), 982.310(a), (d). Because Woods provided a copy of the handbook provisions we refer to and presumably has a copy herself, we will cite to the handbook provisions instead of the federal regulations.
It appears Woods may be correct that the affidavit of the executive director of the City of La Crosse Public Housing Authority, submitted by Winterfield Properties, is incorrect insofar as the director avers that the "tenant and landlord are subjected to no additional federal rules and regulations beyond the lease and the applicable sections of the Wisconsin Statutes." That is, by federal regulation the tenancy addendum is part of the lease and controls if the lease conflicts with the addendum. 24 C.F.R. § 982.308(f)(2).
¶ 13 The provision of the tenancy addendum on which Woods relies is Part C.15.b.-d. This provides as follows:
b. In the following cases, tenant-based assistance shall not be continued unless the PHA [public housing authority] has approved a new tenancy in accordance with program requirements and has executed a new HAP [housing assistance payment] contract with the owner:
(1) If there are any changes in lease requirements governing tenant or owner responsibilities for utilities or appliances;
(2) If there are any changes in lease provisions governing the term of the lease;
. . . .
c. PHA approval of the tenancy, and execution of a new HAP contract, are not required for agreed changes in the lease other than as specified in paragraph b.
d. The owner must notify the PHA of any changes in the amount of the rent to owner at least sixty days before any such changes go into effect, and the amount of the rent to owner following any such agreed change may not exceed the reasonable rent for the unit as most recently determined or redetermined by the PHA in accordance with HUD requirements.
¶ 14 The sixty-day advance notice requirement applies only to "changes in the amount of rent." Id. , Part C.15.d. There is no evidence Winterfield Properties sought to increase the rent above the $540 per month provided for in the October 1, 2006 — September 30, 2007 lease. The addendum treats utilities differently than rent. The changes in Woods' responsibility for paying for utilities that Winterfield Properties sought for the new lease term do not require any specified advance notice to either Woods or the housing authority. Those changes would require approval by the housing authority and a new contract between the owner and the housing authority, but there is no suggestion in the addendum that the owner may not first obtain the tenant's agreement.
We are assuming without deciding that "responsibilities for utilities" in the tenancy addendum includes responsibility for paying for utilities. This meaning is consistent with Woods' submission of "Part B of HAP [House Assistance Payment] Contract: Body of Contract," which sets out the terms of the contract between the owner and the public housing authority. This contract provides that "the lease must specify what utilities are to be provided or paid by the owner or tenant." HUD HANDBOOK 7420.8, Form HUD-52641, Part B.5.a.; see also 24 C.F.R. § 982.308(d)(5).
¶ 15 Accordingly, we conclude Winterfield Properties did not violate either the lease or the tenancy addendum by asking Woods to agree to an increase in her share of the utilities for a new lease term. Because she did not sign a new lease, there was good cause under the tenancy addendum for the termination of her tenancy effective September 30, 2007. See id. , Part C.8.d.(3)(a). While payment of rent would have established a periodic month-to-month tenancy, see WIS. STAT. § 704.01(2), she did not pay her share of the October rent. However, even if we view the public housing authority's payment of its share of the October rent as sufficient to make Woods a periodic month-to-month tenant for October, a landlord may terminate a periodic month-to-month tenancy with a twenty-eight-day notice. See WIS. STAT. § 704.19(3). A twenty-eight-day notice terminating a periodic tenancy is proper even if the tenant has paid rent. See Scalzo v. Anderson , 87 Wis. 2d 834, 846, 275 N.W.2d 894 (1979).
¶ 16 In her reply brief Woods argues that the existence of mold made the apartment uninhabitable and justified her withholding rent. In addition, she asserts, the existence of the mold entitled her to damages. We ordinarily do not address issues raised for the first time in a reply brief. See Schaeffer v. State Personnel Comm'n , 150 Wis. 2d 132, 144, 441 N.W.2d 292 (Ct.App. 1989). In this case Winterfield Properties discussed the issue of the mold in its brief. We therefore choose to address the issue.
¶ 17 As we have already explained, because the lease expired on September 30, 2007, and no new lease was signed, and because Winterfield Properties gave Woods a twenty-eight-day notice, Woods was obligated to vacate the premises on October 30, 2007, even if she had paid her share of the rent for the month of October. Therefore the circuit court at the hearing on the eviction properly did not consider as a defense to the eviction Woods' position that she did not pay rent because of the mold.
Whether Woods would have been entitled to stay until October 31, rather than October 30, had she paid rent for October, is an issue we need not decide because she did not pay her share of the rent for October.
¶ 18 Woods' submissions at the January 28, 2008 hearing showed that the County of La Crosse Health Department responded to her complaint about mold with a letter, dated October 3, 2007, to Winterfield Properties directing it to clean or remove all surfaces contaminated with mold inside the dwelling and to repair any defect that allows water to accumulate inside the dwelling within thirty days. The City of La Crosse Building and Inspection Department conducted an investigation and issued an order dated November 2, 2007, citing the following violations: "repair water leak in ceiling above bathroom. Clean all mold from bathroom walls. Repair broken windows in garage and south side basement." Winterfield Properties' submissions showed that an inspection of Woods' apartment had occurred on July 30, 2007, and showed that the premises passed the inspection. The comment section of two items stated specifically "okay per resident," suggesting that Woods was present during the inspection. There is no indication on the inspection report that Woods complained about mold. On January 10, 2008, the City of La Crosse Building and Inspection Department issued an inspection record of the premises stating
owner has removed ceiling tile in kitchen and opened wall in bathroom and all soft sheetrock removed. Saw no signs of mold visible where sheetrock had been removed in bathroom or on the ceiling of the kitchen. Owner will have ceiling in this weekend. New windows were ready to go back in.
Winterfield Properties represented to the circuit court that it appeared that the walls of the bathroom got moldy from moisture and simply needed to be cleaned.
¶ 19 In response to the circuit court's questions, Woods stated that she did not have any documentation or bills to show damages, but that she wanted damages for emotional distress. The court stated that it could not award damages for emotional distress and determined that Woods had not established a claim for damages based on the mold.
¶ 20 When we review a circuit court's findings of fact, we accept the facts found by the circuit court unless they are clearly erroneous. WIS. STAT. § 805.17(2). We also accept the credibility assessments and reasonable inferences drawn from the evidence by the circuit court. Rivera v. Eisenberg , 95 Wis. 2d 384, 388, 290 N.W.2d 539 (Ct.App. 1980).
¶ 21 The circuit court here found that the mold was surface only and that Woods had established no damages resulting from the mold. We conclude these findings are not clearly erroneous.
¶ 22 Woods also claimed that there was a leak in the kitchen ceiling that entitled her to damages. She submitted an affidavit from the tenant above stating that the tenants prior to Woods "had a leak in their ceiling about the same area where Dale Woods had a leak." In addition, Woods submitted a report from the La Crosse Fire Department indicating that on December 11, 2007, it responded to a call from Woods complaining of water dripping from a ceiling light fixture in the kitchen area. They referred the matter to the building inspector, thinking it might be the roof leaking "with a possible ice dam problem." The City of La Crosse Building and Inspection Department issued an order dated December 12, 2007, to "repair leak above kitchen ceiling."
¶ 23 Winterfield Properties' counsel represented that in response to the notification from the city, Winterfield Properties had a contractor come out and determine that the problem was "an ice dam," which Winterfield Properties resolved. He stated Winterfield Properties had not had prior notice of this and water had simply backed up "during the melt," and it was not "an ongoing thing." According to Winterfield Properties' counsel, this did not have anything to do with the mold, which was the issue before the court.
¶ 24 Although the circuit court did not expressly state that it was finding Woods was not entitled to an abatement in the rent she owed because of mold or because of the kitchen ceiling leak, this is implicit in the court's award of unpaid rent and related charges to Winterfield Properties and its dismissal of Woods' claim. We conclude this implicit finding is not clearly erroneous. Woods simply introduced no evidence to show that either the mold or the kitchen ceiling leak was significant enough to "deprive[] [her] of the full normal use of the premises" and thus entitle her to an abatement of rent. See WIS. STAT. § 704.07(4). We note that this statute specifically does not "authorize rent to be withheld in full if the tenant remains in possession."
¶ 25 It is not clear to us whether the court found the kitchen ceiling leak was irrelevant because it did not relate to the mold or found that Woods did not establish any damages resulting from the kitchen ceiling leak. Either finding is not clearly erroneous. Woods did not explain how the kitchen ceiling leak caused the mold and she did not explain what damages resulted from the leak.
CONCLUSION
¶ 26 We conclude the circuit court did not err factually or legally in entering an order of eviction, awarding past due rent and related charges in the amount of $2,488.86 to Winterfield Properties, and dismissing Woods' claim for damages against Winterfield Properties. By the Court. — Judgment affirmed.
In its brief, Winterfield Properties seeks attorney fees pursuant to WIS. STAT. RULE 809.25(3) on the ground that this appeal is frivolous. However, with certain exceptions not applicable here, such a request must be made by motion filed no later than the filing date of the respondent's brief. RULE 809.25(3)(a). Because Winterfield Properties did not comply with this requirement, we do not consider the request.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.