Opinion
Case No. 117,591
02-11-2020
TRACY-HERALD CORP., d/b/a Sunwood Apartments, Plaintiff/Appellee, v. Sabrina D. JONES, Defendant/Appellant.
Richard A. Hoffman, Tulsa, Oklahoma, for Plaintiff/Appellee, Eric D. Hallett, LEGAL AID SERVICES OF OKLAHOMA, INC., Tulsa, Oklahoma, for Defendant/Appellant.
Richard A. Hoffman, Tulsa, Oklahoma, for Plaintiff/Appellee,
Eric D. Hallett, LEGAL AID SERVICES OF OKLAHOMA, INC., Tulsa, Oklahoma, for Defendant/Appellant.
Opinion by Bay Mitchell, Presiding Judge:
¶1 In this forcible entry and detainer action Defendant/Appellant, Sabrina Jones, appeals from a journal entry of judgment evicting her from the apartment she rented from the Defendant/Appellee, Tracy-Herald Corp., d/b/a Sunwood Apartments (Sunwood), and the trial court's denial of Jones's request to vacate the judgment. Jones argues that Sunwood's inclusion of late fees in the amount listed as "rent" in the notice-to-pay-or-quit given under 41 O.S. 2011 § 131(B) was so defective as to deprive the trial court of subject matter jurisdiction. Because the presuit notice was sufficient under § 131(B) despite the inclusion of the late fees, we affirm.
FACTUAL BACKGROUND
¶2 Jones rented an apartment from Sunwood for $650 per month. The lease included a provision that if the rent was paid late, a fee of $62 per month would be assessed. It is undisputed that Jones failed to pay her rent in both August and September of 2018. On September 12th, Sunwood issued a "Notice to Pay Rent" that demanded Jones vacate the premises within five days of receipt. In relevant part, the notice states as follows:
Notice to you and all others in possession of the below described premises, that you are hereby notified to vacate, quit and deliver the premises you hold as our tenant, namely: [legal description].
You are to deliver said premises within FIVE (5) days (excluding date of service, Saturday, Sunday and legal holidays) of receipt of this notice, pursuant to the applicable law of Oklahoma.
This notice is provided due to non-payment of rent. The present rent arrearage is in the amount of $1,424.00 according to the account below:
August and September, 2018 rent and late fee
You may reinstate your tenancy by making full payment within FIVE (5) days (excluding date of service, Saturday, Sunday and legal holidays) on or before the 20th day of September, 2018, as provided under the terms of your lease agreement or by applicable state law. In the event you fail to bring your rent payments current or vacate the premises, we shall immediately take legal action to evict you and to recover rents and damages for the unlawful detention of the premises, together with any future rent that may be due us for breach of your lease agreement.
¶3 The $1,424 listed as "present rent arrearage" was the sum of two months unpaid rent ($1,300) and two months of late fees ($124). It is undisputed that Jones neither paid this amount nor vacated the premises within five days. Sunwood then instituted this forcible entry and detainer action against Jones, seeking a money judgment for the unpaid rent and fees, costs of suit, and possession of the premises.
¶4 A bench trial was held and the trial court found in favor of Sunwood. No court reporter was present and no narrative statement of the proceeding was entered into the record. After trial, at which Jones and her attorney appeared, the court entered judgment in favor of Sunwood for $1,164, costs of suit, and possession of the apartment. The $260 reduction in the judgment from the amount sought was due to a partial payment Jones had made prior to trial.
¶5 Within ten days of the filing of the judgment, Jones filed a motion seeking to vacate the judgment under the theory, among other arguments not presented on appeal, that the trial court was without jurisdiction from the outset because the presuit notice included a demand for payment of late fees, which Jones claims is impermissible under § 131(B). A hearing was held on the motion, a transcript of which does appear in the record. The trial court rejected Jones's arguments, including her jurisdictional argument, and entered an order denying the motion to vacate. However, during the course of the proceedings, the trial judge became aware that she had inadvertently included the late fees in the first judgment. Because she never intended to include these fees in her original judgment, she entered a new judgment for $1,040, being $124 less than the initial $1,164 judgment. Jones appeals from both judgments and the order denying her motion to vacate the first judgment.
STANDARD OF REVIEW
¶6 We review the question of whether the trial court had subject matter jurisdiction de novo. Reeds v. Walker , 2006 OK 43, ¶10, 157 P.3d 100, 107 ("When there are no contested jurisdictional facts, the question of subject matter jurisdiction is purely one of law which we review de novo ." (footnotes omitted)). Additionally, statutory construction presents a question of law that we review de novo . Humphries v. Lewis , 2003 OK 12, ¶3, 67 P.3d 333, 335. The trial court's failure to vacate the first judgment upon Jones's motion is reviewed for an abuse of discretion. Ferguson Enterprises v. Webb Enterprises , 2000 OK 78, ¶5, 13 P.3d 480, 482.
ANALYSIS
¶7 Jones argues that the trial court never had subject matter jurisdiction over the FED action because the presuit notice required under 41 O.S. 2011 § 131(B) was defective. The provision in question states:
A landlord may terminate a rental agreement for failure to pay rent when due, if the tenant fails to pay the rent within five (5) days after written notice of landlord's demand for payment....
Demand for past due rent is deemed a demand for possession of the premises and no further notice to quit possession need be given by the landlord to the tenant for any purpose.
Jones argues that because Sunwood's demand for payment of rent also demanded payment for late fees — which Jones claims cannot be "rent" under the statute — the notice fails as a matter of law, and the trial court was therefore without jurisdiction to proceed with the action to evict.
For purposes of this opinion, Jones's contention that the late fees cannot be considered rent under the statute is presumed correct; however, it is not clear that such is the case. Under the relevant statute, "rent" is defined as "all payments , except deposits and damages, to be made to the landlord under the rental agreement." 41 O.S. 2011 § 102(11) (emphasis added). Jones argues that under Sun Ridge Inv'rs, Ltd. v. Parker , 1998 OK 22, 956 P.2d 876, late fees must be damages and that late fees cannot therefore be considered "rent." However, Sun Ridge does not stand for the proposition that all late fees are by definition damages. Rather, Sun Ridge focused on whether a $5.00 per day late charge on a $465.00 per month lease was an impermissible penalty or permissible liquidated damages under the relevant statutes. Id. at ¶6. Indeed, the Court in Sun Ridge acknowledged that the landlord also charged a $20.00 per month late fee, but that fee was voluntarily paid by the tenant and not challenged as an impermissible penalty, and therefore not at issue in the case. Id. at ¶2. The use of the phrase "damages" in § 131(B) might refer to other types of damages than the late-fees-as-liquidated-damages at issue in Sun Ridge , such as physical damage to the property. However, because we find that the notice at issue is sufficient even presuming that late fees cannot be considered rent under § 131(B), we need not decide this issue.
¶8 Jones relies on several cases for the proposition that "service of a pre-termination notice is jurisdictional." Brief-in-Chief, pg. 7-8. This proposition is correct as far as it goes; however, the cases cited concern whether there was proper service or proof of service of the notice. Here, however, the fact of proper service of the presuit notice is admitted, the only question being whether the notice was so deficient under the statute as to amount to no notice at all.
See Sparks v. Calloway , 1938 OK 395, 183 Okla. 332, 82 P.2d 830 ; Bonewitz v. Home Owners Loan Corp. , 1942 OK 431, 191 Okla. 654, 132 P.2d 644 ; and Moran v. Hooper , 1958 OK 28, 321 P.2d 963.
Sparks holds that the fact of the presuit notice to quit need not be plead, but it is sufficient if it is proved at trial. Sparks at ¶4, 831. In Bonewitz , evidentiary issues with the fact of service, not the content of the notice, required reversal. Bonewitz at ¶5, 645. Likewise, in Moran the proof at trial was insufficient to establish that the required presuit notice was given at all. Moran at ¶4, 964.
¶9 In this case, Sunwood's notice is fully compliant with 41 O.S. 2011 § 131(B) and certainly meets the substantial compliance standard used in evaluating presuit notice requirements. The presuit notice required under that statute allows a landlord to terminate a lease if the tenant fails to pay rent that is due within five days of the landlord's demand for payment. 41 O.S. 2011 § 131(B). The only requirements of the notice are that it be in writing and that it make a demand for payment of rent. Id. Here there is no dispute that the notice was given, in writing, and that it demanded payment of rent from Jones. The only complaint is that the notice demanded payment for more than just rent. However, the statute does not forbid a landlord from seeking more than rent in its notice; it simply requires a written demand for payment of rent.
Under a presuit notice requirement such as that required under 41 O.S. 2011 § 131(B), substantial compliance with the statute is all that is required. Hobbs v. McGhee , 1924 OK 717, ¶9, 229 P. 240, 242, 100 Okla. 210, 229 P. 240 ("A substantial notice to quit and leave the premises, and not technical accuracy, is what the statute requires." (quoting Oklahoma City v. Hill , 1896 OK 82, 4 Okla. 521, 46 P. 568 )). See also, Sparks v. Calloway , 1938 OK 395, ¶4, 183 Okla. 332, 82 P.2d 830, 831 ("Substantial compliance with the terms of the statute is sufficient.... The technical requirements as to pleading are not required in an action in forcible entry and detainer, and where the complaint substantially meets the requirements of the statute, it is sufficient.")
¶10 Jones's position requires reading more into the statute than is present in the text. Under Jones's interpretation, any demand for payment in the § 131(B) notice, other than a demand for the exact amount of rent owed at the time of the notice, would invalidate the notice for all purposes. Not only must the landlord include only rent, he would be required to be exactly correct in his demand for payment or leave the court without jurisdiction to award possession. This reading would add a requirement in the statutory text that is not present, which we will not do. See, e.g., King v. Hancock, 1946 OK 278, ¶5, 197 Okla. 666, 173 P.2d 944, 946 (refusing to read a requirement that a tenant's name actually appear in the notice to quit where no such requirement was reflected in the statute). In King , the Court cautioned: "Unless a definite statutory form [for the notice to quit] is prescribed no special form is indispensable, and any demand is sufficient if the person to whom it is given understands, if of common understanding, what is demanded, and by whom." Id. at ¶7, 946.
¶11 The statute does not require that the landlord include any dollar figure in their demand at all, but just a written demand for payment of rent. We hold that the presuit notice in this case was sufficient under § 131(B) even though it included a demand for payment of $112 in late fees.
¶12 Finally, we note that Jones complains that because the court below both denied her motion to vacate the first judgment, but then entered a second judgment, "it appears there are now two judgments against the Defendant in this case." Brief-in-Chief, pg. 3. Although we agree that it could appear as though there are two viable judgments remaining against Jones, we wish to clarify that it is only the second judgment entered that survived the proceedings below. Although the trial court denied Jones's motion to vacate the first judgment for the reasons Jones requested, the court's entry of an entirely new judgment supplanted the first judgment. "In Oklahoma, there is but one judgment for each cause of action." Hubbard v. Kaiser-Francis Oil Co. , 2011 OK 50, ¶16, 256 P.3d 69, 73. Here, there was only one cause of action and there can be only one judgment remaining against Jones. The judgment filed below on October 8, 2018 was entirely superceded by the judgment filed on November 19, 2018.
¶13 For the reasons set for above, both the November 19, 2018 judgment and the order denying Sunwood's motion to vacate the prior judgment are AFFIRMED.
¶14 Jones's motion for oral argument is DENIED.
SWINTON, V.C.J., and BELL, J. (sitting by designation), concur.