11 NICS App. 7, KLAMATH TRIBES HOUSING DEPT. v. JACKSON (March 2013)
IN THE KLAMATH SUPREME COURT
KLAMATH TRIBES
CHILOQUIN, OREGON
Klamath Tribes Housing Department, Plaintiff and Appellee,
v.
Kenneth Jackson, et al, Defendants and Appellants.
NO. CIVGH-120016 (March 7, 2013)
SYLLABUS*
Tribal housing authority sought to evict tenant of low-income tribal housing based on tenant’s failure to pay current rent and failure to comply with payback agreement concerning past-due rent. Trial court dismissed claim regarding payback agreement, but found tenant was late on current rent and was therefore guilty of unlawful detainer. On appeal, Supreme Court rejects tenant’s claims that housing authority had caused the late payment, waived its right to pursue eviction, and withheld evidence at trial. Trial court order affirmed.
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Before:
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Michelle Demmert, Chief Justice; Randy A. Doucet, Justice; Gregory M. Silverman, Justice.
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Appearances:
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Kenneth Jackson, pro se.
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OPINION
Per curiam:
I. Appellate Proceedings and Standard of Review
This matter came before the Klamath Supreme Court pursuant to the Notice of Appeal filed on September 25, 2012 by the Appellant, Kenneth Jackson, on behalf of himself and “all others” subject to the Judgment, Order of Eviction, and Writ of Restitution issued by the Klamath Tribal Court on September 21, 2012. Klamath Tribal Code (KTC) 2.16.04(a) confers jurisdiction on the Supreme Court to hear this appeal. The Notice of Appeal was timely filed pursuant to KTC 11.68.12(o), timely served pursuant to KTC 2.16.09(a), and substantially complies with the content requirements of KTC 2.16.06. The Notice of Appeal was accompanied by an application and supporting affidavit seeking a waiver of the appellate filing fee and permission to proceed in forma pauperis.
11 NICS App. 7, KLAMATH TRIBES HOUSING DEPT. v. JACKSON (March 2013) p. 8
Based on the foregoing, on December 11, 2012, this Court issued a Scheduling Order in which we accepted the appeal for review, granted Appellant’s application for a waiver of the appeal filing fee, and granted Appellant’s application to proceed in forma pauperis. Our December 11 Scheduling Order noted that the Klamath Tribal Rules of Appellate Procedure do not require written briefs, but we extended the time for the parties to do so and encouraged the parties to address in their written briefs several questions posed by the Court in order to assist the Court in understanding and ruling on the issues presented by the appeal. Our December 11 Order informed the parties that KTC 2.16.24 grants the Court discretion whether to hear oral argument, and that the Court would announce whether it would do so after reviewing any briefs that might be filed.
Neither party availed itself of the opportunity to file a written brief with the Court. In light of these developments and the nature of the claims raised in the notice of appeal, the Court does not believe oral argument will assist the Court in deciding the issues, and the Court therefore now issues this opinion based on the record of the lower court proceedings and the argument presented by Appellant in his Notice of Appeal and supporting affidavit.
Pursuant to KTC 2.16.26(a), this Court’s review is limited to the record of the Tribal Court proceeding and this Court “shall not consider any new or additional evidence that is not part of the record on appeal.” We are required to affirm the Tribal Court’s decision unless we find that decision to be “in violation of or not in accordance with” applicable law or “clearly erroneous in view of the entire record on appeal.” KTC 2.16.26.
II. Factual and Procedural History
Mr. Jackson was the lessee of a low-income residence owned by the Klamath Tribes Housing Department (KTHD). Jackson’s rent payments for January, February, March, June and July of 2012 were late. On July 12, 2012, Jackson and KTHD entered into a Payback and Non-Waiver Agreement whereby Jackson would pay KTHD $475.20 in accumulated rent due in four equal payments due on July 12, July 26, August 9, and August 23. Jackson made the first two payments, but missed the August 9 payment. Jackson also failed to pay his August rent by the first of the month, as required by the lease, with that amount becoming “delinquent” on the 7th day of the month per the lease.
On August 15, 2012, KTHD prepared, but did not immediately file, a “Residential Eviction Complaint” based on Jackson’s “non compliance with the payback and non-waiver agreement that was due August 9, 2012.” On August 16, 2012, KTHD issued Jackson a 72 Hour
11 NICS App. 7, KLAMATH TRIBES HOUSING DEPT. v. JACKSON (March 2013) p. 9
Written Notice of Landlord’s Intent to Terminate Residential Agreement based on Jackson’s failure to pay his August rent on time. The Notice includes the line “Date and time mailed to Tenant: August 16, 2012 at 4:00 p.m.” and is signed by the KTHD Low Rent Program Coordinator. On August 21, KTHD prepared a second “Residential Eviction Complaint” based on Jackson’s failure to pay August rent in response to the 72 hour written notice for non-payment of rent. Id.
KTHD filed both the August 15 and August 21 Residential Eviction Complaints on August 21, 2012, and the clerk issued a single summons for both complaints setting a hearing for September 19, 2012. At the hearing, the Tribal Court, Judge James D. Hill presiding, formally consolidated the two complaints.
Jackson did not file a written answer, but did appear at the hearing. At the hearing, Jackson claimed that at some time in August he had a telephone conversation with Theresa Salem, the KTHD Low Rent Program Coordinator, in which Salem told him that KTHD would dismiss the eviction complaints if Jackson would pay the overdue August rent ($246 according to Jackson) and the balance due on the payback agreement ($236 according to Jackson). Jackson testified that thereupon, on August 23, he went to the tribal administration building and left $246 for the 72 hour notice for August rent in cash in an envelope with the receptionist. The cash payment appears to have either been lost or misappropriated, as Jackson acknowledged receiving a second 72 hour notice about a week later. Emma Wright, the receptionist at the Tribal administration building, appeared as a witness and confirmed that Jackson did leave cash in an envelope with her on August 23. Ms. Wright testified that she observed Mr. Jackson count out an unspecified amount of cash, although she did not touch the cash itself and cannot verify the amount. Ms. Wright testified that because of construction activity in the office, she had Mr. Jackson place the cash in a standard business envelope on which she had him write his name and address, and that she then placed that envelope in a manila inter-office mail envelope which she placed in the KTHD mail slot because the KTHD office was closed at the time. KTHD claims it never received the payment, and Ms. Wright confirmed that the Tribe is investigating the disappearance of the funds. Mr. Jackson also testified that he was prepared to pay $236 on the payback agreement, but that he was told KTHD would not accept partial payment. He did not explain or introduce any evidence in regards to when this conversation took place, whom he spoke to, whether his offer to satisfy the payback agreement was made before or after additional rent or fees became overdue, or why $236 would be considered “partial” payment on the payback agreement.
Judge Hill announced his decision from the bench, and also issued a written decision, which he signed the day of the hearing and filed in the Court on September 21, 2012. Judge Hill ruled against KTHD on the complaint for eviction based on Jackson’s failure to comply with the payback agreement because KTHD did not provide Jackson proper notice that it intended to
11 NICS App. 7, KLAMATH TRIBES HOUSING DEPT. v. JACKSON (March 2013) p. 10
terminate the lease based on his non-compliance with the payback agreement. However, Judge Hill ruled that KTHD had satisfied the notice requirements of the Tribe’s Landlord-Tenant Ordinance in regards to Jackson’s failure to pay August rent on time. The Judge acknowledged Jackson’s apparent effort to pay the August rent on August 23 and that funds have apparently gone missing, but also noted that even if payment had been received by KTHD, it would still not cure the breach of the lease terms, and given the posture of the parties, he could not find that KTHD intended to revive the rental agreement by accepting late payments.
III. Analysis
Mr. Jackson’s Notice of Appeal and supporting affidavit claims the Tribal Court erred in three respects. First, the Notice of Appeal claims “improper filing of 68.10(b) and no filing of 68.11(d) late rent payments caused prejudicial influence on 68.10(a).” Second, the Notice of Appeal claims “intentional evidence withheld by KTHD also.” Third, the affidavit Jackson submitted as an attachment to his Notice of Appeal states that his August 2012 rent payment was made on August 23 instead of August 20 “per verbal agreement with Theresa Salem.”
A. KTC Title 11, Chapter 68
Mr. Jackson’s Notice of Appeal claims “improper filing of 68.10(b) and no filing of 68.11(d) late rent payments caused prejudicial influence on 68.10(a).” (“68” presumably refers to Title 11, Chapter 68, the Klamath Tribes’ Landlord-Tenant Ordinance). KTC 68.10(b) simply establishes that a tenant is guilty of unlawful detainer and may be evicted for “failure to pay any arrearage in Rent [sic], costs or damages which have been due and owing for thirty (30) calendar days or more,” and that the “receipt by a Landlord of partial payments under an agreement shall not excuse the payment of any balance due upon demand.” KTC 68.10 defines the circumstances under which a tenant is guilty of unlawful detainer. Neither KTC 68.10(b) nor any other provision of KTC 68.10 address “filing.”
Mr. Jackson cites KTC 68.11(d), but we find no such section of the code. It appears Mr. Jackson may be referring to KTC 68.11(b)(3)(D), which requires that “the person giving notice [of termination] must keep a copy of the Notice and proof of service (certified by affidavit or other manner recognized by law).” However, KTC 68.11(b) and each of its subsections apply only where a lease or rental agreement does not contain any provision for a tenant to be served with a written notice of termination, or where a person is occupying a property without a lease or rental agreement. Because the rental agreement between Mr. Jackson and KTHD includes detailed provisions addressing when and how a tenant is to be served a written notice of termination, KTC 68.11(b) does not apply. KTHD needed only to comply with the notice and service provisions of the rental agreement, and the trial court found that it did so.
Mr. Jackson also cites KTC 68.10(a). KTC 68.10(a) establishes that, in addition to the KTC 68.10(b) provision that a tenant can be evicted for any arrearage due and owing for thirty days or more, a tenant can also be evicted for
11 NICS App. 7, KLAMATH TRIBES HOUSING DEPT. v. JACKSON (March 2013) p. 11
Failure to pay the full amount of rent due under a Lease or Rental Agreement when such payments are not made within seven (7) calendar days of the Lease or Rental Agreement date of payment or seven (7) calendar days following the first day of the month in a month to month tenancy. The receipt and/or acceptance by a Landlord of partial payments of rent shall not constitute a waiver of the right to seek eviction for failure to pay rent and partial payment of rent without an express agreement to waive the remaining amount shall constitute unlawful detainer.
There is no dispute that Mr. Jackson violated KTC 68.10(a) by failing to pay his August rent within seven calendar days of its due date, which was August 1, 2012.
Because the Judge ruled against KTHD on the complaint for non-compliance with the payback agreement, and because KTC 68.10(a) provides independent grounds for the eviction, KTC 68.10(b) is irrelevant. KTC 68.11(b)(3)(D) does not apply because the rental agreement itself includes provisions governing notice. Mr. Jackson’s claim that acts and omissions by KTHD somehow prejudiced his ability to pay his August rent on time are without merit.
B. Withholding Evidence
The second claim identified in Mr. Jackson’s Notice of Appeal is “Intentional evidence withheld by KTHD also.” Jackson does not identify the evidence he believes was withheld. Presumably, this claim relates to the cash payment that he claims to have made for August rent on August 23. Since there is no dispute whatsoever that he did not pay his rent by August 7 as required under both his rental agreement and the Landlord-Tenant Ordinance, it is difficult to imagine any scenario under which additional evidence, even if intentionally withheld, could affect the judgment. Any evidence that might relate to KTHD actually having received Mr. Jackson’s August rent on August 23 would at most support a claim for a refund, a credit against any judgment or funds due, and/or disciplinary measures against anyone who may have misappropriated the funds and/or withheld evidence concerning receipt of the funds.
C. Verbal Agreement to Dismiss Eviction Proceedings
Mr. Jackson also attached an affidavit to his Notice of Appeal which repeats the above claims, and also states that “Rent payment made on 8/23/2012 instead of by 8/20/2012 was per verbal agreement with Teresa [sic] Salem,” the KTHD Low Rent Program Coordinator. At trial, Mr. Jackson testified that “When I talked to Mrs. Salem over the phone in August, she said if I paid the $246 and the $236, we, uh, she would make a phone call to dismiss the case if I had paid the whole sum.” These statements, liberally interpreted to the benefit of Mr. Jackson, can be construed as raising the allegation that the trial court erred by failing to recognize an enforceable
11 NICS App. 7, KLAMATH TRIBES HOUSING DEPT. v. JACKSON (March 2013) p. 12
settlement agreement between the parties that Mr. Jackson satisfied by tendering the August rent payment. However, there are several problems with this line of argument. No evidence was offered to establish that Ms. Salem had the authority to modify the rental agreement in this manner or to offer such a settlement. Section XIX of the rental agreement states that “This rental agreement and its incorporated references shall constitute the entire agreement between the parties,” and Section XVI requires any amendments to the agreement to be in writing and signed by the parties. Thus, nothing Ms. Salem could have stated in a phone call could have effected a modification or amendment of the terms of the rental agreement. Furthermore, it is well established that settlement offers made in the course of litigation are not admissible. Finally, even if it had been established that an enforceable oral settlement agreement had been made between the parties, Mr. Jackson’s own testimony establishes that he had been prepared to, but in fact did not, pay the $236 due on the payback agreement. Based on the record before us, we cannot conclude that an enforceable settlement agreement existed, nor can we conclude that Mr. Jackson satisfied the terms of the purported settlement agreement.
IV. Conclusion
The trial court found that Mr. Jackson was late paying his August rent; that the late payment made him guilty of unlawful detainer under KTC 68.10(a); that KTHD complied with the notice and service requirements set forth in the rental agreement; and that none of the actions of the parties waived KTHD’s right to terminate the tenancy. While this Court is troubled that a KTHD employee may have made an oral settlement offer, and the Court is further troubled that a cash payment made by Mr. Jackson has apparently been lost or misappropriated, nothing in Mr. Jackson’s Notice of Appeal or supporting affidavit establish that the decision of the trial court was “in violation of or not in accordance with” applicable law or “clearly erroneous in view of the entire record on appeal” as Mr. Jackson failed to pay the rent on time. The decision of the trial court is therefore affirmed.
Although KTC 2.16.30(a) generally requires costs to be assessed against the losing party, in this case, KTHD did not appear to defend the appeal, and therefore cannot claim to have sustained any costs. Therefore, no costs or fees shall be taxed upon either party.
