Asbury v. Mauk

687 P.2d 31, 9 Kan. App. 2d 699, 47 A.L.R. 4th 851, 1984 Kan. App. LEXIS 345, 39 Empl. Prac. Dec. (CCH) 35,898
CourtCourt of Appeals of Kansas
DecidedSeptember 13, 1984
DocketNo. 55,707
StatusPublished
Cited by1 cases

This text of 687 P.2d 31 (Asbury v. Mauk) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asbury v. Mauk, 687 P.2d 31, 9 Kan. App. 2d 699, 47 A.L.R. 4th 851, 1984 Kan. App. LEXIS 345, 39 Empl. Prac. Dec. (CCH) 35,898 (kanctapp 1984).

Opinion

Rees, J.:

This is an appeal from a money judgment entered following plaintiff s prosecution of a garnishment proceeding to enforce a money judgment arising out of a residential landlord and tenant dispute. Plaintiff Asbury is the landlord and defendants Mauk are the tenants. Various questions concerning the Kansas garnishment statutes, K.S.A. 60-714 et seq., and the residential landlord and tenant act, K.S.A. 58-2540 et seq., are raised. We will address only one of the denominated issues on appeal because we conclude its resolution is dispositive.

There appear to be no substantial differences as to the presently material facts, most of which we have deduced from the briefs because of the brevity of the record.

Pursuant to a December 12, 1981, written lease, the tenants took possession of the subject premises. The lease was for a term of one year. The agreed monthly rental was $390 to be paid on the 12th day of each month. A. required security deposit of $250 was paid by the tenants. The lease included the following provisions:

“Lessee has deposited with Lessor the sum of [$250] as a security deposit for [700]*700application against the amount of damages which Lessor may suffer by reason of Lessee’s noncompliance with state law and this agreement. THE SECURITY DEPOSIT SHALL BE FORFEITED TO LESSOR IF LESSEE USES OR APPLIES THE SECURITY DEPOSIT AT ANY TIME IN LIEU OF PAYMENT OF RENT, AND LESSOR MAY RECOVER THE RENT DUE IN ADDITION TO RETAINING THE SECURITY DEPOSIT.”

Some ten months into the lease term, on October 19, 1982, the landlord served a written notice on the tenants terminating the tenancy for nonpayment of rent. The tenants had paid only $350 of the rent due to be paid September 12. They had failed to pay any of the rent due October 12. They subsequently failed to make the rent payment due November 12.

On November 19, the landlord instituted a forcible detainer action under Chapter 61, Code of Civil Procedure for Limited Actions. The landlord asked for recovery of the $820 in unpaid rent and recovery of possession of the premises. The tenants did not answer. On December 13, a default judgment was entered. It awarded the landlord $820 and recovery of possession. The money judgment was later reduced to $430 because the tenants had paid $390 to the landlord on November 15.

On December 8, five days prior to the entry of the default judgment, the tenants vacated the premises. On about December 14, the day after default judgment was entered, the tenants telephoned the landlord. Application of the $250 security deposit toward satisfaction of the judgment was discussed. The parties do not agree as to the particulars of this conversation, but the landlord asked the tenants to contact the landlord’s attorney. The tenants did not contact the attorney until January 13, 1983. The substance of that conversation also is not clear although it appears the attorney rejected an offer or suggestion by the tenants that the $250 deposit held by the landlord be applied to the indebtedness.

One of the tenants had an account at Franklin Savings, Spring Hill, Kansas. As the result of a garnishment order served on it on December 28, 1982, Franklin Savings paid into court $160.50. That sum was subsequently paid out to the landlord.

It appears one tenant was or had been employed at the University of Kansas Medical Center (KUMC). A garnishment order was served on KUMC on January 7,1988 The answer of KUMC, filed January 26, stated that $180.78 was being held by it. These funds have not been paid in by the garnishee KUMC.

[701]*701On February 2, tenants filed a pleading entitled “Answer of Defendants and Motion to Dissolve Garnishment.” This was the tenants’ first appearance of record. The tenants asserted the landlord had failed to return their security deposit or deliver written notice of itemized damages within thirty days after termination of the lease. See K.S.A. 58-2550(b). The tenants asked that they be granted recovery of the $250 deposit, damages in an amount equal to one and one-half times the deposit pursuant to K.S.A. 58-2550(c), and dissolution of the mentioned KUMC garnishment and other garnishment orders that had been issued to Franklin Savings and KUMC in response to requests filed by the landlord on January 27.

On February 8, the landlord’s attorney sent to the tenants an itemized list of damages totaling $2,429.97. The tenants also were advised that their $250 security deposit “was forfeited by your use and application of said deposit in lieu of payment of rent.”

A hearing on the tenants’ motion was held on February 11. No evidence was presented. Counsel for both parties simply presented oral argument, none of which appears in the record on appeal. Legal memoranda were subsequently submitted. Neither memorandum is in the record on appeal. Thereafter, the trial judge issued a memorandum decision. He first found that the tenants’ claims concerning the security deposit could properly be raised in proceedings in aid of execution of the landlord’s judgment. He then rejected the landlord’s claim that the tenants had forfeited their security deposit by applying it toward rent, holding that the forfeiture provision in the lease was not applicable since the landlord’s claim for unpaid rent had been reduced to judgment. The trial judge held that the landlord had failed to send tenants a timely notice of itemized damages. He ordered the landlord to return the $250 deposit and pay statutory damages in the amount of one and one-half times the deposit, or $375. Judgment was entered in favor of tenants in the amount of $625, the total of these two sums. The landlord’s December judgment of $430, which had become $476.14 with costs and interest added, was offset against the tenants’ $625 judgment, leaving $148.86 owing to tenants. That balance was then increased by the $160.50 the landlord obtained through garnishment of the Franklin Savings account. The result is a judgment in [702]*702favor of the tenants in the amount of $309.36, and it is from this judgment that this appeal is brought.

The landlord raises four principal issues on appeal: Did the trial judge err when he (1) resolved controverted factual issues without affording the landlord an opportunity to present evidence; (2) permitted the tenants to raise claims in response to the garnishment; (3) held that the tenants were entitled to a refund of their security deposit plus damages on the ground the landlord failed to deliver a timely notice of itemized damages; and (4) ruled that the landlord waived her right to claim damages for failure to send timely notice of damages? Our resolution of the second issue is dispositive of this appeal and eliminates need for discussion of the other issues.

Was it proper to consider the tenants’ security deposit claim in the proceeding for enforcement of the money judgment by garnishment? We conclude it was not.

K.S.A. 61-2008

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Bluebook (online)
687 P.2d 31, 9 Kan. App. 2d 699, 47 A.L.R. 4th 851, 1984 Kan. App. LEXIS 345, 39 Empl. Prac. Dec. (CCH) 35,898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asbury-v-mauk-kanctapp-1984.