Ervin v. Stackhouse

64 So. 3d 666, 2010 Ala. Civ. App. LEXIS 363, 2010 WL 4910871
CourtCourt of Civil Appeals of Alabama
DecidedDecember 3, 2010
Docket2081127
StatusPublished
Cited by4 cases

This text of 64 So. 3d 666 (Ervin v. Stackhouse) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ervin v. Stackhouse, 64 So. 3d 666, 2010 Ala. Civ. App. LEXIS 363, 2010 WL 4910871 (Ala. Ct. App. 2010).

Opinion

PITTMAN, Judge.

Monty Ervin appeals from a judgment determining that he is liable to Jennifer Stackhouse for violations of the Alabama Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala.Code 1975 (“the Act”).

Stackhouse decided to lease an apartment (“the apartment”) from Ervin, who was the landlord. On December 27, 2007, she entered into a lease agreement styled “Transient Week to Week Lease Agreement” with Ervin and an entity named Southern Realty.1 The lease agreement provided for a payment of $100 as a security deposit and weekly rent payments of $100. The lease agreement stipulated that each weekly rent payment of $100 included gas, electricity, water, garbage, and sewer charges, if any. The lease agreement also stated that Stackhouse had a monthly utility allotment of $100 and that if, at any time, the monthly utility bills totaled more than $100, Stackhouse would be responsible for the difference. In addition to other terms, the lease agreement also contained a pet-deposit fee of $300 per week for each pet kept indoors.

The record indicates that Stackhouse paid her weekly rent on January 25, 2008, for the week ending January 31. On January 26, 2008, one of Ervin’s secretaries entered the apartment and took pictures of two cats, food dishes, and a litter box in Stackhouse’s kitchen. Ervin’s secretary informed Stackhouse, both orally and in writing, that she was in violation of the pet-deposit provision of the lease agreement and that failure to pay $600 by the close of business on January 28, 2008, [668]*668would result in her electricity being disconnected. Subsequently, the electricity service to the apartment was discontinued on January 28, then reinstated, then discontinued again on January 31.

On February 1, 2008, Stackhouse filed a complaint against Ervin and Southern Realty in the Houston District Court seeking injunctive relief and monetary damages for Ervin’s refusal to provide electricity service to the apartment pursuant to the lease agreement and alleging that, as a result, she had been wrongfully evicted from the apartment. That action was docketed as case no. DV-08-60 and was transferred by subsequent motion to the Houston Circuit Court the following week, where it was renumbered as ease no. CV-08-60; a temporary injunction preventing Stackhouse’s eviction was entered after the transfer was completed. On February 4, 2008, Ervin filed an unlawful-detainer action, pursuant to § 6-6-310, Ala.Code 1975, in the district court seeking to recover possession of the leased premises because, he claimed, Stackhouse was in violation of the pet-deposit provision of the lease agreement; that action was docketed as case no. DV-08-127. Beginning sometime during the month of February and continuing until March 14, 2008, Stackhouse was incarcerated on unrelated charges. Subsequent to Stackhouse’s arrest, the apartment was burglarized and vandalized; Stackhouse’s mother testified that someone in Ervin’s office had called her to come and collect any family belongings in February before Ervin boarded up the apartment to prevent further damage.

Although Stackhouse had received a preliminary injunction to prevent her eviction from the apartment, the circuit court dissolved that injunction on March 3, 2008, and set the matter for a final hearing in April. The following day, the district court conducted an ore tenus proceeding on Ervin’s unlawful-detainer complaint, and that court took the matter under advisement without issuing a writ of possession. Subsequently, on March 13, 2008, the district court entered a judgment in favor of Stackhouse, in which that court stated, in pertinent part, “that the lease term authorizing [Ervin] to ‘cut off the utilities upon [Stackhousej’s failure to pay rent is an unlawful self-help eviction or ouster of the tenant by the landlord and is against public policy.” No writ of possession was issued.

On March 14, 2008, acting without a writ of possession, Ervin directed his employees to move all remaining personal property from the apartment and to stack those items on the street curb. The testimony was conflicting regarding whether any items were damaged during the move; at least two witnesses, including Stackhouse’s mother, testified that most of the items removed from the apartment had already been vandalized during the February burglary and were not further damaged by placement outside the apartment.

On March 18, 2008, Ervin appealed from the district court’s judgment to the circuit court; on appeal, that case was docketed as case no. CV-08-127. On July 7, 2008, following numerous continuances, the circuit court entered an order consolidating Stackhouse’s sole remaining claim, which sought money damages, with Ervin’s unlawful-detainer appeal. In addition, Stack-house filed a motion seeking a determination that Ervin was in contempt of court for having removed her personal property from the apartment following the district court’s determination that Ervin was not entitled to a writ of possession. After several delays, the consolidated cases were finally tried on April 23, 2009. At that ore tenus proceeding, both Ervin and Stack-house testified, and offered documentary evidence, regarding their contentions and [669]*669defenses as to the other party’s complaint. In addition, John Peacock, an employee of Ervin’s; Lawrence Wilson, a freelance photographer; and Cathy Campbell, Stackhouse’s mother, testified.

Peacock and Wilson testified regarding the events of March 14, 2008, the day that Ervin had caused Stackhouse’s belongings to be removed from the apartment. Campbell testified regarding her visit to the “ransacked” apartment in February 2008 after the burglary, which she confused with the physical eviction that had occurred on March 14, 2008. Peacock stated that he had been called to the apartment by Ervin to give Stackhouse access to the premises to remove her possessions from the property. Peacock was unable to identify Campbell as having been on the premises that day; moreover, he stated that Stackhouse had told him that she did not want any of the personal property but that she instead wanted to reoccupy the apartment. Wilson stated that he had been on the same street taking pictures to upload to the “Google Maps” Web site; he testified that he had thought the apartment appeared boarded up, which seemed unusual, so he had taken some pictures of the scene.

Stackhouse testified that she had never intended to vacate the premises, that she had told Ervin that she was consulting a lawyer, and that after she had informed Ervin that she would not leave he had disconnected the electric service to the apartment. Stackhouse denied having given Ervin written notice that she would vacate the premises at the end of January; she stated that she had never seen the document that Ervin claimed was her written notice that she would be vacating the apartment by the end of the day on January 31. She testified that one of Ervin’s secretaries had informed her that she needed to pay the weekly pet deposit or risk eviction. Stackhouse claimed that the animals in her apartment had been brought inside the apartment only one night because of cold weather.

Ervin testified that all the actions relied upon by the district court to determine that Ervin had unlawfully evicted Stack-house had occurred after the date and time that, he said, Stackhouse had notified Er-vin in writing that she would vacate the apartment. Furthermore, Ervin stated that all the actions he had taken were proper and in compliance with specific provisions of the parties’ lease agreement.

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Cite This Page — Counsel Stack

Bluebook (online)
64 So. 3d 666, 2010 Ala. Civ. App. LEXIS 363, 2010 WL 4910871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ervin-v-stackhouse-alacivapp-2010.