ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
RODERICK E. BOHANNAN ROBERT D. HEPBURN
ANNE R. BABCOCK STEPHEN R. LEEDY
Indiana Legal Services, Inc. Terre Haute, Indiana
COURT OF APPEALS OF INDIANA
JAMES LOWERY, )
vs. ) No. 84A01-0411-CV-489
HOUSING AUTHORITY OF THE )
CITY OF TERRE HAUTE, )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Barbara L. Brugnaux, Judge
Cause No. 84D05-0407-SC-6785
May 4, 2005
OPINION - FOR PUBLICATION
Appellant-Defendant James Lowery (Lowery) appeals an order of eviction, upon petition by Appellee-Plaintiff
Housing Authority of the City of Terre Haute (Housing Authority).
Lowery presents two issues for review, which we restate as the following:
Whether Lowery was denied procedural due process in the termination of his tenancy
and rent subsidy; and
Whether Lowery was denied substantive due process because the Housing Authority failed to
show good cause for eviction.
Facts and Procedural History
Lowery, the custodial parent of two minor children, is disabled. He
and his minor children previously resided in the Morton Lewis Court Community, a
public housing complex owned by the Housing Authority. Lowerys rent was $51.00
per month. The one-year lease was executed on November 6, 2003, and
listed Lowery and his two minor children as the only members of the
household. The Low Income Housing Act of 1937, § 8, as amended,
42 U.S.C.A. § 1437 (the Act), dictated the terms of the lease, which
prohibited unlisted tenants or boarders and criminal activity.
On March 30, 2004, Detective Wallace of the Terre Haute Police Department investigated
a complaint that Lowerys eighteen-year-old stepson, Joshua Peak (Peak) caused a disturbance at
Oubache Elementary School, which was located adjacent to the Morton Lewis complex.
Detective Wallace advised Housing Authority property manager Patricia McGee (McGee) that Peak appeared
to be living at Lowerys apartment. On March 31, 2004, McGee verbally
warned Lowery that Peak was not allowed to reside in Lowerys apartment.
That same day, McGee sent Lowery a letter summarizing the conversation.
See footnote On
April 8, 2004, Lowery met with McGee and discussed the situation. According
to McGee, Lowery stated that he didnt know how to make Peak leave.
On April 27, 2004, Detective Walls again contacted McGee to apprise her of
another disturbance involving Peak and students at the elementary school, and informed her
that Peak was living at Lowerys apartment. That same day, McGee advised
Lowery in writing that Peak was not permitted at Lowerys apartment, and that
Lowerys lease would be terminated if Peak was found on the premises.
The letter was dispatched to Lowery via certified mail, and Lowery signed the
postal service receipt on April 28, 2004. The letter provided in pertinent
part as follows:
Mr. Joshua Peak is not allowed on the premises. He is not
a tenant and I am warning you that if he is found on
the Terre Haute Housing Authoritys property, the Terre Haute Police Department will be
called to remove him if necessary. I have informed investigators of this.
If at any time I receive verification that you are again allowing
Mr. Peak or any other unauthorized boarders, your lease will immediately terminate and
I will inform the proper agencies of my intent to evict you.
(Appellees App. 6). On the same day that Lowery received the certified
letter, McGee witnessed an altercation in which several young men were threatening Peak,
who was standing outside Lowerys apartment. McGee called the police, and also
spoke with Lowery. When McGee questioned Lowery as to why Peak was there,
Lowery indicated, he had let him stay there at his apartment.
At McGees initiation, the Housing Authority sent Lowery a Notice of
Lease Termination, dated April 28, 2004, citing Lowerys non-compliance with paragraph X of
the lease, which provides in pertinent part as follows:
Tenant shall be obligated
(b) Not to give accommodation to boarders or lodgers;
To act, and cause household members or guests to act in a manner
Not disturb other residents peaceful enjoyment of their accommodations; and
Be conducive to maintaining all properties in a decent, safe, and sanitary condition.
(o) To assure that Tenant, any member of the household, a guest, or another
person under Tenant[s] control, shall not engage in:
a. Any criminal activity that threatens the health, safety, or right to peaceful enjoyment
of the housing premises by other residents or employees of the Landlord and/or
(Appellees App. 7.)
Discussion and Decision
On May 3, 2004, Lowery met with McGee and advised her that he
had gotten rid of his unauthorized boarder. (Tr. 24.) McGee informed
Lowery that he had a right to request a hearing before a hearing
officer and that his request for a hearing should be made within ten
days of receiving his notice of termination (which was dated April 28, 2004).
On May 18, 2004, the Housing Authority received Lowerys letter requesting a
hearing. McGees supervisor, Kevin Wells, advised Lowery that his request was untimely.
On July 15, 2004, the Housing Authority filed a Complaint for Possession of
Real Estate in small claims court. A hearing was held on August
31, 2004. On October 14, 2004, the trial court granted an Order
of Eviction, stating in pertinent part:
Defendant had ample notice that his stepson was not to be on Housing
Authority property and that he could not or would not comply with that
requirement which was a valid and reasonable term of his occupancy.
Lowery now appeals.
I. Standard of Review
The claim was tried before the bench in small claims court. We
review for clear error. Flint v. Hopkins, 720 N.E.2d 1230 (Ind. Ct. App.
1999). A judgment in favor of a party having the burden of
proof will be affirmed if the evidence was such that a reasonable trier
of fact could conclude that the elements of the claim were established by
a preponderance of the evidence. Id. We presume the trial court
correctly applied the law. Barber v. Echo Lake Mobile Home Comm., 759
N.E.2d 253, 255 (Ind. Ct. App. 2001). Additionally, we give due regard
to the trial courts opportunity to judge the credibility of the witnesses, and
do not reweigh the evidence, but consider only the evidence and reasonable inferences
therefrom that support the trial courts judgment. Id. A deferential standard
of review is particularly appropriate in small claims actions, where trials are informal,
with the sole objective of dispensing speedy justice according to the rules of
substantive law. Id.
B. Analysis Procedural Due Process
Initially, Lowery asserts that he had a right to reasonable accommodation of visitors,
but was denied procedural due process when his stepson was placed on a
list of persons banned from entering the public housing complex, without a hearing.
The letter from McGee barring Peak from the apartment was not accompanied
by notice of hearing procedures. Lowery claims he had a right to
a formal hearing, and should have been informed in writing as to how
he could request a formal hearing. 24 C.F.R. § 966.53(c) provides as
Elements of due process shall mean an eviction action or a termination of
tenancy in a State or local court in which the following procedural safeguards
adequate notice to the tenant of the grounds for terminating the tenancy and
Right of the tenant to be represented by counsel;
Opportunity for the tenant to refute the evidence presented by the PHA including
the right to confront and cross-examine witnesses and to present any affirmative legal
or equitable defense which the tenant may have;
A decision on the merits.
Lowery appears to argue that the full panoply of procedural safeguards was triggered
by the Housing Authority management decision to ban Peak, as opposed to the
action for termination of tenancy. However, Lowery did not timely request a
grievance hearing following his notice of lease termination as permitted by the Act,
which would presumably have afforded him the opportunity to challenge the predicate actions
of the Housing Authority. Moreover, while Lowery testified at trial that he
wasnt given the opportunity to appeal the decision to ban Peak as a
visitor, he did not offer any authority for his claimed entitlement to specific
notice and hearing in regard to visitation rights as opposed to tenancy rights.
Lowery did not timely avail himself of his right to an administrative hearing
prior to the initiation of eviction proceedings in state court. The Housing
Authority filed a petition for possession of premises, and Lowery pursued no claim
against the Housing Authority. As such, the sole issue actually tried in
small claims court was whether Lowery must surrender his leased premises because he
breached his lease. Lowery has not established that he was denied procedural
due process in the eviction.
II. Substantive Due Process Claim Good Cause for Eviction
Due process under the Fourteenth Amendment requires a determination of good cause to
support termination of public housing tenancy during the term of the lease.
Numme v. Lemon, 741 N.Y.S.2d 384 (2002). When a housing authority decides
to terminate a tenancy or subsidy, it must provide the tenant a written
notice stating the specific grounds for termination. 24 C.F.R. 966.4(1)(3)(C)(ii). A
public housing tenant may be evicted upon a showing of good cause.
24 C.F.R. 966.4(l)(2). Grounds for termination include serious or repeated violation of
material terms of the lease[.] 24 C.F.R. 966.4(l)(2)(i). Also included is
criminal activity. 24 C.F.R. 966.4(l)(2)(B)(iii)(A).
Pursuant to 24 C.F.R. 966.4(1)(5)(ii)(A), a public housing lease must provide that any
criminal activity by a covered person that threatens the health, safety, or right
to peaceful enjoyment of the premises by other residents . . . is
grounds for termination of tenancy. 24 C.F.R. 5.100 defines a covered person
as a tenant, any member of the tenants household, a guest or another
person under the tenants control.
Although Lowery did not admit that Peak engaged in criminal activity, Lowery admitted
that he allowed his stepson to board with him for probably about a
month. (Tr. 93.) However, Lowery argues that he could not control
his Peaks behavior, and thus the eviction of himself and his dependent children
is punitive rather than for good cause. Too, he claims he evicted
Peak as soon as he was made aware it was in violation of
his lease. Lowery further contends that he should not be held strictly
liable for behavior of another adult whom he could not control, and that
the Housing Authority management defined criminal activity too expansively.
Lowery claims it is debatable whether or not Congress intended to impose a
strict liability standard making tenants liable for the actions of covered persons.
Reply Br. at 10. His argument is apparently predicated upon the decision
Delaware Co. Housing Authority v. Bishop, 749 A.2d 997 (Pa. Comm. 2000),
to which he directed the trial courts attention. Therein, a county housing
authority sought to evict a public housing tenant whose adult sons had committed
rape and possessed drugs. The commonwealth court refuse[d] to hold a tenant
strictly liable for unforeseeable criminal acts committed, without the tenants knowledge, by family
members who are not under the tenants control. Id. at 1002.
In part, the commonwealth court relied upon Charlotte Housing Auth. v. Patterson, 120
N.C. App. 552, 464 S.E.2d 68 (1995), wherein the Court observed that 42
U.S.C. § 1437d(l) (requiring a lease term that criminal drug activity by household
member or guest under tenants control is cause for termination of tenancy) was
not intended to impose a type of strict liability whereby the tenant is
responsible for all criminal acts regardless of knowledge and ability to control them.
However, in Dept of Housing and Urban Develop. v. Rucker, 535 U.S.
125 (2002), the Court held that 42 U.S.C. § 1437d(1) unambiguously requires lease
terms that vest local public housing authorities with the discretion to evict tenants
for the drug-related activity of household members and guests whether or not the
tenant knew, or should have known, about the activity. Id. at 130.
A household member or guest is one to whom access to the
premises has been granted by the tenant. Id. at 131.
It does not appear that Peaks problems are drug-related, arguably invoking the strict
liability implications of
Rucker. Moreover, it is not apparent from the record
that Lowery could exert physical control over Peak. It may be unduly
burdensome to expect a physically infirm individual to restrain a young and able-bodied
individual from entering any part of the Housing Authority premises. In this
case, the Housing Authority apparently expected Lowery to do so, although the Housing
Authority admittedly failed to seek a restraining order despite breaches of the peace.
Nevertheless, regardless of whether Peak engaged in criminal activity or Lowery was
able to prevent Peaks alleged criminal activity, the record reveals an alternative basis
for Lowerys eviction.
Lowery admittedly permitted Peak to remain in Lowerys apartment for about a month,
despite the prohibition against boarders, and did not seek to add Peak as
a named tenant. Lowerys generous rent subsidy was calculated upon the assumption
that he was the only adult in the household. Moreover, there is
evidence from which the trial court could infer that Lowery allowed or invited
Peak to return to the apartment despite his protestations to McGee. We
will affirm a general judgment on any legal theory supported by the evidence
introduced at trial.
D.A.X., Inc. v. Employers Ins. of Wausau, 659 N.E.2d
1150, 1155 (Ind. Ct. App. 1996), trans. denied. Accordingly, the Housing Authority
presented sufficient evidence to establish its claim for eviction by a preponderance of
BAKER, J., and NAJAM, J., concur.
On April 13, 2005, we held oral argument in this matter at
St. Mary of the Woods College in St. Mary of the Woods, Indiana.
We wish to thank St. Mary of the Woods College and its
staff for their hospitality.
Footnote: McGees letter to Lowery was as follows: This is a follow
up letter to you regarding JOSH PEAK and my direct warning to you
not to allow him on the premises nor to reside in your apartment.
Please do not put your housing in jeopardy. You stated you
understood and there would be no more incidents. I will terminate your
lease if you chose [sic] to continue to allow this. I will
be monitoring the situation and trust you will do the right thing.
(Appellees App. 5.)
Footnote: Lowery did not assert a § 1983 claim that the Housing Authority
violated his right to reasonable accommodation of visitors under the Act.
e.g., Diggs v. Housing Authority of the City of Frederick, 67 F.Supp.2d 522
(D. Md. 1999).