Petition for Writ of Certiorari — Erika Jacobs, Petitioner v. 35 West Apartments

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IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

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ERIKA JACOBS,

STATE of 9kl|homa

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Appellant,

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Jan 21 20h

JOHN D. ^ADp^N

No. 119,242

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35 WEST APARTMENTS,

Appellee.

CLERK j

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ORDER

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On the Court’s own motion, this appeal is hereby dismissed as ilntinjiely

because it was commenced more than thirty (30) days after the filing of tHe older

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appealed from. 12 O.S. Supp. 2017, § 990A.

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When a petition in error is mailed in accordance with Oklahoma Supreme

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Court Rule 1.4(c), the pauper’s affidavit or cost deposit must be (1) included m the

same package as the petition in error, or (2) separately mailed in accordance With

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Rule 1.4, or (3) delivered oveMhe-counter to the Supreme Court clerk withinj the

same 30-day time period required by § 990A. Lear Siegler Services, inc. v> Nance,

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2001 OK 36, 3,22 P.3d 1213 (appeal dismissed as untimely where petition in error

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was timely mailed but cost deposit not delivered until after 30-day deadline!). $ee

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Oklahoma Supreme Court Rules 1.4(c) and 1.23.

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DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS

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25TH DAY OF JANUARY, 2021.

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DARBY, C.J., KANE, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COiyiBSj,

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GURICH, and ROWE, JJ. - Concur

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COLBERT, J. - Not present

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IN THE DISTRICT OF CLEVELAND COUNTY

STATE OF OKLAHOMA

ERICA JACOBS,

STATE OF OKLAHOMA!

CLEVELAND COUNTY JSs-

FILE^D

Plaintiff,

vs.

NOV 02)2020 Case No- sc-19-2102

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35 WEST APARTMENTS,

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in the offic^ of the

DefeMnQ!erk MAR,l}YN WILLIAMS

COURT ORDER

A small claims hearing was held in this matter on October 5, 2020, with Plaintiff Erica

Jacobs present by phone and with 35 West Apartments present through its counsel, Charles

B. Sexson, and its representative. The Court heard evidence and testimony from all parties

and asked numerous questions of all parties. Plaintiff also sent additional documents by email

following the hearing for the Court’s determination, and the Court refrained from entering a

final decision until Plaintiff submitted any additional evidence.

After review of all the

testimony and evidence, the Court finds as follows:

Plaintiff has filed this claim seeking $2,110.00 for “non-repair and breach of contract of

the lease agreement.” Plaintiff seeks reimbursement for the monies she has expended in

renting the property in question and submitted several exhibits in support for her argument.

Exhibits “A-E” were filed into the Court record on April 22, 2019.

Defendant filed a

counterclaim requesting an amount of $2,903.00 for breach of the lease agreement, claiming

that Plaintiff owed for back rent due and for the early-termination fee of $2000, as set out in

the Lease Agreement. In response, Plaintiff claimed that the condition of the unit was such

that she should be excused from her lease, and she submitted additional documents to the

Court for the hearing, since Plaintiff could only be present over telephone. These have been

filed as well and marked Exhibit “F”. The Court reviewed all these documents prior to making

its final ruling herein.

The testimony and evidence presented for the hearing showed that, during her

tenancy, Plaintiff requested that repairs be made to the property. These requests are set

forth in the documents included as Exhibit "A”. For purposes of this decision, the central

complaint made was regarding “vents still giving off a moldy smell that makes the tenant

cough and ill,” but other requests centered on unclean water, a faulty washing machine, and

unfinished baseboards. She also requested deductions in her rent for the condition of the

property and Defendant’s inaction in remedying these allegedly poor conditions.

Defendant responded to the request for repairs and some work was done, specifically,

Defendant stated that the air vents were cleaned. See Exhibit “B”. However, it was not

sufficient for Plaintiff, and she ultimately terminated the lease, sending notification on April

12, 2019. See Exhibit “C”.

Ultimately, Plaintiff wants relief for terminating the lease agreement, and she is

specifically relying on 41 O.S. § 121:

A. Except as otherwise provided in this act, if there is a material noncompliance

by the landlord with the terms of the rental agreement or a noncompliance

with any of the provisions of Section 18 of this act which noncompliance

materially affects health or safety, the tenant may deliver to the landlord a

written notice specifying the acts and omissions constituting the breach and

that the rental agreement will terminate upon a date not less than thirty (30)

days after receipt of the notice if the breach is not remedied within fourteen

(14) days, and thereafter the rental agreement shall so terminate as provided in

the notice unless the landlord adequately remedies the breach within the time

specified.

D. Except as otherwise provided in this act, if there is a noncompliance by the

landlord with the terms of the rental agreement or Section 18 of this act, which

noncompliance renders the dwelling unit uninhabitable or poses an imminent

threat to the health and safety of any occupant of the dwelling unit and which

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noncompliance is not remedied as promptly as conditions require, the tenant

may immediately terminate the rental agreement upon written notice to the

landlord which notice specifies the noncompliance.

Plaintiff is claiming that Defendant’s inaction and failure to remedy the issues with the

property rendered the dwelling unit uninhabitable and posed an imminent threat to her

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health and safety. In addition to questioning the particular issues Plaintiff had with the unit,

the Court also inquired extensively of Plaintiff regarding her health and safety. Plaintiff

testified that she was ill and visited with a Dr. McCarter on April 22, 2019. She did not provide

records from that visit, but did provide proof of medications prescribed, particularly,

Esomeprazole Magnesium and Terbinafine.

Plaintiff did not present any testimony or

evidence proving beyond a preponderance of the evidence that any illness she was dealing

with was directly caused by any of the conditions of her apartment, nor is there anything

proving that the medications were necessary because of Plaintiff's living conditions. For

example, the Court has no evidence that dangerous mold was present in the apartment or

that any such mold threatened Plaintiff’s health and safety, nor is there any evidence that

Defendant was aware of the mold and failed to remediate it.

Unfortunately for Plaintiff, the statute’s language is harsh and unsparing.

“Uninhabitable” indicates that the property is not fit for any person to live in, and “an

imminent threat” means that it is likely that Plaintiff’s health and safety is very close to danger

specifically because of the conditions of the property. It is difficult to prove these severe

conditions, and Plaintiff simply has not succeeded in meeting her burden.

Plaintiff has every right to vacate the premises and terminate her end of the lease

agreement.

However, she has to face the consequences of that decision and is held

responsible for the contractual terms agreed to at the time she began her tenancy, unless she

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is excused from those terms. Under the lease agreement, the relevant language states as

follows:

26. Lease Buy-Out: In the event Residents desire to terminate this Agreement

prior to the end of the Initial Term, Residents may do so by giving thirty (30)

days written notice, paying all amounts due or which would fall due prior to

move-out... and paying an agreed upon Lease Buy-Out Amount of the lesser of

$2,000; or, the full amount due under the remaining term of the lease.

Therefore, it is clear that Plaintiff agreed to pay the lesser of $2000 or the full amount

due under the remaining term of the lease if she desired to terminate the Agreement prior to

the end of the term. According to both parties, the lesser amount is $2000, which is what

Defendant is seeking here.

The key question here is whether Plaintiff was legally permitted to terminate the lease

without having to pay the Lease Buy-Out, hence her argument that 41 O.S. § 121(D) is

applicable. Plaintiff is tasked with proving her case beyond a preponderance of the evidence

and she has failed to do so regarding excusal from the $2000 amount owed. However, the

Court finds that Plaintiff is entitled some deductions to her rent due to the entire situation she

was facing. Therefore, from the amount of one months’ rent, $795.00, this Court is giving

Plaintiff $600 worth of credit. The total amount of the judgment in favor of Defendant will be

$2,195.00.

The Court wanted to address a few side issues raised by Plaintiff prior to and during

the hearing. At a few different points during the hearing, namely after this Court announced

a portion of its ruling, Plaintiff requested that her case be assigned to another judge. Initially,

the Honorable Jequita Napoli recused from this matter on May 24, 2019, and this matter was

reassigned to former judge Steven Stice on June 13, 2019. For unknown reasons, this matter

was not set for hearing before Judge Stice. After his small claims cases were reassigned to

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this Court in or around May 2020, Plaintiff requested a hearing and one was set for September

23, 2020 at 8:30 a.m.

At that time, Plaintiff was advised that she would need to provide notice to Defendant,

and she objected, arguing that she could not afford to do so by certified mail. She

informed that the notice did not have to be by certified mail, but still objected.

was

She had

complaints about communication with this Court's office and the court clerk's office about

the service of a new hearing date to Defendant. This Court’s office contacted Defendant's

attorney with the Court date and because of a conflict in schedule, the hearing

was reset a

few days to September 25, 2020. Plaintiff then requested a continuance from the

new court

date, which led to the October 5, 2020 setting, with all parties available.

This Court did not find reasonable cause to reassign this matter or for it to

recuse as

this Court has had no previous dealings with either of the parties concerning the litigation at

hand that would cause the Court to be biased against Plaintiff. Additionally, just because this

Court announced a ruling unfavorable to Plaintiff does not justify reassignment after the

hearing had already been conducted.

Sgp>fCBROCKMAf^—^

Special District Judge

t HEREBY CERTIFY THAT THE FOREGOING IS A

APPEARS ON-RECORD IN THE COURT CLERKS

OFFICE OF CLEVELAND''COUNTY, OKLAHOMA.

WITNESS

OF

MARILYN WILLIAMS COUR,

BY

* DEPUTY

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STATE OF OKLAHOMA

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Tj\JOHN^D HADDEN HE SUPREME C0URT 0F THE STATE 0F OKLAHOMA^^ ^ ^

CLERK

Wednesday, December 9, 2020

THE CLERK IS DIRECTED TO ENTER THE FOLLOWING ORDERS OF THE

COURT:

118,523-

BETTY LIVELY v. CITY OF DUNCAN

Appellee is directed to file an amended petition for certiorari, within -10

days of the date of this order, with the opinion-of the Court of Civil

Appeals attached. The amended petition shall not include any other

attachments or appendices. Okla. Supreme Court Rule 1.179(a)(4), 12

O.S. Supp. 2013, app. 1. The time to file an answer to the petition for

certiorari is not extended.

119,242-

ERICA JACOBS v. 35 WEST APARTMENTS

Appellant is directed to show cause, on or before January 8,2021, why

this appeal should not be dismissed as untimely because it appears to

have been commenced more than 30 days after the filing of the

November 2, 2020 order appealed. 12 O.S. § 990A.

The petition in error did not include a pauper’s affidavit or cost deposit

in conformance with Oklahoma Supreme Court Rule 1.4(c) (petition

shall not be deemed filed on the date of mailing unless full amount of

the cost deposit or a properly executed pauper’s affidavit has also been

mailed or delivered to the court clerk within the time period for

perfecting the appeal). See also Oklahoma Supreme Court Rule

1.23(b); Matter of K. L F., 1994 OK 66, 878 P.2d 1067.

The Court notes the order appealed does not contain a certificate of

mailing showing the date the order was mailed to Appellant. Therefore,

Appellant is directed to state in the response the date on which

Appellant received actual notice of the judgment. 12 O.S. § 990A.

Facts provided in the response which are not in the record shall be

supported by affidavit.

CHIEF JUSTICE

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Additional material

from this filing is

available in the

Clerk's Office.