*1 improper therefore hold it was for grant summary judgment trial court to genuine issue of material fact ex- when a Du-Al knew or should have

ists as when defects, wall known about the construction

We reverse and remand case to the proceedings. further

trial court for C.J.,

MILLER, WUEST, JJ., SABERS,

HENDERSON and concur.

AMUNDSON, J., disqualified. CONSTRUCTION,

ARNOLD MURRAY Appellee,

Plaintiff and

v. WITTROCK,

Billie Defendant Jo Appellant.

No. 17652.

Supreme Court of Dakota. South April

Considered on Briefs 1992. July

Decided 1992.

Douglas Cummings, Cummings Legal P. Clinic, Falls, plaintiff appel- Sioux lee. Metzgar, East

Bill Froke and Matthew R. Falls, Services, for de- Legal River Sioux appellant. fendant and AMUNDSON, Justice. (Wittrock) appeals

Billie Jo Wittrock judgment in favor of from trial court’s damages prior proceed res could with its determination that wall dismissal date to November jury If the judicata roof lawsuit. this lawsuit. bars affirmative, answers this in the the trial court *2 (AFDC) Dependent Children Families with (Company). Murray Arnold Construction per of month. On at in the amount $330 reverse and remand. occasion, inquired of least one Wittrock FACTS released from the Company if she could be Company re- payments. and cable apartment 1979, Company built an In release from those obli- fused to Wittrock Dakota, Falls, complex in Sioux South gations. Murray Nest.” Bonnie “Eagles known as Nest, Eagles manager for property is the 1991, February, In had some Wittrock Company. The general partner and is a apartment by Company, repairs done to her project financed with a Eagles Nest was Wittrock for the $136.87 which billed through the United States loan low-interest deducting After a credit balance work. Housing Devel- and Urban Department of previ- account which Wittrock had from an (HUD). In return for the low-inter- opment adding interest ously overpaid, and federally subsidized rent financing and repairs on the as charges, the balance due HUD, from Company received guarantees 1991, June, paid Wittrock was $111.59. of apart- Eagles Nest Company dedicated nine argues was intended for which she $111.59 federally housing ten- subsidized ments for payment Company applied the to rent. 8 New Construc- ants under HUD’s Section pay- then demanded rent repair work and program.

tion ment, subsequently failed Wittrock which pay. Hous- to Sioux Falls HUD contracted with (SFH) Authority to ing Redevelopment 11, 1991, Company served Wit- On June 8 New Construction administer the Section ten-day quit, and a trock with a notice Eagles Nest. This contractual

project at 21, complaint on 1991. June summons arrangement delegated certain administra- and counter- served an answer Wittrock other- to SFH which would tive functions August, set for 1991. claim and trial was by performed HUD. wise have been pay- any make further did not Wittrock action com- after this 1988, Company began leasing ments on August, menced, pay for the but did continue Eagles apart- Nest one of the subsidized monthly apartment her television and her three small chil- cable ments to Wittrock and had rent. signed a lease which dren. Wittrock Company’s attorney prepared by been trial, discipli- Company filed Prior to apart- in 1984. The lease set sometime Bar complaint Dakota nary with South with the Section 8 ment rent accordance attorney, against Wittrock's Association rules, allocating the New Construction housing law incompetent in alleging he was pay to amount which HUD would Notwithstanding this frivolous litigation. SFH,

through and the amount Wittrock held by Company, the court trial was action 1991, the amount In June of would 14, After August on 1991. as scheduled her paid Company for three-bed- Wittrock witnesses, reviewing the exhib- hearing the month, per while room was $33 counsel, its, considering arguments of month, a total paid per a decision from the trial court entered monthly rent of $490. possession granted immediate bench Trial court Company. premises re- of the with also Company’s lease Wittrock conclusions, findings, formal mandatory monthly entered its pay a quired her to 26, August 1991. Wit- judgment on per month and a garage charge of $80 August appeal her notice of on charge, trock filed mandatory monthly filed a motion with and then per month but in- in 1988 was $11 stay requesting a day, the same court on by June 1991. creased to $14 30, August On judgment. court’s actually paying approx- trial Wittrock granting entered an order this court per month in addition to imately $125 comply stay and directed Wittrock payment, for a per month HUD’s $457 Wittrock specific conditions. certain payment of Wit- with $582. total lease and, Sep- conditions complied with the Aid to source of income was trock’s sole ap- an Development. Therefore, tember this court entered order Urban proving compliance. agreement As a signed by form of result of the Defen- orders, judgment our trial court’s dant this matter was approved by the stayed tenancy. Department remains in Housing and Urban De- merits velopment We turn now to the of Wittrock’s Sioux Falls *3 appeal. Redevelopment and Commission. We therefore look to the record to deter- ISSUES mine whether the supports evidence this (1) trial Whether court erred when it de- finding. Tramp, supra. Company’s termined complies Company argues that the form of regulations? with HUD the lease it used garage contained the and

(2) Whether trial court erred when it al- charges approved HUD, and was by Company lowed to evict Wittrock for thus, complied it regulations. with federal nonpayment of rent? The HUD Handbook sets out various ad requirements ministrative to ensure con STANDARD OF REVIEW formity with federal law. The HUD Hand that, jurisdiction It is well settled in this specifically book states: court, by findings review this of fact parking spaces, “Fees for connection to a they clearly will not set aside unless be are community antenna, and other erroneous, regard given and due will be optional, services must be type and the judge credibility the trial court to of wit and amount of the fee ap- must be By Through nesses. State v. DOT proved by writing (Emphasis in HUD.” Garvin, (S.D.1990). 456 N.W.2d 779 added.) 4350.3, page HUD Handbook 4- standard, applying this we will not over ¶6, 4-12. unless, turn the trial court’s decision after presented The evidence at trial reflects evidence, reviewing all we are left with a in ap- that the lease as drafted 1984 was definite and firm conviction that a mistake proved by merely This HUD. lease was a Walker, has been made. Bachand v. 455 many form lease and thus contained blanks (S.D.1990); Spon N.W.2d 851 v. Smith specifics in where were filled later. While heim, (S.D.1987). 399 N.W.2d 899 To de “Parking,” this lease contained a blank for termine whether trial court erred in its no amount was reflected for the fact, findings of we look whether the Thus, parking charge. Company the added findings supported by are the evidence. garage charge and the $14 Fox, Tramp (S.D.1990). v. 456 N.W.2d 554 charge monthly cable sometime after We now the turn to merits of Wittrock’s in and there was no evidence the record appeal. disclosing approval from or a written HUD (1) garage SFH of the or cable television Regulations charges in the lease. contained argues mandatory that monthly charges for cable television and The record is nebulous as to whether garage categorical are violations of HUD’s approval of the lease had to come from program, Section 8 New Construction through ar- HUD or SFH its contractual charges. HUD had never authorized the rangement with A from HUD. witness proven Trial court found that had attorney Sioux Falls and the who preponderance of the evidence that it that, drafted the lease while both testified complied regulations had with the federal they approval given, believed written regarding Wittrock’s lease and received the any such neither of them had record of necessary approval. specific Trial court’s approval from in their either HUD or SFH finding regarding this issue is as follows: Further, files. the record contains a June Defendant’s income was such that she letter from a HUD section chief eligible en- housing asking specifically subsidized that SFH: “Please through Department Housing owner/manager Eagles sure that [of ranges refrigerators, parking, with revises lease to conform

Nest] maintenance, Any management all and other model lease.... reference services, optional, charge housing be essential which would or rental must original.) required obtain, mandatory.” (Emphasis particular be in a mar- not area, developed owned, that ket privately since HUD SFH informed regula- newly housing its compliance not with constructed rental mod- lease was (Em- design tions, logically concluded with it can be that suitable amenities. added.) approve mandatory phasis not HUD did charge Company’s lease. It is also clear 880.201, Thus it CFR 880.203. §§ charges from a review the lease that “rent” is clear HUD’s definition of broad mandatory, optional, and there- were ga- and would include such as the in direct rules. fore violation of HUD Ac- *4 rage charges, Company and cable which view, cordingly, in our the evidence does imposed upon in addition to Wittrock her support finding to not tend trial court’s apartment rent. is, approved that the lease there- Applying regula- the federal statutes and fore, supra; clearly Tramp, erroneous. then, payment, tions “rent” as Wittrock’s Bachand, supra. by HUD, pursuant calculated was accurate 1437a(a)(l)(B); per- unlikely in the to 42 U.S.C.A. Ten

Even the event § ($330/month) approved, monthly the additional cent of her income we conclude payment per charges in the federal law and for a rent of month. $33 lease violate Congress passed considering the are therefore void. When When cable 1937, payments top per the the United States Act of it television of rent, specifically tenant’s was actu- limited the contribu Wittrock monthly ally paying monthly of her roughly tion to rent as follows: 38% Nest, in Eagles clearly income to live which (2), Except provided paragraph as a 1437a(a)(l), 42 and the violates U.S.C.A. family pay § for a dwelling shall as rent regulations. a result is federal Such not (other unit assisted under this Act than a by the law. justified evidence or the 8(o) family assisted under section [42 1437f(o)]) highest of USCS the the § Congress policy of has declared it the the amounts, following to the rounded near- general “to promote United States wel- dollar: by employing the Nation its funds fare of (A) per family’s 30 centum of the to and credit ... assist several States income; monthly adjusted political remedy and their subdivisions (B) family’s housing unsanitary 10 the unsafe and condi- centum income; decent, shortage and the of or tions acute' safe, sanitary families dwellings for of (C) family receiving payments if the is 1437. It is lower 42 U.S.C.A. income[.]” § public for welfare from a assistance indeed unfortunate that some individuals agency payments, and a part of such ignore place those policy would this adjusted in accordance with the fami- help are least themselves in a who able costs, ly’s actual housing specifically is light In position advantage to be taken of. designated by agency to meet such support of this of the amount federal costs, portion family’s housing housing program policy un- and the clear payments designated. is so such law, deem it derlying the we cannot an 1437a(a)(l). Congress 42 U.S.C.A. While § judicial appropriate evict determination specifically failed to define what consti- children this mother and her three small “rent,” own provides tutes its defini- the streets. onto “Fair to assist its tion for Market Rents” housing rent determinations in various additionally makes a claim Wittrock “Fair Market market areas. HUD defines damages, claiming repaid be for she should as Rent” follows: illegal garage and television for all rents, her to forced HUD’s determination of the in- conclude, however, telephone), since (except that cluding utilities

37 MILLER, C.J., used both and WUEST and June, 1991, SABERS, JJ., re until she is not entitled to concur.

payment charges. accepted for those She HENDERSON, J., specially. concurs services, these not the benefit of and is charge. entitled to receive them free of HENDERSON, (specially Justice concur- 82 142 Melby, Ward v. S.D. N.W.2d ring). (1966); v. Bon Homme Hutteri Hofer Brethren, Inc., an 79 S.D. 109 N.W.2d entirety With the opinion agree, this I (1961). conclusion, light In of this except penultimate for the sentence read- required trial court will be to review ing “Should trial court determine Wittrock damage claim on remand. responsible costs, is these it should allow Wittrock reasonable time to (2) Nonpayment Eviction for pay.” nonpay Wittrock was evicted for my opinion, this otherwise excellent rent, although payment ment she made a opinion verbiage. marred that argues which she was intended for rent First, it anticipatory ruling is an by this Company applied repairs. There is Court. no evidence in the record to enable us to *5 repairs determine whether the were neces law, Secondly, this case sounds sary “ordinary due to wear and tear” or equity. damaging resulted from Wittroek’s Third, province our direction invades the and, therefore, party is of the trial court. responsible under the lease for these charges. Further, there is no evidence in Fourth, lastly, it unnecessary support the record to the amount light express provisions 15- SDCL charged repairs. Wittrock for these 6-62(a) governs upon judg- execution present we are unable to determine at the judgment providing, ment or default inter time, whether or not Wittrock default has alia, stay an automatic of'execution for 30 ed on her payment. We there $33/month days good “or as otherwise ordered for fore instruct trial court on remand to ascer poking cause.” We are our nose into the tain the amount due and nature of the stay trial court’s business and we should at repairs to establish whether the home. were reasonable. Should trial court deter responsible mine Wittrock is for these re costs,

pair it should allow Wittrock a rea time to

sonable

This decision is reversed and remanded proceedings

for further consistent with this

opinion.