DeMarcus Hazelwood v. The Common Wealth Apartments
Case No. 23A-EV-1404
Court of Appeals of Indiana
March 22, 2024
Opinion by Judge May; Judge Felix concurs; Judge Bailey concurs with separate opinion.
May, Judge.
[1] DeMarcus Hazelwood appeals the trial court‘s order granting The Common Wealth Apartments (“Common Wealth“) possession оf Hazelwood‘s apartment. Hazelwood raises two issues on appeal, but we find one dispositive: Whether the trial court erred in granting possession of the apartment to Common Wealth, which is a landlord that accepts federal housing subsidies, when Common Wealth failed to give Hazelwood a thirty-day notice to vаcate. We reverse and remand.
Facts and Procedural History
[2] Common Wealth received federal subsidies to house eligible residents in its near eastside Indianapolis apartment complex, and Hazelwood was one of Common Wealth‘s rent-subsidized residents. Hazelwood‘s lease began on February 1, 2023, and the lease‘s term was set to expire on January 31, 2024. On May 11, 2023, Common Wealth filed a notice of claim seeking a court order granting it possession of Hazelwood‘s apartment.1 On May 19, 2023, Common Wealth filed an amended notice of claim alleging it was entitled to possession
[3] On June 5, 2023, Hazelwood filed a motion to dismiss Common Wealth‘s notice of claim. Hazelwood argued that federal law required Common Wealth to give Hazelwood a thirty-day notice before filing a claim to evict him from his apartment and that Common Wealth was required to make a grievance procedurе available to Hazelwood before evicting him. Hazelwood argued that, because Common Wealth failed to meet either requirement, the trial court should dismiss Common Wealth‘s claim.
[4] On June 6, 2023, the trial court held a hearing on Common Wealth‘s notice of claim. Common Wealth responded to Hazelwood‘s motion to dismiss at the hearing by arguing that the provision of federal law requiring a thirty-day notice “appears to have terminated months ago. And with respect to the informal resolution issues, we‘re here.” (Tr. Vol. II at 10.) Hazelwood and Common Wealth agreed Hazelwood was behind in paying his rent, but the parties disagreed about the total amount of Hazelwood‘s arrearage. The trial court implicitly overruled Hazelwood‘s motion to dismiss and found in favor of Common Wealth on its claim for possession of the apartment. Hazelwood filed a motion to stay the trial court‘s order, which the trial court denied. Hazelwood then filed a notice of appeal and an emergency motion to stay the trial court‘s order before this Court, and this Court granted Hazelwood‘s motion.
Discussion and Decision
[5] Initially, we note Common Wealth chose not to file an appellee‘s brief. “Under such circumstances, we will not develop an argument for the appellees but instead will reverse the trial court‘s judgment if the appellant‘s brief presents a case of prima facie error.” Inspire Outdoor Living v. Norris, 193 N.E.3d 428, 430 (Ind. Ct. App. 2022). Prima facie error “means at first sight, on first appearance, or on the face of it.” Id. (internal quotation marks omitted).
[6] Hazelwood contends the trial court erred when it denied his motion to dismiss. He asserts Common Wealth violated federal law by evicting him without first giving him a thirty-day notiсe.2 Because Hazelwood‘s appeal presents a pure question of law, we review his claim de novo. Ramirez v. Wilson, 901 N.E.2d 1, 2 (Ind. Ct. App. 2009), trans. denied.
[7] A provision of the Coronavirus Economic Stabilization Act (“CARES Act“) enacted in 2020 placed a temporary moratorium on eviction filings.
(a) Definitions
In this section:
(1) Covered dwelling
The term “covered dwelling” means a dwelling that--
(A) is occupied by a tenant--
(i) pursuant to a residential lease; or
(ii) without a lease or with a lease terminable under State law; аnd
(B) is on or in a covered property.
(2) Covered property
The term “covered property” means any property that--
(A) participates in-
- (i) a covered housing program (as defined in section 12491(a) of Title 34); or
* * * * *
(3) Dwelling
The term “dwelling“--
(A) has the meaning given the term in section 3602 of Title 42; and
(B) includes houses and dwellings described in section 3603(b) of Title 42.
* * * * *
(b) Moratorium
During the 120-day period beginning on March 27, 2020, the lessor of a covered dwelling may not--
(1) make, or cause to be made, any filing with the court of jurisdiction to initiatе a legal action to recover possession
of the covered dwelling from the tenant for nonpayment of rent or other fees or charges; or
(2) charge fees, penalties, or other charges to the tenant related to such nonpayment of rent.
(c) Notice
The lessor of a covered dwelling unit--
(1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and
(2) may not issue a notice to vacate under paragraph (1) until after the expiration of the period described in subsection (b).
[8] Our first step in ascertaining whether the thirty-day noticе provision outlined in
program (as defined in section 12491(a) of Title 34)[.]”
[9] Having determined that Hazelwood‘s apartment qualified as a “covered dwelling” within the meaning of
When the Centers for Disease Control and Prevention (“CDC“) subsequently attempted to use its administrative power to extend the moratorium further, the United States Supreme Court held the CDC lacked the authority to do so without authorization from Congress. Id. at 2490.
[10] Hazelwood nevertheless contends thаt, while the eviction moratorium authorized by
[11] In In re Arvada Vill. Gardens LP v. Garate, the Colorado Supreme Court held that the federal thirty-day notice provision is still in effect for covered properties. 529 P.3d 105, 106 (Colo. 2023). Thus, the Court dismissed a landlord‘s eviction action because the landlord failed to give the tenant a thirty-day notice before initiating eviction proceedings. Id. at 108. Likewise, the Washington Court of Appeals held the thirty-day notice provision is still in effect. Sherwood Auburn LLC v. Pinzon, 521 P.3d 212, 220 (Wash. Ct. App. 2022), rev. denied; see also, Watson v. Vici Cmty. Dev. Corp., No. CIV-20-1011-F, 2021 WL 1394477, at *11 (W.D. Okla. Apr. 12, 2021) (holding thirty-day notice provision extended
beyond expiration of the moratorium provision in declining to dismiss declaratory judgment action). We follow the lead of our sister states and hold that the notice provision did not expire with the temporary eviction moratorium. Common Wealth failed to comply with
Conclusion
[12] Common Wealth violated federal law by failing to give Hazelwood a thirty-day notice to vacate as required by
[13] Reversed and remanded.
Felix, J. concurs.
Bailey, J., concurs with a separate opinion.
ATTORNEY FOR APPELLANT
Ann Harris Smith
Indiana Legal Services, Inc.
Indianapolis, Indiana
Andrew Tyler Thomas
Indiana Legal Services, Inc.
Fort Wayne, Indiana
Bailey, Judge, concurring with separate opinion.
[14] I concur but writе separately to note that the 30-day notice requirement expired when the national emergency concerning the coronavirus disease 2019 (“COVID-19“) pandemic terminated on April 10, 2023. However, because Hazelwood‘s non-payment of rent occurred before that date, Common Wealth was required to provide him with 30 days’ notice to vacate prior to beginning eviction proceedings.
[15] On March 13, 2020, the President declared a national emergency concerning the COVID-19 pandemic. He did so pursuant to his authority under
Aid, Relief, and Economic Securities Act, Pub. L. No. 116-136, 134 Stat. 281, § 4024, at 492-494 (codified at
[16] As the majority holds, the 30-day notice requirement did not expire at the same time the eviction moratorium expired. As recently noted by the Ohio Court of Appeals, to read the statute in any other way would make section (c) of the statute superfluous:
Under 15 U.S.C. 9058(c)(2), lessors did not have an obligation to provide a 30-day notice to vacate pursuant to subsection (c)(1) until after the moratorium expired. Consequently, 15 U.S.C. 9058(c)(1) did not become operative until July 25, 2020--the day after the moratorium expired. Under Olentangy Commоns’ interpretation of 15 U.S.C. 9058(b) and (c), the notice provision in subsection (c)(1) is meaningless, as it would have expired on July 24, 2020--a day prior to becoming operational. Thus, Olentangy Commons’ interpretation conflicts with the rule that “‘a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.‘” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009), quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) (further quotation omitted).
[17] However, on April 10, 2023, in accordance with its authority under
rules and regulations--which were created specifically to address the COVID-19 national emergency--expired on April 10, 2023.5
[18] Nevertheless, to the extent the eviction action was based on non-payment of rent prior to April 10, 2023, it still required the 30-day notice to vacate.
the laws enacted pursuant to it, Hazelwood was entitled to a 30-day notice to vacate prior to the implementation of eviction рroceedings, pursuant to
Notes
Any national emergency declared by the President in accordance with this subchapter shall terminate if--
(1) there is enacted into law a joint resolution terminating the emergency; or
(2) the President issues a proclamation terminating the emergency.
Any national emergency declared by the President shall be terminated on the date speсified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to bе exercised after such specified date, except that such termination shall not affect--
(A) any action taken or proceeding pending not finally concluded or determined on such date;
(B) any action or proceeding based on any act committed prior to such date; or
(C) any rights or duties that matured or penalties that were incurred prior to such date.