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Court rules defective notice of lease violation not prejudicial to tenant,  but violations not disclosed in discovery not admissible at trial.

moonBACKGROUND

In January 2002, Nealy entered into a written lease agreement with SPA, a federally subsidized apartment complex regulated by Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f (2000 & Supp.2005), and Title 24 of the Code of Federal Regulations, 24 C.F.R. § 882.101 (2006). The lease also provided that SPA could terminate the tenancy for (1) a serious or repeated violation of the terms and conditions of the lease or other good cause upon provision of a notice of termination that complied with United States Department of Housing and Urban Development (“HUD”) requirements. See 24 C.F.R. § 882.101 (2006).

On April 28, 2004, SPA sent Nealy a “30 Day Notice to Vacate” the premises and listed two reasons for the notice to vacate: (1) “Owner desires possession” and (2) “Un-desirable tenant behavior.” SPA later filed suit against Nealy, citing “un-desirable tenant behavior” as the sole ground for eviction. During discovery, Nealy served a written interrogatory asking SPA to identify each act of undesirable tenant behavior on which SPA relied for evicting Nealy, including “what was done, by whom and when in breach of the lease.” SPA responded that “Ms. Nealy breached her lease by violating the rules of Southland Palms Apts. because she mooned another tenant.”

At trial, over objection by the tenant, SPA’s manager testified to additional violations,  that Nealy continuously loitered on the premises and rode a four-wheeler or tractor on the sidewalks, nearly hitting children on one occasion, and that Nealy had assaulted other tenants.

NOTICE OF TERMINATION

To terminate a tenancy in federally subsidized housing, federal regulations and due process both require adequate notice detailing the grounds for termination. Moon v. Spring Creek 390*390 Apartments, 11 S.W.3d 427, 433 (Tex. App.-Texarkana 2000, no pet.). The rules and regulations set forth by HUD mandate that the landlord’s termination notice “[s]tate the reasons for such termination with enough specificity to enable the [tenant] to prepare a defense.” 24 C.F.R. § 882.511(d)(2)(i) (2006); see 24 C.F.R. § 247.4(a)(2) (2006) (providing the same)., termination notices have been found to be insufficient when they contain only one sentence, are written in “vague and conclusory” language, or fail to set forth a factual statement of the reason for termination.

In the present case, the notice contained one vague and broad allegation that Nealy engaged in some type of undesirable behavior, but did not set forth the behavior SPA was complaining about. The notice also failed to notify Nealy of the dates of any incidents or of the people involved. Absent any of these details, the notice of termination failed to meet the specificity requirements outlined in the federal regulations and existing case law. We conclude the notice provided to Nealy was inadequate.

The purpose of the notice requirements under HUD is “to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence.” Escalera, 425 F.2d at 862. This purpose would not be served by allowing a tenant to assert that a court has no subject-matter jurisdiction over such an action because of an inadequate notice. For instance, assuming that a tenant received a deficient notice, yet effectively rebutted the evidence and prepared a proper defense, dismissing the case based on subject-matter jurisdiction would fail to serve the purpose of the statutory requirement. We conclude that an inadequate notice does not deprive a court of subject-matter jurisdiction and that a harm analysis better fulfills the purpose of HUD’s specificity requirements.

Nealy did file an answer and pursued pretrial discovery through written interrogatories and requests for production. Neither Nealy nor Nealy’s counsel indicated that they could not prepare a proper defense, and Nealy’s counsel did object to evidence of other alleged lease violations because counsel knew, or was under the impression, that only Nealy’s alleged mooning of other tenants formed the basis for her eviction. Finally, SPA’s manager testified that she actually met with Nealy to discuss Nealy’s undesirable tenant behavior prior to terminating the tenancy. Nealy was not harmed by the inadequate notice. See TEX.R.App. P. 44.1(a).

EVIDENTIARY COMPLAINTS

In discovery the SPA stated that Nealy breached her lease by violating the rules of SPA and by violated the lease addendum. It was reported that Nealy mooned another tenant.

SPA did not amend or supplement this answer prior to trial. At trial, the trial court admitted SPA’s evidence that (1) Nealy and one of her guests were the victims of two separate assaults; (2) Nealy loitered on the apartment’s premises in violation of the lease; and (3) Nealy rode a four-wheeler or tractor on the apartment sidewalks, nearly hitting children on one occasion. At all relevant times, Nealy objected to the admission of this evidence on the ground that these acts were not disclosed in discovery.

SPA was subject to Rule 193.6(a) of the Texas Rules of Civil Procedure. Rule 193.6(a) provides that a party who fails to make, to amend, or to supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, unless the court finds that there was good cause for the failure to make, to amend, or to supplement the discovery response timely, or that the other parties will not be unfairly surprised or prejudiced by the failure to make, to amend or to supplement. Id. 193.6(a). The party seeking to introduce the evidence carries the burden of establishing good cause or lack of unfair surprise or unfair prejudice. Id. 193.6(b). A finding of good cause or lack of unfair surprise or unfair prejudice must be supported by the record. Id.

Thus the trial court abused its discretion in admitting evidence regarding the assaults on Nealy and her guest, Nealy’s loitering on the premises, and Nealy’s driving of the four-wheeler or tractor on the apartment’s sidewalks.

Because the trial court did not find that Nealy actually mooned anyone, we conclude that reports of mooning do not fit within the grounds for evicting Nealy. We also conclude that mere reports of Nealy’s mooning others do not amount to good cause for evicting her. Had the trial court found that Nealy actually mooned others, the analysis would have been different; however, reports are nothing more than allegations, which this Court will not term as “good cause” for evicting a tenant in federally subsidized housing.

Because the reports of mooning do not fit within the grounds for evicting Nealy under the lease, we conclude that Nealy was harmed by the admission of the undisclosed evidence. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings.

NEALY, v. SOUTHLAWN PALMS APARTMENTS, 196 S.W.3d 386 (2006), Court of Appeals of Texas, Houston (1st Dist.).

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