### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E May 27, 2 01 0 S es si on

DICKS ON HO USING AUTHORI TY v. I DA PEARL GRIME S, E T A L


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r o m t h e C i r c u i t C o u r t f o r D i c k s o n C o u n t y N o . 2 2 C C

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- 3 3 L a r r y W a l l a c e , J u d g e

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The circ uit court enter ed judgme nt in favor of Plaintiff Dickson Housing Authority in this eviction action. Finding the trial court admitted no evidenc e which would support the Housing Authority ’s alleg ations of amounts ea rned by Def endant tena

nt, we re verse

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T e n n . R

. A p p . P

. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C i r c u i t C o u r t R e v e r s e d a n d R e m a n d e d

D A V ID R

. F A R M E R , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h H O LLY M

. K IR B Y , J

. a n d J

. S T E V E N S T A F F O R D , J

. , j o i n e d

.

D a v i d K o z l o w s k i
, C o l u m b i a , T e n n e s s e e , f o r t h e a p p e l l a n t s , I d a P e a r l G r i m e s a n d B i l l y G r i m e s

.

J o s e p h M

. B a r r e t t a n d S t e v e n J

. H e r b e r t , D i c k s o n , T e n n e s s e e , f o r t h e a p p e l l e e , D i c k s o n H o u s i n g A u t h o r i t y

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M E M O R A N D U M O P I N I O N 1

Def endants/Appe llants I da Pearl Grimes (Ms. Grimes) and her son, Bi lly Grimes (Mr. Grimes, collectively
, “the Grimes”) have lived in an apar tment co m p lex owned by the Dickson

Rule 10 o f t he Ru le s of

th e Cou rt of

Appe al s of

T enn ess ee pro vides : 1

T his Cour t, wit h the con cur re nce of al l j udges par ti ci pat ing in the cas e, m ay af fi rm, re verse

or m odi fy the act ion s of the tr ia l cou rt by m emorand um opi nio n when a for m al opi nio n woul d have no pre ced ent ia l value. Wh en a cas e is dec ide d by m emorand um opi nio n it sha ll be des ignat ed “M EMORANDUM OPI NI ON”, sha ll not be publ is hed
, and sha ll not be ci te d

or re li ed o n f

or any re aso n i n an y unrel at ed c ase

.Housing Authority (“the DHA” ) since 1972. The amount of their r ent is based on their household

income. On Aug ust 13, 2001, the Grimes enter ed a lease with the DHA for an apar tment located on E. Walnut Street. The lease rec ited a monthly rent in the amount of $275, and section 5 of the lease provided for the rec ertifica tion o f income on an annual basis. I n November 2003, the lease was revised to provide that any incre ases in income or assets betwee n the annual rec ertification periods must be repor

ted within ten day s of the cha ng e.

I n September 2007, the Grimes’ rent was decr ease d from $253 per month to $165 per month based on a decr ease in the household income repor ted by the Grimes. After corr espondenc e betwee n the DHA and the Grimes wher ein the DHA asser ted that the Grimes had misrepre sented their income for the period from Aug ust 10, 2007 throug h Dec ember 2007, and wer e liable for renta l amounts that had been underpa id for that period, in Fe bruar y 2008, the DHA filed a detainer action in the Gene ral Sessions Court for Dickson County

. The g ener al sess i o n s co u rt enter ed judgme nt in favor of the DHA on Marc h 4, 2008, and the Grimes fi l ed a t i m el y n o t ice of appea l to the Circuit Court for Dickson County

. Following a hear ing on Fe bruar y 25, 2009, the circ uit court enter ed final judgme nt in f avor of the DHA on May 12, 2009. The Grimes filed a motion to alter or amend the judgme nt, and a motion to stay the judgme nt. The trial court denied the motions by order enter ed September 11, 2009. The Grimes filed a timely notice of appea l to this Court. They also filed a motion to stay the judgme nt of the trial court, which we g rante d on condition that the Grimes continue to pay rent as due. O ral a

rg ument was he ard by

the Western Section of this Court sitti ng in N ashville in May 2010.

Issues Presented

The Gr imes prese nt the following issue for our revie w, as we rew ord it:

(1) Whether

the trial cour

t erre d wher e:
(a) the Authority failed to provided the Grimes with proper notice of the re n t incre ase and other fee s, and with proper notice of termination;

(b) the Authority waived by acc epting pay ment afte r t h e n o t ice of termination and de tainer summons;

(c) t h e re co rd does not support the conclusion that the Grimes violated the ter

ms of the lease

.

Stan dard of Revie w

We reviewthe trial cour

t’s finding s of fa ct de novo upon the record with a pr esumption of

corr ectne ss. Tenn. R. App. P. 13(d). We will not reve rse the trial court’s fac tual finding s unless they

are contra ry to the preponde ranc e of the evidenc e. Berryhill v. Rhodes
, 21 S.W .3d 188, 190 (Tenn.

-2-2000). To preponde rat e aga i n s t a trial court’s finding of fac t, the evidenc e must support another

finding of fac t with g rea ter convincing evidenc e. Mosley v. McCanless
, 207 S.W .3d 247, 251 (Tenn. Ct. App. 2006). We revie w the trial court’s deter minations on questions of law, and its application of law to the fac ts, de novo , howeve r, with no presu m p t i o n o f co rr ectne ss. Bowden v. W ard
, 27 S.W .3d 913, 916 (Tenn. 2000). Simi larly
, we revie w mix ed questions of law and fac t de novo , with no presumption of cor

rec tness. State v. Thacke r , 164 S.W .3d 208, 248 (Tenn. 2005)

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Discussion

We beg in our discussion by noting that there is no dispute in this lawsuit reg arding whether the Grimes paid their assessed rent in a timely fashion since 1972. Rather, as the trial court noted, this dispute conce rns whether the Grimes failed to rep o rt t h eir full income for the purpose of calc ulating their income-ba sed rent due for the period of September 1 to Dec ember 5, 2007, and, if so, whether

the Grimes f

ailed to pay assessed under- pay ments in the amount that the DHA a sserts

was due for this period. I t acc ording ly require s, as an initial matter, a deter mination of whether Mr. Grimes failed to repor

t his income in the amount alleg ed by the DHA. The DHA asser ts the Grimes failed to repor

t amounts ear

ned by Mr. Grimes from his employ ment at Bur g er King in the amount of $1274.49, and that this failure resulted in an under assessment of rent in the amount of $382.00. As proof of its alleg ations, the DHA introduced ex h i bits marke d as t rial ex hibits 2, 5, and 6. The trial court excluded these exhibi ts as hear say

. The DHA o ff er ed no other proof of Mr. Grimes’ income. Thus, there is simply no evidenc e in the re cord to support the D HA’s a ssertions that the Grimes failed to repor

t Mr. Grimes’ income in the amount asser ted. The DHA simply failed to car ry its burden to prove the fac ts alleg ed with re spect to Mr. Gr imes’ ea rning s.

Holdin g

I n light of the fore g oing, there is no proof in the rec ord to support the trial court’s judgme nt in favor of

the DHA. A ccor dingly , the judg ment is rever sed. Costs of this a ppeal are taxed to the appellee , the Dickson Housing Authority

.

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D A V I D R

. F A R M E R
, J U D G E

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