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HUBBARD v. HENRICO LIMITED PARTNERSHIP


HUBBARD
v. HENRICO LIMITED PARTNERSHIP


February 27, 1998
Record No. 971060

BRENDA HUBBARD

v.

HENRICO LIMITED
PARTNERSHIP,
T/A HENRICO ARMS APARTMENTS

OPINION BY JUSTICE
BARBARA MILANO KEENAN
FROM THE CIRCUIT COURT OF HENRICO COUNTY

Lee A. Harris, Jr.,
Judge
Present: All the Justices


In this appeal, we
decide whether a tenant in an unlawful detainer action who pays
the overdue rent and related charges before the first court
return date automatically invokes the rights afforded by Code ?
55-243 to retain possession of the leased premises.

Brenda Hubbard
leased an apartment from Henrico Limited Partnership t/a Henrico
Arms Apartments (Henrico Arms) under the terms of a written lease
that required her to make monthly rent payments to Henrico Arms.
In February, April, and June 1996, Hubbard failed to make the
required rent payments. On each of these occasions, Henrico Arms
sent Hubbard a written notice, pursuant to Code ? 55-225,
stating that she must pay the overdue rent and related charges
within five days or surrender possession of the leased premises.
When Hubbard failed to pay the amounts specified within five days
of each written notice, Henrico Arms filed a summons for unlawful
detainer on each occasion, seeking payment of past due rent,
costs, and possession of the leased premises.

Prior to the return
date on each of the unlawful detainer summonses, Hubbard paid to
Henrico Arms all overdue amounts. Henrico Arms accepted each
payment with reservation, pursuant to Code ? 55-248.34, to
preserve its right to seek possession of the premises. After
accepting the rent with reservation, but prior to trial, Henrico
Arms dismissed each unlawful detainer summons as
"paid."

In September 1996,
when Hubbard again failed to make the required rent payment,
Henrico Arms sent Hubbard a written notice stating that she must
pay the overdue rent and related charges within five days or
surrender possession of the apartment. After Hubbard failed to
pay the amount specified within five days, Henrico Arms filed a
summons for unlawful detainer in the general district court,
seeking payment of rent, costs, fees, and possession of the
premises. Although Hubbard paid the entire amount due to Henrico
Arms prior to the return date, and Henrico Arms accepted the
payment with reservation, Henrico Arms did not dismiss the
action.

At trial, Hubbard
notified the general district court that she had paid all amounts
due and sought to invoke her rights under Code ? 55-243, which
provides, in relevant part:

A. If any party
having right or claim to such lands shall . . . before the
first court return date in an action of unlawful detainer
seeking possession of a residential dwelling based upon a
default in rent, pay or tender to the party entitled to such
rent . . . all the rent and arrears, along with any
reasonable attorney's fees and late charges contracted for in
a written rental agreement, interest and costs, all further
proceedings in the . . . unlawful detainer shall cease. . . .

B. In cases of
unlawful detainer, the tenant may invoke the rights granted
by this section no more than one time during any twelve-month
period of continuous residency in the rental dwelling unit.

Hubbard informed the
court that she had not exercised these rights within the
preceding twelve-month period. Henrico Arms argued that Hubbard
had invoked the rights on the earlier occasions when she paid the
amounts due prior to the first court return dates. The general
district court agreed with Henrico Arms and entered judgment in
its favor for possession of the leased premises.

Hubbard appealed the
judgment to the circuit court. After a trial
de
novo, the circuit court entered judgment
in favor of Henrico Arms for possession of the premises, ruling
that Hubbard had invoked her rights under Code ? 55-243 within
the preceding twelve-month period and, therefore, was prevented
from asserting those rights in the current action.

On appeal to this
Court, Hubbard contends that the trial court erred in awarding
possession of the premises to Henrico Arms because she had not
invoked her statutory rights in any of the earlier unlawful
detainer actions. Hubbard asserts that a tenant can only invoke
these statutory rights by manifesting an intent to do so through
"some words or conduct," after paying all overdue rent
and related charges. Hubbard also argues that Henrico Arms should
not be permitted to rely on the annual limitation in Code ?
55-243(B) because Henrico Arms failed to inform Hubbard on any of
those earlier occasions that she was exercising her rights under
the statute.

In response, Henrico
Arms contends that under the express terms of Code ? 55-243,
once a tenant pays accrued rent, attorney's fees, late charges,
interest, and costs, the unlawful detainer proceeding "shall
cease." Thus, Henrico Arms asserts that when a tenant pays
all overdue rent and related charges before the first court
return date on the unlawful detainer summons, the tenant has
invoked the rights provided by the statute and the unlawful
detainer action terminates by operation of law. Henrico Arms also
argues that the statute does not require a landlord expressly to
acknowledge that a tenant has invoked these statutory rights at
the time the rights are exercised. We agree with Henrico Arms.

We repeatedly have
stated the principles of statutory construction that apply when a
statute, such as Code ? 55-243, is clear and unambiguous. In
such circumstances, a court may look only to the words of the
statute to determine its meaning.
Harrison &
Bates, Inc. v. Featherstone Assocs.
, 253 Va. 364,
368, 484 S.E.2d 883, 885 (1997);
Brown v. Lukhard,
229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). The intention of the
legislature must be determined from those words, unless a literal
construction would result in a manifest absurdity.
Abbott
v. Willey
, 253 Va. 88, 91, 479 S.E.2d 528, 530
(1997);
Barr v. Town & Country Properties, Inc.,
240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). Thus, when the
legislature has used words of a clear and definite meaning, the
courts cannot place on them a construction that amounts to
holding that the legislature did not intend what it actually has
expressed.
Id.; Weinberg v.
Given
, 252 Va. 221, 225-26, 476 S.E.2d 502, 504
(1996).

The plain language
of Code ? 55-243 gives a residential tenant a limited right to
avoid a judgment for possession of leased premises by tendering
to the landlord or paying into court at any time before the first
court return date on the unlawful detainer summons all overdue
rent and related charges. This right is limited by paragraph B of
the statute, which affords the tenant this protection only once
during any twelve-month period of continuous residency in the
dwelling unit.

The tenant's act in
tendering the amount due before the first court return date
triggers the protection provided by the statute. Thus, no further
act is required from the tenant before "all further
proceedings in the . . . unlawful detainer shall cease."
Code ? 55-243(A).

We disagree with
Hubbard's contention that the legislature's use of the word
"invoke" in paragraph B of the statute requires us to
reach a different conclusion. When, as here, a statute contains
no express definition of a term, the general rule of statutory
construction is to infer the legislature's intent from the plain
meaning of the language used.
City of Virginia Beach
v. Flippen
, 251 Va. 358, 362, 467 S.E.2d 471, 473-74
(1996);
Marsh v. City of Richmond, 234
Va. 4, 11, 360 S.E.2d 163, 167 (1987). In the present context,
the plain meaning of the term "invoke" is "to put
into legal effect."
See Webster's
Third New International Dictionary 1191 (1993). Thus, Hubbard
"put into legal effect" the protection of the statute
when she timely tendered payment for the overdue rent and related
charges for February 1996, the period covered by the first
unlawful detainer summons.

This interpretation
of paragraph B also is compelled by the language in paragraph A
of the statute that the unlawful detainer proceedings "shall
cease" upon a timely tender by the tenant of the delinquent
amounts due. This language is unconditional and leaves nothing
more to be done by the tenant before the statutory protection
takes effect. Once in effect, this protection requires the
landlord to terminate the unlawful detainer action.

Hubbard's
interpretation of Code ? 55-243 would require us to render
meaningless the statutory language which provides that an
unlawful detainer action "shall cease" on the tenant's
tender to the landlord of the overdue rent and related charges.
Such an interpretation would violate the settled principle of
statutory construction that every part of a statute is presumed
to have some effect and no part will be considered meaningless
unless absolutely necessary.
Sims Wholesale Co. v.
Brown-Forman Corp.
, 251 Va. 398, 405, 468 S.E.2d
905, 909 (1996);
Raven Red Ash Coal Corp. v. Absher,
153 Va. 332, 335, 149 S.E. 541, 542 (1929).

We also find no
merit in Hubbard's contention that, since Henrico Arms intended
to rely on the annual limitation in Code ? 55-243(B), Henrico
Arms was "required to recognize when the right was used and
to acknowledge this fact to the tenant." Such a construction
would constitute a rewriting of the statute, an act in which the
courts are not permitted to engage.
See Barr
v. Town & Country Properties, Inc.
, 240 Va. at
295, 396 S.E.2d at 674;
Anderson v. Commonwealth,
182 Va. 560, 566, 29 S.E.2d 838, 841 (1944). Thus, we hold that
the trial court correctly ruled that Hubbard was not entitled to
invoke the rights afforded by Code ? 55-243 in the present
unlawful detainer action.

For these reasons,
we will affirm the trial court's judgment.

Affirmed.

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