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Nelson v. Johnson

February 17, 2010

KATHY NELSON, PLAINTIFF AND APPELLEE
v.
CAROL JOHNSON, DEFENDANT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

The opinion of the court was delivered by: Maring, Justice

AFFIRMED.

[¶1] Carol Johnson appeals from a judgment evicting her from a townhouse she rented from Kathy Nelson and ordering Johnson to pay Nelson $520 in unpaid rent and late fees, $400 in attorney fees, and $130 in costs and disbursements. Johnson argues a three-day notice of intention to evict her was not properly served on her and the court erred in not making findings on her defenses of waiver and estoppel and in dismissing her counterclaim for retaliatory eviction. We affirm.

I.

[¶2] Nelson leased a townhouse to Johnson in Fargo under a six month written lease from September 15, 2008, through March 15, 2009. The lease required Johnson to pay Nelson $495 per month in rent with payment due on the first day of each month and also required Johnson to provide a $400 security deposit.

[¶3] At the time the lease was executed, Johnson did not have a full- time permanent job, and she had difficulty paying her rent. In a notice dated December 8, 2008, Nelson provided Johnson with a three-day notice that her December rent was past due and that she had three days to pay the past-due amount of $495, plus $25 in late fees, or an eviction action would be commenced under N.D.C.C. ch. 33-06. According to Nelson, that notice was placed on the door of the leased premises. Johnson admitted she received that notice and thereafter paid the past- due rent and the late fee. According to Johnson, she was also late on her January 2009 rent payment because she did not procure full-time employment until the end of January, and she paid her rent for that month, plus a $25 late fee, in two installments, with payment of the final installment on January 23, 2009.

[¶4] Johnson did not pay her February 2009 rent on the first of February. She claimed she had a telephone conversation with Nelson the first week of February regarding the February rent. Johnson maintained she told Nelson that she hoped her February 6 paycheck would be sufficient to permit a partial rent payment and requested permission to contact Nelson to discuss payment after receiving that paycheck. According to Johnson, she called Nelson on February 9 to discuss the rent payment and left a message with Nelson's son, Chris Nelson. Johnson asserted she also called Kathy Nelson on February 10 and left a message on an answering machine, asking to pay the entire rent payment, with a late fee, from her February 20 paycheck. Johnson claimed she did not receive a response from Kathy Nelson and assumed that arrangement was acceptable.

[¶5] According to Kathy Nelson, she agreed to allow Johnson to pay half the February rent by February 9, with the remainder due the following week. On February 5, 2009, Kathy Nelson had Chris Nelson provide Johnson with a three-day notice of intention to evict Johnson under N.D.C.C. ch. 33-06. This record includes Chris Nelson's February 10, 2009, affidavit of personal service of the three-day notice of intention to evict, which states that Chris Nelson "is over the age of eighteen (18) years and is not a party to the foregoing action or interested therein," and that on February 5, 2009, at 6 p.m. he taped the notice on the door at Johnson's residence. Chris Nelson testified that he served the three-day notice on Johnson by going to her townhouse at 6 p.m. on February 5, knocking on the door, ringing the doorbell, and when no one answered, taping the notice on the door.

[¶6] Johnson asserts she did not receive the three-day notice, and by letter dated February 9, 2009, she provided Kathy Nelson with a notice of intention to vacate the townhouse on March 15, 2009, at the end of the six-month lease. Johnson claims she found her living conditions unacceptable shortly after the lease began, and she contacted the Fargo Police Department about "electronic hazards" in the townhouse, which she believed evidenced radio frequencies. Johnson also reported to the Fargo Police "tappings on metal pipes" in the townhouse, which she believed evidenced a form of surreptitious intrusion with surveillance devices.

[¶7] On February 13, 2009, a process server served Johnson with a summons and complaint in this eviction action by taping the summons and complaint to her door at 6:35 p.m. after he was unable to locate her. Johnson admitted that she heard the doorbell ring and later found the summons and complaint taped to her door on February 13 and that she also received a copy of the summons and complaint by mail on February 21, 2009.

[¶8] Kathy Nelson's complaint alleged Johnson had failed to surrender the premises and sought to evict her and to collect overdue rent, late fees, attorney fees, and costs. The summons commanded Johnson to appear in court on February 25, 2009, to defend against the complaint. Johnson answered, alleging retaliatory eviction, waiver, and equitable estoppel. She claimed that, consistent with verbal agreements for prior rent payments, she had a verbal agreement with Kathy Nelson in early February 2009 for late payment of the rent, with a late fee, by February 20. Johnson also moved to dismiss the eviction action, claiming she did not receive the three-day notice of intention to evict and she did not learn about the eviction action until she found the summons and complaint taped to her door on February 13, 2009.

[¶9] On February 24, 2009, Johnson tendered a check for the February rent and late fee to Kathy Nelson's attorney. At the February 25 trial, the district court treated Johnson's motion to dismiss for claimed failure to serve the three-day notice as a defense to the eviction action and required Kathy Nelson to prove proper service of the notice. In an oral ruling, the court found Chris Nelson posted the three-day notice on Johnson's door after he was unable to find Johnson and service was complete with the posting. The court also found Johnson had failed to pay her February rent and late fees and was still in possession of the premises. The court explained the eviction action was not the proper venue for a claim for retaliatory eviction; there was no factual basis for Johnson's claims of constructive eviction; and even if the parties agreed to a delayed rent payment until February 20, Johnson did not comply with the claimed agreement and pay her rent by then. The court granted Kathy Nelson judgment evicting Johnson from the premises and ordering her to pay Nelson $520 in unpaid rent and late fees, $400 in attorney fees, and $130 in costs and disbursements.

II.

[¶10] Johnson argues the district court did not have personal jurisdiction over her and erred in denying her motion to dismiss because Nelson failed to properly serve the three-day notice of intention to evict under N.D.C.C. § 33-06-02 and N.D.R.Civ.P. 4. She claims she did not receive the notice of intention to evict and argues the notice must be served in the same manner as a summons and complaint is served under N.D.R.Civ.P. 4.

[¶11] North Dakota has enacted forcible detainer statutes for eviction proceedings. Goodman Inv. Ins. v. Swanston Equip. Co., 299 N.W.2d 786, 788 (N.D. 1980). During this proceeding, the statutory provisions for an eviction action were codified in N.D.C.C. ch. 33-06, but, effective August 1, 2009, have been recodified at N.D.C.C. ch. 47-32 without substantial change. See 2009 N.D. Sess. Laws ch. 65, §§ 4, 8. It is well established that these statutory provisions are intended to provide an expedited, inexpensive, and simple procedure to recover possession of real property. See, e.g., Riverwood Commercial Park, LLC v. Standard Oil Co., 2005 ND 118, ¶ 6, 698 N.W.2d 478.

[¶12] The issues in this case involve the interpretation of those statutory procedures. Statutory interpretation is a question of law, which is fully reviewable on appeal. VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 9, 672 N.W.2d 445. The primary purpose of statutory interpretation is to determine the intention of the legislation. Estate of Elkin, 2007 ND 107, ¶ 7, 735 N.W.2d 842. Words used in a statute are given their plain, ordinary, and commonly understood meaning unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, "the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. In construing statutes, we consider the context of the statutes and the purposes for which they were enacted. Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719 (citing Van Klootwyk v. Arman, 477 N.W.2d 590, 591-92 (N.D. 1991) (holding "The interpretation of a statue is a fully reviewable question of law, and our primary objective is to ascertain the intent of the legislature by looking at the language of the statute itself and giving it its plain, ordinary and commonly understood meaning. Consideration should be given to the context of the statutes and the purposes for which they were enacted." (citations omitted)).

[¶13] Under N.D.C.C. § 33-06-01(4), recodified at N.D.C.C. § 47-32- 01(4), an eviction action to recover possession of real property may be maintained when a lessee fails to pay rent for three days after the rent is due. Section 33-06-02, N.D.C.C., recodified at N.D.C.C. § 47-32-02, outlines specific procedures for service of both a summons and, if required, a notice of intention to evict:

In any action for eviction the time specified in the summons for the appearance of the defendant may not be less than three nor more than fifteen days from the date on which it is issued. If the person cannot be found in the county, of which the return of the sheriff or process server is prima facie proof, and service has been attempted at least once between the hours of 6:00 p.m. and 10:00 p.m. upon the filing of an affidavit of the plaintiff or the plaintiff's attorney stating that the defendant cannot be found or on belief that the defendant is not in this state and a copy of the summons has been mailed to the defendant at the defendant's last known address if any is known to the plaintiff, service of the summons may be made upon the defendant by the sheriff or process server posting the summons upon the door of the residential unit. In all cases arising under subsections 4, 5, 6, and 8 of section 33-06-01, three days' written notice of intention to evict must be given to the lessee, subtenant, or party in possession, before proceedings can be instituted. The notice may be served and returned as a summons is served and returned or, if the party cannot be found, then by the sheriff of the county or a process server posting the notice conspicuously upon the premises. Service by delivery of a copy of the summons to the defendant in person within the county must be made at least three days before the time fixed for the appearance of the defendant. Service elsewhere or personal service in any other mode must be made at least seven days before the time fixed for the appearance of the defendant.

[¶14] Under N.D.R.Civ.P. 81(a), special statutory procedures are excepted from the rules of civil procedure insofar as those statutory procedures are inconsistent with the rules. Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236, 239-40 (holding time period of N.D.C.C. § 33-06-02 for appearance of defendant, rather than time to answer a complaint under N.D.R.Civ.P. 12, governs time within which tenant must appear and defend in eviction action). Rule 4(m), N.D.R.Civ.P., also provides that "[i]f a statute requires service and does not specify a method of service, service must be made under this rule."

[¶15] The plain language of N.D.C.C. § 33-06-02 outlines separate procedures for service of the summons and, if required, for service of the written notice of intention to evict. The specific language for service of the notice of intention to evict provides that "[t]he notice may be served and returned as a summons is served and returned or, if the party cannot be found, then by the sheriff of the county or a process server posting the notice conspicuously upon the premises." N.D.C.C. § 33-06-02. In Goodman, 299 N.W.2d at 788-90, this Court decided the three-day written notice to quit, which is now called a notice of intention to evict, replaced the common law demand for payment and permitted a tenant to pay rent within the three-day period to abate the action and avoid forfeiture for nonpayment of rent. See McLain v. Nurnberg, 16 N.D. 144, 147, 112 N.W. 243, 244 (1907) (stating if notice to quit is given before summons is issued and that fact is shown at trial, jurisdiction is not lost; giving notice is prerequisite before action can be properly instituted). Under Goodman, an eviction action may not be instituted against a tenant for non-payment of rent under N.D.C.C. § 33-06-01(4), unless the landlord gives the tenant a three-day notice of intention to evict and an opportunity to pay the past-due rent.

[¶16] The plain language of N.D.C.C. § 33-06-02 provides that service of the notice of intention to evict "may be served and returned as a summons is served and returned or, if the party cannot be found, then by the sheriff of the county or a process server posting the notice conspicuously upon the premises." The use of the word "may" in a statutory scheme is ordinarily understood as "permissive rather than mandatory and operates to confer discretion." Matter of Adoption of K.S.H., 442 N.W.2d 417, 420 (N.D. 1989). "The word `or' is disjunctive in nature and ordinarily indicates an alternative between different things or actions." State v. FreeEats.com, Inc., 2006 ND 84, ¶ 14, 712 N.W.2d 828. "Terms or phrases separated by `or' have separate and independent significance." Id.

[¶17] The plain language of the provisions in N.D.C.C. § 33-06-02 for service of the three-day written notice of intention to evict indicates that use of the word "may" for service of the notice coupled with the use of the word "or" is permissive and authorizes the notice to be served by one of two different methods: either in the same manner as a summons is served and returned, or if the party cannot be found, then by the sheriff or a process server posting the notice conspicuously upon the premises. See Deacon's Dev., LLP v. Lamb, 2006 ND 172, ¶ 6, 719 N.W.2d 379 (notice of intention to evict may be served as summons is served). Under that statutory scheme, a landlord may have the notice of intention to evict served in the same manner as a summons is served, or, alternatively, by having the sheriff of the county or a process server post the notice conspicuously upon the premises if the tenant cannot be found. The plain language of N.D.C.C. ยง 33-06-02 specifies an alternative method for service of a notice of intention to evict within the meaning of N.D.R.Civ.P. 4(m) and N.D.R.Civ.P. 81(a), which ...


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