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Chegwidden v. Evenson

Supreme Court of North Dakota

May 27, 2015

Michael and Jean Chegwidden, Plaintiffs and Appellants
v.
Mitch Evenson, Elda Evenson Living Trust, and Evenson Properties, LLP, Defendants and Appellees

Page 844

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Stacy Jean Louser, Judge.

Timothy C. Lamb, Grand Forks, ND, for plaintiffs and appellants.

Kelsey A. Krapp, Bismarck, ND, for defendants and appellees.

Carol Ronning Kapsner, Lisa Fair McEvers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. Crothers, Justice, concurring in the result.

OPINION

Page 845

Kapsner, Justice.

[¶1] Michael and Jean Chegwidden appeal from a district court judgment granting summary judgment in favor of Elda Evenson Living Trust, Mitch Evenson, and Evenson Properties, LLP (collectively " Evenson" ). We conclude the district court did not err in granting Evenson's summary judgment motion, in denying the Chegwiddens' motion to amend, and in denying the Chegwiddens' summary judgment motion. We affirm the judgment.

Page 846

I

[¶2] This case involves a landlord-tenant dispute between the Chegwiddens, as tenants, and Evenson, as landlord. In November 2011, the parties entered into a one-year written lease for a residential apartment in Minot, North Dakota. The parties did not enter into a subsequent written lease, and it is undisputed that, after November 2012, it converted to a month-to-month tenancy.

[¶3] The Chegwiddens sent multiple text messages to Evenson complaining about smoke and noise in the apartment building. Evenson put up " No Smoking" signs throughout the building and, in December 2012, delivered a letter to all the building's tenants notifying them of the state's new smoking law and Evenson's voluntary election to prohibit smoking in or on the property. The Chegwiddens sent a letter to Evenson, dated January 2, 2013, complaining about the smoke and noise in the building, noting " [t]his letter is to serve as notice. Should you continue to ignore our requests to provide a smoke free environment we will be forced to take legal action." On January 28, 2013, the Chegwiddens moved out of the apartment. Evenson first discovered the Chegwiddens had moved out on February 4, 2013. The Chegwiddens paid rent for December 2012 and January 2013, but did not pay rent for February 2013. Evenson sent the Chegwiddens a notice of non-return of the security deposit, contending notice of termination of the lease was not given and the security deposit, plus interest, was being applied to the February 2013 rent.

[¶4] In April 2013, the Chegwiddens sued Evenson alleging conversion, negligence, and intentional infliction of emotional distress, claiming Evenson wrongfully kept the security deposit, failed to stop smoking and noise in the apartment building, and failed to enforce the state's " Smoke-Free" law. Evenson counterclaimed for damages from the Chegwiddens' failure to give written notice of termination of the lease. In October 2013, the Chegwiddens moved for summary judgment, and the district court denied their motion. In December 2013, the Chegwiddens moved to amend the complaint, seeking to add a claim for punitive damages, and the district court denied their motion. In May 2014, Evenson moved for summary judgment; the district court granted Evenson's motion, dismissed the Chegwiddens' claims, and awarded Evenson costs and attorney fees.

II

[¶5] On appeal, the Chegwiddens argue their multiple complaints regarding smoke and noise in the apartment building gave Evenson constructive or implied notice of their intent to move out, they had a right to sue for the negligent enforcement of the " Smoke-Free" law, and the district court erred in granting Evenson's summary judgment motion and denying the Chegwiddens' summary judgment motion and motion to amend.

III

[¶6] The Chegwiddens argue the district court erred in granting Evenson's summary judgment motion.

[¶7] Summary judgment is the proper method to resolve a controversy without a trial if the evidence demonstrates there is no genuine issue as to any material fact or only questions of law remain, and a party is entitled to judgment as a matter of law. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. Evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Id. This Court reviews whether a trial court properly granted

Page 847

summary judgment under a de novo standard of review. Id.

A

[¶8] The Chegwiddens argue the district court erred in granting Evenson's summary judgment motion and dismissing their claim for conversion. The Chegwiddens argue Evenson withheld their security deposit without reasonable justification and failed to comply with N.D.C.C. § 47-16-07.1(2), which requires a landlord to give a tenant written notice of any portion of the security deposit not refunded " within ...


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