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Tornabeni v. Creech

Supreme Court of North Dakota

August 28, 2018

Louis Tornabeni, Plaintiff and Appellee
v.
Brittany Creech, Defendant and Appellant and any and all other occupants of 224 1st Ave W, Ray, ND 58849, Defendants

          Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Kirsten Marie Sjue, Judge.

          Kaitlin A. DeCrescente (argued) and H. Malcolm Pippin (on brief), Williston, ND, for plaintiff and appellee.

          Shelby Larson (argued), Minot, ND, for defendant and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶ 1] Brittany Creech appeals a judgment evicting her from property in Williams County owned by Louis Tornabeni. Creech asserts Tornabeni's notice of intent to evict was deficient, the summary eviction proceeding violated her right to due process, the district court abused its discretion in excluding certain exhibits, the court's findings of fact were clearly erroneous, and the delivery of the deed was defective and prevented Tornabeni from obtaining ownership of the property. We affirm.

         I

         [¶ 2] On April 1, 2016, Creech executed a deed conveying the subject property to Tornabeni. Tornabeni recorded the deed with the Williams County Recorder on June 2, 2016. At the time of the conveyance and subsequent to the conveyance to Tornabeni, Creech resided at the property without a lease and without any payment obligation.

         [¶ 3] On October 6, 2017, Tornabeni served Creech with a notice of intent to evict as required by N.D.C.C. § 47-32-02. The notice stated the intended eviction was the result of Creech's "failure to pay rent and failure to vacate possession of the premises after request by the property owner."

         [¶ 4] Creech failed to vacate the property as requested in the notice of intent to evict. On October 18, 2017, Tornabeni served a summons and complaint to forcibly remove Creech from the property. The district court scheduled a November 1, 2017 eviction hearing, satisfying the requirement under N.D.C.C. § 47-32-02 that a hearing be set no fewer than three days or more than 15 days after service of the summons.

         [¶ 5] Both parties appeared at the November 1, 2017 hearing. After approximately an hour and five minutes, the district court continued the hearing until November 6, 2017. The primary point of contention between the parties during the hearing was Creech's assertion her signature on the April 1, 2016 deed was forged and Tornabeni was not the owner of the property.

         [¶ 6] Creech attempted to introduce as an exhibit her vehicle registration cards during the cross-examination of Tornabeni's witness, Brenon Andreasen. Following a foundation objection by Tornabeni's counsel, the district court provided Creech the following guidance:

[Y]ou'll have to lay a bit of foundation here before I can rule on whether these should be admitted. What are these purport[ed] to show? And you're going to have to ask questions of this witness if you believe he has some kind of knowledge of this.

         [¶ 7] After additional cross-examination of Andreasen by Creech, the district court provided additional instruction to Creech: "If you want to lay foundation for this through your own testimony, you'll have to do that. But this witness didn't. Those documents weren't admitted." Creech did not attempt to reintroduce the exhibit.

         [¶ 8] Creech also sought to introduce an eviction notice from earlier proceedings in which Creech sought to evict Tornabeni from the property when Creech was the owner. She offered the notice during her cross-examination of Andreasen. Tornabeni objected, asserting it was not relevant to the present proceedings and that Andreasen could not provide the required foundation for the exhibit. The district court again advised Creech she needed to lay the foundation for the document through Andreasen as a witness. The court suggested Creech may need to lay the foundation through her own testimony. Creech never attempted to re-introduce the eviction notice.

         [¶ 9] In response to Creech's assertion that she owned the property because Tornabeni forged her signature on the April 1, 2016 deed, Tornabeni called as a witness James Duffy, the notary identified on the deed. Duffy testified he would not have applied his notary stamp or signed the deed if it was not signed by both parties in front of him. Andreasen also testified he saw Creech sign the deed. Terry Bendixson, Williams County Chief Deputy ...


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