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Swenson v. Mahlum

Supreme Court of North Dakota

May 16, 2019

Willis G. Swenson, and Dayna L. Johnson, Plaintiffs, Appellants, and Cross-Appellees
v.
Kyle Mahlum, Defendant, Third-Party Plaintiff, Appellee, and Cross-Appellant
v.
Carol Hodgerson, Gerard Swenson, Lee Alan Swenson, and Mary Ann Vig, in their individual capacities and as heirs to the estate of Junietta Swenson, Third-Party Defendants and Appellees

          Appeal from the District Court of Burke County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

          Taylor D. Olson (argued) and Peter H. Furuseth (on brief), Williston, ND, for plaintiffs, appellants, and cross-appellees Willis G. Swenson and Dayna L. Johnson.

          Ryan G. Quarne, Minot, ND, for defendant, third-party plaintiff, appellee, and cross-appellant Kyle Mahlum.

          Elizabeth L. Pendlay, Crosby, ND, for third-party defendants and appellees Carol Hodgerson, Gerard Swenson, Lee Alan Swenson and Mary Ann Vig.

          Opinion of the Court by Crothers, Justice.

          Crothers, Justice.

         [¶1] Willis Swenson appeals and Kyle Mahlum cross-appeals from an order dismissing Willis Swenson's claims against Mahlum and Mahlum's claims against Carol Hodgerson, Gerard Swenson, Lee Alan Swenson, and Mary Ann Vig ("third-party defendants"). Willis Swenson argues the district court erred in dismissing his breach of contract claim against Mahlum. We reverse the order and judgment and remand.

         I

         [¶2] Robert and Junietta Swenson owned real property in Burke County, North Dakota described as:

Township 163 North, Range 89 West
Section 28: NW1/4
Township 163 North, Range 88 West
Section 19: NE1/4
Section 29: NE1/4
Section 31: E1/2NE1/4
Section 32: SE1/4

         Willis Swenson and the third-party defendants are the children of Robert and Junietta Swenson. In 2004, Robert and Junietta Swenson conveyed the property to their children as joint tenants, reserving a life estate for themselves. In 2005, Robert Swenson died and Junietta Swenson became the sole life tenant.

         [¶3] In 2008, Junietta Swenson leased the property to Willis Swenson. Willis Swenson agreed to rental payments of $20, 016 per year, due in installments of $10, 008 on March 15 and October 15.

         [¶4] In December 2009, Willis Swenson leased the property to Mahlum for $31, 022.50 per year, due on March 1. The Swenson-Mahlum lease became effective in March 2010 and stated it would expire in October 2019. The lease also stated, "In the event of Junietta W. Swensons death, payments shall be made as follows. Semi annual payments of $10, 008 (ten thousand, eight and 00/100) on March 15 and October 15 to Swenson farm land trust. A single payment to Willis G Swenson of $11006.50 (Eleven thousand, six and 50/100) on March 1st of each year."

         [¶5] In November 2011, Willis Swenson signed a new lease with Junietta Swenson. The lease required Willis Swenson to pay $10, 008 on March 15 and October 15 of each year. The lease began in 2012 and stated it would expire in 2022. The lease permitted Willis Swenson to assign or sublet the property to any person.

         [¶6] In July 2012, Lee Alan Swenson was appointed guardian and conservator for Junietta Swenson. In January 2013, Lee Alan Swenson, as guardian and conservator, leased the same property to Mahlum that Willis Swenson already was leasing to Mahlum in the December 2009 lease. The new lease required Mahlum to pay Junietta Swenson $31, 122.50 each year on March 1. Junietta Swenson died on November 20, 2013. Mary Vig, as personal representative of Junietta Swenson's estate, informed Mahlum that future rental payments should be split and made to each of Junietta Swenson's children in equal amounts.

         [¶7] In January 2017, Willis Swenson and his daughter, Dayna Johnson, sued Mahlum for unpaid rent. Willis Swenson alleged Mahlum was required to pay him $31, 022.50 each year under the 2009 lease, and Mahlum failed to pay any rent in 2013, 2014, 2015, and 2016. Willis Swenson requested $124, 090 in damages.

         [¶8] Mahlum answered and filed a third-party complaint, suing the third-party defendants, in their individual capacities and as heirs to the Estate of Junietta Swenson, for unjust enrichment. He alleged in 2013 he paid $31, 122.50 to Junietta Swenson under the terms of the 2013 lease. He also alleged in 2014, 2015, and 2016 he paid $31, 122.50 in rent to each of Junietta Swenson's five children. He claimed that the third-party defendants have been unjustly enriched, and that the ...


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