987 N.W.2d 350
N.D.2023Background
- Boutrous (landlord) owns former Kmart property in Bismarck; Transform (successor tenant via bankruptcy purchase) closed the store Feb 2020.
- Boutrous sued under N.D.C.C. ch. 47-32 (summary eviction) in Feb 2021, seeking possession and later damages for the tenant’s alleged lease breaches and abandonment.
- The district court held an eviction hearing (Feb 19, 2021), found Transform materially breached and ordered possession; damages were reserved for a later hearing.
- The court entered an amended eviction judgment, found Transform in contempt for failing to turn over possession, and imposed remedial sanctions ($100/day) beginning April 14, 2021.
- After a damages hearing (Nov 8, 2021), the court awarded damages and entered a second amended judgment (Jan 2022) incorporating the damages award. Transform appealed various orders in March 2022.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction to proceed under the summary eviction statute (N.D.C.C. ch. 47-32) | Boutrous: lease permits summary proceedings; eviction statute applies where lessee breaches a material lease term. | Transform: long-term, complex leasing relationship makes summary eviction inappropriate; statute ill-suited for complex disputes. | Court: No error — statute and lease authorize summary eviction; complexity alone does not defeat jurisdiction. |
| Whether Transform materially breached the Kmart lease (sufficient for eviction) | Boutrous: Transform abandoned the property, failed maintenance, and violated lease obligations — material breach. | Transform: disputed notice/cure, contested condition evidence, and argued many alleged problems predated its tenancy. | Court: Findings of material breach and notice are supported by record and not clearly erroneous. |
| Whether bifurcating possession (eviction) and damages was permissible | Boutrous: bifurcation was reasonable to decide possession quickly and allow damage issues later. | Transform: bifurcation violated the expedited eviction scheme, prejudiced Transform, prevented immediate appeal. | Court: Bifurcation was an abuse of discretion (inconsistent with ch. 47-32 timing), but error was harmless given abandonment finding. |
| Whether the contempt order/sanctions and turnover order were reviewable on appeal | Boutrous: contempt order and turnover proper; sanctions remedial. | Transform: challenges sanctions and contends turnover before final judgment prejudiced appeals and rights. | Court: Appeal of contempt order was untimely (appeal period 60 days); court lacked jurisdiction to review contempt order; turnover order issue moot given proper eviction. |
Key Cases Cited
- Ted J. Boutrous, L.L.C. v. Transform Operating Stores, LLC, 960 N.W.2d 801 (N.D. 2021) (prior opinion addressing appealability and bifurcation issues)
- Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 879 N.W.2d 423 (N.D. 2016) (summary eviction is an expedited proceeding limited to right of possession and certain damages)
- Riverwood Commercial Park, LLC v. Standard Oil Co., 698 N.W.2d 478 (N.D. 2005) (procedure inapplicable where instrument was a permit, not a lease; summary eviction ill-suited for complex disputes)
- Aurora Med. Park, LLC v. The Kidney & Hypertension Ctr., PLC, 784 N.W.2d 151 (N.D. 2010) (upholding statutory eviction timing even when occupier raises public-policy concerns)
- Tornabeni v. Creech, 916 N.W.2d 772 (N.D. 2018) (eviction is a special proceeding; continuances/management of schedule reviewed for abuse of discretion)
- Gasic v. Bosworth, 845 N.W.2d 306 (N.D. 2014) (statutory limits on combining claims and counterclaims in eviction actions)
- VND, LLC v. Leevers Foods, Inc., 672 N.W.2d 445 (N.D. 2003) (whether a lease has been fully complied with is a factual finding)
- Gimbel v. Magrum, 947 N.W.2d 891 (N.D. 2020) (bench-trial standards: clearly erroneous for facts, de novo for law)
- Kettle Butte Trucking LLC v. Kelly, 910 N.W.2d 882 (N.D. 2018) (party must obey court order until reversed; contempt enforcement and appealability rules)
- Orwig v. Orwig, 924 N.W.2d 421 (N.D. 2019) (appeal deadlines are jurisdictional)
- Rhodenbaugh v. Rhodenbaugh, 925 N.W.2d 742 (N.D. 2019) (dismissing untimely appeal from contempt order)
- Farmers Elevator & Mercantile Co. v. Farm Builders, Inc., 432 N.W.2d 864 (N.D. 1988) (distinguishing severance and separate trial; Rule 54(b) certification and finality)