982 N.W.2d 527
N.D.2022Background
- In 2017 Jeff Trosen leased 1,153.22 tillable acres under a farm lease requiring annual rent of $80,725.40 (2017–2022 seasons).
- Jeff paid full rent in 2017–2019, made partial payments for 2020 ($28,000) and 2021 ($30,000), leaving balances of $52,725.40 (2020) and $50,725.40 (2021).
- Plaintiffs (Shirley Trosen individually and as trustee, later substituted by Brent Trosen as personal representative and successor trustee) sued in Feb 2021 for breach of the lease; Jeff counterclaimed and filed third-party claims alleging interference.
- Shirley Trosen died May 12, 2021; litigation continued with Brent substituted.
- The district court granted plaintiffs summary judgment on breach, awarded $103,450.80 plus interest (split $51,725.40 to the Estate and $51,725.40 to the Trust), terminated the lease, dismissed Jeff’s counterclaims/third-party complaint for failure to respond, awarded plaintiffs $50,329.03 in attorney’s fees, and cancelled Jeff’s lis pendens. Jeff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of lease and entitlement to unpaid 2020–2021 rent | Lease valid; parties’ course of conduct established rent was due before April 1; unpaid balances exist | No fixed due date; dispute over offsets and apportionment after Shirley's death | Affirmed: lease enforceable; course of conduct fixed due date; breach for unpaid 2020–2021 rent; damages awarded |
| Apportionment of 2021 rent after landlord's death | Rent accrued before death and passed to Estate/Trust; no time apportionment | Common-law apportionment or trust vesting entitles post-death owners to portion of rent | Affirmed: common-law rule (absent statute/agreement) does not apportion rent as to time; no apportionment applied |
| Denial of extension to respond and dismissal of counterclaim/third-party complaint | Plaintiffs: opponent did not respond to properly supported SJ motion | Jeff: requested more time for good cause (farming, surgery, counsel workload) | Affirmed: district court did not abuse discretion denying extension; SJ dismissal appropriate under Rule 56(e)(2) for lack of response/evidence |
| Award of attorney's fees under lease | Lease authorizes recovery of enforcement costs, including fees | Clause "to the extent allowed by law" requires statutory authorization; fees amount challenged | Affirmed: contractual fee clause is enforceable under state law; district court did not abuse discretion in amount awarded |
Key Cases Cited
- Lovro v. City of Finley, 2022 ND 145, 978 N.W.2d 67 (summary judgment standard)
- In re Curtiss A. Hogen Trust B, 2018 ND 117, 911 N.W.2d 305 (trust interpretation governed by instrument language)
- Dwyer v. Sell, 2021 ND 139, 963 N.W.2d 292 (contract/trust interpretation principles)
- Schroeder v. Buchholz, 2001 ND 36, 622 N.W.2d 202 (life tenant entitled to rents and profits during life)
- Handlan v. Bennett, 51 F.2d 21 (common-law rule that rent is not apportioned as to time absent statute)
- Riedlinger v. Steam Bros., Inc., 2013 ND 14, 826 N.W.2d 340 (material breach may justify contract termination)
- Danzl v. Heidinger, 2004 ND 74, 677 N.W.2d 924 (attorney's fees recoverable only by statute or contract)
- Riemers v. State, 2008 ND 101, 750 N.W.2d 407 (trial court's discretion and competence to determine reasonable attorney fees)
- Conrad v. Wilkinson, 2017 ND 212, 901 N.W.2d 348 (lis pendens inappropriate when action only seeks money judgment)
- Investors Title Ins. Co. v. Herzig, 2010 ND 169, 788 N.W.2d 312 (purpose and limits of lis pendens)