*1
Carol Appellant.
No. 20090133. of North Dakota.
Supreme Court 17, 2010.
Feb. *2 Garaas, N.D., Fargo, T. for
Jonathan plaintiff appellee. and Johnson, self-represented, Fargo, Carol N.D., appellant. defendant MARING, Justice. appeals Johnson from a
[¶ 1] Carol judgment evicting her from a townhouse Kathy she rented from Nelson and order- ing pay unpaid Johnson Nelson $520 fees, fees, attorney rent and late $400 costs and disbursements. $130 in- argues Johnson notice of properly tention to evict her was not served on her and the court erred in not making findings on her defenses of waiver estoppel dismissing her coun- retaliatory terclaim eviction. We affirm. I Nelson leased a townhouse to Fargo Johnson in under a six month writ- ten from September lease through March 2009. The lease re- quired per Johnson to Nelson $495 month in rent with due on the day required first of each month and also security provide deposit. Johnson to $400 At the time the lease was execut- ed, per- did not have a full-time by February February rent with the difficulty paying and she had job, manent following due the week. On December remainder In a notice dated her rent. had Nelson Chris Johnson with provided *3 provide three-day Nelson Johnson with a her December rent notice that three-day of intention to evict Johnson under days had three notice and that she past due was $495, ch. This record includes plus N.D.C.C. 33-06. amount of past-due pay to 10, 2009, February Nelson’s affidavit fees, action would Chris in or an eviction late $25 three-day service of the notice personal ch. 33-06. of under N.D.C.C. be commenced evict, Nelson, to which states that notice was of intention that According to eighteen age Nelson “is over the premises. leased Chris the door of the placed on (18) forego- a to the years and is not received that notice admitted she Johnson therein,” or interested and that ing rent and action past-due paid thereafter and 2009, Johnson, February p.m. taped at 6 he she on According to the late fee. on the door at Johnson’s residence. January 2009 rent on her was also late Nelson testified that he served the procure not full- Chris she did payment because three-day going notice on Johnson January, the end of until employment time month, February p.m. townhouse at 6 on plus for that her paid her rent and she door, doorbell, installments, fee, knocking ringing on the in with late two a $25 answered, taping the and when no one final installment on Janu- payment notice on the door. ary 2009. asserts she did not re- Febru- Johnson pay [¶ 6] did not her Johnson
[¶ 4] notice, by letter and February. first of ceive rent on the ary 2009 Ka- February provided she telephone conversa- dated she had a She claimed with a notice of intention thy of Febru- Nelson the first week tion with Nelson townhouse on March vacate the February rent. John- ary regarding of the six-month lease. John- that she at the end she told Nelson son maintained living conditions claims she found her paycheck would be son February her hoped began, shortly after the lease unacceptable partial payment a rent permit sufficient to Fargo Police De- and she contacted the to contact Nel- requested permission and in the about “electronic hazards” receiving partment payment after son to discuss townhouse, evidenced Johnson, which she believed she According to paycheck. reported frequencies. radio Johnson February 9 to discuss the Nelson on called metal Fargo “tappings Police on message with to the and left a payment rent townhouse, which she be- son, pipes” Nelson. Johnson as- Chris Nelson’s surreptitious a form of Kathy on lieved evidenced also called Nelson serted she with surveillance devices. message on an intrusion February 10 and left machine, asking pay the en- answering 13, 2009, process February On fee, a late from her payment, tire rent with with a summons served Johnson server paycheck. Johnson claimed February 20 action in this eviction complaint and Kathy from response not receive a she did complaint to her the summons and taping arrangement Nelson and assumed unable to after he was p.m. door at 6:35 acceptable. that she her. Johnson admitted locate later found the Nelson, ring and heard the doorbell According Kathy she taped to her door complaint and half the summons pay agreed to allow Johnson parties delayed to a agreed that she also received and even the February 13 and until complaint by rent Johnson the summons and copy comply agreement with the claimed did mail on pay and her rent then. The court complaint alleged Nelson’s evicting granted Kathy judgment Nelson prem- failed to surrender the Johnson had premises ordering from the sought to evict her and to collect ises unpaid her to rent and $520 fees, fees, rent, attorney late overdue fees, fees, attorney late $130 $400 costs. The summons commanded Johnson costs and disbursements. *4 25, 2009, appear February in court on to an- against complaint. defend Johnson II eviction, swered, retaliatory waiv- alleging er, equitable estoppel. and She claimed argues Johnson the district that, agreements consistent with verbal personal jurisdiction court did not have a prior payments, rent she had verbal denying over her and erred in her motion early in agreement Kathy with proper to dismiss because Nelson failed to February of the 2009 for late ly three-day serve the notice of intention rent, fee, by February with a late 20. under evict N.D.C.C.
Johnson also moved to dismiss the eviction
4. She claims she did not
N.D.R.Civ.P.
action, claiming she did not receive the
of
receive the notice
intention to evict and
three-day notice of intention to evict and
argues the notice must be served
she did not learn about the eviction action
a
complaint
same manner as
summons and
until she found the summons and com-
is served under N.D.R.Civ.P. 4.
plaint taped
February
to her door on
North Dakota
has enacted forc-
proceed-
ible detainer statutes for eviction
24, 2009,
February
[¶ 9] On
ings.
Inv. Inc.
Goodman
v. Swanston
tendered a check for the
rent
(N.D.
Co.,
Equip.
299 N.W.2d
788
and late
attorney.
fee to
Nelson’s
1980). During
proceeding,
the statu-
trial,
At the
the district court
tory provisions for an eviction action were
treated Johnson’s motion to dismiss for
33-06, but,
ch.
codified N.D.C.C.
effec-
claimed
failure
serve the
no-
1, 2009,
August
tive
have been recodified
tice as a defense to the
action
eviction
ch. 47-32 without
substantial
required Kathy
prove proper
Nelson to
change.
N.D.
See 2009
Sess. Laws ch.
In
ruling,
of the notice.
an oral
§§
It8.
is well established that these
posted
court found Chris Nelson
statutory provisions
pro-
are intended to
three-day notice on Johnson’s door after
expedited, inexpensive,
vide an
and simple
he was unable to find Johnson and service procedure
possession
to recover
of real
complete
posting.
with the
The court
See,
property.
e.g., Riverwood Commer-
also found
Johnson had failed to
her
Park,
Co.,
cial
LLC Standard Oil
February rent and late
and was still
¶
fees
118, 6,
ND
fied
“may
notice of intention to evict
be served
of N.D.C.C.
33-06-
(holding
period
time
defendant,
as a
is served and
rather
and returned
summons
appearance
02 for
or,
found,
under
complaint
party
returned
if the
cannot be
than time to answer
12, governs
county
time within
the sheriff of the
or a
N.D.R.Civ.P.
then
appear
must
and defend
process
posting
conspicu
which tenant
server
the notice
action).
4(m), N.D.R.Civ.P.,
Rule
ously upon
premises.”
eviction
The use of the
provides that
statute
“may”
statutory
“[i]f
in a
is ordi
word
scheme
specify
a method of
service and does
narily
“permissive
understood as
rather
service,
must be made under this
mandatory
operates
than
to confer
rule.”
Adoption of KS.H.,
discretion.” Matter of
(N.D.1989).
“The
N.W.2d
language of
plain
The
15]
[¶
disjunctive
word ‘or’ is
in nature and ordi
separate procedures
§ 33-06-02 outlines
narily indicates an alternative between dif
and,
summons
if re
for service of the
things or
ferent
actions.”
State v.
of the written notice of
quired, for service
FreeEats.com, Inc.,
2006 ND
specific language
to evict. The
intention
phrases separated
N.W.2d 828. “Terms or
for service of the notice
intention
separate
independent sig
have
‘or’
be
provides
“[t]he
evict
nificance.” Id.
as a summons is
served and returned
or, if
served and returned
cannot
plain language
provi-
found,
county
then
the sheriff of the
sions in N.D.C.C. 33-06-02 for service of
or
the notice con
server
*6
three-day
the
written notice of intention to
premises.”
the
spicuously upon
N.D.C.C.
“may”
evict indicates that use of the word
Goodman,
§
In
33-06-02.
N.W.2d
coupled
for service of the notice
with the
788-90,
three-day
decided the
Court
of the word “or”
permissive
use
quit,
written notice to
which is now called
by
authorizes the notice
be
served
one
evict, replaced
a notice of intention to
the
of two different methods:
either
the
per
common law demand for
same manner as
summons is served and
rent
pay
mitted a tenant
within the
returned,
found,
if
party
or
the
cannot be
three-day period to abate the action and
by
process
then
the sheriff or a
server
nonpayment
avoid forfeiture for
of rent.
posting
conspicuously upon
the notice
the
144,
Nurnberg,
See McLain v.
16 N.D.
Dev.,
premises. See Deacon’s
LLP (1907)
243, 244
(stating
112 N.W.
if
Lamb,
ND
vice
be made within the state
when the
intention to evict was
person
legal age
party
not a
to nor
served on
his
originally
interested in the action.” As
10, 2009, affidavit of personal
3(c)(1)
promulgated in
N.D.R.Civ.P.
states he was over the age of 18 and was
provided
that a summons
be served
party
not a
to nor
interested
the action.
“by any person
legal
within the state
Chris Nelson testified he had served three-
age
not a
to the action.” Effective
day
past
notices
for
Nelson.
August
language
the relevant
There is sufficient evidence in this record
present
amended
to
its
form
support
a conclusion that Chris Nelson
4(d)(1)
N.D.R.Civ.P.
and is consistent with
was a person
“legal age.”
There was
McArthur,
Van
v.
Sickle
110 N.W.2d
property
evidence that the
was owned
(N.D.1961)
Farrar,
Froling
282-83
Nelson,
husband,
by Kathy
her
and her
639, 643-44,
77 N.D.
44 N.W.2d
765-
parents
husband’s
and that Chris Nelson
(1950), in
which this Court construed
did not have an ownership interest in the
prior statutory
for
service of a
property.
any contrary
the absence of
“by any
person
summons
other
not a party
evidence, Chris Nelson
a person
is not
who
to the action.” This
Court declined
might properly
joined
have been
a party
as
“party”
construe
in a technical sense and
action,
plaintiff in
reject
this
and we
John-
“party”
instead construed
“include[ ]
son’s claim that Chris Nelson’s status as
only
parties,
the named
any person
but
Kathy Nelson’s son
him
makes
interested
who had such an interest in the action that
in the
meaning
action within the
might properly
joined
he
have been
as a
4(d)(1).
record,
N.D.R.Civ.P.
On
we
Sickle,
party plaintiff.”
(citing
Van
at 283
conclude the service of the notice of inten-
643-44,
Froling,
782
Elken,
107, ¶4,
2007 ND
783
29, 31,
899,
(1949)).
there has been an accord and satisfaction N.D.
39 N.W.2d
900
“
ordinarily
question
a
of fact.
action,
Herb Hill
In an eviction
‘the right
to the
Ins.,
Radtke,
651,
Inc. v.
possession
380 N.W.2d
654
of the real estate
only
is the
(N.D.1986).
findings
The court’s
are suffi-
fact that can
rightfully litigated
be
unless
”
cient to understand the basis for its
damages
Anderson,
deci-
or rent is claimed.’
¶
52,
Acquisitions,
Nolin,
sion. Global
2001 ND
11 (quoting Vidger
353,
v.
10 N.D.
¶¶ 18-19,
354,
¶3
(1901)).
posing of Johnson’s claims of waiver and V equitable estoppel. judgment. [¶ 36] We affirm the IV WALLE, GERALD [¶ 37] W. VANDE Johnson argues the dis C.J., DANIEL J. CROTHERS and trict rejecting court erred in her claim for KAPSNER, JJ„ CAROL RONNING retaliatory eviction. She claims evic this concur. tion action begun immediately after her notice to SANDSTROM, Justice, dissenting. Nelson that she intended to vacate the I respectfully dissent. property upon expiration of the six- month lease on March 2009. Johnson majority suggests that suggests the eviction action was initi opportunity notice and to pay ated because she had contacted local offi summary before eviction is a mere formali- laws, cials possible about violations of in ty. It required is not. It was a prerequi- cluding surveillance laws. Inv., site to this eviction. Goodman Inc. Co., v. Equipment Swanston 299 N.W.2d [¶ 35] The district court decided this (N.D.1980). Goodman, 789 eviction action was appropriate quoted favorably Court the South Dakota a retaliatory venue for claim for eviction. Supreme Springs Court Dakota Hot Co. 33-06-04, N.D.C.C., specifies Section Young, v. 9 S.D. 70 N.W. interposed “[n]o counterclaim can be in [an (1897): action, except eviction] as a setoff a court, damages demand made for No as far or for rents as our researches have extended, and profits.” See Riverwood Commercial has held that without a de- Park, Co., LLC Standard Oil 2007 ND mand of rent from the tenant in some ¶36, 16, form, purpose N.W.2d 101. The a forfeiture could predicated provision precluding upon counterclaims in failure to the same. Such “ eviction get speedy actions is ‘to deter- law manifestly unjust, would be so possession mination of bringing without consequences, would lead to such serious ” any extraneous matters.’ Anderson v. give we cannot to our statute such a Heinze, construction, 2002 ND required 643 N.W.2d unless to do so (quoting Alger, Nomland Motor Co. v. pointed clearer and more than *11 asserts, any at no citation to ty law are now consid- with in the we
that used
however,
construction,
authority
degree
that
“some
requires
this
... A
ering.
overwhelming
quit
diligence.”
body
But the
of a notice to
of
makes the service
requires
law
not “some de-
demand, thereby relieving
diligence,
the landlord
of
diligence.
com-
of
necessity making
gree”
the
the
of
from
demand,
gives the
and which
mon-law
The
Supreme
United States
days
his
pay
three
in which to
the
tenant
Lindsey,
in
held Greene v.
456 U.S.
Court
us,
demand,
it seems
after such
rent
(1982):
102 S.Ct.
72 L.Ed.2d
of
clear intent
the
carries into effect the
efficacy
But whatever
in
the
lawmaking power.
cases,
that,
many
it
is clear
the cir-
Springs
Dakota
Co.
(quoting
Id.
Hot
case, merely posting
cumstances of this
842; 843
Young, 9 S.D.
70 N.W.
on an
door
apartment
notice
does not
(1897)).
held:
This Court then
satisfy minimum
pro-
standards
due
by enacting
cannot conclude that
We
In a
number
in-
significant
cess.
forcible-entry
statutes
our
and detainer
stances,
posting pursuant
reliance on
a radical
Legislature intended such
the
provisions
results in a
the
of 454.030
from the
wherein
departure
common law
provide
failure to
actual notice
pay-
to forfeiture a demand for
prior
Indeed, appellees
tenant concerned.
rather
had to be made under
strict
ment
to have
precisely
claim
suffered
such a
to a situation in which no
procedures
failure of actual notice. As the
payment
required
for
and no
demand
aware,
were
notices posted
servers
well
pay
permitted.
rent is
opportunity
apartment
doors in the area where
Rather,
agree
we
with the rationale of
“not
these tenants lived were
infre-
Dakota Supreme
the South
Court as
quently”
by children or
removed
other
Co.,
Springs
expressed
Dakota Hot
they
tenants before
could have
in-
their
that the
of the notice to
supra,
purpose
conditions,
tended effect.
these
Under
for
quit replaces
demand
apartment
notice
posting on the
door
permits
the tenant to
the rent
cannot be
a “reliable means
considered
three-day
contained in
period
within
acquainting
parties
interested
the notice.
rights
fact
their
are
before
Mullane,
[306],
courts.”
at
U.S.
Id.
(1950)
].
S.Ct.
found” in trying to find give law to it no choice but treat the See, person. e.g., 62B Am.Jur.2d Pro- ineffective notice as effective: (2005) § 144 (stating validity cess providing statutes for substituted service THE COURT: Yes. On 5th process may depend be held to on the p.m., about 6:00 that he to the went defendant, fact that after due dili- location, that he attempted to find Ms. gence, cannot be found and noting per- Johnson —he attempt made an to find sonal service can be effected the exer- her, door, rang knocked on the the door- cise of diligence, reasonable substituted bell, her, that he did not find and there- to). service is not fore, to be resorted posted that he then on the front majority interprets legislative history door. conspic- clear
That is—it’s con-
uous, the front door is nailing to *13 didn’t says she Ms. Johnson
spicuous.
receive, re- I her that she didn’t believe However, the act of service it.
ceive posting on the front
complete upon case, legis- particular
door. no discretion. When gives me
lature door, that posted
that was front then blew complete. it
service is If off
later, The service matter. it doesn’t complete under law. added.)
(Emphasis as court erred The district
matter of law. I and remand. would reverse DALE SANDSTROM V.
2010 ND Appellee WOLT, Plaintiff and WOLT, Appellant. Defendant and
Steve
No. 20090103.
Supreme of North Dakota. Court
Feb. 16, 2010.
Rehearing Denied March