This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-01-1340

 

John Richter,
Appellant,

Chantal Cash,
Appellant,

vs.

Michael Czock,
Respondent,

Patricia Czock,
Respondent.

 

Filed March 5, 2002

Affirmed

Peterson, Judge

 

Wright County District Court

File No. C4011620

 

 

John Richter and Chantal Cash, 117 Bridge Avenue West, Delano, MN  55328 (pro se appellants)

 

 

Michael Czock and Patricia Czock, 813 Elm Avenue, Delano, MN  55328 (pro se respondents)

 

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

This appeal is from a judgment awarding appellants-tenants John Richter and Chantal Cash a money judgment against respondents-landlords Michael and Patricia Czock.   We affirm. 

FACTS

            The parties entered into a written month-to-month residential lease agreement on August 1, 1998.  The lease is a preprinted form with several blanks that are filled in with handwritten information.  One of the preprinted form provisions requires 60 days’ notice to terminate the tenancy, and one of the filled-in blanks states that the lease continues “until either party terminates with a 45 day notice.”  In a third provision, which is labeled “Notice Period,” the phrase “Two (2) months” is crossed out and “45 days” is handwritten next to it.  Both tenants and one of the landlords signed the lease. 

            On March 22, 2001, a landlord came to the rental unit to make repairs without giving the tenants 24-hours’ notice, and the tenants allowed the landlord in.  The tenants claim that when a landlord came to the rental unit on March 30, 2001, to repair a hole in the sink, he was belligerent toward them.  On April 5, 2001, the tenants notified a landlord about repairs that needed to be made, including a rotted floor in the bathroom.  On the same day, the landlord went to the rental unit to make repairs, knocked on the door, and after receiving no response, attempted to enter with a key.  The tenants were present and refused to admit the landlord.  The tenants called the police, and a police report was filed.

            On April 11, 2001, the tenants requested a housing inspection.  On April 12, 2001, an inspection was completed and violations were found, including a sagging roof, rotted flooring beneath the toilet, a loose sink in the bathroom, and poor ventilation in the bathroom.  The landlords claim that they did not have any prior notice of the violations.  The landlords determined that repairs to correct the violations were too costly and entered into an agreement to sell the property with a closing date of July 2, 2001.  On April 30, 2001, the tenants were given notice that the lease was being terminated, effective June 15, 2001.  When the conflicting notice provisions in the lease were brought to a landlord’s attention in May 2001, the landlord offered to extend the effective date of the termination to July 1, 2001.  The tenants declined and told the landlord that notice must be re-served, allowing them an additional 60 days.

            On June 4, 2001, the tenants filed an affidavit for rent escrow for one month’s rent, requesting rent abatement and claiming that their lease was terminated in retaliation for requesting the inspection.  On June 11, 2001, the landlords filed an eviction action.  Both cases were heard on June 18, 2001.  In the tenants’ case, the district court: (1) ordered rent abatement of $100 per month for April, May, and June 2001 as damages for the landlords’ violation of the covenant of habitability under Minn. Stat. § 504B.161; (2) awarded the tenants reimbursement for heating bills they paid; (3) denied the tenants’ motion for damages for violating their right to privacy; and (4) found that the parties agreed to a 45-day notice period for rent increases and for terminating the lease.  This appeal is from the judgment in the tenants’ case.

D E C I S I O N

1.         The tenants argue that the 60-day preprinted notice provision in the lease was the provision agreed to by the parties, rather than the 45-day provision written in by the landlords.  They claim they were not aware that the lease had been altered, and they are not sure that the 45-day provision was in the lease when they signed it.

[A]mbiguity exists in a contract if it is susceptible to more than one construction.  Where language is ambiguous, courts may resort to extrinsic evidence.  This rule applies when determining the intention of parties to a lease.

 

Medinvest Co. v. Methodist Hosp., 359 N.W.2d 714, 716 (Minn. App. 1984) (citations omitted), review denied (Minn. Mar. 21, 1985).  The conflicting provisions in the lease make it ambiguous.

[W]here there is ambiguity in the contract and the construction depends upon extrinsic evidence as well as the writing there exists a question of fact for determination by a jury or a court sitting without a jury.  While the construction of a contract and its legal effect are questions of law for the court, the terms of the contract if ambiguous are matters of fact to be determined in the same manner as other facts.

 

Ring v. Minn. Rd. Builders, Inc., 263 Minn. 391, 395, 116 N.W.2d 582, 585 (1962) (citations omitted).  The district court’s finding of fact will not be overturned “unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  A district court’s finding of fact is clearly erroneous when “the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).

            The tenants testified that they could not remember if the 45-day handwritten provision in the lease was there when they signed it.  Because the tenants’ testimony was uncertain, we are not left with a definite and firm conviction that a mistake was made when the district court found that the parties agreed that a 45-day notice of termination was required.       

2.         “The standard of review on appeal from a civil judgment is whether the evidence sustains the findings and whether the findings support the conclusions.”  Minneapolis Pub. Hous.  Auth.  v. Greene, 463 N.W.2d 558, 560 (Minn. App. 1990) (citation omitted).  Findings of fact shall not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  A reviewing court need not defer to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n  v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

Minn. Stat. 504B.161, subd. 1 (2000), provides:

In every lease or license of residential premises, the landlord or licensor covenants:

(1) that the premises and all common areas are fit for the use intended by the parties; [and]

(2) to keep the premises in reasonable repair during the term of the lease or license, except when the disrepair has been caused by the willful, malicious, or irresponsible conduct of the tenant or licensee or a person under the direction or control of the tenant or licensee[.]

 

The district court awarded the tenants a $100 per month rent abatement beginning in the month when the inspection occurred as damages for violating the covenant of habitability in Minn. Stat. § 504B.161.  The tenants argue that the rent abatement should apply to the entire lease period.  The landlords argue that they had no notice of the violation until the inspection occurred and that rent should be abated from the time the tenants gave written notice.  Neither party cites any authority for its argument.

            Under Minn. Stat. § 504B.425(a), (e) (2000), if the court finds that a violation of clause (1) or (2) of Minn. Stat. 504B.161, subd. 1, has been proved, in its discretion,

[t]he court may find the extent to which any uncorrected violations impair the residential tenants’ use and enjoyment of the property contracted for and order the rent abated accordingly.  If the court enters judgment under this paragraph, the parties shall be informed and the court shall determine the amount by which the rent is to be abated.

 

(Emphasis added.) See also Minn. Stat. §§ 504B.395, subd. 1(1) (procedure for bringing tenants’ action), .001, subd. 14(2) (2000) (defining violation).

            Under this statute, the court has discretion to order rent abatement; it is not required to order abatement.  Compare Minn. Stat. § 645.44, subd. 15 (2000) (stating “‘may’ is permissive”) with Minn. Stat. § 645.44, subd. 16 (2000) (stating “‘shall’ is mandatory”).  Appellants have not shown that the district court abused its discretion in abating rent only during the period that it was shown that the landlord knew about the violations.

3.         It is a defense to an eviction action based upon a notice to quit for the tenant to prove by a fair preponderance of the evidence that the eviction “was intended in whole or part as a penalty for the [tenant’s] good faith attempt to secure or enforce rights under a lease.”  Minn. Stat. § 504B.285, subd. 2(1) (2000).  However, if the notice to quit was served within 90 days of a tenant’s good-faith attempt to secure or enforce lease rights, the burden of proof shifts to the landlord to show by a fair preponderance of the evidence that the notice to quit was not retaliatory.  Id., subd. 2(2)

            The tenants argue that the notice to quit was served within 90 days of their attempt to secure their rights by requesting a housing inspection and that the landlord did not meet the burden of proving that the notice to quit was not retaliatory.  However, although the tenants stated in their affidavit of escrow for rent that the lease termination was retaliatory, this claim would have been a defense in the landlord’s eviction action, which was considered at the same hearing as the tenants’ rent-escrow action, and it is not addressed in the judgment from which the tenants have appealed.  Therefore, the issue is not properly before us. 

4.         The tenants argue that the landlord violated Minn. Stat. 504B.211, subd. 2 (2000), which provides:

Except as provided in subdivision 5, a landlord may enter the premises rented by a residential tenant only for a reasonable business purpose and after making a good faith effort to give the residential tenant reasonable notice under the circumstances of the intent to enter.

 

In their brief, the tenants address several incidents in which they claim this statute was violated, but at trial, they testified only about incidents on March 22, March 30, and April 5, 2001.  The incidents not presented and considered by the district court are not properly before this court, and we decline to consider them.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).   Regarding the incidents properly before this court, appellants’ testimony indicates that the landlord did not give advance notice of entry on March 22 and March 30, but the landlord appeared when the tenants were home, and the tenants allowed the landlord into the premises. 

            On April 5, the landlord attempted to enter the premises without giving prior notice, and the tenants did not allow the landlord in, but instead, called the police.  Nothing in the record demonstrates that the landlord entered the premises on April 5.  Also, under Minn. Stat. 504B.211, subd. 4(1) (2000), an exception to the notice requirement exists if “immediate entry is necessary to prevent injury to persons or property because of conditions relating to maintenance, building security, or law enforcement.”  The landlord testified that because tenant John Richter said that the bathtub was going to fall through the floor, the landlord needed to enter the premises immediately to determine if repairs were needed so that no one would be injured.  In light of this testimony, we cannot conclude that the district court erred by ruling that the landlord did not violate the statute.

5.         The tenants argue that the district court erred when it let the landlord speak before them and refused to admit evidence, including pictures of the repairs needed to the property and a police report substantiating their claim of illegal entry. 

Minn. R. Civ. P. 39.04 allows a party bringing an action to give its opening statement first.  However, the tenants brought an action for tenant’s remedies, and the landlord brought a separate eviction action.  The tenants asked to have both matters heard on the same day, and the district court considered both actions during a single hearing.  Under these circumstances, both parties met the condition for making the first opening statement.

            After carefully reviewing the transcript, we conclude that the court did not refuse to admit the tenants’ evidence.  Although the tenants brought evidence to the hearing and referred to the evidence during the hearing, they never asked to have the evidence admitted.  Therefore, the tenants have not preserved the admission of the evidence as an issue on appeal.  See Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (reviewing court must limit itself to consideration of only those issues that record shows were presented to and considered by district court); State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988) (pro se defendant must comply with all procedural rules; no extra benefit will be given to pro se litigants; pro se defendant held to standard of attorney in presenting appeal).

            Affirmed.