This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).




Tamarack Court, Inc., et al.,


Lance Gerald Milliman,


Filed August 12, 2003


Peterson, Judge


Stearns County District Court

File No. C7024317



Sheldon R. Brown, Shadduck Young & Brown, LLP, 63 Oak Avenue South, P.O. Box 859, Annandale, MN  55302 (for respondents)



Lance G. Milliman, P.O. Box 61, South Haven, MN  55382 (pro se appellant)



            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Huspeni, Judge.*

U N P U B L I S H E D    O P I N I O N


In this eviction dispute, appellant-tenant Lance Gerald Milliman argues that the district court erred by (1) improperly assigning to him the burden of proving retaliatory eviction; (2) not allowing him to argue that the eviction was part of a pattern of retaliatory conduct; (3) limiting his cross-examination of respondent Dale Wagner; and (4) allowing Wagner to ask questions from the witness stand.  We affirm.


            Respondent Tamarack Court, Inc., is a corporation owned by respondent Dale Wagner that operated a manufactured-home park in Stearns County.  Milliman owned and lived in a manufactured home located on lot 18 in the park.  Milliman rented lot 18 as a month-to-month tenant.

            In April 2002, Milliman reported to Stearns County that the septic system for lot 18 was not working properly.  Lowell Rushmeyer, an environmental specialist employed by the county, inspected the system and determined that it could not be fixed and would have to be replaced.  Stearns County notified respondents that either the septic system had to be replaced or the manufactured homes on the sites served by the septic system had to be removed within 90 days of May 24, 2002.

            Wagner determined that installing a new septic system, which would cost from $6,000 to $10,000 would not be cost effective because a new system built over the old system would have a short life span due to poor ground absorption.

Tamarack Court obtained matching funds through the Federal Emergency Management Agency (FEMA) to construct a storm shelter.  Connie Bauman, a project-impact coordinator for Stearns County who was involved in obtaining the funding from FEMA, testified that she believed that the storm shelter would be a significant improvement to Tamarack Court and would benefit the health and safety of its residents.

Lot 18 was one of two possible sites for the storm shelter.  The other possible site was eliminated because construction would have been more difficult because a septic system was located on that site, trees would have to be removed, and fill would have to be brought in.

            On May 31, 2002, respondents served Milliman with an eviction notice stating that they would not construct a new septic system on lot 18 due to its short life span and that a storm shelter would be constructed on lot 18.  The notice stated that Milliman had to remove his home from lot 18 within 90 days.

            When Milliman did not vacate the lot within 90 days, respondents commenced this eviction action.  In his answer, Milliman raised a retaliatory-eviction defense.  He also filed a counterclaim seeking damages, attorney fees, an order directing respondents to repair or replace the septic system for lot 18, and other relief.

            At a pretrial hearing, Milliman indicated that he understood that the scope of the eviction action was limited to the issue of whether he could be evicted.  Milliman stated:

I this morning spoke to an attorney briefly.  She explained to me basically what my options were.  And * * * what I am going to do at this time * * * is withdraw my motions and proceed to trial on the one single defense of retaliatory eviction.  And otherwise I am going to waive – I am withdrawing my motions.


The district court granted respondents’ motion to limit the trial to the issue of Milliman’s right to possession of lot 18 and to strike Milliman’s counterclaim and parts of his answer unrelated to retaliatory eviction.

            At the court trial, Wagner denied that he decided to evict Milliman because Milliman reported the failing septic system to the county.  Wagner explained that installing a new septic system would not have been cost effective because a new system would have cost up to $10,000, the rent on the lot was only $150 a month, and lot 18 was the best location to construct the storm shelter.

            The district court issued a writ of recovery of premises and order to vacate, which the court stayed until October 15, 2002.


            The plaintiff in an eviction action is entitled to a writ of restitution if the court finds that the allegations in the complaint are true.  Minn. Stat. § 504B.355 (2002).  The standard of review applicable to a judgment in a restitution action is whether the district court’s findings of fact are clearly erroneous.  See Minneapolis Cmty. Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn. App. 1985) (applying predecessor to Minn. Stat. § 504B.355), review denied (Minn. Feb. 19, 1986).


Minn. Stat. § 327C.09 (2002) provides:

            Subdivision 1.  Cause required.  A [manufactured home] park owner may recover possession of land upon which a manufactured home is situated only for a reason specified in this section or section 327C.095.


* * * *


            Subd. 8.  Improvements.  The park owner has specific plans to make improvements to the park premises which will substantially benefit the health and safety of the residents or have been ordered by a government agency, and which necessitate removal of the resident’s manufactured home from the park.


            Either party to a month-to-month lease may terminate the lease by providing a written notice to the other party at least one rental period in advance of the termination date.  Minn. Stat. § 504B.135(a) (2002).  But a landlord may not terminate a lease in retaliation for a tenant’s good-faith attempt to enforce legal or contractual rights.  Minn. Stat. § 504B.285, subd. 2(1) (2002).  If the notice to quit is served within 90 days after a tenant’s good-faith attempt to secure or enforce lease rights, the burden of proof shifts to the landlord to show “that the notice to quit was not served in whole or part for a retaliatory purpose.”  Id., subd. 2.  The Minnesota Supreme Court interpreted the statutory predecessor to section 504B.285 to require

a substantial nonretaliatory reason for the eviction, arising at or within a reasonably short time before service of the notice to quit.  A nonretaliatory reason is a reason wholly unrelated to and unmotivated by any good-faith activity on the part of the tenant * * * .


Parkin v. Fitzgerald, 307 Minn. 423, 430, 240 N.W.2d 828, 832 (1976).

            Milliman made his report to the county less than 90 days before he was served with the eviction notice.  Milliman argues that the following conclusion by the district court shows that the district court improperly assigned to him the burden of proving retaliatory eviction:

            B.  [Appellant] has failed to show that his eviction was motivated by retaliation for [his] good faith report to a governmental authority of [respondents’] violation of a health, safety or housing code, i.e. the failing septic system.


The district court, however, also concluded:

            C.  [Respondents have] a legitimate economic reason for electing not to replace the septic system servicing [appellant’s] mobile home; further, [respondents have] a legitimate economic reason for choosing [appellant’s] site as the location for the storm shelter.


            D.  [Respondents have] shown that [they have] specific plans to make an improvement to the park premises which will substantially benefit the health and safety of the residents, and which necessitates removal of the resident’s manufactured home from the park.  This specific plan is the construction of a storm shelter.


Reading the district court’s order as a whole, we conclude that the district court properly assigned to respondents the burden of proving that the notice to quit was not served for a retaliatory reason.  The court’s conclusions demonstrate that it concluded that respondents’ reason for evicting Milliman was that respondents decided to not replace the septic system, which had to be replaced to allow Milliman to stay, and instead decided to construct a storm shelter on lot 18.  This reason for the eviction is a substantial nonretaliatory reason.


“Eviction” is defined as “a summary court proceeding to remove a tenant or occupant from or otherwise recover possession of real property.”  Minn. Stat. § 504B.001, subd. 4 (2002).  Counterclaims and equitable defenses may be addressed in an eviction proceeding only if the eviction action presents the only forum for litigating these claims.  Fraser v. Fraser, 642 N.W.2d 34, 40-41 (Minn. App. 2002).

In his counterclaim, Milliman sought actual and punitive damages based on his claim that on September 2, 2002, respondents sprayed foam insulation into the septic system serving his lot, which sealed the discharge pipe and caused raw sewage to run under his home.  Milliman argues that when the district court indicated at the pretrial hearing that it would not entertain any of the claims he made, the court improperly denied him an opportunity to argue that the foam-insulation-spraying incident was part of a pattern of retaliatory conduct by respondents to force him to move out.  We disagree.

At the pretrial hearing, Milliman expressly stated that he had consulted an attorney about his options and that he would “proceed to trial on the one single defense of retaliatory eviction.”  Consequently, Milliman’s counterclaim was not before the court at trial.  And Milliman did not, at either the pretrial hearing or at trial, assert that the foam-insulation-spraying incident was relevant to his retaliatory-eviction defense.  Because Milliman failed to assert in the district court that the incident was relevant to his retaliatory-eviction defense, we will not consider whether the district court improperly denied him an opportunity to argue that the incident was part of a pattern of retaliatory conduct.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating reviewing court generally considers only those issues presented to and considered by district court); Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn. App. 1987) (“Pro se litigants are generally held to the same standards as attorneys.”).


            Milliman argues that the district court erred by limiting his cross-examination of Wagner regarding an unsigned affidavit, which was apparently filed in a lawsuit by Milliman against respondents seeking damages, a rent refund, and repair of the septic system.  Milliman contends that the affidavit contradicts Wagner’s trial testimony, and that he was denied the use of the affidavit to impeach Wagner. 

During cross-examination, Milliman showed Wagner an affidavit and asked whether Wagner had signed it.  Wagner answered that he had no idea.  Milliman then asked Wagner to read the affidavit, Wagner’s attorney objected on the grounds that the affidavit was irrelevant, and the district court sustained the objection.  Milliman made no further attempt to introduce the affidavit into evidence. 

Minn. R. Evid. 103(a)(2) provides that

[e]rror may not be predicated upon a ruling which * * * excludes evidence unless a substantial right of the party is affected, and * * * the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.


            Milliman did not make the substance of the affidavit known to the district court, and the substance of the affidavit was not apparent from the context of Milliman’s questions.  The context within which Milliman asked Wagner to read the affidavit revealed only that the affidavit was filed in a previous lawsuit and that there was a question whether Wagner signed the affidavit.

Even if there is an inconsistency between Wagner’s testimony and his affidavit, Milliman has not shown that the exclusion of the affidavit from evidence caused him prejudice.  Therefore, Milliman is not entitled to reversal on this ground.  See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (to obtain reversal of a judgment, a party must show error and resulting prejudice), review denied (Minn. June 28, 1993).


            Finally, Milliman contends that during Wagner’s testimony, Wagner improperly asked questions of other parties present in the courtroom.  First, during questioning about how far a storm shelter must be set back from a septic system, Wagner testified that it used to be 20 feet, but he thought it was currently ten feet.  Wagner then testified that Rushmeyer would know the correct answer, and, according to Milliman, Rushmeyer could be heard in the audience saying “ten.”  Second, when Wagner stated that Milliman had always paid his rent except during approximately the last three or four months, an unidentified person stated “three.”  Third, during cross-examination about fees paid for service of the notice of eviction, Wagner stated that he had not personally paid for service but then, pointing at his attorney, indicated that any charge would come through his attorney’s bill.

            The record does not indicate that Wagner deliberately violated appropriate courtroom decorum.  And even if Wagner acted improperly, these incidents did not cause prejudice to Milliman.  Therefore, the district court’s failure to restrain Wagner’s conduct is not a basis for reversal.  Bloom, 499 N.W.2d at 845.


*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.