This opinion will be unpublished and

may not be cited except as provided by

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






Elizabeth F. Johnson,



Mark Kiihbauch,





Harry P. Schoen,



Filed March 30, 2004


Gordon W. Shumaker, Judge


Dakota County District Court

File No. CX-03-6965




Elizabeth F. Johnson, 208 4th Street East, No. 103, Hastings, MN 55033 (pro se respondent)


Mark Kiihbauch, 4959 180th Street East, Hastings, MN 55033 (pro se respondent)


Stacy Kim Morgan, 600 Inwood Avenue North, No. 200, Oakdale, MN 55128 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge, and Minge, Judge.


U N P U B L I S H E D   O P I N I O N



            In this action for the return of a residential rental security deposit, appellant contends that the district court committed clear error in its findings regarding statutory notices and erred in denying appellant’s motions to dismiss and to deem requests for admissions admitted.  Because we find no reversible error in any of the court’s determinations or rulings, we affirm.


            This case involves a dispute over a residential rental security deposit of $700.  After trial upon removal of the matter from the conciliation court, the district court found that respondent Elizabeth F. Johnson rented an apartment unit as a month-to-month tenant from the H. P. Schoen Trust and that she vacated the premises without giving the landlord advance notice of her intent to do so.

            The district court also found that Johnson had paid a security deposit of $700 at the outset of her tenancy and that the landlord withheld the deposit but failed to give Johnson notice of the reason for withholding the deposit.  The court concluded that the landlord had wrongfully withheld the damage deposit and ordered judgment in favor of Johnson in the sum of $700 and prejudgment interest of $2.37.

            The court also denied the appellant’s motion to dismiss the case after Johnson presented her evidence at trial and denied the appellant’s motion to treat certain requests for admission as admitted.

            Appellant challenges the court’s denial of his motions; the finding that the landlord failed to give notice of the reason for withholding the damage deposit, contending that the “trial was silent on the matter of written notice and the trial court interpreted the silence to mean that Appellant did not provide the Respondent written notice of the return of the damage deposit”; and the conclusion that the landlord failed to return the damage deposit without making a predicate finding that Johnson provided the landlord with notice of an address to which the deposit or the notice as to why the deposit was being withheld could be sent.


            An appellate court will disturb the district court’s findings of fact only if they are clearly erroneous.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999).

            The only issue the district court decided was that of entitlement to Johnson’s rental security deposit.  Because the court’s findings and conclusions are confined to that issue and because that is the only issue challenged on appeal, we do not address broader questions regarding rent, utilities costs, or damages to the premises.

            A tenancy at will, such as that between Johnson and her landlord, “may be terminated by either party giving notice in writing.  The time of the notice must be at least as long as the interval between the time rent is due or three months, whichever is less.”  Minn. Stat. § 504B.135(a) (2002).  Under this statute, Johnson was obligated to give a one-month (not 30 days) advance notice to effectively terminate her tenancy.  The record clearly shows that she did not do this.

            Because Johnson did not effectively terminate her tenancy, her rent obligation continued.  The law provides that a security deposit paid by a tenant to a landlord may be used to remedy defaults in the rent.  Minn. Stat. § 504B.178, subd. 3(b)(1) (2002).  To effectuate this remedy, the landlord must, “within three weeks after the termination of the tenancy . . . and after receipt of the tenant’s mailing address or delivery instructions return the deposit . . . or furnish to the tenant a written statement showing the specific reason for the withholding of the deposit or any portion thereof.”  Minn. Stat. § 504B.178, subd. 3(a) (2002).   If the landlord fails to return the deposit or to provide the requisite written statement, the landlord forfeits the right to retain the security deposit and becomes liable for additional damages.  Minn. Stat. § 504B.178, subd. 4 (2002).

            The district court held that there was “no evidence that the landlord sent written notice to [respondent] why the damage deposit was being withheld.”  Appellant does not claim that he provided the requisite statement but argues only that no evidence on the issue was presented at trial.  Because the statute allows a landlord to retain a security deposit only if the landlord notifies the tenant of the reason for withholding the deposit, the burden is clearly on the landlord to show that the required statement was provided.  By alleging that the record is silent on this issue, appellant demonstrates his failure to carry his burden, and the district court did not err in concluding that appellant failed to give Johnson the required notice of the reason for withholding the $700 deposit.

            The statute also imposes upon a tenant who seeks return of a security deposit a duty to provide a mailing address or delivery instructions for return of the deposit.  Appellant argues that there “was no evidence that a forwarding address was ever supplied or delivery instructions given by Respondent to Appellant or the on-site manager.”

            The evidence shows that appellant was “supplied” with Johnson’s mailing address at least by mid-January 2003 when he received Johnson’s conciliation court claim.  Appellant knew of another address by March 7, 2003, when Johnson served him with a demand for removal of the action to the district court.  And, according to the affidavit of service in evidence, appellant mailed requests for admissions to Johnson on May 8, 2003.  Thus, although the district court did not make an express finding that appellant was supplied with Johnson’s address, the record amply demonstrates that appellant knew her address and failed to send to Johnson a statement as to the reason for withholding her security deposit.  The district court did not err in concluding that appellant forfeited his right to retain Johnson’s deposit by his failure to send to her the statutorily mandated notice.

            Because the evidence as detailed above was sufficient to support the court’s denial of appellant’s motion to dismiss Johnson’s claim, the court did not err in that ruling.

            The court also denied appellant’s motion to deem certain requests for admissions to be admitted.  Minn. R. Civ. P. 36.01 provides that a matter in a request for admission is deemed admitted “unless within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed” either answers or objects to the requests.  The 1975 Advisory Committee Note to Minn. R. Civ. P. 36.01 makes it clear that “[a] failure to respond by answer or objection within 30 days after service of the request constitutes an admission.”  According to an affidavit of service in the record, appellant’s attorney served requests for admissions on Johnson by mail on March 21, 2003.  Johnson concedes that she did not respond to the requests, saying that she decided simply to address the matters raised in the request at trial.

            The district court gave no basis for refusing to treat the requests as admitted, as the rule requires.  And even though the court can order that more than 30 days be allowed for responses, the court here did not make such an order.  Thus, the matters in appellant’s requests are deemed admitted.  Nevertheless, even given all of Johnson’s admissions, the evidence supports the conclusion that appellant failed to satisfy the statutory mandate that he provide Johnson with the reason for withholding the security deposit.  Without proof of such a statement, appellant cannot prevail in his effort to retain Johnson’s security deposit.

            Finally, we question whether appellant is the real party in interest on his counterclaim in this action.  Minn. R. Civ. P. 17.01 provides that “[e]very action shall be prosecuted in the name of the real party in interest.”  This includes the trustee of a trust.  Id.  The court determined that the premises in question are owned by the H. P. Schoen Trust, but nothing in the record shows that appellant is the trustee.  We further question whether Mark Kiihbauch is a real party in interest on the claim for return of the damage deposit.  Although ultimately the court did not treat Kiihbauch as such, there is a procedural risk in allowing persons who do not satisfy the real-party-in-interest requirements to prosecute claims, including counterclaims, in their own names.