This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1452

 

Charles R. Halverson,

Appellant,

 

vs.

 

Jessica Shepherd,

Respondent.

 

Filed June 2, 2004

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. AC 03-6908

 

Timothy R. Maher, Saliterman & Siefferman, P.C., Pillsbury Center, Suite 2000, 220 South Sixth Street, Minneapolis, MN† 55402 (for appellant)

 

Jessica Shepherd, 2601 Sunset Boulevard, Apt. 2A, Minneapolis, MN† 55416 (pro se respondent)

 

††††††††††† Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

Appellant landlord challenges the district courtís damage award in this landlord-tenant dispute, arguing that the damage award is not supported by the courtís findings of fact or by the record.† Because we conclude that the findings of fact and the record support the district courtís damages award, we affirm.

FACTS

In June 2002, appellant Charles Halverson and respondent Jessica Shepherd entered a lease agreement under which Shepherd was to rent an apartment from Halverson for $950 per month from July 1, 2002, through June 30, 2003.† The lease provides that Shepherd will be responsible for all losses incurred by Halverson if Shepherd abandons the apartment before the end of the lease term and provides that Shepherd is responsible for reasonable attorney fees and court costs incurred by Halverson because of a breach of the lease by Shepherd.†† The lease also provides for termination by Shepherd at any time on two monthsí written notice and payment of a termination fee of $950.

††††††††††† On or about January 5, 2003, Halverson entered the apartment at Shepherdís request to make a repair and concluded that Shepherd was in violation of the lease because she had painted the walls, removed a shower door, and was keeping a pet cat in the apartment.† Halverson told Shepherd that he would conduct an inspection on January 15 to confirm that the violations had been corrected.† On January 15, he found that not all of the violations had been corrected.

††††††††††† On January 20, Halverson notified Shepherd that she was still in violation of the lease and told her that if she did not correct the violations within a week, he would begin eviction proceedings.† On January 23, Shepherd offered to vacate the apartment on February 28.† In response, Halverson offered to terminate the lease on March 31 on the conditions that (1) Shepherd pay the February rent on or before February 1, (2) Shepherd pay the March rent on or before February 10, (3) Shepherd vacate the premises on or before March 31, and (4) Shepherd comply with all terms of the lease during the remainder of her tenancy.†

††††††††††† On February 6, Shepherd told Halverson that she intended to vacate the apartment on February 28.† She did not pay the March rent by February 10, as Halversonís proposal required.† On February 26, Halverson filed a $5,900 claim against Shepherd in conciliation court for violation of the lease.† Hearing was set for April 11, 2003.

Shepherd vacated the apartment on February 28.† On March 5, Halverson told Shepherd by letter that he had found additional lease violations when he inspected the apartment after she moved out.† Halverson attempted but failed to find another tenant for the apartment before the end of the lease term.

Halverson and Shepherd appeared at the conciliation court hearing on April 11, and the conciliation court referee awarded Halverson no damages.† Halverson removed the case to the district court, and trial was set for June 23.† Shepherd failed to appear at the bench trial, and the matter proceeded by default.† Halverson testified to and submitted 27 exhibits purportedly showing $7,434.05 in damages incurred because of alleged lease violations by Shepherd.† On July 30, the district court issued an order determining that ďthe reasonable damages caused by [Shepherdís] breach of the rental agreementĒ were $1,900 for unpaid rent,† $140 for utilities, $57.44 for repairs, and $750 for attorney fees.† Halverson appeals.


D E C I S I O N

Halverson filed this appeal on September 2, 2003.† The case file forwarded to this court by the district court contained none of the trial exhibits.† At oral argument on March 4, 2004, Halverson submitted copies of the exhibits to this panel.†† Minnesota Rule of Civil Appellate Procedure 111.01 provides that a party on appeal who is in possession of trial exhibits must submit them to the clerk of appellate courts within ten days after the due date for the filing of the respondentís brief.† Here, Halversonís brief was served by mail on October 31, 2003, so Shepherdís brief was due on December 3, 2003.† See Minn. R. Civ. App. P. 131.01, subd. 2 (requiring respondent to serve and file a brief and appendix within 30 days after service of appellantís brief); Minn. R. Civ. App. P. 125.03 (providing that when service is by mail, three days shall be added to prescribed period).†† Halverson, therefore, submitted the exhibits to this court more than two and one-half months after the deadline specified in Minn. R. Civ. App. P. 111.01.† But he corrected the procedural deficiency before the case was submitted for consideration, and Shepherd, who did not participate in the appeal, was not prejudiced by the late submission of the exhibits.† Therefore, we deem the appeal and exhibits properly before us.† See Boom v. Boom, 361 N.W.2d 34, 36 (Minn. 1985) (finding that dismissal of appeal for failure to comply with rules of civil appellate procedure was inappropriate where procedural deficiency does not affect jurisdiction of appellate court, other party is not prejudiced, and appeal is not delayed).†

An appellate court reviews a district courtís award of damages under an abuse-of-discretion standard.† Robert W. Carlstrom Co., Inc. v. German Evangelical Lutheran St. Paulís Congregation of Unaltered Augsburg Confession at Jordan, 662 N.W.2d 168, 173 (Minn. App. 2003).† The district courtís findings on damages will not be reversed unless clearly erroneous.† Id.When reviewing a damage award, we consider the evidence in the light most favorable to the judgment.† Imperial Developers, Inc. v. Seaboard Sur. Co., 518 N.W.2d 623, 626 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).† We will set aside a damage award only if it is ďmanifestly and palpably contrary to the evidence.Ē† Id.Where, as here, there was no motion for a new trial and no substantive issues of law raised at trial are challenged on appeal, we review only whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.† Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 308-10 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).††††††

††††††††††† Halverson argues first that because the record does not reflect that Shepherd provided two monthsí notice before moving out or that she tendered the early-termination fee at the time of notice, the district court erred by using the early-termination provision of the lease as a basis for determining unpaid rent.† He contends that the district court instead should have based damages on the abandonment provision of the lease, which would make Shepherd responsible for all losses suffered by Halverson because Shepherd vacated the apartment before the end of the lease term.††††

The district court concluded that because Shepherd had given written notice of her desire to terminate her tenancy early and Halverson agreed that she should do so, the early-termination provision was an appropriate basis for determining damages for unpaid rent.† The $1,900 award represents the unpaid rent for March 2003 and the early-termination fee.† We conclude that the record supports the district courtís findings and that the findings support the courtís determination of damages for unpaid rent.† The district court did not, therefore, abuse its discretion by awarding Halverson $1,900 for unpaid rent.

Halverson next argues that the record does not support the courtís denial of damages for cleaning the apartment after Shepherd left.†† Halverson claimed at trial that he spent seven and one-half hours cleaning the apartment and that he is entitled to $90 in damages for that work.† Nothing in the record shows the condition of the apartment at the beginning of the lease term, and the only evidence that the apartment required cleaning to restore it to its previous condition is Halversonís testimony and the March 5 letter from Halverson to Shepherd itemizing alleged lease violations discovered after Shepherd left.† The district court found that Shepherd ďleft the apartment in the same condition as when she moved inĒ and declined to assess cleaning costs.† We defer to the fact-finderís ability to weigh evidence and make credibility determinations.† Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999); Minn. R. Civ. P. 52.01.† We conclude that the district court did not abuse its discretion by granting no damage award for cleaning.†

††††††††††† Halverson argues that the record does not support the district courtís damage award for the cost of utilities for the apartment after Shepherd vacated it.† Halverson submitted bills showing that the cost of providing gas and electricity for the apartment from February 28 through June 16 was $271.03, and he estimated that it would cost another $30 to provide the utilities until the lease ended on June 30.† The district court awarded $140 in damages for unpaid utilities.† The district court concluded that, under the early-termination provision of the lease, Shepherd would have been obligated to vacate the apartment on March 31.† The utility bill for February 28 through April 4 is $181.27.† We conclude that the district court attempted to make an equitable allocation of utility charges and that it did not abuse its discretion by awarding $140 in damages for unpaid utilities.

††††††† ††† Halverson also contends that the record does not support the district courtís award of $57.44 in damages for repairing the apartment after Shepherd vacated it.† He contends that the record supports an award of an additional $627 because he submitted evidence showing that repainting the apartment and replacing the locks would cost that much.† But the record shows that at the time of trial Halverson had not made those repairs and had only obtained estimates of repair costs.† We cannot say that the district court abused its discretion by declining to award damages for repairs that, while claimed to be necessary, had not been undertaken in more than three and one-half months after Shepherd vacated the apartment.

††††††††††† Finally, Halverson argues that the record does not support the district courtís award of $750 in attorney fees when he claimed more than $2,000 in legal costs in pursuing his rights under the lease.† Attorney fees are recoverable if authorized by statute or contract, and we will not disturb a district courtís award of attorney fees absent an abuse of discretion.† City of Savage v. Formanek, 459 N.W.2d 173, 177 (Minn. App. 1990), review denied (Minn. Oct. 25, 1990).† Here, the lease agreement provides that Halverson is entitled to reasonable attorney fees and court costs incurred as a result of a breach of the lease by Shepherd.† This case did not involve complex legal issues, and Shepherd did not defend the case after her appearance in conciliation court.† The trial lasted less than half a day, only Halverson testified, and the damage award was $2,847.44, offset by a $950 security deposit and $19 interest on the security deposit.† We cannot say that the district court abused its discretion by awarding attorney fees of $750.

††††††††††† The net damage award of $1,878.44 was not an abuse of the district courtís discretion.

Affirmed.