This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1878

 

Margaret Stewart,

Appellant,

 

vs.

 

Lori Anderson,

Respondent.

 

Filed August 21, 2007

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 27-CV-HC-06-1916

 

Douglass E. Turner, Hanbery & Carney P.A., 33 South Sixth Street, Suite 4040, Minneapolis, MN 55402 (for appellant)

 

Imani Jaafar-Mohammad, Legal Aid Society of Minneapolis, 2929 Fourth Avenue South, Suite 201, Minneapolis, MN 55408 (for respondent)

 

††††††††††† Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D†† O P I N I O N

KALITOWSKI, Judge

††††††††††† Appellant Margaret Stewart challenges the district courtís reversal of the housing courtís decision granting a writ of recovery to appellant subject to respondent Lori Andersonís right to redeem, arguing that the district court erred by reversing the housing courtís judgment, relying on evidence that was not part of the record, and reversing the housing courtís evidentiary rulings. †We affirm.

D E CI S I O N

††††††††††† Appellant-landlord brought a combination eviction action and conciliation court matter in housing court and respondent-tenant answered alleging a habitability defense. At trial, appellant objected to the admission of respondentís photographic evidence because she did not receive it prior to the discovery deadline.† Respondent objected to appellantís evidence because it also did not comply with the discovery order. †The housing court allowed appellantís evidence, but rejected respondentís evidence because it did not comply with the discovery order.

††††††††††† At trial, respondent sought to establish a habitability defense based on an allegedly defective dryer and rodent infestation. †When respondent attempted to testify regarding the problems with the dryer, the housing court indicated to her that her testimony was not sufficient evidence and that expert testimony was needed to establish that the dryer was broken. †In response to respondentís introduction of a letter written by her to appellant stating that the dryer was broken and had damaged her comforters, the following exchange took place:

 

THE COURT:† Do you have any background or foundation that you know about dryers or what Ė do you know anything about dryers?† Do you have any training or experience in dryers?

 

[RESPONDENT]: †No, I do not. Iím not a dryer repairperson.

 

. . . .

 

THE COURT: †Okay, youíre not really qualified to testify about a dryer or whether a dryer is broke or not broke; is that true?

 

[RESPONDENT]: †I can state whether it dries or damages my clothing when I pull them out of the dryer, when I yank them out of the seam and theyíre stuck in there and I pull it out and thereís grease marks on it, I can tell that the dryer is causing this damage to my clothing and my bedding. It was not damaged when I put it in the dryer, it was damaged when I had to yank it and pull it out.

†††††††

The court engaged in similar questioning when respondent testified about rodents in her walls.† After the housing court inquired what respondent wanted from appellant, the following exchange occurred:

[RESPONDENT]: †Hire someone to remove any rodents or access that they may have to the walls that is probably causing the odor.

 

THE COURT: †But see, you provided absolutely no proof that thereís any rodents in this property other than you said it smells.

. . . .

 

[RESPONDENT]: †-- how do I prove that I hear them in the walls?

 

THE COURT: †You hire someone who is an expert in rodents to come out and do an inspection.† And these people are Ė theyíre experts.† Thatís all they do for a living.† They could probably figure it out in 30 minutes.

 

[RESPONDENT]: †Okay.

 

THE COURT: †But absent evidence to that effect, I donít know whether thereís rodents here or not.† Are you an expert in determining Ė are you an expert in pest control or rodents?† I donít know Ė whatís your occupation?† What do you do for a living?

 

[RESPONDENT]: †Iím an administrative assistant.

 

THE COURT: †Does that qualify you to make you a rodent expert?

 

[RESPONDENT]: †No, sir, it does not.

 

THE COURT: †Probably not, but you know what, there are plenty of people that are expert in that.††

 

The housing court found that respondent had failed to pay part of her rent, late fee, and security deposit, and awarded possession of the property to appellant, subject to respondentís right to redeem.

††††††††††† Respondent filed a notice to review the refereeís decision, and a hearing was granted in district court. †Respondent argued to the district court that the housing court applied discovery sanctions in a prejudicial manner by refusing to admit respondentís evidence because it was not provided to appellant prior to the discovery deadline, but admitting appellantís evidence even though it was not provided to respondent prior to the discovery deadline. †Respondent also argued to the district court that the housing court improperly required her to provide expert testimony.

††††††††††† Prior to the judge review, respondent obtained a report regarding rodents at the property. †At the judge review, respondentís counsel notified the district court that respondent had obtained a pest report, and over appellantís objection, the district court viewed the report, which indicated some rodent infestation.

††††††††††† The district court reversed the housing court, correctly finding that the housing court erred by (1) receiving appellantís late exhibits, but refusing to receive respondentís late exhibits; and (2) requiring expert testimony for respondentís lay testimony regarding her observations of sounds of rodents, foul smells, and grease stains on personal property removed from the dryer.

††††††††††† On appeal from an unlawful detainer action, we consider whether the evidence supports the findings and whether the findings sustain the conclusions. †Minneapolis Pub. Hous. Auth. v. Greene, 463 N.W.2d 558, 560 (Minn. App. 1990). †We will not set aside findings of fact unless we find them to be clearly erroneous. †Minn. R. Civ. P. 52.01.

††††††††††† Here, the district courtís findings of fact were not clearly erroneous and the evidence sustains the district courtís judgment. †Respondent testified that she heard rodents in the walls and sensed foul smells in the bedroom, that her personal property was damaged by grease leaking from the dryer, and that respondent made numerous requests to appellant that she stop entering respondentís property without proper notice. †This testimonial evidence sustains the district courtís conclusion that respondent proved by a preponderance of the evidence her habitability defense, and therefore defeated appellantís eviction action.

††††††††††† But appellant argues that the district court erred by improperly relying on the pest report, which was not a part of the record before the housing court, to reach this conclusion.† A district courtís evidentiary rulings will not be overturned absent a clear abuse of discretion. †State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).†

††††††††††† We agree with appellant that the district court should not have viewed the pest report because it was not a part of the record established at the housing court. †See Minn. R. Gen. Pract. 611 (ď[A] judgeís review of a decision recommended by the referee shall be based upon the record established before the referee.Ē). †But we will not reverse the district court if the error is harmless, and appellant bears the burden of demonstrating that the error is prejudicial.† Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993).

††††††††††† The district court did not recite or rely on the contents of the pest report in its findings of facts or conclusions of law.† Rather the district court relied on respondentís sworn eyewitness testimony to support its conclusion that respondent had proved her habitability defense. †On this record, we conclude that appellant has failed to prove that the district court committed prejudicial error.

††††††††††† Affirmed.†