may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
York Apartments, a limited
partnership, et al.,
Filed October 21, 1997
Wilkin County District Court
File No. C396246
Adolph Joseph Jelinek, P.O. Box 662, Wahpeton, North Dakota 58074 (Pro Se Appellant)
Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.
Appellant Adolph Joseph Jelinek challenges numerous procedural and substantive aspects of the district court's judgment in unlawful detainer against him. We affirm.
Section 28 of the lease states that termination or eviction may be based on "Material Noncompliance with the Lease," which is defined as:
(a) one or more substantial violations of the Lease; or (b) repeated minor violations of the Lease which disrupts the livability of the project by adversely affecting the health or safety of any person, or the right of any Tenant to the quiet enjoyment of the leased premises and related project or have an adverse financial effect on the project. Non-payment * * * of * * * utilities * * * constitutes substantial violation[.]
Section 28 goes on to dictate the procedures for termination, as follows [all emphasis in original]:
A. If a Material Violation Occurs, the Management will issue to the Tenant a Notice of Lease Violation. * * * The Notice must:
1. Refer to relevant provisions in the Lease.
2. State the violations with enough information describing the nature and frequency of the problem to enable the Tenant to understand and correct the problem. * * *
* * * *
5. Advise the Tenant that if he or she has not corrected the stated violation by the date specified, the Landlord may seek to terminate the Lease by bringing forth a judicial action, at which time the Tenant may present a defense.
* * * *
B. Notice of Termination:
1. Upon failure by the Tenant to meet the condition(s) or correct the violation(s) stated in the Notice of Lease Violation by the date specified, the Tenant will be notified that the occupancy is terminated and that eviction is being sought through the appropriate judicial process according to State or local laws.
* * * *
3. The notice must state the reason and basis for the termination of occupancy (i.e., "Material" or "Other Good Cause" Violation, or both).
In June 1996, the company providing Jelinek's electricity claimed that his monthly payment had been $5 short. Jelinek testified at trial that he had paid in full and that, because this was not the first time the utility company had attempted to overcharge him, he elected to do without electricity rather than settle accounts with an entity he felt was conspiring or discriminating against him. In order to keep his refrigerator running, however, Jelinek ran an extension cord to an outlet in the hallway; from July 1996 until trial, Jelinek added $2 to his monthly rent to represent his estimate of the proportion of his share of his previous electric costs (the majority of which had been paid by the federal Section 8 program) devoted to the refrigerator. On at least one occasion, Jelinek's use of the building's electricity interfered with the security lights and caused a circuit-breaker to burn out.
On July 12, 1996, Linda Roper of NETA Property Management sent a letter to Jelinek, which read in pertinent part:
It has been reported to the office that your electricity has been disconnected and that you are running electrical cords in the hall. You must pay this bill immediately and unplug the cords in the hall. This is a safety hazard for the tenants and it is your responsibility, not management's, to provide electricity to your unit.
You will not be allowed to transfer until you take care of this matter.
Roper again wrote to Jelinek on August 5, 1996, stating in pertinent part:
RE: RUNNING ELECTRICAL CORDS IN HALL - SECOND AND FINAL NOTICE
On July 12, 1996, I wrote you a letter requesting that you discontinue plugging into the electrical outlets in and [sic] the hall. You were also reminded that the electricity in the unit is your responsibility and you should reconnect your electricity.
As of this date, neither has been done. YOU HAVE UNTIL AUGUST 9, 1996, TO HAVE THIS ACCOMPLISHED OR OTHER ACTION WILL BE TAKEN.
When Jelinek did not respond, Roper sent a third letter on August 22, 1996, which read in relevant part as follows:
RE: NON-RENEWAL OF LEASE
This letter is to inform you that we will not be renewing your lease. This means that you are to be out of the unit on September 30, 1996. Your tenancy termination is based on your continuous violation of the terms of the lease. We have repeatedly contacted you regarding plugging electrical cords in the hall to provide electricity in your unit. Since no satisfactory resolution has occurred to date, we are taking the above action.
Jelinek never directly contacted Roper regarding the eviction, but sent several letters to NETA in September and October 1996 requesting copies of all documents he had signed. Jelinek continued to send NETA money orders for his rent with $2 extra for electricity, which NETA held, but did not deposit. In November 1996, resident manager Melissa Bakken gave Jelinek permission to run a second cord into the hall to power an electric heater.
On December 23, 1996, Jelinek was served with an Eviction Summons in Unlawful Detainer by a deputy sheriff. Trial was originally scheduled for December 31, but Jelinek requested by telephone, and received, a continuance until January 3, 1997. The trial court inferred from this request that Jelinek had been properly served, although the Certificate of Service was not filed until January 3 for reasons not clear from the record.
At the start of trial, Jelinek refused to sit at the counsel table and, appearing pro se, apparently conducted most of his trial from the public section of the courtroom. The trial lasted for approximately six hours, mostly consisting of debate between the court and Jelinek on such issues as the proper scope of cross-examination and proper introduction of exhibits. Jelinek raised certain procedural issues repeatedly and frequently argued with the court's sustaining the plaintiff's objections to the relevance of his questioning. After lengthy colloquies, the court cut off Jelinek's cross-examination of both the plaintiff's witnesses. The court also ordered that Jelinek's testimony, which began shortly after 3:30 p.m., be concluded by 5:00 p.m. When, shortly after 5:00, Jelinek again raised his argument that he had been wrongly denied discovery and a jury trial, the court ordered him off the stand.
The court ruled in NETA's favor from the bench. Jelinek appealed and moved for a stay of the eviction. By order dated April 15, 1997, this court denied Jelinek's motion. At this point, the city of Breckenridge was flooded and Jelinek was in Fargo, North Dakota, following release from an involuntary commitment to the Minnesota state mental hospital in Fergus Falls. Jelinek returned to his apartment on April 29 to find a notice taped to the door. Shortly afterward, the managers changed the lock on Jelinek's door; the personal property Jelinek had left in the apartment remains in "on-site storage." We affirm the judgment of the district court.
Moreover, we may not consider several of the issues Jelinek raises on appeal because he failed to raise them at the district court level. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (appellate court may not consider matters not raised and decided below). Jelinek's pro se status does not exempt him from this rule. See Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987) (pro se litigants generally held to same standards as attorneys). Although the district court cut off Jelinek's testimony, Jelinek was at that point repeating arguments he had made earlier. Trial courts have broad discretion in dealing with disruptive parties, and placement of time limits on testimony is reviewed under an abuse of discretion standard. State v. Richards, 495 N.W.2d 187, 197 (Minn. 1992). The district court did not abuse its discretion in handling Jelinek's courtroom behavior. We therefore limit our discussion to substantial issues properly raised below.
I. Procedural issues
A. Typographical errors in the complaint and late filing of certificate of service
The Minnesota Rules of Civil Procedure "shall be construed to secure the just, speedy, and inexpensive determination of every action." Minn. R. Civ. P. 1. The errors in the complaint did not prevent Jelinek from appearing at the appointed time, and his December 23 request for a continuance demonstrated that Jelinek was in fact served. In support of his claim, Jelinek quotes language from the General Rules of Practice that is discretionary by its terms. The district court did not abuse its discretion in ignoring these technical defects given that the purposes of the summons and complaint were fulfilled.
B. Denial of continuance, discovery, and jury trial
Jelinek did not raise these issues until after trial had begun and he had commenced cross-examination of the first witness. Issues of continuance and discovery are reviewed under an abuse of discretion standard. See Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990) (discovery); Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977) (continuance). Given that Jelinek had already received one continuance, the court did not abuse its discretion in denying these motions despite Jelinek's pro se status. See Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn. App. 1983) (while courts provide some latitude to pro se litigants, bending of all rules and requirements or disruption of trial schedules is not permitted).
Either party to an unlawful detainer action may demand a jury trial under Minn. Stat. § 566.07 (1996). However, the failure to make the demand in a timely fashion is a waiver of the right. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 728 (Minn. 1990). A demand first made on the day of trial is generally not timely. Id.
C. Judge allegedly acting as witness
Jelinek claims that the court acted as a witness by stating that $2 per month is insufficient to run a refrigerator. Under Minn. R. Evid. 605, no objection need be made at trial to preserve the point. However, the court has discretion under Minn. R. Evid. 201 to take judicial notice of facts that are generally known or readily capable of accurate determination. Although the court did not explicitly identify its statement as a taking of judicial notice, the fact asserted meets the standard.
D. Handling of dispute between Jelinek and power company
Jelinek first attempted to offer into evidence a money order receipt that allegedly proved he had fully paid his electric bill in the course of cross-examining a witness who could not have provided a foundation, and the court properly refused to receive it. Jelinek did not attempt to present any exhibits during his own testimony. The court made no findings on whether Jelinek's bill had in fact been $5 short, so failure to admit the exhibit had no bearing on the decision. The court's comments, to the effect that Jelinek should have resolved his differences with the power company rather than engaging in self-help at NETA's expense, concerned only conduct that Jelinek had admitted and were not inappropriate.
II. Substantive findings
A. Jelinek's violation of the lease
Jelinek argues that the plaintiffs failed to meet their burden of proving that Jelinek's conduct constituted a health or safety hazard, which by the terms of Section 28 of the lease would be necessary to evict for "repeated minor violations." The court, however, also noted that failure to pay utility bills constitutes a "substantial violation" under the same paragraph, and this would provide independent grounds for eviction.
The court held that Jelinek's use of the building's electricity was a safety hazard because of its effects on the security lights and circuit-breakers. The record contains sufficient evidence to support the district court's determination that Jelinek violated both provisions of the lease.
B. NETA's notice to Jelinek
A lease is a contract and is construed according to ordinary contract rules of interpretation. Amoco Oil Co. v. Jones, 467 N.W.2d 357, 360 (Minn. App. 1991). In general, a party to a contract must perform substantially according to its terms. See, e.g., Brown v. Hall, 121 Minn. 61, 65, 140 N.W. 128, 129 (1913) (upholding finding of substantial performance). "[S]ubstantial performance means performance of all the essentials necessary to the full accomplishment of the purposes" of the contract. Ylijarvi v. Brockphaler, 213 Minn. 385, 390, 7 N.W.2d 314, 318 (1942).
The district court found that NETA had complied with the terms of the lease in evicting Jelinek. Paragraph 28A(1) of the lease states that as a prerequisite to eviction, a tenant who materially violates the lease must be issued a Notice of Lease Violation, which must "[r]efer to relevant provisions in the Lease." Jelinek argues that neither the July 12, 1996, letter nor the August 5, 1996, letter from Roper stated which portion of the lease Jelinek violated. We conclude that NETA fulfilled the purpose of this requirement by unequivocally informing Jelinek of the conduct it considered unacceptable, which violated more than one provision of the lease. The purpose of the requirement that the tenant be informed of the lease provision he violated was completely fulfilled here.
[ ]1 Jelinek had requested to transfer to a vacant unit in the same building. [Footnote added.]
[ ]2 Under the lease, NETA was responsible for providing heat to Jelinek's unit. The heat, however, could not function without the electric thermostat.
[ ]3 Whether or not Jelinek paid his electric bill for June in full, as he testified, he admittedly did not pay it for the following months.
The first paragraph of section 28 of the lease also states that repeated minor violations can be grounds for eviction if they "have an adverse financial effect on the project." While Jelinek's use of building electricity appears to fall within this clause, the trial court did not refer to it.