Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Penn Oak Apartments,
Filed August 11, 1998
Hennepin County District Court
File No. 1971208534
Leon Williams, P.O. Box 11851, Minneapolis, MN 55411 (appellant pro se)
Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, Klaphake, Judge.
Leon Williams appeals pro se from a judgment for restitution of premises in this unlawful detainer action, which alleges nonpayment of rent in December 1997 and nonpayment of accumulated past due rents and late fees for months prior to August 1997. We affirm for the following reasons: (1) this action is not barred by res judicata because a prior action involved nonpayment of rent for a different time period; (2) the trial court properly concluded that respondent Penn Oaks Apartments (Penn Oaks) did not waive its right to bring this unlawful detainer action by accepting rent payments from him for months prior to December 1997; and (3) Williams presented no evidence to support his claim of retaliatory eviction.
In the prior action, Penn Oaks alleged nonpayment of rent and late fees in the amount of $925 for part of August and all of September and October 1997. In denying possession to Penn Oaks, the trial court found that because Penn Oaks had failed to notify Williams of its existing accounting practice of applying any payments received to past due amounts, the payments Williams made in August, September, and October covered the rents for those months. Thus, the prior decision is only res judicata as to any unlawful detainer action based on nonpayment of rents due during the August-October 1997 period; it does not preclude this action for nonpayment of rent in December 1997.
Williams also argues that Penn Oaks waived its rights under Minn. Stat. § 504.02, subd. 1(c) (1996), which requires a written non-waiver statement when a landlord attempts to evict a tenant in the same month for which partial payments are accepted. Because Penn Oaks never accepted a tender of rent for December, due to Williams's failure to satisfy first his past due amounts for the months prior to August, section 504.02 does not apply.
Williams further argues that Penn Oaks' November 17, 1997 written notice regarding its practice of applying any payments first to past due amounts was ineffective because the terms of an oral lease cannot be amended except on 30 days' notice. See Minn. Stat. § 504.06 (1996); Oesterreicher v. Robertson, 187 Minn. 497, 501, 245, N.W. 825, 826 (1932) (landlord or tenant wishing to terminate month-to-month tenancy must give month's notice of such intent). The trial court properly reasoned that the notice was effective when given because it merely informed Williams of a standard accounting practice and did not constitute a change in the terms of his oral lease. In addition, Williams received actual notice of Penn Oaks' accounting practice as early as October 14, 1997, when he was served with the first unlawful detainer complaint alleging nonpayment of rent for August through October; because Williams made payments during these months, he was put on notice that these payments were being credited to his past due amounts.
The judgment of restitution is affirmed.