may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Hi Vue Park,
Ronald Schneider, et al.,
Filed July 27, 1999
Stearns County District Court
File No. C4984267
Gerald W. Von Korff, Rinke-Noonan, P.O. Box 1497, St. Cloud, MN 56302 (for respondent)
Mark S. Mathison, Jennifer J. Kehoe, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for appellants)
Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schultz, Judge.
Appellants, in this unlawful detainer action, challenge a judgment and writ of restitution based on the district court's ruling (1) that the lease-termination notice was effective and (2) that respondent, by accepting appellants' monthly rent payments, did not waive its right to evict appellants.
During the summer of 1998, respondent received complaints from other park residents about Ronald's conduct. One Hi Vue Park resident petitioned for (and later received) a restraining order against Ronald because of his threatening behavior. Another resident complained that Ronald had made harassing and threatening comments to him.
On August 19, 1998, respondent mailed a letter to appellants, warning them that, if any further complaints were received, respondent would immediately start eviction procedures. Two days later, Ronald went to respondent's office and threatened Gary Vitale, the park manager, with bodily harm.
On September 29, 1998, respondent notified appellants that their lease was terminated effective October 31. The letter listed, as reason for termination, three incidents in which Ronald had engaged in threatening behavior toward other residents. Respondent accepted appellants' September and October rent payments. Appellants overpaid their October rent by five dollars. Respondent returned the excess payment and stated that no further rental payments would be accepted. Appellants, however, slipped their November rent payment check under respondent's office door after the office had been closed.
Appellants refused to vacate the premises, and, on November 6, 1998, respondent initiated this unlawful detainer action. By letter dated November 10, respondent advised appellants that their November rent payment would not be accepted and would be returned to them at the November 20 hearing.
By order dated January 4, 1999, the district court concluded that Ronald's actions substantially annoyed other residents, violated the lease, and justified eviction. On the same date, the court entered judgment and a writ of restitution, ordering appellants to surrender possession of their Hi Vue Park lot. This appeal followed.
Minn. Stat. § 327C (1998) governs lot rentals in manufactured home parks. Minn. Stat. § 327C.09 provides the bases under which a park owner may evict a resident, including:
Subd. 5. Endangerment; substantial annoyance. The resident acts in the park in a manner which endangers other residents or park personnel, causes substantial damage to the park premises or substantially annoys other residents, and has received 30 days' written notice to vacate, except the park owner may require the resident to vacate immediately if the resident violates this subdivision a second or subsequent time after receipt of the notice. To be effective, the notice must specify the time, date, and nature of the alleged annoyance, damage, or endangerment. A park owner seeking to evict pursuant to this subdivision need not produce evidence of a criminal conviction, even if the alleged misconduct constitutes a criminal offense.
Subd. 6. Repeated serious violations. The resident has repeatedly committed serious violations of the rental agreement or provisions of a local ordinance or state law or state rule relating to manufactured homes, and the park owner has given the resident written notice of the violations and has given the resident a written warning that any future serious violation will be treated as cause for eviction as provided in this subdivision, and within six months of receiving the warning the resident commits a serious violation of any park rule or any provision of a local ordinance or state law or state rule relating to manufactured homes.
Minn. Stat. § 327C.09, subds. 5, 6 (1998).
Appellants argue that, under Minn. Stat. § 327C.09, subd. 5, respondent's September 29, 1998, lease-termination notice was not effective because it did not include the times for the alleged annoyances or endangerment.
Respondent's September 29 notice lists three incidents in which Ronald harassed and threatened other residents. One of the incidents involved a restraining order obtained by another resident against Ronald. For this incident, respondent references the district court's findings and the court record and file number. Under these circumstances, respondent's reference to, and identification of, a court proceeding incorporates sufficient information about the incident to meet the statute's notice requirement.
B. Minn. Stat. § 327C.09, subd. 6
Appellants also argue that notice was ineffective under Minn. Stat. § 327C.09, subd. 6, because (1) the August 19, 1998, warning letter did not reference the statute, and (2) there was no subsequent violation.
Minn. Stat. § 327C.09, subd. 6, requires that the resident be given "written notice of the violations" and "a written warning that any future serious violation will be treated as cause for eviction as provided in this subdivision." Appellants contend that the phrase "as provided in this subdivision," requires that the termination notice reference subdivision 6 or track the statute's language.
Although the August 19 warning letter does not follow the exact language of the statute, it does meet the statute's written notice of violation and warning requirements. The letter provides appellants with a description of the conduct that was in violation of their lease agreement and warns that the receipt of further complaints would lead to eviction. Appellants had sufficient information to know what conduct was unacceptable and what needed to be done to avoid eviction. Cf. Rainbow Terrace, Inc. v. Hutchens, 557 N.W.2d 618, 620 (Minn. App. 1997) (termination notice that did not state reason for termination was defective because residents not given opportunity to remedy violation).
Appellants also argue that the September 29 notice was ineffective because there was no lease violation after the August 19 warning letter. The district court identified the subsequent violation as the acts committed by Ronald on August 21, 1998.
Under subdivision 6, a resident can be evicted if the resident commits a serious violation of the rental agreement. To have violated their lease agreement, appellants must have done something "which seriously annoys or endangers the health or safety of other park residents." Appellants do not deny that Ronald threatened the park manager on August 21. Instead they argue that because Vitale was park personnel and not a park resident, there was no violation of the lease.
The violation is not limited, however, to just the lease agreement. Under the statute, eviction is also justified if the resident, after notice and warning, violates "any park rule or any provision of a local ordinance or state law." Minn. Stat. § 327C.09, subd. 6. Here, park manger Vitale testified that Ronald was in "a rage" during their August 21 meeting and that he thought Ronald was going to harm him. According to Vitale's testimony, Ronald reached over Vitale's desk, pointed his finger at him, and threatened to beat him. By threatening Vitale with bodily harm, Ronald acted in a manner that endangered park personnel, a violation of Minn. Stat. § 327C.09, subd. 5. Cf. Lea v. Pieper, 345 N.W.2d 267, 271 (Minn. App. 1984) (resident violates Minn. Stat. § 327C.09, subd. 5, if resident substantially annoys other resident after receiving 30-day notice to vacate). The district court did not err in ruling that Ronald's conduct on August 21 satisfied the subsequent violation requirement. Appellants received effective lease-termination notice under subdivisions 5 and 6.
Appellants argue that the district court erred in concluding that respondent did not waive its right to evict when it accepted appellants' September and October rent payments.
The general rule is that a landlord, by accepting rent, waives its right to rely on any previous breaches, if known, as the basis for an unlawful detainer action. Kenny v. Seu Si Lun, 101 Minn. 253, 257, 112 N.W. 220, 221 (1907); Priordale Mall Investors v. Farrington, 411 N.W.2d 582, 584 (Minn. App. 1987). The waiver, however, is not automatic. Rather, "the landlord's conduct after the notice of termination of tenancy has been given must manifest some intent to waive the notice." Minneapolis Community Dev. Agency v. Powell, 352 N.W.2d 532, 534 (Minn. App. 1984). "The acceptance of rent alone does not necessarily manifest any intent to waive the notice of termination." Id.
As to the September rent payment, appellants argue that Powell is not applicable because respondent had not yet given notice when it accepted the September rent. According to appellants, a landlord's intent may be relevant once notice is given but is not material to the issue of waiver when no notice of termination has been given. Appellants provide no authority that supports this argument.
The supreme court has defined waiver as
a voluntary relinquishment of a known right. Both intent and knowledge, actual or constructive, are essential elements.
* * * *
The question of waiver is largely one of intention. It need not be proved by express declaration or agreement, but may be inferred from acts and conduct not expressly waiving the right.
Waiver is ordinarily a question of fact for the jury.
Engstrom v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 311-12, 41 N.W.2d 422, 424 (1950) (citations omitted). Appellants have not shown that, aside from accepting the September rent payment, respondent intended to waive its right to evict.
For the October rent payment, respondent's acceptance of the October rent did not waive its notice. See Minn. Stat. § 327C.11, subd. 2 (1998) (park owner who gives notice does not waive notice by afterwards accepting rent). Nor have appellants shown that respondent intended to waive the notice. In fact, respondent followed the October rent payment with a letter stating that it would commence an unlawful detainer action if appellants did not vacate on October 31. Respondent has not waived its right to evict appellants.
B. November Rent
Acceptance of rent for a period after the expiration of a final notice to quit waives that notice unless the parties agree in writing after service of the notice that the notice continues in effect.
Minn. Stat. § 327C.11, subd. 2.
Appellants cite several district court cases and an unpublished opinion as stating that the receipt and retention of a money order until the unlawful detention hearing constitutes acceptance. These cases are not controlling. See Minn. Stat. § 480A.08, subd. 3(c) (1998) ("[u]npublished opinions of the court of appeals are not precedential") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that, while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential"). Respondent's October 5 letter stating that no further rent would be accepted, its November 10 letter refusing the November rent payment, and its statement that the money order would be returned indicate that respondent did not accept the November rent payment.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.