This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).





Bossen Terrace,



Teshon Price, et al.,

Appellants (C5-98-434),

Petitioners (C1-98-480).

Filed October 6, 1998


Peterson, Judge

Hennepin County District Court

File No. 1971105534

Damon L. Ward, Ward, Goins, Ward & Wood, P.A., 1919 University Avenue, Suite 116, St. Paul, Minnesota 55104 (for appellants)

Sandra Agvald, Sandra K. Agvald & Associates, P.A., Suite 1770, 150 South Fifth Street, Minneapolis, MN 55402-4200 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.



In this unlawful detainer appeal, appellant-tenants claim (a) their eviction was retaliatory; (b) respondent-landlord waived its ability to evict by accepting rent after events on which the eviction is based; (c) Minn. Stat. § 504.215 (Supp. 1997) precludes eviction; and (d) they were deprived of due process of law. We affirm.


Appellant-tenants Teshon Price and Randolph Williams leased section VIII housing from respondent-landlord Bossen Terrace in December 1995. Tenants complained to landlord and to the Department of Housing and Urban Development (HUD) about the unit's condition. HUD investigated and was satisfied with landlord's explanation regarding repairs. On September 30, 1997, landlord sent tenants a notice of termination of the lease, effective October 31, 1997, alleging that between July 1996 and September 1997 tenants committed actions that, individually and in the aggregate, allowed eviction. Landlord accepted rent from tenants for October 1997 but not November 1997 and, in early November 1997, started an unlawful detainer action. After refusing to provide witness fees to tenants, a housing court referee ruled for landlord. The district court affirmed. Tenants appeal. Landlord seeks costs on appeal.


1. Noting that they complained about their unit to landlord and to HUD less than 90 days before landlord served them with the termination notice, tenants challenge the finding of a nonretaliatory eviction. See Minn. Stat. § 566.03, subd. 2 (1996) (if landlord serves tenant with notice to quit within 90 days of tenant's good faith attempt to enforce rights under lease or report of code violations, landlord must prove notice "was not served in whole or part for a retaliatory purpose"); Minn. Stat. § 566.28 (1996) (similar requirement in tenants' rights proceedings).

To show a nonretaliatory basis for eviction, a landlord must show "a substantial nonretaliatory reason for the eviction" Parkin v. Fitzgerald, 307 Minn. 423, 430, 240 N.W.2d 828, 832 (1976). Here, the referee found landlord proved three incidents where the police became involved with one or both tenants and that these incidents constituted repeated minor violations of the lease. Because Parkin requires a "substantial" reason to terminate a lease, tenants allege the eviction ruling was "wrong as a matter of law." The lease states landlord may terminate the lease for "material noncompliance" which is defined as including "repeated minor violations of the lease." To adopt tenants' argument would be to rule landlord could not terminate the lease despite tenants' "material noncompliance." Nothing in Parkin precludes a "substantial nonretaliatory reason" from being composed of repeated minor violations. Here, however, tenants claim that because landlord never reprimanded them or issued a notice of infraction regarding the eviction-related events, landlord acquiesced in that conduct and waived its ability to evict based on that conduct. See Parkin, 307 Minn. at 431, 240 N.W.2d at 833 (keeping pet on leased property not substantial lease violation justifying termination given landlord's "prior acquiescence" in having pet on property). This is essentially an argument that landlord acquiesced in the assaults and disorderly conduct by Williams that prompted the police involvement. We decline to rule that a landlord cannot evict for conduct that violates not only the lease, but the law as well. Also, if the purpose of a notice of infraction is to inform a tenant that a lease was violated, any failure to do so here was a harmless error because Williams was arrested or ticketed in each of the relevant events. He was on notice his behavior was unacceptable. See Minn. R. Civ. P. 61 (harmless error to be ignored). Finally, to the extent tenants claim landlord's manager testified landlord had sought to evict others after two minor lease violations but that their eviction was not pursued until more violations accrued, tenants are arguing that they were given too may chances.

Tenants argue that the referee and the district court should have ruled that the notice of termination was prompted by their complaints about the property. This argument is essentially that the referee and district court should have disbelieved landlord's claims about the basis for the eviction. We reject this argument. See Caroga Realty Co. v. Tapper, 274 Minn. 164, 169, 177, 143 N.W.2d 215, 220, 224 (1966) (appellate court defers to fact finder on credibility and weight, if any, to be given testimony).

2. Generally, acceptance of rent after a lease violation waives a landlord's ability to use the violation as a basis to evict if the violation is "known" to the landlord when the rent is accepted. Priordale Mall Investors v. Farrington, 411 N.W.2d 582, 584 (Minn. App. 1987). Here, landlord's termination notice alleged 10 lease violations between July 31, 1996 and September 10, 1997, including six after July 28, 1997.

The facts of Priordale do not indicate that the lease clause at issue required the occurrence of repeated lease violations to warrant eviction. See Priordale, 411 N.W.2d at 584 (tenant breached lease by operating a second business near leased premises); see also Parkin, 307 Minn. 431, 240 N.W.2d at 833 (nonpayment of rent and ownership of pet); Thomas Peebles & Co. v. Sherman, 148 Minn. 282, 283, 181 N.W.715, 715 (1921) (subletting leased premises). We conclude that the waiver rule should not apply when an accumulation of violations is required to justify eviction. To adopt tenants' position that landlord's acceptance of rent after July 1997 waived landlord's ability to evict would be to require landlords to not accept rent while minor violations are accumulating or accept rent but risk learning much later (in a court ruling) that they waived their ability to evict. Because it is unlikely landlords will refuse to collect rent, tenants' analysis would encourage landlords seeking to evict for repeated minor lease violations to try to do so as quickly as possible. Here, landlord should not be penalized for accepting rent for a period during which it had a good-faith belief that violations were accumulating. Indeed, the denial of tenants' request for sanctions under Minn. R. Civ. P. 11 shows that the district court concluded landlord reasonably believed lease violations had occurred.[1]

3. Tenants note that the events the district court used to justify the eviction involve the police at their home and argue that Minn. Stat. § 504.215 (Supp. 1997) precludes eviction. Tenants made this argument to the referee but did not brief it to the district court. The parties cite no authority showing this court can address an issue raised to a housing court referee but not to the district court. Cf. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed on appeal are waived); Kahn v. Tronnier, 547 N.W.2d 425, 428 (Minn. App. 1996) (failure to seek district court review of family-court referee's ruling limits review to whether evidence supports findings and whether findings support conclusions and judgment), review denied (July 10, 1996). We exercise our discretion under Minn. R. Civ. App. P. 103.04 and address the argument.[2]

The statute precludes a landlord from limiting a tenant's right to seek police or emergency assistance or from penalizing a tenant for actually calling for emergency assistance. Minn. Stat. § 504.215, subd. 2(a). The police were involved in the incidents and Williams was twice arrested for domestic assault and once ticketed for disorderly conduct. Tenants' argument seems to be that because the police were involved, these events cannot be considered by landlord in deciding whether to evict tenants. Tenants fail to distinguish a party's call to the police (which the statute says may not be considered when a landlord makes an eviction decision), from the reason for the call (which the statute does not preclude from being considered when a landlord makes an eviction decision). See Minn. Stat. § 504.215, subd. 4 (stating statute "[s]hall not be construed to condone or permit any breach of a lease or of law by a tenant"); see also 1997 Minn. Laws ch. 133 preamble (stating Minn. Stat. § 504.215 "prohibit[s] landlords from penalizing tenants solely for seeking police or emergency assistance") (emphasis added). Here, it was not improper for the conduct underlying the police calls to be considered by landlord in deciding whether to evict tenants.

4. Tenants argue the referee deprived them of due process of law by requiring a preliminary showing of merit to their case before providing witness fees. Because this issue was not decided by the district court, it is not properly before us. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts address only issues presented to and decided by district court); Rainbow Terrace, Inc. v. Hutchens, 557 N.W.2d 618, 621 (Minn. App. 1997) (applying Thiele to unlawful detainer action under Minn. Stat. ch. 327C).[3]

5. Because it is premature, landlord's request for costs is denied. See Minn. R. Civ. App. P. 139.01 (prevailing party entitled to costs); 139.03 (prevailing party's failure to tax costs and disbursements "within 15 days after the filing of the decision" waives claim for costs and disbursements) (emphasis added).


[1] This good-faith analysis also addresses tenants' argument that, because the last violation landlord proved occurred in July 1997 and landlord did not serve notice of termination until September 1997, landlord did not serve the notice of termination within a "reasonably short time" after the violations as required by Parkin.

[2] For purposes of this opinion, we assume Minn. Stat. § 504.215 applies.

[3] Were we to address the issue, however, we would find no deprivation of due process. Consistent with Minn. Stat. § 357.24 (1996), the referee initially quashed subpoenas because tenants obtained and served subpoenas without providing the subpoenaed witnesses with witness fees. Tenants claim the referee later denied motions for witness fees. Apparently, these were oral motions made during the week after trial started and included an assertion by tenants that fees were denied for a failure to make a preliminary showing of merit to the case. Because the referee explicitly rejected this assertion, to adopt tenants' argument would require us to assume the referee erred by intentionally misrepresenting her reason for denying the fees. This we cannot do. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (appellate courts cannot assume district court error).