A06-461

Dale Nathan,

Appellant,

vs.

Town Centre Self Storage, LLC,

Respondent.

Filed February 13, 2007

Affirmed

Hudson, Judge

Dakota County District Court

File No. C8-05-10002

Dale Nathan, 1230 Eagan Industrial Road, Suite 150, Eagan, Minnesota 55121 (pro se appellant)

Marvin A. Liszt, Sarah L. Krans, Bernick & Lifson, P.A., Suite 1200, The Colonnade, 5500 Wayzata Boulevard, Minneapolis, Minnesota 55416 (for respondent)

Considered and decided by Hudson, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

This is an appeal from a judgment of dismissal. Appellant sued respondent, from which he rented a storage cubicle, after the respondent charged him late fees, contending that the late fees were illegal penalties and inappropriate liquidated damages. After respondent waived all late fees and gave notice that the rental agreement would be terminated, the district court declared the suit moot and dismissed it. Appellant argues that (1) he suffered damages as a result of the contract termination; (2) factual issues remain as to whether respondent’s termination of its contract was retaliatory; and (3) the district court made a number of procedural errors. We affirm.

FACTS

In February 2004, appellant Dale Nathan entered into a rental agreement with respondent Town Centre Self Storage. The rental agreement provided for late fees of $10 if the rent was not paid within five days of the due date and an additional late charge of $1 per day after the fourth day subsequent to the due date. Appellant did not pay his rent on time for the months of May and June 2005 and respondent charged appellant $50 in late fees. In early July 2005, respondent informed appellant that a lien had been imposed on his property at the self-storage facility and that the property would be sold at public auction unless the balance on the account was paid. At that time, the balance due on appellant’s account was $220, which included $170 in rent and $50 in late fees. On August 4, 2005, appellant filed a complaint in district court, alleging that respondent breached the rental agreement and that the late fees were unreasonable and excessive. Appellant sought compensatory damages in the amount of $55,000 (the value of appellant’s property stored at the self-storage facility) as well as an additional $110,000 in damages, attorney’s fees, costs and disbursements, and statutory fees. Respondent submitted an answer and counterclaim seeking dismissal of appellant’s claim for failure to state a claim upon which relief can be granted pursuant to Minn. R. Civ. P. 12.02 and failure to comply with Minn. Stat. § 549.211.

In October 2005 appellant paid respondent $425 rent for the months of June, July, August, September, and October, but did not pay any of the late fees. In early November, respondent mailed appellant a statement in which it waived the late fees due on appellant’s account. On December 1, 2005, appellant filed a motion for partial summary judgment, in which he sought a declaration by the district court that portions of the rental agreement were illegal and unenforceable, and that the late charges assessed by respondent were illegal and uncollectible. Respondent submitted a responsive memorandum to the district court, in which it claimed that appellant’s claims were “frivolous and moot.” On December 2, 2005, respondent mailed appellant a letter in which it again waived all claims for any late charges under the rental agreement and notified appellant that the rental agreement would be terminated on January 28, 2006.

The district court held a hearing on appellant’s motion for partial summary judgment on December 20, 2005. At the hearing, the district court considered the pleadings as well as memoranda and affidavits submitted by both parties. On January 9, 2006, the district court issued an order denying appellant’s motion for summary judgment and granting respondent’s motion to dismiss. In its memorandum, the district court stated that appellant “did not incur any damage and no controversy continues to exist,” and that his claims were “moot.” This appeal follows.

D E C I S I O N

Appellant argues that (1) he suffered damages as a result of the contract termination; (2) factual issues remain as to whether respondent’s termination of the contract was retaliatory; and (3) the district court made a number of procedural errors.

Because the district court considered matters outside the pleadings when making its decision to dismiss appellant’s claim, this court reviews the district court’s decision under a summary judgment standard. Minn. R. Civ. P. 12.02 (“If, on a motion asserting the defense that the pleading fails to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . .”). On appeal from summary judgment “it is the function of [an appellate] court only to determine (1) whether there are any genuine issues of material fact and (2) whether the trial court erred in its application of the law.” Carlson v. Lilyerd, 449 N.W.2d 185, 187 (Minn. App. 1989) (quotation omitted), review denied (Minn. Mar. 8, 1990). The evidence will be viewed in the light most favorable to the nonmoving party. Westrom v. Minn. Dep’t of Labor & Indus., 686 N.W.2d 27, 32 (Minn. 2004). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, and affidavits “show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. The party opposing summary judgment “may not rest upon the mere averments or denials of the adverse party’s pleading but must present specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” Minn. R. Civ. P. 56.05.

The district court dismissed appellant’s claims as moot. Whether a case is moot is a legal question, which this court reviews de novo. Dunham v. Roer, 708 N.W.2d 552, 563 (Minn. App. 2006). “[M]ootness can be described as the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. (quoting Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005)). Generally, a claim may be dismissed as moot “if an event occurs that resolves the issue or renders it impossible to grant effective relief.” Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn. App. 2004), review denied (Minn. Apr. 4, 2005).

The relevant material facts are not in dispute. Both parties agree that there was a signed rental agreement that provided for late fees in the event that rental payments were late, that late fees were assessed by respondent, that respondent waived those late fees, and that appellant has subsequently removed his property from respondent’s facility. All of appellant’s claims were based on late fees charged by respondent and the threatened sale of appellant’s property. Furthermore, as the district court correctly noted, appellant has not suffered any injury. For these reasons, appellant’s claims are moot and we conclude that the district court did not err by denying appellant’s motion for summary judgment and subsequently dismissing his claims.

Appellant also argues that issues of material fact remain with respect to whether he suffered damages as a result of the termination of the rental agreement and whether that termination was retaliatory under Minn. Stat. § 504B.285 (2004). Section 504B.285 applies to both commercial and residential tenants, Cloverdale Foods of Minn., Inc., v. Pioneer Snacks, 580 N.W.2d 46, 50–51 (Minn. App. 1998) (referring to Minn. Stat. § 566.03, which was replaced by Minn. Stat. § 504B.285, effective July 1, 1999), and provides a defense “to an action for recovery of premises following the alleged termination of a tenancy by notice to quit.” Minn. Stat. § 504B.285, subd. 2. However, because there is no challenge to an eviction action before us, this statute is not applicable.

Finally, appellant’s claims that he did not receive adequate notice of respondent’s motion to dismiss and that the district court made a number of procedural errors are meritless. Respondent served its motion to dismiss on appellant in August 2005, and the hearing before the district court did not take place until December 2005. Appellant plainly received adequate notice. And, based on our review of the record, we see no procedural errors by the district court.

Affirmed.