Bert Clark, Respondent, vs. Michael Smith, Appellant.

Bert Clark, Respondent, vs. Michael Smith, Appellant. A04-1850, Court of Appeals Unpublished, July 19, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1850

 

Bert Clark,
Respondent,
 
vs.
 
Michael Smith,
Appellant.

 

Filed July 19, 2005

Affirmed

Minge, Judge

 

Otter Tail County District Court

File No. C3-04-1610

 

 

Sarah K. Moore, Legal Services of Northwest Minnesota, 1114 Broadway, Alexandria, MN 56308 (for appellant)

 

Bert Clark, 227 East Vernon Avenue, Fergus Falls, MN 56537 (pro se respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Minge, Judge; and Parker, Judge.* 

MINGE, Judge

U N P U B L I S H E D  O P I N I O N

            Appellant, a residential tenant, challenges the district court's order issuing a writ of recovery to allow respondent landlord to regain possession of an apartment.  Because there is no evidence in the record that the tenant made any actual attempt to pay to the landlord or the court the sum owed in order to redeem his tenancy, we affirm. 

FACTS

            Appellant Michael Smith has been renting an apartment in Fergus Falls from respondent Bert Clark.  The tenancy was month to month.  Rent was due at the beginning of each month, and appellant had not paid the rent for July and August 2004.  In August 2004, appellant and respondent agreed that if Otter Tail Wadena Community Action paid appellant's July rent and appellant paid his August and September rent by September 3, 2004, appellant could stay in the apartment.  In the agreement, respondent stated that he would initiate eviction proceedings if the rent was not paid by September 3, 2004.  On September 7, 2004, respondent filed an eviction action, claiming appellant's August and September rent was unpaid. 

            On September 16, 2004, a hearing on the eviction occurred.  Both appellant and respondent testified that on September 3, 2004, appellant offered respondent part of the rent due for September and August, and that respondent refused to accept partial payment.  Appellant testified that he would pay the whole amount due later, but only had part of the money at that time.  Appellant stated that he later told respondent over the telephone that he had the full amount of money.  Respondent testified that he never heard from appellant after September 3.  Respondent also testified that he sent appellant a letter telling him that he could pay his past rent, but that respondent would still seek to evict him.  Respondent testified that he did not want appellant in the apartment even if he paid the full rent due because of other problems, such as suspected drug use in the apartment.  Appellant's attorney stated that appellant was still willing to make some type of payment at the time of the hearing. 

            The district court found that appellant failed to pay rent, stating that "a plan to pay is not payment.  A promise to pay is not payment."  The district court stated that "[a]n offer to pay rent is not payment of rent, and it was not in a timely fashion.  Therefore, he is delinquent."  The district court entered its order in the eviction action on September 16, 2004, ordering that a writ for recovery of premises be issued, with the order stayed until September 30, 2004. 

            Appellant filed a motion to stay the writ of restitution pending appeal, waive the cost and the appeal bonds, and prepare a transcript at no cost to appellant.  At the same time, an appeal to this court was filed.  Appellant's motion was granted by the district court, and appellant was directed to pay rent to the court as it came due to protect respondent's interest.      

D E C I S I O N

 

            The issue in this case is whether the district court erred by ordering a writ of recovery of premises even though appellant claims that he tried to redeem.  On appeal of an eviction action, this court reviews the district court's findings of fact for clear error.  Schuett Inv. Co. v. Anderson, 386 N.W.2d 249, 252 (Minn. App. 1986).  We review questions of law, such as statutory interpretation, de novo.  Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 702 (Minn. 1999). 

Appellant claims that the district court erred both because it did not recognize appellant's attempts to pay respondent prior to the hearing and because the district court did not allow appellant to make a partial payment at the hearing and to pay the remaining balance up until the writ was issued on September 30.  The district court stated that appellant never actually paid respondent the amount due because he only offered, promised, or made a plan to pay the full amount due at a future date.  The statute states

the tenant may, at any time before possession has been delivered, redeem the tenancy and be restored to possession by paying to the landlord or bringing to court the amount of the rent that is in arrears, with interest, costs of the action, and an attorney's fee not to exceed $5, and by performing any other covenants of the lease.

 

Minn. Stat. § 504B.291, subd. 1(a) (2004).  Generally, when paying a debt, for a tender of money to be valid, "the money must be actually produced and proffered, unless the creditor expressly or impliedly waives this production." Deering Harvester Co. v. Hamilton, 80 Minn. 162, 164, 83 N.W. 44, 44-45 (1900); Pinney v. Jorgenson, 27 Minn. 26, 27-28, 6 N.W. 376 (1880).  Nowhere in the record is there evidence that appellant did more than promise to pay the amount due or state over the telephone that he was willing to pay the amount due.  There is no evidence that appellant made an actual attempt at payment that respondent refused.  While respondent testified that after September 3, 2004, he informed appellant that he would proceed with the eviction even if appellant paid him the amount due, he also stated that he would accept the full amount of rent due.  At no time did respondent refuse full payment.  Based on these facts, the district court did not err by finding that appellant's offers or promises did not constitute actual attempted payment by appellant of the amount due in order to exercise his statutory right of redemption. 

            Appellant asks this court to hold as a matter of law that appellant should have been able to make the full payment of what he owed before the respondent required him to physically vacate the premises on September 30, 2004.  Because there is no evidence in the record that appellant ever made an actual attempt to redeem by offering a full payment, we do not reach this issue.[1] 

Although the district court did not consider and the parties did not address the availability of redemption to tenants at will on month-to-month leases, we are aware of caselaw that indicates that the right of redemption does not apply in such tenancies.  See Univ. Cmty. Props. v. New Riverside Cafe, 268 N.W.2d 573, 575 (Minn. 1978).      

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] We recognize that despite the clear statutory language allowing redemption by paying all amounts due "at any time before possession has been delivered," Minn. Stat. § 504B.291, subd. 1(a), there are court determinations that indicate the right of redemption "applies until a court has issued an order dispossessing the tenant and permitting reentry by the landlord."  614 Co. v. D.H. Overmyer Co., 297 Minn. 395, 397, 211 N.W.2d 891, 894 (1973), accord Paul McCusker & Assocs., Inc. v. Omodt, 359 N.W.2d 747, 748-49 (Minn. App. 1985), review denied (Minn. Mar. 29, 1985).  Although these decisions were made prior to rewriting the current unlawful detainer statute, the relevant portions of the current and the former statutes are virtually the same.  CompareMinn. Stat. § 504.02 (1982) with Minn. Stat. § 504.291, subd. 1(a) (2004).  The reconciliation of the statutory language and the court decisions is a task for the supreme court.