River Ridge Dairy, L.L.P., Plaintiff, vs. Hammers Construction Company, Inc., Defendant, and Hammers Construction Company, Inc., Third Party Plaintiff, Respondent, vs. Symington Construction Co., Third Party Defendant, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-2

 

Tim Walters,

Respondent,

 

vs.

 

Rebecca Demmings,

Appellant.

 

Filed June 12, 2001

Reversed Hanson, Judge

 

Hennepin County District Court

File No. Ud-1001004526

 

Tim Walters, 6950 France Avenue South, #220, Edina, MN 55435 (respondent pro se)

 

Lawrence R. McDonough, Legal Aid Society of Minneapolis, Inc., 2929 Fourth Avenue South, Minneapolis, MN 55408 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.

U N P U B L I S H E D  O P I N I O N

HANSON, Judge

In this eviction proceeding, appellant-tenant alleges: (a) because the eviction occurred within 90 days after tenant's attempt to enforce rights against respondent-landlord, the district court erred by placing the burden of proof of a retaliatory eviction on tenant rather than requiring landlord to show a non-retaliatory reason for the eviction and (b) landlord failed to introduce evidence sufficient to meet his burden.  We reverse.

F A C T S

Appellant Rebecca Demmings rented a south Minneapolis apartment from respondent Tim Walters pursuant to a lease dated December 1, 1997.  The rent was $480 per month.  After the initial lease period expired, the parties continued the tenancy on a month-to-month basis.  On August 21, 2000, Demmings received notice from Walters that he would terminate the lease effective September 30, 2000.

Demmings and Walters had twice been involved in litigation relating to their landlord-tenant relationship.  On June 6, 2000, Demmings had mailed a letter to Walters requesting that he repair the roof of the rental property.  An October 26, 2000, the Minneapolis housing inspector had issued two repair orders, although neither concerned the roof of the rental property.  All of these circumstances occurred within 90 days before Walters's issuance of the notice to terminate the lease. 

The Hennepin County Housing Court found that Minnesota law required Walters to prove that his purpose in terminating the lease was not retaliatory because Demmings had recently attempted to enforce her rights under the lease.  See Minn. Stat. § 504B.285, subd. 2(2) (2000) (placing the burden on the landlord of proving that the notice to quit was not served for a retaliatory purpose where notice was served within 90 days after tenant's attempt to enforce tenancy rights).  The housing court concluded that Walters, proceeding pro se, provided a non-retaliatory reason for terminating the lease by stating that the rent was below market value and he was losing money on the property.  The court also concluded that Demmings's attempts to enforce her rights were "not material enough to evince a retaliatory intent."  The court entered judgment in favor of Walters restoring the premises to his possession.

When Demmings sought review of the housing court decision, the district court concurred with the housing court's finding that Walters provided a non-retaliatory motive for the eviction.  This appeal followed.

D E C I S I O N

On appeal from a civil judgment, we consider whether the evidence supports the findings and whether the findings sustain the conclusions.  Minneapolis Pub. Hous. Auth. v. Greene, 463 N.W.2d 558, 560 (Minn. App. 1990).  We will not set aside findings of fact unless we find them to be clearly erroneous.  Minn. R. Civ. P. 52.01.

Demmings contends that Walters failed to meet his burden of proving a non-retaliatory basis for the termination of the lease because the few words he offered to satisfy that burden came not in sworn testimony, but in his closing argument.  She also argues that the housing court's decision, while properly acknowledging that the burden of proof was upon Walters, ultimately shifted the burden to her in its conclusion that she failed to impute a retaliatory purpose to Walters's actions.  Finally, Demmings argues that, even if Walters's closing argument had evidentiary content, it was insufficient to refute a retaliatory motive.

I.

Either party to a month-to-month lease may terminate the lease by providing a written notice to the other party at least one rental period in advance of the termination date.  Minn. Stat. § 504B.135 (2000).  However, a landlord may not terminate a lease in retaliation for the tenant's good-faith attempt to enforce rights.  Minn. Stat. § 504B.285, subd. 2(1) (2000).  If the notice to quit is served within 90 days after a tenant's good-faith attempt to secure or enforce lease rights, the burden of proof shifts to the landlord to show by a fair preponderance of the evidence that the notice to quit was not retaliatory.  Id., subd. 2(2) (2000).  The Minnesota Supreme Court interpreted the statutory predecessor to section 504B.285 to require

a substantial nonretaliatory reason for the eviction, arising at or within a reasonably short time before service of the notice to quit.  A nonretaliatory reason is a reason wholly unrelated to and unmotivated by any good-faith activity on the part of the tenant * * *.

 

Parkin v. Fitzgerald, 307 Minn. 423, 430, 240 N.W.2d 828, 832 (1976).  The court cautioned that

even a legitimate business purpose must be closely examined to ensure that it is not contrived or colored in any way by tenants' protected activities.

 

Id.

            Demmings correctly points out that Walters failed to provide proof of a non-retaliatory purpose.  While Walters mentioned that the amount of rent paid by Demmings was below market value and that he was losing money on the property, he made these comments in his closing argument, not while he was under oath as a witness.  The district court's findings and conclusions must be drawn from evidence that appears in the record.  Carlson Real Estate Co. v. Soltan, 549 N.W.2d 376, 380 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).  Although Walters was proceeding pro se and apparently unaware of the proper procedure for the introduction of evidence, his statements in closing argument cannot fairly be treated as evidence because Demmings did not have an opportunity to cross-examine Walters on these statements or to provide rebuttal testimony to them.  Poston v. Colestock, 540 N.W.2d 92, 94 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996).  Thus, the district court erred in finding that Walters's offered evidence of a non-retaliatory motive.

II.

            The housing court also erred when it shifted the burden of proof to Demmings on the issue of retaliation.  The court stated in its conclusions of law that Demmings "submits three factors occurring within 90 days of the notice to quit to demonstrate that the notice to quit was retaliatory."  However, Demmings did not need to prove retaliatory intent; but only that she had made a good-faith attempt to enforce her rights under the lease within 90 days before the notice of quit.  To the contrary, the legal consequence of the three factors cited by the housing court was to shift the statutory burden of proof to Walters.  See Minn. Stat. § 504B.285, subd. 2(2).  Walters was presumed to have retaliated against Demmings and the onus was on him to prove by a fair preponderance of the evidence that his motives were non-retaliatory.  Id.  He failed to do so.

III.

            Finally, Demmings argues that, even if Walters properly submitted evidence of his motive in terminating the lease, that evidence was insufficient to prove a non-retaliatory motive.  As previously cited, the Minnesota Supreme court has defined the quantum of evidence necessary to rebut the presumption of a retaliatory purpose:

A landlord must establish by a fair preponderance of the evidence a substantial nonretaliatory reason for the eviction, arising at or within a reasonably short time before service of the notice to quit.  A nonretaliatory reason is a reason wholly unrelated to and unmotivated by any good-faith activity on the part of the tenant protected by the statute (e.g., nonpayment of rent, other material breach of covenant, continuing damage to premises by tenants, or removal of housing unit from market for a sound business reason).  Such a standard will give full protection to tenants and will enhance the legislative policy of liberal construction of statutory covenants to insure adequate housing.

 

                                    * * * * .

 

[E]ven a legitimate business purpose must be closely examined to ensure that it is not contrived or colored in any way by tenants' protected activities.

 

Parkin, 307 Minn. at 430, 240 N.W.2d at 832. 

Walters made the conclusory statement that the rent was below market value and he was losing money on the property.  However, he offered no details or documentary support for that conclusion.  While Walters offered a "legitimate business purpose" as his non-retaliatory motive, the court did not subject the purpose to the close examination that the Parkin court advised.[1]  Because the reasons offered by Walters were not sufficiently material to satisfy the standard articulated by the Parkin court, the district court erred by finding that Walters substantiated a non-retaliatory reason for the eviction.

Reversed.

 

[1] Neither the housing court nor the district court cites the Parkin decision.