Nelson v. Johnson

20090133 Kathy Nelson, Plaintiff and Appellee
v.
Carol Johnson, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Steven E. McCullough
Nature of Action: Landlord/Tenant
Counsel:
Appellant: Pro se
Appellee: Jonathan T. Garaas
Term: 10/2009   Argument: 10/01/2009  10:45AM
ND cite: 2010 ND 23
NW cite: 778 N.W.2d 773

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Issues: Appellant's Statement of the Issues:
1.The trial court erred in denying Defendant's motion to dismiss, because the court lacked personal jurisdiction over the Defendant, for lack of service of process of the three-day notice required by N.D.C.C.  33-06-02 and Rule 4, and Defendant requests the Supreme Court to vacate the judgment.
2. Alternatively, the trial court erred in denying Defendant's motion to dismiss as a matter of law, for Plaintiff's failure to state any claim on which relief could be granted, because the statutory notice required by N.D.C.C.  33-06-02 was not given. Defendant requests this Court to find that the complaint should have been dismissed without prejudice on that basis.
3.The trial court erred in ruling that a defense of retaliatory eviction may not be asserted in a forcible detainer action, as a matter of law. Defendant requests this Court to establish that a tenant may assert such a defense in a residential eviction action under applicable North Dakota. Defendant further requests this Court to find that Defendant sustained her burden of proving the defense of retaliatory eviction as a bar to recovery by the Plaintiff, as a matter of law.
4.Finally, the trial court made no specific findings or conclusions of law at the hearing in regard to Defendant's affirmative defenses of waiver and equitable estoppel, which Defendant also asserted as bars to recovery by the Plaintiff. Defendant believes the trial court may have abused its discretion in that respect, and requests this Court to find that under the facts presented in this case, Defendant sustained her burden of proving both such defenses as a bar to recovery by the Plaintiff in this proceeding.

Appellee's Statement of the Issues:
Appellant Carol Johnson ["Johnson"]sets forth four (4) appellate issues arising out of the Judgment of March 3, 2009, obtained against her in an eviction action. The first two (2) issues raised by Johnson involve the service of the statutory notice, required under N.D.C.C.  33-06-02 as a condition prerequisite to maintain an eviction action. Appellee Kathy Nelson ["Nelson"] submits the first two (2) issues of Johnson asserted in the alternative, should be combined and phrased as follows:
1. Can the three day notice to quit, required under N.D.C.C.  33-06-02, be served upon a tenant by posting?
Nelson submits Johnson's third and fourth issues are moot; Johnson has vacated Nelson's premises. However if such issues were determined by this Court not to be moot, the issues should be framed as follows:
2. Do the district court's findings of fact, conclusions of law, and oral pronouncements at hearing adequately explain why the district court rejected Johnson's defenses of retaliatory eviction, waiver or equitable estoppel?
3. Was the district court clearly erroneous when it rejected Johnson's alleged defenses to the eviction action?


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Docket entries:
104/28/2009 NOTICE OF APPEAL: 04/27/2009
205/27/2009 ORDER FOR TRANSCRIPT: 05/14/2009
306/01/2009 MOTION TO EXTEND BRIEFING SCHEDULE
406/02/2009 ACTION BY CLERK (MAT) TRA due 7/6/09 - ATB/ATA due 40 days after TRA filed. Granted
506/23/2009 Letter from Attorney Gregory Thompson dated 6-22-09 RE: No longer represents Kathy Nelson
607/01/2009 TRANSCRIPT DATED February 25, 2009, & C.O.S.
707/02/2009 DISK-tra (2/25/09) e-mailed
807/06/2009 RECORD ON APPEAL
907/06/2009 APPELLANT BRIEF & ATTACHED APPENDIX
1007/23/2009 DISK-atb (e-mailed)
1107/24/2009 Rec'd corrected 8 copies of TOA and corresponding pages
1207/24/2009 Rec'd 9 separate appendices.
1307/27/2009 Affidavit of Service by Mail (ATB)
1408/05/2009 APPELLEE BRIEF
1508/06/2009 DISK - AEB (CD-ROM)
1608/27/2009 MOTION TO DISMISS APPEAL AS MOOT. RspDue: 09/08/2009
1709/09/2009 Response to Motion to Dismiss Appeal Filed
1809/14/2009 NOTICE OF ORAL ARGUMENT MAILED
1909/22/2009 ACTION BY SUPREME COURT (Mot/Dismiss). Denied
2009/23/2009 Order Denying Motion to Dismiss Mailed to Parties
2110/01/2009 APPEARANCES: Carol Johnson,pro se/Jonathan T. Garaas
2210/01/2009 ARGUED: Johnson/Garaas
2310/01/2009 ORAL ARGUMENT WEBCAST
2402/17/2010 DISPOSITION: AFFIRMED
2502/17/2010 SPLIT OPINION: Maring, Mary Muehlen
2602/17/2010 (DISSENTING): Sandstrom, Dale V.: DISSENT
2702/17/2010 Costs on appeal taxed in favor of appellee
2802/18/2010 Judgment Sent to Parties
2903/19/2010 MANDATE
3003/30/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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