Kolling v. Goodyear Tire and Rubber Co., 9489

• Decision Date: 28 November 1978
• Docket Number: No. 9489,9489
• Parties: Frank X. KOLLING and Agnes Theresia Kolling, Plaintiffs-Appellants, v. The GOODYEAR TIRE and RUBBER COMPANY, an Ohio Corporation, Defendant-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 54

272 N.W.2d 54

Frank X. KOLLING and Agnes Theresia Kolling, Plaintiffs-Appellants, v. The GOODYEAR TIRE and RUBBER COMPANY, an Ohio Corporation Defendant-Appellee.

Civ. No. 9489.

Supreme Court of North Dakota.

Nov. 28, 1978.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for appellants; argued by James D. Geyer, Dickinson.

Reichert, Howe, Hardy, Galloway & Jorgensen, Dickinson, for appellee; argued by Donald L. Jorgensen, Dickinson.

PAULSON, Justice.

Frank X. Kolling (hereinafter Kolling) and his wife, Agnes T. Kolling, have appealed to this Court from the judgment of the Stark County Court of Increased Jurisdiction dismissing their forcible detainer action against The Goodyear Tire and Rubber Company (hereinafter Goodyear) which leases certain premises in the City of Dickinson from the Kollings for use as a tire store. This appeal is consolidated with the Kollings' appeal from the order of the Stark County District Court denying them a trial de novo based upon jurisdictional grounds. The Kollings brought their forcible detainer action when Goodyear refused to vacate the leased premises after it had been given notice that its lease had been terminated because of alleged zoning ordinance infractions which violated the lease. The Stark County Court of Increased Jurisdiction found that Goodyear had fully complied with the terms and conditions of the lease and that the Kollings did not properly terminate the lease. Accordingly, the court held that Goodyear was not in violation of the provisions of the lease and was entitled to continued possession of the leased premises. We affirm. We also affirm the district court's order dismissing the Kollings' appeal for lack of jurisdiction.

In 1966, Goodyear and the Kollings signed a lease which provided that the Kollings would construct a building on several lots owned by them in the City of Dickinson and would lease the premises to Goodyear for a term of ten years. In addition, Goodyear was given the option to lease the premises for three additional five-year terms. The rental fee was six hundred twenty-five dollars ($625.00) per month for the duration of the lease.

In 1967, Kolling obtained a building permit from the City of Dickinson and constructed a building for use as a tire store pursuant to Goodyear's plans and specifications. Goodyear's plans specified that eleven off-street parking spaces were to be constructed on the premises. Although the Dickinson City Code, at the time, required that a newly-constructed retail or service establishment the size of the Goodyear store have a minimum of thirty off- street parking spaces, the building permit which was issued required only eleven off-street parking spaces.

Goodyear began storing new and used tires on the parking lot area surrounding the tire store in areas specifically designated for off-street parking approximately five years before the Kollings brought this forcible detainer action. Kolling, at that time, orally objected to the storage of tires and the resultant decrease in parking spaces because he believed that the storage violated Dickinson's zoning ordinances and the lease.

The lease provides, in pertinent part:

"3. Lessee is hereby permitted to use and occupy the premises for the sale of such products and furnishings of such services as in Goodyear Service Stores generally, including but not limited to, selling to consumers and to others, tires, tubes, oil and other lubricants, motor and tire accessories and kindred products, and for the servicing, storing and repairing of motor vehicles, tires, tubes, accessories and kindred products, or For any other lawful purposes. (Emphasis added.)"

"16. If Lessee shall be in default . . . in the performance of any of the covenants or conditions hereof, and shall fail to correct and rectify any such default within thirty (30) days from the receipt of written notice thereof from Lessor, . . . Lessor may enter into said premises, and again have and repossess the same as if this lease had not been made and shall thereupon have the right to cancel this lease, without prejudice, however, to the right of Lessor to recover all rent due to the time of such entry. . . ."

Although the Dickinson City Code required thirty off-street parking spaces in 1967 when the tire store building was built, the building permit was issued with only eleven parking spaces specified in the building plans. Therefore, it appears that Goodyear is not required to have more than eleven parking spaces on the tire store lot. Kolling contends that § 34-6, Dickinson City Code, ¹ precludes Goodyear from decreasing the number of required off-street parking spaces without a written variance from the board of adjustment of the City of Dickinson pursuant to § 34-28(b), Dickinson City Code. ²

In addition, the Kollings contend that Goodyear's storage on the parking lot of used tire carcasses not meant for resale constituted a violation of § 34-144, Dickinson City Code, which prohibits the open storage of materials "not on display for direct sale . . . to the ultimate consumer." ³

The alleged zoning violations are as follows:

(1) The storage of tires on the northeast corner of the parking lot that blocked parking spaces and decreased visibility at the intersection;

(2) The storage of tires on the west side of the parking lot that blocked five parking spaces; and

(3) The storage of used tire carcasses and other rubbish not meant for resale on the parking lot itself rather than in an enclosed area.

Kolling, beginning in 1972 or 1973, orally complained to Goodyear about the storage of tires on the parking lot. However, no official action was taken by the City of Dickinson until 1975. On October 10, 1975, Edward Karsky (hereinafter Karsky), the building inspector for the City of Dickinson, wrote Goodyear and requested that the tires and other merchandise be removed from the northeast corner and west side parking areas. Karsky testified at the trial that the tire storage on the northeast corner created visibility problems at the intersection and violated the zoning ordinance requiring that a business establishment maintain a certain number of off-street parking spaces. When Goodyear failed to correct the tire storage situation, Karsky wrote Goodyear on January 20, 1976, and demanded that the tires be removed within ten days. At a subsequent meeting with Goodyear Karsky learned that Goodyear was extremely short on storage space because it had substantially increased its inventory to prepare for a pending rubber strike. Karsky then orally granted Goodyear permission to temporarily store tires on the west parking area but required that all tires be removed from the northeast On May 14, 1976, Kolling wrote a letter to Goodyear's home office in which he objected to Goodyear's continued storage of tires on parking spaces because it allegedly violated the lease and zoning ordinances. He requested that Goodyear comply with the Dickinson zoning requirements.

corner parking area. No permanent written variance was granted. Goodyear complied with this agreement.

In June of 1976 Goodyear and the City of Dickinson reached an agreement on the tire storage problem. Karsky gave Goodyear oral permission to store tires on the west side parking area not less than 20 feet from the sidewalk. No written variance was granted. The Goodyear home office wrote Kolling in July of 1976 to inform him of the tire storage agreement which had been approved by Karsky.

On August 29, 1977, Goodyear wrote Kolling to notify him of its decision to exercise its option to renew the lease for a five-year period. Kolling responded with a letter on September 26, 1977, in which he refused to recognize Goodyear's option to extend the lease because he believed that Goodyear had violated the lease by continuing to store tires in violation of city zoning ordinances.

Goodyear wrote Kolling on October 4, 1977, and stated that the premises could be used for any lawful purpose, that the June, 1976, agreement with Karsky allowed the storage of tires on the west side parking area, and that Kolling should advise Goodyear if the tires were not being stored in accordance with the agreement.

On October 25, 1977, Kolling sent Goodyear a Notice of Termination of the lease which was to be effective December 1, 1977. When Goodyear failed to return the tire store to Kolling on December 1, 1977, Kolling served a Notice to Quit and Vacate and commenced a forcible detainer action to evict Goodyear on December 8, 1977.

The Stark County Court of Increased Jurisdiction heard the forcible detainer action on January 19, 1978, and entered a judgment for Goodyear dismissing the Kollings' claim on February 8, 1978. The Kollings then appealed to the Stark County District Court for a trial de novo pursuant to § 33-11-16, N.D.C.C. The district court dismissed the Kollings' appeal on April 13, 1978, because it lacked jurisdiction. On April 14, 1978, the Kollings appealed to the North Dakota Supreme Court from the judgment of the Stark County Court of Increased Jurisdiction. The Kollings also appealed the district court's order dismissing their appeal for a trial de novo. The parties have agreed to consolidate the two appeals before this Court.

During the trial in the county court of increased jurisdiction, the Kollings presented certain relevant evidence which is summarized as follows:

1. Dickinson's zoning ordinances prohibit the outdoor storage of items not meant for resale;

2. The Dickinson zoning ordinances prohibit the change of a use, such as a decrease in the number of required parking spaces, without a written variance;

3. Goodyear was in violation of certain zoning ordinances between October, 1975, and January, 1976;

4. After January, 1976, Goodyear had stored tires on authorized parking spaces without receiving a written variance; and

5. After January, 1976, Goodyear occasionally stored tire carcasses not meant for resale on the parking lot.

Goodyear...