Bohlen v. Tyler
| Decision Date | 27 February 2002 |
| Docket Number | No. 21949.,21949. |
| Citation | 2002 SD 28,641 N.W.2d 134 |
| Parties | Earl D. BOHLEN, Plaintiff and Appellant, v. Kathy TYLER, d/b/a Tyler Computer Service, Defendant and Appellee. |
| Court | South Dakota Supreme Court |
David R. Strait of Austin, Hinderaker, Hopper, Strait & Bratland, Watertown, Attorneys for plaintiff and appellant.
Gregory P. Grajczyk of Boos and Grajczyk, Milbank, Attorney for defendant and appellee.
[¶ 1.] Earl D. Bohlen (Bohlen) sued Kathy Tyler, d/b/a Tyler Computer Service (Tyler), for an alleged breach of a lease agreement. The circuit court granted summary judgment in Tyler's favor. Bohlen appeals. We reverse.
[¶ 2.] On July 20, 1998, Tyler entered a three-year lease agreement with Bohlen, the owner of Whetstone Mall in Milbank, South Dakota. Pursuant to this agreement, Tyler was to rent office space in the Whetstone Mall for her computer business. In March of 1999, Tyler moved out of the rented office space and into a larger building she purchased. Tyler decided she needed a larger location to accommodate her computer business.
[¶ 3.] Tyler argues that prior to the move, she had been released from the lease agreement with Whetstone Mall. Tyler bases that claim on a conversation she had with Betty Dockter, (Dockter), Bohlen's property manager, in which Dockter indicated that there would be no problem re-renting the office space where Bohlen had her computer store. Tyler stated in her deposition that she assumed she was "out of the contract" after that conversation. Dockter, however, said that she informed Tyler that she was still obligated for the Whetstone Mall lease payments.
[¶ 4.] In response to this demand for rent, Tyler wrote a letter to Bohlen stating the following:
Last week, Betty informed me that you were still expecting me to pay rent on the office space I had moved from on March 20. I guess there had been a misunderstanding on my part. I had earlier requested that I be released from my three-year contract. I was told that you were renting the office and thus assumed that I had been released from the contract.
The letter proceeded to explain how Tyler could not afford to pay rent and make payments on her new office. It then alleged the lease agreement was unenforceable by stating:
[¶ 5.] Bohlen did not release Tyler, but rather filed a petition for recovery of the rent. Both parties then filed motions for summary judgment. The circuit court judge, after viewing a number of affidavits and exhibits, denied Bohlen's motion, but granted summary judgment in favor of Tyler. Bohlen appeals the lower court's decision on the following issue:
Whether the trial court erred by granting summary judgment based on its finding that the property use was in violation of Milbank's city zoning ordinances.
[¶ 6.] We have previously held that:
[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Further, [i]f no issues of material fact exist, and legal questions have been correctly decided, we will affirm.
Tri County Landfill Assoc., Inc. v. Brule County, 2000 SD 148, ¶ 9, 619 N.W.2d 663, 667. When reviewing a grant of summary judgment, "[t]he evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party." Meyer v. Santema, 1997 SD 21, ¶ 8, 559 N.W.2d 251, 254 (quoting Lamp v. First Nat'l Bank of Garretson, 496 N.W.2d 581, 583 (S.D. 1993)). "The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." Id. (citation omitted).
[¶ 7.] The trial court, in granting summary judgment, held that the purpose for which the premises was leased was not a permitted use under Milbank's zoning ordinances 17.32.020 and 17.32.030.
[¶ 8.] Tyler submitted this ordinance violation as a defense to Bohlen's claim for the lease payments. The trial court relied on Central States Health and Life Company of Omaha v. Miracle Hills Limited Partnership, 235 Neb. 592, 456 N.W.2d 474 (1990) in its summary judgment order. This case presents four methods for handling a lease where the property use violates a zoning ordinance. Those four methods include:
Id. at 597, 456 N.W.2d 474 (internal citations omitted).
[¶ 9.] In Central States Health and Life Company, the court determined that the lease was "void ab initio" based on a zoning ordinance violation. Under Milbank City Ordinances 17.32.020 (permitted uses) and 17.32.030 (special uses), however, it is it unclear whether a violation has occurred in the case at hand. Moreover, it was Tyler's burden to prove that the zoning ordinance made her use of the building illegal. In McNally v. Moser, the Maryland court, while explaining this burden, stated the following:
It was the appellants who asserted that they had been relieved of their liability under the lease and who had the burden of persuading the court that [the zoning ordinance] produced the result they claim—that the use of the leased premises for a professional office was impossible in fact. The appellants offered neither witnesses nor other evidence requiring such a finding.
210 Md. 127, 122 A.2d 555, 560 (1956). The court further said:
Dr. McNally, [appellant and lessee,] having brought about the challenge to the use so that he could escape his responsibilities under the lease, could not stand idly by and, because of a notice to that effect from an administrative official, gladly accept as fact that his use of the office was illegal ... [H]e was under an obligation ... to continue that use, or at least to wait until impossibility became a fact, not merely a possibility. One may not rely on illegality or invalidity where the doing of that said to be forbidden may reasonably be made legal and possible through administrative or judicial action.
Id. at 561. In St. Luke's House, Incorporated, v. DiGiulian, 274 Md. 317, 336 A.2d 781 (1975), this holding was cited approvingly as the court addressed whether a property use violated a restricted covenant. In St. Luke's, the court said, "One who relies on illegality, failure of consideration or other affirmative defenses, has...
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