Cmty. Homes of Bismarck Inc. v. Main

• Decision Date: 08 February 2011
• Docket Number: No. 20100095.,20100095.
• Citation: 2011 ND 27,794 N.W.2d 204
• Parties: COMMUNITY HOMES OF BISMARCK, INC., Plaintiff and Appelleev.Iris MAIN, Defendant and Appellant.
• Court: North Dakota Supreme Court

794 N.W.2d 204

2011 ND 27

COMMUNITY HOMES OF BISMARCK, INC., Plaintiff and Appellee

v.Iris MAIN, Defendant and Appellant.

No. 20100095.

Supreme Court of North Dakota.

Feb. 8, 2011.

Deborah Joan Carpenter, Bismarck, N.D., for plaintiff and appellee.Bradley D. Peterson (argued) and Meredith Vukelic (appeared), Bismarck, N.D., for defendant and appellant.CROTHERS, Justice.

[¶ 1] Iris Main appeals from a district court judgment evicting her from an apartment owned by Community Homes of Bismarck, Inc., after the district court found she materially breached her rental agreement with Community Homes. We conclude the district court did not clearly err in finding Main materially breached her rental agreement with Community Homes. We affirm.

I

[¶ 2] In June 2009, Main's application for public housing assistance through Burleigh County Housing Authority was denied on the ground she owed a prior landlord “$1,244.55 for unpaid rent, damages and/or move-out charges,” which “occurred while on assistance” in 2001. Main requested an informal hearing for the denial of public housing assistance. Main appeared at a June 25, 2009 informal settlement conference with her caseworker from the Abused Adult Resource Center, and Cheryl Tryhus appeared at the conference for the Burleigh County Housing Authority and Community Homes. Counsel for Community Homes served as the conference officer at the informal settlement conference, and a July 6, 2009 letter prepared by counsel summarized the proceeding:

“[Main] admitted she had owed the money, but that such charges stemmed from the time she lived with her husband.... He was very abusive, and the parties are now legally divorced. She is trying to get her ‘credit restored’, and is trying to put her life back together for herself and her three children. Most of the charges stemmed from damages to the carpet and the unit caused by her husband, and she does not know if the landlord has pursued anything against him, as he is in prison again. [Main's caseworker] states [Main] is ‘a completely different person’ from when she was with her abuser, and that she is ‘always good about following through’ with what needs to be done.”

[¶ 3] The July 6, 2009 letter stated that in order to receive public housing assistance, Main accepted Community Homes' offer to “resolve the [unpaid rent] issue” with her prior landlord, and if she resolved the issue with a repayment agreement, she was required to provide the Burleigh County Housing Authority with a written receipt evidencing appropriate payment by the last day of each month until the repayment agreement was paid in full. The letter stated that if Main violated any terms of her agreement, the lease would be terminated. Main and a collection agency for her prior landlord agreed to settle the prior debt for $629, with Main agreeing to pay the collection agency $100 per month starting by July 7, 2009. Main executed a written lease with Community Homes on July 23, 2009, and she received public housing assistance to lease an apartment from Community Homes. Main made payments to the collection agency through July 29, 2009, in three installments totaling $100, and she provided Community Homes with receipts for her payments.

[¶ 4] In September 2009, Community Homes notified Main that she had failed to make her August and September payments to the collection agency or to provide appropriate documentation for the payments and that Community Homes required her to vacate the premises. In October 2009, Community Homes served Main with a written notice of intention to evict, and in November 2009, Community Homes brought this action to evict Main, alleging she had breached a material provision of her lease or written agreement with Community Homes. Main claimed she lost her job and was unable to pay both her monthly rent to Community Homes and the past-due amount to the collection agency. She also claimed she had twelve months to repay the debt to the collection agency.

[¶ 5] At trial, Tryhus, a paralegal for Community Homes, and Nicole Schurhamer, the project manager for Community Homes, testified using documents containing prepared questions and answers. Each testified they had prepared the answers to the questions on their respective documents. After each witness testified, the court allowed Main to review the documents for cross-examination, and Main had each document admitted into evidence. Main also presented evidence the collection agency for her prior landlord agreed to not pursue any further collection action against her “based upon ... information that she is indigent. She had made voluntary payments beginning in July, 2009, and then stopped.” The district court entered judgment evicting Main from the apartment, finding she materially breached her lease with Community Homes by failing to comply with the requirement to resolve the unpaid rent issue with her prior landlord. The court found Main's belief that she had twelve months to repay her prior landlord was not reasonable.

II

[¶ 6] Main argues the district court denied her a fair trial by allowing Community Homes' employees Tryhus and Schurhamer to testify verbatim from documents not in evidence, without showing their memories needed refreshing. Main asserts Community Homes failed to use the correct procedure for refreshing the witnesses' memory and the district court's decision violated her constitutional right to due process and a fair trial. Main argues the court misapplied the law in allowing the witnesses to testify and in denying her motion to strike the witnesses' testimony. She argues Community Homes cannot show the error is harmless because its entire case consisted of the tainted testimony of those two witnesses.

[¶ 7] During Community Homes' direct examination of Tryhus, the following colloquy occurred:

“MR. PETERSON: Your Honor, maybe I'm wrong but it appears that the witness is testifying from a document. Could I have access to that document?

“WITNESS: It's my notes.

“THE COURT: Well if you're using that to testify, he has the right to access those documents, so if you don't want him to look at it, then don't testify from it. Otherwise, he gets the right to do that.

“Q. Are you going to be able answer from your memory?

“A. Not dates, no, but can I look at my file?

“MR. PETERSON: I guess I'd like to have access to what she's testifying from.

“THE COURT: Well the rules are ma‘am, that if you're using any documents for your testimony, then the other side gets full access to those documents.

“WITNESS: Okay.

“THE COURT: So that's—and I guess I'm not sure Mr. Peterson, if you want to take a break and look at her stuff or what.

“MR. PETERSON: I guess we can wait until after she's done testifying, Your Honor.”

[¶ 8] After Community Homes completed its direct examination of Tryhus, the court granted Main a ten-minute recess to review Tryhus's documents and thereafter permitted her to cross-examine Tryhus about the documents, which consisted of typed questions and answers with some handwritten notes. Tryhus testified she prepared the answers to the questions prepared by Community Homes' attorney. Main then moved to strike Tryhus's testimony:

“MR. PETERSON: Your Honor, I move to strike this testimony. This is a script that she worked off of. There's no way this rises to due process and fairness. Her testimony was—well I guess I'll admit it as an exhibit. If I might approach, Your Honor?

....

“THE COURT: I'm not sure I see what the problem is.

“MR. PETERSON: Your Honor, all of the answers were typed out. All the questions were typed out, the answers were typed out ahead of time with her attorney directing her testimony.

“THE COURT: So you're saying that attorneys shouldn't talk to their witnesses prior?

“MR. PETERSON: I actually encourage it Your Honor. My concern is she had the answers prepared and sitting in front of her. This is cheating on a test. She's not testifying from memory, she's reading off a script.

“THE COURT: Well you have the opportunity to cross examine all her answers and if there's something that is wrong with the answers, fine. I mean I understand your argument and it's kind of unusual that that is done that way but I just don't see how—it certainly doesn't rise to a due process violation. I mean the fact that she is answering the way her lawyer is expecting her to answer, I just don't see that it's a problem.

“MR. PETERSON: Your Honor, it's not how her lawyer expects, it's how her lawyer typed it out for her.

....

“THE COURT: I understand what your argument is, is that normally people don't sit up there with a script or whatever wording you want to use, where the question comes and the answer is, but to me it's no different than sitting down with your lawyer and thoroughly preparing and saying I'm going to ask you this, what's your answer going to be to that. I just don't see the difference. The only difference is that it's in writing, which I agree is unusual and maybe if this was a jury trial, the jury might not like that very well, but I just don't see that it rises to any level of violation of any of your client's rights. Again, I'm getting repetitive, but to me there's no difference between that and a lawyer that sits down and thoroughly prepares her client for what the questions are going to be and what she expects the answers to be. If you want to introduce it into evidence in the form of an offer of proof or whatever to preserve the record you can certainly do that ... and I'll allow that as an exhibit.”

Main thereafter introduced into evidence the document used by Tryhus during her testimony.

[¶ 9] During Community Homes' direct examination of Schurhamer, the following exchange occurred:

“MS. CARPENTER: If I might provide the witness a copy of the file Your Honor?

“THE COURT: All right. Well again, Mr. Peterson would have access to that.

“MR. PETERSON: I guess my question is do you also have a script Ms. Schurhamer?

....

“THE COURT: I think I made clear...