Hieb v. Jelinek

• Decision Date: 23 February 1993
• Docket Number: No. 920200,920200
• Citation: 497 N.W.2d 88
• Parties: Robert N. HIEB and Mary Haas, Plaintiffs and Appellees, v. Adolph JELINEK, Defendant and Appellant, and Leonard Jelinek and Jeff Jelinek, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 88

497 N.W.2d 88

Robert N. HIEB and Mary Haas, Plaintiffs and Appellees, v. Adolph JELINEK, Defendant and Appellant and Leonard Jelinek and Jeff Jelinek, Defendants.

Civ. No. 920200.

Supreme Court of North Dakota.

Feb. 23, 1993.

Steven J. Lies of Lies, Bullis and Grosz, Wahpeton, for plaintiffs and appellees.

Adolph Jelinek, pro se.

VANDE WALLE, Chief Justice.

Adolph Jelinek appealed from an amended judgment of the Richland County Court which evicted Adolph Jelinek, Leonard Jelinek, and Jeff Jelinek, as lessees, from real property owned by lessors Robert Hieb and Mary Haas. The amended judgment ordered that the Jelineks surrender possession of the property, pay back rents and interest, and remove a millet crop they had planted on the property. We affirm.

On December 1, 1989, Hieb and Haas leased their neighboring farmlands in Richland County, North Dakota, to Adolph and Leonard for a term of two years terminating on December 1, 1991. Four payments at specified time intervals were called for by the lease, the last being due on November 1, 1991. If any lease payment was not tendered when due, the lease agreement called for interest to be assessed at 12% per annum on the unpaid amount of the overdue payment.

In 1990, without the knowledge of Hieb or Haas, Adolph and Leonard sublet the property to Jeff, Adolph's son, despite the wording of the lease which stated that it "shall not be assignable" without the written permission of Hieb and Haas.

The first two lease payments were apparently paid by Adolph or Leonard. Jeff issued a rental check to Hieb for the third lease payment. After the final, November 1, 1991, lease payment was past due, Hieb and Haas served a "Notice of Intent to Evict, Terminate Lease and Re-enter to Recover Possession of Leased Property" on Adolph, Leonard, and Jeff on January 14, 15, and 16, 1992, respectively. On January 24, 1992, a complaint was filed against Adolph, Leonard, and Jeff for eviction, back rent, interest, and removal of the millet crop they had planted on the property. The county court held in favor of Hieb and Haas on all issues, and Adolph appealed. ¹

Rule 10(b) of the North Dakota Rules of Appellate Procedure states that it is the appellant's responsibility to order a transcript of the proceedings below so we may more fully understand the facts of the case and the rationale for the trial judge's decision. Adolph has not furnished a transcript of the proceedings below. He assumes the consequences and risks of failing to do so, as he has the burden of demonstrating that the findings of the trial court were clearly erroneous. Rosendahl v. Rosendahl, 470 N.W.2d 230 (N.D.1991). Without a transcript, we can review only the briefs and record to make a "meaningful and intelligent" decision regarding the outcome of this case. Cullen v. Williams County, 446 N.W.2d 250 (N.D.1989).

I.

Adolph contends that the Richland County Court lacked both personal and subject-matter jurisdiction over the case because there were no references to jurisdiction in the complaint, orders, or judgments. The subject-matter jurisdiction of county courts is codified at section 27-07.1-17, NDCC; and those over whom a county court may exert personal jurisdiction is provided for by Article VI of the North Dakota Constitution, and Chapters 27-01 and 27-07.1, NDCC. We have consistently held that, with limited exceptions, county courts are empowered with the subject-matter jurisdiction to hear eviction actions and those claims associated with them. Farm Credit Bank of St. Paul v. Brakke, 483 N.W.2d 167 (N.D.1992); United Bank of Bismarck v. Trout, 480 N.W.2d 742 (N.D.1992); Farm Credit Bank of St. Paul v. Martinson, 478 N.W.2d 810 (N.D.1991); South Forks Shopping Center v. Dastmalchi, 446 N.W.2d 440 (N.D.1989). Because the action was one for damages and eviction from property located in Richland County, the subject-matter jurisdiction of the Richland County Court was established. NDCC Secs. 27-07.1-17(1)(d), 33-06-01. Similarly, because Adolph, Leonard, and Jeff were physically present and served within Richland County, the personal jurisdiction over them was established.

A court need not make specific findings as to jurisdiction or cite to case law or statutory authority if no contest to jurisdiction was presented. The jurisdiction of a court which renders a decision is presumed to have been regularly and validly entered into, and we will not inquire into the jurisdiction of a court unless the lack of jurisdiction is obvious from the face of the judgment. See Lende v. Wiedmeier, 179 N.W.2d 736 (N.D.1970); Bartell v. Morken, 65 N.W.2d 270 (N.D.1954). We conclude that the Richland County Court had personal jurisdiction of the parties and subject-matter jurisdiction of this action.

II.

Adolph contends that the venue of the action was improper. Venue, "the place of trial," imports the principle that a party generally has the right to have an action tried in the proper county Selland v. Selland, 494 N.W.2d 367 (N.D.1992). The venue of actions relating to real property must be in the county where the property is located. NDCC Sec. 28-04-01. The property which Adolph leased is located in Richland County. The proper venue was Richland County Court. Stonewood Hotel v. Davis Development, 447 N.W.2d 286 (N.D.1989).

We have no record indicating Adolph took issue with venue at the trial level. The action was properly venued in this case.

III.

Adolph contends that the trial court erred because it did not specify any form of law in its orders or judgments. The laws relating to the form and contents of judgments are contained in Rule 54, NDRCivP and Title 32, NDCC. Neither of these sources requires the trial court to specify or cite to statutes, rules, or case law when entering orders or judgments--although it is helpful to the appellate process to do so.

IV.

Adolph's next contention involves Paragraphs One and Six of the lease contract. These paragraphs read:

"1. ... That in the event said cash rent is not paid when due interest shall accrue on the unpaid amount at 12% from the due date."

* * * * * *

"6. Upon the expiration of this lease, the parties of the second part shall have the first option of renewing it on whatever terms the party of the first part shall offer the same for and if the parties of the second part decline to renew it on said terms, the party of the first part may lease the same to such other party as he may select."

Although he did not tender the final lease payment, Adolph asserts that Hieb and Haas breached the lease because they failed to comply with its renewal provisions. He contends that Paragraph Six, read with Paragraph One, envisioned a possibility of delinquent rental payments. If a payment was delinquent, the lease remained in effect, and, according to Adolph, the landlord's only remedy would be a 12% per annum penalty on the overdue payment amount. Adolph rationalizes that because Hieb and Haas did not offer the option to renew upon the expiration of the lease's two-year term, Hieb and Haas first breached the lease contract. Hieb and Haas, on the other hand, contend that the Jelineks breached the lease by not tendering the November 1, 1991 lease payment, so they were under no obligation to extend to them the right of first refusal to relet the property.

The trial court found that the Jelineks did not pay the rent which was due on November 1, 1991. Paragraph One of the lease states that Adolph and Leonard "shall pay" $2,583.75 on November 1, 1991 to Hieb and Haas. As an express condition of the lease, Paragraph Eight reads:

"8. That the violation of any of the terms of the Contract and Lease shall result in the same being declared null and void by the party of the first part and any payments or improvements made on said real estate by the parties of the second part shall be forfeited to the party of the first part as liquidated damages."

Because the rent was not paid, Hieb and Haas could treat the lease as null and void in accordance with Paragraph Eight, thus allowing them two remedial options. ² They could commence an eviction action through Chapter 33-06, NDCC, ³ or they could wait until the natural expiration of the lease on December 1, 1991 and refuse to relet the property. They chose the latter, but when the Jelineks refused to vacate the property and pay the unpaid lease portion after the natural termination of the lease, Hieb and Haas commenced an eviction action against them. In view of section 33-06-01(4), NDCC, supra, f.n. 3, and the Jelineks' nonpayment of rents, the court did not err in ordering the eviction.

Because the Jelineks refused to pay the rent which was due, Hieb and Haas were under no obligation to extend to them the right of first refusal to relet the property as contained in Paragraph Six of the lease. The primary consideration for any lease is the rent to be paid. Because nonpayment of rent substantially undermines the basis for the agreement, it would be fundamentally unfair to require a landlord to offer a tenant a right of first refusal when rental payments are uncertain or delinquent. See Hindquarter Corp. v. Property Development Corp., 95 Wash.2d 809, 631 P.2d 923 (1981); Brown v. Hoffman, 628 P.2d 617 (Colo.1981); Gadsden Bowling Center, Inc. v. Frank, 249 Ala. 435, 31 So.2d 648 (1947).

Therefore, it is commonly held that the right to exercise an option to renew a lease or the right to demand a first refusal to renew, is implicitly dependent upon the faithful performance of the conditions and covenants contained in the lease. It is axiomatic, then, that the nonpayment of rents precludes a lessee from demanding a right of first refusal or exercising an option to renew. Thrifty Dutchman v. Florida Supermarkets, 541 So.2d 634, f.n. 2 (Fla.Ct.App.1989); Hindquarter, supra; Brown, supra; Nork v. Pacific Coast Med. Enterprises, 73 Cal.App.3d 410, 140 Cal.Rptr. 734 (1977); Wanda Ellen Wakefield, Annotation, Right to Exercise Option...