Mitchell v. Preusse, 10744
| Decision Date | 28 November 1984 |
| Docket Number | No. 10744,10744 |
| Parties | Glenn MITCHELL and Mike Neuwirth, Plaintiffs and Appellees, v. Richard PREUSSE, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Michael C. O'Neel, Fargo, attorney for plaintiffs and appellees; submitted on brief.
Ramlo Law Office, Fargo, attorney for defendant and appellant; submitted on brief.
Richard Preusse (Preusse) appealed a Cass County Court judgment awarding Glenn Mitchell and Mike Neuwirth (Mitchell and Neuwirth) damages for breach of an apartment rental contract.
In late July 1983 Mitchell and Neuwirth arrived in Fargo from their homes in Minnesota to obtain housing while they attended college. They located an apartment Preusse owned which at that time he was remodeling. Doors needed to be hung, windows repaired, a refrigerator installed, and the apartment cleaned. However Mitchell and Neuwirth were not moving to Fargo until September 1 and Preusse promised them the apartment would be ready for occupancy by that time. Consequently, on 28 July 1983 Mitchell and Neuwirth signed a three-month lease with Preusse and paid him $300 for the first month's rent and $300 as a security deposit.
On 2 September 1983 Mitchell and Neuwirth arrived in Fargo and discovered the remodeling had not been completed and the apartment was in substantially the same condition it was when they had signed the lease a month earlier. Preusse indicated the apartment would be ready for occupancy by 7 September, the day before Mitchell and Neuwirth's college classes started. Mitchell and Neuwirth left some furniture and boxes in the apartment and returned home.
On 7 September Mitchell arrived in Fargo with some furniture but again discovered the apartment was in the same state as it had been a week earlier. Unable to move into the apartment, Mitchell stayed in a motel that night. The following day Mitchell and Neuwirth located another apartment, terminated their lease with Preusse and requested him to return their rental payment and security deposit. Preusse consented to the cancellation of the lease but failed to return the rental payment or security deposit.
Mitchell and Neuwirth sued Preusse in small claims court but Preusse removed the case to Cass County court for a bench trial. The Cass County court concluded Preusse breached the rental contract by failing to have the apartment ready for occupancy by 1 September 1983 and awarded Mitchell and Neuwirth $300.00 for their rental payment. The court further concluded Preusse withheld Mitchell and Neuwirth's security deposit without reasonable justification and awarded Mitchell and Neuwirth treble damages of $900.00. NDCC Sec. 47-16-07.1(3). Preusse appealed.
North Dakota Century Code Sec. 47-16-13.1(1)(b) required Preusse, as a landlord of a residential dwelling unit, to do whatever was necessary to maintain the apartment in a fit and habitable condition. The trial judge determined the apartment was unrentable, i.e., uninhabitable, and that Preusse failed to make it habitable within a reasonable time. See NDCC Sec. 47-16-13.1(2). The trial judge concluded this constituted a breach of the rental contract by Preusse. These are findings of fact and under North Dakota Rule of Civil Procedure 52(a) such findings will not be overturned unless we are left with a definite and firm conviction a mistake has been made. Weiss v. Anderson, 341 N.W.2d 367, 369 (N.D.1983). We conclude the trial court's determination that Preusse had breached the rental contract is not clearly erroneous and therefore it is affirmed.
Preusse contended that Mitchell and Neuwirth waived the breach of the rental contract by allowing him time from 1 September to 8 September to make the apartment habitable and also by storing furniture and boxes in the apartment. We find this argument unconvincing and without merit. Mitchell and Neuwirth were required by NDCC Sec. 47-16-13.1(2) to give Preusse a reasonable time to make the apartment habitable. Also, Mitchell and Neuwirth's storage of some furniture and boxes in the apartment did not constitute an intentional election to waive Preusse's breach and continue under the lease. See Marchand...
To continue reading
Request your trial
-
Peters-Riemers v. Riemers
...have been aware of the impossibility of his success on appeal," we cannot say the same about all his assertions. See Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D.1984). Accordingly, we deny the request for costs and attorney V [¶ 28] We affirm the district court's order. [¶ 29] GERALD W. V......
-
Riemers v. O'HALLORAN
...which could be seen as evidence of bad faith.'" Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 7, 658 N.W.2d 756 (quoting Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D.1984)). In light of our decisions in Roberdeau, 2003 ND 124, 665 N.W.2d 719, and Loran, 373 N.W.2d 870, and the conclusory natur......
-
Wachter v. Gratech Co., Ltd.
...they are clearly erroneous. See All Seasons Water Users v. Northern Improvement Co., 399 N.W.2d 278, 280 (N.D.1987); Mitchell v. Preusse, 358 N.W.2d 511, 513 (N.D.1984). A trial court's determination of the amount of damages caused by a breach of contract is also a finding of fact subject t......
-
Porth v. Glasoe
...evidences bad faith. Williams v. State, 405 N.W.2d 615, 625 (N.D.1987); Healy v. Healy, 397 N.W.2d 71, 76 (N.D.1986); Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D.1984). Porth's appeal is not substantively frivolous, and we are not persuaded it was taken in bad faith. Accordingly we deny C......