Peterson v. Front Page, Inc., 900140

• Decision Date: 31 October 1990
• Docket Number: No. 900140,900140
• Citation: 462 N.W.2d 157
• Parties: Vernon PETERSON, Plaintiff and Appellant, v. FRONT PAGE, INC., Ned L. Nastrom, Sr. and Douglas J. Bowers, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 157

462 N.W.2d 157

Vernon PETERSON, Plaintiff and Appellant, v. FRONT PAGE, INC., Ned L. Nastrom, Sr. and Douglas J. Bowers Defendants and Appellees.

Civ. No. 900140.

Supreme Court of North Dakota.

Oct. 31, 1990.

E.J. Rose, Bismarck, for plaintiff and appellant.

Irvin B. Nodland (argued), of Nodland, Tharaldson & Dickson, Bismarck, for defendants and appellees.

LEVINE, Justice.

Vernon F. Peterson appeals from a judgment dismissing his claim for breach of lease and ordering $9,600 held in trust delivered to the defendants. ¹ We affirm in part, reverse in part, and remand for entry of a judgment consistent with this opinion.

Peterson sued for breach of a commercial lease signed in 1979 and renewed in 1984, covering real property in Bismarck. He sought rents due for the period April 1986 until December 1986, and for damages caused by the wrongful abandonment of the leased property at the end of December 1986. After a trial to the court, the district court found that Peterson had breached his duty to maintain the parking lot, the heating and air conditioning systems, and the elevator, and had breached an option-to-purchase provision of the lease. Because Peterson had been given reasonable time to correct his breaches and did not correct them, the court concluded the tenant was entitled to abandon the lease. Nine thousand six hundred dollars, representing a portion of the rents due for eight months prior to the abandonment of the lease, and paid into an escrow account, was awarded to the defendants as damages for Peterson's breach of the lease.

Peterson argues that the trial court erred when it found that he had breached the lease. Whether a party has breached a lease is a finding of fact. See Hutton v. Janz, 387 N.W.2d 494, 496 (N.D.1986). Under the lease, Front Page could terminate only if Peterson failed to correct any breach within fifteen days from written notice. ² Peterson claims that he never received the written notice that was a predicate to his duty to make repairs, and argues that the court's finding that he received notice was clearly erroneous.

We will not reverse the trial court's findings of fact unless clearly erroneous. Rule 52(a), NDRCivP. A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Dakota Bank & Trust Co. v. Federal Land Bank, 437 N.W.2d 841, 843 (N.D.1989).

Peterson argues that the court was wrong when it found he had received the notice required under the lease, and points to the court's finding that Peterson had received oral notice from Front Page's manager through an agent, as early as 1981. Whether the finding that Peterson received oral notice in 1981 is erroneous is immaterial because there is another finding that Peterson received written notice in October 1984 and April 1986 that the parking lot, air conditioning and heating systems, and elevator needed repairs. ³ The record shows that Peterson received letters dated October 31, 1984 and April 18, 1986 and that these letters contained demands that Peterson repair dilapidations. Peterson does not deny receiving these letters; therefore, the trial court's finding that Peterson received written notice is not clearly erroneous.

The trial court also found that Peterson did not make the repairs he had a duty to complete. Peterson does not claim he made the repairs. We conclude that the trial court's finding that Peterson breached the lease and Front Page had the right under the lease to terminate is supported by the record. Consequently, it is unnecessary to review Peterson's challenge to the trial court's finding that Peterson breached the option-to-purchase clause of the lease.

Peterson argues, in the alternative, that Front Page waived the right to terminate because it remained in possession of the leasehold for more than two years after serving notice in October 1984. A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Stenehjem v. Sette, 240 N.W.2d 596, 600 (N.D.1976). "A party who makes an unexplained delay in enforcing his contractual rights or who accepts performance in a manner different from that required by the contract has been held to have acquiesced to the nonconforming performance made by the other party." Dangerfield v. Markel, 252 N.W.2d 184, 191 (N.D.1977). The trial court found there was no waiver by Front Page of its right to terminate. The existence or absence of waiver is a finding of fact. See Allen v. Minot Amusement Corp., 312 N.W.2d 698, 702 (N.D.1981).

The record shows that Front Page made its demand for repairs in writing in 1984 and 1986. Front Page's manager testified that he repeated orally the demands to Peterson's son, who had been designated an agent in respect to complaints concerning the leased property. While there was delay between the genesis in the fall of 1984 of the right to terminate the lease and the exercise of that right in December of 1986, the fact that the condition of disrepair continued throughout the period and that Front Page repeated its demands for repairs during that period supports the trial court's finding that Front Page did not waive its right to terminate the lease. We cannot say, therefore, that the finding of no waiver was clearly erroneous.

Peterson also challenges the trial court's award of $9,600 of disputed rents to Front Page as damages for Peterson's breach of the lease. Peterson argues that Front Page did not plead any damages for his breach of the lease, and that Front Page's counsel indicated at the pretrial conference that no damages would be sought at the trial. The pretrial colloquy addressed Front Page's "counterclaim" for damages...