Stonewood Hotel Corp., Inc. v. Davis Development, Inc.

• Decision Date: 24 October 1989
• Docket Number: No. 890045,890045
• Citation: 447 N.W.2d 286
• Parties: STONEWOOD HOTEL CORPORATION, INC., Plaintiff and Appellee, v. DAVIS DEVELOPMENT, INC., Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 286

447 N.W.2d 286

STONEWOOD HOTEL CORPORATION, INC., Plaintiff and Appellee, v. DAVIS DEVELOPMENT, INC., Defendant and Appellant.

Civ. No. 890045.

Supreme Court of North Dakota.

Oct. 24, 1989.

Beauclair & Cook, Bismarck, for plaintiff and appellee; argued by James L. Norris

Kelsch, Kelsch, Ruff & Austin, Mandan, for defendant and appellant; argued by Thomas D. Kelsch.

LEVINE, Justice.

Davis Development, Inc. (Davis), appeals from the judgment in an eviction action brought by Stonewood Hotel Corporation, Inc. (Stonewood). We reverse and remand for further proceedings.

On July 18, 1988, Stonewood purchased the Stonewood Inn from Norwest Bank. At the time of the purchase, the Stonewood Inn was being operated by Davis and Seven Seas, Inc. After the purchase, Davis operated the bar in the Stonewood Inn while Davis and Stonewood negotiated the terms of a contemplated long-term lease. Barry Davis is the chief executive officer of Seven Seas, Inc., and he and his ex-wife own Davis. It is undisputed that the parties contemplated two leases--a bar lease for Davis and a restaurant lease for Seven Seas, Inc. The parties continued their negotiations until Stonewood's attorney informed Davis' attorney by letter that Stonewood was withdrawing its offer to lease the bar facilities to Davis and directed Davis to vacate the bar premises by November 30, 1988.

By summons and complaint served on December 19, 1988, Stonewood brought an action in Morton County Court to evict Davis from the premises. The Honorable Benny A. Graff, Presiding Judge of the South Central Judicial District, assigned the matter to the Honorable Burt L. Riskedahl, a judge of the Burleigh County Court. The matter was tried in the Burleigh County Courthouse on December 29 and 30, 1988. The court denied Stonewood's motion to join Seven Seas, Inc.; denied Davis' motion for dismissal based on improper venue; concluded that "[t]here existed a month-to-month tenancy at will between the parties from July 19, 1988, to November 30, 1988;" concluded that "[t]he parties in good faith negotiated for a long-term lease but the parties did not ever come to an agreement on a long term lease;" and concluded that Davis should vacate the premises by January 31, 1989. Judgment was entered accordingly and Davis has appealed, raising the following issues:

"I. WHETHER VENUE OF THIS CASE IN BURLEIGH COUNTY WAS PROPER.

"II. WHETHER SEVEN SEAS WAS AN INDISPENSABLE PARTY TO THE EVICTION ACTION.

"III. WHETHER THE PARTIES AGREED TO ALL MATERIAL TERMS OF A LONG-TERM LEASE.

"IV. WHETHER STONEWOOD IS BOUND TO THE LEASE AGREEMENT BECAUSE OF PART PERFORMANCE BY DAVIS.

"V. IF THERE IS NO LONG-TERM LEASE, WHETHER THE LEASE RELATIONSHIP WAS A MONTH-TO-MONTH LEASE, OR ONE-YEAR LEASE PURSUANT TO 47-16-05, NDCC."

1. Venue

Venue means the place of trial. III W. Blackstone, Commentaries on the Laws of England *384; 77 Am.Jur.2d Venue Sec. 1, p. 832 (1975); Black's Law Dictionary 1396 (5th ed.1979). Because the real property involved is located in Morton County, Sec. 28-04-01, N.D.C.C., required the action to be brought in Morton County, "subject to the power of the court to change the place of trial upon agreement of counsel or in other cases provided by statute."

Stonewood brought the action in Morton County but in its summons directed Davis to appear before the Morton County Court in the Burleigh County Courthouse on December 29, 1988. In its answer, Davis alleged that "[t]he proper venue for the trial of the action is the Morton County Courthouse, and the Defendant objects to any and all proceedings outside of that venue." The trial court overruled Davis' objection on the ground that "[t]he trial was only held at the Burleigh County Courthouse because no space was available in Morton County as of December 29, 1988."

Relying on Sec. 28-04-01, N.D.C.C., Davis argued that "in absence of an agreement or Court order, Davis had an absolute right to trial in Morton County." Stonewood, on the other hand, argued that "Section 28-04-07(3), N.D.C.C., provides the court with authority to allow the trial to be held in Bismarck since the ends of justice would be promoted."

Section 28-04-07(3), N.D.C.C., provides that the court may change the place of trial "[w]hen the convenience of witnesses and the ends of justice would be promoted by the change." "A motion for a change of venue is addressed to the sound judicial discretion of the trial court." Marshall v. City of Beach, 294 N.W.2d 623, 625 (N.D.1980). A movant for change of venue must show "that both the convenience of witnesses and the ends of justice would be promoted by such a change." Id., at 628. Generally, the convenience of parties will not be considered. Jerry Harmon Motors, Inc. v. First National Bank & Trust Co., 440 N.W.2d 704, 711 (N.D.1989); American State Bank of Dickinson v. Hoffelt, 246 N.W.2d 484 (N.D.1976). Courts may consider the relative speed with which a trial may be had when determining venue questions. See, e.g., Mullen v. Mullen, 135 Minn. 179, 160 N.W. 494 (1916); Thomas v. Small, 121 A.D.2d 622, 504 N.Y.S.2d 132 (1986); Gerber v. B.C.R. Hotel Corp., 10 A.D.2d 956, 201 N.Y.S.2d 749 (1960); 77 Am.Jur.2d Venue Sec. 65 (1975).

The instant action was an eviction action under Ch. 33-06, N.D.C.C., which is a summary proceeding to recover possession of real estate. South Forks Shopping Center, Inc. v. Dastmalchi, 446 N.W.2d 440 (N.D.1989); Fireman's Fund Mortgage Corp. v. Smith, 436 N.W.2d 246 (N.D.1989). Section 33-06-02, N.D.C.C., provides an "expedited time period [of 3 to 15 days] ... within which a defendant must appear and defend in an eviction action." Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236, 240 (N.D.1988).

While it is a close question, we are not persuaded that the trial court abused its discretion in allowing the action to be tried in the Burleigh County Courthouse. In view of the summary nature of an eviction action and the absence of a jury trial, the ends of justice were promoted by conducting the trial within the period allotted by Sec. 33-06-02, N.D.C.C. No courtroom was available in Morton County for the prompt resolution of the action. The Burleigh County Courthouse was convenient for the witnesses, who were owners of the corporations or their attorneys. Under these circumstances, trial in Burleigh County was permissible and the trial court did not abuse its discretion in changing venue.

2. Indispensable party

Rule 19, N.D.R.Civ.P., provides for the joinder of persons needed for just adjudication. Rule 19(b) provides for the dismissal of actions in which a person cannot be made a party and is indispensable. Davis contends that, by not joining Seven Seas, Inc., Stonewood failed to join an indispensable party. Stonewood argues that we should not consider this issue because Davis did not raise it in the trial court.

Generally, failure to join a party under Rule 19 should be raised in the responsive pleading or in a timely Rule 12(b) motion, but failure to join an indispensable party may be raised "as late as the trial." 3A Moore's Federal Practice p 19.05, p. 19-78 (1989). An appellate court may consider a question about joinder of an absent person even though it was not raised below. Id., p 19.19-1, p. 19-296.

"[I]ndependent of Rule 12(b)(7) and Rule 12(h)(2) both the trial court and the appellate court have the power and the duty to act sua sponte to protect the rights of the absent person, whether by ordering that he be added or, if this is not feasible, by dismissing the action. But a party's objection to the non-joinder of a person whose joinder is feasible will be treated as untimely if made after the pleadings are closed, since a defendant should not be allowed to postpone his objection until trial when joinder will inevitably delay resolution of the controversy."

Id., p 19.05, p. 19-81. "Upon a literal reading of Rule 19, a person cannot be an indispensable party unless he ... 'cannot be made a party.' " Id., p 19.05, p. 19-79.

There is nothing in the record indicating that Seven Seas, Inc., could not have been made a party. Seven Seas, Inc., therefore, was not an indispensable party and Davis' objection, raised for the first time on appeal, to Stonewood's failure to join Seven Seas, Inc., is untimely.

3. Lease

The trial court concluded that "[t]here existed a month-to-month tenancy at will between the parties from July 19, 1988, to November 30, 1988," and that "[t]he parties in good faith negotiated for a long-term lease but the parties did not ever come to an agreement on a long term lease." The rationale underlying the trial court's conclusions is not apparent in the court's findings of fact and conclusions of law.

Leases are subject to the general rules for interpreting contracts. South Forks Shopping Center, Inc. v. Dastmalchi, supra. "Under traditional common law, no contract was reached if the terms of the offer and the acceptance varied." Steiner v. Mobil Oil Corp., 20 Cal.3d 90, 141 Cal.Rptr. 157, 569 P.2d 751, 757 (1977). However, Section 9-03-21, N.D.C.C., ¹ provides:

"Acceptance must be absolute. Except as provided by section 41-02-14, an acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest and which will conclude the person accepting. A qualified acceptance is a new proposal."

Thus, under the statute, an acceptance must be absolute and unqualified or at least separable from those parts of the acceptance which are not absolute and unqualified. Thus, not every new proposal constitutes a qualified acceptance or counteroffer. An acceptance is not necessarily invalidated by proposing changes or additions. See Restatement (Second) of Contracts Sec. 61 (1981) and Comment a thereto:

"Sec. 61. Acceptance Which Requests Change of Terms

"An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to...