Tornabeni v. Creech
| Decision Date | 28 August 2018 |
| Docket Number | No. 20180016,20180016 |
| Citation | 916 N.W.2d 772 |
| Parties | Louis TORNABENI, Plaintiff and Appellee v. Brittany CREECH, Defendant and Appellant and any and all other occupants of 224 1st Ave W, Ray, ND 58849, Defendants |
| Court | North Dakota Supreme Court |
Kaitlin A. DeCrescente (argued) and H. Malcolm Pippin (on brief), Williston, ND, for plaintiff and appellee.
Shelby Larson (argued), Minot, ND, for defendant and appellant.
[¶ 1] Brittany Creech appeals a judgment evicting her from property in Williams County owned by Louis Tornabeni. Creech asserts Tornabeni’s notice of intent to evict was deficient, the summary eviction proceeding violated her right to due process, the district court abused its discretion in excluding certain exhibits, the court’s findings of fact were clearly erroneous, and the delivery of the deed was defective and prevented Tornabeni from obtaining ownership of the property. We affirm.
[¶ 2] On April 1, 2016, Creech executed a deed conveying the subject property to Tornabeni. Tornabeni recorded the deed with the Williams County Recorder on June 2, 2016. At the time of the conveyance and subsequent to the conveyance to Tornabeni, Creech resided at the property without a lease and without any payment obligation.
[¶ 3] On October 6, 2017, Tornabeni served Creech with a notice of intent to evict as required by N.D.C.C. § 47-32-02. The notice stated the intended eviction was the result of Creech’s "failure to pay rent and failure to vacate possession of the premises after request by the property owner."
[¶ 4] Creech failed to vacate the property as requested in the notice of intent to evict. On October 18, 2017, Tornabeni served a summons and complaint to forcibly remove Creech from the property. The district court scheduled a November 1, 2017 eviction hearing, satisfying the requirement under N.D.C.C. § 47-32-02 that a hearing be set no fewer than three days or more than 15 days after service of the summons.
[¶ 5] Both parties appeared at the November 1, 2017 hearing. After approximately an hour and five minutes, the district court continued the hearing until November 6, 2017. The primary point of contention between the parties during the hearing was Creech’s assertion her signature on the April 1, 2016 deed was forged and Tornabeni was not the owner of the property.
[¶ 6] Creech attempted to introduce as an exhibit her vehicle registration cards during the cross-examination of Tornabeni’s witness, Brenon Andreasen. Following a foundation objection by Tornabeni’s counsel, the district court provided Creech the following guidance:
[Y]ou’ll have to lay a bit of foundation here before I can rule on whether these should be admitted. What are these purport[ed] to show? And you’re going to have to ask questions of this witness if you believe he has some kind of knowledge of this.
[¶ 7] After additional cross-examination of Andreasen by Creech, the district court provided additional instruction to Creech: Creech did not attempt to reintroduce the exhibit.
[¶ 8] Creech also sought to introduce an eviction notice from earlier proceedings in which Creech sought to evict Tornabeni from the property when Creech was the owner. She offered the notice during her cross-examination of Andreasen. Tornabeni objected, asserting it was not relevant to the present proceedings and that Andreasen could not provide the required foundation for the exhibit. The district court again advised Creech she needed to lay the foundation for the document through Andreasen as a witness. The court suggested Creech may need to lay the foundation through her own testimony. Creech never attempted to re-introduce the eviction notice.
[¶ 9] In response to Creech’s assertion that she owned the property because Tornabeni forged her signature on the April 1, 2016 deed, Tornabeni called as a witness James Duffy, the notary identified on the deed. Duffy testified he would not have applied his notary stamp or signed the deed if it was not signed by both parties in front of him. Andreasen also testified he saw Creech sign the deed. Terry Bendixson, Williams County Chief Deputy Recorder, testified that before recording the deed she reviewed it to determine whether the signatures on the document were original.
[¶ 10] The district court found a preponderance of the evidence showed the April 1, 2016 deed was valid and effective. The court concluded Tornabeni owned the property and entered a judgment evicting Creech from the property.
[¶ 11] Creech argues the notice of intent to evict did not comply with N.D.C.C. § 47-32-02 because it incorrectly stated that the reason for the eviction was failure to make rental payments. She asserts she was not under an obligation to provide rental payments.
[¶ 12] The relevant portion of N.D.C.C. § 47-32-02 reads as follows:
In all cases arising under subsections 4, 5, 6, and 8 of section 47-32-01, three days’ written notice of intention to evict must be given to the lessee, subtenant, or party in possession, before proceedings can be instituted.
[¶ 13] Neither party briefed or challenged whether or not this case involves a situation "arising under subsections 4, 5, 6, and 8 of section 47-32-01" and required a notice of intention to evict to be served on Creech. We also note N.D.C.C. § 47-32-02 does not expressly require the reason for the eviction to be stated in the notice.
[¶ 14] Regardless of whether or not the notice was required here or needs to include the reason for the eviction, the notice informed Creech she was required to vacate the premises because of her "failure to vacate possession of the premises after request by the property owner." Creech was asked to vacate the premises and was adequately informed of the reason for the intended eviction. The eviction notice satisfied the requirements of N.D.C.C. § 47-32-02.
[¶ 15] Creech contends the summary eviction proceedings provided by N.D.C.C. ch. 47-32 violated her right to due process. Specifically, Creech asserts a dispute over the title to property is complex, requires an opportunity for discovery, and the requirement that the hearing be held no fewer than three days or more than 15 days after service of the summons does not provide sufficient time for preparation.
[¶ 16] This Court has noted that "[i]t is generally recognized that an eviction action frequently requires resolution of questions of title." United Bank of Bismarck v. Trout , 480 N.W.2d 742, 745 (N.D. 1992). We have also recognized:
The district court has broad discretion in controlling the time allotted for a hearing. See Mairs v. Mairs , 2014 ND 132, ¶ 10, 847 N.W.2d 785 ; Wahl v. Northern Improvement Co. , 2011 ND 146, ¶ 6, 800 N.W.2d 700 ; see also Manning v. Manning , 2006 ND 67, ¶ 30, 711 N.W.2d 149 (); Hartleib v. Simes , 2009 ND 205, ¶ 15, 776 N.W.2d 217 (). A majority of this Court has also held the scope of a hearing often depends on whether the procedure is an action or a special proceeding. See, e.g., Peters-Riemers v. Riemers , 2001 ND 62, ¶ 13, 624 N.W.2d 83 ; Sandbeck v. Rockwell , 524 N.W.2d 846, 848-49 (N.D. 1994).
Rath v. Rath , 2016 ND 46, ¶ 20, 876 N.W.2d 474. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner; its decision is not the product of a rational mental process leading to a reasoned decision; or it misinterprets or misapplies the law. Estate of Albrecht , 2018 ND 67, ¶ 23, 908 N.W.2d 135.
[¶ 17] The district court recognized that determination of whether Creech was required to vacate the property also required determination of whether Creech’s signature on the April 1, 2016 deed had been forged. The court continued the hearing to allow the parties to present more evidence. An eviction is a special proceeding governed by N.D.C.C. ch. 47-32. Under these circumstances, we conclude the district court did not abuse its discretion in conducting the hearing within the time proscribed by N.D.C.C. ch. 47-32.
[¶ 18] Creech argues the district court improperly excluded from evidence the vehicle registration cards and the notice of the intent to evict from the earlier eviction proceeding she initiated to remove Tornabeni from the property. The court denied the admission of the exhibits, noting Creech had not provided sufficient foundation.
[¶ 19] With regard to the exclusion of evidence on foundational grounds, we have held:
Piatz v. Austin Mut. Ins. Co. , 2002 ND 115, ¶ 17, 646 N.W.2d 681.
[¶ 20] Here, the district court did not abuse its discretion in excluding the exhibits. Creech did not provide sufficient foundation for the documents and has not shown exclusion of the exhibits affected her substantial rights. The court explained to...
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