McKraut Holdings, LLC, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1388

McKraut Holdings, LLC,
Respondent,

vs.

Cynthia Tomenes, et al.,
Appellants.

Filed April 29, 2019
Affirmed
Rodenberg, Judge

McLeod County District Court
File No. 43-CV-18-1045

Scott L. Nokes, Glencoe Law Office, Glencoe, Minnesota (for respondent)

John G. Westrick, Savage Westrick, P.L.L.P., Bloomington, Minnesota (for appellants)

Considered and decided by Roden berg, Presiding Judge; Cleary, Chief Judge; and
Stauber, Judge.

U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants appeal from the district court’s judgment in favor of respondent in this
eviction action, arguing that the district court erroneously (1) declined to apply res judicata

 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

2
based on the earlier dismissal of a similar action, (2) conclud ed that respondent had not
waived its right to evict appellants by accepting rent, (3) found that an unauthorized person
lived in the leased premises for more than ten days, and (4) fo und endangerment or
substantial annoyance under Minn. Stat. § 327C.09, subd. 5 (2018). We affirm.
FACTS
Appellants signed a lease with r espondent McKraut Holdings LLC, t h e p a r k
landlord, to rent Lot 146 in the McDonald Mobile Home Park (par k) in Hutchinson
effective July 1, 2011. The le ase prohibits assigning, sublett ing, or renting the premises
without the prior written consent of the park, and further provides that any adult who stays
at a park unit for more than 10 nights in any 30-day period must apply to become a resident.
The lease also provides for eviction if a resident does “something in the mobile home park
which seriously annoys or endangers the health or safety of other park residents.”
On February 21, 2018, Officer W illers of the Hutchinson Police Department was
informed of an active felony wa rrant for F.W. Officer Willers searched the state motor-
vehicle database, which showed F.W.’s address to be Lot 146 at the street address of the
park. The database also showed a 2003 red Ford Taurus, license plate 06***A, registered
to F.W. at that same address. Officer Willers drove to the par k and observed a red Ford
Taurus with license plate 06***A outside the mobile home at Lot 146. Officer Willers
called for assistance in serving the warrant. Two officers kno cked on the door and asked
the woman who answered the door if F.W. was home. The woman sa id “yes” and called
for F.W., who was there. F.W. was then arrested.

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C.R., the park’s property manager, noticed police at the park on February 21.
Consistent with her normal routine, she waited a few days to contact the police department
to obtain a report concerning their presence at the park. Afte r viewing the police report
and consulting with neighbors, a ppellants, and the park owner, C.R. decided to evict
appellants based on both the crime-free addendum in the lease a nd appellants having
allowed someone who had not been approved by the park to live i n their home for more
than ten days. C.R. later testified that one of the appellants expressed remorse for having
allowed F.W. to live with them, while the other said that F.W. had only been there for nine
days.
On March 6, 2018, respondent pr ovided appellants with notice t o vacate. This
allowed appellants 60 days to vacate the property. Respondent then accepted full rent
payments from appellants for March, April, and May 2018. Respondent filed a complaint
for eviction on April 6, 2018. T he district court granted appellants’ motion for summary
judgment, concluding that responde nt’s acceptance of the rental p a y m e n t s w a i v e d t h e
notice to vacate. The district c ourt made “no fi ndings whether [appellants] violated the
lease.”
Respondent provided appellants w ith another notice to vacate o n May 18, 2018,
citing the arrest of F.W. at their leased property and appellants having allowed F.W. to live
in their home for more than ten days without park approval as reasons for the notice. The
notice to vacate provided appellant s with 30 days to vacate pur suant to Minn. Stat.
§ 327C.09, subd. 5 (2018). Appellants did not vacate. Respondent filed a second eviction
action on June 27, 2018. Appellant s asserted the defenses of w aiver by reason of

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respondent’s acceptance of rent checks and res judicata. The d istrict court denied
appellants’ motion for summary judgment. The case was tried to the court.
The district court determined a fter trial that respondent met its burden of proof that
appellants substantially endangered other park residents when they allowed F.W. to stay at
their property. It also found that, by failing to follow paragraph 13 of the lease, appellants
placed other park residents in significant danger.1 It also determined that respondents were
not estopped or precluded from ev icting appellants because, in the earlier action,
respondents had not been provided a full and fair opportunity to litigate the issue of whether
appellants breached the lease. The district court concluded th at appellants’ breach of the
lease endangered other residents and park personnel, thereby sa tisfying Minn. Stat.
§ 327C.09, subd. 5.2 It entered judgment in favor of respondents.
This appeal followed.

1 Paragraph 13 of the lease provides:

Resident shall not assign this Lease, sublet or rent the Premises
or any portion thereof or trans fer possessions or occupancy
thereof to any other person without the prior written consent of
Park. Written consent will only be considered after completing
the application process. The resident does not have to inform
t h e P a r k o f o v e r n i g h t v i s i t o r s w h o s t a y l e s s t h a n t e n ( 1 0 )
consecutive nights or ten (10) nights in any thirty (30) day
period. But if any adult comes to live or stay longer than stated
above with the resident after this lease is signed, or if any minor
children of the resident become an adult (turn 18), the resident
must have the adult apply to become a resident and to sign this
lease.

2 A resident of a manufactured home lot may be evicted where the resident “acts in the park
in a manner which endangers othe r residents or park personnel . . . and has received 30
days’ written notice to vacate.” Minn. Stat. § 327C.09, subd. 5.

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D E C I S I O N
Appellants argue that the district court erred when it found th at the issue of waiver
was not barred by res judicata. Appellate courts review the ap plication of res judicata de
novo. Rucker v. Schmidt, 794 N.W.2d 114, 117 (Minn. 2011). Res judicata applies as an
absolute bar to a subsequent claim when the earlier claim: (1) involved the same set of
factual circumstances; (2) involved the same parties or their p rivies; (3) had a final
judgment on the merits; and (4) provided the party to be estopped a full and fair opportunity
to litigate the matter. Id. All four elements must be met for res judicata to apply. Id.
Appellants cite Wurdemann v. Hjelm, for the proposition that the judgment in the
first action bars a second action where the factual basis is th e same. 102 N.W.2d 811
(Minn. 1960), cert. denied , 3 6 4 U . S . 8 9 4 ( 1 9 6 0 ) . I n Wurdemann, the supreme court
explained that the determination in the first action that the lease had been breached and that
the breaches had not been waived by the lessor were conclusive, and any challenge to those
determinations was required to have been made on appeal. Id. at 820. The supreme court
held that the “judgment in favor of the landlord in an unlawful detainer action is conclusive
between the parties as to the existence and validity of the lease, the occupation of the tenant,
and the facts alleged in the complaint which forms the basis of the action.” Id. at 813.
Here, the earlier claim arose from the same set of factual circumstances and involves
identical parties. But the district court in the first action made no final judgment on the
merits. The district court expressly refrained from making fin dings concerning whether
the lease was breached. The district court concluded only that respondent waived the notice
to vacate under Minn. Stat. § 327C.11, subd. 2 (2018), by accepting the rental payment for

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the month of May 2018. Accordin gly, the district court in that action never resolved
questions concerning whether appellants breached the lease or w hether other statutory
g r o u n d s f o r e v i c t i o n h a d b e e n s a t i s f i e d . W e s e e n o e r r o r i n t he district court’s
determination that this action is not barred by res judicata because the earlier dismissal on
procedural grounds did not amount to a final judgment on the me rits after a full and fair
opportunity to litigate.
Appellants also argue that the district court erred in determin ing that respondent’s
acceptance of rent checks only waived the initial notice to vacate.
As a general rule, a landlord waives the right to evict for breach of lease by accepting
rent with knowledge of the breach. See Westminster Corp. v. Anderson, 536 N.W.2d 340,
341 (Minn. App. 1995) (stating th at the general rule in Minneso ta is that a landlord who
subsequently accepts rent from a tenant waives his right to rely on any known prior material
breach of the lease as a basis for an unlawful detainer action against the tenant), review
denied (Minn. Oct. 27, 1995). A lessor’s acceptance of rent operates as an election to
continue the lease. Priordale Mall Inv’rs v. Farrington, 411 N.W.2d 582, 584 (Minn. App.
1987). But subsequent lease vio lations are not waived, and a l essor may bring an action
based on continuing breaches. Id. An exception to this general rule is where an express
clause in the lease provides that acceptance of rent does not c onstitute a waiver of the
existing or any preceding breach. Id. at 585. And even in the absence of such a clause, the
lessor must by acceptance of the rent manifest some intent to w aive the notice of
termination. Minneapolis Cmty. Dev. Agency v. Powell, 352 N.W.2d 532, 534 (Minn. App.
1984) (explaining that it would be inequitable to hold that onc e a tenant has breached a

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lease provision and the lessor has served a termination notice, the lessor must act quickly
to evict her or forever lose its right to do so).
In Priordale, the lessor accepted rent after k nowing of the prior breaches and
knowing that one of the lessee’s defenses to the eviction action was waiver; we determined
that the lessor waived its right to assert past breaches of the lease. 411 N.W.2d at 585. In
Powell, we held that the lessor did not waive its right to collect re nt when the lessor
accepted rent for eight months fo llowing the lessee’s receipt o f a termination notice, and
when the lessor accepted rent even after it commenced the eviction action. 352 N.W.2d at
535.
Appellants cite Lea v. Pieper to argue that respondent’s acceptance of rent waived
the alleged violation. 345 N.W.2d 267 (Minn. App. 1984), review denied (Minn. June 12,
1984). Lea determined that the lessor coul d not terminate the lease under Minn. Stat.
§ 327C.09, subd. 5, because the l essees did not receive 30 days ’ notice to vacate. Id. at
271. It also concluded that the lessor waived a June 16 notice to vacate by accepting rent
on July 1, because the expiration of the notice to vacate was J uly 19. Id. We addressed
the lessor’s argument that it would be inconvenient for a park owner to prorate rent where
a notice to vacate specified a dat e within a rental period, fin ding it “unpersuasive in this
day of inexpensive electronic calculators.” Id. We held only that the “notice to vacate”
was waived by accepting rent for a time period after the notice to vacate expired. Id.
Here, C.R. testified that she accepted appellants’ checks for March, April, and May.
The first notice was given on March 6, and provided 60 days to vacate, which was May 5.
Respondent could accept payment for the period of time in which appellants continued to

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occupy the premises before term ination of the lease, but accept ing payment for all of
May—not prorated to May 5—amounted to waiver of the notice given on March 6. Id.
“Acceptance of rent for a peri od after the expiration of a final notice to quit waives
that notice unless the parties agree in wr iting after service of the notic e that the notice
continues in effect.” Minn. Stat. § 327C.11, subd. 2 (emphasis added); see also Arcade
Inv. Co. v. Gieriet, 109 N.W. 250, 250 (Minn. 1906) (explaining that if a landlord provides
a second notice, he waives the right to proceed under the first notice). Accordingly,
respondent’s acceptance of May rent waived the notice, but did not necessarily waive the
underlying breach.
Appellants argue that the waiver rule’s purpose is to instill a repose in the tenant by
reaffirming the lease between th e parties through the landlord’ s acceptance of rent. The
district court implicitly found that respondent did not intend to waive the breach by
accepting rent payments after respondent had served a notice to vacate and while an
eviction action was still pending. The record supports the fin ding that respondent did not
waive the underlying breach by accepting May rent.
Appellants argue that the district court erred by finding that F.W. lived at appellants’
home for more than 10 days in a 30-day period. We review a dis trict court’s factual
findings for clear error. Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn.
2013). A finding of fact is clearly erroneous when we are left with the definite and firm
conviction that a mistake has been made. Id. “If there is reasonable evidence to support
the [district] court’s findings of fact, a reviewing court should not disturb those findings.”
Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).

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There is ample evidence in the record to support the district court’s finding that F.W.
was living at appellants’ home and had been there for more than ten days. F.W. listed
appellants’ address as his home address, registered his car at that address, and provided
that address to his probation officer. One of the appellants replied in the affirmative when
officers asked if F.W. was “home,” on February 21, 2018. And one of appellants expressed
remorse to C.R. about having allowed F.W. to live at Lot 146. Although there is contrary
evidence in the record, the district court believed respondent’s witnesses on these disputed
fact questions. Its finding that F.W. was living at appellant’s home is not clearly erroneous.
Appellants also argue that, even if the district court’s finding that appellant lived at
Lot 146 for more than 10 days is not erroneous, they were entit led to a 30-day notice to
cure. If respondent had sought to evict appellants exclusively on the basis of violating the
lease or a park rule, appellant s would be entitled to 30 days t o comply with the rule after
receiving written notice of the alleged noncompliance. Minn. S tat. § 327C.09, subd. 4
(2018). But notice to cure is not required to evict a resident who endangers other park
residents or park personnel unde r Minn. Stat. § 327C.09, subd. 5, the statutory provision
which provided grounds for evic tion here. Actions endangering other park residents,
causing a substantial annoyance, or causing substantial damage to the park premises are
treated differently than actions violating what may be more trivial rules found in a standard
lease.
Appellants argue that the distri ct court abused its discretion by determining that
F.W. living with appellants endangered other park residents. “W hen reviewing mixed
questions of law and fact, we correct erroneous applications of law, but accord the district

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court discretion in its ultimate conclusions and review such conclusions under an abuse of
discretion standard.” In re Estate of Sullivan , 868 N.W.2d 750, 754 (Minn. App. 2015)
(quotation omitted).
A park owner may recover possession of land upon which a manufactured home is
situated only for a reason specified in Minnesota Statutes sect ions 327C.09 or 327C.095
(2018). As discussed, a resident of a mobile home park may be evicted if the resident “acts
in the park in a manner which endangers other residents or park personnel, causes
substantial damage to the park premises or substantially annoys other residents, and has
received 30 days’ written notice to vacate.” Minn. Stat. § 327C.09, subd. 5. “A park owner
seeking to evict pursuant to this subdivision need not produce evidence of a criminal
conviction, even if the alleged misconduct constitutes a criminal offense.” Id.
There is evidence in the record to fairly support the district court’s determination
that appellants’ allowing F.W. to live at their residence endangered others at the park. F.W.
was on warrant status for charges of felony third-degree assaul t, felony domestic assault
by strangulation, and domestic assault. The district court found that F.W. was arrested and
subsequently convicted of felony assault by strangulation. The district court found as fact
that F.W. would not be allowed to live in the park based on sta ndards in the applications
process (no felonies within three years) because of respondent’ s desire to maintain a safe
mobile home park for the benefit of its residents. The distric t court found endangerment,
the record supports that finding, and appellants were not entitled to a 30-day notice to cure

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on these facts. The district court did not abuse its discretion in determining that appellants
endangered other residents.3
Affirmed.

3 Appellants cite an Alaska decision, and two unpublished cases of this court in support of
their assertion that allowing a dangerous person on the premise s is not sufficient to
constitute endangerment of other residents. Not only are the c ases cited by appellants
distinguishable, the unpublished opinions are not binding. Minn. Stat. § 480A.08, subd. 3
(2018). Appellants have not met their burden of demonstrating error on appeal. See Waters
v. Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944) (“[O]n appeal error is never presumed.
It must be made to appear affirmatively before there can be rev ersal . . . [and] the burden
of showing error rests upon the one who relies upon it.”).