Bradley J. Pass, et al., Respondents,

This opinion will be unpublished and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
A18-1555

Bradley J. Pass, et al.,
Respondents,

vs.

Craig T. Seifert, et al.,
Appellants.

Filed July 1, 2019
Affirmed
Worke, Judge
Dissenting, Jesson, Judge

Hennepin County District Court
File No. 27-CV-HC-18-1943

Christopher T. Kalla, Douglass E. Turner, Hanbery & Turner, P.A., Minneapolis,
Minnesota (for respondents)

Luke Grundman, Mid-Minnesota Legal Aid, Minneapolis, Minnesota (for appellants)

Lawrence McDonough, Dorsey & Whitney LLP, Minneapolis, Minnesota; and

Samuel Spaid, HOME Line, Minneapolis, Minnesota (for amicus curiae HOME Line)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and Florey ,
Judge.
2
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellants challenge an eviction judgment, arguing that the district court erred by
making a trial on the merits contingent on appellants depositing rent into court. We affirm.
FACTS
On May 11, 2018, respondents-landlords Bradley J. Pass and Carol A. Pass filed an
eviction complaint against appellants-tenants Craig T. Seifert and Tracy R. Bradley. 1
Landlords claimed:
Tenants are still in possession of the . . . premises and
have failed to pay rent for the month(s) of January – December
2015 in the amount of $625/mo nth for a total owing of
$6,380.00; January – December 2016 in the amount of
$675/month for a total owing of $8,100.00; January – April
2018 in the amount of $700/month for a total owing of $2,155
plus court costs in the amount of $369.00 for a total due of
$17,004.00.

Tenants have failed to vacate the property after [they]
were given notice to vacate. Landlord[s] gave notice on
March 28, 2018 for a vacate date of April 30, 2018.

On May 22, 2018, tenants filed an answer and moved for dismissal or summary judgment,
claiming that they did not owe rent and that their account was current through April 2018.
On May 23, 2018, a referee held an eviction hearing. Although landlords claimed
that tenants owed rent from 2015, 2016, and 2018, the referee narrowed the focus to 2018

1 Also known as Traci R. Bradley.
3
and asked for proof that rent was paid. Tenants’ counsel provided the referee with “a letter
that says how much was due and . . . receipts.”2 The referee stated:
[Y]ou got a receipt here, $800 – 1/6/18, $800; 1/30/18, $200;
1/29/18, back rent.
So back rent . . . . There’s one for $800. It doesn’t say
back rent. It just says January 6, ’18. It’s got: Account, 855,
payment, 800, due, balance due, 55.
And that’s January. It looks like the other payments are
for back rent.

The referee concluded: “I think [landlords] have a right to ask for rent through April. I
would order deposit of that rent if [tenants] want to have a trial.” The following exchange
occurred between the referee and tenants’ counsel:
Counsel: Your Honor, with respect, that rent has already
been paid.
Referee: What’s the proof? Where’s the proof?
Counsel: Those receipts --
Referee: No, that’s not --
Counsel: -- show a positive balance that covers all the way
up and through the month of April. In fact,
there’s a credit for April.
Referee: This is January 29th, January 30th, January 6th.
Counsel: The amount of money there, Your Honor, covers
all the way through --
Referee: No. It says back rent.
Counsel: It states that, Your Honor, but that’s not the truth.
Referee: It says back rent.

The referee stated:
Unless you got other evidence . . . it’s clear to me that
there’s rent owed for February, March, and April, because I
have no receipts showing that there was rent paid for [those
months]. If you got a receipt showing you paid rent for [those

2 The receipts are not in the record. The description of the receipts is based on the referee’s
statements reflected in the record.
4
months], I’ll give you credit for it. I asked you for what you
had; that’s what you gave me.

Tenants’ counsel stated that if there was a posting order, tenants would file “an
emergency judge review of the posting order.” The referee responded:
[W]e have no proof you paid February, March, and April rent.
[Tenants] want to stay in the property, because [they’re] saying
that [they] didn’t get notice – if [they] want to stay in the
property, [they] got to pay the rent that’s owed. Give me proof.
Give me a receipt that [they] paid [ the] rent. Do they have a
receipt? This is not doing it. [The receipts provided] [do not]
do it for me.

Landlords agreed to waive their right to a hearing within the statutory timeframe to
work with tenants on a settlement. See Minn. Stat. § 504B.341(a) (2018). The parties
agreed to a June 4 posting date and a June 8 trial date. Because the referee required a
posting, tenants indicated that they might amend their answer to include a Fritz defense.
See Fritz v. Warthen, 213 N.W.2d 339 (Minn. 1973).
On May 23, 2018, the referee filed findings of fact, conclusions of law, and order
for judgment. The referee noted that the issues for the June 8 trial were: “Notice to quit
[and] rent owed prior to 4/30/18 [and] Fritz defense.” The referee ordered tenants to serve
and file an amended answer to assert a Fritz defense, and ordered that tenants “shall pay
into [c]ourt the rent of $2,155 . . . on or before 11 a.m. on June 4, 2018 . . . or the [c]ourt
will issue a Writ of Recovery of Premises and Order to Vacate.”
Tenants did not deposit $2,155 by June 4, 2018. On June 5, 2018, tenants filed a
request for judicial review, requesting that the district court determine whether the referee
5
erred by making a trial contingent on the deposit of rent. On June 6, 2018, the referee
canceled the trial because tenants failed to deposit the required security.
On August 2, 2018, the district court held a hearing on tenants’ request for review.
Tenants argued that it was unconstitutional for the referee to make a trial contingent on the
deposit of rent. The district court noted that the referee “effectively made a finding that
the rent wasn’t paid.” Tenants’ counsel replied:
If there had been a tr ial and the referee said . . . . I
believe what it says on those rent receipts about this is for back
rent and not for forward rent. I’m making that conclusion after
evaluating the evidence.
I think we’d be in tough shape. I think you would have
every right to defer to the referee under that circumstance.
But that’s exactly the point: We didn’t get that
opportunity to have that trial. And I think the evidence that
[tenants] would have been able to present at trial . . . will be
compelling.

Tenants’ counsel also noted that tenants elected not to assert a Fritz defense.
On September 18, 2018, the district court affirmed the referee’s decision. The
district court found that the referee ordered tenants to deposit the disputed rent if they
wanted a trial. The district court also found that tenants claimed a Fritz defense. The
district court concluded that the referee did not have authority under rule 608 to require the
deposit of rent because the rule authorizes such action when a tenant withholds rent in
reliance on a defense, not in the present case when there is a dispute whether rent has been
paid. See Minn. R. Gen. Prac. 608. The district court determined, however, that because
tenants raised a Fritz defense, the referee was required to order posting of rent. The district
court also determined that tenants were not deprived of due process because they filed an
6
answer, appeared at the preliminary hearing, and presented arguments through their
attorney. This appeal followed.
D E C I S I O N
Tenants argue that the district court erred by affirming the referee’s eviction-action
decision. An eviction action “merely determines the right to present possession.”
Dahlberg v. Young, 42 N.W.2d 570, 576 (Minn. 1950). The proceedings are summary in
nature and limited in scope. Amresco Residential Mortg. Corp. v. Stange, 631 N. W.2d
444, 445 (Minn. App. 2001). We review a district court’s findings of fact for clear error.
Cimarron Vill. v. Washington, 659 N.W.2d 811, 817 (Minn. App. 2003). A factual finding
is clearly erroneous if there is a “clear demonstration that it is without substantial
evidentiary support or that it was induced by an erroneous view of the law.” Schuett Inv.
Co. v. Anderson, 386 N.W.2d 249, 252 (Minn. App. 1986) (quotation omitted). This court
applies a de novo standard of review to the district court’s conclusions of law.
W. Insulation Servs. v. Cent. Nat’l Ins. Co. of Omaha, 460 N.W.2d 355, 357 (Mi nn. App.
1990).
Tenants assert that this court must determine whether the district court lawfully
ordered disputed rent deposited into court as a condition for a trial on the merits. Tenants
present two arguments: (1) Fritz, the “authority relied upon by the district court . . . states
only that tenants may be ordered to pay undisputed rent into court,” and (2) the district
court’s order “violate[s] constitutional guarantees . . . of equal access to justice.” We agree,
as do landlords, that Fritz does not ap ply here, but we disagree that the district court
violated tenants’ constitutional rights.
7
In Fritz, unlawful-detainer actions were commenced on the grounds of nonpayment
of rent. 213 N.W.2d at 340. The tenants alleged that no rent was due because the landlord
violated statutory covenants of habitability. Id. The supreme court held that the implied
covenants of habitability and payment of rent are mutually dependent. Id. at 341.
Therefore, a tenant could assert a breach of the covenants of habitability as a defense to the
landlord’s unlawful-detainer action for nonpayment of rent. Id. at 342. Recognizing that
problems could arise, however, if a landlord were deprived of rent pending a final
determination, the supreme court stated that “once the [district] court has determined that
a fact question exists as to the breach of the covenants of habitability,” the court will order
the tenant to deposit into the court the rent withheld from the landlord. Id. at 343.
Here, Fritz does not apply. First, although tenants suggested that they might raise a
Fritz defense, this suggestion was made after the referee required the deposit of the rent.
Additionally, tenants did not amend their answer to include a Fritz defense and tenants’
counsel notified the district court at the review hearing that tenants elected not to assert a
Fritz defense. And, as tenants argue, they did not claim to withhold rent due to a breach
of the covenants of habitability; rather, tenants claimed that they paid the rent.
Finally, the district court determined that rule 608 did not apply because it applies
when a tenant withholds rent in reliance on a def ense. See Minn. R. Gen. Prac. 608. But
the district court determined that the referee was required to order the deposit of rent under
Fritz, although Fritz also states that it applies when a tenant asserts that rent was withheld
because the landlord breached the covenants of habitability (in reliance on a defense). See
Ellis v. Doe, 915 N.W.2d 24, 27 (Minn. App. 2018) (“Minnesota caselaw and statutes have
8
recognized a limited number of defenses to an eviction action that a tenant may assert, one
of which is breach of the statutory covenants of habitability that the supreme court first
recognized in Fritz . . . .”), aff’d, 924 N.W.2d 258 (Minn. Mar. 6, 2019). The district court
misapplied Fritz when the facts here show that tenants did not withhold rent in reliance on
a defense, but rather claimed to have paid the rent.
Landlords assert, however, that Fritz is irrelevant because the evidence supports
summary judgment in their favor. Landlords claim that the referee was not required to give
tenants the option of having a trial. Because the record demonstrates that the referee
appropriately followed the procedure in this summary proceeding, we agree with landlords
and see no infringement on tenants’ constitutional rights.
For the process afforded to meet due-process requirements and be constitutionally
sufficient, it must provide an individual with notice and a meaningful opportunity to be
heard. Mathews v. Eldridge, 424 U.S. 319, 333, 348, 96 S. Ct. 893, 902, 909 (1976). Due
process is flexible, calling for procedural protections as a particular situation demands. Id.
at 334, 96 S. Ct. at 902.
“To bring an eviction action, [landlords] shall file a complaint with the court . . .
stating the facts which authorize the recovery of possession, and asking for recovery
thereof.” Minn. Stat. § 504B.321, subd. 1(a) (2018). The district court will issue a
summons, commanding tenants to appear before the court on a particular date. Id., subd.
1(c). “At the court appearance specified in the summons, [tenants] may answer the
complaint, and the court shall hear and decide the action, unless it grants a continuance of
the trial as provided in section 504B.341.” Minn. Stat. § 504B.335(a) (2018). Under
9
section 504B.341, it is within a district court’s discretion to grant a continuance for no more
than six days unless the parties agree to longer. Minn. Stat. § 504B.341(a).
Here, landlords filed their complaint on May 11, 2018. The eviction summons and
complaint were served on May 14, 2018. The summons directed tenants to appear o n
May 23, 2018, and stated that on this day “the judicial officer will decide whether you will
have to move or whether you can continue to stay in your home.” The summons notified
tenants of their right “to come to court and tell [their] side of the case.”3 On May 22, 2018,
tenants filed their answer and motion for dismissal or summary judgment, claiming that
they did not “owe the rent alleged.”
Under the relevant statutes, the district court was to decide the action at the May 23
hearing, and tenants were aware that at this hearing, they would have to support their
assertion that they did not owe rent in order to have their motion for dismissal or summary
judgment granted. In other words, tenants should have been prepared to have the matter
decided on the merits at the May 23 hearing without any expectation of a future trial date.
Tenants appeared at the May 23 hearing, with counsel, and they provided receipts
that purported to show that they did not owe the rent. 4 The referee stated that other than

3 The Minnesota Judicial Branch website instructs tenants to prepare for court by reading
the summons and complaint carefully, and writing down what they want to tell the court.
It also informs tenants on what to bring to court, including: “[r]eceipts or canceled check[s]
to prove payment,” and witnesses and other documents to support their case. See generally,
Hennepin Housing Court, http://www.mncourts.gov/Find- Courts/Hennepin/Housing-
Court.aspx.
4 The dissent seems to indicate that the receipts upon which the referee relied were
insufficient and required explanation with live testimony. However, tenants provided the
receipts and were on notice that the referee would decide the action at the May 23 hearing;
thus, presumably tenants relied on the receipts to support their case. The referee found that
10
one receipt, the receipts were for “back rent.” The referee stated: “Unless you got other
evidence . . . it’s clear to me that there’s rent owed f rom February, March, and April . . . .
I asked you for what you had; that’s what you gave me.”
The referee did not believe that a genuine fact issue existed for trial. The referee
found that tenants owed the rent when it stated that it is clear that rent was owed. See Minn.
R. Civ. P. 52.01 (providing that it is sufficient for findings of fact to be stated orally). Thus,
the referee decided that, because tenants failed to offer evidence to show that they paid the
rent owed, landlords were entitled to a writ of recovery. But within the discretion afforded,
the referee scheduled a trial. See Minn. Stat. § 504B.335(a) (providing that the referee
must hear and decide the case at the court appear ance specified in the summons “unless it
grants a continuance of the trial”).
The referee’s May 23 order shows that the referee decided the case at the May 23
hearing, but chose to not make that decision final in the event tenants posted the rent. The
order states that tenants “shall pay into [c] ourt the rent of $2,155 . . . or the [c] ourt will
issue a Writ of Recovery of Premises and Order to Vacate.” Tenants were not denied due
process because they received notice of the complaint, received notice that the matter
would be decided on May 23, and were given an opportunity to, and did in fact, present
evidence to support their position at the May 23 hearing.
Not only were tenants afforded a meaningful opportunity to be heard at the May 23
hearing, they were afforded that opportunity again at the August 2 judge-review hearing.

the receipts were for back rent and tenants did not provide any other proof to support their
claim when prodded by the referee.
11
Tenants first appeared on May 23, and had until June 4 to deposit the rent. If tenants had
evidence of payment, they could have presented it to the referee during this timeframe and,
if convincing evidence, the referee likely would not have required the deposit of the rent.
But tenants did not offer any evidence or proof during this period.
The judge-review hearing was held on August 2, 2018. Tenants’ counsel conceded
that if the referee, after a trial, agreed with landlords and “believe[d] what it says on those
rent receipts” regarding back rent, tenants would “be in tough shape.” Tenants claimed,
however, that they did not have an opportunity to provide evidence and that the evidence
they had for trial “will be compelling.” Tenants did not indicate, however, what evidence
outside the “rent receipts” existed; counsel referred specifically to the receipts as the
evidence the referee would review at trial. T rial was scheduled for June 8, and c ounsel
made these statements on August 2; if the evidence for the trial scheduled in June was
“compelling,” tenants had an opportunity to present it between May 23 and June 4, but did
not do so. Tenants cannot show that they were prejudiced by the posting requirement
because there is no indication that evidence of payment existed.
The referee appropriately followed the legal requirements of an eviction proceeding.
Tenants received notice by way of the summons that directed tenants to be prepared to
argue their case at the first hearing date. The law does not mandate an additional trial, and
contemplates that the action will be decided at the court appearance specified in the
summons. Further, the referee has inherent authority to manage the case calendar.
Accordingly, the referee appropriately rendered a decision, but scheduled a trial in the
event tenants deposited the disputed rent before the decision became final.
12
Finally, tenants argue that by making the trial contingent on the deposit of rent, the
district court violated their constitutional guarantee “to obtain justice freely and without
purchase.” Tenants cite Weller v. City of St. Paul, which stated that a law requiring
payment of unpaid taxes in order to bring an action to vacate and set aside an illegal tax or
special assessment conflicted with Minn. Const. art. 1, § 8, which provides that every
person “ought to obtain justice freely and without purchase.” 5 Minn. 95, 101, 5 Gil. 70,
75-76 (1860). But the law, here, provides tenants with an opportunity to answer the
complaint and appear at a hearing. Scheduling a trial after the initial hearing is
discretionary with the district court. The eviction statute does not prevent tenants from
obtaining justice without purchase.
Additionally, the referee fairly required deposit of rent that was narrowed to 2018.
The referee required only $2,155 deposited, despite landlords’ claim that tenants owed
approximately $17,000. The requirement of posting the rent did not prevent tenants from
obtaining justice without purchase.
Affirmed.

D-1

JESSON, Judge (dissenting)
While I agree with the majority that the district court misapplied Fritz v. Warthen ,
213 N.W.2d 339 (Minn. 1973), I disagree with the conclusion that tenants Craig T. Seifert
and Tracy R. Bradley were afforded a meaningful opportunity to be heard at the May 23
hearing. As a result, I respectfully dissent.
Eviction proceedings are necessarily summary in nature and limited in scope. But
even summary proceedings face parameters established by the governing statute, as well
as the Constitution. Here, the initial court hearing following the answer in eviction
proceedings mandates a trial. Minn. Stat. § 504B.335(a) (2018) (“[ T]he court shall hear
and decide the action, unless it grants a continuance of the trial. . .” (emphasis added)).
Even if it did not, procedural due process requires both notice and a meaningful opportunity
to be heard. Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 909 (1976).1 In this
more-than-summary hearing, tenants received neither the promised trial nor the required
meaningful opportunity to be heard.
This dispute centered on whether tenants had paid rent for February, March, and
April 2018. The referee received a letter from the landlord s setting forth how much the
landlords believed to be due. But that letter was not received into evidence. It is not in the
record in this case. The landlords did not personally appear. Never placed under oath. Not
available for cross-examination.

1 I agree with the majority that tenants received notice to appear on May 23, 2018, and that
“the court shall hea r and decide the action” on that date, unless a continuance is granted.
Minn Stat. § 504B.335(a).
D-2

Tenants appeared at the hearing. And they submitted receipts for rent checks. All
but one of the receipts—according to the transcript, as the documents were not received
into evidence—included the notation “back rent.” Tenants’ counsel clearly stated that the
notation was “not the truth.” But there was no testimony about who made that notation—
the landlords or the tenants. In fact, there was no testimony as we commonly understand
that fundamental concept.
On this record, the referee concluded that tenants owed rent from February through
April 2018. The referee did so without live testimony, which is required at most trials, to
support the landlord’s case. See Minn. R. Civ. P. 43.01. Not even a sworn affidavit was
submitted. In fact, even though tenants appeared at the May 23 hearing, they were not
sworn in as witnesses. No documents were accepted into evidence. And, which is
particularly problematic in the procedural-due -process analysis, there was no opportunity
to confront and cross- examine witnesses over the issue of who placed the “back rent”
notation on the check receipt and why. Fosselman v. Comm’r of Human Servs., 612
N.W.2d 456, 462 (Minn. App. 2000) (quoting Goldberg v. Kelly, 397 U.S. 254, 269,
90 S. Ct. 1011, 1021 (1970)) (“In almost every setting where important decisions turn on
questions of fact, due process requires an opportunity to confront and cross-examine
witnesses.”).
Yet the referee decided the central question of whether the disputed rent was paid.
In doing so without requiring the parties to submit evidence under oath, without permitting
the opportunity for cross-examination in some fashion, and without including the
D-3

documents in the record to permit appropriate appeal, the referee denied tenants the trial
promised by statute, as well as a meaningful opportunity to be heard.2
But the landlords argue that a trial was not necessary. Rather, the referee’s decision
was an appropriate, sua sponte summary judgment decision. I disagree. Summary
judgment is appropriate only where there are undisputed material facts. Minn. R. Civ. P.
56.01. At the May 23 hearing, tenants clearly disputed whether the payment reflected
current or back rent.3 And I further note that summary judgment also requires docu ments
submitted under oath. Minn. R. Civ. P. 56.03(a). No such evidence exists here.
Eviction proceedings are quick and summary in nature. But the landlords here want that
summary nature to bend only in their favor. Landlords insist that tenants need more than
their word at a hearing to establish a factual dispute over rent payment. Yet landlords
neither personally appeared at that hearing to permit cross-examination, nor offer any
sworn testimony for their version of the truth. This hearing does not meet the standards set
out for a trial in Minnesota Statutes section 504B.335 (2018). Nor did it provide tenants

2 I also disagree with the suggestion in the majority decision that if tenants had evidence of
payment, they could have presented it between May 23 and the August 2 judge-review
hearing, or at the review hearing itself. As the district court pointed out, “a judge’s review
of a decision recommended by the referee shall be based upon the record established before
the referee.” Minn. Gen. R. Prac. 611(a).
3 The cases cited by the landlord to the contrary are distinguishable. Harmon v. Comm’r
of Revenue, 894 N.W.2d 155, 159 (Minn. 2017) (stating that Commissioner of Revenue’s
assessment of tax liability “enjoys a presumption of validity,” supporting the tax court’s
granting of summary judgment); Cargill Inc. v. Jorgenson Farms, 719 N.W.2d 226, 233-34
(Minn. App. 2006) (stating that, based upon the record, summary judgment motion was
supported by sworn affidavits of the only two people with knowledge of the alleged
contract, and nonmoving party submitted no evidence to refute either that no contract was
formed or the credibility of one affiant).
D-4

with the meaningful opportunity to be heard promised by the Constitution. 4 Accordingly,
I would reverse and remand for trial.

4 Because I would reverse and remand this case to the district court on these grounds, I do
not reach the additional issues raised by the tenants.