Mike Volstad, 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This opinion will be unpublished and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
A18-1640

Mike Volstad, et al.,
Respondents,

vs.

Janet Fullenwiley,
Appellant.

Filed July 1, 2019
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CV-HC-18-2388

Patricia A. E. Whitney, St. Paul, Minnesota (for respondents)

Janet Fullenwiley, Coon Rapids, Minnesota (pro se appellant)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In an appeal from an eviction judgment, appellant Janet Fullenwiley argues that the
district court erred in determining that respondents Mike Volst ad and Minnesota Home
Rental Inc. are entitled to possession because respondents did not waive notice to quit.

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Because the district court’s fi ndings that respondents did not accept rent—and therefore
did not waive notice to quit—are not clearly erroneous, we affirm.
FACTS
Minnesota Home Rental Inc. (MHR) manages the property at issue, which is owned
by Volstad. Fullenwiley entered into a lease with MHR and began residing on the property
in 2014. After a year, the lease automatically converted to a month-to-month lease, under
which either party could terminate the lease by giving advance notice of two months and
one day.
A few years later, Volstad started trying to sell the property. In order to facilitate a
sale, MHR sent Fullenwiley notic e to quit in March 2018, statin g that it was terminating
the lease, and that she must vacate the property by May 31, 201 8. Fullenwiley did not
vacate the property by May 31, and respondents commenced an eviction action against her.
In her answer, Fullenwiley alleged that respondents accepted Ju ne rent and waived the
notice to quit. 1 A t r i a l w a s h e l d b e f o r e a h o u s i n g - c o u r t r e f e r e e , a t w h i c h V o lstad,
Fullenwiley, and the president of MHR testified.
The referee found that respondents did not waive the notice to quit and
recommended entry of judgment for respondents. The district court approved the referee’s
recommendation. Fullenwiley requested that the district court review the order, and the
district court affirmed the decision.

1 Fullenwiley also argued that respondents did not provide proper notice. The referee found
notice was proper, the district court adopted the finding, and Fullenwiley does not raise the
issue on appeal.

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D E C I S I O N
Fullenwiley challenges the district court’s finding that respon dents did not waive
notice to quit. Waiver is the vol untary relinquishment of a kn own right. Pollard v.
Southdale Gardens of Edina Condo. Ass’n, Inc., 698 N.W.2d 449, 453 (Minn. App. 2005).
To waive a right, the party must know about the right and inten d to waive that right. Id.
Whether a landlord’s conduct manifests waiver is ordinarily a q uestion of fact. Id. We
review the district court’s findings of fact for clear error. Cimarron Vill. v. Washington ,
659 N.W.2d 811, 817 (Minn. App. 2003).
Fullenwiley argues that after MHR gave notice to quit, it waive d that notice by
accepting rent when her son electronically deposited one month’s rent into MHR’s account
on June 6. A landlord’s acceptance of a rent payment, after giving notice to quit, may show
waiver of that notice. Pappas v. Stark, 142 N.W. 1046, 1047 (Minn. 1913). This is because
“the landlord, by accepting the rent, effectively reaffirms the lease between parties.” Oak
Glen of Edina v. Brewington, 642 N.W.2d 481, 486 (Minn. App. 2002). The district court,
however, found that MHR did not accept rent, and we must decide whether that finding
was clearly erroneous. We conclude that it was not.
The district court reasoned that MHR never accepted the rent pa yment because it
could not prevent someone from a ttempting to make an electronic payment. The district
court further explained that although Fullenwiley’s son deposit ed money into MHR’s
account, MHR took promp t steps to return the payment. This rea soning is supported by
the record. The president of MHR testified that he cannot stop someone from attempting
to deposit funds into MHR’s account. He also testified that while it is possible to cancel a

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payment, in order to do so, he must cancel the payment almost immediately. If he misses
that tight window, he must wait until the funds clear and are d eposited into the account
before refunding the payment. The president further testified that within two days of the
payment, he initiated a refund. MHR’s limited ability to stop an incoming payment and its
conduct in quickly initiating a refund support the district court’s conclusion that MHR did
not accept June rent.
Fullenwiley’s argument focuses on the fact that the funds were withdrawn from her
son’s account and briefly deposite d into MHR’s account. But th is was not the result of
MHR’s conduct; it was the result of the son’s conduct in initiating the transfer. MHR did
not request that Fullenwiley make a payment or take any action to obtain a payment from
her. Fullenwiley also argues th at by not canceling the payment , MHR accepted rent.
Although MHR has the ability to cancel an incoming payment if it is aware of the payment
and acts quickly, MHR’s conduct as a whole indicates that it di d not accept the payment.
Accordingly, the district court’s finding that MHR did not acce pt rent is not clearly
erroneous. Because Fullenwiley does not argue that any other conduct manifests intent to
waive notice, the district court’s finding that respondents did not waive notice to quit is not
clearly erroneous.
Affirmed.