Community Housing Services - Park Towers, Inc., Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0279

Community Housing Services - Park Towers, Inc.,
Respondent,

vs.

Julie Gay,
Appellant.

Filed December 21, 2020
Affirmed in part and reversed in part
Johnson, Judge

Olmsted County District Court
File No. 55-CV-19-8463

Kerri J. Nelson, Bassford Remele, P.A., Minneapolis, Minnesota (for respondent)

William L. French, Rochester, Minnesota (for appellant)

Considered and decided by Frisch, Pres iding Judge; Johnson, Judge; and Schellhas,
Judge.

S Y L L A B U S
In an eviction action, a district court sh all not issue a writ of recovery unless and
until it has entered judgment in favor of the plaintiff.

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

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O P I N I O N
JOHNSON, Judge
In this eviction action, the former te nant appeals from an adverse judgment
following a jury trial and raises four issues. We conclude that the district court did not err
by denying her request to proceed in forma pauperis , by considering the landlord’s pre-
trial motion concerning one of her affirma tive defenses, or by granting the landlord’s
motion for judgment as a matter of law after both parties had rested. But we conclude that
the district court erred by issuing a writ of recovery before entering judgment. Therefore,
we affirm in part and reverse in part.
FACTS
In March 2011, Julie Gay began leasing a unit at the Park Towers Apartments in
Rochester. The apartment building is owne d and managed by respondent Community
Housing Services—Park Towers, Inc.
In 2019, Gay and Park To wers’ management clashed over a bedbug problem.
During a preventive inspection in May 2019, a pest-control technician discovered an
infestation of bedbugs in Gay’s apartment and scheduled a heat treatment to eradicate them.
Park Towers’ management gave Gay instructions on how to prepare for the heat treatment.
But Gay did not make the required preparati ons. The pest-control technician nonetheless
conducted the heat treatment.
A second preventiv e inspection of Gay’s apartmen t was performed in September
2019. The pest-control technician discovered a new infestation a nd concluded that the
apartment needed to be heat treated again. The pest-c ontrol technician determined that,

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based on the number and th e age of the bedbugs found during both inspections, they
probably had been in Gay’s apartment for a matter of months. Park Towers’ management
determined that Gay had vi olated her lease agreement by failing to report the bedbug
infestations. In a discussion with the building manager, Gay stated that she knew about
the bedbugs but intentionally did not report them.
On October 14, 2019, a pest-control techni cian scheduled a meeting with Gay at her
apartment to speak with her about the preparations she would need to make before another
heat treatment. But on the technician’s arri val, Gay walked out of her apartment and did
not return. Later that day, Park Towers gave written notice to Gay that her lease would be
terminated, effective October 25, 2019, for her failure to repo rt bedbug infestations and
failure to cooperate with reme diation efforts. The termina tion letter stated that Gay had
the option of entering into a lease-termination agreement with a mutually agreeable move-
out date. Two days later, Ga y signed a one-page document entitled “Intent to Vacate
Notice,” which specified a move-out date of December 1, 2019, for the stated reason of
“mutual lease term[ination].”
On December 1, 2019, Gay refused to vacate her ap artment as agreed. On
December 6, 2019, Park Towers served a su mmons and eviction comp laint on her. Gay
retained an attorney, who entered an appearance on December 10, 2019. On the same day,
Gay applied for in forma pauperis status. On the following day, the district court denied
the application. On December 19, 2019, Gay filed an answer and requested a jury trial.
The district court scheduled a jury trial for December 30, 2019.

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At trial, Park Towers presented the testimony of three witnesses over two days. Gay
rested her case without presenti ng any evidence. Park Towe rs moved for judgment as a
matter of law (JMOL), and the district court granted the motion from the bench.
Immediately after the district court granted Park Towers’ motion for JMOL, Gay’s
attorney informed the district court of her in tent to appeal and requested that the writ of
recovery be stayed. In response, Park To wers asked the district court for 48 hours
(including the New Year’s Day holiday) in which to decide whether to post a bond so that
a writ of recovery could be issued. The district court granted Park Towers’ request.
On January 2, 2020, Park Towers informed the district court by letter that it would
post a bond, and it proposed the amount of $11,250. Gay responded the next day by
proposing an amount between $35,000 and $45,000. On January 6, 2020, the district court
informed the parties that it would require a bond in the amount of $15,000 and asked Park
Towers to prepare and submit a proposed order. Park Towers did so, and the district court
signed and filed its order on January 7, 2020. The order states, in part, “If Defendant timely
files a Notice of Appeal for this matter, Plaintiff shall give a bond for $15,000” as security
for “payment of all costs and damages if on appeal the judgment of restitution is reversed
and a new trial ordered.”
In addition to setting the amount of the bond, the January 7, 2020 order also states,
“The Writ of Recovery of Premises and Order to Vacate shall issue immediately.” On the
following day, Park Towers wr ote to the court administrato r to request that a writ of
recovery be issued, and it was issued that same day. On January 9, 2020, a deputy sheriff

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served the writ on Gay. Gay states in her a ppellate brief that she surrendered possession
of the premises before the writ was executed.
On February 5, 2020, the district court filed an order directing the court
administrator to enter judgment. The court administrator entered judgment on February 7,
2020. Gay filed a notice of appeal on February 21, 2020.
ISSUES
I. Did the district court err by denyi ng Gay’s request for leave to proceed in
forma pauperis?
II. Did the district court err by cons idering Park Towers’ pre-trial motion
concerning one of Gay’s affirmative defenses?
III. Did the district court err by grantin g Park Towers’ motion for judgment as a
matter of law?
IV. Did the district court err by issui ng the writ of recovery before entering
judgment?
ANALYSIS
I.
We begin by considering Gay’s argument th at the district court erred by denying
her request for leave to proceed in forma pauperis.
A party who is “financially unable to pay” the filing fees and costs of a civil action
may be permitted to proceed “w ithout prepayment.” Minn. Stat. § 563.01 , subd. 3(a)
(2018). A party is eligible to proceed in forma pauperis if he or she either “is receiving
public assistance described in section 550.37, subdivision 14, . . . is represented by an

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attorney on behalf of a civil legal services program or a volunteer attorney program based
on indigency, or . . . has an annual income not greater than 125 percent of the poverty line.”
Id., subd. 3(b). In addition, the district court must find that the action is not frivolous. Id.
This court applies an abuse-of-discretion standard of review to a district court’s denial of
in forma pauperis status. State v. Scheffler, 932 N.W.2d 57, 60 (Minn. App. 2019).
In this case, the district court denied Gay’s application on the ground that she “is
not found to be indigent a nd is not entitled to proceed in forma pauperis.” Gay contends
that she is eligible for in forma pauperis status on the ground that she pays Medicare part
B premiums. She acknowledges that, in her affidavit supporting her request for in forma
pauperis status, she did not state that she pays Medicare part B premiums. But she contends
that the district court should have drawn th at inference based on other information she
provided or that the district court should have inquired further.
Gay relies on section 550.37, subdivision 14, which is the statute referenced in the
in forma pauperis statute. That statute defines pub lic assistance to include “government
assistance based on need,” which is defined to include, among other things, “payment of
Medicare part B premiums or receipt of part D extra help.” Minn. Stat. § 550.37, subd. 14
(2018). In context, it is appa rent that the word “payment” in that clause refers to the
government’s payment of a person’s Medicare part B premiums, not the person’s payment
of the premiums from his or her own resour ces. The latter type of payment is not
government assistance based on need. Acco rdingly, Gay’s payment of Medicare part B
premiums does not make her eligible for in forma pauperis status.

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Gay contends in the alternative that the district court should have allowed her to pay
a lesser filing fee. She relies on a statute that provides as follows:
If . . . the court finds that a party does not meet the
eligibility criteria under paragraph (b), but the court also finds
that the party is not able to pay all of the fees, costs, and
security for costs, the court may order payment of a fee of $75
or partial payment of the fees, co sts, and security for costs, to
be paid as directed by the court.

Minn. Stat. § 563.01, subd. 3(c). There is no indication in the record that Gay asked the
district court to allow her to pay a lesser f iling fee. The plain language of the statute,
especially the word “may,” i ndicates that a district court has discretion to order a lesser
filing fee pursuant to section 563.01, subdivision 3(c). See, e.g., In re Welfare of Children
of J.D.T., 946 N.W.2d 321, 327-28 (M inn. 2020). Gay has not cited any caselaw for the
proposition that a district court is required to allow a lesser filing fee in any particular
circumstance, and we are not aware of any such caselaw. Furthermore, Gay has not
identified any particular featur es of her application that s hould have caused the district
court to order a lesser filing fee. In the circumstances of this case, the district court did not
abuse its discretion by not sua sponte ordering the payment of a lesser filing fee.
Thus, the district court did not err by denying Gay’s request to proceed in forma
pauperis.
II.

Gay argues that the district court erred by considering, at the outset of trial, a motion
that Park Towers served and filed three days earlier. Gay does not challenge the district

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court’s substantive ruling on the motion; rather, she challenges only the fact that the district
court considered the motion.
The issue first arose at a preliminary he aring on December 19, 2019, when Park
Towers requested leave to file a summary-j udgment motion challenging some of Gay’s
affirmative defenses. The district judge requested informal briefs on the question whether
a summary-judgment motion would be appropriate in an eviction action in light of its
accelerated timelines. Park Towers filed a le tter brief, and Gay filed a responsive letter
brief. But Park Towers did not file a summary-judgment motion. Instead, it filed an eight-
part motion in limine on December 27, 2019, three days before trial. The fifth part of that
motion sought to exclude evidence relevant to Gay’s affirmative defense that she has a
constitutional right to free speech . On the morning of trial, the district court considered
Park Towers’ motion in limine and granted it with respect to the fifth part on the ground
that Park Towers is not a state actor.
On appeal, Gay contends that, even th ough Park Towers’ motion was labeled a
motion in limine, it effectively was a summary-judgm ent motion, and it was not served
according to the rules governing dispositive motions. See Minn. R. Gen. Prac. 115.03. We
reject Gay’s premise that the motion was a summary-judgment motion. The fifth part of
the motion sought the exclusio n of evidence, not a judgment or partial judgment in Park
Towers’ favor. See Hebrink v. Farm Bureau Life Ins. Co., 664 N.W.2d 414, 418-19 (Minn.
App. 2003). Even if the motion were deem ed a summary-judgment motion, there would
be no error unless Gay was prejudiced. See Federal Land Bank v. Obermoller, 429 N.W.2d
251, 255 (Minn. App. 1988). Gay was not prejudiced because her affirmative defense was

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not viable given that she has not disputed Park Towers’ assertion that it is not a state actor.
See West v. Atkins, 487 U.S. 42, 48-50 (1988).
Thus, the district court did not err by c onsidering the fifth part of the motion in
limine that Park Towers filed three days before trial.
III.
Gay argues that the district court erred by granting Park Towers’ motion for JMOL
at the close of the evidentiary phase of trial.
A district court may grant a motion for JMOL “[i]f during a trial by jury a party has
been fully heard on an issue and there is no legally su fficient evidentia ry basis for a
reasonable jury to find for that party on that i ssue.” Minn. R. Civ. P. 50.01(a). A district
court may grant such a motion “with respect to a claim or defense that cannot under the
controlling law be maintained or defeated without a favorabl e finding on that issue.” Id.
We apply a de novo standard of review to a district court’s ruling on a JMOL motion. In
re Estate of Butler , 803 N.W.2d 393, 399 (Minn. 2011). In reviewing a district court’s
grant of a motion for JMOL, we “view[] the ev idence in a light most favorable to the
nonmoving party,” and we “make[] an indepe ndent determination of whether there is
sufficient evidence to present an issue of fact for the jury.” Jerry’s Enters., Ins. v. Larkin,
Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006).
In this case, Park Towers orally moved fo r JMOL after Gay rested her case. After
listening to arguments from counsel for both par ties, the district court granted the motion
from the bench. The district court reasone d that Park Towers was entitled to possession
for two reasons: first, because Gay violated the terms of her lease by not reporting bedbugs,

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and, second, because she agreed in writing to move out on December 1, 2019, but instead
held over. The district court also reasone d that Gay could not pr evail on her retaliation
defense because there was no evidence that she had engaged in any conduct that is
protected by statute.
On appeal, Gay challenges the district court’s ruling that there was a lease violation.
But Gay does not challenge the district c ourt’s ruling that Gay was a holdover tenant
because she had agreed in writing to move out of her apartment on December 1, 2019. The
second of those two rulings, wh ich is unchallenged, is a suffi cient basis for the district
court’s conclusion that Park Towers proved its right to possession. See Hunter v. Anchor
Bank, N.A., 842 N.W.2d 10, 17 (Minn. App. 2013), review denied (Minn. Mar. 18, 2014).
Gay also challenges the district court’s ruling with respect to her statutory retaliation
defense. A tenant can defeat an eviction acti on if he or she can pr ove that “the alleged
termination was intended in whole or part as a penalty for the defendant’s good faith report
to a governmental authority of the plaintiff’s violation of a health, safety, housing, or
building code or ordinance.” Minn. Stat. § 504B.285, subd. 2(2) (2018). Gay contends
that there is evidence in the record that she engaged in protected conduct. She refers to the
letter in which Park Towers’ management gave her notice that it was terminating her lease.
The letter suggests that Gay had made a report “to building safety.” But the author of the
letter testified that, when she wrote the letter, she merely assumed that Gay had made a
report to the City of Rochester but actually had no basis for believing that Gay had done
so. That testimony effectively negated the evid entiary value of the le tter’s reference to a
purported report. Gay did not testify or introduce any other form of evidence.

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Consequently, there is no evid ence in the record that Gay engaged in protected conduct,
which is a prerequisite of her retaliation defense.
Thus, the district court did not err by granting Park Towers’ motion for JMOL.
IV.
Gay argues that the district court erred by issuing a writ of recovery before entering
judgment.
Gay relies on a statute that provides:
If the court or jury finds fo r the plaintiff, the court shall
immediately enter judgment that the plaintiff shall have
recovery of the premises, and shall tax the costs against the
defendant. The court shall is sue execution in favor of the
plaintiff for the costs and also immediately issue a writ of
recovery of premises and order to vacate.

Minn. Stat. § 504B.345, subd. 1(a) (2018). 1 The plain language of this statute states that
judgment shall be entered “immediately” after a finding in favor of a plaintiff and that a
writ of recovery also shall be issued “immediately.” Id. But the statute does not expressly
state whether one of those events should occur before the other.
Other sources of law, however, provide more support for Gay’s argument. This
court has stated that it is “improper” for a district court administrator to “neglect to enter a
judgment of restitution in unlawful detainer actions, and instead simply issue a writ of
restitution based upon the order for restitution.” Makela v. Peters, 425 N.W.2d 605, 606

1Another subdivision provides, with exceptions, that if “immediate restitution of the
premises would work a substantial hardship upon the defendant or the defendant’s family,
the court shall stay the writ of recovery of premises and order to vacate for a reasonable
period, not to exceed seven days.” Minn. Stat. § 504B.345, subd. 1(d).

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(Minn. App. 1988). Our Makela opinion is consistent w ith the well-accepted general
principle that a judgment is a necessary condition to the issu ance of a writ. See, e.g.,
55 C.J.S. Mandamus § 447 (2020) (“Generally, a formal judgment must be rendered as the
basis for [a] writ before it can issue.”). We note that, in eviction cases in Hennepin and
Ramsey counties, a rule of court provides, “A writ of recovery and order to vacate shall
issue within 24 hours after the entry of judgment, . . . unless a stay authorized by law is
specifically ordered by the court.” Minn. R. Gen. Prac. 609 (emphasis added); see also
Minn. R. Gen. Prac. 601 & 1991 cm t. Consistent with all of these authorities, this court
previously has stated in non-precedential opinions that a district court errs if it issues a writ
of recovery without entering or before entering judgment.2
In this case, the district court issued th e writ of recovery on January 8, 2020. The
district court entered judgment on February 7, 2020. Thus, the di strict court erred by
issuing a writ of recovery before it had entered judgment.
The conclusion that the district court e rred necessarily raises a question as to
whether Gay is entitled to a remedy. Gay contends that the writ was “void ab initio” and

2See Verjovsky v. Mental Health Resources, Inc., No. A11-454, 2011 WL 6306652,
at *2 (Minn. App. Dec. 19, 2011) (“In an eviction action, the district court must order
judgment in the landlord’s favor before a writ of recovery may be issued.”); Morford-
Garcia v. Metropolitan Council Hous. & Redevelopment Auth., No. A08-2203, 2009 WL
4909435, at *1 (Minn. App. Dec. 22, 2009) (“In an eviction action, the district court must
order judgment for the landlord before a writ of recovery may be issued.”); see also Prime
Sec. Bank v. Hartman , No. A11-1753, 2012 WL 3263785, at *2 (Minn. App. Aug. 13,
2012) (noting that, while appeal from Carver County was pending, special-term panel of
court of appeals had “order[ed] vacation of th e writ of recovery because the district court
failed to enter judgment in the eviction proceeding before issuing the writ”), review denied
(Minn. Oct. 16, 2012).

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that she is “entitled to a reversal of the Wr it of Recovery and entr y of judgment in her
favor.” She does not cite any legal authorities for these contentions. Park Towers contends
that Gay was not prejudiced because the writ was issued before the resolution of this appeal.
Gay is not entitled to judgment in her favor. The district court determined the merits
of the action in Park Towers’ fa vor. “If the court or jury fi nds for the plaintiff, the court
shall immediately enter judgment that the plai ntiff shall have recovery of the premises
. . . .” Minn. Stat. § 504B.345, subd. 1(a ). Thus, Park Towers was and is entitled to
possession of the premises. The district court’ s error is limited to the premature issuance
of the writ of recovery. The appropriate appellate remedy for that error is simply reversal
of the issuance of the writ. Th e limited nature of this relief is consistent with the limited
nature of an eviction action, which is a “s ummary proceeding[] that [is] intended to
adjudicate only the limited question of present possessory rights to the property.” Deutsche
Bank Nat’l Trust Co. v. Hanson, 841 N.W.2d 161, 164 (Minn. App. 2014) (citing Lilyerd
v. Carlson, 499 N.W.2d 803, 812 (Minn. 1993)). Th is is so even th ough Park Towers
posted a bond in connection with Gay’s appeal. The purpose of such a bond also is limited:
“to pay all costs and damages if on the appeal the judgment of restitution is reversed and a
new trial ordered.” Minn. Stat. § 504B.371, subd. 7 (2018). Because we are not reversing
the judgment and not ordering a new trial, Gay may not recover on the bond.
Thus, the district court erre d by issuing a writ of recovery before entering judgment.
As a consequence, we reverse the issuance of the writ.

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D E C I S I O N
The district court did not err by denying Gay’s request to proceed in forma pauperis,
by considering Park Towers’ pre-trial motion in limine concerning one of Gay’s affirmative
defenses, or by granting Park Towers’ motio n for judgment as a matter of law after the
parties had rested. But the district court erre d by issuing a writ of recovery before it had
entered judgment. Therefore, we affirm in part and reverse in part.
Affirmed in part and reversed in part.