Little Earth of United Tribes Housing Corp, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0884

Little Earth of United Tribes Housing Corp,
Respondent,

vs.

Bonita LittleGhost,
Appellant.

Filed March 14, 2022
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CV-HC-19-5884

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

Elizabeth F. Sauer, Central Minnesota Le gal Services, Minneapolis, Minnesota (for
appellant)

Considered and decided by Gaïtas, Presid ing Judge; Smith, Tracy M., Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant-tenant challenges the district court’s order and judgment evicting her
from her apartment. Tenant argues that resp ondent-landlord’s acceptance of rent legally
waives past lease breaches and the district court erred in amendi ng the complaint to
conform to the evidence presented at trial. Because the district court’s finding that the
2
landlord did not intend to waive tenant’s leas e breaches by accepting rent was not clearly
erroneous, and the district court was within its discretion to amend the complaint to
conform to the evidence presented at trial, we affirm.
FACTS
Appellant-tenant Bonita LittleGhost leased an apartment from respondent-landlord
Little Earth of United Tribes Housing Corp. On December 18, 2019, Little Earth gave
LittleGhost written notice that it would te rminate her lease on December 28 for
(1) allowing her guests to “engage in illegal activity, including drug related activity, on or
near the said premises,” and (2) “repeated minor violations of the lease that . . . adversely
affect the health or safety of any person or the right of any tenant to the quiet enjoyment to
the leased premises and related project facilities.” Little Earth supplemented this notice of
lease termination on December 26, advising LittleGhost that “[a]cceptance of any payment
from you or submitted by someone else on your behalf will not waive the right to evict you
for past or existing violations of any term of the lease or other document governing your
lease or tenancy.” The supplemental notice of lease termination incorporated notices of
lease violations that LittleGhost had received over the previous two years.
Little Earth filed an eviction complaint on December 30, 2019, and on January 3,
2020, served process on LittleGhost. LittleGhost submitted a $190 payment on December
31, 2019, which Little Earth accepted.
A referee conducted a trial on three days in late January and early February 2020.
On March 2, 2020, the referee issued a r ecommended order evicti ng LittleGhost, which
was accepted by the district court. Follo wing LittleGhost’s request and pursuant to
3
general-practice rule 611, a district court judg e reviewed the order and issued findings of
fact and conclusions of law affirming the di strict court’s March 2 order and judgment. 1
This appeal follows.
DECISION
I. The district court’s finding that Little Earth did not, by accepting rent
payment, waive past breaches of the lease is not clearly erroneous.

In an appeal from an eviction action, “gen erally, the only issue for determination is
whether the facts alleged in the complaint are true. Therefore, our standard of review is
whether the district court’s findings of fact are clearly erroneous.” Cimarron Vill. v.
Washington, 659 N.W.2d 811, 817 (M inn. App. 2003) (citation omitted). “Waiver
generally is a question of fact, and it is ra rely to be inferred as a matter of law.” Valspar
Refinish, Inc. v. Gaylord’s Inc. , 764 N.W.2d 359, 367 (Minn. 2009) (quoting Farnum v.
Peterson-Biddick Co., 234 N.W. 646, 647 (Minn. 1931); see also Pollard v. Southdale
Gardens of Edina Condo. Ass’n , 698 N.W.2d 449, 453 (Minn. App. 2005) (“Waiver is
ordinarily a question of fact for a jury, unless only one in ference may be drawn from the
facts.”). “The acceptance of rent alone does not necessarily manifest any intent to waive
the notice of termination.” Minneapolis Cmty. Dev. Agency v. Powell , 352 N.W.2d 532,
534 (Minn. App. 1984).
The district court recognized that acceptance of rent generally acts as a waiver of
past breaches but that, as stated in Powell, acceptance of rent does not constitute waiver

1 The district court’s order affirming the March 2, 2020, order was issued on June 29, 2021.
LittleGhost timely appealed, and the reason for the delay between the referee’s order and
district court affirmance is not clear in this record.
4
“when a landlord’s conduct has not manifested an intent to waive the notice of eviction.”
It found that “the express repudiation of waiver in the Supplemental Notice clearly
manifests [Little Earth]’s intent not to waive the termination notice by accepting rent.”
LittleGhost argues, based upon the “general principle” pronounced in Kenny v. Seu
Si Lun , 112 N.W. 220, 221 (Minn. 1907), that the district court erred by considering
whether Little Earth intende d to waive known breaches. Kenny announced that “money
tendered by the tenant and receive d by the landlord as re nt is paid as rent and operates to
bar the landlord from asserting against the tenant past causes of forfeiture under the terms
of the lease which were known to him at the time of such payment.” Id. For the reasons
explained below, we are not persuaded.
In Kenny, the supreme court ruled that the landlord was “precluded from asserting
his right to entry against his tenant” becaus e the landlord’s “own receipt shows that the
amount paid was received . . . ‘for rent of store.’” Id. at 222. The landlord had cancelled
the lease and demanded that the tenant vacate the premises at the end of the month. Id. at
220. When the tenant did not vacate, the landlord “demanded and collected the monthly
rent . . . and signed a receipt in that sum for rent of the premises.” Id. The sole question
for the court, therefore, was whether acceptance of rent, with no other indication of intent,
waived past breaches.
Unlike in Kenny, Little Earth notified LittleGhost that acceptance of rent would not
waive past breaches. Therefore, Kenny is not determinative. Because the record shows
that Little Earth notified LittleGhost before the December 31 payment that “[a]cceptance
of any payment from you or submitted by someone else on your behalf will not waive the
5
right to evict you for past or existing violations of any term of the lease or other document
governing your lease or tenancy,” the district court did not clearly err by finding that Little
Earth did not intend to waive the breaches by accepting rent.
II. The district court acted within its di scretion by amending the complaint to
conform to the evidence presented during the trial.

“Generally, the decision to permit or deny amendments to pleadings is within the
discretion of the district court and will not be reversed absent a clear abuse of discretion.”
Johns v. Harborage I, Ltd., 664 N.W.2d 291, 295 (Minn. 2003). “Such amendment of the
pleadings . . . may be necessary to cause them to conform to the evidence.” Minn. R. Civ.
P. 15.02. If a party objects to the evidence “a t the trial on the ground that it is not within
the issues raised by the pleadi ngs,” the district court should allow the pleadings to be
amended only if “the objectin g party fails to satisfy the court that admission of such
evidence would prejudice maintenance of the action or defense upon the merits. The court
may grant a continuance to enable the objecting party to meet such evidence.” Id.
On the first day of trial, Little Earth e licited testimony from the property manager
that LittleGhost’s son lived w ith her, which is a violation of the lease. During her
testimony, LittleGhost denied that her son was living with her. In response to LittleGhost’s
denial, Little Earth sought to present rebuttal video evidence revealing that LittleGhost’s
son used keys to access her apar tment without her present. LittleGhost objected that the
evidence was not legally relevant. The district court continued the trial to allow her to view
the videos and prepare a response.
6
Once the trial resumed, LittleGhost stipulated that the videos show that her son used
a set of keys to enter her apartment multiple times in December 2019 and January 2020,
and that her son did, in fact, use a set of ke ys to access her apartment on those occasions.
However, LittleGhost maintained her relevance objection to the receipt of the evidence.
The district court, in its written order granting the eviction, concluded the video
evidence was relevant to an ongoing lease violation by indicating LittleGhost allowed her
son to reside in her apartment. The district court therefore deemed the pleadings amended
to conform to the video evidence. Our review of the record informs us that this conclusion
was properly within the district court’s discretion.
LittleGhost was provided additional time to review the evidence and had the
opportunity, if she had so de sired, to respond to the obj ected-to evidence. Therefore,
LittleGhost has not shown that she was prejudiced. The district court, therefore, was within
its discretion to deem the complaint amended.
LittleGhost alternatively argues that rule 15.02 does not appl y in housing-court
matters because it conflicts with housing-court rules and statute and its application violated
her due-process rights. We disagree.
The rules of civil procedure apply to ev iction proceedings where not inconsistent
with statute or housing-court rules. Minn. Stat. § 504B.335(c) (2020); Minn. R. Gen. Prac.
601. Minnesota statute and the rules for housing-court proceedi ngs in Hennepin and
Ramsey counties require an eviction compla int to state “the facts which authorize
recovery,” Minn. Stat. § 504B.321, subd. 1(a) (2020), Minn. R. Gen. Prac. 604(a)(4), and
federal regulations require a notice of lease termination to state “the reasons for the
7
landlord’s action with enough specificity so as to enable the te nant to prepare a defense.”
24 C.F.R. § 247.4(a)(2) (2021); see Hoglund-Hall v. Kleinschmidt, 381 N.W.2d 889, 895
(Minn. App. 1986) (applying federal regula tions to eviction from federally subsidized
housing project).
Due process in housing court requires “(1) adequate notice to the tenant; (2) the
tenant’s right to be represented by counsel; (3) an opportunity for the te nant to refute . . .
evidence including the right to confront and cross-examine witnesses and the right to raise
affirmative legal or equitable defenses ; and (4) a decision on the merits.” Minneapolis
Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 703 (Minn. 1999). LittleGhost was represented
by counsel at all relevant hearings, had notic e of the videos, and had the opportunity to
refute the evidence. Just as she was not prejudiced by amendment of the pleadings,
LittleGhost’s due-process rights were not viol ated by amendment of the pleadings.
Amendment of the pleadings did not conflict w ith housing-court rules or statute and the
district court acted within its discretion to amend the complaint pursuant to rule 15.02.
Affirmed.