### Filed 5/16/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 136

Watford City Lodging LLC, Plaintiff and Appellant

v. Christopher Dean Miskin, Defendant and Appellee

No. 20180339

Appeal from the District Court of McKenzie County, Northwest Ju dicial District, the Honorable Daniel S. El-Dweek, Judge.

REVERSED AND REMANDED.
Opinion of the Court by Tufte, Justice

. William C. Black, Bismarck, N.D., for plaintiff and appellant.
Greg W. Hennessy, Williston, N.D., for defendant and appellee.Watford City Lodging LLC v. Miskin
No. 20180339

Tufte, Justice. [¶1] Watford City Lodging LLC (“WCL” ) appeals from an order deny ing its motion to amend a judgment vacating a default eviction judgment. WCL argues the district court lacked subject matter jurisdiction over the eviction proc eedings, exceeded its jurisdiction by making extraneous findings and conclusions of l aw, and abused its discretion by denying WCL’s motion to amend the judgment. We r everse the court’s order and remand for the court to vacate its extraneous finding s of fact and conclusions of law in its judgment vacating the default evictio n.

I [¶2] On November 22, 2017, WCL filed an eviction complaint again st Christopher Miskin. WCL claimed Miskin planned to purchase property WCL owns, he signed an early occupancy agreement as part of the sale, the early occ upancy agreement required him to pay $8,000 in earnest money, he never paid the earnest money, he indicated he would not be purchasing the property, and he conti nued to be in possession of the property despite being told to evacuate and r eceiving a three-day notice to evict. A notice of hearing was filed, stating a “sch eduling conference” was set for December 11, 2017. [¶3] On December 11, 2017, a hearing was held on the eviction co mplaint. Miskin did not appear at the hearing. On December 14, 2017, the district court entered a
default eviction. The court found Miskin was served with a not ice to evict as required by statute, and Miskin failed to appear for the hearing and did not answer the complaint. The court also found WCL leased the property to Mis kin, the lease agreement required Miskin to pay $8,000 monthly rent, and Miski n materially violated the lease by failing to timely pay rent. The court or dered Miskin’s immediate eviction. Judgment of eviction was entered.

1[¶4] On February 7, 2018, Miskin moved to vacate the default jud gment of eviction. Miskin argued his eviction was wrongful because N.D.C.C. § 47-3 2-02 requires an eviction hearing to be held within three to fifteen days after issuance of a summons; the hearing was held on December 11, 2017, nineteen days after the summons was issued; and therefore the court did not have jurisdiction to is sue the eviction order and judgment. He also argued the purchase agreement and early occu pancy agreement were not a lease, there was no lease agreement, and therefore the summary eviction proceedings did not apply. WCL opposed the motion. [¶5] After a hearing, the district court entered an order vacati ng the default eviction judgment. The court concluded the matter was inappropriate as a summary eviction matter, the parties did not have a lease and had only a purchas e agreement, Miskin’s attorney was not served with the eviction pleadings, and the co urt did not have jurisdiction to evict Miskin. The court ordered Miskin be imme diately restored to possession and occupancy of the premises. Judgment was entered consistent with the
order. [¶6] WCL moved to amend the judgment to strike certain paragraph s. WCL argued the district court erred by ruling on matters other than posses sion of the premises and by taking testimony and receiving evidence when an evidentiary hearing had not been requested. WCL asserted the motion to vacate should have been the only question
before the court. The district court denied the motion.

II [¶7] WCL appeals from the district court’s order denying WCL’s m otion to amend the judgment vacating the default eviction judgment. WCL moved to amend the judgment under N.D.R.Civ.P. 59(j) and 60(b)(1) and (6). A district court’s decision on a motion to amend a judgment under N.D.R.Civ.P. 59(j) or on a motion for relief from a judgment under N.D.R.Civ.P. 60(b) will not be reversed o n appeal unless the
court abused its discretion. Werven v. Werven , 2016 ND 60, ¶ 24, 877 N.W.2d 9. A court abuses its discretion when it acts in an arbitrary, unrea sonable, or

2unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leadin g to a reasoned
determination. Id. [¶8] A motion to amend a judgment under N.D.R.Civ.P. 59(j) may b e used to request the court reconsider its judgment and correct errors of law. Flaten v. Couture , 2018 ND 136, ¶ 28, 912 N.W.2d 330. We have explained that N.D. R.Civ.P. 60(b)(1) “may be used to relieve a party from a judgment for mistake, in advertence, surprise, or excusable neglect.” Flaten , at ¶ 29. Rule 60(b), N.D.R.Civ.P., “is the ‘catchall provision’ that allows a court to grant relief for ‘any other r eason that justifies relief’ and should be invoked only when extraordinary circumstances are present.” Flaten , at ¶ 29. [¶9] Here, the judgment vacating the default eviction stated: 1. From the Findings of Fact, the Court concludes as a matter of law that: 2. This matter was inappropriate as a summary eviction matter; 3. There never was or is a lease agreement of any kind between the parties, but only a purchase agreement for $80,000.00 which [WC L] breached by failure to sign the deed and closing documents on June 10, 2017.

. . . . 6. [WCL] did not serve [Miskin’s attorney] with the eviction pleadings as required by [N.D.R.Civ.P. 5(b)(2)(a)], even though on notice that Mr. Miskin was represented by counsel. 7. There never was $8000.00 unpaid rent, but instead a pre-paid $8000.00 down payment on the $80,000.00 purchase price, plus an other $8000.00 deposit to escrow for closing, as paid by Mr. Miskin t otaling $16,000.00 in escrow as of June 10, 2017 through March 16, 2018

. 8. It was wrongful eviction by [WCL] to use Ch. 47-32 N.D.C.C. against Defendant Miskin. 9. There is no evidence of breach of contract by Mr. Miskin. 10. The motion to vacate default judgment is timely under the [N.D.R.Civ.P. 60(b)(6)]. 11. The Court had no jurisdiction to evict Mr. Miskin had the a ctual facts been presented to the Court by [WCL’s attorneys] who only created confusion about the true case. Under the rule in Basin Electric Power Coop. v. ND Workers Comp. Bureau , 541 NW2d 685 (ND 1996)

3the 3-15 day time limits of [N.D.C.C. § 47-32-02] are jurisdict ional, therefore the hearing on day nineteen was void at the inception

. 12. Mr. Miskin is entitled to treble damages for wrongful evic tion in an amount to be determined; 13. Mr. Miskin has filed suit against [WCL] and [WCL’s owner] individually for breach of contract and specific performance ba sed on the purchase agreement in McKenzie Civ. No. 27-2018-CV-00096 which will address the other and further damages suffered at th e hands of the defendants named therein. 14. The default judgment of eviction is hereby vacated, and Mr . Miskin is immediately restored to possession and occupancy of the premises more fully described in the complaint and purchase agreement. [¶10] WCL moved to amend the judgment, arguing the district court erred by ruling on matters other than possession of the premises and by taking testimony and receiving evidence when an evidentiary hearing had not been req uested. The court denied WCL’s motion, explaining summary eviction proceedings un der N.D.C.C. ch. 47-32 were inappropriate because there was no evidence under wh ich any of the subsections of N.D.C.C. § 47-32-01 would apply and permit evict ion. The court further ruled all of its findings were necessary to support its conclusion that the judgment should be vacated. [¶11] On appeal, WCL argues the district court abused its discre tion by denying its motion to amend the judgment. WCL asserts the court erred by m aking extraneous findings of fact and conclusions of law, including findings and conclusions about Miskin’s potential breach of contract and wrongful eviction cla ims. WCL also contends the court erred by improperly joining Miskin’s cause o f action for wrongful eviction with the summary eviction proceeding and WCL did not h ave notice the court was going to litigate Miskin’s claims during the hearing on the motion to vacate the default judgment. [¶12] Eviction actions under N.D.C.C. ch. 47-32 are summary proc eedings. Spirit Prop. Mgmt. v. Vondell , 2017 ND 158, ¶ 4, 897 N.W.2d 334. Section 47-32-04, N.D.C.C., states: An action of eviction cannot be brought in a district court in connection with any other action, except for rents and profits accrued or for

4damages arising by reason of the defendant’s possession. No counterclaim can be interposed in such action, except as a seto ff to a demand made for damages or for rents and profits. “The purpose of the statute is to provide an inexpensive, exped itious, and simple means to determine possession.” Cheetah Prop. 1, LLC v. Panther Pressure Testers,
Inc. , 2016 ND 102, ¶ 20, 879 N.W.2d 423 (quoting Gasic v. Bosworth , 2014 ND 85, ¶ 7, 845 N.W.2d 306). [¶13] Section 47-32-04, N.D.C.C., “strictly limits the parties’ ability to combine the eviction with other claims and precludes the defendant from interposing a counterclaim, except as a setoff to the plaintiff’s claim for d amages, rent, or profits.” Cheetah Prop. , 2016 ND 102, ¶ 20, 879 N.W.2d 423. The purpose of the no-counterclaim provision is to get a speedy determination of p ossession without bringing in extraneous matters. Anderson v. Heinze , 2002 ND 60, ¶ 11, 643 N.W.2d 24; see also Gasic , 2014 ND 85, ¶ 7, 845 N.W.2d 306. We have said that “the defendant may show the character of the possessory rights claim ed by the parties[,] . . . [but] the right to the possession of the real estate is the only fact that can be rightfully litigated unless damages or rent is claimed.” Spirit , 2017 ND 158, ¶ 4, 897 N.W.2d 334 (quoting Gasic , at ¶ 8). “[A] party seek ing damages in a summary eviction proceeding under N.D.C.C. § 47-32-01(4) is limited to those specified under N.D.C.C. § 47-32-04.” Spirit , at ¶ 4. [¶14] WCL concedes the district court properly vacated the default eviction judgment. Because both WCL and Miskin agree the court did not err by vacating the default eviction judgment, we do not consider the court’s juris dictional or factual basis for entering the default eviction judgment or its basis f or vacating it. [¶15] Once the district court decided the default eviction judgm ent must be vacated, there was nothing left for the c ourt to act on or make findings about. However, the court found that WCL breached the purchase agreement by failingto sign the deed
and close on the documents and that there was no evidence Miski n breached the
contract. The court also found WCL’s use of N.D.C.C. ch. 47-32 constituted wrongful eviction and Miskin is entitled to treble damages. “T he right to the

5possession of the real estate is the only fact that can be rightfully litigated unless damages or rent is claimed.” Aurora Med. Park, LLC v. The Kidney and Hypertension Ctr., PLC , 2010 ND 122, ¶ 8, 784 N.W.2d 151 (quoting Anderson , 2002 ND 60, ¶ 11, 643 N.W.2d 24). Whether WCL’s actions constituted wrongful eviction or it breached the purchase agreement did not affect whether Mi skin was entitled to possession of the property. These issues are not permissible i n a summary eviction action as counterclaims either. They must be brought in a separate action. Id. After the eviction judgment was vacated, there was nothing left to se toff or decide as a counterclaim, and it was error for the district court to make f indings about any potential counterclaims or claims raised in separate proceeding s. [¶16] It was not necessary to the summary eviction action for th e district court to find
that WCL breached the contract or conclude that Miskin was enti tled to treble damages for wrongful eviction, because those matters were not r elevant to the limited issues of rightful possession or a setoff to a demand made for damages or for rents and profits accrued. N.D.C.C. § 47-32-04; see Nelson v. Johnson , 2010 ND 23, ¶ 35, 778 N.W.2d 773 (holding a counterclaim for retaliatory evictionwas not appropriate in an eviction action); United Bank of Bismarck v. Trout , 480 N.W.2d 742, 749 (N.D. 1992) (holding the issue of whether the bank wrongfully retaine d funds did not affect appellants’ right to possession and could not be litigated in the eviction action, but a claim for wrongful forfeiture could be pursued in a separate ac tion). The court inappropriately made factual findings and conclusions of law ab out matters extraneous to the eviction proceeding. [¶17] We conclude the district court misapplied the law and abus ed its discretion by denying WCL’s motion to amend the judgment. We reverse the court’s order denying WCL’s motion and remand for the court to vacate its findings an d conclusions in paragraphs numbered 3, 7, 8, 9, 12, and 13 of the judgment vacating the default eviction judgment.

III

6[¶18] We have considered the remaining issues raised, and we con clude they are either unnecessary to our decision or are without merit. We re verse the district court’s order denying WCL’s motion to ame nd the judgment and remand for the court to vacate certain findings and conclusions in its judgment consist ent with this opinion. [¶19] Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen Gerald W. VandeWalle, C.J.

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