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VND12/19/2003
insurance and to reimburse VND for the pro-rata cost for those months when the insurance was not paid.
[ ] On August 9, 2002, VND gave Leevers written notice of default, alleging Leevers was in default for failing to pay common area maintenance charges, for unilateral setoff of rents due, and for failing to pay its pro-rata share of liability insurance. On September 5, 2002, Leevers responded to the notice of default, stating it was applying an acknowledged credit due in maintenance charges and denying it owed a pro-rata share of VND's liability insurance under the lease. On September 10, 2002, notice of intention to evict was served upon Leevers; no demand for damages or for rents and profits was made with the notice. Leevers did not vacate the premises. VND brought a suit against Leevers for summary eviction. A hearing on the motion for eviction was held on October 24, 2002.
[ ] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.
II.
[ ] VND argues Leevers was precluded from asserting any counterclaims or affirmative defenses in this summary eviction action because it demonstrated Leevers failed to pay rent and otherwise materially breached the lease.
[ ] "`The interpretation of a statute is fully reviewable on appeal.'" State v. Norman, 2003 ND 66, * 14, 660 N.W.2d 549 (quoting Overboe v. Farm Credit Servs., 2001 ND 58, 9, 623 N.W.2d 372 (citation omitted)). "`Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute.'" Id.
[ ] Section 33-06-04, N.D.C.C., provides:
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 damages arising by reason of the defendant's possession. No counterclaim can be interposed in such action, except as a setoff to a demand made for damages or for rents and profits.
[ ] "The purpose of the no-counterclaim provision in the eviction statutes `was to get a speedy determination of possession without bringing in any extraneous matters.'" Anderson v. Heinze, 2002 ND 60, * 11, 643 N.W.2d 24 (quoting Nomland Motor Co. v. Alger, 77 N.D. 29, 31, 39 N.W.2d 899, 900 (1949)). See also South Forks Shopping Center v. Dastmalchi, 446 N.W.2d 440, 443 (N.D. 1989).
[ ] "In an eviction action, the defendant may show the character of the possessory rights claimed by the parties." Anderson, 2002 ND 60, * 11, 643 N.W.2d 24 (citation omitted). However, "`the right to the possession of the real estate is the only fact that can be rightfully litigated unless damages or rent is claimed.'" Id. (quoting Vidger v. Nolin, 10 N.D. 353, 354, 87 N.W. 593, 593 Syllabus 3 (1901)).
[ ] The right to possession in this case depends on whether or not Leevers failed to pay rent and whether or not there were any material breaches. The evidence regarding the strained relationship is important in determining whether a material breach has occurred. See generally Restatement (Second) of Contracts § 241 (1977). Further, because whether rent is paid goes to Leevers' right of possession, affirmative defenses and counterclaims regarding the payment of rents must be allowed. We conclude the district court did not misapply the law in this case by allowing evidence of the strained relations between Leevers and VND and by allowing Leevers to presen
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