jeff-persigehl-and-samone-bodley-individually-and-on-behalf-of-the ( 2015 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0027
A14-0123
Jeff Persigehl and Samone Bodley,
individually and on behalf of the putative classes,
Respondents (A14-0027),
Appellants (A14-0123),
vs.
Ridgebrook Investments Limited Partnership,
Appellant (A14-0027),
Respondent (A14-0123),
MNS Investors, LLP d/b/a
Bar-Ett Investment Company, et al.,
Appellants (A14-0027),
Respondents (A14-0123),
American Utility Management, Inc.,
Appellant (A14-0027),
Respondent (A14-0123).
Filed February 2, 2015
Affirmed; certified question answered in the negative
Hudson, Judge
Concurring in part, dissenting in part, Peterson, Judge
Hennepin County District Court
File No. 27-CV-13-13415
E. Michelle Drake, Anna P. Prakash, Joseph Hashmall, Nichols Kaster PLLP,
Minneapolis, Minnesota (for Persigehl and Bodley)
Richard T. Ostlund, Brooke D. Anthony, Anthony, Ostlund, Baer & Louwagie P.A.,
Minneapolis, Minnesota (for Ridgebrook Investment Limited Partnership)
Mark A. Jacobson, Karla M. Vehrs, Lindquist & Vennum LLP, Minneapolis, Minnesota
(for MNS Investors LLP, et al.)
Bradley M. Jones, Jeffrey M. Thompson, George H. Norris, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for American Utility Management)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Larkin,
Judge.
SYLLABUS
Minnesota Statute section 504B.215 (2014) does not prohibit a landlord from
billing tenants for fees charged in connection with tenants’ utility bills and does not
impose a requirement that those fees be equitable in comparison to the costs of the
utilities services apportioned among tenants.
OPINION
HUDSON, Judge
In these consolidated appeals involving a certified question, a notice of related
appeal (A14-0027), and a separate appeal (A14-0123), we consider whether Minn. Stat.
§ 504B.215 prohibits a landlord from billing tenants for fees in connection with a tenant’s
utility bill; whether the statute imposes a requirement that those fees be equitable in
comparison to the cost of the utility service itself; and whether the district court erred in
dismissing an unjust-enrichment claim against the utility administrator who billed tenants
for the fees. We conclude that the certified question is important and doubtful and that
the statute does not prohibit landlords from billing tenants for the fees at issue here;
answer the certified question in the negative; and affirm the district court’s decision to
dismiss the unjust-enrichment claim.
2
FACTS
Jeff Persigehl and Samone Bodley (tenants) are the named plaintiffs of a putative
class action. At the time the complaint was filed, they resided respectively in two
apartment complexes: (1) Minnetonka Terrace, located in St. Louis Park and owned by
MNS Investors, LLP; and (2) Ridgebrook Apartments, located in Brooklyn Park and
owned by Ridgebrook Investments Limited Partnership. Both apartment complexes are
managed by Steven Scott Management, Inc. (SSM). SSM contracts with American
Utility Management, Inc. (AUM)1 to provide utility billing services for both complexes.
Because both apartment complexes are served by a single meter, AUM pays the total cost
of the utility, apportions the utility costs among the tenants, and then bills each tenant for
his or her share of the utility. Included in each tenant’s lease is a Water/Sewer Utilities
and Trash Addendum in which the tenant agrees to pay AUM the following fees: a new-
account activation fee, a monthly administrative fee, a late-payment fee, and a
convenience fee if the tenant pays by credit card (add-on fees). The legality of these add-
on fees is at the heart of this case.
In July 2013, tenants filed a class-action complaint, asserting two causes of action.
In count one, tenants allege alternative claims. First, they assert that Minn. Stat.
§ 504B.215 prohibits landlords from billing tenants for add-on fees. Second, tenants
allege that, if Minn. Stat. § 504B.215 permits landlords to bill tenants for add-on fees, the
fees billed by AUM violate Minn. Stat. § 504B.215, subd. 2a, which, tenants allege,
1
Ridgebrook Investments Limited Partnership, MNS Investors, SSM, and AUM are
collectively referred to as “landlords.” While AUM is not necessarily a landlord, this
opinion refers to it as a landlord for ease of reference.
3
requires that add-on fees be equitable and reasonable compared to the actual cost of the
utility service. In count two, tenants assert a claim of unjust enrichment against AUM.
Landlords moved to dismiss the complaint for failure to a state a claim upon which
relief can be granted, pursuant to Minn. R. Civ. P. 12.02(e). The district court denied the
motion to dismiss count one, concluding that, though Minn. Stat. § 504B.215 does not
prohibit landlords from charging add-on fees, the statute requires that those fees be
equitable and reasonable in comparison to the cost of the utility itself. The district court
granted the motion to dismiss count two, concluding that tenants’ unjust-enrichment
claim failed because tenants possessed a remedy at law. The district court subsequently
issued an order certifying the following question as important and doubtful:
Minn. Stat. § 504B.215 provides that “[a] landlord of a
single-metered residential building who bills for utility
charges separate from rent must predetermine and put in
writing for all leases an equitable method of apportionment
and the frequency of billing by the landlord.” Does this
provision include a requirement that any fees charged by a
landlord in connection with utility billing be equitable or
reasonable in comparison to the cost of services rendered or
the utility costs paid?
The district court also granted tenants’ motion for entry of partial judgment on the unjust-
enrichment claim.
Landlords filed a notice of appeal from the order denying the motion to dismiss
count one. Tenants filed a notice of related appeal from the same order, challenging the
district court’s conclusion that Minn. Stat. § 504B.215 does not prohibit landlords from
billing tenants for add-on fees. Tenants also filed a separate notice of appeal from the
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district court’s partial judgment dismissing count two of the complaint. This court
subsequently consolidated the appeals.
ISSUES
I. Did the district court properly certify the question of whether Minn. Stat.
§ 504B.215 requires that fees charged by a landlord in connection with utility
billing be equitable and reasonable in comparison to the cost of services rendered
or utility costs paid?
II. Does Minn. Stat. § 504B.215 prohibit landlords from billing tenants for add-on
fees in connection with a tenant’s utility bill?
III. Given the conclusion that Minn. Stat. § 504B.215 does not prohibit add-on fees,
does the statute require that those fees be equitable compared to the actual cost of
the utility?
IV. Did the district court err by dismissing tenants’ claim for unjust enrichment?
ANALYSIS
A party may take immediate appeal from an order denying a motion to dismiss a
complaint for failure to state a claim upon which relief can be granted if “the [district]
court certifies that the question presented is important and doubtful.” Minn. R. Civ. App.
P. 103.03(i). But we must dismiss an appeal involving a certified question if we conclude
that the district court erroneously certified the question as important and doubtful. See
Proprietors Ins. Co. v. Cohen, 451 N.W.2d 904, 906 (Minn. App. 1990) (dismissing
appeal because it was concluded that the district court erroneously certified question as
important and doubtful). We also must dismiss a related appeal from an order involving
a certified question if the underlying appeal is dismissed. Doe ex rel. Doe v. Columbia
Heights Sch. Dist., 842 N.W.2d 38, 48–49 (Minn. App. 2014). Here, landlords have filed
a notice of appeal from the district court’s order denying their motion to dismiss count
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one, and tenants have filed a notice of related appeal from the same order. Because we
cannot reach the merits of either appeal unless we conclude that the certified question is
important and doubtful, we address this issue first.
I
We independently determine whether a certified question is important and
doubtful. In re Welfare of Child of L.M.L., 730 N.W.2d 316, 319 (Minn. App. 2007). It
is the “exceptional case” that meets the criteria for certification. Jacka v. Coca–Cola
Bottling Co., 580 N.W.2d 27, 30 (Minn. 1998). “The certification process is not a
substitute for the normal appellate process nor a method for securing advisory opinions.”
Id.The importance of a question depends on whether the question (1) has statewide
impact, (2) is likely to be reversed, (3) is dispositive of potentially lengthy proceedings,
and (4) will impose substantial harm on the parties if it is wrongly decided. Siewert v. N.
States Power Co., 757 N.W.2d 909, 914 (Minn. App. 2008), aff’d by 793 N.W.2d 272(Minn. 2011). We give special consideration to “whether reversal would terminate
potentially lengthy proceedings.” Id. at 914–15. “A question is doubtful only if there is
no controlling precedent.” L.M.L., 730 N.W.2d at 319 (quotation omitted). But the fact
that the question is one of first impression is insufficient by itself to justify certification.
Id. To merit certification, the question must “be one on which there is substantial ground
for a difference of opinion.” Id. (quoting Emme v. C.O.M.B., Inc., 418 N.W.2d 176, 179–
80 (Minn. 1988)).
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The certified question asks us to consider whether Minn. Stat. § 504B.215 imposes
a requirement that the fees charged in connection with a tenant’s utility bill must be
equitable in comparison to the cost of the utility service itself. We conclude that this
question is important. Resolution may impact landlord-tenant relationships statewide.
Landlords indicate that AUM and similar companies provide these or similar services to
landlords throughout the state, and it is possible that similarly-situated tenants will file
suit. Moreover, if we reverse the district court’s decision regarding the merits of the
certified question, our conclusion would be dispositive of this litigation and result in the
termination of potentially lengthy litigation.
We also conclude that the certified question is doubtful. No controlling precedent
interprets the provisions of Minn. Stat. § 504B.215 relevant to this action. And there is a
substantial basis for a difference of opinion regarding resolution of this question, based
upon the parties’ reasonable, but conflicting, interpretations of the statutory requirement
that landlords predetermine an “equitable method of apportionment” to divide utility
costs among tenants. Minn. Stat. § 504B.215, subd. 2a(a)(2). Because we conclude that
the certified question is important and doubtful, we address the merits of the issues
presented by landlords’ notice of appeal and tenants’ notice of related appeal.
II
We address first the issue presented by tenants’ notice of related appeal because it
is possible that resolution of this issue would render it unnecessary to address the merits
of the certified question. Tenants argue that the district court erroneously construed
Minn. Stat. § 504B.215 to permit landlords to charge add-on fees in connection with a
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tenant’s utility bill. Tenants argue that the plain language of the statute prohibits the fees
charged by AUM and, in the alternative, assert that legislative history demonstrates that
the statute was not intended to authorize such fees.
Tenants’ argument raises a question of statutory interpretation, which this court
reviews de novo. Schwanke v. Minn. Dep’t of Admin., 851 N.W.2d 591, 594 n.1 (Minn.
2014). “The goal of all statutory interpretation is to ‘ascertain and effectuate the
intention of the legislature.’” Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d
826, 836 (Minn. 2012) (quoting Minn. Stat. § 645.16 (2010)). “The first step in statutory
interpretation is to determine whether the statute’s language, on its face, is ambiguous.”
Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010) (quotation omitted). In determining
whether a statute is ambiguous, we “construe the statute’s words and phrases according to
their plain and ordinary meaning.” In re Fin. Responsibility for Out-of-Home Placement
Costs for S.M., 812 N.W.2d 826, 829 (Minn. 2012). Plain meaning “presupposes the
ordinary usage of words that are not technically used or statutorily defined, relies on
accepted punctuation and syntax, and draws from the full-act context of the statutory
provision.” Occhino v. Grover, 640 N.W.2d 357, 359 (Minn. App. 2002) (citations
omitted), review denied (Minn. May 28, 2002).
A statute is ambiguous only if its plain language is subject to more than one
reasonable interpretation. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.
1986). If a statute is unambiguous, this court’s role “is to enforce the language of the
statute and not explore the spirit or purpose of the law.” Caldas, 820 N.W.2d at 836. But
if the statute is ambiguous, we consider “the factors set forth by the Legislature for
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interpreting a statute.” Christianson v. Henke, 831 N.W.2d 532, 537 (Minn. 2013)
(quotation omitted). We may also consider “substantive-policy canons,” which include
“statutory-based canons that include restrictions on the interpretation of statutory
exemptions and restrictions on the effects of repeal.” Occhino, 640 N.W.2d at 360(citations omitted). When construing a statute, we make every effort to give effect to all
provisions of the statute. Minn. Stat. § 645.16 (2014).
Minnesota Statute section 504B.215, subdivision 2, requires that “the landlord of a
single-metered residential building . . . be the bill payer responsible, and . . . the customer
of record contracting with the utility for utility services.” But this “subdivision does not
prohibit a landlord from apportioning utility service payments among residential units
and either including utility costs in a unit’s rent or billing for utility charges separate from
rent.” Id. If, as here, the landlord chooses to bill for utility charges separately from rent,
the landlord must “predetermine and put in writing for all leases an equitable method of
apportionment and the frequency of billing.” Id., subd. 2a(a)(2).
We begin by observing that the add-on fees charged here are a term of tenants’
lease, and that a lease is a form of contract. Metro. Airports Comm’n v. Noble, 763
N.W.2d 639, 645 (Minn. 2009). We also note that parties are free to contract to whatever
terms they agree, provided that those terms are not prohibited by law. Bobich v. Oja, 258
Minn. 287, 294, 104 N.W.2d 19, 24 (1960). And here, the statute contains no language
that expressly prohibits or otherwise references a landlord’s authority to charge add-on
fees. Minn. Stat. § 504B.215. We generally do not “read into the statute a requirement
9
that the Legislature has omitted.” Karl v. Uptown Drink, LLC, 835 N.W.2d 14, 19
(Minn. 2013).
But we have recognized, in certain instances, that the complete silence of a statute
on a particular topic renders the statute ambiguous. See Rohmiller v. Hart, 811 N.W.2d
585, 590 (Minn. 2012) (listing examples where a statute’s silence rendered the statute
ambiguous). When determining whether a statute is ambiguous because of legislative
silence, we consider “whether the statutory construction issue . . . involves a failure of
expression or an ambiguity of expression.” Premier Bank v. Becker Dev., LLC, 785
N.W.2d 753, 760 (Minn. 2010). If we conclude that the statutory construction involves
an ambiguity of expression, we may look beyond the language of the statute to determine
legislative intent. Id.Here, we cannot conclude that the legislative silence involves an ambiguity of
expression. The plain language of the statute does not prohibit landlords and tenants
from including in a lease a provision regarding add-on fees. Instead, the legislature has
chosen, via subdivision 2, to determine which party is responsible for making utility
payments to the utility provider in a single-meter building and to specify the methods by
which landlords may apportion utility service payments among tenants. Minn. Stat.
§ 504B.215, subd. 2. When a statute “is clearly limited to specifically enumerated
subjects, we do not extend its application to other subjects by process of construction.”
In re Welfare of R.S., 805 N.W.2d 44, 51 (Minn. 2011). We are not insensitive to
tenants’ claim that, in some instances, the add-on fees exceed the actual utility costs.
Nevertheless, nothing in the plain language of the statute prohibits a landlord from
10
charging additional fees. To conclude otherwise would require us to add language to the
statute imposing a prohibition consistent with tenants’ interpretation, and we do not
supply the omissions of the legislature through judicial construction. Genin v. 1996
Mercury Marquis, 622 N.W.2d 114, 117 (Minn. 2001). We therefore conclude that
Minn. Stat. § 504B.215 does not prohibit a landlord for a single-meter residential
building from billing tenants for fees in connection with the tenants’ utility bills.
Tenants argue that, under the doctrine of expressio unius est exclusio alterius,
because the legislature permitted landlords to apportion utility service payments among
tenants, the legislature prohibited landlords from billing tenants for add-on fees. See
Minn. Stat. § 645.19 (2014) (codifying that doctrine). The doctrine of expressio unius est
exclusio alterius means that the expression of one thing is the exclusion of another. In re
Welfare of J.B., 782 N.W.2d 535, 543 (Minn. 2010). Because this doctrine “generally
reflects an inference that any omissions in a statute are intentional,” it is applied only
when “the language of the statute supports such an inference.” State v. Caldwell, 803
N.W.2d 373, 383 (Minn. 2011). We cannot “read the enumeration of one case to exclude
another unless it is fair to suppose that [the legislature] considered the unnamed
possibility and meant to say no to it.” Id. (quoting Barnhart v. Peabody Coal Co., 537
U.S. 149, 168, 123 S. Ct. 748, 760 (2003)). The exclusion of a term is inferred only
when a term is omitted from a list of “other enumerated terms.” Id.We decline to infer from subdivision 2 that the legislature intended to prohibit a
landlord from adding fees to the cost of the utility apportioned to a tenant. This
subdivision does not contain a list of fees that landlords may charge. Rather, as set out
11
above, it governs a variety of issues regarding the process in which tenants are assessed
and pay for utility services in single-meter residential buildings. Minn. Stat. § 504B.215,
subd. 2. None of these issues addresses a landlord’s authority to bill a tenant for fees in
addition to the cost of the utility apportioned to the tenant. The more appropriate
inference to draw is that the legislature did not address the issue of add-on fees when it
enacted this section and did not intend for this section to govern a landlord’s authority to
charge those fees. We therefore conclude that the doctrine of expressio unius est exclusio
alterius is inapplicable.
Tenants also maintain that, if landlords are permitted to bill tenants for add-on
fees, the provision of the statute that allows tenants to review their utility bill is rendered
meaningless because the amount that the tenant pays differs from the cost of the utility
that the landlord pays. See Minn. Stat. § 504B.215, subd. 2a(a)(3). We disagree. We
generally construe all laws, if possible, to give effect to all of their provisions. Minn.
Stat. § 645.16. Here, the purpose of tenant review is to ensure that landlords apportion
utility charges equitably among tenants. To accomplish this, landlords are required to
provide the requesting tenant the “actual utility bill,” “each apportioned utility bill,” “past
copies of actual utility bills for any period of the tenancy for which the tenant received an
apportioned utility bill,” and the method selected by the landlord to apportion utility
costs. Minn. Stat. § 504B.215, subd. 2a(a)(2)–(3).2 A tenant who reviews the
apportioned utility bills in conjunction with the actual and previous utility bills is
2
Landlords must also provide prospective tenants “notice of the total utility cost for the
building for each month of the most recent calendar year.” Minn. Stat. § 504B.215,
subd. 2a(a)(1).
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therefore able to separate the utility costs from the add-on fees and determine whether the
landlord apportioned utility costs equitably. Thus, the plain language of the statute
comports with all other portions of the statutory scheme.
Finally, tenants assert that the legislature did not intend to permit landlords to
“overwhelm” a tenant’s utility bill with add-on fees, leading to an absurd result. See
Minn. Stat. § 645.17(1) (2014) (stating presumption that legislature did not intend absurd
result). But we may not look past the plain language of an unambiguous statute absent
the “rare case” when the plain language “utterly confounds a clear legislative purpose.”
Weston v. McWilliams & Assocs. Inc., 716 N.W.2d 634, 639 (Minn. 2006) (quotation
omitted). This is not such a case. Because we conclude that Minn. Stat. § 504B.215 does
not prohibit a landlord from billing tenants for fees in addition to the cost of the utility
apportioned to a tenant, we affirm the district court’s conclusion that these fees are
permitted.
III
Because we conclude that add-on fees are not prohibited, we next address the
merits of the certified question, specifically, whether the statute imposes a requirement
that those fees be equitable in comparison to the cost of the utilities services apportioned
among tenants. We review de novo questions that the district court has certified as
doubtful and important. B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 821
(Minn. 2003). Resolution of this certified question raises an issue of statutory
interpretation regarding subdivision 2a of section 504B.215. This subdivision requires
that landlords who bill for utility charges separately from rent “must predetermine and
13
put in writing for all leases an equitable method of apportionment.” Minn. Stat.
§ 504B.215, subd. 2a(a)(2). Tenants argue that the phrase “equitable method of
apportionment” requires any add-on fees charged by a landlord to be fair and reasonable
when compared to the actual cost of the utility service apportioned among tenants.
The statute does not define the phrase “equitable method of apportionment”; thus,
we assume that these terms are used according to their plain and ordinary meaning.
Occhino, 640 N.W.2d at 359. Because the term “equitable” modifies the phrase “method
of apportionment,” the equitable limitation applies to add-on fees only if the phrase
“method of apportionment” encompasses a landlord’s decision to bill tenants for add-on
fees.
For several reasons, we conclude that the phrase “method of apportionment” does
not relate to a landlord’s authority to bill tenants for add-on fees. First, subdivision 2 of
the statute requires landlords to select one of two processes to accomplish the
apportionment of utility service payments among tenants: (1) including the utility cost in
the tenant’s rent; or (2) billing the tenant separately for the utility charge. Minn. Stat.
§ 504B.215, subd. 2. Subdivision 2a imposes additional requirements on a landlord who
chooses to bill tenants separately for utility charges. Like subdivision 2, subdivision 2a
governs a landlord’s authority to apportion utility service payments among tenants, but it
is silent regarding a landlord’s authority to bill tenants for add-on fees. We are required
to interpret various provisions of the same statute in light of each other. Baker v. Ploetz,
616 N.W.2d 263, 269 (Minn. 2000). Consistent with our interpretation of subdivision 2,
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as discussed above, we therefore conclude that the legislature did not intend for
subdivision 2a to govern the issue of add-on fees.
Second, our interpretation of subdivision 2a is informed by the legislature’s
decision to expressly limit or restrict the types of fees that landlords may charge in other
sections of chapter 504B. For example, the legislature has limited the late fees that a
landlord may charge to eight percent of the rent payment. Minn. Stat. § 504B.177(a)
(2014). The legislature has also regulated the use of applicant-screening fees. Minn.
Stat. § 504B.173 (2014). Had the legislature intended to regulate fees associated with the
apportionment of utility charges separately from rent, it easily could have added to
subdivision 2a similar restrictions governing the use of such fees. The legislature’s
failure to do so demonstrates that it did not intend for this subdivision to regulate a
landlord’s authority to charge add-on fees.
Finally, while not dispositive of our analysis, we are concerned that tenants’
proposed interpretation of the subdivision would require courts to act as policymakers.
The determination of the appropriate level of add-on fees that a landlord may charge
likely involves consideration of several factors, such as the respective needs of the tenant
and landlord, the services provided by the entity charging those fees, the fairness of the
fees, and the reasonableness of the landlord’s costs and profit margins. Consideration of
these factors and the competing interests of landlords and tenants requires assessment of
public-policy alternatives, a deliberation best left for the legislature’s attention. See
generally Minn. Stat. §§ 504B.001 to .471 (2014) (extensively regulating landlord-tenant
relationships); cf. In re Request of Interstate Power Co., 574 N.W.2d 408, 412–13 (Minn.
15
1998) (stating that utility-rate making is a legislative act because it requires consideration
of “both cost and noncost factors and making choices among public policy alternatives”
(quotation omitted)). For these reasons, we conclude that add-on fees are not subject to
the equitable limitations that govern a landlord’s ability to bill for utility charges
separately from rent, and we answer the certified question in the negative.
IV
Finally, tenants assert that the district court erred in dismissing their unjust-
enrichment claim against AUM. We “review de novo the district court’s grant of a
motion to dismiss under Minn. R. Civ. P. 12.02(e).” Sipe v. STS Mfg., Inc., 834 N.W.2d
683, 686 (Minn. 2013). A pleading should be dismissed “only if it appears to a certainty
that no facts, which could be introduced consistent with the pleading, exist which would
support granting the relief demanded.” Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn.
2010) (quotation omitted). “The reviewing court must consider only the facts alleged in
the complaint, accepting those facts as true and must construe all reasonable inferences in
favor of the nonmoving party.” Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d
550, 553 (Minn. 2003).
A plaintiff may recover under a theory of unjust enrichment only when the
plaintiff establishes that the defendant retained a benefit that was “not legally justifiable.”
Caldas, 820 N.W.2d at 838. Because we have concluded that the benefit that AUM
received was not prohibited or limited by law, we also conclude that tenants are unable to
demonstrate that AUM’s retention of the add-fees was not legally justified. We therefore
affirm the district court’s decision to dismiss tenants’ unjust-enrichment claim.
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DECISION
Because Minn. Stat. § 504B.215 does not prohibit a landlord from charging a
tenant fees in addition to the cost of the utility apportioned to the tenant, and because the
statute does not require that those fees be reasonable and equitable compared to the cost
of the utility apportioned to the tenant, we affirm the district court’s conclusion that those
fees are permitted, answer the certified question in the negative, and affirm the district
court’s decision to dismiss tenants’ unjust-enrichment claim.
Affirmed; certified question answered in the negative.
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PETERSON, Judge (dissenting in part)
I respectfully dissent from the majority’s decision in section III of its
opinion answering the certified question in the negative.
Minn. Stat. § 504B.215, subd. 2 (2014) states that the landlord of a single-
metered residential building is not prohibited “from apportioning utility service
payments among residential units and either including utility costs in a unit’s rent
or billing for utility charges separate from rent.” But, under Minn. Stat.
§ 504B.215, subd. 2a(a)(2) (2014), a landlord who bills for utility charges
separately from the rent “must predetermine and put in writing for all leases an
equitable method of apportionment and the frequency of billing by the landlord.”
When a tenant is billed a fee solely because a landlord chose to apportion utility
service payments among residential units and bill for utility charges separately
from the rent, that fee is part of the method of apportionment chosen by the
landlord; the apportionment is not accomplished without the fee. And if a fee
billed as part of the method of apportionment is not equitable, the method of
apportionment is not equitable. Therefore, I would answer the certified question
in the affirmative and remand to allow the district court to decide whether the
methods of apportionment predetermined by the appellant landlords are equitable.
D-1