Smith v. Broadway Flats

An example of Law-less anarchy in American juris-imprudence

Loscil – Endless Falls




Foundational Principles of American Government
Structure of the Government according to such principles
The Legal System
Distinction between Government and Law/Legal System
Case law
Thompson ReUters / legal publication
Smith v. Broadway Flats
Introductory Background
Court of Appeals
Professional Responsibility Complaint
What the lawyer did, why it’s an issue in this case
Why unpublished, goes against Case law principles
Who this affects and how
Stupidity, Bias


I sincerely feel it is my duty to testify to you about a matter within the judicial system.

The goals, hopes and prayers of this statement are many, including informing the public enough that the people’s knowledge of the legal system and the structure of American governance is refreshed and renewed…to avoid many of the distortions from laypersons (and even professionals) that can effectively corrupt the propriety of an otherwise reasonably sound system. Following an introduction to and overview of American governance and jurisprudence, an explanation of a legal case that I had as an American lawyer will be explained so that we all might grow in understanding and perhaps wisdom. I will explain as briefly as possible, though many of the details are necessary and nothing relevant will be left out.

I. Foundational Principles of American Government

We all know, or should know, that the American government is structured according to the Constitution, a document written in the 1780’s by people who had felt a dire need to form a new type of government after strenuous periods in the British monarch-parliamentary rulership. Idealistically, the founders believed in mankind’s equality and freedom to rule themselves to a republican (electorate/representative) degree.

Even though people will suggest the founders were racist or oppressive, the overwhelming majority of people then and now and at any time in between agree that it was an honorable move to shift global governance from monarchical rule to something more democratic because of many grievances and abuses of power that people agreed needed revolt. Societies change over time, norms change, interpretations of moral behavior change. This is particularly true in a world of intermingling cultures. It has generally been “normal” for most of human history that men were considered leaders and rulers and women were more responsible for domestic matters…a vague statement that is undeniable. It is relatively modern on the human existential timeline that people, generally, are more independent and individual survival is made more possible by overarching institutions that support such social systems where marriage and family life isn’t required by economic reality. Through the “industrial revolution” (as historians term it) the productive capacity of society greatly increased (think Adam Smith’s famous pin-making analogy) and this led to increased quality of material life.

America is a land where the people believe in “diversity and inclusion” because they dig deeper into their souls and know that there is something higher and more mysterious about all existence than the nuance of skin tone, verbal intonations, and human-crafted narratives about the meaning of life. As such, the people who call themselves Americans believe that all people have the right to pursue their hopes and dreams, using the parts of the physical world or other resources that they accumulate to do so. Unfortunately and unknowingly, people give up immense aspects of their identities to pursue a “free society” where people are not hindered by many of the characteristics that were considered factors of oppression throughout much of history. The road to such thoughts on social “progress” was paved by the founders, whether they were racist or not…they lived in their own social setting and it’s something we can probably never fully understand, not without sacrificing so much of our own lives to examining it. Thus, based on the nature of time, memory, and wisdom, I suggest trying to live on faith…in what exactly, perhaps some good, no, Great! mystery. A mysterious thing with human qualities and things that transcend human understanding too.

America is a nation whose founders drafted the Constitution to serve as the structural basis of social life and human governance during a period of “enlightenment” about the nature of human beings, the purpose of economics, and the deep meaning of this planetary existence. Specifically, the Constitution was written within the context of a complicated history involving monarchical England, whose rule over the land and people was manipulated by a powerful monarchy and parliament. The kings repeatedly raised taxes and used military power to accumulate economic power, corrupting the already unstable feudal system. This—in part with various philosophical and social discoveries from thinkers like Montesquieu, Marx, Engels, and Weber, and countless others in fields of theology, philosophy, and physical sciences—is the purpose the founders decided to divide the government into three branches and then set “checks and balances” between them. It is a governmental structure that billions of people across this planet adhere to and allege to believe in, in sincere thought or varying degrees of compliance…they call it democracy or a democratic republic or whatever, without really knowing what it is or what the heck is going on. In other words, any idea that humans are anything more than bodies living in a physical world is metaphysical, and therefore obscure.

So, why then do we draft documents that establish governments? We all benefit from some forms of civility…that is when we behave in a matter and according to principles that we all socially contract to. Usually, people do this because they have some history and understand the meaning and context of their compliance. In modern America (the legal system especially), nobody seems to know much of anything about what the hell is going on with the government or what it is or how it fits into to the larger context of human events. Regardless, it is important to mention this so that we both know and acknowledge that calling ourselves citizens, putting our faith into the currency, into the idea of democracy, and even showing up to some court room to partake in some “trial” (or sleazy circus act) is something we do out of civility and understanding, amicably, and on sincere notions of justice. Without the principles this giant charade the people play (pretending to be fellow “citizens” and conduct “trials”) is meaningless crap. One of the whole reasons we have “litigation” is because of the idea that through financial exchanges based on compliance with the law, justice can slowly but surely prevail as the system evolves, what is proper conduct evolves, and more importantly, we adhere to judgements and the law instead of being like savage animals. Human history is riddled with physical violence as a means to pillage to survive. Some wars are less dishonorable than others, such as the ones fought in England with Cromwell and many other characters which led to the entire purpose in “separation of powers”.This leads me to explaining the following, because it has everything to do with this tiny-ass bullshit case…the lawyers don’t even know how the law really works or why. Even American politicians are surprised when the people invade their buildings, failing to realize that they don’t run the country in their own right, but on behalf of the people. This is the real reason for the 2nd Amendment, not so people can possess guns to protect their own property…but so the people might have the power to overthrow a domineering government. This is directly tied to the declaration of independence, “when a government is [grievously corrupt, asinine, plainly cruel, against the will of the people], it is the DUTY of the people to overthrow it.”

II. Structure of the Government according to such principles

The Constitution the founders drafted creates three branches of government for the purpose of balancing power and purpose. The branches are the legislative, judicial, and executive. The executive is held by the President, and in modern times the executive branch creates many of the organizations that we all know, like the CDC. The laws are made by the legislative branch, and the judicial branch is where the lawyers argue why or why not the laws have been violated. The judges are supposed to interpret laws with regard to the intention of the legislature, in accordance with the proper procedure of the law. The procedures of law are designed from a long history in a way that is supposed to provide “justice.” Justice is obviously a very vague and obscure term, because human relations cause our intentions and beliefs to clash once in a while, sometimes seemingly existentially.

Finally, the Constitution designs the land and people into “States” which have ultimate power over anything that is NOT granted to the Federal government (Congress and the President) with clauses/words in the Constitution. So, in reality, each State is supposed be almost like their own, independent countries, held together (unionized) with the other states by certain rules and policies by the federal government.

The Constitution says that Congress (federal) can regulate the states only when the thing they are regulating affects “interstate commerce.” This has become commonly called the “commerce clause” and is a contentious area of the law because of its obscurity. Basically, commerce can mean anything…we live in a world where economics and finances rules darn-near everything, so how can we say anything that anyone does ever has no impact on interstate commerce? We can’t…human creativity will always be able to create some story where there is an economic impact on a neighboring state, thus effecting “interstate commerce” and giving the federal government the power to control the States. This is where States with some political, religious, or social ideology get extremely angered or frustrated with the federal government or president, because they are being told what to do when they are supposed to be free members of the union but it turns into being submissive to something they heavily disagree with.

It is at this point that I would like to remind the reader that, as a former sociology student, that human-made social structures and institutions will always end up being corrupted or inadequate, manipulated, or misunderstood by new generations—America is founded not merely on formal social structures, but on genuine faith in the goodness of human spirit. This is part of the reason that I write this, so that you understand the absolute importance of maintaining the integrity of the American government, because we do not have a replacement, and it’s actually quite a great government, particularly when compared with most of the other governments throughout human history.

For anyone who is extreme enough to want to change it or destroy it, keep this in mind: while there are fundamental issues facing the current situation with the people of the world and their relationship to government, the United States and its structure must be held securely, because anything less than a smooth transition to a new form of government will most certainly lead to devastation like the deceased of World War II cannot imagine…a lawless world of billions of people with limited resources and an unregulated economy. Nobody is insane enough to accept this, spite some violent extremists who have no legitimacy for their views which lack universal love.

This brings me to my experience with “the law” and the legal proceedings which brings about this statement. I don’t really know where to start so I’ll begin with a list of who this message applies to.

Generally speaking, this applies to all American citizens because it entails an explanation of our legal system and its flaws to which the civility of our lives depends. Specifically, lawyers and persons who work within the legal system should understand. Finally, renters: anyone who rents a piece of real estate should be concerned. That is obviously a large base of people, so this essentially applies to almost anyone.

Why does this matter?
People need to know, and this writing is intended to educate and hopefully prevent some corruption and distortion from the true nature of our legal structure…by explaining how it is supposed to work.

What is this all about?
I am a new attorney, and I handled a case where many of the established rules were broken and it scares me and it should scare you. If you think that our legal system isn’t flawed (in that protects you), it’s important to take a look at this and see the ways in which it may not. I will explain why this is not an ordinary complaint to losing a case, and how the deception of opposing counsel coupled with apathy and self-righteousness, possibly even racial bias, impacted the outcome of the case.

What is this case about?
The case was supposed to be simple. It is about something that happens every day in our state and country, a landlord withheld a security deposit of a tenant. It sounds like a routine case, and usually they are and usually they settle or the landlord gets to keep the money because the tenant doesn’t take the time or energy or spend money to seek relief. Landlord’s know this and sometimes take advantage. Minneapolis is known to have tedious relations between landlords and tenants, particularly in less affluent parts of the community. Fortunately we live in a world where most people are pretty decent in that their reasonability with regards to matters such as this is more than tolerable, its fair or beyond fair.

It is my belief that most rental units will have some level of damage that landlords might easily be able to justify some withholding—in that there are some things they cannot routinely go fix and perhaps have to purchase a part or pay some outside worker to come work on. However, the situations in which in a landlord is entitled to the entire deposit will be quite rare unless the apartment is totally trashed and will require cleaning, repair, and replacement of appliances and/or fixtures that have been damaged solely to the tenant and not some flaw with the actual part such as a sliding window that is difficult to open and close without a hinge being broken. Which brings me to how this case came into being . . .

Smith v. Broadway Flats

The public record can be found in the Minnesota Court of Appeals, case no. A20-1522, titled Smith v. Broadway Flats. The District Court record can be found at 27-CV-19-19452.


I won’t be available for comment anymore…I absolutely believe I am accurate in my assessment and believe that this was an atrocious display from the law on a matter that should have been so easy to resolve at numerous times throughout the case from the beginning through the final judgment and I’ve lost all faith in the legal system and no longer wish to practice law — after having attended and paid for law school and been fed all the rules and reasons for the system that, in the real world, works very differently (judges can rule using power and break all the rules in place to restrain their power and force honest reason and fair decision-making).

What you won’t find in the documents is the truth, in part because the “real evidence” is not part of the record. The term “real evidence” is a legal term (See Black’s Law dictionary) that refers to primarily physical evidence or some evidence that is undeniable in some way. This is in direct contrast to evidence that might weigh heavily on the circumstances of a case, but is metaphysical in nature. In my case, the testimony of the landlord was metaphysical…the lawyer deliberately created a narrative (which they are allowed to do) that utilized/maximized the testimony of the witnesses (landlords) in such a way that created an illusion (deception, violating perjury laws and candor toward the tribunal — dishonesty to the court, while under oath). The reason they did this is because the physical evidence, the photographs the landlord took of the apartment, didn’t really show significant damage. So, the lawyer put a number of people who worked at the apartment on the witness stand to give the appearance of constituting real evidence, persuading the judge to rule in their favor and ignore the disparity between their claims and the real evidence.

In law, there are many rules about evidence and how it is presented. I hope that some research on this case and what happened can explain how the legal system can be corrupted by witches who are crafty…but how the worst part is when an attorney, a member of the legal community is supposed to be held to the highest levels of integrity, do things that are illegal at worst, and shady, sleazy, deceptive if not outright illegal.

Keep in mind that this does not happen often, and the overwhelming majority of lawyers and judges are honorable people. (albeit sometimes apathetic)

The main problem that happens when a lawyer lies and uses deception is that they might “procure a judgement on fraud” which is that they are successful in the courts based on their fraud. This means that even the judge—despite what the opposing attorney is trying to explain—fails to recognize the fraud being portrayed to them. This is what I believe happened in my case…and I was elated when I received the news of the panel that was selected upon appeal, because they were highly educated and experienced members of the law, having attended Harvard/Yale and the same law school that I attended in St. Paul, William Mitchell.

I found my client when Covid started and I was out of work. I play pickup basketball for fun, and we played a few pickup games together over the course of a couple hours. We started talking about basketball and the different ways that players from different regions play. We both agreed that Chicago has lots of great players who have moves to get to the basket that are more like gymnastics than fundamental basketball, which is really cool. Even world class fundamental basketball has a hard time guarding players like Derrick Rose or Ja Morant. So anyways, we asked each other about what we do or what our lives are like and I told him I was a new attorney just staying alone in my apartment to see how the pandemic will go, since it was just beginning at this time. He immediately mentioned to me a legal case that he had (as people will always do), and of course I was skeptical and didn’t want to take it on. He said his landlord kept his security deposit and was harassing him and made it harder for him to move into his new apartment. I was skeptical, assuming he probably left the apartment in a poor condition and probably didn’t have a claim and was probably being super biased, which everyone in the world does and it bothers the heck out of me…I can’t stand how ego-centric people’s views of the world and reality are. I like humility and kindness and honesty and sincerity and softness.

Nevertheless, I slowly verified some things he was telling me. He told me that he has a “move-out statement” and I told him I would take a look at it and give him an opinion. He informed me that trial was set for a couple months out, but that he already had an attorney that was going to appear for him through a free legal services agency, which I knew existed because they never shut up about it at law school. So, I gave him my number and met with him to take a look at the move-out statement which included the photographs and details of the deductions. The photographs didn’t show the actual things that were listed in the expenses that much. The damage didn’t seem very significant. Knowing that people often trash their apartments and leave landlords in a really bad spot, I told him that I would at least try to get a settlement. The reason was because he was unrepresented and the law doesn’t like that, because its an unfair disadvantage when one party has legal representation and the other doesn’t. It’s an issue that isn’t illegal or improper, so its allowed but usually the judge will at least inform the pro se (self represented) person about it before proceeding.

I met the eventual client a mere week before trial. Covid-19 had struck the mainland and I was not working at all, just staying in my apartment and playing basketball by myself once in a while to get exercise. We met and were talking about basketball, and since he is from Chicago, we were agreeing about how Derrick Rose is probably the best player ever but won’t get credit cause he doesn’t have the championships and had several unfortunate knee injuries. We actually moved on to some talks about the show Ancient Aliens on Discovery Channel and eventually it came out that I was a lawyer. I don’t really feel like a lawyer, nor do I care to be. He told me about his situation with a landlord and how he went to conciliation and has a court date coming up. I assumed it was probably a reasonable withholding of his deposit cause the place may have been trashed or who knows what was wrong with it. I also just assumed it was no big deal, a measly few hundred dollars is nothing to make a fuss about.

He mentioned that he already had an attorney from a free legal services agency in Minneapolis, but that he hadn’t heard from them in a couple weeks. I didn’t want to take the case at all, and never felt obligated to. He said he had this move-out statement some other documents and photographs of the case. I told him if he wanted I could look at the documents if he’d meet me back at the court the next day some time.

He did. He came to the court when I told him I would be there shooting around. He handed me a packet of documents, a whole pile of stuff from conciliation court, legal services, copies of communications between him and the landlord, and the move-out statement with the deductions, receipts, screen shots from purchasing replacement bathroom fixtures and refrigerator parts. At first glance, it appeared like a professional operating procedure and the right thing to comply with corporate/legal protocols by issuing this statement and providing legitimate reasons to the tenant for withholding their deposit.

Then when I looked at the photos and the deductions, I was questioning the validity of it all in my head. It seemed plausible, but the photos didn’t really show much, so I was wondering how they would constitute sufficient evidence. I was smart enough to know that the physical evidence was and should outweigh other forms of evidence. They claimed the fridge was in such bad shape and one of the documents said there was food left in the fridge, but the photo showed a near empty fridge and only a single can of cat food which would be so easy to pick up and throw in the trash. It was otherwise clean and one of the parts they purchased was actually in the photo and in tact. It started seeming just a little off, but at the time, I didn’t really know the law or what was reasonable under these circumstances.

What made it more odd is when I found out that they withheld a lot, almost the entire deposit of $799…keeping $700 and returning $99 plus interest which I thought was a little bit strange (like, if it is damaged that much, why give back anything?). When I looked closer, I realized that the deductions didn’t even match any of the photos…specifically, they withheld the most for the carpet cleaning, but there was no photo of that…just an invoice from the cleaning company with a bunch of different units listed including the one of my client.

I asked him more about what happened at conciliation court and that they offered him a small settlement of like $200 or $250 dollars and I asked if he had his legal services attorney handle that for him and he said no. So I knew conciliation was a little unfair because he was unrepresented going up against another attorney who served as the landlord’s in-house counsel, meaning that he was the attorney who helps the entire apartment complex on a daily basis and gets paid directly by them. In other words, he wasn’t retained by the landlord for this specific instance. I realized that there was a chance they were taking advantage of him because he was unrepresented and doesn’t know the process. Like, they couldn’t offer him nothing in front of the conciliation referee because the evidence would be contrary to that, but maybe it wasn’t very much and regardless, it is up to the party to decide if they will accept an offer or want to risk trial.

Being a lawyer, I knew that parties can settle at pretty much any time up until jury deliberations or the judge takes the case into consideration. I also am fully aware that settlements are generally a great thing, because trials are “all or nothing” essentially where each party is adamant about their legal standing and risks it all on that. So, for example, even if the client in my case was offered $699 and refused to accept that offer because he felt legally entitled to the full $700, he would be able to refuse and go to court to prove his case and get paid the full amount. I also knew that there was almost certainly going to be a better chance of a decent settlement if he had an attorney represent him, even if it was merely facial.

So since the client had told me that he had another counsel and because I didn’t want to take the case, I waited until the Friday before the Monday court date, telling the potential client that if he doesn’t hear from his other attorney (who was scheduled to talk with him that day) that I would consider it. I told him that I think it is highly likely that we get a settlement that is slightly higher than what he was offered before because it makes no sense why the other side would want to risk a trial considering what I had just found out: my client informed me after I had seen the photos that there is a “double damages” clause in the relevant statute. I had no idea until he told me, and I didn’t even know what the statute was. In fact, the statute also contains a “bad faith” penalty of $500 when landlord’s withhold a security deposit and cannot justify it’s legitimacy to the court. When I got home and looked at the statute, I realized the legislature had recently redrafted this entire statute to include both of these elements.

I told my client that I really don’t think that it matters that there is this additional penalty since his case will almost certainly settle now that he will have an attorney assisting him. We negotiated a contingency fee agreement, where I would be entitled to 25% of whatever settlement I was able to get. Being my first real case, I figured I wouldn’t charge much and just do my best to resolve it quickly. I literally thought that we would meet and probably settle in 5 minutes before trial and I’d be a hundred bucks richer and the client would go home happy with a few hundred of the 700 back. That was well over a year, an appeal, and petition to the supreme court ago.

Friday came, and it became clear that the attorney who was supposed to take his case had been long gone, fleeing the state due to the pandemic. We all know lawyers look out for number 1, which ought to scare the hell out of anyone at how our society is set up where they are considered so prestigious and held in such high regard with how much faith we entrust in them. I kinda giggled at the thought of an attorney committing to a client and when something else came up, how quickly they abandoned that thought.

Throughout the entire case, I kept close a book titled “Selected Standards on Professional Responsibility” from 2016 because I wanted to make sure that I would be able to justify all of my actions and also just to comply with propriety to the best of my ability. The rules of professional responsibility for attorneys are generally straightforward, but in reality can be very complicated. The truth of the matter is that the world/society has “norms” which, if followed, are almost always going to result in compliance…but that deviations are totally common, too, and they might require more nuanced precise actions to ensure that certain rules are complied with so as not to do something such as operate despite a conflict of interest (without informed consent) or make a misrepresentation to the client or tribunal. In my case, I was mostly concerned with being able to ensure that I would be complying with the “diligence” requirement of the rules which means that lawyers have to be capable of handling a case, either through expertise in that area of the law or the law permits attorneys to take new or unique cases if they can become reasonably proficient in the relevant matters so as to provide competent representation to the client. For me, I knew that it wasn’t that difficult of a body of law, that I would be able to do some legal research, and most importantly: that my client was probably going to lose if he went in there unrepresented / by himself. In other words, a rookie lawyer like me had a much better chance than if he was by himself, so I let him know that I am new and some dumb error could cost him the case, but that I would try my best. He understood and was grateful.

I knew that opposing counsel was going to have to relay any settlement offer I went forth with, so I was going to have to examine the case further, do legal research and find out what factors have typically affected ordinary wear and tear cases and how the courts have already decided security deposit cases and treated landlords. It didn’t take long to become aware that there is no case law that attorneys can cite as authoritative because the courts never publish cases on this issue. I looked at some legal websites (law firms) to see what constitutes ordinary wear and tear and also found HUD’s website which described some nuanced differences in what is versus what isn’t “beyond ordinary wear and tear.”

Specifically, I found several cases where the courts appeared very “tenant-friendly” in that landlords couldn’t withhold for much. There was a Footlocker case which dealt with a commercial rental that was in really bad shape and the landlord tried to put it on Footlocker’s abuse of the property, but they had been there a long time paying rent (20 years), and used the property in a fashion that the landlord knew, and it would have been ‘pressing’ to hold the tenant to that damage because they can’t have to be so careful or cautious so as not to damage the property at all while running their business. I guess there was something about the foundation that was needing to be replaced because it was cracked from wheeling goods over it routinely.

The next case I found was one where it was written in the lease that the tenant was not allowed to have pets upstairs or it would be a violation. The landlord kept the deposit because it somehow came to their knowledge that there was in fact pets upstairs. The court ruled in favor of the tenant despite the contractual violation because the fundamental reason for a security deposit is actual damage, and even though the contractual condition was violated, there was no actual harm to the unit because of it. It seems a bit like a no-harm, no-foul rule, but in reality is a bit more nuanced because landlords cant change the law and how it functions through their own contractual morphing…or they can but it may not be upheld by the courts, though it could. The law is designed to provide methods that good lawyers can work with to provide comfortable legal protection with high likelihood of being upheld by courts and certain things become irrelevant when people deviate from these principles.

I had met with the client again before the scheduled trial to make sure that I had everything to prepare for potential trial. I didn’t have a very good set of questions for taking testimony, because I didn’t really know what to ask since the burden of proof was on them. So it was going to depend merely on having a trial and explaining to the judge that the actual physical evidence doesn’t show much, and certainly not enough to constitute the amount withheld. I also planned to explain that there was not one instance of (1) physical evidence (2) damage shown (3) expense related to repairing this particular item (4) that exact amount withheld. In other words, the landlords claims were contradictory and unrelated to their proof…a mere hodgepodge of allegations of damage. Since the burden of proof is on the landlord, this should be pretty obvious and the judge should rule in our favor and we should likely awarded double damages.

As far as the “bad faith” penalty portion of the statute, it appears to be almost automatically imposed when a landlord fails to justify their withholding to the court. The statute is ambiguous as to whether the full amount of $500 is mandatory. Basically, it leaves room for the judge to determine whether to apply the full amount or nominal damages based on the circumstances. It was increased by the legislature in recent years, and used to be $250. The legislature obviously recreated this statute to hold landlords accountable, “keeping them honest” so to speak.

The interesting thing about the statute is that it plainly places the burden of proof on the landlord, which goes without saying. However, when filing a lawsuit to retrieve a security deposit, the tenant is technically the plaintiff…but in most other cases, based on the way the law works, the burden is on the plaintiff. Typically a plaintiff presents their case and addresses the evidence in more detail and then the defendant goes. However, since the landlord provided the evidence, it would be (and was in reality) up to the plaintiff to make claims against this evidence in ‘opening statements’ at trial.

Getting more details about what happened, the client explained that the landlord had been entering his apartment. The landlord did not give him prior notice…neither was the client-tenant given post-notice that he was there. When my client told me, he was so angry and aggrieved about it. I know to be skeptical of clients because attorneys have many-a-time gone to court and found out that their client was fibbing or embellishing. I suppose some landlords are a bit casual about properties and some might assume they have authority to enter people’s apartments because they might not have ill-intent in their heads. Nevertheless, entering an apartment without notice is trespassing, a crime…abusing the authority of maintaining the keys. After all, in the modern world, many people rent and landlords have access to what traditionally is considered peoples’ homes. Whether it was true or not, I had to convince my client that he had moved out and should move on and that we will just focus on getting his security deposit back or at least part of it. It had been a while since he moved out and it would not be relevant if the focus of the case was “the law” applied to “the facts” which was simply and purely about “ordinary wear and tear” and whether the landlord could show enough proof.

Another issue in this case was these “landlord verification” forms that the client had shown me. The landlord apparently uses these forms to provide some prior notice to tenant’s vacating so they can give some advance notice to new landlords as well as the tenant about the tenancy so they can know if the tenant is rent-worthy. What had happened was that they had issued one of these forms to my client a few weeks before his scheduled move-out date (end of July 2019) and these forms had several boxes that explained that there were no problems with the tenant and it listed the amount of the security deposit and whether the apartment had been damaged. All of the boxes were fine, and suggested that they would likely return his security deposit…but then a week later, they had issued a second one with a minor change, where they also agreed they would return his security deposit but there was a box checked where the question was whether the tenant was ever violent or abusive with staff. The allegations here were between the tenant, my client, and the sole landlord-manager who had an argument with one another wherein my client yelled and called the landlord “a f***ing liar”. No police were called and nothing ever came of it, and testimony/the transcript confirms this. Later, at trial, and the transcript should show this, as the attorney I never made any allegations that the statements in the landlord verification forms suggesting that the tenant would receive their security deposit should be determinative.

In other words, I could have used the landlord’s own statements against them to assure that the security deposit would be returned, but it would go against the law because obviously a landlord has a right to inspect the property after the tenant vacates or immediately before with the tenant. Of course a landlord can’t (or probably shouldn’t) be held accountable for prior statements, even though these were made on these forms. Finally, with regards to the controversy between the client and the landlord, I attempted to focus purely on the facts with regards to the condition of the apartment, the evidence provided (photos and receipts) and the law: what constitutes damage beyond ordinary?. Remember, the entire purpose that this nation has it’s legal system set up to handle “individual cases” is so that from these cases the actual law might become more clear, boundaries and relevant factors drawn upon through time.

So, Monday had come and I told my client I would make a pre-trial settlement offer of $500 which seemed like a good, happy medium between the actual damage as it appeared in the photos and the law which, if they couldn’t prove legitimacy to the court, would penalize them double damages (700 x 2 = 1400) plus bad faith 500, so $1900 plus interest. Typically, settlements would mainly be with regards to a holistic calculation of the likelihood of success at trial, attorney’s fees, and an estimate of the actual damages. In many civil suits, the amount awarded depends on jury determinations. In our case, the actual amount was easily calculated to somewhere between $1400 plus interest and ~$1950 depended on the judge’s application of bad faith. If bad faith was determined to be imputed “ipso facto”. The legal term means “by the mere fact of, or act of” meaning that if the landlord fails to prove its case, they lose and the penalty is imposed fully without regard to whether it seems like they weren’t dishonest or whatever. Either way, it was a simple calculation of risk and better for my client than his conciliation court offer since he now would have representation.

I had taken into account the fact that the law was uncertain because, like I’ve been saying, the courts refuse to publish cases regarding what is and isn’t “ordinary wear and tear.” It makes absolutely no sense to me considering the entire reason that this country has a legal system that handles cases individually and keeps record of them for attorney’s to research is so that the law can be increasingly clear over time. In fact, I deeply felt that the factors in our case would contribute greatly to clarifying the law, even if we did indeed go to trial and lost our case. The benefit to the people of this state who rent and landlord’s alike would benefit. After all, we are a society under the same law/legal system and the clarity of our relationships is how peace and understanding grow. In other words, if the law is clear about what constitutes ordinary wear and tear, the public won’t be distressed about a landlord keeping their deposit and be more certain about getting it back if they know what was and wasn’t damaged when they move out. That is a critical part of being a lawyer, contributing to the public interest. Being a citizen of the same country as all the people around me, I thought it would be really great to know that I have supported them in some way and could share with them how and what my role was in this big complicated world we share.

The trial was scheduled for 9 am, Monday morning, July 27th, 2020. There were mask requirements because of Covid and so my client and I had met and went inside the building a few minutes before 9 am reaching the entry to the courtroom around 9 or a minute or two after. There was nobody there, not on the entire floor or anyone in view. Around ten to fifteen minutes had passed and I began to wonder if the court had shut down or something, or maybe the trial was canceled/pushed back. Finally at around 9:25 the court clerk showed up and asked who I was and I explained I represented Mr. Smith and he wanted to get my license number and enter me into the record as counsel. Neither the defendant or opposing counsel had shown up yet and I was wondering if there was a chance we would be able to get a default judgment soon. I am not the type of attorney that would be too strict with that unless they no-showed and didn’t seem to want to contest it. I actually would not have asked for the double damages or bad faith penalty under the statute to be imposed because that is almost certainly connected to an actual trial where the landlord can’t make a case. However, at about 9:30 the other party showed up and opposing counsel as well, unexpectedly seeing me as representation. They provided me evidentiary documentation, which I’d already had from my client, but this was officially organized with exhibit numbers. It was a bit difficult during trial to attest to each of the relevant documents according to this list because I hadn’t seen them numbered this way before this moment.

I asked to meet to make a last minute offer prior to trial and I’m pretty sure it was $500 or very close to that and it became instantly clear that something was a bit off or strange. I had said I think we have a very good case and they irked almost to say no-way and said that they would relay it to the client but the chances are next to none. A minute later, returning from the phone call, it was said basically that we’ll see each other at trial.

I stipulated to the alleged move-out date. The issue was the exact date that my client had vacated the apartment, I assumed because they didn’t want a gap between the time the tenant vacated and the landlord’s opportunity to do a post-vacate walk-through to see the condition of the apartment. I had no intention of making a claim that the apartment was somehow damaged between the time my client vacated and the date they had a chance to see it…so of course I stipulated. I had no problem with this, even though opposing counsel appeared to be glad to “pounce” or capitalize on this stipulation…I never had the intent of doing anything deceptive but merely showing the court what little evidence of real damage that is beyond what is colloquially known as ordinary and show the contradictions in their testimony and other acts.


Standard of Review The standard of review is a key issue in this case and it is EXTREMELY IMPORTANT that the Court of Appeals understands it properly because it is a fundamental component of our legal system and the integrity of it. Specifically, it limits the powers of the appellate court to rule on “factual matters” while giving them supreme power to “clarify the law” since they are a higher legal authority than the lower courts who are responsible for hearing parties and making difficult determinations that are more involved in the case…which is the real reason the legal system has juries of laypersons who decide the likelihood or interpretation of purely factual matters. So, a decision of whether a defendant might have killed someone is up to the jury, but the instructions they are given, the sentence of the defendant, the applicability of a particular charge (1st or 2nd degree, in this example) is a “legal” matter that the judge’s actions can be reviewed with no deference from the court of appeals, but the court of appeals will not overturn a purely factual decision.

If this sounds confusing, it really isn’t, so you’ll have to either study it more, gain experience, or just accept the truth that it is not nearly as tedious or obscure as it seems.

Legal experts have made several observations about the law-fact distinction that the law ascribes and some potential flaws with it. Specifically, there are “holdings” (ultimate rulings in cases or issues that the court of appeals is being asked to review) that are sort of “compound” issues that entail both questions of law and fact. These are known as mixed questions.

In my case, the question for appeal was “whether the district court properly found that the defendant-landlord met their burden of proving that the tenant’s apartment was damaged beyond ordinary wear and tear.” The factual portion of this question is whether they provided evidence or proof of damage, but there is a legal component as well, which is whether the damage surpasses the threshold of “ordinary.” To suggest that the bold statement above is purely a factual question is completely and obviously wrong. However, that is what the Court of Appeals and that is why I am extremely angry and feel that the court is corrupt. In fact, there is no other reasonable conclusion. They are the sole people in the world who should know how the standard of review is determined, and they do know…they simply decided to use their power to rule against us.

The moment that I saw the phrase “clear error” or “clearly erroneous” in the beginning of the opinion issued by the court, I knew they had not merely blundered, but that it was deliberate and corrupt.

Every lawyer in the United States knows that: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. Marbury v. Madison, one of the most famous legal cases in history that set the bounds on the judiciary’s relationship to the other branches of government.

Holdings under Smith v. Broadway Flats:

Holdings are the legal rule/s or principle/s, statements or assertions that come from the decisions in a case. In Smith v. Broadway Flats, the following are the holdings, and are likely connected to the reason why the Court of Appeals of the State of Minnesota decided NOT to publish the case (to keep it from being cited by attorney’s as law in future cases).

Factors that constitute damage beyond ordinary wear and tear:
a. Rust on bathroom fixtures, even after a 3 year lease/rental
b. An empty refrigerator if there is a single can of cat food left inside.

Perjury is not an obstacle to a landlord being found credible when testimony is the primary source of evidence they provide to the court. The landlord had made contradictory statements where only one of them could be true, specifically regarding the entry into Smith’s apartment,

When a landlord withholds money from a tenant for parts that are shown in tact in the photographs by a landlord, they will be upheld. (The drawer in the refrigerator was in tact as the landlord testified to and was nevertheless deducted as an expense).
The legislative intent to penalize landlords for unjustifiably withholding security deposits can be overruled by the courts.
A mixed question can be reviewed under the “clearly erroneous” standard which gives significant deference to a district court judge, despite the truth that this standard is reserved for factual questions.


Someone who merely reads the opinion won’t realize the numerous things the court deliberately failed to address. One of them was the fact that, despite having taken photos of the apartment, the single biggest withholding was for the carpet cleaning and they showed a receipt, but no photo of the carpet. Why would they have taken photos and failed to take one of the single biggest claim of damage?







P Argument: A carpet that was dirty and worn but did not need to be replaced cannot, as a matter of law, be considered damaged beyond ordinary wear and tear. Tenant’s have a right to use the property as a home, and people can do what they want in their home, including walking around it.

D Counter-argument: Yes it can, if it is within 5 years and needs professional cleaning. It would be unreasonable to expect landlords to bear an expense burden every time a tenant vacates. The world we live in is fast-paced and people move in and out of apartments all the time, this will kill the living standards because nobody can profit as a landlord.

P Counter: First of all, your honor, opposing counsel has provided no proof of carpet damage other than some receipt for cleaning, which provides no proof of actual damage, only that the landlord supposedly paid for cleaning. Its a mere document, which must, as a matter of law be an insufficient reflection of the actual condition of the apartment.

D Counter: Objection your honor, there absolutely is evidence of apartment damage, why else would my client have a receipt of having paid to have the carpet cleaned? Them having to pay is proof it was dirty.

P : Paying to have it cleaned doesn’t mean it was dirty beyond the limits of ordinary wear and tear. The receipts are indirect evidence and because they are being used to suggest the landlord had to pay because the apartment was in fact damaged is fallacious. Those two things don’t match up alone, so they most certainly don’t match up against the photographs, which are by themselves evidence the landlord had a camera to take photos of alleged damage and either did not take a photograph of the apartment or didn’t think what it showed warranted the claims they used to justify their withholding.



One of the things we know about our legal system is that there are massive, institutional level efforts in place to ensure that our legal system improves and becomes better at producing justice. We agree to a system where we handle cases individually, and through the decisions in those cases, the law becomes more specific and refined. This works because one case might have slightly different factors than another case as applied to the language of a statute, for example, and the distinctions between those cases will provide further clarity about what the law is. One of the skills lawyers need is to be able to take those various cases that are relevant to one another and determine what those cases combined to say with regards to factors in their own case. This process is called case synthesis and it is supposed to serve as the basis of legal argument at the trial level, and even prior to that, as counsels for opposing parties negotiate.

This process cannot occur in this case because (1) the trial was ruined by the obscurity by counsel for Broadway Flats. In an effort to “win” for his client, he created a bunch of fabricated evidence that contradicted the actual physical evidence and illustrates the corruption in itself. Precisely, they lacked “proof” of damage to the apartment so they decided to put a bunch of people on the witness stand to testify and give the illusion to the fact finder (a sole judge) of propriety…”this is right and fair because there are a large number of people who agree and testify” which is really a total falsehood.

Now, the truth and justice have been buried…and the evidence lies in the court records themselves. Specifically the ruling itself. A trial court decision that interprets facts and applies the law should naturally have statements that do just that. As argued, however, there was nothing in the photographs that show damage beyond ordinary wear and tear, at least not colloquially since the law won’t define the law (courts refuse to publish decisions on the matter.). So, instead of giving a single statement that says any particular part of the apartment is damage beyond ordinary, the court obscurely phrases it suggesting the landlord was credible. This is a fallacy, and a complete legal impropriety. The court never references the cabinet, or the rust on the shower fixtures, or the wall, or the carpet, and why this constitutes damage. They merely state that the landlord was credible. This means absolutely nothing with regards to why the apartment had factors that constitute damage beyond ordinary wear and tear.

What’s worse is that the law is now that “any landlord can withhold a tenant’s security deposit as long as they can get on a witness stand and lie under oath that the apartment was damaged.” The landlords word reigns supreme…which makes me wonder why in the hell the legislature even bothered to create a “double damages” and “bad faith” penalty to counter landlords doing precisely this. The actual standard of what “ordinary” means IS SUPPOSED TO BE A LEGAL STANDARD, not a standard according to the landlord! It is an objective interpretation according to the law, and if the law is unclear, according to the intent of the legislature in enacting the relevant statute.


Anyone who works in law and pretends that this is okay really needs to be in another field or profession, because their understanding of how the legal system works or what principles it is founded on is unacceptable and wrong. The apathy and lack of concern for justice according to well established notions is ridiculous.

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