Chong v. Durkin

E-FILED CNMI SUPREME COURT E-filed: Oct 01 2026 04:57PM Clerk Review: Oct 01 2026 04:58PM Filing ID: 80796920 Case No.: 2025-SCC-0006-CIV Judy Aldan IN THE Supreme Court OF THE Commonwealth of the Northern Mariana Islands CHONG INTERNATIONAL CORPORATION, Plaintiff-Appellee, v. DANIEL DURKIN, Defendant-Appellant. Supreme Court No. 2025-SCC-0006-CIV SLIP OPINION Cite as: 2026 MP 10 Decided October 1, 2026 ASSOCIATE JUSTICE JOHN A. MANGLOÑA ASSOCIATE JUSTICE ROBERTO C. NARAJA JUSTICE PRO TEMPORE ROBERT J. TORRES, JR. Superior Court Civil Action No. 24-0190-CV Associate Judge Teresa K. Kim-Tenorio, Presiding  Chong v. Durkin, 2026 MP 10 MANGLOÑA, J.: ¶1 This case arises from an eviction action brought by Appellee Chong International Corporation (“Chong”), a family-owned corporation of Gab Du Chong (“Gab Du”) against Appellant Daniel Durkin (“Durkin”). Durkin appeals the trial court’s denial of his affirmative defense of retaliatory eviction and his counterclaim for unjust enrichment. The trial court found that the eviction was sought to renovate the apartment, not to retaliate for Durkin’s report of Chong’s zoning violation. It also held that Chong was not unjustly enriched under the rental agreement. We AFFIRM the order denying both the affirmative defense and the counterclaim. I. FACTS AND PROCEDURAL HISTORY ¶2 Durkin rented a third-floor apartment in Chong’s complex on Saipan under a 2021 lease terminating in May 2022. The lease provided: “Tenants shall not make alterations . . . [or] improvements on the demised premises without the prior written consent of Landlord except for ordinary repairs.” App. at 78. It also required Durkin to bear the “sole expense” for ordinary repairs. App. at 79. ¶3 During his tenancy, Durkin frequently complained to government agencies about the apartment and surrounding area. Despite this history, Chong and Durkin executed a new rental agreement in October 2022 that ended in November 2023. Under the new lease, Durkin became eligible for the Emergency Housing Voucher, a financial assistance program by the Northern Marianas Housing Corporation (“NMHC”). The program required a successful housing quality standards inspection before monthly rent subsidies would issue. ¶4 Before the inspection, Durkin renovated the apartment, paying a Chong employee for labor and purchasing supplies. He testified the renovations were intended to make the apartment “beautiful” for his girlfriend or to “impress [his] grandfather.” Tr. 1/29/2025 at 80, 166. The unit passed inspection, and the NMHC inspector advised Durkin that the renovations were unnecessary. After the lease expired in November 2023, Durkin continued to occupy the apartment. App. at 53. ¶5 Behind the apartment complex was an undeveloped area with vegetation, trash and deteriorated shipping containers. Chong deliberately placed the shipping containers there for storage. In early 2024, Durkin reported the area to the Saipan Mayor’s Office, which prompted the Saipan Zoning Office to inspect the area. The Zoning Office served Chong with a notice of violation that contained a $1,000 fine. A few days later, Chong negotiated with the Zoning Office to reduce the fine to $500, provided the nuisance was abated. Chong hired a contractor to remove the shipping containers a few weeks later, and paid the fine months later. ¶6 Less than a week after the clean-up, Gab Du handed Durkin a notice to vacate that read “[Chong] is writing this formal letter to kindly request [Durkin] to please vacate the premises within the next 30 days because we will be  Chong v. Durkin, 2026 MP 10 renovating the 3rd floor.” App. at 103. Chong sued to evict after the 30-day period. Durkin remained in the apartment through the trial. ¶7 Durkin asserted the affirmative defense of retaliatory eviction and counterclaimed for unjust enrichment based on the renovations. At trial, the parties offered conflicting testimony regarding a conversation between Durkin and Gab Du. On the retaliatory eviction claim, the trial court found that although the notice to vacate was issued shortly after the zoning violation, Chong’s motive for seeking eviction was not retaliatory. The court rejected the retaliatory defense and also denied the unjust enrichment claim. Durkin now appeals both rulings. II. JURISDICTION ¶8 We have appellate jurisdiction over final judgments and orders of the Commonwealth Superior Court. NMI CONST. art. IV, § 3. III. ISSUES ON APPEAL AND STANDARD OF REVIEW ¶9 There are two issues on appeal. The first issue is whether Durkin’s eviction was retaliatory. The second issue is whether Chong retaining the renovations after the eviction was unjust enrichment. ¶ 10 First, determinations of mental states, such as Chong’s motivation for the eviction, are questions of fact reviewed for clear error. Pangelinan v. Pangelinan, 2024 MP 5 ¶ 71. Clear error occurs only where “after reviewing all the evidence we are left with a firm and definite conviction that a mistake has been made.” Id. (quoting Commonwealth v. Crisostomo, 2014 MP 18 ¶ 8). ¶ 11 Second, the exercise of equitable powers, such as denying unjust enrichment, is reviewed for abuse of discretion. Xiaodong Tang v. Xuan Guo, 2025 MP 11 ¶ 33 (citing Pangelinan v. Itaman, 4 NMI 114, 117 (1994)). IV. DISCUSSION A. Retaliatory Eviction Claim Was Properly Denied ¶ 12 In the absence of relevant statutory or customary law, the CNMI applies the common law described in the Restatements. 7 CMC § 3401. Under the Restatements of Property, a tenant may assert retaliatory eviction as a defense to an otherwise valid eviction if certain elements are met.1 Restatement (Second) of 1 A tenant may raise the defense of retaliatory eviction if the following elements are met: (1) there is a protective housing statute embodying a public purpose to insure proper conditions of housing, especially multi-unit housing designed for rental to tenants of low or moderate income; (2) the landlord is in the business of renting residential property; (3) the tenant is not materially in default in the performance of his obligations under the lease at the time the landlord acts; (4) the landlord is primarily motivated in so acting because the tenant, either alone or through his participation in a lawful organization of tenants,  Chong v. Durkin, 2026 MP 10 Property (Landlord and Tenant) § 14.9. One required element is “the landlord is primarily motivated in so acting because the tenant, either alone or through his participation in a lawful organization of tenants, has complained about a violation by the landlord of a protective housing statute.” Id. § 14.8. The landlord’s primary motivation is a question of fact. Id. § 14.8 cmt. f. ¶ 13 To be the landlord’s primary motive, the impermissible motive must outweigh any permissible ones. It is insufficient that the landlord acted based on several motives, only one of which is improper. Id. The tenant bears the “ultimate burden of proof.” Id. The Restatement provides other guidance in the form of a non-exhaustive list of factors that can establish the landlord’s primary motivation is not retaliatory. 2 ¶ 14 Applying the Restatement standard, the trial court found Chong’s primary motive for the eviction was to convert the third floor into a single apartment and not to retaliate for Durkin’s complaint. The court determined this explanation aligned with three Restatement factors: a) reasonable exercise of business judgment, c) good faith desire to make a different use of the leased property, and f) that the landlord did not act at the first opportunity after learning of the tenant’s conduct. ¶ 15 In making the determination, the trial court reviewed “voluminous evidence” on Chong’s motivations. App. at 43. The evidence included extensive testimony from Gab Du, Chong, and another tenant, Barbara Valdez, during the has complained about a violation by the landlord of a protective housing statute; and (5) the tenant’s complaint was made in good faith and with reasonable cause. Restatement (Second) of Property: (Landlord and Tenant) § 14.8. 2 These factors include: (a) the landlord’s decision was a reasonable exercise of business judgment; (b) the landlord in good faith desires to dispose of the entire leased property free of all tenants; (c) the landlord in good faith desires to make a different use of the leased property; (d) the landlord lacks the financial ability to repair the leased property and therefore, in good faith, wishes to have it free of any tenant; (e) the landlord was unaware of the tenant’s activities (of the type described in subsection (4)); (f) the landlord did not act at the first opportunity after he learned of the tenant’s conduct; and (g) the landlord’s act was not discriminatory. Restatement (Second) of Prop. (Landlord and Tenant) § 14.8 cmt. f.  Chong v. Durkin, 2026 MP 10 five-day trial. Id. at 43–44. The court also considered the timing between the “Notice to Vacate” and the cleanup. Id. at 44–45. ¶ 16 Appellate courts do not reweigh the evidence or reassess witness credibility. Fitial v. Kyung Duk, 2001 MP 9 ¶ 18; United States v. Durham, 464 F.3d 976, 983 n.11 (9th Cir. 2006). The finder of fact has the “exclusive function of determining the credibility of witnesses, resolving evidentiary conflicts, and drawing reasonable inferences from proven facts.” Pangelinan, 2024 MP 5 ¶ 58 (citing Islam v. Islam, 2009 MP 17 ¶ 17). Fact finding remains “reserved for the finder of fact.” Pillow v. State, 986 N.E.2d 343, 345 (Ind. Ct. App. 2013) (quoting Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012)). As the United States Supreme Court has said, duplicating the factual findings on appeal would be a “huge cost in diversion of judicial resources” with only marginal gains in accuracy. Anderson v. Bessemer City, 470 U.S. 564, 574–75 (1985). The appellate court reviews only to see if there are any “facts or inferences supporting” the factual findings. Vill. Commons, LLC v. Marion Cnty. Prosecutor’s Off., 882 N.E.2d 210, 214 (Ind. Ct. App. 2008). ¶ 17 This principle carries force with live witness testimony. We will not “second-guess” witness credibility determinations. Islam, 2009 MP 17 ¶ 20. And when a fact finder credits a witness who “has told a coherent and facially plausible story . . . that finding, if not internally inconsistent, can virtually never be clear error.” In re Estate of Yong Kyun Kim, 2001 MP 22 ¶ 10 (quoting Anderson, 470 U.S. at 575); Adams v. Fan Chen, 830 Fed. Appx. 727, 730 (5th Cir. 2020) (quoting Anderson, 470 U.S. at 575). However, if testimony contradicts objective evidence, the label of witness credibility determination will not insulate a factual decision from appellate review. Adams, 830 Fed. Appx. at 730. ¶ 18 Durkin argues the trial court improperly excluded relevant evidence, but the evidence was either considered or irrelevant. He identifies three alleged deficiencies: testimony relating to a conversation between Chong and himself, the temporal proximity of the notice to vacate and the clean-up of the shipping containers, and the existence of other tenants on the third floor. 3 ¶ 19 The first alleged deficiency concerns a dispute over a conversation between Gab Du and Durkin. Durkin testified Gab Du told him she would no longer deal with him because of his complaints. Gab Du denied making the statement or disputed its context. No evidence corroborates either version. In such circumstances, where both accounts are internally consistent, choosing 3 In Durkin’s Opening Brief, two sentences were dedicated to a conversation between Gab Du and another tenant Barbara Valdez. Opening Br. at 6. No specific fault with the consideration with this bit of evidence as a matter of fact or law was alleged. Any issue with regards to the consideration of this evidence is therefore waived. Commonwealth v. Calvo, 2014 MP 10 ¶ 9 (holding argument must be sufficiently developed to avoid waiver).  Chong v. Durkin, 2026 MP 10 between them can “virtually never be clear error.” Estate of Yong Kyun Kim, 2001 MP 22 ¶ 10; Adams, 830 Fed. Appx. at 730; see also Islam, 2009 MP 17 ¶ 19. ¶ 20 Durkin next argues the court failed to give sufficient weight to the short time between the cleanup and the notice to vacate. The trial court noted Durkin had complained for years without any retaliation from Chong. The court acknowledged the suspicious proximity to the last complaint but, based on his history of prior complaints, found it unlikely the last complaint was the primary motive for the eviction. ¶ 21 A similar situation arose in James v. Victoria House, Inc., 386 Fed. Appx. 122 (3d Cir. 2010) (non-precedential). The Third Circuit’s reasoning is instructive because the Virgin Islands, like the CNMI, applies the Restatements of the Law in the absence of local law. Id. at 124; 7 CMC § 3401. In James, a tenant alleged retaliatory eviction after he complained about the water quality. Id. at 123. The record reflected three non-retaliatory motives: 1) the tenant’s disruptive method of complaining, 2) the tenant’s history of “persistent complaints”, and 3) his violation of his lease by storing furniture. Id. at 125. ¶ 22 Applying Restatement (Second) of Property: (Landlord and Tenant) § 14.8, the Third Circuit held the tenant had the burden to rebut the non-retaliatory motivations, including the history of complaints, and that failure to meet that burden is “fatal to his affirmative defense.” James, 386 Fed. Appx. at 125. Likewise, the trial court here did not clearly err in considering the timing of the eviction within the broader context of Durkin’s complaints. ¶ 23 Third, Durkin argues the factual findings ignored the existence of other tenants on the third floor. As only he was evicted, he argues the renovation motive is undercut because other tenants would also need to be removed to convert the third-floor apartments into a single unit. He also asserts Gab Du’s conflicting testimony about how many other tenants were present on the third floor at the time of his eviction undermines her credibility. ¶ 24 As to the first point, nothing in the trial court’s findings of fact or legal conclusions depends on an assumption that the other third floor apartments were vacant. See generally App. at 49–71. Chong did not have to evict all tenants simultaneously to eventually convert the third-floor into one apartment. Whether other tenants remained is not determinative of Chong’s motive for evicting Durkin. ¶ 25 Nor do inconsistences in Gab Du’s testimony about the number of other tenants on the third floor demonstrate clear error. The existence of a factual error in one portion of a witness’s testimony is not sufficient to indicate clear error. See Commonwealth v. Shu Jie Tian, 2019 MP 9 ¶¶ 17, 20 (finding inconsistent testimony cannot on its own demonstrate error when the evidentiary burden is otherwise met). We do not reconsider the credibility of witnesses on appeal. Id. ¶ 20.  Chong v. Durkin, 2026 MP 10 ¶ 26 Durkin bore the burden of proving that retaliation was the primary motivating factor for the eviction. He failed to meet his burden. B. There Was No Unjust Enrichment ¶ 27 Durkin alleges the trial court abused its discretion by denying his unjust enrichment claim based on the renovations he made to the apartment. An abuse of discretion occurs only where a “decision ‘rests upon a clearly erroneous finding of fact, errant conclusion of law or an improper application of law to fact.’” Ishimatsu v. Royal Crown Ins. Corp., 2010 MP 8 ¶ 33. ¶ 28 Three elements are required for unjust enrichment: “(1) the defendant was enriched; (2) the enrichment came at the plaintiff’s expense; and (3) equity and good conscience militate against permitting the defendant to retain what the plaintiff seeks to recover.” Syed v. Mobil Oil Marianas Islands, Inc., 2012 MP 20 ¶ 41 (citing the Restatement (Third) of Restitution and Unjust Enrichment § 1 (2011)). The trial court found the third element, the demands of equity and good conscience, was not met here because the rental agreement delineated who would bear the burden of renovations and who would keep them at the end of the rental agreement. We agree. ¶ 29 To succeed on an unjust enrichment claim, there cannot be a valid contract defining the obligations of the parties on the same subject matter as the claim. Guldseth v. Family Med. Assoc. LLC, 45 F.4th 526, 541 (1st Cir. 2022) (citing Restatement (Third) of Restitution and Unjust Enrichment § 2 (2011)); Clapp v. Goffstown Sch. Dist., 977 A.2d 1021, 1025 (N.H. 2009). If there is such a contract, it displaces the unjust enrichment claim. Associated Mgmt. Servs. v. Ruff, 424 P.3d 571, 595 (Mt. 2018) (citing Restatement (Third) of Restitution and Unjust Enrichment § 2 (2011)). The contractual parties’ own definitions of their obligations take precedence over general obligations created by courts. Restatement (Third) of Restitution and Unjust Enrichment § 2 cmt. c (2011). ¶ 30 The Montana Supreme Court applied this principle to a claim based on a bridge constructed according to an easement agreement. Beck v. Dimar, 554 P.3d 130, 138 (Mt. 2024). A neighborhood held easements over a river but no bridge existed. Id. at 133. One neighbor built a bridge at his own expense but then demanded the other holders of the easement pay for it. Id. The easement agreement stated that all constructions and improvements would be borne by the constructor absent a written agreement to share the cost. Id. at 136. The agreement controlled and foreclosed an unjust enrichment based on the construction costs. Id. at 138. ¶ 31 The First Circuit likewise held a written employment agreement foreclosed an unjust enrichment claim based on an alleged oral promise. Guldseth, 45 F.4th at 540–41. A doctor claimed that he had an oral agreement to take over the practice of another doctor and receive the other doctor’s partnership interest if he worked for eighteen months. Id. at 531. The transfer of the interest was not included in the later written employment contract. Id. at 532. The written  Chong v. Durkin, 2026 MP 10 contract controlled and foreclosed any unjust enrichment claim based on the earlier oral promise. Id. at 540–41. ¶ 32 Within the contractual context, unjust enrichment claims may only arise “at the margins” where the contract fails to effectively regulate the obligations, such as through the contract being invalid or otherwise avoidable. Id. The D.C. Court of Appeals found that a landlord retaining money pursuant to an invalid penalty provision of a contract could give rise to a claim of unjust enrichment. Falconi-Sachs v. LPF Senate Square, LLC, 142 A.3d 550, 556–57 (D.C. 2016). The existence of a contract between the parties will not foreclose the possibility of an unjust enrichment claim when the contract is “expressly limited” to other matters. James G. Davis Constr. Corp. v. FTJ, Inc., 841 S.E.2d 642, 648 (Va. 2020). Despite a limited contract between the parties that governed joint checks, the Virginia Supreme Court found that subsequent repeated direct payments and assurances of payment from a contractor to a supplier could give rise to a claim of unjust enrichment. Id. ¶ 33 Durkin and Chong signed a rental agreement that governed their respective obligations regarding the apartment. The lease stated “tenants shall not make alterations . . . [or] improvements on the demised premises without the prior written consent of Landlord except for ordinary repairs.” App. at 78. Any ordinary repairs and maintenance made would be at Durkin’s expense. Id. at 79. The agreement also provided “all alterations, changes, and improvements . . . by Tenant . . . shall . . . be the property of the Landlord and remain on the demised premises at the expiration or sooner termination of the lease.” Id. at 78. The aesthetic changes were unnecessary for safety reasons and not ordinary repairs. See App. at 69. There was no written consent from Chong. Id. ¶ 34 No argument was presented that the lease provisions were invalid or inapplicable. There is no allegation of subsequent behavior by Chong that would have led Durkin to believe that he would retain the improvements. Just as the Montana easement agreement foreclosed unjust enrichment, the rental agreement here, which expressly states improvements become the landlord’s property, forecloses Durkin’s unjust enrichment claim. And as in Guldseth, Durkin identifies no provision in the contract to justify his reliance. ¶ 35 Holding unjust enrichment claims displaced by valid contracts accords with how other courts have treated unjust enrichment claims brought against landlords. The Colorado Supreme Court used an earlier version of the Restatement of Restitution to address a situation where the contractor hired by a tenant attempted to recover from the landlord. DCB Constr. Co. v. Central City Dev. Co., 965 P.2d 115, 122 (Colo. 1998). The tenant had agreed to pay all the costs of a remodeling of the building and posted a notice for its contractors that the landlord was not liable for any of the repairs. Id. at 117. There, the landlord took an active role and approved the requests from the tenant to the contractor. Id. at 122. The tenant became insolvent and the contractor sought compensation from the landlord as they stood to gain from the expenditure on the building. Id. at 118. However, for there to be injustice between the contractor and the landlord,  Chong v. Durkin, 2026 MP 10 there must be “improper, deceitful, or misleading conduct by the landlord.” Id. at 122. ¶ 36 The holding of DCB Construction has been adopted by the Arizona Court of Appeals. Wang Elec., Inc. v. Smoke Tree Resort, LLC, 283 P.3d 45, 50–51 (Ariz. Ct. App. 2012) (citing DCB Constr. Co., 965 P.2d at 123). In Wang Elec., subcontractors sued a resort after its tenant failed to pay them. Id. at 47–48. The resort had approved the plan and agreed to compensate the tenant for the repairs up to a specified amount. Id. at 47. However, it had not agreed to pay the subcontractors anything. Id. at 47–48. Property owners are not responsible to the tenant’s contractors for the tenants’ improvements unless they take on such a responsibility by their actions. Id. at 50–51. ¶ 37 Durkin should not have reasonably expected to recover the cost of the improvements based on the lease’s prohibition on making improvements without the landlord’s consent and its express provision that they would become the landlord’s property. This accords with the general legal principle that landlords are not responsible for improvements the tenant has agreed to pay for unless they take that responsibility through their representations to the tenant’s contractors and suppliers. Accordingly, there was no abuse of discretion in denying unjust enrichment. 4 V. CONCLUSION ¶ 38 We AFFIRM the trial court’s finding that the eviction was non-retaliatory as sufficient evidence supports that determination. We likewise AFFIRM the holding that there was no unjust enrichment on the basis of the contractual provisions. SO ORDERED this 1st day of October, 2026. /s/ JOHN A. MANGLONA Associate Justice /s/ ROBERTO C. NARAJA Associate Justice 4 There is a short paragraph at the end of the unjust enrichment section of the reply brief arguing there was unjust enrichment based on the loss of his housing assistance. See Durkin Reply Br at 5. This argument was not raised below or present in the opening brief. It is accordingly waived. See Commonwealth v. Calvo, 2014 MP 10 ¶ 9 (holding argument must be developed in opening brief to avoid waiver).  Chong v. Durkin, 2026 MP 10 /s/ ROBERT J. TORRES, JR. Justice Pro Tempore COUNSEL Jeanne H. Rayphand, Saipan, MP; for Appellant. Charity R. Hodson, Saipan, MP, for Appellees. NOTICE This slip opinion has not been certified by the Clerk of the Supreme Court for publication event of any discrepancies between this slip opinion and the opinion certified for publication, the certified opinion controls. Readers are requested to bring errors to the attention of the Clerk of the Supreme Court, at P.O. Box 502165 Saipan, MP 96950, phone (670) 236–9715, or via e-mail at Supreme.Court@NMIJudiciary.gov.