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 in the permanent law reports. Until certified, it is subject to revision or withdrawal. In the 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 [email protected].