Sharon's False Files (MN) 1992_2009

Civil, Family & Probate Case Records Search Results

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Case Number	Style	Filed/Location/Judicial Officer	Type/Status
31-P5-96-001128	SHARON LEA ANDERSON	07/05/1996 Itasca	Commitment - Mentally Ill Converted Closed
62-C5-93-010695	SHARON (LEA) ANDERSON vs. NORM COLEMAN et al.	09/21/1993 Ramsey Civil	Civil Other/Misc. Converted Closed

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Register Of Actions

Case No. 62-C5-93-010695

SHARON (LEA) ANDERSON vs. NORM COLEMAN et al.

§ § § § §

Case Type: Civil Other/Misc. Date Filed: 09/21/1993 Location: Ramsey Civil

Party Information

				Lead Attorneys
Defendant	185 (88)
Defendant	City of St. Paul St. Paul, MN 55102			MCCLOSKEY, PAUL F, Jr. Retained
Defendant	COLEMAN, NORM			Pro Se Retained
Defendant	GEARIN, DINO			Pro Se Retained
Defendant	GRIMM, MARIE			Pro Se Retained
Defendant	HUDSON, NATALIE			Pro Se Retained
Defendant	LONG, BOB			Pro Se Retained
Defendant	MACCABBEE, PAULA			Pro Se Retained
Defendant	MUNICIPAL CANVASS BOARD M.S. 205.18
Defendant	O'ROURKE, MOLLY			Pro Se Retained
Defendant	RETTMAN, JANICE			Pro Se Retained
Defendant	THUNE, DAVID			Pro Se Retained
Defendant	WILLSON, WM.			Pro Se Retained
Plaintiff	ANDERSON, SHARON LEA SAINT PAUL, MN 55104			Pro Se Retained

Events & Orders of the Court

			OTHER EVENTS AND HEARINGS
09/21/1993			Converted Filing Fee
09/21/1993			DOC-Document Filed
09/21/1993			FLD-Case Filed
09/21/1993			ORD-Order
09/28/1993			AFF-Affidavit
09/28/1993			AFF-Affidavit
09/28/1993			DOC-Document Filed
10/13/1993			Converted Filing Fee
10/13/1993			MTN-Motion Filed
10/28/1993			MTN-Motion Filed
10/29/1993			Motion Hearing (9:30 AM) Result: Converted Activity Status Flag Occurred
11/10/1993			ORD-Order
03/29/1994			ARC-Archive
07/28/2006			Converted Pending Activity Logout Search Menu New Civil Search Back Location : All MNCIS Sites - Case Search Help Register Of Actions Case No. 31-P5-96-001128 SHARON LEA ANDERSON § § § § § Case Type: Commitment - Mentally Ill Date Filed: 07/05/1996 Location: Itasca Party Information Lead Attorneys Petitioner ITASCA COUNTY DEPT - HUMAN SERVICES Grand Rapids, MN 55744 MASON, WINTON J Retained Respondent ANDERSON, SHARON LEA ST. PAUL, MN 55106 Female 01/27/1939 GRAHAM, JOHN R Retained Events & Orders of the Court DISPOSITIONS 08/23/1996 Dismissed (Judicial Officer: Judge, Presiding) Converted Disposition: Related Participants: ITASCA COUNTY DEPT - HUMAN SERVICES OTHER EVENTS AND HEARINGS 07/05/1996 FLD-Case Filed 07/05/1996 RVW-Case Status Review 07/08/1996 DOC-Document Filed 07/08/1996 DOC-Document Filed 07/08/1996 ORD-Order 07/08/1996 ORD-Order 07/09/1996 DOC-Document Filed 07/09/1996 SUB-Submitted 07/09/1996 Preliminary/Probable Cause Hearing (1:30 PM) Result: Converted Activity Status Flag Occurred 07/10/1996 DOC-Document Filed 07/16/1996 Commitment Hearing (1:30 PM) Result: Converted Activity Status Flag Cancelled 07/17/1996 RPT-Report Filed 07/23/1996 CRS-Correspondence 07/25/1996 CRS-Correspondence 07/26/1996 DOC-Document Filed 07/26/1996 SCH-Schedule Hearing 07/29/1996 DOC-Document Filed 07/30/1996 Commitment Hearing (9:00 AM) Result: Converted Activity Status Flag Cancelled 07/31/1996 ORD-Order 07/31/1996 SPA-Subpoena 08/01/1996 DOC-Document Filed 08/01/1996 NOT-Notice 08/01/1996 Hearing (9:00 AM) Result: Converted Activity Status Flag Occurred 08/02/1996 SUB-Submitted 08/02/1996 Commitment Hearing (9:00 AM) Result: Converted Activity Status Flag Occurred 08/08/1996 CRS-Correspondence 08/08/1996 SPA-Subpoena 08/08/1996 SPA-Subpoena 08/09/1996 AJU-Adjudicated 08/09/1996 CRS-Correspondence 08/09/1996 DOC-Document Filed 08/15/1996 CRS-Correspondence 08/16/1996 ORD-Order 08/16/1996 RPT-Report Filed 08/22/1996 RPT-Report Filed 08/23/1996 CLO-Closed 08/23/1996 DIS-Dismissed 08/23/1996 ORD-Order 08/23/1996 RPT-Report Filed 10/16/1996 CRS-Correspondence 10/23/1996 ARC-Archive 04/19/2004 Converted Pending Activity

Nancy Lazaryan v. DPS (MN)

Civil, Family & Probate Case Records Search Results

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Case Number	Style	Filed/Location/Judicial Officer	Type/Status
05-CV-09-1658	NANCY CAROL LAZARYAN vs DEPARTMENT OF PUBLIC SAFETY	09/25/2008 Benton Scherer, John H.	Civil Other/Misc. Reopened

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Register Of Actions

Case No. 05-CV-09-1658

NANCY CAROL LAZARYAN vs DEPARTMENT OF PUBLIC SAFETY

§ § § § §

Case Type: Civil Other/Misc. Date Filed: 09/25/2008 Location: Benton

Related Case Information

Related Cases

05-VB-08-610 (Companion Case)

Party Information

				Lead Attorneys
Defendant	DEPARTMENT OF PUBLIC SAFETY ST PAUL, MN 55101-5170			WATNE, JOEL A Retained
Plaintiff	LAZARYAN, NANCY CAROL RICE, MN 56367		Female 12/18/1958	Pro Se Retained

Events & Orders of the Court

			DISPOSITIONS
10/08/2009			Judgment (Judicial Officer: Scherer, John H.)
			OTHER EVENTS AND HEARINGS
09/25/2008			Petition-Other
10/08/2008			Request-Judicial Officer Removal
10/08/2008			Order to Remove
10/08/2008			Notice of Filing of Order
10/21/2008			Motion
10/21/2008			Affidavit of Service
10/24/2008			Order-Other
10/27/2008			Notice of Filing of Order
10/31/2008			Motion
03/09/2009			Order-Other
03/10/2009			Notice of Filing of Order
03/10/2009			Order-Other
03/10/2009			Notice of Filing of Order
04/02/2009			Order-Other
04/02/2009			Notice of Filing of Order
04/29/2009			Motion
04/29/2009			Affidavit of Mailing
08/03/2009			Other Document
08/03/2009			Affidavit of Mailing
08/05/2009			Affidavit for Proceeding In Forma Pauperis
08/07/2009			Hearing (2:00 PM) Result: Held
08/18/2009			Order for Proceeding In Forma Pauperis
08/18/2009			Order-Other
08/18/2009			Notice of Filing of Order
08/18/2009			Scheduling Order
08/18/2009			Notice of Filing of Order
09/01/2009			Briefs
09/02/2009			Affidavit of Service
09/11/2009			Memorandum
09/11/2009			Affidavit of Mailing
09/21/2009			Other Document
09/21/2009			Affidavit of Mailing
09/22/2009			Hearing (9:00 AM) Result: Held
09/22/2009			Taken Under Advisement
10/01/2009			Findings of Fact, Conclusions of Law and Order
10/01/2009			Notice of Filing of Order
10/08/2009			Order-Other
10/08/2009			Notice of Filing of Order
10/08/2009			Findings of Fact, Conclusions of Law and Order
10/08/2009			Notice of Filing of Order
10/16/2009			Notice of Motion and Motion
10/16/2009			Affidavit of Service
10/20/2009			Memorandum
10/20/2009			Affidavit of Service
10/21/2009			Motion Hearing (9:00 AM) Result: Held
10/21/2009			Order for Submissions-Under Advisement
10/21/2009			Order for Submissions-Under Advisement
11/04/2009			Motion Hearing (9:00 AM)

Financial Information

			Plaintiff LAZARYAN, NANCY CAROL
			Total Financial Assessment			372.00
			Total Payments and Credits			372.00
			Balance Due as of 10/28/2009			0.00
08/19/2009			Transaction Assessment			322.00
08/19/2009			Credit/In Forma Pauperis			(322.00)
09/02/2009			Transaction Assessment			50.00
09/02/2009			Credit/In Forma Pauperis			(50.00)

NancyLazaryan v. Judge John VandenorthA08-778(MN)

Court of Appeals Unpublished Opinions

16. A08-778
State of Minnesota, Respondent, vs. Nancy Carol Lazaryan, Appellant.
Affirmed. Judge Larry B. Stauber, Jr.
Ramsey County District Court, Hon. John B. VanDeNorth, Jr.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2008).

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-778

State of Minnesota, Respondent, vs. Nancy Carol Lazaryan, Appellant.

Filed October 27, 2009

Affirmed

Stauber, Judge Ramsey County District Court

File No. 62T507024818

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

John Choi, St. Paul City Attorney, Heidi L. Johnston, Special Assistant City Attorney, Suite 300, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Marie Wolf, Interim Chief Appellate Public Defender, Mark D. Nyvold, Assistant Public Defender, Suite 300, 540 Fairview Avenue North, St. Paul, MN 55104 (for appellant)

Considered and decided by Stauber, Presiding Judge; Klaphake, Judge; and Minge, Judge. 2 U N P U B L I S H E D O P I N I O N

STAUBER, Judge

On appeal from her convictions of trespassing and disorderly conduct, appellant contends that she was deprived of her constitutional right to present a defense because the district court refused to instruct the jury on the defense of citizen’s arrest. We affirm. FACTS

In late 2007, appellant Nancy Lazaryan made a formal request to the City of Saint Paul’s Department of Safety and Inspections (DSI) under the Minnesota Government Data Practices Act (MGDPA) to review all government data concerning vacant buildings in the city. In order to accommodate appellant’s request, DSI staff had to review each file and redact any non-public information. DSI policy also mandated that a staff member be present to maintain the integrity of the files while appellant reviewed them. Robert Humphrey, an assistant director at DSI, was assigned to appellant’s request. Due to the voluminous nature of the request, Humphrey established a protocol that allowed appellant to meet with a DSI employee once a week at a pre-arranged time to review all relevant files that had been prepared for public viewing in the previous week. Appellant agreed to the protocol; however, on several occasions she failed to arrive on time for her scheduled appointments. As a result, Humphrey modified the protocol to require appellant to schedule viewing appointments at least 48 hours in advance.

On November 28, 2007, appellant arrived at the DSI office without providing any notice and asked to review available files. Humphrey denied appellant access to the files because she had failed to schedule an appointment 48 hours in advance. According to 3

Humphrey, appellant began yelling at him and pushed him into a wall. Appellant told Humphrey that she was placing him under citizen’s arrest because he lacked the authority to deny her access to the files. Appellant also called 911 to alert police that she was making a citizen’s arrest. In an attempt to evade appellant, Humphrey left the public lobby and used his key card to enter a secured area restricted to city employees only. Appellant chased after Humphrey and managed to gain entrance to the secured area. Humphrey proceeded to search for Sergeant Schoen, a police officer assigned to DSI. Humphrey was unable to locate Sergeant Schoen, but upon entering Sergeant Schoen’s office, appellant pushed Humphrey into a chair, ordered him to remain seated, and blocked the doorway with her arm to prevent him from leaving. By that time, police officers responding to appellant’s call had arrived at the office. The officers refused to place Humphrey under arrest because they concluded that there was no evidence to suggest that Humphrey’s conduct was illegal.

Appellant was subsequently charged with trespassing and disorderly conduct. Prior to trial, appellant provided notice of her intent to defend against the charges by claiming that she was making a citizen’s arrest of Humphrey for violating Minn. Stat. § 609.43 (2006), which prohibits misconduct by a public official. Appellant claimed that Humphrey’s denial of her request to review public information constituted a violation of the statute because Humphrey did not have the authority to respond to data requests. Under appellant’s interpretation of the MGDPA, only the city clerk had the authority to facilitate such requests. At the close of trial, appellant requested a jury instruction on the defense of citizen’s arrest. The district court denied the request because appellant had 4

failed to offer sufficient evidence to raise the defense. The court also noted that, even if appellant had satisfied her evidentiary burden, no exigent circumstances were present to justify her decision to immediately arrest Humphrey by force. The court allowed appellant to testify about her decision to restrain Humphrey, but instructed the jury that the execution of a citizen’s arrest was not a valid defense to the charges. At the close of trial, appellant was convicted of both charges. This appeal followed. D E C I S I O N

Appellant argues that the district court’s instruction to the jury that the defense of citizen’s arrest was not a valid defense to the charges violated her right to present a complete defense. The effectuation of a citizen’s arrest can be a valid defense to criminal charges. See Minn. Stat. § 629.30, subd. 2(4) (2006) (stating arrest can be effectuated by private person); Minn. Stat. § 629.37 (2006) (providing grounds under which private person can arrest another); State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997) (recognizing citizen’s arrest as a defense to criminal charges). And "[d]ue process requires that defendants be afforded [a] meaningful opportunity to present a complete defense." State v. McArthur, 730 N.W.2d 44, 54 (Minn. 2007).

But a defendant is only entitled to a defense instruction on citizen’s arrest if there is sufficient evidence "to make the defense one of the issues of the case." State v. Auchampach, 540 N.W.2d 808, 817 (Minn. 1995) (concluding if mitigating circumstance or issue is converse of enumerated element of crime charged and negates that element, defendant required to adduce sufficient evidence on proffered defense to make it an issue in case; burden then shifts to state to prove beyond reasonable doubt lack of that defense). 5

In order to satisfy this standard, a defendant must make at least a "prima facie showing that the proffered defense is an issue." State v. Hage, 595 N.W.2d 200, 205 (Minn. 1999). The district court has broad discretion in crafting jury instructions and will not be reversed absent an abuse of that discretion. State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).

The district court denied appellant’s request for a citizen’s arrest instruction because appellant failed to produce any evidence that Humphrey had knowingly engaged in misconduct by a public employee. Misconduct by a public employee occurs when an employee "does an act knowing it is in excess of lawful authority or knowing it is forbidden by law to be done in that capacity." Minn. Stat. § 609.43(2) (2006).

Appellant claims that Humphrey engaged in official misconduct by responding to her data request and refusing her access to the data. Appellant contends that Humphrey lacked the authority to respond to data requests or place limitations on her right to view government data because the city clerk had exclusive authority over data requests.

Under the MGDPA, the "responsible authority" is required to respond to government data requests. Minn. Stat. § 13.03, subd. 1 (2006). A "responsible authority" is an "individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of any set of data." Minn. Stat. § 13.02, subd. 16 (2006). Appellant introduced the city’s guidelines and procedures for the MGDPA, which designate the city clerk as the responsible authority. But the document also gives the city clerk the authority to assign government data requests to department supervisors as designees. The city clerk designated responsibility 6

for data requests to the director of Humphrey’s department, Robert Kessler, who in turn, assigned the task to Humphrey.

Strictly construed, Kessler’s assignment of the data request to Humphrey may have been impermissible under the city’s guidelines and procedures because only assignments from the city clerk to department supervisors were explicitly authorized. But even assuming that Humphrey did not have the authority to process appellant’s request, appellant failed to produce any evidence demonstrating that Humphrey knowingly acted outside the scope of his authority. See Minn. Stat. § 609.43(2) (stating that misconduct by a public employee occurs when an employee knowingly acts in excess of lawful authority). In fact, the evidence in the record suggests that Humphrey believed, in good faith, that he had the authority to respond to appellant’s request. Humphrey testified that responding to data requests was part of his job and claimed that he was operating under the direction of Kessler in processing appellant’s requests. Humphrey was conscientious about processing requests and regularly consulted with the city attorney’s office, the city clerk, and the Minnesota Information Policy Analysis Division to ensure compliance with the data practices laws. Humphrey also copied the city clerk on email correspondence between him and appellant to ensure that the clerk was aware of the status of appellant’s request. Humphrey never gave any indication that he doubted his authority to respond to the requests, and Kessler also testified that Humphrey was acting pursuant to his orders.

The only evidence that appellant produced to demonstrate that Humphrey may have been aware that he was acting outside his authority was her own testimony that she 7

told Humphrey at some point that he did not have the authority to process her request. Although appellant’s testimony could suggest that Humphrey knowingly violated the law, the district court apparently did not find her credible. See State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003) (indicating that credibility determinations are entitled to deference on appeal), review denied (Nov. 18, 2003). Because this court defers to the district court’s credibility determinations and because appellant failed to present sufficient evidence to suggest that she was making a valid arrest at the time of the offenses, the district court did not abuse its discretion in refusing to instruct the jury on a citizen’s arrest defense.

Another consideration that factored into the district court’s decision to deny appellant the right to rely on the defense was the lack of immediate necessity to forcibly arrest Humphrey by trespass. State law permits a private citizen to make arrests for public offenses committed or attempted in the arresting person’s presence. Minn. Stat. § 629.37(1). But, as we have previously noted, a statutory construction granting an absolute right of trespass in order to effect a citizen’s arrest is unsupported and would uniquely threaten the privacy of others. State v. Rein, 477 N.W.2d 716, 719 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992). Before a citizen may trespass to make an arrest, it must be shown that deference to law enforcement was not feasible. Id. ("Private arrest powers likely cannot supercede public law enforcement activity absent extraordinary circumstances."). Here, no exigent circumstances were present to necessitate appellant’s trespass and physical restraint of Humphrey. Accordingly, 8

appellant should have refrained from taking matters into her own hands and, instead, referred the matter to law enforcement.

Because appellant failed to present prima facie evidence that Humphrey knowingly violated the MGDPA and because no exigent circumstances were present to support appellant’s decision to trespass into a secured area and physically restrain Humphrey, the district court did not abuse its discretion in refusing to provide the jury with a citizen’s-arrest instruction.

Affirmed.

WmSmithrud v CitySt.Paul Demo

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2008).

Wm Smithrud v. City St.Paul MN - Google Search

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-2003

Leroy Smithrud, Appellant, vs. City of St. Paul, Respondent.

Filed September 15, 2009

Affirmed

Stoneburner, Judge

Ramsey County District Court

File No. 62CV089147

Leroy Smithrud, 7356 Rosewood Lane, Maple Grove, MN 55369 (pro se appellant)

John J. Choi, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant challenges the dismissal of his complaint, asserting numerous claims relating to respondent city‘s decision to demolish two of appellant‘s rental properties to abate nuisances. Because appellant‘s claims all challenge the city‘s quasi-judicial 2

decision, the district court did not err by dismissing the complaint for lack of jurisdiction. Therefore, we affirm.

FACTS

Appellant Leroy Smithrud filed a 20-page pro se complaint in Ramsey County district court asserting numerous claims that all arise out of the decision of respondent City of St. Paul (the city) to demolish two of Smithrud‘s rental properties to abate nuisances.

Smithrud‘s complaint contains eight counts. Count one asserts that the city violated its own legislative code and failed to follow its own procedural requirements for notice, hearing, due process, and identification of code provisions enforced. Count one also asserts that the city ―heighten[ed]‖ minimal standards for inspection and code enforcement for ―older housing stock.‖ No specific acts or violations of code or statutory provisions are identified.

Count two is titled ―Declaratory Judgment as to the City‘s Violations of its Own Legislative Code‖ and asserts that, under the Uniform Declaratory Judgments Act, the district court has jurisdiction to determine that the city ―cannot heighten‖ its code ―beyond that of the State Building Code‖ and that ―the City is in violation of its own Legislative code as to Notice and Hearing.‖

Count three is titled ―Declaratory Judgment as the State Building Code Cannot be Heightened by the City.‖ This count again asserts that the district court has jurisdiction to determine that city ―has heightened its Legislative Code above that determined by and 3

adopted in the State Building Code, and that such heightened Code is illegal as enforced against Smithrud.‖

Count four asks for a determination that, at all times material, Smithrud is disabled.

Count five is titled ―Violations of Federal Fair Housing Law.‖ This count asserts that the city has violated the ―Federal Fair Housing Laws‖ as to both of Smithrud‘s properties and as to Smithrud. Smithrud seeks attorney fees, costs, and other damages as may be just and equitable, to be determined by a jury trial. The complaint does not identify specific provisions alleged to have been violated or describe how the federal law was allegedly violated.

Count six, titled ―False or Failed Certifications Under HUD and the Code of Federal Regulations,‖ asserts that the city has not provided any evidence that it has complied with HUD rules and regulations ―especially as to certifications that are mandatory as [to] analysis of impediments and affirmative duties to further the goals of federal fair housing as related to grandfathering older housing stock and as to protected class members.‖ Smithrud asserts that failure to perform analysis of impediments or to protect older, grandfathered-in housing stock is actionable by him under ―42 U.S.C. § 3604 et seq.‖ because Smithrud is trying ―to protect that type of housing on behalf of protected class members.‖ Smithrud asserts that he and his protected-class tenants have been damaged by the city‘s violations of the Federal Fair Housing Act and the Code of Federal Regulations, 24 C.F.R. §§ 91.210, 570.904, 982.401. Smithrud seeks damages for ―such misconduct.‖ 4

Count seven asserts that the city is retaliating against Smithrud for his attempts to sell or rehabilitate his properties, and has caused him to lose rental properties, rents, and will reduce the supply of older, affordable federal fair housing stock that should be grandfathered in. Smithrud seeks damages for this claim.

Count eight seeks a temporary restraining order to preserve the status quo, asserting irreparable harm and that Smithrud meets all five Dahlberg factors. See Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274–75, 137 N.W.2d 314, 321–22 (1965) (setting forth factors to be considered in determining whether the issuance of a temporary injunction can be sustained on appeal).

The district court dismissed the complaint for lack of subject-matter jurisdiction, concluding that all of the claims challenge the city‘s quasi-judicial decision and could only be pursued by writ of certiorari to this court. This appeal followed.

D E C I S I O N

―The existence of subject matter jurisdiction is a question of law, which this court reviews de novo.‖ Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999). A city‘s decision to abate a nuisance property is a quasi-judicial decision, and when city or state legislation does not otherwise provide, jurisdiction for review of such a decision rests exclusively in the court of appeals by writ of certiorari. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn. App. 2000). In this case, the city‘s ordinance does not provide for district court review of its quasi-judicial nuisance abatement decisions. See St. Paul, Minn., Legislative Code ch. 45 (2008) (containing no provision for district court review). 5

Smithrud argues that the district court has jurisdiction over his claims for declaratory judgment. See Minn. Stat. § 555.01 (2008) (providing that courts of record have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed). ―Declaratory judgments permit determination of a controversy ‗before obligations are repudiated or rights are violated,‘ essentially allowing one who walks in the dark to turn on the light before—rather than after—one steps in a hole.‖ Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 273–74 (Minn. App. 2001) (quoting A.L. Loyd v. City of Irwinton, 236 S.E.2d 889, 890 (Ga. Ct. App. 1977)).

In Connor v. Chanhassen Twp., the supreme court treated a constitutional challenge to a township ordinance in a declaratory judgment action as a challenge to a legislative act and rejected the township‘s assertion that complainant had not exhausted administrative remedies by seeking review by writ of certiorari from a prior zoning decision that triggered application of the challenged ordinance. 249 Minn. 205, 208–10, 81 N.W.2d 789, 793–94 (1957).1 Smithrud relies on Connor to assert that he can proceed with a declaratory judgment action without having pursued review of the demolition decision by writ of certiorari. But Connor is distinguishable because Smithrud is asserting that his rights have been violated by the city‘s quasi-judicial action and is not making an independent challenge to any legislative action by city.

1 The only constitutional issue raised by Smithrud is an allegation that his due process rights were violated by city‘s failure to follow its own procedures. Such a challenge could have been addressed by writ of certiorari. See Minn. Stat. § 14.69 (2008) (permitting reversal or modification of an agency decision ―made upon unlawful procedure‖). 6

Smithrud argues that despite the city‘s adoption of the state building code, the city unlawfully applied more stringent requirements to his properties than those called for under the state building code.2 Smithrud correctly argues that the state building code supersedes municipal building codes, and ―[a] municipality must not by ordinance or through development agreement require building code provisions regulating components or systems of any residential structure that are different from any provision of the State Building Code.‖ City of Morris v. Sax Investments, Inc., 749 N.W.2d 1, 7 (Minn. 2008) (quoting Minn. Stat. § 16B.62, subd. 1 (2006)). But Smithrud is asserting that the city made its quasi-judicial decision in excess of its statutory authority, an argument properly addressed on certiorari review. See Minn. Stat. § 14.69 (2008) (codifying the standard of review of agency decisions in contested case proceedings and providing that this court may reverse or modify a decision that, among other reasons, is made in excess of the agency‘s statutory authority).

2 Despite Smithrud‘s repeated assertion that the city is applying more stringent requirements, Smithrud has not identified in his complaint or in his brief on appeal a citation to any section of the building code and has not explained in what manner more stringent requirements were applied to him.

Courts should construe pleadings liberally and judge them by their substance to determine if they give fair notice of the facts and legal theories to the adverse party. Basich v. Bd. of Pensions, 493 N.W.2d 293, 295 (Minn. App. 1992). But we are unable to conclude from Smithrud‘s pleadings that he has cited any valid claim under the Uniform Declaratory Judgments Act over which the district court could have exercised jurisdiction. 7

Smithrud also asserts that the district court had jurisdiction over claims raised under various federal statutes that he cited, including the Judiciary Act of 1789, the Fair Housing Act (FHA), the Civil Rights Act (CRA), and the Americans with Disabilities Act (ADA).3 But we have held that merely cloaking a challenge to a quasi-judicial decision in the mantle of a different claim does not change the jurisdictional analysis. Meldahl, 607 N.W.2d at 172. In Meldahl, we rejected the assertion that the district court had jurisdiction over an inverse-condemnation claim contained in a complaint challenging demolition of a building for nuisance because the takings claim was ―not separate and distinct from the city‘s quasi-judicial decision to demolish the structure.‖ Id. We stated that, where an inquiry into the facts surrounding a taking‘s claim would involve an inquiry into the city‘s decision, jurisdiction is by writ of certiorari alone. Id.

3 Smithrud also argues that a conclusion by this court that the district court did not have jurisdiction would be an unconstitutional violation of federal law by preventing the exercise of concurrent subject-matter jurisdiction and by preventing the district court‘s exercise of original jurisdiction over state claims. Because Smithrud had not asserted any state or federal claims that are independent of his challenge to the city‘s quasi-judicial decisions, we find no merit in this unsupported assertion.

Smithrud‘s references to federal statutes do not assert violations of those statutes separate from the city‘s demolition orders and involve inquiry into the demolition decisions, making certiorari alone his avenue of review. Likewise, Smithrud‘s assertion that his claims involve matters of public interest and implicate public corruption and fraud with regard to fair, affordable housing, do not avoid the jurisdictional issue.

Affirmed.

MN via Lori Swanson v. Messerli,Kramer 21Apr09

Sharon's Disclaimer Title 26 501c3 Educational http://sharonagmn2010.blogspot.com

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ¡× 480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF APPEALS
A08-0415, A08-0551

State of Minnesota, by its Attorney General, Lori Swanson, Appellant (A08-415), Barbara Shipp, et al., Appellants (A08-551), vs. Messerli and Kramer, P.A., et al., Respondents.
Filed April 21, 2009
Affirmed; motion denied
Toussaint, Chief Judge
Ramsey County District Court
File Nos. C7-04-12204, 62-C8-04-012194

Lori Swanson, Attorney General, Gary R. Cunningham, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for appellant State of Minnesota)
Galen Robinson, Law Offices of the Legal Aid Society of Minneapolis, 430 First Avenue North, Suite 300, Minneapolis, MN 55401-1780; and
Michael J. Persellin, Jeremy T. Carvell, Law Offices of the Legal Aid Society of Minneapolis, 2929 Fourth Avenue South, Suite 201, Minneapolis, MN 55408 (for appellants Barbara Shipp et al.)

Jeanne H. Unger, Michael A. Klutho, Christopher R. Morris, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402-3707 (for respondents)
2

Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Randall, Judge.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge Appellants Barbara Shipp, Barbara Johnson, Joanne Taylor, Lynn Parkkila, Janice Sturges, Marlene Carter, and Melanie Fischer, on behalf of themselves and all others similarly situated (the Shipp appellants), brought an action alleging unlawful attorney-fee collection practices in debt-collection proceedings against respondents Messerli and Kramer, P.A., Derrick N. Weber, and Jefferson C. Pappas, a law firm and its employees that represented creditors of the Shipp appellants. Appellant State of Minnesota, by its Attorney General, Lori Swanson (the state) brought an action alleging unlawful attorney-fee collection practices and unlawful levy/garnishment practices in debt-collection proceedings against respondents. Respondents moved for summary judgment against the Shipp appellants and for judgment on the pleadings against the state. The district court granted both motions, and the Shipp appellants and the state now challenge those decisions. Because the Shipp appellants. claims and the state.s claims are barred as impermissible collateral attacks on underlying judgments and because the state did not file suit pursuant to an independent cause of action, we affirm. We deny respondents. motion to strike. Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ¡× 10.
3

D E C I S I O N

1. A08-551 . The Shipp Appellants¡¯ Case

Creditors of the Shipp appellants employed respondents to collect on the Shipp appellants. debts. Respondents brought actions against the Shipp appellants and, because the Shipp appellants did not answer the complaints, respondents obtained default judgments and attorney-fee awards for their clients against the Shipp appellants. After the time to appeal had lapsed, the Shipp appellants brought this action against respondents, arguing that the attorney-fee affidavits submitted by respondents did not comply with Minn. R. Gen. Pract. 119 and that their cover letters were misleading and unconscionable. Respondents moved for summary judgment; the district granted the motion on the grounds that the Shipp appellants. claims were barred as collateral attacks on the presumptively-valid underlying default judgments and attorney-fee awards.
On appeal from a grant of summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
The underlying default judgments and attorney-fee awards against the Shipp appellants are conclusive as to whether respondents. practices in collecting the attorney fees were lawful. Thus, the district court had no authority to overturn either the default judgments or the attorney-fee awards. ¡°[P]ublic policy favors the finality of judgments and the ability of parties to rely on court orders.¡± Nussbaumer v. Fetrow, 556 N.W.2d
4

595, 599 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). A ¡°judgment of a court of competent jurisdiction, after the expiration of the time of appeal, cannot be impeached, either directly or indirectly, for mere errors or irregularities not going to the jurisdiction of the court.¡± Sache v. Wallace, 101 Minn. 169, 171, 112 N.W. 386, 387 (1907). The Shipp appellants rely on three exceptions to the collateral-attack doctrine. First, they contend that the district court failed to recognize its inherent equitable power to enforce its procedural rules to prevent injustice. See, e.g., State v. Erickson, 589 N.W.2d 481, 485 (Minn. 1999) (stating that court has inherent power ¡°to administer justice whether any previous form of remedy has been granted or not¡± quotation omitted)); cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45, 64 S. Ct. 997, 1000 (1944) (stating that courts may grant equitable relief to correct injustices where ¡°enforcement of the judgment is manifestly unconscionable¡± (quotation omitted)). But the Shipp appellants have not shown that the attorney-fee awards are manifestly unconscionable. Because the attorney-fee awards have not been shown to be unreasonable, much less unconscionable, a collection agency.s failure to comply with the express language of Minn. R. Gen. Pract. 119 does not constitute an injustice and does not warrant the court.s intervention.
Second, the Shipp appellants rely on Minn. R. Civ. P. 60.02 (providing six grounds for relief from final judgment, but also stating that the rule ¡°does not limit the power of a court to entertain an independent action . . . or to set aside a judgment for
5

upon the court¡±).1 The phrase ¡°an independent action¡± denotes ¡°what had been historically known simply as an independent action in equity to obtain relief from a judgment.¡± 11 Charles Alan Wright et al., Federal Practice & Procedure ¡× 2868, at 396 (2d ed. 1995) (discussing equivalent federal rule). Again, equity did not require the district court to permit the Shipp appellants. impermissible collateral attack. Third, the Shipp appellants contend that a collateral attack is permitted because defects on the face of the record, i.e. the nonconforming attorney-fee affidavits, establish that the underlying judgment was not authorized. But a ¡°judgment alleged to be merely erroneous, or founded upon irregularities in the proceedings not going to the jurisdiction of the court, is not subject to attack.¡± Nussbaumer, 556 N.W.2d at 599 (citing Jones v. Wellcome, 141 Minn. 352, 355, 170 N.W. 224, 226 (1919) (requiring that lack of jurisdiction affirmatively appear on face of record to permit collateral attack)). ¡°Minnesota law does not permit the collateral attack on a judgment valid on its face.¡± Id. The allegedly nonconforming affidavits are merely ¡°irregularities in the proceedings not going to the jurisdiction of the court.¡± Thus, the attorney-fee awards are not subject to collateral attack.
The district court correctly concluded that respondents were entitled to summary judgment against the Shipp appellants as a matter of law. Because collateral attack is a
1 To obtain relief under the first three grounds ((1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) fraud, misrepresentation, or other misconduct of the adverse party), a motion must be made within one year of entry of judgment. Minn. R. Civ. P. 60.02. The Shipp appellants did not meet this deadline, and the remaining grounds ((4) the judgment is void, (5) the judgment has been satisfied, released, or discharged, or (6) any other reason justifying relief) do not apply here. See id.
6

threshold matter, we do not address the Shipp appellants. other claims. 2. A08-415 . The State¡¯s Case
The state, on behalf of its citizens, brought an action against respondents to obtain a declaration of wrongdoing as well as civil penalties, restitution, and disgorgement. Respondents moved for judgment on the pleadings, arguing that the state.s claims were barred as collateral attacks on final judgments and that the state lacked an independent cause of action to allege against respondents. The district court granted respondents. motion.
A district court.s grant of a motion for judgment on the pleadings is reviewed de novo. See Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003). ¡°All facts alleged in the complaint must be taken as true and all reasonable inferences drawn in favor of the nonmoving party.¡± Marchant Inv. & Mgmt. Co. v. St. Anthony W. Neighborhood Org., 694 N.W.2d 92, 95 (Minn. App. 2005). While this court focuses its consideration on the allegations in the pleadings, it ¡°may also consider documents and statements that are incorporated by reference into the pleadings.¡± Id.; see also Minn. R. Civ. P. 12.03.
As a threshold matter, the district court concluded that the state.s claims, like the Shipp appellants. claims, are barred as collateral attacks. This conclusion was not erroneous; the district court could not have granted the relief requested by the state without overturning the underlying default judgments. ¡°Minnesota law does not permit the collateral attack on a judgment valid on its face.¡± Nussbaumer, 556 N.W.2d at 599.
7

Nor did the district court err in concluding that the state lacked an independent cause of action to maintain claims against respondents under the Minnesota Debt Collections Agencies Act, the Minnesota Uniform Deceptive Trade Practices Act, Minn. R. Gen. Pract. 119, or the levy and garnishment statutes. To argue that no independent cause of action was needed, the state relies on Minn. Stat. ¡× 8.31, subd. 3(a)-(b) (2008) (providing that state has authority to sue for and obtain injunctive relief or a civil penalty) and on Head v. Special Sch. Dist. No. 1, 288, Minn. 496, 503, 182 N.W.2d 887, 892 (1970) (¡°It is clear that the attorney general may commence an action whenever, in his opinion, the interests of the state require it. He possesses such power pursuant to both common law and statute.¡±), overruled on other grounds by Nyhus v. Civil Serv. Bd., 305 Minn. 184, 186 n.1, 232 N.W.2d 779, 780 n.1 (1975). But, while the state may have standing to bring suit in the interests of its citizens, its claims against respondents require an independent cause of action.

A. The Minnesota Collection Agencies Act

The district court concluded that the Minnesota Collection Agencies Act did not provide the state with an independent cause of action against respondents because respondents, as lawyers engaged in the practice of law, are not liable as a collection agency. ¡°The term .collection agency. shall not include persons whose collection activities are confined to and are directly related to the operation of a business other than that of a collection agency such as . . . lawyers . . . .¡± Minn. Stat ¡× 332.32 (2008).
The state argues that the exclusion of lawyers applies only when their collection activities are directly related to the operation of a business other than a collection agency.
8

But this argument refutes the plain language of the statute. The best method of determining the legislature.s intent is to rely on the plain language of the statute. State v. Iverson, 664 N.W.2d 346, 350-51 (Minn. 2003). When the language is clear, we are bound to give effect to that language. Id. at 351. We must construe a statute according to the plain and ordinary sense of its words. Minn. Stat. ¡× 645.08(1) (2008).
The legislature specifically identifies lawyers as among those ¡°whose collection activities are confined to and are directly related to the operation of a business other than that of a collection agency.¡± Minn. Stat ¡× 332.32. The legislature could have imposed conditions on the exclusion of lawyers, as it did on the exclusion of banks, for example. See id. (excluding ¡°banks when collecting accounts owed to the banks and when the bank will sustain any loss arising from uncollectible accounts¡±). But the legislature did not make the exclusion of lawyers from the collection agencies act conditional, and the state.s argument would impose a condition. The district court did not err in finding that the collection agencies act did not provide the state with an independent cause of action.
B. The Minnesota Uniform Deceptive Trade Practices Act
The state has provided no authority establishing that respondents are subject to liability under the Minnesota Uniform Deceptive Trade Practices Act, and, as the district court noted, the legislative history of that act does not reveal any legislative intent to broaden its application beyond the offering of goods and services. Thus, the district court did not err in finding that the deceptive trade practices act did not provide the state with an independent cause of action.
9

C. Minn. R. Gen. Pract. 119
Minn. R. Gen. Pract. 119 sets forth the procedure for obtaining attorney fees after entry of a default judgment. Rules of procedure are to be enforced by the district court overseeing a proceeding and do not create a separate cause of action. See Minn. Stat. ¡× 480.051 (2008) (stating that procedural rules ¡°shall not abridge, enlarge, or modify the substantive rights of any litigant). The district court did not err in finding that rule 119 does not provide an independent cause of action to support a separate lawsuit against attorneys who allegedly violated the rule in underlying proceedings.
D. Levy and Garnishment Statutes
The Minnesota levy and garnishment statutes create no independent cause of action to institute subsequent litigation outside of the original proceedings. See Minn. Stat. ¡×¡× 551.04, 551.05, 571.72 (2008). The district court did not err in concluding that the state did not have an independent cause of action under the levy and garnishment statutes.
Although the state had standing to institute litigation to challenge respondents. practices in the public interest, it did not possess an independent cause of action to do so. The district court did not err in granting judgment on the pleadings in favor of respondents.
3. Motion to Strike
Respondents move this court for an order striking pages of the state.s reply brief that address an issue not addressed in the initial brief. Generally, issues not raised or argued in an appellant.s brief cannot be revived in a reply brief. McIntire v. State, 458
10

N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). But this court has discretion to address any issue as justice requires. Minn. R. Civ. App. P. 103.04.
Respondents claim that they will be ¡°substantially prejudiced¡± if we consider the issue not briefed in the state.s opening brief because they will be ¡°deprived of an opportunity to respond.¡± But the state.s case has been consolidated with the Shipp appellants. case, and the Shipp appellants briefed the issue in their initial brief. Thus, respondents were not deprived of an opportunity to respond in these consolidated appeals. Their motion to strike is denied.
Affirmed; motion denied.

MN Court Appeals Unpublished_10Mar09

Court of Appeals Unpublished Opinions

Disclaimer: Affiants research , court reconfigure's html links.

UNPUBLISHED OPINIONS FILED TUESDAY
MARCH 10, 2009.

Pursuant to Minn. Stat. § 480A.08, subd. 3 (2006)

1. A08-1693
In the Matter of the Civil Commitment of: Joshua Joseph Cox.
Affirmed. Chief Judge Edward Toussaint, Jr.
Hennepin County District Court, Hon. H. Peter Albrecht.

2. A08-714
Steven Donald Hubbard, petitioner, Appellant, vs. Commissioner of
Public Safety, Respondent.
Affirmed. Judge Randolph W. Peterson.
Blue Earth County District Court, Hon. Norbert P. Smith.

3. A08-673
Stanford Taylor Edward McClure, Jr., Plaintiff, Jesse Gant, III, Appellant,
vs. H. Le Phan, individually and as employee/agent of Felhaber, Larson,
Fenlon & Vogt Law Firm, et al., Respondents.
Affirmed. Judge Jill Flaskamp Halbrooks.
Ramsey County District Court, Hon. Kathleen R. Gearin.

4. A08-372
Nicole Fyksen, Relator, vs. Dakota County Community Development
Agency, Respondent.
Reversed. Judge Jill Flaskamp Halbrooks.
Dakota County Community Development Agency.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2008).

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-0372

Nicole Fyksen, Relator, vs. Dakota County Community Development Agency, Respondent.

Filed March 10, 2009

Reversed

Halbrooks, Judge Dakota County Community Development Agency

Lisa Hollingsworth, Southern Minnesota Regional Legal Services, Inc., 166 East 4th Street, Suite 200, St. Paul, MN 55101 (for relator)

Mary G. Dobbins, Landrum Dobbins LLC, 7400 Metro Boulevard, Suite 100, Edina, MN 55439 (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Ross, Judge; and Johnson, Judge. U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Relator Nicole Fyksen seeks review of the termination of her Section 8 housing-assistance benefits by respondent Dakota County Community Development Agency 2

(DCCDA), arguing that (1) the evidence does not support the decision to terminate based on misrepresentation, (2) DCCDA failed to consider mitigating circumstances, and (3) the hearing officer failed to comply with applicable law in making her decision. Because we conclude that the evidence does not support the termination decision, we reverse. FACTS

Before DCCDA terminated her benefits, relator received housing-assistance benefits for more than two decades, with one interruption around 1991. In April 2001, relator pleaded guilty to misdemeanor fifth-degree assault related to a February 2001 incident for which she served three days in jail.

On October 10, 2001, relator completed a recertification application for her housing-assistance benefits. She marked the ―No‖ answer to the question, ―Within the last year, have you . . . participated in a . . . violence related activity . . . ?‖ She marked ―No‖ to the same question on her July 2002 application. The December 2002 application changed the wording of the question to ―Have you . . . ever . . . participated in violent . . . activity . . . ?‖ Relator again marked the ―No‖ answer. The question remained the same through the next seven applications, and relator marked ―No‖ every time. The July 2006 application again rephrased the query. It first defined ―violent activity‖ as

any activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage. Violent activity includes but is not limited to: disorderly conduct, assault (including domestic assault), malicious punishment of a child, sexual assault, 3

murder or attempted murder, [and] assault with a deadly weapon.

The application then asked, among other things, whether relator had ever (1) participated in a violent activity or (2) ―[b]een arrested, charged or convicted for a violent . . . activity.‖ She marked the ―No‖ answers to both questions.

The same definition was provided and the same questions were asked on relator’s July 2007 recertification application, and she again marked the ―No‖ answers. In August 2007, relator attended her annual recertification appointment and reviewed her application with a DCCDA housing specialist. The housing specialist noted that there was no criminal history in relator’s file and asked her to authorize a criminal background check. The background check revealed the 2001 conviction, and DCCDA decided to terminate relator’s housing-assistance benefits based on the alleged repeated misrepresentations. On October 31, 2007, DCCDA advised relator that her benefits would be terminated on November 30, 2007. Relator requested an informal hearing, which was held November 28, 2007. The hearing officer upheld the termination. There is no transcript of the hearing, but the hearing officer filed a copy of her decision as a ―complete and accurate [record] of the proceedings.‖ This certiorari appeal follows. D E C I S I O N

Relator argues that the evidence does not support DCCDA’s quasi-judicial decision to terminate her housing-assistance benefits. An agency acts in a quasi-judicial manner when it ―hears the view[s] of opposing sides presented in the form of written and oral testimony, examines the record and makes findings of fact.‖ In re Signal Delivery 4

Serv., Inc., 288 N.W.2d 707, 710 (Minn. 1980). An agency’s quasi-judicial decision is to be upheld unless it is ―unconstitutional, outside the agency’s jurisdiction, procedurally defective, based on an erroneous legal theory, unsupported by substantial evidence, or arbitrary and capricious.‖ Carter v. Olmsted County Hous. & Redev. Auth., 574 N.W.2d 725, 729 (Minn. App. 1998). Substantial evidence is ―(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.‖ Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). The burden is on the challenging party to ―show that the evidence, considered in its entirety, and drawing inferences in favor of the decision, is not substantial.‖ CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 563 (Minn. App. 2001), review denied (Minn. Nov. 13, 2001). A. Misrepresentation and violent activity The Section 8 housing-assistance program provides ―rental subsidies so eligible families can afford decent, safe and sanitary housing.‖ 24 C.F.R. § 982.1(a)(1) (2008). In order to participate in the program, families must provide a variety of information, all of which ―must be true and complete.‖ 24 C.F.R. § 982.551(b)(4) (2008). If a family violates its obligation to provide true and complete information, the local public-housing agency may terminate the family’s participation. See 24 C.F.R. § 982.552(c)(1)(i) (2008). 5

In deciding to terminate relator’s housing-assistance benefits, DCCDA alleged that she had misrepresented1 her criminal past by failing to disclose her fifth-degree assault conviction. The questions that relator purportedly answered untruthfully or incompletely all asked about her involvement in violent activity of a criminal nature. Although a definition was not provided on the application form until July 2006, ―violent criminal activity‖ was defined in the federal regulations at all relevant times as ―any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage.‖ 24 C.F.R. § 5.100 (2008); see also Screening and Eviction for Drug Abuse and Other Criminal Activity, 66 Fed. Reg. 28,776, 28,792 (May 24, 2001) (to be codified at 24 C.F.R. pt. 5) (adopting definition effective June 25, 2001). Minnesota’s Criminal Code provides for degrees of assault. First-degree assault requires the infliction of ―great bodily harm.‖ Minn. Stat. § 609.221, subd. 1 (2008). Third-degree assault requires the infliction of ―substantial bodily harm.‖ Minn. Stat. § 609.223, subd. 1 (2008). Fifth-degree assault requires the infliction of ―bodily harm,‖ without using any modifier. Minn. Stat. § 609.224, subd. 1(2) (2008).

1 Relator argues DCCDA is alleging fraud because the term ―misrepresentation‖ does not appear in the federal regulations. Fraud and misrepresentation are distinct concepts; the failure to be true and complete is merely misrepresentation. Compare The American Heritage Dictionary of the English Language 1125 (4th ed. 2006) (defining ―misrepresent‖ as giving ―an incorrect or misleading representation‖), with 24 C.F.R. § 792.103 (2008) (setting forth the elements of fraud). 6

We need not and do not decide whether ―substantial‖ or ―great‖ is our state’s equivalent of the federal regulation’s adjective ―serious.‖ But mere bodily harm, as is required for a conviction of fifth-degree assault, is not serious bodily injury. Because fifth-degree assault does not have as one of its elements the infliction of serious bodily injury, a person could reasonably conclude that a fifth-degree assault conviction is not within the scope of the recertification application’s inquiry. DCCDA’s decision to terminate relator’s housing-assistance benefits is therefore not supported by substantial evidence. B. Mitigating circumstances

Relator also assigns as error DCCDA’s failure to consider mitigating circumstances. Because our decision rests on another ground, we do not decide whether this purported failure is error. But we note that the federal regulations state that a local public-housing agency ―may consider all relevant circumstances.‖ 24 C.F.R. § 982.552(c)(2)(i) (2008). We disagree that this language is mandatory. Cf. Minn. Stat. § 645.44, subds. 15–16 (2008) (defining ―may,‖ ―must,‖ and ―shall‖). C. Adequacy of the hearing officer’s decision

Finally, relator challenges the hearing officer’s decision on the ground that it is inconsistent with applicable law because it fails to weigh facts, cite law, or apply law to facts. Again, because DCCDA’s decision is unsupported by substantial evidence, we do not decide whether the hearing officer’s decision complies with the standard we set forth more than ten years ago in Carter. See 574 N.W.2d at 729–30. But we caution hearing officers—and the agencies that rely on them—to re-examine the requirements we have 7

articulated. Their decisions must contain sufficient factual findings and credibility determinations to facilitate our review.

Reversed.

5. A07-2218, A07-2279, A07-2364
State of Minnesota, Respondent, vs. Dion Caress Pennywell, Appellant.
Affirmed. Judge Jill Flaskamp Halbrooks.
Ramsey County District Court, Hon. M. Michael Monahan.

6. A08-349
State of Minnesota, Respondent, vs. Hassan Dahir, Appellant.
Affirmed. Judge Renee L. Worke.
Hennepin County District Court, Hon. H. Peter Albrecht.

7. A07-2386
James Mark Vogel, petitioner, Appellant, vs. Vicky Lynn Carrier,
Respondent.
Affirmed. Judge Renee L. Worke.
Becker County District Court, Hon. Peter Irvine.

8. A08-603
Jason A. Bartleman, Relator, vs. TCF National Bank Minnesota,
Respondent; Department of Employment and Economic Development,
Respondent.
Affirmed. Judge Francis J. Connolly.
Department of Employment and Economic Development.

9. A08-1760
State of Minnesota, Appellant, vs. Jared Lee Westbrook, Respondent.
Reversed and remanded. Judge Michelle A. Larkin.
Cass County District Court, Hon. David Harrington.

10. A08-741
William Davis, petitioner, Appellant, vs. Jeff Peterson, et al.,
Respondents.
Affirmed. Judge Michelle A. Larkin.
Anoka County District Court, Hon. Tammi A. Fredrickson.

11. A08-729
Jane Doe 43C, et al., Appellants, vs. Diocese of New Ulm, et al.,
Respondents.
Affirmed in part, reversed in part, and remanded. Judge Michelle A.
Larkin.
Brown County District Court, Hon. Allison Krehbiel-Baskfield.

12. A08-581
Veit USA, Inc., et al., Relators, vs. Sherburne County, Minnesota, et al.,
Respondents.
Reversed and remanded. Judge Larry B. Stauber, Jr.
Sherburne County Board of Commissioners.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).

STATE OF MINNESOTA IN COURT OF APPEALS A08-0581 Veit USA, Inc., et al., Relators, vs. Sherburne County, Minnesota, et al., Respondents. Filed March 10, 2009 Reversed and remanded Stauber, Judge Sherburne County Board of Commissioners Jack Y. Perry, Jason R. Asmus, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2157 (for relators) Michael J. Ford, James S. McAlpine, Quinlivan & Hughes, P.A., Box 1008, St. Cloud, MN 56302-1008 (for respondents)

Considered and decided by Stauber, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

STAUBER, Judge

In this certiorari appeal from respondent-county‟s denial of relator‟s application for a conditional use permit (CUP) allowing expansion of an aggregate mine, relator argues that (1) the county‟s discretion was limited by criteria in the relevant CUP ordinance as well as other caselaw-based considerations and (2) the county board‟s 2

findings were arbitrary and capricious. Because the decision was arbitrary and capricious, the findings were legally insufficient, and the county could have addressed its concerns by implementing conditions to the CUP, we reverse and remand. FACTS This case and companion cases portray an unusually contentious and litigious relationship between the parties. In 1993, following years of administrative proceedings and litigation, relator obtained zoning and CUP approvals and began operating a construction and demolition (C&D) landfill on a 28.9-acre parcel in Sherburne County (VONCO I). Activities at the site included demolition, reclamation, and disposal.

Beginning in 1997, relator began the process of site relocation. Again, after years of administrative proceedings and litigation, in 2002, relator was able to relocate VONCO I to a 160-acre parcel (the Anderson Property) also in Sherburne County. However, as part of litigation settlement in 2002, relator and Sherburne County entered into a ?Stipulation of Settlement? (stipulation) wherein relator agreed to exchange the Anderson property for a comparable parcel owned by Xcel Energy, a site favored by the county. Like VONCO I, the new site (VONCO II) was also used for aggregate (gravel) mining, and the reclamation plan included a C&D landfill. The stipulation required the county to ?promptly process VONCO‟s rezoning, CUP and variance applications relating to the New Parcel.? The county complied.

When relator opened VONCO II on the 160-acre ?New Parcel? in Becker Township, it was rezoned from agriculture to heavy industrial and a CUP was issued pursuant to the 2002 stipulation. Under the stipulation, the county agreed that it would 3

not rezone VONCO II to a less intensive zoning classification that would not allow continued operation of relator‟s facility. The stipulation also recognized that relator‟s anticipated acquisition of adjacent expansion parcels may result in additional rezoning, variances and CUPs: The parties recognize that VONCO‟s anticipated acquisition of adjacent parcels may be substantially delayed and, as such, VONCO may have to submit more than one request for the Heavy Industrial rezoning of related property to be included in the New Parcel, including any adjacent parcel(s) owned by VONCO, and there may be more than one request for a CUP and a variance. In this event, County will promptly act on these additional applications . . . . (Emphasis added.) The stipulation did not specify which adjacent parcels were included, but the parties were aware that the new expansion parcels would be adjacent to the VONCO II facility. In 2004, the county board timely approved another CUP allowing relator to exchange 40 acres of the VONCO II property for an adjacent 40 acres in order to square out the site.

In 2006, as anticipated in the 2002 stipulation, relator entered into a purchase agreement to acquire a 200-acre property adjacent to VONCO II (VONCO II expansion). The VONCO II expansion property was zoned for agricultural use, so it could not be used for aggregate mining without a CUP, and also could not be used to operate a landfill without a rezone and a separate CUP. In August 2007, relator submitted an application to rezone the VONCO II expansion property to heavy industrial, and also applied for CUPs to operate an aggregate mine and a landfill. The purpose of the VONCO II expansion is 4

to continue relator‟s aggregate mining easterly onto the newly acquired site, to fill the excavated mine pit with clean demolition debris, to cap the site with topsoil, and to return the property for other uses. While relator was reconfiguring the site and acquiring additional VONCO II property, the City of Becker adopted a comprehensive land use plan in 2004. The city‟s plan included the VONCO II expansion parcel within the bounds of a planned expansion of the city. That same year Sherburne County updated its comprehensive land use plan, showing this site as ?Urban Reserve.? Both of these land use plans established goals and policies for future land use in the city and county. One of the overarching goals of the county‟s land use plan was to work with the townships and cities regarding development based on the needs identified by each local unit of government in their respective comprehensive land use plans. In October 2007, Becker Township adopted a comprehensive land use plan, which designates the VONCO II expansion site for industrial use.

From September 2007 to February 2008, several public hearings were held to discuss relator‟s separate rezoning and CUP applications for aggregate mining and operating a C&D landfill. The county planning commission ultimately recommended denial of the aggregate mining CUP to the county board. On March 11, 2008, the Sherburne County Board of Commissioners denied the CUP for the following reasons:

1. On a per acre basis, mining doesn‟t provide high wage employment opportunities to residents.

2. The City of Becker‟s comprehensive land use plan identifies the affected property as Industrial Reserve which is

5

expected to be the area our Industrial Park expands into the future. Gravel mining operations are not permitted within the City‟s Industrial Park zoning district.

3. If gravel mining occurs on proposed site the city‟s . . . transportation routes are restricted [on Sherburne Avenue].

4. The current access to the 200 acre site is by easement over Xcel Energy‟s property . . . [and causes] visibility & other safety issues. City staff has spoken with [relator] about this as they were looking to relocate the access further east. Staff expressed concern . . . as the access easement was granted for farm equipment when the affected property was being farmed [rather than for] high volumes of semi traffic carrying full loads of gravel & debris. Staff asked [relator] to consider running all of their future truck traffic through their current Vonco II access which they said would not work for them.

5. The property is located adjacent to the proposed Xcel Energy Great River Woodland Trail which the City has received State bonding money to construct. Gravel mining operations create traffic, visibility, noise and odor issues for the future users of this trail system.

6. There is an existing power line easement owned by Xcel Energy that runs through the property . . . [The County knows of no] agreement regarding relocation of that easement or approval from Xcel Energy to mine within that easement.

7. [Relator] has not applied for wetland approvals as required through the MN Wetland Conservation Act for replacing up to 1.04 acres at a minimum 2:1 ratio . . . . [t]he County has not received a wetland replacement plan application. If the County‟s Wetland Technical Evaluation Panel denies the wetland replacement request, this would have a substantial impact as to the determination of this request.

8. Staff commented on the drawings that were submitted by [relator] on Sept. 14, 2007 that there are at least five holding ponds that will require excavation into the 200 ft setback line that [relator] is proposing. The proposed area for wetland replacement is located within the 200 ft setback. The

6

County did not feel this met the setback the [proposal] had originally stated.

9. No Restoration Plan has been submitted that would be an allowable use in the Agricultural District. The only end use [relator] has submitted is for a construction and demolition landfill which is not permitted in the Agricultural District.

10. The applicant has not shown the proposed locations of the warehouse/maintenance and office buildings, the proposed septic system location or the proposed aboveground storage tank in the expansion area as requested by County Staff.

D E C I S I O N Conditional use permits are zoning devices designed to meet problems that arise when certain uses, although generally compatible with the basic use classification of a particular zone, should not be permitted to be located as a matter of right in a particular area of that zone because of hazards inherent in the use itself or because of special problems which its proposed location may present.

Amoco Oil Co. v. City of Minneapolis, 395 N.W.2d 115, 117 (Minn. App. 1986) (citing Zylka v. City of Crystal, 283 Minn. 192, 195, 167 N.W.2d 45, 48 (1969)). By utilizing conditional use permits, "certain uses that may be considered desirable to the community, but which would not be authorized generally in a particular zone because of considerations involving public health, safety, or general welfare, may be permitted upon a proposed site depending upon the facts and circumstances of the particular case." Id. (citing Zylka, 283 Minn. at 195, 167 N.W.2d at 48-49)

A county‟s decision to grant or deny a CUP is quasi-judicial in nature and reviewable by writ of certiorari. Bartheld v. County of Koochiching, 716 N.W.2d 406, 7

411 (Minn. App. 2006). A county‟s quasi-judicial decision to grant or deny a CUP is independently reviewed by an appellate court to determine whether the county acted unreasonably, arbitrarily, or capriciously. Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003). Reasonableness is measured by examining whether the standards in the ordinance have been satisfied. White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982)). ?A county‟s denial of a conditional use permit is arbitrary where the applicant establishes that all of the standards specified by the zoning ordinance as conditions of granting the permit have been met.? Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003).

A county‟s stated reasons for denying a CUP are reviewed and a reversal is warranted ?if the reasons are legally insufficient or if the decision is without factual basis.? Bartheld, 716 N.W.2d at 411. Here, we believe that the county‟s findings are legally insufficient.

At oral argument before this court, each of the ten findings were discussed, but the restoration plan, finding number nine, was clearly the central issue. The restoration plan that relator proposed was to fill the mining pit created by aggregate removal with demolition debris through the operation of a C&D landfill on the site. This is consistent with the existing and adjacent VONCO II operation. But in order to have a C&D landfill on the expansion site, relator had to acquire at least five different approvals: a rezone, a separate CUP, an environmental assessment, a National Pollutant Discharge Elimination System (NPDES) permit, and approval from the Minnesota Pollution Control Agency (MPCA). Since numerous approvals were needed before the C&D landfill could be 8

implemented, relator noted that requiring the restoration plan ? which might not occur until 20 years from now ? to be approved prior to the mining CUP being granted was circular in nature. Relator did not deny that it must comply with a restoration plan, but rather argued that the county could condition its approval of the mining CUP on the county later approving the restoration plan.

Relator‟s argument relies heavily on Trisko v. City of Waite Park, 566 N.W.2d 349 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997). In Trisko, the city board denied a CUP to operate a rock quarry on the grounds that: (1) granting the permit would impede the normal and orderly development of the surrounding property; (2) utilities and drainage were inadequate in that area; (3) fumes, dust, and noise from the site could not adequately be controlled so they created a nuisance to development in the area; (4) there was no demonstrated need for the proposed use; (5) the proposed use was inconsistent with existing and future development in the area; and (6) denial of the permit preserves the land use policies of the city. 566 N.W.2d at 351?52. While each of these reasons facially appeared to comply with the terms of the CUP ordinance, this court determined that ?[e]vidence that a municipality denied a conditional use permit without suggesting or imposing conditions that would bring the proposed use into compliance may support a conclusion that the denial was arbitrary.? Id. at 357. This court reversed because the city‟s denial was unreasonable, arbitrary, and capricious.

Here, the county board did suggest conditions ? 37 in all ? that could be applied to the CUP had it been approved. Many of these suggested conditions were addressed in the board‟s findings denying the CUP. Approval of the CUP with the 37 conditions would 9

have allowed the county‟s concerns to be fully addressed. Following Trisko, and because the county could have approved the CUP with conditions, we find the denial unreasonable, arbitrary, and capricious. See Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 727 (Minn. App. 1988) (reversing the city council‟s decision for legally insufficient reasons where city planner recommended granting the permit with 20 conditions dealing with dust, noise, and traffic, and appellant agreed to take all action necessary to meet the conditions), review denied (Minn. Mar. 23, 1988). Here, the CUP denial arguably leaves relator with property it acquired in good faith upon the 2002 stipulation and now cannot use. Additionally, there are certain criteria for reviewing allegations of denials based upon arbitrariness.

First, while the county can deny a CUP ?for reasons relating to the public health, safety, and general welfare? or for incompatibility with a city‟s land use plan, Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982), it must ?at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.? City of Barnum v. Carlton County, 386 N.W.2d 770, 775 (Minn. App. 1986) (quoting Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981)). In Barnum, this court held that the county acted arbitrarily when the county did not provide minimal reasons for denying the CUP for a sewage treatment plant beyond stating ?it appears that? such a facility would ?substantially diminish and impair property values.? 386 N.W.2d at 775. Here, Sherburne County outlined its reasons for denial in 10

writing, but the findings were presented in a vague and conclusory fashion and all could be addressed as CUP conditions.

At oral argument, the county noted that one factor for denying the CUP was the changes in the comprehensive land use plans since VONCO II‟s CUP approvals in 2002 and 2004. Since the 2002 stipulation, the city of Becker and Becker Township have established comprehensive plans, and the county has revised its plan. Two of the changes outlined in the new and updated land use plans addressed employment goals and industrial zoning. The city of Becker adopted a goal for employment and wages on a per acre basis, and also designated the VONCO II expansion as an ?industrial reserve.?

The board‟s first finding stated that ?[o]n a per acre basis, mining doesn‟t provide high wage employment opportunities to residents.? This finding is mere speculation. There is no evidence on the record regarding wage or employment opportunities in the county generally, nor those that would be specifically created by the proposed expansion. There is also no evidence in the record to substantiate county‟s allegations regarding a lack of ?high wage? employment opportunities. See Trisko, 566 N.W.2d at 356 (holding that the city acted arbitrarily when it based its denial on neighborhood speculation that the quarry could cause respiratory problems).

The board‟s second finding identifies the VONCO II expansion as an Industrial Reserve in the City of Becker where the city plans on expanding its industrial park. Since the city‟s plan does not allow gravel mining operations in that district, the county argues that granting the CUP would be inconsistent with the city‟s new comprehensive plan. But the city‟s comprehensive plan states that industrial reserves are ?[a]reas that 11

are in agricultural use currently and provide expansion opportunities for employment and power generation uses as utility and road infrastructure is available to serve their needs.? Based on the surrounding areas that are also zoned for ?industrial reserve,? it appears that the city simply intends for this land to be used for industrial not residential purposes, so using this particular parcel for aggregate mining does not seem incongruent with an ?industrial reserve.? See Amoco, 395 N.W.2d at 117 (stating that the city council improperly relied on the comprehensive plan‟s classification for a 24-hour gas and grocery store when denying the CUP because such a facility was a proper use). Furthermore, the city‟s comprehensive plan is not binding on the county‟s decision

regarding the aggregate mining CUP, so it is irrelevant that county base their denial on this alleged incompatible use of ?industrial reserve? land.1

1 We note at least two companion cases arising from the VONCO II expansion. Veit U.S.A. Inc. and VONCO Corporation v. Sherburne County, No. 71-CV-08-610 (Minn. Dist. Ct. Nov. 19, 2008); Veit U.S.A. Inc. and VONCO Corporation v. Sherburne County, No. 71-CV-07-1855 (Minn. Dist. Ct. Sept. 5, 2008) [Opinions not available on Westlaw.] (Copies of these decisions were provided at oral argument by agreement.) In No. 71-CV-07-1855, the district court found that [t]he Board of Commissioners failed to adopt „Findings and Determinations‟ denying VONCO‟s rezoning application . . . as required by Minn. Stat. § 15.99, subd. 2(a).? In No. 71-CV-08-610, the district court concluded that ?the Board of Commissioners acted arbitrarily and capriciously in basing its decision on the Urban Reserve designation in the Sherburne County Comprehensive Plan . . . . The district court granted VONCO‟ motion and remanded the matter to the board of commissioners for additional consideration consistent with the court‟ conclusions.

Similarly, transportation, traffic, noise, and odor issues noted in the county‟ third, fourth, and fifth findings, to the extent such concerns were not addressed in VONCO II‟ 12

existing CUP, can be addressed as conditions to this CUP, as can the Xcel Energy power line, wetlands, setbacks, holding ponds, and structure locations.

Second, in the course of the public hearings, the county board admitted that not only does relator have the right to mine gravel, but the county also has a need for it. The county‟ own environmental assessment worksheet noted that ?[m]ining activities may be conducted under the current Sherburne County agricultural zoning designation if a conditional use permit is granted. The Minneapolis-St. Paul metropolitan area is in short supply of gravel and aggregate.?2

2 In 1998 the Minnesota Legislature formed an Aggregate Resources Task Force. 1998 Minn. Laws ch. 401, § 50, at 1818?19. In a report to the legislature in February 2000, the task force noted that ?[i]f aggregate resources are not properly identified and managed, both the environment and the public will suffer detrimental consequences.? In a special session in 2001, the legislature amended Minn. Stat. § 473.859, subd. 2, to require that local comprehensive plans address aggregate resources. See 2001 Minn. Laws 1st Spec. Sess. ch. 8, art. 2, §§ 73?74, at 2014?15. The statute currently reads: ?A land use plan shall also include the local government‟ goals, intentions, and priorities concerning aggregate and other natural resources . . . .? Minn. Stat. § 473.859, subd. 2(d) (2008).

Third, the county did not consider the underlying 2002 stipulation. The 2002 stipulation contemplated that: (1) additional adjacent land would be acquired; (2) the purpose of acquisition was to expand and continue VONCO‟ current mining and landfill operations; and (3) the county would apply the same standards to the expansion parcel as were applied to the existing VONCO II site. Here, the VONCO II expansion parcel adjoins the existing VONCO II parcel to the east. The county knew relator‟ expansion intent when entering into the 2002 stipulation. The agreement stated that the county ?will 13

promptly act on these additional applications.? By denying the CUP for this adjacent expansion parcel, the county ignored the clear purpose of the stipulation. Fourth, the decision of the board appears arbitrary when examining the land uses surrounding the proposed expansion. The surrounding area includes: VONCO II‟ aggregate mine and C&D landfill, the Sherco coal-fired power plant, several Sherco ash ponds, the NRG Energy, Inc. Refuse Derived Fuel incinerator ash landfills, the Monticello Nuclear Generating Plant, and the Knife River cement plant. All are multi-acre sites which appear to be compatible with relator‟ present and expanded use. Relator presents several other arguments that the county‟ discretion was limited in this matter, but because we agree that county board acted arbitrarily and its findings were legally insufficient, we need not reach these arguments. Because the Sherburne County Board of Commissioners acted arbitrarily and capriciously in denying relator‟ CUP, we reverse and remand. Reversed and remanded.

13. A08-216
State of Minnesota, Respondent, vs. Charles Patrick Maiers, Appellant.
Affirmed. Judge Louise Dovre Bjorkman.
Redwood County District Court, Hon. David W. Peterson.

14. A07-1984
State of Minnesota, Respondent, vs. Andre Francis Hall, Appellant.
Affirmed. Judge Lawrence T. Collins.*
Hennepin County District Court, Hon. Lloyd B. Zimmerman.

---

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

MidCountryBank v. Krueger A08-534 Mortgage Record

Court of Appeals Published Opinions

A08-750 Joan M. Krieger, Respondent, vs. City of St. Paul, Appellant;
Dew Corporation, et al., Defendants, and City of St. Paul,
Third Party Plaintiff, vs. Dew Corporation, Third Party
Defendant.
Ramsey County District Court, Hon. Steven D. Wheeler.
For purposes of the trespasser-liability exception to recreational-use immunity, an inherently dangerous condition is not established where death or serious bodily harm might result only in particularly vulnerable users of recreational property.
Reversed and remanded. Judge Heidi S. Schellhas.

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-0750

Joan M. Krieger, Respondent, vs. City of St. Paul, Appellant, Dew Corporation, et al., Defendants, and City of St. Paul, Third Party Plaintiff, vs. Dew Corporation, Third Party Defendant.

Filed March 10, 2009

Reversed and remanded

Schellhas, Judge

Ramsey County District Court

File No. 62-C0-07-002337

Mark J. Fellman, Fellman Law Office, 400 Robert Street North, Suite 1740, St. Paul, MN 55101; and

Wilbur W. Fluegel (co-counsel), Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, MN 55402 (for respondent)

John J. Choi, St. Paul City Attorney, Lawrence J. Hayes, Jr., Assistant City Attorney, 750 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for appellant) 2

Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Schellhas, Judge.

S Y L L A B U S

For purposes of the trespasser-liability exception to recreational-use immunity, an inherently dangerous condition is not established where death or serious bodily harm might result only in particularly vulnerable users of recreational property.

O P I N I O N

SCHELLHAS, Judge

In this tort case, appellant City of St. Paul challenges the district court’s denial of its motion for summary judgment, arguing that it was protected by recreational-use immunity and that certain elements of the trespasser-liability exception to recreational-use immunity are not met in this case. We agree, and therefore reverse and remand for entry of summary judgment in favor of appellant.

FACTS

Respondent Joan M. Krieger alleged that she tripped on a gouge in a temporary walkway located at the North Dale Recreation Center, which was owned by appellant City of St. Paul (the city). The incident happened as Krieger left the recreation center at approximately 9:00 p.m., on March 3, 2004. In her answers to interrogatories, Krieger explained that there were no warning signs or markers indicating areas unsafe for walking, that the area was not illuminated by external lighting, and that she was unable to see that there was a gouge in the temporary surface. No pictures or descriptions of the 3

gouge are contained in the record. As the case progressed, claims against other parties were added and then dismissed. Only Krieger’s claim against the city remains.

The city asserted recreational-use immunity, official immunity, and statutory immunity as affirmative defenses, and twice moved the district court for summary judgment. The court denied both motions. This appeal follows.

ISSUE

Did the district court err in concluding that genuine issues of material fact exist about whether the sidewalk gouge was likely to cause death or serious bodily harm and whether the city had notice of a defect likely to cause death or serious bodily harm?

ANALYSIS

On appeal from summary judgment, we ask (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A genuine issue of material fact exists when reasonable persons can draw different conclusions from the evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). "We review immunity issues de novo, without deference to the district court." Unzen v. City of Duluth, 683 N.W.2d 875, 878 (Minn. App. 2004), review denied (Minn. Oct. 27, 2004).

The city claims protection by recreational-use immunity under Minn. Stat. § 466.03, subd. 6e (2008). Though municipalities are generally liable for their torts, Minn. Stat. § 466.02 (2008), recreational-use immunity is an exception that protects municipalities from suit for some claims. The recreational-use-immunity statute provides immunity from: 4

Any claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, or from any claim based on the clearing of land, removal of refuse, and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and recreation property or services.

Minn. Stat. § 466.03, subd. 6e. The statute also contains an exception: "Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person." Id.

Minnesota courts use the standard for liability to adult trespassers set forth in the Restatement (Second) of Torts § 335 (1965). Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn. 1984). Section 335 imposes liability when a possessor of land (1) creates or maintains an artificial condition, (2) that the possessor knows is likely to cause death or serious bodily harm, (3) where the possessor has reason to believe that trespassers will not discover the condition, and (4) the possessor has failed to warn of the condition and the risk involved. Restatement (Second) of Torts § 335. A landowner is liable only for failing to warn of such dangers. Id. A plaintiff must establish all of the elements of the trespasser-liability exception to recreational-use immunity to defeat an immunity claim. Stiele ex rel. Gladieux v. City of Crystal, 646 N.W.2d 251, 255 (Minn. App. 2002).

The district court ruled that recreational-use immunity applied, that the trespasser-liability exception also applied, and that there were genuine issues of material fact on two elements of the trespasser-liability exception: (1) the existence of a defect likely to cause 5

death or serious bodily harm; and (2) notice of a defect likely to cause death or serious bodily harm. The city argues that Krieger has failed to establish that: (1) a defect existed; (2) any defect was a condition likely to cause death or serious bodily harm; (3) the city had actual notice of a defect likely to cause death or serious bodily harm; (4) the city maintained the walkway in a defective condition; and (5) the defect was concealed. The city also argues that it is entitled to official immunity and statutory immunity.

We conclude that Krieger has failed to establish a genuine issue of material fact as to whether the defect was a condition likely to cause death or serious bodily harm and whether the city had actual notice of the defect. We decline to reach the city’s remaining claims of error.

The district court determined that genuine issues of material fact exist because it could not conclude that the sidewalk gouge was not likely to cause death or serious bodily harm as a matter of law "because the characteristics of the depression or defect in this case are in question." We disagree and conclude that under this court’s precedent, a gouge in a sidewalk, as a matter of law, is not an inherently dangerous condition likely to cause death or serious bodily harm.

This court concluded in Johnson v. State that a raised joint in a sidewalk was not a condition likely to cause death or serious bodily harm, 478 N.W.2d 769, 773 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992), noting that conditions found to satisfy this element "generally have inherently dangerous propensities, such as a high voltage electrical wire." Id. We concluded that it is not enough that serious bodily harm might 6

result, stating that "[t]he remote possibility that death or serious bodily harm could result any time a person falls does not make a raised sidewalk joint rise to the level of an inherently dangerous condition." Id. The city argues that a gouge in a sidewalk is analogous to a raised sidewalk joint and that, like the raised sidewalk joint in Johnson, a gouge in the walkway is not an inherently dangerous condition likely to cause death or serious bodily harm. We agree.

Krieger argues that the city’s reliance on Johnson was unpersuasive before the district court because "the judges recognized that here we are dealing with some fairly aged users of the property." Krieger distinguishes her case from Johnson by emphasizing that in Johnson, the user of the recreational property was an "able-bodied adult female," and she is 78 years old. Krieger also argues, citing Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972), that "[t]he core concept of premises liability" is reasonable care under the circumstances and that the circumstances here, including the age of the entrants, show a risk of serious bodily injury. We reject these arguments.

Krieger points to no language, and we can find none, in the district court’s order reflecting that the district court’s reasoning was based on a conclusion that a risk of serious bodily injury existed in this case because the facility was used by a particularly vulnerable person. And Johnson does not stand for the proposition that the vulnerabilities of the injured party are relevant to the application of the elements of the trespasser-liability exception.

Krieger has provided no authority establishing that for purposes of the trespasser-liability exception, the dangerousness of a condition is evaluated by considering the 7

danger posed to particularly vulnerable users of recreational property. The authority cited by Krieger, Peterson, does not address the trespasser-liability exception. In Peterson, the supreme court abolished "the traditional distinctions governing licensees and invitees" in determining a landowner’s duty to entrants and held that the landowner owes a duty of reasonable care to licensees and invitees. 294 Minn. at 164, 173-74, 199 N.W.2d at 642, 647. The supreme court specifically declined to "rule on the question of a landowner’s duty toward trespassers." Id. at 164, 199 N.W.2d at 642. Because the duty at issue in this case is the duty owed to a trespasser, Peterson is not controlling. And we have found no authority establishing that a condition that might create a risk of death or serious bodily harm to particularly vulnerable users of recreational property constitutes an inherently dangerous condition for purposes of the trespasser-liability exception to recreational-use immunity. In the absence of contrary authority, we follow Johnson and conclude that a gouge in a sidewalk is not an inherently dangerous condition likely to cause death or serious bodily harm.

Because Krieger has not established that the gouge was a condition likely to cause death or serious bodily harm, she has failed to establish an element of the trespasser-liability exception to recreational-use immunity.

We need not address Krieger’s remaining claims of error, but we will address her argument that the city had notice of the condition of the sidewalk, that is, the gouge. Krieger relies entirely on a constructive-knowledge standard and concedes that her case fails if an actual-knowledge standard is applied. Actual knowledge is required. See Prokop v. Indep. Sch. Dist. No. 625, 754 N.W.2d 709, 715 (Minn. App. 2008) (ruling, 8

following most recent precedent on point, that actual knowledge is required). For this additional reason, we conclude that Krieger has failed to establish all the elements of the trespasser-liability exception to recreational-use immunity.

D E C I S I O N

Because (1) a gouge in a sidewalk is not an inherently dangerous condition likely to cause death or serious bodily harm and (2) the element of actual knowledge of the landowner is not met in this case, Krieger has failed to establish two elements of the trespasser-liability exception to recreational-use immunity. We decline to adopt respondent’s argument that for purposes of the trespasser-liability exception to recreational-use immunity, the dangerousness of a condition must be assessed by considering the danger to particularly vulnerable users of recreational property. Therefore, we conclude that the city is entitled to summary judgment.

Reversed and remanded.

A08-534 MidCountry Bank, f/k/a First Federal fsb, Appellant, vs.
Frederick C. Krueger, Respondent; Nancy Krueger,
Respondent; Cherolyn A. Hinshaw, et al., Respondents.
Scott County District Court, Hon. Rex D. Stacey.
A purchaser of real property is charged with constructive notice of the contents of a mortgage recorded in a county's grantor-grantee index and tract index.
Reversed. Judge Larry B. Stauber, Jr.

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-0534

MidCountry Bank, f/k/a First Federal fsb, Appellant, vs. Frederick C. Krueger, Respondent, Nancy Krueger, Respondent, Cherolyn A. Hinshaw, et al., Respondents.

Filed March 10, 2009

Reversed

Stauber, Judge

Scott County District Court

File No. 70CV0624231

Justin P. Weinberg, Charles W. Hanson, Gislason & Hunter LLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073-0458 (for appellant)

Frederick C. Krueger, 4420 Blakewood Drive, Shakopee, MN 55379-5826 (pro se respondent)

Nancy Krueger, 4420 Blakewood Drive, Shakopee, MN 55379-5826 (pro se respondent)

James M. Lockhart, Christopher R. Grote, Karla M. Vehrs, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2205 (for respondents Hinshaw and PHH Home Loans, LLC)

Considered and decided by Stauber, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge. 2

S Y L L A B U S

A purchaser of real property is charged with constructive notice of the contents of a mortgage recorded in a county’s grantor-grantee index and tract index.

O P I N I O N

STAUBER, Judge

Appellant mortgage company challenges the district court’s summary judgment in favor of respondent purchaser and her lender, arguing that the court erred as a matter of law in finding that respondent was a bona fide purchaser because she was charged with constructive notice of appellant’s underlying priority mortgage interest in her property. Because respondent is charged with constructive notice of the mortgage that appeared in the county’s grantor-grantee index, we reverse.

FACTS

On March 21, 2000, James and Nancy Krueger purchased and acquired legal title to a parcel of land (the Hinshaw property). On May 13, 2004, they purchased two additional parcels of land (parcels 1 and 2) and simultaneously executed a mortgage securing both these parcels and the Hinshaw property in favor of appellant lender MidCountry Bank (MidCountry). On May 19, 2004, they delivered the warranty deed conveying parcels 1 and 2, and MidCountry’s mortgage securing parcels 1, 2, and the Hinshaw property to the Scott County Recorder for recording.

The Scott County Recorder’s office, as required by statute, maintains two indices: the historically primary grantor-grantee index, which indexes recorded real estate 3

documents by parties’ names; and the more recently required tract index, which indexes recorded real estate documents by legal description.

During the recording process of MidCountry’s mortgage, the Scott County Recorder neglected to index the legal description for the Hinshaw property as one of three parcels encumbered by the MidCountry mortgage on the tract index.1 The effect of this error was that the MidCountry mortgage did not appear in the tract index for the Hinshaw property. The MidCountry mortgage was, however, properly and timely recorded, and assigned document number A657036. The MidCountry mortgage was indexed in the Scott County grantor-grantee index in association with the Kruegers’ names as an encumbrance against parcels 1, 2, and the Hinshaw property. Thus, a search of the grantor-grantee index would reveal the document number of MidCountry’s mortgage (A657036), and upon viewing the mortgage document one would find that it encumbered the Hinshaw property.

1 Scott County engages in a practice it calls "cloning" when it indexes documents. Essentially, if two documents affecting one property are delivered to the recorder’s office, the county copies or "clones" the legal description from the first document to the second document so as to avoid typing the information into the system twice. Here, it appears that the Recorder erred in that it cloned the two newly acquired Krueger parcels from the warranty deed to the companion MidCountry mortgage, neglecting to observe that the companion mortgage encumbered three parcels, including the Hinshaw property.

In 2006, respondent Cherolyn Hinshaw sought to purchase the Hinshaw property from the Kruegers. Hinshaw hired Burnet Title, Inc., to examine the title to the Hinshaw property. Burnet Title, Inc.’s abstractor examined the Scott County tract index, and found no encumbrance indexed against the Hinshaw property. The abstractor admits that 4

she did not examine Scott County’s grantor-grantee index before closing on the Krueger to Hinshaw transaction.

On May 12, 2006, Hinshaw closed on her purchase of the Hinshaw property. The Kruegers delivered a warranty deed, and simultaneously Hinshaw executed a mortgage deed in favor of her lender PHH Home Loans LLC (PHH). On May 31, 2006, the Hinshaw deed and PHH mortgage were properly recorded with the Scott County Recorder, in both indices, as documents numbered A740490 and A740491, respectively. The underlying MidCountry mortgage was not satisfied at closing.

Some time thereafter the Kruegers stopped making their mortgage payments to MidCountry. In October 2006, MidCountry brought a judicial foreclosure action against the Kruegers, Hinshaw, and PHH. On October 18, 2006, MidCountry delivered a notice of lis pendens on the Hinshaw property to the Scott County Recorder for recording.

It appears that in late October 2006, Scott County corrected its records by indexing MidCountry’s mortgage in the tract index for the Hinshaw property. The mortgage foreclosure lis pendens was indexed in the Hinshaw tract index in March 2007.

MidCountry pursued its judicial foreclosure action in the Scott County District Court by a summons dated October 3, 2006, naming the Kruegers, Hinshaw, and PHH as defendants. The parties made cross-motions for summary judgment. MidCountry argued that it was entitled to summary judgment because, while its mortgage interest in the Hinshaw property did not appear in the Scott County tract index, it did appear in conjunction with the Kruegers’ names in the grantor-grantee index, which Hinshaw was obligated to search. MidCountry claimed that Hinshaw could not be a bona fide 5

purchaser because she was charged with constructive notice of the contents of the documents recorded in both indices. Hinshaw and PHH argued that MidCountry’s mortgage was not properly recorded because it did not appear as an encumbrance in Scott County’s tract index until October 2006; therefore, Hinshaw did not have constructive notice at the time she purchased the Hinshaw property in May 2006. Hinshaw claimed she was a bona fide purchaser, against whom MidCountry’s mortgage interest was void.

The district court found that MidCountry’s prior mortgage was not properly recorded because the tract index searches did not reveal that it encumbered the Hinshaw property. The court held that the date, time stamp, and recording document number on the MidCountry mortgage were not evidence that it was properly recorded. Thus Hinshaw and PHH, who recorded their interests in the Hinshaw property in May 2006, could not be charged with actual, implied, or constructive notice of MidCountry’s mortgage, and were entitled to judgment as a matter of law. MidCountry brought this appeal.

ISSUES

I. Did the district court err in granting summary judgment to Hinshaw on the basis that she was a bona fide purchaser?

II. Did the district court err in failing to grant summary judgment to MidCountry on the basis that its prior mortgage was properly recorded?

ANALYSIS I.

MidCountry contends that the district court erred in granting Hinshaw summary judgment and ruling that she was a bona fide purchaser. "On an appeal from summary 6

judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Here, the factual issues are not in dispute and the only question we must decide is whether the district court erred as a matter of law. A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003).

The Minnesota Recording Act protects the property interests of purchasers of property who purchase in good faith, for valuable consideration, and who properly record their interests:

Every conveyance of real estate shall be recorded in the office of the county recorder of the county where such real estate is situated; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any part thereof, whose conveyance is first duly recorded, and as against any attachment levied thereon or any judgment lawfully obtained at the suit of any party against the person in whose name the title to such land appears of record prior to the recording of such conveyance.

Minn. Stat. § 507.34 (2008). A "bona fide purchaser," against whom a prior conveyance is void, must purchase his or her interest in property "in good faith and for a valuable consideration . . . without actual, implied, or constructive notice of inconsistent outstanding rights of others." Anderson v. Graham Inv. Co., 263 N.W.2d 382, 384 (Minn. 1978) (quotation omitted). 7

Historically, real estate records were maintained in a grantor-grantee index allowing title examiners to follow the "chain of title" from one owner to the next. Other related indices allowed examiners to similarly trace real estate mortgages. These have now been generally consolidated in the grantor-grantee index. Minn. Stat. § 386.03 (2008). Some counties also maintained a tract index, but it was not until 2005 that the legislature amended section 386.05 to mandate that a county recorder "procure . . . and keep in the office of the county recorder suitable books or electronic media . . . to allow information to be . . . retrieved by the [legal] description of each [parcel of land] . . . and recite . . . the recorded document number . . . . Such tract index shall be kept as one of the records in the office." 2005 Minn. Laws ch. 4, § 75, at 40 (emphasis added) (now codified at Minn. Stat. § 386.05 (2008)).

The result is that Minnesota statutes, since 2005, require county recorders to maintain two recording indices, the historically primary grantor-grantee index and the newly required tract index. Although electronic recording systems now permit a recorded document to be simultaneously indexed in both indices, it is still possible that the indexer could, as here, err such that the document is indexed in only one of the statutorily-required indices. The Scott County Recorder’s indexing error, using the cloning shortcut, occurred because the indexer neglected to read the entire legal description recited in the text (page 3) of MidCountry’s mortgage. This resulted in the mortgage not being indexed in the required tract index.

The burden of proving bona-fide-purchaser status is on the party seeking to show that he or she is a bona fide purchaser. Miller v. Hennen, 438 N.W.2d 366, 369 (Minn. 8

1989). The parties agree that Hinshaw purchased the property for valuable consideration and recorded her interest. It remained Hinshaw’s burden to show that she had no actual, implied, or constructive notice of MidCountry’s mortgage interest in the Hinshaw property. MidCountry asserts that Hinshaw had constructive notice of its outstanding interest in the Hinshaw property, and so its priority mortgage is valid against her.

"Constructive notice is a creature of statute and, as a matter of law, imputes notice to all purchasers of any properly recorded instrument even though the purchaser has no actual notice of the record." Miller, 438 N.W.2d at 369–70. "The purpose of the record is to give notice of the existence and contents of the instrument recorded . . . ." Thorwarth v. Armstrong, 20 Minn. 464, 467 (1874). MidCountry claims that Hinshaw is charged with constructive notice of its mortgage interest in the Hinshaw property because its mortgage was properly recorded, and appeared in the Scott County Recorder’s grantor-grantee index effective May 19, 2004. A purchaser is charged as a matter of law with constructive notice of any "properly recorded" instrument. Minn. Stat. § 507.32 (2008). We believe that MidCountry’s mortgage was properly recorded.

The MidCountry mortgage was delivered for recording to the Scott County Recorder’s office on May 19, 2004. The mortgage was given the document number A657036, and was stamped "Office of the County Recorder, Scott County, Minnesota, Certified Filed and/or Recorded on 05-19-2004 at 02:15 . . . . Pat Boeckman, County Recorder." Section 386.41 (2008) provides that an instrument is properly recorded if the document bears the certificate of the county recorder: 9

Every county recorder shall endorse upon each instrument recorded, over the recorder’s official signature, OFFICE OF THE COUNTY RECORDER, . . . COUNTY, MINNESOTA, CERTIFIED, FILED, AND/OR RECORDED ON, the date and time when it was recorded and the document number and/or book and page in which it was recorded; every instrument shall be considered as recorded at the time so noted.

(Emphasis added). The MidCountry mortgage satisfied these requirements.

The Scott County Recorder admits that it erroneously indexed the MidCountry mortgage by only "cloning" the legal descriptions for parcels 1 and 2 to the tract index, while entirely omitting the Hinshaw property. Thus, the mortgage did not appear in the tract index for the Hinshaw property when that index was searched preliminary to Hinshaw’s closing. However, this does not mean that the mortgage was improperly recorded. The MidCountry mortgage bore the recording certificate and information required by Minn. Stat. § 386.41. The certificate of recording is presumptive proof that the document was properly recorded. See Thomas v. Hanson, 59 Minn. 274, 279–80 61 N.W. 135, 136–37 (1894) (holding that the recorder’s certificate is sufficient evidence that document was recorded without proof of the appointment or election of the recorder). Further, the Scott County Recorder admits that MidCountry’s mortgage appeared in the grantor-grantee index as of May 2006. Absent some evidence that the contents of the MidCountry mortgage did not include the Hinshaw property, we conclude that MidCountry’s mortgage was properly recorded. 10

Next we must determine whether the MidCountry mortgage, as recorded and indexed, charged Hinshaw with constructive notice that it encumbered the Hinshaw property. Typically, when a purchaser applies for a real estate mortgage, the mortgagee will require an up-to-date abstract or similar indicia of title marketability. 6A Steven J. Kirsch & Robert Beutel, Minnesota Practice § 44.2 (3d ed. 1990). Real estate title searches are done by licensed abstracters, who build or extend formal abstracts by tracing the various indices down to the current date.

The purpose of an abstract of title is to afford a prospective purchaser or mortgagee of land a simplified and convenient method of ascertaining the condition of the title and the land without having to make a painstaking search of all of these various records, or a portable index from which he or his attorney may make the search.

Id. at § 44.1 (3d ed. 1990). The resulting abstract would show the "chain of title," including encumbrances and other relevant recorded documents. An attorney would examine the updated abstract and render a written opinion of title to the prospective buyer or lender. The title opinion would recite not only ownership of the property, but recorded encumbrances as well.

Prior to closing on her purchase of the Hinshaw property, Hinshaw hired an abstracter to conduct a title search. Unfortunately, the abstracter, using an electronic system for searching land title records, searched only the tract index and not the grantor-grantee index. This abbreviated search did not indicate MidCountry’s recorded mortgage indexed in the Scott County tract index. Additionally, the Kruegers apparently did not 11

disclose the existence of MidCountry’s mortgage, so the closing on the sale to Hinshaw took place without satisfying the mortgage.

The parties agree that Scott County, as with all Minnesota counties, maintains by statute both the grantor-grantee index and the tract index. "A subsequent purchaser is presumed to have examined the whole record, and he is charged with such knowledge as the proper index entries afford, as well as with notice of the facts derived from the transcript of the [recorded document] itself." Latourell v. Hobart, 135 Minn. 109, 113–14, 160 N.W. 259, 260–61 (1916). The record consists of "the entries required by law to be made in the reception books, and the transcribing of the instrument into the record book." Id. at 113, 160 N.W. at 260. As stated earlier, as of 2005, counties must keep both grantor-grantee and tract indices. Minn. Stat. §§ 386.03 (as to the grantor-grantee index); 386.05 (as to the tract index).

Minnesota Title Standards for Examination of Title (Title Standards) establish the industry standard for title examinations. The recently revised Title No. 37, entitled "INSTRUMENTS RECORDED OUTSIDE THE LINE OF SEARCH IN GRANTOR-GRANTEE INDEX," states the following:

An instrument necessary to the chain of title or affecting a title, but recorded at a point in time prior to the date of a recorded instrument creating a source of title, so as not to be within the scope of an examination of the county recorder’s grantor reception book and grantee reception book, does not constitute constructive notice of the contents of such instrument, and such instrument should be re-recorded unless it has been of record for at least five years or appears in the tract index. 12

Minnesota Title Standards for Examination of Title, Standard No. 37 (2008) (emphasis added). The Title Standards Committee cautions that "[t]o the extent the county recorder maintains a tract index[,] examination must be made of the tract index." Id. The committee’s explanation of Standard No. 37 states: "The amendment recognizes that counties are now required to maintain a tract index as part of their official records. The former comment is changed to a caution and revised to reflect that the tract index, to the extent one is maintained, must be examined." Id. Accordingly, a person is charged with constructive notice of the information indexed in both indices.

Hinshaw contends that, even though MidCountry’s mortgage appeared in the grantor-grantee index as of May 2006, she was not obligated to look beyond the computerized document inquiry to the contents of the document itself. The purpose of the record is to provide purchasers with notice "of the existence and contents" of recorded instruments. Thorwarth, 20 Minn. at 467. The constructive notice imputed to a purchaser by the record of an instrument is strictly confined to that which is set forth on its face. Bank of Ada v. Gullikson, 64 Minn. 91, 94, 66 N.W. 131, 132 (1896); see also Miller, 438 N.W.2d at 370 ("A recorded interest is constructive notice only of the facts appearing on the face of the record." (quotation omitted)). The record includes not only the document numbers as indexed, but also the contents, including legal descriptions, of the instruments as recorded. Document numbers in either index contain no mention of the terms recited therein. "The entries required by law to be made in the reception books, and the transcribing of the instrument into the record book, constitute the full record of the [instrument]. Each supplies defects in the other in giving constructive notice." 13

Latourell, 135 Minn. at 113, 160 N.W.2d at 260 (quotation omitted). Thus, while Hinshaw was under no duty to search beyond the record itself, she was obligated to read the entire record, which included MidCountry’s mortgage, referred to by document number A657036, in the grantor-grantee index.

Hinshaw further argues that Scott County’s error in failing to index the MidCountry mortgage in the tract index should prevent her from being charged with constructive knowledge of its existence, citing caselaw from other jurisdictions that purportedly support this contention. However, we are not aware of any Minnesota precedent that supports her contention, and the cases so cited do not indicate what recording systems and indices are used. Our courts have held that a document that is "so mis-recorded as to be, in effect, not recorded at all," can be no notice to anyone. Thorp v. Merrill, 21 Minn. 336, 339 (1875). In Thorp, the subject instrument contained an erroneous legal description of the property to which the mortgage applied. Id. at 337–38. But here, the document was not mis-recorded because it met the recording requirements, and the legal description was accurate (including the Hinshaw description). Here, the mortgage as recorded accurately reflects the contents of the original document.

The Scott County Recorder’s error in indexing MidCountry’s mortgage did not prevent Hinshaw from being charged with constructive notice. The mortgage appeared in the primary grantor-grantee index, and Hinshaw is charged with knowledge of the contents of the documents recorded in that index as well as the newer tract index. This constructive knowledge prevents her from being a bona fide purchaser, and therefore, the district court erred as a matter of law in granting her summary judgment on this basis. 14

Accordingly, Hinshaw and PHH’s interests in the Hinshaw property were subject to MidCountry’s prior, properly recorded mortgage, of which Hinshaw and PHH were charged with constructive knowledge. II.

This case arose from the parties’ cross-motions for summary judgment. The parties agree that there are no genuine issues of material fact precluding a grant of summary judgment.2 Because we hold that, as a matter of law, a party is charged with constructive notice of the contents of properly recorded documents indexed in both the grantor-grantee index and the tract index, MidCountry was entitled to judgment as a matter of law on its claim that Hinshaw and PHH acquired the Hinshaw property subject to its prior mortgage interest. MidCountry’s mortgage was properly recorded first, and therefore its interest is not void as against a subsequent purchaser, respondent Hinshaw. D E C I S I O N A purchaser is charged with constructive notice of properly recorded real estate documents indexed in the grantor-grantee index and in the tract index. We therefore reverse the decision of the district court ruling that respondent was a bona fide purchaser and order that judgment be entered in favor of appellant. Appellant’s mortgage, though indexed only in the grantor-grantee index, creates a recording priority against respondent Hinshaw’s deed and respondent PHH’s mortgage.

2 Appellant argues that genuine issues of material fact exist. Because this argument has been raised for the first time on appeal, we do not consider that argument. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Reversed.

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