PortAuthority v. AdvanceShoring Ins A07-2206 Eminent Domain

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-2206

http://mncourts.gov/opinions/coa/current/opa072206-1223.pdf

Port Authority of the City of St. Paul, petitioner, Respondent, vs. RLR, Inc., et al., Defendants, Insurance Auto Auctions, Inc., Appellant.

Filed December 23, 2008

Reversed

Peterson, Judge

Ramsey County District Court

File No. 62-CV-07-729

Daniel J. Supalla, Marc J Manderscheid, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Mark J. Kiperstin, Daniel N. Rosen, Parker Rosen L.L.C., 300 First Avenue North, Suite 200, Minneapolis, MN 55401 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Shumaker, Judge.

S Y L L A B U S

To satisfy the requirement in Minn. Stat. § 117.041, subd. 2(a)(1) (2006), that it has reason to believe that acquisition of property may be required pursuant to eminent-domain proceedings, a political subdivision must identify a public use or public purpose for which the property could be acquired in eminent-domain proceedings. 2

O P I N I O N

PETERSON, Judge

In this appeal from a district court order that grants respondent access to appellant‟s property for the purpose of conducting environmental testing, appellant argues that respondent did not meet the requirements under the eminent-domain statute for entering property to conduct environmental tests. We reverse.

FACTS

Respondent Port Authority of the City of St. Paul (the port authority) is a governmental subdivision established under Minn. Stat. § 469.049 (2006). The port authority may create and define the boundaries of industrial development districts to establish and develop a system of industrial developments. Minn. Stat. § 469.058, subd. 1 (2006). For the purpose of industrial development, the port authority may exercise the power of eminent domain under Minn. Stat. ch. 117, which is the general eminent-domain statute that establishes procedures for exercising the power of eminent domain. Minn. Stat. § 469.059, subd. 4 (2006). See generally Minn. Stat. ch. § 117 (2006) (establishing eminent-domain procedures).

In 1993, the port authority created an industrial and economic development district called the Arlington-Jackson Development District. The parcels of property in the western section of the district, which is referred to as "Arlington-Jackson West," are identified as parcels 1 through 19. Parcels 11-14 constitute the majority of Arlington-Jackson West and are occupied in whole or in part by appellant Insurance Auto Auctions, Inc. (IAAI). 3

From 1994 through 1997, the eastern part of the Arlington-Jackson Development District was developed as Phase I. During development planning in 1994 and 1995, the port authority hired American Engineering Test, Inc. to perform environmental analyses of the properties within the development district. The initial environmental analyses completed during Phase I determined that lead, petroleum, and other hazardous materials are present in the Arlington-Jackson West properties.

On April 24, 2007, the port authority passed Resolution 4212, which authorized the port authority‟s staff, legal counsel, contractors, or agents to obtain the consent of the owners and occupants of properties in Arlington-Jackson West to allow the port authority to conduct environmental testing and inspection of the properties, and if they could not obtain consent, to obtain a court order pursuant to Minn. Stat. § 117.041 (2006) to allow the testing and inspection. The port authority‟s stated bases for Resolution 4212 were that (1) because of the marginal condition of Arlington-Jackson West, the minimal jobs located there, and the lack of investment during recent years, the port authority had reason to believe that acquisition of the properties pursuant to eminent domain proceedings may be required; (2) prior and current uses of the properties and environmental testing conducted during Phase I gave the port authority good reason to believe that hazardous substances, pollutants, and/or contaminants are present in the area and that a release of one or more of these materials may have occurred; and (3) entry onto the properties is rationally related to the health, safety, or welfare concerns of the citizens of St. Paul and necessary for the purpose of environmental testing to identify the 4

existence and extent of any release or threat of release of a hazardous substance, pollutant, or contaminant.

On June 29, 2007, the port authority filed a petition in the district court seeking an order to enter a number of properties in Arlington-Jackson West, including appellant‟s property, "for purposes of investigation, monitoring, testing, surveying, boring, or other similar activities necessary or appropriate to identify the existence and extent of a release or threat of release of a hazardous substance, pollutant, or contaminant." IAAI and other landowners in Arlington-Jackson West requested a continuance for more time to review the evidence and submitted a memorandum opposing respondent‟s petition.

The district court held an evidentiary hearing to determine whether the port authority met the requirements under the eminent-domain statute for entering a property for the purpose of environmental testing. In an order filed on October 31, 2007, the district court granted the port authority access to several parcels in Arlington-Jackson West for the requested purpose of environmental testing. Although the order granted access to a number of parcels, only IAAI appealed.

I S S U E

Did the port authority meet the requirements under Minn. Stat. § 117.041 to obtain an order authorizing it to enter IAAI‟s property to conduct environmental testing?

ANALYSIS

"On appeal, a [district] court‟s findings of fact are given great deference, and shall not be set aside unless clearly erroneous. . . . If there is reasonable evidence to support the [district] court‟s findings of fact, a reviewing court should not disturb those findings." 5

Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (citation omitted). "An appellate court is not bound by, and need not give deference to, the district court‟s decision on a question of law." Bondy v. Allen, 635 N.W.2d 244, 249 (Minn. App. 2001) (citing Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984)). "Issues involving the correct application of a statute are questions of law, which we review de novo." In re Wrongful Death Proceeds for Next of Kin of Markuson, 685 N.W.2d 697, 702 (Minn. App. 2004).

IAAI argues that the district court erred by concluding that the port authority satisfied the requirements under the eminent-domain statute for obtaining an order authorizing the port authority to enter IAAI‟s property to conduct environmental testing.

The eminent domain statute states:

A . . . political subdivision by resolution may enter property for purposes of investigation, monitoring, testing, surveying, boring, or other similar activities necessary or appropriate to identify the existence and extent of a release or threat of release of a hazardous substance, pollutant, or contaminant if:

(1) the . . . political subdivision has reason to believe that acquisition of the property may be required pursuant to eminent domain proceedings;

(2) the . . . political subdivision has reason to believe that a hazardous substance, pollutant, or contaminant is present on the property or the release of a hazardous substance, pollutant, or contaminant may have occurred or is likely to occur on the property; and

(3) entry on the property for environmental testing is rationally related to health, safety, or welfare concerns of the . . . political subdivision in connection with possible eminent domain proceedings.

Minn. Stat. § 117.041, subd. 2(a) (2006). 6

The statute further provides that before entering the property, the political subdivision must ask the property owner for permission to enter, and if the owner refuses to consent to the entry, the political subdivision must apply for a court order authorizing the entry. Id., subd. 2(b) (2006). If the political subdivision meets the standards in Minn. Stat. § 117.041, subd. 2(a), the court shall issue an order. Id.

The port authority applied for a court order authorizing it to enter IAAI‟s property, and the district court concluded that the port authority met all three standards in Minn. Stat. § 117.041, subd. 2(a). IAAI does not dispute that the port authority met the standards set forth in Minn. Stat. § 117.041, subd. 2(a)(2)-(3); it argues only that the port authority did not meet the standard in Minn. Stat. § 117.041, subd. 2(a)(1).

Minn. Stat. § 117.041, subd. 2(a)(1) requires the port authority to show that it has reason to believe that acquisition of IAAI‟s property pursuant to eminent-domain proceedings may be required. IAAI argues that the port authority did not meet this standard because it did not show that there is any purpose for which the port authority could use eminent-domain proceedings to acquire IAAI‟s property, and if eminent-domain proceedings could not be used to acquire the property, the port authority could not have reason to believe that it may be required to use eminent-domain proceedings to acquire the property.

IAAI‟s argument is based on the fundamental principle that the power of eminent domain can only be used to acquire property for a public use or public purpose. See Hous. & Redevelopment Auth. v. Schapiro, 297 Minn. 103, 106, 210 N.W.2d 211, 213 (Minn. 1973) ("It is elementary that the power of condemnation may be exercised only 7

for a public use or purpose."). In 2006, the legislature affirmed this principle when it amended the eminent-domain statute to expressly state, "Eminent domain may only be used for a public use or public purpose." 2006 Minn. Laws ch. 214, § 1 at 195 (codified as Minn. Stat. § 117.012, subd. 2 (2006)).

In 2006, the legislature also defined "public use" or "public purpose" for the purposes of Minn. Stat. ch. 117 and any other general or special law authorizing the exercise of the power of eminent domain. This definition states:

(a) "Public use" or "public purpose" means, exclusively:

(1) the possession, occupation, ownership, and enjoyment of the land by the general public, or by public agencies;

(2) the creation or functioning of a public service corporation; or

(3) mitigation of a blighted area, remediation of an environmentally contaminated area, reduction of abandoned property, or removal of a public nuisance.

(b) The public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, do not by themselves constitute a public use or public purpose.

2006 Minn. Laws ch. 214, § 2 (codified at Minn. Stat. § 117.025, subd. 11 (2006) (emphasis added).

IAAI contends that because the port authority did not identify a public use or public purpose for which IAAI‟s property would be used, the port authority did not demonstrate that it has reason to believe that it would be required to use eminent-domain proceedings to acquire IAAI‟s property. The district court concluded: 8

In Resolution 4212, the Port Authority had reason to believe that the lack of economic investment, the marginal condition of the Arlington-Jackson West properties, and the discovery and environmental analysis demonstrating contamination, satisfied the criteria of Subdivision 2(a)(1) of Minn. Stat. § 117.041. The Port Authority concluded it has reason to believe that acquisition of some or all of the Parcels in Arlington-Jackson West may be required. Therefore, Minn. Stat. § 117.041, Subd. 2(a)(1) is satisfied.

But Resolution 4212 does not identify "the discovery and environmental analysis demonstrating contamination" as a basis for the port authority having reason to believe that acquisition of some or all of the parcels in Arlington-Jackson West pursuant to eminent-domain proceedings may be required. Resolution 4212 identifies "the results of environmental analyses done during Phase I" as a basis for the port authority having "good reason to believe that one or more hazardous substances, pollutants, and/or contaminants are present in the western section of the District and the release of one or more hazardous substances, pollutants, and/or contaminants . . . may have occurred in the western section of the District." Having reason to believe that hazardous substances, pollutants, and/or contaminants are present on the property satisfies the standard in Minn. Stat. § 117.041, subd. 2(a)(2), but having reason to believe only that these substances are present in some quantity is not sufficient to satisfy the standard in Minn. Stat. § 117.041, subd. 2(a)(1), which requires that the port authority have reason to believe that acquisition of IAAI‟s property pursuant to eminent-domain proceedings may be required.

Under Minn. Stat. § 117.025, subd. 11(a)(3), "remediation of an environmentally contaminated area" is a public use or public purpose for which 9

property may be acquired under the eminent-domain statute. But for purposes of the eminent-domain statute,

"Environmentally contaminated area" means an area:

(1) in which more than 50 percent of the parcels contain any substance defined, regulated, or listed as a hazardous substance, hazardous material, hazardous waste, toxic waste, pollutant, contaminant, or toxic substance, or identified as hazardous to human health or the environment under state or federal law or regulation; and

(2) for which the estimated costs of investigation, monitoring and testing, and remedial action or removal, as defined in section 115B.02, subdivisions 16 and 17, respectively, including any state costs of remedial actions, exceed 100 percent of the assessor‟s estimated market value for the contaminated parcel, as determined under section 273.11, for property taxes payable in the year in which the condemnation commenced, or for which a court of competent jurisdiction has issued an order under law or regulations adopted by Minnesota or the United States, that clean up or remediation of a contaminated site occur and the property owner has failed to comply with the court‟s order within a reasonable time.

Minn. Stat. § 117.025, subd. 8 (2006) (emphasis added). Under the plain language of this definition, which requires that the conditions in both paragraphs (1) and (2) be met to demonstrate that property is in an environmentally contaminated area, it is not sufficient to show only that there are parcels in the area that contain a statutorily identified substance. It is necessary to show that more than 50% of the parcels contain the identified substances and that either (a) the estimated costs of investigation, monitoring, testing, and remedial action or removal of the substances exceeds the assessor‟s market value of the property; or (b) a court has ordered that 10

clean up or remediation of the property occur and the property owner has failed to comply with the order within a reasonable time.

Resolution 4212 does not address the estimated costs of identifying and removing the substances on IAAI‟s property or indicate that a court has ordered that either clean up or remediation of the property occur, and no evidence that addresses these elements of the definition of "environmentally contaminated area" was admitted at the hearing before the district court. Without evidence that at least one of these elements exists, the port authority could not have reason to believe that acquiring IAAI‟s property pursuant to eminent-domain proceedings may be required in order to remediate an environmentally contaminated area. Therefore, the district court erred in concluding that the port authority satisfied the requirement in Minn. Stat. § 117.041, subd. 2(a)(1).

The port authority argues that it made the showing required under Minn. Stat. § 117.041, subd. 2(a)(1), because the operative term in Minn. Stat. § 117.041, subd. 2(a)(1), is "may," and "may" is permissive. See Minn. Stat. § 645.44, subd. 15 (2006) ("„May‟ is permissive."). But although the port authority is correct that when used in Minnesota Statutes, "may" is permissive, applying this meaning in Minn. Stat. § 117.041, subd. 2(a)(1), supports our conclusion that the port authority did not satisfy the requirement in that statute.

To satisfy this requirement, the port authority needed to show that it "has reason to believe that acquisition of the property may be required pursuant to eminent domain proceedings." Minn. Stat. § 117.041, subd. 2(a)(1). Simply inserting the statutory 11

definition of "may" into this phrase leads to the conclusion that the port authority needed to show that it has reason to believe that acquisition of the property is permitted pursuant to eminent-domain proceedings. To show that it has reason to believe that acquisition of the property is permitted pursuant to eminent-domain proceedings, the port authority would need to show that there is a public use or a public purpose for the acquisition. The port authority argues correctly that it did not need to show that it will acquire the property pursuant to eminent-domain proceedings; it only needed to show that it may. But it may acquire the property pursuant to eminent-domain proceedings only if there is a public use or a public purpose for the acquisition, and the port authority did not identify a public use or public purpose for which it could acquire IAAI‟s property.

Because we are reversing the district court‟s order authorizing the port authority to enter IAAI‟s property to conduct environmental testing, the port authority is not authorized to conduct environmental testing, and IAAI‟s claims that the environmental testing constitutes an unreasonable search and seizure and a taking that requires just compensation have become moot. Therefore, we will not address the claims.

D E C I S I O N

Because the port authority did not identify a public use or public purpose for which IAAI‟s property could be acquired in eminent-domain proceedings, it did not satisfy the standard in Minn. Stat. § 117.041, subd. 2(a)(1), to obtain an order authorizing it to enter the property to conduct environmental testing.

Reversed.

Leslie Davis, Pro Se, Environmentalist A08-62

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).

http://mncourts.gov/opinions/coa/current/opa080062-1223.pdf

STATE OF MINNESOTA IN COURT OF APPEALS A08-0062

Leslie Davis, Appellant, vs. Hennepin County, Respondent. Filed December 23, 2008 Affirmed Minge, Judge Hennepin County District Court File No. 27-CV-07-15407 Leslie Davis, P.O. Box 11688, 622 Lowry Avenue North, Minneapolis, MN 55411 (pro se appellant) Michael O. Freeman, Hennepin County Attorney, Julie K. Bowman, Assistant County Attorney, A2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Connolly, Presiding Judge; Minge, Judge; and Crippen, Judge.*

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

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

MINGE, Judge

Appellant initiated a declaratory judgment action pursuant to the Minnesota Environmental Policy Act to challenge the adequacy of an environmental impact 2

statement. The district court ordered appellant to post a bond pursuant to Minn. Stat. § 116D.04, subd. 10 (2006) and Minn. Stat. § 562.02 (2006). Appellant challenges the district court’s dismissal of his action for his failure to post the bond. We affirm. FACTS

In 2006, the state of Minnesota enacted legislation providing for the construction, financing, and long-term use of a baseball stadium called the Minnesota Urban Ballpark.1 2006 Minn. Laws ch. 257, §§ 5–18 (codified as Minn. Stat. §§ 473.75–763 (2006)). The legislation specifically designated the downtown Minneapolis site where the ballpark would be constructed and mandated that an environmental impact statement (EIS) be prepared. Minn. Stat. § 473.752. However, the legislation states that the EIS "shall not be required to consider alternative ballpark sites." Minn. Stat. § 473.758, subd. 1(1). Further, the legislation designated respondent Hennepin County as the responsible governmental unit (RGU) for the purpose of the EIS. Minn. Stat. § 473.758, subd. 1. Work could not begin on the foundation of the ballpark until the EIS was deemed adequate by the RGU. Minn. Stat. § 473.758, subd. 2.

1 The ballpark as built will be known as Target Field.

Anticipating the legislative action and expecting to be the RGU, the county began an environmental review of the project in 2005 by determining the scope of the eventual EIS. Identification of the scope of the EIS is a step required by law. Minn. Stat. § 116D.04, subd. 2a(f) (2006). In 2007, the county incorporated the scoping determination in its order directing preparation of the EIS for the ballpark site. Appellant Leslie Davis participated in both the scoping process and the development of the EIS, 3

making both oral and written comments on the scoping document and the draft EIS. The final EIS for the Minnesota Urban Ballpark (Ballpark EIS) was deemed adequate by the Hennepin County Board of Commissioners on June 26, 2007.

Davis brought a declaratory action in district court on July 26, 2007, requesting that the Ballpark EIS be deemed inadequate and ordering that the process be reopened. Davis argued that the Ballpark EIS failed to meet the requirements of the scoping document because it did not consider "air quality issues to determine the impacts on users of the ballpark which include fans and all employees."

Hennepin County responded to the Davis lawsuit with a motion for a bond pursuant to Minn. Stat. § 116D.04, subd. 10 (2006) and Minn. Stat. § 562.02 (2006). Both parties submitted documents and memoranda regarding the motion, and on September 20, 2007, the district court took the motion under advisement. In response to a request by Davis, the district court gave Davis until October 10, 2007 to file supplemental material and the county until October 17 to do the same. Both parties timely submitted substantial material. No one submitted and the record does not include either the scoping document or the Ballpark EIS.

Davis moved to suppress evidentiary material in affidavits accompanying and relied on in Hennepin County’s October 17 supplemental memorandum. Davis contended that this material and arguments in the supplemental memorandum were improper because they were submitted after the district court took the motion under advisement and had not been previously disclosed to him. Davis claimed that allowing such material in the record and considering it violated his right to procedural due process 4

of law. Davis did not request an opportunity to respond to the county’s supplemental filings.

On November 14, 2007, without ruling on the motion to suppress, the district court determined that Davis was not likely to succeed on the merits of his claim and granted Hennepin County’s motion to require Davis to post bond. The district court set the bond amount at $45,628,000 and required Davis to post the bond no later than November 30, 2007. The amount of the bond was based on the district court’s determination of the predicted loss to taxpayers resulting from a delay in the construction of the ballpark. Because Davis failed to post the bond, the district court dismissed his action with prejudice. Following an unsuccessful request for reconsideration and mandamus proceeding, Davis initiated this appeal.

D E C I S I O N

On appeal, Davis argues (1) the district court erred in its determination that his claim was unlikely to succeed on the merits; (2) the district court abused its discretion in requiring Davis to post a bond; (3) his in forma pauperis status and the Minnesota Constitution precluded the district court from requiring him to furnish a bond; (4) by allowing the county’s supplemental filing and not ruling on his motion to exclude that filing, the district court denied him procedural due process of law; (5) the district court erred in identifying his action as a duplicative proceeding; (6) the district court improperly inserted itself into the position of the RGU; and (7) the legal system should recognize that his action "represents the will of the people." 5

I.

The first issue is whether the district court erred in its determination that Davis’s claim was unlikely to succeed on the merits. The Minnesota Environmental Policy Act (MEPA), permits a person to seek review of the adequacy of an EIS in district court. Minn. Stat. § 116D.04, subd. 10. MEPA also allows the district court to require a plaintiff to file a bond pursuant to Minn. Stat. § 562.02 if the plaintiff cannot show "that the claim has sufficient possibility of success on the merits to sustain the burden required for the issuance of a temporary restraining order." Id.

The likelihood of the claim’s success on the merits is one of the so-called Dahlberg factors used to determine whether a plaintiff has met his burden for a temporary restraining order or injunction. Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965); Minneapolis Fed’n of Teachers, AFL-CIO, Local 59 v. Minneapolis Pub. Schs., 512 N.W.2d 107, 110 (Minn. App. 1994), review denied (Minn. Mar. 31, 1994). This court reviews the denial of a temporary injunction for a clear abuse of discretion. Earth Protector, Inc. v. City of Hopkins, 474 N.W.2d 454, 455 (Minn. App. 1991).

To demonstrate the likelihood of success on the merits of his claim, Davis would have to demonstrate that the county board’s decision to adopt the EIS reflects an error of law, that the board’s findings accompanying the EIS are arbitrary and capricious, or that the findings are unsupported by substantial evidence. Citizens Advocating Responsible Dev. v. Kandiyohi County Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006). 6

An agency finding is arbitrary and capricious if the agency: (a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency’s expertise.

White v. Dep’t of Natural Res., 567 N.W.2d 724, 730-731 (Minn. App. 1997) (emphasis added) (citing Minnegasco v. Minn. Pub. Utils. Comm’n, 529 N.W.2d 413, 418 (Minn. App. 1995), rev’d on other grounds, 549 N.W.2d 904 (Minn. 1996)), review denied (Minn. Oct. 31, 1997). In reviewing the quasi-judicial decision of an agency or of a local unit of government, the focus of this court’s review is on the proceedings before the decision making body and not the trial court. See Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993) (appellate review of city’s determination that an environmental assessment worksheet was required for proposed concrete recycling facility). Whether or not Davis was likely to succeed on the merits of his claim is a fact specific determination which required the district court (and requires this court) to examine the proceedings before and the decision of the Hennepin County Board of Commissioners. See id.; Dahlberg, 272 Minn. at 275, 137 N.W.2d at 321.

Davis’s claim that his action was likely to succeed on the merits requires an adequate record. The record in this judicial proceeding contains the Hennepin County Board of Commissioner’s summary of the underlying basis for its decision, which indicates that the Board of Commissioners: (1) analyzed: (a) the Ballpark EIS, (b) the comments on the EIS, and (c) the comments on the scoping document; and (2) determined the actual Ballpark EIS was adequate. Davis has not provided this court 7

or the district court with the actual Ballpark EIS, the actual scoping document, or the record of the proceeding before the Hennepin County board. Without this basic material, the district court and this appellate court lack an adequate and necessary record to evaluate the RGU’s decision and thus Davis’s likelihood of success on the merits. Accordingly, we reject Davis’s challenge to the district court’s finding that he was unlikely to succeed on the merits.2 II. The second issue before this court is whether the district court abused its discretion in requiring Davis to post a bond in the amount of $45,628,000. Under MEPA, once there is a finding that a plaintiff is unlikely to succeed on the merits, the district court may then order the posting of a bond under Minn. Stat. § 116D.04, subd. 10. The relevant law describes this bond as follows:

2 We note that, although it was not argued by Davis on appeal, it appears that the district court looked to Minn. Stat. ch. 116B to evaluate Davis’s claim and not Minn. Stat. ch. 116D. Additionally, although the district court made a finding that the final EIS does not analyze the cumulative effect of pollution on the stadium users, this finding was made without an adequate record to determine whether Davis was likely to succeed on the merits. Thus, regardless of the reason, the district court’s ultimate decision to dismiss was not in error.

If the court determines that loss or damage to the public or taxpayers may result from the pendency of the action or proceeding, the court may require such party, or parties, to file a surety bond, which shall be approved by the court, in such amount as the court may determine. The court must also consider whether the action presents substantial constitutional issues or substantial issues of statutory construction, and the likelihood of a party prevailing on these issues, when determining the amount of a bond and whether a bond should be required under this section or section 473.675. Such bond shall be conditioned for payment to the public body of any 8

loss or damage which may be caused to the public body or taxpayers by such delay, to the extent of the penal sum of such bond, if such party, or parties, shall not prevail therein. If such surety bond is not filed within a reasonable time allowed therefore by the court, the action shall be dismissed with prejudice. If such party, or parties, file a bond as herein required and prevail in the action, any premium paid on the bond shall be repaid by or taxed against the public body.

Minn. Stat. § 562.02. The constitutionality of Minn. Stat. § 562.02 was upheld in Gram v. Vill. of Shoreview, 259 Minn. 145, 154, 106 N.W.2d 553, 559 (1960). The statute has been held to provide broad discretion to the district court in the determination of the amount necessary to protect the public interest in setting the bond. Pike v. Gunyou, 491 N.W.2d 288, 291 (Minn. 1992). The appellate courts will uphold the requirement of a surety bond under Minn. Stat. § 562.02 unless there is a clear abuse of discretion. Id.

In The Kilowatt Org. (TKO), Inc. v. Dep’t of Energy, Planning & Dev., 336 N.W.2d 529, 530 (Minn. 1983), appellant challenged the district court’s order that TKO post a $6,000,000 bond under Minn. Stat. § 562.02. The supreme court observed that "[a]lthough it is true that judicial review may be effectively precluded if a district court imposes a high monetary bond, that result was clearly considered by the Legislature in enacting section 562.02." Id. at 533. TKO acknowledged that a bond under Minn. Stat. § 562.02 may be excessive if viewed from the plaintiff’s perspective, but that amount is not an abuse of discretion when it is justified by evidence of potential harm to the public. Id.; see also Pike, 491 N.W.2d at 291-92 (upholding a $30,000,000 bond requirement on two individuals when that amount reflected the anticipated cost to the state and taxpayers that would be created by a delay caused by litigation). 9

Here, the district court concluded that the bond requirement was authorized by law and then evaluated whether a bond was appropriate under the circumstances. The record contains evidence that the continued pendency of Davis’s lawsuit would cause losses to the county in the amount of $45,628,000. Obviously, this is an enormous amount. However, the district court accepted the conclusion that the county would be harmed by the full amount of $45,628,000. Davis does not challenge the various elements of damage claimed by the county that are the basis of the bond. Rather, he complains generally that the district court imposed a substantial bond.

The budget for the ballpark was set in the ballpark legislation and allowed the county to expend $260,000,000 on the ballpark and another $90,000,000 for land, site improvements, public infrastructure, and other items. Minn. Stat. § 473.757, subd. 3. The county presented evidence that the pendency of litigation would delay construction and that, if the ballpark construction were to be delayed, the city and county would lose money as a result of a loss in tax revenue, increased construction costs, and additional costs associated with issuing bonds. Based on the record on appeal, we conclude that the district court did not abuse its discretion in determining that a very substantial bond was appropriate under Minn. Stat. § 562.02.

Additionally, Davis argued for the first time in his reply brief that in deciding to require a bond the district court failed to properly consider whether his claim presents substantial constitutional issues or substantial issues of statutory construction. However, other than the issues next considered in this opinion, Davis presents no constitutional or statutory-construction issues in his principal brief. Because issues not raised or argued in 10

Davis’s principal brief cannot be presented for the first time in a reply brief, we do not address these issues. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).

III.

The third issue is whether either Davis’s status as an in forma pauperis litigant or the Minnesota constitutional clause assuring an injured party a remedy precludes the district court from ordering him to post a bond.

Davis’s in forma pauperis argument confuses the distinction between a bond for costs and the type of bond required under Minn. Stat. § 562.02. Cost bonds secure the payment of court costs that may be assessed against a party to litigation. Minn. Stat. §§ 549.02, .18 (2006). Minnesota statutes expressly limit the requirement of a cost bond in in forma pauperis proceedings. See Minn. Stat. § 563.01; § 549.02. But as previously stated, the bond in this case is designed to protect the taxpayers and the public from the damages that may be caused by the disruptive effect and delays incident to the litigation. Pike, 491 N.W.2d at 291-92. Because the bond at issue here is a type of injunction bond, it is not subject to the in forma pauperis limits.

In addition, Davis points to the language in the Minnesota Constitution which states:

Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws. 11

Minn. Const. art. I, § 8. As previously stated, the Minnesota Supreme Court has upheld the constitutionality of Minn. Stat. § 562.02. Gram, 259 Minn. at 154, 106 N.W.2d at 559. In reaching that conclusion, the court indicated that a plaintiff’s inability to post the bond does not determine its constitutionality. Id. Although draconian bonding requirements should not be used to prevent judicial scrutiny of the legality of governmental action, persons without resources do not have a license to serve as plaintiffs in speculative litigation with devastating costs to society. We have already addressed the appropriateness of imposing the bond. Davis has not provided a record that allows a judicial determination that his litigation has been wrongfully stymied because of the bonding requirement, and accordingly, we reject the claims made in this section. IV.

The fourth issue before this court is whether Davis was denied procedural due process of law when the district court refused to rule upon his motion to suppress the material filed by the county with the district court on October 17, 2007, and the denial of Davis’s motion to reconsider.3 Generally, procedural and evidentiary rulings are within the district court’s discretion and appellate courts review these rulings for an abuse of discretion. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied

3 We note that Davis raised these challenges in a previous petition for writ of mandamus. The court of appeals in an order opinion denied Davis’s petition on the basis that Davis had "not provided copies of the motions that he seeks to have heard in the district court and we are unable to evaluate his entitlement to a hearing on those motions." Davis v. Hennepin Co., No. A07-2259 (Minn. App. Dec. 11, 2007), review denied (Minn. Jan. 29, 2008). 12

(Minn. Oct. 24, 2001). However, claims of denial of due process are reviewed de novo. Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999). Procedural due process of law guarantees a civil litigant "reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decision maker, and the right to a reasonable decision based solely on the record." Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). In reviewing the district court’s procedural and evidentiary rulings or its failure to rule, Davis has the burden of providing an adequate record for appeal; this court will not presume error. Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976).

First, Davis challenges the district court’s failure to rule on his motion to suppress evidence. Hennepin County argues that the motion to suppress was not properly before the district court and that the district court had the discretion not to address the motion. Hennepin County did not articulate in its brief why the motion was allegedly not properly before the court nor has Davis presented any argument as to why his motion was procedurally proper. Regardless, because Davis failed to present a prima facie case that his claim would succeed on the merits, the failure to suppress rebuttal evidence presented by Hennepin County would be harmless error.4 See Minn. R. Civ. P. 61 (requiring that harmless error be ignored).

4 We note that Davis failed to ask leave to respond to the additional evidence. This was an appropriate and relatively simple procedure for dealing with the perceived unfairness 13

of the county’s supplemental filing. With such an unused procedure available, we decline to assume Davis was the victim of a due process error of constitutional proportions.

Second, Davis argues the district court improperly denied him a hearing on his motion to reconsider the bond and that the district court had no discretion in denying his motion. At the outset, we note that the decision to grant a motion to reconsider or reduce the bond is left within the district court’s discretion. See Minn. R. Gen. Prac. 115.11. Whether Davis intended to bring a motion to reconsider under the rules or to bring a motion for reduction of the bond under Minn. Stat. § 562.03 (2006), Davis failed to identify new factual information to support "finding that the amount [of the bond] is excessive or the bond no longer required." Minn. Stat. § 562.03. Because Davis fails to advance any arguments in support of a claim of abuse of discretion or that there was a newly identified factual dispute, we find that the denial of Davis’s motion to reconsider was not an abuse of discretion and that doing so without a hearing was not a denial of Davis’s due process rights.

V.

The fifth issue before this court is whether the district court erred in its determination that Davis’s action was "the type of duplicative litigation" the bond statute was designed to prevent. This reference to "duplicative litigation" appears to be based on the supreme court’s language in TKO where the court stated:

While this court does not suggest that TKO is an irresponsible litigant, TKO certainly has been intimately and steadfastly involved with the entire administrative proceeding. . . . Under these circumstances, we conclude that the district court’s application of section 562.02 was consistent with the 14

legislative goal of permitting public projects to advance by discouraging needlessly duplicative proceedings.

336 N.W.2d at 532 (noting TKO’s involvement in the administrative proceeding as an intervenor).

Here, the district court determined that Davis was unlikely to succeed on the merits of his case and that the harm to the public that may result from the litigation required a bond under Minn. Stat. § 562.02. The district court then reviewed Davis’s extensive involvement with the proceedings prior to the litigation and determined Davis’s "extensive previous involvement in the process indicates the present proceeding is the type of duplicative litigation Minn. Stat. § 562.02 is designed to prevent without some form of bond." Contrary to Davis’s characterization, the district court did not determine that, when there is an open, public process such as the series of proceedings in which Davis had participated, that his lawsuit was an unnecessary duplicative proceeding. Rather, the district court determined that because the lawsuit involved a repetition of the earlier county EIS process, the requirement that he show a likelihood of success or post a bond was important to protect governmental entities against losses caused by this type of litigation.

Regardless of the district court’s comment that Davis’s litigation was duplicative, Davis still had to demonstrate the likelihood of success on the merits to avoid the bonding requirement under Minn. Stat. § 562.02. As previously concluded, Davis has not met this burden and any mischaracterization of his lawsuit as duplicative would be harmless error. See Minn. R. Civ. P. 61. 15

VI.

The sixth issue before this court is whether the district court improperly inserted itself into the position of the RGU when it decided that Davis’s claim was unlikely to succeed on the merits. Because we determine that Davis’s lawsuit should have been dismissed, we reject Davis’s challenge on this sixth issue.

VII.

Finally, Davis argues that the "will of the Sovereign People of the state of Minnesota" has required that the health of the people be a "paramount and controlling concern." We respect Davis’s intent of requiring Hennepin County to follow the law. However, to the extent this argument invites the appellate court to be a political forum, it is misdirected. "The function of the court of appeals is limited to identifying errors and then correcting them." Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). We do not weigh the pros and cons of policy decisions.

Affirmed.

Dated:

Port Authority,Leslie Davis,Mn Courts,Environment

In keeping with Environmental Issues Conflicting Cases , WE MUST HAVE UNIFORMITY, RULE OF LAW,DUE PROCESS TO ALL. Gearin also on currant Canvass. contrary to MN Const. Art.III Separation of Powers.

http://www.mncourts.gov

Unpublished_Retired Judges denying due process to any all ProSe Litigants by Bonding Indebtness Court of Appeals Unpublished Opinions same day Published Opinions Court of Appeals Published Opinions

A07-2206 Port Authority of the City of St. Paul, petitioner,
Respondent, vs. RLR, Inc., et al., Defendants;
Insurance Auto Auctions, Inc., Appellant.
Ramsey County District Court, Hon. Kathleen R. Gearin.
To satisfy the requirement in Minn. Stat. § 117.041, subd. 2(a)(1) (2006), that it has reason to believe that acquisition of property may be required pursuant to eminent-domain proceedings, a political subdivision must identify a public use or public purpose for which the property could be acquired in eminent-domain proceedings.
Reversed. Judge Randolph W. Peterson.

23rDec08 Tues

15. A08-62
Leslie Davis pro se Appellant, vs. Hennepin County, Respondent.
Affirmed. Judge David Minge.http://mncourts.gov/opinions/coa/current/opa080062-1223.pdf

Appellant initiated a declaratory judgment action pursuant to the Minnesota Environmental Policy Act to challenge the adequacy of an environmental impact

• Document

Aurelia Tessmer v. City St.PaulA07-2349

We the Public must challenge Constitutionality of 480. Judiciary conflicting

with "due process" with MS480A meaning Annotated/Appeals, Special Statutes?

480A. Court Of Appeals

Court of Appeals Unpublished Opinions

25. A07-2349
Aurelia Tessmer, Relator, vs. City of Saint Paul, Minnesota, Respondent.
Affirmed. Judge Francis J. Connolly.
City of St. Paul.

http://www.mncourts.gov/opinions/coa/current/opa072349-1216.pdf

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-2349

Aurelia Tessmer, Relator, vs. City of Saint Paul, Minnesota, Respondent.

Filed December 16, 2008

Affirmed

Connolly, Judge City of St. Paul

Council File No. 07-944

Jane L. Prince, 1004 Burns Avenue, St. Paul, MN 55106 (for relator)

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

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

CONNOLLY, Judge

Relator argues that this court does not have jurisdiction to hear this appeal, and yet still requests that this court reverse the order of the Saint Paul City Council to demolish her property as being arbitrary and capricious. Because this court has jurisdiction to hear 2

this appeal, and because the order to demolish was not arbitrary and capricious, we affirm. FACTS Relator Aurelia Tessmer is the owner of property located at 332 St. Clair Avenue in Saint Paul. The structure at issue is a two-story duplex on a 6,534 square foot lot (the property). An inspection was conducted on the property on August 6, 2004. The Division of Code Enforcement for the City of Saint Paul determined that there were numerous code violations in need of attention and sent relator a correction notice advising her of the problems. The violations included deteriorating eaves and soffits, flaking paint on the exterior walls and/or trim, stairs and windows in need of repair, and missing window and/or door screens. The notice advised relator that the property would be reinspected on or about August 20, 2004, and that she had the right to appeal. No appeal was taken from this notice.

On October 11, 2004, the city condemned the property. In addition to the deficiencies listed in the correction notice, notice was given that the foundation, roof, and exterior walls of the house were in disrepair.1 Relator was again notified that she could appeal this notice, but no appeal was taken.

1 The missing window and/or door screens were not mentioned in the condemnation notice.

On May 4, 2005, an order to abate nuisance building was sent to relator, indicating that the property was a nuisance in violation of the Saint Paul Legislative Code, section 45.02 and subject to demolition under the authority of section 45.11. Twelve specific 3

code violations on the exterior of the house were noted. The order went on to notify relator that the deficiencies needed to be corrected by June 3, 2005. A code compliance inspection report was provided to relator detailing extensive interior and exterior building code violations and electrical, plumbing, and heating deficiencies.

A legislative hearing was held on July 5, 2005. At that hearing, a staff member testified that the property’s condition remained unchanged and that the only steps taken to fix the deficiencies were the completion of the code compliance inspection report and the posting of a $2,000 bond. Relator was present at that hearing and indicated a desire to repair the property. The legislative hearing officer informed relator that she would need to put together a plan for repairs with a general timeframe for completion and information on her financial ability to complete the repairs, or she would need to provide information on her plans to sell the property with the buyer providing proof of his or her financial ability to complete the repairs. The aforementioned information and proof that delinquent taxes had been paid needed to be provided within two weeks to the city council.

A city council public hearing was held on July 20, 2005. The legislative hearing officer recommended that relator be given 15 days to remove or repair the property because, although the taxes had been paid, no work plan or financial information had been received. After hearing the recommendation, the matter was laid over for two weeks.

Another city council meeting was held two weeks later. Because no additional information had been forthcoming in the elapsed time, the legislative hearing officer 4

recommended that a 30-day remove or repair order be issued. The council adopted this recommendation unanimously and issued the order with written findings. Subsequent to that order, the property sat vacant, and was neither repaired nor demolished. During this time, the city tried to work with relator to avoid demolition.

The case was back before the city council one year later. At that time, an indefinite stay was placed on the remove or repair order, with a progress report to be given in six months.

The six-month progress report occurred on February 7, 2007. It was determined that there had been no change in the status of the property and the stay was continued indefinitely.

On August 8, 2007, another council meeting was held where the property was discussed. Other than an emergency abatement on the porch, the status of the property had not changed. As a last avenue for saving the property, the matter was referred to the Heritage Preservation Commission to determine if the building had historic significance. The matter was laid over for four weeks to give the commission time to evaluate the property. The commission did not recommend that the property be considered a historic resource.

On October 3, 2007, Mr. Weseth was identified as the new owner of the property. Because Weseth had been involved with the property previously, the legislative hearing officer did not believe that the property had been obtained in an arm’s-length transaction. The matter was continued for one week because the council member from the ward where the property was located was not present. 5

On October 9, 2007, a legislative hearing was held regarding the property. The legislative hearing officer informed Weseth that he had until noon the following day to produce title to the property, a work plan, a financing plan, and a performance bond.

The next day, the legislative hearing officer reported to the city council that none of the documents requested had been received, and she recommended that the stay be vacated and that the council adopt the resolution ordering demolition of the building. The city council voted unanimously to vacate the stay of the demolition order and to allow commencement of the demolition proceedings. The resolution was signed by the mayor of Saint Paul. A notice to proceed with demolition was issued by the Division of Code Enforcement on November 7, 2007. This appeal follows. D E C I S I O N

I. This court has jurisdiction to hear an appeal of the city council’s order to demolish a house. "A city or town may enact and enforce ordinances to address the problem of hazardous buildings." City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn. App. 2000) (citing Minn. Stat. § 463.26 (1998)). "Unless there is statutory authority for a different proceeding, a party may obtain review of a quasi-judicial decision by an executive body that does not have statewide jurisdiction only by writ of certiorari" to this court. Id.

Relator argues that appeals from a city order to remove or repair are properly taken to the district court, not to the court of appeals. Relator attempts to distinguish Meldahl, arguing that Saint Paul city ordinances provide authority for a different 6

proceeding. "The interpretation and application of a city ordinance is a question of law, which we review de novo." Staeheli v. City of St. Paul, 732 N.W.2d 298, 307 (Minn. App. 2007).

The order to abate nuisance building, dated May, 4, 2005, was the triggering event for the demolition process. This order stated that the property comprised a nuisance in violation of the Saint Paul Legislative Code, section 45.02, and was subject to demolition under the authority of section 45.11. Under that provision of the code, the involvement of the legislative hearing officer is discretionary. "Prior to the hearing, the legislative hearing officer appointed by the council president shall provide the appellant with an opportunity to meet and informally discuss the matter. The legislative hearing office may submit to the council a recommendation based on the information obtained at such a meeting." St. Paul, Minn., Legislative Code § 45.11(4a) (2006) (emphasis added). The parties seem to agree that chapter 45 of the code does not provide for an appellate process to the district court. Therefore, based on Meldahl, a writ of certiorari to this court would be the proper remedy.

Relator, however, argues that chapter 18 of the St. Paul Legislative Code actually applies to this case. Chapter 18 states:

The legislative hearing officer shall have the authority to hear appeals to orders, decisions or determinations of the enforcement officers or others and make recommendations to the city council . . . . All matters, orders, decisions and determinations of the hearing officer shall be forwarded to the city council in resolution form within ten (10) days of the hearing officer’s actions. The city council shall have the authority to approve, modify, reverse, revoke, wholly or partly, the hearing officer’s orders, decisions or 7

determinations and shall make such order, decision or determination as ought to be made.

St. Paul, Minn., Legislative Code § 18.01 (2006). The chapter goes on to say that "[a]ny person aggrieved by the final decision of the legislative hearing officer may obtain judicial review by timely filing of an action seeking review of such decision as provided by law in district court." St. Paul, Minn., Legislative Code § 18.03 (2006). Relator argues that the legislative hearing officer’s decision was effectively the final decision ordering demolition because the city council must always consider the hearing officer’s decision. According to relator, if the hearing officer’s decision could never be considered to be the final decision because all "orders, decisions and determinations" must be forwarded to the city council, any right to appeal the hearing officer’s decision to the district court would be read out of the code entirely.

But relator misses the point in that the applicable provision of the code to this case is chapter 45, not chapter 18. Chapter 18 refers to the city council’s ability to address "orders, decisions, or determinations." Under chapter 45, the hearing officer’s role is limited to an informal one, and issuance of a recommendation is not mandatory. In this case, the legislative hearing officer merely chose to make a recommendation to the city council. Because this was a nuisance-abatement proceeding and the legislative hearing officer did not make the final decision, chapter 45 applies, and there is no need to harmonize the provisions of these different chapters of the code.

Relator further argues that because a full hearing was held before the legislative hearing officer, rather than just an informal meeting, chapter 18 must apply. Relator was 8

given more procedural safe-guards than required under chapter 45. But that does not change the fact that the legislative hearing officer only made a recommendation to the city council, and chapter 45 is the applicable provision to a nuisance-abatement proceeding. Chapter 45 does not provide statutory authority for an appellate proceeding, thereby requiring that any appeal be taken by a writ of certiorari to this court. See Meldahl, 607 N.W.2d at 171 ("Unless there is statutory authority for a different proceeding, a party may obtain review of a quasi-judicial decision by an executive body that does not have statewide jurisdiction only by writ of certiorari."). II. The city council’s order to demolish relator’s house was not arbitrary and capricious.

A municipality’s decision to demolish a building is quasi-judicial. Meldahl, 607 N.W.2d at 171. "[W]hen examining quasi-judicial municipal proceedings, we review the evidence only to determine whether it supports the findings of fact or the conclusions of law, and whether the municipality’s decision was arbitrary or capricious." In re Dakota Telecomm. Group, 590 N.W.2d 644, 646 (Minn. App. 1999).

The decision to demolish the property was supported by substantial evidence in the record. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Wagner v. Minneapolis Pub. Sch., Special Sch. Dist. No. 1, 569 N.W.2d 529, 532 (Minn. 1997) (quotation omitted).

Relator was made aware of the numerous code violations on the property in August 2004. She was given many opportunities over a period of years to detail her plans to fix the problems but none was forthcoming. The record indicates that the city 9

council was reluctant to go through with the demolition because "[i]t is a good house and. . . they can come out ahead if they [find] an owner for it or a buyer." The council even stated that they wanted to keep trying to help relator. They waited to proceed with the demolition for two years after notice of the code violations was first sent to relator. The city is not required to extend endless leniency when dealing with nuisance buildings. See Ukkonen v. City of Minneapolis, 280 Minn. 494, 500, 160 N.W.2d 249, 253 (1968) ("Greater leniency than here evinced might well frustrate an important public interest.").

Furthermore, despite relator’s argument to the contrary, the property does not need to be considered a dangerous structure to be ordered demolished under St. Paul Legislative Code, Chapter 45. There is an emergency abatement procedure set out in section 45.12 to deal with structures that will endanger the health or safety of the public. This nuisance abatement was brought under section 45.11.

In conclusion, there is nothing in the record to indicate relator, or a new owner, was in a position to abate the nuisance. The city council gave relator multiple opportunities to save the property and she did nothing. The decision to demolish the property was not arbitrary or capricious.

Affirmed.

Nancy Lazaryan v.Karen Guilfoile A08-0276_A08-0461 MN

http://www.mncourts.gov/opinions/coa/current/opa080276-1216.pdf

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA IN COURT OF APPEALS A08-0276 A08-0461 Nancy C. Lazaryan, Appellant, William M. Kayser, Plaintiff, vs. Karen Guilfoile, City Clerk for the City of Maplewood, in her personal and professional capacity, et al., Defendants (A08-276), Respondents (A08-461), H. Allan Kantrud, interim attorney for the City of Maplewood, in his personal and professional capacity, Respondent. Filed December 16, 2008 Affirmed

Huspeni, Judge* Ramsey County District Court File No. 62-C6-06-009458 Nancy C. Lazaryan, 10734 West Lake Road, Rice, MN 56367 (pro se appellant) Patricia Y. Beety, Ryan M. Zipf, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103-2044 (for respondents Karen Guilfoile, et al.)

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 2

Frederic W. Knaak, Greg T. Kryzer, Knaak & Kantrud, P.A., 3500 Willow Lake Boulevard, Suite 800, Vadnais Heights, MN 55110 (for respondent H. Allan Kantrud)

Considered and decided by Klaphake, Presiding Judge; Larkin, Judge; and Huspeni, Judge.

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

HUSPENI, Judge

Appellant argues that the district court did not have jurisdiction in this case. Because the district court had both personal and subject-matter jurisdiction, we affirm.

FACTS

During the summer of 2006, appellant Nancy Lazaryan made several written requests to respondent Karen Guilfoile, city clerk for the City of Maplewood, for the release of government documents under the Minnesota Government Data Practices Act (MGDPA). On August 7, 2006, less than a month after her first request for data, appellant filed suit against Guilfoile, the City of Maplewood, and Maplewood‟s city attorney Alan Kantrud, for allegedly violating the MGDPA. Appellant brought a motion for summary judgment and default judgment and a motion to add additional defendants, all of which the district court denied. Subsequently, respondents Guilfoile and the City of Maplewood moved for rule 11 sanctions, which were awarded against appellant in the amount of $1,940.

On August 9, 2007, the district court granted summary judgment in favor of Guilfoile and the City of Maplewood. Judgment was entered on August 22. On November 30, 2007, the district court granted summary judgment in favor of Kantrud. 3

Judgment was entered on December 13. Appellant filed a notice of appeal on February 11, 2008. On February 27, 2008, the district court entered a judgment against appellant for $2,494 in costs, disbursements, and sanctions.

A special term panel of this court determined on March 4, 2008, that the portion of the appeal relating to the December 13, 2007 award of summary judgment in favor of Kantrud was properly appealed. The panel also determined that the portion of the appeal relating to the August 22, 2007 granting of summary judgment in favor of Guilfoile and the City of Maplewood was untimely and was, therefore, dismissed. Lastly, the panel found that the portion of the appeal relating to the February 2, 2007 order for sanctions was taken from a nonappealable order. Thus, the only portion of the February 11, 2008 appeal that survived was that relating to the award of summary judgment in favor of Kantrud.

Appellant filed another appeal on March 10, 2008. A special term panel of this court determined on March 13, 2008, that the portion of this appeal relating to the August 22, 2007 granting of summary judgment in favor of Guilfoile and the City of Maplewood was still untimely and was, therefore, dismissed. The panel further determined that the portion of the appeal relating to the February 27, 2008 judgment for sanctions was now properly before this court. The panel consolidated the two appeals—the summary judgment awarded to Kantrud and the sanctions award.

D E C I S I O N

In her sole argument on appeal appellant insists that the district court did not have jurisdiction in this case. Appellant does not contend that summary judgment was 4

improper as a matter of law, and therefore this issue is waived. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) ("This issue was not argued in the briefs and accordingly must be deemed waived."). Notwithstanding respondent Kantrud‟s request that we decline to address the sole issue raised by appellant because she did not raise the issue before the district court, we shall address the issue on the merits. Subject-matter jurisdiction may be raised at any time. Cochrane v. Tudor Oaks Condominium Project, 529 N.W.2d 429, 432 (Minn. App. 1995) (citing Minn. R. Civ. P. 12.08(c)), review denied (Minn. May 31, 1995). And for the sake of full analysis, we shall also address the merits of appellant‟s attack on personal jurisdiction.

Questions of subject-matter and personal jurisdiction are reviewed de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002); Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001); Wick v. Wick, 670 N.W.2d 599, 603 (Minn. App. 2003).

We conclude that there is no merit to appellant‟s claim that the district court lacked personal jurisdiction. The district court had and properly exercised personal jurisdiction over appellant.

Personal jurisdiction has two elements: First, there must be an adequate connection between the defendant and the state, known as a "basis" for the exercise of personal jurisdiction by the district court. Second, the plaintiff must invoke the jurisdiction of the district court using a "process" that is consistent with the requirements of due process and that satisfies those portions of the Minnesota Rules of Civil Procedure that govern the commencement of civil actions and the personal service of process.

Wick, 670 N.W.2d at 603 (quotations omitted). Clearly determinative of the issue of personal jurisdiction here is the fact that appellant herself initiated this suit against the 5

City of Maplewood and two city employees in the district court. By doing so she submitted herself to and invoked the jurisdiction of the court. She provides no support for her assertion that being "in propria persona, in summon jure" somehow purges the district court of personal jurisdiction over her. In fact, this court has previously held that the term "propria persona" is interchangeable with the term pro se. See Ledden v. State, 686 N.W.2d 873, 878 (Minn. App. 2004) ("Appellant may be „in propria persona‟ to himself, but he is „pro se‟ to us.").1 Personal jurisdiction over appellant was properly established when she filed suit in a Minnesota district court.

1 District courts have jurisdiction over pro se parties. See generally Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001) ("Although some accommodations may be made for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally held to the same standards as attorneys and must comply with court rules."). Furthermore, although generally reluctant to sanction pro se parties with costs and disbursements, courts have the discretion to do so when a party‟s conduct warrants it. Liedtke v. Fillenworth, 372 N.W.2d 50, 52 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985).

The district court also had subject-matter jurisdiction of this dispute. "Subject-matter jurisdiction is defined as not only authority to hear and determine a particular class of actions, but authority to hear and determine the particular questions the court assumes to decide." Irwin v. Goodno, 686 N.W.2d 878, 880 (Minn. App. 2004) (quotations omitted). Minnesota "[d]istrict courts are courts of general jurisdiction and have the power to hear all types of civil cases, with a few exceptions." Id. Minnesota law provides district courts the authority to consider MGDPA cases. Minn. Stat. § 13.08 (2006). Furthermore, Minnesota Rule of Civil Procedure 11 gives district courts the authority to impose sanctions on parties for conducting frivolous litigation. Therefore, 6

the district court had subject-matter jurisdiction to hear this case, to grant summary judgment, and to impose sanctions on appellant.

Lastly, respondent Kantrud argues in his brief that he is entitled to reasonable attorney fees because he was forced to respond to what he deems a frivolous appeal. He offers to submit a separate motion and attorney affidavit itemizing costs and fees if his request is granted. We note that "[a] party seeking attorneys‟ fees on appeal shall submit such a request by motion under rule 127." Minn. R. Civ. App. P. 139.06, subd. 1. A request in the brief is not sufficient. Andrew L. Youngquist, Inc. v. Cincinnati Ins. Co., 625 N.W.2d 178, 188 (Minn. App. 2001); Crockarell v. Crockarell, 631 N.W.2d 829, 837 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001). Nor do we find this to be an appropriate case for the court to "grant on its own motion an award of reasonable attorneys‟ fees." Minn. R. Civ. P. 139.06, subd. 1. Respondent Kantrud‟s request is denied at this time.

Affirmed.