Isaacson v. City St. Paul-Demolition

This opinion will be unpublished and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

A06-1219

Naomi Isaacson,
Relator,

Laureen Marie Ballinger,
Relator,

vs.

City of St. Paul,
Respondent,

St. Paul City Council,
Respondent.

Filed August 7, 2007

Affirmed; motion granted

Minge, Judge

City of St. Paul

File No. 06-439

Rebekah M. Nett, Westview Law Center, P.L.C., 1350 South Frontage Road, Hastings, MN 55033;

Brendan Tupa, Entrepreneurs & Free Markets, PLC, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415; and

Thomas A. Thistle, 976 14th Avenue Southwest, Rochester, MN 55902 (for relators)

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

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

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

MINGE, Judge

By writ of certiorari, relators challenge action by respondent city authorizing demolition of their building. Relators argue that the city’s decision was arbitrary and capricious, that the city failed to follow its own procedures, and that changed circumstances make demolition of the building improper. Respondent moves to strike portions of relators’ brief as outside the record. We affirm and grant respondent’s motion.

FACTS

Relators Naomi Isaacson and Laureen Ballinger purchased the property at 1956 Feronia Avenue in St. Paul in September 2002,[1] allegedly without knowledge that the city of St. Paul, respondent, had revoked the building’s certificate of occupancy and classified it as a vacant building. Because the building attracted drug dealers and vagrants, the city had been monitoring the building since 1999. From 1999 to 2003, the city issued numerous summary-abatement notices for various problems with the building.

In June 2003, the city conducted an inspection of the property. Following the inspection, the city served relators with an order informing them that their building was a nuisance and that they were required to repair or demolish the building by July 25, 2003. But after a hearing conducted by the city’s legislative hearing officer and a subsequent hearing before the St. Paul City Council, on September 3, 2003, the council granted relators 180 days to repair the building. Before commencing repairs, relators were required to post a $2,000 performance bond, present a plan, and obtain a permit. At the hearings, relator stated that she intended to rehabilitate the building and that she was working to secure the requisite permits. Relator was informed that if she completed 50% of the rehabilitation project, she could reapply for a 180-day extension.

After 180 days, relators had not corrected the property’s nuisance conditions and had made little rehabilitation progress. A second legislative hearing and city council hearing were held in April 2004. Relator blamed the delays on the city, arguing that it was slow to respond to the rehabilitation plans that had been submitted for approval in August 2003. But according to the city, it was unable to issue the requisite permits because relator did not supply it with adequate information regarding the rehabilitation project. The record also indicates that during the first 180-day period, the city issued several summary-abatement orders because of relators’ consistent failure to properly maintain the property.

Based on the record of the hearings and the evidence offered at the April 2004 council hearing, the city council authorized demolition of relators’ building if relators failed to repair or remove the nuisance conditions within 30 days. The matter languished, no demolition occurred, and in December 2004, the city council stayed its prior demolition order and granted relators 180 additional days to complete rehabilitation of the property. As a condition of that extension, the city required relators to file complete rehabilitation plans, demonstrate their capacity to finance the project, and post a $25,000 performance bond. The bond requirement was later reduced to $2,000.

Following the expiration of the second 180-day extension, relators had still made little progress toward rehabilitation. A city inspector estimated that as of August 2005, relators had only completed five percent of the project. This minimal progress notwithstanding, the city council authorized a 90-day extension in July 2005 and an additional 60 days in September 2005.

In March 2006, another legislative hearing was held. At that hearing, the city offered evidence of the minimal progress towards rehabilitation and neighbors’ dissatisfaction with the condition of the building. Relator offered evidence to show that progress had been made and that rehabilitation was still feasible. Following this hearing, the city’s hearing officer prepared a thorough report summarizing the history of the property, describing the evidence presented at the most recent legislative hearing, and recommending that the city proceed with demolition.

A city council hearing was held on April 19, 2006. On May 3, 2006, the city council decided to “formally vacate the stay on the orders to remove or repair . . . and re-instate[d] the orders to remove or repair . . . [and authorized] the Administration to proceed with demolition [in] 30 day[s].” This certiorari appeal follows.

D E C I S I O N

A municipality’s decision to demolish a building is quasi-judicial. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn. App. 2000). A writ of certiorari is the procedure for securing appellate review of such municipal actions. Larson v. New Richland Care Ctr., 538 N.W.2d 915, 918 (Minn. App. 1995), review granted (Minn. Dec. 20, 1995) and order granting review vacated (Minn. Mar. 4, 1997). Our review on certiorari is limited to “questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.” Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted).

I.

The first issue is whether the city council’s May 3, 2006 decision authorizing demolition was arbitrary and capricious. A decision is arbitrary and capricious only if the decision-making body: (1) relied on factors not intended by the ordinance; (2) entirely failed to take into account an important aspect of the issue; (3) justified its decision in a way that conflicts with the evidence; or (4) made an implausible decision that cannot be explained as a difference in view or the result of the city’s expertise. Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 484 (Minn. App. 2002). The bases for relators’ arbitrary-and-capricious challenge are not clearly formulated. While relators present their arbitrary-and-capricious challenge under multiple theories, their challenge is best understood if simplified into two distinct arguments: first, that the city’s decision was based on insubstantial and misconstrued evidence, and second, that the city failed to consider important facts.

A. Inadequate Evidence

First, relators argue that the city’s decision was arbitrary and capricious because the city has legal authority to order destruction of a building only when the property owner fails to rehabilitate the nuisance property, and, according to relators, they sufficiently rehabilitated the building such that the city was not permitted to demolish the building. Elsewhere, relators argue that the city “misconstrue[d] . . . the evidence” it relied upon in its decision.

Here, in its final decision ordering relators to repair or remove the nuisance, the city council relied on: (1) the report of the hearing officer, who heard substantial testimony regarding the progress of the rehabilitation project at an informal hearing; (2) the hearing minutes documenting the evidence presented; (3) photographs of the building; (4) the testimony of the owner who attempted to explain the history of rehabilitation challenges; and (5) the testimony of neighbors.

This evidence indicates that despite at least four separate decisions granting relators two 180-day extensions, a 90-day extension, and a 60-day extension, relators completed little more than five percent of the rehabilitation. The city began the formal process of requiring repair and abatement of nuisances or removal of the building in June 2003. As of March 2006, 33 months later, most framing, plumbing, heating, insulation, and a multitude of other rehabilitation tasks were uncompleted. The photographs of the building showed little exterior improvement. Moreover, there was evidence that relators were slow to obtain permits, were consistently behind schedule, had recurring financing problems, and were unwilling to commit to a schedule. Neighbors who were initially supportive became frustrated with relators’ minimal progress and the poor condition of the building. For the first two years of the effort, elected city officials were optimistic that relators would successfully rehabilitate the building, stated a willingness to work with relators, and approved extraordinary extensions of time.

Finally, the city’s hearing officer, who had been extensively involved in the hearings beginning in 2003, and who had recommended several extensions in the past, recommended that the city issue a repair-or-remove order. In making her recommendation, the hearing officer noted that she was skeptical whether relators had the financial capacity to complete the project and concerned that relators’ contractor was not competent to complete the project on schedule. There is ample evidence supporting the city council’s determination that relators did not rehabilitate their property on a timely basis. The record does not support relators’ assertion that the council misconstrued this evidence.

B. Consideration of Relevant Factors

Relators also argue that the city council’s decision was arbitrary and capricious because the council “fail[ed] to consider several important factors,” including construction delays, the contractor’s other commitments, and the city’s own contribution to the delays. The record indicates that relators told the hearing officer and the city council that the lack of progress was due to problems beyond their control. The explanations offered by relators for the construction delays may have been part of the reason that the council extended the rehabilitation timeline on several occasions. Relators’ claim that the city failed to consider legitimate construction delays is inconsistent with the multiple extensions they received over a period of almost three years.

Relators appear to argue that the city was obligated to grant their requests for further extensions. But relators cite no legal basis for the proposition that the city is required to take extraordinary steps to facilitate rehabilitation of this building or grant extension after extension. The arbitrary-and-capricious standard of review only requires that the city have a rational basis for its decision; the standard does not guarantee relators a favorable outcome. Ultimately, relators were responsible for complying with the city deadlines and anticipating set-backs. There is evidence in the record that relators did not hire a contractor capable of promptly completing the project.

Relators also assert that the city ignored its own contribution to the delays in rehabilitation. They claim that city officials delayed issuing required permits and that the council imposed an illegal $25,000 bond requirement. See St. Paul, Minn., Legislative Code § 33.03(f) (2007). The city agrees that the bond was set too high. The record does not indicate when the error was noticed. And at oral argument, the parties were unable to clarify the circumstances surrounding the bond reduction. Without an adequate record, we are unable to determine whether relators were materially prejudiced by this excessive-bonding requirement. Relators also provided no specific evidence of the setback in rehabilitation attributable to the city’s delay in issuing relators’ permits. There is ample evidence in the record that notwithstanding relators’ consistent failure to make progress toward rehabilitation of the building, the city was patient with relators over a period of almost three years. Based on the record, we conclude that the city’s decision was not arbitrary and capricious.

II.

The next issue is whether the city failed to comply with its own procedures. First, relators contend that the city failed to follow its own ordinance by failing to grant them “a reasonable time period for completion of the required work.” Relators argue that they are entitled to a minimum of two years in which to rehabilitate the building and obtain a certificate of occupancy.

Relators cite Saint Paul Legislative Code § 33.03(f)(2) (“SPLC”) as a basis for their claim of an extended time. SPLC § 33.03(f)(2) describes the time period provided to building owners seeking to regain a certificate of occupancy after the city conducts its initial code-compliance inspection:

Except as otherwise specified . . ., a certificate of compliance . . . or a certificate of occupancy . . . must be obtained within six (6) months from the date of the original certificate of compliance . . . . One (1) six-month time extension beyond the initial six-month time limitation may be requested by the owner and will be considered by the building official if it can be shown that the code compliance work is proceeding expeditiously and is more than fifty (50) percent complete or if unforeseen conditions have had significant schedule impact on the completion of work.

The provisions for completion of rehabilitation within six (6) months and the six-month extension apply only to property not presently subject to any orders issued to the property pursuant to chapter 43 or 45 of the [SPLC] . . . .

(emphasis added).

SPLC § 33.03(f)(2), read in its entirety, does not support relators’ two-year claim. Relators’ property was classified as a category-III vacant building under SPLC chapter 45 as early as 2003. Because relators’ building was a nuisance building, under the plain language of the ordinance, relators were not, as a matter of right, even entitled to the initial six-month period or to the discretionary six-month extension. There is no colorable basis for relators’ assertion that they were legally entitled to two years to rehabilitate their building. Regardless, we note that relators had two years and nine months from the time their building was first cited and when repair or removal was ordered to the final city council demolition decision.

Relators also assert that the city failed to follow its procedures by neglecting to post notice that the building was a nuisance property before relators’ purchase of the property in 2002. But there is no evidence in the record in support of this claim, and relators have not shown how the city’s alleged failure to properly post notice in 2002 or earlier is relevant to our consideration of the 2006 city decision under review.

In sum, we conclude that relators have not established that the city failed to follow its own procedures.

III.

Two parallel issues remain. They both concern the record on appeal, and they both deal with claimed developments after the city’s action on May 3, 2006, authorizing demolition.

A. Motion to Strike

First, we consider the city’s motion to strike certain parts of relators’ appendix. “The papers filed in the trial court or agency, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App. P. 110.01; see Minn. R. Civ. App. P. 115.04, subd. 1 (providing that rule 110 applies to certiorari proceedings as far as possible). On appeal, this court may not base its decision on evidence outside the record. Rostamkhani, 645 N.W.2d at 483. “The court will strike documents included in a party’s brief that are not part of the appellate record.” Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). But we recognize that

[i]f anything material to either party is omitted from the record by error or accident or is misstated in it, . . . the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be approved and transmitted.

Minn. R. Civ. App. P. 110.05. The party seeking to supplement the record must show that the omitted supplementary material was properly before the decision-maker when it made the decision appealed from. Stephens v. Bd. of Regents, 614 N.W.2d 764, 769-70 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

After relators filed their brief, the city moved to strike pages 6 to 39 of relators’ appendix. These parts of the appendix consist of e-mail reports and photographs which relators claim document their progress toward rehabilitating their building. Relators did not file a motion to supplement the record under rule 110.05. And in any event, all of the challenged material is dated after relators filed a writ of certiorari on June 30, 2006. Obviously the material was not, and could not have been, before the city council when it made its May 3, 2006 decision. Relators object to the motion and claim that the documents are necessary for fair consideration of their claim that there has been a change in circumstances. But relators fail to recognize that this appellate court reviews decisions made by the city. We do not compile a record and make initial decisions. Because the challenged portion of relators’ appendix was not part of the record and arose out of activity occurring after the city’s demolition decision, we grant the city’s motion to strike.

B. Changed Circumstances

Finally, relators argue that city is without the authority to demolish their building because they claim that they have recently made substantial progress toward rehabilitation. Although any record supporting this claim is effectively eliminated by our granting the motion to strike, we will address relators’ argument that this court’s decision in City of Barnum v. Sabri, 657 N.W.2d 201 (Minn. App. 2003), is a credible basis for relief.

To properly consider relators’ claim of similarity between their situation and the Sabri case, recognition of the complex history of the Sabri decision is important. In Sabri, the city determined that Sabri’s building was hazardous and ordered Sabri to repair the building within 60 days. More than two years later, the city filed an action in district court for enforcement of its repair order. 657 N.W.2d at 203. The district court entered judgment authorizing the city to raze the building, and thereafter the city authorized demolition. Id. More than a year after the district court’s order, Sabri moved to vacate the demolition orders and judgments and sought a temporary injunction. Id. The city then agreed to reconsider the demolition decision, and the district court denied the temporary injunction as moot. Id. at 203-04. In its reconsideration, the city determined that the building was still a safety hazard and decided to raze the building. Id. at 204. Sabri then went back to the district court seeking relief from the district court’s original demolition order pursuant to Minn. R. Civ. P. 60.02(e) and (f). Id. Sabri sought to introduce new evidence incident to his Rule 60.02(e) motion. Id. This court held that the district court erred in concluding that it lacked authority under rule 60.02(e) to consider post-judgment requests for relief based on changed circumstances. Id. at 206.

Here, in contrast to Sabri, the city of St. Paul is not required to obtain any district court order to proceed with demolition, and the city did not do so. As a result, we are not asked to review a district court ruling on a rule 60.02(e) motion or the refusal by the city to reconsider. Rather, our task is confined to reviewing the city’s final decision ordering relators to repair or remove their nuisance building. Here, the City of St. Paul made the type of decisions that the district court made in Sabri. To be parallel to Sabri, relators would have had to request that the city reconsider and accept additional evidence as a part of that reconsideration. Then, if the city refused the request, relators could appeal asking that we review that decision by the city. Minn. R. Civ. P. 60.02(e) does not authorize the court of appeals to supplement the appellate record. Unlike the district court, the court of appeals does not receive evidence and establish a record. Sabri is not helpful.

Because we have struck extra record documents, because relators base their argument on those stricken documents, and because relators are not appealing a denial of relief by the district court, we reject relators’ Sabri-based claim.

Affirmed; motion granted.

Dated:

[1] The record indicates that both Naomi Isaacson and Laureen Ballinger own the building located at 1956 Feronia Avenue, but the record also indicates that the city council dealt almost exclusively with Isaacson throughout the city hearing process. For ease of reference, when this opinion uses the singular “relator,” it refers to Isaacson.

Nancy Lazaryan Quiet Titles-Estate

In a message dated 8/10/2007 1:59:28 P.M. Central Daylight Time, Sharon4Anderson writes:

FindLaw> State Resources> Minnesota> Primary Materials> Minnesota Court Opinions This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004). STATE OF MINNESOTA IN COURT OF APPEALS A05-2409 Evelyn C. Wallace, Appellant, vs. Ramsey County District Court, Probate Division, Respondent, Ronald Riach, Personal Representative of the Estate of James Kayser, Respondent. Filed August 15, 2006 Affirmed Hudson, Judge Hennepin County District Court File No. C2-05-6546 Evelyn C. Wallace, 9613 Glenside Court, Sun Lakes, Arizona 85248 (pro se appellant) Mike Hatch, Attorney General, John S. Garry, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2128 (for respondent Ramsey County) Ronald J. Riach, Franke & Riach, P.A., 1000 West County Road E, Suite 200, Shoreview, Minnesota 55126 (attorney pro se) Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Dietzen, Judge. U N P U B L I S H E D O P I N I O N HUDSON, Judge In this pro se action against respondent Ramsey County district court and respondent Ronald Riach, the special administrator of the estate of James Kayser, appellant Evelyn Wallace is seeking injunctive relief and damages based on her claim that she owns the decedent’s homestead. Because the district court correctly concluded that the doctrine of collateral estoppel barred Wallace’s action, we affirm. FACTS In April 1978, the marriage of James H. Kayser and appellant Wallace was dissolved by a judgment and decree. In October 1978 a quit-claim deed was executed in favor of James H. Kayser to the homestead—an approximately 12.5-acre property located in Maplewood, Minnesota. In July 1986, decedent recorded an amended judgment and decree that was dated October 6, 1978. The amended decree awarded the homestead to the decedent, divesting Wallace’s interest in the homestead and conveying it to decedent. The quit-claim deed was recorded in 1999. On June 3, 2003 James H. Kayser died testate. Decedent’s will left all of the residue of his estate to his current spouse, Jesusa Kayser, and their two minor children. The will expressly disinherited all other parties not specifically named in the will. On June 13, Ronald Riach, decedent’s longtime attorney, filed an application for informal probate of the will and appointment of personal representative of the Kayser estate. William Kayser and Nancy Johnson Lazaryan, two of the adult children of decedent and Wallace, contested the will, alleging that decedent lacked testamentary capacity. In June 2004, acting on behalf of Wallace, William Kayser filed an affidavit of survivorship with the Ramsey County Recorders Office, claiming that Wallace was the surviving joint tenant of the homestead property. Sometime before June 16, Wallace and her agents, without the permission of the special administrator, changed the locks on the homestead, posted no-trespassing signs, and took possession of the homestead property. On June 18, Riach, as the special administrator of the estate, requested a temporary restraining order (TRO) prohibiting Wallace, her two children, or their agents from entering the property. The judge hearing the probate matter granted the request and issued the TRO. Within a day or two after the issuance of the TRO, appellants or their agents returned to decedent’s property and again changed the locks. Based primarily on its determination that the homestead was owned solely by decedent at the time of his death, on June 28, the Ramsey County district court issued a temporary injunction against Wallace, her two children, or their agents. At the probate trial in August 2004, the Ramsey County district court considered the issue of testamentary capacity and the special administrator’s request for a permanent injunction. In its September 9, 2004 order, the district court concluded that decedent possessed testamentary capacity and that: (a) at the time of his death, decedent’s homestead was owned in fee simple by the decedent and was a probate asset, rightfully under the control of the special administrator; and (b) Wallace had no right, title, or interest in the homestead property. In March 2005, the Ramsey County district court authorized the special administrator to sell the homestead for $1,150,000. In July, Wallace filed a separate action against the special administrator and the Ramsey County district court and sought a temporary injunction to prohibit destruction of the homestead. Because the Ramsey County district court was named as a defendant, the case was transferred to the Hennepin County district court. By order dated July 15, 2005, Wallace’s motion for an injunction was denied. The district court based its decision on the collateral-estoppel effect of the determination in the underlying probate case that Wallace had no ownership interest in decedent’s property. Citing Dahlberg, the district court concluded that Wallace had little likelihood of success on the merits. See Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 275, 137 N.W.2d 314, 321 (1965) (providing a five-factor test, one of which is to consider “[t]he likelihood that one party or the other will prevail on the merits when the fact situation is viewed in light of established precedents fixing the limits of equitable relief”). In August 2005, Riach filed a motion to dismiss and for rule 11 sanctions regarding this separate action. The Hennepin County district court granted the motion to dismiss, concluding that Wallace’s claims were barred by collateral estoppel and that the Ramsey County district court was not properly included as a defendant in the action. In addition, the order granted sanctions as follows: Plaintiff Evelyn Wallace is prohibited from filing any new court actions related to the estate of [James] Kayser and/or the property located [in] Maplewood, Minnesota unless and until she pays all of the costs imposed in this action and posts a $2,000 cost bond with the court in which she brings the action. This appeal follows. D E C I S I O N Appellant Wallace raises numerous issues challenging the validity of the Hennepin County district court’s dismissal of her “quiet-title” action. name="_ftnref1" title="">[1] The vast majority of issues raised by Wallace directly relate to decisions made by the probate division of the Ramsey County district court. In the probate action, the court heard testimony on the issue of ownership of the decedent’s property and specifically found that Wallace did not have an interest in the homestead property. Appellant argues that the Hennepin County district court erred by determining that her right, title, and interest in real property was properly adjudicated in the Ramsey County district court’s probate hearing on her request for injunctive relief. Because appellant’s challenge is an improper collateral attack on the decision of another court in a separate suit, the issue is not whether her ownership interest in decedent’s estate was properly adjudicated, but whether it was finally adjudicated. The probate issues were adjudicated, that decision was affirmed on appeal to this court, and review was denied. Estate of Kayser, No. A04-1910 (Minn. App. June 28, 2005), review denied (Minn. Aug. 24, 2005). In the interest of finality, this court will not reexamine the findings and conclusions of law in that prior action. The three issues that remain are (1) whether the doctrine of collateral estoppel was available to the district court; (2) whether the Ramsey County district court was properly dismissed from the action; and (3) whether the sanctioning of appellant was appropriate. I Appellant challenges the availability of collateral estoppel as a method of dismissing her action. Collateral estoppel is a legal doctrine that bars the relitigation of issues that are both identical with issues already litigated by the parties in a prior action and essential to the resulting judgment. Heine v. Simon, 674 N.W.2d 411, 421 (Minn. App. 2004). The availability of collateral estoppel is a mixed question of law and fact subject to de novo review. Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996). Collateral estoppel is available when: “(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.” Heine, 674 N.W.2d at 421. One of the essential issues in the probate action was Wallace’s ownership right in the property. After hearing testimony, the probate court determined that Wallace did not have an ownership interest in the property. An essential issue in Wallace’s current action is whether Wallace has an ownership interest in the property. Because Wallace’s ownership interest in the property was one of the principal issues in the prior probate adjudication, the first factor is satisfied. The order of the probate court was appealed to and affirmed by this court. Estate of Kayser, No. A04-1910 (Minn. App. June 28, 2005), review denied (Minn. Aug. 24, 2005). Because there was a final judgment on the merits, the second factor is satisfied. Appellant argues that she was not a party to nor in privity with parties in the underlying suit that determined she had no legal interest in the homestead property. The Hennepin County district court specifically found that Wallace “was either party to the TRO and permanent injunction portion of the probate proceeding or that she was in privity with William Kayser and Nancy Lazaryan.” This court will not set aside a district court’s findings of fact unless the findings are clearly erroneous. Minn. R. Civ. P. 52.01. In addition, due regard is given to the opportunity of the district court to judge the credibility of the witnesses. Id. The record indicates that Wallace was specifically named in both the TRO and the injunction actions. Wallace is the mother of both William Kayser and Lazaryan, and all three have brought actions against the estate of decedent, decedent’s personal representative, the probate court, and the district court judge in this probate matter. William Kayser filed a notice of lis pendens with the Ramsey County recorder on behalf of his mother, claiming that she was the fee owner of decedent’s homestead. In the most recent action, Nancy Lazaryan listed herself on the notice of lis pendens as “attorney in fact for Evelyn C. Wallace.” Although not listed as an appellant, this court’s unpublished decision affirming the permanent injunction refers to Wallace by name nine times. See Estate of Kayser, No. A04-1910 (Minn. App. June 28, 2005), review denied (Minn. Aug. 24, 2005). There is sufficient support in the record for the district court’s findings that Wallace and her children were claiming the same legal rights with respect to Wallace’s alleged ownership interest in decedent’s property and were working in privity with each other. Accordingly, the district court’s findings are not clearly erroneous, and the third factor is satisfied. Wallace argues that she did not have a full and fair opportunity to be heard on the ownership issue. The district court in Hennepin County specifically found that Wallace “had a full and fair opportunity to be heard on the ownership issue or that those in privity with [her] (i.e., Ms. Lazaryan and Mr. Kayser) had a full and fair opportunity to be heard on the ownership issue.” Again, this court will not overturn the findings of the district court unless they are clearly erroneous. Minn. R. Civ. P. 52.01. The record indicates that both William Kayser and Lazaryan attended the temporary injunction hearing on June 25, 2004. The record further indicates that both were present for at least portions of the probate/permanent injunction trial and chose not to be represented. Lazaryan was allowed to read a short statement at the beginning of the trial, but neither Lazaryan nor William Kayser called any witnesses to support their claims. Further, Lazaryan and William Kayser were again present, pro se, for two days of hearings on the proposed sale of the property. There is ample support in the record for the district court’s findings that Wallace had a full and fair opportunity to be heard on the ownership issue by appearing at these hearings or appearing through those in privity with her. The district court did not clearly err in its findings that the fourth factor of collateral estoppel was satisfied. Because all four factors were satisfied, the doctrine of collateral estoppel was available to the Hennepin County district court on the issue of Wallace’s ownership interest. “Once it is determined that collateral estoppel is available, the decision to apply the doctrine is left to the trial court’s discretion.” In re Trusts Created by Hormel, 504 N.W.2d 505, 509 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Because appellant has not argued that the application of the doctrine was an abuse of discretion, we do not consider this matter. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived). Thus, we conclude that the district court did not err in finding that collateral estoppel was available and that the district court properly exercised its discretion by applying it to dismiss appellant’s cause of action. II Appellant argues that Ramsey County district court was improperly dismissed from this action. Because appellant’s cause of action was properly dismissed due to a failure to meet an essential requirement—namely, plaintiff’s ownership interest in the property—all parties were properly dismissed, and we do not reach this issue. III Appellant argues that because the issue of ownership was not “properly adjudicated” in the probate action, the district court had no basis for awarding sanctions for bringing a frivolous and unsupported lawsuit. Generally, courts are reluctant to sanction a pro se party with costs and disbursements, but 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). On review, this court will not reverse a district court’s sanctions under rule 11 or Minn. Stat. § 549.211 absent an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990); Leonard v. Nw. Airlines, 605 N.W.2d 425, 432 (Minn. App. 2000). “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.” Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001). Rule 11 of the Minnesota Rules of Civil Procedure provides, in pertinent part, as follows: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (a) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[.] . . . . If, after notice and a reasonable opportunity to respond, the court determines that [the rule] has been violated, the court may . . . impose an appropriate sanction upon the [persons] responsible for the violation. Minn. R. Civ. P. 11.02–.03 (2006); see also Minn. Stat. § 549.211, subds. 2, 3, 5 (2004) (giving the court authority to sanction parties but limiting the sanctions imposed to “what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated”). Here, the district court sanctioned appellant because the issue of ownership of the property had been finally decided and this action was frivolous and unwarranted. The district court found that appellant was “acting in concert with her children in the multiple lawsuits involving the estate and the [p]roperty” as a way to harass and cause a needless increase in litigation costs. The district court then fashioned sanctions that it believed would be the least restrictive to deter appellant’s conduct. The sanctions imposed required payment of costs and disbursements incurred by respondent, plus requiring appellant to post a $2,000 cost bond before filing any future action in Minnesota concerning the same property and/or the estate of the decedent. The sanctions imposed appear reasonably calculated to deter similar future conduct by appellant or her children, and we conclude that the district court did not abuse its discretion. Affirmed. [1] Although appellant characterizes her action as a quiet-title action, it is in actuality an action to determine adverse claims to property. See 6A Steven J. Kirsch, Minnesota Practice §§ 54.11 – .22 (1990).

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-28

Nancy C. Lazaryan,

Appellant,

Evelyn C. Wallace,

Plaintiff,

vs.

Judge Marrinan of the Ramsey County District Court

in her Capacity Personally,

Respondent,

Ronald Riach,

Respondent.

Filed September 6, 2005

Affirmed

Parker, Judge *

Ramsey County District Court

File No. C6-04-6622

Nancy C. Lazaryan, 10734 West Lake Road, Rice, MN 56367 (pro se appellant)

Mike Hatch, Attorney General, John S. Garry, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent Judge Marrinan)

Richard J. Thomas, Bryon G. Ascheman, Burke & Thomas, PLLP, 3900 Northwoods Drive, Suite 200, St. Paul, MN 55112 (for respondent Ronald Riach)

Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.

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

PARKER, Judge

Appellant Nancy C. Lazaryan raised numerous objections to probate proceedings concerning her father’s estate before respondent Judge Margaret Marrinan. Following several adverse rulings, appellant brought suit against Marrinan personally and the estate’s special administrator, respondent Ronald Riach, alleging, respectively, violation of various constitutional rights and fraud. Respondent now appeals from the district court’s dismissal of that suit for failure to state a claim as to both respondents. We affirm.

D E C I S I O N

When reviewing a dismissal for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e), we consider de novo whether the complaint sets forth a legally sufficient claim for relief. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003). We consider only the facts alleged in the complaint, accepting those facts as true and construing all reasonable inferences in favor of the nonmoving parties. Id.

1. Appellant argues that the district court erred by dismissing her claims against respondent Judge Marrinan as barred by judicial immunity. The applicability of an immunity defense is a question of law. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Judicial immunity provides that a judge cannot be held liable to anyone in a civil action for “acts done in the exercise of judicial authority.” Linder v. Foster, 209 Minn. 43, 45, 295 N.W. 299, 300 (1940) (quotation omitted).

Appellant’s allegations against respondent Judge Marrinan are exclusively concerned with actions taken in the exercise of the judiciary’s statutory authority to administer the estate. See Minn. Stat. § 524.1-302(a) (2004) (providing a district court hearing a probate matter “has full power to make orders, judgments and decrees and take all other action necessary and proper to administer justice in the matters which come before it”). Those actions are protected by judicial immunity. Appellant’s contention that her challenge to the constitutionality of the doctrine of judicial immunity must be decided by a jury has no legal support and is without merit.

2. Appellant argues that the district court erred by dismissing her claim that Riach made fraudulent statements to the court. The district court concluded that the statements had legal support and that Riach believed them to be true. See Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn. 1986) (holding that elements of fraud include a false statement concerning a past or existing material fact susceptible of knowledge and knowledge of the falsity of the statement or uncertainty as to its truth).

Appellant argues that the district court was bound to accept as true, for the purposes of the motion to dismiss, her assertions concerning the joint-tenancy ownership she claims her father and mother exercised over certain disputed testamentary property. The existence of a joint tenancy is a legal question not entitled to a presumption of truth in the context of a motion to dismiss. See Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944 (1986) (observing that in considering a motion to dismiss, the court will consider “all the factual allegations in the complaint as true, [but is] not bound to accept as true a legal conclusion couched as a factual allegation”).

As to appellant’s argument alleging that her mother, defendant Wallace, was a victim of Riach’s fraud, we observe that a special term panel of this court denied a motion filed by Lazaryan and Wallace requesting that Wallace be made a party to this matter. The fraud claim concerning Wallace therefore fails for lack of standing. Appellant did not state a fraud claim upon which relief could be granted.

As to the claim that Riach violated appellant’s constitutional rights, because Riach is not a state actor, he is not susceptible to suit for depriving others of their constitutional rights. See Coller v. Guardian Angels Roman Catholic Church of Chaska, 294 N.W.2d 712, 716-17 (Minn. 1980) (holding that claims for constitutional deprivations only extend to state actions). Finally, appellant’s claim that Riach defamed her in his testimony is also without merit. “[P]articipants in judicial and legislative proceedings are entitled to an absolute privilege, a grant of total immunity for false and defamatory statements regardless of the nature or intent of the speaker.” Johnson v. Dirkswager, 315 N.W.2d 215, 220 (Minn. 1982).

Affirmed.