Suzanne Snaza v. City of St.Paul,MN no.08-1604

http://caselaw.lp.findlaw.com/data2/circs/8th/081604p.pdf

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-1604

___________

Suzanne Snaza, *

*

Plaintiff – Appellant * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

The City of Saint Paul, Minnesota, *

*

Defendant – Appellee. *

___________

Submitted: November 14, 2008

Filed: December 4, 2008

___________

Before MURPHY, HANSEN, and RILEY, Circuit Judges.

___________

MURPHY, Circuit Judge.

Suzanne Snaza commenced this action against the City of St. Paul alleging that

her constitutional rights to substantive due process, equal protection, and just

compensation were violated by denial of her application for a conditional use permit.

The district court1 granted the city's motion for summary judgment. Snaza appeals,

and we affirm.

-2-

In 1999 Snaza's father, Bernard, applied for a conditional use permit from the

city planning commission to operate an outdoor auto sales lot on a property at 1229

Payne Avenue in St. Paul, Minnesota. The property is zoned B3, a general business

district. Under the city code a particular use of property within any business district

will be either permitted, permitted only by obtaining a conditional use permit, or

prohibited. See St. Paul Code of Ordinances (Code) §§ 66.101, 66.421.

Outdoor auto sales, auto repair, or auto detailing activities are only permitted

on B3 property if the owner obtains a conditional use permit. Code § 66.421.

Approval of a conditional use permit application requires certain findings by the

planning commission, including that the property conforms to all applicable land use

regulations for the proposed use. § 61.501. The commission has discretion to modify

those requirements in circumstances which would "unreasonably limit or prevent

otherwise lawful use [of the property]...and would result in exceptional undue

hardship to the [property] owner. . .; provided, that such modification will not impair

the intent and purpose of such special condition and is consistent with health, morals

and general welfare of the community and is consistent with reasonable enjoyment of

the adjacent property." Code § 61.502.

The land use regulations for an outdoor auto sales lot require among other

things that the lot size be at least 15,000 square feet and that any driveway be set back

at least 60 feet from an intersection. Code § 65.706. Snaza's property does not meet

those requirements since it is only 9,460 square feet and one driveway is 20 feet from

an intersection. The planning commission had nevertheless approved Bernard's

application for a conditional use permit under § 61.502, after determining that denial

of the application would cause him an exceptional undue hardship since he was

recovering from a severe illness. In 2002 Bernard applied for a renewed permit which

was granted with the modification that "[a]t such time as there is a new owner

. . .of this business, a new permit shall be required." Bernard died in 2005, and his

daughter Suzanne became the owner of the property.

-3-

In June 2005 Snaza applied for a new permit to operate an auto detailing and

outdoor auto sales business on the premises under Code § 65.704 (auto specialty store

including detailing) and § 65.706 (outdoor auto sales). The city zoning committee

held a public hearing on her application, at which the community council for the

surrounding neighborhood characterized the property as a nuisance and opposed

approval of the permit. The zoning committee also heard complaints that there were

more cars on the lot than were allowed under the 2002 permit, that there was a tow

truck business operating illegally on the site, and that the back alley was littered with

glass from wrecked cars which were also protruding into the alley. The zoning

committee recommended that the planning commission deny the permit application.

The planning commission found that the property did not meet the 15,000

square foot minimum lot size requirements for an auto detailing or outdoor auto sales

lot under Code § 65.703(c) and § 65.706(d) or the 60 foot driveway setback

requirement in § 65.706(b). It concluded that these code requirements would have to

be modified in order to approve the permit application and decided not to exercise its

discretion under § 61.502 to make such a modification. According to the planning

commission, a strict application of the zoning regulations would not unreasonably

limit or prevent an otherwise lawful use of the property and would not result in an

exceptional undue hardship to Snaza. It also found that the modifications would not

be consistent with reasonable enjoyment of the adjacent property, would impair the

intent and purpose of the regulations, and would be inconsistent with the health,

morals, and general welfare of the community. Snaza appealed the planning

commission decision to the St. Paul City Council but withdrew her appeal prior to a

hearing because she had accepted a purchase agreement for the property. The council

noted the withdrawal of her appeal and upheld the decision of the planning

commission.

The purchase agreement dissolved, however, and in 2006 Snaza refiled her

permit application. She told the zoning committee that she had been unable to sell the

-4-

property because it was not permitted to be used as an outdoor auto sales lot and that

she could not afford to keep it and pay taxes on it. While she did not want to operate

a business on the property, she needed a permit for the benefit of any potential buyer.

The committee recommended denial of the permit after concluding that it did not have

enough information about what a prospective owner would want to do with the

property and that a new owner's application would have to be considered on its own

merits.

The planning commission followed the recommendation and denied the permit

since modifying the minimum lot size and driveway setback requirements would

frustrate the purpose of the code requirements (to ensure that auto sales activities

occur entirely on site to avoid creating problems for adjacent properties) and would

be inconsistent with the health, morals, and general welfare of the community. The

commission made no finding about whether the denial of the permit would cause

Snaza an exceptional undue hardship.

Snaza appealed to the city council, stating that there was no other reasonable

use for the property. Not having the permit was a financial hardship for her because

she was impeded from selling the lot to the prospective buyer who wanted to run the

business as a car lot. She submitted to the city council a tentative purchase agreement

and a letter from the potential purchaser indicating his desire and intent to operate the

business under the same conditions as the 2002 permit. The city council adopted the

findings of the planning commission and affirmed its denial of the permit.

Snaza brought this action in state court, alleging violation of her substantive due

process and equal protection rights, illegal taking, and inverse condemnation. The city

removed the action to federal court and filed for summary judgment. The district court

concluded that Snaza had not identified a protected property interest or improper

government action related to the denial of her permit application and that she was not

similarly situated to her father Bernard because of his severe illness. It granted

-5-

summary judgment on her substantive due process and equal protection claims. The

district court concluded that Snaza's takings claim was not ripe because she had not

sought and been denied just compensation in a state court inverse condemnation

action. The court concluded further that even if her takings claim were ripe, it would

fail because an application for a conditional use permit is not a private property

interest subject to constitutional takings provisions. Moreover, the city's denial of the

permit did not deprive Snaza of all economically beneficial use of the property

because it could be used for any number of other permitted activities under Code §

66.421, including a dry cleaner, nursery, office, restaurant, or indoor auto sales shop.

The district court then dismissed Snaza's takings claim without prejudice and her

remaining claims with prejudice. Snaza appeals. We review a grant of summary

judgment de novo, viewing the evidence in the light most favorable to the nonmoving

party. Koch v. Sw. Elec. Power Co., 2008 WL 4552957 (8th Cir. 2008).

Under both the constitutions of Minnesota and the United States private

property may not be taken without just compensation, U.S. Const. amend. V; Minn.

Const. art. I, § 13, and Snaza argues that the district court erred by not reaching her

takings claim. She argues that the controlling Supreme Court precedent, Williamson

County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985), is unworkable and doctrinally unsound. Under Williamson County, a property

owner may not bring a federal claim for violation of the Just Compensation Clause

until it has exhausted any available state procedure for seeking just compensation and

been denied it. 473 U.S. at 195; see also Kottschade v. City of Rochester, 319 F.3d

1038, 1040 (8th Cir. 2003). Minnesota has an adequate procedure in Minn. Stat. §

462.351 subd. 1 by which individuals may seek just compensation in its district courts.

Koscielski v. City of Minneapolis, 435 F.3d 898, 903 (8th Cir. 2006).

Although Snaza filed an inverse condemnation claim in state court, she had not

completed the required state process before the action was removed to federal court.

She claims that Williamson County should not control our analysis because federal

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dismissal of her takings claims and a subsequent adverse state court decision may

deny her a later federal forum on the constitutional question. We acknowledged these

concerns in Kottschade, but declined to reach any potential res judicata or collateral

estoppel claim arising from the exhaustion requirement in Williamson County. 319

F.3d at 1042. Williamson County is nevertheless still good law and controls here.

See id.

Snaza contends that even if Williamson County is controlling, its holding is

prudential rather than jurisdictional and so does not bar us from exercising discretion

to decide the takings question now. She cites cases from the Ninth Circuit holding

that interests of efficiency or justice may favor addressing a takings claim before state

remedies have been exhausted, but we have held that Williamson County is

jurisdictional. E.g., Koscielski, 435 F.3d at 903-04 (court lacked jurisdiction over

plaintiff's takings claim where just compensation in state court not denied); Public

Water Supply Dist. No. 8 of Clay County v. City of Kearney, 401 F.3d 930, 932 (8th

Cir. 2005). Accordingly, the district court did not err in concluding that it did not

have subject matter jurisdiction over Snaza's takings claim.

Snaza argues that because the city removed her complaint, including her inverse

condemnation claim, from state court to federal court, it has waived any ripeness

challenge. The same argument was made by the plaintiff in Koscielski and was

rejected as untenable because it "would require the Court to refuse to consider whether

it has subject matter jurisdiction over the case." 435 F.3d at 903. Although Snaza

brought an inverse condemnation claim in state court, her federal takings claim will

not be ripe unless and until she is denied just compensation on that state claim. The

district court did not err by concluding that Snaza's federal takings claim was not ripe

or by dismissing that claim without prejudice.

Snaza also argues that the district court erred in granting summary judgment on

her substantive due process claim because the city's claims of inadequate lot size and

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complaints about illegal uses of the property were pretextual and inadequate, and the

city offered no rational justification for refusing to grant the permit. She argues that

the inadequate lot size justification was irrational because the city had previously

granted a permit to use the same property as an outdoor auto sales business. The city

counters that her permit application was not a property interest to which due process

protection applies because her application did not meet all of the requirements for a

conditional use permit to be issued as a matter of right.

To prove a due process violation in a local land use decision the plaintiff must

identify a protected property interest to which the Fourteenth Amendment's due

process protection applies, Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068,

1070 (8th Cir. 1997), and then demonstrate that the government action complained of

is "truly irrational, that is something more than. . .arbitrary, capricious, or in violation

of state law," Koscielski, 435 F.3d at 902. A protected property interest is a matter of

state law involving "a legitimate claim to entitlement as opposed to a mere subjective

expectancy." Bituminous Materials, 126 F.3d at 1070 (quotations omitted). A permit

applicant may have a legitimate claim to entitlement if the government's discretion is

constrained by a regulation or ordinance requiring issuance of a permit when

prescribed terms and conditions have been met. See id.

In the district court Snaza argued that she had a protected property interest in

her application for a conditional use permit. Approval of a conditional use permit in

Minnesota generally follows as a matter of right only if the permit application meets

local requirements for issuance. See id.; Mendota Golf, LLP v. City of Mendota

Heights, 708 N.W.2d 162, 173 (Minn. 2006); Chanhassen Estates Residents Ass'n v.

City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984). Here, it is uncontroverted

that the property does not meet the minimum lot size and driveway setback

requirements in the zoning regulations, Code § 65.706. Accordingly, the district court

did not err in concluding that Snaza did not have a legitimate claim of entitlement to

a conditional use permit.

-8-

On appeal Snaza argues for the first time that her fee simple title in the land is

her protected property interest. At no point in the district court proceedings did Snaza

allege a violation of her substantive due process rights with regard to her fee simple

title in the land. Issues raised for the first time on appeal are generally not considered.

See Aaron v. Target Corp., 357 F.3d 768, 779 (8th Cir. 2004). Moreover, Snaza has

not presented any evidence that she has been denied her fee simple title in the land.

The only evidence presented shows that she was denied a permit to operate an outdoor

auto sales lot on the property. As the city points out, there are over 70 principal uses

for a property in a B3 zoning district that are allowed without obtaining a conditional

use permit. Code § 66.421.

Assuming that she had identified a protected property interest, Snaza argues that

the planning commission violated her right to substantive due process because it had

no rational basis upon which to deny her permit application. As the district court

pointed out, in order to prevail Snaza would have to demonstrate that the city's denial

of her permit application was "truly irrational, that is something more than. . .arbitrary,

capricious, or in violation of state law. . . . [It] must therefore be so egregious or

extraordinary as to shock the conscience." (citations omitted) Snaza argues that it

was legal error for the district court to use a "shock the conscience" test because that

standard is generally used only in official action cases such as those alleging police

abuse. The city counters that the test used by the district court was the same standard

used in Koscielski, 435 F.3d at 902, a zoning case. Snaza is correct that this "shock

the conscience" language has its genesis in official action cases and frequently is

omitted from the traditional "truly irrational" test employed in land use cases, see, e.g.,

Bituminous Materials, 126 F.3d at 1070, but we need not tarry over that difference in

this case because the city's denial was not irrational.

While Snaza argues that the planning commission decision to deny her permit

application was irrational because it had granted a permit to her father for the exact

same use of the property, we conclude that the district court did not err in concluding

that the commission's choice to refrain from exercising its discretion under Code §

61.502 to modify the standards was rational and not improper. Snaza also argues that

because the city knew she was planning to sell the property to new owners, it was not

rational to deny her application based on neighborhood opposition and complaints

about illegally storing vehicles, performing finishing work, and operating a towing

business on the lot. Snaza argues that the planning commission should have granted

her alternative request to issue the permit conditioned on sale to new owners. We

cannot say that the planning commission's denial of Snaza's application was truly

irrational, however, because the property did not conform to the zoning regulations

for an outdoor auto sales lot or an auto detailing business.

For these reasons, we affirm the judgment of the district court.

______________________________

MN v. Paul Spence A06-1541

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State of Minnesota, Respondent, vs. Paul P. Spence, Appellant. A06-1541, Court of Appeals .. When a homeowner has the lawful right to possess a home and no court order dispossesses him of that right, he may not be charged with burglary for entering the home and assaulting another co-owner. Affirmed in part, ... http://www.lawlibrary.state.mn.us/archive/ctappub/0712/ opa061541-1211.htm- 22.5KB

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STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1541

State of Minnesota, Respondent, vs. Paul P. Spence, Appellant. A06-1541, Court of Appeals Published, December 11, 2007

State of Minnesota,
Respondent,

vs.

Paul P. Spence,
Appellant.

Filed December 11, 2007

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

Jackson County District Court

File No. K7-05-1004

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

Robert C. O’Connor, Jackson County Courthouse, 405 Fourth Street, Suite 2D, Jackson, MN 56143 (for respondent)

John M. Stuart, State Public Defender, Benjamin Jon Butler, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.*

S Y L L A B U S

1. When a homeowner has the lawful right to possess a home and no court order dispossesses him of that right, he may not be charged with burglary for entering the home and assaulting another co-owner.

2. Evidence that a victim of a crime recognizes the voice of her assailant is sufficient to establish the identity of the assailant.

O P I N I O N

KLAPHAKE, Judge

Appellant was convicted of first-degree burglary and gross misdemeanor domestic assault for entering a home in which he was a co-owner to assault the other co-owner, with whom he had formerly cohabited. Appellant claims that he could not be charged with burglary because he was in lawful possession of the home at the time of the offense. He also claims that the identification evidence was insufficient to support the convictions. We reverse the burglary convictions, affirm the domestic assault conviction, and remand for resentencing.

FACTS

Appellant Paul Spence and A.S. began cohabiting in 1993. The couple had three children together, and their Lakefield household also included two of A.S.’s children from a prior relationship. They co-owned their home.

Appellant moved out of the home in 2004 when the couple split, but he continued to visit the children, provide for them financially, and make house mortgage payments. On April 26, 2004, the couple argued, and appellant grabbed A.S. by her chin and made a mark on her face. That day, A.S. got an order for protection against appellant, which she later withdrew.

Appellant moved into an apartment one block from the home. In early January 2005, the couple disputed whether A.S. should relinquish her interest in the home because she had been contributing less to the monthly mortgage payments and had made no contribution to the December 2004 mortgage payment. On January 13, 2005, appellant and A.S. had another argument, and A.S. and her daughter both testified that appellant told A.S. to “get out of the house.” A.S.’s daughter testified that appellant also said, “or else.”

In the early morning hours of January 14, A.S. heard a noise inside the home and when she went to investigate, she was grabbed by the hair from behind by an intruder. The intruder pushed her to the floor, abrading her cheek on the carpet, and according to A.S., said, “Don’t [f—k] with me.” A.S. testified that she recognized the intruder’s voice as appellant’s, stating, “[T]here was no doubt in my mind it was him.” She also testified that her 18-month-old son, who had come upon the scene, said, “[M]y daddy is naughty.”

Appellant was charged with two counts of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a), (c) (2004), and one count of gross misdemeanor domestic assault under Minn. Stat. § 609.2242, subd. 2 (2004). At trial, he testified that he was watching television in his apartment at the time of the offense. His version of the facts was corroborated by a neighbor who heard appellant come home from work at about 2:00 a.m. and who testified that he would have heard appellant leave after that, but he did not.

Appellant was convicted on all three counts. At sentencing, the district court denied appellant’s motion for a downward dispositional departure and imposed the 48-month presumptive sentence for first-degree burglary.

ISSUES

1. May appellant be charged with burglarizing a home that he co-owned and formerly resided in with the victim when no court order excluded him from lawful possession of the home?

2. Did the district court err in finding evidence of identity sufficient to support appellant’s convictions?

ANALYSIS

I.

“Construction of a criminal statute is a question of law subject to de novo review.” State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002). Courts apply strict construction to penal statutes, and such statutes “may not be interpreted to create criminal offenses that the legislature did not contemplate.” Id.

First-degree burglary is defined as entering an occupied dwelling without consent and with intent to commit a crime, or entering an occupied dwelling without consent and committing an assault while in the building. Minn. Stat. § 609.582, subd. 1(a), (c) (2004). “Enters a building without consent” is defined as “to enter a building without the consent of the person in lawful possession[.]” Minn. Stat. § 609.581, subd. 4(a) (2004).

In State v. Evenson, 554 N.W.2d 409, 411 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996), this court construed “lawful possession” to mean “actual holding or occupancy with or without rightful ownership” and held that a man who owned a home, but was excluded from residing in it by an order for protection, committed burglary by entering the home to assault his wife. Id. at 412. The Evenson court declined to narrowly define “lawful possession” solely with regard to legal ownership, but instead focused on “the distinct legal right to possess.” Id. Because an order for protection “deprived Evenson of ‘lawful possession[,]’” this court concluded that he did not have the legal right to possess the home and affirmed his burglary conviction. Id.

The question in this case is whether appellant’s tacit agreement with A.S. to vacate the home and other facts indicating that she was in sole possession of the home at the time of the offense, without more, are sufficient to show that appellant was not in lawful possession of the home at the time he entered it and assaulted A.S. No reported Minnesota case has addressed this issue. Minnesota courts recognize that people have a reasonable expectation of privacy in their homes, and for sentencing purposes “unauthorized entry into residential dwellings [is] viewed more seriously than entry into commercial or industrial buildings.” State v. Pierson, 368 N.W.2d 427, 436 (Minn. App. 1985).

But we decline to extend Evenson to a fact situation where the purported burglar is a homeowner who has the legal right to enter the home. The record evidence here shows that in addition to owning the home, appellant retained a key to the home, made visits there to pick up the children, and was not excluded from the property or habitation there by a valid court order. On these facts, the evidence demonstrates that he was not dispossessed of his lawful right to enter the home. See, e.g., People v. Gauze, 542 P.2d 1365, 1369 (Cal. 1975) (ruling that roommate could not be convicted of burglarizing his own apartment); State v. Altamirano, 803 P.2d 425, 429-30 (Ariz. Ct. App. 1990) (ruling that person could not be convicted of burglarizing his own home). We decline to extend the ruling in Evenson to allow appellant to be charged with burglary of a home in which he had the right of lawful possession, when no court order divested him of that right. We therefore vacate appellant’s burglary conviction and remand for resentencing on the domestic assault conviction.[1]

II.

Appellant next claims that A.S.’s testimony that she recognized his voice during her assault is insufficient to identify him as the person who assaulted her. An appellate court’s review of a claim of insufficiency of the evidence “extends no further than to make a painstaking review of the record to determine whether the evidence, direct and circumstantial, viewed most favorably to support a finding of guilt, is sufficient to permit the jury to reach that conclusion.” State v. Mems, 708 N.W.2d 526, 531-32 (Minn. 2006) (quotation omitted). The jury determines witness credibility and “the weight to be given a witness’s testimony,” and the jury may “accept part and reject part of a witness’s testimony.” Id. at 531. “Inconsistencies or conflicts between one witness and another do not necessarily constitute false testimony or serve as a basis for reversal.” Id.; see State v. Gomez, 721 N.W.2d 871, 883 (Minn. 2006) (“It is not the province of [the appellate] court to reconcile conflicting evidence”).

A victim’s identification of her assailant’s voice is “direct evidence sufficient to present a fact question for the jury.” State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972); see Sauber v. Northland Ins. Co., 251 Minn. 237, 243, 87 N.W.2d 591, 596 (1958) (allowing voice identification to establish the identity of a telephone caller). Like any other identification evidence, voice identification evidence is typically a matter of credibility properly left for the jury to decide. State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999). Here, A.S. identified with certainty that the voice of her assailant was appellant’s. This evidence was sufficient to permit the jury to find that appellant was A.S.’s assailant.

Appellant argues that because he had a strong alibi and because A.S.’s identification was uncorroborated and she was inconsistent in her testimony on other points, this court should find her identification testimony insufficient. As to appellant’s alibi, while he could account for himself after 2:00 a.m., the jury could have either disbelieved this testimony or believed that appellant entered A.S.’s home after he left work at 1:30 a.m. but before he went to his apartment. The assault took only a few minutes, according to A.S., and appellant lived only one block from the family home. Further, A.S.’s testimony was corroborated by the unobjected-to, out-of-court statement from her son, who observed the assault and said, “[M]y Daddy is naughty.”

Appellant further attempts to offer other reasons to discredit A.S., including her failure to remember an earlier burglary and alleged inconsistencies in her testimony, particularly her testimony about how the assault occurred. Viewed in the context of her whole testimony, any inaccuracies are minor and irrelevant to the issues of this case, and inconsistencies appear to be constructed by appellant by taking A.S.’s testimony out of context or time, rather than true inconsistencies. We conclude that the identification evidence was sufficient to support appellant’s domestic assault conviction.[2]

D E C I S I O N

We affirm appellant’s domestic assault conviction, reverse appellant’s burglary convictions, and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

---

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

[1] As noted by the Minnesota Supreme Court in State v. Colvin, 645 N.W.2d 449, 455 (Minn. 2002), domestic abuse is a “serious problem,” but part of its statutory scheme for “ratcheting up the penalties for repeat violations” is premised on victims obtaining orders for protection. To gain the protections against domestic abuse based on unauthorized entry, we encourage potential victims to obtain orders for protection.

[2] Appellant also challenges his sentence, claiming that the district court abused its discretion by declining to impose a downward dispositional departure and sentence him to treatment rather than an executed prison term. Because we vacated the burglary conviction on which this sentence was based, we decline to address this issue.

Jennifer Lund et al v. Michael J. Brouillette _A07-1203 Judge Blakely MN

I'm so sick of these Lawyer_Judges, techinally all published and unpublished opnions must be revisited today at www.mncourts.gov the Unpublished Opinion by Blakely is posted
http://sharon4judge.blogspot.com
http://www.mncourts.gov/opinions/coa/current/...

Misconduct? Judge referred people to a lawyer he owed money - TwinCities.com

Judge Timothy L. Blakely (mncourts.gov)

Judge Timothy Blakely said he was eager to see difficult divorces settled out of court. So, he assigned case after case to a St. Paul mediator Blakely swore he could trust. There were two problems:

The attorney was his own.

He owed her six figures.

The Goodhue County district judge stands accused of funneling 19 divorce cases to the law firm that handled his divorce in exchange for a steep reduction in his legal debt. He appeared Monday before a judicial fact-finding panel to fight allegations of misconduct.

The "quid pro quo" arrangement allegedly helped him slice two-thirds — nearly $64,000 — off a legal bill of $108,000 left over from his divorce, according to attorneys for the Minnesota Board on Judicial Standards, which filed a complaint against him in August.

In a November 2005 e-mail to attorney Christine Stroemer, Blakely said he was saddled with debts from his failed marriage and the six children he and his fiancee were raising together. He offered Stroemer the "lump sum" proceeds from the sale of his home as a compromise.

We are challenging the Authority and Jurisdiction of State Canvass Board
http://sharon4staterep64a.blogspot.com
http://opinions-unpublished.blogspot.com

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

A07-1203

Jennifer Lund, et al., Respondents, vs. Michael J. Brouillette, Appellant.

Filed November 18, 2008

Affirmed

Minge, Judge

Dakota County District Court

File No. C2-07-12736

Jennifer Lund, 2125 Saphire Lane, Eagan, MN 55122 (pro se respondent)

Michael James Brouillette, P.O. Box 111004, St. Paul, MN 55111-0004 (pro se appellant)

Considered and decided by Connolly, Presiding Judge; Lansing, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant challenges the issuance of a harassment restraining order. Because we conclude that the district court did not clearly err in finding facts supporting the order and the record supports the breadth of the order, we affirm. 2

FACTS Respondents Jennifer Lund and Ricky Spreeman petitioned the district court for a harassment restraining order under Minn. Stat. § 609.748 (2006), alleging that appellant Michael Brouillette, who is Lund’s ex-boyfriend, had harassed them numerous times between March 2004 and March 7, 2007. In an accompanying affidavit, Lund and Spreeman alleged that Brouillette’s harassment included "tracking" the whereabouts of Lund, making uninvited visits to and burglarizing their home, damaging Lund’s property, calling Lund disreputable names, making harassing phone calls, and continuously threatening that the respondents would be killed by Brouillette, the Hell’s Angels biker gang, or Brouillette’s "buddies." Brouillette denied the allegations.

At the hearing on the petition, the district court heard testimony from Brouillette, Lund, and Spreeman.1 Lund testified that Brouillette had harassed Spreeman and her for the past three years. Lund stated that, due to this conduct, she and Spreeman had moved three times in an effort to hide, but Brouillette always found them. Lund testified that Brouillette’s most recent series of contacts began on February 7, 2007, when he started calling Lund and Spreeman on Spreeman’s cell phone. Lund stated that, on February 7, she was on a business trip in Phoenix, Arizona with Spreeman. Brouillette recently had been discharged from probation. During one call, Brouillette told Spreeman that he knew

1 The respondents also attempted to enter into evidence three Eagan Police Department incident reports, dating from February 7, 2007, February 8, 2007, and March 5, 2007, which detail interactions between Brouillette and the respondents. Although the district court did not receive the reports into evidence and they are not a part of the record, they remained in the district court file. Because the reports are not part of the record, we do not consider them. 3

the couple’s flight time back to Minneapolis, what hotel they were staying at, what Lund was doing in Phoenix, and Lund’s home address in Eagan. This made Lund "really nervous." According to Lund, Brouillette called Lund’s home while she was in Arizona and spoke to Lund’s babysitter, asking the babysitter, "Hey baby, what time can I come over?" Spreeman and Lund were especially disturbed by this phone call because Brouillette was aware that they were in Arizona. Lund testified that she and Spreeman became very irate with Brouillette and returned at least two of his phone calls. According to Lund, this did not stop Brouillette from continuing to call and harass the respondents. Out of "anger," "frustration," and prompting from law enforcement, Lund and Spreeman eventually changed their cell and home phone numbers and in March 2007 applied for the restraining order.

Spreeman testified that Lund and he had been in a "three-and-a-half year battle" with Brouillette. Spreeman stated that he consistently received death threats from Brouillette, which included Brouillette claiming the ability to use the Hell’s Angels and the Navy Seals to carry out the murders.

Brouillette testified that he placed four or five calls to Spreeman and Lund’s cell phones from February 7 to February 11, 2007. He claimed that he placed these calls to tell Spreeman and Lund to leave him alone. He denied that he called the babysitter. Brouillette also submitted a tape recording of calls made to him by Lund and Spreeman. Brouillette claimed that the recording shows that Spreeman and Lund had been harassing him. Brouillette testified that he previously tried to get a restraining order on the 4

respondents, but he was unsuccessful. He also testified that he did not ride with the Hell’s Angels.

The district court found that Brouillette had made four or five telephone calls. The district court read the statutory definition of harassment to the parties, determined that Brouillette’s calls were "clearly unwanted" and had a "substantial impact" on Lund and Spreeman, concluded that the calls constituted harassment and granted the restraining order. In addition to prohibiting Brouillette from harassing or having contact with Lund or Spreeman, the order requires Brouillette to stay at least one mile away from the respondents’ residence and to stay away from Spreeman’s place of business. The order specifies that it remains in effect until April 16, 2009. This appeal follows.

D E C I S I O N

I.

The first issue is whether the district court abused its discretion when it granted the harassment order for protection. "An appellate court reviews a district court’s grant of a harassment restraining order under an abuse-of-discretion standard." Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). It is sufficient if the district court finds that the perpetrator’s "actions had, or were intended to have, a substantial adverse effect on the safety, security, or privacy of" the petitioner. Id. at 844. A district court’s findings of fact are reviewed for clear error, but we will "reverse the issuance of a restraining order if it is not supported by sufficient evidence." Id. at 843-44. Although remand may be required if the district court fails to make adequate findings, remand is unnecessary if this court can infer the findings from the 5

district court’s conclusions. Welch v. Comm’r of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996).

"Harassment" includes "a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect . . . on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target." Minn. Stat. § 609.748, subd. 1(a)(1) (2006). The law provides that a district court may issue a restraining order if it finds "reasonable grounds to believe that [Brouillette] has engaged in harassment." Minn. Stat. § 609.748, subd. 5(a)(3) (2006). "The determination of whether certain conduct constitutes harassment may be judged from both an objective standard, when assessing the effect the conduct has on the typical victim, and a subjective standard, to the extent the court may determine the harasser’s intent." Kush, 683 N.W.2d at 845. Inappropriate or argumentative statements alone cannot be considered harassment. Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002). However, a party’s actions need not be obscene or vulgar to constitute harassing conduct. Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. App. 1993).

The record supports the district court’s finding of harassment. Lund and Spreeman testified about a considerable history of unwanted contact with Brouillette. Lund is his ex-girlfriend. She and Spreeman had tried to avoid Brouillette for three or more years, but Brouillette persisted in finding them. Brouillette admitted that he placed four or five calls to Spreeman and Lund’s cell phones from February 7 to February 11, 2007. Spreeman testified that Brouillette had made death threats over the phone. The 6

call that Brouillette made on February 7, 2007 to Spreeman’s cell phone and a subsequent call to her babysitter both disturbed and irritated the respondents. Brouillette’s claim that his calls were not harassing because he merely was returning phone calls to the respondents presents questions of characterization and credibility, which are determined by the district court. In Kush, the court found that one party may harass another party over the phone even if the victim is the party that placed the call. 683 N.W.2d at 844. In this case, even if Brouillette was returning phone calls made to him by Lund and Spreeman, this fact would not preclude the conclusion that Brouillette engaged in harassing conduct.

Here, the district court’s findings that Brouillette placed four or five harassing, unwanted phone calls to the respondents that had a "substantial impact" on them was an adequate basis for the order. Although the district court did not discuss any other allegations made by the respondents or by Brouillette and made no other factual findings, we assume that the district court concluded the factual grounds identified were adequate to support its decision and that it did not need to have a more expansive statement.

II.

The second issue is whether the district court abused its discretion when it ordered Brouillette to stay one mile from the respondents’ residence. Again, we review the district court’s order under an abuse-of-discretion standard. Under Minnesota law, when the requirements for a harassment restraining order are met, the district court "may grant a restraining order ordering the respondent to cease or avoid the harassment of another 7

person or to have no contact with that person . . . ." Minn. Stat. § 609.748, subd. 5(a) (2006).

The district court ordered the one-mile buffer after Lund expressed concern that Brouillette had driven by her home on his motorcycle on the night before the hearing. The district court found that the distance was "not unreasonable." Because we give high deference to the district court’s exercise of discretion and because Brouillette provides no legal basis for his claim that a one-mile buffer around a victim’s house is unreasonable, we conclude that the district court did not abuse its discretion when ordering Brouillette to remain one mile from the respondents’ residence.

III.

The third issue is whether the district court abused its discretion when it ordered the restrictions to remain in effect for two years. Again, we review the district court’s order under an abuse-of-discretion standard. Under Minnesota law, the district court may grant relief through a restraining order "for a fixed period of not more than two years." Minn. Stat. § 609.748, subd. 5(a)(3) (2006). In this case, the district court heard testimony from Lund and Spreeman that Brouillette had persisted in unwanted contact with them for three or more years prior to the hearing. The district court had the power to order the two-year duration under Minn. Stat. § 609.748. Given the apparent seriousness of Brouillette’s threats and his persistence in finding and contacting Lund and Spreeman, we conclude that the district court was well within its discretion when establishing the two-year duration of the restraining order. 8

We are aware that this case is one of several that has resulted from a particularly prolonged and troubling breakup between Brouillette and Lund. We are aware of two other recent appeals before this court initiated by Brouillette against Lund. See Brouillette v. Lund, No. A07-1753 (Minn. App. Sept. 9, 2008); Brouillette v. Lund, No. A07-1880 (Minn. App. filed Oct. 2, 2007). Brouillette should recognize that the public, judicial record makes it clear that his conduct involves much more than five or six harassing phone calls.

Affirmed.

Dated:

Unpublished Fee v. Edina Realty et al

http://www.mncourts.gov/opinions/coa/current/opa072211-1110.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

A07-2211

Daniel M. Fee, et al., Appellants, vs. George G. Stahley, et al., Respondents, Edina Realty, et al., Respondents, Cendant Mortgage Corporation, Respondent, TCF National Bank, Respondent, Lawyers Title Insurance Corporation, Respondent.

Filed November 10, 2008

Affirmed

Worke, Judge

Chisago County District Court

File No. 13-CV-06-432

James R. Doran, Doran Law Offices, 416 East Hennepin Avenue, Minneapolis, MN 55414 (for appellants)

Kelly A. Putney, Bassford Remele P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402 (for respondents Edina Realty, et al.) 2

Timothy J. Grande, Mychal A. Bruggeman, Mackall, Crounse, & Moore, P.L.C., 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for respondent Lawyers Title Ins. Co.)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Collins, Judge.*

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals 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

WORKE, Judge On appeal from the grant of summary judgment in favor of respondents real-estate company, agent, and title-insurance company, appellants argue that genuine issues of material fact exist as to whether (1) the real-estate company and agent negligently misrepresented information about the property appellants purchased, and (2) the title-insurance company was in breach of contract by failing to indemnify and defend them on title issues. We affirm. FACTS

In 1997, respondents George G. Stahley and Lori A. Stahley purchased property that they believed was approximately 16 acres and included lakeshore. For approximately seven years the Stahleys lived on the property, paid property taxes on 15.8 acres, and never had an issue with a neighbor claiming to own any portion of the property. When the Stahleys decided to sell their property they enlisted the help of real-estate agent respondent Paul Ross Olson. Olson walked the property with the Stahleys and instructed them to mark the corners and boundary lines with stakes. The Stahleys 3

told Olson that the property was approximately 16 acres with approximately 100 feet of lakeshore. Olson confirmed the acreage with tax records. Respondent Edina Realty and Olson prepared a MLS listing describing the property as having, among other things, 100 feet of shoreline, 16 acres of rolling land, an asphalt driveway, and a private sewer.

In September 2004, appellants Daniel M. Fee and Kerri A. Fee became interested in the Stahleys’ property. Appellants visited the property a total of four times before making an offer. Appellant Kerri A. Fee (Fee) is a licensed realtor and acted as the buyer’s agent. Fee "looked at everything" related to the property, including plat maps provided by the county. Fee believed that she had "checked everything out" and confirmed that the property she and her husband were buying was accurately described by Olson and the Stahleys, although she did not order a survey. On September 21, 2004, appellants and the Stahleys entered into a purchase agreement. The parties closed on October 28, 2004. The same day, appellants purchased title insurance from respondent Lawyers Title Insurance Corporation (Lawyers). The legal description provided in the policy matches the legal description provided in the warranty deed conveyed to appellants.

While appellants were still moving onto the property, a northerly neighbor, Robert Peterson, ordered a survey of his property. Appellants saw the surveyors on what they believed to be their property and asked the surveyors what they were doing on their land. A surveyor replied that he believed that it was Peterson’s property. When asked what he planned to do, Peterson replied that he "will just have to let the lawyers figure it out." Appellants ordered a survey, which indicated that they did not own 16 acres with 100 feet 4

of lakeshore, but rather 7.1 acres and no lakeshore; that a fence line encroached onto their neighbor’s property; and their septic cleanout and driveway is on Peterson’s property. No court action has been taken against appellants to divest them of the land they believed they purchased, they still live in the home and use the driveway, and nobody has told them to remove any encroachments. However, appellants made a claim for indemnification, which Lawyers refused.

In 2006, appellants filed a complaint against respondents Stahleys, Edina Realty, Olson, Cendant Mortgage Corporation, TCF National Bank, and Lawyers. Appellants alleged that the Stahleys, Edina Realty, and Olson intended to deceive and induce them to purchase the property, and that Lawyers breached the title-insurance policy by refusing to insure and compensate them. In April 2007, respondents moved for summary judgment. Following a hearing, the district court ordered that the record would remain open for the Petersons’ depositions. Appellants filed an offer of proof, in which they requested that the court consider the testimony of a real-estate broker who would testify regarding an agent’s standard of care.

The district court granted respondents’ motions for summary judgment and refused to consider appellants’ offer of proof. The court concluded that appellants failed to establish their claims of intentional and negligent misrepresentation. The district court also concluded that appellants failed to establish their breach-of-contract claim against Lawyers, finding that appellants’ claimed losses related to land outside of the legal description included in the policy. This appeal follows. 5

D E C I S I O N

In reviewing a district court’s grant of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the law was erroneously applied. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [the moving] party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. "Speculation, general assertions, and promises to produce evidence at trial are not sufficient to create a genuine issue of material fact for trial." Nicollet Restoration v. St. Paul, 533 N.W.2d 845, 848 (Minn. 1995); see also Minn. R. Civ. P. 56.05 (requiring affidavits "present specific facts" because "mere averments or denials" do not preclude summary judgment). Although an appellate court reviews the evidence in a light most favorable to the non-moving party, and is prohibited from weighing the evidence, it is not enough for the non-moving party to show "some metaphysical doubt." DLH, Inc. v. Russ, 566 N.W.2d 60, 70-71 (Minn. 1997).

Negligent Misrepresentation

Appellants first argue that the district court erred in granting summary judgment in favor of Edina Realty and Olson, contending that a genuine issue of material fact exists regarding whether Edina Realty or Olson negligently misrepresented facts. Appellants argue that Olson failed to exercise reasonable care in determining the correct boundaries 6

and negligently communicated that the property had an asphalt driveway, private sewer system, and lakeshore.

Negligent misrepresentation causing pecuniary loss is defined as follows:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Smith v. Brutger Cos., 569 N.W.2d 408, 414 n.3 (Minn. 1997) (quoting Restatement (Second) of Torts § 552 (1977)). Negligent misrepresentation is limited to situations when one party is providing guidance to another; there is no cause of action when the parties are engaging in an arms-length commercial transaction. Safeco Ins. Co. of Am. v. Dain Bosworth Inc., 531 N.W.2d 867, 873 (Minn. App. 1995), review denied (Minn. July 20, 1995).

Because neither Edina Realty nor Olson provided information "for the guidance" of appellants and this was an arms-length commercial transaction, appellants’ argument fails. Edina Realty and Olson represented the sellers, the Stahleys. Appellants were represented by Fee, a licensed real estate agent, acting as the "buyer’s agent." Additionally, Olson did not fail to exercise reasonable care. Appellants offer that a real estate broker would testify that Olson breached the standard of care for a real estate agent in communicating information to a buyer. But appellants presented this as an offer of proof after the summary-judgment hearing and the district court refused to accept this offer of proof. Therefore, we will not consider appellants’ proffered evidence on appeal. 7

Moreover, appellants’ argument that Olson failed to exercise reasonable care fails because an agent is not required to make an independent investigation into facts which he has no reason to doubt, unless he undertakes such an obligation. See Hommerding v. Peterson, 376 N.W.2d 456, 459 (Minn. App. 1985) (stating realtor has no duty to disclose material facts absent special knowledge). First, Olson had no reason to doubt what the Stahleys told him about the property. The Stahleys believed that they owned 16 acres, 100 feet of lakeshore, their driveway, and their septic system. The Stahleys moved onto the property in 1997 and used all of the property as if it belonged to them. Second, none of the Stahleys’ neighbors ever claimed to own any of the property. Third, the MLS listing is based on the information the Stahleys gave to Olson and the property boundaries they marked. Lastly, Olson checked the tax records and confirmed that the Stahleys paid taxes on approximately 16 acres.

Finally, appellants cannot argue that they relied on Olson’s representations or that he undertook an obligation to independently investigate facts, because Fee acted as the buyer’s agent and investigated the facts. Appellants visited the property a total of four times before making an offer. Fee stated that she "looked at everything" related to the property and believed that she had "checked everything out" and confirmed that the property she and her husband were buying was accurately described by Olson and the Stahleys. Appellants did not order a survey because everything checked out. Because Fee undertook the obligation as the buyer’s agent, appellants cannot now claim that Edina Realty and Olson negligently misrepresented facts. Because there are no genuine issues of material fact and the law was not erroneously applied, appellants’ claim of negligent 8

misrepresentation fails, and the district court did not err in granting summary judgment in favor of Edina Realty and Olson.

Breach of Contract

Appellants also argue that the district court erred in granting summary judgment in favor of Lawyers, contending that a genuine issue of material fact exists as to whether Lawyers is contractually obligated to defend and indemnify them regarding certain covered risks contained in their policy. "General principles of contract interpretation apply to insurance policies." Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn. 1998). "Interpretation of an insurance policy and application of the policy to the facts in a case are questions of law that we review de novo." Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn. 2001). "When interpreting an insurance contract, words are to be given their natural and ordinary meaning and any ambiguity regarding coverage is construed in favor of the insured." Id.

Appellants claim that ten covered risks are triggered: (1) they do not have actual legal access to and from the land; (2) someone has an easement on the land; (3) someone has a right to limit their use of the land; (4) they are forced to remove existing structures on the land because the structures encroach on neighboring property; (5) their title is defective; (6) someone has an encumbrance on their title; (7) someone owns an interest in their title; (8) someone claims to have rights affecting their title arising out of fraud, duress, incompetency or incapacity; (9) their title is unmarketable; and (10) the map, if any, attached to the policy does not show the correct location of the land according to public records. 9

Legal Access

Appellants claim that they do not have legal access because Peterson owns the driveway. However, Peterson has not denied appellants use of the driveway and they still use it. Additionally, the property abuts a public road; thus, appellants have legal access to their property.

Easement/Limit Use of Land/Remove Structures

Appellants claim that Peterson has an unrecorded easement and because he owns the driveway, lakeshore, and septic cleanout, he could limit their use of the land and demand that they remove their fences and septic system. First, appellants provide no evidence of an easement. Second, the title insurance covers only the land legally described in the policy and the legal description does not include the driveway, the lakeshore, or the septic cleanout. Finally, nobody has demanded that appellants remove any structures. The policy covers actual loss, and because appellants have suffered no loss, their claim is currently either improper or premature.

Title

Appellants claim that their title is defective; it has an encumbrance; Peterson owns an interest in it; someone claims to have rights affecting title arising out of fraud, duress, incompetency or incapacity; and it is unmarketable. Appellants contend that they do not own the land depicted in the drawing and that Peterson has an encumbrance. The policy covers the legal description attached to the policy—the policy does not cover the loss that appellants claim because the legal description does not include the lakeshore, driveway, or septic system. Further, there is no evidence that the title appellants received 10

is defective. Appellants have offered no argument for their claim that someone claims to have rights affecting title arising out of fraud, duress, incompetency or incapacity. Finally, appellants claim that their title is unmarketable because they have no vehicular access and diminished value because of the loss of lakeshore. However, appellants do have legal access and diminished value does not make their title unmarketable. Appellants have no evidence that their title is unmarketable because appellants have not shown that they have been unsuccessful in attempting to sell their property.

Map

Finally, appellants argue that a map is attached to the policy showing that they own lakeshore and the driveway. But a map was not attached to the policy. Appellants suggest that a "property sketch" was attached and serves to remove standard exceptions. But the sketch provides: "This is not a survey." Additionally, the sketch states that the locations are approximate, it is only for informational purposes, it is not to be considered a liability of the company, and is limited for mortgage purposes. Moreover, the record shows that appellants did not rely on the property sketch and that they were not even sure when they first looked at it. The record shows that the sketch was created for internal use only to verify access, if the home is within lot lines, and if there is new construction. The record also shows that generally, a sketch is not attached to a policy and is given to a buyer only upon request. Thus, the sketch was never intended to be used as a map. Because there are no genuine issues of material fact and the law was not erroneously applied, the district court did not err in granting summary judgment in favor of Lawyers.

Affirmed.

A07-1311 Walnut Towers, Respondent, vs. Lori A. Schwan, Appellant

Judge Natalie Hudson mn - Google Search

Former St.Paul City Attorney and SMRLS Lawyer

Judge Natalie Hudson mn - Google Search

Natalie Hudson smrls attorney mn - Google Search

http://www.lawlibrary.state.mn.us/archive/ctapun/0809/opa071311-0916.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 A07-1311 Walnut Towers, Respondent, vs. Lori A. Schwan, Appellant. Filed September 16, 2008 Reversed Hudson, Judge Blue Earth County District Court File No. 07-CV-07-1183 Walnut Towers, 105 East Walnut Street, Mankato, Minnesota 56001 (respondent) Tashi Lhewa, Southern Minnesota Regional Legal Services, Inc., 12 Civic Center Plaza, Suite 3000, Mankato, Minnesota 56002-3304; and Michael Hagedorn, 166 East Fourth Street, Suite 200, St. Paul, Minnesota 55101-1448 (for appellant)

Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Collins, Judge.

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

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

HUDSON, Judge

On appeal in this eviction matter, appellant-tenant argues that the district court erred in (a) permitting respondent-corporation to appear in district court without the representation of a licensed attorney; (b) entering judgment in favor of respondent-corporation on the basis that appellant‟s request for reasonable accommodation would impose an undue financial and administrative burden on respondent-corporation; and (c) granting the request to evict appellant when appellant was not provided with the opportunity to meet with management before filing of the eviction action. Because the district court erred in allowing respondent-corporation to appear in district court without the representation of legal counsel, we reverse.

FACTS

In July 2006, appellant Lori Schwan entered into a lease agreement to rent a federally subsidized apartment from respondent Walnut Towers. In the following months, appellant was issued several "Notice of Lease/Rule Violations" for conduct that was allegedly in violation of her lease agreement. Finally, in March 2007, after a confrontation with her landlord, appellant was advised that her lease was terminated.

After an eviction action was filed against appellant in April 2007, appellant filed, in district court, a memorandum in support of reasonable accommodation. Appellant claimed to be disabled as defined in 42 U.S.C. § 3602 (h) (2003), and requested that Walnut Towers provide her with a reasonable accommodation. At the eviction hearing, Mary Dundas, the manager at Walnut Towers, appeared on behalf of Lasson Management, the corporation that 3

manages Walnut Towers. Appellant objected to Dundas appearing on behalf of the corporation because she is not a licensed attorney. The court overruled appellant‟s objection, stating that it is "the long standing tradition in Blue Earth County of not requiring incorporated landlords to be represented during eviction hearings." The district court then concluded that appellant "may have a disability as defined under 42 U.S.C. § 3602 (h)," but the "accommodation requested by [appellant] is unreasonable as it will impose undue hardships and/or undue financial and administrative burdens upon [Walnut Towers]." Thus, the district court entered judgment in favor of Walnut Towers. Appellant‟s eviction was stayed pending determination of this appeal.

D E C I S I O N

Appellant argues that the district court erred in permitting Walnut Towers, a corporation, to be represented by a non-attorney agent during eviction proceedings in district court. Questions concerning rules are questions of law, and we need not defer to the conclusions of law drawn by the district court from undisputed facts. See Reichel v. Hefner, 472 N.W.2d 346, 347 (Minn. App. 1991). Consequently, we review this issue de novo. See Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984) (stating that appellate courts review legal issues de novo).

We initially note that appellant phrases the issue as one of jurisdiction, and that while appellant does not specify whether her argument refers to personal jurisdiction, subject-matter jurisdiction, in rem jurisdiction, or some other type of jurisdiction, the substance of her argument suggests that she is arguing that the district court lacked subject-matter jurisdiction. The issue presented, however, is not one of jurisdiction. In the past, this court 4

has been presented with similar issues and has loosely used the term "jurisdiction" to conclude that a corporation may not appear in district court without the representation of a licensed attorney. See, e.g., World Championship Fighting, Inc. v. Janos, 609 N.W.2d 263, 265 (Minn. App. 2000) (holding that because a corporation could not appear in district court without an attorney, the district court was correct to conclude that it lacked jurisdiction to hear the case). More recently, the United States Supreme Court has cautioned against the misuse of the term "jurisdiction." Kontrick v. Ryan, 540 U.S. 443, 454–55, 124 S. Ct. 906, 915 (2004) (noting that "[c]ourts, including this Court . . . have more than occasionally [mis]used the term „jurisdictional‟"). In an effort to add clarity to the issue, this court recently stated that "[b]ecause the common law rule requiring that a corporation be represented by counsel in legal proceedings does not describe the classes of cases or persons within the district court‟s adjudicatory authority, the rule is not „jurisdictional.‟" Save Our Creeks v. City of Brooklyn Park, 682 N.W.2d 639, 643 (Minn. App. 2004), aff’d, 699 N.W.2d 307 (Minn. 2005). The Minnesota Supreme Court, on review, found this reasoning to be "persuasive" and adopted it. Save Our Creeks v. City of Brooklyn Park, 699 N.W.2d 307, 310 (Minn. 2005). Therefore, we reiterate that the issue of corporations appearing in district court without counsel does not involve the court‟s subject-matter jurisdiction to hear the case.

We now turn to the district court‟s decision to allow Walnut Towers, a corporation, to proceed in the eviction action without the representation of legal counsel. In reaching this conclusion, the district court stated that: 5

[Appellant‟s] counsel has raised the issue of [Walnut Towers] appearing in District Court without the assistance of an attorney. The Court has addressed this issue with [appellant‟s] counsel and reiterated the long standing tradition in Blue Earth County of not requiring incorporated landlords to be represented during eviction hearings. This policy is akin to the policy in other informal proceedings such as conciliation court. Ultimately, whether [Walnut Towers] is represented in Court by counsel would not change the facts or outcome of this case.

Appellant argues that under Minnesota law, the district court‟s conclusion is erroneous. We agree. In Minnesota, a corporation must be represented by an attorney in legal proceedings. Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 754 (Minn. 1992). "The purpose behind attorney licensing requirements „is the protection of the public and the courts from the consequences of ignorance or venality.‟" Id. (quoting Strong Delivery Ministry Ass’n v. Bd. of Appeals of Cook County, 543 F.2d 32, 33 (7th Cir. 1976)).1

1 In addition, Minn. Stat. § 481.02, subd. 3(12) (2006), provides that "any authorized management agent of an owner of rental property used for residential purposes, whether the management agent is a natural person, corporation, partnership, limited partnership, or any other business entity," is not authorized to "appear before a district court or the court of appeals or supreme court pursuant to an appeal" if the agent it not a licensed attorney. We think the language of this statute comports with Nicollet Restoration, but we recognize that there could be alternative readings of this statute. Nonetheless, because the statutory construction of Minn. Stat. § 481.02, subd. 3(12), was not briefed in this appeal, we decline to address it. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (stating that, generally, appellate courts will not consider issues not argued in the parties‟ briefs).

In Nicollet Restoration, the supreme court rejected the argument that Minn. Stat. § 481.02, subd. 2 (1990), authorized a corporation to appear by or through a non-attorney agent. 486 N.W.2d at 755. The court stated that under the common law, a corporation still must be represented by a licensed attorney when appearing in district court because "a 6

careful reading of Minn. Stat. § 481.02, subd. 2," does not permit an officer, employee, or agent appearing on behalf of a corporation in district court to be a non-attorney. Id. The court further noted that "[e]ven assuming that Minn. Stat. § 481.02, subd. 2, could be construed to permit a corporation to appear by or through a non-attorney agent, such a construction would raise serious constitutional problems." Id. The court then stated that under Article III, section I, of the Minnesota Constitution, the power to decide who may properly practice law before the courts of this state is vested solely in the judiciary. Id. Thus, the court held that "legislative enactments which purport to authorize certain classes to practice law in the courts of this state are not controlling upon the judiciary. As such, we reaffirm our conviction that a corporation must be represented by a licensed attorney when appearing in district court." Id. at 756.

Here, despite the district court‟s attempt to carve out an exception for incorporated landlords to appear in eviction hearings without representation by legal counsel, we conclude that on this record, Nicollet Restoration controls, and there is no legal support for such an exception. See Save Our Creeks, 699 N.W.2d at 309 (stating that under Minnesota common law, a corporation must be represented by an attorney in legal proceedings); see also Nicollet Restoration, 486 N.W.2d at 756 (holding that "a corporation must be represented by a licensed attorney when appearing in district court"); Janos, 609 N.W.2d at 265 (stating that the legislature did not intend that some corporations be allowed to institute district-court actions without the aid of counsel while others would not). We fully acknowledge that the conciliation court rules permit a corporation to appear by a non-attorney in conciliation-court proceedings. See Minn. R. 7

Gen. Pract. 512(c). We also recognize the supreme court‟s adoption of the rules for the "housing courts" in Hennepin and Ramsey counties, which permit incorporated landlords to appear without counsel, if their agents have the required "Power of Authority." See Minn. R. Gen. Pract. 603 (stating that "[n]o person other than a principal or a duly licensed attorney shall be allowed to appear in Housing Court unless the Power of Authority is attached to the complaint at the time of filing").2 But those rules do not apply to eviction proceedings heard in district court. When appearing before this court, our supreme court, or in district court, the law in Minnesota requires that a corporation must be represented by a licensed attorney. Therefore, given our role as an error-correcting court, we conclude that the district court erred in permitting the non-attorney agent of Walnut Towers to appear on behalf of the corporation in the eviction proceedings. Next, we address the appropriate remedy to be applied. In Save our Creeks, the issue before the supreme court was "whether a complaint filed and signed on behalf of a corporate entity by a non-lawyer is a legal nullity." 699 N.W.2d at 309. The court held that it was not a legal nullity, but it presented a curable defect. Id. at 310. The court then explained that

2 We express no opinion at this time as to whether Minn. R. Gen. Pract. 603 is inconsistent with Minn. Stat. § 481.02, subd. 3. See Minn. R. Gen. Pract. 601 (stating that the rules pertaining to housing court "shall apply to housing court practice except where they are in conflict with applicable statutes").

an amendment to add an attorney‟s signature to a corporation‟s complaint should be permitted when the following four elements are met: (1) the corporation acts without knowledge that its action was improper; (2) upon 8

notice, the corporation diligently corrects its mistake by obtaining counsel, but in no event may it appear in court without an attorney; (3) the nonattorney‟s participation in the action is minimal; and (4) the nonattorney‟s participation results in no prejudice to the opposing party.

Id. at 311.

Under Save Our Creeks, the mere fact that an attorney did not sign the eviction complaint on behalf of Walnut Towers does not render the complaint void. See id. But in this case, unlike in Save Our Creeks, there was never any attempt to remedy the defect and Walnut Towers still has not retained counsel to represent it in this matter. Because the defect caused by the non-attorney appearance on behalf of Walnut Towers was not cured, the district court should have dismissed the eviction action, rather than proceeding to trial. Accordingly, we reverse the judgment in favor of Walnut Towers. In light of our decision, the additional issues raised by appellant are moot and, therefore, we decline to address them.

Reversed.