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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

STATE OF MINNESOTA
IN COURT OF APPEALS
A05-2041


Metropolitan Airports Commissions,
Plaintiff,

vs.

William J. Bearman, et al.,
Appellants,

Farm Credit Services of St. Cloud, et al.,
Defendants,

City of Eden Prairie,
Respondent.


Filed July 3, 2006
Reversed
Halbrooks, Judge


Hennepin County District Court
File No. CD 000002625

Leland S. Watson, 836 Wells Fargo Midland Building, 401 2nd Avenue South, Minneapolis, MN 55401 (for appellants)

Mark J. Johnson, Siira B. Gunderson, Gregerson, Rosow, Johnson & Nilan, Ltd., 1600 Park Building, 650 Third Avenue South, Minneapolis, MN 55402 (for respondent)


Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
S Y L L A B U S
In order to levy a special assessment, a city must follow the procedure outlined in Minn. Stat. § 429.061 (2004), and absent a resolution adopting the special assessment, there is no valid lien against the property.
O P I N I O N
HALBROOKS, Judge
Appellants challenge the district court’s order awarding respondent the remaining funds from an eminent-domain proceeding. Appellants allege, among other things, that they are entitled to the funds because respondent never enacted a resolution levying the special assessment that the parties agreed to. Because the city council failed to adopt a resolution levying the special assessment, there is no valid lien against appellants’ property, and they are entitled to the remaining funds. We therefore reverse.
FACTS
In 1999, appellants William and Claudia Bearman were notified by an agent of the Metropolitan Airports Commission (MAC) that MAC intended to take appellants’ property by eminent domain. Appellants, at the time, ran an equine-stabling business. After learning of the possible taking, appellants phased out their equine business and took steps to develop their property as a residential subdivision.
Appellants claim that between 1999 and 2001, they were sporadically informed that the taking might not occur. In February 2001, MAC filed its eminent-domain petition in the district court. The district court approved the petition in May and appointed a commission to determine compensation.
In the interim, in order to proceed with their residential subdivision, appellants negotiated with respondent city of Eden Prairie to gain approval for rezoning. The subdivision also required certain improvements, including sewers, water mains, and an extension of Eden Prairie Road. The parties entered into an assessment agreement (agreement) on August 21, 2001, whereby respondent would complete the improvements and appellants’ property would be subject to a special assessment in the amount of the cost of the improvements. The parties estimated that cost to be 4,897.25, and both agreed that that was the amount of special benefits the property would receive from the improvements.
On October 10, 2001, the commissioners filed their compensation award in the district court, which constitutes the official date of the taking. The commissioners awarded compensation in the amount of ,847,346, but failed to apportion the award amongst the interested parties. Appellants conveyed the property to MAC in December at a closing. No action, including a city-council resolution adopting appellants’ petition for the special assessment, was taken by respondent on the agreement either prior to, or following, the taking in October 2001. In August 2004, appellants sent respondent a letter, attempting to terminate the agreement effective October 1, 2004.
The motion for approval of a final certificate of the eminent-domain proceeding was filed with the district court on March 16, 2005, at which time MAC had paid compensation to the interested parties and placed the disputed funds in escrow. The district court set a date to finalize approval of the eminent-domain proceeding. Appellants and respondent both moved for disbursement of the escrowed funds. The district court granted respondent’s motion and denied appellants’ motion, thereby ordering disbursement of the escrowed funds to respondent. This appeal follows.
ISSUE
Is the special-assessment agreement valid and enforceable?

ANALYSIS
“The levying of a special assessment is a legislative act. When an assessment is regularly made, it is presumed to be lawful and correct and the burden of proof rests upon the objector to demonstrate its invalidity.” Joint Indep. Sch. Dist. No. 287 v. City of Brooklyn Park, 256 N.W.2d 512, 516 (Minn. 1977) (citing In re Appeals by Am. Oil Co. v. City of St. Cloud, 295 Minn. 428, 435, 206 N.W.2d 31, 36 (1973) (stating that “[l]aying and apportioning assessments is legislative in its nature, and an assessment made by the body charged with that duty is presumed to be lawful and correct”) (quotation omitted)).
Chapter 429 of the Minnesota Statutes regulates the levying of special assessments for local improvements—the type of improvements involved here. Minn. Stat. § 429.061, subd. 1 (2004), regulates the assessment procedure:
At any time after the expense incurred or to be incurred in making an improvement shall be calculated under the direction of the council, the council shall determine by resolution the amount of the total expense the municipality will pay . . . . The proposed assessment roll shall be filed with the clerk and be open to public inspection. The clerk shall thereupon, under the council’s direction, publish notice that the council will meet to consider the proposed assessment.

(Emphasis added.) Prior to the public hearing on the proposed assessment, any affected landowners may file objections to the proposal with the clerk. Minn. Stat. § 429.061, subd. 1. At the public hearing, “the council shall hear and pass upon all objections to the proposed assessment.” Id., subd. 2 (Supp. 2005). The council may then adopt the resolution. Id. “The assessment . . . shall be a lien upon all private and public property . . . from the date of the resolution adopting the assessment.” Id. (emphasis added). The definition of council, for purposes of this chapter, is “the body of the city having general legislative powers.” Minn. Stat. § 429.011, subd. 3 (2004).
Moreover, “[w]hen any portion of the cost of an improvement is defrayed by special assessments, the procedure prescribed in this chapter shall be followed unless the council determines to proceed under charter provisions.” Minn. Stat. § 429.021, subd. 3 (2004) (emphasis added); see Minn. Stat. § 645.44, subd. 16 (2004) (stating that “[s]hall is mandatory”).
Here, it is undisputed that respondent’s council never enacted a resolution adopting the special assessment. The parties entered into a contract, stating that appellants agreed to the assessment and that they waived their right to notice of the public hearing, the right to have a public hearing, and their right to object to the assessment. But they did not, and could not, waive the procedure by which an assessment is levied. It is required by statute that the council levy the special assessment, as it is a legislative function that the legislature delegated only to the council. See Minn. Stat. § 429.021, subd. 3. Respondent’s mayor signed the agreement; but that is not sufficient to levy a special assessment because it is not the procedure outlined by the statutes.
The agreement stated that the special assessment was a lien against the land. But it does not become a lien against the land until a special assessment is levied. Minn. Stat. § 429.061, subd. 2. Thus, the agreement did not, in and of itself, create a valid lien against the land.
D E C I S I O N
Because the city council never adopted a resolution levying the special assessment, it is invalid and unenforceable. Appellants are entitled to the funds in the escrow account.
Reversed.

The following are the civil opinions issued today by the Minnesota Court
of Appeals and designated by it as "unpublished and [not to] be cited
except as provided by Minn. Stat. ? 480A.08, subd. 3 (1996)."

If you see a decision that you want to read in full, you can get the
full text of just that decision two ways. You can obtain the decisions
in HTML directly from the Court by going to
http://www.courts.state.mn.us/?page=433; or you can get copy in Word by
going to http://www2.mnbar.org/ctops, and clicking on the link with the
corresponding file number.

A05-1162
A05-2405

In the Matter of a Request
for a Contested Case Hearing
on the Proposed Air Emission
Permit for Heron Lake BioEnergy, LLC
Fuel Ethanol Production Facility.
AND
Minnesota Center for
Environmental Advocacy, et al.,
Relators,
vs
Heron Lake BioEnergy, LLC,
Respondent,
Minnesota Pollution Control Agency,
Respondent.

HUDSON, Judge
In this consolidated appeal, relators challenge the Minnesota Pollution
Control Agency's ("MPCA") issuance of an air-emission permit to Heron
Lake BioEnergy, LLC ("HLBE" or "the facility"). In initially filed
appeal A05-1162, relators argue that (a) they raised disputed issues of
material fact regarding the proposed facility's potential to emit
pollutants and therefore are entitled to a contested-case hearing, and
(b) the record lacks sufficient evidence to support the MPCA's
conclusions that HLBE is a "synthetic minor" source of certain air
pollutants. While that appeal was pending, MPCA modified the permit,
and relators filed a second appeal, arguing that (a) the modified permit
increases the quantity of certain pollutants that the facility can emit;
(b) MPCA did not recalculate the relevant emission figures based on the
permit modifications; and (c) the issuance of the modified permit while
the prior appeal was pending prejudiced relators. Because relators did
not demonstrate that a contested-case hearing was necessary to resolve
material issues of fact and to assist the agency in making its decision,
and because there was substantial evidence to support the agency's
issuance and later modification of the permit, we affirm.

= = = =

A05-1246

Hyland Courts Town Home
Owners Association, et al.,
Appellants,
vs.
BEI Exterior Maintenance Corporation,
defendant and third party plaintiff,
Respondent,
vs.
William Cole d/b/a Cole Roofing,
third party defendant,
Respondent.

HUDSON, Judge
In this appeal from denial of posttrial motions and judgment in an
action for damages for the negligent reroofing of town-homes, appellants
argue that (a) the jury's findings on negligence are inconsistent as a
matter of law, requiring a new trial; (b) counsel improperly appealed to
the prejudice and passions of the jury in closing arguments, requiring a
new trial; and (c) the Hyland Courts Town Home Owners Association is
entitled to JNOV on the issue of whether the Hyland Courts board orally
modified the contract between Hyland Courts and the contractor. We
conclude that the district court did not err in changing the jury's
special-verdict answer when the evidence established, as a matter of
law, that the negligence of the home-owners' association board was a
direct cause of their damages. We further conclude that the district
court (a) did not abuse its discretion in denying a new-trial motion
when any improper statement by BEI's attorney in closing argument did
not prejudice appellants and (b) did not err in denying JNOV on the
authority of the home-owners' association board president to bind the
board when the jury was never asked to determine this issue. We affirm.



= = = =

A05-1476

MaryEllen Alt,
Appellant,
vs.
Mainstreet Lofts, LLC,
Defendant,
Daniel E. Basil, et al.,
Respondents.

WRIGHT, Judge

In this breach-of-contract action, appellant argues that summary
judgment was granted in error because there are genuine issues of
material fact regarding whether respondents fulfilled their obligations
under the contract. We affirm.

= = = =

A05-1585
A05-1587
A05-1588
A05-1589

Keith Burtch, et al.,
Appellants (A05-1585),

James Retterath, et al.,
Appellants (A05-1587),
vs.
Oakland Park, Inc.,
Respondents,
AND
Oakland Park, Inc., et al.,
Respondents,
vs.
Keith Burtch,
Appellant (A05-1588),
Linnea Burtch, et al.,
Appellants (A05-1589).

SHUMAKER, Judge
Mobile-home park residents challenge the amount of the district court's
award of attorney fees under the private-attorney-general statute as
having been improperly calculated. The park owner contends that the
court improperly awarded fees for aspects of the litigation that
conferred no public benefit. Because the district court neither abused
its discretion nor committed clear error in its attorney-fee award, we
affirm.
= = = =

A05-1647

In re: Limited Guardianship of the Person
of LaVonne H. McDonald, and
In re: The Conservatorship of the Estate
of LaVonne H. McDonald.

WILLIS, Judge
Appellant challenges the district court's orders appointing a limited
guardian of the person and a conservator of the estate of appellant's
sister. Because the record shows that the district court did not abuse
its discretion by appointing the guardian or conservator, we affirm.

= = = =

A05-1670

In re the Marriage of:
David John Mielke, petitioner,
Appellant,
vs.
Kelly Ann Solt-Mielke,
Respondent.

HALBROOKS, Judge
Appellant challenges the district court's order finding him voluntarily
unemployed, modifying his child-support obligation, and awarding
respondent attorney fees. Because the record supports the district
court's findings of fact and the district court did not abuse its
discretion, we affirm.

= = = =

A05-1717

John Gergen, et al.,
Respondents,
vs.
City of Mantorville,
Appellant.

LANSING, Judge
The City of Mantorville appeals from a district court order directing
the city to issue John and Tara Gergen a building permit for
construction of a storage building. Because the district court properly
determined that the proposed structure was a permitted use, which did
not require a variance from the applicable zoning ordinance, we affirm.

= = = =

A05-1794

In re the Estate of Howard C. Kinney, Deceased.

WORKE, Judge
On appeal from the district court's grant of summary judgment and order
invalidating an antenuptial agreement because respondent was not advised
of her right to seek independent legal counsel before signing the
agreement, appellant argues that (1) the district court erred by failing
to apply the common law as it existed in 1969, and (2) a genuine issue
of material fact exists regarding respondent's opportunity to seek the
advice of counsel. We affirm.

= = = =

A05-1816

John Kruesel,
Appellant,
vs.
Estate of Wayne M. Nygaard,
Respondent.

HUDSON, Judge
In this appeal from summary judgment, appellant argues that, under the
parties' shareholder agreement providing for the purchase of shares upon
the death of one party, (a) the court erred in ruling that under the
unambiguous language of the agreement, the shares are to be valued
through an appraisal of the real property rather than by using the tax
base established by the county assessor; and (b) in the event the
agreement is deemed ambiguous, extrinsic evidence establishes as a
matter of law that the parties intended that the value of the shares was
to be determined by using the tax base established by the county
assessor as the value of the real property. Because the district court
correctly interpreted the unambiguous language of the contract, we
affirm.

= = = =

A05-1845

In the Matter of: Keith Sundberg, as Trustee for the
Merle J. Sundberg Revocable Trust dated August 21, 2002,
Respondent,
vs.
Bruce N. Sundberg,
Appellant.

HALBROOKS, Judge
In this appeal from an order granting summary judgment in favor of
respondent in an eviction action, appellant argues that the district
court erred in granting summary judgment because the cancellation of the
contract for deed was void. Because eviction actions are summary
proceedings and the district court properly granted summary judgment, we
affirm.

= = = =

A05-1946

Ricky Lee Edling, et al.,
Relators,
vs.
Isanti County, et al.,
Respondents.

HALBROOKS, Judge
In this certiorari appeal, relators argue that the county's revocation
of a conditional-use permit was defective because the county failed to
make adequate findings supported by the record and because the relators
were denied due process of law. We affirm.

= = = =

A05-2045

In re the Marriage of:

Lynne Singer Grossman, petitioner,
Appellant,
vs.
Andrew Charles Grossman,
Respondent.

KALITOWSKI, Judge
Appellant Lynne Singer Grossman challenges the consensual special
magistrate's orders regarding the parties' dissolution, arguing that the
consensual special magistrate (1) erred in enforcing the parties'
premarital agreement; (2) erred in determining that respondent's
nonmarital property includes certain personal property items; (3) abused
its discretion by failing to deviate upward from the child support
guidelines when awarding appellant child support; (4) abused its
discretion in ordering the parties to pay for their own work-related
daycare expenses; and (5) abused its discretion by declining to award
appellant need-based attorney fees. We affirm.

= = = =

A05-2093

Mark Bloom, et al.,
Respondents,
vs.
Western National Mutual Insurance Company,
Appellant.

PARKER, Judge
This is an appeal from the denial of the insurer's motion for summary
judgment and certification of a question as important and doubtful in an
insurance-coverage dispute in which the homeowners claimed coverage
under their homeowners' insurance policy for the costs incurred in
renovating their home after discovering damage. The certified issue is
as follows:
When water enters a home due to defective design, faulty workmanship or
faulty materials furnished in connection with construction or remodeling
and causes damage, is that damage excluded from coverage under either
the "errors, omissions and defects" exclusion or the "wear and tear"
exclusion, or is it covered as an ensuing loss?


= = = =

A05-2172

In re the Marriage of:

Lisa M. Jewison, petitioner,
Respondent,
vs.
Jeffrey J. Jewison,
Appellant.

LANSING, Judge
In this appeal from the district court's order modifying Jeffrey
Jewison's parenting time and granting Lisa Farley's motion for
attorneys' fees, Jewison challenges the scope of relief and the
sufficiency of the evidence to support the order for attorneys' fees.
The district court did not abuse its discretion by modifying the
parties' obligations for parenting-time transportation or by requiring
Jewison to pay conduct-based attorneys' fees. We therefore affirm the
district court's judgment but modify the imposition of attorneys' fees
to reflect the relief requested by Farley in her motion.

= = = =

A05-2257

Wiley E. Stratton,
Relator,
vs.
Hannon Security Services, Inc. (1991),
Respondent,
Department of Employment and Economic Development,
Respondent.

HUDSON, Judge
Relator Wiley Stratton brings a certiorari appeal of the decision of the
unemployment-law judge that relator is disqualified from receiving
unemployment benefits. Because relator quit his employment for a
medical reason, but did not so inform his employer or request
accommodation, relator does not satisfy the statutory exception, and we
affirm.

= = = =

A06-43


In the Matter of the Civil Commitment of:
DuWayne Melvin Gorden.

LANSING, Judge
In this appeal from an order for indeterminate commitment as a sexually
dangerous person and a sexual psychopathic personality, DuWayne Gorden
challenges the sufficiency of the evidence to support his commitment,
his placement in the Minnesota Sex Offender Treatment Program, and the
constitutionality of the commitment statutes. Because clear and
convincing evidence supports Gorden's commitment as a sexually dangerous
person and as a sexual psychopathic personality, because he has not met
his burden of proving a less-restrictive placement is appropriate or
available, and because he has not demonstrated that his commitment is
unconstitutional, we affirm.

= = = =

A06-90

In the Matter of the Civil Commitment of:
Michael Dean Waller.

LANSING, Judge
In this appeal from an order for civil commitment as mentally ill and
dangerous, Michael Waller asserts that the district court clearly erred
by finding that he set a fire and by finding that clear and convincing
evidence establishes that he attempted to cause serious physical harm to
another. Because we discern no error in either of the district court's
findings, we affirm Waller's commitment as mentally ill and dangerous.
 

 
 
 

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