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minn/10592270.json

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+"{\"id\": \"10592270\", \"name\": \"LEWIS & HARRIS, a Partnership, Petitioner, Relator, v. COUNTY OF HENNEPIN, Respondent\", \"name_abbreviation\": \"Lewis & Harris v. County of Hennepin\", \"decision_date\": \"1994-05-13\", \"docket_number\": \"No. CO-93-1195\", \"first_page\": \"177\", \"last_page\": \"180\", \"citations\": \"516 N.W.2d 177\", \"volume\": \"516\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T02:23:23.472000+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LEWIS & HARRIS, a Partnership, Petitioner, Relator, v. COUNTY OF HENNEPIN, Respondent.\", \"head_matter\": \"LEWIS & HARRIS, a Partnership, Petitioner, Relator, v. COUNTY OF HENNEPIN, Respondent.\\nNo. CO-93-1195.\\nSupreme Court of Minnesota.\\nMay 13, 1994.\\nThomas R. Wilhelmy, James E. Dorsey, Fredrikson & Byron, P.A., Minneapolis, for relator.\\nMichael 0. Freeman, Hennepin County Atty., Mark Kapter Maher, Asst. County Atty., Minneapolis, for respondent.\", \"word_count\": \"1766\", \"char_count\": \"10992\", \"text\": \"OPINION\\nCOYNE-, Justice.\\nLewis & Harris, a partnership, challenged the 1990 assessed valuation of the partnership's commercial property at 4100 West 76th Street in Edina. The Hennepin County assessor's valuation was $1,170,000. The tax court declared the fair market value of the property was $1,150,000 and ordered the Hennepin County books and records changed to reflect that conclusion. Lewis & Harris moved for amended findings and conclusions or a new trial and, following denial of the post-trial motions, brought this appeal.\\nIn September 1987 the petitioner partnership composed of Terry Lewis and James S. Harris, III, two nationally known, Minneapolis-based music producers, purchased the subject property for $800,000 less an allowance of approximately $10,000 for roof repair. The one story structure, built as an office/warehouse in 1966, was being used as an office furniture showroom at the time of sale. Messrs. Harris and Lewis are also the sole shareholders of the production company, Flyte Tyme Productions, Inc. After acquiring the property, the partnership leased it to Flyte Tyme, which spent about $384,000 on leasehold improvements. Four studios were built, each with an adjacent control room. The other improvements comprised a copy and editing room, a kitchen, two lounges, restrooms, storage rooms and a refurbished office. Recorded performances take place in the studios, which are also called \\\"isolation booths\\\", while the engineer and producer oversee the recording process from the control room. With this renovated building, the Flyte Tyme Productions facility is regarded as a \\\"world class\\\" recording studio.\\nEssentially, the valuation dispute boils down to a difference of opinion among various appraisers. The partnership based its position primarily on the valuation prepared by Gary Battuello, a partner in a real estate appraisal and consulting firm, and on the method he employed in his appraisal. The county, on the other hand, relied chiefly on the value fixed by Moreau Sankey, an appraiser employed in the office of the City of Edina Assessor.\\nThis court has on various occasions recognized the three basic approaches to determining the market value of real estate:\\n1. Market data \\u2014 an appraisal based on prices paid in actual market transactions involving comparable properties;\\n2. Income \\u2014 a value estimate predicated on the capitalization of the rental income which a lease could be expected to produce;\\n3. Cost \\u2014 a valuation founded on the proposition that an informed buyer would pay no more for the property than the cost of constructing new property having the same utility as the subject property.\\nSee, e.g., Federal Reserve Bank of Minneapolis v. County of Hennepin, 372 N.W.2d 699, 700 (Minn.1985). The partnership urges recognition of the \\\"superiority of the market approach\\\" recommended by Mr. Battuello. Having concluded that the highest and best use of the Lewis & Harris property was use as an offiee/warehouse, Battuello testified that four nearby office and warehouse buildings had been sold for prices ranging from $24.69 to $41.81 per square foot. He then testified to the 1980s market price of five production facilities, whose highest and best use he described as media production studios: a studio at 25th Street and 27th Avenue, $32.33 per square foot; a studio at 2543 Nicollet Avenue, $31.60 per square foot; Flyte Tyme's former studio at 4330 Nicollet, $42.65 per square foot; a video production facility in Edina, next door to the subject property, $56.60 per square foot; and KTCA's former video studios on Como Avenue in St. Paul, $21.77 per square foot. After adjusting for the differing times of sale and variations in buildings and locations, Mr. Battuello concluded that the market value of these properties, which he considered comparable to the subject property, was slightly under $39.00 per square foot in January 1990. It was Mr. Battuello's opinion that the market does not recognize any measurable contribution to value because of the sound recording improvement. Mr. Battuello then estimated the market value of the Lewis & Harris building at $40.00 per square foot, yielding an overall value of $670,000.\\nBased on a market value of $3 to $4 per square foot for the land and a replacement cost of $40 per square foot for a Class C distribution warehouse, Mr. Battuello's cost approach estimate as of January 1990, after considering depreciation, was $760,000.\\nUsing a capitalization rate of 10.5 percent, Mr. Battuello's income approach valuation was $530,000. He discounted the reliability of the income method because properties of the kind at issue are not often financed by investors, and he relied primarily on comparable sales to arrive at his final estimate of $670,000 as of January 1990.\\nThe county's appraiser, on the other hand, relied most heavily on the cost approach, estimated the depreciated cost of the building at $892,124 and the land value at $450,-000, and gave it as his judgment that the property had a total market value of $1,300,-000 on January 2, 1990.\\nMr. Sankey determined the land value by market data approach with consideration given to three sales of vacant land. Mr. Sankey gave the greatest weight to the 1987 sale of a 90 + acre parcel at 76th and France Avenue, about one block east of the subject property. Although he discussed three sales of recording studios and the sale of the video studio adjacent to the subject property, Mr. Sankey concluded that the sales of the studios at 4330 and 2543 Nicollet and at 2501 27th Avenue either were not sales of comparable properties or were not arms-length transactions which reflected actual market value. In his appraisal report Mr. Sankey pointed out that there are more than 40 recording studios listed in the telephone directory but that a drive-by inspection convinced him that they were not comparable. He thought his observation was supported by the buyer of the studio at 2543 Nicollet Avenue, who told Sankey that there were only three top quality recording studios in the area \\u2014 Prince's Paisley Park, Flyte Tyme and his own studio \\u2014 and that each of the three were involved in different facets of the recording industry. Because Mr. Sankey was of the opinion that only the sale of the next door video studio could be considered a comparable sale, he gave his market data valuation of $1,070,000 only nominal weight.\\nBecause Messrs. Lewis and Harris are both the only partners of the partnership which is the owner-lessor of the property and the sole shareholders of the tenant production company and because the few recording studio leases in existence are usually between related parties, Mr. Sankey deemed any information about rental income too unreliable to permit development of a market value based on an income approach.\\nBecause of the absence of market data and of reliable income data and because of the high degree of specialization in the recording industry, Mr. Sankey was of the opinion that the subject property is a special purpose property. In conclusion, Mr. Sankey gave the depreciated replacement cost approach the greatest weight with some consideration for the one sale of comparable property \\u2014 the next door video studio \\u2014 and arrived at a value of $1,300,000.\\nThe tax court judge recognized that market data approach is ordinarily the preferable approach to the valuation of owner-occupied properties, but she accorded market data little weight in this case. Judge Doar considered the highest and best use of the property on the assessment date was as an office and recording studio, and, therefore, disregarded office/warehouse sales. She rejected Mr. Battuello's analysis of the sale of the next-door video production studio as insufficient to support his conclusion that the market does not recognize a measurable contribution to value by the sound recording studios. She agreed with Mr. Sankey that only one of the three recording studio sales could be regarded as comparable \\u2014 the studio vacated by Flyte Tyme when it moved to the subject property.\\nAccordingly, valuation based on market data could be derived from only a single sale. Because of this very limited market data and almost non-existent data concerning income generated by arms-length lease arrangement, Judge Doar regarded the cost approach as the most reliable.\\nRejecting the partnership's contention that the recording studios are equipment, not real estate, Judge Doar found that the studios are integrated with and permanently affixed to the building and are, therefore, part of the real estate.\\nBased on Mr. Sankey's depreciated replacement cost as of January 2, 1990, together with the land value estimates presented by both appraisers, Judge Doar arrived at a depreciated replacement cost of $1,200,000. Giving some, but minimal, weight to the value based on market data, the tax court declared the value of the property on January 2, 1990 to be $1,150,000.\\nBecause of the continual rapid change in recording technology, it is no doubt accurate to say that the useful life of the recording studios is somewhat shorter than that of the building to which they are affixed. That it is advantageous for income tax purposes to depreciate them as equipment does not alter their essential character. They are affixed to and integrated with the building. They are leasehold improvements which will stay with the building and become the property of the lessor on expiration of the lease term, just as the studios were sold as a part of the real property in each recording studio sale included in the market data used here. The tax court properly included the studios in the estimated market value of the subject property.\\nWith respect to the propriety of placing greater weight on the replacement cost approach, according the market data approach minimal weight, and of considering the income approach not at all helpful, we note that, at best, appraisal is an inexact value determination. It must be conceded, we believe, that an appraisal is an estimate of value. That is the reason for the development of three approaches to value. Viewing value from three different perspectives may help the appraiser arrive at an estimate closer to actual market value than if the property were viewed from a single perspective. Whatever weight priority may usually attach to each approach, the priority and quantum of reliance depends on the facts of each case. It seems to us that in this case the market data approach left a good deal to be desired and that the tax court cannot be faulted for giving it minimal weight while relying primarily on the replacement cost approach.\\nAffirmed.\"}"

minn/10597324.json

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+"{\"id\": \"10597324\", \"name\": \"Jeffrey Robert SCHOER, Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY, Appellant\", \"name_abbreviation\": \"Schoer v. West Bend Mutual Insurance Co.\", \"decision_date\": \"1991-07-09\", \"docket_number\": \"No. C8-90-2404\", \"first_page\": \"73\", \"last_page\": \"77\", \"citations\": \"473 N.W.2d 73\", \"volume\": \"473\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:12:14.718453+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by PARKER, P.J., and NORTON, and SCHUMACHER, JJ.\", \"parties\": \"Jeffrey Robert SCHOER, Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY, Appellant.\", \"head_matter\": \"Jeffrey Robert SCHOER, Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY, Appellant.\\nNo. C8-90-2404.\\nCourt of Appeals of Minnesota.\\nJuly 9, 1991.\\nJames E. Malters Von Holtum, Malters & Shepherd, Worthington, for Jeffrey Robert Schoer, respondent.\\nPaul T. Eidsness Moss & Barnett, Minneapolis, West Bend Mut. Ins. Co., appellant.\\nConsidered and decided by PARKER, P.J., and NORTON, and SCHUMACHER, JJ.\", \"word_count\": \"1816\", \"char_count\": \"11224\", \"text\": \"OPINION\\nNORTON, Judge.\\nAppellant, West Bend Mutual Insurance Company (West Bend), seeks review of judgment declaring respondent, Jeffrey Robert Schoer, a resident of his mother's household under her automobile insurance policy issued in Wisconsin.\\nFACTS\\nSchoer was injured in a single vehicle accident while riding as a passenger in an automobile near Waseca, Minnesota on August 25, 1988. He received a partial recovery for his injuries from the driver's automobile insurance carrier. Because Schoer did not have his own automobile insurance policy, he sought underinsured motorist benefits from his mother's policy issued by West Bend. West Bend denied coverage saying that Schoer was not living with his mother, Ruth Ann Schoer, in her home in Stevens Point, Wisconsin as required under the terms of the policy.\\nSince 1984, when his parents divorced and he left high school, Schoer has spent a considerable amount of time away from his mother's home. He would live with his mother and work in Wisconsin for a few months and then stay with his father or friends and work in Minnesota for a few months. He also stayed, periodically for a year, with a girlfriend with whom he had a child. However, he frequently went home to his mother. Schoer lived out of a suitcase when he was away from his mother's home. At the time of the accident, Schoer had completed his first year as a student at Southwest Technical Institute and was living in Jackson, Minnesota.\\nISSUES\\n1. Are the legal issues raised in West Bend's motion for summary judgment properly before this court on appeal?\\n2. Does Minnesota statute section 65B.50 require that the nonresident West Bend insured vehicle be present in Minnesota at the time of the accident giving rise to Schoer's claim?\\n3. Does the evidence support the jury's finding that Schoer was a resident of his mother's household?\\n4. Should the limit of underinsured coverage be the statutory minimum rather than as stated in the policy?\\nANALYSIS\\nI.\\nOn appeal from a judgment, this court may review any order involving the merits or affecting the judgment. Minn.R.Civ.App.P. 103.04. Although an order denying summary judgment is not appeal-able, it may be reviewed as part of an appealable judgment. Peterson v. Brown, 457 N.W.2d 745, 748 (Minn.App.1990), pet. for rev. denied (Minn. Aug. 23, 1990).\\nIn this case, West Bend's motion for summary judgment was denied. West Bend properly appealed from judgment for Schoer. Therefore, the issues raised in the summary judgment motion are reviewable in this appeal.\\nII.\\nBoth parties agree that Minnesota law is controlling in this case. Construction of the Minnesota no-fault automobile insurance act is a question of law and is subject to de novo review on appeal. Doe v. State Bd. of Medical Examiners, 435 N.W.2d 45, 48 (Minn.1989).\\nWest Bend contends that Ruth Ann Schoer's nonresident automobile insurance policy should be interpreted under Minn. Stat. \\u00a7 65B.50 (1988) which states in pertinent part:\\nSubdivision 1. Every insurer licensed to write motor vehicle accident reparation and liability insurance in this state shall afford at least the minimum security provided by section 65B.49 to all policy holders, except that in the case of nonresident policyholders it need only certify that security is provided with respect to accidents occurring in this state.\\nSubd. 2. Notwithstanding any contrary provision in it, every contract of liability insurance for injury, wherever issued, covering obligations arising from ownership, maintenance, or use of a motor vehicle includes basic economic loss benefit coverages and residual liability coverages while the vehicle is in this state .\\nWest Bend concludes that the insured vehicle would have to be in Minnesota at the time of Schoer's accident before West Bend is required to extend underinsured coverage to Schoer.\\nSection 65B.50 imposes underin-sured liability coverage in a nonresident's automobile insurance policy issued by an out-of-state insurer, licensed to do business in Minnesota, where there is no provision for coverage already existing in the policy. See Western Nat'l Mut. Ins. Co. v. State Farm Ins. Co., 374 N.W.2d 441, 445 (Minn.1985). Subdivision 1 requires that insurers licensed in Minnesota provide the minimum coverage mandated by the act or in the case of nonresident policyholders, certification of the same with respect to accidents occurring in this state. Subdivision 2 requires that a covered nonresident vehicle be in Minnesota at the time of an accident giving rise to a nonresident's claim before liability can be imposed on the nonresident's insurer. See id.\\nIn this case, underinsured coverage does not need to be imposed by section 65B.50 because it is already written into the West Bend insurance policy and premiums were paid for the coverage. See id. at 442 (where nonresident insured paid no premiums for no-fault coverage, coverage is imposed under 65B.50 if insured vehicle is in state at time of accident). Therefore, section 65B.50 does not apply under the facts of this case and the West Bend insured vehicle was not required to be in Minnesota at the time of the accident to extend coverage to Schoer.\\nIII.\\nWhether Schoer was a resident of his mother's household at the time of the accident is a fact question. See Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 55, 142 N.W.2d 299, 300 (1966). On appeal, the jury's verdict that Schoer is a resident of his mother's household must be upheld unless it is manifestly and palpably contrary to the weight of the evidence when considered in the light most favorable to the prevailing party. See Flom v. Flom, 291 N.W.2d 914, 916 (Minn.1980).\\nWest Bend argues that Schoer is not insured because he was not living with his mother at the time of the accident. The terms of her nonresident policy stated that a relative must be living with the named insured to be included under the insurance coverage.\\nAn insured under the Minnesota no-fault automobile insurance act includes:\\npersons not identified by name as an insured while residing in the same household with the named insured .\\n* #\\n(2)other relative of a named insured\\n\\u215d * # * % *\\nA person resides in the same household with the named insured if that person's home is usually in the same family unit, even though temporarily living elsewhere.\\nMinn.Stat. \\u00a7 65B.43, subd. 5 (1988). There are three factors which determine residency in the named insurer's household:\\n(1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship \\\" in contracting about such matters as insurance or in their conduct in reliance thereon.\\\"\\nFireman's Ins. Co. v. Viktora, 318 N.W.2d 704, 706 (Minn.1982) (quoting Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 37, 197 N.W.2d 783, 789 (1972) (citations omitted)). The factfinder considers:\\n(1) age of the person;\\n(2) whether a separate residence is established;\\n(3) self-sufficiency of the person;\\n(4) frequency and the duration of the stay in the family home; and\\n(5) intent to return.\\nWood v. Mutual Serv. Casualty Ins. Co., 415 N.W.2d 748, 750 (Minn.App.1987), pet. for rev. denied (Minn. Feb. 12, 1988). Personal possessions remaining in the home and that the home continues to be the mailing address may be considered but are not dispositive. Id. at 751. A determination of residency in a household is fact specific to each case. Id. at 750.\\nSchoer's age of 21 years at the time of the accident does not preclude him as a resident of his mother's household. See Skarsten v. Dairyland Ins. Co., 381 N.W.2d 16 (Minn.App.1986), pet. for rev. denied (Minn. Mar. 27, 1986) (24-year-old college student was resident of parents' household); Morgan v. Illinois Farmers Ins. Co., 392 N.W.2d 37 (Minn.App.1986), pet. for rev. denied (Minn. Oct. 22, 1986) (21-year-old college student was resident of parents' household). Although Schoer lived in Jackson when attending school, he returned home as often as possible and did not establish a permanent residence separate from his mother's household. See Skarsten, 381 N.W.2d at 17 (daughter lived at college and in past had established residency in California for school tuition purposes). Additionally, Schoer was not totally self sufficient. He received financial support when needed from his mother.\\nFinally, Schoer returned home as often as possible. He frequently went home on weekends and holidays whenever a ride was available. In his post high school years, Schoer lived in many different places for short periods of time, but would spend time at home, including a few months at a time. He considered his mother's home as his permanent residence. See id. at 19 (daughter's absence from home was of a temporary nature because she intended to return if only for weekends and holidays and considered the home to be her permanent residence). Schoer also stayed with his mother for several weeks while recuperating from his injuries. See Morgan, 392 N.W.2d at 39 (daughter staying with parents for several weeks while recuperating from injuries resulting from accident is one indicator of her being a resident of parents' household).\\nThis case is distinguishable from college student cases where the students were self-supporting and did not intend to return to their parents' residences following college. See Van Overbeke v. State Farm Mut. Auto. Ins. Co., 303 Minn. 387, 389, 227 N.W.2d 807, 810 (1975); Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 56-57, 142 N.W.2d 299, 301 (1966).\\nBecause this court does not substitute its views for those of the jury, we cannot say that the jury finding was contrary to the weight of the evidence when considered in a light favorable to Schoer.\\nIV.\\nWhen a court imposes insurance coverage on parties by law rather than by contract, the only coverage imposed is the statutory minimum. State Farm Mut. Auto. Ins. Co. v. Feldman, 359 N.W.2d 57, 59 (Minn.App.1984). In this case, West Bend and Ruth Ann Schoer contracted for underinsured motorist coverage up to a limit of $100,000. Coverage was not imposed by law. Schoer is entitled to coverage up to $100,000.\\nDECISION\\nMinnesota Statutes section 65B.50 does not apply under the facts of this case where underinsured liability coverage was written into the West Bend automobile insurance policy and premiums were paid for the coverage. The evidence sustains the jury finding that Schoer was an insured under his mother's insurance policy at the time of the accident. Therefore, he is entitled to underinsured coverage up to the policy limits for his injuries.\\nAffirmed.\"}"

minn/10611997.json

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+"{\"id\": \"10611997\", \"name\": \"In Re the Marriage of Marjorie Ann PETTIT, Petitioner, Appellant, v. Donald A. PETTIT, Respondent\", \"name_abbreviation\": \"Marriage of Pettit v. Pettit\", \"decision_date\": \"1991-07-02\", \"docket_number\": \"No. CX-90-2453\", \"first_page\": \"668\", \"last_page\": \"671\", \"citations\": \"472 N.W.2d 668\", \"volume\": \"472\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:06:43.135036+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by FOLEY, P.J., HUSPENI and MULALLY, JJ.\", \"parties\": \"In Re the Marriage of Marjorie Ann PETTIT, Petitioner, Appellant, v. Donald A. PETTIT, Respondent.\", \"head_matter\": \"In Re the Marriage of Marjorie Ann PETTIT, Petitioner, Appellant, v. Donald A. PETTIT, Respondent.\\nNo. CX-90-2453.\\nCourt of Appeals of Minnesota.\\nJuly 2, 1991.\\nBrian M. Olsen, Cokato, for appellant.\\nSharon L. Hall, Barna, Guzy & Steffen, Ltd., Minneapolis, for respondent.\\nConsidered and decided by FOLEY, P.J., HUSPENI and MULALLY, JJ.\\nRetired judge of the district court, acting as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 2.\", \"word_count\": \"1267\", \"char_count\": \"7571\", \"text\": \"OPINION\\nFOLEY, Judge.\\nIn this marital dissolution matter, challenge is made to the trial court's conclusions of law regarding whether property was marital or nonmarital, its division of certain of the parties' assets, and its failure to award permanent maintenance. We affirm in part, reverse in part and remand.\\nFACTS\\nAppellant Marjorie Ann Pettit and respondent Donald A. Pettit were married on June 28, 1952. They had four children, all of whom are now emancipated. The parties farmed for most of the marriage. Their farm was unencumbered at the time of the divorce.\\nAfter a trial, the marriage was dissolved by entry of a judgment and decree on Sep tember 6, 1990. Marjorie appeals the trial court's denial of her motions for amended conclusions of law or a new trial.\\nISSUES\\n1. Did the trial court err in its conclusions of law regarding whether property was marital or nonmarital?\\n2. Did the trial court err in its division of certain of the parties' assets?\\n3. Did the trial court err in not awarding permanent maintenance to Marjorie?\\nANALYSIS\\n1. Marjorie challenges the trial court's conclusions of law regarding whether Donald had a nonmarital interest in the parties' farm equal to his payment of a debt with inherited funds, whether a $6,000 loan was a marital debt and whether Marjorie has a nonmarital interest in a lawnmower purchased with money she received in settlement of a personal injury claim.\\nThe characterization of a type of property as marital or nonmarital is a question of law upon which an appellate court may exercise independent judgment. Van de Loo v. Van de Loo, 346 N.W.2d 173, 175 (Minn.Ct.App.1984). The trial court, however, has broad discretion in the determination of underlying facts, and those findings of fact will be affirmed unless they are manifestly and palpably contrary to the evidence as a whole. Kucera v. Kucera, 275 Minn. 252, 254-55, 146 N.W.2d 181, 183 (1966).\\nCampion v. Campion, 385 N.W.2d 1, 4 (Minn.App.1986).\\nProperty acquired during a marriage is presumed to be marital. Minn.Stat. \\u00a7 518.-54, subd. 5 (1990).\\n\\\"Nonmarital property\\\" means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which\\n(a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;\\n#\\n(c) is acquired in exchange for property which is described in clauses (a), (b), (d), and (e);\\nId.\\nHere, the trial court found Donald's inheritance was nonmarital property and that $20,130 of the inheritance had been used to pay a \\\"farm indebtedness.\\\" The trial court gave Donald a lien on the parties' homestead for $20,130.\\nWe agree with Donald that the payment of the loan is readily traceable to the inheritance. See Kottke v. Kottke, 353 N.W.2d 633, 636 (Minn.App.1984) (if asset is readily traceable to inheritance, it is non-marital), pet. for rev. denied (Minn. Dec. 20, 1984). Donald, however, has not shown he acquired any property with the $20,130. See Minn.Stat. \\u00a7 518.54, subd. 5(c).\\nFor that reason, Donald's reliance on Kottke is misplaced. The nonmarital funds in Kottke did pass through a joint account and pay off a joint debt, but the debt was incurred with the understanding that it would be repaid with an expected inheritance. Kottke, 353 N.W.2d at 636. More importantly, the loan was used to acquire property, a home. Id.\\nHere, Donald offered no evidence at trial to show the bank loan was secured by any of the parties' property and makes no such argument on appeal. Therefore, his payment of the loan cannot be said to have given him an interest in any property given as security for the loan.\\nThe trial court found the loan was used for the farming business. The trial court did not find, however, that property was acquired with the loan. Nor did the trial court find that Donald acquired an interest in any property by paying off the loan.\\nWithout the acquisition of property, there was no \\\"exchange\\\" as required by Minn.Stat. \\u00a7 518.54, subd. 5(c). Donald could not, therefore, acquire a nonmarital interest in the farm. Accordingly, on remand, the trial court is instructed to quash the $20,130 lien in Donald's favor on the farm.\\nBecause we have found the trial court erred in concluding Donald had a nonmari- tal interest in the farm, we do not reach whether the trial court should have invaded that nonmarital interest under Minn.Stat. \\u00a7 518.58, subd. 2 (1990).\\nThe trial court did not err in concluding the $6,000 Donald borrowed during the marriage to pay taxes was a marital debt. The record is clear that the debt was incurred during the marriage.\\nNor did the trial court err in failing to award Marjorie as nonmarital property a lawnmower she testified was purchased with a personal injury settlement. Marjorie did not ask for the award when she submitted her proposed findings after the trial. Additionally, Marjorie did not\\nproduce demonstrable proof that the amount of the recovery was awarded for [her] personal injuries and not for replacement of property marital in nature. Absent such proof, the proceeds recovered for any injury occurring during the marriage will all be treated as marital property.\\nVan de Loo v. Van de Loo, 346 N.W.2d 173, 177 (Minn.App.1984).\\n2. There is no merit to Marjorie's claim the trial court erred in not awarding her the parties' household goods. Marjorie stipulated on the record that the household goods would be appraised and sold and the proceeds divided between the parties. Marjorie argues the trial court erred in failing to specify the marital farm equipment to be sold. On the record before us, we find no error.\\nIt does appear, however, that the trial court inadvertently failed to order that the parties share equally in patronage dividends and set-aside funds. On remand, the trial court is instructed to order that Marjorie is entitled to one-half of all patronage dividends and set-aside payments arising from the operation of the farm during the marriage.\\n3. The trial court ordered Donald to pay $12,000 to Marjorie as lump sum spousal maintenance. Marjorie contends the trial court erred in not giving her permanent maintenance.\\nNo abuse of the trial court's broad discretion in determining spousal maintenance will be found if the trial court's decision has a reasonable and acceptable basis in fact. Cisek v. Cisek, 409 N.W.2d 233, 235 (Minn.App.1987), pet. for rev. denied (Minn. Sept. 18,1987). We find no abuse of discretion. The trial court's finding that Donald's age and physical condition make it likely he will not have income to pay maintenance in the future is not clearly erroneous. Furthermore, in light of our holding that Donald does not have a nonmarital interest in the farm, the parties have been left in substantially equal positions.\\nIn the interests of justice, however, we believe Marjorie should have a lien on the parties' homestead for the $12,000 in maintenance. On remand, the trial court is to place such a lien on the homestead and amend the judgment to provide for the lien.\\nDECISION\\nAffirmed in part, reversed in part and remanded.\"}"

minn/10639501.json

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+"{\"id\": \"10639501\", \"name\": \"YELLOWBIRD, INC., Relator, v. MSP EXPRESS, INC., Minnesota Transportation Regulation Board, Respondents\", \"name_abbreviation\": \"Yellowbird, Inc. v. MSP Express, Inc.\", \"decision_date\": \"1985-11-26\", \"docket_number\": \"No. C3-85-1243\", \"first_page\": \"490\", \"last_page\": \"494\", \"citations\": \"377 N.W.2d 490\", \"volume\": \"377\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:13:58.671382+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by CRIP-PEN, P.J., and FOLEY and WOZNIAK, JJ.\", \"parties\": \"YELLOWBIRD, INC., Relator, v. MSP EXPRESS, INC., Minnesota Transportation Regulation Board, Respondents.\", \"head_matter\": \"YELLOWBIRD, INC., Relator, v. MSP EXPRESS, INC., Minnesota Transportation Regulation Board, Respondents.\\nNo. C3-85-1243.\\nCourt of Appeals of Minnesota.\\nNov. 26, 1985.\\nMichael J. Pitton, St. Paul, for relator.\\nStanley C. Olsen, Jr., Minneapolis, Hubert H. Humphrey, III, Atty. Gen., Craig R. Anderson, Asst. Atty. Gen., St. Paul, for respondents.\\nHeard, considered, and decided by CRIP-PEN, P.J., and FOLEY and WOZNIAK, JJ.\", \"word_count\": \"2046\", \"char_count\": \"13041\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nYellowbird, Inc. appeals from an order of the Minnesota Transportation Regulation Board granting MSP Express, Inc.'s petition for a certificate of public convenience and necessity as a regular route common carrier of passengers and their baggage between the Minneapolis-St. Paul International Airport and Burnsville, Savage, Shakopee, Faribault and Owatonna. Yel-lowbird contends that the Board's decision is arbitrary and capricious, is not supported by substantial evidence, and is based upon unlawful procedure. We reverse and remand.\\nFACTS\\nIn May 1984 James and Nancy Gardner, doing business as MSP Express, filed a petition for regular route common carrier permit authority to transport passengers between the Minneapolis-St. Paul International Airport and Burnsville, Savage, Shakopee, Hastings, Red Wing, Faribault and Owatonna. The Gardners then asked that the petition be amended to reflect their plans to operate as a corporation.\\nThe Gardners proposed to operate regularly scheduled routes between the airport and three sets of southern Minnesota communities. The first route begins at Shako-pee and stops at Savage and Burnsville before reaching the airport. Shakopee is 22 miles from the airport. The second route begins at Red Wing and stops at Hastings. Red Wing is 47 miles from the airport. The third route begins at Owaton-na and stops at Faribault. Owatonna is 60 miles from the airport. Each route has a return schedule. Three round trips are scheduled for each week day. The proposed weekend service was more limited.\\nYellowbird filed a protest. A hearing was held in October 1984.\\nJames Gardner testified that after the petition was filed MSP began carrying interstate passengers anywhere within 25 miles of the airport because Gardner believed the service fell within an interstate exception to current regulations. Between July 15 and July 31,1984, MSP operated on the scheduled routes between the airport and Shakopee. After July 31, MSP abandoned its regularly scheduled Shakopee airport route and began taking passengers back and forth anywhere south and west of the airport as long as either the destination or pickup point was within a 25-mile radius of the airport. During August MSP transported 73 passengers and in September it transported 167 passengers. In the first 10 days of October, it transported 101 passengers and by the end of the month had transported 269 \\\"fares.\\\"\\nMSP Express has been losing money since it began operations. After the company acquires a third van, which Gardner believes is the minimum number for the service proposed, Gardner estimates that between 700 and 800 passengers per month will be needed in order for the enterprise to break even.\\nAt the time of the hearing, Gardner had one van which had met safety standards. A second van was scheduled for delivery and had not been inspected. The Gardners filed a financial statement as equal partners doing business as MSP Express, but never prepared a financial statement for the corporate entity even though the administrative law judge requested one.\\nThe president of Northstar Travel Service, which has offices in Owatonna, testified that Jefferson Bus Lines is the only regular route common carrier which serves passengers traveling from Owatonna to the airport and, in his opinion, a regularly scheduled van or limousine service is needed for travelers for that route.\\nAn owner of First World Travel in Burnsville testified that his office arranges travel for several hundred people per month and a significant number require transportation between Burnsville and the airport. In his opinion, there is a need for moving small charter groups from Burns-ville to the airport in vans or limousines because these groups now travel in charter buses which are often half empty.\\nThe manager of Howard Johnson's Motor Lodge in Burnsville testified than many of the lodge's guests use MSP because it is more convenient than the lodge's complimentary service. Minneapolis and Suburban Airport Limousine Service has the authority to transport passengers between the lodge and the airport on a regularly scheduled basis but does so on a \\\"reservation only\\\" basis.\\nA Savage resident who makes up to three trips a year from the airport testified that there is no regular route passenger service between Savage and the airport and she 'intends to use MSP's services. A Shakopee resident who makes 20-24 trips a year from the airport testified that MSP is the only regularly scheduled service between Shakopee and the airport. A Fari-bault resident who makes at least two trips to the airport each year testified that the Jefferson Bus Lines service is very inconvenient.\\nA co-owner of Suburban Taxi, which operates in the suburbs south and west of the airport, is also a consultant to transportation services. He testified that MSP does not have enough vehicles to operate its proposed schedule and that'the Gardners' projected operating costs are grossly underestimated. Suburban Taxi serves the area proposed for service by MSP with 36 taxis. Some carry as many as nine passengers. The co-owner also testified that (1) there are also two limousine services offering charter service for Savage and Burns-ville; (2) at least six other taxi companies have unexercised authority to serve those areas; (3) Shakopee and Hastings are served by two bus lines, two taxi companies and MTL's Dial-A-Ride service; and (4) Faribault and Owatonna are served by two limousines, a local taxi company and Jefferson Bus Lines.\\nThe general manager of Minneapolis and Suburban Airport Limousine Service testified that his company operates 29 large vans. It has authority to serve the Howard Johnson's Lodge in Burnsville on a regular route basis. It also has charter authority to operate from the airport to all points in Minnesota. The manager believes that MSP badly underestimated costs and it will need seven vans to operate its proposed schedules.\\nYellowbird has statewide charter authority and frequently runs charters to areas sought to be served by MSP. The president of Yellowbird agrees that, for the reasons given by other owners and managers, MSP's cost estimates are far too low and that it will need seven vans to operate its proposed schedules.\\nThe administrative law judge concluded that (1) all of the regular route passenger transportation services applied for are within the jurisdiction of the Transportation Regulation Board; (2) MSP is not fit and able to provide all the proposed services; (3) it is fit and able to perform regular route common carrier passenger service between Burnsville and Savage and the airport; (4) its vehicle which began operation on July 15, 1984 meets the prescribed safe ty standards, but the record offers no basis for making any conclusions with regard to any other vehicle; (5) petitioner proved a need for the service to Burnsville and Savage, but failed to establish a need for service for any other communities which it proposed to serve; and (6) Yellowbird failed to prove that existing permit and certified carriers offer sufficient transportation services to meet the needs of Burns-ville and Savage for regular route passenger service to and from the airport.\\nThe administrative law judge recommended that the petition for a certificate of public convenience and necessity as a regular route common carrier of passengers between Burnsville, Savage and the airport be granted to James Gardner and Nancy Gardner, doing business as MSP, but that the remainder of the petition be denied.\\nOn June 5 the Board issued an order granting MSP, Incorporated a certificate of public convenience and necessity as a regular route common carrier of passengers between the airport and Burnsville, Savage, Shakopee, Faribault and Owatonna. The Board made no findings of fact and rejected the administrative law judge's findings.\\nYellowbird appeals. MSP neither filed a brief nor appeared at oral argument.\\nISSUE\\nWas the Board's decision arbitrary or made upon unlawful procedure?\\nANALYSIS\\nAfter petitioning for a regular route common carrier permit, MSP began operating within a 25-mile radius of the airport. In doing so, the Gardners relied upon 49 U.S.C. \\u00a7 10526(a)(8) (1984) which provides that the Interstate Commerce Commission does not have jurisdiction over \\\"transportation of passengers by motor vehicle incidental to transportation by aircraft.\\\" Thus, while it was operating without a permit, MSP was essentially assuming that neither the Interstate Commerce Commission nor the Minnesota Transportation Board had jurisdiction to regulate its transportation service. The administrative law judge found that all of the regular route transportation services applied for by MSP are within the Board's jurisdiction. The Board assumed jurisdiction. Yellowbird initially rebuts possible arguments that MSP might make with regard to the Board assuming jurisdiction over its petition. Since MSP does not now challenge the Board's jurisdiction, we need not consider the issue.\\nJudicial review of an administrative agency decision in a contested case is governed by the Administrative Procedures Act, Minn.Stat. \\u00a7 14.63-.69 (1984). This court may reverse an agency's decision if we find it is arbitrary and capricious, made upon unlawful procedure, or affected by other errors of law. Minn.Stat. \\u00a7 14.69 (1984). We adhere to the \\\"fundamental concept that decisions of administrative agencies enjoy a presumption of correctness \\\" but:\\n[WJhere there is a combination of danger signals which suggest the agency has not taken a \\\"hard look\\\" at the salient problems and \\\"has not genuinely engaged in reasoned decisionmaking\\\" it is the duty of the court to intervene.\\nReserve Mining Co. v. Herbst, 256 N.W.2d 808, 824-25 (Minn.1977) (citing Greater Boston Television Corp. v. Federal Communications Commission, 444 F.2d 841, 851 (D.C.Cir.1971)). A combination of dangerous signals exists in this case.\\nEvery decision and order made by an agency must \\\"include the agency's findings of fact and conclusions on all material issues.\\\" Minn.Stat. \\u00a7 14.62, subd. 1 (1984). Contrary to the procedural requirements of the statute, the Board neither made findings of fact nor adopted those made by the administrative law judge. In the absence of findings, we are unable to determine whether substantial evidence supports the Board's findings, conclusions or decision.\\nWithout findings, the Board concluded that the administrative law judge erred by recommending denial of authority to serve Shakopee, Faribault and Owaton- na. The Board offered no reasonable explanation of why it rejected the administrative law judge's conclusion that petitioners had failed to establish a need for its service in Faribault, Owatonna and Shakopee. The Board merely cited part of a statutory section and summarily concluded that testimony supported the need for service. The Board ignored the administrative law judge's conclusion that petitioners were not fit and able to provide all of the proposed services, but were only fit and able to provide regular route common carrier passenger service between Burnsville and Savage and the airport. The Board also ignored the administrative law judge's finding that his findings, conclusions, and recommendations related only to the application made by the Gardners as equal partners doing business as MSP Express. The Board ordered that a certificate be granted to the corporation, not to the Gardners. The absence of a reasoned explanation, the lack of consideration of the statutory requirement that a provider be fit and able, and the decision to issue a certificate to the corporation are evidence of the Board's desire to exercise its will and not its judgment. See Beaty v. Minnesota Board of Teaching, 354 N.W.2d 466, 472 (Minn.Ct.App.1984).\\nThe Board acknowledges that Yel-lowbird requested oral argument before the Board after exceptions had been filed and states that it failed to notice the request. A decision in contested cases is not to be made until each party who is adversely affected has been given an opportunity to \\\"present argument to a majority of the officials who are to render the decision.\\\" Minn.Stat. \\u00a7 14.61 (1984). Again, the Board failed to follow statutory procedure, resulting in a \\\"lack of basic fairness\\\" in its decisionmaking process. See In re Haugen, 278 N.W.2d 75 (Minn.1979).\\nDECISION\\nThe Board's decision was both arbitrary and capricious and based upon unlawful procedure. We reverse and remand to give the Board an opportunity to follow proper procedure and to make a reasoned decision. Reversed and remanded.\"}"

minn/10654099.json

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+"{\"id\": \"10654099\", \"name\": \"Sylvester J. HOMMERDING, et al., Appellants, v. TRAVELERS INSURANCE COMPANY, Respondent\", \"name_abbreviation\": \"Hommerding v. Travelers Insurance Co.\", \"decision_date\": \"1986-09-23\", \"docket_number\": \"No. C8-86-762\", \"first_page\": \"389\", \"last_page\": \"391\", \"citations\": \"393 N.W.2d 389\", \"volume\": \"393\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:22:41.370743+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by LESLIE, P.J., and WOZNIAK and CRIPPEN, JJ.\", \"parties\": \"Sylvester J. HOMMERDING, et al., Appellants, v. TRAVELERS INSURANCE COMPANY, Respondent.\", \"head_matter\": \"Sylvester J. HOMMERDING, et al., Appellants, v. TRAVELERS INSURANCE COMPANY, Respondent.\\nNo. C8-86-762.\\nCourt of Appeals of Minnesota.\\nSept. 23, 1986.\\nJames A. Beitz, Valerie K. Werness, Hagerty & Candell, Minneapolis, for appellants.\\nJohn Remington Graham, Brainerd, for respondent.\\nHeard, considered, and decided by LESLIE, P.J., and WOZNIAK and CRIPPEN, JJ.\", \"word_count\": \"877\", \"char_count\": \"5768\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nAppellants Sylvester and Marion Hom-merding began a suit in district court to set aside the mortgage foreclosure instituted by respondent Travelers Insurance Company based on insufficient notice. The trial court granted Travelers' summary judgment. We affirm.\\nFACTS\\nThe Hommerdings owned and farmed about 615 acres of land in Steams County, and also owned residential property in the township of Wakefield. On June 11, 1976, Travelers loaned the Hommerdings $330,-000 for agricultural needs, secured by a first mortgage on the Hommerdings' agricultural property. On October 27, 1981, Travelers loaned the Hommerdings an additional $285,000, secured by a second mort gage on the Hommerdings' agricultural property.\\nSoon after the second agricultural loan, the Hommerdings defaulted on the notes. On September 21, 1982, the Hommerdings filed Chapter 11 bankruptcy proceedings in United States Bankruptcy Court, District of Minnesota, which automatically stayed any action to create or enforce any lien against the Hommerdings' property. On March 6, 1984, the bankruptcy court filed an order lifting that stay.\\nOn March 8, 1984, Travelers commenced foreclosure by advertisement under Minn. Stat. ch. 580 (1982 and Supp.1983). In accordance with Minn.Stat. \\u00a7 580.03, Travelers published the notice of mortgage foreclosure, and notified the Hommerdings and occupants of the foreclosed property of the foreclosure. The foreclosure sale was held on May 4, 1984, and Travelers bid on both mortgages.\\nOn October 4, 1984, the Hommerdings commenced suit in Steams County District Court alleging that Travelers failed to notify them they had 60 days from the date foreclosure notice was mailed in which to cure the default under Minn.Stat. \\u00a7 47.20, subd. 15 (Supp.1983).\\nRespondents claimed that the notice of right to cure default was necessary only when homestead property was being foreclosed and that the Hommerdings were not homesteading the foreclosed property. Travelers relied on the affidavit of Donald Ramler, the appraiser for Steams County, who stated that the Hommerdings homesteaded the residential property located in Wakefield Township from May 24, 1983 through May 4,1984. Ramler further stated that the Hommerdings' agricultural property, which secured Travelers' first and second mortgages, was not classified as homestead property during that period. The sheriff's affidavits of service of notice of foreclosure indicate that the Hommerd-ings did not reside in the foreclosed property, but resided in the Wakefield residential property. The sheriff's affidavits further indicate that he served Mike and Lori Hom-merding, appellants' son and daughter-in-law, who resided on the agricultural property.\\nThe trial court granted Travelers' motion for summary judgment based on the affidavit of Donald Ramler and found the requirements of Minn.Stat. \\u00a7 47.20 inapplicable to the foreclosed property. The Hom-merdings appeal from the grant of summary judgment.\\nISSUE\\nShould Travelers' notice of foreclosure have complied with Minn.Stat. \\u00a7 47.20, subd. 15, which requires notice to the borrower of a 60-day period to cure default?\\nANALYSIS\\nMinn.Stat. \\u00a7 47.20, as amended in 1983 and applicable to this action, provided:\\nSubd. 15. Notwithstanding the provisions of any other law to the contrary, any notice of default on homestead property as defined in section 583.02, mailed after May 24, 1983 and prior to May 1, 1984, shall indicate that the borrower has 60 days from the date the notice is mailed in which to cure the default.\\n1983 Minn. Laws ch. 215 \\u00a7 1 (current version at Minn.Stat. \\u00a7 47.20, subd. 15 (Supp. 1985)) (emphasis added).\\nChapter 215 defined \\\"homestead\\\" as \\\"residential or agricultural real estate, a portion or all of which is entitled to receive homestead credit under section 273.13, subdivision 15a.\\\" 1983 Minn. Laws ch. 215 \\u00a7 5 (current version at Minn.Stat. \\u00a7 583.02 (Supp.1985)). Section 273.13, subdivision 15a explains the process by which homestead credit is given. Minn.Stat. \\u00a7 273.13, subd. 15a (1982).\\nUnder these statutes, the Hommerd-ings were not entitled to notice of a 60-day period to cure default. First, the Hom-merdings were not receiving a homestead credit on the foreclosed properly from the time the foreclosure action was commenced until the sheriff's sale. The Steams County appraiser's statement that the foreclosed property was not classified as homestead during that period was undisputed.\\nSecond, the Hommerdings were not entitled to receive homestead credit on the foreclosed property during that period. The Hommerdings' agricultural property does not qualify as an exempt homestead. Minn.Stat. \\u00a7 510.01 (1982) defines an exempt homestead as \\\"[t]he house owned and occupied by a debtor as his dwelling place, together with the land upon which it is situated.\\\" The Hommerdings do not dispute that they did not occupy or reside in the foreclosed property. The legislature's use of \\\"the house\\\" in the singular indicates that a debtor may claim only one homestead.\\nUnder the clear wording of the notice and homestead exemption statutes, the Hommerdings' foreclosed property was not homestead property and was not entitled to the special notice provisions afforded to owners of homestead property under Minn. Stat. \\u00a7 47.20, subd. 15 (Supp.1983).\\nDECISION\\nThe trial court properly granted summary judgment in favor of Travelers.\\nAffirmed.\"}"

minn/10654251.json

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+"{\"id\": \"10654251\", \"name\": \"EMPORIUM OF JAZZ, et al., Respondents, McCarty Properties, et al., Respondents, v. CITY OF MENDOTA, Appellant\", \"name_abbreviation\": \"Emporium of Jazz v. City of Mendota\", \"decision_date\": \"1985-10-15\", \"docket_number\": \"No. CO-85-681\", \"first_page\": \"825\", \"last_page\": \"828\", \"citations\": \"374 N.W.2d 825\", \"volume\": \"374\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:25:15.020460+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered and decided by HUS-PENI, P.J., and RANDALL and CRIPPEN, JJ.\", \"parties\": \"EMPORIUM OF JAZZ, et al., Respondents, McCarty Properties, et al., Respondents, v. CITY OF MENDOTA, Appellant.\", \"head_matter\": \"EMPORIUM OF JAZZ, et al., Respondents, McCarty Properties, et al., Respondents, v. CITY OF MENDOTA, Appellant.\\nNo. CO-85-681.\\nCourt of Appeals of Minnesota.\\nOct. 15, 1985.\\nDaniel J. Beeson, South St. Paul, for Emporium of Jazz, et al.\\nArnold F. Kempe, West St. Paul, for McCarty Properties, et al.\\nMichael R. O\\u2019Brien, St. Paul, for appellant.\\nHeard, considered and decided by HUS-PENI, P.J., and RANDALL and CRIPPEN, JJ.\", \"word_count\": \"1331\", \"char_count\": \"8351\", \"text\": \"OPINION\\nRANDALL, Judge.\\nAppellant City of Mendota appeals from a judgment issued after the first half of a bifurcated trial. The trial court bifurcated a trial on certain assessments levied by the City of Mendota. The trial determined two separate issues: (1) whether the city's assessment method was constitutional and proper under Minn.Stat. \\u00a7 429.061 (1984) and (2) whether the specific assessments against respondents were in compliance with Minn.Stat. \\u00a7 429.061. Minn.Stat. \\u00a7 429.061 states that an assessment against a parcel of property may not exceed benefits to that property from the assessed improvements.\\nAfter granting appellant's motion to bifurcate, the court tried the first issue to conclusion and entered judgment finding that the sewer assessments method as to businesses along Highway 13 violated the equal protection clause of the U.S. constitution, the uniformity clause of the Minnesota constitution, and Minn.Stat. \\u00a7 429.-061.\\nWe vacate the court's judgment and remand for completion of the trial on the second issue. Upon completion of the entire trial, the court should then consider the constitutional issue.\\nFACTS\\nOn September 13, 1983, after approving installation of a new sewer system for the entire city of Mendota, the Mendota city council adopted a resolution containing an assessment roll against selected properties located on Highway 13 (\\\"downtown\\\") in Mendota. Downtown contains both residential and commercial properties.\\nThe city assessed downtown commercial properties for the lateral sanitary sewer and service lines running along Highway 13 and the lateral line connecting the downtown system to the rest of Mendota (\\\"low-ertown\\\"). Lowertown Mendota is geographically separate from downtown Men-dota.\\nThe rest of the sewer system was funded by federal and state grants. These grants, intended to benefit lower and middle income property, were used by the city to fund the lowertown portion of the system as well as the cost for the residences and two vacant lots located on Highway 13. The Metropolitan Waste Control Commission (MWCC) funded construction of the lift station and force main connecting the city's sanitary sewer to the metropolitan area sewer system.\\nThe city certified the assessment roll to the county auditor for inclusion on property tax statements. The assessment roll contained assessments only for the commercial properties on Highway 13 and vacant lots owned by the businesses on Highway 13. No other property was assessed.\\nAt trial respondents, the businesses located on Highway 13, challenged the constitutionality of the assessments and also contended that the city assessed them in excess of the benefits they received from the system, in violation of Minn.Stat. \\u00a7 429.061.\\nRespondents contend that the city determined the assessments by subtracting the total amount of grants received from the total cost of the sewer system. They claim the city divided the unfunded balance by the number of businesses and assessed each business accordingly. The city claims it charged the commercial property owners based on a formula of 50% for direct lateral benefit based on front footage and 50% as a sewer availability charge (SAC).\\nThe trial court granted the city's motion to bifurcate the trial and determine the legality of the assessment process before it determined the legality of each assessment. Following the first portion of the trial, the court determined that the assessment procedure violated the equal protection clause of the U.S. constitution, the uniformity clause of the state constitution and Minn. Stat. section 429.061, vacated the assessments, and ordered the city council to reassess the properties in accordance with state law. The city appeals from the trial court's judgment.\\nISSUE\\nDid the trial court err in vacating the assessment on constitutional grounds prior to a trial on the issue of the legality of the individual assessments?\\nANALYSIS\\nAt the outset we note the city appealed from a non-appealable order. The trial court entered a judgment after the first portion of the bifurcated trial. Following this appeal, the issue of the specific assessments to each commercial parcel of property still needs to be determined.\\nMinn.R.Civ.App.P. 104.01 allows a party to appeal only from a final judgment. Financial Relations Bd., Inc. v. Pawnee Corp., 308 Minn. 109, 112, 240 N.W.2d 565, 566 (1976). Minn.R.Civ.P. 54.02 provides for the entry of a final judgment as to less than all of the claims in multiparty litigation:\\nWhen multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.\\nHere the court did not make an express determination of no just reason for delay, nor did it expressly direct entry of judgment. The parties and the court intend to finish the trial after this appeal is completed. The judgment is not a final judgment, nor does it comply with the con ditions of Rule 54.02 for entry of a final judgment when fewer than all claims have been adjudicated. See Matter of Commodore Hotel Fire and Explosion, 318 N.W.2d 244 (Minn.1982) (Where issues of liability and damages were bifurcated for trial, determination of liability was a partial adjudication and not appealable.)\\nThe purpose of [rule 54.02] is to prevent piecemeal, multiple appeals arising from a single act and to protect a party from the prejudice that may result from adjudication of less than all of the claims or less than all of the rights and liabilities of all the parties.\\n2A Herr & Haydock, Minnesota Practice, Civil Rules Annotated 8 (1985).\\nEven though nonappealable, in the interest of judicial economy, we grant discretionary review of the trial court's judgment entered following the first portion of the bifurcated trial.\\nFollowing the trial on the general propriety of the assessments, the trial court vacated the assessments. The court stated as a legal conclusion that the assessment method violated the state and federal constitutions and Minn.Stat. \\u00a7 429.061.\\nAppellate courts do not defer to the trial court on reviewing ultimate conclusions of law. Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 354 (Minn.1978).\\nHere we examine both the trial court's decision to bifurcate the issues as it did and the court's conclusion of law that the assessment was unconstitutional.\\nTrials may be bifurcated where multiple claims or parties exist. A case involves multiple parties whenever more than one plaintiff or one defendant exist. Whether an action involves multiple claims presents a more difficult question. 2A Herr & Haydock, supra, at 8.\\nThis case does present multiple parties, but there is only one real issue, the constitutionality of the assessment. The city's assessment method and the question of whether the individual assessments are in compliance with Minn.Stat. \\u00a7 429.061 are intertwined and meaningful appellate review can only be granted after a complete trial on both questions.\\nHere, the trial court made a final determination on the merits with the portion of the trial on the individual assessments yet to be conducted. The court's conclusion of law and entry of judgment vacating the assessments was premature. We vacate both the conclusion of law and the judgment that the assessments are vacated and remand for completion of the trial. This order is without prejudice to the trial court's need to again consider the constitutional issue at the completion of the trial. This order is also without prejudice to the rights of either party to appeal following a final judgment.\\nDECISION\\nThe trial court prematurely vacated Men-dota's assessment on constitutional grounds.\\nVacated and remanded for completion of the bifurcated trial on the merits of all matters.\"}"

minn/10660822.json

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+"{\"id\": \"10660822\", \"name\": \"In re the Marriage of: Michael Raymond RICKETSON, petitioner, Appellant, v. Carol Lynn RICKETSON, Respondent\", \"name_abbreviation\": \"Marriage of Ricketson v. Ricketson\", \"decision_date\": \"1987-03-17\", \"docket_number\": \"No. C4-86-1200\", \"first_page\": \"588\", \"last_page\": \"591\", \"citations\": \"402 N.W.2d 588\", \"volume\": \"402\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:42:09.902545+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., and PARKER and LESLIE, JJ., with oral argument waived.\", \"parties\": \"In re the Marriage of: Michael Raymond RICKETSON, petitioner, Appellant, v. Carol Lynn RICKETSON, Respondent.\", \"head_matter\": \"In re the Marriage of: Michael Raymond RICKETSON, petitioner, Appellant, v. Carol Lynn RICKETSON, Respondent.\\nNo. C4-86-1200.\\nCourt of Appeals of Minnesota.\\nMarch 17, 1987.\\nClyde C. Ahlquist, Roseville, for appellant.\\nRobert J. Monson, St. Paul, for respondent.\\nConsidered and decided by POPOVICH, C.J., and PARKER and LESLIE, JJ., with oral argument waived.\", \"word_count\": \"1395\", \"char_count\": \"8711\", \"text\": \"OPINION\\nLESLIE, Judge.\\nMichael Raymond Ricketson appeals from a judgment increasing his child support obligation. He claims the trial court's decision is not supported by sufficient findings of fact under Moylan v. Moylan, 384 N.W.2d 859 (Minn.1986). We reverse and remand for additional findings.\\nFACTS\\nThe parties' marriage was dissolved on November 26, 1979. Pursuant to the judgment and decree the trial court awarded respondent Carol Lynn Ricketson custody of the parties' two minor children and ordered appellant Michael Raymond Ricket-son to pay child support in the amount of $78.00 per month. The child support was modified after appellant became employed. A March 6, 1980 order excused support arrearages from November 26, 1979 to February 11, 1980 and reset support payments at $54.17 per month until January 1, 1981 after which payments were raised to $86.67 per month.\\nOn September 24, 1984 respondent moved for modification of child support payments. Appellant responded by moving the court to dismiss respondent's motion and award attorneys' fees. Both respondent and appellant filed affidavits in support of their respective positions. No transcript was made, but appellant did prepare a statement of the proceedings pursuant to Minn.R.Civ.App.P. 110.03. The hearing referee was unavailable for evaluation of this statement and it was never approved.\\nThe trial court found that at the time of the original decree respondent was earning $654.59 per month and receiving APDC. The court further found that she is now earning approximately $980.00 net income per month. The court indicated that respondent \\\"originally claimed that her monthly expenses for herself and two children were $848, but later modified the same to $1,392, in that her original statement was based on one-half expenses.\\\" The court additionally found that respondent presently is residing with a person who receives a weekly gross income of $220. With respect to appellant, the court found that at the time of the first modification he was earning $688.00 per month. The court ultimately found:\\n4. That the [appellant] is now employed earning a monthly net income of $1,081. He is living with a woman, with whom he has had two children, since entry of the Decree and former order. The person with whom he is residing has one child and is receiving $412 per month AFDC for that child. He claims that his monthly expenses for himself and the woman with whom he is residing, and three children, total $1,678.\\n5. That there has been substantial increase in the earnings of the [appellant], since entry of the Decree and Amended Order, so as to make the $78 per month unreasonable and unfair within the meaning and purview of M.S. 518.64, Subd. 2.\\n6. That by virtue of the fact that the child support guidelines apply to modification motions when the moving party has shown a change of circumstances [citations omitted] and because looking at the total factual circumstances involved therein, the Court sees no basis upon which to depart either above or below the guidelines, the Court is compelled to follow the guidelines and order 30 percent of $1,081, or $324 per month child support.\\nConsequently on December 10, 1984, the trial court ordered appellant's child support payments raised to $324.00 per month. After appellant's first appeal was dismissed for appealing from a non-appealable order the trial court entered an amended judgment and decree on April 21, 1986. This appeal followed.\\nISSUE\\nIs the trial court's decision supported by adequate findings?\\nANALYSIS\\nA trial court has broad discretion in determining whether or not to grant a motion for modification of child support payments. Quaderer v. Forrest, 387 N.W.2d 453, 455 (Minn.Ct.App.1986). Such a determination will not be reversed by this court unless there has been a clear abuse of discretion that renders the order arbitrary, unreasonable or without evidentiary support. Id. Yet, the supreme court has noted that this discretion is limited by Minn.Stat. \\u00a7 518.64 (1984) which requires a two-step analysis:\\n(1) Do any of the four factors in Minn. Stat. \\u00a7 518.64, subd. 2, alone or in combination, create a substantial change in circumstances warranting a modification of child support?; and (2) if so, after considering the needs of the children and the financial situation of the parties' spouses, what modification should the court make?\\nMoylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986).\\nTo comply with the first step of this analysis the trial court must make findings showing one or more of the following:\\n(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party; (3) receipt of assistance under sections 256.-72 to 256.87; or (4) a change in the cost-of-living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair.\\nMinn.Stat. \\u00a7 518.64, subd. 2 (1984). Additionally, the substantial change in circumstances making the terms unreasonable and unfair must have occurred since the last modification of the support obligation. Blomgren v. Blomgren, 386 N.W.2d 378, 380 (Minn.Ct.App.1986).\\nThe trial court here has failed to comply with this first step. The court found that \\\"there has been a substantial increase in the earnings of [appellant], since entry of the Decree and Amended Order, so as to make the $78 per month unreasonable and unfair.\\\" (emphasis added). The court apparently made a finding of unreasonableness and unfairness pursuant to the first of the four factors. In fact, there is authority supporting the court's substantive finding that an appellant's increase in earnings from a monthly income of $688.00 to $1,081, a 57% increase, itself supplies a basis for modification with respect to the substantial change requirement. Neary v. Neary, 366 N.W.2d 369, 371 (Minn.Ct.App.1985) ($5,000 increase over $11,280 was substantial change for increasing child support). Regardless, the trial court looked back to the original decree of November 26, 1979 when it made this determination. The court should have looked to the last modification, the March 6, 1980 order to so determine. To fail to do so is reversible error. Blomgren, 386 N.W.2d at 380.\\nTo comply with the second step required by Moylan the court must make findings demonstrating that it considered the needs of the children and the financial situation of the parties' spouses. Moylan, 384 N.W.2d at 864. The spouses' income should have been considered here, as the support order was entered before August 1, 1986. See Minn.Stat. \\u00a7 518.64, subd. 2 (1986).\\nThe trial court failed to comply with this step by failing to make any finding concerning the needs of the parties' children. Without such a finding we are unable to determine whether the trial court considered this statutorily required factor.\\nMoylan requires that in all child support cases not involving public assistance, the trial court must make specific findings of fact as to the factors it considered in formulating the award. Moylan, 384 N.W.2d at 863. The factors that must be considered are enunciated in Minn.Stat. \\u00a7 518.-17, subd. 4 (1984):\\n(a) The financial resources and needs of the child;\\n(b) The financial resources and needs of the custodial parent;\\n(c) The standard of living the child would have enjoyed had the marriage not been dissolved;\\n(d) The physical and emotional condition of the child, and his educational needs; and\\n(e) The financial resources and needs of the noncustodial parent.\\nBecause Moylan was released after the trial court's decision, the trial court also failed to make these mandated findings. The trial court merely found that there had been a substantial increase in appellant's earnings. Specifically, the trial court has failed to make any finding with respect to the financial resources and needs of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child and the child's emotional needs. While there is evidence within the record upon which these determinations could have been made, the record fails to establish that such factors were considered.\\nDECISION\\nThe trial court failed to make all the statutorily required findings for modification of child support payments.\\nReversed and remanded.\"}"

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+"{\"id\": \"10660869\", \"name\": \"STATE of Minnesota, Respondent, v. Ronald T. COE, Appellant\", \"name_abbreviation\": \"State v. Coe\", \"decision_date\": \"1987-04-21\", \"docket_number\": \"No. C5-87-79\", \"first_page\": \"844\", \"last_page\": \"847\", \"citations\": \"404 N.W.2d 844\", \"volume\": \"404\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:25:52.629682+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by FORSBERG, P.J., and RANDALL and STONE, JJ.\", \"parties\": \"STATE of Minnesota, Respondent, v. Ronald T. COE, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Ronald T. COE, Appellant.\\nNo. C5-87-79.\\nCourt of Appeals of Minnesota.\\nApril 21, 1987.\\nReview Granted June 25, 1987.\\nHubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, J. Michael Richardson, Asst. Co. Atty., Minneapolis, for respondent.\\nC. Paul Jones, State Public Defender, Mark F. Anderson, Asst. State Public Defender, University of Minnesota, Minneapolis, for appellant.\\nConsidered and decided by FORSBERG, P.J., and RANDALL and STONE, JJ.\\nActing as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. 6, \\u00a7 2.\", \"word_count\": \"1687\", \"char_count\": \"10479\", \"text\": \"OPINION\\nSTONE, Judge.\\nRonald Thomas Coe was convicted of two counts of first degree burglary and one count of attempted criminal sexual conduct in the third degree following a jury trial. He was sentenced in October 1986 to a 30 month prison term for one of the burglary convictions. Coe, a repeat sex offender, also received a concurrent 90 month sentence for the attempted criminal sexual conduct conviction, an increase of two and one-half times the presumptive sentence of 36 months. He appeals from this latter sentence on the grounds that it is greater than the statutory maximum sentence allowed for the offense and seeks a reduction of the sentence to 60 months. We affirm as modified.\\nFACTS\\nAppellant Ronald Thomas Coe was convicted by a jury of:\\n1. First degree burglary of an occupied dwelling in violation of Minn.Stat. \\u00a7 609.582, subd. 1(a) (1984) (Count I).\\n2. First degree burglary with an assault in violation of Minn.Stat. \\u00a7 609.582, subd. 1(c) (1984) (Count II).\\n3. Attempted criminal sexual conduct in the third degree in violation of Minn. Stat. \\u00a7 609.344, subd. 2 (Supp.1985), with reference to Minn.Stat. \\u00a7 609.17 (1984) (Count III).\\nCoe is a repeat sex offender with a criminal history score of 2, and has unsuccessfully participated in five separate treatment programs in the previous years. Before sentencing, the State moved the trial court for an upward durational departure on Count II to 88 months (based upon a maximum presumptive sentence of 44 months). In the alternative, the State requested that Counts II and III be executed consecutively for an aggregate sentence of 80 months. The trial court sentenced Coe to a presumptive 30 month sentence for his conviction under Count I. The remaining burglary conviction under Count II was merged. For the attempted third degree criminal sexual conduct conviction, the trial court imposed a concurrent 90 month sentence, two and one half times the presumptive sentence of 36 months. The durational departure was based upon the trial court's assessment that Coe was not amenable to treatment and likely to repeat this type of offense, the fact that the offense involved an invasion of the victim's zone of privacy and the fact that the victim sustained injuries as a result of the attempted assault. In imposing sentence, the court commented:\\nThe record should further indicate that this appears to be a case where the Sentencing Guidelines have not taken into consideration the facts of this particular case and that it is the Court's feeling the sentence should be much longer.\\nMr. Coe, it is clear to the Court that at least from your past record that treatment is no longer a viable option and that at least one psychologist and maybe two have come to the conclusion that when you are released from prison that you will be back doing the same things that brought you before this Court.\\n\\u215d H * \\u215d\\nSo the record is clear for any future use, it is this Court's opinion that you should be incarcerated for a much longer period of time and it is questionable that you should ever be released from either prison or an institution.\\nAnd if it wasn't for the Sentencing Guidelines, I would fashion a sentence that would accomplish that purpose.\\nISSUES\\n1. Is appellant entitled to a reduction of his 90 month sentence for attempted third degree sexual conduct to the statutory maximum sentence of 60 months?\\n2. If a reduction in the attempted third degree sexual conduct sentence is mandated, may the matter be remanded for resen-tencing on the first degree burglary convictions to reflect an increase to the statutory maximum sentence allowed?\\nANALYSIS\\n1. The sentencing scheme available to the trial court following the jury's verdict consisted of the following:\\nCOUNTS STATU- PRESUMP-TORY TIVE MAXIMUM SENTENCE ACTUAL SENTENCE IMPOSED\\nI. First degree burglary of an occupied dwelling in violation of Minn.Stat. \\u00a7 609.582, subd. 1(a). (Severity VI) 20 years 30 months 30 month concurrent\\nII. First degree burglary with an assault in violation of Minn.Stat. \\u00a7 609.582, subd. 1(c). (Severity VII) 20 years 41 months executed (range 38-44 months) No sentence (merged)\\nIII. Attempted criminal sexual conduct in the third degree in violation of Minn.Stat. \\u00a7 609.344, subd. 2. (Severity VII) 5 years' 36 months * 90 months\\nCoe acknowledges the existence of aggravating circumstances in this case and does not challenge the upward departure on the attempted criminal sexual conduct conviction from 36 to 60 months. See, e.g., State v. Morales, 324 N.W.2d 374 (Minn.1982) (departure from the presumptive sentence for criminal sexual conduct conviction upheld when assault with a dangerous weapon occurred in the victim's backyard, invading her zone of privacy, and caused the victim fear of great bodily harm); State v. Eberhardt, 379 N.W.2d 242, 246 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Feb. 19, 1986) (although the trial court erred in assigning a 95 month presumptive sentence for defendant's criminal sexual conduct conviction, the court did not err in assigning a double durational departure when the assault occurred in the victim's home and in the presence of her minor child).\\nRecently, in State v. Mortland, 399 N.W.2d 92 (Minn.1987), the supreme court held that when severe aggravating circumstances are present, the only absolute limit on sentence duration for the offense is that provided by the legislature in defining the offense. Thus, even when severe aggravating circumstances are present, the maximum sentence that could be imposed for the offense of attempted criminal sexual conduct would be 60 months. The trial court in this case therefore erred in imposing \\u00e1 sentence greater than the statutory maximum, and Coe is entitled to a reduction of sentence to 60 months. See State v. Perkins, 353 N.W.2d 557, 562 (Minn.1984) (trial court erred in imposing a sentence for assault in the second degree greater than the statutory maximum of five years); State v. Skerjance, 397 N.W.2d 602, 604 (Minn.Ct.App.1986) (trial court erred in imposing a 36 month sentence when the statu tory maximum for attempted assault in the second degree was 30 months).\\n2. Although the State essentially concedes that Coe is entitled to a reduction in sentence to 60 months for the attempted criminal sexual conduct conviction, it nevertheless argues that the sentence should be vacated and remanded for the purpose of increasing Coe's concurrent burglary sentence. In short, the State asserts that since it originally proposed a double departure of the 44 month presumptive sentence on Count II to 88 months and since the trial court intended to impose the maximum sentence available, the matter should now be remanded for resentencing to reflect a sentence consistent with the trial court's intentions. We disagree.\\nIn Walker v. State, 394 N.W.2d 192 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Nov. 26, 1986), this court held that a remand for resentencing was mandated, but cautioned that upon remand \\\"the trial court is limited to the sentence originally imposed and may not 'increase the penalty for any of the offenses on which it will sentence [the defendant].' \\\" Id. at 200 (quoting State v. Prudhomme, 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975)) (emphasis supplied). See State v. Holmes, 281 Minn. 294, 298, 161 N.W.2d 650, 653 (1968) (\\\"any increase in penalty upon a retrial inevitably discourages a convicted defendant from exercising his legal rights and is contrary to public policy.\\\") See also State v. Carver, 390 N.W.2d 431, 435 (Minn.Ct.App.1986). A remand for resentencing on the burglary convictions in excess of 30 months concurrent, the sentence originally imposed, would constitute an impermissible increase in penalty in this case.\\nAlthough it was neither briefed nor argued, State v. Rohda, 358 N.W.2d 39 (Minn.1984) is the authority closest to furnishing support for the State's requested removal and resentencing. In Rohda the trial court had sentenced the defendant to consecutive terms of 76 and 15 months, stating that it decided to \\\"follow the Guidelines.\\\" Id. at 41. However, the guidelines did not authorize consecutive sentences absent aggravating circumstances. The Supreme Court remanded for re-sentencing, and authorized the trial court to depart by imposing a concurrent sentence of up to but not more than 91 months.\\nThe instant case is unlike Rohda. Here, Coe's sentence of 90 months was more than a guidelines violation, it was statutorily invalid to the extent that it exceeded 60 months. After five years Coe would have been released on habeas corpus. Hence any sentence in excess of 60 months would be an enhancement of penalty by reason of Coe's appeal, and is precluded by Walker, Prudhomme, and Holmes.\\nDECISION\\nAppellant's sentence for attempted criminal sexual conduct in the third degree is reduced to 60 months.\\nAffirmed as modified.\\nSee Minn.Stat. \\u00a7 609.344, subd. 2 (Supp.1985); Minn.Stat. \\u00a7 609.17 (1984).\\nMandatory minimum sentence pursuant to Minn.Stat. \\u00a7 609.346 (Supp.1985) (persons convicted of a second or subsequent offense \\u2014 including attempts \\u2014 under sections 609.342 to 609.345 shall be committed for a prison term of not less than three years).\\n. In addition to Coe's status as a repeat sex offender and the existence of aggravating circumstances, the trial court here also considered his unamenability to treatment as a basis for durational departure. Generally, unamenability to rehabilitation, while a consideration for dis-positional departure, should not be used to determine whether to depart durationally. State v. Johnson, 327 N.W.2d 580, 583 (Minn.1982).\\n. The State's reliance on State v. Nunn, 399 N.W.2d 193, 198 (Minn.Ct.App.1987), pet. for rev. denied, (Minn. Mar. 13, 1987), is misplaced since that case, unlike the present case, involved multiple victims.\"}"

minn/10661604.json

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+"{\"id\": \"10661604\", \"name\": \"MINNESOTA LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATION, Relator, v. DEPARTMENT OF COMMERCE, Respondent\", \"name_abbreviation\": \"Minnesota Life & Health Insurance Guaranty Ass'n v. Department of Commerce\", \"decision_date\": \"1987-02-17\", \"docket_number\": \"No. C5-86-1464\", \"first_page\": \"769\", \"last_page\": \"775\", \"citations\": \"400 N.W.2d 769\", \"volume\": \"400\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:20:17.724213+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by RANDALL, P.J., and FOLEY and WOZNIAK, JJ.\", \"parties\": \"MINNESOTA LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATION, Relator, v. DEPARTMENT OF COMMERCE, Respondent.\", \"head_matter\": \"MINNESOTA LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATION, Relator, v. DEPARTMENT OF COMMERCE, Respondent.\\nNo. C5-86-1464.\\nCourt of Appeals of Minnesota.\\nFeb. 17, 1987.\\nFrank J. Walz, Best & Flanagan, Minneapolis, for relator.\\nHubert H. Humphrey III, Atty. Gen., Jerome L. Getz, Allen I. Gilbert, Sp. Asst. Attys. Gen., St. Paul, for respondent.\\nChristopher J. Dietzen, John E. Diehl, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, for John Alden Life Ins. Co. and Sun Life Ins. Co. of America.\\nTimothy R. Thornton, Thomas J. Voll-brecht, Hart, Bruner, O\\u2019Brien & Thornton, Minneapolis, for IDS Life Ins. Co. and Midwest Life Ins. Co.\\nDepartment of Commerce, St. Paul, pro se.\\nCarl W. Cummins, Jr., Dorsey & Whitney, St. Paul, for Manufacturers Life Ins. Co.\\nHeard, considered, and decided by RANDALL, P.J., and FOLEY and WOZNIAK, JJ.\", \"word_count\": \"3326\", \"char_count\": \"21932\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nThe Minnesota Life and Health Insurance Guaranty Association appeals from a decision of the Commissioner of Commerce determining the assessment base for Association member insurers. The Association contends that the Commissioner erred in: (1) broadly defining annuity contract under Minn.Stat. \\u00a7 61B.03, subd. 3 (1984); (2) determining unallocated annuities are contracts \\\"supplemental to\\\" annuity contracts under Minn.Stat. \\u00a7 61B.02, subd. 1; and (3) ordering recalculation of the assessments of all Association member insurers. We affirm.\\nFACTS\\nAppellant Minnesota Life and Health Insurance Guaranty Association (Association) is a nonprofit organization created under the Insurance Guaranty Association Act, Chapter 61B. All insurers in Minnesota dealing in life, health, and annuity contracts are Association members. The Act is designed to protect policyholders, insureds, beneficiaries, and others against insurance company failures. The Association was created to guarantee benefit payments and coverage continuation for Minnesota residents. Association members are assessed to make the payments to insureds. Assessments are limited to 2% yearly of an insurer's premiums covered by a particular account, such as an annuity account.\\nThe Department of Commerce found that Minnesota's Insurance Guaranty Association Act, adopted in 1977, was patterned after a national Model Act. However, the Minnesota Act contains a definition of \\\"annuity contracts,\\\" the major issue of this appeal, which is not contained in the Model Act.\\nThis action stems from a recent assessment of Association insurers due to the bankruptcy of Baldwin-United and its subsidiaries, University Life Insurance Company of Indiana and National Investors Insurance Company of Arkansas. Cincinnati-based Baldwin-United filed for bankruptcy in 1983, shortly after its subsidiaries were placed into rehabilitation in their home states. Before Baldwin-United's failure, over 2,700 single premium deferred annuities (SPDAs) were purchased by Minnesota residents. Under an SPDA policy, the policyholder pays a lump sum to the company, which establishes an interest-earning account. At a fixed time, the policyholder may withdraw the accumulated funds or elect one of the contract's annuity payout options.\\nIn November 1983, the Commissioner found that the companies were unable to meet their obligations to policyholders and were \\\"impaired insurers\\\" under the Act. In January 1984 the Commissioner sued the Association to force it to assess member insurers to cover payments due Minnesota policyholders. The parties entered into a stipulation in May 1985 to assume or guarantee the obligation of the two insurance subsidiaries under the SPDAs issued to Minnesota residents. The stipulation provides that on November 1, 1987, the Association will reimburse Minnesota residents the difference between whatever an insured had received with respect to the SPDA from whatever source, and the policy value of the SPDA on May 1, 1984.\\nTo meet this obligation, the Association agreed to assess its members based on a percentage of the dollar amount of annuity contracts they write. The Association excluded certain types of annuity contracts from the assessment base, specifically those not issued to or owned by a named individual. The unallocated annuity contracts excluded by the Association include guaranteed investment contracts (GICs) and deposit administration contracts (DACs). GICs and DACs, issued primarily under pension fund and profit sharing plans, provide for payment of funds to the insurer by an employer or other policyholder at a specific interest rate for a fixed term. The policyholder cannot withdraw the funds before the end of the term except to adjust for a prevailing interest rate change or to begin annuity payments for plan participants.\\nThe Association determined that the definition of annuity in Minn.Stat. \\u00a7 61B.03 put GICs and DACs outside the Act's coverage, thus removing them from the assessment base. Minnesota Statute Section 61B.03, subdivision 3 states:\\n\\\"Annuity contracts\\\" means contracts subject to Chapter 61A wherein the poli-cyowner agrees to make payments to the insurer at the beginning of the contract period and the insurer agrees to make payments thereafter to the insured for a specified period of time or until the insured's death.\\nThe stipulation between the State and the Association requires a $6 million assessment from member insurers. The Association's board of directors' resolution sets the assessment base as:\\nAll premiums or considerations received by such members from the sale in Minnesota during the calendar year 1982 of annuity contract or annuity certificates, except premiums or considerations arising from any annuity contract or any annuity certificate issued under a group annuity contract which was not issued to or owned by an individual, except to the extent of any annuity benefits guaranteed to any such individual by the insurer under any such annuity contract or certificate.\\n(Emphasis added.)\\nAfter excluding GICs and DACs, the assessment was based on $389 million in premiums. If GICs and DACs were included in the base, an additional $252 million in annuity premiums would have been included, bringing the assessment base to $641 million. This dispute involves the question of whether the GICs and DACs should be included in the assessment base.\\nRespondent insurers appealed the assessment base to the Commissioner of Commerce, objecting to the exclusion of GICs and DACs. A contested case hearing was held before an administrative law judge (AU) whose proposed findings recommended that the Association reassess all member insurers and include unallocated annuities in the assessment base. The AU determined that exclusion of the unallocated annuities would deprive many Minnesota insureds of the Act's protection, while improperly reducing the assessment base. He noted that a major insolvency would substantially increase the time it would take to protect Minnesota consumers.\\nBoth oral testimony and documentary evidence were presented at the administrative hearing. John Ingassia, supervisor of the life and health section of the Department of Commerce, testifying for informational purposes, said the department was taking a neutral position with respect to inclusion of DACs and GICs into the Act's coverage. He explained that unallocated annuities are regulated by the Commerce Department in the same manner as all other annuities and noted that GICs and DACs are not specifically excluded from the Act's coverage. He also pointed out that GIC contracts include an annuity option. Richard O'Brien, vice president and assistant general counsel for IDS Financial Services, testified that the board's narrow assessment base means that IDS bears a disproportionate share of the assessments. He claims that the Baldwin-United annuities sold to Minnesotans were basically GIC contracts and that GICs are considered annuities by the Internal Revenue Service and for general insurance law purposes.\\nRoyce Sanner, Vice President and General Counsel for Northwestern National Life Insurance and a member of the Association's board of directors, explained that the distinction between covered and noncov-ered annuity contracts is the absence of the provision identifying the persons who would become annuitants in the noncovered contracts. He explained the board interpreted the statute to require narrow coverage in the belief that, \\\"It's better to protect individual John Does than to protect large, sophisticated pension plan buyers.\\\" San-ner admitted that his company sells DACs and GICs and that $32 million in premiums were excluded under the board's interpretation. He said nearly all other board members also benefit from this interpretation.\\nSanner agrees that GICs and DACs are considered annuities under Minn.Stat. \\u00a7 61A, but disputes whether they are annuities under Chapter 61B due to the definition of annuity contract contained in the Minnesota Act. Respondents claim there is no difference.\\nThe Association disagreed with the AU's findings. In July 1986, the Commissioner's findings, conclusions and order determined that GICs and DACs and other unallocated annuity contracts are covered under the Act as contracts \\\"supplemental to\\\" annuity contracts or, alternatively, \\\"annuity contracts.\\\" The order invalidated the Association's assessment and required a new assessment of all insurers. The Association then appealed by writ of certiorari.\\nISSUES\\n1. Did the Commissioner of Commerce err in determining GICs, DACs, and other unallocated annuities are covered policies under the Minnesota Insurance Guaranty Association Act?\\n2. Did the Commissioner err in determining GICs and DACs were \\\"supplemental to\\\" annuity contracts under Minn.Stat. \\u00a7 61B.02, subd. 1?\\n3. Did the Commissioner err in ordering recalculation of the assessments of all member insurers?\\nANALYSIS\\n1.Scope of Review\\nMinnesota Statutes Sections 14.63-14.69 (1986) govern judicial review of an agency decision.\\nIn a judicial review under sections 14.-63 to 14.68, the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusions, or decisions are:\\n(a) In violation of constitutional provisions; or\\n(b) In excess of the statutory authority or jurisdiction of the agency; or\\n(c) Made upon unlawful procedure; or\\n(d) Affected by other error of law; or\\n(e) Unsupported by substantial evidence in view of the entire record as submitted; or\\n(f) Arbitrary or capricious.\\nMinn.Stat. \\u00a7 14.69.\\nAgency decisions enjoy a presumption of correctness. Crookston Cattle Co. v. Minnesota Department of Natural Resources, 300 N.W.2d 769, 777 (Minn.1980). Courts should afford special deference to an agency's expertise, knowledge, education, and experience in the field of its technical training. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977).\\nThe agency's factual findings are to be reviewed under the substantial evidence test. Peoples Natural Gas Co. v. Minnesota Public Utilities Commission, 342 N.W.2d 348, 351 (Minn.Ct.App.1983), pet. for rev. denied (Minn. April 24, 1984). Substantial evidence is:\\n1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;\\n2. More than a scintilla of evidence;\\n3. More than \\\"some evidence\\\";\\n4. More than \\\"any evidence\\\"; and\\n5. Evidence considered in its entirety.\\nReserve Mining Co., 256 N.W.2d at 825.\\nThe reviewing court should use this test to evaluate the evidence considering the entire record, and affirm if the agency decision is lawful and reasonable. See id. at 826-27.\\nHere, the Association argues the Commissioner erroneously interpreted the Act by incorrectly defining \\\"annuity contracts\\\" and contracts \\\"supplemental to\\\" annuity contracts. The Association also claims the Commissioner exceeded his authority under the Act by invalidating the assessment as applied to the 250 insurers who did not appeal.\\n2. The Association contends the Commissioner erroneously determined that GICs and DACs are. covered contracts pursuant to the definition of annuity contracts contained in Minn.Stat. \\u00a7 61B.03, subd. 3. It argues that deference to agency expertise is inappropriate in a case of first impression such as this. On the other hand, respondents, John Alden Life Insurance and Sun Life, urge the court to accord even greater deference to the agency's decision.\\nIn urging courts to defer to an agency's skill and technical expertise, this court stated:\\nWhere evidence is conflicting or more than one inference may be drawn from the evidence, findings of the hearing examiner must be upheld.\\nIn re Kern Grain Co., 369 N.W.2d 565, 569 (Minn.Ct.App.1985), pet. for rev. denied (Minn. August 29, 1985). We believe the principle is the same for matters not subject to prior judicial construction.\\nIn a case of first impression involving interpretation of a statute subject to two reasonable interpretations, the supreme court noted:\\n[A] statute is to be construed according to the legislative intent, which is to be sought in the language used, in light of the subject matter, the purpose of the statute, the occasion and necessity for the law, and the consequences of a particular interpretation.\\nState v. Olson, 325 N.W.2d 13, 19 (Minn.1982) (quoting Grudnosky v. Bislow, 251 Minn. 496, 498, 88 N.W.2d 847, 850 (1958)). The legislature directed the provisions of the Insurance Guaranty Association Act apply to\\ndirect life insurance policies, health insurance policies, annuity contracts, and contracts supplemental to life and health insurance policies or annuity contracts, issued by persons authorized at any time to transact insurance in this state.\\nMinn.Stat. \\u00a7 61B.02, subd. 1. The defined purpose of the Act is\\nto protect policyowners, death benefit certificate holders, insureds, beneficiaries, annuitants, payees, and assignees of life insurance policies, health insurance policies, annuity contracts, and supplemental contracts .\\nId., subd. 2. The legislature provided that the Act is to be liberally construed to meet its purposes and that the fundamental consumer protection policy shall aid in interpreting the Act. Id., subd. 3. Therefore, we need not speculate about the Act's purpose. It is to protect the future financial stability of individuals.\\nThe Insurance Guaranty Association Act is protective and remedial legislation. In general,\\na liberal construction is usually accorded statutes which are regarded by courts as humanitarian or which are grounded on a humane public policy. Where there are disqualifying provisions, the exceptions should be narrowly construed.\\nNordling v. Ford Motor Co., 231 Minn. 68, 76-77, 42 N.W.2d 576, 581-82 (1950) (citations omitted). Minnesota Statutes Section 61B.02, subdivision 1(a) through (e) identifies five types of policies which are excluded from coverage under the Act. Unallocated annuity policies such as GICs and DACs are not mentioned. To construe the statute to exclude GICs and DACs from coverage would be to broadly interpret the exclusionary clauses.\\nUnder Minn.Stat. \\u00a7 645.08 (1986), words are to be construed \\\"according to their common and approved usage\\\" unless they have acquired some special meaning. All parties to this action seem to agree that, without the narrow or unusual definition of annuity contract contained in the statute, such unallocated annuities would be covered and thus included in the assessment base.\\nTestimony at the administrative hearing did not show that the term \\\"annuity contract\\\" has been accorded any special meaning. Further, the purpose of judicially construing any statute is to determine the intent of the legislature. Minn.Stat. \\u00a7 645.16. In ascertaining legislative intent, we may consider other statutes concerning the same subject matter. E.g., County of Hennepin v. County of Houston, 229 Minn. 418, 420-22, 39 N.W.2d 858, 859-60 (1949); In re Estate of Messerschmidt, 352 N.W.2d 774, 776-77 (Minn.Ct.App.1984).\\nMinnesota Statutes Sections 61A.01-61A.52 (1986) deal with the insurance industry and annuity contracts in the context of life insurance industry. At the administrative hearing, most of the witnesses testified that GICs and DACs would be considered annuity contracts under Chapter 61A.\\nIt is well-settled that where evidence is conflicting or more than one inference may be drawn from the evidence, the hearing examiners findings must be upheld. In re Kern Grain Co., 369 N.W.2d at 569. In this case, the Commissioner of Commerce, as well as the administrative law judge, determined that the Association erred in eliminating the unallocated annuities from the assessment base. The record presents an adequate basis for the Commissioner's decision.\\nThroughout the administrative hearing, the parties complained about the ambiguous wording of the statute. \\\"When the meaning of a statute is doubtful, courts should give great weight to a construction placed upon it by the department charged with its administration.\\\" Krumm v. R.A. Nadeau Co., 276 N.W.2d 641, 644 (Minn.1979). The applicable case law and rules of statutory construction favor the Commissioner's decision to afford GICs and DACs coverage under the Act.\\nThe $6 million assessment levied is far in excess of the projected liability of $290,000 to Minnesota policyholders on November 1, 1987. The Association argues that, since the direct impact of this case on Minnesota policyholders is minimal and no Minnesota policyholders are in jeopardy, the court should adopt the Association's interpretation of the statute and seek legislative amendment to the Act to specifically include unallocated annuities. However, this argument ignores the public policy implication of the decision. An insurer selling GICs and DACs to pension funds could find itself in financial trouble before the legislature could act. We find that it is clear the legislature intended that those who place their money in pension funds be protected.\\n3. The Association argues that the Commissioner erred when he determined that GICs and DACs were \\\"supplemental to\\\" annuity contracts under Minn.Stat. \\u00a7 61B.02., subd. 1. Although the Commissioner primarily based his decision on the premise that GICs and DACs are supplemental to annuity contracts, a finding not proposed by the ALJ, the Commissioner alternatively adopted the AU's recommended findings that GICs and DACs are annuity contracts within the meaning of the statute.\\nWe believe the Association correctly contends that GICs and DACs are not \\\"supplemental to\\\" anything. Evidence at the hearing shows the annuity option contained in such contracts is one possibility of the GIC or DAC. For example, if the pension fund trustee decided to exercise an annuity option contained in a DAC or GIC, the trustee would then enter into a supplemental contract. However, since there is sufficient evidence to uphold the Commissioner's decision based on direct coverage of DACs and GICs as annuity contracts, we will not address this question in detail.\\n4. The Association finally contends that if this court determines the assessment was computed on an improper base, only the assessments of the Association members appealing from their assessments should be recalculated. The AU concluded that since the assessment was wrongfully computed, it is void and must be recalculat ed for all Association member insurers. The Commissioner adopted the AU conclusion in his decision. The Association takes the position that the assessment is only voidable.\\nThe Association was formed as a mechanism for assessing its member insurers. Minnesota Statutes Section 61B.07, subdivision 3(b) provides:\\n[Assessments against member insurers for each account shall be in the proportion that the premiums received on business in this state by each assessed member insurer on policies covered by each account bear to premiums received on business in this state by all assessed member insurers.\\nIn Minnesota Farmers Mutual Insurance Co. v. Landkammer, 126 Minn. 245, 247, 148 N.W. 305, 306 (1914), the court held that where legislation requires a uniform, pro rata assessment, a nonuniform assessment cannot be sustained.\\nPast practices in Minnesota support the Commissioner's order for recalculation. When courts modify a power company consumer rate increase, refunds are given to all power purchasers, not just to parties appealing. More on point would be an appeal by commercial power purchasers from a major utility company. If rates are reduced, realigned, etc., the new rate is applied to all members of the power class, not just those appealing the decision.\\nThe Association argues that if this court affirms the Commissioner's decision, it will be placed in an \\\"intolerable administrative position\\\" because it will be required to return the promissory notes and cash paid by about 250 members, as well as levy a new assessment. We do not accept the Association's argument. Requiring some of the Association's insurers to bear a disproportionate amount of the burden would violate the statutory mandate. Finally, if this court adopts the Association's position, those companies who would have to pay a greater share under the Commissioner's interpretation would not have their assessments subject to recalculation.\\nDECISION\\nThe record supports the decision of the Commissioner of Commerce determining that GICs and DACs are covered annuities under Minn.Stat. \\u00a7 61B.03, subd. 3 (1984). We affirm and direct the Minnesota Life and Health Insurance Guaranty Association to recalculate assessments for all member insurers consistent with this opinion.\\nAffirmed.\\n. Seven members of the nine member board of directors of the Guaranty Association represent companies which benefit financially from the board's interpretation of the statute. We believe this represents a serious conflict of interest and call the legislature's attention to such conflicts in the assessment procedure.\"}"

minn/10663655.json

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+"{\"id\": \"10663655\", \"name\": \"Gregory John GERNES, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant\", \"name_abbreviation\": \"Gernes v. Commissioner of Public Safety\", \"decision_date\": \"1988-11-15\", \"docket_number\": \"No. C9-88-1066\", \"first_page\": \"267\", \"last_page\": \"269\", \"citations\": \"431 N.W.2d 267\", \"volume\": \"431\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:47:36.334051+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered and decided by PARKER, P.J., and RANDALL and BOWEN, JJ.\", \"parties\": \"Gregory John GERNES, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.\", \"head_matter\": \"Gregory John GERNES, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.\\nNo. C9-88-1066.\\nCourt of Appeals of Minnesota.\\nNov. 15, 1988.\\nSteven R. Peloquin, Streater, Murphy, Gernander & Forsythe, Winona, for respondent.\\nHubert H. Humphrey, III, Atty. Gen., Joel A. Watne, Sp. Asst. Atty. Gen., St. Paul, for appellant.\\nHeard, considered and decided by PARKER, P.J., and RANDALL and BOWEN, JJ.\\nActing as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 2.\", \"word_count\": \"674\", \"char_count\": \"4138\", \"text\": \"OPINION\\nPARKER, Judge.\\nRespondent Gregory Gernes was arrested for driving while under the influence and refused to submit to breath testing. His license was revoked for one year and he petitioned for judicial review. The trial court ordered the period of revocation reduced to 30 days. The Commissioner of Public Safety appeals. Gernes advised the court that he would not appear by written or oral argument, and this matter proceeds pursuant to Minn.R.Civ.App.P. 142.03.\\nFACTS\\nGernes was arrested for DWI on February 1, 1988. He did not provide a breath sample to determine his alcohol concentration. At the time of his arrest, he gave no indication of any intention to enter a guilty plea to the DWI charge or to any other charge. Gernes' driver's license was revoked for refusal pursuant to the implied consent law.\\nAt the time of the implied consent hearing, Gernes had not been charged with DWI, but was charged with felony possession of a controlled substance. Minn.Stat. \\u00a7 152.09 (1986). He entered a plea of guilty to this charge at his first opportunity. Had Gernes been charged with DWI and pled guilty to that charge at the first opportunity, he would normally have been subjected to a driver's license revocation for only 30 days, as a first-time DWI offender, pursuant to a policy adopted by the Commissioner of Public Safety.\\nThe trial court concluded that Gernes was entitled to the benefit of the procedure that a first-time DWI offender would receive. It ordered the period of revocation reduced to 30 days. The Commissioner of Public Safety appeals.\\nISSUE\\nIn a proceeding under Minn.Stat. \\u00a7 169.123, subd. 6 (1986), may the trial court order the driver's one-year revocation for refusal reduced to 30 days upon a plea of guilty to a non-traffic offense which does not appear on the driving record and does not result in any driver licensing action?\\nDISCUSSION\\nThe Commissioner has a policy of revoking for 30 days the driver's license of those who plead guilty to or are convicted of their first DWI offense. The trial court here shortened the period of revocation of Gernes' driver's license from one year for refusal, Minn.Stat. \\u00a7 169.123, subd. 4 (1986), to 30 days. It reasoned that had Gernes been charged with and pled guilty to DWI at the first available opportunity, he would have been subjected to a driver's license revocation for only 30 days as a first-time DWI offender. Because Gernes was not given the opportunity to address the DWI charge, the trial court determined he was entitled to the benefit of the Commissioner's procedure for a first-time DWI offender.\\nThe implied consent law authorizes the court, after a hearing on a driver's petition for judicial review, either to sustain or to rescind the revocation. Minn.Stat. \\u00a7 169.123, subd. 6; see Godderz v. Com missioner of Public Safety, 369 N.W.2d 606, 608 (Minn.Ct.App.1985). The trial court was without authority to reduce the period of revocation. Further, Gernes was not convicted of a first-time DWI offense, which would have brought him within the purview of the Commissioner's policy. Conviction of possession of a controlled substance pursuant to Minn.Stat. \\u00a7 152.09 (1986) does not affect Gernes' driving record or his implied consent revocation. The trial court improperly reduced the length of Gernes' revocation.\\nIn view of the disposition of this issue, it is unnecessary to address the other issue raised by the Commissioner.\\nDECISION\\nThe trial court's order reducing the length of respondent's revocation period is reversed, and the Commissioner's order revoking respondent's driver's license for one year is reinstated.\\nREVERSED.\"}"

minn/10664750.json

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+"{\"id\": \"10664750\", \"name\": \"Anderson PURNELL, Petitioner, Appellant, v. COMMISSIONER OP PUBLIC SAFETY, Respondent\", \"name_abbreviation\": \"Purnell v. Commisioner of Public Safety\", \"decision_date\": \"1987-08-18\", \"docket_number\": \"No. C3-87-565\", \"first_page\": \"439\", \"last_page\": \"441\", \"citations\": \"410 N.W.2d 439\", \"volume\": \"410\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:20:25.833798+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered and decided by CRIPPEN, P.J., and LESLIE and LOMMEN , JJ.\", \"parties\": \"Anderson PURNELL, Petitioner, Appellant, v. COMMISSIONER OP PUBLIC SAFETY, Respondent.\", \"head_matter\": \"Anderson PURNELL, Petitioner, Appellant, v. COMMISSIONER OP PUBLIC SAFETY, Respondent.\\nNo. C3-87-565.\\nCourt of Appeals of Minnesota.\\nAug. 18, 1987.\\nTrygve A. Egge, Arden Hills, for appellant.\\nHubert H. Humphrey, III, Atty. Gen., Joel A. Watne, Spec. Asst. Atty. Gen., St. Paul, for respondent.\\nHeard, considered and decided by CRIPPEN, P.J., and LESLIE and LOMMEN , JJ.\\nActing as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. 6, \\u00a7 2.\", \"word_count\": \"1182\", \"char_count\": \"7161\", \"text\": \"OPINION\\nLESLIE, Judge.\\nAppellant Anderson Purnell was arrested for driving while under the influence of alcohol and his license was revoked for an implied consent violation. He petitioned for judicial review, contesting the validity of the stop and arguing that the officer did not have probable cause to believe he was driving while under the influence of alcohol. The trial court sustained the revocation, and Purnell appeals.\\nFACTS\\nAt approximately 5:10 a.m. on Sunday, December 28, 1986, a taxi cab driver flagged down a St. Paul police officer to inform him he had just seen a black man beating a black woman on a nearby street. The officer knew the address had a history of problems calling for police attention in the past.\\nThe officer immediately drove to the reported location, about six or seven blocks away, and arrived within two minutes. As he drove around the nearest corner to that address, he saw no one in the immediate vicinity, but saw a black pickup truck pulling away rapidly from the curb. Although he did not see the occupants and did not know whether they were black, the officer signaled the pickup truck to stop, \\\"suspecting\\\" the pickup might contain either persons involved in the reported assault, or possible witnesses to the assault.\\nThe driver, appellant Anderson Purnell, had an odor of alcohol on his breath. His speech was fast, mumbled and slurred, and his balance was poor and unstable. The officer also observed appellant's eyes were bloodshot. The officer conducted several field sobriety tests on appellant. Appellant failed them all.\\nThe officer determined appellant had been driving while under the influence of alcohol and placed him under arrest. Appellant's license was revoked for an implied consent violation, and he petitioned for judicial review. The only issues were whether the stop was valid and whether the officer had probable cause to believe that appellant was under the influence of alcohol. The trial court determined the stop was valid and that the officer had probable cause. Appellant Purnell appeals from the trial court's order.\\nISSUES\\n1. Did the police officer make a valid stop of appellant's pickup truck?\\n2. Did the police officer have probable cause to believe appellant had been driving while under the influence of alcohol?\\nANALYSIS\\nI.\\nAppellant challenges the validity of the stop of his vehicle contending the officer did not have reasonable and articulable grounds to make the stop. We disagree, finding Appelgate v. Commissioner of Public Safety, 402 N.W.2d 106 (Minn.1987) controlling.\\nIn Appelgate, an officer received a report at 2:25 a.m. of a burglary in progress at a large apartment complex. He immediately drove to the location and observed a vehicle coming from the complex within a few minutes of the report, at a time of day when there was \\\"very little if any\\\" traffic. The officer believed the driver probably saw him in his marked squad car. The driver made two prolonged stops at intersections. Id. at 107-08. Despite the fact that the officer had no description of the burglar or the get-away car, the supreme court upheld the stop and stated:\\nIn such a situation \\\"the police must have some authority to freeze the situation.\\\" Indeed, \\\"[e]ven if the circumstances are such that no one person can be singled out as the probable offender, the police must sometimes be allowed to take some action intermediate to that of arrest and nonseizure activity.\\\"\\nId. at 108 (citations omitted).\\nThe officer was entitled to rely upon the information which the cab driver, in a face-to-face confrontation, had given to him about the alleged assault. State v. Davis, 393 N.W.2d 179, 181 and n. 1 (Minn.1986). The alleged assault took place at approximately 5:00 a.m. The officer who arrived at the reported location within two minutes saw the black pickup truck pulling rapidly away from the curb on the west side of the street. While the appellant contests the accuracy of the officer's testimony that the truck pulled away from the curb \\\"kind of fast,\\\" because the description was not in his report, it was within the trial court's discretion to accept the credibility of the officer's testimony. The officer also testified that when he arrived at the location, which is on the east side of the street, it was dark and there were other vehicles parked on the street. He did not see any other vehicles driving north or south on the street. The appellant's vehicle traveled approximately 200 feet before the officer turned on his emergency lights; it did not weave, and it was not until the officer stopped the truck that he determined the individuals in the vehicle were black. The cab driver did not describe the truck as being involved in the incident.\\nDespite the fact that the officer did not have a description of the truck, he was justified in stopping appellant's vehicle and subjecting him to a limited investigative stop for purposes of \\\"freezing\\\" the situation. Appelgate, 402 N.W.2d at 109. It was early in the morning, the officer arrived on the scene promptly, there was no other traffic, and the truck pulled away from a location near the reported assault. The officer properly stopped appellant's vehicle.\\nII.\\nThe appellant also claims the officer did not have probable cause to believe he was under the influence. The trial court found that the officer noted appellant had an odor of an alcoholic beverage on his breath, his speech was fast, mumbled, and slurred, and his balance was poor and unstable. At the police station the officer noted that appellant's eyes were bloodshot. Appellant failed several field sobriety tests which the officer gave to him.\\nAppellant argues that the officer's observations and the field tests were suspect because he had suffered a head injury and asserts the officer should have taken him to a hospital for a medical examination. He contends that if the officer was then confident that his delayed responses were a result of alcohol impairment rather than the head injury, he could have then obtained a test.\\nThe indicia of intoxication which the officer observed were sufficient to provide probable cause to believe he was driving while under the influence. Holtz v. Commissioner of Public Safety, 340 N.W.2d 363, 365 (Minn.Ct.App.1983). Even if there are valid exculpatory explanations for the indicia of intoxication, the officer may still consider those facts in assessing the totality of the circumstances and determining probable cause. State v. Olson, 342 N.W.2d 638, 640 (Minn.Ct.App.1984).\\nDECISION\\nThe police officer made a valid investigatory stop under Appelgate and had probable cause to believe appellant was driving under the influence of alcohol.\\nAffirmed.\"}"

minn/10664880.json

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+"{\"id\": \"10664880\", \"name\": \"Naemi DEMNING, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE, Respondent\", \"name_abbreviation\": \"Demning v. Grain Dealers Mutual Insurance\", \"decision_date\": \"1987-09-08\", \"docket_number\": \"No. C9-87-358\", \"first_page\": \"571\", \"last_page\": \"574\", \"citations\": \"411 N.W.2d 571\", \"volume\": \"411\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:17:52.741388+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by FOLEY, P.J., and PARKER and SEDGWICK, JJ., with oral argument waived.\", \"parties\": \"Naemi DEMNING, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE, Respondent.\", \"head_matter\": \"Naemi DEMNING, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE, Respondent.\\nNo. C9-87-358.\\nCourt of Appeals of Minnesota.\\nSept. 8, 1987.\\nThomas A. Klint, Babcock, Locher, Neil-son & Mannella, Anoka, for appellant.\\nRobert E. Salmon, Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Minneapolis, for respondent.\\nConsidered and decided by FOLEY, P.J., and PARKER and SEDGWICK, JJ., with oral argument waived.\", \"word_count\": \"1996\", \"char_count\": \"12114\", \"text\": \"OPINION\\nPARKER, Judge.\\nAppellant Naemi Demning filed suit against her insurer, respondent Grain Dealers Mutual Insurance, seeking no-fault economic loss benefits for injuries she suffered in an automobile accident. The trial court ruled that she was entitled to the benefits, but that they were offset by social security disability benefits she had been receiving. We affirm in part, reverse in part, and modify.\\nFACTS\\nNaemi Demning held various full-time jobs for most of the period from 1953 to 1976. In the fall of 1976, however, she was diagnosed as having multiple sclerosis and was forced to quit working. At that time, she was employed as a produce wrapper, earning $4.77 hourly. After the diagnosis, Demning began receiving social security disability benefits, which amounted to $358 per month by December 1980. In late 1979 Demning's multiple sclerosis symptoms subsided, and in April 1980 she began working about 23 hours per week as a drug store cashier, earning $3.10 hourly. In August 1980 she quit that job and has not worked since.\\nOn December 5, 1980, Demning was a passenger in a car that was rear-ended at a stop light. As a result of the accident, her back and neck were injured and she eventually underwent back surgery. Demn-ing's movement is still severely restricted; for example, she can sit for only 20 minutes at a time, or stand for 15 minutes, and can walk only about one and a half blocks. After the accident, her physician advised her not to work due to her injuries.\\nIn July 1983 Demning's physician examined her again and determined that she had recovered sufficiently to return to work. In December 1983 he advised her to do so, but after unsuccessfully attempting to increase her activity, Demning decided that she could not work and did not seek employment.\\nIn 1984 Demning submitted a claim to her insurer, Grain Dealers Mutual, for economic loss benefits. When the insurer refused payment, she brought this action. At trial Demning claimed she had planned on returning to work in the spring of 1981, but had been unable to do so because of the car accident. The insurer argued that Demning was unemployed due to her multiple sclerosis, not the car accident. In the alternative, the insurer argued that Demn-ing's economic loss benefits should be offset by the social security benefits she was receiving.\\nTo show that Demning's multiple sclerosis would have prevented her from working, the insurer pointed out that Demning had quit her last job four months before the auto accident occurred. When asked why she had quit that job after only four months, Demning testified:\\nI understood that if you were employed nine months you automatically lose your benefits. So we decided that I'd work part of 1980 and I didn't feel at that time that I could work full-time, so I decided to quit my job and resume it in 1981, and at that time, I was hoping I could go full-time and get off social security.\\nDemning further testified that she could have handled a full-time job in the spring if not for the accident, because she had no trouble working eight hours per day at the drug store.\\nThe manager at the drug store where Demning had worked testified that his notes indicated Demning had left the store for health reasons. Although he had not held a job open for her after she left, he testified that Demning had been an excellent employee and that he would have rehired her if he had a future opening. He further testified that his store had an opening approximately every six months.\\nThe trial court concluded that Demning was unable to work from the date of the accident until December 1983 as a direct and proximate result of the injuries she suffered in the car accident and was therefore entitled to economic loss benefits of $306.59 per month (23 hours at $3.10 per hour x 4.3 weeks/month). However, the court ruled those benefits were completely offset by her $358 monthly social security disability benefits and therefore entered judgment for the insurer. Demning's post-trial motions were denied, and she appeals. The insurer has also filed a notice of review, arguing that the trial court erred in ruling that Demning was entitled to the economic loss benefits as a threshold matter.\\nISSUES\\n1. Was Demning entitled to economic loss benefits?\\n2. If so, were such benefits offset by her receipt of social security disability benefits?\\nDISCUSSION\\nI\\nMinn. Stat. \\u00a7 65B.44, subd. 3 (1980), provides that\\n[disability and income loss benefits shall provide compensation for 85% of the injured person's loss of present and future gross income and inability to work proximately caused by the non-fatal injury subject to a maximum of $200.00 per week.\\nBy ruling that Demning was entitled to these benefits, the trial court implicitly found that Demning would have been able to resume work if not for the accident, despite her pre-existing medical problems.\\n[I]f the injured person can demonstrate that at an appropriate period of time, employment would have been obtained but for the injury, disability income loss benefits should be payable. [Economic loss benefits] should be payable if the injured person can prove he had an offer of employment that would have been accepted but for the injury .\\nM. Steenson, Minnesota No-Fault Automobile Insurance at 53-54 (1982) (footnotes omitted). See also Kennedy v. Auto Owners Insurance Company, 87 Mich. App. 93, 273 N.W.2d 599, 601 (1979) (claimant entitled to economic loss benefits under Michigan's \\\"temporarily unemployed\\\" provision when he showed that he \\\"would have been employed part-time but for the injuries\\\" and that he suffered a loss of income as a result of that injury).\\nWhether Demning would have returned to work if not for the car accident presents a factual issue. The trial court, in its conclusions of law, found that \\\"as a direct and proximate cause of her injuries received on December 5,1980, Plaintiff was not able to return to work until December, 1983; and that as a result Plaintiff incurred a loss of future wages [of] $306.59 per month.\\\" In its memorandum of law, the court found \\\"there was sufficient evidence to show that Plaintiff intended to return to some type of work in early 1981,\\\" but that she was \\\"forestalled from seeking employment because of injuries received in the December 1980 accident.\\\" Although the trial court did not include these determinations in its findings, facts stated in a memorandum that are made a part of the court's decision, and which are consistent with the facts specifically found, become a part of the findings. Sime v. Jensen, 213 Minn. 476, 7 N.W.2d 325 (1942); see Minn. R.Civ.P. 52.01.\\nDemning testified that she planned to return to work in the spring of 1981. The store manager testified that if there were an opening at that time, he would have rehired her and that the turnover rate for clerks is quite high and he has periodic openings. Viewed in the light most favorable to Demning (as the prevailing party below on this issue), this evidence reasonably supports the trial court's determination that she would have been able to return to work but for the automobile accident. Therefore, the trial court's ruling will not be set aside. See Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn.1977). This court is obliged to accept findings that are based primarily on the relative credibility of the parties and witnesses whose testimonial demeanor the trial judge was able to observe and evaluate. Donaldson v. Kohner, 264 Minn. 230, 233, 118 N.W.2d 446, 448 (1962); see also In re Estate of Balafas, 293 Minn. 94, 198 N.W.2d 260 (1972) (reviewing court must give due regard to trial court's opportunity to judge witness credibility). The trial court's determination of Demning's entitlement to economic loss benefits from the date of the accident to December 1983 must be modified to comport with the testimony of her physician that she had recovered sufficiently to return to work in July 1983.\\nII\\nHaving determined that Demning was eligible for economic loss benefits, we must next determine whether those benefits were properly offset by her social security benefits, as the trial court ruled. Because this issue presents a question of law, we need not defer to the trial court's determination. Van de Loo v. Van de Loo, 346 N.W.2d 173, 175 (Minn.Ct.App.1984).\\nMinn.Stat. \\u00a7 65B.61, subd. 1 (1980), provides that \\\"[b]asic economic loss benefits shall be primary with respect to benefits, except for those paid or payable under a workers' compensation law See Steenson, supra, at 72 (\\\"Only if the injured person is covered by worker's compensation or medicare benefits may there be an offset from economic loss benefits\\\"). This explicit exception came into play in Griebel v. Tri-State Insurance Co., 311 N.W.2d 156 (Minn.1981), in which the supreme court determined that \\\"when a claimant receives benefits under no-fault and workers' compensation, the legislature has indicated that the no-fault benefits must be reduced by the amount of workers' compensation benefits paid.\\\" Id. at 159.\\nAlthough worker's compensation benefits may be offset by economic loss benefits under section 65B.61, subd. 1, there is no similar provision for social security disability benefits. Minn. Stat. \\u00a7 645.19 (1980) dictates that exceptions in a statute are to be construed to exclude all other exceptions. Therefore, we hold that economic loss benefits are not to be offset by social security disability benefits.\\nOur holding is consistent with previous cases involving the coordination of benefits under multiple insurance policies. In Wallace v. Tri-State Insurance Co., 302 N.W.2d 337 (Minn.1980), the supreme court held that an insurer had no right to coordinate its own obligations with amounts paid by another insurer:\\nIf the legislature had intended to allow [the insurer] to defer its payment of benefits because of the existence of health insurance covering the same losses, it would have written such an exception into \\u00a7 65B.61, subd. 1.\\nId. at 339. See also Hoeschen v. Mutual Service Casualty Insurance Co., 359 N.W.2d 677, 680 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. March 6, 1985) (\\\"the no-fault insurers may not coordinate benefits with those paid by the army, nor may they offset their own obligation with the amounts paid by the army\\\").\\nDECISION\\nThe trial court did not err in determining that Demning was entitled to economic loss benefits, but her entitlement is modified from December 5, 1983, to July 1983. The trial court erred in ruling that such benefits should be offset by her social security security benefits.\\nAffirmed in part, reversed in part, and modified.\\n. The insurer cites two decisions in support of its assertion that this issue presents a question of law that is reviewable on a de novo basis. Neither case, however, has anything to do with eligibility for economic loss benefits. Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476 (Minn.1985), was a libel action in which the issues were whether the plaintiff was a public figure and whether the defendant newspaper had displayed actual malice. The other case cited, Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn.1977), was a breach of warranty case arising out of the sale of an automobile.\\n. In its brief, the insurer mischaracterizes the holding of Wallace. It claims that the court held that the insurer, as a legal entity, could coordinate benefits under section 65B.61, subd. 3. As discussed above, the court actually held the opposite: \\\"Tri-State, as a reparation obligor, has no right to coordinate its benefits with Federated's. This is clear from the language of Minn. Stat. \\u00a7 65B.61, subd. 3 (1978).\\\" Id. (emphasis added).\"}"

minn/10667927.json

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+"{\"id\": \"10667927\", \"name\": \"In re the Marriage of Robin FLINCK, petitioner, Respondent, v. Tanya FLINCK, Appellant\", \"name_abbreviation\": \"Marriage of Flinck v. Flinck\", \"decision_date\": \"1984-07-17\", \"docket_number\": \"No. C7-84-67\", \"first_page\": \"401\", \"last_page\": \"402\", \"citations\": \"351 N.W.2d 401\", \"volume\": \"351\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:22:43.586034+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., and NIERENGARTEN and RANDALL, JJ., with oral argument waived.\", \"parties\": \"In re the Marriage of Robin FLINCK, petitioner, Respondent, v. Tanya FLINCK, Appellant.\", \"head_matter\": \"In re the Marriage of Robin FLINCK, petitioner, Respondent, v. Tanya FLINCK, Appellant.\\nNo. C7-84-67.\\nCourt of Appeals of Minnesota.\\nJuly 17, 1984.\\nH.R. Chalupsky, Chalupsky, Nyberg & Hawkinson, Ltd., Grand Rapids, for respondent.\\nThomas Butorac, Legal Aid Service of Northeast Minnesota, Virginia, for appellant.\\nConsidered and decided by POPOVICH, C.J., and NIERENGARTEN and RANDALL, JJ., with oral argument waived.\", \"word_count\": \"555\", \"char_count\": \"3427\", \"text\": \"OPINION\\nPOPOVICH, Chief Judge.\\nFollowing a dissolution hearing, the court granted custody of the parties' two-year-old son to the father, and the mother appeals. We affirm.\\nFACTS\\nThe parties were married on December 9, 1981, and their only child, Jesse, was born shortly thereafter. Tanya Flinck has custody of one other child from a previous marriage. During the parties' marriage, the family lived in Minnesota.\\nIn February, 1983, Tanya, Robin, and the children drove to Oregon to visit Tanya's mother. During the visit, Robin and Tanya quarreled and Robin returned to Minnesota alone. In June, Robin filed a marriage dissolution petition. Tanya and the children remained in Oregon.\\nTanya returned to Minnesota for the dissolution hearing in November, 1983, but did not bring Jesse with her, even though she could have done so at no cost and even though Jesse had not seen his father since February. At the hearing, both parents sought custody and both testified to their fitness as a parent. The court ordered a home study of each parent. The investigator's study of Robin's home indicated Robin had no significant problems which would interfere with his ability to care for his son and he would be an adequate parent. The study of Tanya's home was never completed because Oregon officials would not cooperate and a private study could not be arranged.\\nISSUE\\nDid the trial court abuse its discretion in granting custody of the minor child to the father?\\nANALYSIS\\nA trial court has the opportunity to view the parties and hear their testimony and so has broad discretion in determining custody. The trial court's custody decision will not be set aside unless it was a clear abuse of discretion or was arbitrary. LaBelle v. LaBelle, 296 Minn. 173, 175, 207 N.W.2d 291, 292 (1973); Warden v. Warden, 286 Minn. 543, 544, 176 N.W.2d 121, 122 (1970); see also Peterson v. Peterson, 308 Minn. 365, 368, 242 N.W.2d 103, 106 (1976). Here, the trial court stated it made the custody determination based on the best interest of the child as determined by application of the nine factors listed in Minn. Stat. \\u00a7 518.17, subd. 1 (1982). Since the court based its decision on the appropriate statutory provision and since there is evidence in the record, including testimony of Robin's relationship with the child and Robin's home study, supporting the court's determination, we cannot say the trial court abused its discretion.\\nTanya claims she was denied her statutory opportunity to cross-examine the investigator who conducted the home study of Robin. Minn.Stat. \\u00a7 518.167, subd. 3 (1982). Her claim is without merit. The trial court ordered the studies at the dissolution hearing. Recognizing the parties' right of cross-examination with respect to the studies, the court also informed the parties of their right to demand a hearing to cross-examine the investigators. No such hearing was ever demanded.\\nDECISION\\nThe trial court did not err in granting custody of the parties' minor child to the father.\\nAffirmed.\"}"

minn/10668977.json

@@ -0,0 +1 @@
+"{\"id\": \"10668977\", \"name\": \"Richard John THORUD, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent; and Cathleen Joyce CHRISTENSON, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent\", \"name_abbreviation\": \"Thorud v. Commissioner of Public Safety\", \"decision_date\": \"1984-06-12\", \"docket_number\": \"Nos. C7-83-1824, C9-83-1825\", \"first_page\": \"343\", \"last_page\": \"345\", \"citations\": \"349 N.W.2d 343\", \"volume\": \"349\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:24:29.922143+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by WOZNIAK, P.J., HUSPENI and NIEREN-GARTEN, JJ.\", \"parties\": \"Richard John THORUD, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent, and Cathleen Joyce CHRISTENSON, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.\", \"head_matter\": \"Richard John THORUD, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent, and Cathleen Joyce CHRISTENSON, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.\\nNos. C7-83-1824, C9-83-1825.\\nCourt of Appeals of Minnesota.\\nJune 12, 1984.\\nRalph S. Palmer, Roseville, for Thorud and Christenson.\\nHubert H. Humphrey, III Atty. Gen., Donald J. Paquette, Sp. Asst. Atty. Gen., St. Paul, for Com\\u2019r of Public Safety.\\nHeard, considered, and decided by WOZNIAK, P.J., HUSPENI and NIEREN-GARTEN, JJ.\", \"word_count\": \"876\", \"char_count\": \"5502\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nAppellants Thorud and Christenson seek to reverse a determination that the petitions for review of their driver's license revocations were not timely filed. We affirm.\\nFACTS\\nOn July 14, 1983, Thorud and Christen-son were involved in a single incident and were arrested for D.W.I. After refusing to take breathalyzer tests, both were sent notices and orders of revocation of their driving licenses pursuant to Minn.Stat. \\u00a7 169.123(5c) (1982). Accordingly, they had 30 days to file for review:\\nWithin 30 days following receipt of a notice and order of revocation pursuant to this section, a person may petition the court for review. The petition shall be filed with the clerk of county or municipal court in the county where the alleged offense occurred, together with proof of service of a copy on the commissioner of public safety, and accompanied by the standard- filing fee for civil actions.\\nMinn.Stat. \\u00a7 169.123(5c) (1982).\\nTwenty-nine days later, on Thursday, August 11, 1983, a law clerk, employed by Thorud's and Christenson's counsel, attempted to file their petitions with Henne-pin County Municipal Court. Lynn Mang-es, a senior court deputy, asked the law clerk where the incident occurred. He did not know. She took the money and petitions in hand and checked a computer for the arrest information. This information is used to designate the court in which the case will be heard. Unable to obtain the information, Manges returned to the counter.\\nThe law clerk testified that Manges would not accept the petitions without the background information. Manges testified that she twice told the law clerk that the petitions could be filed at that time, and that the other information would be acceptable at a later date. She testified that this was usual procedure.\\nRegardless, the petitions and money were returned to the law clerk. Having obtained background information in the interim, he returned eight days later, on August 19, to file the petitions \\u2014 the 37th day. The law clerk testified that he knew about the thirty-day rule when he originally attempted to file.\\nBased on the above, the court found that the petitions were not timely filed.\\nISSUE\\nWas the trial judge's finding that the petitions for Thorud and Christenson were not timely filed clearly erroneous?\\nANALYSIS\\nOn review, factual findings are not set aside unless they are clearly erroneous, State, Dep't of Highways v. Beckey, 291 Minn. 483, 487, 192 N.W.2d 441, 445 (1971), \\\"and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses,\\\" Minn.R.Civ.P. 52.01.\\nThe court was entitled to believe Manges that she did not reject the petitions offered by the law clerk. Her testimony was credible; she had less personal interest in this case than the law clerk. Thus, the findings based on her testimony were not clearly erroneous.\\nWere the law clerk confused, he and his employing attorney had yet another day to remedy the situation. They were aware of the thirty-day rule. Their neglect to file by the thirtieth day left the court without jurisdiction. See, Qualley v. Commissioner of Pub. Safety, 349 N.W.2d 305 (Minn.Ct.App.1984); cf. Swicker v. Ryan, 347 N.W.2d 367 (Minn.Ct.App.1984) (law clerk's misinterpretation of time limits no excuse).\\nOur Supreme Court has observed in similar circumstances:\\nThe 30-day period for pre-revocation hearing requests is a jurisdictional limitation upon the trial court, where, as here, notice of intended revocation is adequate. Although the result seems harsh in the case at bar, since it was not the fault of respondent that the hearing request which he had left with his attorney was not forwarded to the Commissioner of Public Safety within the 30-day period, the district court was without jurisdiction to extend the limitation period. The harshness is mitigated by respondent's entitlement to a full post-revocation hearing, under Minn.Stat. \\u00a7 171.19 (1980), in which he may challenge the merits as well as the procedure of revocation.\\nWinchester v. Commissioner of Pub. Safety, 306 N.W.2d 899, 900 (Minn.1981). Minn.Stat. \\u00a7 171.19 has been changed since the Winchester decision and the petition for reinstatement procedure in the district court no longer is available for revocation under this section. Recognizing this, we recently commented:\\nIf the result now seems harsh, it is a criticism that may be levelled against many statutes of limitation. Furthermore, as a matter of public policy D.W.I. laws, including the implied consent statute, are liberally construed in the public's favor and are strictly applied.\\nQualley, slip op. at 3 (Minn.Ct.App., May 22, 1984).\\nDECISION\\nIn view of the testimony and the established interpretation of Minn.Stat. \\u00a7 169.-123(5c) (1982), the court did not err in finding that the petitions were not timely filed.\\nWe affirm.\\n. However, an administrative review by the Commissioner of Public Safety is available under Minn.Stat. \\u00a7 169.123(5b) (1982).\"}"

minn/10671072.json

@@ -0,0 +1 @@
+"{\"id\": \"10671072\", \"name\": \"Glenn S. PARSON, et al., Respondents, v. Helen ARGUE, Appellant\", \"name_abbreviation\": \"Parson v. Argue\", \"decision_date\": \"1984-02-22\", \"docket_number\": \"No. CX-84-46\", \"first_page\": \"431\", \"last_page\": \"432\", \"citations\": \"344 N.W.2d 431\", \"volume\": \"344\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T02:20:23.936224+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., PARKER and WOZNIAK, JJ.\", \"parties\": \"Glenn S. PARSON, et al., Respondents, v. Helen ARGUE, Appellant.\", \"head_matter\": \"Glenn S. PARSON, et al., Respondents, v. Helen ARGUE, Appellant.\\nNo. CX-84-46.\\nCourt of Appeals of Minnesota.\\nFeb. 22, 1984.\\nRichard R. Doran, Columbia Heights, for appellant.\\nBarry L Blomquist, North Branch) for respon(jents.\\nConsidered and decided by POPOVICH, C.J., PARKER and WOZNIAK, JJ.\", \"word_count\": \"529\", \"char_count\": \"3135\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nPOPOVICH, Chief Judge.\\nFacts\\nThis matter arises out of a dispute of a real estate sale in Chisago County. An order for summary judgment was granted to respondents July 15, 1983. Appellant Argue then sought amended findings of fact, conclusions of law, and order or a new trial. That motion was denied on December 2, 1983 and the order was served on appellant on December 9, 1983.\\nOn January 6, 1984, this appeal was filed. The notice of appeal states that the appeal is taken pursuant to Rule 103.03(e), Minn.R.Civ.App.P. Respondents now seek dismissal of the appeal as from a non-ap-pealable order.\\nAnalysis\\n1. Appellant said the appeal is taken pursuant to Rule 103.03(e) which provides for appeal from an order \\\"which, in effect, determines the action and prevents a judgment from which an appeal might be taken.\\\"\\n2. In the author's comments to Rule 103.03, Minn.R.Civ.App.P., Hetland and Ad-amson said:\\n\\\"If there never was a trial (i.e., dismissal prior to trial, summary judgment, etc.), a motion for a 'new trial' is an anomaly and an order denying such a motion is not appealable. Samels v. Samels, 174 Minn. 133, 218 N.W.2d [N.W.] 546 (1928); Dodge v. Bell, 37 Minn. 382, 34 N.W.2d [N.W.] 739 (1887).\\\" Hetland & Adam-son, Minnesota Practice, Volume 3, at 279.\\n3. In Frontier Lumber and Hardware, Inc. v. Dickey, 289 Minn. 162, 183 N.W.2d 788 (1971), the Minnesota Supreme Court held that an order denying a motion to vacate summary judgment is non-appeala-ble because it would have been reviewable by appeal from the judgment.\\n4. Although the motion of appellant before the trial court was termed a motion for a new trial, because there was no trial it was, in effect, a motion to vacate the summary judgment. An order denying such a motion is not appealable.\\n5. In Weinzierl v. Lien, 296 Minn. 539, 209 N.W.2d 424 (1973), the supreme court held that an order is not appealable unless it, in effect, finally determines the action or finally determines some positive legal right of the appellant relating to the action. Howev\\u00e9r, the court stated that an order reinstating findings of fact, conclusions of law and an order for judgment cannot be given a different effect than one denying a motion to amend such an order. The court then dismissed the appeal from the order reinstating the findings.\\n6.The December 2 order of the trial court denying the motion for amended findings of fact, conclusions of law, judgment or new trial does not fall within the parameters of Rule 103.03(e) as it merely upheld the order for summary judgment of July 15, 1983.\\nDecision and Order\\nThe order of the trial court denying appellant's motion for amended findings of fact, conclusions of law, judgment or new trial dated December 2, 1983 is non-appeal-able. This appeal, not being from the judgment itself, is dismissed.\"}"

minn/10671116.json

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+"{\"id\": \"10671116\", \"name\": \"James Brian DREWES, Respondent, v. Leonard W. LEVINE, Commissioner of Human Services, Respondent, Itasca County, Appellant\", \"name_abbreviation\": \"Drewes v. Levine\", \"decision_date\": \"1985-05-07\", \"docket_number\": \"No. C1-85-141\", \"first_page\": \"719\", \"last_page\": \"721\", \"citations\": \"366 N.W.2d 719\", \"volume\": \"366\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:15:06.203757+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., and FORSBERG and LESLIE, JJ., with oral argument waived.\", \"parties\": \"James Brian DREWES, Respondent, v. Leonard W. LEVINE, Commissioner of Human Services, Respondent, Itasca County, Appellant.\", \"head_matter\": \"James Brian DREWES, Respondent, v. Leonard W. LEVINE, Commissioner of Human Services, Respondent, Itasca County, Appellant.\\nNo. C1-85-141.\\nCourt of Appeals of Minnesota.\\nMay 7, 1985.\\nReview Denied July 11, 1985.\\nDavid C. Moody, Schmidt, Thompson, Thompson & Johnson, P.A., Willmar, for Drewes.\\nHubert H. Humphrey, III, Atty. Gen., Ruth Mickelsen, Sp. Asst. Atty. Gen., St. Paul, for Leonard W. Levine.\\nJohn P. Dimich, Itasca County Atty., Jim Mason, Asst. County Atty., Grand Rapids, for appellant.\\nConsidered and decided by POPOVICH, C.J., and FORSBERG and LESLIE, JJ., with oral argument waived.\", \"word_count\": \"1090\", \"char_count\": \"6902\", \"text\": \"OPINION\\nPOPOVICH, Chief Judge.\\nRespondent previously appealed from the denial of his petition for discharge from commitment. Drewes v. Levine, 352 N.W.2d 456 (Minn.Ct.App.1984). We reversed for lack of factual findings, established the burden of proof to obtain discharge, and remanded. The parties then agreed a new petition for discharge would be heard de novo. The appeal panel ordered respondent discharged because he was not mentally ill and his dangerousness did not result from mental illness. We reverse and remand.\\nFACTS\\nDrewes, a 49 year old man, was committed to the St. Peter Security Hospital in August 1981 as manic depressive and chemically dependent. He petitioned the Commissioner of Public Welfare (now Human Services) for discharge. The petition was denied and the supreme court appeal panel affirmed, retaining jurisdiction for one year to monitor placement. We reversed concluding Drewes must meet the statutory criteria for discharge and that the panel must make factual findings in support of their decision.\\nA new petition for discharge dated July 18, 1984 was heard on August 31, 1984. The panel, in a split decision, found (a) Drewes was not mentally ill, (b) that he may not have been mentally ill when committed, (c) that he suffers from a character disorder (anti-social personality), and (d) he abuses chemicals. The appeal panel concluded his dangerousness did not result from mental illness and ordered discharge. The committing county appeals, arguing the statutory criteria for discharge should have been considered.\\nISSUES\\n1. Does a nonparticipating committing county have standing to appeal a discharge order?\\n2. Was respondent properly discharged when the appeal panel concluded he was not dangerous as a result of mental illness?\\nANALYSIS\\n1. A patient committed as mentally ill and dangerous may file a petition for discharge to be heard by the special review board. Minn.Stat. \\u00a7 253B.18, subd. 5 (1984). The Commissioner of Human Services must issue a decision within 14 days after receiving the board's recommendation. Id. \\\"The committed person or the county attorney of the county from which\\\" the patient was committed may petition a judicial appeal panel for reconsideration of the commissioner's decision. Minn.Stat. \\u00a7 253B.19, subd. 2.\\nA party aggrieved by an order of the appeal panel may appeal from the decision of the appeal panel to the court of appeals as in other civil cases.\\nId., subd. 5.\\nThe commissioner appeared before the appeal panel, but Itasca County did not participate. The county now appeals from the appeal panel decision. Respondent argues the county lacks standing since it did not appear before the panel. We do not agree.\\nThe county advocates the commissioner's position. There is no surprise, and this is essentially a substitution of counsel. It would be inefficient to require the committing county to appear before the appeal panel to make the same arguments as the commissioner merely to protect its right to appeal an adverse decision. Substitution of the committing county does not prejudice the patient. The county is an aggrieved party and may assert its interest on appeal.\\n2. A patient committed as mentally ill and dangerous shall not be discharged unless it appears the patient:\\n(1) is capable of making an acceptable adjustment to open society;\\n(2) is no longer dangerous to the public; and\\n(3) is no longer in need of inpatient treatment and supervision.\\nSee Minn.Stat. \\u00a7 253B.18, subd. 15 (1984). The commissioner must also \\\"consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community.\\\" Id.\\nThe appeal panel'found Drewes remains dangerous to the public but not as. a result of mental illness. It also found Drewes \\\"has the potential to make an acceptable ' adjustment to society upon release if he abstains from alcohol.\\\" The panel concluded Drewes must be discharged because he was no longer mentally ill \\\"even though his potential for dangerousness continues to exist.\\\" Itasca County contends the discharge should be reversed and remanded for findings whether Drewes meets the statutory criteria for discharge. We agree.\\nWe previously interpreted the patient's burden to obtain discharge from commitment in Reome v. Levine, 350 N.W.2d 428 (Minn.Ct.App.1984) (Reome I). There, the judicial appeal panel, with one judge dissenting, discharged Reome after concluding he suffered from a character disorder and not a mental illness. We affirmed, and the commissioner petitioned the supreme court for review.\\nThe supreme court remanded for reconsideration in light of Enebak v. Noot, 353 N.W.2d 544 (Minn.1984), decided after Reome. See Reome v. Levine, 361 N.W.2d 29 (Minn.1985). Enebak was committed as a psychopathic personality subject to the same provisions as persons committed as mentally ill and dangerous. See Minn.Stat. \\u00a7 253B.02, subd. 17 (1984). Like Reome and Drewes, Enebak was diagnosed as having an anti-social personality but no major mental illness. The Enebak court held the statutory criteria must be addressed rather than the factors in Johnson v. Noot, 323 N.W.2d 724 (Minn.1982). Enebak, 353 N.W.2d at 547. Johnson, which was decided under the prior commitment statute, construed the discharge criteria \\\"to mean that the patient is either no longer mentally ill or no longer dangerous.\\\" Johnson, 323 N.W.2d at 728.\\nBecause the supreme court explicitly rejected the Johnson analysis upon which we relied in Reome I, we vacated our decision and remanded to the appeal panel for consideration of the statutory discharge criteria. Reome v. Levine, 363 N.W.2d 107 (Minn.Ct.App.1985) (Reome II).\\nSimilarly, the appeal panel in this matter did not address Drewes' need for further treatment and supervision or examine the conditions which may protect the public and assist Drewes in adjusting to open society. It found Drewes \\\"may now be dangerous in the ordinary sense of the word.\\\" If Drewes remains dangerous to the public, he \\\"shall not be discharged.\\\" Minn.Stat. \\u00a7 253B.18, subd. 15 (1984).\\nDECISION\\nThe supreme court appeal panel must address the statutory factors. Only if respondent demonstrates that he meets the criteria of Minn.Stat. \\u00a7 253B.18, subd. 15 may he be discharged.\\nReversed and remanded.\"}"

minn/10681401.json

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+"{\"id\": \"10681401\", \"name\": \"Steven A. VOLSTAD, Petitioner, Appellant, v. STATE of Minnesota, Respondent\", \"name_abbreviation\": \"Volstad v. State\", \"decision_date\": \"1981-04-24\", \"docket_number\": \"No. 51952\", \"first_page\": \"649\", \"last_page\": \"650\", \"citations\": \"304 N.W.2d 649\", \"volume\": \"304\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:21:59.972118+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Steven A. VOLSTAD, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\", \"head_matter\": \"Steven A. VOLSTAD, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\\nNo. 51952.\\nSupreme Court of Minnesota.\\nApril 24, 1981.\\nWilliam R. Kennedy, Hennepin County Public Defender, and David Knutson, Asst. Public Defender, Minneapolis, for appellant.\\nWarren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Michael McGlennen, Asst. County Attys., and Thomas A. Weist, Minneapolis, for respondent.\", \"word_count\": \"237\", \"char_count\": \"1538\", \"text\": \"YETKA, Justice.\\nPetitioner was convicted in 1978 of criminal sexual conduct in the first degree. We affirmed that conviction in State v. Volstad, 287 N.W.2d 660 (Minn.1980). Thereafter, petitioner sought postconviction relief from the conviction, claiming that the conviction violated the double jeopardy clause of the federal constitution because it was based on an act of sexual misconduct for which he had previously been punished in a criminal contempt proceeding. See People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 370 N.E.2d 797 (1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978). The postconviction court, after analyzing the record of the contempt proceeding, determined that although evidence of the act of sexual misconduct was admitted at the contempt hearing, the order was based not on that but on a specific finding that petitioner had committed an earlier assaultive act with his automobile against the same victim in violation of a court order. Our analysis of the record on appeal satisfies us that the district court did not err in that conclusion.\\nAffirmed.\"}"

minn/10683450.json

@@ -0,0 +1 @@
+"{\"id\": \"10683450\", \"name\": \"STATE of Minnesota ex rel. L.E.A., petitioner, Appellant (50619), State of Minnesota ex rel. S.P., petitioner, Appellant (50620), State of Minnesota ex rel. C.S., petitioner, Appellant (50621), State of Minnesota ex rel. K.H., petitioner, Appellant (50622), State of Minnesota ex rel. K.H., petitioner, Appellant (50623), v. Donald HAMMERGREN, Superintendent, Hennepin County Juvenile Detention Facility, Woodview, Respondent, Donald Omodt, Hennepin County Sheriff, Defendant (50619)\", \"name_abbreviation\": \"State ex rel. L.E.A. v. Hammergren\", \"decision_date\": \"1980-06-20\", \"docket_number\": \"Nos. 50619-50623\", \"first_page\": \"705\", \"last_page\": \"709\", \"citations\": \"294 N.W.2d 705\", \"volume\": \"294\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:36:17.317882+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before SHERAN, C. J., PETERSON, and TODD, JJ., and considered and decided by the court en banc.\", \"parties\": \"STATE of Minnesota ex rel. L.E.A., petitioner, Appellant (50619), State of Minnesota ex rel. S.P., petitioner, Appellant (50620), State of Minnesota ex rel. C.S., petitioner, Appellant (50621), State of Minnesota ex rel. K.H., petitioner, Appellant (50622), State of Minnesota ex rel. K.H., petitioner, Appellant (50623), v. Donald HAMMERGREN, Superintendent, Hennepin County Juvenile Detention Facility, Woodview, Respondent, Donald Omodt, Hennepin County Sheriff, Defendant (50619).\", \"head_matter\": \"STATE of Minnesota ex rel. L.E.A., petitioner, Appellant (50619), State of Minnesota ex rel. S.P., petitioner, Appellant (50620), State of Minnesota ex rel. C.S., petitioner, Appellant (50621), State of Minnesota ex rel. K.H., petitioner, Appellant (50622), State of Minnesota ex rel. K.H., petitioner, Appellant (50623), v. Donald HAMMERGREN, Superintendent, Hennepin County Juvenile Detention Facility, Woodview, Respondent, Donald Omodt, Hennepin County Sheriff, Defendant (50619).\\nNos. 50619-50623.\\nSupreme Court of Minnesota.\\nJune 20, 1980.\\nWilliam R. Kennedy, County Public Defender, and Patrick J. Sullivan, Asst. Public Defender, Minneapolis, for appellants.\\nThomas L. Johnson, County Atty., and David W. Larson, Asst. County Atty., Minneapolis, for respondent.\\nLinda J. Gallant, Minneapolis, Coalition for the Protection of Youth Rights, Amicus Curiae.\\nHeard before SHERAN, C. J., PETERSON, and TODD, JJ., and considered and decided by the court en banc.\", \"word_count\": \"2058\", \"char_count\": \"13099\", \"text\": \"SHERAN, Chief Justice.\\nPetitioners appeal from dismissal of their petition for habeas corpus in the Fourth Judicial District. Petitioners sought habeas corpus claiming they were wrongfully being held in the Hennepin County Detention Center for contempt of court. The lower court reasoned that under Minn. Stat. \\u00a7 260.301 and 588.01, subd. 3 (1978), the court has the power to find status offenders in constructive contempt of court for failing to comply with court orders and that In re Welfare of R.L.W., 309 Minn. 489, 245 N.W.2d 204 (1976) permits confinement in any center authorized by the Juvenile Court Act. Consequently, the lower court found that detention in the secure facility was appropriate and dismissed the petition.\\nThe issue raised by this case is whether, despite the language of Minn. Stat. \\u00a7 260.-173, subd. 3 (1978) stating that wayward children shall be placed in shelter care facilities only, status offenders can be held in secure detention centers after being found in constructive contempt of court for failing to comply with court orders.\\nAlthough each petitioner's case presents a slightly different fact pattern, the parties stipulated to the following common factors. At separate times, the juveniles were each charged with being wayward and habitually disobedient within the meaning of Minn. Stat. \\u00a7 260.015 (1978). Thereafter, they were each charged with constructive contempt of court under Minn. Stat. \\u00a7 588.01, subd. 3(3) (1978) for violating a court order by running away from a shelter care facility or failing to appear for a hearing. As a result of a finding of constructive contempt of court, each was incarcerated in the Hen-nepin County Juvenile Detention Center.\\nThe individual juveniles may no longer be held in a secure facility. Normally, this would render the case moot but, we find that the issue raised is \\\"capable of repetition but evading review\\\" and take jurisdiction. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976); Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). We make these observations notwithstanding the mootness which moves us to discharge the writ.\\nJuvenile courts have the authority to find a juvenile in contempt of court and to impose appropriate sanctions. But, given the Legislature's expressed disapproval of the practice of confining status offender juveniles in secure facilities, juvenile courts should not direct such confinement for contempt of court unless they first find specifically that there is no less restrictive alternative which could accomplish the court's purpose. In re Welfare of R.L.W., 309 Minn. 489, 245 N.W.2d 204 (1976); see also U. S. v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975).\\nMinn. Stat. \\u00a7 260.173, subd. 3 (1978) was amended by the Legislature in 1978 in Minn. Laws, ch. 637. The statute before the amendment stated that a child taken into custody by reason of being wayward or habitually disobedient who had previously escaped from a shelter care facility might be placed in a secure detention facility. Minn. Stat. \\u00a7 260.173 (1976). As amended, Minn. Stat. \\u00a7 260.173, subd. 3 (1978) states that a child taken into custody because of waywardness or habitual disobedience \\\"may be placed only in a shelter care facility\\\" even if she is conditionally released and has violated her field supervision. The language in the former statute authorizing the placement of these children in a secure detention facility was eliminated. The Hen-nepin County Juvenile Detention Center where these juveniles were incarcerated is a \\\"secure detention facility\\\" defined in Minn. Stat. \\u00a7 260.015, subd. 16 (1978) as a \\\"physically restricting detention facility, including a detention home.\\\"\\nThe amendment brought Minnesota into compliance with the funding requirements of the Law Enforcement Assistance Administration of the United States Justice Department. The Juvenile Justice and Delinquency Prevention Act of 1974 requires that each state seeking funds under the Act submit a plan to ensure that wayward or disobedient children \\\"shall not be placed in juvenile detention or correctional facilities.\\\" 42 U.S.C. \\u00a7 5633(a)(12) (1976).\\nMinnesota, in adopting the federal policy of deinstitutionalization of status offenders, is moving in the direction adopted by the ABA Juvenile Justice Standards Project, Standards Relating to Noncriminal Misbehavior. The ABA Standards, and their Commentary, conclude that runaway youth, truant youth, and otherwise \\\"incorrigible\\\" or \\\"wayward\\\" youth are best served outside the juvenile court system and outside juvenile detention facilities. As Amicus Coalition for the Protection of Youth Rights rightly points out, once children are defined as delinquent and placed with delinquent law-breakers, they may conform their behavior to that label, thus countermanding the entire process. E. Schur, Radical NonIntervention: Rethinking the Delinquency Problem, 118-126 (1973). The Legislature may well have determined that removing status offenders from facilities designed for and used for law violators would result in better treatment, better programs, and better services for the child and that child's family. In addition, we interpret the amendment as reflecting the Legislature's concern with the effects of comingling disobedient or wayward children with juveniles who have allegedly committed more serious crimes.\\nIn light of the foregoing, we hold that only under the most egregious circumstances should the juvenile courts exercise their contempt power in such a manner that a status offender will be incarcerated in a secure facility. If such action is necessary, the record must show that all less restric tive alternatives have failed in the past. (See State in Interest of M.S., 73 N.J. 238, 374 A.2d 445 [1977] for other alternatives.)\\nIn L.A.M. v. State, 547 P.2d 827, 831 (Alaska, 1976), the Alaska Supreme Court noted:\\nBefore a party may be held in criminal or civil contempt for failure to abide by a court order, certain elements must be established: (1) the existence of a valid order directing the alleged contemnor to do or refrain from doing something and the court's jurisdiction to enter that order; (2) the contemnor's notice of the order within sufficient time to comply with it; and in most cases, (3) the con-temnor's ability to comply with the order; and (4) the contemnor's willful failure to comply with the order.\\nIn order for the juvenile court to find a \\\"willful failure to comply\\\" which warrants a holding of contempt, the record from the previous hearing must show that the child understood that disobedience would result in incarceration in a secure facility. A child too young to comprehend the warning cannot be found in contempt of court. With these limitations, the juvenile court can resort to the use of the secure facility if absolutely necessary.\\nFinally, if it is necessary to rely on the use of a secure facility, the order must include instructions to the administrator of the institution that the disobedient child's contact with the more committed juvenile be kept to a minimum.\\nWrit discharged.\\n. A \\\"shelter care facility\\\" is defined by Minn. Stat. \\u00a7 260.015, subd. 17 (1978) as \\\"a physically unrestricting facility, such as a group home or a licensed facility for foster care, excluding a detention home.\\\"\\n. In contrast to adults who, by escape \\\"affront the authority of the State,\\\" children who run away only harm their own well being. State in Interest of M.S., 73 N.J. 238, 374 A.2d 445 (1977).\\n. 1.1 Noncriminal misbehavior generally.\\nA juvenile's acts of misbehavior, ungovern-ability, or unruliness which do not violate the criminal law should not constitute a ground for asserting juvenile court jurisdiction over the juvenile committing them.\\n*\\n5.2 Prohibition against placement in secure facility.\\nIn no event should alternative residential placement for a juvenile in conflict with his or her family, who has violated no criminal law, be arranged in a secure detention facility or in a secure institution used for the detention or treatment of juveniles accused of crimes or adjudged delinquent.\"}"

minn/10683534.json

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+"{\"id\": \"10683534\", \"name\": \"STATE of Minnesota, Respondent, v. Henry Walter BUTLER, Appellant\", \"name_abbreviation\": \"State v. Butler\", \"decision_date\": \"1980-08-15\", \"docket_number\": \"No. 50282\", \"first_page\": \"658\", \"last_page\": \"659\", \"citations\": \"295 N.W.2d 658\", \"volume\": \"295\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:43:53.238578+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Henry Walter BUTLER, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Henry Walter BUTLER, Appellant.\\nNo. 50282.\\nSupreme Court of Minnesota.\\nAug. 15, 1980.\\nRehearing Denied Sept. 15, 1980.\\nJack Nordby, Minneapolis, for appellant.\\nWarren Spannaus, Atty. Gen., St. Paul, Thomas Johnson, County Atty., Vernon E. Bergstrom, David W. Larson, Asst. County Attys., and Thomas Weist, Minneapolis, for respondent.\", \"word_count\": \"278\", \"char_count\": \"1816\", \"text\": \"ROGOSHESKE, Justice.\\nDefendant was found guilty by a district court jury of three counts of burglary with tool, Minn.Stat. \\u00a7 609.58, subd. 2(l)(a) (1978), and was sentenced by the trial court to a maximum prison term of 20 years. On this appeal from judgment of conviction defendant raises a number of issues, including the sufficiency of the evidence, the admission of certain evidence, and the adequacy of instructions. We affirm.\\nDefendant was caught and arrested as he fled from the scene of a drugstore burglary one week after the incident out of which the present charges against defendant arose. Evidence seized from defendant connected him to the burglaries with which we are concerned. The trial court also admitted, as Spreigl evidence, evidence concerning defendant's participation in both the subsequent burglary and another drugstore burglary committed several months earlier. We are satisfied that the trial court did not prejudicially err in any of its evidentiary rulings, including the ruling admitting the Spreigl evidence, and the evidence of defendant's guilt clearly was adequate to sustain the verdicts. Defendant did not object to the trial court's instructions. Notwithstanding this, we could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence. However, we are satisfied that the instructions were adequate in this respect.\\nAffirmed.\"}"

minn/10684555.json

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+"{\"id\": \"10684555\", \"name\": \"STATE of Minnesota, By Edward POWDERLY, Martha Wasmund and Maxine Pfleuger, Plaintiffs, Maxine Pfleuger, Appellant, and Friends of History, Inc., etc., intervenor, Appellant, v. Claire ERICKSON and Erickson Diversified Corp., Respondents, City of Red Wing, Respondent, John Doe and Mary Roe, Defendants\", \"name_abbreviation\": \"State ex rel. Powderly v. Erickson\", \"decision_date\": \"1979-10-12\", \"docket_number\": \"No. 49708\", \"first_page\": \"84\", \"last_page\": \"91\", \"citations\": \"285 N.W.2d 84\", \"volume\": \"285\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:58:46.801973+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, By Edward POWDERLY, Martha Wasmund and Maxine Pfleuger, Plaintiffs, Maxine Pfleuger, Appellant, and Friends of History, Inc., etc., intervenor, Appellant, v. Claire ERICKSON and Erickson Diversified Corp., Respondents, City of Red Wing, Respondent, John Doe and Mary Roe, Defendants.\", \"head_matter\": \"STATE of Minnesota, By Edward POWDERLY, Martha Wasmund and Maxine Pfleuger, Plaintiffs, Maxine Pfleuger, Appellant, and Friends of History, Inc., etc., intervenor, Appellant, v. Claire ERICKSON and Erickson Diversified Corp., Respondents, City of Red Wing, Respondent, John Doe and Mary Roe, Defendants.\\nNo. 49708.\\nSupreme Court of Minnesota.\\nOct. 12, 1979.\\nConnolly & Heffernan, and Donald J. Heffernan, St. Paul, for appellants.\\nGrossman, Karlins, Siegel & Brill, Josiah E. Brill, Jr., and Thomas H. Goodman, Minneapolis, for Erickson, et al.\\nPatrick J. Costello, City Atty., and Henry L. Miller, Asst. City Atty., Red Wing, for City of Red Wing.\\nWarren Spannaus, Atty. Gen., Byron E. Starns, Chief Deputy Atty. Gen., and Karen G. Schanfield, Sp. Asst. Atty. Gen., State of Minnesota and Minnesota Historical Society, St. Paul, for amici curiae; Charles W. Skrief, St. Paul, of counsel.\", \"word_count\": \"3062\", \"char_count\": \"19366\", \"text\": \"WAHL, Justice.\\nPlaintiffs appeal from an order of the Goodhue County District Court refusing to enjoin demolition of two row houses in Red Wing. They challenge the court's denial of the application for intervention of the Friends of History, Inc. and the court's findings that the demolition permit was valid, that defendants have established that there was no feasible and prudent alternative, and that demolition is consistent with and reasonably required for the promotion of public health, safety, and welfare. We affirm in part, reverse in part, and remand for issuance of permanent injunction.\\nDefendant Erickson Diversified Corporation (hereinafter Erickson) operates a food market, pharmacy, and gasoline service station at the corner of Highway # 61 and Dakota Street in Red Wing, Minnesota. In 1964 it purchased the adjoining parcel of land, on which the row houses stand, for future expansion. Because no immediate expansion was planned, a manager was engaged to rent the houses but was told not to make extensive repairs. On March 31, 1978, as part of preparations to expand, Erickson petitioned the City of Red Wing to vacate the alley located south of its present store. The petition was heard and granted by the city council on April 10, 1978.\\nOn May 12,1978, the Historical Preservation Commission of Red Wing sent a letter to all property owners within 200 feet of a proposed preservation district, including the owner of the row houses, notifying them of an informal meeting to be held on May 15 to discuss the proposed Heritage Mall Preservation District. No public opinion either in favor of or against the proposed preservation district was expressed at this meeting.\\nOn May 25, after receiving- a complaint, the building inspector, the fire chief, their assistants, and the assistant manager of Erickson's inspected the row houses. As a result of that inspection, Claire Erickson, secretary of Erickson Diversified Corporation, applied for and was issued a demolition permit on May 31 and had the apartment manager give tenants 60-days notice on June 1. On June 6, the building inspector wrote to Claire Erickson specifying the defects in the row houses and stating that if demolition or renovation had not begun by August 15, the city would institute condemnation proceedings.\\nThe city council held the first reading of the ordinance establishing the Heritage Mall Preservation District on June 12. The second reading occurred July 24, and the ordinance became effective 30 days thereafter.\\nOn July 31, 1978, three citizens brought suit under the Minnesota Environmental Rights Act (MERA), Minn.St. c. 116B, to enjoin demolition of the row houses. A temporary restraining order was issued the same day. The row houses were seriously vandalized on August 1.\\nThe case was tried to the court on August 15-16, 1978. The district court found that the row houses were historical resources but that demolition was consistent with public health, safety, and welfare because of building code and fire safety violations and that defendants had no feasible and prudent alternative to meet their parking needs. On December 27, 1978, the district court denied plaintiffs' motion for a new trial and their petition to permit the Friends of History, Inc., a nonprofit corporation, to intervene.\\nThe issues raised by this appeal are: (1) whether the court erred in denying the petition for intervention; (2) whether the row houses are historical resources; (3) whether defendants have established an affirmative defense; (4) whether the demolition permit is valid; and (5) whether defendants' property has been unconstitutionally taken without just compensation.\\n1. Friends of History, Inc. moved to intervene pursuant to Rule 24, Minnesota Rules of Civil Procedure, and/or Minn.St. 116B.09, subd. 1. An application for intervention should be timely filed. See, generally, People for Environmental Enlightenment & Responsibility (PEER), Inc. v. Minnesota Environmental Quality Council, 266 N.W.2d 858, 875 (Minn.1978); Note, 56 Minn.L.Rev. 575, 626. In the instant case Friends of History did not move to intervene until November 16,1978, three months after trial. At that time the court had not only issued its findings of fact and conclusions of law but had also amended those findings and conclusions upon plaintiffs' motion. In addition, Rule 24.01 permits intervention only if the interests of the intervenor are not adequately represented by the existing parties. There is no allegation in the record that Friends of History had any additional information or an interest different from plaintiffs' interest that would affect the court's decision. There is thus no showing that its interests were not adequately represented by existing parties. The district court, therefore, did not err in denying the petition for intervention.\\n2. Under MERA, plaintiffs have the burden of proving (1) the existence of a protectable natural resource, and (2) the pollution, impairment, or destruction of that resource. County of Freeborn v. Bryson, 297 Minn. 218, 210 N.W.2d 290 (1973); Minn.St. 116B.04. In the instant case there is no dispute that demolition would destroy the row houses; the only issue is whether they are protectable natural resources within the meaning of MERA.\\nFor purposes of MERA, natural resources are defined as \\\"all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources.\\\" Minn.St. 116B.02, subd. 4. No cases define the term \\\"historical resources,\\\" although there are extensive local, state, and federal programs for historical preservation. See, 16 U.S.C.A. \\u00a7 461-470t; Minn.St. 138.-51-.65, 138.71\\u2014.75; Red Wing City Code, \\u00a7 2-53-.66. Buildings, sites, and structures of local, state, or national significance are eligible for inclusion on the national register of historic sites under the following criteria:\\n\\\" The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association and:\\n\\\"(1) That are associated with events that have made a significant contribution to the broad patterns of our history; or\\n\\\"(2) That are associated with the lives of persons significant in our past; or\\n\\\"(3) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or\\n\\\"(4) That have yielded, or may be likely to yield, information important in prehistory or history.\\\" 36 C.F.R. \\u00a7 800.10(a).\\nAlthough these criteria do not control our decision, they do indicate what factors should be considered in determining whether the row houses are historical resources.\\nIn the instant case Russell Fridley, Director of the Minnesota Historical Society and the State Preservation Officer, defined an historical resource as a building, structure, or site possessing historical, archeological, or architectural value. He stated that although age was one factor to consider, not all old buildings were historically significant. Other factors Mr. Fridley considered important were: (1) who built the structure; (2) who lived in it; (3) its location; (4) its architecture; (5) unique materials; (6) quality of workmanship; (7) the structure's association with builders or important people or events in the area; and (8) its interaction with other buildings. In his opinion, the row houses are historical resources because of their age, their construction, and their association with local historical events. The north row house was built in 1870 by James Lawther, an Irish immigrant, who was highly successful in real estate. Lawther had a tremendous impact on building in Red Wing and was one of the town's greatest philanthropists. The south house was built in 1882 by Silas Foot, a mayor and famous civic leader of Red Wing, who was involved in the Foot Tanning Company. The style of the houses, although common in other parts of the country during the 19th century, was unusual in Minnesota. The row houses also occupy a key position on the mall and act as a buffer between the highway and the Heritage Mall Preservation District. Mr. Frid-ley also testified that both the row houses and the Heritage Mall Preservation District would be eligible for nomination to the national register.\\nDefendants did not rebut this evidence. Their only rebuttal witness was a registered architect who testified that he had seen buildings of similar style in the Twin Cities. He admitted that he had no prior professional experience in historical renovation or preservation, nor was he familiar with a number of local renovation projects. We find there is sufficient evidence to sustain the trial court's finding that the row houses are historical resources within the meaning of MERA.\\n3. Section 116B.04 requires defendants who do not rebut a plaintiff's prima facie case to prove (1) that there is no feasible and prudent alternative and (2) that the conduct in issue is consistent with and reasonably required for the promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its natural resources. In deciding whether defendants have established an affirmative defense under MERA, the trial court is not to engage in wide-ranging balancing of compensable against noncompensable impairments. Rather, protection of natural resources is to be given paramount consideration, and those resources should not be polluted or destroyed unless there are truly unusual factors present in the case or the cost of community disruption from the alternatives reaches an extraordinary magnitude. County of Freeborn by Tuveson v. Bryson, 309 Minn. 178, 187, 243 N.W.2d 316, 321 (1976). In Bryson a taking of agricultural land for highway construction that resulted in shortened crop rows and inconvenience in farming was considered a prudent and feasible alternative to destroying marshland. In People for Environmental Enlightenment & Responsibility (PEER), Inc. v. Minnesota Environmental Quality Council, supra, the destruction of seven or eight homes was considered insufficient to overcome the law's preference against proliferation of high voltage transmission lines and the destruction of natural resources.\\nIn the instant case defendant Erickson did not sustain its burden of proving that there was no feasible and prudent alternative to demolition of the row houses to satisfy its parking requirements. Claire Erickson testified that the corporation had not considered renovating the row houses, that it did not intend to renovate them, that it had received no offers to buy them, and that it needed the land on which the row houses stand to provide parking when it expanded its retail space. The architect who testified for Erickson stated that if the cost of renovation exceeded 50 percent of the value of the building, the building code required that the entire building be brought up to code. He believed it was impossible to remodel the row houses to bring them into compliance with the code.\\nPlaintiffs' expert, Mr. Fridley, testified that the row houses were structurally sound, that they could be renovated, and that grant money might be available to renovate them. Other witnesses agreed that the houses were structurally sound. It appears that if the row houses are renovated, they will be easily rented because the rental market in Red Wing is tight.\\nErickson did not submit any evidence regarding possible alternative parking plans which it had considered. It limited its evidence to rejecting all of plaintiffs' suggestions for possible ways to meet its parking requirements without demolishing the row houses, such as on-street angle parking, zoning variances, some smaller parking spaces designated for compact cars, etc. From all the evidence presented by both sides it appears that if Erickson expands without demolishing the row houses, it will lose approximately 10 parking spaces. This is not such an unusual circumstance or of such extraordinary magnitude as to permit the demolition of the historical resources.\\nNot only have defendants not sustained their burden of proving no feasible and prudent alternative, they have not sustained their burden of proving that demolition is \\\" consistent with and reasonably required for promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment, or destruction.\\\" (Emphasis added.) Minn.St. 116B.04. Renovation as well as demolition will remove any danger to the public caused by the current condition of these houses. Because of the state's paramount concern with the protection of its natural resources, demolition is not consistent with the public health, safety, and welfare.\\nOn the evidence before us, we reverse the district court's findings that there is no feasible and prudent alternative to demolition and that demolition is consistent with the public health, safety, and welfare.\\n4. We need not reach plaintiffs' argument that the demolition permit issued to Erickson on May 31 was not valid because it was issued while the city was considering establishing the Heritage Mall Preservation District which included the row houses. Once plaintiffs have established a prima facie case under MERA and defendants have not proven an affirmative defense, demolition is enjoined, even though the per mit is valid. Cf. County of Freeborn by Tuveson v. Bryson, 309 Minn. 178, 243 N.W.2d 316 (1976) (power of eminent domain limited by the operation of MERA).\\n5. Erickson claims that preventing demolition of the row houses constitutes an unconstitutional taking of its property without just compensation. Historic preservation ordinances have been upheld as a reasonable exercise of police power. See, Maher v. City of New Orleans, 516 F.2d 1051 (5 Cir. 1975). The restrictions on use of property which such ordinances impose do not effect a taking of property, even though the value of the property is diminished. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Maher v. City of New Orleans, supra. There is an unconstitutional taking only if all effective use of the property is prevented or if the owner is not permitted to obtain a reasonable rate of return on his investment. Penn Central Transp. Co. v. City of New York, supra; Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856 (Mo.App.1977). The burden of proof is on the person challenging the government's action to establish that there is an unconstitutional taking, Lafayette Park Baptist Church v. Scott, supra; Maher v. City of New Orleans, supra, or that he has been deprived of all reasonable uses of his land, e. g., Czech v. City of Blaine, 312 Minn. 535, 539, 253 N.W.2d 272, 274 (1977).\\nIn Penn Central Transp. Co. v. City of New York, supra, the owners brought suit to declare the New York Landmark Preservation Law unconstitutional when the Landmark Preservation Commission rejected the owner's plans to build a 50-story tower on top of Grand Central Terminal. The Supreme Court held there was no unconstitutional taking of property because there was no interference with the present use of the building, the owners were obtaining a reasonable return on their investment, there was no showing that the Commission would reject all plans for use of the air space above the terminal, and the owners had obtained valuable development rights which were transferable to surrounding properties because the terminal was designated a landmark. In Lutheran Church in America v. City of New York, 35 N.Y.2d 121, 359 N.Y.S.2d 7, 316 N.E.2d 305 (1974), on the other hand, the New York Court of Appeals found an unconstitutional taking of property where plaintiff was not permitted to demolish J. P. Morgan, Jr.'s house, which had been designated as a landmark. The court found that plaintiff was unable to continue its present use of the structure because it required more space and adjoining structures had already been integrated with the building. In addition, plaintiff, as a religious organization, was unable to take advantage of the ameliorative tax provisions of the act.\\nIn the instant case no evidence was admitted to establish that the value of the property might decrease if Erickson is not allowed to demolish the row houses. The evidence does indicate that it is possible to renovate and rent the row houses and, thus, continue their present use. There was no evidence that the cost of renovation was so high that Erickson would not be able to obtain a reasonable return on its investment through future rentals. Erickson, therefore, has not sustained its burden of proving that there was an unconstitutional taking of its property.\\nWe do not decide that the application of MERA to \\\"historical resources\\\" is constitutional under all circumstances. Our decision is limited to holding that the row houses are historical resources within the meaning of MERA and that defendants have not established an affirmative defense. We realize that Erickson cannot be forced to renovate the row houses under the provisions of MERA. Nor can demolition be enjoined indefinitely if Erickson refuses to renovate or sell the houses or if the city does not condemn them. See, People v. Ramsey, 28 Ill.App.2d 252, 171 N.E.2d 246 (1960). It would seem to be more fair and more efficient in such a case as this for the relevant legislative or administrative bodies to initiate condemnation proceedings with regard to these buildings within a reasonable period of time. Where control or acquisition of property is for the benefit of the many, it makes sense that the cost of the control or acquisition should be borne by all of the taxpayers and not fall on the few directly affected.\\nAffirmed in part, reversed in part, and remanded for issuance of permanent injunction.\\n. We note that on November 13, 1978, after the trial in the instant case, the Red Wing City Council adopted the proposal of the Historical Preservation Commission to relax landscaping zoning ordinances, making 92 parking spaces available to Erickson without the destruction of the row houses.\"}"

minn/10686978.json

@@ -0,0 +1 @@
+"{\"id\": \"10686978\", \"name\": \"STATE of Minnesota, Respondent, v. Tyrone Lee COBB, Appellant\", \"name_abbreviation\": \"State v. Cobb\", \"decision_date\": \"1979-05-18\", \"docket_number\": \"No. 48862\", \"first_page\": \"832\", \"last_page\": \"834\", \"citations\": \"279 N.W.2d 832\", \"volume\": \"279\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:09:53.040442+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Tyrone Lee COBB, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Tyrone Lee COBB, Appellant.\\nNo. 48862.\\nSupreme Court of Minnesota.\\nMay 18, 1979.\\nC. Paul Jones, Public Defender, and Eva-lynn B. Welling, Asst. Public Defender, Minneapolis, for appellant.\\nWarren Spannaus, Atty. Gen., William B. Randall, County Atty., and Steven C. De-Coster, Asst. County Atty., St. Paul, for respondent.\", \"word_count\": \"1023\", \"char_count\": \"6299\", \"text\": \"PER CURIAM.\\nDefendant was found guilty by a district court jury of aggravated robbery and was sentenced by the trial court to a 1- to 20-year prison term. On this appeal from judgment of conviction defendant contends that the trial court erred in (1) permitting in-court identification of him by three eyewitnesses because the pretrial identification procedures used violated his right to due process and his right to counsel, and (2) in permitting the prosecutor to elicit an admission from defendant on cross-examination that 2 months after the crime he had pawned property similar to that taken in the robbery. We affirm.\\nAs we indicated, there are two parts to defendant's claim that the court errlcl in permitting the in-court identification by the three eyewitnesses.\\n(a) First, defendant contends that the in-court identification of him was tainted by suggestive identification procedures. The test which is used in determining a claim such as this is whether the identification procedures were so impermissibly suggestive as to create a \\\" very substantial likelihood of irreparable misidentification. \\\" Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The focus of the test is the reliability of the identification, and all relevant factors are considered in determining this. Defendant's claim that the procedures used were suggestive is based on the use of two photographs of him in the photographic display and the fact that only three people (one with hair that was different from defendant's) participated in the lineup. We agree that there may be dangers in using two photographs of a suspect in a photographic display and only one of each of the others represented. This is especially true where the suspect looks the same in both pictures. However, in this case we are satisfied that the fact that two pictures of defendant were used did not increase the likelihood of misidentification, because each of the three eyewitnesses identified defendant as the robber before looking at the second of the two pictures. With respect to the lineup we agree that it would have been preferable if more than two people had participated in the lineup with defendant, but the lineup was a confirmatory lineup which was requested by defendant, and the eyewitnesses had all positively identified defendant before they saw him in the lineup. Considering all the relevant factors, we conclude that there was no \\\" very substantial likelihood of irreparable misidenti-fication. \\\"\\n(b) Defendant's related contention is that the admission of the in-court identification testimony was erroneous because he was denied his right to have counsel present at the lineup.\\nThe lineup was held at defendant's insistence, and the failure to notify defense counsel of the time at which it was being held was the result of a mixup. Nonetheless, defendant's right to counsel at the lineup was denied. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). In the absence of a voluntary waiver of the right to counsel by the defendant, any evidence of the identification of a defendant at a post-accusation lineup held in the absence of defendant's counsel is inadmissible per se, and any subsequent in-court identification of defendant by the witnesses who viewed the lineup is inadmissible unless the evidence clearly and convincingly indicates that the subsequent in-court identification has a source independent of the improper lineup. The numerous factors which the court must consider in making this determination are listed in the Wade case. 388 U.S. 241, 87 S.Ct. 1940, 18 L.Ed.2d 1165. These factors are similar to the factors one considers in determining the admissibility of testimony about both in-court and out-of-court identification of a defendant which is challenged on due process grounds. A consideration of those factors here mandates the conclusion that the in-court identification in this case had an independent source and was not tainted by the error in the conduct of the lineup.\\nDefendant's only other contention concerns the propriety of permitting the prosecutor to elicit from defendant on cross-examination the damning admission that he had pawned a diamond ring 2 months after the robbery. Since the robbery with which we are concerned was a jewelry store robbery in which 18 diamond rings were taken, we believe the evidence was relevant and therefore properly admitted. There was nothing to indicate that the diamond ring that defendant pawned clearly was not one of the stolen rings and that the state had no way of proving that it was because the pawned ring apparently was no longer in the pawnbroker's possession and could not be found. Under these circumstances, the evidence was properly admitted. See, 1 Wigmore on Evidence (3 ed.) \\u00a7 152, 153; 77 C.J.S. Robbery \\u00a7 46e(5)(b). See, also, State v. Kotka, 277 Minn. 331, 152 N.W.2d 445 (1967), certiorari denied, 389 U.S. 1056, 88 S.Ct. 806, 19 L.Ed.2d 853 (1968), where, in holding that the defendant's gun was sufficiently connected with the crime charged to be admissible, we stated that in that case it did not matter that the state could not prove that the gun was the one used, so long as the state was able to show that it was \\\"[t]he type of weapon or instrument with which the crime was committed.\\\"\\nAffirmed.\\n. The witnesses had an adequate opportunity to view the robber over a 5-minute period, they were attentive witnesses, their description of the robber accurately fit defendant, they were positive in their identification of defendant, and their initial photographic identification of defendant took place shortly after the crime.\"}"

minn/10697284.json

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+"{\"id\": \"10697284\", \"name\": \"Galen WILLIS, Petitioner, Appellant (C6-95-363), Respondent (C5-95-371), v. The COUNTY OF SHERBURNE, Petitioner, Respondent (C6-95-363) Appellant (C5-95-371), Dan Nickols, Respondent\", \"name_abbreviation\": \"Willis v. County of Sherburne\", \"decision_date\": \"1996-10-31\", \"docket_number\": \"Nos. C6-95-363, C5-95-371\", \"first_page\": \"277\", \"last_page\": \"284\", \"citations\": \"555 N.W.2d 277\", \"volume\": \"555\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:25:00.272723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Galen WILLIS, Petitioner, Appellant (C6-95-363), Respondent (C5-95-371), v. The COUNTY OF SHERBURNE, Petitioner, Respondent (C6-95-363) Appellant (C5-95-371), Dan Nickols, Respondent.\", \"head_matter\": \"Galen WILLIS, Petitioner, Appellant (C6-95-363), Respondent (C5-95-371), v. The COUNTY OF SHERBURNE, Petitioner, Respondent (C6-95-363) Appellant (C5-95-371), Dan Nickols, Respondent.\\nNos. C6-95-363, C5-95-371.\\nSupreme Court of Minnesota.\\nOct. 31, 1996.\\nFrederick E. Finch, John M. Buckley, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for Willis.\\nMichael J. Ford, Kenneth H. Bayliss, Quinlivan, Sherwood, Spellaey & Tarvestad, P.A., St. Cloud, for Sherburne County.\\nJeff M. Zalasky, Lauri A Vranyes, Erstad & Riemer, P.A., Minneapolis, for Niekols.\", \"word_count\": \"4503\", \"char_count\": \"28691\", \"text\": \"OPINION\\nCOYNE, Justice.\\nOn the petition of plaintiff Galen Willis and conditional petition of defendant Sherburne County we review an unpublished decision of the court of appeals, Willis v. County of Sherburne, Nos. C6-95-363, C5-95-371, 1995 WL 479640 (Minn.App., Aug. 15, 1995). Following termination of his employment, Willis sued Sherburne County and Dan Niekols, alleging that the county had wrongfully discharged him, breached his employment contract, discriminated against him because of a medical disability, and defamed him and alleging that Niekols had wrongfully interfered with his employment. The district court granted the defendants' motions for summary judgment with respect to Willis' wrongful termination claim but denied the motions with respect to Willis' claims of breach of contract, discrimination and defamation and the claim that Niekols interfered with Willis' prospective business advantage. The district court granted the plaintiffs contemporary motion to amend his complaint. On appeal the court of appeals affirmed summary judgment dismissing the wrongful discharge claim and ruled that because Willis had not proceeded by timely writ of certiorari, the court also lacked subject matter jurisdiction -with respect to Willis' breach of contract claim. Denial of summary judgment with respect to claims of defamation and disability discrimination was affirmed. We affirm the decision of the court of appeals.\\nIn his amended complaint, Willis makes these allegations: Willis was employed in 1988 as an appraiser in the office of the Sherburne County Assessor. In 1989 he became manager of the newly created mapping department within the county assessor's office. In June of 1990 the Sherburne County Board established a Geographic Information System (GIS) designed to create a database of geographical information which could be used to implement a countywide 911 emergency dispatch system, land use planning and other public uses. On June 6,1990 the county board reorganized the mapping department as a separate county department known as Land Information/Mapping Office and appointed Willis as department director.\\nAs director of the Land Information/Mapping Office, Willis reported directly to the board of county commissioners, and on his recommendation the board authorized the employment of a registered land surveyor to perform the surveying work previously contracted with outside surveyors. Willis hired Dan Niekols, a licensed surveyor, who was later appointed Sherburne County Surveyor.\\nIn January 1991 Willis suffered an acute episode of multiple sclerosis. He advised Commissioner Michael Johnson, the chairman of the county board, of his illness, saying that although it affected his physical coordination, it did not impair his ability to do his job. Johnson assured Willis that his job was not in danger, but he suggested that Willis not inform David Loch, the county coordinator, that he had multiple sclerosis. Willis did not inform Loch but from time to time he discussed his condition with other county department heads.\\nAccording to Willis, Niekols came to resent Willis' supervision and \\\"began to undermine Willis' authority.\\\" Then Niekols became openly critical of Willis' qualifications, complaining to members of the county board and other county officials about Willis' management of the department and that Willis was not a licensed surveyor. At about the same time, the county commissioners began to receive anonymous letters accusing Willis of malfeasance and misfeasance in the performance of his duties. On information and belief, Willis alleges that Niekols wrote or solicited the writing of those letters in order to undermine the board's confidence in Willis' ability to manage the Land Information/Mapping Office.\\nWillis alleges that the county board failed to investigate charges made by Niekols and the anonymous letter writers. Willis also asserts that his job performance was discussed at both open meetings of the board and one or more closed meetings with Niek-ols, from which Willis was excluded. Willis also accuses the newspapers of Sherburne County of printing Niekols' and some county commissioners' factually inaccurate statements about Willis.\\nIn April or May of 1993 the county board split the Land Information/Mapping Department into two divisions. Niekols became supervisor of the mapping division and Willis remained as head of the Geographic Information System (GIS) division.\\nDespite the. chairman's assurance that Willis' job was not in jeopardy, on June 8, 1993, the GIS operation was assigned to the mapping division and Willis was directed to report to Niekols.\\nA day or two later Willis told Niekols of his multiple sclerosis and informed Niekols that his condition precluded participation in field survey operations. Willis also says he requested confidentiality with respect to his illness but that within a few days Niekols advised him that he had discussed the matter with \\\"friends\\\" and that he was going to disclose the information to the board or to David Loch, the county coordinator.\\nOn June 15, 1993 the board terminated Willis' employment. Willis alleges that discontinuance of the GIS project was the stated reason for his discharge but that the project has continued under Niekols' supervision. Willis complains that the county did not reassign him to other county employment for which he is qualified by virtue of education, experience and background.\\nAbout 9 months after he was discharged, Willis commenced this action against Sher-burne County and Niekols alleging breach of contract by reason of termination of his employment without just cause, disability discrimination, defamation and interference with prospective advantage. The defendants moved for summary judgment on the ground that the court lacked subject matter jurisdiction because a petition for certiorari provides the exclusive means by which an employee can secure judicial review of the county's employment determination decision. The district court granted summary judgment dismissing Willis' claim for wrongful termination but also granted Willis' motion to amend his breach of contract count to assert what Willis characterizes as a \\\"pure breach of contract claim.\\\" At the same time the district court denied summary judgment with respect to the claims of breach of contract, disability discrimination, defamation and intentional interference with prospective business advantage.\\nThe defendants appealed denial of their motions for summary judgment. The court of appeals affirmed the judgment of dismissal with respect to the claim of wrongful termination and the denial of summary judgment with respect to the claims of disability discrimination and defamation but reversed the denial of judgment dismissing the breach of contract claim.\\nWe review the decision of the court of appeals on petitions of both Willis and the county. Willis seeks reversal of the dismissal of his breach of contract count, contending that Dietz v. Dodge County, 487 N.W.2d 237 (Minn.1992), should be overruled or substantially limited. The county, on the other hand, would have us extend the rule announced in Dokmo v. Independent School Dist. No. 11, 459 N.W.2d 671 (Minn.1990), and applied in Dietz, to include claims of defamation and discrimination arising out of the discharge of an employee of a local government.\\nCertainly, as the court of appeals recognized, there can be little doubt that the correct interpretation and application of Dietz v. Dodge County, 487 N.W.2d 237 (Minn.1992), governs the disposition of the present case.\\nThe circumstances giving rise to both the Dietz case and the present case are markedly similar. About 6 months after the county had terminated Ms. Dietz' employment, she commenced an action for wrongful discharge. About 9 months went by before Willis commenced this action in which he complained of wrongful discharge in a count entitled \\\"Breach of Contract.\\\" In both cases the district court properly dismissed the claim for wrongful discharge. In the present case, however, the district court contemporaneously permitted Willis to amend his complaint to assert what he contends is a \\\"pure\\\" breach of contract claim. Following the erroneous trail laid down by the court of appeals in Stadum v. Norman County, 508 N.W.2d 217, 219 (Minn.App.1993), pet. for rev. denied, (Minn. Jan. 6, 1994) (holding Dietz inapplicable to a \\\"pure breach of contract\\\" claim), the district court ruled that Willis was not limited to review by certiorari and denied the defendants' motion for dismissal of the breach of contract count.\\nWhat the district court faded to recognize, however, is that Dietz, as well as Willis, brought an action grounded on breach of contract. Willis would have us render Dietz a victim of creative pleading: if the claimant calls it an action for wrongful discharge, he or she is limited to review by certiorari, but if the claimant calls the action, one for breach of contract, the action is to be regarded as an ordinary action for failure to perform on a contract for goods or services. This despite the fact that the amendment of Willis' complaint consisted only of the following: \\\"23. Willis's employment contract provided that Willis would not be terminated except for just cause\\\" was amended to state \\\"23. Willis' employment contract provided certain criteria for the [sic] Sherburne County to follow when terminating or laying off employees.\\\" The next paragraph of the complaint, \\\"24. Sherburne County breached the employment contract by terminating Willis without just cause\\\" was amended to state \\\"24. Sherburne County breached the employment contract by terminating Willis without following the procedures and policies set out in the employment contract.\\\" All other allegations of the complaint remain unchanged, including the allegations set out at paragraph 26: \\\"26. As a result of the County's breach of contract, Willis has suffered lost wages and benefits in the past and will continue to lose wages and benefits in the future all in an amount to be proven at trial.\\\" Willis' prayer for relief also remains unchanged: he demands judgment ordering his reinstatement to a position with the county; awarding him back pay, front pay, and the value of lost fringe benefits including pension contributions, medical benefits and other benefits offered by the county, and awarding him damages for mental anguish caused by the defendant's wrongful acts. What Willis is really demanding is specific performance of his alleged employment agreement, a remedy which this court has observed is unavailable in an action for breach of an employment contract. Bussard v. College of St. Thomas, Inc., 294 Minn. 215, 228, 200 N.W.2d 155, 163 (1972).\\nWhen Dietz is read as it was written, it is quite apparent that Dietz' complaint stated an action for breach of her employment contract. Dietz alleged that her employment contract provided that she could be discharged only \\\"for cause\\\" and she contended that the county had breached that contract by discharging her without cause. Therefore, she argued, she should have access to the courts to seek damages for such wrongful discharge. This court was not persuaded that framing the complaint as one for breach of contract avoided the necessity to proceed by writ of certiorari.\\nAfter remarking that the principles governing review of quasi-judicial decisions of executive bodies had recently been reiterat ed in Dokmo v. Independent School Dist. No. 11, 459 N.W.2d 671 (Minn.1990), we stated in Dietz that our decision was \\\"informed by and consistent with Dokmo \\\" although it was not dependent on Dokmo. Dietz, 487 N.W.2d at 239.\\nWe then set out, in what we have regarded as reasonably straightforward language, four of the several reasons for our decision:\\nFor several reasons we conclude that writ of certiorari was the only mechanism by which Dietz could obtain judicial review of the county's decision to terminate her employment. First, Dietz was not entitled by statute to appeal the decision by traditional means. The county, not having statewide jurisdiction, is not subject to the Minnesota Administrative Procedure Act, Minn.Stat. \\u00a7 14.02, subd. 2 (1990), and no statute specifically provides appeal to the courts from an administrative decision to terminate a county nursing home administrator. See, e.g., Minn.Stat. ch. 144A (1990); Minn.Stat. \\u00a7 376.55, et seq. (1990).\\nSecond, because of the nature of the board's action upon which this dispute centers, the standard of review on certiorari is more appropriate to a review of the exercise of the board's discretion than would be the standard of review of an independent proceeding. Her request for reinstatement and damages for mental anguish highlights the fact that her claim is not an ordinary action for failure to perform on a contract for goods or services. The cause of action alleged in Dietz's complaint would require the rights and liabilities of the parties to be fixed not by the terms of the contract, but by the propriety of the county's exercise of discretion in terminating her. Compare Oikari v. Independent School Dist. No. 10, 170 Minn. 301, 212 N.W. 598 (1927); Backie v. Cromwell Consolidated School Distr. No. 13, 186 Minn. 38, 242 N.W. 389 (1932) (actions for salary in which the plaintiffs alleged their employment contracts were for a specified term). The issue which Dietz would have the court review demands scrutiny of the manner in which the county has discharged its administrative function; the very type of scrutiny that runs a grave risk of usurping the county's administrative prerogative. Thus, to the extent that she has characterized her contract as requiring cause to dismiss, she has raised a threshold issue which at least arguably renders the county's termination decision quasi-judicial in nature, warranting the issuance of writ of certiorari. See, e.g., State ex rel. Furlong v. McColl, 127 Minn. [155] at 160, 149 N.W. 11 [(1914)]; State ex rel. McGinnis [v. Police Civil Service Commission of Golden Valley], 253 Minn. [62] at 70-71, 91 N.W.2d 154 [(1958)].\\nThird, whether she entered into a \\\"for cause\\\" or \\\"at will\\\" employment contract is a question of law that is appropriate for review on certiorari. While the record in this case plainly falls short of a record generated in formal judicial proceedings, it is certainly adequate to ascertain the type of employment contract to which Dietz was a party.\\nFinally, in terms of practicality and cost, this case vividly illustrates the inappropriateness of permitting Dietz to obtain judicial review of the county's termination decision by way of a wrongful termination claim. A six-year statute of limitations, extensive discovery procedures, and a panoply of rules attend her cause of action. As a direct consequence, her wrongful ter mination claim remains unresolved and largely unexamined by the courts almost nine years after the termination of her employment.\\nDietz, 487 N.W.2d at 239-40 (footnote omitted).\\nJust as in Dietz, Willis complains that the county breached his employment contract by failing to follow the termination and lay-off procedures specified in the county's employee handbook. Just as in Dietz, Willis requests reinstatement, back pay, lost fringe benefits, and front pay. Just as in Dietz, the cause of action Willis alleges does indeed require the rights and liabilities of the parties to be fixed by the propriety of the county's decision to discharge him.\\nWillis urges us to adopt the rationale of Stadum v. Norman County, 508 N.W.2d 217, 219 (Minn.App.1993), even though the fact that Stadum, unlike Willis, did not demand reinstatement may account for the decision in Stadum. Although we denied further review of the decision of the court of appeals in the Stadum ease, we observe here that the Stadum decision does not represent a definitive statement of the law of Minnesota until adopted by this court, and we now specifically reject the rationale of Stadum v. Norman County.\\nRegardless that the claim is cloaked in the mantle of breach of contract, when the alleged breach of the employment contract of a governmental employee results in termination of the claimant's employment by an executive body which does not have statewide jurisdiction \\u2014 for example, a county \\u2014 the claimant may contest the employer's action by certiorari alone, absent statutory authority for a different process. Just as Ms. Dietz was required to proceed by writ of certiorari, so also is Willis.\\nWillis would have us believe that his breach of employment contract count does not implicate the county's decision to discharge him. Just how a discharged employee can demonstrate the county's breach of termination and layoff procedures without implicating the county's decision to discharge escapes us. Furthermore, although reinstatement, back pay and fringe benefits may be available in the statutory action for alleged disability discrimination, the prayer for relief is not limited to the Human Rights Act count; the several counts are included in a single action which Willis clearly wants tried as a unit; and it seems to us singularly unlikely that wrongful termination and a demand for reinstatement, back pay and fringe benefits will not migrate from the discrimination claim to the \\\"pure\\\" breach of contract count. If, however, Willis demands bifurcation of his claims with his \\\"pure\\\" breach of contract tried by a jury, we note that the only prayer for relief set forth in his complaint is for reinstatement, back pay, fringe benefits and damages for mental anguish. So much for Willis' \\\"pure\\\" breach of contract action.\\nThe county also contests the determination that the district court has subject matter jurisdiction over Willis' claims of defamation and disability discrimination. The county contends that the defamation and discrimination claims \\\"arise out of a common nucleus of operative facts\\\" which led to termination of Willis' employment and that, therefore, his only recourse lies in certiorari. As both the district court and court of appeals observed, however, the defamation Willis alleges occurred over a period of time which began more than a year before he was discharged and was separate and distinct from the termination of his employment. We agree with the court of appeals' conclusion that because the district court's \\\"necessary inquiry into what the county board knew about the truth or falsity of those letters before publishing them to a third party will not involve any inquiry into the county board's discretionary decision to terminate Willis,\\\" Willis' common law defamation action does not fall within the principle explicated in Dietz.\\nFinally, we agree that Willis' claim of disability discrimination proscribed by the Minnesota Human Rights Act is not limited to review by certiorari. See Minn.Stat. \\u00a7 363.03, subd. 2 (1992). Minn.Stat. \\u00a7 363.14, subd. 2 (1992) provides that an action for disability discrimination may be brought in district court. Unlike Ms. Dietz, who had no statutory right to appeal the county board's termination decision by traditional means, Willis has available a statutory cause of action pursuant to the Human Rights Act.\\nAlthough the county's assertion that Willis' disability discrimination claim has been included in order to obtain judicial review of the county's decision to discharge him may be correct, we are constrained to point out that the Minnesota Human Rights Act's prohibition against employment discrimination is applicable to the state and its political subdivisions as well as to private sector employers. Minn.Stat. \\u00a7 363.01, subd. 28 (1992). Moreover, in Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114 (Minn.1991), this court held that when a school board was required to judge not only an employee's conduct but also whether the school district itself had engaged in unlawful discrimination against the employee, the discharged employee was entitled to pursue her retaliatory discharge action. Accordingly, even though prosecution of the alleged violation of the Minnesota Human Rights Act may implicate at least some aspects of the decision to discharge Willis, we affirm the determination that the district court has subject matter jurisdiction of Willis' disability discrimination action pursuant to the Minnesota Human Rights Act.\\nAffirmed and remanded to the district court for further proceedings in accordance with this opinion.\\n. Although an order denying a motion to dismiss is generally nonappealable, an order denying a motion to dismiss for lack of jurisdiction is immediately appealable of right. Hunt v. Nevada State Bank, 285 Minn. 77, 88-89, 172 N.W.2d 292, 299-300 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1239, 25 L.Ed.2d 423 (1970).\\n. The historical origin of the availability of review on certiorari of executive branch matters is found in State ex ret Ging v. Bd. of Educ. of Duluth, 213 Minn. 550, 570-71, 7 N.W.2d 544, 556 (1942) (citations omitted), overruled in part on other grounds, where this court said:\\nComplete jurisdiction cannot, either directly or indirectly, be conferred upon the courts [to review school board decisions] in view of the constitutional division of the powers of government. [Y]et a limited jurisdiction by way of certiorari, and in some cases by statutory ap peal, is conferred upon the courts. This is necessarily confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it. A court cannot put itself in the place of the board, try the matter de novo, and substitute its findings for those of the board. Errors of the board committed within its jurisdiction are not subject to review. As said in Lindquist v. Abbett, 196 Minn. 233, 240, 265 N.W. 54, 57, \\\"executive officers as well as judges have a power to decide erroneously as well as rightly. There is a wide field wherein their decision, even though wrong, is final.\\\"\\nIt is significant that the tenure act itself gives no right of appeal, leaving a discharged teacher only the right to a review by a prerogative writ; \\\"writs, such as certiorari, cannot be used to review decisions purely of fact or to determine the weight of evidence, nor to review decisions based upon conflicting evidence.\\\"\\n. The dissent treats Dietz as if it deprives Willis of a remedy. It does not; it simply specifies the appropriate remedy \\u2014 a timely writ of certiorari. That Willis failed to seek the proper remedy in a timely fashion cannot be laid at the door of Dietz or its predecessors. Because Dietz applied a principle adopted not later than 1942, State ex rel. Ging v. Board of Educ. of Duluth, 213 Minn. 550, 7 N.W.2d 544 (1942), overruled in part on other grounds, and reaffirmed in 1990, Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671 (Minn. 1990), Dietz cannot be said to have announced a new rule nor should its holding have come as a surprise.\"}"

minn/10702470.json

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+"{\"id\": \"10702470\", \"name\": \"CONTINENTAL CASUALTY INSURANCE COMPANY, Respondent, v. TEACHERS INSURANCE COMPANY, a/k/a Horace Mann Insurance Company, Appellant\", \"name_abbreviation\": \"Continental Casualty Insurance Co. v. Teachers Insurance Co.\", \"decision_date\": \"1995-06-06\", \"docket_number\": \"No. C6-95-170\", \"first_page\": \"275\", \"last_page\": \"279\", \"citations\": \"532 N.W.2d 275\", \"volume\": \"532\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:13:34.198462+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by HARTEN, P.J., and RANDALL and HOLTAN, JJ.\", \"parties\": \"CONTINENTAL CASUALTY INSURANCE COMPANY, Respondent, v. TEACHERS INSURANCE COMPANY, a/k/a Horace Mann Insurance Company, Appellant.\", \"head_matter\": \"CONTINENTAL CASUALTY INSURANCE COMPANY, Respondent, v. TEACHERS INSURANCE COMPANY, a/k/a Horace Mann Insurance Company, Appellant.\\nNo. C6-95-170.\\nCourt of Appeals of Minnesota.\\nJune 6, 1995.\\nReview Denied July 27, 1995.\\nMichael W. McNee, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, Minneapolis, for respondent.\\nEric J. Magnuson, Karen Imus Johnson, Rider, Bennett, Egan & Arundel, P.L.L.P., Minneapolis, for appellant.\\nConsidered and decided by HARTEN, P.J., and RANDALL and HOLTAN, JJ.\\nRetired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 10.\", \"word_count\": \"1655\", \"char_count\": \"10567\", \"text\": \"OPINION\\nHARTEN, Judge.\\nAppellant Teachers Insurance Company, a/k/a Horace Mann Insurance Company (Horace Mann), challenges the summary judgment against it, claiming that the district court erred by concluding that it was liable in contribution to respondent Continental Insurance Company (Continental) under a Horace Mann policy and under principles of equitable contribution. We affirm.\\nFACTS\\nOn April 3,1990, a motor vehicle driven by an uninsured motorist struck Michael Lyns-key while he was walking across a street in Fort Myers Beach, Florida. Lynskey sustained serious personal injuries as a result of the accident. Lynskey and his wife were named insureds under two uninsured motorist policies' \\u2014 -one with Continental, and the other with Horace Mann.\\nSince the Lynskeys were required by statute to select coverage under only one policy, they selected benefits under the Continental policy, which had a coverage limit of $500,-000, rather than the Horace Mann policy, which had a coverage limit of $100,000. Continental subsequently paid its policy limits to the Lynskeys in return for a release of all claims against Continental and an assignment of any claims the Lynskeys had against Horace Mann.\\nIn July 1993, Continental sued Horace Mann and moved for summary judgment, claiming that Horace Mann is liable in contribution as a matter of law pursuant to its policy language and principles of equitable contribution. Horace Mann asserted that Minn.Stat. \\u00a7 65B.49 precludes any basis for joint liability between Continental and Horace Mann.\\nThe district court granted Continental's motion for summary judgment, concluding that Horace Mann was liable in contribution under both the language of its policy and principles of equitable contribution. The court ordered Horace Mann to pay Continental $83,333.30 in accordance with the terms of its policy. Horace Mann appeals.\\nISSUES\\n1. Did the district court err by concluding that Horace Mann was liable in contribution pursuant to the terms of its policy?\\n2. Did the district court err by concluding that Horace Mann was liable in contribution under principles of equitable contribution?\\nANALYSIS\\nHorace Mann claims that the district court erred by granting summary judgment for Continental. On appeal from summary judgment, this court must determine \\\"(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.\\\" State ex rel. Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The parties agree that there are no genuine issues of material fact. The question, therefore, is whether the district court erred in its application of the law. A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).\\n1. Horace Mann claims that it cannot be liable to Continental under its policy because Minn.Stat. \\u00a7 65B.49 (1990) renders its policy inapplicable. That section provides that if a pedestrian is injured by an uninsured motorist\\nthe injured person is entitled to select any one limit of liability for any one vehicle afforded by a policy under which the injured person is insured.\\nId., subd. 3a(5). Horace Mann contends that under Dohman v. Housely, 478 N.W.2d 221 (Minn.App.1991), pet. for rev. denied (Minn. Feb. 11, 1992), once the Lynskeys selected coverage under Continental's policy, Horace Mann's policy was no longer applicable.\\nIn Dohman, an uninsured motorist drove over police officer Dohman's foot, causing serious injury. Id. at 223. The city insured Dohman's squad car through the League of Minnesota Cities Insurance Trust (the League), and Dohman had personal automobile insurance through State Farm Mutual Automobile Insurance Company (State Farm). Id. Both policies provided uninsured motorist coverage. Id. Dohman sued State Farm for benefits and State Farm sought contribution or indemnification from the League. Id.\\nThe district court granted summary judgment to State Farm, determining that Doh-man was an \\\"occupant\\\" of the police squad car and that the League was responsible to provide primary insurance to Dohman. Id. We held that the district court erred when it concluded that Dohman was \\\"occupying\\\" his police car at the time of the accident. Id. at 224. We therefore looked to Minn.Stat. \\u00a7 65B.49, subd. 3a(5), and determined that Dohman was entitled to select any one limit of liability, either that of the League or that of State Farm. Id. at 225. Since Dohman sued State Farm, we concluded that State Farm was hable to Dohman for uninsured motorist benefits under its policy. Id.\\nAlthough Dohman touches upon the issue here, it is not squarely on point. We decided only that State Farm was liable to Dohman for uninsured motorist benefits. We did not decide whether the League owed a duty of contribution to State Farm. Nor did we interpret an \\\"other coverage\\\" provision. Consequently, Dohman is not controlling here.\\nContinental argues that since section 65B.49 is silent on contribution and the Horace Mann policy explicitly provides for contribution in its \\\"other coverage\\\" provision, Horace Mann should contribute. We agree. The relevant portion of the Horace Mann policy provides:\\nIf the insured is injured as a pedestrian or while occupying your car and other unin- snred motor vehicle coverage applies:\\n2. we are liable only for our share. Our share is that percent of the damages that the limit of liability of this policy bears to the total of all uninsured motor vehicle coverage applicable to the accident.\\n(Emphasis omitted.) Continental claims that interpreting this \\\"other coverage\\\" provision to provide coverage in this situation is consistent with Minnesota law, which generally accommodates policy language providing coverage broader than that required by statute. See, e.g., Minn.Stat. \\u00a7 65B.49, subd. 7 (1990) (insurer may provide more coverage than statutory minimum); Krueger v. State Farm Fire & Cas. Co., 510 N.W.2d 204, 209 (Minn.App.1993) (an insurance policy can include broader coverage than the minimum statutory requirements).\\nHorace Mann argues that the district court's holding is contrary to the express language in its policy because the \\\"other coverage\\\" provision requires that more than one policy apply to a loss before that clause will be triggered. Since only the Continental policy applies, the argument goes, the \\\"other coverage\\\" provision is never triggered. As Continental points out, however, under Horace Mann's interpretation, the \\\"other coverage\\\" provision would be useless in Minnesota because more than one policy would never be applicable after an injured pedestrian elects coverage. See Wyatt v. Wyatt, 239 Minn. 434, 437, 58 N.W.2d 873, 875 (1953) (\\\"A construction of an insurance policy which entirely neutralizes one provision should not be adopted if the contract is susceptible of another construction.\\\").\\nMoreover, the legislative history of section 65B.49 shows no intent to limit contribution under these circumstances. In 1985, the legislature amended section 65B.49, subd. 3a (formerly subd. 4) to prohibit judicially-imposed stacking of uninsured and un-derinsured coverages. 1985 Minn.Laws ch. 168, \\u00a7 11; In re State Farm Mut. Auto. Ins. Co., 392 N.W.2d 558, 561 (Minn.App.1986). The 1985 amendments also added subd. 3a(5) (formerly subd. 4(5)), which ties particular accident types to particular limits of coverage:\\n[I]f at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and underin-sured motorist coverages available to the injured person is the limit specified for that motor vehicle.\\nIf at the time of the accident the injured person is not occupying a motor vehicle, the injured person is entitled to select any one limit of liability for any one vehicle afforded by a policy under which the injured person is named insured.\\n1985 Minn.Laws. ch. 168, \\u00a7 11. The legislature's intent in enacting the 1985 amendments was to limit the total coverage available to injured persons. We find no evidence, however, that the legislature also intended to limit contribution that is expressly provided for in insurance policies.\\nWe hold that the legislature did not intend for section 65B.49, subd. 3a(5) to render an unselected policy inapplicable to such extent that a duty to contribute under a pertinent \\\"other coverage\\\" clause is avoided. Horace Mann's \\\"other coverage\\\" clause plainly provides liability where other insurance policies apply. When Lynskey was injured, both the Horace Mann policy and the Continental policy applied. By selecting coverage under one policy, Lynskey was merely choosing the total limit of coverage receivable; he was not limiting Continental's right to contribution from Horace Mann under the plain terms of Horace Mann's policy.\\n2. Since we conclude that Horace Mann is liable in contribution to Continental pursuant to the Horace Mann policy, we need not address whether Continental has an equitable right to contribution.\\nDECISION\\nThe district court correctly applied the law when it awarded summary judgment in favor of Continental on its contribution claim against Horace Mann.\\nAffirmed.\\n. Minn.Stat. \\u00a7 65B.49, subd. 3a requires pedestrians who are injured by uninsured motorists and who have more than one uninsured motorist policy to select coverage under one policy.\\n. Under the terms of Horace Mann's policy, it agreed to pay that percent of the damages that the limit of liability of its policy bears to the total of all uninsured coverage applicable to the accident. Accordingly, the court ordered it to pay \\u215b ($100,000/$600,000) of the $500,000 total damages.\\n. The statute has been interpreted to allow contractual stacking. Austin Mut. Ins. Co. v. Temptin, 435 N.W.2d 584, 587 (Minn.App.1989), pet. for rev. denied (Minn. Apr. 24, 1989).\"}"

minn/107047.json

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+"{\"id\": \"107047\", \"name\": \"IN RE IMPROVEMENT OF LAKE OF THE ISLES PARK. ANDREAS UELAND, APPELLANT\", \"name_abbreviation\": \"In re Improvement of Lake of the Isles Park\", \"decision_date\": \"1922-04-21\", \"docket_number\": \"No. 22,718\", \"first_page\": \"39\", \"last_page\": \"44\", \"citations\": \"152 Minn. 39\", \"volume\": \"152\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:41:31.960026+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holt, J., took no part.\", \"parties\": \"IN RE IMPROVEMENT OF LAKE OF THE ISLES PARK. ANDREAS UELAND, APPELLANT.\", \"head_matter\": \"IN RE IMPROVEMENT OF LAKE OF THE ISLES PARK. ANDREAS UELAND, APPELLANT.\\nApril 21, 1922.\\nNo. 22,718.\\nPark left in natural state special benefit to neighboring land.\\n1. Special 'benefits to lands in the locality of a -tract acquired and dedicated to -the public as -a park m-ay result from such -acquisition and dedication, although -the land is left in its natural state, and there may be an immediate assessment of such benefits.\\nSuccessive levies may be made for different improvements.\\n2. Successive special assessments may be levied if they are not for the same improvement. The power ito levy them is continuous and coextensive with benefits received.\\nCurbs and gutters on adjacent street do not. require concurrence of city council.\\n3. Under chapter 185, Laws 1911 as amended, curbs and gutters along the side of a street upon which a -park 'borders may be included in a special' assessment for benefits resulting from the improvement of the park, and the concurrence of the city council in the resolution of the park board authorizing the improvement is not necessary.\\nWhether public interest will be served not considered on appeal.\\n4. Whether or not the public interests will be served by a public improvement is a political and not a judicial question.\\nAndreas Ueland filed objections to tbe confirmation of tbe commissioners\\u2019 report to the board of park commissioners of\\\\the city of Minneapolis in tbe matter of tbe improvement of tbe Lake of tbe Isles Park. From tbe order confirming the report, objector appealed to tbe district court for Hennepin county where tbe appeal was beard by Montgomery, J., who confirmed tbe report, and appointed commissioners to reassess tbe benefits. From tbe final order, Jelley, J., confirming tbe report of tbe reassessment commissioners, Andreas Ueland, Frank C. Murray and others appealed.\\nAffirmed.\\nUeland & Ueland, for appellant.\\nJames D. Shearer, for respondent.\\nReported in 188 N. W. 59.\", \"word_count\": \"1788\", \"char_count\": \"10275\", \"text\": \"Lees, O.\\nThis is an appeal by a property owner from tbe order reviewed in Improvement of Lake of tbe Isles Park, supra, page 29, in which many of tbe questions raised on this appeal are disposed of. We shall refer only to those which were not there involved.\\nIn 1890 tbe park board purchased and designated as a park 25 acres >of land south of Lake Calhoun. Tbe purchase price was $113,000. Tbe board resolved to assess that amount upon lands specially benefited. Appellant's property was accordingly assessed $3,320, and tbe assessment was paid. In 1908 tbe board acquired additional land on the shore of the lake for a- parkway and another assessment of $498 was levied on appellant's property and paid. About 10 acres of the tract first purchased was low marshy ground, not then in condition to be used for any purpose. The second tract was not passable for vehicles. The park board now proposes to improve both tracks of low land and to assess two-thirds of the cost upon private property specially benefited, including appellant's property already assessed as above stated. He strenuously objects on the ground that this will' be a second assessment for the same benefit. If that be true, the assessment cannot be sustained. State v. District Court for St. Louis County, 66 Minn. 161, 68 N. W. 860. Prior to the enactment of the Elwell Law, the special acts applicable to Minneapolis provided that, as soon as the amount required for the purchase and condemnation of land selected for a park or parkway had been ascertained with reasonable certainty, the park board should determine what percentage, if. any, of the amount so ascertained, should be assessed upon the lands benefited by such park or parkway. Chapter 281, p. 404, Sp. Laws 1883, and chapter 30, p. 560, Sp. Laws 1889. Assessments were limited to a percentage of the cost of the land. No authority was granted to assess for benefits from the improvement of the land. The resolution for the first assessment contained the explicit statement that it was for 100 per cent of the cost of the land. Clearly no assessment was authorized and none was levied for benefits which might result from subsequent improvements. The conclusion would seem to follow that the assessment now levied is for new benefits.\\nAppellant vigorously combats this conclusion. He insists that it is absurd to say that his land was benefited by having the marsh in front of it owned by the city instead of by private individuals; that there could be no valid assessment except for actual benefits, which could only accrue when the unsightly spot was transformed into a park or parkway, and that the previous assessments included the cost of the land and benefits resulting from putting it to the use for which it was acquired. The argument is plausible and is reinforced by a dictum in the opinion of Mr. Justice Mitchell in State v. District Court for St. Louis County, 66 Minn. 161, 68 N. W. 860, and by the definition of \\\"park\\\" and \\\"parkway\\\" in Kloepfert v. City of Minneapolis, 90 Minn. 158, 95 N. W. 908, but we are unable to give it our approval. When land is acquired for and designated as a public park, the owners of adjoining lands have the assurance that an open plot of ground, either in its natural state or with such additions as are appropriate for parks and parkways, will be permanently maintained. They are assured against the uses to which it may be put while privately owned, uses which not infrequently are detrimental to the value of adjacent lands.'\\nThe first step in the establishment of a park is to acquire the land and dedicate it to public use. This alone may enhance the value of property in the neighborhood, although the land is left in a state of nature. It may even confer greater benefits than the subsequent improvement or adornment of the land, and an immediate assessment of such benefits may be made. Thus in State v. District Court of Ramsey County, 75 Minn. 292, 77 N. W. 968, an assessment to cover part of the purchase price of Phalen Park was levied as soon as the land was acquired, and in Foster v. Board of Park Commrs. 133 Mass. 321, followed in Jones v. Met. Park Commrs. 181 Mass. 494, 64 N. E. 76, and cited with approval in Wilson v. Lambert, 168 U. S. 611, 18 Sup. Ct. 217, 42 L. ed. 599, it was held that a betterment assessment could be laid for locating and laying out a park before the park was completed. In Foster v. Board of Park Commrs. 131 Mass. 225, it was held that there could be no\\u00a1 assessment for the estimated expense of constructing a park in the future. The reason given was that it might be constructed at a less expense or not constructed at all, hence it was necessary that the expense should actually be paid or incurred. This seems obvious, for the cost of an improvement necessarily enters into every special assessment. Until it has been ascertained with some degree of certainty, there is no basis for an assessment. The previous assessments upon appellant's land were ordered before any improvements were made or directed. There was no undertaking to make future improvements and no duty to make them was imposed by statute. If benefits had been assessed on that basis, the assessment could not have been sustained. An assessment cannot be levied for benefits not secured, In re Minne- tonka, 56 Minn. 513, 519, 58 N. W. 295, 45 Am. St. 494, or in excess of actual benefits, State v. City of Ely, 129 Minn. 40, 151 N. W. 545, Ann. Cas. 1916B; 189. We conclude that the previous assessments were neither authorized nor levied for benefits other than such as resulted from the acquisition of the land in its natural state.\\nOur attention has not been called to any obstacles to successive special assessments if they are not for the same improvement. This court has said that the power to levy such assessments is continuing and coextensive with benefits received, and, whenever its exercise becomes again necessary by reason of the inutility of the original improvement, it may be again exerted. Karst v. St. Paul S. & T. F. B. Co. 22 Minn. 118; State v. District Court of Ramsey County, 80 Minn. 293-310, 83 N. W. 183; McMillan v. Board of Co. Commrs. of Freeborn County, 93 Minn. 16, 100 N. W. 384, 1125. The authorities generally support this view. Dillon, Mun. Corp. (4th ed.) \\u00a7 780; (5th ed.) \\u00a7 1151; Page & Jones, Taxation by Assessment, \\u00a7 954; McKevitt v. Hoboken, 45 N. J. Law, 482; Sheley v. City of Detroit, 45 Mich. 431, 8 N. W. 52; Shannon v. Omaha, 73 Neb. 507, 103 N. W. 53, 106 N. W. 592.\\nIt is contended that the assessment is void because in part it is to pay for curbstones, gutters and sidewalks on streets upon which the parks or parkways abut and there was no concurrent resolution by the city council as provided by sections 1 and 6 of the Elwell Law. We are of the opinion that such a resolution is not necessary where a park bordering on a street is to be thus improved. Streets come in contact with parks and parkways. To complete the improvement of the latter, curbs and gutters on the park side of the street are necessary and so are sidewalks. Primarily they are park rather than street improvements, and hence they may be made at the direction of the park board alone.\\nA portion of appellant's brief is devoted to an indictment of the growing tendency to trample upon the rights of the individual when thought to conflict with those of the public. All. that is said may properly be addressed to the legislative department of the state government. Whether a public improvement shall be undertaken when wages are high and materials are expensive, or the improve ment deferred until it will cost less or be dispensed with entirely in the interests of economy, are not judicial questions. Whether or not too much power has been lodged with the park board and city council, who are laying undue burdens upon helpless taxpayers, is a political question.\\nIn determining whether a special assessment shall be sustained, the courts will look to see that there has been a compliance with the requirements of the statutes and Constitution. Beyond that they may not go without usurping power not committed to them.\\nThis, in connection with what has been said in the opinion in the companion appeal, covers all of the assignments of error which require discussion.\\nOrder affirmed.\\nHolt, J., took no part.\"}"

minn/10707688.json

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+"{\"id\": \"10707688\", \"name\": \"In the Matter of Andrew D. McGAUGHEY\", \"name_abbreviation\": \"In re McGaughey\", \"decision_date\": \"1995-09-01\", \"docket_number\": \"No. C6-94-952\", \"first_page\": \"621\", \"last_page\": \"625\", \"citations\": \"536 N.W.2d 621\", \"volume\": \"536\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:30:42.903724+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Andrew D. McGAUGHEY.\", \"head_matter\": \"In the Matter of Andrew D. McGAUGHEY.\\nNo. C6-94-952.\\nSupreme Court of Minnesota.\\nSept. 1, 1995.\\nKurt M. Anderson, Minneapolis, for appellant.\\nMichael 0. Freeman, Hennepin County Atty., Gayle C. Hendley-Zappia, Asst. County Atty., Minneapolis, for respondent.\", \"word_count\": \"1613\", \"char_count\": \"10482\", \"text\": \"OPINION\\nANDERSON, Justice.\\nThis appeal is from a decision of the Minnesota Court of Appeals in which that court affirmed the trial court's civil commitment of Andrew D. McGaughey as a mentally ill person. McGaughey argues that the record does not support by clear and convincing evidence the trial court's finding that McGaughey poses a threat of physical harm either to himself or to others and that dual commitment to the Hennepin County Medical Center and the Anoka Metro Regional Treatment Center was not the least restrictive alternative available. We reverse.\\nAppellant, Andrew McGaughey, is a 53-year-old man who has been diagnosed as suffering from chronic schizophrenia. In the summer of 1993, McGaughey moved from Washington, D.C. to Minneapolis to live with his brother. Within three to four days of moving to Minneapolis, McGaughey was hospitalized for an asthma attack. After a short stay in the hospital, he returned to his brother's home, but he was immediately rehospi-talized after another asthma attack. During this second hospitalization, McGaughey had an appendectomy. As a complication of the surgery, he developed urinary problems and has become intermittently incontinent.\\nOn July 10, 1993, McGaughey was discharged from the hospital to Queen Care Center, a nursing home. While at Queen, McGaughey was treated with medication for his schizophrenia, although he continued to exhibit symptoms of his mental illness. Employees at Queen reported that McGaughey engaged in some inappropriate behavior, including staring at and sometimes following female employees and making inappropriate sexual comments. During his stay at Queen, McGaughey required several short-term voluntary in-patient hospitalizations at the Fair-view-Riverside Medical Center (\\\"FRMC\\\").\\nDuring his hospitalizations at FRMC, MeGaughey continued to engage in some inappropriate behavior. In one incident, MeGaughey allegedly squeezed or rubbed his genitals through his clothing while standing over a seated female patient who was using the telephone. In another incident, MeGau-ghey, while sitting down, laid his head against the chest of a female patient who was standing next to him. On several occasions, MeGaughey eonsensually held hands with female patients, in violation of FRMC rules. MeGaughey also made repeated, nonthreatening phone calls to public figures and businesses, either seeking employment or voicing large-scale, grandiose business plans. Finally, MeGaughey continued to be intermittently incontinent and often needed \\\"redirection\\\" to shower or to attire himself in clean clothing.\\nOn March 14, 1994, MeGaughey was again hospitalized at FRMC. Subsequently, FRMC determined that its acute-care facility was not the best environment in which to treat McGaughejds mental illness. The FRMC staff persons responsible for McGaughey's treatment recommended that he be civilly committed. On March 30, 1994, the FRMC administrator filed a petition for judicial commitment in Hennepin County District Court. A commitment hearing was held on April 18, 1994. On April 20, 1994, the trial court filed its order dually committing MeGaughey as \\\"mentally ill\\\" to the Hennepin County Medical Center and the Anoka Regional Treatment Center. On October 4, 1994, in an unpublished decision, the Minnesota Court of Appeals affirmed the trial court's commitment order. In re McGaughey, C6-94-952, 1994 WL 534849 (Minn.App., Oct. 4, 1994).\\nI.\\nWe will not set aside the trial court's findings unless they are clearly erroneous. See Minn.R.Civ.P. 52.01. To civilly commit a person as mentally ill, the trial court must find by clear and convincing evidence that the person is \\\"mentally ill,\\\" as defined by the Minnesota Civil Commitment Act (\\\"Commitment Act\\\"). Minn.Stat. \\u00a7 253B.02, subd. 13 & 253B.09, subd. 1 (1994). The Commitment Act defines a mentally ill person as:\\n[A]ny person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which\\n(a) is manifested by instances of grossly disturbed behavior or faulty perceptions; and\\n(b) poses a substantial likelihood of physical harm to self or others as demonstrated by:\\n(i) a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment, or\\n(ii)- a recent attempt or threat to physically harm self or others. This impairment excludes (a) epilepsy, (b) mental retardation,\\n(c) brief periods of intoxication caused by alcohol or drugs, or (d) dependence upon or addiction to any alcohol or drugs.\\nMinn.Stat. \\u00a7 253B.02, subd. 13 (1994).\\nThe statute clearly requires that the substantial likelihood of physical harm must be demonstrated by an overt failure to obtain necessary food, clothing, shelter, or medical care or by a recent attempt or threat to harm self or others. Minn.Stat. \\u00a7 253B.02, subd. 13(b)(i) & (ii); see Enberg v. Bonde, 331 N.W.2d 731, 736-38 (Minn.1983) (recognizing that civil commitment of mentally ill persons requires a recent overt act, attempt or threat of harm to self or to others). Therefore, speculation as to whether the person may, in the future, fail to obtain necessary food, clothing, shelter, or medical care or may attempt or threaten to harm self or others is not sufficient to justify civil commitment as a mentally ill person. This is not to say, however, that the person must either come to harm or harm others before commitment as a mentally ill person is justified. The statute requires only that a substantial likelihood of physical harm exists, as demonstrated by an overt failure to obtain necessary food, clothing, shelter, or medical care or by a recent attempt or threat to harm self or others.\\nIn its April 20, 1994 commitment order, the trial court concluded that McGaughey is a mentally ill person, as defined by section 253B.02, subdivision 13. The court first found that McGaughey has schizophrenia, a substantial psychiatric disorder. McGau-ghey does not challenge this conclusion. The court next found that McGaughey poses a substantial likelihood of causing physical harm, \\\"as demonstrated by his recent readmission to FRMC.\\\" McGaughey does challenge this conclusion. The court noted that \\\"[a]t Queen [McGaughey] had become labile, was following the nurses, and became extremely inappropriate with sexual comments and behaviors.\\\" The court also noted that, while at FRMC, McGaughey \\\"inappropriately touched females, stared at females to the point of making them uncomfortable, and engaged in one incident of masturbation near the head of a female patient who was using the telephone.\\\" Finally, the court noted that McGaughey needed assistance with his daily living needs, especially with respect to bathing and to attiring himself in clean clothing.\\nWe conclude that the trial court's findings are insufficient to support the conclusion that McGaughey is a mentally ill person, as defined by the Commitment Act. The record does not show by clear and convincing evidence that McGaughey poses a substantial likelihood of physical harm to himself or to others.\\nFirst, none of the witnesses who testified at McGaughey's commitment hearing indicate ed that McGaughey has at any time failed to obtain necessary food, clothing, shelter, or medical care. McGaughey's case manager at FRMC, Jenny Just, testified that McGau-ghey had difficulty maintaining hygiene as a result of his intermittent incontinence. Just also speculated as to what McGaughey would do if he were released into the community. She opined that McGaughey would probably provide food and shelter for himself. She did not believe, however, that he would seek medical assistance for mental health issues. Just was also concerned that McGaughey may forget to take his medications on his own, although she acknowledged that, while at FRMC, McGaughey was very compliant with his medications. Just admitted that she had no reason to believe that McGaughey would refuse to take his medications outside of a hospital environment. Nothing in Just's testimony indicates that McGaughey has demonstrated a substantial likelihood of harm to himself by failing to obtain food, clothing, shelter, or medical care. Aside from her testimony about McGaughey's hygiene problems, Just's testimony was entirely based on unsupported speculation. Moreover, McGaughey's intermittent hygiene problems simply do not amount to a substantial likelihood of physical harm to himself.\\nSecond, none of the witnesses who testified at McGaughey's commitment hearing indicated that McGaughey had made any recent attempt or threat to physically harm himself or others. Although McGaughey engaged in some inappropriate sexual behavior at Queen and at FRMC, the behavior was not assaul-tive and primarily involved staring at and sometimes following female employees and patients and making inappropriate sexual comments. The only incident reported in the record in which McGaughey touched another person involved McGaughey briefly laying his head against the chest of a female patient. Jenny Just testified that McGaughey does not have a history of any type of assaul-tive behavior, and both Just and McGau-ghey's court-appointed examiner, Dr. Vraa, opined that McGaughey does not pose a danger either to himself or to the community.\\nWe conclude that McGaughey does not meet the statutory definition of a mentally ill person because the record does not show by clear and convincing evidence that McGau-ghey poses a substantial likelihood of physical harm to himself or to others. We therefore reverse his civil commitment as a mentally ill person and order that he be fully discharged.\\nBecause we conclude that the trial court erred in committing McGaughey as a mental ly ill person, we give no opinion as to whether McGaughey's dual commitment to the Hennepin County Medical Center and the Anoka Regional Treatment Center was the least restrictive alternative available.\\nReversed.\\n. For example, in applying the commitment statute, the Minnesota Court of Appeals has followed this approach. See In re Terra, 412 N.W.2d 325 (Minn.App.1987); In re Burmeister, 391 N.W.2d 89 (Minn.App.1986).\"}"

minn/10711169.json

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+"{\"id\": \"10711169\", \"name\": \"Brenda GREENWALDT, Respondent, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant\", \"name_abbreviation\": \"Greenwaldt v. Illinois Farmers Insurance Co.\", \"decision_date\": \"1994-12-27\", \"docket_number\": \"No. C2-94-1760\", \"first_page\": \"202\", \"last_page\": \"205\", \"citations\": \"526 N.W.2d 202\", \"volume\": \"526\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:54:26.333752+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by HUSPENI, P.J., and SCHUMACHER and MANSUR, JJ.\", \"parties\": \"Brenda GREENWALDT, Respondent, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant.\", \"head_matter\": \"Brenda GREENWALDT, Respondent, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant.\\nNo. C2-94-1760.\\nCourt of Appeals of Minnesota.\\nDec. 27, 1994.\\nReview Denied Feb. 14, 1995.\\nRobert H. Gross and Elliot L. Olsen, Minnetonka, for appellant.\\nMitchel I. Kirshbaum, Minneapolis, for respondent.\\nConsidered and decided by HUSPENI, P.J., and SCHUMACHER and MANSUR, JJ.\\nRetired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 10.\", \"word_count\": \"1111\", \"char_count\": \"7317\", \"text\": \"OPINION\\nSCHUMACHER, Judge.\\nRespondent Brenda Greenwaldt sued appellant Illinois Farmers Insurance Company (Illinois Farmers) to recover underinsured motorist benefits for damages sustained in an automobile accident that occurred on October 3, 1988. Illinois Farmers challenges the district court's award of underinsured motorist benefits, arguing the district court erred in determining the tortfeasor's vehicle was un-derinsured. Greenwaldt challenges the district court's determination that her award should be reduced by her comparative fault before deducting any no-fault benefits. We affirm in part and reverse in part.\\nFACTS\\nGreenwaldt's car collided with a car driven by Roger Baumgartner on October 3, 1988. Greenwaldt brought an action against Baum-gartner for injuries she suffered in the collision. Baumgartner had $50,000 of liability insurance. Greenwaldt accepted $13,000 from Baumgartner in settlement of her action. Greenwaldt then demanded arbitration to recover underinsured motorist benefits from her insurer, Illinois Farmers. A panel of arbitrators determined that Greenwaldt was 40% at fault in the collision and that she had suffered $238,000 in damages.\\nGreenwaldt petitioned the district court for a confirmation of the arbitrators' award. Illinois Farmers opposed confirmation, arguing that after reductions for comparative fault and no-fault benefits paid and payable, Baumgartner's vehicle was not underinsured.\\nThe district court held that Baumgartner's vehicle was underinsured and Greenwaldt was entitled to underinsured motorist benefits. The district court reduced the arbitrators' award by the amount of Greenwaldt's comparative fault and then deducted no-fault benefits paid and payable from the remaining amount to arrive at a total of $36,200 in underinsured motorist benefits. The district court entered judgment for Greenwaldt on May 26, 1994.\\nIllinois Farmers challenges the district court's determination that Baumgartner's vehicle was underinsured. Greenwaldt filed a notice of review challenging the district court's order of reductions for comparative fault and no-fault benefits.\\nISSUES\\n1. Did the district court err in determining that the offset provision of Minn.Stat. \\u00a7 65B.51 is not applicable for purposes of defining an underinsured vehicle?\\n2. Did the district court err in reducing Greenwaldt's award by the amount of her comparative fault before deducting no-fault benefits?\\nANALYSIS\\nThe facts of this ease are undisputed. The issues on appeal present pure questions of law. Where the material facts are not in dispute, this court need not defer to the district court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).\\n1. Illinois Farmers argues the district court erred in determining that Baumgart-ner's vehicle was underinsured. An underin-sured vehicle is defined as:\\na motor vehicle \\u215c to which a bodily injury liability policy applies at the time of the accident but its limit for bodily injury liability is less than the amount needed to compensate the insured for actual damages.\\nMinn.Stat. \\u00a7 65B.43, subd. 17 (1988). The No-Fault Act further provides:\\nWith respect to a cause of action in negligence accruing as a result of injury arising out of the use of a motor vehicle \\u215c \\u215c \\u215c be deducted from any recovery the value of basic or optional economic loss benefits paid or payable, or which would be payable but for any applicable deductible.\\nMinn.Stat. \\u00a7 65B.51, subd. 1 (1988).\\nRelying on Richards v. Milwaukee Ins. Co., 505 N.W.2d 97 (Minn.App.1993), rev'd, 518 N.W.2d 26 (Minn.1994), the district court held that the offset provision of section 65B.51 is not applied in calculating actual damages for purposes of defining an underin-sured motor vehicle. See id., 505 N.W.2d at 100. In Richards v. Milwaukee Ins. Co., 518 N.W.2d 26, 28 (Minn.1994), however, the supreme .court held that the determination of whether a vehicle is underinsured must be made after deductions for no-fault benefits. While the district court applied the correct law at the time of its decision, we must reverse the district court's decision and apply the supreme court's rationale from Richards to determine whether Baumgartner's vehicle was underinsured.\\n2. Greenwaldt argues the district court erred in reducing her award by the amount of her comparative fault before deducting no-fault benefits. In 1990, the legislature added the following language to section 65B.51:\\nIn any case where the claimant is found to be at fault under section 604.01, the deduction for basic economic loss benefits must be made before the claimant's damages are reduced under section 604.01, subdivision 1.\\n1990 Minn.Laws ch. 555, \\u00a7 6. The added language applies \\\"to all causes of action arising on or after\\\" May 4, 1990. Id. at \\u00a7 24.\\nThe district court used the 1988 version of the statute because it was in effect at the time of the collision. Greenwaldt argues the district court should have used the 1990 version because her \\\"cause of action\\\" for underinsured motorist benefits did not arise until July, 1992, when she settled the underlying liability action with Baumgartner. We disagree. The terms \\\"cause of action\\\" and \\\"claim\\\" are not interchangeable. See Employers Mutual Cos. v. Nordstrom, 495 N.W.2d 855, 856 (Minn.1993) (\\\"An underin-sured motorist claim is both alike and unlike a tort cause of action.\\\" (emphasis added)). Because a tort cause of action may give rise to any number of claims, including an under-insured motorist claim, the district court determined correctly that Greenwaldt's cause of action arose on the date of the collision.\\nTherefore, applying Minn.Stat. \\u00a7 65B.51, subd. 1 (1988), and the supreme court's analysis from Richards v. Milwaukee Ins. Co., 518 N.W.2d 26 (Minn.1994), the district court should have arrived at the following calculations:\\nItem Arbitrator's Def. Fault Award Adjustment for Net Award No Fault Benefits Remaining\\nPast Medical Exp. 60% $ 56,000 $ 33,600 $ 33,600 $\\nFuture Medical Exp. 60% 12,000 7,200 7,200\\nPast Wage Loss 60% 100,000 60,000 60,000\\nFuture Lost Income 20,000 12,000 12,000\\nPast Pain/Suffering 30,000 60% 18,000 18,000\\nFuture Pain/Suffering 20,000 60% 12,000 12,000\\nTotal $238,000 $142,800 $49,200\\nBecause $49,200 is less than Baumgartner's liability coverage of $50,000, Baumgartner's vehicle was not underinsured. Illinois Farmers is therefore not liable to Greenwaldt for underinsured motorist benefits.\\nDECISION\\nThe district court determined correctly that Greenwaldt's cause of action arose at the time of the collision rather than when she submitted a claim for underinsured motorist benefits. The determination of whether a vehicle is underinsured, however, must be made after deductions for no-fault benefits paid and payable.\\nAffirmed in part and reversed in part.\"}"

minn/109329.json

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+"{\"id\": \"109329\", \"name\": \"BRIDGET HANNAN v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY\", \"name_abbreviation\": \"Hannan v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.\", \"decision_date\": \"1923-02-09\", \"docket_number\": \"No. 23,191\", \"first_page\": \"492\", \"last_page\": \"494\", \"citations\": \"154 Minn. 492\", \"volume\": \"154\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:14:28.525039+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BRIDGET HANNAN v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY.\", \"head_matter\": \"BRIDGET HANNAN v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY.\\nFebruary 9, 1923.\\nNo. 23,191.\\nNegligent driving of car against safety gates at highway crossing.\\nThe plaintiff, who drove her auto into the lowered railway safety gates over a street at 6 in the afternoon, a half hour after sunset, was negligent and cannot recover for an injury sustained.\\nAction in the district court for Hennepin county to recover $5,000 for injuries received at defendant\\u2019s crossing gates. The case was tried before Montgomery, J., who at the close of the testimony denied defendant\\u2019s motion for a directed verdict, and a jury which returned a verdict for $1,000. From an order denying its motion for judg- \\u2022 ment notwithstanding the verdict or for a new trial, defendant appealed.\\nReversed.\\nJohn E. Palmer and John L. Erdall, for appellant.\\nJohn J. Keefe, for respondent.\\nReported in 191 N. W. 922.\", \"word_count\": \"876\", \"char_count\": \"4883\", \"text\": \"Dibeel, J.\\nAction to recover damages for personal injuries. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or a new trial.\\nThe plaintiff was driving a Ford northerly on Second avenue north in Minneapolis at 6 o'clock, a half hour after sunset, on October 18, 1920, and ran into the lowered safety gates of the defendant and was injured. The lights on her car were lighted and were in good condition. The accident was in a wholesale district. Traffic had substantially ceased. There were no distracting circumstances. The plaintiff was familiar with the surroundings. She- had driven over the crossing often, though she does not recall having driven across in the dark. She knew that there were gates. There were no lights on the gates. Her testimony would bear the construction that she supposed that when gates were down after dark there were warning lights upon them.\\nWe have held that open gates are in the nature of an assurance of safety, and that to some extent a driver approaching a crossing, though he must still exercise care, may guide his conduct, within reasonable limits, upon the assurance which open gates give. Woehrle v. Minnesota T. Co. 82 Minn. 165, 84 N. W. 791, 52 L. R. A. 348; Stegner v. Chicago, M. & St. P. Ry. Co. 94 Minn. 166, 102 N. W. 205; Wardner v. Great Northern Ry. Co. 96 Minn. 382, 104 N. W. 1084. The absence of a light at night, when there customarily is one, or where the driver is justified in assuming that there will be one, may have somewhat the same effect as an assurance.\\nThe plaintiff and two other witnesses testify that it was very dark. The plaintiff says that she did not see the gates until she was right upon them. She and two witnesses say that right after the accident they experimented by approaching the gates from the direction from which the auto came, and were unable to see them at a distance farther away than from 10 to 20 feet. In these experiments they did not have the aid of the auto lights. There is other evidence that there was ample electric light at the crossing and that objects were easily visible. The gateman and some others say they saw the plaintiff coming some distance back. The arms of the gates extended from either side of the street, tapering towards the ends, and meeting at the center of the street, where they were 2-\\u00a3 inches wide and some 3 feet and 8 inches above the street surface.\\nIn Heiden v. Minneapolis St. Ry. Co. 154 Minn. 102, 191 N. W. 254, we held it the duty of a motorman operating a street car after dark, it being his duty to be on the lookout for travelers, to have his car under such control that he could bring it to a stop within such distance as his headlight enabled him to see a vehicle on the street. The case of Lawson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. 30, and other cases, were cited, holding, under the circumstances there existing, that a driver after dark is guilty of negligence if he fails to have his auto under such control that he can avoid striking an obstruction within the distance illuminated by his light.\\nIt is the view of a majority of the court that the plaintiff was negligent and that her negligence prevents a recovery for her injury. In coming to this conclusion the evidence that it was dark at the crossing and that the gates were not seen until the plaintiff was upon them has not been overlooked. The dusk or twilight may have deceived the plaintiff, and the car lights may not have been as serviceable as if it had been darker. But if the plaintiff had used ordinary care as she came to the crossing, considering what she knew of it, and the condition of the light, and the means at hand for avoiding danger, there would have been no injury. We need not discuss the question of the defendant's negligence.\\nThe case has been tried out. There should not be a Second trial. There should be judgment notwithstanding.\\nOrder reversed.\"}"

minn/11197910.json

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+"{\"id\": \"11197910\", \"name\": \"Timothy M. SMITH, Appellant, v. SOO LINE RAILROAD COMPANY, d/b/a CP Rail System, Respondent\", \"name_abbreviation\": \"Smith v. Soo Line Railroad\", \"decision_date\": \"2000-09-19\", \"docket_number\": \"No. C7-00-338\", \"first_page\": \"437\", \"last_page\": \"440\", \"citations\": \"617 N.W.2d 437\", \"volume\": \"617\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:48:19.864903+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by SHUMAKER, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.\", \"parties\": \"Timothy M. SMITH, Appellant, v. SOO LINE RAILROAD COMPANY, d/b/a CP Rail System, Respondent.\", \"head_matter\": \"Timothy M. SMITH, Appellant, v. SOO LINE RAILROAD COMPANY, d/b/a CP Rail System, Respondent.\\nNo. C7-00-338.\\nCourt of Appeals of Minnesota.\\nSept. 19, 2000.\\nReview Denied Nov. 21, 2000.\\nMichael F. Tello, Patrick R. Gillespie, Tello & Associates, Anoka, for appellant.\\nJulius William Gernes, Scott Howard Rauser, Spence, Ricke, Sweeney & Gernes, St. Paul, for respondent.\\nConsidered and decided by SHUMAKER, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.\\nRetired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, \\u00a7 10.\", \"word_count\": \"1396\", \"char_count\": \"8715\", \"text\": \"OPINION\\nG. BARRY ANDERSON, Judge\\nAppellant railroad worker, allegedly injured while carrying a five-gallon water bottle up the stairs of his work building, sought relief under 45 U.S.C. \\u00a7 51 (1994), the Federal Employer's Liability Act (FELA). The district court granted respondent railroad summary judgment based on lack of actual or constructive notice that employees were carrying bottles. Because appellant has shown that his employer and agent saw bottles stored on a building's first floor and knew they were used by third-floor employees who had no elevator to transport them, appellant has supplied the \\\"scintilla\\\" of evidence necessary to prove constructive notice and survive summary judgment under FELA. Accordingly, we reverse.\\nFACTS\\nIn response to ongoing water quality problems at its St. Paul rail yard, respondent, Soo Line Railroad Company, contracted with an agent to deliver bottled water to the third floor of the yard's retarder tower. Eight years later, the agent stopped delivering most of the five-gallon bottles to the third floor, and instead began leaving nearly all of the bottles on the retarder tower's first floor. The retarder tower was not accessible to the public, and no one reported any problems or raised any safety concerns about transporting the bottled water from the first to the third floor.\\nAppellant Timothy M. Smith worked on the third floor of the retarder tower. One morning in July 1998 appellant found the water dispenser empty. Appellant took the empty bottle downstairs, lifted a full bottle to his shoulder, and felt a snap in his back while climbing the stairs. Appellant did not feel any pain and continued with his work. Over the next several days, however, he experienced worsening back pain and ultimately underwent surgery.\\nAppellant's supervisor observed some full, five-gallon, bottles of water on the first floor of the retarder tower, but never saw employees carrying water bottles nor received any complaints concerning water delivery to the tower's third floor. Similarly, the manager of yard operations did not know employees were carrying water to the top of the retarder tower; he did not receive any complaints either. It was his understanding that the agent was delivering the water to the retarder tower's third floor as arranged.\\nAppellant's complaint alleged, among other things, that respondent negligently caused his injury in violation of the Federal Employers Liability Act, 45 U.S.C. \\u00a7 51 (1994) (FELA). Respondent denied the allegations and, following several months of discovery, moved for summary judg ment. The district court granted respondent's motion on the basis that respondent did not have actual or constructive notice that employees were carrying the bottled water from the retarder tower's first floor to the third floor.\\nISSUE\\nDid the district court err by granting summary judgment on the ground that, as a matter of law under FELA, respondent railroad did not have actual or constructive notice that employees were carrying water bottles?\\nANALYSIS\\nAppellant argues that the district court erred by granting respondent summary judgment on the basis that respondent lacked actual or constructive notice that employees were manually carrying bottled water up the retarder tower stairs.\\nSummary judgment is properly granted if the\\npleadings, 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 either party is entitled to judgment as a matter of law.\\nMinn. R. Civ. P. 56.03. On appeal from a summary judgment, we determine whether there are triable issues of material fact and whether the court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We view the evidence in the light most favorable to the party against whom the motion was granted. Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).\\nUnder the Federal Employer's Liability Act, 45 U.S.C. \\u00a7 51 (1994) (FELA), a railroad has a duty to provide its employees with a reasonably safe workplace. Ackley v. Chicago & N.W. Transp. Co., 820 F.2d 263, 266-67 (8th Cir.1987). A railroad breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform or protect its employees. Gallose v. Long Island R. Co., 878 F.2d 80, 84-85 (2nd Cir.1989). The railroad's duty extends to negligent acts of third-party agents engaged in the operational activities of the railroad. Nivens v. St. Louis S.W. Rwy. Co., 425 F.2d 114, 119 (5th Cir.1970). It is the actual or constructive knowledge of a hazardous condition that gives rise to the railroad's duty. Gallose, 878 F.2d at 85.\\nTo prove negligence, a FELA plaintiff must offer evidence proving the common law elements of negligence. Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir.1994). But a plaintiffs burden of proof to present a case to the jury is significantly lighter under FELA than it would be in an ordinary negligence case. Habrin v. Burlington Northern Ry. Co., 921 F.2d 129, 132 (7th Cir.1990) (providing examples of FELA actions submitted to the jury based only on \\\"evidence scarcely more substantial than pigeon bone broth\\\"). The Minnesota Supreme Court observed that FELA requires only a \\\"scintilla\\\" of evidence to establish negligence. Hauser v. Chicago, Milwaukee, St. Paul & Pac. R. Co. 346 N.W.2d 650, 653 (Minn.1984).\\nAppellant contends that he presented sufficient evidence that respondent knew or should have known that employees were carrying water to the third floor of the retarder tower. Appellant supports his argument with: (1) a co-worker's statement that \\\"[t]here have been complaints of no water, or of having to supply it yourself,\\\" (2) a supervisor's testimony that he saw the large water bottles stored on the first floor of the retarder tower; and (3) appellant's own testimony that the agent stopped delivering all of the bottles to the third floor nine months before his alleged injury.\\nThe district court determined that appellant failed to show that respondent had actual or constructive notice of a dangerous condition. We disagree. Respondent knew there were no elevators or similar lifts in the tower, that the tower lacked potable drinking water, and the only way to transport the large bottles of drinking water to the tower's third floor was to carry it. Both appellant's supervisor and respondent's water delivery agent knew the bottles stored on the tower's first floor were used on the third floor. Accordingly, respondent should have known, through the exercise of due care, that employees might have undertaken the task of carrying the large water bottles to the third floor of the retarder tower.\\nWhile appellant's evidence on the issue of notice is minimal and, to say the least, less than overpowering, given that we are required to view appellant's evidence in light of the extremely low burden of proof standard applicable to FELA litigation, we conclude that appellant has supplied the \\\"scintilla\\\" of evidence necessary to survive summary judgment. Because the district court erred by concluding that respondent lacked actual or constructive notice of employees carrying bottled water, we reverse the district court's grant of summary judgment to respondent.\\nDECISION\\nA FELA plaintiff need only present a scintilla of evidence tending to show negligence to survive summary judgment. A FELA plaintiff who shows that the railroad and an agent of the railroad knew employees used bottled water on a building's third floor and saw the bottles stored on the first floor meets the very low burden of proving the railroad had constructive notice of employees carrying water.\\nReversed.\\n. We note that although Hauser involved review of a directed verdict, not summary judgment, a FELA plaintiffs burden of proof remains the same in both procedural contexts. See Williams v. National R.R. Passenger Corp., 161 F.3d 1059, 1061 (7th Cir.1998) (reciting, in a summary judgment context, the low evi-dentiary burden of a FELA plaintiff).\"}"

minn/11484128.json

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+"{\"id\": \"11484128\", \"name\": \"STATE of Minnesota, Respondent, v. Deborah Ann KENARD, petitioner, Appellant\", \"name_abbreviation\": \"State v. Kenard\", \"decision_date\": \"2000-02-10\", \"docket_number\": \"No. C1-98-1211\", \"first_page\": \"440\", \"last_page\": \"445\", \"citations\": \"606 N.W.2d 440\", \"volume\": \"606\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:51:36.906854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Deborah Ann KENARD, petitioner, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Deborah Ann KENARD, petitioner, Appellant.\\nNo. C1-98-1211.\\nSupreme Court of Minnesota.\\nFeb. 10, 2000.\\nJohn M. Stuart, Minnesota State Public Defender, Marie L. Wolf, Assistant State Public Defender, Minneapolis, for appellant.\\nMike Hatch, Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, for respondent.\", \"word_count\": \"2951\", \"char_count\": \"18411\", \"text\": \"OPINION\\nPAGE, Justice.\\nAppellant Deborah Ann Kenard was convicted of one count of aiding an offender under Minn.Stat. \\u00a7 609.495, subd. 1 (1998) and one count of aiding an offender under Minn.Stat. \\u00a7 609.495, subd. 3 (1998) \\\\ for her involvement in concealing Ronald Hare's murder. Kenard was sentenced to one year and one day for her conviction under Minn.Stat. \\u00a7 609.495, subd. 1, which is a severity level I offense under the Minnesota Sentencing Guidelines. Aiding an offender under Minn. Stat. \\u00a7 609.495, - subd. \\u2022 3, is an unranked offense under the sentencing guidelines. The sentencing court ranked her conviction under subdivision 3 at severity level VII and as a result, Kenard was sentenced to an executed term of 68 months in prison. Kenard appealed on various grounds, including sentencing, and the court of appeals affirmed. We granted Kenard's petition for further review, but\\\" limited our review to the sentencing issues raised in the petition. Those issues are whether the sentencing court abused its' discretion when it assigned offense severity level VII to Kenard's unrariked offense and whether it was an abuse of discretion for the sentencing court, having assigned the offense severity level VII, to have sentenced Ke-nard to an executed term of 68 months in prison. Based on our conclusion that the sentencing court abused its discretion in assigning offense severity level VII to Ke-nard's offense under Minn.Stat. \\u00a7 609.495, subd. 3, we reverse the court of appeals and remand to the sentencing court for resenteneing.\\nOn December 31, 1997, Kenard spent the early afternoon in her apartment with her four-year old son, Robert, and another child taking down Christmas decorations. Kenard's fianc\\u00e9, Emmett Thomas, lived in the apartment and was also present. At about 1:00 p.m., Ronald Hare came to the apartment to visit Thomas. . Shortly after Hare arrived, Thomas and Hare began arguing and using profanity. As a result, Kenard took the children to a nearby grocery store to get them away from the argument.\\nWhen Kenard and the children returned approximately 45 minutes later, there was blood on the apartment's walls and floor. When Robert asked about the blood, Ke-nard told him it was paint and rushed the children to a back bedroom, telling them to stay there and watch cartoons. Kenard then returned to the living room and found Thomas pointing to the closet, which led her to assume that Hare was in the closet. She did not, however, check the closet. When Kenard asked Thomas what happened, he responded that he was just trying to defend himself. When Kenard said to Thomas, \\\"Well, you didn't have to kill him,\\\" Thomas responded, \\\"I didn't kill him, I just knocked him out.\\\"\\nThomas asked Kenard to help him clean up the blood, 'which she did out of concern for the children. The cleaning process took about ten minutes. After cleaning up the blood, Kenard opened the closet door, checked Hare's wrist for a pulse, and finding none, told Thomas that Hare was dead and that Thomas had to remove Hare's body from the apartment because she did not want her son to see it. According to Kenard, Thomas moved Hare's body \\\"about 45 minutes or an hour after we had cleaned up the foyer.\\\" When he moved the body, Thomas asked Kenard to hold the closet and apartment doors open and she complied. Thomas evidently moved Hare's body to a storage room in the building because later that night Thomas again asked Kenard to assist him in moving the body. She complied with his request by holding open both the door to a storage room and a door to the outside as Thomas removed Hare's body from the building.\\nHare's body was found across the street from the apartment building by passersby at about 4:00 a.m. on January 1 and the police were called. The investigation led the police to Kenard's apartment. That afternoon, the police executed a search warrant at the apartment. Evidence obtained during the search led the police to believe that Hare had been killed in the apartment. When the police first questioned Kenard, she was uncooperative and denied having any knowledge of Hare's death. Eventually, Kenard informed the police that Thomas had killed Hare and that she helped Thomas clean up Hare's blood and held doors open so that Thomas could take Hare's body from the apartment and later from the building.\\nThe Minnesota Sentencing Guidelines set out the procedure for sentencing offenders. The presumptive sentence for an offender is determined by locating the appropriate cell on the Sentencing Guidelines Grid. See Minnesota Sentencing Guidelines II. The first step in determining the appropriate cell is to determine the offense severity level for the offense of conviction. See id. at II.A. The severity level of the offense of conviction is located on the vertical axis of the grid. See id. at IV. The guidelines assign a severity level from I to X to most offenses, but certain offenses, such as those in violation of section 609.495, subd. 3, are left unranked. See Minnesota Sentencing Guidelines II.A. \\\"When persons are convicted of offenses excluded from the Offense Severity Reference Table, judges should exercise their discretion by assigning an offense a severity level which they believe to be appropriate.\\\" Id. at II.A.05 comment. Beyond indicating that the sentencing court is to exercise its discretion in assigning an offense severity level to unranked offenses, the sentencing guidelines do not give any direct guidance as to what considerations should go into the exercise of that discretion.\\nThat lack of guidance notwithstanding, we conclude that the sentencing court, on the facts presented here, abused its discretion when it assigned an offense severity level VII to Kenard's offense. We reach that conclusion for two reasons. First, because the sentencing court did not indicate on the record what factors, if any, it considered when it assigned offense severity level VII to Kenard's offense, it is almost impossible for a reviewing court to evaluate the sentencing court's exercise of discretion. See State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). The second reason is that it appears from the record that the sentencing court, rather than first determining the offense severity level as required by the sentencing guidelines, took the sentence recommended in Kenard's presentence investigation report and worked backward to find an offense severity level that would support a sentence approximating the recommendation.\\nBecause the sentencing guidelines do not give any direct guidance as to what should be considered when assigning an offense severity level to unranked offenses, we feel compelled to give some direction. The sentencing guidelines do provide a framework sentencing courts can use when determining the offense severity level of unranked offenses. The framework is found in the purposes of the sentencing guidelines, which are to:\\nestablish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the, severity of the offense of conviction and the extent of the offender's criminal history. Equity in sentencing requires (a) that convicted felons similar with respect to relevant sentencing criteria ought to receive similar sanctions, and (b) that convicted felons substantially different from a typical case with respect to relevant criteria ought to receive different sanctions.\\nMinnesota Sentencing Guidelines I. Relying on these purposes, we recommend that when assigning a severity level to un-ranked offenses, the sentencing court take into consideration the following: the gravity of the specific conduct underlying the unranked offense; the severity level assigned to any ranked offense whose elements are similar to those, of the unranked offense; the conduct of and severity level assigned to other offenders for the same unranked offense; and the severity level assigned to other offenders who engaged in similar conduct. No single factor is controlling nor is the list of factors meant to be exhaustive. Thus, while the sentencing court has discretion in sentencing for unranked offenses, information from the Sentencing Guidelines Commission on other offenders sentenced on the same or similar offenses can help guide the exercise of that discretion.\\nKenard's conduct, while not as grave as that of Thomas, was nonetheless extremely serious. She was convicted of aiding the perpetrator to conceal the most serious of crimes, murder in-the first degree. Her conduct, which included cleaning the crime scene, holding open doors so Thomas could dispose of Hare's body, and initially providing false information to -the police, interfered with the investigation of Hare's death and had the potential to make Thomas' prosecution more difficult.\\nThe ranked offense most similar to Ke-nard's offense is aiding an offender under Minn.Stat. \\u00a7 609.495, subd. 1(a), which provides that:\\nWhoever harbors, conceals, or aids another known by the actor to have committed a felony under the laws of this or another state or of the United States with intent that such offender shall avoid or escape from arrest, trial, conviction, or punishment, may be sen tenced to imprisonment for not more than three years or to payment of a fine of not more than $5,000, or both.\\nThis offense is ranked at severity level I under the guidelines. Minnesota Sentencing Guidelines V (Offense Severity Reference Table). The primary differences between subdivision 1 and subdivision 3 of Minn.Stat. \\u00a7 609.495 are that subdivision 3\\u215b application is limited to certain enumerated offenses while subdivision 1 is not so limited; and that subdivision 3 provides that those convicted thereunder may be sentenced to up to one-half of the statutory maximum of the aided offense. Obviously, the legislature considers convictions under subdivision 3 more serious than those under subdivision 1.\\nFor purposes of comparing the offense severity level assigned to other offenders found to have engaged in conduct similar to Kenard's to the severity level assigned to Renard, the parties have identified only one case. As it turns out, the offense in that case is aiding an offender in violation of Minn.Stat. \\u00a7 609.495, subd. 1. That case involves Arneatrice Shaw (Henn. Cty. File No. 98-123289), whose conduct was virtually identical to that of Renard. Like Re-nard, Shaw came home to find that a loved one, in Shaw's case her son, had killed someone in her home. Also like Renard, Shaw proceeded to help remove the victim's body from the home and then cleaned the house and washed blood from clothes in order to help her son avoid arrest. Shaw was charged under section 609.495, subd. 3, but was allowed to plead guilty to violating section 609.495, subd. 1. Thus, Shaw's virtually identical conduct was ranked at offense severity level I while Renard's was ranked at VII. Given the virtually identical conduct, equity and proportionality suggest that the severity levels assigned to Renard and Shaw's offenses should not be so far apart. Such variations in severity level for the same conduct do not comport with the sentencing guidelines' goals of equity and proportionality. The legislature's intent of treating convictions under subdivision 3 more seriously than convictions under subdivision 1 may dictate a higher severity level for Renard than Shaw, but there is nothing to suggest that Renard's offense warrants a severity level six steps higher than Shaw.\\nFor purposes of comparing the offense severity level assigned to Renard's offense with that of others convicted of aiding an offender under section 609.495, subd. 3, our attention is drawn to cases involving Antonio Brayboy (Henn. Cty. File No. 96-071357), Eugene Myers (Benton Cty. File No. K9-96-521), Sathith Mevangsaksith (Henn. Cty. File No. 97-015813), Frank Soman (Ramsey Cty. File No. R3-96-4229), and Nickie Frank (Henn. Cty. File No. 98-095728) and Stacy Roerner (Henn. Cty. File No. 98-095714). Brayboy was indicted for aiding and abetting first-degree murder but was allowed to plead guilty to one count of aiding an offender under section 609.495, subd. 3, for his involvement in the brutal slaying of three people. Although Brayboy denied participating in the murders, he admitted to being present at the scene when they took place. See State v. Patterson, 587 N.W.2d 45, 47-48 (Minn.1998). He further admitted to helping the perpetrator flee the death scene. Brayboy's offense was assigned severity level VIII. Brayboy's presence at the time of the offense distinguishes his case from Renard's.\\nMyers pleaded guilty to aiding and abetting attempted second-degree murder after he drove a stolen van while two other men severely beat the van's owner and then helped the two men drag the owner from the van into the woods, leaving him to die. Myers offense, like Brayboy's, was also assigned severity level VIII. Mevang-saksith's offense of conviction arose out of his involvement in driving a car for friends who robbed two people at gunpoint. Me-vangsaksith's offense was assigned severity level VII. Soman's offense of conviction arose as a result of Soman's presence during a robbery and grabbing some marijuana as he and another fled the scene. So-man's offense was assigned severity level VII. While the underlying offense in Ke-nard's case is far more serious than the underlying offenses in the cases of Myers, Mevangsaksith, and Soman, their conduct, which included some active participation in the underlying offenses, makes their offenses more serious. Thus, Kenard's offense should be ranked lower.\\nFrank and Koerner's offenses were assigned severity level VIII for their involvement in attempting to conceal the brutal rape and murder of a 13-year old Hmong girl. They became involved with the murder when the murderer, a classmate of theirs, called Frank and asked to use her car so that he could dispose of the victim's body. At sentencing, the court noted that Frank not only provided the car, but that she and Koerner voluntarily went along and helped the murderer dispose of the victim's body. While Frank and Koerner's offense is similar to Kenard's in terms of gravity, we note that it is distinguishable in that Frank and Koerner readily assisted the murderer when asked. In contrast, the murder in this case was thrust upon Kenard in her own home. Thus, we view Kenard's offense as less serious than theirs.\\nIn each of these cases, Brayboy, Myers, Mevangsaksith, Soman, and Frank and Koerner, the offender was either present at the time of the underlying offense, participated to some degree in the underlying offense, or readily participated in covering up the underlying offense. In contrast, Kenard was neither present at the time of, nor participated in, Hare's murder. Moreover, she did not choose to become involved in concealing Hare's murder, rather she walked into her own home with two young children to find blood on the walls and floor and took steps to hide the murder from her 4-year old son. With these cases in mind, we remand to the' sentencing court for a determination of the severity level of Kenard's offense, consistent with this opinion. We decline to reach the sentencing issue presented by Kenard's appeal. While on this record the sentence imposed on Kenard seems to be on the high side, because of our remand, we need not reach that issue at this time.\\nReversed and remanded.\\n. Minn.Stat. \\u00a7 609.495, subd. 3 provides that:\\nWhoever intentionally aids another person known by the actor to have committed a criminal act, by destroying or concealing evidence of that crime, providing false or misleading information about that crime, receiving the proceeds of that crime, or otherwise obstructing the investigation or prosecution of that crime is an accomplice after the fact and may be sentenced to not more than one-half of the statutory maximum sentence of imprisonment or to payment of a fine of not more than one-half of the maximum fine that could be imposed on the principal offender for the crime of violence.\\n. The sentencing court stated \\\"the sentence is based on really what I think is appropriate, in light of the severity of the crime,\\\" but the judge never mentioned what factors made severity level VII appropriate.\\n. B}' specific conduct, we mean that conduct underlying proof of the elements of the offense. While we have held that such conduct cannot be relied on to justify an upward departure, State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983), we conclude that its use is appropriate for setting the severity level for un-ranked offenses. Once the sentencing court has determined the severity level by considering the conduct underlying proof of the elements of the offense, it is not prohibited, in appropriate cases, from considering whether there are also aggravating or mitigating circumstances that would justify departure.\\n. This and the preceding cases, identified by court file number, are not reported cases but are from the records compiled on unranked offenses by the Sentencing Guidelines Commission for record keeping purposes.\\n. Antonio Brayboy's plea agreement states that he pleaded guilty to one count of accessory to first-degree murder but State v. Patterson, 587 N.W.2d 45, 47 (Minn.1998), reports that Brayboy pleaded guilty to three counts of accessory to first degree murder.\\n. We recognize that another factor at work here is that in some of the cases used for comparison purposes, involving conduct substantially more serious than that of Kenard, the defendants pleaded guilty to lesser offenses. As a result, factors beyond the conduct underlying proof of the elements of the offense were likely considered in setting the offenders' severity level. However, that procedural difference, while one more factor to consider in the analysis, does not make the comparisons any less valid for purposes of insuring that the sentencing guidelines' goals of equity and proportionality are met.\"}"

minn/12015127.json

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+"{\"id\": \"12015127\", \"name\": \"Spencer ROBINSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent\", \"name_abbreviation\": \"Robinson v. State\", \"decision_date\": \"1997-08-07\", \"docket_number\": \"No. C8-96-2044\", \"first_page\": \"491\", \"last_page\": \"496\", \"citations\": \"567 N.W.2d 491\", \"volume\": \"567\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:16:59.868252+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Spencer ROBINSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\", \"head_matter\": \"Spencer ROBINSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\\nNo. C8-96-2044.\\nSupreme Court of Minnesota.\\nAug. 7, 1997.\\nRehearing Denied Sept. 5, 1997.\\nSpencer Robinson, Stillwater, pro se.\\nHubert H. Humphrey, III, St. Paul, Michael Richardson, Asst. Hennepin County Atty., Minneapolis, for respondent.\", \"word_count\": \"2292\", \"char_count\": \"14566\", \"text\": \"OPINION\\nGARDEBRING, Justice.\\nSpencer Robinson was convicted of first-degree murder in the September 16, 1993 shooting death of Karl Boswell in Minneapolis. He appealed his conviction to this court, which affirmed. State v. Robinson, 536 N.W.2d 1 (Minn.1995). Because the facts of the offense are detailed in our opinion on his direct appeal, we do not reiterate them here.\\nRobinson brings this petition for postcon-viction relief, alleging he was denied the effective assistance of counsel by numerous errors on the part of both his trial and his appellate counsel. The postconviction court denied all of Robinson's claims, and we affirm.\\nIn his petition for postconviction relief, Robinson alleged that he was denied the effective assistance of counsel because his trial attorney failed to: (1) investigate; (2) prepare for trial; (3) present a defense, i.e., he did not present any witnesses; (4) object to improper jury instructions; (5) challenge the indictment on the grounds that a grand juror was familiar with the victim; (6) move to suppress police interviews; and (7) challenge a petit juror who was familiar with the investigating officer. Robinson also alleged his trial attorney was ineffective because he failed to communicate two plea offers. Finally, Robinson alleged his appellate attorney was ineffective because on appeal, she failed to raise the issue of whether there should have been a jury instruction on a lesser included offense.\\nThe postconviction court dismissed Robinson's petition without an evidentiary hearing. After closely examining Robinson's claims, the court concluded that Robinson had failed to make any factual allegations, which, if proven, would have entitled him to relief on any of his claims. Specifically, the court concluded that Robinson had alleged neither what investigation and preparation should have been done or what witnesses should have been called, nor what difference any of those actions would have made. As to the improper jury instructions, the court noted that this issue was considered and rejected by this court in Robinson's direct appeal. On the issue of grand jury bias, the court noted that while the grand jury transcript revealed that two grand jurors had a slight familiarity with the victim, both indicated that they were able to remain impartial, and Robinson had not made any factual allegation to refute that testimony. On the issue of the failure to move to suppress, the court observed that Robinson in his petition failed to allege what statements should have been suppressed, and noted that Robinson's trial counsel did in fact move to suppress one statement. Finally, on the plea-offer issue, the court concluded that Robinson had provided insufficient factual allegations to support the claim.\\nOn June 19, 1996, Robinson filed an amended petition for postconviction relief in which he restated, with more specificity, his claim that his trial counsel had failed to communicate two plea offers. The postcon-viction court granted a hearing on this issue only, which was held on September 9, 1996. After hearing the evidence, the court concluded that Robinson's trial counsel had in fact communicated the plea offers and dismissed the petition.\\nIn this appeal, Robinson reasserts all the claims raised in his petition and amended petition, and alleges new facts in support of his claim that his trial counsel failed to investigate. In particular, he claims his attorney failed to: (1) hire an expert or question the medical examiner regarding powder burns on the victim's hands; (2) contact Robinson's co-defendant, who would have corroborated Robinson's version that the shooting occurred during a struggle; (3) elicit testimony from the medical examiner regarding whether the victim's wounds could have resulted from a struggle; and (4) investigate the gun used in the murder in order to determine whether Robinson's fingerprints were on it. Robinson further argues that the posteonviction court's conclusion that his trial counsel did communicate the plea offers was clearly erroneous. Finally, Robinson for the first time specifies that his appellate counsel was ineffective because she failed to raise the issue that a jury instruction on first-degree manslaughter should have been given.\\nThe scope of review of a postcon-viction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (citing Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992)). An evidentia-ry hearing is not required unless facts are alleged which, if proven, would entitle a petitioner to relief. Id. The petitioner's allegations must be more than argumentative assertions without factual support. Id.\\nA convicted defendant when claims ineffective assistance of counsel so egregious that a new trial is required must prove:\\nFirst that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \\\"counsel\\\" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\\nFox v. State, 474 N.W.2d 821, 826 (Minn.1991) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Whether counsel's performance was deficient is measured by an objective standard of reasonableness. Hodgson, 540 N.W.2d at 518. Moreover, there is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.\\nMost of Robinson's claims were properly dismissed because they were known at the time of his direct appeal. Once an appeal has been taken, all issues raised and all issues known but not raised will not be considered upon a subsequent petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). This generally includes claims for ineffective assistance of counsel, unless the claim is such that the reviewing court needs additional facts to explain the attorney's decisions. Black v. State, 560 N.W.2d 83, 85 n. 1 (Minn.1997). Here, Robinson knew that he wished to challenge his trial attorney's effectiveness at the time of his direct appeal, although he did not specify at that time what those claims would have been. Robinson admits that he discussed the issue with his appellate counsel, and he submitted a supplemental pro se brief indicating he wished to \\\"preserve\\\" the issue. See King v. State, 562 N.W.2d 791, 795-96 (Minn.1997) (holding ineffective assistance of counsel claim barred because raised on direct appeal). With the exception of Robinson's claim that his trial counsel failed to communicate two plea offers and his claim of ineffective assistance of appellate counsel, his claims of ineffective assistance of counsel either were or should have been raised at the time of the direct appeal and were accordingly properly dismissed by the postconviction court.\\nHowever, Robinson's claim that his trial counsel failed to communicate two plea offers requires additional factfinding, so it is not barred by his having known of the claim at the time of his direct appeal. See Black, 560 N.W.2d at 85 n. 1. In order to evaluate such a claim, a court needs to hear testimony from the defendant, his or her trial attorney, and any other witnesses who have knowledge of conversations between the client and the attorney. Only after hearing such testimony could a court determine whether in fact the trial attorney communicated the plea offers. This differs from the claims discussed above, which can be evaluated by an appellate court on direct appeal based on the briefs and trial court transcript, and without any additional factfinding. For this reason, an ineffective assistance of counsel claim such as this is properly raised in a petition for posteonviction relief, even though it was known at the time of direct appeal. Robinson's remaining claim for ineffective assistance of appellate counsel was not known at the time of his direct appeal, so it was properly raised in a petition for posteonviction relief. We turn next to these two claims.\\nAfter an evidentiary hearing, the posteonviction court found that Robinson's trial attorney did in fact communicate two plea offers to Robinson. Robinson claims that this finding of fact was erroneous and should be reversed. In general, a trial court's findings of fact will not be disturbed unless clearly erroneous. Minn. R. Civ. P. 52.01. That means that this court will not reverse, unless \\\"upon review of the entire evidence, [the] court is left with the definite and firm conviction that a mistake has been made.\\\" Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn.1987).\\nAt the posteonviction hearing, there was conflicting testimony on the issue of whether Robinson's trial counsel had communicated the plea offers to Robinson. Robinson testified that the attorney had not conveyed any offers to negotiate a plea. His trial counsel testified that he conveyed two separate offers to Robinson, one while he was in jail and one immediately before the trial. The two prosecutors on the case both testified that they had two discussions with Robinson's counsel about possible pleas, and that he had returned to them saying that his client was not interested in the offers they put forth. Given this testimony, the posteonviction court could have reasonably concluded that Robinson's trial counsel did in fact discuss the plea offers with Robinson. We thus conclude that the posteonviction court's finding of fact was not clearly erroneous.\\nAs for Robinson's ineffective assistance of appellate counsel claim, he alleges his counsel was ineffective because she failed to raise the issue of submission of a jury instruction on a lesser-included offense in Robinson's direct appeal. In his petition, Robinson did not detail the alleged failure of appellate counsel, nor how it would have made a difference. For this reason, the post-conviction court concluded that Robinson had alleged insufficient facts to entitle him to relief. In his appellate brief, Robinson makes the new argument that an instruction on first-degree manslaughter should have been given. Because it was not raised below, this claim is not properly before this court. K.T., 327 N.W.2d at 16-17. Moreover, the claim has no merit because Robinson specifically waived the issue at trial. Robinson testified, out of the presence of the jury, that he did not want the lesser-included offense of manslaughter instruction given to the jury. This claim was therefore properly dismissed by the postconviction court.\\nIn summary, we hold that most of Robinson's claims for ineffective assistance of counsel were barred from being raised in a petition for postconviction relief because they were known at the time of his direct appeal. His two claims that were not so barred were properly dismissed by the postconviction court. The postconviction court's finding of fact that Robinson's trial counsel had communicated plea offers was not clearly erroneous, and Robinson's claim for ineffective assistance of appellate counsel was properly dismissed because Robinson failed to allege sufficient facts to entitle him to relief.\\nAffirmed.\\n. The postconviction court did not dismiss these claims on this basis; rather, it examined each claim and determined that Robinson failed to make any factual allegations, which, if proved, would have entitled him to relief. After reviewing the record and Robinson's petition, we conclude that the petition was properly dismissed on this basis as well.\\n. Robinson attempts to avoid this procedural rule by alleging new facts and adding specific claims of a failure to investigate by his trial counsel. It is well settled that a party may not raise issues for the first time on appeal. Matter of Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn. 1982). These claims are therefore not properly before this court. Moreover, while Robinson has made more specific allegations regarding what investigation his attorney should have performed than he provided the postconviction court, he has still failed to allege how such investigation would have changed the outcome of his case. A showing of prejudice is an essential element of an ineffective assistance of counsel claim. See Fox v. State, 474 N.W.2d 821, 826 (Minn.1991).\\nThe only claims Robinson now makes about a failure to investigate that might have any merit are the claims that the victim's hands should have been tested for powder burns, and that the medical examiner should have been asked whether the victim's wounds could have occurred during a struggle. While these pieces of information, had they been presented, would have supported Robinson's contention that the shooting occurred during a struggle, given the weight of the evidence supporting the jury's ver-diet, it is unlikely that their absence affected the jury's verdict. Thus, it cannot be said that the attorney's failure to pursue these leads and introduce this evidence was an error that prejudiced Robinson's trial.\\n. The best procedure for raising such a claim, however, is to file a petition for posteonviction relief before appeal. Roby v. State, 531 N.W.2d 482, 484 n. 1 (Minn.1995).\\n. Even if Robinson had not waived the claim, it was not error to exclude the instruction. Where the jury finds the intent necessary for a higher degree of murder, the failure to instruct jury on the lesser offense of manslaughter is not prejudicial error. Cf. State v. Lee, 282 N.W.2d 896, 899-900 (Minn.1979). Here, the jury found Robinson guilty of, among other things, second-degree murder. Because the jury made this finding, they could not have concluded that Robinson also committed manslaughter. See Minn.Stat. \\u00a7 609.20(2) (1996). Failure to give an instruction on manslaughter in this situation was not an error, and Robinson's appellate attorney could not have been ineffective for not raising the issue on appeal.\"}"

minn/124297.json

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+"{\"id\": \"124297\", \"name\": \"J. K. ELLIOTT and Another v. T. E. McALLISTER\", \"name_abbreviation\": \"Elliott v. McAllister\", \"decision_date\": \"1908-10-16\", \"docket_number\": \"Nos. 15,883\\u2014(138)\", \"first_page\": \"25\", \"last_page\": \"28\", \"citations\": \"106 Minn. 25\", \"volume\": \"106\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:01:15.985294+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. K. ELLIOTT and Another v. T. E. McALLISTER.\", \"head_matter\": \"J. K. ELLIOTT and Another v. T. E. McALLISTER.\\nOctober 16, 1908.\\nNos. 15,883\\u2014(138).\\n^Pleading \\u2014 Answer.\\nIn this, an action to recover for moneys advanced and commissions on purchases and sales of wheat for the defendant by the plaintiffs as grain brokers, it is held that neither by the answer nor by the defendant\\u2019s testimony was the plaintiffs\\u2019 alleged cause of action admitted.\\nAction in the district court for Hennepin county to recover $659.86, amount alleged to have been paid out and for commissions earned by plaintiffs as agents for defendant in the purchase and sale of wheat. The case was tried before Brooks, J., who directed a verdict in favor of defendant. From an order denying plaintiffs\\u2019 motion for a new trial, they appealed.\\nAffirmed.\\nBenton, Molyneaux & Morley, for appellants.\\nMead & Robertson, for respondent.\\nReported in 117 N. W. 921.\", \"word_count\": \"1224\", \"char_count\": \"7159\", \"text\": \"START, C. J.\\nThis action was brought in the district court of the county of Hennepin to recover from the defendant the sum of $659.86 for moneys paid and commissions earned by the plaintiffs in the purchase and sale of wheat for the defendant as his agent. At the close of the evidence the trial court directed the jury to return a verdict for the defendant, which was done, and the plaintiffs appeal from an order denying their motion for a new trial.\\nThe only question raised by the assignment of errors is whether the trial court erred in directing a verdict for the defendant. The plaintiffs in their brief urge, in support of their contention that the instruction was erroneous, that the answer admitted their cause of action as alleged in the complaint, and, further, that the defendant admitted it on the trial in giving his testimony. If either of these claims is justified by the record, it follows that the instruction was erroneous, and that there must be a new trial of the cause; but, if neither claim is sustained by the record, the order appealed from must be affirmed, for it is not claimed by plaintiffs that, independent of the-alleged admissions, the evidence made a case for the jury.\\nThe first question, then, is: Does the answer admit the plaintiffs'' cause of action ? After alleging that the plaintiffs were grain brokers,, doing business as such, and the' rules and methods of business of the Minneapolis Chamber of Commerce, the complaint alleged that plaintiffs, at the request of the defendant, bought and sold, as such brokers,, for him, wheat at various times from May 26 to June 13, 1900, inclusive, as shown by a detailed statement set out in the complaint,, giving dates of purchase and sale, number of bushels and prices, and' showing a net loss of $593.75. The complaint also alleged that the plaintiffs, at the request of the defendant, advanced and paid for him on such sales the sum of $593.75, the amount of such net losses, and, further, that the commissions on such transactions amounted to. $62.50.\\nThe answer denied each and every allegation of the complaint not expressly admitted in the answer. It then affirmatively alleged that in the months of May and June, 1900, the defendant employed the plaintiffs to make purchases and sales of wheat for future delivery, with the-mutual understanding and agreement that no wheat was to be delivered or received by either party on such transactions; that such purchases and sales and such transactions were to be mere wagers upon the-future rise and fall of the market price of wheat at Minneapolis, the account of which is particularly set forth in the itemized statement in the complaint, the plaintiffs to receive as their compensation one-eighth of one per cent, on the amount of such purchases and sales; that all such purchases and sales were made pursuant to such mutual understanding; that all of such transactions were to be settled at a future time by the' payment of differences, to wit, the difference between the contract of purchase or sale price and the market price on the day of the settlement, and that neither party to the transaction should be required to deliver or receive any wheat; that' all of such transactions involved and were simply gains or losses depending upon the future rise or fall of the market price, and that none of such wheat, or any wheat, was or was to be demanded,- tendered, delivered,, or received in any of said purchases or sales; and, further, that each and all of them were not veritable purchases or sales of wheat, but were colorable, and were wagers and gambling transactions, whereby plaintiffs, in form, undertook to buy and sell on the Minneapolis Board of Trade, ostensibly for future deliveries, wheat, but without any intention or expectation on the part of the plaintiffs or defendant, or any one else, that the same would be actually delivered. The reply put in issue these allegations of the answer.\\nCounsel for plaintiffs urge that the answer must be construed as admitting that wheat was actually purchased and sold by them for the defendant, and money advanced by them for him, as alleged in the complaint; hence the only issue tendered by the answer was whether the sales were gambling transactions. It is clear that the allegations of the complaint, to the effect that the plaintiffs bought and sold wheat for the defendant and advanced money for his use, at his request, were put in issue by the denials in the answer. The affirmative allegations of the answer, which are relied upon as an admission of the plaintiffs' cause of action, must be construed in connection with such denials. So construing them, it is obvious that they do not admit that the plaintiffs ever made any actual and legal purchases and sales \\u2022of wheat for the defendant, but only colorable and gambling sales \\u2022or transactions, \\\"the account of which is particularly set forth in the complaint.\\\"\\nThe claim of the plaintiffs that the defendant admitted the plaintiffs' cause of action on the trial is based solely upon testimony given by the defendant upon being called by plaintiffs for cross-examination. It was this: \\\"Q. You have admitted here in your answer, Mr. McAllister, under oath, that this statement of account contained in the complaint is correct, and that these sales were made upon your order. Is that true? A. That is true. Q. Well, you ordered these sales made by telegram? A. I did, I believe; all that I had made. Q. All these purchases you ordered by telegram, isn't that so? A. I think it was all by wire.\\\" This testimony must be \\u2022construed with reference to the answer, which did not admit that any actual sales of wheat were ever made, but only colorable ones. It is quite apparent, from the testimony quoted, that it was such sales that defendant had in mind when he answered the question; for it referred to the admission in the answer. When, however, the \\u2022entire testimony of the witness with reference to the purchase and sale of wheat for him by the plaintiffs is considered, there is no substantial basis for the claim that the defendant admitted on the trial the plaintiffs' cause of action.\\nWe therefore hold that neither by his answer, nor by his testimony, did the defendant admit the plaintiffs' alleged cause of action.\\nOrder affirmed.\"}"

minn/12564263.json

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+"{\"id\": \"12564263\", \"name\": \"Adam BANDEMER, Respondent, v. FORD MOTOR COMPANY, Appellant, Eric Hanson, et al., Defendants.\", \"name_abbreviation\": \"Bandemer v. Ford Motor Co.\", \"decision_date\": \"2019-07-31\", \"docket_number\": \"A17-1182\", \"first_page\": \"744\", \"last_page\": \"762\", \"citations\": \"931 N.W.2d 744\", \"volume\": \"931\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Adam BANDEMER, Respondent,\\nv.\\nFORD MOTOR COMPANY, Appellant,\", \"head_matter\": \"Adam BANDEMER, Respondent,\\nv.\\nFORD MOTOR COMPANY, Appellant,\\nEric Hanson, et al., Defendants.\\nA17-1182\\nSupreme Court of Minnesota.\\nFiled: July 31, 2019\", \"word_count\": \"8695\", \"char_count\": \"56333\", \"text\": \"MCKEIG, Justice.\\nAppellant Ford Motor Company (Ford) appeals from a court of appeals decision affirming a district court's exercise of specific personal jurisdiction over Ford in a products liability case. Central to the litigation is a Ford vehicle that was involved in a car crash in which the passenger was seriously injured and an airbag in the vehicle allegedly failed to deploy. Ford argues that its contacts with Minnesota were not sufficiently connected to the current litigation because the car at issue was designed, manufactured, and sold outside of Minnesota. Because the claims here arise out of or relate to Ford's contacts with Minnesota, we affirm the court of appeals.\\nFACTS\\nIn January of 2015, Respondent Adam Bandemer, a Minnesota resident, was a passenger in a 1994 Ford Crown Victoria driven on a Minnesota road by defendant Eric Hanson, a Minnesota resident. Hanson rear-ended a Minnesota county snow plow, and the car ended up in a ditch. Minnesota county law enforcement responded to the crash, and Bandemer alleges that he suffered a severe brain injury as a result of the passenger-side airbag not deploying. He was treated for his injuries by Minnesota doctors in Minnesota. Bandemer alleges that the airbag failed to deploy because of a defect, and that the accident was caused by Hanson's negligence. He filed a complaint in district court alleging products liability, negligence, and breach of warranty claims against Ford and negligence claims against Hanson and his father, who owned the car.\\nFord moved to dismiss Bandemer's claims for lack of personal jurisdiction. See Minn. R. Civ. P. 12.02(b). Ford does not dispute the quantity and quality of its contacts with Minnesota, nor does it dispute the reasonableness of personal jurisdiction under the circumstances. But it argues that, because the Ford car involved in the accident was not designed, manufactured, or originally sold in Minnesota, Ford cannot be subject to personal jurisdiction in Minnesota on this claim.\\nFord's contacts include sales of more than 2,000 1994 Crown Victoria cars-and, more recently, about 200,000 vehicles of all kinds in 2013, 2014, and 2015-to dealerships in Minnesota. Ford's advertising contacts include direct mail advertisements to Minnesotans and national advertising campaigns that reach the Minnesota market. Ford's marketing contacts include a 2016 \\\"Ford Experience Tour\\\" in Minnesota, a 1966 Ford Mustang built as a model car for the Minnesota Vikings, a \\\"Ford Driving Skills for Life Free National Teen Driver Training Camp\\\" in Minnesota, and sponsorship of multiple athletic events in Minnesota. Ford also collects data from its dealerships in Minnesota for use in redesigns and repairs. Finally, Ford has employees, certified mechanics, franchises, and real property, as well as an agent for accepting service, in Minnesota.\\nThe district court held that the exercise of jurisdiction over Ford was proper, and Ford appealed. The court of appeals, applying our decision in Rilley v. MoneyMutual, LLC , 884 N.W.2d 321 (Minn. 2016), cert. denied , - U.S. -, 137 S. Ct. 1331, 197 L.Ed.2d 518 (2017), held that the district court did not err in denying Ford's motion to dismiss for lack of personal jurisdiction because Ford's marketing contacts with Minnesota \\\"established a 'substantial connection between the defendant, the forum, and the litigation, such that [it] purposefully availed [itself] of the forum' \\\" and those contacts \\\"sufficiently relate[ ] to the cause of action .\\\"\\nBandemer v. Ford Motor Co. , 913 N.W.2d 710, 715 (Minn. App. 2018) (quoting Rilley , 884 N.W.2d at 332 ). The court of appeals rejected Ford's arguments that the Supreme Court's decisions in Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014), and Bristol-Myers Squibb Co. v. Superior Court of California , - U.S. -, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017), require a more direct connection between and among the defendant, the forum, and the litigation than the standard articulated by this court in Rilley . 913 N.W.2d at 715-16. This appeal followed.\\nANALYSIS\\n\\\"Whether personal jurisdiction exists is a question of law, which we review de novo.\\\" Rilley , 884 N.W.2d at 326 (citation omitted) (internal quotation marks omitted). After a defendant challenges a court's exercise of personal jurisdiction, the plaintiff must make a prima facie showing that personal jurisdiction is proper. Juelich v. Yamazaki Mazak Optonics Corp. , 682 N.W.2d 565, 569-70 (Minn. 2004). When reviewing a motion to dismiss for lack of personal jurisdiction, we accept all of the factual allegations in the complaint and supporting affidavits as true. Rilley , 884 N.W.2d at 326. In a close case, we resolve any doubt in favor of retaining jurisdiction. Hardrives, Inc. v. City of LaCrosse , 307 Minn. 290, 240 N.W.2d 814, 818 (1976).\\nMinnesota's long-arm statute prevents personal jurisdiction over a nonresident defendant if it would \\\"violate fairness and substantial justice.\\\" Minn. Stat. \\u00a7 543.19, subd. 1(4)(ii) (2018). We may \\\"simply apply the federal case law\\\" because Minnesota's long-arm statute \\\"extend[s] the personal jurisdiction of Minnesota courts as far as the Due Process Clause of the federal constitution allows.\\\" Valspar Corp. v. Lukken Color Corp. , 495 N.W.2d 408, 410-11 (Minn. 1992). The Due Process Clause of the Fourteenth Amendment limits the ability of a state to exercise its coercive power by asserting jurisdiction over non-resident defendants. Bristol-Myers Squibb Co. , - U.S. -, 137 S. Ct. at 1779. A state may not exercise personal jurisdiction unless the defendant has \\\"minimum contacts\\\" with the state and maintaining the lawsuit \\\"does not offend traditional notions of fair play and substantial justice.\\\" Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (citation omitted) (internal quotation marks omitted).\\nWe analyze five factors to determine whether the exercise of personal jurisdiction is consistent with federal due process: \\\" '(1) the quantity of contacts with the forum state; (2) the nature and quality of those contacts; (3) the connection of the cause of action with these contacts; (4) the interest of the state providing a forum; and (5) the convenience of the parties.' \\\" Rilley , 884 N.W.2d at 328 (quoting Juelich , 682 N.W.2d at 570 ). This five-factor test is a means for evaluating the same key principles of personal jurisdiction established by the Supreme Court-reasonableness in light of traditional notions of fair play and substantial justice. See K-V Pharm. Co. v. J. Uriach & CIA, S.A. , 648 F.3d 588, 592 (8th Cir. 2011) ; Dent-Air, Inc. v. Beech Mountain Air Serv., Inc. , 332 N.W.2d 904, 907 (Minn. 1983). The first three factors determine whether Ford has sufficient \\\"minimum contacts\\\" with Minnesota, and the last two factors determine whether jurisdiction is otherwise \\\"reasonable\\\" under concepts of \\\"fair play and substantial justice.\\\" Juelich , 682 N.W.2d at 570.\\nI.\\nWe will first address factors one through three, which determine whether minimum contacts are present. A defendant has sufficient \\\"minimum contacts\\\" to support personal jurisdiction if the defendant \\\"purposefully avails itself\\\" of the privileges, benefits, and protections of the forum state, such that the defendant \\\"should reasonably anticipate being haled into court there.\\\" Burger King Corp. v. Rudzewicz , 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ). \\\"In determining whether a defendant has sufficient 'minimum contacts,' we consider the contacts alleged by the plaintiff in the aggregate and not individually, by looking at the totality of the circumstances.\\\" Rilley , 884 N.W.2d at 337. The forum State \\\" 'does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State' and those products subsequently injure forum consumers.\\\" Burger King Corp. , 471 U.S. at 473, 105 S.Ct. 2174 (quoting World-Wide Volkswagen Corp. , 444 U.S. at 297-98, 100 S.Ct. 559 ).\\nThe \\\"minimum contacts\\\" inquiry necessary to support specific personal jurisdiction over the defendant focuses on \\\"the relationship among the defendant, the forum, and the litigation.\\\" Walden , 571 U.S. at 284, 134 S.Ct. 1115 (citation omitted) (internal quotation marks omitted). The \\\"defendant's suit-related conduct must create a substantial connection with the forum State.\\\" Id. Physical presence by the defendant in the forum state is not required for specific personal jurisdiction-rather, sufficient minimum contacts may exist when an out-of-state defendant \\\"purposefully direct[s]\\\" activities at the forum state, and the litigation \\\"arise[s] out of or relate[s]\\\" to those activities. Burger King Corp. , 471 U.S. at 472, 105 S.Ct. 2174 (citation omitted) (internal quotation marks omitted). This minimum-contacts inquiry must \\\"look[ ] to the defendant's contacts with the forum State itself\\\" and not the defendant's \\\"random, fortuitous, or attenuated\\\" contacts with \\\"persons affiliated with the State\\\" or \\\"persons who reside there.\\\" Walden , 571 U.S. at 285-86, 134 S.Ct. 1115. Substantial contacts with the forum do not compensate for a lack of a connection \\\"between the forum and the specific claims at issue.\\\" Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1781.\\nA.\\nAlthough Ford does not contest the quality or quantity of its contacts with Minnesota, a description of those contacts is necessary for us to determine \\\"the relationship among the defendant, the forum, and the litigation.\\\" Walden , 571 U.S. at 284, 134 S.Ct. 1115 (citation omitted) (internal quotation marks omitted). \\\"[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State .\\\" Hanson , 357 U.S. at 253, 78 S.Ct. 1228. The court of appeals held that Ford's regional advertising and marketing activities in Minnesota were contacts that were not \\\"random, fortuitous, or attenuated\\\" and through those contacts, Ford \\\"purposefully availed [itself] of the forum .\\\" Bandemer , 913 N.W.2d at 715 (citation omitted) (internal quotation marks omitted). We agree.\\nFord's data collection, marketing, and advertising in Minnesota demonstrate that it delivered its product into the stream of commerce with the intention that Minnesotans purchase such vehicles. Ford collected data on how its vehicles perform through Ford dealerships in Minnesota and used that data to inform improvements to its designs and to train mechanics. Ford has sold more than 2,000 1994 Crown Victoria vehicles in Minnesota. It sold about 200,000 vehicles of all types in Minnesota during a three-year period. It conducted direct-mail advertising in Minnesota and directed marketing at the state. This suit's connection with Minnesota is beyond \\\"the mere 'unilateral activity of those who claim some relationship with a nonresident defendant,' \\\" World-Wide Volkswagen Corp. , 444 U.S. at 298, 100 S.Ct. 559 (quoting Hanson , 357 U.S. at 253, 78 S.Ct. 1228 ); rather, the connection is based on Ford's own actions in targeting Minnesota for sales of passenger vehicles, including the type of vehicle at issue in this case.\\nTherefore, the court of appeals did not err in holding that the quality and quantity of Ford's contacts with Minnesota were sufficient to support personal jurisdiction.\\nB.\\nThe first two factors establish that Ford has purposely availed itself of the privileges, benefits, and protections of the state of Minnesota. We turn to the third factor in our personal jurisdiction inquiry: the connection of the cause of action to Ford's contacts with the state. A corporation's \\\"single or isolated items of activity in a state . are not enough to subject it to suit on causes of action unconnected with the activities there.\\\" Int'l Shoe Co. , 326 U.S. at 317, 66 S.Ct. 154 (emphasis added) (citation omitted).\\nThe court of appeals relied in part on our decision in Rilley to determine that there was an adequate connection between Ford's contacts with Minnesota and the cause of action, so as to support personal jurisdiction over Ford. Bandemer , 913 N.W.2d at 714-15. In Rilley , we noted disagreement among courts about how to apply the connectedness factor, distinguishing between a test that looks to whether the plaintiff's claim was \\\"strictly caused by or arose out of the defendant's contacts\\\" on the one hand, and a test that looks to whether \\\"the contacts are substantially connected or related to the litigation\\\" on the other hand. 884 N.W.2d at 336 We observed that although there was no evidence that certain ads \\\"actually caused any of the claims,\\\" nevertheless the ads were \\\"sufficiently related to the claims of respondents to survive a motion to dismiss,\\\" id. at 337, because they were the \\\"means by which\\\" the defendant, MoneyMutual, solicited Minnesota residents to apply for an allegedly unlawful loan. Id. at 336. We concluded that those ads were \\\"a relevant contact with the Minnesota forum for the purpose of the minimum contacts analysis.\\\" Id. at 337.\\nFord urges us to change course and instead adopt a \\\"causal\\\" standard for this prong, under which \\\"the defendant's contacts with Minnesota [must] have caused the plaintiff's claims\\\" for personal jurisdiction over the defendant to be proper. It argues that Supreme Court jurisprudence consistently applies a \\\"giving rise to\\\" standard, consistent with a requirement of causation, and therefore, the \\\"relating to\\\" standard that we applied in Rilley is incorrect. It further argues that a causal standard is clearer and easier to apply. Bandemer disputes Ford's characterization of Supreme Court precedent and argues that eliminating the \\\"relating to\\\" possibility would be a \\\"radical\\\" shift in specific personal jurisdiction law. We agree with Bandemer.\\nFirst, Ford argues that our \\\"related to\\\" conclusion in Rilley is dicta. It argues that we held that the email contacts that MoneyMutual made with Minnesota residents were sufficient by themselves to satisfy the minimum contacts question. See Rilley , 884 N.W.2d at 337. If this assertion is true, Ford reasons, then the ad analysis was not necessary to the holding and is therefore dicta that may be reconsidered without upsetting precedent. Even if our articulation of a \\\"relating to\\\" standard in Rilley is dicta, it is a correct application of Supreme Court precedent.\\nThe Supreme Court most recently addressed the minimum contacts test in its Bristol-Myers Squibb decision, which concerned whether California could exercise personal jurisdiction over a pharmaceutical company in a suit for injuries from medications sold by the defendant. - U.S. -, 137 S. Ct. at 1777. The Supreme Court held that California did not have personal jurisdiction over the company regarding claims by out-of-state (that is, out-of-California) plaintiffs because no connection existed between those out-of-state plaintiffs' claims and the defendant's contacts with California. Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1781-82. The Court determined that sales to California residents of the drug at issue and research the defendant conducted in California on an unrelated drug were not sufficiently connected to the out-of-state plaintiffs' claims because \\\"[t]he relevant plaintiffs are not California residents and do not claim to have suffered harm in that State\\\" and \\\"all the conduct giving rise to the nonresidents' claims occurred elsewhere.\\\" Id. at -, 137 S. Ct. at 1781-82.\\nFord argues that Bristol-Myers Squibb shows that the Supreme Court applies a \\\"giving rise to\\\" standard in place of the \\\"arising out of or related to\\\" standard. Ford's reading of Bristol-Myers Squibb is unpersuasive for two reasons. First, the Court in Bristol-Myers Squibb stated that \\\"[o]ur settled principles regarding specific jurisdiction control this case,\\\" - U.S. -, 137 S. Ct. at 1781, which signals that the Court did not intend to depart from the \\\"arising out of or relating to\\\" standard it had previously applied in many cases. See, e.g. , Daimler AG v. Bauman , 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) ; Burger King Corp. , 471 U.S. at 472-73, 105 S.Ct. 2174 ; Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Indeed, the Court repeated the \\\"arising out of or related to\\\" standard in its opinion, which is hardly a repudiation of that standard. Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1780. Second, unlike here, the Court determined there were no connections between the alleged injury to the out-of-state plaintiffs and the forum. Id. at -, 137 S. Ct. at 1781. It is not likely that the Court applied a new, narrower standard in a case where the plaintiffs could not even meet the established, broader standard.\\nFord's next argument, that before Bristol-Myers Squibb the Court consistently applied a causal standard, is also unpersuasive. In the seminal case of International Shoe , for example, the Court described the connection standard. 326 U.S. at 319, 66 S.Ct. 154. It stated that \\\"to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state.\\\" Id. Those privileges come with obligations as well, and \\\"so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.\\\" Id. (emphasis added). The Court then held that the taxation obligation that the State of Washington sought to enforce was sufficiently connected to International Shoe's presence in the state for personal jurisdiction to exist. Id. at 320, 66 S.Ct. 154.\\nMore recently, in World-Wide Volkswagen , as in the current case, the plaintiffs alleged that a defect in an automobile led to severe injuries following an accident. 444 U.S. at 288, 100 S.Ct. 559. The car was sold in New York, and the accident happened in Oklahoma. Id. The Court rejected the proposition that the vehicle's mobility made it foreseeable that it might travel to Oklahoma, sufficing to establish personal jurisdiction in that state over the vehicle's distributor and retail dealer. Id. at 295, 100 S.Ct. 559. But before announcing its rejection of that proposition, the Court emphatically described the defendants' complete lack of contacts with Oklahoma:\\nPetitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. They solicit no business there either through salespersons or through advertising reasonably calculated to reach the State. Nor does the record show that they regularly sell cars at wholesale or retail to Oklahoma customers or residents or that they indirectly, through others, serve or seek to serve the Oklahoma market.\\nId. Were we to adopt Ford's position here, we would be reading out of the World-Wide Volkswagen decision everything the majority wrote about the defendant's lack of contacts with Oklahoma. If the particular vehicle was not designed, manufactured, or sold in Oklahoma, on Ford's theory, then it would not have mattered if the defendant sold millions of cars in Oklahoma. We decline to adopt a rule that would render irrelevant so much of the Court's reasoning.\\nThe Court in Bristol-Myers Squibb stated it was not departing from settled principles of specific personal jurisdiction. We believe it. Therefore, we decline to adopt Ford's causal standard.\\nC.\\nFord also argues that its contacts with Minnesota do not meet the \\\"relating to\\\" standard. It argues that \\\"[n]o part of Ford's allegedly tortious conduct-designing, manufacturing, warrantying, or warning about the 1994 Crown Victoria-occurred in Minnesota.\\\" Those contacts are only those that cause the claim, though. As we explained above, the requirements of due process are met so long as Ford's contacts relate to the claim. Rilley , 884 N.W.2d at 337.\\nThis is not a case where a 1994 Ford Grand Victoria fortuitously ended up in Minnesota. Ford has sold thousands of such Crown Victoria cars and hundreds of thousands of other types of cars to dealerships in Minnesota. Because the Crown Victoria is the very type of car that Bandemer alleges was defective, Ford's sales to the Minnesota dealerships are connected to the claims at issue here. Bandemer's claims are about the design of the Crown Victoria and therefore his claims are about more than one specific car. Ford also collected data on how its cars performed through Ford dealerships in Minnesota and used that data to inform improvements to its designs and to train mechanics. Part of Bandemer's claim is that Ford failed to detect a defect in its vehicle design. Those activities, and the failure to detect, likewise relate to the claims here. Ford directs marketing and advertisements directly to Minnesotans, with the hope that they will purchase and drive more Ford vehicles. A Minnesotan bought a Ford vehicle, and it is alleged that the vehicle did not live up to Ford's safety claims. \\\"In determining whether a defendant has sufficient 'minimum contacts,' we consider the contacts alleged by the plaintiff in the aggregate and not individually, by looking at the totality of the circumstances.\\\" Rilley , 884 N.W.2d at 337.\\nBeyond Ford's sales, marketing, and research contacts with Minnesota, there is an \\\" 'affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.' \\\" Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1781 (quoting Goodyear , 564 U.S. at 919, 131 S.Ct. 2846 ). In Bristol-Myers Squibb , the Court considered the claims of non-forum residents who did not allege that any relevant facts relating to their claim occurred in the forum, and concluded that, absent such allegations, personal jurisdiction was lacking. Id . at -, 137 S. Ct. at 1782. In the current case, by contrast, the car crash and the injury to the plaintiff occurred in Minnesota, the car was registered in Minnesota, the plaintiff and the driving defendant are Minnesota residents, and the plaintiff was treated for the injuries in Minnesota.\\nFor these reasons, this case meets the requirement from Bristol-Myers Squibb that an \\\"activity or an occurrence . take[ ] place in\\\" Minnesota. The dissent disputes the relevance of a plaintiff's contacts with the forum. In fact, our analysis tracks the Court's analysis in Bristol-Myers Squibb. - U.S. -, 137 S. Ct. at 1781. After rejecting the Supreme Court of California's \\\"sliding scale\\\" approach as a \\\"loose and spurious form of general jurisdiction,\\\" the Court described the nonresident plaintiffs' lack of connection with the forum. Id. It specifically mentioned the lack of injury to these plaintiffs in California, and concluded that \\\"a connection between the forum and the specific claims at issue\\\" was \\\"missing.\\\" Id. The Court's discussion of the lack of plaintiffs' contacts with the forum demonstrates that the plaintiff's contacts are relevant to the analysis of the \\\"affiliation between the forum and the underlying controversy .\\\" Id. (citation omitted) (internal quotation marks omitted).\\nBecause there is a substantial connection between the defendant Ford, the forum Minnesota, and the claims brought by Bandemer, Ford's contacts with Minnesota suffice to establish specific personal jurisdiction over the company regarding Bandemer's claims.\\nII.\\nIf sufficient \\\"minimum contacts\\\" are established, we must consider the \\\"reasonableness\\\" of personal jurisdiction according to traditional notions of \\\"fair play and substantial justice,\\\" weighing factors such as the convenience of the parties and the interests of the forum state in adjudicating the dispute. Burger King Corp. , 471 U.S. at 476-77, 105 S.Ct. 2174 (citing World-Wide Volkswagen Corp. , 444 U.S. at 292, 100 S.Ct. 559 ). To establish specific personal jurisdiction, \\\"the facts of each case must [always] be weighed in determining whether personal jurisdiction would comport with fair play and substantial justice.\\\" Id. at 485-86, 105 S.Ct. 2174 (citation omitted) (internal quotation marks omitted). We examine these questions through factors four and five of our test: Minnesota's interest in the litigation, and the convenience of the parties. Rilley , 884 N.W.2d at 338.\\nFord concedes that these factors are established, and therefore support an exercise of jurisdiction. We agree. Minnesota has a strong interest in adjudicating this dispute regarding an accident involving a Minnesota county vehicle that occurred on a Minnesota road, between a Minnesota resident as plaintiff and both Ford-a corporation that does business regularly in Minnesota-and two Minnesota residents as defendants. Minnesota has a vital interest in protecting the safety and rights of its residents, in regulating the safety of its roadways, and in safeguarding Ford's co-defendants' rights. Minnesota's interest is expressed in its state constitution, which provides: \\\"Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.\\\" Minn. Const. art. I, \\u00a7 8. If complete, prompt, and economical justice are the goals, Minnesota is also the most convenient forum, as the site of the accident and treatment for the injury. Plainly, Minnesota has an interest in adjudicating this dispute and is the most convenient place to do it.\\nHere, we hold that Ford's contacts alone are sufficient to support specific personal jurisdiction and the reasonableness factors, which heavily favor jurisdiction, do not detract from the reasonableness of asserting jurisdiction over Ford here. After examining \\\"the relationship among the defendant, the forum, and the litigation,\\\" we hold that Minnesota's exercise of specific personal jurisdiction over Ford in this case does not violate due process. Walden , 571 U.S. at 287, 134 S.Ct. 1115 (citation omitted) (internal quotation marks omitted).\\nCONCLUSION\\nFor the foregoing reasons, we affirm the decision of the court of appeals.\\nAffirmed.\\nDissenting, Anderson, J., Gildea, C.J.\\nDISSENT\\nBandemer also argued below that Ford consented to personal jurisdiction by consenting to receive service of process through an agent in Minnesota. See Minn. Stat. \\u00a7 303.06 (2018) (requiring that a foreign corporation \\\"irrevocably consent[ ] to the service of process upon it\\\"); Minn. Stat. \\u00a7 303.13, subd. 1(1) (2018) (\\\"A foreign corporation shall be subject to service of process . by service on its registered agent .\\\"). Consent-based jurisdiction exists independently of specific personal jurisdiction, and federal courts have held that \\\"[o]ne of the most solidly established ways of giving such consent is to designate an agent for service of process within the State.\\\" Knowlton v. Allied Van Lines, Inc. , 900 F.2d 1196, 1199 (8th Cir. 1990). The court of appeals did not reach this question because it held that the exercise of jurisdiction was valid under the doctrine of specific personal jurisdiction. Because it was not decided by the court of appeals in the first instance, we similarly decline to address the question of consent-based jurisdiction in this case.\\nThe parties agree that Minnesota may not exercise general personal jurisdiction over Ford. Specific personal jurisdiction exists if the litigation \\\"arise[s] out of or relate[s]\\\" to the defendant's contacts with the forum. Burger King Corp. , 471 U.S. at 472, 473 n.15, 105 S.Ct. 2174.\\nThe dissent disputes this characterization of Ford's data collection. Ford describes its data collection as: \\\"Ford's design center collects some performance data from dealers nationally and Ford sometimes considers vehicle performance in the field to inform its overall design decisions.\\\" Ford further admitted \\\"that it receives information regarding vehicle performance across the United States, including in Minnesota, and that information may be used by Ford as it considers future designs.\\\" But, crucially, Ford's use of the word \\\"may\\\" is not a denial that it collects safety-related data in Minnesota, or that its safety-related data is relevant to Bandemer's causes of action. At the motion-to-dismiss stage, we are required to accept Bandemer's allegations as true unless Ford's discovery responses directly contradict Bandemer's claims. See Rilley , 884 N.W.2d at 336.\\nThe dissent treats the thousands of cars that Ford has sold into Minnesota as irrelevant, because \\\"[e]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.\\\" (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 930 n.6, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ). In our view, the dissent relies too heavily on Goodyear , a case in which the Court considered general jurisdiction. In Goodyear , the issue was whether foreign subsidiaries were subject to general personal jurisdiction in North Carolina. 564 U.S. at 919-20, 131 S.Ct. 2846. The quoted footnote was the Court's response to an allegation that the foreign subsidiaries sought to sell their tires in North Carolina, referring back to another section of the opinion in which it rejected \\\"the sprawling view of general jurisdiction urged by respondents . [that] any substantial manufacturer or seller of goods would be amenable to suit, on any claim for relief, wherever its products are distributed.\\\" Id. at 929, 131 S.Ct. 2846 (emphasis added). Regarding specific personal jurisdiction, however, the Court noted that the \\\"[f]low of a manufacturer's products into the forum . may bolster an affiliation germane to specific jurisdiction.\\\" Id. at 927, 131 S.Ct. 2846.\"}"

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+"{\"id\": \"128204\", \"name\": \"ELIZABETH CHANCE v. CHARLES HAWKINSON AND ANOTHER\", \"name_abbreviation\": \"Chance v. Hawkinson\", \"decision_date\": \"1921-05-13\", \"docket_number\": \"No. 22,202\", \"first_page\": \"91\", \"last_page\": \"94\", \"citations\": \"149 Minn. 91\", \"volume\": \"149\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:49:55.467843+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELIZABETH CHANCE v. CHARLES HAWKINSON AND ANOTHER.\", \"head_matter\": \"ELIZABETH CHANCE v. CHARLES HAWKINSON AND ANOTHER.\\nMay 13, 1921.\\nNo. 22,202.\\nAppeal and error \\u2014 what renewable.\\n1. The record does not show a consolidation of two actions as claimed by plaintiff, and the appeal brings for review the judgment in one. i\\nSame.\\n2. In the absence of a settled case this court cannot review the action of the trial court in directing a verdict.\\nExclusion of evidence \\u2014 statute inapplicable.\\n3. There was no error under the facts stated in the opinion in ex- eluding evidence that a third person was in the naval service. The Soldiers\\u2019 and Sailors\\u2019 Civil Relief Act was without application.\\nFederal act does not apply.\\n4. The act of February 13, 1911 (36 St. 901), has no application to procedure in a state court.\\nState statute i\\u2014 adverse claims.\\n5. The plaintiff was deprived of no right given by Laws 1919 (Ex. S'ess.) c. 5.\\nAction of ejectment in the district court for Hennepin county and to recover $12,000 damages. The case was tried before Bardwell, J., who directed a verdict in favor of defendants. Plaintiff\\u2019s motion for judgment notwithstanding the verdict or for a new trial, was denied. From the judgment entered pursuant to the order for judgment, plaintiff appealed.\\nAffirmed.\\nE. K. Chance, for appellant.\\nC. M. Bleecker, for respondents.\\nReported in 182 N. W. 911.\", \"word_count\": \"1061\", \"char_count\": \"6135\", \"text\": \"Diberl, J.\\nElizabeth Chance brought an action to recover possession of real property in Minneapolis against the defendants Charles Hawkinson and wife. This action in the court below is No. 167,080. Harold 3L Chance was afterwards substituted as plaintiff. His name has not been carried into the title. Harold H. Chance later brought an action against the same defendants and others involving the same property. This action in the court below is No. 168,511. The appeal is from a judgment in favor of the- defendants.\\nThe first mentioned action resulted in a verdict directed for the defendants and judgment was entered on November 15, 1920. The appeal is from that judgment and assumes to reach all intermediate orders, findings and judgments in both actions.\\nThe plaintiff claims that the two actions were consolidated and that they are both for review. This is not the record. An examination of the papers returned shows that judgment was entered on June 18, 1919, in No. 168,511. The judgment in No. 167,080, entered November 15, 1920, -purports to be upon a verdict rendered under direction of the court. No mention of the additional parties in the other action is made. Both numbers are indorsed on the judgment and are written at the top. There is no order consolidating the cases. Neither the court nor the parties treated them as consolidated and they were not consolidated. This appeal reaches the judgment in No. 167,080, but not the judgment in No. 168,511.\\nThere is no settled case. Apparently the substantial issue was whether Elizabeth Chance was married to one Oliver K. Chance at the time he made a mortgage upon homestead property, under the foreclosure of which the defendants claim title. She did not join, and if she was then his wife the mortgage was void. Without a settled case bringing to us the evidence before the trial court, we are unable to review the contention of the plaintiff that there was error in directing .a verdict for the defendants. This is necessarily so, has been so held over 'and over, and there is nothing in the plaintiff's contention to discuss.\\nThe court settled a part of the transcript of the testimony as a bill of exceptions. It appears from it that proof was rejected that Horace C. Chance was in the naval service. There is nothing to indicate error in this. The Soldiers' and Sailors' Civil Relief Act of March 8, 1918 (40 St. 440), does not apply. The mortgage had been foreclosed long before the statute and before the war. Horace C. Chance is not a party. It does not appear by 'any competent evidence that Harold K. Chance took title from him. If he did it was before the statute and the war. There is nothing in the record to show the materiality or competency of the proof rejected.\\nWere it not that plaintiff urges as if in earnest that the act of February 13, 1911 (36 St. 901), relating to Federal appeals, has application here, we would not mention it. We dispose of the claim by saying that the statute has no application at all to procedure in a state court. That a Federal question, may be involved makes no difference. There is no room for argument.\\nNeither is there anything in the plaintiff's claim of a deprivation of a right given by Laws 1919 (Ex. Ses's) p. 6, c. 5. The action is ejectment. It is not to determine adverse claims. There are not two plaintiffs. It is not within the terms of the statute. Whatever the proper application of the statute is, it is clearly without application here.\\nWe have referred to all the points that need particular mention and to some which might well enough be passed without discussion. The plaintiff seems to -claim something by virtue of the decision in Chance v. Hawkinson, 140 Minn. 250, 167 N. W. 734. Even if that case were before us, the claim is groundless. The court there held, in accordance with a prior decision, that' the proper registration tax was paid and nothing else. The foreclosure was not held invalid.\\nThe plaintiff has not printed the paper book required by the rules. A mass of original records, including the judgment rolls in No. 167,080 and No. 168,511, 'and other original files in the court below, have been filed with the clerk of this court. Necessarily we have examined them to ascertain the real controversy and the actual questions presented for review. Counsel should not carry the impression that he is losing on a technicality. He had a trial below which resulted in the judgment. Just what occurred he has not chosen to present to this court for review. The trial court treated him with great patience and gave him every opportunity to procure a settled case. He persistently refused and relies wholly upon technical claims of.no substance or merit. Everything reviewable on the record has been examined and the plaintiff has nothing of which to complain.\\nJudgment affirmed.\"}"

minn/142949.json

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+"{\"id\": \"142949\", \"name\": \"FRANK B. SCOTT v. LAKEWOOD CEMETERY ASSOCIATION\", \"name_abbreviation\": \"Scott v. Lakewood Cemetery Ass'n\", \"decision_date\": \"1926-04-30\", \"docket_number\": \"No. 25,272\", \"first_page\": \"223\", \"last_page\": \"231\", \"citations\": \"167 Minn. 223\", \"volume\": \"167\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:44:23.874674+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holt, J., took no part.\", \"parties\": \"FRANK B. SCOTT v. LAKEWOOD CEMETERY ASSOCIATION.\", \"head_matter\": \"FRANK B. SCOTT v. LAKEWOOD CEMETERY ASSOCIATION.\\nApril 30, 1926.\\nNo. 25,272.\\nCobb, Wheelwright, Hole & Benson, for appellant.\\nSam J. Levy and Nathan H. Chase, for respondent.\\nReported in 208 N. W. 811.\", \"word_count\": \"2832\", \"char_count\": \"16458\", \"text\": \"Taylor, C.\\nDefendant was incorporated as a public cemetery association in 1871 and has some 200 acres of land within the city of Minneapolis devoted to cemetery purposes. It sells and conveys burial lots to private persons. Thirty-eight thousand interments have been made in the cemetery and interments are being made at the rate of about 1,500 per year. Defendant has provided a permanent improvement fund of several hundred thousand dollars, the income from which is devoted to the maintenance, care and improvement of the cemetery as a whole but not to the ornamentation or decoration of individual lots or single graves. It laid out and is improving and beautifying the cemetery according to a fixed plan; and to secure conformity to this plan requires that all trees or shrubs planted therein shall be planted by its own employes of such varieties and in such locations as shall be approved by the superintendent.\\nFor many years defendant has maintained and operated extensive greenhouses where lotowners at all times can secure at reasonable prices flowers, trees and shrubs for the purpose of decorating their lots, and keeps in its employ a sufficient number of skilled men to care for all lots and furnishes their services to all lotowners at reasonable prices. The planting of flowers on graves is not permitted, and many lotowners put them in vases or urns placed on their lots for that purpose. Many lotowners also thatch the graves on their lots with evergreen in the winter season.\\nIn the spring of 1924, defendant adopted and put into force, the following rules or regulations:\\n\\\"Florists.\\n\\\"No outside florist or gardener will be allowed to do any work within the cemetery, and florists' wagons will not be allowed to enter the gates except by special permission from the superintendent.\\\"\\n\\\"Thatching Graves.\\n\\\"It is customary with a large number of people to have the graves on their lots thatched with evergreens each fall. This work is done exclusively byi the cemetery association at the following rates: Grave of person under 5 years of age $1.50. Grave of person over 5 years of age $2.00.\\\"\\nIn 1919 plaintiff purchased a lot from defendant and buried his daughter thereon. Early in 1924 plaintiff employed Richard Wess-ling, a florist of the city of Minneapolis, to take care of an urn and its contents which he had placed on his lot and to thatch the grave of his daughter at Christmas time, the service to continue from year to year until the order was countermanded. Defendant cited the above rules and refused to permit Wessling to do this work. Thereupon plaintiff, asserting that the rules are arbitrary, unreasonable and an unlawful restriction upon his rights, brought this suit to enjoin defendant from enforcing them. The trial court held that the rules constituted an unlawful invasion of plaintiff's property rights and decreed that an injunction issue as requested. Defendant appealed.\\nIt is conceded that Wessling is a skilled florist fully competent to do the work, and that he would do it in conformity to and as required by the rules and regulations of the association. The sole question presented is whether a lotowner who wishes to decorate and beautify his lot in a proper and permissible manner has the right to have the work done by a competent person of his own choosing, or whether the association has the right to prohibit him. from employing anyone except its own employes to do such work.\\nWhile all courts recognize that cemetery associations may impose and enforce reasonable rules and regulations in respect to tbe matter of caring for; improving and decorating the burial lots therein, the courts which have had occasion to consider the question are nearly unanimous in holding that a rule prohibiting a lotowner from having the work of decorating his lot done'byi a competent person of his own selection and requiring that such work be done by employes of the association is unreasonable and void.\\nIn Chariton Cemetery Co. v. Chariton Granite Works, 197 Iowa, 403, 197 N. W. 457, 32. A. L. R. 1402, a rule providing that the work of grading and improving the lots and constructing the foundations for monuments should be done only by employes of the company was declared unreasonable and void. In the absence of any showing as to the character of the conveyance to the lotowner, the court assumed that he did not acquire the absolute fee but merely an exclusive right of sepulture subject to \\\"reasonable rules as to the improvement and adornment of their lots.\\\"\\nAmong other things the court said:\\n\\\"Any rule of the company that would deprive him of the right to personally care for, beautify, adorn and improve the burial place of his dead would be abhorrent to many of the finer instincts of mankind. A rule that required that the work be of a certain character, conform to certain standards, or be done in a certain manner would not deprive him of that right, and would not, on that account, be unreasonable; but one that obliged him to forego the right of personal attendance or labor in marking or beautifying the spot that he had provided as the last resting place of those near to him in life, so long as he conformed to proper regulations, would be unreasonable. What he might do himself, he might rightfully do by another of his own choosing whom he might regard as more competent or capable. Any regulation that prohibited him from so doing would, we think, be unreasonable.\\\"\\nWhile the precise point here in question was not involved in Manswer v. Astoria, 100 Ore. 435, 198 Pac. 199, the authorities defining the regulatory powers of cemetery associations over their cemeteries and the rights of those who acquire burial lots therein are exhaustively reviewed by the Oregon court and the conclusions deducible therefrom are carefully and clearly set forth. The court said, among other thing, that:\\n\\\"A cemetery is not only a place where the living may bury their dead, but it is also a place where they may express their affection and respect for those dead by marking and decorating the place of interment.\\\"\\nAfter saying that the rights granted are subject to all reasonable rules and regulations established for the government of the cemetery, and that the authorities do not always agree as to what regulations are reasonable, the court said:\\n\\\"The majority of the courts dealing with the question have ruled that a cemetery proprietor cannot by a rule, adopted after the sale of a lot for burial purposes, say to the purchaser that all improvements must be made by or under the supervision of the superintendent of the cemetery and that the purchaser cannot make the improvements in person or by his own agent.\\\"\\nIn Ex parte Adlof, 86 Tex. Or. 13, 215 S. W. 222, it is said:\\n\\\"All expressions from the courts, as far as they have come to our notice, seem to recognize the fact that a cemetery is not only a place where the dead may be buried, but it is also one in which the living may give expression to their affection and respect of the dead by marking and decorating the place of interment and beautifying its surroundings. In other words, the right to enter .the grounds for the purpose of burying the dead under reasonable restrictions and regulations is accompanied by the right to care for the grave subject to like reasonable regulations. We believe that one having the right of sepulture, desiring to mark or beautify the grave may exercise the privilege either in person or through the agency of another of his own selection.\\\"\\nAn ordinance prohibiting any person other than the lot owner or a relative of a person buried therein from doing such work was held unreasonable and void.\\nIn Nicolson v. Daffin, 142 Ga. 729, 83 S. E. 658, L. R. A. 1915A, 168, the Evergreen Cemetery Company had conveyed a lot solely as a place for the interment of the dead and subject to all the rules and regulations then or thereafter adopted for the government of the cemetery. Thereafter the city of Savannah purchased the cemetery and placed it under the control of its park and tree commissioners who prohibited plaintiff from having work done on the lot by a florist and from placing fertilizer thereon unless purchased from the commision. The court said:\\n\\\"The park and tree commission would have the right to pass any reasonable rule affecting the improvements in the lots; but it would seem to pass beyond the region of legitimate regulation to require of a lot-owner that she buy her fertilizer from the park and tree commission, and that no work would be permitted by a gardener of her selection, however capable, and however properly the work may be done. Of course they could impose reasonable regulations respecting the time of work, and such other requirements as would tend to the protection of the cemetery and other lot-owners. In their resolution the commissioners arbitrarily refused to allow the plaintiff to employ any person for hire, irrespective of his competency to do the work and of the nature of the work to be done, and they undertook further to require that all material be furnished by them, as well as the necessary labor, and based their refusal on their ability to furnish cheaper service. We think the action of the board, as contained in their resolution, amounted to an arbitrary refusal to consent to the employment of any agent by the plaintiff to work upon her lot, or to the use of any material not purchased from the park and tree commission.\\\"\\nThe commission was enjoined from enforcing the regulation.\\nCity Council of Augusta v. Bredenburg, 146 Ga. 459, 91 S. E. 486, is cited as holding otherwise. The city owned and maintained a cemetery, and appointed a \\\"cemetery brickmason and gravedigger.\\\" By ordinance all other persons were excluded from digging graves or constructing vaults. The court cited Nicolson v. Daffin, supra, as authority for the proposition that the certificates issued to lotowners did not convey the fee but merely an easement which was subject to reasonable control and regulation, and held that the easement was subject to the above regulation and that the lower court erred in enjoining its enforcement. The court did not express any intention of departing from the holding in the Nicolson case in respect to work of the character involved in that case.\\nRoanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769, is also mentioned as holding otherwise. The plaintiff, a private cemetery association, did not execute formal deeds but issued a certificate to the purchaser entitling him \\\"to own and occupy the lot specified, but only upon the terms and conditions prescribed by the company.\\\"\\nIt was held that a regulation that all graves should be dug and refilled by the superintendent was valid and enforceable against one who purchased with knowledge of that regulation. The question of the right to beautify the grave was not involved or considered.\\nState v. Scoville, 78 Conn. 90, 61 Atl. 63, is also sometimes cited as holding otherwise. But the rule there in question simply prohibited the planting, cutting or trimming of herbage, or the doing of any other work for the improvement or adornment of the lots, \\\"except by the consent and direction of the president or superintendent of said association.\\\"\\nIt contained no provision that the work should be done by employes of the association or forbidding the lotowner from having it done by a person of his own selection. The court held the regulation valid saying that it \\\"was presumably intended to serve the lawful purpose of enabling the association to secure the proper care and management of burial lots;\\\" and saying further that it was not a case of an arbitrary refusal \\\"to permit a lotowner, or one acting under his authority\\\" to do the work, as it did not appear that any request for permission to do it had ever been made.\\nIn Cedar Hill Cemetery Co. v. Lees, 22 Pa. Super. Ct. 405, a rule prohibiting all persons from \\\"cutting grass, planting flowers, sodding and grading lots\\\" for lotowners and reserving to the company \\\"the right to do all such work\\\" was sustained. But in Benson v. Laurel Hill Cemetery Co. 68 Pa. Super. Ct. 242, a similar rule adopted after lotowners had long been permitted to employ persons of their own choosing to do such work was held to be unreasonable and its enforcement was enjoined. The opinion distinguishes the prior case, or attempts to do so, on the ground that the restrictions in the deed were different.\\nOther decisions showing the general trend of the authorities are Silverwood v. Latrobe, 68 Md. 620, 13 Atl. 161; Johnstown Cem. Assn. v. Parker, 28 Misc. 280, 59 N. Y. Supp. 821; Ritchey v. City of Canton, 46 Ill. App. 185; Graves v. City of Bloomington, 67 Ill. App. 493; Brown v. Hill, 284 Ill. 286, 119 N. E. 977.\\nThe statute authorizes cemetery associations to \\\"acquire and manage all real or personal property necessary or proper for the establishment, embellishment, care and management of a cemetery.\\\" G. S. 1923, \\u00a7 7558. It also authorizes the trustees to sell and convey burial lots \\\"upon such terms and subject to such conditions and restrictions as they shall prescribe;\\\" and requires that, \\\"every conveyance of any such lot shall be expressly for burial purposes and no other.\\\" G. S. 1923, \\u00a7 7562.\\nThe deed to plaintiff conveys the lot for burial purposes only and subject to the condition, \\\"that the said premises and the use thereof shall, at ail times, be subject to the rules, regulations, limitations and restrictions prescribed by said association.\\\"\\nDefendant insists that the powers conferred by the statute and the restrictions in the deed gave it the right to require that the work of decorating the lot should be done only by its own employes, and that the rule applied in other jurisdictions is not applicable here for that reason. We find no ground for such a distinction. In many of the cases cited the conveyance was subject to conditions which limited and restricted the rights of the lotholder to fully as great an extent as those imposed upon plaintiff.\\nCedar Hill Cemetery Co. v. Lees, supra, is the only case to which our attention has been called in which a rule denying a lotowner the right to have his lot decorated and beautified by a person of his own selection has been sustained, and the same court in the later case of Benson v. Laurel Hill Cemetery Co. supra, held that rule unreasonable and enjoined its enforcement. In the Virginia and Georgia cases, a rule requiring that the digging and refilling of graves shall be done only by employes of the association was sustained. In Ritchey v. City of Canton, 46 Ill. App. 185, however, it was held that such a rule could not be enforced against one who had purchased his lot before the rule was adopted.\\nThe duty to maintain the cemetery in a sanitary condition may justify a requirement that graves be dug and refilled only by employes of the association, but that question is not involved in this case.\\nThe work of digging and refilling the grave is done because necessary; the work of adorning it is done as an expression of regard and affection for the one there buried. Taking away the right to do the work of digging and refilling the grave would not violate the sensibilities of the lotowner like taking away the right to do the work of adorning it in after years. The right to bury his dead in the ground purchased for and devoted to that purpose has carried with it from time immemorial the right to give expression to his regard and affection for them by caring for, marking and decorating their final resting place, including the right to do such work either personally or through those selected by himself.\\nOf course the association may require that such work be of a character and be performed in a manner to conform to the general plan for improving and beautifying the cemetery, and may adopt and enforce such reasonable rules as may be necessary or proper to accomplish that object and to protect the cemetery and the lots, graves and decorations therein from injury. It may regulate the exercise of the rights possessed by the lotowner, but it cannot prohibit him from exercising the right to have his lot cared for and decorated by persons of his own choosing.\\nJudgment affirmed.\\nHolt, J., took no part.\"}"

minn/147505.json

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+"{\"id\": \"147505\", \"name\": \"IN RE ESTATE OF MARY L. MORGAN\", \"name_abbreviation\": \"In re Estate of Morgan\", \"decision_date\": \"1927-01-07\", \"docket_number\": \"No. 25,267\", \"first_page\": \"425\", \"last_page\": \"426\", \"citations\": \"169 Minn. 425\", \"volume\": \"169\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:44:58.170400+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wilson, C. J.\", \"parties\": \"IN RE ESTATE OF MARY L. MORGAN.\", \"head_matter\": \"IN RE ESTATE OF MARY L. MORGAN.\\nJanuary 7, 1927.\\nNo. 25,267.\\nClifford L. Hilton, Attorney General, and Albert F. Pratt, Assistant Attorney General, for relator.\\nReported in 211 N. W. 823.\", \"word_count\": \"331\", \"char_count\": \"1800\", \"text\": \"Dobell, J.\\nCertiorari on the relation of the attorney general to review the order of the probate court of Wabasha county determining the inheritance tax in the estate of Mary L. Morgan deceased.\\nMrs. Morgan died testate. She left surviving her two sons and one daughter. By the terms of the will Alexander Morgan, a son, was the residuary devisee and took the homestead in fee, which was valued at $6,000. The probate court, in addition to the statutory exemption of $10,000, allowed Alexander Morgan the value of the homestead as exempt. The homestead was never set apart.\\nThe contention of the state is that Alexander Morgan, if there had been no will, would have received one-third of the homestead, and therefore should not be allowed more than one-third of its value as exempt. It does not insist that one-third is not exempt.\\nThe members of the court have not been in entire accord as to the proper tax when the heir takes the fee of the homestead by the will. In re Murphy, 146 Minn. 418, 178 N. W. 1003, 179 N. W. 728; In re Eckstrum, 159 Minn. 231, 198 N. W. 459; In re McDougall, 160 Minn. 393, 200 N. W. 353. We have not held, and it has not been our view, that an heir who would receive a share of the fee by descent, free of an inheritance tax, gets more than such share as exempt when he takes a greater portion under the will. Since the state does not object to the allowance of an exemption upon one-third of the estate, we need go no further. The order should be modified by imposing a tax upon two-thirds of the homestead value, or $4,000.\\nOrder modified.\\nWilson, C. J.\\nI concur in the result.\"}"

minn/162726.json

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+"{\"id\": \"162726\", \"name\": \"GEORGE B. HIGGINS & COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY\", \"name_abbreviation\": \"George B. Higgins & Co. v. Chicago, Burlington & Quincy Railroad\", \"decision_date\": \"1917-01-26\", \"docket_number\": \"Nos. 20,006, 20,007\\u2014(156, 157)\", \"first_page\": \"402\", \"last_page\": \"408\", \"citations\": \"135 Minn. 402\", \"volume\": \"135\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:47:42.671715+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE B. HIGGINS & COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.\", \"head_matter\": \"GEORGE B. HIGGINS & COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.\\nJanuary 26, 1917.\\nNos. 20,006, 20,007\\u2014(156, 157).\\nCarrier \\u2014 perishable freight \\u2014 burden on carrier, when.\\n1. A common carrier, of perishable freight is not an insurer of its delivery at destination in an undamaged condition. The rule in this state is that, when the shipper has shown that the damage occurred while the 'goods were in the carrier\\u2019s possession, a prima facie case of liability is made out, and the burden of proof is on the carrier to show that the damage was not caused by its negligence. Such a showing is a good defense, and it is not necessary to prove that the loss was caused by the natural tendency to decay.\\nCarrier \\u2014 receiving shipment from connecting carrier \\u2014 undiscoverable defect.\\n2. It was admitted that the damage was caused from the freight, potar toes in sacks, being loaded in cars in which the wood of the bottoms was permeated with salt. These cars were furnished by a prior carrier, and the potatoes transported in them over the line of such carrier and delivered, to defendant, a connecting carrier, which continued the shipment to its destination on its line. The unsuitable character of the cars was not discoverable by defendant on any reasonable inspection. It is held that the duty of defendant when it received the cars from the connecting carrier was to use due care, skill and diligence in inspecting them, that it would be liable for a breach of such duty, but not for a defect which was unknown to. it and not discoverable by the exercise of due care, skill and diligence.\\nVerdict sustained by evidence.\\n3. The evidence was sufficient to sustain the verdict in one of the two cases on the question of the extent of the damages, and there was no error in receiving the evidence bearing on that question.\\nTwo actions in the district court for Hennepin county, one to recover $1,032.61 for damage to a shipment of potatoes over defendant\\u2019s road to New Orleans, Louisiana, and the other to recover for damage to two shipments to St. Louis, Missouri. The actions were tried together before Molyneaux, J., who at the close of the testimony denied defendant\\u2019s motions for directed verdicts, and directed a verdict in one case for the plaintiff, and a jury which returned verdicts aggregating $1,630.74. From an order denying its motions for judgment notwithstanding the verdict or for new trials, defendant appealed.\\nReversed and judgment for defendant ordered in one case. Affirmed in the second case.\\nBarrows, Stewart & Ordway, for appellant.\\nH. R. Hewitt, for respondent.\\nReported in 161 N. W. 145.\", \"word_count\": \"2590\", \"char_count\": \"14661\", \"text\": \"Bunn, J.\\nThese eases, tried together in the court below, originally involved 18 causes of action, each for damages to a carload of potatoes. Only three of the'causes of action are involved on this appeal, the others having been disposed of. Two of the three causes of action concern shipments of potatoes from St. Paul to St. Louis, the other a shipment from St. Paul to New Orleans. The St. Louis shipments involve the same questions, the New Orleans shipment different questions.\\nFirst, as to the facts in regard to the St. Louis shipments. Plaintiff buys potatoes in Minnesota and ships in carload lots to points out of the state. The two shipments in question originated at Mora, Minnesota, on the line of the Great Northern Railway Company. The potatoes were loaded by plaintiff in two cars furnished by the Great Northern Company. They were sacked, and each car contained 240 sacks. The cars were consigned to plaintiff at Chicago, with instructions to hold at St. Paul. On arrival at St. Paul, new bills of lading were issued by defendant, and the cars consigned to St. Louis. The potatoes were not unloaded at St. Paul, but were inspected there by plaintiff. This was in accord with the established custom observed by plaintiff in its extensive business. On the arrival of these two cars at St. Louis, it was found that the potatoes had started to decay. After they were unloaded it was discovered that the cause was that the cars had salty bottoms, due to their having been used before for shipping hides or other articles where salt or brine was used. The testimony was conclusive that this condition could not be discovered until the potatoes were unloaded, and was not observable even then on casual inspection, as the salt or brine had worked into the wood of the car floor or sides. It was stipulated between counsel on the trial that the damage to these two cars was all due to the fact that the potatoes were loaded and shipped in cars with salty bottoms. \\u00a1\\nThe trial court, though at first taking the view that defendant was not liable for the damage to these cars, finally directed a verdict for the plaintiff on these causes of action, the amount of the -damage being admitted. Defendant moved for judgment notwithstanding the verdict, or for a new trial. The motion was denied, and this appeal taken.\\nIt was apparently the position of the trial court, and the position is insisted on by plaintiff on this appeal, that defendant, though not responsible for the salty condition of the cars furnished by the Great Northern Company to plaintiff, and not negligent, is nevertheless liable as an insurer, and responsible for all damages, there being proof that the potatoes were in good condition when entrusted to its care, and in bad condition on arrival at destination, and the damage not being due to the inherent nature of potatoes to decay. Defendant claims that this proof only makes a prima facie case of negligence, which may be rebutted by proof that the damage was not caused by any negligence of the car rier, and that in the present ease the presumption raised was conclusively rebutted.\\nIs it the law, as claimed by plaintiff, that a common carrier of perishable freight is an insurer of its delivery at destination in an undamaged condition, and can only escape liability by proving that the damage was caused by the act of God or the public enemy, or that the damage arose out of the inherent nature of the property to decay? Plaintiff insists that this is the common-law rule, and cites Minnesota cases that are claimed to declare it to be the law in this state. 1 Dunnell, Minn. Dig. \\u00a7 1323, and cases cited; Presley Fruit Co. v. St. Louis, I. M. & S. Ry. Co. 130 Minn. 121, 153 N. W. 115. In contending that these cases or any cases in this state apply the comimon-law rule that the carrier is an insurer to shipments of perishable freight, we think plaintiff is mistaken. Our reports are replete with eases announcing and applying the rule that proof of no negligence is a good defense in cases of injury to perishable freight, such as fruit and vegetables. Defendant need not prove that the damage was caused by the natural tendency to decay. It is sufficient to prove that it was not caused by its negligence. The rule that proof of injury while in the carrier's possession makes a prima facie case of negligence, which may be rebutted, like any other prima facie case, by proof that the damage was not caused by negligence of the carrier, has been often distinctly stated by this court. 1 Dunnell, Minn. Dig. \\u00a7 1333, and cases cited. Dunnell, Minn. Dig. 1916 Supp. \\u00a7 1333, and cases cited. Some of the eases cited state in so many words that the carrier is not an insurer in the shipment of perishable freight. Brennisen v. Pennsylvania R. Co. 100 Minn. 102, 110 N. W. 362, 10 Ann. Cas. 169; B. Presley Co. v. Illinois Central R. Co. 117 Minn. 399, 136 N. W. 11. All of them proceed on the theory that the liability rests on proof of negligence, and that the prima facie ease made by showing that the injury occurred while the goods were in the carrier's possession may be rebutted by proof that the carrier was not at fault. We hol'd that this rule, and not the rule that the carrier is liable as an insurer, applies to the facts in the instant case.\\nWas the presumption rebutted? Does the evidence establish the want of negligence on the part of defendant? There is no doubt that defendant was in no way negligent in furnishing these cars, as it ad mittedly had nothing to do with that. They were furnished plaintiff at Mora by the Great Northern Company. That they were in fact unsuitable for shipping potatoes because of the salty bottoms is mlade plain by the evidence, but was defendant responsible for this condition ? Plaintiff makes the claim that defendant is liable because it adopted the cars as its own and used them on its line to continue the shipments. This argument is based on the law that it is the duty of the carrier to furnish proper equipment, and the rule that when a carrier uses the cars of another connecting carrier it is responsible for their condition. If this rule \\\"creates a liability in this case, it is. a liability not based on negligence, or on any breach of duty, unless it be a nqminal one. Plaintiff expected the potatoes to proceed to their destination without unloading. It was impossible to discover the salty condition of the car bottoms. This is plain, both from the direct evidence, and from the fact that plaintiff's employees did not discover their condition either when \\u00bfhe potatoes were loaded at Mora, or when they were inspected at St. Paul. We notice a claim that the cars were Burlington cars, but we find no evidence to support such a claim. It is clear, in our opinion, that if defendant is liable for the condition of these cars, it must be on the theory that there is an absolute liability, irrespective of actual negligence or fault, arising from continuing the shipments on defendant's line in the cars in which they arrived at St. Paul. The claim that this is the law is largely based upon the case of Shea v. Chicago, R. I. & Pac. Ry. Co. 66 Minn. 102, 68 N. W. 608. The facts in the Shea case were that the defendant carrier knew that the car was unfit for the shipment of lemons when it received it from the connecting carrier. It was negligent in using such a car. While this is not made prominent in the opinion, and while some expressions therein seem to support a rule of absolute liability, it is nevertheless plain, taking- the opinion as a whole, that the liability of defendant is predicated upon its actual negligence in the care of the lemons while in its custody. There is no doubt that it is generally correct to say that it is the duty of a carrier to provide safe and suitable vehicles for the transportation of goods entrusted to its care, and that he is not excused from this duty when the goods are received and carried by him in vehicles furnished by a connecting carrier. He adopts and makes such vehicles his own for the purpose of conveying the goods. 2 Hutchinson, Carriers, \\u00a7 498-501. The statement of the author in one part of the text that the carrier will be liable for any damage arising from the unfitness of the vehicles for the carriage of the goods should be read in connection with the statement that, if the carrier fails to make reasonable inspection of the vehicles, he will be deemed guilty of such negligence as will render him liable for any resulting loss. It seems to us that the liability of the carrier who continues a shipment received from a connecting carrier in the cars of the latter should rest on negligence, some fault on its part, as its failure to properly inspect the vehicles before continuing the shipment. It will doubtless he true except in rare instances that the unsuitable character of the car is discoverable on inspection, and this was the fact in the Shea ease and in all the cases we have found that concern the liability of carriers for failure to furnish suitable cars or accepting from other carriers shipments in cars that are defective. In the case at bar the condition that caused the damage was not discoverable. We have been able to find no ease like it among the many decisions. We think that the authorities generally recognize that the liability of the carrier for failure to furnish suitable cars, whether the cars be its own or the cars of a connecting carrier which come to it with their freight, is not an absolute liability, but only results in case of its failure to exercise due care, skill or diligence. 5 Thompson, Negligence, \\u00a7 6591; Moon v. Northern Pacific R. Co. 46 Minn. 106, 48 N. W. 679, 24 Am. St. 194. See note to Louisville & N. R. Co. v. Church, 130 Am. St. 47, where the authorities are collected. The duty of the carrier is that of properly inspecting the cars of other roads that are received by it for transportation. If this duty is performed, or if the defect is one that a proper inspection will not disclose, there is no liability.\\nWe have not considered it necessary to refer to the language of the Carmack amendment, but will say that it makes a carrier liable for the loss or damage caused by it or by the carrier which continues the transportation. It does not make the carrier liable for damage caused by a prior carrier. We have assumed, without so deciding, that the evidence is sufficient to show that the damage occurred after the cars were received by defendant.\\nOur conclusion in the ease involving the two St. Louis cars is that there should be judgment for the defendant notwithstanding the verdict.\\nAs to the action involving the New Orleans shipment it is conceded that plaintiff made a case for the jury. It is the claim of defendant that there was no competent evidence as to the extent of the damage to the potatoes while they were in transit. The car arrived at New Orleans \\u2022on Sunday, October 5, and notice of its arrival was given the consignee on the sixth. Thq consignee refused to receive the potatoes, which were found to be \\\"more or less decayed.\\\" They were unloaded from the car and piled upon the unloading platform, where they remained until October 11, when they were inspected by an employee of a commission firm who reported that they were \\\"more or less decayed.\\\" The commission man to whom the potatoes were consigned was permitted to give his opinion that the condition of the potatoes on the eleventh was the same as on the sixth, and the extent of the loss was estimated on the basis of their condition at the later date. While the evidence is not very satisfactory, we do not feel justified in saying either that it was error to receive it, or that it is conclusive that part of the loss was caused while the potatoes were on the unloading platform, in defendant's possession as a warehouseman.\\nThe order in the case involving the two St. Louis' cars is reversed, and judgment for defendant notwithstanding the verdict ordered.\\nThe order in the ease involving the New Orleans shipment is affirmed.\"}"

minn/1635570.json

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+"{\"id\": \"1635570\", \"name\": \"Paschal St. Martin, Respondent, vs. Stephen Desnoyer, Appellant\", \"name_abbreviation\": \"St. Martin v. Desnoyer\", \"decision_date\": \"1854-01\", \"docket_number\": \"\", \"first_page\": \"156\", \"last_page\": \"161\", \"citations\": \"1 Minn. 156\", \"volume\": \"1\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:32:09.573288+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Paschal St. Martin, Respondent, vs. Stephen Desnoyer, Appellant.\", \"head_matter\": \"Paschal St. Martin, Respondent, vs. Stephen Desnoyer, Appellant.\\nWords charging the commission of an act which, if committed, would subject the person charged therewith to indictment at common law, are actionable per se, and the words, \\u201cYou have stolen my belt,\\u201d are therefore actionable in themselves.\\nWhere words alleged to be slanderous are of equivocal import, it is not error to submit to the Jury the question of the intent with which the words were spoken.\\nA verdict will be set aside which is the quotient arising from the division by twelve of the aggegate of twelve different sums specified by each individual juror, but it is incompetent to prove such facts, or any facts impeaching the verdict, by jurors them selves, or by third persons upon hearsay from jurors.\\nIs it error for Counsel in addressing the Jury to comment upon the amount of a former verdict in the same action? If it be, it stands upon a footing with the introduction of improper evidence, and, unless objection is made on the trial, cannot be assigned as error.\\nThe question of damages is the peculiar province of Juries; and unless they are so excessive as to warrant the inference of prejudice, partiality or corruption, a verdict will not be disturbed on the ground of excessive damages. ,\\nUpon an Appeal from an order refusing to award a new trial, this Court has no power to affirm the judgment with twelve per cent, damages and double costs.\\nThis was an action of Slander, tried at the April Term of the District Court, in the County of Ramsey. The Declaration charged, among others, the utterance of the following slanderous words : \\u201c You stole my belt! \\u201d \\u201c You have stolen my belt. You might as well have stolen my belt, as you broke open my. two cassets (trunks) two years ago!\\u201d The Defendant pleaded the general issue. After the testimony was closed, the Defendant\\u2019s counsel asked the Court to charge the jury, that the words \\u201cYou have stolen my belt\\u201d were not actionable, andnorecovery couldbehadwithoutproof of special damage; and that the words, \\u201cYou have stolen my belt, as you broke open my two cassets (trunks) two years ago,\\u201d were not actionable, and the Defendant was not liable without proof of special damage. His Honor, the Judge, refused so to charge, and instructed the jury that, if they believed the Defendant intended to charge the Plaintiff with stealing, the words were actionable. To all of which the Defendant\\u2019s counsel excepted. The Jury found a verdict for the Plaintiff for $212 50.\\nOn the 11th day of May, 1852, the Defendant moved for a new trial, upon the exceptions taken to the charge.\\nAnd farther, because the jury made up their verdict by agreeing each to specify a sum as due to the Plaintiff, to divide the aggregate of the sums so specified, by twelve, and to take the quotient as the result.\\nAlso, because the Counsel of the Plaintiff, in his address to the jury, commented upon the amount of a verdict rendered upon a former trial of the same action.\\nAlso, because the damages were excessive.\\nThe affidavits of three jurors were introduced to show the manner in which the verdict was made up, and of one of the Defendant\\u2019s Attorneys to show the objectionable matter of the address of Plaintiff\\u2019s Counsel to the jury.\\nA new trial was denied, and the cause came into this Court upon an Appeal from the order denying a new trial.\\nRice, Hollinshead & Becker, for Appellant.\\nI.' Atwater, for Appellee.\", \"word_count\": \"2157\", \"char_count\": \"12343\", \"text\": \"By the Cov/ct.\\nChateield, J.\\nThis is an action on the case for verbal Slander, and it is brought into this Court by Appeal from an order made therein overruling the Defendant's motion for a new trial.\\nThe causes urged for a new trial will be considered in the order in which they are stated in the motion.\\nThe first point is, that \\\" the Judge (before whom the cause was tried) erred, in charging the jury that the words 'You Time stolen my beltf are actionable.\\\"\\nThe rule is: that words charging a person with having committed an act for which, if the charge were true, he would be punishable criminally by indictment, are actionable per se. Young vs. Miller, 3 Hill's Rep. 21, and the cases there referred to by the Court. Stealing or larceny is an act \\u2014 a crime, thus .punishable. All larcenies were, at common law, felonies. The words \\\"You have stolen my belt\\\" contain a direct and unequivocal accusation of the crime of larceny, and are therefore actionable. This instruction to the jury, given as it was in the abstract, and without assuming that the words were proved, was correct.\\nThe second point is, that \\\"the Judge erred in charging the jury that the words i You have stolen my belt; you might as well steal my belt, as you broke open my cassets two years ago,' are actionable.\\\"\\nThis point is not accurately stated according to the instruction given by the Judge, as contained in the bill of exceptions. It is there stated that upon these words the Judge charged the jury, \\\" that if they believed the Defendant intended to charge the Plaintiff with stealing, the words were actionable, lie thus left it to the jury to ascertain and determine the moaning and intent of the words \\u2014 to give them construction and application \\u2014 and, in effect, instructed them, as a matter of law, that the words were actionable,\\\" or not, as they should or should not find that the Defendant intended thereby to charge the Plaintiff with the crime of stealing \\u2014 that if the Defendant did so intend, the words were actionable: otherwise, not. The question of intent was properly left to the jury, and the rule of law thereon was correctly given to them.\\nThe third point is, that \\\" the jury made up their verdict by agreeing each to specify a sum as due to the Plaintiff, and divide the aggregate of the sums so specified by 12, and to take the quotient as the result.\\\"\\nIf this point, in the form in which it is stated, is sustained by competent proof, it is conclusive against the verdict. The evidence adduced in support of it is,\\u2014\\nFirst. The affidavit of Mr. Hollinshead, one of the Counsel for the Defendant, \\u2014 that two of the jurors of the said jury informed him that the verdict \\\"was made up by agreeing that each juror should specify a sum as due to the Plaintiff: that the sums so specified should be added together, and the aggregate amount divided by 12, and that the quotient should be their verdict; that the agreement thus made was carried out, and the verdict rendered by the jury was the result thereof.\\\"\\nSecond. The affidavits of two of the said jurors to the same effect and extent: one of whom was one of the informants of Mr. llollinshead.\\nThe Plaintiff objects, that these affidavits are neither admissable nor competent evidence to prove the fact sought tobe established thereby. Are they ?\\nIt is now quite conclusively settled that the affidavits of jurors will not be received when offered to prove misbehavior in the jury with regard to tire verdict. 1 Greenleaf's Ev. Sec. 252, A. This rule is stated in very strong language in Graham's Practice, second edition, p. 315: \\\"In no case will the affidavits of jurors be received to impeach their verdict: the fact must be established by other evidence.\\\" The affidavits of tire jurors offered in this case, to show misconduct on their part, and thus impeach and avoid the verdict, must be excluded.\\nThe policy and reasons which exclude, in such cases, the affidavits of jurors, apply with increased force against their declarations without oath to third persons. If it is not properly allowable to put a verdict within the power of the affidavits of jurors, how much less allowable it must be to place the same verdict at the mercy of their mere declarations. It would be to receive, as competent evidence, hearsay, \\u2014 the acknowledged source of which is incompetent. The proposition palpably exposes its own error and impropriety. The affidavit of Mr. llollinshead must also be excluded.\\nThe affidavits upon which this allegation against the verdict is founded being excluded, the point is without support, and must be disregarded. And it would seem to be unnecessary to refer to the joint affidavit of three members of the jury, produced by the Plaintiffs to controvert it. It may, however,, be proper to say that this affidavit was admissible to support the verdict, had the evidence to impeach it been competent. It shows that the amount of the verdict was arrived at in the manner alleged by the Defendant, but it very explicitly denies that there was any agreement among the jurors by which they were to be bound by the result or precluded from objecting to it. It states, substantially, that each juror was at perfect liberty to obj ect to the result \\u2014 and they did object \\u2014 if not satisfied : and that the operation was several times repeated; that it was proposed as a means of arriving at a fair measure of damages,\\u2014 and that the verdict, as finally rendered, was agreed to by discussion among the jurors -as to its justice and cor redness which took place after the sum had been so found.\\nThe facts stated in this affidavit do not vitiate the verdict. To have that effect, it should appear that the jury, before ascertaining the quotient, agreed among themselves to abide at all events by the contingent result as their verdict, and that it was made up and rendered accordingly. Graham's Pr. second ed. 315. Such seems to be the rule.\\nThe fourth point is, \\\"that the Attorney for the Plaintiff, in addressing the jury, referred to, and urged, in support of his case, the amount of the verdict given on the former trial.\\\"\\nThis point rests solely upon an affidavit stating the fact urged as error. The point is not of that kind or character that ought to be allowed to stand upon ex jpcurtc affidavits. The fact alleged must have transpired in the course of the proceedings upon the trial in Court, and in the presence of the Counsel for the opposite party. Errors thus occurring are the proper subjects to be included in a bill of exceptions or case, to be settled by the Judge upon notice to the opposite party.\\nTo make this allegation of- error \\u2014 -if good at all \\u2014 effectual however presented, it should appear that the act complained of was objected to at the time, the objection overruled, and exception taken.\\nThe rules governing the admission of evidence apply to and control the question made by this point; and it cannot be contended that the admission of improper evidence to the jury, without objection, can bo alleged as error upon affidavit after verdict.\\nThe fifth point is, that \\\"the damages allowed by the jury are excessive,\\\"\\nThe action is for Slander. The damages assessed by the verdict are, $212 50. It does not appear that there was any evidence in the case to show what was the Defendant's personal or j>ecuniary rank and influence in society at the time when the slanderous words are alleged to have been spoken. The words were therefore given to the jury without any detraction from or aggravation to the injury of the Plaintiff, which their common and ordinary meaning and effect would naturally produce. It was exclusively the right and duty of the jury to determine the extent of such injury, and the amount of damages which the Plaintiff had sustained thereby; and in this, as in all kindred cases, the liquidation by the jury is conclusive: unless the sum be so excessively large and disproportionate as to warrant the inference that they wore, in making up their verdict, improperly swayed by prejudice, preference, partiality, passion or corruption. The circumstances of this case will not warrant this Court in drawing any such inference.\\nThe order from which the Appeal in this case was taken must be affirmed with costs.\\nThe Plaintiff asks that the judgment be affirmed with twelve per cent, damages and double costs. If this Court was disposed to grant this request, it has not the power to do it.\\nFirst. Because the Appeal is not from the judgmmt> but \\u2022from the order refusing a new trial; and,\\nSecond. Because the section of the Statute under which the Plaintiff claims these allowances (R. S. 416, Sec. 26) does not apply to appeals. Double costs may, in the discretion of the Court, be awarded to \\\"the party prevailing on a writ of Error\\\" \\u2014 not on an Appeal.\\nThat section of the Statute has been so amended as to preclude the recovery of damages by the prevailing party on a writ of Error. Amendments, p. 13, Sec. 52.\"}"

minn/1650211.json

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+"{\"id\": \"1650211\", \"name\": \"MACOMB SEWER-PIPE COMPANY v. MARY A. HANLEY\", \"name_abbreviation\": \"Macomb Sewer-Pipe Co. v. Hanley\", \"decision_date\": \"1895-06-11\", \"docket_number\": \"Nos. 9363\\u2014(178)\", \"first_page\": \"350\", \"last_page\": \"352\", \"citations\": \"61 Minn. 350\", \"volume\": \"61\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:06:27.956526+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MACOMB SEWER-PIPE COMPANY v. MARY A. HANLEY.\", \"head_matter\": \"MACOMB SEWER-PIPE COMPANY v. MARY A. HANLEY.\\nJune 11, 1895.\\nNos. 9363\\u2014(178).\\nSeparate Actions on Note and Mortgage.\\nWhere A. and B. jointly made a mortgage, in which A. alone covenanted to pay the debt thereby secured, and B. alone executed the note secured by said mortgage, held, the party to whom the promise in each is made does not waive his right to sue on one instrument to recover personal judgment by reason of having brought suit on the other instrument to recover personal judgment.\\n33.es Judicata.\\nWhen an issue of fact litigated by the parties in a former action was not one necessarily involved in the determination of that action, held, the judgment in that action does not estop the parties as to such issue of fact, when raised in another action for a different cause of action.\\nAppeal by defendant from a judgment of the district court for Kamsey county entered pursuant to an order for judgment by Kelly, -J.\\nAffirmed.\\nJ. G. Mcwigan, for appellant.\\nS. G. Olmstead, for respondent.\\nReported in 63 N. W. 744.\", \"word_count\": \"1154\", \"char_count\": \"6500\", \"text\": \"CANTY, J.\\nTbis is an appeal from a judgment granted on the pleadings in favor of the plaintiff, a corporation. The action is brought to recover from defendant the sum of $636.63, which it is Alleged she agreed, by a covenant in a mortgage made by her, to pay. The mortgage is set out as an exhibit to the complaint, and purports to be made by defendant and her husband to plaintiff, and mortgages certain real estate to secure the payment of that sum '\\\"according to the conditions of a note payable in six months, at eight per cent, per annum, bearing even date herewith.\\\" She alone made the covenants of warranty, and covenants that she is lawfully seised of the land. She also covenants to pay said sum. No foreclosure is prayed for.\\nIn her answer, defendant admits that she made and delivered the mortgage to plaintiff. But she alleges as a defense: That said mort gage and the note therein described \\\"were made, executed, and delivered to said plaintiff at one and the same time, and were given tor one and the same debt, and together form one entire contract, and constitute one and the same cause of action.\\\" That in March, 1893, plaintiff .commenced an action on said note against her and her said husband, in the complaint in which plaintiff alleged that she and her said husband made and delivered to it said note, and \\u2022demanded judgment for the amount of the same. That in her separate answer to the complaint in that action she \\\"denied each and every allegation therein contained, and demanded judgment that the plaintiff therein take nothing by that action, as against her. That said action was thereafter tried on its merits. That at said trial it was claimed by said defendant, Mary A. Hanley, as a defense to said action, and that the same was duly litigated and determined therein, that she never signed, made, or executed said note, or authorized any one to make, sign, or execute the same for her; that the words 'Mary A. Hanley,' on said note, were not the signature of said defendant, but were a forgery; and that said note was altered by said plaintiff, or its agents, after the delivery thereof, by adding thereto the name 'Mary A. Hanley,' and changing the word T,' in said note, to the word 'we.'\\\" That on said trial the jury \\\"returned into said court their verdict therein in favor of said defendant, Mary A. Hanley.\\\" That thereupon judgment was duly made and given in her favor, and against plaintiff, \\\"whereby it was adjudged that said plaintiff is not entitled to any relief in said action, as against said defendant, Mary A. Hanley, and that it take nothing thereby, and that said defendant recover of said plaintiff, Macomb Sewer-Pipe Company, her costs and disbursements.\\\" There was a reply to this answer, which is not here material.\\nIt is true, as contended by appellant, that both the promise in the covenant and the promise in the note are to pay the same indebtedness. But it is contended by appellant that both these promises constitute but one cause of action, and th'at, by bringing suit on one instrument, plaintiff waived its right to bring suit on the other; that it should have set up all its grounds of action in one suit.\\nWe cannot agree with counsel. Defendant and her husband gave these separate instruments, each containing a promise to pay the debt for the purpose, among others, of allowing the plaintiff to bring .suit on one, without reference to the other, to recover personal judgment. Besides, she alone made the covenant; he alone made the note. The liability of each is on a separate instrument, and they could not be joined in one action. But even if she had in fact signed the note, as claimed, the same objection would lie, as he was not liable on the covenant, and could demur to that cause of action, and compel its dismissal. But, while separate suits may and must be maintained on these instruments, yet for many purposes they must be considered as one transaction; and we are not prepared to say that such an alteration of the note in the hands of the plaintiff as would make it guilty of forgery would merely avoid the note itself, and not also avoid the covenant in the mortgage.\\n' But it is not necessary to decide that question. The defendant has not, in this action, pleaded such an alteration of the note. She has. pleaded that the question of such alteration was litigated in the former action, but she does not state how it was decided, or that it was decided at all. The decision of that question was not necessarily involved in the result arrived at in the former action. In that action this defendant merely denied that she made the note. The jury returned a verdict for her, and judgment was thereupon entered in her favor. It does not appear from this that there was any such a fraudulent alteration of the note while in the hands of the plaintiff. The name of this defendant may have been thus added to the note before plaintiff received it, and plaintiff may have-honestly supposed that it was in fact her signature. \\\"A judgment is conclusive, by way of estoppel, only as to facts without the existence and proof or admission of which it could not have been rendered.\\\" Leonard v. Whitney, 109 Mass. 265, 268. To the same effect, see Hunter v. Davis, 19 Ga. 413; Bergeron v. Richardott, 55. Wis. 129, 12 N. W. 384; Irish-American Bank v. Ludlum, 56 Mirnn. 317, 57 N. W. 927.\\nThis disposes of the case, and the judgment appealed from is affirmed.\\nCollins, J., absent, took no part.\"}"

minn/1655345.json

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+"{\"id\": \"1655345\", \"name\": \"WASHINGTON LOAN AND TRUST COMPANY, Administrator, v. JOHANNA McKENZIE and Others\", \"name_abbreviation\": \"Washington Loan & Trust Co. v. McKenzie\", \"decision_date\": \"1896-04-27\", \"docket_number\": \"Nos. 9983-(268)\", \"first_page\": \"273\", \"last_page\": \"276\", \"citations\": \"64 Minn. 273\", \"volume\": \"64\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:30:22.258505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WASHINGTON LOAN AND TRUST COMPANY, Administrator, v. JOHANNA McKENZIE and Others.\", \"head_matter\": \"WASHINGTON LOAN AND TRUST COMPANY, Administrator, v. JOHANNA McKENZIE and Others.\\nApril 27, 1896.\\nNos. 9983\\u2014(268).\\nTax Title \\u2014 Acquisition by Grantee of Mortgagor.\\nA mortgagor cannot, as against the mortgagee, acquire a tax title to the mortgaged premises through a breach of his own covenant to pay the taxes. And in that respect his grantee stands in no better position than the mortgagor himself.\\nSame \\u2014 Acquisition of Tax Title by Stranger \\u2014 Subsequent Purchase from Mortgagor.\\nM. executed a mortgage to W., in which he covenanted to pay all taxes on the mortgaged premises. M. having defaulted in the performance of this covenant, the premises were sold for taxes, and purchased by L. Subsequently, but before the time of redemption from the tax sale had expired, L. obtained a quitclaim deed of the premises from M., under which he immediately went into possession, and thereafter took steps to perfect his tax title by causing notice to be given of the expiration of the time of redemption. No redemption having been made, L., in an action by W. to foreclose his mortgage, set up his tax title, claiming that it had extinguished the lien of the mortgage. Hel\\u00e9 that, after purchasing from the mortgagor, L. was disqualified from acquiring, as against the mortgagee, any new or additional rights under his inchoate tax title.\\nSame \\u2014 Lien of Holder of Tax Certificate.\\nWhether, in view of the fact that he acquired his tax-sale certificate before he owed the mortgagee any duty to protect the land from taxes and tax sales, equity would not keep it alive, as a lien superior to plaintiff\\u2019s mortgage, for the amount required to redeem from the tax sale, qusere.\\nAppeal by defendants Lynott and Ballard from a judgment of the district court for St. Louis county in favor of plaintiff, entered in pursuance of the findings and order of Morris, J.\\nAfSrmed.\\nWilT\\u00c1am G. White, for appellants.\\nStanford <& Arbury and S. T. <& Wm. Harrison, for respondent.\\nReported in 66 N. W. 976.\", \"word_count\": \"1588\", \"char_count\": \"9257\", \"text\": \"MITCHELL, J.\\nIn February, 1889, the defendants McKenzie, as security for the payment of $1,200 and interest, executed to plaintiff a real-estate mortgage containing a covenant, among others, that the mortgagors would pay all taxes on the mortgaged premises. They failed to pay the taxes for 1889, and by reason of such default the premises were sold therefor in May, 1891, and bid in for the state. In April, 1898, one Speyers paid into the county treasury the amount for which the premises had been sold, together with all subsequent taxes, penalties, etc., and obtained from the county auditor an assignment of the interest of the state, as authorized by statute. In May, 1894, Speyers assigned the auditor's certificate to other parties, who, in turn, assigned it to defendant Lynott, in August, 1894. On November 26, 1894, the McKenzies, the mortgagors, for the consideration of $100, executed to defendant Lynott a quitclaim deed of the premises, under which he imruediately entered into, and still continues in, possession. It does not appear that this quitclaim deed contained any exceptions or covenants, or made any mention of either the mortgage, or the taxes on the land. Almost immediately after the execution of this quitclaim, Lynott caused notice to be given of the expiration of the time of redemption from the tax sale; the notice being served on the defendant Johanna McKenzie, in whose name the premises were assessed. No redemption was made, and, a few days after the expiration of the period for redemption, Lynott executed a mortgage to the defendant Ballard to secure payment of $2,000. All the conveyances and instruments above referred to were duly recorded in the order of their execution.\\nIn this suit to foreclose plaintiff's mortgage, the defendants Lynott and Ballard insist that it is no longer a lien on the premises, having been extinguished by the tax title. Ballard's rights as mortgagee are, of course, dependent upon Lynott's title; and the question is whether, under the circumstances, Lynott was in a position to acquire a tax title, so as to defeat plaintiff's mortgage.\\nThere are certain classes of persons, who, from their connection with the title to real estate, or in consequence of their relations to others having an interest in the property, are disqualified from purchasing the land at a tax sale. This rests, not on anything peculiar to the law of tax sales, but upon certain broad and general principles of equity, the fundamental one being that a person will not be permitted to acquire any right founded on his own default or neglect of duty. In supposed accordance with this principle, it had been frequently, if not generally, held that the owner in possession, and who therefore owed to the state the duty of paying the taxes, could not fortify his existing title, or acquire a better one, by allowing the land to be sold for taxes, and buying it at the sale. As this duty is one due only to the state, it is difficult to see why it is against equity to allow the owner of the land to acquire a tax title to it, as against one to whom he owes no such duty. This question has been set at rest by our statute, which provides that, \\\"if the owner purchase, the sale shall have the effect to pass to him every right, title and interest of any and every person, company or corporation, free from any claim, lien or incumbrance except such right, title, interest, lien or incumbrance as the owner so purchasing may be legally or equitably bound to protect against such sale or the taxes for which such sale was made.\\\" G-. S. 1894, \\u00a7 1599. While the owner, merely as such, is no longer disqualified from purchasing at a tax sale, the question whom and what interests he is legally or equitably bound to protect against taxes and tax sales remains to be determined by the same principles of equity as before the enactment of the statute.\\nWhether there are any circumstances under which the mortgagor can acquire a tax title, as against his mortgagee, it is not now necessary to consider, but it is elementary that he cannot acquire or build up a tax title upon a default in or breach of the conditions or covenants of his own mortgage. Allison v. Armstrong, 28 Minn. 276, 9 N. W. 806. Hence the McKenzies, who covenanted to pay the taxes, could not themselves have acquired a tax title, so as to defeat plaintiff's mortgage. It is equally well' settled that, where the mortgagor cannot do so, no one claiming under him can do it. His grantee will stand in no better position than the mortgagor himself. MacEwen v. Beard, 58 Minn. 176, 59 N. W. 942. The fact that he may not have expressly covenanted to pay the taxes, and may not be personally liable for their payment, would make no difference.\\nDefendants' counsel concede that, if Lynott's tax title had had its inception after he purchased from the mortgagors, the case last cited would be decisive of the present: but they seek to distin guish the cases, in that Lynott obtained an assignment of the auditor's certificate while he was still a stranger to the title of the mortgagors and mortgagee, and owed no duty to either to protect their interests against taxes and tax sales. Undoubtedly Lynott was at that time qualified to acquire a tax title, as against the plaintiff; and, if his relations to the parties and their title had remained unchanged, he could unquestionably have perfected his inchoate tax title, so as to extinguish plaintiff's mortgage. But the vital and pivotal fact in the case is that before the tax title had become absolute, and while certain steps remained to be taken to make it such, and while the auditor's certificate constituted a mere lien on the land, Lynott changed his relations to the title and to the plaintiff, by purchasing from, and going into possession under, the mortgagors. From that moment he became disqualified to acquire a tax title, as against the plaintiff. In accepting a quitclaim deed, he purchased the land subject to the existing lien for taxes. As between him and his grantors, the duty of paying these taxes devolved on him. By thus relieving the mortgagors from their payment he assumed the duty himself. If, at the time of this purchase, the tax-sale certificate had been outstanding in a third party, he could not, by purchasing it, have acquired a tax title, as against plaintiff. His purchase would, as to plaintiff, have been held to operate as a redemption. But there is no difference in principle between buying in an outstanding tax title, and perfecting an inchoate one which he already held. From the moment he became the grantee of the mortgagors, he became disqualified from acquiring any new or additional rights under any tax title. He was thereafter equitably bound to protect plaintiff's mortgage from taxes and tax sales.\\nWhether, in view of the fact that he acquired the tax certificate before he owed any such duty, equity would not keep it alive as a lien, superior to plaintiff's mortgage, for the amount required to redeem the land from the tax sale, is a question which has not been raised or discussed, and which we therefore do not consider. But, after defendants' purchase from the mortgagors, he could acquire no new or additional rights, as against the plaintiff.\\nJudgment affirmed.\"}"

minn/1701699.json

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+"{\"id\": \"1701699\", \"name\": \"EMMA HUMPHREYS v. GEORGE H. SHELLENBERGER\", \"name_abbreviation\": \"Humphreys v. Shellenberger\", \"decision_date\": \"1903-05-22\", \"docket_number\": \"Nos. 13,389\\u2014(94)\", \"first_page\": \"327\", \"last_page\": \"330\", \"citations\": \"89 Minn. 327\", \"volume\": \"89\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:06:59.582133+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EMMA HUMPHREYS v. GEORGE H. SHELLENBERGER.\", \"head_matter\": \"EMMA HUMPHREYS v. GEORGE H. SHELLENBERGER.\\nMay 22, 1903.\\nNos. 13,389\\u2014(94).\\nYalue of Land.\\nWhere it becomes necessary to establish the value of land in an action for failure to convey, and the value has been estimated by parcels in the terms of a contract, such estimation is prima facie evidence thereof, and sufficient to support a finding based thereon in the absence of other proof.\\nEvidence \\u2014 Written Contract.\\nEvidence in this case considered, and held, that it reasonably tends to support the findings of the trial court to the effect that a written contract expressed .the intention of the parties, and that there was no material omission therein through mutual mistake.\\nReformation of Instrument.\\nHeld, further, that the findings of the court are sufficiently sustained by the evidence to justify the conclusions of law that the relief asked in defendant\\u2019s counterclaim seeking a reformation of a written agreement was properly denied, and that plaintiff was entitled to the damages claimed in the complaint.\\nAppeal by defendant from an order of tbe district court for Ramsey county, Nelly, J., denying a motion for a new trial.\\nAffirmed.\\nShellenberger & Bryan, for appellant.\\nKeith, Evans, Thompson & Fairchild, for respondent.\\nReported in 94 N. W. 1083.\", \"word_count\": \"1104\", \"char_count\": \"6445\", \"text\": \"LOYELY, J.\\nAction to recover damages for the alleged failure of defendant to fully execute a contract to convey real estate. The cause was tried to the court, who made findings and ordered judgment for the plaintiff for the amount claimed in the complaint. A new trial was refused, and defendant appeals. ,\\nThe complaint substantially shows that, under a written contract executed by both parties, the plaintiff, for the sum of $15,000, was to convey to defendant by deed of warranty within fifteen days thereafter a number of parcels of land in Anoka county. Defendant agreed to pay plaintiff $1,000 in cash at the time of the delivery of the deed, also to convey to her certain parcels of land in Norman county and lands in North Dakota at an estimated price per acre, with the further choice of other lands described in the contract, at the option and selection of the plaintiff, to be made within ten days from the date of the contract, to be accepted at a specified price named in the same, which, together with the Norman county land, would make up in the aggregate the sum of $14,000. Then follows a description of the lands from which the plaintiff might exercise her choice, with the estimated value thereof per acre.\\nPlaintiff performed her part of the contract, and made the deed of the Anoka county land to defendant. Defendant accepted the deed, and paid $1,000 in cash to plaintiff, conveying to her the Norman CQUiity land and land in North Dakota sufficient in all, with the cash received by her, to amount to $12,908.64 at the values stipulated, but declined to convey any other land because none of the pieces at the prices named in the contract could be made to correspond with any quarter or other governmental subdivision' at its agreed value as estimated in the contract for that purpose,, unless plaintiff would give a mortgage back for the excess. Plaintiff then demanded that defendant convey to her 72.7 acres by metes and bounds from one of the quarter sections which was designated as the subject of her choice in the contract, at the fixed value therein of $15 per acre, which would amount to the sum of $1,091.36, thus making up the sum agreed as the total value of the lands to be conveyed to plaintiff. Upon refusal to comply with this demand, plaintiff commenced this action.\\nDefendant admitted the contract, but set forth by way of counterclaim that through mistake of the parties a provision was omitted therefrom providing for the contingency that arose here, viz., the- necessity of subdividing a designated parcel of the lands named in the contract from which plaintiff might exercise her choice, if she demanded enough of it to make up the balance of. the $14,000, unless plaintiff would give security by first mortgage thereon for the difference between it and the value of the tract she desired, and asked for a reformation of the contract in that, respect, with a denial of other allegations in the complaint.. The new matter pleaded wa& denied, and the first material question before us on this review is whether there was such a mutual \\u2022mistake between the parties as required reformation of this agreement.\\nThe trial court, having heard the evidence to support these issues, made findings of fact to the effect that the allegations of the complaint were true, and that the allegations of fact upon which the claim for reformation of the contract had been based had not been sustained; holding, as a conclusion of law, that plaintiff was entitled to judgment for the sum of $1,090.50, with interest thereon.\\nA review of the evidence at the trial satisfies us that there was. no such clear and convincing proof of a mistake by the parties in the respect claimed by the defendant under the rules of law as required a reformation of the contract; hence this conclusion of law was not so palpably against the weight of evidence as to justify our interference in this respect.\\nIn the contract, which was pleaded in the complaint and admitted in the answer, the estimated value per acre of certain sections, of land and other government subdivisions was specifically designated and agreed to, which was the only proof at the trial of their value. It is contended by defendant that the court had no right to treat such estimation of values as evidence of the same, for the purpose of fixing the damages, which would, if so adopted, amount to the sum for which judgment was ordered, and which by the agreement defendant was bound to pay after having refused to. convey. It must be admitted that the damages in such a case-would be the value of the land plaintiff was entitled to select, and for which defendant refused a conveyance, and would be open to proof, yet in the absence of any other showing in that regard we-have no doubt that the court might treat the values fixed in the contract as competent evidence to establish the same prima facie;: and it follows, since the finding, by which such amount was estimated accurately, upon the agreed price per acre of the portion properly selected, was the only evidence of damages, it was sufficient for that purpose. Bennett v. Phelps, 12 Minn. 216 (326).\\nOrder of the trial court is affirmed.\"}"

minn/1720418.json

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+"{\"id\": \"1720418\", \"name\": \"GEORGE F. LONG v. CHARLES A. LONG and Others\", \"name_abbreviation\": \"Long v. Long\", \"decision_date\": \"1910-11-18\", \"docket_number\": \"Nos. 16,743\\u2014(58)\", \"first_page\": \"400\", \"last_page\": \"403\", \"citations\": \"112 Minn. 400\", \"volume\": \"112\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:21:55.254731+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE F. LONG v. CHARLES A. LONG and Others.\", \"head_matter\": \"GEORGE F. LONG v. CHARLES A. LONG and Others.\\nNovember 18, 1910.\\nNos. 16,743\\u2014(58).\\nVacating judgment \\u2014 application hy purchaser.\\nOne who, after a judgment against a defendant in an action to quiet title, purchases defendant\\u2019s title, succeeds to all his interest and rights,-and may properly apply for a vacation of the judgment.\\nSame.\\nIn such case the applicant\\u2019s rights are those the original defendant would have had, if the application had been made by him.\\nDefendant\\u2019s right to defend.\\nWhere judgment is entered by default upon substituted service of summons, a defendant is entitled as a matter of right to have the judgment opened and be allowed to defend upon application, if made within one year, unless by his laches he has lost such right.\\nReview of question of loss of right.\\nThe claim that defendant\\u2019s right has been bo lost is addressed to the discretion of the court in which the judgment was entered.\\n[Note] Who may have judgment against other parties set aside, see note in 54 L.R.A. 758.\\nAction in tbe district court for Itasca county to quiet title to certain land. Defendant Charles A. Long gave notice of motion, to be made on February 3, 1909, to open tbe judgment entered in tbe action and permit bim to appear and defend tbe action on tbe ground the summons was not personally served upon him; that he had no notice of the action and had a good and substantial defense. After the submission of the motion but before its determination, on November 5, 1909, L. W. Huntley obtained an order to show cause why he should not be allowed to appear and defend. The plaintiff moved that Charles A. Long and L. W. Huntley be compelled to elect whether they would proceed under the motion of Long or the application of Huntley, and the motion was denied, Wright, J. The judgment was vacated, L. W. Huntley was substituted in place of Long and permitted to- interpose his proposed answer. From this order, plaintiff appealed.\\nAffirmed.\\nSavage & Purdy, for appellant.\\nThwing '& Bossmwn, for respondents.\\nReported in 128 N. W. 464.\", \"word_count\": \"1068\", \"char_count\": \"6093\", \"text\": \"O'Brien, J.\\nPlaintiff brought this action to quiet title. The complaint was filed June 24, 1908. Defendant Charles A. Long was a nonresident, and service was made upon him by publication; the last publication September 17, 1908. Findings wei'e made and judgment in favor of plaintiff was entered November 5, 1908. During this time L. W. Huntley secured tbe address of defendant Charles A. Long and entered into negotiations with him for the purchase of his interest in certain portions of the land involved in the action. On December 2, 1908, Huntley wrote a letter to the plaintiff's attorneys which contained the following: \\\"I have just purchased of Charles A. Long certain lots in the Syndicate division of Grand Bapids, list attached, all or a major portion your client, Mr. George F. Long, purchased at November, 1907, tax sale. \\\" Then follows a suggestion for some settlement of their claims.\\nOn January 25, 1909, taking the date from one of the affidavits in the record, a motion in the name of defendant Long was made to open the judgment, and supported by his affidavit. The affidavit was dated December 23, 1908, and on the-same day defendant Long executed a deed to Huntley of his interest in the property. The motion does not appear to have been brought on for hearing, and on November 5, 1909, there was issued an order to show cause why Huntley should not be substituted for defendant Long, and the judgment opened, and he allowed to answer. The record shows that, at the time of the purchase by Huntley and the making of the affidavit by Long, they both had knowledge of the judgment. Upon the hearing of this order plaintiff moved that Huntley.he required to elect whether to proceed upon the motion of Charles A. Long or upon his present application. This motion was denied, and an order made vacating the judgment as to Charles A. Long, substituting L. W. Huntley as defendant in place of Long, 'and permitting him to answer.\\nIt is contended by plaintiff that Huntley was a stranger to the judgment and that the subsequent purchase by him of Long's interest in the land gave him no standing or right to apply for a vacation of the judgment, and that defendant Long, having parted with his title December 23, 1908, had no longer any interest in the subject-matter of the suit, and therefore could not be heard. Counsel has cited decisions of other states which support his position. Powell v. McDowell, 16 Neb. 424, 20 N. W. 271; Browne v. Palmer, 66 Neb. 287, 92 N. W. 315; Ward v. Montclair, 26 N. J. Eq. 260; 1 Freeman, Judgments, \\u00a7 91.\\nThis, however, is a question which involves the construction of the statutes of this state, and we think the question is foreclosed by the previous decisions of this court to the effect that one who purchases from the defendant in an action affecting the title to real property, after the entry of judgment against such defendant, acquires his interest and rights as they are, and may make an application under the statute to have the judgment opened, and, if the application is granted, defend upon the merits. Boeing v. McKinley, 44 Minn. 392, 46 N. W. 766; Kipp v. Clinger, 97 Minn. 135, 106 N. W. 108. In the Kipp case it was held that such purchaser occupied the same position as would the original defendant, had the application been made in his name.\\nWe have only, therefore, to consider what would have been defendant Long's rights, had no conveyance been made by him, and- had the application to vacate the judgment been made by him. If such had been the case, there can be no doubt that the order vacating the judgment would be sustained. The trial court expressed the opinion that under all the circumstances of the case proper diligence was shown.\\nUnder section 4113, R. L. 1905, the granting of such relief is a matter of right, unless it is shown that the applicant has been guilty of laches. The claim that laches were shown was addressed to the discretion of the court, and we feel we would not be justified in setting aside the finding upon that question.\\nOrder affirmed.\"}"

minn/1729717.json

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+"{\"id\": \"1729717\", \"name\": \"J. W. JENNISON AND OTHERS v. ALBERT F. PRIEM\", \"name_abbreviation\": \"Jennison v. Priem\", \"decision_date\": \"1938-03-23\", \"docket_number\": \"No. 31,750\", \"first_page\": \"338\", \"last_page\": \"342\", \"citations\": \"202 Minn. 338\", \"volume\": \"202\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:59:37.173031+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Gallagher and Mr. Justice Stone took no part in the consideration or decision of this case.\", \"parties\": \"J. W. JENNISON AND OTHERS v. ALBERT F. PRIEM.\", \"head_matter\": \"J. W. JENNISON AND OTHERS v. ALBERT F. PRIEM.\\nMarch 23, 1938.\\nNo. 31,750.\\nW. E. Eottmger, for appellant.\\nWilson \\u00e9 Bleihen> for respondents.\\nReported in 278 N. W. 517.\", \"word_count\": \"1444\", \"char_count\": \"8151\", \"text\": \"Julius J. Olson, Justice.\\nDefendant appeals from a judgment entered in an action brought by plaintiffs against him to recover possession of a farm near Man-kato under the provisions of the unlawful detainer statute.\\nIn the late summer of 1935 plaintiffs, owners of the farm, entered into a written lease with defendant whereby he leased it upon a cash rental basis for a term of five years commencing in November of that year. The farm was for sale by the owners. Accordingly, in preparing the lease, there was employed a printed form of lease, commonly used in this state, containing a sale clause, which, as far as here material, reads:\\n\\\"That if the said first party [owner] sells said premises during the life of this lease and before the crop is in the ground, and desires to give possession to the purchaser, that the second party will forthwith surrender possession of said leased premises upon the payment to him of $ no/100 per acre for each acre of said premises newly plowed by said second party at the time said possession is demanded; if sold after the crop is in, then said second party shall have the right to remove such crop when ready to be harvested.\\\" (Italics supplied.)\\nIn December, 1937, plaintiffs entered into a contract for the sale of the farm to one Timm. Defendant was immediately notified of the sale and possession demanded effective as of March 1, 1938, that being the date when the purchaser was to have possession. Defendant refused to surrender possession, hence this action was brought.\\nThe complaint is in the usual form. Its adequacy is not questioned. Defendant tendered the general issue of \\\"not guilty\\\" and further, \\\"That under the lease described in plaintiffs' complaint, defendant has sown a crop on said described premises and under said lease he has the right to harvest and remove said crop, and under the terms of said lease, to remain in possession thereof until such crops are harvested and removed.\\\"\\nThe trial developed that defendant had planted 23 acres of winter wheat in the fall of 1937 and had also done some plowing.\\nAs will be observed, the real issue raised relates to the effect to be given the sale clause in view of defendant's fall planting of winter wheat in 1937. His claim is that the clause was intended to and does mean that he Avas to have the right of possession of the entire farm if any part of it was sown to crop when the sale was made; that, by so interpreting it, the winter wheat having been soAvn in the fall of 1937, he cannot now be dispossessed and that the court erred holding otherwise. If this theory is correct the result logically follows that he can plant to crop during the present spring the remainder of the farm and, before that crop is removed, plant another Avinter wheat crop, and thus continue from year to year until the five-year rental period expires. Such result Avas obviously not the intent or purpose of the clause: \\\"if sold after the crop is in, then said second party shall have the right to remove such crop when ready to be harvested.\\\" The contract engagement is that in event of sale by the owners defendant \\\"will forthwith surrender possession,\\\" but with the right reserved to him \\\"to remove such crop when ready to be harvested.\\\" If the intention was what defendant now claims it to be the parties could readily have said that no sale could be made after the crop or any part of it Avas planted. But they did nothing of the kind. They went much further and in plain language said (neither fraud nor mistake is here claimed), if the land is sold \\\"after the crop is in\\\" defendant shall \\\"have the right to remove such crop.\\\"\\nThe meaning of the writing is plain. There is nothing uncertain about it. Hence extrinsic evidence, parol or otherwise (absent as we have seen fraud or mistake), was inadmissible, and the court properly refused to permit defendant to show that the words used had some other and different meaning than the writing itself portrays.\\nWe think this case is governed by Carlson v. Wenzel, 127 Minn. 460, 461, 149 N. W. 937. The sale clause there involved was in substance and effect the same as the one we have here. There the tenant had sown fall rye. The court said:\\n\\\"In Minnesota the usual cropping season is the spring season. Farm leases are made with reference to the spring crop. It cannot be held that the planting of the rye in the fall saved the defendant's right of possession for the purpose of planting the spring crop of the following season or his right of occupancy of the premises. The defendant does not lose his crop of rye. By the terms of the lease he has a right of removal and that carries with it whatever right of possession is necessary to make the removal effective.\\\"\\nDefendant relies upon Johnson v. Carlin, 115 Minn. 430, 132 N. W. 750. There the sale clause was much the same as here, but in the portion thereof relating to payment for land newly plowed there were left blank spaces with regard to whom the payment should be made as well as the amount to be paid therefor by the owner in event of sale. The tenant's possession was secure until \\\"payment to . of $........per acre\\\" was made. Clearly, the court was right in holding that this presented an ambiguity. In such cases, the court said (115 Minn. 132, 132 N. W. 751) : \\\"if the meaning of a writing, T)y itself, is affected by uncertainty, extrinsic evidence, parol or otherwise, is admissible to show the situation of the parties thereto at the time it was executed, \\\" (Italics supplied.) That case is unlike the present in that there are no blank spaces here. Instead, in the space regarding payment, \\\"no/100 dollars\\\" was inserted; hence the foundation for the claimed similarity of facts disappears. As the court appropriately said (115 Minn. 133,132 N. W. 752) : \\\"If the intention was to eliminate the proviso as to payment for plowing in case a demand was made for a surrender of the farm before the expiration of the term, the obvious and certain way to express such intention would have been to have continued the ink line through the whole of the condition.\\\"\\nThe defense here pleaded and the means adopted at the trial to sustain it establish that defendant relied upon what was contained in the written contract. No reformation was suggested, and no claim was made that he was attempting to vary the terms of the lease. He was \\\"trying to explain\\\" it. \\\"We claim there is an ambiguity in the contract and that under the parol evidence rule we have a right to explain an ambiguity \\\" Defendant's line of questioning in seeking to introduce Ms proof went \\\"to the intention of the parties\\\" under the contract.\\nDefendant, apparently in desperation, then sought to show by parol proof that at the time the contract was signed one of plaintiffs, at defendant's request, \\\"explained\\\" the meaning of this clause. The trouble with that claim is apparent. An oral \\\"explanation\\\" of that which is concededly within the terms of a written contract might well be made the means of effectively destroying that which is written, thereby destroying the rule itself. This cannot be done.\\nWe are not to be understood as going beyond what was held in Carlson v. Wenzel, 127 Minn. 460, 149 N. W. 937. If the tenant in the usual course of good husbandry has prepared the ground for crop and thereby commenced the cropping of the land for that reason (in our state \\\"the spring season\\\"), it might well be held that if a sale is then made by the owner, pursuant to such contract as we have here, the tenant cannot be dispossessed of the farm until the end of that cropping season. But that question is not before us, nor was it before the court in the cited case. The facts here presented are substantially the same as in the Carlson case, hence the same result must follow.\\nWe think the court correctly disposed of the case, and the judgment is affirmed.\\nMr. Chief Justice Gallagher and Mr. Justice Stone took no part in the consideration or decision of this case.\"}"

minn/1734004.json

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+"{\"id\": \"1734004\", \"name\": \"EDITH MARTY v. RICHARD NORDBY AND OTHERS\", \"name_abbreviation\": \"Marty v. Nordby\", \"decision_date\": \"1937-12-24\", \"docket_number\": \"No. 31,476\", \"first_page\": \"469\", \"last_page\": \"472\", \"citations\": \"201 Minn. 469\", \"volume\": \"201\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:24:03.531225+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EDITH MARTY v. RICHARD NORDBY AND OTHERS.\", \"head_matter\": \"EDITH MARTY v. RICHARD NORDBY AND OTHERS.\\nDecember 24, 1937.\\nNo. 31,476.\\nOppenheimer, Dickson, Hodgson, Brown & Donnelly, for appellants.\\nG. P. Mahoney, for respondent.\\nReported in 276 N. W. 739.\", \"word_count\": \"1100\", \"char_count\": \"6212\", \"text\": \"Peterson, Justice.\\nPlaintiff, as administratrix, recovered a verdict for $2,700 for her husband's wrongful death, which was caused by defendant George Swanson driving the automobile of the defendants Nordby and moving it to make room in an alley crowded with cars so he could pass Avith the truck of the defendants EAvald, of Avhich he was the driver. Plaintiff moved on the minutes for a new trial on the issue of dam-' ages only, upon the grounds that the damages were inadequate. Notice of the motion for neAv trial Avas served upon all defendants. The motion was granted, and there Avas no appeal therefrom. Then defendants Nordby moved for an order vacating the order granting plaintiff's motion for a new trial on the issue of damages only and for a neAv trial of all the issues on the grounds that the verdict is not justified by the evidence and is contrary to laAV, and error of law occurring at the trial. They appeal from the order denying their motion.\\nThe order denying defendants' motion below to vacate the order granting plaintiff's motion for a neAv trial on the issue of damages is not appealable. The statute, 3 Mason Minn. St. 1936 Supp. \\u00a7 9498(4), provides that an order granting a neAv trial is appealable if it is based exclusively on errors of law occurring at the trial, so stated by the court in its order or in a memorandum made part of the order. The order granting plaintiff's motion for new trial on the issue of damages does not come within the statute because it is not for error of law occurring at the trial. In the case of Roelofs v. Baber, 194 Minn. 166, 259 N. W. 808, We held that an order granting a new trial upon the ground of inadequate damages Avas not for errors of law occurring at the trial even if the trial court stated in a memorandum made part of the order that it was granted for errors of law occurring at the trial, and hence is not appealable. Reliance is placed upon Lundblad v. Erickson, 180 Minn. 185, 230 N. W. 473. That such an order is not appealable is definitely settled by Roelofs v. Baber, supra, against defendants' contention. An appeal does not lie from an order denying a motion to vacate a nonappealable order. 1 Dunnell, Minn. Dig. (2 ed. & Supps. 1932, 1934, 1937) \\u00a7 304; Davis v. Royce, 174 Minn. 611, 219 N. W. 928; Thompson v. C. & N. W. Ry. Co. 178 Minn. 232, 226 N. W. 700. Therefore, an appeal does not lie from the order denying defendants' motion to vacate the order made on plaintiff's motion.\\nThe statute authorizes an appeal from an order denying a motion for new trial. Defendants' appeal brings up only that part of the order denying their motion for new trial. A nonappealable order is not rendered appealable because it is coupled with an appealable order. An order appealable in part and nonappealable in part will present for revieAV only that part which is appealable. In such a case the nonappealable order or the part of the order which is nonappealable will be disregarded, and only the appeal from the appealable order or the part which is appealable Avill be considered. Schaedler v. New York L. Ins. Co. 201 Minn. 327, 276 N. W. 235; Nash v. Kirschoff, 161 Minn. 409, 201 N. W. 617; Worrlein v. Maier, 177 Minn. 474, 225 N. W. 399; Louis F. Dow Co. v. Bittner, 185 Minn. 499, 241 N. W. 569. The appeal, therefore, is good only as to that part of the order denying defendants' motion for new trial.\\nThe notice of motion, is for a neAv trial of all the issues upon the grounds (1) that the verdict Avas not justified by the evidence and is contrary to law and (2.) that the court erred in denying defendants' motion for a directed verdict in their favor. No other grounds for neAv trial are assigned. Only errors assigned beloAV can be considered on appeal from an order denying a motion for new trial. 1 Dunnell, Minn. Dig. (2 ed. & Supps. 1932, 1934, 1937) \\u00a7 395. The appeal from the order denying defendants' motion for new trial therefore does not present the question whether it was error for the court beloAV to grant plaintiff's motion for new trial on the issue of damages only.\\nThe only question raised by the appeal is whether defendants authorized Swanson to operate their automobile. Swanson was not their employe, and they could be held liable only if such consent was given. By L. 1933, c. 351, \\u00a7 4, 3 Mason Minn. St. 1936 Supp. \\u00a7 2720-104, the owner of an automobile is liable for injuries caused by the negligence of one operating his automobile upon a public street or highAvay with his permission. The alley is a public high way. Patterson-Stocking, Inc. v. Dunn Bros. Storage Warehouses, Inc. 201 Minn. 308, 276 N. W. 737; Miller v. J. A. Tyrholm & Co. Inc. 196 Minn. 438, 265 N. W. 324; Steinle v. Beckwith, 198 Minn. 424, 270 N. W. 139. The evidence whether defendants Nordby consented that Swanson could operate their automobile is conflicting. Plaintiff's evidence consisted of the testimony of Swanson himself, who said that he had such consent from Richard Nordby, Sr., given to him in the presence of Richard Nordby, Jr., who remained silent, and admissions made by Mr. Nordby to three other witnesses that he had given Swanson consent, and a written statement given to the insurance company on the day the accident occurred in which he stated in writing that he had given such consent. Swanson's statement is impeached by a statement which he gave the insurance company in which he stated that he requested consent from Nordby which the latter gave, but that he could not positively swear that Nordby expressly stated that he could move the car. Defendants' testimony consisted of denials that such consent was either requested by Swanson or given by either of the Nordbys. Nordby, Sr. was impeached by the statement which he gave his insurance company and by the statements which he made to plaintiff's witnesses which he first denied as a witness and which he later admitted, changing his testimony. The weight of this evidence was for the jury. It sustains the verdict.\\nThe order is affirmed.\"}"

minn/175055.json

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+"{\"id\": \"175055\", \"name\": \"CITY OF ST. PAUL v. OAKLAND CEMETERY ASSOCIATION\", \"name_abbreviation\": \"City of St. Paul v. Oakland Cemetery Ass'n\", \"decision_date\": \"1916-11-17\", \"docket_number\": \"Nos. 20,186\\u2014(83)\", \"first_page\": \"441\", \"last_page\": \"445\", \"citations\": \"134 Minn. 441\", \"volume\": \"134\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:04:19.564677+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITY OF ST. PAUL v. OAKLAND CEMETERY ASSOCIATION.\", \"head_matter\": \"CITY OF ST. PAUL v. OAKLAND CEMETERY ASSOCIATION.\\nNovember 17, 1916.\\nNos. 20,186\\u2014(83).\\nConstitution \\u2014 exemption of cemetery from local assessments.\\nSection 6286, G. S. 1913, exempting public cemetery associations from assessments for local improvements, does not contravene any constitutional provision.\\nNote. \\u2014 For authorities discussing tbe question of liability of cemeteries to assessment for local improvements, see notes in 35 L.R.A. 36; 44 L.R.A. (N.S.) 57.\\nApplication to the district court for Ramsey county for confirmation of an assessment for the construction of a sewer on Magnolia street in the city of St. Paul. Defendant in its answer set up that it was organized in the year 1853 by virtue of the laws of the territory of Minne sota for the purpose of holding lands exclusively for the purposes of a public cemetery, and was authorized by law to hold not exceeding 300 acres exclusively for such purposes; that it actually owned 100 acres and no more; that in State v. City of St. Paul, 36 Minn. 529, this court held that its lands are exempt from assessments for local improvements. The matter was tried before Michael, J., who denied the application. From an order denying a motion to set aside the decision, the city of St. Paul appealed.\\nAffirmed.\\nO. II. O\\u2019Neill and J. P. Kyle, for appellant.\\nLighiner & Young, for respondents.\\nReported in 159 N. W. 962.\", \"word_count\": \"1515\", \"char_count\": \"9179\", \"text\": \"Holt, J.\\nSection 6286, G. S. 1913, which provides that the lands of a cemetery association organized under the laws of this state \\\"shall be exempt from all public taxes and assessments,\\\" is attacked as unconstitutional on this appeal.\\nThe city contends that the Constitution specifies what property may be exempt from public burdens and the extent thereof, and that it is beyond the power of the legislature to add thereto. Section 1 of article 9 of the Constitution so far as pertinent to this case reads: \\\"The power of taxation shall never be surrendered, suspended or contracted away. Taxes shall be uniform upon the same class of subjects, and shall be levied and collected for public purposes, but public burying grounds, public school houses institutions of purely public charity shall be exempt from taxation Provided, that the legislature may authorize municipal corporations to levy and collect asssessments for local improvements upon property benefited thereby without regard to a cash valuation .\\\" Previous to the amendment of 1906 the subject matters of section 1 were found under three sections of the same article. In some respects the amendment of 1906 was a fundamental modification of the former three sections. But the exemption of public burying grounds and institutions of purely public charity remained as before. At the time of the adoption of this amended section 1 of article 9, this court had held that, in virtue of section 6286, G. S. 1913, cemetery associations were exempt from assessments for public improvements (State v. City of St. Paul, 36 Minn. 529, 32 N. W. 781); and had also decided that institutions of purely public charity were not exempt from like assessments. Washburn M. O. Asylum v. State, 73 Minn. 343, 76 N. W. 204. By not making any change in the wording of the exemption either for public burying grounds or for institutions of purely public charity, it is fair to assume that the people, when section 1 in its present form was adopted, were satisfied with the interpretation given by this court to the existing statutes and Constitution with regard to the exemption and nonexemption of these organizations from local assessments.\\nWe also think that public policy, from territorial times to the present day, has always favored the exemption of public burying grounds from taxes and assessments. Section 15, e. 37, p. 161, Laws 1851, was to that effect. This section, unless repugnant to the Constitution of 1857, was continued in force and effect by section 3 of the Schedule. Since the Constitution itself provided for an exemption of public burying grounds from general taxes, it is not easy to find a statute repugnant thereto where it grants a like exemption from local assessments. The construction of the statute (the same as section 6386, G. S. 1913) was before this court in State v. City of St. Paul, supra, and the word \\\"assessments,\\\" as used therein, was held to designate impositions made by municipalities for local improvements, as contradistinguished from funds raised for general revenue. It is true, the constitutionality of the statute was not directly challenged in that case. However, it was there held that the cemetery was exempt from local assessments. After that decision has now for nearly 30 years been recognized as established law, the statute supporting it should not be lightly brushed aside as unconstitutional. We think public policy, as well as the reluctance which courts should properly entertain against disturbing what has apparently been for a long time accepted as settled law, prohibit us from declaring the statute invalid at this late day.\\nBut, even unhampered by the foregoing considerations, it is by no means clear that any constitutional objections may be found to the statute. The proviso in section 1, article 9, recognizes a power in the legislature over the assessments for local improvements. This court has held that municipalities do not inherently possess the power to levy such assessment. \\\"The authority of municipalities to impose burdens of any character upon persons or property, is wholly statutory.\\\" Sewall v. City of St. Paul, 20 Minn. 459 (511). See also State v. City of Ely, 129 Minn. 40, 151 N. W. 545, Ann. Cas. 1916B, 189. Assessments for public improvements are based upon benefits conferred upon the property assessed, and cannot exceed such benefits. The legislature may prescribe how benefits shall be determined; and it would seem to follow that it may also determine whether or not a certain class of property will be benefited by local improvements. By the statute under consideration we may say, that the legislature determined that local improvements do not bestow, benefits upon public cemeteries, hence such property is exempt from assessments therefor.\\nAgain, it would appear to be in consonance with sound reasoning to say that the Constitution, by exempting certain property from general taxation, has invited rather than forbidden the legislature to exempt the same property from assessment for local improvements. The Constitution of Ohio provided that \\\"laws shall be passed taxing by uniform rule all real and personal property according to its true money value, but burying grounds may be exempted from taxation.\\\" No statute had been passed exempting cemeteries from the burden of local improvements, hence the court properly held the cemetery liable \\u00a3ot assessments in Lima v. Cemetery Assn. 42 Oh. St. 128, 51 Am. St. 807. But speaking of the bearing of the Constitution in this respect upon the authority of the legislature the court says: \\\"There is nothing then in the Constitution forbidding either the assessments of such property or its exemption from assessments.\\\" And decisions generally recognize the existence of statutory as well as constitutional exemptions. City Street Imp. Co. v. Regents of University, 153 Cal. 776, 96 Pac. 801, 18 L.R.A. (N.S.) 451.\\nAppellant cites cases holding cemetery associations liable for assessments of the character here in question: Bloomington Cemetery Assn. v. People, 139 Ill. 16, 28 N. E. 1076; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506; City of Baltimore v. Proprietors of Green Mt. Cemetery, 7 Md. 517; Mullins v. Mt. St. Mary's Cemetery Assn. 239 Mo. 681, 144 S. W. 109; Lima v. Cemetery Assn. supra, and others. In- these cases there was either a lack of express statutory exemption, or the exemption was from taxation merely which the court construed as not exempting from assessments, or else a construction was given to the word \\\"assessments\\\" in the exemption statute different from that given by this court in State v. City of St. Paul, supra. After the decision in Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506, the legislature of New York passed a statute specifically exempting cemeteries from assessments for local improvements. This statute was sustained in Buffalo Cemetery Assn. v. City of Buffalo, 118 N. Y. 61, 22 N. E. 962; Oakland Cemetery v. City of Yonkers, 63 App. Div. 448, 71 N. Y. Supp. 783 (affirmed in 182 N. Y. 564, 75 N. E. 1132); Matter of City of New York, 192 N. Y. 459, 85 N. E. 755.\\nThe learned court below denied the city the right ,to assess relator for benefits, on the ground that relator was incorporated prior to the adoption of the Constitution, so that Laws 1851, p. 161, c. 31, \\u00a7 15, became a part of its charter, and the exemption also covered land acquired subsequent to the adoption of the Constitution, whenever statutes were passed enlarging the quantity of land which a cemetery association may hold. This may also be correct; but we prefer to base our decision upon the constitutionality of the statute, thereby placing all public cemetery associations in the same class with respect to local assessments.\\nAffirmed.\"}"

minn/1758816.json

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+"{\"id\": \"1758816\", \"name\": \"THEODOSIA HASTINGS v. F. W. WOOLWORTH COMPANY, INC.\", \"name_abbreviation\": \"Hastings v. F. W. Woolworth Co.\", \"decision_date\": \"1933-10-06\", \"docket_number\": \"No. 29,382\", \"first_page\": \"523\", \"last_page\": \"525\", \"citations\": \"189 Minn. 523\", \"volume\": \"189\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:32:00.658062+00:00\", \"provenance\": \"CAP\", \"judges\": \"LORING, Justice, took no part.\", \"parties\": \"THEODOSIA HASTINGS v. F. W. WOOLWORTH COMPANY, INC.\", \"head_matter\": \"THEODOSIA HASTINGS v. F. W. WOOLWORTH COMPANY, INC.\\nOctober 6, 1933.\\nNo. 29,382.\\nSarah Gensler Schwarts, for appellant.\\nCobb, Hoke, Benson, Krause & Faegre and Bradshaw Mintener, for respondent.\\nReported in 250 N. W. 362.\", \"word_count\": \"635\", \"char_count\": \"3463\", \"text\": \"DIBELL, Justice.\\nAction to recover for personal injuries sustained by the plaintiff, a customer in the store of the defendant, through its negligence. The court directed a verdict for the defendant, pursuant to which judgment was entered. The plaintiff appeals from the judgment.\\nThere is no mystery in the law relative to the duty of a shopkeeper or merchant to his customers in his store. In Ober v. The Golden Rule, 146 Minn. 347, 178 N. W. 586, the rule is stated by Judge Lees in this way:\\n\\\"A shopkeeper is under legal obligation to keep and maintain his premises in reasonably safe condition for use as to all whom he expressly or impliedly invites to enter the premises.\\\"\\nThe merchant is not an insurer of the safety of his premises. Ordinary care in respect of them is owing his customers. It is hardly worth the time to discuss the cases. The following, though not parallel in their facts, are of illustrative value: Corrigan v. Elsinger, 81 Minn. 42, 83 N. W. 492; Albachten v. The Golden Rule, 135 Minn. 381, 160 N. W. 1012; Duffy v. Stratton, 169 Minn. 136, 210 N. W. 866; Landy v. Olson & Serley S. & D. Co. 171 Minn. 440, 214 N. W. 659; Poppleston v. Pantages M. T. Co. 175 Minn. 153, 220 N. W. 418; Tierney v. Graves Motor Co. 185 Minn. 114, 239 N. W. 905. The Minnesota cases are gathered in 4 Dunnell, Minn. Dig. (2 ed. & Supp.) \\u00a7 6984-6987. The cases over the country are col lected in a note in 33 A. L. R. 181-231; and in Am. Dig. Negligence, \\u00a7 32(1).\\nThe defendant operates a five-and-ten-cent store in Minneapolis. The plaintiff .claims that when she was in the store, walking in an aisle, she stepped on a waxy paper, that the floor was slippery, that the heel of one of her shoes caught in a small hole in the floor, causing her to fall, and that her ankle was wrenched. She sustained an injury. On the present record it cannot be said that the presence of the paper or the slipperiness of the floor was ascribable to the negligence of the defendant. At the most they were conditions or circumstances attending the injury and in no sense the sole cause of it. It could be found by a jury that the hole in the floor was the result of the defendant's negligence and that its negligence in this respect was a proximate cause of the injury.\\nThere is evidence that the hole to which the plaintiff testified, when it was examined the next day, did not appear to be a fresh one. Just its nature is not shown. It was large enough to admit the heel of a shoe. It is true that the testimony offered by the plaintiff as to its condition the next day did not certainly identify it as the one which caused the injury; but there was some evidence that it was. The issue of negligence was for the jury, and a verdict should not have been directed for the defendant.\\nWe note that the motion to direct a verdict was made when the plaintiff rested. The defendant did not rest; nor did it offer testimony. The fact is not important now, but we mention it so that it may be understood that it was not overlooked. See 6 Dunnell, Minn. Dig. (2 ed. & Supp.) \\u00a7 9765, 9766.\\nThe judgment is reversed with directions to grant a new trial.\\nJudgment reversed.\"}"

minn/182523.json

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+"{\"id\": \"182523\", \"name\": \"IN RE GUARDIANSHIP OF ALBERT R. WOLFF. ALBERT R. WOLFF v. ELSIE LERUM\", \"name_abbreviation\": \"Wolff v. Lerum\", \"decision_date\": \"1950-10-27\", \"docket_number\": \"No. 35,323\", \"first_page\": \"144\", \"last_page\": \"148\", \"citations\": \"232 Minn. 144\", \"volume\": \"232\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:09:05.381712+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN RE GUARDIANSHIP OF ALBERT R. WOLFF. ALBERT R. WOLFF v. ELSIE LERUM.\", \"head_matter\": \"IN RE GUARDIANSHIP OF ALBERT R. WOLFF. ALBERT R. WOLFF v. ELSIE LERUM.\\nOctober 27, 1950.\\nNo. 35,323.\\nEdward A. Nierengarten and J. E. Hendrickson, for appellant.\\nLauerman & Pfeiffer, for respondent.\\nReported in 44 N. W. (2d) 465.\", \"word_count\": \"1300\", \"char_count\": \"7372\", \"text\": \"Knutson, Justice.\\nOn the petition of Elsie Lerum, respondent here, the probate court of Renville county made and filed its order on December 30, 1948, appointing one Paul Kolbe as guardian of the estate of Albert R. Wolff. Respondent is a daughter of Albert R. Wolff. An appeal was taken to the district court, and the decision of the probate court was affirmed. The case is here on appeal from an order of the district court denying appellant's motion for amended findings or a new trial. The only question raised by the appeal is the sufficiency of the evidence to warrant the appointment of a guardian for Mr. Wolff as an incompetent.\\nM. S. A. 525.54, so far as here material, provides that the probate court may appoint a guardian of the person or estate, or both, of any person \\\"who because of old age, or imperfection or deterioration of mentality is incompetent to manage his person or estate.\\\"\\nAt the time of the appointment of the guardian Mr. Wolff was 80 years of age. His first wife died on December 24, 1947. They had been happily married for 57 years and during that time had accumulated considerable property by their industry and thrift, including a 200-acre farm estimated to be worth some 830,000. By this marriage they had three children, the daughter, Elsie, now Mrs. Lerum, a son Allen, and a son, Herbert, who died. The relationship between the father and the mother and Elsie was ideal. Allen apparently had not been so fortunate, but had trouble domestically as well as financially. As a consequence of his domestic trouble, it appears that the Lerums had cared for Allen's daughter, Barbara, since she was a baby, she being some 10 or 11 years of age at the time of the trial. Prior to the death of the first Mrs. Wolff, she and her husband had executed joint wills, stated to be irrevocable, in which they had provided for Elsie and, out of Allen's share of the estate, had provided that Elsie should be paid for taking care of Barbara. It was also understood between them that when the first of the parents died the survivor would go to live with Elsie.\\nWhen Mrs. Wolff died Mr. Wolff chose to stay on the farm. With the help of Elsie, he procured a number of housekeepers between December 1947 and July 1948. On July 15, 1948, Mrs. Percival appeared on the scene as the new housekeeper, and almost immediately things began to change. Mr. Wolff's attitude toward Elsie became cool and distant. Although he admitted that she had always been honest and truthful, he now accused her of stealing his silverware. Mrs. Percival, within a matter of days, knew about the joint will that had been executed by Mr. Wolff and his former wife and the joint disposition they had made of their property, and she criticized the provisions of this will as silly. Mr. Wolff's attitude toward Barbara also changed. Prior to the appearance of Mrs. Percival he had manifested the kindliest of affection toward Barbara. He now became cold and did not care to see either Elsie or his granddaughter. Believing that Mrs. Percival was exercising complete domination over her father, Elsie petitioned for the appointment of a guardian. Mr. Wolff thereafter went to see Elsie at her home in Minneapolis to talk the matter over with her, and it was then arranged that Elsie and her husband would go to the farm the following Thursday to discuss the matter further. They drove to the farm, but when they arrived there they found no one at home and, instead, found a note from tlie father on each door stating that he would not be at home that day or the next and that he would see Elsie in court on Saturday. On October 21, 1948, while the matter was pending- in probate court, Mrs. Percival became Mrs. Wolff by marriage. Prior to coming to keep house for Mr. Wolff in July, she was a complete stranger.\\nThere is no evidence that Mr. Wolff squandered his money or his property. Up to the time of the appointment of the guardian, he had always taken care of his routine business and had managed and looked after his farm and his other affairs. He apparently was in good health for a man of his age.\\nThe appointment of a guardian over a person who, because of old age or other mental imperfections, is unable to manage his own affairs is intended for the purpose of protecting the person or estate of such ward, not for the purpose of depriving Mm of the right to manage his own affairs. It is always difficult to determine when it has become necessary to provide such protection for an aged person who has shown no disposition to squander his estate. It is, however, largely a question of fact based upon the opinion of the trier of facts before whom the proceeding comes, Parrish v. Peoples, 214 Minn. 589, 9 N. W. (2d) 225, and we should not disturb such finding on appeal unless it is obvious that there is no evidence reasonably tending to support it. In re Restoration to Capacity of Masters, 216 Minn. 553, 13 N. W. (2d) 487; In re Guardianship of Hudson, 220 Minn. 493, 20 N. W. (2d) 330.\\nUnder our statute, the ultimate test is incompetence to manage his person or estate. In Keiser v. Keiser, 113 Neb. 645, 204 N. W. 394, the facts are quite similar to those we now have before us. The statute in Nebraska appears to be more restrictive than ours. On an appeal from the appointment of a guardian in that case, the Nebraska court said (113 Neb. 651, 204 N. W. 396):\\n\\\"The descriptive words, 'mentally incompetent,' 'incompetent,' and 'incapable,' as used in sections 1589, 1590, Comp. St. 1922, mean any one who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause or causes, unable or incapable, unassisted, of properly taking care of himself or managing his property, and by reason thereof would be liable to be deceived or imposed upon by artful or designing persons. Mental incompetency or incapacity is established when there is found to exist an essential privation of reasoning faculties, or when a person is incapable of understanding and acting with discretion in the ordinary affairs of life. Where a person has insufficient mental capacity for the just protection of his property and his mental condition is such that he is guided by the will of others instead of his own in its disposition, a guardian should be appointed.\\\"\\nThe above statement is applicable to the facts in the instant case. Taking the evidence most favorable to the prevailing party, as we must on appeal, we are convinced that the trial court was fully justified in coming to the conclusion that Mr. Wolff was so completely under the dominating influence of his new wife that the appointment of a guardian was necessary in order to preserve his estate.\\nOn the petition of appellant in the above matter, we issued our alternative writ of prohibition, which was returnable on August 11, 1950, restraining the district court from proceeding herein subsequent to the appeal. The matters set forth in the petition for a writ of prohibition having now become moot, the writ is hereby quashed without costs or disbursements to either party insofar as the petition for a writ of prohibition is concerned.\\nOrder affirmed.\"}"

minn/191396.json

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+"{\"id\": \"191396\", \"name\": \"STATE BANK OF WILLOW RIVER v. PAUL PANGERL AND OTHERS\", \"name_abbreviation\": \"State Bank v. Pangerl\", \"decision_date\": \"1917-12-14\", \"docket_number\": \"No. 20,576\", \"first_page\": \"19\", \"last_page\": \"21\", \"citations\": \"139 Minn. 19\", \"volume\": \"139\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:36:34.865019+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE BANK OF WILLOW RIVER v. PAUL PANGERL AND OTHERS.\", \"head_matter\": \"STATE BANK OF WILLOW RIVER v. PAUL PANGERL AND OTHERS.\\nDecember 14, 1917.\\nNo. 20,576.\\nBills and notes \\u2014 liability of accommodation indorser.\\n1. In an action on a promissory note made by defendant makers\\nat tbe request of tbe plaintiff bank to tbe defendant payee without consideration passing from him to them, and indorsed by the defendant payee to the plaintiff at its request and without consideration, the evidence is held to show as a matter of law that the indorsement was for the accommodation of the ' plaintiff'\\u25a0 and it cannot recover thereon. '\\nSame \\u2014 parol evidence of want of consideration.\\n2. The rule that upon the transfer of a promissory note the effect of the payee\\u2019s indorsement cannot be varied by parol does not prevent the showing of want of consideration or that paper is accommodation.\\nAction in the district court for Pine county against Paul Pangerl, Marie Pangerl and E. C. Townsend, to recover $352 upon a promissory note. E. C. Townsend, in his separate answer, alleged that there was no consideration for the note as between himself and the other defendants and no consideration for the indorsement to plaintiff, which facts were known to plaintiff, and that the note was procured by the cashier of plaintiff, acting for plaintiff, and was indorsed by defendant at his request, without consideration, and upon the express agreement that the answering defendant should not be held liable thereon. The case was tried before Nethaway, J., who made findings and ordered judg ment for the amount demanded. From the judgment entered pursuant to the order for judgment, E. C. Townsend appealed. Reversed.\\nWilliam M. Lamson, for appellant.\\nOttocar Sobotha, for respondent.\\nReported in 165 N. W. 479.\", \"word_count\": \"967\", \"char_count\": \"5520\", \"text\": \"Dibell, C.\\nThis is an action by the State Bank of Willow River against Paul Pangerl, Marie Pangerl, his wife, and E. C. Townsend upon a promissory note. There were findings and judgment for the plaintiff. The defendant Townsend appeals. The defendants Pangerl did not answer and have no defense..\\nOn October 7, 1912, the Pangerls made a note to the plaintiff bank for $1,178.60 due in six months. On March 27, 1913, the Pangerls made to Townsend a note for $352. This note was indorsed by Townsend and is the one in suit. The facts attending its execution are about these: Peter Praxel was the cashier of the bank. A day or two before the making of the note he went to'Rutledge, a few miles from Willow River, where Townsend and the Pangerls lived. He arranged either with Townsend to get the Pangerls- to make a new note, or with Paul Pangerl personally. He later made out the note at the bank and sent it by mail to Townsend and the Pangerls signed it. Pangerl did not know that the note ran to Townsend. Townsend's explanation of his indorsement is that he had the note among some cheeks for deposit, that Praxel called in a few days and was to take the checks to the bank, and that in indorsing the checks he inadvertently indorsed the note. He then refused to deliver it until Praxel gave him what he calls a \\\"clearance.\\\" This was furnished a few days later in the form of a memorandum signed by Praxel agreeing to reimburse him if he had to pay the note and it was then delivered to Praxel for the bank and was credited upon the $1,178.60 note. The Pangerls got the benefit of it. Townsend got nothing. It was never a subsisting obligation between him and the Pangerls. He was on it as an accommodation either for the Pangerls or for the bank. The Pangerls never heard of his connection with it until suit brought. He was not accommodating them. The evidence is conclusive that Townsend indorsed and delivered the note at the request of Praxel and as an accommodation to the bank. Townsend says that Praxel suggested that this would avoid the necessity of getting a new note from the Pangerls. Whatever Praxel did in connection with the transaction was done for the bank. It was wholly a bank transaction. The giving of the so-called \\\"clearance\\\" was as much a bank act as the taking of the note. If Townsend had indorsed the note as an inducement to the bank to give the Pangerls an extension there would have been a consideration. This was not the arrangement. Why the bank wanted a note from the Pangerls for $352, or for any amount, is a matter of conjecture. Praxel was not a witness. Prom the statements of counsel at the trial we take it that he is not available. Perhaps he could explain the transaction. Townsend's explanation is not very satisfactory and all of the transaction has not been explained. Upon the evidence before us the controlling fact is that Townsend's indorsement was for the bank's accommodation. He is not liable to the bank upon it.\\nEvidence of a parol contemporaneous agreement varying the effect of an- indorsement made upon the sale and transfer of a promissory note is- inadmissible. Giltner v. Quirk, 131 Minn. 472, 155 N. W. 760, and cases cited; 1 Dunnell, Minn. Dig. \\u00a7 3368. Knoblauch v. Foglesong, 38 Minn. 352, 37 N. W. 586, is a leading case. This rule does not trench upon the equally well settled one that want of consideration and that paper was given for accommodation may be shown by parol. These two, the accommodation character of paper and want of consideration, are inseparably connected and may be shown by parol. 1 Dunnell, Minn. Dig. \\u00a7 977, 3373; National Citizens Bank of Mankato v. Bowen, 109 Minn. 473, 124 N. W. 241; Shalleck v. Munzer, 121 Minn. 65, 140 N. W. 111; Kragnes v. Kragnes, 125 Minn. 115, 145 N. W. 785.\\nJudgment reversed.\"}"

minn/206175.json

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+"{\"id\": \"206175\", \"name\": \"JOHN MANN and Others v. EMPLOYERS LIABILITY ASSURANCE CORPORATION\", \"name_abbreviation\": \"Mann v. Employers Liability Assurance Corp.\", \"decision_date\": \"1913-11-07\", \"docket_number\": \"Nos. 18,205\\u2014(34)\", \"first_page\": \"305\", \"last_page\": \"308\", \"citations\": \"123 Minn. 305\", \"volume\": \"123\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:34:56.822331+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN MANN and Others v. EMPLOYERS LIABILITY ASSURANCE CORPORATION.\", \"head_matter\": \"JOHN MANN and Others v. EMPLOYERS LIABILITY ASSURANCE CORPORATION.\\nNovember 7, 1913.\\nNos. 18,205 \\u2014 (34).\\nEstoppel and waiver.\\n1. Plaintiffs in an action upon an employers\\u2019 liability insurance policy held, precluded by their conduct from asserting that defendant was estopped or had waived its right to defend on the ground that the loss was not covered by the terms of the policy.\\nDirected verdict.\\n2. Direction of verdict for defendant held proper.\\nAction in the district court for Ramsey county to recover $3,-114.15', under defendant\\u2019s policy of insurance. Among other matters the answer alleged that it was agreed between these plaintiffs and defendant that defendant might appear, through its attorney, for plaintiffs and defend the action for them without prejudice to the rights of defendant to deny any and all liability upon its part to plaintiffs under said policy of insurance. The case was tried before Brill, J., who granted defendant\\u2019s motion for a directed verdict. Erom an order denying plaintiffs\\u2019 motion for a new trial, they appealed.\\nAffirmed.\\nC. D. O\\u2019Brien, F. G. Ingersoll and M. J. Doherty, for appellants.\\nButler & Mitchell, for respondent.\\nReported in 143 N. W. 794.\", \"word_count\": \"1077\", \"char_count\": \"6640\", \"text\": \"Philip E. Brown, J.\\nAction on an employers' liability insurance policy issued by defendant to plaintiffs as copartners, to recover the amount of a judgment rendered against them for the death of an employee.\\nPlaintiffs gave defendant immediate notice of the accident, and thereupon defendant investigated and became conversant with all the facts. Thereafter, on November 2, 1910, the action was commenced, \\u2022which resulted in judgment against plaintiffs and, they having immediately transmitted the summons and complaint to defendant company, its attorney took charge of the case, interposed an answer, and subsequently conducted the defense on the trial, which terminated in a verdict for plaintiffs therein. An appeal to this court, with defendant's attorney as counsel, followed and resulted in a reversal, defendant paying the costs, and upon retrial in the district court, the same attorney acting as before, plaintiff therein prevailed and these plaintiffs were compelled to pay the judgment. About a year after the bringing of the action plaintiffs dissolved partnership, but plaintiff IVlann continued to represent them in the matter of the litigation. Defendant claimed that 41 days after the action was commenced, and more than six weeks before the first trial, it notified plaintiffs that their policy did not cover certain specifically excepted risks, and if judgment was awarded against them, upon a liability within the exceptions mentioned, it would not be responsible therefor, and advised them that such notice was given so they could be in a position to thoroughly protect their interests. Defendant further claimed that plaintiffs then consented to its conducting the litigation with the understanding that, if damages were awarded upon facts bringing the accident within the exceptions of the policy, defendant company would not be liable to reimburse them, and all subsequent acts of defendant in connection with the litigation were pursuant thereto. The recovery against plaintiffs proved to be within the exceptions, and the court, holding defendant's claims established, directed a verdict in its favor. Plaintiffs appealed from an order denying a new trial.\\nWe must start with the proposition that there was no express contractual liability on defendant's part to pay plaintiffs any sum under the policy because of the judgment obtained against them. Consequently the burden rested on plaintiffs to establish a state of facts from which a liability might be implied by law. There are numerous cases holding that where an insurance company takes up the defense of an action, knowing the facts bring it within a risk exception, and, under the general agreements of the policy authorizing it to control litigation, conducts the case to the end, and nothing fur ther appears, it will be deemed precluded, by way of either estoppel or waiver, from taking a position inconsistent with the one previously assumed and denying liability. Empire State Surety Co. v. Pacific Nat. Lumber Co. 118 C. C. A. 410, 200 Fed. 224; Employers' Liability Ass. Corp. v. Chicago & B. M. Coal & C. Co. 73 C. C. A. 278, 141 Fed. 962; Boyle Mining Co. v. Fidelity & C. Co. 126 Mo. App. 104, 103 S. W. 1098. So also, under like circumstances, the company has been held estopped where it conducted the defense down to the trial and then withdrew, leaving assured no reasonable opportunity to prepare his own defense. Glens Falls P. C. Co. v. Traveler's Ins. Co. 162 N. J. 399, 56 N. E. 897. And our decisions are in line with the general holding. Tozer v. Ocean Accident G. Corp. 94 Minn. 478, 103 N. W. 509, 99 Minn. 290, 109 N. W. 410, If, however, the trial court's conclusion upon defendant's contentions is sustainable in point of fact, which we will consider later, the cases cited are clearly distinguishable from the present one; for plaintiffs' assent to the status assumed by defendant with regard to the litigar tion by the notice of nonliability referred to and thereafter, when measured by the same legal standard of responsibility for acts indicated by the grounds of the decisions cited and which they seek to apply as against defendant, would equally estop them from doing the identical thing which they deny defendant's right to do, namely, repudiation of the effect of conduct. The doctrine of equitable estoppel prevents this, and in effect we have an estoppel against an alleged estoppel, which sets the matter at large. Tappan v. Huntington, 97 Minn. 31, 106 N. W. 98; 16 Cyc. 748. Plaintiffs are thus relegated to the provisions of the policy, which concededly give no right of recovery. Nor is this result affected by the dissolution of the partnership.\\nDoes the evidence sustain the court's position upon the facts ? We hold it does, for after an attentive consideration of the record we are satisfied that no other conclusion could fairly be reached. Plaintiffs' claims rest substantially upon the testimony of a single witness, whose recollection of the transactions involved was so vague and his accounts thereof so contradictory as to be of slight probative value except as corroborative of defendant's version. His claim that be did not understand defendant's repudiation of liability bas not been overlooked, but cannot be sustained in view of tbe fact that be was conversant witb our language and experienced in business. Taken as a whole tbe evidence was insufficient to warrant a verdict for plaintiffs.\\nOrder affirmed.\"}"

minn/219883.json

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+"{\"id\": \"219883\", \"name\": \"STATE EX REL. J. H. BUTTERS v. WILBUR ELSTON AND OTHERS, AS STATE CIVIL SERVICE BOARD\", \"name_abbreviation\": \"State ex rel. Butters v. Elston\", \"decision_date\": \"1943-01-22\", \"docket_number\": \"No. 33,247\", \"first_page\": \"205\", \"last_page\": \"212\", \"citations\": \"214 Minn. 205\", \"volume\": \"214\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:34:46.228957+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE EX REL. J. H. BUTTERS v. WILBUR ELSTON AND OTHERS, AS STATE CIVIL SERVICE BOARD.\", \"head_matter\": \"STATE EX REL. J. H. BUTTERS v. WILBUR ELSTON AND OTHERS, AS STATE CIVIL SERVICE BOARD.\\nJanuary 22, 1943.\\nNo. 33,247.\\nSee 209 Minn. 530, 296 N. W. 906.\\nBriggs & Briggs and John D. Jenswold, for appellant.\\nJ. A. A. Burnquist, Attorney General, and John A. Weeks and George B. Sjoselius, Assistant Attorneys General, for respondents.\\nReported in 7 N. W. (2d) 750.\", \"word_count\": \"2044\", \"char_count\": \"11749\", \"text\": \"Julius J. Olson, Justice.\\nThis is an appeal by J. H. Butters from an order of the district court of Ramsey county discharging a writ of certiorari and af firming \\\"the decision and order of respondents as the State Civil Service Board whereby it was declared that relator [Butters] had no status under the State Civil Service Act and denied\\\" his application to have such status determined.\\nAppellant's case has been here before, although upon a different theory. State ex rel. Butters v. Railroad & Warehouse Comm. 209 Minn. 580, 296 N. W. 906, where the facts necessary to that decision are found at page 532. We there reversed the order of the district court of St. Louis county denying the motion of the commission for a new trial after findings had been made granting Butters (relator in that proceeding) the right of reinstatement to his former employment. The conclusion there reached was that (209 Minn. 534, 296 N. W. 908):\\n\\\"Relator's rights under the veterans preference law are gone. He was deprived of them by the civil service law. Whether he is now entitled to a 'permanent classified civil service status' as provided by \\u00a7 38 of the state civil service act is not for us to determine. To that question, this decision is without prejudice.\\\"\\nSome additional facts should now be stated. After the decision in the former case had been made and pursuant to the suggestion quoted above, appellant brought this proceeding, which is an application for a declaration of his status under the civil service act. L. 1939, c. 441. He avers the facts in respect to his military service in World War I; his honorable discharge as a veteran; that he was employed by the railroad and warehouse commission; that he was removed on December 31, 1938, \\\"without charges being preferred against him, without hearing, and without opportunity given to be heard\\\"; that in the department where he was employed other men \\\"not honorably discharged veterans of past wars\\\" continued to be employed and that these men \\\"are performing the same or similar work and duties to those performed by petitioner before his said removal.\\\" Lengthy reference is made to our prior decision and to the findings made by the district court in that case. His prayer for relief is that the civil service board cause \\\"an investigation to be made, and hear and determine the matters presented hereby, and determine petitioner's permanent classified civil service status in accordance with the facts and his claims\\\" as stated in his application, and that he \\\"be given an opportunity to present\\\" these to the board.\\nThe board, without ordering or having any hearing upon his application, certified in its return to the district court in the instant proceeding that it had \\\"considered the application for declaration of status submitted on behalf of J. H. Butters\\\"; that the members of the board had discussed his request and had concluded that, as they construed the holding in the Kane case (State ex rel. Kane v. Stassen, 208 Minn. 523, 294 N. W. 647), the board was not possessed of \\\"power to grant permanent civil service status to veterans other than those included in the sections of the act\\\" to which they refer, namely, \\u00a738 and 34(3). Lack of power to consider his application in the instant case is apparently founded upon the theory that, since the act took effect April 22, 1939, some four months subsequent to appellant's discharge, therefore he was not one of those \\\"holding offices or employments in the classified service on the effective date of this act.\\\" L. 1939, c. 441, \\u00a7 34(3), Minn. St. 1941, \\u00a7 43.01, subd. 4 (Mason St. 1940 Supp. \\u00a7 254-82[3]). If that theory is right Mr. Butters is left without a remedy.\\nAs we pointed out in the Kane case, 208 Minn. 527, 294 N. W. 649:\\n\\\"Belator [whose rights were the same as those of the present appellant] is not without right, however. If he was wrongfully discharged, he must show it. Our only concern is relator's present position, assuming his discharge was wrongful.\\n\\\"As a state employe relator did not have a vested right in his employment. Veterans, like others, could have been deprived of their positions by legislative abolition, and even if this were done after January 31, 1939, there would be no cause for relator to complain. But the fact cannot be escaped that by the civil service law the veteranas employment was expressly recognized and pre served by granting a permanent civil service status without a probationary period. Had relator not been discharged he would have been blanketed into the civil service on April 22, 1989, by virtue of \\u00a7 254-86. By the simplest concept of justice, he is entitled to be placed in the same position as he would have been had he not been discharged improperly. Despite his lack of vested right in his employment, after January 31, 1939, he had an accrued right to contest the discharge. We find nothing in the civil service law which indicates that the preference act was to be a nullity prior to the effective date of the civil service law or that rights accrued under it were to be annihilated by the repeal.\\\"\\nThe conclusion there reached was that (208 Minn. 528, 294 N. W. 649):\\n\\\"The proper procedure is to make application to the state civil service board for a declaration of status. We do not pass upon the merits in any respect.\\\"\\nIn their brief respondents emphasize that \\\"The Issue\\\" to be decided depends upon the answer to be made to their question: \\\"Can the civil service board grant status to a person who was not in the employ of the state on April 22, 1939, the effective date of the act?\\\" To that question, they of course think that only a negative answer is possible, pointing to \\u00a7 10 of the act as authority for their answer. As to \\u00a7 38, they say that this \\\"also limits the granting of status to those who are employed on the effective date of the act.\\\" They argue that \\\"nowhere in the act is there any provision authorizing the granting of status to any person\\\" situated as was appellant.\\nWhat we said in the Kane case respondents have either overlooked or entirely ignored. In this situation, it may be well again to refer to that case for additional light. In addition to what has been quoted, we there distinctly referred to several sections of the act (208 Minn. 528, 294 N. W. 650) as \\\"comprehensive grants\\\" of power given to the director and the civil service board in matters of this kind; and the opinion significantly concludes: \\\"In addition, the civil service hoard, by the very nature of its purpose and function, has the power to determine the status of an individual claiming to be entitled to a permanent civil service status.\\\"\\nAs we have seen, what this court was discussing in that case was Kane's \\\"present position, assuming his discharge was wrongful.\\\" This vital question was never considered by the board in this proceeding. It washed its hands by saying that it was without authority to act. Its reason obviously is founded upon the theory that, since the employe was not on the state's payroll, therefore he was not an employe. But being on the payroll is not the decisive factor. Bather, and only, the precise question is whether he was in fact a de jure employe on the determinative date. His claim is that he was unlawfully discharged and for that reason his employment continued unabated and uninterrupted. He has consistently and persistently stuck to this claim. In his former case the trial court sustained him, but that result came to naught because the statute under which he there sought relief had been superseded by the civil service act. State ex rel. Butters v. Railroad & Warehouse Comm. 209 Minn. 530, 296 N. W. 906.\\nWe think the Kane case, 208 Minn. 523, 527, 294 N. W. 647; Larsen v. City of St. Paul, 83 Minn. 473, 86 N. W. 459; and Markus v. City of Duluth, 138 Minn. 225, 164 N. W. 906, sustain appellant's contentions. Helpful, too, are O'Donnell v. Liquor Control Comm. 288 Mich. 377, 284 N. W. 915, and Sullivan v. State Bd. of Tax Adm. 290 Mich. 664, 288 N. W. 300. In State ex rel. Tracy v. Levitan, 228 Wis. 136, 139, 279 N. W. 620, 622, the holding was:\\n\\\"The status of an accused person is that of an employee until the effective date of the discharge. While he continues in that status he may answer the charges, thus securing a hearing before he loses the economic security which is guaranteed by the civil-service law.\\\"\\nRespondents next suggest, as an alleged additional reason why we should not overturn its decision, that appellant \\\"never worked for the state as a regular or permanent employe in any capacity\\\"; that his regular term of employment \\\"terminated December 31, 1938,\\\" and hence that he is not in a position to complain. They say that they \\\"considered\\\" his present application and that this \\\"fully set forth all of the facts regarding his employment\\\"; that they had before them not only the facts stated in the petition but also \\\"had available the printed record in the case tried in District Court [of St. Louis county] which contained all available evidence regarding the facts concerning his employment.\\\" Therefore, so it is claimed, \\\"it was not necessary to take further testimony.\\\" Upon these facts and \\\"its own investigation,\\\" their conclusion was that Mr. \\\"Butters had no status under the civil service act.\\\" In respect to the findings made by the trial court of St. Louis county, since there was a reversal here, they say that that decision is no longer of any force; and, furthermore, they submit \\\"that the board would be in a better position and more qualified to determine this question than the District Court.\\\" The board may be right in its assertion of being \\\"in a better position and more qualified\\\" than are the courts in matters of this nature. But neither this court nor the district court may escape the legal duties going with judicial office. This case is but one of many of similar types having their source in some bureau or board. As yet, in this jurisdiction at least, courts are still functioning within their granted constitutional powers.\\nWe cannot agree that this belated additional reason for sustaining the board has any place or that it finds any support in the record. As we have already said, all that the trial court had before it was appellant's application and the board's return thereto. And that, too, is all we have. These two documents, and these alone, so the board certified, constitute \\\"all the records of the proceedings in the above entitled matter.\\\" (See record pp. 25 to 34, inclusive.)\\nOur scope of review in certiorari proceedings is limited to and determined by the record made by the officers whose action is sought to be reviewed. As an appellate court, we cannot make findings of fact or determine questions of fact. But appellant, as a party to this proceeding, \\\"has a right to have considered and determined all questions properly presented by the reeord.\\\" 1 Dun-nell, Dig. & Supp. \\u00a7 1402, and cases cited under note 67.\\nWe conclude that there was here a complete failure by the board to act upon appellant's application, and that its refusal to hear his claims, especially its failure to give him an opportunity to present his proof on the vital subject of his claimed wrongful discharge, cannot be ignored. Bights cannot be so thwarted.\\nOrder reversed and cause remanded for further proceedings in harmony with the views expressed in this opinion.\\nSo ordered.\"}"

minn/223232.json

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+"{\"id\": \"223232\", \"name\": \"STATE v. CONTINENTAL OIL COMPANY; STATE v. MID-CONTINENT PETROLEUM CORPORATION; STATE v. SINCLAIR REFINING COMPANY; STATE v. PHILLIPS PETROLEUM COMPANY; STATE v. SKELLY OIL COMPANY; STATE v. THE TEXAS COMPANY; STATE v. CITIES SERVICE OIL COMPANY; STATE v. BARECO OIL COMPANY\", \"name_abbreviation\": \"State v. Continental Oil Co.\", \"decision_date\": \"1944-07-14\", \"docket_number\": \"No. 33,607\", \"first_page\": \"123\", \"last_page\": \"148\", \"citations\": \"218 Minn. 123\", \"volume\": \"218\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:05:18.885759+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Streissguth took no part in- the consideration or decision of this case.\", \"parties\": \"STATE v. CONTINENTAL OIL COMPANY. STATE v. MID-CONTINENT PETROLEUM CORPORATION. STATE v. SINCLAIR REFINING COMPANY. STATE v. PHILLIPS PETROLEUM COMPANY. STATE v. SKELLY OIL COMPANY. STATE v. THE TEXAS COMPANY. STATE v. CITIES SERVICE OIL COMPANY. STATE v. BARECO OIL COMPANY. ,\", \"head_matter\": \"STATE v. CONTINENTAL OIL COMPANY. STATE v. MID-CONTINENT PETROLEUM CORPORATION. STATE v. SINCLAIR REFINING COMPANY. STATE v. PHILLIPS PETROLEUM COMPANY. STATE v. SKELLY OIL COMPANY. STATE v. THE TEXAS COMPANY. STATE v. CITIES SERVICE OIL COMPANY. STATE v. BARECO OIL COMPANY. ,\\nJuly 14, 1944.\\nNo. 33,607.\\nJ. A. A. Burnquist, Attorney General, George B. Sjoselms, Assistant Attorney General, James F. Lynch, County Attorney, and Andrew R. Bratter, Assistant County Attorney, for the State.\\nHayner N. Larson, Raymond A. 8callen, and Faegre <6 Benson, for respondents.\\nReported in 15 N. W. (2d) 542.\\nCertiorari denied by United States Supreme Court January 29, 1945.\", \"word_count\": \"9399\", \"char_count\": \"53906\", \"text\": \"Peterson, Justice.\\nThis appeal by the state from the judgments in separate proceedings against each defendant to enforce payment of personal property taxes for the years 1933 to 1910, inclusive, involves the question whether gasoline belonging to them in the tanks of a pipeline company is subject to taxation by the state where the gasoline was transported in interstate commerce by pipe line from points outside the state to the tanks located in the state for processing, storage pending receipt of orders for its sale and distribution, and reshipment by rail to defendants' stations and customers within and without the state to fill the orders received pending the storage. In the case of the Phillips Petroleum Company, a separate question is raised as to the taxability of certain high volatile gasoline used at the tank farm in connection with blending the gasoline shipped by pipe line to prepare it for use. It has been assumed that if the first question is answered in the affirmative the decision will be determinative of this second one also.\\nThe defendants are producers, refiners, and marketers of gasoline and other petroleum products, having their refineries in Texas and in the so-called mid-continent field, which includes parts of Oklahoma, Kansas, and Missouri. They produce six or. seven basic grades of gasoline, which is transported interstate from the refineries by the Great Lakes Pipe Line Company, a stock-owned-and- controlled corporation of the defendants and certain others in the same business, through its pipe lines to a so-called tank farm located at the Minnesota Transfer in Ramsey county, this state. The tank farm is a terminal consisting of numerous large tanks with capacities ranging upwards to 82,000 barrels each, with suitable connections and equipment to receive gasoline shipped by pipe line, to process and store it in the manner herein mentioned, and to reship it by rail. At the time of trial, the tank farm had a capacity of 621,000 barrels or about 26,000,000 gallons.\\nAt the time of delivery to the pipe line and receipt at the tank farm the gasoline is not suitable for the market. The octane count for the market must be at least 70. That of all gasoline shipped is much less than 70, most of it being in a low 60, and some of it as low as 58. Consequently, all gasoline shipped must be raised to the required octane count. This is done by adding tetraethyl lead to each shipment after determining by chemical analysis the amount to be added. In addition, such ingredients as coloring, oils, and, in the case of some defendants, solvents and high volatile gasoline are added. This processing requires several hours. Coloring is added simply by dumping a handful of coloring matter into a tank car of gasoline. The addition of the other ingredients requires some mixing and the use of special devices designed for the purpose. The tetraethyl lead is added by running the gasoline through a \\\"spider\\\" which mixes the lead with the gasoline as it passes through. This operation requires about 6y2 hours. By means of the processing, the six or seven basic grades shipped by pipe line are changed into 26 different kinds of gasoline ultimately to be sold to the trade. The pipe-line company furnishes the facilities, except for certain tanks of two of the defendants, and the labor in connection Avith the processing. The defendants furnish the lead, coloring, oils, solvents, and high volatile gasoline.\\nThe shipment is made from the refineries to the tank farm under bills of lading in which the shipper is named as consignor and consignee and the destination is given as the Minnesota Transfer. The pipe-line company is an interstate common carrier. It has filed regular tariffs and charges the shippers regular tariff rates. While the pipe-line company is regarded by the interstate commerce commission as a common carrier, its processing and storage of gasoline and its property used for such purposes is not, because the commission determined:\\n\\\"This extra handling of the gasoline is a manufacturing or trade service rather than a transportation service.\\n\\\"Accordingly, all property owned by the carriers and used in blending gasoline has been classified in this report as owned but used for purposes other than those of a common carrier.\\\"\\nThe gasoline of a particular shipper may be commingled with the gasoline of the same grade of other shippers. Tenders of shipments are made in such amounts and at such times as to insure an adequate supply of gasoline to meet each shipper's trade needs. When the gasoline arrives at the tank farm it is allocated! to the defendants by the pipe-line company. A stock on hand to meet the trade requirements of at least 35 days is carried by each defendant.\\nThe gasoline is reshipped by rail from the tank farm to bulk stations owned either by the defendants, their contract customers, or \\\"spot\\\" customers. The latter are purchasers who have had no previous contracts with the defendants. Their purchases amount to less than one percent of the gasoline handled at the tank farm. Experience has shown that about 75 percent of the gasoline is delivered to points in Minnesota and 25 percent to points in Wisconsin, North Dakota, and South Dakota. The four states comprise what defendants call the \\\"northern area.\\\" On the average, gasoline is reshipped from the tank farm 35 days after its arrival. This period is necessitated by the processing and awaiting of orders from bulk stations and spot customers. The rail reshipment is made as a, separate shipment under a regular rail bill of lading in which the shipper is named as consignor and either itself or its customer to whom shipment is made as consignee. The bill of lading contains a statement of the state of origin of the gasoline shipped under it.\\nThe tariff rates include a charge not only for the transportation of the gasoline, but for the services rendered by the pipe-line company in processing, storing, loading rail cars, and further ' transportation by rail from the \\\"terminal point [the tank farm] to ultimate destination.\\\" The processing, storage, and loading rail cars are characterized in the tariffs as rendered \\\"in transit\\\" \\u2014 that is, while the gasoline is en route from the refineries to its ultimate destination by rail shipment from the tank farm. The railroads are not parties to the arrangement. The rate established by pipe line from the refineries to the tank farm and by rail from the tank farm to the \\\"ultimate destination\\\" is the same as the all-rail rate from the refineries to the place of ultimate destination. Apparently, the rail rate from the tank farm to the ultimate destination is higher than the proportional rate for the same distance on an all-rail basis. ,To equalize the pipe-line-rail rate from refinery to ultimate destination with that actually charged under the separate pipe-line and rail tariffs, the pipe-line company rebates to shippers the difference between the rail rate and the proportional rate for the actual rail transportation. Apparently this practice is sanctioned.\\nEach defendant has what is called a traffic department, which receives orders for the gasoline while it is in storage and allots it to various bulk stations and customers in approximately 200-barrel lots. After the gasoline is allotted, the pipe-line company is directed to make the proper rail shipment for which the shipper has paid the railroad in advance.\\nWhen the gasoline is delivered to the pipe line outside the state, it is destined ultimately for the consignor's trade throughout' the northern area, but neither the defendants nor the pipe-line company know at that time the particular bulk stations or customers or the particular places to which the gasoline is to be reshipped from the tank farm. In fact, the only destination known at that time is the tank farm. The ultimate destination is to be determined by the traffic, department of each shipper as and when orders for gasoline are received by it.\\nDefendants claim that the storage and processing at the tank farm are necessary to insure safe transportation of the gasoline by the pipe line, because tetraethyl lead is dangerous to human beings. The evidence is that it is a dangerous substance when handled as a separate one, but there was no evidence that it was dangerous to handle when mixed with gasoline. On the contrary, the evidence tends to show that there is no particular danger from handling gasoline containing tetraethyl lead. Defendants offered evidence to the effect that it is uncertain whether it is dangerous to handle gasoline containing tetraethyl lead and that, for that reason, the lead is added at the tank farm rather than at the refineries.\\nThere is no substantial conflict in the evidence. The dispute revolves around the conclusions to be drawn therefrom.\\nAmong other things, the trial court found that gasoline ivas stored in the terminal tanks to await orders from the shippers' own bulk plants and contract customers. As a conclusion of law, it determined that the gasoline while at the tank farm was in interstate transit and not subject to state taxation. Judgments were entered in favor of the defendants, and the state appeals.\\nOn the appeal only the sixth finding stands unchallenged. The others are assailed as unsupported by the evidence and as being in the nature of conclusions resulting from the application of what the trial court conceived to be the governing rules of law to the undisputed facts of the case.\\nAt the outset it is important to bear in mind that we are dealing with a nondiscriminatory state property tax. Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 84, 78 L. ed. 131.\\nThis being a case arising under the constitution of the United States, it is our plain duty to apply the rules laid down by the Supreme Court of the United States. Glover v. Minneapolis Bldg. Trades Council, 215 Minn. 533, 10 N. W. (2d) 481, 147 A. L. R. 1071. In determining what its rules are and in applying them we are bound by that court's appraisal of its decisions.\\nIt is always to be remembered that state taxes upon interstate commerce are invalid, because they conflict with the power of congress to regulate commerce among the states. Interstate commerce is under the control of congress and free from restriction by the states save as it may constitutionally ordain. In determining whether a state property tax is in conflict with the regulatory power of congress over interstate commerce, certain rules have been well established. The states may not tax property in transit in interstate commerce. This is true because the flow of goods in interstate commerce is under the control of congress and free from restrictions which it has not ordained. It is equally true that exemption from state taxation of goods transported in interstate commerce depends upon continuity of transit.\\n\\\" But, by reason of a break in the transit, the property may come to rest within a State and become subject to .the power of the State to impose a non-discriminatory property tax. Such an exertion of state power belongs to that class of cases in which, by virtue of the nature and importance of local concerns, the State may act until Congress, if it has paramount authority over the subject, substitutes its own regulation.\\\" Minnesota v. Blasius, 290 U. S. 1, 9, 54 S. Ct. 34, 37, 78 L. ed. 131, 135.\\nThe necessary consequence is as held in numerous decisions and as said in General Oil Co. v. Crain, 209 U. S. 211, 229, 28 S. Ct. 475, 482, 52 L. ed. 754, 765: \\\"Property, therefore, at an intermediate point between the place of shipment and ultimate destination may cease to be a subject of interstate commerce\\\" and consequently become subject to state taxation.\\nThe question, then, is: What is continuity of transit? Plainly, it means that the transportation is proceeding and that the goods are being moved. But, in order to afford protection from state restriction upon interstate commerce and hence immunity from state taxation, the interstate movement is regarded as continuing despite temporary interruptions (1) because of the necessities of the journey, or (2) for the purpose of safety and convenience in the course of the movement. Champlain Realty Co. v. Town of Brattleboro, 260 U. S. 366, 43 S. Ct. 146, 67 L. ed. 309, 25 A. L. R. 1195 (logs held during high Avater to insure safety of the journey); Carson Petroleum Co. v. Vial, 279 U. S. 95, 49 S. Ct. 292, 73 L. ed. 626 (oil held to accumulate a cargo and aAvait a ship to transport it). Where, however, the goods have come to rest for causes serving the purposes of the OAvner of the goods, they have ceased to be the subject of interstate commerce and are subject to nondiscriminatory state taxation. Property transported in interstate commerce and ultimately destined for points beyond that at which the journey is interrupted, which has \\\"come to rest within a State, being held there at the pleasure of the OAvner, for disposal or use, so that he may dispose of it either within the State, or for shipment elseAvhere, as his interest dictates,\\\" is not in interstate commerce and is to be \\\"deemed to be a part of the general mass of property Avithin the State,\\\" and as such is subject to state taxation. Minnesota v. Blasius, 290 U. S. 1, 10, 54 S. Ct. 34, 37, 78 L. ed. 131, 136, supra.\\nIn the instant case, the gasoline Avas at rest in the tanks; it Avas not in actual transit. It cannot be held to be in transit because of a temporary interruption of the journey due to the necessities of the journey or for the purpose of convenience and safety. A concession that there might be, as defendants claim, an uncertainty whether transportation by pipe line of gasoline containing tetra-ethyl lead is dangerous does not establish that the processing, storage, and distribution at the tank farm were due to such fact. It appears Avithout dispute that other ingredients were abided to some of the gasoline. The ultimate destination of the gasoline was unknown at the time of shipment from the refineries and delivery at the tank farm and was to be determined, while it was being held in storage at the tank farm, by orders for shipment to bulk stations and other customers, depending on where they were located. The gasoline was held for shipment and disposition as the interests of the OAvners dictated. In Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 269, 48 S. Ct. 107, 110, 72 L. ed. 270, 275, where oil transported in ships was unloaded into tanks for ultimate delivery to unascertained customers in the interior of the state (as the gasoline here was to be delivered to unascertained bulk stations and customers in the so-called northern area), Mr. Chief Justice Taft said:\\n\\\"The important controlling fact in the present controversy, and what characterizes the nature of the commerce involved, is that the plaintiff's whole plan is to arrange deliveries of all of its oil purchases on the seaboard of Florida so that they may all ,be there stored for convenient distribution in the state to the . 123 bulk stations and to fuel oil plants in varying quantities according to the demand of the plaintiff's customers, and thence be distributed to subordinate centers and delivery stations, and this plan is being carried out daily. There is neither necessity nor purpose to send the oil through these seaboard storage stations to interior points by immediate continuity of transportation. The seaboard storage stations are the natural places for a change from interstate and foreign transportation to that which is intrastate, and there is nothing in the history of the whole transaction which makes them otherwise, either in intent or in fact. There is nothing to indicate that the destination of the oil is arranged for or fixed in the minds of the sellers beyond the primary seaboard storages o\\u00ed the plaintiff company at Tampa, Port Tampa, Jacksonville or the St. Johns River Terminal. Everything that is done after the oil is deposited in the storage tanks at the Tampa destinations, or at the Jacksonville destinations, is done in the distribution of the oil to serve the purposes -of the plaintiff company that imported it. Neither the sellers who deliver the oil, nor the railroad company that aids the delivery of the oil to the storage tanks and tank cars at the seaboard, has anything to do with determining what the ultimate destination of the oil is, or has any interest in it, or has any duty to discharge in respect to it, except that the railroad company, after the storage in Florida has been established for the purposes' of the plaintiff company, accepts the duty of transporting it in Florida to the places designated by the plaintiff company.\\\"\\nIn numerous cases the rule has been settled that property transported in interstate commerce, which has come to rest and is held in storage either for sale or for use or for distribution, is not in transit, but is part of the mass of the property within the state and as such is subject to state taxation, although it was intended at the inception of the interstate movement to reship the property from the point where the interstate movement was interrupted to a point beyond as its ultimate destination. Southern Pac. Co. v. Gallagher, 306 U. S. 167, 59. S. Ct. 389, 83 L. ed. 586; Federal. C. & W. Co. v. McLean, 291 U. S. 17, 54 S. Ct. 267, 78 L. ed. 622; Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 53 S. Ct. 345, 77 L. ed. 730, 87 A. L. R. 1191; Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270; Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co. 249 U. S. 134, 39 S. Ct. 237, 63 L. ed. 517; Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 33 S. Ct. 712, 57 L. ed. 1015; Bacon v. Illinois, 227 U. S. 504, 33 S. Ct. 299, 57 L. ed. 615; General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 52 L. ed. 754; American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 S. Ct. 365, 48 L. ed. 538, 100 A. S. R. 827; Pittsburg & So. Coal Co. v. Bates, 156 U. S. 577, 15 S. Ct. 415, 39 L. ed. 538; Brown v. Houston, 114 U. S. 622, 5 S. Ct. 1091, 29 L. ed. 257; Missouri Pac. B. Co. v. Schnipper (D. C.) 51 F. (2d) 749, affirmed (7 Cir.) 56 F. (2d) 30; State v. Bartles Oil Co. 132 Minn. 138, 155 N. W. 1035, L. R. A. 1916D, 193; State v. Maxwell Motor Sales Corp. 142 Minn. 226, 171 N. W. 566; State ex rel. Burr v. Seaboard A. L. Ry. Co. 92 Fla. 61, 109 So. 656. Reference to but a few of the cited cases will show, if that is necessary, in view of the decision in the Standard Oil case (275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270), that the gasoline here in question was part of the mass of the property within the state and subject to state taxation.\\nIn Bacon v. Illinois, 227 U. S. 504, 516, 33 S. Ct. 299, 303, 57 L. ed. 615, 620, supra, the court said that the intention of the owner to reship grain after stoppage in transitu for the purpose of inspecting, weighing, grading, mixing, etc., \\\"did not alter the fact that it [the grain] had ceased to he transported\\\" and that the shipper \\\"had established a local facility- in Chicago for his own benefit and while, through its employment, the grain was there at rest, there was no reason why it should not be included with his other property within the State in an assessment for taxation which was made in the usual way without discrimination.\\\" (Italics supplied.)\\nIn Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 668, 33 S. Ct. 712, 714, 57 L. ed. 1015, 1016, supra, it was said of the storage of coal in the yards for the purpose of keeping a supply on hand to fill anticipated orders that \\\"there was something more than the submission to delay in transportation and the acceptance of its consequences. The situation was made a facility of business, a business conducted [as here] through agents and employes.\\\"\\nAs pointed out in the Blasius case, 290 U. S. at p. 12, 54 S. Ct. 38, 78 L. ed. 137, it was said in Champlain Realty Co. v. Town of Brattleboro, in distinguishing Bacon v. Illinois, supra: \\\"His storing of the grain was not to facilitate interstate shipment of the grain, or save it from the danger of the journey \\\" (Italics supplied.) Nor did the processing, storage, and distribution of the gasoline at the tank farm in the instant case have that result. State v. Phillips Pipe Line Co. 339 Mo. 459, 97 S. W. (2d) 109, affirmed, 302 U. S. 642, 58 S. Ct. 53, 82 L. ed. 499.\\nIn General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 52 L. ed. 754, supra, oil shipped in interstate commerce to a warehouse where it was stored pending reshipment to fill orders in other states for which it was ultimately destined was held to be subject to state taxation.\\nIn American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 S. Ct. 365, 48 L. ed. 538, 100 A. S. R. 827, supra, the court held that property shipped in interstate movement to a transfer company, which was to take charge of it upon arrival and sort, store, and deliver it in the original packages either as generally or specifically directed by the shipper to its recognized and approved customers for whom the goods were ultimately destined, was when stored in the warehouse no longer in transit, but had reached its destination and was subject to state taxation.\\nIn State v. Bartles Oil Co. 132 Minn. 138, 155 N. W. 1035, L. R. A. 1916D, 193, supra, we held that gasoline shipped into the state in tank cars and unloaded into tanks, where it was mixed with other gasoline, and there held for sale to customers in and outside the state, ceased to be the subject of interstate commerce and had become a part of the mass of the property within the state so as to be subject to state inspection and the fees charged therefor. We there reviewed and followed the decisions of the Supreme Court of the United States, including such cases as General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 52 L. ed. 754; Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 33 S. Ct. 712, 57 L. ed. 1015; Bacon v. Illinois, 227 U. S. 504, 33 S. Ct. 299, 57 L. ed. 615; and C. M. & St. P. Ry. Co. v. Iowa, 233 U. S. 334, 34 S. Ct. 592, 58 L. ed. 988.\\nThe determination of the interstate commerce commission that the handling of the gasoline at the tank farm was not a transportation, but a manufacturing or trade service, and that its property used for such service was for a purpose other than as a common carrier is but a logical application of the governing rules of law to the facts of the case. Such a determination by that authority is entitled to great weight.\\nIt is immaterial that the pipe-line company undertook, as part of the shipping arrangement, not only the transportation by itself by pipe line from the refineries to the tank farm, but also that by rail from the tank farm to the point of ultimate destination. Since the rail carriers were not parties to the arrangement, the transportation was not by through pipe-line-rail transportation. Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270. But, if it were assumed that there was through pipe-line-rail transportation, it would make no difference. Where a shipment is made under a through bill of lading on a through rate with, right of stoppage in transitu, stoppage of the transportation by the owner of the goods renders them subject to state taxation if the stoppage is not due to necessities of the journey or for the purposes of safety and convenience in the course of the movement, but for the owner's purposes, either to process, to sell, or to distribute the same. Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co. 249 U. S. 134, 39 S. Ct. 237, 63 L. ed. 517, supra (stoppage of timber at a mill for purposes of manufacturing it into lumber, storage pending receipt of orders from customers in other states, and reshipment to them under the original bill of lading upon receipt of orders); Bacon v. Illinois, 227 U. S. 501, 33 S. Ct. 299, 57 L. ed. 615, supra (withdrawal of grain shipped from southern and western states to New York at Chicago for purposes of inspecting, weighing, cleaning, clipping, drying, sacking, grading or mixing, or changing the consignee).\\nThe fact that the gasoline was part of a flow of commerce otherwise subject to congressional regulation, which in this case was simply a regulation of the rates charged by the pipe-line company and by the railroads for transportation, does not affect the right of the state to impose nondiscriminatory property taxes. Federal C. & W. Co. v. McLean, 291 U. S. 17, 51 S. Ct. 267, 78 L. ed. 622 (Federal Warehousing Act, 7 USCA, \\u00a7 211, et seq.); Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131 (Sherman Anti-Trust Act, 15 USCA, \\u00a7 1-7, 15 note, and Packers and Stockyards Act, 7 USCA, \\u00a7 181, et seq.); Chicago Board of Trade v. Olsen, 262 U. S. 1, 43 S. Ct. 470, 67 L. ed. 839 (Grain Futures Act, 7 USCA, \\u00a7 1, et seq.).\\nThe fact that here the gasoline was in the possession of the pipeline company on the taxing day is of no importance. See, Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131 (cattle in, stockyards); Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 33 S. Ct. 712, 57 L. ed. 1015 (coal in piles in railroad yards).\\nNor was the gasoline m transit while being processed, stored, distributed, and loaded onto cars at the tank farm because of! the fact that the pipe-line company's tariffs provided for a charge for these services upon that basis. Parties cannot by contract make a transaction interstate commerce which is essentially intrastate in its nature. Mr. Justice Stone, the present Chief Justice, in Federal C. & W. Co. v. McLean, 291 U. S. 17, 22, 54 S. Ct. 267, 269, 78 L. ed. 622, 627, said:\\n\\\"The fact that appellant's contract with the interstate rail carrier has designated appellant as the carrier's agent and appellant's warehouse as the carrier's depot cannot alter the legal consequences of what is:actually done with the cotton by its owners of of their power of control over it, or of the actual course of dealing with it by appellant. It is not within the power of the parties, by the descriptive terms of their contract, to convert a local business into an interstate commerce business protected by the interstate commerce clause.\\\"\\nWe have examined the cases cited by defendants, but none of them are in point. Because they are numerous, we shall refer to but a few of them out of regard for space. Some involve a tax on property in actual interstate transit or in the carrier's possession for immediate movement as soon as its facilities (a pipe line) will permit, as in Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265, 42 S. Ct. 101, 66 L. ed. 227. Here, the transit was ended. Carson Petroleum Co. v. Vial, 279 U. S. 95, 49 S. Ct. 292, 73 L. ed. 626, and Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 33 S. Ct. 229, 57 L. ed. 442, were distinguished in Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 266-267, 53 S. Ct. 345, 349-350, 77 L. ed. 730, 737-738, 87 A. L. R. 1191, 1198-1200, upon the ground that in those cases the whole shipment was destined for foreign countries and consequently they were not applicable where, as here, no \\\"ascertainable part of the gasoline\\\" had a destination beyond the state. The instant case is stronger for state taxation, because not only no ascertainable part of the gasoline was destined for reshipment beyond the state of Minnesota, but no destination for any part thereof was known or had been ascertained. Furthermore, in the cited cases storage was due to necessary delay while accumulating a cargo and waiting for ships, whereas here there was no delay for either purpose; rail transportation was at all times available. Some of the cited cases, like Southern Pac. Terminal Co. v. I. C. C. 219 U. S. 498, 31 S. Ct. 279, 55. L. ed. 310, involve the extent of the power of congress to regulate interstate commerce. The cited case involved the question of the right of congress to prohibit a carrier from granting a shipper a preference by leasing to him a pier and improvements thereon to manufacture cottonr seed into cake for foreign shipment. The Supreme Court of the United States has emphasized that cases involving the reach of federal power are of no particular value as precedents in determining whether a particular business apart from the statutory regulation constitutes interstate commerce. A. B. Kirschbaum Co. v. Walling, 316 U. S. 517, 62 S. Ct. 1116, 86 L. ed. 1638. As said in Chicago Board of Trade v. Olsen, 262 U. S. 1, 34, 43 S. Ct. 470, 476, 67 L. ed. 839, 849: \\\"It was held that this [regulation under the Packers and Stockyards Act] could be done even though the sales and purchases by commission men and by dealers were in and of themselves intrastate eo-mmerce, the parties to sales and purchases and the cattle all being at the time within the city of Chicago.\\\" (Italics supplied.) Substantially the same observation was made in Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270.\\nFurthermore, most of the cases cited by the defendants, such as Southern Pac. Terminal Co. v. I. C. C. 219 U. S. 498, 31 S. Ct. 279, 55 L. ed. 310; Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265, 42 S. Ct. 101, 66 L. ed. 227; Champlain Realty Co. v. Town of Brattleboro, 260 U. S. 366, 43 S. Ct. 146, 67 L. ed, 309, 25 A. L. R. 1195; Carson Petroleum Co. v. Vial, 279 U. S. 95, 49 S. Ct. 292, 73 L. ed. 626; and Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 33 S. Ct. 229, 57 L. ed. 442, are cited and classified in such decisions as Southern Pac. Co. v. Gallagher, 306 U. S. 167, 59 S. Ct. 389, 83 L. ed. 586; Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131; and Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 53 S. Ct. 345, 77 L. ed. 730, 87 A. L. R. 1191, where it is pointed out that the cases cited by defendants have no application in a fact situation such as is here involved.\\nOur conclusion is that the gasoline came to rest at the tank farm so as to become a part of the mass of the property within the state and subject to state taxation. Under the circumstances, reshipment of the gasoline by rail to other points in the so-called northern area did not establish a continuity of' movement, and consequently the gasoline was not in transit at the time the tax in' question was imposed.\\nThere is no room here for a finding that the processing and storage at the tank farm and subsequent distribution facilitated the interstate movement or constituted a temporary interruption of the interstate movement due to the necessities of the journey or for purposes of safety and convenience ill the course of the movement. The plain fact is that processing, storage, and distribution neither facilitate nor impede transportation, but are separate local activities engaged in by the shippers to suit their convenience and necessities. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 55 S. Ct. 837, 79 L. ed. 1570, 97 A. L. R. 947; Federal C. & W. Co. v. McLean, 291 U. S. 17, 54 S. Ct. 267, 78 L. ed. 622; Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270. The only intent which the court may consider is an objective one disclosed by the ultimate facts which are not in dispute. As said in Western Oil Refining Co. v. Lipscomb, 244 U. S. 346, 349, 37 S. Ct. 623, 624, 61 L. ed. 1181, 1184: \\\"Ordinarily the question whether particular. commerce is interstate or intrastate is determined by what is actually done .\\\"\\nThe findings that the processing and storage facilitated interstate transportation are opposed to the undisputed facts and are but inferences in the nature of conclusions made by the trial cofirt by applying to them what it conceived to be applicable! rules of law. Such findings of fact are not entitled to any more weight than a conclusion of law made by a trial court. As said in Country Club D. S. Co. v. Village of Edina, 214 Minn. 26, 32, 8 N. W. (2d) 321, 325:\\n\\\"*\\u2022 When findings of fact are couched in general terms that anticipate the' result and disclose that they are colored by an erroneous conception of the law applicable, this court will not givfe them the weight to which they are ordinarily entitled.\\\"\\nWhat we said concerning a similar conclusion which the trial court stated was a finding of fact in the case of S. R. A., Inc. v. State, 213 Minn. 487, 500, 7 N. W. (2d) 484, 490, applies here:\\n\\\"Finding No. 13, so-called, was not within the stipulated facts. It was inserted by the court on its own motion. It is without support as a finding of fact and amounts to no more than a conclusion of law. The facts being without dispute otherwise, it may be stricken as irrelevant to the issues.\\\"\\nThe state is entitled to judgment for the taxes in question.\\nReversed with directions to enter judgment in favor of the state in accordance with the views stated herein.\\nIn Baumgartner v. United States, 322 U. S. 665, 671, 64 S. Ct. 1240, 1243, the Supreme Court of the United States said:\\n\\\" Finding so-called ultimate 'facts' more clearly implies the application of standards of law. And so the 'finding of fact' even if made by two courts may go beyond the determination that should not be set aside here. Though labeled 'finding of fact,' it may involve the very basis on which judgment of fallible evidence is to be made. Thus, the conclusion that may appropriately be drawn from the whole mass of evidence is not always the ascertainment of the kind of 'fact' that precludes consideration by this Court.\\\"\"}"