EN BANC CALENDAR

Before the Minnesota Supreme Court

NOVEMBER 2012

SUMMARY OF ISSUES

Summaries prepared by the Supreme Court Commissioner’s Office

Monday, November 5, 2012

Supreme Court Courtroom, State Capitol

State of Minnesota, Respondent vs. Nidjia Dean Nicks, Appellant – Case Nos. A09-1641, A12-0348: Appellant Nidjia Nicks was convicted of first-degree murder and attempted first-degree murder. The supreme court stayed Nicks’s appeal of those convictions so that he could pursue postconviction relief. The district court denied Nicks’s petition for postconviction relief. Nicks’s appeal of the postconviction order was then consolidated with the direct appeal of his convictions.

On appeal to the supreme court, the following issues are presented: (1) whether Nicks is entitled to a new trial because he received ineffective assistance of trial counsel; (2) whether Nicks is entitled to a new trial because of newly discovered false testimony; (3) whether Nicks is entitled to a new trial because of the admission of evidence that he was involved in prostitution; and (4) whether Nicks is entitled to a new trial because the prosecutor committed misconduct. (Hennepin County)

Nonoral: Susan Rae Berkovitz, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A12-0908: Appellant Susan Berkovitz was convicted of first-degree murder and first-degree attempted murder in 2004. Berkovitz’s convictions were affirmed on direct appeal. In February 2012, Berkovitz filed a petition for postconviction relief, which the district court denied. On appeal to the supreme court, the following issues are presented: (1) whether Berkovitz’s petition for postconviction relief is time-barred; (2) whether Berkovitz’s petition for postconviction relief is Knaffla-barred; and (3) whether Berkovitz was entitled to an evidentiary hearing on her petition for postconviction relief. (Hennepin County)

Tuesday, November 6, 2012

Supreme Court Courtroom, State Capitol

Christopher R. Coker, Appellant vs. Lucinda E. Jesson, Commissioner of Human Services, Respondent – Case No. A11-1817: Appellant Christopher Coker was indeterminately civilly committed in 2000 as a sexually dangerous person. In 2006, Coker petitioned the special review board for transfer to a nonsecure facility, for provisional discharge, and for discharge from civil commitment. The special review board recommended that Coker’s petition be denied; a judicial appeal panel dismissed Coker’s appeal on the basis that Coker had failed to make out a prima facie case for transfer. The court of appeals reversed the judicial appeal panel, concluding that by requiring Coker to show that he satisfied the statutory criteria for discharge, the judicial appeal panel had held Coker to the wrong evidentiary burden. Coker v. Ludeman, 775 N.W.2d 660 (Minn. App. 2009), rev. denied (Minn. Feb. 24, 2010). Coker’s case was remanded to the judicial appeal panel.

In 2010, the Legislature amended Minn. Stat. § 253B.19, subd. 2 (2010), to define the petitioner’s “burden of going forward with the evidence.” The special review board recommended that Coker’s petition for provisional discharge be denied on the basis that Coker had not met his burden of production to establish a prima facie case for provisional discharge. The judicial panel dismissed Coker’s petition, and the court of appeals affirmed.

On appeal to the supreme court, two issues are presented: (1) whether the court of appeals required Coker to make out more than a prima facie case for a reduction in custody; and (2) whether Minn. Stat. § 253B.19, as amended in 2010, is unconstitutional because it imposes on the petitioner the initial burden of presenting evidence that the petitioner is entitled to relief. (Judicial Appeal Panel)

City of Moorhead, Appellant vs. Red River Valley Cooperative Power Association, Respondent – Case No. A11-0705: In 2006 appellant City of Moorhead acquired by eminent domain from respondent Red River Valley Cooperative Power Association the right to provide electric service to homes in the Americana Estates subdivision and the physical facilities necessary to do so. Minnesota Statutes § 216B.47 (2010) provides that damages to be paid in eminent domain proceedings to acquire the property of a public utility “must include the original cost of the property less depreciation, loss of revenue to the utility, expenses resulting from integration of facilities, and other appropriate factors.” The City’s expert initially opined that the cooperative’s damages were limited to the effect of the loss of service area on the fair market value of the cooperative itself, which the City’s expert calculated to be $140,000. On the cooperative’s motion, the district court excluded all evidence as to fair market value. A jury awarded the cooperative damages of $385,311, including compensation for the present value of the revenues the cooperative would have received from providing electric service to the subdivision in the future. The court of appeals affirmed the exclusion of evidence concerning fair market value.

On appeal to the supreme court, the issue is the measure of damages in eminent domain proceedings under Minn. Stat. § 216B.47. (Clay County)

Wednesday, November 7, 2012

Supreme Court Courtroom, State Capitol

Doris Ruiz, Respondent vs. 1st Fidelity Loan Servicing, LLC, Appellant – Case No. A11-1081: In 2005, respondent Doris Ruiz financed the purchase of a duplex with a mortgage granted to Chase Bank USA. In 2008, Ruiz defaulted on the mortgage. In 2009, the mortgage was assigned to appellant 1st Fidelity; however, the assignment did not reflect appellant’s full legal name. A corrective assignment and a notice of pendency were filed on May 18, 2010, the same day as the first publication of the foreclosure notice. The property was sold at a sheriff’s sale, from which Ruiz failed to redeem.

In February 2011 Ruiz began this action, claiming that the foreclosure by advertisement was void because the notice of pendency and the corrective assignment were filed on the same day as the first publication of the notice of foreclosure. The district court dismissed Ruiz’s complaint, holding that despite any irregularities, Ruiz lacked standing to challenge the foreclosure under Minn. Stat. §§ 580.02 (requiring that all assignments of the mortgage to be foreclosed be recorded as a condition precedent to the right to foreclose by advertisement) and 580.032 (requiring that the notice of pendency be recorded before the first date of publication) (2010) because those statutes benefit junior creditors and the public at large and Ruiz had separate notice of the foreclosure. The court of appeals reversed, applying a strict standard of compliance.

On appeal to the supreme court, two issues are presented: (1) whether all procedural requirements in a foreclosure proceeding must be strictly complied with; and (2) whether Ruiz has standing to challenge curable foreclosure procedures not meant for her protection in the absence of any showing of prejudice. (Hennepin County)

Nonoral: Eden Prairie Mall, LLC, Relator vs. County of Hennepin, Respondent – Case No. A12-0542: In 2009 relator Eden Prairie Mall, LLC, appealed a decision of the Minnesota Tax Court determining the value of relator’s property as of January 2, 2005, and January 2, 2006. The property valuations adopted by the tax court were those proposed by the County in a post-trial brief, which were higher than the market values assigned to the property by either appraiser. The supreme court reversed the tax court’s decision and remanded the matter to the tax court on grounds that the tax court had rejected the testimony of both appraisers without indicating the basis for its calculations and without providing an adequate explanation and factual support in the record. Eden Prairie Mall, LLC v. County of Hennepin, 797 N.W.2d 186 (Minn. 2011).

On remand, the tax court ordered additional briefing from the parties but did not reopen the record for additional evidence. After receiving submissions from the parties, the tax court issued findings of fact and conclusions of law that found market values for the property that were lower than those originally found by the tax court, but which were still higher than those testified to by either appraiser.

On appeal to the supreme court, the following issues are presented: (1) whether the tax court followed the supreme court’s instructions on remand; (2) whether the tax court adopted a capitalization rate on remand that was not supported by the record; (3) whether the tax court properly rejected the opinion of relator’s expert as to the value of furniture, fixtures, and equipment; and (4) whether in making its final calculations of value on remand, the tax court made mathematical errors. (Minnesota Tax Court)

Thursday, November 8, 2012

Supreme Court Courtroom, State Capitol

The County of Dakota, Respondent vs. George W. Cameron, IV, Appellant – Case No. A11-1273: In 2008 respondent Dakota County condemned property for highway expansion, on which appellant George W. Cameron, IV, operated a liquor store. A panel of commissioners awarded Cameron $655,000 as compensation for the taking, from which Cameron appealed to the district court. To the district court, Cameron argued that because no existing property in the community, which Cameron defined as a 3-mile radius around the taken property, was comparable to that taken by the County, he was entitled under Minn. Stat. § 117.187 (2010) to compensation sufficient to purchase land in the community and to construct a new building, which Cameron estimated would cost about $2 million. The district court deemed an existing liquor store outside the 3-mile radius, which sold in 2008, to be comparable and awarded Cameron damages of about $997,000. In a second order, the court awarded Cameron costs, disbursements, and attorney fees of about $225,000, also less than Cameron had requested. The court of appeals affirmed.

On appeal to the supreme court, the following issues are presented: (1) whether the lower courts misinterpreted Minn. Stat. § 117.187; (2) whether under Minn. Stat. § 117.187 a comparable property must be available for purchase on the date of the taking; (3) whether the lower courts erred in their definition of the “community” in which replacement property must be available; and (4) whether the district court erred in failing to award Cameron the full amount of attorney fees requested. (Dakota County)

Nonoral: Candy S. Bradison, Relator vs. Commissioner of Revenue, Respondent – Case No. A12-0428: Relator Candy S. Bradison is the personal representative of the estate of her daughter, Katelyn S. Janson, who died in April 2006 while undergoing medical treatment in Minnesota. Katelyn was the beneficiary of certain annuities established for her benefit after a 1997 motor vehicle accident in which she was seriously and permanently disabled. This case presents two issues for the supreme court’s consideration: (1) whether the annuities are properly included in Katelyn’s estate; and (2) whether Katelyn was a resident of Minnesota at the time of her death. (Minnesota Tax Court)

Tuesday, November 13, 2012

Hamline Law School

City of Brainerd, Respondent vs. Brainerd Investments Partnership, et al., Respondents Below, Roger Anda, et al., Appellants – Case Nos. A11-0644, A11-1471: These consolidated appeals involve an attempt by respondent City of Brainerd to pay for the reconstruction of College Drive with special assessments. Appellants Roger and Betty Anda and James and Kathleen Martin challenged the sufficiency of the petition to reconstruct the road submitted by Central Lakes College. Among other arguments, appellants claimed that because the College is an instrumentality of the State of Minnesota, which is not subject to special assessments, the College is not an “owner” of property for purposes of petitioning for an improvement under Minn. Stat. § 429.031 (2010). The district court granted the City’s motion for summary judgment and dismissed appellants’ claims. The court of appeals affirmed.

On appeal to the supreme court, the issue presented is whether state property is counted in determining whether a petition pursuant to Minn. Stat. § 429.031 has been signed by owners of 35 percent of the property abutting a proposed special assessment project. (Crow Wing County)

Wednesday, November 14, 2012

Courtroom 300, Minnesota Judicial Center

Auto-Owners Insurance Company, Appellant vs. Second Chance Investments, LLC, Respondent – Case No. A11-1145: In November 2008 a house owned by respondent Second Chance Investments, LLC, and insured by appellant Auto-Owners Insurance Company was damaged by fire. Second Chance filed a claim and proof of loss, claiming the property was a total loss and seeking the policy limits plus costs of demolition and lost rent. Auto-Owners did not dispute coverage, but did dispute whether the property was a total loss.

Under Minn. Stat. § 65A.01, subd. 3 (2010), disputes over the amount of a loss are decided by an “umpire,” who weighs differences in appraisals submitted by the insured and by the insurer. However, under section 65A.01 that process applies “except in case of total loss on buildings.” The district court denied Auto-Owners’ request to compel Second Chance to submit the question of whether the property was a total loss to an appraisal panel and, finding genuine issues of material fact as to whether the property was a total loss, directed that the question be put to a jury. The court of appeals affirmed.

On appeal to the supreme court, the issue presented is whether the parties to a standard Minnesota fire insurance policy have a statutory or contractual right to have an appraisal panel determine whether a claim involves a total loss. (Hennepin County)

Nonoral: 444 Lafayette, LLC, et al., Relators vs. County of Ramsey, Respondent – Case No. A12-0963: In 2011, relators 444 Lafayette, LLC and Meritex Enterprises, Inc. appealed a decision of the Minnesota Tax Court determining the value of relators’ property as of January 2, 2007, January 2, 2008, and January 2, 2009. The property valuations adopted by the tax court were those proposed by the County in a post-trial brief, which were higher than the market values assigned to the property by either appraiser. The supreme court reversed the tax court’s decision and remanded the matter to the tax court on grounds that the tax court had rejected the testimony of both appraisers without indicating the basis for its calculations and without providing an adequate explanation and factual support in the record. 444 Lafayette, LLC v. County of Ramsey (444 Lafayette I), 811 N.W.2d 106 (Minn. 2012).

On remand, the tax court ordered additional briefing from the parties but did not reopen the record for additional evidence. After receiving submissions from the parties, the tax court issued findings of fact and conclusions of law that found market values for the property that were generally lower than those originally found by the tax court, but which were still higher than those testified to by either appraiser.

On appeal to the supreme court, the issue presented is whether the tax court followed the guidance and directions of the supreme court in 444 Lafayette I on remand. (Minnesota Tax Court)