EN BANC CALENDAR

 
State of Minnesota, Respondent vs. Jermaine Ferguson, Appellant – Case No. A06-498 and Jermaine Ferguson, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-1125:  Jermaine Ferguson’s direct appeal of his conviction of first-degree murder and attempted first-degree murder and appeal of the denial of his petition for postconviction relief have been consolidated before the supreme court.  At issue on direct appeal are whether the district court erred in limiting during trial Ferguson’s cross-examination of a co-conspirator about the specific reduction in sentence she received under the terms of her plea agreement and whether the testimony of Ferguson’s co-conspirators was uncorroborated.  Also at issue is whether the district court abused its discretion in denying Ferguson’s petition for postconviction relief, without a hearing, based on a statement made by a witness at Ferguson’s trial to an investigator recanting his testimony at trial.  (Hennepin County)

Susan Dunn, et al., Appellants vs. National Beverage Corp., a Delaware corporation, et al., Respondents, DTM Distributing, Inc., Defendant – Case Nos. A06-396 and A06-397:  A jury found that respondent National Beverage Corporation breached its franchise agreement with appellant Home Juice Citrus Products Mid-West, Inc., a company owned by appellants Susan Dunn and Richard Newstrom, and terminated Home Juice’s franchise rights without good cause in violation of the Minnesota Franchise Act, Minn. Stat. ch. 80C (2006).  The jury awarded appellants monetary damages for breach of the franchise agreement but not for respondent’s violation of the franchise act.  Appellants then sought an award of their attorney fees under Minn. Stat. § 80C.17, subd. 3 (2006).  The district court denied appellants’ request for attorney fees; the court of appeals affirmed on grounds that an award of attorney fees under section 80C.17 requires that the party seeking fees have sustained “actual damages” under the statute itself.  On appeal to the supreme court, the issue is whether an award of damages for violation of the Franchise Act is required for an award of attorney fees under section 80C.17.  (Dakota County)
 
State of Minnesota, Respondent vs. Jeffrey David Mohs, Appellant – Case No. A06-199:  When appellant Jeffrey Mohs did not appear for his felony jury trial, the district court issued a “body only” bench warrant for him that did not specify bail.  Officers executing the bench warrant observed Mohs discarding what proved to be methamphetamine and arrested him.  Mohs appeared in court within 36 hours of his arrest, and bail was set.  Mohs moved to suppress the methamphetamine on grounds that the bench warrant the officers were executing was constitutionally defective because it was issued without an oath or affirmation and because it did not specify bail.  Both the United States Constitution and the Minnesota Constitution provide that “[n]o warrant shall issue but upon probable cause, supported by oath or affirmation.”  Under Article I, Section 7 of the Minnesota Constitution, bail is to be available in all cases except “capital offenses.”  The motion to suppress was denied and Mohs was found guilty of possession on the basis of stipulated facts.  The court of appeals affirmed the denial of the motion to suppress.  The question before the supreme court is whether a bench warrant based on the district court’s personal knowledge, rather than on a oath or affirmation, and that did not provide for the defendant’s release on bail is unconstitutional.  (Anoka County)

State of Minnesota, Respondent vs. Toyie Diane Cottew, Appellant – Case No. A06-785:  Appellant Toyie Cottew was convicted of fourth-degree driving while impaired and placed on probation.  Cottew did not comply with the terms of her probation and the district court ordered her to serve five days in jail and five days of electronic home monitoring as a consequence.  The district court did not make any findings as to whether Cottew’s probation violations were inexcusable or intentional or as to whether the need for confinement outweighed the policies favoring probation, as required in State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980), before probation may be revoked.  The court of appeals affirmed.  The issue before the supreme court is whether the district court must make findings as to the Austin factors before imposing intermediate sanctions for probation violations that fall short of revoking probation entirely.  (Aitkin County)
 
State of Minnesota, Respondent vs. Dirk Lionel Goelz, Appellant – Case No. A06-2424:  On appeal from his conviction of first-degree domestic abuse murder of his girlfriend, appellant Dirk Goelz presents the following issues for review:  (1) whether Goelz is entitled to a new trial because the district court erred in admitting evidence of an order for protection filed by Goelz’s ex-wife against him, Goelz’s alleged violation of that order for protection, and Goelz’s faked suicide to prove a pattern of domestic abuse; and (2) whether the district court erred when it denied Goelz’s motion to dismiss the grand jury indictment because the indictment was based on inadmissible evidence on the existence of a pattern of domestic abuse and on Goelz’s character and because the evidence that was admissible was insufficient to support the indictment.  (Renville County)

John Wesley Hebert, et al., Respondents vs. City of Fifty Lakes, Appellant – Case No. A06-215:  Respondents collectively own six lots that abut a gravel road in the City of Fifty Lakes.  Respondents’ properties are registered under the Torrens statute.  The gravel road was platted in 1954 but was not constructed as platted.  Rather, when the gravel road was constructed in about 1971 it encroached on each of respondents’ lots.  In 2005, respondents sued the city seeking a declaration that the city had no right to any portion of their properties and seeking to eject the city from their properties.  The district court dismissed respondents’ complaint on grounds that the construction of the gravel road constituted a taking by the city that deprived respondents of legal possession of the land and therefore barred respondents’ claims for ejectment and trespass.  The district court further concluded that respondents’ claim for inverse condemnation was barred by the applicable 15-year statute of limitations under Minn. Stat. § 541.02 (2006).  The court of appeals reversed and reinstated respondents’ complaint on grounds that the city’s encroachment was more akin to a temporary intrusion than to a de facto taking.  The questions before the supreme court are whether the construction of the gravel road constituted a taking and what, if any, statute of limitations applies to respondents’ claims.   
 
Joshua Rechtfertig, Relator vs. Michael Spiering, Uninsured, Respondent, and St. Mary’s Duluth Clinic Health System and JC Christensen/Radiological Associates, Intervenors, and Special Compensation Fund, Respondent – Case No. A07-1306:  Respondent Michael Spiering hired relator Joshua Rechtfertig on an hourly basis to help him build a garage.  After working on the garage for about a month, Rechtfertig fell from the roof and was injured; he filed a claim for workers’ compensation.  Under Minn. Stat. § 176.041, subd. 1(k) (2006), an injury to “a person whose employment at the time of the injury is casual and not in the usual course of the trade, business, profession, or occupation of the employer” is not covered by workers’ compensation.  The compensation judge found that Rechtfertig’s employment was not “casual” within the meaning of the statute, but the workers compensation court of appeals reversed.  At issue before the supreme court is whether Rechtfertig’s work for Spiering was “casual.”  (Workers’ Compensation Court of Appeals)

EN BANC NONORAL:  Guy James Hathaway, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-1188:  Petitioner pro se Guy Hathaway was convicted in 1984 of first-degree murder in the death of a hospital security guard who was also an off-duty police officer; his conviction was affirmed on direct appeal.  State v. Hathaway, 379 N.W.2d 498 (Minn. 1985).  The district court denied Hathaway’s second petition for postconviction relief without an evidentiary hearing.  On appeal, Hathaway presents the following issues for the supreme court’s review:  (1) whether he was denied due process in the denial of his first postconviction petition because he was denied the right to be present during the hearing on the petition; (2) whether he received effective assistance of counsel at trial and in connection with his first postconviction petition; (3) whether references to the victim during trial as a “police officer” or “officer” were misleading and highly prejudicial; and (4) whether he should have been granted an evidentiary hearing on his second postconviction petition because of newly-discovered evidence.  (Ramsey County) 
 
Auto Owners Insurance Company, Respondent vs. Chong Suk Perry, Appellant – Case No. A06-1235:  Daniel Savage was killed in an auto accident in 2005.  At the time of his death, Savage owned a home and joint bank account with appellant Chong Suk Perry, who was financially dependent on him for support.  Perry sought survivors benefits under the automobile policy covering Savage at the time of his death.  The policy defined “dependent” as the deceased’s surviving spouse and minor children.  Under Minn. Stat. § 65B.44, subd. 6 (2006), a decedent’s spouse and minor children who live with the decedent at the time of death are presumed to be dependents for purposes of survivors benefits.  The statute further provides that “[q]uestions of the existence and the extent of dependency shall be questions of fact, considering the support regularly received from the deceased.”  The district court denied survivors benefits to appellant Perry; the court of appeals affirmed.  The question before the supreme court is whether survivors economic loss benefits are limited by statute to a decedent’s spouse and dependent children.  (Scott County)

HealthEast, Relator, and University of Minnesota Physicians, intervenor, Relator vs. County of Ramsey, Respondent – Case No. A07-1086:  Relator HealthEast owns the Bethesda Clinic, which it leases to relator University of Minnesota Physicians.  On relators’ appeal from a judgment of the Minnesota Tax Court, the issue before the supreme court is whether the clinic property is exempt from real property taxation under Minn. Stat. § 273.19 (2006) because it is tax-exempt property leased to a “benevolent society or institution.”   (Tax Court)
 
In re the Estate of:  Francis E. Barg, a/k/a Francis Edward Barg – Case No. A05-2346:  Dolores and Francis Barg held their homestead in joint tenancy during their marriage.  In 2001, Dolores transferred her interest in the homestead to her husband, Francis, and entered a nursing home.  Between 2001 and her death in 2004, Dolores received medical assistance benefits.  Five months after Dolores’ death, Francis died.  Federal law allows the county to recover medical assistance benefits paid to an individual over age 55 “from the individual’s estate” after the death of the surviving spouse.  42  U.S.C. § 1396p(b)(1)(B), (b)(2) (2000).  Minnesota Statutes § 256B.15, subd. 2 (2006), allows the county to recover benefits paid for Dolores from Francis’s estate but limits the county’s claim to “the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage.”  The probate court allowed only a portion of the county’s claim equal to the value of a life estate in the homestead.  The court of appeals reversed, limiting the amount to be paid on the county’s claim to the value of an undivided half-interest in the homestead.  At issue before the supreme court are:  (1) whether Dolores had any interest in the homestead at the time of her death; and (2) if Dolores had an interest in the homestead at the time of her death, how to value that interest.  (Mille Lacs County)

State of Minnesota, Appellant vs. Tavon Tarrell Timberlake, Respondent – Case No. A06-72:  Police received a report that an unidentified passenger in a car leaving a service station was seen with a gun.  Police stopped the car and found a gun under the passenger seat.  The passenger, respondent Tavon Timberlake, is ineligible to possess a firearm.  Timberlake moved to suppress evidence of the gun; his motion was denied and he was convicted after a jury trial.  Timberlake appealed his conviction and the court of appeals reversed.  The issue before the supreme court is whether, even if officers reasonably believed that someone in the car had a gun, officers needed reasonable suspicion that someone in the car was engaging in criminal activity in order to justify their investigatory stop.   (Ramsey County)