EN BANC CALENDAR

Before the Minnesota Supreme Court
December 2011
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office

Fannie Mae, Appellant v. Heather Apartments Limited Partnership d/b/a Vintage Lakes Apartments, et al., Defendants, Andrew Grossman, Respondent – Case Nos. A10-1336, A10-1505:  Appellant Fannie Mae commenced an action in district court to collect on a judgment obtained in a foreclosure action against respondent Andrew Grossman.  The district court issued an ex parte temporary restraining order to prohibit Grossman from transferring or disposing of assets that he had received, was due to receive, or would receive from his late father’s estate, which included a trust containing a spendthrift clause.  The district court later converted the temporary restraining order to a temporary injunction.  The court of appeals reversed the district court’s order issuing a temporary injunction.  

On appeal to the supreme court, the issue presented is whether the district court had the authority to enjoin the conduct, or assign the interest, of a beneficiary in a spendthrift trust before distribution of trust assets.  (Hennepin County)

Rene Reyes Campos, Respondent v. State of Minnesota, Appellant – Case No. A10-1395:  In May 2009, appellant the State of Minnesota filed a delinquency petition against then 17-year-old respondent Rene Campos, charging him with felony simple robbery committed for the benefit of a gang.  Campos has been a lawful permanent resident of the United States since 2002.  The State moved for adult certification.  In July 2009, Campos, who was represented by counsel, waived his right to a certification hearing and pleaded guilty to an amended charge of simple robbery as part of a plea agreement.  The district court accepted Campos’s guilty plea, stayed imposition of sentence, and placed him on probation for three years. 

On May 26, 2010, Campos moved to withdraw his guilty plea, relying on the Supreme Court’s holding in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that an attorney provides a constitutionally deficient performance in violation of the Sixth Amendment if counsel fails to advise a non-citizen defendant about the deportation risks of a guilty plea.  The district court ruled that Padilla does not apply retroactively and that because Minnesota law, as it existed at the time of the plea, did not require counsel to inform Campos of the immigration consequences of his plea, Campos was not deprived of effective assistance of counsel.  The court of appeals reversed the district court.

On appeal to the supreme court, the issues presented are:  (1) whether the rule announced in Padilla v. Kentucky applies retroactively to a case in which a defendant’s conviction was final before Padilla was announced; and (2) whether respondent’s conviction should have been reversed on the basis of a violation of Minn. R. Crim. P. 15.01, subd. 1(6)(1), which requires a district court before accepting a guilty plea to ensure that a non-citizen defendant understands that a guilty plea may result in deportation.  (Hennepin County)

Oscar Caldas, et al., Appellants v. Affordable Granite & Stone, Inc., Respondent, Dean Soltis, Defendant – Case No. A10-2173:  A Minneapolis city ordinance requires that every city contract include a provision allowing the city to withhold contract payments, or terminate the contract altogether, if the contractor pays its employees less than the prevailing wage.  In 2007, the city issued a request for proposals (RFP) to repair the terrazzo flooring at the Minneapolis Convention Center.  The RFP required bidders to certify that wages paid to employees for any work done under the contract would be no less than the prevailing wage.  Respondent Affordable Granite & Stone, Inc., was awarded the contract and certified to the city that it would comply with the ordinance by paying the prevailing wage. 

After the work was complete, appellants (all employees of respondent) sued respondent, claiming they had been paid less than the prevailing wage for the work at the convention center.  The district court dismissed appellants’ claim for breach of contract, concluding that appellants were not third-party beneficiaries who could enforce the contract between respondent employer and the city.  The court also dismissed appellants’ claim under the Minnesota Payment of Wages Act, Minn. Stat. § 181.13 (2010), concluding that the Payment of Wages Act does not create a substantive right to a particular wage and appellants had no independent claim for additional wages.  Finally, the court dismissed appellants’ claim for unjust enrichment.  The court of appeals affirmed the district court. 

Three issues are before the supreme court on the employees’ appeal:  (1) whether the Minnesota Payment of Wages Act, Minn. Stat. § 181.13, authorizes the recovery of wages here because such wages were actually earned; (2) whether employees can recover unpaid prevailing wages as third-party beneficiaries of a public contract that requires the employer to pay the prevailing wage; and (3) whether respondent employer was unjustly enriched by its actions.  (Hennepin County)

State of Minnesota, Respondent v. Amy Lynn Brist, Appellant – Case No. A10-0979:  Respondent State of Minnesota charged appellant Amy Brist with several felonies, including conspiracy to commit second-degree sale of a controlled substance.  The State alleged that Brist and her boyfriend conspired to sell methamphetamine to a person who—unbeknownst to Brist and her boyfriend—was a confidential police informant.   The police made an audio recording of one drug sale, during which Brist’s boyfriend handed the informant a quarter gram of methamphetamine, saying “Here’s the quarter that she owes ya.”  Brist’s boyfriend then sold the informant an additional gram of methamphetamine.

A jury trial was held, and Brist’s boyfriend was unavailable to testify at trial.  Over Brist’s objection, the district court admitted the audio recording of the drug sale into evidence.  After the jury found Brist guilty as charged, the district court convicted and sentenced Brist.  The court of appeals affirmed Brist’s conviction.

On appeal to the supreme court, the issue presented is whether the district court violated Brist’s right to confrontation when it admitted the audio recording containing a non-testifying co-conspirator’s unwitting statement to the police informant.  (Otter Tail County).
 

David and Melynda Quade, Respondents v. Secura Insurance, Appellant – Case No. A10-0714:  In July 2008, a storm with high winds caused extensive damage to buildings on the farm of respondents David and Melynda Quade.  The Quades were insured by appellant Secura Insurance under a Farmowners Protector Policy for direct physical loss to property caused by windstorms.  The policy excludes damage caused by faulty or inadequate maintenance of the property.  An appraisal clause in the policy provides that if the parties fail to agree on “the amount of loss,” either may demand “an appraisal of the loss.” 

The Quades submitted a claim to Secura for storm damage to several buildings.  Secura determined that damage to the roofs of three buildings resulted from continual deterioration over a period of time rather than a specific storm occurrence.  Consequently, Secura denied the claim for damage to the roofs based on the exclusion for damage caused by inadequate maintenance. 

The Quades initiated a breach-of-contract action against Secura.  The district court granted summary judgment to Secura.  The court concluded that determining the amount of loss under the appraisal clause includes a causation element.  Therefore, the court ordered the parties to participate in the appraisal process.  The Quades appealed, and the court of appeals reversed the district court’s grant of summary judgment. 

On appeal to the supreme court, the issue presented is whether a provision in a property casualty insurance policy providing that the parties are to engage in an appraisal process when they fail to agree on “the amount of the loss” requires the parties to submit a dispute to the appraisal process when they disagree on what caused the loss.  (Dakota County)

In re Petition for Disciplinary Action against Erin Marie Wolff, a Minnesota Attorney, Registration No. 285766 – Case No. A11-1358:  An attorney discipline case that presents the question of what discipline, if any, is appropriate based upon the facts of the matter.
 

            In Re:  Source Code Evidentiary Hearings in Implied Consent Matters  In Re:  Source Code Evidentiary Hearings in Criminal Matters – Case No. A11-0560:  Based on a January 11, 2010, order of the Minnesota Supreme Court, thousands of civil implied-consent and criminal DWI cases were consolidated before a single district court judge for the purpose of hearing and deciding pretrial challenges to the reliability of the Intoxilyzer 5000EN’s results based on the instrument’s source code.  After holding a multi-day evidentiary hearing, the district court issued an order and memorandum regarding the impact of the source code on the reliability of the Intoxilyzer’s results (“the Source Code Order”).  In the Source Code Order, the district court ruled, in part, that: (1) the results of breath alcohol testing conducted by the Intoxilyzer 5000EN are reliable and unaffected by actual or alleged problems with the source code or the instrument; (2) challenges to the Intoxilyzer 5000EN’s test results premised on problems with its source code are overruled, and evidence of such challenges should not be allowed; and (3) in the small number of cases in which the Intoxilyzer 5000EN is running a specific version of software and reported a “Deficient Sample,” the source code of the instrument does impact the reliability of this result, and evidence in such cases of a “Deficient Sample” test report should not be allowed unless other evidence exists which provides reasons and/or observations of testing that support the sample being deficient.

            Appellants, who are the criminal defendants and implied-consent petitioners in the consolidated Intoxilyzer-source-code-challenge cases, filed a petition for discretionary review of the Source Code Order with the court of appeals.  After the court of appeals granted the petition for discretionary review, the Minnesota Supreme Court granted a petition for accelerated review of the Source Code Order. 

            On appeal to the supreme court, three issues are presented:  (1) whether the district court applied the correct legal standard when it determined that the results of breath alcohol testing conducted by the Intoxilyzer 5000EN are reliable and overruled the challenges to the instrument’s test results based on alleged problems with its source code; (2) whether the district court denied appellants’ rights to due process and a fair trial by ruling that appellants cannot present evidence to their fact finders that certain Intoxilyzer 5000EN breath alcohol test results may be affected by source code errors; and (3) whether the district court erred in ruling that evidence of a “deficient sample” test result is admissible if other evidence supports the deficient sample result.  (Scott County)
 

Mattson Ridge, LLC, Respondent v. Clear Rock Title, LLP, et al., Appellants – Case No. A10-1483:     Respondent Mattson Ridge, LLC, a developer, bought a parcel of undeveloped real property in 2005 for approximately $1.2 million.  Mattson Ridge obtained title insurance from appellant Ticor Title Insurance Company through its agent, appellant Clear Rock Title, LLP (collectively, Ticor).  Mattson Ridge sought to resell the property, but a different title insurer declined to issue a policy based on a claimed ambiguity in the legal description of the property.  After Ticor denied coverage and declined to pay to modify the legal description, Mattson Ridge brought a declaratory judgment action against Ticor.  The district court granted summary judgment to Mattson Ridge on the issue of liability and subsequently awarded Mattson Ridge approximately $1.2 million in damages.  The court of appeals affirmed on Ticor’s liability, but it reversed the district court’s denial of lost-profit consequential damages. 

            On appeal to the supreme court, the issues presented are:  (1) whether the legal description of the property in the deed is ambiguous where it references adjoining property by identifying the adjoining owner by name; (2) whether the alleged ambiguity in the property description supports a conclusion that title was unmarketable; and (3) whether the property owner’s compensable loss under the title insurance policy is at most the cost to cure the purported defect in title.  (Chisago County)

State of Minnesota, Respondent v. Marlon Terrell Pratt, Appellant– Case No. A09-2323:  Appellant Marlon Pratt was charged with 17 counts of theft by swindle and two counts of racketeering.  Respondent State of Minnesota alleged that Pratt, through his employment at two mortgage-brokerage firms, procured more than $3 million from lenders by submitting loan applications containing materially false information for 17 homes.  On April 10, 2009, a retired district court judge was assigned to the case.  A jury trial began on May 27, 2009, and continued for the next several weeks.

At the end of the day on July 2, 2009, the State disclosed that the presiding judge had been retained in December 2008 by the Hennepin County Attorney’s Office as an expert witness in a federal lawsuit against the Hennepin County Medical Center, a doctor at the hospital, and a Minneapolis police officer.  The presiding judge attended one meeting with attorneys for the defendants in the civil case, at which the facts of the case were discussed and the presiding judge indicated what his opinion would be if called to testify.  In February 2009, a paralegal from the Hennepin County Attorney’s Office provided the presiding judge with materials for the case.  On June 30, 2009, the presiding judge was asked to begin preparing his expert report for this civil case, and later that day, the presiding judge told the attorney from the Hennepin County Attorney’s Office handling the matter that he could not work as an expert in the case.  The presiding judge later returned the materials for the civil case, which were unopened.

On July 8, 2009, Pratt served a motion to dismiss based on the presiding judge’s “undisclosed conflict of interest.”  The presiding judge denied this motion.  The chief district court judge later denied Pratt’s motion to disqualify the presiding judge.

Also on July 8, 2009, after Pratt had served his motion to dismiss, the jury returned verdicts finding Pratt guilty on all counts.  The next day, a Blakely hearing was held, and the jury returned special-verdict forms finding that each of the racketeering offenses were major economic crimes.  Pratt was sentenced to 120 months in prison on each of the racketeering convictions, which were upward durational departures, and to 39 months in prison for each of the theft-by-swindle convictions, all of which were to be served concurrently.  A divided court of appeals affirmed Pratt’s convictions, but it reversed, in part, his sentence.

On appeal to the supreme court, the following issues are presented:  (1) whether Pratt’s convictions must be reversed because the presiding judge was simultaneously employed as an expert witness in an unrelated civil case by the same county attorney’s office that was prosecuting Pratt; (2)  whether the evidence was insufficient as a matter of law to support Pratt’s convictions; (3) whether Pratt is entitled to a new trial because the district court erroneously instructed the jury that loan funds constituted “property or services” for purposes of the theft-by-swindle statute;  (4) whether Pratt is entitled to a new trial because the district court failed to instruct the jury, with respect to the racketeering charges, on the legal definition of an enterprise; (5) whether Pratt is entitled to a new trial because the jury returned legally inconsistent verdicts on the theft-by-swindle counts; and (6) whether the district court improperly imposed an upward durational departure on Pratt’s sentences for racketeering.  (Hennepin County)
 

Rick Glorvigen, as Trustee for the next-of-kin of decedent James Kosak, Appellant/Cross-Respondent, Thomas M. Gartland, as Trustee for the next-of-kin of decedent Gary R. Prokop, Appellant/Cross-Respondent v. Cirrus Design Corporation, Respondent/Cross-Appellant, Estate of Gary Prokop by and through Katherine Prokop, as Personal Representative, Appellant/Cross-Respondent, University of North Dakota Aerospace Foundation, Respondent/Cross-Appellant – Case Nos. A10-1242, A10-1243, A10-1246, A10-1247:  Gary Prokop and James Kosak were killed in an airplane crash near Hill City, Minnesota.  At the time of the crash, Prokop was piloting a Cirrus SR22 aircraft.  The trustees for the next-of-kin of Prokop and Kosak commenced wrongful death actions against Cirrus Design Corporation.  University of North Dakota Aerospace Foundation (UNDAF), which provided transition training to Prokop, later intervened in the action.  A jury trial took place, which focused on whether Cirrus and UNDAF provided adequate training.  The jury apportioned a total of 75% negligence to Cirrus and UNDAF, and 25% to Prokop, and the district court denied the post-trial motions of Cirrus and UNDAF.  On appeal, a divided court of appeals reversed, concluding that Cirrus did not have a duty to provide pilot training to Prokop, and therefore, negligence liability could not attach.  The court of appeals also concluded that the negligence claims were noncognizable because they sounded in educational malpractice. 

On appeal to the supreme court, the issues presented are:  (1) whether Cirrus and UNDAF had or assumed a duty to act with reasonable care in the sale of and provision of instruction concerning the aircraft; (2) whether the educational malpractice doctrine bars the wrongful death claims; (3) whether the plaintiffs established a triable issue on causation; and (4) whether judgment was proper against intervenor UNDAF.  (Itasca County)

In re Petition for Disciplinary Action against Steven Paul Lundeen, a Minnesota Attorney, Registration No. 273776 – Case No. A11-0896:  An attorney discipline case that presents the question of what discipline, if any, is appropriate based upon the facts of the matter. (Stricken from December calendar by Nov. 17, 2011, order.  To be rescheduled on a future calendar.)

Non-Oral: Kenneth Eugene Andersen, Jr., petitioner, Appellant v. State of Minnesota, Respondent – Case No. A11-0541:  Following a jury trial, appellant Kenneth Andersen, Jr. was convicted of first-degree murder in 2008.  The Minnesota Supreme Court affirmed that conviction on direct appeal.  In December 2010, Andersen filed a petition for postconviction relief.  The district court summarily denied the postconviction petition.

On appeal to the supreme court, the issue presented is whether the district court abused its discretion in summarily denying Andersen’s petition for postconviction relief because the issues Andersen raised were not procedurally barred and the petition alleged facts that, if true, would entitle Andersen to relief.    (Becker County)