Sep '01 Issue
MSBA Home Page
at the time of publication. --Ed.
Insufficiency of Service -- Waiver and Estoppel. In
1996, a mother and daughter commenced separate lawsuits for injuries
suffered when they were rear-ended by defendant. After unsuccessful
attempts to serve the defendant personally, both plaintiffs attempted
service of process under Minn. Stat. ¤ 170.55 by filing
a copy of their respective complaints with the commissioner of
public safety. Defendant answered both complaints, alleging that
service of process was "inadequate and incomplete."
It is undisputed that service was insufficient. In the mother's
case, defendant never again raised the insufficient service of
process defense in the course of the lawsuit and the case went
to trial. The jury returned a verdict for the mother. Meanwhile,
the daughter did not pursue her case for over two years. Then
in 1999, the daughter finally filed her case and defendant moved
to dismiss for insufficiency of service of process.
-- Cynthia Jokela Moyer
Sentence: Conditional Release: Sex Offender: Separation
of Powers. The delegation of conditional release to the commissioner
of corrections does not violate the separation of powers provision
of the Minnesota Constitution. Although the commissioner of corrections
has adopted rule-setting standards and procedures for granting
or revoking conditional release, such an exercise of power by
the Executive Branch does not usurp the power of the Judiciary
because it does not alter the original sentence of the court,
but merely executes a condition set by the court for the offender¹s
commitment to the commissioner. State v. Jason DeWayne
Schwartz, 628 N.W.2d 134 (Minn. filed 6/28/01).
-- Frederic Bruno
Takings Claims. The United States Supreme Court removed
some of the historic boundaries that have prevented landowners
and developers from challenging governmental land use regulations
in a fractured decision issued June 28, 2001.
Mitigation Measures -- Environmental Impact Statement.
A responsible governmental unit (RGU) may not rely on the existence
of regulatory mitigation requirements in order to avoid ordering
an environmental impact statement (EIS) if the efficacy of those
requirements is in doubt. The Minnesota Pollution Control Agency
(MPCA) had previously determined that a project-specific EIS
was not necessary for a proposal by Boise Cascade Corporation
to expand its timber operations near International Falls. In
reaching this conclusion, the MPCA relied on a determination
by the Department of Natural Resources (DNR) that the level of
harvesting under Boise's proposal was consistent with that previously
analyzed under a statewide generic environmental impact statement
(GEIS) between 1989-1994. The MPCA incorporated this determination
into its decision that no EIS was necessary because the mitigation
efforts identified in the GEIS were sufficient to control any
environmental impacts of Boise's specific proposal.
-- William Hefner
Reopen Decree. The parties' decree was based on a marital
termination agreement (MTA) containing a full disclosure clause.
When the pro se husband discovered that the wife had an
investment account valued at $26,000 and her retirement account
was valued at over $1 million, he moved to reopen and to amend
child support within one year. Reopening was denied on August
18, but amendment of support was not granted until January 12,
2001. The Court of Appeals found that the husband timely appealed
because the first order was a partial judgment and final judgment
was not entered until entry of the support order. It also found
that the district court had applied too strict a standard on
the fraud issue by requiring the husband to show both fraud on
the court and fraud on the opposing party. That finding was based
on the Supreme Court's holding that, on a motion to reopen within
one year, the legal standard is ordinary fraud which does not
require an affirmative misrepresentation or an intentional course
of concealment because, in dissolution, the parties have a duty
to disclose completely and accurately. The court added that this
duty was reinforced by the full disclosure clause in the MTA.
-- Hon. Eugene L. Kubes
Removal; Multiple Defendants; Timeliness. Plaintiffs
sued multiple defendants in the Missouri state courts. Two defendants
were served on February 1, 2000, and two other defendants were
served on February 3, 2000. On March 3, 2000, 29 days after the
latter service, all five defendants (including a defendant who
had not yet been served) jointly filed a Notice of Removal. Plaintiffs
then moved to remand the action, arguing that the Notice of Removal
had not been filed within 30 days of service on the first group
of defendants. The district court denied the motion, find that
each defendant was entitled to 30 days following service upon
it to file a Notice of Removal.
-- Josh Jacobson
Design Copyright; "Substantial Similarity". In Thimbleberries,
Inc. v. C&F Enterprises, Inc., et al., Judge Doty preliminarily
enjoined the defendants from using a design too similar to Thimbleberries'
copyrighted "Countryside Wreath" because the designs
were so strikingly similar that it precluded the possibility
that the defendants arrived at the same result independently.
The "Countryside Wreath" design includes a Christmas
tree adorned with a bow flanked by four triangles and an exterior
wreath shape constructed of triangles and squares. When the wreath
design appeared on table linens in the defendants' catalog, Thimbleberries
sued the defendants for copyright infringement and moved for
preliminary injunction -- the latter being traditionally difficult
to obtain in copyright cases.
-- Anthony R. Zeuli
Adoption. In the first court ruling to fully examine the rights of children to sue under the Adoption and Safe Families Act of 1997 (ASFA) a Wisconsin federal judge ruled in a class action lawsuit that children in foster care have enforceable federal rights to a speedy adoption and can sue the state for failing to make children legally available for adoption so they can be placed in an adoptive home. This ruling will impact children nationwide as rights to a speedy adoption are within the competency of the federal courts to enforce. Jeanine B. v. Scott McCallum, No. 93-C-0547, 2001 WL 748062 (E.D. Wis., 2001). Opinion by the Honorable Rudolph T. Randa.
-- Nathalie S. Rabuse
Trustees; Duty to Diversify Investments; Liability.
James Williams' will created a trust that consisted almost exclusively
of Creamette stock from his death in 1951 until the company's
acquisition by Borden, Inc. in 1979. The trust owned and operated
Creamette during that period. Beginning in 1980 the trustees
began to diversify trust assets, and by December 31, 1989, Borden
stock made up 39.3 percent of the value of the trust. The district
court in a prior proceeding approved the trustees' accounts through
-- Curtis L. Stine
Deed Reformation. Deming conveyed a parcel of land
to Harms with a deed containing a defective legal description.
The Schermas purchased the Harms parcel and later learned of
the discrepancy in the legal description giving Schermas 13.2
more acres of land. Deming commenced a quiet title action to
reform the deed. The Court of Appeals found that a written instrument
may be reformed if it is shown there is a valid agreement that
failed to express the true intent of the parties as a result
of a mutual mistake or unilateral mistake accompanied with fraud.
However, reformation will not be granted if it may prejudice
a bona fide purchaser or innocent third party. Because the legal
description did not reflect the intent of all parties, mutual
mistake exists. Furthermore, the reformation did not harm Schermas
since they had implied notice of the defect, thus the deed was
reformed. Finally, the court held that Deming did not unreasonably
delay the lawsuit causing prejudice to Schermas, so the doctrine
of laches did not apply. Deming v. Scherma et al.
C1-00-1906, 2001 WL 741427 (Minn. App. 7/3/01)(unpublished).
-- Melissa Baer
Personal Income Tax: Division of Retirement Assets; Marital
Property Award. The Supreme Court upheld a trial court's
discretion to consider the income tax consequences of a marital
property award of proceeds from retirement plans in a divorce
action. The Court rejected the argument that the consideration
of income tax consequences constituted impermissible speculation
unless the liquidation was required or was mandated within a
short period of time after the divorce. In Re the Marriage
of Mauer v. Mauer, 623 N.W.2d 604 (Minn. 2001).
Omnibus Tax Bill. After much wrangling, the Legislature
and the governor agreed on a tax bill for 2001. Special Session
Chapter 5 (H.F. 1 and S.F. 13). Major items in the law are:
Health Care Tax.
New Federal Tax Breaks: Charitable Giving. The faith-based bill titled Community Solutions Act (H.F. 7) contains several tax incentives for charitable giving. The bill would enable religious organizations to be eligible for federal grants for assisting the poor and homeless. The most controversial portion of the bill is an exemption for religious organizations from state and federal laws against discrimination. The nine tax-related charitable provisions included in H.F. 7 are:
-- Jerry Geis
Medical Malpractice - Statute of Limitations. The new
four-year statute of limitations that applies to medical negligence
claims commenced on or after August 1, 1999, does not apply retroactively
to revive a claim that was time-barred prior to the effective
date of the new statute. Morton v. Dyste, No. C4-00-2046,
627 N.W.2d 734 (Minn. App. 6/12/01).
-- Michael Klutho