text:
    Adl EL-SHABAZZ, f/k/a A.C. Ford, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2205.
    Supreme Court of Minnesota.
    Aug. 7, 2008.

      Jordan S. Kushner, Minneapolis, MN, for appellant.
    Lori Swanson, Atty. Gen., St. Paul, MN, Michael 0. Freeman, Hennepin County Atty., Donna J. Wolfson, Asst. County Atty., Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

Appellant Adi El-Shabazz (El-Shabazz), formerly known as A.C. Ford, appeals the postconviction court’s summary denial of his petition for postconviction relief. We affirm.

On September 25, 1992, Minneapolis Police Officer Jerome Haaf was shot to death by two or three young males at the Pizza Shack restaurant in south Minneapolis. State v. Ford, 539 N.W.2d 214, 219 (Minn.1995).

At trial, several witnesses testified for the State. Dawn Jones, the girlfriend of one of the men involved, testified that she was present when El-Shabazz, Monterey Willis (Monterey), Mwati “Pepi” McKenzie, Shannon Bowles, and Samuel “Sharif’ Willis (Sharif) discussed a plan to shoot a bus driver or a police officer. Id. at 218. Richard, a minor, testified that he met up with El-Shabazz, McKenzie, Bowles, Mon-terey, and Jones the night of the shooting. Id. He further testified that El-Shabazz first asked if everyone was ready to go shoot a bus driver. Id. El-Shabazz then suggested they go “do the Pizza Shack.” Id. According to Richard, El-Shabazz gave a gun to McKenzie. Id. El-Shabazz then drove Bowles and Monterey in a truck, and Richard and McKenzie rode together in a car. Id. At a corner near the Pizza Shack, McKenzie and Bowles got out of the vehicles and walked toward the restaurant. Id. at 219. As instructed by El-Shabazz, Richard circled the block to pick up McKenzie and Bowles but did not see them. Id. He found them at the house of Ed Harris, an acquaintance. Id. McKenzie then told Richard that he shot a cop. Id. Harris’s wife, Loverine Harris, testified that her husband provided a change of clothes for McKenzie and Bowles. Id.

McKenzie went to Chicago after the murder. Id. According to Wyvonia Williams, he became afraid for his life and admitted details of the shooting to Williams. Among the details he shared were that Sharif ordered the hit on the police officer and that El-Shabazz was in charge of carrying out the hit. Id. McKenzie also told Williams that he rode with El-Shabazz and Monterey to the Pizza Shack. Id. Other evidence admitted against El-Shabazz included a letter Bowles wrote to El-Shabazz, stating “I’m not V. Lord. This breaks our link of me and you, also that statement of you giving me orders about whatever. * * * I was nowhere around you that night. [Richard] is saying these things to clear himself in the Harris killing. He doesn’t know me.” Id. at 220. Two weeks after Officer Haaf s murder, Ed Harris was shot and killed. Id. Police believed other Vice Lords had murdered him to prevent him from leaking information about the Haaf murder. Id.

On his direct appeal, El-Shabazz asserted that the district court erred by (1) impaneling an anonymous jury; (2) admitting statements made to the police; (3) admitting the hearsay testimony of Wyvo-nia Williams; (4) refusing to allow El-Shabazz to cross-examine a witness regarding a withdrawn plea agreement; (5) sustaining the State’s Batson challenge; and (6) imposing a sentence that was contrary to law. Id. at 217. He also claimed that the evidence was insufficient to support the jury’s verdicts and that the prosecutor committed misconduct during closing arguments. Id. We concluded that the admission of Williams’ testimony was harmless error. Id. at 227. We affirmed El-Shabazz’s conviction, but reversed and remanded on one of the sentencing issues. Id. at 231. The district court then sentenced El-Shabazz to consecutive sentences of life imprisonment and 20 years. Ford v. State (Ford II), 690 N.W.2d 706, 708 n. 1 (Minn.2005).

El-Shabazz filed two petitions for post-conviction relief, but did not perfect his appeal of the court’s denial of the claims presented in each petition. Id. at 708. El-Shabazz filed a third petition for post-conviction relief, which the postconviction court denied on March 27, 2003. Id. El-Shabazz then filed a motion to amend the third petition on November 20, 2003, and the postconviction court treated the motion as a fourth petition. Id. In it, El-Shabazz claimed that two instances of communication between the judge and jury during jury deliberations, without El-Shabazz’s presence or his waiver of the right to be present, violated his right to be present. Id. at 710. The postconyietion court denied relief without an evidentiary hearing, and El-Shabazz appealed the denial of both his third and fourth petitions. Id. at 708. We concluded that (1) we did not have jurisdiction over his untimely appeal from the denial of the third petition; (2) El-Shabazz’s claim of error regarding the first communication between the judge and jury was procedurally barred; (3) the second communication between the judge and jury related to “housekeeping” and not substantive issues and, therefore, did not violate El-Shabazz’s right to be present; and (4) the postconviction court did not err in denying relief without a hearing. Id. at 709-13.

In his fifth pro se petition for postcon-viction relief filed July 26, 2007, El-Sha-bazz sought relief due to (1) ineffective assistance of counsel because his counsel waived the right for El-Shabazz to be present during the communications between the judge and jury; (2) prosecutorial misconduct in allowing perjured testimony and not disclosing evidence relating to inducements provided to witnesses; and (3) two communications between the judge and jury during jury deliberations. On July 27, 2007, El-Shabazz’s counsel submitted a supplemental petition arguing that El-Shabazz is entitled to postconviction relief in light of several of our subsequent decisions. On appeal, counsel specifically argues that our decisions in State v. Juarez, 572 N.W.2d 286 (Minn.1997), and Townsend v. State (Townsend II), 646 N.W.2d 218 (Minn.2002), which were decided after El-Shabazz’s conviction, applied a “stricter” standard for evaluating harmless error.

The postconviction court denied the petition in September 2007, concluding that the claims had all been raised and denied in previous petitions and on appeal. Nonetheless, the court considered whether El-Shabazz’s earlier claim based on Williams’ testimony merited relief under the stricter Juarez/Townsend II harmless error standard and concluded that the erroneous admission of the testimony was still harmless under that standard. El-Shabazz appealed. We affirm.

Under Minn.Stat. § 590.01 (2006), a petitioner may commence a proceeding for postconviction relief if he claims that his conviction violated the Constitution or state laws. However, “[o]nce a direct appeal has been taken, all claims raised in that appeal, all claims known at the time of that appeal, and all claims that should have been known at the time of that appeal will not be considered in a subsequent petition for postconviction relief.” Leake v. State, 737 N.W.2d 531, 535 (Minn.2007) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). There are two exceptions: (1) when an issue is “so novel that there was no legal basis for the claim at the time of appeal,” Sutherlin v. State, 574 N.W.2d 428, 432 (Minn.1998), and (2) “ % limited situations when fairness so requires and when the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal.’ ” Id. (quoting Russell v. State, 562 N.W.2d 670, 672 (Minn.1997)).

When reviewing postconviction proceedings, we have an “obligation to extend a broad review of both questions of law and fact.” Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (internal quotation marks omitted). We review legal issues de novo, but the review of factual matters is limited to “whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id. A petitioner has the burden of establishing by a preponderance of the evidence facts that would warrant relief. State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993).

I.

In order to address El-Shabazz’s argument that he is entitled to retroactive application of the stricter Juarez/Townsend II harmless error standard, we must first consider the history of both his case and the Juarez and Townsend opinions.

On direct appeal, we concluded that Williams’ hearsay testimony should have been suppressed because it did not qualify as an exception to the hearsay rule as a statement against penal interest. Ford, 539 N.W.2d at 227. In concluding that admitting Williams’ testimony was harmless error, we said that

Id. (Citations omitted.) We applied this harmless error test in State v. Townsend (Townsend I), 546 N.W.2d 292, 297 (Minn.1996) (“‘Harmless beyond a reasonable doubt’ does not mean there must be absolutely no doubt of guilt, rather it means that the weight of all the other evidence is such that it ‘justifies the verdict regardless of the erroneous admission * * ” (quoting Ford, 539 N.W.2d at 227)).

[t]he trial court’s error in admitting Wy-vonia Williams’ statements relating to [El-Shabazz] require[s] reversal only if the admission was not harmless beyond a reasonable doubt. In the past where we have found the weight of the evidence is so great that it justifies the verdict regardless of the erroneous admission, we have concluded the erroneous admission was harmless. Similarly, in this case, we conclude that the weight of the evidence is so great that the admission of this information was at most harmless.

Subsequently, in Juarez, 572 N.W.2d at 291 n. 6, we commented that

on occasion we have inadvertently misstated the significance of the strength of the evidence of guilt in harmless error analysis. An example is our decision in Townsend * * *. To the extent that decision, or any other decision of this court or the court of appeals, misstates the significance of the strength of the evidence in harmless error analysis, the decision should not be followed.

(Citation omitted.) We applied the following standard to the facts of that case, which involved the erroneous admission of the defendant’s statement that he would “have to get a lawyer next”: “If the verdict rendered is ‘surely unattributable’ to the error, then the error is harmless beyond a reasonable doubt and the conviction stands.” Id. at 292.

After Juarez was decided, Townsend sought a writ of habeas corpus, which the district court treated as a petition for post-conviction relief, seeking application of a different standard for harmless error than had been applied in his direct appeal. Townsend II, 646 N.W.2d at 219. We noted in Townsend II that in Juarez we said we “[had] inadvertently misstated the significance of the strength of the evidence of guilt in harmless error analysis” in Townsend I. Id. at 222. We therefore proceeded to apply the stricter Juarez standard. Id. at 223. We considered “the manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether the defense effectively countered it” before concluding that “the verdict was surely unattributable to the wrongfully admitted evidence.” Id.

El-Shabazz now argues that the district court’s error in admitting Williams’ hearsay testimony should be reviewed again under what he asserts is a new standard of harmless error. He asserts that our 1995 decision in Ford is invalid due to the subsequent cases acknowledging inadvertent misstatement of the harmless error standard. He requests that we reconsider the decision in the same way we reconsidered harmless error under the stricter standard in Townsend II. He asserts that he did not deliberately and inexcusably fail to raise this issue in prior petitions because “[t]he law was still developing at the time.”

We conclude that El-Shabazz’s argument is procedurally barred by Knaffla, 309 Minn, at 252, 243 N.W.2d at 741. El-Shabazz filed three postconviction petitions (not including this one) after Juarez was decided in December of 1997. Two of the three petitions were filed after Townsend II was decided in June of 2002. Therefore, El-Shabazz knew or should have known of any arguments related to the stricter standard, and any claims should have been raised in previous appeals. Furthermore, El-Shabazz has not shown that either Knaffla exception applies.

El-Shabazz claims that two cases, State v. Al-Naseer, 690 N.W.2d 744 (Minn.2005), and State v. Caulfield, 722 N.W.2d 304 (Minn.2006), continued to develop the new rule, thereby postdating his earlier petitions. However, examination of those two cases shows that neither case did anything more than provide more thorough analysis and application of the factors enunciated in Juarez and Townsend II.

Even if we assumed for the sake of argument that the stricter Juarez/Townsend II harmless error standard should be applied in the interests of fairness and justice, El-Shabazz’s claim would fail on its merits. In reviewing whether the admission of inadmissible evidence was harmless error, we consider whether (1) the evidence was presented in a manner that gave it significant focus; (2) the State dwelled on the evidence in opening and closing arguments or in examining witnesses; and (3) the evidence was either highly persuasive or circumstantial. Caul-field, 722 N.W.2d at 317.

El-Shabazz argues that we cannot conclude that the admission of Williams’ testimony was harmless error because (1) only Williams and a juvenile witness provided direct evidence of El-Shabazz’s involvement in the murder; (2) Williams’ testimony undermined the defense’s theory that Sharif set El-Shabazz up to take' the blame for the murder; (3) Williams was “a particularly credible and damaging witness”; and (4) the prosecutor referred to Williams’ testimony in closing argument.

We do not agree. Williams’ testimony clearly was not from her own personal knowledge, was baséd on information received from an emotionally reactive participant in the murder (McKenzie, who was scared other Vice Lords were going to kill him), conflicted with other witnesses’ descriptions of details at trial, and was referenced in the closing only briefly, along with a review of the testimony of numerous witnesses. At trial, the juvenile witness was the State’s major witness who was a participant and had direct information of El-Shabazz’s involvement. The defense arguably effectively countered Williams’ testimony by clarifying her lack of personal knowledge and by pointing out inconsistencies between her testimony and the testimony of the juvenile witness. Finally, the other evidence of guilt was strong. As the State notes, we upheld a challenge to the sufficiency of the evidence on direct appeal, noting there was direct evidence from one witness that El-Sha-bazz participated in a plan to shoot an officer, which was corroborated by numerous other witnesses, not including Williams. Ford, 539 N.W.2d at 225-26.

Therefore, even if El-Shabazz’s argument that his case should be reconsidered under a stricter Juarez/Townsend II harmless error standard was not procedurally barred, we conclude that the admission of Williams’ testimony would remain harmless error. We hold that El-Shabazz is not entitled to postconviction relief based on the admission of Williams’ testimony.

II.

El-Shabazz also asserts that the postconviction court erred in failing to grant relief for the prosecution’s failure to disclose inducements provided to two of the State’s witnesses, Loverine Harris and Eugene McDaniels. Our review of the record leads us to conclude that this claim was known to El-Shabazz prior to this appeal but was not raised successfully. El-Shabazz raised this claim in whole or in part in his first, second, and third postcon-viction petitions. El-Shabazz did not perfect appeals for the denials of his first three petitions. Therefore, El-Shabazz’s argument that the prosecution failed to disclose favorable, impeaching evidence is Knaffla-barred, 309 Minn, at 252, 243 N.W.2d at 741. El-Shabazz raises no legally novel claims, and it is not apparent that there are any interests of justice that merit our consideration of his arguments.

III.

Finally, we address El-Shabazz’s contention that the postconviction court erred by failing to hold an evidentiary hearing on his claims. Generally, a court must hold a hearing on a postconviction petition unless “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” MinmStat. § 590.04, subd. 1 (2006). If no material facts are in dispute, then the court need not hold an evidentia-ry hearing. Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995).

Here, El-Shabazz’s claims are barred by the Knaffla rule and are meritless. Therefore, no evidentiary hearing was required, as the files and records conclusively show that El-Shabazz is not entitled to relief. Accordingly, we hold that the post-conviction court did not err in summarily denying El-Shabazz’s claims.'

Because El-Shabazz has failed to show that he is entitled to postconviction relief on any of his claims, we affirm his conviction.

Affirmed.

MAGNUSON, C.J., not having been a member of this court at the time of the submission, took no part in the consideration or decision of this case.

GILDEA, J., took no part in the consideration or decision of this case.

      . The facts surrounding the murder are detailed in our opinions affirming El-Shabazz's conviction on direct appeal, State v. Ford, 539 N.W.2d 214 (Minn.1995), and affirming the denial of El-Shabazz's fourth petition for postconviction relief, Ford v. State (Ford II), 690 N.W.2d 706 (Minn.2005).

      . El-Shabazz’s argument that two communications between the judge and jury during jury deliberations entitle him to postconviction relief is a claim we considered and rejected on his appeal from the denial of his fourth postconviction petition. Ford II, 690 N.W.2d at 710-13. Because his argument for ineffective assistance of counsel is based on his counsel’s waiver of El-Shabazz’s right to be present at a judge-jury communication, an argument that is both procedurally barred and meritless, his claim for ineffective assistance of counsel also fails. See Wilson v. State, 582 N.W.2d 882, 885 (Minn.1998) (stating that a petitioner is entitled to a hearing to develop the facts supporting his ineffective assistance claims only if he alleged facts that would “affirmatively show that his attorney’s representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different”).

      . El-Shabazz further asserts that his prior petitions were pro se and he therefore did not have the benefit of legal counsel "to enable him to raise this evolving and esoteric legal issue.” However, we have never recognized a litigant's pro se status as a basis for satisfying the "interests of justice” exception to a Knaffla-bsirred claim, and we reject El-Sha-bazz's claim that this issue was beyond his grasp as a pro se litigant.

      . El-Shabazz also argues that the stricter Juarez/Townsend II standard sets forth a new interpretation of harmless error and therefore is a watershed rule that should be applied retroactively to his case. However, neither Juarez nor Townsend II involves a new interpretation or law. The decision to apply a standard requiring consideration of factors other than just whether the overwhelming evidence of guilt was sufficient to outweigh the error was based in large part on our precedent, notably State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747-48 (1973). Juarez, 572 N.W.2d at 292. As we noted in Juarez, we were "clarify[ing]” the standard for harmless error. 572 N.W.2d at 291. Because we have not announced a new rule, El-Shabazz cannot overcome the "principle of finality which is essential to the operation of our criminal justice system.” Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

      . In his pro se supplemental brief, El-Sha-bazz also claims that the prosecution failed to disclose that another witness, Percy Melton, was a paid government informant-witness in an unrelated murder trial. However, El-Sha-bazz did not raise this claim in his postconviction petition, and it was not considered by the postconviction court. Therefore, we decline to address the argument here.


source: Caselaw Access Project

author: MEYER, Justice.

license: Public Domain

text:
    SHAMROCK DEVELOPMENT, INC., Respondent, v. Randall N. SMITH, Appellant, Denison E. Smith, Defendant, Dakota Turkey Farms, Limited Partnership, Defendant.
    No. A06-1647.
    Supreme Court of Minnesota.
    Aug. 7, 2008.

      Timothy J. Mattson, Charles Schoenwet-ter, Bowman and Brooke LLP, Minneapolis, MN, for appellant.
    Charles E. Lundberg, Stanford P. Hill, David A. Turner, Bassford Remele, PA, Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

In this appeal, we are asked to decide whether respondent Shamrock Development, Inc.’s attempted service of process by publication on appellant Randall Smith satisfied the requirements of Minn. R. Civ. P. 4.04(a) and the Due Process Clause of the United States Constitution. The district court concluded that the service by publication was sufficient, and the court of appeals affirmed. We reverse and remand to the district court.

In April 1996 the Hennepin County District Court entered a civil judgment in favor of Farm Credit Leasing Services Corporation (Farm Credit) against Dakota Turkey Farms limited partnership (the partnership) and certain individual partners, including Randall N. Smith. In connection with this judgment, Farm Credit filed with the district court an affidavit of identification of judgment .debtor that identified Randall Smith’s residential address in Washington, D.C., and his business address in Arlington, Virginia. A similar affidavit identified an address in Medina, Minnesota, as both the residential and business address of one of the other partners; the same Medina street address was also registered with the Secretary of State as the partnership’s address. Farm Credit’s judgment was subsequently assigned to Shamrock Development, Inc. (Shamrock). The record indicates that Shamrock requested and was mailed a copy of the' entire district court file in October 2002.

In 2006 Shamrock decided to renew its judgment by commencing a new civil action against the judgment debtors. On March 19 Shamrock attempted to serve the partnership with process at the Medina address but discovered that the address is a private home and that the current owner was not associated with the partnership. Shamrock subsequently effected service of process on the partnership by serving the Secretary of State as provided by Minn.Stat. § 5.25 (Supp.2007).

Shamrock attempted to locate Randall Smith, an individual judgment creditor, using an online database. Despite the affidavit of identification indicating that Smith resided in Washington, D.C., and had a business address in Virginia, the record suggests that Shamrock limited its database search for Smith to the Medina address. The results indicated that Smith was associated with the Medina address in some manner from April 1996 through October 2000 and listed him as a “Possible Previous Resident! ]” of the address; the results also listed the partnership as a “Possible Previous Business! ]” associated with the address. Knowing that Smith did not currently reside at the Medina address, Shamrock then attempted to locate him by searching bankruptcy filings and hiring a private investigator. These efforts were also unsuccessful. According to Smith, he resided in Washington, D.C., from 1981 through 1997; in Sunny Isles, Florida, from 1998 through 2000; and in Los Angeles, California, since 2001.

Having failed to locate Smith, Shamrock decided to commence service by publication pursuant to Minn. R. Civ. P. 4.04(a). On March 22, 2006, Shamrock’s attorney— David Turner — filed with the district court a copy of the summons and complaint and an affidavit regarding service by publication. In this affidavit, Turner made the following statements: “Defendant Randall N. Smith is a resident individual domiciliary who has departed from the State of Minnesota with intent to defraud creditors, or to avoid service, or remains concealed within with the like intent”; “I believe that ⅜ * * Defendant Randall N. Smith [is] not [a] resident! ] of the State of Minnesota or cannot be found therein”; and “I do not know * * * Randall N. Smith’s place! ] of residence or address! ] for service of process.” Shamrock subsequently caused the summons to be published in Finance and Commerce, a Minneapolis business and legal newspaper, on March 24, March 31, and April 7, 2006.

Smith made a limited and special appearance and moved to dismiss the claims against him because, inter alia, (1) service by publication was not sufficient because he is not a resident individual domiciliary of Minnesota; and (2) the publication in this ease was not “reasonably calculated” to apprise him of the pendency of the action and therefore violated his due process rights. Smith also moved to strike the Turner affidavit pursuant to Minn. R. Civ. P. 12.06.

The district court denied Smith’s motion to dismiss. The court reasoned as follows:

[Minnesota law] do[es] not require the plaintiff to actually prove the underlying facts in order for service by publication to be valid. An affidavit forming the basis for service by publication need only be made honestly and in good faith by the plaintiff based on the information available to the plaintiff at the time the affidavit is made. If an .affidavit is made in good faith by the plaintiff and the plaintiffs attorney alleging the necessary facts under the applicable law or rule (such as 4.04), then service by publication is valid unless the defendant can prove that the plaintiff could have found the defendant through the exercise of ordinary diligence.

(Citations omitted.) The court concluded that Shamrock had a good-faith basis to believe that Smith was a Minnesota resident, that Shamrock had made a diligent effort to locate him, and that Shamrock had therefore met the requirements for service by publication under Rule 4.04. The court did not address Smith’s argument that the publication violated his due process rights. The court of appeals affirmed. Shamrock Dev., Inc. v. Smith, 737 N.W.2d 372, 374, 381 (Minn.App.2007).

I.

We first consider whether Smith waived his jurisdictional defense by moving to strike the Turner affidavit regarding service by publication and by collaterally attacking the underlying 1996 judgment. A party may waive a jurisdictional defense, including insufficient service of process, by submitting itself to the court’s jurisdiction and affirmatively invoking the court’s power. See, e.g., Miss. Valley Dev. Corp. v. Colonial Enters., Inc., 300 Minn. 66, 71-73, 217 N.W.2d 760, 763-64 (1974). But “simple participation in the litigation * * * does not, standing alone, amount to waiver of a jurisdictional defense. Rather, it is the failure to provide the court an opportunity to rule on the defense before affirmatively invoking the court’s jurisdiction on the merits of the claim that is determinative.” Patterson v. Wu Family Corp., 608 N.W.2d 863, 868 (Minn.2000). “Where a party simultaneously invokes the court’s jurisdiction on the merits and asks the court to rule on a jurisdictional defense, waiver will not result unless other circumstances clearly demonstrate the party’s acquiescence to the court’s jurisdiction.” Ryan Contracting, Inc. v. JAG Invs., Inc.; 634 N.W.2d 176, 185 (Minn.2001), overruled on other grounds by Mavco, Inc. v. Eggink, 739 N.W.2d 148, 157 (Minn.2007); see also Minn. R. Civ. P. 12.02 (“No defense or objection is waived by being joined with one or more defenses or objections in a responsive pleading or motion.”).

Smith’s motion to strike the Turner affidavit and his arguments against the enforcement of the original 1996 judgment occurred at the same time- he was asking the court to rule on his insufficient service of process defense. The motion itself also indicated that Smith was not acquiescing to the court’s jurisdiction: “[njothing in [the motion] should be construed as an admission that a general appearance consenting to the full jurisdiction of this Court has been made.” Finally, during oral argument on the motion, Smith’s attorney stated that “from day one we have always maintained there is no jurisdiction because service of process has been a nullity, it’s been ineffective.” Thus, Smith’s motion to strike the Turner affidavit and argument opposing the enforcement of the original judgment occurred simultaneously with his ineffective service of process arguments, and the surrounding circumstances do not demonstrate his acquiescence to the court’s jurisdiction. We therefore conclude that Smith did not waive his ineffective service of process defense.

II.

We turn to the merits of Smith’s argument that service of process by publication was ineffective in this case. Both the district court and the court of appeals concluded that Rule 4.04(a) requires a good-faith allegation that the jurisdictional facts exist in order for service by publication to be valid, not that the jurisdictional facts actually exist. See Shamrock, 737 N.W.2d at 379. Smith argues that service by publication is sufficient under Rule 4.04(a) only if the jurisdictional facts actually exist.

Whether service of process was effective, and personal jurisdiction therefore exists, is a question of law that we review de novo. Roehrdanz v. Brill, 682 N.W.2d 626, 629 (Minn.2004); Patterson, 608 N.W.2d at 866. But in conducting this review, we must apply the facts as found by the district court unless those factual findings are clearly erroneous. Minn. R. Civ. P. 52.01; see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (“On appeal, a trial court’s findings of fact are given great deference, and shall not be set aside unless clearly erroneous.”).

We also review the construction and application of the Minnesota Rules of Civil Procedure de novo. St. Croix Dev., LLC v. Gossman, 735 N.W.2d 320, 324 (Minn.2007); Mingen v. Mingen, 679 N.W.2d 724, 727 (Minn.2004). “The words of a court rule, like those of a statute, must be taken and construed in the sense in which they were understood and intended at the time the rule was promulgated.” House v. Hanson, 245 Minn. 466, 473, 72 N.W.2d 874, 878 (1955). We do not examine the rules in isolation, but instead “read them in light of one another” and “inter-prete ] them according to their purpose.” Mingen, 679 N.W.2d at 727. Because “[sjervice by publication is in derogation of the common law,” the prescribed requirements for such service “must be strictly complied with.” Wiik v. Russell, 173 Minn. 580, 583, 218 N.W. 110, 111 (1928); see also D’Autremont v. Anderson Iron Co., 104 Minn. 165, 169-70, 116 N.W. 357, 358 (1908).

A summons can be served on an individual in the state either “by delivering a copy to the individual personally or by leaving a copy at the individual’s usual place of abode” with a resident “of suitable age and discretion.” Minn. R. Civ. P. 4.03(a). Rule 4.04(a) also provides that “[s]ervice by publication shall be sufficient to confer jurisdiction” in five specific circumstances, including, as relevant here, “[w]hen the defendant is a resident individual domiciliary having departed from the state with intent to defraud creditors, or to avoid service, or remains concealed therein with the like intent.” The rule also outlines the specific procedures for effectuating such service as follows:

The summons may be served by three weeks’ published notice in any of the cases enumerated herein when the complaint and an affidavit of the plaintiff or the plaintiffs attorney have been filed with the court. The affidavit shall state the existence of one of the enumerated cases, and that affiant believes the defendant is not a resident of the state or cannot be found therein, and either that the affiant has mailed a copy of the summons to the defendant at the defendant’s place of residence or that such residence is not known to the affiant. The service of the summons shall be deemed complete 21 days after the first publication.

Minn. R. Civ. P. 4.04(a).

The plain language of the rule indicates that service by publication does not confer jurisdiction unless one of five specific circumstances actually exists. Indeed, in describing the procedures for effecting service by publication, the rule provides that “[t]he summons may be served by three weeks’ published notice in any of the cases enumerated herein when the. complaint and an affidavit of the plaintiff or the plaintiffs attorney have been filed with the court.” Id. (emphasis added). This language indicates that the existence of one of the enumerated circumstances is a necessary condition for service of process by publication to confer jurisdiction.

The rule goes on to describe the procedures required before the summons is published. Publication of a summons may proceed upon filing a “complaint and an affidavit of the plaintiff or the plaintiffs attorney.” Id. The affidavit must “state the existence of one of the enumerated cases.” Id. The rule further requires the affiant to affirm that he “believes the defendant is not a resident of the state or cannot be found therein.” Id. (emphasis added). Both of the following requirements must be set forth in the affidavit: (1) an affirmation of the essential jurisdictional facts of one of the enumerated cases, such as that the defendant is a resident individual domiciliary who has left the state to defraud creditors or avoid service or remains concealed within the state with the like intent, and (2) an affirmation of the affiant’s belief that the defendant is not a resident of the state or cannot be found in the state.

Contrary to the lower courts’ rulings, Rule 4.04(a) is not satisfied if the affiant merely affirms that he “believes” that one of the enumerated circumstances exist. The essential jurisdictional facts regarding whether a defendant is a resident individual domiciliary must actually exist in order to confer jurisdiction. To hold otherwise would eviscerate the essential and clear requirements for. conferring jurisdiction by service of publication under Rule 4.04(a)(1).

This interpretation is consistent with the historical underpinnings of the rule. Service by publication was first authorized in Minnesota in 1866. Gill v. Gill, 277 Minn. 166, 169, 152 N.W.2d 309, 312 (1967). At that time, the law governing personal jurisdiction was based on the territorial sovereignty of states. See Pennoyer v. Neff, 95 U.S. 714, 722, 24 L.Ed. 565 (1877), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Thus, a state court could exercise personal jurisdiction over any individual who could be personally served within the territorial boundaries of the state. See Burnham v. Superior Court, 495 U.S. 604, 610-11, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990); see also Minn. R. Civ. P. 4.03.

When an individual could not be personally served within the state, however, whether a state court could exercise personal jurisdiction depended on the individual’s residency. Domicile within a state was generally “sufficient to bring an absent defendant within the reach of the state’s jurisdiction for purposes of a personal judgment by means of appropriate substituted service.” Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 85 L.Ed. 278 (1940). With respect to nonresidents, a state court could only acquire personal jurisdiction by substituted service when the action involved property within the state or “the personal status ” of a resident toward a nonresident (i.e., marriage dissolution), or when the “mode of service may be considered to have been assented to in advance” under state law. Pennoyer, 95 U.S. at 727, 733-35. “But where the entire object of the action [was] to determine the personal rights and obligations of the defendants, that is, where the suit [was] merely in personam, constructive service in this form upon a non-resident [was] ineffectual for any purpose.” Id. at 727. Our jurisprudence reflects these historical limits on a state court’s acquisition of personal jurisdiction by substituted service, including service by publication. See Roberts v. Roberts, 135 Minn. 397, 399, 161 N.W. 148, 149 (1917); Cabanne v. Graf, 87 Minn. 510, 513, 92 N.W. 461, 461-62 (1902).

Looking at Rule 4.04(a), the enumerated circumstances under which service by publication is permitted are directly linked to the circumstances under which a state court could acquire personal jurisdiction over a nonresident by substituted service at the time the provisions allowing for such service were first adopted in this state. Because a state court could not constitutionally exercise personal jurisdiction over a nonresident in an in personam action based on service by publication, we could not have intended the provisions of Rule 4.04(a) to allow service by publication based only on an allegation that a defendant was not a resident individual domiciliary.

We turn to the facts and circumstances of this case. The Turner affidavit stated that Smith “is a resident individual domiciliary who has departed from the State of Minnesota with intent to defraud creditors, or to avoid service, or remains concealed within with the like intent.” See Minn. R. Civ. P. 4.04(a)(1). The record also contains an affidavit of publication affirming that the summons was published for three consecutive weeks in Finance and Commerce. Once the plaintiff submits evidence of service, a defendant who challenges the sufficiency of service of process has the burden of showing that the service was improper. See Peters v. Wa ters Instruments, Inc., 312 Minn. 152, 157, 251 N.W.2d 114, 117 (1977). The defendant may meet this burden by establishing that he is not a resident individual domiciliary of Minnesota. Alternatively, Smith’s insufficient service of .process defense could succeed if he showed that he did not depart the state with the intent of defrauding creditors or avoiding service of process.

• Shamrock argues that the district court, after weighing the conflicting evidence, found that each of the necessary jurisdictional facts exists. As relevant to this analysis, the district court made the following findings of fact:

10. A search of [an online database] revealed that [Smith] had used the address of 1520 Hunter Drive in Wayzata, Minnesota from April 1996 until October 2000. This is also the registered address for service of process of Dakota Turkey Farms.
11. 1520 Hunter Drive is a residential house, and neither [Smith] nor anyone associated with Dakota Turkey Farms is located there.
# ⅝ ⅝: ⅝ ⅜ ⅜
15. Prior to service by publication, Plaintiff Shamrock filed the Turner Affidavit, which stated that [Smith] had left the state with the intent to defraud creditors, or to avoid service, or remained concealed within the state with like intent.

The court did not find that Smith was either a resident or domiciliary of Minnesota. Moreover, although the court found that “Shamrock filed the Turner Affidavit, which stated that [Smith] had left the state” with the requisite intent, the court did not find that the allegations in the affidavit were true or that Smith had in fact departed the state with such intent. We therefore conclude that the district court did not make the necessary factual findings as to whether Smith was actually a resident individual domiciliary who left the state with the intent to defraud creditors or ¿void service of process. We therefore reverse the decision of the court of appeals and remand this case to the district court to determine whether Smith was actually a resident individual domiciliary of Minnesota who departed the state with the intent to defraud creditors or avoid service of process.

Reversed and remanded.

MAGNUSOÑ, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

DIETZEN, J., took no part in the consideration or decision of this case.

      . The partnership's registration with the Secretary of State listed the same street address as did the affidavit of identification, but it listed the city as Wayzata rather than Medina. Despite this difference, it appears that the two addresses are, in fact, the same. We refer to the address in this opinion as "the Medina address.”

      . Under Minnesota law, all actions to enforce a judgment must be commenced within 10 years of the entry of that judgment. Minn. Stat. § 541.04 (2006). Judgment creditors sometimes seek to renew an existing judgment by commencing a new civil action within the 10-year limitations period and obtain a new judgment. Smith argued below that Minnesota law does not allow for the renewal of judgments in this manner, but the issue was not raised in his petition for further review and is therefore not before us on this appeal. For purposes of this opinion, we assume without deciding that a civil judgment may be renewed by the entry of judgment in a new civil action commenced within the statutory limitations period for enforcement of the original judgment.

      . In International Shoe Co. v. Washington, the United States Supreme Court shifted away from the territorial sovereignty principle and held that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.’ " 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken, 311 U.S. at 463, 61 S.Ct. 339). Minnesota’s long-arm statute— Minn. Stat. § 543.19 (2006) — reflects this change.
      But even if a defendant has sufficient minimum contacts with the state for a Minnesota court to constitutionally exercise personal jurisdiction, such jurisdiction does not exist until the defendant is served with process in accordance with state law. Because Rule 4.04(a)’s requirements for service by publication appear to be based on the historical standard for personal jurisdiction, the cases adopting and applying that standard are informative as to the intent of the rule.

      . Smith argues that Shamrock bears the burden of proving that service of process was sufficient. As Smith correctly notes, we have held that "the burden is upon the plaintiff to prove not only that personal jurisdiction is authorized by the terms of the statute ‘but also that minimum contacts exist rendering the exercise of such jurisdiction consistent with due process.' ” Sausser v. Republic Mortgage Investors, 269 N.W.2d 758, 761 (Minn.1978) (quoting All Lease Co. v. Betts, 294 Minn. 473, 474, 199 N.W.2d 821, 822 (1972)). Our statements in Sausser and Betts were made, however, in the context of whether a Minnesota court could, in general, legally exercise personal jurisdiction over a particular defendant. On the other hand, in cases involving the sufficiency of service, we have held that the defendant bears the burden of proof. See Peters v. Waters Instruments, Inc., 312 Minn. 152, 157, 251 N.W.2d 114, 117 (1977); see also Van Rhee v. Dysert, 154 Minn. 32, 37, 191 N.W. 53, 54 (1922) (concluding that "the showing by [the respondent-defendant] is altogether too meager upon which to predicate a finding that by due diligence plaintiff or his attorney could have found him so as to make personal service”).

      . Because we conclude that the court of appeals' decision must be reversed under Rule 4.04(a), we decline to consider Smith’s argument that the service by publication in this case also violated his due process rights under the United States Constitution.


author: MUEHLBERG, Judge.

text:
    CITY OF SAINT PAUL, Respondent, v. The STATE OF MINNESOTA DEPARTMENT OF REVENUE, et al., Appellants.
    Nos. A07-1763, A07-1764, A07-1765, A07-1766, A07-1767.
    Court of Appeals of Minnesota.
    Aug. 5, 2008.

      John J. Choi, St. Paul City Attorney, Louise Toscano Seeba, Assistant City Attorney, St. Paul, MN, for respondent.
    Lori Swanson, Attorney General, Rita. Coyle DeMeules, Assistant Attorney General, St. Paul, MN, for appellants.
    Considered and decided by MINGE, Presiding Judge; MUEHLBERG, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

MUEHLBERG, Judge.

In this action initiated by respondent City of St: Paul (city) to prevent reversion of tax-forfeited lands, appellant State of Minnesota (state) challenges the district court’s grant of summary judgment to the city. The state contends that the district court erred by determining that the city’s use of the tax-forfeited parcels was authorized by the restricted-use deeds issued when the parcels were transferred to the city. Because the city’s use of the parcels that were conveyed for “park purposes” is consistent with its application for conveyance of the four parcels and the use has not changed in the interim, we affirm the district court’s decision as to those four parcels. But because the city is no longer using the fifth parcel for snow removal and disposal of street-sweeping debris, which was the purpose set forth in its application for conveyance, and because state policy encourages the best use of tax-forfeited lands in the public interest, we reverse as to that parcel.

FACTS

Under Minn.Stat. § 282.01, subd. la (1980, 1992, 1994), the Commissioner of Revenue (commissioner) conveyed five parcels of tax-forfeited land to the city by restricted-use deeds. In 1980, the commissioner conveyed parcel 0133 to the city to use “exclusively for snow removal and street cleaning disposal.” In 1993, the commissioner conveyed parcels 0080, 0081, and 0053 to the city “exclusively for park purposes.” In 1995, the commissioner conveyed parcel 0123 to the city, also “exclusively for park purposes.” In accordance with the statute, all five parcels were conveyed to the city free of charge because the city agreed to use them .for an authorized public purpose.

The city used 0133 for snow removal and street sweeping disposal from 1980 to 1995, when the site was deemed full because it contained 50 feet of street-sweeping residue. The residue remains on the site, because the city has not removed it. In 2007, the market value of this parcel was estimated to be $518,400.

In its applications for use-deeds for parcels 0080 and 0081, which are contiguous, the city indicated that the parcels would be used for “park purposes ... wet land preservation.” Both parcels are “low, partially wooded” land. Since the conveyance in 1993, the parcels have been left undisturbed.

The application for parcel 0053 states that it would be used for “park purposes,” specifically for “slope preservation [on] Wheelock Parkway.” This parcel adjoins a parkway and is a “natural bluff,” which has been left undeveloped.

The city’s application for 0123 states that it will be used for “park purposes,” specifically as “open space — Natural prairie remnant.” This parcel is surrounded by railway right-of-way and private property; there is no access to the parcel, except over privately owned land. It is partially wetland and partially rolling prairie. The parcel is still in its natural state.

Minn.Stat. § 282.01, subd. la, permits conveyance of tax-forfeited property, without purchase, to a municipality for “an authorized public use.” The statute does not define this term. The Department of Revenue employs a “Red Book” to guide the public about departmental policies; it includes department guidelines for tax-forfeited properties, but these are guidelines, not officially enacted rules. When the conveyances were made to the city, the guidelines contained a two-part definition for “an authorized public use.” First, the use had to be authorized by statute, law, or charter; second, the parcel had to be available to the general public or the public purpose must directly benefit the general public. In 2005, these guidelines were amended to specifically exclude “open space” as an authorized public use because it “does not imply sufficient utilization of the land.”

The St. Paul City Charter defines “park purposes” to “include, but not be limited to mean, playground, trail, parkways, open space and any other recreational purpose.” St. Paul, Minn., City Charter ch. 13, § 13.01.1 (2007) (Charter). The city’s legislative code defines “open space” as “[l]and and water areas retained for use as active or passive recreation areas or for resource protection.” St. Paul, Minn., Legislative Code ch. 60, § 60.216 (2007) (Code). “Parks,” as opposed to “park purposes,” are more narrowly defined as “all the public grounds and squares maintained as pleasure grounds and designated recreation areas by the City of St. Paul.” Id. at ch. 170, § 170.01 (2007).

All four of the parcels used for park purposes are still in their natural state; there is no information in the record as to whether they are actively used for recreational purposes, but there is also no prohibition against entry onto the parcels for recreational purposes.

Ramsey County, which would benefit from the sale of tax-forfeited lands located within the county, advised the city that its use of the parcels was not in compliance with the restricted-use deeds. When the city refused to reconvey the parcels to the state, the county contacted the state to complain about the use of these parcels. On May 31, 2006, the commissioner issued declarations of reversion for the five parcels. The city began these five lawsuits to prevent reversion.

The parties agreed that there were no material facts in dispute and moved for summary judgment. The district court granted summary judgments to the city, concluding that the city’s code and charter provided definitions for park purposes and that the city was in compliance with the use deeds. The state appealed from these five judgments. This court consolidated the appeals.

ISSUES

1. Did the district court err by concluding that use of the parcels as open space and for resource protection is an “authorized public use” within the meaning of Minn.Stat. § 282.01, subd. la (2006)?

2. Did the district court err by concluding that storage of street-cleaning debris is an “authorized public use” in compliance with the use deed issued under Minn.Stat. § 282.01, subd. la?

ANALYSIS

The application of a statute to undisputed facts is a legal question, which this court reviews de novo. Harrison ex rel. Harrison v. Harrison, 733 N.W.2d 451, 453 (Minn.2007). Generally, we interpret a statute according to the plain meaning of its language; if a statute is ambiguous or is reasonably susceptible to more than one interpretation, the court may “consider the circumstances under which the law was enacted, the consequences of a particular interpretation, and the law’s legislative history.” Id.; Minn.Stat. § 645.16 (2006).

Statutory Interpretation: Park Purposes Parcels

The commissioner of revenue may sell tax-forfeited land to a municipality for any public purpose at market value or may convey tax-forfeited land free of charge to a municipality for an “authorized public use.” MinmStat. § 282.01, subd. la (2006). The statute does not define the term “authorized public use.” If the municipality fails to use the land for the public use specified, the municipality may either purchase the land or reconvey it to the state. Minn.Stat. § 282.01, subd. Id (2006). If the municipality does neither, the commissioner must issue a declaration of reversion to the state. Minn.Stat. § 282.01, subd. le (2006). Unless the municipality appeals to the district court within 30 days, the reversion becomes final. Id.

Minn.Stat. § 282.01, subd. le, provides that an appeal from a declaration of reversion is a civil action to be tried in the district court of the county in which the parcel is located. Thus, the procedures of the tax court and the presumptions inherent in tax court proceedings raised in oral argument by appellants do not apply to these proceedings. Cf. Minn.Stat. § 282.01, subd. le, with MinmStat. § 270C.924 (2006) or MinmStat. § 271.06 (2006).

By its charter, the city has the authority to acquire property needed for a public use or purpose. Charter, ch. 13, § 13.01. If the city acquires property for “park purposes,” it may not be diverted to any other use, except as prescribed by the charter. Id. at ch. 13, § 13.01.1. The charter defines “park purposes” to include, but is not limited to, use as a “playground, trail, parkway[], open space and any other recreational purpose.” The city’s code, in its chapter on zoning, defines “open space” as “[l]and and water areas retained for use as active or passive recreation areas or for resource protection.” Code, ch. 60, § 60.216.

Thus, reading the city’s code and charter together, the city is authorized to acquire and use property for park purposes, which include playgrounds, trails, parkways, open space, and any other recreational purposes. These are authorized public uses within the meaning of the statute.

The commissioner suggests that the charter language referring to “any other recreational purpose” modifies “open space” and that therefore open space that is not used recreationally is not used for “park purposes.” We do not agree. The phrase “any other recreational purposes” does not specifically modify “open space” but is consistent with the charter’s broadly expansive definition of “park purposes.”

The commissioner also suggests that a more restrictive definition of “parks” be used when analyzing whether the parcels are being used for park purposes. The statute does not define “parks,” but the city code does, and includes “all the public grounds and squares maintained as pleasure grounds and designated recreation areas.” Code, ch. 170, § 170.01. This section of the code does not provide a definition for the broader concept of “park purposes,” which is the language on the city’s applications for conveyance of the tax-forfeited parcels.

Minn.Stat. § 282.01, subd. lc (2006), states that a restricted-use deed issued by the commissioner “must be conditioned on continued use for the purpose stated in the application.” In this case, the city’s applications indicated that the parcels would be used for park purposes, but each application included language further defining that concept: “wet land preservation,” “slope preservation,” and “open space— Natural prairie remnant.” The city has continued to use the parcels precisely as stated in its applications. The basis for reverter under the statute is that a municipality has failed to put the land to the specified public use or has abandoned that use, neither of which is the case here.

The question before the court is one of first impression. The commissioner has cited four cases from other jurisdictions in support of his assertion that land used as open space should not be included in the definition of land used for a park purpose. None of these cases supports his arguments. See Siegel v. City of Branson, 952 S.W.2d 294, 297 (Mo.App.1997) (“The definition of park is not limited to a public place of green lawns, walkways and benches. The definition is broad, and the question when applying this definition is whether a particular use of property serves a public purpose”); City of Lincoln v. Townhouser, Inc., 248 Neb. 399, 534 N.W.2d 756, 760 (1995) (“A park may be little more than an area maintained in its natural state.”); Cohen v. City of Lynn, 33 Mass.App.Ct. 271, 598 N.E.2d 682, 686 (1992) (in analyzing definition of “park” or “park purposes,” concluding that general definition is “expansive,” and includes “a place to which the public at large may resort to for recreation, air, and light”); Burnham v. City of Jackson, 379 So.2d 931, 933 (Miss.1980) (citing definition of park as “[a]n area of land reserved from settlement and maintained in its natural state as a public property”).

Because the city’s use of the parcels is an authorized public use under its code and charter and that authorized public use has not changed since the commissioner issued the use deed, the state has failed to establish grounds for reverter. The district court therefore did not err by granting summary judgment in favor of the city as to these four parcels.

Snow Removal/Disposal of Street Sweeping Parcel

The use deed for parcel 0133 states that the property is to be used for “snow removal and street cleaning disposal.” Neither party disputes that this is an authorized public use. But the commissioner argues that because the property has been filled with street-cleaning debris and has not been used for snow removal or street-cleaning purposes since 1995, the city is no longer using the property in conformance- with the use deed, although the city continues to store street sweeping debris at the site. The commissioner also argues that the use deed implies active use, rather than passive storage. We agree. When a deed has made a grant of property “for a specific, limited, and definite public use, the subject of the grant could not be used for another and different use.” John Wright & Assoc., Inc. v. City of Red Wing, 259 Minn. 111, 115-16, 106 N.W.2d 205, 208 (1960) (quotation omitted). Courts must not narrowly or unreasonably define the nature of a use or restrict the grantee’s discretion, but nevertheless may intervene when there is a “clear diversion of the property to a use inconsistent with that for which it was dedicated.” Id. at 116, 106 N.W.2d at 208. The uses for which the city acquired this parcel have been exhausted or abandoned, and the state has therefore established grounds for reverter.

Our reasoning is supported by the state’s general policy as to tax-forfeited lands, which is to “encourage the best use of tax-forfeited lands, recognizing that some lands in public ownership should be retained and managed for public benefits while other lands should be returned to private ownership.” Minn.Stat. § 282.01, subd. 1 (2006). The city acknowledges that it no longer uses or needs the site for snow removal and disposal of street sweeping debris, except in the very broadest context of storage. The record, which includes evidence of the increasing value of this parcel and possible alternate uses for the property, confirms that maintaining this parcel as an empty and functionally abandoned site is not the best use of tax-forfeited lands, which the state holds in trust for the public’s benefit.

Because the city has exhausted or abandoned the use for which the state conveyed this parcel, the commissioner properly issued a notice of reversion, and the district court erred by denying the. reversion of parcel 0133.

DECISION

The undisputed record facts here establish that the city continues to use parcels 0080, 0081, 0053, and 0.123 in accordance with the terms of the restricted-use deeds; summary judgment in the city’s favor was therefore appropriate as to these parcels. But the city is no longer using parcel 0133 in accordance with the restricted-use deed. Because the state has established grounds for reverter on these undisputed facts, the district court erred by granting summary judgment in the city’s favor on this parcel. We therefore reverse the district court’s grant of summary judgment as to parcel 0133.

Affirmed in part and reversed in part.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . Each parcel will be referred to by the last digits of its property identification number, for ease of reference, and therefore do not address this assertion.

      . Although appellant asserted at oral argument that there is encroachment by private parties on one or more of the parcels, we cannot determine this from the record before us.


author: KONENKAMP, Justice.

text:
    2008 SD 68
    Joe BERBOS, Plaintiff and Appellee, v. Harold KRAGE and Gwen Krage, Defendants and Appellants.
    No. 24752.
    Supreme Court of South Dakota.
    Considered on Briefs May 19, 2008.
    Decided July 16, 2008.

      Kimberly A. Dorsett of Richards, Oliver & Dorsett Aberdeen, SD, for plaintiff and appellee.
    Richard L. Russman of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, SD, for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] Joseph Berbos purchased real property from Harold and Gwen Krage on a contract for deed. When the parties disputed ownership of a building encroaching onto land not sold in the contract, Berbos withheld his last payment and brought suit for specific performance. After a hearing, the circuit court granted summary judgment for Berbos, ruling that the parties intended to convey the entire building. On appeal, we conclude that because there are genuine issues of fact on the question of intent, the matter must be reversed and remanded for trial.

Background

[¶ 2.] On May 9, 2002, the Krages and Berbos entered into a contract for deed for the sale of certain real estate owned by the Krages in Brown County, South Dakota. The contract described the property in metes and bounds. No buildings were mentioned. The total purchase price was $854,000, to be paid in installments, with the final payment of $173,444.44 due on January 1, 2004.

[¶ 3.] Before the last installment became due, a dispute arose between the parties on the ownership of a building located partially on the land conveyed to Berbos in the contract (Lot 1) and partially on the Krages’ adjoining property (Lot 2). Used for hunting purposes, the building is a large steel structure with bedrooms, a game room, bus storage, restrooms, a cleaning room, a shower, and a kitchen. There is no common wall by which the structure can be separated at the line of encroachment.

[¶ 4.] On December 24, 2003, an attorney for Berbos wrote the attorney for the Krages acknowledging that payment of $173,444.44 would be due from Berbos on January 1, 2004. The letter indicated that a check to the Krages was available for issuance when the Krages provided clear title. A photocopy of the check was included with the letter. In another letter, dated March 22, 2004, the Krages were again informed that Berbos was “willing to deliver” the check “as soon as clear title and possession of the real estate is delivered.”

[¶ 5.] The parties could not resolve their dispute over the building, and, on August 23, 2004, Berbos brought suit for specific performance. Berbos asked the court to compel the Krages to deliver merchantable title, or in the alternative, to reform the deed. Berbos sought a summary judgment. In response, the Krages moved to amend their answer and include an omitted counterclaim for foreclosure. After a hearing, the court granted summary judgment for Berbos. It reasoned that because the Krages did not reserve an interest in any of the buildings located on Lot 1, the intent of the parties was that all buddings, including the encroaching structure, would pass with the conveyance. The Krages were ordered to deliver merchantable title, and Berbos was ordered to pay the Krages fair market value for the portion of Lot 2 the building encroached on.

[¶ 6.] For their part, the Krages sought accrued interest on the last payment Berbos withheld. Berbos responded that because he offered to make the final payment, the accrual of interest on the obligation was tolled. See SDCL 20-5-18. The court denied the Krages’ request for interest, concluding that Berbos’s tender of payment was an unconditional offer. The court further denied the Krages’ motion to amend their answer and submit their omitted counterclaim. On appeal, the Krages assert that the court erred when it granted summary judgment for Berbos and abused its discretion when it denied their motion to amend their answer and submit an omitted counterclaim.

Analysis and Decision

[¶ 7.] “On appeal, we will affirm summary judgment when the facts and law are clear and no genuine issues of material fact exist.” Citibank South Dakota, N.A. v. Schmidt, 2008 SD 1, ¶ 8, 744 N.W.2d 829, 832 (citing Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126). “Motions to amend engage the sound discretion of the trial court; thus decisions to grant or deny will not be disturbed absent a clear abuse of discretion resulting in prejudice to the nonmovant.” Prairie Lakes Health Care Sys., Inc. v. Wookey, 1998 SD 99, ¶ 28, 583 N.W.2d 405, 417 (citing Ripple v. Wold, 1996 SD 68, ¶ 12, 549 N.W.2d 673, 676 (citing Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 423 (S.D.1994))).

[¶ 8.] The Krages contend that summary judgment was improperly granted for two reasons: (1) an equitable claim is not “suited for summary disposition,” see Ahl v. Arnio, 388 N.W.2d 532, 534 (S.D.1986); and (2) there are material issues of fact in dispute over what the parties intended for the disputed building. Summary judgment is proper “if the pleadings, 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 the moving party is entitled to a judgment as a matter of law.” SDCL 15-6-56(c). Even though this action sounds in equity, and such cases are not often susceptible to summary judgment, if there are no material issues of fact in dispute, summary judgment may be appropriate. Farm Credit Services of Am. v. Dougan, 2005 SD 94, ¶ 7, 704 N.W.2d 24, 27 (“summary judgment is a preferred method for disposing of any legally inadequate claim”) (citing Horne v. Crozier, 1997 SD 65, ¶ 5, 565 N.W.2d 50, 52).

[¶ 9.] The Krages do not dispute that the contract for deed is silent on whether the buildings on Lot 1 were to be conveyed with the deed. They take issue, however, with the fact that the court “did not reference specific legal authority for the proposition that the absence of a written reservation constitutes the intent to transfer a fixture, or portion thereof, when the fixture is located outside the bounds of the legal description.” The Krages further contend that when a portion of a building is not included in the legal description of the land conveyed, the intent of the parties cannot be ascertained solely from the four corners of the contract. Berbos, on the other hand, argues that a reading of several contracts surrounding the parties’ agreement together with an understanding of the history of the parties’ relationship, provide ample support for a conclusion that everyone intended that all buildings on Lot 1 be sold as part of the overall transaction, including that portion of the structure encroaching on Lot 2.

[¶ 10.] In granting summary judgment, the circuit court concluded that, as a matter of law, all the buildings located on Lot 1 were sold under the contract for deed because the deed did not include a reservation by the Krages of an interest in any building. The court then ruled that the Krages intended to sell the entire disputed building, including the part encroaching on Lot 2, based on its reading of the four corners of the parties’ contract for deed, the earnest money agreement, and the fact that the Krages did not assert, in response to Berbos’s motion for summary judgment, that they intended to retain a portion of the disputed building.

[¶ 11.] “Generally, absent a specific reservation in a deed, buildings and other improvements used in connection with realty in such a way as to constitute appurtenances or fixtures pass as a matter of course by the conveyance.” N.P., Inc. v. Turboff, 111 S.W.3d 40, 44 (Tex.2003); see also Sheets v. Lessee of Selden et al., 2 Wall. 177, 69 U.S. 177, 17 L.Ed. 822 (1864); Milam v. Coleman, 418 S.W.2d 329, 331 (Tex.Civ.App.1967); Baldwin v. Breed, 16 Conn. 60, 1843 WL 411; Van Wagner v. Van Nostrand, 19 Iowa 422, 1866 WL 388 (1865); Conner v. Coffin, 22 N.H. 538, 1851 WL 2098(NH). Buildings that belong to the grantor, “being part of the land, cannot be reserved by parol when the land is conveyed; the deed conveys them to the grantee, unless the reservation be in writing.” Herzog v. Marx, 202 N.Y. 1, 94 N.E. 1063, 1064 (1911) (quoting Mott v. Palmer, 1 N.Y. 564, 569 (1848)). Here, the contract for deed contains no reservation, and therefore, the court did not err when it ruled that all the buildings located on Lot 1 passed with the conveyance.

■ [7] [¶ 12.] As to the disputed building not located wholly within Lot 1, we must determine whether the court was correct in ruling that, as a matter of law, the parties intended the entire building to be conveyed under the contract. The court found no issue of material fact in dispute based in part on the four corners of the contract for deed and the earnest money agreement, and in part because “Mr. Krage’s responding affidavit does not state that he intended to keep all or part of the building-”

[¶ 13.] “Where a portion of a building has not been embraced within the description of the land conveyed by the common owner of all the land covered by the building, and where it does not clearly appear from the grant that the parties intended the entire building to pass, the cases hold generally that such grantee has no right of ownership in, or right of possession to, the portion of the building on the adjoining land.” Podlesny v. Baranko, 82 Pa. D & C 281, 284-85 (Pa.Com.Pl.1953) (emphasis added); see also Adams v. Marshall, 138 Mass. 228, 52 Am.Rep. 271 (1884); Whyte v. Builders’ League of New York, 164 N.Y. 429, 58 N.E. 517, 518 (1900); Griffiths v. Morrison, 106 N.Y. 165, 12 N.E. 580, 581 (1887); Baker v. Zingelman, 259 Pa.Super. 441, 393 A.2d 908, 910 (1978) (citing Nestico v. Carnucci, 39 Northumberland L.J. 39 (1966)). In the contract for deed here, there is no mention of any buildings, let alone the disputed building. Therefore, the garage-office portion situated on Lot 2 is not embraced within the description of the land conveyed, and in accord with the general rule, Berbos has no right to ownership of the portion of the building located on Lot 2. See Podlesny, 82 Pa. D. & C. at 284-85.

[¶ 14.] Despite the fact that Ber-bos has no right to own the portion of the building on Lot 2, the court concluded that there is no material issue of fact in dispute that the parties intended to pass the entire building with the conveyance. As noted earlier, the court remarked that it was relying on the four corners of the earnest money agreement and the contract for deed. These two documents, however, shed no light on the parties’ intent with respect to the disputed building. There is no mention of buildings whatsoever in the contract for deed. And, in the earnest money agreement, while there is a phrase “including all buildings therein,” this relates to a third party’s right to occupy the buildings on Lot 1.

[¶ 15.] “Summary judgment is a drastic remedy, and should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy.” Richards v. Lenz, 539 N.W.2d 80, 83 (S.D.1995) (citing Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir.1982)). Berbos contends that several documents and the history surrounding the parties’ transaction support a conclusion that the parties intended to convey the' entire building. He further argues that the Krages failed to specifically attest in opposition to summary judgment that they intended to retain all or any portion of the disputed building.

[¶ 16.] In his affidavit, Berbos declared that “[a]t no time did I enter into any oral or written agreement with Mr. Krage that he would retain ownership of one half of any rooms in this building. A review of the photographs sets forth that it would be absolutely nonsense and impractical to physically divide a room in a building where those rooms where [sic] completely dependant upon the facilities and building located on Lot 1 for their proper use.” In a responsive affidavit, Mr. Krage asserted that Lot 2 “was not subject to the relevant contract for deed and was retained by Harold Krage and inhabited by” the Krag-es’ stepson. Mr. Krage further attested that “prior to the execution of the contract for deed, a steel structure was erected, partially upon the boundary of Lot 1 and Lot 2.... Berbos was well aware that the steel building straddled the Lot 1/Lot 2 lines,” but “the contract for deed, drafted by Berbos’s attorney, Robert Ronayne, made no reference to this fact and was executed by Berbos.”

[¶ 17.] While the Krages’ affidavit does not contain a specific statement that they intended to retain the building in whole or in part, the affidavit does state that they intended to retain all of Lot 2 and that the Krages’ stepson occupied Lot 2. These two statements support a reasonable inference, or at least a reasonable doubt, that the portion of the building located on Lot 2 was intended to be retained by the Krages. See St. Paul Fire & Marine Ins. Co. v. Engelmann, 2002 SD 8, ¶ 15, 639 N.W.2d 192, 199 (“Not only must the facts not be in issue, but also there must be no genuine issue on the inferences to be drawn from those facts.”). From our review of the record, the intent of the parties is not clear. See Citibank South Dakota, N.A., 2008 SD 1, ¶ 14, 744 N.W.2d at 834 (quoting S.D. Dept. of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citing Wilson v. Great Northern R.R. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968))). Moreover, when there is reasonable doubt on whether a genuine issue of material facts exists, the doubt should be resolved against the movant. Keystone Plaza Condominiums Ass’n v. Eastep, 2004 SD 28, ¶ 15, 676 N.W.2d 842, 847 (citations omitted). Because the matter of intent in this case can only be resolved in a trial, we reverse the grant of summary judgment. See id.

[¶ 18.] On their next point, the Krages assert that the court abused its discretion when it denied their motion to file an amended answer with their omitted counterclaim. Them proposed amendment asserted counterclaims for interest and foreclosure on the contract for deed. Because we reverse the grant of summary judgment, the Krages’ motion to amend should be permitted.

[¶ 19.] With respect to the Krages’ request for prejudgment interest, the circuit court found that Berbos made an unconditional offer of payment, tolling the accrual of interest. See SDCL 20-5-18. “In the context of a contract for deed, interest on the debt will stop running when the buyer tenders an unconditional offer of payment.” Anderson v. Aesoph, 2005 SD 56, ¶ 27, 697 N.W.2d 25, 33 (citing Adrian v. McKinnie, 2004 SD 84, ¶ 14, 684 N.W.2d 91, 98 (citing Schmidt v. Iowa Beef Processors, Inc., 347 N.W.2d 897, 898 (S.D.1984))). Nonetheless, “[o]nly an unconditional tender of payment sufficient to discharge the liability will toll interest under SDCL 20-5-18.” Id. ¶ 28 (citing Adrian, 2004 SD 84, ¶ 15, 684 N.W.2d at 98 (citing Dougherty v. Beckman, 347 N.W.2d 587, 591 (S.D.1984))).

[¶ 20.] On December 24, 2003, Berbos, through his attorney, acknowledged that payment of $173,444.44 was due on January 1, 2004. His attorney wrote,

I am enclosing with this letter copies of the following:
1. check made payable to Mr. and Mrs. Krage in the amount of $161,444.44; and
2. check made payable to my trust account in the amount of $12,000.
We intend to withhold $12,000 from the final payment under the contract in view of your client’s consistent inability or reluctance to sign the documents necessary to provide title to the trailer. At such time, however, as merchantable title is provided to the real estate described in the contract for deed, I am authorized to release the check in the amount of $161,444.44.

In another letter, dated March 22, 2004, counsel reiterated that the final payment was available to the Krages: “You will note my correspondence to you of December 24, 2003, [in] which I included a copy of the check that we are willing to deliver. I remain empowered to deliver that check as soon as clear title and possession of the real estate is delivered.”

[¶ 21.] With these two letters, Berbos maintains that he tendered an unconditional offer of payment, despite the fact that payment was conditioned on the Krages providing clear title and possession of the real estate. According to Berbos, requiring the Krages to provide clear title in return for payment is not a condition sufficient to make the offer conditional. Indeed, we have said, “An offer is unconditional when the amount offered is sufficient to discharge the liability and the payment does not demand something in addition to, or outside of, the original agreement.” Anderson, 2005 SD 56, ¶ 28, 697 N.W.2d at 28 (citing Adrian, 2004 SD 84, ¶ 14, 684 N.W.2d at 98 (citing Schmidt, 347 N.W.2d at 898)); see also Estate of Fisher v. Fisher, 2002 SD 62, ¶ 28, 645 N.W.2d 841, 849.

[¶ 22.] We conclude that the letter with the photocopied check was insufficient under SDCL 20-5-18 because it proposed to pay the Krages $12,000 less than the total obligation. The check was for $161,444.44, and Berbos’s total obligation was $173,444.44. See Dougherty, 347 N.W.2d at 591 (tender was not for full obligation, so insufficient). “ ‘[Tjender’ is generally defined as an unconditional offer of payment consisting in the actual production of a sum not less than the amount due on a specific debt or obligation.” Adrian, 2004 SD 84, ¶ 10, 684 N.W.2d at 96 (citation omitted). Because this offer fails to satisfy SDCL 20-5-18, the court erred when it concluded that the accrual of interest was tolled.

[¶ 23.] Reversed and remanded.

[¶ 24.] GILBERTSON, Chief Justice and SABERS, ZINTER, and MEIERHENRY, Justices, concur.