text:
    STATE of Minnesota, Respondent, v. Jessie KING, Jr., Appellant.
    No. A04-292.
    Court of Appeals of Minnesota.
    Jan. 4, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.

      Bradford W. Colbert, Assistant State Public Defender, St. Paul, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; SCHUMACHER, Judge; and MINGE, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Jessie King, Jr. challenges his conviction of fifth-degree controlled substance crime under Minn.Stat. § 152.025, subds. 2(1), 3(b) (2002), arguing the district court erred in concluding there was probable cause supporting the search warrant and the police officers’ entry into his apartment was reasonable. We affirm.

FACTS

On June 17, 2003, Officer Kelly Kasel of the Minneapolis Police Department applied to the district court for a “knock and announce” search warrant to enter King’s apartment and search for narcotics, weapons, and evidence of drug sales. In an affidavit attached to the application, Kasel stated that she had received citizen complaints that drugs were being sold from King’s apartment and relayed the circumstances of a controlled buy that a confidential reliable informant working under Kasel’s directions had made three days earlier. She also included the confidential reliable informant’s description of the seller and the fact that the seller had provided the confidential reliable informant with the piece of paper containing two phone numbers. The search warrant was issued the same day.

At a hearing challenging the search warrant, Kasel testified to the following events regarding the controlled buy. She arranged for the confidential reliable informant to purchase controlled substances at King’s apartment. Before sending the confidential reliable informant into the building to make the purchase, Kasel searched him and provided him with “buy” money. Kasel testified she then personally watched him go into the apartment building, but she did not see what occurred once the confidential reliable informant was inside the building. After the confidential reliable informant exited the building, he came directly to Kasel’s location and produced .2 grams of crack cocaine.

Kasel also testified to the information she received from the confidential reliable informant after he exited the building. He told her that he “buzzed the buzzer for number 204” and he was buzzed in at the front door. He also told her that once he was inside apartment 204, he “exchanged their prerecorded buy money for the narcotics.” In addition, he provided Kasel with a description of the seller and a piece of paper the seller had given him with two separate phone numbers and the name “Pokey” written on it. The confidential reliable informant also told her that the seller said that “if they ever wanted anything in the future, they could call.”

Police executed the search warrant at King’s apartment at 2:00 p.m. seven days after the search warrant was issued by the district court. Kasel testified that before entering the building she had the confidential reliable informant call Pokey to see if he was in the apartment and could sell additional narcotics. Kasel testified that Pokey told the confidential reliable informant he was home and available to sell narcotics.

Kasel testified that she was present when the warrant was executed and the following events occurred as the police attempted to enter King’s apartment. Although she stayed behind other officers when they entered the apartment, she could see the officers at the apartment door. She heard them knock on the door and announce, “Police, search warrant.” She testified that after waiting about five to ten seconds, the officers broke the door down and entered the apartment.

Officer Roger Smith, who was the “point officer” when the police entered King’s apartment, testified the search warrant was executed as follows. As the police approached King’s apartment, Smith was the second officer in the formation but was the one who actually knocked on the door. Before he knocked, he could hear sounds coming from the television inside the apartment. After he knocked he heard a male voice say, “Who is it?” Smith believed it sounded as though the response came from a person within 10 to 15 feet of the door. Smith replied, “Police, search warrant” and waited for someone to answer the door. Smith did not hear any noises that sounded like someone was approaching the door. He waited “at least five to ten seconds minimum” and then decided to “ram” the apartment door in order to gain entry. When another officer attempted to ram the door, it took numerous hits in order to get the door open but “still nobody came to the door.”

Once inside the apartment, Smith discovered that the door had been barricaded. King and a female were present in the apartment living room. Smith found a plastic baggie containing crack cocaine on the living room floor and crack cocaine in King’s pocket. King and the female testified that the police did not knock on the door and never announced that it was the police executing a search warrant. King and the female also testified that they were strip-searched.

King was charged with fifth-degree controlled substance crime under Minn.Stat. §§ 152.025, subds. 2(1), 3(b); 609.101, subd. 3 (2002). King moved the court to suppress the drugs, arguing the search warrant lacked probable cause, the police did not comply with the knock and announce requirements when executing the warrant, and there were technical errors with the search warrant. The district court denied King’s motion, finding there was probable cause supporting the search warrant, the police officers had knocked and announced their presence, and their entry did not violate King’s Fourth Amendment rights. The court also found King and the female had not been strip-searched, as they claimed. A trial on stipulated facts was held before the district court. King was found guilty of fifth-degree controlled substance crime and sentenced to 13 months, stayed for two years.

ISSUE

1. Did the district court err in denying King’s motion to suppress the evidence found in his apartment based on the court’s determination that the probable cause supporting the search warrant had not become unconstitutionally stale?

2. Did the police’s forced entry five to ten seconds after they knocked on King’s door and announced their presence constitute an unreasonable search in violation of the state and federal constitutions?

ANALYSIS

In reviewing pretrial orders on motions to suppress evidence an appellate court may independently examine the facts and determine whether as a matter of law the district court’s determination was erroneous. State v. Stoskopf, 644 N.W.2d 842, 844 (Minn.App.2002). But “when reviewing a district court’s probable cause determination made in connection with the issuance of a search warrant, an appellate court should afford the district court’s determination great deference.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001). Rather than considering the issue de novo, this court’s task is to ensure that there was a “substantial basis for concluding that probable cause existed.” State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995) (quotation omitted). The district court’s factual findings are reviewed for clear error. State v. Horner, 617 N.W.2d 789, 795 (Minn.2000).

1. King argues the district court erred in not suppressing the evidence found during the search of his apartment because the information supporting probable cause for the search warrant was stale by the time the warrant was executed. The delay in executing a search warrant raises two issues: (1) did the delay violate statutes, and (2) did the delay cause the search to become unconstitutional? State v. Yaritz, 287 N.W.2d 13, 15 (Minn.1979). Minn.Stat. § 626.15(a) (2002) provides that, absent circumstances not present here, “a search warrant must be executed and returned to the court which issued it within ten days after its date.” 'Here, it is uncontested the search warrant was executed within seven days of its issuance and therefore, there is no statutory violation.

A more difficult question, however, is whether the delayed execution constituted a constitutional violation. Yaritz, 287 N.W.2d at 16. “Whether a delay in executing a search warrant is unconstitutional depends on whether the probable cause recited in the affidavit still exists at the time of execution of the warrant — that is, whether it is still likely that the items sought will be found in the place to be searched.” Id.

Courts have refused to set arbitrary time limits or to establish a rigid formula in making the determination of whether the probable cause underlying a search warrant has grown stale. State v. Jannetta, 355 N.W.2d 189, 193 (Minn.App.1984). “Instead, the question must be determined by the circumstances of each case.” Id. The “approach should be one of flexibility and common sense.” Id. Relevant circumstances include the character of the crime, the character of the criminal, the character of the thing to be seized, and the character of the place to be searched. Yaritz, 287 N.W.2d at 16. The passage of time is less significant when an activity is of an ongoing, protracted nature. State v. Souto, 578 N.W.2d 744, 750 (Minn.1998).

The supreme court in Yaritz concluded a delay of six days in executing a warrant was reasonable:

While it is true that a drug sale may be a single-occurrence crime, thé affidavit ... indicate[d] that defendant was in the business of selling drugs and that he had been doing it on.a continuing basis. Because of this, ... it is reasonable to conclude that the probable cause [that existed on the day the warrant was obtained] continued to exist [six days later] when the warrant was executed.

287 N.W.2d at 17.

Here, the criminal activity alleged in the affidavit is that King was selling drugs out of his apartment. The affidavit states the confidential reliable informant made a controlled purchase of crack cocaine from King’s apartment and was given a phone number to contact King should he wish to make additional purchases. In addition, citizens and the building’s owner had complained of activity suggesting a history - of drug sajes from King’s apartment.

Viewing the components of the affidavit together, it shows that King was in the ongoing business of selling drugs from his apartment. See State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (stating appellate courts “must be careful not to review each component of the affidavit in isolation. Even if each component is judged unsubstantial, the components viewed together may reveal ... an internal coherence that [gives] weight to the whole.” (alteration in original) (quotation omitted)). Further, Kasel testified that the day the warrant was executed the confidential reliable informant called King at the number with which he had been provided during the earlier controlled buy and confirmed King was in his apartment and willing to sell narcotics. It is reasonable to conclude that the probable cause that existed at the time the search warrant was issued continued to exist when the warrant was executed.

2. King argues the evidence found in his apartment should have been suppressed because the manner in which the police entered his apartment constituted an unreasonable search in violation of his constitutional rights. The Fourth Amendment to the United States Constitution guarantees the people the right to be free from “unreasonable searches and seizures.” The manner in which a search warrant is executed is part of the reasonableness inquiry. United States v. Banks, 540 U.S. 31, 124 S.Ct. 521, 524-25, 157 L.Ed.2d 343 (2003).

The question when police forcibly enter a residence, after knocking and announcing their presence, is whether the amount of time the police waited before entering was reasonable. The same factors that are relevant in determining whether police officers’ unannounced entry was reasonable apply to determining whether the police waited a reasonable amount of time, namely, whether under the facts known to the police officers, it “would be dangerous or futile, or ... would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Id. at 525 (alteration in original) (quoting Richards v. Wisc., 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615 (1997)).

Whether exigent circumstances existed or it would have been futile to continue waiting is determined by examining the totality of the circumstances in a given case, but there are “factual considerations of unusual, albeit not dispositive, significance.” Banks, 124 S.Ct. at 525. How much consideration should be given to any one factor will depend in part on whether the police chose to forcibly enter the residence because of futility or exigency. See id. at 527 (noting size of defendant’s apartment, while not relevant to determining exigency, would be relevant to futility).

Relevant factors may include the size of the residence to be searched, the time of the day, sounds heard by officers coming from inside the apartment, and the evidence sought. See, e.g. id. at 528 (stating “[p]olice seeking a stolen piano may be able to spend more time to make sure they really need the battering ram”); United States v. Gillaum, 372 F.3d 848, 855 (7th Cir.2004) (concluding “sound of footsteps coming from inside the apartment and not moving closer to the entry door” was sufficient for police officers to disregard knock and announce rule); United States v. Spikes, 158 F.3d 913, 927 (6th Cir.1998) (stating “amount of time officers need to wait before entering a home necessarily depends on how much time it would take for a person in the house to open the door”); United States v. Bonner, 874 F.2d 822, 823 (D.C.Cir.1989) (finding search reasonable where police served warrant during early evening hours, knew that persons were in small apartment, knocked and announced presence, and waited 10 seconds before entering).

Here, the police executed the warrant at 2 p.m. Smith testified that after knocking on the door he heard a male voice respond, “Who is it?” but heard no movement towards the door after he stated, “Police, search warrant.” The search warrant authorized the police to search for controlled substances and evidence of controlled substance sales. We conclude that under these circumstances it would be futile and possibly allow the destruction of evidence if the police continued to wait. The police officers’ forced entry into King’s apartment was not unreasonable.

King argues because the Supreme Court concluded in Banks that 15 to 20 seconds, while reasonable, was — in King’s words— “a close call,” waiting only 5 to 10 seconds must be unreasonable. While it is true that in Banks the Supreme Court noted its agreement with the dissent from the Ninth Circuit that “this call is a close one,” 124 S.Ct. at 526, the Court also noted with approval several federal appellate court decisions that have found times less than 15 to 20 seconds to be reasonable, including United States v. Markling, 7 F.3d 1309, 1318-19 (7th Cir.1993), which held a seven-second wait was reasonable. Banks, 124 S.Ct. at 526 n. 5. It is clear the Supreme Court did not hold that waiting less than 15 to 20 seconds was per se unreasonable.

King also fails to address a key distinction between his case and the facts in Banks. In Banks there was no response from inside the apartment when the police knocked and announced their presence. Id. at 523. But here, police heard a male voice respond, ‘Who is it?” within 10 to 15 feet of the door and then heard nothing to indicate that anyone was moving towards the door. Therefore,' unlike in Banks, the police here were dealing not only with the exigency that King might be destroying evidence but also with the fact that it would be futile for them to continue to wait. The Supreme Court in Banks noted that how long police officers must wait for a resident to open the door before it becomes futile “will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse.” Id. at 527. But the Supreme Court noted Banks’s argument that 15 to 20 seconds was too short of a time for him to get to the door, was “probably unrealistic on its own terms. The apartment was ‘small’ and a man may walk the length of today’s small apartment in 15 seconds.” Id., n. 6.

DECISION

The district Court did not err in concluding there was adequate probable cause supporting the search warrant at the time it was executed and that the police officers’ forced entry to execute the warrant was reasonable. '

Affirmed.


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    BLOCK 25 COMMITTEE, et al., Respondents, v. CITY OF WALKER, Appellant.
    No. A04-833.
    Court of Appeals of Minnesota.
    Jan. 4, 2005.

      Thomas L. Fabel, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, for respondents.
    Jon K. Iverson, Paul D. Reuvers, Iver-son Reuvers, L.L.C., Bloomington, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; STONEBURNER, Judge; and HUSPENI, Judge.

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

   OPINION

STONEBURNER, Judge.

The district court granted a declaratory judgment and injunction to respondents, prohibiting the relocation of appellant City of Walker’s municipal liquor store to a historic building located within 1,000 feet of the Cass County jail, concluding that Minn.Stat. § 340A.702(6) (2002), makes the sale of liquor from that location illegal. Because we construe the statute to apply only to state institutions and not to county jails, we reverse.

FACTS

Respondents, an organization of Walker-area citizens and several of its individual members, sought a declaratory judgment from the district court that Minn.Stat. § 340A.702(6) (2002), criminalizes liquor sales within 1,000 feet of a county jail and an injunction prohibiting appellant City of Walker from expending taxpayer funds to move its municipal liquor store to a historic building located within 1,000 feet of the Cass County jail. The district court granted summary judgment to respondents, finding that Minn.Stat. § 340A.702(6), applies to the Cass County jail, and therefore prohibits the use of the proposed relocation site as a liquor store and the expenditure of taxpayers’ funds for the relocation. This appeal followed.

ISSUES

Does MinmStat. § 340A.702(6) (2002), criminalize liquor sales within 1,000 feet of a county jail?

ANALYSIS

“On appeal from a summary judgment based on the application of statutory language to undisputed facts, we exercise independent review to determine whether the district court erred in applying the statute.” Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002). “The fundamental rule of statutory construction is to look first to the specific statutory language and be guided by its natural and most obvious meaning.” State v. Nelson, 671 N.W.2d 586, 589 (Minn.App.2003). “If, on its face and as applied to the facts, a statute’s meaning is plain, judicial construction is neither necessary nor proper.” Occhino, 640 N.W.2d at 359.

Minn.Stat. § 340A.702(6) (2002) provides:

It is a gross misdemeanor: ... to sell or otherwise dispose of intoxicating liquor within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision and control, in whole or in part, of the commissioner of human services or the commissioner of corrections;

The district court framed the issue as whether the Commissioner of Corrections exercises “supervision and control, in whole or in part,” over the Cass County jail. The district court concluded that the licensing, inspection, and regulation powers that the commissioner exercises over county jails constitute “supervision and control,” and a plain reading of the statute makes it applicable to county jails.

While we agree with the district court’s conclusion that the Department of Corrections, in part, exercises supervision and control over county jails, that conclusion is not dispositive of the issue of the application of the statute to sales within 1,000 feet of a county jail. Whether a county jail is an “other institution” within the meaning of MinmStat. § 340A.702(6), must also be determined. Appellant argues that the statute only applies to state institutions but concedes that the words of the statute are ambiguous on this point. We agree.

If the statutory language has more than one reasonable interpretation, it is ambiguous. Occhino, 640 N.W.2d at 360. In construing statutes, “words and phrases are construed according to rules of grammar and according to the common and approved usage and , general words are construed to be restricted in their meaning by preceding particular words.” Minn. Stat. § 645.08(1), (3) (2002). Under the rules of grammar, the adjective “state” could be read to modify only “hospital,” or could be read to modify the entire list of institutions that follow, including “other institution.” The statute is therefore ambiguous regarding what institutions fall within its ambit.

“[Cjourts resolve ambiguity by looking to legislative intent, agency interpretation, and principles of continuity, which include consistency with laws on the same or similar subjects.” Occhino at 360 (citing Minn. Stat. § 645.16). Although both parties have speculated about the legislative intent of MinmStat. § 340A.702(6), the record does not contain evidence or argument about the legislative history of the statute. Our own research indicates that in 1967, when the current law was enacted, the legislature simultaneously repealed a similar provision, which provided:

Any person who shall sell or dispose of any intoxicating liquor ... .within 1,000 feet of any of the following named state institutions: The St. Peter state hospital for the insane, the Rochester state hospital for the insane, the Fergus Falls state hospital for the insane, the first state asylum for the insane at Anoka, the second state asylum for the insane at Hastings, the state training school at Red Wing, the Minnesota home school for girls at Sauk Center, the state reformatory at St. Cloud, the state prison at Stillwater, the state public school at Ow-atonna, the state sanatorium for consumptives at Walker, the hospital for crippled and deformed children at St. Paul, and the state hospital for inebriates at Willmar, shall be guilty of a gross misdemeanor....

MinmStat. § 624.703 (1965) (repealed 1967). In that statute, as in Minn.Stat. § 340A.702(6), all of the specifically named institutions are state institutions. The change in the wording of the statute appears to have been designed to eliminate the need to separately list each institution and to define in a more generic manner the set of institutions covered by the statute. Retention of the adjective “state” in the new version appears to carry forward what was formerly a clear limitation of the application of the statute to state institutions. And nothing in the wording of section 340A.702(6) expresses an intent to expand the criminalization of the prohibited acts to county institutions. Insofar as we can determine legislative intent and continuity, these factors weigh in favor of appellant’s argument that the statute applies only to state institutions.

Regarding agency interpretation and consistency with similar laws, appellant presented evidence to the district court of a letter from the Cass County Attorney declining to interpret section 340A.702(6) as applying to the county jail, and an affidavit attesting to the fact that at least four establishments licensed for on-sale liquor sales are located within 1,000 feet of the Cass County jail despite Minn.Stat. § 340A.412, subd. 4(a)(5) (2002), which prohibits licensing of intoxicating liquor sales “within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections ...” The record is devoid of evidence of any prosecutions under Minn.Stat. § 340A.702(6), or any denial of licenses to non-municipal establishments under the identical provisions of Minn.Stat. § 340A.412, subd. 4(a)(5), for sales in proximity to a county jail, indicating that neither law has been interpreted by the licensing authority or by county attorneys to apply to county jails. Appellant argues that to embrace respondents’ construction of the statute would lead to absurd or unreasonable results, asserting that the state is riddled with liquor establishments located within 1,000 feet of institutions under the partial control of the Commissioner of Human Services or the Commissioner of Corrections, given the broad licensing authority of those departments. Despite the absence of support in the record for the assertion of the number of existing liquor establishments located within 1,000 feet of county jails, there is sufficient evidence to conclude that in the City of Walker alone the construction of the statute urged by respondents would have significant consequences. And the consequences of a particular interpretation is a factor to be considered by the court in ascertaining the legislative intent.

Additionally, construction of the statute to criminalize the conduct of the city makes the city a potential criminal defendant. And “where doubt exists as to legislative intent of a penal statute, doubts must be resolved in favor of the defendant.” State v. Serstock, 402 N.W.2d 514, 516 (Minn.1987).

DECISION

Minn.Stat. § 340A.702(6) (2002), is ambiguous regarding whether it applies to sales within 1,000 feet of a county jail, which indisputably is supervised or controlled in part by the Commissioner of Corrections. Applying the principles of statutory construction, we conclude that the statute refers only to sales within 1,000 feet of a state institution, and the statute does not apply to prohibit liquor sales within 1,000 feet of a county jail.

Reversed.

      . The legislature enacted Minn.Stat. § 340.14, subd. 3, in 1967. In 1985, the provision was moved from section 340.14, subdivision 3, to section 340A.702(6).

      . Minn.Stat. § 645.16(5) (2002)' specifically directs us to ascertain the intention of the legislature by considering, among other matters, "the former law, if any, including other laws upon the same or similar subjects."

      .Because municipal liquor stores are established through the provisions of Minn.Stat. § 340A.601, no license is involved in the operation of a municipal liquor store.

      . Although not briefed by the parties, a question was raised at oral argument about whether limiting application of the statute to state institutions would violate Minn.Stat. § 645.16 (2002), which requires that every law be construed, if possible, to give effect to all its provisions, because there is no evidence in the record that any state institutions exist that are supervised or controlled only in part by the Commissioner of Human Services or the Commissioner of Corrections. Because the current codification of the statute appears to have been drafted to include new institutions within the intended category as they are created, without having to continually amend the statute to name specific institutions, we do not find this lack of evidence fatal to appellants’ argued construction.


author: TOUSSAINT, Chief Judge.

text:
    In the Matter of CHISAGO LAKES SCHOOL DISTRICT, Independent School District No. 2144, and J.D.
    No. A04-1615.
    Court of Appeals of Minnesota.
    Jan. 4, 2005.

      Margaret O’Sullivan Kane, Center for Education Law, Ltd., St. Paul, MN, for relator.
    Martha J. Casserly, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Department of Education.
    Paul C. Ratwik, Isaac Kaufman, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondent ISD # 2144.
    Considered at Special Term and decided byTOUSSAINT, Chief Judge; WILLIS, Judge; and HUDSON, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

FACTS

J.D., a minor child, attends school in the Chisago Lakes School District, Independent School District No. 2144 (the district). J.D. receives special education and related services from the district. In February 2004, the district initiated an administrative hearing under Minn.Stat. § 125A.091, subd. 12 (Supp.2003), seeking a determination that J.D. is no longer eligible for special education services. The Commissioner of Education appointed a hearing officer, who conducted an evidentiary hearing. In a decision dated June 30, 2004, the hearing officer ruled that the district should be permitted to terminate special education services to J.D. because J.D. no longer meets the eligibility criteria.

On August 30, 2004, appellants, the parents of J.D., served and filed a notice of appeal and statement of the case, challenging the hearing officer’s decision. This court questioned whether appellants should have obtained a writ of certiorari rather than filing a direct appeal. Appellants and the district filed informal briefs.

DECISION

Before Minn.Stat. § 125A.091 (Supp.2003) was enacted, the procedure for an administrative decision pertaining to the identification, assessment, and educational placement of children with a disability was governed by MinmStat. § 125A.09 (2002). The former procedure involved a due process hearing initiated and conducted by and in the district responsible for providing services, with the right to obtain review of the local decision by a hearing review officer. Id., subds. 6, 7, 9. The statute allowed an appeal from the hearing review officer’s decision to this court in accordance with chapter 14. Id., subd. 10. Proceedings for judicial review under chapter 14 are instituted by serving and filing a petition for a writ of certiorari not more than 30 days after the party receives the final decision and order of the agency. Minn.Stat. §§ 14.63, 64 (2002).

In 2003, Minn.Stat. § 125A.09 was repealed and replaced by Minn.Stat. § 125A.091.2003 Minn. Laws 1st Spec. Sess. ch. 9, art. 3, §§ 9, 21. The new procedure entitles a parent or the school district to an impartial due process hearing conducted by the state when a dispute arises over the identification or provision of services to a child with a disability. MinmStat. § 125A.091, subd. 12(a). The parent or district may seek review of the hearing officer’s decision by this court. Id., subd. 24. A party must “appeal” to this court within 60 days of receiving the hearing officer’s decision. Id. But the new statute does not indicate that state judicial review must be in accordance with chapter 14, nor does the new statute indicate how an “appeal” to this court should be made.

“[I]n the absence of an adequate method of review or legal remedy, judicial review of the quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari.” Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992). “Because it mandates nonintrusive and expedient judicial review, certiorari is compatible with the maintenance of fundamental separation of power principles, and thus is a particularly appropriate method of limiting and coordinating judicial review of the quasi-judicial decisions of executive bodies.” Id.

The district argues that because the underlying proceeding is a contested case as defined by chapter 14, the Administrative Procedure Act, certiorari review is appropriate under Minn.Stat. §§ 14.63-.69. Although MinmStat. § 125A.091, subd. 24, does not refer to an appeal by certiorari or to chapter 14, the court contends that the new statute does not change the method of appeal, but rather simply increases the time to petition for a writ of certiorari from 30 days to 60 days.

Appellants argue that MinmStat. § 125A.091, subd. 24, should be construed as authorizing a direct appeal to this court, rather than a certiorari appeal. This court has “appellate jurisdiction over all courts, except the supreme court, and other appellate jurisdiction as prescribed by law.” Minn. Const, art. VI, § 2. Except as provided by statute, a direct appeal may be taken from “a final order, decision, or judgment affecting a substantial right made in an administrative or other special proceeding.” Minn. R. Civ.App. P. 103.03(g).

Because Minn.Stat. § 125A.091, subd. 24, simply provides for an “appeal” to this court and does not specify the appropriate method of obtaining judicial review, we will accept jurisdiction over this direct appeal from the hearing officer’s June 30, 2004 decision. But in view of the policy reasons favoring certiorari review of the quasi-judicial decisions of executive bodies, as explained in Dietz, 487 N.W.2d at 239, we resolve the ambiguity in MinmStat. § 125A.091, subd. 24, regarding the method of appeal by holding that in future cases, review of the hearing officer’s decision shall be by certiorari. Because the underlying proceeding is analogous to a contested case hearing under the Administrative Procedure Act, certiorari review shall be in accordance with Minn.Stat. §§ 14.63-.69, except that, as prescribed by Minn.Stat. § 125A.091, subd. 24, the appeal period shall expire within 60 days after the party appealing receives the hearing officer’s decision.

Appeal to proceed.


text:
    Lars ROTH, Appellant, v. Mark C. WEIR, et al., Respondents, Andrew J. Phillips, et al., Respondents, Eldon J. Hall, et al., Respondents.
    No. A04-885.
    Court of Appeals of Minnesota.
    Jan. 4, 2005.

      William D. Paul, Duluth, MN, for appellant.
    Mark C. Weir, Tower, MN, pro se respondent.
    Andrew J. Phillips, Phillips & Newman, Ltd., Virginia, MN, pro se respondent.
    William E. Defenbaugh, Jr., Ely, MN, for respondents.
    Eldon J. Hall, Ely, MN, pro se respondent.
    Considered and decided by TOUSSAINT, Chief Judge; SHUMAKER, Judge; and HALBROOKS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal from a summary judgment stating that appellant-covenantee failed to bring his action on a deed before the statute of limitations expired, covenantee argues that the district court erred in ruling that his cause of action accrued when the deed was delivered. Because covenantee brought his action within the statutory period after a third party successfully asserted an interest in the land contrary to covenantee’s interest, we reverse and remand.

FACTS

In June 1990, Scott Newman sold various assets to Mark Weir, including a 1/3 interest in a building. Weir’s obligations to pay Newman were secured by, among other things, a second mortgage on at least part of the building, naming Weir as mortgagor and Newman as mortgagee (Newman mortgage). The remaining 2/3 interest in the building was owned, 1/3 each, by Andrew Phillips and Eldon Hall. Weir, Phillips, and Hall sold the building to Lars Roth in October 1990 on a contract for deed with a one-year balloon payment. That contract for deed was later extended six months.

In January 1992, Weir wrote to Newman, stating that when Roth paid off his contract for deed in April 1992, Weir would be required to produce a satisfaction of the Newman mortgage or a release. Weir asked whether Newman would provide a satisfaction or had other suggestions for clearing title. Newman responded, stating that he would provide a partial satisfaction, and encouraged Weir to use his portion of the proceeds of Roth’s balloon payment to pay off the Newman mortgage. Roth paid off the contract for deed but did not get a deed for the building, Weir did not pay off the Newman mortgage, and Newman did not provide a satisfaction of the mortgage.

In April 1992, Weir made one year’s worth of payments on the Newman mortgage, but did not make another payment until 1997.

In 1995, Roth sought to refinance certain debt by, among other things, mortgaging the building. In connection with Roth’s attempted mortgage, Weir examined title for the building. The title-opinion process revealed, among other things, that Roth was not the record owner of the building. The opinion stated that the building was owned by Weir, Phillips, and Hall, was subject to, among other things, the contract for deed to Roth, first and second mortgages, and a 1995 notice of mortgage foreclosure. But the title opinion did not identify which mortgage was being foreclosed.

As a result of this information, in early 1996, Weir, Phillips, and Hall, and their wives, executed a warranty deed in favor of Roth for the building. The warranty deed stated that the property was unencumbered. Apparently, the deed was never physically presented to Roth, but the bank directed Weir to have the deed recorded. Weir then attempted to contact Roth to get his social security number and to obtain the recording fee. Roth did not respond, and on June 17, 1996 Weir sent the deed to the county. The county received it on June 21, 1996 and recorded it on June 27,1996.

Newman later sought to foreclose his mortgage, seeking to do so by advertisement. In June 2001, Weir and Roth sued Newman in a declaratory judgment action, arguing that the foreclosure was defective. The district court later allowed Newman to amend his counterclaim to seek foreclosure by action. After trial, the court issued a June 13, 2001 ruling granting foreclosure by action, allowing a mortgage foreclosure sale of the property, and granting a deficiency judgment against Weir. On June 27, 2002, Roth sued Weir, Phillips, and Hall, and their wives, as the signatories of the 1996 deed. Weir argued that because the deed incorrectly stated that the land was unencumbered, the signatories breached the warranties in the warranty deed and committed fraud and misrepresentation. This case was assigned to the same judge who heard the declaratory judgment action.

On cross-motions for summary judgment, the district court ruled that (a) Roth’s cause of action accrued when the defective deed was delivered; (b) the deed was delivered on or before June 21, 1996 when it was received by the county for recording purposes; and therefore (c) Roth’s June 27, 2002 suit against Weir, Phillips, and Hall, and their spouses, was untimely under Minn.Stat. § 541.05, subd. 1 (2002). Roth appeals.

ISSUES

1. May this court address Roth’s argument that his suit is premature?

2. Did the district court correctly apply the statute of limitations?

ANALYSIS

Actions brought on contracts or other obligations not addressed by a specific statute of limitations, and actions on a liability created by statute, are subject to a six-year statute of limitations. Minn.Stat. § 541.05, subd. 1(1), (2) (2002). Here, the district court ruled that (1) Roth’s cause of action accrued when the deed was delivered; (2) the deed was delivered on or before June 21, 1996 when it was received by the county to be recorded; and therefore (3) Roth’s June 27, 2002 suit was untimely. On appeal from a summary judgment, appellate courts

review whether there are any genuine issues of material fact and whether the district court erred in its application of the law. We view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.

STAR Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.2002) (citations omitted).

I.

Roth argues that the district court erred in ruling his suit to be untimely because his cause of action does not accrue until he has paid off the encumbrance, which he has not yet done. Thus, on appeal, Roth is essentially arguing that his own suit is premature. Respondents argue that Roth cannot argue to this court that his suit is premature because he did not make that argument in district court. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating parties generally allowed to raise neither new issues nor new theories on appeal).

Roth argues that the issue is properly before this court because Phillips and Hall raised it in district court. In a dispute involving riparian lands, the supreme court noted that “a party may not try his case under a legal theory chosen by him, and, being unsuccessful therein, subsequently complain upon appeal here that such chosen theory was really not the correct one after all.” State v. Adams, 251 Minn. 521, 549, 89 N.W.2d 661, 680 (1957). Adams is consistent with the general idea that a party cannot switch theories on appeal. Thiele, 425 N.W.2d at 582. Thus, while Phillips and Hall argued, in district court, that Roth’s suit was premature, because Roth did not, he is switching theories on appeal and has not properly preserved the question for appeal.

Appellate courts have a limited ability to address issues not properly preserved for appeal. “[0]n rare occasions” appellate courts have exercised [their] discretion to allow a party to proceed on a theory not raised at trial.” Cohen v. Cowles Media Co., 479 N.W.2d 387, 390 (Minn.1992); see Minn. R. Civ.App. P. 103.04 (stating appellate courts “may” review “any” matter as “justice may require,” but that the scope of review “may be affected by whether proper steps have been taken to preserve issues for review on appeal”). There is

a “well-established” exception to the general rule [that a party may not raise an issue on appeal that the party did not preserve for appeal]:
[A]n appellate court may base its decision upon a theory not presented to or considered by the trial court where the question raised for the first time on appeal is plainly decisive of the entire controversy on its merits, and where, as in [cases] involving undisputed facts, there is no possible advantage or disadvantage to either party in not having had a prior ruling by the trial court on the question.
Factors favoring review include: the issue is a novel legal issue of first impression; the issue was raised prominently in briefing; the issue was “implicit in” or “closely akin to” the arguments below; and the issue is not dependent on any new or controverted facts.

Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 687-88 (Minn.1997) (citations and emphasis omitted). Here, because ruling that the action is not untimely would allow future litigation, the issue is not “decisive of the entire controversy on its merits.” Also, case law addresses when the limitations period starts for breaches of a deed’s covenant of seisin. Brooks v. Mohl, 104 Minn. 404, 406, 116 N.W. 931, 931 (1908). Therefore, the question is not “a novel issue of first impression.” The issue, however, was raised prominently in the briefing to this court, and the district court’s ruling that Roth’s suit was untimely because he brought it more than six years after delivery of the deed shows that, “implicit in” the district court’s ruling, is the idea that the limitations period began to run with the delivery of the deed. Finally, as discussed in Issue II below, application of the Brooks analysis regarding when the limitation period for a breach of the covenant of seisin begins to run “is not dependant on any new or controverted facts.”

Of the Watson factors to be considered when deciding whether to exercise our limited discretion to address an issue not properly preserved for appeal, three weigh in favor of addressing the question. Additionally, because the question was raised in district court, albeit by Phillips and Hall, the appeal will not be the first time the question is presented for decision. Therefore, we will exercise our discretion to address that issue here. Cf. State v. Hannuksela, 452 N.W.2d 668, 673-74 n. 7 (Minn.1990) (addressing appellate court’s responsibility to decide cases in accordance with existing law); Greenbush State Bank v. Stephens, 463 N.W.2d 303, 306 n. 1 (Minn.App.1990) (applying Hannuksela in a civil case), review denied (Minn. Feb. 4, 1991).

II.

Roth argues that his suit cannot be untimely because his cause of action does not accrue until he has satisfied the encumbrance or been otherwise damaged, which has not yet occurred. In Brooks, 104 Minn. at 405, 116 N.W. at 931, Mohls transferred certain land by warranty deed to Brooks, who occupied it until his death. After Brooks’s death, his heirs occupied the land. Id. Thirteen years after the warranty deed, third parties started a partition action that resulted in the heirs of Brooks being ruled to own an undivided 9/15ths interest in the land, while each of three others was ruled to own an undivided 2/15ths interest in the land. Id. The heirs of Brooks then purchased the various interests in the land that they did not own and, 16 years after delivery of the deed, sued Mohls for breach of the covenants in the deed. Id. In rejecting the argument that the heirs’ suit was untimely because it was brought more than six years after the deed was delivered, the supreme court stated:

Undoubtedly, for some purposes, the covenant [of] seisin is regarded as broken by failure of title as soon as the deed is delivered; but for the present purposes that rule is not properly invoked. It is the settled law of this state, in conformity with the general opinion on the subject, that “if, at the date of the covenant, there is a superior title outstanding in a third person, whenever that title is actually asserted against the covenantee, the premises are claimed under it, and the covenantee is obliged to yield, and does yield, his claim to the superior title, the covenant is broken.”

Id. at 406, 116 N.W. at 931 (citations omitted). The supreme court also stated that “[t]he judgment in the partition suit was a sufficient eviction to constitute a breach of covenant, and the purchase ... of the outstanding title by the covenantee, after resistance in good faith, in no [way] affected the sufficiency of the eviction.” Id. Furthermore, “[t]he purchase [was] equivalent to an entry of the claimant.” Id. To rule otherwise, the supreme court stated, would put the covenantee in a situation where “the covenantee, in unopposed possession for six years without notice of adverse claim of title, might be evicted and have no remedy against his grantor. His cause of action would be barred before he would know of its existence.” Id. at 406, 116 N.W. at 931-32.

Thus, because ruling that the limitations period starts when the defective deed is delivered could leave a cove-nantee with no remedy where the adverse interest is not asserted until more than six years after the delivery of the deed, the delivery of a defective deed is not sufficient to start the six-year limitations period. A third party’s successful assertion of an interest in the property contrary to the interest of the covenantee, however, is sufficient to start the running of the limitations period. Here, Roth commenced his action within six years of Newman’s successful mortgage-foreclosure proceeding. Thus, under Brooks, we conclude that Roth’s action was not untimely, and we reverse the district court on that point. This holding is similar, but not identical, to that of Soderberg v. Holt, 86 Utah 485, 46 P.2d 428 (1935) where, after surveying cases from numerous jurisdictions, including Minnesota’s Brooks decision, the Utah Supreme Court ruled that “a covenant against encumbrances is, in effect, a covenant to indemnify where the encumbrance is a charge or lien against the land which can be extinguished by payment” and that the limitations period “can be held to begin to run only when the grantee is damni-fied[]” Id. at 433.

Because Roth’s action is not untimely, we need not address the parties’ disputes about when the deed was delivered.

DECISION

While Roth did not properly preserve for appeal the question of whether his suit was premature, on this record, we will exercise our limited discretion to address that question. The delivery of a defective deed is not sufficient to start the limitations period, but the successful assertion of an interest in property contrary to the covenantee’s interest is sufficient to start the running of the limitations period. Here, Roth’s suit, brought within six years of the foreclosure of Newman’s mortgage, was not untimely.

Reversed and remanded.

      . "damnify, vb. To cause loss or damage to; to injure <the surety was damnified by the judgment obtained against it>.” Black’s Law Dictionary, 397 (7th ed.1999).