author: KLAPHAKE, Judge.

text:
    Elizabeth Soll BRODSKY, petitioner, Respondent, v. Joseph Alan BRODSKY, Appellant, and Nancy L. Ponto, Intervenor.
    No. A06-736.
    Court of Appeals of Minnesota.
    May 29, 2007.

      Ralph V. Mitchell, Jr., Jeffrey A. Tim-merman, Lapp, Libra, Thomson, Stoebner & Pusch, Chartered, Minneapolis, MN for respondent.

      Robert E. Kuderer, Stacey A. Nilsen, Johnson & Condon, P.A., Minneapolis, MN for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, KLAPHAKE, Judge, and WILLIS, Judge.
   OPINION

KLAPHAKE, Judge.

This appeal involves appellant Joseph Brodsky’s challenges to the district court’s rulings on respondent Elizabeth Soil Brod-sky’s attempts to enforce a 1997 dissolution judgment. In particular, appellant challenges the grant of conduct-based attorney fees to respondent for amounts she incurred during enforcement proceedings that were ancillary to the dissolution. Appellant also challenges the grant of prejudgment interest to respondent on the amount she paid in partial satisfaction of one of appellant’s nonmarital debts.

Because the record shows that the ancillary proceedings were sufficiently related to the dissolution proceeding, that respondent’s participation in the ancillary pro- ■ ceedings was necessary to protect interests awarded to her in the dissolution, and that appellant’s conduct in the ancillary proceedings supports an award of conduct-based attorney fees, we affirm the award of attorney fees. Because the award of prejudgment interest was necessary to protect the integrity of the dissolution judgment, we affirm the grant of prejudgment interest, and because appellant has not shown that the district court otherwise abused its discretion, we affirm the district court’s other rulings. We finally grant respondent’s motion to strike.

FACTS

The parties’ 1997 dissolution judgment directed appellant to pay $62,822.64 in conduct-based attorney fees and awarded respondent property in lieu of maintenance, including the parties’ 50 percent interest in a real-estate partnership. The judgment also divided the marital property, directed appellant to account for certain investment accounts, and ordered appellant to pay certain debts, including a debt to the Northeast State Bank that the district court found was appellant’s nonmarital obligation.

Appellant thereafter failed to satisfy his obligations under the judgment and filed bankruptcy. His parents, who owned the other 50 percent of the real-estate partnership, allowed appellant to become involved in the running of the partnership. Because appellant’s operation of the partnership was hostile to respondent, her attorney, Nancy Ponto, sought to dissolve the partnership and sell certain of its properties to allow respondent to access the equity therein. Ponto also filed adversary proceedings in appellant’s bankruptcy to protect what had been awarded to respondent in the dissolution and to protect the fees owed to her.

Ponto further sought to recover her unpaid fees from respondent by filing attorney liens on property awarded to respondent in the judgment. Respondent, who had by then terminated her relationship with Ponto and had retained new counsel, disputed both the amount of fees owed and the validity of the attorney liens. Ponto also intervened in the dissolution proceeding seeking to protect her interests; the district court ruled for respondent, this court reversed and remanded, the district court again ruled for respondent, and this court again reversed. See Brodsky v. Ponto, 2000 WL 890416, No. C9-99-1693 (Minn.App. July 3, 2000) (Brodsky I); Brodsky v. Brodsky, 639 N.W.2d 386 (Minn.App.2002), review denied (Minn. Apr. 23, 2002) (Brodsky II).

In appellant’s bankruptcy, the court declined to address whether appellant’s obligations under the dissolution judgment were dischargeable. Respondent brought a motion in district court to prevent appellant from discharging $73,576.15, plus interest, that respondent owed Ponto; $25,000, plus interest, that respondent had paid on appellant’s nonmarital Northeast State Bank debt; the amount that appellant owed to respondent on the balance of the accounts awarded to her in the dissolution; and $109,844.67 in attorney fees and costs incurred by respondent in pursuing these awards. Appellant admitted that the obligations imposed on him in the dissolution judgment were nondischargeable but opposed letting respondent recover any amount not awarded in the dissolution judgment.

At the hearing on respondent’s motion, the district court twice asked appellant’s attorney to address respondent’s claims, particularly her claims for attorney fees. After appellant made no post-hearing submissions, the district court issued a December 12, 2005 order awarding respondent $25,000, plus interest, for her payment of appellant’s Northeast State Bank debt; $23,134, plus interest, for the accounts enumerated in the judgment; $94,651.69 in post-judgment attorney fees; and interest on the attorney fees awarded in the judgment.

Appellant thereafter sought relief from the December 12 order. His motion was supported by affidavits, an exhibit, and a memorandum in which he sought amended findings, a new trial, or summary judgment. After a hearing, the district court issued a May 1, 2006 order and memorandum striking appellant’s affidavits and exhibit as not properly before the court. The district court also ruled that appellant’s motion was procedurally improper because new evidence is not permitted in a motion for amended findings, because the lack of a trial meant there could be no “new” trial, and because appellant’s motion was functionally a motion for reconsideration, which is prohibited “except by express permission of the court” under Minn. R. Gen. Pract. 115.11.

On appeal here, appellant’s brief includes the materials stricken by the district court. Respondent’s motion to strike these materials has been deferred to this panel.

ISSUES

1. Did the district court abuse its discretion by awarding respondent attorney fees?

2. Does the doctrine of laches preclude respondent’s claim to recover certain funds appellant allegedly disbursed from certain accounts?

3. Did the district court err by awarding respondent prejudgment interest?

4. Did the district court abuse its discretion by denying appellant’s motion for amended findings or a new trial?

5. Should we grant respondent’s motion to strike?

ANALYSIS

I.

The district court awarded respondent a total of $94,651.69 in post-judgment, conduct-based attorney fees, including $52,214.50 billed in connection with respondent’s representation in her attorney-fee dispute with Ponto and in appellant’s bankruptcy, $22,386.19 for post-judgment matters billed by Ponto, most of which were incurred in ancillary proceedings involving dissolution of the real-estate partnership, and an additional $20,051 billed by a third attorney for defending respondent against Ponto’s claim for unpaid attorney fees. Appellant challenges these awards.

In proceedings “under” chapter 518, a district court may, “in its discretion,” award attorney fees “against a party who unreasonably contributes to the length or expense of the proceeding.” Minn.Stat. § 518.14, subd. 1 (2006). An award of conduct-based attorney fees is reviewed for an abuse of discretion. Sharp v. Bilbro, 614 N.W.2d 260, 264 (Minn.App.2000), review denied (Minn. Sept. 26, 2000). Conduct occurring outside the litigation process cannot support an award of conduct-based attorney fees, but if an award of conduct-based fees is proper, it may be made regardless of the recipient’s need or the payor’s ability to pay. Geske v. Marcolina, 624 N.W.2d 813, 818, 819 (Minn.App.2001).

Attorney Fee Dispute

Appellant argues that the award to respondent of attorney fees for the litigation of her attorney-fee dispute with Ponto was improper because respondent did not incur these fees in the marital dissolution. We disagree. Respondent’s attorney-fee dispute was litigated in the dissolution proceeding: the prior appeals in this matter both involved respondent’s attorney-fee dispute, and both appeals named Ponto as an intervenor in the dissolution. Brodsky II, 639 N.W.2d at 392-93; Brodsky I, 2000 WL 890416, at *5.

Appellant also argues that the fee award is improper because the fees were not necessary to “carry on or contest” the dissolution. Minn.Stat. § 518.14, subd. 1. Again, we disagree. A finding that the award is necessary to “carry on or contest” the proceeding, is required for a need-based award, not for a conduct-based award of fees. Id.

Appellant next argues that the argument made by respondent in her fee dispute was frivolous, and that he should not have to finance frivolous litigation. In support of his argument, he cites the following language from Brodsky II:

[Respondent] could not reasonably have believed that her obligation to pay Ponto was transferable [to appellant]. She testified that she read Ponto’s representation agreement and had it reviewed by a retired attorney. It provides
[T]he court may order your spouse to pay part or all of your fees and out-of-pocket expenses. Court orders requiring payment on your behalf of fees and expenses will not affect our Agreement and do not in any way limit the amount of fees. You are primarily liable for payment of your total bill with us and will be expected to pay according to the terms of this Agreement.
[Respondent] also testified that Ponto had told her that she was responsible for the total bill.

Id., 639 N.W.2d at 393.

While respondent did not prevail in her dispute with Ponto, her argument was not clearly frivolous. Before Brodsky II resolved the fee question against respondent, the district court had twice ruled in her favor, and this court remanded the question once because of the lack of a full record. See Brodsky I, 2000 WL 890416, at *5-6. Moreover, appellant’s conduct during the dissolution necessitated the fee award, and his subsequent refusals to pay that award forced Ponto to seek payment from respondent and for respondent to dispute that payment. Thus, respondent’s fees would not have been incurred had appellant either not acted in bad faith or if he had timely paid his obligations under the judgment. We therefore reject appellant’s argument that he should not have to pay the attorney fees, which were incurred solely because of his conduct.

Appellant further argues that respondent should have avoided the fee dispute with Ponto by paying the fees. While this would have allowed respondent to avoid the hens Ponto placed on property awarded to respondent under the judgment, it would have required respondent to liquidate property awarded to her in lieu of maintenance. Appellant essentially argues that respondent should have used what was awarded to her in lieu of maintenance to pay attorney fees caused by him and for which he was responsible, a clear example of conduct that contributes to the length and cost of a proceeding. Enforcement proceedings can be a basis for a conduct-based fee award. See Kronick v. Kronick, 482 N.W.2d at 533, 536 (Minn.App.1992).

Bankruptcy Fees and Dissolution of Partnership

The district court awarded respondent attorney fees both for the intervention in appellant’s bankruptcy and the dissolution of the real-estate partnership. Appellant argues that these awards are inappropriate because they were not incurred in the marital dissolution. Questions of statutory interpretation and of the application of a statute to undisputed facts are questions of law this court reviews de novo. Nash v. Wollan, 656 N.W.2d 585, 589 (Minn.App.2003), review denied (Minn. Apr. 29, 2003); Dachtera v. Whitehouse, 609 N.W.2d 248, 249 (Minn.App.2000).

While appellant’s bankruptcy and the partnership dissolution were ancillary to the marital dissolution, this fact, by itself, does not render the fee awards improper. A categorical prohibition on awards of attorney fees that a party may incur in proceedings ancillary to the dissolution would undercut Minn.Stat. § 518.14, subd. 1, which allows an award of fees for conduct that frustrates, delays, or increases the costs of a dissolution. Nevertheless, the critical question is whether the ancillary proceedings are legitimate or merely pretextual.

Thus, for fees incurred in an ancillary proceeding to be the subject of a viable motion for conduct-based attorney fees under Minn.Stat. § 518.14, subd. 1, several criteria must exist: (1) the ancillary proceeding must be sufficiently related to the marital dissolution to be more than merely coincidental; (2) the fees in the ancillary proceeding must be necessary to protect some interest awarded to the fee-seeking party in the dissolution; and (3) the potential obligor’s conduct in the ancillary proceeding must be conduct that, if it occurred in the dissolution, would satisfy the requirements for a conduct-based fee award under Minn.Stat. § 518.14, subd. 1. The district court must make findings to explain an award of conduct-based attorney fees, whether in the dissolution proceedings or in a legitimate ancillary proceeding.

Here, the district court’s findings are adequate to support its decision to deem the relevant portions of appellant’s bankruptcy and the partnership dissolution to be legitimately related to the dissolution. The findings are also sufficient to support its determinations regarding the necessity of respondent’s participation in those ancillary proceedings and appellant’s conduct therein.

Moreover, the record supports those findings. The record shows that respondent was legitimately concerned about the impact of appellant’s bankruptcy obligations on her. And the memorandum accompanying the district court’s May 1, 2006 order recognizes that the dissolution judgment awarded respondent the interest in the partnership as “a form of maintenance,” states that appellant did not respond to respondent’s allegations about his conduct, and concludes that the fees respondent incurred in the dissolution of the partnership were “properly awarded to [respondent] as necessary to enforcement of the maintenance order.” On this record, we will not reverse the award of attorney fees to respondent for her participation in appellant’s bankruptcy and the dissolution of the real estate partnership.

II.

Respondent sought the balance of the investment accounts awarded to her in the dissolution. By affidavit, appellant claimed that he satisfied this obligation in June 1997. At the hearing on respondent’s motion, appellant’s attorney stated: “So, we’ve sat on this case for over eight years now, and now [respondent has] decided that she doesn’t have [the funds from the accounts]. That’s, ahmm — That’s lach-es. It’s laches and it’s bad faith.” Laches was not otherwise presented to the district court, and the court awarded respondent the funds without explicitly addressing laches. Appellant argues that the district court should have addressed laches.

The district court’s failure to address an issue raised only in a concluso-ry fashion and without supporting affidavits, or testimony, or argument is not error. Cf. Balder v. Haley, 399 N.W.2d 77, 80 (Minn.1987) (noting argument is waived if not briefed). We will not address an issue not properly raised before the district court. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating appellate court generally address only issues presented to and considered by the district court). In any event, we note that an implicit rejection of appellant’s laches argument is consistent with the district’s court findings on appellant’s other bad-faith conduct in this case. Cf. Froats v. Froats, 415 N.W.2d 445, 447 (Minn.App.1987) (unclean hands precludes laches).

III.

The dissolution judgment ruled that the debt to Northeast State Bank, a mortgage on the home occupied by respondent and the children, was not part of the marital estate. The court ordered appellant to pay the debt, on which respondent had paid $25,000, by May 2, 1999. The district court awarded respondent prejudgment interest as of May 2, 1999 on the amounts she had paid, and appellant challenges this award.

Noting that respondent did not start an action or give notice of a claim on May 2, 1999, appellant argues that the prejudgment interest statute does not apply here because pre-award interest on pecuniary damages is generally available only from the earlier of “commencement of the action or a demand for arbitration, or the time of a written notice of claim[.]” Minn.Stat. § 549.09, subd. 1(b) (2006). District courts may implement judgments in the manner necessary to effectuate their purpose if doing so does not alter the parties’ rights, however. See Potter v. Potter, 471 N.W.2d 113, 114 (Minn.App.1991). Because the judgment recognized that respondent, as of 1997, was not responsible for the debt, the failure to award her interest on the payments made would alter her rights under the judgment. Cf. Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn.App.1987) (when court delays payment of property settlement or allows payment over time, it must require payment of interest or explain why it did not do so).

Appellant also argues that his obligation to pay the debt was part of the property division and unable to be modified by the award of interest. See Minn.Stat. § 518A.39, subd. 2(f) (2006) (reciting final nature of property awards). But because the judgment merely recognized that the debt was appellant’s nonmarital obligation, awarding respondent interest does not alter the division of marital property.

Appellant also makes the otherwise unsupported assertion that awarding interest retroactively circumvented the automatic bankruptcy stay. A party who inadequately briefs an argument waives that argument. Dep’t of Labor & Indus, v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997). In certain circumstances, interest on debts that are not dischargeable in bankruptcy are recoverable from a bankruptcy debtor. In re Boccio, 281 B.R. 171, 175 (Bankr.E.D.N.Y.2002). For these reasons, we affirm the award of prejudgment interest.

IV.

Appellant moved for amended findings and submitted new affidavits and an exhibit in support of his motion. The district court stated that appellant’s reliance on these materials made his motion one to reconsider rather than for amended findings. Because appellant had not obtained permission to move for reconsideration, the district court struck the affidavits and exhibit, and ruled that whatever the nature of appellant’s motion, it was procedurally inappropriate, and denied relief. See Minn. R. Civ.App. P. 115.11.

Appellant argues that respondent’s motion prompting the December 12 order presented only the issues of whether appellant’s Northeast State Bank debt and his attorney fee sanction were dischargea-ble in bankruptcy, and that the district court erred in issuing an order going beyond these questions without allowing him to enter evidence. At the hearing, the district court sought submissions from appellant regarding respondent’s attorney fee assertions and her property-in-lieu-of-maintenance arguments. When appellant did not respond, the district court issued the December 12 order. Thus, the December 12 order, from which appellant sought relief, was prompted in significant part by his failure to respond to the district court’s requests for information and did not constitute an abuse of discretion. See Preferred Fin. Corp. v. Quality Homes, Inc., 439 N.W.2d 741, 743 (Minn.App.1989) (stating district court’s denial of the parties’ motions for amended findings or a new trial will not be disturbed on appeal absent a clear abuse of discretion).

We reject any claim that appellant was unaware of the relief respondent sought in her motion. Respondent’s amended motion asked the district court to declare nondischargeable appellant’s obligations to pay the attorney fees and interest respondent owed her former attorney, the Northeast State Bank debt “plus accrued interest!,]” the balance of accounts awarded respondent in the judgment, and the attorney fees incurred in enforcing these obligations.

V.

Appellant included stricken materials in the appendix to his brief and based some of his arguments on those materials. Respondent moves to strike these materials and appellant’s references to them in his appellate brief. The record on appeal is defined by Minn. R. Civ.App. P. 110.01 and does not include materials stricken by the district court. “Appellate courts may not consider matters outside the record on appeal and will strike references to such matters from the parties’ briefs.” Stageberg v. Stageberg, 695 N.W.2d 609, 613 (Minn.App.2005) (quotation omitted), review denied (Minn. July 19, 2005). While appellant argues that the materials are part of the record because the district court cannot strike materials without submitting its ruling for review, appellant did not challenge the district court’s ruling striking the materials. Therefore, appellant waived his right to challenge this issue, and we grant respondent’s motion to strike. See Balder, 399 N.W.2d at 80.

DECISION

Respondent’s attorney fee dispute with her former attorney was litigated in the parties’ marital dissolution proceeding. Also, the record shows that the relationship of the ancillary proceedings of appellant’s bankruptcy and the dissolution of the real-estate partnership to the parties’ marital dissolution is not merely coincidental, that respondent’s participation in those ancillary proceedings was necessary to protect interests awarded in the marital dissolution, and that appellant’s conduct in the ancillary proceedings justifies an award of conduct-based attorney fees. Therefore, we affirm the district court’s attorney fee award. Appellant’s laches argument was not properly before the district court, is not properly before this court, and we do not address it. Because the award to respondent of prejudgment interest was necessary to protect the integrity of the dissolution judgment, we affirm that award. Also, because appellant’s motion for relief from the December 12, 2005 order was procedurally defective, we affirm the district court’s denial of that motion. Finally, we grant respondent’s motion to strike.

Affirmed; motion granted.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    Dale M. STONE, Respondent, v. JETMAR PROPERTIES, LLC, at al., Defendants, Selwin Ortega, Appellant.
    No. A06-851.
    Court of Appeals of Minnesota.
    June 12, 2007.

      John M. Tancabel, St. Paul, MN; and John D. Hagen, Jr., Minneapolis, MN, for respondent.
    Alex W. Russell, Evening & Weekend Law Offices, St. Paul, MN, for appellant.
    Considered and decided by WORKE, Presiding Judge; LANSING, Judge; and COLLINS, Judge.

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

   OPINION

LANSING, Judge.

This appeal arises out of a series of real-estate transactions that resulted in the foreclosure sale of property that respondent Dale Stone had quitclaimed to a limited-liability company that was not yet organized when he attempted delivery. The foreclosure sale was initiated by Selwin Ortega, to whom the property had been mortgaged. Ortega appeals from an order establishing Stone’s title to the property and providing damages. . Ortega argues that the district court erred by concluding that the quitclaim deed was void, rejecting Ortega’s claim that he was a good-faith purchaser for value, and failing to determine that Stone was equitably estopped from asserting an interest in the property and that Stone’s claims constituted an impermissible collateral attack on a valid judgment. Because we conclude that the quitclaim deed was void and that Stone is not legally or equitably precluded from asserting his interest in the property, we affirm.

FACTS

Keith Hammond drafted and signed articles of organization for Jetmar Properties, LLC, in November 2002, but he did not file the articles with the secretary of state. Later that same year, Hammond, acting as president of Jetmar, offered to buy commercial property from Selwin Ortega. Hammond and Ortega signed a purchase agreement, but the sale did not close because Hammond did not have the money. Nonetheless, based on Hammond’s representation that he needed cash to develop the property into condominiums, Ortega gave Hammond a three-day, unsecured $200,000 loan, which Hammond failed to repay.

In April 2003 Hammond met Dale Stone, a retiree, and convinced him to invest in several of Jetmar’s “real estate ventures.” During the course of their relationship, Stone gave Hammond more than $50,000 in cashiers’ checks for Jet-mar’s various projects. Sometime in May 2003, Hammond asked Stone to quitclaim a duplex to Jetmar to improve Jetmar’s balance sheet, which would allow it to secure financing for a large condominium development. Stone was renting out the property to supplement his social-security income. In exchange for the deed, Hammond promised Stone an interest in the development. Hammond also told Stone that he would deed the property back to Stone “free and clear” in sixty days and that Stone could continue to collect rent. On May 14, 2003, Stone quitclaimed the property to Jetmar. Hammond purported to accept the deed as Jetmar’s president and recorded it the same day.

On May 15, 2003, Hammond mortgaged the duplex to Ortega in exchange for an extension on the $200,000 loan. Ortega recorded the mortgage on May 20, 2003, after checking the title and determining that Jetmar had title to the property by virtue of a quitclaim deed from Stone.

Hammond did not repay the loan or deed the property back to Stone. Sometime around December 2003, Ortega began foreclosure proceedings. Ortega sent the duplex tenants a notice of foreclosure, which they passed along to Stone. Stone confronted Hammond about the mortgage, but he was told that there would be time to redeem and regain title to the property. Based on Hammond’s assurances, Stone did not alert Ortega of his claimed interest. On March 2, 2004, Ortega conducted a sale under the foreclosure-by-advertisement procedures. Because there were no higher bidders, Ortega purchased the property in exchange for the surrender of his $200,000 claim against Jetmar. Hammond filed Jetmar’s articles of organization on March 11, 2004, and received a certificate of organization.

Stone brought this action in October 2004, alleging that Hammond and Jetmar had defrauded him in violation of Minn. Stat. § 325F.69, subd. 1 (2006). Stone sought damages and a declaratory judgment that he was the owner of the duplex. Ortega filed an answer, but Hammond and Jetmar failed to respond. The district court concluded that, because Jetmar did not exist at the time of delivery, it was therefore incapable of taking title to land, and the quitclaim deed was void. Because the quitclaim deed was void, both the mortgage and the foreclosure were also void. The district court also concluded that Ortega was not a good-faith purchaser for value under Minn.Stat. § 507.34 (2006). Based on these conclusions, the court awarded Stone damages and title to the duplex. This appeal followed.

ISSUES

I. Did the district court correctly conclude that Dale Stone’s quitclaim deed to Jetmar Properties, LLC, was void?

II. Is Stone barred by the corporation-by-estoppel doctrine from challenging Selwin Ortega’s title to the property?

III. Did the district court correctly conclude that Selwin Ortega is not a good-faith purchaser for value under Minn.Stat. § 507.34 (2006)?

IV. Is Stone’s challenge to Ortega’s title to the property an impermissible collateral attack on a valid judgment?

ANALYSIS

I

Selwin Ortega argues that the district court erred by concluding that Dale Stone’s quitclaim deed to Jetmar Properties, LLC, was void. Ortega claims that Jetmar was a de facto corporation when the deed was delivered, and, alternatively, that Jetmar was not per se barred from accepting delivery of the deed despite its nonexistence at the time of transfer. Because Ortega’s de facto-corporation claim raises an issue of statutory construction, it is subject to de novo review. Weston v. McWilliams & Assocs., Inc., 716 N.W.2d 634, 638 (Minn.2006). Ortega’s claim that a deed can be delivered to an entity that did not exist at the time of transfer is also subject to de novo review. See Nelson v. Productive Alternatives, Inc., 715 N.W.2d 452, 454 (Minn.2006) (interpreting question of common law under de novo standard).

Ortega first argues that, although Jetmar had not filed its articles of organization when Stone delivered the quitclaim deed, Jetmar could accept the deed under the de facto-corporation doctrine. Ortega claims that any suggestion that the de facto-corporation doctrine has been abolished in Minnesota is unfounded because it appeared only in the Reporter’s Notes to Chapter 302A of the Minnesota Statutes, Minnesota cases continue to refer to the doctrine even after the enactment of chapter 302A, and it is unclear whether any prohibition against de facto corporations found in chapter 302A necessarily extends to limited-liability companies (LLC), which are governed by chapter 322B. The law and the facts do not support these arguments.

Historically, a de facto corporation could exist in Minnesota when there was “(1) some law under which a corporation with powers assumed might lawfully have been created; (2) a colorable and bona fide attempt to perfect an organization under such a law; and (3) user of the rights claimed to have been conferred by the law.” Evens v. Anderson, 132 Minn. 59, 61, 155 N.W. 1040, 1041 (1916). Ortega’s claim that the de facto-corporation doctrine applies in this case fails as a matter of fact because, as he acknowledges, there had been no colorable attempt to organize Jetmar under the LLC statute when Stone signed the deed. Mabel First Lutheran Church v. Cadwallader, 172 Minn. 471, 476, 215 N.W. 845, 847 (1927) (stating that if there has been no attempt to create corporation de jure there can be no corporation de facto). The LLC statute provides that an LLC is organized by filing articles of organization with the secretary of state. Minn.Stat. § 322B.105 (2006). Hammond made no attempt to file Jet-mar’s articles of organization with the secretary of state. As a result, even if the de facto-corporation doctrine had not been abolished, it would not apply. We conclude, however, that the doctrine has been abolished in the context of business-corporation law and, by extension, in the context of LLC law.

The 1981 notes accompanying the business-corporations statute that sets the effective date of a corporation’s articles of incorporation specifically provide that “the doctrine of de facto corporations is inapplicable in this state after the enactment of this act.” Minn.Stat. Ann. § 302A.153, reporter’s notes (West 2006). The rationale for the abolition of de facto corporations is that the process for incorporating is so simple that no one could ever make a “colorable attempt” to incorporate and fail. Id. This court recognized the abolition of de facto corporations in Warthan v. Midwest Consol. Ins. Agencies, Inc., 450 N.W.2d 145, 147-48 (Minn.App.1990), when, after quoting the reporter’s notes, we observed that the “use of advisory committee reports is recognized in this state as a tool for ascertaining legislative intent.” Id. at 148 n. 2.

Minnesota cases that continue to refer to the availability of the de facto-corporation doctrine after the enactment of the business-corporation statute are distinguishable. In Almac, Inc. v. JRH Dev., Inc., for example, we acknowledged that the “law gives equal recognition to de facto corporations.” 391 N.W.2d 919, 924 (Minn.App.1986), review denied (Minn. Oct. 17, 1986). But Almac involved events that occurred in November 1980, before the new business-corporations statute went into effect. Id.; see 1981 Minn. Laws ch. 270, § 144, at 1232 (setting effective date of statute as July 1, 1981). Similarly, in Ross v. Briggs & Morgan, we stated that a “de facto corporation may have existed.” 520 N.W.2d 432, 436 (Minn.App.1994), rev’d, 540 N.W.2d 843 (Minn.1995). But the statement was peripheral to the central holding and did not derive from an interpretation of section 302A.153. Id. at 436-37. Thus these cases do not support Ortega’s claim that the de facto-corporation doctrine remains viable in the context of business corporations.

We also reject Ortega’s claim that even if the de facto-corporation doctrine was abolished for purposes of business corporations it has not been abolished for LLC purposes. The 1992 notes to the LLC statute explain that “[t]o the extent a chapter 322B provision resembles a chapter 302A provision in substance, the case law and Reporter’s Notes of chapter 302A should be used to interpret and apply the chapter 322B provision.” Minn.Stat. Ann. § 322B.01, reporter’s notes (West 2006). The LLC statute setting the effective date of articles of organization lists section 302A.153 as its source. Minn.Stat. Ann. § 322B.175, reporter’s notes (West 2006). Because section 302A.153 serves as the basis for section 322B.175, and the law relevant to corporations guides our interpretation and application of the law relevant to LLCs, the prohibition against de facto corporations must extend to LLCs.

Like the business-corporations statute, the LLC statute provides organizers with an indisputably simple route to formal organization. Thus it is doubtful that one could actually make an unsuccessful “colorable attempt” to organize a de jure LLC. See Minn.Stat. § 322B.175 (making organization of LLC effective upon filing articles of organization with secretary of state and payment of fee). Accordingly, the district court did not err by concluding that Jetmar was not a de facto corporation when Stone executed the deed.

Ortega next argues that Jetmar’s nonexistence at the time Stone executed the deed is not determinative of whether Jetmar could take title to the property. To transfer title, a deed must be delivered. Slawik v. Loseth, 207 Minn. 137, 139, 290 N.W. 228, 229 (1940). Ortega argues that when a deed is delivered to an “incipient” LLC, the transfer of title may take effect upon the LLC’s formal organization. We disagree.

Under Minnesota law deeds cannot be delivered to nonexistent entities, whether the entities are natural or legal. A deed cannot be delivered to a deceased grantee, for example. In re Estate of Savich, 671 N.W.2d 746, 750 (Minn.App.2003). Similarly, the supreme court has held that because an organization was not a corporation de jure or de facto, it could not take title to real estate. Cadwallader, 172 Minn. at 476, 215 N.W. at 847. We can find no basis in Minnesota law for delaying transfer of title to some indeterminate future date when the grantee might come into existence. In fact, “many, but not all, courts have denied validity to deeds conveying property to corporations which are not incorporated at the time of conveyance.” 14 Richard R. Powell, Powell on Real Property § 81A.04[l][a][iii] (Michael Allan Wolf ed., 2006); see also Savich, 671 N.W.2d at 750 (citing § 81A.04[l][a][iii] of Powell on Real Property). According to these courts, “[t]he effective date of a deed is usually stated to be the date of delivery, and if at that date the corporation is ‘non-existent,’ the ordinary rule governs and the deed is treated as a nullity.” 9 Thompson on Real Property § 82.08(a)(2) (David A. Thomas ed., 1994) (footnote omitted).

Ortega relies primarily on Cmty. Credit Union Servs., Inc. v. Fed. Express Servs. Corp., 534 A.2d 331 (D.C.1987), for his claim that delivery of a deed to an incipient LLC may take effect upon the LLC’s formal organization. In Cmty. Credit Union, the District of Columbia Court of Appeals observed that “a deed conveying property to an incipient ‘corporation’ that has not yet been incorporated passes title to the corporation as of the time of incorporation.” 534 A.2d at 334. The decision on which Cmty. Credit Union relies for support, Zulver Realty Co. v. Snyder, 191 Md. 374, 62 A.2d 276 (1948), holds that a deed to a grantee that is nonexistent when the deed is created can still pass if the grantee has come into existence at the time of delivery. 62 A.2d at 280. Neither case supports Ortega’s theory.

The date of delivery is ordinarily presumed to be the date on the deed. Because Jetmar did not come into existence until almost a year after Stone delivered the deed to Hammond, Zulver does not apply. Cmty. Credit Union extends Zulver by delaying the question of delivery to the time of incorporation, but is also inapplicable because Stone did not have the requisite intent to convey the property when Jetmar was organized after the foreclosure sale.

We see no reason to deviate from the “ordinary rule” that a deed to an entity nonexistent at the time of conveyance is void. Limiting the question of delivery to the time of conveyance is not only consistent with Minnesota law, it is also a logical result given the ease of formal incorporation and organization. Allowing a form of future interest to vest in unorganized entities would be inconsistent with our public policy of encouraging legal organization.

II

Ortega next argues that the doctrine of corporation-by-estoppel prevents Stone from taking title to the property. The district court did not expressly address Ortega’s equitable claims, but it implicitly denied them by granting Stone’s request for a declaratory judgment establishing title in him. See Fraser v. Fraser, 702 N.W.2d 283, 292 (Minn.App.2005) (finding implicit rejection of equitable claim in other judicial action), review denied (Minn. Oct. 18, 2005). The issue of estoppel is generally a question of fact. N. Petrochemical Co. v. U.S. Fire Ins. Co., 277 N.W.2d 408, 410 (Minn.1979). We review fact questions for clear error. Minn. R. Civ. P. 52.01.

Ortega argues that under the corporation-by-estoppel doctrine Stone cannot take title to the property because Stone obtained an advantage by entering into a contract with Jetmar acting as an LLC, and Stone cannot now question the organization of the LLC. See State v. Rivers, 206 Minn. 85, 95, 287 N.W. 790, 794-95 (1939) (finding that mortgagor is estopped from denying validity of mortgagee’s incorporation after obtaining advantage by contracting with mortgagee acting as corporation); accord N. Bldg. & Loan Ass’n v. Witherow, 205 Minn. 413, 416-17, 286 N.W. 397, 398-99 (1939); 8 William Meade Fletcher et al., Fletcher’s Cyclopedia of the Law of Private Co'rporations § 3958 (pernxed., rev.vol.2001) (stating that person who conveys deed to entity as corporation cannot avoid conveyance by denying corporate existence of grantee). Although section 302A.153 abolished the de facto-corporation doctrine, the reporter’s notes to the same statute indicate that the corporation-by-estoppel doctrine “has nothing to do with the efficacy of an attempted incorporation, and may apply even where no documents have been filed with the secretary of state.” Minn.Stat. Ann. § 302A.153, reporter’s notes. Thus, the corporation-by-estoppel doctrine survives in Minnesota despite the inapplicability of the de facto-corporation doctrine. Arbo Corp. v. Aidan Mktg./Distrib., Inc., 639 F.Supp. 1512, 1514 (D.Minn.1986).

Even if we assume, without deciding, that the corporation-by-estoppel doctrine applies to LLCs, Ortega’s claim fails. Stone treated Jetmar as a “corporation” when he executed the deed. But the estoppel doctrine does not apply when the acts forming the basis for an estoppel claim are induced by fraud. Fletcher et al., supra, § 3909. When a corporation is used to accomplish fraud, courts may disregard the corporate entity and permit plaintiffs to “pierce the corporate veil.” Victoria Elevator Co. v. Meriden Grain Co., 283 N.W.2d 509, 512 (Minn.1979). Similarly, a court may refuse to apply the doctrine of corporation-by-estoppel when the corporation is used to accomplish fraud. The district court found that Stone executed the quitclaim deed while “relying on the false representations, promises, and assurances of Hammond.” Because Stone was fraudulently induced to sign the deed and treat Jetmar as a “corporation,” the district court could reject Ortega’s corporation-by-estoppel argument.

Ill

Ortega also disputes the district court’s determination that he was not a good-faith purchaser for value under Minn.Stat. § 507.34 (2006). Whether one is a good-faith purchaser is a factual determination that will be sustained unless the reviewing court has a firm and definite impression that a mistake has been made. Miller v. Hennen, 438 N.W.2d 366, 369 (Minn.1989).

In a parallel argument, Ortega contends that equitable estoppel prevents Stone from taking title. A party is equitably estopped “from taking unconscionable advantage of his own wrong by asserting his strict legal rights.” N. Petrochemical, 277 N.W.2d at 410. To prevail on his equitable-estoppel claim, Ortega “must prove that [Stone] made representations or inducements, upon which [Ortega] reasonably relied, and that [Ortega] will be harmed if the claim of estoppel is not allowed.” Id. Silence can serve as a representation or inducement. Macomber v. Kinney, 114 Minn. 146, 156-57, 128 N.W. 1001, 1004 (1910).

The good-faith-purchaser statute operates to establish priority over earlier unrecorded conveyances. Minn.Stat. § 507.34. In this case, however, there is no earlier unrecorded conveyance to which the statute could apply to establish priority. Instead, Stone retained title to the property because his quitclaim deed to Jet-mar was void. Consequently, Ortega has not established that the good-faith-purchaser statute applies. Powell, supra, § 81A.04[2][a][ii]. In addition, even if the good-faith purchaser statute applies, the record weighs against Ortega’s claim in light of his failure to make even minimal reasonable inquiries into the transaction with Jetmar.

Public policy generally favors allowing a degree of reliance on the title shown in public records. See Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn.App.1996), review denied (Minn. Feb. 26, 1997) (stating policy of allowing judgment creditors to rely on record). But the reliance allowed is not absolute. A “party attempting to invoke the doctrine [of equitable estoppel] cannot be negligent and cannot have knowledge of the defect in the title.” W. Concord Conservation Club, Inc. v. Chilson, 306 N.W.2d 893, 896 (Minn.1981). A prospective purchaser is obligated to discover anyone in possession of the land at issue and to “inquire into the nature and extent of the occupant’s interest.” Id. As a result of this obligation, the purchaser is held to have knowledge of all the “rights of the [possessor] and also of all facts connected therewith which reasonable inquiry would have developed.” Claflin v. Commercial State Bank, 487 N.W.2d 242, 248 (Minn.App.1992), review denied (Minn. Aug. 4, 1992). “In order to have status as a bona fide purchaser the mortgagee’s inquiry must be directed to the person in possession; inquiry of the mortgagor, who may have reason to conceal the truth, is not sufficient.” Id.

Under the unusual circumstances of this transaction, Ortega failed to make adequate inquiries about the property. Previously, Ortega had given Hammond an unsecured loan that Hammond failed to repay. In addition, Hammond had been unable to complete the purchase of Ortega’s property due to lack of funds. This course of dealing should have alerted Ortega to the possibility of suspicious transactions like the one Hammond proposed. Jetmar had obtained the property through a quitclaim deed from Stone the day before Hammond offered the property as collateral.

Despite these “red flags,” the record contains no evidence that Ortega ever made the minimal inquiries that would have informed him about the fraudulent nature of the transaction. Ortega never contacted Stone’s renters to inquire about the nature of their rights, which would have inevitably led him to Stone and to the discovery of Stone’s claimed rights. More significantly, Ortega never ascertained whether Hammond had the authority to act on Jetmar’s behalf. When dealing with an agent, the purchaser “is put on inquiry and must discover whether the agent has the authority to complete the proposed act.” Chilson, 306 N.W.2d at 896. Implicit in that obligation is the duty to establish whether the principal has the capacity to place authority in an agent. If Ortega had made these inquiries, he would have learned that Jetmar had never been formed and could not have had an interest in the property. Given his conduct, Ortega’s claim of being a good-faith purchaser is tenuous at best, and the district court did not clearly err by finding that Ortega was not a good-faith purchaser for value.

Similarly, Stone is not equitably es-topped from claiming title to the property. Ortega argues that Stone induced him to act to his detriment in two ways. First, Ortega argues that Stone’s purported conveyance to Jetmar, which was recorded, was a representation on which he detrimentally relied. Second, Ortega contends that Stone’s silence when Ortega foreclosed and surrendered his claim against Hammond in exchange for title to the property was a representation on which he detrimentally relied. But because Ortega failed to make even minimal inquiries about the transaction, Ortega’s reliance was itself not reasonable. Therefore, for the same reasons that Ortega is not a good-faith purchaser for value, Stone is not equitably estopped from claiming title.

IV

Ortega’s final argument is that Stone’s challenge to the title he gained through the foreclosure sale is an impermissible collateral attack on a valid judgment. Ortega did not sufficiently raise this argument below, however, and he cannot raise it for the first time on appeal. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). Furthermore, in their briefs, the parties agree that the foreclosure was conducted through foreclosure-by-advertisement procedures. Thus, there is apparently no judgment to attack. See Guidarelli v. Lazaretti, 305 Minn. 551, 554, 233 N.W.2d 890, 892 (1975) (noting that no hearing is held before foreclosure by advertisement). In any case, Ortega failed to produce any judgment or similar documentation to support his claim of collateral estoppel. Therefore, the argument is waived.

DECISION

The district court did not err by concluding that the quitclaim deed was void and that neither law nor equity prevented Stone from asserting his interest in the property.

Affirmed.


author:
CRIPPEN, Judge.
     RANDALL, Judge

text:
    Buddie GREENE, petitioner, Appellant, v. COMMISSIONER OF the MINNESOTA DEPARTMENT OF HUMAN SERVICES, Respondent, Aitkin County Health and Human Services, Respondent.
    No. A06-804.
    Court of Appeals of Minnesota.
    June 19, 2007.

      Frank W. Bibeau, Anishinabe Legal Services, Cass Lake, MN, for appellant.
    Lori Swanson, Attorney General, Margaret H. Chutich, Assistant Attorney General, St. Paul, MN, for respondent Commissioner of Department of Human Services.
    James P. Ratz, Aitkin County Attorney, Aitkin, MN, for respondent Aitkin County Health and Human Services.
    Considered and decided by RANDALL, Presiding Judge, WILLIS, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant Buddie Green is a member of the Minnesota Chippewa Tribe (MCT), which provides employment service to its members pursuant to an agreement, permitted by statute, in which MCT and the State of Minnesota arrange for services to recipients under The Minnesota Family Investment Program (MFIP), a public assistance plan for low-income families with children. Appellant contends that without her freedom for access to an Aitkin County employment service, serving non-members of MCT, she is denied equal protection of the laws. Because the channeling of appellant’s right of access to her tribal service occurs as part of her tribe’s contractual arrangement for the benefit of its members, it is political rather than racial in nature, and appellant fails to show a loss of her constitutional rights. We affirm, as did the district court, the commissioner’s decision upholding a county-imposed, partial suspension of appellant’s MFIP benefits based on her failure to participate in employment services.

FACTS

This appeal stems from an amended order of the Commissioner of Human Services upholding a sanction imposed by Aitkin County that partially suspended the Minnesota Family Investment Program (MFIP) benefits received by appellant Buddie Greene. The MFIP, codified in chapter 256J of the Minnesota statutes, is a state welfare reform program for low-income families with children. The program helps families by providing cash and food assistance. Pursuant to Minn.Stat. § 256J.09, subd. 1 (2006), an individual may seek assistance from the MFIP by applying for benefits through the county social service agency in the county where the person lives. After eligibility is established, Minn.Stat. § 256J.46, subd. 1 (2006), mandates that MFIP program participants comply with ongoing program requirements, one of them calling for participation in employment and training services. Program participants who fail to comply with employment services may be sanctioned and lose MFIP benefits under Minn.Stat. § 256J.46, subd. 1, absent a showing of good cause under section 256J.57.

Minn.Stat. § 256J.645 (2006), provides the commissioner with the authority to enter into agreements with federally recognized Indian tribes whereby the tribe provides MFIP employment services to members of the tribe. Subdivision 3 of this statute dictates that Indian tribes opting to enter into such an agreement with the State of Minnesota directly receive state funding at the same levels and under the same conditions as counties that provide those services. Subdivision 4 provides that Indian tribe members “receiving MFIP benefits and residing in the service areas of an Indian tribe operating employment services under an agreement with the commissioner must be referred by county agencies in the service area to the Indian tribe for employment services.”

The Minnesota Chippewa Tribe (MCT) and the commissioner entered into an agreement for fiscal year 2004/2005, wherein the MCT agreed to provide MFIP employment services for specific public assistance recipients who are of Indian descent. The language of the agreement is consistent with the statutory language set forth in chapter 256J; it provides in relevant part that the tribe “shall provide” MFIP employment services to those who are eligible for such services, receive MFIP benefits, reside within the “Tribal program area,” and

[t]he person is enrolled or eligible for enrollment in the [MCT]. The [MCT] consists of six reservations: Bois Forte, Fond du Lac, Grand Portage, White Earth, Leech Lake, and Mille Lacs Reservations. ...

No provision in the agreement allows the MCT to refer eligible members to the county social service agency for the MFIP employment services.

The service delivery area for the MCT includes Aitkin County, and the service provider locations are Cass Lake, Duluth, Virginia, Cloquet, and Bemidji. Aitkin County residents are located from 70 to 100 miles from the nearest service center operated by the tribe, which appears to be the Cloquet office. Appellant alludes to this distance information, but she rests her claim solely on her freedom of choice, not an assertion of any disadvantage in dealing with the tribal service. Notably, the tribal office offers services to members located in Aitkin County, or any place distant from its primary office, by designating agents in those places to meet with members to deliver agency services.

At the time this dispute arose, appellant received MFIP benefits for herself and a minor child. On July 20, 2004, Aitkin County referred appellant to the MCT for employment services because appellant is an enrolled member of the MCT, was eligible to participate in the MFIP, and resided within the tribal MFIP service delivery area of Aitkin County. Appellant subsequently asked the MCT for a referral to a county employment service provider. The MCT declined the request, stating that it “is mandated to provide you service and cannot refer you elsewhere.”

In December 2004, the MCT learned that appellant was non-compliant with employment requirements and, therefore, requested that Aitkin County impose a sanction under which appellant’s MFIP benefits would be partially suspended. Appellant challenged the sanction and a hearing was held on the matter. At the hearing, appellant admitted that she did not attend the required employment service overview and that she did not develop an employment plan with the MCT. Appellant also failed to articulate any explanation that might qualify for good cause to be excused from the requirements of Minnesota Statutes chapter 256J.

On March 31, 2005, the appeals referee recommended that appellant be allowed to access county employment services, but the commissioner’s delegee notified the parties that the commissioner intended to adopt an order differing from the referee’s recommendation. After soliciting and receiving comments from appellant and Ait-kin County on a proposed amended order, the commissioner upheld the sanction, finding that “[a] person in appellant’s circumstances must get employment services through the [MCT] even though Aitkin County pays her cash benefits under the [MFIP], Appellant refused without good cause to do so, and the county agency imposed a reduction in cash payments as a sanction.”

Appellant sought relief in the district court, arguing inter alia, that Minn.Stat. § 256J.645 violated her right to equal protection. The district court subsequently affirmed the sanctioning of appellant’s MFIP benefits, concluding that the statute met the equal protection requirements under the state and federal constitutions.

ISSUE

Is a public law for the benefit of a tribe unconstitutional because its members are not given the freedom to refuse an included tribal service and participate instead in a non-tribal service?

ANALYSIS

The constitutionality of a statute is a question of law, which is reviewed de novo. Granville v. Minneapolis Sch. Dist., Special Sch. Dist. No. 1, 716 N.W.2d 387, 391 (Minn.App.2006), review granted (Minn. Sept. 19, 2006). Minnesota statutes are presumed to be constitutional, and the power to declare a statute unconstitutional is “exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). The party challenging the constitutionality of a Minnesota statute bears the burden of establishing beyond a reasonable doubt that the statute violates a constitutional provision. Id.

The Equal Protection Clause of the Fourteenth Amendment provides, in relevant part, “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “The guarantee of equal protection of the laws requires that the state treat all similarly situated persons alike.” State v. Behl, 564 N.W.2d 560, 568 (Minn.1997). “An essential element of an equal protection claim is that the persons claiming disparate treatment must be similarly situated to those to whom they compare themselves.” St. Cloud Police Relief Ass’n v. City of St. Cloud, 555 N.W.2d 318, 320 (Minn.App.1996), review denied (Minn. Jan. 7, 1997).

Minn.Stat. § 256J.645, subd. 4, provides that “Indian tribal members receiving MFIP benefits and residing in the service area of an Indian tribe operating employment services under an agreement with the commissioner must be referred by county agencies in the service area to the Indian tribe for employment services.” As appellant asserts, even if section 256J.645, standing alone, survives an equal protection claim, the statute must be read together with the state’s contract with the MCT. To support her claim, appellant points to the statutory language mandating that tribal members receiving MFIP benefits must be “referred” to the Indian tribe for employment services. See Minn. Stat. § 256J.645, subd. 4. The contract with the MCT provides that once individuals are referred to the tribe, the individual must use employment services provided by the tribe. Appellant asserts that non-Indians and members of other tribes are able to receive employment services through a county agency, while she is ineligible to receive these services. Thus, appellant argues that Minn.Stat. § 256J.645, violates the Equal Protection Clause of the United States Constitution.

There is no dispute that identified members of the MCT are treated differently under the statute; the dispute concerns the level of scrutiny to be applied. See Erlandson v. Kiffmeyer, 659 N.W.2d 724, 738 (Minn.2003) (stating that to determine whether a statute violates equal protection, this court first examines “whether the challenged classification must satisfy strict scrutiny or merely the rational basis standard.”). This court applies strict scrutiny to legislatively created classifications in two situations: (1) when they impermissibly limit a fundamental right; or (2) when they involve a suspect classification. Krueth v. Indep. Sch. Dist. No. 38, 496 N.W.2d 829, 835 (Minn.App.1993) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)), review denied (Minn. Apr. 20, 1993). “Strict scrutiny requires the classifications to be necessary or narrowly tailored to a compelling governmental purpose.” Id. When the classifications do not involve a suspect class or infringe upon a fundamental right, the legislation is subject to review under the rational basis standard. See id. Under this standard, if the classification is rationally related to a legitimate governmental purpose, it does not violate the equal protection clause. In re Estate of Turner, 391 N.W.2d 767, 769 (Minn.1986).

We agree with respondent that the issue is controlled by Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). In Mancari, non-Indian employees of the Bureau of Indian Affairs (BIA) brought a class action challenging employment preference for qualified Indians in the BIA provided by the Indian Reorganization Act. 417 U.S. at 538-39, 94 S.Ct. at 2477. The Supreme Court articulated that preferences for American Indians are not racial but political when the preferences apply to members of federally recognized tribes. Id. at 553 n. 24, 94 S.Ct. at 2484 n. 24. Thus, the Court held that “as long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” Id. at 555, 94 S.Ct. at 2485.

This court in Krueth followed the reasoning set forth in Mancari. In Krueth, non-Indian tenured teachers appealed from a decision of the school district placing them on unrequested leave of absence while less senior American Indian teachers were retained pursuant to Minn.Stat. § 126.501 (1990) (the American Indian Education Act). 496 N.W.2d at 831-32. In addressing the non-Indian tenured teachers’ equal protection claim, this court noted that Mancari found the American Indian classifications were not racial but political since they were limited to members of federally recognized tribes. Id. at 837. This court further noted that the “classification must be limited to members of federally recognized tribes, not just people of some American Indian ancestry, otherwise strict scrutiny would apply to limit state racial affirmative action preference.” Id. But because the classification of federally recognized tribes is political rather than racial, the court determined that a rational basis test should be applied. Id.

Here, appellant’s position is narrowly stated; that Mancan and Krueth are controlling law on the question of separate tribal-member benefits, but that it is quite different to limit the service agency choices of the members. This distinction is supported neither by any cited authority nor by any reason. The public has determined a benefit for the MCT, a tribal entity, in every respect in accord with its wishes, and this classification of administrative service programs does not become racial rather than political when member access is channeled to the tribal service program rather than the program provided for non-members. Although appellant’s argument that the arrangement here does more harm than good is significant, we note that appellant asserts no special harm and no lack of tribal benefit. Thus, in accordance with Mancan and Krueth, we conclude that strict scrutiny is not required.

Under a rational basis standard of review, the statute passes constitutional muster. The statutory scheme was enacted to provide the MCT with a greater responsibility for self-government. This legislation enables federally recognized Indian tribes that so choose to contract with the commissioner, to develop and to provide employment services programs that fulfill the MFIP requirements for their tribal members who receive MFIP benefits. Thus, the statute allows tribes that seek such tribal responsibility to assume ongoing interactions with their own members to ensure that tribal members receive employment services in the best and most effective way possible. This supports the legitimate state interest of protecting and promoting tribal sovereignty. Minn.Stat. § 256J.645 does not violate the equal protection clause of the federal constitution.

Appellant also contends that Minn.Stat. § 256J.645, violates the equal protection clause of the Minnesota Constitution. This provision provides in relevant part that “[n]o member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const, art. I, § 2. Like the equal protection clause of the federal constitution, Article I, section 2 of the Minnesota Constitution begins with the mandate that all similarly situated individuals shall be treated alike, but only “invidious discrimination” is deemed constitutionally offensive. Turner, 391 N.W.2d at 769 (Minn.1986) (quoting Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963)). But the Minnesota Constitution can be interpreted “to afford greater protections of individual civil and political rights than does the federal constitution.” Kahn v. Griffin, 701 N.W.2d 815, 828 (Minn.2005).

Appellant argues that because Minnesota does not have the federal government’s unique obligation toward federally recognized Indian tribes, Minn.Stat. § 256J.645 violates the State of Minnesota’s equal protection clause by disparately treating members of the MCT. To support her claim, appellant relies on Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003). In that case, the Alaska Supreme Court held that a borough’s Native American hiring preference violated the Alaska Constitution’s guarantee of equal protection because the borough lacked a legitimate governmental interests to enact a hiring preference favoring one class of citizens at the expense of others. Malabed, 70 P.3d at 427-28. But Malabed concerned a borough’s ordinance. In contrast, the challenged law here concerns state law. In declaring the borough’s ordinance unconstitutional, the Alaska Supreme Court stated that “we [do not] suggest that all state or local legislation pertaining to Alaska Natives or tribal governments should be assumed to establish suspect classifications presumptively barred by equal protection.” Id. at 426. The court noted that “[t]o the contrary, we think that the state has considerable latitude in dealing with recognized tribes as to matters of intersecting governmental concern when the state’s actions rationally promote legitimate mutual governmental or proprietary interest.” Id. at 427 n. 51.

Here, the purpose of Minn. Stat. § 256J.645 is to further the MCT’s ability to govern its members and provide tribal members with appropriate services. Although it is the federal government that has a “unique” obligation to American Indians, this “unique obligation,” characterized as the “trust doctrine,” also applies to state action. See Krueth, 496 N.W.2d at 836. This court stated that “[s]tate action for the benefit of Indians can also fall under the trust doctrine and therefore be protected from challenge under the equal protection clause or civil rights statutes.” Id. (quoting St. Paul Intertribal Housing Bd. v. Reynolds, 564 F.Supp. 1408, 1412 (D.Minn.1983)). Because the statutory purpose of Minn.Stat. § 256J.645 is to further the MCT’s self-governance of tribal members for the benefit of its members, the classifications are political rather than race based, a rational basis standard is applicable, and no different result from the federal constitution is mandated by our state constitution.

DECISION

Because the classifications under Minn. Stat. § 256J.645, subd. 4, are political rather than racial, a rational basis standard of review is applicable. The statute passes constitutional muster by supporting the legitimate state interest of protecting and promoting tribal sovereignty. Minn.Stat. § 256J.645, subd. 4, does not violate the equal protection clause of the federal or state constitutions.

Affirmed.

RANDALL, Judge

(dissenting).

I respectfully dissent. Appellant Buddie Greene is in all respects an American citizen, a resident of Aitkin County, Minnesota and a citizen of the State of Minnesota. She is part Native American and has enough blood quantum to be enrolled in the Minnesota Chippewa Tribe. Her home reservation is Leech Lake. She does not live on the reservation but rather lives in Aitkin. As the majority sets out, there is a voluntary agreement between the Minnesota Department of Human Services and the Minnesota Chippewa Tribe (MCT) whereby the Minnesota Department of Human Services agrees to provide the Minnesota Family Investment Program (MFIP) to enrolled members of six northern Minnesota Ojibwe reservations (there are seven Ojibwe reservations in northern Minnesota; Red Lake is not a member if the MCT and is not a signatory to this agreement).

MFIP is a public assistance plan for low income families with children and is not restricted to Minnesota Native Americans nor does it discriminate against Minnesota Native Americans. It is simply open to Minnesota families qualified by residence and low income levels.

There is nothing in the MFIP regarding being race-based. If there were, I suspect the politically correct among us, lay people and politicians, would elbow each other off the pulpit and decry such a shameful thing. Nor do you have to belong to the MCT, even if you are a Native American, to receive services that you otherwise qualify for. For instance, you might be an Ojibwe but not enrolled in any of the signatory tribes. You might be a Native American member of any of the other numerous tribes not enrolled in the MCT. Your right to receive MFIP services from Aitkin County would simply turn on your county residence and the income level of you and your children.

The agreement is an idea of the Minnesota Department of Human Services and the MCT. That agreement is not mandated by the Bureau of Indian Affairs or the federal government or any Minnesota state statute that I know of.

Appellant simply wants to qualify for the MFIP services as a bona fide member of Aitkin County, Minnesota and to avail herself of the same rights that any resident of Aitkin County has. She does not wish to go through the MCT. For refusing to go through the MCT, she was denied benefits she was otherwise entitled to receive, to help to raise her child. The first hearing was before an administrative referee who found in appellant’s favor, and held that while she could apply through the MCT, she did not have to as she was otherwise eligible. Specifically, Referee Moore stated:

While the statute imposes a duty upon the country to make referrals to tribal employment services when a participant is deemed eligible, there is no requirement that an eligible participant utilize that service simply because they are eligible. Likewise, the fact that the tribal employment services programs cannot refuse to provide eligible participants services, does not in turn create a requirement that an eligible participant utilize those services. The appellant, like any other citizen of Aitkin County, should be able to access county employment services.

Referee Moore was correct. I agree with Referee Moore and appellant’s attorney who argues that the law requires a referral but does not strip applicants like appellant of their rights as a county resident if they wish to forgo their tribal preferences and deal directly with the county.

As appellant argues, Minn.Stat. § 256J.645, subd. 4 (2006), states that “Indian tribal members receiving MFIP benefits and residing in the Service area of an Indian tribe operating employment services under an agreement with the commissioner must be referred by county agencies in the service area to the Indian tribe for employment services.” There is a mandatory “referral” but there is no statement that ineligible enrollees become ineligible if they participate directly with the county of their residence.

The goal of allowing Indian tribes to help their enrolled members is accomplished by this mandatory referral. The majority of eligible Native Americans make use of that preference. The goal of helping tribes help their members cannot subvert the right of a Minnesota citizen to pass up a race-based preference and simply deal with their county and their state on the basis of “I’m an independent human being and a resident and this service is open to me.” For instance, there are affirmative type scholarships and grants available to those who are in need and belong to a particular racial/ethnic background. But they are not excluded, from applying for, and competing for “colorblind” scholarships and grants based exclusively on need and their academic or athletic prowess. National Merit Scholarships are open to all, while at the same time there may be scholarships available for black, Hispanic, and Native American children that are not open to Caucasians. You can have dual applications if you want. What we do not have is a law that says minority students cannot apply for the same state access and benefits that Caucasian students can apply for, but rather are restricted to racial/ethnic avenues. Yet respondents argue that is so for appellant. Respondents’ briefs argue the proposition that appellant is restricted to her “tribal track” and is barred from applying directly to the county of her residence.

Respondents in this case, never mention and never come near Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). You see, what we have here are respondents pushing for “separate but equal” treatment for enrolled members of MCT, and the majority reiterating “separate but equal” under the guise of “helping” tribes help their members. Appellant Buddie Greene wishes to be treated as a citizen of Minnesota and the United States. She wishes to forgo any preference she might have as a member of a Native American tribe. I suggest that neither Aitkin County nor the State of Minnesota can forbid her to do that.

In Morton v. Mancan, the Supreme Court conveniently sidestepped its reasoning in Brown. 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). In upholding a federal law that provided a preference for qualified Indians, the Court held that favoring American Indians is not race-based, but “political.” Id. at 553 n. 24, 94 S.Ct. at 2484 n. 24. The illogic is inescapable.

As I have previously noted:

If that were the case, those in Congress who were bitterly opposed to Brown v. Board of Education would have thought of the simple expedient of calling black Americans a political class, rather than a race-based class, and merrily continued on their way with de facto segregation. If this country is to meaningfully deal with the consuming problem of race and race bias, we have to be smarter than that; we have to be more honest than that.

Cohen v. Little Six, Inc., 543 N.W.2d 376, 402 (Minn.App.1996) (Randall, J., dissenting), affirmed 561 N.W.2d 889 (Minn.1997).

Since 1924, the Indians of our state have been, and continue to be, Minnesotans and U.S. citizens under the laws of this country. Yet, even with the Supreme Court’s strong denunciation of government action that places distinctions on disparate classes of citizens, we carry on with the notion of separate but equal for MCT Indians under the guise of preference.

As U.S. citizens, Indians enjoy the same guarantees of citizenship as their fellow Americans. In recognizing appellant Bud-die Greene as a tribal member, instead of an American citizen and a county resident, we ignore her ability and right to make choices available to all citizens.

A tribe is not a living, breathing person endowed with the protection of the United States Constitution, its Bill of Rights, and the Minnesota Constitution. The tribe is a governmental entity like Hennepin or Ramsey County, or Aitkin County, or the City of Aitkin. Municipalities are not the individuals protected by the constitution. The residents of those municipalities are.

Minnesota’s eleven Indian tribes, seven Ojibwe and four Dakota Sioux, are municipal governments. Many tend to be incorporated, including some in Delaware. If you want to call “the tribe” a political class, that would be in keeping with calling Hennepin County or Ramsey County a political entity/political class. No harm is done to the language by so doing. But, the residents of Hennepin and Ramsey County are not a political entity or a political class. They are human beings divided by long recognized divisions of race and ethnic origin. The same is true for enrolled Indian people. You can say they are members of a municipal-like government and that that government is a political entity; but the individual members are, like residents of Hennepin and Ramsey County, human being with racial/ethnic origins and they have the rights, as all citizens, not to be boxed into a separate but equal track.

In an oral argument, the attorney for the State of Minnesota Department of Human Services, with candor (but probably not intentional) exactly stated respondents’ reliance on “separate but equal.” The precise argument was that the MCT and the Leech Lake Band had an infrastructure in place, and government jobs and people working in place, whose jobs consisted of handling the referrals from Aitkin County for MFIP services. If people like appellant were given the option of dealing directly with her county of residence and if enough people chose to do so, “there would not be enough economic activity to justify the tribe’s infrastructure and some people might have to be laid off’! This argument was advanced by respondents with a certain amount of indignation. That happens to be what happened after the Brown decision. Many segregated, all black schools closed in time, and when the students were assimilated in one school or the other, not all the previously paid teachers, vice-principals, principals, and superintendents automatically got new jobs in the new integrated system. Right today, in towns in Minnesota with declining enrollment, people moving out of town are exercising Minnesota’s long standing principle of school choice and, therefore, cutting a certain amount of teaching jobs.

If respondents are honest, and not hypocritical, they would have to make this argument if enough Indian children exercised their right to go to local public grade schools and high schools. Many Indian parents take advantage of this option. It is common on the reservations when the reservation grade or high schools are not comparable to the quality of local public schools. Respondents always have the option of using their own tribal schools if they have them, or using their local school district’s public grade schools and high schools. On those reservations where the quality of the public school is thought by parents to be comparable to the local public school district, many parents keep their children in the reservation school. Even then, some parents exercise their right to use the local school district. Minnesota has certified grade schools and high schools (even some Head Start and kindergartens) for reservation members. But it is always an option and a free choice. If too many Indian parents chose local public schools for their children, then the local reservation schools would have to lay off teachers, administrators, janitors and superintendents. That will happen. Respondents will be there in the other corner trying to make an arrangement to force (as here) residents of tribes to go to reservation schools. That is, if they are honest, and not hypocritical. I suspect they would lose that case as they should lose this one.

Brown v. Bd. of Educ. centered on an all black school. There was not an accompanying hue and cry about all Hispanic schools, all Asian schools, or all Native American schools. But no one has seriously challenged assimilation with the narrow argument that Brown forbids de facto segregation against blacks, and since it did not specifically mention Hispanics, Asians, and Native Americans, that must have been an intentional oversight, and, therefore, those racial/ethnic groups can continue to be forced into separate public schools and public welfare as long as schools and welfare are “bless my soul!” — equal.

Identified members of MCT are treated differently under the statute. The majority ducks strict scrutiny and goes along with the shibboleth that “Indian” is a political classification, not racial. Democrat and Republican are political classes! Caucasian, Black, Asian, Native American and Hispanic are racial/ethnic. As Casey Stengel said, “You can look it up!” Take a look at the next census from the United States of America and the racial/ethnic boxes of which you are asked to check. Caucasian, Black, Asian, Pacific Rim, American Indian, Alaskan Indian, Hispanic, etc. will all have boxes. “Democrat” and “Republican” will not have little boxes to check. They are political classifications, not racial or ethnic.

All 652 federally recognized tribes work off of blood quantum. Blood quantum is not “political.” Blood quantum is racial. The most commonly used benchmark for enrollment is 25%. Tribes are free to increase or decrease that percentage for their own standards of enrollment. Because of marriage outside the tribe, many tribes today, in danger of declining enrollment, utilize “NBQ.” That means, “no blood quantum.” It really does not mean “no blood quantum”; it is simply shorthand for eliminating the need for a specific percentage of blood quantum. The tribes, utilizing “no blood quantum”, pick a time period back in history, and if you are a lineal descendant of any enrolled member at that time, you may be eligible to enroll. That means 1/8, 1/16, 1/32, or 1/64 could count. That bears an eerie resemblance to an old Louisiana statute that one could be classified “Negro” and subjected that race to the Jim Crow laws of that day. See La.Rev.Stat. Ann. § 42:267 (1982) (repealed 1983). Until 1970, a Louisiana statute had embraced the one drop rule, defining a Negro as anyone with a “trace of black ancestry.” See Sunseri v. Cassagne, 195 La. 19, 196 So. 7, 7 (1940). This law was challenged in court a number of times from the 1920s on, including an unsuccessful attempt in 1957 by boxer Ralph Dupas, who asked to be declared white so that a law banning “interracial sports” (since repealed) would not prevent him from boxing in the state. State ex rel. Dupas v. City of New Orleans, 240 La. 820, 125 So.2d 375, 376 (1960). In 1970 a lawsuit was brought on behalf of a child whose ancestry was allegedly only one two-hundred-fifty-sixth black, and the legislature revised its law. See La.Rev.Stat. Ann. § 42:267. The 1970 Louisiana statute defined a black as someone whose ancestry is more than one thirty-second black. Id. Adverse publicity about this law was widely disseminated during the Phipps trial in 1983, filed as Jane Doe v. State of Louisiana. See 479 So.2d 369 (La.App. 4 Cir.1985). However, the new statute in 1983 did not retroactively abolish the “traceable amount rule” (the one drop rule), as demonstrated by the outcomes when the Phipps decision was appealed to higher courts in 1985 and 1985.

Blood quantum as a race-based idea, an ethnic-based idea, and the fight against it, as a justification to treat citizens differently, was the heart of Brown v. Bd. of Edue. and all the battles before Brown and all the fights for decades after Brown.

Put another way, we can recognize “preferences.” Certain affirmative actions have passed all constitutional tests at the state and federal levels. Public policy states those with bona fide needs can be a foundation for preferences. Just being poor can become a valuable preference when competing for grants and scholarships with someone with similar grades but “no need.” But the reverse of legitimate preferences for racial/ethnic groups is discrimination if they want to voluntarily forgo a preference and simply apply on the basis of need (as appellant here in Aitkin County), and are prevented from doing so, because of race, as respondents argue should be the case.

Appellant can say, “I know I could be an Indian and track down some preferential treatment, but I’m tired. I don’t want to deal with tribal government for today. I just want to be a resident of Aitkin County and a citizen of the state of Minnesota and the United States of America.”

I would like to state that not only is that the case, but under the compelling, unalterable, and not unclear mandate of Brown v. Bd. ofEduc., respondents’ hydra-headed assault on the doctrine that separate but equal is inherently unconstitutional has to be recognized. Like Perseus and the Gorgon, if only through a mirror, it has to be slain. I dissent. I would have affirmed the administrative referee.

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

      . We note that appellant makes no assertion that her “freedom of choice” argument implicates a fundamental right. Rather, appellant focuses her argument on the statute's disparate treatment of members of the MCT.

      . As I have previously acknowledged, I cited Mancan in reaching the result in Kmeth. Although I still conclude that the result reached in Krueth was just and equitable, I no longer subscribe to the reasoning behind the decision.

      . James Gill, Lords of Misrvde: Mardi Gras and the Politics of Race in New Orleans, 217 (University Press of Mississippi 1997)


author: TOUSSAINT, Chief Judge.

text:
    Lisa PETERSON, Respondent, v. Philip JOHNSON, Appellant.
    No. A06-1830.
    Court of Appeals of Minnesota.
    June 26, 2007.

      J. Brian O’Leary, O’Leary & Moritz, Chartered, Springfield, MN, for respondent.
    Gregory R. Anderson, Anderson Larson Hanson & Saunders, P.L.L.P., Willmar, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; TOUSSAINT, Chief Judge; and COLLINS, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

Upon certification by the district court, appellant Philip Johnson challenges the district court’s denial of summary judgment in a home-warranty dispute, arguing that respondent Lisa Peterson failed to provide proper written notice under Minn. Stat. § 327A.03(a) (2006) and that respondent lacks standing to pursue the action because she no longer owns the home. Because respondent’s summons and complaint satisfy the statutory notice requirement and because respondent retained ownership in the home during the redemption period, we answer the certified questions in the affirmative.

FACTS

In the mid-1990s appellant built a home in Windom, Minnesota. The original owner sold the home to respondent in May 2000. Respondent attempted to sell the home in the fall of 2002, but a potential buyer refused after having the home inspected.

Respondent had the home inspected in the spring of 2003, and the inspection revealed numerous structural defects. Less than six months later, respondent served a summons and complaint on appellant, alleging breach of warranty, breach of contract, and negligence. Respondent attached to the complaint a 10-page inspection report that detailed the alleged construction defects. She did not provide any prior written notice to appellant.

After serving the summons and complaint, respondent defaulted on her mortgage, and the home was sold at foreclosure in June 2006. Respondent testified that she had no intent to redeem by the statutory redemption deadline, which was December 2, 2006.

Appellant moved for summary judgment on all of respondent’s claims. The district court granted appellant summary judgment on respondent’s breach of contract and negligence claims but denied the motion with respect to the home-warranty claim. The district court found that respondent has standing as a “vendee” under Minn.Stat. § 327A.01, subd. 6 (2006), because she retains ownership until the redemption period expires. The court also found that she gave proper written notice under section 327A.03(a) (2006) by serving the summons and complaint within six months of discovering the damage or loss.

The district court certified for appeal (1) whether respondent provided adequate written notice under section 327A.03(a) and (2) whether she is a vendee after the foreclosure but before the redemption deadline.

ISSUES

1. Does a summons and complaint, accompanied by a detailed inspection report regarding alleged construction defects, satisfy the written-notice requirement in Minn.Stat. § 327A.03(a) (2006)?

2. Does a homeowner, after a foreclosure sale but before the redemption period expires, have standing as a vendee to maintain a home-warranty claim against the homebuilder?

ANALYSIS

1. Notice

Appellant argues that the district court erred by finding that respondent gave adequate written notice of her home-warranty claim. He argues that a summons and complaint detailing the construction defects is inadequate notice under Minn.Stat. § 327A.03(a) (2006) because the notice requirement should be construed as a condition precedent to commencing a lawsuit.

Whether respondent’s summons and complaint satisfy the notice requirement in section 327A.03(a) involves a matter of statutory construction, which this court reviews de novo. Ryan Contracting, Inc. v. JAG Invs., Inc., 634 N.W.2d 176, 181 (Minn.2001). “If the statute is free from all ambiguity, we look only to its plain language.” Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.1997).

Section 327A.03(a) limits liability for vendors or contractors in home-warranty disputes if the loss or damage is not reported in writing to the vendor or home-builder within six months after the vendee or owner discovers, or should have discovered, the loss or damage. Minn.Stat. § 327A.03(a). Appellant contends that the statute’s plain meaning requires timely written notice as a condition precedent to commencing a lawsuit; otherwise, a vendor or contractor loses the opportunity to cure any loss or defect. He reasons that the statute contemplates giving a vendor or contractor an opportunity to investigate and possibly remedy a dispute before “marching off to court.” We disagree.

The plain language of section 327A.03(a) does not limit the form that the written notice must take or provide that written notice must be given before commencing suit. Appellant is unable to point to any authority indicating that section 327A.03(a)’s notice requirement creates a condition precedent. Unlike section 327A.03(a), the various other notice provisions appellant cites explicitly require written notice before bringing suit. See Minn. Stat. §§ 219.761, subd. 1 (2006) (stating that local government or non-profit firefighting corporation may sue railroad if railroad does not reimburse for fire-related damages after receiving timely notice of fire), 340A.802, subd. 2 (2006) (stating that “no action for damages or for contribution or indemnity may be maintained unless the [written] notice has been given”), 604.15, subd. 2(b) (2006) (requiring 30 days’ written notice to owner of vehicle that receives motor fuel without payment before retailer can seek civil penalty).

The purpose of section 327A.03(a) is clear on its face — to limit the time in which an owner or vendee can assert a home-warranty claim against a vendor or contractor. Appellant does not challenge the timeliness of the notice in this case, and the summons and complaint provided a detailed description of the loss or damage appellant allegedly caused. Contrary to appellant’s assertion, being served with a sufficiently detailed summons and complaint does not prohibit a vendor or contractor from investigating or remedying any loss or damage before becoming irretrievably entrenched in litigation. Therefore, we reject appellant’s argument that section 327A.03(a)’s notice requirement creates a condition precedent to commencing suit. The district court properly held that the summons and complaint in this case complied with the statute’s notice requirements.

2. Standing

Appellant also argues that respondent lacks standing because the home was sold at foreclosure and respondent no longer owned the home at that time. We review the legal issue of standing de novo. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

Minnesota’s home-warranty statute protects vendees during a ten-year period after the initial vendee’s first occupancy from “major construction defects due to noncompliance with building standards.” Minn.Stat. §§ 327A.01, subd. 8; 327A.02, subd. 1(c) (2006). A vendor is defined as “any person, firm or corporation which constructs dwellings for the purpose of sale, including the construction of dwellings on land owned by vendees.” Id. at 327A.01, subd. 7 (2006). A vendee “means any purchaser of a dwelling and includes the initial vendee and any subsequent purchasers.” The warranties “shall survive the passing of legal or equitable title in the dwelling to the vendee.” Id. at 327A.02, subd. 2 (2006).

It is undisputed that respondent was a vendee entitled to home-warranty protection before the foreclosure sale. Respondent retained ownership and possession of the home during the redemption period. Woodmen of World Life Ins. Soc. v. Sears, Roebuck & Co., 294 Minn. 126, 131, 200 N.W.2d 181, 184 (1972). Because respondent continued to own the home during the redemption period, she also maintained her vendee status. Therefore, respondent retained standing to pursue her home-warranty claim during the redemption period, regardless of the foreclosure sale.

Appellant also urges us to consider the rights of the foreclosure purchaser during the redemption period, and the hypothetical consequences if the purchaser also asserted a home-warranty claim. We decline to reach this issue because the foreclosure purchaser is not a party to this action, and there is no evidence suggesting that the foreclosure purchaser asserted a home-warranty claim against appellant. See In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989) (explaining that appellate court will only decide actual controversies and will not issue advisory opinions); In re Ferlitto, 565 N.W.2d 35, 37 (Minn.App.1997) (stating that court may not exercise authority over nonparty).

DECISION

The district court properly held that a sufficiently detailed summons and complaint complied with the written-notice requirement in Minn.Stat. § 327A.03(a) (2006) and that a homeowner retaining ownership rights during the foreclosure-redemption period has standing as a vend-ee to maintain a home-warranty claim.

Certified questions answered in the affirmative.

      . Despite respondent’s apparent intent not to redeem, the record does not show whether she redeemed. The district court limited its holding to the narrow issue of whether respondent was a vendee entitled to pursue her home-warranty claim during the redemption period, and our review is similarly limited.