City of Faribault v. One 1976 Buick LeSabre, Serial No. 4P39J6X159337, C9-87-182

• Decision Date: 16 June 1987
• Docket Number: No. C9-87-182,C9-87-182
• Citation: 408 N.W.2d 584
• Parties: CITY OF FARIBAULT, Appellant, v. ONE 1976 BUICK LeSABRE, SERIAL NO. 4P39J6X159337, Respondent.
• Court: Minnesota Court of Appeals

Page 584

408 N.W.2d 584

CITY OF FARIBAULT, Appellant, v. ONE 1976 BUICK LeSABRE, SERIAL NO. 4P39J6X159337 Respondent.

No. C9-87-182.

Court of Appeals of Minnesota.

June 16, 1987.

Syllabus by the Court

1. The trial court did not err by denying appellant's summary judgment motion in this forfeiture action.

2. The trial court did not abuse its discretion by declining to order forfeiture of the 1976 Buick LeSabre.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Warren D. Chamberlain, Faribault City Atty., Faribault, for appellant.

Craig Ricke, pro se.

Considered and decided by RANDALL, P.J., and WOZNIAK and NIERENGARTEN, JJ., with oral argument waived.

OPINION

RANDALL, Judge.

Appellant City of Faribault brought a forfeiture action under Minn.Stat. Sec. 609.531 (Supp.1985) against Craig Ricke's 1976 Buick LeSabre. The city moved for summary judgment. The trial court denied the motion and dismissed the forfeiture action. On appeal, appellant claims it was entitled either to summary judgment or a trial on the merits. We affirm the trial court.

FACTS

In March 1986 Craig Ricke was charged with burglary in the second degree and two counts of felonious theft in violation of Minn.Stat. Secs. 609.582, subd. 2(a) (1984) and 609.52, subds. 2(1) and 3(2) (1984). On March 27, 1986 Ricke pleaded guilty to the felony theft of an 1851 Colt model navy revolver on February 19, 1986, from Janet Favro. Pursuant to a plea agreement, the other two charges were dismissed.

Under the agreement the State agreed to request a stay of imposition of sentence, recommend maximum jail time of 90 days, and request that Ricke make restitution for the stolen firearms and reimburse the county for the attorney fees expended for a public defender.

Ricke received the following sentence:

(a) stay of imposition of sentence for three years;

(b) supervised probation for three years with the following conditions of probation:

(1) 90 days in the county jail under the Huber law, with credit for 22 days already served;

(2) $50 assessment to be paid within two months; and

(3) $21,730 in restitution to Janet Favro for the stolen firearms and $822 for reimbursement of attorney fees, to be paid within 30 months.

To fulfill his restitution and attorney fees obligations, Ricke was to pay the Rice County Court Administrator $750 per month beginning September 1, 1986, continuing until all obligations are fulfilled. At the time of sentencing, appellant was employed by a construction company. The presumptive sentence for the felony theft conviction, a severity level 4 offense, with appellant's criminal history score of 0, was a stayed twelve month and one day sentence.

In March 1986, the city instituted a forfeiture action under Minn.Stat. Sec. 609.531 against Ricke's 1976 Buick LeSabre. The city claimed the car was a "conveyance device" subject to forfeiture under the statute. The city had previously seized the car at the time of Ricke's arrest. Ricke did not file an answer in response to the forfeiture complaint.

In December 1986, the city moved for summary judgment in the forfeiture action. The city submitted affidavits from Robert Jones and Thomas Ingram, of the Faribault Police Department, indicating the department was informed by a Nancy Reint that on February 19, 1986, she observed Ricke drive a 1976 yellow Buick LeSabre, bearing Minnesota license # ANS-826, to Janet Favro's residence. Reint was standing across the street and observed Ricke go up to Favro's door and knock. When there was no answer, Ricke manipulated the doorknob to gain admission into the house. Ricke left the house carrying a paper bag. He entered the 1976 LeSabre and drove away. The affidavits also indicate that Mike Dube informed the police that on February 19 he transported Ricke, who was carrying a paper bag, to a location near a firm named Muzzleloader's Etcetera. Dube left his vehicle and later returned to find Ricke gone. The bag was crumpled up with nothing in it. The 1851 Colt model navy revolver was sold to Muzzleloaders on February 19, 1986.

Ricke did not submit a written response to the summary judgment motion, but appeared pro se at the motion hearing to oppose the forfeiture. Ricke stated he did not take the pistol on February 19, but had taken some weapons earlier and used a different car to transport the property. While Ricke's statements were made in open court, it does not appear they were made while under oath. Ricke alleged the car he used to transport the weapons was now in the possession of his ex-wife.

By order dated December 16, 1986, the trial court denied the city's motion for summary judgment, and on its own motion granted summary judgment in favor of Ricke and dismissed the forfeiture action. The court indicated there remained a factual question of whether Ricke stole the pistol on February 19 and used the LeSabre to transport the firearm. However, the trial court held that even if Ricke had used the LeSabre to leave the scene and transport the firearm, as a matter of law the car was not "used in the commission" of the theft. The court reasoned Ricke merely used the vehicle for transportation and could just as easily have walked.

The trial court also indicated Minn.Stat. Sec. 609.531, subd. 6(c) provides that the court may order forfeiture, and that in this case the court declined to exercise its discretion to order forfeiture. The court explained that Ricke was being punished for the theft in the companion criminal matter and the forfeiture of his vehicle would result in an "excessive penalty."

On January 29, 1987, a judgment of dismissal was entered. The city filed this appeal seeking review of the January 29 judgment. Ricke has not filed a brief, and the matter is proceeding pursuant to Minn.R.Civ.App.P. 142.03.

ISSUE

1. Did the trial court err by denying appellant's summary judgment motion?

2. Did the trial court abuse its discretion by declining to order forfeiture of the 1976 Buick LeSabre?

ANALYSIS

I.

Summary judgment

Summary judgment is appropriate when there are no genuine issues as to any material fact, and either party is entitled to judgment as a matter of law. Minn.R.Civ.P. 56.03; Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn.1982). The trial court must review the evidence in the light most favorable to the nonmoving party, and on appeal this court must review the evidence most favorable to the one against whom the motion was granted. Id.

The trial court denied the city's summary judgment motion concluding there remained a factual issue of whether Ricke stole the pistol on February 19, 1986, and used the LeSabre to transport the pistol. To reach this conclusion, the court apparently relied on Ricke's unsworn statement at the motion hearing that he did not steal the firearms on February 19, but instead stole them earlier and used a different car. Ricke presented no affidavits on this issue. Since an adverse party may not rely on merit averments or denials, Minn.R.Civ.P. 56.05; see generally Eakman v. Brutger, 285 N.W.2d 95, 97 (Minn.1979), it is questionable whether the trial court should have relied upon Ricke's unsworn denial. Also, prior to the forfeiture motion hearing, Ricke pleaded guilty to the charge of felonious theft of the pistol from Favro's residence on February 19, 1986.

However, even taking these facts into account, the trial court acted properly by denying summary judgment to the city. The police officers' affidavits, submitted by the city, were defective because the officer's statements were not based on their personal knowledge, but instead contained hearsay information they received from Nancy Reint and Mike Dube. See Itasca County Social Services v. Milatovich, 381 N.W.2d 497, 498 (Minn.Ct.App.1986); Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn.Ct.App.1984). Rule 56.05 requires that affidavits be based on personal knowledge. Boulevard Del, Inc. v. Stillman, 343 N.W.2d 50, 52 (Minn.Ct.App.1984). Thus, the city's defective affidavits alone provided an insufficient basis to grant the city summary judgment. We affirm the trial court's conclusion that the city was not entitled to summary judgment because there was an unresolved factual issue of whether Ricke used the LeSabre in the theft.

II. Forfeiture

After deciding against the city's motion for summary judgment, the court went on to hold that, even if the Buick was used to transport Ricke to and from the scene of the theft and to transport the stolen pistol, it would not be subject to forfeiture under the statute, because, as a matter of law, the car was not "used in the commission" of the theft. The trial court further concluded that, even if the car had been used in the commission of the theft, forfeiture is discretionary under Minn.Stat. Sec. 609.531, subd. 6(c), which directs the court "may order" forfeiture. The court declined to exercise its discretion to order forfeiture because Ricke was being punished for the theft in the companion criminal matter, and a forfeiture in the vehicle would result in an "excessive penalty."

Minn.Stat. Sec. 609.531 in part provides:

Subdivision 1. Definitions. For the purpose of this section, the following terms have the meanings given them.

(a) "Conveyance device " means a device used for transportation in connection with a designated offense and includes, but is not limited to, motor vehicles, trailers, snowmobiles, airplanes, and vessels. The term "conveyance device" does not include property which is, in fact, itself stolen or taken in violation of the law.

* * *

Subd. 6. Forfeiture procedures. Any proceeds which are derived from or traced to the commission of a designated offense, conveyance device, communications device or component, primary container, weapon used, or contraband property shall be forfeited according to the following procedure:

(a) a separate complaint shall be filed against the proceeds which are derived from or traced to the commission of a designated offense, conveyance device,...