Menard, Inc. (Store #3047) v. County of Dakota, 19HA-CV-19-1966
| Decision Date | 25 May 2021 |
| Docket Number | 19HA-CV-19-1966,19HA-CV-20-2197 |
| Parties | Menard, Inc. (Store #3047), Petitioner, v. County of Dakota, Respondent. |
| Court | Tax Court of Minnesota |
ORDER ON RESPONDENT'S MOTION TO COMPEL
This matter came before the Honorable Wendy S. Tien, Chief Judge of the Minnesota Tax Court, on respondent Dakota County's motion to compel.
Jeffery J. McNaught, Attorney at Law, represents petitioner Menard Inc. (Store #3047).
Suzanne W. Schrader, Assistant County Attorney, represents respondent Dakota County.
Dakota County moves this court to compel discovery. Petitioner opposes the motion. The court, upon all the files, records and proceedings herein, now makes the following:
1. Respondent's motion to compel answers to discovery is granted.[1]
2. On or before May 7, 2021, Petitioner must fully respond to Respondent's written discovery requests, dated March 5 2021. Responses must comply with Minnesota Rules of Civil Procedure 26.07 and 33.01(d).
3. Respondent may file and serve within 30 days of the date of this order an affidavit setting forth its expenses, including attorney fees, incurred in connection with its motion to compel. Minn. R. Civ. P. 37.01(d)(1). Petitioner may file an opposition to Respondent's affidavit, which may challenge both the award of expenses and the amount of expenses, within 10 days of service of Respondent's affidavit.
IT IS SO ORDERED.
On April 28, 2019, and May 31, 2020, Menard, Inc. (Store #3047) ("Menard") filed two property tax petitions in this court as to property taxes payable in 2019 and 2020 for the subject property (PID #01-26900-03-010) located in Apple Valley.[2] The court subsequently filed a Scheduling Order governing deadlines in this matter, including an April 26, 2021 discovery cutoff.[3]
On March 5, 2021, Dakota County served interrogatories and requests for production of documents (the "discovery requests") on Menard, [4] with responses due on or before April 5, 2021.[5]On April 2, 2021, Menard's counsel requested an extension of the response deadline to allow settlement discussions to take place.[6] Although the County's counsel agreed to extend the deadline to April 13, 2021, she also stated settlement discussions would not take place until their Assessor's Office had the opportunity to review Menard's responses to the discovery requests.[7]
On April 14, 2021, the County filed and served on Menard motions to compel discovery responses both in the above-captioned cases and the West St. Paul cases.[8] Menard opposed the County's motion.[9] A hearing on the County's motion took place on April 29, 2021.[10] As of the hearing date, Menard had not responded to the discovery requests.[11]
Minnesota Statutes section 271.06, subdivision 7 (2020), provides that, in general, the Minnesota Rules of Civil Procedure (the "Rules") govern the procedures in the tax court, where practicable. The Rules provide that parties may obtain discovery by methods including written interrogatories and requests for production of documents. Minn. R. Civ. P. 26.02(a); Minn. R. Civ. P. 33.0l(a); Minn. R. Civ. P. 34.01.
Trial courts "[have] considerable discretion in granting or denying discovery requests." Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987); see also Montgomery Ward & Co., Inc. v. Cnty. of Hennepin, 450 N.W.2d 299, 305-09 (Minn. 1990) (). Pursuant to Rules 33.01(b) and 34.02(c), a party is required to respond or object to discovery requests within 30 days. When a party fails to respond or object to a discovery request, the party seeking discovery may move for an order compelling an answer or production of documents. Minn. R. Civ. P. 37.0l(b)(2). Additionally, the party whose conduct necessitated the motion to compel may be required to pay the moving party the reasonable expenses incurred in making the motion, including attorney fees. Minn. R. Civ. P. 37.01(d)(1).
Menard objects to the County's motion to compel on the grounds it was not filed and served in accordance with this court's rules governing motion practice.[12] Specifically, Menard contends the notice of motion and motion in these cases included a proposed order and affidavit of service captioned for the West St. Paul cases.[13] Menard contends the attachment of the incorrect proposed order and affidavit of service in these cases was "confusing, "[14] and constituted a "failure of service."[15]
"It is the service of process and not the proof thereof that confers jurisdiction upon a court." Juhl v. Rose, 366 N.W.2d 706, 707 (Minn.App. 1985). Menard does not claim the attachment of an incorrectly captioned proposed order or the wrong affidavit of service deprives this court of jurisdiction, nor does Menard contend it did not actually receive service of the motion to compel and its accompanying memorandum. "It has often happened that proof of service may be defective or even lacking, but if the fact of service is established jurisdiction cannot be questioned." Goodman v. Ancient Order of United Workmen, 211 Minn. 181, 183-84, 300 N.W.2d 624, 625 (1941). In addition, Menard's counsel acknowledged he was not genuinely confused about the nature of the motion by the attachment of the wrong proposed orders and affidavits of service to the motion and its accompanying memorandum.[16] The County's error in attaching the wrong proof of service did not vitiate service of the motion to compel.
Menard concedes that, as of the hearing date, it had not served its responses to the discovery requests on the County, [17] although its responses were ready to serve.[18] Furthermore, Menard did not object on any grounds to the substance of any of the County's discovery requests, citing only an understanding the parties were attempting to confer on settlement before producing its responses.[19]
Accordingly, the County's motion to compel is granted.[20] Menard shall respond to the discovery requests not later than May 7, 2021. Responses shall comply with Rules 26.07 and 33.01(d).
With respect to the County's request for attorney fees and costs, Rule 37.0l(d)(1) provides:
If the motion is granted, or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party ... whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust.
If the County seeks an award of attorney fees and costs, it must file and serve its statement of expenses, properly supported, within 30 days of the date of this Order. Menard may file and serve any objections no later than ten days after service of the County's motion.
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Notes:
[1] Respondent's motion was granted on the record on April 29, 2021, as to the discovery requests. Tr. 30 (Apr. 29, 2021).
[2] Pay 2019 Pet. (filed Apr. 28, 2019); Pay 2020 Pet. (filed May 31, 2020). On the same two dates Menard also filed property tax petitions concerning nine properties (PID #42-48150-01-010, PID #42-48150-01-021, PID #42-48150-01-034, PID #42-48150-01-041, PID #42-48150-01-053, PID #42-14050-01-060, PID #42-14050-01-070, PID #42-02000-33-010, PID #42-83226-01-020) located in West St. Paul (file numbers 19HA-CV-19-1967 & 19HA-CV-20-2195; collectively, the "West St. Paul cases"). Those petitions were voluntarily dismissed. Voluntary Dismissal (filed Apr. 26, 2021).
[3] Sched. Ord. (June 1, 2020) ¶ 2.
[5] Schrader Aff. ¶ 3.
[6] Schrader Aff. ¶ 3.
[7] Schrader Aff., Attachment 2 (email from Suzanne W. Schrader to Jeffery McNaught dated Apr. 5, 2021).
[8] Not. Mot. & Mot. Compel (filed Apr. 14, 2021); Not. Mot. & Mot. Compel (filed in 19HA-CV-19-1967 & 19HA-CV-20-2195 Apr. 14, 2021).
[9] Pet'r's Mem. Resp. Mot. Compel (filed Apr. 22, 2021).
[10] Tr. 1.
[11] Tr. 4; see also Schrader Aff. ¶ 6.
[12] Pet'r's Mem. 4.
[13] Pet'r's Mem. 4-5; Aff. Jeffery J. McNaught (Apr. 22, 2021), Ex. C.
[14]Pet'r's Mem. 5; Tr. 20-22.
[15]Pet'r's Mem. 9. Menard cited no authority for this proposition.
[16] Tr. 21-22 (...
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