Polzin Inc. v. Aust
| Decision Date | 09 July 2012 |
| Docket Number | A11-1944 |
| Parties | In re the Matter of: Polzin Incorporated, Respondent, v. James W. Aust, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed
Isanti County District Court
Grant Courtland Borle, Tennis and Collins, P.A., Forest Lake, Minnesota (for respondent)
Ronald B. Sieloff, Sieloff and Associates, P.A., Eagan, Minnesota (for appellant)
Considered and decided by Johnson, Chief Judge; Rodenberg, Judge; and Huspeni, Judge.
UNPUBLISHED OPINION
Polzin, Inc. (Polzin), as holder of the remainder interest in certain land, obtained from the district court a summary judgment pursuant to Minnesota Statutes section 561.17 (2010) against James Aust, the holder of an estate for years in that land. The judgment forfeited Aust's estate in, and evicted him from, the land. Aust later moved, under Minnesota Rule of Civil Procedure 60.02(a), (f), to vacate the summary judgment, and for other relief. The district court denied Aust's motion. Aust appeals. Because this record supports the summary judgment, and does not show that the district court abused its discretion by denying Aust relief under rule 60.02, we affirm.
Prior litigation between these parties ended in March 2009 with a settlement agreement that contained two alternatives for resolving that suit, depending on whether James Aust tendered funds to reacquire certain real property from Polzin, Inc. (Polzin). Aust admits that "[t]he repurchase did not occur," and that "Alternative No. 2" of the settlement agreement applies here. Alternative No. 2 states that if Aust did not reacquire the property, he "shall" deed the property to Polzin but "will retain an Estate for Years." Alternative No. 2 also recites rights the parties have regarding the property.
In November 2010, Polzin served Aust, at the property, with a summons and complaint for the current action. In relevant part, the complaint sought to remove Aust from the property because Aust was "[a]llowing trash and garbage, including vehicles and tires, to accumulate; [f]ailing to repair the home's roof thereby allowing the elementsinto the home; [f]ailing to have the septic and well systems inspected and maintained; and failing to control noxious weeds from growing on the property surrounding the home." The complaint asserted that this conduct by Aust constituted waste injuring Polzin's interest in the property. Polzin filed its complaint with the district court on February 28, 2011. Discovery disputes followed, and Aust, acting pro se, served Polzin with an answer, but did not file that answer with the district court.
On March 21, 2011, Polzin served Aust, by mail, with a motion seeking a summary judgment under Minnesota Statutes section 561.17. Under that statute, if a tenant for years commits waste on property in which the plaintiff has a remainder interest, and does so with malice, the holder of the remainder interest can obtain a judgment which forfeits the defendant's tenancy for years and evicts the tenant for years from the property. At the April 19, 2011, hearing on Polzin's motion, the district court noted procedural defects in the service and filing of the motion, and struck the motion.
Later that day, Polzin re-filed and re-served the motion. This second motion noted a hearing date of May 24, 2011, and the papers were served on Aust, by mail, at the address of the property. Aust did not appear at the May 24, 2011 hearing. At that hearing, Polzin's attorney stated that Aust had not responded to discovery. Polzin's attorney also informed the court that, while Aust had served Polzin with an answer, Aust had not filed the answer with the court. The district court, from the bench, granted Polzin summary judgment, and later issued an order dated June 6, 2011, to that effect. On June 6, 2011, the only document in the record from Aust that had been generated for this casewas his answer to the complaint, which was before the district court solely because Polzin had included it with its papers seeking summary judgment.
On June 7, 2011, the district court entered judgment on its June 6, 2011 order. The district court, on June 21, 2011, amended its judgment in a manner not relevant here. A writ of recovery of the premises issued, and was posted on the premises, on June 22 and 23, 2011, respectively.
On June 27, 2011, Aust, represented by counsel, filed multiple documents, including an amended answer to the complaint and a motion seeking to vacate, under Minnesota Rule of Civil Procedure 60.02, the judgment, the amended judgment, and the writ. Aust's affidavit states that at the April 19, 2011 hearing, the district court indicated that the rescheduled hearing would occur two months from April 19, 2011;1 that, because he thought he had two months before the next hearing, he went to a different residence that he owned 150 miles away; and that he did not return to the premises at issue until June 1, 2011. He further alleged, among other things, that the premises at issue was his homestead, that it was exempt from creditors, and that his conduct on the property was consistent with his rights under the settlement agreement. Aust challenged factual determinations on which the summary judgment was based, asserting that he made timely responses to Polzin's requests for admissions, that his estate in the property is not an estate for years, and that Polzin failed to allege that any waste involved malice by Aust, as required by section 561.17. None of Aust's papers assert that Polzin does not own the property or otherwise put at issue the ownership of the property.
Also on June 27, 2011, the writ of recovery of the premises was executed and the property was restored to Polzin. Later, officials of the county and other organizations inspected the property. The results of those inspections included:
Counsel for Polzin mailed these documents to the district court administrator, asking that they be placed in the file, and sent copies of the letter to Aust's attorney and the district court judge.
At a July 19, 2011 hearing on Aust's motion for relief under rule 60.02, Aust objected when Polzin's attorney mentioned the reports submitted by letter. The district court noted that Polzin's attorney had not objected when Aust's attorney had referred to matters not in the record, and stated: "I understand your objection but I'm going to allow [Polzin's attorney] to speak his piece." The district court did not otherwise specifically address the objection, but its order, filed August 23, 2011, denied Aust's motion for relief under rule 60.02, stating, among other things, that "given the condition of the premises and the need for immediate action to take care of the problems that are present[,] [Aust's] explanations and reasoning for vacating the previous orders are prejudicial to [Polzin.]"
Aust appeals.
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