This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-99-696

Donald S. Trent,
Appellant,

vs.

Sgt. Jerry Amrhein, et al.,
Respondents.

Filed January 18, 2000
Affirmed
Randall, Judge

Carver County District Court
File No. C5-98-606

Tracy R. Eichhorn-Hicks, 7600 France Avenue South, Suite 555, Edina, MN 55435 (for appellant)

Stephen G. Andersen, Ratwick, Roszak, & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents Jerry Amrhein and Carver County); and

Daniel P. Taber, Suite 965, Riverview Office Tower, 8009 34th Avenue, Minneapolis, MN 55425 (for respondent Richard D. Niemi)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant argues the district court erred in dismissing his claim, claiming he was denied his due process right to respond to the issue of subject-matter jurisdiction. Appellant also insists the district court erred when it granted a protective order under Minn. R. Civ. P. 26.03, arguing that it is unsupported by the evidence. We affirm.

FACTS

The facts underlying this matter are undisputed. In August 1993, appellant Donald Trent signed a purchase agreement to buy a $450,000 home from Richard D. Niemi. The closing was set for November 24, 1993. In the interim, Trent was allowed to pay rent and move into the home. Trent was unable to come up with the purchase price despite repeated extensions of the closing date and refused to move out of the home after the last extension expired in July 1994. In February 1995, Niemi successfully brought an action to cancel the purchase agreement. He then commenced an unlawful detainer action in Carver County District Court after Trent continued to refuse to vacate the premises. On April 1, 1996, respondent Carver County Sheriff's Deputy Jerry Amrhein evicted Trent pursuant to a writ of restitution.

At the time of the eviction, Niemi was placed in possession of the property left on the premises. He conducted an inventory of the property and then allowed Trent to bring a moving van to the house and remove a number of items of personal property. Niemi, however, refused to allow Trent to remove the remaining property based on a forfeiture agreement executed between the parties. The agreement provided that Trent would forfeit all personal and business property if he did not vacate the premises by November 30, 1995.

In June 1996, Trent brought an action against Niemi in Hennepin County District Court for replevin and conversion of the remaining property. On Niemi's motion, the matter was venued in Carver County District Court. Trent did not appear at trial, and in April 1998, the district court dismissed Trent's action for failure to prosecute because Trent did not file his summons and complaint with the district court. The court also ruled that Trent was in default by failing to respond to Niemi's counterclaim.

In September 1997, Trent, acting pro se, commenced a second suit in Hennepin County District Court against Niemi, Niemi's attorney Daniel Taber, Carver County Deputy Sheriff Jerry Amrhein, and Carver County (the county). This case was also later venued in Carver County District Court. Niemi and Taber moved for summary judgment, arguing that Trent's claim against Niemi was barred by res judicata because the judgment in the first action was an adjudication on the merits and Taber's only involvement had been to defend Niemi. The district court agreed and dismissed Niemi and Taber from the action. Because he was dismissed from the action, Niemi refused to respond to further discovery requests by Trent, including refusing to appear at several depositions noticed by Trent's counsel.

Later, Amrhein and Carver County moved for summary judgment, arguing they were immune from Trent's claims. At the summary judgment hearing, Trent raised for the first time the claim that Niemi should be held in contempt for failing to appear at the previously noticed depositions. Niemi's counsel objected to the motion as untimely given that it was served by fax at 4:50 p.m. the previous day and had not been filed with the court. The district court denied Amrhein's and the county's motion, ruling that there were genuine issues of material fact regarding whether the county was entitled to statutory immunity. The court did not rule on Trent's contempt motion.

In December 1998, Trent served notice to depose Niemi on January 5, 1999. Niemi's attorney objected to the notice of deposition claiming that it violated Minn. R. Civ. P. 11, Trent had no claim on which relief could be granted, Niemi had not been subpoenaed for the deposition, and the discovery deadline had expired. In January 1999, Niemi moved for a protective order and dismissal pursuant to Minn. R. Civ. P. 11 and Minn. R. Civ. P. 26.03. Amrhein and Carver County joined Niemi's motion, simply adopting the arguments presented in Niemi's motion papers.

The district court granted Niemi's motion for a protective order and barred the taking of his deposition. The court adopted the arguments presented in Amrhein's and the county's memorandum and dismissed Trent's action for failure to state a claim on which relief can be granted. The court concluded that Minn. Stat. 566.17, subd. 2(b) (1998), does not require a peace officer to make an inventory of property left on the premises following an eviction under the unlawful detainer laws, but that it is the plaintiff property owner's responsibility. The court concluded it was without subject-matter jurisdiction because Trent had no claim against Amrhein or the county. The court ruled that Niemi did not have standing to move for dismissal of Trent's action and that, while Amrhein and the county had standing, their motion was untimely. However, the court dismissed the matter "as if on its own motion," noting that it has the power to dismiss an action at any time, with or without notice, if it lacks jurisdiction. This appeal follows.

D E C I S I O N

On appeal from summary judgment, the reviewing court is to determine whether any genuine issues of material fact exist and the district court correctly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). "[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). All inferences must be resolved in favor of the nonmoving party. O'Malley v. Ulland Bros., 549 N.W.2d 889, 897 (Minn. 1996). This court need not defer to the district court's decisions on purely legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The district court may grant summary judgment sua sponte if, under the same circumstances, it would grant summary judgment on a party's motion. Septran, Inc. v. Independent Sch. Dist. No. 271, 555 N.W.2d 915, 920 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). Unless the objecting party can demonstrate "prejudice from lack of notice, procedural irregularities, or from the lack of a meaningful opportunity to oppose summary judgment," this court will not reverse the district court's grant of summary judgment. Id. (citation omitted).

Here, the district court dismissed the matter on its own motion after ruling that Niemi failed to state a claim on which relief can be granted. Trent does not allege (1) any procedural irregularities, (2) lack of notice regarding the claims asserted by respondents, or (3) that, under the same circumstances, the district court would have denied respondents' motion if respondents had moved for summary judgment. We conclude that the district court did not abuse its discretion when it sua sponte considered the matter on its own motion for summary judgment.[1]

Trent's claim is based on the language of Minn. Stat. 566.17, subd. 2(b) (1998). This section provides, in part:

In cases where the defendant's property is to be stored on the premises, the officer shall enter the premises * * * and the plaintiff may remove the defendant's personal property. * * * The plaintiff must prepare an inventory * * * . The inventory must be prepared, signed, and dated in the presence of the peace officer. The inventory must include the following:
(1) a listing of the items of personal property and a description of the condition of the property;
(2) the date, the signature of the plaintiff * * * ; and
(3) the name and badge number of the policy officer.

The peace officer shall retain a copy of the inventory. The plaintiff is responsible for the proper removal, storage, and care of the defendant's personal property and is liable for damages for loss of or injury to the defendant's personal property caused by the plaintiff's failure to exercise care in regard to it as a reasonably careful person would exercise under like circumstances.

Trent contends that while the primary responsibility for property loss rests with the plaintiff property owner, nothing in the statute precludes a peace officer or his employer from being held liable if the inventory is not prepared properly. Trent contends the purpose of requiring the presence of a peace officer during the inventory process is to insure that a defendant's property is inventoried properly and to eliminate the chance a false inventory will be prepared. In this case, Trent "is claiming that there was a fraudulent inventory which was not overseen or even provided to the officer."

It is undisputed that on November 14, 1995, Trent executed a forfeiture agreement with the Niemis that provided:

I agree to vacate the property owned by Jane and Richard Niemi, located at 10321 Heidi Lane, Chaska, Minnesota, on or before November 30, 1995. In the event that I do not honor this agreement, I agree to forfeit all personal and business property located at 10321 Heidi Lane in consideration of debts owed to Jane and Richard Niemi.

/s/

Donald Trent 11-14-95

(Emphasis added.).

Trent has never challenged the validity of this agreement. The record shows that Trent did not vacate the property until he was forcibly evicted on April 1, 1996. By failing to vacate the premises by November 30, 1995, Trent forfeited his right to the personal and business property left on the premises. Because Trent has no claim of right to any of the property that he alleges was taken, lost, damaged, or destroyed following his eviction, he has no damages. It is immaterial whether the inventory was fraudulently prepared or that the inventory was prepared in violation of Minn. Stat.  566.17, subd. 2(b), because Trent is not entitled to the property.

In addition, the language of the statute makes clear that it is the duty of the plaintiff property owner to prepare the inventory in the manner prescribed and not the peace officer. See Minn. Stat. 566.17, subd. 2(b) (stating "plaintiff must prepare an inventory"). A peace officer has no affirmative duty under the statute to prepare an inventory. The peace officer is required only to "retain a copy of the inventory." Id. Even viewing the facts in the light most favorable to Trent, and assuming he has a viable claim for damages, Trent cannot show Amrhein or the county breached any legal duty owed him under Minn. Stat. 566.17, subd. 2(b).

There is nothing in the statute that provides a peace officer may be held liable if the inventory list is not prepared in accordance with Minn. Stat. 566.17, subd. 2(b). To the contrary, the statute places the burden of loss or destruction of defendant's personal property on plaintiff property owner. Under the statute,

[t]he plaintiff is responsible for the proper removal, storage, and care of the defendant's personal property and is liable for damages for loss of or injury to the defendant's personal property caused by the plaintiff's failure to exercise care in regard to it as a reasonably careful person would exercise under like circumstances.

Id. "[P]roper removal" under the statute includes preparing the inventory list in the manner prescribed by the statute, including in the presence of a peace officer. Any liability arising from the failure to prepare the inventory list in compliance with the requirements of Minn. Stat. 566.17, subd. 2(b), falls on the plaintiff property owner, not the peace officer. We conclude that a peace officer or his employer may not be held liable for a breach of a plaintiff property owner's duty to prepare an inventory of personal property in compliance with Minn. Stat. 566.17, subd. 2(b).

Next, Trent contends that the district court abused its discretion in dismissing his action as a sanction for violating rule 11. A sanction imposed under rule 11 is reviewed under an abuse of discretion standard. Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990).

Here, Trent has no viable claim against Amrhein and the county. By virtue of the forfeiture agreement he executed, Trent has forfeited his right to the personal and business property he left on the premises. Trent failed to demonstrate that Amrhein and the county owed him a legal duty under Minn. Stat. 566.17, subd. 2(b). Having failed to establish a legal duty owed him, Trent cannot establish a breach of that duty. Aside from a short argument in his reply brief, Trent has never squarely addressed the issue of whether his claim states a claim on which relief can be granted. Because Trent has no viable or good-faith claim against Amrhein and the county, the district court did not abuse its discretion when it dismissed Trent's action as a sanction for violating rule 11.

Finally, Trent argues the district court abused its discretion when it granted Niemi a protective order pursuant to Minn. R. Civ. P. 26.03, prohibiting the taking of Niemi's deposition in the present case. This rule provides:

Upon motion by * * * the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternately, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense * * * .

Minn. R. Civ. P. 26.03.

Because Trent has no claim against Amrhein or the county, we conclude the district court did not abuse its discretion when it issued a protective order barring Trent from taking the deposition of Niemi in this case.

Affirmed.

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

[1] We reject Trent's claim that we must assume the district court dismissed his action solely as a sanction for violating Minn. R. Civ. P. 11. In dismissing the case, the court specifically adopted the arguments set forth in Niemi's motion papers, which argued that the matter should be dismissed not only pursuant to Minn. R. Civ. P. 11 and 26.03, but also because Trent's action fails to state a claim on which relief can be granted.