This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
2002 Chevrolet Avalanche,
Minnesota Lic. JRC 509,
Vin No. 36NEK13T62G345096,
Filed March 8, 2005
Hennepin County District Court
File No. FP 03-18580
Deborah K. Ellis, 700 Saint Paul Building, 6 West Fifth Street, St. Paul, MN 55102 (for appellant)
Peter A. MacMillan, Michele R. Wallace, MacMillan & Wallace, 9955-59th Avenue North, Suite 125, Minneapolis, MN 55442 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Dietzen, Judge, and Crippen, Judge.
Appellant, a truck owner, challenges a summary judgment in a judicial forfeiture proceeding on his truck. Because there is a genuine issue of material fact precluding summary judgment, we reverse and remand.
Appellant Thomas Hesse is the owner of respondent truck, a 2002 Chevrolet Avalanche, Minnesota Lic. JRC 509, VIN No. 36NEK13T62G345096. On October 3, 2003, appellant gave the truck keys to Daniel Betland, so he could drive appellant and a friend to another town.
After being alerted that Betland drove away from a filling station without paying for gas, a police officer followed and then stopped the truck. When the officer approached the truck to ask about the gas, she observed that Betland appeared intoxicated. Another police officer arrived, who also noticed indicia of intoxication. Betland was given an Intoxilyzer test; his alcohol concentration measured .11. Betland was arrested for driving while under the influence of alcohol and later pleaded guilty to second-degree DWI. Appellant was charged with aiding and abetting second-degree DWI and aiding and abetting theft.
The truck was seized and taken into the custody of the City of Crystal. Appellant was notified and brought a forfeiture action. The city moved for summary judgment. A week after the summary judgment hearing, and before the judgment appealed here had been entered, a different district court judge granted appellant’s motion to dismiss the aiding-and-abetting charges against him for lack of probable cause. This court affirmed the dismissal in State v. Hesse, No. A04-361 (Minn. App. Aug. 17, 2004), review denied (Minn. Oct. 19, 2004). Appellant now challenges the summary judgment in the forfeiture action.
D E C I S I O N
On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).
Appellant argues that the district court erred in applying the law by not finding that the dismissal of the aiding-and-abetting charges against him collaterally estopped summary judgment in the forfeiture action. But collateral estoppel requires first that “the issue [be] identical to one in a prior adjudication.” Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982) (quoting Victory Highway Vill., Inc. v. Weaver, 480 F. Supp. 71, 74 (D. Minn. 1979)). The issues were not identical. The issue in the criminal action was whether the state’s evidence made it reasonably probable that appellant acted affirmatively to aid Betland in his DWI offense. See Minn. Stat. § 609.05, subd. 1 (2002). The issue in the forfeiture action is whether appellant had actual or constructive knowledge that his truck would be used to commit DWI. See Minn. Stat. § 169A.63, subd. 7(d) (2002) (“A motor vehicle is subject to forfeiture under this section only if its owner knew or should have known of the unlawful use or intended use.”).
Summary judgment was not precluded by an erroneous application of the law. But we conclude that it is precluded by a genuine issue of material fact as to whether appellant knew or had reason to know, at the time he gave Betland the keys, either that Betland did not have a driver’s license or that his alcohol concentration was over the legal limit. The district court found that, according to the police officer at the scene, “[appellant] knew D. Betland was intoxicated,” but also that “[appellant] denies that he told the officer he knew D. Betland was intoxicated,” and that “[appellant] asserts that he was not aware that D. Betland was intoxicated or that he had a history involving DWI convictions.” Despite recitation of this conflicting evidence and the unresolved factual dispute of the parties as to what appellant should have known, the district court concluded that “[appellant’s] innocent owner claim is not a valid defense to the forfeiture action.”
“Once the government shows that probable cause exists, the burden shifts to the claimant to demonstrate by a preponderance of the evidence that the property is not subject to forfeiture, or that a defense to forfeiture applies.” One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759, 761 (8th Cir. 1986) (emphasis added). Appellant has not had an opportunity to demonstrate by a preponderance of the evidence that he did not have actual or constructive knowledge that his truck would be used for an offense. We reverse the summary judgment and remand.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant did not raise this issue in his brief. Generally, issues not briefed on appeal are waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). But the parties argued the issue at oral argument, and we review it under Minn. R. Civ. App. P. 103.04 (permitting our review of any matter as “the interest of justice may require”).