This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Ricky Joe Artz,





Metropolitan Property & Casualty

Insurance Co.,



Filed January 9, 2007

Klaphake, Judge


Hennepin County District Court

File No. CT 05-8250


Paul T. Eidsness, Charles A. Beckjord, Paul T. Eidsness & Associates, P.A., 7915 Stone Creek Drive, Suite 120, Chanhassen, MN  55317 (for appellant)


Paul S. Hopewell, Stacey A. Nilsen, Johnson & Condon, P.A., 7401 Metro Boulevard, Suite 600, Minneapolis, MN  55439-3034 (for respondent)


            Considered and decided by Ross, Presiding Judge, Klaphake, Judge, and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Ricky Joe Artz brought this declaratory judgment against respondent Metropolitan Property & Casualty Insurance Co., after respondent denied coverage for appellant’s claim that his ex-wife’s removal of marital and nonmarital property from the marital homestead constituted theft.  The district court granted respondent’s motion for summary judgment, concluding that it was against public policy to settle marital property disputes by resorting to filing an insurance claim.  Because appellant has failed to make a prima facie case of theft, we affirm. 


            The district court shall grant summary judgment when, based on the pleadings, discovery, and other matters in the record, there are no genuine issues of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  This court reviews the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  We will uphold an award of summary judgment if it can be sustained on any grounds.  St. Louis Park Post No. 5632 v. City of St. Louis Park, 687 N.W.2d 405, 409-10 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004). 

            The basis for appellant’s insurance claim is that marital and nonmarital property was stolen from the marital homestead during and after the dissolution proceedings by his ex-wife, Barbara Artz.  The parties’ dissolution commenced in May 2004.  Between May 4, 2004 and September 15, 2004, appellant had limited access to the marital homestead, which was occupied by his ex-wife, but on at least two occasions when appellant was permitted in the house, he noticed that some personal property to which he had a claim had disappeared.  In the dissolution decree, which was entered on August 18, 2004, the district court awarded appellant certain items of nonmarital property, but reserved jurisdiction over the division of marital property, which was to be divided in a fair and equitable manner.  According to the record, no division of marital property has yet occurred.

            After appellant made his claim, respondent examined appellant under oath, as permitted by the insurance policy.  Appellant was unable to identify when his nonmarital property, as well as the marital property, was removed from the premises and acknowledged that he could only state that it had been removed sometime between May 4, 2004, and September 15, 2004.  Respondent denied coverage because the theft was committed by Barbara Artz, who was a named insured covered under the policy.

            “Theft” occurs when a person “intentionally and without claim of right” takes another’s property without permission and with the intent to permanently deprive the owner of possession of the property.  See Minn. Stat. § 609.52, subd. 2(1) (2004).  Appellant has failed to make a prima facie case of theft:  he cannot state when his nonmarital property, to which he had a clear claim of right after entry of the dissolution judgment, was removed, and he cannot state that his ex-wife has no claim of right to marital property that has never been divided or distributed. 

            No genuine issue of fact remains for trial when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  Based on this record, appellant has failed to plead a prima facie case of theft.  Respondent is therefore entitled to summary judgment as a matter of law.