This opinion will be unpublished and
may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-2033

Carey Norman,

Appellant,

vs.

Georgina DeMars,

Respondent,

and

Washington County Sheriff's Department

Respondent.

Filed May 28, 1996

Affirmed in part, reversed in part, and remanded

Peterson, Judge

Washington County District Court

File No. C8953373

Thomas C. Ewald, Sieloff and Associates, P.A., 938 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Appellant)

John G. Berg, 102 Sentinel Building, 5151 Edina Industrial Building, Minneapolis, MN 55439, John A. Meiners, 10520 Grant Drive, Eden Prairie, MN 55437 (for Respondent DeMars)

Considered and decided by Peterson, Presiding Judge, Huspeni, Judge, and Mansur, Judge.*

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellant Carey Norman challenges the district court's (1) denial of his motion for a temporary injunction restraining the sale of a vehicle and (2) dismissal of his underlying action in replevin. We affirm in part, reverse in part, and remand for final decision on the merits.

FACTS

In 1994, Cynthia Norman, appellant Carey Norman's wife, was charged with seven counts of theft by swindle. She was convicted and sentenced.

Respondent Georgina DeMars is one of Cynthia Norman's victims. DeMars has a $38,006.21 civil judgment against Cynthia Norman. Because title to appellant's 1993 GMC Suburban was in both his and Cynthia's names, the Washington County Sheriff's Department seized the vehicle and made arrangements for its sale.

Appellant commenced a replevin action requesting possession of the vehicle or, in the alternative, money damages. Appellant also brought a motion seeking immediate possession of the vehicle and a temporary injunction against the sale. The district court conducted a pretrial hearing on the motion.

At the hearing, appellant offered 23 cancelled checks as evidence that he alone paid for the vehicle and that his name was the only name on the bank account against which the checks were drawn. Appellant also offered into evidence a settlement agreement between Cynthia Norman and another of her victims. The agreement contained a provision that the vehicle would be retained by appellant. The district court found that appellant's "attempt to rebut the presumption of joint ownership has failed."

On July 31, 1995, the district court entered judgment denying appellant's motion for a temporary injunction and dismissing his complaint in replevin. The vehicle was sold by sheriff's sale on August 3, 1995.

D E C I S I O N

I.

An issue is moot and, consequently, will not be considered by a reviewing court,

[w]hen the affirmance or reversal of an order made in the course of the proceeding would make no difference in respect of the controversy on the merits * * * .

Obermoller v. Federal Land Bank, 409 N.W.2d 229, 230-31 (Minn. App. 1987)(alteration in original)(quoting Barnes v. Macken, 252 Minn. 412, 416, 90 N.W.2d 222, 226 (1958)), review denied (Minn. Sept. 18, 1987); see also Moore v. McDonald, 165 Minn. 484, 485, 205 N.W. 894, 895 (1925) (agreeing that appeal was moot when reversal and issuance at time of requested temporary injunction would accomplish nothing).

Appellant argues on appeal that because he was the sole owner of the vehicle, the district court erred in denying his motion for a temporary injunction to prevent the vehicle from being sold. We do not consider this issue because the vehicle has already been sold, and reversal would accomplish nothing.

II.

On appeal from a judgment dismissing plaintiff's underlying action sua sponte, this court must determine whether the district court erred in drawing its legal conclusion. See generally Citizens State Bank v. Leth, 450 N.W.2d 923, 925 (Minn. App. 1990) (setting forth general standard of review in appeals from judgment). Appellant argues the district court erred in dismissing his replevin action without first conducting a trial on the merits. We agree.

Minnesota Statutes chapter 565 (1994) establishes procedures to be followed in an action to recover possession of personal property. Minn. Stat. § 565.23, subd. 1 (1994) provides that

[a] claimant seeking to recover possession of property after service of a summons and complaint but prior to final judgment shall proceed by motion.

Minn. Stat. § 565.23, subd. 2 (1994) provides for a hearing on the motion. Minn. Stat. § 565.23, subds. 3, 4 (1994) provide:

Subd. 3. After a hearing, the court shall order seizure of the property from respondent and delivery to claimant * * * unless the court makes the following findings:

(a) Respondent has shown a defense to the merits of claimant's claim, * * * ;

(b) The interests of respondent cannot be adequately protected by the bond * * * ; and

(c) The harm suffered by the respondent would be substantially greater than the harm which would be suffered by the claimant if the property were not delivered to the claimant prior to final decision on the merits.

Subd. 4. If the court makes the findings prescribed by subdivision 3 and orders that respondent may retain possession pending final decision on the merits, the court shall enter a further order protecting the rights of the claimant to the extent possible.

(Emphasis added.) Although Minn. Stat. § 565.23, subds. 1-4 do not expressly direct the district court to conduct a trial on the merits, this language implies a legislative intent that, following the decision on a motion to recover possession prior to final judgment, the underlying action for replevin must be decided on the merits.

In this case, the district court found that appellant would not likely succeed on the merits and that the respondent would suffer the greater harm. The district court then ordered that respondent retain possession of the vehicle without the qualification that possession remain in respondent pending final decision on the merits.

In an action to recover the possession of personal property, judgment may be rendered for the plaintiff and for the defendant, or for either. Judgment for either, if the property has not been delivered, and a return is claimed in the complaint or answer, may be for the possession or the value thereof in case possession cannot be obtained, and damages for the detention, or the taking and withholding.

Minn. Stat. § 548.04 (1994)(emphasis added).

Although the sale of the vehicle has made recovery of possession a moot issue, appellant may still recover damages. Therefore, the district court erred when it dismissed the underlying action.

Affirmed in part, reversed in part, and remanded for final decision on the merits.


Footnotes

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