STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1079

Viola Weber (original Plaintiff, deceased),

Dwaine Weber and Maureen Weber (substitute Plaintiffs),

Respondents,

vs.

The Basic Bible Church of America,

The Order of Almighty God, Chapter 7024, Richmond, Minnesota, et al.,

Defendants,

James Noske,

Appellant

Eugene V. Sitzmann,

Respondent.

Filed June 5, 2007

Affirmed; motion granted in part, denied in part

Ross, Judge

Stearns County District Court

File No. C1-97-1705

Samuel V. Calvert, 1101 Second Street North, Suite 107, St. Cloud, MN 56302-1044 (for respondents Dwaine and Maureen Weber)

James L. Noske, 1206 Heritage Drive, Waite Park, MN 56387 (pro se appellant)

Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

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

ROSS, Judge

On appeal from summary judgment in this quiet-title action, James Noske argues that the district court erred by concluding that a church organization’s failure to bring a wrongful-levy action under I.R.C. ง 7426 (2000) bars his current claim of title, and that the court improperly resolved a factual dispute by finding that he is the alter ego of several organizations. Noske also challenges the district court’s denial of his posttrial motions. Because the district court correctly held that Noske’s claim is waived and did not abuse its discretion by denying his motions, we affirm.

FACTS

This appeal arises from a dispute over ownership of 160 acres of farm land that has been transferred several times since the death of its owner, Sam Weber, in 1960. After his death, his widow, Viola Weber, obtained a fee-simple interest in the property.

In 1977 Viola Weber transferred her entire interest in the Weber farm to Chapter 7024 of the Basic Bible Church of America, The Order of Almighty God. The record does not include any finding concerning whether this organization is part of an entity that actually has other chapters, or whether it conducts religious services or otherwise functions as a church. James Noske prepared the deed transferring the interest to the organization. In 1978, the organization established a trust funded by multiple parcels of land, including the Weber farm. The trust named Noske’s sister the trustee and stated that the purpose of the trust was to obtain, hold, and manage real property on behalf of the organization. The trust was revocable and provided that, if revoked, the property would revert to the grantor or to the organization’s “Head of the Order.” Noske signed the trust agreement as the organization’s Head of the Order. The organization was unincorporated, but a corporation named BBCA, Inc., formed in 1980. Xemas, Inc. v. United States, 689 F. Supp. 917, 920 (D. Minn. 1988). The record does not include an admission that “BBCA” is an abbreviation for “Basic Bible Church of America,” and the documents available do not address it. Noske’s sister was the first president of BBCA, which is now known as God’s Helping Hands. God’s Helping Hands v. Taylor Inv. Corp., Nos. C7-99-624, C4-99-631, 1999 WL 759991, at *1 (Minn. App. Sept. 28, 1999).

Beginning in 1987, in an attempt to recover taxes owed by the Noskes, the Internal Revenue Service filed a series of tax liens on the Weber farm against “Basic Bible Church of America, Order of Almighty God, Chapter 7024, as alter ego of James L. Noske.” The IRS filed additional liens in 1990 and 1995, listing the same taxpayer.

In September 1996, the IRS seized the Weber farm through a levy, and Eugene Sitzmann purchased the property from the IRS in a sealed-bid sale. In early May 1997, Viola Weber commenced a quiet-title action against Basic Bible, Chapter 7024, BBCA, and Sitzmann. The complaint also named BBCA as a defendant as the alter ego of Noske and his sister. Viola Weber redeemed the property in mid-May and took title from Sitzmann. She soon transferred the farm to her son and his wife, Dwaine and Maureen Weber. Viola Weber did not pursue her quiet-title action after the redemption sale.

But Noske’s sister purportedly conveyed the farm to Noske in June 2004. Noske then revived the litigation in December 2004 by moving to amend the answer that he filed in 1997, claiming that he owned the property. Because Viola Weber died in 2002, Dwaine and Maureen Weber became plaintiffs by substitution in the revived litigation.

The Webers and Noske each moved for summary judgment. The district court initially granted the Webers’ motion, but later vacated its order. In April 2006, after reconsidering the matter, the district court again entered summary judgment in favor of the Webers and denied Noske’s motion. The court held that the IRS sale to Sitzmann was valid, as was the redemption by Viola Weber. The court held that Noske waived his right to assert title because Basic Bible failed to bring a wrongful-levy action under I.R.C. ง 7426 (2000). Despite its waiver conclusion, the district court additionally found that the organization, Basic Bible, and BBCA were alter egos of Noske and his sister. The court denied Noske’s posttrial motions for reconsideration and for amended findings or a new trial. Noske appeals pro se. He also moves to strike multiple documents and various references from the Webers’ appellate brief and appendix.

D E C I S I O N

On appeal from summary judgment, we review the record in the light most favorable to the nonmoving party to determine whether any genuine issues of material fact exist. See DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). To establish a genuine issue of material fact, the nonmoving party must present evidence sufficient to permit reasonable persons to find facts that would support the claim. Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006). Although the district court may not weigh evidence on a motion for summary judgment, “the court is not required to ignore its conclusion that a particular piece of evidence may have no probative value, such that reasonable persons could not draw different conclusions from the evidence presented.” DLH, 566 N.W.2d at 70. When the material facts are undisputed, we review whether the district court erred in its application of the law to the facts. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).

When a person neglects or refuses to pay his tax liabilities, the IRS may create a lien in favor of the United States in the amount owed on “all property and rights to property . . . belonging to such person.” I.R.C. ง 6321 (2000); see also United States v. Nat’l Bank of Commerce, 472 U.S. 713, 719–20, 105 S. Ct. 2919, 2923–24 (1985) (discussing broad scope of section 6321 and congressional intent to “reach every interest in property that a taxpayer might have”). The lien continues until the liability is satisfied or otherwise becomes unenforceable. I.R.C. ง 6322 (2000). The IRS also has the authority to collect unpaid taxes by levying on “all property and rights to property . . . belonging to such person or on which there is a lien . . . for the payment of such tax.” Id. ง 6331(a) (2000). The IRS may seize property by any means, and the levy extends “only to property possessed and obligations existing at the time thereof.” Id. ง 6331(b) (2000). After seizing property, the IRS may sell it. Id.

A levy is an immediate seizure of property by which the government forces a debtor to relinquish property in hopes of collecting the debtor’s delinquent taxes. See United States v. Barbier, 896 F.2d 377, 379 (9th Cir. 1990) (explaining differences between liens and levies). Although a levy under section 6331 results in an immediate seizure of property, it is only a provisional remedy. Nat’l Bank of Commerce, 472 U.S. at 720, 105 S. Ct. at 2924. When the government places a levy on property, the taxpayer or another person claiming a superior interest in the land may challenge the levy. I.R.C. งง 6343(a) (identifying circumstances requiring release of levy), 7426(a)(1) (allowing nontaxpayer who possessed levied property to challenge levy as wrongful) (2000). It is undisputed that neither of the Noskes nor any of the referenced entities challenged the levy.

We hold that the district court correctly entered summary judgment in favor of the Webers. Noske does not dispute his underlying tax liability to the government that gave rise to the liens and levy. The levy on the Weber farm was an attempt to recover his delinquent taxes, and Noske took none of the steps outlined in section 6343 to have the levy released. Noske’s sister, as trustee, was the title owner of the farm at the time of the levy in September 1996. Neither she nor her chapter of Basic Bible challenged the levy as wrongful within the statutory, nine-month challenge period. See I.R.C. ง 6532(c) (2000) (requiring wrongful-levy claim within nine months of levy). And if the church organizations were Noske’s alter egos, as the district court found, then he had an interest in the land. Yet he did nothing to remove the levy before the sale to Sitzmann. The government proceeded with a valid and recorded sale to Sitzmann. See Nat’l Bank of Commerce, 472 U.S. at 722, 105 S. Ct. at 2925 (noting that state law controls title while Internal Revenue Code provides only federal consequences to state-created rights). Viola Weber properly redeemed the property and conveyed it to her son and daughter-in-law, and the transfers were recorded well before Noske’s sister purportedly transferred the land to Noske. See Minn. Stat. ง 507.34 (2006) (stating that unrecorded conveyances are invalid against subsequent bona fide purchaser for consideration).

Noske argues that the sale to Sitzmann was invalid because the government’s certificates of sale listed the taxpayers as Noske, BBCA as the alter ego of Noske, Noske’s sister, and BBCA as the alter ego of his sister. None of those who were listed as taxpayers, he argues, had any interest in the land and therefore the IRS did not actually transfer any interest to Sitzmann. He maintains that BBCA is a distinct entity with no interest in the land. By affidavit, his sister asserted that the name “BBCA” does not abbreviate “Basic Bible Church of America,” and the letters “are not an acronym for anything.” A party must establish a material factual dispute with evidence having probative value. DLH, 566 N.W.2d at 70-71. Even without a statistician’s confirmation of the obvious, under the circumstances, giving any probative weight to the implication that “BBCA” constitutes a random collection of letters or represents something other than “Basic Bible Church of America” would require the court to stretch its imagination too far and to accept the absurd. We do not find the assertion to create a genuine issue of material fact that precludes summary judgment.

Noske also argues that section 7426 does not bar his claim. But the cases on which he relies do not support his application of law to these facts. The Ninth Circuit has held that section 7426 “does not preclude one with an interest in property seized and sold by the United States from pursuing a claim against a subsequent purchaser in state court.” World Marketing, Ltd. v. Hallam, 608 F.2d 392, 394 (9th Cir. 1979). The Tenth Circuit has held the same. Crow v. Wyoming Timber Prods. Co., 424 F.2d 93, 96 (10th Cir. 1970) (holding that section 7426 applies only when defendant is United States). But in these cases, the parties bringing the action were nontaxpayers claiming an interest in the seized property that existed at the time of the levy. Noske’s case is distinct because, first, he is the taxpayer who prompted the levy, and, second, he does not argue that he had an interest in the Weber farm when the IRS imposed its levy. Because the district court correctly entered summary judgment on the ground that Noske’s claim of title is waived, we affirm. We need not reach the issue of whether the district court correctly found that the various organizations are the alter egos of Noske.

Noske challenges the district court’s denial of his motion for amended findings. A party may move the district court for amended or additional findings. Minn. R. Civ. P. 52.02. The party seeking changes to the court’s findings must identify and explain alleged defects and show that the district court was compelled to make the requested findings. Zander v. State, 703 N.W.2d 845, 857 (Minn. App. 2005). We review denial of a motion for amended findings for an abuse of discretion. Id. The district court determined that Noske’s motion was untimely, but it also stated that it would have denied the motion on its merits because the motion restated arguments raised in his previously denied motion for reconsideration.

We agree with Noske that his motion was timely, but we uphold the district court’s denial on the merits. A timely motion for amended findings must be served “within 30 days after a general verdict or service of notice by a party of the filing of the decision or order.” Minn. R. Civ. P. 52.02, 59.03 (stating that motion for amended findings is subject to new-trial motion time limitations); see also id. 6.05 (adding three days to time period when served by mail). The district court issued its findings on April 12, 2006. The Webers mailed notice of the order to Noske on April 14. Noske served and filed his motion on May 16. Although the district court’s timeliness finding was erroneous, it did not abuse its discretion by denying Noske’s motion. Noske filed the motion four days after the court denied a similar motion for reconsideration, and Noske’s motion operated essentially as a second motion for reconsideration.

III

The only remaining issue concerns the treatment of those portions of the Webers’ appellate pleadings that Noske challenges by his motion to strike. The record on appeal consists of “[t]he papers filed in the [district] court, the exhibits, and the transcript of the proceedings.” Minn. R. Civ. App. P. 110.01. The court “may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” Thiele v. Stich, 425 N.W.2d 580, 582–83 (Minn. 1988). Although the record on appeal is generally limited to documents filed in the district court, this court may consider publicly available legal resources that were not presented to the district court. See Fairview Hosp. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n.3 (Minn. 1995) (noting that court may consider publicly available documents not presented to district court); Podvin v. Jamar Co., 655 N.W.2d 645, 648 (Minn. App. 2003) (denying motion to strike public document that respondent included in appellate brief). If a party includes in its brief documents that are outside of the appellate record, we will strike the documents. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d 504 N.W.2d 758 (Minn. 1993).

In his motion to strike parts of the Webers’appellate brief and appendix,Noske raises ten issues, which are further subdivided, to highlight sentences he disagrees with and documents and references he believes are improperly before the court. Wegrantthemotioninpart, and deny the motion in part. Noske has accurately pointed to some matters outside the undeveloped record, and he is correct that the Webers’ brief contains a few minor misstatements of the record. For example, Basic Bible’s bylaws are not in the record, but excerpts appear within the record in some title-abstract entries. And Noske correctly notesthat his sister also answered Viola Weber’s complaint in 1997. Some of the references to the Noskes’ and church organizations’ history are in publicly available judicial opinions. We have not considered any matters outside the record in reaching our decision. Most of Noske’s motion, however, reads less like a motion to strike than a second reply brief, either reasserting challenges to the district court’s order or contesting the Webers’ arguments. Despite its occasional merit on minor or inconsequential points, this is not the proper use of a motion to strike.

Affirmed; motion granted in part, denied in part.