STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1554

A06-2048

AHR Construction, Inc.,
Respondent,

vs.

Joseph O. Dixon,
Appellant,

and Joseph O. Dixon,
Appellant,

vs.

AHR Construction, Inc.,
Respondent.

Filed August 28, 2007

Affirmed; motion to strike dismissed as moot

Stoneburner, Judge

Hennepin County District Court

File Nos. 27CVHC061903 and 27CV0614021

Bradley J. Loch, 5840 Hodgson Road, Shoreview, MN 55126 (for respondent AHR Construction)

Joseph O. Dixon, Box 580050, Minneapolis, MN 55458 (pro se appellant)

Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

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

STONEBURNER, Judge

In these consolidated appeals, pro se appellant challenges (1) the district court’s issuance of a writ of recovery to respondent for property that respondent bought at a foreclosure sale and (2) the district court’s grant of summary judgment dismissing appellant’s conversion action against respondent. Because respondent was entitled to possession of the property and there are no genuine issues of material fact in the conversion action, we affirm both decisions.

FACTS

This matter involves the consolidated appeals of two actions involving the same parties. Appellant Joseph O. Dixon is the former owner of residential property located at 1710 Fremont Avenue, Minneapolis (the property). The property was condemned by the City of Minneapolis on February 7, 2003. Respondent AHR Construction, Inc. (AHR) bought the property at a mortgage-foreclosure sale on January 5, 2006. The sale was recorded in the Hennepin County Recorder’s Office on January 6, 2006.

Based on its belief that the property had been abandoned, AHR petitioned on January 9, 2006, to reduce the six-month redemption period to five weeks. On January 10, 2006, AHR entered the premises with the objective of changing the locks as permitted by Minn. Stat. § 582.031, subd. 2 (2006), to prevent waste. At that time, AHR discovered that Dixon was still living in the condemned premises. AHR left the property and withdrew its petition to accelerate the redemption period.

I. A06-1554: The eviction action

Dixon did not redeem the property, and the redemption period ended on July 5, 2006. On July 6, 2006, AHR filed an unlawful-detainer complaint against Dixon, asserting a right to possession of the property (the eviction action). The district court held a hearing on July 31. Dixon testified at the hearing. He acknowledged that there was a sheriff’s certificate of sale and that he had not redeemed the property within the redemption period, but he attempted to challenge the foreclosure. Based on Dixon’s admission to the allegations in the eviction action, the district court granted AHR a writ of recovery but delayed the effective date of the writ to August 8, 2006, to give Dixon time to initiate an appropriate action to challenge the foreclosure and request an injunction.

Dixon did not initiate an action to challenge the foreclosure, and the writ was executed on August 16, 2006. Dixon was evicted, and his personal property was stored on the property.[1] On August 16, 2006, Dixon moved to quash the writ. The motion was denied by the district court’s order dated August 18, 2006. Dixon appealed and moved the district court to stay his eviction pending resolution of his appeal. The motion was denied.

II. A06-2048: The conversion action

On July 24, 2006, Dixon filed a document captioned “Joseph Dixon, Plaintiff v. AHR Construction, Inc., Defendant” and titled in relevant part “MOTION TO DISMISS DEFENDANT’S COMPLAINT IN ITS ENTIRETY, RETURN PLAINTIFF’S REAL ESTATE PROPERTY HOME . . . MOTION TO BAR DEFENDANT FROM BRINGING ANY OTHER LAWSUIT AGAINST PLAINTIFF.” For reasons not explained in the record, this document, which was not accompanied with a Summons, was treated as a complaint and resulted in the opening of Hennepin County Court File No. 27-CV-06-014021 (the conversion action).[2] Among other allegations, Dixon asserts in this document that his home was “obtained by theft, criminal conspiracy and organized crime”; that defendant vandalized the home on January 10 and 13; and that the mortgage company acted illegally. Dixon demanded $10 million in compensatory damages.

AHR moved for summary judgment supported by the affidavit of its attorney outlining the history of AHR’s purchase at the foreclosure sale, AHR’s attempt to change the locks on the property in January 2006, Dixon’s failure to redeem during the redemption period, AHR’s unlawful-detainer action, issuance and execution of the writ, and Dixon’s post-writ motions. AHR’s affidavit explains that (1) a res judicata claim in Dixon’s “motion” refers to AHR’s cancellation of its request to accelerate the redemption period in January 2006; (2) AHR is not a party to the federal litigation referred to by Dixon against his mortgage company and its assignees; and (3) the vandalism claim relates to AHR’s attempt to change the locks at the property, during which, AHR asserts, no damage to the property occurred.

Dixon opposed AHR’s motion for summary judgment and made a cross-motion for summary judgment supported by his affidavit stating that AHR illegally entered the property on January 10 and January 13, 2006, and caused damage to the property on both occasions. But Dixon’s motion states that the “focus” of his lawsuit is the “conversion” of his real and personal property by AHR on August 18, 2006.

By order dated October 19, 2006, the district court granted summary judgment to AHR primarily based on Dixon’s failure to submit probative evidence supporting his claim for damages. This appeal followed and was consolidated with Dixon’s appeal in the eviction action.

D E C I S I O N

I. Eviction action

Dixon first argues that the district court erred when it evicted him from the property. “Numerous precedents establish the limited nature and scope of an eviction proceeding, which is summary in nature.” AMRESCO Residential Mortgage Corp. v. Stange, 631 N.W.2d 444, 445 (Minn. App. 2001). In an eviction proceeding, “the only issue for determination is whether the facts alleged in the complaint are true.” Minneapolis Cmty. Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986); see also Minn. Stat. § 504B.355 (2006). This court applies a clearly erroneous standard of review to the district court’s findings of fact. Minneapolis Cmty. Dev. Agency, 379 N.W.2d at 555.

“The person entitled to the premises may recover possession by eviction when . . . any person holds over real property . . . on foreclosure of a mortgage and expiration of the time for redemption.” Minn. Stat. § 504B.285, subd. 1(1)(ii) (2006). In this case, Dixon acknowledged that the property was sold by the sheriff’s office at a foreclosure sale and that he did not redeem the property. The district court did not err in finding that AHR was entitled to possession of the property.

Dixon also challenges the validity of the underlying foreclosure. But challenges to a foreclosure cannot be raised in an unlawful-detainer action and must be asserted in a separate proceeding. See AMRESCO, 631 N.W.2d at 446 (upholding a district court’s dismissal of counterclaims that challenged the underlying foreclosure in an eviction proceeding). In AMRESCO, this court declined to expand the summary nature of eviction proceedings and explained that the summary nature of the proceedings reinforced the public policy of preventing parties from taking matters into their own hands. Id. Furthermore, AHR is not the mortgage company, and the mortgage company was not involved in the eviction action. Dixon’s challenge to the grant of the writ of recovery to AHR is without merit.

II. Conversion action

Dixon asserts that the district court erred when it granted summary judgment to AHR in the conversion action. On appeal from summary judgment, appellate courts ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). On appeal, the 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). No genuine issue for trial exists “where 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) (quotation omitted). To defeat a summary-judgment motion, a party “must do more than rest on mere averments” and must establish a genuine issue for trial with substantial evidence. Id. at 69-71.

The record supports the district court’s conclusion that Dixon failed to produce probative evidence that would give rise to a genuine issue of material fact, precluding summary judgment on any of his claims against AHR.[3] Dixon’s affidavit alleges that AHR damaged his property on two dates, including the date that AHR asserts that AHR came to change the locks. But Dixon has not produced any evidence of the amount of damage he claims AHR caused to the property, and he has only asserted an unsupported total damage claim in the amount of $10 million. See DLH, Inc, 566 N.W.2d at 70 (stating that when determining whether a genuine issue of material fact for trial exists, 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). Additionally, because AHR was entitled to possession of the property and continually instructed Dixon about how he could recover his personal property, there is no merit to Dixon’s claim that AHR converted his property. The district court did not err in granting summary judgment to AHR.

III. Motion to Strike

Dixon argues that documents in AHR’s appendix to its reply brief in the conversion appeal should be stricken because they are not in the record. The record on appeal is limited to “[t]he papers filed in the [district] court, the exhibits, and the transcript of the proceedings.” Minn. R. Civ. App. P. 110.01. Several pages of AHR’s appendices are not contained in the district court file. But theses documents provide only undisputed background information, and AHR’s attorney’s sworn affidavit detailing this background information is part of the record. Furthermore, this court has not relied on the disputed documents to reach its decision in this appeal. We conclude that the motion to strike is moot.

Affirmed; motion to strike dismissed as moot.

[1] Dixon was instructed by AHR on the record several times about how he could recover his personal property and that the property would only be stored for the statutorily required 60 days, which would expire on October 14, 2006. Minn. Stat. § 504B.365, subd. 3(a)-(c) (2006). But it appears that Dixon did not recover his personal property.

[2] Despite the lack of a summons, AHR did not pursue dismissal of the action on this basis in district court or on appeal.

[3] Based on Dixon’s initial filing, he also appears to be challenging the underlying foreclosure, but that challenge cannot be brought against AHR, which was not the mortgage company.