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Much has changed, while some remains the same, with boundary resolution in 2010. People still care passionately about land they purchased, or thought they owned. They can be surprised with the outcome of a survey; surveyors can disagree (gasp!); monuments cannot be found; and, in outstate, much surveying remains to be done as methodology has changed.
This article describes the developments in the law of adverse possession and boundary by practical location, the two theories under which boundary disputes are litigated. It will focus attention on the impact of case law and statutory change over the past five years.
Adverse Possession is an action which is, in a sense, created by a statute of limitation. The statute simply says that one cannot recover land that one has not held in one’s possession within 15 years. Another section authorizes the action to determine boundaries, whether abstract or
Practical Location is a separate approach where boundaries can be established, that can—under some circumstances—be achieved in less than 15 years.
Issues in resolving boundary disputes involve a few key elements.
Counseling is necessary, perhaps emotional as well as legal. Claimants must assert their rights; but they could get more than their hand slapped if they rely on self-help, and overstep.
We will consider these key issues individually before discussing the separate avenues of adverse possession and boundaries by practical location.
Real Estate Taxes
In boundary cases, it is usually not a requirement to have paid property tax to claim the property successfully.1 The general rule is that tax payment by the claimant is not required in a boundary line case,2 however, when tax payment is obligatory, five years of consecutive payment is required. The exception is where a claim comprises a separate tax parcel.3 Where the claim is to a large portion of a tax parcel, the claimant is not protected by the boundary line exception; he must have paid the real estate taxes.4
In LeGro v. Saterdalen, the court held that real estate taxes need not have been paid even though, arguably, the claimant sought ownership of a separately taxed parcel, The facts indicate some confusion in the tax
assessor’s office with the court concluding the claimant had paid the taxes as occupied.5
Tacking and Privity
In today’s market, a client seldom owns a piece of real estate for at least 15 years. If a claim will rely on possession by earlier owners, then the plaintiff must have been in privity with them. Customarily, a direct chain of title suffices, such as when Blackacre was sold by Olson to Johnson; Johnson sold to Nelson; Nelson sold to
The claimant of adverse possession does not need to show that she or he held possession of the property for 15 years if their predecessors in title can be shown to have possessed the property.6
Privity exists if the relation between various parties comes about through deed, voluntary conveyance, will, or descent.7
In a 2009 Court of Appeals decision, the court rejected the claimant’s tacking effort. The court required a showing that each former owner was in privity and maintained hostile possession.8
The ownership of a corporation might also be tacked; but the court has required some overt use of the property by an officer of the corporation.
But since appellant’s predecessor in title was a corporation, and there was no showing that corporate officers or agents used the land, Kroiss and appellant are not in privity. Thus, Kroiss’s ownership cannot be tacked to appellant’s to satisfy the
requirements for adverse possession.9
As noted, the rise in foreclosures may give rise to additional issues. Given the volume of foreclosures that have occurred, we might expect that case law would have resolved the existence of privity by some foreclosing lender or its successor. This author frequently represents lenders in contested title litigation, at times including boundary or access issues. No truly dispositive decision has been found to date. There is one old case which sheds some light on this issue. In Hanson v. Sommers,10 following foreclosures on both sides of a tangled chain of title, Hanson remained in possession of the property. Hanson permitted a tenant to take over for the remainder of the statutory period. The Supreme Court ruled: “No doubt can arise that there was here a privity of estate between the successive wrongful holders requisite to enable allowance of the privilege of tacking.” But this decision does not adequately resolve the issue because the Court deemed Hanson and his tenant’s possessions in sequence had adequate standing alone and apart from the foreclosure.
Dictum from another decision may imply that when a mortgagee becomes owner and does not take physical possession, the actual and continuous possession might be interrupted. The case actually turned on the decision that an earlier quiet title action went uncontested by the defaulting fee owners, whose rights were forfeited along with those of the lender who was not even named in the action.11
Plainly, privity exists between an owner and a lender. It may be seen as problematic if the lender forecloses the owner and an assignee of a judgment creditor of the owner, or of a holder of a townhouse lien purchases the sheriff certificate and redeems from the foreclosure sale. While it is not clear how the modern court might treat some foreclosing lender’s succeeding lien holder’s subsequent purchaser, this nonetheless provides some indication that a foreclosure in the chain does not wipe out every vestige of rights. Personally this author would argue that it is better for society that the requirement of privity be relaxed in favor of the more important factor: permanent resolution of boundary disputes where use and possession has been constant.
An attorney should resist the temptation to appear tough and forceful to clients by assisting them to demolish a fence, set fire to a shed, or chain off an access road. And don’t permit clients to do it without you, either. There may be instances where some forceful act really is necessary, such as when some right is expiring. On occasion, though very seldom, it will be essential to stop the running of the statute of limitations (tolling the statute).
Tolling is important to an attorney who wants to prevent the 15-year statute from running against the client. A lawsuit will generally toll the statute of limitations, provided the lawsuit is maintained to its conclusion. The general rule is that commencement of a lawsuit usually stops the running of the statute of limitations in adverse possession cases.12
Osgood v. Stanton13 involves an unusual intersection between the Court of Appeals’ rejection of the claimants’ effort to tack periods of possession and the consequence of tolling of the statute of limitations. The outcome of this case may, in part, be attributed to evident irascible behavior of a litigant. Osgood possessed a tract of land for well over 15 years, but the 15-year period was interrupted by two lawsuits. He sought to include part of his own period of possession prior to one of the lawsuits to reach the required 15 years. The Court of Appeals essentially ruled that one of the cases was pursued to conclusion and therefore interrupted the running of the statute of limitations, and that the two periods could not be tacked together. The conclusion drawn is that the way to interrupt the running of a statute of limitations is to sue, but the claimant must complete the lawsuit. Otherwise, the statute can continue running and then expire.
A lawyer must also not allow a client to interfere with a surveyor asking to enter land to do field work.
It is lawful for any surveyor to enter upon any land for the purpose of locating existing survey or reference monuments or landmarks, provided, however, such surveyor shall be responsible to the landowner for any and all damages as a result of such entry, and no surveyor may enter upon any land unless first notifying the owner or occupant of the intended entry for such purpose.14
It should be noted also that no surveyor may remove older stakes.15
Basics of Adverse Possession
Ganje v. Schuler establishes the basic elements of adverse possession.
To show adverse possession, the disseizor must show, by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the requisite period of time which, under our statute, is 15 years.16
As a general rule, adverse possession is unavailable against registered
By affording a method of acquiring a decree of registration and a certificate of title free from all adverse claims and encumbrances not noted on the certificate, the
Perhaps counter-intuitively, boundaries established by adverse possession or by practical location of boundary will supersede the outcome of an indisputably correct survey.19
To establish actual possession the claimant must have some domination and control over the property. The degree of possession will vary based on the type of property. Working farm land for the summer has been sufficient.20 In one case, “substantive and frequent” agricultural and homestead-related uses of the land, including mowing the lawn, were sufficient.21
The 15-year period may involve a period that ended/was interrupted before the lawsuit. Because ownership effectively transfers at the completion of a 15-year period of possession meeting all the statutory requirements, a period of a few years could then ensue where another has taken possession, ousting the former adverse possessor. But if the claimant’s possession ripened into title by passage of 15 years, then even though interrupted by a new possession, the property can be recovered and title settled in the name of the claimant (provided a new 15-year period of adverse possession has not expired).22
Sporadic use is not enough to constitute actual possession. One of the most troublesome areas is analysis of the type of use to determine whether it both meets actual and continuous rules. This is truly determined on a case-by-case basis. Uses that were not sufficient in one decision turn out to be just enough to transfer title in another as evidenced in the following cases:
Sporadic use of lake property for storing a dock and play equipment, mowing the grass, and allowing children to play on property has been held to be insufficient by itself.23
In contrast, a recent, although unpublished Court of Appeals case24 distinguished Stanard although it involved use that was comparable. Possibly an unstated rationale for the decision was that the claimant had deeded the land away inadvertently. The court found very slight maintenance to be sufficient to warrant grant of ownership based on both adverse possession and boundary by practical location.
In Nash v. Mahan,25 staking land was not enough; but mowing a part of the land did suffice.
In a case the author tried, appellant argued the claimed area was wild, not maintained, and therefore not possessed. The court held claimant’s use was appropriate to the area as the owners had gone for walks in the wooded area, children had ridden BMX bikes, and horses were ridden there. The District Court and Court of Appeals held the possession was sufficient and appropriate to the area.26
Along those same lines, the use required in a rural area may be less than in more developed areas. In a 2009 unpublished Court of Appeals opinion, cattle pasturing and duck hunting were enough for various areas.27
That possession must be continuous seems fairly obvious, but there are a few nuances. Possession must be uninterrupted in any way.28 Further, though the possession is subsequently interrupted, if it had continued for 15 years before the interruption, title has ripened and should be established. To maintain a title acquired by adverse possession, it is not necessary to continue the adverse possession beyond the time when title is acquired.29 However, a four -month absence from the state was ruled not a substantial interruption in the continuity of possession.30
While the possession must be open, this does not mean that the owner must have seen it; just that the possession is visible. In this context the author has argued that a buried pipeline or invisible dog fence does not constitute open possession.
The Hickersons argue that the improvements were not “open, notorious, and hostile” because the improvements may not have been visible to their predecessors in title from adjoining Green
Where a statute of limitations is operating to bar his rights, the record “legal” owner should be on notice through the claimant’s open possession that his property is being seized.
Exclusive possession will not be defeated by a “brief and insubstantial entry” by the true owner.32
Hostile possession simply refers to an intention to claim the property as one’s own, a use that goes on without permission by the true owner.
To establish hostility, which does not mean personal animosity or physical violence, the disseizor must “enter and take possession of the lands as if they were his own... with the intention of holding for himself to the exclusion of others.”
A variety of actions can defeat a claim of hostility, including acknowledging another’s ownership, consent, or even implied consent. A claimant can defeat his own claim where he admits the ownership of his neighbor. An acknowledgment by the adverse claimant of the owner’s title before the statute has run in his favor breaks the continuity of his adverse possession, and it cannot be tacked to any subsequent adverse possession.34
One recent decision distinguishes an offer to purchase that was only an effort to clear a disputed title:
But whether Siegel’s attempted purchase was intended only to perfect the title or instead demonstrated that he had never considered the land to be his own is a fact question.
Siegel’s attempt to purchase the land is but one fact among several that support the district court’s finding that Siegel’s possession was never hostile.35
However, the opposite result was reached in Winfield v. Kasel,36 where an adverse
claimant first executed a lease for the disputed land, then prosecuted this suit successfully claiming he owned up to a fence by virtue of adverse possession. The court relied on the fact the statute of limitations had already expired.37
A wise attorney will therefore carefully denominate any offer of settlement to purchase, take an easement, etc., as protected under Rule 408, Minnesota Rules of Evidence, pertaining to offers of compromise.
In order for possession to be adverse, it cannot be commenced or continued with the consent of the legal owner. The consent makes the possession non-hostile.
…where an occupant’s original possession of land was permissive the statute of limitations did not commence to run against the owner until the occupant had subsequently declared or otherwise manifested an adverse holding and notice thereof had been brought to the attention of the owner.38
While formal consent clearly defeats the hostile element that is required, even an implied consent has been ruled to overcome hostile possession. The court has implied consent where there was a close family relationship between original owners and the ownership was then separated. This can occur when a farmer sells off and divides part of the farm to a son or daughter who holds part of the land still within the seller’s legal description. Until the daughter or son sells to a non-family member, the use is deemed permissive.39
There are other limits on adverse possession. Minnesota statute holds that a private citizen may not adversely possess adjoining public lands even though he would otherwise meet all the tests.40 One may not acquire a state swamp,41 or a public school grounds.42
However, a municipality may compromise a disputed boundary location and later be forced to honor it.43 For abandonment of public property to be shown, there must be some affirmative or unequivocal acts of the municipality representing intent to abandon.44
A further counter to a claim of adverse possession or practical location is a threat of an action for damages: compensatory or—in rare cases—punitive. One may bring an action for damages for trespass if there has been genuine loss. Often, however, there may be little proof of actual damages. The Supreme Court has ruled with regard to damages for trespass:
The general rule is that damages in an action for trespass upon real property may be such as are appropriate to the tenure by which the plaintiff holds. Possession alone will entitle him to recover damages for any injury solely affecting it. If he seeks to recover for the future, he must show that his title gives him an interest in the damages claimed, and he can recover none except such as affect his own right, unless he holds in such relation to other parties interested that his recovery will bar their claim.45
Although the Court commented above regarding future trespass damages, usually the remedy would be the removal of the trespass rather than the award of future damages. Damages may not be based on speculation or guess.
Without actual provable damages, a claimant may be limited to nominal damages.46 Rare cases have permitted punitive damages. Minnesota law provides that punitive damages are allowed in civil actions upon clear and convincing evidence that the defendant’s acts show deliberate disregard for the rights or safety of others.47 A defendant acts with deliberate disregard for the rights or safety of others if the defendant acts intentionally in disregard of facts that create a high probability of injury to the rights or safety of others.48 Brantner Farms, Inc. v. Garner49 involved a large punitive damages award ($50,000) made despite the fact the jury gave only nominal actual damages ($800). It seems reasonable to suggest that a good faith claim to adverse possession should bar consideration of punitive damages or claimants may be unfairly prohibited from bringing such claims for fear of disproportionate punishment.
However, no punitive damages can be awarded for a trespass if there were no actual damages.50 One Supreme Court decision allowed “double dipping” when a trespass included damage to trees. The Court there said the claimant could recover both treble damages (under the tree statute) and punitive damages:
Appellants argue that treble damages for the destruction of trees, shrubs or bushes are punitive in nature. Therefore, appellants claim permitting both treble damages and punitive damages effectively permits an unfair double recovery for the same injury.51
Flexibile application of equity has been ruled unacceptable by appellate courts. In Gabler v. Fedoruk,52 a claimant proved a boundary was established by practical location but the trial court granted only a prescriptive easement and gave damages to the losing landowner. The Court of Appeals said a court’s equity powers are not so elastic. Rather, if the claiman is entitled to it, he deserves confirmation of his title; then there is no basis for damages to the forfeiting owner. The decision drew a dissenting opinion. But in a case decided in late August 2010, the Court of Appeals reiterated that the trial court must follow the law and award ownership when the right is proven; the court cannot use elastic equity to fashion a different result:53
An attorney should take note that the burden of proof on a claimant is by clear and convincing evidence.54 This burden is considerable because “every presumption [is] against [the disseisor].”55 Also, adverse possession (as well as boundary by practical location) claims are almost universally fact driven and summary judgment is seldom, if ever, available; although the Mauer decision referenced above is a rare exception. For example, in Bruers v. Wherly,56 the Court of Appeals reversed a grant of summary judgment.
While this section has focused on adverse possession, an attorney would do well to plead all theories, both adverse possession and practical location. Though similar, the two theories are not identical and may require different proof. In one decision, the Court of Appeals inferred that it might bar a party from establishing practical location of a boundary if the party had proceeded solely on an adverse possession theory through the trial without ever mentioning the practical location theory. The court went on to state that “relief cannot be based on issues that are neither pleaded nor voluntarily litigated.”57
In Quast v. Brose,58 in a seeming close decision, the court allowed practical location to be raised for the first time in post-trial memoranda. However, in a recent decision, the claimant pleaded too precisely, claiming only practical location by agreement. He was not allowed to argue practical location by acquiescence theory on appeal.59
Also, one very recent decision makes it clear the attorney must timely assert a demand for arbitration under an agreement and can forfeit the right to insist on it as alternate dispute resolution.60
Basics of Boundary by Practical Location
The second theory under which boundary disputes are resolved is the establishment of a boundary by “practical location.” It is often founded on the location of a fence, not infrequently a fence that has been in place long enough to have wire grown into trees near it. It virtually always requires presence of some structure locating the boundary:At a minimum, case law requires that a boundary line established by practical location by acquiescence must have some type of physical demarcation.61
The two distinct theories may be confused because they are used somewhat interchangeably. This theory looks to the neighbors’ actions and understanding respecting a boundary which may be inferred often through circumstantial evidence. Boundary by practical location is not applied to a large parcel of land. A claim to a larger parcel is simply not a true boundary dispute.62
Three conditions to establish a boundary by practical location are identified in Romanchuk v. Plotkin:
Ordinarily, in order to establish a practical location of a boundary line it must appear (1) the location relied on was acquiesced in for the full period of the statute of limitations; or (2) the line was expressly agreed upon by the parties and afterwards acquiesced in; or (3) the party barred acquiesced in the encroachment by the other, who subjected himself to expense which he would not have done if there had been a dispute as to the line.63
The statute of limitations requires the boundary to be acquiesced in for 15 years.64 While the statute of limitations literally applies to boundaries established via acquiescence, boundaries which can be established either through an express agreement or through an estoppel do not require passage of the 15-year period. Therefore, if neighboring landowners expressly agree on a boundary, they do not need to demonstrate acquiescence for the full 15 years to establish a claim.65 What precise length of ensuing acquiescence will suffice is an open question, but likely relates to providing confirmation of the express agreement.
Neighbors can come to an agreement followed by acquiescence for the statutory period. Recently, the court made it clear that the express agreement theory requires clear proof of an agreement: “We hold that an ‘express agreement’ requires more than unilaterally assumed, unspoken and unwritten ‘mutual agreements’ corroborated by neither word nor act.”66
More often cases involve acquiescence without formal express agreement. The classic example of practical location of boundaries is the barbed wire fence installed by two farmers with adjoining property that remains for many years. But other landmarks can work as well, particularly where acquiescence is pled, so long as the landmark is intended to serve as a boundary line marker. Here the court adds a different requirement: that the parties attempted to put the fence as close as possible, as an alternate requirement.67
No title to registered land in derogation of that of the registered owner shall be acquired by prescription or by adverse possession, but the common law doctrine of practical location of boundaries applies to registered land whenever registered. Section 508.671 shall apply in a proceeding subsequent to establish a boundary by practical location for registered land.68
In contrast to adverse possession, in the case of practical location it is possible to estop a city, township, or other entity from claiming ownership of property, though the standard is high:
We recognize that municipal corporations are afforded an added degree of protection as regards their property: The doctrine of estoppel is not applicable to municipal corporations as freely and to the same extent that it is to individuals. When it is applied, the basis of application is usually not because of the nonaction of the officers of the municipality, but because they have taken some affirmative action influencing another, which renders it inequitable for the corporate body to assert a different set of facts.69
In addition, the court in one recent case discussed a perceived lack of good faith on the part of the claimant as though it was a requisite element.70
Boundaries and access issues will continue to be a source of real property litigation well into the future. When the author mediates these cases for other lawyers, he explains to participants “how it grinds in everyone’s gut to return home at night from work only to see the encroaching fence, shed, or roof overhang which detracts from the client’s property.” He strongly encourages efforts to resolve these disputes via compromise, and routinely asks them how much the land is really worth monetarily versus what they guess litigation will cost them. Then he describes the time it will take to get to trial, get a decision after the end of post-trial
motions, work through appeals, and await the outcome of a contested Court of Appeals’ decision. Such factors often spur parties to move toward a negotiated resolution.
2 See Wagner v. McPhaill, 2008 WL 4909420 (Minn. Ct. App. 2008)(failure to pay real estate taxes didn’t bar adverse possession); Mellenthin v. Brantman, 1 N.W.2d 141, 144 (
4 Grubb v. State 433 N.W.2d 915, 921 (Minn. Ct. App. 1988).
5 LeGro v. Saterdalen 607 N.W.2d 173, 175 (
6 Burns v. Plachecki, 223 N.W.2d 133, 136 (
7 Pederson v. Smith, 2000 WL 821682, 2 (Minn. Ct. App. 2000); Houdek v. Guyse, 2005 WL 406217, 2 (Minn. Ct. App. 2005).
8 Mauer v. Otter Tail Power Company, 2009 WL 2225820 (Minn. Ct. App. 2009).
9 Forbes v. Kociscak, 2002 WL 264576 (Minn. Ct. App. 2002).
10 117 N.W. 842, 843 (
11 Ford Consumer Finance Co., Inc. v. Carlson and Breese, Inc., 611 N.W.2d 75, 78 (Minn. Ct. App. 2000).
13 2009 WL 1586943 (Minn. Ct. App. 2009).
16 659 N.W.2d 261, 266 (Minn. Ct. App. 2003).
18 Petition of Geis, 576 N.W.2d 747, 749 (Minn. Ct. App. 1998) citations therein omitted.
19 Wojahn v. Johnson, 297 N.W.2d 298, 304 (
20 See, e.g., Voegele v. Mahoney, 54 N.W.2d 15, 18 (
21 Schauer v. Zellman, 2001 WL 1530630, 3 (Minn. Ct. App. 2001).
22 See LeeJoice v. Harris, 404 N.W.2d 4, 5 (Minn. Ct. App. 1987) (where rule was confirmed though not applied).
23 Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. Ct. App. 1990).
24 Holz-Kinney v. Thaler, 2009 WL 4040789 (Minn. Ct. App. 2009).
25 377 N.W.2d 56, 56 -57 (Minn. Ct. App. 1985).
26 Ronning v. Nikolai, 2001 WL 799681 (Minn. Ct. App. 2001).
27 Schwarz v. Finseth, 2009 WL 4910552 (Minn. Ct. App. 2009).
28 Application of Stein, 99 N.W.2d 204 (
29 Fredericksen v. Henke, 209 N.W.257 (
30 Nygren v. Patrin, 179 N.W.2d 76 (
31 Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn. Ct. App. 1993). See also, Holiday House II, LLC v. State, 2009 WL 1587090, 1 (Minn. Ct. App. 2009).
32 Ebenhoh v. Hodgman, 642 N.W.2d 104, 109 (Minn. Ct. App. 2002). Also, Ronning v. Nikolai, 2001 WL 799681, 3 (Minn. Ct. App. 2001).
33 Mauer v. Otter Tail Power Co. 2009 WL 2225820, 2 (Minn. Ct. App. 2009).
34 Olson v. Burk, 103 N.W. 335 (
35 Siegel v. Nagel 2008 WL 668131, 2 (Minn. Ct. App. 2008). Likewise, a lease defeated a claim in Sage v. Rudnick, 69 N.W. 1096 (
36 2009 WL 174211 (Minn. Ct. App. 2009).
37 Hanson v. Sommers, 117 N.W. 842, 843 (
38 Norgong v. Whitehead, 31 N.W.2d 267 (
39 Norgong v. Whitehead, supra. See also Boldt v. Roth, 618 N.W.2d 393, 397 (
41 Scofield v. Schaeffer, 116 N.W. 210 (
42 Junes v. Junes, 196 N.W. 806 (1924).
43 Magnuson v. City of
44 Rein v. Town of
45 Williams v. Lynd Tp., 312 N.W.2d. 110, 113 (
49 2002 WL 1163559, 2 (Minn. Ct. App. 2002).
50 Meixner v. Buecksler, 13 N.W.2d 754, 757 (
51 Johnson v. Jensen, 433 N.W.2d 472, 476 (Minn. Ct. App. 1988).
52 756 N.W.2d 725 (Minn. Ct. App. 2008).
53 Juntti v. Bedore, 2010 WL 3306932, 4 (Minn. Ct. App. 2010).
54 Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. Ct. App. 1990).
55 Vill. of
56 2000 WL 369504, 2 (Minn. Ct. App. 2000).
57 Roberge v. Cambridge Co-Op. Creamery Co., 67 N.W.2d 400, 403 (
58 2001 WL 1035039, 2 (Minn. Ct. App. 2001).
59 Kaukola v. Menelli, 2009 WL 1374172, 2 (Minn. Ct. App. 2009).
60 Juntti v. Bedore, 2010 WL 3306932, 2 (Minn. Ct. App. 2010).
61 Kaukola v. Menelli 2009 WL 1374172, 4 (Minn. Ct. App. 2009).
62 Skelton v. Doble, 347 N.W.2d 81 (Minn. Ct. App. 1984); Ampe v. Lutgen, 2007 WL 2034381, 2 (Minn. Ct. App. 2007).
63 9 N.W.2d 421, 427 (
65 See Nadeau v. Johnson, 147 N.W. 241, 242 (Minn. 1914)(finding existence of boundary line by practical location based on express agreement, when landowners measured, located, and staked boundary line, expressly agreed on dividing line between lots, and treated line as boundary for 10 years). See also Ampe v. Lutgen, 2007 WL 2034381, 2 (Minn. Ct. App. 2007); Amato v. Haraden, 159 N.W.2d 907, 910 (
66 Slindee v. Fritch Investments, LLC, 760 N.W.2d 903, 909 (Minn. Ct. App. 2009).
67 Kaukola v. Menelli, 2009 WL 1374172, 3 (Minn. Ct. App. 2009).
69 Halverson v.
70 Pomphrey v. State ex rel.