RE: Litigation, February 2010

02/05/2010 / Real Estate Litigation Practice Group








Should You Appeal Your Property Tax Assessment?
For some commonly asked questions and answers in deciding if your property has been accurately assessed and what options can be pursued if you feel your property tax is too high click here.

Recent Changes in Minnesota Law Seek to Battle The Effects of The Foreclosure Crisis
By Jessica B. Rivas
Abandoned, empty properties across the state of Minnesota have spurred a change in the Minnesota Foreclosure Laws.  Changes affect homeowners who may now have the option to postpone foreclosure sales, lenders who are now required to protect vacant property and cities which are now able to secure abandoned buildings and reduce the redemption period.  Continue

Mechanic's Lien Case Law Update
By Rob A. Stefonowicz

The Minnesota Court of Appeals recently decided two matters with implications on mechanic’s lien foreclosure procedures.  The first case involves lien apportionment.  In this matter, a lienholder filed a blanket mechanic’s lien on a 41-acre residential development, but then sought to foreclose its entire lien against only three of the lots in the development.  The court of appeals held that under certain limited circumstances such a practice is permissible.  The Minnesota Supreme Court has granted review of this matter.  In the second matter summarized below, the court of appeals took up the issue of “actual notice” of prior lien interests for determining lien priority.  Please note that this matter may also be subject to review by the Minnesota Supreme Court.  Continue 

Is a Home Mortgage Enforceable if Only One Spouse Has Signed It?
By Gary A. Van Cleve
Can a home mortgage be enforced if only one spouse signed it?  The answer is, “it depends,” according to two recent decisions by the Minnesota Court of Appeals.  Continue

Interest rate increase on large civil judgments

Effective August 1, 2009, the interest rate on judgments greater than $50,000 entered in Minnesota courts will increase from 4 percent to 10 percent.  Previously, the judgment interest rate was adjusted annually pursuant to statute directing that the rate be tied to the one-year constant maturity treasury yield reported by the Federal Reserve, or 4 percent, whichever is greater.  For 2008 and 2009, the judgment interest rate has been 4 percent.  The apparent reason for the interest rate increase to 10 percent for judgments over $50,000 is to discourage appeals brought for purposes of delay by parties that could earn interest in the marketplace higher than the judgment rate during the appeal—effectively “buying down” the value of the judgment.  NOTE:  the interest rate on condemnation awards continues to be controlled by the constitutional principle of “just compensation”; accordingly, a property owner securing a condemnation award continues to have the right to request a greater interest rate from the court (even greater than 10 percent) if the property owner is able to show that the statutory interest rate does not provide “what a reasonable and prudent investor would have earned while investing so as to maximize the rate of return, yet guarantee safety of principle.”  State by Humphrey v. Jim Lupient Oldsmobile Co., 509 N.W.2d 361, 364 (Minn. 1993).


Recently Published Articles

Michael Mergens authored several articles over the last year in the Minnesota Real Estate Journal on the current trends in environmental law, notably those relating to the regulation of greenhouse gas emissions in light of recent U.S. Supreme Court action and how it can affect a business’s bottom line if it does not comply with regulations. 

Michael Mergens also wrote an article analyzing how abandoning climate change regulation is bad for business in the September 2009 issue of Finance and Commerce.  To read the article, click here.

A Minnesota Supreme Court case handled by Gary Van Cleve and Michael Mergens was highlighted and discussed in the September/October issue of Probate and Property magazine.  This matter dealt with the difficult issue of condemnation awards in the event of a lease termination. 

Recent Success

A member of a limited liability company sought Larkin Hoffman’s representation for breach of fiduciary duty claim against another joint member of the company.  The claim alleged that the member mismanaged the purchase and development of a commercial property.  Attorney Tamara O'Neill Moreland obtained a judgment for her client in excess of $800,000.

Gary Van Cleve and Rob Stefonowicz were awarded nearly $160,000 in costs in a case against the City of Rochester, where their client successfully overturned a nearly $2 million special assessment levy in 2008.  The costs included all expert witness fees incurred by the client, which represented $147,000 of the costs claimed and awarded.

Tamara O’Neill Moreland was elected to the Board of Directors of the March of Dimes – Minnesota Chapter and will serve as chapter legal counsel.

Jessica Rivas received a favorable decision from the Minnesota Court of Appeals in an easement dispute.  The court affirmed that her clients’ driveway easement and utility easement were valid and express easements as well as confirmed the award of sanctions against the opposing counsel for bringing such a frivolous action.

Tamara O'Neill Moreland represented a client/seller when the purchaser, who refused to close on a purchase agreement, brought a motion for temporary injunction to prevent the statutory cancellation of the agreement.  She was successful in defeating the motion and successful in obtaining an affirmation of the decision from the Minnesota Court of Appeals.

Rob Stefonowicz effectively represented an 87-year old pro-bono client involved in a contracting dispute through the Volunteer Lawyers Network.  The VLN is a nonprofit organization that connects low-income individuals with attorneys who donate their time, skills and resources to providing free civil legal services.

Jessica Rivas successfully appealed a boundary dispute case that has been ongoing for more than 20 years by obtaining a reversal of the district court’s decision and remand back to the district court to ensure that a surveyor drafts the legal descriptions of the boundaries, rather than the court.

A wireless communications provider, which needed to take action to prevent a landlord from terminating a rooftop lease, contacted Larkin Hoffman for representation on the case.  Tamara O'Neill Moreland reached a settlement agreement with the landlord and prevented the landlord from recovering damages under the settlement agreement.  She also represented the provider at the Court of Appeals and the Minnesota Supreme Court.  Tamara O’Neill Moreland was again successful defending a second appeal by the landlord with the Court of Appeals affirming the judge’s refusal to award damages.

Tamara O'Neill Moreland, Jessica Rivas and Michael Mergens were named to the list of Rising Stars® in the December issue of Minnesota Law & Politics.  Only 2.5 percent of attorneys in Minnesota are listed as Rising Stars.

Gary Van Cleve was named a 2009 SuperLawyer® by Minnesota Law & Politics for the fifth consecutive year.

Tamara O’Neill Moreland represented a liquor store owner at the Minnesota Court of Appeals and successfully defended a suit initiated by a competing liquor store to redefine the zoning ordinance of the city and repeal the grant of a liquor license to her client.  The Court of Appeals affirmed the license approval.

In a residential property fraud case, Tamara O'Neill Moreland represented homeowners in arbitration to establish that the seller made a material misrepresentation on the Seller’s Disclosure Form.  Even though the home sale occurred 14 years earlier, an arbitrator declared that the seller had committed fraud.  Damages were awarded to the homeowners.


James Susag presented at a CLE offered through National Business Institute entitled “Advanced Expert Witnesses Deposition Tactics”.  His presentation focused on using expert depositions at trial, concentrating on video depositions, refreshing witness recollection, impeachment and admissions, introducing part of a deposition at trial and using the deposition as substantive evidence.

On December 9, despite blizzard conditions, Rob Stefonowicz and Jessica Rivas gave a well-attended, well-received presentation on Mechanic’s Liens at the Builders Association of Minnesota Symposium.

Rob Stefonowicz was featured as part of an attorney panel that addressed “Hot Legal Topics” at the 3rd Annual Builders Convention on January 9 in St. Cloud.

Our Practice

The Larkin Hoffman Real Estate Litigation practice group combines experience in real estate, land use, construction and environmental matters with expertise in litigation, dispute resolution and appellate advocacy. Specialty areas include eminent domain actions; property tax assessment and special assessment appeals; landlord-tenant disputes; and liens and mortgages.

The Real Estate Litigation team handles any dispute concerning the ownership, improvements, dimensions, use or value of real estate. Our experienced trial lawyers represent property owners, buyers, sellers, lenders, landlords, tenants and business entities in a wide variety of real estate disputes. These disputes include boundary and easement disputes, condemnation and eminent domain, construction and design defects, environmental disputes, foreclosures, green/sustainable development disputes, land use disputes, landlord-tenant disputes, liens, property tax appeals, special assessments, transactional disputes and telecommunications, as well as other disputed matters related to or involving real property. 

Contact Our Real Estate Litigation Group

Gary A. Van Cleve, Chair
Email 952-896-3277 

Michael J. Mergens
Email 952-896-3297

Julie N. Nagorski
Email 952-896-1525

Tamara O'Neill Moreland
Email 952-896-6711

Jessica B. Rivas
Email 952-896-3384

Rob A. Stefonowicz
Email 952-896-3254

James M. Susag
Email 952-896-1572

Erin A. Carlson, Paralegal
Email 952-896-3317

This alert is provided as a service to our clients and firm associates. While the information provided in this publication is believed to be accurate, it is general in nature and should not be construed as legal advice.