No. ___________

_________________________________

IN THE SUPREME COURT OF THE UNITED STATES

______________________ _

Marvin Pirila & Gail Francette,

Petitioners,

Thomson Township Et al.

Respondents.

_______________________

On Petition For A Writ Of Certiorari

To The United States Supreme Court

_______________________

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

VOLUME 6

_______________________

Marvin Pirila & Gail Francette

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

Counsel, Pro Se for Petitioner

TABLE OF CONTENTS
Page

APPENDIX A: Decision of State Supreme Court Denying Review (Oct. 26, 2011)............................1-a

APPENDIX B: Decision of State Court of Appeals (August 22, 2011) /Appellant's Brief...................11-a

APPENDIX C: Decision of State Trial Court (Dec. 29, 2011) /Plaintiffs' Memorandum of Law in Opposition to Summary Judgment.....................98-a

APPENDIX D: Minnesota Data Practices Act; Relevant portions of Record...............................221-a

APPENDIX E: Minnesota Department of Labor and Industry Findings.......................................234-a

APPENDIX F: Constitutional and Statutory Provisions Involved............................................244-a

APPENDIX G: Trespassing/Harassment Complaint...........................................................252-a

APPENDIX H: Transcript of Proceedings – State Trial Court..........................................................283-a

APPENDIX I: Motion to Dismiss Summary Judgment............................................................321-a

APPENDIX J: Relevant Documents................342-a

APPENDIX K: Complaint (March 16, 2010)...347-a

APPENDIX L: Notice of Claim (Jan. 6, 2010).375-a

APPENDIX M: The Constitutionality of the MGDPA and Statute 466.02 Clarification........412-a

APPENDIX A

Decision of State Supreme Court of minnesota Denying Review of petition

STATE OF MINNESOTA

IN SUPREME COURT

A11-0276

marvin Pirila,

Petitioner,

Gail Francette,

Plaintiff,

vs.

Duane Grace,

Respondent,

John Gulland, et al.,

Respondents.

ORDER

Based upon all the files, records, and proceedings herein.

IT IS HEREBY ORDERED that the petition of Marvin Pirila for further review be, and the same is, denied.

Dated: October 26, 2011

BY THE COURT:

_/s/Lorie S. Gildea_________

Lorie S. Gildea

Chief Justice

APPELLATE COURT CASE NUMBER A11276

STATE OF MINNESOTA

IN COURT OF APPEALS

CIVIL SUIT

Petitioners, Marvin Pirila & Gail Francette

PETITION FOR REVIEW

DECISION OF COURT OF

APPEALS

vs.

APPELLATE COURT

CASE NUMBER: A11-276

Respondents, Thomson Township, Thomson Township

Fire Department, John Gulland, Duane Grace, Jeffrey Juntunen

DATE OF FILING OF COURT OF APPEALS

DECISION: 8/22/11

TO: The Supreme Court of the State of Minnesota

The petitioners Marvin Pirila and Gail Francette requests Supreme Court review of the above-entitled decision of the Court of Appeals on the following grounds.

1. Statement of legal issues [A-572 - A-605] and their resolution by the Court of Appeals

Legal Issue #1: Did defendants fail to perform the ministerial and operational (day-to-day) duties entrusted them [A-572 -581]: Appellate Court did not address.

Legal Issue #2: Did Defendants commit trespass? [A-581-587] Appellate Court did not address.

Legal Issue #3: Did Defendants have a duty to Appellants? [A-63-67, 587-593] Appellate Court did not address.

Legal Issue #4: Do the personal injury requirements of duty, breach, causation, and harm exist? [A-593 - A-595] Appellate Court did not address.

Legal Issues #5-8: Do applicable exceptions void claims of official, vicarious official, statutory, and qualified immunities? [A-595 - A-600] Appellate Court affirmed immunity applied, without addressing statutory exceptions.

Legal Issue #9: Are defendants guilty of gross negligence? [A-600-603] Appellate Court did not address.

Legal Issue #10: Summary judgment proceedings did not address claims of Deliberate Indifference, Section 1983, Section 1985, Tortious Interference, Fraud, Fourth Amendment, Fifth Amendment, Fourteenth Amendment. Appellate Court did not address. [A-603 - A-605]

2. Statement of the criteria relied upon to support the petition

The Minnesota Dept. of Labor & Industry censured [A-5 - A-9] the building inspector (file # 09.1244) stating, “… the Department has concluded that you engaged in the following violations of the statutes and rules that govern duties of a Minnesota certified building official: Minn. Stat. § 326B.133, subd. 4; Minn. R. 1305.903.2.7; Minn. R. 7676.1400; Minn. R. 1311; Minn. R. 1300.0110, Minn. R. 1300.0110, subp.3 and subp. 4 [A-7]. The MN DOLI also concluded that Defendant Gulland "did not maintain administrative control over this project, thus allowing others to dictate code compliance. This resulted in confusion and/or delays.

The application of the “immunity” defense in this case by the District Court and Appellate Courts implied there was a cloak of “sovereign and absolute immunity” to all duties of a local government official. The lower courts failed to consider the numerous exceptions to immunity that applied in this matter, leaving the impression that individuals are at the complete mercy of government officials. This interpretation contrasts sharply with the Minnesota Constitution Bill of Rights, Article 1 and 8, guaranteeing rights to the people, and specifically individuals. The public good is not served by protecting those that refuse or neglect to perform their most basic duties, ministerial and operational level in nature. The clarification of these exceptions, and possible consequences, would serve all citizens of this state that work with government officials. The award of immunity should only come through good faith efforts, and the strict adherence to ministerial and day-to-day (operational level) duties. The lower courts dismissed charges of trespassing/entry without consent under the defense of immunity.

3. Statement of the case

Petitioners bought the property at 1 N Cloquet Rd W in Esko, MN, from Thomson Township in 2006. Petitioners allege that respondents maliciously and willfully neglected their ministerial and operational (day-to-day) duties in overseeing the applicable building codes and ensuing building permits. Additionally, Petitioners claim defendants performed their discretionary duties with malice, gross negligence, and lack of good faith.

Respondents had operated out of this same building for 13 years, yet determined once sold that it was a new construction and not a rehab project under the Guidelines for the Rehabilitation of Existing Buildings (GREB) (Minn. R. 1311). Once requested, as it was by petitioners, GREB's use is mandatory [A-5]. Nonetheless, respondents refused to follow GREB and demanded building codes that were far more expensive to follow.

The Minnesota Dept. of Labor & Industry was involved twice in an effort to get the project moving. The MN DOLI investigation that ensued resulted in retaliation by building inspector John Gulland. The MN DOLI had to intervene to stop this retaliation [A-83 - A-84]. Both the building inspector and fire chief in question both trespassed and currently being investigated by the Carlton County attorney.

Summary Judgment was granted at District Court and affirmed at the Appellate Court based on claims of immunity, without due consideration of exceptions that applied.

4. A brief argument in support of petition

Minnesota Statutes and Rules include exceptions where immunity is lost, specifically in cases of bad faith and the failure to follow ministerial duties. “Sovereign Immunity” is being enforced under the guise of other immunity defenses. The blanket “immunity” that is applied to cases such as this is unconstitutional as it fails to protect any rights of individuals subjected to abuses. Exceptions to immunity were intended to provide recourse to individuals and protect them from such abuses that petitioners endured (trespassing, bad faith, retaliation, intentional delays, failure to complete on-site inspection cards, failure to keep records of inspections at the township, failure to put orders in writing). Petitioners routinely requested orders in writing to avoid the resulting ambiguity only to see their requests ignored. If this is the best one can expect of building code administrators and expert plan reviewers, what should one expect of those they oversee and/or mentor? One should be able to expect a basic framework from which everyone operates. Minus this framework, there is too much power left in the hands of some unscrupulous and malicious individuals. This individual in turn decides whether or not the project will succeed or fail, based on his or her own objectives. Without the proper checks and balances, injustice is inevitable, and when it is without recourse, unconstitutional.

Constitutionally, can a statute stand that has no backbone? As stated in Mitchell v. Forsyth, “where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate. . . . " Id. at 457 U. S. 819 (emphasis added). Statutes and rules without “true” meaning or possible punishment embolden, not hinder deviant behavior. In petitioners’ case, not only did defendants know they were deviating from established and/or expected norms; they did so with no hesitation or worry of consequences. This became highly apparent by the trespassing and forced inspections that took place during the ongoing investigation by the MN DOLI. The defendants knew the legal system allowed them extraordinary latitude and they simply did what they wanted, caring less about doing it professionally or ethically.

The Supreme Court is the right authority to determine whether there is going to be a continuance of this enormous latitude, striking all exceptions, or to rule in favor of “limited” immunity. The responsibility of all workers, both private and government, is to follow the basic rules (ministerial duties) of their positions. The law needs to clarify what truly constitutes an exception to immunity as this has statewide implications. A clarification is needed as to what “consent to entry” consists of for building inspectors and fire chiefs. In petitioners’ case, entry was made with no notification, or emergency need. They made no attempt before or during the entry to justify themselves. These were illegal searches, done by local government officials, who hang their hat on the defense of immunity. These searches were clear violations of the 4^th Amendment and Constitution of the State of Minnesota.

Minnesota Statutes and Rules were not intended to grant government employees “absolute” immunity, but to hold them responsible for ministerial and operational level duties. Although immunity is granted in most discretionary functions, it is lost when malice or bad faith is established. Article 1, Bill of Rights (MN) Section 1, includes, “…Government is instituted for the security, benefit and protection of the people…” Section 8: “…Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character…”

The constitutionality of the Data Practices Act is at question as well. In this matter, the township failed to answer several requests for information, because the Data Practices Act does not apply to them [A-184 - A-186]. Thomson Township withheld information that may have helped with this case because there is no accountability for failing to do so.

For these reasons, the petitioner seeks an order granting review of the decision of the Court of Appeals.

DATED: September 6, 2011

/s Marvin Pirila

PIRILA & FRANCETTE

By Marvin Pirila

Pro Se - Appellant

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

APPENDIX B

_____________ _

Decision of State OF MINNESOTA

Court of Appeals/Appellant's Brief

_____________ _

A11-276

____________________________

table of contents

Page

Decision of State Court of Appeals………11-a

Appellant’s Brief……………………………18-a

this opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2010).

STATE OF MINNESOTA

IN COURT OF APPEALS

A11-276

Marvin Pirila,

Appellant,

Gail Francette,

Plaintiff,

vs.

Duane Grace,

Respondent,

John Gulland, et al.,

Respondents.

Filed August 22, 2011

Affirmed

Worke, Judge

Carlton County District Court

File No. 09-CV-10-934

Marvin Pirila (pro se appellant)

Steven L. Reyelts, Tracy A. Ward, Reyelts Bateman & Schramm, PLLC, Duluth, Minnesota (for respondent Duane Grace)

Paul D. Reuvers, Stephanie A. Angolkar, Iverson Reuvers, Bloomington, Minnesota (for respondents John Gulland, et. al.)

Considered and decided by Worke, Presiding Judge; Wright, Judge; and Willis, Judge.*

UNPUBLISHED OPINION

WORKE, Judge

Appellant challenges the district court's grant of summary judgment, arguing that the district court erred by according respondents immunity as municipal authorities acting within their official capacities. We affirm.

DECISION

Appellant Marvin Pirila challenges the district court's grant of summary judgment in favor of respondents Thomson Township, John Gulland, Duane Grace, and Jeffrey Juntunen. When reviewing a grant of summary judgment, this court determines whether there are genuine issues of

_____________________________
* Retired judge of the Minnesota Court of Appeals, French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment is appropriately granted when "the pleadings, depositions, answers to interrogatories, serving by appointment pursuant to Minn. Const. art. VI, § 10.

material fact and whether the district court erred in its application of the law. State by Cooper v. and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citing Minn. R. Civ. P. 56.03). "We view the evidence in the light most favorable to the party against whom summary judgment was granted." STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). Whether a genuine issue of material fact exists and whether the district court erred in its application of the law are reviewed de novo. Id. at 77.

In cases involving municipalities, summary judgment is appropriate when a governmental entity has established that its actions are immune from civil liability. Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995). A municipality may be liable for torts committed by municipal officials, subject to certain exceptions. Minn. Stat. § 466.02 (2010). One such exception exists for claims "based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03, subd. 6 (2010). A "discretionary act," for the purposes of official immunity, is an act involving "the exercise of individual judgment in carrying out [] official [] duties." Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). Whether government immunity exists is a question of law, which this court reviews de novo. Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004).

Appellant purchased a municipal building in Thomson Township, intending to remodel it into a mixed commercial and residential property. The project halted when appellant failed to obtain the requisite building permits and certificates of occupancy. Appellant commenced this action against respondents, which the district court dismiss on the ground that respondents are entitled to municipal immunity. Appellant first argues that the district court erred by granting Gulland, the township's building official, immunity because he incorrectly interpreted the Minnesota building code throughout the renovation process. But even if Gulland erred in interpreting the building code, as appellant alleges, such an error would have occurred within his discretionary role as a municipal official. See Anderson v. City of Minneapolis, 287 Minn. 287, 288, 178 N.W.2d 215, 217 (1970) (concluding that a city employee's oversight of a zoning ordinance was within the discretionary function of his permit-granting role and, therefore, entitled to immunity). The district court did not err by granting statutory immunity to Gulland.

Appellant also asserts that Grace, a building- and fire-code consultant, was not entitled to statutory immunity, arguing that Grace should have advocated for the use of an alternative building code earlier in the planning process. Grace was hired by Thomson Township and, therefore, was also acting in an official capacity on behalf of a municipality. Thus, like Gulland, Grace is protected by municipal immunity. See id., 178 N.W.2d at 217. The district court did not err by granting statutory immunity to Grace.

Appellant also challenges the district court's extension of statutory immunity to Juntunen, the township's fire chief, arguing that Juntunen engaged in unprotected municipal conduct by instructing the township's fire department not to enter the building if there was a fire. But the record indicates that Juntunen believed that the roof of the building would collapse if the building caught fire, and Juntunen also expressed concern over the various fire hazards on the property. "Choice of the use of police and fire manpower involves the use of discretion and falls squarely within the statutory exception from liability expressed in subd. 6 of [section] 466.03." Silver v. City of Minneapolis, 284 Minn. 266, 271, 170 N.W.2d 206, 209 (1969). Assuming that Juntunen instructed the fire department not to enter the building in the event of a fire, such an instruction would be entitled to immunity as a discretionary function. See Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. 1979) (stating that statutory immunity applies to municipal employee "whose policy-making duties include choosing between various alternatives, even if one of the alternatives is to do nothing"). The district court did not err by granting statutory immunity to Juntunen.

Because Gulland, Grace, and Juntunen were all entitled to statutory immunity, Thomson Township cannot be held liable for the actions of these officials. See Wiederhold v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (stating that vicarious immunity "protects the governmental entity from suit based on the official immunity of its employee"); Watson by Hanson v. Metro. Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996) (stating that a municipality is not liable for the torts of its officials when immunity protects the official from personal liability). The district court did not error by granting summary judgment in favor of respondents and dismissing appellant's claims. Because we conclude that the district court did not err by granting summary judgment on the grounds of statutory immunity, we do not reach appellant's official-immunity argument. See Winkler v. Magnuson, 539 N.W.2d 821, 827 (Minn. App. 1995) (stating that we may affirm summary judgment if it can be sustained on any ground), review denied (Minn. Feb. 13, 1996).

Affirmed.
APPELLATE COURT CASE NUMBER A11276

STATE OF MINNESOTA

IN COURT OF APPEALS

Respondents: Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, Jeffrey Juntunen

vs. Trial Court Case No.: 09-CV-10-0934

Appellants, Marvin Pirila & Gail Francette

APPELLANT'S BRIEF

PIRILA & FRANCETTE by Marvin Pirila

Pro Se - Appellants

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

STEPHANIE ANGOLKAR

Attorney for Respondents,

Thomson Township, Thomson Township Fire Department, John Gulland, Jeffrey Juntunen
Iverson Reuvers, 9321 Ensign Ave South

Bloomington, MN 55438

Steven Reyelts

Attorney for Respondent Duane Grace

Reyelts, Bateman & Schramm, LTD

332 West Superior Street, Suite 700

Duluth, MN 55802-1801

TABLE OF CONTENTS

Page

Table of Authorities…….............……………………............3-5

Legal Issues…………………………………………6-10

Statement of Facts………………………………..11-26

Argument

1. Did defendants fail to perform their ministerial and operational (day-to-day) duties?.....................................................26-35

2. Did Defendants commit trespass? .........35-41

3. Did Defendants have a breach of duty to Appellants...............................................41-47

4. Did personal injury occur due to this breach? .…………………………………….............47-49

5. Do applicable exceptions void claims of official immunity?…………….................49-51

6. Do applicable exceptions void claims of vicarious official immunity?…...................51

7. Do applicable exceptions void claims of statutory immunity?..………………......................51-53

8. Did exceptions exist to nullify qualified immunity? ..…………….........................53-54

9. Are defendants guilty of gross negligence? ….............................................................54-57

10. Summary judgment order did not address claims of Deliberate Indifference, Section 1983, Section 1985, Tortious Interference, Fraud, Fourth Amendment, Fifth Amendment, Fourteenth Amendment. ..………………………….…......................57-59

11. Conclusion……………..………………......59-63

Appendix and Index………………………………64-65
TABLE OF AUTHORITIES

Statutes

Data Practices Act………….………………...…..17-18

Minnesota State Adoption Guide……….………….41

Minn. Stat. § 3.736 Tort Claims.......................10, 54

Minn. Stat. § 16B.65...............................................18

Minn. Stat. § 299F.08, Subd. 1………..…….7, 32, 39

Minn. Stat. § 299F.09......………….………...7, 32, 39

Minn. Stat. § 326B.082...........................................30

Minn. Stat. § 326B.082, Subd. 7 ............................30

Minn. Stat. § 326B.082, Subd. 11 (7)..…….……7, 48

Minn. Stat. § 326B.106………………………………..6

Minn. Stat. § 326B.106, Subd. 2…………………....29

Minn. Stat. § 326B.133, subd. 4…….6, 12, 26-27, 29

Minn. Stat. § 466.02……………………………..33, 55

Minn. Stat. § 466.03, subd. 6 (2008)…………………9

Minn. Stat. § 466.03, Subd. 5, 8, and 10................55

Minn. Stat. § 586.09……………………………….9, 53

Minn. Stat. § 609.605, Subd. 1 (2007)...……7, 32, 38

Minn. Stat. § 609.605, Subd. 4 (2007)...………32, 38

Minn. Stat. § 609.605, Subd. 9 (2007)...………32, 38

Minn. Stat. § 609.749, Subd. 1 (1) and (2), Subd. 2, Subd. 5.................………………………......…7, 32, 40

Minn. Stat. § 626.556 Subd. 4, Section (c), Subd. 5

.........................................................................……..50

Minn. Stat. § 645.16 (2008)…………………...7, 9, 39

Minn. Stat. § 645.19 (2008)………………………....56

Minn. R. 1300.0070 Subp. 24.................................29

Minn. R. 1300.0110………………………….12, 27, 29

Minn. R. 1300.0110, subp.3…….………………..6, 10

Minn. R. 1300.0110, subp. 4…………………6, 10, 29

Minn. R. 1300.0110 Subp. 5………………………...30

Minn. R. 1300.0110, Subp 7…..7, 9-10, 32, 35-36, 54

Minn. R. 1300.0110, Subp. 8………....……….…….31

Minn. R. 1300.0110, Subp. 9……………..8-10, 50, 54

Minn. Stat. § 1300.0210 Subp. 3 & 5………….16, 30

Minn. Stat. § 1300.0210 Subp. 6……………………..7

Minn. R. 1300.0210, Subp. 4……………….21, 32, 37

Minn. R. 1305.903.2.7….……………………..…..6, 12

Minn. R. 1311.0010 (GREB)…………………6, 12, 15

Minn. R. 7676.1400……………………….6, 12, 15, 21

MSBC (Chapter 1322) – Residential Energy Code, Section 1322.1101 IRC Section N 1101, General N1101.1, Exceptions 3 and 4..………………….15, 27

Section 1004.1 (Occupancy Load)...………………..16

2003 International Existing Building Code…..14-15

2006 International Building Code……………..14, 28

2007 State of Minnesota Building Code (MSBC)

.......................................................................14-15, 27

Public Duty Doctrine....……………………………...17

Cases

Anderson v. City of Minneapolis, 287 Minn. 287, 289, 178 N.W.2d, 215, 217, (1970)…………............33

Berkovitz v. U.S., 486 U.S. 531, 536 ('88)………6, 35

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989)

............................................................................10, 58

Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84)…..9, 57

Copeland v. Hubbard Broadcasting, Inc. 526 N.W.2d 405 (Minn. App. 1995)………..…..….....6, 40

Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806, 807 (Minn. 1979)……………..................7, 42, 46

Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. Appl. 1997), review denied (Minn. May 20, 1997)...…..............................................................6, 34

DLH, Inc. v. Russ, 566 N.W.2d 60,69 (Minn. 1997)

...........................................................................……61

Fahrendorff v. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999)………………………….....................8, 51

Gilbert v. Billman Constr., Inc. 371 N.W.2d 542, 546-47 (Minn. 1985)………………………..............…8

Gonzales v. Hollins, 386 N.W.2d 842, 845 (Minn. App. 1986)..............................………………….……42

Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002)………….............6, 9, 35

Harlow v. Fitzgerald, 457 U.S. 800 (1982)…….9, 53

Johnson v. Callisto, 287 Minn. 61, 176 N.W.2d 754 (1970)....................………………………………….8, 50

Kenyatta v. Moore, 744 F.2d 1179, 1185-1186 (CA5 1984).....................…………………………………….63

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)....9, 54

Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH)………………………….................6, 38

Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 823 (1982)...........…………………………....................9, 53

Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986)…………................................7, 10, 40, 59

Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants. , State of Minnesota in Court of Appeals, A08-1580 (August 11, 2009).......... ...................................……………………..8, 10, 52, 56

Pletan v. Gaines, 494 N.W.2d 38, 50 (Minn. Dec. 31, 1992)......................…………………………………8, 51

Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997)

.................................................................................60

Rico v. State, 472 N@2d 100, 107 (Minn. 1991)..8,49

Rieger v Zackorski, 321 N.W.2d 16, 20 (Minn. 1982)

...........................................................................6-7, 47

Smith v. Wade 461 U.S. 30, 56, 75 L. Ed. 2d. 632, 103 Sup. Ct. 1625 (1983)………….......................9, 56

Spring Lake Park, 580 N.W.2d at 23………………52

State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570-571 (Minn. 1994)….................8, 49

Susla v. State, supra, 247 N.W.2d at 912………8, 49

Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1988).………….....................................7, 43

U.S. v. Gaubert, 499 U.S. 315, 322 ('91)………..6, 35

Universal Circuits, Inc., et al., v. City of Maple Grove, (Minn. 1996)……….........................………..51

Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 554 (Minn. App. 2003)…………………................7, 47

Secondary Authorities

42 U.S.C. § 1985…………………..…………………10

Constitution of the State of Minnesota, Article 1^st Bill of Rights, Section 10………………...............7, 38

Fed. R. Civ. P. 56(c)…………………………………..62

Federal Torts Claims Act……………………….10, 56

Fifth Amendment………………………..……….10, 58

Fourth Amendment.…………………………10, 32, 58
Fourteenth Amendment…………………………10, 58

MTLA…………………………………………………..56

Section 1983, 42 U.S.C. Section 1983, Civil Rights Act of 1871; ………………..................7, 10, 45, 58-59

LEGAL ISSUES

I. Legal Issue #1: Did defendants fail to perform the ministerial and operational (day-to-day)

Trial court held: Court ruled that duties were discretionary.

Preserved for Appeal: Oral argument (transcript) [13:25, 14-20, 21:1-10, 22:24-25, 23-26, 27:1-24, 26:, 27:1-21]:, exhibits, and written record [A-1, A-3 -5, A-24 - A-26, A-66 - A-69, A-121, A-167 - A-168. A-232, A-238, A-242 - A-243, A-246, A-256 - A-257, A-259, A-262, A-265].

Supporting Cases: Berkovitz v. U.S., 486 U.S. 531, 536 ('88). U.S. v. Gaubert, 499 U.S. 315, 322 ('91). Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997). Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002).

Constitutional and Statutory Provisions: Minn. Stat. § 326B.133, subd. 4; Minn. Stat. 326B.106; Minn. R. 1305.903.2.7; Minn. R. 7676.1400; Minn. R. 1311; Minn. R. 1300.0110, subp.3 and 4.

II. Legal Issue #2: Did Defendants commit trespass?

Trial court held: Did not rule officially, but inferred that if further criminal activity, like sexual abuse, in addition to the trespass occurred there would be cause for action.

Preserved for Appeal: Oral argument (transcript) [10:3-22, 11-13, 21:6-25, 22, 25:7-25, 27: 24-25, 28: 1,29:1-8, 35:8-25, 36-38, 39:1-5], exhibits, and written record [A-223, A-51, A-53 -A-54, A-56 - A-57, A-63 - A-67, A-81 - A-82, A-86, A-120, A-218, A-261].

Supporting Cases: Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH); Copeland v. Hubbard Broadcasting, Inc. 526 N.W.2d 405 (Minn. App. 1995); Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn.1982); Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986).

Constitutional and Statutory Provisions: Minn. R. 1300.0110, Subp 7; Minn. R. 1300.0210, Subp. 4 & 6; Constitution of the State of Minnesota, Article 1^st Bill of Rights, Section 10; Minn. Statute 609.605, Subd. 1 (2007); Minn. Stat. ¶ 299F.09; Minn. Stat. 299F.08, Subd. 1; Minn. Statute § 609.749, Subd. 1, 2, and 5; Minn. Stat. § 326B.082, Subd. 11 (7); Minn. Stat. § 645.16 (2008)

III. Legal Issue #3: Did Defendants have a duty to Appellants?
Trial court held: Did not rule.

Preserved for Appeal: Oral argument, exhibits, and written record [A-20 - A-21, A- 9, A-87, A- 23].

Supporting Cases: Section 1983, 42 U.S.C. Section 1983, Civil Rights Act of 1871; Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806, 807 (Minn. 1979); Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 554 (Minn. App. 2003); Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1988)

Constitutional and Statutory Provisions: Minn. Stat. § 326B.082, Subd. 11 (7)

IV. Legal Issue #4: Do the personal injury requirements of duty, breach, causation, and harm exist?

Trial court held: The court did not rule.

Preserved for Appeal: Oral arguments, exhibits, and written record [A-2, A-4 - A-5, A-71].

Supporting Cases: Rieger v Zackorski, 321 N.W.2d 16, 20 (Minn. 1982)

Constitutional and Statutory Provision: Minn. Stat. § 326B.082, Subd. 11 (7).

V. Legal Issue #5: Do applicable exceptions void claims of official immunity?

Trial court held: Defendants were entitled to official immunity.

Preserved for Appeal: Oral argument, exhibits, and written record [A-3 - A-4, A-47 - A-48, A-67].

Supporting Cases: Susla v. State, supra, 247 N.W.2d at 677, 912. State by Beaulieu v. City of Moundsview, 518 N.W.2d 567, 570-71 (Minn. 1994). Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). Johnson v. Callisto, 287 Minn. 61, 176 N.W.2d 754 (1970)

Constitutional and Statutory Provisions: Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability).

VI. Legal Issue #6: Do applicable exceptions void claims of vicarious official immunity?
Trial court held: Defendants were entitled to vicarious official immunity.

Preserved for Appeal: Oral arguments, exhibits, and written records [A-427].

Supporting Cases: Fahrendorff v. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999). Pletan v.Gaines, 494 N.W.2d 38, 42-43 (Minn.1992).

Constitutional and Statutory Provisions: Minn. R. 1300.0110, Subp. 9, Liability.

VII. Legal Issue #7: Do applicable exceptions void claims of statutory immunity?

Trial court held: Defendants were entitled to statutory immunity.

Preserved for Appeal: Oral arguments, exhibits, and written record [A-422 - A-426].

Supporting Cases: Gilbert v. Billman Constr., Inc. 371 N.W.2d 542, 546-47 (Minn. 1985). Spring Lake Park, 580 N.W.2d at 23. Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants State of Minnesota in Court of Appeals, A08-1580 (August 11, 2009).

Constitutional and Statutory Provisions: Minn. Stat. § 466.03, subd. 6 (2008). Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability). Case law is not required when a statute is clear and requires no interpretation. When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit (Minn. Stat. § 645.16). Minn. Stat. § 586.09.

VIII. Legal Issue #8: Did exceptions exist to nullify qualified immunity?

Trial court held: Defendants were entitled to qualified immunity.

Preserved for Appeal: Oral arguments, exhibits, and written record [A-427 - A-431].

Supporting Cases: Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Constitutional and Statutory Provisions: Intentional torts are subject to liability (Minn. R. 1300.0110, Subp. 9). Inspections by Building Inspections (Minn. R. 1300.0110, Subp 7).

IX. Legal Issue #9: Are defendants guilty of gross negligence?

Trial court held: Did not rule.

Preserved for Appeal: Oral arguments (transcript) [33:11-25], exhibits, and written record [A-66 - A-67].

Supporting Cases: Smith v. Wade 461 U.S. 30, 56, 75 L. Ed. 2d 632, 103 Sup. Ct. 1625 (1983); Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84). Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002).

Constitutional and Statutory Provisions: Minn. Stat. § 3.736 Tort Claims, Minn. R. 1300.0110, Subp. 7 and 9; Minn. Stat. § 466.03, Subd. 5, 8, and 10. Federal Tort Claims Act.

X. Legal Issue #10: Summary judgment proceedings did not address claims of Deliberate Indifference, Section 1983, Section 1985, Tortious Interference, Fraud, Fourth Amendment, Fifth Amendment, Fourteenth Amendment.

Trial court held: Did not rule.

Preserved for Appeal: Exhibits and written record [A-26, A-189 - A-190, A-193 - A-194, A-217, A-401 - A-402, A-406 - A-407, A-410 - A-415, A-421 - A-422].

Supporting Cases: Section 1983. City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986). Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants.

Constitutional and Statutory Provisions: Fourth Amendment, Fifth Amendment, Fourteenth Amendment.

STATEMENT OF FACTS

Case: Plaintiffs Marvin Pirila & Gail Francette vs. Defendants Thomson Township, Thomson Township Fire Department, John Gulland, Jeffrey Juntunen, and Duane Grace. This case was heard by the Honorable Dale Wolf on October 14, 2010 in the Sixth District Court in Carlton County.

Defendant Duane Grace was represented by attorney Michael J. McNamara of Reyelts, Bateman & Schramm while the other defendants were represented by Stephanie Angolkar of Iverson Reuvers.

Plaintiffs appeal from a judgment that granted Defendants motion to dismiss based on immunity based on all records, exhibits, and transcript.

Plaintiffs bought the property at 1 N Cloquet Rd W in Esko, MN, from Thomson Township in 2006. Plaintiffs allege that Defendants maliciously and willfully neglected their ministerial and operational (day-to-day) duties in overseeing the applicable building codes and ensuing building permits. Additionally, Plaintiffs claim defendants performed their discretionary duties with malice and lack of good faith.

Defendant Duane Grace, Plan Reviewer, assisted Mr. Gulland in the interpretation of building codes, receiving a portion of building permit fees as payment for his services [A-20]. The duties assumed by Defendant Grace to Plaintiffs where those specifically required under Minnesota Building Codes, Statutes, and Rules.

The Plaintiffs initiated a complaint and request for an investigation by the MN Department of Labor & Industry (MN DOLI). [A-5 - A-15] regarding issues with building inspector John Gulland.

The MN DOLI investigated the complaint regarding delays in the review and permitting process. Barry Greive, Senior Investigator for the MN DOLI conducted the investigation that resulted in the “censuring” of Defendant Gulland for several violations of Minn. Statutes and Rules, as defined under the Minnesota State Building Code.

On September 1, 2009 the MN DOLI informed Defendant Gulland that they had concluded their investigation (file # 09.1244), “Based on all of the information obtained during the investigation, the Department has concluded that you engaged in the following violations of the statutes and rules that govern duties of a Minnesota certified building official: Minn. Stat. § 326B.133, subd. 4; Minn. R. 1305.903.2.7; Minn. R. 7676.1400; Minn. R. 1311; Minn. R. 1300.0110 [A-66 - A-69]; Minn. R. 1300.0110, subp.3 and subp. 4. [A-5 - A-15, A-66 - A-67]

It is noteworthy that the MN DOLI uses the word “engaged” as it implies he intentionally sought conflict through ignoring guiding statutes and rules.

They also concluded that Defendant Gulland "did not maintain administrative control over this project, thus allowing others [Duane Grace] to dictate code compliance. This resulted in confusion and/or delays. [A-5]

The Department is prepared to issue a Licensing Order regarding the violations outlined above that may include civil penalties up to $10,000 per violation. However, we are willing to allow you an opportunity to resolve this matter on an informal basis. Attached please find a Consent Order, by which you would agree to be censured and take five additional continuing education units in the next 12 months. You would be fined $5,000, though the $5,000 penalty would be stayed conditioned upon your compliance with the provisions of the Consent Order.” [A-5]

Defendant Gulland agreed to the “Consent to Entry of Order” signed by him on 9/29/09 [A-9].

The MN DOLI is the official administrative department of Minnesota Building Codes and oversees building inspectors enforcing them. Their censuring of building inspector John Gulland is proof that ministerial and operational duties were not followed as required by Minnesota Statutes and Rules.

The MN DOLI based its ruling upon the actions, records, and interview results of John Gulland.

GREB and Existing Building Provisions [A-2 - A-4, A-47-A-48]

Plaintiffs hired Designer Greg Hallback, in March 2007, to design and derive correct building codes. Mr. Hallback argued initially for GREB and the use of the 2003 Minnesota Building Codes, giving precedence to the “2003 International Existing Building Code,” for areas that GREB did not apply [A-47 - A-48, A-114]. Defendant Gulland did not specify any change and Designer Hallback continued with the design plans. Once GREB is requested and is applicable, its use becomes strictly a mandatory and ministerial duty for plan reviewers and building inspectors. Later on, despite Plaintiffs consistent requests that orders be in writing, Defendant Gulland verbally stated that the gym would have to meet the guidelines of the 2003 Minnesota Building Codes as well as current energy and accessibility rules, despite applicable exceptions. Designer Hallback argued "the gymnasium should not be reclassified since it was built as a gymnasium/community center, has always been a gymnasium center, and will continue to function as a gymnasium/community center. For nearly 70 years this building functioned in many, many capacities..." [A-49] Mr. Gulland insisted that a “change in ownership constituted a change in use” and subjected the project to current codes, and not GREB. Defendant Gulland interpreted it to mean that the building would be treated the same as a “new construction.” The MN DOLI investigated in 2009 and determined that GREB was correct and that energy codes did not apply [A-5]. Nothing in the State Building Code suggests a “change in use” occurs by a “change in ownership.”

The 2007 State of Minnesota Building Code (MSBC), adopted in July of 2007, replaced the 2003 version, while retaining the GREB guidelines. Neither Defendant Grace nor Gulland can accept the 2003 IBC as it wasn’t the effective and adopted state building code at the time the building permit was issued. Similarly, GREB may only be changed if another method or code was requested and approved. The Plaintiffs and Designer Hallback never requested any code change after the initial request for the 2003 IBC and GREB [A-47]. At no time in the review process were Plaintiffs informed that the 2007 State Building Code was to be applied exclusively to Phase 1, without allowances for GREB or Buildings [A-2, A-47 - A-48]. Likewise, no method or code was requested and approved in place of GREB and absent this request and approval, cannot be rejected.

Defendants Gulland and Grace gave Designer Hallback their approval to complete the designs for the first phase without the need for an architect. The building code that Architect Adams said he used in the “second” phase was the 2007 Minnesota State Building Code/2006 International Building Code and amendments. “The 2000 Guidelines for the Rehabilitation of Existing Buildings is not subject to frequent change…” Minn. Stat. § 1311.0010 [GREB] is incorporated by reference and made a part of the Minnesota State Building Code. An alternate code must specifically be asked for and approved. Architect Adams never asked to use any code in place of GREB.

Crawl Space: Defendants Gulland and Grace declared the area under the main building a crawl space requiring insulation throughout despite applicable exceptions (GREB and Section 1322.1101 IRC Section N 1101.1, Exceptions 3 & 4 [A-70]) and that it should have been considered technically infeasible. [A-3 - A-4]

Duane Grace wrote, “Now some of the requirements of this section [7674.0600] really should not be required of this structure and it is not economical [ly] feasible in that strict compliance would result in expenditures that would never pay back in that man’s lifetime. That is why we never will ask someone to dig around the foundation and install insulation to frost design depth.” Despite this promise, Defendants Grace and Gulland made this a strict requirement. Considering the great amount of time dedicated to this one item, and the ambiguous nature of the conversation, Defendants Grace and Gulland made something admittedly “technically infeasible” into a costly, delay oriented issue. [A-3 - A-4] The discussion of the crawl space disappeared when the MN DOLI initiated its investigation.

Occupancy Load: Defendants refused to allow exception to Section 1004.1.1 for occupancy loads, instead requiring a lengthy, unnecessary debate and submittals [A-124 - A-128]. This exception states, “When approved by the building official, the actual number of occupants for whom the space is designed for.” In Defendant Grace’s words to Gulland, “I believe as we discussed, this second floor or even the first floor could never support that high an occupant load as presently designed.” [A-121] The Plaintiffs were not copied on this email and found it during the discovery process.

Stop Work Order: There were no inspections made prior to the Stop Work Order written by Gulland; in fact, he made no contact with anyone, and had no facts or credible reason to substantiate the order. Defendant Gulland constructed a letter dated February 12, 2007, three days before posting the Stop Work Order on February 15, 2007. [A-16 - A-18]

Blank On-Site Inspection Card: Defendant Gulland failed to make any entries to the on-site inspection card as required by Minn. Stat. § 1300.0210, Subp. 3 [A-86] and 1300.0110, Subp. 5 [A-66]. This card is used by building inspectors to record inspection dates, areas inspected, noting approvals or deficiencies. Even throughout the MN DOLI investigation, Defendant Gulland made no entries to the on-site inspection card. The on-site inspection card was blank and there was no official record of inspections kept at Thomson Township. [A-1]

Public Duty Doctrine: Thomson Township had no key policy and acknowledged it didn’t know who retained keys to Plaintiffs building. Defendants Gulland and Juntunen made their way through locked doors on numerous occasions. Nothing was offered to explain their ability to pass locked doors any other way than by a key.

Second, Thomson Township failed to voluntarily answer information requests [A-101], letters, and emails. Defendant Gulland or any other person with keys had access to this file without any true accountability. This file did not show any evidence of inspections, details, or the basis upon which Thomson Township attorney David Pritchett based his letters citing fire and building code violations [A-87]. Thomson Township attorney David Pritchett interfered with informal discovery by writing plaintiffs and stating they were “…hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town.” [A-122 - A-123] Such requests by a person acting Pro Se are legal and especially appropriate when the town continually fails to respond to requests.

Defendants failed to answer Plaintiffs’ Request for Production of Documents, Set I, Requests 8-10, 12, 18-22, 26-27, 30-32, 33, and 35 claiming that the “Request calls for private data under the Minnesota Data Practices Act.” [A-102 - A-112, A-122 - A-123] The Minnesota Data Practices Act did not apply to Defendants [A-101] and was the basis by which they refused to answer previous requests for information.

In Thomson Township’s Answers to Interrogatories, Rhonda Peleski failed to provide any information for the 50 questions asked [A-175 – A-183].

Defendants refused to admit the genuineness of all documents submitted with Requests for Admissions [A-33 – A-35].

Third, Thomson Township conducted no recognizable inquiry into the reported behaviors of Defendants Gulland and Juntunen. Thomson Township denies that it has the obligation to oversee the actions of its employees and contractors [A-21, Adm. 23]. Thomson Township retains the authority under Minn. Stat. § 16B.65 to dismiss or suspend a building official at its discretion, yet they stand behind its claim that it has no obligation to oversee its building official. The Public duty doctrine imperatively follows statutes, US Constitution, and Minnesota Rules regarding entry.

Ambiguity: The absence of written orders and constantly changing verbal requirements led to unnecessary ambiguity. The MN DOLI cited defendant Gulland for failing to put all orders in writing [A-5] even though constantly pressed by Plaintiffs. Defendants Gulland and Grace differed in opinions that included: Defendant Grace said he had allowed a temporary certificate of occupancy when life issue items were scheduled for completion. Defendant Gulland adamantly refused. Defendant Grace said he had allowed phased approval of building permits to allow for some work to be done. Plaintiffs wanted to insulate the lower level of the main building to prevent as much heat loss as possible. Defendant Gulland refused. The Plaintiffs consistently received differing viewpoints from both.

Inconsistent “Admissions” statements: Defendant Grace admits Plaintiff Pirila was acting as his own general contractor, whereas Defendant Gulland claims he didn't know [A-23, Adm. 34]. The record clearly shows Plaintiff Pirila was acting as the General Contractor. Defendant Gulland denied that the MN DOLI was the official authority in charge of the building inspectors charged to enforce provisions of the Minnesota State Building Codes [A-30 – A-31, Adm. 101] while Duane Grace admits they are [A-261, Adm. 249].

Requests for Temporary Certificate of Occupancy: Plaintiffs made several attempts to get the requirements for a temporary certificate of occupancy in writing from Defendants Grace and Gulland and were ignored [See A-250, Adm. 162]. Plaintiff’s ability to manage the project was seriously hindered by the absence of written orders and the presence of verbal orders that consistently changed.

Alienation & Malice: Defendant Grace privately made many statements by email to Designer Hallback and Architect Adams that seemed to have the intent of alienating them from plaintiffs [A-117 - A-119]. The fact that Adams and defendant Gulland jointly made entries without consent implies that it had that effect.

Entry without Consent/Trespass: Defendant Gulland made several entries onto Plaintiffs property without proper consent [A-88]. There was no unsafe, dangerous, or hazardous situation. There were only non-emergency, non-life threatening circumstances where consent for entry was just a phone call or letter away. Defendant Gulland never sought consent for entry, instead choosing to make inspections unbeknownst to Plaintiffs. Nevertheless, in Interrogatory 5, Defendant Gulland tries to justify his entries stating that he was always with someone. He was never in the building with just an employee of Plaintiffs, as he suggests [A-72, Interr. 5]. Plaintiffs had no employees. Defendant Gulland tagged along with Thomson Township Plumbing Inspector Paul Sandstrom on August 1, 2008, unbeknownst to Plaintiffs [A-73, A-79 - A-80]. Building inspectors generally do not attend plumbing or electrical inspections, and shouldn't be without the consent of owners or the ones performing the work. This was simply one township employee inviting another so he could perform an unauthorized search of premises. Defendant Gulland used this opportunity to produce a letter alleging building code violations the same day [A-114 - A-115]. Defendant Gulland’s attendance does not constitute consent and his report was based on illegal trespass [A-81 - A-82].

On two other occasions Defendant Gulland accompanied Architect Alan Adams, on forced progress inspections, both without consent of Plaintiffs. In fact, after the first surprise visit by the Architect and Defendant Gulland, Plaintiffs specifically objected to these inspections, and insisted that Defendant Gulland contact them for inspections or wait for them to call. He ignored their requests and made yet another unauthorized inspection with Architect Adams. The MN DOLI was contacted [A-112], and Barry Greive, Senior MN DOLI Investigator, immediately contacted Architect Adams and Defendant Gulland to discontinue what Plaintiffs considered punishment and retaliatory visits [A-83 - A-85]. These visits were discontinued immediately once the MN DOLI intervened, and clearly suggests they lacked legitimacy and were based on malice. Defendant Gulland forced plaintiffs out of work to make “his” scheduled meetings that were not reasonable, nor allowable under the statute.” These weekly meetings had little significance, were done against the consent of plaintiffs, unreasonable, retaliatory, and illegal. These forced inspections came only after the initiation of the MN DOLI investigation and during the residency of Plaintiffs. There was only one contractor working at that time and progress was slow.

These inspections were not consented to for Architect Adams [A-84, A-113] and Plaintiffs told Gulland the same. Lacking consent Architect Adams possessed no authority to invite or participate in these illegal visits. Defendants chose a time they knew the owners [Plaintiffs] were not home, expected no one on site, and had free reign to all areas inside the building.

The person doing the work authorized by permit is supposed to notify the building official that the work is ready for inspection per Minn. R. 1300.0210, Subp. 4. Defendant Gulland made several entries without consent or even attempting to seek consent. Defendant Gulland also required inspections when work wasn’t ready for inspection.

Records of inspections are to be kept on site by building inspectors [A-1], as well as in the Thomson Township files [A-67, Subp. 8]. Except for one plumbing inspection by Thomson Township Plumbing Inspector Paul Sandstrom that was found in Thomson Township files, there are no records for Defendants Gulland or Juntunen recording inspections.

Defendant Gulland failed to document inspections on the job site inspection card [A-1] and in the official records of the municipality, including type of inspection, date of inspection, identification of the responsible individual making the inspection, and comments regarding approval or disapproval of the inspection [A-1]. Other than a stop work order and ultimately a building permit, there was nothing in the interim. Gulland chose to threaten or issue stop work orders, rather than perform the duties (on-site inspection card, records of inspections, answer emails/phone calls, or put orders in writing) that would benefit the process. It was a crapshoot for Plaintiffs to figure out what Defendant Gulland would change next, because he kept all orders and requests verbally. Every action was to delay the project, not assist it.

Defendant Juntunen does not disguise his entry without consent simply responding he “entered Plaintiffs’ property to enforce fire code regarding large pile of debris” [A-24, A-87]. The large pile of debris Defendant Juntunen refers to was a pile of slats piled near the west wall of the building, outside. This pile did not happen overnight and in no way constituted an immediate problem that would justify any visit without consent of Plaintiffs. He made no effort to seek consent of plaintiffs prior to entering premises. There isn’t a phone record, an email, a record of inspection, or any other document to substantiate any attempt [A-116]. He also didn’t leave any notice that he had been inside Plaintiffs building. The building was vacant at the time and did not necessitate emergency access. Advance consent or a search warrant is a statutory requirement. If this were an authorized inspection there should have been a record on file at the Thomson Township Fire Department or proof that he had consent.

Defendants entered Plaintiffs property at times they reasonably knew they would be working, and could easily verify this by the lack of any vehicle in either parking lot. Absent the cars and the consent of Plaintiffs, both Defendant Gulland and Juntunen, made their way to a door they reasonably expected to be locked. Even so, they had every expectation of getting inside. The only way to have had this expectation was to have a key for that particular door.

Defendants Gulland and Juntunen roamed freely through Plaintiff’s property with no consent from Plaintiffs and no warrant. Thomson Township Attorney David Pritchett based his letter on September 5, 2008, upon the claims of Defendants Gulland and Juntunen, and threatened a stop work order [A-87]. Mr. Pritchett consulted with ex-zoning official, Marv Bodie, regarding the matter, which brings privacy rights into question [A-87]. As an attorney, David Pritchett was reasonably aware Gulland and Juntunen entered without consent. The Plaintiffs expressed their concerns with trespasses to Attorney Pritchett in their September 9, 2008 letter and received no response [A-88 - A-91]. Mr. Pritchett, like Thomson Township and the Thomson Township Fire Department, failed to make any recognizable inquiry into the actions of either Gulland or Juntunen.

Plaintiffs filed trespassing charges against Defendants Gulland and Juntunen with the Town of Thomson Police Department on June 24, 2010 [A-64 – A-65]. Because of the relationship of local law enforcement official Tom Foldesi with local officials, it was sent to Carlton County Attorney Tom Pertler [A-50]. The trespasses were discussed with the MN DOLI and State Fire Marshal prior to taking to the local authorities. The MN DOLI official stated that it was trespass and should be reported to the local authorities. The State Fire Marshal said they lacked jurisdiction unless Mr. Juntunen was acting in the capacity of Deputy Fire Marshal. Mr. Juntunen claimed his entries were done in the capacity of the Fire Chief [A-218, Interr. 22 (2)].

Plaintiffs scheduled an inspection by Defendant Gulland in March of 2009 in hopes of receiving a Temporary Certificate of Occupancy. The Plaintiffs asked Nick Perfetti to join them as they wanted another person to witness the verbal discussions they had with Defendant Gulland. The Plaintiffs had taken this measure because Defendant Gulland had repeatedly changed the verbal requirements for a Temporary C.O. (In fact, the verbal requirements continually changed and frustrated the plaintiffs repeated desire for them in writing. Gulland refused and only relented after the MN DOLI got involved). Mr. Perfetti arrived around 4:25 pm and found locked doors. He returned home for 20 minutes before returning at the same time as Ms. Francette. They found Defendant Gulland’s unoccupied vehicle and entered the building to find that Gulland was already inside. Francette immediately confronted Gulland and asked him how he gained entrance and he ignored the question [Depo. Francette, 14:8-20]. After Plaintiff Pirila arrived, he also asked Defendant Gulland how he got in through a locked door and was ignored [Depo. Pirila, 14:21-25, 15:1-10].

Thomson Township officials denied that “no trespassing” and “private property” signs are displayed throughout plaintiffs’ property [A-21, Adm. 19]. The signs were and have always been there throughout Plaintiffs ownership.

Building Permit Delays: Plaintiffs requested their first building permit and met with a 42-day review (December 4, 2007 - January 15, 2008) by Grace before he passed it on to Gulland for final approval [A-92 - A-99]. Defendant Gulland failed to act on the building permit in a timely manner (27 days) until Plaintiffs contacted the MN DOLI. This is a violation of Minn. R. 1300.0110, Subp. 8, Action on Application [A-142]. On February 11, 2008, Defendant Gulland finally issued a building permit with the expectation of a MN DOLI investigation [A-100].

The 2^nd building permit took 72 days of review for approval with Defendant Gulland failing to state his reasons for failing to take action on the building permit application in a reasonable time after filing. The site inspection card did not state that anything was deficient. In fact, the on-site inspection card was blank [A-1]. There was no written documentation from Defendant Gulland either rejecting the application or stating the reasons for its delay.

Knowledge of Problems: Thomson Township Attorney David Pritchett took an active role in the zoning discussions prior to Plaintiffs purchase. Pritchett acts as a liaison between various committees and the Town Board, as well as being contracted by Thomson Township to render legal advice on the behalf of both Thomson Township and the Thomson Township Fire Department. The allegations made by Defendants Gulland and Juntunen came after their trespasses. Had David Pritchett conducted a thorough investigation, asked where the information originated, and seeing within the file that there was no scheduled day for an inspection, he should have known this was either by trespass or they needed to explain further.

Thomson Township employee Rick Bassett (Zoning Officer) informed plaintiff’s banker James Kallestedt that Plaintiff Pirila and Defendant Gulland did not get along during a critical juncture in their search for financing.

Defendants deny that Marvin Bodie ever acted as a clerk for Thomson Township [A-20, Adm. 8-9] yet he clearly was the administrative clerk for the February 12, 2008, meeting held at Thomson Township [A-388].

Defendants denied that many groups were previous occupants/renters of the Old Washington School, when in fact they were.

ARGUMENT

1: Ministerial Duties and Operational (Day-to-Day) Duties

The MN DOLI censured Defendant Gulland for numerous violations of ministerial and operational duties, including:

a. Allowing a building to be constructed without a required fire suppression system (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1305.903.2.7) [A-1].

b. Requiring a structure to comply with the current energy code despite applicable energy code exceptions (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400) [A-5]. [This demand resulted in Plaintiffs having to put new 2x6 walls throughout the building, as well as new insulation, sheetrock, wiring, and plumbing. This included ceilings. Duane Grace admits he insisted that energy codes applied [A-246, Adm. 128; A-262, Adm. 259]. Defendant Gulland denied he failed to follow Chapter 1322 of the MSBC – Residential Energy Code exceptions for existing buildings [A-26, Adm. 58] despite the conclusion of the MN DOLI stating otherwise.]

c. GREB (Minn. R. 1311) and exceptions for existing buildings were specifically to be used for the project unless an alternate method or code was requested and approved (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110) [A-3 - A-4, A-66 – A-69]. [Both Gulland and Grace expressed their knowledge of GREB and provision for Existing Buildings and statutory requirements that obviously applied to a building built in 1907 and a gymnasium built in the 1930’s. Their knowledge and the expressed request by Plaintiffs for their use, as well as the statutory requirement, leaves no explanation other than one based on malice for their failure to allow GREB. There was 10 months from the first request for GREB until the first building permit, and nothing to overcome the argument that no alternative building codes were requested, nor approved. Another year passed before the issuance of the 2^nd permit and still GREB was improperly refused. Defendant Gulland had worked out of the Plaintiffs building from March 16, 1995 to the summer of 2006, or roughly 11 years as a building inspector when Thomson Township owned it.]

Defendant Gulland claims he did not use GREB because Plaintiff’s architect did not select GREB. Admit Mr. Adams elected to use the 2007 MSBC, IBC, and amendments for this project [A-24, Adm. 47]. This admission is made contrary to known facts. Mr. Adams (architect) was not on board until midway through the second phase of this project. The decision to use GREB was requested by designer Greg Hallback at the very beginning in both writing and verbally. Gulland denies that GREB guidelines applied [A-25, Adm. 48] despite being censured in part for failing to allow it unless another code was requested and approved. The Plaintiffs request is in writing and was requested verbally, yet Mr. Gulland has nothing to show as evidence that another code was requested and subsequently approved by him in writing. Gulland admits GREB rules are followed for an existing building [A-25, Adm. 52]. Gulland denies he followed the rules for Existing Buildings in the 2006 IBC [A-25, Adm. 57]. There is no factual evidence to validate this claim.

Defendant Grace admits he didn’t follow GREB guidelines for Plaintiffs project [A-256 - A-257, Adm. 214]. However, he denies that he failed to interpret codes accurately for plaintiff’s project [A-232, Adm. 19]. Grace admits he eventually learned that GREB could be used for Plaintiff’s project [A-238, Adm. 63), but unfortunately this admission came after the second permit had already been issued. Notably, Grace acknowledged the applicability of GREB as early as July 16, 2007, well before the first permit was issued in February of 2008. Prior to the second permit, Mr. Grace acknowledges GREB once again on December 11, 2008. Grace further admits GREB could have been used [A-238, Adm. 65]. Grace admits he should follow the GREB code when applicable [A-238, Adm. 62]. Grace admits being familiar with GREB [A-242, Adm. 99]. Grace admits he used GREB for other projects after Plaintiff’s project…[A-242, Adm. 102], yet still denies GREB was never used on Plaintiffs project [A-243, Adm. 104]. Grace admits he has followed GREB guidelines in all renovation/rehabilitation projects, unless other alternate methods are approved [A-256, Adm. 213]. He admits an experienced plan reviewer would not mistake a rehab project for new construction [A-259, Adm. 234].Grace denied he had a statutory obligation to treat this project under GREB [A-265, Adm. 281], even though the MN DOLI stated otherwise. There is no evidence to support GREB’s use anywhere.

d. Approving documents showing a code edition that was not adopted by the State of Minnesota (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110) [A-66 - A-69]. [This is common knowledge of building inspectors, and should be for plan reviewers as well [A-5]. Grace denied this charge [A-242, Adm. 95].

Defendant Grace is also responsible for the four above-mentioned violations of Minn. Statutes and Rules regarding ministerial and operational duties. Defendant Juntunen was also responsible for the violations regarding the required fire suppression system. The Commissioner of Labor and Industry have the power to enforce the State Building Code under Minn. Stat. § 326B.106, Subd. 2 and Minn. R. 1300.0070 Subp. 24. The MN DOLI also censured Gulland for:

e. Allowing work to continue without first issuing the proper permits is a violation (Minn. Stat. Minn. R. 1300.0070 Subp. 24, 326B.133, subd. 4, and Minn. R. 1300.0110, subp.3 [A-66]) [A-5].

f. Failure to issue all correction orders in writing (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 4 [A-66]). [Issuing correction orders in writing is ministerial. This repeated failure created ambiguity [A-5]. Despite the findings of the MN DOLI, Gulland denies he did not respond to multiple requests to put orders in writing [A-27, Adm. 75]. He also denied he failed to issue correction orders in writing [A-31, Adm. 102] but there is no evidence to support his claim.]

g. You did not maintain administrative control over this project, thus allowing others [Duane Grace] to dictate code compliance. This resulted in confusion and/or delays [A-5]. [It also created ambiguity.]

The District Court misunderstood the significance of the censuring of Defendant Gulland, failing to recognize those items cited were clearly ministerial duties. If they were not, there would have been nothing to censure. The MN DOLI, under Minn. Stat. § 326B.082, uses enforcement provisions under Subdivision 1 for conduct that would provide grounds for action under a licensee...under the applicable law." The MN DOLI was prepared to pursue civil penalties of $10,000 per violation and another $5,000 if he failed to agree to other terms of the Order to be censured. This amounts to as much as $75,000 and cannot be considered a minor reprimand. The administrative order to penalize Mr. Gulland $10,000 per violation is due to the applicable laws he broke (Minn. Stat. § 326B.082, Subd. 7). Mr. Gulland waived his right to fight the charges and chose to agree to informal proceedings. The censuring of Gulland is strictly based on his violations of the law. The amount the MN DOLI was prepared to pursue is indicative of the amount of harm they considered Mr. Gulland was responsible for.

The MN DOLI could have elected to charge Defendant Gulland for failure to complete other ministerial and operational duties such as:

a. Completing on-site inspection cards showing work and areas inspected, noting deficiencies or approvals (Minn. Stat. § 1300.0210 Subp. 3 [A-86] and 1300.0110 Subp. 5 [A-66]). [The requirement to complete the on-site inspection card is ministerial, the terms of how this is completed is discretionary. These cards would have reduced ambiguity and provided a framework for making necessary corrections [A-1].]

b. Records of inspections were not kept at Thomson Township as required. Defendant Juntunen did not keep any records of inspections at the Thomson Township Fire Department. Defendant Gulland failed to document inspections on the job site inspection card and in the official records of the municipality, including type of inspection, date of inspection, identification of the responsible individual making the inspection, and comments regarding approval or disapproval of the inspection (Minn. R. 1300.0110 Subp. 8 [A-67]). [This is a statutory requirement, and thus ministerial. It serves the additional purpose of validating legal entries and the purpose of the inspection(s).]

c. Failing to allow exceptions when known and ministerial in nature, such as those for the crawl space and occupancy loads. [The emails show the Defendants knowledge of these exceptions during the process, and the subsequent refusals to allow them (A-121, A-124 - A-128).]

d. Failing to conduct plan reviews in a timely manner. [These long reviews came after numerous revisions, evidenced by emails and drawings, considered final submissions.]

e. Failing to act on applications for building permits in a timely manner. [After the lengthy plan reviews by Defendant Grace, Defendant Gulland refused to act on the application, failing to state reasons for not approving them. It was not until the MN DOLI was contacted the first time, and not until the MN DOLI initiated its investigation the second time.]

f. Violating rules regarding entry. (Minn. R. 1300.0110 Subp. 7 [A-66 - A-67] and 1300.0210, Subp. 4 Inspection [A-86]). Trespass: Minn. Stat. 609.605 Subd. 1, 4, and 9. These entries constitute illegal and unreasonable searches. A reasonable search, pursuant to the Fourth Amendment requires a warrant or the owner's consent, balancing the need to search against the invasion that the search entails [A-62].

Defendant Juntunen failed his ministerial duties by failing to follow Minn. Statutes and Rules regarding:

a. Rules regarding entry (Minn. Stat. ¶ 299F.09, 299F.08, Subd. 1, 609.749 Subd, 1, 2, and 5)

b. Keeping reports of inspections on file at the Thomson Township Fire Department.

"Reasonableness" is the ultimate standard of the Fourth Amendment in determining whether an action is constitutionally permissible. Given the number of statutes Defendant Gulland was censured for, as well many more Minnesota Statutes and Rules that he, Grace, and Juntunen are responsible for violating, the standard of reasonableness has failed.

Every occupation has required duties that are necessarily followed, or it would lack the traits necessary for classification as an “occupation.” The court has taken “discretionary” too far in this case, ruling that building inspectors, plan reviewers, township officials, and the fire chief have within their power to do anything they desire under the guise of immunity. This is basically "sovereign immunity" and wrongly granted. Building inspectors are subject to oversight by the MN DOLI, who was given this power through legislation. The MN DOLI censured Defendant Gulland for what they considered a derelict of duties, clearly ministerial in definition.

Thomson Township, subject to certain exceptions under Minn. Stat. § 466.02, may be held liable for the torts of its officials under the Minnesota Tort Claims Act. Contrary to the courts ruling, these were not discretionary functions or duties, but ministerial and operational duties. They are clearly stated within the State Building Code, applicable Minnesota Statutes and Rules.

Defendants argue that the issuance of building permits and certificates of occupancy and the interpretation of building codes are discretionary acts, and municipalities are immune from tort liability for those acts. Anderson v. City of Minneapolis, 287 Minn. 287, 289, 178 N.W.2d, 215, 217, 1970). Anderson, however, does not address the forfeiture of claims to immunity when ministerial and operational level (day-to-day) duties are violated during the process. The issuance of building permits and certificates themselves may be discretionary, but immunity is premised on a process where ministerial duties and operational duties are followed. This includes: completion of on-site inspection cards [A-1], records of inspections, proper consent for entry, and adherence to applicable rules, laws, and duties. Anderson preceded the abolishment of sovereign immunity by judicial and legislative action in 1976.

If the legislative intent was to immunize building inspectors and municipalities from all aspects of the building permit process, there wouldn’t be exceptions. Statutes would simply not be needed to guide them in the process, as all functions would be “discretionary,” nor would the MN DOLI be needed to oversee. The State has moved in the direction of holding public officials more accountable in their positions by ending "sovereign immunity" and intended to hold them accountable for certain abuses, including ministerial and operational duties.

The imminent risk to the public is that individual rights are dismissed throughout the process, and the project they undertook is determined in whole by a corrupt building inspector. This case is instructive in showing exactly the problems that result from the belief that all duties are discretionary for building inspectors and they are entitled to immunity, regardless of their conduct. In this particular case: the wrong building codes were purposely enforced; illegal entries were made; the building inspector and fire chief failed to keep records of inspections; there was no written orders; no on-site inspection card [A-1] ; no clear cut instructions for certificates of occupancy; unjustified and unanswered delays in taking action upon application for permit; unjustified delays in the plan review process; retaliation for MN DOLI investigation [A-144]; broken verbal promises; intentionally created ambiguity; and malicious, corrupt motive.

Malicious means “nothing more than the intentional doing of a wrongful act without legal justification or excuse” or committing acts “while having reason to believe they are prohibited.” Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997). The record clearly shows that Defendants Gulland and Grace knew that GREB applied, but adamantly refused its application. Given the years of experience, training, and positions held by Defendants Gulland, Grace [A-167 – A-168], and Juntunen, it is unreasonable to believe these mistakes were simply done in error. The refusal to use GREB establishes intent, without just cause or reason, to commit a wrongful act that will result in harm.

Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002) states, "[A] state employee who 'fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty.'

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23. The defendants both violated known statutes, constitutional rights, and laws; they also committed discretionary duties with malice.

2. Trespass/Entry without Proper Consent

Defendant Gulland entered Appellants property on several occasions without consent or attempt at consent in violation of Minn. R. 1300.0110, Subp 7 [A-66 - A-67]. There was no unsafe, dangerous, or hazardous situation to prompt entry and entry is subject to consent or a search warrant. Appellants work as local postmasters and were simply a phone call away. The building was vacant and no certificate of occupancy was issued. Defendant Jeffrey Juntunen also made entry without consent, or even an attempt at consent [A-218, 22]. Defendants made entry to a locked building suggesting they used keys possessed from Thomson Township's previous ownership of the same building. All of the doors had not been replaced, nor locks changed, in the building after appellants took ownership.

Building inspectors and fire chiefs are expected to make allowable inspections, with consent or search warrant, at reasonable times. Defendants Juntunen and Gulland both made entries during the day knowing appellants were working [A-63 - A-65]. The absences of vehicles at a vacant building were obvious, the doors were locked, and yet both made entries. Defendant Gulland made the drive from Duluth on different occasions, knowing he could enter a locked building, to make illegal inspections. Defendant Juntunen made the drive from just two miles away from the property and chose to make entry without consent, rather than waiting to visit while appellants were home or pick up the phone to seek consent. Making inspections without the knowledge of appellants is unreasonable, trespass, and a violation of ministerial rights dictated by Minn. R. 1300.0110 Subp. 7 [A-66 - A-67]. Defendant Gulland is prohibited from entering "the unoccupied property to attempt to locate someone to communicate building code issues or unpermitted construction.” Subp. 7 includes, "... if premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry.”

Minn. R. 1300.0210, Subp. 4, Inspection requests include, “The person doing the work authorized by a permit shall notify the building official that the work is ready for inspection [A-86]. The person requesting an inspection required by the code shall provide access to and means for inspection of the work.” Inspector Gulland did not wait for the respective party to schedule an inspection; instead he decided when he would perform inspections without the benefit of consent. Plaintiff Marvin Pirila was acting as his own general contractor and should have been contacted to arrange inspections. Surprisingly Defendant Gulland denied during admissions that Mr. Pirila was acting as the general contractor [A-23, Adm. 34]. This admission was made in contradiction to known facts. Grace however admits that Marvin Pirila was always acting as his own general contractor [A-261, Adm.249].

Defendant Juntunen does not have the authority or right to enter private property, even if the door was open [A-218, 22(1)]. The mere act of entering private property, occupied or unoccupied, through a locked or open door is trespass. The common law of trespass dictates you stop at the door and knock, or leave a note. The Plaintiffs were just a phone call away. There was nothing of significance to justify immediate entry. All Defendant Gulland or Juntunen had to do was call one of the Plaintiffs and ask for an inspection that evening. Plaintiffs had never denied an inspection that was properly requested and arranged. Defendants elected to enter known, unoccupied premises at the time, without allowing Plaintiffs the opportunity to attend. The entries made by Defendant Juntunen were clearly trespassing and the entry of Defendant Gulland constitutes both trespass and corrupt motive.

“…The Court concludes that emotional distress damages are recoverable for trespass actions under District of Columbia law.” Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH).

The Plaintiffs, Nick Perfetti, and contractors, Mark Blomquist [A-116] and Jake Fjeld, all verified locked doors that both Defendants Gulland and Juntunen bypassed. Defendants claimed they simply entered by an open door [A-218, 22 (1)]. Thomson Township has admitted it has no key policy and would have no way of knowing those who retained their keys for the Old Washington School (Plaintiffs property).

These trespasses and entries without consent were clear unlawful interference with plaintiffs “constitutionally protected property rights” and unconstitutional deprivation of property without due process (Constitution of the State of Minnesota, Article 1^st Bill of Rights, Section 10) [A-57]. Defendants routinely violated the common law of property, the rights of ownership that include the right to control, possess, and enjoy property.

The entries by Defendants Gulland and Juntunen constitute trespass pursuant to Minn. Statute 609.605, Subd. 1 (2007) that states, (b) a person is guilty of a misdemeanor if the person intentionally: (4) occupies or enters the dwelling or locked or posted building of another, without claim of right or consent of the owner or the consent of one who has the right to give consent, except in an emergency situation; (9) enters the locked or posted construction site of another without the consent of the owner or lawful possessor, unless the person is a business licensee [A-53 - A-54].

If the statute's language is unambiguous, we must apply its plain meaning (Minn. Stat. § 645.16 (2008)). Under the basic canons of construction, no word or phrase should be deemed superfluous, void, or insignificant.

Defendant Gulland has a ministerial duty of documenting all inspections on-site [A-1], and along with Juntunen have the ministerial duty of recording inspections in the Thomson Township and Thomson Township Fire Department files, respectively. There are no files of any kind to support entries without consent, and by definition illegal.

Minn. Stat. ¶ 299F.09 clearly states that entry by fire chiefs (Jeffrey Juntunen) may be made only “after proper consent” or “pursuant to an administrative search warrant” [A-56 - A-57]. Defendant Juntunen had neither.

Minn. Stat. 299F.08, Subd. 1 states [A-56] a fire marshal, even when investigating the origin of a fire, may enter premises, but this search must be “reasonable within the meaning of this subdivision. The need for investigatory search for the cause of the fire shall be balanced against the privacy rights of the occupant or owner of the building or premises.” Defendant Juntunen is the local Deputy Fire Marshal and is reasonably aware of this requirement. It reasonably follows that if the privacy rights are weighed in the event of even “suspicious” fires, in the absence of such situations, privacy rights would weigh much heavier.

Defendant Gulland "harassed" plaintiffs by engaging in intentional conduct (trespass) which: (1) he knew or had reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim [A-51]. Both Defendant Gulland and Juntunen committed acts that constitute violations of Minn. Statute § 609.749, Subd. 1 (1) and (2), Subd. 2, Subd. 5 [A-50 - A-52, A-58 - A-61]. Plaintiffs constantly feared entry by Thomson Township officials and anyone else that ever had a key to the building. All of the Plaintiffs possessions were within their property while they lived at Plaintiff Pirila’s sister’s house awaiting a Temporary Certificate of Occupancy [A-120, A-145]. Nearly the only written correspondence Gulland managed were alleged code violations he ascertained via entry without consent/trespass [A-81 -A82].

Whether a party has given consent is a fact question for the jury. Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 405 (Minn.App.1995); See also Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn.1982) (jury issue as to whether entrant became trespasser by exceeding scope of possessor's invitation or permission).

In Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986) the Supreme Court’s ruling showed that local government and employee liability can attach to even a single decision to take unlawful action in accordance with a policy established by a single local government policy-maker. If this unlawful action is prohibited and cause for liability for local policies, it follows that state and federal laws would also be applicable. This case has several cases of trespass, claims made based on these trespass, and numerous violations of state statutes and rules.

Once inside the building, without the consent of Plaintiffs, defendants had free reign to the entire building and their personal possessions. Inspections, like legal searches, are limited to certain areas, with either proper consent or a search warrant as needed.

The building official may not arbitrarily enter any existing building unless they have proper (legal) permission. MINNESOTA STATE BUILDING CODE ADOPTION GUIDE,

Minnesota Department of Labor and Industry Construction Codes and Licensing Division

Minnesota Building Codes and Standards Unit - January 2006.

Choosing to make entry secretly into Plaintiffs property without just cause or reason, such as an emergency situation, is clearly intent to abuse the scope of official authority. The failure to record these entries as required by statute is knowingly violating the law. Common law trespass has existed for hundreds of years and is too simple a concept to misunderstand.

3. Breach of Duty

There is a common law implied contract that exists between a building inspector and the homeowner. The building inspector is obliged to take reasonable care in administering building projects, following ministerial and operational duties, while using reasonable discretion where necessary to ensure proper building codes are followed. Both the building inspector and plan reviewer received fees based on their services, paid directly from plaintiffs. An implied-in-fact contract clearly existed betwen plaintiffs and the building inspector (Gulland) and plan reviewer (Grace).

Defendant Grace admits he was expected to review the building codes involved and aid in deriving the proper codes [A-239, Adm. 77].

Clearly stated statutes dictating aspects of building code administration placed Defendant Gulland in a position of “conduct, which merely puts into effect a predetermined plan.” Gonzales v. Hollins, 386 N.W.2d 842, 845 (Minn. App. 1986). The Minnesota Building Codes, Minnesota Rules, and Minnesota Statutes dictate what rules a building inspector must follow and where discretion is allowed.

The Supreme Court stated that the primary consideration in determining whether statutory immunity applies is whether the legislature intended to immunize the particular governmental function that gave rise to the tort action. If the intent of the legislature were to grant immunity for all acts and functions of the building official, they would have specified the same or simply eliminated exceptions from statutes. Plaintiffs argue that ministerial and operational level duties exist because of the need for maintaining a delicate balance between government and individual interests. Ministerial and operational level duties provide the basic framework that everyone expects to be followed methodically, providing both interests (government and individual) a common thread in which to manage their objectives. The absence of liability for these mandated duties would not serve the public or individual as there would be no form of accountability.

Thomson Township owes a duty to plaintiffs because it assumed the duty. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979). Thomson Township “assumed” this duty by filling four factors identified as tending to show an assumption of a “special” duty. These are: (1) Actual knowledge of a problem; (2) Plaintiffs’ reasonable reliance on representations and conduct of city officials; (3) An ordinance mandating acts by city officials for the protection of a class of persons; and (4) Actions by the city officials that increase the risk of harm.

In Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1988) the court defined what constitutes a special relationship in the building code context. The plaintiff must establish (1) direct contact or privity with the public official, (2) that the official in response to a specific inquiry represent that the building code complied with the building code, and (3) reasonable reliance on the inspector’s assurances and the building permit. Id. At 453. The facts in this case satisfy the special relationship defined by Taylor.

Knowledge of the Problem: Thomson Township assumed a duty to Plaintiffs by taking active roles in meetings at the Thomson Town Hall regarding building permits. Both Marvin Bodie and Rhonda Peleski took meeting notes in their positions as Administrative Clerk and Deputy Clerk, respectively, and would have been responsible for typing the final notes. It is noteworthy to mention that Thomson Township claimed Mr. Bodie was never acting as a clerk for them, an admission clearly made contrary to the facts [A-20, Adm. 8-9]. Additionally, Town Board Supervisor Ruth Janke participated in one of the meetings. Attorney Pritchett also consulted Zoning Official Rick Bassett and former Zoning Official Marvin Bodie on the building and fire code allegations [A-87]. Thomson Township voluntarily and actively assumed a duty through its active participation in the building permit process.

Defendants Gulland and Grace received numerous emails and phone calls from Plaintiffs with their concerns and requests to put orders in writing. Plaintiffs requested Defendant Gulland’s removal from their project on September 11, 2008.

Defendants Thomson Township, Gulland, and Grace were all aware of Plaintiff’s complaint to the MN DOLI regarding the first building permit delays, as well as the call for an investigation by the MN DOLI when the second permit also experienced unexplainable delays.

Assumption of Duty by Jeffrey Juntunen: Defendant Juntunen trespassed into the personal premises of Plaintiffs, allegedly looking for them. Defendant Juntunen claimed he entered to discuss the pile of slats located outside the west side of the main building. This external situation, and the fact that it had been in place for a period of time, did not merit entry. He made no attempt to contact Plaintiffs prior to entry. He willfully committed an illegal action upon which he proceeded to make claims against the Plaintiffs. Acting as the fire chief he voluntarily and willfully assumed a duty to Plaintiffs.

Also, Defendants Jeffrey Juntunen voluntarily assumed a duty to Plaintiffs by developing fire orders for their property, unbeknownst to them. The fire department has discretionary rights to develop plans, but in this instance they included staying external and letting the building burn. This demands consultation with Plaintiffs as there was a serious life issue. Defendant Juntunen also helped develop the fire alarm system to be used at Plaintiffs property.

Assumption of Duty by Thomson Township and John Gulland: Thomson Township has no key policy and doesn’t know who retained keys for Plaintiffs property when they sold it to them. They assumed a special duty as they permitted unknown parties to retain keys that gave them direct access to the Plaintiffs building and personal effects.

Plaintiffs’ reasonable reliance on representations and conduct of city officials: Defendants Gulland [A-29, Adm. 87] and Grace have extensive expertise in the administration of Minnesota Building Codes. Thomson Township Attorney David Pritchett was aware of the Plaintiffs claims of trespass. Mr. Pritchett has an ethical, moral, and legal responsibility to make sure claims he reasonably knew were false or based upon a crime were dealt with accordingly.

Plaintiffs were led to believe they could trust Defendants Gulland to derive the right building codes and provisions. Defendant Gulland was reasonably relied on to follow “clearly established” constitutional rights, and in the absence of “good faith” there is no defense of immunity. Section 1983, 42 U.S.C. Section 1983, Civil Rights Act of 1871.

Defendant Juntunen is the Thomson Township Fire Chief and the local Deputy State Fire Marshal. Both positions dictate rules regarding entry that Plaintiffs reasonably relied on to be followed. Defendants relied on Thomson Township officials to oversee the actions of their employees, contractors, and volunteers. Thomson Township denies they have this responsibility [A-21, Adm. 23].

An ordinance mandating acts by city officials for the protection of a class of persons: Thomson Township has no such ordinance, nor is it required. Cracraft, 279 N.W.2d at 806-807. It is not necessary to satisfy all four of these factors. “Our cases have never held that the absence of third factor is dispositive. The third factor is but one of four factors. If it were to have more significance, it would be an element and not just a factor.”

Actions by the city officials that increase the risk of harm: Thomson Township’s failure to conduct a reasonable inquiry into the actions of Defendants Gulland and Juntunen emboldened the likelihood and probability of further transgressions. In fact, Defendant Gulland continued to make “Entries without Consent” onto Plaintiff’s Property.

This case holds a special relationship or duty between plaintiffs and defendants. Thomson Township owned the Old Washington School property since 1980 and sold it to the Plaintiffs in 2006. Plaintiffs endured four hours of questions and answers by the Thomson Township Zoning Board, and discussed several restrictive covenants. Defendant Gulland, as a part-time building inspector for Thomson Township, retained an office in the Thomson Township Hall, as he did in the Old Washington School (1995-2006) when the township owned it. Plaintiffs relied on Thomson Townships’ building permits and inspection to be accurate, honestly derived, and fair. When the use of GREB was argued, Gulland said it did not apply. Plaintiffs were not expecting the Township to have retained keys after the sale of the property, or that any employee/contractor would be in possession of keys. Thomson Township didn't even know who had keys because they had no key policy.

"[A] legal duty of care is imposed either by the common law rule requiring exercise of ordinary care not to injure another, or by a statute designed for the protection of others." Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 554 (Minn. App. 2003). The Plaintiffs reasonably expected the ministerial and operational level duties of building inspectors, township officials, and fire officials to follow applicable Minnesota rules, statutes, and basic individual rights.

Legal issue #4: Personal Injury Claims (Duty, Breach, Causation, and Harm)

Element One (Duty): Defendant Gulland was a part-time building inspector for Thomson Township, delegating several of his duties to Defendant Grace, used by Thomson Township to assist on Commercial projects. Defendant Grace did the plan review and other building inspector duties, except for some inspections and issuing building permits/certificate of occupancies. The MN DOLI cited Defendant Gulland for not maintaining administrative control when it censured him [A-5] because he allowed Grace to dictate code compliance, when that duty belonged to him. Defendants Grace and Gulland supported each other's errors. Thomson Township uses Defendant Grace more as a subordinate building inspector than a plan reviewer. Defendant Grace tends to control the process when involved, rather than conducting a mere outside review. The near absence of written communication by defendant Gulland is indicative of his refusal to perform his mandatory duties.

The common law imposes a duty upon each person to exercise reasonable care under the circumstances to avoid injuring others. The degree of care required may be increased as the apparent danger from failure to exercise that care increases. Rieger v Zackorski, 321 N.W.2d 16, 20 (Minn. 1982). The degree of care increased when: Plaintiffs explained the problems to Thomson Township officials, notably Attorney David Pritchett, yet nothing was done. Thomson Township failed to respond to Plaintiff’s request for the removal of Gulland and failed to respond to information requests they promised (Pritchett). The refusal to put orders in writing or to allow GREB resulted in lengthier, most costly plans. It also killed all plans for using the gymnasium immediately as it had been used.

Element Two: Breach of the Duty of Reasonable Care. Defendant Gulland failed to conduct himself in a reasonably prudent and careful manner by failing to perform operational level duties, trespassing, and retaliating. The failure to allow GREB, the illegally exploratory invasions of privacy, long plan reviews, and unexplained delays in permitting led to extensive damages. Defendant Gulland’s retaliation for the MN DOLI investigation constitutes a violation of Minn. Stat. § 326B.082, Subd. 11 (7).

Element Three: The Defendant’s Breach Must Proximately Cause the Plaintiff’s Damages. The defendant’s negligence resulted in the loss of the gym for rentals, room rentals, and caused enforcement of non-applicable energy codes [A-2]. The refusal of Defendants to allow GREB and provisions for Existing Buildings was devastating to the project in terms of time and costs [A-2 - A-4]. Thomson Township building has no gymnasium and Plaintiffs would have had a distinct advantage for renting. This constitutes tortuous interference. Plaintiffs were restricted from using the gym, leading to the problems that Defendant Gulland wrongfully claims [A-71, Interr. 1]. These problems occurred because of his insistence that GREB didn’t apply. In fact, the Plaintiffs received many inquiries into use of the building facilities.

In the absence of GREB, the construction process became far more detailed, costly, and time intensive.

Element Four: The Plaintiff Must Suffer Compensable Injuries or Damages. Government officials have a duty to not knowingly act contrary to existing law. The knowledge that a particular action is illegal creates a duty to avoid such action. Thomson Township, via its attorney David Pritchett, was fully aware of Plaintiffs claims that Defendants Juntunen and Gulland trespassed, yet did nothing to prevent its reoccurrence.” The Plaintiffs have detailed their actual and imputed financial losses due to the negligence of defendants. Medical claims were also made including TMJ (jaw problems from grinding/clenching), increased depression, and emotional distress.

5. Official Immunity [A-426]

Official immunity does not apply to ministerial duties and operational duties. Susla v. State, supra, 247 N.W.2d at 677, 912. Willfulness or malice overcomes official immunity. State by Beaulieu v. City of Moundsview, 518 N.W.2d 567, 570-71 (Minn. 1994). When an official willfully exercises his or her discretion in a manner that violates a known right, the protection of official immunity evaporates. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). The malicious actions are summarized in part in legal issue # 1 arguments.

The test for determining whether common law doctrines apply to legislative enactments is whether the doctrine is consistent or inconsistent with the legislative intent in enacting the statute. A review of Minnesota statutory law shows that often when the Legislature intends for public employees to have immunity for their official conduct, it has expressly provided the scope and definition of the immunity. See Minn.Stat. § 626.556, subd. 4 (b). The statutes applicable in this case cite the exceptions to immunity, including their scope and definition. Stated herein are numerous actions that meet the exceptions to immunity that Plaintiffs have substantiated via testimony, written records, and exhibits.

Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability) [A-67]. The MN DOLI investigation clearly outlines the numerous ministerial duties that Defendant Gulland failed to perform. A building inspector, given the required training and expertise boasted by Defendants Gulland and Grace, would not reasonably violate so many ministerial and operational duties of their positions, some extremely egregious (trespass, failure to allow GREB, failure to allow exceptions for existing buildings) [A-3 - A-4, A-47-A-48]. The failures of Defendants to perform the most basic, expected, and statutory requirements of their positions were clearly done in malice. These acts were done intentionally and it is highly unjust that their resulting costs should be passed onto Plaintiffs.

From the enactment of the Human Rights Act's first provisions in 1955, until sovereign immunity was abolished by judicial and legislative action in 1976, official immunity was a dormant doctrine. A review of the case law reveals that during those two decades immunity for public officials from common law tort claims was given only one vague reference. See Johnson v. Callisto, 287 Minn. 61, 176 N.W.2d 754 (1970). The dormancy of the doctrine during the decades when the Human Rights Act was evolving bolsters the conviction that the Legislature intended to hold public officials liable for their discriminatory acts without regard for official immunity.

6: Vicarious Official Immunity [A-427]

Defendants were stripped of vicarious immunity via the malicious acts of building inspector John Gulland, trespassing by Jeffrey Juntunen and John Gulland, and a failure to follow the ministerial, and day-to-day (operational level) duties of both.

Respond eat superior is a common law doctrine under which an employer may be vicariously liable for the torts of an employee under the course and scope of employment. Fahrendorff v. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999).

In its claim of official immunity, the city has not distinguished its liability from the liability of the officers. See Pletan v.Gaines, 494 N.W.2d 38, 42-43 (Minn.1992) (no bright-line rule defines when vicarious official immunity extends to the governmental employer).

7: Statutory Immunity [A-422 –A-426]

Statutory immunity does not extend to acts absent of good faith or those involving malice. Similarly, statutory immunity is lost when there is the failure to perform operational (day-to-day) and/or ministerial duties.

The Defendants argue that they are entitled to Statutory Immunity as ruled In Universal Circuits, Inc., et al., v. City of Maple Grove, (Minn. 1996). However, in Universal Circuits the court did not undertake the argument that the city acted outside its allowed discretion in the decision-making process as Plaintiffs are alleging. The Defendants have taken Circuits too broadly in its defense. In Plaintiffs case, it was Defendant Gulland that denied GREB during the initial discussions and designed the rules, along with Defendant Grace, that would result in a building permit. Nearly everything from Defendant Gulland was kept verbal, despite numerous requests by Plaintiffs that orders be put in writing. Defendant Gulland created the variables that would result in a building permit, even though he intentionally delayed issuing building permits until intervention by the MN Department of Labor each time. By steering Plaintiffs, Defendant Gulland assumed a duty to them. In Circuits the arguments are based just on the issuance of building permits and certificates and their interpretations, after the fact. It fails to go into the ministerial and operational level duties involved in the performance of a building inspector’s duty up to and including the final issuance of a certificate of occupancy or building permit. Immunity is limited to discretionary conduct done in good faith and is not applicable to ministerial conduct. Spring Lake Park, 580 N.W.2d at 23. The legislature did not intend to protect municipalities through immunity, for the failure to perform ministerial and operational level duties. This intent also included liability for discretionary duties performed in bad faith or malice.

"And because the actions at issue were ministerial, for which official immunity does not apply, the district court did not err by finding that appellants are not entitled to vicarious official immunity." Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants State of Minnesota in Court of Appeals, A08-1580 (August 11, 2009).

Minn. Stat. § 586.09 is an “applicable statute” which defeats defendants statutory immunity claim pursuant to three enumerated exceptions—discretionary acts, execution of a valid or invalid ordinance, and no loss of property, personal injury, or death – none of these apply in this case.

8: Qualified Immunity [A-427 – A-431]

The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is not legally reasonable to violate a known right (trespass) and so many Minn. Statutes and Rules. Trespass is an intentional tort and dismisses all claims to immunity. Defendants, given their years of experience and training, knew better than to trample numerous, unambiguous statutes, rules, and constitutional rights. Any building inspector or fire chief, given the same training, years of experience, and knowledge of ministerial/operational duties, would not reasonably disregard the most basic rights of individuals.

The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U. S. 800 (1982), is that "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences.'" This case, as proven within the record and the censuring of Gulland shows that clear established rights were implicated and would not be in the interest of the public to ignore.

Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate. . . . " Id. at 457 U. S. 819 (emphasis added). This is as true in matters of national security as in other fields of governmental action. The District Courts’ ruling that the disputed duties are “discretionary” fails to acknowledge the guiding statutes, rules, building codes, and Constitution. The summary judgment ruling by the District Court is basically a claim to “sovereign immunity,” when immunity, in this matter, can only be granted, upon a showing that the duties in question are discretionary, done in good faith, and without malice. The Defendants offered no evidence to show good faith, lack of malice, or that the duties were discretionary. Their whole case rested on the premise of “immunity” based on discretionary duties.

Qualified immunity sufficiently protects the legitimate needs of public officials, while retaining a remedy for those whose rights have been violated.

9. Gross Negligence

Intentional torts, such as trespass, are subject to liability (Minn. R. 1300.0110, Subp. 7 and 9) [A-66 - A-67]. Personal injury is also possible via Minn. Stat. § 3.736 Tort Claims.

Both Gulland and Grace failed to use that degree of care that a reasonable and prudent person would under like circumstances. Negligence, under the law of some states, is proved simply by the violation of some statutes. In others, it requires more than this and must breach the "reasonable" under the circumstances. Defendants have acted with negligence and failed to be reasonable as defined by case law.

Defendants failed to exercise the degree of care rendered appropriate by the particular circumstances and that of an individual of ordinary prudence in the same situation and with equal experience. The intentional failure to perform a manifest duty affecting the life or property of another constitutes “gross negligence.”

Limited by several enumerated exceptions, “every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.” Minn. Stat. § 466.02 (2008) (emphasis added). Thus, section 466.02 specifically states that, absent a statutory exception found in subsequent sections of the statute, municipalities are liable for their torts. The MN DOLI investigation shows a failure to meet the statutory exceptions under Minn. Stat. § 466.03, Subd. 5, 8, and 10. Although the statute does not define “tort,” a tort is “[a] civil wrong . . . for which a remedy may be obtained, usu[ally] in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.” Black’s Law Dictionary 1526 (8th ed. 2004).

The plain language of the MTCA establishes that it applies to tort actions, and had the legislature intended the MTCA to apply to causes of action other than in tort, it would have said so. See Minn. Stat. § 645.19 (2008) (stating that statutory provisions are read to limit rather than extend operation of clauses to which they refer). Because mandamus is a separate and distinct cause of action, defendants cannot seek immunity protection pursuant to the MTCA.

Because the legislature modified the common-law mandamus action to include the automatic award of damages, we presume that it did so specifically to permit a private party to recover damages from government entities. Throughout the advent of statutory-immunity law, there has been no cross-reference between immunity statutes and the damages provision in the mandamus statute, and at no time has the Minnesota Supreme Court held that government entities are immune from damages that have been awarded under the mandamus statute. Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants.

Punitive Damages are available against individual state actors upon a showing that the conduct was “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade 461 U.S. 30, 56, 75 L. Ed. 2d. 632, 103 Sup. Ct. 1625 (1983).

The Federal Tort Claims Act provides in part that "The U.S. shall be liable...relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." Even when suit against the government or agency is unavailable, actions may be taken against the individual officers who committed the wrong. Such suits, generally, may be based on common law principles of liability, various civil right statutes, or the Constitution itself. The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84).

Torts include the intentional infliction of mental distress, trespass to land and personal property, fraud, libel, nuisance, negligence, recklessness, and invasion of privacy.

The clear cause of action for gross negligence is the MTCA, Minn. Stat. § 466.02, and the FTCA.

(“If liability is premised upon the negligent performance (or non-performance) of a ministerial duty imposed by law or government policy, then immunity will not apply.”). Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002) (stating, “[A] state employee who ‘fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty.’ ”) (citation omitted).

10. Unaddressed Claims

Summary judgment proceedings did not address claims of Deliberate Indifference [A-401 – A-402], Section 1983 [A-406 – A-407], Section 1985 [A-407 – A-409], Tortious Interference [A-410], Fraud [A-411 – A-415], Perjury, Fourth Amendment [A-415 – A-420], Fifth Amendment [A-422], and the Fourteenth Amendment [A-421 – A-422].

Fourth Amendment and Section 1983 claims were made in Plaintiffs Summons and Complaint and is not a new claim. This case was supposed to have a scheduling hearing to determine time frames for dispositive and non-dispositive motions, but was postponed pending the summary judgment motion. New claims may be made at the hearing, and may be accepted by the judge, especially when they are relevant, as they were in this case.

The major purpose of Section 1983 is to provide a tangible legal remedy in the form of an injunction, monetary damages, as well as the recovery of attorneys’ fee for the violation of constitutional rights by government, government officials, administrators, and employees. The “tort” element of the legal wrong includes the recovery of compensatory, emotional distress, and punitive damages. Section 1983 liability punishes only purposeful “deprivations” of constitutional rights. The Supreme Court case of City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) described a “policy” of “deliberate indifference” to citizens rights as a purposeful deprivation of a constitutional right. Deliberate indifference can be demonstrated when managers and supervisors knew of, or should have know of, frequent constitutional violations, but nonetheless allowed their subordinates to act without any rehabilitative warnings, discipline, or training.

This particular case shows knowledge by Thomson Township officials that constitutional violations had occurred, and through admissions, no one received discipline of any kind [A-26, Adm. 26, 66; A-194, 7]. Likewise there was no showing of rehabilitative warnings or training. The MN DOLI disciplined Defendant Gulland for his statutory violations as they occurred within their jurisdiction, but did not address those outside of Minnesota Building Codes. That was left to Thomson Township officials who simply ignored the pleas of its citizens. Thomson Township admitted they did not have any job description detailing duties of fire chief [A-189], nor that of state fire marshal, or Town Board Supervisor [A-190, 18]. Thomson Township has no documentation showing Duane Grace's duties [A-193, 3; A-194, 6]. Defendant Juntunen admitted that notes weren't kept for fire orders for Plaintiff's building [A-217].

Deliberate indifference is defined as the conscious or reckless disregard of the consequences of one’s acts or omissions [A-402].

Section 1983 attaches when a deliberate choice to follow a course of action is made from among various alternatives by the officials or officials responsible for establishing final policy with respect to the subject matter in question. Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986). This case shows that local government and employee liability can attach to even a single decision to take unlawful action in accordance with a policy established by a single local government policy-maker. Defendants Gulland and Juntunen chose to make entry to Plaintiffs building via trespass rather to seek entry legally.

CONCLUSION

The Defendants violated numerous exceptions to immunity by failing to perform the required ministerial and operational duties. Exceptions to immunity were clearly intended to provide relief and recourse to those injured by the malicious and willful acts of building inspectors and fire chiefs. The defendants also failed to perform their discretionary duties in good faith and reasonable care.

The Defendants colluded to prevent Plaintiffs from the reasonable time period in which a building permit could be obtained. They drug out the review process, refused to follow GREB, failed to allow exceptions for Existing Buildings, and failed to issue a building permit after the review process was completed until the intervention of the MN DOLI each time. Thomson Township turned a blind eye to the problem, exacerbating the situation. Their attorney blatantly interfered with the discovery process, dared Plaintiffs to sue, and promised information he never delivered.

The discovery process was wrought with late admissions, contradictory answers, and blatant admissions made contrary to evidence. There were numerous attempts made to get information via formal and informal discovery that were buried in legalese, omission, and obstructions. This may be popular legal strategy, but in this case it leaves many questions and genuine issues of material fact for trial. The many opposing positions Defendants took on discovery attempts proved futile and deserves to be addressed at trial in front of a jury that can witness the same.

The Defendants made no case other than they have immunity for any action taken. The party asserting immunity has the burden of showing that it is entitled to the immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). Summary judgment is “inappropriate when reasonable persons might draw different conclusions from the evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). The defendants simply stood behind their basic right to immunity as public officials and those working for them. The burden of proof that the duties, censured by the MN DOLI, and other duties in contention, simply weren’t proven to be discretionary. One of the controlling issues of this case was whether the duties being disputed were discretionary or ministerial/operational level duties. Recording inspections, putting orders in writing, and similar job duties play no role in the discretion of building inspectors deciding what provisions of the State Building Code apply. Ministerial/Operational duties are clearly distinctive from discretionary ones where independent judgment is used. The defendants didn’t provide any proof they were discretionary and entitled to immunity. The MN DOLI disciplined Gulland for duties it considered ministerial and violations of applicable statutes.

Several genuine issues as to material facts remain that entitle plaintiffs the right to a jury trial. These include: trespass; civil right violations; negligence; ambiguity; malice; and intentional tort. Summary judgment hinges in part on whether the case, on the merits, makes a claim that is sham or there is no real defense. There are strong claims of defense in this case and summary judgment must fail. Similarly, summary judgment rests in part on the claim being defective. That cannot be said without first determining the ministerial duties of the defendants. All duties involved with the issuance of building permits and fire inspections are not discretionary. If they were, you could simply throw out every statute and provision of the State Building Code and let each individual inspector decide what should or shouldn’t be done in the pursuit of a building permit. Reasonable men would very likely differ as to the result derived by the District Court. Summary judgment may be properly denied if the court finds there is an issue as between the theories.

There was no evidence from Defendants that their actions were proven discretionary or done in good faith. As the moving party, they have the burden of substantiating their claim for immunity. The facts clearly show that the MN DOLI did not consider the acts of Defendant Gulland reasonable by censuring him, and those same acts were similarly done by Defendant Grace. The facts alleged by plaintiffs support a claim of violation of clearly established law.

Intentional tort and negligence claims are soundly established in this case, and deserve to be tried at jury trial. The facts in this case were clearly in dispute and deserve a denial of summary judgment.

"The judgment sought [in a summary judgment motion] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.Rule Civ.Proc. 56(c).

Cases in which the official did violate a clearly established legal norm should proceed as expeditiously as possible to trial.

An appellate court is best able to decide whether given conduct was prohibited by established law if the record in the case contains a full description of that conduct. See Kenyatta v. Moore, 744 F.2d 1179, 1185-1186 (CA5 1984).

Appellants request this matter be remanded to District Court with instructions to proceed to jury trial on all matters.

Respectfully submitted,

/s Marvin Pirila

PIRILA & FRANCETTE

By Marvin Pirila

Pro Se - Appellant

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

APPENDIX AND INDEX

On-Site Inspection Card………………....…………...1

Greg Hallback Letter (1/20/10)……………………2-4

Minnesota Department of Labor & Industry Investigation.........................................................5-15

Stop Work Order.......……………………………..16-18

Defendants (Except Grace) Response to Plaintiffs’ First Request for Admissions (Revised)..............9-36

Defendant Duane Grace’s Response to Second Request for Admissions…………………............37-41

Defendant Duane Grace’s Email to Hallback and Gulland..............…………………………………..44-45

Greg Hallback Letter (5/17/07)….…...…………46-49

Tom Pertler Fax (8/10/10)……………………….50-54

Tom Pertler Fax (7/21/10)……………………….55-63

Town of Thomson Police Department Complaint...

............................................................................64-65

Duties and Powers of Building Inspector….…66-69

1322.1101 IRC Section N1101…………………......70

John Gulland’s Answers to Plaintiffs’ Interrogatories...................................................71-78

Thomson Township Meeting Minutes – Plumbing Inspection (8/1/08).............……………………...79-80

John Gulland Letter (8/1/08)……………………81-82

Barry Greive, MN DOLI, Email (5/13/09)………...83

Alan Adams email (Architect) (6/17/09)…………...84

Barry Greive email (8/17/09)………………………..85

Minnesota Rule 1300.0210 Inspections.…………..86

Letter from Thomson Township (Pritchett) (9/5/08)

..................................................................................87

Letter to Pritchett (9/9/08)……………...…….…88-91

Greg Hallback email (12/4/07)………………….92-93

Letter from Duane Grace (12/19/07)…………..94-96

Greg Hallback email (1/15/08)………………….97-99

Building Permit (2/11/08)…………………………100

Association of MN Townships printout…………101

Defendants Response to Plaintiffs’ Request for Documents, Set I………………………............102-111

Minn. R. 1300.0110 Duties & Powers of Building Official........................................................….112-113

Greg Hallback Letter (5/15/07)……………………114

Mark Blomquist Statement regarding entry by Juntunen................................................................116

Duane Grace email (12/15/08)….………………….117

Duane Grace email (2/2/09)………………………..118

Duane Grace email (1/28/09)………………………119

Gail Francette email (12/15/08)………….......…...120

Duane Grace (12/18/08) regarding Load Occupancy

................................................................................121

Pritchett Letter regarding Notice of Claim..122-123

Greg Hallback regarding Occupancy Load (12/28/08)........................................................124-127

Greg Hallback email (12/29/08)....………………..128

Order and Memorandum of Court (12/29/10)............

.........................................................................129-134

Summons and Complaint (3/16/10)……….…135-149

Defendant Grace’s Memorandum of Law in Support of his Motion for Summary Judgment (9/13/10)…....

.................................................................…....150-166

Duane Grace’s Experience Summary (LinkedIn)......

.........................................................................167-169

Affidavit of Duane Grace.………………..…..171-174

Thomson Township’s Answers to Interrogatories

..................................................................…175-183

Defendants (Except Grace) Supplemental Response to Plaintiffs’ Request for Production of Documents, Set 1..........……………………………………..184-186

Response to Plaintiffs’ Request for Production of Documents, Set ..................…………………..187-190

Defendant Duane Grace’s Responses to Plaintiffs Request for Production of Documents, Set I............. ...……………....................................................191-198

Defendant Duane Grace’s Answers to Complainant’s Interrogatories......................199-214

Fire Chief Jeffrey Juntunen’s Answers to Plaintiffs’ Interrogatories…………………......................215-221

Affidavit of John Gulland………………………………………….222-229

Defendant Duane Grace’s Response to First Request for Admissions…………...............…230-269

Depositions of Plaintiff’s……………………...270-313

Notice of Claim………………………………....314-335

Admissions by Grace made contrary to facts….........

.........................................................................336-346

Plaintiffs’ Memorandum of Law in Opposition to Summary Judgment (10/1/10)………............347-432

Defendants Memorandum in Support of their Motion for Summary Judgment (9/10/10).....433-458

Proposed Order and Memorandum of Defendants for Summary Judgment………………...........459-482

Defendants Reply Memorandum in Support of their Motion for Summary Judgment…….............483-488

Defendant Grace’s Response to Plaintiffs’ Request for Documents, Set 2………………………..................

Defendants Response to Plaintiffs’ Second Request for Admissions……………………................................

Notice of Appeal……………......……....……………….

APPENDIX C

______________________

Decision of State Trial Court/Plaintiffs' Memorandum of Law in Opposition to Summary Judgment

___________ _

Court File Number: 09-CV-10-934

___________ _

TABLE OF CONTENTS

Page

Decision of State Trial Court (Dec. 29, 2011)….99-a

Plaintiffs’ Memorandum of Law in Opposition to

Summary Judgment……………………………..107-a

State of Minnesota District Court
Carlton County Sixth Judicial District

Court File Number: 09-CV-10-934
Case Type: Personal Injury

Notice of Filing of Order

MARVIN PIRILA & GAIL FRANCETTE
1 N CLOQUET RD

ESKO MN 55733

________________________________________________

Gail Francette, Marvin Pirila vs Duane Grace, John Gulland, Jeffrey Juntunen, Thomson Township, Thomson Township Fire Department

You are notified that an order was filed on this date.

Dated: December 29, 2010

                                    Judith Isaacson
                                    Court Administrator
                                    Carlton County District Court
                                    PO Box 190
                                    Carlton Minnesota 55718
                                    218-384-4281

cc:

STEPHANIE ANNE ANGOLKAR
MICHAEL JOSEPH MCNAMARA

A true and correct copy of this notice has been served by mail upon the parties herein at the last known address of each, pursuant to Minnesota Rules of Civil Procedure, Rule 77.04

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF CARLTON SIXTH JUDICIAL COURT

Marvin Pirila and FILED

Gail Francette, DEC 29, 2010

Plaintiffs, JUDITH ISAACSON

Court Administrator

vs. Carlton County, MN

ORDER

John Gulland, Jeffrey Juntunen,

Thomson Township,

Thomson Township Fire Department,

Duane Grace,

Court File No. 09-CV-10-0934

Defendants,_____________________________

The above matter came before this Court on October 14, 2010 pursuant to motions by defendants for summary judgment. The plaintiffs appeared pro se. Defendants John Gulland, Jeffrey Juntunen, Thomson Township and Thomson Township Fire Department (township defendants) appeared through counsel, Stephanie A. Angolkar. Appearing on behalf of defendant Duane Grace was Michael J. McNamara. At the hearing, plaintiffs dismissed all claims against defendant Thomson Town ship Fire Department. After hearing argument from counsel and the plaintiffs the matter was taken under advisement.

Upon the files, records, and proceedings held herein, now therefore, the Court makes the following:

ORDER

1. The plaintiffs' motion to dismiss the Thomson Township Fire Department is hereby GRANTED and all claims against this defendant are dismissed.

2. The motion for summary judgment by defendants John Gulland, Jeffrey Juntunen and Thomson Township is hereby GRANTED and all claims against them are dismissed.

3. The motion for summary judgment by defendant Duane Grace is hereby GRANTED and all claims against him are dismissed.

4. The attached Memorandum is incorporated into this Order.

BY THE COURT:

Dated: Dec 28th 2010 /s Dale A. Wolf
Honorable Dale A. Wolf

Judge of District Court

I hereby certify that the above order constitutes the judgment of this Court.

/s M Anderson

Dated: 12/29/10 Deputy Court Administrator

MEMORANDUM

This case arises from plaintiffs' renovation of the former Thomson Township town hall and their interactions with Township officials during the process. Plaintiffs assert a myriad of claims including trespass, negligence, fraud, intentional misrepresentation, various violations of Minnesota Statues and Rules, and a claim pursuant to 42 USC § 1983. The township defendants, in moving for summary judgment, assert that they are entitled to the protection of official, statutory, and qualified immunity and that the statutes and rules cited by plaintiffs do not provide a private cause of action. Defendant Duane Grace also seeks summary judgment and maintains that plaintiffs have not stated a cognizable tort claim against Mr. Grace, that the claims are barred by statutory and official immunity, and that plaintiffs have failed to state a cognizable claim under Minnesota Statutes and Rules.

Summary judgment is warranted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, "show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R.Civ.P. 56.03. Summary judgment is "inappropriate when reasonable persons might draw different conclusions from the evidence presented." DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). The party moving for summary judgment "has the burden of proof and...the nonmoving party has the benefit of that view of the evidence which is most favorable to him." Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955).

Minnesota's Tort Claims Act allows a municipality, such as Thomson Township, to be held liable for the torts of its officials, subject to certain exceptions. See Minn. Stat. § 466.02. One such exception grants immunity from claims "based upon the performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03, subd. 6. The applicability of governmental immunity is a question of law. Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004). Summary judgment is appropriate when a governmental entity has established that its actions are immune from civil liability. Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995).

Discretionary functions or acts involve "the exercise of individual judgment in carrying out the official duties." Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). Here, there is no dispute that Thomson Township is a municipality, that John Gulland is the Thomson Township building official, that Jeffrey Juntunen is the Thomson Township fire chief, and that Duane Grace is a building & fire codes consultant/building code plan reviewer who was hired by Thomson Township. It is well settled law that the issuance of building permits are discretionary acts. Anderson v. City of Minneapolis, 287 Minn. 287, 289, 178 N.W.2d 215, 217 (1970); Masonick v. J.P. Homes, Inc., 494 N.W.2d 910, 913 (Minn. App. 1993). In addition, decisions regarding the deployment of firefighting resources have also been held to be a discretionary act. Invest Cast, Inc. v. City of Blaine, 471 N.W.2d 368, 371 (Minn. App. 1991), review denied (Minn. Aug 1, 1991). As such, Thomson Township, John Gulland, Duane Grace and Jeffrey Juntunen are entitled to statutory immunity.

Plaintiffs have also alleged that they were damaged the Court will not address those claims through the violation of various Minnesota Statutes and Rules. In addition, plaintiff allege damages through a violation of 42 USC § 1983 when defendant's Gulland and Juntunen entered their unoccupied property¹. The common

law doctrine of official immunity shields a public official from liability when the official is "charged by law with duties which call for exercise of his judgment or discretion...unless he is guilty of a willful or malicious wrong." Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quotation omitted). Official immunity serves to protect "public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties." Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997). Official immunity does not apply if an official's acts are certain and imperative, involving merely execution are ministerial. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d

___________________________
¹Plaintiffs have also attempted, through their response to defendants' motions for summary judgment, to add additional constitutional claims. Because plaintiffs have not sought, nor has the Court granted, permission to amend their complaint pursuant to Minn.R.Civ.P. 15.01, official's acts are 651, 655 (Minn. 2004). Ministerial acts are those that are "absolute, of a specific duty arising from fixed and designated facts." Watson v. Metro. Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996) (quotation omitted).

Here, the officials were all performing discretionary acts and there is no evidence that they acted maliciously. As such, they are protected from liability by official immunity. Because the building officials and fire chief are protected by official immunity, Thomson Township is not vicariously liable for their actions. See Id. at 414.

D.A.W.
STATE OF MINNESOTA

SIXTH JUDICIAL DISTRICT

COUNTY OF CARLTON

DISTRICT COURT

CASE TYPE: CIVIL LAWSUIT

FILE NUMBER: 09-CV-10-934

Marvin Pirila & Gail Francette

PLAINTIFFS

VS.

Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, JEFFREY JUNTUNEN

DEFENDANTS

___________________________________________
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO SUMMARY JUDGMENT

TO: Defendants Thomson Township, Thomson Township Fire Department, John Gulland, and Jeffrey Juntunen, represented by Iverson-Reuvers, 9321 Ensign Avenue South, Bloomington, MN 55438.

STATE OF MINNESOTA

SIXTH JUDICIAL DISTRICT

COUNTY OF CARLTON

DISTRICT COURT

CASE TYPE: CIVIL LAWSUIT

FILE NUMBER: 09-CV-10-934

Marvin Pirila & Gail Francette

PLAINTIFFS

VS.

Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, JEFFREY JUNTUNEN

DEFENDANTS

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO SUMMARY JUDGMENT

INTRODUCTION

Defendants have failed to substantiate their claim for dismissal via Summary Judgment. There are numerous items that can only be resolved via a jury trial; therefore Plaintiffs request a dismissal of Summary Judgment.

STATEMENT OF THE ISSUES

I. IS THE THOMSON FIRE DEPARTMENT AN ENTITY SUBJECT TO SUIT?

II. HAVE PLAINTIFFS FAILED TO ESTABLISH A COGNIZABLE TORT CLAIM?

III. ARE PLAINTIFFS’ CLAIMS BARRED BY STATUTORY IMMUNITY?

IV. ARE PLAINTIFFS’ CLAIMS BARRED BY OFFICIAL IMMUNITY?

V. ARE PLAINTIFFS’ CLAIMS AGAINST THE TOWNSHIP BARRED BY VICARIOUS OFFICIAL IMMUNITY?

VI. ARE PLAINTIFFS’ CLAIMS BARRED BY QUALIFIED IMMUNITY?

VII. DO PLAINTIFFS’ PURPORTED VIOLATIONS OF MINNESOTA RULES OR STATUTES FAIL TO STATE A CLAIM?

STATEMENT OF DOCUMENTS

Affidavit of Marvin D. Pirila (October 1, 2010) with the following documents:

1. Exhibit 1: November 1, 2006, Warranty Deed, Legal Description, and Restrictive Covenants

2. Exhibit 2: March 22, 2007 Fax from Greg Hallback (Designer) to Defendant Gulland

3. Exhibit 3: Minnesota Department of Labor & Industry: September 1, 2009, MN DOLI Conclusion Letter; September 29, 2009, Consent to Order of Entry; September 30, 2009, Consent Order

4. Exhibit 4: February 15, 2007, stop work order; February 12, 2007, letter from Defendant Gulland; and February 16, 2007, letter by Thomson Township

5. Exhibit 5: September 16, 2008, email from Greg Hallback to Marvin Pirila; January 20, 2010, email from Hallback to Pirila.

6. Exhibit 6: December 4, 2007, Greg Hallback letter to Duane Grace and John Gulland; September 16, 2008, notes form meeting at Thomson Town Hall.

7. Exhibit 7: December 16, 2007, Greg Hallback letter to Plaintiffs and John Gulland; October 27, 2007, Duane Grace email to Greg Hallback and John Gulland; May 29, 2008, Duane Grace email to Greg Hallback; July 8, 2008, meeting minutes; July 2, 2008, Greg Hallback email to John Gulland; May 15, 2007, Greg Hallback email to Plaintiffs and John Gulland.

8. Exhibit 8: May 21, 2007, Greg Hallback email to John Gulland.

9. Exhibit 9: February 13, 2009, Duane Grace email to Greg Hallback and Alan Adams; Admissions, First Set, Defendant Grace, PP. 27-28, Adm. 206-222.

10. Exhibit 10: Defendants Thomson Township, Thomson Township Fire Department, John Gulland and Jeffrey Juntunen’s Response to Plaintiffs’ First Request for Admissions (Revised).

11. Exhibit 11: January 20, 2010, Greg Hallback email to Plaintiffs.

12. Exhibit 12: May 15, 2007, email from Designer Hallback to Defendant Gulland

13. Exhibit 13: March 22, 2007, Greg Hallback fax to John Gulland; Relevant portions of the “2003 International Existing Building Code” and the “2003 IBC Second Edition;” and Page 542 of the 2006 International Building Code, Section 3406, Change of Occupancy, Existing Buildings

14. Exhibit 14: January 20, 2010, Greg Hallback email to Plaintiffs; May 26, 2010, Duane Grace Response to First (Truly 2^nd) Request for Admissions.

15. Exhibit 15: May 13, 2009, email from Plaintiffs to Barry Grieve [MN DOLI Investigator]; April 2, 2009, Letter of Occupancy from Defendant Gulland to Plaintiffs; August 1, 2008, Attorney Pritchett to Plaintiffs; June 16, 2009, email to Architect Adams; and September 28, 2010, statement by Contractor Mark Blomquist; August 10, 2010, Fax from Plaintiffs to Tom Pertler, County Attorney; July 21, 2010, Fax to Tom Pertler from Plaintiffs; June 24, 2010, Criminal Complaint file with Town of Thomson Police Department.

16. Exhibit 16: August 1, 2008, Meeting Minutes of Plumbing Inspection; John Gullands’ Answers to Plaintiffs’ Interrogatories; June 17, 2009, email from Plaintiffs to Architect Adams; June 13, 2009, email from Plaintiffs to MN DOLI’s Barry Greive; August 17, 2009, email to Architect Alan Adams; Minn. R. 1300.0210 Inspections; Minnesota Rules, Chapter 1322, Residential Energy Code, 1322.110 IRC Section N1101, General, Exceptions, P. 3.

17. Exhibit 17: August 1, 2008, Meeting Minutes of Plumbing Inspection; September 5, 2008, letter from Attorney David Pritchett to Plaintiffs; September 9, 2008, letter from Plaintiffs to Thomson Township Attorney David Pritchett; John Gullands’ Answers to Plaintiffs’ Interrogatories; June 17, 2009, email from Plaintiffs to Architect Adams; May 13, 2009, email from Plaintiffs to MN DOLI’s Barry Greive, August 17, 2009, email to Architect Alan Adams, and Minn. R. 1300.0210 Inspections.

18. Exhibit 18: December 4, 2007, Designer Hallback letter to Defendants Grace and Gulland; December 19, 2007, Defendant Grace email to Defendant Gulland and Designer Hallback; January 15, 2008, email to Designer Hallback, February 11, 2008, Building Permit.

19. Exhibit 19: January 14, 2009, email from Defendant Juntunen to Defendant Thomson Township and several volunteer and paid fire fighters.

20. Exhibit 20: Minnesota Association of Townships policy regarding rights to information; Defendants Thomson Township, Thomson Township Fire Department, John Gulland and Jeffrey Juntunen’s Response for Production of Documents, Set I; Plaintiffs Request For Production of Documents, Set.

21. Exhibit 21: Defendants Thomson Township, Thomson Township fire Department, John Gulland and Jeffrey Juntunen’s Response to Plaintiffs’ Request for Production of Documents, Set 1.

22. Exhibit 22: Copy of attorney fees (Ex. B, PF 643-646), court filing fees (Ex. B, PF 646-647), mortgage calculator projections (Ex. B, PF 650-655, 667-668), insurance costs (Ex. B, PF 666), design costs (Ex. B, PF 670-671, 710-744, 751).

23. Exhibit 23: Not Applicable

24. Exhibit 24: December 15, 2008, Defendant Grace email to Designer Hallback; December 15, 2008, Defendant Grace email to Plaintiffs and Designer Hallback; January 28, 2009, Defendant Grace email to Architect Adams; February 2, 2009, Defendant Grace email to Plaintiffs and Designer Hallback; February 2, 2009, Defendant Grace email to Architect Adams and Designer Hallback.

25. Exhibit 25: Personal notes of Plaintiff Pirila taken as he pursued the right to view his building record file at Thomson Township.

26. Exhibit 26: Requests for Information from: Defendant Thomson Township – January 9 and 12, 2010, Tim Boettcher – January 11, 2010, Glen Gist - January 13, 2010, Brent Pykonnen – January 13, 2010, Defendant Juntunen – January 13, 2010, Thomson Township Attorney David Pritchett - September 9, 2008, and January 14, 2010, Defendant Gulland - January 14, 2010, Dan Pollema - January 20, 2010, Defendants counsel Iverson-Reuvers – April 21, 2010.

27. Exhibit 27: Minn. R. 1300.0110

28. Exhibit 28: December 3, 2008, Plaintiff Francette email to Defendant Gulland; December 4, 2008, Plaintiff Pirila email to Defendant Grace; and December 6, 2008, Plaintiff Francette email to Defendant Gulland.

29. Exhibit 29: December 18, 2008, email from Defendant Grace to Defendant Gulland

30. Exhibit 30: January 15, 2010, letter from Thomson Township Attorney David Pritchett to Plaintiffs

31. Exhibit 31: Relevant portions of Defendants Documents, First Set, Thomson Township, etc., Ex. A, TH 345, 390, 392-404, 453.

32. Exhibit 32: Plaintiff Pirila’s medical records from 2006 to present time (Ex. B, PF 600 -642)

Attached documents relevant to memorandum.

1. Exhibit A: Thomson Township/Thomson Township Fire Department/John Gulland/Jeffrey Juntunen) Submissions for Request for Documents [TH 1 – TH 1110] list

2. Exhibit B: Attached is a true and correct copy of Plaintiffs Documents [PF 1 – PF 705]

3. Exhibit C: Defendant Duane Grace’s Answers to Complainant’s Interrogatories, signed July 23, 2010.

4. Exhibit D: Fire Chief Jeffrey Juntunen’s Answers to Plaintiffs Interrogatories

5. Exhibit E: John Gulland’s Answers to Plaintiffs’ Interrogatories

6. Exhibit F: Affidavit of Jeffrey Juntunen, signed September 7, 2010

7. Exhibit G: Affidavit of John Gulland with attachment, signed September 9, 2010

8. Exhibit H: Affidavit of Duane Grace, signed September 10, 2010

9. Exhibit I: Affidavit of Rhonda Peleski, Signed September 7, 2010, with exhibits

10. Exhibit J: Defendants Thomson Township, Thomson Township Fire Department, John Gulland and Jeffrey Juntunen’s Response to Plaintiffs’ First Request for Admissions (Revised).

11. Exhibit K: Defendant Duane Grace’s Response to Request for Admissions

12. Exhibit L: Not Applicable

13. Exhibit M: Deposition Transcript of Gail Francette

14. Exhibit N: Deposition Transcript of Marvin Pirila

15. Exhibit O: January 20, 2009, Official Communications Folder created by Greg Hallback

16. Exhibit P: Thomson Township Fire Department’s Answers to Interrogatories, signed by Jeffrey Juntunen on August 19, 2010.

17. Exhibit Q: Thomson Township’s Answers to Interrogatories, signed by Rhonda Peleski on August 20, 2010.

18. Exhibit R: Defendants Thomson Township, Thomson Township Fire Department, John Gulland and Jeffrey Juntunen’s Supplemental Response to Plaintiffs’ Request for Production of Documents, Set 1.

19. Exhibit S: Not Applicable

20. Exhibit T: Not Applicable

21. Exhibit U: Defendant Duane Grace’s Responses to Plaintiffs’ Request for Production of Documents, Set I

STATEMENT OF UNDISPUTED FACTS

Plaintiffs bought the property at 1 N Cloquet Rd W in Esko, MN, from Thomson Township in 2006. Affidavit of Marvin Pirila,¶3, Ex. 1. The Plaintiffs immediate plans for the building were to rent the gymnasium as Thomson Township had prior to the purchase, and move into the upstairs of the Main Building and use it as their residence. Aff. Pirila, ¶4, Ex. 2. The plans for the rest of the rooms were initially apartments. Id.

Shortly after assuming ownership, building inspector John Gulland issued a stop work order February 15, 2007. Aff. Pirila, ¶6, Exs.4 & 10. Defendant Gulland had not made a single inspection. Aff. Pirila ¶6. After Mr. Gulland’s Stop Work Order, Plaintiffs hired Designer Greg Hallback, in March 2007, to design and instruct them on building codes. Id. ¶7.

Defendant Grace had a duty to Plaintiffs, Thomson Township, and Defendant Gulland, to derive the right building codes. Aff. Pirila, ¶98; Depo., Pirila, 143:23-25. Defendant Grace admittedly takes a portion of building permit fees as payment for his services. Aff. Pirila, ¶98. These permit fees were paid by the Plaintiffs and is paid with the premise of a building permit that has been properly issued. Id. Defendant Grace has a professional obligation to stay current on building and fire codes, review them with due diligence, and with reasonable care. Id. These are the duties that Plan Reviewer and Defendant Grace assumed as a duty to Plaintiffs when agreeing to conduct the plan review. Id. There is no law excusing the failure to act in good faith, due diligence, and with a reasonable degree of care. Id.

Improper Denial of Gym Use: The first correspondence from Designer Hallback to Defendant Grace was by fax on March 22, 2007, and discussed the designation of each phase. Aff.Pirila, ¶15, Ex. 13. The gym, Mr. Hallback, argued should not require a building permit and would simply need some cosmetic work. Id. Mr. Hallback argued that there was no reason the gym couldn’t continue to be used just as Thomson Township had used it. Id, Depo., Pirila, 34:23-25, 35:1-3, 77:12-22. Defendant Gulland offered no objections to Mr. Hallback’s assessment and the project proceeded as outlined. Aff. Pirila, ¶15. Later on, and only verbally, Defendant Gulland stated that the gym would have to meet current codes, which at the time were the 2003 Minnesota Building Codes, including energy and accessibility, before it could be used for any purpose. Id. Both plaintiffs and Mr. Hallback argued for the use of GREB, but Mr. Gulland insisted that a “change in ownership constituted a change in use” and subjected the gymnasium to current codes, and not GREB. Id. See also: Depo., Pirila, 77: 7-22. The MN DOLI would investigate in 2009 and determine that GREB was correct and that energy codes did not apply. Aff. Pirila ¶5, Ex. 3. Minn. R. 1311 was specifically to be used for the project unless an alternate method or code was requested and approved. Id. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110. Minn. R. 1311 is GREB. Id, Nothing in the State Building Code suggests a “change in use” occurs by a “change in ownership.” Id.

The demand by Defendant Gulland that energy codes be applied resulted in the addition of 2x6 interior walls having to be added throughout the building on every exterior wall. Aff. Pirila ¶16, Exs.3 & 14. This directly led to additional costs that included: electrical, plumbing, drywall, and painting. Aff. Pirila ¶16. It also led to great delays in gaining a residence, as well as renting units. Id. As the priority then became the residence, everything was tailored at that point to finish that first. Id. See also: Depo., Pirila, 112:22-25, 113:1-25.114:1-7.

The gym is considered a different portion of the building and Plaintiffs requested to use it exactly as it had been up to the day of purchase. Aff. Pirila ¶17. Defendant Gulland’s claim that that a “change in use” occurred automatically when ownership changed hands was unsupported by the code. Id. The end result was lost use, lower appraisal value, revenues, depreciation, and added to financing difficulties. Id. The depreciation would have assisted the Plaintiffs at tax time, and the revenues would have supported financing from banks. Id.

Minnesota Department of Labor & Industry Investigation: The MN DOLI investigated following a complaint by Plaintiffs regarding delays in the review and permitting process. Aff. Pirila ¶21. Barry Greive, Senior Investigator for the MN DOLI conducted the investigation that culminated in the “censuring” of Defendant Gulland. Aff. Pirila ¶5, Ex. 3.

1. Allowing a building to be constructed without a required fire suppression system is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1305.903.2.7. Id. [An error also made by Defendants Grace and Juntunen]

2. Requiring a structure to comply with the current energy code despite applicable energy code exceptions is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400. Id. [An error also made by Defendant Grace]

3. You were not aware that Minn. R. 1311 was specifically to be used for the project unless an alternate method or code was requested and approved. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110. Id. [An error also made by Defendant Grace]

4. You approved documents showing a code edition that was not adopted by the State of Minnesota. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110. Id. [An error also made by Defendant Grace]

5. Allowing work to continue without first issuing the proper permits is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp.3. Id.

6. Failure to issue all correction orders in writing, is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 4. Id.

7. You did not maintain administrative control over this project, thus allowing others to dictate code compliance. This resulted in confusion and/or delays. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110. Id.

The Department is prepared to issue a Licensing Order regarding the violations outlined above that may include civil penalties up to $10,000 per violation. Id. However, we are willing to allow you an opportunity to resolve this matter on an informal basis. Attached please find a Consent Order, by which you would agree to be censured and take five additional continuing education units in the next 12 months. Id. You would be fined $5,000, though the $5,000 penalty would be stayed conditioned upon your compliance with the provisions of the Consent Order.” Id. See also: Depo., Pirila, 82:24-25, 83:1-19.

Defendant Gulland agreed to the “Consent to Entry of Order” signed by him on 9/29/09. Id.

Energy Code & Crawl Space: Defendant Gulland was censured in part by the MN DOLI for “Requiring a structure to comply with the current energy code despite applicable energy code exceptions is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400.” Aff. Pirila ¶16, Ex.3. Defendant Gulland denies that “he failed to follow Chapter 1322 of the MSBC – Residential Energy Code that addresses exceptions for existing buildings” in Admission 58, First Set. Defendant Gulland ignored Chapter 1322 – Residential Energy Code – exception for existing buildings, Section 1322.1101 IRC Section N 1101, General N1101.1 Scope. Aff. Pirila ¶16, Ex.16. This exception reads: Insulation R-values, air barrier, and vapor retarder requirements are not required for existing foundations, crawl space walls, and basements in existing dwellings….” Id. Exception 3 reads: Additions to existing dwellings or dwelling units may be made without making the entire dwelling or dwelling unit comply…” Id. Exception 4 reads: Alteration or repairs to existing dwellings or dwelling units may be made without making the entire dwelling unit comply…” Id. Defendants Gulland and Grace also ignored these exceptions. Id.

When Defendant Gulland was asked, “Explain why you enforced energy codes that were inapplicable under GREB and a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400,” Defendant Gulland suggested that the Plaintiffs wished to create an energy-efficient building. Aff. Pirila ¶8, Ex. 6. It was only after Defendant Gulland argued that Plaintiffs building would have to be treated as though it was a “new construction” that they indicated their plans to create an energy-efficient building. Id. Defendant Gulland told Plaintiffs energy codes were mandatory, as it would be for a new building, and that meant Plaintiffs had to do a lot of things they wouldn’t have done otherwise. Id. The new walls and insulation would be necessary to meet the energy codes that Defendant Gulland mandated. Id. The truth is that Plaintiffs wanted to expose brick on the interior to preserve some of its historical traits, but energy codes were required covering them. Id.

Defendant Grace insisted that perimeter insulation was required. Aff. Pirila ¶16. This is despite GREB and Section 1322.1101 IRC Section N 1101.1 Exceptions. Id. Defendant Grace denied that Section 2603.4.1.6 was a specific requirement for the crawl space. Id.

Defendants Gulland and Grace declared the area under the main building a crawl space. Defendants Gulland and Grace insisted that the foundation underneath be insulated although that should have been considered technically infeasible. Depo., Pirila, 106:7-10. The discussion of the crawl space only disappeared when the MN DOLI started its investigation. Depo., Pirila, 133:23-25, 134:1-3. These largely irrelevant and technically infeasible discussions, like occupancy loads and crawl spaces, resulted in longer review times. Depo., Pirila, 134:23-25.

Defendant Grace stated in an email on January 9, 2009, “Now some of the requirements of this section [7674.0600] really should not be required of this structure and it is not economical [ly] feasible in that strict compliance would result in expenditures that would never pay back in that man’s lifetime. Aff., Pirila, ¶98. That is why we never will ask someone to dig around the foundation and install insulation to frost design depth.” Id. Considering the great amount of time dedicated to this one item, and the ambiguous nature of the conversation, Defendants Grace and Gulland made something admittedly “technically infeasible” into a costly, delay oriented issue. Id. When the MN DOLI got involved, this issue was dropped. Id.

GREB Request Preceded Designs: In his first correspondence with Defendant Gulland, Designer Hallback argued for GREB for the gym. Aff. Pirila ¶7, Exs. 5 & 13. The gym was the first phase initially, and GREB was requested for it, and the entire project. Id. Designer Hallback was also asking Defendant Gulland to use the 2003 Minnesota Building Codes, giving precedence to the “2003 International Existing Building Code,” for areas that GREB did not apply. Id. Defendant Gulland did not specify any change and Designer Hallback continued with the design plans. Id. Once GREB is requested and is applicable, its use becomes strictly a mandatory and ministerial duty for plan reviewers and building inspectors. Id.

“This project was the remodeling of an existing building and the GREB code ought to have been applied…Greg Hallback.” Aff. Pirila ¶13, Ex.11. “The GREB does make allowances for existing buildings, but John [Gulland] and Duane [Grace] seemed adament against applying it.” Id.

GREB and Provisions for Existing Buildings were requested: Designer Hallback correctly requested the 2003 IBC and GREB at the beginning of the project. Aff.Pirila ¶14,Ex. 12. However, when the 2007 State of Minnesota Building Code (MSBC) was adopted in July of 2007, it replaced the 2003 version. Id. GREB followed along with the newly adopted codes. Id. Neither Defendant Grace nor Gulland can accept the 2003 IBC as it wasn’t the effective and adopted state building code at the time the building permit was issued. Id. Similarly, GREB may only be changed if another method or code was requested and approved. Id. The Plaintiffs and Designer Hallback never requested any code after the initial request for the 2003 IBC and GREB. Id. At no time in the review process were Plaintiffs informed that the 2007 State Building Code was to be applied exclusively to Phase 1. Id. Likewise, no method or code was requested and approved in place of GREB. Id. GREB, absent this request and approval, cannot be rejected. Id. Architect Adams wasn’t involved at all in Phase 1, per the approval of Defendants Grace and Gulland, and therefore had no hand in the decision of applicable codes. Id. Defendant Gulland simply stated verbally to Plaintiffs and Designer Hallback that GREB would not apply because a “change in use” applied when there was a “change in ownership.” Id. Defendant Gulland interpreted this to Plaintiffs as meaning that their building would be treated as a “new construction” to the extent building codes were concerned. Id. The request was made in writing to Defendant Gulland for GREB and he simply dismissed it. Defendant Gulland admits he has overseen GREB projects during his employment with the city of Duluth. Aff.Pirila ¶12; Admissions, Gulland, etc., First Set (Revised), 26.

Designer Greg Hallback also made reference to the “2003 International Existing Building Codes” in his May 21, 2007, email to Defendant Gulland, in what he called the beginning of the code review process. Aff. Pirila ¶15, Ex. 13.

Architect Adams: Defendant Gulland is well aware that Architect Alan Adams did not participate in the building project in the least until later into the second phase [Main floor apartments in main building], and after the first phase of designs were approved and the first building permit was approved. Aff. Pirila ¶9, Ex.7. Architect Adams entered the project for the first time sometime after July 8, 2008. Aff. Pirila ¶9. Defendants Gulland and Grace agreed that no architect was needed for the first phase. Id. Up until that time, the only evidence of requests for a particular building code from Plaintiffs’ and their designer were the original request for GREB and the 2003 State Minnesota Building Codes. Id. There was no request from Plaintiffs, Designer Hallback, or Architect Adams requesting any building code in place of GREB. Id.

Once GREB is requested, as it was by Designer Hallback at the very beginning (March 2007), and found applicable, it must be used unless an alternate code is requested and approved by the building inspector. Id. First of all, the Plaintiffs architect Alan Adams did not enter the project whatsoever until July of 2008. Id. He simply wasn’t the one to make the initial calls, one way or the other. Id. Designer Hallback was solely responsible for all building code requests made during the first phase and a good part of the second. Id. GREB was almost exclusively applicable in the first phase, and much less so in the second and later phases. Id. Secondly, Defendants Gulland and Grace are well aware of Designer Hallbacks’ role, as they gave him their approval to design all aspects required for the first phase without the need for an architect. Id. Thirdly, if there was a request by Architect Adams to use an alternate code in place of GREB, there is nothing to substantiate it. Id. The building code that Architect Adams said he used in the “second” phase was the 2007 Minnesota State Building Code/2006 International Building Code and amendments. Id. GREB is incorporated by reference, subject to infrequent change, and an alternate code must specifically be asked for and approved. Id. Architect Adams wasn’t asking to use any code in place of GREB, but in addition to. Id. The documents in evidence show the request for GREB, while there are no requests for an alternate code in its place, or approvals for an alternate code. Id.

Defendants would not allow GREB: Defendant Grace admitted he did not use GREB for this project. Admissions, First Set, Duane Grace, 214. Defendant Grace admits his duty includes the use of GREB guidelines when applicable. Adm, First Set, Grace,62. Defendant Grace admits he eventually learned that GREB could be used for Plaintiff’s project. Id,. 63. When Defendant Grace says “eventually” he was referring to the period of time after Plaintiffs project had already been permitted through the second phase and the benefits of GREB were already squandered. Aff. Pirila ¶11. Defendant Grace acknowledges GREB, albeit after the 2^nd building permit (phase 2) was obtained. Id. This February 13, 2009, letter from Defendant Grace to Architect Adams and Designer Hallback appears to be nothing more than a last-ditch effort of self-preservation during the MN DOLI investigation that was ongoing. Aff. Pirila ¶11, Ex. 9. At this point in time, there was no benefit to recognizing GREB when the plans had already been finalized and a lot of work already completed. Id.

Defendant Gulland refused to acknowledge GREB, electing to treat Plaintiffs existing building as a new construction. Depo., Pirila, 103, 12-19. Defendants Gulland and Juntunen both trespassed and then contributed to reports based on these trespasses. Defendant Gulland failed to complete on-site inspection cards, put orders in writing, intentionally delayed permits, ignored exceptions [Depo., Pirila, 98:23-25], and failed to maintain proper records at Thomson Township.

Duane Grace admits he is familiar with Minn. Stat. § 1311.0020, Adoption by reference of the Guidelines for the Rehabilitation of Existing Buildings (GREB). Admissions, First Set, Grace, 99. Defendant Grace admits that plaintiffs’ building is an existing building. Adm,, First Set, Grace, 100. Defendant Grace admits the requirements of GREB have existed since 2000. Id.,, 101. Defendant Grace admits he has used GREB for other projects after Plaintiff’s project; however, he did not use GREB prior to Plaintiffs’ project. Id.,102. Although Defendant Grace already admitted to using GREB for projects after Plaintiffs’ project, he denies that GREB was never used on this project. Id., 104. However, in Admission 214, Defendant Grace admits he did not use GREB for this project. Id. 214. Defendant Grace’s states he “eventually” learned of GREB applicability in his letter on February 13, 2009 to Architect Adams and Designer Hallback. Aff. Pirila, ¶15

Defendant Grace admits the GREB code could have been used. Adm., First Set, Grace, 65. Defendant Grace admits he should follow the GREB code when applicable. Id., 62. Defendant Grace admits he eventually learned that GREB could be used for Plaintiff’s project. Id.,, 63. Defendant Grace clearly did not use GREB at any point, even after he claims to have learned about it.

Defendant Grace stated in his February 13, 2009, email, that he eventually learned of GREB’s applicability. Aff. Pirila, ¶72. However, on July 16, 2007, Defendant Grace emailed Plaintiff Marvin Pirila, Designer Greg Hallback, and Defendant John Gulland. Id. This email included the statement, “…the structure needs to meet the provisions of the present code, which at this writing is the 2007 Minnesota State Building Code, which in turn adopts the 2006 edition’s of the International Residential Code and the International Building Code. Id. The IRC will not apply to this structure, only the IBC, and the International Existing Building code as noted in Chapter 1311 of the MSBC…” Id. Chapter 1311 is GREB, so Defendant Grace knew full well that it existed, well back in time to 2007 at the minimum, and admits it should have been. Id. As the first building permit was not issued until February of 2008, Defendant Grace is acknowledging GREB applies, but doesn’t allow its use. Id. Defendant Grace took conflicting position on GREB. Id. One where he didn’t know of its applicability and the other where he knew of its applicability at the very beginning of the plan review process. Id.

Existing Buildings: There isn’t evidence to suggest that even the rules of Existing Buildings ([“EB”]) in the IBC (2006) were followed. However, Defendant Gulland denies he failed to follow rules for Existing Buildings. Aff. Pirila, ¶12, Ex. 10. Adm,.Thomson Township, etc.,. 57.

A January 20, 2010 email from Greg Hallback pointed out “Only the 2007 State of Minnesota Building Code (MSBC) was applied which is mainly the adoption of the 2006 International Building Code (IBC). Aff. Pirila ¶13, Ex. 11. These were applied without respect to the Guidelines for the Rehabilitation of Existing Building Code (GREB). Id. This project was the remodeling of an existing building and the GREB code ought to have been applied in some areas as was mentioned by architect Alan Adams.” Id.
Email from Mr. Hallback to Marvin Pirila on Thursday, January 14, 2010 stated, “The GREB does make allowances for existing buildings, but John [Gulland] and Duane [Grace] seemed adament against applying it.”Id.

Key Policy: During Discovery, Plaintiffs learned that Thomson Township has no written key policy and no accounting for what keys had been returned. Aff. Pirila ¶24, Ex. 21, 23, 29).

Occupancy Load: Wasted time spent on load occupancy. Aff. Pirila ¶67, Ex. 31; Depo., Pirila, 134:3-19. Defendant Grace pointed out an exception to Section 1004.1.1 for occupancy loads to Defendant Gulland. Aff. Pirila ¶67, Ex. 31; Defendants Thomson Township, etc., Production of Documents, Ex. A, TH 345, TH 390. This exception states in part, “When approved by the building official, the actual number of occupants for whom the space is designed for.” In Defendant Grace’s words, “I believe as we discussed, this second floor or even the first floor could never support that high an occupant load as presently designed.” Aff. Pirila ¶67, Ex. 31. Rather than apply this exception, they [Defendants Grace and Gulland] required a lengthy argument in writing from Designer Hallback. Id., Ex. A, TH 392-404. Defendant Hallback presented his arguments at a meeting at Thomson Township on January 13, 2009, regarding occupancy loads. Id., Ex. A, TH 453.

Defendant Gulland claims he “did not use GREB because Plaintiffs’ architect did not select GREB. Admit Mr. Adams [architect] elected to use the 2007 Minnesota State Building Code, IBC, and amendments for this project.” Aff. Pirila, ¶15; Defendants Thomson Township, Thomson Township Fire Department, John Gulland and Jeffrey Juntunens’ Response to Plaintiffs’ First Request for Admissions (Revised), 47. Aff. Pirila, ¶15. Defendant Gulland makes this Admission even though it is a denial of an obvious truth. Id.

Duane Grace admits he knew of Chapter 1311 of the MSBC which adopts the Guidelines for Rehabilitation of Existing Structures known as GREB as he referenced in his email dated December 11, 2008. Adm., First Set, Grace, 175. This was prior to the issuance of the second building permit.

Defendant Gulland admits he has overseen GREB projects during his employment with the city of Duluth. Admissions, Defendants Thomson Township, Thomson Township Fire Department, John Gulland and Jeffrey Juntunens’ Response to Plaintiffs’ First Request for Admissions (Revised), 26. Once GREB is requested and found applicable, as it was in Plaintiffs case, Defendant Gulland had no choice but to accept it. Aff. Pirila ¶12. Ironically, Defendant Gulland “admits GREB rules are followed for an existing building.” Adm. Defendants, First Set (Revised), 52. The Old Washington School [Plaintiffs property] is clearly an existing building, and GREB was requested, so there is no explanation other than corrupt motive for denying GREB. Aff. Pirila ¶12. Even after Defendant Gulland’s admission that GREB rules are followed for an existing building, he denied that GREB guidelines applied to Plaintiffs project. Adm. Defendants, First Set (Revised), 48.

The project was divided into three phases. Aff. Pirila ¶8, Ex.6. The Plaintiffs immediate plans for the building were to rent the gymnasium as Thomson Township had and move into the upstairs of the Main Building and use it as their residence. Aff. Pirila, ¶4, Ex.2. The plans for the rest of the rooms were initially apartments. Id.

These phases changed from the original plans after Defendant Gulland claimed that GREB did not apply and that the “change in ownership” constituted a “change in use” and meant that everything had to be considered as though it was a new construction. Aff. Pirila ¶8, Ex.6. Phase one then became the completion of the residence so plaintiffs could move in as soon as possible. Id, Depo., Pirila,, 28:15-24, 29:2-25, 30:1-24. Phase one also included the completion of an upstairs apartment. Id. Phase two involved the completion of lower unit apartments [Depo., Pirila, 28:24-25, 30:25, 31-33:1-25, 34:1-6] and Phase Three the renovation of the gymnasium. Depo., Pirila, 28:25, 29:1, 34:7, Id. The gymnasium would have taken top priority had Defendant Gulland allowed it to be used as it always had been for Thomson Township. Id.

Stop Work Order: Defendant Gulland denies, “The stop work order he issued was based on speculation” in Admission 63, First Set. Aff. Pirila ¶6, Exs. 4 & 10. However, there were no inspections made prior to the Stop Work Order, no contact made with anyone, and no facts to substantiate the order. Id. There were no specifics given as to what was in violation of building codes that required a building permit. Id.

Defendant Gulland constructed a letter dated February 12, 2007, three days before posting the Stop Work Order on February 15, 2007. Id. This letter was not sent by Thomson Township until February 16, 2007. Id,. Depo. Pirila, 39:6-17.

Blank On-Site Inspection Card: Defendant Gulland failed to make any entries to the on-site inspection card as required by Minn. Stat. § 1300.0210 Subp. 3 and 1300.0110 Subp. 5. Aff. Pirila ¶18, Ex.15. This card is used by building inspectors to record inspection dates, areas inspected, noting approvals or deficiencies. Id. Even throughout the MN DOLI investigation, Defendant Gulland made no entries to the on-site inspection card. Id. The on-site inspection card was blank and there was no official record of inspections kept at Thomson Township. Id. See also Depo. Pirila, 63:4-8, 70:1-2, 75:23-25.

Public Duty Doctrine and Public Trust: In addition to the aforementioned non-existent key policy, Thomson Township failed to voluntarily answer information requests, despite their claims. Second, Thomson Township conducted minimal inquiry into the reported behaviors of Defendants Gulland and Juntunen. Thomson Township denied Admission 23 of the First Set of Admissions that stated, “Thomson Township admits it has the obligation to oversee the actions of its employees and contractors.” Thomson Township failed to discipline either Defendant Gulland . Adm., First Set (Revised), Thomson Township, Etc., 65; Interrogatory, Gulland 27) or Defendant Juntunen. Adm., First Set (Revised), Thomson Township etc., Id., 66.

Thomson Township denied, “That John Gulland never returned his key for plaintiff’s property once it was sold.” Id., 82. Thomson Township denied, “That Jeffrey Juntunen never returned his key for plaintiffs’ property once it was sold.” Id., 83. In the absence of a key policy or log, Thomson Township has acknowledged that they don’t know who retained keys.

Thomson Township officials failed to respond to numerous letters, emails, and phone calls. The Public duty doctrine imperatively follows statutes, US Constitution, and Minnesota Rules regarding entry.

Ambiguity: Ambiguity exists when written orders are absent and verbal requirements constantly change. Aff. Pirila ¶73. Defendant Gulland was cited by the MN DOLI for failing to put all orders in writing. Id. The fact is that Defendant Gulland put very little in writing, even though he was constantly pressed by Plaintiffs to do so. Id. See also: Depo., Pirila, 79:22-25, 80:1-4.

Defendants Gulland and Grace differed in opinions and created their own ambiguity. Id. These included: Defendant Grace said he had allowed a temporary certificate of occupancy when life issue items were scheduled for completion. Id. Defendant Gulland adamantly refused in Plaintiffs case. Id. See also: Depo., Pirila, 121:2-25, 122:1-25.; Defendant Grace said he had allowed phased approval of building permits to allow for some work to be done. Id. In this case, Plaintiffs wanted to insulate the lower level of the main building to prevent as much heat loss as possible. Id. Defendant Gulland refused, insisting on knowing the complete plans down to the last screw first. Id. See also: Depo., Pirila, 105:12-21 & 131:1-25.

Failure to Provide Information: Thomson Township stated that “the Township provides public information it possesses” in response. Aff. Pirila ¶28. See also: Admissions, First Set (Revised), Thomson Township, etc., 24. However, they [Thomson Township] never provided any information, even when promised, to Plaintiffs, other than allowing Plaintiffs to review their own file. Id. Access was not provided for five days, and could have been filtered first. Id. The access to files, as it is with the keys inventory, lacks any record keeping safeguards. Id. Defendant Gulland or any other person with keys had access to this file without any true accountability. Id. This file did not show any evidence of inspections, details, or the basis upon which Thomson Township attorney David Pritchett based his letters citing fire and building code violations. Id.

Plaintiffs requested access to the file on October 28, 2009, and was told by Thomson Township clerk Rhonda Peleski that she would have to look at the statutes the next day. Aff. Pirila ¶28, Ex. 25. Plaintiff Pirila followed up the next day, and was told by Ms. Peleski that she was waiting on Thomson Township attorney David Pritchett to answer. Id. It was November 2, 2009, at 3:30 p.m. that Plaintiffs were approved to review the file. Id. As both Plaintiffs were at work and the Township closed at 4:00 p.m., it wasn’t possible to see them that day. Id. Five full days had passed before the file became available. Id.

Thomson Township denied “it failed to answer information requests” in Admission 64, First Set, even though it answered none for Plaintiffs. Aff. Pirila ¶29. Eleven (11) interrogatories were sent to various employees, volunteers, and ex-employees of Thomson Township and none were answered. Aff. Pirila ¶29, Ex. 26.

Requests for Information sent to Defendant Juntunen (1/13/10); Brent Pykonnen – Volunteer Fire Fighter (1/13/10): Defendant Gulland (1/14/10); Defendant Thomson Township (1/12/10) and (1/9/10); Thomson Township Attorney David Pritchett (TH 213 - 9/9/08) (1/14/10); Glen Gist (1/13/10); Tim Boettcher – Volunteer Fire Fighter (1/11/10); Dan Pollema – Volunteer Fire Fighter (1/20/10); and Defendants counsel Iverson-Reuvers (4/21/10) were all ignored. Id.

Thomson Township attorney David Pritchett responded by letter dated January 15, 2010, in regards to an information request by Plaintiffs. Mr. Pritchett claimed the information requested by plaintiffs was “inappropriate, and you are hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town.” Aff. Pirila ¶33, Ex.30. Such a request by a person acting Pro Se is legal and especially appropriate when the town continually fails to respond to requests. Id.

Counsel for Defendants Thomson Township etc., argued successfully for the dismissal of information under the Data Practices Act at a hearing to limit admissions in July of 2010. Aff. Pirila, ¶23, Ex. 20. The Data Practices Act they proved did not apply to Thomson Township and they weren’t compelled to answer questions. Id. Plaintiffs don’t argue this, but request that Defendants now supplement certain documents requested in Plaintiffs’ Request for Production of Documents, Set I. Requests 8-10, 12, 18-22, 26-27, 30-32, 33, and 35 where Defendants claimed “Objection, this Request calls for private data under the Minnesota Data Practices Act.” Id.

Requests for Temporary Certificate of Occupancy: Plaintiffs made several attempts to get the requirements for a temporary certificate of occupancy in writing from Defendants Grace and Gulland:

Plaintiff Francette emailed Defendant Gulland on 12/3/08 expressing her dissatisfaction with his wavering requirements for a Temporary Certificate of Occupancy. Aff. Pirila, ¶27, Ex. 24.
Email by Plaintiff Pirila to Defendant Grace on December 4, 2008 at 2:04 PM requesting a Temporary C.O. and stating the change in requirements. Id.
Email from Plaintiff Francette to Defendant Gulland on 12/6/08 requested a temporary certificate of occupancy with a commitment to getting the railing completed. Defendant Grace said Defendant Gulland had the authority to permit it. Despite numerous calls for a temporary C.O., plaintiffs would not receive correspondence from Defendant Gulland and were restricted until April 7, 2009, before they could move in. Id.
Email from Mr. Pirila to Mr. Grace and Mr. Gulland on 12/15/08 at 10:14 AM stating when the new hand railings and guardrails were going in. It repeated what Mr. Grace had stated, that “Duane has said you could issue a temporary John, but you have said you wouldn’t until its…If there is any other item that is going to be required, that hasn’t already been discussed, as a requirement for temporary C.O. we want to know what that is right now.” Id.
Email from Ms. Francette to Mr. Grace and Mr. Gulland on 12/15/08 at 11:54 AM expressing her frustration with the delays. It stated in part, “Duane, you have indicated that a provisional certificate could be obtained but John, you have not responded…last summer we had verbally agreed to what it would take to get into our home.” Id. See also: Depo., Francette, 22:10-25, 23:1-10.
Duane Grace sent an email on 12/18/08 at 7:40 AM to Mr. Gulland telling him an exception to Section 1004.1 and Table 1004.1.1. “The exception reads in part – “When approved by the building official, the actual number of occupants for whom the space is designed for." “I believe as we discussed, this second floor or even the first floor could never support that high an occupant load as presently designed.” Id. See also: Depo. Pirila, 59:7-25, 60-63: 1-25.

Alienation & Malice: Defendant Grace made the follow statements to Designer Hallback and Architect Adams:

“Marv., is bitching again. Now he is blaming me for holding up things which I object to, but that is o.k., if it makes him feel better…You have quite a project with this man.” Email on 12/15/2008 to Designer Greg Hallback (not copied to plaintiffs). Response to First Request for Production of Documents, Thomson Township, etc., Ex. A, TH 469.
Copied designer Greg Hallback on 12/15/08 email to Plaintiff Pirila with the comments: “Bitching and blaming others is not going to get you anywhere, you are old enough to know that by now,” and “Have you given John any hint of whom is to install the railings or whatever else is holding up your occupancy permit, and when it may be finished. He is not a mind-reader nor is he apt to pick up on your good intentions without you saying something to him…Don’t just whine to at him or me that you need to move because its costing you money or whatever else.” Production of Documents, Thomson Township etc., Ex. A, TH 338-339.
Email from Defendant Grace to Architect Alan Adams on 1/28/09. “I want to express my thanks to you for your support of John’s efforts on this project, to say it has been difficult is putting things very mildly. This is a difficult project at best, and the way it is being handled by the owner has not made John’s work very easy. There should have been a good knowledgeable contractor on this project. It is a major undertaking, and not really one that one with little experience should have tried to tackle.” This was not copied to plaintiffs. Production of Documents, Thomson Township etc., Ex. A, TH 469; Depo., Pirila, 119:11-13.
“You really go out of your way sometimes to influence people and make friends. Your comments sure make me want to be of great assistance to you and your project. Nevertheless I earned the title of a SOB in this business, many years ago, by better people but they also told me that I treated everyone exactly alike. So I am trying to maintain that reputation, even with you.” Email from Defendant Grace to Plaintiffs, and Designer Hallback. Defendant Graces’ comment, “…by better people…even with you,” suggests his reluctance to treat Plaintiffs equally. Admissions, First Set, Grace, 112. See also: Depo., Pirila, 119:9-11.
Defendant Grace email on 2/2/09 to Designer Hallback and Architect Adams said in whole, “Gentleman, Just because I told Marvin that I would not tell him when something could be changed to make it either better, cheaper or easier to do and still meet the minimum code requirements, does not mean that I cannot mention such things to you in a separate memo. Please do not mention this memo to Mr. Pirila, this is between us girls. Depo., Pirila, 140:5-9. He is finally getting to me in some ways. I do feel sorry for both of you on this project, and do hope that we can work together someplace later that will be better for all of us.” This is a mere five minutes after Defendant Grace sent an email to plaintiffs and Mr. Hallback suggesting greater accountability on his part and portraying himself as a concerned professional. Depo., Pirila, 100:10-18, 109:19-25, 110:1-6.
Defendant Grace admits he wrote an email to Designer Hallback on October 20, 2009, at stated, “Are you done with our friend in the old school, and a better question has he paid you all you have coming? I keep hearing stories!” Admissions, First Set, Grace, 12. Depo., Pirila, 110:13-25.
Defendant Grace told Plaintiff Francette that her husband was complicating things by asking questions, and he should cease doing that and it would go better. Depo., Francette, 21:14-25, 22:1. -- See Depo. Pirila, 107:10-16, 109:22-25, 110:1-25, 111:1-6, 119:9-18, 140:12-17; Depo., Francette, 19:24-25, 20:1-18.

Deficient/Missing Documents: Defendant Thomson Township has no record of all of the inspections made, or the findings or purpose of those initiated by Defendant Gulland. Aff. Pirila ¶18, Ex.15. The reports on inspections are required by Minn. R. 1300.0110 Subp. 8 to be retained on record at Thomson Township. Id.

Entry without Consent/Trespass: Defendant Gulland made several entries into Plaintiffs property without proper consent. Aff. Pirila ¶20, Exs.10, 16-17. There was no unsafe, dangerous, or hazardous situation. Id. There were only non-emergency, non-life threatening circumstances where consent for entry was just a phone call or letter away. Id. Defendant Gulland never sought consent for entry, instead choosing to make inspections unbeknownst to Plaintiffs. Id. Nevertheless, in Interrogatory 5, Defendant Gulland tries to justify his entries stating that he was always with someone. Id. He was never in the building with just an employee of Plaintiffs, as he suggests. Id. Plaintiffs had no employees. Id. Defendant Gulland tagged along with Thomson Township Plumbing Inspector Paul Sandstrom on August 1, 2008, unbeknownst to Plaintiffs. Id, See also: Depo. Pirila, 25:19-25, 26-27:1-25, 28: 1-14. Defendant Gulland used this opportunity to produce a letter alleging building code violations the same day. Defendant Gulland’s attendance does not constitute consent and his report was based on illegal trespass. Id.

Defendant Gulland admits he “accompanied Paul Sandstrom on a plumbing inspection at the Washington Community Center approximately August 1, 2008. Admissions, First Set (Revised), Thomson Township, etc., 42. Admit State Plumbing Inspector Brad Jensen and plumbing contractor Leroy Lin[d]strom of North Star Plumbing was also present. Id. Without notice or reasons, Paul Sandstrom withdrew from Plaintiff’s project. Aff. Pirila ¶19.

On two other occasions Defendant Gulland accompanied Architect Alan Adams, on forced progress inspections, both without consent of Plaintiffs. Id. In fact, after the first surprise visit by the Architect and Defendant Gulland, Plaintiffs specifically objected to these inspections, and insisted that Defendant Gulland contact them for inspections or wait for them to call. Id. He [Defendant Gulland] ignored their requests and made yet another unauthorized inspection with Architect Adams. Id. The MN DOLI was contacted, and Barry Greive immediately contacted Architect Adams and Defendant Gulland to discontinue what Plaintiffs considered punishment and retaliatory visits. Id. These visits were discontinued immediately once the MN DOLI intervened, and clearly suggests they lacked legitimacy and were based on malice. Id. Defendant Gulland denied “that forcing plaintiffs out of work to make “his” scheduled meetings were not reasonable, nor allowable under the statute.” Admissions, First Set (Revised), Gulland, 76. Forcing Plaintiffs to take leave from work to attend a weekly meeting that had little significance, and was done against their consent, was unreasonable, retaliatory, and illegal. Id. These forced inspections came only after the initiation of the MN DOLI investigation. Id. There was only one contractor working at that time and progress was slow. There was little or no benefit to weekly, forced inspections. Id.

During his Deposition Plaintiff Pirila didn’t allege trespass by Defendant Gulland during the time they were living there. Depo. Pirila, 39:14-25,40:1:4. Plaintiff stated he didn’t not have his papers with him so he didn’t know exactly how many times Defendant Gulland accompanied Architect Adams without the consent of Plaintiffs. Depo. Pirila, 40:1-4. A later review of the documents showed that Defendant Gulland was in fact making visits without the consent of Plaintiffs during their residency. Aff. Pirila ¶19.

The MN DOLI was contacted by email on May 13, 2009 by Plaintiffs. Aff. Pirila ¶19, Ex.21. This email stated, “Every week, whether any progress is made or not, both John Gulland (inspector) and Alan Adams (architect) schedule themselves to be here at 4:00 p.m. Id. This presents a hardship for us as both my wife and I don’t get home from work until about 4:45 p.m. each day. Id. We are forced to take vacation time to attend these meeting, just to rehash the same things or very little. Id. [At the time of these inspections, Plaintiff Pirila, was physically moving items from his work office to its new location. He was having difficulty with coverage at work and had extra demands required from the move. Id] I have asked them not to come until called but they refuse. Id. Last week there was nothing new to discuss, yet they came. Id. We have one full-time person working, and other part-time help, so nothing goes real quick. Id. I wonder if this [is] a retaliatory measure on their part to drive ups our costs.” Id. Plaintiffs spoke by phone thereafter with Barry Greive about these forced visits. Aff. Pirila ¶19. Barry Greive immediately contacted them [Architect Adams and Defendant Gulland] to discontinue what Plaintiffs considered punishment and retaliatory visits. Id. See also: Depo, Pirila, 75:18-25, 76:1-3. This was the second week in a row they had forced both Plaintiffs to leave work early to attend. Id. As they occurred after the occupancy of their residency on April 7, 2009, these forced visits were during this period. Aff. Pirila ¶19, 21. The first visit was without any knowledge or consent of Plaintiffs. Aff. Pirila ¶19.

On June 17, 2009, Plaintiffs emailed Architect Adams about the purpose of these forced visits. Id. These visits were discontinued immediately once the MN DOLI intervened. Id. Defendant Gulland denied “that forcing plaintiffs out of work to make “his” scheduled meetings were not reasonable, nor allowable under the statute.” Aff. Pirila ¶50, Ex. J, PP. 9-10, Admission 76. These inspections forced Plaintiffs to take leave from work to attend weekly meetings that had little significance, were done against their consent, and appeared retaliatory in nature. Aff. Pirila ¶19. These forced inspections came only after the initiation of the MN DOLI investigation. Id. There was only one contractor working at that time and progress was slow. There was little or no benefit to weekly, forced inspections. Id.

These inspections were not consented to for Architect Adams and Plaintiffs told him the same. Id. In the presence of evidence that Architect Adams lacked consent, he possessed no authority to invite or participate in these illegal visits. Id. The Defendants argue that Architect Adams had the proper authority to grant consent to entry, but when he is forbidden

Simply put, Defendants Gulland and Juntunen had the statutory obligation to seek reasonable prior notice and consent from the Plaintiffs themselves. Defendant Juntunen simply stated, “The doors were open.” Id. The doors are open on many homes and properties, but that does not make them open to the public and public officials to enter as they please. Id. Defendant Gulland answers the claims to trespassing by suggesting he was always in the company of another person and he would have the court believe this constitutes consent. Id. There is nothing reasonable about searching out an open door or using an old key to permit oneself access to private property. Id. That person could, and in this case did, choose a time they may have known the owners [Plaintiffs] were not home, expected no one on site, and had free reign to all areas inside the building. Id.

The person doing the work authorized by permit is supposed to notify the building official that the work is ready for inspection. Id. Defendant Gulland made several entries without consent or even attempting to seek consent. Id. Defendant Gulland also required inspections when work wasn’t ready for inspection. Id.

Records of inspections are to be kept on site by building inspectors, as well as in the Thomson Township files. Id. Except for one plumbing inspection by Thomson Township Plumbing Inspector Paul Sandstrom that was found in Thomson Township files, there are no other records. Id.

Defendant Gulland failed to document inspections on the job site inspection card and in the official records of the municipality, including type of inspection, date of inspection, identification of the responsible individual making the inspection, and comments regarding approval or disapproval of the inspection. Id. The building official may engage expert opinion necessary to report upon unusual technical issues that arise. Id.

Defendant Juntunen does not disguise his entry without consent in Admission 46, Set 1 (Revised); simply responding he “entered Plaintiffs’ property to enforce fire code regarding large pile of debris.” Id. The large pile of debris Defendant Juntunen refers to was a pile of slats piled near the west wall of the building, outside. Id. Plaintiffs fail to see how this justifies entry to a private building without consent. Id. This pile did not happen overnight and in no way constituted an immediate problem that would justify any visit without consent of Plaintiffs. Id.

Defendant Juntunen denies, “He made no efforts to seek consent of plaintiffs prior to entering premises,” Admissions, Thomson Township, etc., First Set (Revised), 68. See also Depo. Pirila, 64:3-9. There isn’t a phone record, an email, a record of inspection, or any other document to substantiate this claim. Id. See also Depo. Pirila, 65:17-23. Defendant Juntunen denied, “He left no notice of his unauthorized visits.” Id. 70. However, there was nothing on the day or days that followed until a letter was received from Thomson Township attorney David Pritchett on September 5, 2008. Aff. Pirila ¶20,Exs.10, 16-17. In fact, in a follow up letter to Pritchett, Plaintiffs asked for Mr. Bassett’s removal, thinking that he was the fire chief. Depo., Pirila, 49:25, 50:1-6. Id. If Plaintiffs had known of Defendant Juntunen’s visits, they certainly would have gotten his name right. Defendant Juntunen entered without consent and then failed to leave notice. Id.

Defendant Juntunen did not attempt to locate someone to notify them about the concern and possible fire code violations as suggested in his affidavit. Id. The building was vacant at the time and did not necessitate emergency access therefore advance consent could have been sought and is a statutory requirement. Id.

Defendant Gulland denies he visited Plaintiffs property without consent. Admissions, First Set (Revised), Thomson Township, etc., 33, Aff. Pirila, ¶20,Exs.16-17. In Admission 43, Defendant Gulland admits Mr. Sandstrom [Thomson Township Plumbing Inspector] scheduled the inspection and requested he [John Gulland] attend. Admissions, First Set (Revised), Thomson Township, etc., 33, Aff. Pirila, ¶20,Exs.16-17. He admits this, yet denies he did not seek consent of Plaintiffs. Aff. Pirila, ¶20,Exs.16-17. There isn’t a phone record, an email, a record of inspection, or any other document to substantiate this claim. Id. If this were an authorized inspection, like the others, there would be a record on-site or at Thomson Township. Id.

Defendants Gulland and Juntunen visited at times they reasonably knew the Plaintiffs would be working, and could easily verify this by the lack of any vehicle in either parking lot. Id. Absent the cars and the consent of Plaintiffs, both Defendant Gulland and Juntunen, made their way to a door they would reasonably expected to be locked. Id. Even so, they [Gulland and Juntunen] had every expectation of getting inside. Id. The only way to have had this expectation was to have a key that you knew opened a particular door. Id.

Defendants Gulland and Juntunen roamed freely through Plaintiff’s property with no consent from Plaintiffs and no warrant. Id. Thomson Township Attorney David Pritchett based his letter on September 5, 2008, upon the claims of Defendants Gulland and Juntunen, and threatened a stop work order. Id. Mr. Pritchett consulted with ex-zoning official, Marv Bodie, regarding the matter, which brings privacy rights into question. Id. As an attorney, David Pritchett, was reasonably aware they [Gulland and Juntunen] entered without consent. Id. All of the Plaintiffs questions, as well as their concerns with trespasses, were expressed to Attorney Pritchett in their September 9, 2008 letter. Plaintiffs’ letter did not receive a response. Id. Mr. Pritchett, like Thomson Township and the Thomson Township Fire Department, chose to defend the actions of Defendants Gulland and Juntunen, thus becoming a party to what occurred. Id.

Plaintiffs filed trespassing charges against Defendants Gulland and Juntunen with the local police in July of 2010. Aff. Pirila, ¶19,Ex. 15; see also Depo., Pirila, 71:17-25, 72:1-15. Because of the relationship of local law enforcement official Tom Foldesi with local officials, it was sent to Carlton County for processing. Id., Depo., Pirila, 72:1-15. It now sits in the office of Carlton County Attorney Tom Pertler. Id., Depo., Pirila, 72:3-25, 73:1-9. There’s a six-year statute of limitations. Id., Depo., Pirila, 71:19-22. The trespasses were discussed with the MN DOLI and State Fire Marshal prior to taking to the local authorities. Id., Depo., Pirila, 73:13-25, 74:1-6.

Plaintiffs scheduled an inspection by Defendant Gulland in March of 2009 in hopes of receiving a Temporary Certificate of Occupancy. Aff. Pirila, ¶19. The Plaintiffs had asked Nick Perfetti to join them, as they wanted another person to witness the verbal discussions they had with Defendant Gulland. Id.. Also see: Depo., Pirila, 14:7-9. The Plaintiffs had taken this measure because Defendant Gulland had repeatedly changed the verbal requirements for a Temporary C.O. Id. The meeting was scheduled for 4:45 p.m. the time both Plaintiffs’ would be home from work. Id. Mr. Perfetti was about 20 minutes early and found locked doors. He returned home for 20 minutes before returning with Ms. Francette. Id. See also: Depo. Francette, 14:8-20. The Plaintiff’s and Mr. Perfetti arrived and saw Defendant Gulland’s empty vehicle. Id. Ms. Francette unlocked the door of building to find that Defendant Gulland was already inside. Id. Plaintiff Francette immediately confronted Defendant Gulland and asked him how he gained entrance. Id. See also: Depo., 14:21-25, 15:1-10. Defendant Gulland just ignored the question. Id. After Plaintiff Pirila arrived, he also asked Defendant Gulland how he got in through a locked door and was ignored. Id. Defendant Gulland denies he was in the building illegally. Id. See also: Admissions, First Set (Revised), Defendants Gulland, etc., 29. Defendant Gulland also didn’t consider it illegal to be in the building without consent or knowledge of Plaintiffs, as long as there was someone meeting him there. Id.

Building Permit Delays: Inexcusable delays in granting a permit fall directly to Defendants Grace and Gulland. Aff. Pirila, ¶21, Ex. 18. First Permit: On December 4, 2007, Greg Hallback submitted drawings for the first phase along with a building permit application for approval to John Gulland. Id. Defendant Grace did not begin his review until December 19, 2007. Id. On January 15, 2008, Mr. Grace emailed Mr. Gulland about Plaintiffs request for a building permit, with his suggestion that the building permit be approved. Id. Defendant Gulland would not approve, failing to provide any reason. Id. On January 25, 2008, Mr. Hallback sent a follow up to Defendants Gulland and Grace stating again that everything had been satisfied for a building permit. Id. Still Defendant Gulland would not approve a building permit. Id. Plaintiffs felt they had no choice at that point except to contact the MN DOLI. Id See also: Depo., Pirila, 106:12-20, 111:7-21. On February 11, 2008, Defendant Gulland finally issued a building permit. Id. This is a full 69 days after the initial request and only with the expectation of an investigation by the MN DOLI. Id.

“What is your explanation for the lengthy delays in granting permits?” Interrogatory, John Gulland, 34. Defendant Gulland responded in part…”the permit can only be issued when sufficient information has been received, reviewed and approved so that building permits can be issued.” Id. The review was completed on January 15, 2008, by Defendant Grace, leaving the other time for Defendant Gulland to issue a permit. Aff. Pirila, ¶21, Ex. 18; Depo. Pirila, 112:2-16. The review process by Defendant Grace was excessively lengthy itself. Depo. Pirila, 132:17-25, 133-134:1-25. The end of the review process is acknowledging sufficient information. Id. On January 25, 2009, Designer Hallback sent a follow up email to Defendants Gulland and Grace stating again that everything has been satisfied for a building permit. Response to Request for Documents, Set 1, Defendants Thomson Township, etc., Ex. A, TH 695. A total of 27 days elapsed between the time Defendant Grace stating the building permit should be approved to when Defendant Gulland actually signed it. Id. Plaintiffs believe this signing would not have happened without the pending MN DOLI investigation. Id. See also: Depo., Pirila, 99:1-5, 126:6-14.

The 2^nd building permit took 72 days of review for approval. Id. Defendant Gulland did not state his reasons for failing to take action on the building permit application in a reasonable time after filing. Id. The site inspection card did not state that anything was deficient. Id. The on-site inspection card was blank. Id. There was no written documentation from Defendant Gulland either rejecting the application or stating the reasons for its delay. Id. Defendant Grace did the Plan Review and left the final signing of the building permit to Defendant Gulland. Id.

Thomson Township knowingly employs Defendant Grace as a Plan Reviewer knowing that he resides in Alamo, Texas, every winter. Aff. Pirila, ¶42. Under the best of circumstances, it takes three delivery days to reach Alamo, Texas, from Esko, Minnesota. Id. With another three days to return items, a minimum of one week (adding Sunday) is automatically built into the review process. Id. If there is a holiday, you can add yet another day. Aff. Pirila, ¶42; Depo., Pirila, 111:22-25, 112:1.

Fire Orders: Defendant Jeffrey Juntunen created fire plans for Plaintiff’s property unbeknownst to them. Aff. Pirila ¶22, Ex. 19. Defendant Juntunen denies that he made never discussed fire-fighting plans with Plaintiffs. Admissions, Thomson Township, etc., First Set (Revised), 72. Plaintiffs had no conversation with Defendant Juntunen regarding fire fighting plans. The only conversations Plaintiffs had with Defendant Juntunen were in regard to the fire alarm system required for their building. Rick Olson, a carpenter for Plaintiffs, was the first to tell them that Jeff Gist, Volunteer Fire Fighter, [Depo., Pirila, 57:7-13] said the fire-fighters orders per the Thomson Township Fire Department was to sit on the main road and watch the [Plaintiffs] building burn. Id. The daughter of Plaintiff Pirila also came home from school saying that the daughter of fire fighter Dan Pollema said the orders were to let the building. Depo., Pirila, 57:7-13. Id. Plaintiffs brought their concerns to the attention of Town Board Supervisor Ruth Janke on January 12, 2009, at the Thomson Town Hall. Id. Ms. Janke brought it to the attention of Brent Pykkonen of the Thomson Township Fire Department. Id. Mr. Pykkonen brought the concerns of the Plaintiffs to Defendant Juntunen. Id. Mr. Pykkonen left a message on Plaintiffs voicemail that the volunteer fire fighters who were told not to try to be a hero and misconstrued the fire orders. Id. The Plaintiffs remained concerned as the two reports came separately and were dramatically different than Mr. Pykkonen was now reporting. Id. The email Defendant Juntunen sent on January 14, 2009, to some of the fire fighters did not convince Plaintiffs that the orders weren’t as originally heard. Id, Affidavit Jeffrey Juntunen, Ex. 1. For two individual fire fighters to state the same thing on different occasions lent credibility to the claims. Id. Plaintiffs felt that fire orders couldn’t or shouldn’t be relayed in terms that could possibly be misconstrued to the extent suggested by Defendant Juntunen. Id.

Knowledge of Problems: Thomson Township Attorney David Pritchett took an active role beginning with the zoning discussions. Aff. Pirila ¶69. This was prior to Plaintiffs purchase of the property at 1 N. Cloquet Rd. W, in Esko. Id. Attorney Pritchett drafted letters to Plaintiffs alleging building and fire code violations, threatening a Stop Work Order, and attempting to coerce Plaintiffs into refraining from asking written questions of fire fighters from Thomson Township. Id. Generally letters regarding building and fire code violations would come from the building inspector and fire chief/deputy state fire marshal themselves. Attorney Pritchett also promised information from Thomson Township that he never delivered. Id. Attorney Pritchett acts as a liaison between various committees and the Town Board, as well as being contracted by Thomson Township to render legal advice on the behalf of both Thomson Township and the Thomson Township Fire Department. Id.

The allegations made by Defendants Gulland and Juntunen came after their trespasses. “Had David Pritchett conducted a thorough investigation, asked these two gentlemen where they were deriving their information, and seeing within the file that there was no scheduled day for an inspection, he should have known this was either by trespass or they needed to explain further how they derived this information.” Depo. Pirila, 65:5-11.

Inconsistent “Admissions” statements: Defendant Grace acknowledges the Minnesota DOLI as the state authority on building codes (Admission 253), whereas Defendant Gulland denies. Admissions,First Set (Revised), Thomson Township, etc., 101.Defendant Grace admits Plaintiff Pirila was acting as his own general contractor (Admissions, Grace, First Set, Adm. 249), whereas Defendant Gulland claims he doesn’t know. Admissions, First Set (Revised), Thomson Township, etc., Adm. 34. The record clearly shows Plaintiff Pirila was acting as the General Contractor and there has never been anything to suggest otherwise. Production of Documents, First Set, Thomson Township, etc., Ex. A, TH 165.

Costs: Forced Visits: Mandatory visits made and/or scheduled by Mr. Gulland that forced Plaintiffs to leave work early. The homeowners/Plaintiffs had to leave work early three times to attend. Cost = 24 hours x $24/hr = $576. As Mr. Alan Adams and Mr. Hallback had to attend as well, they cost the homeowners additional money. Cost for Mr. Hallback = 3 visits x 2 hours x $75/hour = $450. Cost for Mr. Alan Adams = 3 visits x 3 hours (with travel) x $125 = $1,125.

Higher Insurance Rates: The unjustified delays led to higher insurance rates, due to it being considered a vacant building. Aff. Pirila ¶66, Ex. 22.Vacant buildings cost $0.30 per $100 of building coverage whereas occupied buildings are $0.17 per $100 of coverage. Id. Plaintiff’s building was covered for $350,000 or $1,050 a year in premiums for coverage. Id. The premiums for an occupied building at the same amount run $595 a year, for a yearly savings of $455. Id.

Energy Codes: The enforcement of energy codes that weren’t applicable. Id. This is a rehab (GREB) conservation project not subject to energy code requirements. Id. The exterior of the building had to have new 2x6 walls, insulation, and drywall to meet the energy codes that were enforced by Defendants Gulland and Grace. Cost for applicable drywall, rewiring, painting, trim, and insulation ~ $50,000. Id.

Higher Interest Rate: Plaintiffs received an above market interest rate due to insufficient income. Id. Wells Fargo provided them a 20-year loan at 9.1% interest when the market stood around 7%. The loan, even at 9.1% interest, was jeopardized in part by then Thomson Township employee Rick Bassett (Zoning Officer), who informed banker James Kallestedt that Plaintiff Pirila and Defendant Gulland did not get along. Id. This loan was obtained November 1, 2007, and ran until January 1, 2010, when the bank agreed to lower the rate to 8%, still above market. Id.

$345,000 Rate Monthly Payment Mths thru 10/1/10 Total

PF667-668* 9.1% $3772.11 38 $143,340.18
PF653-654* 8.0% 3245.09 10 32,450.90

Totals N.A. N.A. 48 $175,791.08

PF650-651* 7.0% 3034.16 48 $145,639.68

DIFFERENCE N.A. N.A. N.A. $30,151.40

*Denotes pages of Plaintiffs Documents attached hereto as Exhibit B. Id.

Costs due to enforcement of inapplicable Energy Codes: The exterior of the building had to have new 2x6 walls, insulation, and drywall to meet the energy codes that were enforced by Defendants Gulland and Grace. Id. The MN DOLI ruled that energy codes weren’t applicable. Id. This is a rehab (GREB) conservation project not subject to energy code requirements. Id. Cost for applicable drywall, rewiring, painting, trim, and insulation ~ $50,000. Id. See also: Depo., Pirila, 113:17-24.

Attorney/Legal Costs: $2,188.98 Id.

Architectural/Design Costs: The enforcement of the wrong building code increased architectural/design costs due to repeated requests for the same information, redrawing, and excessive visits. Id. Code error may have resulted in much more cost than stated. Designer Greg Hallback estimates at least an additional cost of $2,000. Id.

Lost Rent: Lost Rent + Renters Paying Own Utilities. Delay in permit due to indecisions by Defendant Gulland on Crawl Space (3 month delay). Id. Three months rent ($1,600/month) + approximate utilities ($100 each/month). Cost = $5,100. Id.

Gym Floor Damage: Estimated at $2.75 sq. ft. for flooring. 5,550 sq. ft. x $2.75 sq. ft. = $15,262.50. Id. Based on resale values found on the Internet. Id.

Sewer Pump Failure: Pumps failed due to lack of use. $2,355 Id.

Tax Consequences: Displacement from their own home, in conjunction with an early withdrawal from their retirement plans, subjected Plaintiffs to large tax consequences. Id. Without write-offs for the first time, due to displacement, their Federal Tax bill amounted to $30,000 and their state to $6,000. Id. Failed attempts at the Offer in Compromise procedures with each government entity resulted in a tax lien being placed by the IRS. Id. The many errors made by the Defendants, unjustified delays, and lost revenue contributed largely to the subsequent Bankruptcy Plaintiffs would have to file in May of 2010. Id. This will affect Plaintiffs’ credit status for 10-15 years and will cost plaintiffs hundreds of thousands in additional costs (higher interest rates). Id.

Emotional Distress, Familial, and Stress: “I can only say that it has been extremely stressful during these time periods because we were impacted financially and emotionally, and it did put a strain on our marriage and made things, you know, difficult all the way around.” Depo., Plaintiff Francette, 16:9-13.

While the building codes were being sorted out, Plaintiff’s lived with Mr. Pirila’s sister Virginia Tuominen in Saginaw, Minnesota. Plaintiffs lived with her from August of 2008 to April of 2009, or roughly eight months. Aff. Pirila ¶66.

During this time, Plaintiff’s had Mr. Pirila’s two daughters ten days a month, and Ms. Francette’s two granddaughters six days a month. Id. See also: Depo., Pirila, 7:7-14, 22:8-10, 126:17-25, 127:1-8; Depo., Francette, 16:21-25, 17:1-25.

During eight-month displacement from a home, plaintiffs incurred additional food, gas, and living costs. Id. On average, plaintiffs ended up driving an additional 40 miles per day due to their temporary living arrangement in Saginaw. Id. Eight months x 30 days/month x 40 miles/day x $0.545 (mileage rate) = $5,232. Id. The Tuominen home is about ten miles from Plaintiffs property. Id. See also: Depo. Pirila, 80:4-12. Plaintiff’s did not have a kitchen and incurred additional food costs: 240 days x $15/day = $3,600. Laundry costs: $30/week x 32 weeks = $960. Id.

Other health and medical problems resulting from Defendants actions and behaviors include:

Increased irritation from psoriasis increased from stress. Aff. Pirila ¶66, Ex. 32.
TMJ – Jaw clenching has led to increased stress on gums, headaches, and ear problems (wax must be manually removed). Id. Associated with the ear problems, is the inability of Mr. Pirila to wear hearing aids or be fitted for new hearing aids. Id. This problem has been ongoing for about 16 months thus far. Id.
Anxiety – both plaintiffs. Id.
Worsened depression – both plaintiffs. Id.
Increased PTSD and OCD problems – Mr. Pirila – caused by increased stress. Id.
Increased difficulty sleeping. Id.

Plaintiffs have suffered tremendous emotional distress and stress. Id. Plaintiff Pirila has suffered exacerbated problems with existing psoriasis, OCD, anxiety, and depression. Id. Since the beginning of the building project Plaintiff Pirila developed newfound problems with TMJ and ear pain. Id. See also: Plaintiffs Documents, Ex. B. PF 602 - PF 604, PF 607 – PF 610 – PH 642. The TMJ issues have resulted in Plaintiff Pirila’s inability to wear his hearing aids, due to constant pain and blockage in his ear canals. Id. See also: Depo., Pirila, 125:21-25, 126:1. TMJ has led to consistent headaches, jaw pain, and inflamed gum tissue. Id.

Admissions made contrary to known Facts, Other Defendants, and Themselves First Set (Revised) (Defendant Thomson Township, Thomson Township Fire Department, John Gulland, and Jeffrey Juntunen):

Defendant Grace acknowledges the Minnesota DOLI as the state authority on building codes (Admission 253), whereas Defendant Gulland denies. Admissions,First Set (Revised), Thomson Township, etc., 101.
Defendant Grace admits Plaintiff Pirila was acting as his own general contractor (Admissions, Grace, First Set, Adm. 249), whereas Defendant Gulland claims he doesn’t know. Admissions, First Set (Revised), Thomson Township, etc., Adm. 34. The record clearly shows Plaintiff Pirila was acting as the General Contractor and there has never been anything to suggest otherwise. Production of Documents, First Set, Thomson Township, etc., TH 165.
Defendants deny that Marvin Bodie was at any time a clerk for Thomson Township (Admissions, First Set (Revised), Thomson Township, etc., 8 & 9), yet he clearly was the administrative clerk for the February 12, 2008, meeting held at Thomson Township. Id., TH 155.
Defendants admit that Jeffrey Juntunen is the current fire chief of Thomson Township (Adm. 55) yet their list of former employees include Defendant Juntunen. Id., TH 868.
Defendants deny that the many groups listed in Admission 36, were previous occupants/renters of the Old Washington School, when in fact they were.
Thomson Township officials denied that “no trespassing” and “private property” signs are displayed throughout plaintiffs’ property. Adm. 19. The signs were and have always been there throughout Plaintiffs ownership.
Defendant Gulland denies he made visits without consent. Adm. 33. [Defendant Gulland did not have proper consent]
Defendant Gulland admits he did not use GREB because Plaintiffs’ architect did not select GREB. Defendant Gulland stated, “Admit Mr. Adams elected to use the 2007 Minnesota State Building Code, IBC, and amendments for this project.” Adm. 47. This is blatantly untrue as Architect Adams had no role whatsoever in the designs for the first phase and did not enter the second phase until sometime in July 2008.
Defendant Gulland denied that GREB guidelines applied. Adm. 48. However once GREB is requested as it was at the very beginning its use is mandatory unless a change is requested and approved. Designer Hallback made the request on Plaintiff’s behalf and was solely responsible for all designs from March 22, 2007 through the first part of July 2009.
Defendant Gulland denies that he treated Plaintiff’s building as a new building. Adm. 49. Defendant Gulland however, never allowed exceptions for GREB or “Existing Buildings” [EB]. Defendant Gulland admitted to knowing the difference between a new building and an existing building. Adm. 51. Defendant Gulland admits GREB rules are followed for an existing building. Adm. 52.
Defendant Gulland denies the wrong building codes were used. Adm. 56. MN DOLI, the building code authority, disagreed.
Defendant Gulland denies that he failed to follow the rules of Existing Buildings in the IBC (2006). Adm. 57.
Defendant Gulland denies he failed to follow Chapter 1322 of the MSBC – Residential Energy Code that addresses exceptions for existing buildings. Adm. 58. The MN DOLI censured Defendant Gulland in part for, “Requiring a structure to comply with the current energy code despite applicable energy code exceptions is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400.”
Defendant Juntunen denies he made no effort to seek consent of Plaintiffs prior to entering premises. Adm. 68. There is no record of an attempt by Defendant Juntunen to be found anywhere. Prior to entering private property Defendant Juntunen must have consent.
Defendant Juntunen denies he left no notice of his unauthorized visits. Adm.70. There is no record of any notice by Defendant Juntunen to be found anywhere. The first time Plaintiffs received notice was sometime later when they received a letter from Thomson Township Attorney Pritchett claiming building and fire code violations.
Defendant Thomson Township denied, “They failed to answer all information requests to date. Admissions, First Set (Revised), Thomson Township, etc., 100. Despite this denial, they allowed Plaintiffs to just review his own file, after a five- day wait. No written information requests were ever answered prior to legal discovery.
Defendant Gulland denies that he failed to issue correction orders in writing. Adm. 102. The MN DOLI specifically mentioned this in their finding and decision to censure Defendant Gulland.
Defendant Gulland denies that Duane Grace dictated code compliance. Adm. 103. The MN DOLI specifically mentioned this in their finding and decision to censure Defendant Gulland. “You did not maintain administrative control over this project, thus allowing others to dictate code compliance. This resulted in confusion and/or delays. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.” See also: Depo., Pirila, 121:25, 122:1-25.

STANDARD OF REVIEW

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant “bears the initial responsibility of informing the district court of the basis for its motion,” and must identify “those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.”Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its burden, the nonmovant must respond by submitting evidentiary materials that “set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); see Matsushita Elec. Indus. Co.v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A 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.

A court may grant judgment as a matter of law if no reasonable jury could find the conduct of the Defendants unreasonable. Reasonableness, in regards to plan reviews, means projects are managed with due care, due diligence, and good faith. Reasonableness for a building inspector would to be to follow the statutory obligations of his position; obey property rights; and manage with due care, due diligence, and good faith. Reasonableness for a fire chief/deputy fire marshal is to seek consent prior to entry, work with property owners to devise fire plans, and obeying property rights. Reasonableness for a township and fire department would be to investigate complaints, maintain records, and maintain public trust. Immunity is the exception and not the rule. “There is perhaps no doctrine more firmly established than the principle that liability follows tortuous wrongdoing; that where negligence is the proximate cause of an injury, the rule is liability and immunity is the exception.” Ryan, 134 Ariz. at 309, 656 P.2d at 598, quoting Stone, 93 Ariz. at 393, 381 P.2d at 112, modified by statute as stated in Tucson Unified Sch. Dist. v. Owens Corning Fiberglass Corp., 174 Ariz. 336, 339, 849 P.2d 790, 793 (1993).

ARGUMENT

I. IS THE THOMSON FIRE DEPARTMENT AN ENTITY SUBJECT TO SUIT?

Fire Departments are frequently sued for negligence, deliberate indifference, and civil rights claims. There appears to be no policy in place to establish property inspections, no records, and no accountability.

II. HAVE PLAINTIFFS ESTABLISHED A COGNIZABLE TORT CLAIM?

A. NEGLIGENCE: The Minnesota Supreme Court has stated: If a person of ordinary prudence ought to anticipate from his acts or omissions injury to someone to whom he owes a duty, then it is negligence on his part to so act. If from the negligence an injury flows in unbroken sequence as a natural and probable consequence, liability follows. Keeton, TORTS, § 30 (1987).

Negligence is commonly defined in this state as the doing of something which an ordinarily prudent person would not do or the failure to do something which an ordinarily prudent person would do under like or similar circumstances. Schmidt v Village of Cold Spring, 216 Minn. 465, 13 N.W.2d 382, 384 (1944)

BREACH OF DUTY: Thomson Township owes a duty to plaintiffs because it assumed the duty. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979). Thomson Township has “assumed” this duty by filling four factors identified as tending to show an assumption of a “special” duty. These are: (1) Actual knowledge of a problem; (2) Plaintiffs’ reasonable reliance on representations and conduct of city officials; (3) An ordinance mandating acts by city officials for the protection of a class of persons; and (4) Actions by the city officials that increase the risk of harm.

Knowledge of the Problem: See Thomson Township Attorney Pritchett’s role in undisputed facts. Thomson Township assumed a duty to Plaintiffs by taking active roles in meetings at the Thomson Town Hall regarding building permits. Both Marvin Bodie and Rhonda Peleski took meeting notes in their positions as Administrative Clerk and Deputy Clerk, respectively, and would have been responsible for typing the final notes. Additionally, Town Board Supervisor Ruth Janke participated in one of the meetings. Attorney Pritchett also consulted Zoning Official Rick Bassett and former Zoning Official Marvin Bodie on the building and fire code allegations. Thomson Township voluntarily and actively assumed a duty through its active participation in the building permit process.

Assumption of Duty by Jeffrey Juntunen and Thomson Township Fire Department: Defendant Juntunen trespassed into the personal premises of Plaintiffs, allegedly while looking for them. Defendant Juntunen claimed he entered to discuss the pile of slats located outside the west side of the main building. This external situation, and the fact that it had been in place for a period of time, did not merit entry. He made no attempt to contact Plaintiffs prior to entry. He willingly and willfully committed an illegal action upon which he proceeded to make claims against the Plaintiffs. Acting as the fire chief, he effectively represented the Thomson Township Fire Department, and voluntarily and willfully assumed a duty to Plaintiffs.

Also, Defendants Jeffrey Juntunen and Thomson Township Fire Department voluntarily assumed a duty to Plaintiffs by developing fire orders for their property, unbeknownst to them. Defendant Juntunen also helped develop the fire alarm system to be used at Plaintiffs property.

Plaintiffs’ reasonable reliance on representations and conduct of city officials: Defendants Gulland has extensive expertise in the administration of Minnesota Building Codes. Thomson Township Attorney David Pritchett was aware of the Plaintiffs claims of trespass.

An ordinance mandating acts by city officials for the protection of a class of persons: Thomson Township has no such ordinance, nor is it required. Cracraft, 279 N.W.2d at 806-807. It is not necessary to satisfy all four of these factors. See Andrade v. Ellefson, 391 N.W.2d 836, 841-42 (Minn. 1986) (finding third factor dispositive because persons comprising at-risk class were unable to protect themselves). “Our cases have never held that the absence of third factor is dispositive. The third factor is but one of four factors. If it were to have more significance, it would be an element and not just a factor.”

Contractor Jake Fjeld and Mark Blomquist reported that Defendant Juntunen was inside the locked building when they arrived on one occasion. Defendant Juntunen denies that contractors found him inside the locked building when they arrived. Adm., Thomson Township, etc., First Set (Revised), 31. Defendant Juntunen denied he used his old key to access Plaintiffs’ property. Id., 30. Thomson Township has no written key policy and no accounting for what keys had been returned. Aff. Pirila ¶24, Ex. 21(23, 29).

The case of Tom Beuchler Construc., Inc. v. City of Williston, 392 N.W.2d 403 (N.D. 1986) is instructive. Beuchler is a classic case of special relationship or duty, similar to Plaintiffs. Thomson Township owned the Old Washington School property since 1980 and sold it to the Plaintiffs in 2006. Plaintiffs endured four hours of questions and answers with Thomsons Zoning Board, and discussed the several restrictive covenants imposed by Thomson Township. Defendant Gulland, as a part-time building inspector for Thomson Township, retained an office in the Thomson Township Hall, as he did in the Old Washington School (1995-2006) when the township owned it. Plaintiffs relied on Thomson Townships’ building permits and inspection to be accurate, honestly derived, and fair.

Personal Injury Claims (Duty, Breach, Causation, and Harm)

Element One (Duty): Defendant Gulland was a part-time building inspector for Thomson Township, relegating several of his duties to Defendant Grace. Thomson Township has repeatedly used Defendant Grace to assist on Commercial projects. Defendant Grace did the plan review and almost everything else for Plaintiff’s project, except for inspections and issuing building permits/certificate of occupancies. The MN DOLI cited Defendant Gulland for not maintaining administrative control when it censured him. The MN DOLI determined that Defendant Grace was dictating code compliance, when that duty belonged to Defendant Gulland. Dictating code compliance is not within a Plan Reviewers scope of duty. Defendants Grace and Gulland failed to recognize each other’s errors, seemingly not reviewing each other’s work. Depo., Pirila, 120:21-25, 121:1. Thomson Township has an obligation to assign duties to the responsible official. Thomson Township uses Defendant Grace more as a subordinate building inspector than a plan reviewer. Defendant Grace tends to control the process when involved, rather than conducting a mere outside review.

Element Two: Breach of the Duty of Reasonable Care. Defendant Gulland merely had to follow the statutes and the ministerial duties. Defendant Gulland failed to conduct himself in a reasonably prudent and careful manner by failing to perform operational level duties, trespassing, and retaliating. Defendant Gulland’s retaliation for the MN DOLI investigation constitutes a violation of Minn. Stat. § 326B.082, Subd. 11 (7) that states:

“retaliated in any manner against any employee or person who is questioned by, cooperate with, or provides information to the commissioner or an employee or agent authorized by the commissioner who seeks access to property or things under subdivision 2.”

Element Three: The Defendant’s Breach Must Proximately Cause the Plaintiff’s Damages. The defendant’s negligence resulted in the loss of the gym for rentals, room rentals, and caused enforcement of non-applicable energy codes driving costs much higher. Production of Documents, Thomson Township, etc., Ex. A, TH 652-660. It is noteworthy to mention that the Thomson Township building has no gymnasium and Plaintiffs would have had a distinct advantage for renting. In fact, the Plaintiffs received many inquiries into use of the building facilities.

Element Four: The Plaintiff Must Suffer Compensable Injuries or Damages. See Element Three. Government officials have a duty to not knowingly act contrary to existing law. The knowledge that a particular action is illegal creates a duty to avoid such action. Thomson Township, via its attorney David Pritchett, was fully aware of Plaintiffs claims that Defendants Juntunen and Gulland trespassed, yet did nothing to prevent its reoccurrence.” The basic elements of actionable negligence are a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach.” Ballesteros v. State, 161 Ariz. 625, 627, 780 P.2d 458, 460 (App. 1989). Duty is simply a question of whether “the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff.” Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). If there is a duty, then a defendant must “act reasonably in light of the known and foreseeable risks. It is here, in determining whether the defendant acted reasonably or negligently, that the law concerns itself with specifics of defendant’s conduct.” Id. At 357, 706 P.2d at 369. Reasonableness is generally a jury question, see id. At 358, 706 P.2d at 370, and Bellezzo v. State, 174 Ariz. 548, 551, 851 P. 2d 847, 850 (App. 1992). Plaintiffs called for Defendant Gullands’ removal after he trespassed, failed to put orders in writing, and kept everything ambiguous. The intent on Defendant Gulland’s part seemed to evidence a motive to delay the project as much as possible.

The harm was foreseeable by Thomson Township as they were included in complaints regarding the conduct of Defendants Gulland and Juntunen. Thomson Township chose to ignore the requests and support the accusations of both Defendants gained by trespass. Defendants Gulland and Juntunen actions were related to, and connected with acts otherwise within the scope of his employment.

It is simply unreasonable for a building inspector and plan reviewers not to know the significance of GREB, Existing Building provisions, intentionally delay permits, and create ambiguity. A reasonable person, given the same experience and circumstances, simply would not trespass or enter private property without proper consent. A reasonable Township/Fire Department would not dissuade others from answering questions; ignore questions themselves; violate the public trust; lack proper records; lack key accountability; fail to inquire into complaints, particularly those that involve criminal acts; and fail to maintain transparency at all costs.

Because the standard of care required to fulfill a duty is a question of reasonableness, a court may grant judgment as a matter of law only if no reasonable jury find the defendant’s conduct unreasonable. Markowitz. When “evidence is offered from which a fact-finder could reasonably conclude that the public agency or jurisdiction should have foreseen a danger to plaintiff…then the question of [that public entity’s] negligence is one for the jury.” Id.; see Markowitz, 146, Ariz, at 358, 706 P.2d at 370; Bach, 152 Ariz. At 149-50, 730 P.2d at 858-59.

See actual costs. Aff. Pirila, ¶98.

Liability follows Breach of Duty: When Thomson Township employed Defendant Gulland for his services; he assumed a duty to both Plaintiffs and Thomson Township. This duty was to review building plans for the correct building codes first, and then their provisions. Defendant Gulland has an established duty to review plans for compliance with proper building codes. Failing to follow Minnesota Statutes and Minnesota Rules is a breach of duty to plaintiffs.

Negligence: The Government Tort Liability Act (GTLA) defines negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” GTLA dismisses claims of immunity from suit to government when their conduct is grossly negligent and the “proximate cause” of Plaintiffs injuries. According to Title 14 - § 8111 (1) employees of governmental entities shall not be immune from the personal civil liability in which an employees actions are found to have been in bad faith [2001, c. 662, § 9]. Gross negligence or willful or wanton misconduct are grounds for liability. See 46-23-511, Immunity from suit.

The law takes into account a person’s knowledge, experience, and perceptions in determining whether the person has acted as a reasonable person would have acted in the same circumstances. A building inspector is engaged in activity requiring special skills, education, training, or experience, and the standard by which their conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity.

Defendant Gulland failed to conform to minimal standards of acceptable practice for a building inspector. Defendant Gulland failed to exercise the degree of care rendered appropriate by the particular circumstances and that of an individual of ordinary prudence in the same situation and with equal experience. The intentional failure to perform a manifest duty affecting the life or property of another constitutes “gross negligence.”

Defendant Gulland retaliated against plaintiffs during the MN DOLI investigation by continuing to refuse to state requests in writing, making unscheduled visits, and continuing to treat the project in violation of state building codes, statutes, and rules. The illegal/unauthorized entries violated the Fourth Amendment rights of Plaintiffs. The continued misconduct of Defendant Gulland resulted in a delay in the completion of the MN DOLI investigation that was due in June of 2009. Instead it was completed in late September of 2009. “Causal connection may be inferred by adverse inspection action closely after protected conduct (investigation.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 445 (Minn. 1983).

GREB is mandatory once requested and applicable, unless an alternate code or method is requested and approved. It is a “gross deviation from the standard of ordinary care.” State v. Jude, 554 N.W.2d 750, 755 (Minn. App. 1996).

Malicious means “nothing more than the intentional doing of a wrongful act without legal justification or excuse,” id. (Citations omitted), or in other words committing acts “while having reason to believe they are prohibited. Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. Appl. 1997), review denied (Minn. May 20, 1997) (citations omitted). Intentionally making entry without the consent of Plaintiffs is clearly an intentional doing of a wrongful act without legal justification or excuse.

Minn. R. 1300.0110, Subp. 8, Action on application, states, “The building official shall examine or cause to be examined applications for permits and amendments within a reasonable time after filing. If the application or the construction documents do not conform to the requirements of pertinent laws, the building official shall reject the application and notify the applicant of the reasons. The building official shall document the reasons for rejecting the application. The applicant may request written documentation of the rejection and the reasons for the rejection. When the building official is satisfied that the proposed work conforms to the requirements of the code and applicable laws and ordinances, the building official shall issue a permit.”
Plaintiff Pirila insisted on being copied on all correspondence as he was acting as his own General Contractor. Despite this request, he was routinely bypassed. Depo., Pirila, 115:3-13,118:12-25,119:1-6.

Deliberate Indifference: The deliberate-indifference standard is a subjective one: "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. The official need not believe that serious harm will actually befall an inmate; it is sufficient that the official knows of a substantial risk that the inmate will suffer serious harm. Id. at 842, 114 S.Ct. 1970. Defendants Gulland and Juntunen trespassed with the knowledge of causing harm to Plaintiffs.

Plaintiffs were homeless for nine months and Plaintiffs children were subjected to a whole different lifestyle; living in a bedroom without benefits of an actual home. Defendants were aware of the situation and did nothing to move the process along. Depo., Pirila, 108:6-13. Punitive Damages (Minnesota Statutes 2006, 549.20)

Subdivision 1: Standard. (a) Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others. [Deliberate Indifference is defined as the conscious or reckless disregard of the consequences of one's acts or omissions, and would include trespass] Likewise, the omission of a completed on-site inspection card, the lack of written orders, and the missing required inspection reports at Thomson Township is by definition, deliberate indifference.]

Minn. Stat. § 626.556 Subd. 4, Section (c) specifically states that there is no immunity for any person failing to make a required report. Subdivision 5, states “any person who knowingly or recklessly makes a false report under the provisions of this section shall be liable in a civil suit for any actual damages suffered by the person or persons so reported and for any punitive damages set by the court or jury, plus costs and reasonable attorney fees.”

A person is guilty of Deliberate Indifference if he or she: Subd. (a) (1) deliberately proceeds to act in conscious and intentional disregard of the high degree of probability of injury to the rights or safety of others; or [The decision to disregard GREB, as well as trespass, shows a deliberate disregard for the probability of injury to Plaintiffs. The decision of Defendant Gulland to maintain a high level of ambiguity in Plaintiffs project, despite many requests for written orders, shows a deliberate, conscious, and intentional disregard for the probability of injury.] (2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others. [Defendant Gulland’s actions during investigation by the MN DOLI are evidence of his continued disregard for the rights of Plaintiffs.]

Subd. 3. Factors. Any award of punitive damages shall be measured by those factors which justly bear upon the purpose of punitive damages, including the seriousness of hazard to the public arising from the defendant’s misconduct, the profitability of the misconduct to the defendant, the duration of the misconduct and any concealment of it, the degree of the defendant’s awareness of the hazard and its excessiveness, the attitude and conduct of the defendant upon discovery of the misconduct, the number and level of employees involved in causing or concealing the misconduct, the financial condition of the defendant, and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards to the plaintiff and other similarly situated persons, and the severity of any criminal penalty to which the defendant may be subject.

Seriousness of hazard to the public arising from the defendant’s misconduct: Citizens rely on public officials to provide public safety to all, without exception. In the course of regular, non-emergency times, public officials are expected to follow the laws and rules applicable to their positions. Public trust is undermined by violations of Minn. Statutes and Minn. Rules. Improper professional conduct and ethics violations add to the mistrust of public officials. Plaintiffs have experienced all of the violations at the hands of several Thomson Township employees and contractors.

The profitability of the misconduct to the defendant: Thomson Township, in their new location, gained significant monies by the actions of John Gulland and Duane Grace in the form of additional rental fees and establishment of precedence for future rentals.

The duration of the conduct and any concealment of it: The improper conduct from John Gulland, building inspector, and Duane Grace, plan reviewer, began at the very start of the project in 2007. John Gulland was involved from 2007 until he left Thomson Township in June of 2009. Jeffrey Juntunen was involved from 2008 to 2009. David Pritchett, Thomson Township attorney was involved from 2006 to 2010. Ruth Janke was informed of the fire departments orders on February 12, 2009. Terry Hill and Ruth Janke were informed by email of problems in 2008, Brett Pykkonen, Thomson Township Fire Department, was informed of fire department allegations on February 13, 2009, by Ruth Janke.

Concealment: All information requests were ignored. The files David Pritchett claimed to have based his letter of alleged building and fire code violations lacked any reference to Minn. Statutes or Rules regarding fire code violations. Additionally any claims of alleged building and fire code violations were based on illegal trespass.

The degree of the defendant’s awareness of the hazard and its excessiveness: Defendants were made fully aware at the earliest possible time of misconduct. The misconduct included trespassing, ongoing harassment, and false allegations.

The attitude and conduct of the defendant upon discovery of the misconduct: Indifference.

The number and level of employees involved in causing or concealing the misconduct: Seven (7): Rick Bassett (Zoning), Marvin Bodie (Administrative Clerk), Jeffrey Juntunen (Fire Chief/Deputy Fire Marshal), Duane Grace (Plan Reviewer), John Gulland (Building Inspector), David Pritchett (Attorney), Rhonda Peleski (Deputy Clerk), and Paul Sandstrom (Plumbing Inspector).

The financial condition of the defendant: Thomson Township should be bonded for $1.5 million. Thomson Township Fire Department should be bonded for another $1.5 million. Jeffrey Juntunen, Duane Grace, and John Gulland should be bonded by Thomson Township for their services for roughly $1 million each. Jeffrey Juntunen and John Gulland carry their own insurance that is expected to be around $1 million each.

The total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct including compensatory and punitive damage awards to the plaintiff and other similarly situated persons: $5 million to plaintiffs.

The severity of any criminal penalty to which the defendant may be subject: Defendant Gulland was censured but beyond that there has been nothing in terms of disciplinary action by Thomson Township.

Punitive Damages: Punitive damages exist for misconduct pursuant to Minn. Stat. § 549.20 Subd.1-3. Personal liability may attach to building officials who failed to act in good faith and acted with malice in the discharge of duties (Minn. R. 1300.0110). Liability may exist for actions not done in good faith or actions outside the scope of duties (Minn. § 317A.257).

Failure to provide Promised Information/Failure to Investigate: Thomson Township attorney David Pritchett agreed to provide information in his January 15, 2010, letter, yet never did. They [Thomson Township] have also interfered with the process of information gathering by encouraging employees and volunteers not to answer unofficial information requests. Mr. Pritchett claims the information requested by plaintiffs was “inappropriate, and you are hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town.” Such a request by a person acting Pro Se is legal and especially appropriate when the town continually fails to respond to requests.

Thomson Township admitted it never made any inquiry into the conduct of John Gulland or Jeffrey Juntunen. Adm., First Set (Revised), Thomson Township, etc.,65, 66. See also: Depo., Pirila, 71:5-14. Defendant Gulland received no discipline from Thomson Township after being censured by the Minnesota Department of Labor and Industry. Thomson Township admitted it never disciplined Defendant John Gulland. Adm., First Set (Revised), Thomson Township, etc.,65. Thomson Township admitted it never disciplined Defendant Jeffrey Juntunen. Adm., First Set (Revised), Thomson Township, etc.,66.

Thomson Township officials demonstrated deliberate indifference when they knew of frequent constitutional violations, but nonetheless allowed their subordinates, or in this case contracted employee, to act without any rehabilitative warnings, discipline, or training. City of Canton, Ohio v. Harris, 489 U.S. 378 (1989).

Ambiguity: Both Defendants Grace and Gulland continually switched positions on what was required for a temporary certificate of occupancy. Depo., Pirila, 121:2-25, 122:1-25. To make matters worse, Defendant Gulland refused to put orders in writing as required by statute. The intent, or end result, was a constant state of ambiguity. Any ambiguity or uncertainty as to their meaning must be resolved in favor of the aggrieved. Ambiguity presents a genuine issue of material fact necessitating a trial. Minn. Stat. § 645.16. “If any doubt exists as to the existence of a material fact, the doubt must be resolved in favor of finding that a fact issue exists.” State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

Defendants failed to follow Minn. Stat. § 16B.59 State Building Code that includes “The construction of buildings should be permitted at the least possible cost consistent with recognized standards of health and safety,” by refusing to allow GREB.

The statutes violated are unambiguous and with only one reasonable interpretation. Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn. 1999). A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000). Case law is not required when a statute is clear and requires no interpretation. According to 2008 Minnesota Statutes 645.16, “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”

Section 1983 Claims: Plaintiffs make claims under 42 U.S.C. § 1983 for alleged violations of their rights under the Fourth, Fourteenth, and Fifth Amendments to the United States Constitution. A § 1983 claim requires a showing of: “(1) [a] violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right” (Shrum v. Kluck, 249 F.3d 773, 777 (8th Cir. 2001)). Defendants Gulland and Juntunen both trespassed, knowingly violating constitutional rights of plaintiffs. They are both considered state actors, and are known to be at fault for multiple trespasses and the subsequent reports they made based on these trespasses.

The Supreme Court, in Monell v. Dept. of Social Servs., 436 U.S. 658, 691 (1978), held that a municipality could be sued under section 1983 for the entity’s unconstitutional policies or customs. Id at 694. To establish liability, Plaintiffs must prove that a municipal policy or custom was the moving force [behind] the constitutional violation.

A custom is demonstrated by: (1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) the plaintiff’s injury by acts pursuant to the governmental entity’s custom. i.e., proof that the custom was the moving force behind the constitutional violation. Ware v. Jackson County, Mo., 150 F.3. 873, 880 (8^th Cir. 1998).

Punitive Damages (Section 1983 Claims) are available against individual state actors upon a showing that the conduct was “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade 461 U.S. 30, 56, 75 L. Ed. 2d. 632, 103 Sup. Ct. 1625 (1983). “The purpose of Punitive Damages is to punish the Defendant for his willful or malicious conduct and to deter others from similar behavior.” Memphis Community School District v. Stachura, 477 U.S. 299, 306 note 9, 910. Ed. 2d 249, 106 Sup. Ct. 2537 (1986).

Section 1985 Claims: Defendants violated 42 U.S.C. § 1985 by conspiring to deny Plaintiffs their civil rights. These rights include the sanctity of one’s own home, claims that aren’t based on illegal trespass, and the good faith efforts of public officials. Plaintiffs’ contend there was intent to violate Plaintiffs’ civil rights, conduct in furtherance of a conspiracy to do so and there were damages resulting from such a conspiracy.

Thomson Township had numerous individual actors who participated in the deprivation of Plaintiffs’ civil rights. Rick Bassett (1), then zoning official for Thomson Township, told Plaintiffs banker, James Kallestedt (Wells Fargo), there were problems between Plaintiff Pirila and Defendant Gulland.

Marvin Bodie (2), then administrative clerk for Thomson Township, took notes and inappropriately included notes not discussed by Defendant Gulland with Plaintiffs (3) in the final notes. Production of Documents, First Set, Thomson Township, etc., Ex. A, TH 155. Defendant Gulland included these notes in his final summary. Id., TH 154. Mr. Bodie violated Minn. Stat. § 367.11 (1) by failure to keep a “true record” of the proceedings. Defendant Gulland’s decision to include them was simply malice. Despite these facts, Defendant Gulland denies including these additions. Adm., First Set (Revised), Thomson Township, 118. Defendant Gulland denies knowledge of these notes. Interrogatories, John Gulland, 29.

David Pritchett (4), Thomson Township attorney, failed to provide information as he promised. Mr. Pritchett also penned the letters citing building and fire code violations that were premised on trespass. Mr. Pritchett went so far as to try to coerce Plaintiffs into not requesting information from volunteer fire fighters, calling it “inappropriate.” Defendants Juntunen (5), Grace (6), and Gulland are both addressed more fully throughout these proceedings. Thomson Township Plumbing Inspector Paul Sandstrom (7) also brought Defendant Gulland along on a plumbing inspection unbeknownst to Plaintiffs. This makes no less than seven Thomson Township employees, former employees, and contractors that participated in wrongdoing.

Plaintiffs contend the numerous individual actors, acted in unity, to deprive them of their property, allowing Thomson Township additional time to get settled in their new location. Thomson Township sanctified misconduct by Defendants Gulland and Juntunen by supporting their actions via letters, information requests, and failing to investigate or even record complaints. Depo., Pirila, 48:11-20.

To prove the existence of a civil rights conspiracy under § 1985(3), the Plaintiffs must prove: (1) that Defendants did conspire, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or equal privileges and immunities under the laws, (3) that one or more of the conspirators did, or caused to be done, any act in furtherance of the object of the conspiracy, and (4) that another person was injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States. Larson by Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (quotation marks omitted). The “purpose” element of the conspiracy requires Plaintiffs to prove a class-based “invidiously discriminatory animus.” See id. Plaintiffs must allege with particularity and specifically demonstrate with material facts that Defendants reached an agreement, for example, by pointing to at least some facts which would suggest Defendants reached an understanding to violate Plaintiffs’ civil rights. See id.

There have been numerous constitutional and statutory violations by Defendants Gulland and Juntunen. Defendant Gulland has been “censured” by the MN DOLI for some of the MN Rules and Statutes he violated. The MN DOLI denied investigating entry concerns as they considered them criminal. The State Fire Marshals lacked jurisdiction to investigate Defendant Juntunen unless he was identified as acting as the Deputy Fire Marshal. These constitutional and statutory violations, as well as criminal trespass, dismiss any claims individual defendants have to qualified immunity (Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)). See Hayek v. City of St. Paul, 488 F.3d 1049, 1054-55 (8th Cir. 2007).

Tortious Interference: Success on Plaintiffs’ tortious interference with business expectancy claim requires a showing of (1) the existence of a reasonable expectation of economic advantage or benefit belonging to Plaintiffs; (2) that Defendants had knowledge of that expectation of economic advantage; (3) that Defendants wrongfully and without justification interfered with Plaintiffs’ reasonable expectation of economic advantage or benefit; (4) that in the absence of the wrongful acts of Defendants, it is reasonably probable that Plaintiffs would have realized their economic advantage or benefit; and (5) that Plaintiffs sustained damages as a result of this activity. See Harbor Broad, Inc. v. Boundary Waters Broad, Inc., 636 N.W.2d 560, 569 (Minn. Ct. App. 2001). The Plaintiffs meet these requirements: (1) Plaintiffs’ property has an economic advantage in that it has a gym and had many classrooms for rent. The new Thomson Township Hall has no gym and limited rooms. The gym and the rooms had a long history of renters, many of them that used just the gym. (2) Thomson Township was the party that sold the property to Plaintiffs after residing in it themselves for about 13 years. (3)Defendants wrongly kept Plaintiffs from renting the gymnasium and rooms by Defendants Gulland and Grace’s insistence that GREB and “Existing Buildings” provisions did not apply. The whole building was treated by Defendants Gulland and Grace as a new construction, resulting in inapplicable energy codes being enforced. Defendant Gulland refused to put orders in writing, failed to complete the on-site inspection card, made entries without consent, and created ambiguity wherever he could.

These actions led to great delays in obtaining permits, as well as driving up costs. Absent the wrongful acts of Defendants, the Plaintiff’s would have continued renting the gymnasium and classrooms just as Thomson Township had up to Plaintiff’s purchase. Plaintiffs have sustained substantial losses due to the loss of rental revenues, depreciation, higher interest rates loan (due to missing revenues), and higher architectural/design costs. Plaintiff’s incurred additional costs from living out of bags while residing with Plaintiff Pirila’s sister, which is also located in another school district.

Architect Adams didn’t even specify what Minnesota Building Code he used until the second building permit had already been issued. How then, can he have “supposedly” requested an alternative to GREB? If true, where is the documentation requesting this change and Defendant Gullands’ approval? There is none, because it simply isn’t true. This is clearly a false material statement that Defendant Gulland knew to be untrue when he wrote it. The intent of this statement and the material weight it carries in this case is deserving of a charge of perjury.

Fraud: Plaintiffs allege fraud against Defendants Gulland and Grace. To establish a claim for fraud or misrepresentation, a plaintiff must demonstrate:

1. MADE A REPRESENTATION: Defendant Gulland stated from the beginning than a “change in ownership” constituted a “change in occupancy.” Defendant Gulland treated the Plaintiffs nearly 100-year-old building as a new construction, and dismissed arguments for GREB or provisions for “Existing Buildings. Thomson Township attorney David Pritchett claimed Plaintiff’s information inquiries “inappropriate, and you are hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town.”

2. THAT WAS FALSE: Nothing in the building codes supports that a “change in ownership” is a “change in use.” In fact, there is nothing about a “change in ownership.” A nearly 100-year-old building is clearly not a new construction and should not be treated as one. Even when Defendant Grace acknowledges the applicability of GREB, neither him nor Defendant Gulland ever allow it. Thomson Township: Information requests by a person acting Pro Se is legal and especially appropriate when the town continually fails to respond to requests. Attorney Pritchett never produced any data thereafter that he initially claimed as “public data.” In fact, he originally said this information was available via the terms of the Data Practices Act. Ironically, much later, in the beginning of the discovery process, Iverson-Reuvers, counsel for Defendants, proved that the Data Practices Act did not apply to Thomson Township. Therefore, the information that Attorney Pritchett promised never became available as he promised, and was left to the discovery process.

3. HAVING TO DO WITH A PAST OR PRESENT FACT: GREB has been in existence since 2000 and subject to infrequent changes as it is incorporated by reference with the most recently adopted Minnesota State Building Code. It is highly improbable and unreasonable that two experts in Building Codes, Defendants Gulland and Grace, are unaware of GREB. Thomson Township: The Data Practices Act and FOIA did not apply to the information desired by Plaintiffs and Attorney Pritchett improperly interfered with information requests made by Plaintiffs.

4. THAT IS MATERIAL: GREB applied on a large level in Plaintiffs project, and the refusal and neglect of Defendants Grace and Gulland to use it resulted in enormous financial losses. Because GREB wasn’t properly allowed, Plaintiffs were forced to meet inapplicable energy codes. These energy codes forced Plaintiffs to add new 2x6 exterior walls throughout the building. This meant gutting what was already there, rewiring, re-plumbing, insulating, sheet-rocking, and painting everything. Thomson Township: This information was and is material to Plaintiffs case. There was a probability that some of the issues now being discussed in court would have been resolved.

5. AND SUSCEPTIBLE OF KNOWLEDGE: The request for GREB and “Existing Building” provisions, as well as required training by the building inspector Defendant Gulland leave no reason for any claims of ignorance. Defendant Gulland has acknowledged his oversight of GREB projects in Duluth, MN. Thomson Township: Attorney David Pritchett is contracted to represent the interests of Thomson Township and be current on public information requests. Depo. Pirila, 59:3-25, 60-65:1-25, 66:1-22.

6. THAT THE REPRESENTOR KNOWS TO BE FALSE OR IS ASSERTED WITHOUT KNOWING WHETHER THE FACT IS TRUE OR FALSE: Defendant Grace states that GREB applies as early as July of 2007, but the Administrative Official (Defendant Gulland) does not. Defendant Gulland says the “change in ownership” is a “change in occupancy” and is the same as making the 100-year-old building the same as a new construction – at least as far as building codes were concerned. Defendant Gulland has admitted he has overseen GREB projects in Duluth, MN. Thomson Township: Attorney David Pritchett has been acting legal counsel for Thomson Township for several years and reasonably aware of public information requests.

7. WITH THE INTENT TO INDUCE THE OTHER PERSON TO ACT: Defendant Gulland’s refusal to admit GREB resulted in the Plaintiffs changing the order in which the building was developed. Originally, Plaintiff’s first priority was going to be the use of the gym, but after Defendant Gulland said it had to be treated as a new construction, they made their residence the top priority. Thomson Township: Attorney Pritchett’s words were taken by them as an attempt to coerce them into silence or down a path where Thomson Township could control the information they would receive.

8. AND THE PERSON IN FACT IS INDUCED TO ACT: Defendant Gulland’s claims led Plaintiffs to change their order of development and formed the design process for Designer Greg Hallback. Plaintiffs did not request to replace GREB with an alternative method or code. Therefore, it wasn’t proper for Defendant Gulland to ignore. Thomson Township: Plaintiffs withheld from further information requests while waiting on Thomson Townships response to information requests as promised by Attorney Pritchett.

9. IN RELIANCE ON THE REPRESENTATION: Plaintiffs relied on Defendant Gulland to be accurate and fair in his interpretations of Minnesota State Building Codes. An expert like Defendant Gulland should reasonably be diligent in their reviews and if a mistake was made pick it up and make the correction. It is grossly negligent to treat the process with such a lack of due care that you simply take the plan reviewers word without properly performing the duties of your own position. The negligence of one was only compounded by the added negligence of the other. It is not reasonable or logical that building codes experts Defendant Gulland could mistake or treat a nearly century old building as a new construction, failing to recognize GREB (even though it was requested) or provisions for “Existing Buildings” (even though it had been requested). Thomson Township: Plaintiffs relied on Attorney Pritchett’s response that the Data Practices Act would allow them the information they requested.

10. THE PLAINTIFF SUFFERED DAMAGES: Plaintiffs paid enormously for the applicability of energy codes that did not apply the loss of the gym due to fraud, and lengthy delays in the building permit that ensued. Thomson Township: The lack of promised information, in part, led to the filing of this lawsuit. The same information Attorney Pritchett had promised was then sought through the legal discovery process.

11. ATTRIBUTABLE TO THE MISREPRESENTATION: See 10. Thomson Township: This lawsuit is in part, attributed to the failure of Thomson Township to provide information as promised, as well as intervene in regards to Plaintiffs complaints regarding Defendant Gulland.

Defendant Gulland had an obligation to complete the on-site inspection card, maintain inspection records at Thomson Township, put orders in writing, and enforce the building codes with due care. It is not reasonable for two building code experts, Defendants Gulland and Grace, to enforce building codes that weren’t adopted or treat an old, existing building as new construction. It is not reasonable for building codes experts to ignore exceptions and provisions allowed for “Existing Buildings.” See Depo., Pirila, 91:4-9. It is inconceivable that Defendants Grace and Gulland would miss GREB for a rehab, particularly after it was brought to their attention. Depo., Pirila, 130:1-12.

Fourth Amendment: Plaintiffs claim Defendants violated Plaintiffs’ Fourth Amendment right to freedom from unreasonable searches and seizures when Thomson Township code enforcement and fire code enforcement officers conducted warrantless searches of Plaintiffs’ property without valid consent. Depo., Pirila, 46:18-25, 47:1-25, 48:1-20. Plaintiffs have reasonable expectation of privacy in their property. Depo., Pirila, 68:8-18.

The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The Fourth Amendment offers protection against all government invasions “of the sanctity of a man’s home and privacies of life.” The protection of one’s security and privacy in one’s home is a delicate balance between personal autonomy and state control. The Fourth Amendment guarantees citizens the right to maintain the sanctity of one’s home. The state’s right to access is dictated through state statutes, federal laws, and the U.S. Constitution.

The Defendants cannot show one scintilla of evidence that Plaintiffs denied them reasonable access for purposes of inspection. Defendants Gulland and Juntunen cannot decide themselves when and under what conditions they will make access and conduct whatever search they desire. They are obligated to seek consent from Plaintiffs/home owners, and in the denial of proper consent, seek a search warrant. Warrants shall be issued upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Defendants Gulland and Juntunen did neither. A search’s reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 (’83). Probable cause is dependent on the ruling of the court who decides whether a warrant will be issued and what areas are included. This item is moot, as Defendants Gulland and Juntunen did not seek consent of any kind prior to entries.

“An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. at 421-422. The searches made by Defendants Gulland and Juntunen were clearly done as arbitrary acts of government agents.

The court has held that warrantless inspections in nonemergency situations were unconstitutional (Camara vs. Municipal Court of San Francisco, 387 U.S. 523 (1967)). This decision held in part, “1. The Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code-enforcement inspection of his personal residence. Frank v. Maryland, supra, pro tanto overruled. Pp. 528-534. With certain carefully defined exceptions, an unconsented warrantless search of private property is “unreasonable.” Pp. 528-529. Contrary to the assumption of Frank v. Maryland, supra, Fourth Amendment interests are not merely "peripheral" where municipal fire, health, and housing inspection programs are involved whose purpose is to determine the existence of physical conditions not complying with local ordinances. Those programs, moreover, are enforceable by criminal process, as is refusal to allow an inspection. Pp. 529-531. Warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants; [387 U.S. 523, 524] that warrants in such cases are unfeasible; or that area inspection programs could not function under reasonable search-warrant requirements. Pp. 531-533. Probable cause upon the basis of which warrants are to be issued for area code-enforcement inspections is not dependent on the inspector's belief that a particular dwelling violates the code but on the reasonableness of the enforcement agency's appraisal of conditions in the area as a whole. The standards to guide the magistrate in the issuance of such search warrants will necessarily vary with the municipal program being enforced. Pp. 534-539. Search warrants which are required in nonemergency situations should normally be sought only after entry is refused. Pp. 539-540. In the nonemergency situation here, appellant had a right to insist that the inspectors obtain a search warrant. P. 540.

One governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant. See, e. g., Stoner v. California, 376 U.S. 483; United States v. Jeffers, 342 U.S. 48; McDonald v. United States, 335 U.S. 451; Agnello v. United States, 269 U.S. 20.

As the Court explained in Johnson v. United States, 333 U.S. 10, 14: "The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."

“…It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. For instance, even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. And even accepting Frank's rather remarkable premise, inspections of the kind we are here considering do in fact jeopardize "self-protection" interests of the property owner. Like most regulatory laws, fire, health, and housing codes are enforced by criminal processes. In some cities, discovery of a violation by the inspector leads to a criminal complaint. Even in cities where discovery of a violation produces only an administrative compliance order, refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant. Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence.” Camara v. Municipal Court of the City and the County of San Francisco No. 92, Supreme Court of the United States, 387 U.S. 523; 87 S. Ct. 1727; 18 L. Ed. 2d 930, June 5, 1967, Decided.

In the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. Similarly, the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect.

Defendant’s counsel suggests Defendant Juntunen was merely attempting to contact someone on the worksite when he entered Plaintiffs property. There is no evidence that Defendant Juntunen attempted contact. Moreover, the references made by Defendants refer to “open fields” exception to warrantless searches is not applicable because they refer to “outdoor” searches. The big difference here is that there is no societal interest in protecting areas visible to the public, particularly outside, as there is inside an individual’s home. Oliver v. United States, 466 U.S. 170 (1984), 466 U.S. 170 (1984). The case United States v. Pennington, 278 F.3d 739, 745 (8^th Cir. 2002) included a warrant to conduct their search, whereas Defendants Gulland and Juntunen merely conducted a warrantless, unreasonable search lacking justification. The Nikolas v. City of Omaha, 605 F.3d 539, 543 (8^th Cir. 2010) case involves a situation where inspectors had the right to inspect the area outside of the curtilage of the house and in plain view, but needed a warrant to proceed beyond the door to the individuals residence. Defendants Gulland and Juntunen had no warrants, no consent, and made no attempt to contact Plaintiffs prior to entry. The area outside of the curtilage of a house is distinctly different from entry into a house.

Furthermore, in Dean v. Duckworth, counsel for Defendants exaggerated the true result of the findings that property owners had no expectation of privacy in their unoccupied home that was under construction. In Dean there was no entry made and there were just pictures taken of the exterior. This was a construction project in progress that didn’t prevent visual intrusion into it, and the only trespassing signs were put up by a construction worker. In contradiction to Defendant’s counsel claim, Plaintiffs have every reasonable expectation of privacy when it involves entrance to the building. The numerous “no trespassing” signs were in place and had been erected by the Plaintiffs themselves who held a reasonable expectation of privacy. This reasonable expectation of privacy is one that society considers reasonable and common. The notification of any visits could and should have been made in advance with Plaintiff’s consent, or in the absence of consent, a warrant, rather than an arbitrary, unspecified date of Defendant’s choosing.

Defendant’s counsel again exaggerates the final decision in Hope v. Pelzer, 536 U.S. 730, 739 (2002). In the Supreme Court decision on the matter they noted that United States v. Lanier makes clear that officials can be on notice when their conduct violates established law even in novel factual situations. In Hope the policemen could be shielded from liability for their constitutionally [Eighth Amendment] impermissible conduct if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The actions of Defendants Gulland and Juntunen clearly violate established statutory and constitutional rights of which a reasonable person surely would have known.

There is possibly no other common law doctrine more established than that of an individual’s sanctity in ones home free of unreasonable searches. Minnesota Statutes and Rules clearly dictate the statutory terms for “right to entry” for both building inspectors and fire chiefs, yet both Defendant Gulland and Juntunen chose to violate those rules. Any “hazards” referred to by Defendants were not in plain view, and even if they had been would still have required consent or a warrant to justify entry, on an obvious non-emergency basis.

Defendants Gulland and Juntunen make the absurd claim that they reasonably believed they could attempt to locate someone on the property to communicate building and fire code concerns. The responsibility of Defendants Gulland and Juntunen would be to communicate these concerns to the Plaintiffs prior to entry they should have made with consent, not afterwards. Defendants argued that Pearson, 129 S. Ct. at 823, allowed Gulland and Juntunen to enter without consent. In Pearson there was the issue of “consent once removed” where resident Callahan gave consent to an informant entry, who signaled the task force to move in. The only search conducted was a “protective sweep” of the area immediately around the arrestee. This constituted partial consent and only a small area of the residence and does not apply to this case.

FOURTEENTH AMENDMENT: Plaintiffs allege violations of their Fourteenth Amendment right to equal protection as a result of the building code enforcement actions of Defendants. The Equal Protection Clause of the Fourteenth Amendment requires state actors to treat similarly situated people alike and permits state actors to treat dissimilarly situated people dissimilarly (Ganley v. Minneapolis Park & Recreation Bd., 491 F.3d 743, 747 (8th Cir. 2007)). As a threshold matter, Plaintiffs must establish that Defendants treated them differently from similarly situated landlords. Id. In addition to unequal treatment, Plaintiffs must also show intentional or purposeful discrimination. See Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007).

The purpose of a class-of-one equal protection claim is “to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents (”Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiffs may prevail on their class-of-one claim by showing they have been “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Id.; see also Costello v. Mitchell Pub. School Dist. 79, 266 F.3d 916, 921 (8th Cir. 2001).

Plaintiffs argue that Defendant Gulland intentionally and arbitrarily discriminated against them, via the violation of several statutes, Minn. Rules, and criminal trespass. Defendant failed to respond to numerous requests for orders to be put in writing to reduce/eliminate ambiguity. Defendant routinely entered Plaintiffs property without valid consent and unreasonably searched and roamed. These unauthorized entries led to several allegations by Defendant, even though these searches/inspections were illegally conducted. Defendant Gulland adamantly refused to use GREB for this renovation/rehabilitation project, even though he confesses to overseeing the same in Duluth, Minnesota. See Depo., Pirila, 99:17-25, 100:1-2, 129:9-13.

5^th & 14^th Amendments – Whenever a unit of government tries to take away “life, liberty, or property,” the persons involved are entitled to procedures such as a hearing, notice of charges, and a right to present one’s side of the story. Defendants Gulland and Juntunen routinely violated plaintiffs 14th Amendment rights when they trespassed. There was no effort made to obtain proper consent, and in the absence of consent, no warrant. The lack of consent or a warrant deprived Plaintiffs of Due Process rights. Plaintiffs must show that a governmental power was exercised arbitrarily and oppressively to succeed on their substantive due process claims (Rozman, 268 F.3d at 593). The government action must be arbitrary in the constitutional sense. Id. “[T]he theory of substantive due process is properly reserved for truly egregious and extraordinary cases.” Id.

III. ARE PLAINTIFFS’ CLAIMS BARRED BY STATUTORY IMMUNITY?

Statutory immunity exists in cases where there is “any claim based upon the performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6 (2008). Immunity does not extend to acts absent of good faith or those involving malice. Immunity is also forfeited when there is the failure to perform operational (day-to-day) or ministerial duties.

A. GULLAND AND TOWNSHIP

The decisions by Defendants Gulland and Juntunen were not “policy-making” decisions and ministerial in nature. The rules for “entry” are ministerial duties for both. Defendant Gulland also failed to follow the ministerial duties for: On-site inspection cards (non-performance); Written orders; Using GREB for existing buildings, when requested and applicable; Allowing exceptions, particularly energy codes (non-performance); Maintaining administrative control; Using the correct building code; Maintaining records of inspections at township (non-performance); and Rules regarding “Consent to Entry.”

Violations of the statutes discussed herein are clear evidence of intentional neglect of ministerial duties, as well as failure to exercise due care. Discretionary acts require personal deliberation; decision and judgment whereas ministerial duties are absolute and involve merely the execution of a specific duty arising from fixed and designated facts. The definition [ministerial duties] we have routinely stated is that the duty must be “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Wiederholt, 581 N.W.2d at 315 (citations omitted). See also: Rico v. State, 472 N@2d 100, 107 (Minn. 1991). Statutes have the legislative intent of identifying and protecting a particular and circumscribed class of persons. The Plaintiffs argue that the class of persons, in the aforementioned statutes, was intended to protect homeowners from the type of abuses mentioned herein.

See Lodl v. Progressive N. Ins. Co., 253 Wis.2d 323, 646 N.W.2d 314, 321 (2002) (“If liability is premised upon the negligent performance (or non-performance) of a ministerial duty imposed by law or government policy, then immunity will not apply.”); Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002) (stating, “[A] state employee who ‘fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty.’ ”) (citation omitted).

There is no discretionary role in following the strict guidelines as established by statute. Clearly stated statutes dictating aspects of building code administration placed Defendant Gulland in a position of “conduct which merely puts into effect a predetermined plan.” Gonzales v. Hollins, 386 N.W.2d 842, 845 (Minn. App. 1986). By definition, these are operational-level decisions, and not entitled to immunity from liability. Case law is not required when a statute is clear and requires no interpretation.

Operational level decisions are not protected. Pletan v. Gaines, 494 N.W.2d 38, 50 (Minn. Dec. 31, 1992). Holmquist, 425 N.W.2d at 232. An operational level decision involves “conduct which merely puts into effect a predetermined plan.” Building inspector duties are day-to-day or operational duties and not subject to immunity. When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit (Minn. Stat. § 645.16).

The Defendants argue that they are entitled to Statutory Immunity as ruled In Universal Circuits, Inc., et al., v. City of Maple Grove, (Minn. 1996). However, in Universal Circuits the court did not undertake the argument that the city acted outside its allowed discretion in the decision-making process as Plaintiffs are alleging. The Defendants have taken Circuits too broadly in its defense. In Plaintiffs case, it was Defendant Gulland that denied GREB during the initial discussions and designed the rules, along with Defendant Grace, that would result in a building permit. Nearly everything from Defendant Gulland was kept verbal, despite numerous requests by Plaintiffs that orders be put in writing. In essence, Defendant Gulland created the variables that would result in a building permit, even though his intent seemed to be to delay building permits at any cost. This is much like the drawing of sketch discussed in Gilbert v. Billman Constr., Inc. 371 N.W.2d 542, 546-47 (Minn. 1985). By steering Plaintiffs, Defendant Gulland assumed a duty to them. In Circuits the arguments are based just on the issuance of building permits and certificates and their interpretations, after the fact. It fails to go into the ministerial and operational level duties involved in the performance of a building inspector’s duty. Immunity is limited to discretionary conduct and is not applicable to ministerial conduct. Spring Lake Park, 580 N.W.2d at 23. The legislature did not intend to protect municipalities through immunity, from the failure to perform ministerial and operational level duties.

The Supreme Court stated that the primary consideration in determining whether statutory immunity applies is whether the legislature intended to immunize the particular governmental function that gave rise to the tort action. Snyder, N.W.2d at 787 (citing Nusbaum, 422 N.W.2.d at 719). If the intent of the legislature were to grant immunity for all acts and functions of the building official, they would have specified the same. Plaintiffs argue that ministerial and operational level duties exist because of the need for maintaining a delicate balance between government and individual interests. Ministerial and operational level duties provide the basic framework that everyone expects to be followed methodically, providing both interests (government and individual) a common thread in which to manage their objectives. The absence of liability for these mandated duties would not serve the public or individual as there would not be any form of accountability.

“The 2000 Guidelines for the Rehabilitation of Existing Buildings is not subject to frequent change…” Minn. Stat. § 1311.0010 [GREB]. The fact that GREB has been in existence since 2000 and not subject to frequent change offers Defendant Gulland any excuse for failing to use it as applicable. GREB is incorporated by reference and made a part of the Minnesota State Building Code.

Minnesota Building Codes

Thursday, January 12, 2012

Appendix (1) to Petition for a Writ of Certiorari to U.S. Supreme Court

Marvin Pirila & Gail Francette

Marvin Pirila & Gail Francette

$345,000 Rate Monthly Payment Mths thru 10/1/10 Total

PF650-651* 7.0% 3034.16 48 $145,639.68

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