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 2nd) 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.
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:
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 2nd 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 2nd 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.
*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.
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):
oDefendant 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.
oDefendant 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.
oDefendants 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.
oDefendants 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.
oDefendants deny that the many groups listed in Admission 36, were previous occupants/renters of the Old Washington School, when in fact they were.
oThomson 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.
oDefendant Gulland denies he made visits without consent.Adm. 33. [Defendant Gulland did not have proper consent]
oDefendant 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.
oDefendant 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.
oDefendant 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.
oDefendant Gulland denies the wrong building codes were used.Adm. 56.MN DOLI, the building code authority, disagreed.
oDefendant Gulland denies that he failed to follow the rules of Existing Buildings in the IBC (2006).Adm. 57.
oDefendant 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.”
oDefendant 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.
oDefendant 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.
oDefendant 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.
oDefendant 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.
oDefendant 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.
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 Aff. Pirila ¶40.
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 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.
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; Wood v. Strickland, 420 U.S. 308, 322, 327 (1975).
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.
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.”
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.
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.
"[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).
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.
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).
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 (8th 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 (8th 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 (8th 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.
5th & 14th 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 Juntu
nen 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).
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.Malice is also a defense to immunity.
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.
IV.ARE DEFENDANTS ENTITLED TO OFFICIAL IMMUNITY?
Official immunity protects a public official charged by law with duties that call for the exercise of judgment or discretion unless he or she is guilty of a willful and malicious wrong.Gleason v. The Metro. Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998). Official immunity only applies when the officer's acts are judgmental or discretionary. It does not apply to ministerial duties. Id. at 677, Susla v. State, supra, 247 N.W.2d at 912.It is important to identify the specific conduct at issue in the case.Gleason, 582 N.W.2d at 219.
Even if the tasks of public officials Defendant Juntunen, Gulland, and Thomson Township were discretionary, a showing of 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).
Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability).
The willful failure of a public official, namely Defendants Gulland and Juntunen, to comply with a statutory requirement or agency rule is deemed to be an act committed outside the scope of authority.
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.”
V.ARE PLAINTIFFS’ CLAIMS AGAINST THE TOWNSHIP BARRED BY VICARIOUS OFFICIAL IMMUNITY?
Thomson Township is not entitled to vicarious immunity.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).Thomson Township is vicariously liable due to the loss of immunity of its employees who engaged in malicious acts, trespassed, and failed to follow the ministerial, and day-to-day (operational level) duties.
VI.ARE PLAINTIFFS CLAIMS BARRED BY QUALIFIED IMMUNITY?
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)).
Because officials Gulland and Juntunen acted without legal reasonableness in violating a known right, their right to immunity is stripped.Both Defendant Gulland and Juntunen intentionally committed acts they had reason to believe are prohibited and constitute a willful wrong.By unlawfully discharging duties and acting outside of the rights afforded by the building and fire code, Defendants Gulland and Juntunen have committed an intentional tort subject to liability (Minn. R. 1300.0110, Subp. 9). Trespass is just one way in which defendants Gulland and Juntunen have unlawfully discharged their duties.
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).Defendants effectively leave out the “under certain circumstances.”
Trespass:Defendant Gulland trespassed on numerous occasions in violation of state law as well as Minn. R. 1300.0110, Subp 7, which states,
“If it is necessary to make an inspection to enforce the code or if the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition contrary to or in violation of the code that makes the structure or premises unsafe, dangerous, or hazardous, the building official or designee may enter the structure or premises at reasonable times to inspect or to perform the duties imposed by the code, provided that if the structure or premises is occupied, credentials must be presented to the occupant and entry requested.If the structure or 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.”
There was no unsafe, dangerous, or hazardous situation.These were non-emergency, non-life threatening circumstances where consent for entry was just a phone call or letter away.
Nothing in Minn. R. 1300.0110 Subp. 7 allow Defendant Gulland, as his counsel suggests to “be authorized to enter the unoccupied property to attempt to locate someone to communicate building code issues or unpermitted construction.”
Minn. R. 1300.0210, Subp. 4, Inspection requests states, “The building official shall provide the applicant with policies, procedures, and a timeline for requesting inspections. The person doing the work authorized by a permit shall notify the building official that the work is ready for inspection. The person requesting an inspection required by the code shall provide access to and means for inspection of the work.”
The key portion here is that “the person doing the work authorized by permit shall notify the building official that the work is ready for inspection.”Defendant Gulland made several entries without consent or even attempting to seek consent, as well as requiring inspections when work wasn’t ready for inspection.
Defendant Juntunen does not have the authority or right to enter private property, even if the door was open.The mere act of entering private property, occupied or unoccupied, through a locked or open door is trespass, pure and simple.The common law of trespass dictates you stop at the door and knock, maybe even leave a note.The Plaintiffs were just a simple phone call away.Plaintiffs are both small office Postmasters in the local area, and easy to reach.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.They did not, electing to enter known, unoccupied premises at the time.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).
Defendants Gulland and Juntunen have no plausible explanation on how they made entry to a known locked building.The Plaintiffs, Nick Perfetti, and contractors, Mark Blomquist and Jake Fjeld, all verified locked doors that both Defendants Gulland and Juntunen bypassed Depo., Pirila, 37:9-25,38-53:1-25, 54:1-3.Defendants Gulland and Juntunen said they simply entered by an open door.Thomson Township has admitted it has no key policy. [Depo., Pirila, 47:10-16], and therefore they would have no way of knowing who retained their keys for the Old Washington School.
Assuming the door was open, the policy remains the same.No one has the right to enter private premises, door open or not, to conduct any search or otherwise, without the consent of the property owner.A person cannot deny personal knowledge of commonly known property rights as a pretext for trespass.
The absence of a key inventory at Thomson Township invited criminal/unethical activity.It provided an opportunity for anyone with a key to do illegal/unethical things with little chance of detection.Because a corrupt individual is engaging in behavior that could affect their livelihood, such as trespassing in this case, it makes sense they would remove items from the files that would damage their standing.
These trespasses and entries without consent were clear unlawful interference with plaintiffs “constitutionally protected property rights” and unconstitutional deprivation of property without due process. Entry without consent is prohibited by Minn. R. 1300.0110 Subp. 7 and the Constitution of the State of Minnesota, Article 1st Bill of Rights, Section 10.The common law of property, the rights of ownership that include the right to control, possess, enjoy, and dispose of the property, was not honored by Defendants Gulland and Juntunen.
The 2007 Minn. Statute 609.605, Subd. 1 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.
Defendant Gulland should have documented all inspections on-site, and both Defendants Gulland and Juntunen should have documented these visits in the Thomson Township and Thomson Township Fire Department files.There are no files of any kind. There is no reason consent wasn’t sought other than corrupt motive.
Defendants understate the intent and meaning of Minn. Stat. ¶ 299F.09 regarding entry by Fire Chiefs. This clearly states that entry may be made only “after proper consent” or “pursuant to an administrative search warrant.”
Pursuant to 299F.08, Subd. 1, 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 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.Both Defendant Gulland and Juntunen committed acts that constitute violations of Minn. Statute § 609.749, Subd. 1 (1) and (2), Subd. 2, Subd. 5.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.
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.
VII.DO PLAINTIFFS’ PURPORTED VIOLATIONS OF MINNESOTA RULES OR STATUTES FAIL TO STATE A CLAIM?
Stated herein are claims under the Fourth, Fifth, and Fourteenth Amendments. They also make valid claims under Sections 1983 and 1985, as well as Gross Negligence.
CONCLUSION
Defendants owed a duty to plaintiffs because it assumed the duty.Defendants subsequently breached this duty, were the proximate cause of injury, and actual injury occurred.This constitutes negligence.Defendants have failed to follow the ministerial and operational level duties of their positions thereby discharging rights to immunity.The conduct discussed herein is not about discretionary acts, but those duties that are mandatory via State Statutes and Rules.There are no immunity rights to officials not acting in good faith or acting with malice. In the presence of malice and lack of good faith, all immunity defenses are moot.
Defendants have arguably committed perjury in their responses to Admissions and Interrogatories.
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.Trespass itself is an intentional tort.Cleveland Park Club v. Perry, 165 A.2d 48, 488 (D.C. 1960).
Tort claims have been made as a private cause of action and negates counsels claim that no legitimate claims exist.The Plaintiffs make clear charges of gross negligence, Fourth Amendment, Fifth Amendment, Fourteenth Amendment, Section 1983, and Section 1985 claims.
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 nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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). At dispute is whether Defendants Gulland and Juntunen trespassed, and what knowledge did Thomson Township and the Thomson Township Fire Department possessed about these trespasses.
Summary Judgment is unwarranted as several genuine issues of material facts remain in dispute.These include: GREB’s applicability, Energy Code applicability, malice, perjury, false statements, and the scope of culpability of defendants from the Minnesota Department of Labor & Industry investigation censuring Defendant Gulland.
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).
By____________________________________
Marvin Pirila & Gail Francette, Plaintiffs Pro Per
1 N Cloquet Rd W
Esko, MN 55733
(218) 391-2876
Dated October 1, 2010
Despite the ample evidence of the plaintiffs, Judge Dale Wolf declared there was a failure to state a claim, and that the fire chief, Thomson Township, and building inspector had immunity. This despite the numerous exceptions to immunity that were cited and argued. Justice first requires a fair judge who will represent the laws of the state and U.S. and that was undeniably missing. This a typical trampling of individual rights in favor of maintaining the "do anything you want, you have immunity" status of local, county, state, and federal workers. It was high time the laws of the state were administered fairly, according to the law.
