2006-05-19 Filing Affidavit MC, Plaintiffs Notice, Order
.Also licensed in Illinois
COURI, MACARTHUR &
RUPPE, P.L.L.P.
Attorneys at Law
705 Central Avenue East
PO Box 369
St. Michael, MN 55376-0369
(763) 497-1930
(763) 497-2599 (FAX)
courimacarthur@earthlink.net
David R. Wendorf
Kristen H. Carr
Michael C Couri*
Andrew J. MacArthur
Robert T. Ruppe**
..Also licensed in California
May 16, 2006
Wright County Court Administrator
Wright County Government Center
10 N.W. Second Street
Buffalo, MN 55313
Re: City of Albertville v. Edina Development Corporation; Court File No.
C9-05-2481.
Dear Court Administrator:
Please find enclosed for filing in the above-entitled litigation the following
documents:
1. Affidavit of Michael C. Couri.
2. Plaintiffs Notice of Motion and Motion to Amend Complaint and Vacate
Scheduling Order.
3. Order.
4. Plaintiffs Memorandum in Support of Motion to Amend Complaint.
5. Affidavit of Adam Nafstad.
6. Amended Complaint.
Also enclosed is a check in the amount of $55.00 to cover the cost of filing the motion.
Thank you.
~41{~
Michael C. Couri
Couri, MacArthur & Ruppe, P.L.L.P.
Enclosures
Cc: Larry Kruse
..' ..~ l- -.....;) 41
.Also licensed in Illinois
COURl, MACARTHUR &
RUPPE, P.L.L.P.
Attorneys at Law
705 Central Avenue East
PO Box 369
St. Michael, MN 55376-0369
(763) 497-1930
(763) 497-2599 (FAX)
courimacarthur@earthlinknet
David R. Wendorf
Kristen H. Carr
Michael C Couri-
Andrew J. . MacArthur
Robert T. Ruppe--
..Also licensed in California
May 16, 2006
VIA FACSIMILE AND U.S. MAIL
Mr. Kyle Hegna
Wilkerson & Hegna, P .L.L.P.
One Corporate Center III, Suite 300
7300 Metro Boulevard
Edina, MN 55439-2302
Re: City of Albertville v. Edina Development Corporation.
Dear Mr. Hegna:
As we discussed today, please fmd enclosed the following documents:
1. Affidavit of Michael C. Couri.
2. Plaintiffs Notice of Motion and Motion to Amend Complaint and Vacate
Scheduling Order.
3. Order.
4. Plaintiffs Memorandum in Support of Motion to Amend Complaint.
5. Affidavit of Adam Nafstad.
6. Amended Complaint.
The motion is scheduled for 9 a.m. on Tuesday, May 30th at Wright County Government
Center. I am faxing you all of the motion papers, but only the "new" pages of the
complaint, meaning only those that I have changed. Copies of all documents are being
sent by mail.
Please note that in addition to the storm water counts I added a count against
Edina requesting the Court to order Edina to obtain a permit to grade the large dirt
stockpile that is located on the property we have been commonly referring to as Albert
Villas ih Addition. In the past Rick has talked about preparing a plan and grading that
stockpile on site. The City would like to see that done as the stockpile is on the site in
violation of the City's zoning ordinance. I assume this can fairly easily be done, and will
have to be done in any event to develop or market the property.
., '( ,..~. ...
Mr. Kyle Hegna
May 16, 2006
Page 2 of2
Please review the motion papers. If you are willing to stipulate to the amendment
of the Complaint, I will draft up the stipulation and send it to you. If the variance is
granted, I expect that the City will dismiss the current litigation and file the new portions
of the Complaint in a separate litigation so that the record will be cleaner from the start.
Please call with any questions you may have. Thank you.
Sincerely,
nJJC~
Michael C. Couri
Couri, MacArthur & Ruppe, P.L.L.P.
Enclosure
Cc. Larry Kruse
AFFIDAVIT OF SERVICE BY FACSIMILE AND U.S. MAIL
State of Minnesota)
) ss.
County of Wright )
Michelle Thielen, being first duly sworn, deposes and says that on May 16, 2006, she served
a true and correct copy of the attached:
1. Affidavit of Michael C. Couri.
2. Plaintiff's Notice of Motion and Motion to Amend Complaint and Vacate
Scheduling Order.
3. Order.
4. Plaintiff's Memorandum in Support of Motion to Amend Complaint.
5. Affidavit of Adam Nafstad.
6. Amended Complaint
via facsimile to the following person:
Mr. Kyle Hegna
Fax No. 952-897-3534
and by depositing the same in the United States post office at the City of St. Michael,
Minnesota, enclosed in a sealed envelope, with postage thereon fully prepaid, addressed to
the following:
Mr. Kyle Hegna
Wilkerson & Hegna, P .L.L.P.
One Corporate Center III, Suite 300
7300 Metro Boulevard
Edina, MN 55439-2302
~WLG ~ 7LL-
Michelle Thielen
Subscribed and sworn to before
me this 16th day of May, 2006.
Kc,,-H0LcUl .~
Notary Public
KATHLEEN BOST
NOTARY PUBLIC - MINNESOTA
My Commission Expires Jan. 31,2010
STATE OF MINNESOTA
COUNTY OF WRIGHT
DISTRICT COURT
TENTH JUDICIAL DISTRICT
Other Civil- Breach of Contract
City of Albertville, Minnesota,
Court File No. C9-05-2481
Plaintiff
vs.
PLAINTIFF'S MEMORANDUM
IN SUPPORT OF MOTION
TO AMEND COMPLAINT
Edina Development Corporation,
Defendant.
FACTS
On July 19,2005, the City of Albertville ("City") served Edina Development
Corporation ("Edina") with a complaint alleging several violations of various developer's
agreements entered into between the City and Edina for the development of several
phases of the Albert Villas residentjal subdivisions ("Albert Villas Plats"). Edina served
an answer and a counterclaim upon the City, and the City subsequently served an answer
to Edina's counterclaim. In December, 2005, the City and Edina reached a tentative oral
settlement of the issues raised in this litigation. (Couri Affidavit, para. 3) On April I?,
2006, the City was notified by the City Engineer that the storm sewers and storm water
ponds in the Albert Villas Plats were not designed and constructed consistent with the
City's Subdivision Ordinance in that these structures did not contain storm water during a
100-year storm event without increasing the pre-development peak discharge rate of
storm water. (Nafstad Affidavit, paras. 4, 5 and 6) On May 8,2006, the City and Edina
signed a settlement agreement which conditionally settled all issues raised in the
1
Complaint, but which also preserved the right of the City to bring future actions against
Edina related to violations of the developer's agreements for the Albert Villas Plats,
including the storm water related claim which is contained in Plaintiff's Proposed
Amended Complaint. (Couri Affidavit, para. 5)
Plaintiffhas brought this motion seeking to amend the Complaint against Edina
related to storm water problems recently discovered in the Albert Villas Plats, seeking to
bring related claims against the engineers and surveyors who were responsible for
designing and reviewing the storm water systems, seeking to require Edina to obtain a
permit for grading work, and seeking to vacate the Scheduling Order until such time as
all proposed Defendants can be served and a new scheduling conference convened.
ARGUMENT
Rule 15.01 of the Minnesota Rules of Civil Procedure permits a party to amend a
pleading only by leave of Court or by written consent of the adverse party once a
responsive pleading has been filed. The rule goes on to state that "leave shall be freely
given when justice so requires." Minnesota Courts have stated that the District Court
should liberally grant a motion to amend pursuant to Rule 15.01 when justice requires
and doing so will not result in prejudice to the adverse party. Schroeder v. Jesco. Inc.,
209 N.W.2d 414,419 (Minn., 1973).
Justice requires that the City be allowed to amend the Complaint to include the
claims relating to the recently discovered storm water problems. Because the City did
not know of these problems when it originally filed the Complaint, it could not have
brought them at that time. Once the City did find out on April 17, 2006, it acted
2
promptly to bring this motion seeking to amend the Complaint. The claims are an
integral part of the current litigation in that they allege violations of the developer's
agreements already at issue, and will involve many of the same witnesses as would be
necessary to litigate the current claims.
Because the City and Edina have effectively ceased work on litigating this case as
of December, 2005, and because significant discovery remains to be completed if this
case ultimately does not settle, the litigation has not progressed to the point where the
Defendant would be prejudiced by the proposed amendment. In fact, the Stipulation and
Settlement Agreement signed by the parties expressly contemplates that the City would
bring future claims, including the storm water claims contained in the Amended
Complaint.
CONCLUSION
Because the City acted promptly to amend the Complaint upon learning the facts
upon which the amendment is based, and because the litigation has not progressed to the
point where the proposed amendment will prejudice the Defendant, the City's motion to
amend the Complaint and vacate the scheduling order should be granted.
Dated: May 16, 2006
U;j1( ~
.
Michael C. Couri
Atty. No. 214887
COURI, MACARTHUR & RUPPE, P.L.L.P.
PO Box 369
705 Central Avenue East
St. Michael, MN 55376
(763) 497-1930
3
ti-~
~
STATE OF MINNESOTA
DISTRICT COURT
COUNTY OF WRIGHT
TENTH JUDICIAL DISTRICT
Case Type: Other Civil
Court File No. C9-05-2481
City of Albertville, Minnesota,
Plaintiff,
vs.
AFFIDAVIT OF MICHAEL C. COURI
Edina Development Corporation,
Defendant.
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
MICHAEL C. COURI, being first duly sworn and under oath deposes and states,
under penalty of perjury, as follows:
1. This affiant is an attorney licensed to practice law In the State of
Minnesota.
2. This affiant represents the City of Albertville ("City") in the above-entitled
litigation and submits this affidavit in support of the City's motion for leave
to amend its Complaint and to vacate the scheduling order.
3. The City and Defendant Edina Development Corporation ("Edina") entered
into settlement discussions in December, 2005 in an effort to settle the
claims in this litigation. During these discussions, the City and Edina orally
reached a tentative settlement agreement tentatively resolving the issues
raised in this litigation.
1
4. Upon reaching the tentative settlement agreement in December, 2005, the
City and Edina agreed to suspend further discovery production pending the
execution of a written settlement agreement and ultimate settlement of the
issues raised in this litigation.
5. The Stipulation and Settlement Agreement attached as Exhibit A to this
Affidavit is a true and correct copy of the Stipulation and Settlement
Agreement that was executed in my presence by representatives of the City
of Albertville and Edina Development Corporation on May 8, 2006.
6. The Stipulation and Settlement Agreement is contingent upon the City must
processing and granting a variance for several lots owned by Edina. The
City expects to finish processing the variance request by June 30, 2006.
7. To date, discovery responses have consisted of answers to interrogatories
and requests for admissions. No document production has occurred to date
nor have any depositions been taken in this case.
Dated: May 16, 2006
Further Your Affiant Sayeth Not,
'JJJl {~
Michael C. Couri
2
~.
State of Minnesota )
) SS.
County of Wright )
The foregoing instrument was acknowledged before me this 16th day of May, 2006
by Michael C. Couri.
~Cl~ E~
Notary Public
.~~~~??'???C>;:~?~?"""
i KATHLEEN BOST
NOTARY PUBLIC - MINNESOTA
,." My Commission Expires Jan. 31, 2010
3