2007-05-25 Memo of Law in Support of Intervention05/25/2007 13:11 FELHRBER LAW a 9529461501
N0.280 PO4
STATE OF MINNESOTA
COUNTY OF WRIGHT
T/C Homes, Inc.,
vs.
Gold Key Development, Inc.,
DISTRICT COURT
TENTH JUDICIAL DISTRICT
Case Type: Declaratory Judgment/Breach of Contract
Court File No. CV-06-44997
Defendant and Third Party Plaintiff,
vs. MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO INTERVENE
Hedlund Engineering, BY MAJESTIC BUILDERS, INC
AND LEGACY HOMES, INC.
Third Party Defendant,
and
City of Albertville,
Defendant and Third Party Plaintiff.
vs.
SHORT-ELLIOTT-H.ENDRICKSON, INCORPORATED
Third Party Defendant and Cross Defendant.
Gold Key Development, Inc.
Plaintiff,
v.
City of Albertville,
Defendant and Third Party Plaintiff,
v.
SHORT-ELLIOTT-HENDRICKSON, INCORPORATED
Third Party Defendant.
Court File No. CV-06-2998
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Legacy Homes Incorporated ("Legacy") and Majestic Builders, Inc. ("Majestic") are
builders who own real estate and/or homes in the Prairie Run development. They are similarly
situated to Plaintiff T/C Homes, Inc. ("T/C Homes") in the above -captioned action. Majestic
and Legacy seek to intervene in this lawsuit and. agree to be bound by the pending motions for
summary judgment. They neither object to discovery, nor ask that the trial date be moved.
The interests of justice, efficiency and common sense support intervention. Indeed, the only
reason this Motion is necessary is unresolved disagreements between the other parties to the
litigation regarding the scope of discovery which are unrelated to the intervention of Legacy
and Majestic.'
FACTS
The facts surrounding the Prairie Run development have been presented to this Court in
exhaustive detail in pending motions for summary judgment. The Prairie Run development in
the City of Albertville is subject to a moratorium imposed by the City relating to the alleged
errors in the height of the plat. There are substantial claims and cross claims by and between
the parties relating to engineering services provided by Short-Elliott-Hendrikson ("SEH") and
Hedlund Engineering ("Hedlund"), as well as claims between the developer Gold Key
Development ("Gold Key") and the City. Significantly, no claims have been asserted against
the builder T/C Homes. Indeed, T/C Homes built as required under the plat, and has suffered
substantial damage as a result of building and occupancy permit moratoriums.
' The City of Albertville (the "City") noticed a Motion to Extend the Discovery Cutoff
prior to the scheduling of this Motion.
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Similarly, Majestic and Legacy are builders who purchased lots from Gold Key as the
developer. Like T/C Homes, Majestic and Legacy are subject to the moratoriums imposed by
the City and have suffered substantial damages. As a practical matter, their factual situation is
extremely similar to T/C Homes. While their damages vary from T/C Homes given their
relative exposure on the number of lots and homes held during the moratorium, they share T/C
Homes' blamelessness in this suit. Majestic and Legacy have decided to intervene in the
lawsuit in light of the substantial period of time that has passed and to avoid statute of
limitations issues. If they do not intervene, they will be required to immediately commence a
separate action, resulting in substantial duplication and waste oFjudicial resources.
Prior to the filing of this Motion, Legacy and Majestic through the undersigned,
requested approval for intervention from all of die parties to the litigation, and provided them
with a proposed intervention complaint. See Affidavit of Stephen E. Yoch ("Yoch Aff.") at
Ex. A (proposed intervention complaint) and Ex. B (e-mail exchange where City refused to
stipulate to amendment). The City refused to stipulate to the intervention. A disagreement
ensued between the other parties to the litigation regarding the scope of additional discovery.
Majestic and Legacy made clear that they were willing to abide by any mutual agreement
regarding the scope of additional discovery. ld. Given die inability of the parties to reach
consensus, this Motion was served and filed.
ARGUMENT
The intervention of Majestic and Legacy is appropriate both under the Minnesota Rules
of Civil Procedure and settled case law. The proposed "permissive intervention" is governed
by Minn. R. Civ. P. 24,02, Granting the motion to intervene serves the goal of the Rule:
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Intervention serves two important purposes. First, it prevents
those persons already parties to a lawsuit from using judicial
process to abridge the rights of absentees. Second, it promotes
the resolution of entire controversies in a single proceeding,
reducing the strain upon an overburdened judicial system. In
light of these benefits, modern courts have greatly expanded the
scope of intervention since the days when a plaintiff was regarded
as 'master of his action' and interference from outsiders who
looked on with disfavor,
D. McFarland and W. Keppel, 2 Minnesota Civil Practice § 1441 (3d) (1999). Majestic and
Legacy agree to be subject to the results of the litigation "favorable or unfavorable, and
generally [have] all the rights and duties of any other party." Id.; see also Yoch Aff. at Ex. B.
The main issue in determining whether permissive intervention is appropriate is looking to
whether the questions of fact or law are common to the [Hain action. Minnesota Practice at §
1443. The Court should also consider whether intervention will result in "prejudice to other
patties, trial convenience, and the availability of the applicant to other means to protect her
interests effectively." Id.
In Snyder's Drug Stores v. Minnesota State Board of pharmacy, the Minnesota
Supreme Court held that a trial court erred in refusing to permit the intervention of a similarly
situated party. 221 N.W.2d 1.62 (Minn. 1974). In examining whether permissive intervention
was appropriate, the court noted that the challenges made by the intervening party were
practically identical to those of existing parties to die litigation and that "the best interests of
judicial economy" supported permitting intervention. Id. at p. 166.
In this case, as discussed above, the facts giving rise to the claims by Majestic and
Legacy, are virtually identical to those asserted by T/C Homes. Indeed, the only difference
between Legacy, Majestic and T/C Homes are the amount of damages they claim. The
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attached redline comparison of the pleadings asserted by TIC Homes and those proposed by
Majestic and Legacy, show the vast overlap between the Legacy, Majestic and TIC Homes
claims. Yoch Aff. at Ex. A, The main differences in the redline version of the proposed
intervention complaint result from the addition of Legacy and Majestic, and formatting changes
caused by Legacy's and Majesties direct complaint, rather than cross claims as those asserted
by TIC Homes. There are certainly no "new claims" which would come as a surprise to any
of the Defendants to the litigation. Every cause of action asserted by Majestic and Legacy has
been previously asserted by TIC Homes. Id.
Likewise, Majestic and Legacy have acknowledged they are subject to die same factual
and legal conclusions currently pending before this Court on summary judgment. As indicated
in the attached e-mail exchange and proposed stipulation, the City was unwilling to stipulate to
this amendment. Id. at Ex. B. However, Legacy and Majestic "acknowledge that they stand
in a similar legal position as TIC Homes, Inc. and the pending motions for summary judgment
and agree to be bound by the decision of the Court as to them in the above -captioned matter."
Id. at Q S. Thus, the proposed stipulation and proposed Order acknowledge the overlapping
legal and factual nature of the existing Plaintiff (TIC Homes) as well as the proposed
intervenors (Majestic and Legacy).
Finally, the other parties cannot claim prejudice as a result of the intervention. Legacy
and Majestic have specifically indicated that they "will not need to take additional oral
depositions, but will rely upon the depositions already taken, subject to receiving complete
answers to additional written discovery." Id. at Ex. B and proposed Order. By the same
token, Legacy and Majestic do not object to depositions taken of its principals or additional
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discovery as to their damages claims. Id. The interchange between other counsel leading up to
this Motion, appears to relate to the City's desire to extend discovery regardless of Majestic's
and Legacy's intervention. Majestic and Legacy do not object to the proposed discovery
extension by the City, but acknowledge that the arguments against extending discovery to
matters unrelated to Majestic and Legacy are more persuasive.
Judicial convenience is also served by permitting this intervention. Majestic and
Legacy do not propose changing the trial date or in any way delaying resolution of this matter
In contrast, if the intervention is denied, Majestic and Legacy will be forced to commence an
independent action resulting in exactly the burden the courts seeks to avoid.
Accordingly, Legacy and Majestic respectfully request the Court grant their motion to
intervene
Dated: May 25, 2007 FELHABCR, VMJ SON, FENLON,& VOGT, P.A.
By:
rMN
E. oc �f2]
444 , ui 2100
St. P51 -213�
651-222-6321
ATTORNEYS FOR MAJESTIC BUILDERS INC.
AND LEGACY HOMES INCORPORATED
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