2007-05-17 UpdateC1 IVERSON REUVERS
ATTORNEYS AT LAW
JASON J. KUBOUSHEK
DIRECT 952.548.7206
JKUBOUSHEK@I VERSONLAW.COM
JON K. IVERSON
May 17, 2007 ; .;:..,,..._::N< :;•.
PAUL D. REUVERS
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JEFF M. ZALASKY
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JASON J. KUBOUSHEK
PAMELA WHITMORE
Mark Rossow, Asst. Program Claims Manager ^y�.,
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JASON M. HIVELEY
LMCIT .•
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145 University Avenue West
SUSAN M. TINDAL
JEFFREY A. EGGE
St. Paul, MN 55103
AMBER S.LEE
Re: Trust Member: City of Albertville
Claimants: Gold Key Development, Inc. /TC Homes
Claim Nos. 11056480/11057039
Our File Nos. 100.526/100.535
Dear Mr. Rossow:
On May 15th, I argued our motion for summary judgment and opposed Gold
Key's motion for summary judgment. The hearing was originally scheduled to
occur at 1:30 with Judge Larkin; however, it was moved to 2:30 with Judge
Halsey. The day prior to the hearing, Judge Halsey requested all parties submit a
one -page summary of their arguments. This request was precipitated by the large
volume of documents filed with the Court.
I began the hearing by arguing Gold Key is in default of the Development
Agreement and there is specific evidence supporting the City's determination.
Moreover, Gold Key is not entitled to any type of estoppel order or vested rights
decision. Finally I argued T/C Homes' negligence claims were barred by the
public duty doctrine and by immunity. S.E.H. then argued and focused upon the
claims by Gold Key and S.E.H. Their defenses included the public duty doctrine
as well as the lack of a third party beneficiary contract.
Attorney Matt was the first to argue on behalf of the developers' side. She argued
Gold Key is not in default of the agreement because Mr. Mundstock's Affidavit
said the plat is fully compliant with all City ordinances. She also alleged
Paragraph 13(f) of the Development Agreement, under which the developer
agrees the plat complies with all city, county, state and federal regulations, is not
an ongoing agreement but rather it is just at the time the plat is approved.
Hedlund's attorney followed Ms. Matt and focused exclusively upon the alleged
violations. Their theory is because we did not submit an expert affidavit which
specifically addressed each of the points of Mr. Mundstock's Affidavit they are
entitled to summary judgment. We do not believe this is the case because there is
ample testimony in the discovery responses and the depositions to show Gold Key
is in default of the Development Agreement.
IVERSON REUVERS, LLC 1 9321 ENSIGN AVENUE SOUTH I BLOOMINGTON, MN 55438 1952.548.7200 1 FAX: 952.548.7210
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May 17, 2007
Page 2
Finally, T/C Homes' attorney argued both S.E.H. and the City made a mistake
and therefore should be held liable for their actions. His argument was the
shortest, but the hearing still went for over two hours. At the end, Judge Halsey
indicated he did not want any oral rebuttal arguments but would accept a one -
page summary.
Given the amount of information presented to the Judge and the differing
evidence regarding the default, we believe Judge Halsey is going to find a fact
dispute regarding the breach of the Development Agreement. It will not surprise
us if it takes Judge Halsey the full 90 days to make a determination. We will
provide you the decision as soon as we receive it.
If you have any questions, please feel free to contact Paul or me.
Best regards,
IVERSON REUVERS
Jason J. Kuboushek
JJK:bh
cc: Bridget Miller, City Clerk
Mike Couri, City Attorney
Larry Kruse, City Administrator