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City of Barnum v. Sabri

March 04, 2003

CITY OF BARNUM, RESPONDENT,
v.
AZZMI O. SABRI, APPELLANT.



Carlton County District Court File No. T8973410

Considered and decided by Wright, Presiding Judge, Stoneburner, Judge, and Anderson, Judge.

SYLLABUS BY THE COURT

The district court may grant a motion for relief from judgment under Minn. R. Civ. P. 60.02(e) where the change in circumstances results from the voluntary actions of the movant, if the prospective application of the judgment no longer is equitable in light of all the facts.

The opinion of the court was delivered by: Wright, Judge

Reversed and remanded

OPINION

Appellant challenges the denial of his motion for relief from judgment, arguing that the district court erred by ruling that Minn. R. Civ. P. 60.02(e), which allows relief from a judgment if it is no longer equitable for the judgment to have prospective application, does not apply where a change in circumstances occurs due to voluntary actions by the moving party. Appellant also argues that the district court abused its discretion by denying the motion without (1) considering all of the evidence before concluding that a change in circumstances has not occurred and (2) addressing appellant's alternative request for relief under Minn. R. Civ. P. 60.02(f). We reverse and remand.

FACTS

Appellant Azzmi Sabri owns a dome-shaped building in Barnum, Minnesota. Beginning in 1996, respondent City of Barnum (the city) sent notices to Sabri regarding the deteriorating condition of the building. Specifically, Sabri was issued citations for violating Barnum City Ordinances 81 and 82, because his building had been abandoned and neglected. With its broken windows, unsafe deck, and general lack of security, the building presented a public safety risk to children from the area. Sabri did not respond, and the property's condition continued to deteriorate.

On March 4, 1998, the city issued an order, pursuant to Minn. Stat. § 463.17 (1996), directing Sabri to repair the building within 60 days. In April 1998, Sabri denied the allegations and claimed that the order failed to state any cause of action. Sabri also did not make any repairs.

On July 7, 2000, the city moved the district court for summary enforcement of the March 4, 1998, order requiring repairs. A hearing was set for August 17, 2000, but the record lacks evidence that Sabri and his attorney were notified of the hearing. Neither Sabri nor his attorney appeared at the August 17, 2000, hearing. Following the hearing, the district court granted the city's motion and entered judgment against Sabri on August 22, 2000. Finding that Sabri failed to correct the hazardous conditions on his property in response to the city's order and that the building continued to be a hazard to public safety, the district court authorized the city to raze the building. The record shows that copies of the order were sent to Sabri and his attorney. Sabri did not appeal this judgment.

At its November 13, 2000, meeting, the city council voted to move forward with plans for demolition and to provide Sabri a list of requirements, which, if met, would halt plans to raze the building. Sabri was required to obtain the services of a civil engineer, complete the necessary repairs within 60 days, provide the city with the list of repairs and estimated costs, and post a performance bond. The list was sent to Sabri's counsel on November 22, 2000. The city contends that Sabri did not comply with these requirements.

On September 22, 2001, Sabri learned that the demolition of his building was imminent. On September 25, 2001, Sabri moved to vacate all orders and judgments on the ground that he was never properly served with a complaint or notice of the proceedings in this matter. Sabri also sought a temporary restraining order and injunction, challenging the city's right to destroy the building and maintaining that repairs to the property had been made.*fn1 The district court rejected Sabri's claim of insufficient notice, because he was represented by counsel when the court heard the city's summary enforcement motion on August 17, 2000. The district court denied Sabri's motion for a temporary injunction as moot, because the city agreed to postpone the demolition until Sabri could be heard at the city council meeting on October 8, 2001.

At the meeting, Sabri presented his arguments against razing the building. Dennis Johnson, the owner of the company that built the dome-shaped building, addressed the design and explained that Sabri's property was structurally sound and only needed nonstructural repairs. Sabri, a civil engineer and owner of a construction company, also testified that the building was in sound structural condition. Sabri's brother testified about the numerous repairs that he had made to the building, ...


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