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1 SIA IE OF MINNESOTA COUNTY OF RAMSEY ~ ;cwrn~1 LQ1 ' ',, illj DISIRJCI COURT SECOND JUDICIAL DISTRICT v and, Petitione1 s, One MN License Plate No.: VIN: (City of Maplewood), Respondent Cowt File No.: ORDER GRANTING SUMMARY JUDGMENT The above-entitled matte1 came on frn heaiing before the Unde1signed on Septembe1 22, 2009, pursuant to Petitioners' motion fm summaiy judgment Chuck Rainsey, Attorney at Law, appeaied on behalf of Petitioners. Alan Kantrnd, Attorney at Law, appeared on behalf of Respondent Based upon the argwnents of counsel and all of the 1elevant files, reco1ds and proceedings he1ein, the Cowt hereby makes the following: ORDER 1 Petitioners' motion for swnmaiy judgment is GRANTED in all 1espects 2 Pursuant to Minn.Stat 169A63 subd 9(g); the vehicle must be returned immediately upon the owne1's compliance with the redemption 1equirements of section 169A42 1

2 3 Pursuant to Minn. Stat. 169A.63 subd 9(h) filing foes shall be returned to Petitioner 4 The attached memorandum is inco1porated herein. LET JUDGMENT BE ENTERED ACCORDlNGL Y Dated: filomasmott Judge of District Comt MEMORANDUM Petitione1, [hereinafte1 offender or d1ive1] was auested on Novembe1 30, 2008 in Ramsey County and chatged with second-degree d1iving unde1 the influence This anest 1esulted in a forfeiture of the vehicle she was d1iving at the time of he1 arrest, one, which is the Respondent in this matte1 The Mustang, at the time of the auest, was registe1ed solely to Petitioner, [hereinafter Petitione1], who is the mothe1 of the driver Pursuant to Minn. Stat l 69A63 subd 1 (h), there is a rebuttable presumption that she is the owner Petitioner filed a motion fo1 summaty judgment, supporting memm andum and affidavit. Respondent did not file a written opposition to Petitioner's motion fo1 summary judgment, but did present oral atguments at the heating, Summaty judgment is approp1iate only if "the pleadings, depositions, answers to interrngatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any mate1ial fact and that either patty is entitled to a judgment as a matter of law" Minn R Civ P The evidence presented must be viewed in a light most favorable to the non-moving patty." Vieths v. Thmpe Finance Co., 232 N.W2d 776, 778 (Minn 1975) 2

3 When the moving pmty makes out a prima facie case, the bwden shifts to the opposing pmty to prove a genuine issue of material fact Thiele v. Stich, 425 N.W2d 580, 583 (Minn 1988) A material fact is "one of such a nature as will affect the result or outcome of the case depending on its resolution.. " Zappa v. Fahey, 245 N.W2d 258, 259 (Minn. 1976}. A pmty must put forth "affirmative evidence" to defeat a motion for summary judgment Cmlisle v. CitY..Qf Minneapolis, 437 N.W.2d 712, 715 (Minn. Ct App 1989). A party cannot "rest upon the mere averments 01 denials of the adverse pmty's pleading but must present specific facts showing that there is a genuine issue for trial" Minn.. R Civ. P 56 05; Thiele, 425 N.W2d at 583. The evidence cannot be merely colorable, but must be significantly probative. Anderson v. Liberty Lobby,_ln,_, 4 77 U S. 242, (1986}. The moving party is entitled to summary judgment "when there are no facts in the record giving rise to a genuine issue for trial as to the existence of an essential element of the non-moving party's case" Nicollet Restoration, Inc. v. City of St. Paul, 553 N.W2d 845, 847 (Minn ). Petitioner's first argument is that she is an "innocent owner" Minn Stat 169A63 subd 7(a), commonly known as the "innocent owner" affirmative defense states: A motor vehicle is not subject to forfeiture under this section if its owner can demonstrnte by clear and convincing evidence that the owne1 did not have actual or constmctive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent use of the vehicle by the offender. If the offender is a family or household member of the owner and has three or more prior impaired driving convictions, the owner is presumed to know of any vehicle use by the offender that is contrary to law. There was no evidence presented that the offender has three or more prior impaired driving convictions A MNCIS search indicates the offender has past alcohol related incidents, but the record is clear there are not three prior impaired driving convictions. To demonstrate Petitioner is entitled to the innocent owner defense, she must present 3

4 clear and convincing evidence that she did not have actual or constructive knowledge that the vehicle would be used or opernted in any manner contrary to law. Petitioner's motion included an affidavit that she was "completely unaware" that the driver would be driving the Mustang in a matter that violated Minnesota law. This factual assertion is not disputed in the pleadings, depositions, answers to interrogatories, admissions on file, or affidavits Respondent made no argument that Petitioner is not the "owner" of the vehicle Respondent argued at the hearing that this motion is premature and that Respondent is entitled to weigh or attack the credibility of Petitioner As to the first contention, this motion was not premature because pursuant to this Court's schedule order, all dispositive motions were to be heard by September 22, As to the second contention, when a summary judgment motion is made, the opposing party cannot rest upon the mere averments oi denials and must present specific facts showing there is a genuine issue for trial Thiele, 425 N W.2d at 583 (emphasis added) Minn RCiv P and Minn. R Civ. P requirements must be met for a proper summary judgment opposition. Parsons v. Parsons, 413 N.W.2d 185, 187 (Minn. Ct App 1987). Respondent cannot rest on the fact that at trial credibility may be an issue and that Respondent prefers to attack credibility through a trial Respondent did not present any case law supporting his argument that because Petitioner has a clear and convincing standard to prove she is an innocent owner, her unopposed affidavit requires a credibility determination, and this can only be done through trial. See Aubin v. One 1988 Chevrolet Corvette, 2009 WL , *2 (Minn Ct. App. 2009)(Court cannot disregard an affidavit. There is a genuine issue of material fact when appellant's affidavit conflicts with facts alleged by the state). Respondent presented no case law 4

5 that an affidavit setting fo1th basis fcnth innocent owner defense, without other evidence, is insufficient to meet the clear and convincing standmd when there is no evidence to rebut or dispute the affidavit. The record contains no conflicting evidence. Respondent's mguments do not create a genuine issue of material fact As Petitioner established that she is an innocent owner and there is no genuine issue of mate1ial fact as to the innocent owner defense, Petitioner's motion for summa1y judgment is granted in all respects. JIM 5