                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0737
                                   A16-1161

                                  Jerald Hammann,
                                      Appellant,

                                         vs.

                              Wells Fargo Bank, N. A.,
                                    Respondent,

                                         and

                              Wells Fargo Bank N. A.,
                                    Respondent,

                                         vs.

                                Jeffrey Robert Busch,
                                     Respondent,

                                 Pamela Jean Busch,
                                    Defendant,

                                  Jerald Hammann,
                                      Appellant.

                               Filed January 3, 2017
                                     Affirmed
                                    Kirk, Judge

                           Hennepin County District Court
                  File Nos. 27-CV-HC-16-719, 27-CV-HC-13-7239

Jerald Hammann, Minneapolis, Minnesota (pro se appellant)
Jared D. Kemper, Kristina Kaluza, Dykema Gossett PLLC, Minneapolis, Minnesota (for
respondent Wells Fargo Bank N. A.)

Jeffrey Robert Busch, Eden Prairie, Minnesota (respondent)

      Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and

Kirk, Judge.

                        UNPUBLISHED OPINION

KIRK, Judge

      In this consolidated appeal, appellant challenges the district court’s order dismissing

his claims of ouster, unlawful exclusion, and breach-of-landlord covenants against

respondent bank, and the court’s denial of his motions to intervene and for relief from

judgment in a closed eviction action. We affirm.

                                         FACTS

      Appellant Jerald Hammann entered a one-year residential lease to rent the property

at issue in this case from respondent Jeffrey Robert Busch and defendant Pamela Jean

Busch beginning January 1, 2010 through December 31, 2010. On June 22, 2010,

following the Busches’ default on their mortgage, respondent Wells Fargo Bank, N.A.

initiated a foreclosure by advertisement on the property. On October 4, 2011, the Hennepin

County Sheriff sold the property to Wells Fargo in a foreclosure sale. The Busches did not

redeem the property.

      On November 26, 2013, Wells Fargo mailed a “demand for possession of property”

letter addressed to the Busches, Hammann, “Occupant(s),” and any known or unknown

tenants. The letter stated that Wells Fargo had purchased the property, informed tenants



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that they were permitted to remain in the property for 90 days, and requested that tenants

entitled to additional rights forward specified information to Wells Fargo’s counsel.

Hammann maintains that he did not receive a copy of the demand for possession letter.

       On December 12, 2013, after receiving no response regarding the property’s

occupancy, Wells Fargo commenced an eviction action against the Busches, John Doe, and

Mary Roe (the eviction action). Wells Fargo mailed a copy of the summons and complaint

to the property, addressed to the Busches, Hammann, and “Occupant(s),” and later served

the defendants by leaving a copy of the summons and complaint with Mr. Busch at the

property. Hammann did not appear in the eviction action. The district court granted

summary judgment in favor of Wells Fargo and awarded it possession of the property. By

order opinion, this court affirmed the district court’s grant of summary judgment for Wells

Fargo. Wells Fargo Bank, N.A. v. Jeffrey Robert Busch, Appellant, Pamela Jean Busch, et

al., Defendants, No. A14-0645 (Minn. App. Feb. 2, 2015).

       On November 25, 2015, the district court issued a writ of recovery of premises for

the property, which stated, “Plaintiff(s) is/are entitled to recovery from Defendant(s) of

[the property],” and “[t]he Sheriff shall remove Defendant(s) from the property, using the

force of the County if necessary, and return the premises to Plaintiff(s) according to the

procedure set out in Minn. Stat. § 504B.365.” On December 10, 2015, Wells Fargo

recovered possession of the property.

       On February 5, 2016, Hammann filed an action against Wells Fargo, alleging

claims of ouster under Minn. Stat. § 504B.231(a) (2014), unlawful exclusion or removal

under Minn. Stat. § 504B.375 (2014), and breach-of-landlord covenants under Minn. Stat.


                                            3
§ 504B.161 (2014). Wells Fargo moved to dismiss, or in the alternative, for summary

judgment, arguing that Hammann failed to state a claim upon which relief could be granted

and that his claims are an impermissible collateral attack on the district court’s prior

issuance of a writ of recovery of the property. The district court granted Wells Fargo’s

motion and dismissed Hammann’s claims with prejudice. Hammann moved to amend his

complaint after Wells Fargo filed its motion to dismiss, but the district court determined

his motion to amend was moot due to its dismissal with prejudice.

       Next, in March and May, 2016, Hammann filed the following in the eviction action:

(1) a notice to intervene; (2) a motion for relief from judgment; and (3) a motion to

intervene as of right under Minn. R. Civ. P. 24.01. The district court denied Hammann’s

motion to intervene because he had failed to properly serve all of the parties as required

under rule 24.01 and because Hammann’s motion was untimely. The district court later

denied Hammann’s motion to review its prior decision and did not address the merits of

Hammann’s motion for relief from judgment.

       This consolidated appeal follows.

                                     DECISION

I.     The district court did not err in dismissing Hammann’s claims against Wells
       Fargo.

       When reviewing a case dismissed under Minn. R. Civ. P. 12.02(e) for failure to state

a claim upon which relief can be granted, the question before this court is whether the

complaint sets forth a legally sufficient claim for relief. Bodah v. Lakeville Motor Express,

Inc., 663 N.W.2d 550, 553 (Minn. 2003). Our standard of review is de novo. Id. “It is



                                             4
immaterial to our consideration here whether or not the plaintiff can prove the facts

alleged.” Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). “But a legal

conclusion in the complaint is not binding on us,” and “[a] plaintiff must provide more than

labels and conclusions.” Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010).

       Acting pro se, Hammann argues that the district court erred in dismissing his claims

of ouster, unlawful exclusion, and breach-of-landlord covenants under rule 12.02(e) as an

improper collateral attack on the eviction action judgment. Specifically, Hammann bases

his ouster and unlawful exclusion claims on Wells Fargo’s use of “John Doe,” and its

failure to name Hammann, in the eviction action. Hammann argues that such conduct

indicates that Wells Fargo acted unlawfully and in bad faith, thus rendering him outside

the scope of the writ of recovery.

       Hammann’s ouster claim requires him to establish that Wells Fargo acted

“unlawfully and in bad faith” in removing or excluding Hammann from the property.

Minn. Stat. § 504B.231(a). His unlawful-exclusion claim requires him to establish that

Wells Fargo acted without a writ of recovery of the property and order to vacate in favor

of Wells Fargo and against Hammann. Minn. Stat. § 504B.375, subd. 1(b)(2). Finally, his

breach-of-landlord-covenants claim requires him to establish that a lease or license

agreement existed between Wells Fargo and Hammann. Minn. Stat. § 504B.161.

       First, the record includes numerous examples where Wells Fargo sought to identify

and include all occupants, known and unknown, in the eviction action. Despite these

efforts, Hammann did not appear in the eviction action and waited until February 2016 to

challenge the district court’s order and writ of recovery of premises. As such, Hammann


                                             5
is unable to allege facts sufficient to establish that Wells Fargo acted unlawfully and in bad

faith, and his ouster claim must fail. Second, by entering judgment and issuing a writ of

recovery for Wells Fargo, the district court determined that Wells Fargo was entitled to

possess the property over the Busches and any unknown occupants. Therefore, Hammann

is unable to establish that Wells Fargo acted without the proper writ of recovery and order

to vacate, and his unlawful-exclusion claim fails. Third, Hammann concedes that he does

not have a lease agreement with Wells Fargo; that he was not aware that Wells Fargo owned

the property; and that he did not make any payments to Wells Fargo. Based on these

concessions, Hammann is unable to allege facts sufficient to establish that a lease or license

agreement existed, and therefore his breach-of-landlord-covenants claim must fail.

Accordingly, the district court did not err in dismissing Hammann’s claims against Wells

Fargo under rule 12.02(e).1 Because dismissal was appropriate, we need not consider

whether Hammann’s claims were an improper collateral attack upon the eviction action

judgment.

II.    The district court did not err in denying Hammann’s motion to intervene in
       the eviction action or in denying review.

       We review the appropriateness of an order denying intervention as of right de novo.

Norman v. Refsland, 383 N.W.2d 673, 676 (Minn. 1986). As a nonparty to the eviction


1
  Because the record indicates that Hammann is unable to allege legally sufficient claims,
the district court’s denial of his motion to amend was not a clear abuse of discretion. Johns
v. Harborage I, Ltd., 664 N.W.2d 291, 295 (Minn. 2003). In addition, the district court
properly denied Hammann’s request to enlarge the record because “a judge’s review of a
decision recommended by the referee shall be based upon the record established before the
referee,” and there is no indication that enlarging the record was necessary to prevent
manifest injustice. Minn. R. Gen. Pract. 1.02, 611(a).

                                              6
action, Hammann must demonstrate the following: (1) a timely application for

intervention; (2) an interest relating to the property or transaction which is the subject of

the action; (3) circumstances demonstrating that the disposition of the action may as a

practical matter impair or impede the party’s ability to protect that interest; and (4) a

showing that the party is not adequately represented by the existing parties. Minn. R. Civ.

P. 24.01; see Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn.

1986). Assessing the timeliness of a motion to intervene must be determined on a case-by-

case basis. Engelrup v. Potter, 302 Minn. 157, 165, 224 N.W.2d 484, 487 (1974). Also,

Minn. R. Civ. P. 24.03 requires a person desiring to intervene to serve all parties to the

action.

          Here, in assessing Hammann’s motion to intervene, the district court noted that

“evictions are extremely limited, expedited actions that solely determine present right of

possession to real property,” and that “[the eviction action] was commenced in 2013, and

resulted in judgment for [Wells Fargo] in February of 2014 – more than two years ago.”

In addition, Hammann concedes that he did not properly serve his notice and motion on

the defendants in the eviction action. Based on this same reasoning, we conclude that

Hammann’s motion to intervene was properly denied due to his ineffective service and his

motion’s untimeliness.

          Hammann further argues that the district court wrongfully denied review of the

order denying his motion to intervene.       The district court issued an order denying

Hammann’s motion to intervene on June 29, 2016, and Hammann filed a notice of review

on July 13, 2016. The record indicates that Hammann received service by electronic


                                             7
means. Accordingly, the district court properly denied review because Hammann’s notice

of review was not filed within the deadline established under Minn. R. Gen. Pract. 611(a).

III.   Hammann’s motion for relief from judgment under Minn. R. Civ. P. 60.02 is
       improper.

       This court has noted that the summary nature of an eviction proceeding “is

comparable to the summary nature of the former unlawful-detainer proceeding.” Fraser v.

Fraser, 642 N.W.2d 34, 40 (Minn. App. 2002). Such proceedings are intended to ascertain

which party has the right to possess the land in question. Dahlberg v. Young, 231 Minn.

60, 63-64, 42 N.W.2d 570, 573-74 (1950). “The supreme court has consistently held that

post-trial orders in unlawful detainer proceedings are non-appealable.” Tonkaway Ltd.

P’ship v. McLain, 433 N.W.2d 443, 443 (Minn. App. 1988). Accordingly, we do not

review Hammann’s challenge to the district court’s denial of his rule 60.02 motion.

       Affirmed.




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