State of Minnesota, Appellant, vs. Gregory Hall, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1140

 

 

State of Minnesota,

Appellant,

 

vs.

 

Gregory Hall,

Respondent.

 

 

Filed December 30, 2003

Affirmed

Robert H. Schumacher, Judge

 

Beltrami County District Court

File No. KX03281

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Timothy R. Faver, Beltrami County Attorney, Randall R. Burg, Assistant County Attorney, 40 Judicial Courts Annex, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for appellant)

 

Russell R. Cherne, Thomas W. Lies, Pennington & Lies, P.A., 1111 First Street North, Post Office Box 1756, St. Cloud, MN 56302 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Schumacher, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

This appeal is from pretrial orders dismissing complaints charging respondent Gregory Hall with three counts of perjury under Minn. Stat. § 609.48, subds. 1(2), 4(2) (1998), and one count of temporary theft under Minn. Stat. § 609.52, subds. 2(5)(i), 3(2) (1998), and from a pretrial order denying the motion of appellant State of Minnesota to add one count of felony false declaration of a claim under Minn. Stat. § 471.391 (1998).  The state argues the trial court erred in its determination that the charges lacked probable cause.  We affirm.

FACTS

On December 21, 1999, Hall, as CEO of Hall & Associates General Contractors, Inc., entered into a contract with the City of Bemidji to renovate the Great Northern Depot.  As called for by the contract, Hall submitted periodic certificates to the city for payment due on completion of work.  Certificates for payment were signed and notarized on January 31, February 25, March 18, April 10, April 24, June 1, and July 31, 2000.  The certificate read, in pertinent part:

The undersigned Contractor certifies that to the best of the Contractors knowledge, information and belief the work covered by this application for payment has been completed in accordance with the contract documents, that all amounts have been paid by the contractor for work for which previous certificates for payment were issued and payments received from the owner, and that current payment shown herein is now due.

 

The state alleges that partial payments paid by the city to Hall were not used to pay subcontractors.  Thus, contrary to Hall's declaration on each certificate submitted after January 31, all amounts had not been paid by Hall to subcontractors for work for which previous certificates were issued and for which payment had been received.

As of June 1, 2000, the city had paid Hall $802,113.  The city did not pay the amount certified on July 31, 2000 of $262,783.  The state alleges that of the $802,113 paid, Hall failed to distribute $178,328 to subcontractors.  This resulted in material and mechanics' liens against the depot property and project.  The city directly paid subcontractors to secure lien waivers.

D E C I S I O N

1.         The district court granted Hall's motion to dismiss the three charges of perjury for lack of probable cause.  The state may appeal a dismissal for lack of probable cause if the dismissal is based on a legal determination, such as the interpretation of a statute.  State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991).  Here, the relevant facts are undisputed and the essential issue is the application of statutory criteria.  As with other legal determinations, this is reviewed de novo.  State v. Linville, 598 N.W.2d 1, 2 (Minn. App. 1999) (reviewing de novo statutory interpretation underlying dismissal for lack of probable cause).

Minn. Stat. § 609.48, subd. 1(2) (1998) provides that whoever makes a false material statement, not believing it to be true, "[i]n any writing which is required or authorized by law to be under oath or affirmation" is guilty of perjury.  Accordingly, the oath must be one administered pursuant to or as required or authorized by law.  State v. Hedstrom, 426 N.W.2d 908, 910 (Minn. App. 1988) (citing State v. Larson, 171 Minn. 246, 249, 213 N.W.2d 900, 901 (1927)).  A "merely gratuitous oath cannot be said to be lawfully administered, within the meaning of the statute defining perjury."  Id. (quotation omitted).

In this case, the state claims the notarized declarations signed by Hall constitute oaths administered pursuant to law under Minn. Stat. § 471.38 (1998), Bemidji City Code § 2.07, subds. 1, 3 (1983), Minn. Stat. § 15.72 (1998), and Minn. Stat. § 471.425, subd. 4a (1998).  We therefore interpret each claimed source of law to determine if any authorize or require an oath or affirmation.

The interpretation of a statute presents a legal issue, which we review de novo.  Hibbing Educ. Ass'n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).  When the words of a law are clear and free from ambiguity this court applies the statute's plain meaning.  Minn. Stat. § 645.16 (1998); see also Homart Dev. Co. v. County of Hennepin, 538 N.W.2d 907, 911 (Minn. 1995) (stating that if a statute is free from ambiguity, courts look only at a statute's plain meaning).  When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other things, the former law, if any, and other laws upon the same or a similar subject.  Minn. Stat. § 645.16.

Section 471.38, subdivision 1, requires a contractor, when making a claim for payment to a municipal body, to sign a declaration "to the effect that such account, claim, or demand is just and correct and that no part of it has been paid."  The declaration is sufficient if in the following form: "I declare under the penalties of law that this account, claim or demand is just and correct and that no part of it has been paid."  Minn. Stat. § 471.391 (1998).  Any person "who willfully and falsely" makes the declaration provided for in sections 471.38 and 471.391 is guilty of a felony under Minn. Stat. § 471.392 (1998).

The declaration called for by sections 471.38 and 471.391 does not constitute an oath  or affirmation administered pursuant to law.  These sections require a "declaration" be made under "penalties of law," but that phrase refers to the penalty set forth in section 471.392.  To hold that sections 471.38 and 471.391 authorize an oath subject to the penalties of perjury would inaccurately extend the statute beyond its plain meaning.  See, e.g., Hedstrom, 426 N.W.2d at 910-911 (holding the oath required under Minn. Stat. § 507.29 relates only to the recording and admissibility of the documents in a private action to determine a party's interest in the property and will not be interpreted to uphold a conviction of perjury).  Moreover, a 1951 amendment rewrote section 471.391, replacing "under the penalties of perjury" with "under the penalties of law."  1951 Minn. Laws ch. 350, § 2.  This indicates the legislature no longer intended the required declaration to give rise to a charge of perjury.  See N. States Power Co. v. Comm'r of Revenue, 571 N.W.2d 573, 576 (stating courts generally presume the legislature intends amendments to change the laws).  Finally, other statutes, which apply to similar circumstances, require a declaration using the language "I declare under the penalties of perjury."  See, e.g., Minn. Stat. § 412.271, subd. 2 (1998) (deals with claims for payment made to a statutory city and requires a declaration made "under the penalties of perjury.").  We will not interpret sections 471.38 and 471.391 to mean the same as section 412.271, subdivision 2, when these sections do not use the same language.

The interpretation of ordinances is also a question of law reviewable de novo by this court.  Semler Const., Inc. v. City of Hanover, 667 N.W.2d 457, 461 (Minn. App. 2003), review denied (Minn. Oct. 29, 2003).  Bemidji's city code provides:

Subd. 1.  Generally.  Except as to an annual salary, fees of jurors or witnesses fixed by law, or wages or salaries of employees which have been fixed on an hourly, daily, weekly or monthly basis by the Council and which by law are authorized to be paid on a payroll basis, any account, claim or demand against the City which can be itemized in the ordinary course of business, the Council shall not audit or allow the claim until the person claiming payment, or his agent, reduces it to writing, in items, and signs a declaration of the effect that such account, claim or demand is just and correct and that no part of it has been paid.

 

. . . .

 

Subd. 3.  Form of Declaration.  The declaration provided for in Subdivision 1 hereof is sufficient in the following form: "I declare under the penalties of law that this account, claim or demand is just and correct and that no part of it has been paid.  Signature of Claimant".

 

Bemidji City Code § 2.07 (emphasis added).  Like Minn. Stat. § 471.38, the city code requires a declaration when submitting a claim for payment to the city and defines a sufficient declaration using the same language as Minn. Stat. § 471.391.  Thus, like sections 471.38 and 471.391, the plain meaning of the city code does not require or authorize an oath or affirmation.

Finally, the state claims the notarized declarations signed by Hall constitute an oath administered pursuant to law under section 15.72, subdivision 1, and section 471.425, subdivision 4(a).  Section 15.72 provides:

Unless the terms of the contract provide otherwise, a public contracting agency shall make progress payments on a public contract for a public improvement monthly as the work progresses.  Payments shall be based upon estimates of work completed as approved by the public contracting agency.  A progress payment shall not be consider acceptance or approval of any work or waiver of any defects therein.

 

Minn. Stat. § 15.72, subd. 1.  Section 471.425 provides: "Each contract of a municipality must require the prime contractor to pay any subcontractor within ten days of the prime contractor's receipt of payment from the municipality for undisputed services provided by the subcontractor."  Minn. Stat. § 471.425, subd. 4a.  These sections, say nothing regarding authorization of an oath or affirmation.

The state further argues that sections 15.72 and 471.425 as embodied in the contract between the parties and in the notarized certificates for payment authorize an oath pursuant to law.  But even if the contract calls for an oath, and even if the declaration in the certificate for payment is notarized, those facts do not support a charge of perjury.  An oath required under a contract, even if notarized, is merely gratuitous because it is not required or authorized by law.  See, e.g., State v. McCarthy, 41 Minn. 59, 60, 42 N.W. 599, 600 (1889) (stating an oath administered by a justice of the peace, but not required or authorized by any law, cannot be made the basis for a charge of perjury).

In sum, the notarized declarations signed by Hall do not constitute oaths administered pursuant to law.  Accordingly, Hall's conduct, as alleged, does not fall within the meaning of perjury under section 609.48, subdivision 1, and the district court did not err in dismissing the three charges.

2.         The district court also dismissed the charge of theft by temporary taking for lack of probable cause.  The state is prohibited from appealing a pretrial order dismissing a charge for lack of probable cause when dismissal is based on a factual determination.  Minn. R. Crim. P. 28.04, subd. 1.  When dismissal is based on a factual determination, rather than a legal determination, the prosecution is free to reissue the complaint if the state later obtains evidence that establishes probable cause.  State v. Duffy 559 N.W.2d 109, 110 (Minn. App. 1997).  Under rule 28.04, whether the dismissal is based on a factual or a legal determination is a threshold jurisdictional question for this court.  Ciurleo, 471 N.W.2d at 121.  Contrary to the state's argument, the district court's dismissal of the charge of theft by temporary taking is not based on a legal determination.

The crime of theft by temporary taking is completed when the property is taken and does not require an intent to permanently deprive or acquisition under false pretenses.  State v. Larson, 605 N.W.2d 706, 711 (Minn. 2000).  Because the crime is complete when the property is taken, ownership of the property at the time of the taking must be established.  Here, the dismissal turns on whether Hall had a fiduciary relationship with the city, which is a factual determination.  See State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995) (holding the state must establish a fiduciary relationship between a customer and home security contractor to hold the contractor criminally liable for failure to pay subcontractors), review denied (Minn. Feb. 27, 1996).  The district court determined the relationship between the city and Hall fell within the bounds of Minn. Stat. § 471.425 (1998), which provides rules for payment of local government bills, and may even give rise to a civil breach of contract claim, but could not support the charge of theft by temporary taking.  The state is attempting to find a legal issue where there is none.  The pretrial order on this issue is not appealable.

3.         The court denied the state's motion to amend the complaint to add a charge of felony false declaration of a claim based on its determination that the charge was not supported by probable cause.  Again, the state characterizes the court's decision as an error of law when in fact the pretrial order turned on a lack of evidence showing Hall's conduct violated section 471.391.

Sections 471.38 and 471.391 require a contractor's claim for payment to a municipal body be made under a declaration stating that the "account, claim or demand is just and correct and that no part of it has been paid."  Any person "who willfully and falsely makes the declaration" is guilty of a felony under Minn. Stat. § 471.392.  The facts, as alleged by the state, show Hall made a declaration but not the declaration provided for under sections 471.38 and 471.391.  Moreover, to the extent Hall's declaration comports with the declaration required under 471.38, the allegation is Hall breached that part of his declaration that is not required under 471.38.  The denial of the state's motion to amend turned on these factual determinations.  The district court did not err in denying the state's motion to amend.  The prosecution is free to reissue the complaint if the state later obtains evidence that establishes probable cause.  See Duffy, 559 N.W.2d at 111 (holding the state may not appeal from pretrial order dismissing charges for lack of probable cause when state may gather additional evidence and then reissue complaint).

4.         Hall's brief includes a request for attorney fees incurred in defense of this appeal.  See Minn. R. Crim. P. 28.04, subd. 2(6) (defendant responding to pretrial prosecution appeal entitled to reasonable attorney fees and expenses).  A party seeking attorney fees on appeal must make a separate motion, providing the grounds upon which the motion should be granted.  Minn. R. Civ. App. P. 139.06, subd. 1; see also Minn. R. Crim. P. 28.01, subd. 2 (rules of civil appellate procedure apply to criminal appeals, except as otherwise provided in the criminal rules).  Accordingly, we do not address the request for attorney fees.

Affirmed.