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STATE OF MINNESOTA IN SUPREME COURT A11-0345 Tax Court Dietzen, J. Concurring, Anderson, G. Barry, Page, and Anderson, Paul H., JJ.

Continental Retail, LLC, Relator, vs. Filed: August 17, 2011 Office of Appellate Courts

County of Hennepin, Respondent. ________________________ William R. Skolnick, Amy D. Joyce, Skolnick & Shiff, P.A., Minneapolis, Minnesota, for relator. Michael O. Freeman, Hennepin County Attorney, Lisa C. Hahn-Cordes, Assistant County Attorney, Minneapolis, Minnesota, for respondent. ________________________ SYLLABUS 1. The failure to bring a timely motion for a new trial or amended findings

precludes appellate review of an evidentiary ruling of the tax court. 2. The tax court's determinations of market value are supported by the record

and are not clearly erroneous. Affirmed. Considered and decided by the court without oral argument.

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OPINION DIETZEN, Justice. Relator Continental Retail, LLC, seeks certiorari review of the market value determinations by the Minnesota Tax Court for a commercial building located in Brooklyn Park, Minnesota, for the assessment dates of January 2, 2006, January 2, 2007, and January 2, 2008. At trial, the tax court increased the market value determinations for all three years. Continental argues that the tax court's value determinations are excessive and not supported by the record over the assessed value of the property. Because we conclude that the tax court's value determinations are supported by the record and are not clearly erroneous, we affirm the decision of the tax court. Continental Retail owns real property located at 8570 Edinburgh Centre Drive North, Brooklyn Park, Minnesota. Continental is a development company owned and operated by Bradley Hoyt. The subject property consists of approximately 124,432 square feet, and is improved with a multi-tenant building consisting of one floor with a gross building area of approximately 23,325 square feet, and a gross leasing area of approximately 22,767 square feet. The improvements to the property were constructed in 2004 at an estimated cost of $2,432,195, excluding land, entrepreneurial profit, and other soft costs. Prior to

construction of the building, soil corrections were carried out on the property and building pads were prepared. In February 2001, GME Consultants, Inc. prepared a soil assessment and recommended that a Geopier foundational support system be used to prepare the site for the proposed building using the existing building pads. A certificate 2

of occupancy was issued in February 2005. Prior to occupancy of the building by tenants, wall cracks in the fire riser room in the northeast portion of the building were investigated by Fischer Engineering, Inc. The engineer recommended filling the cracks and monitoring the area for further movement. In 2007, Edina Realty, a tenant of the building, reported to the property manager a physical separation between the ceiling and walls in its lease space. The building

maintenance company investigated the problem and submitted a July 2007 report to the property manager that identified three areas of concern related to settlement of soils and movement of building components; however, the company noted that the movement was not a safety issue. Edina Realty vacated its lease space in late 2008 and entered into a settlement to terminate the lease for a lump sum payment of approximately $300,000. Before it made repairs to the building, the building maintenance company hired American Engineering Testing, Inc., to conduct a building monitoring program. The monitoring program was initiated in September 2007 and continued through the spring of 2009. In 2010, LJM Group, Inc., another property consultant, submitted a report

outlining the results of their inspection of the property and made several recommendations regarding repairs to address building movement concerns. The occupancy for the building varied over the three assessment years. The parties stipulated that as of January 2, 2006, 16,653 square feet of the gross leasable area was occupied, for an occupancy rate of 73%. The occupancy rate for the second

assessment date was 66%, and the occupancy rate for the third assessment date was 62%.

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Continental filed petitions challenging the Hennepin County assessor's estimated market value of $2,216,000 for the January 2, 2006, January 2, 2007, and January 2, 2008 assessment dates. At trial, Continental introduced the expert testimony and appraisal report of Lawrence Kramer. Kramer testified that the value of the property was

$1,490,000 on January 2, 2006, $1,340,000 on January 2, 2007, and $1,100,000 on January 2, 2008. Continental also introduced the testimony of, among others, the

property owner and the property manager. Respondent Hennepin County introduced the expert testimony and appraisal report of Shelagh Stoerzinger. Stoerzinger testified that the value of the property was

$3,776,600 on January 2, 2006, $3,967,200 on January 2, 2007, and $2,573,400 on January 2, 2008. A summary of the values given to the subject property by the county assessor and each of the experts for the relevant assessment dates are as follows: Year 2006 2007 2008 County Assessor $2,216,000 $2,216,000 $2,216,000 Kramer $1,490,000 $1,340,000 $1,100,000 Stoerzinger $3,776,600 $3,967,200 $2,573,400

Following trial and the submission of post-trial briefs, the tax court filed its order concluding that the value of the subject property as of January 2, 2006 was $3,776,600, the value as of January 2, 2007 was $3,967,200, and the value as of January 2, 2008 was $2,416,600. Continental subsequently filed a petition for writ of certiorari to this court. I. On appeal, Continental argues that the tax court erred in determining that (1) the County's appraiser, Stoerzinger, was qualified to testify as an expert witness; (2) the

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settling of the building was not a detrimental condition that adversely affected the market value of the property until the January 2, 2008, assessment date; (3) Continental's appraiser, Kramer, did not value the fee simple interest of the property; and (4) the County's appraiser applied the proper approaches to valuing the property. Our review of a final decision of the tax court is limited and deferential. See S. Minn. Beet Sugar Coop. v. Cnty. of Renville (SMBSC), 737 N.W.2d 545, 551 (Minn. 2007); see also Eden Prairie Mall, LLC v. Cnty. of Hennepin, 797 N.W.2d 186, 192 (Minn. 2011). Specifically, a final order of the tax court is reviewable by this court on the grounds that the tax court lacked jurisdiction, that the order is not justified by the evidence or in conformity with the law, or that the order is affected by any other error of law. Minn. Stat.

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