*1 fоre, protection against my opinion, a mechanics lien and be- subcontractors had injustice cause of the which would other- rely on the conditions of the suffered wise be the materialmen who general guaranteed contract as by the rights.” have no lien bond. acknowledge
While we third- I would affirm the trial court. party recovery is warranted in cases where surety explicitly bond reasonable
implication expresses an intent to benefit
third-party subcontractors and material-
men, we do not an “intent believe to bene parties
fit” third imputed should be to a
surety private on the basis of a construc surety
tion contract to which that was not party, language surety’s when the MERZ, al., Joseph Appellants, A. et bond, though incorporating the construc reference, tion contract evinces no more LEITCH, Andy аl., Respondents. than an incidental intent to benefit those et parties. third plaintiff-re We hold that No. CX-82-1175. spondents, unpaid subcontractors and Supreme materialmen, Court of third-party are not Minnesota. intended surety beneficiaries of Travelers’ bonds Jan. covering performance private of this con project. struction
Reversed.
YETKA, (dissenting). Justice obligates “faithfully
Travelers’ bond perform majority the contract.” The
[to]
unnecessarily language restricts this when surety only
it holds that the obligated
“complete Here, project.” the Travel- incorporated portions gen-
ers’ bond
eral contract between Northland and Con-
struction Leaders. Section 9 of that con- language, majority
tract contained as the
acknowledges, which read as “The follows: provide pay
Contractor shall for all
materials, labor, water, tools, equipment,
light, power, transportation and facil- necessary
ities for the execution and com-
pletion language, of the work.” Under this “performed”
the contract is not until all provided paid
materials thereunder are for. jobs negotiated in
Construction are not parties,
vacuum. Almost all of the includ-
ing subcontractors, experienced people are
and are aware of the conditions of the
general If contract. Travelers wanted to obligation
limit their under the bond
completion project only, it should clearly not; stated so. It did there-
Williams, Nitz, Krekelberg, Stringer & Oldenkamp, Krekelberg, Charles Pelican C. appellants. Rapids, for Hefte, Schulze, Rufer, Pemberton, Sorlie, Hefte, Kershner, & Richard C. Fer- Sefkow Falls, respondents. gus KELLEY, Justice. taxpayers
Appellants, of residents County, appeal Tail from district Otter dismissing order their claims that court of three members the Otter violated the Min- Commissioners Meeting nesota Minn.Stat. (1982), by cоnducting county at a the time announced for the commencement We hold that there was a technical hold, respondents. further Law We conducting public ly day, prospectively, began going busi- 12:30 on that county’s meeting prior publicly the time over the bills. ness at a the commencement of the annоunced for At approximately 12:50 Commission- imposition result in of the civil will moved, er Leitch and his motion was penalties the statute. seconded, to terminate the respondents did not have the benefit of our Lee, county’s Malcolm K. manager of *3 in recent decision the Land Management and Resource Of- Schools, 332 Community District 742 agenda fice. This not an item nor had (Minn.1983), 1 the was not N.W.2d Commissioner Leitch discussed his inten- intentional, no of the and member tion to move for the termination with other taken, press harmed the action here prior commissioners meeting. to the Com- we affirm. Leitch, however, missioner had informed Lee in earlier the month that unless Lee County The Otter Tail Board of Commis- resigned immediately Commissioner Leitch 8,1980, January required sioners met on as would move that he be terminated at the by Minn.Stat. to schedule meeting December 1980 board for al- meetings. its 1980 The board established leged improprieties. No other notice was days In that meeting four each month. given job might to Lee that his be terminat- designated 22 as year the board December ed. objected No member of the board to it hold a welfare a date on which would bringing prior p.m. the of the motion 1to meeting morning regular in the and a busi- fact, In the 2 board voted 3 to to terminate meeting Fergus in the afternoon. The ness manager the of the of the Journal, county’s legal Daily Falls Management Land and Resource Office. meeting newspaper, published the 1980 respondents The in this case are the three dates, published starting no times for but in commissioners who voted favor of the meetings speci- had board termination. fied no times for commencement. The starting formally reporter announced A Fergus Daily board never from The Falls times, auditor, county shortly p.m. but the who took arrived before 1 but Journal meetings of the official minutes after the termination motion had bеen board, passed. brought recorded all 1980 afternoon business A motion later on meetings p.m. applicants as a matter to fill meeting as at to advertise for formality, though practical position as a her that had even Lee’s alerted business report- The transpired matter the sometimes stаrted ear- she arrived. before motion, customarily original and the county lier. The auditor also er asked about they terminated in the minutes that business meet- told her that had noted board gathered all the ings immediately preceding employment. the afternoon Lee’s She adjourned p.m. with the vote and meetings were information in connection business fact, and, publish- placed business it was The auditor never the termination although day's newspaper. on Neither agenda before ed in the next on agenda objected to the con- newspaper not listed on the nor the occasion business she trаnsacting this board had been discussed duct of board p.m. business before Tail Appellants are residents of Otter 1980 for The board met on Although they appeared be- morning County. meeting. In the its scheduled pro- occasions to board, scheduled, fore the board on several conducted welfare as board, they proposed test actions The minutes of the business business. planned nor to attend the indicate neither attended meeting held December meeting. Malcolm K. Lee adjourned all discus- December chairman had that the Leitch would until 1 knew that Commissioner regular sion employ- fact, make the motion to terminate his In when the on December this, Knowing he chose neither to approximate- at ment. returned from lunch require “adequate meeting anyone meeting statute to no appear at the nor have fact, neither he appear place meeting.” on his behalf. the time аnd tice of appearing ap- his behalf anyone nor judgment, There we said that in our “a peared that afternoon. At at of which the is unaware is * * * board, January next The public] lan [a 6, 1981, the board rescinded its December guage directing of the statute that meet position and Lee remains his as action ings public meaningless if manager of the Land and Resource Man- knowledge that the meet has no agement present time. Office Sullivan, ing place.” is to take 299 Minn. Nevertheless, at at 505. of a N.W.2d
Appellants contend member failing give may penalized present the trial in the case conclud time undеr the adequate notice ed that does not authorize Law; Minnesota requirement by impli court to add a notice give ade- Board failed Otter when, here, enforcement of a cation *4 quate of its December afternoon notice sought. opined purely penalty is He that a meeting; since all the and that business statutory by offense cannot be established county showed after- minutes of the board implication. Relying Moseng, v. State to commence at 1 noon sessions 268, 6, (1959), 263, 254 Minn. 95 N.W.2d penalized for members should be board he stated: thereto, conducting county business express statutory Since there is no re- by though no one harmed even furnishing quirement for notice of the members. conduct board meeting, requirement time of a no such § (1980) days fixed Minn.Stat. by implication. except can exist For January July on the Otter Tail which purposes, some and for some uses of the required Board was to meet. That Open Meeting requirement a of no- required “hold further the board to statute meeting may tice of the time of a be necessary sessions as it deems such extra implied. that cannot be done when But county.” for the interests sought penalty enforcement of a is [as require did not that notice this statute (footnote omitted) sought], here sessions, such as the time and date of extra concluded that: He therefore session, given to the the December be was not re- Since the board public. * * * give no- by any statute quired requires Open Meeting Law that The day tice of the or time of such sessions meetings open to county boаrd “shall be necessary, as it deemed it did not violate § 471.705, subd. 1 public,” Minn.Stat. any by starting at such statute (1982), imposes penalties any civil necessary. deemed provisions. its Minn. person who violates § (1982).1 471.705, subd. The Stat. however, court, The when it made trial express require- Meeting Law contains no dismissing plaintiffs’ claims its orders given of аll be ment that notice case, of our recent did not have benefit public. District (Minn. Schools, Community 332 N.W.2d of a notice court remedied the lack This 1983). ap Newspapers, River provision in v. Credit seeking penalties from a 174, pellants civil 170, were 217 N.W.2d Township, 299 Minn. holding without (1974), construing open school board for 502, 471.705, govеrning body, person provides such with the same subd. 2 1. Minn.Stat. any such part: further to serve on shall forfeit body capacity governing with or in Any person violates subdivision 1 shall who body period equal liability public of time subject personal in the form of such for a penalty person an amount not to exceed was then serv- a civil the term of office such ** * |100 Upon single for a occurrence. ing. person the same connected third violation public At issue there was whether the time prior notice. when was lead to be- penalties against assessed or not civil lieve was to commence is a permissible fоr school board members were violation of the Law. holding meeting public The trial never public given had not ad- determined
because the
been
that the statute
the scheduled time of the
vance notice. We held
He did
find, however,
violated and that
school board members
month the
“[e]ach
pеnalties. Before so
were liable for civil
approved
proceed
board
the minutes of its
* *
length
holding, we discussed at
ings
previous
for the
month
*.” On
pointed out
policy behind the statute. We
each occasion “the minutes disclosed and
previously
that the court
had stated
could read that
the аfternoon
“(1) ‘to
purposes
of the statute are
commenced at
prohibit
being
actions
taken at a secret
Moreover,
p.m.”
1:00 o’clock
he indicated
impossible
it is
for the inter-
where
that if a
member
had made
fully
to become
informed con-
ested
inquiry
auditor or of the
cerning
improp-
decisions or to detect
board
members,
p.m. meeting
the 1
influences,’
Independent
er
Lindahl v.
confirmed, although
time would
been
164,
Minn.
School District No.
inquirer may also
have been told that
(1965); (2)
‘to as-
133 N.W.2d
sometimes a matter was considered
informed,’
public’s right
sure the
p.m.
before 1
12:30
between
Independent
Channel
Inc. v.
School
Thus,
and 1
hold
that the
306, 313, 215
District No.
298 Minn.
*5
meeting
time of the
on the afternoon of
814,
(1974);
(3) ‘to
N.W.2d
821
and
afford
22,
1980 was 1
it
because
public
opportunity
present
the
an
to
its
published consistently
had been noted and
board,’
v.
views
Credit
prior meetings
in the official
of
of
minutes
170, 175,
Township, 299 Minn.
217
River
the
board.
(1974).”
N.W.2d
506
News-
St. Cloud
if
The trial
here notеd that even
pointed
at 4.
papers, 332 N.W.2d
We also
1
it
clear
the
were
is
Open Meeting
out that the Minnesota
Law
meeting
by
that
held
the Otter Tail
the
was enacted for
benefit and is to be
meeting
Board was not a secret
favorably
public.
construed most
to
Newspapers,
place
ty (concurring special- commissioners were aware of Justice Law in interpretation ty)- Moberg or St. Cloud 2 of Minn.Stat. Subdivision long rendered after decisions were those (1982) provides that a third violation of in dispute. here the board Open Meeting Law the violator forfeits indicated, cases, clearly as hold that Those in right both the to continued tenure office might subject pen members again to run for that office and proceeding alty akin to a fine to trans equal for a of time to the term of period act business a few minutes before serving. person office such was then time of the As we the scheduled words, violations, even if harm- three anyone in ad Moberg, indicated whether faith, good if less and committed unrelat- versely affected action taken at the ed, mandatory in a forfeiture of of- result essentially irrelevant in meeting is deter fice. harsh It was concern this result mining statute has been violat whether the that, large part, influenced trial that in case ed. we do note this strictly court to construe the statute with by respondents taken was the actiоn before requirement. respect to a notice
Moberg agree I opinion with this court’s but wish representative press A harmed. to add I of office that believe forfeiture meeting shortly present at before statute, provision particularly in the this very shortly thereafter had an p.m. and law, may cоurt has now construed the opportunity examine minutes constitutionally infirm. Pavlak See the action report taken (1979); Growe, N.W.2d Minn. and, fact, report day’s did it in the next §7, Const. art. Lee, although newspaper. Even he knew a motion would be made terminate *6 af his at 22, 1980, in
ternoon of neither appear anybody ap nor to have
tended personally
pear on his behalf. He did not during the
appear at course anyone appear meeting nor there did Barbara J. Steven C. JOHNSON and appellants no on his behalf. These had Johnson, Appellants, attending intention of Final ly, the action takén at very at the next rescinded INC., HELARY, d.b.a. Charlie’s county board and Lee’s termination of em Club, Respondent, ployment was As the trial court cancelled. Linсoln, Surety Company, Universal observed, aggrieved. no one was properly Nebraska, Respondent. listed, just con Because factors we circumstances sur clude that the facts and No. C2-83-807. 22,1980 rounding meeting of the December Supreme Court of Minnesota. justify do the Otter and any penalty this case therefore Jan. Since the issuance affirm. decision, this Moberg and commissions bodies
boards put good faith or lack of
are notice