city-of-apple-valley-v-william-c-thompson-deceased-below-gene ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0299
City of Apple Valley, petitioner,
Respondent,
vs.
William C. Thompson (deceased), et al.,
Respondents Below,
Gene Rechtzigel, individually and as trustee of
Evelyn I. Rechtzigel Trust and Frank H. Rechtzigel
Charitable Remainder Unitrust,
Appellant.
Filed November 16, 2015
Affirmed
Connolly, Judge
Dakota County District Court
File No. 19HA-CV-14-1763
Robert B. Bauer, Michael G. Dougherty, Brian J. Wisdorf, Dougherty, Molenda, Solfest,
Hills & Bauer P.A., Apple Valley, Minnesota (for respondent)
Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant, a property owner, challenges the district court’s orders granting the
eminent-domain petition filed by respondent, a city, and denying appellant’s motion for
summary judgment and request for relief under Minn. Stat. § 554.02 (2014). Because we
see no error of law in either order, we affirm.
FACTS
In 1860, William Thompson, deceased, acquired a piece of real property, most of
which he later conveyed. One part he did not convey was a strip of land about half a mile
long and 15 to 20 feet wide (the gap) in respondent City of Apple Valley (the city). No
subsequent owner of the gap has been recorded.
When the city realized that it did not own the gap although its water and utilities
are located within it, the city passed a resolution authorizing the use of its eminent-
domain power to acquire the gap by the quick-take process and began an eminent-domain
action. The city notified every landowner who was in any way likely to be affected by its
taking of the gap.
One of those notified was Fischer Sand and Aggregate (Fischer); another was
appellant Gene Rechtzigel, acting individually and as trustee of the Evelyn I. Rechtzigel
Trust and the Frank H. Rechtzigel Charitable Remainder Unitrust. Appellant moved to
dismiss the city’s eminent-domain action for lack of jurisdiction, failure to join an
indispensable party; relief under Chapter 554 of the Minnesota Statutes, and lack of
ripeness; he also moved for summary judgment and for attorney fees and costs. Hearings
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were held on the city’s eminent-domain petition and appellant’s motions. After the
hearings, the district court issued two orders, one denying all of appellant’s motions and
the other granting the city’s eminent-domain petition and permitting the city to deposit
the price of the gap with the court, thus acquiring fee title, interest, and right to
possession.
Appellant challenges the orders, arguing that the district court erred by: (1) not
dismissing the proceedings for the city’s failure to join an indispensable party under
Minn. Stat. § 117.036, (2) not dismissing or staying the proceedings for lack of
jurisdiction, (3) not dismissing the proceedings under Minn. R. Civ. P. 12.02(e) and
Minn. R. Civ. P. 19.01, (4) denying appellant’s motion for summary judgment,
(5) granting the city’s petition for eminent domain, and (6) not granting appellant
attorney fees and costs under Minn. Stat. § 554.02.11
Appellant also argues that the district court “improperly engaged in verbatim adoption”
of the city’s proposed orders denying appellant’s motions and granting eminent domain.
While this is true of the order granting eminent domain, it is not true of the order denying
appellant’s motions. In any event, “[a] district court’s verbatim adoption of a party’s
proposed findings and conclusions of law is not reversible error per se.” Schallinger v.
Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005) (citations omitted), review denied
(Minn. Sept. 28, 2005). Moreover, “[a]doption of a party’s proposed findings by a
district court is generally an accepted practice,” and this court “examines the findings to
determine whether they are clearly erroneous.” Id. But see Lundell v. Coop. Power
Ass’n, 707 N.W.2d 376, 380 n.1(Minn. 2006) (“We discourage district courts from
adopting proposed findings of fact and conclusions of law verbatim because it does not
allow the parties or a reviewing court to determine the extent to which the court’s
decision was independently made.”). Thus, while verbatim adoption may not be the best
practice, it is not grounds for reversal.
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DECISION
1. Failure To Join An Indispensable Party
Statutory interpretation is a question of law and is reviewed de novo. In re Estate
of Barg, 752 N.W.2d 52, 63 (Minn. 2008).
“[B]efore commencing an eminent domain proceeding, the acquiring authority
must make a good faith attempt to negotiate personally with the owner of the property in
order to acquire the property through direct purchase instead of the use of eminent
domain proceedings.” Minn. Stat. § 117.036, subd. 3 (2014). “For purposes of this
section, ‘owner’ means fee owner, contract purchaser, or business lessee who is entitled
to condemnation compensation under a lease.” Minn. Stat. § 117.036, subd. 1a (2014).
Appellant argues that the district court erred in interpreting “owner” to mean the last
owner of record, namely the late William Thompson, instead of appellant because “[the
city] had express knowledge prior to the commencement of the [eminent domain] action
that [appellant] owned the property.”
Appellant argues that “owner,” defined in Minn. Stat. § 117.036, subd. 1a, means
“fee owner, contract purchaser, or business lessee” and does not mean “record owner.”
But there was neither a record owner nor an adjudicated owner of the gap with whom the
city could have negotiated the direct purchase of the property in order to comply with
Minn. Stat. § 117.036, subd. 3, because the last record owner was dead and no other
owner has been adjudicated.2
2
This court has twice noted that appellant has not attempted to register his ownership of
the gap. In re Application of Fischer Sand & Aggregate, No. A14-0735, 2015 WL
4The district court did not err in not interpreting Minn. Stat. § 117.036, subd. 3, to
require the city to negotiate the direct purchase of the gap with appellant (who, being
neither the adjudicated owner nor the owner of record, could not have sold it in any
event).
2. Jurisdiction
While the filing of an appeal suspends the district court’s authority “to make any
order that affects the order or judgment appealed from,” the district court “retains
jurisdiction as to matters . . . collateral to” that order or judgment. Minn. R. Civ. App. P.
108.01, subd. 2.
Appellant argues that the district court lacked jurisdiction over the city’s eminent-
domain petition because, at the time of the October 2014 hearing, two related cases, In re
Application of Rechtzigel, No. A14-0449, 2014 WL 6609118 (Minn. App. Nov. 24, 2014)
(Rechtzigel), and In re Application of Fischer Sand & Aggregate, No. A14-0735, 2015
WL 1128658 (Minn. App. Mar. 16, 2015), review denied (Minn. May 27, 2015) (Fischer)
were before this court.3 The district court noted that “the dispute over the [gap’s] eastern
boundary line does not directly impact [the city’s] eminent domain action” and that “[the
city] has provided proper notice to all parties who may have a claim to the land at issue,
be it [Fischer] or [appellant].” Appellant does not dispute this. The district court did not
1128658 at *1 (Minn. App. Mar. 16, 2015) (“[A]ppellant did not perfect an application to
register the gap.”), review denied (Minn. May 27, 2015); In re Application of Rechtzigel,
No. A14-0449, 2014 WL 66091188, at *1 (Minn. App. Nov. 24, 2014) (“[Appellant] . . .
has not yet initiated an action to register ownership of the gap.”).
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After the hearings, but before the district court issued its orders, this court released
Rechtzigel.
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err in concluding that the pending appeals did not deprive it of jurisdiction over the
eminent-domain action.
3. Failure to Dismiss Under Minn. R. Civ. P. 12.02(e) and Minn. R. Civ. P. 19.01
Appellant argues that the city failed to set forth a legally sufficient claim for relief,
as required by Minn. R. Civ. P. 12.02(e), because it did not join Fischer, whose joinder as
an indispensable party was required under Minn. R. Civ. P. 19.01. But neither in his brief
nor in his reply brief does appellant dispute the district court’s statement that, “[b]ased
upon [Fischer]’s declarations [that it did not believe it was an indispensable party to the
proceedings] and quitclaim deed [conveying to the city any interest Fischer might have in
the land the city intended to acquire] this court cannot find that [Fischer] is an
indispensable party.” Therefore, the district court did not err in failing to dismiss the
proceedings under Minn. R. Civ. P. 12.02(e) and Minn. R. Civ. P. 19.01.
4. Denial of Summary Judgment
Appellant moved for summary judgment on the ground that the city had failed to
provide any evidence to support its contention that the taking of the land was for various
public purposes; he also argued that the district court was obliged to rule on his
summary-judgment motion before holding a hearing on the city’s eminent-domain
petition. But the city complied with the statutory requirements that it file a petition
describing the land it wanted to acquire, stating why it wanted the land, and identifying
all those with a recorded or known interest in the land, see Minn. Stat. § 117.055, subd. 1
(2014), and that it provide notice of the petition and of the time and place of a public
purpose hearing, see Minn. Stat. § 117.055, subd. 2 (2014). The district court then
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complied with the statutory requirement that, upon receiving proof of service of notice of
the petition and the hearing, it “hear all competent evidence offered for or against the
granting of the petition.” See Minn. Stat. § 117.075, subd. 1.
Appellant cites no support for his view that the district court should have required
the city “to provide proof of public purpose prior to the hearing contemplated by
§ 117.075 in response to a summary judgment motion,” claiming that this is “a matter of
first impression.” But the statute clearly requires a district court to hear the evidence for
and against the condemnation when it is notified of service; it does not provide that a
condemnation petition may be resolved on another party’s motion for summary
judgment. The district court did not err in denying summary judgment on procedural
grounds.
5. Granting of Eminent Domain
“[T]here are two levels of deference paid to condemnation decisions: the district
court gives deference to the legislative determination of public purpose and necessity of
the condemning authority[,] and the appellate courts give deference to the findings of the
district court, using the clearly erroneous standard.” Lundell v. Coopertive Power Ass’n,
707 N.W.2d 376, 381 (Minn. 2006). “[A] condemning authority . . . must determine that
there is a public use for the land and that the taking is reasonably necessary or convenient
for the furtherance of that public use.” Id. at 380.
A. Public purpose
“Public purpose is construed broadly. The standard for overturning a condemning
authority’s decision on public purpose grounds is very strict.” Id. at 381 (quotation and
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citation omitted). “If it appears that the record contains some evidence, however
informal, that the taking serves a public purpose, there is nothing left for the courts to
pass upon.” Hous. and Redev. Auth. v. Minneapolis Metro Co., 259 Minn. 1, 15, 104
N.W.2d 864, 874 (1960).
In its order granting the petition, the district court relied on the testimony of the
city’s director of public works, who testified that storm-sewer and sanitary-sewer lines, to
which the city must have access for maintenance, cross the gap at four locations; that the
city plans to expand both a pond and a park on the city property adjacent to the gap, and
that a road that now terminates at the gap must be extended because of a development
agreement. Thus, there was evidence to support the determination that the taking serves a
public purpose.
B. Necessity
“Overwhelming evidence that the taking is not necessary” is required “[t]o
overcome a condemning authority’s finding of necessity[.]” Lundell, 707 N.W.2d at 381.
“The mere suggestion of possible alternatives to the condemning authority’s plan will not
in itself support a finding of arbitrariness.” Id. (quotation omitted). The district court
concluded that, because appellant “failed to present any evidence at the hearing[, he had]
not met [his] burden to establish that the taking is not necessary”; although he did
“elicit[] testimony to suggest that the city could simply obtain a utility easement for each
of these purposes rather than condemning the entire [gap,] . . . [i]t would be unreasonable
to require the city to obtain multiple utility easements in order to maintain a strip of land
that has no independent purpose.”
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Particularly in light of its obligation to give deference to the city’s determination,
the district court did not err in granting the eminent-domain petition.
6. Attorney Fees Under Minn. Stat. § 554.04 (2014)
Finally, appellant argues that the district court erred in denying him the attorney
fees mandatory under Chapter 554 (the anti-SLAPP statute). Whether the anti-SLAPP
statute applies is a legal question of statutory interpretation and is reviewed de novo.
Middle-Snake-Tamarac Rivers Watershed Dist. v. Stengrim, 784 N.W.2d 834, 840 (Minn.
2010). A strategic lawsuit against public participation, or SLAPP, is a lawsuit initiated to
either prevent citizens from exercising their political rights or to punish them for having
done so. Id. at 838 (interpreting the anti-SLAPP statute).
[T]he first step in evaluating an anti-SLAPP motion is to
determine whether the party seeking dismissal under the anti-
SLAPP statute has made a threshold showing that the
underlying claim materially relates to an act of the moving
party that involves public participation.
Leiendecker v. Asian Women United of Minnesota, 848 N.W.2d 224, 229 (Minn. 2014)
(citing Minn. Stat. § 554.02, subd. 1 (2008) and holding that allegations in a complaint do
not meet the requirement that the responding party produce clear-and-convincing
evidence that the moving party is not entitled to immunity) (quotation omitted), as
modified 855 N.W.2d 233 (Minn. Sept. 3, 2014).
Appellant has not shown that the city’s eminent-domain proceeding was materially
related to his public participation in government. The city showed that its proceeding
resulted from its realization that it had utilities on a strip of land it did not own and its
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need to extend and maintain those utilities. The anti-SLAPP statute has no application
here, and appellant is not entitled to attorney fees under it.
Affirmed.
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