This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Michael Birch, et al.,


Greenway Township,

Randy J. Rehnstrand, et al.,


Filed June 19, 2001


Crippen, Judge



Itasca County District Court

File No. C594167



Ellen E. Tholen, 525 East Itasca Street, Suite 103, Grand Rapids, MN 55744 (for appellants)


Kent E. Nyberg, Kent E. Nyberg Law Office, Ltd., 20 N.E. Fourth Street, Suite 101, Grand Rapids, MN 55744 (for respondents)


            Considered and decided by Hanson, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellants maintain that the trial court erred by finding them in contempt of court.  Because the record demonstrates that findings of fact supporting the order were clearly erroneous, we reverse. 


In April 1994, appellants Michael and Cathy Birch granted respondents Randy Rehnstrand and others a 33-foot roadway easement that ran along appellants’ eastern property line.  Appellants constructed a berm, a driveway (spur road) that connected with the roadway, and planted Norway Pines within 16½ feet of the centerline of the road.  The location of the road, the construction of the berm, the posting of signs, and other bases for disputes led to an action by respondents where the parties sought clarification of their right to use the easement.  In May 1999, pursuant to a bench trial, the court ordered appellants to remove the “existing berm, posts and trees * * * adjacent to the Rehnstrand-Gorton easement and the newly constructed driveway” because it encroached on the 33-foot easement, was a potential safety hazard, and was “an eyesore.”

A few weeks later, appellants brought a motion for a new trial and amended findings.  In October 1999, the court stated that it did not intend to order the removal of appellants’ spur road as stated in the May 1999 order but otherwise denied appellants’ motions for amended findings and a new trial.  In August 1999, respondents brought a contempt motion, contending that appellants failed to comply with the May 1999 order.  The trial court found that appellants had partially complied with the order by removing the post and trees, but that they still needed to remove the berm.  The court denied respondents’ motion to find appellants in contempt and ordered appellants to remove the berm by November 15, 1999.

In February 2000, respondents brought a new motion to find appellants in contempt for failure to abide by the October 1999 order requiring removal of the berm by November 15, 1999, and also moved for an award of reasonable attorney fees.  The trial court held a hearing on the matter in March 2000, and in June issued an order finding appellants in constructive contempt of court.  The court ordered that appellants pay a civil fine of $2,500 but provided that appellants could “purge the contempt by removing the berm and all obstructions to within six feet of the popple trees currently located on the berm” by July 1, 2000.[1]  The court also granted respondents’ motion for attorney fees in the amount of $300 and rejected appellants’ argument that the berm was in existence prior to the building of the easement roadway in 1994.

In June 2000, respondents brought another motion to find appellants in civil contempt, this time for removing a 40-inch extension to a culvert that respondents had added to prevent blockage and for “obstructing use of the Easement Right-of-Way by blocking the road” with an automobile.  In June and July 2000, appellants brought motions to vacate the existing easement, vacate the June 2000 contempt order, and amend the findings of the June order to reflect that the berm had been in existence since 1994.  On July 24, 2000, the trial court held a hearing on respondents’ and appellants’ motions.  During the hearing, respondents acknowledged that the berm had been removed in compliance with the “third deadline,” and noted that they were bringing another motion to find appellants in contempt because appellants were allegedly interfering with their right to access the roadway and were preventing them from maintaining the culvert.

In October 2000, although referring to the July 2000 hearing, the court made no mention of the culvert issue or the blocking of the roadway, but stated that it was not amending the June 2000 findings because the berm had not been in existence since 1994.  The court then found appellants in constructive contempt of court for failure to remove the berm in compliance with the June order, ordered appellants to remove the berm, and scheduled appellants for sentencing on November 27, 2000.


“A conditional contempt order, which provides a method by which the contemnor may purge the contempt, is not a final appealable order.”  Johnson v. Johnson, 439 N.W.2d 430, 431 (Minn. App. 1989) (citation omitted).  But a contempt order that immediately imposes a sanction is appealable under Minn. R. Civ. App. P. 103.03(e).  Id.; accord Maher v. Maher, 393 N.W.2d 190, 195 (Minn. App. 1986) (concluding that the court order holding appellant in contempt was appealable under rule 103.03(e) because it “directed immediate incarceration”).  

Because a sanction has not yet been imposed, the October 19, 2000 order is not final and therefore not appealable.  But given the extensive amount of litigation between the parties, we will review the matter in the interests of judicial economy, putting to rest at least the berm issue.  See Minn. Civ. App. P. 103.04 (stating that appellate courts may review any matter “as the interest of justice may require”); see also Kroeplin v. Haugen, 390 N.W.2d 872, 877 (Minn. App. 1986) (granting discretionary review of a conditional contempt order “in the interests of judicial economy and in view of the need for finality in [the] case”), review denied (Minn. Sept. 25, 1986).  Moreover, we are mindful that the October 2000 order, although not issuing a sanction, schedules the occurrence of that judicial action.

            An order of contempt will be overturned if the findings of fact supporting the order are clearly erroneous. Minn. R. Civ. P. 52.01; Mower County Human Servs. ex rel. Swancutt v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996) (“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous * * *.”).  In this case, the evidence does not support the trial court’s findings that appellants had not abided by the terms of the June 2000 contempt order.  

            By the time of the hearing on the January 2000 contempt motion, appellants had removed most of the berm.  After respondents asked that another 200 feet be removed, the parties agreed that another 15 feet should be taken out and the record indicates that appellants complied with this agreement sometime before the July 24, 2000 hearing.[2]  The removal of the additional 15 feet brought the berm to within six feet of the popple trees in compliance with the June 2000 order and the final demand of respondents.

            Because the record does not sustain the trial court’s determination that the berm had not yet been removed in compliance with its June 2000 order, we reverse the October 19 order finding appellants in constructive contempt of court.  We have no cause to review the June order because it appears in the record that the adjudicated contempt has been purged by appellants’ act of “removing the berm and all obstructions to within six feet of the popple trees.”[3]  See, e.g., Tell v. Tell, 383 N.W.2d 678, 681 (Minn. 1986) (stating defendant “was allowed to purge the contempt order and avoid execution of the sentence by payment of $2,000”); Swancutt, 551 N.W.2d at 222 (stating the contempt order included “a purge provision” that allowed defendant “to avoid serving the sentence by complying with the purge conditions”).



[1] In its Memorandum to the June 8, 2000 Order, the trial court acknowledged that “previous orders did not set a precise point for removal of the berm” but the parties now agreed that removal within at least six feet of the popple trees would be sufficient.

[2] In Randy Rehnstrand’s affidavit filed August 3, 2000, he states:

The Birches had ample time and extensions to remove the berm.  From the time the berm was constructed until it was only recently removed took over 1½ years. 

But appellants had not removed the berm by June 29, 2000.  In Michael Birch’s affidavit of June 29, 2000, he states that they (appellants) had accepted the June 8 order, which required them to remove the berm up to the tree line, and indicated that they were in the process of “removing that berm area.”

[3] Respondents’ motion to find appellants in contempt of court for interfering with their “right to access the road by blocking it” and “interfering with [their] right to maintain [the] culvert” is not properly before this court as the trial court has not yet ruled on that matter.