This opinion will be unpublished and

may not be cited except as provided by

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






Whitney E. Tarutis,


Joseph R. Powers, et al.,



Filed February 5, 2002

Affirmed in part and reversed in part

Stoneburner, Judge


Beltrami County District Court

File No. C3001810



Whitney E. Tarutis, 3795 West Division Street, Bemidji, MN 56601 (pro se appellant)


Stephen R. Young, Drahos, Young & Kieson, PA, 1005 Paul Bunyan Drive Northwest, Bemidji, MN 56601 (for respondents)



            Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.


U N P U B L I S H E D  O P I N I O N



Appellant Whitney E. Tarutis challenges the district court’s sua sponte grant of summary judgment to some respondents in this boundary-dispute action and the award of costs and disbursements against him.  Because the district court correctly determined that there are no issues of material fact regarding the location of the boundary, we affirm the summary judgments entered.  But because none of the parties prevailed in this action, we reverse the award of costs and disbursements against Tarutis.



Tarutis owns land northeast of Bemidji.  Respondents Powers own and live on land that is adjacent to Tarutis’s land on the south.  Respondents Wegeworths and VanKampens jointly own an undeveloped tract of land, which is also south of Tarutis’s land and west of Powers’ land.  Tarutis, representing himself, brought an action in 1999 against respondents seeking a declaratory judgment locating the boundary line between his property and respondents’ properties, damages for any encroachment on his property by respondents, or an injunction requiring removal of any encroachments.

            After initiating the action, Tarutis had his property surveyed.  The survey places Powers’s fence and yard on Tarutis’s property and places the boundary between Tarutis’s land and the land owned by Wegeworths and VanKampens through an undeveloped woods and swamp.  According to the survey, a cluster of five steel fence posts and a “no trespassing” sign, placed by Tim VanKampen, were located on Tarutis’s land.

            The parties mediated the dispute in December 2000.  Wegeworths and VanKampens did not attend but were represented by counsel.  A tentative agreement was reached.  Among other agreements, all parties agreed to acknowledge the boundary determined by Tarutis’s surveyor, Tarutis agreed to dismiss his claims for damages with prejudice, and the parties agreed that they all would pay their own costs and attorney fees.  The proposed settlement agreement was later drafted by respondents’ counsel and was signed by respondents in January 2001.  Tarutis never signed the agreement.

            In March 2001, Tarutis gave notice of a hearing, set for April 25, 2001 (the trial date), on his motion for summary judgment against Wegeworths and VanKampens.  After the pre-trial hearing on April 24, 2001, the district court issued an order (1) granting summary judgment for Tarutis against respondent Tim VanKampen; (2) granting summary judgment for respondents Doreen VanKampen and Wegeworths against Tarutis; (3) awarding Tarutis costs and disbursements from Tim VanKampen[1]; (4) awarding Doreen VanKampen and Wegeworths costs and disbursements from Tarutis; and (5) awarding Tarutis judgment determining the location of the boundary line between the properties according to Tarutis’s survey.  The district court stated that it relied on the “inherent authority of the court” to grant summary judgment sua sponte and noted that at the pre-trial conference Tarutis “clearly stated that he was waiving the issue of damages.”  The district court concluded that no genuine issues of material fact remained because Tarutis waived the issue of damages and the parties had agreed on the boundary line.

            On May 17, 2001, Tarutis moved for summary judgment against Powers.  On May 25, 2001, Tarutis objected to costs and disbursements taxed by Doreen VanKampen and Wegeworths.  Without further hearing, the district court issued an Amended Order on June 11, 2001 granting judgment on Tarutis’s claims against Powers pursuant to the terms of the settlement agreement draft, without costs or disbursements to either party.  The order states that it is based on Tarutis’s statement at the pre-trial conference that he had agreed to a settlement with Powers as set forth in the settlement agreement draft. 

Tarutis moved for post-judgment relief.  The district court denied his motion.  Doreen VanKampen and Wegeworths were granted all costs and disbursements taxed.  Tarutis appeals.[2] 



On appeal from a summary judgment, this court determines whether there are any issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The district court has the power to grant summary judgment sua sponte.  Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 279-80, 230 N.W.2d 588, 591-92 (1975). 

The district court found that, based on statements by Tarutis at the pretrial, there were no remaining fact issues in Tarutis’s claim against VanKampens and Wegeworths and that the proposed settlement agreement accurately set forth the terms of the agreed settlement between Tarutis and Powers.  Tarutis did not order a transcript, so this court is unable to verify what was said at the pre-trial conference.  If an appellant fails to provide a transcript, this court is limited to deciding whether the district court’s findings support its conclusions of law.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995). 

On the record before us, we can only conclude that the district court’s findings support its conclusion that there were no material fact issues remaining between Tarutis and the adjoining landowners and that the case could properly be disposed of by summary judgment.  The findings also support the district court’s conclusion that, after settlement, Powers no longer had an obligation to respond to discovery.

Tarutis challenges the award of costs and disbursements against him.  In an action to determine a boundary, the district court has authority to “order respecting costs and disbursements as it shall deem just.”  Minn. Stat. § 559.23 (2000).  The district court is mandated to allow reasonable costs to a prevailing party and has discretion to determine which party, if any, qualifies as a prevailing party.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54-55 (Minn. 1998).  An appellate court may overturn a district court’s award for costs and disbursements when the award is an abuse of discretion.  Kellar v. Holtum,605 N.W.2d 696, 703 (Minn. 2000).

It is not clear why the district court chose to grant summary judgment against Tarutis and in favor of Doreen VanKampen and Wegeworths, despite awarding judgment to Tarutis on the boundary issue.  It is not disputed that Tarutis was required to join all of the co-owners in this action.  Based on the limited record presented to this court, we conclude that, despite summary judgment entered in favor of these defendants, none of the parties were “prevailing parties” and the district court abused its discretion by awarding costs and disbursements against Tarutis.[3]  We reverse this award.

There is no merit to Tarutis’s argument that the court should have ordered injunctive relief, should have established a judicial landmark, or that the district court abused its discretion by denying his motion for relief from judgment and motion for a new trial. 

A party seeking injunctive relief must show that the possible legal remedy is inadequate and that an injunction is necessary to prevent great and irreparable harm.  Upper Midwest Sales Co. v. Ecolab, Inc., 577 N.W.2d 236, 240 (Minn. App. 1998).  Tarutis failed to make the necessary showing for injunctive relief.  Tarutis’s brief merely asserts, without authority or legal analysis, his “legal right” to a “mandatory injunction.” We, therefore, decline to address these claims.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).

The district court has statutory authority to direct a competent surveyor to establish a permanent stone or iron “judicial landmark” in accordance with a judgment locating a boundary line.  Minn. Stat. § 559.25 (2000).  The district court, however, is not required to order the installation of judicial landmarks.  Id.  On the record before us we cannot find any abuse of discretion in the district court’s denial of Tarutis’s motion requesting a judicial landmark in this case.

Tarutis failed to argue how the district court abused its discretion in denying his post-judgment motions.  He merely referred to a memorandum filed in the district court.  This court can disregard issues not fully briefed on appeal.  See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach issue “in the absence of adequate briefing”).  Here, because we have found no error or abuse of discretion by the district court with the exception of the award of costs and disbursements against Tarutis, we decline to address this allegation.

Affirmed in part and reversed in part.



[1] Tarutis, however, failed to tax these costs.

[2] Respondents assert that Tarutis’s notice of appeal was premature, thus untimely and void, because notice of appeal was served prior to the date on which respondents served notice of the filing of the order denying Tarutis’s post-trial motions.  This court determined by Order dated September 21, 2001 that Tarutis’s appeal is not premature because it was filed after the district court issued its order of August 7, 2001 denying Tarutis’s postdecision motions.  We decline to readdress this issue.  See Minn. R. Civ. App. P. 140.01 (stating “[n]o petition for rehearing shall be allowed in the Court of Appeals”).

[3] Doreen VanKampen’s costs and disbursements are also Tim VanKampen’s costs and disbursements because they responded to the complaint in a single answer.