This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ronald Richard Johnson,
City of Shorewood, et al.,
Hennepin County, Minnesota,
Filed February 3, 2004
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. MC 02-721
Ronald R. Johnson, 5355 Shady Hill Circle, Shorewood, MN 55331 (pro se appellant)
George C. Hoff, Kimberly B. Kozar, Hoff, Barry & Kuderer, P.A., 160 Flagship Corporate Center, 775 Prairie Center Drive, Eden Prairie, MN 55344-7319 (for respondents City of Shorewood, et al.)
Amy Klobuchar, Hennepin County Attorney, Robert T. Rudy, Senior Assistant County Attorney, 2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County)
Considered and decided by Schumacher, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant Ronald Johnson sued the City of Shorewood and Hennepin County, raising numerous claims related to the City of Shorewood’s imposition of special assessments that were certified to Hennepin County for collection. The city and the county moved for summary judgment, and Johnson moved to stay the proceedings pending final resolution of his federal court action against the city and others. The district court granted summary judgment to the city and county and denied the motion to stay. After the court denied various post-judgment motions, Johnson brought this appeal. We affirm.
The city enacted an ordinance in 1993 prohibiting discharges into the sanitary-sewer system. See Shorewood, Minn., City Code § 904.09 (1999). The ordinance requires that sump pumps that discharge into the system be disconnected, provides for inspections to confirm that there were no such sump pumps, and authorizes imposition of a quarterly surcharge for those who do not comply with the inspection requirement. Id. The surcharge was set at $100 per month.
Meanwhile, Johnson had sued the city in state court for a taking based on partial flooding of his land caused by a city-built pond. The city agreed to delay inspecting his property pending resolution of the lawsuit. By the end of 1995, the city had inspected all properties except Johnson’s. In February 1996, the city advised him that it could not delay inspection further and would begin imposing surcharges if he refused to allow the inspection. When he refused to comply, monthly surcharges began accruing as of March 1996.
In 1999, the city conducted a special-assessment hearing regarding Johnson’s unpaid surcharges. It adopted the special-assessment resolution and certified the special assessment of $3,653.50 for collection by Hennepin County on his property-tax bill in 2000. The city did the same for his surcharges in 2000 and 2001, amounting to $1,631.50 and $1,283.88, respectively. It certified these amounts to the county, which added them to Johnson’s property-tax bills for those years. Johnson paid these assessments.
Johnson commenced this action in December 2001, asserting numerous causes of action. The city and the county moved for summary judgment, while Johnson moved to stay proceedings pending resolution of a federal court action he had brought against the city and others. After laboriously reviewing Johnson’s claims as to both the city and the county, the district court granted summary judgment in their favor and denied Johnson’s motion for a stay. The court then denied various postjudgment motions by Johnson and this appeal followed.
D E C I S I O N
In an appeal from summary judgment, the appellate court will address whether there are genuine issues of material fact and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence will be viewed in the light most favorable to the party against whom the court granted summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
We first address Johnson’s arguments that the state court cannot assert concurrent jurisdiction over this action because his federal action against the city and others is pending and that the district court erred in failing to stay the proceedings and that this court should stay them. “Where two courts have concurrent jurisdiction, the first to acquire jurisdiction generally has priority to decide the case,” subject to exceptions. Green Tree Acceptance, Inc. v. Midwest Fed. Sav. & Loan Ass’n, 433 N.W.2d 140, 141-42 (Minn. App. 1988). A district court’s application of this rule will be reviewed under an abuse-of-discretion standard. Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 449 (Minn. App. 2001).
As to the county, the district court noted that it was not a party to the federal action. As to the city, the court stated that the federal claims relate to the partial taking of Johnson’s property, while this state action is based on the sump pump special assessments. Consequently the court concluded that there was no basis for staying the state court proceedings. The district court did not abuse its discretion in denying the motion to stay because there is no basis to stay the proceedings on appeal.
Johnson next argues that the city failed to comply with the procedures for appealing assessments because it did not furnish him with the documents required by Minn. Stat. § 429.081 (2002). He also contends that the district court failed to comply with certain provisions of Minn. Stat. § 429.081 regarding calendaring. It is not apparent that Johnson raised these issues below or that the district court decided them. This court generally will not address an issue not raised or decided by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Further, Johnson has not demonstrated any prejudice resulting from these alleged failures to follow the statute.
Johnson contends that the city wrongfully assessed and collected surcharges based on his failure to comply with the inspection provisions of the sanitary sewer ordinance. The district court concluded the evidence showed that the mayor was the only person with whom Johnson agreed to allow to inspect his property and who was authorized by the city to do so. But the mayor declined to perform the inspection. Johnson argues that this constitutes compliance. There is no genuine issue of fact as to whether the inspection occurred, and thus Johnson has not complied with the inspection provision as a matter of law.
Next, Johnson challenges his 1999 assessment. To appeal an assessment, the person aggrieved must serve notice on the mayor or clerk within 30 days of the adoption of the assessment. Minn. Stat. § 429.081. Statutory time limits for appeals must be strictly construed and proper filing is jurisdictional. Greer v. City of Eagan, 486 N.W.2d 470, 473 (Minn. App. 1992). Johnson’s challenges to his assessments were served on December 26, 2001. As the district court ruled, he filed a timely challenge only as to the 2001 special assessment, which was adopted on November 27, 2001. The challenge to the 1999 assessment was not timely. Consequently, the district court had no jurisdiction to consider it.
Johnson claims that the city breached certain contracts that it entered into with him relating to the inspection of his property. He challenges the district court decision that the contracts are unenforceable. If the facts are undisputed, the existence of a contract is a question of law. Estate of Peterson, 579 N.W.2d 488, 490 (Minn. App. 1998), review denied (Minn. Aug. 18, 1998). Consideration is an essential element of a contract. Id. The district court ruled that because there was no evidence of consideration, the alleged agreements are not enforceable contracts as a matter of law. The district court properly granted summary judgment to the city on Johnson’s contractual claims.
Johnson brought various tort claims against the city, and the district court granted summary judgment in favor of the city on all of those claims. First, Johnson’s nuisance claim was based on the construction of a ditch dam that occurred in 1984. The district court determined that the ditch dam was an improvement to real property and was barred by the two-year statute of limitations under Minn. Stat. § 541.051, subd. 1(a) (2002), applying to claims arising out of defective and unsafe conditions of improvements to real property. See Fagerlie v. City of Willmar, 435 N.W.2d 641, 644 (Minn. App. 1989) (holding that two-year statute of limitations applies to such claims).
Johnson argues that the ditch dam cannot constitute an “improvement to real property” because it violates various laws. The word “improvement” as used in the statute is defined as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Patton v. Yarrington, 472 N.W.2d 157, 160 (Minn. App. 1991) (quotations omitted), review denied (Minn. Aug. 29, 1991). Construction of a component of a drainage system is an improvement to real property. See Matter v. Nelson, 478 N.W.2d 211, 213 (Minn. App. 1991). Thus, the district court properly granted summary judgment on the ground that the nuisance claim was barred by the statute of limitations.
Next, we address Johnson’s claim that the district court erred in granting summary judgment on his defamation claim. On appeal, his claim is limited to an issue not addressed by the district court that will not be addressed here. Thiele, 425 N.W.2d at 582. In any event, he has not shown that his claim creates a genuine issue of material fact as to defamation. See Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn. 1994) (setting out elements for defamation claim).
Johnson also contends that the district court erred in granting summary judgment on his misrepresentation claim, again raising a tax issue not addressed by the district court. Thiele, 425 N.W.2d at 582. Further, Johnson has not shown that there are genuine issues of material fact as to the factors for a misrepresentation claim. See Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn. 1986) (setting out elements for a fraudulent-misrepresentation claim).
Johnson challenges the district court’s grant of summary judgment on his claim that the “grossly unreasonable, outrageous and illegal actions or inactions have caused an unreasonable amount of pain and suffering.” To prevail on a claim for intentional reckless infliction of emotional distress, the following elements must be shown: “(1) [T]he conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe.” Dornfeld v. Oberg, 503 N.W.2d 115, 117 (Minn. 1995) (quotation omitted). The “extreme and outrageous” conduct must be “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.” Id. (quotation omitted). The tort of negligent infliction of emotional distress may be shown “when physical symptoms arise after and because of emotional distress, if the plaintiff was actually exposed to physical harm as a result of the negligence of another.” Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn. 1996).
The district court ruled that Johnson did not provide any supporting evidence that the actions ever put him in physical danger, that he experienced any physical symptoms related to his emotional distress, or that the conduct that the city is alleged to have engaged in was extreme and outrageous. Consequently, it determined his claim for emotional distress failed as a matter of law. The district court’s ruling is not erroneous.
Johnson claims that the city wrongfully declined to issue any building permits to him unless he combined his home and farm parcels into one. As the district court ruled, when a city exercises its discretion when deciding to issue a building permit, as here, its decision is protected by statutory discretionary immunity. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786-87 (Minn. 1989). Johnson has not shown how the city’s decision is an abuse of their discretion.
Next, Johnson contends there is evidence that the city deprived him of constitutional protections and claims other constitutional flaws. The district court ruled that he did not plead a section 1983 claim, and that he has not shown other constitutional flaws as a matter of law. This decision is not erroneous.
Johnson also challenges the district court’s grant of summary judgment on his claims of fraud on the court under Minn. Stat. § 548.14 (2002). “[F]raud on the court must be an intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and opposing counsel,” making the result “grossly unfair.” Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989). Johnson has not shown that the district court erred in granting summary judgment on his fraud-on-the-court claim.
We now turn to the district court’s summary judgment in favor of the county. Johnson’s suit against the county raised issues related to the county treasurer’s actions in collecting special assessments under Minn. Stat. § 276.03 (2002). The district court granted summary judgment for the county on all of Johnson’s claims, ruling that the county was not a proper party to an appeal contesting a special assessment. Instead, as the district court held, the “exclusive means” for an aggrieved party to challenge a special assessment by the municipality is through the procedures set forth in Minn. Stat. § 429.081. “It is within the legislature’s prerogative to limit the formal participants to any legal proceeding.” Nash v. Wollan, 656 N.W.2d 585, 590 (Minn. App. 2003), review denied (Minn. Apr. 29, 2003). Here, the legislature provided only that the person aggrieved may appeal the local assessment decision to the district court, but it does not provide for making the county, which may ultimately collect the taxes pursuant to a certification, to be a party. Minn. Stat. § 429.081. Johnson, however, asserts that this ruling does not foreclose other legal theories for relief he has against the county. These other theories have no merit, and the district court properly granted summary judgment in favor of the county.
Finally, Johnson raises various other factors that he asserts were not considered by the district court. As we have stated, this court generally will consider only issues that were presented to and considered by the district court. Thiele, 425 N.W.2d at 582. Consequently, this court will not consider these issues now raised on appeal.
Johnson also asked this court to correct unspecified factual errors. “An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.” Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (quotation omitted). Because Johnson has not supported his argument and error is not obvious on mere inspection, he has waived this issue.