This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re the Matter of:


An Appeal of the Establishment of a Cartway Easement.


Filed July 5, 2005


Dietzen, Judge


Carlton County District Court

File No. C0-03-1452


Jeffrey A. Westermann-Schley, Newby, Lindgren & Westermann, Ltd., 1219 14th Street, P.O. Box 760, Cloquet, MN 55720 (for appellant Blackhoof Township)


John M. Gassert, Frank Yetka, Rudy, Gassert, Yetka & Pritchett, P.A., 123 Avenue C, Cloquet, MN 55720 (for respondents)


Charles Bengtson, 1503 Frost Avenue, Maplewood, MN 55109 (for respondent Cartway Petitioners)


            Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            In this cartway proceeding, appellant township challenges the order of the district court awarding respondent affected property owners their costs and disbursements under Minn. Stat. § 164.07, subd. 8 (2002), arguing that respondents are not the prevailing parties.  Because the district court properly applied the law and exercised its discretion, we affirm.



            In August 2001, landowners Michael Bengtson and Ronald Packert petitioned appellant Blackhoof Township to build a cartway connecting property they claimed was landlocked to County Road 103 in Carlton County.  At its regularly scheduled October 13, 2001, meeting, appellant determined that the petition would not be acted upon until completion of a survey and appraisal of affected landowners’ properties.  Appellant did not take further action until its meeting of October 15, 2003, when it adopted a resolution approving the cartway route.  Respondents, the affected landowners, claim that they did not receive notice of the meeting, and were specifically told by appellant’s officials that the cartway would not be discussed at the meeting.  On October 20, 2003, appellant filed an order approving the cartway route and awarding damages to respondents.  Specifically, it determined that the cartway affected tracts of land owned by Steven Schafter, Neil and Karen Nemmers, and Roy and Barbara Olson and thus awarded damages to each of them.  Schafter and the Nemmers both received $550 and the Olsons received $825.  Respondents challenged the public purpose and necessity of the cartway and the damage award by filing an appeal in the district court within the ten-day deadline following the issuance of the order.  See Minn. Stat. § 164.07, subd. 10 (2002) (establishing ten-day window to appeal cartway determination).

            In March 2004, appellant notified respondents that it had rescinded its prior order approving the cartway and awarding damages, but appellant did not also move to dismiss respondent’s appeal in the district court. The district court scheduled the case for trial on November 3, 2004.  In June 2004, appellant served respondents with significant discovery requests and respondents subsequently responded. 

On October 29, 2004, respondents served on appellant a motion in limine, requesting that the district court determine that appellant’s order rescinding its prior order and award obviated a trial, and that respondents be awarded their costs and disbursements as the prevailing parties under Minn. Stat. § 164.07, subd. 8 (2002).  Shortly before the scheduled trial, respondents served an affidavit itemizing their costs and disbursements for their district court appeal, which totaled $1,665.16.  Appellant opposed the district court’s consideration of respondents’ motion for costs and disbursements on the ground that respondents failed to provide proper notice of the costs and disbursements.  The district court disagreed and conducted a hearing in which both parties argued their positions on the costs and disbursements claimed by respondents.  After reviewing and adjusting respondents’ claimed costs and disbursements, the district court issued an order deeming respondents the prevailing parties and awarding them costs and disbursements of $1,445.16.  Appellant challenges the award.



            Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).   In an action over the establishment of a cartway, “[t]he prevailing party shall recover costs and disbursements as in other civil cases.”  Minn. Stat. § 164.07, subd. 8 (2002).  Costs are awarded to a civil defendant in the amount of $200 “[u]pon discontinuance or dismissal” of an action, as was listed in respondents’ itemized affidavit.  See Minn. Stat. § 549.02, subd. 1 (2002).  The statute does not distinguish between judgments of dismissal and those on the merits in its cost-awards provision.  Id.; see Reichert v. Union Fid. Life Ins. Co., 360 N.W.2d 664, 668 (Minn. App. 1985).

            Appellant first argues that the district court erred by awarding costs and disbursements because respondent’s appeal was moot.  An appeal should be dismissed as moot when, pending appeal, an event occurs that makes resolution on the merits unnecessary or an award of effective relief impossible.  Educ. Minn.-Greenway, Local 1330 v. Indep. Sch. Dist. No. 316, 673 N.W.2d 843, 848 (Minn. App. 2004), review denied (Minn. Apr. 20, 2004).  Appellant contends that respondent’s appeal to the district court is moot because appellant rescinded the cartway order and damage award.  But as of the date it was filed, October 30, 2003, the appeal was not moot.  The deadline for filing an appeal to challenge the public purpose and necessity of a cartway and suspend construction is ten days following the issuance of an order approving a cartway.  Minn. Stat. § 164.07, subd. 10 (2002).  Respondents were required to appeal the order to protect their interests.  Appellant then waited more than five months before rescinding the order.  Following the rescission in March 2004, the district court scheduled the case for trial, and appellant served respondents with extensive discovery requests.  Appellant’s actions were not consistent with a moot appeal but rather with a litigant preparing for trial.

Moreover, “[a]n appeal is not moot where the issue raised is capable of repetition yet evades review or where collateral consequences attach to the judgment.”  In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999).  Finding respondent’s appeal to the district court moot could have the added consequence of encouraging appellant or other public entities to rescind future cartway orders and damage awards after a party files an appeal and incurs necessary costs and disbursements.  Allowing appellant to repeat this process could be costly and time-consuming to future parties contesting cartway orders.  Thus, we conclude that because the order was not rescinded before the appeal was filed, the appeal was not moot.

Appellant next argues that this case lacks a prevailing party.  “In determining who qualifies as the prevailing party in an action, the general result should be considered, and inquiry made as to who has, in the view of the law, succeeded in the action.”  Luna v. Zeeb, 633 N.W.2d 540, 543 (Minn. App. 2001) (quoting Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn. 1998)).  The district court has discretion in both determining who is the prevailing party and awarding costs to that party.  Reichert, 360 N.W.2d at 668.  The general rule is that “where appellant or plaintiff in error dismisses an appeal or writ of error, he must pay costs of appeal.”  Pub. Bldg. Serv. & Hosp. & Institutional Employees Union Local 113, AFL-CIO v. Abbott Hosp., 270 Minn. 326, 327, 133 N.W.2d 826, 827 (1965) (quotation omitted).

            While the general rule is that when a plaintiff dismisses an action, the defendant is the prevailing party and entitled to costs, here appellant-defendant township dismissed the action.  Normally, a defendant cannot dismiss an action.  Appellant-defendant township was able to argue that it could dismiss the action because it was also the entity that issued and vacated the order before respondents appealed.  While there is no Minnesota caselaw directly addressing the existence of a prevailing party in this situation,[1] we conclude that respondents are the prevailing parties because they succeeded in the action by prompting appellant to rescind the order and award after respondents appealed.  See Luna, 633 N.W.2d at 543.

Appellant next contends that the district court could not award costs and disbursements to respondents because they did not make the appropriate procedural requests.  Specifically, appellant argues that the district court failed to follow Minn. R. Civ. P. 54.04, which states that “[c]osts and disbursements may be taxed by the court administrator on two days’ notice, and inserted in the judgment.”  Appellant maintains that respondents failed to provide notice of the request for costs and disbursements under rule 54.04.  But respondents gave notice of their request for costs and disbursements with their motion in limine and accompanying memorandum filed October 29, 2004, prior to the November 3, 2004, trial date.  We conclude that this notice was sufficient.

            Because the appeal was not moot and the district court properly applied the law and exercised its discretion by deeming respondents the prevailing parties and awarding costs and disbursements, we affirm.


[1] The South Dakota Supreme Court, however, has dealt with a similar issue.  See City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D. 1979) (holding that condemnee was prevailing party and entitled to costs and disbursements when jury awarded condemnee damages even though condemning authority subsequently abandoned condemnation action).