This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Matter of:
An Appeal of the Establishment of a Cartway Easement.
Filed July 5, 2005
Carlton County District Court
File No. C0-03-1452
Jeffrey A. Westermann-Schley, Newby, Lindgren &
John M. Gassert, Frank Yetka, Rudy, Gassert, Yetka & Pritchett, P.A., 123 Avenue C, Cloquet, MN 55720 (for respondents)
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
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.
August 2001, landowners Michael Bengtson and Ronald Packert petitioned
In March 2004, appellant notified respondents that it had rescinded its prior order approving the cartway and awarding damages, but appellant did not also move to dismiss respondent’s appeal in the district court.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.
D E C I S I O N
construction is a question of law, which this court reviews de novo.
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 (
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 (
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 (
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
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.
The South Dakota Supreme Court, however, has dealt with a similar issue.