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be unpublished and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
Yellow Medicine County Board of Commissioners, et al.,
August 22, 2006
County District Court
File No. 87C505000073
Dennis H. Simpson, Quarnstrom & Doering, P.A., 109 South Fourth Street, Marshall, MN 56258 (for appellant)
Scott T. Anderson, Jennifer J. Kruckeberg, Ratwik, Roszak
& Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South,
Minneapolis, MN 55402-2445 (for respondents)
and decided by Stoneburner,
Presiding Judge; Toussaint,
Chief Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges summary
judgment granted to respondents dismissing appellant’s petition for a writ of
mandamus to compel respondent Yellow Medicine County to rescind permits issued
to respondent Michael Knutson for construction of a feedlot, which appellant
asserts violated the county’s requirements for a setback from a drainage ditch. Because the district court did not err in
granting summary judgment to respondents, we affirm.
Respondent Michael Knutson
petitioned respondent Yellow
(the county) for a conditional-use permit and other permits necessary for construction
of a 720-unit hog feedlot in the county.
Prior to issuance of the permits, county resident Arthur Larson objected
to the proposed feedlot site on the ground that it would violate the county
ordinance’s requirements for a setback from a drainage ditch.
County officials reviewed the
records, made a site visit, and concluded that there is no public or private
drainage ditch in the area of the proposed feedlot. The natural feature that Larson considered to
be a ditch was characterized by the county’s zoning office administrative assistant
and water plan coordinator to be a “field break, swale, or natural ravine.” This natural feature runs across property
owned by Gordon Ferguson, located south of Knutson’s property and continues east,
under a road and across Russell Mahlum’s property. Knutson’s proposed feedlot is located
approximately 708 feet from the natural feature on Mahlum’s property.
Because the natural feature was not
considered to be a drainage ditch by the county, the setbacks required in the
ordinance were not found to be applicable, and, after appropriate hearings, the
county granted the permits sought by Knutson allowing him to construct a
feedlot for up to 1,000 animal units.
Shortly thereafter, Larson initiated
a taxpayer mandamus action to compel the county to rescind the permits on the
ground that the county had violated the setback requirements contained in the
ordinance, which, in this instance, requires a setback of two feet per animal
unit. Larson asserted that the proposed feedlot is
situated “within about 600 feet of a public or private drainage ditch.” On cross-motions for summary judgment, the
district court determined, as a matter of law, that the natural feature
referred to by Larson is a natural, unimproved waterway, not a drainage ditch;
therefore, the setback provision does not apply. The district court granted summary judgment
to respondents, dismissing Larson’s complaint.
Larson did not appeal.
Several months later, appellant
Jerome Clark initiated this taxpayer mandamus action, seeking rescission of the
permits granted to Knutson. Clark attached to his petition a copy of a watershed
district permit issued to Mahlum in 1985.
Clark asserted that the permit was for
the “tiling, widening and deepening of the [natural feature]” and that it constituted
“conclusive proof that the [natural feature] has been converted to a drainage
ditch,” citing Minn. Stat. § 103E.005, subd. 12 (2004). Clark has identified
Larson as his “consultant” and submitted to the district court a six-page
letter from Larson setting out, among other things, Larson’s opinion that the
permit for work on the waterway on Mahlum’s property proves that the waterway
was converted into a ditch such that the permits were issued in violation of
the setback requirements. Larson’s
signature on the letter is notarized.
Respondents moved for summary
judgment, arguing that (1) no material fact issues were disputed, and, as a
matter of law, the waterway is not a ditch; (2) the county has always
interpreted the ordinance only to require the 300-foot setback, not the more
restrictive “two feet per animal unit” requirement;
and (3) Clark’s action is barred by collateral
did not submit any affidavits in response to the county’s motion for summary
judgment, but asked the district court to consider Larson’s notarized letter. The district court rejected Clark’s request
that Larson’s unsworn letter be considered for purposes of the summary judgment
motion, noting that the letter does not indicate that Larson’s letter was
written under oath; that the letter contains many statements made without
personal knowledge; and that the statements in Larson’s letter “constitute his opinions,
conclusory facts, unsupported interpretations of unauthenticated documents and
argument.” The district court concluded
that Clark had failed to present anything
other than the averments in his pleadings to counter the summary judgment
motion and therefore failed to establish any genuine issues of material fact to
preclude summary judgment. Noting that the
district court in Larson’s suit found, as a matter of law, that the natural
feature is not a ditch, the district court concluded that collateral estoppel
bars Clark’s action. The district court further concluded that the
issue presented by Clark is identical with the issue presented by Larson and
that Larson and Clark were in privity because their status as taxpayers is identical,
Clark supported Larson’s prior action, and Clark is “merely acting as Mr. Larson’s
alter ego” in the current litigation. Additionally,
the district court concluded that even if it were to consider the work permit
for Mahlum’s property, Clark had failed to
raise a material fact issue that such work had transformed the natural feature
into a ditch. This appeal followed.
E C I S I O N
Appellant asserts that the district
court erred in applying the doctrine of collateral estoppel to his mandamus
action, arguing that the claim he asserts is not identical with the claim
asserted by Larson and that he is not in privity with Larson.
“Minnesota law recognizes two aspects of the
doctrine of res judicata: (1) merger or bar, and (2) collateral estoppel.” Application
of Hofstad,376 N.W.2d 698, 700 (Minn. App. 1985). Merger precludes a subsequent suit on the
same cause of action both as to matters actually litigated and as to other
claims or defenses that might have been litigated. Id. Collateral estoppel bars the relitigation of issues
actually “litigated, determined by, and essential to a previous judgment.” Id. “Whether res judicata applies is a question
of law, which we review de novo.” SMA Services, Inc. v. Wever, 632 N.W.2d
770, 773 (Minn.
App. 2001). “In determining the applicability
of res judicata, the court considers whether (1) there was a final judgment on
the merits, (2) a second suit involves the same cause of action, and (3) the
parties to both were identical or were in privity with identical parties.” Id. No genuine issues of material fact remain for
trial when collateral estoppel conclusively precludes relitigation of an
issue. State Farm Mut. Auto Ins. Co. v. Spartz, 588 N.W.2d 173, 175 (Minn.
App. 1999), review denied (Minn. Mar.
Clearly Larson was precluded by res
judicata from bringing the current action because he could have argued in his
first action that the work done by Mahlum converted the waterway into a
drainage ditch, but failed to do so. If
Clark and Larson are in privity, res judicata bars Clark’s
claim whether the claim is considered identical with Larson’s or is a claim
that Larson could have asserted in his action.
The claims of both Larson and Clark
are that (1) the natural feature that runs across the Ferguson and Mahlum properties is a drainage
ditch and (2) the county issued permits for Knutson’s proposed feedlot in
violation of the county ordinance’s requirement regarding the distance that a
feedlot must be setback from a drainage ditch.
Larson’s claim focused on the portion of the natural feature to the
south of Knutson’s property. Clark’s claim focuses on the portion of the same natural
feature to the east of Knutson’s property.
We agree with the district court that the change of focus from the south
to the east does not make Clark’s claim
distinct from Larson’s claim: both claim that the natural feature is a drainage
ditch. We conclude that the district
court did not err by holding that the claims are identical. We therefore turn to the issue of privity.
“The concept of ‘privity’ has not
been strictly defined, but it expresses the idea that certain non-parties may
be so connected with the litigation that the judgment should also determine
their interests.” Brunsoman v. Seltz, 414 N.W.2d 547, 550 (Minn. App. 1987). “The basic requirement is that the estopped
party’s interests have been sufficiently represented in the first action so
that the application of collateral estoppel is not inequitable.” Id. “Those
in privity would include (a) those who control an action although not parties
to it, (b) those whose interests are represented by a party to the action, and (c)
successors in interest to those having derivative claims.” Denzer
v. Frisch,430 N.W.2d 471, 473 (Minn. App. 1988). “[T]he circumstances of each case must be
examined to determine the nature and extent of the relationship between a
formal party and the person alleged to have been in privity with that
party.” Crossman v. Lockwood, 713 N.W.2d 58, 62 (Minn. App. 2006).
and Larson each sued based on his standing as a taxpayer. As taxpayers, their interests are identical: compel
the county to comply with its ordinance.
As the district court correctly noted, Larson’s letter “contains
Plaintiff Clark’s sole basis for opposing the present summary judgment action
[and] appears to demonstrate that as early as July 23, 2003, Mr. Larson and Mr.
Clark were acting in concert in opposing this conditional use permit.” Larson and Clark are represented by the same
attorney. The fact that Larson’s opinion
that the natural feature is a drainage ditch is Clark’s primary basis for this
lawsuit supports the district court’s conclusions that Clark’s interests were
represented in Larson’s action, Clark is
Larson’s alter ego in this action, and Larson is exercising control in the
The United States Supreme Court has
stated that identity of parties is not a mere matter of form, but of substance,
and a court will look through matters of form to those of substance in
determining a particular case. Chicago, R.I. & P.R. Co. v. Schendel,
270 U.S. 611, 620, 46 S. Ct. 420, 424 (1926).
We conclude that the undisputed facts establish that Clark and Larson
are in privity for purposes of the application of the doctrine of res judicata
and that the district court did not err in concluding that Clark’s
action is barred by the doctrine, entitling respondents to summary judgment.
Because we conclude that Clark’s action is barred by res judicata, we do not need
to reach the alternative grounds asserted by the district court for granting
summary judgment. But we note that the
district court did not err in rejecting consideration of Larson’s letter in
connection with the summary judgment motion.
The letter does not meet the requirements of Minn. R. Civ. P. 56.05. The letter, in addition to not being made
under oath, fails to demonstrate that Larson is competent to testify to many of
the matters asserted in the letter, and most of what he asserts would not be
Furthermore, we agree with the
district court that even if it had considered the unauthenticated watershed
district permits, Clark failed to create a genuine issue of material fact
about whether the natural feature is a drainage ditch. Minn. Stat. § 103E.005, subd. 12, defines
a drainage system to include “the improvement of a natural waterway used in the
construction of a drainage system and any part of a flood control plan proposed
by the Untied States or its agencies in the drainage
system.” The district court correctly concluded that
the permit does not provide evidence that any improvement in the natural
feature permitted was an improvement “used in the construction of a drainage
system and any part of a flood control plan proposed by the United States or
its agencies in the drainage system” as required by the statute to convert a
natural waterway into a drainage ditch. Minn. Stat. § 103E.005, subd. 12; see also Brandt v. Renville
County, 241 Minn. 180, 183, 62 N.W.2d 816, 819 (1954)
(stating that a natural waterway becomes part of a ditch or drainage system
when it is improved and included in, or improved and utilized in, the
construction of a drainage system). Therefore,
even if res judicata did not bar Clark’s petition for a writ of mandamus,
summary judgment for respondents was appropriate because Clark
failed to create a genuine fact issue that the natural feature became a ditch
due to work done under the 1985 watershed permit.