This opinion will be unpublished and

may not be cited except as provided by

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






Jerome Clark,


Yellow Medicine County Board of Commissioners, et al.,
Michael Knutson,


Filed August 22, 2006


Stoneburner, Judge


Yellow Medicine 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)


            Considered 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 Medicine County (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.[1]  Larson asserted that the proposed feedlot is situated “within about 600 feet of a public or private drainage ditch.”[2]  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;[3] and (3) Clark’s action is barred by collateral estoppel.  Clark 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.



            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. 30, 1999).

            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).

            Clark 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.”[4]  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 current action. 

            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 admissible. 

            Furthermore, we agree with the district court that even if it had considered the unauthenticated watershed district permits,[5] 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.”[6]  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.[7]  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.


[1] The county’s animal feedlot ordinance § VII. subd. 3(A) requires a 300-foot setback from all public and private drainage ditches, but subdivision 3(B) provides that “[a]ny feedlot shall have a minimum setback of 2’ per animal unit or compliance with Section III A, whichever is greater.”

[2] Neither Larson’s complaint nor the judgment entered in his lawsuit refers to a specific portion of the natural feature, but the parties agree that Larson’s focus had been on the natural feature as it existed on the Ferguson property, south of Knutson’s property.

[3] Counsel for the county candidly conceded that this argument is without merit and is not asserted on appeal.

[4] Larson’s letter states that on July 23, 2003, Larson “along with [Clark as] a witness hand carried a letter to [the county attorney] and officially informed [the county attorney] that [the] county was in violation of [its] own ordinance regarding the drainage-ditch setbacks.”  Larson filed his complaint with the district court the next day.

[5] Clark relies on Minn. Stat. § 103E.101, subd. 6 (2004), which provides, in part, that records of proceedings under chapter 103E and orders made by the drainage authority “is prima facie evidence of the facts stated in the record or order and of the regularity of all proceedings prior to the making of the order” to assert that the watershed district permit is self-authenticating.  But Clark relies only on his bare assertion that the permit comes under the provisions of section 103E.101, subd. 6.  The district court did not err in concluding that the permit, which contains handwritten additions, is unauthenticated.

[6] The county ordinance does not define “drainage ditch.”  Both parties and the district court relied on Minnesota’s comprehensive drainage code for the definition of a drainage ditch.

[7] Clark does not assert that the waterway is part of a county, judicial, or authorized watershed ditch system, but he argues, based on handwritten notes on the permit documents, that Mahlum’s work involved other landowners and created a drainage system.  This assertion is not supported on the face of the documents.