This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Minch Family Limited Partnership through its
general Partner, A. R. Minch and A. R. Minch, individually,
Buffalo-Red River Watershed District, et al.,
Filed January 16, 2007
Affirmed as modified
Clay County District Court
File No. C6-05-1688
Roger J. Minch, Beverley L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, ND 58108 (for appellants)
Tami L. Norgard, Robin A. Schmidt, Vogel Law Firm, 218 NP Avenue, P.O. Box 1389, Fargo, ND 58107 (for respondents)
Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
On appeal from the district court’s judgment of dismissal on summary judgment and award of costs and disbursements to respondents Buffalo-Red River Watershed District (BRRWD) and its officers and managers Roger Ellefson, Curtis Nelson, Gerald L. VanAmburg, John E. Hanson, and E. Robert Olson, appellants Minch Family Limited Partnership and A. R. Minch contend that the district court erred by determining that the BRRWD’s enforcement powers are discretionary and that the watershed-district managers’ actions do not constitute intentional infliction of emotional distress and that the district court abused its discretion by awarding respondents their costs and disbursements. We affirm as modified.
A. R. Minch bought approximately 560 acres of land, including the south half of
Section 28 in
Norby built the dike without obtaining a permit from the BRRWD, which must approve improvements that affect drainage. Norby filed a permit application after completion; and the BRRWD approved the permit, although the BRRWD’s rules did not address approval of drainage projects after the fact. Norby continued to increase the height of his dike without permits from the BRRWD, and the dike gradually became high enough in 2000 or 2001 to impact drainage from appellants’ land. After the dike washed out in April 2001, Norby rebuilt it despite the BRRWD’s warning that he first needed a permit. Appellants assert that they suffered a 100% crop loss on 65 acres in Section 28 in 2004.
this action, Minch sued the BRRWD and its officers, individually, for their failure
to enforce the watershed-district rules against Norby and for the emotional
The district court initially granted respondents’ motion in part and denied it in part, dismissing all of appellants’ claims except for the claim for damages resulting from the Section 34 ditch cleaning. The district court stated that genuine issues of material fact existed as to that claim. Two weeks later, the district court, on its own initiative, corrected its prior order and granted summary judgment to respondents on all issues. In so doing, the district court noted that the ditch-cleaning claim was not properly before it, given that the ditch cleaning did not take place until after the amended complaint in this matter was filed and because that issue had already been litigated in proceedings before a different district court judge. The district court also awarded respondents their costs and disbursements. Appellants’ motion for reconsideration was denied, as was respondents’ request for attorney fees. This appeal follows.
an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of
material fact and (2) whether the [district] court[ ] erred in [its]
application of the law.” State by
Cooper v. French, 460 N.W.2d 2, 4 (
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo, 504 N.W.2d
758, 761 (
genuine issue for trial exists “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69
(Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356
(1986)). “[T]he party resisting summary
judgment must do more than rest on mere averments.”
contend that the permit issued to Norby after he constructed his dike in 1979
was illegal because the BRRWD failed to enforce its rules. The district court based its summary-judgment
decision on the authority of a watershed district as set forth in Minnesota
Statutes chapters 103D and 103E. The
district court determined that the watershed district’s enforcement powers are
discretionary, not mandatory, based on the statutory provision that an action
by a watershed district “may be enforced by criminal prosecution, injunction,
action to compel performance, restoration, abatement, and other appropriate action.”
The BRRWD has established rules for granting permits in a manner
not intended to delay or inhibit development. Rather, the permits are needed so that the Managers are kept informed of planned projects, can advise and in some cases provide assistance, and to insure that developments of the natural resources are orderly and in accordance with the Overall Plan for the District.
Buffalo-Red River Watershed Dist.
R. § 4. But the rules also state that
“No works or use requiring a permit shall be commenced prior to the issuance of
contend that the statute requires the BRRWD to enforce its rules and allows for
discretion only as to the method of enforcement. We disagree.
The district court’s interpretation of Minn. Stat. § 103D.545, subd. 2, is
consistent with the permissive quality of watershed-district powers. See
In addition, while it is not essential to this decision, we note that the BRRWD asserts that it is in the process of enforcing its rules against Norby. At a BRRWD meeting at which appellants were represented, their concerns about enforcement were addressed. Respondent BRRWD officer and manager “VanAmburg agreed that Norby’s illegal diking activities have to be addressed.” The BRRWD has mailed several warnings to Norby. As early as 2001, the BRRWD responded to complaints by warning Norby that he needed approved permits to undertake work on the dike and that Norby’s repairs to his dike were illegal because he had not obtained a permit. Other letters indicated Norby’s failure to acknowledge the BRRWD’s rules or to cooperate. On October 7, 2002, the BRRWD denied a permit to Norby “because the previous work you installed in this area several years ago is illegal and in violation of our Rules. . . . Granting you a permit at this time to replace a culvert would be condoning your illegal activities,” which blocks a natural waterway and encroaches on rights-of-way.
The district court
granted summary judgment to respondents on this claim on the ground that the
watershed-district managers’ actions were taken “within the scope of their
positions when they voted on issues concerning
Summary judgment is
proper for an intentional-infliction-of-emotional-distress claim if a party
“does not meet the high standard of proof needed.” Strauss v. Thorne, 490 N.W.2d 908, 913
(Minn. App. 1992), review denied (Minn. Dec. 15, 1992). In Strauss, the respondent was a
physician who wrote on a patient’s chart that he was concerned about possible child
abuse by the patient’s spouse, the appellant.
In another case in which
the district court dismissed an intentional-infliction-of-emotional-distress claim
on summary judgment, a dispute over the location of a houseboat resulted in
respondent neighbors disconnecting and removing the electric meter and cutting phone
lines for appellants’ houseboat, spraying obscenities on appellants’ garage on
the day of a family wedding, puncturing appellants’ automobile tires, regularly
yelling obscenities at them, and impeding appellants’ use of a common access
road. Jensen v. Walsh, 609 N.W.2d
251, 252-53 (Minn. App. 2000), rev’d on other grounds, 623 N.W.2d 247 (
assert that the district court abused its discretion by awarding costs and
disbursements to respondents because appellants were entitled to a hearing on
the matter and because respondents’ motion lacked sufficient specificity. Granting disbursements is within the district
court’s discretion, reversible only upon abuse of discretion. Green-Glo Turf Farms, Inc. v. State,
347 N.W.2d 491, 495 (
and disbursements shall be allowed as provided by statute.”
a hearing may not be required, costs and disbursements must be reasonable and
necessary. Stinson v. Clark Equip.
Co., 473 N.W.2d 333, 338 (
respondents’ counsel submitted an affidavit requesting $200 in statutory costs. See Minn. Stat § 549.02, subd. 1 (2006)
(allowing $200 to defendant upon dismissal or judgment in defendant’s favor on
the merits). In the same affidavit, respondents
requested disbursements totaling $6,698.90, including: deposition and videographer
costs of $5,974.85; filing fees of $385; attorney mileage and meal
reimbursements of $208.74 associated with depositions; copying costs of
$109.80; and Westlaw charges of $20.51. Respondents
also requested $47,776.25 in attorney fees under
district court granted respondents’ motion for costs and disbursements based on
The focus of our review is reasonableness. Here, respondents’ counsel outlined their costs in a detailed affidavit to the district court, on which the district court relied. Appellants have not challenged the accuracy of the amounts claimed. And the affidavit submitted in support of the motion for costs indicates that the majority of the costs was incurred in the course of taking depositions of individuals whose depositions appellants noticed.
rule of procedure governing costs and disbursements states that they “shall be
allowed as provided by statute.”
[i]n any civil action arising from or related to a rule, order, or stipulation agreement made or a permit issued or denied by the managers under this chapter, the court may award the prevailing party reasonable attorney fees and costs.
This case arises out of
Affirmed as modified.