This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-97-1851

In the Matter of Condemnation by Petitioner,

the Minneapolis Community Development Agency (MCDA),

of Certain Lands in the City of Minneapolis Situated

in the Jordan NRP Neighborhood

Minneapolis Community Development Agency, petitioner,

Respondent,

vs.

Hazel S. Day, et al.,

Respondents Below,

Samuel E. Czaplewski,

Appellant.

Filed July 7, 1998

Affirmed

Peterson, Judge

Hennepin County District Court

File No. CD2389

Jane E. Brooks, Brooks Law Office, 1080 West County Road E, Shoreview, MN 55126 (for appellant)

Martha A. Holton Dimick, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Samuel Czaplewski appeals from a district court judgment dismissing with prejudice his appeal from a commissioners' award in a condemnation proceeding. We affirm.

FACTS

In November 1995, respondent Minneapolis Community Development Agency (MCDA) filed in the district court a condemnation petition and quick-take motion for the transfer of title of property located in Minneapolis. Appellant Samuel Czaplewski was the property owner.

MCDA hired Metro Legal Services, Inc., to serve Czaplewski with notice of the condemnation proceeding. Scott Gray, an agent for Metro Legal Services, was unable to obtain Czaplewski's current residence address but spoke to him by telephone. Czaplewski told Gray that he was aware of the condemnation proceeding and intended to avoid personal service to stall the proceeding. On December 18, 1995, the district court issued an order allowing MCDA to serve Czaplewski by publication. Notice of the condemnation proceeding was published in Finance and Commerce on December 19 and 26, 1995, and on January 2, 1996.

On January 30, 1996, the district court conducted a hearing to determine the necessity of the taking. Czaplewski appeared at the hearing. He stated that he would like to rehabilitate the structure on the property if he were awarded a grant to do so and argued that the $5,000 MCDA had offered him for the property was an unreasonably low amount. Czaplewski did not otherwise oppose the taking but did request that the quick-take date be delayed until April 1, 1996.

On February 13, 1996, the district court issued an order granting MCDA's condemnation petition and quick-take motion (the quick-take date was delayed until April 1) and appointing three commissioners to determine the amount of damages. During May and June 1996, the commissioners conducted six valuation hearings. Both parties presented evidence regarding the property's market value. The commissioners awarded Czaplewski $18,366.67 in damages.

In September 1996, Czaplewski appealed to the district court from the commissioners' award. He requested increased damages and also alleged that the taking violated his right to equal protection. MCDA filed a cross-appeal, requesting that the damage award be reduced to $1.00.

Czaplewski's appeal was scheduled for a jury trial beginning June 3, 1997. On May 29, 1997, MCDA filed a motion in limine to exclude evidence regarding Czaplewski's equal protection claim. MCDA also sought to exclude evidence that it contended was not relevant to property value at the time of taking.

On June 3, 1997, before beginning the trial, the district court heard arguments on the motion in limine. Claiming that he had an inadequate opportunity to respond to MCDA's motion in limine and that he had retained an attorney to represent him, Czaplewski requested a 30-day continuance. When the district court contacted the attorney named by Czaplewski, the attorney denied representing Czaplewski. Moreover, the attorney's license to practice law had been suspended several years earlier. The district court denied Czaplewski's request for a continuance, awarded him $500 for appraiser fees, granted MCDA's motion in limine in its entirety, and limited the issue for trial to the value of the property on the date of taking. The court dismissed Czaplewski's other claims.

After deciding the preliminary motions, the court recessed until 1:00 p.m. Czaplewski failed to appear when court reconvened at 1:00 p.m. As a sanction for Czaplewski's failure to appear on time and for his lack of veracity before the court, the district court dismissed his appeal with prejudice. MCDA waived its right to a jury trial on its cross-appeal. The district court dismissed the jury and directed MCDA to appear for trial the following morning. Czaplewski appeared sometime after the court adjourned at 1:45 p.m.

When the court convened on June 4, 1997, Czaplewski requested that his appeal be reinstated. The court agreed to reinstate the appeal on the condition that Czaplewski waive his right to a jury trial. Czaplewski refused to waive his right to a jury trial, and the court declined to reinstate his appeal. MCDA's cross-appeal was tried to the court.

The district court reduced the commissioners' damage award to $1.00. Also, upon MCDA's motion for reconsideration, the court denied Czaplewski appraiser fees. The court cited Czaplewski's fault in causing unnecessary delays in the condemnation proceedings as a reason for the denial.

D E C I S I O N

1. MCDA filed a motion to strike the argument in Czaplewski's reply brief that he was unable to represent himself at trial because of an alleged disability. MCDA contends that Czaplewski did not make the argument before the district court or in his appellate brief. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (this court will generally not consider matters not presented to and decided by the district court); Minn. R. App. P. 128.02, subd. 3 (reply brief must be confined to new matters raised in respondent's brief); see also McIntire v. State, 458 N.W.2d 716, 717 n.2 (Minn. App. 1990) (arguments not made in brief are waived and "cannot be reviewed by addressing them in the reply brief"), review denied (Minn. Sept. 28, 1990), cert. denied, 498 U.S. 1090, 111 S. Ct. 970 (1991).

Czaplewski, however, did raise the issue of his disability before the district court. During trial, he told the district court that he needed assistance due to his disability. The district court found that Czaplewski was attempting to confuse and delay the court and that his alleged disability did not prevent Czaplewski from participating in the court proceeding. Czaplewski also addressed his disability in his appellate brief. Because the issue of Czaplewski's disability was presented to and decided by the district court and was addressed in Czaplewski's appellate brief, we deny MCDA's motion to strike Czaplewski's argument from his reply brief.

MCDA also moved to strike specified documents from the appendix to Czaplewski's reply brief. "The papers filed in the [district] court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases." Minn. R. Civ. App. P. 110.01. The documents that MCDA moved to strike were filed in the district court. We, therefore, deny MCDA's motion to strike the documents. However, because the documents were not filed in the district court until after the decision on appeal was filed, we decline to consider those documents or any references to information contained in them. See In re Nelson, 495 N.W.2d 200, 202, 204 (Minn. 1993) (court of appeals erred in considering letter party sent to district court one month after the district court's decision).

2. Czaplewski argues that the district court erred in limiting the scope of review on appeal from the commissioners' award to the issue of damages. We disagree. When reviewing a commissioners' award in an eminent domain proceeding, the district court's jurisdiction is appellate, and the only issue appropriate for review is the amount of damages necessary to compensate the landowner. City of Mankato v. Hilgers, 313 N.W.2d 610, 612 (Minn. 1981); see also Alexandria Lake Area Serv. Region v. Johnson, 295 N.W.2d 588, 590 (Minn. 1980) (explaining statutory scheme for eminent domain proceeding).

Objections to the taking must be asserted at the hearing before the district court to determine the necessity of the taking. State, by Attorney Gen. v. Wren Inc., 275 Minn. 259, 262-63, 146 N.W.2d 547, 550 (Minn. 1966). At the hearing to determine the necessity of the taking, Czaplewski stated that he would like to rehabilitate his property if he was awarded a grant to do so, but did not present evidence showing that such rehabilitation was feasible. Czaplewski's excuse for failing to present evidence challenging the necessity of the taking at the hearing to determine the necessity for the taking is that he did not receive notice of the condemnation hearing until the day before the hearing. Minn. Stat. 117.055 (1996) requires that a property owner be served with notice of the condemnation hearing at least 20 days before the hearing.

A property owner whose place of residence is unknown to petitioner can be served by publication. Minn. Stat. 117.055; see also Minn. R. Civ. P. 4.04(a)(1) (service by publication shall be sufficient to confer jurisdiction when the defendant conceals himself with the intent to avoid service). Gray was unable to obtain Czaplewski's current residence address. When Gray telephoned Czaplewski, Czaplewski said he was aware of the condemnation proceeding and intended to avoid personal service to stall the proceeding. Based on Gray's affidavit, the district court allowed MCDA to serve Czaplewski by publication. Notice of the condemnation hearing was published in Finance & Commerce on three occasions that were all more than 20 days before the condemnation hearing. Czaplewski was timely served with notice of the condemnation proceeding.

Objections to the commissioners' qualifications may not be raised for the first time on appeal from the commissioners' award absent a showing that the failure to discover the alleged disqualification sooner did not result from lack of diligence. State ex rel. McMullen v. District Court, 50 Minn. 14, 18-19, 52 N.W. 222, 223-24 (1892). The record does not show that Czaplewski objected to the commissioners' qualifications prior to the appeal from the commissioners' award, and he made no showing that any failure to discover the alleged disqualifications sooner did not result from lack of diligence. The district court did not err in limiting the scope of review on appeal from the commissioners' award to the issue of damages.

3. Czaplewski argues that the district court erred in denying his request for a continuance. The district court's denial of a continuance will not be reversed on appeal absent an abuse of discretion. In re Welfare of D.N., 523 N.W.2d 11, 12 (Minn. App. 1994), review denied (Minn. Nov. 29, 1994).

On the scheduled trial date, Czaplewski requested a continuance to obtain an attorney and cited his disability as a reason for granting him a continuance. But when Czaplewski told the district court that he needed assistance at trial due to his disability, the court found that Czaplewski was attempting to confuse and delay the court and that his alleged disability did not prevent him from participating in the court proceeding. The evidence supports the district court's finding.

Czaplewski does not offer any other excuse for his failure to obtain an attorney during the almost nine months between when he filed his appeal and the scheduled trial date. Moreover, on the scheduled trial date, Czaplewski represented to the court that he had retained an attorney. When the court contacted the attorney, the attorney denied representing Czaplewski, and the court learned that the attorney's license had been suspended several years earlier. Under these circumstances, the district court's denial of Czaplewski's request for a continuance to obtain an attorney was not an abuse of discretion.

Czaplewski also contends that he should have been granted a continuance because he had insufficient time to respond to MCDA's motion in limine. But Czaplewski does not explain how he would have responded to the motion had he been granted a continuance. The appellant bears the burden of proving that the district court erred and that the error was prejudicial. Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993).

4. Czaplewski argues that the district court erred in dismissing his appeal and denying him appraiser fees. The district court may dismiss an action or claim for failure to comply with the court's order. Minn. R. Civ. P. 41.02(a). The district court's dismissal of an action pursuant to Minn. R. Civ. P. 41.02(a) will not be reversed absent an abuse of discretion. Chahla v. City of St. Paul, 507 N.W.2d 29, 32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).

The district court dismissed Czaplewski's appeal and denied him appraiser fees as a sanction for his failure to comply with the court's order to appear in court at 1:00 p.m. on June 3, 1997. Czaplewski does not offer any excuse for his failure to appear. The district court also cited Czaplewski's lack of truthfulness before the court and his actions to delay the condemnation proceeding as factors supporting the dismissal and the denial of appraiser fees.

On June 4, 1997, the district court agreed to reinstate Czaplewski's appeal if he would waive a jury trial, but Czaplewski refused to do so. Due to Czaplewski's failure to appear in court on time the previous afternoon, the district court had ordered the jury dismissed and directed MCDA to appear for trial the following morning. MCDA appeared with its expert witnesses and, as the district court found, would have been prejudiced by having to pay them while a jury was selected. Czaplewski asserts that MCDA could have been compensated for delay by an award of attorney fees and costs, but the record does not show that Czaplewski had the ability to pay those expenses. Because the absence of a jury and the presence of MCDA's witnesses resulted from Czaplewski's misconduct, considered in light of Czaplewski's previous efforts to delay the proceeding and his lack of truthfulness before the district court, the district court acted within its discretion in conditioning reinstatement of Czaplewski's appeal on Czaplewski waiving a jury trial. The district court did not abuse its discretion in dismissing Czaplewski's appeal and denying him appraiser fees.

5. The question of whether to admit or exclude evidence rests within the broad discretion of the [district court] and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.

Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citations omitted).

Czaplewski argues that the district court erred by denying him the opportunity

to testify as to the vandalism which occurred to the property subsequent to the taking, as a result of the taking, and prior to the time that any appraisals were made of the property.

In a condemnation proceeding, damages are determined as of the date of the taking. State, by Spannaus v. Heimer, 393 N.W.2d 687, 693 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986). Czaplewski does not specify what evidence regarding vandalism the district court improperly ruled inadmissible, how the alleged vandalism affected the property's value, or that MCDA's appraisers failed to account for vandalism that occurred after the date of the taking. Czaplewski's assertion that vandalism occurred after the taking and before the property was appraised does not establish either error or prejudice.

Czaplewski also contends that the district court erred in ruling inadmissible evidence that Czaplewski had a certificate of occupancy and waivers from city ordinances to continue to use the property as a rental property and evidence about his renovation and rehabilitation plans. When property is taken, its "value is to be determined with reference to the highest and best use of the property under applicable zoning regulations." Port Auth. v. Englund, 464 N.W.2d 745, 748 (Minn. App. 1991) (quoting City of St. Paul v. Rein Rec., Inc., 298 N.W.2d 46, 49 (Minn. 1980)).

Czaplewski does not cite evidence showing that the certificate of occupancy and waivers from city ordinances were in effect on the date of taking. The district court found that at the time of taking, the triplex on the property was fire-damaged and uninhabitable. Czaplewski does not cite evidence indicating that his renovation and rehabilitation plans were feasible or affected the property's market value on the date of taking. The facts and arguments in Czaplewski's brief and reply brief do not establish that excluding evidence regarding the certificate of occupancy, waivers from city ordinances, and renovation and rehabilitation plans was error or caused Czaplewski prejudice. Compare City of St. Paul, 298 N.W.2d at 51 (district court acted within its discretion in admitting evidence regarding development plans when plans went beyond mere speculation and constituted "factors likely to markedly influence a prospective purchaser and seller in fixing a purchase price for the property"); Port Authority, 464 N.W.2d at 749 (because the record suggested a significant probability that the property would be developed for a particular purpose and because such a development would be important in an actual sale of the property, cost-development valuation method was appropriate).

Affirmed.