This opinion will be unpublished and

may not be cited except as provided by

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




County of Blue Earth,



Dennis J. Turtle, et al.,


MinnStar Bank,

f/k/a The Lake Crystal National Bank,


Filed July 14, 1998

Appeal dismissed

Holtan, Judge*

Blue Earth County District Court

File No. C1972081

*Retired judge of the district court, serving on the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, &167; 10.

Ross E. Arneson, Blue Earth County Attorney, 410 South Fifth Street, Mankato, MN 56002-3129 (for respondent)

Kenneth R. White, Farrish, Johnson & Maschka, 201 North Broad Street, Suite 200, Mankato, MN 56002-0550 (for appellant)

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Holtan, Judge.



This is an appeal from a district court order denying appellants Dennis and Mary Turtle's motion to dismiss respondent Blue Earth County's complaint for failure to state a claim. The Turtles appeal, arguing the district court erred by ordering partition where there is no common ownership of land. Respondent Blue Earth County sought an order to show cause. The court, at the request of respondent, dismissed its motion. Because the district court did not order partition and did not issue a final order from which to appeal, we dismiss.


The Turtles owned two separate, but adjacent, parcels in Blue Earth County. An apartment building was built across the two parcels. Property taxes on parcel #1 became delinquent and owing in 1980. The Turtles received proper notification that the period of redemption had expired, but took no action. Therefore, absolute title vested in the state as to parcel #1.

Property taxes on parcel #2 also became delinquent and owing in 1980, 1984, and 1992. After each occurrence and upon notification by the state, the Turtles paid the delinquent taxes on this parcel.

In October 1997, Blue Earth County commenced an action seeking partition. The Turtles then moved to dismiss for failure to state a claim and a hearing was held on January 2, 1998.

Pursuant to Minn. Stat. § 558.04 (1996), the district court found that this appeared to be a proper case for the court "to render judgment that partition should be made." However, the district court also noted that there may be options other than a sale in a partition action to resolve this dispute. The district court then stated that it intended to appoint "three disinterested and judicious citizens of the County as referees, after the parties have had an opportunity to make recommendations to the Court." The district court then set February 13, 1998, as the hearing date to discuss the recommendations.

Concluding that the Turtles had shown no basis on which to grant their motion, the motion to dismiss was denied.


Where material facts are not in dispute, a reviewing court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). This court will generally not consider matters not argued and decided in the court below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).

The Turtles argue that the district court erred by ordering partition of the property. They contend that because common ownership of the property does not exist, partition cannot be had and the county's action should have been dismissed.

Appeals in partition proceedings are governed by Minn. Stat. § 558.215 (1996). Minn. Stat. § 558.215 provides in part:

Any party to any partition proceedings may appeal from any order or interlocutory judgment made and entered pursuant to section 558.04, 558.07, 558.14, or 558.21* * *.

All matters determined by any order or interlocutory judgment shall be conclusive and binding upon all parties to the proceedings and shall never be subject to review by the court unless appealed from as provided herein.

Furthermore, to be appealable thereunder, a ruling must mandate a partition or sale. Id.

Here, the district court's order stated in part:

5. [Minn. Stat. §] 558.01 provides for partition actions when two or more persons are interested in "real property"; it does not refer to individual parcels of real property as designated by the Registrar of Deed.

6. This appears to be a proper case, pursuant to [Minn. Stat. §] 558.04 for the Court to render judgment that partition should be made. The Court notes there are several options other than sale in a partition action. The Court intends to appoint three disinterested and judicious citizens of the County as referees, after the parties have had an opportunity to make recommendations to the Court, and discuss other matters, on February 13, 1998, at 2:15 p.m.

(Emphasis added.) The court then concluded he had no basis to issue an order to show cause and denied the Turtles' motion to dismiss.

Here, the district court did not mandate partition or sale. Thus, the order does not otherwise fall into one of the provisions listed in Minn. Stat. § 558.215. We hold, therefore, that the order is not appealable under Minn. Stat. § 558.215. See Martinco v. Hastings, 265 Minn. 490, 495, 122 N.W.2d 631, 637 (1963) ("when a statute speaks with clarity in limiting its application to specifically enumerated subjects, its application shall not be extended to other subjects by process of construction").

Moreover, because the order (1) does not require partition, (2) notes the existence of "several other options," and (3) states that the court "intends" to appoint persons to advise the court on how to resolve this matter, the order is not final because it contemplates further proceedings. Thus, we cannot say that the district court's order is appealable under the rules. See Minn. R. Civ. App. P. 103.03 (listing appealable orders and judgments; Weinzierl v. Lien, 296 Minn. 539, 209 N.W.2d 424 (1973) (generally, only a decision that finally determines the rights of the parties and concludes the action is appealable); Henry Campbell Black, et al., Black's Law Dictionary 629 (6th ed. 1990) ( a "final appealable order or judgment" is one that disposes of all issues and all parties in the case and leaves nothing for further determination).

Because the district court's order contemplates further action in this matter, we conclude that the January 6, 1998, order did not constitute a final order or judgment from which to appeal. See Minn. R. Civ. App. P. 103.03. Because this appeal has been taken from a nonappealable order, we do not reach the issue of whether partition was proper.

We observe that the county argues that even if we determine the district court did not order partition, this court, in the interest of judicial economy, should order partition. This court does not "comprehend the giving of advisory opinions," and we decline to do so in this matter. Milner v. McKennen Hosp., 529 N.W.2d 498, 501 (Minn. App. 1995).

Appeal dismissed.