This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




City of Duluth,



Roy M. Anderson, et al.,


Filed June 15, 1999

Affirmed and Motion Denied

Davies, Judge

St. Louis County District Court

File No. C39760229

William P. Dinan, Duluth City Attorney, M. Alison Lutterman, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for respondent)

Michael R. Inglimo, Inglimo & Associates, P.O. Box 008, Superior, WI 54880 (for appellants)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.



Appellants Roy and Mary Anderson contend the district court erred by granting summary judgment for equitable relief to respondent City of Duluth. We affirm and deny respondent's motion for damages and costs under Minn. R. Civ. App. P. 138.


On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "[T]he 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 (Minn. 1993).

I. Collateral Estoppel

Appellants challenge the district court's conclusion that they are collaterally estopped from challenging an order condemning an apartment building they own, the San Marco. This court reviews de novo the applicability of collateral estoppel. In re Trusts Created by Hormel, 504 N.W.2d 505, 509 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

Collateral estoppel may apply to administrative decisions when an agency acts in a judicial or quasi-judicial capacity. Five factors must be satisfied:

(1) the issue to be precluded must be identical to the issue raised in the prior agency adjudication; (2) the issue must have been necessary to the agency adjudication and properly before the agency; (3) the agency determination must be a final adjudication subject to judicial review; (4) the estopped party was a party or in privity with a party to the prior agency determination; and (5) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Graham v. Special School Dist. No. 1, 472 N.W.2d 114, 115-16 (Minn. 1991) (citations omitted).

Respondent demonstrated that the same issue--whether the condition of the San Marco precluded occupancy--was raised at a December 11, 1996, Building Appeals Board meeting and before the district court in 1998. That issue was properly before the board. Appellants were a party to the Building Appeals Board decision. They also had the opportunity to be heard, and Roy Anderson spoke at the board meeting. The decision was a final decision subject to review by the city council, and to judicial review if appellants had timely applied for a writ of certiorari. See Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (writ of certiorari is mechanism for judicial review of quasi-judicial decisions of administrative bodies in absence of other adequate method or legal remedy).

Granting summary judgment to respondent on the basis of collateral estoppel was appropriate.[1]

II. The Sewer Line

Appellants' brief contains no factual support or authority for the argument that they were absolved from complying with the municipal code when they repaired a leaking sewer. Appellants assert that their work on the sewer was done with the "tacit approval" of the city.

In their brief, appellants state that "[a]ny * * * work done on the sewer line was completed after the advise [sic] of EARL RUBLE, a licensed engineer consulted [sic] with the City of Duluth." But at his deposition, Ruble stated that appellants contacted him to look at the sewer line only after repairs had already been completed. And to the extent appellants contend there is any legal error arising from the alleged tacit approval, they have so inadequately briefed the issue that it is deemed waived. See State, Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (court declines to address issue in absence of adequate briefing); State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (assignment of error in brief based on mere assertion is waived unless prejudicial error is obvious on mere inspection).

III. Finding of Occupancy

Appellants also contend the district court erred in finding that there was an occupant at 226 West Third Street, another property owned by appellants.[2] Appellants correctly point out that the district court restricted the record to respondent's initial submissions accompanying its summary judgment motion and that the only affidavit supporting occupancy was not within these materials. But appellants did not show that reliance on the affidavit alleging occupancy substantially prejudiced them or that any error was more than harmless. See Minn. R. Civ. P. 61 (court must disregard error unless refusal to take action is "inconsistent with substantial justice"); Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (appellant has burden of demonstrating error is prejudicial), review denied (Minn. June 28, 1993).

IV. Damages and Double Costs

Respondent moved for $1,000 in damages and double costs under Minn. R. Civ. App. P. 138. Although appellants' arguments lack merit, we decline to grant respondent's motion. See Prechtel v. Gonse, 396 N.W.2d 837, 840 (Minn. App. 1986) (motion denied when court found meritless arguments raised issues sufficient to preclude sanctions).

Affirmed and motion denied.

[1] Appellants made no claim and offered no evidence that improvement in the property had occurred in the two years from the date of the board order. Had such evidence been offered, we could not assume the condition of the property was the same in the two proceedings and, therefore, could not conclude that the issue raised was identical.

[2] The panel requested letter briefs on this issue at oral argument, but received responses regarding occupancy of the San Marco, not 226 West Third Street.