This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of:

Special Assessments Adopted by

the City of Paynesville, for

Improvements to First Street

Notice of Appeal of John and

Kathy Frandson.

Filed January 19, 1999

Dismissed in part and reversed in part.

Peterson, Judge

Stearns County District Court

File No. C896380

Robert D. Stoneburner, 100 Washburne Avenue, Paynesville, MN 56362 (for appellants)

William Spooner, 113 Washburne Avenue, Paynesville, MN 56362 (for respondent)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Anderson, Judge.



Appellants John and Kathy Frandson challenge the district court's order and judgment affirming a special assessment made against their property by respondent City of Paynesville and a subsequent order awarding the city costs and disbursements. We dismiss the appeal from the order and judgment affirming the special assessment and reverse in part the order granting costs and disbursements.


Following a street improvement project, respondent City of Paynesville levied a special assessment of $4,328.43 against appellants John and Kathy Frandson's property. The Frandsons appealed the assessment to the district court, where they argued that the street improvements did not confer a benefit or increase the market value of their property.

The district court concluded that the Frandsons' property benefited from the street improvements in an amount equal to or in excess of the $4,328.43 assessment, and, on January 20, 1998, a judgment was entered affirming the assessment. The city filed a notice of taxation of costs and disbursements and, following a hearing, the district court awarded the city $4,034.86 for costs and disbursements.



A special assessment appeal to the district court is in the nature of a special proceeding. Marzitelli v. City of Little Canada, 582 N.W.2d 904, 905-06 (Minn. 1998). Expect as otherwise provided by statute, an appeal from the final order or judgment affecting a substantial right made in a special proceedings "must be taken within the time limited for appeal from an order." Minn. R. Civ. App. P. 104.03.

In the past, this court interpreted rule 104.03 as providing that an appeal from a final judgment in a special proceeding must be taken within 30 days after an adverse party serves written notice of filing. See, e.g. Hofseth v. Hofseth, 456 N.W.2d 99, 101 (Minn. App. 1990). However, the supreme court concluded in Marzitelli that the time to appeal a judgment in a special proceeding expires 30 days after the entry of judgment. 582 N.W.2d at 906 n.15 (citing Minn. R. Civ. App. P. 103.03(g), 104.03).

The Frandsons argue that this appeal is timely because the judgment affirming the city's special assessment was not entered until April 23, 1998. But the judgment specifically states on its face that it was entered on January 20, 1998. Also, in their notice of appeal, the Frandsons state that they are appealing from the district court judgment entered January 20, 1998. Under Minn. R. Civ. App. P. 103.03(g) and 104.03, the time to appeal from the judgment entered on January 20, 1998, and the underlying order expired 30 days after the entry of judgment. See also Minn. R. Civ. App. P. 104.02 (no order made prior to entry of judgment shall be appealable after expiration of the time to appeal from the judgment). Because the Frandsons did not file this appeal until April 20, 1998, under Marzitelli , this court lacks subject matter jurisdiction to consider the merits of the appeal. See Township of Honner v. Redwood County, 518 N.W. 2d 639, 641 (Minn. App. 1994) (court of appeals lacks jurisdiction to consider untimely appeal), review denied (Minn. Sept. 16, 1994). The determination of costs and disbursements did not extend the time to appeal the January 20, 1998, judgment. See Minn. R. Civ. P 104.02 (time to appeal from judgment shall not be extended by subsequent insertion therein of costs and disbursements of prevailing party). We, therefore, dismiss the appeal from the January 20, 1998, judgment and underlying order.


The Frandsons also contend that the district court's April 9, 1998, order awarding costs and disbursements of $4,034.86 should be reversed.

[T]he award of costs is discretionary with the [district] court, and in the absence of abuse of discretion, its decision will be respected.

Edward Kraemer & Sons, Inc. v. Village of Burnsville (In re Village of Burnsville Assessments for Improvement No. 70TS-8 for Sanitary Sewer), 287 N.W.2d 375, 377 (Minn. 1979).

The city initially requested $6,213.50 for costs and disbursements. This amount included $5,792.61 for the services of an expert witness who testified about the value of the benefits the Frandsons' home derived from the street improvement project. The district court reduced the expert witness fee by $2,178.75, which was one-half of the amount the expert charged for preparing his written report and preparing for trial. The subject of the report and the expert's trial testimony was the value of a single-family home before and after a street improvement project. Considering the relatively routine nature of a single-family home appraisal, we conclude that even after the reduction made by the district court, the award of costs was beyond the discretion of the district court. See Johnson v. Southern Minn. Mach. Sales, Inc., 460 N.W.2d 68, 73 (Minn. App. 1990) (expert witness fee warranted considering complexity of litigation and difficulty of proving design defect claim).

Even after the reduction imposed by the district court, the expert witness fee included compensation for more than 22 hours to prepare the written report and more than 8 hours to prepare for trial. This amount is excessive in comparison to the amount for the services of the Frandsons' expert witness, which was approximately $800. We reduce the costs awarded the city by $1,378.75, which results in an expert witness fee award of $800 for preparing the written report and preparing for trial.

Dismissed in part and reversed in part.