This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2265

 

Lee T. Herseth, et al.,

Respondents,

 

vs.

 

Katherine Narbo,

Appellant.

 

Filed October 4, 2005

Affirmed

Gordon W. Shumaker, Judge

 

St. Louis County District Court

File No. C1-02-301328

 

 

James R. Cope, Cope & Peterson, Ltd., 415 First Street South, Virginia, MN 55792 (for respondents)

 

Steven A. Nelson, 210 Fourth Avenue, International Falls, MN 56649 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant Katherine Narbo challenges the district court’s order denial of her motion for a new trial or amended findings.  Narbo argues that the district court erred in establishing the boundary line between her property and respondents’ property and allowing respondents to dredge an area around a dock in front of her property.  Narbo further argues that respondents’ alteration of their property has caused a surface-water-runoff trespass to her property and that the procedural requirements for awarding attorney fees under Minn. Stat. § 549.211 (2004) were not satisfied.  Because the district court did not abuse its discretion and because the award of attorney fees is proper, we affirm.

FACTS

            Katherine Narbo and respondents Lee and Lori Herseth have had an ongoing property-line dispute dating back to 1989.  The Herseths are the owners of land consisting of a resort on Lake Kabetogama called the Tomahawk Resort.  Narbo is the owner of adjacent property also situated on Lake Kabetogama.  The property dispute relates to an easement agreement providing primary access to the Herseths’ resort and allowing for joint use of a dock located on the lake.  In the present litigation, Narbo claims that the boundary line between the properties should be more specifically defined and that Herseths have trespassed on and damaged her property.  The Herseths claim that Narbo has blocked access to their resort by placing obstacles in the roadbed that is the boundary line between the properties.

This property dispute culminated in a settlement in 1989.  The settlement agreement provided for an exchange of easements, one with respect to the dock and one dealing with the boundary line between the properties.  The parties agreed that:  (1) Narbo would receive an easement with respect to the dock for recreational purposes; the easement required that there would be no impairment of the Herseths’ use of the dock; and (2) the boundary between the two properties would be a roadway that enters from St. Louis County Road 122.  Specifically, the agreement stated that the property boundary line would be “the roadbed itself, as it stands . . . until there is a new description.”  The settlement agreement further required that a survey of the properties be completed to possibly establish a new westerly boundary line. 

            A survey of the properties was completed in 1992.  It contained complicated legal descriptions rejected by the county and therefore was never filed.  As a result, certificates of title were never issued to either party.  Because the parties could not come to any agreement regarding the boundary line, the survey was never recorded. 

            Narbo argues that the Herseths’ use of the roadbed has gradually encroached on her land and that the parties should establish a specific property line using the 1992 survey.  She further asserts that the 1989 settlement agreement does not allow for the dredging of the beach/dock area in connection with the Herseths’ attempt to repair a portion of the dock.  Finally, she argues that the Herseths have trespassed on her property by causing increased water flow onto her land.  The district court rejected each of Narbo’s claims, permanently enjoined Narbo from interfering with the Herseths’ use of the roadbed, and allowed the Herseths to dredge the dock area in an effort to repair a portion of the dock.  This appeal followed.

D E C I S I O N

Because the district court has the discretion to grant a new trial, we will not disturb the decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  “On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). 

1.         Roadbed boundary line

            Narbo first argues that the district court erred in concluding that the parties’ 1989 settlement agreement continues to control the location of the boundary line between the properties.  Specifically, Narbo contends that the parties entered into an agreement to adopt the 1992 survey to establish the boundary line between the properties and that the Herseths are currently encroaching on her property.  The 1989 settlement provided that “the roadbed itself, as it stands, will be reserved until there’s a new description.   . . .  [T]he road as it exists now, that then becomes the new easement across the property.” 

            The district court’s determination that the boundary line between the properties continues to be the roadbed as contemplated in the original 1989 settlement agreement was not error.  The district court found that the roadway continues to be used in the same manner as intended and that “no technical testimony” was presented to indicate a different boundary line.  Additionally, the district court heard testimony that the location and use of the roadbed has not changed and that the parties intended the roadbed to remain the boundary line between the properties.  Narbo’s only technical evidence is the 1992 survey completed after the 1989 settlement.  But that survey was never filed, the county rejected the descriptions that it contained, and the parties could come to no agreement as to a legal description fixing the easement.  Therefore, the survey was never recorded, and certificates of title were never issued.  It was not error for the district court to conclude that the 1989 settlement agreement continues to control the location of the boundary line.

2.         Dock repair and dredging

            Narbo next argues that the district court erred by allowing the Herseths to dredge the beach/dock in front of her property in order to repair the existing dock.  Narbo contends that because the 1989 settlement establishing her easement with respect to the dock does not mention “dredging,” the Herseths should be enjoined from continuing to dredge the beach/dock area. 

            The DNR granted the Herseths a permit to repair the dock after informing both Narbo and the Herseths by letter that the “dogleg” portion of the dock was “deteriorated and unsafe and needs to be repaired or removed.”  The district court determined that the “dogleg” portion of the dock was in existence before the 1989 agreement establishing Narbo’s easement.  The 1989 agreement states that Narbo has an easement for “recreational purposes,” as long as it does not impair the boat traffic to the dock.  Because Narbo stipulated to the configuration of the dock (including the “dogleg” portion) in the 1989 settlement, the district court refused to allow Narbo to re-litigate the dock issue.  Further, Narbo testified that the dock has been in existence in its current configuration since 1964.  Ronald Bowman, the attorney for the Herseths in the original litigation in 1989, also testified that the configuration of the dock has remained unchanged since the settlement. 

Dredging the dock area is required to adequately repair the “dogleg” portion of the dock and allow the Herseths to park boats at the dock.  The DNR permit allows the Herseths to dredge around the dock area (not the beach area as suggested by Narbo) in order to complete the repair of the dock.  Because there has been no change in the configuration of the dock and because repairing the “dogleg” portion of the dock only allows the Herseths to return the dock to its pre-existing condition, the district court did not err in allowing the dredging of the dock area in accordance with the DNR permit.

3.         Trespass and water damage

            Narbo argues that the Herseths have altered their property and thereby caused an increase in surface-water runoff that damaged her property.  Specifically, Narbo asserts that the Herseths’ clearing and leveling of their property significantly diverted the natural flow of the surface water.  But Narbo offered no evidence that a trespass occurred or that her property was in any way damaged by the Herseths’ actions.  Narbo offered no expert testimony regarding the alleged surface-water runoff but merely asserted that the Herseths’ actions “could have resulted in increased water flow.”  Narbo failed to present evidence to demonstrate that the Herseths’ actions in any way changed the natural water flow so as to damage her property.  Therefore, the district court properly rejected this claim.

4.         Attorney fees

            Finally, Narbo argues that the district court abused its discretion in granting the Herseths attorney fees under Minn. Stat. § 549.211, subds. 2, 4(b) (2004).  Recovery of attorney fees must be based on either a statute or a contract.  Schwickert, Inc. v. Winnebago Seniors, LTD., 680 N.W.2d 79, 87 (Minn. 2004).  An appellate court “will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion.”  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).  Minn. Stat. § 549.211 (2004) permits a district court to award attorney fees as a sanction when, after notice to the offending party and an opportunity to respond, the district court determines that a party has acted in bad faith.  The statute provides that an attorney who presents any document to the court must certify four things: (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal or existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.  Id., subd. 2.

            In its order dated June 16, 2004, the district court determined that attorney fees were warranted because there was “no basis in law or fact to challenge the dock issue . . . ” and that there was “no factual support to [Narbo’s] claim that the [Herseths] have encroached or trespassed upon her property . . . .”  The district court further allowed two weeks for Narbo to respond to the Herseths’ request for attorney fees. 

Narbo argues that the procedural safeguards outlined in Minn. Stat. § 549.211 were not met, but she fails to specify how the court did not follow the procedural safeguards.  The district court both described the offending conduct as required by subdivision 2 and provided Narbo with an opportunity to respond to the Herseths’ request for sanctions. 

Narbo also argues that she provided ample factual support for her arguments concerning the “dogleg” portion of the dock and that the Herseths trespassed on her property, causing substantial damage.  The district court determined that the “dogleg” portion of the dock was part of the original 1989 agreement between the parties, and, therefore, the Herseths were permitted to rebuild the dock in accordance with the appropriate DNR permit.  Additionally, Narbo testified that the dock has been in existence in its current configuration since 1964.  Narbo stated that although the “dogleg” portion of the dock existed, she did not consider that it was part of the dock; that “[t]hey never put any boats on that dogleg.  It was used for his airplane.”  However, the dock was part of the parties’ previous litigation resulting in the 1989 settlement in which Narbo stipulated that she would not impair the Herseths’ use of the dock. 

With respect to the trespass issue, Narbo provided no expert testimony or other competent evidence that any actions by the Herseths diverted the surface water or caused damage to her property.  Therefore, the district court did not abuse its discretion in granting attorney fees in the amount of $3,000 to the Herseths.

            Affirmed.