This opinion will be unpublished and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

A05-795

 

 

County of Blue Earth,

petitioner,

Respondent,

 

vs.

 

Francis E. Wingen, et al.,

Appellants.

 

 

Filed December 20, 2005

Reversed
Klaphake, Judge

 

Blue Earth County District Court

File No. C5-01-1506

 

 

Arvid Wendland, Wendland Law Office, P.O. Box 247, 825 East Second Street, Blue Earth, MN  56013; and

 

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

 

John M. Riedy, Jorun Groe Meierding, Maschka, Riedy & Ries, Post Office Box 7, Union Square Business Center, Suite 200, 201 North Broad Street, Mankato, MN  56002-0007 (for appellants)

 

            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Following this court’s remand, the district court determined that respondent Blue Earth County incurred $32,562 as a consequence of the appeal taken by appellants Francis and Mary Wingen, and awarded the county that amount as damages under the supersedeas bond posted by the Wingens.  See County of Blue Earth v. Wingen, 684 N.W.2d 919 (Minn. App. 2004) (Wingen II) (reversing and remanding district court’s award of damages to county for a determination of consequential damages); see also County of Blue Earth v. Wingen, 2002 WL 1839209 (Minn. App. Aug. 13, 2002) (affirming grant to county of temporary easement and fee title to Wingens’ property by eminent domain), review denied (Minn. Nov. 19, 2002).

            On appeal, the Wingens argue that the district court overstated the county’s damages based on an incorrect assumption that the county would have been able to enter the Wingens’ property in September 2001, even though 90 days had not yet passed since the county filed its quick-take petition under Minn. Stat. § 117.042 (2000).  The Wingens further argue that the damages claimed by the county were not suffered in consequence of the appeal as required by Minn. R. Civ. App. P. 108.01.

            Because the burden was on the county to prove damages and because the county failed to prove which damages were incurred post-appeal, we reverse.  The supersedeas bond is therefore discharged and the proceedings are dismissed.

D E C I S I O N

            The district court initially awarded Blue Earth County $13,425 in damages, an amount based solely on the amount of the supersedeas bonds requested by the county.  See Wingen II, 684 N.W.2d at 921.  On appeal, this court determined that the damage award was clearly erroneous and remanded the matter to the district court to determine the amount of damages sustained by the county as a consequence of the appeal initiated by the Wingens.  Id. at 925.

            On remand, the district court issued a number of findings, including the following:

            2.         The [county] had planned to acquire fill from [the Wingens’] property for use on the CSAH 10 road reconstruction project.  However, as a result of the appeal taken by [the Wingens], the [county’s] access to [the Wingens’] property was temporarily curtailed.  As the project was already well underway at the time of the entry of the stay pending appeal, [the county] determined to proceed with the project by acquiring substitute fill [from Mr. Annis, who owned property approximately ½ mile south of the Wingens’ property].  That decision was reasonable and appropriate under the circumstances.

 

. . . .

 

            6.         As a direct consequence of [the Wingens’] appeals, [the county] needed to acquire 16,200 cubic yards of substitute fill from the Annis site.  The cost of the fill itself, whether acquired from Annis or [the Wingens], was the same price and therefore can be disregarded.  It is just the cost of transporting the fill that contributed to the damages.

 

            7.         The cost to transport the substitute fill from the Annis site was $4.86 per cubic yard for a total cost of $78,732.  If [the Wingens] had not appealed, the cost of transporting the fill from their land would have been $2.85 per cubic yard or $46,170.  Therefore, [the county] incurred an extra cost of $32,562 as a direct consequence of the appeal by [the Wingens].

 

Based on these findings, the district court concluded that the county suffered over $32,562 in damages “as a direct consequence of the appeal” filed by the Wingens.

            While the Wingens’ current arguments on appeal are varied, a main theme emerges in the form of a challenge to the underlying assumption made by the district court that, but for the Wingens’ appeal and stay, the county was entitled to enter the Wingens’ property and take the fill it needed for the highway project.  An examination of the record, however, establishes that the county decided to haul fill from the alternate Annis site well before the Wingens filed their October 9, 2001 appeal, and that the fill had been hauled from this alternate site before the Wingens’ appeal was perfected.

            In particular, the record shows:  (1) the county filed its quick-take petition seeking a temporary easement to take fill from the Wingens’ property on July 10, 2001; (2) on September 14, 2001, following a September 10 hearing at which the Wingens appeared pro se, the district court granted the quick-take petition and gave the county possession of the easement effective September 11; (3) on September 18, the Wingens’ newly retained attorney sent a letter to the county informing it of their intent to appeal, claiming that the county did not have the authority to enter their property and take fill until October 10, which was 90 days[1] after the county filed its quick-take petition, and warning the county not to enter the Wingens’ property; (4) on September 19, the county engineer, Alan Forsberg, entered into a contract to obtain fill from the alternate Annis site; and (5) the Wingens filed their appeal on October 9 and requested a stay, which was granted on October 22.

            Thus, the evidence clearly shows that the county decided to obtain fill from an alternate location, the county entered into a binding contract to purchase that fill, and that most, if not all, of the fill had already been hauled by the time the Wingens filed their appeal.  Because the county’s presentation on remand to the district court failed to distinguish between damages incurred pre-appeal and any that may have incurred after the Wingens filed their appeal, the county failed in its burden to prove the amount of damages incurred “as a consequence” of the Wingens’ appeal.  We therefore reverse, order the bond discharged, and dismiss the proceedings.

            Reversed.