This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-850

A06-1194

 

 

Minch Family Limited Partnership through its

general Partner, A. R. Minch and A. R. Minch, individually,

Appellants,

 

vs.

 

Buffalo-Red River Watershed District, et al.,

Respondents.

 

 

Filed January 16, 2007

Affirmed as modified

Halbrooks, Judge

 

 

Clay County District Court

File No. C6-05-1688

 

 

Roger J. Minch, Beverley L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, ND 58108 (for appellants)

 

Tami L. Norgard, Robin A. Schmidt, Vogel Law Firm, 218 NP Avenue, P.O. Box 1389, Fargo, ND 58107 (for respondents)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from the district court’s judgment of dismissal on summary judgment and award of costs and disbursements to respondents Buffalo-Red River Watershed District (BRRWD) and its officers and managers Roger Ellefson, Curtis Nelson, Gerald L. VanAmburg, John E. Hanson, and E. Robert Olson, appellants Minch Family Limited Partnership and A. R. Minch contend that the district court erred by determining that the BRRWD’s enforcement powers are discretionary and that the watershed-district managers’ actions do not constitute intentional infliction of emotional distress and that the district court abused its discretion by awarding respondents their costs and disbursements.  We affirm as modified.

FACTS

            Appellant A. R. Minch bought approximately 560 acres of land, including the south half of Section 28 in Kragnes Township, in the 1970s as investment property and later transferred the land to appellant Minch Family Limited Partnership.  The land is now prone to flooding as a result of improvements to a dike built in 1979 by Robert Norby, whose land is immediately north of Minch’s Section 28 property.  The area is within the jurisdiction of respondent BRRWD.

            Norby built the dike without obtaining a permit from the BRRWD, which must approve improvements that affect drainage.  Norby filed a permit application after completion; and the BRRWD approved the permit, although the BRRWD’s rules did not address approval of drainage projects after the fact.  Norby continued to increase the height of his dike without permits from the BRRWD, and the dike gradually became high enough in 2000 or 2001 to impact drainage from appellants’ land.  After the dike washed out in April 2001, Norby rebuilt it despite the BRRWD’s warning that he first needed a permit.  Appellants assert that they suffered a 100% crop loss on 65 acres in Section 28 in 2004. 

            Minch filed a series of lawsuits against the BRRWD.  Two of the suits concerned issues related to Section 34 of Minch’s property.  The district court in those matters granted summary judgment to the BRRWD.  On appeal to this court, we concluded that the BRRWD lacks authority under chapter 103D of the Minnesota Statutes to order a landowner to clean a private ditch subject to the watershed district’s public right-of-way easement.  We therefore reversed.  But because neither the watershed district nor the district court determined whether cleaning and removing the siltation in the ditch was an “obstruction” within the meaning of Minn. Stat. § 103E.075 (2004), we remanded to the district court for further proceedings consistent with the decision.  Minch v. Buffalo-Red River Watershed Dist., 723 N.W.2d 483, 489-91 (Minn. App. 2006). 

            In this action, Minch sued the BRRWD and its officers, individually, for their failure to enforce the watershed-district rules against Norby and for the emotional distress that Minch claimed he suffered as a result of the BRRWD’s conduct.  Minch asserted that he sustained emotional distress because the BRRWD and its officers and managers intentionally caused him public humiliation, aggravation, frustration, and anger and treated him as an outsider.  Minch claims that his emotional distress caused him to suffer depression, anxiety, stress, sleeplessness, increased diabetic symptoms, and additional stress on his immune system, which was already compromised by chemotherapy and radiation treatments for his lung cancer.  Respondents moved for summary judgment, while appellants moved for leave to take additional depositions.  A few weeks after the summary-judgment hearing, Minch died of lung cancer. 

            The district court initially granted respondents’ motion in part and denied it in part, dismissing all of appellants’ claims except for the claim for damages resulting from the Section 34 ditch cleaning.  The district court stated that genuine issues of material fact existed as to that claim.  Two weeks later, the district court, on its own initiative, corrected its prior order and granted summary judgment to respondents on all issues.  In so doing, the district court noted that the ditch-cleaning claim was not properly before it, given that the ditch cleaning did not take place until after the amended complaint in this matter was filed and because that issue had already been litigated in proceedings before a different district court judge.  The district court also awarded respondents their costs and disbursements.  Appellants’ motion for reconsideration was denied, as was respondents’ request for attorney fees.  This appeal follows.

D E C I S I O N

            “On an appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the 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) (citation omitted). 

            No genuine issue for trial exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  “When the nonmoving party bears the burden of proof on an element essential to the nonmoving party’s case, the nonmoving party must make a showing sufficient to establish that essential element.”  Id.; seealso Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) (stating that “[a] party need not show substantial evidence to withstand summary judgment . . .summaryjudgment is inappropriate if the nonmoving party has the burden of proof on an issue and presents sufficient evidence to permit reasonable persons to draw different conclusions”).

I.

            Appellants contend that the permit issued to Norby after he constructed his dike in 1979 was illegal because the BRRWD failed to enforce its rules.  The district court based its summary-judgment decision on the authority of a watershed district as set forth in Minnesota Statutes chapters 103D and 103E.  The district court determined that the watershed district’s enforcement powers are discretionary, not mandatory, based on the statutory provision that an action by a watershed district “may be enforced by criminal prosecution, injunction, action to compel performance, restoration, abatement, and other appropriate action.”  Minn. Stat. § 103D.545, subd. 2 (2006).  The use of the term “may” is permissive, in contrast to “shall” or “must,” which are mandatory.  Minn. Stat. § 645.44, subds. 15-16 (2006).  A watershed district must adopt rules to implement statutory powers granted to managers.  Minn. Stat. § 103D.341, subd. 1 (2006).  But Minnesota law is silent about whether a watershed district may grant a permit after the fact.  See Minn. Stat. § 103D.345 (2006).

            The BRRWD has established rules for granting permits in a manner

not intended to delay or inhibit development.  Rather, the permits are needed so that the Managers are kept informed of planned projects, can advise and in some cases provide assistance, and to insure that developments of the natural resources are orderly and in accordance with the Overall Plan for the District.

 

Buffalo-Red River Watershed Dist. R. § 4.  But the rules also state that “No works or use requiring a permit shall be commenced prior to the issuance of the permit.”  Id., § 4(B).  Action on a permit request occurs at the first regular meeting that is 30 days after the district receives the application.  Id., § 4(D).

            Appellants contend that the statute requires the BRRWD to enforce its rules and allows for discretion only as to the method of enforcement.  We disagree.  The district court’s interpretation of Minn. Stat. § 103D.545, subd. 2, is consistent with the permissive quality of watershed-district powers.  See Minn. Stat. §§ 103D.335, subds. 4, 25 (2006) (stating that districts “may” use 19 listed powers); and .705, subd. 1 (2006) (stating that projects “may be initiated by a project petition”); Love v. Burlington N., Inc., 407 N.W.2d 452, 454 (Minn. App. 1987) (allowing districts the choice of approving projects by permit or petition).  The district court correctly determined that the BRRWD’s enforcement powers are discretionary.

            In addition, while it is not essential to this decision, we note that the BRRWD asserts that it is in the process of enforcing its rules against Norby.  At a BRRWD meeting at which appellants were represented, their concerns about enforcement were addressed.  Respondent BRRWD officer and manager “VanAmburg agreed that Norby’s illegal diking activities have to be addressed.”  The BRRWD has mailed several warnings to Norby.  As early as 2001, the BRRWD responded to complaints by warning Norby that he needed approved permits to undertake work on the dike and that Norby’s repairs to his dike were illegal because he had not obtained a permit.  Other letters indicated Norby’s failure to acknowledge the BRRWD’s rules or to cooperate.  On October 7, 2002, the BRRWD denied a permit to Norby “because the previous work you installed in this area several years ago is illegal and in violation of our Rules. . . . Granting you a permit at this time to replace a culvert would be condoning your illegal activities,” which blocks a natural waterway and encroaches on rights-of-way. 

II.

            Before Minch’s death, he asserted a claim for intentional infliction of emotional distress.  Minnesota courts use a standard definition for intentional infliction of emotional distress, involving a four-part analysis that requires that (1) the conduct be extreme and outrageous; (2) the conduct be intentional or reckless; (3) the conduct cause emotional distress; and (4) the distress be severe.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983) (citing Restatement (Second) of Torts § 46(1) (1965)).  To meet this test, the conduct must be “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.”  Haagenson v. Nat’l Farmers Union Prop. & Cas. Co., 277 N.W.2d 648, 652-53 n.3 (Minn. 1979) (citing Restatement (Second) of Torts § 46 cmt. d (1965)).  The distress must be “so severe that no reasonable [person] could be expected to endure it.”  Hubbard, 330 N.W.2d at 439 (quoting Restatement (Second) of Torts § 46 cmt. j (1965)).

            The district court granted summary judgment to respondents on this claim on the ground that the watershed-district managers’ actions were taken “within the scope of their positions when they voted on issues concerning Minch and when they decided whether to enforce their rules.”  The district court further stated that “[w]hile Minch may have disagreed with the managers’ actions, this does not rise to the level of distress necessary for a claim of intentional infliction of emotional distress.”  Because the district court determined that the first element of the tort had not been met, it did not analyze the other elements.  We agree that the BRRWD’s conduct does not fulfill the first element, and therefore Minch’s claim fails.

            Summary judgment is proper for an intentional-infliction-of-emotional-distress claim if a party “does not meet the high standard of proof needed.”  Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).  In Strauss, the respondent was a physician who wrote on a patient’s chart that he was concerned about possible child abuse by the patient’s spouse, the appellant.  Id. at 910.  That notation caused the family to lose its medical coverage and to be denied coverage by another insurer.  Id. at 910-11.  The physician admitted to the patient that he intended to “get back” at appellant for “talking to him in a manner that he found offensive,” being careful to make the statement without actually making an accusation of child abuse.  Id. at 911.  The district court granted summary judgment to the respondent on appellant’s claim of intentional infliction of emotional distress because respondent’s conduct was not sufficiently “extreme or outrageous by reasonable standards” to satisfy the first element of the tort.  Id. at 913.  Furthermore, the district court “concluded that [appellant] had failed to show manifestations of severe emotional distress as a result of the actions of [respondent].”  Id.  On appeal, we affirmed, concluding that the physician’s conduct was not sufficiently “extreme or outrageous” and that “[appellant] ha[d] not shown severe physical manifestations of emotional distress” resulting from respondent’s conduct, as “[g]eneral embarrassment, nervousness and depression are not in themselves a sufficient basis for a claim of intentional infliction of emotional distress.”  Id.

            In another case in which the district court dismissed an intentional-infliction-of-emotional-distress claim on summary judgment, a dispute over the location of a houseboat resulted in respondent neighbors disconnecting and removing the electric meter and cutting phone lines for appellants’ houseboat, spraying obscenities on appellants’ garage on the day of a family wedding, puncturing appellants’ automobile tires, regularly yelling obscenities at them, and impeding appellants’ use of a common access road.  Jensen v. Walsh, 609 N.W.2d 251, 252-53 (Minn. App. 2000), rev’d on other grounds, 623 N.W.2d 247 (Minn. 2001).  Appellants alleged that they suffered depression, sleep difficulties, anxiety, inability to focus at work, and physical problems including stress in the chest and intestinal system, vomiting, and headaches.  Id. at 254.  The district court determined that these symptoms were insufficient to establish an intentional-infliction-of-emotional-distress claim as a matter of law.  Id.  We concluded on appeal that the district court properly dismissed the intentional-infliction-of-emotional-distress claim because there was “insufficient evidence of severe emotional distress.”  Id.

            Here, Minch claims that he suffered intentional infliction of emotional distress because respondents publicly humiliated him at public meetings and encouraged others to do so, inconsistently enforced watershed-district rules to appellant’s detriment, and treated him as an outsider.  As a result, Minch asserts that he suffered depression, anxiety, stress, sleeplessness, increased diabetic symptoms, and additional stress on his immune system.  Based on the Minnesota supreme court’s statement that intentional infliction of emotional distress “is ‘sharply limited to cases involving particularly egregious facts’ and that a ‘high threshold standard of proof’ is required to submit the claim to a jury,” Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn. 2003) (quoting Hubbard, 330 N.W.2d at 439), we conclude that the district court properly dismissed appellant’s intentional-infliction-of-emotional-distress claim in this matter.

III.

 

            Appellants assert that the district court abused its discretion by awarding costs and disbursements to respondents because appellants were entitled to a hearing on the matter and because respondents’ motion lacked sufficient specificity.  Granting disbursements is within the district court’s discretion, reversible only upon abuse of discretion.  Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn. 1984).

            “Costs and disbursements shall be allowed as provided by statute.”  Minn. R. Civ. P. 54.04.  Prevailing parties in the district court may obtain “reasonable disbursements paid or incurred, including fees and mileage paid for service of process by the sheriff or by a private person.”  Minn. Stat. § 549.04 (2006).  Any requested disbursement must be stated in detail with supporting affidavits.  Minn. R. Civ. P. 54.04. But “[o]n its face, this rule does not require the [district] court to conduct a hearing to determine the reasonableness of the alleged costs.”  Buller v. A.O. Harvestore Prods., Inc., 518 N.W.2d 537, 543 (Minn. 1994). 

            While a hearing may not be required, costs and disbursements must be reasonable and necessary.  Stinson v. Clark Equip. Co., 473 N.W.2d 333, 338 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).  “The standard by which the court’s discretion is measured is whether expenditures are reasonable.  Therefore, absent a specific finding that the costs were unreasonable, the court shall approve recovery of disbursements.”  Jonsson v. Ames Constr., Inc., 409 N.W.2d 560, 563 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987).  In determining the amount of disbursements, the district court must make sufficient findings of fact based on oral testimony with an opportunity for both direct and cross-examination.  Beniek v. Textron, Inc., 479 N.W.2d 719, 724 (Minn. App. 1992), reviews denied (Minn. Feb. 19, 27, 1992). 

            Here, respondents’ counsel submitted an affidavit requesting $200 in statutory costs.  See Minn. Stat § 549.02, subd. 1 (2006) (allowing $200 to defendant upon dismissal or judgment in defendant’s favor on the merits).  In the same affidavit, respondents requested disbursements totaling $6,698.90, including: deposition and videographer costs of $5,974.85; filing fees of $385; attorney mileage and meal reimbursements of $208.74 associated with depositions; copying costs of $109.80; and Westlaw charges of $20.51.  Respondents also requested $47,776.25 in attorney fees under Minn. Stat. § 103D.545 (2006), based on appellants’ alleged excessive zeal in litigation. 

            The district court granted respondents’ motion for costs and disbursements based on Minn. R. Civ. P. 54.04 and Minn. Stat. §§ 549.02, .04 (2006).  The district court denied respondents’ request for attorney fees.  The denial of attorney fees has not been challenged on appeal. 

            The focus of our review is reasonableness.  Here, respondents’ counsel outlined their costs in a detailed affidavit to the district court, on which the district court relied.  Appellants have not challenged the accuracy of the amounts claimed.  And the affidavit submitted in support of the motion for costs indicates that the majority of the costs was incurred in the course of taking depositions of individuals whose depositions appellants noticed. 

            The rule of procedure governing costs and disbursements states that they “shall be allowed as provided by statute.”  Minn. R. Civ. P. 54.04.  Respondents cite Minn. Stat. § 103D.545, subd. 3, as their statutory basis for reimbursement for attorneys’ mileage and meals associated with the depositions.  We disagree that that statute is an appropriate basis for such an award in this matter.  Minn. Stat. § 103D.545 is entitled “Enforcement”; subdivision 3 states that

[i]n any civil action arising from or related to a rule, order, or stipulation agreement made or a permit issued or denied by the managers under this chapter, the court may award the prevailing party reasonable attorney fees and costs.

This case arises out of Minch’s claim of emotional distress resulting from his assertion that the managers improperly failed to act.  Because we find no statutory authority to support reimbursement of attorney mileage and meal expenses, we modify the district court’s award to omit that component.  We, therefore, conclude that the district court acted within its discretion in granting costs and disbursements with one exception—the $208.74 claim for attorney mileage and meals.

            Affirmed as modified.