This opinion will be unpublished and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

A06-358

A06-742

Rand Claussen,
Appellant,
Barbara Claussen,
Appellant,
Edward Salovich, et al.,

Plaintiffs,

vs.

City of Lauderdale, Minnesota,
Respondent,
Paul Nolan, et al.,
Respondents,
Dennis Dolphin, et al.,
Defendants.

 

Filed May 1, 2007

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. C800007228

 

Rand Claussen, Barbara Claussen, 2345 Summer Street, Lauderdale, MN 55113 (pro se appellants)

 

Robert A. Alsop, John M. LeFevre, Jr., Kennedy & Graven, Chtd., 470 U.S. Bank Plaza, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent City)

 

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

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Pro se appellants challenge two district-court orders relating to a boundary line between their property and property owned by respondent City of Lauderdale[1] and denying attorney fees to appellants.  We affirm.

FACTS

 

Appellants Rand and Barbara Claussen own property that, on the north, abuts a park property owned by respondent City of Lauderdale.  In 2000, in response to the city’s proposal to remove a fence that was north of the registered south boundary of the park and install a bicycle path on city park property adjacent to Claussens’ property, Claussens[2] sued the city, claiming ownership of a portion of the 7-8 foot strip of land located between the registered south boundary of the city park and the fence (contested property), under several theories, including adverse possession.  The city’s Certificate of Title to the city park refers to the relevant parts of the park property as the “Rose Hill Garden Lots.”

            Although Claussens had always believed that their property abutted the park, surveying done in connection with this litigation revealed a 72.30-foot gap between the legal description of the north boundary of Claussens’ property and the registered south boundary of the city park (gap).  The gap is south of and does not involve any of the contested property.  Claussens amended their complaint to include a claim to the gap by adverse possession.

            By order filed April 14, 2003, the district court held that Claussens could not establish title to the contested property through adverse possession but awarded Claussens a use easement over the contested property.  In the same order, the district court addressed the gap, noting that because the gap is south of the city park, the city had no claim to it.  The district court held that Claussens “should have a legal description that gives them fee title up to the registered South lines of Block 2, lots 12 and 13 and Block 1, Lot 12” and ordered the Examiner of Titles to amend the legal description of  Claussens’ property “to conform to this order.”

            The city appealed only the portion of the April 14, 2003 order awarding an easement on the contested property.  Claussen v. City of Lauderdale, 681 N.W.2d 722, 724 (Minn. App. 2004), review denied (Minn. Sept. 21, 2004).  Pending that appeal, the parties stipulated to stay the portion of the order requiring redrafting of Claussens’ legal
description.  On appeal, we concluded that the district court erred in granting an easement on the contested property and vacated that portion of the order.  Id. at 727-28.

            The city then filed a petition for a proceeding subsequent to eliminate a gap in the description of a separate parcel of city property that is similar to the gap in Claussens’ legal description.  This separate city parcel is not adjacent to Claussens’ property.  Claussens, who have no interest in the city parcel involved in the proceeding-subsequent petition, filed an objection to the city’s petition.  The matter was assigned to a judge different from the judge who had handled the initial litigation.  At a prehearing conference, the city challenged Claussens’ standing to object to the city’s petition.  The district court asked Claussens to identify their issues.  Claussens urged the district court to implement the April 14, 2003 order regarding the legal description of their property.

            Without addressing Claussens’ standing to participate in the city’s proceeding, the district court issued an order on December 6, 2005, ordering the Examiner of Titles to “determine the location of the southerly line of [the] Rose Hill Garden Lots” and stating that “[a]ll property north of the demarked line shall be the property of the City of Lauderdale and the property to the south will be the property of the adjoining property owners, including the [Claussens].”

            Under this order, the Examiner of Titles prepared a report that included a proposed legal description of Claussens’ property based on the examiner’s determination of the location of the southerly line of the Rose Hill Garden Lots.  Based on the examiner’s report, the district court issued an order on February 1, 2006, adopting the examiner’s description of the south boundary of the park property as:

The South line of Rose Hill Garden Lots, as shown on the Survey prepared by Paul J. McGinley on October 7, 2005, labeled in 3 places as the South line of Lot 13, South line of Lot 12, approximately 7 feet south of Line A identified on said survey.

 

The district court stated in the memorandum attached to the order that the Examiner of Titles has resolved the dispute between Claussens and the city “with respect to the location of the line which is the boundary between the City’s land to the north and [Claussens’] property to the south.”  The district court directed that judgment should be entered in favor of the city against Claussens.  Claussens appealed from the December 6, 2005 order and the February 1, 2006 order, and the appeals were consolidated.

D E C I S I O N

 

Claussens argue that because the December 6, 2005 order refers to the “southerly line of [the] Rose Hill Garden Lots” rather than the “registered South lines of Block 2, lots 12 and 13 and Block 1, lot 12” used in the April 14, 2003 order, the district court erroneously substituted new findings for unchallenged prior findings that had become the “law of the case.” 

            “Law of the case is a rule of practice that once an issue is considered and adjudicated, that issue should not be reexamined in that court or any lower court throughout the case.”  Peterson v. BASF Corp., 675 N.W.2d 57, 65 (Minn. 2004), vacated on other grounds by Peterson v. BASF Corp., 544 U.S. 1012, 1012, 125 S. Ct. 1968, 1968 (2005).  The rule is “a rule of practice, not of substantive law.”  Braunwarth v. Control Data Corp.,483 N.W.2d 476, 476 n.1 (Minn. 1992).  Based on the record, we conclude that the line referred to in the December 6, 2005 order is the same line referred to in the April 14, 2003 order, and the district court did not substitute “new findings” in this case for findings made in the April 14, 2003 order.  Claussens’ reliance on this doctrine is therefore misplaced.

            Claussens next contend that the April 14, 2003 order gave them fee title to the contested property.  This claim has no merit.  The April 14, 2003 order required the Examiner of Titles to “legally define the property between Lines A and the south line of lot 13, and both lots 12 on the Loucks/McLagan survey” (contested property) and enter a use easement over this same property.  This portion of the order deals with the contested property and is the portion of the order that was previously appealed and reversed by this court.  Plainly, the April 14, 2003 order did not give Claussens fee title to the contested property.

            The unappealed portion of the April 14, 2003 order required the Examiner of Title to amend the legal description of Claussens’ property to eliminate the gap.  In the attached memorandum, the district court, in discussing the gap, stated: “To put this in perspective, [the city] is the registered fee owner of the South line of Block 2, lots 12 and 13; and, Block 1, lot 12.  This line is the same location that forms the northern property line claimed by the plaintiffs through adverse possession.”  The district court went on to award Claussens fee title to the gap “up to the registered South lines of Block 2, lots 12 and 13 and Block 1, lot 12.”  Claussens, who asserted adverse possession claims to both the gap and the contested property, rely on the district court’s reference to “the northern property line claimed . . . through adverse possession” used in defining the gap, to now argue that the reference was in fact to the northern boundary of the contested property and that the district court therefore awarded them fee title to not only the gap, but also to the contested property.  This reading misconstrues the order, in which it is clear that the district court’s reference to the northern boundary claimed through adverse possession is to the northern boundary of the gap, and not the northern boundary of the contested property.  The plain language of the order does not, as Claussens assert, give them fee title to the contested property.

            Claussens’ collateral-estoppel arguments are likewise based on their erroneous assertion that the April 14, 2003 order granted them fee title to the contested property and are therefore equally without merit.  The city is not attempting to relitigate any portion of the April 14, 2003 order that remained valid after its appeal and is in fact attempting to benefit from the order by amending the property description for a separate city parcel to eliminate a gap similar to the gap found in Claussens’ property description that was corrected by the April 14, 2003 order.

            Claussens also argue that the “latter trial judge’s Order is not Fairly Supported by the Record.”  Claussens have not clearly identified which order or what findings they are challenging, but a thorough review of the record demonstrates that findings in both the December 6, 2005 and February 1, 2006 orders are supported by the record.[3]

            Claussens challenge the district court’s statement in the memorandum attached to the February 1, 2006 order that the Examiner of Titles has resolved the dispute between Claussens and the city.  This challenge also appears to be based on Claussens’ erroneous reading of the April 14, 2003 order and claim that the order gave them fee title to the contested property.  As discussed above, this claim has no merit.  Although Claussens refer to other possible claims and claims of non-parties, they do not identify any legitimate dispute between Claussens and the city that remains in this litigation.[4]  The district court correctly concluded that all claims asserted between Claussens and the city have been resolved.

            Finally, Claussens argue that they are entitled to attorney fees, citing Hofstad v. Hargest for the proposition that Minn. Stat. § 508.70, subd. 1(b) (2006), involving Torrens registration, “provides for an award of costs and damages, including a reasonable attorney’s fee, as the court may deem just in cases of subsequent adverse claims to registered property.”  412 N.W.2d 5, 8 (Minn. App. 1987) (quotation omitted).  The district court’s orders do not address a claim for attorney fees, and the city did not address Claussens’ claim for attorney fees in this appeal. 

            From our review of the record, it appears that Claussens are making this claim for the first time on appeal.  Generally we decline to consider matters not argued and considered in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Even if we were to consider this claim, however, other than Claussens’ unsupported allegation that the city has engaged in “a pattern of implied and direct threats and needlessly protracted litigation,” Claussens have made no showing that they are entitled to attorney fees in this matter or that the district court abused its discretion by declining to award attorney fees.

            Affirmed.