Norby v. Buffalo-Red River Watershed Dist.

In Re: The Matter of the Petition for Project No. 77, Clay County Ditch No. 51-Lateral No. 3, Robert Norby, Appellant, v. Buffalo-Red River Watershed District, et al., Respondents.

A19-0719

STATE OF MINNESOTA IN COURT OF APPEALS

December 16, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Connolly, Judge

Clay County District Court

File No. 14-CV-15-3485

Zenas Baer, Zenas Baer Law Office, Hawley, Minnesota (for appellant)

Tami Norgard, Charlotte J. Skar Rusch, Vogel Law Firm, Fargo, North Dakota (for respondents)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and Reyes, Judge.

UNPUBLISHED OPINION

CONNOLLY, Judge

Appellant challenges the district court's grant of summary judgment, arguing that the district court erred in reversing a prior judge's denial of summary judgment and that genuine issues of material fact exist. Because there are no material facts in dispute and the district court did not err in applying the law, we affirm.

FACTS

Appellant Robert Norby owns property in Kragnes Township, Clay County. A longstanding dispute over a dike system on appellant's former land between appellant and a neighboring property owner, Roger Minch (Minch) of the Minch Family LLLP, underlies this appeal. Sometime in the 1950s, appellant's father and Minch's predecessor in interest jointly constructed a dike system. Because of the dike system, water flowing north off of Minch's land diverts towards the east through the "Z" alignment, a structure that channels water from the farm fields east into Clay County Ditch 51. This dike system appeared functional when Minch bought the land in the southern part of Section 28, but its effectiveness dissipated, causing substantial flood-related crop damage to Minch.

Respondent Buffalo-Red River Watershed District (the BRRWD) was established in the late 1970s, and state statutes delineate its current powers and responsibilities. See Minn. Stat. §§ 103D.001-.925, 103E.005-.812 (2018). Respondent Bruce Albright is an employee of Houston Engineering, has been involved with the BRRWD since 1980, and currently serves as the BRRWD's Office Administrator. In 1979, appellant received a permit from the BRRWD to straighten and widen a small section of his dike system. Appellant obtained another permit from the BRRWD to repair his dike system in 2006. For over a decade, Minch, Albright, the BRRWD's board members, and the BRRWD's attorney have contended that appellant's dike system is illegal based on his purportedly unpermitted actions of increasing the system's elevation.

In March 2012, Minch and the BRRWD signed a "Stipulation for Entry of Stay of Proceedings" related to Minch's federal lawsuit against the BRRWD concerning appellant's dike system. This stipulation conditioned the dismissal of Minch's lawsuit on the BRRWD's approval of his future drainage petition, but the BRRWD made no promises to grant Minch's petition. Instead, the BRRWD explained that the petition would follow the usual statutory process. That same month, Minch petitioned the BRRWD to approve a drainage project (Project No. 74). To improve drainage on Section 28, Minch's petition proposed cutting a channel through appellant's field and breaching appellant's dikes, much like a design that an engineer consultant with the BRRWD had proposed in 2011. After a Viewer's Report determined that Project No. 74's damages exceeded its benefits, Minch voluntarily withdrew his petition.

Minch again petitioned the BRRWD in August 2014 after receiving assistance from Albright and communicating with the BRRWD's engineer and attorney. This lateral petition also sought to cut a channel through appellant's land (Project No. 77). An engineer completed the detailed engineer's survey in April 2015. This survey focused on Minch's petition and ultimately determined that installing the lateral ditch would be "necessary feasible, and practical." Minch's petition proposed condemning 4.6 acres of appellant's farmland to establish a channel. The engineer's report unfavorably noted that Minch's proposal would increase the drainage time for a 24-hour, 2-year rain event from 15 hours, if the parties cleared out the current channels, to 40 hours. Similarly, the report observed that the costs of implementing Minch's petition were three times the costs of simply restoring the "Z" alignment. But the engineer's report stated that no party had proposedrepairing the existing system, and opined that such an option lacked feasibility because of tensions between appellant and Minch.

The following months, the BRRWD had several hearings where its members discussed Project No. 77. At a final hearing, the BRRWD gave appellant's attorney an opportunity to present a statement and allowed him to distribute documents to board members. The BRRWD approved Project No. 77 in September 2015. The BRRWD's findings and order on Project No. 77 also classified appellant's dike as "illegal." Appellant appealed the BRRWD's final order to the district court under Minn. Stat. §§ 103D.535, 103E.095, and brought accompanying claims under the federal and state constitutions and 42 U.S.C. § 1983 (2012). Appellant later sold the 4.6 acres contemplated for condemnation to Minch, and the parties stipulated to a dismissal of appellant's appeal from the order approving Project No. 77.¹ Appellant's civil claims against the BRRWD and its individual members remained.

Respondents moved for summary judgment. The original district court judge (prior judge) assigned to the case denied this motion on all three of appellant's claims, finding that genuine issues of material fact existed. In July 2017, respondents appealed to this court from the prior judge's order disqualifying their attorney. See Norby v. Buffalo-Red River Watershed Dist., No. A17-1029, 2018 WL 1462208 (Minn. App. Mar. 26, 2018). Following our reversal of that disqualification order, the case was reassigned to a differentjudge (successor judge) because of the prior judge's retirement. The successor judge issued an amended scheduling order in October 2018, requiring the parties to file all dispositive motions before December 17, 2018. Respondents renewed their motion for summary judgment, which the successor judge granted on all claims. This appeal followed.

DECISION

I. Successor Judge's Reversal of Prior Judge's Decision

Appellant first argues that the successor judge erred in deciding to reconsider the prior judge's denial of respondents' summary-judgment motion. Respondents counter that the successor judge properly exercised her discretion because the prior judge's ruling was clearly erroneous. The scope of a successor judge's authority to perform judicial duties presents a legal question subject to de novo review. Kornberg v. Kornberg, 542 N.W.2d 379, 384 (Minn. 1996).

Both parties rely on this court's opinion in Kornberg v. Kornberg, where we said that "[a] successor judge may reverse a prior decision only if the successor judge believes the prior decision is clearly erroneous or unjust, or when a substantial change occurs in the essential facts, the evidence, or the applicable law." 525 N.W.2d 14, 18 (Minn. App. 1994), aff'd, 542 N.W.2d 379 (Minn. 1996). But it is not clear that this is the proper standard. For example, in its Kornberg opinion, the Minnesota Supreme Court did not qualify a successor judge's ability to reconsider a prior judge's ruling on the existence of new facts or a belief that the prior decision was clearly erroneous. 542 N.W.2d at 384-86. Rather, the court determined that "[p]arties should not be denied reconsideration of a predecessor judge's ruling by a successor judge if reconsideration by the judge who made the originalruling would have been permissible." Id. at 385. Kornberg interpreted the phrase "other disability" in Minn. R. Civ. P. 63.01 to include a judge's retirement from the bench. Id. at 384-85. But Kornberg centered on a successor judge's reconsideration of the prior judge's decision to vacate the parties' negotiated judgment and decree, while this case involves the reconsideration of a summary-judgment decision. Id. at 383.

In Invest Cast, Inc. v. City of Blaine, this court held that the law-of-the-case doctrine does not prevent a district court from granting a second motion for summary judgment after first denying a prior motion. 471 N.W.2d 368, 370 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991). While Invest Cast seemed to involve the same district court judge reversing its own prior ruling, its reasoning translates here. Appellant cites no Minnesota authority prohibiting a successor judge from revisiting a prior judge's ruling, and we cannot find any. In fact, district courts possess inherent authority to grant summary judgment sua sponte. Del Hayes & Sons, Inc. v. Mitchell, 230 N.W.2d 588, 591-92 (Minn. 1975). A successor judge should proceed cautiously when reviewing a prior judge's ruling on a summary-judgment issue. That said, we discern no error in the successor judge's decision to revisit the summary-judgment issue here.

II. Summary Judgment

This is an appeal from a grant of summary judgment, which is appropriate when the movant demonstrates that no genuine issue exists as to any material fact and they are entitled to judgment as a matter of law. Minn. R. Civ. P. 56.01.² A summary-judgmentdecision is reviewed de novo to determine whether any genuine issues of material fact exist and whether the district court properly applied the law to the facts. Capistrant v. Lifetouch Nat'l Sch. Studios, Inc., 916 N.W.2d 23, 27 (Minn. 2018). "In conducting this review, we view the evidence in the light most favorable to the nonmoving party . . . and resolve all doubts and factual inferences against the moving parties." Fenrich v. The Blake School, 920 N.W.2d 195, 201 (Minn. 2018) (quotation omitted). A fact is material if its resolution will affect the outcome of the case. Zappa v. Fahey, 245 N.W.2d 258,...