COM'R OF NATURAL RES. v. NICOLLET COUNTY, C9-01-321.

• Decision Date: 21 August 2001
• Docket Number: No. C9-01-321.,C9-01-321.
• Citation: 633 N.W.2d 25
• Parties: COMMISSIONER OF NATURAL RESOURCES, Respondent, v. NICOLLET COUNTY PUBLIC WATER/WETLANDS HEARINGS UNIT, Respondent, and Gerhard Mertesdorf and William Bode, Objectors. Judy V. Bode and Linda I. Bode, Appellants, v. Minnesota Department of Natural Resources, et al., Respondents.
• Court: Minnesota Court of Appeals

633 N.W.2d 25

COMMISSIONER OF NATURAL RESOURCES, Respondent, v. NICOLLET COUNTY PUBLIC WATER/WETLANDS HEARINGS UNIT, Respondent, and Gerhard Mertesdorf and William Bode, Objectors.

Judy V. Bode and Linda I. Bode, Appellants, v. Minnesota Department of Natural Resources, et al., Respondents.

No. C9-01-321.

Court of Appeals of Minnesota.

August 21, 2001.

Mike Hatch, Attorney General, Craig L. Engwall, Gregory J. Schaefer, Assistant Attorneys General, St. Paul, MN, (for respondent).

Richard Brian Bates, St. Paul, MN, (for appellant).

Considered and decided by HALBROOKS, Presiding Judge, WILLIS, and HANSON, Judges.

OPINION

HALBROOKS, Judge

Appellants in this matter are the daughters of William Bode, the original landowner. A portion of appellants' land was determined to be a protected wetland by a 1986 district court judgment reversing a prior administrative decision. Appellants' earlier challenge to that judgment, based on lack of subject-matter jurisdiction, was unsuccessful.

Appellants subsequently moved to vacate the 1986 judgment of the district court based on lack of personal jurisdiction over their father, alleging that the notice of hearing on the appeal to the district court violated due-process requirements. The district court denied the motion, finding that the court had jurisdiction over appellants' father through his participation in the administrative proceedings and that appellants waived the issue of personal jurisdiction through their subsequent participation in ongoing administrative proceedings regarding the wetland. Because we conclude that the notice of hearing did not violate Bode's due-process rights and moreover, even if it had, appellants have waived the issue of personal jurisdiction, we affirm.

FACTS

In 1976 and again in 1979, the Minnesota Legislature directed the Commissioner of the Department of Natural Resources (DNR) to inventory the state's public waters and to designate public waters and wetlands. The DNR inventoried the appellants' farm and determined that a portion of the land met the definition of "wetlands." ("Unnamed Wetland No. 52-26"). The effect of the wetland designation is to restrict the landowner's right to drain or fill.

In August 1980, William Bode (Bode) and the adjoining land owner, John Mertesdorf, timely appealed the DNR's classification to the Nicollet County Hearings Unit.¹ Bode and Mertesdorf were represented by the same attorney. A hearing was held on August 18, 1980, and Bode, accompanied by counsel, testified in opposition to the classification. The hearings unit agreed and issued an order September 10, 1980, concluding that the DNR had improperly classified part of the Bode farm as a wetland.

The DNR appealed the hearings-unit order, but filed the appeal one day late. The notice of appeal was properly served on Bode's counsel of record. Bode did not make any objection on the grounds that the district court lacked subject-matter or personal jurisdiction. The following year, in 1981, despite being warned not to drain the land during the appeals process, Bode installed a tile drainage system in the area designated as a wetland.

In the spring of 1986, after the appeal to the district court had been pending for several years, the DNR sent Bode a notice of hearing on its appeal together with DNR's supporting memorandum. The notice was addressed to Bode and Mertesdorf, but it did not list either individual as a party to the action. The notice stated that "petitioner [DNR] will seek reversal of the Nicollet County Hearings Unit's Order concerning Zwinggi Lake (52-12) and Unnamed Wetland No. 52-26W." In the interim, Bode had discharged his attorney.

Bode did not attend the June 2, 1986 hearing, but Mertesdorf did. The district court reversed the hearings unit and entered judgment on December 17, 1986. Bode appealed this determination, but his appeal was dismissed as untimely. Following the 1986 judgment, years of legal proceedings ensued between the Bodes and the DNR regarding the DNR's efforts to restore the wetland located on the Bode farm.²

In 1989, the DNR ordered Bode to restore the wetland by removing the tile drainage system. Bode did not challenge or obey the order, and in November 1991, the court authorized the DNR to enter the land and perform restoration. Appellants Judy and Linda Bode filed suit against the DNR, but the action was dismissed because the court held that as remaindermen, they had no possessory rights until the termination of their parents' life estate. This court affirmed the district court. Bode v. Minnesota Dep't of Natural Resources, No. C4-92-2033, 1993 WL 121266 (Minn.App. Apr.13, 1993).

In March 1996, appellants brought a subsequent action in district court for damages resulting from the DNR's destruction of part of their tile drainage system. The DNR moved for summary judgment and the court granted the motion by an order dated September 18, 1997.

In 1998, in conjunction with the 1996 action, appellants made a motion under Minn. R. Civ. P. 60.02(d), arguing that the district court's 1986 judgment was void because the DNR's 1980 appeal had been untimely and, therefore, the court had lacked subject-matter jurisdiction to hear the appeal. The district court granted appellants' motion to vacate, but this court reversed. Bode v. Minnesota Dep't of Natural Resources, 594 N.W.2d 257 (Minn.App.1999). The Minnesota Supreme Court affirmed this court's decision, holding that the district court erred in granting the motion to vacate because a collateral attack on the judgment was procedurally improper. Bode v. Minnesota Dep't of Natural Resources, 612 N.W.2d 862, 866 (Minn.2000) (Bode I). The court went on to analyze the motion as a direct attack on the merits. The court deviated from the "traditional rule" that allowed for motions to vacate under rule 60.02(d) for lack of subject-matter jurisdiction to be filed at any time and mandated that such a motion be made within a "reasonable time." The court recognized that

[i]t would be inequitable and contrary to the general desirability that judgments be final to vacate this judgment after such reliance over such a lengthy period of time. Therefore, we conclude that consideration of all attendant circumstances mandates our holding that the Bodes' 1998 Rule 60.02(d) motion attacking the 1986 judgment or any subsequent motion directly attacking the 1986 judgment does not fall within the reasonable time limits of the Rule.

Id. at 870 (quotation omitted).

In October 2000, appellants filed another motion to vacate the 1986 judgment as void under Minn. R. Civ. P. 60.02(d). This time, appellants argued that the court lacked personal jurisdiction over Bode because the DNR's notice of appeal was constitutionally inadequate. After a hearing, the district court denied the motion. The court did not address appellants' due-process argument, but instead held that the court had acquired personal jurisdiction over Bode through his participation in the hearings-unit decision and that appellants waived the defense of lack of personal jurisdiction by "participating in proceedings regarding the wetland and by unreasonably delaying their motion." This appeal follows.

ISSUES

1. Did the 1986 notice to Bode violate due process?

2. Did appellants waive the issue of personal jurisdiction by participating in other proceedings in this case?

ANALYSIS

I.

Appellants argue that the notice received for the 1986 hearing was constitutionally inadequate because it violated Bode's due-process right to notice. "This court reviews de novo the procedural due process afforded a party." Zellman ex rel. M.Z. v. Independent Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn.App.1999) (citation omitted), review denied (Minn. July 28, 1999).

Due process requires that deprivation of property be preceded by notice and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (citation omitted). The concept of right to notice is that the right to be heard "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The degree of notice required does not follow one specific, technical definition but rather varies "with the circumstances and conditions of each case." In re Christenson, 417 N.W.2d 607, 611 (Minn.1987) (citation omitted). For example, the supreme court has held that notice of public hearings must state that a property owner has the right to appeal and must indicate the time in which the appeal must be taken. Klapmeier v. Town of Center of Crow Wing County, 346 N.W.2d 133, 136 (Minn.1984). In another case, the supreme court found that published notice of the system mapping the state's wetlands—the same type of notice Bode received in 1980—was constitutional. Christenson, 417 N.W.2d at 613; see also In re Kindt, 542 N.W.2d 391, 394-95 (Minn.App.1996) (finding notice of termination of medical-assistance benefits adequate where notification acknowledged that the proposed benefit reduction was total, specified benefit-termination date, and cited reason for termination).

Based on Christenson, the notice Bode received for the 1980 wetland classification and designation was constitutionally adequate. Appellants do not dispute this. They also concede that the notice was properly served and timely. But appellants argue that the 1986 notice was inadequate to grant the court personal jurisdiction because it did not specifically inform Bode that a reversal of the hearings-unit decision would result in the removal of his drainage system. Appellants argue that the failure to expressly warn him of the threat to his property interest is unconstitutional.

Appellants rely on Schulte v. Transportation Unltd., Inc., 354 N.W.2d 830, 832, 835 (Minn.1984), that questioned whether a...