Howell v. City of Minneapolis

• Decision Date: 22 April 2013
• Docket Number: A12-1761
• Parties: Elizabeth Howell, Appellant, v. City of Minneapolis, Respondent.
• Court: Minnesota Court of Appeals

Elizabeth Howell, Appellant,

v.City of Minneapolis, Respondent.

A12-1761

STATE OF MINNESOTA IN COURT OF APPEALS

Filed April 22, 2013

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

Hennepin County District Court

File No. 27CV1122208

Kristin B. Rowell, Anthony Ostlund Baer & Louwagie P.A., Minneapolis, Minnesota (for appellant)

Susan L. Segal, Minneapolis City Attorney, Darla J. Boggs, Lee C. Wolf, Robin H. Hennessy, Assistant City Attorneys, Minneapolis, Minnesota (for respondent)

Considered and decided by Kirk, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

UNPUBLISHED OPINION

STONEBURNER, Judge

Appellant homeowner challenges dismissal of her lawsuit against respondent city (1) seeking a declaratory judgment that homeowner is not responsible for repair of a retaining wall located near her property; (2) asserting a claim of abuse of process; and(3) seeking an award of attorney fees. Because a material fact question exists with regard to responsibility for repair of the wall, we reverse the grant of summary judgment dismissing appellant's request for a declaratory judgment that (1) appellant is not responsible for the retaining wall; (2) appellant need not repair the retaining wall; (3) respondent must repair or replace the retaining wall; and (4) respondent cannot charge appellant for repair or replacement of the wall. Because the district court did not err in granting summary judgment on appellant's abuse-of-process claim and because the request for attorney fees is dependent on that claim, we affirm summary judgment on those claims.

FACTS

Appellant Elizabeth Howell owns a home in respondent City of Minneapolis (city) located at 4753 Drew Avenue South, on the corner of Drew Avenue South and West 48th Street. The legal description of Howell's property is "Lot 14, Block 11, Kensington, Hennepin County, Minn., according to the recorded plat thereof." The original plat map of the Kensington Addition, dated May 1887, states that the original owners of the land "donate and dedicate to the public use forever all streets as shown on the accompanying plat." As platted, 80 feet (40 feet on each side of the center line) is designated as West 48th Street, and the south side of Howell's property ends where the area designated for the street begins.

Currently, the paved portion of West 48th Street is 36 feet wide with an eight-foot-wide boulevard, six-foot-wide sidewalk, and eight-foot strip of land on both sides of the street. A substantial retaining wall runs along the south side of Howell's property,between a portion of the strip of right-of-way that is adjacent to the property and the sidewalk. The wall turns 90 degrees north, running perpendicular to the sidewalk and along Howell's driveway and ends at her garage, which appears to be dug into the hillside. The record does not contain the dimensions of the wall, but photographs show that the portion adjacent to Howell's driveway is nearly as tall as her garage. The wall provides support to the soil north of the sidewalk and west of Howell's driveway.

In August 2008, the city inspected the retaining wall and determined that it violated the Minneapolis Code of Ordinances (MCO). The city asked Howell to "[r]epair or replace the retaining wall at this property in a professional manner" and cited MCO § 244.1590 as the support for its position. Between September 2008 and November 2011, Howell had more than ten interactions with the city in which the city continuously insisted that it was her responsibility to repair the wall and Howell continuously asked for the legal authority supporting that position, which was never fully provided by the city.

In November 2011, Howell sued the city seeking a declaratory judgment regarding responsibility for the retaining wall, asserting a claim of abuse of process, and seeking attorney fees. Specifically, Howell sought a declaratory judgment:

1. Declaring that: Howell does not own the property on which the retaining wall sits at the southwest corner of 48th Street and Drew Avenue South, there is no right-of-way with respect to Howell's [p]roperty and the retaining wall, Howell is not an abutting property owner to the retaining wall, Howell is not an adjacent property owner to the retaining wall, and Howell's [p]roperty does not benefit from the retaining wall.

2. Declaring that: Howell is not responsible financially or otherwise for any repairs made to the retaining wall located at the southwest corner of 48th Street and Drew Avenue South, the [c]ity's issuance of the administrative citations to Howellwas improper, the [c]ity's threat to attach baseless unpaid administrative fees to her taxes was improper, and the [c]ity pursued Howell as responsible for the retaining wall without a proper basis in law or fact.

The parties made cross-motions for summary judgment. After the hearing on the motions, the district court granted the city's motion for summary judgment on all claims and dismissed Howell's claims with prejudice. This appeal followed.

DECISION

I. Summary judgment standard of review

"On appeal from summary judgment, we must review the record to determine whether there is any genuine issue of material fact and whether the district court erred in its application of the law." Dahlin v. Kroening, 796 N.W.2d 503, 504 (Minn. 2011). When the facts are not in dispute, we review the district court's application of law de novo. In re Collier, 726 N.W.2d 799, 803 (Minn. 2007). We "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). No genuine issue of material fact for trial exists where "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) (quotation omitted).

II. Declaratory judgment on responsibility for repair of retaining wall

MCO § 244.1590 (2013) requires that "[e]very fence and retaining wall on or adjacent to residential property shall be kept well mended and in good repair, consistent with the design thereof." Because the ordinance is drafted in the passive voice, it doesnot identify who is responsible for repair, but both parties and the district court construe the ordinance to place the responsibility for repair on the owner of the residential property to which a retaining wall is adjacent. But Howell argues that because the retaining wall is located in the right-of-way dedicated exclusively to the city, eight feet away from her property line, the retaining wall is neither on nor adjacent to her property and the ordinance does not make her responsible for repairs. She argues that the district court misconstrued the ordinance to conclude that the wall is on and adjacent to her property, making her responsible for repairs.

A. Construction of ordinances

"The rules governing statutory interpretation are applicable to the interpretation of city ordinances." Cannon v. Minneapolis Police Dept., 783 N.W.2d 182, 192-93 (Minn. App. 2010) (citing Yeh v. County of Cass, 696 N.W.2d 115, 128 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005)). As those rules are applied to the interpretation of city ordinances, "words and phrases are construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a special meaning . . . are construed according to such special meaning or their definition." Minn. Stat. § 645.08(1) (2012). And as this concept specifically applies to the MCO, "[w]ords and phrases used in [the MCO] shall be construed in their plain, ordinary and usual sense, except that technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." MCO § 3.10 (2013).

B. Definition of "adjacent to"

Howell argues that construing "adjacent to" to refer to a wall that is eight feet from her property line is contrary to the rule of construction that the city is presumed to intend that the entire ordinance be effective as written and that it does not intend an unreasonable or absurd result. See Minn. Stat. § 645.17(1), (2) (2012) (as applied to city ordinances through Minn. Stat. § 645.08(1), courts may presume that the city council "does not intend a result that is absurd, impossible of execution, or unreasonable" and that it does "intend[] the entire statute to be effective and certain"). Howell argues that the district court should have defined "adjacent to" in MCO § 244.1590 as it is used in MCO § 244.1600 (2013), which applies to fences "adjacent to" property lines: "Every fence hereafter erected within five (5) feet of a property line shall be erected in the following manner . . . ." (Emphasis added). We disagree.

Neither party asserts that "adjacent to" is a technical term, therefore we apply the common and approved usage of the word. See Minn. Stat. § 645.08(1). Black's Law Dictionary defines "adjacent" as "[l]ying near or close to, but not necessarily touching." Black's Law Dictionary 46 (9th ed. 2009). The American Heritage Dictionary defines "adjacent" as "1. Close to; lying near . . . . 2. Next to; adjoining." American Heritage Dictionary 22 (3rd ed. 1992). MCO § 244.1600 regulates future fences that will be built "adjacent to" (within five feet of) a property line. It is clear from the language of MCO § 244.1600 that the city has some specific interest in regulating new fences built within five feet of a property line, but nothing in the ordinances indicates that the city intendsthe "within five feet" provision in this ordinance to limit the definition of "adjacent to" in all other ordinances.

The supreme court has stated that "[a]djacent does not necessarily mean adjoining or contiguous or abutting" and that "[t]he word is not inconsistent with the idea...