RK Midway, LLC v. Metro. Council
| Decision Date | 23 January 2017 |
| Docket Number | A16-0530 |
| Parties | RK Midway, LLC, et al., petitioners, Appellants, v. Metropolitan Council, Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
Affirmed
Ramsey County District Court
Joseph M. Finley, Scott Harris, Calvin P. Hoffman, Stinson Leonard Street LLP, Minneapolis, Minnesota (for appellants)
Barbara M. Ross, Ashleigh M. Leitch, Best & Flanagan LLP, Minneapolis, Minnesota (for respondent)
Peter G. Mikhail, Kennedy & Graven, Chartered, Minneapolis, Minnesota (for amicus curiae Minnesota Eminent Domain Counsel Association)
Jon W. Morphew, Morphew Law Office, P.L.L.C., Minneapolis, Minnesota; Kirk Schnitker, Schnitker Law Office, P.A., Spring Lake Park, Minnesota; and Bradley J. Gunn, Stuart Alger, Malkerson Gunn Martin, LLP, Minneapolis, Minnesota (for amicus curiae Minnesota Eminent Domain Institute)
Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold, Judge.
UNPUBLISHED OPINION
This mandamus appeal stems from the construction of the Central Corridor Light Rail Transit Project (CCLRT) in the Civil East segment of the project in Saint Paul, Minnesota. Appellants are property owners and seek review of the district court's decision granting summary judgment in favor of respondent Metropolitan Council (Met Council). Appellants argue that the district court erred in determining that no constitutional taking occurred when respondent's contractor damaged appellants' property. Because the contractor retained the right to control its work and employees, we conclude that the contractor was not respondent's agent and, therefore, not a government actor when it damaged appellants' property. Thus, we affirm summary judgment because no constitutional taking occurred.
Appellants RK Midway, LLC and REIN Midway Limited Partnership (collectively, Midway) own a parcel of land (the property) on which they operate the Midway Shopping Center with multiple tenants. The property is located on University Avenue in Saint Paul, Minnesota and contains "paved internal private drives," parking lots, and sits on approximately 23.45 acres of land. The western boundary of the property abuts Snelling Avenue and the eastern boundary abuts Pascal Avenue.
Met Council was designated as the "responsible public authority" for planning and constructing the CCLRT. See Minn. Stat. § 473.3994, subd. 1a (2016). The CCLRT, which spans an 11-mile strip and connects Saint Paul and Minneapolis, was divided into fourprimary construction contracts. One contract involved the Civil East segment, which spans six miles and is located in the Midway area of Saint Paul.
In June 2010, Walsh Construction Company (Walsh), which is not a party to this action, was awarded the construction contract for the Civil East segment. The contract between Walsh and Met Council included provisions allocating the parties' rights, responsibilities, and liability for any damages.
Walsh agreed to be "solely responsible for the means, methods, and techniques of construction, except for means, methods, or techniques expressly detailed on the [d]rawings or explicitly required by the [s]pecifications." (Emphasis added.) Walsh was additionally responsible for "supervis[ing], inspect[ing], and direct[ing]" the work under the contract and was "solely responsible for the means, methods, techniques, sequence, and procedures of construction."
On the other hand, the contract provided that Met Council retained the right to set the construction schedule, interpret the contract, reasonably object to Walsh's employees or subcontractors, approve Walsh's shop drawings and parking plan, order changes to the work, reject defective work and require Walsh to fix defective work at its own expense, inspect the construction sites, and refuse payment to Walsh upon specified conditions. The contract also provided that Met Council "will not supervise, direct, or have control or authority over, nor be responsible for, [Walsh's] means, methods, techniques, sequences, or procedures of construction."
Relevant to the issues in this appeal, Walsh also promised to conduct construction activities only within the properties "identified in and permitted by" the contract.Additionally, Walsh agreed to enforce this provision among its employees and agents. Met Council was responsible for providing "the lands upon which the [w]ork is to be performed" and for furnishing a 10-acre lot (Snelling Yard) that Walsh could use for staging, storage, and office areas. If Walsh needed additional space to conduct construction activities, Walsh agreed to be responsible for procuring additional land and access points.
If Walsh damaged adjacent property, the contract provided that Walsh assumed "full responsibility for damage to such area, or to the owner or occupant thereof or of adjacent areas, resulting from the performance of the [w]ork." Walsh also promised to "restore to original condition all property not designated for alteration" by the contract. Walsh further agreed to repair "[d]amage or disturbance to adjacent properties" at Walsh's expense. Finally, Walsh agreed to "indemnify, defend, and hold harmless [Met Council] . . . against claims, costs, losses, and damages caused by, arising out of, or resulting from the performance of the [w]ork."
Before Walsh began to perform under the contract, Met Council and the Minnesota Department of Transportation (MnDOT) worked together and initiated condemnation proceedings to acquire the property necessary to construct the CCLRT. MnDOT's petition was granted on February 7, 2011, and, specific to Midway's property, MnDOT and Met Council acquired 2,190 square feet for temporary construction easements. MnDOT also condemned an 80-foot wide, 6-mile long corridor down University Avenue for purposes of construction work.
Consistent with the parties' contract, Walsh submitted a parking plan designating the Snelling Yard for employee parking, and Met Council provided Walsh with theSnelling Yard for staging and with existing public roads for access to the site. Nonetheless, the parties agree that Walsh, without Midway's authorization, repeatedly conducted construction-related activities outside of the areas provided for in the contract. For purposes of summary judgment, Midway established that Walsh's conduct damaged Midway's property because, for example, it offered evidence that Walsh caused a water line on Midway's property to break and damage a sewer grate.
Midway conducted traffic surveys on June 30, 2011 and July 7, 2011 and observed Walsh vehicles make "85 trips through the [property]" and 148 trips through the property, respectively. In July 2011, Midway's property manager notified Met Council of "multiple trespasses" by dump trucks, loaders, semi-trucks, and cement trucks driving through the property and parking in the lots. The property manager also reported that muddy water was "being pumped into the private alley behind the [property]." Walsh additionally used a private alley behind the property to access the construction site.
After receiving complaints about Walsh's conduct, Met Council sent emails to Walsh on three separate dates in July 2011, requesting that the conduct stop. On July 28, 2011, because the conduct had not stopped, Met Council issued a nonconformance report to Walsh, and outlined Walsh's failure to work within the land specified in the contract. On August 2, 2011, a MnDOT project liaison observed several Walsh vehicles using property not provided for in the contract and the liaison notified Walsh immediately about the conduct. Met Council issued another nonconformance report to Walsh on October 18, 2011, because it had received complaints of Walsh construction vehicles parking in private lots and using private drives. Met Council received more complaints of Walsh using theproperty for access in the spring of 2012, and Met Council directed Walsh to post signs reading, "No Construction Vehicles." Met Council met with Walsh to discuss these complaints, and Walsh assured Met Council that it would comply with and enforce the contract terms. The parties agree that Walsh's conduct stopped sometime in fall 2012, after Walsh had substantially completed its work.
On December 23, 2014, two years after Walsh ceased work on the Civil East segment of the CCLRT, Midway filed a petition for an alternative writ of mandamus, requesting the district court to compel Met Council to initiate inverse condemnation proceedings regarding the property Walsh had taken and/or damaged during construction of the Civil East segment, or for Met Council to show cause. Minn. Stat. § 586.03. The parties filed cross-motions for summary judgment. The district court granted Met Council's motion for summary judgment, determining that it was undisputed that Walsh "regularly traversed" on Midway's property without the authorization of Midway or Met Council. Because Walsh was an independent contractor and not an agent of Met Council, the district court concluded that no de facto taking occurred. The district court additionally denied Midway's mandamus petition because Midway had an adequate remedy at law by suing Walsh in trespass. This appeal follows.
Midway argues that the district court erred in entering summary judgment after determining that no constitutional taking had occurred and that Midway had an adequate remedy at law. Because we agree with the district court's determination that noconstitutional taking occurred, we affirm summary judgment on that basis and need not decide whether Midway had an adequate remedy at law.
This court reviews "a district court's decision to grant summary judgment de novo to determine whether any genuine issue of material fact exists and whether the district court correctly applied the law." Citizens State Bank Norwood Young Am. v. Brown, 849...
To continue reading
Request your trial