Jay Nygard v. Penny Rogers

• Court: Court of Appeals of Minnesota
• Decided: November 16, 2015
• Docket: A14-2175
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-2175

Jay Nygard, et al., Appellants,

vs.

Penny Rogers, et al., Respondents.

Filed November 16, 2015 Affirmed Chutich, Judge

Hennepin County District Court File No. 27-CV-13-3138

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for appellants)

Robert H. Tennant, III, Meghan A. Cooper, Stringer & Rohleder, Ltd., St. Paul, Minnesota (for respondents)

Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin,

Judge.

UNPUBLISHED OPINION

CHUTICH, Judge

Appellants Jay and Kendall Nygard (the Nygards) appeal the district court’s denial

of their motion for a new trial. Because the district court properly found no grounds upon

which to order a new trial, we affirm. FACTS

The Nygards’ appeal arises from a lawsuit they filed against their next-door

neighbors, Penny Rogers and Peter Lanpher, to quiet title to a sliver of land between their

respective properties. Respondents Rogers and Lanpher countersued the Nygards for,

among other claims, nuisance arising out of the location of a wind turbine. This appeal

concerns only the nuisance claim.

Jay Nygard is a green-energy advocate. Between September 2010 and March

2011, he installed a wind turbine near the boundary line dividing the two properties.

Rogers and Lanpher objected to the installation of the turbine. Based on Nygard’s

experience as a city council member, he believed that he did not need a permit to install

the wind turbine, and he did not obtain one.1

After the Nygards had installed the turbine, they applied for a permit, which the

City of Orono denied. Independent of the instant lawsuit, the Nygards sued the City of

Orono in district court to review the denial of their permit application.

In February 2013, the Nygards sued Rogers and Lanpher, asserting claims for

adverse possession and boundary by practical location, and Rogers and Lanpher

countersued.

In May 2013, following the Nygards’ unsuccessful lawsuit against the City of

Orono, the district court in that case ordered the Nygards to remove the turbine. One

1 The Nygards now have a second turbine attached to their home and a third, currently nonoperational, turbine near the lakeshore on their property. This appeal concerns only the large turbine near the neighbors’ boundary line.

2 month before trial in this lawsuit, the district court in the City of Orono lawsuit found the

Nygards in constructive civil contempt of court for failing to remove the turbine.

At trial in this matter, Rogers and Lanpher testified to the wind turbine’s effects on

their home. Lanpher testified that the turbine was the first thing they saw out their

master-bedroom window. Though the original turbine was 22 feet tall—with 9-foot

blades that extend to the surveyed lot line—Lanpher stated that Jay Nygard replaced the

original turbine with a 30-foot turbine. Rogers and Lanpher testified that the turbine was

loud and created a strobe-light effect, casting flashes of light directly into several rooms

in their home and onto their deck.

In the Nygards’ defense to the nuisance claim, Jay Nygard testified that he planned

to remove the turbine to comply with the district court’s order in the lawsuit against the

City of Orono. The Nygards’ trial counsel argued that, because the Nygards intended to

remove the turbine, it could not amount to a nuisance.

The district court ruled in favor of Rogers and Lanpher on the nuisance claim and

ordered the Nygards to remove the wind turbine. The district court found that the

turbine’s strobe-light effect on Rogers and Lanpher’s living spaces was an ongoing

interference with their enjoyment of the property. It concluded that there was no

apparent way to operate the wind turbine without creating the effects about which Rogers

and Lanpher testified, which justified removing the turbine. But, given the preexisting

3 order to remove the turbine in the City of Orono lawsuit, the district court noted that its

order regarding the turbine may be moot.2

The Nygards obtained new counsel and filed a motion for a new trial or relief from

judgment on the nuisance claim. See Minn. R. Civ. P. 59.01(a), 60.02(f). In response,

Rogers and Lanpher requested that the district court order damages related to the ongoing

presence of the wind turbine. The district court concluded that the majority of the

Nygards’ motion for a new trial or relief from judgment relied on a new argument

concerning the effect of a statutory scheme governing wind-energy-conversion systems,

which was not relevant to a private nuisance case. See Minn. Stat. 216F.02 (2014).

Moreover, it noted that the Nygards did not argue the application of the wind-energy

statute at trial; nor had they demonstrated how the wind-energy statute applied to a

private nuisance case. The district court concluded that the Nygards alleged no trial

irregularities and provided no reasons justifying a new trial. See Minn. R. Civ. P.

59.01(a), 60.02(f). Ultimately, the district court denied the Nygards’ motion for a new

trial or relief from judgment and deferred ruling on Rogers and Lanpher’s damages claim.

The district court then determined that the Nygards had substantially complied

with its order to remove the turbine in March 2015. The district court later denied Rogers

2 This court recently affirmed the district court’s order in the City of Orono lawsuit. See City of Orono v. Nygard, No. A14-1062, 2015 WL 2467194, at *7–9 (Minn. App. June 1, 2015). After affirming the district court’s subject matter jurisdiction over the Nygards’ permitting dispute with the City of Orono, this court concluded, “[a]s to this turbine, the matter is settled: the Nygards’ decision to construct the turbine without receiving the necessary permit from Orono means that the wind turbine must be removed from their property.” Id. at *8.

4 and Lanpher’s damages claim in April 2015. The Nygards appeal the denial of their

motion for a new trial.

DECISION

The Nygards contend that the district court deprived them of a fair trial and thus

improperly denied their motion for a new trial. We disagree.

As a preliminary matter, Rogers and Lanpher reiterate their claim for damages

related to the continued presence of the wind turbine after the district court ordered that it

be removed. Because Rogers and Lanpher did not file a notice of related appeal

following the district court’s denial of their damages claim, their damages claim is not

properly before this court. See City of Ramsey v. Holmberg, 548 N.W.2d 302, 305

(Minn. App. 1996) (“[A] party must file a notice of review to challenge the district court's

ruling on a particular issue.”), review denied (Minn. Aug. 6, 1996).

Rogers and Lanpher also argue that this appeal is moot in light of our decision

finalizing the district court’s order to remove the turbine in the Nygards’ permitting

dispute with the City of Orono and because the Nygards have removed the turbine. See

City of Orono, 2015 WL 2467194, at *7–8. Mootness doctrine “requires that we decide

only actual controversies and avoid advisory opinions.” In re McCaskill, 603 N.W.2d

326, 327 (Minn. 1999). When a decision on the merits is no longer necessary or an

award of effective relief is no longer possible, an appellate court should dismiss an appeal

as moot. Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015) (citing In re

Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997)). We ordinarily dismiss an appeal as

5 moot “when a dispute between two litigants is settled or in some other way resolved

during the pendency of an appeal.” State v. Rud, 359 N.W.2d 573, 576 (Minn. 1984).

But the mootness doctrine is not a mechanical rule that we invoke automatically;

rather, it is a “flexible discretionary doctrine.” Dean, 868 N.W.2d at 4 (citing Rud, 359

N.W.2d at 576). And exceptions to the doctrine exist. See Kahn v. Griffin, 701 N.W.2d

815, 821 (Minn. 2005) (issues capable of repetition, yet likely to evade review); In re

McCaskill, 603 N.W.2d at 327 (issues giving rise to collateral consequences); Rud, 359

N.W.2d at 576 (issues that are functionally justiciable and of statewide importance).

Even assuming, without deciding, that an exception to the mootness doctrine may

apply, the Nygards’ contention that the district court improperly denied their motion for a

new trial fails on the merits.

Trial courts should grant motions for a new trial cautiously, sparingly, and “only

in furtherance of substantial justice.” Leuba v. Bailey, 251 Minn. 193, 194, 88 N.W.2d

73, 74 (1957). Grounds for a new trial include any “[i]rregularity in the proceedings of

the court . . . or any order or abuse of discretion, whereby the moving party was deprived

of a fair trial.” Minn. R. Civ. P. 59.01(a). The trial court may also order a new trial or

relief from judgment for “[a]ny other reason justifying relief from the operation of the

judgment.” Minn. R. Civ. P. 60.02(f). “The decision to deny a motion for a new trial

rests in the discretion of the district court, and [appellate courts] will reverse that decision

only for a clear abuse of that discretion.” Frazier v. Burlington N. Santa Fe Corp., 811

N.W.2d 618, 629 (Minn. 2012).

6 The Nygards argue that the district court deprived them of a fair trial.3 They

maintain that the district court overlooked Minnesota Statutes section 216F.02, which

they claim establishes their statutory right to maintain the wind turbine and which the

district court should have reconciled with the nuisance claim.4 The Nygards also contend

that a district court order interpreting section 216F.02 implemented a sea change in the

law of wind turbines, creating applicable new precedent. We reject these arguments.

The Nygards allege no irregularity or other abuse of discretion to justify a new

trial. See Minn. R. Civ. P. 59.01(a), 60.02(f). Instead, the Nygards appear to assert that

our judicial system requires a district court to present arguments on a litigant’s behalf.

This assertion mischaracterizes the district court’s role in our adversarial legal system.

Moreover, a district court’s interpretation of a statute is not binding on even a sister

district court, much less this court, and thus cannot qualify as a “sea change” in the law.

See Boutin v. LeFleur, 591 N.W.2d 711, 714 (Minn. 1999); cf. Camreta v. Greene, 131

S. Ct. 2020, 2033 n.7 (2011) (“A decision of a federal district court judge is not binding

precedent in either a different judicial district, the same judicial district, or even upon the

same judge in a different case.”) (quotation omitted).

3 On appeal, the Nygards advance no procedural grounds to support their claim that they were denied a fair trial. Before the district court, however, they moved for a new trial under rules 59.01(a) and 60.02(f). Accordingly, we analyze their argument under the framework of rules 59.01(a) and 60.02(f). 4 That section states “[a]ny person may construct [a small wind-energy-conversion system] without complying with . . . this chapter.” Minn. Stat. § 216F.02 (b) (2014). The Nygards’ counsel conceded at the new-trial motion hearing that they raised the application of section 216F.02 for the first time in their motion for a new trial.

7 Finally, the statute the Nygards proffer to support their argument was enacted in

1995, well before they determined a trial strategy. 1995 Minn. Laws ch. 203, § 2, at 984.

And, even if the Nygards had timely asserted section 216F.02 on their own behalf, their

wind turbine did not conform to the local ordinances governing siting and construction

upon which construction is contingent. See City of Orono, 2015 WL 2467194, at *1–2,

*8. Absent compliance with local regulations, the turbine is unlawful. See Minn. Stat.

§ 216F.02 (c) (2014) (“Nothing in this chapter shall preclude a local governmental unit

from establishing requirements for the siting and construction of [small wind-energy-

conversion systems].”)

Accordingly, we agree with the district court’s thorough, well-reasoned order.

Because the Nygards failed to assert a procedural irregularity or any other reason

justifying relief from the judgment, the district court properly denied the Nygards’

Affirmed.