Miller-Lagro v. Northern States Power Co.

566 N.W.2d 94, 1997 Minn. App. LEXIS 731, 1997 WL 370067
CourtCourt of Appeals of Minnesota
DecidedJuly 8, 1997
DocketNo. C2-97-168
StatusPublished

This text of 566 N.W.2d 94 (Miller-Lagro v. Northern States Power Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller-Lagro v. Northern States Power Co., 566 N.W.2d 94, 1997 Minn. App. LEXIS 731, 1997 WL 370067 (Mich. Ct. App. 1997).

Opinion

OPINION

SHORT, Judge.

After finding four of their shade trees cut to the ground, Heidi Miller-Lagro and Kent Lagro brought suit against Northern States Power Company and Asplundh Tree Company. On appeal from a grant of summary judgment, the Lagros argue the trial court abused its discretion in denying them a continuance and erred in granting summary judgment against them.

FACTS

One fall evening, the Lagros came home to bad news: a notice from Northern States Power Company (NSP) attached to the garage door handle of their Medicine Lake home, announcing in bold letters that “[t]ree trimming is REQUIRED,” and advising that “[mjaintaining proper tree clearance from the power lines is necessary.” The document indicated that NSP wished to remove four mature trees (two ash and two elm) from the boulevard in front of the Lagros’ house, and requested permission to do so. Because the trees were important to the Lagros for shade and privacy, Kent Lagro wrote on the form, “Trim only what is necessary. I don’t want anything cut down,” and replaced the notice on the garage door handle. He did not sign his name on the form’s signature line.

Upon returning home the next day, the Lagros were stunned to find the four trees cut to the ground. They later learned that an employee of Asplundh Tree Company, which contracted to trim and remove trees for NSP (collectively, the utility), had initially trimmed the trees only as needed to safely skirt the power lines. However, the As-plundh employee cut down the trees completely, leaving the logs on the property, after allegedly receiving authorization from a man who rented an apartment in the Lagros’ residence.

After the Lagros’ request for tree replacement fell on wooden ears, the Lagros brought suit in conciliation court. The conciliation court dismissed the Lagros’ action [96]*96on the basis of the utility's tree stump survey showing the trees to be within land dedicated by the subdivider for public street use. Stumped by the dismissal, the Lagros removed the case to state district court, where the utility again argued, in summary judgment proceedings, that the Lagros had no standing to sue because the trees were not on their property, but on the dedicated land. The Lagros responded to the motion without obtaining their own survey, believing Minn. Stat. § 561.04 protected their interest in the trees, irrespective of the ownership of the land. In the event the trial court found ownership of the land to be dispositive, the Lagros asked for a continuance.

The trial court denied the Lagros’ motion and ordered summary judgment against them, finding the Lagros had no standing to sue the utility for their loss because the trees were not located on the Lagros’ property.

ISSUES

I. Did the trial court abuse its discretion in refusing the Lagros a continuance to respond to the summary judgment motion?

II. Did the trial court err in construing Minn.Stat. § 561.04 to provide a cause of action only for owners of land from which trees are wrongfully removed?

ANALYSIS

The decision whether to grant a continuance is within the discretion of the trial court, and we will not reverse the trial court’s ruling absent a clear abuse of that discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn.1977); see Minn. R. Civ. P. 56.06 (providing for continuance for nonmov-ant to respond to summary judgment motion). On appeal from summary judgment, this court determines whether genuine issues of material fact exist and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990); see Minn. R. Civ. P. 56.03 (setting forth trial court standard on summary judgment motion). Statutory construction' presents a legal question, which we review de novo. Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

I.

Trial courts should grant continuances liberally, particularly when the non-movant has had insufficient time to conduct discovery. Rice v. Perl, 320 N.W.2d 407, 412 (Minn.1982); see Minn. R. Civ. P. 56.06 (permitting trial court to grant continuance when party opposing summary judgment cannot present facts essential to justify party’s opposition). However, a party’s desire to conduct discovery that could have been conducted earlier is insufficient justification for a continuance. 2A David F. Herr & Roger S. Haydock, Minnesota Practice § 56.35 (2d ed.1985).

The Lagros argue the trial court abused its discretion by denying them a continuance. We decline to go out on such a limb. It is undisputed the Lagros had sufficient time to obtain their own tree stump survey. However, they intentionally declined to seek expert testimony regarding the location of the trees, believing it immaterial to the application of Minn.Stat. § 561.04 (1996). The Lagros’ chosen strategy necessarily included the risk that failure to obtain an opposing survey would prove fatal to their opposition of the utility’s motion for summary judgment. Under these circumstances, we cannot say the trial court abused its discretion by refusing the Lagros a continuance.

II.

The legislature supplied a statutory remedy for the wrongful removal of trees in Minn.Stat. § 561.04, which provides:

Whoever without lawful authority cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise injures any tree, timber, or shrub, on the land of another person, or in the street or highway in front of any person’s house, city lot, or cultivated grounds, or on the commons or public grounds of any city or town, or in the street or highway in front thereof, is liable in a civil action to the owner of such laud, or to such city or [97]*97town, for treble the amount of damages which may be assessed therefor * * *.

(Emphasis added.) The first clause of the statute provides a cause of action to the owner of land from which trees are wrongfully removed. In addition, by virtue of the provision for trees cut down “in the street or highway in front of any person’s house,” the statute also affords a cause of action when a wrongdoer cuts down a tree in the area dedicated to street or highway use in front of a person’s house. By its plain language, Minn.Stat. § 561.04 protects the Lagros’ interest in the shade trees on the boulevard in front of their residence, irrespective of whether the trees were located within the couple’s property line. See Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (providing only plain language may be considered in construction of unambiguous statute).

This construction is in accord with the common law recognition of a homeowner’s interest in the trees in front of his or her premises. See St. Paul Realty & Assets Co. v. Tri-State Tel. & Tel. Co., 122 Minn. 424, 425-26, 142 N.W.

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Related

Hibbing Education Ass'n v. Public Employment Relations Board
369 N.W.2d 527 (Supreme Court of Minnesota, 1985)
Tuma v. Commissioner of Economic Security
386 N.W.2d 702 (Supreme Court of Minnesota, 1986)
Rice v. Perl
320 N.W.2d 407 (Supreme Court of Minnesota, 1982)
Twin Ports Convalescent, Inc. v. Minnesota State Board of Health
257 N.W.2d 343 (Supreme Court of Minnesota, 1977)
Dunshee v. Douglas
255 N.W.2d 42 (Supreme Court of Minnesota, 1977)
Thayer v. American Financial Advisers, Inc.
322 N.W.2d 599 (Supreme Court of Minnesota, 1982)
Pomush v. McGroarty
285 N.W.2d 91 (Supreme Court of Minnesota, 1979)
State Ex Rel. Cooper v. French
460 N.W.2d 2 (Supreme Court of Minnesota, 1990)
Brooks v. Bess
195 A. 361 (Supreme Judicial Court of Maine, 1937)
Adams v. Syracuse Lighting Co.
137 A.D. 449 (Appellate Division of the Supreme Court of New York, 1910)
St. Paul Realty & Assets Co. v. Tri-State Telephone & Telegraph Co.
142 N.W. 807 (Supreme Court of Minnesota, 1913)

Cite This Page — Counsel Stack

Bluebook (online)
566 N.W.2d 94, 1997 Minn. App. LEXIS 731, 1997 WL 370067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-lagro-v-northern-states-power-co-minnctapp-1997.