Shortridge v. Daubney

400 N.W.2d 841

• Court: Court of Appeals of Minnesota
• Decided: April 17, 1987
• Docket: C1-86-1428, CX-86-1430
• Status: Published

Opinions

OPINION

WOZNIAK, Judge.

In 1986, respondents brought a summary judgment motion challenging the validity of a notice of hearing issued by the City of Maplewood prior to a special assessment hearing held in 1981. The trial court determined that the city’s notice of hearing was defective because it erroneously stated that appeals from the assessment must be brought within twenty (20) days after the adoption of the assessment rather than the thirty (30) days allowed under the statute. The court ruled that the defective notice deprived the city of jurisdiction to levy the assessment and that laches did not bar the challenge to the notice. The city appeals. We affirm.

FACTS

In 1981, Robert Berglund and Perry Shortridge owned Beaver Lake Estates, a mobile home park bordering on Maryland Avenue in Maplewood. During 1980 and 1981, the City of Maplewood made several public improvements along Maryland Avenue, including installing new water and sewer lines and making street repairs. The improvements were identified as Project No. 77-12. The city intended to apportion the cost of the improvements among the benefited properties and held a special assessment hearing for that purpose on July 30, 1981.

The city mailed a notice of hearing to those property owners affected by the assessment. The notice was also published in a local newspaper. Berglund and Shor-tridge received their notice and were assessed approximately $209,000. The notice stated that the adoption of the assessment for this project would be heard at 7:45 p.m. on July 30,1981. The notice also contained a paragraph advising them that an owner could appeal an assessment pursuant to Minn.Stat. § 429.081 by serving notice of an appeal on the mayor or city clerk within 20 days after the adoption of the assessment. That statutory section, however, was amended in 1978 to allow 30 days within which to serve a notice of appeal. The city had failed to correct its notice forms to reflect the change in the statute.

On the day of the hearing, Berglund contacted John Daubney, an attorney, to discuss the assessment, which Berglund thought excessive. They agreed to meet before the 7:45 p.m. assessment hearing for Project 77-12. This project was the fourth of five assessment hearings scheduled that evening. The meeting began at approximately 7:00 p.m. with the call to order. After the call to order and roll call, but before the first assessment hearing, Maplewood’s City Attorney announced the error in the notices and stated the correct appeal period was 30 days. Neither Berg-lund nor Daubney heard the announcement. The city’s tape recording machine was not turned on at the time, and the minutes from the meeting do not mention the correction.

When Project No. 77-12 was eventually discussed, Berglund objected to his assessment and was told to fill out a request form. With Daubney’s assistance, Berg-lund completed the required form in which he objected to his assessment, and he filed it with the city before leaving the hearing. The request form did not constitute a formal appeal. The city council adopted the assessment later that evening. The next day, Berglund mailed Daubney additional information concerning the assessment. Both Berglund and Shortridge believed Daubney was representing them in their appeal. Daubney, however, never filed an appeal.

In 1984, Berglund and Shortridge sued Daubney for malpractice for his failure to perfect an appeal. During discovery, the error in the notice of hearing was revealed. Daubney then impleaded the city in order to challenge the validity of the notice. Berglund and Shortridge amended their complaint, directly challenging the city’s notice as defective. Berglund, Shortridge, and Daubney then moved for summary judgment on the adequacy of the notice. The trial court ruled that the notice did not strictly comply with the statutory notice provision and that the improper notice deprived the city of jurisdiction to levy the assessment. It further held that laches did not bar the challenge to the notice.

ISSUES

1. Did the trial court err in finding that the notice of hearing was defective?

2. Did the trial court err in finding that laches did not bar the challenge to the notice?

ANALYSIS

1. Minnesota Statutes Section 429.-061, subdivision 1 (1980) required notice of special assessment hearings to state that a landowner has a right to appeal an assessment and to state the time in which such an appeal must be taken. Klapmeier v. Town of Center of Crow Wing County, 346 N.W.2d 133, 136 (Minn.1984). The statute provided:

The notice shall also state that an owner may appeal an assessment to district court pursuant to section 429.081 by serving notice of the appeal upon the mayor or clerk of the municipality within 30 days after the adoption of the assessment and filing such notice with the district court within ten days after service upon the mayor or clerk.

Minn.Stat. § 429.061, subd. 1. Proper notice of assessment proceedings is a jurisdictional prerequisite to any action by the city. Klapmeier, 346 N.W.2d at 136 (citing Sewall v. City of St. Paul, 20 Minn. 511 (Gil.459) (1874)). There must be strict compliance with the statutory notice provisions. Id. (citing Great Northern Railway Co. v. City of Minneapolis, 136 Minn. 1, 161 N.W. 231 (1917)).

In Klapmeier, the supreme court considered a challenge to a notice of hearing published and mailed pursuant to Minn. Stat. § 429.061, subd. 1. The notice, however, failed to mention that property owners had any appeal rights whatsoever. The court held:

[T]he failure to mention appeal rights in the published and allegedly mailed notice rendered that notice defective and the board without jurisdiction to make the reassessment.

Id. Here, the city’s notice of hearing erroneously stated the time in which an appeal must be taken. Respondents argue that the notice failed to strictly comply with the statutory notice provision, rendering the city without jurisdiction to levy the assessment. Id.

The city argues that substantial compliance satisfies the notice requirement and relies on City of Minneapolis v. Wurtele, 291 N.W.2d 386 (Minn.1980), to support its position. Wurtele involved a condemnation proceeding in which notice was issued pursuant to Minn.Stat. § 472A.03 which provided:

A municipality may * * * after public hearings, notice of which shall have been published in the official newspaper of the municipality, * * * designate development districts * * *.

Minn.Stat. § 472A.03 (1978). The notice was challenged as inadequate and insufficient to satisfy the statutory requirement. The court dismissed the challenge, stating:

[Wjhere a statute requiring notice does not set further guidelines for the form that notice must take, the statute has been satisfied where the notice is “sufficient to apprise one of ordinary intelligence” of the nature and subject of the hearing.

Wurtele, 291 N.W.2d at 392 (citation omitted).

The statute before us is significantly different from the one before the court in Wurtele. Here, the statute unequivocally sets the guidelines for the form the notice must take. Among other things, the statute specifically requires the notice to state that an owner has 30 days to appeal an assessment. The 30-day appeal period is granted under Minn.Stat. § 429.081. This section is always invoked by municipalities in cases where owners have failed to appeal in a timely manner. In Wessen v. Village of Deephaven, 284 Minn. 296, 170 N.W.2d 126 (1969), for example, the Village of Deephaven adopted an assessment from which several property owners filed timely notices of appeal. The village subsequently determined there had been an error in the publication of the original assessment and it adopted a reassessment. The owners then mailed their notices of appeal to the attorneys for the city and also delivered their notices to the sheriff for service on the mayor. These actions were taken within the 20-day appeal period then in effect. The mayor, however, was not served with the notices of appeal until the twenty-second day after the adoption of the reassessment. The supreme court affirmed the district court’s dismissal of the property owners’ suit against the village, stating:

[I]t must be kept in mind that appeals by property owners from assessments are wholly statutory, there being no common-law right to such appeal, and that the conditions imposed by the statute must be strictly complied with. The conditions will not be extended by construction.

Id. at 298, 170 N.W.2d at 128 (citation omitted) (emphasis added).

Strict compliance is the rule governing appeals from assessments. Id.; Ewert v. City of Winthrop, 278 N.W.2d 545, 550 (Minn.1979); Village of Edina v. Joseph, 264 Minn. 84, 93, 119 N.W.2d 809, 816 (1962). Historically, many homeowners have suffered from the harshness of this rule. Strict compliance, however, is a sword cutting two ways. Just as property owners must strictly adhere to the requirements imposed by the statute, so must local authorities strictly adhere to the statutory notice requirements. There cannot be two standards, a rigid one for homeowners, but a flexible one for cities. The city cannot have it both ways.

On appeal, the function of a court reviewing a summary judgment is to determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). None of the parties disputes the error in the notice of hearing, and nothing persuades us that the trial court erred in applying the rule in Klap-meier: “There must be strict compliance with statutory notice provisions.” Klap-meier, 346 N.W.2d at 136. Substantial compliance is inapplicable in assessment proceedings where notice is issued under Minn.Stat. § 429.061, subd. 1.

The dissent calls our attention to the cases of SMB Investments v. Iowa-Illinois Gas & Electric Co., 329 N.W.2d 635 (Ia.1983), and Habel v. City of Chisago City, 346 N.W.2d 668 (Minn.Ct.App.1984), to support its argument that strict compliance is not equivalent to literal compliance. SMB Investments, however, is an Iowa case which involves a condemnation proceeding, not a special assessment proceeding. We note that Iowa, like Minnesota, adheres to the principle of strict compliance in proceedings involving special assessments. Green v. City of Cascade, 231 N.W.2d 882, 885 (Ia.1975).

We also believe Habel is inapplicable here. In Habel, a notice of hearing in an assessment proceeding was challenged as defective for failing to inform property owners of any deferment procedures established by the city as required by Minn.Stat. § 429.061, subd. 1. Because the city had not established any deferment procedures, this court reasoned that it would be absurd to require notice of deferments and procedures which did not exist. Habel, 346 N.W.2d at 671. While deferments are optional and need to be included in a notice of hearing only when they have been established, the notice of a 30-day appeal period is mandatory.

The city claims that it will lose over $900,000 if the assessment is invalidated. There is simply no evidence, however, supporting this naked allegation. Furthermore, unlike homeowners, the city has a remedy available. The city may proceed upon notice and hearing to reassess the properties. Minn.Stat. § 429.071, subd. 2 (1986). The basis for a special assessment is the enhanced market value of the benefited land. See Continental Sales & Equipment Co. v. Town of Stuntz, 257 N.W.2d 546, 549 (Minn.1977). Five years have passed since the original assessment. When the city reassesses, it should have little difficulty determining what increase, if any, there has been in the market value of the benefited land. The reassessment would not affect the assessments that have already been paid. Credit can be given for payments received; refunds can be given if the property has been overassessed and the payments made exceed the amount of the reassessment.

Because this action began as a malpractice claim by Berglund and Shor-tridge against Daubney, the city argues that the challenge to the notice of hearing is collateral to the primary cause of action and cannot be maintained except as a direct attack in an assessment proceeding. Berg-lund and Shortridge, however, amended their complaint and directly challenged the city’s notice as defective. Although their challenge was brought beyond the 30-day appeal period provided by statute, it was, nevertheless, a direct attack on the assessment. A property owner’s appeal rights are exclusive “except as to the claim of a want of power or jurisdiction of the city to make the improvement or assessment.” Freding v. City of Minneapolis, 177 Minn. 122, 123-24, 224 N.W. 845, 846 (1929). Even if the challenge were collateral, a property owner may collaterally attack a special assessment for a want of jurisdiction. Burlington Northern, Inc. v. City of McCook, 204 Neb. 543, 544, 283 N.W.2d 380, 381 (1979).

2. The trial court ruled that laches did not bar the challenge to the notice of hearing. The purpose of laches is to prevent one who has not been diligent in asserting a known right from recovery at the expense of one who has been prejudiced by the delay. Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953). The question, however, is not whether laches does or does not bar the action. Laches is simply not a defense in situations where, as here, the assessment was levied without legal authority. 14 McQuillin Municipal Corporations, § 38.191 (3d ed. 1987). In Klapmeier, although the supreme court held that the city lacked jurisdiction to levy the assessment, the court went on to discuss laches. It need not have done so, and the discussion is dicta.

Where an assessment is void, the lapse of time cannot give it life or validity. Laches does not apply where the city lacks jurisdiction to act from the beginning. See Cullingham v. City of Omaha, 143 Neb. 744, 748, 10 N.W.2d 615, 618 (1943). Although the trial court erred in considering laches as a defense, its error does not change the result.

DECISION

The trial court correctly determined that the city’s notice of hearing was defective for failing to strictly comply with the statutory notice provision, which rendered the city without jurisdiction to levy the assessment.

Affirmed.

FOLEY, J., dissents.