                       This opinion will be unpublished and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
                                  A16-0722


                                  Gary Otremba,
                                   Appellant,

                                Heidi L. Moegerle,
                                    Appellant,

                                        vs.

                                City of East Bethel,
                                   Respondent.


                            Filed November 28, 2016
                                    Affirmed
                                Halbrooks, Judge
                       Concurring specially, Johnson, Judge


                            Anoka County District Court
                             File No. 02-CV-15-5612

Gary Otremba, Heidi L. Moegerle, Wyoming, Minnesota (pro se appellants)

Kevin S. Sandstrom, Mark J. Vierling, Eckberg Lammers, P.C., Stillwater, Minnesota
(for respondent)

      Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and

Johnson, Judge.
                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Pro se appellants challenge the district court’s dismissal of a special-assessment

appeal, arguing that payment of a special assessment prior to filing an appeal does not

preclude the appeal. We affirm.

                                          FACTS

       Appellants Gary Otremba and Heidi Moegerle own property located in the City of

East Bethel. Respondent City of East Bethel adopted a resolution that ordered appellants

to remove a retaining wall that encroached upon the city’s right-of-way of the street

adjoining appellants’ property. Appellants did not appeal this resolution and did not

remove the retaining wall. Thereafter, the city removed the retaining wall and adopted a

special-assessment resolution, ordering appellants to reimburse the city for its removal of

the wall.

       Moegerle filed an appeal in district court after she paid the special assessment in

full, requesting that the district court order the following relief: (1) set aside the

assessment without ordering a new assessment, (2) declare that the special-assessment

resolution is void, (3) order the city to reimburse appellants for payment of the special

assessment, (4) award punitive damages, (5) bar the city from renaming the special-

assessment project, and (6) require the city to publish an apology to appellants. The city

moved the district court for an order dismissing the action, arguing that payment of a

disputed assessment prior to filing an appeal acts as a jurisdictional waiver of the right to




                                             2
appeal. Appellants conceded that Moegerle paid the special assessment but argued that

payment did not waive their right to appeal the special assessment.

       The district court dismissed appellants’ special-assessment appeal with prejudice.

It determined that its scope of relief was limited to either affirming the assessment or

setting the assessment aside and ordering reassessment and that none of the relief

requested by appellants was authorized by statute. See Minn. Stat. § 429.081 (2014). It

also concluded that appellants waived their right to appeal by paying the special

assessment. This appeal follows.

                                     DECISION

       A defendant may move the district court to dismiss a case, and if “matters outside

the pleading[s] are presented to and not excluded by the [district] court, the motion shall

be treated as one for summary judgment.” Minn. R. Civ. P. 12.02. Because the district

court considered facts outside the pleadings in reaching its decision, we treat its decision

as one of summary judgment. We review summary-judgment decisions de novo and

must determine whether the district court properly applied the law and whether there are

genuine issues of material fact that preclude summary judgment.           Dickhoff ex rel.

Dickhoff v. Green, 836 N.W.2d 321, 328 (Minn. 2013). There are no genuine issues of

material fact here. It is undisputed that appellants paid the special assessment prior to

filing an appeal in the district court. We therefore determine “whether the [district] court

erred in applying the law.” Antone v. Mirviss, 720 N.W.2d 331, 334 (Minn. 2006).




                                             3
                                              I.

       Both parties address whether paying a special assessment prior to filing an appeal

in district court acts as a jurisdictional waiver. The district court dismissed this matter, in

part, because it concluded that it did not have jurisdiction to consider the appeal. The

Minnesota Supreme Court has discouraged the inexact use of the term “jurisdiction.”

See, e.g., McCullough & Sons, Inc. v. City of Vadnais Heights, 883 N.W.2d 580, 584, 590

& n.3 (Minn. 2016) (“Jurisdiction refers to a court’s power to hear and decide disputes.”

(internal quotations omitted)); In re Civil Commitment of Giem, 742 N.W.2d 422, 427 &

n.6 (Minn. 2007) (distinguishing between “non-jurisdictional procedural rules” and

subject-matter jurisdiction, which relates to the district court’s adjudicatory authority).

       Subject-matter jurisdiction presents a question of law that this court reviews

de novo.   Nelson v. Schlener, 859 N.W.2d 288, 291 (Minn. 2015).               Subject-matter

jurisdiction relates to a court’s constitutional or statutory power to adjudicate a case.

McCullough & Sons, 883 N.W.2d at 584-85. And district courts are authorized by statute

to determine special-assessment appeals. Minn. Stat. § 429.081. Because the district

court is authorized to determine special-assessment appeals, we conclude that it has

subject-matter jurisdiction to consider this matter.

       Turning our attention to the merits of this appeal, appellants contend that they

could not waive their right to challenge the special assessment because they were not

aware, and were not notified, that payment would constitute a waiver of their appeal. In

response, the city relies on two cases for the assertion that appellants are barred from

appealing a special assessment that has been paid. See Rosso v. Vill. of Brooklyn Ctr.,


                                              4
214 Minn. 364, 8 N.W.2d 219 (1943); In re Slaughter, 213 Minn. 70, 5 N.W.2d 64

(1942). We are not persuaded that these cases apply here.

       In Slaughter, the supreme court concluded that a petitioner who pays a ditch

assessment prior to filing an appeal waives any objections to the assessment proceedings

on jurisdictional grounds, unless the petitioner can prove that the payment was made

under duress or coercion. 213 Minn. at 74, 5 N.W.2d at 66-67. But the rule in Slaughter

applied to ditch assessments, which were governed by a different statutory scheme.

Id.;see also Minn. Stat §§ 429.01-.29 (1941) (regulating special assessments); Minn. Stat.

§§ 6634-6926 (Supp. 1940) (regulating drainage law and ditch assessments).

       In Rosso, landowners paid the first of five annual installments of a special

assessment in 1939, but they did not appeal the special-assessment resolutions until 1942.

214 Minn. at 366-67, 8 N.W.2d at 220. The district court dismissed the case, holding that

the landowners “could not maintain a suit in equity to enjoin the collection of the

assessments, because the law afforded them an adequate remedy to contest the

assessments.” Id. at 368, 8 N.W.2d at 221. After the supreme court concluded that the

district court’s dismissal was not erroneous, in dictum, it stated:

                     It might also be suggested here that, in view of the fact
              that plaintiffs paid a portion of their [special] assessments,
              they thereby waived any objection they might have had to the
              [special-assessment] proceedings on jurisdictional grounds.
              The fact that the payments were made “under protest” is
              immaterial, unless there is evidence that such payments were
              made under duress or coercion.

Id. (citing Slaughter, 213 Minn. at 74, 5 N.W.2d at 67).




                                              5
       Judicial dictum is an expression of the court’s opinion on a question “directly

involved and argued by counsel though not entirely necessary to the decision.” Brink v.

Smith Cos. Constr., 703 N.W.2d 871, 877 (Minn. App. 2005). Dictum that “contains an

expression of the opinion of the court” is entitled considerable weight. Id. But it is not

binding. Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 808 (Minn. App. 2000), review

denied (Minn. Sept. 26, 2000).

       We conclude that neither Slaughter nor Rosso is binding on the matter before us.

The rule’s application in Rosso is judicial dictum. And Slaughter did not directly apply

the rule to special assessments. We may also “affirm summary judgment on alternative

theories presented but not ruled on at the district court level.” Nelson v. Short-Elliot-

Hendrickson, Inc., 716 N.W.2d 394, 402 (Minn. App. 2006), review denied (Minn. Sept.

19, 2006). Because Slaughter and Rosso do not bind us, and because the district court

determined that “[n]one of [appellants’] forms of relief are authorized by the statute,” the

plain language of the statute guides our decision. See Pecinovsky, 613 N.W.2d. at 807-09

(reviewing the plain language and legislative intent of a statute after determining that the

caselaw was dicta).

       The district court, in part, determined that none of appellants’ requested relief was

authorized by statute.    Statutory interpretation is a question of law that we review

de novo. City of Brainerd v. Brainerd Invs. P’ship, 827 N.W.2d 752, 755 (Minn. 2013).

“The object of all interpretation and construction of laws is to ascertain and effectuate the

intention of the Legislature.” Id. When a statute’s language is plain and unambiguous,




                                             6
“we interpret the statute according to its plain meaning.” Id. And we will dismiss a case

if we cannot grant effectual relief. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005).

       An aggrieved person “who is not precluded by failure to object prior to or at the

[special-assessment] hearing” may file an appeal in district court within 30 days after the

special-assessment resolution is adopted. Minn. Stat. § 429.081. The district court’s

scope of relief is limited to “either affirm[ing] the assessment or set[ting] it aside and

order[ing] a reassessment.” Id.

       Here, it appears that appellants satisfied the procedural requirements for filing an

appeal because they objected to the special-assessment resolution at the city council

meeting and filed their appeal less than 30 days after it was adopted. But the district

court correctly determined that it has no power to grant the relief that appellants seek.

Although appellants argue that the plain language of Minn. Stat. § 429.081 does not

preclude aggrieved persons who have already paid a special assessment of the right to

appeal special-assessment proceedings, it similarly does not contemplate the district court

ordering reimbursement of a special assessment already paid. Because the district court,

given its limited scope, cannot grant appellants effectual relief and because it properly

considered its limited scope, its dismissal of this appeal is proper.

                                              II.

       Appellants urge this court to remand this case to the district court for a

determination of damages under the private attorney general statute on the ground that

the city filed a frivolous motion. See Minn. Stat. § 8.31, subd. 3a (2014). But appellants

did not bring this action under the private attorney general statute, nor are they likely to


                                              7
be able to show benefit to the public should they prevail. See Ly v. Nystrom, 615 N.W.2d

302, 314 (Minn. 2000) (“[T]he Private AG Statute applies only to those claimants who

demonstrate that their cause of action benefits the public.”). And although the private

attorney general statute contemplates an award of attorney fees, it does not provide for an

award of attorney fees on the ground that a party brought a frivolous motion. Minn. Stat.

§ 8.31, subds. 1, 3a (2014).

       Affirmed.




                                            8
JOHNSON, Judge (concurring specially)

      I agree with the opinion of the court that the district court’s decision should be

affirmed, but I would affirm for different reasons.     Specifically, I would apply the

supreme court’s opinions in Slaughter and Rosso and would conclude that appellants

waived their challenge to the special assessment when they paid the special assessment

before commencing their district court action.

      The district court properly relied on Slaughter and Rosso and the common-law

doctrine of waiver. In Slaughter, the district court dismissed three challenges to a ditch

assessment, and the supreme court affirmed on the ground that “by paying their

assessments petitioners waived any objection they might have had to the proceedings.”

In re Petition of Slaughter, 213 Minn. 70, 74, 5 N.W.2d 64, 67 (1942). The Slaughter

court’s waiver analysis is not expressly limited to ditch assessments and is not based on

any language in the statute governing ditch assessments. See id. In Rosso, the district

court dismissed a challenge to a municipality’s special assessment, and the supreme court

affirmed, in part because “plaintiffs paid a portion of their assessments” and “thereby

waived any objection they might have had to the proceedings.” Rosso v. Village of

Brooklyn Center, 214 Minn. 364, 369, 8 N.W.2d 219, 221 (1943). Waiver was one of

two independent grounds for deciding the appeal; therefore, the waiver analysis in Rosso

is binding precedent, not dictum. See State v. Rainer, 258 Minn. 168, 178, 103 N.W.2d

389, 396 (1960); State by Foster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266

(1956).



                                          CS-1
       This court should confine itself to the question whether the district court erred in

its application of Slaughter and Rosso. The waiver rule of Slaughter and Rosso was the

sole basis for the district court’s decision.         In the concluding paragraph of its

memorandum, the district court stated, “Because the Plaintiffs paid the special

assessment in full prior to commencing their appeal under Minn. Stat. Sec. 429.081, the

Anoka County District Court does not have jurisdiction1 to consider the appeal.

Therefore, the special assessments appeal of the Plaintiffs is dismissed without

prejudice.” Respondent has not asked this court to affirm the district court on alternative

grounds. In fact, respondent contends that the district court’s application of Slaughter

and Rosso “is the only issue that is relevant in this appeal.” Respondent reiterates,

“Because the District Court never reached the merits . . . of Appellants’ various legal

arguments about the assessment process, those arguments are not appropriate or ripe for

review on appeal.” In light of respondent’s position, I would not consider alternative

grounds for affirmance sua sponte.

       For these reasons, I concur in the judgment.




       1
         I note that the district court likely misunderstood the holdings of Slaughter and
Rosso. I believe that Slaughter and Rosso are not concerned with the existence or non-
existence of jurisdiction, let alone subject-matter jurisdiction. I believe that the district
court in this case likely was misled by the statement in Slaughter (which was repeated in
Rosso) that petitioners “waived any objection they might have had to the proceedings on
jurisdictional grounds.” Slaughter, 213 Minn. at 74, 5 N.W.2d at 67 (emphasis added);
see also Rosso, 214 Minn. at 369, 8 N.W.2d at 221. I read Slaughter to say that the
petitioners had an objection to the assessment proceedings that was jurisdictional in
nature but waived it. I read Rosso in the same manner. I do not read either case to say
that the waiver deprived the district court of jurisdiction.
                                           CS-2
