                          This opinion will be unpublished and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
                                     A15-0299

                             City of Apple Valley, petitioner,
                                      Respondent,

                                            vs.

                         William C. Thompson (deceased), et al.,
                                  Respondents Below,

                      Gene Rechtzigel, individually and as trustee of
                    Evelyn I. Rechtzigel Trust and Frank H. Rechtzigel
                              Charitable Remainder Unitrust,
                                        Appellant.

                                Filed November 16, 2015
                                       Affirmed
                                    Connolly, Judge

                              Dakota County District Court
                              File No. 19HA-CV-14-1763


Robert B. Bauer, Michael G. Dougherty, Brian J. Wisdorf, Dougherty, Molenda, Solfest,
Hills & Bauer P.A., Apple Valley, Minnesota (for respondent)

Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for appellant)


      Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant, a property owner, challenges the district court’s orders granting the

eminent-domain petition filed by respondent, a city, and denying appellant’s motion for

summary judgment and request for relief under Minn. Stat. § 554.02 (2014). Because we

see no error of law in either order, we affirm.

                                          FACTS

       In 1860, William Thompson, deceased, acquired a piece of real property, most of

which he later conveyed. One part he did not convey was a strip of land about half a mile

long and 15 to 20 feet wide (the gap) in respondent City of Apple Valley (the city). No

subsequent owner of the gap has been recorded.

       When the city realized that it did not own the gap although its water and utilities

are located within it, the city passed a resolution authorizing the use of its eminent-

domain power to acquire the gap by the quick-take process and began an eminent-domain

action. The city notified every landowner who was in any way likely to be affected by its

taking of the gap.

       One of those notified was Fischer Sand and Aggregate (Fischer); another was

appellant Gene Rechtzigel, acting individually and as trustee of the Evelyn I. Rechtzigel

Trust and the Frank H. Rechtzigel Charitable Remainder Unitrust. Appellant moved to

dismiss the city’s eminent-domain action for lack of jurisdiction, failure to join an

indispensable party; relief under Chapter 554 of the Minnesota Statutes, and lack of

ripeness; he also moved for summary judgment and for attorney fees and costs. Hearings


                                              2
were held on the city’s eminent-domain petition and appellant’s motions. After the

hearings, the district court issued two orders, one denying all of appellant’s motions and

the other granting the city’s eminent-domain petition and permitting the city to deposit

the price of the gap with the court, thus acquiring fee title, interest, and right to

possession.

       Appellant challenges the orders, arguing that the district court erred by: (1) not

dismissing the proceedings for the city’s failure to join an indispensable party under

Minn. Stat. § 117.036, (2) not dismissing or staying the proceedings for lack of

jurisdiction, (3) not dismissing the proceedings under Minn. R. Civ. P. 12.02(e) and

Minn. R. Civ. P. 19.01, (4) denying appellant’s motion for summary judgment,

(5) granting the city’s   petition for eminent domain, and (6) not granting appellant

attorney fees and costs under Minn. Stat. § 554.02.1




1
  Appellant also argues that the district court “improperly engaged in verbatim adoption”
of the city’s proposed orders denying appellant’s motions and granting eminent domain.
While this is true of the order granting eminent domain, it is not true of the order denying
appellant’s motions. In any event, “[a] district court’s verbatim adoption of a party’s
proposed findings and conclusions of law is not reversible error per se.” Schallinger v.
Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005) (citations omitted), review denied
(Minn. Sept. 28, 2005). Moreover, “[a]doption of a party’s proposed findings by a
district court is generally an accepted practice,” and this court “examines the findings to
determine whether they are clearly erroneous.” Id. But see Lundell v. Coop. Power
Ass’n, 707 N.W.2d 376, 380 n.1(Minn. 2006) (“We discourage district courts from
adopting proposed findings of fact and conclusions of law verbatim because it does not
allow the parties or a reviewing court to determine the extent to which the court’s
decision was independently made.”). Thus, while verbatim adoption may not be the best
practice, it is not grounds for reversal.




                                             3
                                    DECISION

1.    Failure To Join An Indispensable Party

      Statutory interpretation is a question of law and is reviewed de novo. In re Estate

of Barg, 752 N.W.2d 52, 63 (Minn. 2008).

      “[B]efore commencing an eminent domain proceeding, the acquiring authority

must make a good faith attempt to negotiate personally with the owner of the property in

order to acquire the property through direct purchase instead of the use of eminent

domain proceedings.” Minn. Stat. § 117.036, subd. 3 (2014). “For purposes of this

section, ‘owner’ means fee owner, contract purchaser, or business lessee who is entitled

to condemnation compensation under a lease.” Minn. Stat. § 117.036, subd. 1a (2014).

Appellant argues that the district court erred in interpreting “owner” to mean the last

owner of record, namely the late William Thompson, instead of appellant because “[the

city] had express knowledge prior to the commencement of the [eminent domain] action

that [appellant] owned the property.”

      Appellant argues that “owner,” defined in Minn. Stat. § 117.036, subd. 1a, means

“fee owner, contract purchaser, or business lessee” and does not mean “record owner.”

But there was neither a record owner nor an adjudicated owner of the gap with whom the

city could have negotiated the direct purchase of the property in order to comply with

Minn. Stat. § 117.036, subd. 3, because the last record owner was dead and no other

owner has been adjudicated.2


2
  This court has twice noted that appellant has not attempted to register his ownership of
the gap. In re Application of Fischer Sand & Aggregate, No. A14-0735, 2015 WL

                                            4
          The district court did not err in not interpreting Minn. Stat. § 117.036, subd. 3, to

require the city to negotiate the direct purchase of the gap with appellant (who, being

neither the adjudicated owner nor the owner of record, could not have sold it in any

event).

2.        Jurisdiction

          While the filing of an appeal suspends the district court’s authority “to make any

order that affects the order or judgment appealed from,” the district court “retains

jurisdiction as to matters . . . collateral to” that order or judgment. Minn. R. Civ. App. P.

108.01, subd. 2.

          Appellant argues that the district court lacked jurisdiction over the city’s eminent-

domain petition because, at the time of the October 2014 hearing, two related cases, In re

Application of Rechtzigel, No. A14-0449, 2014 WL 6609118 (Minn. App. Nov. 24, 2014)

(Rechtzigel), and In re Application of Fischer Sand & Aggregate, No. A14-0735, 2015

WL 1128658 (Minn. App. Mar. 16, 2015), review denied (Minn. May 27, 2015) (Fischer)

were before this court.3 The district court noted that “the dispute over the [gap’s] eastern

boundary line does not directly impact [the city’s] eminent domain action” and that “[the

city] has provided proper notice to all parties who may have a claim to the land at issue,

be it [Fischer] or [appellant].” Appellant does not dispute this. The district court did not


1128658 at *1 (Minn. App. Mar. 16, 2015) (“[A]ppellant did not perfect an application to
register the gap.”), review denied (Minn. May 27, 2015); In re Application of Rechtzigel,
No. A14-0449, 2014 WL 66091188, at *1 (Minn. App. Nov. 24, 2014) (“[Appellant] . . .
has not yet initiated an action to register ownership of the gap.”).
3
  After the hearings, but before the district court issued its orders, this court released
Rechtzigel.

                                                5
err in concluding that the pending appeals did not deprive it of jurisdiction over the

eminent-domain action.

3.     Failure to Dismiss Under Minn. R. Civ. P. 12.02(e) and Minn. R. Civ. P. 19.01

       Appellant argues that the city failed to set forth a legally sufficient claim for relief,

as required by Minn. R. Civ. P. 12.02(e), because it did not join Fischer, whose joinder as

an indispensable party was required under Minn. R. Civ. P. 19.01. But neither in his brief

nor in his reply brief does appellant dispute the district court’s statement that, “[b]ased

upon [Fischer]’s declarations [that it did not believe it was an indispensable party to the

proceedings] and quitclaim deed [conveying to the city any interest Fischer might have in

the land the city intended to acquire] this court cannot find that [Fischer] is an

indispensable party.” Therefore, the district court did not err in failing to dismiss the

proceedings under Minn. R. Civ. P. 12.02(e) and Minn. R. Civ. P. 19.01.

4.     Denial of Summary Judgment

       Appellant moved for summary judgment on the ground that the city had failed to

provide any evidence to support its contention that the taking of the land was for various

public purposes; he also argued that the district court was obliged to rule on his

summary-judgment motion before holding a hearing on the city’s eminent-domain

petition. But the city complied with the statutory requirements that it file a petition

describing the land it wanted to acquire, stating why it wanted the land, and identifying

all those with a recorded or known interest in the land, see Minn. Stat. § 117.055, subd. 1

(2014), and that it provide notice of the petition and of the time and place of a public

purpose hearing, see Minn. Stat. § 117.055, subd. 2 (2014). The district court then


                                               6
complied with the statutory requirement that, upon receiving proof of service of notice of

the petition and the hearing, it “hear all competent evidence offered for or against the

granting of the petition.” See Minn. Stat. § 117.075, subd. 1.

       Appellant cites no support for his view that the district court should have required

the city “to provide proof of public purpose prior to the hearing contemplated by

§ 117.075 in response to a summary judgment motion,” claiming that this is “a matter of

first impression.” But the statute clearly requires a district court to hear the evidence for

and against the condemnation when it is notified of service; it does not provide that a

condemnation petition may be resolved on another party’s motion for summary

judgment. The district court did not err in denying summary judgment on procedural

grounds.

5.     Granting of Eminent Domain

       “[T]here are two levels of deference paid to condemnation decisions: the district

court gives deference to the legislative determination of public purpose and necessity of

the condemning authority[,] and the appellate courts give deference to the findings of the

district court, using the clearly erroneous standard.” Lundell v. Coopertive Power Ass’n,

707 N.W.2d 376, 381 (Minn. 2006). “[A] condemning authority . . . must determine that

there is a public use for the land and that the taking is reasonably necessary or convenient

for the furtherance of that public use.” Id. at 380.

       A.     Public purpose

       “Public purpose is construed broadly. The standard for overturning a condemning

authority’s decision on public purpose grounds is very strict.” Id. at 381 (quotation and


                                              7
citation omitted).   “If it appears that the record contains some evidence, however

informal, that the taking serves a public purpose, there is nothing left for the courts to

pass upon.” Hous. and Redev. Auth. v. Minneapolis Metro Co., 259 Minn. 1, 15, 104

N.W.2d 864, 874 (1960).

       In its order granting the petition, the district court relied on the testimony of the

city’s director of public works, who testified that storm-sewer and sanitary-sewer lines, to

which the city must have access for maintenance, cross the gap at four locations; that the

city plans to expand both a pond and a park on the city property adjacent to the gap, and

that a road that now terminates at the gap must be extended because of a development

agreement. Thus, there was evidence to support the determination that the taking serves a

public purpose.

       B.     Necessity

       “Overwhelming evidence that the taking is not necessary” is required “[t]o

overcome a condemning authority’s finding of necessity[.]” Lundell, 707 N.W.2d at 381.

“The mere suggestion of possible alternatives to the condemning authority’s plan will not

in itself support a finding of arbitrariness.” Id. (quotation omitted). The district court

concluded that, because appellant “failed to present any evidence at the hearing[, he had]

not met [his] burden to establish that the taking is not necessary”; although he did

“elicit[] testimony to suggest that the city could simply obtain a utility easement for each

of these purposes rather than condemning the entire [gap,] . . . [i]t would be unreasonable

to require the city to obtain multiple utility easements in order to maintain a strip of land

that has no independent purpose.”


                                             8
       Particularly in light of its obligation to give deference to the city’s determination,

the district court did not err in granting the eminent-domain petition.

6.     Attorney Fees Under Minn. Stat. § 554.04 (2014)

       Finally, appellant argues that the district court erred in denying him the attorney

fees mandatory under Chapter 554 (the anti-SLAPP statute). Whether the anti-SLAPP

statute applies is a legal question of statutory interpretation and is reviewed de novo.

Middle-Snake-Tamarac Rivers Watershed Dist. v. Stengrim, 784 N.W.2d 834, 840 (Minn.

2010). A strategic lawsuit against public participation, or SLAPP, is a lawsuit initiated to

either prevent citizens from exercising their political rights or to punish them for having

done so. Id. at 838 (interpreting the anti-SLAPP statute).

              [T]he first step in evaluating an anti-SLAPP motion is to
              determine whether the party seeking dismissal under the anti-
              SLAPP statute has made a threshold showing that the
              underlying claim materially relates to an act of the moving
              party that involves public participation.

Leiendecker v. Asian Women United of Minnesota, 848 N.W.2d 224, 229 (Minn. 2014)

(citing Minn. Stat. § 554.02, subd. 1 (2008) and holding that allegations in a complaint do

not meet the requirement that the responding party produce clear-and-convincing

evidence that the moving party is not entitled to immunity) (quotation omitted), as

modified 855 N.W.2d 233 (Minn. Sept. 3, 2014).

       Appellant has not shown that the city’s eminent-domain proceeding was materially

related to his public participation in government. The city showed that its proceeding

resulted from its realization that it had utilities on a strip of land it did not own and its




                                             9
need to extend and maintain those utilities. The anti-SLAPP statute has no application

here, and appellant is not entitled to attorney fees under it.

       Affirmed.




                                              10
