                         This opinion will be unpublished and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
                                    A14-1062

                                    City of Orono,
                                     Respondent,

                                          vs.

                                 Jay T. Nygard, et al.,
                                      Appellants.

                                  Filed June 1, 2015
                                      Affirmed
                                    Hooten, Judge

                            Hennepin County District Court
                      File Nos. 27-CV-11-5626, 27-CV-11-7765

Soren M. Mattick, Shana N. Conklin, Campbell Knutson, P.A., Eagan, Minnesota (for
respondent)

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

      Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and

Stauber, Judge.

                       UNPUBLISHED OPINION

HOOTEN, Judge

      Appellants Jay and Kendall Nygard constructed a wind turbine in their backyard in

violation of the City of Orono’s zoning code.        The district court found them in

constructive civil contempt of court for repeatedly refusing to comply with its order to
remove the turbine after their legal challenges to Orono’s zoning code failed. The

Nygards now appeal the district court’s denial of their motion to stay the contempt

proceedings. We affirm.

                                          FACTS

       Appellants Jay and Kendall Nygard live in a residential zoning district in the city

of Orono. They applied for a permit to construct a wind turbine in their backyard. Orono

denied their application, but the Nygards nonetheless constructed the turbine.        The

Nygards subsequently challenged Orono’s denial of their permit application in district

court, but the district court affirmed Orono’s decision.

       The Nygards appealed, and we reversed and remanded. City of Orono v. Nygard,

No. A12-0711, 2012 WL 5188078, at *5 (Minn. App. Oct. 22, 2012). Orono had argued

that its decision to deny the permit could be supported by the fact that the Orono zoning

code did not specifically mention that wind turbines were a lawful accessory use. Id. at

*3. We determined that the Orono ordinance describing lawful accessory uses was not

exhaustive, and therefore the city could not support its decision to deny the Nygards’

permit based solely on this interpretation of a single provision of the Orono zoning code.

Id. at *3–4. But, because we did not state that the wind turbine was permitted, only that

Orono’s argument that wind turbines were prohibited under this specific provision of the

code was not persuasive, we remanded the case “to the city for further consideration of

the Nygards’ permit application.” Id. at *4. In conjunction with the remand, we did not

render an opinion as to whether or not the Nygards’ construction of the turbine should be




                                             2
approved, nor did we render an opinion as to whether Orono’s zoning code permitted

turbines. Id.

       Upon remand, Orono sent a letter to the Nygards stating that it had “been directed

by the Minnesota Court of Appeals to review and further consider your permit

application.” In the letter, Orono asked the Nygards to provide answers to a series of

questions about the turbine in order to determine whether the turbine complied with the

zoning code. Orono asked for the Nygards’ answers by November 16.

       On November 2, the Nygards’ counsel sent a letter to Orono stating that Orono’s

request for additional information served “no purpose other than to notify my clients that

the City of Orono does not intend to cooperate with my clients or the Minnesota

Appellate Court Ruling.”        According to the letter, the “correct interpretation and

implementation” of this court’s October 2012 opinion was that “no building permit is or

was required.” The letter further advised that the Nygards would sue Orono in district

court if Orono took any further action on the Nygards’ permit application.

       Two weeks after Orono’s November 16 deadline for the Nygards’ answers passed,

Orono denied the Nygards’ permit application. Orono informed the Nygards that it

denied their permit because it determined that their wind turbine did not comply with its

zoning code. Orono found that the turbine was not an acceptable accessory use or

structure because wind turbines are not “customarily incidental to the principal use or

structure” as the zoning ordinance requires.         Orono also contended that the turbine

violated four other provisions of the city’s zoning code because (1) it was not located at

least 10 feet from a side lot line, (2) it was not at least 10 feet from the principal structure,


                                               3
(3) it exceeded the 25% hardcover allowance, and (4) the turbine was located beyond the

existing “average lakeshore setback line.”

       The Nygards did not administratively appeal this decision to the Orono zoning

board of appeals. Instead, they bypassed the board and filed an informational statement

in the ongoing district court action. The Nygards stated that they were challenging

Orono’s authority to prevent them from installing a turbine. Orono argued that it was

justified in denying the permit because the wind turbine did not comply with its zoning

code, and Orono moved for summary judgment.

       In May 2013, the district court granted summary judgment for Orono. The

district court determined that Orono’s stated rationales for denying the permit were

consistent with this court’s previous decision to remand the case to Orono for “further

consideration” of the permit. The district court granted Orono summary judgment on

each one of its stated rationales for denying the permit. The district court also noted that

following the remand from this court, the Nygards told Orono that they did not need a

permit, even though this court told Orono to further consider the permit. The district

court entered judgment and ordered the Nygards to remove the turbine, the pole

supporting the turbine, and the concrete pad supporting the pole within 30 days.

       The Nygards attempted to appeal the district court’s judgment, but we dismissed

their appeal as it was untimely. See City of Orono v. Nygard, No. A13-1459 (Minn. App.

Nov. 5, 2013) (order). After the Nygards refused to remove the turbine, Orono alerted

the district court to the Nygards’ refusal to comply with the district court’s now-final




                                             4
order. The district court, noting that their appeal had failed, ordered the Nygards to show

cause for their failure to timely comply with its order.

       The record does not indicate that the Nygards responded to the district court’s

order to show cause. Instead, the Nygards contacted Orono directly, and in a letter

received by Orono on February 10, 2014, the Nygards informed Orono that they did not

need a permit, and they threatened to litigate the dispute in district court if Orono did not

“[c]ease and desist” its “arbitrary harassment of the Nygard property.” In a second letter

received by Orono on February 11, 2014, the Nygards indicated that they would not

respond to Orono’s October 31, 2012 request for information about their turbine, and the

Nygards denied even having a wind “tower” in violation of the zoning code on their

property.

       After hearing nothing from the Nygards, the district court found the Nygards in

constructive civil contempt of court for refusing to remove the turbine. The district court

then ordered the Nygards to remove the turbine and support pole within 20 days, while

providing 60 days to remove the concrete pad. The district court also ordered the

Nygards to contact the city by March 21, 2014 to allow Orono to inspect their property to

confirm that the turbine and its support parts had been removed. As part of its civil

contempt order, the district court indicated that if the Nygards did not comply with its

order to remove the turbines, it would fine them and confine them in jail.

       The Nygards did not comply with the district court’s order. Instead, two months

after the district court’s deadline for removing the turbine passed, they requested that the

district court stay the contempt proceedings. The Nygards asserted that the district court


                                              5
should stay the contempt proceedings because they filed a declaratory judgment action in

district court challenging Orono’s zoning ordinance. Orono opposed the stay, arguing

that “[t]his case should be closed” because the district court’s May 2013 order granting

Orono summary judgment established that the wind turbine did not comply with Orono’s

zoning code, and the Nygards’ declaratory judgment action had nothing to do with the

current dispute: the Nygards’ failure to comply with the district court’s order requiring

the Nygards to take down the turbine. In their response, the Nygards argued for the first

time that the district court lacked subject matter jurisdiction over the contempt

proceedings.

      The district court determined that it had subject matter jurisdiction to hear the

contempt proceedings, and it denied the Nygards’ request for a stay of that proceeding.

The district court again ordered the Nygards to remove the turbine, but that order was

stayed pending this appeal, which we are now asked to decide.

                                    DECISION

                                            I.

      The Nygards argue that the district court lacked subject matter jurisdiction to

conduct the contempt proceedings. Their argument is cumulative: they believe that the

district court lacked subject matter jurisdiction to find them in contempt because the

contempt proceedings arose from their failure to comply with the district court’s order in

their permit dispute, and the district court lacked subject matter jurisdiction over that

permit dispute. The Nygards’ argument is entirely meritless.




                                            6
       Subject matter jurisdiction refers to a court’s authority to adjudicate a particular

class of actions and the questions presented in those actions. Anderson v. Cnty. of Lyon,

784 N.W.2d 77, 80 (Minn. App. 2010), review denied (Minn. Aug. 24, 2010). A party

may challenge the validity of a judgment on the grounds that the court issuing the

judgment lacked subject matter jurisdiction. Bode v. Minn. Dep’t of Natural Res., 612

N.W.2d 862, 866 (Minn. 2000). These challenges may be either “direct” or “collateral.”

Id. A challenge is direct when a party challenges the subject matter jurisdiction of the

court in the same proceeding in which the judgment is entered. Id. A challenge is

collateral when, in a proceeding other than the one in which the judgment is entered, the

party attacks the judgment by asserting that the court which entered the judgment lacked

the subject matter jurisdiction to do so. Id.

       Under the traditional rule, a party could, at any time, collaterally challenge the

validity of a judgment on the theory that the court entering that judgment lacked subject

matter jurisdiction. Id. at 866–67. Minnesota courts no longer follow the traditional rule.

Id. at 868. Instead, a party collaterally attacking the subject matter jurisdiction of a final

judgment entered in a separate proceeding must do more than prove that the court lacked

subject matter jurisdiction; it must also demonstrate either that:

                    (1) The subject matter of the action was so plainly
              beyond the court’s jurisdiction that its entertaining the action
              was a manifest abuse of authority; or

                     (2) Allowing the judgment to stand would substantially
              infringe the authority of another tribunal or agency of
              government; or




                                                7
                     (3) The judgment was rendered by a court lacking
              capability to make an adequately informed determination of a
              question concerning its own jurisdiction and as a matter of
              procedural fairness the party seeking to avoid the judgment
              should have opportunity belatedly to attack the court’s subject
              matter jurisdiction.

Id. at 867 (quotation omitted).

        The Nygards contend that they properly “initiated a special proceeding” to

collaterally challenge the district court’s subject matter jurisdiction over the city’s second

denial of their permit. To succeed, they must demonstrate both that the district court

lacked subject matter jurisdiction and that at least one of the three factors explained in

Bode is present in this case. See id.

       The Nygards never presented the district court with any evidence or argument to

support the existence of any of the three Bode factors. Instead, they simply clung to the

traditional rule that a party could challenge the validity of a judgment for lack of subject

matter jurisdiction “at any time” without making an additional showing under Bode.

Because the Nygards did not present the district court with at least one of the three

necessary Bode factors, their argument before the district court was, as a matter of law,

insufficient to allow the district court to vacate the judgment based on a purported lack of

subject matter jurisdiction. And while the Nygards’ argument to this court did briefly

mention Bode, we will not consider their Bode argument for the first time on appeal. See

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (declining to review argument raised

for first time on appeal).




                                              8
       Even if we excused the Nygards’ failure to raise the proper argument before the

district court, we would still reject their Bode argument on appeal. On appeal, the

Nygards simply asserted that they met the first Bode factor because they brought their

challenge to the district court’s subject matter jurisdiction sooner than the unsuccessful

plaintiffs in Bode. The Nygards do not explain how the length of delay in bringing a

challenge to subject matter jurisdiction is relevant to the first Bode factor, and we do not

find any support in Bode for the assertion that it is relevant. See Bode, 612 N.W.2d at

867. Without any evidence or argument as to how the district court manifestly abused its

authority to adjudicate the permit dispute, the Nygards failed to articulate their argument

in a way that would allow us to review it. See Schoepke v. Alexander Smith & Sons

Carpet Co., 290 Minn. 518, 519–20, 187 N.W.2d 133, 135 (1971) (“An assignment of

error based on mere assertion and not supported by any argument or authorities in

appellant’s brief is waived and will not be considered on appeal unless prejudicial error is

obvious on mere inspection.”).

       Finally, even if we excused the Nygards’ failure to raise the proper arguments

before the district court, and we were persuaded instead somehow by their unsupported

assertion under the first Bode factor, we would still reject their argument on appeal. The

Nygards failed to meet their other burden under Bode to show that the district court did in

fact lack subject matter jurisdiction over the permit dispute. The Nygards’ argument

purporting to demonstrate that the district court lacked subject matter jurisdiction over

those proceedings is entirely unpersuasive for at least five reasons.




                                             9
       First, the Nygards rely on an Orono ordinance to assert that the district court

lacked subject matter jurisdiction to review Orono’s denial of their permit.          Their

argument looks to the wrong authority to determine the extent of the district court’s

subject matter jurisdiction. The Orono ordinance states that “[t]he applicant . . . may

appeal by filing a written notice stating the action appealed from and stating the specific

grounds upon which the appeal is made.” Orono, Minn., Code of Ordinances § 78-99

(2003). This ordinance governs the procedure for an administrative appeal within the

city’s administrative structure. It does not address, much less determine, the subject

matter jurisdiction of the district court.

       The relevant authority to determine whether the district court had subject matter

jurisdiction over the Nygards’ challenge of Orono’s denial of their permit application is

chapter 462 of the Minnesota statutes, which states:

               Any person aggrieved by an ordinance, rule, regulation,
               decision or order of a governing body or board of adjustments
               and appeals acting pursuant to sections 462.351 to 462.364
               may have such ordinance, rule, regulation, decision or order,
               reviewed by an appropriate remedy in the district court,
               subject to the provisions of this section.

Minn. Stat. § 462.361, subd. 1 (2014). This statute unambiguously provides that the

district court had subject matter jurisdiction. Orono acted pursuant to its zoning authority

under section 462.357 to deny the Nygards’ permit application.            See Minn. Stat.

§ 462.357, subds. 1, 6 (2014). Orono’s decision to deny the Nygards’ permit means that

the Nygards were “aggrieved by an ordinance, rule, regulation, decision or order of a

governing body or board of adjustments and appeals acting pursuant to sections 462.351



                                             10
to 462.364.” Minn. Stat. § 462.361, subd. 1. Therefore, they were entitled to have the

denial “reviewed by an appropriate remedy in the district court.” Id. When the Nygards

followed through on their threat to “litigate the issue in [district] court,” they properly

sought judicial review of Orono’s actions in district court, thereby invoking the district

court’s subject matter jurisdiction over the dispute. See id. Just because the Nygards

failed to persuade the district court on the merits of their argument does not mean that the

district court lacked subject matter jurisdiction to adjudicate the dispute that the Nygards

brought to that court.

       The Nygards’ second unpersuasive argument is that the district court lacked

subject matter jurisdiction because the Nygards did not exhaust their administrative

remedies by filing an administrative appeal. This argument fails because the Nygards

read the relevant statute backward. Subdivision 2 of section 462.361 states that “[i]n

actions brought under this section, a municipality may raise as a defense the fact that the

complaining party has not attempted to remedy the grievance by use of procedures

available for that purpose under ordinance or charter.” Id., subd. 2 (2014) (emphasis

added). The statute provides that only the municipality may use the exhaustion-of-

administrative-remedies defense; the applicant may not raise the defense. See id. And

the municipality is not required to raise the defense; the municipality may do so. See id.

Since Orono did not raise this defense, the Nygards’ unpersuasive argument is not even

relevant on this record. And we note that this defense was not provided to applicants, as

the Nygards mistakenly assert, for good reason.        The Nygards’ faulty interpretation

would wreak havoc on the straightforward process of judicial review that the statute


                                            11
clearly provides. The Nygards’ mistaken reading would turn the municipality’s decision

not to raise its own affirmative defense into a weapon that applicants could use to

strategically, but improperly, challenge the district court’s decision after-the-fact when

the applicants themselves voluntarily failed to administratively appeal, as was the case

here. This is simply not how the affirmative defense was intended to work; the district

court has subject matter jurisdiction over disputes appealed under section 462.361 even if

the applicant does not exhaust its administrative remedies when the municipality does

not raise the exhaustion-of-remedies defense when further administrative review would

be futile. See Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App.

1992). There is no merit to the Nygards’ second argument.

       The third unpersuasive argument that the Nygards advanced on appeal is that they

actually did administratively appeal, but Orono either ignored or precluded their

administrative appeal before the Nygards brought the dispute back to district court. The

record is wholly devoid of any support for the Nygards’ claim that they attempted an

administrative appeal.   The Nygards claim that two letters that Orono received in

February 2014 show that they attempted to administratively appeal. But in both of these

letters, the Nygards explicitly told the city that they believed that they did not need a

permit to construct the turbine. The first letter ominously warned Orono that if the city

took any further action, the Nygards would litigate the dispute in district court. In the

second letter, the Nygards denied that they had a “tower” in their backyard in violation of

the zoning code, and for “proof” they provided Orono with a definition of the term

“tower” and included a picture of the Eiffel Tower, apparently to indicate that they were


                                            12
in compliance with Orono’s zoning code because they had not constructed a 1,000-foot-

tall iron-latticed structure in their backyard.

       Looking backward now, the letters accurately captured how this dispute played

out: the Nygards felt that they did not need a permit, and, if Orono thought otherwise, the

Nygards would take the dispute to district court. This is exactly what had already

happened. Now, more than a year later, they attempt to recast these documents as

administrative appeals, and characterize Orono’s legal arguments to the Nygards’

challenge in district court as thwarting that appeal. There is no support in the record for

these claims.

       The fourth problem with their argument on appeal is that even if the Nygards

somehow intended these letters to be an appeal, the Nygards failed to perfect their

“appeal.” The Orono code requires that any appeal to the zoning board must state the

specific action the applicant is appealing from, and the grounds on which the appeal is

based. See Orono, Minn., Code of Ordinances § 78–99 (2003) (providing for conditions

necessary to perfect zoning appeals). In the letters, the Nygards did not identify the

action that they were challenging. The letters explicitly stated that they did not need a

permit. And neither letter even used the word “appeal” or any synonym of that word.

Even if the Nygards intended these letters to be an appeal, their “appeal” was deficient

under the zoning code, and we cannot fault Orono for not treating these threatening

letters as appeals. It is hardly surprising that Orono informed the Nygards that it did “not

know the intent” of these letters.




                                                  13
        The final problem with the Nygards’ argument is that even if Orono could have

construed these letters as an appeal, Orono would have had no ability to adjudicate the

Nygards’ administrative “appeal.” What the Nygards portray as an appeal occurred in

February 2014. The Nygards’ purported “appeal” to the zoning appeals board came four

months after the district court’s judgment affirming Orono’s denial of their second permit

became a final judgment entered on the merits.1 Therefore, even if the Nygards tried to

administratively appeal the decision in February 2014, they would have been barred from

reopening the district court’s judgment affirming Orono’s denial of their second permit

application because Orono and the Nygards already litigated the permit denial in district

court which resulted in a final judgment on the merits.        See Wilson v. Comm’r of

Revenue, 619 N.W.2d 194, 198 (Minn. 2000) (precluding subsequent litigation of

previous claim decided on the merits by the same parties). Courts do not allow parties to

reopen closed cases for the practical reason of relieving prevailing parties “of the burden

of relitigating issues already determined.” Id. (quotation omitted). This principal reflects

our supreme court’s “disfavor” of multiple challenges involving the “same cause of

action” because it leads to “wasteful litigation.” Id. These concerns are well-founded

here.

        The Nygards needed to advance a very specific argument under Bode to

collaterally challenge the district court’s subject matter jurisdiction over the contempt


1
  The district court granted summary judgment in May 2013 and entered judgment in July
2013. That judgment became final in November 2013 following this court’s dismissal of
their appeal as untimely. City of Orono v. Nygard, No. A13-1459 (Minn. App. Nov. 5,
2013) (order).

                                            14
proceedings. They failed to raise this claim before the district court, and they did not

provide any argument on appeal as to how they satisfied Bode. Had they properly

preserved these arguments for appeal, we still would have rejected their arguments

because those arguments have no basis in the record and rely entirely on an erroneous

view of the relevant caselaw and statutes. We affirm the district court’s concise and well-

reasoned determination that it has subject matter jurisdiction over the contempt

proceedings.

                                            II.

       The Nygards also challenge the district court’s decision to deny them a stay in the

contempt proceedings. In their principal brief, they merely requested that we grant a stay

without offering a single argument as to why we should grant that relief. We do not

consider requests for relief when parties fail to provide any legal authority or argument

supporting their position. See Schoepke, 290 Minn. at 519–20, 187 N.W.2d at 135. In

their reply brief, the Nygards attempted to provide a reason as to why the district court

abused its discretion by denying their motion for a stay. We do not allow parties to

revive a waived argument in their reply brief when the respondent does not address the

waived argument, as was the case here. See Wood v. Diamonds Sports Bar & Grill, Inc.,

654 N.W.2d 704, 707 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003).

Accordingly, the Nygards waived their right to argue for a stay from this court.

       And, in any event, the Nygards failed to articulate any persuasive reason for a

stay. Their theory before the district court, and in their reply brief, was that they should

receive a stay because they filed a declaratory judgment action challenging an Orono


                                            15
ordinance as preempted by state law. That action has absolutely no relation to the

contempt proceeding. The Nygards’ argument purporting to draw a link between that

case and this one is premised on the false belief that there is still an open question about

whether their turbine complied with the Orono zoning requirements in 2010, or whether

the district court erred in 2013 in ruling for Orono. There is no unanswered question.

The district court settled this dispute two years ago, and its decision became final when

the Nygards’ appeal of that decision failed. See Wilson, 619 N.W.2d at 198 (precluding

parties from reopening litigation after court enters final judgment on the merits).

       These contempt proceedings have nothing to do with the 2010 version of the

Orono zoning code or how the district court analyzed this dispute in 2013. The contempt

proceedings are about one issue only: the Nygards’ flagrant and repeated refusal to

recognize the legitimacy and finality of the district court’s adjudication resolving their

dispute once their appeal failed. No subsequent developments in the Orono zoning code

could retroactively change the 2010 zoning code or affect how the district court analyzed

the zoning code in 2013. Any change to the zoning code since the Nygards built their

turbine is not relevant to the contempt proceedings. As 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.

       We note that the district court indicated that it would fine the Nygards and confine

them in jail if they refused to comply with its order. We think that these sanctions are

well within the district court’s discretion to “compel future compliance” with its order.

Mower Cnty. Human Servs. ex. rel. Swancutt v. Swancutt, 551 N.W.2d 219, 222 (Minn.


                                             16
1996) (quotation omitted). If the Nygards still continue to refuse to remove the turbine,

we note that the district court has “inherently broad discretion to hold an individual in

contempt” when the individual acts “out of disrespect for the judicial process.” See

Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986) (quotation omitted). The

district court should not feel constrained in its efforts to ensure that the Nygards comply

with its now-final judgment ordering them to remove the turbine, nor should the district

court consider any subsequent changes or challenges to the Orono zoning code as even

remotely relevant to the contempt proceedings. The only issue relevant to the contempt

proceedings is the Nygards’ intentional and inexcusable refusal to comply with the

district court’s order requiring them to remove the turbine, pole, and concrete support pad

from their property.

       Affirmed.




                                            17
