Matthew Berbee, et al., Respondents, vs. Vytas Rimas, et al., Appellants, and Vytas Rimas, et al., counterclaim plaintiffs, Appellants, vs. Matthew Berbee, et al., counterclaim defendants, Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-209

 

Matthew Berbee, et al.,

Respondents,

 

vs.

 

Vytas Rimas, et al.,

Appellants,

 

and

 

Vytas Rimas, et al.,

counterclaim plaintiffs,

Appellants,

 

vs.

 

Matthew Berbee, et al.,

counterclaim defendants,

Respondents.

 

Filed October 3, 2000

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. 93-4517

 

Peter M. Banovetz, Matthew M. Jones, Aafedt, Forde, Anderson & Gray, Suite 3100, 150 South Fifth Street, Minneapolis, MN  55402; and

 

Thomas L. Owens, 520 Marquette, Suite 900, Minneapolis, MN  55402 (for respondents)

 

Vytas M. Rimas, 19715 Hillside Street, Excelsior, MN  55331 (appellant attorney pro se)

 

            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

This case concerns a boundary line dispute between appellants Vytas Rimas and Marna Klammer and respondents Matthew and Donna Berbee, owners of adjacent residential lots in Deephaven.  Respondents initiated this action in 1992 to determine the boundary line between the properties.  The dispute apparently arose after surface water caused by the construction of appellants' home ran off their property and onto respondents'.  After referring the matter to the examiner of titles to act as referee in the matter, the district court determined the boundary line between the properties in accordance with the referee's findings and conclusions.  Appellants now claim that the district court (1) erred in concluding that the parties did not agree to the location of the boundary line in a letter dated November 17, 1991; (2) erred in failing to consider or make findings on whether respondents should be estopped from disputing the boundary line; (3) erred in adopting the referee's report that improperly located the two northerly judicial landmarks; and (4) abused its discretion in awarding costs and disbursements.  Because we observe no error in the district court's findings and conclusions, and no abuse of discretion in its award of costs and disbursements, we affirm.

D E C I S I O N

            1.         Effect of Letter Agreement

            Appellants claim that a November 17, 1991, letter between the parties, in conjunction with their prior statements, established a contract in which respondents agreed to the location of the boundary line as marked in a survey conducted by appellants' surveyor, Coffin and Gronberg (Gronberg).  After respondents complained to the City of Deephaven about drainage problems caused by the construction of appellants' home, the parties and the builder wrote a joint letter to the Deephaven building inspector stating:

At your request, all parties have reached the following agreement:

 

1.         Boyer Construction with the consent of owner agrees to build up a gently graded berm with black dirt adjacent to a portion of the driveway and cul de sac, which is shown in the portion of the survey that is attached hereto.

 

2.         Matthew and Donna Berbee agree to the above berm and withdraw all of their objections to the building site.

 

The unofficial survey attached to the letter shows a portion of the property and includes a drawing of the berm and proposed driveway. 

We conclude that the letter does not constitute a contract between the parties regarding location of the boundary line and that there is no ambiguity in the letter agreement that would allow this court to consider other evidence on this issue.  The brief letter and its attached drawing pertain only to resolution of the drainage issue.  The letter contains no reference to the boundary line, and the accompanying drawing was attached merely to show the placement of a berm.  The agreement simply does not encompass the boundary line issue merely because it includes language waiving "objections to the building site."  Read in context, the agreement applies only to the drainage issue.  See Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn. 1998) ("[t]he cardinal purpose of construing a contract is to give effect to the intention of the parties as expressed in the language they used in drafting the whole contract") (quotation omitted); Swanson v. Parkway Estates Townhouse Ass'n, 567 N.W.2d 767, 768 (Minn. App. 1997) ("A court's primary role in interpreting contracts is to ascertain and give effect to the intention of the parties.") (quotation omitted).

            2.         Estoppel

            Appellants next argue that respondents should be estopped from objecting to the boundary line as determined by the Gronberg survey because (1) they waited to object to the survey until after appellants' house was built, and (2) in the November 17, 1991 letter, they agreed to "withdraw all * * * objections to the building site."  Appellants further contend that the district court erred in failing to make findings on estoppel. 

            These claims are without merit.  First, as discussed earlier, the letter agreement does not apply to the boundary line issue and does not provide a factual basis for arguing estoppel.  Second, appellants failed to offer facts that would prove estoppel. Under the doctrine of practical location, a landowner may prove that a practical boundary exists by establishing that the adjacent landowner acquiesced in, agreed to, or is estopped from denying the boundary line.  Weis v. Kozak, 410 N.W.2d 903, 906 (Minn. App. 1987).  "[E]stoppel as it relates to boundary by practical location requires knowing silence on the part of the party to be charged and unknowing detriment to the other."  Halverson v. Village of Deerwood, 322 N.W.2d 761, 769 (Minn. 1982) (quotation omitted).  Here, because respondents did not know where the actual boundary line was until after they hired their own surveyor in 1992, respondents' alleged failure to object to the Gronberg survey before completion of construction does not provide a factual basis for arguing estoppel.  Further, the district court did not err in failing to make findings on this issue because the issue was not necessary to its decision.  See Minn. R. Civ. P. 52.01; 2 David F. Herr & Roger S. Haydock, Minnesota Practice § 52.6, at 120 (1998) ("Not all issues raised in a case require findings.  Issues not essential to the decision need not have findings.").

            3.         Validity of Prior Orders and Surveys 

            Appellants next argue that the amended judgment determining the boundary line is based on orders and decrees that are legally erroneous.  Appellants claim that the judicial survey completed by Gronberg after the court-ordered judicial determination of the boundary line was accurate; they argue that the referee's second report, ordered after respondents questioned the accuracy of the Gronberg survey and from which all of the later orders emanated, was inaccurate.  They also claim that the referee improperly relied on a later survey conducted by W. Brown Land Surveying, Inc. (Brown).

            We are not persuaded by these arguments.  The referee examined the judicial landmarks set by Gronberg and, after referring to the pertinent surveys conducted on the property, concluded that the landmarks on the north side were improperly placed east of the fence to which the parties had previously acquiesced as covering a portion of the boundary line.  The original referee's report mandated that the landmarks to the north of the fence be placed on the west side of the fence.  The placement of the Gronberg judicial landmark was thus inconsistent with the original referee's report and therefore improper.

            Further, appellants provide no evidence other than their bald claim that the judicial landmarks reset by Brown did not comply with the original referee's report.  Appellants claim that the original report requires placing one of the northern judicial landmarks at a "1/2-inch pinched iron located at the Northwest corner" of respondents' property.  The survey conducted by Brown after respondents questioned Gronberg's placement of the judicial landmarks noted that Gronberg removed the iron when setting the first judicial landmark.  Thus, any failure on Brown's part to locate the pinched iron does not undermine the accuracy of its reset judicial landmarks.  The record otherwise supports that Brown complied with all court orders when resetting the judicial landmarks.       

            Appellants claim that the Brown survey was ex parte and should not have been relied upon by the second referee.  The referee was within his powers to order and rely on the survey under the order of reference assigning him the case.  See Minn. R. Civ. P. 53.03 (subject to reference order, referee "has and shall exercise the power to * * * do all acts and take all measures necessary or proper for the efficient performance of the referee's duties specified in the order").  Because the Gronberg judicial survey was called into question, the referee authorized another surveyor to examine the placement of the judicial landmarks.  For these reasons, the underlying orders are not legally erroneous and support the amended judgment.

            4.         Costs and Disbursements 

            Finally, appellants claim that the $9,885.27 award of costs and disbursements to respondents was improper.  They argue that the parties stipulated that they would bear their own costs, that they prevailed below, that the award of expert fees to respondents was improper, and that costs were improperly awarded without an evidentiary hearing.

            In a November 11, 1994 stipulation following the court's adoption of the referee's first report, the parties agreed to have Gronberg set judicial landmarks and prepare a plat of survey as per the referee's report.  The parties also stipulated that they would each bear their own costs and attorney fees.  The stipulation was subject to both parties' acceptance of the surveyor's report and included the conditional language that the parties agreed to an order determining the boundary line "[u]nless either party objects to the report made by said surveyor on the grounds that it does not comply with the Report of the Examiner[.]"  This stipulation was later vacated by court order because respondents objected to the Gronberg judicial survey. 

            We conclude that the court did not abuse its discretion in vacating the stipulation when the boundary line dispute continued after the first judicial survey.  See Anderson v. Anderson, 303 Minn. 26, 32, 225 N.W.2d 837, 840 (1975) (determination of whether to vacate stipulation discretionary and reversed on appeal only upon showing that court "acted so arbitrarily as to constitute an abuse of that discretion").  Appellants argue that the stipulation on costs should have been upheld even though the boundary line was not finally determined at the time of the stipulation.  This argument is unpersuasive in light of the protracted litigation that occurred after the stipulation; the agreement on costs was dependent on the final resolution of the boundary line dispute.

            Appellants also claim that they were the prevailing party below and that as the prevailing party the district court should have awarded them costs and disbursements.  See Minn. Stat. § 559.23 (1998) (allowing discretionary award of costs and disbursements in boundary line disputes); Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn. 1998) (in determining prevailing party, "the general result should be considered, and inquiry made as to who has, in the view of the law, succeeded in the action") (quotation omitted).  We conclude that respondents were the prevailing party.  The court rejected completely appellants' claims on the location of the boundary line and their expert's initial survey and judicial survey.  While the court did not entirely adopt respondents' claimed location of the boundary line, it found that respondents' expert's first survey reflected the true, platted boundary line, but it found that under the doctrine of adverse possession or practical location the boundary line should be located, in part, at the fence.  The court adopted respondents' expert's initial survey, its final judicial survey, and its placement of judicial landmarks.  Under these facts, the district court properly concluded that respondents were the prevailing party for purposes of assessment of costs and disbursements.

            Appellants also claim that $3,405 of the $4,525 the court awarded respondents for expert fees was "without legal basis, because the expenses were incurred subsequent to the January of 1994 proceedings before the Referee[.]"  In boundary line disputes, the court "shall make such order respecting costs and disbursements as it shall deem just."  Minn. Stat. § 559.23.  Further, an expert "in any profession" who is "summoned" may be awarded "just and reasonable" fees.  Minn. Stat. § 357.25 (1998).  Expert witness fees may be for required assistance the expert provides, in addition to such typical fees as deposition costs and trial testimony.  5 Steven J. Kirsch, Minnesota Practice § 1.53, at 91 (1990).

            Given the court's broad discretion in awarding fees and its necessary reliance on surveyors in this case, the court did not abuse its discretion in (1) awarding expert fees to respondents for the work Brown did in providing its surveyor to testify at the hearing that led to the first referee's report; (2) identifying the errors in the Gronberg judicial survey; and (3) conducting the final judicial survey and placing judicial landmarks.  The record supports that the fees were incurred for those enumerated purposes and that the information provided was essential to determination of the case.  Although appellants contend that expenses for making a plat or survey are not taxable, the current statute does not prohibit such awards.

            Appellants also claim that they were entitled to an additional evidentiary hearing after September 9, 1999 to challenge one of respondents' claimed fees.  An evidentiary costs hearing was held on September 16, and appellants appeared at that hearing.  Thus, they received an opportunity to be heard on this issue.

            Affirmed.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.