Petition for Writ of Certiorari — Johnson v. City of Shorewood (No. 08-127)

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Supreme Court, U.S.

(3) FILED

No.

OFFICE UT FHE CLEAR

Sn The

Supreme Court of the Anited States

RONALD JOHNSON,

Petitioner,

CITY OF SHOREWOOD; CITY OF MINNETONKA;

RILEY-PURGATORY-BLUFF CREEK WATERSHED

DISTRICT; TRIVESCO, a partnership; and its Partners;

ROBERT H. MASON, INC., a corporation; HIGHLAND

PROPERTIES, INC., a corporation; STEINER AND

KOPPELMAN, INC., a corporation; and HIGHLAND

VILLA BUILDERS, INC., a corporation,

Respondents.

On Petition For A Writ Of Certiorari

To The Minnesota Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

ERICK G. KAARDAL

MOHRMAN & KAARDAL, P.A.

33 South Sixth Street

Suite 4100

Minneapolis, Minnesota 55402

(612) 341-1074

Attorney for Petitioner

Ronald Johnson

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL. COLLECT (402) 342-2831

QUESTIONS PRESENTED

Under the Supreme Court’s precedential rulings

of SanRemo Hotel, LP v. City and County of San

Francisco, Cal., 545 U.S. 323, 325 (2005) and

Williamson County Reg’l Planning Comm. v. Hamil-

ton Bank, 473 U.S. 172 (1985), a farmland owner

simultaneously sought claims in state court for just

compensation under state law and, in the alternative,

the denial of such compensation as violative of the

Federal Constitution’s Fifth Amendment for unlawful

governmental takings. The lower court’s judgment

against the farmland owner rested solely on state law

— ignoring the farmland owner’s federal Just Com-

pensation Clause claims and rights.

1. After SanRemo Hotel, can a state court

preclude adjudication of a post-judgment

as-applied Just Compensation Clause

§ 1983 claim, based in part on extrinsic

fraud and in part on insufficient consti-

tutionally-guaranteed just compensa-

tion, as an impermissible collateral

attack on the prior state court judg-

ment?

2. Under Williamson and SanRemo Hotel,

does an as-applied Just Compensation

Clause § 1983 claim accrue, if ever, when

(i) the onginal taking occurs; (ii) upon

entry of the state court condemnation fi-

nal judgment awarding less compensa-

tion than the Just Compensation Clause

QUESTIONS PRESENTED ~— Continued

requires; or (iii) after state court denial

of state post-judgment proceedings and

remedies?

3. The Court of Appeals found constitu-

tional takings of property for public use

not judicially for compensation under

the Federal Constitution if the govern-

ment takings — as a matter of degree — is

temporary. May a state court preclude

Just Compensation Clause claims for

temporary physical takings based on the

availability of state law torts against the

government such as nuisance or tres-

pass?

ill

LIST OF PARTIES

The caption of the instant case lists all parties to

the proceeding.

CORPORATE DISCLOSURE STATEMENT

The Petitioner, Ronald Johnson, is not and does

not represent a nongovernmental corporation. Only

Ronald Johnson — acting pro se — filed a state notice

of appeal without the signature of his wife Dee John-

son, therefore, she did not perfect an appeal. Mr.

Johnson, because he is not an attorney, could not file

an appeal on behalf of another family member.*

* In re Conservatorship of Riebel, 625 N.W.2d 480, 481

(Minn. 2001).

TABLE OF CONTENTS

QUESTIONS PRESENTED ...........ccscccssronscessecenses

Rape GRE WEE IM eco tenses cedcs ccs entovadcungusehenesenersnens

CORPORATE DISCLOSURE STATEMENT ........

Fr IE BONE OY ihecccirgtscternscesssnsapincatanaceresexesenes

STATEMENT OF JURISDICTION ............0

CONSTITUTIONAL AND STATUTORY PRO-

VE Ne Be VIET Ci oicic ccs censeccesnicsacsseesvoesnessness

STATEMENT OF THE CASBE.....................ceeeeeeees

a ai ieheddg ce ciciausior ecncersssactaatenienncernines

1. Johnson’s Litigation Against Shorewood ....

2. Evidence of Continual Governmental

Flooding of Private Property After the

2000 State Court Judgment Remained Un-

I cet catirdecitsprnrucn ataemeninesntecdaa

3. The Lower State Court’s 2000 Final Judg-

ment Award of Damages Did Not Include

Payment for Post-Judgment Flooding

4. Shorewood Misrepresented in State Court

That the Corps of Engineers had Desig-

nated a Clean Water Act Wetland on John-

son’s Property Prior to Shorewood

Installing the Culvert/Dam .....................004.

5. Johnson Received no Compensation for a

Temporary Governmental Taking...............

TABLE OF CONTENTS - Continued

Page

ARGUMENTS FOR ALLOWANCE OF THE

I. Sanktemo Hotel “conspicuously leaves open”

Numerous Legal Issues Relating to William-

son As-Applied Just Compensation Clause

§ 1983 Claims Causing Unequal Legal

Treatment of These Claims Nationwide .......

A. State Courts Must Consider and Adju-

dicate, After Denying Any Compensa-

tion Under State Law, Asserted

Federal Claims That Denial of Com-

pensation Under State Law Results in

a Valid Williamson As-Applied Just

Compensation Clause § 1983 Claim.....

B. Determining the Accrual of As-Applied

Just Compensation Clause § 1983

Claims Will Reconcile Existing Con-

flicts Among, and Unequal Treatment

Being Provided by, the Lower Courts...

C. A Determination of What Constitutes

a “full and fair opportunity to be

heard” is Required Before the Applica-

tion of Res Judicata and Collateral

Estoppel Principles to a Williamson

As-Applied Just Compensation Clause

§ 1983 Claim Challenging a Prior

State Court’s Condemnation Judgment

and Dtate Proeesgures .....................0.0..+.

TABLE OF CONTENTS — Continued

Page

II. The Court Should Resolve Whether Tem-

porary Physical Takings Claim Fall Under

Teleprompter’s Mandate That Every Tak-

ing be Justly Compensated .....................0065 27

I Sis vacicen Sea rstactibeltsoavesiesteriseneematdnans 29

APPENDIX INDEX

Minnesota Court of Appeals decision dated

I a la canis dys caenubsasbebaudagiaewass App. 1

Minnesota Court of Appeals Order denying

Appellant Johnson’s request for judicial

notice of public Army Corps of Engineers

opinion letters dated February 9 and March

8 2007, dated December 5, 2007.................... App. 43

Minnesota State District Court Order and

Memorandum dated October 10, 2006.......... App. 47

Minnesota Supreme Court Order denying

review of Court of Appeals decision, dated

ee ei bie viride Gronetrisctpayitdeminecenesdns App. 74

Johnson’s Minnesota Court of Appeals Reply

Memorandum to Opposition to request for

judicial notice of federal agency communica-

CAOEEE, GALORE ATU G, FOOT «....c0cccsccessorsesesscesesene App. 76

Vil

TABLE OF CONTENTS — Continued

Page

Johnson’s Motion to Minnesota Court of

Appeals for judicial notice of federal agency

public communications, dated March 26,

SUPE wivcsntancissarsiedsidaleinanciendaaledsabtmninctete App. 81

(a) Corps of Engineers letter opinion

dated Merch G, BOOT ...........<.sssessesecs App. 89

(b) Corps of Engineers letter opinion

dated February 8, 2007.......... bebe App. 96

McCombs Frank Roos Associates, Inc. letter

dated January 25, ZOOG .........ccccccsosscesscseesess App. 100

United States Court of Appeals for the

Eighth Circuit decision dated March 5, 2004App. 105

Minnesota State District Court Notice of Entry

of Judgment dated January 5, 2000.............. App. 124

Minnesota State Court of Appeals, unpub-

lished opinion, dated April 21, 1998............ App. 125

Minnesota District Court Findings of Fact,

Conclusions of Law, and Order for Judgment

Gated OCtaDer Za, TIGG .....ccccsscccccescsscesceereess App. 132

Partial trial transcript, Minnesota District

Court, dated October 22, 1996..................... App. 135

Minnesota District Court Findings of Fact,

Conclusions of Law and Order for Judgment

GOCOG AMMURt 17, FIGS acces cseccccscsevesesescesssones App. 152

Vill

TABLE OF AUTHORITIES

Page

CASES:

Biddison v. City of Chicago, 921 F.2d 724 (7th

CA GIS ED secncvocsocericedinvasssaicecuteuneneeiiendas anneal 24

Breneric Assoc. v. City of Del Mar, 69

Cal.App.4th 166, 81 Cal.Rptr.2d 324 (1998) ....18, 25

City of Shorewood v. Johnson, 1998 Minn.

App., 1998 WL 188561 (Apr. 21, 1998)............... 4,13

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, Cal., 482

RE, Te CRE Dcescinscsauvevelousdedeeneieenaiednees 29

Hallco Texas, Inc. v. McMullen County, 221

S.W.3d 50, Tex. Sup. Ct. J. 314 (Tex. 2006)....19, 20, 25

Hospital Underwriting Group, Inc. v. Summit

Health Ltd., 63 F.3d 486 (6th Cir. 1995) ................ 3

Johnson v. City of Shorewood, 360 F.3d 810,

cert. denied, 543 U.S. 810 (2004).............000.... passim

Johnson v. Shorewood, 2008 Minn. App., 2008

WL 434680 (Feb. 19, 2008)....................cceeeeees 1, 4, 25

Loretto v. Teleprompter Manhattan CATV Corp.,

GGG ES Bh: SE LI eis co setsncecticratcnalieeeminaeedn 28

Lucas v. South Carolina Coastal Council, 505

UB TO AT iv crstacssctisnssccss appease 28

Melillo v. City of New Haven, 249 Conn. 138,

TORRE BEG AN ick 18, 25

Norco Construction v. King County, 801 F.2d

TABLE OF AUTHORITIES — Continued

Page

Palazzolo v. Rhode Island, 533 U.S. 606

EERE ESS SEE ae 20, 28, 29

SanRemo Hotel, LP v. City and County of San

Francisco, Cal., 545 U.S. 323 (2005).............. passim

Sonya C. By and Through Olivas v. Arizona

School for the Deaf and Blind, 743 F. Supp.

I oi svepayanpeuescdaepeueeubeunsviaevevees) 3

Williamson County Reg’l Planning Comm. uv.

Hamilton Bank, 473 U.S. 17 (1985)... passim

Yamagiwa v. City of Half Moon Bay, 523

F.Supp.2d 1036 (N.D. Cal. 2007) ..........ccrssssessccoveees 11

CONSTITUTIONAL PROVISIONS:

I 2 ncn npn westadeovausienaweaneendee 1

STATUTES:

I ssc csccacdsicasscecteseevsonsesccesouneecteuviuwe passim

click cycesackexseheravescecsveseveseuteisverss o, 10, 12

]

OPINION BELOW

The Minnesota Court of Appeals unpublished

decision of February 19, 2008. Johnson v. City of

Shorewood, 2008 Minn. App., 2008 WL 434680 (Feb.

19, 2008). The Minnesota Supreme Court denied re-

view without an opinion on April 29, 2008. App. 74-75.

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U. S. Const. amend. V:

No person shall be .. . deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use without just compen-

sation.

42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immu-

nities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. . . .

STATEMENT OF THE CASE

Introduction

The City of Shorewood built a culvert/dam that

flooded a decades-long dry ditched-and-drained land

mass — used as farmland. Compensated for the initial

flood damage — $63,000 — but receiving zero compen-

sation for that taking, the private property owner

later discovered that more adversity would come by

the hands of the government. Ronald Johnson, the

property owner, later discovered that Shorewood: (i)

would take no action to mitigate future major flood-

ing events; (ii) would allow the dam to continue to fill

with silt the once self-scouring, free-flowing ditch; (1i1)

would perpetually and permanently create flooding

conditions crippling any conversion of the farmland

into marketable developable property; and finally, (iv)

would allow diversion of surface water run-off onto

Johnson’s property that in concert with the cul-

vert/dam, compounded and provided conditions to

induce flooding even during minor rain events.

Efforts to litigate based on these subsequent

discoveries for just compensation for Johnson’s de-

scribed permanent governmental takings have proven

futile. Although Johnson pled in post-judgment state

court proceedings state law takings claims and, in the

alternative, the denial of compensation as violative of

the Federal Constitution’s Fifth Amendment — as the

Supreme Court contemplated in Williamson and its

successor SanRemo Hotel — the state court precluded

adjudication of the federal claims under the doctrines

of res judicata and collateral estoppel from the state

court judgment being challenged. The post-judgment,

as-applied Just Compensation Clause § 1983 claim —

essentially a collateral attack’ based in part on ex-

trinsic fraud’ and in part on insufficient constitution-

ally-guaranteed compensation — sought relief based

on federal law against the state court’s final judgment

and state procedures regarding the subsequently-

discovered governmental takings. As the U.S. Court

of Appeals for the Eighth Circuit stated after direct-

ing parties to take the matter back to state court:

[I]f the state courts deny relief, the Johnsons

may seck review by the United States Su-

preme Court.”

' See, generally, 21A Fed. Proc. L. Ed. § 51:221 (collateral

attack on judgments); Restatement (Second) of Judgments § 12

(1982) (contesting subject matter jurisdiction in subsequent

proceeding).

* See, e.g., Hospital Underwriting Group, Inc. v. Summit

Health Ltd., 63 F.3d 486 (6th Cir. 1995); Sonya C. By and

Through Olivas v. Arizona School for the Deaf and Blind, 743

F. Supp. 700 (D. Ariz. 1990).

* Johnson v. City of Shorewood, 360 F.3d 810, 818-19, cert.

denied, 543 U.S. 810 (2004).

1. Johnson’s Litigation Against Shorewood

Johnson initially prevailed in an inverse con-

demnation proceeding against Shorewood regarding

the government’s construction of a culvert/dam.* The

condemnation proceeding sought after a major flood-

ing event resulted in Shorewood’s payment of $63,000

for single flood event “clean-up costs” and “zero”

compensation for the taking. App. 133-34. Although

commenced in 1994, the lower court finally entered

final judgment in January 2000. App. 124.

At the time, Johnson did not appeal from the

$63,000 clean-up costs/zero condemnation award in

the initial proceedings because on its face the final

award dealt with a one-time flooding event. The zero

compensation — on its face — did not cover subsequent

flooding events. Furthermore, Shorewood had prom-

ised to negate subsequent flooding events through

mitigation projects.

But, after entry of the 2000 final judgment,

Johnson discovered:

(1) Shorewood did not intend to negate

subsequent flooding events through

mitigation projects;

“ The lower courts have described the construction as a

“control structure” or “a road berm, culvert, and a pond control

structure ...” that “ ... blocks a ditch that drains abutting

property owned by [Ronald Johnson].... ” See e.g., City of

Shorewood v. Johnson, 1998 Minn. App., 1998 WL 188561 (Apr.

21, 1998) and Johnson v. Shorewood, 2008 Minn. App., 2008 WL

434680 (Feb. 19, 2008).

(12)

(11)

(iv)

(v)

(vi)

(vii)

As a result of these findings, Johnson commenced

another state court action. Believing he had exhausted

Subsequent governmental flooding as a

result of the culvert/dam did occur;

Shorewood allowed additional diver-

sions of surface-water discharges to en-

ter his property through the drainage

ditch to the government’s dammed

ditch holding pond;

The culvert/dam and holding pond cre-

ated conditions to allow silt to fill the

ditch and perpetually diminish the ef-

fectiveness of the decades-old (circa

1950s) self-scouring, free-flowing ditch

to discharge water;

The additional surface-water diversions

and silt filling of the drainage ditch

worked in concert to perpetually cause

continual flooding onto decades-old dry

farmland even during minor rain

events;

The continual governmental induced

flooding affected the market value of

the decades-old dry land mass as devel-

opmental property; and

Contrary to Shorewood’s representa-

tions, the U.S. Corps of Engineers did

not determine the known decades-old

ditchec dry land mass as a designated

pre-taking (pre-culvert/dam) Clean Wa-

ter Act wetland under 33 U.S.C. § 1344.

state court proceedings, Johnson utilizing the Su-

preme Court precedent in Williamson brought a post-

judgment, as-applied Just Compensation Clause

§ 1983 claim against Shorewood in U.S. District

Court. (“The nature of the [Just Compensation

Clause] constitutional right ... requires that a prop-

erty owner utilize [state court] procedures for obtain-

ing compensation before bringing a § 1983 action.”)

Williamson County Reg’l Planning Comm. v. Hamil-

ton Bank, 473 U.S. 172, 194 n. 13 (1985).

Although affirming the U.S. District Court’s

decision to dismiss without prejudice, the U.S. Court

of Appeals for the Eighth Circuit in 2004 recognized

Johnson’s post-judgment as-applied Just Compensa-

tion Clause § 1983 claim. The Eighth Circuit held,

however, that Johnson must exclusively use state

court procedures to simultaneously seek any avail-

able post-judgment state compensation remedies and,

if denied those, any as-applied Just Compensation

Clause § 1983 remedies:

For the 42 U.S.C. § 1983 claims against

Shorewood, Minnetonka, and the Watershed

District, we agree that “the record does not

show the existence of any potential constitu-

tional violation ... other than the alleged

taking of the Johnsons’ property without just

compensation.”

Johnsons argue that they were denied just

compensation due to “misrepresentations”

perpetrated in the state court proceedings-

misrepresentations which they allegedly

discovered after the fact. Whatever the valid-

ity of these allegations, Rooker-Feldman

stands as a bar to federal review because the

Johnsons’ requested relief “would effectively

reverse the state court decision or void its

ruling.”

The Johnsons’ remedy, if any, is to return to

state court and utilize its procedures for

remedying fraud. If the state courts deny re-

lief, the Johnsons may seek review by the

United States Supreme Court.

Johnson, 360 F.3d at 818-19 (citations omitted).

Following the directions of the Eighth Circuit,

Johnson then sought in state court post-judgment

declaratory and compensatory remedies available

under state law while simultaneously seeking avail-

able federal remedies using the precedential ruling of

Williamson as a foundation for his post-judgment, as-

applied Just Compensation Clause § 1983 claims

against Shorewood.

Ultimately, Minnesota state district court

dismissed Johnson’s claims. The court precluded

adjudication of Johnson’s as-applied federal Just

Compensation Clause § 1983 claim based on the 2000

state judgment Johnson challenged. The Minnesota

Court of Appeals agreed. In affirming the dismissal of

Johnson’s claim and denial of summary judgment, the

Minnesota Court of Appeals simultaneously held that

the 2000 state court condemnation final judgment,

under the doctrines of res judicata and collateral

estoppel, precluded Johnson’s Williamson as-applied

Just Compensation Clause § 1983 claim and held

under Minnesota state law no post-judgment declara-

tory or compensatory procedures were available to

address Johnson’s post-judgment, non-compensated

governmental flooding events.

In so doing, the Minnesota Court of Appeals

ignores the mandate of SanRemo Hotel, Williamson’s

successor, that required the Minnesota Court of

Appeals to hear “simultaneously [Johnson’s] request

for compensation under state law and [Johnson’s]

claim that, in the alternative, the denial of compensa-

tion would violate the Fifth Amendment of the Fed-

eral Constitution.” SanRemo Hotel, 545 U.S. at 325

(2005), citing Williamson, 473 U.S. 172 (1985).

2. Evidence of Continual Governmental Flood-

ing of Private Property After the 2000 State

Court Judgment Remained Unchallenged.

It is undisputed that Shorewood’s flooding on

Johnson’s private property, caused by Shorewood’s

culvert/dam in Johnson’s drainage ditch, continued

after the 2000 state court’s final judgment. Shore-

wood did not carry out any of the flooding mitigation

projects discussed with Johnson in 1997 and 1998. As

an unchallenged expert opinion found in 2006, John-

son’s pioperty did and continues to suffer from gov-

ernmental flooding:

On December 8, 2005 MFRA completed a site

visit to observe the current condition of the

“tractor” culvert [on Johnsons’ property] and

associated drainage ditch...

As MFRA predicted in 1995, sediment depo-

sition has caused the culvert to be almost en-

tirely submerged and the ditch function

seriously further impaired. As MFRA also

noted in 1995, prior to the ditch alterations

the ditch had sufficient gradient to largely

self-scour to free itself of sediment. The al-

teration of the ditch on City property (Water-

ford Outlot A) was intended to permanently

impound water at elevation 910 feet MSL

providing zero upstream ditch gradient to

the culvert. This along with frequent flood

events and off-site public storm water dis-

charges to the site has caused water to

frequently pond at the 914-foot or higher ele-

vation and subsequently caused sediments to

deposit within the portion of the drainage

ditch on Johnsons’ property which is basically

an extension of the Waterford Outlot A pond.

App. 101-02. This expert opinion and prior referenced

expert opinions remained unchallenged throughout

the state court post-2000 proceedings.

3. The Lower State Court’s 2000 Final Judg-

ment Award of Damages Did Not Include

Payment for Post-Judgment Flooding Events.

There is nothing in the state court’s 2000 final

judgment that included a compensation award for

continual governmental flooding. In fact, the lower

court accurately described the award as money

exclusively for clean-up costs of the initial, single

flooding event: “[The $63,000 of] clean-up costs ap-

pear to be based on clearing dead trees from the

drainage ditch. Appellant testified that the flooding

caused by Shorewood killed a number of mature trees

and that his time cleaning up the property (3,400

hours) should be compensated at an appropriate

hourly rate ($20).” Factually unchallenged — Shore-

wood has paid to date “zero” for governmental flood-

ing of Johnson’s farmland after 2000.

Shorewood Misrepresented in State Court

That the Corps of Engineers had Designated

a Clean Water Act Wetland on Johnson’s

Property Prior to Shorewood Installing the

Culvert/Dam.

After the 2000 final judgment, Johnson discov-

ered Shorewood had fraudulently or mistakenly

misrepresented in the 1996 state jury trial that the

Corps of Engineers had determined a pre-taking, pre-

1984 Clean Water Act wetland on his property under

the federal Clean Water Act, 33 U.S.C. § 1344. Shore-

wood used the misrepresentation to reduce Johnson’s

compensation by reducing the pre-taking value of the

property. Based on misrepresenting the Corps’ find-

ings of pre-taking Clean Water Act wetlands, Shore-

wood also erroneously claimed that Johnson’s

* Johnson also received interest and some attorney’s fees

and costs per the 2000 final judgment.

property had city-designated wetlands prior to the

installation of the culvert/dam.° The irony, of course is

here, a Clean Water Act wetland or city-designated

wetland could not have existed prior to the installa-

tion of the culvert/dam in 1985 because Johnson’s

property unequivocally had been ditched-and-drained

“dry” since the 1950’s.

During the current litigation, Johnson presented

irrefutable evidence that the U.S. Corps of Engineers

had not determined a pre-taking, pre-1984 Clean

Water Act wetland. Furthermore, evidence also

included that the Corps does not do historical de-

lineations of pre-taking wetlands under the Clean

Water Act.

The Corps later confirmed the evidence. Contrary

to Shorewood’s representations, the Corps did not

determine a pre-taking, pre-1984 Clean Water Act

wetland: “[olver the last 14 years, we have explained

many times that you may need a permit to discharge

dredged or fill materials in parts of your property

that are wetland, but that most of your property may

be nonwetland.” (emphasis added) App. 98. See also

* Recently, the U.S. District Court for the Northern District

of California faced similar municipal arguments stating, “Ithe

City’s] conduct is noteworthy because it calls into question the

trustworthiness of the opinions and conclusions presented by the

City at trial regarding the location and cause of wetlands on

Beachwood. Having exhibited a pattern of shifting consultants

and shifting definitions, the City comes to trial with impaired

credibility on the key wetlands issues in the case.” Yamagiwa uv.

City of Half Moon Bay, 523 F Supp.2d 1036, 1063 (N.D. Cal. 2007).

86. Thus, the Corps never declared Johnson’s prop-

erty as wetland. “You have never been told either

there was or was not ‘33 U.S.C. § 1344, Section 404

federal jurisdiction wetland prior to construction of

the ‘road/dam.” (emphasis added) App. 95. See also 86.

Nonetheless, despite the evidence of extrinsic

fraud present in this case, during the most recent

appellate process, the Minnesota Court of Appeals

refused to recognize Johnson’s arguments for judicial

notice of the federal agency’s public documentation

disclosed only during the appellate process — i.e., the

Corps letters dated February 8, 2007 and March 8,

2007 — further demonstrating the extrinsic fraud.

App. 43-46; 76-104.

The Corps’ evidence sought to be brought before

the court, contradicted Shorewood’s governmental

expert Ronald P. Peterson’s testimony during the

original condemnation proceeding in 1996 (resulting

in the $63,000 award of damages for the single-

flooding-event clean up costs, but zero compensation

for the taking):

Q. OK. Now, as I understand your testi-

mony, you think that — you will agree

that if the Johnson property was not —

was not a wetland before the taking and

is now a wetland, you would agree that

the Johnsons have sustained damage,

would you not?

Yes.

Q. OK. We'll write damage (indicating) pre-

taking, wetland — Oh, no. Wetland and

after wetland. Under those circum-

stances, you would agree that Mr. John-

son — that the Johnsons have sustained

damage. Correct?

A. Correct.

* * *

Q. You’re aware that the Corps of Engi-

neers has not asserted jurisdiction over

this property, are you not?

A. They most certainly have.

a ae

Q. And what language in those letters spe-

cifically leads you to believe that the

Corps believed that Johnsons’ property

was a wetland.

A. Well, there are three letters. One is Feb-

ruary 7, 1994, one is from March 2nd,

1993, one 1s from March 17th, 1993.

* KOK

Q. Is it your testimony that all of this area

was and is wetland?

A. Yes.

City of Shorewood v. Johnson, Case No. CD-2344,

Trial Transcript 10-22-96. App. 140-41; 145-46; 151.

Thus, Shorewood’s expert’s testimony contradicts

what the Corps has said in its own post-2000 final

judgment letters — including letters the lower court

chose to ignore. Johnson discovered the discrepancy

between Shorewood’s expert’s testimony and the

Corps true position after the 2000 final judgment.

Johnson’s subsequent proceedings, as embodied in his

§ 1983 claims, pursued allegations of the lack of “full

and fair opportunity to be heard.” The Minnesota

Court of Appeals, by not reaching the federal claims

based on res judicata and collateral estoppel doctrine,

precluded adjudication of these additional federal

claims and related remedies.

5. Johnson Received no Compensation for a

Temporary Governmental Taking.

The Minnesota Court of Appeals denied Johnson

any compensation for a temporary physical taking

because under Minnesota state law compensation is

only available for permanent, not temporary, physical

takings:

If the government’s use of the subject prop-

erty was temporary, the landowner does not

have a valid claim for a taking, but may have

a claim in tort for nuisance or trespass.

App. 36.

After the 2000 judgment, in early June of 2000,

Shorewood moved construction equipment onto

Johnson’s property to construct a walking trail along

Vine Hill Road. In the preparation of the site, workers

marked the construction site and placed a silt fence

back in the woods on Johnson’s private property as

well as construction equipment. No prior notice of the

occupation had been provided to Johnson. When

Johnson discovered the occupation, he objected to

governmental authorities who eventually removed

the equipment and silt fencing — resulting in a gov-

ernmental occupation of his private property of about

one week.

Johnson sought state law and § 1983 claims for

the temporary taking damages under the Just Com-

pensation Clause. The state trial court denied his

demand, later affirmed by the Minnesota Court of

Appeals, on the ground that governmental takings of

private property are a matter of degree. Thus, the

state court found the governmental occupation of one

week to be a possible common law claim of trespass or

nuisance, but not a “taking” worthy of compensation

under the Just Compensation Clause.

The federal question, once again, remained un-

adjudicated.

ARGUMENTS FOR ALLOWANCE OF THE WRIT

Despite the Supreme Court and the U.S. Court of

Appeals for the Eighth Circuit precedents regarding

simultaneous litigation of state and federal taking

claims in state court, the lower court’s judgment

precludes federal remedies for alleged governmental

misconduct and state procedural and judgment

inadequacies. The ultimate result to date is unre-

strained state governmental power to perpetually

burden private property to the detriment of the

private property owner, with zero compensation for

significant property losses, and with no regard to

individual federal rights and remedies.

This case, while unique factually, presents nu-

merous legal issues left open by SanRemo Hotel,

which remain unresolved resulting in the nation-wide

unequal treatment of as-applied Just Compensation

Clause § 1983 claims.

Furthermore, Minnesota courts seek to limit

defined constitutional rights and Supreme Court

doctrine regarding the Fifth Amendment’s Just

Compensation Clause through the common law of

torts. The slippery slope of using state torts as

legally-satisfactory substitutes for federal constitu-

tional Just Compensation Clause claims — depending

on the “degree” of the physical taking — has led Minne-

sota to deprive citizens of constitutionally-guaranteed

just compensation for temporary physical takings.

I. SanRemo Hotel “conspicuously leaves open”

Numerous Legal Issues Relating to Wil-

liamson As-Applied Just Compensation

Clause § 1983 Claims Causing Unequal Le-

gal Treatment of These Claims Nationwide.

SanRemo Hotel’s opinion and concurrence re-

flects a concern of how state courts should adjudicate

Williamson as-applied Just Compensation Clause

§ 1983 Claims. The instant Petition raises the very

issues that SanRemo Hotel,. as the concurring

Justices put it, “conspicuously left open.” Jd. at 351

n.2. SanRemo Hotel apparently arose from this

Court’s vigilant concern of ensuring state courts, post-

SanRemo Hotel, provide equal protection under the

Just Compensation Clause and § 1983 as it relates to

state court adjudication of Williamson as-applied Just

Compensation Clause § 1983 claims. But, courts have

not applied the SanRemo Hotel principles consis-

tently. In fact, seemingly ignoring SanRemo Hotel

doctrine, state courts, based on res judicata and

collateral estoppel, are precluding adjudication of

§ 1983 claims challenging the adequacy of the prior

state court judgment and proceeding.

A. State Courts Must Consider and Adju-

dicate, After Denying Any Compensa-

tion Under State Law, Asserted Federal

Claims That Denial of Compensation

Under State Law Results in a Valid Wil-

liamson As-Applied Just Compensation

Clause § 1983 Claim.

This Court should re-formulate its SanRemo

Hotel mandate to ensure state courts consider and

adjudicate, after denying any compensation under

state law, asserted federal claims of whether that

denial of compensation results in a valid Williamson

as-applied Just Compensation Clause § 1983 claim.

The Minnesota Court of Appeals did not do so — as

feared by the Justices joining the concurring opinion

in SanRemo Hotel. Id. at 351 n. 2. The SanRemo

Hotel opinion clearly mandates that the state court

shall hear “simultaneously [Johnson’s}] request for

compensation under state law and [Johnson’s] claim

that, in the alternative, the denial of compensation

would violate the Fifth Amendment of the Federal

Constitution.” Jd. at 325. Yet, even so, the concurring

opinion in SanRemo Hotel was concerned about

problems that would arise from state court adjudica-

tion of Wiiliamson as-applied Just Compensation

Clause § 1983 Claim accruing upon entry of state

court condemnation final judgments. Jd. at 351 n. 2.

The concurring opinion cited two state court opin-

ions which had already applied before the SanRemo

Hotel decision the “state court litigation” requirement

on Williamson as-applied Just Compensation Clause

§ 1983 Claim brought in state court which, for all

intents and purposes, denies plaintiffs an opportunity

for their “Williamson as-applied Just Compensation

Clause § 1983 claims” to be heard in state court. ld.

at 351 n. 2. citing Breneric Assoc. v. City of Del Mar,

69 Cal.App.4th 166, 188-89, 81 Cal.Rptr.2d 324, 338-

39 (1998) (“A plaintiff’s action for damages under

section 1983 based on a regulatory taking is prema-

ture until the plaintiff has ... exhausted his state-

provided remedies for receiving just compensation for

the alleged taking”) and Melillo v. City of New Haven,

249 Conn. 138, 154, n. 28, 732 A.2d 133, 143, n. 28

(1999) (“We agree with the trial court that the

plaintiffs are not entitled to consideration of that

claim because of the existence of a legally sufficient

procedure, under article first, § 11, of the constitution

of Connecticut, to obtain just compensation for the

alleged taking of their property.”)

Prior to SanRemo Hotel, the U.S. Court of Ap-

peals for the Eighth Circuit showed care about how

the state court should handle Johnson’s Williamson

as-applied Just Compensation Clause § 1983 claim.

The Eighth Circuit stated that it was up to the state

court to determine the “precise reach” of the 2000

final judgment and to provide whatever post-

judgment remedies were available for Johnson’s

situation. Johnson, 360 F.3d at 819-20.

Contrary to the Eighth Circuit’s decision, the

Minnesota courts declined Johnson’s declaratory

judgment claims to define the “precise reach” of the

2000 final judgment and found that state !aw pro-

vided no post-judgment remedies for Johnson. App. 30.

The state court precluded review of the new

federal claims under res judicata and collateral

estoppel. The Eighth Circuit also stated that if John-

son was unsatisfied with the state court adjudication

of his Williamson as-applied Just Compensation

Clause § 1983 claim, he could petition the U.S. Su-

preme Court — which he has done here. Jd. at 819.

After SanRemo Hotel, the Texas Supreme Court

determined that a landowner’s Williamson as-applied

Just Compensation Clause § 1983 claim was ripe at

the time of enactment of the applicable ordinance.

Hallco Texas, Inc. v. McMullen County, 221 S.W.3d

50, 50 Tex. Sup. Ct. J. 314 (Tex. 2006). The Texas

Supreme Court declared, “Hallco’s taking claim was

ripe upon enactment because at that moment the

‘permissible uses of the property [were] known to a

reasonable degree of certainty.” Id. at 60, citing

Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001).

The Texas Supreme Court concluded that the claim

was barred by res judicata.

Similarly, the consequence of the Minnesota

Court of Appeals’ application of res judicata and

collateral estoppel from the challenged prior state

court judgment to Johnson’s Williamson as-applied

Just Compensation Clause § 1983 claim is that John-

son only had the right to bring his yet-to-be-discovered

claim during the initial condemnation proceeding.

If the res judicata and collateral estoppel ap-

proach of the state courts in California, Connecticut,

Texas and Minnesota are allowed to continue to exist,

it requires a property owner, in the initial condemna-

tion proceeding, to anticipate an unknown state court

adjudication denying compensation for governmental

takings under state law — compensation otherwise

required under the Fifth Amendment’s Just Compen-

sation Clause.

These four states require the assertion in the

initial litigation of a yet un-provable § 1983 allega-

tion, immediately challengeable as a frivolous claim,

subject to summary judgment practice and dismissal,

and possible Rule 11 sanctions imposed upon the

asserting attorney.

Nonetheless, the state cases from California,

Connecticut, Texas and now Minnesota have adopted

this rule — violating the guarantees of Williamson

and its successor SanRemo Hotel that a landowner

has an actionable Williamson as-applied Just Com-

pensation Clause § 1983 claim after exhausting state

judicial procedures when the state court awards

insufficient compensation in violation of the Just

Compensation Clause — as happened here to Johnson.

Basically, the state courts apply res judicata and

collateral estoppel based on the prior state court

judgment being challenged to ignore, not determine,

the Williamson as-applied Just Compensation Clause

§ 1983 claim.

If this Court allows this to stand, the state courts

become the proverbial fox watching the chicken coop.

After determining “no compensation under state law”

the state courts are then asked under SanRemo Hotel

to simultaneously re-consider their decisions under a

Williamson post-judgment, as-applied Just Compen-

sation Clause § 1983 analysis.

It can be done — as a fox can watch a chicken

coop. Thus, the concurring opinion in SanRemo Hotel

is correct, “The basic principle that state courts are

competent to enforce federal rights and to adjudicate

federal takings claims is sound.” /d. at 351.

However, no matter how sound, there needs to be

rules to ensure consistent, nationwide treatment of

the “chickens” — as the next two sections address.

B. Determining the Accrual of As-Applied

Just Compensation Clause § 1983 Claims

Will Reconcile Existing Conflicts Among,

and Unequal Treatment Being Provided

by, the Lower Courts.

Prevention of unequal treatment under the law

governing Just Compensation Clause § 1983 claims

begins with determining the time of the claim’s

accrual. For example, in the instant case, the Minne-

sota court did not determine when the claim accrued.

Without acknowledgment of the accrual of a William-

son as-applied Just Compensation Clause § 1983

claim, the lower court applied res judicata and collat-

eral estoppel to a claim that may have accrued upon

entry of the 2000 final judgment which the court in

turn, used in self-contradiction to apply res judicata

and collateral estoppel. If the as-applied Just Com-

pensation Clause § 1983 claim accrues upon entry of

the state court final judgment, then the Minnesota

court, as other jurisdictions, by applying the preclu-

sive doctrines deprives the landowner of an opportu-

nity to seek remedies guaranteed by the Just

Compensation Clause.

In Williamson, this Court said a property owner

“has not suffered a violation of the Just Compensa-

tion Clause until the owner has unsuccessfully at-

tempted to obtain just compensation through the

procedures provided by the State for obtaining such

compensation” and that “the property owner cannot

claim a violation of the Just Compensation Clause

until it has used the procedure and been denied just

compensation.” Jd. at 195, quoted in SanRemo Hotel,

545 U.S. at 325. Thus, under Williamson and SanRemo

Hotel, the Johnsons suffered a “violation of the

Just Compensation Clause” on January 5, 2000 upon

the entry of the state court condemnation final judg-

ment.

Similarly, the U.S. Court of Appeals for the

Seventh, Eighth, and Ninth Circuits recognize ac-

crual of the as-applied Just Compensation Clause

§ 1983 claim upon entry of the state court final judg-

ment denying constitutionally-required just compen-

sation. The Ninth Circuit recognized the necessity of

a final decision because otherwise the claim is prema-

ture and non-judiciable:

[I]n suits for wrongful deprivation of prop-

erty under 42 U.S.C. § 1983, the same con-

siderations that render a claim premature

prevent accrual of a claim for limitations

purposes, and the claim does not accrue until

the relevant governmental authorities have

made a final decision on the fate of the prop-

erty. [Plaintiff] was entitled, indeed required,

to await the final decision of the county

without commencement of the statute of

limitations.

Norco Construction v. King County, 801 F.2d 1143,

1146 (9th Cir. 1986). The Seventh Circuit agrees: “Not

having availed himself of the inverse condemnation

provided in Illinois, Biddison’s federal taking claim is

not ripe and has not yet accrued for the statute of

limitations. His federal claim will mpen, and the

statute of limitations will begin to run, if and when

Biddison is denied just compensation by the state

courts.” Biddison v. City of Chicago, 921 F.2d 724, 726

(7th Cir. 1991). The Eighth Circuit, citing Williamson,

similarly stated “|Tlakings claims are not ripe for

adjudication in federal court unless and until they

have been exhausted in state administrative and

judicial proceedings.” Johnson, 360 F.3d at 818.

Contrary to Williamson, SanRemo Hotel and the

decisions of the Seventh, Eighth, and Ninth Circuits,

the state courts of California, Connecticut, Texas, and

Minnesota hold that the Williamson as-applied Just

Compensation Clause § 1983 claim accrue at the time

of the original taking and not upon entry of the state

court condemnation final judgment.

The state courts’ abandonment of Supreme Court

precedent allows the preclusion of any review of

Williamson as-applied Just Compensation Clause

§ 1983 claims because res judicata and collateral

estoppel are being applied from the challenged state

court judgment. Thus, in at least four states, the

Williamson as-applied Just Compensation Clause

§ 1983 claim guaranteed in Williamson and re-

guaranteed in SanRemo Hotel does not exist.

This Court should consider adopting a uniform

rule that Williamson as-applied Just Compensation

Clause § 1983 claims accrue upon entry of the state

court condemnation final judgment that is claimed to

not provide the constitutionally-required just com-

pensation and/or challenged due to the inadequacy of

the state procedures leading thereto. In that way,

plaintiffs with Williamson as-applied Just Compensa-

tion Clause § 1983 claims will be treated equally

under federal law by the respective state courts.

C. A Determination of What Constitutes a “full

and fair opportunity to be heard” is Re-

quired Before the Application of Res Judi-

cata and Collateral Estoppel Principles to a

Williamson As-Applied Just Compensation

Clause § 1983 Claim Challenging a Prior

State Court’s Condemnation Judgment and

State Procedures.

Challenging a state court’s judgment or the

inadequacies of state procedures under a Williamson

as-applied Just Compensation Clause § 1983 claim

requires knowing the parameters of what constitutes

a “full and fair opportunity to be heard.” This is of

paramount importance if a state court can apply res

judicata and collateral estoppel to a Williamson as-

applied Just Compensation Clause § 1983 Claim

challenging a prior state court condemnation judg-

ment. Here, Minnesota courts, as well as courts in

California, Connecticut and Texas, preclude the

federal claims.’

’ Infra, Breneric Assoc. at 69 Cal.App.4th 166; Melillo at

249 Conn. 138; Hallco Texas, Inc. at 211 S.W.3d 50; Johnson at

2008 Minn. App., 2008 WL 434680 (Feb. 19, 2008).

First, for instance, if the claim accrues upon the

entry of the state court’s final judgment, principles of

res judicata and collateral estoppel do not apply at

all. Prior proceedings leading to challenges of the

state court’s final judgment do not and cannot provide

a “full and fair opportunity to be heard” on the post-

judgment Williamson as-applied Just Compensation

Clause § 1983 claim — as the Minnesota Court of

Appeals and the other state courts have held. In

essence, landowners claiming that a state court

judgment does not fully compensate them in violation

of the Just Compensation Clause acquire a new,

available post-judgment § 1983 claim upon entry of

final judgment. Res judicata and collateral estoppel,

by definition, do not apply because it is a new post-

judgment claim and a new post-judgment legal issue

accruing upon entry of final judgment.

Second, SanRemo Hotel and the Eighth Circuit

before SanRemo Hotel correctly indicated that the

landowner even with a Williamson post-judgment as-

applied Just Compensation Clause § 1983 claim

should proceed primarily for claims under state law

and in the alternative assert in state court the

Williamson as-applied Just Compensation Clause

§ 1983 claim. SanRemo Hotel, 545 U.S. at 325; John-

son, 360 F.3d at 819. Instead, however, the state

courts in California, Connecticut, Minnesota, and

Texas, respond to the alternative Williamson and/or

SanRemo Hotel by applying res judicata and collat-

eral estoppel to Williamson post-judgment as-applied

Just Compensation Clause § 1983 claims — frustrat-

ing the express mandate of SanRemo Hotel.

Third, a consistent judicial balance can and

should be achieved. The SanRemo Hotel decision to

establish a state-litigation requirement for William-

son as-applied Just Compensation Clause § 1983

claims necessitates a consistent, nationwide applica-

tion of the doctrine of res judicata and collateral

estoppel — particularly the element of a “full and fair

opportunity to be heard.” Here, Johnson has not had

an “opportunity to be heard” because of the state

court’s erroneous application of res judicata and

collateral estoppel. Simply, Johnson did not get his

day in court on his federal claims. For Johnson and

others like him in the future to be treated equally, the

Court needs to establish a standard for the state

courts of what a “full and fair opportunity to be heard”

means in the context of the Williamson post-judgment

as-applied Just Compensation Clause § 1983 claim.

II. The Court Should Resolve Whether Tem-

porary Physical Takings Claim Fall Under

Teleprompter’s Mandate That Every Tak-

ing be Justly Compensated.

The Just Compensation Clause is a balance. It

permits the government to occupy private property for

‘a public purpose often without a pre-deprivation

hearing. However, it requires the government to pay

just compensation for all takings. The Minnesota

Court of Appeals’ opinion states that the Just Compen-

sation Clause does not apply to temporary physical

takings — an important federal issue. App. 36-37. The

lower court distinguishes permanent physical takings

which require compensation under Teleprompter from

temporary physical takings which do not require

compensation.

The Minnesota Court of Appeals’ decision, by

identifying the governments’ occupation of private

property for intended public purpose but finding no

just compensation required, attempts to create an

exception from a series of U.S. Supreme Court deci-

sions protecting landowners’ property from uncom-

pensated governmental takings by mandating just

compensation for each and every physical appropria-

tion of property, no matter how small.

First, the U.S. Supreme Court in Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419,

426 (1982) held that the federal Fifth Amendment

requires all physical takings be compensated — no

matter how small. In Teleprompter Manhattan CATV

Corp., the adjudicated taking was in connection with

cable television company’s installation of “crossover”

and “noncrossover” cables on plaintiff’s five-story

apartment building. Jd. at 419.

Second, the U.S. Supreme Court in Lucas v.

South Carolina Coastal Council, 505 U.S. 1003

(1992), re-stated the same principle, “In general (at

least with regard to permanent invasions), no matter

how minute the intrusion, and no matter how

weighty the public purpose behind it, we have re-

quired compensation.... ” Jd. at 1015-16 (citations

omitted) (emphasis added).

Third, in Palazzolo v. Rhode Island, 533 U.S. 606

(2001), the U.S. Supreme Court confirmed, “The

clearest sort of taking occurs when the government

encroaches upon or occupies private land for its own

proposed use. Our cases establish that even a mini-

mal ‘permanent physical occupation of real property’

requires compensation under the Clause.” Jd. at 617

(emphasis added).

The Minnesota Court of Appeals’ decision also

conflicts with this Court’s decision in First English

Evangelical Lutheran Church of Glendale v. Los

Angeles County, Cal., 482 U.S. 304 (U.S. 1987) which

found a valid § 1983 claim where California did not

provide a compensatory remedy for temporary regula-

tory takings. If the Just Compensation Clause covers

temporary regulatory takings, then it must cover

temporary physical takings. Moreover, from the

landowner’s view, temporary physical takings are

even more invasive than temporary regulatory tak-

ings; thus, they are at least as worthy of constitution-

ally-required compensation.

CONCLUSION

For all the foregoing reasons for allowance of a

writ of certiorari, petitioners respectfully request the

Supreme Court to grant review of this matter.

Respectfully submitted,

ERICK G. KAARDAL

MOHRMAN & KAARDAL, P.A.

33 South Sixth Street

Suite 4100

Minneapolis, Minnesota 55402

(612) 341-1074

App. 1

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. $ 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2353

Ronald Richard Johnson,

Appellant,

Dee Johnson,

Plaintiff,

VS.

City of Shorewood,

Respondent,

City of Minnetonka,

Respondent,

Riley-Purgatory-Bluff Creek Watershed District,

Respondent,

Trivesco, et. al.,

Respondents,

Highland Villa Builders, Inc.,

Respondent.

Filed February 19, 2008

Affirmed °

Huspeni, Judge*

* Retired judge of the Minnesota Court of Appeals, serving

by appointment pursuant to Minn. Const. art. VI, § 10.

App. 2

Hennepin County District Court

File No. 27-CV-04-016195

Erick G. Kaardal, Mohrman & Kaardal, PA., 33

South Sixth Street, Suite 4100, Minneapolis, MN

55402 (for appellant)

George C. Hoff, Kimberly B. Kozar, Daphne A. Lund-

strom, Hoff, Barry & Kozar, P.A., 775, Prairie Center

Drive, Suite 160, Eden Prairie, MN 55344 (for re-

spondent City of Shorewood)

James G. Golembeck, Elisa M. Hatlevig, Jardine,

Logan & O’Brien, P.L.L.P., 8519 Eagle Point Boule-

vard, Suite 100, Lake Elmo, MN 55042 (for respon-

dent City of Minnetonka)

Louis A. Haik, Krebsbach & Haik, Ltd., 225 South

Sixth Street, Suite 4320, Minneapolis, MN 55402 (for

respondent Riley-Purgatory-Bluff Creek Watershed

District)

Jeremy S. Steiner, Steiner & Curtiss PA., 400 Wells

Fargo Bank Building, 1011 First Street South, Hop-

kins, MN 55343 (for respondents Trivesco, et al.); and

Christopher S. Hayhoe, Felhaber, Larson, Fenlon &

Vogt, P.A., 220 South Sixth Street, Suite 2200, Min-

neapolis, MN 55402 (for respondent Highland Proper-

ties, Inc.); and

Lisa M. Lamm, Foley & Mansfield, PLLP, 250 Mar-

quette Avenue, Suite 1200, Minneapolis, MN 55401

(for respondent Steiner & Koppelman, Inc.)

App. 3

Christopher S. Hayhoe, Felhaber, Larson, Fenlon &

Vogt, P.A., 220 South Sixth Street, Suite 2200, Min-

neapolis, MN 55402 (for respondent Highland Viila

Builders, Inc.)

Considered and decided by Hudson, Presiding Judge;

Kalitowski, Judge; and Huspeni, Judge.

UNPUBLISHED OPINION

HUSPENI, Judge

Appellant Ronald Johnson’ challenges the dis-

trict court’s grant of summary judgment in favor of all

named respondents. Appellant argues that the dis-

trict court erred by (1) denying his request for a

declaratory judgment and an additional takings

proceeding under Minn. Stat. § 117.045 (2006), based

on “(rjespondents’ future, continued and increased

flooding and other takings of [appellant’s] property”;

(2) dismissing appellant’s 42 U.S.C. § 1983 claims and

not granting his motion for partial summary judg-

ment; (3) dismissing appellant’s inverse-condemnation

claim and refusing io enter a declaratory judgment

' The brief filed by counsel for Ronald Johnson lists Ronald

and Dee Johnson as appellants. But the notice of appeal was

filed by Ronald Johnson, pro se, and it was not signed by Dee

Johnson. A family member who is not a lawyer cannot file a

notice of appeal on behalf of another family member. In re

Conservatorship of Riebel, 625 N.W.2d 480, 481 (Minn. 2001).

Because Dee Johnson did not perfect an appeal, Ronald Johnson

is the sole appellant.

App. 4

related to alleged 2000 “Vine Hill Road” takings; (4)

dismissing appellant’s state-law claims against

respondent Trivesco; and (5) denying appellant’s

postjudgment motion. Because the district court did

not err in any of its determinations, we affirm.

FACTS

Appellant and his wife purchased an undevel-

oped 20-acre parcel of land located in Hennepin

County, City of Shorewood, in 1981. The property is

bordered to the east by Vine Hill Road which abuts

respondent City of Minnetonka. In 1973, by city

ordinance, respondent City of Shorewood designated

approximately 60% of the subject property as wet-

lands. And a portion of the subject property was

designated wetlands on the 1980 National Wetlands

Inventory map prepared by the United States Fish

and Wildlife Service. Beginning in early 1993, appel-

lant contacted the United States Army Corps of

Engineers (Corps), disputing the existence of these

wetlands.

At the time of purchase, a drainage ditch crossed

the subject property and emptied into a creek to its

south. Shorewood’s Waterford subdivision was con-

structed to the south and west of the subject property

beginning in 1984. Waterford was developed by

respondent ‘Trivesco, a Minnesota general partner-

sito. Trivesco is in partnership with respondents

Robe:t H. Mason, Inc., Highland Properties, Inc., and

Steiner & Koppelman, Inc. In 1984, in connection

App. 5

with the planned Waterford subdivision, Shorewood

constructed a road berm, culvert, and a pond-control

structure to the south of the subject property. Re-

spondent Riley-Purgatory-Bluff Creek Watershed

District was involved in designing the pond-control

structure and designated a 100-year storm-event

flood plain at an elevation of 917.1 feet above sea

level and prohibited construction at elevations lower

than 919.1 feet. The pond-control structure raised the

bottom of the drainage ditch above its original eleva-

tion and created a pond near the southern boundary

of the subject property. Because the drainage ditch

was raised, subsequent rains began flooding the

subject property.

“Outlot C” is “a narrow, irregularly shaped out-

lot” between the southern boundary of the subject

property aad a pubi:c street called Waterford Circle.

Trivesco purchased Outlot C on a contract for deed

recorded on October 2, 1984. On June 3, 1985,

Trivesco and appellant signed an “acknowledgment

letter,” which granted appellant the right to purchase

Outlot C “for $60,000 representing the utility and

street assessments.” This June 3, 1985 agreement is

referred to by appellant as a “contract for deed.” On

August 12, 1985, as part of the governmental ap-

proval process for the Waterford subdivis on, Shore-

wooc approved ‘Trivescos amended development

agreement. As part of the amended development

agreement with Shorewood, Trivesco agreed to sell

Outlot C to appellant. On September 19, 1985, Trivesco

recorded a “Declaration of Covenants, Conditions,

App. 6

Restrictions and Reservations for Waterford” with the

Hennepin County Registrar which specifically en-

cumbered Outlot C. The Waterford declaration estab-

lished that an “archivectural control committee” must

approve plans for all construction within the Water-

ford subdivision. Twenty-two years after the alieged

“contract for deed,” Trivesco remains the owner of

Outlot C. And the Waterford declaration expired by

its terms on September 19, 2005.

Beginning in 1992, the Ashcroft subdivision was

constructed by Chimo Development Corp. to the east

of Vine Hill Road. Highland Properties. Inc. served as

a sales agent for Chimo. Respondent Highland Villa

Builders, Inc. managed the construction of Ashcroft.

In April 2000, the Shorewood City Council ap-

proved construction of a bike path/walking trail along

the west side of Vine Hill Road. In early June 2000,

Shorewood moved construction equipment onto the

subject property for the purpose of constructing the

trail and placed a silt fence on the subject property.

The equipment remained on appellant’s property for

less than one day. The silt fence was removed one

week later, on June 13, 2000. Shorewood has not

authorized public use of the trail. A private company,

not joined in this action, applied for a permit from

Shorewood to install fiber optic cable along the west

side of Vine Hill Road. Although Shorewood denied

the company’s permit application, the company did

install cable to the west of the roadway.

App. 7

By way of background, this case involves the fifth

lawsuit filed by appellant regarding alleged takings

of his property. sppellant’s first lawsuit, “the takings

case,” was filed in Hennepin County District Court in

1991. Appellant successfully alleged that Shorewood

had taken his property without compensation and

obtained a writ of mandamus compelling Shorewood

to commence inverse-condemnation proceedings.

_Appellant’s second action, filed in Hennepin County

District Court in 1996 against the City of Minne-

tonka, alleged that the Ashcroft subdivision had been

diverting storm water run-off onto his property as

early as 1992. The action was dismissed without

prejudice for failure to join necessary parties, and

appellant did not appeal the dismissal. Appellant

filed a 24-count complaint in United States District

Court in 2000 as his third iawsuit, alleging numerous

constitutional and state-law violations. This suit was

eventually dismissed by the Eighth Circuit. Appel-

lant’s fourth lawsuit was filed in the Court of Federal

Claims in 2001, alleging (1) both physical and regula-

tory takings arising out of the 1984 flooding, (2) tort

claims against the government, aid (3) that the

United States Fish and Wildlife Service, by designat-

ing part of the subject property a wetland on its 1980

inventory map, had breached implied and/or express

contracts with appellant. All claims were dismissed —

uncha!lenged by appellant — based on the statute of

limitations, lack of jurisdiction, and Fed.R.Civ.P.

12(b)\(6), respectively. In 2004, for his fifth lawsuit,

appellant refiled his 24-count 2000 federal complaint

in Hennepin County District Court. In this current

App. 8

appeal, appellant challenges the district court’s

determination that all named respondents are enti-

tled to summary judgment.

I. The Takings Case.

In his 1991 suit against Shorewood, appellant

claimed that his land had been taken without just

compensation, and alleged specifically that, despite

the pond-control structure, the pond frequently

flooded his property with overflowing storm-sewer

water. Appellant also claimed that actions taken by

Shorewood related to a plat-approval application,

which prevented his development of the subject

property, amounted to a taking.

The district court determined that the flood-plain

restrictions were not a regulatory taking but that in

creating the pond and control structure Shorewood

had physically taken appellant’s property up to 914

feet since December 31, 1984, because the water

would rise to that elevation during “major storm

events.” The district court agreed with appellant and

issued a writ of mandamus compelling Shorewood to

commence condemnation proceedings for the purpose of

acquiring a drainage easement on appellant’s property

up to 914 feet above sea level. The district court also

ordered Shorewood to pay appellant’s attorney fees and

costs related to the action. The district court concluded

that the flooding constituted a taking because appel-

lant’s property “is expected to flood to this level

with sufficient frequency to constitute a permanent

App. 9

physical invasion.” Although appellant argued that

the taking occurred to 919.1 feet, the level below

which development is restricted based on the 100-

year flood event, the district court rejected that

argument because “it is difficult to conceive of any

case in which short-term flooding once every 100

years or so would be considered a permanent physical

invasion.”

Shorewood challenged the district court’s award

of attorney fees and its determination that there had

been a taking. The district court’s decision was af-

firmed by this court. Johnson v. City of Shorewood,

No. CX-93-2452 (Minn. App. May 11, 1994), review

denied (Minn. July 15, 1994). The condemnation

petition was filed by Shorewood with the district

court, and commissioners were appointed to deter-

mine appellants damages. The commissioners

awarded appellant $2,000 for the taking (the ease-

ment), $3,000 repair costs, and $500 as reasonable

appraisal fees. Appellant then challenged the amount

of the commissioners’ award and the scope of the

taking. On October 25, 1995, the district court found

that appellant’s objections regarding the scope of the

taking were barred as untimely because the scope

was determined by the June 1993 court order. But the

district court did allow a jury to determine the value

of the taking.

Three letters from the Corps dated March 2 and

17, 1993, and February 7, 1994, were admitted into

evidence at the takings trial. During the trial, Shore-

wood’s expert testified that, in his opinion, the Corps

App. 10

had determined that the property contained a wet-

land. The expert based his testimony on the fact that

appellant had applied for a permit from the Corps to

excavate a ditch on the subject property. And if the

Corps had determined that it did not have jurisdic-

tion over that property, it would have issued a

no-jurisdiction order, not an exemption or permit.

The Corps letter of March 2, 1993, explained how

appellant’s proposed agricultural ditch maintenance

work might qualify for an exemption. By letter dated

March 17, 1993, the Corps noted that, based on the

information it had available, including the National

Wetland Inventory maps, the property did contain

wetlands. The February 7, 1994 Corps letter reiter-

ated that “the effected area appears to have been a

wetland before the dam and road construction in the

mid 1980s and it appears to remain a wetland today.”

Appellant’s expert testified to the contrary, stating

that the subject property was pre-taking dry land and

that “the only reason any portion of [appellant’s]

property appears as a designated wetland is a resuit

of the [1973] City ordinance|.]” Eventually appellant

was issued an exemption by the Corps.

The district court did not refer to the Corps’

letters or the allegedly erroneous 1980 National

Wetlands Inventory map in its decisions. Rather, the

district court’s analysis focused on the 1973 city

ordinance, holding that because the wetland designa-

tion occurred prior to appellant’s purchase of the

subject property, appellant had no basis for arguing

App. 11

that any of the property rights he purchased were

taken.

In October, 1996, the jury found that, although

there was a difference of “$0” between the value of

the property before the taking and its value after the

taking, appellant was entitled to $2,000 for “the

easement actually taken” and $63,000 for “the rea-

sonable cost of clean-up” related to the flooding/

taking. The district court vacated the $2,000 award

because it concluded that it was inconsistent with the

jury’s finding that there was no diminution in the

property’s fair-market value due to the taking.

Shorewood moved for judgment notwithstanding

the verdict and for a new trial, arguing that appellant

should not be entitled to the $63,000 for “clean-up”

costs’ because, without a reduction in the property’s

value, there had been no taking. Notably, appellant

did not challenge the amount of the award or the

jury’s conclusion that the fair-market value of the

property was restored to its pre-taking value by the

clean-up award.” Both of Shorewood’s motions were

* The clean-up costs appear to be based on clearing dead

trees from the drainage ditch. Appellant testified that the

flooding caused by Shorewood killed a number of mature trees

and that his time cleaning up the property (3,400 hours) should

be compensated at an appropriate hourly rate ($20).

* Appellant did challenge that the interest was calculated at

the statutory rate, arguing that the interest should have been

awarded based on the average interest rate for fixed-rate, 30-

year, first mortgages compounded annually. The district court

rejected his argument as part of the final judgment January 5,

(Continued on following page)

App. 12

denied. The district court concluded that “liJt was

proper for the jury to consider the cost of clean-up in

that a potential buyer would clearly take into consid-

eration the cost of cleaning up the property and

arriving at its market value.” Shorewood appealed

the district court’s denial of its motions. This court

affirmed the district court in April 1998. City of

Shorewood v. Johnson, No. C5-97-1525, 1998 WL

188561 (Minn. App. Apr. 21, 1998). This court ruled

that it was proper for the jury to award “clean-up”

costs despite its finding that the property’s value was

not diminished by the taking because

[tlhe jury may have found there was no

diminution in market value from the taking

only because [appellant] prevented a diminu-

tion in market value by restoring [his] prop-

erty to its pre-flood condition, incurring

significant costs in doing so. If [appellant]

had not cleaned up the damage, the prop-

erty’s fair market value would have been di-

minished because potential buyers would

have subtracted clean-up expenses from the

price they would pay for the property.

Id. at *2. On May 18, 1998, Shorewood paid appellant

$116,480.16 in satisfaction of the $63,000 award, plus

2000, finding that the statutory interest rate provides reason-

able and just compensation and that essentially appellant

received a “windfall” because Shorewood agreed to pay interest

on the entire amount from the date of the taking as opposed to

when the costs were actually incurred.

App. 13

interest accrued from January 1, 1985, to the date of

payment.

A final judgment in the takings case was entered

January 5, 2000, granting appellant’s motion for

costs. On April 5, 2000, Shorewood paid appellant the

$67 335.95 that he was awarded in costs.

Il. The Federal Case/The Current Case.

On June 22, 2000, appellant filed a 24-count

complaint with the United States District Court

alleging constitutional violations, naming all of the

respondents involved ‘n the current case and the

United States and the Corps as defendants. Gener-

ally, the federal district court dismissed on July 11,

2001, “[aJjll claims arising from the prior state court

litigation” against Shorewood and Minnetonka be-

cause they were barred by collateral estoppel and

dismissed the remaining claims because they “either

are unripe or are supplemental state law claims over

which the Court declines to exercise jurisdiction.”

Following a challenge by appellant, the federal courts

did not award him any of the relief he requested.

Johnson v. City of Shorewood, 360 F.3d 810, 820 (8th

Cir. 2004). The United States Supreme Court denied

further review. Johnson v. City of Shorewood, Minn.,

543 U.S. 810, 125 S. Ct. 43 (2004).

Within a month of the Supreme Court’s denial of

certiorari, appellant filed the same 24-count com-

plaint with Hennepin County District Court. The sole

difference between the 2004 state complaint and the

App. 14

2000 federal complaint is that the former omitted the

United States and the Corps as named defendants:

i. The attached federal complaint (pre-

viously served on [respondents’] counsel) is

referenced and incorporated as though en-

tirely rewritten herein with the state caption

above as to all [appellant's] state and com-

mon law claims, expressed or implied, in-

cluding [appellant’s) 42 U.S.C. §[§] 1983,

1985 claims including U.S. Const. Just Com-

pensation.

it. On March 5, 2004 the U.S. Eighth

Circuit Court of Appeals on jurisdictional

ground referred [appellant’s] federal claims

to the federal claims court and [appellant’s]

state and common law claims to this state

court including the U.S.C. §§ 1983, 1985

state takings claims. On October 4, 2004 the

U.S. Supreme Court denied review.

iit. The remainder of the complaint fol-

lows. The claims are tolled under 28 U.S.C.

§ 1367(d).

As characterized by the Eighth Circuit, the 24-

count complaint’s “primary allegation is that the

{respondents} have, individually and in concert,

effected various regulatory and physical takings of

[appellant’s] property and conspired to prevent [him]

from receiving just compensation.” Johnson, 360 F.3d

at 814. More specifically, the counts of the complaint

and their disposition by the Eighth Circuit and

Hennepin County District Court can be divided into

four categories: (1) claims brought under 42 U.S.C.

App. 15

§§ 1983 and 1985; (2) two declaratory-judgment

requests; (3) state-law claims; and (4) claims not

appealed here.

A. 42 U.S.C. §§ 1983 and 1985 Claims.

Eight counts of appellant’s complaint were

brought under 42 U.S.C. §§ 1983 and 1985, alleging

physical and regulatory takings of the subject prop-

erty and that his due process and equal protection

rights had been violated.

1. Eighth Circuit.

The Eighth Circuit held that appellant did not

produce evidence of a conspiracy sufficient to survive

summary judgment under 42 U.S.C. § 1985. Id. at

817-18. Although appellant created a “voluminous

record, including an affidavit by the former mayor of

Shorewood,” appellant failed to point to specific facts

tending to show an illicit agreement and merely

speculated to its existence. Jd. (footnote omitted).

The United States District Court had concluded

that the only potential violation of 42 U.S.C. § 1983

was the alleged taking of appellant’s property without

just compensation. Jd. at 818. Upon review, the

Eighth Circuit determined that the United States

District Court lacked jurisdiction to make that de-

termination under the Rooker-Feldman doctrine

because the “alleged constitutional injury stems from

claims adjudicated in the prior state court judgment

... [appellant is] asking the federal court for the

App. 16

same remedy requested in the state court action: just

compensation. Moreover, the claims may be unripe

... because [appellant] failed to appeal the sufficiency

of the state court jury award” in the takings case. Jd.

at 818-19 (quotation and citations omitted).

As noted by the Eighth Circuit, since the first

state proceeding, appellant has been collaterally

estopped from challenging the wetland designation

because it was already adjudicated then upon a

motion for summary judgment. /d. at 815 n. 6.

Finally, the Eighth Circuit noted in dicta:

Shorewood suggests that not only does col-

lateral estoppel bar consideration of claims

actually litigated, res judicata bars claims

that could have been litigated during the

state court proceedings. Perhaps so, but in

light of our holding that Rooker-Feldman

deprived the district court of subject matter

jurisdiction, we need not address this argu-

ment. Because Rooker-Feldman and Wil-

liamson County preclude federal review of

[appellant’s] various takings claims, the de-

termination regarding the precise reach of

the state court judgment is a matter for the

state courts to decide.

Id. at 820.

2. Hennepin County District Court.

The district court held that “all claims arising out

of the 1984 flooding are .. . barred by the doctrines of

App. 17

res judicata, collateral estoppel and the applicakle

statute of limitations.” They “have been fully and

fairly litigated to a final resolution as evidenced by

state and federal actions.” The district court found

that “[flacts asserted regarding alleged taking in

June 2000 are insufficient to support a claim” be-

cause the silt fence was immediately removed upon

appellant’s request, the walking trail “was never

constructed” and, further, “[a]Jny preparatory actions

taken by Shorewood were upon a public dedication.”

And because “it is undisputed between the parties

that Shorewood is not responsible for the installation

of the fiber optic cable, nor did Shorewood issue a

permit for it to be placed on [appellant’s] property,”

Shorewood could not be held responsible for that

invasion.

B. Declaratory Judgment Claims.

Two counts of appellant’s complaint sought

declaratory judgments.

1. Eighth Circuit.

For the remaining federal claims, the Eighth

Circuit concluded that, although not barred by

Rooker-Feldman,

all of the claims which [appellant] failed to

present in the state litigation, as well as all

of the claims which arose after the state

court fixed the takings issues to be decided,

are unripe for adjudication in federal court

App. 18

because [appellant has] failed te pursue state

postdeprivation remedies for those alleged

takings.

Johnson, 360 F.3d at 819 (citing Kottschade v. City of

Rochester, 319 F.3d 1038, 1042 (8th Cir. 2003), cert.

denied, 540 U.S. 825 (2003)).

2. Hennepin County bistrict Court.

The district court, in an exercise of its discretion

citing Minn. Stat. § 555.06 (2006), denied appellant’s

requests for declaratory judgments.

C. State-Law Claims.

Twelve counts of appellant’s complaint involved

state-law claims related to breach of contract, prom-

issory estoppel, fraud, misrepresentation, negligence,

tortious conduct, and slander of title. Appellant

sought specific performance and requested that

another inverse-condemnation proceeding be com-

pelled.

1. Eighth Circuit.

The Eighth Circuit held that the district court

did not abuse its discretion by declining to exercise

supplemental jurisdiction over the state-law claims

and dismissed them without prejudice. Johnson, 360

F.3d at 819. Regarding appellant’s claims of misrep-

resentation and fraud, the Eighth Circuit noted that

federal review was barred under Rooker-Feldman and

App. 19

noted that © appellant’s] remedy, if any is to return to

state court and utilize its procedures for remedying

fraud.” Id. at 819 (emphasis added).

2. Hennepin County District Court.

The district court dismissed the counts related to

breach of contract, holding that appellant has “failed

to establish that there were any implied or express

contracts between the parties,” and without this, a

breach cannot be shown. From that conclusion, the

district court was compelled to deny appellant’s

requests for specific performance of the alleged con-

tracts. The district court dismissed the negligence

and tort claims because they “either stem from the

1984 flooding and are barred by collateral estoppel or

are based on unsupported claims of takings in 2000

.. or are barred by the applicable statute of limita-

tions.” The district court found that the fraud and

misrepresentation claims failed because appellant

“offered no evidence that would show ihe existence of

a conspiracy ... [in the federal court action and]

failed to offer any additional evidence, . . . but instead

made the decision to rely on allegations in the previ-

ous Complaint.” The district court found that the

claim for slander of title was either barred by coilat-

eral estoppel or the statute of limitations because it

arises out of the 1984 flooding of the subject property.

App. 20

D. Other Claims.

The remaining two counts of appellant’s com-

plaint, an alleged Freedom of Information Act viola-

tion and a request to preserve the right to amend

pleadings after discovery, were not challenged on

appeal.

Thus, this appeal is limited to challenging the

summary-judgment determination in favor of respon-

dents on the 22 remaining claims.

DECISION

The scope of review applicable to a grant of

summary judgment is whether there are any genuine

issues of material fact and whether the district court

erred in its application of the law. Wallin v. Letour-

neau, 534 N.W.2d 712, 715 (Minn. 1995). If no mate-

rial facts are at issue on appeal, the reviewing court

need only determine whether the district court erred

in applying the law regarding the accrual of the cause

of action and the running of the statute of limitations.

Peterson v. Johnson, 720 N.W.2d 833, 837 (Minn. App.

2006) (quoting Brock v. Park Nicollet Health Serus.,

660 N.W.2d 439, 441 (Minn. App. 2003), review denied

(Minn. July 15, 2003)). Although an appellate court

reviews the evidence in a light most favorable to the

nonmoving party, and is prohibited from weighing the

evidence, it is not enough for the nonmoving party to

show some metaphysical doubt. DLH, Inc. v. Russ,

566 N.W.2d 60, 70-71 (Minn. 1997) (holding that a

court is not required to ignore its conclusion that a

piece of evidence has no probative value).

App. 21

A challenge to the district courts application of a

statute of limitations is a question of law to be re-

viewed de novo. Antone v. Mirviss, 720 N.W.2d 331,

334 (Minn. 2006). And whether a taking has occurred

is question of law, also to be reviewed de novo. Fitger

Brewing Co. v. State, 416 N.W.2d 200, 205 (Minn.

App. 1987), review denied (Minn. Feb. 23, 1988).

The applicability of collateral estoppel is subject

to de novo review. Falgren v. State, Bd. of Teaching,

545 N.W.2d 901, 905 (Minn. 1996). Applying collateral

estoppel is appropriate if all of the following are

satisfied:

1) the issue must be identical to one in a

prior adjudication; 2) there was a final judg-

ment on the merits; 3) the estopped party

was a party or was in privity with a party to

the prior adjudication; and 4) the estopped

party was given a full and fair opportunity to

be heard on the adjudicated issue.

Care Inst., Inc.-Roseville v. County of Ramsey, 612

N.W.2d 443, 448 (Minn. 2000).

Broader than collateral estoppel, res judicata

precludes relitigating entire claims rather than

specific issues. Klinefelter v. Crum & Forster Ins. Co.,

675 N.W.2d 330, 336 (Minn. App. 2004) (citing Hauser

v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978)). From

that principle, res judicata applies equally to claims

that actually were litigated and claims that could

have been litigated in the earlier action. Brown-

Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209,

App. 22

220 (Minn. 2007). Res judicata precludes parties from

raising subsequent claims in a later action when:

(1) the earlier claim involved the same set of

factual circumstances; (2) the earlier claim

involved the same parties or their privities;

(3) there was a fina] judgment on the merits;

[and] (4) the estopped party had a full and

fair opportunity to litigate the matter.

Id. (quoting Hauschildt v. Beckingham, 686 N.W.2d

829, 840 (Minn. 2004)). The applicability of res judi-

cata is a question of law reviewed de novo. /d.

Appellant argues first that the district court

erred by not granting him a proceeding under Minn.

Stat. § 117.045 (2006), based on respondents’ “future,

continued, and increased flooding and other takings”

of the subject property and a declaratory judgment.

Appellant argues further that this section “statutorily

preempts any res judicata or collateral estoppel effect

from Shorewood’s prior condemnation proceeding

because the governmental ... takings were ‘omitted’

from Shorewood’s prior condemnation proceeding.”

Moreover, appellant argues that even the litigated

taking was essentially “omitted” because appellant

only received damages for his “clean-up costs” and he

argues he received “ZERO” compensation for the

taking itself. We disagree with appellant’s interpreta-

tion of the statute. Moreover, appellant’s claims based

on flooding are barred by the doctrines of res judicata

App. 23

and collateral estoppel, and, in some cases, a statute

of limitations. And although the district court incor-

rectly determined that, when the underlying cause of

action is barred by a statute of limitations, a declara-

tory judgment is per se inappropriate, a denial here

was nonetheless within its discretion.

Upon successfully bringing an action

compelling an acquiring authority to initiate

eminent domain proceedings relating to a per-

son’s real property which was omitted from

any current or completed eminent domain

proceeding, such person shall be entitled to

petition the court for reimbursement for rea-

sonable costs and expenses, including rea-

sonable attorney, appraisal and engineering

fees, actually incurred in bringing such ac-

tion.

Minn. Stat. § 117.045 (emphasis added).

This statute does not allow a claimant to recover

damages for omitted takings. And it does not indicate

that if a claimant does not receive compensation for a

taking that it is “omitted.” Rather, it provides that a

claimant may later recover costs associated with the

prior action. Because appellant’s claimed damages

are not related to costs actually incurred in the prior

eminent-domain action, the district court did not err

in denying a request for a proceeding pursuant to

Minn. Stat. § 117.045. Appellant misinterpreted the

breadth of this statute, and we shali apply the doc-

trines of res judicata and collateral estoppel.

App. 24

A. Res Judicata and Collateral Estoppel.

Appellant’s central argument appears to be that

the jury-awarded damages in 1996 did not justly

compensate him for the flooding takings which began

in 1984. During the original takings proceedings,

appellant was prevented from relitigating the scope of

the taking. And res judicata and collateral estoppel

preclude him from doing so here.”

Over a nine-year period, appellant’s inverse-

condemnation claims against Shorewood, related to

the flooding takings, were fully and fairly litigated,

resulting in his just compensation. This action in-

volves the same set of facts as the earlier case that

had a final judgment on the merits on January 5,

2000, after several reviews by this court. And appel-

lant, the estopped party, was the party involved in

the earlier action. Appellant argues that, because of

the “misrepresentation” that the subject property

included a pre-taking wetland, he did not have a full

‘ Claims related to the Waterford subdivision/1984 flooding

are also barred by the applicable statute of limitations. Appel-

lant argues that his claims cannot be barred by a statute of

limitations because “[a]pplication of any statute of limitations in

this context would itself be a taking.” Appellant cites no author-

ity for this argument, and therefore it is waived. State v. Modern

Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). More-

over, a 15-year limitations period applies to _ inverse-

condemnation actions. See Minn. Stat. § 541.02 (2006); see also

Vern Reynolds Constr., Inc. u. City of Champlin, 539 N.W.2d 614,

618 n.2 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995).

Thus, claims related to the 1984 taking are outside of the

statutory period.

App. 25

and fair opportunity to litigate this matter. We dis-

agree.

A 1993 survey of the subject property was stipu-

lated to by the parties at a summary-judgment hear-

ing held June 22, 1993. The Eighth Circuit, relying on

the previous state court actions, concluded that

“because the issue concerning the pre-ownership

wetland designation relating to the Property ...

[was] already adjudicated [in the first state proceed-

ing] ... upon a motion for summary judgment, the

doctrine of collateral estoppel clearly precludes the

introduction of evidence [to the] ... contrary.” John-

son v. City of Shorewood, 360 F.3d 810, 815 n.6 (8th

Cir. 2004) (quoting City of Shorewood v. Johnson, No.

CD-2344, at 5 (Minn. Dist. Ct., Oct. 10, 1996, Memo-

randum and Order)).

But appellant argues that Shorewood fraudu-

lently asserted during the takings trial that the

subject property contained wetlands prior to the

taking “even in contradiction of the prior District

Court opinion that the damming caused the flooding

on [appellant’s] property” and therefore this court

should refuse to invoke the preclusive doctrines.

Appellant’s argument appears to be based on his

theory that, because the 1991 taking was based on

flooding of the subject property, the property could

not logically contain a wetland. We cannot conclude

that Shorewood committed fraud.

[A]bstract statements of law or pure legal

opinions are not actionable [as fraudulent

App. 26

representations]; however, a mixed state-

ment of law and fact may be actionable “if it

amounts to an implied assertion that facts

exist that justify the conclusion of law which

is expressed” and the other party would or-

dinarily have no knowledge of the facts.

Hoyt Props., Inc. v. Prod. Res. Group L.L.C., 736

N.W.2d 313, 318 (Minn. 2007) (quotation omitted).

Contrary to the fraud allegation, the record shows

that the jury was presented with a battle of experts

at trial. Shorewood’s expert testified that he believed

that because the Corps’ letters indicated that they

had jurisdiction over appellant’s property that it did

indeed contain wetlands. And this is not a matter

where appellant possessed no knowledge of the facts.

Appellant presented his own expert who testified

that, based on his evaluation of the property, it did

not contain wetlands.

Because it remains unsettled whether the land

actually contains wetlands, appellant’s argument that

Shorewood intentionally misled the court in the

takings trial must fail. In the ensuing years, appel-

lant has repeatedly asked the Corps to confirm that

the subject property does not contain wetlands and

the Corps has repeatedly advised appellant that it

would need to visit the subject property to make that

determination. Appellant has refused to grant the

Corps permission to inspect the subject property.

Notably, the Corps informed appellant July 8, 2002:

The information that you have provided

indicates substantial portions of your property

App. 27

have all three of the criteria (hydrology, soils,

and vegetation) necessary to be considered a

wetland. Your correspondence and other

documents indicate that portions of your

property experience frequent inundation

(severa] times a year). Your consultant indi-

cates that portions of the site have organic

soils and are clearly dominated by hydro-

phytic vegetation.

The new ditch and the apparent dis-

charge sites for the dredged material are in

areas mapped as wetland on the National

Wetland Inventory and the Metro Wetland

Inventory maps. The Hennepin County Soil

Survey identifies this part of the site as

“Marsh.” As stated in our previous corre-

spondence, these sources are only indicators

that wetlands may exist. An on-site visit is

necessary to determine conclusively whether

wetlands are on your property and, if so,

their extent. While we have offered to make

an on-site determination/delineation of any

wetlands or other waters that might be on

your property, you have not yet given us

permission to do so.

Because as recently as 2002 the Corps told appellant

that the information in its possession indicated that

his property may have contained wetlands before he

purchased it, appellant’s argument that Shorewood

committed a fraud on the court during the original

takings trial cannot prevail.

Further, it is not clear that the jury’s determination

that, after appellant was compensated for clean-up

App. 28

costs, there was no diminution in the property’s

value, was even based on the contested wetland

designation. And, moreover, if appellant did not

consider himself to be justly compensated by the

jury’s award, he should have appealed it directly.

Having notably failed to do so, he is precluded from

relitigating his claim here.”

And, because res judicata precludes later bring-

ing claims that could have been brought in the earlier

action, it is proper that the claims against Minne-

tonka based on alleged Ashcroft-subdivision-related

flooding are also barred. Appellant admitted that as

early as 1992, he suspected that the Ashcroft subdivi-

sion was causing additional flooding of his property.

Although at this point the takings litigation had

commenced, appellant should have joined Minne-

tonka as a necessary party to the litigation because

° We recognize that an argument can be made that the

takings award was insufficient. Because the jury found that

there was no diminution in the value of appellant’s property

because of the clean-up work performed by appellant, it does

seem logical that as the flooding continued more clean-up would

be required through the years. But the very reason that this

flooding was considered a taking was because it was expected to

be of a sufficiently regular nature. Had it been more sporadic

appellant’s potential claim would have been in tort for nuisance

or trespass. See Vern Reynolds, 539 N.W.2d at 619. Appellant

had the opportunity to fully litigate this taking over nine years

and is precluded from making these arguments here. Notably,

respondent Shorewood was the party who challenged the

damages award on appeal; based on his inaction, appellant

presumably was satisfied.

App. 29

its omission may have left Shorewood to “incur| |

double, multiple, or otherwise inconsistent obliga-

tions.” Minn. R. Civ. P. 19.01.

Because the remaining respondents are non-

governmental, their actions cannot constitute a

taking in the constitutional sense.

And, finally, we note that although appellant

argues that he is merely following the Eighth Cir-

cuit’s directive by returning to state court, the federal

appellate court did not suggest that appellant was

actually entitled to relief. Johnson, 360 F.3d at 819

(stating that appellant’s remedy “if any” was to

return to the state courts). Rather, the Eighth Circuit

explained that, under the Rooker-Feldman doctrine,

federal appellate review was precluded. Id. After

reviewing the claims in the proper forum — state

court — we conclude that the district court correctly

dismissed appellant’s claims.

B. Declaratory Judgment.

Two counts of appellant’s 24-count complaint

requested a declaratory judgment. The count request-

ing a declaration of appellant’s remaining property

rights to the subject property, in addition to damages

and an injunction preventing respondents from

further claimed viclations of appellant’s property

rights, is relevant here.

Under the Uniform Declaratory Judgments Act, a

party may seek a declaration of his rights to remove

App. 30

uncertainty. Minn. Stat. § 555.05 (2006). Under this

act, courts “have power to declare rights, status, and

other legal relations whether or not further relief is or

could be claimed.” Minn. Stat. § 555.01 (2006). But

“(t]he court may refuse to render or enter a declara-

tory judgment or decree where such judgment or

decree, if rendered or entered, would not terminate

the uncertainty or controversy giving rise to the

proceeding.” Minn. Stat. § 555.06 (2006). And under

the concurrent-remedy rule, “equity will withhold its

relief in such a case where the applicable statute of

limitations would bar the concurrent legal remedy.”

Cope v. Anderson, 331 U.S. 461, 464, 67 S. Ct. 1340,

1341 (1947).

Here, because the concurrent legal remedies are

barred, the district court correctly denied appellant’s

requests for equitable relief. No uncertainty remains

because appellant has been clearly told that he can-

not relitigate his takings claims. He is left with the

previous judgment. It was within the district court’s

discretion to deny appellant’s request for a declara-

tory judgment.

IT.

Appellant also argues that the district court

erred by denying his motion for partial summary

judgment and by granting respondent’s motion for

summary judgment on appellant’s 42 U.S.C. § 1983

App. 31

claims against Shorewood.” Again, appellant argues

that he never received the just compensation for the

takings related to the 1984 flooding because his “1996

zero compensation award ... was based on Shore-

wood’s fraudulent misrepresentation that the Corps

had determined a pre-taking Clean Water Act wet-

land on [appellant’s] property.” Again, we disagree.

Because appellant relies on mere speculation to

suggest that the wetland designation was fraudulent,

and we have already disposed of that argument,

summary judgment is not precluded. See DLH, Inc.,

566 N.W.2d at 70-71.

A. Res Judicata and Collateral Estoppel.

Although appellant asserts that he received

“ZERO” in the 1991 takings case and that this vio-

lates the substantive due process he is owed under

the United States and Minnesota Constitutions,

appellant’s assertions are both inaccurate and barred

by the doctrines of res judicata and collateral estop-

pel. Further, because takings-related compensation is

intended only to make the property owner whole, if

° Because appellant does not argue that he was entitled to

partial summary judgment against any other respondent

regarding his section 1983 claims, those arguments are waived.

See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (holding

issues not briefed are waived). But because claims asserted

against any other respondent essentially mirror those discussed

above, this waiver causes no prejudice because our analysis

would be the same as articulated there.

App. 32

the net loss is zero, the compensation that is due is

zero. Brown v. Legal Found. of Washington, 538 U.S.

216, 237, 123 S. Ct. 1406, 1420 (2003). Here, the jury

awarded appellant $63,000 in clean-up costs that

it reasoned were necessary to restore the subject

property to its pre-taking fair-market value. And

Shorewood, not appellant, challenged the amount of

the award.

As aptly explained by Shorewood, appellant

cannot relitigate this taking claim by simply renam-

ing it a § 1983 claim. See San Remo Hotel v. City &

County of San Francisco, 545 U.S. 323, 341-348 125

S. Ct. 2491, 2503-2507 (2005) (applying the doctrine

of collateral estoppel to bar relitigating in federal

court a takings claim already litigated in state court).

And although appellant argues that he has not had a

full and fair opportunity to litigate these claims

because of the “fraudulent” wetland designation,

appellant has challenged this designation for well

over a decade, and we have already rejected the

argument regarding fraud of Shorewood earlier in

this opinion.

B. Other 42 U.S.C. § 1983 Claims.

Appellant explains that “[gjenerally, [his] section

1983 claims are based on Shorewood’s misconduct

denying [appellant] a fair and full opportunity to be

heard — i.e., denied appropriate access to the state

court.” Given the numerous times that appellant has

been heard by this court and other courts, we disagree.

App. 33

And, to the extent that appellant’s argument is based

upon his claim that an inaccurate wetland designa-

tion effectively denied him access to the courts, we

again reject this argument for the reasons set forth

above.

Appellant’s section 1983 claim based on equal

protection was insufficiently pleaded. Mere aver-

ments set forth in the pleadings are insufficient to

counter a motion for summary judgment. Minn. R.

Civ. P. 56.05. Although appellant asserts generally

that other landowners are allowed to develop their

properties while he was precluded from doing so, he

fails to point to specific similarly situated individuals

who are receiving this “better treatment.” See Linberg

uv. Steffen, 514 N.W.2d 779, 784 (Minn. 1994).

IIl.

Appellant additionally argues that the district

court erred by denying his motion for a declaratory

judgment/partial summary judgment against Shore-

wood related to the 2000 Vine Hill Road taking.

Again, we disagree.

Appellant claimed that the takings included: (1)

the 33-foot Vine Hill Road easement; (2) construction

of the fence on June 5, 2000; (3) construction of the

walking trail on June 5, 2000; and (4) installation of

fiber optic cable along Vine Hill Road. The district

court held that the facts asserted by appellant were

insufficient to support his claims. The district court

found that “lalny preparatory actions taken by

App. 34

Shorewood were upon a public dedicatioz and were

never completed.” The court also found that “(t]he

‘fence’ that [appellant] claim[s] to have been con-

structed along [his] property was a silt fence ...

[that] was immediately removed upon [appellant’s]

request that it be removed” and “[t]he walking trail

. was never constructed.” Finally, because it is

undisputed that Shorewood did not install the fiber

optic cable, nor did it issue the permit to do so, that

alleged invasion could not be considered a govern-

mental taking despite its permanence.

A party seeking compensation in a condemnation

action must prove that (1) he has an interest in the

condemned property at the time of condemnation; (2)

the interest was taken by the government in the

course of the condemnation; and (3) the interest

taken is compensable. Hous. & Redev. Auth. of City of

St. Paul v. Lambrecht, 663 N.W.2d 541, 545-46 (Minn.

2003). Here, a taking did not occur because appellant

did not demonstrate he had an interest in the 33-foot

portion of Vine Hill Road.

When any road or portion of a road has

been used and kept in repair and worked for

at least six years continuously as a public

highway by a road authority, it shall be

deemed dedicated to the public to the width

of the actual use and be and remain, until

lawfully vacated, a public highway whether

it has ever been established as a_ public

highway or not.

App. 35

Minn. Stat. § 160.05, subd. 1 (2005). And “[t]he width

of the prescriptive easement .. . is not limited to that

portion of the road actually traveled; it may include

the shoulders and ditches that are needed and have

actually been used to support and maintain the

traveled portion.” Barfnecht v. Town Bd. of Hollywood

Twp., 304 Minn. 505, 509, 232 N.W.2d 420, 423

(1975). And because the interest in the property is

established by statute, appellant’s argument that

Shorewood has no recorded easement on this portion

of the subject property lacks merit. See Northfork

Twp. v. Joffer, 353 N.W.2d 216, 218-19 (Minn. App.

1984) (allowing the township to assert an unregis-

tered interest in a road whereby intermittent use and

maintenance of the land had been dedicated to the

public statutorily). Moreover, a public dedication of a

roadway may be established by the use of a small

number of persons. Jd. at 218.

Shorewood argues that for at least six years

before the alleged takings of June 2000, it maintained

the shoulder of Vine Hill Road located on the subject

property (by mowing, weed-spraying, snow storage,

and cleaning). Appellant does not dispute these

asserted facts, but argues instead that applying this

statute constitutes a taking even if its conditions are

satisfied because it is an “unconstitutional” statute.

Appellant, alleging violations of his constitutional

rights, admitted that Shorewood has added a curb

along the east boundary of the subject property and

paved the shoulder to the curb “creating a bicycle

path and to temporarily store snow.” And appellant

App. 36

also established in his complaint that the roadway

has been used by the public.

Moreover, even if Shorewood did not already

have a prescriptive easement over the property under

the adverse-public-use doctrine, the facts asserted are

insufficient to support appellant’s claim of a taking.

Appellant argues that under the Constitution a

citizen must be justly compensated for even the

briefest and least invasive of takings. But it is the

degree of interference with an owner’s property rights

— resulting in a loss of interest in his real property —

that determines whether the governmental action

constitutes a “taking in the constitutional sense.” See

Spaeth v. City of Plymouth, 344 N.W.2d 815, 822

(Minn. 1984) (noting that the difference between a

land intrusion of such frequency, regularity, and

permanency, which constitutes taking, and a mere

temporary intrusion, which should be left only to

possible damages recovery, “is a question of degree”).

If the government’s use of the subject property was

temporary, the landowner does not have a valid claim

for a taking, but may have a claim in tort for nui-

sance or trespass.’ Vern Reynolds, 539 N.W.2d at 619.

Here, the silt fence was on appellant’s property

for less than a week, and the walking trail was not

graded or constructed. The fiber optic cable, although

permanent, was installed by a private company

” Appellant did ot assert a claim in tort for nuisance or

trespass.

App. 37

operating without a permit. Thus, appellant did not

establish that there had been any new takings by

Shorewood.

IV.

Appellant argues that the district court erred by

granting Trivesco’s summary-judgment motion re-

garding his state-law claims regarding Outlot C

because they involve disputed material facts. We

disagree because appellant’s claims are barred by

statutes of limitation.

A six-year statute of limitations applies to claims

based on a “contract or other obligation.” Minn. Stat.

§ 541.05, subd. 1(1) (2006). Promissory estoppel is

considered an other obligation within the purview of

Minn. Stat. § 541.05 (2006). Deli v. Univ. of Minn.,

578 N.W.2d 779, 781-82 (Minn. App. 1998), review

denied (Minn. July 16, 1998). And an action to compel

specific performance must be brought within the

statutory period. Lewis v. Prendergast, 39 Minn. 301,

301-02, 39 N.W. 802, 802 (1888). A claim for tortious

interference with a contract, because it resembles a

breach of contract claim, is subject to the same six-

year statute of limitations. Wallin v. Minn. Dept. of

Corrections, 598 N.W.2d 393, 401 (Minn. 1999),

review denied (Minn. Sept. 28, 1999). Absent fraud,

Minnesota courts interpreting Minn. Stat. § 541.05

have held the statute begins to run when the cause of

action accrues, meaning when a plaintiffs claim

would survive a defendants motion to dismiss for

Aspyp. 2%

failure to state a claim upon which relief can be

granted. Dalton v. Dow Chemical, Co., 280 Minn. 147,

152-53, 158 N.W.2d 580, 584 (1968) (holding a cause

accrues when plaintiff would survive a 12(b)(6) mo-

tion); Juster Steel v. Carlson Cos., 356 N.W.2d 616,

618 (Minn. App. 1985) (holding a breach of contract

claim must be brought within six years of the action

causing the breach).

Negligence claims are also subject to a six-year

statute of limitations. Minn. Stat. § 541.05, subd. 1(5)

(2006).

Fraud claims are also subject to a six-year statu-

tory limitations period. Minn. Stat. § 541.05, subd.

1(6). But if the injured party is ignorant of a cause of

action because of the other partys fraud, the statutory

period is tolled. Dalton, 280 Minn. at 153, 158 N.W.2d

at 584. The statute begins to run “only from the time

the cause of action is discovered or might have been

discovered by the exercise of diligence.” Schmucking

v. Mayo, 183 Minn. 37, 38-39, 235 N.W. 633, 633

(1931). And a document, once properly recorded,

provides constructive public notice. Minn. Stat.

§ 507.32 (2006).

Here, appellant claims that Trivescc (1) by enter-

ing into a restrictive covenant encumbering Outlot C

breached his so-called contract to purchase the prop-

erty and that (2) Trivesco “changed ... Outlot C” to

include less access to the exterior roadway. Appellant

claims, further, that this “secret signing and re-

cording” of the restrictive covenants constituted

App. 39

fraud. But even assuming that the contract was

binding and the signing was a fraudulent breach, a

proper recording of a document cannot be done in

secret. Appellant had constructive knowledge of the

“breach” when the restrictive covenant was filed with

Hennepin County on September 19, 1985, at which

time appellant could have discovered it through a

search of the public records. Further, appellant had

actual notice of the “changed” dimensions of Outlot C

no later than 1988, when he submitted an application

to Shorewood to plat an area in the southwest corner

of the subject property adjacent to Outlot C.

Thus, even if fraudulent, and even if actual

notice were required, the statutory period expired no

later than 1994, and appellant’s state-law claims

against Trivesco alleging breach of contract, third-

party beneficiary breach of contract, promissory

estoppel, fraud, misrepresentation, negligence, joint

concerted tortious conduct, and the request for spe-

cific performance brought in 2004° are time-barred.”

* Even if appellant is correct that the statutory period was

tolled for his state claims pursuant to 28 U.S.C. § 1367(d), the

claims were time barred before his federal complaint was filed in

2000.

* It appears that the district court was incorrect when it

stated that “(tlhe United States District Court found that the

breach of contract claim arose out of the 1984 flooding and was

barred through collateral estoppel and were dismissed with

prejudice.” This was part of the federal magistrate’s report and

recommendation. But the Eighth Circuit declined to exercise

(Continued on following page)

App. 40

Finally, because the legal remedies are barred,

appellant is not entitled to the equitable remedies he

has requested under the “declaratory judgment”

heading. See Cope, 331 U.S. at 464, 67 S. Ct. at 1341.

And a declaratory judgment merely clarifying the

parties’ respective rights is unnecessary. The “restric-

tive covenant” encumbering Outlot C expired by its

terms on September 19, 2005. There is no evidence —

and appellant has not alleged the existence of any —

that he offered to purchase or Trivesco refused to sell

Outlot C for $60,000. Highland Properties, general

partner of Trivesco, stated in its brief that

“lolbviously, if Appellant[ ] were ever to pay Trivesco

the purchase price for Outlot C specified in the

Amended Development Agreement and in the 1985

letter agreement, there simply would be no impedi-

ment to [his] use of Outlot C to access [his] property.”

Without citing any authority, appellant stated in

the “legal issues” section of his brief that “[w]hether

the [district [cJourt erred in denying [appellant’s]

post-judgment motions” is a question before this

court. But appellant omitted this argument from the

body of his brief, and it was completely omitted from

his reply brief. Assignment of error in a brief based on

“mere assertion” and not supported by argument or

supplemental jurisdiction over appellant’s state-law claims.

Johnson, 360 F.3d at 819.

App. 41

authority is waived unless prejudicial error is obvious

on mere inspection. Modern Recycling, Inc., 558

N.W.2d at 772 (quoting Schoepke v. Alexander Smith

& Sons Carpet Co., 290 Minn. 518, 519-20, 187

N.W.2d 133, 135 (1971)). Here, because it is not even

clear which post-judgment motions appellant is

referring to, it is not obvious that a denial by the

district court constituted prejudicial error. Thus,

appellant has waived this argument, and we decline

to address it.

A final word is, we believe, appropriate. Litiga-

tion between appellant and the numerous respon-

dents has been ongoing for over 16 years. Five

Minnesota district court judges have ruled on various

issues; the federal district court for the State of

Minnesota has done so also; this court has issued

three appellate opinions, this opinion is the fourth;

the Eighth Circuit Court of Appeals has spoken; two

petitions for further review have been denied by the

Minnesota Supreme Court; one petition for writ of

certiorari has been denied by the United States

Supreme Court. All issues have been resolved. Al-

though we are not insensitive to appellant’s belief

that he has not received the relief to which he is

entitled, we must disagree. Each of appellant’s claims

has been resolved. He is not satisfied with the resolu-

tion, but the claims are nonetheless resolved. We have

considered all of appellant’s arguments, including

supplemental authorities filed after oral arguments

App. 42

pursuant to Minn. R. Civ.App. P. 128.05, and found

them to be without merit.” It is time that this pro-

longed litigation and the emotional and financial toll

it has taken on all involved — appel'ant and respon-

dents alike — is declared to be at an end.

Affirmed.

We agree with Shorewood that appellant’s supplemental

submission exceeded the permissible scope of rule 128.05. We

have reviewed the additional authorities, without considering

the impermissible arguments, and find that they do not alter our

reasoning

App. 43

STATE OF MINNESOTA

IN COURT OF APPEALS

Ronald Richard Johnson,

Appellant,

Dee Johnson,

Plaintiff,

vs.

City of Shorewood,

Respondent,

City of Minnetonka, ORDER

Respondent, A06-2353

Riley-Purgatory-Bluff Creek

Watershed District,

(Filed Dec. 6, 2007)

Respondent,

Trivesco, et al.,

Respondents,

Highland Properties, Inc., et al.,

Respondents,

Steiner and Koppelman, Inc.,

Respondent.

App. 44

Considered and decided by Hudson, Presiding

Judge; Kalitowski, Judge; and Huspeni, Judge.*

BASED ON THE FILE, RECORD, AND PRO-

CEEDINGS, AND BECAUSE:

1. This appeal is scheduled for oral argument

on December 12, 2007. The appeal is taken from a

judgment entered on October 13, 2006, dismissing

appellant’s claims.

2. Appellant moves for an order taking judicial

notice of letters from the St. Paul District of the Army

Corps of Engineers dated February 8, 2007, and

March 8, 2007. The letters advise appellant that

because appellant has refused to allow the Corps of

Engineers access to his property, the Corps has been

unable to make an approved final determination on

the extent of possible waters of the United States on

appellant’s property.

3. Appellant argues that this court should take

judicial notice of the letters because they establish

that the Corps of Engineers has not designated

appellant’s property as a wetland. Appellant contends

that the letters support appellant’s claim that certain

respondents, including respondent City of Shorewood,

the Riley-Purgatory-Bluff Creek Watershed District,

and the City of Minnetonka, have improperly taken

* Retired judge of the Minnesota Court of Appeals, serving

by appointment pursuant to Minn. Const. art. VI, § 10.

App. 45

the position that the Corps of Engineers designated

the property as a wetland.

4. The City of Shorewood and the City of Min-

netonka oppose appellant’s motion. The City of Min-

netonka filed a responsive motion to strike the

document as outside the record.

5. The papers filed in the district court, the

exhibits, and the transcript of the proceedings, if any,

shall constitute the record on appeal in all cases.

Minn. R. Civ. App. P. 110.01. The February 8 and

March 8 letters are outside of the record for this

appeal.

6. A judicially noticed fact must be one that is

not subject to reasonable dispute in that it is either

(1) generally known within the territorial jurisdiction

of the district court or (2) capable of accurate and

ready determination by resort to sources whose

accuracy cannot reasonably be questioned. Minn. R.

Evid. 201(b). While judicial notice may be taken of

general matters of common knowledge, it cannot be

constitutionally used as a substitute for adjudicating

specific facts without a hearing. /n re Block, 727

N.W.2d 166, 176 (Minn. App. 2007).

7. The position that the Corps of Engineers has

taken regarding whether the property at issue is a

wetland, and the communications between the Corps

and the parties regarding this question over the

course of multiple lawsuits, involve specific facts that

are not appropriate for judicial notice.

App. 46

8. An appellate court may not base its decision

on matters outside the record on appeal, and may not

consider matters not produced and received in evi-

dence below. Thiele v. Stich, 425 N.W.2d 580, 582-83

(Minn. 1988). The February 8 and March 8 letters are

extra-record documents that are not properly before

this, court.

IT IS HEREBY ORDERED:

1. Appellant’s motion to take judicial notice is

denied.

2. The motion by the City of Minnetonka to

strike the extra-record documents is granted.

Dated: Dec. 5, 2007

BY THE COURT

/s/ Natalie E. Hudson

Judge Natalie E. Hudson

App. 47

STATE OF MINNESOTA DISTRICT COURT

FOURTH JUDICIAL

COUNTY OF HENNEPIN DISTRICT

Ronald Richard Johnson

and Dee L. Johnson,

Plaintiff, File No. 27-CV-04-16195

VS. ORDER AND

MEMORANDUM

City of Shorewood; City of.

Minnetonka; Riley-Purgatory-

* Bluff Creek Watershed Dis-

trict; Trivesco, a partnership,

and its partners; Robert H.

Mason, Inc., a corporation;

Highland Properties, Inc., a

corporation; Steiner and

Koppelman, Inc., a corpora-

tion; and Highland Villa

Builders, Inc., a corporation,

Defendants.

(Filed Oct. 11, 2006)

The above-entitled matter came before the Hon-

orable John L. Holahan on July 17, 2006. Erick G.

Kaardal, Esq., 33 South Sixth Street, Suite 4100,

Minneapolis, MN 55402, appeared on behalf of Plain-

tiff.

George Hoff, Esq., 775 Prairie Center Drive, 160

Flagship Corporate Center, Eden Prairie, MN 55344,

appeared on behalf of Defendant City of Shorewood.

App. 48

Elisa M. Hatlevig, Esq., 8519 Eagle Point Boule-

vard, Lake Elmo, MN 55042, appeared an behalf of

Defendant City of Minnetonka.

Paul R. Haik, Esg., 225 South Sixth Street, Suite

4320, Minneapolis, MN 55402, appeared on behalf of

Defendant Reily-Purgatory-Bluff Creek Watershed

District.

Lisa M. Lamm, Esq., 220 South Sixth Street,

1250 Pillsbury Center South, Minneapolis, MN

55402, appeared on behalf of Defendants Trivesco,

Steiner and Koppelman.

Christopher S. Hayhoe, Esq., 220 South Sixth

Street, Suite 2200, Minneapolis, MN 55402, appeared

on behalf of Defendants Highland Properties, Inc.,

and Highland Villa Builders, Inc.

Based upon the evidence adduced, the argument

of counsel and all of the files, records and proceedings

herein, IT IS HEREBY ORDERED THAT:

1. Defendant City of Shorewood’s Motion for

Summary Judgment is GRANTED.

2. Defendant City of Minnetonka’s Motion for

Summary Judgment is GRANTED.

3. Defendant Riley-Purgatory-Bluff Creek Wa-

tersheJ District’s Motion for Summary Judg-

ment is GRANTED.

4. Defendants Trivesco and Steiner and Kop-

pelman’s Motion for Summary Judgment is

GRANTED.

App. 49

5. Defendants Highland Properties, Inc.’s and

Highland Villa Builders, Inc.’s Motion for

Summary Judgment is GRANTED.

6. Plaintiff Johnson’s Motion for Partial Sum-

mary Judgment is DENIED.

7. Plaintiff’s Motion for Declaratory Judgment

is DENIED.

8. Defendants’ are entitled to their costs and

disbursements herein.

9. The attached memorandum is incorporated

herein.

10. Service of this Order may be made upon

counsel for the parties by U.S. mail which

shall constitute good and proper service for

all purposes.

11. LET JUDGMENT BE ENTERED ACCORD-

INGLY

Dated: 10-10, 2006 /s/ John L. Holahan

John L. Holahan

Judge of District Court

MEMORANDUM

In 1981, Plaintiff purchased twenty acres of land

in the City of Shorewood (Shorewood). This property

was bisected by a drainage ditch that, prior to 1984,

eventually emptied into Purgatory Creek to the south

of Plaintiff’s property. In 1984, Shorewood con-

structed a road berm in preparation of installing

roads and utilities required for development of

App. 50

“Waterford,” a subdivision planned by Trivesco, a

commercial developer. Shorewood had _ obtained

consent from the United States Army Corps of Engi-

neers (Corps) for the road and utility installation and

all requisite preparatory work, under a Clean Water

Act Permit which allowed for the filling in of headwa-

ters wetlands. Plaintiffs contest the 1980 designation

by the United States Fish and Wildlife Service that

the field on Plaintiffs’ property that contained the

drainage ditch was a headwaters wetland. The con-

struction done by Shorewood in 1984 raised the

bottom of the drainage ditch and subsequent rains

created flooding of Plaintiffs’ field.

1991 Takings Case’

Plaintiffs first brought suit in District Court in

1991 alleging inverse condemnation, claiming that

the flooding constituted a regulatory taking, which

that court rejected, but the court did find Shorewood

to have flooded Plaintiff’s property and to have

physically taken a permanent drainage easement

since December 31, 1984 (1984 flooding) and issued a

writ of mandamus compelling Shorewood to com-

mence condemnation proceedings and ordered Shore-

wood to pay Plaintiffs $33,878.64 as reimbursement

' Ronald R. Johnson and Dee L. Johnson v. City of Shore-

wood and the Shorewood City Council, said Council consisting of

Mayor Barbara J. Brancel, and Councilpersons Rob Daugherty,

Daniel Lewis, Kyisti Stover, and Robert Gagne, District Court

File No. 91-18099.

App. 51

for attorney fees, costs and expenses incurred in

bringing this action. Shorewood challenged that

determination of the taking as well as the attorney

fees award and appealed the state court decision.

Judge Montgomery’s Order and award was affirmed

by the Court of Appeals on May 11, 1994,’ and review

was subsequently denied by the Minnesota Supreme

Court on July 14, 1994.*

Inverse Condemnation Proceedings

In the condemnation proceedings, Piaintiffs were

awarded $2,000 for the physical taking of the draii.-

age easement and $3,000 for costs to repair the

damages from the subsequent flooding. The commis-

sion also awarded Plaintiffs $500 in reasonable

appraisal fees.’ Plaintiffs were not satisfied with the

* Johnson v. City of Shorewood, No. CX-93-2452 (Minn.Ct.App.

May 11, 1984), review denied, (Minn. July 15, 1994).

* On July 29, 1994 (only 15 days after the Supreme Court

declined review of the matter), the Johnsons moved in District

Court to find Defendants in contempt for failure to begin the

inverse condemnation proceedings, and to be awarded attorney

fees and costs incurred on appeal and for attorney fees and costs

incurred in bringing the contempt motion. District Court Judge

Oleisky denied the motion in its entirety on September 20, 1994

as premature regarding the contempt claims and found that

Plaintiffs were precluded by statute from being awarded attor-

ney fees on appeal. Plaintiffs appealed Judge Oleisky’s decision

which was affirmed by the Minnesota Court of Appeals on May

16, 1995, Case No. CX-94-2056. On July 2, 1995, the Minnesota

Supreme Court denied further review.

* District Court Condemnation Case File No. CD-2344.

App. 52

award and brought a second action in state district,

court to challenge the amount of the award and the

scope of the taking. In that case, the judge ruled that

Plaintiffs were collaterally estopped from relitigating

the scope of the taking,’ but allowed a jury to deter-

mine the value of the taking. The jury awarded

$63,000 for clean-up costs and $2,000 for the value of

the taking. Based on the jury’s finding that there had

been no diminution in value of the property, the trial

court judge vacated the $2,000 award for value as

inconsistent with the jury’s factual findings. Judge

Oleisky awarded Plaintiffs $63,000 together with

costs and disbursements. On May 18, 1998, Shore-

wood paid $116,480.96 to Plaintiffs which included

the $63,000 clean-up costs plus interest from January

1, 1985 through May 18, 1998. Plaintiffs were then

awarded $67,335.95 for costs incurred in preparation

and presentation of their claims at trial.° To date,

Shorewood has paid Plaintiffs $183, 816.91 in satis-

faction of judgments resulting from the inverse

condemnation hearings. Both parties appealed the

° On September 25, 1995, District Court Judge Oleisky

issued an order finding that the scope of the taking was deter-

mined by Judge Montgomery’s Court Order in June 1993. Any

subsequent objections as to the scope of the physical taking were

barred as untimely. District Court File No. CD-2344.

* On October 28, 1999, Plaintiffs brought a motion before

the District Court for taxation of interests and costs which was

denied in part and granted in part by Judge Oleisky. City of

Shorewood v. Ronald Johnson and Dee Johnson, et al., District

Court File No. CD-2234.

App. 53

decisions which were later affirmed by the Minnesota

Court of Appeals.

1996 Johnson v. Minnetonka Action

In 1996, Plaintiffs brought a second state court

action against the City of Minnetonka with allega-

tions that inter alia, the development of the Ashcroft

subdivision, which lay completely within Minnetonka

city limits, had been diverting storm-water run-off

onto Plaintiffs property starting as early as 1992.

This action was dismissed without prejudice for

Plaintiffs’ failure to join necessary parties. Plaintiffs

did not appeal this dismissal. Instead, in 2000, Plain-

tiffs filed a third suit against all parties in the cur-

rent action plus, the United States Government, and

the Corps in U. S. District Court alleging constitu-

tional violations stemming from the alleged takings

in 1984 occurring from Shorewood’s construction of

the ditch dam and also alleged continued takings

occurring when Shorewood allegedly buried fiber

optic cables and also constructed a walking path and

temporarily installed fence along the eastern edge of

Plaintiffs’ property.

App. 54

2000 United States. District Court’

In this first federal case (but third overall suit by

Plaintiffs), Plaintiffs re-asserted the original takings

issues associated with the 1984 flooding and asserted

that the construction of the trail and fencing along

with the buried fiber optic cables constituted new and

uncompensated for takings. The federal complaint

also alleged violations of the Freedom of Information

Act (FOIA), conspiracy between the Defendants to

prevent Plaintiffs from being compensated for the

alleged takings, breach of contract, promissory estop-

pel, fraud, misrepresentation, negligence and inverse

condemnation to sum up a few of the principal

twenty-five counts in the complaint.

The Magistrate’s Report and Recommendation

found that collateral estoppel applied to claims aris-

ing out of the 1984 flooding and that the federal

claims were not supported by any actionable facts.

The Report also found that there was no evidence of

" Ronald Richard Johnson and Dee Lundberg Johnson v.

City of Shorewood; City of Minnetonka; Riley-Purgatory-Bluff

Creek Watershed District; Trivesco, a partnership, and its

partners; Robert H. Mason, Inc., a corporation; Highland

Properties, Inc., a corporation; Steiner and Koppelman, Inc., a

corporation; Highland Villa Builders, a corporation; the United

States; the Corps of Engineers of the United States; the Secretary

of the United States Army in his/her official capacity, Honorable

Louis Calders or his successor; and the Commander-in-Chief of

the Corps of Engineers of the United States in his/her official

capacity, Lt. General Joseph N. Ballard or his successor, United

States District Court, District of Minnesota, Case No. 00-CV-

1281.

App. 55

conspiracy against the Johnsons nor was there evi-

dence offered of violations of federal due process or

federal equal protection standards. On May 18, 2001,

United States Magistrate Judge Susan Nelson dis-

missed all claims arising out of the 1984 flooding with

prejudice as barred by the doctrine of collateral

estoppel. The remaining state claims against Trivesco

and RPBCWD were dismissed without prejudice due

to a lack of jurisdiction in the federal court for the

state claims that had yet to be heard in a Minnesota

state court.

Upon appeal by Plaintiffs, Magistrate Nelson’s

ruling was reviewed de novo by United States District

Court Judge Donovan Frank and affirmed in all

respects and adopted by the court. All claims arising

from prior state litigations were dismissed with

prejudice and any unripe or supplemental claims

were dismissed without prejudice. All federal defen-

dants’ motions for summary judgment were granted

based on either lack of jurisdiction or on the applica-

ble statute of limitations.

The Order affirming the Magistrate’s Report was

then appealed to the United States Court of Appeals

for the Eighth Circuit on August 10, 2001 (one day

after filing the below suit in the Court of Federal

Claims). On March 5, 2004, the Court of Appeals

issued an Opinion which affirmed the lower court’s

ruling with an expanded analysis as to some of the

claims. In reference to claims against the federal

government, the Court of Appeals emphasized the

lack of the pleadings to properly address review of

App. 56

agency actions or violations of constitutional protec-

tions. The Court reviewed supplemental affidavits in

considering the conspiracy charges and affirmed that

Plaintiffs have not met their burden in producing

facts that would show there was an understanding or

agreement between any of the Defendants to violate

Plaintiffs’ rights.

The Court of Appeals found the state claims

unripe for federal jurisdiction as Plaintiffs have failed

to pursue proper state remedies for post-deprivation

issues and fraud allegations against governmental

actors. Claims not yet advanced in state proceedings

were dismissed without prejudice and Plaintiffs

motion to file a third amended complaint was denied.

With the above modifications, the Court of Appeals

affirmed the lower courts rulings.

On October 4, 2004, the Supreme Court denied

certiorari.

2001 Court of Federal Claims

On August 9, 2001, Plaintiffs filed their fourth

suit in the Court of Federal Claims alleging both

physical and regulatory takings arising from the 1984

flooding. The claim also alleged tort claims against

the Corps and other government actors for breaking

and failing to enforce laws. Plaintiffs also alleged a

breach of implied and/or express contracts connected

to the United States Fish and Wildlife Service’s 1980

designation of the Johnson property as wetland.

App. 57

The court found the physical takings claims

relating to the 1984 flooding to be barred by the

applicable statute of limitations and that Plaintiffs

were effectively on notice as of 1984 due to the open

and notorious nature of the pond construction and its

effects, or at the very latest on inquiry notice in 1991

when Plaintiffs commenced action in state court

against Shorewood for claims arising from the 1984

flooding. The court then found that the regulatory

takings claims against government actors failed to

state a claim upon which relief could be granted.

Designation of property as wetland in itself does not

constitute a taking, instead, it is a subsequent denial

such that would prevent an economically viable use of

the designated land that would constitute a taking.

Plaintiffs have not been denied a permit by the Corps

or other government actors therefore the court found

there had been no regulatory taking. Additionally, the

court mentioned in dicta that Plaintiffs had pur-

chased their property subsequent to the wet-aad

designation of the property.

The claims based in tort were dismissed for lack

of proper jurisdiction in the federal courts. The court

also found that the claims based on breach of contract

failed to state a claim for which relief could be

granted. Plaintiffs failed to produce any written

agreements or documentary evidence to support these

claims and thus failed to show that there was any

contract. The court allowed Plaintiffs additional time

to perfect the breach of contract allegations and

present supporting evidence.

App. 58

2004 District Court Action’

On November 3, 2004, Plaintiff filed their fifth

lawsuit asserting the same allegations asserted in the

Complaint filed in 2000 in the United States District

Court. This suit is now before this Court. The title of

the federal complaint was changed to eliminate

federal defendants, but the body of the Complaint has

remained the same. Plaintiffs claim that in their

March 5, 2004 ruling, the Court of Appeals referred

the state claims back to state court, including the 28

U.S.C. §§ 1983 and 1985 taking claims. Plaintiff also

asserts that all claims are tolled under 28 U.S.C.

§ 1367(d). All above named Defendants have indi-

vidually moved for summary judgment based on res

judicata and collateral estoppel inter alia, in light of

all previous litigation between the parties.

In Counts I through V of the Complaint, Plain-

tiffs allege that there has been permanent and tem-

porary, regulatory and physical takings of their

property due to the alleged construction of a fence, a

walking trail, and installation of fiber optic cable

along the edge of their property that borders Vine Hill

Road. The Complaint also alleges in these Counts

* Ronald Richard Johnson and Dee L. Johnson v. City of

Shorewood City of Minnetonka; Riley-Purgatory-Bluff Creek

Watershed District; Trivesco, a partnership, and its partners;

Robert H. Mason, Inc., a corporation; Highland Properties, Inc.,

a corporation; Steiner and Koppelman, Inc., a corporation, and;

Highland Villa Builders, a corporation, District Court File No.

27-CV-04-16195.

App. 59

that flooding due to the installation of a road berm in

1984 has affected a taking of the flooded property.

Plaintiffs claim they remain uncompensated for the

alleged takings as well as the previously adjudicated

physical taking of the drainage easement, and have

brought this suit in state court alleging that all above

named defendants have either together or individu-

ally worked to devalue their property purposefully

and with animus so that the various defendants could

profit from the lowered valuation of Plaintiffs’ prop-

erty.

In Counts V, VIII and X-XIV, Plaintiffs assert

various claims regarding Outlot C. All claims pertain-

ing to Outlot C arise out of alleged ‘secret’ covenants

restricting use of the property and relate to the 1984

flooding. Plaintiffs fail to assert any facts in support

of the allegations that there existed any agreements

between Defendants pertaining to restrictive cove-

nants on the property and this Court finds that all

restrictive covenants on said property were publicly

recorded as of the 1985 Declaration and Plaintiffs

were put on actual notice when they performed a

records search in 1988.

In Counts VI-IX, Plaintiffs assert various consti-

tutional claims arising out of the 1984 flooding as

well as the new allegations of physical takings. Plain-

tiffs’ due process and equal protection claims as to the

federal defendants have been fully litigated and

found insufficient to support a claim against Federal

Defendants. Plaintiffs do not offer any new evidence

to support such claims against state or private actors

App. 60

in this action, instead relying solely on assertions

inade in the original Complaint filed in Federal

District Court in 2000.

In Counts XI-XVI, Plaintiffs make various breach

of contract claims relating to maters [sic] arising out

of the 1984 flooding and the alleged 2000 takings. In

Count XX, Plaintiff also alleges a tort claim against

defendants for tortuous interference with the alleged

contractual relationships between the parties. Plain-

tiffs fail to offer any new evidence or assert any new

facts to support the existence of implied or express

contracts with any of the Defendants relating to these

allegations.

In Counts XVII-XIX, Plaintiffs make various

fraud and negligence claims relating to the 1984

flooding and the alleged 2000 takings. Plaintiffs fail

to offer any new evidence or assert any new facts to

support the existence of agreements between Defen-

dants or existence of animus on the part of the De-

fendants toward Plaintiffs.

In Count XXI, Plaintiffs assert a violation of the

Freedom of Information Act in that the Corps and

other Defendants did not provide information upon

request and intentionally destroyed documents that

had been requested. Plaintiffs have offered no new

evidence or asserted new facts to support these

claims.

In Count XXIT, Plaintiffs allege that all above

assertions have created a devaluation of their prop-

erty and that this devaluation has slandered the title

App. 61

to such property, Plaintiffs have offered no new

evidence or asserted new facts to support this claim,

In Count XXIII, Plaintiffs request this Court to

compel inverse condemnation proceedings in relation

to all alleged takings Plaintiffs claim to be uncom-

pensated for. Plaintiffs have offered no new evidence

or asserted new facts to support this type of action,

nor have Plaintiffs sought a writ of mandamus to

compel such proceedings.

In Count XXIV, Plaintiffs move to have this

Court preserve a right to amend the pleadings. Plain-

tiffs have offered no new evidence or asserted facts

that would support a judicial grant for an amended

pleading.

ANALYSIS

SUMMARY JUDGMENT

Rule 56.03 of the Minnesota Rules of Civil Proce-

dure sets forth the standard for a summary judgment

motion:

Judgment shall be rendered forthwith if

the pleadings, depositions, answers to inter-

rogatories, and admissions on file, together

with the affidavits, if any, show that there is

no genuine issue as to any material fact and

that either party is entitled to judgment as a

matter of law.

App. 62

When considering a summary judgment motion, the

Court must view the evidence in the light most favor-

able to the nonmoving party. See Dempsey v. Jaro-

scak, 290 Minn. 405, 188 N.W.2d 779, 781-82 (1971).

It is well-established that if there is an insufficient

showing of evidence on an essential element of the

nonmoving party’s claim, the claim fails. Celotex

Corp. v. Catrett, 477 U.S. 317 (1986). But once the

moving party has made and supported their sum-

mary judgment motion, the burden shifts to the non-

moving party to show specific material facts support-

ing a triable issue essential to the material elements

of their case. DLH, Inc. v. Russ, 566 N.W.2d 60, 69

(Minn. 1997). Although the court views the evidence

in a light most favorable to the non-moving party,

W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998),

the non-moving party must do more than rest on

mere averments or some creation of metaphysical

doubt. DLH, 566 N.W.2d at 71.

Res Judicata & Collateral Estoppel

Res judicata applies when claims that were, or

could have been, litigated in a prior action and bars

re-litigation as to those claims. Klinefelter v. Krum

and Forster Ins. Co., 675 N.W.2d 330, 335 (Minn. Ct.

App. 2004). A court will apply the doctrine of res

judicata to claims before it when (i) there has been a

final judgment on the merits; (ii) the same cause of

action is involved; (iii) the parties are identical or in

privity; and (iv) the estopped party has had a full and

fair opportunity to litigate the matter. Brown-Wilbert,

App. 63

Inc. v. Copeland Buhl & Co., PL.L.P., 715 N.W.2d

484, 488 (Minn. Ct. App. 2006). Res judicata acts as

an absolute bar to claims that have previously been

fully litigated so that there is a finality to the previ-

_ ous judgment and that a party is not “twice vexed for

the same cause.” Id. at 487-88.

Collateral estoppel applies much the same stan-

dard as for res judicata but has the additional re-

quirement that the issue litigated as opposed to the

claim asserted, be identical to the issue in the prior

adjudication. Hauschildt v. Beckingham, 668 N.W.2d

916, 918 (Minn. Ct. App. 2003). Therefore, collateral

estoppel applies to bar “re-litigation of a right, ques-

tion, or fact distinctly put in issue and directly de-

termined on a prior adjudication.” Jd. at 919.

Statute of Limitations

Plaintiff has failed to establish any facts that

point to a tolling of the applicable statutes of limita-

tions in the above matters. This Court agrees with all

prior decisions by the various courts listed above that

there has been no tolling of the statute of limitations

under 28 U.S.C. § 1367(d) and all claims arising out

of the 1984 flooding are outside the statute of limita-

tions and Plaintiff cannot claim a tolling of the appli-

cable statutes. Plaintiffs’ assertion that Minn. Stat.

§ 541.02 applies to toll the statute of limitations on

their claims relating to Outlot C is misplaced. There

have been no claims of adverse possession asserted

App. 64

and § 541.02 applies to adverse possession and is not

applicable in this matter.

Declaratory Relief

Two principal considerations the court must

consider when evaluating whether a declaratory

judgment is an appropriate remedy are: (i) whether

the judgment will serve a useful purpose in clarifying

and settling legal relations; and (ii) whether the

judgment will terminate and afford relief from uncer-

tainty, insecurity and controversy. Although declara-

tory relief may be available in all types of actions, it

is within the court’s discretion to grant or deny a

declaratory judgment. Minn.Stat.Ann. § 555.06.

REGULATORY AND

PHYSICAL TAKINGS CLAIMS

Plaintiffs claims [sic] that they remains [sic]

uncompensated for various multiple takings of his

property resulting from actions taken by Shorewood

and in Count I of the Complaint, ask for declaratory

relief from this Court to determine all possible prop-

erty rights violations that have occurred in the past

and to establish and protect any remaining property

rights that Plaintiffs may have in the future. In

Count X, Plaintiffs ask for declaratory relief in the

form of a provision to construct a road across Outlot C

allowing for additional access to Plaintiffs’ property.

This Court finds that all property claims arising out

of the 1984 ditch damn [sic] and subsequent flooding

App. 65

have been fully adjudicated on the merits and, under

the doctrine of res judicata, summary judgment is

proper as to those claims. As to the remaining claims,

this Court finds the claims to be unsupported and

without merit and proper for summary judgment (see

discussion below). Where the court issues summary

judgment, there is no longer a legal relationship or

controversy that needs clarification and a declaratory

judgment is not an appropriate remedy. This court

does not find it necessary to enter a declaratory

judgment in the above matters.

Claims arising out of the 1984 flooding

are barred by the doctrines of

collateral estoppel, res judicata and

applicable statutes of limitations.

This Court finds that all takings claims arising

out of the 1984 flooding due to the installation of the

road berm by Shorewood have been fully and fairly

litigated to a final resolution as evidenced by state

and federal actions discussed above. Plaintiff has not

offered any new claims or issues regarding the tak-

ings claims against the parties except for the few new

allegations discussed immediately below. The parties

to this litigation are all parties that have been in-

volved in the previous litigations on these identical

issues. Additionally, when evaluating the applicable

statutes of limitations, all previously litigated claims

arising out of the 1984 flooding are barred as outside

of the statute. Since Plaintiffs have not offered any-

thing new regarding the 1984 flooding claims that

App. 66

has not been litigated previously, all claims arising

out of the 1984 flooding are thus barred by the doc-

trines of res judicata, collateral estoppel and the

applicable statute limitations and will not be consid-

ered by this court.

Facts asserted regarding alleged takings in

June 2000 are insufficient to support a claim.

The new alleged takings claims asserted by

Plaintiffs are: (i) construction of a ‘fence’ along the

Vine Hill Road side of Plaintiffs’ property; (ii) con-

struction of a walking trail; and (iii) the installation

of fiber optic cable along Plaintiffs’ property line. The

‘fence’ that Plaintiffs claim to have been constructed

along their property was a silt fence installed to help

prevent erosion during a construction project and was

immediately removed upon Plaintiff’s request that it

be removed. Plaintiffs have not established that there

was a taking of any property due to the temporary

placement of the silt fence. The walking trail that

Plaintiff referenced was never constructed and with-

out construction of a trail, there has been no taking of

any property for a city walking trail and thus no loss

to Plaintiffs. Any preparatory actions taken by

Shorewood were upon a public dedication and were

never completed. Neither the placement of the silt

fence or the preparatory work on a public trail rise to

the level of, an actionable taking, therefore Shore-

wood’s motion for summary judgment as to this issue

will be granted as a matter of law.

App. 67

As to the installation of fiber optic cable along

Plaintiffs’ property line, it is undisputed between the

parties that Shorewood is not responsible for the

installation of the fiber optic cable, nor did Shorewood

issue a permit for it to be placed on the Johnson

property. The above named Defendants are not liable

for the installation of the fiber optic cable, thus the

claim that there has been a taking due to the instal-

lation of that cable will be dismissed and summary

judgment in favor of Defendants will be granted in

that matter.

Plaintiff has received full

compensation for the physical taking

of an easement by Shorewood.

Plaintiffs claim to be uncompensated for the

physical takings due to flooding and all regulatory

taking connected with that flooding. Plaintiffs have

received payment from the judgment against Shore-

wood in the Condemnation hearings, which Shore-

wood has offered evidence to show payment in the

form of checks made payable to Plaintiffs which

satisfy all due judgment amounts. Plaintiffs do not

remain uncompensated for those takings and have in

total received $183,816.91 from Shorewood in satis-

faction of judgments in Plaintiffs’ favor. This Court

finds Plaintiffs to have been fully compensated for all

judgments entered in Plaintiffs’ favor in connection

with the condemnation proceedings arising out of the

physical taking of the drainage easement.

App. 68

INVERSE COMDEMNATION CLAIM

Since this Court has found that there have been

no new takings, there is no need to exercise an in-

verse condemnation hearing. A party is entitled to

assert an inverse condemnation clair through a writ

of mandamus. Such a writ will not be issued unless

the party asserting the claim has shown they have

suffered a direct or substantial harm. Alevizon v.

Metropolitan Airports Commission of Minneapolis

and St. Paul, 298 Minn. 471, 485, 216 N.W.2d 651,

661 (1974). Plaintiffs have not shown they have

suffered direct or substantial harm resulting from the

temporary placement of a fence (which was removed

immediately upon Plaintiffs’ request), nor from the

walking trail that was never physically constructed.

Plaintiffs have failed to show that Shorewood is liable

for the installation of the fiber optic cable, and even if

liability was shown, Plaintiffs fail to establish they

have suffered any harm from the installation of the

fiber optic cable. The facts asserted in this Complaint

do not rise to a level of proof of harm that would

support this Court issuing a writ to compel an inverse

condemnation hearing.

BREACH OF CONTRACT CLAIMS

In Counts X through XV, Plaintiff makes various

claims regarding alleged implied and express con-

tracts between Plaintiffs and Defendants. In the 2000

United States District Court and the 2001 Court of

Claims actions, Plaintiffs made the identical breach

App. 69

of contract claims. The United States District Court

found that the breach of contract claim arose out of

the 1984 flooding and was barred through collateral

estoppel and were dismissed with prejudice. The

Court of Federal Claims found that Plaintiffs did not

assert enough facts to establish an actionable claim

and allowed Plaintiffs additional time to perfect their

breach of contract allegations. This Court finds that

in addition to Plaintiffs continued failure to assert

any additional facts to support the existence of ex-

press or implied contracts, the dismissal with preju-

dice by the United States District Court is

controlling. Plaintiff has failed to establish that there

were any implied or express contracts between the

parties and without a showing of the existence of a

contract, there is no breach shown on the part of the

Defendants in this case. Plaintiffs’ breach of contract

claims fail for this reason.

In Count XVI, Plaintiff is requesting specific

performance on those alleged contracts. Without a

showing of the existence of any form of contract,

Plaintiffs’ motion for specific performance of those

alleged contracts must also fail. The fence Plaintiffs

complain about has already been removed, and the

walking trail was never constructed. As to the fiber

optic cable, Shorewood is not liable for the installa-

tion of or permitting for such installation of the cable

and therefore cannot be compelled to remove such

cable. Plaintiff has failed to establish that he and

Shorewood ever entered into an agreement that

would support such a remedy.

App. 70

FRAUD CLAIMS

The fraud claims asserted in Count XVII of this

Complaint have been previously addressed in the

2000 United States District Court action. In that

case, Magistrate Nelson found that in addition to the

claims arising out of the 1984 flooding were barred by

collateral estoppel, Plaintiffs had offered no evidence

that would show the existence of a conspiracy be-

tween Defendants to violate any of Plaintiffs’ rights.

Plaintiff [sic] has failed to offer any additional evi-

dence to show that Defendants conspired against the

Johnsons, but instead made the decision to rely on

allegations in the previous Complaint. Without

offering any evidence sufficient to support a finding of

conspiracy, this Court finds that Plaintiffs’ claims of

conspiracy do not survive Defendants motions for

summary judgment.

This lack of evidence pointing toward any con-

spiracy between Defendants in this case to deprive

Plaintiffs of federally protected rights, under color or

law or otherwise, works to eliminate any cause of

action under 42 U.S.C. §§ 1985 or 1983. Both sections

require a showing of a deprivation of a federally

protected right in order to be actionable and Plaintiff

has failed to make such a showing. All claims arising

out of the 1984 flooding are barred by collateral

estoppel or the applicable statute of limitations.

Claims arising out of the alleged 200 [sic] takings are

unsupported by the facts as discussed above. Plaintiff

fails to establish a conspiracy between Defendants to

deprive him of a federally protected right and thus

App. 71

has no cause of action under 42 U.S.C. §§ 1985 or

1983.

NEGLIGENCE CLAIMS & TORT CLAIMS

As discussed above, Plaintiff has failed to estab-

lish the existence of any implied or express contracts

between the parties. The claims in Counts XVIII-XX

either stem from the 1984 flooding and are barred by

collateral estoppel or are based on unsupported

claims of takings in 2000. Plaintiffs fail to provide

evidence or assert additional facts that would support

a claim of negligence or misrepresentation by the

Defendants. The allegations in Counts XVIII-XX arise

from the 1984 flooding of the Johnson’s property and

all claims arising out of that incident are barred by

collateral estoppel and have either been fully litigated

or are barred by the applicable statute of limitations

as discussed by the United States District Court in

2001.

FREEDOM OF INFORMATION ACT CLAIM

Plaintiffs Freedom of Information Act (FOIA)

claims were brought in federal court and dismissed as

barred by the applicable statute of limitations. These

claims arise from the 1984 flooding and the applica-

ble statute of limitations began to run at that time or

at the very latest by 1991 when the initial lawsuit on

these issues was brought in state court. Plaintiff has

failed to assert any additional facts that would sup-

port a FOIA. violation. The allegations in Count XXI

App. 72

arise out of the 1984 flooding of the Johnson’s prop-

erty and all claims arising out of that incident are

barred by collateral estoppel and have either been

fully litigated or are barred by the applicable statute

of hmitations as discussed by the United States

District Court in 2001.

SLANDER OF TITLE CLAIM

Plaintiff has failed to assert any additional facts

that would support a claim ov slander of ‘itle. The

allegation in Count XXII arises out of the 1984 flood-

ing of the Johnson’s property and all claims arising

out of that incident are barred by collateral estoppel

and have either been fully litigated or are barred by

the applicable statute of limitations as discussed by

the United States District Court in 2001.

PRESERVATION OF RIGHT

TO AMEND PLEADINGS

Plaintiff fails to assert a basis upon which this

Court would grant the motion to preserve the right to

amend the pleadings. Plaintiff has had ample oppor-

tunity to perfect the pleadings over the years that

these claims have been litigated in various courts,

both at the state and the federal level. Under Rule

15.04 of the Minnesota Rules of Civil Procedure, a

court may permit a party to serve a supplemental

pleading that sets forth transactions, occurrences or

events that have happened since the date of the

initial pleading. There is nothing in the Rules of Civil

App. 73

Procedure that provides for the ‘preservation’ of a

right to amend the pleadings. A party who wishes to

amend the pleadings must make a motion to the

court The date of the initial pleading in this matter is

November 2nd, 2004. None of the parties have as-

serted facts or occurrences that have happened since

that date, therefore this Court will not grant Plain-

tiff’s motion to amend the pleadings.

CONCLUSION

Plaintiffs have had a full and fair opportunity to

litigate all issues arising out of the 1984 flooding and

have failed to produce sufficient facts to support a

taking claim regarding incidents occurring in 2000.

For the reasons cited herein, Summary Judgment is

granted in favor of all Defendants and such Defen-

dants will be granted their costs and disbursements

incurred in this matter. Plaintiffs’ Motion for Partial

Summary Judgment and Requests for Declaratory

Judgments are denied.

J.L.H.

App. 74

STATE OF MINNESOTA

IN SUPREME COURT

A06-2353

Ronald Richard Johnson,

Petitioner,

Dee Johnson,

Plaintiff,

VS.

City of Shorewood,

Respondent,

City of Minnetonka,

Respondent,

Riley-Purgatory-Bluff Creek Watershed District,

Respondent,

Trivesco, et al.,

Respondents,

Highland Villa Builders, Inc.,

Respondent.

ORDER

(Filed Apr. 29, 2008)

Based upon all the files, records and proceedings

herein,

App. 75

IT IS HEREBY ORDERED that the petition of

Ronald Richard Johnson for further review be, and

the same is, denied.

Dated: April 29, 2008

BY THE COURT:

/s/ Russell A. Anderson

Russell A. Anderson

Chief Justice

DIETZEN, J., took no part in the consideration or

decision of this case.

App. 76

A06-2353

STATE OF MINNESOTA

IN COURT OF APPEALS

Ronald and Dee Johnson,

Appellants,

VS.

City of Shorewood; City of Minnetonka;

Riley-Purgatory-Bluff Creek Watershed

District; Trivesco, a partnership; and its

Partners; Robert H. Mason, Inc., a

corporation; Highland Properties, Inc.,

a corporation; Steiner and Koppelman,

Inc., a corporation; and Highland Villa

Builders, Inc., a corporation,

Respondents

REPLY MEMORANDUM TO RESPONDENTS’

OPPOSITION TO APPELLANTS

RONALD AND DEE JOHNSONS’

REQUEST FOR JUDICIAL NOTICE OF

FEDERAL AGENCY COMMUNICATIONS

Shorewood’ has been consistent since the start

of the Johnsons’ first action against the city for the

‘ References to “Shorewood” encompass the City of Shore-

wood, the Watershed District and the City of Minnetonka. To

date, only Shorewood and Minnetonka have responded to the

Johnsons’ motion on judicial notice.

App. 77

unconstitutional taking of their property by a ditch

dam constructed over twenty-two years ago. Shore-

wood has consistently declared (without evidence)

that the Johnsons’ property was a pre-taking wetland

and, then, represented to the various courts that the

United States Corps of Engineers determined the

city’s pre-taking wetland representation as true

because the Corps had determined a_ pre-taking

federal Clean Water Act wetland.’ But, it is not true.

The issue, therefore, is Shorewood’s conduct.

When, if ever, was Shorewood to inform the court of

the accurate and true position of the Corps? Failure

to make the disclosure is a fraud on the court. How-

ever, the appellants’ legal claims do not depend on

proving fraud on the court, but rather that the con-

tinued position of Shorewood, in light of the Corps’

contradictory position, has resulted in the deprivation

of Johnsons’ constitutional and statutory guarantees”

to just compensation for Shorewood’s continual gov-

ernmental taking of their property.

The principal legal issue before the Court of

Appeals, under these facts and circumstances, is the

failure of the lower court to accurately determine the

Johnsons’ claims for declaratory judgment, inverse

condemnation and 42 U.S.C. § 1983 claims.

* Appellants Br. at p. 8, Johnson App. pp. 181-199; 236-266;

Dahlberg Aff. 5th, { 8.

* Minn. Stat. § 117.

App. 78

Shorewood does not dispute the Johnsons’ posi-

tion on the source of the Corps’ communication dated

February 8 and March 8, 2007. Thus, the Johnsons

meet the second alternative prong of Minn. R. Evid.

201(b): “capable of accurate and ready determination

by resort to sources whose accuracy cannot reasona-

bly be questioned.” Shorewood does argue however,

that “while judicial or official notice may be taken of

general matters of common knowledge, it cannot be

constitutionally used as a substitute for adjudicating

specific facts without a hearing.” There is no need

and the Johnsons do not seek this Court to adjudicate

specific facts or engage in fact-finding.

The February and March Corps’ letters simply

crystallize the facts of the consistent position of the

Corps regarding determinations of the existence of

pre-taking wetlands on the Johnsons’ property — that

the Corps has never done so. That it isolates and

clarifies Shorewood’s previous and continued misrep-

resentation or mistaken representations to the court

about the existence of pre-taking wetlands is unset-

tling only to Shorewood because of what it represents

— the city’s rationale not to provide just compensation

to the Johnsons despite guarantees provided in Minn.

Stat. § 117 and the Just Compensation Clauses in the

United States and Minnesota Constitutions.

* In re Block, 727 N.W.2d 166, 176 (Minn. App. 2007).

App. 79

Adjudicated facts reflect Shorewood making

representations to the Court since 1996° of the Corps

having determined the existence of pre-taking wet-

lands on the Johnsons’ property. Shorewood’s position

has been consistent and consistently contradicted by

the Corps. Nonetheless, Shorewood has continued to

marry the Corps to a position it has not made and

cannot make. No further hearing is necessary on

these adjudicated facts.

The central issue of the Johnsons’ appeal is the

inaccurate lower court decision on Johnsons’ claims

under Minnesota’s Declaratory Judgment Act, Minn.

Stat. § 117 and under 42 U.S.C. § 1983. Shorewood’s

opposition to the Corps’ 2007 letters merely reflect its

greatest fear -— Shorewood’s pre-taking wetland

position since 1996 and the resulting “zero” compen-

sation for the taking of the Johnsons’ property, cannot

be carried forward for continued takings without

compensation in light of Minn. Stat. § 117 and the

Just Compensation Clauses of the United States and

Minnesota Constitutions.

The Court of Appeals should grant the Johnsons’

motion for judicial notice, regarding the February 8,

2007 and Match 8, 2007 letters of the United States

Army Corps of Engineers.

” dd.

App. 80

Dated: April 6, 2007.

MOHRMAN & KAARDAL, P.A.

/s/ Erick G. Kaardal

Erick G. Kaardal,

Attorney No. 229647

33 South Sixth Street,

Suite 4100

Minneapolis, MN 55402-3601

Telephone: (612) 341-1074

Attorney for Appellants

Ronald and Dee Johnson

App. 81

A06-2353

STATE OF MINNESOTA

IN COURT OF APPEALS

Ronald and Dee Johnson,

Appellants,

VS.

City of Shorewood; City of Minnetonka;

Riley-Purgatory-Bluff Creek Watershed

District; Trivesco, a partnership; and its

Partners; Robert H. Mason, Inc., a

corporation; Highland Properties, Inc.,

a corporation; Steiner and Koppelman,

Inc., a corporation; and Highland Villa

Builders, Inc., a corporation,

Respondents

MOTION OF APPELLANTS RONALD AND

DEE JOHNSON RE: REQUEST FOR JUDICIAL

NOTICE OF AGENCY COMMUNICATIONS

The Appellants Ronald and Dee Johnson move

this Court under Minn. R. App. P. 127 to take judicial

notice of the Department of the Army, Corps of Engi-

neers communications dated February 8, 2007 and

March 8, 2007 and attached hereto as Attachments A

and B. The communications are evidence of federal

agency statutory interpretations relating to Shore-

wood’s previous statements in District Court proceed-

ings, City [sic] Shorewood v. Johnson, Case No. CD-

2344 (1996), affirmed by the Minnesota Court of

App. 82

Appeals, City of Shorewood v. Johnson, No. C5-97-

1525, 1998 WL 188561 (Minn. App. 1998) that the

U.S. Corps of Engineers had determined a pre-

takings wetlands under the federal Clean Water Act,

33 U.S.C. § 1344, on the Johnsons’ property.

The Appellants provided the District Court with

a detailed review of Shorewood’s statements that the

Corps had determined a pre-taking Clean Water Act

wetland on the John

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