# Petition for Writ of Certiorari — Johnson v. City of Shorewood (No. 08-127) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1175%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text Na 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 ll 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). lV 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..+. 16 17 22 25 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 iX 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 2 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 3 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). 4 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 5 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. 6 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 7 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 8 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 9 “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 10 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. 11 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). 12 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. 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 ‘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 21 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. 22 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 23 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 24 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 25 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). 26 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. 27 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 28 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 29 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. e 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. I. 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.” V. 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, e [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1175%3A1. Public record. Not legal advice.