City of Crystal, Respondent, vs. Susan M. Zebracki-Wesely, et al., Appellants, City of Crystal, et al., Respondents below.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-23

 

City of Crystal,

Respondent,

 

vs.

 

Susan M. Zebracki-Wesely, et al.,

Appellants,

 

City of Crystal, et al.,

Respondents below.

 

Filed December 23, 2003

Affirmed; motion granted

Harten, Judge

 

Hennepin County District Court

File No. CD2684

 

Franciszek Wesely, Susan M. Zebracki-Wesely, 10729 Dowry Avenue, Tampa, Florida 33615 (pro se appellants)

 

John M. LeFevre, Robert J. Lindall, Bryan D. Shirley, Kennedy & Graven Chartered, 470 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellants challenge the condemnation of their property as hazardous property.  They argue that they were denied due process of law and that the district court abused its discretion in admitting the testimony of an environmental health specialist.  Because we see no denial of due process and no abuse of discretion, we affirm. 

FACTS

 

The water meter for a house owned by appellant Susan Zebracki-Wesley indicated that 98,400 cubic feet (736,000 gallons) of water had been consumed in three months.  Because this was about 58 times the normal amount of water usage, the utility billing division of respondent City of Crystal (the City) sent a meter reader to check its accuracy.  After the meter reader observed condensation on the inside of the house windows, the City's police department and environmental health specialist performed a health and welfare check.  They found a broken pipe spewing hot water into the sealed, unoccupied house, which was permeated with moisture, mold, and water damage.  The specialist padlocked the house and posted a notice on it.  He later described the damage as "catastrophic" and said the mold was the worst case he had ever encountered.

A certified letter was sent to appellant at the Florida address where Hennepin county records indicated that she and her husband, appellant Frank Wesely, lived.  The letter said the property was unhealthy and unsafe and could not be entered until it was determined to be safe.  The letter was returned unopened.

When appellants received the bill for the water and called to complain, they provided an e-mail address.  The letter was emailed to them; it notified them that "the house had a horrible odor" and that "[t]he walls, floors, etc[.] were found covered with black mold."   Appellants were later notified of what they had to do to bring the property into compliance with city codes and of their obligation to advise the City of their repair timeline.  Appellants were given extensions of the deadline for providing a remediation plan and a timeline, but never provided a plan or a timeline.

At the recommendation of its staff, the City sought to take title to and possession of the property.  Because personal service on appellants of the City's petition and motion was problematic, the City alternatively served appellants by publication.  Appellants requested a continuance for the hearing date, which was granted.

Following the hearing, the district court ordered the appointment of commissioners to ascertain and report the amount of damage appellants would sustain from the condemnation of their property and ordered the transfer of title and possession. Appellants, acting pro se, challenge these orders, arguing that service was improper, that they were denied due process, and that the district court abused its discretion in admitting testimony from the City's environmental health specialist.[1] 

D E C I S I O N

 

1.         Service of Process

            Determination of whether service of process was proper is a question of law.  Turek v. A.S.P. of Moorehead, Inc., 618 N.W.2d 609, 611 (Minn. App. 2000), review denied (Minn. 26 Jan. 2001). 

            The district court found:

25.       Process servers, acting on behalf of the City, attempted personal service on [appellants] of the Petition and Motion for Order Authorizing Transfer of Title and Possession pursuant to Minn. Stat. § 117.042 and Notice of Hearing in this matter.  There were several such attempts . . . both at the known Florida address of [appellants] and at various locations in Minnesota.  On September 17, 2002, a process server on behalf of [the City] served the petition and notice of hearing in this matter upon a person of suitable age and discretion to receive service at 715 47 1/2 Avenue Northeast, Columbia Heights, Minnesota.  The person served . . . admitted that [one appellant] was residing at that address at that time . . . [and] was authorized to accept service of process on behalf of [the other appellant].

 

26.       As evidenced by affidavits of service on file with this court, [the City] has complied with all requirements for service by publication of its Petition and Motion for an Order Authorizing Transfer of Title and Possession and notice of the hearing in this matter by publication in the legal newspaper Finance and Commerce on October 29, 2002, November 5, 2002 and November 12, 2002.  Pursuant to the Court's order authorizing use of publication as an alternative method of service in this matter, [the City] also gave mailed notice of the December 27, 2002 hearing to [appellants].

 

Appellants do not dispute these findings, but say they were "never served with papers." They also rely on Minn. Stat. § 117.042 (2002).  But their reliance is misplaced: that statute provides that, in condemnation proceedings,

the petitioner shall, at least 90 days prior to the date on which possession is to be taken, notify the owner of the intent to possess by notice served by certified mail and before taking title and possession shall pay to the owner or deposit with the court an amount equal to petitioner's approved appraisal of value.

 

The City complied with this provision: it did not take possession of appellants' house until 21 February 2003, which was 100 days after 12 November 2002, the final service by publication.  That date was also more than 20 days before the hearing on 21 January 2003, so the City also complied with Minn. Stat. § 117.055, requiring 20 days' notice of a hearing. 

            The City met all the relevant requirements for service on appellants.

2.         Due Process of Law[2]

            Appellants argue that the district court was unfair in denying them as much time as they wanted to present their case while allowing the City all the time it wanted.  This argument is based on two events during the hearing.  In the first, the district court told appellants, before a recess, that they would have about an hour to present their case.  When the hearing resumed after the recess, the court asked the City if it had anything further.  The City's attorney said he would like to offer two affidavits that had been used in the presentation of the case that morning.  Appellants objected to the affidavits on the grounds that the City was using up appellants' time in offering them, but then agreed that the affidavits were admissible.  The district court said, "[W]e'll mark them as Exhibits 1 and 2, but let's do that after 4:30 so we don't take any time from [appellants] here."

The second event occurred after appellants rested.  The district court asked the City if it had any rebuttal.  Counsel for the City replied:

Well, Your Honor, there were a couple of brief things I was hoping to clear up [with one witness], but I'm alsoI understand that the Court has been very kind in giving us as much time as you have.  So I would understand if you wish to limit any further testimony.

 

The district court said, "Well, I don't want to limit anybody.  If you think it's critical for me to hear it, then we'll hear it."  After the City had re-examined the witness, appellants were allowed to cross-examine, and did so, although the court pointed out that they could address only the new material brought up on re-direct examination.  Appellants' re-cross examination lasted two or three times as long as the City's re-direct examination.  We conclude that appellants were not deprived of due process or a fair trial by the district court's procedure.     

3.         Testimony of the Environmental Health Specialist

            Appellants moved during the hearing "to strike all the medical statements made by [the City's environmental health specialist].  He's simply not qualified.  I have spoken to several medical doctors, and I have an informed opinion . . . that [they have a contrary view]."  Counsel for the City opposed the motion:

[T]here is an inadequate basis for striking the testimony of [the City's environmental health specialist], I believe, because he has described his qualifications and the literature that supports his opinion.  And I don't think that they require him to be a medical doctor in order to describe what he has [described].

 

The district court denied the motion.

A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion.  Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.

 

Benson v. N. Gopher Enters. Inc., 455 N.W.2d 444, 446 (Minn. 1990) (citation omitted).

            The City's environmental health specialist testified that he is registered by the University of Minnesota as an Environmental Health Specialist, that he has a Master of Public Health and Environmental Health degree from the University, and that he is a member of the Minnesota Indoor Air Quality Coalition.  He testified concerning the water and mold damage and the quality of the air inside appellants' home.  The district court did not abuse its discretion in refusing to strike his testimony.

            We conclude that appellants were not denied due process of law and that the district court did not abuse its discretion.

            Affirmed; motion granted.

 

[1] The City moves to strike those portions of appellants' brief and appendix that contain or refer to materials not presented to the district court.  The record on appeal consists of "papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any."  Minn. R. Civ. App. P. 110.01.  The motion is granted. 

 

[2] We address this issue although it may not be properly before us. Appellants' due process objection is really an objection to the procedure used at the hearing.  In regular civil cases, "matters such as trial procedure . . . are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error."  Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).  Condemnation cases are not regular civil cases, but special proceedings.  Park & Recreation Bd. v. Carl Bolander & Sons, Prop., 436 N.W.2d 481, 482 (Minn. App. 1989).  The trial in a condemnation matter, however, is to occur "as in any other civil action."  Minn. Stat. § 117.175 (2002).  Here, there was no motion for a new trial.