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Elizabeth Howell v. City of Minneapolis

April 22, 2013

ELIZABETH HOWELL, APPELLANT,
v.
CITY OF MINNEAPOLIS, RESPONDENT.



Hennepin County District Court File No. 27CV1122208

The opinion of the court was delivered by: Stoneburner, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed in part, reversed in part, and remanded

Considered and decided by Kirk, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

UNPUBLISHED OPINION STONEBURNER, Judge

Appellant homeowner challenges dismissal of her lawsuit against respondent city

(1) seeking a declaratory judgment that homeowner is not responsible for repair of a retaining wall located near her property; (2) asserting a claim of abuse of process; and (3) seeking an award of attorney fees. Because a material fact question exists with regard to responsibility for repair of the wall, we reverse the grant of summary judgment dismissing appellant's request for a declaratory judgment that (1) appellant is not responsible for the retaining wall; (2) appellant need not repair the retaining wall; (3) respondent must repair or replace the retaining wall; and (4) respondent cannot charge appellant for repair or replacement of the wall. Because the district court did not err in granting summary judgment on appellant's abuse-of-process claim and because the request for attorney fees is dependent on that claim, we affirm summary judgment on those claims.

FACTS

Appellant Elizabeth Howell owns a home in respondent City of Minneapolis (city) located at 4753 Drew Avenue South, on the corner of Drew Avenue South and West 48th Street. The legal description of Howell's property is "Lot 14, Block 11, Kensington, Hennepin County, Minn., according to the recorded plat thereof." The original plat map of the Kensington Addition, dated May 1887, states that the original owners of the land "donate and dedicate to the public use forever all streets as shown on the accompanying plat." As platted, 80 feet (40 feet on each side of the center line) is designated as West 48th Street, and the south side of Howell's property ends where the area designated for the street begins.

Currently, the paved portion of West 48th Street is 36 feet wide with an eight-foot-wide boulevard, six-foot-wide sidewalk, and eight-foot strip of land on both sides of the street. A substantial retaining wall runs along the south side of Howell's property, between a portion of the strip of right-of-way that is adjacent to the property and the sidewalk. The wall turns 90 degrees north, running perpendicular to the sidewalk and along Howell's driveway and ends at her garage, which appears to be dug into the hillside. The record does not contain the dimensions of the wall, but photographs show that the portion adjacent to Howell's driveway is nearly as tall as her garage. The wall provides support to the soil north of the sidewalk and west of Howell's driveway.

In August 2008, the city inspected the retaining wall and determined that it violated the Minneapolis Code of Ordinances (MCO). The city asked Howell to "[r]epair or replace the retaining wall at this property in a professional manner" and cited MCO § 244.1590 as the support for its position. Between September 2008 and November 2011, Howell had more than ten interactions with the city in which the city continuously insisted that it was her responsibility to repair the wall and Howell continuously asked for the legal authority supporting that position, which was never fully provided by the city.

In November 2011, Howell sued the city seeking a declaratory judgment regarding responsibility for the retaining wall, asserting a claim of abuse of process, and seeking attorney fees. Specifically, Howell sought a declaratory judgment:

1. Declaring that: Howell does not own the property on which the retaining wall sits at the southwest corner of 48th Street and Drew Avenue South, there is no right-of-way with respect to Howell's [p]roperty and the retaining wall, Howell is not an abutting property owner to the retaining wall, Howell is not an adjacent property owner to the retaining wall, and Howell's [p]roperty does not benefit from the retaining wall.

2. Declaring that: Howell is not responsible financially or otherwise for any repairs made to the retaining wall located at the southwest corner of 48th Street and Drew Avenue South, the [c]ity's issuance of the administrative citations to Howell was improper, the [c]ity's threat to attach baseless unpaid administrative fees to her taxes was improper, and the [c]ity pursued Howell as responsible for the retaining wall without a proper basis in law or fact.

The parties made cross-motions for summary judgment. After the hearing on the motions, the district court granted the city's motion for summary judgment on all claims and dismissed ...


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