City of Orono, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1618

City of Orono,
Respondent,

vs.

Jay T. Nygard, et al.,
Appellants.

Filed May 1, 2017
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CV-11-5626

Soren M. Mattick, Shana N. Conklin, Campbell Knutson, P. A., Eagan, Minnesota (for
respondent)

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellants)

Considered and decided by Larkin, Pr esiding Judge; Connolly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellants argue that the district court abused its discretion in awarding attorney
fees to respondent under Minn. Stat. § 588.11 (2016). Because we conclude that the
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district court did not err in determining that attorney fees are losses or damages under
section 588.11 (2016) and in granting the attorney-fees award, we affirm.
FACTS
Appellants Jay and Kendall Nygard (the Nygards) constructed a wind turbine in
their backyard in violation of respondent City of Orono’s (Orono) residential zoning
code. The Nygards applied for a permit to construct the wind turbine, which Orono
denied. The Nygards nonetheless constructed the turbine. The Nygards challenged
Orono’s denial of their permit application in district court. The district court affirmed
Orono’s decision.
The Nygards filed an appeal in which this court reversed and remanded. City of
Orono v. Nygard, No. A12-0711, 2012 WL 5188078 (Minn. App. Oct. 22, 2012). We
determined that the Orono ordinance describing lawful accessory uses was not
exhaustive, and therefore Orono could not support its decision to deny the Nygards’
permit application based solely on Orono’s interpretation of a single provision of its
zoning code. Id. at *3–4. We remanded the case “to [Orono] for further consideration of
the Nygards’ permit application.” Id.
After re-examining the Nygards’ application, Orono again denied the permit,
determining that their wind turbine did not comply with Orono’s zoning code. In the
ongoing district court action, both parties moved for summary judgment. In May 2013,
the district court granted summary judgment to Orono and denied the Nygards’ summary-
judgment motion. The district court ordered the Nygards to remove the turbine, pad, and
footings within 30 days. This court dismissed the Nygards’ appeal of the district court’s
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judgment because it was untimely. See City of Orono v. Nygard, No. A13-1459 (Minn.
App. Nov. 5, 2013) (order).
In early 2014, Orono alerted the district court to the Nygards’ refusal to comply
with the district court’s order to remove the wind turbine and supporting structures. The
district court ordered the Nygards to show cause for their failure to timely comply with
its order. Orono filed a motion asking the district court to find the Nygards in
constructive civil contempt of court for refusing to remove the turbine, and the district
court granted the motion after a hearing. The district court then ordered the Nygards to
remove the turbine and support pole within 20 days, while providing them 60 days to
remove the concrete pad and footings.
Instead of complying with the district court’s order, the Nygards requested a stay
of the contempt proceedings two months after the district court’s deadline for removing
the turbine had passed. The district court again ordered the Nygards to remove the
turbine and found them guilty of constructive contempt of court for failing to comply
with the prior orders. The district court also awarded Orono its reasonable costs and
attorney fees in bringing the contempt motion.
The Nygards again appealed, and this court affirmed the district court’s order.
City of Orono v. Nygard, No. A14-1062, 2015 WL 2467194 (Minn. App. June 1, 2015).
After the decision, Orono verified that the Nygards removed their wind turbine, but the
Nygards would not permit Orono to access their property to verify that the concrete pad
and footings were removed. Orono attempted to verify removal of the concrete pad and
footings for several months, with no success. After Orono notified the district court of
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these attempts, the district court issued another order to show cause, set a hearing date,
and required the Nygards to appear.
At the hearing, the district court found that the Nygards were continuing in willful
and intentional civil contempt and ordered appellant Jay Nygard imprisoned. The district
court ordered that Jay Nygard not be released until submission of evidence of full
compliance, which Kendall Nygard provided a few days later. The district court awarded
Orono attorney fees and costs in prosecuting this contempt action.
Orono filed an affidavit pursuant to Minn. R. Gen. Pract. 119 seeking $8,015.22 in
attorney fees, costs, and disbursements. The district court awarded Orono $6,912.40 in
attorney fees, costs, and expenses for Orono’s prosecution of the civil contempt of court
claim. This appeal follows.
D E C I S I O N
I. The district court did not err in determin ing that attorney fees constitute a loss
or injury under section 588.11.
The Nygards argue that the district court erred in its interpretation of the first clause
of Minn. Stat. § 588.11 because the statute’s plain meaning “requires that the actual damage
or injury is the cause of the contempt proceeding.” (Emphasis omitted.) We disagree.
This court reviews the construction of a statute de novo. Frost-Benco Elec. Ass’n
v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). Minn. Stat. § 588.11
allows for the recovery of attorney fees incurred from the prosecution of a person’s
contempt of court:
If any actual loss or injury to a party in an action or special
proceeding, prejudicial to the person’s right therein, is caused
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by such contempt, the court or officer, in addition to the fine or
imprisonment imposed therefor, may order the person guilty of
the contempt to pay the party aggrieved a sum of money
sufficient to indemnify the part y and satisfy the party’s costs
and expenses, including a reasonable attorney’s fee incurred in
the prosecution of such cont empt, which order, and the
acceptance of money thereunder, shall be a bar to an action for
such loss and injury.
(Emphasis added.) “The goal of statutory interpretation is to effectuate the intent of the
Legislature.” STRIB IV, LLC v. County of Hennepin, 886 N.W.2d 821, 824 (Minn. 2016)
(citing Minn. Stat. § 645.16 (2014)). “When the words of a law in their application to an
existing situation are clear and free from all ambiguity, we must give effect to the plain
meaning of the law.” Id. (quotation omitted). Neither party argues that Minn.
Stat. § 588.11 is ambiguous. Nevertheless, each party offers a different interpretation of
the statute. But that does not necessarily mean that the statute is ambiguous. “Absent
ambiguity, the terms of a contract will be given their plain and ordinary meaning and will
not be considered ambiguous solely because the parties dispute the proper interpretation
of the terms.” Knudsen v. Transp. Leasing/Contract, Inc., 672 N.W.2d 221, 223 (Minn.
App. 2003), review denied (Minn. Feb. 25, 2004). We conclude that Minn. Stat. § 588.11
is not ambiguous.
The Nygards misread the plain meaning of section 588.11. The Nygards interpret
the statutory language “[i]f any actual loss or injury to a party . . . is caused by such
contempt” to mean that the loss or injury must be the cause of the contempt. (Emphasis
added.) “Cause” means to bring about a result. See Merriam-Webster’s Collegiate
Dictionary 196 (11th ed. 2014). Accordingly, the words “caused by” mean that the
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injury or loss is brought about by the contempt. Here, Orono incurred a loss in attorney
fees caused by the Nygards’ contempt.
This reading of section 588.11 is further supported by Minnesota caselaw. See
Hanson v. Thom, 636 N.W.2d 591, 593 (Minn. App. 2001) (incurring attorney fees in
contempt proceeding constitute a loss or damages requirement under section 588.11);
Westgor v. Grimm, 381 N.W.2d 877, 880 (Minn. App. 1986) (same). Accordingly, the
district court’s determination that the attorney fees incurred by Orono is a loss or injury
caused by the Nygards’ contempt was not erroneous.
II. The district court’s indemnification award of reasonable attorney fees to
Orono was not error.
The Nygards argue that the district court may not award attorney fees to Orono
because it penalized the Nygards over $250, which is prohibited under Minn.
Stat. § 588.10 (2016). We disagree.
We review the application of a statute to particular facts de novo. Frost-Benco
Elec. Ass’n, 358 N.W.2d at 642. Under Minn. Stat. § 588.10 (2016), “if the person is
adjudged guilty of the contempt charged, the person shall be punished by a fine of not
more than $250.” In contrast, section 588.11, is an indemnification statute that seeks to
make whole an aggrieved party who incurs an injury or loss, including attorney fees,
caused by the contempt. The district court’s power to indemnify a party under section
588.11 is “in addition to the fine” of no more than $250 authorized under section 588.10.
Minn. Stat. § 588.11.
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This reading of section 588.11 is supported by the caselaw where this court has
upheld an indemnification award of attorney fees for greater than $250. See Westgor,
381 N.W.2d at 880 (affirming award of $500 in reasonable attorney fees and costs to the
aggrieved party under section 588.11); Time-Share Sys. Inc., v. Schmidt, 397 N.W.2d
438, 441 (Minn. App. 1986) (affirming award of $3,000 in reasonable attorney fees and
costs to aggrieved party under section 588.11). Therefore, a district court may award
more than $250 in attorney fees and costs as indemnification under section 588.11 and
the award is not limited by section 588.10.
An award of attorney fees under section 588.11 is appropriate when three factors
are satisfied: “First, the fees must be based on proof of actual damages. Second, the
award must not penalize the contemnor. Finally, the party receiving the fees must
actually incur the fees.” Hanson, 636 N.W.2d at 593 (citations omitted). The Nygards
only challenge the second factor.
The Nygards rely on Campbell v. Motion Picture Mach. Operators to argue that
the award by the district court was imposed on them as a penalty. 151 Minn. 238, 186
N.W. 787, (1922). In Campbell, the supreme court held that the contempt statute “does
not authorize the court to impose a penalty on [the contemnor] for the benefit of the
[aggrieved party].” Id. at 242, 186 N.W.2d at 789. There, the supreme court reversed an
award of $125 because it was imposed as a penalty “for the benefit of the plaintiff,” and
upheld a $100 attorney-fees award as an expense incurred as a result of litigating the
contempt case. Id.
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Consistent with Minnesota precedent, the district court evaluated the affidavits
submitted by Orono’s attorney and limited its award to the attorney fees Orono incurred
as a result of bringing the contempt action. Therefore, the record supports the conclusion
that the district court’s award was not a penalty and only sought to indemnify Orono for
the attorney fees it incurred. Accordingly, the district court did not err in its award of
attorney fees in the amount of $6,912.40 because the award satisfied the requirements of
section 588.11.
Affirmed.