Aquarius Holdings, LLC, 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This opinion will be unpublished and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
A17-0849

Aquarius Holdings, LLC,
Respondent,

vs.

City of Walker,
Appellant.

Filed January 16, 2018
Reversed
Kirk, Judge

Cass County District Court
File No. 11-CV-13-2043

Robert M. Wallner, FullerWallner, Bemidji, Minnesota (for respondent)

John E. Valen, Walker, Minnesota (for appellant)

Considered and decided by Kirk , Presiding Judge; Peterson, Judge; and Jesson ,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant City of Walker (the city) appeals a district court order vacating an
assessment levied against respondent Aquarius Holdings LLC’s (Aquarius) commercial
property under Minn. Stat. § 429.061, subd. 1 (2016). The district court vacated the
assessment because it found that the city failed to comply with the improvement hearing

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notice requirements under Minn. Stat. § 429.031, subd. 1(a) (2016). Because we conclude
that the district court’s finding, that the city failed to comply with the notice requi rements
of Minn. Stat. § 429.031, subd. 1(a), is clearly erroneous, we reverse for reinstatement of
the assessment.
FACTS
On January 9, 2012, the Walker City Council (the city council) passed a resolution
ordering that a public hearing on a proposed improvement to the city sewer system be held
on February 6. The city council ordered the city clerk to publish and mail notice of the
improvement hearing as required by Minn. Stat. § 429.031, subd. 1(a). Aquarius owns
commercial real estate on a street affected by the proposed improvements.
It is undisputed that the publication requirements of Minn. Stat. § 429.031, subd.
1(a), were met. On January 20, the city clerk completed, and had notarized, an affidavit of
service by mail that read:
I, [the city cler k], being first duly sworn, deposes and states
that on the 20 day of January, 2012, I delivered, for mailing, to
the United States Postal Service in the City of Walker the
Public Hearing Notice for Front Street, Sixth Street & 4th St.
to the people listed on the following attachments.

The affidavit included a handwritten notation that postage to mail the notices was $19.36.
Aquarius was listed in the attachments as an affected property owner along with the correct
mailing address. The mailing notified affected property owners of the improvement
hearing. Aquarius claims that it did not receive this notice.
On February 6, the city council held the improvement hearing and passed
resolutions adopting the proposed plan and ordering the improvements. Afte r advertising

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for bids on the project, the city council accepted a construction bid and authorized the city
clerk and the mayor to enter into a contract with the construction company. On September
9, 2013, the city council passed resolutions to assess con struction costs against benefited
property owners including Aquarius, and to schedule an October 7 public hearing on the
proposed assessment. The city clerk was ordered to publish and mail notice of the
assessment hearing as required by Minn. Stat. § 429.061, subd. 1.
It is undisputed that t he publication and mailing requirements of Minn. Stat.
§ 429.061, subd. 1, were met. On September 17, the deputy city clerk completed, and had
notarized, an affidavit of service by mail that stated that she “deposited in the United States
mail at Walker, Minnesota, copies of the attached notice of a hearing on proposed special
assessments, . . . addressed to the following persons at the addresses appearing opposite
their respective names: . . . Aquarius Holdings LLC,” at the correct mailing address.
Aquarius acknowledges that it received seven copies of this mailed notice, one for each of
the units within its commercial property.
Aquarius filed a written objection to the proposed assessment and orally objected at
the assessment hearing. The city levied the assessment against Aquarius’s property.
Aquarius appealed the assessment to the district court pursuant to Minn. Stat. § 429.081
(2016), arguing that the city failed to comply with the notice requirements of Minn . Stat.
§ 429.031, subd. 1(a), and thereby lacked jurisdiction to levy an assessment against
Aquarius. Aquarius requested that the district court vacate the assessment.
A trial was held on January 25, 2017. Aquarius’s owner, Jason Pederson, testified
and verified that Aquarius’s mailing address is the address listed in both affidavits of

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mailing. Mr. Pederson testified that he did not receive notice of the improvement hearing,
but that he did receive notice of the assessment hearing. He also testified that only he and
his wife have access to Aquarius’s P.O. Box and that he is not aware of any problems with
receiving mail at the P.O. Box.
The city clerk also testified. She identified the affidavit of service by mail that she
completed for the improvement hearing notices, and stated:
The first page is an affidavit of service by mail where I signed
that I was taking public hearing notices for Front Street, Sixth
Street and Fourth Street, as this project when it st arted was
much larger than just the Sixth Street, to the mail. This was
notarized by then staff member, [S.B.]. And attached to that is
a list of all of the addresses that were notified.

Other than Aquarius, there is no evidence in the record that any property owner
listed in the attachments to the affidavit of service for the improvement hearing failed to
receive the improvement hearing notice. Aquarius presented evidence that there were two
affected property owners who did not receive mailed notice of the improvement hearing,
but neither of them was listed in the attachments to the related affidavit of service. The
record shows that the city did not mail notice to the first affected property owner because
the property had recently been sold and the owner’s information was not updated with Cass
County. The city did not mail notice to the second affected property owner because the
city did not believe his property would be affected by the project when the notices were
mailed. Aquarius also presented evidence that there were errors in the assessment hearing
notice, but there is no evidence that any property owner listed in the affidavit of service by
mail for the assessment notices failed to receive the assessment hearing notice.

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On February 23, the district court filed an order vacating the assessment against
Aquarius. The court concluded that “the [c]ity failed to establish that notice of the
[improvement] hearing was mailed to Aquarius as required by Minn. Stat. § 429.031, subd.
1(a),” and that “the [c]ity has no jurisdiction to assess Aquarius’[s] property.” On March
27, the city filed a motion for amended findings of fact and an amended judgment. The
court did not amend its findings or judgment, but issued another order and memorandum
emphasizing the difference between the “past-progressive tense”1 the city clerk used when
she testified about the affidavit of mailing for the improvement hearing notices, and the
“past-perfect tense”2 used in the affidavit itself. The court concluded that because the city
clerk did not speak in the past-perfect tense, her testimony indicated that she “prepared and
executed the affidavit of mailing before actually mailing the letters . . . .” The court found
that the city clerk’s affidavit of mailing was therefore unreliable, and that the city failed to
establish that the notices for the improvement hearing were mailed.
D E C I S I O N
Aquarius argued, and the district court found, that because the city failed to comply
with the mailed -notice requirements for the improvement hearing under Minn. Stat.
§ 429.031, subd. 1(a), the city could not levy an assessment against Aquarius’s property.
Minn. Stat. § 429.031, subd. 1(a), provides in relevant part that:

1 Use of the past tense “denotes an act, state, or condition that occurred or existed at some
explicit or implicit point in the past . . . .” The Chicago Manual of Style, § 5.130 (Univ. of
Chicago Press ed., 17th ed. 2017). Use of the past-progressive tense denotes an act, state,
or condition that progresses or continues through the past. See id. at § 5.135.
2 The past-perfect tense “refers to an act, state, or condition that was completed before
another specified or implicit past time or past action.” Id. at § 5.133.

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Before the municipality awards a contract for an improvement
or orders it made by day labor . . . the council shall hold a public
hearing on the proposed improvement[.] . . . Not less than ten
days before the hearing, notice of the hearing must also be
mailed to the owner of each parcel within the area proposed
to be assessed[.]

Id. (emphasis added).
The parties agree, and the plain language of Minn. Stat. § 429.031, subd. 1(a),
required, the city to mail notice of the improvement hearing to Aquarius, an affected
property owner.3 The statute’s plain languag e also does not require actual receipt of the
notices by affected property owners.
Here, the city presented an affidavit of service by mail to establish that it mailed an
improvement hearing notice to Aquarius, but Aquarius asserts that it was able to overcome
“the presumption of mailing” created by the affidavit by presenting credible evidence that
it did not actually receive the notice, thereby invalidating the later-imposed assessment.
But the issue here is not whether Aquarius actually received the i mprovement hearing

3 The language of Minn. Stat. § 429.031, subd. 1(a), was modified in 1961, from what was
previously subd. 1(c), to require mailed notice. 1961 Minn. Laws ch. 525, § 1, at 910 -11.
In Meadowbrook Manor, Inc. v. City of St. Louis Park, a decision issued in 1960, notice of
the improvement and assessment hearings was published, but the property owner did not
see the notices, and no notices were mailed to the property owner. 258 Minn. 266, 270,
104 N.W.2d 540, 543 -44 (1960). The Meadowbrook court concluded that the property
owner did not actually receive notice and was deprived of “an opportunity to question the
validity of the amount of the assessment” levied against it.” Id. at 270, 104 N.W.2d at 543.
In concluding that mailed notice to the property owner was necessary before an assessment
could be levied, the Meadowbrook court concluded that, mailed notice, though not
necessarily “effective in reaching every person who has an interest in propert y, . . . is
‘reasonably calculated’ to reach the party to be informed,” and is sufficient to meet the due-
process requirements of Minn. Stat. §§ 429.031, subd. 1(a), .061, subd. 1. Id. at 273, 104
N.W.2d at 545.

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notice, it is whether the district court’s finding, that the city did not mail notice of the
improvement hearing to Aquarius, is clearly erroneous. If the city mailed the improvement
hearing notice to Aquarius, then the city complied wi th Minn. Stat. § 429.031, subd. 1(a),
and Aquarius was afforded the necessary due process. See Meadowbrook Manor, Inc. v.
City of St. Louis Park, 258 Minn. 266, 273, 104 N.W.2d 540, 545 (1960) (holding that due
process requires mailed notice of the improvement and assessment hearings to affected
property owners before an assessment can be levied against those property owners). 4
“Findings of fact, whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due r egard shall be given to the opportunity of the
[district] court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01. “It is not
the province of this court to reconcile conflicting evidence.” Fletcher v. St. Paul Pioneer
Press, 589 N.W.2d 96, 101 (Minn. 1999). We give great deference to a district court’s
findings of fact on appeal, and will not set them aside unless they are clearly erroneous.
Id.
Here, the district court found that the affidavit, “signed and dated
contemporaneously with the mailing of the [improvement hearing] notices, [was] sufficient
to create a presumption that the [c]ity provided proper notice by mail,” but also found that

4 Because an assessment is akin to a tax, a “property owner is entitled to a reasonable notice
and hearing before his property is subjected to the lien of a special assessment for a local
improvement,” so the property owner “ha[s] an opportunity to question the validity of the
amount of the asses sment.” Meadowbrook, 258 Minn. at 269 -70, 104 N.W.2d at 543.
Here, there is no question that Aquarius was afforded an opportunity to question the
assessment at the assessment hearing, and that as such, notice of the improvement hearing
was not necessary to facilitate that opportunity.

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the notices were not mailed, in part because it found that the city clerk’s affidavit of service
by mail was completed before the improvement hearing notices were mailed. These
findings are inconsistent, and we conclude that the district court’s finding that the
improvement hearing notices were not mailed is clearly erroneous.
In reaching its e rroneous finding of fact, the district court reasoned that because
“some property owners were not given notice of the hearing without reasonable
explanation, . . . it [was] more likely that others, like Aquarius, were not given notice of
the hearing.” But the record indicates that the other two property owners who did not
receive the mailed improvement hearing notice were omitted from the city’s mailing
because they were not believed to be affected property owners. It is unclear to this court
how this omission, acknowledged by the city, relates to whether the property owners, such
as Aquarius, who were listed in the attachments to the affidavit of service by mail, were
mailed their notices.
The district court also reasoned that because the assessment hearing notices, which
were mailed by the city and received by Aquarius over a year and a half after the
improvement hearing notices were mailed, included clerical and administrative errors, it
was “more likely . . . that other mistakes occurred.” It is uncl ear how the district court
determined that errors in the assessment hearing notice, which did not affect Mr.
Pederson’s ability to attend the assessment hearing on behalf of Aquarius, invalidated the
affidavit of mailing for the improvement hearing notices. This determination is particularly
problematic because the record is devoid of evidence that any of the improvement hearing
notices were returned to the city, that Aquarius’s address was listed incorrectly, or that any

9
other property owners listed in th e affidavit of service by mail’s attachments failed to
receive the mailed improvement hearing notice.
The district court also reasoned that, because the city clerk testified in the past -
progressive tense rather than the past-perfect tense about completing the affidavit of service
for the improvement hearing notices , she “prepared and executed the affidavit of mailing
before actually mailing the letters.” This led to the court’s conclusion that the notices were
not mailed. The past-progressive tense is used to describe actions that were progressing in
the past. It allows for an action to either have reached its conclusion in the past, or for the
action to be ongoing into the present. 5 When the city clerk testified that she “was tak ing”
notices “to the mail,” her use of the past -progressive tense indicated either that her action
of taking was completed when she arrived at the mail, or that she was , at the time of her
testimony, still en route to the mail with the notices five years l ater. Only one of these
interpretations is sound on this record; the city clerk completed the action of taking the
notices to the mail.
Furthermore, the form of the past tense that was used in testimony given five years
after the city clerk completed th e affidavit of service by mail does not itself rebut the
presumption created by the properly executed affidavit. If it did, our legal system could
not function. This record contains an affidavit of service by mail, signed and notarized,
and no evidence t o suggest that the affidavit or its attachments contain false information.

5 For example, the phrase, “I was caring for my grandmother last month,” could indicate
either that the speaker cared for his grandmother last month and is no longer pro viding
care, or that he cared for his grandmother last month and is continuing to provide care.

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Allowing the affidavit of service to be disregarded on this record, which is devoid of
evidence to support the district court’s finding that the improvement hearing notices were
never mailed, would essentially require that all improvement hearing notices, and all
notices required by similar statutory language, be personally served. This is not what the
plain language of Minn. Stat. § 429.031, subd. 1(a), or due process, requires, and imposing
such a requirement would have larger unintended impacts on the legal process in general.
Because this record shows that the city complied with the mailed -hearing notice
requirement for improvement hearing notices under Minn. Stat. § 429.031, s ubd. 1(a), the
district court’s contrary finding of fact is clearly erroneous. We therefore reverse the
judgment vacating the assessment levied against Aquarius’s property.
Reversed.