Nell Mathews, et al. Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0858

Nell Mathews, et al.
Appellants,

vs.

City of the Village of Minnetonka Beach,
Respondent,

Vanessa Abraham, et al.,
Respondents.

Filed April 29, 2019
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CV-16-18370

Patrick B. Steinhoff, Bruce D. M alkerson, Malkerson Gunn Martin LLP, Minneapolis,
Minnesota (for appellants Nell Mathews, et al.)

Justin L. Templin, George C. Ho ff, Hoff Barry, P.A., Eden Prair ie, Minnesota (for
respondent City of the Village of Minnetonka Beach)

William H. Henney, Minnetonka, Minnesota (for respondents Vanessa Abraham, et al.)

Considered and decided by Reyes, Presiding Judge; Hooten, Judg e; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellants challenge the district court’s grant of summary judgment to respondents
City of the Village of Minnetonka Beach (the city), Vanessa Abr aham, and Santiago
Abraham and the district court’s denial of their own motion for partial summary judgment
regarding claims surrounding the city’s grant of a permit to co nstruct a patio. Appellants
argue that the district court erred in (1) dismissing appellants’ claim of slander to title; (2)
concluding that the city was entitled to reimbursement of its planning fees; (3) concluding
that the city complied with statutory requirements in determini ng appellants’
administrative appeal; (4) conclu ding that appellants’ administ rative appeal was not
automatically granted pursuant to Minn. Stat. § 15.99 (2018); (5) concluding that the city’s
denial of appellants’ administrative appeal was not arbitrary; (6) granting the city’s motion
for summary judgment on appellants’ open-meeting-law claim; and (7) denying appellants’
requests for further discovery. We affirm the district court e xcept with regard to the
question of whether the city comp lied with the statutory requir ements in determining
appellants’ administrative appeal. With regard to that issue, we reverse and remand to the
city’s board of adjustments and appeals.
FACTS
Appellants Nell Mathews and Max Hecker own and reside in a sin gle-family home
located in the City of the Village of Minnetonka Beach. Appellants’ claims originate with
an improvement project (the project) undertaken by the previous o w n e r s ( t h e p r e v i o u s

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owners) of an adjacent pr operty (the property). 1 In April 2015, a wooden deck was
removed from the property without a permit or approval from the city. In August 2015,
the previous owners began work to install a stone patio in the area where the wooden deck
had been. The city initially told the previous owners’ contractors that they did not need a
permit to install the stone patio. After appellants objected t o the project, Ben Gozola, the
city’s planning and zoning administrator, 2 informed appellants that the previous owners
would apply for a permit for the project. Gozola told appellan ts that, because the project
did not qualify as a “structure,” it did not need to meet setba ck requirements and that the
project satisfied requirements regarding the amount of impervious-surface coverage on the
property. Gozola told appellants that he would issue a grading permit for the project and
informed them that they could s ubmit an administrative appeal t o the city’s board of
adjustments and appeals (the board) if they disagreed with his decision.
In October 2015, appellants file d an administrative appeal of Gozola’s decision to
approve a permit for the project. Appellants paid a $250 appli cation fee and signed a
document stating:
Additional Costs: The applican t requests processing of this
application and agrees to pay to the City of Minnetonka Beach
within Thirty (30) days after billing statement mailed or
delivered, the actual costs incurred by the City for engineering,
planning and zoning, legal and inspection expenses reasonably
and necessarily required by the City for the processing of the
application.

1 The current owners of the prope rty, and named defendants, Vane ssa and Santiago
Abraham purchased the property from the previous owners after the project was completed.
2 Gozola is employed by a private firm and serves the city under a consulting contract.

4
Appellants explained their position that the patio and accompan ying retaining wall
constituted a structure, necessitating that it meet setback requirements, and that the project
improperly expanded and increased the nonconforming impervious- surface coverage on
the lot. Appellants requested that the board make a determinat ion that the project could
not proceed unless it received variances from the applicable provisions of the city’s zoning
ordinance.
On November 9, 2015, the board held a public meeting to consid er appellants’
administrative appeal. Gozola presented a report explaining the basis for his conclusions
that the patio and retaining walls were not structures and that the project did not increase
the impervious-surface coverage. Appellants also submitted mat erials in advance of the
hearing and addressed the board during the hearing. The board voted to deny the appeal
by a vote of two-to-one with one abstention. Gozola subsequent l y i s s u e d a p e r m i t ,
allowing the previous owners to proceed with building the patio.
At some point following the vote, appellants came to believe t hat Gozola withheld
pertinent informatio n from the board. Appellants petitioned th e city to reopen their
administrative appeal. The city’s attorney responded to appell ants’ request, stating that
the request to reopen the appeal was “unusual, if not unprecede nted,” but that the board
would schedule a meeting to consider the request.
On December 19, 2015, appellants also filed suit in district co urt, requesting
injunctive relief and asserting that they suffered more than $5 0,000 in damages.
Appellants claimed that the board’s decision was legally defect ive and that, because the
board failed to issue a proper decision, their administrative a ppeal should be deemed

5
granted. Appellants later filed several amended complaints adding additional claims, and
the city filed a counterclaim requesting reimbursement for the costs that it incurred
associated with appellants’ administrative appeal.
On January 11, 2016, the board met in a closed-door meeting wi th their litigation
attorney and Gozola. Following the closed-door meeting, the board held an open meeting
to discuss whether or not to reopen the appeal. The mayor explained that the board would
not be taking any comments from the public, but he opened the f loor to members of the
board. Two board members noted the difficulty of the situation for everyone involved,
but nobody addressed appellants’ arguments for reopening their administrative appeal.
The board then voted to deny the request to reopen the appeal by a three-to-one vote.
At 5:00 a.m. the next morning, one of the board members sent the mayor an email
stating that he felt the decision may have been influenced by t he closed-door meeting.
The board member wrote that, “In the closed session we discusse d the merits of the City
position in a lawsuit, which have to remain private due to liti gation” but that the vote
“seemed to be on the merits of a lawsuit,” rather than the meri ts of the request to reopen
the administrative appeal. Appe llants later amended their comp laint to add a claim that
the city violated the open-meeting law based on this closed-door meeting.
Because Gozola works for the c ity under a consulting contract, the city had to pay
him for the additional time that he worked on appellants’ administrative appeal. The city
sent appellants invoices totaling $4,200.85 for Gozola’s time. That amount was later
reduced to $3,530.35. Appellants did not pay the fees and argued that they should not be

6
charged any fees for Gozola’s work. The city council discussed the issue at meetings held
in September, October, and November of 2016.
On December 5, 2016, the city council held a special meeting an d addressed
appellants’ unpaid debt for the expenses associated with their administrative appeal. Two
council members voted in favor of certifying appellants’ debt t o the county auditor for
collection with their property taxes, two council members voted against certifying the
debt, and the mayor broke the tie by voting in favor of certifying the debt.
On December 19, 2016, appellants appealed the certification of the debt to their
property taxes to this court. In their appeal, appellants argued that the city neither had the
right to charge them any fees nor the authority to certify the debt to their property taxes.
The city conceded that it did not have the statutory authority to certify the debt to
appellants’ property taxes for collection, but maintained that it did have the right to charge
the fees and collect them by other means.
On May 8, 2017, the city passed a resolution to remove the cert ification of the
charges to appellants’ property taxes. On May 9, this court he ard oral arguments on the
issues. This court later issued a published opinion stating th at the city did not have the
authority to certify the debt to appellants’ property taxes for collection. Mathews v. City
of Vill. of Minnetonka Beach , 899 N.W.2d 881, 883 (Minn. App. 2017). This court did
not reach the issue of whether the city was entitled to charge the fees and collect them by
some other mechanism. Id.
After this court’s decision, the district court heard competing discovery motions
and denied appellants’ motion to compel further discovery. The district court then

7
addressed competing summary-judgment motions. The district cou rt granted the city’s
motion for summary judgment and denied appellants’ motion for p artial summary
judgment. This appeal follows.
D E C I S I O N
On appeal, appellants argue that the district court erred in (1) dismissing appellants’
claim of slander to title; (2) c oncluding that the city was ent itled to reimbursement of its
planning fees; (3) concluding tha t the city complied with statu tory requirements in
determining appellants’ administr ative appeal; (4) concluding t hat appellants’
administrative appeal was not automatically granted pursuant to Minn. Stat § 15.99;
(5) concluding that the city’s denial of appellants’ administrative appeal was not arbitrary;
(6) granting the city’s motion for summary judgment on appellan ts’ open-meeting-law
claim; and (7) denying appellants’ requests for further discove ry. We address each issue
in turn after discussing the applicable standard of review.3
I. Standard of Review.

A district court “shall grant summary judgment if the movant shows that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law.” Minn. R. Civ. P. 56.01. A genuine issue of material fac t exists if a rational trier of
fact, considering the record as a whole, could find for the non -moving party. Frieler v.
Carlson Mktg. Grp., Inc. , 751 N.W.2d 558, 564 (Minn. 2008). In opposing summary

3 Because we reverse the board’s decision due to its failure to follow statutory procedural
requirements, we do not address appellants’ separate argument t hat we should reverse
because the board’s denial of appellants’ administrative appeal was arbitrary.

8
judgment, “general assertions” ar e not enough to create a genui ne issue of material fact.
Nicollet Restoration, Inc. v. City of St. Paul , 533 N.W.2d 845, 848 (Minn. 1995). To
successfully oppose a motion for summary judgment, appellants “ must extract specific,
admissible facts from the voluminous record and particularize them” for the district court.
Kletschka v. Abbott-Northwestern Hosp., Inc. , 417 N.W.2d 752, 754 (Minn. App. 1988),
review denied (Minn. Mar. 30, 1988). This c ourt applies a de novo standard o f review to
a district court’s legal conclusions on summary judgment and vi ews the evidence in the
light most favorable to the non-moving party. RAM Mut. Ins. Co. v. Rohde , 820 N.W.2d
1, 6 (Minn. 2012). This court will affirm summary judgment if it can be sustained on any
ground. Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).
II. The city has statutory immunity with respect to appellants’ slander-of-title
claim.

Appellants brought a slander-of-title claim alleging that the c ity slandered the title
to their property by improperly certifying their debt to their property taxes for collection.
The district court determined tha t the city has statutory immun ity with respect to
appellants’ slander-of-title claim under Minn. Stat. § 466.03, subd. 6 (2018). On appeal,
appellants argue that the district court erred in concluding th at the city has statutory
immunity because its decision to certify the debt was not a policy-level decision. The city
counters that the district court properly determined that the c ity’s decision to certify the
debt was a policy-level decision.
A city is immune from liability for “[a]ny claim based upon the performance or the
failure to exercise or perform a discretionary function or duty, whether or not the discretion

9
i s a b u s e d . ” M i n n . S t a t . § 4 6 6 . 0 3 , s u b d . 6 . “ G o v e r n m e n t c o n d u ct is considered
discretionary and thus protected b y statutory immunity when the state produces evidence
that the conduct was of a policy-making nature.” Schroeder v. St. Louis County , 708
N.W.2d 497, 504 (Minn. 2006). A city is entitled to statutory immunity “when there has
been a planning-level decision; that is, social, political, or economic considerations have
been evaluated and weighed as part of the decision-making proce ss.” Id. But it is not
entitled to statutory immunity for “operational-level decisions, those involving day-to-day
operations of government, the application of scientific and technical skills, or the exercise
of professional judgment.” Id. “There is a ‘gray area’ dividing protected and unprotected
decisions, but the underlying concern is whether the conduct at issue involves the balancing
of public policy considerations in the formulation of policy.” Conlin v. City of St. Paul ,
605 N.W.2d 396, 400 (Minn. 2000). “Statutory immunity exists to prevent the courts from
conducting an after-the-fact review which second-guesses certain policy-making activities
that are legislative or executive in nature.” Watson by Hanson v. Metro. Transit Comm’n,
553 N.W.2d 406, 412 (Minn. 1996) (quotation omitted). “The application of immunity is
a question of law we review de novo .” Vassallo ex rel. Brown v. Majeski , 842 N.W.2d
456, 462 (Minn. 2014).
In determining whether statuto ry immunity applies, courts first identify the
challenged governmental conduct. Schroeder, 708 N.W.2d at 504. The conduct at issue
here is the certification of the debt to appellants’ property t axes for collection. The next
question is whether certifying the debt constitutes a planning- level decision or an
operational-level decision. Id.

10
In this case, the City Code authorized city staff to file a lie n upon a property in the
event that costs associated w ith a zoning application or appeal were not paid within a
reasonable time. City of the Village of Minnetonka Beach City Code (City Code) § 227(4)
(2015).4 The city council discussed the fees in question during at least three different city
council meetings in the fall of 2016. During a city council meeting in November, a council
member made a motion to delay the assessment of the fees until the ongoing litigation was
settled or mediation took place. The motion failed, and in December, the city went ahead
with collection of the fees. The city chose to do so by certif ying the debt to appellants’
property taxes rather than filing a lien.
The undisputed facts demonstrate that the city made a policy-le vel decision to
certify the debt to appellants’ property taxes in order to collect fees associated with zoning
decisions. The city council debated whether or not the city sh ould certify the debt to
appellants’ property taxes. The city council considered the ongoing litigation between the
parties and the effect that certifying the debt might have on t he litigation and its potential
economic costs. The city council ultimately decided to certify the debt rather than filing a
lien as provided by the city’s ordinance.5
The city council’s decision to certify appellants’ debt to thei r property taxes took
into consideration the social and economic issues arising out of applications for and appeals

4 We note that the city has amended and recodified the City Code since appellants filed
their administrative appeal. We cite the version of the City Code in effect at that time.
5 We note that the city council also charged the previous owners fees in relation to the city’s
review of the project. The previous owners did not pay the fee s and the council voted
unanimously to certify the previous owners’ debt to their property taxes for collection.

11
of zoning permits and litigation with city residents, making it a policy-level decision.
Schroeder, 708 N.W.2d at 504. Because the decision to certify the debt was a policy-level
decision, the city is entitled to statutory immunity with respect to claims arising out of that
decision. Id. Although the city council abused its discretion in certifying the debt, the fact
that the city council abused its discretion does not negate its immunity. Minn. Stat. §
466.03, subd. 6.
Appellants argue that statutory immunity does not apply if the city’s conduct was
willfully and maliciously wrong. Appellants’ argument confuses statutory immunity with
official immunity. The Minnesota Supreme Court has explained t hat statutory immunity
applies “even where the discretion of the governmental entity i s abused” and thus differs
from “official immunity, which st rips the potential immunity fr om those who act
maliciously and intentionally.” Janklow v. Minn. Bd. of Exam’rs for Nursing Home
Adm’rs, 552 N.W.2d 711, 717-18 (Minn. 1996). Accordingly, the city h as statutory
immunity from appellants’ slan der-of-title claim, and we need n ot address whether the
city’s conduct was malicious.6
III. The district court did not err in concluding that the city is e ntitled to
reimbursement of costs associated with appellants’ administrative appeal.

Appellants argue that the city is not entitled to reimbursement of the costs associated
with their administrative appeal because reimbursement of those costs is not authorized by
Minn. Stat. § 462.353, subd. 4 (2018), and the parties did not enter into a valid contract

6 Because we conclude that the c ity has statutory immunity from this claim, we do not
reach the issue of whether the city is also entitled to summary judgment on the merits of
the slander-of-title claim.

12
allowing the city to recover the costs. The city counters that it had authority to collect the
fees under Minn. Stat. § 462.357, subd. 6 (2018), and City Code § 227(1), (2) (2015).
To interpret a statute or an ordinance, we first assess whether the “language, on its
face, is clear or ambiguous.” Am. Family Ins. Grp. v. Schroedl , 616 N.W.2d 273, 277
(Minn. 2000). If the language is “clear and free from all ambi guity,” the plain meaning
controls and is not “disregarded under the pretext of pursuing the spirit.” Minn.
Stat. § 645.16 (2018). But if a s t a t u t e o r o r d i n a n c e h a s m o r e than one reasonable
interpretation, it is ambiguous and we apply canons of statutory construction to determine
its meaning. State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). Each statute or ordinance
is to be “construed, if possible, to give effect to all its pro visions.” Minn. Stat. § 645.16
(referring to statutes). Statutory construction is a legal question, which we review de novo.
Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
Appellants argue that Minn. Stat. § 462.353, subd. 4(a), which authorizes
municipalities to recover costs that they incur reviewing appli cations for a permit as long
as the costs are reasonable and have a nexus to the actual cost of the service, does not apply
to their administrative appeal. But a separate provision provi des that “[a]ppeals to the
board of appeals and adjustments may be taken by any affected p erson upon compliance
with any reasonable conditions imposed by the zoning ordinance.” Minn. Stat. § 462.357,
subd. 6. The city’s zoning ordinance in effect at the time pro vided that individuals filing
an administrative appeal must consent to pay the costs and expenses incurred in processing
that appeal, including “City Staff time.” City Code § 227(2).

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The city had to pay for the time that Gozola spent reviewing ap pellants’
administrative appeal. The condition that appellants repay the costs that the city actually
incurred in considering their administrative appeal is reasonab l e a n d f a i r u n d e r t h e
circumstances. See Black’s Law Dictionary 1456 (10th ed. 2014) (defining reasonable as
“[f]air, proper, or moderate under the circumstances; sensible”). We cannot conclude that
it is unreasonable or unfair to require appellants to reimburse the city for the costs that the
city actually incurred in considering their administrative appe al. We note that the form
requesting an appeal expressly and clearly stated that appellants would be required to pay
the costs associated with their administrative appeal, and appellants agreed to that condition
when they signed the form.
We conclude that the requirement that appellants reimburse the city for the costs it
incurred in considering the administrative appeal was a reasona ble condition imposed by
the city’s zoning ordinance. Acc ordingly, even assuming that a ppellants are correct that
Minn. Stat. § 462.353, subd. 4(a), does not independently autho rize the city to collect the
costs associated with appellants’ administrative appeal, the city is authorized to impose the
costs as a reasonable condition under Minn. Stat. § 462.357, subd. 6.7
IV. The board failed to follow statutory procedure.

Appellants argue that the district court erred in concluding th at the board followed
the procedures required by Minn. Stat. § 462.354, subd. 2 (2018), and erred in concluding

7 Because we conclude that the city is authorized to reimburseme nt of its costs by statute,
we do not address whether the city would also be entitled to re imbursement of its costs
under a contract theory as found by the district court. See Doe, 817 N.W.2d at 163 (noting
that appellate courts will affirm summary judgment if it can be sustained on any ground).

14
that Minn. Stat. § 462.357, subd. 6(1), obviated the need for t he board to follow those
procedures. The city argues that it did not have to satisfy th e requirements of Minn.
Stat. § 462.354, subd. 2, because Minn. Stat. § 462.357, subd. 6(1), authorizes the board’s
actions. We agree with appellants that the board was required to follow the procedures
outlined under Minn. Stat. § 462.354, subd. 2, and that it failed to do so.
Minn. Stat. § 462.354, subd. 2, provides:
In any municipality in which the planning agency does not act
as the board of adjustments and appeals, the board shall make
no decision on an appeal or petition until the planning agency,
if there is one, or a representative authorized by it has had
reasonable opportunity, not to exceed 60 days, to review and
report to the board of adjustments and appeals upon the appeal
or petition.

The city’s planning commission acts as its planning agency, but the city council acts as the
board of adjustments and appeals. See City Code §§ 225, 903 (2015) (establishing the
planning commission and the board of adjustments and appeals). The plain meaning of the
statute requires that the planning commission, or a representat ive authorized by the
planning commission, have an opportunity to review and report t o the board before the
board makes its decision on an administrative appeal.
The district court concluded that the city complied with this r equirement because
Gozola, as the city’s planning and zoning administrator, provid ed a report to the board.
But Gozola was not authorized by the planning commission to rep ort to the board on
appellants’ administrative app eal. It is undisputed that neith er the planning commission
nor any representative authorized by it was given an opportunit y to review the

15
administrative appeal and report to the board. Accordingly, th e district court erred in
concluding that the city met the requirements of Minn. Stat. § 462.354, subd. 2.
The city argues that it was not required to satisfy the require ments of Minn.
Stat. § 462.354, subd. 2, because Minn. Stat. § 462.357, subd. 6(1), authorizes the board of
adjustments and appeals “[t]o hear and decide appeals where it is alleged that there is an
error in any order, requirement, decision, or determination mad e by an administrative
officer in the enforcement of the zoning ordinance.” But Minn. Stat. § 462.357, subd. 6(1),
does not conflict with or supersede Minn. Stat. § 462.354, subd . 2. Rather, Minn.
Stat. § 462.357, subd. 6(1), de tails the situations under which the board may hear and
decide an appeal. Minn. Stat. § 462.354, subd. 2, which specif ically references Minn.
Stat. § 462.357, subd. 6(1), requires that the planning agency or its representative be given
the opportunity to review an ap peal and report back before the board makes its decision.
“[A] particular provision of a statute cannot be read out of co ntext but must be taken
together with other related provi sions to determine its meaning .” Kollodge v. F. & L.
Appliances, Inc., 80 N.W.2d 62, 64 (Minn. 1956).
Reading the statutes together shows that the board of adjustments and appeals must
satisfy both the requirement of M inn. Stat. § 462.357, subd. 6( 1), that the administrative
appeal involve an alleged error made by an administrative officer in the enforcement of a
zoning ordinance, and the requirement of Minn. Stat. § 462.354, subd. 2, that the planning
agency or its representative be g iven an opportunity to review the issue and report to the
board before it makes its decision. Because the board made its decision without giving the

16
city’s planning agency or its rep resentative an opportunity to review the issue and report
back, the board failed to comply with the statutory procedural requirements.
V. Appellants’ administrative appeal is not automatically approved pursuant
to Minn. Stat. § 15.99.

Appellants argue that because the city failed to comply with Minn. Stat. § 462.354,
subd. 2, the city’s decision is void and their administrative a ppeal must be automatically
granted pursuant to Minn. Stat. § 15.99, subd. 2. Appellants further contend that, because
their administrative appeal should be automatically granted, th e permit allowing the
previous owners to build the patio was improperly granted, and the patio must now be
removed. The city argues that Minn. Stat. § 15.99 does not app ly to these circumstances
and that remand is the proper remedy for a failure to follow the procedural requirements of
Minn. Stat. § 462.354, subd. 2.
Minn. Stat. § 15.99, subd. 2(a), provides that “an agency must approve or deny
within 60 days a written request relating to zoning. . . . Fai lure of an agency to deny a
request within 60 days is approval of the request.” The statut e defines a “request” as a
“written application related to z oning, septic systems, watersh ed district review, soil and
water conservation district review, or the expansion of the metropolitan urban service area,
for a permit, license, or other governmental approval of an action.” Minn. Stat. § 15.99,
subd. 1(c) (emphasis added). Appellants argue that their administrative appeal constitutes
a “request” relating to zoning within the meaning of the statut e. Appellants further argue
that, because the city’s denial of their administrative appeal is void, the city has in effect

17
failed to deny their request within 60 days and their request i s thereby automatically
approved under Minn. Stat. § 15.99.
This court has held that an administrative appeal from an adverse decision by a city
is not a “request” for purposes of Minn. Stat. § 15.99. Moreno v. City of Minneapolis ,
676 N.W.2d 1, 6 (Minn. App. 2004). We explained that “[a]n app eal seeks to reverse or
overturn the approval of the request; it is not in itself a req uest for a permit, license, or
approval.” Id. Accordingly, Minn. Stat. § 15.99 does not apply to appellants’
administrative appeal, and thei r administrative appeal is not g ranted pursuant to Minn.
Stat. § 15.99. Because the city acknowledges that a failure to follow statutory requirements
of Minn. Stat. § 462.354, subd. 2, necessitates remand, we reverse the board’s decision and
remand the matter to the board to make a decision after receiving input from the planning
commission in compliance with the statutory requirements.
VI. The district court did not err in granting the city summary jud gment on
appellants’ open-meeting-law claim.

Appellants argue that the district court erred in granting the city summary judgment
on their open-meeting-law claim be cause issues of material fact exist regarding whether
the board discussed non-legal issues during its closed-door litigation-strategy meeting. The
city counters that it properly held a closed-door meeting to di scuss confidential litigation
strategies.
Minn. Stat. § 13D.01, subd. 1(b)(4) (2018), provides that all m eetings of the
governing body of a home rule charter city must be open to the p u b l i c . B u t “ [ t ] h e
Minnesota Supreme Court recognized that the invocation of the a ttorney-client privilege

18
may, in the proper circumstance s, constitute an exception to th e open-meeting law.”
Brainerd Daily Dispatch v. Dehen , 693 N.W.2d 435, 439 (Minn. App. 2005). In
determining whether attorney-client privilege constitutes an exception to the open-meeting
law, we must “balance the purpos es served by the attorney-clien t privilege against those
served by the Open Meeting Law.” Prior Lake Am. v. Mader, 642 N.W.2d 729, 731 (Minn.
2002). “The exception applies when this balancing dictates the need for absolute
confidentiality.” Id. There is no bright-line rule reg arding attorney-client privilege as it
relates to the open-meeting law, “but instead the exception mus t be addressed on a
case-by-case determination.” Brainerd Daily Dispatch , 693 N.W.2d at 439 (quotation
omitted). “When meetings are pr operly closed under the attorne y-client-privilege
exception, the public is denied access only to the legal advice that the attorney gives the
city council regarding litigation strategy and there is to be no discussion or decisions about
other city business.” Id. at 442.
The Minnesota Supreme Court held that a district court improper ly granted
summary judgment in favor of a city on an open-meeting-law claim when the city council
met in a closed-door meeting with an attorney before deciding w hether to require an
environmental assessment worksheet (EAW). Prior Lake Am., 642 N.W.2d at 739-42. The
supreme court noted that an admin istrative rule established the factors to consider before
deciding whether to require an EAW and that threat of litigatio n was not one of those
factors. Id. at 739. As such, the supreme court concluded that the city “arguably inserted
an additional, and non-public, factor into its EAW decision.” Id.

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This court distinguished the Prior Lake American case in Brainerd Daily Dispatch,
affirming summary judgment for Br ainerd against an open-meeting-law claim. Brainerd
Daily Dispatch, 693 N.W.2d at 444. In that case, Brainerd denied an organization’s request
to march in a parade. Id. at 438. After the parade, the Minnesota Civil Liberties Union
agreed to look into whether Brainerd’s decision violated the First Amendment and made a
data-practices request relating to past parade permits and other data. Id. Brainerd held an
open city council meeting during which its attorney recommended that the council meet
with him in a closed-door meeting. Id.
The attorney noted that a closed -door meeting was necessary to discuss defense
strategy and that nothing was pending before the city council r egarding its previous
decision as to the parade. Id. at 441. We stated that the attorney-client privilege exception
to the open-meeting law “is to be employed or invoked cautiously and seldom in situations
other than in relation to threat ened or pending litigation.” Id. at 440 (emphasis omitted)
(quotation omitted). We noted that although litigation had not yet started, litigation was
seriously threatened. Id. at 440-41. We also considered the affidavit from Brainerd’s
attorney outlining the need for a closed-door meeting to provide confidential discussion of
litigation strategy. Id. at 441. No such affidavit was provided in the Prior Lake American
case. Brainerd Daily Dispatch, 693 N.W.2d at 441.
In this case, the board had a need to discuss pending litigatio n with its attorney.
Appellants’ suit against the city was pending at the time that the city took up appellants’
request for reconsideration, and the city’s attorney provided a n affidavit stating that he
requested the closed-door meeti ng to discuss litigation strateg y. The attorney’s affidavit

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further stated that the purpose o f the meeting was to discuss h ow reopening appellants’
administrative appeal might imp act the ongoing litigation and t he positive and negative
ramifications of the board’s var ious litigation options. We co nclude that the purposes of
the attorney-client privilege were legitimately served here.
Next, we must balance the city’s interest in attorney-client pr ivilege against the
public’s right to be informed ab out actions that affect the pub lic interest. Id. at 442.
Appellants’ request to reopen their administrative appeal was pending when the city went
into its closed-door meeting. Appellants argue that the board’s closed-door meeting went
beyond providing legal advice to deciding the ultimate issue of whether to reopen their
administrative appeal. Appellants point to an email sent by a board member indicating his
feeling that the closed-door meeting influenced the vote and that the board members voted
based on the merits of appellants’ litigation rather than the merits of their request to reopen
their administrative appeal.
But, unlike in Prior Lake American , the merits of appellants’ litigation were
intrinsically tied to the pending question of whether to reopen appellants’ administrative
appeal. The city did not have an established standard for deci ding whether to reopen the
administrative appeal and the request to reopen an administrati ve appeal was
unprecedented. Because the board had no outlined procedures fo r reopening an
administrative appeal, the effect that such a decision would have on pending litigation was
a legitimate consideration.
The email from the board member suggests that the board members may have based
their decision largely, if not exclusively, on the legal advice they received regarding

21
appellants’ litigation. The ema il does not suggest that any is sues other than the pending
litigation were discussed, and the affidavit from the city’s at torney indicates that the
purpose of the meeting was to discuss litigation strategies. T he record does not contain
any facts supporting appellants’ contention that the board’s di scussion went beyond
litigation strategy, and their “general assertions” that improper discussions took place are
not enough to create a genuine issue of material fact. Nicollet Restoration, Inc. , 533
N.W.2d at 848.
Under these circumstances, the board needed absolute confidentiality to discuss its
litigation strategy. See Brainerd Daily Dispatch, 693 N.W.2d at 444 (concluding that the
attorney-client exception to the open-meeting law was properly invoked based on a city’s
need for absolute confidentiality to consider its legal options ) . T h e b o a r d ’ s n e e d f o r
absolute confidentiality in discu ssing the pending litigation o utweighed the public’s
interest in the board’s discussion of its litigation strategies . The district court properly
considered and balanced the comp eting factors, and we conclude that the attorney-client
exception to the open-meeting la w was properly invoked based on the need for absolute
confidentiality.
VII. The district court did not abuse its discretion in denying appellants’ motion
to compel further discovery.

Appellants argue that the district court abused its discretion by denying their motion
to compel further discovery because their slander-of-title and open-meeting-law claims are
fact intensive and require significant discovery. They urge this court to remand the matter
with instructions to allow them to conduct more depositions. T he city counters that the

22
district court’s decision to limit appellants’ depositions of city officials was well within the
court’s discretion.
A district court “has wide discretion to issue discovery orders and, absent clear
abuse of that discretion, normally its order with respect there to will not be disturbed.” In
re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007) (quotation omitted). Under
Minn. R. Civ. P. 37.01(b)(2), a party may request an order comp elling discovery in the
event of incomplete or nonresponsive discovery requests. But discovery must be “relevant
to any party’s claim or defense and proportional to the needs o f the case.” Minn. R. Civ.
P. 26.02(b).
In this case, appellants and the city filed competing discovery motions, with
appellants seeking to compel and expand discovery, and the city seeking a protective order.
In response to the city’s motion for a protective order, appell ants argued that the district
court would need to determine a variety of claims, which appell ants noted in parentheses
included an open-meeting-law claim and “unlawfully assessing a claimed debt.” In their
reply memorandum to their own motion to compel discovery, appellants again briefly noted
that the district court would need to review all the city’s decisions, including “the unlawful
assessment of a claimed debt.” But appellants did not clearly articulate that they needed
further discovery because of the fact-intensive nature of their slander-of-title and
open-meeting-law claims. Rathe r, appellants argued that they n eeded further discovery
because the board acted in bad faith and withheld information prior to its initial decision to
deny their administrative appeal, requiring further discovery for their claim that the city’s
decision to deny their administrative appeal was arbitrary and capricious.

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On appeal, appellants now argue that the lack of additional discovery hampered their
slander-of-title and open-meeting-law claims because both claim s are fact intensive. We
have already concluded that the city has statutory immunity wit h respect to appellants’
slander-of-title claim and that the district court properly gra nted summary judgment on
appellants’ open-meeting-law claim. Accordingly, appellants’ argument that they needed
further discovery regarding those claims is moot.
But we further note that appellants did not argue in district c ourt that they needed
more discovery because of the fact-intensive nature of those cl aims. Generally, “litigants
are bound [on appeal] by the theo ry or theories, however erroneous or improvident, upon
which the action was actually tried below.” Annis v. Annis, 84 N.W.2d 256, 261 (Minn.
1957). A party may not “obtain review by raising the same gene ral issue litigated below
but under a different theory.” Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988).
Appellants may not argue on appeal that the district court erred in granting their motion to
compel discovery on grounds that they did not argue before the district court.
Furthermore, even if we consider ed appellants’ argument, discov ery must be
“relevant to any party’s claim or defense and proportional to the needs of the case.” Minn.
R. Civ. P. 26.02(b). Because appellants did not clearly articulate to the district court why
further discovery was relevant to their claims and proportional to the needs of the case, the
district court did not abuse its discretion in denying their motion to compel discovery.
In sum, because the board failed to follow the statutory requir ements of Minn.
Stat. § 462.354, subd. 2, we reverse the board’s decision and remand the matter to the board
to reconsider whether a permit should be granted after receivin g input from the planning

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commission in compliance with the statutory procedural requirem ents. We affirm the
district court in all other respects.
Affirmed in part, reversed in part, and remanded.