County of Sherburne, Respondent,

This opinion will be unpublished and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
A18-1724

County of Sherburne,
Respondent,

vs.

Steven D. Weese,
Appellant,

vs.

County of Sherburne, et al.,
Respondents.

Filed June 17, 2019
Affirmed
Jesson, Judge

Sherburne County District Court
File No. 71-CV-17-838

Kathleen Heaney, Sherburne County Attorney, Tim Sime, Assistant County Attorney, Elk
River, Minnesota (for respondent Sherburne County)

Steven D. Weese, Clear Lake, Minnesota (pro se appellant)

Andrew A. Wolf, Paul D. Reuvers, Iverson Reuvers Condon, Bloomington, Minnesota (for
respondents County of Sherburne, et al.)

Considered and decided by Sche llhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Steven Weese built a structure on his property that he contends is a fish
house. But respondent Sherburne County disagrees, classifying it as a shed or storage
building, which subjects it to building code and zoning require ments. After several
attempts to informally resolve t he dispute, Sherburne County so ught a declaratory
judgment. In response, Weese f iled several counterclaims again s t t h e c o u n t y . W e e s e
appeals the district court’s grant of summary judgment in favor of the county and the
dismissal of his counterclaims as a discovery sanction. Because the district court correctly
determined that no genuine issue of material fact exists and did not abuse its discretion by
dismissing Weese’s counterclaims, we affirm.
FACTS
Appellant Steven Weese owns prope rty in Sherburne County. On t hat property,
Weese built a structure, the classification of which is dispute d. The structure—which
Weese contends is a fish house and respondent Sherburne County (the county) classifies
as a shed or storage structure—is about 300 square feet in size , appears to be built on
wooden boards, and resembles a metal storage building. Weese did not apply for or receive
a building permit from the county before building the structure.
In 2014, the county informed Weese that the structure on his p roperty required a
building permit. Further, the county told Weese that his structure was too close to the roads
and did not comply with setback requirements. Despite this warning, Weese did not make
any adjustments to the structure. Instead, Weese asserted to c ounty officials that his

3
structure was a fish house licen sed with the Minnesota Departme nt of Natural Resources
and therefore not subject to building code and zoning requirements. County officials made
several attempts to informally resolve the dispute about the st ructure over the next few
years. Weese took no action.
After Weese failed to apply for a building permit or make any adjustments to the
structure on his property, the dispute was referred to the coun ty attorney’s office. The
county filed an enforcement action against Weese, seeking a declaratory judgment stating
that Weese’s structure violated the building code by not having a permit and the zoning
ordinance by not following setback requirements. The county further sought an injunction
requiring Weese to remove the structure and for an award of cos ts and fees. Weese filed
counterclaims against the county and various county officials, including claims of racial
and economic discrimination and abuse of process.
1
As the litigation entered the discovery phase, Weese did not c omply with discovery
requirements. Specifically, Weese did not adequately respond to interrogatories, document
requests, and requests for admissions. And although Weese attended his deposition, he did
not answer the vast majority of questions. Due to Weese’s lack of cooperation, the county
filed a motion to compel discovery, which the district court granted. In its order, the district
court directed Weese to provide the requested discovery within two weeks and ordered him
to appear for and answer questions at a second deposition. The district court also ordered
Weese to pay the county’s costs associated with bringing the mo tion and incurred during

1 Weese also asserted counterclaims for perjury, racketeering, mail fraud, and violations of
the Sixth Amendment, all of which the district court dismissed with prejudice.

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the deposition and stated that “f ailure to comply with [the cou rt’s order] will result in
dismissal with prejudice of [Weese’s] counterclaims against [the county].”
Weese failed to comply with the district court’s order. As a result, the district court
concluded that “dismissal [of the counterclaims was] the appropriate remedy for [Weese’s]
flagrant disregard” of the district court’s order. Accordingly , the district court dismissed
Weese’s counterclaims with prejudice and entered judgment in fa vor of the county.
Additionally, the district court concluded that no genuine issu es of material fact existed
with respect to the county’s enf orcement action and granted sum mary judgment in favor
of the county. Weese appeals.
D E C I S I O N
Weese contends that the district court erred in two ways. Fir st, he maintains that
the district court incorrectly gra nted summary judgment in favo r of the county because
genuine issues of material fact exist related to whether his structure is a fish house. Second,
Weese argues that it was an abuse of discretion for the distric t court to dismiss his
counterclaims as a discovery sanction. We address each argument in turn.
I. The district court did not err by granting summary judgment in favor of the
county.

Weese, who is self-represented, first appears to contend that t he district court
erroneously granted the county’s motion for summary judgment because factual questions
exist regarding whether his structure is a fish house. We review a district court’s grant of
summary judgment de novo, evaluating whether genuine issues of material fact exist and
whether the district court properly applied the law. Montemayor v. Sebright Prods., Inc.,

5
898 N.W.2d 623, 628 (Minn. 2017 ). In doing so, we view the evi dence in the light most
favorable to Weese. STAR Ctrs., Inc. v. Fa egre & Benson, L.L.P. , 644 N.W.2d 72, 76
(Minn. 2002).
A genuine issue of fact exists if reasonable persons could draw different conclusions
from the evidence presented. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). And a
material fact is one whose “resol ution will affect the outcome of the case.” O’Malley v.
Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996). But no genuine issue of ma terial fact
exists “when the nonmoving party presents evidence which merely creates a metaphysical
doubt as to a factual issue.” DLH, Inc., 566 N.W.2d at 71. Rather, the nonmoving party
must present specific facts to satisfy its burden and may not rely upon “mere averments in
the pleadings or unsupported allegations.” Bebo v. Delander, 632 N.W.2d 732, 737 (Minn.
App. 2001), review denied (Minn. Oct. 16, 2001).
To determine if the district court properly granted summary jud gment, we first
evaluate whether there is a genuine issue of material fact rega rding whether Weese’s
structure is a fish house. We then turn to examine the district court’s legal conclusion that
the structure violated building code and zoning requirements.
Here, the district court determined that no genuine issue of ma terial fact existed
because “no evidence” supported Weese’s assertion that his structure is a fish house. The
district court found that the record established that Weese’s structure had never been moved
off of his property, never been used as a fishing shelter, and that “there [was] ample
evidence that the shed could not be transported to a frozen lak e and used as a fish house
should [Weese] ever make such an attempt.” We agree.

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Very little evidence in the record—other than his own assertion that he built the
structure and intended for it to be a fish house—supports Weese’s claim that his structure
is a fish house. Weese stated during his deposition that he ha d previously moved the
structure “several feet” on his property and submitted photos that the structure had holes
in the floor as would be expected in an ice-fishing house. But even viewing this evidence
in the light most favorable to Weese, it does not create a genuine issue of material fact. As
the district court noted, the structure has never moved off of Weese’s property.2 Never
been used as an ice-fishing shelter. Further, Weese has only ever utilized the structure for
storage. As the district court aptly stated, “[Weese’s] classi fication of the shed as a fish
house does not make it so.” The evidence supporting Weese’s assertion that the structure
is a fish house does little more than create a “metaphysical doubt,” and does not present a
genuine issue of material fact. DLH, Inc., 566 N.W.2d at 70, 71.
Because the structure is not a f ish house arguably exempt from local controls, we
turn to the district court’s legal conclusions that the structu re did not comply with local
ordinances.3 Counties have the authority to enact zoning ordinances. Minn. Stat. § 394.21,
subd. 1 (2018). The county’s z oning ordinance defines “buildin g” as “[a]ny structure
designed or intended for the support, enclosure, shelter or pro tection of persons, animals

2 The district court noted that a county building official opined that it was not structurally
sound enough to be moved off of the property.
3 Weese contends that there is a question about whether fish houses are regulated under the
Minnesota Building Code or the Sherburne County Zoning Ordinanc e. But the district
court correctly concluded that there was no genuine issue of ma terial fact regarding
whether the structure was a fish house. Because the district court determined the structure
is not a fish house, it is irrelevant which body of law properly governs fish houses.

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or property” and requires a permit before constructing, alterin g, or moving any building.
Sherburne County, Minn., Zoning Ordinance (SCZO) §§ 5, subd. 2 (2019) (defining
building), 18, subd. 7(1)(A) (2017 ). Accordingly, the county z oning ordinance requires
that, for Weese’s property, the minimum setback from township r oads is 67 feet.
SCZO § 7, subd. 6(3) (2015).
It is undisputed that Weese did not have a permit for his struc ture and that, at the
nearest point, the structure was only 43.4 feet from a township road. And the structure
meets the definition of buildin g outlined in the county’s zonin g ordinance, meaning that
Weese was required to comply with its regulations. He did not do so. As such, the district
court correctly concluded that Weese’s structure violated the z oning ordinance. Because
the district court correctly determined that no genuine issue o f material fact existed and
correctly applied the law, summary judgment was appropriate.
Still, Weese contends that the 67 -foot setback requirement foun d in the county’s
zoning ordinance is unconstitutional. 4 Weese argues that Minnesota Statutes section
463.01 (2018) establishes a not-g reater-than 50-foot building l ine, and that because the
county’s zoning ordinance requi ring a 67-foot setback is longer than the one outlined in
the statute, the county’s ordinance is unconstitutional.

4 The county argues that Weese did not raise this issue. But it is included in his answer
and counterclaims filed with the district court. The district court’s order did not address
this argument.

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This argument is misplaced. Mi nnesota Statutes section 463.01 reads, in relevant
part:
The council of any city, . . . may establish along any street or
highway within such city a building line upon the land
adjoining such street or highway, or any portion thereof, and
distant not more than 50 feet from the margin of such street or
highway, and may, [on] behalf of the city, acquire an easement
in the land between such line and exterior street line, such that
no buildings or structures shall be erected or maintained upon
this land.

(Emphasis added.) As the county notes, the identified statute discusses the authority of
cities. But the ordinance in question here is a county ordinance. Authority for counties to
establish setback requirements derives from Minnesota Statutes section 394.25,
subdivision 3 (2018). And that provision does not identify a maximum distance for setback
requirements. As such, Weese’s argument that the county’s zoni ng ordinance is
unconstitutional because it conflic ts with Minnesota Statutes s ection 463.01 is not
persuasive.
Because no genuine issue of material fact exists and because t he district court
correctly applied the law, we affirm the district court’s grant of summary judgment in favor
of the county with respect to the enforcement action.
II. The district court did not abuse its discretion by dismissi ng Weese’s
counterclaims as a discovery sanction.

Weese appears to argue that the district court improperly dismi ssed his
counterclaims as a discovery sanction. We review a district court’s dismissal of claims for
an abuse of discretion. Modrow v. JP Foodservice, Inc. , 656 N.W.2d 389, 395 (Minn.
2003).

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Under rule 41.02(a) of the Minnesota Rules of Civil Procedure, a district court “may
upon its own initiative . . . dismiss an action or claim for failure to prosecute or to comply
with these rules or any order of the court.” This authority also applies to the dismissal of
counterclaims. Minn. R. Civ. P. 41.03. And a district court h as wide discretion to
determine whether dismissals are with or without prejudice. Falkenstein v. Braufman, 88
N.W.2d 884, 889 (Minn. 1958). But dismissal with prejudice “is the most punitive sanction
which can be imposed for noncompliance with the rules or order of the court” and should
only be granted under “exceptional circumstances.” Firoved v. Gen. Motors Corp. , 152
N.W.2d 364, 368 (Minn. 1967). When determining whether to dism iss a claim with
prejudice, the primary factor a district court should consider is the prejudicial effect on the
parties. Id.
Here, after the county filed a motion to compel Weese to parti cipate in discovery,
the district court ordered Weese to provide the requested discovery and answer questions
at a deposition. And in that order, the district court explicitly stated that “failure to comply
with [the order would] result in d i s m i s s a l w i t h p r e j u d i c e o f [ Weese’s] counterclaims
against [the county].” Weese did not comply with this order. Accordingly, the district
court found that “dismissal [was] the appropriate remedy for [Weese’s] flagrant disregard
of the [c]ourt’s [o]rder.”
The district court’s decision to dismiss Weese’s counterclaims is within the court’s
authority. Minn. R. Civ. P. 41.02(a), 41.03; see also Sudheimer v. Sudheimer, 372 N.W.2d
792, 795 (Minn. App. 1985) (stating that “existence of a clear warning by the trial court
that dismissal or a similar sanction would automatically result if the party did not comply

10
with a discovery deadline has been a significant factor in dete rmining on appeal whether
such a sanction was appropriat e”). And although the district c ourt did not discuss how
Weese’s failure to comply with the discovery order prejudiced the county, it is evident that
his refusal to participate in discovery effectively prohibited the county from being able to
litigate its case.5 As such, it was not an abuse of discretion for the district court to dismiss
Weese’s counterclaims.
Weese contends that he could no t comply with the district cour t’s discovery order
because doing so would require him to commit perjury. We are not persuaded. The district
court noted in its order granting the motion to compel that Weese had the privilege against
self-incrimination, but stated that if he intended to invoke th at privilege, he needed to do
so in a clear, oral fashion. And it is unclear how responding to interrogatories and requests
for admissions or document production would require Weese to commit perjury.6
In sum, the district court properly granted summary judgment i n favor of the county
with respect to the enforcemen t action. And because Weese fail ed to c omply with the
district court’s discovery order, the district court did not abuse its discretion by dismissing
Weese’s counterclaims.
Affirmed.

5 Weese does not argue the issue of prejudice on appeal.
6 Weese also argues the merits of his abuse-of-process claim. But because the district court
did not abuse its discretion by dismissing the claim as a result of Weese’s failure to comply
with the discovery order, we do not reach the question of wheth er the abuse-of-process
claim is meritorious.