H. Joseph Slater, Appellant,

This opinion will be unpublished and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
A19-2017

H. Joseph Slater,
Appellant,

Kimberly Devine, et al.,
Plaintiffs,

vs.

Wabasha County,
Respondent.

Filed June 15, 2020
Affirmed; motion denied
Worke, Judge

Wabasha County District Court
File No. 79-CV-19-318

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

Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington, Minnesota (for respondent)

Considered and decided by Worke, Pres iding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court erred by: (1) concluding that mandamus does
not lie because appellant has an adequate remedy at law; and (2) sua sponte granting

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summary judgment to respondent and dismis sing appellant’s complaint. We affirm.
Appellant also moves this court to supplement the record. We deny the motion.
FACTS
In April 2000, appellant H. Joseph Slater submitted his prelim inary plat for the
Pepin Bluff Preserve Development (Pepin Bluff) to the Wabasha County Planning
Commission. Pepin Bluff is comprised of two subdivisions, or phases, each located within
a different jurisdiction. Phase 1 is located within the boundaries of Lake City, whereas
Phase 2 is located outside of Lake City’s boundaries and is subject to the subdivision
requirements of Wabasha County. The present dispute involves the maintenance of roads
located within Phase 2 of the development.
While initial plats of Phase 2 indicated th e use of outlots and private roads, the
amended final plat included a dedication of th e access thoroughfares to the public. That
plat contains the following dedication language: “Have caused the same to be surveyed and
platted as PEPIN BLUFF PRESERVE 2 and do he reby donate and dedicate to the public
for public use forever the thoroughfares and cul de sacs.”
During a June 25, 2001 meeting of the Wabasha County Planning Commission, a
board member raised the concerns of the La ke Township Board regarding the dedication
of roads to the public and requested that Slater address the township board. According to
the minutes of the meeting, “Mr. Slater stated [that] all questions have been answered and
he had no further comment.” The Wabasha County Boar d ultimately approved the
amended final plat and it was recorded on September 18, 2001.

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Following approval of the final amended plat, Slater sought to rezone the
development, and the Wabasha County Pla nning Commission consid ered this request
during a meeting on February 11, 2002. Ac cording to the minutes of the meeting, a
representative of Lake Township stated th at “the Lake Township Board has requested
[Slater] to come to the Township with his proposals to develop and [Slater] never has come
to them.” The minutes indicate that the Lake Township representative went on to note that
while the map indicated the presence of public roads, “they are not existing public roads
. . . [Slater] may have proposed them as public roads but . . . [Slater] has never been to the
township to discuss taking ov er the roads as public roads. ” In response, the minutes
indicate that Slater stated th at “the township does not ha ve any laws and going to the
township was irrelevant.”
In March 2019, Slater petitioned Wabasha County to take over maintenance of the
roads in Phase 2. Wabasha County responded to Slater’s petition and indicated that Lake
Township maintains one ro ad, Lake City maintains another, and that “263 rd Avenue and
708th Street were never established as county, city or township roads.” Wabasha County
informed Slater that he could petition Lake City or Lake To wnship to maintain the roads
pursuant to Minn. Stat. §§ 164.07 and 164.15 (2018).
Slater and ten other landowners (collectively plaintiffs) then filed the present action
in district court, seeking a writ of mandamu s directing Wabasha Coun ty to maintain the
roads in Phase 2 and recognize them as public rights-of-way. Plaintiffs also brought a
claim for damages related to the county’s failure to maintain the roads.

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Slater moved the district court for summary judgment on the mandamus claim only.1
The district court denied Slater’s motion for partial summary judgment and sua sponte
granted summary judgment to the county and dismissed the complaint. This appeal
followed.
D E C I S I O N
Slater argues that the district court erred by granting the county summary judgment
sua sponte on all claims and dismissing the co mplaint. This court reviews the grant of
summary judgment de novo. Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628
(Minn. 2017). This court reviews “whether ther e are any genuine issues of material fact
and whether the district court erred in its app lication of the law. [This court] view[s] the
evidence in the light most favorable to th e party against whom summary judgment was
granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P. , 644 N.W.2d 72, 76-77 (Minn.
2002).
“When a decision on a writ of mandamus is based solely on a legal determination,
we review that decision de novo.” Breza v. City of Minnetrista , 725 N.W.2d 106, 110
(Minn. 2006). This court reviews the in terpretation of a statute de novo. Cocchiarella v.
Driggs, 884 N.W.2d 621, 624 (Minn. 2016).

1 Initially, all of the plaintiffs were represente d by the same counsel in district court, but
Slater subsequently proceeded pro se. Slater filed his briefs to this court pro se, but is now
represented by different counsel.

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Mandamus
Slater first argues that the district court erred by granting the county summary
judgment sua sponte on plaintiffs’ request for a writ of mandamus directing the county to
maintain the roads in Phase 2. “Mandamus is an extraordinary legal remedy that courts
issue only when the petitioner shows that ther e is a clear and present official duty to
perform a certain act.” Kramer v. Otter Tail Cty. Bd. of Comm’rs , 647 N.W.2d 23, 26
(Minn. App. 2002) (quotation omitted). In order to receive mandamus relief, Slater “must
show that: 1) the [county] failed to perform an official duty clearly imposed by law; 2) he
suffered a public wrong and was specifically in jured by the [county’s] failure; and 3) he
has no other adequate legal remedy.” Breza, 725 N.W.2d at 109-10 (quotations omitted).
The district court determined that plain tiffs had an adequate legal remedy and
therefore sua sponte granted summary judgment for the county on plaintiffs’ request for
mandamus relief. The district court relied on Minn. Stat. § 163.16 (2018), which provides
a statutory procedure for landowners to compel the maintenance of a described town road.
Under that statutory scheme, five or more landowners may bring a complaint before the
county board identifying the improperly maintained road, which then obligates the county
board to hold a hearing on the complaint. Minn. Stat. § 163.16, subd. 1. If the county
board determines that the co mplaint is well-found ed, it shall direct the town board to
perform necessary improvements. Id., subd. 3. If the town fails to perform the work, the
county may cause the work to be done. Id. “Any decision of the county board acting under
the authority of § 163.16 would be subject to judicial review by certiorari.” Town of Red

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Rock v. County of Mower (In re Maint. of Road Areas Sho wn on the Plat of Suburban
Estates), 250 N.W.2d 827, 831 (Minn. 1977).
Because the present action invo lved more than five plai ntiffs, the district court
determined that they possessed an adequate legal remedy to seek road maintenance under
section 163.13, and therefore determined that they were not entitled to mandamus relief.
See Breza, 725 N.W.2d at 110. Since plaintiffs were not entitled to mandamus relief as a
matter of law, the district court sua sponte granted the county summary judgment on this
claim.
Slater asserts that his dedication of the road s to “the public” in the plat of Phase 2
approved by the county board was sufficient to obligate the county to maintain the roads,
but this argument is not supported by precedent. When the plat of Phase 2 was approved,
“every donation to the public . . . shall operate to convey the fee of all land so donated, for
the uses and purposes named or intended . . . . Land donate d for any public use in any
municipality shall be held in the corporate name in trust for the purposes set forth or
intended.” Minn. Stat. § 505.01 (2000).2
However, “the mere platting of the land did not instantly create an obligation upon
the town board to open and maintain the de dicated streets . . . the municipality may
determine the time it will open a street and assume the maintenance thereof.” Town of Red
Rock, 250 N.W.2d at 831. In other words, dedication of a road to the public does not itself
obligate a governmental subdivision to maintain it. The supreme court stated that prior to

2 In 2007, section 505.01, subd. 1, was amended to make the dedication of a road in a plat
the conveyance of an easement only. 2007 Minn. Laws ch. 73, § 1.

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bringing an action before the county board under section 163.16, “the property owners
should formally present a request to their town board to open and maintain the roads.” Id.
The county board has jurisdic tion to consider a complaint that the township improperly
failed to maintain a town road. Id.
Slater also asserts, without citation to authority, that section 163.13, and the
statements of the supreme court in Town of Red Rock, are limited by their plain language
to petitions to maintain town roads. Because Slater contends that the roads in Phase 2 are
county roads, he argues that section 163.13 and Town of Red Rock are inapplicable.
However, in Town of Red Rock , as here, the roads were constructed according to
specifications obtained from the county engineer. Id. at 829. And the county accepted the
final plat, including the public dedication, for filing. Id. It was the filing of the plat that
brought road-maintenance comp laints within the statutory process provided by section
163.16. Id. at 831. The supreme court went on to state that “[a]ny attempt to differentiate
between a ‘public road’ and a ‘town road’ operates to improperly construe the more
inclusive term ‘described town road’ and we reject such a subtle distinction.” Id. On this
basis, Slater’s contention that the dedication of the roads in the plat of Phase 2 “to the
public” operated to remove them from the scope of section 163.16 is inconsistent with the
supreme court’s statements in Town of Red Rock.
Slater next argues that even if he was not entitled to partial summary judgement, the
district court erred by granting summary judgmen t sua sponte to the county on plaintiffs’
mandamus claim. Under Minn. R. Civ. P. 56.06 , the district court may, “[a]fter giving
notice and a reasonable time to respond . . . (a) grant summary judgment for a nonmovant.”

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Slater argues that the district court erred be cause it did not provide him with notice or a
reasonable time to respond.
Slater moved for partial summary judgment on his request for a writ of mandamus.
The county took the position in its responsive memorandum that Slater’s request for
mandamus should be denied and dismissed, and noted that under rule 56 the district court
may enter summary judgment for either party.3 Slater filed a reply memorandum, wherein
he responded to the county’s arguments regarding the availability of mandamus relief, but
did not address the county’s request to dismi ss the claim. During the hearing on Slater’s
motion, the county took the position that su mmary judgment should be entered for the
county if the district court found that mandamus relief was inapplicable. Neither Slater nor
the attorney for the other plaintiffs noted any opposition to the county’s position.
Under similar circumstances, this court determined that su a sponte summary
judgment for the nonmoving party was appropriate. See W. Circle Props. L.L.C. v. Hall ,
634 N.W.2d 238, 244 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001) (stating
that the moving party—against whom summary judgment was entered—was not
prejudiced by a lack of notice or opportunity to respond when the matter turned on a single
legal issue and the moving party filed a reply brief). While W. Circle Props. was decided
before the 2018 amendments to rule 56, Slater has not established that he lacked notice of

3 It appears that the county relied upon a previous version of Minn. R. Civ. P. 56.03, but as
discussed above, rule 56.06(a) authorizes the district court to enter summary judgment for
a nonmovant.

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the basis for the county’s re quest to dismiss the complain t, and therefore sua sponte
summary judgment was appropriate under rule 56.06(a).
Damage claim
Slater next argues that the district court e rred by sua sponte granting the county
summary judgment on plaintiffs’ damage claim. The district court did not specifically
address this aspect of plaintiffs’ complaint, but found that dismissal of the entire complaint
was warranted because “[p]laintiffs are to pur sue another remedy available to them prior
to seeking the [w]rit of [m]andamus.” While pl aintiffs’ complaint sets forth two separate
counts—the first for a writ of mandamus, the second for damages—the second claim does
not raise any substantive cause of action. Because plaintiffs’ seco nd count is not an
independent cause of action, the district court’s sua sponte dismissal of the entire complaint
was appropriate. Plaintiffs were not entitle d to mandamus relief, which was their sole
cause of action.
Motion to supplement record
As a final matter, during the pendency of this appeal, Slater moved this court to
supplement the record pursuant to Minn. R. Civ. App. P. 103.04 with two documents he
asserts constitute orders affecting the district court’s summary judgment order. The first
document is the minutes of a November 19, 20 19 meeting of the Lake Township Board.
The second document is a January 8, 2020 letter from the Wabasha County Attorney.
The district court’s summary-judgment order was filed on October 16, 2019. At a
minimum, the documents submitted by Slater do not constitute orders affecting the
judgment because they came into existence after the order from which Slater appeals. See

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Konkel v. Fort, 73 N.W.2d 613, 614 (Minn. 1955) (“An appeal from a judgment does not
bring up for review orders en tered subsequent to its rend ition but only prior orders and
rulings which result in the judgment.”). Acco rdingly, Slater’s motion to supplement the
record is denied.
Affirmed; motion denied.