Pauline Sellner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1213

Pauline Sellner,
Appellant,

vs.

Pheasants Forever, Inc.,
Respondent,

Curtis Plotz, et al.,
Respondents,

vs.

Glen Mathiowetz, et al.,
Third-Party Defendants.

Filed April 1, 2024
Affirmed
Smith, Tracy M., Judge

Brown County District Court
File No. 08-CV-22-82

Jennifer Moore, Trautmann Martin Law PLLC, Minneapolis, Minnesota (for appellant)

Paul E. Darsow, Nathaniel J. Weimer, Tewksbury & Kerfeld, Minneapolis, Minnesota (for
respondent Pheasants Forever, Inc.)

James D. Knudsen, Stephen P. Couillard, Bailey T. Stubbe, Stich, Angell, Kreidler &
Unke, P.A., Minneapolis, Minnesota (for respondents Curtis Plotz and Plotz Timber
Harvest, LLC)

Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and
Bratvold, Judge.
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NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this dispute arising from respondents’ destruction of trees on appellant’s property,
appellant argues that the district court erred by determining that the measure of damages is
the diminution in property value and asserts that the proper measure of damages is the
replacement cost of the trees. We affirm.
FACTS
This case involves several parcels of land in Brown County. Before 2019,
respondent Pheasants Forever, Inc., bought one of the parcels—a tract of land to the north
of Brown County Road 22, which runs east and west. Its intent was to create a wildlife-
management area (WMA) funded in part by a grant from the third-party defendant
Minnesota Department of Natural Resources (DNR). To the west of the WMA is a parcel
of land owned by third-party defendant Leavenworth Flats, a partnership with third-party
defendant Glen Mathiowetz as officer.
1 To the north of the WMA is a parcel of land owned
by appellant Pauline Sellner. Sellner’s parcel is nearly landlocked; the only access to the
parcel is narrow strip of land that Sellner owns between Mathiowetz’s parcel and the
WMA. The WMA had three rows of trees on the property that ran north to south—one on
the east of the property, one in the middle of the property, and one on the west of the
property. The westernmost row of trees extended onto the strip of land owned by Sellner.

1 We refer to Leavenworth Flats and Mathiowetz jointly as “Mathiowetz” in this opinion.
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Pheasants Forever applied for a grant from DNR to remove trees from several sites,
including the WMA, “to provide higher quality grassland habitat for wildlife.” In its
application, Pheasants Forever requested funds to remove only the easternmost and middle
rows of trees from the WMA; it did not initially seek to remove the westernmost row of
trees. DNR approved the grant. Pheasants Forever then sought bids from contractors to
remove the trees. Pheasants Forever awarded the contract to respondent Plotz Timber
Harvest, associated with respondent Curtis Plotz.2
After the bidding process, additional funds remained, so Pheasants Forever emailed
DNR to ask about other tree-removal sites. DNR suggested removing the westernmost row
of trees from the WMA. Pheasants Forever responded to DNR’s suggestion, stating,
incorrectly, that “Mathiowetz owns [the] neighboring land” and requesting that DNR “flag
the boundary very clear for the contractor so there would be no chance of them cutting a
tree on the neighboring property.” DNR subsequently sent a letter to Mathiowetz about the
possibility of removing the entire westernmost row of trees. Mathiowetz responded via
email that it was “OK to remove the trees along the property line.” Plotz then removed all
three rows of trees.
The westernmost row of trees, however, was not on land owned by Mathiowetz;
rather, that row of trees extended only onto the strip of land owned by Sellner. After Sellner
discovered that Plotz had removed trees from her land, Sellner sued Pheasants Forever and
Plotz. Pheasants Forever filed a cross-claim against Plotz. Plotz then filed a third-party

2 We refer to Plotz Timber Harvest and Plotz jointly as “Plotz” in this opinion.
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complaint against Mathiowetz and DNR. DNR filed a cross-claim against Pheasants
Forever. Finally, Mathiowetz filed a counterclaim against Plotz and a cross-claim against
DNR.
Following discovery, DNR moved for summary judgment as to its cross-claim
against Pheasants Forever. Mathiowetz moved for summary judgment as to Plotz’s claims.
And Pheasants Forever filed a motion asking the district court to determine the correct
method to calculate damages for the destruction of the trees on Sellner’s land.
On February 24, 2023, the district court filed an order granting summary judgment
to DNR and Mathiowetz and determining, in response to Pheasants Forever’s motion, that
the correct measure of damages was the diminution in value of Sellner’s property, not the
cost to replace the destroyed trees.
After that order, Sellner and the remaining defendants —Pheasants Forever and
Plotz—filed a stipulation with the district court. The stipulation stated that, “based upon
the reasoning” of the district court’s order establishing that the proper method of
calculating damages is the diminution in property value, summary judgment against Sellner
“would have been appropriate” if it had been requested. The stipulation also stated that
Sellner “wishe[d] to preserve the right to appeal the Court’s ruling while saving the parties
. . . costs associated with a trial on claims that would have likely been dismissed at
summary judgment had summary judgment been requested.” Sellner concedes that there
was no evidence in the record regarding the value of the property, so she would not have
been able to establish any damages had the case gone to trial. The parties stipulated “that
summary judgment be entered in favor of [ Pheasants Forever and Plotz] on all claims
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brought against them by [Sellner].” On April 4, the district court issued an order directing
entry of judgment for Pheasants Forever and Plotz pursuant to the parties’ stipulation. The
district court entered judgment on July 5, 2023.
Sellner appealed, and Pheasants Forever moved to dismiss the appeal. Relevant
here, Pheasants Forever argued that the April 4 stipulated order for summary judgment on
“all claims” foreclosed Sellner’s right to appeal. A special term panel of this court denied
Pheasants Forever’s motion, concluding that the “April 4, 2023 stipulated order does not
preclude this court from reviewing the February 24, 2023 damages order challenged in this
appeal.”
DECISION
I. This court has jurisdiction over this appeal.

Plotz argues that the appeal is not properly before this court because we lack
jurisdiction. He cites Bulau v. Bulau, 294 N.W. 845, 846 (Minn. 1940), for the proposition
that appellate jurisdiction cannot be conferred by the consent of the parties. Pheasants
Forever also cites Bulau but suggests that this court can maintain jurisdiction by deeming
the district court’s ruling on the measure of damages as a judgment under Minnesota Rule
of Civil Procedure 54.02, which permits district courts to direct the entry of final judgment
partially resolving a case when there is no just reason for delay.
We previously decided that we have jurisdiction over this appeal. By order of a
special term panel, we denied Pheasants Forever’s motion to dismiss, determining that the
April 4 stipulated order for summary judgment does not preclude this court from reviewing
the February 24 order ruling on the method for calculating damages. We came to that
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conclusion because, although the parties agreed to the entry of judgment against Sellner,
they did so “to avoid the costs of a trial on claims that had been effectively resolved by the
district court’s ruling on the method of calculating damages” and the stipulation “expressly
reserved Sellner’s right to appeal the district court’s ruling.”
Although Bulau was not raised or addressed in the special term proceedings, we
remain convinced that our special term decision was correct. We conclude that we have
jurisdiction and proceed to the merits.
II. The district court did not err by determining that the correct measure of
damages is the diminution in property value.

Sellner argues that the district court erred by concluding that the correct measure of
damages is the diminution in value of her property, rather than the cost to replace her
destroyed trees, and that summary judgment against her must be reversed and the case
remanded for trial.
Appellate courts review a district court’s grant of summary judgment de novo.
Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010).
“In doing so, [appellate courts] determine whether the district court properly applied the
law and whether there are genuine issues of material fact that preclude summary
judgment.” Id. “[Appellate courts] view the evidence in the light most favorable to the
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).
Two seminal cases govern the measure of damages for the destruction of trees:
Baillon v. Carl Bolander & Sons Co., 235 N.W.2d 613 (Minn. 1975), and Rector, Wardens,
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& Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 235 N.W.2d 609
(Minn. 1975). These opinions were released on the same day, and they each reference the
other.
In Baillon, homeowners sued a highway-construction company that went onto their
property and removed a number of trees and shrubs growing near the highway. 235 N.W.2d
at 614. Following a trial, the homeowners appealed, arguing that the district court erred by
not awarding them the replacement cost of the trees. Id. The supreme court observed that
“[i]t has long been the rule in this state that the measure of damages for destruction of trees
and shrubbery is the difference between the value of the land before and after the damage
has been inflicted.” Id. The trees that were removed by the highway-construction company
were “for the most part, quite small, ill-formed, and not particularly desirable as shade trees
or ornamental trees but did serve to prevent erosion and act as a sound barrier.” Id. at 615.
The supreme court held that, although the district court found that the appellants “desired
to have the particular trees to preserve a natural and wild appearance and to help in avoiding
noise from the highway as well as to preserve the beauty of the premises,” the proper
measure of damages was the diminution in value of the real estate. Id. at 614-15. The
supreme court wrote: “[T]o use a replacement cost as the measure of damages would be to
replace deformed, unhealthy, crooked and unsightly trees with vigorous, healthy, well -
shaped and well-formed trees,” which could “involve an expense greatly out of proportion
to the actual damage to the real estate.” Id. at 615 (quotation marks omitted).
In the companion case McCrossan, a church sued a construction company that was
constructing the church’s new parking lot for negligently destroying shade trees on the
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church’s property. 235 N.W.2d at 610. The district court directed a verdict for the
construction company because the church did not prove damages based on a diminution of
property value, and the church appealed. Id. The trees that were destroyed were two black
cherry trees and 20 red oaks. Id. They were “large and mature. ” Id. The trees not only
screened the area from traffic but “gave the area a natural, pleasing, aesthetic, wooded
atmosphere.” Id. The supreme court decided that damages were not limited to the
diminution in property value. Distinguishing this case from Baillon, the supreme court held
that, “where trees and shrubbery have aesthetic value to the owner as ornamental and shade
trees or for purposes of screening sound and providing privacy, replacement cost may be
considered to the extent that the cost is reasonable and practical.” Id. at 611.
In accordance with this caselaw, if the undisputed facts establish that Sellner’s trees
lacked aesthetic value (1) as ornamental and shade trees or (2) for purposes of screening
sound and providing privacy, the traditional damages measure of the diminution in property
value applies. Following a careful review of the record and viewing the evidence i n the
light most favorable to Sellner, we conclude that there are no disputed issues of material
fact on those issues and that the district court properly concluded that the diminution in
property value, and not the replacement value of the trees, is the proper measure of
damages.
First, the evidence presents no genuine dispute of fact as to whether the trees had
aesthetic value as ornamental or shade trees. The trees were a row of Siberian elms on
Sellner’s narrow strip of unoccupied land running along an access road. Pheasants Forever
submitted an expert witness report appraising the trees. According to that expert, Siberian
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elms are a nonnative species that invades roadsides, pastures, and prairies. They form
thickets that displace native vegetation. Sources consulted by the expert describe Siberian
elm as “[a] poor ornamental tree” and “[o]ne of, if not, the world’s worst trees.” The expert
knew of no Minnesota nurseries that carry Siberian elm.
Sellner also submitted an expert witness report. Her expert stated generally that
“[t]rees have value” and, with respect to the Siberian elm trees at issue, stated that they
“contributed to wildlife habitats, wind and weather protection, physical security and barrier
to trespass, weed and erosion control, along with many other intangible and immeasurable
traits that are not easily quantified.” But the expert did not identify any shade or ornamental
aesthetic value. He recognized that the trees were in a rural setting and were not landscape
trees. He stated that “[t]here is no maintained landscape, home or urban style marketable
property to relate these trees to.”
The only positive testimony about the shade or ornamental value of the trees was
from Sellner’s son, who stated,
These trees had a full canopy, full – full foliage. They were
hardy. They were healthy. And I have to admit, there were
several times that I’ve eluded to their shade when we were
doing manual work, whether putting in fence or planting trees,
whatever the – the course would have been. But to have them
there was a – a treat.

But Sellner’s son’s enjoyment of the trees’ shade on several occasions is insufficient to
create a genuine issue of material fact as to whether this rural row of Siberian elms was
like the ornamental shade trees on church property in McCrossan.
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Second, the evidence presents no genuine dispute of fact as to whether the trees had
aesthetic value for screening or privacy purposes. Given their location on the narrow strip
of land between the WMA and Mathiowetz’s property, the row of trees did not provide
screening or privacy protection for Sellner. And, though Sellner’s expert described the trees
as providing an access barrier to Sellner’s property, Sellner does not explain how that is
the case given their location. And other uses identified by Sellner’s expert—for example,
erosion protection and windbreak—did not go to the aesthetic value of the trees and do not
distinguish the trees from those in Baillon, where the traditional diminution-in -property-
value measure of damages applied.
We conclude that there is no genuine dispute of material fact and that the district
court correctly determined that the diminution in property value is the proper measure of
damages for the destruction of Sellner’s trees. The district court therefore did not err by
granting summary judgment against Sellner.
Affirmed.