This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A16-0722

Gary Otremba, 

Appellant, 

Heidi L. Moegerle, 

Appellant, 

vs. 

City of East Bethel, 

Respondent.

Filed November 28, 2016

Affirmed

Halbrooks, Judge

Concurring specially, Johnson, Judge

Anoka County District Court

File No. 02-CV-15-5612

Gary Otremba, Heidi L. Moegerle, Wyoming, Minnesota (pro se appellants)

Kevin S. Sandstrom, Mark J. Vierling, Eckberg Lammers, P.C., Stillwater, Minnesota 

(for respondent)

Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and 

Johnson, Judge. 
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U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Pro se appellants challenge the district court’s dismissal of a special-assessment 

appeal, arguing that payment of a special assessment prior to filing an appeal does not 

preclude the appeal. We affirm.

FACTS

Appellants Gary Otremba and Heidi Moegerle own property located in the City of 

East Bethel. Respondent City of East Bethel adopted a resolution that ordered appellants 

to remove a retaining wall that encroached upon the city’s right-of-way of the street 

adjoining appellants’ property. Appellants did not appeal this resolution and did not 

remove the retaining wall. Thereafter, the city removed the retaining wall and adopted a 

special-assessment resolution, ordering appellants to reimburse the city for its removal of 

the wall. 

Moegerle filed an appeal in district court after she paid the special assessment in 

full, requesting that the district court order the following relief: (1) set aside the 

assessment without ordering a new assessment, (2) declare that the special-assessment 

resolution is void, (3) order the city to reimburse appellants for payment of the special 

assessment, (4) award punitive damages, (5) bar the city from renaming the specialassessment project, and (6) require the city to publish an apology to appellants. The city 

moved the district court for an order dismissing the action, arguing that payment of a 

disputed assessment prior to filing an appeal acts as a jurisdictional waiver of the right to 
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appeal. Appellants conceded that Moegerle paid the special assessment but argued that 

payment did not waive their right to appeal the special assessment.

The district court dismissed appellants’ special-assessment appeal with prejudice. 

It determined that its scope of relief was limited to either affirming the assessment or 

setting the assessment aside and ordering reassessment and that none of the relief 

requested by appellants was authorized by statute. See Minn. Stat. § 429.081 (2014). It

also concluded that appellants waived their right to appeal by paying the special 

assessment. This appeal follows.

D E C I S I O N

A defendant may move the district court to dismiss a case, and if “matters outside 

the pleading[s] are presented to and not excluded by the [district] court, the motion shall 

be treated as one for summary judgment.” Minn. R. Civ. P. 12.02. Because the district 

court considered facts outside the pleadings in reaching its decision, we treat its decision 

as one of summary judgment. We review summary-judgment decisions de novo and 

must determine whether the district court properly applied the law and whether there are 

genuine issues of material fact that preclude summary judgment. Dickhoff ex rel. 

Dickhoff v. Green, 836 N.W.2d 321, 328 (Minn. 2013). There are no genuine issues of 

material fact here. It is undisputed that appellants paid the special assessment prior to 

filing an appeal in the district court. We therefore determine “whether the [district] court 

erred in applying the law.” Antone v. Mirviss, 720 N.W.2d 331, 334 (Minn. 2006). 
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I.

Both parties address whether paying a special assessment prior to filing an appeal 

in district court acts as a jurisdictional waiver. The district court dismissed this matter, in 

part, because it concluded that it did not have jurisdiction to consider the appeal. The 

Minnesota Supreme Court has discouraged the inexact use of the term “jurisdiction.”

See, e.g., McCullough & Sons, Inc. v. City of Vadnais Heights, 883 N.W.2d 580, 584, 590 

& n.3 (Minn. 2016) (“Jurisdiction refers to a court’s power to hear and decide disputes.” 

(internal quotations omitted)); In re Civil Commitment of Giem, 742 N.W.2d 422, 427 & 

n.6 (Minn. 2007) (distinguishing between “non-jurisdictional procedural rules” and 

subject-matter jurisdiction, which relates to the district court’s adjudicatory authority). 

Subject-matter jurisdiction presents a question of law that this court reviews 

de novo. Nelson v. Schlener, 859 N.W.2d 288, 291 (Minn. 2015). Subject-matter 

jurisdiction relates to a court’s constitutional or statutory power to adjudicate a case. 

McCullough & Sons, 883 N.W.2d at 584-85. And district courts are authorized by statute 

to determine special-assessment appeals. Minn. Stat. § 429.081. Because the district 

court is authorized to determine special-assessment appeals, we conclude that it has

subject-matter jurisdiction to consider this matter. 

Turning our attention to the merits of this appeal, appellants contend that they 

could not waive their right to challenge the special assessment because they were not 

aware, and were not notified, that payment would constitute a waiver of their appeal. In 

response, the city relies on two cases for the assertion that appellants are barred from 

appealing a special assessment that has been paid. See Rosso v. Vill. of Brooklyn Ctr., 
5

214 Minn. 364, 8 N.W.2d 219 (1943); In re Slaughter, 213 Minn. 70, 5 N.W.2d 64 

(1942). We are not persuaded that these cases apply here.

In Slaughter, the supreme court concluded that a petitioner who pays a ditch

assessment prior to filing an appeal waives any objections to the assessment proceedings 

on jurisdictional grounds, unless the petitioner can prove that the payment was made 

under duress or coercion. 213 Minn. at 74, 5 N.W.2d at 66-67. But the rule in Slaughter

applied to ditch assessments, which were governed by a different statutory scheme. 

Id.;see also Minn. Stat §§ 429.01-.29 (1941) (regulating special assessments); Minn. Stat. 

§§ 6634-6926 (Supp. 1940) (regulating drainage law and ditch assessments).

In Rosso, landowners paid the first of five annual installments of a special 

assessment in 1939, but they did not appeal the special-assessment resolutions until 1942. 

214 Minn. at 366-67, 8 N.W.2d at 220. The district court dismissed the case, holding that 

the landowners “could not maintain a suit in equity to enjoin the collection of the 

assessments, because the law afforded them an adequate remedy to contest the 

assessments.” Id. at 368, 8 N.W.2d at 221. After the supreme court concluded that the 

district court’s dismissal was not erroneous, in dictum, it stated:

It might also be suggested here that, in view of the fact 

that plaintiffs paid a portion of their [special] assessments, 

they thereby waived any objection they might have had to the 

[special-assessment] proceedings on jurisdictional grounds. 

The fact that the payments were made “under protest” is 

immaterial, unless there is evidence that such payments were 

made under duress or coercion.

Id. (citing Slaughter, 213 Minn. at 74, 5 N.W.2d at 67).
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Judicial dictum is an expression of the court’s opinion on a question “directly 

involved and argued by counsel though not entirely necessary to the decision.” Brink v. 

Smith Cos. Constr., 703 N.W.2d 871, 877 (Minn. App. 2005). Dictum that “contains an 

expression of the opinion of the court” is entitled considerable weight. Id. But it is not 

binding. Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 808 (Minn. App. 2000), review 

denied (Minn. Sept. 26, 2000).

We conclude that neither Slaughter nor Rosso is binding on the matter before us. 

The rule’s application in Rosso is judicial dictum. And Slaughter did not directly apply 

the rule to special assessments. We may also “affirm summary judgment on alternative 

theories presented but not ruled on at the district court level.” Nelson v. Short-ElliotHendrickson, Inc., 716 N.W.2d 394, 402 (Minn. App. 2006), review denied (Minn. Sept. 

19, 2006). Because Slaughter and Rosso do not bind us, and because the district court 

determined that “[n]one of [appellants’] forms of relief are authorized by the statute,” the 

plain language of the statute guides our decision. See Pecinovsky, 613 N.W.2d. at 807-09 

(reviewing the plain language and legislative intent of a statute after determining that the 

caselaw was dicta).

The district court, in part, determined that none of appellants’ requested relief was 

authorized by statute. Statutory interpretation is a question of law that we review 

de novo. City of Brainerd v. Brainerd Invs. P’ship, 827 N.W.2d 752, 755 (Minn. 2013). 

“The object of all interpretation and construction of laws is to ascertain and effectuate the 

intention of the Legislature.” Id. When a statute’s language is plain and unambiguous, 
7

“we interpret the statute according to its plain meaning.” Id. And we will dismiss a case 

if we cannot grant effectual relief. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005).

An aggrieved person “who is not precluded by failure to object prior to or at the 

[special-assessment] hearing” may file an appeal in district court within 30 days after the 

special-assessment resolution is adopted. Minn. Stat. § 429.081. The district court’s 

scope of relief is limited to “either affirm[ing] the assessment or set[ting] it aside and 

order[ing] a reassessment.” Id.

Here, it appears that appellants satisfied the procedural requirements for filing an 

appeal because they objected to the special-assessment resolution at the city council 

meeting and filed their appeal less than 30 days after it was adopted. But the district 

court correctly determined that it has no power to grant the relief that appellants seek. 

Although appellants argue that the plain language of Minn. Stat. § 429.081 does not 

preclude aggrieved persons who have already paid a special assessment of the right to 

appeal special-assessment proceedings, it similarly does not contemplate the district court 

ordering reimbursement of a special assessment already paid. Because the district court,

given its limited scope, cannot grant appellants effectual relief and because it properly 

considered its limited scope, its dismissal of this appeal is proper.

II.

Appellants urge this court to remand this case to the district court for a 

determination of damages under the private attorney general statute on the ground that 

the city filed a frivolous motion. See Minn. Stat. § 8.31, subd. 3a (2014). But appellants 

did not bring this action under the private attorney general statute, nor are they likely to 
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be able to show benefit to the public should they prevail. See Ly v. Nystrom, 615 N.W.2d 

302, 314 (Minn. 2000) (“[T]he Private AG Statute applies only to those claimants who 

demonstrate that their cause of action benefits the public.”). And although the private 

attorney general statute contemplates an award of attorney fees, it does not provide for an 

award of attorney fees on the ground that a party brought a frivolous motion. Minn. Stat. 

§ 8.31, subds. 1, 3a (2014).

Affirmed.
CS-1

JOHNSON, Judge (concurring specially)

I agree with the opinion of the court that the district court’s decision should be 

affirmed, but I would affirm for different reasons. Specifically, I would apply the 

supreme court’s opinions in Slaughter and Rosso and would conclude that appellants 

waived their challenge to the special assessment when they paid the special assessment 

before commencing their district court action.

The district court properly relied on Slaughter and Rosso and the common-law 

doctrine of waiver. In Slaughter, the district court dismissed three challenges to a ditch 

assessment, and the supreme court affirmed on the ground that “by paying their 

assessments petitioners waived any objection they might have had to the proceedings.” 

In re Petition of Slaughter, 213 Minn. 70, 74, 5 N.W.2d 64, 67 (1942). The Slaughter 

court’s waiver analysis is not expressly limited to ditch assessments and is not based on 

any language in the statute governing ditch assessments. See id. In Rosso, the district 

court dismissed a challenge to a municipality’s special assessment, and the supreme court 

affirmed, in part because “plaintiffs paid a portion of their assessments” and “thereby 

waived any objection they might have had to the proceedings.” Rosso v. Village of 

Brooklyn Center, 214 Minn. 364, 369, 8 N.W.2d 219, 221 (1943). Waiver was one of 

two independent grounds for deciding the appeal; therefore, the waiver analysis in Rosso

is binding precedent, not dictum. See State v. Rainer, 258 Minn. 168, 178, 103 N.W.2d 

389, 396 (1960); State by Foster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 

(1956).
CS-2

This court should confine itself to the question whether the district court erred in 

its application of Slaughter and Rosso. The waiver rule of Slaughter and Rosso was the 

sole basis for the district court’s decision. In the concluding paragraph of its 

memorandum, the district court stated, “Because the Plaintiffs paid the special 

assessment in full prior to commencing their appeal under Minn. Stat. Sec. 429.081, the 

Anoka County District Court does not have jurisdiction1to consider the appeal. 

Therefore, the special assessments appeal of the Plaintiffs is dismissed without 

prejudice.” Respondent has not asked this court to affirm the district court on alternative 

grounds. In fact, respondent contends that the district court’s application of Slaughter

and Rosso “is the only issue that is relevant in this appeal.” Respondent reiterates,

“Because the District Court never reached the merits . . . of Appellants’ various legal 

arguments about the assessment process, those arguments are not appropriate or ripe for 

review on appeal.” In light of respondent’s position, I would not consider alternative 

grounds for affirmance sua sponte.

For these reasons, I concur in the judgment.

 

1

I note that the district court likely misunderstood the holdings of Slaughter and 

Rosso. I believe that Slaughter and Rosso are not concerned with the existence or nonexistence of jurisdiction, let alone subject-matter jurisdiction. I believe that the district 

court in this case likely was misled by the statement in Slaughter (which was repeated in 

Rosso) that petitioners “waived any objection they might have had to the proceedings on 

jurisdictional grounds.” Slaughter, 213 Minn. at 74, 5 N.W.2d at 67 (emphasis added); 

see also Rosso, 214 Minn. at 369, 8 N.W.2d at 221. I read Slaughter to say that the 

petitioners had an objection to the assessment proceedings that was jurisdictional in 

nature but waived it. I read Rosso in the same manner. I do not read either case to say 

that the waiver deprived the district court of jurisdiction.