author: MINGE, Judge.

text:
    Ronald STAEHELI, Relator, v. CITY OF ST. PAUL, Respondent.
    No. A06-1146.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Ronald Staeheli, Eagan, MN, pro se relator.
    John J. Choi, St. Paul City Attorney, Portia Hampton-Flowers, Assistant City Attorney, St. Paul, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

MINGE, Judge.

By a certiorari appeal, relator Ron Staeheli challenges the St. Paul City Council’s decision to cancel his license to evaluate homes under the St. Paul Truth-in-Sale-of-Housing program. Because we conclude that the decision was procedurally sufficient, was not based on error of law, was supported by substantial evidence, and was not arbitrary and capricious, we affirm.

FACTS

The St. Paul Truth-in-Sale-of-Housing (TISH) program is designed to provide prospective home buyers with information on the houses they are considering purchasing. Under the program, the city licenses TISH evaluators who inspect homes and complete disclosure reports in accordance with the city’s guidelines. The reports must be displayed for prospective buyers to see. Chapter 189 of the St. Paul City Code governs the TISH program and provides for the establishment of a TISH examining board, which has the responsibility to develop evaluator guidelines, create a code of ethics for evaluators, and take adverse action against licensed evaluators.

Relator started working as a licensed TISH evaluator in the early 1990s. Between 2002 and 2005, the St. Paul TISH program received eight complaints charging relator with inconsistencies between his disclosure reports and the city’s evaluator guidelines. Between November 2002 and January 2005, the TISH board took adverse action against relator on two occasions. Both actions were prompted by multiple complaints. On both occasions, relator’s license was suspended for 30 days and relator was placed on probation for a year. While on probation in April 2004, relator performed an evaluation that resulted in the license revocation that is the subject of this appeal.

In November 2003, relator evaluated a home on Middleton Avenue in St. Paul (the “home”). In his report, relator marked the “[w]aste and vent piping” with a “B,” meaning “[b]elow minimum standards.” With respect to that item, relator also noted “[ijmproper material and design, mixed plastics.” In item # 8, relator marked the “[ejlectrical service installation/grounding” with the letter “M,” meaning that the item meets “minimum” standards. Relator evaluated the home again in April 2004. In contrast to the 2003 evaluation, relator marked the “[wjaste and vent piping” as “M” and made no notation. Relator again rated the “[e]lec-trical service installation/grounding” as “M.”

In July 2005, a TISH administrator received a phone call from the woman who had purchased the Middleton Avenue home in September 2004. The homeowner asserted that the home had a serious plumbing problem and that relator’s April 2004 TISH evaluation was inaccurate. The administrator completed a TISH complaint and investigation report, but she simply noted “drain not up to code, no vents, report = M.” After the homeowner’s initial call, code-enforcement inspectors inspected the home. The inspectors determined that relator’s April 2004 disclosure report inaccurately evaluated the home’s “[w]aste and vent piping” and electrical service-mast installation. The inspectors took photographs of the plumbing and electrical problems. After the inspectors’ evaluation, TISH sent relator a formal complaint identifying the deficiencies in his April 2004 disclosure report.

Several days later, TISH administrators received another oral complaint from the homeowner, which the homeowner reduced to writing. The homeowner reported that relator had called her and offered to resolve the charges privately, but she refused. Ten minutes later, the homeowner received a phone call from a female who identified herself as “Susan Brown from the City Attorneys office.” The caller claimed to be investigating the TISH complaint and asked numerous questions about it. The caller refused to answer the homeowner’s questions and abruptly ended the conversation.

In August 2005, a city employee met relator, relator’s son, the homeowner, and her plumber at the home so that relator could personally observe the home’s plumbing and electrical deficiencies. Although the homeowner told relator that he could not videotape her property, while she was in the basement with the others, relator attempted to videotape documents on the kitchen table. The homeowner also reported that relator was “very angry, abrupt, [and] making accusations about others who might have been involved in assessing the plumbing issues.”

On November 4, 2005, TISH sent relator notice that the TISH board intended to consider adverse action. The notice scheduled a disciplinary hearing for November 29. Relator requested a continuance, and the hearing was reset to January 10, 2006. A hearing examiner conducted relator’s disciplinary hearing. The TISH board then deliberated. On February 8, by a 4-1 vote, the board adopted findings and revoked relator’s TISH license. Relator appealed to the St. Paul City Council. The City Council held a public hearing in April 2006, and, based on the record of the TISH board, confirmed the board’s decision. The mayor approved the decision. This certiorari appeal follows.

ISSUES

I. Did the city’s decision deprive relator of procedural due process?

II. Is the city’s decision based on an error of law?

III. Is the city’s decision supported by substantial evidence?

IV. Was the city’s decision arbitrary and capricious?

ANALYSIS

City council action is quasi-judicial and subject to certiorari review “if it is the product or result of discretionary investigation, consideration, and evaluation of evidentiary facts.” Pierce v. Otter Tail County, 524 N.W.2d 308, 309 (Minn.App.1994), review denied (Minn. Feb. 3, 1995). Certiorari review is limited to “questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.” Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992) (quotation omitted). As a reviewing court, we will not retry facts or make credibility determinations, and we will uphold the decision “if the lower tribunal furnished any legal and substantial basis for the action taken.” Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn.App.1996) (quotation omitted).

I.

The first issue is whether the city of St. Paul deprived relator of procedural due process. This court reviews the procedural due process afforded a party de novo. Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn.App.1999), review denied (Minn. July 28, 1999). Both the United States Constitution and the Minnesota Constitution provide that no person shall be deprived of “property without due process of law.” U.S. Const, amend. XIV, § 1; Minn. Const, art. I, § 7. The parties do not dispute that the city deprived relator of a property interest by revoking his TISH license and that the city was required to afford relator procedural due process. See, e.g., Trumbull Div., Owens-Corning Fiberglass Corp. v. City of Minneapolis, 445 F.Supp. 911, 916 (D.Minn.1978) (concluding that a city’s failure to renew an asphalt-manufacturing license deprived the plaintiff of a property interest).

Generally, due process requires adequate notice and a meaningful opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). But adequate notice and a meaningful opportunity to be heard are flexible concepts depending on the circumstances. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). “There is little disagreement ... that municipalities, when they act as licensing bodies, may be subject to the requirements of due process; but courts have differed sharply on what particular requirements may apply in any given situation.” Trumbull Div., 445 F.Supp. at 915. We consider three factors to determine the due process rights of relator:

[f]irst, the private interest that will be affected by the official action; second the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. at 903.

Relator’s license is important to his livelihood and constitutes a substantial private interest, the deprivation of which is accorded the protection of procedural due process. Relator argues that the decision to cancel his evaluator’s license deprived him of procedural due process in three ways.

A. Length of the TISH Hearing

Relator contends that he was not given enough time at the TISH hearing to present evidence, cross-examine witnesses, and make his case. Relator and the city were each given 45 minutes to present their positions, which included making oral statements, presenting testimony, and cross-examining witnesses. In addition, they were allowed to place written materials and exhibits into the record. Following the initial hearing, the parties were given one week to submit additional documents and written argument for the board’s consideration. A follow-up hearing was held, and each party was given 30 minutes to present rebuttal evidence. The time that the TISH board members used to ask and obtain answers to their questions was not counted toward either party’s time limit.

Relator contends that the 45-min-ute primary presentation, 30-minute rebuttal, and the opportunity to present written material did not permit him to adequately present his position. We are sympathetic to respondent’s concern. While efficiency may be an important and unavoidable consideration in conducting adjudicatory proceedings, there is a real danger that administrative bodies will arbitrarily exclude probative evidence based on an efficiency rationale. Cf. 22 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure: Evidence § 5219, at 299 (1978). At the same time, we recognize that municipalities are qualified to measure the costs and benefits of their procedures, and to balance these considerations against the property interests at stake. See 2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.5, at 636 (4th ed.2002). We are cautious in imposing additional procedures when the administrative body has carefully designed its procedural scheme. See id.

Here, the time limit imposed at the TISH hearing appears to have been arbitrary. There is no indication in the record that the time allotted to relator was determined on the basis of this particular dispute or that the city balanced the property interest at stake with the cost of providing additional time to relator. Given the complexity of the charges outlined in the formal complaint, the time allotted relator may have been inadequate.

But there is also no indication in the record that relator was prejudiced by the city’s time limit. Relator does not claim that he or any witnesses were unable to testify due to the time restraint, and relator has not shown that he was unable to present material evidence or that the board was unable to thoroughly consider an important issue due to the time limit. The administrative burden of permitting more time for a hearing may be minimal, and the time allotted may have been inadequate. But absent even a facial showing of prejudice, we cannot conclude that additional time would have increased the fairness of the hearing for relator, and we will not reverse and require the city to afford a new hearing with greater time available. See Minn. R. Evid. 403 (permitting the exclusion of evidence when presentation of that evidence is a “waste of time”).

Based on the record in this proceeding, we emphasize that a fair hearing is a cornerstone of due process, that the application of arbitrary, inflexible time limits has the inherent potential to prejudice a licensee’s ability to present his or her case, and that a credible claim of prejudice would constitute reversible error. A licensee’s interest in the loss of his or her livelihood is substantial compared to the modest cost of the time necessary for an adequate hearing.

B. Timely Notice

Relator also argues that the city deprived him of procedural due process by failing to provide timely notice of the January 2006 hearing or the substantive content of the hearing. “Due process requires that a defendant must be given adequate time to investigate the charges and prepare its defense.” In re License of W. Side Pawn, 587 N.W.2d 521, 523 (Minn.App.1998), review denied (Minn. Mar. 30, 1999) (quotation omitted). Relator received formal notice of the hearing date on November 4, 2005. At relator’s request, the hearing was continued to January 10, 2006. The city sent relator a letter on November 22 confirming that date. Accordingly, relator had well over a month to prepare for the disciplinary hearing.

Relator asserts that he was prejudiced and his due process right to notice was violated because the hearing was canceled shortly before January 10 and then rescheduled on short notice. The record indicates that relator requested that the January 10 hearing be delayed, that a city official emailed relator on December 28, 2005, informing him that he would “ask that the action on the 10th be delayed,” that the January 10 hearing was never canceled, and that on January 9, 2006, relator received confirmation that the hearing would not be rescheduled. Because the January 10 hearing date was never canceled, and because the record indicates that relator received notice of the date, time, location, and substance of the hearing, we conclude that the notice met the time requirement of due process.

C. Surprise Complaints

Relator also argues that he was not given adequate notice of the substantive complaints filed against him. The record indicates that relator received a detailed report from TISH, dated September 9, 2005, which recounted the history of complaints against relator, summarized the current complaints, and identified potential code violations. The document was prepared as a report to the TISH board, and relator does not dispute receipt of this report. The report sufficiently described the complaints evaluated at the hearing, and it put relator on notice of the standards under which his conduct would be evaluated, including the evaluators’ code of ethics. And, within days of the initial complaint, relator was allowed to personally inspect the home.

Relator further argues that the city presented “surprise additional complaints” at the TISH disciplinary hearing. According to relator, this additional material “added allegations that [relator] violated Minnesota [Statutes section] 609.475,” which makes it a crime to “falsely impersonate! ] a ... public official with intent to mislead another into believing that the impersonator is actually such ... official.” Minn.Stat. § 609.475 (2004). Contrary to relator’s assertion, the record does not allege that relator was charged with violating that Minnesota statute. Although, the TISH board’s ultimate findings of fact and the city council decision addresses the impersonation incident, the decision of the board was not based on the criminal statute.

On this record, we conclude that the reference to the criminal law on impersonation was not error and did not unfairly prejudice relator. We further conclude that although the report was not designed as a formal notice of charges and was not a model of clarity, it was sufficient to inform relator of the proposed action. The notice requirements of procedural due process were met.

II.

The next issue is whether the city’s decision was based on an erroneous interpretation of St. Paul’s ordinances and published guidelines.

A. Basis for Cancellation of Relator’s License

First, relator argues that under the standards established by the city of St. Paul, the record does not warrant revocation of his license. The interpretation and application of a city ordinance is a question of law, which we review de novo. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). “The opinions of the governmental authority, while entitled to consideration, are not as persuasive as they would be on questions of fact within its purview.” Id.

Several sources of legal authority are relevant to revoking a TISH evaluator license: chapter 310 of the St. Paul Legislative Code (SPLC), chapter 189 of the SPLC, and the TISH board’s Guidelines for Disciplinary Action.

1. Saint Paul Legislative Code, Chapter 310

Chapter 310 of the SPLC establishes uniform license procedures for the city of St. Paul. Chapter 310 authorizes the city council to take adverse action against a licensee who “has violated, or performed any act which is a violation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the licensed activity.” St. Paul, Minn., Legislative Code § 310.06(b)(6)(a) (1999) (hereinafter “SPLC”).

The SPLC sets forth a presumptive-penalty scheme for license violations. Under chapter 310, presumptive penalties are calculated according to the “[t]ype of [violation” and the number of times a licensee has “appeared] before the [city] council.” SPLC § 310.05(m), (v) (2005). Unless the violation is a felony or results in “[d]eath or great bodily harm,” revocation of a license is appropriate only after three prior appearances. SPLC § 310.05(m). Deviation from the presumptive penalties is permissible for “substantial and compelling reasons,” so long as the council provides “written reasons” to explain the departure. Id.

2. Saint Paul Legislative Code, Chapter 189

In addition to establishing the TISH board and delegating certain responsibilities to the board, chapter 189 of the SPLC governs the conduct of TISH licensees. Section 189.14 provides: “(1) Each truth-in-sale of housing evaluator, when preparing a disclosure report, shall set forth any structural defects, any immediate hazards to health and safety, and/or other deviation(s) from the standards set forth in the evaluator guidelines.” SPLC § 189.14(a)(1) (2004). Section 189.15 describes the duties of TISH evaluators as follows:

(a) Each evaluator is required to:
(1) Comply with the code of ethics;
(2) Complete the disclosure report in accordance with the standards in the evaluator guidelines;
(b) Failure to comply -with any one or more of these duties shall be sufficient cause for the board to take adverse action against the license or licensee....

SPLC § 189.15 (2004).

3. St. Paul’s TISH Guidelines for Disciplinary Action

The final source of authority is the city’s TISH Guidelines for Disciplinary Action. The city code delegates to the TISH board the responsibility to: develop, adopt, and issue evaluator guidelines; develop and enforce a code of ethics for evaluators; and take necessary adverse action against licensed evaluators. SPLC § 189.10(a) (2004). Pursuant to this authority, the TISH board developed and published guidelines that the city council adopted in April 2002. These guidelines govern the board’s imposition of adverse action on TISH licensees. In relevant part, the guidelines provide:

An evaluator or evaluator’s license issued under Chapter 189 may be denied, revoked, suspended, canceled, not renewed or subject to other adverse action if the evaluator:
2. Has intentionally or by established pattern violated any of the provisions of Chapter 189 or any duties specifically required by Sec. 189.15.
8. Has been the subject of substantiated complaints for his/her evaluation services.
9. Has demonstrated a pattern of incompetency in conducting evaluations.

St. Paul, Minn., Truth-in-Sale of Housing Board Guidelines for Disciplinary Action 1 (adopted Apr. 17, 2002) [hereinafter “TISH Guidelines”]. These guidelines also establish presumptive penalties for each type of violation, depending on the “class” of the violation. The presumptive-penalty scheme is similar to the scheme established in chapter 310 of the SPLC, but it differs in several respects. Under the guidelines’ presumptive scheme, each violation is classified on a scale of one to four. Id. at 3. A Class 1 violation is “one where the condition that was not noted is a condition which has a direct and potentially serious effect on the health and safety of the occupants.” Id. at 2. In contrast, Class 4, “pattern and practice violations,” are “those wherein the evaluator shows a pattern and practice of behavior detrimental to the program or contrary to professional conduct.” Id. at 3. “This could include ... an excessive number of founded complaints, which may or may not qualify for Class 1 or Class 2 violations, but which show a lack of care in completing the reports according to the Evaluator Guidelines or in conformance with Chapter 189....” Id. Like the language of chapter 310, the TISH Guidelines state that the enumerated “penalties are presumed to be appropriate for every case,” but that the board may depart from the presumptive penalties for “substantial and compelling reasons,” so long as the board “provide[s] written reasons that specify why the penalty selected was more appropriate.” Id.

Here, the legal basis for the board’s cancellation of relator’s license is not clearly stated in the board’s written decision. Finding seven comes closest to stating the explicit legal authority on which the board’s decision is based, stating:

The TISH Board’s disciplinary procedure was adopted based on Saint Paul Legislative Code Chapter 310, Uniform License Procedures. It provides that for a fourth violation resulting in adverse action the Board may impose any of the following penalties: revocation or suspension of the TISH license for a fixed period of time, refusal to renew the TISH license, or cancellation of the TISH license permanently. These guidelines are consistent with Saint Paul Legislative Code Chapter 310.05(m)(2) ..., which provides that the presumptive penalty for a fourth violation is revocation.

(Emphasis added.)

Finding seven is unclear. It invokes the “Board’s disciplinary procedure[s],” but it incorrectly describes the content of those procedures by stating that chapter 310’s presumptive-penalty scheme “provides that for a fourth violation resulting in adverse action the board may ... cancel[ ][a] TISH license permanently.” Although the board’s disciplinary procedures and guidelines for disciplinary action do not contain a parallel provision, the board’s guidelines for disciplinary action do state that when an evaluator “[h]as been the subject of substantiated complaint(s)” or “[h]as demonstrated a pattern of incompetency,” the presumptive penalty for a Class 4 violation is cancellation of the evaluator’s license. TISH Guidelines at 1. A Class 4 violation includes “an excessive number of founded complaints.” Id. at 3.

It is unclear what legal authority the board relied on for its decision, but we conclude that it is logical to read the decision as invoking the guidelines’ standards and presumptive scheme, as opposed to the scheme in chapter 310. Finding one supports this conclusion by emphasizing the recurring complaints filed against relator. The board’s closing statement that it canceled relator’s license due to “the long-term repetitive nature of the violations of [relator]” also supports our interpretation of the board’s decision. The board’s findings include eight substantiated complaints of report inconsistency and another substantiated complaint involving misconduct. Thus, the board’s determination, though unclearly expressed, is not outside the disciplinary guidelines.

Relator argues that because he only appeared before the city council and adverse action was taken on two previous occasions, the board’s decision was legally erroneous. Relator’s argument assumes that the board was limited by SPLC chapter 310 in penalizing relator. But the SPLC delegates to the board the authority to develop and enforce evaluator guidelines, and, accordingly, the board was permitted to take adverse action pursuant to TISH Guidelines. Relator does not appear to challenge the adoption of the guidelines themselves and does not argue that the guidelines are subject to the scheme in chapter 310. We also note that the board’s “[djetermination” emphasized the “serious nature” of relator’s violations, the “long-term repetitive nature” of the violations, relator’s “ongoing misunderstanding of the TISH program and its mission,” and that relator was on probation at the time of the inspection at issue. Even if the board’s decision were based on chapter 310 of the SPLC, these considerations provide “substantial and compelling reasons” to depart from the presumptive penalty.

Because we interpret the board’s decision to be based on the TISH Guidelines, and the guidelines contain sufficient legal authority for the board’s action, we conclude that the board did not exceed its authority in terminating relator’s license.

B. Writing Requirement

Next, relator argues that cancellation of his license must be reversed because the board’s decision was based on a telephone complaint. TISH Bylaws state that “[a] complaint must be in writing.” St. Paul, Minn., Truth-in-Sale of Housing Board Bylaws art. IX, § 3 (adopted Apr. 17, 2002) [hereinafter “TISH Bylaws”]. Relator contends that because the initial homeowner complaint was made by telephone and reduced to writing by a TISH administrator, the license cancellation was improper. The city construes “complaint” as a written complaint used to place an evaluator on notice of possible adverse action and asserts that city employees can lodge a complaint.

TISH Bylaws provide that “[t]he complain[ant] must [either] ... directly represent! ] the ... buyer or the seller of the dwelling ... or ... [be] employed by, or directly represent! ], the City of Saint Paul.” TISH Bylaws contemplate city employees as complainants, and because complaints must be in writing, the TISH Bylaws contemplate that, in some cases, a city employee will write a complaint. We conclude that the city’s interpretation of the TISH Bylaws is reasonable and entitled to deference. Moreover, the primary purpose of the writing requirement is to put evaluators on notice of the basis for complaints filed against them. Here, relator cannot show that he was prejudiced by the city’s reduction of the telephonic complaint to writing or that he was inadequately notified of the underlying complaints.

C. Staleness of Disclosure Report

Relator also argues that his report, which was the subject of the complaint and constitutes the basis of the board’s decision, was stale and could not be the basis for sanctions against him. SPLC § 189.02(a) (2004) states: “A disclosure report is valid for three hundred sixty-five (365) consecutive days from the date of its issuance.” SPLC § 189.02(a). Relator argues that because the April 2004 report was over a year old at the time it was investigated, the report was “invalid” and could not form the basis of a violation. But relator’s interpretation of the provision ignores the entirety of section 189.02 and surrounding sections of chapter 189. For instance, section 189.02(d) (2004) provides: “The report is valid for only one sale during its three hundred sixty-five (365) consecutive day lifetime.” (Emphasis added.) Section 189.03 (2004) uses the term “valid” five times and suggests that the drafters’ intention was to require individuals selling homes to obtain a new disclosure report every year. The language of section 189.02. does not support a reading that would insulate any deficient disclosure report from becoming the basis of a complaint against an evaluator as soon as a year had expired. It is not a statute of limitations for relator’s responsibilities. We conclude that the board did not err in basing its action on relator’s 2003 and 2004 disclosure reports.

III.

The next issue is whether the city’s decision to cancel relator’s license is supported by substantial evidence. Substantial evidence is: “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; and (5) evidence considered in its entirety.” CUP Foods, Inc., v. City of Minneapolis, 633 N.W.2d 557, 563 (Minn.App.2001), review denied (Minn. Nov. 13, 2001). Substantial judicial deference is given to administrative fact-finding. Id. Relator has the burden to prove that a decision is unsupported by substantial evidence. Id.

Although relator contests each of the board’s seven findings, he only challenges the sufficiency of the evidence to support findings three through six.

A. Findings 3 and U

Relator challenges findings three and four, arguing that no substantial evidence supports the findings that his April 2004 evaluation improperly reported the condition of the electrical service drop and the plumbing system.

With respect to the electrical service drop, the board’s findings were based on the testimony of a code-enforcement inspector and the homeowner, in addition to documentary evidence, which included the repairman’s notes and the inspector’s photographs. The homeowner testified that the electrical service drop was in the same condition at the time of the inspection as when she bought the home, and the inspectors testified that it did not comply with city code. Relator suggests that because of the significant time between his evaluation and the code-enforcement inspection, the electrical service mast must have been damaged in the interim time period, following his evaluation. But the board did not find relator’s theory credible, and relator offered no direct evidence to support his position.

With respect to the basement plumbing issues, the city offered the testimony of the homeowner and an inspector, photographs, and the plumbing-repair estimate. This evidence established that the basement waste piping was not sealed properly, that improper material was used for the main waste line, that there was visible waste on the outside of that line, and that relator’s evaluation was not consistent with the city code. Relator asserts that the problems with the basement plumbing were not visible in April 2004. But relator’s earlier report clearly noted some of the plumbing problems, which suggests that the problems were visible at the time of relator’s second inspection. Moreover, relator offered no direct evidence to show that the problems cited in the complaint were not visible or arose in the interim period. On this record, we conclude that findings three and four are supported by substantial evidence.

B. Findings 5 and 6

Relator argues that there is no substantial evidence to support findings five and six, which state that relator violated the evaluators’ code of ethics by treating the homeowner disrespectfully and videotaping against her wishes. Relator also asserts that there is no substantial evidence to support the finding that he violated the evaluators’ code of ethics by facilitating the call in which a woman claimed to be from the city attorney’s office.

The code of ethics proscribes professional and behavioral misconduct, stating: “The evaluator, while acting as such, will not engage in conduct that in any way is in violation of any law or ordinance, or is in contravention of good order and decorum.” St. Paul, Minn., Code of Ethics for Truth-in-Sale of Housing Evaluators (2003). The record is clear that relator videotaped inside of the home against the homeowner’s express wishes. At the time of the videotaping incident, relator was in the home in his capacity as a TISH evaluator so that code-enforcement inspectors could give him notice of the deficiencies in his prior report. The homeowner testified that she had asked relator not to videotape inside the home, and the code inspector’s report of the inspection corroborates this request. Yet, relator introduced the videotape into evidence and clearly established his noncompliance with the request. Relator testified that he did not know the camera was on, but the board did not credit his testimony. Furthermore, the homeowner’s letter dated August 2, 2005, indicates that relator was disrespectful, angry, and abrupt with her.

There is also circumstantial evidence supporting the finding that relator facilitated the false and harassing phone call allegedly from the city attorney’s office. The written complaint indicates that the day before relator was scheduled to view the home with the inspectors, the homeowner received a phone call from “Susan Brown,” allegedly from the city attorney’s office. The homeowner received this call about ten minutes after relator called to attempt to settle the dispute privately. The female caller asked explicitly about the dispute with relator and elicited information about an inspection performed by another firm. The following day, relator asked the homeowner about the other inspection. The homeowner testified that relator would have had no way of knowing of the other inspection had he not been privy to the offending phone call. Finally, the city introduced evidence that the city attorney’s office did not employ an individual named Susan Brown. We do not reweigh conflicting evidence or re-judge the credibility of testimonial evidence. Based on the foregoing evidence, we conclude that findings five and six are supported by substantial evidence.

IV.

Finally, relator argues that cancellation of his TISH license was arbitrary and capricious. A decision is arbitrary and capricious only if the decision-making body: “(1) ... relied on factors not intended by the ordinance; (2) entirely failed to consider an important aspect of the issue; (3) offered an explanation that conflicts with the evidence; or” (4) arrived at a decision that “is so implausible that it could not be explained as a difference in view or the result of the city’s expertise.” Rostamkhani 645 at 484.

Relator’s arbitrary-and-capricious argument is not well developed and is based on little more than assertion. He has not shown that the TISH board or the city council relied on factors not intended by the city code or that either decision-making body failed to consider the merits of the dispute. Also, relator has not shown that the board or city council decisions are without substantial evidentiary support based on the entire record.

DECISION

Because the city’s decision did not violate relator’s right to procedural due process, was not based on error of law, is supported by substantial evidence, and was not arbitrary and capricious, we affirm.

Affirmed.

      . Relator asserts that the Minnesota APA provides the applicable scope of review on appeal. See Minn.Stat. § 14.69 (2006). However, the APA’s plain language requires a decision-making body to possess "statewide jurisdiction” to qualify as an "agency” under the Minnesota APA. See City of Mankato v. Mahoney, 542 N.W.2d 689, 693 (Minn.App.1996). The city of St. Paul does not possess such jurisdiction. We are aware that some of our decisions cite the APA as the applicable standard of review. See, e.g., Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 483 (Minn.App.2002). In any event, the APA’s scope of review is similar to the common law scope of review on certiorari. Thus, the same standard applies regardless of the applicability of APA.

      . The parties do not dispute the applicable version of the SPLC. We note that section 310.05 was amended in April of 2005, after the conduct forming the basis of the license termination, but before the TISH board's decision. The 2005 amendment appears to have enacted a presumptive penalty scheme that was not in effect at the time of relator’s conduct. Here, because the parties do not dispute the applicability of that scheme to resolution of the current dispute, we apply and cite the 2005 version of section 310.05. Likewise, we cite the version of section 310.06 enacted in 1999 and substantially unchanged until November 2006.

      . The parties do not dispute the applicable version of SPLC chapter 189. Accordingly, we cite the version supplied by the parties and last altered in 2004, prior to the city’s termination of relator’s TISH license.

      . Relator correctly argues that the board only took adverse action, and relator only appeared before the city council, on two prior occasions. Finding one states that there are three prior hearings before the board. But because we interpret the board’s decision as based on its disciplinary guidelines, and not chapter 310, we conclude that the board's factual error as to the number of prior hearings is not prejudicial.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    STATE of Minnesota ex rel. Speaker of House of Representatives Hon. Steve SVIGGUM, et al., petitioners, Appellants, v. Tom HANSON in his official capacity as Commissioner of Finance or his successor, et al., Respondents.
    No. A06-840.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Erick G. Kaardal, William F. Mohrman, Mohrman & Kaardal, P.A., Minneapolis, MN, for appellants.
    Lori Swanson, Attorney General, Kenneth E. Raschke, Jr., Assistant Attorney General, St. Paul, MN, for respondents.
    Peter S. Wattson, Senate Counsel, Research, and Fiscal Analysis, St. Paul, MN, for amicus curiae Eighty-fourth Minnesota Senate.
    Considered and decided by LANSING, Presiding Judge; WORKE, Judge; and ROSS, Judge.
   OPINION

LANSING, Judge.

This appeal arises out of a district court order authorizing the commissioner of finance to issue checks and process funds necessary to continue core functions of the executive branch after the legislature ended its regular session in May 2005 without funding many executive-branch agencies for the 2005-07 biennium. The temporary funding order expired on July 14, 2005, when the governor signed a bill funding base-level operations for previously unfunded government agencies, provided that the appropriations were retroactive to July 1, 2005, and expressly superseded the district court’s appropriations. More than a month later, a bipartisan group of thirty-two legislators brought this quo warranto action challenging the constitutionality of the commissioner’s disbursement of funds without a legislative appropriation. The district court denied the petition, and the group of legislators appeals.

FACTS

The Minnesota Legislature ended the 2005 legislative session on May 23, 2005, without appropriating the money necessary to fund significant executive-branch functions for the fiscal biennium beginning on July 1, 2005. The same day, the governor exercised his constitutional power to call a special session to allow the legislature to negotiate the necessary appropriations bills.

On June 15, while the legislature was still in special session, the attorney general filed a petition in district court seeking both a declaration that the executive branch must undertake core functions required by the state and federal constitutions and an order requiring the commissioner of finance to fund those functions. Also on June 15, the governor filed a petition to intervene, requesting similar relief. Although the president of the senate and the speaker of the house were served with an order to show cause why the attorney general’s petition should not be granted, neither body took part in the temporary-funding proceedings.

On June 23, the district court issued an order authorizing the commissioner of finance to continue to fund core government functions in the event the legislature failed to appropriate the necessary funds before the next fiscal biennium. The order provided that it would remain effective until the earliest of three dates: July 23, 2005; the date of a budget enactment that would fund all core functions after June 30, 2005; or the effective date of a further order of the court. The district court also appointed a special master to identify core government functions.

Various agencies, programs, and individuals filed petitions for funding, and the special master recommended which functions should be funded. The district court adopted the special master’s recommendations and issued orders to disburse funds. Under this special-master structure, the commissioner disbursed state funds totaling more than $569,000,000.

On July 8 the legislature appropriated funding, retroactively to July 1, for base-level operations of all agencies whose biennial appropriations had not yet been approved. The governor signed the bill into law on July 9. On July 13 the legislature passed the last remaining biennial appropriation bills. Each bill the legislature passed while in special session contained virtually or exactly the following language:

Appropriations in this act are effective retroactively from July 1, 2005, and supersede and replace funding authorized by order of the Ramsey County District Court ... as well as by Laws 2005 1st Special Session chapter 2, which provided temporary funding through July 14, 2005.

On July 13 and 14 the governor signed the bills into law. On July 26 the district court issued an order providing that the temporary-funding order expired by its own terms as of July 14.

At the end of August, the bipartisan legislative group (legislators) petitioned the supreme court for a writ of quo war-ranto against Peggy Ingison, who was then the commissioner of finance, seeking a declaration that the funds the commissioner disbursed under the district court’s authorization without a legislative appropriation were unconstitutional and an order requiring the commissioner to cease disbursements. The supreme court dismissed the petition without prejudice, allowing the legislators to file it in district court. The legislators filed an amended petition in district court, and they and the commissioner filed reciprocal motions for sanctions.

The district court denied the petition for quo warranto, holding that although the legislators had taxpayer standing to restrain the unlawful use of public funds, quo warranto was not the appropriate action to challenge past official conduct. The court noted that quo warranto was instead intended to remedy “a continuing course of unauthorized usurpation of authority.” The court also held that the case was moot because it did not present a live case or controversy for which judicial relief was available, and it was not capable of repetition yet likely to evade review. Further, the court held that the legislators’ petition was barred by laches because they failed to intervene in the temporary-funding proceedings and instead waited until it was too late for the court to grant relief. Finally, the court concluded that the constitution did not bar judicial action to preserve core government functions pending the necessary appropriations by the legislature. The district court also denied both the legislators’ and the commissioner’s motions for sanctions.

This appeal follows.

ISSUES

I. Are the legislators’ claims barred by the doctrine of laches?

II. Is quo warranto an appropriate action to challenge the constitutionality of official conduct that is not ongoing?

III. Are the issues raised in this litigation justiciable?

IV. Did the district court abuse its discretion by denying the legislators’ motion for attorneys’ fees and costs incurred in responding to the commissioner’s motion for sanctions?

ANALYSIS

I

As a preliminary matter, we consider the legislators’ challenge to the district court’s determination that their petition is barred by the doctrine of laches. The equitable doctrine of laches is available to prevent the granting of relief to a party who has unreasonably delayed the assertion of a legal right and has thereby prejudiced others and made it inequitable for the court to grant the relief requested. Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953); Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952).

The district court determined that the doctrine of laches precluded the granting of equitable relief because the legislators had notice of the temporary-funding proceedings but failed to assert an objection. Instead, they waited approximately six weeks from the time the governor signed the last appropriation bill into law before asserting their rights, thereby prejudicing respondents. The legislators argue that they were unable to participate because they are precluded during the legislative session from becoming parties to a legal proceeding by the provisions of Minn.Stat. § 3.16 (2006).

We reject the legislators’ argument that they are precluded from participating as parties in a legal proceeding while the legislature is in session. Section 3.16 does not prohibit legislators from participating in judicial proceedings. It only authorizes the postponement of a judicial or quasi-judicial proceeding in which a legislator is involved as a party, attorney, or witness while the legislature is in session. The section states:

No cause or proceeding ... in which a member ... of ... the legislature is a party, attorney, or witness shall be tried or heard during a session of the legislature or while the member ... is attending a meeting of a legislative committee or commission when the legislature is not in session. The matter shall be continued until the legislature or the committee or commission meeting has adjourned.
The member ... may ... waive this privilege. The cause or proceeding ... may then be tried or heard at a time that will not conflict with legislative duties.

Id. Section 3.16 thus affords legislators a privilege, which they are free to exercise or to waive, but it does not insulate them from a failure to appear in the proceedings and preserve their options. That said, a decision not to appear does not result in laches unless it unreasonably delays the assertion of their right to raise their constitutional challenge, prejudices others, and makes it inequitable for the court to grant the relief requested.

The legislators may have forgone an opportunity to participate in the initial proceeding that resulted in the district court’s approval of the commissioner’s disbursement of public funds. But on this record, we cannot conclude that they unreasonably delayed the assertion of their rights to question the constitutionality of the resulting decision. They may have reasonably decided not to become individually or collectively enmeshed in a judicial proceeding while they were trying to pass a budget. Furthermore, the commissioner has not established that she was prejudiced by the delay. For these reasons, we conclude that the doctrine of laches does not preclude relief for the legislators’ request for a writ of quo warranto. Accordingly, we reverse the district court’s determination on laches.

II

The writ of quo warranto is a special proceeding designed to correct the unauthorized assumption or exercise of power by a public official or corporate officer. State ex rel. Danielson v. Village of Mound, 234 Minn. 531, 542, 48 N.W.2d 855, 863 (1951) (defining quo warranto as remedy to correct “usurpation, misuser, or nonuser of a public office or corporate franchise”). The writ requires an official to show before a court of competent jurisdiction by what authority the official exercised the challenged right or privilege of office. State ex rel. Burnquist v. Village of North Pole, 213 Minn. 297, 303, 6 N.W.2d 458, 461 (1942). The writ has both a statutory and a common-law basis. Danielson, 234 Minn, at 537-38, 48 N.W.2d at 860; see generally Stefan A. Riesenfeld et al., Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota, 33 Minn. L.Rev. 569, 571 (1949) (describing history of writ of quo warranto).

Typically, quo warranto is an appropriate action to challenge a person’s title to or qualifications for office or the constitutionality of a statute under which a person holds office. State ex rel. Todd v. Essling, 268 Minn. 151, 151, 128 N.W.2d 307, 309 (1964) (involving quo warranto proceeding challenging authority of individual claiming office as member of Board of Tax Appeals); Miller v. Berg, 190 Minn. 352, 356, 251 N.W. 682, 683 (1933) (stating quo warranto proper proceeding to determine whether person elected to public office is citizen and eligible to hold office); State ex rel. Douglas v. Westfall, 85 Minn. 437, 438, 89 N.W. 175, 175 (1902) (involving quo warranto proceeding inquiring into constitutionality of statute by which title examiner claimed right to office); see generally Stefan A. Riesenfeld et al., Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota, 37 Minn. L.Rev. 1, 4-7 (1952) (discussing action subject to control by-writ of quo warranto).

Quo warranto is not ordinarily available, on the other hand, to challenge the manner of exercising powers conferred by law or the validity of conduct that would result in liability but would not be grounds for forfeiture of a public office or corporate franchise. See State ex rel. Lommen v. Gravlin, 209 Minn. 136, 137, 295 N.W. 654, 655 (1941) (stating that “quo warranto is not allowable as preventative of, or remedy for, ‘official misconduct and cannot be employed to test the legality of the official action of public or corporate officers’ ”); State ex rel. Childs v. Bd. Com’rs of Crow Wing County, 66 Minn. 519, 530, 69 N.W. 925, 926 (1897) (distinguishing between proper use of quo war-ranto to correct municipal corporation’s “permanent[] and continuous[ ]” exercise of jurisdiction beyond its territory and “mere official misconduct ... of a casual or temporary character” for which “quo warranto will not lie”); see also State ex rel. Grozbach v. Common Sch. Dist. No. 65, 237 Minn. 150, 159-60, 54 N.W.2d 130, 136 (1952) (concluding quo warranto was proper proceeding to test validity of organization of consolidated school district but not validity of consolidated district’s assumption of bonded indebtedness).

Minnesota courts have recognized, nonetheless, that “[a]cts in excess of power may undoubtedly be carried so far as to amount to a misuser of [a public office or corporate franchise] and a ground for its forfeiture.” State ex rel. Clapp v. Minn. Thresher Mfg. Co., 40 Minn. 213, 226, 41 N.W. 1020, 1025 (1889). But “[h]ow far [unauthorized conduct] must go to amount to [forfeiture] the courts have wisely never attempted to define, except in very general terms, preferring the safer course of adopting a gradual process of judicial inclusion and exclusion as the cases arise.” Id.

Through this gradual process of judicial inclusion and exclusion, the quo war-ranto remedy has expanded beyond its initial limits of addressing only conduct that justified forfeiture of a public office or corporate franchise. Quo warranto will now lie against unauthorized conduct that threatens a substantial public injury but is not necessarily grounds for dissolution of a corporate franchise or ouster from office. See, e.g., Rice v. Connolly, 488 N.W.2d 241, 242-43 (Minn.1992) (issuing quo warranto writ invalidating legislation authorizing teleracing and telephone betting and requiring discontinuance of all off-track betting); State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 783 (Minn.1986) (issuing quo warranto writ invalidating statute by which legislature transferred responsibilities of state treasurer to commissioner of finance and requiring that transferred functions be returned to state treasurer); Childs, 66 Minn, at 529, 69 N.W. at 926 (stating that “[i]f an information in the nature of quo warranto is the proper remedy for ousting or dissolving a municipal corporation in toto, we see no reason in principle why it will not lie to oust such a corporation from specific territory over which it is wrongfully exercising jurisdiction, or to dissolve it so far as it covers that territory”).

Despite this gradual evolution, Minnesota courts have been consistent in declining to apply quo warranto to an unauthorized exercise of power that is not ongoing; courts have refused to extend the doctrine of quo warranto to test the legality of either pending conduct or official conduct that has been completed. See, e.g., State ex rel. Graham v. Klumpp, 536 N.W.2d 613, 614 n. 1 (Minn.1995) (involving challenge to governor’s request for attorney general to prosecute certain individuals and seeking dismissal of indictments obtained by attorney general); State ex rel. Olsen v. Bd. of Control, 85 Minn. 165, 166, 88 N.W. 533, 533-34 (1902) (involving proceedings against board of control to test constitutionality of statutory transfer of school management to newly created board of control); of. AFSCME Council 6 v. Sundquist, 338 N.W.2d 560, 564 (Minn.1983) (stating that quo warranto petition seeking to prevent enforcement of legislation increasing government employees’ existing contribution to pension funds did not “fit[ ] within the nature of quo warranto”).

The legislators contend that in Mattson the supreme court extended the use of quo warranto to challenge past conduct. But Mattson involved a challenge to a continuing course of conduct — the transfer of functions from the state treasurer to the commissioner of finance. 391 N.W.2d at 788-80. Had the writ not issued, the commissioner of finance would have continued to exceed the powers of his office by exercising the functions of the state treasurer. Mattson thus weighs against the argument that quo warranto is available to adjudicate past violations that have expired. The legislators have cited no cases in which quo warranto was appropriately used to correct conduct that was not ongoing, and they have not demonstrated an ongoing usurpation of power by the commissioner.

Because it is well-established that the quo warranto remedy may be applied only to an ongoing exercise of power, we conclude that quo warranto cannot be used to challenge the constitutionality of completed disbursements of public funds. The order authorizing the commissioner to fund core executive functions expired by its own terms on July 14, 2005, after the legislature appropriated the necessary funds and the governor signed the appropriations bills. The commissioner ceased the challenged disbursements on July 14, 2005. When the legislators served the quo warranto petition more than a month later, the commissioner was involved in no ongoing conduct that could be remedied by the issuance of a quo warran-to writ.

What the legislators seek, in essence, is not a writ to correct an ongoing usurpation of power but a declaration that the judiciary lacks the power to authorize an executive officer to disburse funds without an appropriation by law. Quo warranto is not an appropriate action to attempt to obtain this relief. Despite the unsuitability of quo warranto as a procedure to challenge the constitutionality of the contested disbursements, we are reluctant, for two reasons, to dismiss this dispute solely because of the scope of the writ.

First, the supreme court has acknowledged that, despite the history and unique nature of a writ of quo warranto, the court has only recently attempted to “definitively proseribe[ ] its use or address[ ] its utility or its appropriateness in the modern judicial context.” Rice, 488 N.W.2d at 243. As a result, the court has exercised varying amounts of discretion in determining how to proceed on quo warranto petitions. See id. at 244 (describing procedural mechanisms that supreme court has used in responding to quo warranto petitions).

Second, the legislators’ difficulty in finding an appropriate procedural mechanism relates directly to the foundational issue in this litigation, which we address in Section III. That issue, which we believe is disposi-tive, is the justiciability of the legislators’ collateral challenge to the constitutionality of the commissioner’s court-approved disbursements of public funds following a legislative appropriation that is retroactive and supersedes the commissioner’s court-approved disbursements.

Ill

When it denied the writ, the district court reasoned that the legislators had limited standing and that the case was moot. Mootness and standing are overlapping doctrines that fall under the broader concept of justiciability. Erwin Chemerinsky, A Unified Approach to Jus-ticiability, 22 Conn. L.Rev. 677, 678-87 (1990). Standing “focuses primarily on the party seeking to get his complaint” resolved by the court. United States v. Richardson, 418 U.S. 166, 174, 94 S.Ct. 2940, 2945, 41 L.Ed.2d 678 (1974). Mootness, in contrast, seeks to ensure that a sufficient personal interest continues to exist throughout the litigation. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn.2005).

Justiciability doctrines — including mootness and standing — all relate, in some manner, to the court’s ability to redress an injury through coercive relief. See State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn.1996) (linking standing to availability of relief); In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989) (noting that case is moot if courts cannot “grant effectual relief’); see also Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962) (requiring judicially manageable standards for resolving a dispute). The concept of justiciability forms a threshold for judicial action and requires, in addition to adverse interests and concrete assertions of rights, a controversy that allows for specific relief by a decree or judgment of a specific character as distinguished from an advisory opinion predicated on hypothetical facts. Holiday Acres No. 3 v. Midwest Fed. Sav. & Loan Ass’n of Minneapolis, 271 N.W.2d 445, 447 (Minn.1978). When a lawsuit presents no injury that a court can redress, the case must be dismissed for lack of justiciability.

This redressable-injury requirement — and the corollary rule against advisory opinions — is rooted in constitutional text, the nature of judicial decision-making, and prudential concerns. The constitutional function of Minnesota courts is to resolve disputes and to adjudicate private rights. See Montgomery v. Minneapolis Fire Dep’t Relief Ass’n, 218 Minn. 27, 29-30, 15 N.W.2d 122, 124 (1944) (interpreting predecessor of Minn. Const, art. VI, § 3, to require that “the subject matter of the suit is a justiciable one and therefore within the competence of the district court to hear and determine”); In re Application of the Senate, 10 Minn. 78 (1865) (noting that separation-of-powers provision in Minn. Const, art. Ill, § 1, limits court to “judicial” acts). Because the nature of judicial decision-making is to resolve disputes, the “judicial function does not comprehend the giving of advisory opinions.” Izaak Walton League of Am. Endowment, Inc. v. Minn. Dep’t of Natural Res., 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977). And, as part of our tripartite constitutional structure, the judiciary must act prudentially to abstain from encroaching on the power of a coequal branch. See Sharood v. Hatfield, 296 Minn. 416, 423, 210 N.W.2d 275, 279 (1973) (cautioning courts to exercise restraint in dispute over “what is a legislative prerogative and what is a judicial function”).

In the absence of a redressable injury, Minnesota courts will exercise judicial power only in narrowly-defined circumstances. First, to prevent injury and conserve judicial resources, we will issue declaratory judgments. Minn.Stat. § 555.01 (2006). The senate counsel’s ami-cus brief encourages us to resolve this dispute using a declaratory judgment. But declaratory relief still requires a ease or controversy, and we will not issue “declarations upon remote contingencies or as to matters where the plaintiffs interest is merely contingent upon the happening of some event in the future.” Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 283, 290 N.W. 802, 805 (1940). Thus, if we lack the power to modify the district court’s appropriations decision, we cannot issue a declaratory judgment. See Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 273-74 (Minn.App.2001) (limiting declaratory relief to genuine conflicts in tangible interests).

Second, if a case is no longer redressable because it has become moot, we will issue a decision if the issue presented is capable of repetition but likely to evade review. Kahn, 701 N.W.2d at 821. The rationale for this exception is that to “abandon the case at an advanced stage may prove more wasteful than frugal.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 710, 145 L.Ed.2d 610 (2000). But the capable-of-repetition exception cannot revive a dispute that was moot before commencement of the action. Id. at 191, 120 S.Ct. at 709. When the legislators petitioned for a writ of quo warranto in August 2005, the commissioner had already allocated the court-ordered funding and the legislature had explicitly superseded and replaced the commissioner’s disbursements. Because the relevant circumstances remained the same throughout the litigation, the capable-of-repetition exception cannot be used to revive the controversy if it was not redressable at the time it was brought.

In addition, Minnesota courts will act without directly redressing an injury in at least two other circumstances. Appellate courts will answer certified questions. See, e.g., Minn.Stat. § 480.065, subd. 3 (2006) (permitting supreme court to answer questions certified by federal courts and appellate courts in other states); Minn. R.Crim. P. 28.03 (permitting district courts to certify criminal-law questions to court of appeals). But this case does not involve a certified question. Also, under special circumstances, we will issue purely prospective rulings. See State v. Baird, 654 N.W.2d 105, 110-11 (Minn.2002) (outlining function and limits of special-circumstances rule). The special-circumstances test, however, does not permit us to issue substantive decisions about injuries that we cannot redress. Instead, the test permits us to decline to redress injuries in the interests of fairness. Id.

Because none of the exceptions that allow us to exercise judicial power in the absence of a redressable injury applies, we return to our threshold principle: judicial action is sustainable only when the controversy presents an injury that a court can redress. For reasons that relate directly to the separation of powers and the explicit provisions of the legislature’s retroactive and superseding appropriations bill, we conclude that the issue raised in this litigation is not redressable.

We start from the fundamental principle that we cannot exercise powers that belong to the legislative branch. Minn. Const, art. Ill, § 1. The Minnesota Constitution provides the legislature with the power to make appropriations. Minn. Const, art. XI, § 1. And, “[w]ithin the constitutional limits of their jurisdiction,” members of a coequal branch “have an independence of official action no less complete and no less important than that of the judiciary.” Rockne v. Olson, 191 Minn. 310, 313, 254 N.W. 5, 7 (1934). Before the legislators brought this action, the legislature, acting as a whole, passed the appropriations for the 2005-2007 fiscal biennium. This enactment expressly stated that the appropriations were retroactive to July 1, 2005, the inception of the biennium, and that they superseded and replaced the funding authorized by the district court.

We attach significance to the legislature’s express language in making the appropriation bill retroactive to the beginning of the biennium and providing that the appropriation “supersedes” the action of the district court in authorizing the executive disbursements. The legislature essentially voided the commissioner’s disbursement of public funds and reasserted its power to appropriate public funds by choosing to make its action retroactive and superseding. See Black’s Laiv Dictionary 1479 (8th ed.2004) (defining “supersede” as “[t]o annul, make void, or repeal by taking the place of’).

By its plain terms, the legislative enactment takes precedence over the interim funding and asserts its appropriation as the basis for the funding. We are required to take the legislature at its word. See Minn.Stat. § 645.16 (2006) (imposing “plain-meaning” rule). Thus, the issue raised in this action has been conclusively resolved by legislative determination, not judicial action. The legislature has exercised its fundamental constitutional power to appropriate the public funds and to provide that the appropriations are retroactive to the beginning of the biennium and supersede the court-approved disbursement by the commissioner. The judiciary does not have the constitutional power to “relegislate” the effect of the legislature’s appropriations decisions. Not only is the question nonjusticiable from the courts’ standpoint, but, because of the structure and function of legislative power, it is the legislature and not the judiciary that has the institutional competency to devise a prospective plan for resolving future political impasses. The legislature could prevent another judicially mandated disbursement of public funds without an authorized appropriation by, for example, creating an emergency fund to keep the government functioning during a budgetary impasse or enacting a statute setting forth the procedures to be followed during a budgetary impasse. See S.F. 87 (1st Spec.Sess.2005) (proposing enactment of amendment that would provide for maintenance and preservation of core and essential services).

We recognize the legislators’ compelling argument that the commissioner’s court-approved disbursements interfered with their appropriations power and improperly affected the dynamics of the legislative process during the special session. If so— and we do not decide the issue — then the damage has already been done, and it is not subject to judicial redress or remedy at this point in time. An advisory opinion ignoring the plain language of the legislature’s retroactive appropriations, which replaced and superseded the commissioner’s court-approved disbursements, would only compound the injury. If the events of 2005 repeat themselves, the legislators can raise a timely challenge to seek a judicial remedy for their asserted injury.

IV

The legislators assert, for two reasons, that the district court abused its discretion by denying their motion for attorneys’ fees and costs incurred in responding to the commissioner’s motion for sanctions.

The legislators first argue that they are entitled to recover the fees and costs they incurred defending against the commissioner’s motion for sanctions because the motion was frivolous and failed to comply with the procedural requirements of rule 11 of Minnesota Rules of Civil Procedure. We are not persuaded that the commissioner’s motion was frivolous; the commissioner’s concerns about whether the alleged injury was justiciable gave her a reasonable basis for moving for sanctions. And although the commissioner failed to comply with rule 11 by filing her motion at the same time as it was served, the failure to comply with rule ll’s procedural requirements does not automatically entitle the legislators to costs and attorneys’ fees; instead, whether to order costs and fees is a matter within the district court’s broad discretion. See Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844, 851 (Minn.App.2001) (stating that this court reviews district court’s decision to allow or deny sanctions for abuse of discretion).

The legislators’ second claim is that they are entitled to attorneys’ fees and costs because they were prejudiced by the filing of the motion for sanctions. Despite the commissioner’s failure to serve the motion for sanctions twenty-one days before filing it with the court, the legislators had more than twenty-one days before the hearing to withdraw the challenged claims and defenses but they chose not to act. Thus, compliance with the procedural requirements would not have lessened the alleged prejudicial effect of the motion for sanctions.

Accordingly, we conclude that the district court did not abuse its discretion by denying the legislators’ motion for fees and costs they incurred defending against the commissioner’s motion for fees.

DECISION

We reject the district court’s conclusion that this case is barred by the doctrine of laches. Nonetheless, the district court did not err by concluding that quo warranto is an improper proceeding to challenge official conduct that is not ongoing. Although we agree that the case is nonjusticiable, we rest that determination on the legislature’s constitutionally significant decision to retroactively appropriate public funds that effectively and expressly superseded the commissioner’s temporary actions of distributing funds under a court order without an appropriation. Finally, the district court did not abuse its discretion by denying the legislators’ motion for fees and costs incurred in opposing the commissioner’s motion for sanctions

Affirmed in part, reversed in part.


author: SHUMAKER, Judge.

text:
    Robert CARLSON, et al., Respondents, v. SALA ARCHITECTS, INC., Appellant.
    No. A06-691.
    Court of Appeals of Minnesota.
    June 5, 2007.

      William M. Hart, Michael D. Hutchens, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, MN, for appellant.
    Keith S. Moheban, Elizabeth C. Kramer, Leonard, Street and Deinard, Minneapolis, MN, for respondents.
    Considered and decided by STONEBURNER, Presiding Judge; SHUMAKER, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

SHUMAKER, Judge.

In this dispute between architects and their clients, the respondents claim that they hired the appellant to design a particular style home for them, that they paid approximately $292,000 for the appellant’s architectural services, and that the appellant failed to properly perform as agreed.

After denying the appellant’s motion for summary judgment, the district court, sua sponte, awarded summary judgment to the respondents on the ground that the appellant was professionally negligent in holding out as licensed the unlicensed project architect. The court then ordered “disgorgement” of all fees the respondents paid to the appellant.

The court also granted the respondents’ motion to amend their complaint to allege statutory violations relating to the issue of lack of licensure and later denied the respondents’ motion for an award of attorney fees.

On appeal, the appellant challenges only the summary judgment, and, by notice if review, the respondents seek review of the court’s denial of their motion for an award of attorney fees.

Because the court erred in determining that there were no genuine fact issues as to professional negligence, we reverse and remand for further proceedings. We also reverse the court’s determination that “an architect owes fiduciary duties to its clients” as being an error of law. We affirm the court’s denial of the respondents’ motion for an award of attorney fees.

FACTS

In August 2000, respondents Robert Carlson and Virginia Carlson hired appellant SALA Architects, Inc. to design for them a single-family home in Eden Prairie, and the parties signed a “standard form agreement” for the project.

The Carlsons were drawn to SALA, and in particular architect Dale Mulfinger, because these architects were known for their expertise in the design of the. “cottage” style home the Carlsons wanted. The Carlsons specifically did not want a contemporary or modern style.

After the parties entered the agreement, SALA assigned architect David Wagner, a new employee, to assist with the project. Although Wagner was an experienced architect who had worked for a west-coast architectural firm, he was not licensed as an architect in Minnesota. The Carlsons contend that Wagner’s expertise and interest were in modern-style homes typical of northern California architecture, a style of home they expressly rejected from the outset.

The Carlsons contend that they believed that Mulfinger would play a significant and active supervisory role in the project but that in actuality his services were tangential, and he only supervised from a distance. They contend that it was Wagner who assumed the principal role in and control of the project and that, at all times, SALA held him out to be a qualified architect.

By September 2001, after numerous meetings between SALA and the Carlsons, and after various revisions of the design plans, the Carlsons concluded that SALA was not complying with the agreement to design the style of house they wanted, and they stopped the project. They later terminated SALA altogether, and, by that time, they had paid nearly $292,000 in fees for SALA’s architectural services.

In 2004, the Carlsons sued SALA on theories of breach of contract and professional negligence and sought the return of the sums they had paid. When SALA moved for summary judgment, the Carl-sons moved to amend their complaint to add statutory claims relating to Wagner’s lack of Minnesota licensure.

The district court denied SALA’s motion, ruling that genuine issues of material fact existed, but, sua sponte, awarded summary judgment to the Carlsons. The court ruled that it was undisputed that Wagner was not a licensed architect and that SALA never informed the Carlsons of this fact but rather held Wagner out as a qualified architect. Accordingly, the court ruled as a matter of law that SALA had committed professional negligence. The court then held that, because SALA owed a fiduciary duty to the Carlsons, and breached that duty, the Carlsons were entitled to a return of the fees they had paid. These rulings are challenged on appeal.

The court also granted the Carlsons’ motion to amend their complaint. That ruling is not challenged. And the court denied the Carlsons’ motion for an award of attorney fees. The Carlsons seek review and reversal of that ruling.

ISSUES

1. Was summary judgment properly granted when competent evidence was in conflict as to whether an architectural firm held out an unlicensed architect to be a qualified Minnesota architect?

2. Does a per se fiduciary relationship exist between an architect and client?

3. Did the respondents, who were awarded summary judgment, become entitled to attorney fees when they failed to present evidence as to the connection of the fees to the litigation and the reasonableness of those fees?

ANALYSIS

SALA’s appeal invites us to determine whether the district court erred in awarding summary judgment to the Carlsons because the court concluded that (1) there is no genuine factual dispute as to whether SALA held out an unlicensed architect to be licensed, and (2) a fiduciary duty exists between an architect and client, which duty was breached in this case.

On an appeal from summary judgment, this court must decide “(1) whether there are any genuine issues of material fact and (2) whether the [district] court erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine fact issue for trial exists if “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party....” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted). “A party need not show substantial evidence to withstand summary judgment. Instead, summary judgment is inappropriate if the nonmoving party ... presents sufficient evidence to permit reasonable persons to draw different conclusions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn.2006) (emphasis omitted). In deciding a summary-judgment motion, the district court “may not weigh the evidence or make factual determinations, but is required to view the evidence in the light most favorable to the nonmoving party.” Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 432 (Minn.2002). Nor is it appropriate for the district court to assess, evaluate, or determine credibility of the evidence. State ex rel. Hatch v. Allina Health Sys., 679 N.W.2d 400, 406 (Minn.App.2004).

“Holding Out” An Unlicensed Architect

The district court entered two orders respecting the summary judgment awarded to the Carlsons. The first, dated August 30, 2005, awarded the judgment, and the second, dated October 27, 2005, granted SALA’s motion for reconsideration but ordered that its previous summary-judgment ruling would remain unchanged. To each order, the court attached a memorandum. Together these memoranda provide the district court’s analysis of the issues upon which summary judgment was based.

In its second memorandum, the court referred to its first order as having been based on a finding that there was “no material factual dispute on the issue of professional negligence,” and that it contained the conclusion that SALA “was professionally negligent for holding out David Wagner as a licensed architect” to the Carlsons.

There is no dispute that David Wagner was not a licensed architect in Minnesota. But SALA disputes the court’s conclusion that SALA held Wagner out as a licensed architect and supports its position with invoices sent to the Carlsons, which list Wagner only as a “draftsperson,” and with affidavits by Mulfinger and Wagner. Mul-finger swore that SALA does not allow unlicensed employees to hold themselves out as architects, that SALA invoices identified Mulfinger as “project manager and principal architect,” that Wagner was identified as a draftsperson, and that it was apparent from the invoices that Wagner’s time was billed, not as an architect, but as a draftsperson. In his own affidavit, Wagner swore that he never held himself out as an architect and that SALA listed him as a draftsperson on invoices which the Carlsons received and paid.

The court acknowledged SALA’s evidence but ruled that “a.trier of fact could not reasonably conclude that [SALA] did not hold out Wagner as a licensed architect to [the Carlsons] in the course of the parties’ professional dealings.” In support of the court’s ruling, the Carlsons point to a list of “contact” persons having involvement in the project. Under “Architects,” SALA is listed, and then Mulfinger and Wagner are listed. SALA argues that this “contact” list identified persons who could be contacted regarding various architectural services and that Wagner was a person who could be contacted regarding services performed and to be performed by the clearly disclosed architect hired for the project, namely, SALA itself. The Carl-sons also note that not all invoices identified Wagner as a draftsperson. Some invoices clearly show Wagner listed as a draftsperson and show his billing rate. Other invoices are more general and list Wagner, along with other non-architects, under a category of “Architectural Services.” SALA argues that the more general invoices merely show a number of individuals, architects and non-architects, involved in performing work under the heading of architectural services, and the only “holding out” was the fact that these listed persons did contribute in one way or another to the project and, in a broad sense, provided architectural services. Perhaps it is a digression at this point, but it must be noted that it has not been argued, nor did the court hold, that it is improper, illegal, negligent, unprofessional, or in violation of contract for an architect, duty bound to perform “architectural services” for a client, to employ or rely on non-architects to assist with the provision of those services.

Additional bases for the court’s conclusion that a holding out occurred are Robert Carlson’s affidavit, in which he states that Wagner was listed as the “project architect” and that he did not learn of his lack of licensure until after the lawsuit was started; and a document that appears to be part of the plans for the project (identified as Mulfinger Exhibit # 3), which shows Wagner as one of the “contacts” for the architect, but also lists the “Project Architect” as “DM,” presumably Dale Mul-finger.

In its memorandum, the court clearly made factual determinations and drew conclusions. It is apparent that the court believed Robert Carlson’s statement that he was not aware of distinctions among titles of persons listed on the invoices. Inferentially, Robert Carlson was entitled to ignore the disclosure of Wagner as a draftsperson and instead rely on the listing of him as a contact person for the architect. If that is a proper inference, it is one for the jury, and not the court on summary judgment, to draw.

The court also notes that the project blueprint lists both Wagner and Mulfinger under “Architect,” with Wagner being listed first, and that the blueprint, being a public document, would have more significance in terms of accuracy than a private document. That is a conclusion a jury could possibly draw, but it depends on inference and argument and is not a proper determination on summary judgment.

Reviewing the documentary evidence submitted on summary judgment, the court indicated that the affidavits of Mul-finger and Wagner “fail to support a reasonable conclusion” contrary to the conclusion that SALA held Wagner out as a licensed architect. It appears that the court has gone beyond merely ascertaining the existence or nonexistence of a genuine fact issue and has imposed upon SALA a burden of “proof’ not required at this stage of the proceeding.

On the issue of “holding out,” there is a conflict in the evidence that can be resolved only through assessing credibility and weight. The court engaged in that assessment, finding that SALA’s position was not reasonable. To reach that conclusion, the court necessarily had to reject as untrue SALA’s evidence that no one held Wagner out as an architect but disclosed his status as a draftsperson and as one who both performed architectural services and could be contacted on behalf of the architect. The court necessarily had to give more weight to the “contacts” list than to the invoices, and had to give weight to one part of the plan or blueprint showing Wagner as listed under “Architect” but had to reject the specific designation of “DM” as the “Project Architect.”

In selecting certain evidence over conflicting countervailing evidence; in ruling that SALA’s countervailing evidence was either not believable or not reasonable; and in giving more weight to some evidence than other evidence, the court usurped the precise functions reserved to the jury under our system of jurisprudence. The lesson of Donnay v. Boulware is particularly apt here:

Summary judgment is a “blunt instrument” and should not be employed to determine issues which suggest that questions be answered before the rights of the parties can be fairly passed upon. It should be employed only where it is perfectly clear that no issue of fact is involved, and that it is not desirable nor necessary to inquire into facts which might clarify the application of the law.

275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).

There are genuine questions of fact on the issue of “holding out,” and, as the court’s summary-judgment memorandum demonstrates, there are many issues of credibility and weight as to the case in general. Thus, the district court erred in determining that there is no genuine issue of material fact as to whether SALA held Wagner out to be a licensed architect on the Carlsons’ project, and the summary judgment must be reversed and the case remanded for trial.

Fiduciary Duty

The district court not only found that there was no fact issue as to “holding out” but also concluded that, by holding out an unlicensed person to be a licensed architect, SALA breached its fiduciary duty to its clients. SALA argues that the court erred as a matter of law, contending that there is no fiduciary duty per se between architect and client. We agree and reverse that determination as well.

We note as a preliminary matter that the court relied substantially on the affidavit of Anthony Desnick, an architect, in deciding the issue of the breach of fiduciary duty.

In a sweeping mélange of ostensibly proper expert opinion, improper opinion, speculation, legal conclusions, statutory interpretation, and clearly partisan polemics, Desnick purports to resolve the entire case. He sets the legal standards for the issues, evaluates and judges the facts, determines credibility, decides what law is to apply and how it is to be applied, calculates damages, and decides causation. He resolves both the breach-oficontract claim — opining, in an ultimate legal conclusion, that SALA breached its contract with the Carlsons — and the professional-negligence claim' — in essence stating the dubious proposition that an architect must do what the client wants or the architect is per se guilty of malpractice. Like the district court, we are not to weigh evidence, but the paucity of reliability in this unabashedly biased expert opinion is so striking that, as in the district court’s suggestion about SALA’s “holding out” evidence, no reasonable trier of fact could be persuaded by any part of it. Nevertheless, the credibility and weight of expert evidence is reserved for jury determination, if such evidence becomes relevant at trial.

The court here relied on the expert affidavit and certain statutes in concluding that SALA breached a fiduciary duty by holding Wagner out as a licensed architect. The court noted that Minn.Stat. § 326.02, subd. 1 (2004), makes it unlawful for a person to practice architecture or to hold himself out as an architect unless he has the requisite license or certification. But Minn.Stat. § 326.14 (2004) permits unlicensed persons to engage in architectural work as long as a licensed architect takes “responsible charge of such work.... ” Minn.Stat. § 326.14. SALA contends that Mulfinger, a licensed architect, was the project architect who took responsible charge of the work for which the Carlsons retained the firm. There is testimonial and documentary support of SALA’s contention that is sufficient to create a genuine fact issue for trial. As discussed above, the court concluded that a “holding out” occurred, and the court similarly concluded that Mulfinger did not assume responsible charge of the project and thus there was a statutory violation.

In granting the remedy of disgorgement of fees that SALA received for the project, the court assumed, without authority, that a fiduciary relationship exists between architect and client. Although Rice v. Perl, 320 N.W.2d 407 (Minn.1982), provides authority that a remedy for the breach of a fiduciary relationship can be the return of fees paid by the client to the professional, the sine qua non of that remedy is the existence of a fiduciary relationship. Perl involved an attorney-client relationship, and the professional relationship between a lawyer and his client is indisputably fiduciary. Perl, 320 N.W.2d at 411. But no Minnesota court has held that a fiduciary relationship exists per se between an architect and his client.

A fiduciary relationship is characterized by a “fiduciary” who enjoys a superior position in terms of knowledge and authority and in whom the other party places a high level of trust and confidence. Toombs v. Daniels, 361 N.W.2d 801, 809 (Minn.1985); Vacinek v. First Nat’l Bank, 416 N.W.2d 795, 799 (Minn.App.1987). Such a relationship transcends the ordinary business relationship which, if it involves reliance on a professional, surely involves a certain degree of trust and a duty of good faith and yet is not classified as “fiduciary.” Minnesota has declined to classify even the physician-patient relationship as fiduciary. D.A.B. v. Brown, 570 N.W.2d 168, 171 (Minn.App.1997). Thus, absent binding authority to the contrary, and none has been shown here, we hold that the relationship of architect and client is not a fiduciary one. However, whether a fiduciary relationship exists is a fact question. Toombs, 361 N.W.2d at 809. Thus, while a relationship might not be fiduciary per se, the facts of the case might create such a relationship. Whether the facts here gave rise to a fiduciary relationship between SALA and the Carl-sons is not an issue for resolution by summary judgment, but no such relationship existed per se, and the district court erred in assuming the contrary. The court’s ruling that SALA breached its fiduciary duty to the Carlsons must be reversed.

SALA argues that this is a breach-of-contract case and nothing more. Recognizing that SALA’s services ended at the design phase, that seems to be correct. All of the duties imposed on SALA were contractual. If SALA intentionally or negligently failed to perform those duties, it will have breached the contract. Or if SALA failed, for whatever unjustifiable reason, to carry out the terms of the contract, it will have breached the contract. But a true negligence claim would seem to have to relate to a stage beyond the design phase, likely the building phase. On remand, the district court and the parties may consider whether there exists a viable negligence claim, apart from breach of contract, for trial.

Attorney Fees

The district court awarded summary judgment to the Carlsons together with “fees and costs to be taxed.” The Carlsons moved for an award of attorney fees in the sum of $90,961.25, basing their motion on a provision in the parties’ agreement that SALA would indemnify the Carlsons for attorney fees incurred “in connection with [SALA’s] negligent errors, omission or acts.”

The court denied the motion on the ground that the Carlsons “did not make a motion for attorney fees, and did not submit any facts to support an award of attorney fees, at the summary judgment stage of this litigation.”

Through their notice of review, the Carlsons argue that they are entitled to attorney fees because the court found SALA to have been negligent and to have breached its fiduciary duty. In view of our reversal of those liability determinations, the argument is without merit at this point. Moreover, the court found that the Carlsons had failed to produce facts to support their fee request. We will not reverse the district court’s decision on attorney fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). Even when attorney fees may be allowed, there still must be a showing as to their reasonableness and their connection to the litigation. See State by Head v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971) (stating that what constitutes reasonable value of attorney fees is determined by the evidence submitted and the facts in the record). The Carlsons have made no such showing, nor have they cited any facts in the record to support their request for fees. They presented to the district court nothing more than a claim for fees, but without substantiation. Thus, the court did not abuse its discretion in denying the motion for attorney fees, and we affirm that denial.

DECISION

No per se fiduciary duty exists in Minnesota, and whether the facts of this case created such a relationship was not an issue for the district court to resolve by summary judgment. Although there is no dispute that Wagner was not a licensed architect in Minnesota, the district court made factual determinations and drew conclusions that are improper on summary judgment. The district court erroneously determined that SALA held Wagner out as a licensed architect, that a per se fiduciary duty exists between architect and client, and that SALA had breached this duty. Therefore, summary judgment must be reversed and the case remanded for trial.

The court also denied respondents’ motion for attorney fees. Because respondents did not provide the requisite support for its fee request, the court did not err in this ruling.

Affirmed in part, reversed in part, and remanded.