author: HUDSON, Judge.

text:
    GLACIAL PLAINS COOPERATIVE, f/k/a Swift Co-op Oil Company, Appellant, v. Thomas HUGHES, Jr., Respondent.
    No. A05-148.
    Court of Appeals of Minnesota.
    Sept. 27, 2005.
    Tara J. Ulmaniec, Wilcox & Ulmaniec, P.A., Benson, MN, for appellant.
    M. Barry Darval, Darval, Wermerskir-chen & Frank, P.A., Willmar, MN, for respondent.

      Considered and decided by HUDSON, Presiding Judge; TOUSSAINT, Chief Judge; and FORSBERG, Judge.

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

   OPINION

HUDSON, Judge.

Appellant Glacial Plains Cooperative (“Glacial Plains”) challenges the district court’s grant of declaratory and injunctive relief to respondent Thomas Hughes, Jr. The district court held that, because respondent was a farm debtor and the debts were incurred on agricultural property, respondent is entitled to the protections of Minn.Stat. § 550.366 (2004). On appeal, Glacial Plains argues that because respondent is now employed as a truck driver, he should not be protected by Minn.Stat. § 550.366. We affirm.

FACTS

The underlying facts of this case are undisputed. Respondent worked as a farmer in Swift County from approximately 1981 until 2001. On March 15, 2002, Glacial Plains obtained a judgment against respondent in the amount of $28,802.69. Respondent incurred this debt in his capacity as a farmer and used the funds to purchase chemicals, fertilizer, and farm supplies.

In April 2003, respondent began working full time for DeVaan Trucking Company as a truck driver. Glacial Plains served respondent with a garnishment exemption notice on March 26, 2004. Glacial Plains’ garnishment notice made no mention of Minn.Stat. § 550.366, which provides limitations for judgments on debts related to agricultural property. Beginning in April 2004, Glacial Plains garnished between $150 and $175 from respondent’s bi-weekly paychecks.

In September 2004, respondent consulted an attorney, and, on September 27, 2004, respondent’s attorney sent Glacial Plains a letter requesting the return of all wages and assets garnished from respondent pursuant to the garnishment notice. Glacial Plains replied on September 28, 2004, that respondent’s “assertion as to the applicability of [Minn.Stat. § 550.366] seems to be a huge stretch” and recommended that respondent “set up a payment plan with Glacial Plains.... ”

On October 19, 2004, respondent moved for declaratory and injunctive relief and for the return of his garnished earnings. On December 9, 2004, the district court granted respondent’s request for declaratory and injunctive relief and ordered Glacial Plains to return respondent’s garnished earnings. This appeal follows.

ISSUE

Did the district court err in applying the protections of MinmStat. § 550.366 (2004), including a three-year statute of limitations on collection actions and a prohibition against attaching real or personal property acquired after judgment on an unpaid farming debt, to a debt incurred by a farmer who is currently employed fulltime in another profession?

ANALYSIS

Glacial Plains challenges the district court’s application of Minn.Stat. § 550.366 (2004) to its judgment against respondent. This is an issue of statutory construction, which we review de novo. Eischen Cabinet Co. v. Hildebrandt, 683 N.W.2d 813, 815 (Minn.2004).

The purpose of statutory interpretation is to ascertain the legislature’s intent. Minn.Stat. § 645.16 (2004). And when the words of a law as applied to an existing situation are free from all. ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing its spirit. Id; see also Homart Dev. Co. v. County of Hennepin, 538 N.W.2d 907, 911 (Minn.1995) (stating that if a statute is free from ambiguity, court looks only at a statute’s plain meaning). If the statute is reasonably susceptible to more than one meaning, it is ambiguous, and the rules of statutory construction apply. Minn.Stat. § 645.16. If the language of a statute is plain, that meaning is applied as a manifestation of legislative intent. Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000).

The full text of Minn.Stat. § 550.366, entitled “Judgments on debts related to agricultural property,” is as follows:

Subdivision 1. Definitions. For purposes of this section, the following terms have the meanings given:
(a) Agricultural property. “Agricultural property” means personal property that is used in a farm operation.
(b) Farm debtor. “Farm debtor” means a person who has incurred debt while in the operation of a family farm, a family farm corporation, or an authorized farm corporation as defined in section 500.24, subdivision 2.
Subd. 2. Limits on execution. A judgment for the unpaid balance of a debt on agricultural property owed by a farm debtor may not be executed upon real or personal property after three years from the date the judgment was entered.
Subd. 3. Attachment to newly acquired property. A judgment for the unpaid balance of a debt on agricultural property owed by a farm debtor does not attach to real or personal property that is acquired by the farm debtor after the judgment is entered.

Glacial Plains argues first that, because respondent works as a truck driver and is no longer a farmer, respondent should not be protected by the three-year statute of limitations established by Minn. Stat. § 550.366, subd. 2. Glacial Plains contends that “[allowing non-farmer Respondent and other non-farmer Respondents to have the three year statute of limitations apply would be detrimental to the economy and the welfare of the state because this application of the statute” encourages debtors to claim their debt as “farm debt, leave farming, and have a shortened period for collection.”

But. Glacial Plains does not dispute that respondent incurred the judgment debt while operating a farm, nor does it dispute that the property for which respondent incurred the debt was used in a farm operation. See Minn.Stat. § 550.366, subd. 1 (defining “farm debtor” and “agricultural property”). Thus, under the plain language of section 550.366, respondent is a “farm debtor” and the property respondent bought, whereby he incurred the debt to Glacial Plains, was clearly “agricultural property.” Id. Accordingly, we conclude that Glacial Plains’ argument is wholly without merit. See Westchester Fire Ins. Co. v. Hasbargen, 632 N.W.2d 754, 757 (Minn.App.2001) (“[A] farmer may receive something of value today, such as chemicals, seeds, or equipment, in exchange for future payment, and may default by failing to pay for the goods, There is no dispute that such a debt would be subject to Minn. Stat. § 550.366.”).

Glacial Plains also argues that “it would be inconsistent with the manifest intent of the legislature to include wages from non-agricultural employment within the definítion of ‘personal property’ within [Minn. Stat. § 550.366].” But when interpreting a statute, words and phrases should be construed according to their common and approved usage. Minn.Stat. § 645.08(1) (2004). “Personal property” is commonly defined as “[a]ny movable or intangible thing that is subject to ownership and not classified as real property.” Black’s Law Dictionary 1233 (7th ed.1999). Respondent’s wages are clearly personal property. It is also undisputed that respondent began earning the wages at issue here after Glacial Plains obtained the judgment against him. Accordingly, the plain language of Minn.Stat. § 550.366, subd. 3, which makes no distinction between a “farm debtor” who is no longer a farmer and one who continues to farm, must be applied to protect respondent’s post-judgment wages.

Additionally, were we to embrace Glacial Plains’ proposed interpretation of Minn. Stat. § 550.366, we would be endorsing a goal that is diametrically opposed to that expressed by the legislature. This court recently discussed Minn.Stat. § 550.366 and noted:

In 1986, the legislature passed a host of laws relating to agriculture to assist farmers. Included in this act were laws intended to address the problem of farm foreclosure sales and resulting deficiency judgments, which the legislature found were debilitating the people foreclosed and taking away their hope for readjustment after foreclosure, which is detrimental to the welfare of the state.
One of the ways the legislature addressed this problem was to shorten the time in which certain deficiency judgments may be enforced.... [And] in 1987, the legislature expanded the three-year limit to judgments for debts relating to personal property used in farming operations by enacting Minn.Stat. § 550.366....

Westchester Fire Ins. Co., 632 N.W.2d at 756-57 (quotation and citations omitted).

With this historical context in mind, we conclude that Minn.Stat. § 550.366 was intended to encourage Minnesotans to pursue farming as a profession, despite the financial risks involved. Glacial Plains argues that the application of Minn.Stat. § 550.366 to cases such as this will have a chilling effect on the ability of farmers to obtain financing for their farms. But the plain language of the statute indicates that the legislature was more concerned with inducing people to farm than with inducing lenders to advance credit to farmers. Accordingly, we find no merit in Glacial Plains’ arguments.

DECISION

Because the plain language of Minn.Stat. § 550.366 (2004) indicates legislative intent to protect debtors such as respondent, we affirm the district court’s order in all respects.

Affirmed.


source: Caselaw Access Project

author: KALITOWSKI, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Massoud GOHARBAWANG, Respondent.
    No. A05-747.
    Court of Appeals of Minnesota.
    Oct. 25, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Minneapolis, MN, for appellant.
    John S. Hughes, Kyle Wermerskirchen, Law Offices of John S. Hughes, Ltd., Minneapolis, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant State of Minnesota challenges the district court’s dismissal of felony-charges against respondent Massoud Go-harbawang for DWI and refusal to submit to chemical testing. The state enhanced the charges to felonies based on respondent’s prior license revocations for refusal to submit to chemical testing. The state contends that the district court erred by determining that (1) a license revocation for refusing to submit to chemical testing does not occur until seven days after the driver has been given the notice and order of revocation; and (2) due process does not allow the use of a license revocation for enhancement purposes when the defendant has not exhausted the right to judicial review of the revocation.

FACTS

The facts of this case are undisputed. On July 16, 2004, respondent was stopped by a police officer while driving a motor vehicle because the officer had articulable suspicion to believe respondent was driving while impaired. The officer read respondent the implied-consent advisory, which included information that refusal to submit to chemical testing is a crime. Respondent refused testing. On July 19, 2004, the state charged respondent with first-degree DWI and first-degree refusal to submit to chemical testing. Both counts were enhanced to felonies based on three prior revocations of respondent’s driver’s license for failure to submit to chemical testing. See Minn.Stat. § 169A.24, subd. 1 (2004) (providing that “[a] person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person ... commits the violation within ten years of the first of three or more qualified prior impaired driving incidents”); Minn.Stat. § 169A.03, subd. 21(a)(3) (2004) (defining a “prior impaired driving-related loss of license” to include a revocation under the DWI statute); Minn-Stat. § 169A.20, subds. 2, 3 (2004) (providing that a person who refuses to submit to chemical testing “may be sentenced as provided in section 169A.24 (first-degree driving while impaired)”).

On July 3, 5, and 10, 2004, respondent had previously been stopped while driving a motor vehicle, the implied-consent law was invoked, and respondent refused to submit to chemical testing. As a result, respondent was issued a notice and order of revocation after each stop. Each notice materially states:

NOTICE AND ORDER OF REVOCATION
On the date shown above (*date issued) you were asked to submit to a test pursuant to Minnesota Statutes Section 169A.50-.53, the Implied Consent Law. Your Driver License and/or privilege to drive in this state is hereby REVOKED. THIS IS YOUR OFFICIAL NOTICE OF REVOCATION. This revocation will take effect 7 days after the issue date shown above.
Because you refused to submit to testing, the Commissioner of Public Safety will revoke your Driver License and/or driving privileges for one year.
This entire notice is valid as a temporary license from the date shown for 7 days.

Each notice also states that the driver may seek judicial review of the revocation within 30 days of revocation.

Respondent filed a motion to dismiss the felony charges from the July 16, 2004 stop. The district court held that for the purpose of using a revocation to enhance a subsequent offense, the revocation period does not start until seven days after receipt of the notice and order of revocation. Respondent received his third notice and order of revocation on July 10, 2004, six days before the incident on July 16, 2004. The district court dismissed the felony charges, stating that “[o]n July 16, [respondent] had, at most, only two qualified impaired driving incidents, which does not satisfy the First-Degree DWI or First-Degree Refusal statutory requirement of three prior impaired driving-related losses of license.” The district court went on to hold that even if respondent’s July 10 revocation was effective on July 10, thus constituting a third prior impaired driving-related loss of license, it was a violation of respondent’s due-process rights to use the license revocations for enhancement “prior to a timely petition for judicial review within 30 days of revocation or waiver thereof.”

ISSUES

1. Did the district court err in determining that a license revocation for refusing to submit to chemical testing does not occur until seven days after the driver has been given a notice and order of revocation?

2. Did the district court err in determining that due process does not allow the use of a prior license revocation to enhance a subsequent charge if the defendant has not exhausted his right to judicial review on the prior revocation?

ANALYSIS

A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003). The application of law to undisputed facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

I.

' Under Minn.Stat. § 169A.52, subd. 6 (2004), “[a] revocation ... becomes effective at the time the commissioner or a peace officer acting on behalf of the commissioner notifies the person of the intention to revoke, disqualify, or both, and of revocation or disqualification.” The district court found this statutory language to be in direct conflict with the language sent to respondent in the notice and order of revocation, which provided that the “revocation will take effect 7 days after the issue date.” The court stated that “[i]n fairness to persons trying to determine the effective date of their revocation and for purposes of use of a prior revocation for enhancement, the court concludes that the revocation period does not start until seven days after receipt of the Notice form.”

The district court found ambiguity to exist between the language in the statute and the language in the notice and order of revocation. But importantly, the court did not find that the statute itself was ambiguous. And we conclude that the plain meaning of the statute controls. See Minn.Stat. § 645.16 (2004) (stating that “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”). Under Minn.Stat. § 169A.52, subd. 6, the revocation takes effect when the officer issues the notice and order of revocation. See also Minn.Stat. § 169A.52, subd. 7(a) (2004) (stating that “a peace officer requiring a test or directing the administration of a chemical test shall serve immediate notice of intention to revoke and of revocation on a person who refuses to permit a test”).

Subdivisions 6 and 7(a) of Minn.Stat. § 169A.52 refer to notice of the intention to revoke and of revocation. Subdivision 6 explicitly states that the revocation becomes effective as soon as the police officer notifies the driver of the intention to revoke and of revocation. Indeed, the notice and order of revocation given to respondent states that “[y]our [d]river [l]i-cense and/or privilege to drive in this state is hereby REVOKED. THIS IS YOUR OFFICIAL NOTICE OF REVOCATION.” We conclude that the fact that the notice is valid as a temporary license for seven days does not delay the immediate and ongoing revocation mandated by Minn.Stat. § 169A.52, subds. 6 and 7. Therefore, the state could properly use respondent’s revocations from July 3, 5, and 10, 2004, to enhance the charges arising from respondent’s refusal to submit to chemical testing on July 16, 2004.

II.

“Within 30 days following receipt of a notice and order of revocation or disqualification pursuant to section 169A.52 (revocation of license for test failure or refusal), a person may petition the court for review.” Minn.Stat. § 169A.53, subd. 2(a) (2004). Here, the district court held that even if revocation is effective when the notice and order of revocation is issued, “due process does not allow the use of a prior license revocation as an aggravating factor predicate to a felony charge where a defendant has not waived the right to judicial review, by the running of the 30 day period prior to the felony charge.”

The United States Supreme Court has articulated a requirement for “meaningful review” of an administrative proceeding when the determination made in that proceeding “is to play a critical role in the subsequent imposition of a criminal sanction.” United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 2155, 95 L.Ed.2d 772 (1987) (citations omitted). Thus, if defects in an administrative proceeding foreclose judicial review, “an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively the element of a criminal offense.” Id.

This court has held that a party who failed to exercise available judicial review was not deprived of his due-process rights when the state used his prior revocation as a statutory aggravating factor to enhance subsequent DWI charges. State v. Coleman, 661 N.W.2d 296, 301 (Minn.App.2003), review denied (Minn. Aug. 5, 2003). In Coleman, the defendant was convicted of first-degree DWI and argued on appeal that the use of a prior revocation of driving privileges as an aggravating factor violated his due-process rights because the prior revocation was not subject to “meaningful judicial review.” Id. at 300. This court noted the separate and distinct proceedings for administrative and judicial review of driving-privileges revocation under Minnesota law, and stated that although Coleman had sought administrative review of his revocation, he did not seek judicial review. Id. at 301. The court concluded that the availability of judicial review of a driving-privileges revocation, although unexercised, satisfied the Mendoza-Lopez requirement for available review. Id.

The facts here provide no reason to depart from the rationale in Coleman. All of respondent’s revocation notices specified the opportunity for judicial review, which the record shows he never sought. The availability of that review, although unex-ercised, satisfies the due-process requirement of meaningful review. The shortened timeframe of respondent’s qualifying revocations, coming within ten days before the DWI and implied-eonsent charges that are the subject of this proceeding, does not alter this result. And respondent was not prejudiced because, had he sought and obtained rescission of one of the revocations on review, the statutory requirement for an aggravating factor of his current charges would no longer have been met.

We conclude that respondent’s right to due process was not violated here. Respondent drove a motor vehicle on July 16, 2004, and refused chemical testing after his license had been revoked on July 3, 5, and 10, 2004. Because respondent had the opportunity for judicial review of his prior revocations, the use of those revocations to enhance the charges arising from his refusal to submit to chemical testing on July 16, 2004, was proper.

DECISION

Respondent drove a motor vehicle on July 16, 2004, and refused chemical testing after the implied-eonsent law had been invoked. He did so after receiving a notice and order of revocation for refusing chemical testing on July 3, 5, and 10, 2004. The prior revocations were effective immediately and were not tolled by the provision for a temporary driver’s license. And respondent’s due process rights were not violated because he had the right to seek judicial review within 30 days after receipt of the notice. Therefore, the district court erred in holding that the state could not use respondent’s prior revocations for enhancement purposes.

Reversed.


author: LANSING, Judge.

text:
    Terry L. ITTEL, et al., Appellants, v. Jerome PIETIG, et al., defendants and third-party plaintiffs, Respondents, v. Bergstrom Stucco, Inc., third-party defendant, Respondent, and James Noreen d/b/a Noreen Construction, third-party defendant, and Bergstrom Stucco, Inc., fourth-party plaintiff, Respondent, and Scherer Bros. Lumber Co., third-party defendant, Respondent, v. David Moore, d/b/a Moore Lathing and d/b/a David Moore Stucco, fourth-party defendant, Respondent.
    No. A05-222.
    Court of Appeals of Minnesota.
    Nov. 1, 2005.

      Mark J. Johnson, Siira B. Gunderson, Gregerson, Rosow, Johnson & Nilan, Ltd., Minneapolis, MN, for appellants.
    Gerald H. Bren, Jennifer R. Olson, Foley & Mansfield, PLLP, Minneapolis, MN, for respondent Pietig, et al.
    Michael J. Tomsche, Teresa A. Gumer-man, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, MN, for respondent Berg-strom Stucco, Inc.
    William L. Davidson, Brian A. Wood, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for respondent Noreen d/b/a Noreen Construction.
    James M. Bratulich, St. Paul., MN, for respondent Scherer Bros. Lumber Co.
    Mary P. Rowe, Jardine Logan & O’Brien PLLP, Lake Elmo, MN, for respondent David Moore, d/b/a Moore Lathing and d/b/a David Moore Stucco.
    Considered and decided by LANSING, Presiding Judge; KLAPHAKE, Judge; and WRIGHT, Judge.
   OPINION

LANSING, Judge.

Homeowners Terry and Gina Ittel appeal from the district court’s summary judgment dismissing their claims for defective construction against a vendor-contractor and its subcontractors. The Ittels acknowledge that a previous settlement agreement’s general-release provisions bar the breach-of-contract and consumer-fraud claims, and we affirm the dismissal of those claims. But, because the settlement agreement is subject to the statutory new-home warranties in Minn.Stat. § 327A.04 (2004), and the release does not effectively waive or modify the warranties, we reverse and remand.

FACTS

In November 1999 Terry and Gina Ittel purchased a home newly constructed by Pietig Bros., Inc. (Pietig). In the four years following the purchase, the Ittels encountered a series of construction problems that fostered three lawsuits. They first sued Pietig in 2001 for water damage to their basement caused by a defective sump pump, inadequate grading, and improper landscaping. Pietig and the Ittels arbitrated the dispute, and the arbitrator determined that the Ittels were entitled to approximately $14,000 in damages.

While repairing these defects, the Ittels discovered that the interior drain tile was improperly installed and the house had no exterior drain tile. In 2002 the Ittels sued Pietig for repair costs to cure the drain-tile defects. The Ittels and Pietig resolved this litigation through settlement. The settlement agreement required Pietig to pay the Ittels $5,375 as “a complete and final settlement and compromise of all claims” and stated that this payment was in full accord and satisfaction of all claims by the Ittels against Pietig. The agreement included a general release for all current or future claims that the Ittels might have against Pietig:

In consideration of the above-referenced amounts paid by Pietig, Ittels ... do[ ] hereby release and forever discharge Pietig ... from any and all actions, causes of action, claims, demands, damages, costs, or expenses of whatever kind and nature, whether known or unknown, suspected or unsuspected, which Ittels now have or may have against Pietig.

The settlement agreement included no substitute or alternative warranties.

In the fall of 2003, the Ittels sustained damage from water intrusion in the front of the house. The Ittels determined that the water intrusion resulted from the improper design or application of the stucco exterior, the absence of kick-out flashing from the roof to the wall, and related defects. According to the building inspector, these defects violated city building codes.

In this third suit against Pietig, for water-intrusion damages caused by major structural defects, the Ittels allege breach of contract, breach of warranty, and consumer fraud. Pietig filed a third-party complaint against its subcontractors, alleging claims of contribution and indemnity. In its answer to the Ittels’ complaint, Piet-ig asserted that the settlement agreement in the second litigation with the Ittels bars the action. Joined by two subcontractors, Pietig then moved for summary judgment. The Ittels, in response, argued that any agreement to release future claims for breach of statutory new-home warranties is void as a matter of law under Minn.Stat. § 327A.04 (2004).

The district court concluded that the general-release provisions in the settlement agreement preclude the Ittels’ claims against Pietig, that the policy considerations supporting litigation settlements outweigh the policy considerations supporting new-home construction warranties, and that the legislature could not reasonably have intended to apply the statutory restrictions on waiver to settlement agreements. On these grounds, the district court ordered summary judgment against each of the Ittels’ claims. The Ittels concede that the general release following the second litigation bars their current breach-of-contract and consumer-fraud claims, but dispute the dismissal of their claim for breach of the statutory warranties for new-home construction.

ISSUE

Do the restrictions on waiver and modification of new-home construction warranties in Minn.Stat. § 327A.04 (2004) invalidate the provisions of a settlement agreement that generally release the housing vendor from all future claims by the vendee?

ANALYSIS

In this appeal from a summary judgment applying statutory language to undisputed facts, we exercise independent review to determine whether the district court erred in applying the statute. Wiegel v. City of St. Paul, 639 N.W.2d 378, 381 (Minn.2002). To ascertain and effectuate the intention of the legislature, our analysis begins with a careful and close examination of the statutory language. State v. Iverson, 664 N.W.2d 346, 350 (Minn.2003); see also Minn.Stat. § 645.16 (2004) (setting forth plain-meaning rule).

If, on its face and as applied to the facts, a statute’s meaning is plain, judicial construction is neither necessary nor proper. Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002), review denied (Minn. May 28, 2002). Although plain meaning is the governing principle in applying statutory language, Minnesota courts will not give effect to plain meaning if it produces an absurd result that plainly conflicts with the purpose of the legislation as a whole. Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.1997); Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993). When a statute is ambiguous or unclear and does not convey a plain meaning, we construe the language to determine legislative intent by examining other factors, “including the need for the law, the circumstances of its enactment, the purpose of the statute, and the consequences of a certain interpretation.” Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 875 (Minn.2000).

The statutory language at issue requires the seller of a completed new dwelling to provide warranties to the buyer, covering, among other things, defects that may arise from faulty workmanship, defective materials, or faulty installation due to noncompliance with building standards. MinmStat. § 327A.02, subd. 1 (2004). The warranty for workmanship and materials extends for one year; the warranty for plumbing, electrical, heating, and cooling systems extends for two years; and the warranty that the dwelling is free from major construction defects extends for ten years. Minn.Stat. § 327A.02, subd. 3 (2004).

The waiver or modification of these statutory new-home warranties is expressly limited:

Except as provided in subdivisions 2 and 3, the [warranties] cannot be waived or modified by contract or otherwise. Any agreement which purports to waive or modify the [warranties], except as provided in subdivisions 2 and 3 of this section shall be void.

MinmStat. § 327A.04, subd. 1 (2004). The exception provided in subdivision 2 requires that any exclusion or modification of warranties after a sales contract be in a written instrument that includes a detailed description of the warranty, the consent of the owner, and the terms of the new agreement in which the vendor must provide “substitute express warranties offering substantially the same protections to the vendee or owner as the statutory warranties.” Id., subd. 2 (2004). Pietig and its subcontractors do not contend that the general release in the settlement agreement included a description of the warranties or any substitute warranties; consequently this exception does not apply. The exception in subdivision 3 applies only to the discovery of a defect before sale of the home. Id., subd. 3 (2004). By its own terms, the exception in subdivision 3 does not apply, and Pietig and its subcontractors do not dispute its inapplicability.

Because neither of the exceptions in MinmStat. § 327A.04 applies, the affirmative directive of the statute controls: the warranties “cannot be waived or modified by contract or otherwise” and “[a]ny agreement which purports to waive or modify” the warranties is void. On its face, the text of the statute is plain and unambiguous. We now turn to whether an ambiguity arises in its application.

A settlement agreement is a contract and therefore subject to a contract’s requirements. Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971) (noting that “[i]t is well settled that a compromise and settlement of a lawsuit is contractual in nature”). Even if a settlement agreement were not a contract, the “or otherwise” language prohibits alternative methods of waiver or modification. The broad reach of the prohibition is confirmed by the second sentence in subdivision 1 that voids “any agreement” that “purports to waive or modify” the warranties. An agreement is a “mutual understanding between two or more persons about their relative rights and duties regarding past or future performances.” Black’s Law Dictionary 74 (8th ed.2004). The statute’s use of the expansive term, “any agreement,” incorporates all forms of agreements and necessarily includes a settlement agreement. Applied to the facts of this case, the statute is unambiguous; its plain language prohibits the waiver or modification of new-home warranties in the settlement agreement if the waiver or modification does not come within either of the statute’s exceptions. Thus, the provisions of the settlement agreement between Pietig and the Ittels that purported to waive or modify the statutory new-home warranties by releasing Pietig from prospective claims is void under Minn.Stat. § 327A.04.

The district court reached a similar conclusion on the plain meaning of Minn.Stat. § 327A.04. But the district court declined to apply the plain meaning because it concluded that the legislature could not reasonably have intended the waiver restrictions on statutory warranties to apply to settlement agreements and that the policy considerations that support litigation settlements outweigh the policy considerations that support new-home construction warranties.

The district court’s first reason impacts the plain meaning of a statute only if the statutory language produces an absurd result that plainly conflicts with the purpose of the legislation as a whole. Olson, 558 N.W.2d at 494; Wegener, 505 N.W.2d at 617. We therefore examine the home-warranty statute for the limited purpose of determining whether the language produces this result.

The legislature’s intent to preserve the statutory new-home warranties from exclusion, waiver, or modification is apparent throughout the provisions of both section 327A.01 and section 327A.04. This apparent intent is consistent with the legislative purpose behind the enactment — to protect the purchasers of new homes. See Koes v. Advanced Design, Inc., 636 N.W.2d 352, 359 (Minn.App.2001) (discussing purpose for enactment of statutory new-home warranties), review denied (Minn. Feb. 19, 2002). The statute specifically provides that an agreement purporting to waive the warranties is void unless it complies with the enumerated exceptions. We are therefore unable to discern a result that is plainly at odds with the purpose of the legislation as a whole.

Similarly, we find no support for the proposition that the plain language of the new-home warranties statute produces an absurd result by precluding the settlement of construction claims. We agree that the law encourages the settlement of disputes and that settlement agreements are presumptively valid. Sorensen v. Coast-to-Coast Stores, Inc., 353 N.W.2d 666, 669 (Minn.App.1984). This assumption of validity cannot prevail, however, when a settlement agreement does not conform to the law. See, e.g., Jackson v. Zurich Am. Ins. Co., 542 N.W.2d 621, 624-25 (Minn.1996) (determining that settlement was void because it violated Minnesota statute); In re Alleged Labor Law Violation of Chafoulias Mgmt. Co., 572 N.W.2d 326, 331-32 (Minn.App.1997) (holding that settlement agreement was void as matter of law because it violated minimum-wage laws), review denied (Minn. Feb. 14, 1998). Consequently, the invalidation of a settlement agreement is not an absurd result when the agreement fails to conform to the law.

Nor do we share Pietig’s fear that applying the statute’s plain language will destroy all settlements of construction claims. First, litigants in construction-defect cases may still agree to release claims for breach of home warranties if legally sufficient substitute warranties are provided. Second, the restriction on waiver of home warranties will not impede a party’s ability to compromise and settle an existing claim in pending litigation involving breach of statutory home warranties. Home warranties relate to future performance, not defects that have already manifested. See Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 678 (Minn.2004) (emphasizing that guarantees in home warranties extend to future performance). The settlement of an existing claim is distinguishable from a waiver of the claim because it simply resolves the parties’ current dispute.

The district court also declined to apply the plain language of the statute because it concluded that the policy favoring settlements outweighs the policy underlying the new-home warranties. Policy considerations, however, do not trump the plain and unambiguous language of the statute; courts are permitted to weigh the consequences of particular policies and the relative merit of competing interpretations only when a statute is ambiguous or does not convey a plain meaning. The statute is not ambiguous.

For these reasons, the plain meaning of the statutory new-home warranties contained in Minn.Stat. § 327A.02, subd. 3, applies to the release provisions of Pietig and the Ittels’ settlement agreement and voids the prospective waiver or modification of the warranties because the release fails to comply with section 327A.04.

DECISION

The plain meaning of Minn.Stat. § 327A.04 (2004) prohibits any agreement waiving a statutory home warranty unless it comes within two exceptions that do not apply in this case. Consequently, the general release of claims in the previous settlement agreement does not preclude the subsequent action for breach of home warranty for major structural defects. We reverse and remand the district court’s dismissal of the claim for breach of home warranty, but we affirm the district court’s dismissal of the breach-of-contract and consumer-fraud claims.

Affirmed in part, reversed in part, and remanded.


text:
    INDEPENDENT SCHOOL DISTRICT NO. 709, Duluth, Relator, v. Linda BONNEY, Complainant, Commissioner of Minnesota Department of Education, Respondent.
    No. A05-84.
    Court of Appeals of Minnesota.
    Nov. 1, 2005.

      Elizabeth A. Storaasli, Agnew Dryer Storaasli Knutson & Pommerville, Ltd., Duluth, MN, for relator.
    Luther A. Granquist, Minneapolis, MN, for complainant.
    Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and CRIPPEN, Judge.

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

   OPINION

KALITOWSKI, Judge.

Relator Independent School District No. 709, Duluth, challenges respondent Minnesota Board of Education’s (MDE) order concluding that relator violated state and federal law as it pertains to children with disabilities attending Little Learners Enrichment Center (LLEC), a private early intervention program. On appeal, relator argues that respondent acted arbitrarily, unreasonably, and in violation of the law by (1) deciding that relator failed to provide transportation to children attending LLEC; (2) deciding that relator did not properly implement individualized education plans (IEP) for children attending LLEC and requiring relator to provide compensatory education; (3) deciding that relator did not adequately consider extended school year (ESY) services for children attending LLEC and requiring relator to revise those services; (4) concluding that relator failed to provide parents of children attending LLEC with adequate written notice of proposed special-education services and ordering corrective action; (5) concluding that members of relator’s IEP teams were not qualified as district representatives and requiring that an LLEC representative be part of every IEP team for children attending LLEC. Relator also argues that MDE’s complaint process was arbitrary, unreasonable, and contrary to the requirements of 34 C.F.R. §§ 300.660-300.662 (2004).

FACTS

The Individuals with Disabilities in Education Act (IDEA) requires school districts to provide special education and related services. 20 U.S.C. § 1400(d)(1)(A) (2000). Independent School District Number 709 in Duluth, Minnesota, provides early childhood special education services at Little Learners Enrichment Center (LLEC), a licensed treatment and daycare program. Children at LLEC receive special education services as well as other preschool or daycare services. Details of the services provided to each child are described in that child’s individual education program (IEP). Each IEP sets out the types of special education and related services that the child should receive at LLEC.

On August 3, 2004, complainant Linda Bonney of the Minnesota Disability Law Center entered a complaint against relator with respondent on behalf of students attending LLEC. Respondent’s investigator gathered information regarding the claims in the complaint and respondent issued a complaint decision addressing them on January 4, 2005.

Relevant to this appeal, respondent found that relator (1) failed to provide transportation for LLEC students; (2) failed to properly implement students’ IEPs; (3) failed to properly address whether students required extended school year (ESY) services and failed to provide proper notice to parents when ESY was refused; (4) failed to provide proper written notice to parents of LLEC students; and (5) did not have the required personnel present at IEP team meetings. In conjunction with its findings, respondent ordered relator to undertake corrective action, including orders (1) to provide transportation for children enrolled at LLEC; (2) to develop compensatory education plans for students; (3) to revise and implement policies concerning ESY and notice of ESY refusal; (4) to revise policies regarding parental notice; and (5) to revise policies so that all required team members will attend IEP team meetings.

Relator petitioned this court for a writ of certiorari to review respondent’s decision. This court issued a writ of certiorari on January 14, 2005. Petitioner chai-lenges each of the aforementioned findings and corrective orders as well as respondent’s complaint process itself.

ISSUES

1. Did respondent err in finding that relator was required to provide transportation for children attending LLEC?

2. Is respondent’s finding that relator failed to properly implement children’s IEPs supported by substantial evidence?

3. Are respondent’s findings that relator’s Extended School Year services (ESY) policy was deficient and that relator did not properly consider ESY services for children attending LLEC supported by substantial evidence?

4. Is respondent’s finding that relator failed to provide proper written notice to parents of LLEC students supported by substantial evidence?

5. Is respondent’s finding that relator failed to meet attendance requirements at IEP meetings supported by substantial evidence?

6. Did respondent’s complaint resolution process violate the Individuals with Disabilities in Education Act?

ANALYSIS

“When reviewing agency decisions we adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001) (quotation omitted).

“When an agency performs the quasi-judicial function of receiving and weighing evidence, making factual findings, and applying a prescribed standard to reach a conclusion, a reviewing court applies the substantial-evidence test.” Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn.App.1999) (quotation omitted). Substantial evidence is defined as: “(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; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn.2002). Under the substantial evidence test, the reviewing court evaluates “the evidence relied upon by the agency in view of the entire record as submitted.” Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984). If an agency engages in reasoned decision-making, the reviewing court will affirm, even though it may have reached a different conclusion than the agency. Id. at 669.

I.

Relator argues that respondent erred in its interpretation of MinmStat. § 123B.88 (2004) by construing the statute to require school districts to transport children with disabilities when the children receive special instruction and daycare services in the same location. Relator contends that such a broad interpretation im-permissibly contradicts the transportation requirements of the federal IDEA. We disagree.

Both Minnesota and federal laws address transportation requirements for disabled students. The plain language of the Minnesota statute requires transportation of preschool children for special education services. A school board “must provide transportation to and from the home of a child with a disability not yet enrolled in kindergarten when special instruction and services under sections 125A.0S to 125A.24, 125A.26 to 125A.48, and 125A.65 are provided in a location other than in the child’s home.” Minn.Stat. § 128B.88, subd. 1 (2004) (emphasis added). “[S]pe-cial instruction and services” means “a free and appropriate public education provided to an eligible child with disabilities and includes special education and related services defined in the Individuals with Disabilities Education Act.” Minn.Stat. § 125A.03(a) (2004).

Under the federal IDEA, children with disabilities are entitled to a “free appropriate public education,” (FAPE) which is defined as “special education and related services.” 20 U.S.C. § 1401(8) (2000). One such “related service” is transportation, or the “[t]ravel to and from school and between schools.” 20 U.S.C. § 1401(22); 34 C.F.R. § 300.24(b)(15)(i) (2004). Specifically, the IDEA covers “transporting a preschool-aged child to the site at which the public agency provides special education and related services to the child, if that site is different from the site at which the child receives other preschool or day care service.” 34 C.F.R. pt. 300, app. A (2004) (emphasis added).

Relator argues that the Minnesota statute’s phrase, “includes special education and related services defined in the Individuals with Disabilities Education Act,” limits the definition of “special instruction and services” to those defined in the IDEA. Thus, relator argues, because the IDEA only requires transportation when a child receives special education and daycare at different sites, children who receive both daycare and special education services at the same site are not entitled to transportation under the IDEA as incorporated by Minn.Stat. §§ 123B.88,125A.03(a).

This court retains the authority to review de novo questions of law, which arise when an agency decision is based upon the meaning of words in a statute. St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989). A reviewing court is not bound by an agency’s interpretation of a statute. Id.

When interpreting Minnesota statutes, “words and phrases are construed according to rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08(1) (2004). If a statute, construed according to ordinary rules of grammar, is unambiguous, a court may engage in no further statutory construction and must apply its plain meaning. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996). “[T]he word includes is usually a term of enlargement, and not of limitation.” Janssen v. Janssen, 331 N.W.2d 752, 756 (Minn.1983) (quotation omitted). Therefore, transportation to and from services including “special education and related services defined in the Individuals with Disabilities Education Act” is unambiguously not limited to those instances when transportation is required under the IDEA.

Generally, courts have upheld state educational requirements that go beyond those delineated in the IDEA. See, e.g., CJN by SKN v. Minneapolis Public Schools, 323 F.3d 630, 639 (8th Cir.2003) (holding that when state educational benefits exceed minimum federal standards, the state standards are enforceable through the IDEA); Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 785 (1st Cir.1984) (holding that states may enforce their own laws for disabled children and are not limited to the minimum standards of the federal law), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). As such, respondent did not err in applying the more expansive Minnesota standard to require transportation for LLEC students.

We conclude that the plain language of Minn.Stat. § 123B.88 requires transportation when special instruction and services are provided “in a location other than in the child’s home” even if that location is not, as the IDEA requires, “different from the site at which the child receives other preschool or day care services.”

In addition, the Minnesota statute does not set minimum educational time requirements before triggering a district’s transportation duties. Thus, we reject relator’s argument that respondent’s interpretation of the statute was unreasonable as it applied to children who receive only minimal amounts of educational services while at the daycare location. “The wisdom or propriety of the statute is not a judicial question, but one solely for the Legislature.” Common Sch. Dist. No. 85 v. County of Renville, 141 Minn. 300, 304,170 N.W. 216, 218 (1918).

II.

Relator argues that respondent’s finding that relator faded to properly implement children’s individual education programs (IEPs) was erroneous. Therefore, relator contends, respondent’s order requiring the district to provide compensatory education plans was also in error. Relator also asserts that respondent was required to negotiate and to reconsider its decision. We disagree.

Respondent’s conclusion that the district owed the children compensatory time is supported by substantial evidence in the record. Respondent examined calendars, attendance sheets, and IEPs to determine that services were owed to, but not received by, certain children. Relator suggests a different method of calculating compensatory time. But the fact that there is an alternate method does not establish a lack of substantial evidence to support the reasoned decision-making employed by respondent. Once respondent found that relator failed to provide services to children, respondent had the authority to order relator to develop compensatory education plans. See 34 C.F.R § 300.660(b)(1) (2004).

In conducting our independent review of respondent’s calculations, we have determined that there are possible mathematical errors concerning the precise amount of compensatory time owed to the children. Therefore, we direct respondent to review its calculations and, where appropriate, correct the amount of compensatory time ordered.

Finally, we reject relator’s contention that respondent had a duty to negotiate or reconsider its decision. Under 34 C.F.R. § 300.661(b)(2) (2004), a state educational agency may develop negotiation procedures “if needed,” but it is not affirmatively required to negotiate its final decision. And although respondent’s decision stated that “[disputes over compensatory education plans will be resolved by the MDE,” an agency can no longer correct its errors when it loses jurisdiction by appeal or certiorari. Anchor Cas. Co. v. Bongards Co-op. Creamery Ass’n, 253 Minn. 101, 106, 91 N.W.2d 122, 126 (1958). Here, the record indicates that this court granted relator’s petition for writ of certiorari on January 14, 2005, but relator did not request reconsideration from respondent until February 4. By then, respondent did not have jurisdiction to reconsider its decision.

III.

Respondent found that relator’s extended school year services (ESY) policy was inconsistent with state and federal law and that the record lacked evidence that IEP teams actually considered ESY for some children. Relator contends that those findings are arbitrary, unreasonable, unsupported by substantial evidence, and under an erroneous theory of law. We disagree.

Under the IDEA, ESY must be provided during a break in instruction if a child’s IEP team determines that the services are necessary in order to provide FAPE to the child. 34 C.F.R. § 300.309(a)(2) (2004); Minn. R. 3525.0755, subp. 1 (2003). Minnesota law requires an IEP team to consider ESY and dictates the circumstances under which the team must order ESY. At least annually, -the IEP team must determine a pupil is in need of ESY services if:

A. there will be a significant regression of a skill or acquired knowledge from the pupil’s level of performance on an annual goal that requires more than the length of the break in instruction to recoup unless the IEP team determines a shorter time for recoupment is more appropriate;
B. services are necessary for the pupil to attain and maintain self-sufficiency because of the critical nature of the skill addressed by an annual goal, the pupil’s age and level of development, and the timeliness for teaching the skill; or
C. the IEP team otherwise determines, given the pupil’s unique needs, that ESY services are necessary to ensure the pupil receives a free appropriate public education.

Minn. R. 3525.0755, subp. 3.

1. ESY policy

Relator’s Total Special Education Systems handbook includes a complete copy of Minn. R. 3525.0755 and a document outlining the procedure for determining when ESY is appropriate for a child. Relator’s procedure states that “[i]f the student is able to maintain or recoup skills in a reasonable amount of time, and self-sufficiency or a unique need is not a concern, the student does NOT qualify for ESY services.” Citing that statement, respondent found that relator’s policy was inconsistent with federal and state law, specifically Minn. R. 3525.0755, because its rewording of the state’s requirement in the negative was confusing and could result in limiting the group of children for whom ESY may be an option.

Relator argues that because a complete copy of Minn. R. 3525.0755 is in its handbook, respondent erred in finding that it failed to comply with the statute. But respondent based its finding that the policy was in violation on relator’s failure in its summary of the procedure to include paragraph C. Thus, although relator included the appropriate statute in its manual, the actual procedural standard was confusing and left out the statute’s residual qualification for ESY when the team “otherwise determines” it “necessary.” See Minn. R. 3525.0755, subp. 3. We conclude that substantial evidence supports respondent’s finding that relator’s ESY policy failed to properly cite the circumstances in which a child should receive ESY.

2. ESY consideration

The record indicates that parents of an LLEC child receive a notice when an IEP team is going to review their child’s IEP. The notice informs parents of , topics the team will discuss, “including consideration of extended school year services.” The only mention of ESY in some IEPs is a question asking whether extended school year services are required for the child. Following that question is a box marked “no.” Those IEPs did not discuss or explain why ESY was inappropriate.

Respondent examined relator’s handbook, IEPs, and notices and determined that there was no evidence that the IEP teams considered ESY for some students. A review of the record indicates that the evidence was such that a “reasonable mind might accept as adequate” to support the conclusion that the IEP teams failed to adequately consider ESY. Therefore, we conclude that respondent’s finding was supported by substantial evidence in the record.

IY.

The IDEA requires prior written notice when the district or educational agency proposes or refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of a FAPE to a child. 34 C.F.R. § 300.503(a)(l)(i) (2004); Minn. R. 3525.3600 (2003). State and federal laws require seven specific items in each notice: (1) a description of the action that the district proposes or refuses; (2) an explanation of why the district proposes or refuses to take the action; (3) a description of any other options the district considered and the reason why it rejected the options; (4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action; (5) a description of any other factors relevant to the proposal or refusal; (6) a statement that the child’s parents are protected under procedural safeguards and, if the notice is not an initial referral for evaluation, the means by which a copy of the procedural safeguards can be obtained; and (7) sources for parents to contact for help understanding the law. 34 C.F.R. § 300.503(b); Minn.Stat. § 125A.091, subd. 3 (2004).

Here, respondent considered relator’s notices and its IEPs and determined that they failed to meet all of the required components. The record indicates that when relator’s IEP teams declined to provide a service to a child, the team failed to consistently elaborate on the reasoning behind those decisions. Such failure to explain why the district refused to take certain action is a violation of the second statutory requirement under 34 C.F.R. § 300.503(b) and Minn.Stat. § 125A.091, subd. 3.

Relator argues that it would be “absurd” for respondent to require an explanation each time an omitted goal, service, or accommodation was rejected. But neither the statute nor respondent requires explanations for every issue that the evaluation does not consider. They merely require explanations for refused services.

We conclude that respondent properly cited the statutory requirements for written notices under 34 C.F.R. § 300.503(a)(1)® and Minn. R. 3525.3600 and that substantial evidence supports respondent’s conclusion that relator failed to meet all of the requirements.

V.

Respondent concluded that relator violated federal regulations because qualified district representatives, LLEC representatives, and regular education teachers did not attend some IEP team meetings. Relator challenges that holding, arguing that respondent erred because relator’s district representatives were qualified under the statute and because neither LLEC representatives nor regular education teachers were required to be in attendance. We disagree.

1. District representatives

A public agency must ensure that the IEP team for each child includes a representative of the public agency who “(i) [i]s qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (ii)[i]s knowledgeable about the general curriculum; and (iii)[i]s knowledgeable about the availability of resources of the public agency.” 34 C.F.R. § 300.344(a)(4) (2004).

Here, respondent’s investigator sent emails to two of relator’s district representatives asking questions about the district’s general curriculum and resources. One representative’s response indicated a lack of familiarity with the curriculum. Another representative’s response did not address the district’s resources beyond suggesting others who would have such information. We conclude that respondent’s determination that relator’s representatives failed to meet the statutory requirements is supported by substantial evidence in the record.

Relator contends for the first time on appeal that another individual who attended IEP meetings, D.B., was qualified as a district representative. Because relator did not identify D.B. as a district representative in the earlier proceeding before respondent, this court cannot consider that identification for the first time on appeal. See Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984) (stating that the substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency). Therefore, this decision does not address D.B.’s qualifications as a district representative.

2. LLEC representatives

A public agency “shall ensure that a representative of the private school or facility attends the meeting.” 34 C.F.R. § 300.349(a)(2) (2004). Respondent found that relator, the public agency, violated that regulation by failing to ensure that LLEC representatives attended specific IEP team meetings.

Relator acknowledges that no LLEC representative attended the meetings, but argues that, because LLEC is a treatment facility and daycare center, and not a school, the regulation does not apply to its representatives. But, the statute unambiguously applies to public schools ox facilities. Because it is undisputed that LLEC is a facility, the statute applies. Respondent accurately cited 34 C.F.R. § 300.349(a) and respondent’s conclusion that relator violated it is supported by substantial evidence in the record.

3.Regular education teachers

A public agency must ensure that the IEP team for each child with a disability includes “[a]t least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment).” 34 C.F.R. § 300.344(a)(2). Relator challenges respondent’s conclusion that a regular education teacher was required at student D.D.’s May 2004 IEP team meeting.

Relator admits that D.D. would have been placed in special needs kindergarten the next year and possibly integrated “in art and/or music.” The record further indicates that D.D. was to be “mainstreamed with the rest of her class for specialist, center/story time, and other activities as determined by the child study team in the Fall.” Taken in its entirety, we conclude that the evidence supports respondent’s conclusion that D.D. would be participating in a regular education environment so that a regular education teacher should have attended her IEP meeting.

VI.

Relator also argues that respondent’s complaint resolution procedure violated federal complaint regulations. Federal regulations, 34 C.F.R. §§ 300.660-300.662 (2004), require state educational agencies (SEAs) to develop a written complaint resolution procedure (CRP). Additionally, the regulations outline minimum requirements that SEAs must meet in administering complaint procedures under the IDEA. Whether relator complied with the regulations is a question of law, which we review de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

Relator asserts this process argument for the first time on appeal. The general rule that matters not raised below are not addressed on appeal extends to appeals from administrative decisions. E.N. v. Special Sch. Dist. No. 1, 603 N.W.2d 344, 348 (Minn.App.1999). But an appellate court, in its discretion, may review any matter in the interest of justice. Agra Resources Coop v. Freeborn County Bd. of Comm’rs, 682 N.W.2d 681, 684 (Minn.App.2004).

First, relator argues that respondent’s CRP violated federal regulations because it was adversarial. As authority requiring that the CRP process be nonad-versarial, relator cites a case from the federal district court, Megan C. v. Indep. Sch. Dist. No. 625, 57 F.Supp.2d 776 (D.Minn.1999). But Megan C. does not support relator’s contention. The court in Megan C. does not require that the CRP process be nonadversarial; it merely describes the CRP as “informal and less adversarial” when compared to due process hearings. 57 F.Supp.2d at 791.

Second, relator argues that respondent’s investigation was not independent. Under 34 C.F.R. § 300.661(a), each SEA shall “[c]arry out an independent on-site investigation” and “make an independent determination” as to whether a public agency is violating the IDEA. Relator argues that respondent’s CRP lacked independence because respondent allowed complainant and the LLEC director to respond in writing about the allegations in the complaint. Although the regulations require the SEA to “[g]ive the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint,” a school district has no corresponding right to submit additional information. 34 C.F.R. § 300.661(a)(2). As such, we find no violation under the regulation where respondent did not allow relator to submit additional information.

Relator also argues that respondent’s CRP was not independent because respondent did not provide relator with copies of the complaint or other materials. But the record indicates that respondent provided relator a summary of the complaint. And there is no statutory duty for respondent to provide a copy of the complaint where, as here, relator did not request a copy until after this court granted certiorari. Relator fails to demonstrate how failing to provide relator documentation, when there was no duty to provide it and relator never requested it, destroys respondent’s independence.

Third, relator argues that respondent violated 34 C.F.R. § 300.661(b)(2) because it failed to provide technical assistance or negotiation procedures for effective implementation of its decision. Under 34 C.F.R. § 300.661(b)(2), an SEA’s CRP must “[ijnclude procedures for effective implementation of the SEA’s final decision, if needed, including — (i) [t]echnical assistance activities; (ii)[n]egotiations; and (iii)[c]orrective actions to achieve compliance.” But the regulation does not “require” technical assistance or negotiations; it only demands them “if needed.” Moreover, the record does not indicate that such assistance or negotiation was requested prior to relator’s petition for a writ of certiorari.

Fourth, relator argues that respondent failed to include an internal review process within its CRP. A state “may choose to establish procedures for reconsideration of complaint decisions.” Memorandum to Chief State School Officers, 34 IDELR 264 (OSEP, July 17, 2000). But relator does not provide any legal authority affirmatively requiring respondent to develop an internal review process.

Finally, we note that respondent extended the deadline for issuing its decision five times but required relator to immediately implement its orders. Given the complexities of this matter, it would have been in the best interests of all parties for respondent to initially have allowed relator some of the same latitude it allowed itself by providing additional time for review and informal dispute resolution. Nevertheless, as a matter of law, we cannot say respondent’s CRP process violated the law.

DECISION

Under the plain language of Minn.Stat. § 123B.88, subd. 1 (2004), a school district must provide transportation to and from the home of a child with a disability not yet enrolled in kindergarten when special instruction and services are provided in a location other than in the child’s home, even when the instruction and services take place at the same site where the child receives daycare.

In addition, we conclude that because respondent’s findings and complaint decision were supported by substantial evidence in the record, respondent did not act arbitrarily or unreasonably and that neither respondent’s decision nor its complaint resolution process violated the law.

We therefore affirm respondent’s order but remand in part for respondent (1) to review its calculations and, where appropriate, correct the amount of compensatory time ordered; and (2) to amend its order regarding the regular education teacher’s attendance at D.B.’s IEP meeting.

Affirmed in part and remanded in part.

      . Relator contends that respondent approved its ESY policy in connection with a prior complaint. But, the record indicates that respondent only examined relator’s memorandums to staff and training materials at that time, and neither reviewed nor approved relator’s actual policy.

      . In its complaint decision, respondent also held that no regular education teacher attended D.B.’s IEP meeting. On appeal respondent concedes possible error in that conclusion. Respondent should amend its decision accordingly.


author: CROTHERS, Justice.

text:
    2005 ND 180
    L.C.V., Plaintiff and Appellant v. D.E.G., Defendant and Appellee.
    No. 20050008.
    Supreme Court of North Dakota.
    Oct. 26, 2005.

      Robert J. Schultz and Stephannie N. Stiel (appeared), Conmy Feste, Ltd., Fargo, ND, for plaintiff and appellant.
    Maureen Holman, Serkland Law Firm, Fargo, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] L.C.V. (“Lisa”) appeals from a district court judgment declaring D.E.G. (“Doug”) to be the biological father of A.F.V (“Ann”), awarding Doug custody of Ann with reasonable visitation for Lisa, Ann’s mother, and ordering Lisa to pay child support. On appeal, Lisa asserts the district court’s custody award is clearly erroneous and the court erred in failing to award Lisa attorney fees and retroactive child support. We affirm the court’s award of custody and refusal to award attorney fees, but reverse and remand for redetermination of retroactive child support.

I

[¶ 2] Ann was born on September 18, 1999. Lisa and Doug have never married, and Lisa filed a paternity action against Doug on June 18, 2003 seeking child support. In response, Doug admitted he is Ann’s biological father, and he sought custody and child support from Lisa. After a hearing, the district court awarded primary physical custody to Doug with liberal visitation privileges for Lisa. The court also ordered Lisa to pay child support of $207 per month. Although Lisa requested it, the court did not require Doug to pay retroactive child support for periods when Lisa claims she was Ann’s primary caretaker. The district court also did not award either party attorney fees.

II

Custody

[¶ 3] Lisa asserts the district court’s decision to award primary physical custody to Doug is clearly erroneous. In making an initial custody determination the court must award custody based upon the best interests and welfare of the child. In re Griffey, 2002 ND 160, ¶5, 652 N.W.2d 351. The best interests and welfare of the child are determined by application of the factors set forth in N.D.C.C. § 14-09-06.2(1). In re Griffey, at ¶ 5. The district court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the court’s decision although a separate finding is not required for each factor under this statute. Schmidt v. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196. A court’s custody decision is a finding of fact that will not be reversed on appeal unless clearly erroneous. DesLauriers v. DesLauriers, 2002 ND 66, ¶ 6, 642 N.W.2d 892. We exercise a limited review of a child custody award, and the complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142.

A

[¶ 4] The parties stipulated to appointment of a custody investigator, who concluded in her final report that the parties should share custody, but under a schedule which effectively would make Lisa the primary physical custodian. Lisa asserts the district court arbitrarily disregarded the conclusions of the custody investigator. A district court cannot delegate to a guardian ad litem or other independent investigator its authority to award custody to the parent who will promote the best interests and welfare of the child. Hogan v. Hogan, 2003 ND 105, ¶ 10, 665 N.W.2d 672. It is within the court’s discretion to assign the weight given to such evidence. Id. at ¶ 11. The district court referred to the custody investigator’s report in its findings. Although the court reached a different result than recommended by the investigator, we conclude the court considered, and therefore did not arbitrarily disregard, her report.

B

[¶ 5] Lisa asserts the district court’s findings of fact number 14 and number 16(d) are clearly erroneous. Those findings state:

14. [Lisa] testified that she was the primary caregiver for [Ann] and that [Doug] only saw [Ann] on occasion and never had any overnights at his home. [Lisa’s] testimony in this regard is not credible. The custody investigator, Melissa Lee, in her initial report, introduced as court’s Exhibit # 1, reported that both parents agreed that [Doug] had shared equal time with [Ann] prior to [Lisa’s] commencement of this suit. Ms. Lee confirmed this in her testimony at court. Thus, [Lisa’s] testimony that the equal sharing of time was limited to a three-month period is not credible.
16. In determining the appropriate custodial placement for a child, the court is to analyze each of the best interest factors found in North Dakota Century Code Section 14-09-06.2(1). Each of the factors is assessed below:
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity. For many of the early years of [Ann’s] life, [Ann] spent time equally in both [Doug’s] home and [Lisa’s] home. [Lisa] significantly reduced the amount of time [Ann] spent with [Doug] and [Ann] had a difficult time dealing with this reduction in time with her father.
[Lisa’s] home environment has not been a stable environment. [Lisa’s] pregnancy with [Ann] was the result of an affair with [Doug] that started while [Lisa] was still married to [another man]. When that relationship was over, she entered into another relationship. [Lisa] has a history of impermanent relationships. She also has a tendency to introduce the new boyfriend to her children quickly, thus increasing the likelihood of problems for the children.
[Doug] is not involved in a relationship. Although he had a recent friendship with another woman, he is not pursuing that relationship at this time. He did not introduce [Ann] to that woman until the relationship had been in place for several months. [Doug] has the more stable, positive home environment.

Lisa specifically objects to the finding that “[Lisa’s] testimony that she was [Ann’s] primary caretaker was not credible.” Lisa also claims the court’s statement that “in her early years [Ann] resided equally with both parties” is clearly erroneous.

[¶ 6] Regarding the parties sharing of custody, the custody investigator concluded in her December 10, 2003 report:

Both parents claim to be the child’s primary caregiver. [Doug] and [Lisa] also stated that up until recently custody has not been an issue even though their relationship ended. Both agree that [Ann] was allowed to see her father whenever she wanted and she spent about equal amount of time with both parents.

Doug testified that prior to he and Lisa breaking up, the time he spent with Ann “was a lot” and before Lisa cut his time with Ann in August 2003 there were “months that went by that I had her a majority of the times.” Doug testified that when he and Lisa ended their relationship around Thanksgiving 2002 he told Lisa that he wanted Ann half of the time and Lisa agreed to that. Doug also testified that when Lisa only allowed Ann to spend shorter periods of time with Doug, Ann was having “a hard time going back to moms on a Sunday night. When I would pick her up she would always run to dad.” We conclude the district court’s findings of fact number 14 and number 16(d) are supported by the evidence and are not clearly erroneous.

C

[¶7] Section 14-09-06.2(1), N.D.C.C., lists the factors the court must consider in awarding custody:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests....
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶ 8] The district court carefully considered the relevant factors under N.D.C.C. § 14-09-06.2(1) to make a custody award in Ann’s best interests. The court found that both parents have strong emotional ties to Ann but Doug is best able to provide love and affection to Ann, because Lisa has demonstrated stronger ties to her two older children from a prior relationship and a lesser regard or concern for her relationship with Ann. The court found Doug has the capacity and disposition to best provide guidance and education for Ann. The court also found both parents have the ability to provide for Ann’s material needs, but Doug can provide a more stable positive home environment for her. The court found both parents have provided considerable parenting for Ann and both have shared approximately equal time with her prior to commencement of the lawsuit. In essence, the district court found both parents are fit to provide for Ann’s care, but Doug is overall the better choice to have primary physical custody of Ann.

[¶ 9] The district court’s choice for custody between two fit parents is a difficult one, and this Court will not retry the case or substitute its judgment for that of the district court when its determination is supported by the evidence. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 12, 700 N.W.2d 711. We will not reverse a court’s factual findings merely because we would have viewed the evidence differently, and a choice between two permissible views of the weight of the evidence is not clearly erroneous. Corbett v. Corbett, 2001 ND 113, ¶ 6, 628 N.W.2d 312. We conclude the district court’s decision to award primary physical custody to Doug with liberal visitation privileges for Lisa is supported by the record evidence and is not clearly erroneous.

Ill

Retroactive Child Support

[¶ 10] Lisa asserts the district court committed reversible error by failing to award her retroactive child support for the time Lisa asserts she was Ann’s primary caretaker. Section 14 — 17— 14(4), N.D.C.C., provides:

Support judgments or orders for future support must be for monthly payments which must be in amounts consistent with guidelines established under section 14-09-09.7.

Child support determinations involve questions of law subject to the de novo standard of review, findings of fact subject to the clearly erroneous standard of review, and may involve matters of discretion subject to an abuse of discretion standard of review. T.E.J. v. T.S., 2004 ND 120, ¶4, 681 N.W.2d 444. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines established by the Department of Human Services. Id. Section 14-09-09.7(3), N.D.C.C., creates a rebuttable presumption the amount of child support resulting from application of the guidelines is the correct amount of child support. T.E.J., at ¶ 4. An award of retroactive child support in accordance with the guidelines is appropriate. Id. at ¶ 9.

[¶ 11] The district court failed to award retroactive child support to either parent and did not make specific findings or otherwise explain how its decision to not award retroactive support complies with the requirements of the child support guidelines. A district court errs as a matter of law when it fails to make required findings or when the required findings are not intelligible. Lukenbill v. Fettig, 2001 ND 47, ¶9, 623 N.W.2d 7. Where the court does not clearly set forth how its child support decision is in compliance with the child support guidelines, or why it has decided to deviate therefrom, it is appropriate to remand for additional findings and a redetermination of the issue. Id. at ¶¶ 10-11. We, therefore, reverse that part of the district court’s judgment implicitly denying Lisa’s request for retroactive child support and remand for additional findings of fact and a redetermi-nation on that issue.

IV

Attorney Fees

[¶ 12] Lisa asserts the district court committed reversible error in failing to award her attorney fees under Section 14-17-15, N.D.C.C., which, at the time these proceedings commenced, provided:

The court may order reasonable fees of experts and the child’s guardian ad litem and other costs of the action and pretrial proceedings, including genetic tests, to be paid by the parties in proportions and at times determined by the court. The court may order the proportion of any indigent party to be paid by the county social service board of the county in which the child resides or is found. In addition, the court may award reasonable attorney’s fees if an award is permitted under chapter 28-26.

(Emphasis added.)

[¶ 13] Section 28-26-01, N.D.C.C., provides in relevant part:

1. Except as provided in subsection 2, the amount of fees of attorneys in civil actions must be left to the agreement, express or implied, of the parties.
2. In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney’s fees to the prevailing party.

[¶ 14] Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement. Lukenbill, 2001 ND 47, ¶ 14, 623 N.W.2d 7. Under the provisions of N.D.C.C. §§ 14-17-15 and 28-26-01, in effect when these proceedings were commenced, Lisa is not entitled to attorney fees unless the parties have made an agreement for attorney fees or she has shown that Doug presented a frivolous claim for relief. Lukenbill, at ¶ 15. Lisa does not assert the parties agreed to attorney fees or that Doug has presented a frivolous claim. Therefore, we conclude as a matter of law the district court did not err in failing to award Lisa attorney fees for these proceedings.

V

Conclusion

[¶ 15] In accordance with this opinion, we affirm the district court’s award of custody to Doug with reasonable visitation privileges for Lisa and we affirm the court’s refusal to award attorney fees for these proceedings. However, we reverse the court’s denial of Lisa’s request for retroactive child support and remand for findings of fact and a determination on that issue.

[¶ 16] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., LAURIE A. FONTAINE, District Judge, concur.

[¶ 17] The Honorable LAURIE A. FONTAINE, District Judge, sitting in place of SANDSTROM, J., disqualified.

      . The names of the parties and the child in this case are pseudonyms.

      . Chapter 14-17, N.D.C.C., was repealed in 2005 by the legislature. 2005 N.D. Sess. Laws ch. 135, § 11. That legislation reenacted the Uniform Parentage Act under N.D.C.C. ch. 14-20. Regarding support orders in paternity cases, the new legislation provides under Section 14-20-57(4):
      The order may contain any other provision in the best interest of the child, including payment of support, payment of expenses of the mother's pregnancy and confinement, custody of the child, visitation with the child, and furnishing of bond or other security for payment of support. A support order must be for a monthly payment in an amount consistent with the guidelines established under section 14-09-09.7 and must be subject to section 14-09-08.1. All remedies for the enforcement of support, custody, and visitation orders apply. The court has continuing jurisdiction to modify an order for future support and, subject to section 14-09-09.6, custody of and visitation with the child.
      The enacting legislation specifically provides that a proceeding to adjudicate parentage which was commenced before the effective date of the chapter is governed by the law in effect at the time the proceeding was commenced. 2005 N.D. Sess. Laws ch. 135, § 12.

      . The 2005 legislation reenacting the Uniform Parentage Act under N.D.C.C. ch. 14-20, including N.D.C.C. § 14-20-57(5), provides for an award of reasonable attorney fees in actions to establish parentage:
      Except as otherwise provided in subsection 6, the court may assess filing fees, reasonable attorney’s fees, fees for genetic testing, other costs, and necessary travel and other reasonable expenses incurred in a proceed-mg under sections 14-20-36 through 14-20-58. The court may award attorney’s fees, which may be paid directly to the attorney, who may enforce the order in the attorney's own name.
      This statute does not apply, because the proceeding to adjudicate parentage was commenced before the effective date of the legislation. 2005 N.D. Sess. Laws ch. 135, § 12.