author: TOUSSAINT, Chief Judge.

text:
    Andrew Scott KASTNER, Respondent, Eric Nelson, Respondent, v. STAR TRAILS ASSOCIATION, A Minnesota Not for Profit Association, petitioner, Appellant.
    Nos. C5-01-1157, C4-01-1165.
    Court of Appeals of Minnesota.
    April 8, 2003.

      Sharon L. Van Dyck, Schwebel, Goetz & Sieben, Minneapolis, MN, for respondent Andrew Scott Kastner.
    Alan R. Nettles, Alan R. Nettles & Associates, P.A., Minneapolis, MN, for respondent Eric Nelson.
    Paul Robert Smith, Abrams & Smith, P.A., Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and HUSPENI, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

These consolidated cases arise out of two snowmobile accidents on a trail created, maintained, and groomed by the not-for-profit appellant Star Trails Association. Appellant moved for summary judgment based on immunity, and the district court denied the motion. Because appellant is entitled to immunity under (a) the exception to municipal liability for recreation areas, Minn.Stat. §§ 466.03, subd. 6e, 84.83, subd. 4 (2002), and (b) the recreational-use-immunity statute, Minn.Stat. § 604A.25 (2002), we reverse.

FACTS

On January 6, 1996, and January 24, 1999, respectively, respondents Eric Nelson and Andrew Kastner were paralyzed after they lost control of their snowmobiles at approximately the same place on the Star Trail in Washington County. Their lawsuits against appellant Star Trails Association, the not-for-profit association that constructed and maintained the trail, were joined for the purpose of pretrial proceedings.

The association moved for summary judgment, arguing that it was immune from suit under the municipal-immunity and recreational-use-immunity statutes. The district court denied both the summary-judgment motion and the association’s motion to certify the immunity question as important and doubtful. This court dismissed the association’s interlocutory appeal. On review, the Minnesota Supreme Court formally adopted the collateral-order doctrine and remanded to this court. Kastner v. Star Trails Ass’n, 646 N.W.2d 235 (Minn.2002). Deciding that the order denying summary judgment based on immunity was immediately ap-pealable, this court reinstated the appeals by its order of August 6, 2002.

Appellant Star Trails Association is composed of various snowmobile clubs in Washington County and was formed to build a countywide snowmobile trail. It has an agreement with Washington County to acquire, construct, and maintain a public trail, with the understanding that it will be reimbursed by the State of Minnesota upon the county’s application, and its work includes obtaining permits from landowners, clearing and grooming trails, building shelters, mending fences, erecting signs, and then, at the end of the season, cleaning and reseeding trails and fixing and storing signs.

Respondents’ accidents took place on the Association’s Star Trail, which has run through the land owned by Artie Schaefer since 1976. Schaefer signed a permit giving the county the “right to enter upon said right-of-way for any purpose necessary to the performance of lawful powers and duties.”

In the association’s motion for summary judgment, it sought dismissal of the respondents’ claims based on immunity under both the municipal-immunity and recreational-use-immunity statutes. The district court denied the motion on the ground that the association was not an “owner” as defined by the recreational use immunity statute.

ISSUE

Did the district court err in concluding that neither the municipal-immunity nor the recreational-use-immunity statute applied to appellant?

ANALYSIS

On appeal from summary judgment, this court determines (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).

The association argues that it is immune from the claims in these consolidated actions under (1) the municipal-immunity statute, Minn.Stat. § 466.03, subd. 6e (2002), pursuant to the language of Minn. Stat. § 84.83, subd. 4(a) (2002) and (2) the recreational-use-immunity statute, Minn. Stat. §§ 604A.21, subd. 4, 604A.25 (2002). The facts pertinent to the legal issues on appeal are undisputed.

Background

The relationships between the governmental and nongovernmental entities involved in this litigation derive from the 1973 Minnesota Legislature’s delegation to the Department of Natural Resources (DNR) the responsibility to administer a cost-sharing trail-assistance program for the development and maintenance of snowmobile trails at the local level. 1973 Minn. Laws ch. 648, § 3. By its trail-assistance or grants-in-aid program, the state offers financial and other assistance to local entities, which create and control the snowmobile trails. See Minn.Stat. § 84.83 (2002) (setting out sources of funds and purposes of account to fund grant-in-aid to counties and municipalities); Minn.Stat. § 84.86, subd. 1 (2002) (requiring commissioner to adopt rules for use of grant-in-aid trails and to cooperate with private associations to further snowmobile safety education and training).

In practice, the state contracts with local government “sponsors,” and the local government sponsors, in turn, contract with “trail user organizations” to develop and maintain a local trail. The trail-user organizations perform the work necessary to acquire, design, manage, and maintain the trails for public use. The DNR sets up procedures to acquire, develop, maintain, and groom the trails, and it determines which of the trail-user organization’s charges will be reimbursed. The DNR also provides the trail-user organizations with suggestions and tips for trail design, construction, grooming, and signing.

Municipal Immunity Under Chapter 166

Chapter 466 of the Minnesota Statutes outlines municipal tort liability and immunity. That chapter expressly applies to Star Trails Association through the Minnesota Legislature’s declaration that recipients of the DNR’s trail-assistance program funds

must be afforded the same protection and be held to the same standard of liability as a political subdivision under chapter 466 for activities associated with the administration, design, construction, maintenance, and grooming of snowmobile trails.

Minn.Stat. § 84.83, subd. 4(a). One of the statutory exceptions to municipal liability for torts relates to parks and recreation areas. Minn.Stat. § 466.03, subd. 6e (2002).

While the district court did not specifically discuss sections 466.03, subdivision 6e or 84.83, subdivision 4, the court concluded that the association was not immune from respondents’ claims because the association was not an “owner” as defined in the recreational-use-immunity statute, Minn. Stat. § 604A.21, subd. 4. In its opinion on the appealability of the district court’s summary-judgment order, the Minnesota Supreme Court observed that Minnesota Statutes section 84.83, subdivision 4(a),

unequivocally states that organizations such as appellant are entitled to the protections of Chapter 466, and to require that they be an “owner” would defeat the purpose of this mandate.

Kastner v. Star Trails Ass’n 646 N.W.2d 235, 237 n. 5 (Minn.2002).

Respondents agree that chapter 466 governs the association’s liability to them. They claim, however, that chapter 466 generally imposes liability for a municipality’s torts, that it is a remedial statute, and that its exceptions to liability should be narrowly construed. Respondents also argue that subdivision 6e confers immunity only on the owners and lessees of property and extends only to claims arising out of the “creation” of trails — neither of which, they argue, applies to Star Trails Association. Therefore, the first question before this court is whether the protections of the municipal-tort-immunity statute extend to respondents’ specific claims.

Municipal liability for torts is specifically limited by enumerated exceptions, including limited liability for torts occurring in parks and recreation areas. Minn.Stat. § 466.02 (2002). Each of the enumerated exceptions describes a type of claim from which municipalities are immune. Minn. Stat. § 466.03 (2002). The park-and-recreation-area exception states, in relevant part:

Any claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, or from any claim based on the clearing of land, removal of refuse, and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and recreation property or services.

Id., subd. 6e (emphasis added). Like the other exceptions, subdivision 6e begins with “any claim” or “a claim” and is stated in an incomplete sentence. A plain reading of subdivision 6e indicates that it describes two distinct types of claims: first, “any claim” occurring on municipally owned or leased parks and open recreational areas, and second, “any claim based on * * * creation of trails or paths without artificial surfaces.” Id. The legislature grammatically separated the two types of claims by the use of the disjunctive “or” and by the prefatory language “any claim.”

We do not agree with respondents’ contentions that the association must own or lease the land over which the trail runs or that respondents’ claims are not based on the “creation” of trails. First, the Minnesota Supreme Court has indicated that requiring the association to be an “owner” under chapter 466 would defeat the purpose of section 84.88, subdivision 4(a). Second, a plain reading of the second type of claim described in subdivision 6e does not limit immunity to owners and lessees of the trail, but rather provides for immunity for municipalities and this association, as a recipient of grant-in-aid funds, from any claim based on the creation of the trail. While respondents concede that they could not pursue a claim based on “creation” of the trail, they argue that claims based on negligent signage and maintenance of the trail are distinct claims not covered by the grant of immunity. This reading of the exception wrongly suggests that the legislature could only grant immunity for claims based on signage and maintenance if it specifically listed those types of claims.

A plain reading of the legislature’s use of the broad term “creation” encompasses signage, maintenance, and other ongoing acts required to keep the trails open and in use. See, e.g., Webster’s Ninth New Collegiate Dictionary 304 (1990) (defining “to create” as “to produce or bring about by a course of action or behavior”). Because the words of the law in their application to this situation are clear and free from all ambiguity, we need not look further for legislative intent. See Minn.Stat. §§ 645.08(1) (2002) (stating phrases are construed according to rules of grammar and according to their common and approved usage); 645.16 (stating that absent ambiguity, letter of law shall not be disregarded). Accordingly, the district court erred in its conclusion that the association is not immune from respondents’ claims under Minn.Stat. § 466.03, subd. 6e.

Recreational-Use Immunity Under Chapter 604A

Having concluded that the association is immune from liability based on the express provisions of chapter 466, we reach the recreational-use-immunity statute only to address the district court’s conclusion that the association is not an “owner” under that statute. See Minn. Stat. § 604A.21, subd. 4.

Liability for recreational trail use is specifically covered and limited by Minnesota’s recreational-use-immunity statute whose express policy is to encourage and promote the public’s use of privately owned land for beneficial recreational purposes. Minn.Stat. §§ 604A.20 .27 (2002); see also id. at §§ 604A.22, .25 (expressly limiting recreational-trail users’ claims to those claims where the owner willfully caused injury on “land dedicated, leased, or permitted by the owners for recreational trail use”). The statute expressly extends tort immunity only to “owners,” defined as follows:

“Owner” means the possessor of a fee interest or a life estate, tenant, lessee, occupant, holder of a utility easement, or person in control of the land.

Minn.Stat. § 604A.21, subd. 4 (2002). It is undisputed that the association does not have the status of “possessor of a fee interest or a life estate, tenant, lessee” or “holder of a utility easement.” While the district court did not directly address whether the association might be an “occupant” or a “person in control of the land,” it concluded that the right to operate a trail on the land for four months out of the year “hardly grants control over the land itself.” Therefore, the second question before this court is whether the association is an occupant or person in control of the land.

While the district court apparently determined that chapter 604A is unambiguous and clearly does not apply to the association, respondents contend that there is ambiguity in the definition of “owner” and that this court must ascertain the legislative intent. Whether a district court has properly construed a statute is a question of law, which we review de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). A statute is ambiguous only when it is subject to more than one reasonable interpretation. Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999).

The common definition of “owner” is broad, encompassing “[o]ne who has the right to possess, use, and convey something.” Black’s Law Dictionary 1130-31 (7th ed.1999). “Occupant” falls within the broad definition of owner as “[o]ne who has possessory rights in, or control over, certain property or premises.” Id. at 1106. The legislature’s use of the phrase, “one who is in control of land,” instead of an accepted legal term, suggests a relationship with the land beyond the standard legal relationships surrounding ownership. The definition of “control” further supports a broad interpretation: “[t]he direct or indirect power to direct the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise.” Black’s, supra, at 330. As a general phrase following a list of more specific entities, the only limit on its interpretation is that it include entities of the same type as those listed. Id. at 535 (defining ejusdem generis); see also Minn.Stat. § 645.08(3) (2002) (codifying ejusdem generis); Brookdale Pontiac-GMC v. Federated Ins., 630 N.W.2d 5, 10 (Minn.App.2001) (applying canon to interpretation of insurance policy), review de nied (Minn. Aug. 22, 2001). Thus, the association has immunity under chapter 604A if it had the power to direct the management of the trail.

The district court’s opinion that the status of the association did not grant it control over the land did not recognize that the county’s permit with Schaefer gave the county the express right to enter the land to manage and perform maintenance and that the trail-assistance program effectively placed the association in the county’s shoes. The record reflects an arrangement by which the association— not the fee owner, the county, or the state — was the entity in control of the trail. The association had the right to enter and control the trail; no greater formality in the legal relationship between the association and the county or the owner is required under the statute. See Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 857 (Minn.1998) (extending reach of Minnesota Civil Damage Act to “any person,” including persons without recognized legal relationship).

Because the association falls within the wide breadth of the term “owner” within the meaning of the statute and because respondents’ actions allege the very conduct for which relief is precluded under the statute, the district court erred in denying the association immunity under the recreational-use-immunity statute.

DECISION

The district court erred in its decision to deny appellant’s motion for summary judgment because the appellant is entitled to immunity under the municipal-tort-immunity statute and the recreational-use-immunity statute.

Reversed.

      . While a municipality remains liable for conduct in parks and recreation areas entitling a trespasser to damages, respondents do not contend that the trespasser standard was violated. See Minn.Stat. § 466.03, subd. 6e (2002).


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    Justin Marshall PAONE, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C2-02-1160.
    Court of Appeals of Minnesota.
    April 8, 2003.

      Mary M. McMahon, Special Assistant State Public Defender, McMahon & Associates Criminal Defense, Ltd., St. Paul, for appellant Justin Paone.
    Mike Hatch, Attorney General, St. Paul, for respondent.
    Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka, for respondent.
    Considered and Decided by SHUMAKER, Presiding Judge, RANDALL, Judge, and WRIGHT, Judge.
   OPINION

RANDALL, Judge.

On appeal from the denial of his post-conviction petition, appellant claims he was entitled to the representation of court-appointed counsel at the postconviction proceeding. We agree, and reverse and remand.

FACTS

On September 27, 1998, appellant drove his vehicle at a speed in excess of 80 miles per hour, ran a red light in the city of Coon Rapids, and collided with two other vehicles. As a result of the collision, one person died, two other people were severely injured, and three other people suffered injuries. According to the evidence, appellant drove at this high speed because he was fleeing a group of young men with whom he had previously had an altercation.

Appellant pleaded guilty to one count of criminal vehicular homicide and two counts of criminal vehicular operation resulting in great bodily harm on' April 19, 1999. Appellant was sentenced on June 23, 1999 to 54 months on the criminal-vehicular-homicide count and 18 months each on the criminal-vehicular-operation counts, for a total of 90 months. The sentences were executed consecutively. On September 21, 1999, with assistance from the public defender’s office, appellant filed a direct appeal. Approximately two months later, the appeal was dismissed by stipulation of the parties. No briefs were submitted. The order dismissing the appeal does not specify the parties’ reason for the stipulation.

On April 10, 2002, appellant filed a pro se petition for postconviction relief, primarily challenging his sentence. The post-conviction court (the same judge who sentenced appellant) dismissed this petition without a hearing on May 16, 2002.

On July 12, 2002, appellant filed a pro se notice of appeal, and requested that this court appoint a public defender to represent him. By an order dated August 15, 2002, this court denied that request as beyond its authority, but referred appellant to the public defender’s office by sending it a copy of the order. Shortly thereafter, a special assistant state public defender was appointed to represent appellant and submitted the brief in this appeal.

Appellant asked this court to determine that he was entitled to representation by counsel throughout the postconviction proceedings.

ISSUE

Did appellant have a right to representation for his postconviction petition?

ANALYSIS

In general, a postconviction court’s decisions “will not be disturbed unless the court abused its discretion.” Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997). Here, we are concerned with the postcon-viction court’s procedural steps, which affected appellant’s right to counsel. We are not addressing the merits.

The first issue is whether appellant had a right to representation by the public defender during his postconviction proceedings. Pursuant to statute, an indigent defendant has the right to representation by the public defender during postconviction proceedings under certain circumstances.

A person financially unable to obtain counsel who desires to pursue the remedy provided in section 590.01 may apply for representation by the state public defender. The state public defender shall represent such person under the applicable provisions of sections 611.14 to 611.27, if the person has not already had a direct appeal of the conviction.

Minn.Stat. § 590.05 (2002) (emphasis added). The state argues that because appellant had already filed a direct appeal and was provided counsel for that appeal, he had no right to representation by a public defender in his later petition for postcon-viction relief. Appellant argues that he had not exhausted his right to representation because his “appeal” was just a filing and was dismissed by agreement of the parties without actual appellate review. We agree. In a similar context, the Minnesota Supreme Court refused to apply a claim waiver to a postconviction hearing where a defendant filed a direct appeal and then shortly thereafter stipulated to its dismissal. In Rairdon, the court stated:

[W]e are not prepared to extend the Case waiver rule to a petitioner * * * who merely files a direct appeal, but whose claims do not receive actual appellate review.

Rairdon, 557 N.W.2d at 322 (emphasis in original). The supreme court continued, “On the facts before us, [appellant’s] failure to pursue a direct appeal is outweighed by our commitment to convicted defendants’ rights to substantive review.” Id. We find that the same analysis and that same commitment to due process apply here. Appellant filed a direct appeal, but withdrew it two months later, pursuant to a stipulation with the state. The appeal did not approach any assessment on its merits. Based on Rairdon, we easily conclude the direct appeal was only preliminary and had not even begun to run the course of actual appellate review. Thus, appellant did not exhaust his right to representation by a public defender because of his direct appeal.

We further conclude he was entitled to the assistance of a public defender. The statute states:

In the event the petitioner is without counsel, the court administrator shall forthwith transmit a copy of the petition to the state public defender and shall advise the petitioner of such referral.

Minn.Stat. § 590.02 subd. 1(4) (2001). On receipt of appellant’s pro se petition for postconviction relief, the Anoka County Court Administrator forwarded a copy to, among others, the “Pro Se Petitioner’s Attorney.” Appellant did not have an attorney. Properly applying the statute, the court administrator should have sent a copy of the appellant’s petition to the state public defender. Once it received the referral, the office of the public defender should have accepted appellant’s representation during the postconviction proceedings. Minn.Stat. § 590.05 (2002).

The state acknowledges that the proper procedure would have been to notify the public defender’s office, but argues that appellant has failed to show that his lack of counsel prejudiced him and, thus, the omission was harmless error. We are not prepared to say that it was harmless error for appellant not to have the services of an appointed criminal defense attorney. The right to counsel is one of the most fundamental.

The Minnesota Supreme Court stated:

The rights of all citizens embodied in our Minnesota Bill of Rights, however, are so important that they cannot be overridden for temporary expediency in building statistics. Of all those rights embodied in our Bill of Rights, the two most fundamental are the right to counsel and the right to trial by jury. Without them, there can be no constitutional rights at all. Every citizen has learned at an early age that whenever one is in trouble, the first resort should be to contact one’s attorney and seek advice. We thus repeat the age-old rule of law that was embodied in our state constitution: The defendant shall have the right to counsel.

Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991).

The right to counsel is deeply engrained in our society’s notions of fairness and justice. It is both statutory and constitutional. Had the proper procedure been followed in this instance, and counsel been assigned, the merits of appellant’s argument may have been viewed differently in the postconviction proceedings. The state has failed to convince us otherwise.

For the forgoing reasons, we conclude that (1) appellant did not exhaust his right to representation in his dismissed direct appeal; and (2) the public defender’s office should have been notified of and assigned to appellant’s postconviction petition.

In general, a petitioner requesting a postconviction hearing bears the burden of alleging facts that, if proved by a preponderance of the evidence, would entitle him to relief. Rainer, 566 N.W.2d at 695. The postconviction court here found that appellant had failed to do so and denied his petition without a hearing. Because we have determined that appellant was denied his right to representation, we conclude that it was error for the postconviction court to deny appellant’s petition without a hearing under these circumstances. To ensure fairness in this postconviction proceeding, we reverse and remand so that appellant may begin again, this time properly represented by counsel and better able to present his postconviction claims to the court.

DECISION

Because it was error for the district court to deny appellant’s postconviction petition where appellant lacked the representation to which he was entitled, we reverse and remand for proceedings consistent with this opinion. We note that appellant submitted a pro se supplemental brief to this court arguing the merits of his post-conviction petition. We do not address those arguments here; they should be presented to the postconviction court on remand.

Reversed and remanded.

      . Minn. Const, art. I, § 6.


author: HARTEN, Judge.

text:
    WOLF MOTOR COMPANY, INC., Respondent, v. ONE 2000 FORD F-350, VIN IFTSX31F1YEC59488, Appellant.
    No. C0-02-1402.
    Court of Appeals of Minnesota.
    April 8, 2003.

      David E. Schauer, Sibley County Attorney, Winthrop, MN, for appellant.
    Steven L. Bergeson, Andrew M. Morris, Jordan, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge, HARTEN, Judge, and PORITSKY, Judge.

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

   OPINION

HARTEN, Judge.

Appellant county challenges the district court’s determination that a vehicle it seized was not subject to statutory forfeiture and the awards of interest and attorney fees to respondent, the vehicle’s owner.

FACTS

On 9 March 2000, Erik Tharaldson contracted with respondent, Wolf Motor Co., Inc. (Wolf) to purchase a 2000 Ford F-350 pickup truck. Tharaldson paid for the truck with a personal check for $36,155.92 and took possession of the truck the next day. Wolfs sales manager later testified that the sale was contingent on Tharald-son’s obtaining financing to cover his check.

On 11 March, police stopped Tharaldson as he was driving the truck. They discovered 0.6 gram of methamphetamine inside the truck and arrested Tharaldson for a controlled substance crime. The following day, Tharaldson was served with a notice of seizure and intent to forfeit the property. Because Wolf was waiting for Thar-aldson’s check to clear, it had not yet transferred title to the truck; Wolf did not receive a notice of the forfeiture proceeding.

On 13 March, a state trooper visited the Wolf dealership to inquire about the sale of the truck. Wolf showed the trooper all the paper work, including the title in Wolfs name and Tharaldson’s uncashed check. Wolfs sales representatives later testified that the trooper told them that it would be in their “best interests” to get the title transferred but would not tell them why. As the trooper advised, Wolf filed a transfer of title. On 16 March, Wolf learned that payment on Tharald-son’s check had been stopped.

Wolf petitioned for judicial determination of forfeiture, asking that the truck be returned. Following a bench trial, the district court found that Wolf had filed the transfer of title of the truck based on the recommendation of the state trooper, that Tharaldson’s personal check never cleared, and that transfer of the title from Wolf to Tharaldson was conditioned on the check being honored. Concluding that “if the actions taken by [the county] * * * were to result in the county obtaining title to the truck, Wolf would be unfairly harmed and the county unfairly benefited,” the district court ordered that the truck, or its value of $36,155.92, be returned to Wolf and awarded Wolf costs, disbursements, and statutory interest. Subsequently, the court awarded Wolf attorney fees in the amount of $5,621.58. This appeal followed.

ISSUES

1. When a buyer takes possession of a vehicle after agreeing with the seller that title to the vehicle will not transfer until the vehicle is paid for, does an unlawful act of the buyer before paying for the vehicle subject the vehicle to statutory forfeiture?

2. Is prejudgment interest properly awarded in proceedings conducted under Minn.Stat. § 609.5313 (2002)?

3. Does a district court abuse its discretion in awarding attorney fees against a party after finding that the party unreasonably pursued its interest in improperly forfeited property?

ANALYSIS

1. Forfeiture of the Truck

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

Minn.Stat. § 609.5311 (2002), provides:

Subd. 2. All property, real and personal, that has been used, or is intended for use, or has in any way facilitated, in whole or in part, the * * * transporting * * * of contraband or a controlled substance that has not been lawfully manufactured, distributed, dispensed, and acquired is subject to forfeiture * * *.
Subd. 3. * * * (d) Property is subject to forfeiture under this section only if its owner was privy to the use or intended use described in subdivision 2, or the unlawful use or intended use of the property otherwise occurred with the owner’s knowledge or consent.

The county argues that the truck is subject to forfeiture because ownership of the truck transferred to Tharaldson when he took possession of it, and therefore Wolf did not own the truck at the time of Thar-aldson’s arrest. But Minn.Stat. § 336.2-401(2) (2002) provides:

Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes performance with reference to the physical delivery of the goods * * *.

(Emphasis added). Here, Wolf and Thar-aldson had explicitly agreed that Tharald-son would take ownership of the truck when he obtained financing to cover his check, not when Wolf physically delivered the truck to him. As the district court found, the sale of the truck was “conditional upon Tharaldson getting the necessary financing from [the bank].” Thus, despite Tharaldson’s tender of a check for the full price of the truck, the parties’ agreement meant that ownership did not pass at that time. And because ownership of the truck had not transferred by the time Tharald-son was arrested, Wolf remained its owner. Property used for transporting a controlled substance is subject to forfeiture only if its owner was privy to its use for that purpose. See Minn.Stat. § 609.5311. It is undisputed that Wolf was not privy to Tharaldson’s use of the truck for transporting methamphetamine. Accordingly, the truck was not subject to forfeiture.

2. Prejudgment Interest

The county argues that the district court inappropriately awarded statutory prejudgment interest because the statutes governing forfeiture do not provide for prejudgment interest. Statutory construction is a question of law, which this court reviews de novo. Trapp v. Han-cuh, 587 N.W.2d 61, 63-66 (Minn.App. 1998) (construing prejudgment interest statutes).

Minn.Stat. 549.09, subd. 1 (2002), provides that:

(a) When a judgment or award is for the recovery of money, * * * interest from the time of the verdict * * * until judgment is finally entered shall be * * * added to the judgment or award.
(b) * * * [P]reverdict * * * interest on pecuniary damages shall be computed * * * from the time of the commencement of the action * * * or the time of a written notice of claim, whichever occurs first * * *.

Wolf was awarded judgment directing either restoration of the truck or payment of its market value, $36,155.92. The county offers no support for its argument that Minn.Stat. 549.09 does not apply to judgments rendered under Minn.Stat. § 609.5313.

Moreover, Minn.Stat. 549.09, subd. 1(b), enumerates five instances when interest is not awarded and forfeiture cases are not among them. We cannot add to a statute what the legislature has purposely omitted or inadvertently overlooked. Ul-lom v. Ind. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994). We conclude that prejudgment interest was appropriately added to the award.

3. Attorney Fees

This court will not reverse a district court’s award of attorney fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). Minn.Stat. § 609.5314, subd. 3(d) (2002), provides, “If * * * the court orders the return of the seized property, * * * the court may order sanctions under section 549.211.” Minn.Stat. § 549.211, subd. 3 (2002), provides that sanctions may be imposed on those who violate subdivision 2.

Minn. Stat § 549.211, subd. 2 (2002), provides that an attorney or an unrepresented party who presents any document to the court must certify four things:

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

The district court awarded Wolf attorney fees after finding that

[the county] has unreasonably sought to pursue its perceived interest and rights in the vehicle. Its position was not sufficiently grounded in law or the facts. Its position was only colorably supported by the law; it sought to unfairly obtain a legal interest in the property at issue. Its conduct forced Wolf to retain counsel to protect its interest and rights.

These findings reflect the statutory criteria for awarding attorney fees. Once the county became aware that Wolf and Thar-aldson had agreed that Wolf would retain ownership of the truck until Tharaldson obtained financing and that Tharaldson had not obtained financing, the county should have acknowledged that Wolfs ownership precluded forfeiture. The evidence supports the district court’s findings; we conclude that the award of attorney fees was not an abuse of discretion.

DECISION

The district court properly awarded Wolf either the truck itself or its value, prejudgment interest on that value, and attorney fees.

Affirmed,

      . Because the truck was new, there was no state certificate of title. The only document, a Manufacturer’s Certificate of Origin, placed ownership in Wolf.

      . This is the second appeal; the first was dismissed because the issue of attorney fees had been reserved, making the appeal untimely. See Minn. R. Civ.App. P. 103.03(a) (an appeal may be taken from a final judgment). We note also that the county’s brief does not comply with Minn. R. Civ.App. P. 132.01, subd. 1, requiring that ''[bjriefs shall be double-spaced.”

      . Because we find that the truck was not subject to statutory forfeiture, we need not address the county’s argument that the district court improperly invoked equitable principles. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn.1987) (a correct decision will not be reversed because it is based on incorrect reasons).


author: LANSING, Judge.

text:
    STATE of Minnesota, Plaintiff, v. Todd Laverne LILLESKOV, Defendant, Henry HICKS Jr., Defendant.
    Nos. C3-02-1698, C8-02-1700.
    Court of Appeals of Minnesota.
    April 8, 2003.

      Mike Hatch, Attorney General, St. Paul, MN, and
    Patrick Ciliberto, Scott County Attorney, Diane M. Hanson, Assistant County Attorney, Jason Eldridge, Shakopee, MN, for plaintiff.
    Mark Nyvold, Attorney at Law, St. Paul, MN, for defendants.
    Considered and decided by LANSING, Presiding Judge, KLAPHAKE, Judge, and STONEBURNER, Judge.
   OPINION

LANSING, Judge.

This certified question was issued in two prosecutions for violations of the predatory-offender-registration statute, Minn.Stat. § 243.166 (2000). The two cases were consolidated by the district court for the purposes of the certified question, which asks whether the statute applies to defendants Henry Hicks and Todd Lilleskov, who have juvenile adjudications for sex-related offenses that were entered before the statute was amended to cover juvenile sex offenders. We answer the certified question in the affirmative.

FACTS

Defendant Todd Lilleskov, who was born August 18, 1978, was adjudicated delinquent on May 2, 1994, for having committed third-degree criminal sexual conduct. Lilleskov was notified by his probation officer of the requirement to register as a sex offender and, on October 4, 1994, he completed the initial registration. As part of the registration, Lil-leskov reported his current address. In the years 1997, 1998, 1999, and 2000, the BCA registration unit mailed verification letters to Lilleskov at his last-reported address. Lilleskov allegedly did not respond to any of these letters.

In January 2001, police checking at Lil-leskov’s last-reported Shakopee address learned that he had not lived there for years, possibly as long as six years. Lil-leskov was then charged with two counts of violating the predatory-offender-registration law: (1) failing to provide written notice of a change of address; and (2) failing to return the annual verification letters.

Defendant Henry Hicks, who was born December 5, 1979, was adjudicated delinquent on January 20, 1994, for fourth-degree criminal sexual conduct. Hicks was also notified by his probation officer of the registration requirement, and he completed the initial registration on December 29, 1994. As part of the registration, he furnished the BCA with his current address. In January 2001, Hicks notified the BCA of a change of address. But in December of that year, Hicks allegedly failed to respond to an address-verification letter. When police investigated in February 2002, they discovered that Hicks allegedly had not lived at the address “for some time” and was believed to have moved out of state. Hicks was charged with one count of violating the predatory-offender-registration statute by failing to notify the BCA of his new address.

Both Lilleskov and Hicks filed motions to dismiss, arguing that the predatory-offender-registration statute did not apply to them. The district court denied Lilles-kov’s motion. Another judge of the district court granted Hicks’s motion to dismiss, but certified the question to this court, consolidating the case with that of Lilleskov, whose case was apparently before that judge for calendaring.

ISSUE

Does the predatory-offender-registration statute, as amended in 1994, apply to juvenile offenders adjudicated delinquent for a qualifying offense before the effective date of the amendment?

ANALYSIS

The district court may certify a question to this court in a criminal case, if the defendant consents to the certification. Minn. R.Crim. P. 28.03. The district court, however, must frame the question and answer the question in its certification order. Id.; State v. Saunders, 542 N.W.2d 67, 69 (Minn.App.1996).

The district court framed the issue as “whether the Defendant is a ‘person required to register’ pursuant to [the predatory-offender-registration statute].” The court indicated its conclusion that Hicks (and apparently Lilleskov as well) was not required to register. Although it would have been preferable for the district court to set forth its reasoning, it appears that the district court adopted the defense argument summarized in the court’.s memorandum. See generally State v. Brink, 500 N.W.2d 799, 802 (Minn.App.1993) (stating that the district court must “decide and specify the precise legal question certified”).

The state, which as the nonpre-vailing party in the district court acts as the appellant in this case, has presented a number of constitutional arguments in its brief. These issues are outside the scope of the certified question, which does not address any constitutional challenges to Minn.Stat. § 243.166, subd. 1. See Saunders, 542 N.W.2d at 70 (declining to address issues not within precise legal question certified for review). We note, however, that this court has held that the predatory-offender-registration statute, as applied to offenders who committed their qualifying offenses before its effective date, does not violate the federal or state constitutional prohibition of ex-post-facto laws. State v. Manning, 532 N.W.2d 244, 248-49 (Minn.App.1995), review denied (Minn. July 20, 1995); see also In re Welfare of C.D.N., 559 N.W.2d 431, 433 (Minn.App.1997) (extending Manning holding on nonpunitive nature of registration statute to registration of juvenile offenders).

The district court concluded that the statute, as amended in 1994, does not apply to Hicks and Lilleskov, resting its conclusion on the statutory presumption against retroactive legislation. See Minn. Stat. § 645.21 (2000). That presumption requires that, for a statute to apply retroactively, the intent that it do so must be “clearly and manifestly” indicated. Id.

Minnesota’s sex-offender-registration statute, as it was then called, was enacted in 1991 after the Jacob Wetterling kidnapping but before the widespread enactment of so-called “Megan’s Laws” across the country in 1994 and succeeding years. See 1991 Minn. Laws ch. 285, § 3; Walsh & Cohen, Sex Offender Registration and Community Notification 1-1, -2 (2001). The statute as first enacted required the sex offender to register upon release from prison. 1991 Minn. Laws ch. 285, § 3. It was soon amended, however, to require the offender to register as soon as he was assigned a corrections agent. 1993 Minn. Laws ch. 326, art. 10, § 3.

As amended in 1993, the statute applied to persons “charged with a felony violation of or attempt to violate” various enumerated criminal statutes, “and convicted of that offense” or another offense arising out of the same circumstances. Id. § 1. The 1994 amendment at issue in this appeal extended the statute to certain juvenile offenders, to make the statute read:

A person shall register under this section if: (1) the person was charged with or petitioned for a felony violation of or attempt to violate any of the following [enumerated statutes], and convicted of or adjudicated delinquent for that offense or of another offense arising out of the same set of circumstances; * * *.

1994 Minn. Laws ch. 636, art. 4, § 5 (emphasis added); see Minn.Stat. § 243.166, subd. 1(1) (1994).

In seeking the legislative intent behind the 1994 amendment, we must first consider that the 1994 law amended a statute that was already retroactive by its operation, and that the 1994 amendment merely added a new class of offenders subject to the registration requirement. The purpose of the predatory-offender-registration statute “is to create an offender registry to assist law enforcement with investigations.” Boutin v. LaFleur, 591 N.W.2d 711, 717 (Minn.1999). The statute, by making the offender register upon his release into the community, either on probation or following release from prison, necessarily operates without regard to the date of his conviction. See Manning, 532 N.W.2d at 247 (recognizing that registration statute applicable based on date of release from prison was being applied retroactively to offenses previously committed); see generally Ubel v. State, 547 N.W.2d 366, 372 (Minn.1996) (holding that 1993 amendment taxing earlier event necessarily required retroactive application). The intended goal of the statute, to monitor sex offenders released into the community, would have been substantially impeded if it applied only to offenders who committed their offense after the statute’s effective date. Many of those offenders would have had lengthy prison terms to serve before becoming subject to the statute’s requirements.

Thus, almost all of the “Megan’s Laws” adopted around the country have been applied retroactively, either through explicit language or by judicial interpretation. See Doe v. Poritz, 142 N. J. 1, 662 A.2d 367, 428 (1995) (Stein, J., dissenting) (noting that only five states, not including Minnesota, do not apply their statute retroactively); Comment, 81 Minn. L.Rev. 501, 515 (1996) (noting that most states apply their registration law retroactively to offenses committed before the effective date of the statute). The predatory-offender-registration statute, which imposes a duty to register based on a status that is triggered by an earlier act, can hardly be understood except as applied retroactively. While we recognize the presumption against retroactive legislation, a provision that only future sex offenders register would have little effect except in the distant future. Of those states whose registration statutes are not applied retroactively, it appears that all have explicit language making the registration requirement prospective only, and none has been so construed by the courts in the absence of such language. See Ark.Code Ann. § 12-12-905 (2002); Colo.Rey.Stat. § 16-22-103 (2002); Fla. Stat. § 775.21 (2002); 730 Ill. Comp. Stat. 150/2 (2002); Kan. Stat. Ann. § 22-4902 (2002).

The 1994 amendment at issue here merely added to an already retroactive statute a new class of offenders (juvenile offenders) subject to its requirements. Although amendments are generally presumed to be prospective in effect, an amendment that merely clarifies the legislature’s intent may be applied retroactively. Lassen v. First Bank Eden Prairie, 514 N.W.2d 831, 835 (Minn.App.1994), review denied (Minn. June 29, 1994). The 1994 amendment clarified the legislature’s intent that the age of the predatory offender was irrelevant to the duty to register. Cf. State v. Ronquist, 600 N.W.2d 444, 449 (Minn.1999) (holding that amendment requiring grand jury indictment did not merely clarify statute mandating life imprisonment for certain repeat sex offenders). It would be unreasonable to limit this amendment to a prospective effect, inferring a legislative intent that whereas all adult predatory offenders were required to register, only future juvenile offenders would be required to do so. Cf. Thompson v. Comm’r of Pub. Safety, 567 N.W.2d 280, 282 (Minn.App.1997) (holding that legislature is presumed to have intended all parts of statute to be effective), review denied (Minn. Sept. 25, 1997).

The 1994 law adding juvenile predatory offenders also added an alternative method of notifying offenders of the duty to register. It provided that if the offender were not notified of the duty at sentencing, he would be notified by his assigned corrections agent. 1994 Minn. Laws ch. 636, art. 4, § 6. One apparent purpose of this alternative method of notification was to give notice to offenders who had not been previously required to register. That notification procedure implies an acknowledgement that the amendment would have the retroactive effect of applying to offenders who had already been adjudicated.

The legislature in the 1994 act made one part of its changes to the predatory-offender-registration statute prospective only. The criminal-penalty provision of the law, which reclassified the failure to register from a misdemeanor to a gross misdemeanor, was made applicable “to crimes committed on or after” the effective date. Id. at § 42. This provision recognized that any enhancement of the criminal penalty would violate the ex-post-facto prohibition unless it was made prospective only. By not specifying that other changes to the statute would be prospective-only, the legislature apparently recognized that making them retroactive would not violate ex-post-facto prohibitions. The supreme court has confirmed that judgment, holding that the statute is regulatory rather than punitive. Boutin, 591 N.W.2d at 717. The absence of any ex-post-facto prohibition against extending the registration requirement retroactively to juvenile offenders, of course, does not prove that retroactive application was the legislature’s intent. But it corroborates the other evidence of an intended retroactive application.

The 1994 amendment to Minn.Stat. § 243.166, subd. 1, did not contain a clear statement that it was to be applied retroactively. But the statute that it amended did provide that it applied retroactively, and its retroactive effect is clear. See 1991 Minn. Laws ch. 285, § 13(a) (providing specifically that registration requirement applied to offenders released from prison on or after August 1, 1991). Because the 1994 amendment merely extended the scope of the statute, thereby clarifying the legislature’s intent, we hold the 1994 amendment is also retroactive. Thus, in answer to the certified question, Minn. Stat. § 243.166 does apply to respondents, although their juvenile offenses were committed before the effective date of the statute.

DECISION

The predatory-offender-registration statute, Minn.Stat. § 243.166, applies to respondents.

Certified question answered in the affirmative.


author: ROBERT H. SCHUMACHER, Judge.

text:
    In re the Marriage of Christopher L. SCHROEDER, Petitioner, Appellant, v. Michele M. SCHROEDER, Respondent.
    No. C2-02-1840.
    Court of Appeals of Minnesota.
    April 8, 2003.

      Kay Nord Hunt, Marc A. Johannsen, Lommen, Nelson, Cole Stageberg, P.A., Minneapolis, MN, for appellant.
    Arthur M. Albertson, Jean E. Johnson, Duluth, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant-father claims the district court érred by asserting subject matter jurisdiction over a California child custody and support order and modifying the order. Father argues California retained jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Minn.Stat. § 518D (2002), the Uniform Interstate Family Support Act, Minn.Stat. § 518C (2002), and the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B (2000). We reverse.

FACTS

In July 1998, the marriage of appellant-father Christopher L. Schroeder and respondent-mother Michele M. Schroeder was dissolved in the Superior Court of California, San Mateo County. At the time of dissolution, father was living in California and mother was living in Minnesota. Pursuant to a stipulated order entered in the same court, father was granted physical custody of the parties’ minor child subject to mother’s reasonable visitation and mother was required to pay child support.

The child resided in California until November 1999, when he refused to return to father following a visit to mother in Minnesota. Since that time, child has resided exclusively with mother and mother has made no child support payments.

In April 2002 mother registered the California order in Minnesota district court for enforcement pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Minn.Stat. § 518D (2002). Father did not request a hearing to contest the validity or enforcement of the registered order, as authorized by section 518D.305(d).

Mother subsequently filed a motion in Minnesota district court to modify the California order by granting her physical custody of the child and terminating her support obligation. Father moved the Minnesota court to dismiss mother’s motions on the grounds the California court had continuing exclusive subject matter jurisdiction. The district court issued an order accepting jurisdiction, appointed a guardian ad litem, and suspended mother’s support obligation.

Father appeals, arguing the Minnesota district court lacked subject matter jurisdiction to modify the California custody and support order. Following father’s notice of appeal, the district court stayed the scheduled hearing on the substantive custody and support issues pending this court’s determination of the jurisdictional issue.

ISSUE

Did the district court have subject matter jurisdiction to modify the California order?

ANALYSIS

Application of the Uniform Child Custody Jurisdiction Act (UCCJEA) involves questions of subject matter jurisdiction. See Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002) (noting application of UCCJEA’s predecessor statute involved questions of subject matter jurisdiction). A district court’s determination of subject matter jurisdiction is a question of law, which this court reviews de novo. Id.

Father, argues first the district court lacked subject matter jurisdiction to modify the custody provision of the California order under the UCCJEA as adopted in Minnesota and California. See Minn.Stat. § 518D (2002); Cal. Fam.Code § 3400-25 (West 2002). We agree.

The UCCJEA provides that the state issuing a custody decree will generally retain exclusive, continuing jurisdiction over the decree as long as that state remains the residence of the children or a parent. Minn.Stat. § 518D.202, .203(2); Cal. Fam. Code § 3422. It is undisputed that father is still a resident of California. The Minnesota court therefore lacks subject matter jurisdiction to modify the California custody order.

Mother argues father waived his right to challenge the district court’s decision finding jurisdiction, by failing to timely object to the registration of the custody order in Minnesota. We disagree. First, “[wjhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Minn. R. Civ. P. 12.08(c); see also Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App.1995) (stating “lack of subject matter jurisdiction may be raised at any time, including for the first time on appeal”) (citations omitted), review denied (Minn. May 31, 1995). Father could not confer subject matter jurisdiction to the district court either by waiver or consent. Hemmesch v. Molitor, 328 N.W.2d 445, 447 (Minn.1983).

Second, mother’s argument imprecisely relies on chapter 518D, which establishes the procedure for registering another state’s custody order in Minnesota “with or without a simultaneous request for enforcement * * Minn.Stat. § 518D.305(a) (emphasis added). Mother contends father’s jurisdictional challenge is precluded by the statute’s provision that

failure to contest the registration [within 20 days] will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

Minn.Stat. § 518D.305(c)(3) (emphasis added). Chapter 518D does not provide that confirmation of a custody determination for enforcement generates or transfers jurisdiction,- or that section 518D.305 otherwise affects the issuing state’s continuing jurisdiction, which is explicitly governed by other provisions of the UCCJEA. See Minn.Stat. § 518D.202, 203(2); see also 28 U.S.C. § 1738A (2000) (requiring that state courts give full faith and credit to the custody determinations of other states). Father’s failure to timely challenge mother’s registration of the California order did not bar his challenge to subject matter jurisdiction.

The California court had exclusive, continuing jurisdiction over custody. The Minnesota district court was precluded from asserting jurisdiction.

Father next argues California’s continuing jurisdiction over the support provision of the 1996 order precluded the Minnesota court’s assertion of jurisdiction under the Uniform Interstate Family Support Act (UIFSA), Minn.Stat. § 518C (2002) and under the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B (2000). We agree.

The UIFSA allows the registration of a support order from another state “for enforcement.” Minn.Stat. § 518C.601. Among the procedural prerequisites for registration is the filing of a sworn or certified statement “showing the amount of any arrearage.” Minn.Stat. § 518C.602(a)(3). Because mother is the obligor here, she is owed no arrearages in child support. Thus, mother has no support or arrearage-related issue as to the California support order that she can enforce against father and mother was not entitled to register it for enforcement in Minnesota. See Stone v. Stone, 636 N.W.2d 594, 596-97 (Minn.App.2001) (holding party not entitled to register support order when no child-support arrearages were at issue).

Even had mother presented a valid ar-rearages- issue, registration would be barred by Minn.Stat. § 518C.609, which governs the procedure to register a child support order from another state for modification. A Minnesota court may modify a foreign support order only if it finds, among other things, that (1) the child, the obligee, and the obligor, do not reside in the issuing state, and (2) the petitioner is a nonresident of Minnesota. Minn.Stat. § 518C.611(a)(l)(i)-(ii).

Here, father-obligee resides in California and mother-obligor resides in Minnesota. Thus, mother cannot satisfy the requirements for modification of the California support order. See Rivera v. Ramsey County, 615 N.W.2d 854, 858 (Minn.App.2000) (stating that if neither of the parents nor the child reside in the state that issued an existing child-support order, a court in another state may modify a properly registered order); see also 28 U.S.C. § 1738B(i) (providing that a party seeking to modify in one state a child-support order issued in another state may only register the order for modification “[i]f there is no individual contestant or child residing in the issuing State”).

DECISION

California has continuing, exclusive jurisdiction over custody of the parties’ minor child pursuant to the UCCJEA. Mother cannot currently register the support-related aspects of the California order in Minnesota courts under the UIFSA and 28 U.S.C. §§ 738A, 1738B (2000). We reverse the district court and vacate its order.

Reversed; judgment vacated.


text:
    STATE of Minnesota, ex rel. Norman Scott ALLEN, Petitioner, Appellant, v. Joan FABIAN, Commissioner of Corrections, Respondent.
    No. C0-03-17.
    Court of Appeals of Minnesota.
    April 8, 2003.

      John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Kari Jo Ferguson, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, HARTEN, Judge, and HALBROOKS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This is an expedited appeal from an order denying appellant Norman Allen’s petition for a writ of habeas corpus challenging his confinement following a revocation of his supervised release. Appellant argues that the district court erred in summarily denying the petition and appellant’s motion for reconsideration. We reverse and remand.

FACTS

Allen was convicted and sentenced in 1999 for third-degree criminal sexual conduct. According to an affidavit Allen submitted to the district court in support of his petition, this conviction was for having sexual intercourse with the teenage daughter of Allen’s girlfriend. Allen was originally released from prison on supervised release on March 7, 2000. Allen states that he was not prohibited at that time from having access to a computer or to the Internet. After his first revocation and a return to prison, Allen was released from prison again on February 14, 2002. A special condition was added to his release that prohibited him from owning or operating a computer with Internet-access capabilities or from accessing the Internet without his probation officer’s approval.

After Allen purchased a cellular phone with Internet capabilities, Allen’s probation officer initiated proceedings to revoke his supervised release. Following a hearing, the Department of Corrections Hearing Officer revoked Allen’s supervised release and assigned him 365 days in prison. The hearing officer also ordered that Allen complete a sex-offender treatment program in prison before he could be released.

About seven months later, Allen filed a petition for a writ of habeas corpus, claiming that the no-Internet-access condition was not reasonably related to his offense and unduly restricted his liberty. Allen alleged that this finding “contributed to” the Department of Correction’s decision to revoke his supervised release. Allen also complained that the sex offender treatment program at Lino Lakes could not be completed within the 365 days he was ordered to serve.

The district court summarily denied Allen’s petition before respondent had filed a reply, citing Allen’s failure to provide a transcript of the proceedings leading to his criminal conviction. Allen then filed a motion to reconsider, which the district court denied on the grounds that Allen had not sought the court’s permission to file the motion. See Minn. R. Gen. Pract. 115.11 (providing that motions to reconsider are prohibited except by express permission of the court, which is to be sought only by letter). This appeal followed.

ISSUE

Was appellant required to file a copy of his arraignment and sentencing transcripts with his petition for writ of habeas corpus?

ANALYSIS

This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings if they are reasonably supported by the evidence. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn.App.1991). This court, however, reviews questions of law de novo. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn.App.1993), review denied (Minn. Mar. 11, 1993).

The district court construed Minn. Stat. § 589.04(e) (2002) as requiring a ha-beas petitioner to support his petition with copies of the arraignment and sentencing transcripts even when the petitioner is confined following a revocation of supervised release. The construction of a statute is a legal question subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

The statute provides, in pertinent part, as follows:

A petition for a writ of habeas corpus must contain information set forth in paragraphs (a) to (e):
* * *
(e) * * * If the confinement results from conviction of a crime and sentence, the petitioner shall include a transcript of the proceedings taken at the time of arraignment and sentence in the court which imposed the sentence. If the petitioner is unable to attach the documents required by this paragraph, the petitioner shall state the reasons for not doing so.

Minn.Stat. § 589.04(e) (2002). The district court summarily denied appellant’s petition because he did not attach copies of his arraignment and sentencing transcripts and did not state any reasons for his failure to do so.

Appellant argues that Minn.Stat. § 589.04(e) does not apply here because his confinement resulted from a revocation of supervised release, not “from conviction of a crime and sentence.” Id. We agree. Certainly, revocation of supervised release can only occur at some point in time after a person has been convicted of a crime and sentenced. But revocation results directly not from the district court’s sentence but from the Department of Corrections’ finding of a violation of the supervised release the defendant has gained by serving a portion of his prison term. See Minn.Stat. § 244.05, subd. 3(2) (2002); see generally State v. Schwartz, 628 N.W.2d 134, 138 — 41 (Minn.2001) (holding that commissioner of corrections’ broad authority over supervised release, including revocation of that release, does not violate the separation of powers).

Supervised release replaces parole, which, as the Supreme Court noted years ago, “is not part of a criminal prosecution.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive.

Id.

The statutory requirement that the ha-beas petition be supported by transcripts from the arraignment and sentencing dates back to a time when inmates routinely used habeas corpus as a means to obtain review of their criminal convictions or sentences. See Minn.Stat. § 589.04(4) (1961) (requiring attachment of arraignment and sentencing transcripts); see generally Breeding v. Utecht, 239 Minn. 137, 139, 59 N.W.2d 314, 316 (1953) (holding scope of habeas review of confinement under criminal sentence was limited to whether criminal court had personal and subject-matter jurisdiction and whether the sentence was authorized by law). The transcript of the arraignment would show whether the court had personal jurisdiction, and the sentencing transcript would indicate whether the sentence was authorized. But following the enactment of the postconviction statute, habeas petitions were generally no longer used to attack a criminal conviction or sentence. See Kelsey v. State, 283 N.W.2d 892, 894 (Minn.1979). Those transcripts would presumably have no bearing on Allen’s claim that the no-Internet-access condition was illegal and that his supervised release should not have been revoked for violating it.

The general rule is that a petition for habeas corpus should be liberally construed in favor of the liberty of the citizen. State ex rel. Adams v. Jackson, 254 Minn. 164, 166, 94 N.W.2d 285, 286 (1959). We cannot construe Minn.Stat. § 589.04(e) as requiring documentation from the petitioner’s criminal prosecution when he is challenging a revocation of supervised release.

We conclude that the district court erred in summarily denying the petition and remand for further proceedings on the petition. Because this appeal was timely filed from the order denying the petition, we need not address the district court’s denial of appellant’s motion for reconsideration.

DECISION

Appellant’s habeas petition challenging the revocation of his supervised release was not required to be supported by his arraignment and sentencing transcripts. Therefore, the district court erred in summarily denying the petition.

Reversed and remanded.


author: SCHUMACHER, J.

text:
    Dean P. VLAHOS, et al., Appellants, v. R & I CONSTRUCTION OF BLOOMINGTON, INC., f/k/a Robert Waade & Associates, Inc., et al., Respondents, John DOE, et al., Defendants, and R & I Construction Of Bloomington, Inc., f/k/a Robert Waade & Associates, Inc., et al., third party plaintiffs, Respondents, v. Quality Insulation, Inc., third party defendant, Respondent, Intex Insulating Co., Inc., Third Party Defendant, Kleve Heating & Air Conditioning, Inc., third party defendant, Respondent, Tappe Construction Co., third party defendant, Respondent, Donnelly Brothers Construction Company, Inc., third party defendant, Respondent, Collins Electrical Construction Co., third party defendant, Respondent, Weather Shield Mfg., Inc., Third Party Defendant.
    No. C7-02-1428.
    Court of Appeals of Minnesota.
    April 9, 2003.

      Robert R. Weinstine, John C. Holper, Karl E. Robinson, Winthrop & Weinstine, P.A., St. Paul, for appellants.
    Robert W. Kettering, Jr., Anton J. Van der Merwe, Douglas D. McGhee, Arthur, Chapman, Kettering, Smetak & Pikala, PA, Minneapolis, for respondents R & I Construction of Bloomington et al.
    Michael R. Moline, Conley & Borgeson, St. Paul, for respondent Quality Insulation.
    John E. Varpness, Gislason, Martin & Varpness, P.A., Minneapolis, for respondent Kleve Heating & Air Conditioning.
    Michael D. Carr, Fitch, Johnson, Larson, Walsh & Held, P.A., Minneapolis, Bruce A. Boeder, Lambert & Boeder, Wayzata, Michael D. Barrett, Cousineau, McGuire & Anderson, Minneapolis, for respondent Tappe Construction.
    Peter M. Waldeck, Timothy W. Waldeck, Waldeck & Lind, P.A., Minneapolis, for respondent Donnelly Brothers Construction.
    Jocelyn L. Knoll, Fabyanske, Westra & Hart, Minneapolis, for respondent Collins Electrical Construction.
    Considered and decided by SCHUMACHER, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
   OPINION

SCHUMACHER, J.

Appellants Dean and Michelle Vlahos argue that the district court erred by granting respondents’ motions for summary judgment, dismissing the Vlahos’s lawsuit as barred by the applicable statute of limitations and as not alleging “major construction defects” as defined by statute. We affirm.

FACTS

On or about June 1, 1990, respondent R & I Construction of Bloomington, Inc., f/k/a Robert Waade & Associates, Inc. entered into a contract with Roger and Carol Rovick to construct a home at 3680 North-home Road in Deephaven on Lake Minne-tonka. Appellants Dean P. Vlahos and Michelle R. Vlahos purchased the home from the Rovicks. The Rovicks and R & I elected not to employ an architect or engineer for construction of the home. About August 28, 1991, the home was substantially completed, a certifícate of occupancy was issued, and the Rovicks moved in.

The Rovicks had water problems in the home during their occupancy. Their deposition testimony showed that they caulked and re-caulked the home every spring, there were numerous occasions when water seeped into the home in the lower level, they noticed water dripping from the ceding and replaced an eight foot by ten foot section of the ceiling because of the water damage, experienced warping of a parquet floor that they then replaced with a marble floor, and replaced a water-damaged beam. Additionally, Roger Rovick testified that “after many years” respondent Kleve Heating & Air Conditioning, Inc. fixed a condensation problem with the windows in the swimming pool area with a dehumidifying system. The home had an indoor hot-tub.

Appellants purchased the home from the Rovicks for $5.175 million and moved in on March 13, 2000. Appellants undertook an extensive remodeling project beginning in April 2000. It was during the remodeling that they discovered the previous water damage to the home. Appellants claim that they were not aware of the extensive damage prior to the remodeling. Respondents point out that the Rovicks’ property disclosure statement disclosed “roof, wall or ceiling damage caused by water,” and appellants’ inspection report identified areas of water seepage, leakage, corrosion, and mold.

The Rovicks maintain that the problems of which they were aware regarding water penetration were isolated, not significant, and had been fixed prior to the sale to appellants. Appellants claim that much of the water damage was discovered behind the walls and involved “decay of interior floor trusses, ceiling trusses, and other load-bearing supports ' throughout the [residence.”

Appellants initiated this lawsuit against R & I on April 23, 2001. Appellants spent $3.8 million for remodeling, of which they attributed $1.118 million to the water damages. R & I asserted third-party claims against Kleve Heating and other subcontractors. Respondents contended that appellants’ lawsuit was barred by Minn.Stat. § 541.051 (2002), a statute of limitations limiting claims against entities involved in providing an improvement to real property to two-years from “discovery of the injury.”

The district court decided on summary judgment that the Rovicks knew or should have known of the water damage many years prior to appellants’ initiation of suit and concluded that the statute’s plain language barred appellants’ action because the “discovery of the injury to the real property” had occurred more than two years prior to appellants’ lawsuit. The court also concluded that the construction defects leading to the water penetration and damage were not “major construction defects” under the statutory home warranty set forth in Minn.Stat. § 327A.02 (2002).

ISSUES

1. Does a fact issue exist as to whether the Rovicks knew or should have known of the water problem to the home prior to April 1,1999?

2. Does Minn.Stat. § 541.051, subd. 1(a) (1998) bar a claim by a subsequent purchaser of a home if the previous owner had notice of the injury to the home more than two years prior to initiation of a lawsuit?

3. Are real property defects arising after construction “major construction defects” under Minn.Stat. § 327A.02 (2002)?

ANALYSIS

When reviewing a district court’s order granting summary judgment, the appellate court reviews the record to determine whether any genuine issues of material fact exist and whether the district court properly applied the law. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn. 2000). When deciding whether or not an issue of material fact exists, the evidence is viewed in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). A material fact issue does not exist when the non-moving party presents evidence that only creates a “metaphysical doubt as to a factual issue,” not “sufficiently probative with respect to as essential element of the non-moving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997).

The interpretation of a statute is a legal determination, which this court reviews de novo. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Minn.Stat. § 541.051, subd. 1(a) (1998) provides as follows:

Except where fraud is involved, no action by any person * * * to recover damages for any injury to property * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought -against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property * * * more than two years after discovery of the injury * * *.

1. The district court concluded that the Rovicks knew or should have known of the injury to the home at some point prior to April of 1999. The court did not find credible the Rovicks’ claims that they were unaware of the water problem or thought that the problems had been rectified. The court concluded that no fact issue existed as to whether or not the Rovicks knew of the water problems for purposes of initiating the two-year statute of limitations period.

Appellants contend that the issue as to whether or not the Rovicks’ notice rose to a level sufficient to trigger the statute of limitations amounts to a fact issue not suitable for summary judgment. Respondents contend that the evidence clearly indicates the Rovicks knew about the water problems, knew that they were significant, and knew that they were continuing.

“[WJhen reasonable minds may differ about the discovery of the injury or condition, the issue is one for the trier of fact.” Metro. Life Ins. Co. v. M.A. Mortenson Co., Inc., 545 N.W.2d 394, 399 (Minn.App.1996) (quotation omitted), review denied (Minn. May 21, 1996). In Metro. Life, the defect was leaking windows. This court affirmed the district court’s grant of summary judgment, deciding that no fact issue existed as to whether or not the building owners had sufficient notice of the problem more than two years prior to initiating suit:

The facts here do not include a temporary solution or cessation of the injury. The building engineer testified that he observed the condition “more or less continually” after late 1987 or early 1988. Met Life’s water problem was neither intermittent nor thought to be insignificant, and its discovery occurred more than two years before Met Life brought this action.

Id. Under the facts and evidence involved in Metro. Life, the issue as to when notice occurred was clear and did not preclude summary judgment.

In the present case, the Rovicks conceded they had ongoing water penetration problems about which they had numerous discussions with the construction entities. The Rovicks undertook significant repairs to the home due to the water problems, including replacing a fairly large portion of the ceiling in the lower level and replacing a wood floor with marble. Roger Rovick testified that they were caulking and painting every spring because of the water penetration. The Rovicks had numerous discussions about the water problems with R & I and Kleve Heating. Based on these undisputed facts, the district court correctly concluded that no issue of material fact existed as to whether or not the Rovicks had notice of the injury to the home prior to April of 1999.

2. Appellants argue that the district court erred by “imputing” the Ro-vicks’ notice of the injury to the home to them, thereby barring appellants’ lawsuit under Minn.Stat. § 541.051. Appellants maintain that subsequent purchasers cannot be barred under the statute of limitations unless and until their own notice of the injury triggers the two-year limitation under Minn.Stat. § 541.051, and therefore notice to the Rovicks did not constitute notice to them.

Interpreting the statute is a legal determination subject to de novo review. FrosP-Benco Elec., 358 N.W.2d at 642. This court owes the district court’s interpretation no deference. Minn.Stat. § 541.051 provides that

no action by any person * * * to recover damages for any injury to property * * * arising out of the defective and unsafe condition of an improvement to real property, * * * shall be brought against any person performing * * * construction of the improvement to real property * * * more than two years after discovery of the injury, * * * nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.

(Emphasis added.) The statute does not speak of “the claimant’s injury,” nor does it speak of “discovery of the injury by the claimant.” Also, the statute uses the terms “any person” and “any injury.” We conclude that the plain language of the statute supports the district court’s determination that appellants’ claims are time-barred.

Appellants argue that an exception should be made similar to “notice to the claimant” exceptions the courts have made in other contexts, thereby allowing their claim to go forward. Here, however, there is a clear statutory prohibition. Appellants maintain it is unfair to bar their claim simply because the previous owners failed to pursue an action against R & I. But the statute speaks of “any injury to property.” Unfortunately, even though appellants did not have a right to assert “an action * * * to recover damages” for the injury to the home until after they owned it, the plain language of the statute bars their claim. A statutory change to allow a subsequent purchaser the right to pursue a claim is the province of the legislature.

Appellants allude to the inequity of this result. We are not convinced. Although the plain language of the statute bars a claim against respondents, appellants have a potential cause of action against the Ro-vicks, as would any subsequent purchaser when the previous owner had notice of the construction defect triggering the statute of limitations. Whether appellants or any subsequent purchaser ultimately recovers from the previous owners depend on the disclosures made or not made at the time of sale and the risks assumed by each party to the sale. The statute does not create inequity. It simply places the risk on the party or parties with notice of the problems.

3. Appellants further contend the district court erred in dismissing their claim under Minn.Stat. § 327A.02 (2002), the statutory warranty provision. Appellants argue that the district court erred in concluding that the property damage of which they complain does not constitute “major construction defects” under the statute. Appellants maintain that the water damage is significant and affects load-bearing structures in the home, thereby triggering the protection of the warranty statute and allowing their claim to survive summary judgment.

The statute defines the term “major construction defect”:

“Major construction defect” means actual damage to the load-bearing portion of the dwelling or the home improvement, including damage due to subsidence, expansion or lateral movement of the soil, which affects the load-bearing function and which vitally affects or is imminently likely to vitally affect use of the dwelling or the home improvement for residential purposes. “Major construction defect” does not include damage due to movement of the soil caused by flood, earthquake or other natural disaster.

Minn.Stat. § 327A.01 subd. 5 (2002). The statutory warranty attaches to the construction as completed; the warranty does not extend to defects of a significant nature by outside forces arising after completion of construction.

Appellants point to damage to the walls, ceiling, and floor trusses as evidence of major construction defects. They claim that at least some of this damage “affects the load-bearing function” of the home. The damage appellants point to as major construction defects are not problems with the finished construction itself, but instead are damages to the home that occurred after the construction was completed. The major defects were not construction defects; rather, the defects may have become major only after the water penetration damaged the original construction. Upon completion of construction, and as respondents surrendered the home to the Rovicks, the home did not have major construction defects as Minn.Stat. §§ 327A.01 and .02 contemplates. Accordingly, no viable claim arises under Minn. Stat. § 327A.01. As such, we need not address the issue of when notice of any such breach occurred for purposes of the statute of limitations under Minn.Stat. § 541.051. The district court’s dismissal of the statutory warranty claim was proper.

DECISION

The district court properly granted respondents’ motions for summary judgment.

Affirmed.

      . Appellants also made a claim against the Rovicks. That claim was arbitrated under the purchase agreement.


author: PER CURIAM.

text:
    2003 SD 29
    Alma and George SMALL, Plaintiffs and Appellants, v. STATE of South Dakota, Department of Social Services Office of Child Protection Services, Defendant and Appellee.
    No. 22513.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided March 12, 2003.
    Neil E. Carsrud of Dakota Plains Legal Services, Mission, for plaintiffs and appellants.
    Lawrence E. Long, Attorney General, Kirsten E. Jasper, Special Assistant Attorney General, Pierre, for defendant and appellee.
   PER CURIAM.

[¶ 1.] Alma and George Small appeal from an order dismissing their amended complaint for declaratory judgment on the basis that the circuit court lacked jurisdiction to hear the matter. We affirm.

FACTS

[¶ 2.] On February 15, 1985 the Department of Social Services filed a petition in circuit court alleging that the Smalls’ five children were dependent and neglected children as defined by SDCL ch. 26-8, now SDCL ch. 26-8A. The Smalls admitted the allegations in the petition. As a result, the court declared the children to be dependent children within the meaning of SDCL 26-8 and to be wards of the court. DSS was appointed guardian over the children.

[¶ 3.] In May 1995 the Smalls registered with the Rosebud Sioux Tribe to do foster care. In 1998 the tribe began the process of becoming a foster care licensing agency in affiliation with the State of South Dakota. As a part of this process the tribe had all foster parents screened through the central registry for child abuse and neglect maintained by DSS pursuant to SDCL 26-8A-10.

[¶ 4.] As a result of the screening DSS became aware that the Smalls’ names appeared on the central registry due to the 1985 adjudication. Following an informal review, DSS denied the Smalls’ request to remove their names from the registry.

[¶ 5.] Pursuant to SDCL 26-8A-11 the Smalls requested an administrative hearing to review the DSS decision to keep their names on the central registry. Following the hearing, the hearing officer concluded that ARSD 67:14:39:09 precluded an individual who has been adjudicated to have abused or neglected a child or has been convicted under SDCL ch 22-22 or SDCL 26-10-1 from requesting removal from the registry. Therefore, the hearing officer concluded that DSS’s determination that the Smalls’ name should remain on the central registry was supported by a preponderance of the evidence.

[¶ 6.] The Secretary of DSS adopted the hearing officer’s findings of fact, conclusions of law and decision and entered a final decision on August 4,1999. Notice of entry of the final decision was sent to the Smalls and they were advised that they had the right to appeal the decision to circuit court within thirty days of service of the final decision. The Smalls did not appeal.

[¶ 7.] On May 31, 2001 the Bureau of Indian Affairs’ Branch of Social Service completed a home study regarding the Smalls’ home as a foster care provider. This study concluded that their home did not meet the requirements for foster care providers based upon:

1. Felony conviction on record.
2. South Dakota Central Registry screening resulted in two substantiated reports.
3. An off reservation foster home must meet state licensing standards.

The BIA informed the Smalls that this decision would become effective on June 30, 2001.

[¶ 8.] On December 20, 2001 the Smalls filed a summons and complaint for declaratory judgment pursuant to SDCL 21-24-3. In May 2002 the circuit court granted their motion to amend the complaint. The amended complaint for declaratory judgment sought relief pursuant to SDCL 1-26-14.

[¶ 9.] The Smalls argued that they had a constitutionally protected liberty interest and had been deprived of procedural and substantive due process. They asked the court to provide one of the following alternative forms of relief:

1. An order expunging both Alma and George Small’s name from the central registry;
2. An Order granting both Alma and George a waiver to allow them to obtain another foster care license;
3. An Order directing the Department of Social Services to amend ARSD 67:14:39:09 and allow Alma and George the opportunity to have a meaningful hearing that could result in their names being expunged from the central registry; or
4. Such further or alternative relief as the Court deems appropriate.

[¶ 10.] DSS argued that Smalls’ purported declaratory judgment action was merely a blatant attempt to appeal the 1999 final decision following the administrative hearing. Because the Smalls did not appeal that decision, DSS asked for dismissal of the declaratory judgment action.

[¶ 11.] The circuit court found that it had no jurisdiction to hear the matter and filed an order of dismissal.

ISSUE

[¶ 12.] Did the circuit court err in dismissing the Smalls’ declaratory judgment action brought pursuant to SDCL 1-26-14 based upon lack of jurisdiction?

DISCUSSION

[¶ 13.] The procedure for subjects of reports of abuse or neglect to request the amendment, expungement of identifying information, or removal of the- record of the report from the central registry is found in SDCL 26-8A-11. Under this procedure the subject of a report may request an administrative hearing if DSS does not grant the relief requested or fails to act. Id In the administrative hearing the report’s accuracy is conclusively presumed if there has been a court finding of child abuse and neglect. Id Consequently the subject has no right to an administrative hearing on inaccuracy. Id In addition an individual who has found to have abused or neglected a child as adjudicated by a court may not request removal of the information. ARSD 67:14:39:09. The issue becomes whether the record of the report is being maintained in a manner inconsistent with SDCL ch 26-8A. SDCL 26-8A-11.

[¶ 14.] The hearing officer followed these dictates in determining that the DSS determination that Smalls’ names should remain in the central registry for child abuse and neglect was supported by a preponderance of the evidence. “Decisions of the department under this section are administrative decisions subject to judicial review under chapter 1-26.” SDCL 26-8A-11.

[¶ 15.] “A person who has exhausted all administrative remedies available within any agency or a party who is aggrieved by a final decision in a contested case is entitled to judicial review under [SDCL ch 1-26.]” SDCL 1-26-30. “An appeal shall be allowed in the circuit court to any party in a contested case from a final decision, ruling or action of an agency.” SDCL 1-26-30.2. On appeal, the circuit court

shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
14) Affected by other error of law;
(5) Clearly erroneous in light of the entire evidence in the record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.

SDCL 1-26-36.

[¶ 16.] Smalls’ administrative hearing was a contested case. SDCL 26-8A-11; SDCL 1-26-1(2), SDCL 28-1-24.1. It is uncontroverted that they failed to appeal to the circuit court from DSS’s final decision. This failure to appeal an adverse administrative ruling pursuant to SDCL ch 1-26 constitutes a failure to exhaust administrative remedies. Jansen v. Lemmon Federal Credit Union, 1997 SD 44, 562 N.W.2d 122.

Exhaustion of administrative remedies is a well-settled component of the Administrative Procedures Act. SDCL 1-26-30. In comparable proceedings, exhaustion is plainly required. South Dakota Bd. of Regents v. Heege, 428 N.W.2d 535, 539 (S.D.1988) (citing Robinson v. Human Relations Commission, 416 N.W.2d 864 (S.D.1987); Gottschalk v. Hegg, 89 S.D. 89, 228 N.W.2d 640 (1975)). “It is a settled rule of judicial administration that ‘no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” Id. (citing Robinson, 416 N.W.2d at 866). Failure to exhaust remedies is a jurisdictional defect. Matter of a Notice & Demand to Quash, Etc., 339 N.W.2d 785, 786 (S.D.1983). Furthermore, any claim over which an agency has jurisdiction that is raised and rejected is barred from being brought elsewhere under the doctrine of res judicata. Johnson v. Kolman, 412 N.W.2d 109, 113 (S.D.1987).

Jansen, 1997 SD 44 at ¶ 7, 562 N.W.2d at 124.

[¶ 17.] The Smalls dispute this conclusion. They contend that they were required to bring a declaratory judgment action pursuant to SDCL 1-26-14 which provides:

The validity or applicability of a rule may be determined in an action for declaratory judgment in the circuit court for the county of the plaintiffs residence if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

The Smalls contend that this Court’s decision in Homestake Mining Company v. Board of Environmental Protection, 289 N.W.2d 561 (S.D.1980) supports this contention. Their reliance is misplaced, however.

[¶ 18.] Homestake Mining did not involve a contested case procedure. It concerned rule-making. The State Environmental Protection Board adopted rules designating Whitewood Creek as a cold water fishing stream. Homestake appealed to the circuit court under SDCL 1-26-30, claiming that the appeal procedure authorized judicial review of the validity of Board’s administrative rules. This Court held that SDCL 1-26-30 was not intended to authorize appeals that question rules “in other than contested cases.” Homestake, 289 N.W.2d at 561. The Court was convinced that SDCL 1-26-30 did “not contemplate an additional procedure for a wholesale attack on the validity of administrative rules through an appeal process.” Id. The correct procedure for questioning the validity of the rules in a rule-making situation was through the declaratory judgment procedure provided by SDCL 1-26-14.

[¶ 19.] Homestake, therefore, stands for the proposition that in contested cases, like the Smalls’, rules can be contested by the appeal authorized by SDCL 1-26-30. This is consistent with the general proposition that declaratory relief under an administrative procedure act is not available for review of adjudications effected in the course of an individual proceeding. 2 Am. Jur.2d Administrative Law § 232 (2002). Consequently, their constitutional concerns and concerns regarding ARSD 67:14:39:09 should have been raised by direct appeal pursuant to SDCL 1-26-30 and considered by the circuit court vested with the authority to determine if their substantial rights had been violated by an administrative decision in violation of constitutional or statutory authority or in excess of the agency’s statutory authority. SDCL 1-26-36(1), (2).

[¶ 20.] The Smalls’ decision not to appeal pursuant to SDCL ch 1-26 deprived the circuit court of jurisdiction. Jansen, 1997 SD 44 at ¶ 8, 562 N.W.2d at 124. The circuit court properly granted DSS’s motion to dismiss.

[¶ 21.] The order of dismissal is affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . SDCL 26-8A-11 provides:
      Within thirty days after notice of a substantiated investigation by the Department of Social Services, a subject of a report of abuse or neglect may request the department to amend, expunge identifying information from, or remove the record of the report from the register. The request shall be in writing and directed to the person designated by the department in the notice. If the department refuses to do so or does not act within thirty days after receipt of the written request, the subject may request an administrative hearing within thirty days to determine whether the record of the report should be amended, expunged, or removed on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter. However, if there has been a court finding of child abuse or neglect, the report’s accuracy is conclusively presumed and the subject has no right to an administrative hearing on the ground of inaccuracy. The hearing shall be held within a reasonable time after the subject's request and at a reasonable place and hour. The appropriate local office of the Department of Social Services shall be given notice of the hearing. In the hearing, the burden of proving the accuracy and consistency of the record is on the department. The hearing examiner may order the amendment, expunction, or removal of the record to make it accurate and consistent with this chapter. However, under no circumstances, may the hearing examiner order or may the department carry out any amendment, expunction, or removal of any portion of the record that proves, affirms, corroborates, or supports the innocence of the subject of the report without the express written authority of the subject. The decision shall be made in writing within ninety days after the date of receipt of the request for a hearing and shall state the reasons upon which it is based. Decisions of the department under this section are administrative decisions subject to judicial review under chapter 1-26. In any case where there has been no substantiated report of child abuse and neglect, the department may not maintain a record or other information of unsubstantiated child abuse and neglect for longer than three years if there has been no further report within that three-year period.

      . SDCL 1-26-1(2) provides:
      (2) “Contested case,” a proceeding, including rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing but the term does not include the proceedings relating to rule making other than rate-making, proceedings related to inmate disciplinary matters as defined in § 1-15-20, or student academic or disciplinary proceedings under the jurisdiction of the Board of Regents or complaints brought by students attending institutions controlled by the Board of Regents about their residency classification under §§ 13-53-23 to 13-53-41, inclusive.