author: PAGE, Justice.

text:
    Leonard SCHMIEG, Respondent, v. COUNTY OF CHISAGO, Relator.
    No. A07-503.
    Supreme Court of Minnesota.
    Nov. 1, 2007.

      Janet A. Reiter, Chisago County Attorney, Kristine Nelson Fuge, Assistant County Attorney, Center City, MN, for Appellant.
    Leonard Schmieg, St. Paul, MN, Pro Se Respondent.
   OPINION

PAGE, Justice.

The Chisago County assessor classified a parcel of land owned by Leonard Schmieg as commercial for property tax purposes for taxes payable in 2005. Schmieg appealed the classification to the Minnesota Tax Court. The tax court concluded that the classification was erroneous and ordered that the subject property be classified as agricultural non-homestead under Minn.Stat. § 273.13, subd. 23(b)(3) (2006). In its brief, the county argues that the rental of a billboard located on the southern half of the subject property justified a commercial classification, and that an agricultural classification of the property is not supported by the evidence. For the reasons discussed below, we reverse the decision of the tax court and remand for further proceedings.

The subject property is located in Harris, Minnesota, north of County Road 10 and east of Interstate Highway 35. The property is approximately 41.7 acres in size, and is divided roughly in half by a creek.

Schmieg conducted a variety of activities on the southern half of the property during the time at issue. He maintained 34 beehives for the production of honey and beeswax, as well as for pollinating crops. The hives had not yet yielded significant amounts of honey, but Schmieg intended to enlarge his operation and had started a business for that purpose. In 2005, the beehives brought in about $200 in income, but also cost Schmieg $1,887 in expenses. Schmieg also raised vegetables and corn on the southern half of the property, along with a small number of tree saplings that he intends to sell when they reach a sufficient height to transplant. In addition, Schmieg leased a billboard on the southern half of the property to 3M Media. The lease called for Schmieg to be paid $3,500 in 2005. The northern half of the property is largely inaccessible due to the creek, which impedes access.

Before it was reclassified, the property had an agricultural classification. According to the county, the reclassification of the property as commercial was justified by the presence of the billboard on the southern half of the property. Schmieg appealed the county’s reclassification of the property to the tax court, claiming that the property should have an agricultural classification. After a hearing, the tax court determined that the county’s classification of the property was erroneous and ordered that the entire property be reclassified as non-homestead agricultural. This appeal followed.

I.

We review tax court decisions to determine whether the court lacked jurisdiction, whether the court’s decision is supported by the evidence and in conformity with the law, and whether the court committed any other error of law. Jefferson v. Comm’r of Revenue, 631 N.W.2d 391, 394 (Minn.2001); see also Minn.Stat. § 271.10, subd. 1 (2006). We are not bound by decisions of the tax court. A & H Vending Co. v. Comm’r of Revenue, 608 N.W.2d 544, 546 (Minn.2000). Before we will overrule the tax court, however, we must conclude that the court’s decision is clearly erroneous-that the evidence as a whole does not reasonably support its decision. Lewis v. County of Hennepin, 623 N.W.2d 258, 261 (Minn.2001). When some evidence supports the tax court’s factual findings, we may nonetheless reverse those findings if, after reviewing the entire evidence, we are left with a “firm conviction that a mistake has been made.” Montgomery Ward & Co., Inc. v. County of Hennepin, 482 N.W.2d 785, 788 (Minn.1992). We review the tax court’s legal determinations de novo. Kmart Corp. v. County of Clay, 711 N.W.2d 485, 488 (Minn.2006).

Under Minnesota’s statutory framework, “agricultural land” is defined as “contiguous acreage of ten acres or more, used during the preceding year for agricultural purposes.” Minn.Stat. § 273.13, subd. 23(c) (2006). Thus, to determine whether the tax court properly classified the subject property, we must look at how the property was used. Whether land is “used” for agricultural purposes is determined by looking at “the specific nature of the property and the use or multiple uses to which that property has been put, together with a subjective balancing of those relative uses.” Barron v. Hennepin County, 488 N.W.2d 290, 293 (Minn.1992). “Agricultural purposes” is in turn defined as “the raising or cultivation of agricultural products.” Minn.Stat. § 273.13, subd. 23(c) (2006). The statutory list of “agricultural products” encompasses the “production for sale” of‘“vegetables, forage, grains, bees, and apiary products,” as well as “trees, grown for sale as a crop, and not sold for timber, lumber, wood, or wood products.” MinmStat. § 273.13, subd. 23(e) (2006). To the extent agricultural land is used commercially, the portion of the land used for commercial purposes is to be classified separately. Minn. Stat. § 273.13, subd. 23(f) (2006).

The tax court based its classification determination on its finding that Schmieg “used approximately half of his 42 acres of land for his bee keeping operation, including maintaining the hives, as well as using the shed and well house for processing the honey.” Schmieg v. County of Chisago, No. 13-CV-06-92, 2007 WL 491610, at *3 (Minn. T.C. Feb. 7, 2007). The record, however, does not reasonably support that finding. Although the record indicates that a number of bees were raised on the property, there is nothing in the record suggesting that the beekeeping operation utilized ten contiguous acres for agricultural purposes. Aside from the beehives and the space occupied by the shed and the well house, which occupied a relatively small portion of the property, there is no evidence as to how much of the remainder of the property was used for the beekeeping operation. Further, it is clear from the record that the vegetables and trees grown by Schmieg only took up a small portion of the property. Moreover, the record indicates that at least half of the subject property was unused. Because the record before us does not support the tax court’s finding that Schmieg used approximately half of the subject property for his beekeeping operation, we conclude that there was insufficient evidence for the tax court to have concluded that ten contiguous acres were used for agricultural purposes. Thus, we hold that the tax court’s classification of the subject property as agricultural was erroneous.

II.

Although we conclude that the record lacks' sufficient evidence to support a non-homestead agricultural classification for Schmieg’s property, we decline, on this record, to simply reinstate the commercial classification set by the county assessor. Under Minnesota law, an assessor’s classification of land for tax purposes is prima facie valid, MinmStat. § 271.06, subd. 6 (2006), and the petitioner carries the burden of showing that the classification is incorrect. In normal circumstances, a taxpayer’s failure to satisfy his burden of proof would result in the assessor’s initial classification being affirmed. On the particular facts before us here, however, deference to the assessor’s classification would serve to undermine the statutory classification scheme as a whole.

In this case, the record suggests that the assessor’s classification of the property as commercial was based upon our decision in Barron v. Hennepin County, which imposed a “primary use” test for determining how property was to be classified. See Barron, 488 N.W.2d at 293. According to the county, Barron’s primary use test mandates a commercial classification of the property because of the income produced by the billboard located on the property, regardless of how the remainder of the property was used. Whether Barron guides the classification of Schmieg’s property is a question of law we address de novo.

In Barron, the classification to be given 20 acres of land — one acre used by a family home, the other 19 planted with crops— was at issue. Id. at 291. At the time, the property tax classification statute defined “agricultural land” as “contiguous acreage of ten acres or more, primarily used during the preceding year for agricultural purposes.” MinmStat. § 273.13, subd. 23(c) (1992) (emphasis added). Based upon the statute s use of the phrase primarily used,” we held that none of the land in question could be classified as agricultural because the crops grown on that land had produced “almost insignificant income when compared with the valuation of the homestead.” Barron, 488 N.W.2d at 293.

While we have never overturned Barron, its applicability today is undermined by the classification statute’s current language. After Barron was decided, the legislature redefined “agricultural land.” Under this new definition, the term “agricultural land” means all land “used during the preceding year for agricultural purposes.” Minn.Stat. § 273.13, subd. 23(c) (emphasis added). As a result, the “primarily used” language relied on in Barron is no longer part of the statutory scheme, and its removal calls into question Barron’s continued viability.

Moreover, the classification statute clearly contemplates that property may be used for more than one purpose and therefore subject to more than one elassifieation-a possibility not addressed in Barron. For example, Minn.Stat. § 273.13, subd. 23(f), provides that, “[i]f a parcel used for agricultural purposes is also used for commercial or industrial purposes, ⅞ ⅜ * the assessor shall classify the part of the parcel used for agricultural purposes [accord-inglyj, and the remainder in the class appropriate to its use.” (Emphasis added.) This language is in direct conflict with our holding in Barron.

Here, it appears that the assessor’s rationale for classifying the entire property as commercial was derived from our holding in Barron. But given the language of section 273.13, subdivision 23(f), and the fact that at least some of the subject property appears to be used for agricultural purposes, some for commercial purposes, and some unused, it would seem that commercial classification of the entire property is inappropriate. Therefore, we remand to the tax court for further proceedings to determine the proper classification for the property.

Reversed and remanded for further proceedings not inconsistent with this opinion.

      . Schmieg did not file a brief in response to the county’s arguments.

      . The record does not indicate the exact location of the crops pollinated, but it appears that they were not located on the subject property.


source: Caselaw Access Project

author: RUSSELL A. ANDERSON, Chief Justice.

license: Public Domain

text:
    Joshua RECHTFERTIG, Relator, v. Michael SPIERING, Uninsured, Respondent, and St. Mary’s Duluth Clinic Health System, and JC Christensen/Radiological Associates, Intervenors, and Special Compensation Fund, Respondent.
    No. A07-1306.
    Supreme Court of Minnesota.
    Nov. 6, 2007.
    Donald C. Erickson, Heather Korpela, Fryberger Buchanan Smith & Frederick P.A., Duluth, MN, for Relator.
    S. Forrest Hutchinson, Forrest Hutchinson & Assoc., Duluth, MN, for Respondent.
    Lori Swanson, Minnesota Attorney General, Rory H. Foley, Assistant Attorney General, St. Paul, MN, for Special Compensation Fund.
   ORDER

RUSSELL A. ANDERSON, Chief Justice.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 19, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that [s]ummary af-firmances have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).


author: STONEBURNER, Judge.

text:
    Gail GOMEZ, et al., Appellants v. DAVID A. WILLIAMS REALTY & CONSTRUCTION, INC., Defendant and Third Party Plaintiff, Respondent, v. David Freund, et al., Third Party Defendants, Scherer Bros. Lumber Co., Third Party Defendant, Respondent.
    No. A06-2155.
    Court of Appeals of Minnesota.
    Nov. 6, 2007.

      Jonathan M. Bye, Mark S. Enslin, Lind-quist & Vennum, P.L.L.P., Minneapolis, MN, for appellants.
    James M. Hamilton, Oskie, Reuter, Hamilton & Sofío, P.A., St. Paul, MN, for respondent Williams Realty.
    James M. Bratulich, Adina R. Berg-strom, Bruce P. Candlin & Associates, St. Paul, MN, and Thomas G. Jovanovich, St. Cloud, MN, for respondent Scherer Bros.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellants challenge the grant of summary judgment to respondents dismissing new-home warranty claims as barred by the statute of repose contained in Minn. Stat. § 541.051, subd. 1(a) (2004). Appellants argue that the district court (1) erred by considering the statute-of-repose defense asserted for the first time in respondent builder’s reply brief; (2) used the wrong event to trigger accrual of their warranty cause of action; and (3) erroneously concluded that their cause of action accrued more than ten years after the warranty date. We affirm the district court’s consideration and application of the ten-year statute of repose, and the use of the date of discovery of the breach as the date on which appellants’ claims accrued. But because the district court erred in stating that appellants stipulated to dismissal of some warranty claims, and because there are genuine issues of material fact concerning when appellants knew or should have known of major construction defects and the builder’s refusal or inability to honor the warranty that the home would be free from major construction defects, we reverse the grant of summary judgment and remand for further proceedings.

FACTS

Appellants Gail and Lupe Gomez (the homeowners) contracted with respondent David A. Williams Realty & Construction Inc., (the builder) for the construction of a home which was substantially completed on October 19, 1994. The contract contained express warranties that (1) during the first ten years of ownership the home “shall be free from major construction defects;” (2) all work would be executed in a workmanlike manner in accordance with the plans and specifications; and (3) the builder would comply with all applicable health and building ordinances. The home was also covered by statutory warranties that “during the one-year period from and after the warranty date the dwelling shall be free from defects caused by faulty workmanship and defective materials due to noncompliance with building standards,” and that “during the ten-year period from and after the warranty date, the dwelling shall be free from major construction defects.” Minn.Stat. § 327A.02, subd. 1(a), (e) (1994).

In June 1995, the homeowners discovered that windows in the home leaked when it rained. They contacted the builder immediately, and the builder made attempts to fix the problem, but it was never fully corrected. According to the homeowners, the extent of the leaking increased, and the builder made subsequent attempts to remedy the leaking in 1996 and 1997. The builder’s last attempt to remedy the problem was made in 1998 or possibly 1999.

The homeowners ‘wrote to the builder’s insurance broker about the leaks on June 18, 2004, and received a June 30, 2004, letter from American Family Insurance Company (the insurer), acknowledging that it insured the builder and had been placed on notice of the homeowners’ moisture/water infiltration claim. The insurer requested additional information, which the homeowners provided by letter dated August 20, 2004.

In August 2004, the homeowners engaged Private Eye, Inc. to perform a moisture analysis. In a report dated October 4, 2004 (PE report), Private Eye noted that probes indicated high moisture readings at numerous locations in the wall cavities, the wall sheathing “felt soft when probed” at more than 30 locations, and that the sheathing could not be detected by probes at some half-dozen locations. The PE report recommended that these areas be opened up for further exploration to determine if there was any structural damage.

The homeowners forwarded the PE report to the insurer by letter dated October 12, 2004. The insurer replied, stating that because the PE report did not explicitly indicate structural damage, the homeowners would need to have a structural engineer substantiate the existence of structural damage to the home. The homeowners then hired Air Tamarack to conduct a structural analysis of the home. In a report dated February 2, 2005 (AT report), Air Tamarack concluded that the house had “serious structural and fungal infestation problems related to the above grade exterior wall construction and rim joist construction.” The report also stated that “visual inspection revealed several state building code violations and poor building practices, which are related to the moisture penetration concerns in this house.”

The homeowners provided the AT report to the insurer. The homeowners sent written notice to the builder of the problems revealed by the AT report by letter dated May 18, 2005, and sued the builder on November 8, 2005, for negligence, breach of express and statutory warranty, breach of contract, and breach of implied warranty. The builder brought a third-party action for contribution and indemnity against respondent Scherer Bros. Lumber Co. (the window manufacturer) and third-party defendants, David Freund Stucco (DFS), Imdieke Builders, and R & R Construction. DFS answered, affirmatively asserting statute-of-limitations and statute-of-repose defenses. The window manufacturer also answered, asserting a statute-of-limitations defense and all other defenses interposed by other third-party defendants.

The builder and the window manufacturer moved for summary judgment on the homeowners’ claims based in part on lack of notice required by Minn.Stat. § 327A.03(a) (2004), and the two-year statute of limitations, contained in Minn.Stat. § 541.051, subd. 1(a) (2004). The window manufacturer also asserted that the builder’s third-party claims against it were barred by the ten-year statute of repose.

In response to the summary-judgment motions, the homeowners conceded that the two-year statute of limitations barred their contract, tort, and implied warranty claims, but argued that their claims for breach of express and statutory warranties were not barred because they did not discover structural damage to the home until receipt of the PE report on October 12, 2004. In its reply brief, the builder argued that the PE report did not state that there was structural damage and that because the AT report, the first confirmation of structural damage, was issued in February 2005, more than ten years after the warranty date of October 19, 1994, the ten-year statute of repose contained in Minn. Stat. § 541.051, subd. 1(a) barred the claim of breach of the “free of major construction defects” warranty.

The homeowners objected to the district court’s consideration of the statute-of-repose defense raised for the first time in the builder’s reply brief and requested additional time to address this defense. The district court denied the request for additional time. The district court concluded that the ten-year statute of repose contained in Minn.Stat. § 541.051, subd. 1(a) applies to the homeowners’ claim; that their cause of action accrued when they knew or should have known of the breach of the “free from major construction defects” warranty; and that, as a matter of law, the homeowners did not learn of the breach of the warranty until the AT report was issued more than ten years after the warranty date. The district court granted summary judgment to the builder based on the statute of repose. The district court also dismissed the homeowners’ warranty claims based on poor workmanship and building code violations, stating that the homeowners had conceded those claims were barred under the two-year statute of limitations. Because none of the homeowners’ claims against the builder survived summary judgment, the builder’s third-party claims against the window manufacturer were also dismissed. This appeal followed.

ISSUES

I. Did the district court abuse its discretion by considering the statute-of-repose defense first argued by the builder in its reply brief?

II. Does the ten-year statute of repose contained in Minn.Stat. § 541.051, subd. 1 (2004), apply to claims for breach of statutory new-home warranties and express written warranties?

III. When did the homeowners’ cause of action for breach of and statutory new-home warranties accrue and express written warranties?

IV. Did the district court err by deter- ■ mining as a matter of law that the homeowners’ cause of action for breach of the “free from major construction defects” warranty accrued more than ten years after the effective date of the warranty and was therefore barred by the statute of repose?

V. Did the district court err by stating that the homeowners had conceded that their claims for breach of the warranties that work would be executed in a workmanlike manner and that the builder would comply with all applicable ordinances were barred by the two-year statute of limitations?

ANALYSIS

I. Standard of review

“On an appeal from summary judgment we ask two questions: (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). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998) (citing Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn.1995)).

II. . Applicable statutes

Minn.Stat. § 541.051 (2004), provides in relevant part:

Subdivision 1. Limitation; service or construction of real property; improvements. (a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property ... arising out of the defective and unsafe condition of any improvement to real property ... shall be brought ... 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....
(b) For purposes of paragraph (a), a cause of action accrues upon discovery of the injury-
Subdivision 2. Action allowed; limitation. Notwithstanding the provisions of subdivision 1, in the case of an action which accrues during the ninth or tenth year after substantial completion of the construction, an action to recover damages may be brought within two years after the date on which the action accrued, but in no event may an action be brought more than 12 years after substantial completion of the construction.
Subdivision. 4. Applicability. For the purposes of actions based on breach of the statutory warranties set forth in section 327A.02, or to actions based on breach of an express written warranty, such actions shall be brought within two years of the discovery of the breach. In the case of an action under section 327A.05, which accrues during the ninth or tenth year after the warranty date, as defined in section 327A.01, subdivision 8, an action may be brought within two years of the discovery of the breach, but in no event may an action under section 327A.05 be brought more than 12 years after the effective warranty date.

Minnesota law further provides that in every contract for the sale of a dwelling to be completed, the vendor shall warrant to the vendee that “during the ten-year period from and after the warranty date, the dwelling shall be free from major construction defects due to noncompliance with building standards.” Minn.Stat. § 327A.02, subd. 1(c) (2004). Liability of the vendor does not extend to loss or damage not reported by the owner to the vendor in writing within six months .after the owner discovers or should have discovered the loss or damage. Minn.Stat. § 327A.03(a) (2004).

“Major construction defect” is defined as “actual damage to the load-bearing portion of the dwelling ... which affects the load-bearing function and which vitally affects or is imminently likely to vitally affect use of the dwelling ... for residential purposes.” Minn.Stat. § 327A.01, subd. 5 (2004). “ “Warranty date’ means the date from and after which the statutory warranties provided in section 327A.02 shall be effective, and is the earliest of (a) the date of the initial vendee’s first occupancy of the dwelling; or (b) [t]he date on which the initial vendee takes legal or equitable title in the dwelling.” Minn.Stat. § 327A.01, subd. 8 (2004).

III. Timeliness of statute-of-repose defense

The homeowners first argue that the statute-of-repose defense should not have been considered by the district court because the builder raised it for the first time in its reply brief, and the district court denied the homeowners’ request for an opportunity to address this new argument. The builder agrees that Minn. R. Gen. Pract. 115.03(c) limits reply memorandums to “new legal or factual matters raised by an opposing party’s response to a motion.” But the builder argues that the statute-of-repose defense was raised in its reply brief to address the argument, first raised in the homeowners’ memorandum opposing summary judgment, that the homeowners did not know, or have reason to know, of structural damage to the home until the PE report. The builder also argues that the homeowners had notice of the statute-of-repose defense because it was specifically asserted in the answers of DFS and the window manufacturer.

In its reply brief, the builder primarily argued that the homeowners, as a matter of law, discovered, or should have discovered, the builder’s breach of the warranty that the home would be free from major construction defects more than two years before they sued the builders and the homeowners’ failure to give notice as required by Minn.Stat. § 327A.03(a) barred the statutory warranty claims. The builder’s reply brief addressed the statute of repose briefly, stating that “if [the homeowners] want to claim that they did not discover structural issues until a professional told them, then they will have to live with the fact ... that this advice came more than 10 years after substantial completion of the home ... and [their] claims, therefore, are barred by the statute of repose.”

Because the homeowners asserted for the first time in their memorandum opposing summary judgment that they neither knew, nor should have known, about structural damage until they received the PE report, we conclude that the builder appropriately raised the statute-of-repose defense in its reply brief. The homeowners had ample opportunity to argue the issue at the summary-judgment hearing. We conclude that the district court did not abuse its discretion in considering the defense or in denying additional time to the homeowners to address the issue. Also, because our review of application of the statute of repose to the facts is de novo, and the homeowners have thoroughly briefed their response to the defense on appeal, the interests of judicial economy would not be' served by remanding this issue to the district court.

IV. The statute of repose contained in Minn.Stat. § 541.051, subd. 1, applies to claims for breach of express and statutory warranty.

In Koes v. Advanced Design, Inc., 636 N.W.2d 352, 360 (Minn.App.2001), review denied (Minn. Feb. 19, 2001), this court concluded that, whether intended or not, Minn.Stat. § 541.051 (2000), did not contain a statute of repose for warranty claims. In response, the legislature amended subdivision 4 of the statute to remove the language exempting actions for statutory and express warranties from the application of Minn.Stat. § 541.051, and added:

In the case of an action under section 327A.05, which accrues during the ninth or tenth year after the warranty date, ... an action maybe brought within two years of the discovery of the breach, but in no event may an action under section 327A.05 be brought more than 12 years after the effective warranty date.

Minn.Stat. § 541.051, subd. 4 (2004). The homeowners argue that because the legislature did not add language to subdivision 4 stating that the statute of repose contained in subdivision 1 applies to warranty claims, subdivision 4 constitutes a 12-year statute of repose for warranty claims, making their claims timely because they were brought within 12 years of the effective warranty date. We find no merit in this argument.

The plain language of subdivision 4 permits an action that has accrued within ten years of the effective warranty date to be brought up to 12 years after the effective warranty daté, but does not provide that a warranty action may accrue more than ten years from the effective warranty date. Because the language exempting warranty claims from the statute was .removed, Minn.Stat. § 541.051, subd. 1(a) now applies to warranty claims. See Sletto v. Wesley Constr., Inc., 733 N.W.2d 838, 843 (Minn.App.2007) (stating that the limitation on accrual in subdivision 1 of section 541.051 now applies to statutory-warranty claims). The district court properly concluded that the ten-year statute of repose applies to claims of breach of statutory new-home warranties and express written warranties. ; -

Y. For purposes of the statute of repose in Minn.Stat. § 541.051, subd. 1(a), a cause of action for breach of statutory new-home warranties or express written warranties accrues on discovery of the breach.

The district court concluded that a cause of action for breach of express or statutory . warranty accrues on discovery of the breach. The homeowners argue that if the statute of repose contained in Minn.Stat. § 541.051, subd. 1(a), applies to breach of warranty claims then the provision in subdivision 1(b), which states that “for purposes of paragraph (a), a cause of action accrues upon discovery of the injury,” (emphasis added) must also apply to breach-of-warranty claims. We disagree.

MinmStat. § 541.051, subd. 4 and applicable case law establish that for purposes of actions based on breach of statutory new-home warranties and' express written warranties, it is discovery of the breach that triggers the running of statutes of limitation. In many cases, a breach of warranty' coincides with discovery of a condition contrary to the warranty (injury), but in the case of warranties that extend to future performance, there is no breach until the person relying on the warranty discovers, or should have discovered, that the warranty will not be honored. See Vlahos v. R & I Constr. of Bloomington, Inc,, 676 N.W.2d 672, 678 (Minn.2004) (holding that the statutory new-home warranty extends to future performance, and that the applicable statute of .limitations, Minn.Stat. § 541.051, subd. 4 (2002), “begins to run when the homeowner discovers, or should have discovered, the builder’s refusal or inability to ensure the home is free from major construction defects.”).

Despite the supreme court’s holding in Vlahos, the homeowners argue that subdivision 4 does not provide a “definition of accrual” for warranty claims because it does not use the word “accrue,” and that even if a cause of action accrues upon discovery of the breach for purposes of the statute of limitations in subdivision 4, there is a different accrual trigger for purposes of the statute of repose. We find no merit in this argument. Based on Vlahos, we hold that for purposes of the statute of repose, a cause of action for breach of statutory new-home warranties and express written warranties covering future performance accrues on discovery of the breach, which occurs when the homeowner discovers, or should have discovered, the builder’s refusal or inability to ensure the home is free from major construction defects known to, or that should have been known to, the homeowner. See id.

VI. The district court erred by holding that, as a matter of law, the homeowners’ cause of action for breach of warranties that their home would be free from major construction defects during the first ten years of occupancy accrued more than ten years from the warranty date.

To survive summary judgment, a party need not show substantial evidence, only sufficient evidence to permit reasonable persons to draw different conclusions. Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn.2006). Determining when the homeowners discovered or should have discovered the breach of warranties is “a factual question, inappropriate for resolution on summary judgment.” Vlahos, 676 N.W.2d at 676-79.

In Vlahos, the supreme court concluded that the legislature intended to define “major construction defect” broadly. Id. In this case, numerous facts in the record support the builder’s claims that the homeowners knew or should have known that their home contained structural defects and that the builder refused or was unable to remedy those defects long before notice was given to the builder or its insurer and long before this action was initiated. The homeowners concede that they should have known of structural defects at least as of the date of the PE report. Nonetheless, the district court made an explicit finding that the PE report did not give the homeowners reason to know of structural damage, and made an implicit finding that nothing prior to the PE report put the homeowners on notice of structural damage that the builder would not cure. Such findings are inappropriate on summary judgment. Although it is not disputed that the AT report was the first confirmation of structural damage to the home, there is a genuine issue of material fact concerning whether the homeowners should have been aware that they had structural damage before or at the time of the PE report, and there appears to be a genuine issue of material fact about when the homeowners knew or should have known that the builder would not or could not honor its warranties.

The district court did not reach the issues of whether notice of breach of statutory warranties was timely or properly given and if not, whether the contract contains express written warranties. Determination of these factual issues is necessary in order to resolve whether the homeowners’ action is viable or is barred by lack of notice, the two-year statute of limitations, or the ten-year statute of repose.

VII. The district court erroneously stated that the homeowners conceded that express and statutory warranties other than the warranty that the home would be free from structural defects were barred by the statute of limitations.

Nothing in the record supports the district court’s statement that the homeowners conceded that the statutory warranty contained in Minn.Stat. § 327A.02, subd. 1(a) (2004), warranting that “during the one-year period from and after the warranty date the dwelling shall be free from defects caused by faulty workmanship and defective materials due to noncompliance with building standards” or the express written warranties of workmanship and compliance with health and building ordinances are barred by the two-year statute of limitations. The homeowners conceded only that their common-law claims are barred by the two-year statute of limitations. On remand, the district court must address whether the accrual date on these claims can be determined as a matter of law or whether there are genuine fact questions that preclude summary judgment on these claims.

DECISION

We affirm the district court’s ruling that statutory new-home warranty and express written warranty claims are subject to the ten-year statute of repose contained in Minn.Stat. § 541.051, subd. 1(a) (2004), and that such claims accrue at the time a homeowner knows, or should have known, of major construction defects which a builder refuses or is unable to correct. Because the district court erred in finding as a matter of law that the homeowners’ cause of action on “free from major construction defects” warranties did not accrue before expiration of the statute of repose, and erroneously stated that the homeowners had abandoned their claims for breach of other statutory and express written warranties, we reverse summary judgment granted to the builder and window manufacturer and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

      . There is a dispute about whether the contract contains express written warranties, but for purposes of summary judgment the district court presumed that it did. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (stating that on summary judgment, the facts are viewed in the light most favorable to the non-moving party).

      . The parties agree that the effective date of the express and statutory warranties is the date of substantial completion of the home, October 19, 1994.

      . At oral argument' before this court,' the builder argued that, as a matter of law, the homeowners had no reason to know of striic- - tural damage before they received the AT report, despite the homeowners' assertion that the PE report put them on notice of such damage. The builder's last minute change of its theory of the case does not change the record which, as die builder amply argued in summary judgment briefing to the district court, contains evidence from which a fact-finder could conclude that the homeowners should have known of structural damage even prior to receipt of the PE report.

      . Homeowners suggest that if, as the builder argues, they knew or should have known of the breach of this warranty prior to August 1, 2004, there would be no statute of repose applicable to their claim, as exemplified by the Koes decision. Because this issue was not argued to the district court, we decline to address it here, except to note that such a finding would have implications for the timeliness of their notice to preserve statutory warranty claims. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating that this court will generally not consider matters not argued and considered in the district court).


author: MARING, Justice.

text:
    2007 ND 169
    Doralee RODENBIKER, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Stage Stop Liquors, Inc., Respondent.
    No. 20070114.
    Supreme Court of North Dakota.
    Oct. 29, 2007.

      Steven L. Latham,- Larson, Latham, and Huettl, LLP, Bismarck, N.D. for claimant and appellant.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, N.D., for appellee.
   MARING, Justice.

[¶ 1] Doralee Rodenbiker appeals from a district court judgment affirming a final order of Workforce Safety and Insurance (“WSI”). The final order reduced Roden-biker’s WSI benefits' from temporary total disability benefits to partial disability benefits. Rodenbiker cannot be returned to substantial gainful employment as defined under N.D.C.C. § 65-05.1-01(3), and she does not have a retained earnings capacity to meet the income test of N.D.C.C. § 65-05.1-01(6)(a)(3). We reverse the district court judgment affirming the order of WSI and remand for reinstatement of Roden-biker’s temporary total disability benefits.

I .

[¶ 2] In March 2000, Doralee Roden-biker injured her lower back when she was moving .tables while employed as a cocktail waitress at Stage Stop Liquors, Inc., in Mandan. Rodenbiker submitted a claim for WSI benefits. WSI accepted her claim and awarded her temporary total disability benefits.

[¶ 3] On April 25, 2005, WSI issued an order, terminating Rodenbiker’s temporary total disability benefits and awarding her partial disability benefits. WSI found Ro-denbiker’s first appropriate rehabilitation option was to return to an occupation in the statewide job pool. The order stated that Rodenbiker’s medical limitations restricted her to sedentary work four hours per day, twenty hours per week, based on 2002 and 2003 functional capacity assessments (“FCA”). The April 25 order said Rodenbiker would be able to pursue employment as a telemarketer, customer service representative, or receptionist.

[¶ 4] A few months later, on August 24, 2005, WSI issued an amended order awarding partial disability benefits. The amended order was different from the original order in one respect. In the amended order, WSI concluded as a matter of law that none of the statutorily listed rehabilitation options would return Rodenbiker to substantial gainful employment. The August amended order was the subject of an administrative hearing conducted on November. 7, 2005. The administrative law judge (“ALJ”) recommended findings of fact, conclusions of law, and an order on May 3, 2006. On May 18, 2006, WSI adopted the ALJ’s recommended decision as its final order. Roden-biker appealed WSI’s final order to the district court.

[¶ 5] On January 25, 2007, the district court affirmed WSI’s May 18, 2006, final order. The district court concluded that the ALJ reasonably determined Rodenbiker was entitled only to partial disability benefits. Rodenbiker appeals.

[¶ 6] The record reveals Rodenbiker initially sought treatment from a chiropractor, who referred her to Dr. Michael Martire. Dr. Martire became her primary treating physician in the years that followed. Rodenbiker was referred to a surgeon after a disk protrusion was detected in May 2000. Rodenbiker underwent back surgery in August 2000.

[¶ 7] WSI initiated vocational rehabilitation services in December 2000. These services were discontinued the following August. Rodenbiker continued to experience significant pain and was referred for further exploration of surgical options. Rodenbiker underwent a second back surgery in February 2002. Following surgery, Dr. Martire prescribed physical therapy. Rodenbiker began an independent exercise program in July 2002. She also began psychotherapy in 2002. The treatment for her work-related injury has involved various pain medications and antidepressants.

[¶ 8] In late August 2002, a FCA found Rodenbiker capable of working at a less-than-sedentary to sedentary job for twenty hours a week, four hours per day. The FCA placed various limitations on Roden-biker. She was to avoid forward-bending and had a low tolerance for sitting and standing. , She could only occasionally lift objects, carry objects, or rotate while sitting.

[¶ 9] In February 2003, a vocational rehabilitation consultant recommended a skills upgrading program for Rodenbiker to enhance her customer service and computer skills. The record shows Rodenbiker, who previously attended a two-year legal secretary/word processing program at Bismarck State College, participated in a skills upgrading program. Dr. Martire approved her participation in the program. Rodenbiker was to attend the program two hours per day, three days per week. The ALJ noted that Rodenbiker missed several sessions for various reasons, but eventually completed the program. The record reveals Rodenbiker underwent a mini-FCA following the skills upgrading program. The assessment recommended Rodenbiker perform volunteer work as a work conditioning tool. Rodenbiker volunteered several times at a senior citizens’ center as a bingo caller and receptionist.

[¶ 10] On January 21, 2004, Dr. Robert Cooper of Medical Evaluations, Inc., evaluated Rodenbiker to address work release issues and whether there was a need for an additional FCA. Dr. Cooper reported that Rodenbiker remained at the level indicated in her August 2002 FCA. He opined' there were no absolute medical contraindications to Rodenbiker’s ability to return to work. However, Dr. Cooper noted that Rodenbiker’s pain medications might need to be altered, and Rodenbiker could struggle with psybho-social interaction required by the work recommended by WSI.

[¶ 11] Following Dr. Cooper’s evaluation of Rodenbiker, Dr. Martire wrote to WSI. Dr. Martire agreed with Dr. Cooper in many respects, but questioned whether Rodenbiker would be capable of fulfilling the identified job goals, because of her low sitting tolerance and emotional frailty. Dr. Martire was unsure whether different medications would help Rodenbiker participate in gainful employment. WSI scheduled a psychological evaluation for Roden-biker with Dr. Harjinder Virdee. In Dr. Virdee’s opinion, Rodenbiker’s psychological condition did not prevent her from following the .2002 FCA recommendations regarding her return to work.

[¶ 12] In June 2004, Rodenbiker moved to Rock Lake to care for her mother, who has Alzheimer’s disease. During the administrative hearing, Rodenbiker testified' that her family paid her $300 per month to perform light housework, ensure her mother took her medications, and watch out for her mother’s physical safety.

[¶ 13] In January 2005, a vocational rehabilitation consultant, Joyce Clock Olson, prepared an earnings capacity report and found Rodenbiker capable of part-time work. The report identified telemarketing, customer service, and receptionist work as jobs that would not be too physically demanding for Rodenbiker. Olson based her opinion regarding the physical demand of the job goals on descriptions in the Dictionary of Occupational Titles and modifications she learned from employer contacts and site visits. Olson reported that employers would be willing to allow employees to alternate between sitting and standing while working and employees could walk within their cubicles and around the office premises during breaks. The report concluded that Rodenbiker had a retained earnings capacity of $163 per week.

II

[¶.14] This Court, reviews an agency order in the same manner as the district court. N.D.C.C. § 28-32-49. When a district court reviews an administrative agency’s order, the district court must affirm the order of the agency unless the district court finds that any of the following are present:

1. The order is not in accordance with .the law.
5. The findings of fact made by the agency áre not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.

N.D.C.C. § 28-32-46. In its' review of an agency order, this Court does not make independent findings of fact or substitute its judgment for that of the administrative agency. Aga v. Workforce Safety & Ins., 2006 ND 254, ¶ 12, 725 N.W.2d 204. This Court determines only “whether a reasoning mind reasonably- could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Id.

[¶ 15] Application and interpretation of a statute is a question of law. Rojas v. Workforce Safety & Ins., 2006 ND 221, ¶ 13, 723 N.W.2d 403. Questions of law are fully reviewable on appeal from an administrative order. Forbes v. Workforce Safety & Ins., 2006 ND 208, ¶ 10, 722 N.W.2d 536.

Ill

[¶ 16] Two statutes are central to this case: N.D.C.C. § 65-05.1-01 and N.D.C.C. § 65-05-10. The parties mistakenly agreed that the 2003 version of the statutes was the appropriate version to apply to Rodenbiker’s claim. However, the applicable statutes are those effective on March 2000, the date Rodenbiker suffered her work-related injury. Unless otherwise provided, statutes in effect on the date of an injury govern WSI benefits. See Robertson v. N.D. Workers Comp. Bureau, 2000 ND 167, ¶ 21, 616 N.W.2d 844; N.D.C.C. § 1-02-10 (stating no part of code is retroactive unless expressly declared). Thus, the 1999 versions of N.D.C.C. § 65-05.1-01 and N.D.C.C. § 65-05-10 apply to this case. Although those statutory provisions were amended between 1999 and 2003, the amendments did not relate to eligibility for partial disability benefits and do not affect the outcome of this case. See 2003 N.D. Sess. Laws ch. 561, § 3 (changing the name of the agency from “workers compensation bureau” to “workforce safety and insurance”); 2003 N.D. Sess. Laws ch. 562, § 6 (amending N.D.C.C. § 65-05-10 regarding the maximum amount of partial disability benefits payable to injured workers receiving partial disability benefits).

[¶ 17] Section 65-05.1-01(3), N.D.C.C. (1999), provides that the goal of vocational rehabilitation is “to return the disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury occurs.” “Substantial gainful employment,” is:

[B]ona fide work, for remuneration, which, is reasonably attainable in light of the individual’s injury, functional capacities, education, previous occupation, experience, and transferable -skills, and which offers an opportunity to restore the employee as soon as practical and as nearly as possible to ninety percent of the employee’s average weekly earnings at the time of injury, or to sixty-six and two-thirds percent of the average weekly wage in this state on the date the rehabilitation consultant’s report is issued under section 65-05.1-02.1, whichever is less.

Id. “The purpose of defining substantial gainful employment in terms of earnings is to determine the first appropriate priority option” in a hierarchy of statutory options that would return the employee to substantial gainful employment. Id. In descending order, the hierarchy of options are:

a. Return to the same position.
b. Return to the same occupation, any employer.
c. Return to a modified position.
d. Return to a modified or alternative occupation, any employer.
e. Return to an occupation within the local Job pool of the locale in which the claimant was living at the date of injury or of the employee’s current address which is suited to the employee’s education, experience, and marketable skills.
f. Return to an occupation in the statewide job pool which is suited to the employee’s education, experience, and marketable skills.
g. On-the-job training.
h. Short-term retraining of fifty-two weeks or less.
i. Long-term retraining of one hundred four weeks or less.
j. Self-employment.

N.D.C.C. § 65-05.1-01(4) (1999). When none of these priority options are “viable, and will not return the employee to the lesser of sixty-six and two-thirds percent of the average .weekly wage, or ninety percent of the employee’s preinjury earnings,” then an employee “shall continue to minimize the loss of earnings capacity,” and to seek and retain employment:

1. That meets the employee’s functional capacities;
2. For which the employee meets the qualifications to compete; and
3. That will reasonably result in retained earnings capacity equivalent to the lesser of ninety percent of the employee’s preinjury earnings or the state’s current hourly minimum wage on the date the rehabilitation consultant’s report is issued.

N.D.C.C. §' 65-05.1-01(6)(a). When an employee is reasonably expected to return to full-time employment, but is initially released to p&rt-time employment, the income test of N.D.C.C. § 65-05.1-01(6)(a)(3) must be waived. Id.

[¶ 18] Total disability exists when a worker is “unable, solely because of his job-related injury, to perform or obtain any substantial amount of labor in his particular line of work, or in any other for which he would be fitted.” Jimison v. N.D. Workmen’s Comp. Bureau, 331 N.W.2d 822, 827 (N.D.1983). This Court has said that partial disability “contemplates at least three factors: First, there should be a physical disability; second, the disability should be partial, or in other words, the employee should be able to work subject to the disability; and third, there should be an actual loss of earning capacity that is causally related to the disability.” Risch v. N.D. Workers Comp. Bureau, 447 N.W.2d 308, 309 (N.D.1989) (citation omitted).

[¶ 19] Partial disability benefits are provided to injured workers whose injuries cause temporary partial disability resulting in decrease of earning capacity. N.D.C.C. § 65-05-10 (1999). WSI is to award partial disability benefits under N.D.C.C. § 65-05-10 based on retained earnings capacity calculated under N.D.C.C. § 65-05.1-01(6). N.D.C.C. § 65-05.1-01 (1999). An “employee’s earnings capacity may be established by expert vocational evidence of a capacity to earn in the statewide job pool where the worker lives.” N.D.C.C. § 65-05-10(3). “Actual postinjury earnings are presumptive evidence of earnings capacity where the job employs the employee to full work capacity in terms of hours worked per week, and where the job is in a field related to the employee’s transferable skills.” Id.

IV

[¶ 20] Rodenbiker argues that because none of the options in the rehabilitation hierarchy under N.D.C.C. § 65-05.1-01 are viable, she, as an injured worker, only has to retain employment if such employment (1) meets her functional capacities, (2) is a job for which she is qualified, and (3) will reasonably result in retained earnings capacity equivalent to the lesser of ninety percent of her preinjury earnings or the state’s current hourly minimum wage on the date the rehabilitation consultant’s report was issued. Rodenbiker does not have a retained earnings capacity to meet the retained earnings goals of the 1999 statute. Thus, she argues that N.D.C.C. § 65-05-10 does not allow WSI to revoke her temporary total disability benefits and award partial disability benefits. Roden-biker argues the 1999 version of N.D.C.C. § 65-05-10 does not provide for an award of partial disability benefits if the retained earnings capacity goals are not met and an injured worker is not able to be returned to substantial gainful employment.

[¶ 21] Rodenbiker asserts that meeting the income test of N.D.C.C. § 65-05.1-01(6)(a)(3) is a prerequisite to applying N.D.C.C. § 65-05-10. The 1999 version of N.D.C.C. § 65-05.1-01(6) provides that the income test of that section is to be applied for the determination of whether partial disability benefits are to be awarded under N.D.C.C. § 65-05-10. Section 65-05.1-01(6)(a)(3) provides that this income test must be waived if there is a reasonable expectation the employee will return to full-time employment. Rodenbiker asserts this income test was not waived because WSI did not find that Rodenbiker is reasonably expected to return to full-time employment.

[¶ 22] WSI asserts Rodenbiker is not entitled to total disability benefits because she is capable of performing some employment-related activities. WSI contends it would be illogical to assume Rodenbiker is to receive total disability benefits when she does not have a complete loss of earning capacity.

[¶ 23] WSI argues the income test of N.D.C.C. § 65-05.1-01(6)(a)(3) does not have to be met before N.D.C.C. § 65-05-10 can be applied to Rodenbiker. WSI asserts that the expert vocational evidence of Rodenbiker’s capacity to earn and Ro-denbiker’s actual earnings related to caring for her mother provide a basis for reducing Rodenbiker’s benefits to an award of partial disability benefits under N.D.C.C. § 65-05-10. WSI further contends that an injured worker is not entitled to total disability under the 1999 statute in every situation in which WSI cannot identify any positions that meet the definition of “substantial gainful employment” under the rehabilitation hierarchy of N.D.C.C. § 65-05.1-01(4) or the income test of N.D.C.C. § 65-05.1-01(6)(a)(3).

V

[¶ 24] We conclude that,- under the 1999 statutory scheme, if an injured worker cannot be returned to substantial gainful employment as defined under N.D.C.C. § 65-05.1-01(3) and does not have a retained earnings capacity to meet N.D.C.C. § 65 — 05.1—01(6)(a)(3), then the injured worker is entitled to temporary total disability benefits or permanent total disability benefits.

[¶ 25] This holding comports with the understood purpose of partial disability benefits and flows from the statute’s plain language. The purpose of partial disability benefits is to assist individuals who can be returned to substantial gainful employment through rehabilitation, but will experience a decrease in earnings capacity upon return to the workforce. See 82 Am.Jur.2d Workers’ Compensation § 380 (2003) (“disability is partial rather than total where the claimant is still capable of gainful employment subject to the disability, even though the disability prevents the claimant from returning to his or her former employment”). Partial disability benefits are for individuals who can return to substantial gainful employment, but at a lesser amount of income; they are not for injured workers who merely have some capacity to work. Cf. Shiek v. N.D. Workers Comp. Bureau, 1998 ND 139, ¶ 21, 582 N.W.2d 639 (“It would be illogical to require a claimant to prove he or she is totally disabled in order to qualify for benefits for temporary total or permanent total disability....”). The benefits received represent the difference between pre- and post-injury earnings capacity.

[¶ 26] Section' 65-05.1-01(6)(b), N.D.C.C., expressly provides that “[u]nder section 65-05-10, [WSI] shall award partial disability based on retained earnings capacity calculated under this section.” If an injured worker cannot find employment meeting the income test under N.D.C.C. § 65-05.1-01(6)(a)(3), then the injured worker is not eligible for a reduction to partial benefits. Under the 1999 statute, an injured worker must meet.the requirements of N.D.C.C. § 65-05.1-01 before an award of partial disability benefits under N.D.C.C. § 65-05-10 can be contemplated. WSI concedes Rodenbiker does not meet the income test under N.D.C.C. § 65-05.1-01(6)(a)(3). Therefore, Rodenbiker does not have a retained earnings capacity sufficient to meet N.D.C.C. § 65 — 05.1—01(6)(b) and she is not eligible for partial disability benefits.

[¶ 27] As WSI notes, N.D.C.C. § 65-05-10 does state that an “employee’s earnings capacity may be established by expert vocational evidence of a capacity to earn in the statewide job pool where the worker lives” and that “[a]ctual postinjury earnings are presumptive evidence of earnings capacity” in- certain situations. These provisions provide means of evidencing earnings capacity, but do not dispense with the requirement of N.D.C.C. § 65-05.1-01 that an injured worker either be capable of a return to substantial gainful employment or have an earnings capacity satisfying the income test provided under N.D.C.C. § 65 — 05.1—01(6)(a)(3) before the injured worker’s total disability benefits are reduced to partial disability benefits.

VI

[¶ 28] Rodenbiker argues that the AL J improperly applied the 2005 version of the WSI statute to Rodenbiker’s case. Roden-biker also argues that WSI’s findings of fact are not supported by a preponderance of the evidence. Because we conclude as a matter of law that Rodenbiker is entitled to reinstatement of her total temporary disability benefits under the 1999 version of the statutes, we do not need to reach these issues.

VII

[¶ 29] We, therefore, conclude that an injured worker’s disability benefits cannot be reduced to partial disability benefits under the 1999 statutes when the injured worker cannot be returned to substantial gainful employment as defined under N.D.C.C. § 65-05.1-01(3) and does not have a retained earnings capacity to meet N.D.C.C. § 65 — 05.1—01(6)(a)(3). We reverse the district court judgment affirming the order of WSI and remand for reinstatement of Rodenbiker’s temporary total disability benefits.

[¶ 30] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, J., WILLIAM F. HODNY, S.J., STEVEN E. McCullough, d.j., concur.

[¶ 31] The Honorable STEVEN E. MCCULLOUGH, D.J., and The Honorable WILLIAM HODNY, S. J., sitting in place of SANDSTROM, J., and CROTHERS, J., disqualified.

      . At the time Rodenbiker applied for benefits, WSI was known as the “North Dakota Workers Compensation Bureau.” The agency's name was changed in 2003. See 2003 N.D. Sess. Laws ch. 561, § 3.