author: ROBERT H. SCHUMACHER, Judge.

text:
    AMERICAN FEDERATION OF STATE, COUNTY MUNICIPAL EMPLOYEES, AFSCME Union Local 3456; et al., Appellants, v. GRAND RAPIDS PUBLIC UTILITIES COMMISSION, Respondent.
    No. C1-01-1852.
    Court of Appeals of Minnesota.
    May 14, 2002.

      Mitchell J. Brunfelt, Colosimo, Patchin, Aronson, Kearney, Lindell & Brunfelt, Ltd., Virginia, MN; and Don L. Bye, Duluth, MN, for appellants.
    Steven C. Fecker, Paul W. Wojciak, Johnson, Killen & Seiler, P.A., Duluth, MN, for respondent.
    Considered and decided by HANSON, Presiding Judge, SCHUMACHER, Judge, and HUSPENI, Judge.

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

   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellants American Federation of State, County & Municipal Employees, AFSCME Union Local 3456 (AFSCME), and several individual members challenge the district court’s summary judgment in favor of respondent Grand Rapids Public Utilities Commission. The district court ruled that respondent had not violated the Data Practices Act by releasing the individuals’ social security numbers in conjunction with a federally-mandated drug and alcohol testing program because the release was specifically authorized by law and thus permitted under the Data Practices Act. We affirm.

FACTS

The Omnibus Transportation Employee Testing Act, 49 U.S.C. § 31306 (1991), required employers to conduct random drug and alcohol testing of employees with commercial driver’s licenses. Employers with fewer than 50 employees were required to begin testing effective January 1996. In June 1995, respondent contracted with the Minnesota Municipal Utilities Association (MMUA) for assistance in implementing the testing. The MMUA developed a drug-testing consortium on behalf of the various utility commissions who were charged a flat fee plus a fee per participating employee. After contracting with MMUA, respondent compiled a list of employees subject to the testing and their social security numbers, which was forwarded to MMUA as early as August 1995. MMUA in turn disclosed the names and numbers to AdMed, Ltd., the testing administrator.

On December 2, 1995, respondent’s general manager Tony Ward sent a memo to the employees about the upcoming drug-testing program. The memo stated, that

the Consortium uses your name and social security number for identification. In the process, your social security number is kept confidential, however, if you would like a different code number assigned to your name, please contact me.

Then, on December 20, 1995, the MMUA held a seminar for the employees involved in the testing. Appellant John Aultman was an employee with union affiliation and asked to attend the meeting even though he did not have a commercial driver’s license and was not subject to the testing. Respondent told Aultman he could attend the meeting if he agreed to participate in the testing. Aultman agreed.

At the seminar, employees were asked to sign a form entitled “Substance Abuse Policy — Employee Acknowledgment of Notification.” The form included an acknowl-edgement that the employee’s social security number would be used in the testing process. At this point in time, the social security numbers had already been released to the MMUA. Some employees did not want to sign the form, but they were told that the social security numbers had already been released to the MMUA.

Soon after the seminar, appellants Robert C. Larson and Robert A. Stein asked that they be given alternative identification numbers. Respondent did so on December 26, 1995. Despite other employees’ objections and without signed consent forms from some employees, respondent continued to use the social security numbers. The employees contacted AFSCME for assistance with the issue. Throughout 1996, 1997, and 1998, AFSCME objected to the use of the social security numbers and respondent continued to use them. Appellants allege that some employees requested alternative identification numbers, and respondent refused to honor these requests. Appellants claim further that Aultman requested an alternative number repeatedly but was not granted one until July of 1997.

Eventually, AFSCME requested an advisory opinion from the Commissioner of the Minnesota Department of Administration, as set forth in the Data Practices Act. AFSCME and respondent made written submissions to the commissioner. As the district court later noted, the commissioner was not provided with any information, by either party, regarding federal law and regulations governing mandated federal drug and alcohol testing. As such, the commissioner issued Advisory Opinion 98-007, stating that respondent had violated the Data Practices Act in releasing the social security numbers.

Despite the advisory opinion, respondent continued to use the social security numbers until September 1999. Ward had transferred responsibility for overseeing the testing to respondent’s safety coordinator Dennis Doyle in late 1997. Doyle asked Ward about using alternative numbers, but Ward told him not to change the process. Eventually, in late 1999, Doyle decided to change the system and issued each employee an alternative number. The social security numbers no longer are used.

Despite the change, appellants initiated this lawsuit in April of 2000, requesting declaratory and injunctive relief, exemplary damages, and attorney fees. The district court granted summary judgment for respondent, concluding that the advisory opinion was not owed significant deference because the commissioner was not made aware of the federal law discussing the use of social security numbers in conjunction with the testing. The advisory opinion specifically stated that the commissioner was unaware of any statute that authorizes the release of social security numbers to testing companies. The district court concluded that no violation of the Data Practices Act had occurred because the federal law specifically authorized respondent’s release of the information. This appeal followed.

ISSUE

Is it a violation of the Data Practices Act for an employer to release an individual’s social security number to a third party if such release is permitted by federal law?

ANALYSIS

Summary judgment is appropriate when the pleadings, discovery, and affidavits in the record indicate that there is no genuine issue of material fact and that either party is entitled to summary judgment as a matter of law. Minn. R. Civ. P. 56.03. The reviewing court views the evidence “in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). Construction of the' Data Practices Act is a legal issue that this court reviews de novo. Deli v. Hasselmo, 542 N.W.2d 649, 655 (Minn.App.1996), review denied (Minn. April 16, 1996).

Under Minn.Stat. § 13.08 subd. 2 (2000), the district court may enjoin a political subdivision that violates or proposes to violate the Data Practices Act, and the court may make any order “necessary to prevent the use or employment * * * of any practices which violate this chapter.” Accordingly, this court may address the legality of respondent’s releasing appellants’ social security numbers in conjunction with the drug testing policy even though that practice is not presently occurring.

The district court ruled that the federal law specifically authorized the use of employee social security numbers for the purpose of drug and alcohol testing. The Data Practices Act permits otherwise prohibited conduct when such conduct is specifically authorized by law. See Minn.Stat. § 13.49, subd. 1 (2000) (“social security numbers * * * are private data on individuals, except to the extent that access to the social security number is specifically authorized by law”).

Appellants contend that the district court erred in interpreting the following provision in the federal law as “specifically authorizing” the release of the social security numbers:

The selection of drivers for random alcohol and controlled substances testing shall be made by a scientifically valid method, such as a random number table or a computer based random number generator that is matched with drivers’ Social Security numbers, payroll identification numbers, or other comparable identifying numbers.

49 CFR § 382.305(f)(1) (1991). Appellants maintain that this provision permits the use of social security numbers, but does not specifically authorize the use, given that alternative identification methods are also Usted. Appellants also maintain that this provision does not indicate that the social security numbers can be used without the employees’ consent.

The issue thus turns upon the proper interpretation of the term “specifically authorized.” The Minnesota courts have addressed the issue of releasing private data when specifically authorized by statute in the context of commitment hearings. See, e.g., In re Chapman, 386 N.W.2d 836, 837 (Minn.App.1986); In re Morton, 386 N.W.2d 832, 834 (Minn.App.1986). In Chapman and Morton, however, the release of the private data was required under the statute at issue. See Minn.Stat. § 253B.07 subd. 1(c) (“when the prepetition screening team recommends commitment, a written report shaU be sent to the county attorney * * *.”). In those cases, this court determined that when a particular statute specifically directs the release of certain data, that statute specifically authorizes the release of the data and no violation occurs under the Data Practices Act.

The issue presently before the court— whether a law that grants permission to disclose the data, as one of the methods of compliance — has not been addressed previously. Minn.Stat. § 13.49, subd. 1, however, does not use the word “mandates” or “requires.” Instead, the legislature chose the term “authorizes.” Appellants nonetheless argue that the Data Practices Act’s use of the phrase “specifically authorized” means “requires” or “necessary.”

We do not agree. We hold that the term “specifically authorizes” equates with “specifically permits” or “specifically allows.” Accordingly, a law that specifically references the disclosure of social security numbers as one method of complying with a mandated drug and alcohol testing program specifically authorizes the release of those social security numbers for purposes of the Data Practices Act.

Appellants argue that Minn.Stat. § 13.05, subd. 3 (2000) is applicable to the case at bar. This section prohibits dissemination of “private and confidential data on individuals” unless “necessary” for administering the testing program. Id. Under Minn.Stat. § 13.49, subd. 1, however, the social security numbers are no longer considered private data under the Data Practices Act because the dissemination of the numbers is specifically authorized by law. Accordingly, Minn.Stat. § 13.05, subd. 3 does not apply, and appellants cannot rely on this section in the face of the more specific statutory section on point.

Neither are we persuaded by appellants’ argument that respondent was required to obtain the employees’ consent before releasing the social security numbers. If the federal law intended for consent to be a condition precedent, the federal law would so provide. Without any such condition, we conclude that the law specifically authorizes respondent’s release of the employees’ social security numbers for purposes of the drug and alcohol testing program.

Appellants also have attempted to create a sub-class of claimants for Ault-man, who does not possess a commercial drivers’ license. Appellants argue that Aultman’s social security number should not have been released, even if respondent was allowed to release the numbers of other employees, because Aultman was not required to participate in that testing. Aultman agreed to participate in the drug and alcohol program. Upon submitting to the program, Aultman was subject to the same procedure as the other employees involved in the testing. Because we have concluded that respondent was specifically authorized to release the social security numbers in conjunction with the testing program and Aultman agreed to participate in this program, respondent did not violate the Data Practices Act by releasing Aultman’s social security number.

DECISION

The district court correctly ruled that the federal law specifically authorized respondent’s release of the employees’ social security numbers in conjunction with the drug and alcohol testing program. As such, the disclosure did not violate the Data Practices Act.

Affirmed.

      . Appellants' counsel referenced “others similarly situated,” i.e., claimants not possessing a commercial driver's license, in addition to Aultman for the first time at oral argument in this court. Issues not briefed are waived. State, Dep’t of Labor and Industry v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997). Also, appellants did not raise this allegation in the district court, and we do not generally address such matters. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988).


source: Caselaw Access Project

author: R.A. RANDALL, Judge.

license: Public Domain

text:
    STATE AUTO INSURANCE COMPANY, Appellant, v. Jeron KNUTTILA, Respondents, and Brian Knuttila, Respondent.
    No. C4-01-2087.
    Court of Appeals of Minnesota.
    May 28, 2002.
    Steven L. Theesfeld, Yost & Baill, LLP, Minneapolis, for appellant.

      Brian R. McCarthy, McCarthy Law Firm, Duluth, for respondent Brian Knut-tila.
    Robert D. Tiffany, Wallace & Tiffany, Park Rapids, for respondent Jeron Knutti-la.
    Considered and decided by LANSING, Presiding Judge, RANDALL, 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

R.A. RANDALL, Judge.

Appellant State Auto Insurance Company sought to recover damages from respondents Jeron Knuttila and Brian Knut-tila in a subrogation action for a fire that damaged the insured landlord’s house. The district court granted summary judgment to respondents, concluding that the subrogation action was barred under the Bruggeman doctrine. State Auto contends that Bruggeman does not apply because the Knuttilas never achieved co-insured status. We affirm.

FACTS

Jeron Knuttila served as a live-in caretaker for property owned by appellant’s insured. Knuttila’s duties included performing normal maintenance on the property and forwarding mail to the insured’s overseas residence. In a deposition, Knut-tila testified that he did not pay cash for rent and did not have a written lease with the insured. But when Knuttila moved onto the property in August 1997, he understood that he would live on the property for two years in exchange for his services while the insured was overseas. When the insured returned in June of 1999, he resided in an apartment, and Knuttila and the insured discussed continuing the arrangement. As of March 2001, Knuttila continued to live on the property in exchange for his services.

On July 1, 1999, a fire occurred on the property, causing significant damage. At that time, Knuttila’s son, Brian Knuttila, was visiting and staying on the property. Knuttila was separated from his wife but had frequent visitation with his three children. At the time Knuttila entered the arrangement with the insured, the insured knew Knuttila’s children would visit and stay with him at the property.

Appellant initiated a subrogation action against the Knuttilas, alleging that the Knuttilas left a citronella candle burning near combustibles when they slept. The district court granted summary judgment for the Knuttilas, concluding that the action was barred by the Bruggeman doctrine. This appeal follows.

ISSUE

Did the district court err in ruling the landlord’s insurer may not subrogate against respondents?

ANALYSIS

On an appeal from summary judgment, an appellate court asks two questions: “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). An appellate court need not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). Because the parties do not dispute the facts, we must determine whether, as a matter of law, the district court erred in awarding summary-judgment for the Knuttilas.

Appellant argues that Bruggeman does not apply in this case because (1) the Knuttilas were not tenants because they did not pay money for rent and (2) subsequent caselaw limited Bruggeman. United Fire & Cas. Co. v. Bruggeman, 505 N.W.2d 87 (Minn.App.1993), review denied (Minn. Oct. 19,1993). We disagree.

In Bruggeman, after a fire damaged a building leased to the tenants, the insurer paid the insured landlords for the building damage and the fire insurer brought an action against the tenants for negligence. Id. at 88. This court determined that because both the tenant and the landlord had an insurable interest in the building structure (i.e., the possessory interest of the tenant and the ownership interest of the landlord), the tenant was essentially a co-insured on the landlord’s fire insurance policy with respect to the building structure. Id. at 89-90. Because the tenants were effectively co-insureds under the landlord’s policy, and because an insurer cannot subrogate against its own insured, we concluded that the insurer could not recover amounts paid to the landlord under its policy against the co-insured tenants. Id. In so concluding, this court discussed the policy behind the decision:

If * * * each tenant is responsible for all damages arising from its negligence in causing a fire and if each tenant was therefore responsible for its own fire insurance, the same property would be insured many times over. While this may provide insurance companies a welcome windfall, it would be contrary to economic logic and common sense.

Id. at 89. We also noted that “the landlord is the party in the best position” to assume responsibility for any safety and structural precautions imposed by the insurer in efforts to minimize risks. Id.

First, appellant asserts that the Knuttilas were not tenants because they did not pay “cash” for rent. A residential tenant is a “person who is occupying a dwelling * * * under a lease or contract, whether oral or written, that requires the payment of money or exchange of services.” Minn.Stat. § 504B.001, subd. 12 (2000) (emphasis added). A tenancy at-will is created when a “tenant holds possession by permission of the landlord but without a fixed ending date.” Minn.Stat. § 504B.001, subd. 13 (2000). A tenancy at-will “may be terminated by either party by giving notice in writing,” but the “time of the notice must be at least as long as the interval between the time rent is due or three months, whichever is less.” Minn. Stat. § 504B.135 (2000).

The insured permitted Knuttila to live on his property in exchange for Knut-tila performing maintenance. Both expected the arrangement to last for two years, until the insured returned from overseas. Upon returning, the insured and Knuttila continued the arrangement. The undisputed facts show that Knuttila exchanged services for a possessory interest in the property without a fixed ending date. Accordingly, Knuttila was a tenant-at-will, and as such, he had a possessory interest in the property that could not be terminated without notice. Because Knuttila had a tenant’s possessory interest in the building structure, he was essentially a co-insured on the insured’s policy with respect to the budding structure, and appellant’s subrogation action against Knutti-la fails.

Appellant argues that because the Knut-tilas did not pay cash for rent, they cannot show that the rent payments indirectly paid the insurance premiums as required by Bruggeman. But Bruggeman does not require the tenant to establish that the landlord mailed part of the rent to the insurance company as a premium. Bruggeman simply talks about “paying rent.” See Bruggeman, 505 N.W.2d at 89 (recognizing “tenant indirectly pays the insurance premiums” (emphasis added)). Rent may be money or exchange of services. Minn.Stat. § 504B.001, subd. 12. Here, Knuttila paid rent by performing services, thus freeing up his landlord’s cash for insurance premiums or any other expense. Accordingly, the policies recognized in Bruggeman apply here. Appellant fails to cite any case that supports its position that rent must be in currency and cannot be compensation in the form of valued goods or services.

Appellant’s claim against Knutti-la’s son also fails. Respondent’s son is in the same category as a minor or adult child living in his parent’s apartment. If the landlord’s insurer cannot subrogate against the parent named on the lease, it makes no sense for the insurer to circumvent the rule by suggesting a bona fide member of the household is not on the lease. Any insurance policy the tenant might happen to carry for himself or herself would cover bona fide family members residing in the property.

Second, appellant asserts that subsequent caselaw has limited Bruggeman and thus it is not applicable in this case. Appellant relies on Osborne v. Chapman, 574 N.W.2d 64 (Minn.1998), to support its assertion. In Osborne, the tenant negligently caused a fire in the leased premises, and the district court found the tenant was liable in negligence to the landlords for loss of use (i.e., lost rents) while the structure was repaired. Id. at 66. The court concluded that Bruggeman did not apply to the landlord’s claim for lost rent because the tenant had no insurable interest in the lost-rent claim and would not be a co-insured under such coverage. Id. The court determined that the co-insured relationship between landlord and tenant as described in Bruggeman was limited to damage to the building structure. Id; see also Nuessmeier Elec., Inc. v. Weiss Mfg. Co., 632 N.W.2d 248, 252 (Minn.App.2001) .(recognizing Osborne “confirmed Brugge-mans narrow application to the co-insured’s interest in the building structure”), review denied (Minn. Oct. 16, 2001); see also Bigos v. Kluender, 611 N.W.2d 816, 828 (Minn.App.2000) (recognizing Osborne did not limit or implicitly overrule Brugge-man because Osborne did not involve sub-rogation action brought by insurer but rather direct action by landlord against tenant), review denied (Jul. 25, 2000); Bruggeman, 505 N.W.2d at 89 (noting insurable interests between landlord and tenant are limited to structure that is subject of fire policy).

This is not a case where the landlord alleged loss of use. Appellant is seeking to recoup insurance proceeds paid out for damage to the building structure. This is precisely the situation Bruggeman addressed. We conclude the district court did not err in granting summary judgment for the Knuttilas.

Finally, appellant argues that this case extends Bruggeman. Appellant asserts that if Bruggeman applies here, Brugge-man would prevent an insurer from subro-gating against an appliance repairman or babysitter whose negligence damaged the property because mere presence would qualify under the doctrine. We disagree. A repairman is a business invitee and has the right to be in the residence for only that period of time needed to perform their duties. See, e.g., Meyer v. Mitchell, 248 Minn. 897, 400, 80 N.W.2d 450, 453 (1957) (recognizing business invitee must be on occupier’s premises for some purpose of the invitor). The right of a business invitee to enter and remain on the premises is not the same as the possessory interest of a tenant-at-will, a month-to-month tenant, or a tenant with a defined lease. The possessory interest of a tenant is conditioned on the payment of rent, and the law sets forth strict procedures requiring that tenants receive fair notice that they have to leave the premises. See, e.g., Minn.Stat. § 504B.135 (stating tenancy at-will may be terminated by giving notice in writing that is “at least as long as the interval between the time rent is due or three months, whichever is less”). On the other hand, with appliance repairmen and babysitters, the resident can change their mind and ask them to leave for no reason, and the repairman has no vested interest in the right to remain on the premises other than the quantum meruit value of the services performed before being told to leave. That quantum meruit right to the value of services performed has nothing to do with a possessory interest in the premise.

Our decision does not extend Brugge-man. The insured needed someone to oversee the property and perform maintenance because he expected he would be out of the country for two years. Knuttila was a tenant-at-will in exchange for services and had a possessory interest in the property; he was not merely present on the property.

DECISION

Because the Knuttilas were co-insureds under the landlord’s fire insurance policy, State Auto may not maintain a subrogation action against them. The district court’s grant of summary judgment in favor of respondents is affirmed.

Affirmed.

      . We need not decide what notice Knuttila was entitled to, but it is clear he would have been entitled to notice. See Sanford v. Johnson, 24 Minn. 172 (1877) (applying predecessor statute and recognizing where lease fixes no term for tenancy, tenant is tenant at will and may terminate tenancy by giving statutory notice).


author: FOLEY, Judge.

text:
    Manoucher ROSTAMKHANI, Relator, v. CITY of ST. PAUL, et al., Respondents.
    No. C7-01-1757.
    Court of Appeals of Minnesota.
    June 4, 2002.

      Timothy C. Cook, Moore, Costello & Hart, P.L.L.P, Minneapolis, for relator.
    Manuel J. Cervantes, St. Paul City Attorney, Meghan Riley, Assistant City Attorney, St. Paul, for respondents.
    Considered and decided by KLAPHAKE, Presiding Judge, RANDALL, Judge, and FOLEY, Judge.
   OPINION

FOLEY, Judge.

Relator seeks certiorari review of a decision by the city to demolish his property, contending that the decision was arbitrary and capricious because (1) the city previously indicated the property could be developed; (2) the record of the city’s proceeding is incomplete; and (3) the demolition order was based on a procedure that is inconsistent with the relevant ordinances. Because the city failed to take into account evidence that established relator’s intent to rehabilitate the property, we find its decision to be arbitrary and capricious. We therefore reverse and remand for further findings, instructing the city to take into consideration all relevant evidence that was made available to it before rendering its decision.

FACTS

On October 26, 2000, relator Manoucher Rostamkhani purchased residential property in St. Paul at a tax-forfeited land auction. The property contained a vacant, dilapidated building, which relator intended to develop into a four-unit rental dwelling. At the auction, the property was described as suitable for a four-unit dwelling. Shortly after relator began preparations to rebuild the dwelling, he learned that the boundary lines of the property had been miscalculated. As a result, the corrected plot was smaller and not zoned to allow for the construction of a four-unit dwelling. Respondent City of St. Paul insisted that the property could only be developed as a single-unit or duplex dwelling. After learning this, relator delayed any further work on or investment in the land and instead sought a zoning variance from the city to allow for a four-unit dwelling to be built on the property.

In April 2001, the city inspected relator’s property to prepare a building deficiency inspection report and notified him that he had until June 8, 2001, to remedy all of the deficiencies that constituted nuisance conditions. Because the city had not yet acted on his variance request, relator took no remedial action on the property.

On June 15, 2001, the city notified relator of a July 17 meeting with a legislative hearing officer to address the nuisance problems on his property. At this meeting, the legislative hearing officer acknowledged that the only question concerning relator’s intention to rehabilitate the property was how he would respond if prevented from building a four-unit dwelling on the property. Otherwise, the legislative hearing officer believed that relator intended to renovate the building on the property and gave him a week to apply for a code compliance inspection for that building. The legislative hearing officer indicated that if relator followed these instructions, he would recommend to the council at their next meeting that relator be given six additional months to renovate the property.

The city council met on July 22, 2001. No application for a code compliance inspection had been made. Relator was granted additional time to apply for the inspection. The city council next met on August 15, 2001. Again, no application for a code compliance inspection had been made. While relator admits that he never applied for the code compliance inspection, he argues that he sent a letter to his city council member on August 9, summarizing the matter and stating that he was prepared to take immediate remedial action. In that letter, relator went into great detail in describing his plans and renewed his request for the opportunity to rehabilitate the property as a four-unit dwelling. More importantly, relator’s letter stated that he was willing to apply for the code compliance inspection immediately “so as to avoid any alleged defaults in his obligations on the property.” On appeal, the city admits that the city council member received the letter before the next city council meeting. But at the August 15, 2001, meeting, that same city council member stated that he knew of no evidence that indicated relator was willing to rehabilitate the property. Relying on the city council member’s statement, the city voted unanimously to have the nuisance on the property abated within 15 days after the meeting.

On certiorari review, relator argues that in light of the history of the property and representations that it could be developed as a four-unit dwelling, it was arbitrary, oppressive, and unreasonable for the city to order demolition of the property. Relator also argues that the record was incomplete because the city council refused to consider certain facts in their possession before it reached its decision to demolish the property. Finally, relator argues that the city’s order must be set aside because it was based on proceedings that were unfair and irregular.

As part of a separate motion, the city moves this court to strike certain portions of relator’s supplemental record, claiming that they were never presented to the city council and, thus, cannot be considered as part of the record on appeal. Relator opposes this motion stating that each piece of information he provided in his supplement was submitted to members of the city council before the August 15, 2001 meeting. Therefore, he contends that the only reason this information was not mentioned at the city council meeting was that the council failed to acknowledge its existence.

ISSUES

1. Is the information provided by relator in his supplemental record admissible as part of the record on appeal?

2. Was the city’s determination arbitrary, oppressive, or unreasonable?

3. Was the record adequate for the city to make a proper determination?

4. Does the St. Paul City Code provide that a party in a nuisance-abatement proceeding is entitled to a separate, informal meeting with a legislative hearing officer before the official meeting?

ANALYSIS

Decisions of administrative agencies, including cities, are presumed to be correct, and this court will reverse or modify an agency decision only if a party’s substantial rights have been prejudiced because the decision exceeded the agency’s statutory authority, was made upon unlawful procedure, was affected by other error of law, or was arbitrary or capricious. See Minn.Stat. § 14.69 (2000) (enumerating criteria for judicial review of agency decisions); In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn.2001); Hard Times Cafe, Inc. v. City of Minneapolis 625 N.W.2d 165, 173 (Minn.App.2001) (applying principles of Minnesota Administrative Procedure Act to city councils). Review is limited to the evidence in the record, and the decision is upheld if the administrative action has a legal basis demonstrated by substantial evidence. Cable Communications Bd. v. Nor-West Cable Communications P’shp, 356 N.W.2d 658, 668 (Minn.1984).

I.

The city asks this court to strike several items in relator’s supplemental record. The record in a certiorari appeal is composed of the papers, exhibits, and transcripts of any testimony considered by the decision-making body being reviewed. See Minn. R. Civ.App. P. 110.01; 115.04, subd. 1 (providing that rule 110 should apply to certiorari proceedings as far as is possible); Stephens v. Bd. of Regents of the Univ. of Minn., 614 N.W.2d 764, 769 (Minn.App.2000), review denied (Minn. Sept. 26, 2000). On appeal, this court cannot base its decision on matters outside the record. Stephens, 614 N.W.2d at 769. As a result, a motion to strike materials that were not part of the appellate record will be granted. Id.

The city objects to the admission of the following: (1) a 1986 city zoning decision involving the subject property, which granted a zoning variance that allowed the property owner to build a four-unit dwelling on the subject property; (2) a 1999 city council resolution calling for rehabilitation or demolition of the property within six months; (3) a 2000 notice of sale and sale data form for tax-forfeited lands in Ramsey County listing the subject property as a “vacant 4 unit apartment building”; (4) a letter from the city to relator alerting him that an inspection of his property would occur on April 26, 2001; (5) a letter from relator to the city inspector acknowledging the receipt of the inspection notice; (6) a letter to the city explaining that even if relator files for a code compliance inspection, he does not want to waive any rights to build a four-unit dwelling on the property; and (7) the August 9, 2001, letter sent to the city’s vacant buildings supervisor, a Ramsey County attorney, and a St. Paul city councilman shortly before the city council hearing.

Relator argues in his response to the city’s motion to strike that all of this information was before the city council when it rendered its decision and the motion should be denied.

If anything material to either party is omitted from the record by error or accident or is misstated in it, * * * the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be approved and transmitted.

Minn. R. Civ.App. P. 110.05 (emphasis added); Stanek v. A.P.I., Inc., 474 N.W.2d 829, 832 (Minn.App.1991), review denied (Minn. Oct. 31, 1991).

Here, relator did not file a separate motion to supplement the record as required by Minn. R. Civ.App. 127, but instead asks this court in his response to the city’s motion to strike to allow his supplemental record in on the court’s own initiative. There is no evidence in the record that the previous zoning resolution, nuisance resolution, or any information pertaining to the sale of the property at the auction was before the city council when it made its decision. Furthermore, there is no evidence in the record that this information had been provided to the council and was simply omitted or misstated. Also, the letters pertaining to the April 26, 2001, inspection of the property are not material to relator’s appeal because neither side disputes that this inspection occurred. Therefore, the city’s motion to strike is granted as to these items.

At oral argument, counsel for the city conceded that the city council member received the August 9 letter prior to the meeting on August 15. Counsel further admitted that city council members who receive such letters usually distribute copies to other members for consideration at their meeting; no copies of relator’s letter were made or distributed. In fact, at the August 15 meeting, the city council member specifically denied the existence of the letter. Therefore, pursuant to this court’s authority under Minn. R. Civ.App. P. 110.05, to the extent that it is material to relator’s case, we deny the city’s motion to strike relator’s August 9, 2001, letter.

II.

On certiorari review, this court will inspect the record and determine questions of jurisdiction of the tribunal, the regularity of the proceedings, and whether an order in a particular case is arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without evidentiary support. Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn.App.1996). A decision may be deemed arbitrary and capricious only if: (1) it relied on factors not intended by the ordinance; (2) entirely failed to consider an important aspect of the issue; (3) offered an explanation that conflicts with the evidence; or (4) it is so implausible that it could not be explained as a difference in view or the result of the city’s expertise. Minnegasco v. Minn. Pub. Utils. Comm’n, 529 N.W.2d 413, 418 (Minn.App.1995), rev’d on other grounds, 549 N.W.2d 904 (1996).

Relator first alleges that the city council’s decision was arbitrary and capricious because of its timing and their refusal to assure him that if he were to begin renovations on the property, he would receive a zoning variance for the property. To support his assertions, relator claims the city refused to cooperate with him toward achieving a resolution of the zoning misunderstanding, namely, the city did not indicate Whether it would allow him to submit his code compliance inspection fee while reserving his rights concerning his ability to develop a four-unit dwelling. Relator contends that he has done everything short of paying the inspection fee to demonstrate his sincerity in renovating the property (i.e., paid property taxes, vacant building fees, etc.), and, instead of receiving assistance from the city, he accuses the city of engaging in strong-arm tactics forcing the demolition of his property. Relator believes that this demonstrates an arbitrary and capricious judgment on the part of the city, especially in light of the fact that the city had ample opportunity to demolish the property before his ownership and did not.

There is, however, no evidence that the city acted in an arbitrary and capricious manner by simply making the decision to demolish the property when it did. There is no legal support for the argument that, after giving a landowner the hearings guaranteed to him under the city code, a city must proactively cooperate with a landowner before it ultimately decides to remedy a nuisance property. Under Minn. Stat. § 463.251 (2000), a city has the power to enact and enforce ordinances that address the problem of hazardous buildings. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn.App.2000). Under the St. Paul City Code, the city council, after it determines that a property is a nuisance property, may take steps to abate the nuisance on its own if remedial action is not taken before any abatement deadline it sets. St. Paul, Minn., Legislative Code § 45.11(l)(f) (2000). There is no section in the substantial abatement procedure section of the code requiring the city to consult further with the landowner about problems with the property before it decides to abate. When it resolved to abate the nuisance at the subject property on August 15, the city had already provided relator with a hearing with a legislative hearing officer and more than one opportunity to voice his concerns at a city council meeting. See St. Paul, Minn. Legislative Code § 45.11(3)-(4a) (stating that property owner is entitled to abatement hearing in front of city council and hearing with legislative hearing officer before city council hearing). Except with respect to the August 9 letter, relator’s complaints, insofar as they demanded more cooperation from the city before it acted, are unpersuasive.

III.

Relator next alleges that the city’s decision was based on insufficient evidence. “If the record is incomplete, the court may either determine that the agency failed to prove substantial evidence supporting its decision or remand for further findings.” Meldahl, 607 N.W.2d at 173. Relator contends that the city faded to consider the letter he sent on August 9, 2001, to his city council representative in which he expressly stated that he was prepared to submit payment for a code compliance inspection “so as to avoid any alleged defaults in his obligations on the property.” He further posits that such a submission, had it been mentioned at the city council hearing by the council mem-ber, would have demonstrated that he was ready to take remedial action on the property and likely would have done so before the 15-day deadline. Thus, relator concludes that the city council would have been required to suspend any order to demolish the property. See St. Paul, Minn., Legislative Code § 45.11(l)(f) (stating that city can abate nuisance if remedial action is not taken by property owner before abatement deadline). We agree. Because we believe that the letter should have been part of the record, and because the city council member failed to acknowledge the content of the letter, the council's decision failed to consider an important aspect of the problem and was, therefore, arbitrary and capricious. See Minnegas-co, 529 N.W.2d at 418 (stating that council acts in arbitrary and capricious manner when failing to consider an important aspect of the problem).

IY.

Relator’s final argument on appeal is that he was denied due process because he was not provided an opportunity to meet privately with the legislative hearing officer before the first public hearing concerning the status of his property. Relator asserts that under the code’s substantial abatement procedures, he should have been provided with an informal meeting with the legislative hearing officer before their formal meeting on July 17, 2001. For abatement proceedings, the code provides that

[i]f the remedial action is not taken within the time specified in the written order, the enforcement officer will notify the city council * * * [and] fix a date for an abatement hearing for the city council.

St. Paul, Minn., Legislative Code § 45.11(3). The code states further:

Prior to the hearing, the legislative hearing officer * * * shall provide the appellant with an opportunity to meet and informally discuss the matter. The legislative hearing officer may submit to the council a recommendation based on the information obtained at such a meeting.

St. Paul, Minn., Legislative Code § 45.11(4a). Relator appears to have mistakenly assumed that the “hearing” referred to in section 45.11(4a) is the hearing with the legislative officer.

In every other instance in section 45.11 when a hearing is mentioned, it is in reference to the city council hearing. In section 45.11(3), entitled “Setting the Hearing Date,” the hearing to which the code refers is the city council hearing. St. Paul, Minn., Legislative Code § 45.11(3) (“enforcement officer * * * shall fix a date for an abatement- hearing for the city council”). In section 45.11(5), entitled “Hearing,” the code mentions only the city council hearing on abatement. When interpreting statutes, courts should not define each word in isolation, but rather in the context of other provisions in the statute. State v. Taylor, 594 N.W.2d 533, 535 (Minn.App.1999). A more complete reading of this part of the code indicates that relator’s argument is based on a misinterpretation of the language in the St. Paul City Code. The “hearing” referred to in section 45.11(4a) is the city council hearing and the informal meeting with the legislative hearing officer is the meeting that took place on July 17, 2001. Because this part of the code is clearly referring to city council hearings when it uses the word “hearing,” section 45.11(4a) does not confer on relator the opportunity to a private meeting with the legislative hearing officer before he met with the officer on July 17, 2001. Therefore, the city acted in compliance with the code when it provided relator with only an informal meeting with the legislative hearing officer on July 17, 2001, and a hearing before the city council on August 15, 2001.

DECISION

Because a council member received relator’s August 9, 2001, letter addressing the status of his remedial plans for the property, before the council’s August 15 meeting, we conclude that the letter should have been considered by the city. The city’s failure to consider the letter before rendering its decision amounts to an arbitrary and capricious act. We reverse and remand for further hearings that acknowledge relator’s letter and its statement of his intent to take remedial action.

Reversed and remanded; motion to strike granted in part and denied in part.

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

      . Relator cites no case law and provides no legal analysis for his arguments in this section of his brief. Minn. R. Civ.App. P. 128.02, subd. 1(d), provides that an appellate argument must be accompanied by citations to relevant authority and analysis. See Stephens, 614 N.W.2d at 769 (stating that request to strike portions of record must be denied because no relevant case law or legal analysis is provided in support of argument).


author: KLAPHAKE, Judge.

text:
    DAKOTA County, a public body corporate and politic, Appellant, v. BWBR ARCHITECTS, Inc., M.A. Mortenson Company, Inc., George W. Olsen Construction Company, Inc., A.J. Spanjers Company, Inc., Division 7 Corporation, and Transamerica Assurance Company of California, f/k/a Transamerica Insurance Company, a California corporation, Respondents, and Dalbec Roofing, Inc., Transamerica Premium Insurance Company, a California corporation, Employer’s Insurance of Wausau, and AmWest Surety Insurance Company, Defendants.
    No. C5-01-2194.
    Court of Appeals of Minnesota.
    June 4, 2002.

      Jeffrey C. Paulson, David D. Hammar-gren, Paul T. Meyer, Hammargren, Meyer & Paulson, P.A., Minneapolis, for appellant.
    Thomas F. Nelson, Michael G. Taylor, Robert L. Smith, Leonard, Street & Dei-nard, Minneapolis, for respondent BWBR Architects.
    Timothy M. O’Brien, John H. Hinderaker, Deborah J. Mackay, Faegre & Benson, P.L.L.P., Minneapolis, for respondent M.A. Mortenson Company.
    James A. Reding, Jr., Lars C. Erickson, Reding & Pilney, Oakdale, and David Snyder, Eckberg, Lammers, Briggs, Wolff & Vierling, Stillwater, for respondent George W. Olsen Company.
    Patrick Sweeney, JoAnn C. Toth, Spence, Ricke, Sweeney & Gernes, P.A., St. Paul, and Stanley E. Siegel, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, for respondent A.J. Spanjers Company.
    Kristine A. Kubes, Amy R. Baudler, Thomas R. Olson & Associates, St. Paul, for respondent Division 7 Corporation.
    Ronald E. Martell, Moore, Costello & Hart, P.L.L.P., Minneapolis, for respondent Transameriea Assurance Company of California.
    Considered and decided by KLAPHAKE, Presiding Judge, HANSON, Judge, and FOLEY, Judge.

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

   OPINION

KLAPHAKE, Judge.

Appellant challenges the grant of summary judgment to respondents, dismissing its claims for damages for defects to real property arising out of a construction project. Because more than two years passed after appellant should reasonably have discovered an actionable injury, we conclude that the district court did not err in granting summary judgment. Further, because any fraud or misrepresentation by respondents, which could have tolled the statute of limitations or estopped respondents from raising the statute of limitations as a defense, occurred before the discovery of the actionable injury, we affirm the district court on this issue as well.

FACTS

In 1988, appellant Dakota County entered into a contract with respondent BWBR Architects, Inc., to design the Eastern Administration Building (EAB). That same year, Dakota County hired respondent M.A. Mortenson Company, Inc. to act as construction manager for the project. As part of its contractual duties, Mortenson agreed to inspect all work for compliance with the plans, identify non-compliant work, monitor construction activity, review payment applications, and notify Dakota County if work was non-compliant. Respondents George W. Olsen Construction Company, Inc., and A.J. Spanjers Company, Inc., among others, worked as contractors or subcontractors on the project. Respondent Trans-america Assurance Company of California provided a performance bond for Olsen. It appears undisputed that the work was not completed in compliance with plans, that shortcuts were taken, and that substandard work was accepted by Morten-son, who apparently failed to undertake the inspections contemplated by its contract with Dakota County.

The construction was completed in 1990, and Dakota County occupied the building in February 1991. Beginning in 1992, Dakota County maintenance workers were notified about leaks in the building. The record contains copies of more than two dozen work orders for repair or inspection of leaks or water infiltration performed by Dakota County maintenance staff in the EAB during 1992-94. Essentially, these work orders included every side and every floor of the building.

Dakota County attempted to repair these leaks in a variety of ways, including caulking and sealing areas, sometimes successfully and sometimes to no avail. On September 15, 1994, Dakota County maintenance supervisor, Scott Daggett, sent a letter to Mortenson, BWBR, and Olsen in connection with one chronic leak, asking that they investigate and repair the problem. In this letter, Daggett identified four areas of concern and stated that although Dakota County had attempted to make temporary repairs,

the original construction design, coordination and workmanship continue to be responsible for this problem. Please take appropriate action immediately to avoid further water damage and deterioration of the structure. * * * Repair work must be completed by November 1,1994.

Copies of this letter were sent to the EAB building supervisor and the county attorney’s office.

Mortenson, Olsen, and BWBR met with Daggett on October 7, 1994, to discuss the water problems. In a follow-up letter, BWBR suggested that Dakota County examine the problem areas more closely and referred Dakota County to Mortenson and Olsen. Mortenson suggested that Dakota County investigate more thoroughly but denied any responsibility. Although Olsen originally offered to make a minor repair, it offered no further information and made no other offers to make any repairs after this meeting. November 1, 1994, passed ■without any action being taken by Dakota County. Instead, Dakota County continued to undertake piecemeal repairs to correct leakage in the years that followed.

In November 1996, Dakota County asked Howard Noziska, a masonry consultant performing other work for it, to view one of the chronic leaks. Noziska removed some sheetrock and made a cursory inspection, but could not identify a source of the leak. He recommended additional caulking.

In October 1997, Noziska did a thorough investigation at Dakota County’s request. He issued a preliminary report on October 28, and a final report on February 26, 1998. He found multiple problems and evidence of non-conforming or substandard construction, including deficiencies not readily noticeable because of concealment by walls and ceilings. Dakota County hired a contractor to make corrective repairs totaling $1.06 million. Dakota County initiated this suit against BWBR, Mor-tenson, Olsen, and other contractors and subcontractors on November 23, 1998, and December 1,1998.

On October 19, 2001, the district court granted summary judgment in favor of respondents, concluding that Dakota County’s claim was barred by the two-year statute of limitations for claims involving improvements to real property, MinmStat. § 541.051, subd. 1 (2000). The district court further held that because any misrepresentations relied on by Dakota County occurred prior to the discovery of an actionable injury, neither fraud nor misrepresentation tolled the statute of limitations or prevented respondents from using a statute of limitations defense. This appeal followed entry of judgment.

ISSUES

1. Did the district court err in granting summary judgment based on the statute of limitations, Minn.Stat. § 541.051, subd. 1 (2000)?

2. Did the district court err in finding that respondents’ misrepresentations or fraudulent concealment, which occurred before discovery of an actionable injury, did not estop respondents from raising a statute of limitations defense?

3. Did the district court err in finding that respondents’ misrepresentations or fraudulent concealment of facts, which occurred prior to discovery of an actionable injury, did not toll the statute of limitations?

ANALYSIS

Summary judgment shall be granted where there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. No genuine issue of material fact exists

when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative * * * to permit reasonable persons to draw different conclusions.

DLH Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). Introduction of affidavits contradicting earlier damaging deposition testimony is not sufficient to create a material fact issue. Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881 (Minn.App.1995).

I. Statute of Limitations

In actions for damages based on improvements to real property

[ejxcept where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal * * * 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!.]
For purposes [of the above], a cause of action accrues upon discovery of the injury[.]

Minn.Stat. § 541.051, subd. 1(a), (b) (2000). Thus, the statute of limitations begins to run when an actionable injury is discovered or, with due diligence, should have been discovered, regardless of whether the precise nature of the defect causing the injury is known. The Rivers v. Richard Schwartz/Neil Weber, Inc., 459 N.W.2d 166, 168 n. 2 (Minn.App.1990), review denied (Minn. Oct. 25,1990).

Dakota County argues that the leaks it experienced prior to 1997 were minor and either repairable or repaired, and did not give rise to a cause of action. Thus, Dakota County argues, a genuine issue of material fact exists concerning when it should reasonably have discovered that it had an actionable injury.

However, it is undisputed that there were 25 work orders for leaks in all areas of the building between 1992-94, that an invasive repair undertaken in 1994 for one chronic leak revealed faulty construction, and that some repairs were successful while others merely controlled the damage to the building. Most telling, in 1994, Dakota County threatened to take legal action unless repairs were made, but failed to do so despite the fact that no repairs were made. While it can be argued that the leaks from 1992-94 were minor nuisances, the September 15, 1994 letter and the October 7, 1994 meeting clearly show that an actionable injury existed at least as of 1994. This record, taken as a whole, would fail to permit any rational trier of fact to conclude that Dakota County was not aware of an injury. See DLH v. Russ, 566 N.W.2d at 71.

Dakota County filed an affidavit minimizing the effect of the 1994 letter by stating that Daggett did not have sufficient expertise to determine if the construction was defective. Expert knowledge is unnecessary, however, because it is knowledge of the injury, not the defect, which triggers the statute of limitations. See Hyland Hill N. Condo. Ass’n., Inc. v. Hy-land Hill Co., 549 N.W.2d 617, 621 (Minn.1996) (basing discovery of injury on observations of water leakage by individual homeowners). Daggett’s deposition shows quite clearly the extent of the water problems and the frustration of county employees who attempted to correct them. The fact that Daggett, in opposing summary judgment, filed an affidavit that attempts to downplay the seriousness of the leakage and underscores his lack of engineering expertise, does not create a genuine issue of material fact. See Oreck v. Harvey Homes, Inc., 602 N.W.2d 424, 429 (Minn.App.1999) (self-serving affidavit contradicting earlier deposition testimony does not create a genuine issue of material fact), review denied (Minn. Jan. 25, 2000).

Dakota County also argues that the various leaks were separate and distinct, or that some of the leaks were discovered well after 1994, so that the statute of limitations should not apply equally to these subsequent leaks. Similar arguments have been rejected by the supreme court, which has concluded that separate injuries must be aggregated under the mantel of defective construction and that the statute of limitations begins to run upon discovery of an actionable injury. See Hyland Hill, 549 N.W.2d at 621.

The undisputed facts establish that defects in construction existed in 1994. Had Dakota County undertaken an inspection in 1994 as thorough as that undertaken in 1997, the same problems surely would have been revealed. Because Dakota County failed to act in a timely manner after it should reasonably have been aware of an actionable injury, the district court did not err in granting summary judgment.

II. Estoppel

Dakota County contends that respondents Mortenson, Spanjers, and Olsen should be estopped from raising the defense of statute of limitations because of misrepresentation or failure to disclose known defects. Dakota County argues that because Mortenson was acting as a fiduciary in its role as construction manager, its failure to disclose known defects should toll the statute of limitations. Further, although some of the problems were known in 1994, because respondents failed to disclose other defects they were aware of or by their silence indicated that the limited repairs Dakota County was undertaking would be sufficient, they should be estopped from raising the statute of limitations.

Estoppel is an equitable doctrine that prevents a party from “taking unconscionable advantage of his own wrong by asserting his strict legal rights.” Mwt. Serv. Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140 (Minn.App.1989) (quotation omitted), review denied (Minn. Apr. 19, 1989). To raise estoppel, one most show representations made by one party that the other has reasonably relied on to his detriment. Id. Specifically with regard to Minn.Stat. § 541.051, estoppel is pled where, after discovery of a cause of action, the injured party has been induced to forego suit in reliance on the other party’s assurances that corrective action would be taken. Oreck, 602 N.W.2d at 428; Mut. Serv. Life Ins. Co., 435 N.W.2d at 141.

Here, Dakota County threatened to take legal action in 1994; none of the respondents claimed responsibility at that time or otherwise undertook repairs. Any assurances respondents made during construction or before problems arose are not sufficient to permit estoppel. See Oreck, 602 N.W.2d at 429; The Rivers, 459 N.W.2d at 170 (concluding that assurances of repair made in 1982 insufficient to raise estoppel issue in action brought in 1987).

“The application of equitable es-toppel is a question of fact unless only one inference can be drawn from the facts.” Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 622 (Minn.App.2000) (citation omitted). Because there were no assurances of repair after construction was completed that Dakota County might have relied on to forego suit, the district court did not err in its application of the law.

III. Fraud

Dakota County relies on the language of Minn.Stat. § 541.051, subd. 1, which begins “[ejxcept where fraud is involved,” to argue that the statute of limitations was tolled until evidence of respondents’ fraudulent concealment of all defects was discovered. Dakota County claims respondents committed fraud when they filed payment applications certifying that all work had been completed in accordance with specifications and when they thereafter failed to disclose the defective work, knowing that walls and ceilings hid those defects. Because Morten-son was acting in a fiduciary relationship with it, Dakota County argues that it need not show affirmative acts of concealment and that Mortenson’s silence is sufficient. See Cohen v. Appert, 463 N.W.2d 787, 790-91 (Minn.App.1990), review denied (Minn. Jan. 24, 1991).

In Mut. Serv. Life Ins., respondent guaranteed in 1982 that the floor thickness of the building was four to six inches. In 1983, MSI discovered that the floor was only two to four inches thick. This court held that fraud tolls the statute of limitations only until the fraud is discovered. Id., 435 N.W.2d at 140; see also Cohen, 463 N.W.2d at 790-91 (concluding that fraud tolls statute of limitations only until concealment is or could have been discovered with reasonable diligence). Thus, fraud is relevant only to the extent that it postpones the time until a party discovers or in the exercise reasonable diligence, should have discovered, the defective conditions.

The Mut. Serv. Life Ins. court relied on the opinion of Wittmer v. Ruegemer, 419 N.W.2d 493, 497-98 (Minn.1988), where-the supreme court stated:

With respect, however, to the two-year limitation period, it is apparent that fraud does not toll the statute because the limitation period does not, according to its terms, begin to run until discovery of the defective condition. Of course, fraudulent concealment is relevant if it is contended that the plaintiff should, by exercising reasonable diligence, have sooner discovered the defective condition.

Here, fraudulent concealment by respondents is relevant only insofar as it prevented Dakota County from learning of its injury. Once Dakota County discovered an actionable injury, fraudulent concealment no longer tolled the statute of limitations. The trigger was discovery of an actionable injury, not all possible actionable injuries. Otherwise, the statute of limitations, whose purpose is to lay to rest disputes over damages to real property, would have no real effect as injuries are doled out separately over a number of years. The district court thus did not err on this issue.

DECISION

The district court did not err in granting summary judgment to respondents. Viewing the evidence in a light most favorable to Dakota County, there are no genuine issues of material fact that would preclude a grant of summary judgment. Any misrepresentations or fraudulent concealment by respondents of defective construction occurred prior to the point at which Dakota County should reasonably have discovered an actionable injury. Respondents thus are not estopped from raising the statute of limitations as a defense, nor is the statute of limitations tolled beyond the point of discovery. In light of this decision, we need not rule on respondent Transamerica’s notice of review.

Affirmed.

      . Respondent Division 7 Corporation and defendant Dalbec Roofing, Inc., are not parties here, having settled with Dakota County.

      . The other insurers have either settled or are in bankruptcy.

      . Prior to 1988, one had to be aware of the defect causing the injury, which is a more complex question. After the 1988 amendment of the statute, one must be aware of an actionable injury, but the cause of the defect need not be determined. 1988 Minn. Laws ch. 607, § 1.

      . Wittmer is a pre 1988 case; thus, discovery of the defective condition, rather than an actionable injury, was necessary.


text:
    George JANSSEN, et al., Appellants, v. BEST & FLANAGAN, et al., Defendants, and Minneapolis Police Relief Association, Respondent.
    No. CX-01-2207.
    Court of Appeals of Minnesota.
    June 4, 2002.

      William J. Mavity, Pamela Marie Miller, Mavity & Associates, Minneapolis, for appellants.
    Patrick J. McLaughlin, Eric John Moutz, Dorsey & Whitney, LLP, Minneapolis, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and FOLEY, Judge.
   OPINION

FOLEY, Judge.

This is a derivative action by appellants George Janssen and others, all retired or active members or widows of the Minneapolis Police Department, on behalf of respondent and nominal defendant Minneapolis Police Relief Association (MPRA), a nonprofit corporation. MPRA had declined to pursue claims against its former counsel after a special litigation committee had so advised. Appellants commenced this legal malpractice action derivatively, claiming the MPRA should not have relied on the committee’s conclusion. The district court, after first deferring its decision on respondent’s motion to dismiss, ultimately dismissed the action based on the committee’s decision.

Appellants contend that their derivative legal malpractice action was improperly dismissed because (1) the nonprofit corporation statute does not authorize the appointment of a special litigation committee; (2) the court improperly deferred its initial decision that the committee action was invalid; and (3) the court erred in declining to review whether the committee pursued the procedures in good faith. Because there is no express statutory authority for a nonprofit corporation to appoint a special litigation committee, we reverse and remand.

FACTS

Appellants George Janssen and others are former members and trustees of the Minneapolis Police Relief Association (MPRA), a nonprofit corporation that administers a police officers’ pension fund. Appellants brought this legal malpractice action as a derivative claim on behalf of MPRA and against MPRA’s former legal counsel and respondent MPRA’s Board of Directors (the board). In response to appellants’ demand that MPRA join the litigation, the board appointed a “special litigation committee,” consisting of a single attorney, to evaluate whether joining was in the best interests of the corporation. After an investigation, the attorney rendered a report concluding that it was not in the best interests of MPRA to join appellants’ suit.

On the strength of the attorney’s report, the board filed a motion to dismiss the action. The district court reviewed the motion to dismiss, decided to defer the motion, and made findings. In its findings the district court limited the issue to whether the board was entitled to a dismissal pursuant to the principle that a district court must defer to the business judgment of a special litigation committee appointed by the board of directors to investigate a derivative claim. The district court concluded that the initial attorney’s investigation failed to satisfy the business judgment rule because the board gave him only limited access to information and the investigation, therefore, lacked independence from the board. Nevertheless, the court set out directions for remedying the investigation, deferred its decision on the motion, and allowed the board 90 days to renew its motion.

In response to the court’s order deferring its decision, the board passed a resolution authorizing the attorney access to any and all information he deemed necessary as suggested in the district court’s findings. Acting as a special litigation committee, the attorney then conducted a second investigation. After this second investigation and report, the attorney again rendered an opinion that pursuing litigation was not in the best interests of the corporation. Based on the attorney’s opinion, the board again decided to forgo participation in the litigation brought by appellants. The board renewed its motion to dismiss and submitted the attorney’s second report in support of the motion.

The district court granted the renewed motion finding that (1) MPRA remedied the deficiency of the investigation by passing a resolution authorizing the attorney unrestricted access to information; (2) the attorney based his conclusions on a business judgment standard; and (3) the second investigation was conducted in good faith and was independent because the report noted that the attorney had unrestricted access to information. The district court further noted that its review of the investigation was limited to only the procedural aspects of the investigation, finding that the second investigation was conducted in good faith. This appeal followed.

ISSUE

Did the district court err in granting the board’s motion to dismiss?

ANALYSIS

On appeal from a judgment of dismissal for failure to state a claim upon which relief can be granted, we review de novo the legal sufficiency of the claim. Leonard v. Northwest Airlines, Inc., 605 N.W.2d 425, 428 (Minn.App.2000), review denied (Minn. Apr. 18, 2000); see Minn. R. Civ. P. 12.02(e). In reviewing such cases, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997).

Whether nonprofit corporations may appoint special litigation committees to investigate derivative suits is a case of first impression in this state. In granting the board’s motion to dismiss, the district court determined that special litigation committees, such as those provided for in the Minnesota Business Corporation Act, Minn.Stat. §§ 302A.001-.917 (2000), are authorized by the Minnesota Nonprofit Corporation Act, Minn.Stat. §§ 317A.001-.909 (2000). We disagree.

The district court found that: (1) the nonprofit corporation statute, which authorizes a board of directors to appoint general committees, also includes the authority to appoint a special litigation committee under MinmStat. § 317A.241, subds. 1, 2 (2000); (2) even without express statutory authority for nonprofit corporations to appoint special litigation committees, there is nothing to suggest that such an independent committee cannot be appointed; (3) the standard of review for a nonprofit corporation’s decision is the business judgment standard; (4) a district court must defer to the business judgment of special litigation committees of nonprofit corporations; and (5) a district court is limited in its review of special litigation committee investigations to whether the investigation was conducted in good faith and independent of the board of directors.

Business entities are creatures of statute. State by Humphrey v. Ri-Mel, Inc., 417 N.W.2d 102, 106-07 (Minn.App. 1987), review denied (Minn. Feb. 17, 1988). Unlike the business corporation statute, the nonprofit corporation statute does not expressly authorize a board of directors to appoint a special litigation committee to investigate claims of members. Both statutes provide for resolutions establishing committees approved by the affirmative vote óf a majority of the board. Minn. Stat. §§ 302A.241, subd. 1, 317A.241, subd. 1 (2000). Both statutes also vest in the committees the authority of the board in the management of the business of the corporation to the extent provided in the resolution. Id., §§ 302A.241, subd. 1, 317A.241, subd. 1. As for committees established under the nonprofit corporation statute, “[c]ommittees are subject at all times to the direction and control of the board.” Id., § 317A.241, subd. 1. While the business corporation statute also subjects committees “at all times to the direction and control of the board,” it specifically excepts special litigation committees from this requirement.

Committees may include a special litigation committee consisting of one or more independent directors or other independent persons to consider legal rights or remedies of the corporation and whether those rights and remedies should be pursued. Committees other than special litigation committees * * * are subject at all times to the direction and control of the board.

Id., § 302A.241, subd. 1.

Comparing the statutory language, it is significant that the nonprofit corporation statute does not contain the business corporation statute’s express language authorizing its board of directors to appoint a special litigation committee. Minn.Stat. § 645.16 (2000) (when words of law are clear, letter of law shall not be disregarded). Specifically, authorizing the use of special litigation committees by for-profit corporations and omitting any reference to them for nonprofit corporations is a clear statement of legislative intent to treat the business entities differently in this aspect of management.

Special litigation committees provide for an independent evaluation of a derivative action. They serve to balance the rights and duties of the board and the dissenting shareholder by providing the corporation with “an important tool to rid itself of meritless or harmful litigation” while preventing directors from using the committee “to wrest control of bona fide derivative claims away from well-meaning plaintiffs.” 13 William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 6019.50 (1995 & Supp. 2001). Thus, the success of a committee’s evaluation of a derivative claim is dependent on the control the board has over the committee’s decision making. See Zapata Corp. v. Maldonado, 430 A.2d 779, 787 (Del.1981) (questioning whether “inquiry as to independence, good faith and reasonable investigation is sufficient safeguard against abuse”). While the board’s control over committees is typically absolute, the board must delegate its control to the special litigation committee.

When Minnesota’s business corporation statute was amended to include the current specific language authorizing the board to appoint special litigation committees and to delegate its control, however, the legislature declined to include the same language in the nonprofit corporation statute. 1989 Minn. Laws chs. 304, § 43; 172, § 5. Despite many subsequent opportunities to provide parallel special litigation committee language for nonprofit corporations, the legislature has not acted. It is the function of this court to interpret the statute and not determine its “wisdom and utility.” Black v. NuAire, Inc., 426 N.W.2d 203, 211 (Minn.App.1988), review denied (Minn. Aug. 24, 1988) (rejecting argument that business corporation statute applied only to publicly held corporation and not small, closely held corporation). Consequently, the district court erred in applying the special litigation committee concept contained in the business corporation statute to a nonprofit corporation.

Even if we were to hold that nonprofit corporations have the authority to appoint special litigation committees, in this case we would conclude that the special litigation committee failed to meet the threshold of the business judgment rule. See Skoglund v. Brady, 541 N.W.2d 17, 21 (Minn.App.1995) (applying business judgment rule, limiting review to whether special litigation committee was independent and conducted investigation in good faith), review denied (Minn. Feb. 27, 1996). The business judgment rule generally

vests responsibility for decision making in the corporation’s board of directors and precludes stockholders from disrupting the board’s decision through derivative actions where the board has determined a particular action is not in the corporation’s best interests.

Black, 426 N.W.2d at 210. The standard for reviewing special litigation committee conclusions adheres to the business judgment rule by limiting review to “whether the committee was independent and conducted its investigation in good faith.” Drilling v. Berman, 589 N.W.2d 503, 507 (Minn.App.1999) (citations omitted), review denied (Minn. May 18, 1999). If an investigation fails to meet the threshold independence and good-faith tests, therefore, the court does not defer to the special litigation committee conclusions.

Here, the district court found that the initial report by the investigating attorney failed the independence and good-faith requirements in three respects. First, the district court noted in its order deferring decision on appellants’ motion to dismiss that the investigation could not survive the limited review of independence and good faith as required by the business judgment rule, and that

the court cannot find that [the attorney] was independent, because he was told by the board of directors what to believe. * * * if ⅛ was ⅛0 truly independent, the decision of whether to conduct additional original factual investigation should have been his.

Second, the district court noted that in conducting the investigation, the attorney did not seek or receive input from appellants and

[t]he court can think of no good reason why an independent and thorough investigator would not welcome input, including factual material and legal argument, from any party in a position to make a meaningful contribution. The court assumes that [the attorney] did not seek input from [appellants] because the instructions he received from the board were to conduct a limited investigation.

Finally, the district court correctly noted that the attorney failed to render a business judgment decision, and instead offered the board a legal opinion.

Despite these flaws, the district court nonetheless deferred the dismissal motion and allowed the corporation an opportunity to remedy the deficiencies. In its order, the district court provided criteria for a second investigation that would satisfy the independence and good faith requirements. The district court order essentially directed respondent to engage in another investigation according to the district court’s directions. Following the district court’s directions, however, the board still ran afoul of the nonprofit corporation statute. The board could not, under the nonprofit corporation statute, delegate its duty to direct and control the committee, a prerequisite for an independent investigation.

The district court limited its review of the renewed motion to dismiss to only the second investigation conducted by the attorney. In reviewing the procedural aspects of the second report, the district court determined that it was unnecessary to refer to its original findings, felt obliged to defer to the committee’s conclusion, and granted respondent’s motion to dismiss. But the district court’s subsequent review of the deferred motion ignored the totality of the findings of the first motion, as well as the plain reading of the statute requiring that committees are at all times subject to the direction and control of the board. After finding that a special litigation committee failed to conduct an investigation independently or in good faith, that is, free of board control, a court is precluded from deferring to the committee’s decision, and thus, here, the district court erred in granting respondent’s motion to dismiss.

DECISION

Because the district court erroneously concluded that the nonprofit corporation statute authorized special litigation committees, the court erred by granting respondent’s motion to dismiss. We reverse and remand for trial.

Reversed and remanded.

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


author: TOUSSAINT, Chief Judge.

text:
    In the Matter of the WELFARE OF J.S.H.-G.
    No. C1-01-1902.
    Court of Appeals of Minnesota.
    June 11, 2002.

      Philip G. Villaume, Jeffrey David Schiek, Philip G. Villaume & Associates, Edina, for appellant.
    Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Kathryn Santelmann, Assistant Ramsey County Attorney, St. Paul, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and FOLEY, Judge.

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

   TOUSSAINT, Chief Judge.

The initial continuance of a juvenile delinquency disposition authorized under Minn.Stat. § 260B.198, subd. 7 (2000), commences at the disposition hearing when both the juvenile has admitted the allegations in the delinquency petition and the court is in a position to evaluate the best interests of the child.

OPINION

This is an appeal from a juvenile delinquency disposition order arising out of a charge of fourth-degree criminal sexual conduct. Because the district court timely adjudicated appellant based on sufficient findings and revoked his probation based on sufficient evidence, we affirm.

FACTS

In . December 2000, appellant J.S.H.-G’s (J.G.) mother reported her suspicions that eleven-year old J.G. had sexually abused his three-year-old stepsister. Subsequently, J.G. was charged with second-degree criminal sexual contact for touching his stepsister’s vagina with his penis.

At the initial hearing on January 2, 2001, the charge was amended to fourth-degree criminal sexual conduct, and J.G. pleaded guilty. By its January 3, 2001, order, the district court found that J.G. had pleaded guilty, ordered a psychosexual evaluation and probation, and continued the matter until February 18, 2001, for a disposition hearing. At J.G.’s request, the disposi-tional hearing was continued until February 27, 2001.

At the February 27, 2001, hearing, the district court heard from the probation officer and family members. Defense counsel urged the court to withhold adjudication to give J.G. an opportunity to “do good.” The state urged the court to adjudicate him delinquent and require him to register as a sex offender. The district court ordered J.G. placed on probation and to undergo sex offender treatment. The court withheld adjudication of delinquency and scheduled a review hearing.

At the May 29, 2001, non-appearance review, 90-days after the court initially withheld adjudication of delinquency, the court continued the matter to June 27. At the June 27 hearing, J.G.’s probation was continued for six months. Before the case came up again for review, J.G.’s probation officer reported a probation violation based on J.G.’s unauthorized calls to adult-sex telephone numbers. J.G. appeared for an initial probation hearing on August 23, 2001, denied the violation, and requested a continuance to obtain private counsel. The district court found probable cause that J.G. violated probation, adjudicated him delinquent on the charge of criminal sexual conduct in the fourth degree, and continued the matter as requested.

J.G. then retained private counsel who submitted a motion to vacate the adjudication of delinquency. After the September 13, 2001, probation violation hearing, the district court issued an October 5, 2001, order denying J.G.’s motion to vacate his adjudication of delinquency, finding that the state had proven by clear and convincing evidence that J.G. violated probation, and setting a disposition date. On October 19, 2001, the district court conducted a hearing on the probation violation and incorporated facts from the transcript to support its disposition, including requiring J.G. to submit to DNA testing and to register as a sex offender. This appeal followed.

ISSUES

I. Whether the initial 90-day continuance under Minn.Stat. § 260B.198, subd. 7 (2000), and Minn. R. Juv. P. 15.04, subd. 4, commenced when appellant pleaded guilty?
II. Whether the district court’s findings were sufficient to support the adjudication of delinquency?

ANALYSIS

I.

J.G. claims that the district court’s jurisdiction lapsed because it did not comply with the continuance provisions of Minn. Stat. § 260B.198, subd. 7 (2000), and Minn. R. Juv. P. 15.05, subd. 4. J.G. contends that the initial 90-day continuance commenced upon entry of his plea on January 2, 2001. The state argues that the initial continuance commenced at the February 27, 2001, disposition hearing.

By juvenile rule and statute, Minnesota law authorizes an initial 90-day continuance for a juvenile disposition and an additional 90-day continuance thereafter, not to exceed 180 days. Minn.Stat. § 260B.198, subd. 7 (2000); Minn. R. Juv. P. 15.05, subd. 4. While the statute and rule precisely set the same maximum length of allowable continuances, see In re Welfare of M.A.R., 558 N.W.2d 274, 276 (Minn.App.1997), the controversy here results from the imprecise and conflicting commencement dates for the initial 90-day continuance in the statute and rule. The statute provides for an initial continuance when (1) it is in the best interests of the child and the child has admitted the allegations in the petition before a judge; or (2) a hearing has been held under § 260B.163 and allegations in the petition have been duly proven. Minn.Stat. § 260B.198, subd. 7. Either prong of the statute permits commencement of the initial 90-day period. In contrast, the rule provides only one standard for the initial continuance for a child not in detention: “90 days from a finding that the charges have been proved” and when it is (1) in the best interests of the child; and (2) for the protection of the public. Minn. R. Juv. P. 15.05, subd 4(a).

Generally, in matters of procedure the rule governs over a conflicting statute, but the statute governs in matters of substance. State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994); see also In re Welfare of B.C.G., 537 N.W.2d 489, 491 (Minn.App.1995). Here, the statute’s two prongs provide distinct circumstances permitting an initial continuance. The rule merges aspects of each of those prongs into a third standard. Consequently, we conclude there is a conflict between the statute and the rule in this procedural matter, and we will apply the rule.

The district court correctly ordered the initial continuance at the February 27, 2001, disposition hearing. February 27 marks the first date on which the rule’s standard was satisfied. While the child had pleaded guilty on January 2, it was not until the February 27 hearing that the court, for the first time, also could act in the best interests of the child. It was at the February 27 hearing that the court first had for its consideration the relevant reports and testimony with which to assess the child and, accordingly, the child’s best interest. See 13 Robert Scott & John O. Sonsteng, Minnesota Practice 245 (1997) (“A proper disposition is dependent upon adequate information about the child.”). Consequently, the initial continuance period commenced on February 27.

On February 2, when appellant pleaded guilty, neither the standards articulated in the statute nor the standard articulated in the rule had been met. As noted, the district court did not have an adequate basis to make a decision in the child’s best interests — a requirement of the rule and the first prong of the statute. At the guilty plea hearing, the court first ordered the evaluations that would provide it with a basis to proceed in the best interests of the child and for the protection of the public. See, e.g., Minn.Stat. § 260B.198, subd. l(k) (2000) (stating that “the court shall order an independent professional assessment of the child’s need for sex offender treatment”); MinmStat. § 260B.193, subd. 2 (2000) (court may consider reports before making disposition). Also, at the guilty plea hearing, the district court did not make a finding that the allegations were duly proven — a requirement of the rule and the second prong of the statute. Here, the court found only that the child had admitted the facts, not that the allegations were duly proven. The finding that the allegations were duly proven occurred no earlier than the February 27 disposition hearing, when the court ordered that adjudication be withheld.

This conclusion is further supported by the objective of continuing a case without adjudication to allow the juvenile time to avoid the potential severe consequences of a finding of delinquency. See In re R.L.F., 256 N.W.2d 803, 806 (Minn.1977) (noting that purpose of statutes relating to youthful offenders is to minimize or eliminate adverse consequences for first-time offenders); Minn. R. Juv. P. 15.08 cmt (continuance without adjudication may prevent operation of some statutes requiring that child be adjudicated delinquent). Tying the continuances to the disposition order also has the consequence of allowing the court the full 180-day period to monitor juvenile offenders on probation. See Minn. R. Juv. P. 15.05, subd. 1 (tying adjudication or continuance without adjudication to the same time and same court order as disposition). As appellant’s district court counsel argued and the district court ruled, appellant was entitled to the opportunity to prove that he could “do good.” The continuances gave him that opportunity. They did not, as appellant’s counsel now argues, deprive him of any rights.

Because the initial 90-day continuance began on February 27, at the disposition hearing, the continuances were timely and the probation violation proceeding on August 23 fell within the 180-day maximum allowable continuance.

II.

The district court has broad discretion to order dispositions authorized by statute, and the disposition will not be disturbed absent an abuse of discretion. In re Welfare of J.B.A, 581 N.W.2d 37, 38 (Minn.App.1998), review denied (Minn. Aug. 31, 1998).

J.G. asserts that there was insufficient evidence to support the district court’s adjudication of delinquency on August 23 and the court failed to make sufficient written findings supporting the adjudication.

The rules provide that adjudication after initially granting a continuance without adjudication is a probation revocation proceeding governed by Minn. R. Juv. P. 15.07. Minn. R. Juv. P. 15.05, subd. 4(E). “A probation revocation proceeding to adjudicate the child on any allegation initially continued without adjudication must be commenced within the [180-day continuance] period.” Minn. R. Juv. P. 15.05, subd. 4(F).

At the August 23 hearing and within the 180-day continuance period, J.G.’s probation officer submitted her report of the probation violation to the district court and a revocation proceeding commenced. See Minn. R. Juv. P. 15.07, subd. 1. The court found there was probable cause as to the probation violation, and on that basis adjudicated J.G. delinquent.

At the time of the delinquency adjudication, the district court was not required to make written findings supporting its decision. See In re Welfare J.L.Y., 596 N.W.2d 692, 695 (Minn.App.1999). The court clearly indicated that the basis for the decision was the probable cause that J.G. had committed a probation violation. The mother and the probation officer’s testimony supported the decision. The court elaborated on its basis in a written memorandum filed after the full September 13 probation revocation hearing, at which additional testimony was taken, and upon appellant’s motion to vacate the adjudication. There, the court identified several bases for its adjudication: the court file, the psychological evaluation, the probation officer’s report (which documented a history of impulsive behavior), and the probation violation report. The court also noted that the full hearing was not held on August 23 only because appellant requested a continuance to obtain new counsel.

In short, the district court was not required to issue written findings to support the adjudication and did not act capriciously in adjudicating J.G. In fight of the evidence and testimony, the court found that there was clear and convincing evidence that J.G. had violated his probation by not fully cooperating with sex offender treatment and not following the rules of parents and caretakers. See Minn. R. Juv. P. 15.07, subd. 4(d). Because the record fully supports the district court’s findings, the court did not abuse its discretion in finding that J.G. violated the conditions of his probation.

DECISION

Because the district court did not err in using the date of disposition to commence the first continuance and did not abuse its discretion with its adjudication supported by the record, we affirm.

Affirmed.