author: KLAPHAKE, Judge.

text:
    NORTHERN STATES POWER CO., d/b/a Xcel Energy, Petitioner/Plaintiff, Appellant, v. CITY OF MENDOTA HEIGHTS, Respondent/Defendant, Respondent, and Power Line Task Force, Inc., Intervenor, Respondent.
    No. C3-02-65.
    Court of Appeals of Minnesota.
    July 16, 2002.

      Eric J. Magnuson, Peter Gray, Rider, Bennett, Egan & Arundel, LLP, and Harold J. Bagley, Assistant General Counsel, Northern States Power Co., d/b/a Xcel Energy, Minneapolis, for appellant.
    Pierre N. Regnier, Jessica E. Schwie, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, for respondent City of Mendota Heights.
    Michael C. Black, Michael C. Black Law Office, Ltd., St. Paul, for respondent Power Line Task Force, Inc.
    Considered and decided by KLAPHAKE, P.J., and G. BARRY ANDERSON, and STONEBURNER, JJ.
   OPINION

KLAPHAKE, Judge.

Appellant Northern States Power Co., d/b/a Xcel Energy (Xcel) brought this mandamus petition and declaratory judgment complaint against respondent City of Mendota Heights to compel the city to approve its application for a conditional use permit (CUP) under the automatic approval provisions of Minn.Stat. § 15.99 (2000). Xcel applied for the CUP to upgrade an existing transmission line running through the city. Power Line Task Force, Inc. (PLTF), a group of private citizens who live near the existing line, was allowed to intervene in support of the city’s position.

On cross motions for summary judgment, the district court concluded that Xcel was equitably estopped from asserting its right to automatic approval of the CUP under section 15.99. The court did not reach the other issues raised by the parties, including whether section 15.99 “unconstitutionally violates due process” or whether a later enacted franchise ordinance applies to Xcel’s pending CUP application.

Because, under the undisputed facts of this case, Xcel did not approve an extension of the deadline for acting on its CUP application beyond September 8, 2000, and because the city did not act prior to that date, Xcel is entitled to issuance of the CUP under section 15.99. We therefore reverse.

FACTS

On March 2, 1999, Xcel filed an application with the city for a conditional use permit to allow Xcel to upgrade an existing single-circuit transmission line to a double-circuit transmission line. The line runs through several other cities in the southeast metropolitan area, including South St. Paul and Sunfish Lake. The project would replace the existing poles with new, single-steel pole structures approximately 25 feet higher than the existing ones.

By statute, the city had 60 days from Xeel’s filing of the permit application to act. Minn.Stat. § 15.99 (2000). This time deadline was suspended pending completion of proceedings before the Minnesota Environmental Quality Board (MEQB). See Minn.Stat. 116D.04, subd. 2a(c) (1998) (allowing any group of 25 or more individuals to petition MEQB to consider whether proposed construction project has “potential for significant environmental effects”). In November 1999, the MEQB determined that the project did not have the potential for significant adverse environmental effects. With the conclusion of the MEQB proceedings, the parties agreed that the city’s 60-day statutory review period would resume. See Minn.Stat. § 15.99, subd. 3(e). On December 3, the city sent Xcel a letter in which it set out the parties’ agreement that the review period under section 15.99 would resume on January 25, 2000, when the next planning commission meeting was scheduled to be held, and expire on February 9, 2000, “unless further extended by the [c]ity.”

On January 25, the city’s planning commission met and reviewed the CUP application. Xcel representative Pat Cline verbally agreed “to continue the hearing to next month” due to the amount of materials the commission had recently received and the fact that not all neighbors had received notice of the meeting. Cline indicated that “[Xcel] had no dispute with the [c]ity regarding the starting and ending dates for the 60-day review period and that [Xcel] was more than happy to come back to the February * ⅜ ⅜ meeting.” The commission passed a motion to continue the public hearing on the CUP application until its February 22 meeting and “to extend the 60-day review period for an additional sixty days.” On February 11, two days after the February 9 deadline passed, the city sent Xcel a letter confirming that the planning commission had extended the review period for an additional 60 days, to April 9.

At its February 22 meeting, the planning commission recommended denial of the CUP. The commission cited concerns regarding potential health and safety risks associated with the project, possible detrimental impacts on nearby property values, and the need for a review of the project on a regional basis because of its impact on several cities and jurisdictions.

On March 6, the city council met to consider the recommendations of the planning commission. The city proposed that Xcel hire an independent consultant and that a “Regional Steering Committee” be created to involve the other cities along the power line. Xcel agreed to the proposal and agreed that the statutory period of review would be extended as long as the work of the committee was done in good faith and within a set time limit.

On April 4, the city council adopted a resolution authorizing the creation of the steering committee. The resolution further provided that the steering committee would retain an independent consultant to review the project and advise the committee. The city passed a second resolution denying Xcel’s permit application unless “[Xcel] submits a letter formally extending the review period for a period of five months from April 9.” On April 5, Xcel agreed in writing to an extension of the review period to September 8, 2000.

As planned, Xcel recommended several consultants and one was chosen by the regional steering committee. The committee met several times over the next few months. As agreed, Xcel paid the fees and monitored the progress of the consultant’s study.

The September 8, 2000 deadline, however, passed without any communication between Xcel and the city. The issue was not discussed until mid-March 2001, when an Xcel representative raised the issue with the city regarding the lack of “any documentation or exchange between us extending” the September 8 deadline and the possibility of a “de facto approval.”

In March 2001, the consultant issued a final report to the committee. The consultant agreed that the project was necessary and that it would eliminate the concern of electrical outage of the existing circuit and other associated lines. After evaluating five alternatives to the project, the consultant concluded that Xcel’s “proposed plan comes closest to meeting the electrical supply requirements, taking into account the economic cost of the improvements.” The consultant further concluded: “Double-circuiting the existing line on the existing right-of-way will reduce the electric and magnetic fields.”

On April 10, Xcel met with the city’s mayor. The mayor informed Xcel that its permit application was on the agenda for the next planning commission meeting, scheduled for April 24. Xcel responded that it “declined to again appear before the Planning Commission, having appeared before that body at the beginning of the process.” The mayor agreed that the record was complete, but now “believed that the [c]ity should require [Xcel] to offer to buy houses affected by EMF levels above a certain threshold as a permit condition.”

On May 8, 2001, Xcel sent a letter to the city demanding that the city issue the permit by June 5, 2001. Xcel stated that it had not approved any further extension of the September 8, 2000 deadline and that it “has not waived and does not waive its entitlement to issuance of a permit under [section 15.99].”

On May 15, the city enacted an ordinance prohibiting any utility from obtaining a permit to expand or construct new or existing facilities within the city without first obtaining a franchise agreement with the city. When introducing the ordinance, the mayor specifically referred to Xcel’s May 8 demand letter and acknowledged that the franchise ordinance was intended to defeat Xcel’s permit application.

Xcel thereafter brought this mandamus and declaratory judgment action, claiming that the review period under section 15.99 had expired on September 8, 2000, without any action by the city and that the permit was therefore automatically approved as of that date by operation of section 15.99. In granting summary judgment to the city, the district court determined that on April 5, 2000, when Xcel agreed to extend the review period to September 8, 2000, it

also agreed that it would recommend several possible consultants to the Steering Committee and would pay the fees of the consultant selected. By taking this position, [Xcel] approved not only an extension to the review period under § 15.99, but also that [the city] would be allowed to obtain a report from an independent consultant as part of the process of deciding whether to approve or deny the CUP application.

The district court concluded that Xcel is “equitably estopped from asserting that it has the right to automatic and unconditional approval of its Conditional Use permit under Minn.Stat. § 15.99.”

ISSUES
I. Did the district court err by concluding that Xcel, by its actions or conduct, either approved an extension to the September 8, 2000 deadline or waived its rights under MinmStat. § 15.99?
II. Can the city deny Xeel’s permit based on the franchise ordinance?
III. Is Minn.Stat. § 15.99 unconstitutional as applied to this case?

ANALYSIS

Summary judgment is appropriately granted when no genuine issues of material fact exist and one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. When, as here, the district court’s summary judgment determination involves the application of a statute to undisputed facts, our review is de novo. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996); see also Am. Tower, LP v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001) (construction and application of Minn.Stat. § 15.99 is question of law, which reviewing court considers de novo). Similarly, we review de novo the district court’s decision on a petition for a writ of mandamus that is based solely on legal determinations. Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278, 280 (Minn.App. Apr.25, 2000), review denied (Minn. July 25, 2000).

I.

A city must approve or deny a written permit application within 60 days under the following statute:

Except as otherwise provided in this section and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

MinmStat. § 15.99, subd. 2 (2000) (emphasis added). Extensions to this initial 60-day period are allowed as follows:

An agency may extend the time limit * * * before the end of the initial 60-day period by providing written notice of the extension to the applicant. The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.

Minn.Stat. § 15.99, subd. 3(f) (2000) (emphasis added).

Because this statute is unambiguous, this court must “give effect to the statute’s plain meaning.” Am. Tower, 636 N.W.2d at 313 (quotation omitted). While automatic approval of a permit application is an extraordinary remedy, Minnesota appellate courts have shown no reluctance to grant this remedy and enforce the provisions of section 15.99 when a city has failed to satisfy its clear requirements. See, e.g., id. (holding that city required to issue CUP under section 15.99, when city failed to make decision within 60 days of submission of application and failed to obtain extension); Kramer v. Otter Tail County Bd. of Comm’rs, 647 N.W.2d 23, 24 (Minn. App. 2002) (holding that if agency fails to approve or deny zoning application within 60-day limit imposed by section 15.99, applicant is entitled to writ of mandamus); Demolition Landfill, 609 N.W.2d at 281 (holding that because city council’s rejection of resolution granting permit not equivalent to denial of permit application, permit is deemed approved under section 15.99).

A. Equitable Estoppel

The district court concluded that Xcel was equitably estopped from asserting its right to automatic approval under section 15.99. Equitable estoppel is a question of law subject to de novo review. State v. Ramirez, 597 N.W.2d 575, 577 (Minn.App.1999). The doctrine requires misrepresentation of a material fact by a party knowing it to be false and intending it to be acted upon to the other party, who has no knowledge of the truth and relies upon the misrepresentation to its detriment. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn.1990); Transamerica Ins. Group v. Paul, 267 N.W.2d 180, 183 (Minn.1978). Because the city has failed to provide any evidence on several of the elements necessary to prove equitable estoppel, we conclude that the district court erred in granting the city summary judgment on that basis.

First, the city failed to provide evidence that Xcel intentionally made any misrepresentations regarding the September 8, 2000 deadline. While some of Xcel’s representatives made statements to the city council in the spring of 2000 to the effect that Xcel was willing to agree to additional extensions beyond September 8, the city never formally sought Xcel’s approval of additional extensions.

Second, the city was well aware of the September 8 deadline and of the requirements of section 15.99, because it had carefully documented all of its prior extensions in writing. Thus, the city cannot claim that the deadline was somehow concealed or that it had no knowledge of its obligations under the statute.

Third, and most important, the city cannot prove reasonable reliance. Although the city claims that it reasonably relied on Xcel’s commitment to participate in the regional review process and allow time for review of the consultant’s report in each of the individual cities, the city knew about the September 8 deadline, yet failed to act before that date by either seeking Xcel’s approval of another extension or by acting on Xcel’s permit application. At best, the city might claim that the - September 8 deadline passed because of oversight or mistake, but it cannot prove that it reasonably relied on that mistake. We therefore conclude that the district court erred in determining that Xcel is equitably es-topped from asserting its rights under section 15.99.

B. Waiver

Waiver is the voluntary relinquishment of a known right, and is ordinarily a question of fact for a jury unless “only one inference can be drawn from the facts.” Engstrom v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 312, 41 N.W.2d 422, 424 (1950) (citations omitted); Flaherty v. Indep. Sch. Dist. No. 2111, 577 N.W.2d 229, 232 (Minn.App.1998), review denied (Minn. June 17, 1998). Because the relevant facts here are fairly undisputed, the city’s claim of waiver presents us with a legal issue.

Subdivision 3(f) precludes any extension beyond two 60-day periods “unless approved by the applicant.” Minn.Stat. § 15.99, subd. 3(f). Xcel’s written approval to allow an extension to September 8, 2000 was explicit and definite, and satisfied the clear requirements of section 15.99. The regional review process ■ was not a zoning necessity and was undertaken by Xcel in cooperation with the involved cities in an effort to coordinate the project. Xcel’s written approval of an extension to September 8, 2000 cannot be construed as an open-ended extension of the city’s deadline for acting on Xcel’s permit application.

The city argues that a party may be bound by its actions and conduct, particularly when there is an opportunity to voice an objection and none is made. See Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 178, 84 N.W.2d 593, 603 (1957); Crystal Green v. City of Crystal, 421 N.W.2d 393, 393-94 (Minn.App.1988), review denied (Minn. May 25, 1988). The burden here was not on Xcel to act, however; the burden was on the city to act within the statutory deadline or to request an additional extension from Xcel.

To rule otherwise would be contrary to the plain language of section 15.99 and would add confusion to the interpretation of this statute. The underlying purpose of this statute is to establish clear deadlines for local governments to take action on zoning applications. Am. Tower, 636 N.W.2d at 312. “When courts start to interpret the subtle movements of the players for any evidence of implicit waiver of the deadlines, the purpose behind the automatic approval statutes is diminished.”. G. Brooker & K. Cole, Automatic Approval Statutes: Escape Hatches and Pitfalls, 29 Urban Lawyer 439, 466 (Summer 1997). Acceptance of the city’s claim of waiver “would nullify the time frame established by the legislature and is therefore directly contrary to the plain language of the statute.” Am. Tower, 636 N.W.2d at 313. We therefore conclude that, as a matter of law, Xcel has not waived its rights under section 15.99 and is entitled to automatic approval of its permit as of September 8, 2000.

Finally, even if Xcel’s continued participation and lack of objection might be construed as an implicit approval of some other deadline, that implicit approval was ultimately and wholly withdrawn when Xcel made its demand in May 2001 for issuance of its permit under section 15.99.

II.

Xcel argues that the city cannot deny its permit based on the city’s later enacted franchise ordinance. We agree.

Given our decision here, Xcel’s permit is automatically approved as of September 8, 2000. Because the city’s franchise ordinance was not enacted until May 15, 2001, it cannot be cited as a basis for denial of Xcel’s permit.

In addition, the Minnesota Supreme Court has warned zoning authorities that they do not have “carte blanche to arbitrarily block otherwise lawful development by the passage of new zoning law.” Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 576 (Minn.2000). In Interstate, the supreme court reversed a county’s denial of a CUP that was based in part on the county’s amendment of a zoning ordinance while the permit was pending. The court noted that “application of the new setback requirement to this proposed project would result in a ‘manifest injustice’ that warrants deviation from the usual rule of applying the law as amended.” Id. Similarly, here, where the city gave no explanation for the enactment of its franchise ordinance and acknowledged that its sole purpose was to defeat Xcel’s permit, the city is precluded from relying on its later enacted ordinance to deny the permit.

III.

The city and intervenor PLTF argue that section 15.99 is unconstitutional because it violates procedural due process and the doctrine of separation of powers. This issue was raised below but not addressed by the district court. Given our decision to reverse the district court and rule that the permit is automatically approved, this constitutional issue becomes relevant. Because the issue is a legal one and is adequately briefed on appeal, we address it here rather than remand to the district court.

Even assuming the city or PLTF has standing to assert rights of affected property owners, those property owners have been given ample and adequate notice and opportunity to be heard on Xcel’s permit application. The record shows that Xcel’s permit application was discussed and reviewed at numerous city planning commission and city council meetings. In addition, many of the environmental concerns were addressed at proceedings before the MEQB, the MPUC, and the regional steering commission. The affected property owners were given notice of these proceedings and were given many opportunities to be heard. See Gun Lake Ass’n v. County of Aitkin, 612 N.W.2d 177, 183 (Minn.App.2000) (rejecting procedural due process challenge to application of" section 15.99, when township resident and residents’ association given adequate opportunity to be heard), review denied (Minn. Sept. 13, 2000). We therefore conclude that the city’s and PLTF’s claims that automatic approval of Xcel’s permit under section 15.99 will violate procedural due process rights are without merit.

The city and PLTF also argue that automatic approval under section 15.99 violates the separation of powers doctrine because it denies affected property owners the right to seek redress for any detriment suffered by issuance of Xcel’s permit. To the extent that this argument mirrors the procedural due process claim, which we conclude is without merit, it too must fail. See Metro. Sports Facilities Comm’n v. Gen. Mills, Inc., 470 N.W.2d 118, 125 (Minn.1991) (rejecting “groundless separation of powers claim” that is clothed in meritless procedural due process claim). To the extent that this separation of powers argument is merely a claim by the city that the statute encroaches on its powers to consider zoning matters, such an encroachment is fully within the authority of the legislature to give and revoke. See N. Border Pipeline Co. v. Jackson County, Minn., 512 F.Supp. 1261, 1263 (D.Minn.1981); NSP v. City of Granite Falls, 463 N.W.2d 541, 543 (Minn.App.1990), review denied (Minn. Jan. 14 & 24, 1991).

We therefore reject the constitutional challenges to application of section 15.99.

DECISION

The district court’s denial of Xcel’s motion for summary judgment, grant of summary judgment to the city, and dismissal of Xcel’s complaint and petition for mandamus are reversed. Under Minn.Stat. § 15.99, subd. 3(f), Xcel approved an extension to September 8, 2000, not to some indefinite date in the future. The city easily could have requested that Xcel approve another extension. The city alternatively could have acted on Xcel’s permit by September 8, 2000. Because it did neither, by operation of section 15.99, Xcel’s permit is automatically approved.

Reversed.

      .Proceedings were also held before the Minnesota Public Utilities Commission (MPUC), on a petition alleging that the electric and magnetic fields (EMT's) from the existing transmission line caused illnesses and miscarriages. See Minn.Stat. § 216B.17 (1998) (allowing any 50 or more utility customers to file complaint with MPUC if they believe utility’s service does not meet standards of Minn.Stat. § 216B.04). After two days of hearings, the MPUC issued an order concluding that it did "not believe that the current record, or any record that could be developed with the resources at hand and the current state of scientific knowledge, justifies shutting down that Southeast Metro Power Line." On appeal to this court, the MPUC’s decision was affirmed because not arbitrary and capricious. Power Line Task Force, Inc. v. Pub. Util. Comm'n, C8-00-1143, 2001 WL 481949 (Minn.App. May 8, 2001).

      . Power Line Task Force, Inc. (PLTF) also attempted to challenge the MEQB's order in Ramsey County District Court. The district court eventually granted summary judgment to the MEQB and dismissed PLTF's complaint. Power Line Task Force, Inc. v. Minn. Envt’l Quality Bd., No. 62-C3-99-010952 (Aug. 24, 2000).

      . The city also informed Xcel that it would also need to apply for a wetlands permit and a critical areas permit. Xcel submitted these additional permit applications, and the parties agreed that these new applications would be considered with the CUP application but would not extend the review period for the original CUP application.

      . While Xcel also argues that its permit application was automatically approved as early as February 9, 2000, when the city failed to give Xcel timely, written notice of its extension, we need not rule on this argument. We note, however, that the city actually requested an extension of the February 9 deadline prior to its expiration at a public meeting before the planning commission and that Xcel, through its representative Pat Cline, verbally acquiesced in the city's extension of the deadline for an additional 60 days.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    In re SHIGELLOSIS LITIGATION, and Minnesota Horse and Hunt Club, Appellant. Trigger’s Supper Club, plaintiff, v. Sunridge Farms, Inc., Bix Fruit Company, Inc., Respondents.
    No. C2-01-1696.
    Court of Appeals of Minnesota.
    June 18, 2002.

      Michael C. Lindberg, Susan E. Gustad, Johnson & Lindberg, P.A., Minneapolis, MN, for appellant.
    John F. Angelí, Louise A. Behrendt, Stich, Angelí & Kreidler, P.A., Minne-
    apolis,. MN, for respondent. .Sunridge Farms, Inc.
    John M. Anderson, Matthew J. Franken, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, MN, for respondent Bix Fruit Company, Inc.
    • Considered.and decided by . TOUSSAINT, Presiding Judge, LANSING, Judge, and FOLEY, Judge.

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

   OPINION

LANSING, Judge.

More than 200 people became ill after eating bacteria-contaminated parsley at a restaurant operated by Horse & Hunt Club. This appeal arises from Horse & Hunt’s contribution and indemnity claims against the seller and the importer to allocate the $1,000,000 arbitration liability for the consumers’ damages. We affirm the denial of Horse & Hunt’s challenges to the jury verdict relating to the importer. But because the produce seller was dismissed before trial 'without a complaint being filed against the certified manufacturer, we reverse and remand for further proceedings against the seller.

FACTS

Horse & Hunt Club operates an eating facility that served bacteria-contaminated parsley oh parsley-buttered potatoes in August 1998. After complaints about a food-borne illness, the Minnesota Department of Health investigated and concluded that the illness resulted from ingestion of parsley contaminated with the shigella bacteria.

Through discovery, Horse & Hunt determined the parsley had been grown in Mexico by Agricola Herendira/Grupo Pas L.L.C. (Grupo Pas); purchased and imported by Sunridge Farms of California; sold first to Bix Fruit Company, a seller and distributor; and then to Horse & Hunt. The. Minnesota Department of Health’s trace-back investigation disclosed that the water used by Grupo Pas to rinse and ice the parsley in Mexico was untreated and contaminated with shigella bacteria. • •

The consumers affected by the bacteria sued Horse & Hunt for negligence, per se negligence for violation of food- statutes, breach of implied warranties of merchantability and fitness,' and strict liability. Horse & Hunt brought a third-party contribution-and-indemnity claim against Bix, the distributor, and against Sunridge, the importer. The district court ordered that the parties address issues of relative fault among the entities in the distribution chain before resolving the consumers’ causation and damage claims.

Horse. & Hunt initially identified Bix as the parsley manufacturer. But after the close of discovery, Horse & ,Hunt alleged instead that Sunridge was the manufacturer and moved for summary judgment. Horse & Hunt claimed that Sunridge, as the importer, should be deemed the “manufacturer” of the contaminated parsley because it marketed and sold the parsley under its own trademarked name, “Coastline,” and because no party had produced evidence that Horse & Hunt was negligent in handling the parsley.

At the same time, Bix moved for dismissal of strict-liability claims under Minn. Stat. § 544.41 (2000), the “seller’s exception” statute, and summary judgment on the remaining claims. Bix identified the Mexican grower, Grupo Pas, as the manufacturer ‘ of the contaminated parsley. Horse & Hunt opposed Bix’s motion, arguing that the identity of the manufacturer was in dispute, that Grupo Pas was not a party to the litigation, and that Grupo Pas was not subject to jurisdiction in Minnesota courts.

The district court denied Horse & Hunt’s motion because of the substantial factual dispute over the identity of the “true manufacturer” of the contaminated parsley. But the court granted Bix’s motion for summary judgment based on Horse & Hunt’s argument that Sunridge was a manufacturer. The court granted leave to Sunridge to interplead Grupo Pas, but Sunridge instead brought a fifth-party complaint against International Farm Services, who was later dismissed on jurisdictional grounds.

After Bix was dismissed, Horse & Hunt and Sunridge agreed to resolve the consumers’ claims through binding arbitration. While the arbitration was proceeding, the affected consumers moved for summary judgment on strict-liability grounds. Horse & Hunt admitted it had sold food contaminated by shigella but opposed the entry of summary judgment until the relative fault of the codefendants was resolved at trial. The court granted summary judgment against Horse & Hunt but stayed entry of judgment until the conclusion of the trial among the codefend-ants.

Horse & Hunt’s eontribution-and-indem-nity claim against Sunridge was tried to a jury. Horse & Hunt requested jury instructions on strict liability for manufacturing defects (CIVJIG 75.30), negligence of a seller of goods (CIVJIG 75.35), per se negligence based on violation of federal food statutes (CIVJIG 25.45), and implied warranty of merchantability (CIVJIG 22.25, .55). The court declined to instruct on the negligence of a' seller, and on breach of warranty on the basis that this claim merged into the strict-liability and negligence claims.

By special verdict,, the jury found that the parsley was defective and unreasonably dangerous, Sunridge sold the contaminated parsley but did not manufacture or exercise significant control over it, Grupo Pas manufactured the parsley- and was negligent in manufacturing it, and Horse & Hunt was not negligent in using the parsley. Even though the jury found only Grupo Pas at fault, the jury assessed fault to Sunridge (27%), Grupo Pas (65%) and Horse & Hunt (8%). The district court concluded that Horse & Hunt was not entitled to recover against Sunridge and found that the apportionment of fault was inconsistent with the other answers.

Horse & Hunt moved for JNOV and a new trial. The district court denied all post-trial motions. The court- confirmed the arbitration awards and ordered Horse & Hunt to fund the awards. Horse & Hunt appeals from the denial of posttrial motions and from the order granting summary judgment to Bix.

ISSUES

I. Can., a commercial seller in a strict-liability aetion.be dismissed under Minn.Stat. § 544.41 before a complaint has been filed against the certified manufacturer?

II. Can a commercial seller be liable for negligence in selling contaminated produce if no standard of care for a produce purchaser and reseller has been established?

III. Did the district court err in declining to grant JNOV?

ANALYSIS

The multiple causes of action and the results of pretrial motions have created confusion among, the parties. In the appellate submissions, the jury instructions, and the district court memoranda, Horse & Hunt has been misidentified as the “plaintiff,” and other references indicate that Horse & Hunt has brought claims of strict liability or negligence against the other defendants.

For purposes of clarity in analysis and in subsequent proceedings, we emphasize that the claims among Horse & Hunt, Bix, and Sunridge are claims among codefend-ants for contribution and indemnity. See Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 366-68 (Minn.1977) (noting indemnity generally shifts loss away from faultless party who is nevertheless liable in tort); City of Willmar v. Short-Elliotf-Hendrickson, Inc., 512 N.W.2d 872, 874 (Minn.1994) (stating contribution “not based upon contract or tort, * * * but on one party paying more than its fair share of a common liability”).

I

Horse & Hunt, in its notice of appeal, seeks review of the summary judgment in favor of Bix. In its brief, Horse & Hunt has shifted its focus to argue that Bix should be reinstated in the action under the seller’s-exeeption statute, Minn. Stat. § 544.41, and required to contribute to the arbitration fund for the affected consumers. Because the summary judgment may have precluded the reinstatement process under section 544.41, we construe both claims as an appeal from summary judgment. When we review a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in. its application of the law. Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn.1995).

The Minnesota Supreme Court adopted the concept of strict tort -liability against the manufacturer of a defective product in McCormack v. Hankscraft Co., 278 Minn. 322,. 333-34, 154 N.W.2d 488, 497-98 (1967). Three years later, the court clarified that an injured person may also maintain an- action for strict liability im tort against the commercial seller of a defective product, even if the seller has no active fault or negligence. Farr v. Armstrong Rubber Co., 288 Minn. 83, 89, 179 N.W.2d 64, 68 (1970) (citing Restatement (Second) of Torts § 402A (1965) (stating commercial seller who sells defective product is liable for physical harm even if seller is not negligent and not in privity with the injured person)).

Strict liability in tort developed from strong public-policy considerations to protect consumers from harm caused by defective products and to impose the cost of defective products on the maker, who presumably profits from the product. See McCormack, 278 Minn. at 338, 154 N.W.2d at 500; Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321, 327-28, 188 N.W.2d 426, 431-32 (1971). A key rationale for strict liability in tort is- a “risk bearing economic” theory in which merchants and manufacturers have the capacity to., distribute their losses among the many purchasers of the product. W. Page Keeton and Dan B. Dobbs, Prosser and Keeton on Torts § 98, at 692-93 (5th ed.1984).

The effect of these strict-liability principles can be harsh on a commercial seller who does not control the design or manufacture of the product and who does not know or-have reason to know of the defect. See, e.g., Marcan v. Kmart Corp., 573 N.W.2d 728, 730-31 (Minn.App.1998), review denied (Minn. April 14, 1998) (holding commercial seller with no causal fault responsible, under strict-liability principles, for all causal fault of the manufacturer).

The practical effect of strict-liability principles is to hold a faultless seller jointly and severally liable for the causal fault of the manufacturer. See Hudson v. Snyder Body, Inc. 326 N.W.2d 149, 158 (Minn.1982) (Simonett, J., concurring in part and dissenting in part) (describing strict liability of an inert seller as “vicarious” or “derivative” rather than comparative). But the faultless seller can seek and recover indemnity from the defect-causing party in the product’s chain of distribution. See Farr, 288 Minn, at 96-97, 179 N.W.2d at 72 (noting a passive-middleman retailer may recover indemnity from the manufacturer who furnished the defective product); see also Tolbert, 255 N.W.2d at 366-67 (noting common law indemnity shifts entire loss from a party who has no personal fault, but is nevertheless liable in' tort, to the at-fault party).

The seller’s-exception statute, Minn. Stat. § 544.41, tempers the harsh effect of strict liability as it applies to passive sellers, while ensuring that a person injured by a defective product can recover from a viable source. The seller’s-exception statute permits dismissal of strict-liability claims against a seller of a defective product who certifies the correct identity of the manufacturer,‘but only after a complaint is filed against the manufacturer. Minn.Stat. § 544.41, subds. 1, 2. The seller may not be dismissed, however, if it has played an active role in creating the product defect or had actual knowledge of the defect. Id. at subd. 3(a-c); Gorath v. Rockwell Int’l, Inc., 441 N.W.2d 128, 131-32 (Minn.App.1989), review denied (Minn. July 27, 1989). The seller’s-exception statute sets forth a specific procedure:

Subd. 2. Once the plaintiff has filed a complaint against a manufacturer and the manufacturer has or is required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant, provided the certifying defendant [did not exercise significant control over the manufacture of the product, did not provide warnings or instructions to the manufacturer, did not have actual knowledge of the defect or create the defect]. Due diligence shall be exercised by the certifying defendant in providing the plaintiff with the correct identity of the manufacturer and due diligence shall be exercised by the plaintiff in filing a lawsuit and obtaining jurisdiction over the manufacturer.

Minn.Stat. § 544.41, subd. 2.

A motion to dismiss under the seller’s exception is comparable to a rule 12(b) motion to dismiss for failure to state a cause of action. Indeck Power Equip. Co. v. Jefferson Smurfit Corp., 881 F.Supp. 338, 342 (N.D.Ill.1995). The strict-liability claim can be reinstated against the seller at any time the injured party cannot maintain an action against the manufacturer because the manufacturer no longer exists, is insolvent, is not subject to jurisdiction, or cannot be sued. Minn.Stat. § 544.41, subd. 2.

Bix moved for dismissal of strict-liability claims against it based on subdivision 2 of the seller’s-exception statute while certifying that Grupo Pas was the parsley manufacturer. In its motion papers, Bix claimed that the seller’s-exception statute requires only that the manufacturer be identifíéd, not joined. We disagree. The plain language of the seller’s-exception statute requires that the identified manufacturer be served unth process prior to dismissal of strict-liability claims against the passive seller. Id. at subd. 2. And it further requires that, before dismissal, the manufacturer must have responded or have the obligation to respond. Dismissal is not appropriate if the plaintiffs action cannot reach a manufacturer or the manufacturer is insolvent. Bastian v. Wausau Homes, Inc., 638 F.Supp. 1325, 1327 (N.D.Ill.1986) (applying similar Illinois statute). The' evident purpose of the seller’s-exception statute is to ensure the manufacturer can be - joined in the lawsuit before the passive sellers are dismissed from strict-liability claims.

None of the parties to the litigation joined or made any attempt to join the alleged manufacturer, Grupo Pas. In some circumstances, it may be within the court’s-discretion to dismiss before completion of these procedures; for instance; when a plaintiff fails to demonstrate due diligence in filing a complaint against the certified ' ■ manufacturer. ' Minn.Stat. § 544.41, subd. 2. But the record does not indicate that this occurred. Horse <& Hunt was not the plaintiff in the product-liability action, it was a defendant. Furthermore, the district 'court granted leave to Sun-ridge, not Horse & Hunt, to initiate a complaint against the manufacturer. In this case, it was error to dismiss the strict-liability claim against Bix through summary judgment when the alleged manufacturer certified by Bix was not served or joined in the litigation.

In granting summary judgment for Bix, the district court reasoned that dismissal was appropriate under the seller’s-exception statute because one of the codefend-ants, Horse & Hunt, alleged that Sunridge, who was already joined in' the litigation, had exercised sufficient control over the parsley to' be deemed the “manufacturer” of the parsley. That determination was premature and rejected by the jury.

The statutory language contemplates that: (1) a seller will certify the correct identity of the manufacturer; (2) the plaintiff (i.e., the affected consumers) or the certifying defendant will join the identified manufacturer; and (3) strict-liability claims will be dismissed against the certifying defendant. Minn.Stat. § 544.41, subds. 1, 2. The manufacturer identified by Bix was. not joined in the litigation. We reverse summary judgment for Bix and hold that Bix remains potentially liable on the outstanding contribution claims against it.

At the same time the district court granted Bix’s motion, the district court denied Horse & Hunt’s motion for dismissal under the seller’s exception because a “substantial” factual dispute remained on who manufactured the contaminated parsley. The existence of the factual dispute over the identity of the manufacturer, together with the failure to require service on Grupo Pas, underscores the premature nature of the dismissal. The seller’s-exception statute allows a nonmanufacturing defendant who did not contribute to the alleged defect to defer strict liability to the manufacturer, but it does not permit the seller to avoid responsibility when the manufacturer cannot be sued.

II

Horse & Hunt contends that it is entitled to a new trial on its contribution claim against Sunridge because of jury-instruction error on ordinary negligence. It argues that the district court failed to instruct the jury that a seller may be negligent and failed to include a special-verdict question on the negligence of Sun-ridge as seller. In evaluating a motion for a new trial, the district court must consider both the claimed error and whether prejudice has resulted to the moving party. See Meagher v. Kavli, 256 Minn. 54, 61-62, 97 N:W.2d 370, 375-76 (1959).

In declining to grant a new trial, the district court stated that Horse &' Hunt had never advanced the theory that Sun-ridge was negligent in its role as seller but had only maintained that Sunridge was the manufacturer of the parsley. The record does not support that characterization. Although Horse & Hunt, in its summary judgment motion, claimed that Sunridge manufactured the parsley, Horse & Hunt also indicated its intent to establish Sun-ridge’s liability to the affected consumers on alternative theories.

In submitting its trial materials, Horse & Hunt requested a jury instruction under CIVJIG 75.35, Duty of the Manufacturer or Seller to Use Reasonable Care, which instructs the jury that a manufacturer or seller must use reasonable care in the manufacture, assembly, inspection, packaging, and testing of a product. 4A Minnesota Practice, CIVJIG 75.35 (1999). Consistent with this requested jury instruction, Horse & Horse also requested a corresponding question on the special verdict asking whether Sunridge Farms was negligent in manufacturing, assembling, inspecting, packaging, or testing the parsley to protect consumers. In addition, Horse & Hunt indicated several times during in-chambers discussions that it was proceeding on contribution-and-indemnity claims against Sunridge both as manufacturer and seller.

Even though Horse & Hunt preserved its objection for failure to instruct on negligence, we are not persuaded that the district court erred in denying it. We agree that a seller may have independent fault under negligence principles if the seller breached a duty to the injured party. See Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729-30 (Minn.1990) (holding evidence supported finding of negligence against seller who failed to inspect grab bar on tractor it sold); Erickson v. American Honda Motor Co., 455 N.W.2d 74, 77-78 (Minn.App.1990), review denied (Minn. July 13, 1990) (holding evidence supported finding of negligence against a dealer who sold an all-terrain vehicle without providing a safety brochure and video and without showing location of owner’s manual). A seller may also be liable in negligence for failure to discover a product defect if the seller knows, or has reason to know, that the product is dangerous. Gorath, 441 N.W.2d at 132 (citing Restatement (Second) of Torts § 402). The negligence of the seller would then be compared with the negligence or strict liability of the manufacturer. See Busch v. Busch Constr., Inc., 262 N.W.2d 377, 393-94 (Minn.1977) (noting ordinary negligence may be compared with strict liability of manufacturer). Thus, theoretically Sunridge could be liable to the affected consumers for negligence.

Horse & Hunt claims that Sunridge failed to use reasonable care in determining whether the parsley it sold was produced under hygienic conditions. Again, this is theoretically possible. But our review of the record .shows that Horse .& Hunt failed to produce evidence establishing a relevant standard of care applicable to purchasers and resellers of produce. Horse & Hunt presented expert testimony through a food technologist. But in response to cross-examination, the technologist acknowledged that no. governmental regulations require a produce purchaser to investigate the growing methods of its produce suppliers; the industry does not have a routine standard for produce purchasers to investigate the growers or visit farms that grow the produce; in general, the produce purchasers who require specific standards for produce farms are very large and typically own or lease their own farms; and testing of produce does' not guarantee the purity of the produce because testing involves only one segment of the truckload. The technologist also admitted that he had no knowledge' of the methods used in purchasing produce from Mexico, whether farm inspections are allowed in Mexico, and whether the United States government plays any role in inspecting and testing produce imported from Mexico. -

Because Horse & Hunt failed to establish a standard of care applicable to Sun-ridge as a purchaser and reseller of fresh produce, we hold that the district court’s failure to instruct the jury on negligence of a seller and to' submit a special-verdict question was harmless error.

Ill

Judgment notwithstanding the verdict is proper when a jury verdict has no reasonable support in fact or is contrary to the law. Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn.1990). Horse & Hunt appeals the denial of its request for JNOV on three grounds.

A

Horse & Hunt requested JNOV on its claim that Sunridge is per se negligent for introducing adulterated food into interstate commerce, an act prohibited by the federal Food, Drug and Cosmetic Act. See 21 U.S.C. §§ 331, 342 (1994 & Supp. V 1999). This issue fails on both procedural and substantive grounds.

First, the special verdict contains no findings on whether Sunridge violated the federal food statute and whether the alleged violation has a causal connection to the affected consumers’ claims. Yet Horse & Hunt asked the district court to enter judgment on the per se negligence claims for violating federal food statutes.

JNOV is essentially a procedural device through which the court substitutes its judgment for the jury’s verdict. 1A David Herr & Roger Haydock, Minnesota Practice, - § 50.10 (West 1998). But the jury findings are not contrary to the requested judgment; instead, the jury findings on the statutory violation and causation are nonexistent. After reviewing the record, we find that although Horse & Hunt requested a jury instruction on per se negligence that included the relevant federal food statutes, Horse & Hunt did not request a corresponding special-verdict question tailored to discovering whether the federal food statute had been violated and whether such violation was causally connected to the consumer claims, and requiring the jury to include any causal negligence in its apportionment. When the requesting party has not submitted the issue to the jury and fact issues appropriate for jury resolution remain, it is improper for the district court to grant JNOY. See Hartz v. Nelson (In re Estate of Hartz), 437 N.W.2d 749, 752 (Minn.App.1989) (noting failure to object to special verdict prior to jury submission constitutes waiver).

Second, we are not convinced that the federal food statute at issue establishes a seller’s standard of care that supplants the principles of strict liability and negligence developed in modern product-liability law. The statute that Horse & Hunt claims was violated prohibits certain acts:

§ 331. Prohibited acts

The following acts and the causing thereof are prohibited:
(a). The introduction or delivery for introduction into interstate commerce of ■any food, drug, device, or cosmetic that is adulterated or misbranded.
(b) The adulteration or misbranding of any food,- drug, device, or cosmetic in interstate commerce.

21 U.S.C. § 331(a)(b).

This section of the Food, Drug and Cosmetic Act also permits the government to enforce these provisions through the use of injunctions, criminal penalties, and civil fines. See id. at § 332(a) (permitting injunction of most prohibited activities); § 333(a) (permitting imprisonment, criminal fines, and civil penalties for prohibited acts). It does not indicate that the prohibited-act standard gives rise to a civil action.

Violation of a statute may constitute per se negligence. Scott v. Indep. School Dist. 709, 256 N.W.2d 485, 488 (Minn.1977). If a statute defines the fixed standard of care and violation of the statute is conclusive evidence of negligence, the statute creates per se negligence. Id. In determining whether a statute creates a standard of care, we consider the purpose of the statute and the interests it is intended to protect. Id.

Not all statutes supplant the common-law standard of care for a negligence action. For example, a landlord’s violation of the Uniform Building Code is not per se negligence unless the landlord, among other things, knew or should have known of the violation and failed to take reasonable steps to remedy the violation. Bills v. Willow Run I Apartments, 547 N.W.2d 693, 695 (Minn.1996). Failing to characterize the statutory standard as per se negligence does not leave the injured person without a remedy, but links negligence with established common law standards. Id. at 694-95; see also Mpls. Employees Ret. Fund v. Allison-Williams Co., 519 N.W.2d 176, 182-83 (Minn.1994) (refusing to supplant longstanding common-law negligence standard of care applicable to brokers with statutory standard in the Minnesota Securities Act).

The federal food statute does not require a food seller to perform an affirmative act such as periodic testing of purchased produce or periodic inspections of the sources of produce. Instead, the provision prohibits the introduction of adulterated food into interstate commerce. If we interpreted this prohibition to establish a statutory negligence standard of care applicable to food sellers, the simple act of selling adulterated food, without more, would constitute conclusive proof of negligence and alter longstanding principles of common law negligence requiring a seller to know or have reason to know of the defect in a product to be held negligent. See, e.g., Gorath, 441 N.W.2d at 132 (noting seller is liable in negligence for failure to discover a product defect if the seller knows, or has reason to know, that the product is dangerous) (citing Restatement (Second) of Torts § 402 (1965)); see also Swenson v. Purity Baking Co., 183 Minn. 289, 290-91, 236 N.W. 310, 311 (Minn.1931) (upholding directed verdict in favor of bread manufacturer on negligence claim for larva embedded in bread when every reasonable precaution was taken to keep bread pure).

Any alleged statutory standard created by this particular food statute is more adequately expressed by Minnesota’s common law principles of strict liability. See, e.g., Farr, 288 Minn, at 89, 179 N.W.2d at 68 (1970) (expressing principles, of strict liability holding a non-negligent seller liable if the seller sold the defective product). The district court did not err in refusing to grant JNOV on this issue.

B

Horse & Hunt also requested JNOV on grounds that the evidence is conclusive that Sunridge breached its implied warranty of merchantability.

This claim demonstrates the same, procedural problem. JNOV is a device allowing the court to substitute its findings for the jury findings when the jury findings have no reasonable support in fact or are contrary to the law; See Diesen; 455 N.W.2d at 452. But the jury did not make any findings on whether Sunridge breached its implied warranty to the affected consumers because the district court declined to allow this theory of recovery to be submitted to the jury. The proper method of review would be a new-trial motion to challenge the district court’s refusal to submit this theory of recovery to-the jury. See Minn. R. Civ. P. 59.01 (discussing grounds for new trial).

Even if we reached the merits of this claim, however, the implied warranty-of-merchantability claim would likely merge into strict-liability claims. Strict liability and breach of implied warranty of merchantability are closely related and involve similar proof; when an instruction on strict liability is stronger and broader under the case facts, it would be redundant and confusing to instruct on breach of implied warranty. Goblirsch v. W. Land Roller Co., 310 Minn. 471, 475-77, 246 N.W.2d 687, 690-91 (1976) (citing Farr, 288 Minn, at 89, 179 N.W.2d at 68). Correspondingly, this court has twice held that breach of warranty claims merge - into strict liability. Westbrook v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn.App.1991), review denied (Minn. Sept. 13, 1991) (citing Bilotta v. Kelley Co., 346 N.W.2d 616, 624 (Minn.1984) for proposition that strict liability, negligence, and implied warranty merge into a single product-liability theory); Cont’l Ins. Co. v. Loctite Corp., 352 N.W.2d 460, 463 (Minn.App.1984) (citing Farr, 288 Minn. at 93, 179 N.W.2d at 71, for same proposition).

. Commentators also endorse' this concept of merger. Michael K. Steenson, The Anatomy of Products Liability in Minnesota: The Theories of Recovery, 6 Wm. Mitchell L.Rev. 1, 49-54, 56 (1980) (arguing that implied warranty instructions should hot be given when strict liability is applicable); see also "Keeton and Dobbs, supra, § 95, at 679-81, § 97, at 691-92, § 98, at 692-94 (discussing development of modern product-liability law and suggesting strict liability in tort is a more realistic theory of recovery than breach of implied warranty in cases when a defective product causes physical harm to persons or tangible things). The district court did not err in refusing to grant JNOV on this issue.

C

Horse & Hunt’s third JNOV request challenges the jury’s finding that Sunridge was not the manufacturer of the contaminated parsley. The jury found that the Mexican farm, Grupo Pas, was the manufacturer. For two reasons, we affirm the denial of JNOV on this issue.

First, we agree with the district court that the jury finding has a reasonable basis in fact. The evidence at trial demonstrated that Sunridge did not grow the parsley; it purchased the parsley and required that it be packaged in waxed cardboard boxes with Sunridge’s brand name, “Coastline.” The jury had sufficient evidence to conclude that Sunridge was not the manufacturer and did not exercise significant control over the growth or harvesting of the parsley.

Second, Horse & Hunt did not request a jury instruction defining the criteria for determining who manufactured the parsley. See Restatement (Third) of Torts, Products Liability § 14 (1998) (stating that one engaged in the business of selling who sells, as its own, a product manufactured by another is subject to the same liability as if it were the manufacturer). Indeed, the record reflects that, after deliberations had begun, the jury asked the district court for further guidance in identifying the manufacturer. The district court properly refused to use the procedural device of JNOV to remedy any failure to request an appropriate instruction.

IV

Having determined that Bix’s motion for summary judgment was prematurely granted and having dispensed with challenges to the jury verdict, the respective rights of the three sellers — Horse & Hunt, Sunridge, and Bix — remain unresolved. The jury verdict determined that both Horse & Hunt and Sunridge sold defective and unreasonably dangerous parsley. Neither has active fault or negligence, but both are liable to the consumers under principles of strict liability in tort.

We therefore remand for Horse & Hunt to proceed on its contribution claim against Bix to adjudicate whether Bix also sold the defective parsley. After adjudication on the issue of whether Bix is also strictly liable, Horse & Hunt can pursue an indemnity claim against the Mexican manufacturer, Grupo Pas, or move for reallocation of the 100% causal fault of Grupo Pas among the three passive sellers. See Minn.Stat. § 604.02, subd. 8 (2000) (providing that in claim arising from manufacturing or sale of product, uncol-lectible amounts shall be reallocated among all other persons in chain of manufacture and distribution).

After reallocation, Horse & Hunt may have a contribution claim against the other passive sellers for the reallocated fault of the manufacturer, Grupo Pas. This is consistent with equitable principles of contribution dictating that “persons. under a common burden share that burden equitably.” Spitzack v. Schumacher, 308 Minn. 143, 145, 241 N.W.2d 641, 648.(1976). By funding the arbitration awards, Horse & Hunt may have paid more than its fair share of this common liability. See City of Willmar, 512 N.W.2d at 874.

DECISION

The district court erred in dismissing Bix through summary judgment under the seller’s-exception statute. But the district court did, not err in denying Horse & Hunt’s motion for a new trial and JNOV. We remand for further proceedings against Bix. ■

Affirmed in part, reversed in part, and remanded.

      . Bix also moved for summary judgment on the negligence and warranty claims, and Horse & Hunt does not challenge the district court's grant of judgment on these claims.

      . In the jury verdict, the jury apportioned fault among Horse & Hunt (8%), Sunridge Farms (27%), and Grupo Pas (65%). The district court found that this apportionment of fault was inconsistent with the other jury verdict answers and the apportionment should be given no effect, and the record supports that finding. The jury specifically found Sun-ridge Farms was not negligent in manufacturing the parsley and the jury was not asked whether Sunridge Farms was negligent in selling the parsley. The jury also found that Horse & Hunt was not negligent with respect to the use of the parsley.


author: HARTEN, Judge.

text:
    In re ESTATE OF James A. PALMER, Deceased.
    No. C7-02-182.
    Court of Appeals of Minnesota.
    June 18, 2002.

      Robert A. McLeod, McLeod & Troy, P.A., St. Paul, MN, for appellant Marie C. Palmer.
    Richard S. Eskola, Moore, Halsey & Eskola, L.L.C., Fridley, MN, for respondent Michael J: Smith.
    Considered and decided by WILLIS, Presiding Judge, HARTEN, Judge, and HUSPENI, Judge.

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

   OPINION

HARTEN, Judge.

An intestate decedent died owning -a one-half interest in a homestead. Appellant, his wife, contended- that, because there were no children of the marriage, she was entitled to take the decedent’s interest in fee simple. Respondent, claiming to be the decedent’s son, petitioned for summary assignment of the remainder interest in the homestead subject to a life estate in appellant. The district court found that clear and convincing evidence established the decedent’s relationship as father of respondent and granted the petition. Appellant challenges that decision, arguing that the statute of limitations imposed by the Minnesota Parentage Act precludes respondent from establishing a parent-child relationship with the decedent. Because we hold that the relationship may be established by clear and convincing evidence apart from the Parentage Act and its time limitation, we affirm.

FACTS

Appellant Marie Palmer married James Palmer in 1948. They had no children, but in 1957, Palmer and Beverly Smith had a son, respondent Michael Smith. In 1959, pursuant to the law then in effect, Palmer pleaded guilty to the felony of illegitimacy with respect to respondent.- Respondent’s birth certificate was altered to list Palmer as his father with a handwritten annotation, “adjudication of paternity report.”

During respondent’s childhood, Palmer visited respondent two or three times a week at Smith’s home, but they never visited at appellant’s home. Respondent always addressed Palmer as Dad; Palmer referred to respondent as his son. Respondent received many gifts from Palmer; they hunted, golfed, and took trips to a lake cabin together. Photographs show that Palmer participated in family outings, graduations, and other events with respondent. Palmer attended respondent’s wedding as father of the groom and remained close to Smith until her death in 1993.

Palmer died intestate in 1999, leaving a one-half interest in a homestead. Appellant claimed that interest pursuant to Minn.Stat. § 524.2-402(a)(l) (1998) (providing that, when there is no surviving descendant, the homestead descends to the spouse). Respondent petitioned the district court for summary assignment of Palmer’s interest alleging that, as Palmer’s son, he was entitled to a remainder interest in the homestead pursuant to Minn. Stat. § 524.2^02(a)(2) (1998) (providing that homestead passes to a .surviving descendant after the natural life of the spouse). Appellant opposed that action on the ground that Minn.Stat. § 524.2-114(2) (2000) requires a parent-child . relationship to be established under the Parentage Act, Minn.Stat. §§ 257.51 and 257.74, and respondent, born in 1957, cannot meet this requirement because Minn.Stat. § 257.58 (2000) precludes actions brought more than one year after a child reaches.the age of majority. The district court ruled for respondent and this appeal followed.

ISSUE

Can clear and convincing evidence establish a parent arid child relationship under Minn.Stat. § 524.2-114(2) for the purposes of intestate succession notwithstanding any time limitation imposed by the Parentage Act?

ANALYSIS

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

Minn.Stat. § 524.2-114(2) provides that, for purposes- of intestate succession,

a person is the child of the person’s parents regardless of the marital status of the parents and the parent and child relationship may be established under the Parentage Act, sections 257.51 and 257.74.

(emphasis. added). Respondent, however, cannot now establish his relationship with Palmer under the Parentage Act because of the statute of'limitations. Appellant argues that, absent a relationship established under the Parentage Act, respondent cannot inherit.-- . •

To make this argument, appellant construes “may” in Minn.Stat. § 524.2-114(2) as-“must.” This construction disregards Minn.Stat. § 645.44, subd. 15 (2000), providing that “[m]ay is permissive.” Minn. Stat. § 524.1-302 (2000) indicates that the probate court “has jurisdiction over all subject matter relating to estates of decedents including construction of wills and determination of heirs and successors of decedents,” The probate court’s jurisdiction, over the determination of heirs and successors is not limited by the Parentage Act.

’The interrelátionship between the intestate succession provision of the Probate Code and the Parentage Act is an issue of first impression in Minnesota, but the New Jersey Supreme Court has addressed it. Wingate v. Ryan, 149 N.J. 227, 693 A.2d 457 (1997), also concerned a putative heir’s-attempt to establish paternity in a probate action after the time limit for establishing paternity under the parentage act had expired. The New Jersey Probate Code, like Minn.Stat; § 524.2-114(2), provided that “the parent and child relationship [of a decedent and a putative heir] may. be established as.provided by the ‘New Jersey Parenting Act.’ ” Id. at 461 (emphasis added). Wingate concluded that the time limitation of the Parentage Act (in New Jersey, 23 years after birth) did not bar claims under the Probate Code and discussed the relationship between them.

' [T]he Parentage Act and the Probate Code are independent' statutes designed to address different primary rights. The purpose of the Parentage Act is to establish ‘the legal relationship ... be-
tween a child and the child’s natural or adoptive parents, incident to which the law confers or imposes privileges, rights, duties and obligations. Child support is the major concern under the Parentage Act. The purpose of the Probate Code, on the other hand, is to determine the devolution of a decedent’s real and personal property. The different purposes the two statutes serve, help to explain why the Legislature contemplated different 'periods of limitations for filing claims under those statutes.
* * * *
In contrast to children who file support claims, which accrue on the date of birth, potential heirs have no right to share in an estate until the death of the decedent. * * * [CJlaims under the Probate Code and the Parentage Act are subject to independent limitations periods. To hold otherwise would grant heirship immunity to parents of children who are born out of wedlock and do not establish parentage before reaching age twenty-three. That would terminate many claims before they accrue.

Id. at 468-64 (citations omitted). We find the reasoning of the New Jersey Supreme Court persuasive. Accordingly, we hold that, for the purpose of intestate succession, a parent-child relationship may be established by clear and convincing evidence regardless of the time limitation imposed by the Parentage Act.

Appellant claims Wingate is contrary to Minnesota policy as set forth in Clay v. Clay, 397 N.W.2d 571, 577 (Minn-App. 1986) (holding that the statute of limitations in the Parentage Act supercedes the statute of limitations for setting aside a judgment obtained by fraudulent misrepresentation). But Clay is not relevant here; it does not address the interrelationship between the Parentage Act and the Probate Code.

DECISION

For purposes of intestate succession, a parent-child relationship may be established by clear and convincing evidence regardless of the time limitation imposed by the Parentage Act. Respondent, having established his parent-child relationship to Palmer by clear and convincing evidence, is entitled to inherit as his descendent.

Affirmed.

      . The facts are taken from the Agreement as to the Record drawn up by the parties pursuant to Minn. R. Civ.App. P. 110.04.

      . Decedent and his late brother owned the homestead; the other one-half interest now belongs to decedent's brother’s wife.

      . The parties raised in district court the issue of whether Palmer’s 1959 guilty plea to the charge of illegitimacy established his paternity for the purposes of section 524.2-114(2) of the Uniform Probate Act. The district court determined that the plea did not establish paternity. Because respondent did not file a notice of review of this determination, we do not address it.

      . ' Appellant also relies on Witso v. Overby, 627 N.W.2d 63 (Minn.2001) to argue that the Parentage Act is the exclusive means of establishing paternity. Her reliance is misplaced. Witso concerns a father's standing to bring an action to establish paternity, not the interrelationship between the Probate Code and the Parentage Act.


author: STONEBURNER, Judge.

text:
    Steven BOLINGER, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C9-01-2134.
    Court of Appeals of Minnesota.
    June 18, 2002.

      John M. Stuart, Minnesota Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, Mathew T. Torgerson, Certified Student Attorney, St. Paul, and Craig S. Nelson, Freeborn County Attorney, Albert Lea, for respondent.
    Considered and decided by RANDALL, Presiding Judge, STONEBURNER, Judge, and HUSPENI, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellant contests an order denying his postconviction petition for relief on the grounds that his plea to controlled-substance crime in the second degree was not knowingly and voluntarily made, was inaccurate, and lacked the required factual basis because appellant was questioned about a different offense at the plea hearing. We reverse and remand.

FACTS

In June 1999 appellant Steven Douglas Bolinger made two controlled-substance sales to-an undercover police officer. On June 1, 1999, appellant allegedly sold four “ten-strips” of lysergic acid diethylamide (LSD) to an undercover officer and gave a fifth “ten-strip” to the officer for free. This sale occurred in front of a bar. On June 21, 1999, appellant sold the undercover officer five more “ten-strips” of LSD in a parking lot by an apartment complex. Both sales were tape-recorded.

The state charged appellant with the following crimes:

Count 1: Controlled-substance crime, 2nd Degree * * *
In Violation Of: 152.022 Subd. 1(3), Subd. 3(a) * * *
The defendant, in Freeborn County, did on 6/1/99 unlawfully sell one or more mixtures containing an hallucinogen equaling 50 or more dosage units.
Count 2: Controlled-substance crime, 2nd Degree * * *
In Violation Of: 152.022 Subd. 1(3), Subd. 3(a) * * *
The defendant, in Freeborn County, did on 6/21/99 unlawfully sell one or more mixtures containing an hallucinogen equaling 50 or more dosage units.

The complaint was amended 12 days later to add facts to the probable-cause portion of the complaint. The first amended complaint continued to charge the June 1 sale as Count 1 and the June 21 sale as Count 2. Approximately two months later the state again amended the complaint. The second amended complaint charges the June 1 sale as a third-degree controlled-substance crime because the Bureau of Criminal Apprehension (BCA) determined that the actual quantity of LSD appellant sold on June 1 was only 37 dosage units. In the second amended complaint, the June 1 third-degree sale is the subject of Count 2 and the June 21 second-degree sale is the subject of Count 1.

On May 8, 2000, appellant filed a rule 15 petition in which the plea agreement is stated as: “Plea to Count 1 & Dismiss Count 2. Cap on jail time of presumptive sentence. No argument for upward departure.” The rule 15 petition reflects that appellant was told that the maximum penalty that could be imposed was “25 years $500,000 fine,” which is the penalty for a second-degree controlled-substance crime.

At the plea hearing, the district court identified the charge appellant had agreed to plead to as having occurred “on June 1, 1999 ⅜ * * sale of LSD, 2nd degree * ⅜ *. That carries with it the maximum penalty of * * * 25 years imprisonment and/or a $500,000 fine.” After preliminary questions to establish that appellant had discussed the plea with counsel and knew the rights he was waiving by pleading guilty, the district court asked defense counsel to question appellant to “lay the basis for the elements of this charge:”

Defense counsel, without objection from the prosecutor or correction by the court, proceeded to question appellant about the June 1, 1999 incident. Appellant testified that he was at the Palace Bar in Albert Lea on that date and sold drugs. Appellant was asked:

Q. And the BCA did an analysis on those drugs and it turned out to be at least 50 dosage units of LSD in a packet?
A. Yes.
Q. You are not disputing those results, that evidence at all?
A. No.

At the conclusion of defense counsel’s questioning, the district court asked the prosecutor if he wanted to establish anything else for the plea and the prosecutor responded, “No, Your Honor, just that the — specifically the June 1 incident involved 53 dosage units according to the BCA report.” Appellant was not asked about this statement, but defense counsel agreed with the statement on the record despite the fact that it is undisputed that the June 1, 1999, incident at the Palace Bar involved the sale of only 37 dosage units of LSD. The district court accepted the plea and granted the prosecutor’s motion to dismiss “Count 2.”

Despite the fact that the factual basis established at the plea hearing identified the sale as occurring on June 1 at the Palace Bar, the pre-sentence investigation report describes the conviction as the offense that occurred on June 21, 1999, in the parking lot of the Chánnelview apartments in Albert Lea. Defendant was sentenced to 64 months for controlled-substance crime in the second degree.

More than a year later, appellant moved for a modification of his sentence, arguing that he pleaded to the third-degree controlled-substance charge and should not have been convicted and sentenced for the second-degree controlled-substance offense. The district court treated the motion as a motion for postconviction relief and granted a hearing.

At the hearing, appellant'argued that he never intended to plead to the second-degree controlled-substance crime and was under the impression that he was pleading to the lower charge. Appellant argued that he agreed to plead to Count 1, believing it .to be the June 1 sale that was reduced to a lesser charge than the June 21 sale. The state argued that appellant, in his written plea petition, agreed to plead to “Count 2” and that on the record, defense counsel stipulated that appellant sold 58 dosage units. The postconviction court denied appellant’s motion. The court stated:

Now, it could be that I misread it and went to June 1 instead of June 21. However, after I said that it was a sale of LSD 2nd degree 152.022 subdivision 1(3), subdivision 3(a), it carries with [it] a maximum penalty of 25 years imprisonment and/or a $500,000 fine, none of that refers to count number 2, none whatsoever. If there was a mistake on the date, it may have been the court’s error in saying June 1, but ⅜ * * there is no question in my mind that at the time you offered the plea * * * it was all to Count 1 and everything that refers everywhere else refers to basically the fact that you are pleading guilty to Count 1.
[Your attorney] went through with all the factors that you understood what was going on and who you sold it to and so forth and he * * ⅞ talked about the plea to Count 1 and not to count 2 * * *. So I have to at this point in time deny your request.
[T]here may have been that error as far as the date, but everything else is just overwhelmingly supporting the position that you pled guilty to Count 1.

Appellant then petitioned for postconviction relief, arguing that his plea was not knowingly and voluntarily entered and again requested that his conviction be treated as a third-degree controlled-substance crime conviction and his sentence amended accordingly. The court denied the petition without a hearing, concluding that appellant was not entitled to relief. This appeal followed.

ISSUES

I. Did the postconviction court abuse its discretion by denying appellant’s petition for postconviction relief without giving him the opportunity to withdraw his plea where the factual basis for the plea described the events related to a separate, third-degree controlled-substance offense that occurred on a different date, at a different location, and involved a different amount of drugs sold from the crime of which appellant was convicted?

II. Did the postconviction court abuse its discretion by denying appellant’s request to reduce his sentence to reflect a third-degree controlled substance charge?

III. Was appellant’s petition for post-conviction relief untimely?

ANALYSIS

This court reviews the decisions of the postconviction court under an abuse-of-discretion standard. State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993). “On appeal, the scope of our review is limited to the question of whether there is sufficient evidence to sustain the findings of the postconviction court.” State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994).

Although the specific relief appellant requested in his pro se petition for postcon-viction relief was an amended sentence, he argues that the circumstances entitle him to withdraw the plea. Under these facts, it is appropriate to review the petition as a petition to withdraw the plea of guilty.

A reviewing court will .reverse the district court’s determination of whether to permit -withdrawal of a guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn.1998). There is no absolute right to withdraw a guilty plea after it is entered. Kim v. State, 434 N.W.2d 263, 266 (Minn.1989). But if a defendant demonstrates that “withdrawal is necessary to correct a manifest injustice,” the district court shall permit withdrawal after sentencing. Minn. R.Crim. P. 15.05, subd. 1. “Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent.” Perkins v. State, 559 N.W.2d 678, 688 (Minn.1997).

I.

Appellant argues that his plea was not accurate because he believed he was pleading to the events occurring on June 1, 1999, which, in fact, do not establish a second-degree controlled-substance offense despite the fact that he agreed .with leading questions at the plea hearing about the amount of drugs sold on that date. The accuracy requirement in pleading is meant to protect the defendant from pleading guilty to a charge more serious than he could be convicted of if the case went to trial. Ecker, 524 N.W.2d at 716. “A proper factual basis must be established for a guilty plea to be accurate.” Id. (citation omitted).

The state argues that, where the date is not an element of the crime, an inaccurate date does not invalidate an otherwise valid plea. But the statute and cases used to support this argument involve correct descriptions of the facts constituting the offense ascribed- to an inaccurate date. See Minn.Stat. § 628.15 (2000); see also State v. Fraser, 211 Minn. 421, 421-23, 152 N.W.2d 731, 731-32 (1967) (holding that defendant was not entitled to reversal on basis that complaint contained an allegedly erroneous date). Here, the court did not simply incorrectly state the date of the incident of the second-degree sale. Here, appellant was questioned about an entirely different incident to establish the factual basis for the plea.

The state cites State v. Warren for- the proposition that a court can rely exclusively on a sworn complaint to establish a factual basis for a guilty plea. See State v. Warren, 419 N.W.2d 795, 799 (Minn.1988). But. Warren “concerns use of a misdemeanor plea in computing a defendant’s criminal history score.” Id. at 797. And, in Warren, the supreme court specifically distinguishes the Warren analysis from withdrawal-of-plea analysis because

[t]he situation is not quite the same * * * when the defendant is not trying to set aside the prior conviction but is challenging the conviction collaterally, seeking only to prevent its use for enhancement purposes.

Id. at 798. The Warren holding, then, applies when the defendant is challenging the conviction only collaterally and to prevent its use for sentence enhancement and not for withdrawal-of-plea purposes.

Here, it is undisputed that the court, prosecutor, and defense counsel intended for appellant to plead guilty to the second-degree controlled substance charge and establish a factual basis by discussing the facts surrounding the June 21, 1999 sale. Instead, defense counsel questioned appellant about the June 1 sale, and both defense counsel and the prosecutor misstated the dosage units sold on that date. Appellant’s argument that he thought he was pleading to the lesser charge is plausible given the switch in numbering the counts in the second amended complaint and the questioning that occurred at the plea hearing.

“[The] sentencing judge has the primary responsibility for eliciting from defendant the testimony needed to establish a factual basis for the guilty plea.” Perkins, 559 N.W.2d at 689 (quotation omitted). But attorneys are officers of the court with a duty to act with due diligence and candor toward the court. Minn. R. Gen. Pract. 2.03(a); Minn. R. Prof. Conduct 1.3 and 3.3. Both attorneys asserted that appellant had sold more than 50 dosage units of LSD on June 1, 1999 — an assertion that is not in the complaint. We do not imply that the attorneys intentionally misled the court or appellant, but more careful attention to the record being made would have prevented this unfortunate error. The prosecutor and defense counsel share the court’s burden to reasonably ensure that pleas are accurately made on the record. The interests of justice are not served by requiring appellant to bear the consequences of the erroneous questioning in this case.

An erroneous factual basis was placed on the record that does not support appellant’s plea to the charge against him contained in Count 1 of the second amended complaint. We conclude that the postcon-viction court abused its discretion by not allowing appellant the opportunity to withdraw his plea and to stand trial on the charges against him.

II.

Because appellant provides no legal basis for modifying his sentence, we decline to address the issue. See State v. Fischer, 354 N.W.2d 29, 35 (Minn.App.1984) (declining to reach issue where argument is unsupported), review denied (Minn. Dec. 20, 1994).

III.

The state argues that the postcon-viction court did not abuse its discretion by denying appellant’s petition for postconviction relief because appellant’s petition was untimely. A delay in seeking relief is a relevant consideration in determining whether the court should grant relief. Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (holding that four-year delay in petitioning for postconviction relief weighed against appellant).

Appellant, in his initial petition to modify his sentence to reflect a third-degree controlled-substance conviction, used a withdrawal-of-plea analysis to support his argument that he was sentenced for the wrong charge. The state should have been on notice that allowing appellant to withdraw his plea was a potential outcome of the errors that occurred with regard to the plea. The delay, then, is from the date of sentencing to the date of appellant’s petition, approximately one year and two months.

Even if we considered the petition untimely, we must further consider what prejudice the granting of a petition to withdraw a guilty plea would cause the prosecution “as a result of defendant’s untimely request to stand trial.” State v. Lopez, 379 N.W.2d 633, 637 (Minn.App.1986) (emphasis omitted) (quoting United States v. Russell, 686 F.2d 35, 39 (D.C.Cir.1982)), review denied (Minn. Feb. 14, 1986). Here, the state has not alleged that any prejudice would occur by granting a petition to withdraw, and, in the interests of justice, we decline to hold that appeL lant’s petition is barred as untimely.

DECISION

The postconviction court abused its. discretion by denying appellant’s petition for postconviction relief without giving appellant an opportunity to withdraw his plea because appellant’s plea to a second-degree controlled-substance crime lacked a proper factual basis and was inaccurate. The court did not abuse its discretion by denying appellant’s petition to modify his sentence.

Reversed and remanded.

      . A "ten-strip” is a term used to describe a quantity of LSD that commonly contains ten dosage units. The actual dosage units on these “ten-strips” are not easily counted.

      . It appears that the district court was unaware that defense counsel had questioned appellant about Count 2, the June 1 incident at the Palace Bar, rather than Count 1, the June 21 incident in the parking lot.

      . Use of the complaint alone is also problematic because the amended complaint clearly states that the June 1 incident was a sale of 37 dosage units of LSD', which led to a third-degree controlled-substance charge.


author: PORITSKY, Judge.

text:
    Doug KRAMER, et al., Petitioners, Respondents, v. OTTER TAIL COUNTY BOARD OF COMMISSIONERS, Appellant.
    No. C5-01-2082.
    Court of Appeals of Minnesota.
    June 18, 2002.

      Dennis W. Hagstrom, Svingen, Athens, Russell, Hagstrom, Haugrud, Karkela. & Cline, P.L.L.P., Fergus Falls, 'MN, for respondents.
    Stephen G. Andersen, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, WILLIS, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

The district court granted respondents’ petition for a writ of mandamus, compelling appellant Otter Tail County (the county) to approve a preliminary plat for a new subdivision. On appeal, the county argues: (1) because respondents’ sole remedy was by a writ of certiorari to the court of appeals, the district court did not have jurisdiction to issue a writ of mandamus; and (2) the 60-day deadline imposed by Minn.Stat. § 15.99, subd. 2, was extended by operation of Minn.Stat. § 116D.04, subd. 10 (2000), which provides for a 30-day period in which to seek judicial review of an agency decision involving environmental-assessment worksheets (EAW’s) and environmental-impact statements (EIS’s).

FACTS

In November 1998, respondents filed an application for a conditional-use permit (CUP) and requested preliminary approval of the plat for a shorefront resort development. Certain individuals filed a petition with the county, asking for an EAW to determine if an EIS was necessary. After examining the completed EAW, on May 17, 2000, the county planning commission found that an EIS was not necessary, and on May 23, 2000 the county board declared that an EIS was not needed. -The county planning commission met on August 9, 2000 and recommended denying respondent’s plat. The county board adopted the recommendation on August 15, 2000. Respondents sought a writ of mandamus in district court, arguing that because the county did not to approve or deny respondents’ application within 60 days after the EIS was determined unnecessary, the application was granted by operation of law. The district court ruled that respondents’ application was approved because the county failed to deny it within the time limit and issued a writ óf mandamus. The county appealed to this court.

ISSUES

I. Did the district court have jurisdiction to issue a writ of mandamus?

IÍ. Did the 30-day time period provided by Minn.Stat. § 116D.04 to appeal the county’s decision to deny an EIS run concurrently with the 60-day time limit for the county to take action under Minn.Stat. § 15.99 (2000)?

ANALYSIS

I.

We first address the county’s second argument: The county argues that its failure to act on respondents’ request within 60 days after the county board declared that an EIS was not necessary did not amount to an approval of respondents’ application. Although the county raises this as its second argument, we address it first because our decision on this issue determines the county’s first argument. The county contends that the 60-day time period did not start to run until 30 days'after the board determined an EIS was not necessary.

An agency must approve or deny a request relating to zoning within 60 days, or it is approved by default. Minn.Stat. § 15.99 subd. 2 (2000). But the time limit is extended “if a state statute * * * requires a process to occur before the agency acts on the request.” Id. at subd. 3(d). In such a case, the deadline for the agency to act is extended to 60 days after completion of the last process required by the statute. Here, the county board ordered an EAW. An EAW is prepared to determine if an EIS is necessary because there may be potential for significant environmental effects if the permit, is granted. Minn.Stat. § 116D.04, subd. 2a (2000).

' On May 23, 2000, the county’ board declared’ that an EIS was not necessary. The county cites Minn.Stat. § 116D.04, subd. 10, which grants the 30-day period for seeking judicial review of that declaration, and argues that the 60-day period allowed by section 15.99 did not start until the 30-day period was over. Section 15.99, subdi 3(d), reads:. '

The time limit in subdivision 21s extended if a state statute '* * * requires a process to occur before the agency acts on the request, and the time periods prescribed in the state statute * * * make it impossible to act on the request within 60 days. In cases described in this paragraph, the deadline, is extended to 60 days after completion of the last process required in the applicable statute[.]

(Emphasis added.)

Specifically the county argues that the 30-day period for seeking judicial review of its May 23, 2000, declaration that an EIS was not necessary is a “process” within the meaning of section 15.99, subd. 3(d). We disagree. Section 116D.04, subd. 10, does not require a judicial review; it allows such a review. Moreover, there is nothing in the record to suggest that even if the county waited the - 30 days, it would be impossible to act on respondents’ request within 60 days. In fact, initially the county planning commission scheduled a final hearing on respondents’ application for July 19, but, as the trial court found,

[f|or reasons that are not set forth by the parties, the * * * Planning Commission chose not to meet on July 19, 2000, and the final hearing relative to [respondent’s] application occurred on August 9, .2000,

which was beyond the 60-day limit. Finally, as respondents argue, under section 15.99, subd. 3(f), the county could have extended the 60-day limit by merely giving notice to respondents. See American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 314 (Minn.2001) (“The statute does not limit the application of subdivision 3(f) to extenuating circumstances — it merely requires, that the reasons [for extending the 60-day limit] be stated.”)

Accordingly, we conclude that (1) the 30-day appeal period granted by section 116D.04, subd. 10, runs concurrently with the 60-day time limit granted by section 15.99, subd. 2, and (2) therefore the county was mandated to grant respondents’ application for approval of the preliminary plat.

II.

Next we address the county’s argument that the district court was without jurisdiction' to issue a writ of mandamus. Jurisdiction is a legal question, which this court reviews de novo. Frost-Benco Elec. Ass’n v. MN Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

Mandamus is an extraordinary legal remedy that courts issue only when the petitioner shows that there is “a clear and present official duty to perform a certain act.” McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989); Minn.Stat. §-586.01 (2000) (“The writ of mandamus may be issued to any * * * board * ⅜ * to compel the performance of an act which the law specifically enjoins ⅜ * *.”) To be entitled to mandamus relief ■ the petitioner must show three elements: (1) the failure of an official to perform a duty clearly imposed by law; (2) a public wrong specifically injurious to petitioner; and (3) no other adequate remedy. Demolition Landfill Services, L.L.C. v. City of Duluth, 609 N.W.2d 278, 280 (Minn.App.2000), review denied (Minn. July 25, 2000).

1. As we have concluded, the county was required to approve or deny respondents’ application within 60 days. It did not do so, and respondents’ application was approved by operation of law. The county’s refusal to approve the plat was therefore a failure to perform an official duty clearly imposed by law.

2. The county’s action injured respondents because they, were unable to develop their resort.

3. It is not enough that the county failed to act and that respondents were injured; respondents must also show that they have . no other “plain, speedy, and adequate remedy in the ordinary course of law.” Minn.Stat. § 586.02 (2000). The county contends that a writ of certiorari to this court is the appropriate procedure to review the county’s denial of respondents’ application. Because there was an adequate alternative remedy, the county argues, mandamus is not available. But because a complete record must be provided, a writ of certiorari to this court is more expensive, more time-consuming, and more complicated than a petition to the district court for a writ of mandamus. See Dozier v. Conrad, 3 Neb.App. 735, 532 N.W.2d 42, 48 (1995) (citing 52 Am.Jur.2d Mandamus § 49 at 374 (1970)) (“Furthermore, the remedy which will preclude mandamus must be equally as convenient, complete, beneficial, an¡d effective as would be mandamus, and be sufficiently speedy to prevent material injury.”) For these reasons, we conclude that a writ of certiorari is not an adequate remedy and, therefore, respondents were entitled to a writ of mandamus. See Demolition, 609 N.W.2d at 280; see also American Tower, L.P. v. City of Grant, 621 N.W.2d 37, 41-3 (Minn.App.2000) (writ of mandamus requiring city to issue CUP proper after city failed to act in time), aff'd, 636 N.W.2d 309 (Minn.2001).

DECISION

The 30-day appeal period granted by Minn.Stat. § 116D.04, subd. 10, in which to seek judicial review of a decision concerning the need for an environmental impact statement, runs concurrently with the 60-day period granted, by MinmStat. § 15.99, subd. 2, within which an agency must deny a request relating to zoning. Because the county was required by law to grant respondents’ request for approval of a preliminary plat, a writ of certiorari was not an adequate remedy, and therefore the district court properly granted . respondents a writ of mandamus.

Affirmed.

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