text:
    HANDICRAFT BLOCK LIMITED PARTNERSHIP, petitioner, Appellant, v. CITY OF MINNEAPOLIS, Respondent.
    No. C2-98-2237.
    Supreme Court of Minnesota.
    June 1, 2000.

      Larkin, Hoffman, Daly & Lindgren, Ltd., Gary A. Van Cleve, Bloomington, for appellant.
    Jay H. Heffern, Minneapolis City Attorney, Carol Lansing, William C. Dunning, Assistant Minneapolis City Attorneys, Minneapolis, for respondent.
   OPINION

GILBERT, Justice.

This case arises out of appellant’s judicial challenge to the respondent City of Minneapolis’ (City) heritage preservation designation of two of appellant’s buildings. Appellant, Handicraft Block Limited Partnership (Handicraft), owns the Handicraft Guild Building and an adjacent building (Buildings) located in downtown Minneapolis. The City designated the exteriors of both Buildings for heritage preservation. Handicraft argues that the designation was arbitrary. Handicraft filed a writ of certiorari in the court of appeals seeking review of the designation pursuant to Minn.Stat. § 606.01 (1998) and Minn. R. Civ.App. P. 115. The court of appeals analyzed the factors we delineated in Minnesota Center for Environmental Advocacy v. Metropolitan Council, 587 N.W.2d 838 (Minn.1999) (MCEA). See Handicraft Block Ltd. Partnership v. City of Minneapolis, 598 N.W.2d 420, 422-24 (Minn.App.1999). Under MCEA, the court of appeals determined that the City’s decision was not quasi-judicial ■ but rather quasi-legislative, and because quasi-legislative acts are not reviewable by writ of certiorari, the court discharged the writ, citing a lack of jurisdiction. See Handicraft, 598 N.W.2d at 424. We granted review of the court of appeals’ decision and must now decide only the narrow question of whether the City’s decision to designate the Buildings is quasi-judicial and therefore reviewable by writ of certiorari. We reverse and remand.

The Handicraft Guild Building was completed in 1907. It is a three-story brick building, built in the Georgian Revival style. It was designed by William Chan-ning Whitney, an architect credited with introducing Georgian Revival style to Minneapolis. It was built for and occupied from 1907 to 1918 by the Handicraft Guild, an arts organization during the brief period when the Arts and Crafts movement flourished in Minnesota.

Handicraft owns both the Handicraft Guild Building, 89-91 South 10th Street, and an adjacent building at 1004 Marquette Avenue. The entire block on which the Buildings sit has been identified for redevelopment in the supplemental statement to the City’s current comprehensive plan; the “Downtown 2010;” and in its proposed new comprehensive plan, “The Minneapolis Plan.” In addition, the Buildings are not included on a map in the “Downtown 2010” plan of 35 buildings in downtown Minneapolis considered historic buildings. Nor are they listed on the Heritage Preservation Commission’s (HPC) “800 List,” a list compiled by the HPC of about 800 structures/sites potentially eligible for heritage designation. The City initially investigated the heritage preservation designation of the Handicraft Building in 1994 when it commissioned the designation study that it eventually relied upon in 1998. The appellant objected to the designation and heard nothing from the City until 1998. In accordance with the comprehensive plan’s vision for redevelopment, Handicraft entered into a $9,000,000 option .contract in 1998 to sell the Buildings to Ryan Properties for development of a luxury hotel. Ryan Properties’ inquiry about the historical attributes of the property triggered the City’s renewed interest in pursuing heritage designation.

By a letter dated June 25, 1998, the City gave Handicraft written notice of its intention to seek heritage designation for the Handicraft Guild Building. The first pub-lie hearing was conducted on July 14, 1998, by the City’s HPC. At that time, Handicraft learned that 1004 Marquette was also being considered for designation. Because no formal notice of such a designation had been given to Handicraft, consideration of 1004 Marquette was postponed until the next HPC meeting, which occurred on August 11, 1998. The exterior of the Handicraft building was recommended for designation at the July 14, 1998, meeting with a vote by a non-quorum, later ratified by a quorum of the HPC. On August. 11, 1998, the HPC recommended designation of the exterior of 1004 Marquette, again without a quorum present but later ratified by a quorum.

The matter was then forwarded to the city planning commission, which conducted a hearing on August 24, 1998, and also recommended designation of the exteriors of both Buildings. The zoning and planning commission of the city council next considered the designation on September 22, 1998, at a public hearing. It, too, voted to recommend designation. The full city council designated the exterior of the Buildings on October 2, 1998. At each stage of these proceedings, Handicraft was represented by counsel who presented written and oral evidence opposing designation. Testimony was presented both for and against designation. The mayor approved the designation on October .8, 1998.

Once the Buildings are designated, the HPC has the responsibility to review city permits for all of the following: remodeling, repairing, moving, or destroying a building in whole or in part which would change the exterior. See Minneapolis, Minn., Code of Ordinances §§ 34.60(a)-(g), 34.70 (1999). An appraiser hired by Handicraft estimated that the market value of the property put to its highest and best use, which it found to be razing the existing buildings and redeveloping “with a commercial use such as an office building or hotel,” would be between $3,700,000 and $5,000,000. With designation, the properties are worth between- $600,000 and $1,000,000.

Handicraft appealed the designation by writ of certiorari to the court of appeals pursuant to Minn.Stat. § 606.01 and Minn. R. Civ.App. P. 115. The writ was issued on December 4, 1998. On December 11, 1998, the court of appeals ordered informal memoranda regarding the jurisdiction of the court. The court of appeals noted that it only had jurisdiction by writ of certiorari to review quasi-judicial, not quasi-legislative, proceedings. Both - parties argued that the decision was quasi-judicial in their submitted informal memoranda. After submission, we decided MCEA, 587 N.W.2d 838. The court of appeals issued an order deferring decision on the jurisdiction question and requestéd the parties to reconsider the issue in light of our MCEA opinion. See In re Handicraft Guild Building, No. C2-99-2237 (Minn.App. Feb. 9, 1999). The City then reversed its position, arguing-that its decision was quasi-legislative, not quasi-judicial. At the court of appeals, the City conceded that its proceedings resulted in a binding decision regarding a disputed claim, the third factor in MCEA. On August 17, 1999, the court of appeals filed a decision holding that designation of the Buildings involved quasi-legislative proceedings and therefore, discharged the writ. See Handicraft, 598 N.W.2d at 424. We granted Handicraft’s petition for further review.

We review de novo the issue of jurisdiction without deference to the ruling of the lower court. See MCEA, 587 N.W.2d at 842. “Certiorari is an ‘extraordinary remedy’ only available to review judicial or quasi-judicial proceedings and actions.” Id. (citing Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn.1981)). Legislative actions may not be reviewed by certiorari. See id. Thus, whether the action of the City is reviewable by certiorari ultimately is dependent upon whether the City acted in a quasi-legislative or in a quasi-judicial capacity when it designated the Buildings for heritage preservation.

We .have recently articulated the factors to be used in distinguishing between quasi-judicial and quasi-legislative proceedings. See MCEA, 587 N.W.2d at 842; Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275, 279 (Minn.1996). In Meath, we held that “quasi-judicial conduct is marked by an investigation into a disputed claim and a decision binding on the parties.” 550 N.W.2d at 279. In MCEA, we added a third factor, proposed by the concurrence in Meath, to the framework for determining if proceedings are quasi-judicial or quasi-legislative. See 587 N.W.2d at 842. “[T]he three indicia of quasi-judicial actions can be summarized as follows: (1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.” Id.

I.

The first MCEA factor requires us to consider whether the respondent “investigated and weighed evidentiary facts relevant to a disputed claim” in designating the Buildings. Id. Both quasi-judicial and quasi-legislative proceedings have as “the ultimate goal * * * to reach an informed decision on relevant and sometimes conflicting facts.” Id. However, quasi-judicial proceedings involve “determining facts for the purpose of reaching a legal conclusion in resolution of adversarial claims.” Id. at 843. In reaching a determination on this factor it is useful to compare the process involved in MCEA, where we concluded that this factor had not been met, with the process involved here.

In MCEA, the government body making the decision we were assessing was the Metropolitan Council, a political subdivision of the State of Minnesota and the designated metropolitan planning organization for the Twin Cities metropolitan area. See id. at 839 (citing 23 U.S.C. § 134(b) (1994)). The Metropolitan Council was involved in a complex planning process concerning construction of a proposed four-lane bridge across the St. Croix River from Stillwater, Minnesota to St. Joseph/Houlton, Wisconsin, which would include expansion of Minnesota Trunk Highway 36. See MCEA, 587 N.W.2d at 841. No particular parties were given notice or the right to participate in a public hearing regarding the proposed project because there was no public hearing required under the relevant legislation. See id. at 839 nn. 2-3. Instead, the public generally was given the right to “comment” on the long-range plans — the Metropolitan Development Guide/Blueprint (Blueprint) and the 1996 Transportation Policy Plan (TPP) — and the plan that contained the specific proposed projects to meet those long-range plans, the Transportation' Improvement Plan (TIP). See id. at 839-41 nn. 2 & 4, (citing 23 U.S.C. §§ 134(g) and (h)(1) (1994)). We held that the process used by Metropolitan Council to gather information was vastly different from the judicial process involved in reaching a legal conclusion in resolution of adversarial claims. See id. at 842-43. Instead, we held that the proceedings were more typical of the legislative process than judicial proceedings. See id. at 842. Therefore, we did not characterize the process as quasi-judicial under the Meath in-dicia. See id. at 843.

Here, the designation proceedings are more typical of judicial proceedings than legislative proceedings because they involve investigating and determining facts for the purpose of reaching a legal conclusion regarding the disputed claim of whether this building is to be designated. They are akin to a hearing on a conditional use permit directed at a specific property and related to specific property rights. Although the proceedings differ from formal judicial proceedings, they are still quasi-judicial in nature.

In contrast to the proceedings in MCEA, Handicraft was a formally identified party to the proceedings. Notice was sent specifically to Handicraft regarding the possible designation of its property. Further, Handicraft was expressly invited to present evidence on its behalf at public hearings and was given a list of the designation factors, presumably so Handicraft could prepare arguments against designation, if it was opposed. Four separate public hearings were held. Handicraft attended each public hearing and was represented by counsel and submitted oral testimony and written evidence opposing the designation. These were adversarial proceedings. Evidence regarding the property and the designation factors was taken. Though no rebuttal evidence was necessarily required and testimony was not under oath, evidence was being offered both in support of and in opposition to the legal claim by the City to designate Handicraft’s properties for historic preservation. Although initiated by the City, the conduct of these proceedings was no different in format from that of typical conditional use permit or variance proceedings, which we have acknowledged are quasi-judicial proceedings. See, e.g., Honn, 313 N.W.2d at 416. Though they were not conducted as formally as a trial, we have not held that quasi-judicial proceedings must be. In Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn.1978), we acknowledged that “[t]he statements made at such a public hearing [for a conditional use permit], unlike a regular judicial proceeding, are not given under oath and are not limited by the traditional rules of evidence. They are usually broad expressions of opinion in favor or against the application.”

Finally, the designation determination of Handicraft’s properties involved a disputed claim. The City was not making a decision bearing on an open class of persons and properties. Rather, it directed its efforts to the particular interests of a specific property and property owner. The City identified one property/party (89-91 South 10th Street and 1004 Marquette Avenue/Handicraft) and then collected facts about that property from Handicraft and other interested members of the public to make the designation determination. Thére is a Significant difference between the opportunity given to the public at large in MCEA to comment on possible future highway development and the opportunity given to a specific property owner, targeted by the City, to be heard and present evidence regarding the immediate heritage preservation designation of a single property.

In this analysis, we must look to the proceedings as a whole. In doing so, we note that the City’s proceedings are in stark contrast to the Metropolitan Council’s broad policy and planning decision process in MCEA The City gathered, investigated and weighed relevant information and facts for the specific purpose of reaching a legal conclusion, designation with all of the attendant responsibilities and constraints, in resolution of a particular adversarial claim. This factor indicates that the proceedings were quasi-judicial.

II.

We must next determine whether respondent applied a prescribed standard to the facts presented in deciding to designate Handicraft’s Buildings. See MCEA, 587 N.W.2d at 843. In MCEA we considered whether legislation that required that projects selected for the TIP be “consistent with” the long-range plan embodied in the Blueprint and TPP provided prescribed standards. See id. We held that the “introductory goals” of the' Blueprint and “16 considerations” of the TPP were broad and diverse elements that were not intended to serve as a prescribed standard. See id. at 843-44. The TPP statute made it mandatory for the authorities only to “consider” the list of 16 factors in making the TPP, rather than. requiring them to find that one or more of the factors had been met. See id. at 843 & n. 7 (citing 23 U.S.C. 134(f) (1994 & Supp.1996)). Further, we found that the 16 TPP factors were “not necessarily consistent” with each other, which demonstrated the different policy choices that had to be incorporated into the TPP. Id. at 843. Finally, under federal law, to be “consistent with” required only “congruity” or “compatibility” rather than strict compliance. Id. at 844. Ultimately, this court held that the “non-specific nature” of the goals and considerations and the “flexible compliance” inherent in the use of the statutory language “consistent with” meant that the Metropolitan Council did not have a prescribed standard governing its TIP decision. Id.

In contrast to MCEA, the standards here are both specific and prescribed. Although the City describes the standards as “guidelines” and “considerations,” the City also indicated an intent that the guidelines control the designation decision by using mandatory language that not only dictated what should be considered but also was designed to control what could be designated. The designation factors are contained in the comprehensive plan, which states: “The current guidelines utilized by the Heritage Preservation Commission for review are: A. Primary Considerations. Structures, lands, areas or districts selected for heritage designation shall he of historic or aesthetic merit and shall satisfy at least one of the following general guidelines.” (Emphasis added).

We conclude that these guidelines, when applied to a specific property, establish specific criteria that curtail the discretion of the City when it chooses to designate that property. By using language that is mandatory and not permissive, the City circumscribed its ability to designate any building for heritage preservation that did not meet one of the four listed criteria: The mandatory language “shall satisfy” requires strict rather than flexible compliance with one of the four primary considerations.

Further, though the four primary considerations that must be satisfied are distinct, they are not inconsistent or lacking in specificity. The standards require an investigation of specific types of facts relating to a specific property that is selected’for heritage designation. In order for a building to be designated, it must either be associated with a significant historical trend or counter-trend, historic persons or events, distinctive architecture, or notable architects or craftsmen. The standards are not merely goals, they are specific criteria for the City to consider. They provide the framework for the facts the City investigates and findings the City makes regarding the property, its use, its history and its owners in order to justify designation. It is well within the province of a reviewing court to determine whether the evidence gathered to support one of these specific guidelines provides'a “substantial basis” for the challenged decision. Horn, 313 N.W.2d at 414 (holding that the “traditional standard of review” for certio-rari review of quasi-judicial decisions is “whether the evidence provides a substantial basis for the decision”). Finally, the specificity of such standards in curtailing the relevant inquiry with respect to a specific property is analogous to that of the standards governing the issuance of conditional use permits or variances, which we recognize as quasi-judicial proceedings. See, e.g., Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 462 (Minn.1994) (quoting the county ordinance that states in part that the use should not “be injurious to the use and enjoyment of other property in the immediate vicinity ⅜ ⅜ * nor substantially diminish and impair property values;” or “impede the normal and orderly development” of the area); VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 507 n. 3 (Minn.1983) ■ (quoting, ordinance that requires council to determine in part that proposed variance will not “endanger the public safety,” “in any other way impair health, safety, comfort, morals,” or “in any other respect be contrary to the intent of this Ordinance”).

Simply because the City retains some discretion over the initial determination of whether to even consider designation does not mean that a reviewing court cannot determine under these guidelines whether once that decision is made, the decision to designate was arbitrary and capricious. See VanLandschoot, 336 N.W.2d at 508 (holding that the general standard of review for quasi-judicial zoning matters is whether the action was arbitrary and capricious). The guidelines establish specific requirements, at least one of which must be satisfied in order to designate a property for heritage preservation. We conclude that this factor indicates that the proceedings were quasi-judicial.

III.

The third factor from MCEA is whether the City’s decision to designate Handicraft’s property “amounts to a binding decision that affected a disputed claim.” 587 N.W.2d at 844. The court of appeals did not inquire into this indicia because “[t]he city admits that its decision to designate the buildings for heritage preservation creates both rights and responsibilities for relator, and therefore concedes that this prong indicates the decision is quasi-judicial rather than quasi-legislative.” Handicraft, 598 N.W.2d at 423-24. Because of the City’s concession, Handicraft did not seek review of this issue, nor did the City in its response to Handicraft’s petition. See generally Minn. R. Civ.App. P. 117, subds. 3-4. Therefore, we decline to review the arguments made by the City with respect to this factor. We conclude that this factor indicates that the decision is quasi-judicial.

Looking at all of the factors together, we hold that the proceedings of the City in designating the Handicraft Buildings for heritage preservation were quasi-judicial. Therefore, the court of appeals has jurisdiction to review the proceedings by writ of certiorari.

Reversed and remanded.

      . The designation procedure is as follows: (1) HPC directs a study by the city planning department of the building to be designated; (2) the report is referred to the city planning commission for review and recommendation to the HPC; (3) HPC reviews the report of the city planning commission and then makes its recommendation to the city council; (4) if it is a proposal of designation, the HPC must send the proposal to the Minnesota Historical Society for review and comment in writing within 60 days; (5) the zoning and planning commission of the city council holds a public hearing, notice of which is sent by mail to the property owner and other nearby property owners and by publication to the public, and makes a recommendation; and (6) the city council, with the benefit of the recommendations of the HPC and other committees, may decide to designate the property by ordinance or resolution. See Minneapolis, Minn., Code of Ordinances (MCO) §§ 34.40(a)-(c), 34.50 (1999).

      . The enabling legislation for a municipality to establish commissions "to preserve and promote its historic resources” is Minn.Stat. § 471.193, subd. 2 (1998). The commission’s powers are limited to "those delegated or assigned by the ordinance establishing' the commission.” Minn.Stat. § 471.193, subd. 3 (1998). Minneápolis Code of Ordinances Chapter 34 establishes the HPC and outlines its duties. The HPC itself cannot designate buildings. Instead, MCO § 34.40 says that the HPC "shall recommend to the city council buildings * * ■* to be designated * * * for heritage preservation * * *.”

      . The standards are located in the City of Minneapolis Comprehensive Plan, "Plan for the 1980’s,” (which is currently in effect).
      A. Primary Considerations
      Structures, lands, areas or districts selected for heritage designation shall be of historic or aesthetic merit and shall satisfy at least one of the following general guidelines.
      1. Structures, lands, areas or districts considered for preservation shall exemplify the broad trends of cultural, political, economic or social history; however, they may also represent an unusual counter development to such broad trends.
      2. Structures, lands, areas or districts considered for preservation may be those associated with the lives of historic personages, with important events or with strong ethnic, community, or City identity.
      3. Structures, lands, areas or districts considered for preservation may display the distinguishing characteristics of an architectural type inherently valuable for study or method of construction,
      4. Structures, lands, areas or districts considered for preservation may be notable works of master builders, engineers, designers, artists, craftsmen or architects.
      B. Secondary Considerations
      In addition to the guidelines of primary consideration the following guidelines shall be considered.
      1. The setting of structures and areas shall be considered in light of appropriateness, visibility and accessibility. There shall be assurance that the structure or area shall not be hazardous to the health and safety of the community.
      2. The economic and physical soundness of a candidate for heritage preservation shall be appraised after discussion of the candidate’s significance.
      a. Economic Soundness
      (1) The expenses of restoration and continued maintenance shall be considered before designation.
      (2) Alternate reuses for structures shall be considered if the continuance of the present use is doubtful.
      (3) Reuses of designated structures or lands shall not destroy the integrity of the structure, land or area.
      b. Physical Soundness
      (1) Consideration shall be given to the maintained integrity of original design materials and workmanship of structures, lands, areas or districts.
      (2) Modifications needed to bring structures and areas in conformance with health and safety standards and with building codes and standards shall be considered.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    David A. TOMBERS, Respondent, v. CITY OF BROOKLYN CENTER, Relator, Department of Veterans Affairs, Respondent.
    No. C4-99-2055.
    Court of Appeals of Minnesota.
    May 23, 2000.

      Jill Eleanor Clark, Golden Valley, and William J. Mavity, Mavity & Associates, Minneapolis, for respondent David A. Tombers.
    Patricia Ytzen Beety, St. Paul, for relator.
    Mike Hatch, Attorney General, and Minnesota Department of Veterans Affairs, St. Paul, for respondent Commissioner of Veterans Affairs.
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and HUSPENI, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

The Commissioner of Veterans Affairs upheld the conclusion of an administrative law judge (ALJ) that respondent David A. Tombers, a military veteran who was employed by relator as a police officer, had been unlawfully removed from his employment when relator City of Brooklyn Center forced him on indéfinite leave without a hearing mandated by the Veterans Preference Act (VPA), Minn.Stat. § 197.46. The commissioner concluded that relator owed respondent back pay from the date of his forced separation until the Veterans Preference Board issued its decision. The commissioner also determined that relator was not permitted to offset wages earned, unemployment compensation, or Public Employees Retirement Association (PERA) benefits. We affirm as to respondent’s entitlement to payment of back wages, but reverse as to the failure to offset wages earned, and remand.

PACTS

Respondent David A. Tombers, an honorably discharged veteran, began working as a police officer for relator City of Brooklyn Center in 1991. In 1992, Tom-bers suffered an on-the-job injury. In 1994, Tombers was removed from patrol duty after his injury resulted in a degenerative bone condition that required hip-replacement surgery. In July 1995, Tom-bers returned to patrol duty after his personal physician indicated that he could perform his police-officer duties without restriction.

On June 2, 1998, Tombers had his annual check-up with his physician. He told his physician that he was experiencing hip pain arising from performing his everyday police-officer duties. His physician wrote a letter indicating that

[Tombers] has been able to return to work but with my reluctant consent and now it is obvious that he should not work as a police patrolman anymore. I believe he is disabled to work as a patrolman on account of his bilateral hip replacement arthroplasties.

On June 3,1998, Tombers presented this letter to his Police Chief, although Tom-bers felt that he was fully capable of performing all police officer duties. The Police Chief removed Tombers from duty immediately, ordered him to go home, and instructed him to use his paid vacation and sick time.

On July 2, 1998, the city issued a notice to Tombers that it was going to terminate his employment due to his inability to physically perform the duties of a police officer and notified him that he had a right to contest the action under the VPA. By this time Tombers had exhausted his paid vacation and sick time.

In August 1998, Tombers filed a petition with the Department of Veterans Affairs seeking a determination that he had been unlawfully removed. Tombers subsequently filed a motion for summary disposition. In August 1999, an ALJ granted Tombers’ motion and determined that the city had violated the VPA by removing Tombers on June 3, 1998, without first notifying him of his right to a VPA hearing. The Commissioner of Veterans Affairs adopted the ALJ’s conclusions and recommendations. The commissioner ordered the city to restore Tombers’

vacation leave and sick time balances to the levels they were on June 2, 1998, augment those balances with leave time that would have been earned since, pay [Tombers’] backpay in the usual and ordinary amounts he would have earned had his employment status not changed, pay [Tombers’] frontpay through the date of the order of the Veteran’s Preference Panel, and restore any benefits (including pension contributions) that were not paid due to the discharge of [Tombers].

The city appeals.

ISSUES

I. Was Tombers entitled to payment of back wages and benefits during the pen-dency of the veterans preference hearing?

II. Was the city entitled to offset Tom-bers’ wages from another job, worker’s compensation, and PERA benefits from his back wages?

ANALYSIS

Summary disposition is the administrative equivalent of summary judgment. Minn. R. 1400.5500(E) (1998). Summary judgment is to be granted

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.

Minn. R. Civ. P. 56.03.

On appeal from summary judgment, we ask two questions: (1) whether any genuine issues of material fact exist; and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence is to be viewed in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

The VPA provides that a veteran discharged under honorable circumstances may be removed from public employment only “for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.” Minn. Stat. § 197.46. ..

[A] veteran is removed from his or her position or employment when the effect of the employer’s action is to make it unlikely or improbable that the veteran will be able to return to the job.

Myers v. City of Oakdale (Myers II), 409 N.W.2d 848, 850-51 (Minn.1987) (police officer put on indefinite medical leave was effectively “removed” from his job and, as a veteran, was entitled to a hearing pursuant to the VPA). In general, a public employer is responsible for a veteran’s salary from the date of suspension from employment until discharge. See Mitlyng v. Wolff, 342 N.W.2d 120, 123 (Minn.1984) (holding VPA entitles a veteran to be paid until discharge occurs).

The city argues that Tombers is not entitled to back pay based on Myers v. City of Oakdale (Myers III), 465 N.W.2d at 702 (Minn.App.1991). Myers III, however, is distinguishable and should be viewed narrowly. In Myers III, Myers admitted that at no time was he fit enough to report for work. Id. at 706. Myers requested medical leave due to a serious injury and used his accrued leave time to maintain his employment status. Id. at 703. Once he exhausted his paid leave time, the employer offered Myers a choice between taking an authorized unpaid leave or being considered absent without leave (AWOL). Id.

Myers- requested and was granted an unpaid leave of absence. Id. Myers then attempted to recover back pay, but was denied recovery because he was on voluntary, unpaid leave, and “was medically unfit to perform the duties of police officer.” Id. at 706. This court found that:

If Myers were to receive back wages from the time of the notice of the hearing until the hearing concluded, on these facts, he would receive wages that he had no possibility of earning on his own, a salary would be created where none existed, and he would be provided a windfall double recovery.

Id.

Here, however, Tombers: (1) was involuntarily sent home; (2) was told -to use his vacation time and sick leave; and (3) held himself out to be fit to work as a police officer. These facts do not fall within the narrow exception of Myers III. The general rule entitles Tombers to a continuing salary until a formal decision has been made after the hearing under the VPA.

II.

The' city argues that, even if Tombers is entitled to back pay, excessive damages were awarded, and an offset is necessary. The purpose of the VPA is to provide security in public employment, not double recovery. Lewis v. Minneapolis Bd. of Educ., 408 N.W.2d 905, 910 (Minn. App.1987), review) denied (Minn. Sept. 23, 1987). To avoid double recovery, it is proper to • offset the amount the employer owes by the amount the employee earned during the relevant period. Id.

The city argues that Tombers’ receipt of PERA and worker’s compensation must be offset. Tombers, however, provided evidence that if he is awarded back pay he may be required to repay worker’s compensation and PERA. The city did not provide evidence to refute these claims. The city has failed to prove that PERA or worker’s compensation are offsets under these facts.

A veteran, however, is required to reduce his claim for wages by the amount he earned in similar employment. See Pawelk v. Camden Twp., 415 N.W.2d 47, 52 (Minn.App.1987) (amount earned in alternative wages subtracted from back pay); Henry v. Metropolitan Waste Control Comm’n, 401 N.W.2d 401, 406 (Minn.App.1987) (back pay reduced by amount that could have been earned in employment of like kind or grade). Tombers obtained full-time employment with the Anoka County Airport as a desk clerk during his improper removal. The ALJ erred in failing to offset Tombers’ wages from the back pay. Therefore, we remand with directions to deduct Tombers’ wages from the back pay.

DECISION

Minn.Stat. § 197.46 entitled Tombers to compensation through his VPA hearing. Wages earned in a position of employment, which would otherwise not be available, are required to be offset against the back pay award.

Affirmed in part, reversed in part, and remanded.


author: G. BARRY ANDERSON, Judge

text:
    Rosemary DOYLE, Appellant, v. Edward V. KUCH, D.M.D., Respondent.
    No. C5-99-1951.
    Court of Appeals of Minnesota.
    May 30, 2000.

      Logan N.. Foreman, III, and Tamara M. Haas, Minneapolis, for appellant.
    William H. Hart, Katherine A. McBride, Barbara A. Zurek, Meagher & Geer, P.L.L.P., Minneapolis, for respondent.
    Considered and decided by ANDERSON, Presiding Judgé, SCHUMACHER, Judge, and PETERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge

Appellant challenges the district court’s grant of a Minn. R. Civ. P. 12.02(e) motion to dismiss her dental malpractice claim against respondent as barred by the statute of limitations. Because we are required to draw all inferences in favor of appellant’s complaint, which alleges that negligence occurred within two years of the date she commenced suit, the statute of limitations does not bar her claim. Accordingly, we reverse.

FACTS

On May 6, 1999, appellant Rosemary Doyle filed a complaint alleging dental malpractice by respondent Edward V. Kuch, D.M.D. The alleged negligence corresponds to Kuch’s treatment of five of Doyle’s teeth from 1986 to May 8, 1997. In his answer to the complaint, Kuch denied all of the allegations and asserted the two-year statute of limitations, Minn.Stat. § 541.07 (1998), as an affirmative defense. Kuch followed his answer with a motion to dismiss plaintiffs complaint, or in the alternative, for summary judgment.

Kuch argued that Doyle’s claim was time-barred by operation of the “single-act” exception to the medical malpractice statute of limitations because the last negligent act specifically alleged took place on April 24, 1997, the date he extracted tooth number three. Doyle countered that her claim was timely under the two-year statute of limitations in effect when proceedings were commenced because the negligence continued through her last visit to Kuch’s clinic on May 8, 1997. Alternatively, Doyle asserted that her claim fell under the newly amended four-year statute of limitations, effective August 1, 1999. Doyle requested that any dismissal be without prejudice, but did not challenge the district court’s jurisdiction over respondent’s motion.

The district court treated Kuch’s motion as a motion to dismiss, concluded that the two-year statute of limitations applied, and determined that the “single-act” exception operated to set April 24, 1997, as the termination date of Doyle’s treatment. Because Doyle commenced the action on May 6, 1999, more than two years after the April 24, 1997 extraction, the district court held that the two-year statute of limitations barred her malpractice claim and dismissed the action with prejudice. Doyle appeals that ruling.

ISSUES

I. Did the district court have subject-matter jurisdiction over respondent’s motion to dismiss?

II. Did the district court err by granting respondent’s motion to dismiss?

ANALYSIS

I.

Doyle first claims that Minn. R. Civ. P. 12.02 deprived the district court of jurisdiction to rule on the motion to dismiss. A party may challenge subject-matter jurisdiction for the first time on appeal, and we review the question de novo. Rasmussen v. Sauer, 597 N.W.2d 828, 330 (Minn.App.1999), review denied (Minn. Sept. 14, 1999).

Rule 12.02 governs defensive motions, including motions to dismiss for failure to state a claim upon which relief can be granted. See Minn. R. Civ. P. 12.02(e). Rule 12.02 provides in relevant part that

[a] motion for making any of [the defenses under Rule 12.02] shall be made before pleading if a further pleading is permitted.

Id. Kuch filed his motion to dismiss six days after filing a responsive pleading — his answer.

Although Doyle correctly points out the error, a timing violation under rule 12.02 does not deprive the district court of authority to rule on the motion. The Minnesota Rules of Civil Procedure grant the district court the discretion to review a motion notwithstanding the time limitations imposed by rule 12.02. See Minn. R. Civ. P. 6.02 (permitting district courts to extend time limits imposed “by statute, by these rules, or by a notice given thereunder, or by order of the court”). The district court’s discretion to allow a late filing as conferred by the rules is consistent with retained jurisdiction. Accordingly, the district court here retained jurisdiction over Kuch’s motion to dismiss.

Because we conclude that the dis-. trict court had subject-matter jurisdiction over the motion, and Doyle did not challenge the late motion below, we do not resolve the question of whether the district court abused its discretion by' electing to review Kuch’s untimely filing. See Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 909 (Minn.1999) (observing that appellate courts will not consider an issue raised for the first time on appeal).

n.

Doyle next argues that the district court erred by granting Kuch’s motion to dismiss. When reviewing cases dismissed for failure to state a claim on which relief can be granted, we determine only

whether the complaint sets forth a legally sufficient claim for relief. It is immaterial to our consideration here whether or not the plaintiff can prove the facts alleged.

Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955).

The Minnesota Supreme Court explained the limited function served by a rule 12.02(e) motion to dismiss in Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963):

A claim is sufficient against a motion to dismiss based on Rule 12.02(5) [current version at 12.02(e) ] if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded. To state it another way, under this rule a pleading will be dismissed only if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded.

Id.

At the time Doyle filed her May 6, 1999 claim, the medical malpractice statute of limitations required that claims be commenced within two years of the accrual of the cause of action. See Minn.Stat. § 541.07(1) (1998). Generally, the “cause of action' accrues when the physician’s treatment for a particular condition ceases.” Grohdahl v. Bulluck, 318 N.W.2d 240, 243 (Minn.1982) (citation omitted). This is the general termination of treatment rule.

But where there is a single act of allegedly negligent conduct, .the statute of limitations begins to run at the time the plaintiff sustains damage from the act. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 428-29 (Minn.1988). More precisely, the cause of action begins to-run at the time of the negligent act (and not at the end of the course of treatment) when the alleged tort consists of (1) a single act; (2) which is complete at a precise time; (3) which no continued course of treatment can either cure or relieve; and (4) where the plaintiff is actually aware of the facts upon which the claim is based; that is, the plaintiff is aware of the malpractice prior to the end of treatment. Swang v. Hauser, 288 Minn. 306, 309, 180 N.W.2d 187, 189-90 (1970). We refer to this rule as the “single-act” exception.

The district court decided that
[t]he single act exception to the general termination of treatment rule applies in this matter. As set out in [Doyle’s] Complaint, there are five separate, identifiable acts of alleged negligence by [Kuch] for which treatment was completed at precise times. No further treatment could cure or relieve the alleged negligence as to each of the five teeth, despite [Doyle’s] assertion that [Kuch] continued to treat [her]. * * ⅜ Finally, [Doyle] was fully aware of the treatment she was receiving, as evidenced by her detailed Complaint. The facts upon which her claims are based were easily obtainable and discoverable following each specific act of treatment. * * * [Kuch’s] alleged malpractice terminated at a specific point in time for each tooth.

While the district court correctly pointed out the challenges Doyle will face with these claims, the problem here is that the complaint alleges continuing negligence through May 8, 1997. We disagree with the district court’s conclusion that it appears to a certainty that no facts could be introduced consistent with the general termination of treatment rule.

There is a practical reason why the “single-act” exception is an exception: “actionable treatment does not ordinarily consist of a single act or, even if it does, it is most difficult to determine the precise time of its occurrence.” Id. at 189. Doyle’s complaint, at paragraph 17, alleges that

[t]he accepted practice for a dentist exercising that degree of skill and knowledge normally possessed by a dentist in good standing and using reasonable care under similar circumstances required defendant Kuch to monitor the results of the treatment, identify and diagnose complications such as advancing decay and infection, and treat the infection in a proper and timely fashion.

While Doyle ultimately bears the burden of presenting evidence tending to show each element of negligence in order to survive a motion for summary judgment, she need not present evidence to prove her allegations in order survive a rule 12.02(e) motion to dismiss. On review, we must draw all inferences in favor of Doyle and assume that she can prove her claim that Kuch’s negligence continued through her final May 8, 1997 dental appointment. See Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn.1980) (explaining that on review of a district court’s decision to grant a party’s motion for dismissal, all inferences must be drawn in favor of the party against whom the motion was made).

Assuming, as we must, that Doyle can prove her claims, the continuing treatment she alleges is not a single act, completed at a precise time, which no continuing course of treatment could cure or relieve. Therefore, Doyle’s allegations of negligence through May 8, 1997 do not fall within the “single-act” exception. Under the general termination of treatment rule, Doyle filed her May 6, 1999 complaint within the two-year statute of limitations period. Because the statute of limitations does not, at this stage of proceedings, bar Doyle’s claim, we hold that the district court erred by granting Kuch’s motion to dismiss.

In so holding, we are mindful that the Minnesota Supreme Court has expressly rejected the notion that a physician’s continuing “non-treatment” is sufficient to toll the statute of limitations. See Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn.1993) (holding that the single act exception applied where the physician misdiagnosed the plaintiffs illness and overlooked her breast cancer during later visits). We also recognize that, ordinarily, subsequent remedial treatment does not toll the statute. See, e.g., Haberle v. Buchwald, 480 N.W.2d 351, 356 (Minn.App.1992), review denied (Minn. Aug. 4, 1992); Crenshaw v. St. Paul Ramsey Med. Ctr., 379 N.W.2d 720, 721 (Minn.App.1986), review denied (Minn. Mar. 27, 1986).

The determinations in those cases, however, were made with the benefit of evidence supplied in response to motions for summary judgment. Unlike review of a motion for summary judgment, a determination on a rule 12.02(e) motion to dismiss must be confined to the pleadings. Minn. R. Civ. P. 12.02; see also Bush v. City of Lakefield, 399 N.W.2d 169, 171-72 (Minn.App.1987), review denied (Minn. Mar. 18, 1987). On the pleadings alone, without the aid of other evidence or expert testimony, the district court’s determination of whether Kuch’s treatments were single acts of negligence,- as opposed to a continuing course of negligent conduct ending on May 8, 1997, was premature.

Because we hold that the district court erred by granting Kuch’s motion to dismiss, we need not decide whether the dismissal ought to have been without prejudice.

DECISION

The district court erred by dismissing appellant’s dental malpractice claim as barred by the statute of limitations because her complaint does not allege negligence that falls within the “single act” exception to the general termination of treatment rule. Under the general termination of treatment rule, appellant’s claim falls with the limitations period.

Reversed.


author: PETERSON, Judge

text:
    ASTLEFORD EQUIPMENT CO., INC., Appellant, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., a Delaware Corporation, Respondent.
    No. C5-99-1612.
    Court of Appeals of Minnesota.
    May 30, 2000.

      Robert L. DeMay, Elizabeth A. Cumming, Minneapolis, for appellant.
    Frank A. Dvorak, Foley & Mansfield, Minneapolis, and Ezra D. Rosenberg, Dec-hert Price & Rhoads, Princeton, NJ, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and FOLEY, Judge.

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

   OPINION

PETERSON, Judge

Respondent Navistar International Transportation Corporation manufactures and assembles medium- and heavy-duty trucks and truck parts and markets them under the International brand name. Appellant Astleford Equipment Company, Inc., is an International truck dealership located in Burnsville, Minnesota. After Navistar informed Astleford that it intended to authorize North Star Fleet Services, Inc. (NSF),-to open an International-truck dealership in Eagan, .Minnesota, about nine miles from Astleford’s location, Astle-ford brought this action against Navistar. Astleford sought a judgment declaring that to establish a new dealership in Ea-gan would (1) violate MinmStat. § 80E.14 (limitations on establishing or relocating new motor vehicle dealerships); (2) violate MinmStat. § 325E.0681, subd. 1 (requiring good cause for an equipment manufacturer to substantially change the competitive circumstances of a dealership agreement); and (3) breach the implied covenant of good faith and fair dealing included in the dealership agreement between Astleford and Navistar. The district court permitted North Star International Trucks (NSI), an International truck dealer located in Minneapolis, Minnesota, and- NSF to intervene- and assert cross-claims against Navistar.

The district court granted summary judgment in favor of Navistar on Astle-ford’s claim for breach of the implied covenant of good faith and fair dealing, and Astleford’s remaining claims were tried to the court. On the first day of trial, the district court vacated the order of intervention because NSI’s and NSF’s interests were adequately represented by Navistar. Following a five-day trial, the district court concluded that establishing an International truck dealership in Eagan would not violate Minn.Stat. § 325E.0681, subd. 1, or Minn.Stat. § 80E.14 and issued an order for judgment in favor of Navistar. The district court denied Astleford’s motion for amended findings or, alternatively, a new trial, and judgment was entered in favor of Navistar.'

FACTS

Navistar, the successor in interest to International Harvester, manufactures and assembles medium- and heavy-duty trucks and truck parts and markets them under the brand name International. Navistar markets its products through a nationwide network of dealers. Each dealer enters into a dealer sales/maintenance agreement with Navistar that establishes the rights and obligations of both Navistar and the dealer. Navistar assigns each dealer a nonexclusive geographical area called an area of responsibility (AOR), which is considered to be the dealer’s primary area of responsibility but can be changed unilaterally by Navistar. Navistar judges each dealer, in part, by its performance in selling International trucks within the dealer’s AOR. In its dealer agreements, Navistar expressly retains the right to sell its products within a dealer’s AOR both directly and through other International dealers. Generally, all dealers are required to sell International parts and perform warranty services on both medium- and heavy-duty International trucks, and an individual dealer is authorized to sell either medium-duty or both medium- and heavy-duty new International trucks.

Astleford has been in business since 1945. It originally dealt in farm implements manufactured by International Harvester and. currently sells and services International and Isuzu trucks. The corn-mercial new truck industry suffered a downturn during the early 1980s. In the Minneapolis/St. Paul area, only Astleford and one other independently owned International truck dealership survived the downturn. Navistar closed a company-owned dealership located in St. Paul and sold a company-owned dealership located in Northeast Minneapolis to NSI. In 1985, with Navistar’s consent, Astleford relocated its dealership from Richfield to Burns-ville.

Another major industry downturn began to affect Astleford in 1988 or 1989. During this economic downturn, Navistar sought to terminate Astleford’s dealership. Astleford challenged the termination, and the parties agreed that Astleford’s heavy-duty International truck dealership would be terminated, but it would retain its medium-duty International truck dealership. Since 1990, Astleford has been capable of acting and has expressed a willingness to act as a heavy-duty truck dealership, but Navistar has declined to reauthorize Astle-ford as a heavy-duty truck dealership.

NSI, an authorized medium- and heavy-duty International truck dealer is located in Minneapolis. In 1997, NSI’s owner, Michael Gleeson, indicated to Navistar an interest in opening a secondary facility to be operated by NSF in Eagan. The Ea-gan site is about nine miles from Astle-ford’s site and is within NSI’s and Astle-ford’s AORs. NSF sought authorization as a heavy-duty International truck dealer.

Navistar presented evidence that between 1994/1995 and 1996/1997, the market for heavy-duty trucks within NSI’s and Astleford’s AORs increased significantly. Citing testimony by Sandra Dawson, As-tleford’s owner, and Mark Johnson, Navis-tar’s vice president, Navistar asserts that NSF will generate an increase in sales of International heavy-duty trucks, which, in turn, will benefit Astleford’s parts and service business. But Dawson’s testimony indicated that Astleford generally does not service heavy-duty trucks. Dawson testified that while it was possible that Astle-ford would derive parts and service business from NSF’s heavy-duty truck sales, it was unlikely. Johnson testified that selling more heavy-duty trucks represented an opportunity to improve the market share for all International dealers.

ISSUES

I. Did the district court err in finding that Navistar’s approval of an International dealership in Eagan would not substantially change the competitive circumstances of Astleford’s dealership agreement with Navistar?

II. Did the district court err in finding that Navistar demonstrated good cause under Minn.Stat. § 80E.14 for establishing the NSF dealership in Eagan?

III.Is Astleford entitled to a new trial because the district court erred in failing to compel NSI to provide Astleford with discovery concerning NSI’s parts and service customers and a secondary facility located in Hudson?

IV. Is Astleford entitled to a new trial because the district court considered a market penetration analysis that was not prepared by Navistar until after trial?

ANALYSIS

I.

Statutory construction is a question of law subject to de novo review. Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998). When a statute is unambiguous, the court must give effect to the statute’s plain meaning. Turna v. Commissioner of Economic Sec., 386 N.W.2d 702, 706 (Minn.1986). But, when a statute is ambiguous, that is, when it is reasonably susceptible to more than one interpretation, the court must determine the probable legislative intent and construe the statute in a manner consistent with that intent. Id. In determining legislative intent, the court may consider the need for the law, the circumstances of its enactment, the purpose of the statute, the prior law, if any, the consequences of an interpretation, the legislative history, and administrative interpretations of the law. Minn.Stat. § 645.16 (1998).

The Heavy and Utility Equipment Manufacturer and Dealers Act (HUEMDA) provides:

No equipment' manufacturer, directly or through an officer, agent, or employee may terminate, cancel, fail to renew, or substantially change the competitive circumstances of a dealership agreement without good cause. “Good cause” means failure by an equipment dealer to substantially comply with essential and reasonable requirements imposed upon the dealer by the dealership agreement, if the requirements are not different from those requirements imposed on other similarly situated dealers by their terms.

Minn.Stat'. § 325E.0681, subd. 1 (1998).

Navistar argues that Minn.Stat. § 325E.0681 does not apply to this case because Navistar’s dealership agreement with Astleford permits Navistar to appoint dealers • anywhere, including within' Astle-ford’s AOR. In Midwest Great Dane Trailers, Inc. v. Great Dane Ltd. Partnership, 977 F.Supp. 1386, 1391-93 (D.Minn.1997), the federal district court rejected this argument:

On its face, it is evident that “of a dealership agreement” is intended to modify the phrase “substantially change the competitive circumstances.” However, had the legislature intended to limit causes of action under this part of the statute to changes in the agreement or contract itself, it would have had no need to include the phrase “competitive circumstances” and simply could have required good cause by manufacturers to “substantially change a dealership agreement” or possibly, to “substantially change the competitive circumstances in a dealership agreement.”
The plain meaning of the word “circumstance” helps explain why the legislature may have included it in the statute. “Circumstance” is defined as “a specific part, phase, or attribute of the surroundings or background or an event, fact, or thing or of the prevailing conditions in which it exists or takes place.” Webster’s Third New International Dictionary, 1968. Black’s Law Dictionary accordingly defines “circumstances” as “attendant facts” and “[t]he surroundings at the commission of an act[.]” * * * It is a maxim of statutory interpretation that “[a] word must be construed in accordance with its common and approved usage unless to do so would be inconsistent with manifest legislative intent.” Construing “circumstances of a dealership, agreement” in favor of dealers and according to its . “common and approved usage” is hardly inconsistent with the manifest legislative intent of the statute, which was undeniably designed to protect dealers and distributors. Therefore, the Court finds that an actionable claim exists under the statute when a dealer alleges that a manufacturer has effectuated a “substantial change in competitive circumstances” without good cause, even if the alleged “change” was contractually permitted. * * *
* * * *
* * * [T]o interpret the subdivision as does Defendant, would produce consequences contrary to the obvious motive of a statute which affords protection to dealers and distributors. For example, Defendant could appoint many new dealers and thus create market conditions - without actually terminating Plaintiff - that would render the dealer’s business entirely unprofitable. If this Court accepts Defendant’s interpretation of the provision in question, [Minnesota’s HUEMDA] would actually provide no remedy for substantial changes above and beyond what a dealer would normally have were it to raise a contract claim. The statute requires good cause and notice for termination so that, for example, the superior bargaining position of manufacturers cannot be used to enforce terminable-at-will provisions in dealership agreements. The statute thus provides an extracontractual remedy for terminations by manufacturers, and it is consistent, therefore, to interpret the phrase “substantial change in competitive circumstances” to permit remedies for substantial competitive changes beyond what was agreed upon by the parties in writing.

We find the reasoning of the Great Dane court persuasive and, accordingly, conclude that Minn.Stat. § 325E.0681 applies to this case.

Good cause is not at issue in this case. The parties stipulated:

For purposes of this lawsuit, Navistar does not claim that Astleford has failed substantially to comply with the essential and reasonable requirements imposed by Astleford’s dealership agreement with Navistar, requirements which are not different from those imposed on other similarly situated dealers.

Thus, the only question is whether the district court erred in concluding that Nav-istar’s approval of the Eagan facility would not substantially change the competitive circumstances of Astleford’s dealership agreement with Navistar.

The parties dispute' how significant a change must be to “substantially change the competitive circumstances” within the meaning of Minn.Stat. § 325E.0681, subd. 1. The seventh circuit court of appeals interpreted the term “substantial change in competitive circumstances” in Wisconsin’s Fair Dealership Law as meaning a “de facto or constructive termination of the dealership agreement.” East Bay Running Store, Inc. v. NIKE, Inc., 890 F.2d 996, 998, 1000-01 (7th Cir.1989) (athletic apparel supplier’s nondiscriminatory, system-wide new policy prohibiting specified sales by mail or telephone did not constitute “substantial change in competitive circumstances of dealership agreement” even though it had the potential to hurt dealers’ profitability); see also Jungbluth v. Hometown, Inc., 201 Wis.2d 320, 548 N.W.2d 519, 524 (1996) (notice requirement in Wis. Stat. § 135.04 “designed to afford the dealership the opportunity to react and protect itself from the potentially devastating affects [sic] of an overreaching grantor”); Van Riper v. Ford New Holland, Inc., 261 Mont. 206, 862 P.2d 47, 51 (Mont.1993) (upholding finding of “substantial change in competitive circumstances” when manufacturer indirectly terminated dealership; manufacturer’s conduct included unilaterally placing dealer in attrition status without reasonable notice or the opportunity to avoid further investment, establishing a second dealership in the area knowing two dealers could not survive, refusing to remove dealer from stop ship status after receiving payment, and diverting dealer’s orders for goods without notice and transferring such products to competitor). This interpretation is consistent with the statutory construction rule that general words are construed to be restricted in then-meaning by preceding particular words. Minn.Stat. § 645.08(3) (1998). The words preceding “substantially change the competitive circumstances” in Minn.Stat. § 325E.0681, subd. 1, are “terminate, cancel, fail to renew,” all of which have the same meaning. We conclude that the term “substantially change the competitive circumstances” in Minn.Stat. § 325E.0681, subd. 1, means conduct amounting to a de facto or constructive termination of a dealership agreement.

Whether a “substantial change in the competitive circumstances” has occurred is a fact question. See Meyer v. Kero-Sun, Inc., 570 F.Supp. 402, 404 (W.D.Wis.1983) (whether change in the exclusivity of a distributorship arrangement constituted a substantial change in competitive circumstances was a factual dispute). This court will not reverse the district court’s findings of fact unless clearly erroneous. Minn. R. Civ. P. 52.01.

Astleford’s expert, Ernest Manuel, testified that the truck industry was experiencing a profitable period, and he did not believe NSF would drive Astleford out of business in that economic climate. Astle-ford does not challenge the district court’s finding that it would be more likely than NSF to survive the next industry downturn. The district court’s finding that approval of NSF’s new dealership in Eagan would not constitute a substantial change in circumstances is not clearly erroneous.

II.

Minn.Stat. § 80E.14, subd. 1 (1998), provides:

. In the event that a manufacturer seeks to enter into a franchise establishing an additional new motor vehicle dealership or relocating an existing new motor vehicle dealership within or into a relevant market area [RMA] where the line make is then represented, the manufacturer shall, in writing, first notify each new motor vehicle dealer in this line make in the relevant market area of the intention to establish an additional dealership or to relocate an existing dealership within or into that market area. The relevant market area is a radius of ten miles around an existing dealership. * * * Thereafter the manufacturer shall not establish or relocate the proposed new motor vehicle dealership unless the court has determined that there is good cause for permitting the establishment or relocation of the motor vehicle dealership.

Minn.Stat. § 80E.14, subd. 2 (1998), lists nine factors for the court to consider “[i]n determining whether good cause has been established for entering into or relocating an additional franchise for the same line make.” The statutory

factors focus on the interests of three separate groups or entities: (1) the consuming public; (2) the protesting dealer; and (3) all new car dealers within the protestant’s RMA.

T.I.W., Inc. v. American Honda Motor Co., Inc., 808 F.Supp. 1399, 1401 (D.Minn. 1992); see also Minn.Stat. § 80E.01 (1998) (purpose for motor vehicle sale and distribution act (MVSDA) is to promote public interest and protect investments and properties of Minnesota citizens).

Navistar argues that the district court erred in applying Minn.Stat. § 80E.14 to this case because the statute only applies when a manufacturer seeks to establish a new dealership in an RMA where the line make is already represented. Navistar argues that the term “make” should be construed as referring to the manufacturer and “line” should be construed as a specific type of vehicle made by a manufacturer. In other words, in this case, International is the “make” of the truck, and heavy-duty and medium-duty trucks are two different lines of International trucks. We need not decide whether the definition of line make urged by Navistar is the statutory definition. Although Astleford is authorized to sell only new medium-duty International trucks and NSF will be authorized to sell only new heavy-duty International trucks, the record shows that there is an overlap between the trucks International designates as medium duty and those it designates as heavy duty. Therefore, even under the definition proposed by Navistar, both Astleford and NSF will be selling the same line make of new International trucks.

Navistar also argues that Minn. Stat. § 80E.14 does not apply to this case because the statute applies only to new motor vehicle dealers, and Astleford only claims that NSF will impact its parts and service business, not its new truck sales business. We disagree. Minn.Stat. § 80E.03, subd. 3, defines a “dealer” as “a person who in the ordinary course of business is engaged in the business of selling new motor vehicles.” Neither Minn.Stat. § 80E.03, subd. 3, nor Minn.Stat. § 80E.14 distinguish between new motor vehicle sales and other aspects of a dealer’s business. The evidence supports the district court’s finding that “after-sale parts and service is a very important element- of a dealer’s business.” It would be inconsistent with the statutory purpose of protecting a dealer’s investment to separate new truck sales from the parts and service business for purposes of analysis under Minn.Stat. § 80E.14. The district court properly concluded that Minn.Stat. § 80E.14 applies to this case.

We next consider the district court’s analysis of the “good cause” factors in MinmStat. § 80E.14, subd. 2.

Investment of existing and proposed dealerships - Minn.Stat. § 80E.H, subd. 2(a)

Astleford argues that the district court erred in finding that NSF made an extensive commitment to its dealership because the evidence did not show that the investment was made for purposes of an International dealership. The statutory language does not support Astleford’s argument. Unlike other subsections of Minn.Stat. § 80E.14, subd. 2, subsection (a) does not refer to a specific line make.

Effect of new dealership on existing dealerships and public welfare - Minn. Stat. § 80E.1I, subd. 2(c)

Astleford argues that Navistar failed to demonstrate that NSF would not significantly injure Astleford. However, a finding of good cause under Minn.Stat. § 80E.14 does not depend solely on NSF’s effect on Astleford, but rather requires a balancing of the interests of consumers, Astleford, and other new truck dealers within Astleford’s RMA. See T.I.W., 808 F.Supp. at 1401 (discussing statutory factors). The district court made detailed findings on the impact NSF will have on Aistleford, and the evidence supports those findings.

Adequate market penetration — Minn. Stat. § 80E.H, subd. 2(e)

Astleford argues that the district court erred in considering NSI’s performance as an International heavy-duty truck dealer because NSI is outside the RMA. Even if the district court should only have considered Astleford’s performance and even if Astleford’s performance as a medium-duty truck dealer is exemplary, evidence supports the district court’s finding that Nav-istar’s share of the heavy-duty truck market in the RMA is about 50% less than its national average. Astleford cites no authority to support its argument that ■ if Navistar wanted to establish an International heavy-duty truck dealership within the RMA, Navistar was required to reauthorize Astleford as an International heavy-duty truck dealer.

Increased competition benefiting the public interest - MinnStat. § 80E.H, subd. 2(f)

Astleford argues that the district court erred in finding that NSF would benefit the public interest by increasing inter-brand competition among heavy-duty truck dealers. Several competitors of Navistar for heavy-duty truck customers operate dealerships within ten miles of NSF, including Chesley Freightliners, Lakeland Ford Truck Sales, Inc., and Allstate Peter-bilt. In light of the evidence of the increasing truck market in the RMA and surrounding areas, the district court’s finding that the increased competition would benefit the public interest is not clearly erroneous.

Astleford does not object to the district court’s findings on the remaining statutory factors. Astleford cites no authority supporting its argument that the district court erred in failing to consider alternative locations outside of Astleford’s RMA where NSI could establish a secondary facility. The evidence is sufficient to support the district court’s determination of good cause. See Wilkins Dodge, Inc. v. Chrysler Corp., 426 N.W.2d 908 (Minn.App.1988) (upholding determination of good cause under Minn.Stat. § 80E.14), review denied (Minn. Sept. 16,1988).

III.

The decision whether to grant a new trial lies within the district court’s discretion and will not be reversed absent a clear abuse of discretion. Baker v. Amtrak National R.R. Passenger Corp., 588 N.W.2d 749, 753 (Minn.App.1999). The district court has broad discretion to grant or deny discovery requests, and its decision will not be reversed absent an abuse of discretion. Berge v. Commissioner of Pub. Safety, 588 N.W.2d 177, 179 (Minn.App.1999).

Astleford sought discovery regarding a secondary facility that NSI operated in Hudson, Wisconsin from 1992 through 1994. Astleford argues that evidence regarding the Hudson operation would have helped the district court evaluate NSI’s effectiveness as a new heavy-duty truck dealer and the likelihood that NSF would generate parts and service business for Astleford. But Astleford had the opportunity to question Gleeson about the Hudson facility during his two-day deposition, and Astleford cites no evidence that market conditions in Hudson were similar to market conditions in Astleford’s and NSI’s AORs. The district court’s failure to compel NSI to provide discovery on its Hudson operation was not an abuse of discretion.

Astleford also contends that it should have been allowed to conduct discovery on the location of NSI’s new truck, parts, and service customers and thq volume of parts and service business those customers generate. But Astleford was provided with the identity and purchase history of customers to whom NSI sold International trucks during the preceding three years and also had the opportunity to question Gleeson and Don Williams, NSI’s vice president, during their depositions about NSI’s parts and service customers. The district court’s findings that NSF would not significantly affect Astle-ford appear to be based on evidence that (1) Astleford and NSI both have a backlog of repair work; (2) Astleford’s repair facility is larger and better-equipped than NSF’s; (3) the growing truck market in the Twin City area; and (4) more than 80% of truck parts are interchangeable, and Astleford already faces so much competition in the parts and service business that the addition of NSF would not have a substantial impact on Astleford. The party seeking a new trial must demonstrate that the district court erred and that the error was prejudicial. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (Minn.1975). Even if the district court erred in not allowing Astleford to conduct discovery on the location of NSI’s new truck, parts, and service customers and the amount of service business they generate, Astleford has not demonstrated that any error was prejudicial.

IV.

Astleford contends that the trial court improperly considered a market penetration analysis that was not prepared by Navistar until after trial. The market penetration analysis to which Astleford objects showed Navistar’s 1996 and 1997 market share of class 8 trucks in zip code areas entirely or partially within the ten-mile RMA around Astleford. The analysis was included in Navistar’s posttrial brief and was based on exhibit 104, a 252-page report showing registration data for trucks of all makes registered in zip code areas in NSI’s AOR. Wayne Krzysiak, vice president and general manager of Navistar’s parts operations, laid the foundation for exhibit 104 and explained how the document can be used to determine a dealer’s market share.

Astleford argues that it did not have the opportunity to respond to the analysis. But Astleford had the opportunity to cross-examine Krzysiak on exhibit 104 and could have responded to the market penetration analysis in a posttrial brief or in its motion for a new trial. Astleford also contends that the analysis was improper because exhibit 104 was not entirely accurate in showing market share. This objection goes to the weight of the evidence, not its admissibility. See Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn.1986) (alleged errors in calculating future lost profits go to the weight of evidence not admissibility). The district court did not err by considering the market penetration analysis.

DECISION

The district court properly concluded that Minn.Stat. § 325E.0681, subd. 1, applies to this case, and its finding that NSF will not substantially change the competitive circumstances of Astleford’s dealership agreement with Navistar is not clearly erroneous. The district court properly concluded that Minn.Stat. § 80E.14 applies to this case, and the evidence supports the district court’s determination that Navistar demonstrated good cause for establishing an additional new heavy-duty truck dealership in Astleford’s RMA. The district court did not err by denying Astleford’s motion for a new trial or by considering the market penetration analysis submitted with Navistar’s posttrial brief.

Affirmed.

      . Trucks are classified into eight categories based on gross vehicle weight (GVW). Trucks with a GVW between' 16,001 and 33,000 pounds are in classes five through seven, and trucks with a GVW exceeding 33,000 pounds are in class eight. Generally, Navistar designates trucks in classes six and seven as medium-duty trucks and trucks in class eight as heavy-duty. But, depending on how they are constructed, some of the trucks Navistar designates as medium-duty can be classified as class eight trucks.


author: TOUSSAINT, Chief Judge

text:
    In re the Matter of A.R.M., Minor Child.
    No. C4-99-1553.
    Court of Appeals of Minnesota.
    May 30, 2000.

      Richard A. Emerick, Burnsville, for appellant Mary L. Mertz.
    Thomas John Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, Shakopee, for respondent Scott County.
    Bruce Ronald Rubbelke, Blaine, for respondent Robert J. Mahowald.
    Miriam J. Wolf, Morris & Wolf, Shako-pee, for Guardian Ad Litem.
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and FOLEY, Judge.

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

   OPINION

TOUSSAINT, Chief Judge

The 1990 judgment dissolving the marriage of appellant-mother Mary Mertz and respondent-father Robert Mahowald awarded mother sole physical custody of the parties’ child. In February 1997, mother voluntarily placed the child in foster care. Thereafter, in June, the child was adjudicated in need of protection or services (CHIPS). Later, efforts by father to obtain custody of the child under chapter 518 and efforts by the county to place the child with father in the CHIPS proceeding were unsuccessful. In Aug. 1999, however, the county’s third attempt to place the child with father was granted. Mother appeals, alleging the district court erred in (a) awarding the father physical custody in a CHIPS proceeding under Minn.Stat. § 260C.201, subd. 11(e)(1) (Supp.1999) rather than by modifying the dissolution judgment under MinmStat. § 518.18 (1998); (b) refusing to allow mother to present evidence on the child’s best interests at a hearing addressing whether the county could cease reunification efforts; and (c) in finding the county’s reunification efforts reasonable.

FACTS

The 1990 judgment dissolving the parents’ marriage awarded mother and father joint legal custody of their child and placed sole physical custody in mother. The child began receiving assistance from the county in 1994. Mother’s psychological and chemical dependency problems, combined with the child’s behavioral problems, caused mother to place the child in foster care in February 1997. In March, a guardian ad litem was appointed for the child and the county filed a CHIPS petition alleging the child lacked proper parental care.

After an initial hearing, the district court transferred the child’s temporary custody to the county and ordered the child to remain in foster care while the county looked for a relative to' care for him. By agreement of all parties, on April 11, 1997, the child was placed with his paternal grandparents. Also in April, mother entered an inpatient treatment program, which she later completed.

On June 5, 1997, mother admitted the allegations in the CHIPS petition and the child was adjudicated CHIPS. The county then prepared, and the court adopted, a placement plan, which required mother to complete chemical dependency aftercare, cooperate with mental health services, participate in parenting instruction, and remain sober.

Meanwhile, in the dissolution file, father’s motion for physical custody of the child, was denied in August, 1997. Shortly thereafter, the child returned to mother’s home. The child’s behavioral problems, which had improved while he was in foster care, resumed and, in October and November, the child’s behavior worsened. Because mother did not consistently meet with human services workers and was generally unsuccessful in meeting the child’s parenting needs, both the guardian ad li-tem and the child protection worker recommended that the child be placed with father and his wife (also a respondent in this proceeding).

At a November review hearing, the county requested transfer of custody to father. The court placed the child out of mother’s home pending an evidentiary hearing. At that hearing, evidence submitted included a letter from the child’s mental health worker stating mother often failed to take advantage of the services offered by the county, that the child flourished in foster care, and that mother did not meet the child’s needs. In December, the district court placed the child in father’s custody. ■

At a March 1998 review hearing, reports from the guardian ad litem, the child protection worker, and the child’s mental health worker recommended permanently placing the child with father. Mother’s chemical dependency and mental health counselors reported that she had made “significant” and “remarkable” progress that year. The court ordered the child to remain with father until further order of the court, reviewed father’s dissolution file motion for permanent physical custody, and scheduled a joint hearing on all remaining issues in the CHIPS and dissolution flies.

After an April hearing, the district court issued a joint order in both actions, stating, among other things, that father’s motion to modify custody had been dismissed by agreement and the county’s motion to place the child with father was denied. The accompanying memorandum stated that the county’s motion had been denied as premature because the child had not been out of mother’s home for a statutorily required 12-month period. In July, mother, father, and father’s wife signed a “Review of Service” plan, requiring continued monthly meetings between mother and the human services workers and cooperation among all three parents in a co-parenting program.

In October, affidavits of the child protection worker and the child’s mental health worker indicated the child would benefit from being placed with father' and the county moved to place the child with father under Minn.Stat. § 260.191,- subd. 3b (1998). The district court denied the motion, ruling that (a) Minn.Stat. § 260.191, subd. 3b(e)(l), which allows placement with a relative, did not apply to a motion seeking placement with a non-custodial parent, particularly where the parent had already made an unsuccessful custody claim in the dissolution file; (b) the motion would properly be brought by father under the conditions for modification of a custody order under Minn.Stat. § 518.18 (1998); and (c) the county could amend its motion to seek permission to cease efforts to reunify mother and the child.

A hearing on the county’s amended motion to cease reunification efforts occurred in January 1999. Because there was no placement or custody issue pending, the district court denied mother’s attempts to introduce evidence regarding the parental fitness of father and his wife. The district court found (a) mother had not utilized many of the services offered by the county; (b) the child had “special needs;” (c) the county had used “all available resources” to try to reunite mother and the child; (d) the child’s special needs would not be met if he were to be. returned to mother; (e) the county had made “reasonable efforts” to reunite mother and the child; (f) those efforts had failed; and (g) it was in the child’s best interests not to be returned to mother’s custody. The district court maintained the CHIPS adjudication and ordered the child to remain with father, without efforts to reunite the child with mother.

In July, the county sought a dispositional order placing permanent custody of the child with father. Mother moved for, among other things, a return of custody to her, appointment of an attorney for the child, and attorney fees. Mother had also sought reconsideration of the court’s order (under Minn. R. Gen. Pract. 115.11) regarding a stop to reunification efforts, and removal of the language stating it was in the child’s best interests to not return to mother.

The district court’s August 11, 1999 order (a) noted the child’s improvement while in father’s custody; (b) noted a lack of evidence indicating mother could function as the child’s custodian; (c) found it “clear” mother lacked the ability to provide the stability and continuity the child required for his continued improvement; (d) found it “quite clear that [mother] fails to comprehend [the child’s] special needs and would not have a clue as to how to address his issues”; (e) expressed “great concern” that mother continued to put the child in the middle of the CHIPS and custody conflicts after repeatedly being told how destructive that was to the child; (f) acknowledged the child’s mixed feelings about his custodial preference; and (g) stated that even if the child expressed a clear preference, the court would not ignore the opinions of the experts who attributed the child’s steady progress to the structure and stability of his father’s household and who deemed those characteristics crucial to the child’s continued improvement. The district court ruled that (a) the county had made reasonable efforts to reunify mother and the child; (b) those efforts had failed; (c) the conditions leading to the CHIPS adjudication had not been corrected and were unlikely to be corrected in the next six months; (d) the child’s best interests would be served by placing permanent custody with his father; (e) mother’s motions were denied; (f) the child was to be permanently placed with father; and (g) the CHIPS petition was dismissed.

ISSUES

1. Did the district court err by placing the child with father according to a child protection statute when mother previously had been awarded custody in the dissolution judgment?

2. Was mother entitled to present evidence on whether permanent placement was in the child’s best interests at the hearing addressing whether the county could cease reunification efforts?

3. Does the record support the district court’s finding that the county’s reunification efforts were reasonable?

4. Is mother entitled to attorney fees?

ANALYSIS

I.

Noting she was awarded physical custody of the child in the dissolution judgment and that the court’s order of August 11, 1999, which invokes Minn.Stat. § 260.191, subd. 3(b) (1998), requires the child to live with father, mother argues that (a) the district court misapplied the law by modifying the dissolution judgment without applying Minn.Stat. § 518.18 (1998), which is the traditional method of modifying custody in a dissolution context; and (b) father did not show the changed circumstances and endangerment required to modify custody under MinmStat. § 518.18(d)(iii). Whether the district court correctly applied the law is a legal question and we review it de novo.

Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

A. Chapter 518

The marriage dissolution statute, chapter 518, explicitly contemplates that custody determinations may be made in CHIPS proceedings. See MinmStat. § 518.003, subd. 3(f), (g) (1998) (defining “custody determination” as court decision providing for custody of child and “custody proceeding” to include proceedings in which “custody determination” is made, including “proceedings involving children who are in need of protection or services” (respectively)).

B. Chapter 260C

The statute addressing children in foster care states that if a child cannot be returned to the home of the parent from whom the child was removed, the county “may petition on behalf of a noncustodial parent to establish legal custody with that parent under section 260C.201, subdivision, 11 [ (Supp.1999) ].” MinmStat. § 260C.212, subd.l (d) (Supp.1999) (emphasis added). Noting that the statute allows the county to petition to establish “legal custodjr” with father, mother alleges that the county’s petition here was improper because it sought to have the child physically live with father. Mother’s argument is apparently based on the distinction between “legal custody” and “physical custody” in chapter 518. Compare Minn.Stat. § 518.003, subd. 3(a) (1998) (defining “legal custody” to be “the right to determine the child’s .upbringing, including education, health care, and religious training” with Minn.Stat. § 518.003, subd. 3(c) (1998) (defining “physical custody and residence” to be “the routine daily care and control and the residence of the child”). Chapter 260C however, is the chapter under which the county filed its petition and chapter 260C defines “legal custody” as “the right to the care, custody, and control of a child who has been taken from a parent by the court * * *.” Minn.Stat. § 260C.007, subd. 10 (Supp.1999) (emphasis added). While chapter 260C does not define “physical custody,” the breadth of its definition of “legal custody” encompasses the core concepts of what chapter 518 defines as “physical custody.” Therefore, the county’s placement petition was not defective because Minn.Stat. § 260C.212, subd. 1(d) mentions only “legal custody.”

Because the county’s petition was not defective, the question revolves around the applicability of Minn.Stat. § 260C.201, subd. 11. Under that provision, the district court must “conduct a hearing to determine the permanent status of a child not later than 12 months after the child is placed out of the home of the parent.” Minn.Stat. § 260C.201, subd. 11(a). At that point, unless the county is recommending that the child be returned to the custodial parent(s), the county must “establish the basis for the juvenile court to order permanent placement of the child.” MinmStat. § 260C.201, subd. 11(b). After the hearing, the district court must either return the child home or put the child in “a permanent placement in the child’s best interests.” Minn.Stat. § 260C.201, subd. 11(c). If the district court determines that returning the child home is not in the child’s best interests, the court “must” order one of certain statutorily listed dispositions, including “permanent legal and physical custody to a relative.” MinmStat. § 260C.201, subd. 11(e) (emphasis added). The definition of “relative” includes “parent.” Minn.Stat. § 260C.007, subd. 14 (Supp.1999). And the definition of “parent” would include father here. MinmStat. § 260C.007, subd. 12 (Supp.1999). Also, orders issued under Minn.Stat. § 260C.201, subd. 11 which transfer “permanent legal and physical custody” of a child to a relative “shall follow the standards and procedures applicable under this chapter,- chapter 260, or chapter 518” and “must be filed with the family court.” Minn.Stat. § 260C.201, subd. 11(e)(1) (emphasis added). Thus, the pre-existing custody award in the dissolution judgment does not preclude use of Minn.Stat. § 260C.201, subd. 11 to place custody with father.

C. Application of Chapter 260C

Here, the record shows that the proper procedure for making a permanent placement under section 260C was followed. As authorized by Minn.Stat. § 260C.212, subd. 1(d), the county petitioned on behalf of father to establish custody with father under the permanent placement procedures of Minn.Stat. § 260C.201, subd. 11. Under Minn.Stat. § 260C.201, subd. 11, the district court was required to determine the placement status of the child and the county filed pleadings establishing the basis for an order of permanent placement with father. Following the July 1999 hearing on the motion for permanent placement, the district court ordered a permanent placement with a relative, in this case father, and found that placement in the child’s best interests. The record shows that, in reaching its decision, the district court considered the relevant factors and made findings supported by the evidence. See Minn.Stat. §§ 260C.201, subd. 11(f), (h) (addressing considerations for permanent placement decision); see also In re Welfare of A.R.G.-B., 551 N.W.2d 256, 262 (Minn.App.1996) (stating question in reviewing permanent placement is whether conditions requiring out-of-home placement have been corrected).

Because chapter 518 contemplates custody determinations being made under chapter 260C and because chapter 260C contemplates awarding custody to a child’s noncustodial parent, the district court did not misapply the law by using chapter 260C to award father custody of the parties’ child. Also, because in applying chapter 260C, the district court made findings supported by the record and ordered a custodial arrangement contemplated by the law, we affirm the placement of the child with father.

II.

Mother alleges she was denied due process of law when, after the January 1999 hearings, the district court ruled that it was in the child’s best interests not to be returned to her despite precluding her from presenting evidence on the child’s best interests at those hearings. Mother also challenges the district court’s best-interests findings.

We initially note that while mother phrases her argument in terms of the child’s best interests, the only evidence mother unsuccessfully sought to present at the January hearings addressed the allegedly defective parenting of father and his wife. The only issue before the district court at the January 1999 hearings, however, was whether the county should cease attempts to reunify mother and the child because the reunification efforts were futile. Minn.Stat. § 260.012 (1998). Reunification efforts must be consistent with a child’s best interests and may be terminated if the efforts are futile and unreasonable under the circumstances. Minn.Stat. § 260.012(a). Here, the record shows that the district court’s “best interest” determination, when paired with its conclusion that efforts at reunification were futile, was made in contemplation of section 260.012(a) and was not, as mother suggests, tantamount to vacating a custody-order without providing her with an opportunity to be heard. Rather, the district court refused evidence offered by mother regarding father and his wife because such evidence was not relevant to whether the county’s efforts to reunite mother and the child were futile.

The district court heard extensive testimony regarding the county’s reunification efforts, and its February 1999 order allowing cessation of those efforts made extensive findings regarding those efforts • and mother’s failure to take advantage of them. Moreover, mother’s claim that she was denied the opportunity to present evidence on the child’s best interests is undercut, by her subsequent failure to seek an eviden-tiary hearing when the county sought a permanent placement with father. The district court did not err in limiting evidence at the January 1999 hearings or in making its “best-interests” determination after those hearings.

III.

Mother claims the county failed to make reasonable reunification efforts, arguing the county made no reunification efforts after 1997. Mother claims that, therefore, the CHIPS action should have been dismissed because of the county’s noncompliance with this requirement and because the county later exceeded its authority in attempting to remove physical custody from mother and place it with the father. Mother cites no authority for her allegations. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 183, 135 (1971) (stating assignment of error based on mere assertion and unsupported by argument or authority waived unless error is obvious). Findings in CHIPS proceedings are not reversed unless clearly erroneous or unsupported by substantial evidence. In re Welfare of D.N., 523 N.W.2d 11, 13 (Minn.App.1994) (review denied (Minn. Nov. 29, 1994). This record provides substantial evidence documenting the county’s reunification efforts as required by Minn.Stat. § 260.012(a). The evidence supports the district court’s findings in its February 18, 1999 and August 11, 1999 orders in which it ruled that the county made reasonable, but futile, reunification efforts.

Mpther also argues that because the guardian ad litem and child protection worker consistently recommended placement with the father after 1997, the county failed to make sufficient reunification efforts. We disagree. The statute requires the district court to ensure the county makes reasonable efforts “to reunite the child with the child’s family at the earliest possible time, consistent with the best interests, safety, and protection of the child.” Minn.Stat. § 260.012(a) (emphasis added). Because reunification efforts are expressly conditioned on being consistent with the best interests, safety, and protection of the child, the county’s failure to" directly pursue reunification when it was not in the child’s best interests to do so is not a violation of the statute.

IV.

Mother seeks attorney fees for this appeal and a remand for the district court to award fees incurred in earlier proceedings. The district court refused mother’s request because mother proceeded with private counsel rather than the public defender for which she qualified. On appeal, mother first raised the fee issues in her reply brief, and that brief makes no legal argument and cites no authority for her position. The fee issues are not properly before us. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn.1987) (stating issues not briefed are waived); McIntire v. State, 458 N.W.2d 714, 717 n. 2 (Minn.App.1990) (stating arguments not made in appellant’s brief may not be revived in a reply brief), review denied (Minn. Sept. 28, 1990); Schoepke, 290 Minn, at 519-20, 187 N.W.2d at 135 (stating assignment of error based on mere assertion and unsupported by argument or authority waived unless error is obvious).

Mother has since filed a motion for fees citing Minn. R. Juv. P. 63.01, subd. 2(D), which allows payment of fees on appeal if a child’s parent or guardian cannot afford the expense. The rule, however, confers no right to circumvent available public defender services in favor of private counsel, and it has never been so interpreted or applied. Moreover, absent a successful challenge to the district court’s refusal to award fees to private counsel, we decline to do so here.

DECISION

The district court did not err in granting father custody of the parties’ child under the Minn.Stat. § 260C.201, subd. ll(e)(i) (Supp.1999) or restricting the evidence presented at the January 1999 hearings. Nor did it err in finding the county’s reunification efforts to be reasonable. We deny mother’s motion for attorney fees on appeal.

Affirmed; motion denied.

      . While the county made its motion on July 8, 1999, under Minn.Stat. § 260.191, subd. 3b, in 1999, the relevant provisions of chapter 260 were replaced by chapter 260C. See 1999 Minn. Laws ch. 139, art. 3 (replacing juvenile protection provisions of chapter 260 with chapter 260C). Chapter 260C clarified and reorganized the juvenile protection law, it was not a substantive change in that law. 1999 Minn. Laws, ch. 139, art. 4, § 1. Because chapters 260C made no substantive changes in the law and because it took effect on August 1, 1999, before the district court's order was issued, we analyze this issue under the language of chapter 260C. See Minn.Stat. § 645.02 (1998) (providing that, unless otherwise specified, a law is effective on August 1st following its enactment).

      . We reject any implication by mother that affirming the district court here will allow noncustodial parents to systematically circumvent the endangerment standard of Minn. Stat. § 518.18(d)(iii), which is generally required to be satisfied when seeking to modify a dissolution-judgment’s custody award. Among other things, obtaining a CHIPS adjudication requires clear and convincing evidence of the relevant allegations. Minn.Stat. § 260C.163, subd. 1 (Supp.1999). Modification of custody under chapter 518, however, requires only a preponderance of the evidence. Cf. Auge v. Auge, 334 N.W.2d 393, 399 (Minn.1983) (noting removal of child from state may "effect a modification of custody” and that such removals shall be granted unless party opposing removal "establishes by a preponderance of the evidence that the move is not in the best interests of the child.”) Moreover, it is procedurally more complex to obtain a CHIPS adjudication under chapter 260C than to modify custody under chapter 518. Under these circumstances, our ruling will not cause a deluge of litigation seeking to finesse the child-custody modification standard of chapter 518.