author: KALITOWSKI, Judge.

text:
    M. Jay JENSEN, et al., Appellants, v. James V. WALSH, et al., Respondents, and Timothy L. Schacher, Respondent.
    No. C4-99-1763.
    Court of Appeals of Minnesota.
    April 18, 2000.
    Review Granted June 27, 2000.

      Brian N. Toder, Brian N. Toder, Ltd., St. Paul, MN (for appellants).
    John M. Gearin, Roger A. Christianson, St. Paul, MN (for respondents James and Patricia Walsh).
    Timothy Schacher, South St. Paul, MN (pro se respondent).
    Considered and decided by WILLIS, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

KALITOWSKI, Judge.

Appellants Jay and Patricia Jensen and William and Celeste Spooner contend the district court erred in (1) granting summary judgment to respondents on the Jen-sens’ claim for intentional infliction of emotional distress; and (2) denying appellants’ motion to amend their complaint to add a count for punitive damages.

FACTS

Jay and Patricia Jensen lived next to respondents James and Patricia Walsh on property bordering the Mississippi River. The Jensens lived primarily in a houseboat they kept moored to their property. Patricia Jensen’s nephew, William Spooner, resided in the Jensens’ home with his wife, Celeste Spooner.

Appellants claimed that the Walshes, the Walshes’ acquaintance respondent Timothy L. Schacher, and Patricia Walsh’s daughter S.W. harassed them and vandalized their property because of a dispute over the location of the houseboat. Appellants sued respondents for intentional infliction of emotional distress and intentional damage to property.

In support of their claims, appellants allege three incidents: (1) one night during the summer of 1996, James Walsh and Schacher disconnected and removed appellants’ electric meter and cut the phone lines running to appellants’ houseboat; (2) later in the summer, James Walsh drove his boat by the houseboat splashing water and sand on it; and (3) in August 1996, on the eve of the Spooners’ wedding, respondents allegedly sprayed obscenities on appellants’ garage, threw eggs at appellants’ property, and punctured appellants’ automobile tires. Appellants also claimed that (1) the Walshes yelled obscenities at them; (2) respondents impeded their use of the common access road; and (3) Patricia Walsh performed acts of “witchcraft.”

The Jensens presented expert testimony from a psychologist that they suffered depressed moods and anxiety, and had difficulty sleeping as a result of these events and that Patricia Jensen suffered a decreased ability to concentrate at work. Jay Jensen also testified that he experienced stress in his chest and intestinal system, vomiting, and headaches.

Respondents moved for and were granted summary judgment on the claim for intentional infliction of emotional distress. Appellants later made a motion for leave to amend their complaint to add a claim for punitive damages, which the district court denied on the basis that punitive damages were not available because only claims for property damage remained. The parties subsequently entered into a stipulation resolving the claim for property damages. Under the stipulation, appellants expressly reserved the right to appeal the grant of summary judgment on the intentional infliction of emotional distress claim and the order denying leave to amend the complaint to seek punitive damages.

ISSUES

1. Did the district court err in granting summary judgment to respondents on the claim for intentional infliction of emotional distress?

2. Did the district court err in denying appellants’ motion to amend their complaint to include a claim for punitive damages?

ANALYSIS

I.

To sustain a claim for intentional infliction of emotional distress, a plaintiff must show that (1) the conduct was extreme and outrageous; (2) the conduct was intentional or reckless; (3) it caused emotional distress; and (4) the distress was severe. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn.1983). On a claim for intentional infliction of emotional distress, summary judgment is proper if a party does not meet the high standard of proof needed for the claim. Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn.App.1992), review denied (Minn. Dec. 15, 1992). It is for the court to determine whether the evidence would support a finding of severe emotional distress; it is for the jury to determine whether, on the evidence, such distress in fact existed. Cafferty v. Garcia’s of Scottsdale, Inc., 375 N.W.2d 850, 853 (Minn.App.1985).

A plaintiff has a heavy burden of production regarding the severity of the mental distress. Hubbard, 330 N.W.2d at 439. Emotional distress is sufficiently severe only if no reasonable person could be expected to endure it. Eklund v. Vincent Brass and Aluminum Co., 351 N.W.2d 371, 379 (Minn.App.1984), review denied (Minn. Nov. 1, 1984). The claim should not be submitted to a jury if the distress is of the sort people commonly endure in life. Lee v. Metropolitan Airport Comm’n, 428 N.W.2d 815, 823 (Minn.App.1988).

We conclude that the district court properly dismissed the claim of intentional infliction of emotional distress as a matter of law because there is insufficient evidence of severe emotional distress. See, e.g., Hubbard, 330 N.W.2d at 440 (holding that allegations of depression, vomiting, stomach disorders, rash, and high blood pressure without supporting medical evidence were not sufficiently severe as a matter of law); Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 57 (Minn.App.1995) (holding that distress including insomnia, crying spells, a fear of answering the door and telephone, and depression necessitating treatment was not sufficiently severe), review denied (Minn. July 27, 1995); Strauss, 490 N.W.2d at 913 (holding that general embarrassment, nervousness, and depression were not sufficient to support a claim of intentional infliction of emotional distress); Bohdan v. Alltool Mfg., Co., 411 N.W.2d 902, 908-09 (Minn.App.1987) (holding that claims of severe distress insufficient to withstand summary judgment due to lack of medical evidence, linking plaintiffs paranoid disorder to alleged harassment), review denied (Minn. Nov. 13,1987).

The Jensens alleged that they suffered depressed moods, difficulty sleeping, and anxiety. Patricia Jensen also alleged an inability to concentrate at work. Jay Jensen claimed, without supporting medical evidence, that he generally experienced stress in his chest and intestinal system and that he experienced vomiting and headaches. These allegations, even if found to be true, do not meet the legal standard of severe emotional distress because we cannot conclude that the claimed distress is so severe that no reasonable person could be expected to endure it; rather, the allegations here are similar to those in Hubbard, which were found insufficient as a matter of law. Hubbard, 330 N.W.2d at 440.

On appeal the Jensens rely heavily on the statement by their expert psychologist that they suffered “a severe degree of acute emotional distress.” But a psychologist’s conclusion that the distress was severe does not necessarily satisfy the legal definition of severe emotional distress. While experts can offer opinions, the district court ultimately decides whether a standard is met as a matter of law. Because the Jensens failed to establish severe emotional distress, we conclude the district court properly determined they cannot maintain a claim for intentional infliction of emotional distress as a matter of law.

II.

Appellants argue that the district court erred in determining punitive damages are not allowed in the absence of personal injury. This presents a question of law, which we review de novo. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

The most recent Minnesota Supreme Court case on this issue is Independent Sch. Dist. No. 622 v. Keene Corp., 511 N.W.2d 728 (Minn.1994). In Keene, the school district sought both recovery of the costs of asbestos removal and punitive damages, based on its allegations of negligence, strict liability, breach of implied warranties, breach of express warranties, and fraud. Id. at 729. The supreme court cited Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226, 228 (Minn.1982), for the proposition that punitive damages are not recoverable in a strict products-liability action where the plaintiff suffers only property damage. Keene, 511 N.W.2d at 732. The supreme court found that the rationale in Eisert applied even though the school district alleged more than just strict liability claims. Id. The court concluded that the school district could not obtain punitive damages because it only suffered property damage:

We believe now as we did in Eisert that denying punitive damages where a plaintiff only suffers property damage reflects the greater importance society places on protecting people.

Id. Appellant contends the district court erred by not limiting the Keene holding to products-liability cases. We disagree.

Initially we note that this court has interpreted Keene differently in two opinions. In Soucek v. Banham, 524 N.W.2d 478, 480 (Minn.App.1994), review denied (Minn. Jan. 25, 1995), the court broadly interpreted Keene and applied the personal injury requirement to non-products actions. In Molenaar v. United Cattle Co., 553 N.W.2d 424, 428 (Minn.App.1996), the court concluded that the personal injury requirement only applied to the availability of punitive damages in products-liability actions. We find Soucek’s interpretation of Keene to be more persuasive.

In Soucek, the court held that a pet owner could not recover punitive damages when police officers shot and killed his pet because he did not suffer personal injury. 524 N.W.2d at 480. The court construed Keene as holding that personal injury is a necessary antecedent to a claim for punitive damages, stating, “[t]he supreme court specifically held in Keene that, regardless of the liability theory, punitive damages are not allowed where a plaintiff suffers no personal injury.” Id.

We agree with the Soucek court’s construction of Keene. First, as noted by the supreme court, the remedy of punitive damages concerns the 'vital state interest of protecting persons against personal injury.’ ” Keene, 511 N.W.2d at 732 (quoting Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 737 (Minn.1980)). We conclude that this vital interest is the same regardless of the theory of liability involved. Second, .the specific factual context of the Keene holding supports the Soucek court's broad interpretation. In Keene, the plaintiffs alleged both products-liability and common-law tort claims but the supreme court did not limit its holding to only the strict products-liability claim. 511 N.W.2d at 732. Moreover, although the allegations in Keene involved the health hazards of asbestos, the supreme court reversed an award of punitive damages because there was no actual personal injury. Id. at 729, 732. These facts suggest that regardless of the liability theory, the preeminent concern is whether personal injury is involved. Appellant argues that the plain language of the court’s syllabus in Keene makes injury a prerequisite for punitive damages only if a party is injured by a product. But we note that the body of the opinion includes broad language indicating that personal injury is required regardless of the theory of liability. Id. at 732.

Appellants also argue that Keene was overturned by Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271 (Minn.1995). We disagree. Keene was not even mentioned in Phelps. Moreover, Phelps addresses only whether both punitive damages and double actual damages are allowed in a Minnesota Human Rights Act case. The court’s analysis focused on whether awarding double actual damages and punitive damages in the same case was duplicative, and not on whether personal injury was required for punitive damages. Id. at 276-77.

We conclude that pursuant to the supreme court’s holding in Keene, a party may not recover punitive damages absent a personal injury.

DECISION

The district court did not err in determining that appellants’ allegations of severe emotional distress were insufficient as a matter of law. The district court properly concluded that punitive damages were not available in the absence of personal injury.

Affirmed.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    The ST. PAUL COMPANIES, Appellant, v. Holly VAN BEEK, Respondent.
    No. C6-99-1764.
    Court of Appeals of Minnesota.
    April 18, 2000.
    Review Denied June 27, 2000.

    Steven L. Theesfeld, Yost & Baill, LLP, Minneapolis, MN (for appellant).
    Hal A. Shillingstad, Cory A. Kallheim, Flynn & Gaskins, LLP, Minneapolis, MN (for respondent).
    Considered and decided by WILLIS, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.

       STRINGER, J., took no part in the consideration or decision of this case.

   OPINION

HALBROOKS, Judge.

This is an appeal from the district court’s summary judgment in favor of respondent. Respondent negligently started a fire while in the course of her employment and appellant insurer covered the loss to the building in accordance with the fire insurance policy it had issued to respondent’s employer’s landlord. The district court found that appellant’s subro-gation claim was barred by this court’s decision in United Fire & Cas. Co. v. Bruggeman, 505 N.W.2d 87 (Minn.App.1993), review denied (Minn. Oct. 19, 1993). Appellant contends that Bruggeman does not apply to this case. We affirm.

FACTS

Respondent Holly Van Beek (Van Beek) was employed by Paragon Electronics, Inc. (Paragon) as a messenger and bookkeeper. Paragon leased office and retail space at the Avalon Mall ins White Bear Lake, Minnesota. Appellant The St. Paul Companies (StPaul) provided fire insurance to the mall’s owner.

On the morning of November 22, 1994, Van Beek stopped by the Paragon office to pick up some tools to be delivered to another location. Van Beek emptied the ashtray from her vehicle into a wastebasket located under a workbench at the rear of the store. She then left the building to make the delivery. Another Paragon employee arrived at the store approximately one-half hour after Van Beek had left and discovered a fire. The White Bear Lake Fire Department extinguished the fire and concluded that the fire started in the wastebasket in the rear of the store.

St. Paul covered the loss and paid out $100,639.21 for damages resulting from the fire. St. Paul filed a subrogation lawsuit against Van Beek alleging that she is personally liable for the property damages caused by the fire. Van Beek moved for summary judgment. The district court granted Van Beek’s motion and dismissed St. Paul’s claims with prejudice. The district court reasoned that our decision in United Fire & Cas. Co. v. Bruggeman, 505 N.W.2d 87 (Minn.App.1993), review denied (Minn. Oct. 9, 1993), barred St. Paul’s sub-rogation claim. St. Paul appeals from the district court’s grant of summary judgment to Van Beek and the dismissal of its claim.

ISSUE

Did the district court err in granting respondent’s motion for summary judgment and dismissing appellant’s claim?

ANALYSIS
On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The parties agree that there are no material facts in dispute. Therefore, the only question is whether the district court erred in its application of the law. Id. A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).

Under general principles of insurance law, an insurer cannot subrogate against its own insured. See United States Fire Ins. Co. v. Ammala, 334 N.W.2d 631, 634 (Minn.1983). This court has extended that general principle to prohibit an insurer from subrogating against its insured’s tenant who negligently starts a fire absent a written agreement requiring the tenant to carry its own fire insurance. United Fire & Cas. Co. v. Bruggeman, 505 N.W.2d 87 (Minn.App.1993), review denied (Minn. Oct. 19, 1993). In Bruggeman, the owners of a gift and craft supply business were found to have negligently caused a fire. Id. at 88. We held that they were co-insureds under the landlord’s fire policy because both parties “had an insurable interest in the property — the landlord a fee interest and the tenant a possessory interest.” Id. at 89.

The district court found that Brug-geman applied to this case. It found that because Van Beek was acting within the scope of her employment, a finding St. Paul does not contest, her actions were imputed to Paragon. Since Paragon was the insured’s tenant, the district court reasoned that both Paragon and Van Beek were immune from subrogation. See id. (holding tenants are coinsureds with landlords and, therefore, are not subject to subrogation action).

St. Paul challenges the district court’s application of Bruggeman to this case. It contends that even if Bruggeman did make Paragon immune from subrogation, it does not provide protection to Paragon’s employees. Although St. Paul is correct in its assertion that Bruggeman has not been explicitly extended to cover a tenant’s employees, we hold in this case that it does.

In Blohm v. Johnson, 523 N.W.2d 14, 17 (Minn.App.1994), this court refused to extend Bruggeman to negligent third parties engaged in a joint enterprise with the insured’s tenant. Id. But the court implied that Bruggeman would provide protection to the insured’s tenant’s employees. Id.

Roscoe argues that Bruggeman should be extended to prevent insurers from pursuing subrogation claims against agents of a negligent tenant. Roscoe fails to recognize that Johnson is likewise an agent of Roscoe. Roscoe was not a tenant, did not assist in paying Johnson’s rent, and was not employed by Johnson.

Id. (emphasis added). We recognize that the language quoted above is dicta and not the holding of Blohm. But we agree with the implication and expressly hold in this case that the rule set forth in Bruggeman prevents a landlord’s fire insurer from bringing a subrogation action against a tenant’s employee who negligently starts a fire.

Our extension of Bruggeman to cover the negligent acts of a tenant’s employees coincides with the policy rationale of Bruggeman and the underlying general principles of law. The policy behind the Bruggemcm decision is clearly articulated within the opinion itself.

The insurer knows the risk it is undertaking when insuring a rental property. It insures the building for the use for which it is intended. While it may not have control over who the individual tenants are, it can increase its premiums to reflect increased risks presented by changing tenant use.

Bruggeman, 505 N.W.2d at 89. In the instant case, St. Paul knew it was insuring a commercial structure. Although it did not have the ability to pick the tenants, it knew that commercial tenants would lease the building and it was in a position to adjust its premiums to cover its risk. Additionally, because Paragon was a corporation, it was only able to act through its employees and agents. See Thomas Oil, Inc. v. Onsgaard, 298 Minn. 465, 469, 215 N.W.2d 793, 796 (1974) (recognizing “that a corporation can act only through its agents and employees and the acts of negligent employees are actually and substantially the acts of the corporation”). The acts of Paragon’s employees that were within the scope of employment were the acts of Paragon. Because Van Beek’s negligent act was within the scope of her employment, her negligence is Paragon’s negligence.

If St. Paul were permitted to circumvent Bruggeman by suing Van Beek individually, the purpose and policy behind the Bruggeman decision would be defeated. We hold that the district court did not err in its application of the law by finding that our decision in Bruggeman barred St. Paul’s subrogation claim against Van Beek.

St. Paul also contends that Osborne v. Chapman, 574 N.W.2d 64 (Minn.1998), supports its assertion that Bruggeman is not controlling in this case. We find Osborne inapposite to this case. Osborne involves a direct claim by the landlord against a tenant and not a subrogation claim brought by an insurer. Id. at 65. In the instant case, St. Paul has paid a claim under the fire policy issued to the Avalon Mall and is seeking to subrogate against Van Beek. This is the factual scenario decided by Bruggeman. The only difference between the instant case and Bruggeman is that the negligent actor was an employee of the tenant instead of an owner of the tenant. See Bruggeman, 505 N.W.2d at 87 (indicating that the Brugge-mans were sued in their capacity as business owners). This distinction is insignificant in this case, and we refuse to depart from our holding in Bruggeman.

DECISION

Because we hold that our decision in Bruggeman prevents an insurer from maintaining a subrogation action against its insured’s tenant’s employee, we affirm the district court’s grant of summary judgment in favor of Van Beek and its dismissal of St. Paul’s claims.

Affirmed.


author: KLAPHAKE, Judge.

text:
    In the Matter of the WELFARE OF H.S.H., Child.
    No. C0-99-1291.
    Court of Appeals of Minnesota.
    April 25, 2000.
    Mike Hatch, Attorney General, St. Paul and Ross Arneson, Blue Earth County Attorney, Mark A. Lindahl, Assistant County Attorney, Mankato, for respondent county.
    John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, CRIPPEN, Judge, and SHUMAKER, Judge.
   OPINION

KLAPHAKE, Judge.

H.S.H. appeals from a judgment certifying her as an adult in connection with several check forgery offenses she committed in October 1998, when she was 17 years old. She argues that the district court abused its discretion in certifying her because the state failed to prove by clear and convincing evidence that retaining her in the juvenile system would not serve public safety, as required by Minn. Stat. § 260.125 (1998).

Because the state failed to establish that appellant is a present or future threat to public safety, we reverse the district court’s certification decision.

FACTS

Prior History

Appellant has had extensive contact with the juvenile system that began when she was 12 and placed in St. Joseph’s Home for Children, after she was found to be a child in need of protection and services. After she was discharged from that program due to inappropriate behavior and placed in another residential treatment center, she committed her first and, before the current offenses, her only other felony offense, aiding and abetting second-degree burglary.

Thereafter, appellant was asked to leave several shelters, group homes, and a foster care arrangement due to “inappropriate behavior.” She committed several additional misdemeanor offenses, including disorderly conduct, criminal damage to property, and three fifth-degree assaults. In August 1995, appellant was placed at the Minnesota Correctional Facility in Sauk Centre, “due to her delinquent behavior and running away from numerous out-of-home placements.”

Appellant was paroled in January 1996, but returned to Sauk Centre in February 1996, after she was charged with a second offense of disorderly conduct. Between August 1996 and March 1998, appellant violated parole several times; she was placed in detention centers, returned to Sauk Centre, and underwent inpatient chemical dependency treatment.

In early 1998, appellant learned she was pregnant. In a psychological assessment conducted at that time, she was diagnosed with conduct disorder and bipolar disorder. She was released from Sauk Centre in March 1998 and placed on parole.

Current Offenses

Between October 5 and 8, 1998, appellant deposited three checks totaling $10,500 into her credit union savings account. The checks, for $5,000, $3,500, and $2,000, were drawn on a closed account owned by Jamieson Martinson.

Appellant then made several withdrawals totaling $6,500 from a second branch of the credit union. Each time, she went to a different teller, and none of the tellers apparently verified whether the checks drawn on Martinson’s account had cleared before they allowed appellant to withdraw the funds in cash or cashier’s checks.

On October 8, 1998, the president of the credit union contacted police after appellant withdrew $500 from her savings account and obtained five cashier’s checks for $500 each. Appellant was arrested when she tried to cash one of the cashier’s checks. She was later charged with eight felony counts of check forgery and theft.

Behavior since Cuwent Offenses

Because appellant was on parole at the time of the current offenses, she was returned to Sauk Centre in early December 1998. On December 24, 1998, she was released with instructions to find employment and a place to live.

Since her release in December 1998, appellant has remained law abiding and followed the terms of her parole. At the time of the certification hearing in June 1999, she was working 40 hours per week at Rainbow Foods, renting an apartment from her mother, caring for her 11-month-old daughter, and attending modeling school. Appellant is now 18 years old.

Certification Hearing

In her court-ordered certification study and testimony at the certification hearing, Kellie Ludescher, a Blue Earth County probation officer who interviewed appellant once for approximately two hours, recommended that appellant be certified as an adult primarily because appellant had exhausted all available options in the juvenile system and there was no programming currently available to her. Lu-descher admittedly placed more weight on appellant’s past behavior than on her present behavior and agreed that appellant had done well since her release from Sauk Centre in December 1998. Ludescher conceded that appellant is presently not a threat to public safety.

Tanya Boehler, a Nicollet County probation officer who has worked with appellant for five years, testified that although appellant has a long history of noncompliance, she is currently doing quite well. Boehler did not support certifying appellant as an adult and did not believe that she was a public safety risk.

Kellie Manderfeld, a Nicollet County adolescent case coordinator who has worked with appellant for almost three years, testified regarding appellant’s progress during the six months prior to the hearing:

[Appellant] is working steadily for the first time. She’s being a very caring, competent, above competent mother to her young daughter. She reaches out for help when she needs it. She seeks advice in her decisions. She obtained her driver’s license, * ⅜ * without really too much help from anybody else. [S]he’s responsible with her bills as much as she can be on a limited income. She helps others without thinking twice about it.

Manderfeld believed that appellant’s change in character was honest and sincere. Manderfeld explained that, unlike in the past, appellant has consistently demonstrated appropriate behaviors over the past six months. Manderfeld further testified:

Since [appellant] learned that she was pregnant she started to make improvements in her life and improve her decision making. I would say that there was a short period of time in the fall where she started to kind of fall off a little bit from frustration. [B]ut since returning from Sauk Centre in December and kind of getting that wake-up call, there’s been no turning back, she’s just been headed up.

Boehler testified that she did not believe that certification was appropriate or that appellant was a threat to public safety.

ISSUE

Did the trial court abuse its discretion by concluding that the state had proven by clear and convincing evidence that public safety would not be served by retaining appellant in the juvenile system?

ANALYSIS

A district court’s decision to certify a juvenile for adult prosecution is entitled to “considerable latitude.” In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn.App.1989), review denied (Minn. Mar. 17, 1989). This court will not reverse a juvenile certification order unless the district court’s findings are “clearly erroneous so as to constitute an abuse of discretion.” In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn.App.1996), review denied (Minn. Aug. 6,1996).

This is a nonpresumptive certification case because, although appellant was nearly 18 at the time of the felony-level offenses, those offenses would not result in a presumptive commitment to prison under the sentencing guidelines. See Minn.Stat. § 260.125, subd. 2a. In a nonpresumptive case, the court may order certification only if the state proves “by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety.” Minn.Stat. § 260.125, subd. 2(6)(ii); see also In re Welfare of D.M.D., 607 N.W.2d 432, 438 (Minn.2000) (in non-presumptive certification cases, prosecutor must prove public safety “will be served by either certifying a juvenile to adult court or by granting an EJJ designation”).

In determining whether public safety is served, courts are directed to consider the following statutory factors:

(1) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim;
(2) the culpability of the child in committing the alleged offense, including the level of the child’s participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines;
(3) the child’s prior record of delinquency;
(4) the child’s programming history, including the child’s past willingness to participate meaningfully in available programming;
(5) the adequacy of the punishment or programming available in the juvenile justice system; and
(6) the dispositional options available for the child.

Minn.Stat. § 260.125, subd. 2b. The statute further directs the court to give “greater weight” to factors (1) and (3), the seriousness of the offense and the child’s prior record of delinquency. Id.

These factors, which address the nature of the offense and the circumstances of the child, are intended to assess whether a juvenile presents a risk to public safety and thus aim to predict whether a juvenile is likely to offend in the future. Although some of the factors examine the juvenile’s past behavior and programming failures, others must be read to allow consideration of the juvenile’s current conduct. In the end, the factors must show that a risk to public safety exists because the juvenile’s behaviors are likely to continue.

Seriousness of Offense and Culpability of Juvenile

The district court found that appellant’s commission of several felony-level offenses over a three-day period required some degree of sophistication and planning; the court further found that appellant admitted her culpability in carrying out these offenses. The court failed, however, to explain how these factors supported certification in terms of community protection.

Certification cases generally involve violent crimes against persons, such as murder or assault. See, e.g., In re Welfare of D.T.H., 572 N.W.2d 742 (Minn.App.1997) (juvenile certified on first-and second-degree murder charges), review denied (Minn. Feb. 19, 1988). The risk to public safety in these types of cases is clear. Few cases have reported certification based on a property offense. See, e.g., In re Welfare of C.L.S., 558 N.W.2d 12, 15-16 (Minn.App.1997) (juvenile certified on third-degree burglary charge), rev’d on other grounds by D.M.D., 607 N.W.2d at 438; In re Welfare of K.J.K., 357 N.W.2d 117, 118 (Minn.App.1984) (juvenile certified on unauthorized use of motor vehicle charge). In both of these cases, the juveniles showed patterns of escalating offenses, and the state presented evidence in the form of expert opinions from which it could be inferred that these behaviors were likely to continue. Here, none of the experts could testify that appellant is likely to continue with criminal activity or that she presents a current threat to public safety.

Prior Record of Delinquency

The district court found that appellant has an extensive prior record of delinquency. Again, the court failed to address how this prior record presents a threat to public safety. Appellant committed her only other felony, aiding and abetting second-degree burglary, six years ago, when she was 12. And prior to the current offenses, her most recent offense, disorderly conduct, occurred in early 1996 when she was 15 years old. Appellant’s prior history fails to show deeply ingrained, escalating criminal behavior that presents a threat to public safety.

Prior Programming

The district court found that appellant has an extensive history of noncompliance and failures at numerous types of juvenile treatment and dispositional programs. But even the district court recognized that she has been doing exceptionally well since she was released from Sauk Centre in December 1998. Again, this factor fails to support the conclusion that appellant is a present or future threat to public safety.

Adequacy of Programming and Dispo-sitional Options

In some cases, a strong need for treatment that is not available or would require more time to complete than that remaining under juvenile jurisdiction may weigh in favor of certification. Here, the state presented no evidence that appellant currently needs any type of out-of-home placement or that she requires anything other than supervised probation to protect the public, an alternative that can be provided in the juvenile system. To the contrary, the evidence demonstrates that appellant has been restored to law-abiding conduct.

Thus, all the evidence regarding appellant’s current behavior and the recommendations of those professionals who have known her and worked with her for a number of years show that she is not a threat to public safety. Had the state presented evidence in the form of current psychological data to suggest that appellant’s behaviors are likely to escalate and that she needs additional treatment that cannot be provided by the juvenile system, the state could have met its burden by clear and convincing evidence. Cf. D.M.D., 607 N.W.2d at 438 (EJJ designation supported by opinions of state’s experts); In re Welfare of R.D.W., 407 N.W.2d 113, 116-17 (Minn.App.1987) (under prior law, which allowed certification if juvenile unsuitable for treatment or threat to public safety, determination must be based on psychological data or history of misconduct, as well as juvenile’s age, level of maturity, and seriousness of offense), review denied (Minn. July 15, 1987). Because insufficient evidence was presented to support the conclusion that retaining appellant in the juvenile system does not serve public safety, we reverse the district court’s certification order.

DECISION

The district court’s certification order is reversed.

Reversed.

      . For purposes of a certification hearing, the charges against the juvenile are presumed to be true. In re J.L.B., 435 N.W.2d 595, 598 (Minn.App.1989), review denied (Minn. Mar. 17, 1989).


author: SCHUMACHER, Judge. PETERSON, Judge

text:
    WORLD CHAMPIONSHIP FIGHTING, INC., Appellant, v. James JANOS, et al., Respondents.
    No. C9-99-1547.
    Court of Appeals of Minnesota.
    April 25, 2000.

      Mark A. Levine, Davis, Dodd, Levine & Miller, Ltd., Minneapolis, for appellant.
    David Bradley Olsen, Henson & Efron, P.A., Minneapolis, for respondents.
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

SCHUMACHER, Judge.

World Championship Fighting, Inc. (WCF) appeals the district court’s dismissal of a breach of contract claim for lack of subject matter jurisdiction. We affirm.

FACTS

WCF sued the Jesse Ventura gubernatorial campaign, Governor Ventura (a/k/a James Janos), and two campaign volunteers in Hennepin County Conciliation Court for breach of contract. After a trial, the conciliation court rendered judgment for defendants. WCF served and filed papers to remove the case to district court for a trial de novo. The removal papers were signed by James Koch, who is identified on the conciliation court complaint as WCF’s president and who is not an attorney. Defendants moved to have the case dismissed for lack of jurisdiction, contending that since WCF filed the removal papers without an attorney, the papers were ineffective and the court therefore never acquired jurisdiction. The district court granted the motion and dismissed the case. WCF appeals.

ISSUE

May a corporation not represented by counsel file a notice of removal (appeal) from conciliation court?

ANALYSIS

Whether a district court has subject matter jurisdiction is a legal question subject to de novo review on appeal. Humphrey v. $1109 in U.S. Currency, 539 N.W.2d 1, 2 (Minn.App.1995), review denied (Minn. Dec. 20,1995).

The district court concluded that WCF’s removal was not timely perfected because it was made by a non-lawyer. The district court reasoned that filing the papers to remove the case from conciliation court to district court constituted an “appearance” in district court. See Minn. R. Civ. Pro. 5.01 (“A party appears when that party serves or files any paper in the proceeding.”). Because a corporation may not make an appearance in district court unless it is represented by counsel, Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 754 (Minn.1992), the court reasoned that the removal papers — filed without counsel — were ineffective, thus depriving the court of jurisdiction.

Removing a case from conciliation court is comparable to filing a complaint in district court. The district court observed as much:

A demand for removal from Conciliation Court is a request for a trial de novo in District Court and is basically in the same procedural posture as any other action commenced in District Court by summons and complaint.

We perceive no reason why a corporation unrepresented by counsel should be able to commence a district court action by removing a case from conciliation court when it is not allowed to do so by filing a complaint. In Leek v. American Express Property Cas., 591 N.W.2d 507 (Minn.App.1999), review denied (Minn. July 7, 1999), we dealt with a similar contention. In that case, the appellant claimed that one of the no-fault arbitration rules allowed a party to initiate a civil action without complying with the civil procedure rules governing service of process. Id. at 509. We rejected the contention, holding that the same rules apply to all civil actions in Minnesota, subject only to exceptions contained in the rules themselves:

Even if Minn. R. No-Fault Arb. 29 provided that a party may initiate an action in district court without complying with the rules of civil procedure, the civil procedure rules would nonetheless apply. Minn. R. Civ. P. 2 indicates that there is one form of action, known as a “civil action.” Minn. R. Civ. P. 2. This one form of action includes every proceeding before a competent court in the due course of the proper administration of justice that is to result in any determination. State v. Nelson, 189 Minn. 87, 89-90, 248 N.W. 751, 752 (1933). The Minnesota Rules of Civil Procedure “govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.” Minn. R. Civ. P. 1.

Id. at 510. Similarly, we do not believe the legislature intended that some corporations would be allowed to institute district court actions without aid of counsel while others would not, depending only on whether the case began in conciliation court.

Our conclusion is buttressed by the Minnesota Supreme Court’s decision in Nicollet, where the appellant corporation argued that because its case had originated in conciliation court, a statute gave it the right to prosecute the action in district court without an attorney. 486 N.W.2d at 755. The Supreme Court disagreed, holding that the statute did not give such a right, and also that even if it purported to do so, it would be ineffective:

[Ljegislative enactments which purport to authorize certain classes to practice law in the courts of this state are not controlling upon the judiciary. As such, we reaffirm our conviction that a corporation must be represented by a licensed attorney when appearing in district court.

Nicollet, 486 N.W.2d at 756. We believe the supreme court’s unwillingness to allow a corporation to prosecute an action in district court without an attorney, even though the action was removed from conciliation court, indicates that neither should we allow a corporation to remove a conciliation court action to district court without an attorney.

DECISION

Because an unrepresented corporation may not file the papers necessary to remove an action from conciliation court to district court, WCF could not remove its case to district court without being represented by an attorney. The district court was correct to conclude that it lacked jurisdiction over WCF’s case.

Affirmed.

PETERSON, Judge

(dissenting)

I respectfully dissent. I disagree with the majority’s conclusion that by filing the demand for removal, WCF made an unrepresented appearance in district court.

To remove a case from conciliation court to district court, a party must do four things: serve on the opposing party or the opposing party’s lawyer a demand for removal of the cause to district court; file the original demand for removal with proof of service; file an affidavit stating that the removal is made in good faith; and pay the removal fee, along with any jury trial fees that' may apply. Minn. R. Gen. Pract. 521(b). When these four things have been done, .the removal is perfected and the case is transferred to district court:

(d) Removal Perfected; Vacating Judgment; Transmitting File. When all removal papers have been filed properly and all requisite fees paid as provided under Rule 521(b), the removal is perfected, and the court shall issue an order vacating the order for judgment in conciliation court, and the whole contents of the conciliation court file of the cause shall be filed in district court.

Minn. R. Gen. Pract. 521(d).

This also means, however, that until these four things are done, and the removal is perfected, the case remains in conciliation court. Because a party files its demand for removal before the removal is perfected and, therefore, before the case is transferred to district court, filing the demand for removal cannot be an appearance in district court. Consequently, a corporation need not have counsel to file a demand to remove a case from conciliation court to district court.

Because filing its demand for removal was not an improper appearance in district court, WCF’s demand was timely and its removal was perfected. I would therefore reverse the district court’s decision that it lacked subject matter jurisdiction over WCF’s lawsuit.


author: DORIS 0. HUSPENI, Judge.

text:
    Terrance Lee GENIN, Appellant, v. 1996 MERCURY MARQUIS, VIN # 2MEBP95F9CX644211 LICENSE NO. MN 225 NSG, Respondent.
    No. C7-99-1577.
    Court of Appeals of Minnesota.
    April 25, 2000.
    Review Granted June 27, 2000.

      Charles Alan Ramsay, Ramsay Law Firm, Roseville (for appellant).
    Scott Michael Lepak, James Hoeft, Bar-na, Guzy & Steffen, Ltd., Coon Rapids (for respondent).
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and HUSPENI, Judge.
   OPINION

DORIS 0. HUSPENI, Judge.

This is an appeal from a district court order holding appellant Terrance Lee Ge-nin responsible for all towing and storage expenses associated with the seizure of his vehicle. Because the seizing agency acquires all “right, title, and interest” in the vehicle under Minn.Stat. § 169.1217, subd. 3 (1998), appellant contends the City of Centerville is responsible for the towing and storage fees. Appellant also contends that: (1) requiring him to pay storage fees, which exceed the value of his vehicle, will lead to an unenforceable, absurd result, and (2) Minn.Stat. § 169.1217, subd. 4 (1998), clearly demonstrates the legislature’s intent to make whole successful plaintiffs in a vehicle forfeiture proceedings. Because the statute provides a procedure that appellant could have invoked, but did not, to avoid towing and storage expenses while the vehicle forfeiture action was pending, we affirm.

FACTS

On August 22, 1998, appellant was arrested for DWI and the Circle Pines-Lexington Police Department, which provides police services to the City of Centerville, seized his 1996 Mercury Marquis. Because appellant had been convicted of DWI and/or had his driver’s license revoked for driving with an alcohol concentration of more than .10 in August 1997, he was charged with Count I: Driving with an Alcohol Concentration of Over .20, 2nd in Five Years; Count II: DWI, 2nd in Five Years; and Count III: Driving with an Alcohol Concentration of Over .10, 2nd in Five Years. While each offense is a gross misdemeanor, Count I was classified as an “enhanced” gross misdemeanor because it carried an increased penalty of two years in jail.

On March 11, 1999, the Minnesota Supreme Court declared enhanced gross-misdemeanor sentencing laws unconstitutional because they sanction conviction of crimes carrying two-year sentences without the benefit of a twelve-person jury trial as required by the Minnesota Constitution. See Baker v. State, 590 N.W.2d 636, 639-40 (Minn.1999) (holding that any crime punishable by imprisonment of more than one year is a felony requiring a 12-person jury trial). On March 15,1999, appellant pleaded guilty to and was convicted of Count III, Driving with an Alcohol Concentration of Over .10, 2nd in Five Years. The state dismissed all other charges, including Count I, Driving with an Alcohol Concentration of Over .20, 2nd in Five Years, the only unconstitutional “enhanced” offense.

In Minnesota, the motor vehicle forfeiture statute in DWI cases is only fully applicable when the vehicle’s owner is convicted of a “designated offense.” See Minn.Stat. § 169.1217, subd. 1(c) (1998) (defining “designated offense”). While the offense described in Count I is a “designated offense,” the offense to which appellant pleaded guilty is not. Therefore, appellant’s conviction did not trigger the applicability of the forfeiture statute. On July 14, 1999, the district court rescinded the forfeiture of appellant’s vehicle.

The district court’s order did not address the issue of responsibility for towing and storage expenses associated with the seizure of the appellant’s vehicle, however. When appellant went to retrieve his vehicle, he was informed that he owed storage fees in excess of $5,500. In response to the demand for payment, appellant requested that the district court order the City of Centerville to pay the accrued storage fees. On August 20, 1999, the district court found appellant responsible for the towing and storage fees associated with the seizure of his vehicle. This appeal followed.

ISSUE

Did the district court err in interpreting Minn.Stat. § 169.1217 (1998) to require appellant to pay the towing and storage expenses associated with the seizure of his 1996 Mercury Marquis?

ANALYSIS

Appellant contends Minn.Stat. § 169.1217 (1998) does not require that he bear the responsibility for all costs associated with storage of his vehicle while the forfeiture action was pending in district court. Statutory construction and interpretation raises a question of law subject to de novo review. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). A reviewing court is not required to give deference to a trial court’s decision on a purely legal issue. Frost- Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

A. City’s Possession and “Ownership”

Because the seizing agency acquires “right, title and interest” in the seized vehicle, appellant contends the city bears the responsibility for paying the storage fees. See Minn.Stat. § 169.1217, subd. 3. The district court found that although the city owned the vehicle pending the resolution of the foreclosure proceedings, the bonding provision in the foreclosure statute demonstrates the legislature’s clear intention to impose the responsibility for towing and storage fees on the vehicle’s original owner.

Minn.Stat. § 169.1217, subd. 4, states:

If the owner of a vehicle that has been seized under this section seeks possession of the vehicle before the forfeiture action is determined, the owner may, subject to the approval of the appropriate agency, give security or post bond * * * in an amount equal to the retail value of the seized vehicle. On posting the security or bond, the seized vehicle may be returned to the owner only if a disabling device is attached to the vehicle. The forfeiture action shall proceed against the security as if it were the seized vehicle.

The district court explained that the bonding provision was intended to allow seized-vehicle owners to regain possession of their vehicle, albeit in a disabled state, to avoid storage fees likely to accrue while the forfeiture action is pending. We agree with the analysis of the district court.

Under the bonding provision of the forfeiture statute, appellant was entitled to give security or post a bond to regain possession of his vehicle at any time after its seizure. By doing so, he would have avoided the accrual of storage fees while the foreclosure action was pending. But appellant did not do so.

It is clear that the City of Centerville acquired “ownership” at the time of the seizure of the vehicle. See Minn.Stat. § 169.1217, subd. 3 (stating that seizing agency acquires all “right, title, and interest”). We find no merit, however, in appellant’s claim that the city, as the “owner” of the vehicle, bears the responsibility for paying storage fees during the forfeiture proceedings. We conclude instead that the bonding provision, although not specifically addressing storage fees, provides an avenue for one in appellant’s position to regain possession of the vehicle while the forfeiture action is pending. While the vehicle in its disabled condition might have been of little practical use to appellant, his possession of it under the bonding provision would have assured that storage fees would not have continued to accrue.

We conclude that the legislature contemplated the situation faced by appellant while he awaited final determination of the forfeiture action. Appellant’s failure to proceed under the bonding provision does not shift to the city the responsibility to pay the storage fees.

B. Absurd Result

Appellant next argues that it is absurd to hold him responsible for the storage fees because those fees exceed the value of his vehicle. The district court rejected this argument because the “bonding provision prevents an absurd result” by

allowing] the vehicle owner to get possession of the vehicle ⅜ * ⅜ and move it to another location so as to avoid accumulation of any storage fees. Appellant did not take advantage of the opportunity to avoid storage fees under the bonding provision.

Relying on Sevcik v. Commissioner of Taxation, 257 Minn. 92, 100 N.W.2d 678 (1959), appellant argues that the Minnesota Supreme Court will avoid an interpretation of a statute that will lead to an absurd result if the statutory language will reasonably bear another construction. We cannot find another construction. It is unfortunate that appellant’s inaction resulted in storage fees that exceeded the value of his vehicle. Again, however, the statute details a procedure to avoid such costs. Appellant cannot complain that his inaction led to an unenforceable, absurd result.

C. Legislative Intent to Make Successful Plaintiffs Whole

Finally, appellant contends that the legislature, in enacting Minn.Stat. § 169.1217, subd. 7a(g), intended to make the vehicle owner whole for any and all expenses associated with an improper vehicle forfeiture. We cannot agree. Subdivision 7a(g) reads in relevant part:

If a demand for judicial determination of an administrative forfeiture is filed ⅜ * * and the court orders the return of the seized vehicle, the court shall order that filing fees be reimbursed to the person who filed the demand. In addition, the court may order the payment of reasonable costs, expenses, and attorney fees under section 549.21, subdivision 2.

Under the statute, the court must order reimbursement of the filing fee in the event the seized vehicle is returned to its owner. _ In addition, the court, in its discretion, may order reasonable costs, expenses, and attorney fees.

Appellant’s contention that the statutory language is broad enough to include payment of storage fees is without merit. Where the words of law are clear and unambiguous, the court should not disregard the letter of the law under the pretext of pursuing its spirit. See Minn. Stat. § 645.16 (1998); Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (explaining that courts must give effect to the plain meaning of a statute’s unambiguous language). Courts are prohibited from adding words to a statute or reading into a statute what was either intentionally or inadvertently omitted by the legislature. Tracy State Bank v. Tracy-Garvin Co-op., 573 N.W.2d 393, 395 (Minn.App.1998); see also Phelps v. Commonwealth Land Title Ins., 537 N.W.2d 271, 274 (Minn.1995) (prohibiting statutory construction where legislative intent is manifested in plain unambiguous language). Here, the language of Minn.Stat. § 169.1217, subd. 7a(g), is clear and unambiguous. The legislature could have addressed the payment of storage expenses, but it did not. We cannot extend statutory relief to include reimbursement for or payment of such expenses.

Although the district court correctly interpreted Minn.Stat. § 169.1217, we are not insensitive to the unfortunate result visited upon appellant by that interpretation. The questions that appellant has raised, however, are questions more appropriately addressed to the legislature than to the courts.

DECISION

The district court properly interpreted the language of Minn.Stat. § 169.1217 (1998) to require appellant to pay the storage expenses associated with the seizure of his Mercury Marquis.

Affirmed.

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

      . There is some question on the model year of appellant's vehicle. Respondent describes it as 1986.

      . The Circle Pines-Lexington police department contracts with Auto-Medics Service for towing and storage of vehicles seized under the forfeiture statute. The Mercury remained wilh Auto-Medics until June 25, 1999, at which time towing and storage fees totaled more than $5,500.

      .Appellant conceded at oral argument that he is responsible for towing charges and those charges are not in issue on appeal.

      . Although appellant suggests the City of Circle Pines was the seizing agency, the Circle Pines-Lexington Police Department provides police services to the City of Centerville.

      . We leave for another day the import of the language in Minn.Stat. § 169.1217, subd. 4, requiring agency approval before security may be given and bond posted by the owner, and what effect an agency's refusal may have upon responsibility for payment of storage fees.


author: AMUNDSON, Judge.

text:
    R.L. HEXUM & ASSOCIATES, INC. et al., Appellants, v. ROCHESTER TOWNSHIP, BOARD OF SUPERVISORS, Respondent.
    No. C0-99-1615.
    Court of Appeals of Minnesota.
    April 25, 2000.

      Michael McCarthy and Howard Roston, Maslon, Edelman, Borman & Brand, Minneapolis, for appellants.
    C. Todd Keobele, Peter B. Tiede, and Nancy A. Proffitt, Murnane, Conlin, White & Brandt, St. Paul, for respondent.
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

AMUNDSON, Judge.

Appellants R.L. Hexum and Associates, Inc., and David T. Bishop challenge the district court’s grant of summary judgment to respondent Rochester Township Board of Supervisors. Appellants argue that the district court erred in (1) concluding that the proposed use was consistent with local ordinances governing farming and uses “similar to” general farming and (2) precluding the submission of new evidence during review of the municipal proceedings. We affirm.

FACTS

In October 1997, Seneca Foods Corporation (Seneca) applied to the Rochester Township Planning and Zoning Commission (commission) for two conditional use permits to expand wastewater-spraying operations in connection with its canning plant. Seneca currently operates a similar “sprayfield” on a parcel of land in a district zoned A-4 (agricultural-urban expansion). On that parcel, Seneca sprays nitrogen-bearing wastewater collected from its plant, irrigating approximately 125 acres of land, which is planted primarily with long-season grasses. In addition to local zoning board approval, disposal of waste-water also requires a National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit from the Minnesota Pollution Control Agency (MPCA). Seneca’s 1997 conditional use permit (CUP) applications, which were consolidated into one permit covering three parcels, were intended to allow it to expand its sprayfield operations to two more parcels of land, also zoned A-4, adjacent to the existing sprayfield operated by Seneca since 1990.

Appellants R.L. Hexum and Associates, Inc., and David T. Bishop as trustee for the David T. Bishop Trust and the Beatrice H. Bishop Trust (“appellants”) own property adjacent to the two parcels for which Seneca sought approval. Appellants’ concern was that excess storm runoff due to increased groundwater saturation would have an adverse environmental impact. Appellants were also concerned about groundwater contamination and land use inconsistent with the surrounding area. Appellants and their attorney participated in all proceedings, commissioned engineering and hydrological reports, and provided experts and expert testimony. Appellants also hired a court reporter to record and transcribe each of the proceedings.

After two public hearings before the commission; a nonpublic hearing before the commission at which the commissioners questioned interested parties; and a public hearing before the board of supervisors, the commission accepted a staff report and recommendation to grant the CUP. The staff report and recommendation, upon which the commission based its decision, noted that the Olmsted County Land Use Plan, adopted by Rochester Township until the township could develop its own plan, encourages conservation practices such as sprayfields. Attached to the recommendation were reports from the Olmsted County Soil and Water District, the Minnesota Department of Transportation, the Olmsted County Planning Department, Northern Natural Gas, and the Olmsted County Environmental Commission. The staff report also noted that the Minnesota Department of Natural Resources and the MPCA had been consulted and provided comments. Some of the agencies submitted proposed conditions, but none recommended that the CUP be denied. The commission granted the CUP with thirteen conditions requiring that Seneca regularly monitor, test, and report on the impact of its activities. Appellants challenged the CUP before the Rochester Township Board of Supervisors (township board). The township board, after taking additional testimony, upheld the zoning commission’s decision to grant the consolidated CUP. The township board concluded that Seneca’s intended use of the parcels as sprayfields was “similar to farming” and was consistent with the land use plan.

Appellants challenged the CUP in district court, asking the court to consider information obtained in connection with Seneca’s NPDES/SDS permit application to the MPCA — an application that was referred to in the conditions attached to the CUP, but which had never been made a part of the record by the township board or the zoning commission. Appellants also sought to introduce (1) Corporation/Limited Partnership Farming Reports submitted to the Department of Agriculture by Seneca and (2) the MPCA’s findings of fact and conclusions on appellants’ request for an environmental assessment worksheet (EAW). The district court declined to consider evidence beyond the existing record, granted summary judgment for the township board, and upheld the determination that Seneca’s proposed use of the land is permitted under the interim ordinance. This appeal followed.

ISSUES

I. Did the district court err in concluding that Seneca’s proposed land use was “similar to” general farming and permitted under the conditional use provisions of the interim ordinance adopted by the township?

II. Did the district court err in concluding that it was reasonable under the interim ordinance, for the township board to grant a conditional use permit to allow Seneca to spray nitrogen-bearing wastewater from a canning facility onto undeveloped land?

III. Did the district court err in excluding new evidence and limiting its review to the record?

ANALYSIS

Summary judgment under Minn. R. Civ. P. 56.03 is appropriate when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Where, as here, the parties agree that there are no material issues of fact, this court first conducts a de novo determination of whether the district court has correctly interpreted the ordinance, Farmington Township v. High Plains Co-op., 460 N.W.2d 56, 58 (Minn.App.1990), giving only slight consideration to the interpretation by the governmental authority. See Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980) (holding that opinions of governmental authority on legal questions, while entitled to consideration, are not as persuasive as they would be on questions of fact).

I.

Section 5.00 (A) of the interim ordinance pertains to “[gjeneral farming, including the raising of crops, livestock, poultry, dairying, horticulture, * ⅜ ⅜ and similarly agriculturally related uses.” Olmsted County, Minn., Zoning Ordinance § 5.00(A)(3) (1995) [hereinafter Zoning Ord.]. Allowable conditional uses, which are governed by section 5.00(B)(16) (1995), include “[o]ther uses similar to those uses described * * * in Section 5.00(A).” Zoning Ord. § 5.00(B)(16) (emphasis added). Appellants argue that Seneca’s use of the land is not similar to general farming and that the ordinance, properly interpreted, actually prohibits the use of sprayfields in areas zoned A-4.

In determining whether a city’s interpretation of an ordinance is correct, courts generally “strive to construe a term according to its plain and ordinary meaning.” Frank’s Nursery, 295 N.W.2d at 608. Although the interim ordinance defines a “farm” as “[a] lot to be used for agricultural or horticultural uses,” it does not specifically define “farming.” Zoning Ord. § 2,02 (1995). Thus, appellants urge us to utilize the statutory definition of farming in provisions pertaining to corporate and partnership farming (CPF statute) and to find these provisions controlling. See Minn.Stat. § 500.24, subd. 2(a) (Supp.1999) (defining “farming” narrowly). Appellants argue that because Seneca’s proposed land use does not fall within the statutory definition of farming and because the statute prohibits corporations from engaging in or owning farmland, the district court’s conclusion that the proposed use was “similar to” general farming is contrary to law. Minn.Stat. § 500.24, subd. 3 (Supp.1999). Additionally, appellants argue that Seneca’s use cannot be deemed similar to general farming because “spraying” is specifically excluded from the definition of farming in the CPF statute. Minn.Stat. § 500.24, subd. 2(a). But appellants’ reference to the specific exclusion of “spraying or harvesting services” in the definition of farming in the CPF statute is misleading because that provision appears to address aerial crop spraying and not spraying of wastewater.

The CPF statute and the interim ordinance clearly have different purposes. The CPF statute was enacted to protect family farmers as a basic economic unit, but the interim ordinance was adopted to help guide a local governmental body in supervising and regulating land use within its jurisdiction. See Minn.Stat. § 500.24, subd. 1. (1998 & Supp.1999); Zoning Ord. § 1.02 (1995). It is undisputed that the CPF statute does not, in fact, apply. While it may have been reasonable for the township board to have used the CPF statute and its definition of farming as an aid in construing the plain and ordinary meaning of its own zoning ordinance, the township board chose not utilize that definition. The ordinance defines a “farm” as “[a] lot to be used for agricultural or horticultural uses.” Failure to use that particular definition does not render the township board’s interpretation per se unreasonable. Zoning Ord. § 2.02.

Under the plain and ordinary meaning of the words in the ordinance, “farming” would include using a lot for agricultural or horticultural purposes. We must decide whether the district court erred in concluding that the interpretation applied by the township board was reasonable. In so doing, we decline to restrict the township board’s authority to construe its own ordinance and reject appellants’ contention that Minn.Stat. § 500.24 should control the interpretation of the interim ordinance. Accordingly, we hold that the district court did not err in concluding that the township board’s decision was reasonable.

Appellants also contend that the proposed use is within the ordinance’s exclusion of “commercial or industrial uses primarily intended to serve agricultural uses.” See Zoning Ord. § 5.08(B)(1) (1995) (excluding section 5.00(B)(10) from conditional uses in A-4 districts). In support of their contention, they note that the CUP was granted under section 5.08(B)(1), with reference to section 5.00(B)(16), a “catchall” provision. Appellants object to the grant of the CUP under section 5.00(B)(16) and argue that section 5.00(B)(10) is a more specific and applicable provision. Noting that general rules of construction dictate that when provisions of a law are irreconcilable, specific provisions supersede more general ones, appellants reason that because section 5.00(B)(10) (commercial or industrial uses serving agriculture) is more specific, the township board should have classified Seneca’s proposed use as an impermissible use under section 5.00(B)(10). See Minn.Stat. § 645.26 (1998) (stating rules of construction for irreconcilable statutory provisions).

Appellants’ argument is flawed in two ways. First, the argument is circular; it assumes the proposed use is commercial or industrial and that it is not general farming or similar to general farming. Second, the canon of construction favoring the specific over the general is inapplicable because the provisions of the ordinance do not conflict. The classifications may be mutually exclusive but they are not irreconcilable. Section 5.08(B)(1) (referencing section 5.00(B)(10)) excludes certain commercial and industrial uses and section 5.08(B)(1) (referencing section 5.00(B)(16)) allows uses similar to farming. The township board and the district court properly concluded that Seneca’s proposed use is similar to farming; they did not conclude that there is a prohibited commercial or industrial use.

Appellants also argue that this case is similar to Farmington Township, where this court determined that the maintenance and leasing of a 30,000 gallon liquid petroleum tank was not a component of general farming or an accessory use incidental to farming. Farmington Township, 460 N.W.2d at 57-59. Analyzing an ordinance that allowed “general farming and similar agricultural related uses as well as accessory uses customarily incidental to general farming,” this court asked whether leasing of the tank was organized and carried on as an independent activity or as part of an agricultural function. Id. at 58-59 (quotations omitted). Because the cooperative was not a general farmer and the tank was much larger than those normally used in farming operations, this court held that the lease arrangement was more analogous to agricultural supply and was not related to agriculture itself. Id.

As the district court observed, Seneca is actually cultivating the land by sowing grass seed, watering, and growing plants. Farmington Township is distinguishable because Seneca is actively engaged in agricultural activity on the affected land and is not in the business of agricultural supply. Nor is Seneca’s irrigation via wastewater spraying an “independent productive activity” that is not part of the agricultural function on the land. Cf. Stillwater Township v. Rivard, 547 N.W.2d 906, 912 (Minn.App.1996) (conducting a retail and supply business for the public not engaging in “farming or other agricultural purposes”). Furthermore, whether Seneca harvests the plants or takes them to market is inconsequential; plowbacks, seedbanks, and windrows are examples of farming activities that do not result in the extraction of a product for human or livestock consumption. There is no need to render a crop to market for “farming” to occur.

Furthermore, regardless of whether Seneca’s use fits under a narrow definition of farming, the ordinance states that uses similar to general farming are permitted conditional uses. See Zoning Ord. § 5.00(A)(3) (stating that uses similar to those in section 5.00(B) are conditional uses). The breadth of the language in the interim ordinance is also inconsistent with any narrow definition of farming. Given the admonition to apply the plain and ordinary meaning of the terms in the ordinance, the district court did not err in concluding that the township board’s conclusion that Seneca’s proposed use of the land, which includes cultivation of plants, is “similar to” what happens on a farm was not reasonable. The district court properly granted summary judgment to the township board.

II.

Appellants contend that Seneca has made inconsistent claims in different statutory and regulatory settings about its proposed use of the land and that these inconsistent claims should preclude granting the CUP. Although the legal theory is not entirely clear, appellants may be attempting to argue that Seneca should be es-topped from arguing that its intended use of the land is similar to farming. The evidence underlying this claim was excluded in the district court, but even if we were to consider it, we would conclude that appellants have not established the elements of either equitable or judicial estoppel. Port Authority v. Harstad, 531 N.W.2d 496, 500 (Minn.App.1995) (elements of judicial estoppel are that party previously convinced a court to adopt an earlier inconsistent position), review denied (Minn. June 14, 1995); See McNattin v. McNattin, 450 N.W.2d 169, 172 (Minn.App.1990) (elements of equitable estoppel are reasonable reliance resulting in harm).

It may be more appropriate to consider appellants’ argument as a challenge to the reasonableness of the township board’s action. See Swanson v. City of Bloomington, 421 N.W.2d 307, 310-11 (Minn.1988) (characterizing standard of review in zoning matters as “reasonable basis,” “unreasonable, arbitrary or capricious,” or “reasonably debatable”). In special use cases such as this, reasonableness is measured by the standard contained in the applicable ordinance. Honn v. City of Coon Rapids, 313 N.W.2d 409, 417 (Minn.1981).

The overall purpose of the interim ordinance is:

to implement the Comprehensive Plans, and to promote and protect the health, safety, and general welfare throughout Olmsted County by lessening congestion in the public right-of-ways; securing safety from fire, panic, and other dangers; providing adequate light and air; facilitating the adequate provision of water, sewerage, and other public facilities; conserving the value of properties and encouraging the most appropriate use of the land; and to protect the environment.

Zoning Ord. § 1.02. Under the interim ordinance, conditional uses are designed to “permit a use that would not be appropriate generally but may be allowed with appropriate restrictions” under certain conditions consistent with the comprehensive plans and compatible with existing uses in the area. Zoning Ord. at 4.02 (1995). The purpose of the A-4 Agricultural-Urban Expansion District designation is to

provide for urban expansion in close proximity to existing incorporated urban centers within Olmsted County, in accordance with the adopted Comprehensive Plan, by conserving land for farming and other open space land uses for a period of time until urban services become available. It is the intent that urban development be deferred in such areas until an orderly transition from farm to urban uses shall be achieved.

Zoning Ord. § 5.08.

Applying the standards stated in these sections, we conclude that the township board’s issuance of the CUP is reasonable and not arbitrary or capricious. There is ample evidence in the record that the sprayfields would not be inconsistent with the policies and purposes of the interim ordinance. See Swanson, 421 N.W.2d at 314 (finding a decision reasonable when city council’s findings are supported by the evidence). Sprayfields are designed to encourage conservation practices, recycle water, return nutrients to the land, and prevent erosion. By increasing the acreage of available sprayfields, Seneca hoped to vary application of the wastewater to account for changing atmospheric and surface conditions and to allow for rotation and rest-recovery periods for the parcels.

The record is detailed and complete. The township board made contemporaneous findings and addressed all of the relevant provisions in sections 4.02 and 5.08 of the interim ordinance. The township board did not disregard appellants’ concerns about storm runoff and groundwater effects: it imposed thirteen conditions on the CUP requiring monitoring, testing, and reporting. Benton Township v. Carver County Bd. of Comm’rs, 302 Minn. 493, 498-99, 225 N.W.2d 815, 818-19 (upholding municipality’s decision absent evidence that proposed use would be injurious to public health, safety, or welfare and when conditions attached to permit adequately addressed issues raised in opposition). After multiple public hearings, expert testimony, consultation with other local and state agencies, and consideration of geologic and hydrologic reports, the township board concluded that granting Seneca a CUP to operate sprayfields would not adversely affect the covered parcels, the surrounding land, and would not offend the stated policies of the interim ordinance. The township board’s grant of the CUP to Seneca was reasonable and supported by the evidence.

III.

Finally, appellants argue that the district court erred in limiting its review to the existing record and not accepting new evidence. We disagree. In deciding whether to accept new evidence, a district court should consider

the nature, fairness and adequacy of the proceeding at the local level and the adequacy of the factual and decisional record .of the local proceeding. Where the municipal proceeding was fair and the record clear and complete, review should be on the record.

Swanson, 421 N.W.2d at 312-13.

Appellants assert various theories about the fairness of excluding the MPCA documents and other items. We conclude that the district court did not err in limiting its review to the record before it. Appellants had ample opportunity to present evidence before the township board made its decision and their submissions were included in the record provided to the •district court. All of the proceedings were recorded and transcribed. The township board made contemporaneous findings, incorporated a staff report and recommendation that included response letters from government agencies, and imposed thirteen conditions on the CUP. Therefore, the available record was clear and complete. See id. at 313 (stating that a record is likely to be clear and complete when accompanied by contemporaneous findings and an accurate transcript). Additionally, the proceedings were fair because appellants and their counsel participated fully, the evidence appellants sought to introduce was either available and failure to present it was without good cause, or the evidence was immaterial. See id. (holding that in order to supplement the record on review, a party must offer good reasons for failure to present it below; a district court need not accept immaterial evidence). Because the existing record was clear and complete and the proceedings were fair, the district court did not err in conducting its review on the record.

DECISION

The district court did not err in granting summary judgment and it properly conducted its review on the record before it.

Affirmed.


author: DANIEL F. FOLEY, Judge.

text:
    DEMOLITION LANDFILL SERVICES, LLC, Appellant, v. CITY OF DULUTH, Respondent.
    No. C6-99-1635.
    Court of Appeals of Minnesota.
    April 25, 2000.

      Timothy R. Thornton, Jack Y. Perry, Briggs and Morgan, Minneapolis (for appellant).
    William P. Dinan, Duluth City Attorney, M. Alison Lutterman, Assistant City Attorney, Duluth (for respondent).
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge.

Appellant Demolition Landfill Services challenges the district court’s order denying its motion for summary judgment and dismissing its petition for a writ of mandamus to compel respondent City of Duluth to grant appellant a special-use permit for a landfill. Appellant asserts that the city was required to issue the permit pursuant to Minn.Stat. § 15.99, subd. 2 (1998), because the city failed to approve or deny the permit application within the statutory time period. Appellant further asserts that the district court erred in concluding that the city’s rejection of a resolution granting the permit constituted a denial of the permit application. We agree and reverse.

FACTS

On December 18, 1998, appellant completed an application for a special-use permit for a landfill. On April 12, 1999, the Duluth City Council (the council) heard testimony on the application and then voted on, and rejected, a resolution approving the permit. On May 24, 1999, the council passed a resolution denying the permit.

Appellant petitioned the district court for a writ of mandamus and filed a complaint for declaratory and other relief. The parties stipulated to the withdrawal of all issues except the petition for a writ of mandamus and appellant moved for summary judgment on the petition. In support of its petition, appellant asserted that pursuant to Minn.Stat. § 15.99, subd. 2 (1998), the permit application must be approved because the city did not deny the application within 120 days of the application’s submission. After concluding that there were no material facts in dispute, the district court denied appellant’s motion for summary judgment and dismissed the petition, holding that the city council’s action on April 12, 1999, constituted a denial of the application for a special-use permit.

ISSUE

Did the district court err in concluding that the city’s rejection of a resolution granting a special-use permit equated to a denial of the permit application and thereby err in dismissing appellant’s petition for a writ of mandamus?

ANALYSIS

When the district court’s decision on a petition for a writ of mandamus is based solely on legal determinations, the appellate court’s review is de novo. Manco of Fairmont, Inc. v. Town Bd., 583 N.W.2d 293, 294 (Minn.App.1998), review denied (Minn. Oct. 20, 1998); To obtain mandamus relief a petitioner must establish

(1) the failure of an official duty clearly imposed by law; (2) a public wrong specifically injurious to petitioner; and (3) no other adequate specific legal remedy.

Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn.App.1995) (citations omitted).

Pursuant to Minn.Stat. § 15.99, subd. 2 (1998):

[A]n agency must approve or deny within 60 days a written request relating to zoning * * * for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

The agency may extend the 60-day limit an additional 60 days if the agency provides the applicant with written notice before the initial 60-day period expires. Id., subd. 3(f) (1998). Statutory or home rule charter cities are included within the definition of “agencies.” Id., subd. 1 (1998).

The parties here agree that (1) the city is an agency within the statutory definition; (2) appellant completed its permit application December 18, 1998; and (3) the city extended its time for review an additional 60 days, giving it 120 days to make a decision. It is also undisputed that the 120 days expired on April 16,1999.

This dispute revolves around an interpretation of the council’s actions taken at the April 12, 1999, meeting. At that meeting, the council discussed appellant’s application, heard testimony, and voted on a resolution entitled:

A Resolution Granting a Special Use Permit to Demolition Landfill Services, LLC for a Demolition Debris Land Disposal Facility Property Located at 1100 W. Gary Street.

The resolution failed by a 2-5 vote.

At the next meeting, held May 24, 1999, a resolution denying the permit application was introduced, and the council members voted on whether to approve the resolution. The resolution passed with a 7-2 vote. The resolution stated:

[A] special use permit application by Demolition Landfill Services, Inc., to allow for a select waste disposal demolition debris landfill at 1100 Gary Street, is hereby denied.

Appellant asserts that, contrary to the district court’s conclusion, the city council’s rejection of the resolution granting the permit did not equate to a denial of the permit application. See Minn.Stat. § 15.99, subd. 2 (requiring agency to “approve or deny” application within statutory time period). Thus, appellant contends, the agency failed to deny the permit application within 120 days and the application must be approved by default.

The city council may have intended its rejection of the resolution granting the permit to equate to a denial of the permit application. The council discussed the permit application at the April 12 meeting and after rejecting the resolution granting it, discussed whether it was necessary to enact a separate resolution denying the permit. They decided to do so after being informed by the city attorney that although such a resolution might not be “absolutely necessary, ⅝ * * it’s a good practice to do that” and to provide written reasons for the denial.

Regardless of the council’s intent, however, it voted on two separate resolutions: a resolution granting a special-use permit and a resolution denying a special-use permit. There is no evidence that a council member’s vote on the first resolution dictated that member’s vote on the second resolution. The council members were not precluded from voting against the resolution to deny the permit, regardless of their vote on the resolution to grant the permit. Thus, we cannot conclude that the council’s rejection of the resolution granting the permit equated to a denial of the permit application.

Minn.Stat. § 15.99, subd. 2, unambiguously states that failure to deny a permit application within the statutory time period mandates an approval. Because the statute is unambiguous, this court must “give effect to the statute’s plain meaning.” Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (citations omitted); see also Minn. Stat. § 645.16 (1998) (“When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”). We cannot permit a municipality to bend the letter of the statute for the sake of administrative ease. Cf. Olympia Brewing Co. v. Commissioner of Revenue, 326 N.W.2d 642, 648 (Minn.1982) (recognizing “administrative ease, while a legitimate concern, does not justify an interpretation of a statute which is inconsistent with its purpose” (citation omitted)).

Further, even if we were to conclude that the refusal to approve the resolution granting the permit constituted a denial of the permit application, it is undisputed that no written reasons were given to appellant when the council rejected the resolution granting the permit. The governing statute requires the agency to provide written reasons for a denial “at the time that it denies the request.” Minn.Stat. § 15.99, subd. 2. Here, written reasons for rejecting the resolution granting the permit were provided within the resolution denying the permit that was adopted May 24.

In Manco, this court discussed the application of the doctrine of substantial compliance to Minn.Stat. § 15.99 (1998) and explained the distinction between mandatory and directory statutes. Manco, 583 N.W.2d at 295-96. This court concluded that Minn.Stat. § 15.99, subd. 3(f), which requires an agency to give reasons when it requests an extension on the initial 60-day time limit for approving or denying an application, is directory because there is no stated consequence for an agency’s failure to provide reasons. Manco, 583 N.W.2d at 296; see Sullivan v. Credit River Township, 299 Minn. 170, 176-77, 217 N.W.2d 502, 507 (1974) (recognizing statute that does not state consequences of failure to comply is directory). We went on to conclude in Manco that because subdivision 3(f) is directory, the doctrine of substantial performance applies. Manco, 583 N.W.2d at 296.

Subdivision 2, at issue here, states that the consequence of not denying a request within 60 days is automatic approval. Immediately following this stated consequence, the subdivision mandates simultaneous, written reasons for the denial. Cf. R.A. Putnam & Assocs. v. City of Mendota Heights, 510 N.W.2d 264, 267 (Minn.App.1994) (“The requirement that contemporaneous findings be recorded prevents a city from offering after-the-fact justifications * * * unrelated to the actual reasons for the initial decision.” (quotation omitted)), review denied (Minn. Mar. 15, 1994). We conclude therefore, that simultaneous, written reasons for a denial are mandatory and not directory. Because we hold that the provisions of subdivision 2 are mandatory, including the requirement that written reasons be given simultaneously with the decision, the substantial performance doctrine is not applicable to this case.

DECISION

The Duluth City Council’s rejection of a resolution approving a special-use permit did not equate to a denial of the permit application. Minn.Stat. § 15.99, subd. 2 (1998), is unambiguous and mandatory. Absent a denial within the statutory time limit and simultaneous, written reasons for the denial, the permit application is approved. Thus, the district court erred in refusing to grant appellant’s petition for a writ of mandamus.

Reversed.

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

      . Notably, in Manco this court staled in dicta that subdivision 2 is mandatory because it contains consequences for noncompliance with the time-limit requirement. Manco, 583 N.W.2d at 295.
      We reject the city's assertion that under R.A. Putnam, the city was not required to prepare simultaneous, written reasons for its denial and was entitled to a reasonable amount of time to prepare them. In R.A. Putnam, this court considered whether a zoning decision was arbitrary and concluded that if a record is prepared within a reasonable time after a zoning decision, arbitrariness should not be presumed. 510 N.W.2d at 267. Here, we are not deciding whether the city acted arbitrarily. Instead, we are applying the unambiguous language of Minn.Stat. § 15.99, subd. 2.