author: PAUL H. ANDERSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Mong Danny CHENG, Petitioner, Appellant.
    No. C5-00-1004.
    Supreme Court of Minnesota.
    March 22, 2001.
    Rehearing Denied April 19, 2001.

      John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Susan Gaeetner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, for respondent.
   OPINION

PAUL H. ANDERSON, Justice.

The Ramsey County Attorney charged appellant, Mong Danny Cheng, with four counts of second-degree murder in connection with a July 1999 drive-by shooting in Saint Paul. Following a probable cause hearing, a Ramsey County District Court judge was assigned to handle Cheng’s trial and all further proceedings in the case. After failed plea negotiations, Cheng appeared in court and attempted to plead guilty to second-degree murder, which the court concluded he could do. Rather than allowing Cheng to plead guilty, the county attorney dismissed the charges and Cheng was released.

A month later, a Ramsey County grand jury indicted Cheng for first-degree murder, together with five other lesser counts arising out of the July 1999 shooting. The case was then reassigned to the same judge. The county attorney filed a notice to remove this judge under Minn. R.Crim. P. 26.03, subd. 13(4) but the judge ruled that the notice to remove her was not timely filed because she already had ruled on substantive issues. The county attorney then petitioned the Minnesota Court of Appeals for a writ of prohibition prohibiting the assigned judge from hearing the case and a writ of mandamus requiring the Chief Judge of the Ramsey County District Court to reassign the case. The court of appeals issued a writ of prohibition as requested. We reverse, vacate the writ of prohibition, and remand.

Shortly after midnight on July 22, 1999, Peter Xiong and a group of other persons were sitting outside a Saint Paul residence. A minivan slowly approached the group and eight to ten shots were fired at the group from inside the minivan. The minivan then sped off. Peter Xiong was killed by a gunshot to the chest and four other persons were taken to the hospital with injuries from the gunfire. A confidential informant notified the Minnesota Gang Strike Force that appellant Mong Danny Cheng was one of the individuals involved in the shooting. After further investigation, Cheng was charged with four counts of second-degree murder in connection with Xiong’s death. Cheng was arraigned on December 1, 1999, before Ramsey County District Court Judge Louise Dovre Bjorkman and on December 28 Cheng entered a not guilty plea at a probable cause hearing presided over by Judge Dale B. Lindman.

On January 6, 2000, Judge Judith M. Tilsen was assigned to handle all further proceedings involving the charges against Cheng, including trial. Neither party filed a notice to remove Judge Tilsen upon receiving notification of her assignment to the case. On March 9, 2000, a dispositional conference was held before Judge Til-sen. At this hearing, only scheduling matters were dealt with on the record; however, the parties acknowledge that other matters were discussed. In particular, Cheng claims that at this hearing the state gave notice of an intent to proceed to the grand jury to obtain a first-degree murder indictment. The next day, the state contacted Cheng’s counsel and discussed a plea agreement in which Cheng would plead guilty to one count of second-degree murder and receive a sentence at the low end of the guidelines range. The state also indicated that Cheng’s counsel would be free to discuss a sentence departure with the judge. After receipt of this offer, Cheng’s attorney expressed an intent to accept the plea agreement. On March 22, an assistant county attorney and Cheng’s attorney met with Judge Til-sen in her chambers to discuss resolution of the case. Cheng asserts that at this meeting the state restated its earlier offer to permit him to plead guilty to the most serious count on the complaint. He also asserts'that the state agreed to recommend a sentence of 331 months, but that Cheng’s counsel could request a downward departure. No record was made of this conference.

On March 30, Cheng appeared at a hearing before Judge Tilsen, but the state was not present so the question of the plea was continued. Later that same day, the state informed Cheng’s counsel that it would counter any request by Cheng for a downward departure in sentencing by asking for an upward departure, but that it might still agree to a guidelines sentence. Five days later, the state informed Cheng’s counsel that it would no longer accept a guilty plea to second-degree murder and instead intended to seek a first-degree murder indictment from the grand jury.

The next day, April 5, Cheng appeared before Judge Tilsen and indicated that he was prepared to “plead guilty to the top count of the complaint, murder in the second degree, crime benefiting a gang, and that he would receive a guideline sentence for the low end of the box of 331 months.” An assistant county attorney was present and indicated that the state was not prepared to accept a plea on any count. After first indicating that there had been extensive discussions off the record, Judge Til-sen ruled that under Minn. R.Crim. P. 8.01, Cheng “can plead to the charges, straight plea, at any time.” Judge Tilsen asked Cheng’s attorney if it was Cheng’s intention to plead to the charges and she indicated that it was. However, before Cheng could enter a guilty plea, the state dismissed the charges against him and the court ordered him to be released. Judge Tilsen then gave a narrative explaining why, but for the dismissal, she would have permitted Cheng to plead guilty to second-degree murder. Judge Tilsen explained that because the charge against Cheng was for a homicide, Rule 8.01 requires that the state notify the court of its intent to proceed to the grand jury and that the state must proceed to the grand jury within 14 days of Cheng’s appearance under Rule 8. Judge Tilsen went on to explain that the state had negotiated in bad faith with Cheng. On appeal, the state asserts that at this hearing Judge Tilsen refused to grant a continuance so that the state could take the case to a grand jury. However, the state did not make such a request on the record, nor did the state appeal from any such ruling.

On May 3, 2000, Cheng was indicted on six counts arising out of the July 22, 1999 shooting: one count of first-degree murder during a drive-by shooting in violation of Minn.Stat. §§ 609.185, subd. 3 (2000), 609.11, and 609.05; one count of second-degree murder — crime committed for the benefit of a gang — in violation of Minn. Stat. §§ 609.229, 609.11, and 609.05; and four counts of attempted first-degree murder during a drive-by shooting in violation of Minn.Stat. §§ 609.185, subd. 3, 609.17 (2000), 609.11, and 609.05. On May 3, 2000, the case was assigned to Judge Til-sen to handle all further proceedings.

On May 9, 2000, the state filed a notice to remove Judge Tilsen under Minn. R.Crim. P. 26.03, subd. 13(4). The notice to remove was referred to Judge Tilsen for a determination of whether it was timely filed. The judge set the matter for a hearing and requested briefing. Both sides submitted briefs to the court and at a hearing on May 24 were permitted to present oral arguments. At the hearing, Judge Tilsen specifically addressed' the state’s assertion that she had called the clerk’s office and requested that Cheng’s new file be assigned to her calendar. Judge Tilsen explained that she had not requested that the case be assigned to her after the indictment issued. She stated that she had contacted the Chief Judge of the Ramsey County District Court prior to the grand jury being convened and asked what would happen if an indictment issued. Judge Tilsen stated that the chief judge informed her that the case would continue to be assigned to her. Judge Tilsen then restated the explanation provided by the chief judge that “when a case is filed by Complaint, an order [is issued] assigning a particular murder case to a particular judge. After indictment is issued, there is no new order. * * * It is assumed to be the same case, assigned to the same judge.”

Following this explanation, Judge Tilsen ruled that the notice to remove was not timely filed because she had ruled on substantive issues in the case. Judge Tilsen explained that there had been discussions about “the facts of the case, the possible admission of evidence, the possible negotiations, the possible number of months.” Judge Tilsen reiterated her earlier finding that the state had negotiated in bad faith. She also expressed concern about her perception of a pattern in the county attorney’s office of not negotiating in good faith, but then clarified that this pattern was not the basis for her decision. Finally, she stated that the obvious reason for the state’s notice of removal was its desire to avoid her earlier substantive rulings on the case. She stated, “I don’t think it’s a huge jump to say that it is because of this Court’s posture and involvement with the case charged by Complaint that the State has now filed a Notice of Removal. So, the issue of whether or not I have ruled on substantive issues is settled. I have.”

Following Judge Tilsen’s ruling that the notice to remove was not timely filed, the state contacted the district’s chief judge by letter to request that he appoint another judge to hear the case. In the letter, the state apprised the chief judge that he had a duty to assign a judge other than Judge Tilsen, that no kind of hearing was permitted on this matter, and that his duty was mandatory, not discretionary. The chief judge denied the state’s request, concluding that had the objection been for cause he would have heard The state’s motion.

The state then petitioned the court of appeals for a writ of prohibition forbidding Judge Tilsen from hearing the case and a writ of mandamus requiring the chief judge to assign another judge to hear the case. The court of appeals issued a writ of prohibition as requested. The court concluded that after the indictment Cheng’s case was a new proceeding because when the indictment was sought, the state was required to present testimony to the grand jury, which qualified as an evidentiary hearing. State v. Chang [sic], No. C5-00-1004, No. C7-00-1005, slip op. at 2 (Minn. App. June 27, 2000).

In reaching its holding, the court of appeals followed the reasoning that we have used in civil cases involving removal under Minn. R. Civ. P. 63.03 in which a case is a new proceeding if it requires an evidentiary hearing. Id. The court further explained that the state did not dismiss the complaint to avoid Judge Tilsen’s rulings, but instead dismissed the complaint so it could present the case to the grand jury. Id. The court concluded that any prosecu-torial abuse of the rule needed to be addressed by the supreme court. Id. at 2-3. In denying the state’s request for a writ of mandamus, the court of appeals concluded that the chief judge properly denied the state’s request to reassign the case because it was not a removal for cause. Id. at 3. Additionally, the court noted that the writ of prohibition was sufficient to accomplish the state’s goal of having the case assigned to another judge. Id.

On appeal, Cheng requests that we hold that an indictment for a criminal offense that has been previously charged by complaint is not a new proceeding. He then argues that because the indictment does not create a new proceeding, it cannot revive a lapsed notice to remove a judge without cause or otherwise permit the removal without cause of a judge who has already handled substantive issues in the case. Cheng asserts that the period for filing a notice to remove Judge Tilsen under Minn. R.Crim. P. 26.03, subd. 13(4), expired 7 days after the parties received notice of her January 6, 2000 assignment to the case. Cheng also asserts that Judge Tilsen ruled on substantive issues, such that even if the notice to remove were filed within 7 days, a notice to remove absent a showing of cause would not be effective.

We review the issuance of a writ of prohibition by reviewing the underlying issue. Cf. McClelland v. Pierce, 376 N.W.2d 217, 219 (Minn.1985) (stating that the question “is not the form of relief but rather the validity of the basis upon which [the relief! was awarded”). Rule 26.03, subd. 13(4), of the Minnesota Rules of Criminal Procedure is the rule that provides for removal as a matter of right of a judge assigned to a criminal trial or hearing. The rule requires that a party seeking removal of a judge without cause must file a notice to remove within 7 days after the party receives notice of which judge is to preside at the trial or hearing. Minn. R.Crim. P. 26.03, subd. 13(4). The rule also states that such a notice to remove is not effective “against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing * * *.” Id. Cheng’s appeal turns on the interpretation of this rule of criminal procedure and the interpretation of a court rule is a legal question that we review de novo. State v. Nerz, 587 N.W.2d 23, 24-26 (Minn.1998).

Our inherent authority to ensure the effective functioning of the judiciary came into existence with the creation of the court. Clerk of Court’s Comp. for Lyon County v. Lyon County Comm’rs, 308 Minn. 172, 176, 241 N.W.2d 781, 784 (1976). It is under this authority that we enact and interpret the rules of procedure governing our courts. State v. Johnson, 514 N.W.2d 551, 553-54 (Minn.1994). The Rules of Criminal Procedure, and specifically Rule 26.03 at issue here, were adopted pursuant to our inherent authority and as such we will interpret the rule in a manner that will ensure the “free and full exercise of the court’s vital function * * Clerk of Lyon County, 308 Minn, at 177, 241 N.W.2d at 784.

The relevant part of Rule 26.03, which allows a party to remove a judge without cause, was adopted to further the goal of ensuring a fair trial. State v. Erickson, 589 N.W.2d 481, 484 (Minn.1999). While parties maintain the right to remove a judge for cause, the limited ability to remove a judge without cause is important because it operates to “ ‘protect the judge from having his or her impartiality unfairly impugned, to avoid having the lawyer file an affidavit of prejudice without having guidelines as to the proper use of the affidavit, and to promote the bench’s and public’s interest in preserving confidence in the judiciary.’ ” Id. at 484 (quoting State v. Holmes, 106 Wis.2d 31, 315 N.W.2d 703, 717 (1982)).

As was illustrated in Erickson, we will narrowly construe the rule allowing for removal without a showing of cause. Id. at 485. Relying on civil cases, the court of appeals held that Cheng’s indictment following the dismissal of the complaint against him initiated a “new proceeding” to which a new right of removal without cause attaches. We disagree. We conclude that at this stage in the prosecution of Cheng, the right to remove Judge Tilsen without cause is no longer available. The sequence of events that led the state to file a notice to remove Judge Tilsen is such that we conclude that the indictment against Cheng was not a new proceeding for purposes of the removal rule.

Judge Tilsen was assigned to Cheng’s case for all further proceedings involving the charges against him, including trial. Neither party attempted to remove the judge within 7 days of their notice of this assignment. Judge Tilsen presided over a dispositional conference, scheduling discussions and extensive plea negotiations. Thereafter, the state notified the court that it intended to seek an indictment from the grand jury. Judge Tilsen appears to have denied the state a continuance to take the case to the grand jury, provided reasons for her decision, and stated her intent to allow Cheng to plead guilty to second-degree murder. Instead of appealing the judge’s decision, the state chose to dismiss the charges, seek an indictment, and then after the indictment was obtained, remove Judge Tilsen without a showing of cause. Under these specific circumstances, the right to remove Judge Tilsen without a showing of cause has expired. We hold that the court of appeals erred when it issued the writ of prohibition; therefore, we reverse the court of appeals, vacate the writ of prohibition, and remand the case to Judge Tilsen for further proceedings consistent with this opinion.

Reversed and remanded.

      . The state actually filed its notice to remove pursuant to Minn.Stat. § 542.16 (1998) although its legal arguments are based on the notice to remove provisions in Minn. R.Crim. P. 26.03, subd. 13(4). The criminal notice to remove provisions are properly governed by Minn. R.Crim. P. 26.03, subd. 13(4), which supercedes the criminal removal provisions in Minn.Stat. § 542.16. State v. Azure, 621 N.W.2d 721, 724 (Minn.2001). Therefore, we will refer to the rule.

      . Count I was murder in the second degree in violation of Minn.Stat. §§ 609.19, subd. 1(1) (2000), and 609.11, subd. 5 (2000). Count II was murder in the second degree-crime committed for the benefit of a gang-in violation of Minn.Stat. §§ 609.19, subd. 1(2) (2000), 609.11, subd. 5, and 609.229 (2000). Count III was murder in the second degree-drive-by shooting-in violation of Minn.Stat. §§ 609.19, subd. 1(1), and 609.11, subd. 5. Count IV was murder in the second degree-drive-by shooting committed for the benefit of a gang-in violation of Minn.Stat. §§ 609.19, subd. 1(2), 609.11, subd. 5, and 609.229. All four counts were based on Peter Xiong’s death and all were charged as aiding and abetting crimes under Minn.Stat. § 609.05 (2000).

      . On appeal the stale maintains that conversations about possible plea agreements were only negotiations, but that if an offer had been extended, the state had the right to withdraw it.

      . The full text of Minn. R.Crim. P. 26.03, subd. 13(4), reads:
      (4) Notice to Remove. The defendant or the prosecuting attorney may serve on the other parly and file with the court administrator a notice to remove the judge assigned to a trial or hearing. The notice shall be served and filed within seven (7) days after the party receives notice of which judge is to preside at the trial or hearing, but not later than the commencement of the trial or hearing. No notice to remove shall be effective against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice, except upon an affirmative showing of cause on the part of the judge. After a party has once disqualified a presiding judge as a matter of right, that party may disqualify the substitute judge only upon an affirmative showing of cause.


source: Caselaw Access Project

author: RUSSELL A. ANDERSON, Justice.

license: Public Domain

text:
    Terry LEWIS, Respondent, v. COUNTY OF HENNEPIN, Relator.
    No. CX-00-1077.
    Supreme Court of Minnesota.
    March 22, 2001.

      Amy Klobuchar, Hennepin County Atty., Mark Kapter Maher, Asst. Hennepin County Atty., Minneapolis, for relator.
    Thomas R. Wilhelmy, Laurie J. Miller, Minneapolis, for respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

This case centers on the assessment value of a luxury “dream” home on an unusually configured piece of land in an exclusive Lake Minnetonka neighborhood. The Hennepin County assessor assigned an estimated market value to the property of $4.22 million for 1996 and $4.35 million for 1997 and respondent challenged both assessments under Minnesota Statutes Chapter 278. After determining the fair market value and applying results of a sales ratio study indicating overvaluation for tax purposes, the tax court reduced the assessor’s estimated market value for the property to $3,227,000 for 1996 and to $3,244,500 for 1997. The county appealed. We affirm.

Respondent purchased a 4.2-acre lot along Lake Minnetonka in Wayzata in 1992 for $1.6 million. The seller, a neighbor, had purchased the lot for $1.9 million but encumbered it with a conservation easement before selling it to respondent. In 1993 and 1994, respondent constructed a 30,000-square-foot home on the lot at a cost of approximately $5 million.

Both the lot and the home are atypical residential real estate. The lot is approximately 1,000 feet deep and flag-shaped, with the driveway serving as the “flagpole” extending from the public street to the lake. The house sits on the broadest section or flag-shaped piece of the property, between the lake and the road. The property has 76 feet of lake frontage. The home has eight bedrooms, two kitchens, seven fireplaces, an elevator, a movie theater, a recording studio designed to make commercial quality recordings, a hair salon, a grill room and a swimming pool with a spa and sauna.

The county assessor placed an estimated market value on the property of $4,220,000 for tax year 1996, and $4,350,000 for tax year 1997. Respondent filed property tax petitions challenging the valuations and the cases were consolidated for trial.

Trial to the tax court lasted five days and concluded in April 1999 but the tax court reopened the proceedings in June 1999 to allow additional testimony regarding a sales ratio study for the 1996 assessment. Based on the results of the study, the court reduced the estimated market value to $3,227,000 for 1996 and to $3,244,500 for 1997 in findings of fact, conclusions of law, and order for judgment.

Meanwhile the county had learned that respondent was marketing the property and deposed respondent’s real estate agent. At the county’s request, the tax court stayed its previous order and allowed additional testimony regarding the marketing of the home. The additional testimony addressed the impact of the marketing and sale of the property on its 1996 and 1997 valuations. The testimony confirmed that respondent rejected a $6 million offer for the property in June 1999 and that respondent sold the property for $6.2 million in December 1999. The tax court denied the county’s motion to amend the tax court’s findings, conclusions of law and order for judgment based on the marketing and sale.

On appeal to this court, the county raises numerous challenges to the tax court’s factual findings and legal conclusions, and also challenges the tax court’s evidentiary ruling. First, the county argues that the tax court failed to give proper weight to the June 1999 cash offer .and December 1999 sale price as material evidence of the value of the property in 1996 and 1997. Second, the county argues that the tax court failed to give sufficient weight to the cost approach for determining the value of the property. Third, the county argues, the tax court inappropriately reduced the property’s 1996 market value because the sales ratio study on which the reduction was based was not adjusted for time. Fourth, the county contends that the tax court failed to consider the county appraiser’s analysis of sales of comparable properties. Fifth, the county argues that the tax court erred in valuing the land at the price respondent paid for it in 1992. Finally, the county argues that the tax court erred in admitting the appraisal report of a deceased appraiser.

Because of the inexact nature of valuing property, this court defers to the tax court’s decision unless the tax court clearly overvalued or undervalued the property or the tax court completely failed to explain its reasoning. Equitable Life Assur. Soc. of U.S. v. County of Ramsey, 530 N.W.2d 544, 552 (Minn.1995). Before we will overrule the tax court, we must conclude that the tax court’s decision is clearly erroneous, that is, that the evidence as a whole does not reasonably support the decision. Marquette Bank Natl Ass’n v. County of Hennepin, 589 N.W.2d 301, 305 (Minn.1999). Before we will reverse, we also must be left with a definite and firm conviction that a mistake has been committed. Id.

Property is valued at its market value for tax purposes. Minn.Stat. § 273.11, subd. 1 (2000). Market value is “the usual selling price * * * which could be obtained at a private sale or an auction sale, if it is determined by the assessor that the price from the auction sale represents an arms length transaction.” Minn.Stat. § 272.03, subd. 8 (2000).

This court recognizes three traditional approaches to establish the market value of real estate. Equitable Life, 530 N.W.2d at 552. The first approach, market comparison, is based on market prices paid for comparable properties. The second approach, the cost approach, recognizes that an informed buyer will pay no more for property than the cost of new construction of identical property. The third approach, the income approach, is based on the income that the property would produce. Lewis & Harris v. County of Hennepin, 516 N.W.2d 177, 178 (Minn.1994).

Appraisers must consider all relevant factors, Minn.Stat. § 273.12 (2000), and whenever possible should use at least two approaches to determine market value. Equitable Life, 530 N.W.2d at 553. The three traditional valuation approaches, however, are neither exclusive nor mandated. Northwest Racquet Swim & Health Clubs, Inc. v. County of Dakota, 557 N.W.2d 582, 587 (Minn.1997). Rather, the particular facts of each case determine the priority and amount of weight accorded each approach. Lewis & Harris, 516 N.W.2d at 180. Against these standards, we address the county’s claims.

A. 1999 Property Sale

First, the county argues that the tax court should have given more weight to the rejected June 1999 $6 million cash offer and the December 1999 $6.2 million sale price as material evidence of the 1996 and 1997 valuations under the market comparison approach. The weight to be given particular evidence in a valuation determination is for the trier of fact. See Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970). The tax court stated that it consistently gives no weight to nonconsummated purchase agreements. Niemi v. County of Carver, Nos. C3-96-146 and C5-96-147,1996 WL 685573, at *2 (Minn. T.C., Nov. 25, 1996). Such agreements are essentially offers to purchase, and represent one potential buyer’s valuation of the property. The offer may be laden with contingencies or terms other than sale price that distort the monetary value of the offer. While under different facts we might rule otherwise, we do not consider the tax court’s decision not to give weight to the nonconsummated purchase agreement in this case to be an abuse of discretion. Therefore, we consider only whether the $6.2 million sale price was given proper weight in determining the property’s value in 1996 and 1997.

Respondent’s appraiser testified that because the sale occurred four and three years after the relevant assessment dates, it was too remote in time to be considered, although he did use a 1999 land sale as one of four comparables in appraising the value of respondent’s land for 1996 and 1997. Respondent’s appraiser also testified that the market had not changed between 1996 and April 1998 and that this sale marked an unanticipated change in the luxury home market on Lake Minnetonka. The county argues that, assuming no change in the market until April 1998, the record contains no evidence to support a 70 percent increase in the value for luxury homes on Lake Minnetonka between April 1998 and December 1999.

The tax court noted that one sale is not necessarily conclusive of value because “one sale does not make a market.” The tax court explained that it was persuaded by the testimony of respondent’s appraiser that the December 1999 sale represented an unanticipated market change, and the tax court is in the best position to evaluate the credibility of witnesses. F-D Oil Co. v. Comm’r of Revenue, 560 N.W.2d 701, 706 (Minn.1997). The tax court also explained that it generally gives little weight to sales remote in time to the valuation date. See Huisken Meat Center, Inc. v. County of Murray, Nos. C2-97-27 and C8-95-271, 1998 WL 15131, at *3 (Minn. T .C., Jan. 14, 1998). Likewise, we have considered the market comparison approach to be based on recent sales of similar property. See, e.g., Northerly Centre Corp. v. County of Ramsey, 311 Minn. 335, 338, 248 N.W.2d 923, 925, n. 2 (1976). We cannot say that the tax court clearly erred or completely failed to explain its reasoning when it determined under these particular facts that the December 1999 sale was too remote in time to be given much weight in determining the property’s value in January 1996 and 1997. See Marquette Bank, 589 N.W.2d at 305.

B. Cost Approach

Next, the county challenges the tax court’s failure to explain both its finding of functional obsolescence in the property and why it rejected the cost approach, and its failure to reach a value under the cost approach. In effect, the county claims, the tax court rejected the cost approach. We disagree.

The tax court indicated that it considered the cost approach but judged it less reliable than the market comparison approach, as did the county’s appraiser. The court noted that construction and land costs were disputed. The court also explained that potential purchasers have the means to build their own “dream” homes and are unwilling to pay the full construction cost of customized features that represent someone else’s dream.

The tax court’s discounting of the cost approach is consistent with accepted principles of appraisal. Luxury items in a home that exceed market requirements do not add to the property’s value in an amount equal to their cost and, in fact, may reduce the property’s value, creating functional obsolescence. Appraisal Institute, The Appraisal of Real Estate 390 (11th ed.1996). Functional obsolescence of luxury items is cured when they are removed, and doing so adds value to the property. Id. at 387.

The appraisers agreed that the luxury features in respondent’s home became functionally obsolete, but disagreed as to the degree of functional obsolescence. Respondent’s appraiser discounted the building replacement cost by 53 percent for functional obsolescence. He testified that this type of luxury home suffers “huge amounts” of depreciation and provided articles and examples of other luxury homes to support his testimony. In particular, respondent’s appraiser noted that many people would not be willing to pay for a movie theater or recording studio in the home. Respondent’s appraiser also testified that luxury homes suffer depreciation because the home is an “expression of ego” not fulfilled by buying another’s home.

The county’s appraiser discounted the building replacement cost by 35 percent, believing that the functional obsolescence in the property was curable.

The tax court recognized the difficulty in determining functional obsolescence, a conclusion supported by the appraisers’ widely varying determinations, and explained that such difficulty rendered the cost approach less reliable. Where the tax court determined that the cost approach was of little reliability based in part on the variable determinations of functional obsolescence, the tax court was not required to determine or explain findings relative to functional obsolescence as the county demands.

Finally, the county offers no case law nor statutory support for its statement that the court should reach a valuation based on the cost approach. The tax court is not obligated to give the cost approach equal weight to any other approach; rather, the weight accorded each approach depends on the facts of each case. Lewis & Harris, 516 N.W.2d at 180.

We conclude that the court considered the cost approach and sufficiently explained why the cost approach was of little reliability, given the difficulty in determining the extent to which purchasers would pay for luxury features acknowledged to be functionally obsolete.

C. Department of Revenue Sales Ratio Study

Next, the county argues that the tax court applied a sales ratio figure for 1996 that was not adjusted for time, as required under Minn.Stat. § 278.05, subd. 4(b) (2000). Therefore, the county argues, the court erroneously adjusted the value of the subject property. The county does not challenge the sales ratio study for the 1997 assessment.

A sales ratio compares the sale prices of recently sold properties with the assessed value given those properties for tax purposes. Minn.Stat. § 270.12, subd. 2 (2000). The ratio is designed to measure how close assessments are to market value and to measure the inequality of assessment practices. Id. The Department of Revenue (DOR) conducts a sales ratio study that may be used as the basis to reduce property value under certain conditions. Id.; Minn.Stat. § 278.05, subd. 4 (2000). The tax court may grant a reduction in property value if (a) the study’s sales prices are adjusted for the terms of the sale to reflect market value, (b) the sales prices are adjusted to reflect the difference between the date of sale and the date of assessment, (c) there is an adequate sample size and (d) the median ratio of sale price to assessed value of property of the same classification in the same tax district is lower than 90 percent. MinmStat. § 278.05, subd. 4.

In this case, the court determined that the subject property met the criteria for a reduction since the study included 51 sales in Wayzata and the median ratio was 87.2 percent for 1996. The tax court interpreted the statute to not require a time adjustment if the DOR does not report one. When the county claimed that the tax court applied a sales ratio figure that was not adjusted for time, the court agreed to hear testimony from a DOR senior research analyst supervisor.

The analyst testified that, at a 95-per-cent confidence level, the DOR did not find a statistically significant rate of inflation. The analyst did acknowledge that, at an 88 percent confidence level, the department found between 3½ and 4 percent inflation. The analyst did not recall using a confidence level of less than 90 percent when assessing inflation, however. In essence, the analyst’s testimony supports the conclusion that there was no significant “difference in the date of sale compared to the assessment date.” Minn.Stat. § 278.05, subd. 4. As such, the evidence reasonably supports the tax court’s conclusion that a time adjustment to a sales ratio study was not appropriate where the DOR reported no statistically significant rate of inflation during the study period. The court explained its findings for each element necessary for a reduction in property value, including the time adjustment, under Minn.Stat. § 278.05, subd. 4. Therefore, the court’s decision to reduce the property value based on the sales ratio study was not clearly erroneous. See Marquette Bank, 589 N.W.2d at 305.

D. Market Comparison Study

The county next argues that where the tax court accepted, without modification, the testimony of respondent’s appraiser regarding market comparisons, one is left with a firm conviction that a mistake was made. Both appraisers used the same two comparable sales in their analyses but varied in their adjustments to account for the differences between the comparable properties and respondent’s property. Respondent’s appraiser testified that respondent’s property was inferi- or to the comparable properties. The county claims that the weight of the evidence, including its own appraiser’s testimony and the testimony of a third appraiser, supports a finding that respondent’s property was superior to the two comparable properties considered.

■ The court concluded that the adjustments made by respondent’s appraiser more closely accounted for differences between the comparable properties and the subject property. In effect, the tax court simply found more creditable the analysis of respondent’s appraiser. The tax court is in the best position to evaluate the credibility of witnesses. F-D Oil, 560 N.W.2d at 706. Where the tax court concluded that adjustments to market comparisons made by one appraiser more closely accounted for differences in the properties, the tax court did not clearly err in accepting that appraiser’s market comparison value.

E. Land Value

The county argues that the tax court erred by failing to explain its finding that that scarce lakeshore property in an exclusive neighborhood did not increase in value from the $1.6 million sale price in the four and five years between purchase and valuation. We disagree.

The tax court explained in the memorandum attached to its order that respondent’s appraiser better accounted for the unique qualities that decreased the value of the property: the relatively small lakeshore frontage, the irregular shape of the property and the conservation easement restricting use of the property. Respondent’s appraiser concluded that respondent paid too much for the land. Where the tax court credited one appraiser’s explanation for the consistent value of the land, we cannot say that the evidence as a whole fails to reasonably support the decision or that the court failed to explain its reasoning. See Equitable Life, 530 N.W.2d at 552.

F. Deceased Appraiser’s Report

The county argues that the tax court erred by admitting into evidence a deceased appraiser’s report, which was appended to the report of respondent’s appraiser and which the county claims is hearsay. The tax court’s evidentiary ruling will not be disturbed absent legal error or abuse of discretion. Marquette Bank, 589 N.W.2d at 307.

An expert may base his or her opinion on facts or data that the expert perceived or that were made known to the expert at or before the hearing. Minn. R. Evid. 703(a). If the expert reasonably relies on those facts or data to form opinions or inferences, the facts or data need not be admissible as evidence. Id. Respondent’s appraiser testified that he relied on the deceased appraiser’s report for building size, land layout and the report’s role in a “real life transaction,” as a bank relied on the deceased appraiser’s report to evaluate financing in 1994. Because the deceased appraiser’s report was offered for a purpose consistent with Rule 703(a), we conclude that the tax court did not abuse its discretion in admitting the report into evidence as part of respondent’s appraiser’s report.

Even if the county had demonstrated that the tax court abused its discretion in admitting the report, we do not find the evidentiary ruling unfairly prejudiced the county. See Marquette, 589 N.W.2d at 307 (holding that even if evidence admitted in error, admission must result in material prejudice to warrant reversal). The report is mentioned briefly in a footnote to the tax court’s original order as one of five appraisals that the court considered. The court also explained that the deceased appraiser did not testify and that his report was only an attachment to the report of respondent’s appraiser. The court also noted that respondent’s appraiser had prepared an earlier, independent appraisal that provided the same valuation as the appraisal that included the deceased appraiser’s report. Thus, the tax court placed little, if any, reliance on the deceased appraiser’s report and the county was not unfairly prejudiced by the eviden-tiary ruling.

In sum, we hold the tax court’s decision is not clearly erroneous because the record includes evidence that reasonably supports the tax court’s conclusions and because the tax court explained its reasoning in reaching its valuation.

Affirmed.

      . A sales ratio study compares the sale prices of recently sold properties to their assessed values.

      . For example, in this case neither party contends that the income approach is applicable, given that there is little or no rental market for properties of this type. Accordingly, the tax court focused on the market comparison and cost approaches.


author: CRIPPEN, Judge

text:
    Todd LADWIG individually and dba Contemporary Tool and Design, Respondent, v. George CHATTERS, Aaron Chatters, Water People International, Waterproof International, Inc., a Minnesota corporation, Aquatic Systems International, Inc., a Nevada corporation, and Submerge Products Limited Liability Company, Appellants.
    No. CX-00-1628.
    Court of Appeals of Minnesota.
    March 6, 2001.

      Scott W. Lofthus, Sjostrom and Lofthus, Wayzata, MN, for respondent.
    Scott K. Goldsmith, Stacy A. Woods, Goldsmith & Associates, Ltd., Minneapolis, MN, for appellants.
    Considered and decided by CRIPPEN, Presiding Judge, HARTEN, Judge, and HANSON, Judge.
   OPINION

CRIPPEN, Judge

Appellants George Chatters et al., challenge both the trial court’s authority and the merit of its decision to excise words from an injunction in a prior judgment. We affirm.

FACTS

In October 1998, respondent Todd Lad-wig filed a complaint seeking money damages, an injunction, and other relief from appellants, his would-be business associates. The trial court granted respondent’s motion for a default judgment in December 1998, awarding him money damages but also enjoining appellants from “continuing the business enterprise.” Respondent acknowledges on appeal that he sought the injunction to induce satisfaction of the money judgment, not to protect some other claimed interest in the business.

In March 2000, the court amended the judgment to clarify that appellants were enjoined from continuing in the business enterprise only insofar as they did so “to the exclusion of Plaintiffs.” In its second amendment to the judgment in July 2000, the court eliminated the phrase “to the exclusion of Plaintiffs,” explaining that the parties had disputed the interpretation of this phrase and the dispute prevented respondent from receiving the relief he was entitled to in the default judgment.

Appellants challenge the second amendment to the judgment.

ISSUES

1. Did the trial court exceed its jurisdiction in the second amendment of its earlier judgment?

2. Did the judgment as amended provide relief beyond what was sought in the initial complaint?

ANALYSIS

1. Subject-matter jurisdiction

Appellants insist that the trial court lacked jurisdiction for its second amendment to the judgment because it did not clarify or enforce the judgment but modified it without an adequate basis. Subject-matter jurisdiction is a question of law that this court reviews de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn. 2000). The appellate court gives great weight to the trial court’s construction of its own judgment. Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn.App.1987), review denied (Minn. Dec. 22,1987).

We conclude, as the trial court evidently did, that the second amendment to the judgment was not a modification but an interpretation and clarification of the court’s earlier decree. Where the terms of a judgment are ambiguous or indefinite, the court that ordered the judgment may clarify or interpret it. Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131 (1955). The purpose of the court’s original judgment was to provide respondent with a meaningful interest in any continuing operation of the business and the first amendment to the judgment defeated that purpose. Moreover, if the second amendment can be viewed as anything other than a clarification, the court indicated that its aim in changing the words was to compel enforcement of the judgment. A court possesses the power to enforce its own orders. See Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn.App.1985).

2. Rule 54.03

Appellants contend that the trial court ordered relief beyond what respondent had asked for in his initial complaint. Rule 54.03 mandates that “[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” Minn. R. Civ. P. 54.03. In its order for the second judgment amendment, the trial court reversed its earlier view on the questions and found that respondent had in fact claimed an ownership interest and a right-of-revenue interest.

The complaint alleges the adverse effects of appellants’ breach of fiduciary duties and the adverse effects of continuing the business enterprise, which respondent characterized as “to the exclusion of plaintiffs.” The allegations may suggest respondent’s expectation that the court could permit the business operation with provision for respondent’s meaningful inclusion, but it does not suggest that respondent thought the business enterprise could or should be continued. Because the allegations and the prayer for relief fairly suggest the call for a meaningful, permanent injunction, there is an adequate basis for the trial court’s judgment. Cf. Duenow v. Lindeman, 223 Minn. 505, 517, 27 N.W.2d 421, 428 (1947) (finding the trial court “clearly departed from the complaint” by awarding “relief for which there is no basis therein”); Beliveau v. Beliveau, 217 Minn. 235, 245, 14 N.W.2d 360, 366 (1944) (“A court of equity has the power to adapt its decree to the exigencies of each particular case so as to accomplish justice.”).

3. Due process

Appellants suggest that the judgment in its current form offends due process but explain this assertion solely by stating that the amendment unlawfully modified the prior judgment and granted relief beyond the demand for judgment. Because appellants have not shown the merit of either of these theories, the case presents no separate constitutional issues.

DECISION

The trial court’s amendment to the judgment was within the scope of its jurisdiction to clarify the document, and the relief it provided was of a kind called for by the initial complaint.

Affirmed.

      . The time for appeal on the initial judgment has passed and appellant has not asked that we review its legality under Minn. R. Civ.App. P. 103.04. As a result, we have not undertaken to determine whether the original default judgment is lawful. See Lindberg v. Gebo, 381 N.W.2d 905, 907 (Minn.App. 1986) ("[Ijnjunc-tive relief is a remedy to protect preexisting rights and a court cannot create a right and then enforce it by injunction. Moreover, because appellant has two legal remedies available, * * * equitable relief is inappropriate.” (quotation and citations omitted)), review denied (Minn. May 16, 1986). In addition, although appellants brought a motion to vacate under rule 60.02, they have never presented the trial court with the proposition that relief from the operation of the original judgment would be justified because the default judgment granted two remedies for the same claim. See Minn. R. Civ. P. 60.02(1) (providing relief for "[ajny other reason justifying relief from the operation of the judgment”).

      . The trial court found:

        The Court agrees with the Plaintiff that the Court was incorrect in the Court's Order, ¶ 23, when the Court stated that in the Complaint “Plaintiff did not ask for” for [sic] a percentage ownership or right of revenue interest (in Defendant companies). The Court agrees that Plaintiff repeatedly has recited Plaintiffs ownership interest and sought relief based upon that interest. The Court agrees with the Plaintiff that if the interpretation of the Amended Order precludes Plaintiff's ownership interest, then it also does not provide what Plaintiff requested in the Complaint, sought in the prayer for relief, and should receive as the result of a judgment by default.
      (citation omitted).

      . The trial court found that "while Defendant Chatters may be technically complying with the permanent injunction, he is avoiding the intent of it by forming other corporate entities” and "has taken no measures to satisfy the judgment against him.”


author: SHUMAKER, Judge

text:
    Mary Lou VAN SLOOTEN, Respondent, v. ESTATE OF Linda Kay SCHNEIDER-JANZEN and Daniel Janzen, as personal representative, Appellants.
    No. C6-00-1268.
    Court of Appeals of Minnesota.
    March 6, 2001.
    Thomas M. Fafinski, Peter L. Crema, Fafinski, Wallrich & Roos, Minneapolis, MN, (for respondent).
    James P. Ashley, Edina, MN, (for appellants).
    Considered and decided by SHUMAKER, Presiding Judge, HANSON, Judge, and FOLEY, Judge.

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

   OPINION

SHUMAKER, Judge

Respondent attempted to commence a personal injury action against the driver-owner of an automobile but learned that she had died. Respondent amended her pleadings to name as defendants the decedent’s estate and decedent’s husband, as personal representative. No personal representative was ever appointed. Appellants moved to dismiss the action for insufficiency of service of process. The district court ruled that decedent’s husband had actual notice of the claim and that the action, although improperly commenced, could be maintained against decedent’s estate. Because such an action is maintainable only against the personal representative of the decedent’s estate, the district court erred in denying appellants’ motion to dismiss.

FACTS

On September 7, 1993, Linda Kay Schneider-Janzen was driving an automobile, of which she was sole owner, when it collided with an automobile driven by respondent Mary Lou Van Slooten. Both drivers were injured.

Schneider-Janzen and her husband, appellant Daniel Janzen, sued Van Slooten for damages resulting from the collision. Van Slooten did not counterclaim. After trial, the jury returned its special verdict finding Schneider-Janzen totally at fault for the accident.

Schneider-Janzen died on October 22, 1998. There was no probate of her estate and no personal representative was ever appointed.

On August 23, 1999, a Hennepin County deputy sheriff delivered to Daniel Janzen at his home a copy of a summons and complaint in a lawsuit brought by Van Slooten against Schneider-Janzen, asserting a claim for damages from the automobile accident of September 7,1993. Daniel Janzen told the deputy that Schneider-Janzen had died, and the deputy noted on the certificate of service, “Linda Died Oct 22,1998.”

The six-year statute of limitations for bringing negligence claims expired on September 7,1999.

Van Slooten served Daniel Janzen with an amended summons and complaint on November 22, 1999, naming as defendants the estate of Schneider-Janzen and Daniel Janzen as personal representative. Neither Janzen nor anyone else had been appointed as personal representative of the estate.

Janzen answered and asserted defenses of insufficiency of service of process and statute of limitations. He then moved to dismiss the action under Minn. R. Civ. P. 12.02(d) for insufficiency of service of process. The district court denied the motion on the ground that, even though the lawsuit had not been properly commenced, Janzen had actual notice of the action. Janzen appeals.

ISSUES

1. Is an order denying a Minn. R. Civ. P. 12.02(d) motion to dismiss for insufficiency of service of process reviewable?

2. When a person who is liable for a personal injury dies before a lawsuit is commenced, and no personal representative of'the decedent’s estate has been appointed, is a lawsuit effectively commenced by merely naming the decedent’s spouse as personal representative in the summons and complaint and then serving the decedent’s spouse?

3. Does the relation-back doctrine apply when the proper defendant has never been served with a summons?

ANALYSIS

Van Slooten suggests that this is an appeal from a denial of a summary judgment motion and as such is not ripe for review. It is clear from the order of June 21, 2000, that the district court denied Janzen’s Rule 12 dismissal motion. Such order is appealable and is ripe for review. Hunt v. Nevada State Bank, 285 Minn. 77, 88-89, 172 N.W.2d 292, 299-300 (1969).

The application of court rules and the determination of the sufficiency of service of process are questions of law that we review de novo. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn. 1996) (examining rule of civil procedure under de novo standard); McBride v. Bitner, 310 N.W.2d 558, 561-63 (Minn.1981) (examining the propriety of service of process under a de novo standard).

In Minnesota, a civil action is commenced against a defendant by serving a summons on that defendant. Minn. R. Civ. P. 3.01. If the defendant dies prior to the commencement of the lawsuit, the claim against the deceased individual abates. Zahler v. Manning, 295 N.W.2d 511, 512 n. 2 (Minn.1980). By virtue of the survivorship statute, a claim against a decedent may be brought against the personal representative of the decedent’s estate. Minn.Stat. § 573 .01 (1998); see also Minn. Stat. § 524.3-104 (1998) (no proceeding to enforce a claim against an estate may be commenced before the appointment of a personal representative). A personal representative is someone who is qualified to serve in that capacity, is appointed by the court, and accepts the appointment. See Minn.Stat. § 524.3-601 (1998) (before receiving letters, the personal representative must qualify with the appointing court); Minn.Stat. § 524.3-602 (1998) (by accepting appointment, a personal representative submits to the jurisdiction of the court for any proceeding relating to the estate).

Having the capacity to be sued, the personal representative becomes the proper defendant for claims against a decedent’s estate:

The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction, to obtain payment of the claim against the estate * * *.

Minn.Stat. § 524.3-804(2) (1998).

As the supreme court said in Wood v. Martin, 328 N.W.2d 723, 725 (Minn.1983): “A cause of action does not exist in the abstract; it exists against somebody.” Here, that “somebody” is Schneider-Jan-zen during her lifetime and her duly-appointed personal representative after her death. Like the plaintiff in Wood, Van Slooten has sued neither person and therefore she never commenced an action that could reach Schneider-Janzen’s estate. The district court did not err in holding that the action had not been properly commenced.

But the district court erred in holding that an action may be maintained because Daniel Janzen had actual notice of the claim. Janzen personally had no responsibility for the occurrence. Nor was he an owner of his wife’s automobile so as to subject him to vicarious liability. He is not the personal representative of his wife’s estate and there is no evidence to suggest that he would qualify for or even accept such appointment. We are aware of no law that makes him a presumptive personal representative for purposes of bringing a claim against the estate. Notice to Janzen of a claim against his deceased wife’s estate is of no legal significance. Service of process on Janzen was insufficient to commence an action against the estate of Schneider-Janzen and the district court erred by failing to grant Janzen’s motion to dismiss the lawsuit.

Finally, Van Slooten argues that the amended summons and complaint relate back to the original summons and complaint, which were served before the expiration of the statute of limitations. The flaw in Van Slooten’s argument is that the relation-back doctrine under Minn. R. Civ. P. 15.03 does not allow the creation of a lawsuit when action has not been properly commenced in the first instance. See Regie de l’assurance Auto, du Quebec v. Jensen, 399 N.W.2d 85, 92 (Minn.1987) (refusing to allow a relation-back amendment to a subrogation claim that should have been brought as a wrongful-death claim by an appointed trustee, finding that the original action was a “legal nullity” and that there was nothing to which the attempted amendment could relate back). Van Slooten has never commenced an action against a personal representative of Schneider-Janzen’s estate. Thus, there exists no action to which the amendment can relate back.

DECISION

Because respondent never served a summons on the personal representative of decedent’s estate, respondent failed to commence an action against the estate and the district court erred by failing to dismiss the lawsuit for insufficiency of service of process.

Reversed.


author: HALBROOKS, Judge

text:
    Mark R. CHRISTOPHERSON, et al., Respondents, v. CITY OF ALBERT LEA, Appellant.
    No. C4-00-1561.
    Court of Appeals of Minnesota.
    March 13, 2001.

      Edward E. Beckmann, Miller & Keller-meier, P.A., Edina, MN, for respondents.
    Mary D. Tietjen, Carla J. Heyl, League of Minnesota Cities, St. Paul, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, HALBROOKS, Judge, and FOLEY, Judge.*
   HALBROOKS, Judge

Respondents Mark R. and Karrie K. Christopherson sued appellant city Albert Lea, alleging the city was liable on several theories for damage to their home resulting from sewer backup. The city brought a motion for summary judgment. The district court granted a portion of the motion, dismissing respondents’ theories of breach of contract and a taking of property without just compensation. But the district court denied the portion of the city’s motion seeking an immunity-based summary judgment under Minn.Stat. § 466.03, subd. 6 (2000). The city appeals, alleging that the conduct at issue-the city’s management of its sewer system — involves planning-level decisions that entitle it to immunity. Because we conclude that the city’s choice of maintaining its systems is a policy-making decision, the city is entitled to statutory immunity. We reverse.

FACTS

Respondents live in the Virginia Place neighborhood, the lowest part of the city. Over the years, this neighborhood has suffered periodic flooding following intense rainfall. After flooding in 1978, the city encouraged residents to move out of the area by providing funding to relocate. Respondents purchased their home in 1987 from a resident who decided not to relocate. Before the July 13, 1997 storm involved in this matter, respondents had never experienced a sewer backup in their home or complained to the city about any problems with the sewer system.

The city system has two separate types of sewers — storm and sanitary. But sanitary sewers are designed to handle a certain amount of inevitable infiltration or inflow (I/I) of storm water. The city has 19 sanitary-sewer-lift stations and 4 storm-sewer-lift stations to reduce water levels in the city’s approximately 100 miles of sanitary-sewer lines. When sewage reaches a certain level, one of the lift station’s two pumps begins pumping water out of the sewer. Both pumps may be activated if the sewage reaches too high a level. Lift stations are inspected every day and repaired or replaced as necessary. The city attempts to upgrade one lift station each year with new pumps. Respondents’ neighborhood is serviced by the lift station at 6th Street and St. John Avenue (“the 6th Street station”). The 6th Street station was built in 1930 and had its pumps replaced in January 1971. The policy for annual maintenance and inspection of the sanitary sewer system includes jetting approximately one-fourth of the system and cleaning 35 locations. The portion of the sewer that serves respondents’ residence is one of seven locations that is cleaned twice a year.

The city commissioned an engineering study of its sewer systems in 1975 to determine whether or not the city’s sewer system had excessive I/I. As a part of its analysis, the independent engineering firm concluded that the most cost-effective approach to addressing I/I was to provide wastewater facilities to transport and treat waste rather than attempting to reduce I/I levels. The city adopted the recommendation and constructed a wastewater treatment plant at a cost of over $33 million. The work was completed by 1983. There were no reported problems with sewer backups between 1983 and 1993.

In 1993, the city was one of several Minnesota communities that experienced substantial flooding. The flooding caused problems with the infiltration system that reduces the amount of excess storm water that indirectly enters the sewers. The city council considered its options to address the increased infiltration levels and chose to take corrective action in problem areas rather than undertaking a city-wide infiltration study. The city also enacted an ordinance in 1995 that prohibits connection of roof, groundwater or surface water drains to the sanitary sewer system.

On July 13, 1997, heavy rainfall caused flash flooding in the city. The flooding was so extensive that the lift stations could not accommodate the excess water draining into the sewers. Although the ' sanitary-sewer-lift stations operated properly, some could not keep up with rainfall. The storm occurred late on a Sunday evening, but a city superintendent was able to assemble ten employees to effectuate the city’s emergency response plan. Within an hour and 15 minutes of the storm’s beginning, city crews made sure that the four storm-sewer-lift stations were operating; inspected the 19 sanitary-sewer-lift stations; and placed portable pumps at seven of the stations that could not keep up with the flow of water, including the 6th Street station.

The next morning, respondents discovered one and one-half feet of raw sewage in their basement. The cost of cleaning and repairing respondents’ basement and compensating their property loss was $17,745.82. Respondents sued the city, alleging four causes of action: breach of contract, negligence, nuisance, and inverse condemnation. The city moved for summary judgment on the ground that it was entitled to statutory discretionary immunity under Minn.Stat. § 466.03, subd. 6 (2000).

The district court dismissed respondents’ breach of contract and condemnation claims, but denied summary judgment with respect to respondents’ negligence claim. The court also found that the city could not raise a statutory-immunity defense. This appeal follows solely on the issue of statutory immunity.

ISSUE

Is the city entitled to statutory immunity based on policy-making decisions?

ANALYSIS

We review an order denying summary judgment by determining whether there are genuine issues of material fact and whether the district court erred in applying the law. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 218-19 (Minn.1998). Whether immunity applies is a legal question, which is reviewed de novo. Id. at 219. The party asserting a defense of immunity has the burden of proof. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn.App.1998), review denied (Minn. July 16,1998).

The common law doctrine of government immunity for municipalities was essentially abolished in Spanel v. Mounds View Sch. Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962). Today, such immunity exists as a matter of legislative grace. See Minn. Stat. ch. 466 (2000). The statute immunizes municipalities against certain claims, including “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Minn.Stat. § 466.08, subd. 6. Further, the statute places limitations on the extent of a municipality’s liability. Minn.Stat. §§ 466.04 (establishing maximum limits of liability), 466.06 (procuring liability insurance waives a municipality’s liability only to the extent of coverage).

Such immunity, commonly referred to as statutory or discretionary immunity, prevents judicial review of executive and legislative policy-making decisions. Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996). Although nearly all governmental acts require some discretion, the statute only protects acts that require the balancing of policy objectives such as social, economic, and political factors. Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn.App.1998). Courts have interpreted the statute granting immunity narrowly. Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn.2000).

Determining whether a municipality is entitled to immunity involves a two-step test. Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 346 (Minn.1998). The first step is to ascertain exactly what governmental conduct is being challenged, and the second step is whether the conduct is operational or policy-making. Id. at 346-47. Policy-making decisions

are those involving questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy. Operational level decisions, on the other hand, involve decisions relating to the ordinary day-to-day operations of the government.

Holmquist v. State, 425 N.W.2d 230, 232 (Minn.1988). Distinguishing between policy-making activities and operational activities involves gray areas, but “the underlying consideration is whether the conduct involves the balancing of public policy considerations in the formulation of policy.” Angell, 578 N.W.2d at 347 (quotations omitted).

Here, the city contends that the district court erred in the initial step of the analysis because it failed to identify the precise conduct being challenged. The district court stated that it agreed with respondents that “[i]t is not a policy decision to not know how much sewage is flowing through” the city sewage system. The city argues that the court should have found that its conduct was policy-making because it involved long-term decisions regarding its budget and sewer maintenance, repair, and inspections. Therefore, the city argues Minn.Stat. § 466.03, subd. 6, shields it from the consequences arising from those decisions.

We agree with the city and conclude that the conduct at issue here is the manner in which the city maintained its sewer system. As the Minnesota Supreme Court held, a “city’s decision not to remedy” a defect in its sewer system “was clearly of a policy-making nature.” Chabot v. City of Sauk Rapids, 422 N.W.2d 708, 710-11 (Minn.1988). Although Chabot involved a defective storm sewer system rather than a sanitary sewer system, Chabot closely parallels this case in that in both cases the city decided not to make immediate capital improvements to its sewer systems because of budgetary constraints, and when hit by an extraordinary storm, the city’s sewage system was unable to cope with the excess drainage. Property damage resulted to residents in “the lowest points in the landscape.” Id. at 709.

Further, the record contains evidence that the city did engage in the weighing of issues that entitles it to immunity. The independent report commissioned by the city made a recommendation how to deal with the infiltration that the city adopted. Cf. Chabot, 422 N.W.2d at 709 (noting that the city’s capital improvement recommendations called for fixing the defect that caused flooding but that it was not an immediate priority). Such a decision was clearly policy-making, not operational, in nature because it involved balancing financial and policy considerations.

Respondents believe the 1975 report and other discussions about the cost of capital improvements “are irrelevant to this claim because they discuss the entirety of the storm water system and sanitary sewer system.” We disagree. We do not believe that it is necessary for the city to introduce some document that specifically addresses the 6th Street station or the Virginia Place neighborhood to be entitled to immunity. The conduct at issue here is the city’s decisions concerning a problem with its infiltration system. Although the consequences of infiltration may have impacted respondents’ low-lying neighborhood more severely than other areas, the problem affected the entire city. Therefore, the report and other documents are relevant because they suggest that the city was aware of the infiltration problems with the system and attempted to address them in a financially feasible way.

Respondents also argue that city employees failed to perform at least eight fundamental duties, and that this failure led to improper maintenance of the sewer system. Respondents contend that the failure to perform these duties is based solely on operational decisions made by city employees and, therefore, the city is not entitled to statutory immunity. If the employees had fulfilled these duties, respondents believe the damage to their property could have been avoided.

Respondents correctly note that there is a long line of cases establishing that a municipality “is liable for damages resulting from its failure to exercise ordinary or reasonable care to keep [its sewer] in repair and free from obstructions.” Jindra v. City of St. Anthony, 533 N.W.2d 641, 643 (Minn.App.1995) (quotations omitted). But none of these cases addresses the issue of statutory immunity.

Further, if the relevant conduct at issue involves a combination of policy-making and operational decisions, then the city is still entitled to immunity. Fisher v. County of Rock, 596 N.W.2d 646, 652 (Minn.1999) (“[I]f in addition to professional or scientific judgment, policy considerations played a part in making a decision, then planning level conduct is involved and statutory immunity applies.” (citation omitted)). Thus, even if city employees were negligent in performing operational duties, it was due in part to the city’s funding decisions not to purchase alarms and flow or time meters.

DECISION

The city demonstrated that its conduct involved policy-making when it decided how to maintain its sewage system. We find that it is entitled to immunity under Minn.Stat. § 466.03, subd. 6 (2000), from the consequences of this decision and, therefore, we reverse the district court’s decision.

Reversed.

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


author: KALITOWSKI, Presiding Judge.

text:
    In the Matter of the WELFARE OF V.D.M., Child.
    No. C2-00-1221.
    Court of Appeals of Minnesota.
    March 20, 2001.
    Review Denied May 15, 2001.
    John Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, St. Paul; and Amy Klobuehar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, for respondent.
    Considered and decided by KALITOWSKI, Judge, SCHUMACHER, Judge, and STONEBURNER, Judge.
   OPINION

KALITOWSKI, Presiding Judge.

Appellant V.D.M. challenges the juvenile court’s revocation of her extended jurisdiction juvenile status contending the juvenile court lacked jurisdiction over her because she became 21 prior to the court’s order.

FACTS

The facts of this case are undisputed. On August 15, 1996, appellant entered an admission to a charge of intentional murder in the second degree. On September 3, 1996, appellant was adjudicated delinquent and designated an extended jurisdiction juvenile (EJJ). She received a stayed adult prison sentence of 306 months conditioned upon her successful completion of juvenile probation. She was placed on juvenile probation until her 21st birthday.

On October 9, 1996, appellant was ordered into placement at the San Marcos Female Offender Program at the Brown School in San Marcos, Texas. On March 31, 1998, appellant was released from San Marcos and placed in juvenile detention until her review hearing. After review hearings in April 1998 the juvenile court continued appellant’s EJJ probation and ordered her into placement at the ReEntry Metro group home.

On January 4, 1999, the juvenile court ordered appellant to live in the home of her father and stepmother and maintain employment. It also continued all prior consistent orders, including a prohibition of the use of nonprescription drugs.

On August 25, 1999, appellant disclosed to her probation officer that she had used marijuana on or about August 21, 1999. That same day, appellant submitted to a urinalysis test and tested positive for marijuana. On August 27, 1999, the juvenile court executed an Arrest and Detention Order based upon allegations of appellant’s probation officer that appellant had violated her probation by using marijuana, missing scheduled appointments with her therapist, and failing to maintain employment.

At a hearing on September 24, 1999, appellant denied the probation violation allegations, waived a probable cause hearing on the Arrest and Detention Order, demanded a formal Morrissey hearing on the allegations, and waived speedy proceedings.

The first date available to begin the revocation proceeding was November 9, 1999, but appellant’s attorney had to reschedule because of a conflict. The matter was rescheduled for December 10, 1999, but appellant’s attorney had another scheduling conflict and requested a continuance. The court granted the continuance and scheduled the first appearance for December 21, 1999. The hearing commenced on this date, but the parties requested an additional hearing for further testimony. Appellant’s case was scheduled to resume on January 28, 2000, but the court had to continue the matter because the assistant county attorney was ill. The hearing was rescheduled for February 16, 2000, but the court granted another continuance because appellant’s probation officer, a key state witness, was unavailable. The next hearing date, set for February 25, 2000, was canceled because appellant’s attorney had a scheduling conflict. Finally, on February 28, 2000, additional testimony was heard.

Prior to commencement of the February 28 hearing, the court expressed frustration about the delays of appellant’s case. The court noted that appellant’s counsel was responsible for the majority of continuances, expressed concern about appellant’s approaching 21st birthday, and warned that previous court delays would not justify terminating its juvenile court jurisdiction.

The revocation hearing was not completed on February 28 because more witnesses needed to be called. The court attempted to schedule the next hearing for a date prior to appellant’s 21st birthday, but the only date acceptable for appellant’s attorney conflicted with the assistant county attorney’s vacation schedule. The assistant county attorney offered to cancel her vacation if the court requested her to do so. The court asked appellant’s attorney if he objected to resuming the hearing after March 9, 2000, appellant’s 21st birthday, and he replied that he did not.

Appellant’s revocation hearing resumed on March 10, 2000, and appellant’s counsel argued, for the first time, that because appellant had turned 21, the court no longer had jurisdiction over her. The juvenile court disagreed and ruled that it continued to have jurisdiction over the matter because (1) jurisdictional issues ' had been waived; (2) the proceedings began before appellant’s 21st birthday; (3) appellant’s counsel was responsible for many of the delays; and (4) appellant had waived her right to speedy proceedings. The court heard additional testimony and scheduled the final hearing date for March 17, 2000. This hearing had to be rescheduled because appellant gave birth to a child. The EJJ probation revocation hearing finally concluded on April 25, 2000, and the court ordered the parties to submit written final arguments. On June 16, 2000, the court revoked appellant’s EJJ probation status and ordered that she be treated as an adjudicated adult offender subject to adult probation, staying the execution of her adult sentence until appellant’s 26th birthday.

ISSUE

Did the juvenile court have jurisdiction to issue an order revoking appellant’s EJJ probation after appellant’s 21st birthday?

ANALYSIS

Because a statute initially provided the basis for the district court’s jurisdiction over appellant, “the issue of the district court’s jurisdiction is a question of law that is fully reviewable by this court.” State v. Behl, 564 N.W.2d 560, 563 (Minn. 1997) (citation omitted). Ordinarily, the jurisdiction of a juvenile court only continues until an individual becomes 19 years old. Minn.Stat. § 260B.193, subd. 5(a) (2000). But in instances where a juvenile has allegedly committed a felony offense, the EJJ statute provides for extended jurisdiction. Minn.Stat. § 260B.130, subd. 1 (2000). Under the EJJ statute, a juvenile court retains jurisdiction until a juvenile reaches the age of 21. Minn.Stat. § 260B.193, subd. 5(b) (2000).

Appellant contends the juvenile court lacked jurisdiction to revoke her EJJ probation because she became 21 years of age before the court issued its order. She cites MinmStat. § 260B.193, subd. 5(b), which provides:

The jurisdiction of the court over an extended jurisdiction juvenile, with respect to the offense for which the individual was convicted as an extended jurisdiction juvenile, extends until the offender becomes 21 years of age, unless the court terminates jurisdiction before that date.

But the delinquency statute also provides that a

juvenile court has jurisdiction to designate the proceeding an extended jurisdiction juvenile prosecution, to hold a certification hearing, or to conduct a trial, receive a plea, or impose a disposition * * *jf.
(1) an adult is alleged to have committed an offense before the adult’s 18th birthday; and
(2) a petition is filed * * * before the adult’s 21st birthday.

Minn.Stat. § 260B.193, subd. 5(c) (2000) (emphasis added). We conclude that, while not controlling, section 260B.193, subdivision 5(c), is instructive in deciding this case.

“The objective of statutory interpretation is to ascertain and effectuate the intent of the legislature.” State v. Coauette, 601 N.W.2d 443, 445 (Minn.App.1999) (citations omitted), review denied (Minn. Dec. 14, 1999). Courts may presume that the legislature did not intend an absurd or unreasonable result. Minn.Stat. § 645.17(1) (2000). The legislature in section 260B.193, subdivision 5(c)(2), specifically extends the juvenile court’s jurisdiction beyond an individual’s 21st birthday as long as the EJJ petition was filed “before the adult’s 21st birthday.” If a juvenile court can conduct a trial, receive a plea, or impose a disposition on an individual who has turned 21, it is reasonable that the court also has jurisdiction to complete an EJJ probation revocation proceeding that was commenced before the individual’s 21st birthday. To rule otherwise would lead to the disfavored and unreasonable result of an adult individual avoiding punishment, or getting off “home free,” simply because of the technicality of exceeding the jurisdictional age. See In re Welfare of A.N.J., 521 N.W.2d 889, 890 (Minn.App.1994) (stating a home free argument based solely upon age must fail), review denied (Minn. Nov. 29, 1994); In re Welfare of S.V., 296 N.W.2d 404, 407 (Minn.1980) (describing the home free argument as unreasonable and absurd).

In addition, our holding is consistent with prior cases addressing jurisdictional issues involving age. See A.N.J., 521 N.W.2d at 891 (concluding that a juvenile court had jurisdiction to preside over reference hearing and refer case for adult prosecution of a child who reached age 19 during the course of the proceedings, even though the state moved for reference after the individual’s 19th birthday, where the “delay between the date the investigation * * * began and the date that the [delinquency] petition * * * was filed was not the result of any improper state purpose” (quotation omitted)); In re Welfare of C.A.N., 370 N.W.2d 438, 442-43 (Minn.App.1985) (holding that juvenile court had jurisdiction after an individual’s 19th birthday to “complet[e] an adjudication on the allegations of delinquency” brought prior to an individual becoming 19 years of age).

We reject appellant’s argument that this case is controlled by cases holding that a district court does not have jurisdiction to revoke the probation of an adult probationer after expiration of the probationary period. See State v. Whitfield, 483 N.W.2d 102, 104 (Minn.App.1992) (holding that the district court exceeded its jurisdiction in revoking probation when the defendant could be located); State, City of Eagan v. Stofferahn, 434 N.W.2d 501, 502 (Minn. App.1989) (reversing district court decision to toll the period of a stay before the stay of sentence expired so that revocation proceedings could be heard at a later date, and finding that district court had no authority to continue stay for a longer period). First, the cases appellant cites have been superceded by a change in the law extending the time to revoke probation past the expiration of the stay of probation if proceedings are initiated within six months after expiration of the stay. See Minn.Stat. § 609.14, subd. 1(b) (2000). More importantly, these cases are not persuasive authority concerning extending jurisdiction in matters regarding EJJ probation revocation in light of the above referenced caselaw addressing the issues of jurisdiction and age.

Finally, the facts here support the district court’s finding of continuing jurisdiction. Appellant’s probation revocation proceedings were commenced more than six months prior to her 21st birthday, and appellant’s attorney was responsible for most of the delay. Moreover, appellant and her attorney were informed by the court that the delays would not warrant a termination of juvenile court jurisdiction if the matter was not completed before appellant’s 21st birthday. Despite this warning, appellant’s counsel requested yet another continuance, knowing the next available date for a hearing was after appellant’s 21st birthday. The right to a speedy trial is not absolute, especially when the delay is caused primarily by the defendant’s actions. See State v. Johnson, 498 N.W.2d 10, 16 (Minn.1993). Thus, in addition to our determination that the juvenile court retained jurisdiction under the statute, we conclude that because appellant explicitly waived her right to speedy proceedings, and her attorney neither objected to nor avoided delays, the district court properly determined its jurisdiction over appellant continued after she became 21.

DECISION

Because appellant’s EJJ probation revocation hearing commenced before she became 21 years of age, the juvenile court retained jurisdiction to decide the matter after her 21st birthday.

Affirmed.


author: CRIPPEN, Judge.

text:
    Wilbur HANNAN, Relator, v. CITY OF MINNEAPOLIS, Respondent.
    No. C6-00-1335.
    Court of Appeals of Minnesota.
    March 20, 2001.

      Ronald I. Meshbesher, Jonathan M. Peck, Meshbesher & Spence, Ltd., Minneapolis, MN, for relator.
    Jay M. Heffern, Minneapolis City Attorney, Peter W. Ginder, Assistant City Attorney, Minneapolis, MN, for respondent.
    Considered and decided by CRIPPEN, Presiding Judge, HARTEN, Judge, and HANSON, Judge.
   OPINION

CRIPPEN, Judge.

Because relator has not identified conflicts between state and local law on the control and destruction of dangerous animals, we affirm an order of destruction issued by the City of Minneapolis. We also find no merit in relator’s arguments that state law preempts the municipal ordinance or that city proceedings occurred in this case without due process.

FACTS

In June 2000, the City of Minneapolis Animal Control Division issued an order for destruction of relator Wilbur Hannan’s dog. The order was based on the dog’s aggressive behavior, with the conclusion that it represented a danger to public safety. The dog had been involved in four unprovoked bites and a near-bite within a three-year time period, and relator failed to muzzle the dog or keep him properly enclosed.

The first bite occurred in August 1997, when the dog bit an individual walking by relator’s home. In September 1997, animal control informed relator that it was declaring the dog “potentially dangerous” under Minn.Stat. § 347.50, subd. 3, and a “dangerous animal” under Minneapolis, Minn., Code of Ordinances § 64.110(a). An administrative hearing officer upheld the declaration of the dog as potentially dangerous but overruled the declaration of the dog as a dangerous animal under the city ordinance because relator agreed to keep the dog muzzled when the dog was on the porch alone or off the property.

In June 1999, the dog bit relator’s neighbor while the neighbor was working in his backyard, adjacent to relator’s yard. The dog was then declared a “dangerous dog” under Minn.Stat. § 347.50, subd. 2, and relator was ordered to register the dog as a dangerous animal in Hennepin County and to restrain and muzzle the dog as required by law. See Minn.Stat. § 347.52 (2000). In July 1999, the dog lunged at a resident of relator’s home and nearly bit him. Relator admitted that the dog was leashed but not muzzled when this near-bite occurred.

In November 1999, the dog bit a woman who was walking near or in relator’s yard. The dog was not muzzled or leashed at the time. Animal control officers met with relator to explain the dangerous-dog regulations “to help him understand it better.” But in June 2000, the dog bit a visitor of a resident of relator’s home, who was standing on the front porch. Again, the dog was not muzzled or leashed.

After receiving notice of the order for destruction, relator appealed the order and the animal control division held an administrative hearing in June 2000. At the hearing, relator was allowed to testify and present several letters that friends and neighbors wrote on the dog’s behalf. The hearing officer affirmed the order to destroy the dog, and this decision comes before us for review.

ISSUE

Are the actions by the City of Minneapolis in regulating and ultimately ordering the destruction of a dangerous animal precluded by state statute?

ANALYSIS

Generally, a party seeking review of a quasi-judicial agency decision may only do so by filing a writ of certiora-ri. Larson v. New Richland Care Ctr., 538 N.W.2d 915, 918 (Minn.App.1995), review granted (Minn. Dec. 20, 1995) and order granting review vacated (Minn. Mar. 4,1997). On certiorari review, the court is limited to considering whether (a) the agency had jurisdiction; (b) “the proceedings were fair and regular”; and (c) “the [agency’s] decision was unreasonable, oppressive, arbitrary, fraudulent, without evi-dentiary support, or based on an incorrect theory of law.” Radke v. St. Louis County Bd., 558 N.W.2d 282, 284 (Minn.App.1997) (citation omitted). This court will uphold the decision if the agency provided “any legal and substantial basis” for its action. Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn.App.1996) (quotation omitted).

1. Conflict doctrine

Relator contends that the city ordinance conflicts with state law, but instead of identifying any express or implied terms that are irreconcilable, he cites to matters where the city has provided additional procedures for regulating dangerous animals. The general principles for determining whether an ordinance conflicts with state law are these: (a) Generally, conflict occurs when “the ordinance and the statute contain express or implied terms that are irreconcilable”; (b) more specifically, an ordinance conflicts with state law if it “permits what the statute forbids”; (c) similarly, there is conflict if the ordinance “forbids what the statute expressly permits”; and (d) “no conflict exists where the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute.” Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 352, 143 N.W.2d 813, 816-17 (1966) (citations omitted).

Relator first suggests that because the city ordinance allows for the destruction of animals that have bitten on two or more occasions without expressly exempting provoked attacks, the ordinance is invalid because it “permits what the statute forbids.” After comparing the ordinance with the state statute, it is evident that the local provision is merely additional and complementary to the statute, permitting local action that the state statute does not prohibit.

Both the ordinance and the statute provide for the classification and regulation of dangerous-animal behavior. The state scheme contains two procedures for allowing the destruction of a dangerous dog. First, if the owner “is convicted of a crime for which the dog was originally seized,” the court may order the dog’s destruction if the owner fails to reclaim the dog within seven days after confiscation. Minn.Stat. § 347.54, subds. 1, 2 (2000). The statute also allows for destruction if the owner is convicted of failing to abide by the requirements for registering and maintaining a dangerous dog and is also convicted of “a subsequent violation relating to the same dog.” Id., subd. 3 (2000).

The local ordinance also provides for destruction in the event the owner fails to abide by city requirements for registering and owning a dangerous dog, but it does not contain procedures allowing the owner to reclaim the dog. Minneapolis, Minn., Code of Ordinances § 64.120 (2000). And instead of approaching the subject matter through the owner’s criminal violations, the ordinance allows for destruction based primarily on the conduct of the dog. Id. As appellant suggests, some of the provisions of the local ordinance may be more severe. But as long as the state has not expressly precluded local regulation, there is no conflict when the state regulates a topic and the local government adds additional regulations that provide consequences greater than those already provided. See City of Duluth v. Evans, 158 Minn. 450, 452 197 N.W. 737, 737 (1924) (“Ordinances may be valid when they relate to the same matter as a state law, even though the punishment prescribed in both be not the same.” (citation omitted)). “[Statutes and ordinances on the same subject are intended to be coexistent.” State v. Dailey, 284 Minn. 212, 215, 169 N.W.2d 746, 748 (1969).

2. Preemption

Relator also insists that state law preempts the municipal ordinance. Local regulation will be preempted when the legislature has fully and completely covered the subject matter, clearly indicated that the subject matter is solely of state concern, or the subject matter itself is of such a nature that local regulation would have unreasonably adverse effects on the general populace. Mangold Midwest Co., 274 Minn, at 357-60, 143 N.W.2d at 820-21. Relator has not established preemption on any of these grounds.

First, the legislature has neither expressly nor impliedly indicated that the subject matter is solely a matter of state concern. In fact, state law expressly provides for local regulation. Minn.Stat. § 347.53 (2000) gives municipalities full authority to regulate “potentially dangerous dogs,” as long as the regulations are not breed-specific. See Minn.Stat. § 347.51, subd. 8 (2000). Moreover, Minn.Stat. § 609.227 (2000), which mandates destruction if the owner has committed a misdemeanor or gross misdemeanor for a crime involving the animal, specifies that the “section shall not preempt local ordinances with more restrictive provisions.” Further, we find no basis in relator’s contention that the authority given in section 609.227 is limited to the specific subject matter of destruction after conviction.

The expectation of local regulation is also implied. By providing only one express limitation to regulation' — that regulation not be breed-specific — the legislature has implicitly given municipalities full authority to regulate dangerous dogs. See Maytag Co. v. Commissioner of Taxation, 218 Minn. 460, 463-64, 17 N.W.2d 37, 40 (1944) (“[W]here the statute designates an exception, proviso, saving clause, or a negative, * * * the exclusion of one thing includes all others.” (citations omitted)).

Finally, the regulation and control of dangerous dogs is a wholly legitimate issue for municipal interest because it primarily affects the local populace. American Dog Owners Ass’n, Inc., v. City of Minneapolis, 453 N.W.2d 69, 72 (Minn.App.1990) (“The City [of Minneapolis] has a high interest in taking appropriate measures for animal control.”); see also State v. Westrum, 380 N.W.2d 187, 190 (Minn.App.1986) (refusing to preempt local regulation of food vendors because it was “an area in which local governments are particularly interested because local fairs primarily affect the local populace”).

3. Due process

In addition, relator questions the authority of the animal control division to issue the order for destruction and the constitutionality of the procedures afforded by the ordinance before destruction is to occur. But relator provides no evidence indicating that the division does not have the authority to issue the order for destruction. Also, the due-process topic as briefed is entirely worded in issues that this court has already decided. See American Dog Owners Ass’n, 453 N.W.2d at 72 (reversing the trial court’s determination that Minneapolis Ordinance section 64.120(b)(1) — (2) was unconstitutional, concluding that procedures afforded by the ordinance comported with due-process requirements).

Relator contends that his due process rights were violated because the hearing officer disregarded his “uncontradicted testimony” that his dog’s conduct was provoked. But relator does not dispute the evidence in the record that strongly suggests several, if not all, of the dog’s attacks were unprovoked, which justifies the hearing officer’s findings. Relator further contends that in weighing the evidence, the administrative court impermissibly adopted written reports over personal testimony, but relator cites to no authority, and this court has found none, to demonstrate that the hearing officer could not find the written reports to be just as reliable as live testimony.

DECISION

Because we conclude that the municipal ordinance providing for the destruction of dangerous animals is not in conflict with or preempted by state law, we affirm the hearing officer’s decision that the order for destruction was valid and duly authorized. We also find no merit in relator’s contention that his due-process rights were violated; the record does not indicate that the agency’s decision was arbitrary, unreasonable, or without evidentiary support.

Affirmed.

      . The statute defines a "Potentially dangerous dog” as any dog that
      (1) when unprovoked, inflicts bites on a human or domestic animal on public or private property;
      (2) when unprovoked, chases or approaches a person, including a person on a bicycle, upon the streets, sidewalks, or any public or private property, other than the dog owner’s property, in an apparent attitude of attack; or

        (3) has a known propensity, tendency, or disposition to attack unprovoked, causing injury or otherwise threatening the safety of humans or domestic animals.
      Minn.Stat. § 347.50, subd. 3 (2000).

      . The ordinance defines a “dangerous animal” as
      (1) Any animal which attacks a human being or domestic animal without provocation; or
      (2) Any animal with a known propensity, tendency, or disposition to attack unprovoked, to cause injury to or to otherwise endanger the safety of humans or other domestic animals; or
      (3) Any animal declared by the animal control officer to be a dangerous animal, as defined herein, or any animal determined to be a dangerous animal under the authority of section 64.120 of the Code.
      Minneapolis, Minn., Code of Ordinances § 64.110(a) (2000).

      . A "dangerous dog” is defined as any dog that has
      (1) without provocation, inflicted substantial bodily harm on a human being on public or private property;
      (2) killed a domestic animal without provocation while off the owner’s property; or
      (3) been found to be potentially dangerous, and after the owner has notice that the dog is potentially dangerous, the dog aggressively bites, attacks, or endangers the safety of humans or domestic animals.
      Minn.Stat. § 347.50, subd. 2 (2000).

      .The requirements for owning a dangerous dog include keeping the dog properly enclosed and muzzled:
      An owner of a dangerous dog shall keep the dangerous dog, while on the owner's property, in a proper enclosure. If the dog is outside the proper enclosure, the dog must be muzzled and restrained by a substantial chain or leash and under the physical restraint of a responsible person. The muzzle must be made in a manner that will prevent the dog from biting any person or animal but that will not cause injury to the dog or interfere with its vision or respiration.
      Minn.Stat. § 347.52 (2000).

      . Section 64.120(a) grants the agency the authority to order the destruction or other disposition of the animal if it:
      (1) Has bitten one or more persons on two
      (2)or more occasions, or
      (2) Has caused serious bodily injury or disfigurement to any person, or
      (3) Has engaged in an attack on or exhibited unusually aggressive behavior towards any person or other animal under circumstances which would indicate danger to safety of the person or animal, or
      (4) Is prohibited by or found to be in violation of section 64.110 of this Code, or
      (5) Is prohibited by 74.50 of this Code. Minneapolis, Minn., Code of Ordinances § 64.120(a) (2000).

      . Section 347.53 (Potentially Dangerous Dogs) provides:
      Any statutory or home rule charter city, or any county, may regulate potentially dangerous dogs. Except as provided in section 347.51, subdivision 8, nothing in sections 347.50 to 347.54 limits any restrictions the local jurisdictions may place on owners of potentially dangerous dogs.
      Minn.Stat. § 347.53 (2000).

      . Minn.Stat. § 347.51, subd. 8 (2000) states:
      A statutory or home rule charter city, or a county, may not adopt an ordinance regulating dangerous or potentially dangerous dogs based solely on the specific breed of the dog. Ordinances inconsistent with this subdivision are void.

      . Although the submission of written reports instead of personal testimony could be perceived as a violation of relator's constitutional right to confront the witnesses against him, he did not raise this issue below or in his appellate brief. Consequently, we decline to address the issue. See State, Dep’t of Labor & Indus, by Special Comp. Fund v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach issue in absence of adequate briefing).