author: GORDON W. SHUMAKER, Judge. DIETZEN, Judge

text:
    Richard ANTONE, Appellant, v. Israel MIRVISS, Respondent.
    No. A04-1367.
    Court of Appeals of Minnesota.
    April 12, 2005.

      Jeffrey A. Olson, Jeffrey A. Olson, PLLC, Edina, MN, for appellant.
    Edward F. Rooney, Minneapolis, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; DIETZEN, Judge; and CRIPPEN, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant-client appeals the district court’s dismissal of his legal malpractice action against respondent-attorney, contending that the district court erred when it held that the statute of limitations began to run when appellant and his former spouse got married in reliance on an ante-nuptial agreement respondent prepared and that appellant’s action was commenced after the limitations period expired.

FACTS

This is a legal malpractice action in which appellant Richard Antone claims he sustained damages because his attorney, respondent Israel Mirviss, improperly drafted an antenuptial agreement that Antone and his former spouse entered. The district court ruled that the statute of limitations had expired before Antone commenced suit and granted Mirviss’s motion to dismiss the action. Antone contends the district court erred as a matter of law.

As Antone prepared to marry for a second time, he consulted attorney Mirviss about how he might prevent his spouse from obtaining certain of his assets if he died or if the parties dissolved their marriage. Antone alleges that Mirviss advised that an antenuptial agreement would be the proper protective instrument and that Mirviss promised to draft an agreement “so that, in the event of marriage dissolution, Antone’s fiancée would not benefit from any appreciation that occurred relative to Antone’s premarital assets/properties.”

Mirviss drafted an antenuptial agreement that both parties signed after consulting with their respective attorneys. The agreement disclosed the parties’ assets and provided for a limitation on spousal maintenance in the event of a marriage dissolution, but it was silent as to property rights upon dissolution.

The parties married on December 21, 1986, one day after they signed the ante-nuptial agreement. Antone commenced a marriage dissolution proceeding nearly 12 years later, on September 25, 1998. He alleges that during the pendency of the dissolution he discovered for the first time that the antenuptial agreement did not address the division of the parties’ assets and did not prevent his spouse from obtaining assets that Mirviss allegedly promised to protect.

On November 9, 2000, the district court entered judgment of dissolution, ruling that the antenuptial agreement did not affect the court’s authority to order a property division that would include assets Antone alleged were to have been covered by the agreement. Nevertheless, the district court awarded all of the appreciated value of such assets to Antone. Ultimately, the supreme court remanded the issue to the district court, stating: “We hold as a matter of law that a portion of the market-related appreciation during the marriage is marital property.” Antone v. Antone, 645 N.W.2d 96, 103 (Minn.2002). The supreme court’s directive to the district court on remand was to determine the portion of the appreciated value Antone’s former spouse was entitled to receive. The district court entered its amended judgment awarding a portion of that value on January 3, 2003.

Premised on theories of negligence, breach of fiduciary duty, and breach of contract, Antone started this action against Mirviss on September 11, 2003. Mirviss moved to dismiss the suit, arguing that the statute of limitations had expired before September 11, 2003. The district court agreed; ruled that the statute began to run on the date the parties married, about 16 years before Antone started the lawsuit; and granted the motion to dismiss. Antone appealed.

ISSUE

Appellant alleges that he retained respondent attorney to prepare an antenup-tial agreement to prevent his spouse from obtaining certain assets in the event of a marriage dissolution. He alleges that respondent failed to prepare a proper agreement and that his spouse obtained a portion of such property in an award 16 years after the date of the marriage. Appellant started suit after the award.

Did the district court err by ruling that the statute of limitations began to run on the date of the marriage, and, thus, the legal malpractice action is time-barred?

ANALYSIS

Standard of Review

So that we can apply the correct standard of review, we first address the procedural posture of the case. Citing the statute of limitations but not citing any rule of civil procedure, Mirviss moved to dismiss the action. Antone’s response treated the motion as one for summary judgment under Minn. R. Civ. P. 56. The district court based its order dismissing the action on Minn. R. Civ. P. 12.02(e), failure to state a claim on which relief can be granted.

Minn. R. Civ. P. 12.02(a)-(f) provides that if, on a motion based on a 12.02(e) defense, “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.... ” Both parties submitted various affidavits and other “matters outside the pleading[s],” and the district court did not exclude any of the exhibits. Therefore, the district court’s dismissal was a summary judgment in favor of Mirviss under Minn. R. Civ. P. 56. Accordingly, the correct standard of review is that applicable to a summary judgment. In an appeal from summary judgment, the appellate court determines whether there is a genuine issue of material fact for trial and whether the district court erred in its interpretation or application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Statute of Limitations Trigger

The sole question on appeal is this: “What event triggers the legal malpractice statute of limitations when the allegation is that the attorney improperly prepared an antenuptial agreement?” As to this question, the parties raise no genuine issue of material fact. When material facts are not in dispute, the question of when a statute of limitations begins to run is one of law, which this court reviews de novo. Ryan v. ITT Life Ins. Corp., 450 N.W.2d 126, 128 (Minn.1990).

Under Minn.Stat. § 541.05, subd. (1) (1998), the period of limitation within which a legal malpractice lawsuit must be started is six years. However, the statute is silent as to when that period begins to run. Here, possible triggering dates are the respective dates of the execution of the antenuptial agreement, the marriage, the commencement of the dissolution, the original district court judgment, the appellate court decisions, or the entry of the district court’s amended judgment. The parties agree (1) that the statute of limitations begins to run when the legal malpractice cause of action accrues, and (2) that the cause of action is deemed to have accrued when it is able to survive a motion to dismiss for failure to state a claim on which relief may be granted. Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999). The parties also agree that the statute begins to run “after damage occurs, even though the ultimate damage is unknown or unpredictable.” Sabes & Richman, Inc. v. Muenzer, 431 N.W.2d 916, 918 (Minn.App.1988).

Mirviss argues that Antone suffered “some damage” when he and his spouse signed the antenuptial agreement and married because Antone then lost the right to prevent his spouse from claiming and obtaining an interest in the assets in question if the parties eventually dissolved their marriage.

To survive a motion to dismiss a legal malpractice action, a plaintiff must allege sufficient facts to show “(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiffs damages; and (4) that but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.” Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281 (Minn.1983). Here, Antone’s lawsuit would survive a motion to dismiss if he alleged that, but for Mirviss’s negligence and breach of contract, he would not have lost any portion of the appreciated value of the assets in question.

The “damages” element in the context of this action is the loss of some appreciated value. Antone’s claim accrued at the point it was “possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739-40 (Minn.2000) (quoting N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)) (emphasis added). Stated conversely, if it was not “possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded,” the claim will be dismissed. Id. The relief Antone demands in this action is money damages for his loss of appreciated value in the marriage dissolution. Thus, Mirviss’s argument that Antone sustained “some damage” in the form of the loss of a right is tenable only if that loss of a right was ascertainable as money damages. It was not. Had Antone sued Mirviss at any time before it would have been possible to grant money damages consistent with evidence supporting Antone’s theories of negligence or breach of contract, his lawsuit would have been dismissed for failure to state a claim upon which the relief he sought could have been granted.

At the time Antone and his former spouse solemnized their marriage, partly in reliance on the antenuptial agreement, damages for the allegedly faulty agreement were both contingent and unascer-tainable. They were contingent, by the terms of the very agreement now challenged, on an eventual marriage dissolution. They were contingent on the occurrence of an appreciation in the value of the assets Antone sought to protect. And they were contingent on the court in the dissolution action actually awarding at least some of the appreciation to Antone’s former spouse. The money damages that constitute the relief Antone demanded in his malpractice action remained solely and entirely potential until the district court entered its amended judgment. Mirviss has offered no authority for the proposition that an action for money damages can survive a motion to< dismiss when, by any conceivable evidence that might be produced, only the potential for an actual loss of money has occurred.

The district court stated that: “In Minnesota, the statute of limitations on a legal malpractice claim begins to run when action is taken based on legal advice.” The court cited Herrmann for that proposition. But that is not the holding in Herrmann and is not the rule in Minnesota. Herrmann, 590 N.W.2d at 644.

Herrmann owned a construction company. Herrmann, 590 N.W.2d at 642. With the advice of his attorneys, he created a pension plan and trust for his employees. Id. The trust was of a type that came within an Internal Revenue Code prohibition on transactions with certain disqualified persons. Id. The code penalty for engaging in such transactions was immediate liability for federal excise taxes and interest. Id.

Herrmann’s attorneys later drafted documents to create a partnership between the trust and an unrelated corporation. Id. The partnership engaged in business with Herrmann’s company. Id. Some of the transactions were prohibited under the code, and Hermann, as employer, became liable for excise taxes and interest. Id.

When Herrmann discovered the prohibition, he spent money to try to address the problem but, when the Internal Revenue Services audited him three years later, it assessed liability for the prohibited transactions. Id. at 642-43.

Herrmann sued his attorneys for damages for legal malpractice. Id. He started the suit 10½ years after the attorneys helped establish the trust; 9.years after the partnership involving the trust engaged in a prohibited transaction; 3 years after Herrmann discovered the prohibition; and 6 months after the Internal Revenue Service determined the amount of Herrmann’s liability. Id. at 642-43 In the malpractice action, the question was: “When did the statute of limitations begin to run?” Id. at 643.

Herrmann claimed that the statute began to run three years before the lawsuit when he discovered the prohibition and spent money to try to correct the transgression. Id. Because this argument was posited on a “discovery” rule, which had previously been rejected by the supreme court, the court held that the statute began to run on the date of the first prohibited transaction. Id. at 642. The significance of that date was that it was the point at which Herrmann “became immediately liable for the excise tax and the interest required” by the Internal Revenue Code. Id. at 644.

Herrmann is instructive for both what it holds and what it does not hold. First, it is clear that in Minnesota we do not apply a discovery rule in determining legal malpractice statute of limitations questions. Thus, Antone’s allegation that he did not discover Mirviss’s malpractice until the pendency of the dissolution is irrelevant to the issue before us.

It is also apparent that the statute of limitations does not automatically begin to run when the faulty legal advice is given. The alleged malpractice in Herrmann was an omission, that is, advice that attorneys in the exercise of reasonable care should have given. That omission first occurred when the attorneys helped create the trust but did not advise as to the tax code restriction and the monetary consequences of violating that restriction. Id. at 642. The supreme court did not hold that this arguably negligent omission triggered the statute of limitations. Id. at 644.

The next omission occurred when the attorneys drafted the partnership documents but failed to tell Herrmann that if the partnership did business with Herr-mann’s company it would violate the tax code restriction and Herrmann would become liable for penalties. Id. at 642. The supreme court did not hold that this failure triggered the statute. Id. at 644.

Despite the attorneys’ negligent omissions and despite the potential for tax code penalties on the respective dates of the creation of the trust and the partnership, Herrmann had no damages at those times. The monetary losses he sought to recover in the malpractice action were only potential and were contingent on the engagement in a prohibited transaction. It was only on the occurrence of the first prohibited transaction that Herrmann’s damages were transformed from contingent, potential losses to actual losses for which he claimed to be entitled to relief. Id. at 642

A fair reading of Herrmann requires the conclusion that, when money damages allegedly caused by attorney negligence or breach of contract are the relief sought in a legal malpractice action, “some” ascertainable, fixed loss of money must occur before the statute of limitations will begin to run. It is not sufficient that damages are contingent, potential, or even probable. Because Herrmann formed the trust partnership for the purpose of business transactions between the partnership and his company, tax liabilities were certainly potential at the moment the partnership came into existence. But, as the supreme court held, the statute ran only from the time Herrmann incurred an actual liability for the payment of money, irrespective of the irrefutable fact that the malpractice that occasioned the loss occurred 9½ years earlier. Id. at 643^4.

Applying the Herrmann rule here, even though malpractice allegedly oc-eurred when Antone and his spouse got married in partial reliance on the allegedly faulty antenuptial agreement, there was no actionable claim at that time because Antone had not yet sustained the money damages that provide the object of his legal malpractice lawsuit. Until the contingencies of the appreciation in value, the dissolution, and the award of a portion of the appreciated value occurred, Antone had no actionable claim against Mirviss and any attempt to assert a claim before the satisfaction of all three contingences would have resulted in a dismissal. Antone’s loss was only potential.

The dissent emphasizes that uncertainty as to the amount of damages is not fatal to a legal-malpractice action. We agree and have not said otherwise. But, at the time the marriage was entered, there were no damages at all. The dissent has identified a likely wrong but has not shown how that wrong translates into “some” damages. By its very terms, the antenuptial agreement would not operate until a marriage dissolution. Thus, damages could not occur until the faulty instrument actually became operative, even though it was legally binding upon the entry of the marriage.

The dissent also analogizes this case to Herrmann, stating that the entry into the faulty antenuptial agreement is akin to the first prohibited transaction in that case. But the omissions in Herrmann occurred before the first prohibited transaction. That event was selected because it was the first time the plaintiff actually lost money.

The entire point of the instant lawsuit is that Antone lost money. The case is solely about money damages. There were none until the antenuptial agreement became operative and the court made a final award of property Antone had sought to protect. It is impossible to imagine what damages in any amount Antone would have been able to prove had he started his lawsuit the day after his marriage. He could have shown perhaps that Mirviss had been negligent, but his claim was for money damages. He could not establish even “some” money damages at that point. The jury could not have awarded any amount. His claim, at that time, would have failed for want of proof of an essential element.

Although not binding, we find Pope v. Zanetis, 2002 WL 425050 (S.D.Ind.), instructive and persuasive. Before Darla and Harold Pope married, attorney Zane-tis drafted an antenuptial agreement that both signed. Id. at *1. After the parties’ divorce, Darla Pope sued Zanetis for damages for legal malpractice in the preparation of the antenuptial agreement, which allegedly allowed her less property than she would have received without the agreement. Id. at *3.

Zanetis asserted the statute of limitations as a defense and moved for summary judgment, contending that the action was started more than two years after he prepared the antenuptial agreement and that the two-year statute of limitations barred the action. Id. at *1. Pope argued that she was not injured by Zanetis’ negligence until the divorce became final. Id.

Denying the motion for summary judgment, the court held that a cause of action accrues when all elements of the claim are present. Id. at *3. One of those essential elements is damages. Thus, “[t]he cause of action thus does not accrue unless and until the plaintiff suffers actual loss, such that damages could be shown.” Id. Holding that there must exist a legally cognizable injury before a cause of action can accrue against a wrongdoer, the court held:

... defendants have not identified any ascertainable injury that plaintiff suffered from Zanetis’ alleged malpractice until the state court issued its divorce decree and gave its final approval to the Popes’ property division. If plaintiff had filed this malpractice suit before then, it would have been dismissed for lack of an injury.

Id. at *6.

The Minnesota rule is in accord. The statute of limitations here began to run upon the date of the entry of the district court’s amended judgment.

DECISION

Because appellant suffered no damages until the district court awarded to his former spouse property that allegedly was to be reserved to him through the antenuptial agreement respondent prepared, the statute of limitations did not begin to run until the time of the award, and appellant’s lawsuit three years later was timely.

Reversed and remanded.

DIETZEN, Judge

(dissenting).

I respectfully dissent. Because Antone suffered “some damage” at the time of the marriage, and not at the time of the dissolution 12 years later, I would affirm the district court’s grant of summary judgment dismissing Antone’s stale malpractice claim.

Before their wedding, Antone and his former spouse sought legal advice regarding an antenuptial agreement. The first draft of the agreement included provisions on property division that protected Antone’s non-marital property from any claims made by his former spouse. When Antone’s former spouse refused to sign the agreement, the property-division portion was deleted and a spousal maintenance provision was inserted. Antone alleges that Mirviss did not draft the antenuptial agreement in accordance with his wish to protect his non-marital property from the reach of his former spouse. But Antone had notice at the time of the marriage that his non-marital property was deleted from the agreement and, therefore, was unprotected. His non-marital property thus became a part of the marital estate and was subject to the marital claims of his former spouse.

I agree with the majority that, in the context of when the statute of limitations accrues, “some damage” occurs when a legal malpractice claim can survive a motion to dismiss for failure to state a claim upon which relief can be granted. But I do not agree with the majority that “some damage” must be in the form of ascertainable money damages for the statute of limitations to accrue. See generally Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (“[T]he running of the statute does not depend on the ability to ascertain the exact amount of damages”) (emphasis added); cf. Olson v. Aretz, 346 N.W.2d 178, 183 (Minn.App.1984) (“Uncertainty as to the fact of whether any damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not.”) (quotation omitted), review denied (Minn. Oct. 30, 1984).

The Herrmann Court concluded that the statute of limitations accrues upon the occurrence of the “first prohibited transaction.” Herrmann, 590 N.W.2d at 643-44. Upon marriage, the antenuptial agreement becomes operative to resolve issues of property division and spousal maintenance if the marriage is dissolved. Marriage is, therefore, the defining event and is akin to a “first prohibited transaction,” as enunciated in Hermann. At the time of his marriage Antone lost the legal right to claim ownership in his non-marital assets unfettered by his former spouse’s inchoate interests. See generally Minn.Stat. § 507.02 (1986) (requiring spouse to obtain signature of other spouse to convey marital property); Minn.Stat. § 519.07 (1986) (detailing procedures to extinguish spouse’s inchoate interest in marital property only if spouse is insane or if the other spouse has been deserted or is otherwise entitled to a divorce). Antone’s loss of an exclusive interest in his assets was a damage that proximately flowed from the tort of malpractice even if the exact amount was unascertainable at the time of the marriage.

The majority opinion has two troubling implications. First, parties desiring an antenuptial agreement will encounter practitioners reluctant to draft such agreements because they will be held liable for legal advice long after the alleged malpractice has occurred. Second, because “some damage” does not occur until marital property is divided in a dissolution proceeding, the majority opinion creates an open-ended extension of time for a legal malpractice claim. This result is contrary to the general intent of statutes of limitation, which is to bar stale claims and to provide certainty to professional affairs, not to hold practitioners potentially liable for malpractice for many years after the tort allegedly occurred and to a standard of care that has long ago been forgotten.

I would affirm the district court’s grant of summary judgment and conclude that Antone’s legal malpractice lawsuit falls outside of the six-year statute of limitations.


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    In re the Marriage of Darlene GERBER, petitioner, Respondent, v. John Truman GERBER, Appellant, and County of Anoka, intervenor, Respondent.
    No. A04-1538.
    Court of Appeals of Minnesota.
    April 12, 2005.

      Darlene Gerber, k/n/a Darlene Nelson, Anoka, MN, pro se respondent.
    Robert A. Howard, Hicken, Scott & Howard, P.A., Anoka, MN, for appellant.
    Robert M.A. Johnson, Anoka County Attorney, Kay M. Gavinski, Assistant Anoka County Attorney, Anoka County Government Center, Anóka, MN, for respondent Anoka County.
    Considered and decided by WILLIS, Presiding Judge; STONEBURNER, Judge; and PORITSKY, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellant John Truman Gerber challenges the child-support magistrate’s decision that Anoka County may continue to use wage withholding to collect child-support arrearages under an expired judgment. Because wage withholding is a remedy dependent on a valid judgment of the court, we conclude that it is a judicial remedy, and Minn.Stat. § 541.04 (2004), bars application of wage withholding to an expired judgment.

FACTS

A dissolution judgment entered February 12, 1982, dissolved the marriage of appellant and respondent Darlene Gerber. The judgment required appellant to pay child support in the amount of $900 per month for support of the parties’ five children and further required appellant’s employer to withhold child support from appellant’s wages and forward the amount directly to respondent Anoka County Social Services, which in turn, was required to forward the child support to respondent Darlene Gerber.

The parties’ youngest child was emancipated in 1993. By judgment entered September 13, 1993, Darlene Gerber was awarded $94,850 for unpaid child support. This judgment was never renewed. In May 2004, appellant moved to terminate wage withholding and for reimbursement for amounts collected after September 13, 2003, on the ground that the September 13, 1993 judgment expired and was unenforceable after September 13, 2003. Respondent Anoka County intervened and opposed the motion to terminate wage withholding. A child-support magistrate heard the motion and found that appellant’s ongoing child-support obligation terminated when the youngest child was emancipated on June 20, 1993. The CSM also found that respondent obtained a judgment for child-support arrearages on September 13, 1993, which expired on September 13, 2003, and was not renewed. But the CSM concluded that wage withholding “is an administrative remedy, not a judicial remedy, that remains in place regardless of the date of the entry of the Judgment and Decree.” This appeal followed.

ISSUE

Does the remedy of wage withholding to collect child support or child-support ar-rearages survive the expiration of the judgment establishing the support obligation or arrearages?

ANALYSIS

I. Standard of review

On appeal from a child-support magistrate’s ruling, the standard of review is the same as it would be if the decision had been made by a district court. Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn.App.2002). The construction and applicability of a statute of limitation is a question of law, which we review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

II. Wage withholding is a judicial remedy

Minn.Stat. § 518.6111, subd. 3 (2004), provides that “[ejvery support order must address income withholding. Whenever a support order is initially entered or modified, the full amount of the support order must be subject to income withholding from the income of the obli-gor.” At the time the judgment in this case was entered, a wage-withholding provision was not mandatory but was available on request of the obligee or the public authority. Minn.Stat. § 518.611, subd. 1 (Supp.1981). The parties do not dispute that wage withholding can be used to collect child-support arrearages, and Minn. Stat. § 518.6195(a) (2004), explicitly provides that remedies available for collection of child support also apply to cases in which the child or children are emancipated and the obligor has an arrearage as of the date of emancipation.

Respondent argues both that Minn.Stat. § 518.6195, provides authority for the collection of arrearages when the judgment has expired and that because wage withholding is an administrative remedy, it can continue even when the judgment for ar-rearages has expired. We find respondent’s first argument to be without merit. Nothing in Minn.Stat. § 518.6195, negates application of the statute of limitations to remedies available for collection of child support or child-support arrearages. This court is prohibited from adding words to a statute and cannot supply that which the legislature purposely omits or inadvertently overlooks. Goplen v. Olmsted County Support & Recovery Unit, 610 N.W.2d 686, 689 (Minn.App.2000). Without language authorizing collection on an expired judgment, Minn.Stat. § 518.6195, does not authorize application of remedies for child-support collection to an expired judgment for child-support arrearages.

Respondent’s second argument, that the continued collection of arrearages is permissible following the expiration of a judgment because wage withholding is an administrative remedy, is a matter of first impression for this court. The CSM concluded that even though the current automatic wage-withholding laws did not apply at the time of the original judgment, wage withholding is an administrative remedy available to collect child-support arrearag-es. The CSM relied on Bednarek v. Bednarek, 430 N.W.2d 9, 12 (Minn.App.1988), a case involving interception of an obligor’s tax refund under the revenue recapture act. In Bednarek, this court held that “the ten-year statute of limitations barring court actions on judgments does not apply to bar the administrative remedy of intercepting an obligor’s tax refund to satisfy [child-support] arrearages previously validly established.” 430 N.W.2d at 12. The court found that

[b]y its own terms, the statute of limitations here applies only to “actions.” An action is “any proceeding in any court of this state.” Nonjudicial relief is thus not necessarily barred by operation of the statute of limitations.

Id. (citations omitted).

Under the act, as codified in Minn.Stat. § 270A.01—.12 (2004), a state agency, defined to include a public agency responsible for child support enforcement, may collect a debt through setoff against a refund due to a debtor by submitting information required by the statute to the commissioner of revenue. See Minn.Stat. § 270A.07, subd. 1. “Debt” is defined in the statute as “a legal obligation of a natural person to pay a fixed and certain amount of money, which equals or exceeds $25 and which is due and payable to a claimant agency.” Minn.Stat. § 270A.03, subd. 5. “A debt may arise under a contractual or statutory obligation, a court order, or other legal obligation, but need not have been reduced to judgment.” Id.

Because Bednarek involves revenue recapture, it is not controlling in this case. The necessity of a court order to authorize the remedy of wage withholding to collect child support and child-support arrearages distinguishes wage withholding from revenue recapture permitted under MinmStat. 270A.01—.12. In Holmberg v. Holmberg, 588 N.W.2d 720, 724 (Minn.1999), holding that the legislatively-created, administrative child-support process violated the separation of powers provision of the Minnesota constitution, the supreme court noted that “dissolution remedies, including remedies in child support decisions, rely on the district court’s inherent equitable powers.” We conclude that wage withholding is a judicial remedy and not an administrative remedy.

III. Statute of limitations bars recovery of child support under an expired judgment

Minn.Stat. § 541.04 (2004), provides that “[n]o action shall be maintained upon a judgment or decree of a court of the United States, or of any state or territory thereof, unless begun within ten years after the entry of such judgment.” Minn.Stat. § 548.09, subd. 1 (2004), which requires entry of every judgment compelling the payment of money, specifically provides that a judgment survives for ten years after its entry and makes clear that child-support judgments may be renewed under section Minn.Stat. § 548.091 (2004). Section 548.091, subd. 3b provides:

Child support judgments may be renewed by service of notice upon the debtor. Service must be by first class mail at the last known address of the debtor, with service deemed complete upon mailing in the manner designated, or in the manner provided for the service of civil process. Upon the filing of the notice and proof of service, the court administrator shall administratively renew the judgment for child support without any additional filing fee in the same court file as the original child support judgment. The judgment must be renewed in an amount equal to the unpaid principle plus the accrued unpaid interest. Child support judgments may be renewed multiple times until paid.

This simple renewal process for child-support judgments indicates that the legislature is well aware of the necessity of renewing child-support judgments to facilitate collection. The supreme court has recognized that the statute of limitations on judgments applies to recovery of child-support payments and has held that

divorce decrees calling for support payments in the future are entitled to enforcement by the party to whom the support was awarded, provided that each installment of support payments shall be treated independently and separately and recovery allowed only for those payments which accrue within ten years from the date of the commencement of the action.

Dent v. Casaga, 296 Minn. 292, 297, 208 N.W.2d 734, 737 (1973) (emphasis added); see also Dolly v. Nichols, 386 N.W.2d 261, 263 (Minn.App.1986) (stating that divorce judgments governed by ten-year statute of limitations), revieiv denied (Minn. June 30, 1986). Because the statute of limitations prevents judicial remedies from being used to collect expired child support and child-support arrearage judgments, we hold that the judicial remedy of wage withholding cannot be applied to collect child support under a judgment for child-support arrear-ages that has expired.

DECISION

The CSM erred by concluding that the county can, through wage withholding, continue collect child-support payments from appellant after the judgment for child support expired on September 13, 2003.

Reversed.

      . Appellant also moved to stop the accrual of interest on the child-support debt, and the child-support magistrate granted this motion.


author: WRIGHT, Judge. MINGE, Judge,

text:
    BERNE AREA ALLIANCE FOR QUALITY LIVING, et al., Appellants, v. DODGE COUNTY BOARD OF COMMISSIONERS, et al., Respondents.
    No. A04-1287.
    Court of Appeals of Minnesota.
    April 12, 2005.

      James Pierce Peters, Peters & Peters, P.L.C., Alexandria, MN, for appellants.
    Jay Thomas Squires, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondents.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

In this appeal of the district court’s entry of summary judgment, appellants Berne Area Alliance for Quality Living, et al. (collectively BAA), challenge the district court’s determination that respondents Dodge County and its Board of Commissioners did not act arbitrarily and capriciously in concluding that an environmental impact statement (EIS) for the construction of a hog confinement facility was not required. The county argues that Minn.Stat. § 116D.04, subd. 2a(d) (2004), exempts the proposed facility from environmental review. BAA counters that because that statute was enacted after the county’s EIS decision, it cannot be applied here, and that, even if the statute does apply, it is not satisfied. BAA also contends that the Minnesota Pollution Control Agency (PCA), not the county, is the responsible governmental unit for permit approval. We affirm in part and reverse in part.

FACTS

Mark Finstuen, who had a feedlot for 35 steers, applied for a conditional use permit (CUP) and other permits that would allow him to build and operate a hog feedlot that, while having a capacity of significantly more than 1,000 animal units (AUs), would be used to house only 995 AUs, including the 35 steers. His proposal included a plan for applying the manure produced by the feedlot, in lieu of fertilizer, to surrounding land in such a manner that there would be no net increase in the amount of nitrates applied to the land. After considering Finstuen’s application, his Environmental Assessment Worksheet (EAW), and other environmentally related information, the county made a negative declaration regarding the need for an EIS for the proposed project and granted the application. BAA sued the county, seeking a declaratory judgment that an EIS was required. Both sides moved for summary judgment. Although it did not initially question the county’s authority to determine the need for an EIS, BAA argued in support of its summary judgment motion that the responsible governmental unit (RGU) for decisions regarding the EIS and issuance of the permits was the PCA, rather than the county.

The district court denied BAA’s motion for summary judgment and granted the county’s motion. The district court ruled that (a) the capacity of the proposed feedlot exceeds 1,000 AUs; (b) because the capacity of the proposed feedlot exceeds 1,000 AUs, Minn.Stat. § 116D.04, subd. 2a(d) (2004), which exempts from environmental review proposed feedlots having a capacity of fewer than 1,000 AUs, did not apply; (c) the county was the proper RGU to issue Finstuen’s permits; and (d) the county’s negative declaration regarding the need for an EIS was not arbitrary or capricious. BAA appealed, and the county filed a notice of review, arguing that the exemption in Minn.Stat. § 116D.04, subd. 2a(d), applies here.

ISSUES

I. Is a proposed feedlot that is capable of holding more than 1,000 animal units but will actually hold fewer than 1,000 animal units exempt from environmental review under Minn.Stat. § 116D.04, subd. 2a(d)(1) (2004)?

II. Did the county have the authority to grant permits for construction and operation of the proposed feedlot?

ANALYSIS

When reviewing a summary judgment affirming a negative declaration regarding the need for an EIS, we focus “on the proceedings before the decision-making body ... not the findings of the [district] court.” Iron Rangers for Responsible Ridge Action v. Iron Range Res., 531 N.W.2d 874, 879 (Minn.App.1995), review denied (Minn. July 28, 1995). Our review of an agency’s consideration of environmental factors is limited, and we will intervene only when the record suggests “the agency has not taken a ‘hard look’ at the salient problems” and its decision lacks “articulated standards and reflective findings.” White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn.App.1997) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977)), review denied (Minn. Oct. 31, 1997); see also Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 465 (Minn.2002) (stating that appellate court has limited review of agency’s decision).

I.

“Where there is potential for significant environmental effects resulting from any major governmental action, the action shall be preceded by a detailed [EIS] prepared by the [RGU].” Minn.Stat. § 116D.04, subd. 2a (2004). After BAA initiated this action, the legislature amended the environmental-review statute to exempt from review feedlots with a capacity of fewer than 1,000 AUs. 2003 Minn. Laws ch. 128, art. 3, § 40. The parties dispute whether the amended statute applies here and, if it does, whether the exemption applies.

A.

We begin with an analysis of the applicability of the amended statute. The United States Supreme Court has stated that “[w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive” and is, therefore, permitted. Landgraf v. USI Film Prods., 511 U.S. 244, 273-74, 114 S.Ct. 1483, 1501, 128 L.Ed.2d 229 (1994). Under Minn.Stat. § 116D.04, subd. 10 (2004), adverse EIS determinations may be challenged in a declaratory judgment action, as happened here. Because the amendment to Minn.Stat. § 116D.04, subd. 2a, precludes environmental review of certain proposed feedlots, the amendment “affected” the availability of the relief BAA sought (a declaratory judgment requiring environmental review in the form of an EIS). Thus, applying the new statute is not improperly retroactive, and the amended statute applies here.

B.

Having concluded that the amended statute is applicable, we next consider whether the proposed feedlot is exempt from environmental review. To be exempt from environmental review under the amended statute, a proposed feedlot must, among other things, have “a capacity of less than 1,000 [AUs.]” Minn.Stat. § 116D.04, subd. 2a(d)(1)(i). The crux of the parties’ disagreement is whether “capacity” is to be measured physically or legally. BAA argues that “capacity” is measured by the number of AUs that the proposed project can actually accommodate (physical capacity). The county counters that “capacity” is measured by the number of AUs that Finstuen may, under the relevant permits, house in the project (legal capacity).

The relevant statutes and rules do not define “capacity.” To support its argument that “capacity” means legal capacity, the county cites Finstuen’s “Minnesota Pollution Control Agency Permit Application for an Animal Feedlot or Manure Storage Area.” While the application refers to “maximum capacity,” it does not define “capacity.” Also, reading “capacity” for purposes of the exemption as legal capacity, rather than physical capacity, is inconsistent with certain feedlot rules. For example, feedlot permit applications must contain “a list of all animal types, and the maximum number of animals of each animal type that can be confined within each lot, building, or area at the animal feedlot[J” Minn. R. 7020.0505, subp. 4(A)(4) (2003) (emphasis added). The common meaning of “that can be confined” suggests physical capacity, rather than legal capacity. Also, the “expansion” of a feedlot is defined as “construction or any activity that has resulted or may result in an increase in the number of animal units that an animal feedlot is capable of holding or an increase in storage capacity of a manure storage area.” Minn. R. 7020.0300, subp. 11a (2003) (emphasis added). Given the definition of “expansion,” construing “capacity” in this provision as legal capacity, rather than as physical capacity, would equate an application to increase the number of animal units being housed at an under-utilized feedlot with the construction of a new feedlot.

Thus, we reject the county’s argument that “capacity” refers to legal capacity, rather than physical capacity, not only because this creates incongruence between both of these rules, but also because such construction is inconsistent with the common meaning of the statutory term. See Minn.Stat. § 645.08(1) (2004) (stating that words in statutes are to be construed according to their “common and approved usage”); Minn.Stat. § 645.001 (2004) (stating that provisions of chapter 645 “govern all rules becoming effective after June 30, 1981[,]” unless specifically provided otherwise). We conclude that the “capacity” for determining whether a proposed project is exempt from environmental review under Minn.Stat. § 116D.04, subd. 2a(d), is physical capacity rather than legal capacity. And it is undisputed here that the physical capacity of the proposed the feedlot exceeds 1,000 AUs. The proposed feedlot, therefore, is not exempt from environmental review.

II.

In its motion for summary judgment, BAA asserted that the PCA, rather than the county, should have addressed whether an EIS was required. The district court ruled that the county was the RGU for addressing that question. In its request for reconsideration, BAA challenged this determination, and the district court declined to address it because motions for reconsideration are disfavored and because BAA’s argument on the point was unfocused. On appeal, BAA again argues that the PCA, rather than the county, was the RGU and should have determined whether an EIS was required.

It is undisputed that Finstuen’s proposed project requires a permit from an RGU. “Any Minnesota county board may, by resolution, with approval of the [PCA], assume responsibility for processing applications for permits required by the [PCA] under this section for livestock feedlotsf.]” Minn.Stat. § 116.07, subd. 7 (2004); accord Minn. R. 7020.1500 (2003). Regarding the jurisdiction of administrative agencies generally, the Minnesota Supreme Court has stated:

Jurisdiction of an administrative agency consists of the powers granted it by statute. Lack of statutory power betokens lack of jurisdiction. It is therefore well settled that a determination of an administrative agency is void and subject to collateral attack where it is made either without statutory power or in excess thereof.

McKee v. County of Ramsey, 310 Minn. 192, 195, 245 N.W.2d 460, 462 (1976) (quoting State ex rel. Spurck v. Civil Serv. Bd., 226 Minn. 253, 259, 32 N.W.2d 583, 586 (1948)). Because a county’s assumption of the responsibility to process feedlot permit applications is derivative of the PCA’s authority to process those applications, the county’s authority to process applications for feedlot permits is necessarily subject to the same limits on its authority and jurisdiction. Questions of an agency’s jurisdiction and authority over a particular area are subject to de novo review. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

A county assuming the responsibility to process feedlot permit applications is referred to as a “delegated county.” See Minn. R. 7020.0300, subp. 9a (2003) (defining “[d]elegated county” as one that has “received authorization pursuant to part 7020.1600,subpart 3a, item C, to implement an animal feedlot program”); see also Minn. R. 7020.1600, subp. 3aC (2003) (stating that, to assume responsibility for administering a feedlot program, county must, among other things, “[rjeceive written authorization from the commissioner [of the PCA] to administer the [feedlot program]”). And “processing” a feedlot permit application “may include, at the option of the county board, issuing, denying, modifying, imposing conditions upon, or revoking permits pursuant to the provisions of this section or rules promulgated pursuant to it[.]” Minn.Stat. § 116.07, subd. 7(b).

Here, the county’s written decision not to require an EIS states that it is the RGU “as a delegated County in partnership with the [PCA.] ” This delegation occurred pursuant to the county’s Resolution for the Establishment of a County Animal Feedlot Program dated April 17, 1980. Under the PCA-approved Permit Application Processing Procedure associated with that delegation, the county agreed to forward to the director of the PCA “all animal feedlot permit applications” in certain categories, including “[a]nimal feedlots of 1,000 animal units or more[.]” While Finstuen’s proposed animal feedlot has a capacity of more than 1,000 AUs, it will house only 995 AUs. And Finstuen has indicated that, at present, he does not plan to increase the number of AUs housed at the proposed facility. Therefore, it could be argued that Finstuen’s proposed facility does not run afoul of the limits on the scope of the authority that the PCA delegated to the county. However, we reject this argument as inconsistent with the rules.

Delegated counties “shall” process permit applications as set forth in Minn. R. 7020.1600,subp. 4aA-D (2003). Minn. R. 7020.1600,subp. 4a (2003). Under these provisions, “[t]he county feedlot pollution control officer shall forward to the commissioner [of the PCA] for issuance all permit applications and all other applicable documents, comments, and recommendations” in several categories of applications, including “all facilities that are required to apply for a permit under part 7020.0405, subpart 1, item A or B[.]” Minn. R. 7020.1600,subp. 4aB(1). Minn. R. 7020.0405, subp. 1A, B(1) (2003), require a National Pollutant Discharge Elimination System permit for feedlots fitting the definition of a “concentrated animal feeding operation” (CAFO), and a “State disposal system” permit for “the construction and operation” of a non-CAFO feedlot or manure storage area “capable of holding 1,000 or more [AUs] or the manure produced by 1,000 or more [AUs].” (Emphasis added.)

Although the record does not address whether Finstuen’s proposed feedlot is a CAFO, the record is uncontroverted that Finstuen’s application proposes the construction and operation of a feedlot that is “capable” of holding more than 1,000 AUs. Thus, if the proposed feedlot is a CAFO, it requires a permit under Minn. R. 7020.0405, subp. 1A; and if it is not a CAFO, it requires a permit under Minn. R. 7020.0405, subp. 1B(1). Because in either case the proposed feedlot requires a permit under rule 7020.0405, subpart 1, item A or B, the county was required to forward Finstuen’s permit application to the PCA. Minn. R. 7020.1600, subp. 4aB(1).

The county lacked authority to issue permits for Finstuen’s proposed feedlot and was required to forward Finstuen’s permit application to the PCA. We, therefore, reverse the county’s grant of Fin-stuen’s permit application. In light of our decision that the PCA, not the county, is the RGU, we need not address the parties’ disputes as to other aspects of the county’s processing of Finstuen’s feedlot permit application.

DECISION

Because Mark Finstuen’s proposed feedlot is physically capable of housing more than 1,000 animal units, and because Minn. Stat. § 116D.04, subd. 2a(d) (2004), exempts from environmental review only feedlots that are physically capable of housing fewer than 1,000 animal units, the statute does not exempt Finstuen’s proposed feedlot from environmental review. Dodge County has assumed responsibility to process feedlot applications under Minn. Stat. § 116.07, subd. 7 (2004). However, because Finstuen’s proposed feedlot is of a type listed in Minn. R. 7020.0405, subp. 1A, B (2003), Minn. R. 7020.1600, subp. 4aB (2003), rendered the PCA the responsible governmental unit and required the county to forward Finstuen’s feedlot permit application to the PCA.

Affirmed in part and reversed in part.

MINGE, Judge,

concurring specially.

I join in the opinion of the court, and concur to add comments regarding the potential cumulative effect of the proposed livestock facility.

The law provides that: “Where there is potential for significant environmental effects resulting from any major governmental action, the action shall be preceded by an environmental impact statement (EIS) prepared by the responsible governmental unit.” Minn.Stat. § 116D.04, subd. 2a (2004); see also Minn. R. 4410.1700, subp. 1 (2003). In determining the effects of governmental action, the law requires that an environmental assessment worksheet (EAW) be prepared for certain types of activity. Minn.Stat. § 116D.04, subd. 2a(a) (2004). The Environment Quality Board (EQB) has determined that an EAW is required for certain feedlot proposals including all with a capacity exceeding 1,000 animal units. Minn. R. 4410.4300, subp. 29, item A (2003). A determination of environmental effects and the EAW must include an evaluation of the “cumulative potential effects of related or anticipated future projects.” Minn. R. 4410.1700, subp. 7, item B (2003). This effect is defined as one which “results from incremental effects of the project in addition to other past, present and reasonably foreseeable future projects regardless of what person undertakes the project.” Minn. R. 4410.0200, subp. 11 (2003).

Mark Finstuen proposed to expand an existing 35-head cattle feeding operation by constructing two hog confinement buildings in which he planned to place 2,400 sows (960 animal units). We have upheld the district court determination that the physical capacity of the two proposed buildings is over 1,000 animal units. There is evidence that they could house as many as 1,440 animal units. Dodge County considered the impact of Finstuen’s proposed feedlot based on its having 995 animal units and found that “Finstuen had no plans to expand at this site.” The county did not define whether this conclusion meant that there was no plan to construct additional buildings or no plan to further utilize the proposed buildings to house an additional 480 animal units, nor did the county determine whether the capacity of 480 additional animal units represent a cumulative potential impact or effect. If this physical capacity is considered a part of the potential cumulative effect, the EAW should have recognized that entire capacity in determining whether this project has a significant environmental effect.

It is tempting to ignore the capacity of a facility and only look at the number of animal units proposed to be housed in the buildings under a permit application. However, as the opinion of this court explains, physical capacity is a key concept in the statutes. Furthermore, ignoring the physical capacity is at variance with plain meaning of the phrase “potential cumulative impact” and disregards the foreseeable economic pressures to utilize buildings once constructed. This is the time to assess the impact. The record is silent on why the buildings would not be used at maximum capacity and whether there are alternative uses for the buildings. If their highest and'best economic use is as a hog facility, the evaluation of the impact of already constructed buildings should not be deferred until the force of economic necessity weighs heavily for exceptions and variances.

From the record, it appears that if the potential cumulative effect includes the full physical capacity of the proposed buildings, several matters need further analysis to determine whether the project would have a significant environmental effect and whether an EIS is needed. One is the farmland available for spreading manure from the facility. Dodge County found that 1,200 acres were needed to handle the manure and that that acreage had been identified. At full capacity, 50% more animal units would be in the facility and 1,800 acres of land would apparently be needed. The Pollution Control Agency (PCA) commented some fields have steep slopes and that Finstuen’s plan to spread manure after fall harvest delays absorption of nutrients until the next growing season. The significance of these comments on needed or appropriate acreage for manure application is unclear. However, the EAW should analyze the acreage needed to properly handle the potential cumulative effect of these considerations and, given the reported extensive Karst formations in the area, whether suitable acreage is available for manure application without creating a significant environmental effect.

Another example of the importance of fully assessing the potential cumulative effect is groundwater quality. The record indicates that water from private wells serving the nearby church and many residents is not potable. Only water from deeper wells that reach lower aquifers is potable. The EAW assumes that continued application of historic levels of fertilizer will not create a potential for significant environmental impact. It does not appear that the EAW considered the risk of yet further degradation of the water table including the risk to deeper aquifers from continued application of fertilizer at historic approved levels and whether the potential cumulative impact of the facility proposed by Finstuen will establish a demand for manure application that will contribute to the current groundwater problem. This risk and potential impact is important in assessing whether there is a significant environmental effect from the proposed facility.

The potential cumulative effect of odor from a facility operating at capacity and other matters may similarly be important. This court is not the appropriate body to determine the potential cumulative environmental effects. The responsible governmental unit should make these determinations.

We have concluded that the PCA has jurisdiction to determine the need for an EIS and to issue permits for feedlots with a capacity greater than 1,000 animal units. The PCA is the responsible governmental unit. Presumably, the PCA had the duty to prepare or at least approve the adequacy of the EAW. In this case the EAW and environmental analysis were handled and determined by Dodge County. The parties have not argued and we do not reach the question of the status of the EAW or the environment analysis based on its authorship.