author: CADY, Justice.

text:
    Allan T. THOMS, Appellant, v. IOWA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM and Employment Appeal Board, Appellees.
    No. 04-1730.
    Supreme Court of Iowa.
    June 2, 2006.

      Alice E. Helle and Douglas E. Gross of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellant.
    Gregg A. Schochenmaier, Des Moines, for appellees.
   CADY, Justice.

In this judicial review proceeding, an Iowa Public Employees’ Retirement System (IPERS) pensioner who retired, returned to work, and retired again claims he was entitled to have his retirement benefits calculated by adding the years of his original employment to the years of his reemployment. Instead, IPERS calculated the amount of his benefits by separately determining his benefits based upon his original employment and adding them to the benefits calculated from the period of his reemployment. The district court affirmed the Employment Appeal Board decision that affirmed a decision by an administrative law judge (ALJ) that found IPERS properly determined the benefits. On our review, we affirm the district court.

I. Background Facts and Proceedings

Allan Thoms was a State employee covered by IPERS. In 1994, at age fifty-six, he retired from his State employment after 14.75 years of service. He began receiving monthly IPERS benefits of $570.78 in July 1994. In April 1995, he returned to IPERS-covered employment. His retirement benefits were suspended after his earnings exceeded the limitation in Iowa Code section 97B.48A (1995). Thoms worked for the State for an additional 6.5 years, and retired again on October 26, 2001. He then applied for retirement benefits.

On January 30, 2002, IPERS notified Thoms by letter that his final wages had been credited to his account, and his reemployment termination notice had been processed. IPERS gave Thoms the choice of a lump-sum refund or monthly benefits for the remainder of his life. Thoms requested monthly benefits, which were subsequently recalculated to be $1441.83. This amount was based upon his original monthly benefit of $570.78, added to the monthly benefit of $871.05 derived from his period of reemployment.

Thoms appealed the recalculation of benefits, asserting his “benefit should be recalculated to take into account his additional years of service, additional earnings and increased age at the time of his ‘re-retirement,’ with a single recalculated retirement allowance being paid.” See Iowa Code § 97B.20A (2001) (“If the party appeals the decision of the department, the department shall conduct an internal review of the decision and the chief benefits officer shall notify the individual who has filed the appeal in writing of the department’s decision.”). In other words, Thoms wanted his retirement benefits recalculated based on the total years of service from his two periods of employment and the circumstances existing at the time of his second retirement. The two different methods of calculations resulted in a significant difference in the amount of benefits. IPERS conducted an internal review and issued a final agency determination affirming its recalculation of Thoms’s benefits. See id.

Thoms appealed IPERS’s determination to the Department of Inspections and Appeals (DIA). See id. (“The individual who has filed the appeal may file an appeal of the department’s final decision with the department under chapter 17A by notifying the department of the appeal in writing within thirty days after the notification of its final decision was mailed to the party’s last known mailing address. Once notified, the department shall forward the appeal to the department of inspections and appeals.”). An administrative law judge (ALJ) with the DIA held a hearing. Thoms and IPERS entered into a stipulation of facts (agreeing to the facts set forth above) and submitted it to the ALJ. The ALJ issued its decision on January 20, 2004. The ALJ found IPERS was correct in calculating separate benefits based on the separate employment periods and adding them together to send a single check. Thoms petitioned for review by the Employment Appeal Board. See id. § 97B.27. The Board affirmed and adopted the ALJ’s decision.

Thoms filed a petition for judicial review in district court. See id. § 97B.29 (“Judicial review of action of the system may be sought in accordance with the terms of the Iowa administrative procedure act.”). Thoms claimed the agency decision was subject to reversal under each of the fourteen grounds for reversal in the administrative procedure act. See id. § 17A.19(10)(a )-(n). The district court affirmed the agency’s decision. Thoms appeals.

II. Standard of Review

The Iowa Administrative Procedure Act, Iowa Code chapter 17A, governs the scope of our review in this case. Iowa Code § 97B.29. Under the Act, we may only interfere with the agency decision if it is erroneous under a ground enumerated in the statute, and a party’s substantial rights have been prejudiced. Id. § 17A.19(10). Thoms did not specify which of the grounds in the statute supports reversal of the agency’s decision. However, Thoms is challenging the agency’s interpretation of Iowa Code section 97B.48A, the statute governing benefits upon retirement after employment. Section 17A.19(10)(c) provides that an agency’s action is subject to reversal if it is “[b]ased upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested in the discretion of the agency.” Id. § 17A.19(10)(c); see also Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act (1998) Chapter 17A Code of Iowa (House File 667 As Adopted) 62 (1998) [hereinafter Bonfield] (“Normally, the interpretation of a statute is a pure question of law over which agencies are not delegated any special powers by the General Assembly so, a court is free to, and usually does, substitute its judgment de novo for that of the agency and determine if the agency interpretation of the statute is correct. That is what the first ten words of paragraph (c) say.”). This section utilizes the familiar correction-of-errors-at-law standard of review. Section 17A.19(10)(i) provides that an agency’s action is subject to reversal if it is “[bjased upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(10)(i); see also Bon-field at 62 (“[Wjhere the General Assembly clearly delegates discretionary authority to an agency to interpret or elaborate a statutory term based on the agency’s own special expertness, the court may not simply substitute its view as to the meaning or elaboration of the term for that of the agency but, instead, may reverse the agency interpretation or elaboration only of it is arbitrary, capricious, unreasonable, or an abuse of discretion.”). This section utilizes a deferential abuse-of-discretion standard of review. Bonfield at 62. To determine which section governs our review— and, consequently, how much deference we give to the agency’s interpretation — we must determine whether the interpretation of section 97B.48A has “clearly been vested in the discretion of’ IPERS.

Chapter 97B makes IPERS the administrator of the retirement system established under Iowa Code chapter 97B. See id. § 97B.4(2) (setting forth IPERS’s powers and duties); see also id. § 97B.1(1) (“The Iowa public employees’ retirement system shall administer the system established under this chapter.”). Section 97B.4 provides IPERS with rulemaking authority:

The system may adopt ... rules ... and take other action it deems necessary for the administration of the retirement system in conformity with the requirements of this chapter, the applicable provisions of the Internal Revenue Code, and all other applicable federal and state laws. The rules shall be effective upon compliance with chapter 17A.

Id. § 97B.4(2)(a). We have held that similar language vested the interpretation of a statute in the relevant agency’s discretion. In City of Marion v. Iowa Dep’t of Revenue & Finance, we concluded that Iowa Code section 422.68(1), which provides, “The director shall have the power and authority to prescribe all rules not inconsistent with the provisions of this chapter, necessary and advisable for its detailed administration and to effectuate its purposes,” vested the interpretation of section 422.45(20) with the department of revenue and finance. City of Marion, 643 N.W.2d 205, 207 (Iowa 2002); accord Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) (concluding section 123.21, granting the agency authority to adopt rules “necessary to carry out this chapter” “clearly vested the interpretation of section 123.45 with the agency”); Becker v. Iowa Dep’t of Human Servs., 661 N.W.2d 125, 128-29 (Iowa 2003) (“We give weight to administrative interpretations of statutes that agencies administer.” (citing Iowa Code § 4.6(6); City of Waterloo v. Black Hawk Mut. Ins. Ass’n, 608 N.W.2d 442, 445 (Iowa 2000); In re G.J.A., 547 N.W.2d 3, 6 (Iowa 1996))). Thus, we utilize a deferential standard of review in this ease. This does not mean the agency’s interpretation is conclusive, but we give it “appropriate deference.” See Iowa Code § 17A.19(11)(c) (stating that with respect to matters vested by law in an agency, we “[s]hall give appropriate deference” to the agency’s interpretation); see also Bonfield at 72 (defining “appropriate deference” to mean “the agency action is subject to review by the unreasonable, arbitrary, capricious, or abuse of discretion standard”). We will not reverse an agency action based on an interpretation of law whose interpretation has been clearly vested by a provision of law in the agency’s discretion, unless the agency’s interpretation is “irrational, illogical, or wholly unjustified.” Iowa Code § 17A.19(10)(i); see also Niles v. Iowa Dist. Court, 683 N.W.2d 539, 541 (Iowa 2004) (explaining that in interpreting statutes, specific terms (such as “irrational, illogical, or wholly unjustified”) control general terms (such as “appropriate deference” (citing Burton v. Unir, of Iowa Hosps. & Clinics, 566 N.W.2d 182, 189 (Iowa 1997); Christenson v. Iowa Dist. CL, 557 N.W.2d 259, 262-63 (Iowa 1996))).

III. Discussion

Section 97B.48A(3) determines how benefits are to be calculated when an IP-ERS member retires from covered employment, then resumes covered employment, and retires again. Both parties agreed the resolution of the correct computation of benefits rests with this statute. It provides:

Upon a retirement after reemployment, a retired member may have the retired member’s retirement allowance redetermined under this section or section 97B.48, section 97B.50, or section 97B.51, whichever is applicable, based upon the addition of credit for the years of membership service of the employee after reemployment, the covered wage during reemployment, and the age of the employee after reemployment. The member shall receive a single retirement allowance calculated from both periods of membership service, one based on the initial retirement and one based on the second retirement following reemployment. If the total years of membership service and prior service of a member who has been reemployed equals or exceeds thirty, the years of membership service on which the original retirement allowance was based may be reduced by a fraction of the years of service equal to the number of years by which the total years of membership service and prior service exceeds thirty divided by thirty, if this reduction in years of service will increase the total retirement allowance of the member. The additional retirement allowance calculated for the period of reemployment shall be added to the retirement allowance calculated for the initial period of membership service and prior service, adjusted as provided in this subsection. The retirement allowance calculated for the initial period of membership service and prior service shall not be adjusted for any other factor than years of service. The retired member shall not receive a retirement allowance based upon more than a total of thirty years of service. Effective July 1, 1998, a rede-termination of a retirement allowance as authorized by this subsection for a retired member whose combined service exceeds the applicable years of service for that member as provided in sections 97B.49A through 97B.49G shall have the determination of the member’s reemployment benefit based upon the percentage multiplier as determined for that member as provided in sections 97B.49A through 97B.49G.

Iowa Code § 97B.48A(3).

Based on this statute, IPERS calculates retirement benefits for members who retire after reemployment by taking the sum of the benefits calculated from the initial period of employment and the benefits calculated from the period of reemployment. These two separate calculations are then added together into a single retirement allowance. One administrative rule promulgated by IPERS similarly explains the recomputation of benefits by a member who is reemployed in covered employment after retirement and retires again. It provides:

A member who is reemployed in covered employment after retirement may, after again retiring from employment, request a recomputation of benefits. The member’s retirement benefit shall be increased if possible by the addition of a second annuity, which is based on years of reemployment service, reemployment covered wages and the benefit formula in place at the time of the re-computation. A maximum of 30 years of service is creditable to an individual retired member. If a member’s combined years of service exceed 30, a member’s initial annuity may be reduced by a fraction of the years in excess of 30 divided by 30. The second retirement benefit will be treated as a separate annuity by IPERS. Any contributions that cannot be used in the recomputation of benefits shall be refunded to the employee and the employer.

Iowa Admin. Code r. 495 — 12.8(3) (2004) (emphasis added).

Thoms primarily challenges the method of calculation by IPERS by isolating the second sentence in the relevant statute, “The member shall receive a single retirement allowance calculated from both periods of membership, one based on the initial retirement and one based on the second retirement following reemployment.” Iowa Code § 97B.48(3). He claims this sentence expresses the legislative intent for retired members to receive “a single retirement allowance,” not two allowances added together, calculated from both periods of membership service, meaning the total years of service. In other words, Thoms claims this sentence means benefits following retirement after reemployment are determined by adding the two periods of employment together and computing benefits based on a single uninterrupted period of employment. IP-ERS, on the other hand, asserts this sentence merely means that the member should only receive one monthly allowance in the form of a single check for the total of the two benefits added together.

We interpret statutes by considering them as a whole, not by looking at isolated parts of the statute. State v. Young, 686 N.W.2d 182, 184-85 (Iowa 2004). Thus, we begin our analysis with the entire statute in mind.

A member who retires after reemployment already has an existing retirement allowance in place. The benefits are merely suspended or otherwise limited during the period of reemployment. Thus, retirement after a period of reemployment means the existing retirement allowance may need to be redetermined based upon the period of reemployment. Section 97B.48A(3), the statute at the center of this controversy, addresses how the allowance is redetermined.

We acknowledge the section is not crystal clear, especially considering only the first two sentences of the statute. The statute addresses a complicated subject matter that involves a very detailed and intricate process. It is not always easy to express mathematical formulas in words, and it is understandable how different interpretations can result from statutes describing the rather enigmatic subject of retirement and pension plans. We have recognized the ease with which different interpretations can result from almost all statutes, and this is even more so with pension statutes. See Teamsters Local Union No. ⅛21 v. City of Dubuque, 706 N.W.2d 709, 713 (Iowa 2005) (“Disputes over the interpretation of a statute can arise even with the most carefully drafted laws. Disputes arise because it is nearly impossible, even for the most thoughtful lawmakers, to anticipate all future circumstances and neatly corral them into communicative words.” (citing 2A Norman J. Singer, Statutes and Statutory Construction § 45:02, at 15 (6th ed.2000))). However, when section 97B.48A(3) is considered in its entirety, it becomes clear that the redetermination is based upon the sum of the two separate benefit amounts computed for each period of employment. Thus, we find it largely unnecessary to lock horns over particular words and phrases within each sentence of the statute in this case because the entirety of the statute clearly resolves the dispute.

After the statute describes in the first sentence the three factors upon which a redetermination is made (“the years of membership after reemployment, the covered wage during reemployment, and the age of the employee after reemployment”), and explains in the second sentence that the member receives a single retirement allowance based on the redetermination calculated from both periods of service (“The member shall receive a single retirement allowance calculated from both periods of membership service, one based on the initial retirement and one based on the second retirement following reemployment.”), the third sentence describes the calculation method when the total years of service exceeds thirty years. While the third sentence is not factually applicable to this case, it unmistakably clarifies the intended calculation scheme under the statute for retirement after reemployment.

It was necessary for the legislature to articulate a specific provision describing how a retirement allowance would be calculated for retirement after reemployment in the event the total years of membership service exceeded thirty years because monthly IPERS benefits equal one-twelfth of the applicable percentage of the three-year average covered wage multiplied by the fraction of years of service, which is the years of service divided by thirty years. Iowa Code § 97B.49A(3). However, this fraction of years of service, used as the multiplier, can never exceed one. Id. § 97B.49A(1)(6). Thus, years of service by a state employee in excess of thirty years do not benefit a member in the calculation process by increasing the fraction of years of service to a number greater than one. Consequently, when a member retires after reemployment with more than thirty years of total service, the third sentence of the statute permits the member to adjust the initial retirement allowance by reducing the service years used in the calculation by the total number of service years in excess of thirty, so the calculation of the second retirement allowance based on the period of reemployment can utilize those years in the event they will make the total allowance greater. Without this provision, the second retirement allowance could only use the number of years remaining after the original years of service during the original period of employment up to thirty.

This procedure is important in interpreting the statute because it clearly reveals that the single retirement allowance given after retirement following reemployment is based on two separate calculations, which are then added together. That is, the calculation process described in the first two sentences reveals that the calculation of the second retirement benefit amount is based on the period of reemployment, which is then added to the initial retirement benefit amount for a total single allowance. Clearly, if the statute instead contemplated that the calculation was made after adding together the two periods of employment, as claimed by Thoms, it would be unnecessary for our legislature to implement the procedure described in the third sentence governing reemployment that covers total service years in excess of thirty years. In other words, it would be unnecessary to have a procedure to permit a retired member to allocate the thirty-years-of-service cap between the first period of service and the second period of service to come up with the most advantageous final retirement allowance if the two periods of employment were combined together anyway and the benefit was determined based on factors existing at the time of the second retirement. It would be unnecessary because the allowance for retirement after reemployment under that method of calculation would not change depending on the number of years of service allocated between the two periods. We will not read a statute so that any provision will be rendered superfluous. See Miller v. Marshall County, 641 N.W.2d 742, 749 (Iowa 2002) (“Each term [in a statute] is to be given effect, so that no single part is rendered insignificant or superfluous.” (Citation omitted.)); 2A Singer § 46:06, at 181 (“ ‘It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.’ ”).

The remainder of the statute only confirms this interpretation. In particular, the fourth sentence makes it clear that the additional (second) retirement allowance calculated for the reemployment period is “added” to the initial retirement allowance, as adjusted, calculated for the initial period. See Iowa Code § 97B.48A(3) (“The additional retirement allowance calculated for the period of reemployment shall be added to the retirement allowance calculated for the initial period of membership service ..., adjusted as provided in this subsection.”). Any doubt cast by the first two sentences over the question whether the final allowance is calculated based on separate periods of service or a combination of the periods of service is amply resolved by considering the entire statute.

We conclude the interpretation of the statute by IPERS under its applicable rules and regulations reflects the intent of the legislature to calculate retirement benefits after reemployment separately on each period of employment. The district court correctly concluded that the interpretation by IPERS was not “irrational, illogical, or wholly unjustified.” Id. § 17A.19(1)(Z).

IV. Conclusion

The decision by the district court on the petition for judicial review filed by Thoms was correct. IPERS correctly determined Thoms’ monthly benefits by calculating one annuity based on his initial employment, and adding to it a second annuity based on his reemployment. Accordingly, we affirm.

AFFIRMED.

      . That section provided.:
      If, after the first day of the month in which the member attains the age of fifty-five years and until the member’s sixty-fifth birthday, a member who has a bona fide retirement under this chapter is in regular full-time employment during a calendar year, the member’s retirement allowance shall be suspended for as long as the member remains in employment for the remainder of that calendar year. However, effective January 1, 1992, employment is not full-time employment until the member receives remuneration in an amount in excess of seven thousand four hundred forty dollars for a calendar year. Effective the first of the month in which a member attains the age of sixty-five years, a retired member may receive a retirement allowance after return to covered employment regardless of the amount of remuneration received.
      Iowa Code § 97B.48A(1) (1995).

      . Thoms wanted IPERS to add his first period of employment, 14.75 years, to his second period of employment, 6.75 years, for a total of 21.5 years. This increases his total benefit more than just adding the two calculated benefits together because IPERS benefits are calculated using a “fraction of years of service,” in which the numerator is the years of service, and the denominator is 30. The formula for calculating monthly IPERS benefits is:
      Years of service
      1/12 x (.60 x three-year average covered wage) x 30
      Iowa Code § 97B.49A(3) (2001); Iowa Code § 97B.49(5)(fc) (1995).
      Thoms also wanted to use a figure of approximately $100,000 for his three-year average covered wage, not the $35,666 average wage used by IPERS. The $35,666 figure is the average of Thoms’s wages in 1992, 1993, and 1994 — the three years before his initial retirement. Before Thoms retired the second time, his salary was approximately $100,000.
      Finally, Thoms wanted to calculate his benefits based on his age at the time of the second retirement, 64. When he retired the first time, he was 56, so IPERS applied an early-retirement penalty. See Iowa Code § 97B.50(l)(a) (1995) (“[A] vested member, upon retirement prior to the normal retirement date ... is entitled to receive a monthly retirement allowance ... reduced as follows: ... For a member who is less than sixty-two years of age, by twenty-five hundredths of one percent per month for each month that the early retirement date precedes the normal retirement date.”). He wanted IPERS to do a new calculation of his benefits as of 2001, when he was 64, so no early-retirement penalty would apply. See Iowa Code § 97B.50(3) (2001) ("A member who is at least sixty-two years of age and less than sixty-five years of age, and who has completed twenty or more years of membership service and prior service, shall receive benefits under 97B.49A through 97B.49G, as applicable, determined as if the member had attained sixty-five years of age.”).

      . De novo, of course, means "anew.” Black’s Law Dictionary 447 (7th ed.1999). When we interpret a statute “de novo,” what we are doing is employing our familiar correction-of-errors-at-law standard of review. See, e.g., Norwest Credit, Inc. v. City of Davenport, 626 N.W.2d 153, 155 (Iowa 2001) (stating that under correction-of-errors-of-law standard, we are not bound by lower tribunals' determinations of law but instead interpret the law on our own and determine whether our conclusion mirrors that already made); see also Bonfield at 62 ("[M]ost Iowa cases treat agency interpretation of the meaning of a statute as a pure question of law over which they have de novo review, allowing the court simply to substitute its opinion of the meaning of the statute for that of the agency .... ”).

      . Years of service by a state employee over thirty years do add to the applicable percentage of the applicable wage component in the formula by increasing it up to a maximum of sixty-five percent. Id. § 97B.49A(l)(a). That is, IPERS benefits are calculated in part based on sixty percent of the three-year average covered wages. Id. § 97B.49A(3). Years of service in excess of thirty can increase this percentage up to sixty-five percent. Id. § 97B.49A(l)(a).

      . The operation of this procedure can be best described by using an example. Assume an employee initially worked for 20 years, then retired, then later became reemployed for 12 more years. Because the final retirement allowance can only be based on 30 years of service, 2 years of the employee's reemployment would essentially go to waste and could not be used in the "fraction of years of service” used as the multiplier in determining the retirement allowance. This is true because the fraction used to calculate the benefit amount for the period of reemployment could only be 10/30, instead of 12/30, since the fraction used to calculate the initial retirement benefit was 20/30. However, the legislature recognized that it may be more advantageous for the employee to have the final allowance calculated based on more of the reemployment years, as opposed to original employment years. Thus, instead of using 20/30 for the “fraction of years of service” used to calculate the benefit amount for the original employment, the statute allows the employee to reduce that fraction by a fraction in which the "extra” years of service are the numerator, and 30 is the denominator. This would then permit the retired member to use the full 12 years of service in the fraction used to calculate the benefit amount for the period of reemployment. So, in our example, the new fractions would be:

        Fmction of Years of Service for Original Employment

        Fraction of Years of Service for Reemployment

        Was Now Was Now 20 - _2 = 18 10 12 30 30 30 30 30


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    Robert MERCER, Appellant, v. Steven ANDERSEN, M.D., et al., Respondents, Connie Ring, R.N., et al., Respondents.
    No. A05-1103.
    Court of Appeals of Minnesota.
    June 6, 2006.

      J. Mark Catron, Patrick W. Ostergren, Hansen, Dordell, Bradt, Odlaug & Bradt, PLLP, St. Paul, MN, for appellant.
    Mark W. Hardy, Geraghty, O’Loughlin & Kenney, St. Paul, MN, for respondents Steven Andersen, M.D., et al.
    Mike Hatch, Attorney General, P. Kenneth Kohnstamm, Assistant Attorney General, St. Paul, MN, for respondents Connie Ring, R.N., et al.
    Considered and decided by HALBROOKS, Presiding Judge; LANSING, Judge; and SHUMAKER, Judge.
   OPINION

LANSING, Judge.

The district court dismissed with prejudice Robert Mercer’s medical-malpractice claims against Steven Andersen and partially dismissed his malpractice claims against the remaining defendants for failure to comply with the expert-review requirements of Minn.Stat. § 145.682 (2004). On appeal Mercer challenges both dismissals. Because we conclude that the district court properly exercised its jurisdiction by dismissing the complaint against Andersen as outside the statute of limitations, correctly applied the statutory expert-review requirements, and acted within its discretion by denying Mercer’s motion to extend the scheduling-order deadline, we affirm.

FACTS

Robert Mercer was an inmate at a Minnesota correctional facility in May 2000 when he developed an inflammation related to his previously diagnosed condition of psoriasis and sought treatment at the facility’s health clinic. Dr. Steven Andersen consulted with Mercer and prescribed a treatment of ultraviolet light. Andersen ordered Mercer to expose the inflamed area of his face to ultraviolet light for twenty minutes, three times a week, for six months. Mercer began the self-administered treatment the next day. Connie Ring, a nurse at the facility, showed him Andersen’s order prescribing treatment and instructed him on the use of the light machine and the necessity of wearing protective goggles. In his first and only treatment session, Mercer did not wear the goggles and, wearing only his underwear, exposed his entire body to the ultraviolet light for approximately fifteen minutes. As a result of this session, Mercer sustained burns all over his body and also experienced eye pain. He was diagnosed with keratitis, an inflammation of the cornea.

In March 2004 Mercer sued Andersen, Ring, Correctional Medical Services, Inc., and the State of Minnesota Department of Corrections for negligence and battery. Mercer did not obtain personal service of Andersen who had moved to Haiti with his family in August 2000 to accept a position as medical director of a missionary clinic. In July 2004 Andersen moved to dismiss the claims against him for insufficiency of process and expiration of the statute of limitations. The district court dismissed the complaint with prejudice, reasoning that the statute of limitations barred the action. The district court then granted partial dismissal for the remaining parties under Minn.Stat. § 145.682, subd. 6 (2004), holding that Mercer failed to satisfy the statutory expert-review requirements for medical-malpractice claims because his expert affidavit failed to address causation between the alleged negligent acts and Mercer’s alleged permanent injuries. The court also denied Mercer’s motion to extend the scheduling-order deadline to allow him to comply with the expert-review statute.

Mercer raises four issues on appeal. First, he argues that the court lacked jurisdiction to dismiss his case against Andersen with prejudice. Second, he asserts that, even if the court had jurisdiction, Andersen’s absence from Minnesota tolled the statute of limitations. Third, he contends that the court erred by dismissing his claims alleging permanent injuries because he complied with the requirements of the expert-review statute. Finally, Mercer argues that, if his expert affidavit did not satisfy the statutory requirements, the court erred by denying his motion to extend the scheduling-order deadline for good cause.

ISSUES
I. When the plaintiff concedes that service was insufficient, does the district court have jurisdiction to determine whether the statute of limitations bars the claim?
II. Did the district court err by concluding that a nonresident defendant was subject to service of process in Minnesota and that the plaintiff did not conduct a diligent search under Minn.Stat. § 541.13 (2004) that would toll the statute of limitations?
III. Did the district court abuse its discretion by partially dismissing medical-malpractice claims for noncompliance with the expert-review requirements of Minn.Stat. § 145.682 (2004)?
IV.Did the district court abuse its discretion by denying the plaintiffs motion to extend for excusable neglect a scheduling-order deadline?

ANALYSIS

I

Jurisdiction is a question of law, which we review de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002). Mercer argues that because he conceded that service on Andersen was insufficient, the court lacked jurisdiction to consider that part of Andersen’s motion requesting dismissal with prejudice based on expiration of the statute of limitations. We are unable to find authority that supports Mercer’s claim that the court exceeded its jurisdiction by considering the effect of the statute of limitations on Mercer’s claims against Andersen.

A case commences when a summons and complaint are served. Minn. R. Civ. P. 3.01-3.02. Ineffective service of a defendant results in a lack of personal jurisdiction. Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn.1997). Although a court’s authority over an ineffectively served defendant may be circumscribed, the court has the power to determine whether it has jurisdiction. United States v. United Mine Workers of Am,., 330 U.S. 258, 290-92, 67 S.Ct. 677, 694-95, 91 L.Ed. 884 (1947) (holding that court has jurisdiction to determine whether it has jurisdiction); Carter v. United States, 135 F.2d 858, 861 (5th Cir.1943) (“[Ejxcept in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction.”); see also Dan B. Dobbs, Beyond Bootstrap: Foreclosing the Issue of Subject-Matter Jurisdiction Before Final Judgment, 51 Minn. L.Rev. 491, 494 (1967) (discussing court’s ability to determine whether it has jurisdiction unless legislature has stated otherwise).

Andersen, the ineffectively served defendant, has not challenged the district court’s jurisdiction to determine the statute-of-limitations issue. To the contrary, it is Andersen’s motion for dismissal with prejudice that invokes the district court’s consideration of the issue. Mercer has neither directly challenged Andersen’s capacity to raise the statute-of-limitations issue nor argued that this request for relief waived Andersen’s defense of insufficient service of process. See Patterson v. Wu Family Corp., 608 N.W.2d 863, 867-68 (Minn.2000) (addressing circumstances under which defendant involuntarily waives defense of lack of personal jurisdiction). Instead, Mercer argues that a court dismissing a case for lack of personal jurisdiction has no authority to decide any other issue and must dismiss the action without prejudice. We conclude that Mercer characterizes the district court’s authority too narrowly.

Statutes of limitations are both procedural and substantive because they regulate when a party may file a lawsuit and when a lawsuit is barred. Lombardo v. Seydow-Weber, 529 N.W.2d 702, 704 (Minn.App.1995), review denied (Minn. Apr. 27, 1995). Although the statute of limitations is a waivable affirmative defense, Andersen immediately raised the issue as a bar to the claim in his first motion to the court, thereby bringing the issue into controversy. See Bd. of County Comm’rs v. Miller, 101 Minn. 294, 297, 112 N.W. 276, 277 (1907) (stating that statute of limitations is affirmative defense that can be waived if not raised timely). Andersen raised both ineffective service and the statute of limitations in his motion to dismiss.

The effect of a statute of limitations is an issue separate from subject matter jurisdiction and personal jurisdiction. See Day v. McDonough, — U.S. -, -, 126 S.Ct. 1675, 1681, 164 L.Ed.2d 376,-(2006) (stating that statute-of-limitations defense is not jurisdictional); Larson v. Dunn, 460 N.W.2d 39, 43 (Minn.1990) (“[Wjhether a claim is time barred is an issue separate from the issue of personal jurisdiction.” (quotation omitted)). But some interplay exists between the two doctrines. Larson, 460 N.W.2d at 43. And, although a district court is not obligated to consider on its own initiative whether a claim is timely, it nonetheless has the authority to dismiss, sua sponte, an untimely claim if the parties have fair notice and an opportunity to present their position. See Day, 126 S.Ct. at 1681 (holding that court has discretion, but not obligation, to raise time bar on its own); Eberhart v. United States, — U.S. -, -, 126 S.Ct. 403, 403-05, 163 L.Ed.2d 14 (2005) (distinguishing between rules governing subject matter jurisdiction and inflexible claims-processing rules); Rubey v. Vannett, 714 N.W.2d 417, 422, 2006 WL 1171857, at *4 (Minn. May 4, 2006) (discussing jurisdictional and claims-processing rules); see also Miemicki v. Duluth Curling Club, 699 N.W.2d 787, 788-89 (Minn.App.2005) (noting that statute of limitations “prescribe[s] a period within which a right may be enforced and after which a remedy is unavailable for reasons of private justice and public policy” (quotation omitted)), review denied (Minn. Sept. 20, 2005). For these reasons, we conclude that the district court did not err by addressing both the service and timeliness components of Andersen’s motion.

We reject Mercer’s claim that this result conflicts with Lewis v. Contracting Northwest, Inc., 413 N.W.2d 154 (Minn.App.1987). In Lewis, the court held that a determination that service is ineffective should result in a dismissal without prejudice. Id. at 157. The Lewis holding must be read in the context of the facts presented in that case. The plaintiff in Lewis sought an order retroactively validating his improper service. Id. The issue in Lewis was whether the district court had the power to retroactively validate insufficient service of process, not whether a district court has jurisdiction to consider a timely motion to dismiss based on both insufficient service of process and expiration of the statute of limitations. Id. We further note that this court has previously considered and affirmed a district court decision to dismiss with prejudice an action for insufficient service of process in conjunction with a statute-of-limitations argument. See Johnson v. Husebye, 469 N.W.2d 742, 745-46 (Minn.App.1991) (affirming district court’s determinations that service was ineffective and statute of limitations would bar refiled complaint), review denied (Minn. Aug. 2, 1991).

II

A plaintiff must bring a medical-malpractice claim within four years of the date the cause of action accrued. Minn. Stat. § 541.076(b) (2004). It is undisputed that Mercer did not effect service on Andersen as required by the Minnesota Rules of Civil Procedure. See Minn. R. Civ. P. 3.01, 4.03-.04 (setting forth when action commences and methods of service). When a medical-malpractice claim is based on a single act of allegedly negligent conduct rather than a course of treatment, the cause of action accrues when the plaintiff sustains damage from the act. Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn.App.2000). Mercer’s cause of action against Andersen therefore accrued on May 31, 2000, after exposure to the ultraviolet light. Unless Andersen’s absence from the state tolled the statute of limitations, Mercer could not sue Andersen for malpractice after May 31, 2004.

A statute of limitations may be tolled if the person against whom a cause of action accrued later leaves the state. Minn.Stat. § 541.13 (2004). If the absent person is not subject to Minnesota laws governing service of process while out of the state or cannot be found after a diligent search for personal service, the period during which the person is absent from the state is not counted for purposes of the statute of limitations. Id. Tolling ensures that the statute of limitations will not bar a cause of action when a plaintiff cannot obtain personal jurisdiction over a defendant who is outside the state. Long v. Moore, 295 Minn. 266, 270, 204 N.W.2d 641, 643 (1973). When an adequate provision exists for acquiring personal jurisdiction over a nonresident, however, this danger is not present, and the statute of limitations is not tolled. Id. at 269-71, 204 N.W.2d at 643-44. The plaintiff bears the burden of proving that the statute of limitations should be tolled. Bartlett v. Miller & Schroeder Muns., Inc., 355 N.W.2d 435, 441 (Minn.App.1984).

We review a dismissal with prejudice for an abuse of discretion, and we see no abuse of discretion in the court’s determination that neither of the conditions that would toll the statute of limitations is satisfied in this case. See Minn. Humane Soc’y v. Minn. Federated Humane Soc’ys, 611 N.W.2d 587, 590 (Minn. App.2000) (stating standard of review for dismissal with prejudice). Minnesota’s long-arm statute allows Minnesota courts with subject matter jurisdiction to exercise personal jurisdiction over a nonresident if the nonresident committed “any act in Minnesota causing injury.” Minn.Stat. § 543.19, subd. 1(c) (2004); see also Webber v. Michela, 633 F.2d 518, 519 (8th Cir.1980) (holding that Minnesota long-arm statute confers jurisdiction to fullest extent permitted under United States Constitution). When a nonresident is subject to personal jurisdiction based on the long-arm provisions, the “service of process ... may be made by personally serving the summons upon the defendant outside” Minnesota. Minn.Stat. § 543.19, subd. 2 (2004). Because Andersen’s alleged negligence occurred in Minnesota, he remained subject to service of process after leaving the state to reside in Haiti, and Minnesota courts could exercise personal jurisdiction over him. See Duresky v. Hanson, 329 N.W.2d 44, 47 n. 4 (Minn.1983) (noting that plaintiffs knowledge of defendant’s whereabouts does not affect analysis of whether defendant is subject to service of process).

Mercer argues that, because Haiti is not a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, Andersen was not subject to service of process while residing in Haiti. But the convention has no bearing on Mercer’s claim precisely because Haiti is not a signatory. See Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, Nov. 15, 1965, 20 U.S.T. 361, 368-69 (listing signatories). And the convention does not provide the sole means for effecting international service; rather, it provides a centralized process for service between countries that are parties to the convention. Id. at 362 (limiting treaty to signatories); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S.Ct. 2104, 2107, 100 L.Ed.2d 722 (1988) (discussing purposes of convention); see also Minn. R. Civ. P. 4.04(c) (stating methods for effecting service outside United States).

Mercer failed to engage in a diligent search to serve Andersen. Minnesota courts have not specifically defined what constitutes a “diligent search” for purposes of Minn.Stat. § 541.13, but have noted that courts should consider “all relevant evidence,” including when, relative to the expiration of the statute of limitations, the plaintiff commenced the search. Dwresky, 329 N.W.2d at 49.

Mercer made several attempts to serve Andersen in Minnesota between March and May 2004. He learned on March 23, 2004, however, that Andersen was likely living in Haiti as a missionary after a sheriff attempted to serve Andersen at a former place of employment in Minnesota. Mercer presented no evidence to the district court that he attempted to follow up on this information. He instead continued to attempt service in Minnesota by serving the Minnesota Commissioner of Commerce in April 2004 and by publishing notice in a Minnesota legal newspaper in May 2004. The only indication that he attempted to contact Andersen outside Minnesota occurred after publication, when Mercer mailed a notice of publication to Andersen at a Florida address in May and June 2004. In support of his motion to dismiss, Andersen presented evidence that an internet search using Andersen’s name and “Haiti” returned one result, which provided a link to Andersen’s employer in Haiti. The linked website stated that Andersen was the medical director, included a picture of him, and also provided U.S. contact information for his organization. The district court did not err by concluding the statute of limitations was not tolled and by dismissing Mercer’s claims against Andersen with prejudice.

Ill

When a medical-malpractice claim requires expert testimony to establish a prima facie case, the plaintiff must satisfy the expert-review requirements set forth in Minn.Stat. § 145.682, subd. 2 (2004). The plaintiff must first serve with the summons and complaint an affidavit by the plaintiffs attorney stating that an expert has reviewed the facts of the case and believes that the defendant deviated from the appropriate standard of care and caused injury to the plaintiff. Id., subds. 2, 3(a) (2004). Within 180 days of commencing litigation, the plaintiff must serve a second affidavit that identifies the experts expected to testify about malpractice or causation and states “the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.” Id., subds. 2, 4(a) (2004). Answers to interrogatories will satisfy the substantive requirements of the second affidavit if they are signed by the plaintiffs attorney and each expert and served within the 180-day time period. Id., subd. 4(a).

Failure to comply with the expert-review requirements results in mandatory dismissal with prejudice of each cause of action for which expert testimony is necessary. Id., subd. 6 (2004). The district court dismissed Mercer’s claim for failure to comply with the requirements of the second affidavit. We review the dismissal of a medical-malpractice claim for noncompliance with the expert-review statute for an abuse of discretion. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn.2005).

The purpose of the expert-review statute is to dismiss meritless claims at an early stage of litigation. Id. Section 145.682 is unambiguous and requires strict compliance with its provisions. Id. at 726; Lindberg v. Health Partners, 599 N.W.2d 572, 577-78 (Minn.1999). To comply with the expert-review statute, plaintiffs must set forth “specific details concerning their experts’ expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.” Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn.1990). Broad or conclusory statements of causation are insufficient. Anderson v. Rengachary, 608 N.W.2d 843, 847 (Minn.2000); Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 556 (Minn.1996).

The district court did not abuse its discretion by dismissing Mercer’s claims of permanent injuries for noncompliance with section 145.682. Mercer first argues that the expert-review statute does not apply to his claims because expert testimony is not necessary to establish a prima facie case. Expert testimony is generally required in medical-malpractice cases because they involve complex scientific or technological issues. Tousignant v. St. Louis County, Minn., 615 N.W.2d 53, 58 (Minn.2000). An exception to this rule applies when the alleged negligent acts are within the general knowledge or experience of laypersons. Id. But only rarely does section 145.682 not apply, and Mercer’s claims do not fall within this exception. See Sorenson, 457 N.W.2d at 191 (stating that medical-malpractice cases not requiring expert testimony are rare).

Mercer’s complaint alleges that he sustained “severe burns all over his skin and body which has resulted in permanent damage” and eye damage, requiring future treatments “to restore eye function and care of his skin.” Although laypersons could understand the relationship between the burns sustained in 2000 and overexposure to ultraviolet light, Mercer alleged that he suffered permanent damage to his skin and eyes nearly four years later. Because these injuries and the alleged causation are beyond the general knowledge of persons outside the medical field, Mercer’s claims require expert testimony to establish a prima facie case and are therefore subject to the requirements of section 145.682.

Mercer submitted one affidavit signed by Dr. Alan Boyd, a dermatologist. Boyd’s affidavit establishes that he specializes in treating skin disorders, including psoriasis, and that he believes Andersen and Ring deviated from the proper standard of care when treating Mercer. With respect to the result of these deviations, however, Boyd stated only that, in his opinion, “the departure from the standard of care was a direct cause of Robert Mercer’s second degree burns.” He provides no information as to the extent or permanency of the burns. The defendants do not dispute that Mercer had second-degree burns in June 2000, but assert that Mercer did not sustain permanent damage. Further, Mercer did not provide an expert affidavit addressing his claimed eye injuries. Boyd’s single sentence on causation is insufficient to comply with Minn.Stat. § 145.682. See Sorenson, 457 N.W.2d at 193 (requiring expert affidavits to include detailed chain of causation.) Similarly, Mercer did not provide answers to interrogatories that would satisfy section 145.682. The district court therefore did not abuse its discretion by dismissing Mercer’s claims of permanent injuries.

IV

The parties or the court may extend the statutory expert-review deadlines for good cause. Minn.Stat. § 145.682, subd. 4(b) (2004). The statutory provision permitting an extension, however, must be read in conjunction with rule 6.02 of the Minnesota Rules of Civil Procedure. Stern v. Dill, 442 N.W.2d 322, 324 (Minn.1989). Rule 6.02 gives the district court discretion to extend deadlines previously set in an order. Minn. R. Civ. P. 6.02. If a previously set deadline has already passed, however, the court may only grant an extension when the failure to act resulted from excusable neglect. Id. 6.02(2). Excusable neglect exists when the plaintiff has a reasonable case on the merits, has a reasonable excuse for not complying with the section 145.682 time limits, acted with due diligence after learning of the time limits, and will not prejudice the defendant by extending the time limits. Anderson, 608 N.W.2d at 850. The district court has broad discretion to amend scheduling-order deadlines, and we review its decision for an abuse of discretion. Broehm, 690 N.W.2d at 727.

The district court did not abuse its discretion by denying Mercer’s motion. Mercer has not established that any of the components of excusable neglect exists. Without an expert affidavit, whether Mercer has a reasonable case on the merits is questionable. Although the defendants conceded that he had second-degree burns in June 2000, medical records indicate that in 2000 and 2001 doctors believed his skin had healed and that they could not attribute problems with his eyes to exposure to ultraviolet light.

Mercer also has not provided a reasonable excuse for failing to satisfy the section 145.682 deadlines. The district court’s scheduling order required Mercer to disclose his experts’ opinions by December 1, 2004. The Boyd affidavit is dated July 2, 2002. Correctional Medical Services’ attorney notified Mercer of perceived deficiencies in the affidavit in October 2004 and later moved for partial dismissal for noncompliance with section 145.682 in December 2004. Section 145.682 requires that, upon a motion for dismissal, the court cannot hold a hearing on the motion for forty-five days and the plaintiff can avoid dismissal by serving an amended affidavit to correct deficiencies in the original. Minn.Stat. § 145.682, subd. 6(c). The district court held a hearing on the motion forty-five days after Correctional Medical Services filed its motion, and Mercer did not file an amended affidavit.

Mercer argues that his incarceration limited his ability to comply with the expert-review statute because he was subject to state control and state-provided doctors. But Mercer obtained the Boyd affidavit in 2002, indicating that he had access to his medical records for an expert to review. Further, the Department of Corrections has procedures that allow an inmate to schedule medical appointments outside the facility. Using these procedures, Mercer visited a dermatologist and an ophthalmologist in 2004. Mercer’s claims that the procedures were too cumbersome to allow compliance with the deadlines are therefore unreasonable. The district court did not abuse its discretion by denying Mercer’s motion to extend the scheduling-order deadline.

DECISION

The district court had jurisdiction to consider the effect of the statute of limitations in conjunction with the motion to dismiss for insufficiency of process and correctly determined that Mercer’s claims against Andersen are barred. Because Mercer’s expert affidavit did not adequately address causation to satisfy the requirements of Minn.Stat. § 145.682 (2004) and Mercer did not establish excusable neglect, the court did not abuse its discretion by partially dismissing Mercer’s claims and by denying his motion to extend the scheduling-order deadline.

Affirmed.


author: HARTEN, Judge.

text:
    INSTANT TESTING COMPANY, et al., petitioners, Appellants, v. COMMUNITY SECURITY BANK, Respondent, Eagan Economic Development Authority, Respondent, Barbara Alice Kopacek, et al., Respondents.
    No. A05-1505.
    Court of Appeals of Minnesota.
    June 6, 2006.

      Kirk Schnitker, Jon W. Morphew, Schnitker & Associates, P.A., Minneapolis, MN, for appellants.
    Robert B. Bauer, Matthew J. Schaap, Severson, Sheldon, Dougherty & Molenda, P.A., Apple Valley, MN, for respondent Eagan.
    Considered and decided by TOUSSAINT, Chief Judge; DIETZEN, Judge; and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Following a December 2003 commercial property closing in a redevelopment project, appellants Instant Testing Company and associated enterprises, in August 2004, requested additional relocation benefits. The request was denied by respondent, Eagan Economic Development Authority (EDA). Appellants then filed a motion in Dakota County district court for a determination of the amount of the claimed additional relocation benefits under Minn. Stat. § 117.232, subd. 2 (2004). The district court dismissed appellants’ claims for failure to meet the necessary statutory requirements, finding that appellants were not tenants and had not rejected EDA’s offer of benefits. Appellants challenge the judgment of dismissal, arguing that they fulfilled the statutory requirements. Because the district court properly concluded that appellants did not reject the offer of benefits as required by section 117.232, subdivision 2, we affirm the district court’s dismissal.

FACTS

Appellants Instant Testing Company and Allied Test Drilling are businesses formerly located at 3996 and 4000 Cedar Grove Parkway, Eagan [hereinafter Eagan properties]. Gordon Kopacek, is the owner of both appellant companies and the Eagan properties. Kopacek is both appellants’ owner and landlord.

In 2001, Kopacek began negotiations with Mark Parrante of Delta Development (Delta) to sell the Eagan properties. Ko-pacek claims that Parranto informed him that he would have to move his businesses by November 2002.

In the spring of 2002, Kopacek found a replacement location in Savage. In September 2002, Kopacek began constructing a new building at the replacement location. In March 2003, the proposed sale to Delta fell through. On or about 11 March 2003, Kopacek contacted the City of Eagan (City) about the sale of the Eagan properties to the City. On 19 March 2003, appellants sent a memo to their customers stating, “We will be moving to our new office and laboratory building on March 21, 2003.”

In April 2003, Kopacek met with Dan Wilson, the acquisition consultant for EDA, to discuss sale of the Eagan properties. In addition to the $305,000 purchase price, Kopacek and Wilson agreed on $41,000 for relocation benefits. Kopacek claims that Wilson represented that $41,000 was the full amount of benefits available and that Wilson failed to provide relocation advisory services or claim assistance.

On 17 June 2003, EDA resolved to purchase the Eagan properties. Shortly thereafter, the parties executed a purchase agreement that included $41,000 for relocation benefits that the parties agreed would be in “full satisfaction of any and all claims for [relocation] benefits.” The sale of the property closed in December 2003.

In August 2004, appellants sent EDA a letter requesting additional relocation benefits. In February 2005, the City and EDA issued a formal decision determining that appellants were not entitled to relocation benefits.

Rather than proceeding with an administrative appeal, appellants filed a motion in Dakota County district court for determination of the amount of additional relocation benefits. The district court dismissed appellants’ action for any lack of subject-matter jurisdiction and standing. This appeal followed.

ISSUE

Did the district court err in determining that it did not have subject-matter jurisdiction because appellants did not meet the statutory requirements necessary to bring an action under Minn.Stat. § 117.232, subd. 2 (2004)?

ANALYSIS

Appellants contend that the district court erred by holding that it did not have subject-matter jurisdiction because appellants were ineligible to state a claim under Minn.Stat. § 177.232, subd. 2 (2004). This presents a question of law, which appellate courts review de novo because statutory interpretation and subject matter jurisdiction are questions of law. Tischer v. Hous. and Redev. Auth. of Cambridge, 693 N.W.2d 426, 428 (Minn.2005). If a court lacks subject-matter jurisdiction, the court must dismiss the action. Minn. R. Civ. P. 12.08. “Minnesota courts have consistently recognized that statutory requirements limiting a court’s jurisdiction are threshold requirements that must be complied with before a court can exercise jurisdiction.” Irwin v. Goodno, 686 N.W.2d 878, 880 (Minn.App.2004) (quoting State v. Rojas, 569 N.W.2d 418, 420 (Minn.App.1997)).

Generally, disputes involving relocation benefits are processed administratively and are subject to judicial review only by writ of certiorari to the court of appeals. See Chanhassen Chiropractic Ctr. v. City of Chanhassen, 663 N.W.2d 559, 563 (Minn.App.2003) (outlining the general administrative appeals process for relocation benefits claims).

Minn.Stat. § 117.232, subd. 2 (2004), creates an exception to the general rule requiring a writ of certiorari for judicial review of local administrative determinations. It provides:

In the event the purchaser and owner agree on the fair market value of the property but cannot agree on the appraisal fees and moving costs, the owner shall have the option to accept the offer for the property and reject the offer for the appraisal fees and moving costs. In addition thereto, the owner may, after due notice to all interested parties, bring a motion at a special term of the district court in the county in which the property is located for a determination of such moving costs and appraisal fees by the court.

Minn.Stat. § 117.232, subd. 2 (2004). It is undisputed that both parties agreed that EDA would pay appellants $41,000 in relocation benefits, which would be in “full satisfaction of any and all claims for benefits” under the Minnesota Uniform Relocation Act. See Minn.Stat. § 117.52-117.56 (2004). The property sale closed in December 2003. On 11 August 2004, appellants notified EDA that they were requesting additional relocation benefits.

It is clear that appellants did not reject the relocation benefits at any time through the closing; they accepted EDA’s $41,000 offer of benefits in full satisfaction of all benefits claims. Section 117.232, subdivision 2, applies when the parties agree to the price of the property but disagree about the amount of moving costs. Here, appellants and EDA formally agreed to both purchase price and relocation benefits. Because appellants did not reject EDA’s offer covering relocation benefits at any time material, appellants became ineligible to invoke a determination by the district court under Minn.Stat. § 117.232, subd. 2.

In their brief and at oral argument before this court, appellants asserted that the waiver of any additional relocation benefits in the purchase agreement was invalid because it failed to meet statutory requirements. Appellants rely on In re Wren, 699 N.W.2d 758 (Minn.2005), to support their argument. In Wren, the Rich-field Housing and Redevelopment Authority (HRA) appealed an administrative law judge’s determination that Wren was entitled to relocation benefits under the Minnesota Uniform Relocation Act. 699 N.W.2d at 758. During the negotiation process, HRA agreed to a $10,000 increase in the purchase price, and Wren waived his right to relocation benefits. Id. at 760-61. After moving, Wren claimed relocation benefits from HRA. Id. at 761. HRA requested a hearing and the administrative law judge found Wren’s waiver invalid. Id. Both the court of appeals and supreme court affirmed. Id. at 765 and 685 N.W.2d 721, 725 (Minn.App.2004).

In Wren, the case went through the administrative process and then was appealed to the court of appeals by writ of certiorari. 699 N.W.2d at 761. Here, the issue of waiver arose only after the parties arrived at a full agreement and formally closed on it. Moreover, section 117.232, subdivision 2, does not specifically allow the district court to determine questions of waiver; it only provides a forum to decide the amount of relocation benefits when the appellant rejects the offer for relocation benefits. In Wren, the HRA exhausted the administrative appeals process before appealing. See 699 N.W.2d at 761. Appellant’s reliance, on Wren is misplaced.

We conclude that the district court correctly dismissed appellant’s action. Given our determination, we need not address the separate issue of whether appellants were owners under Minn.Stat. 117.025, subd. 3.

DECISION

Because appellants did not reject the EDA’s offer of benefits as required by MinmStat. § 117.232, subd. 2, the district court did not err in determining that it lacked subject matter jurisdiction of appellant’s action.

Affirmed.

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

      . Kopacek was also named as a respondent because he had an interest in the land; but appellants' attorney represented both appellants and Kopacek individually in this matter.

      . For the purposes of this case, we need not determine whether there is a difference between "moving costs” under Minn.Stat. § 117.232, subd. 2, and "relocation benefits” under the Minnesota Uniform Relocation Act, MinnStat. §§ 117.52-117.56 (2004).

      . A valid waiver requires the owner to sign a waiver specifically describing the type and amounts of relocation assistance, services, payments, and benefits for which he or she is eligible; separately listing those being waived; and a statement that the agreement was voluntary and not made under the threat of eminent domain. Minn.Stat. § 117.521, subd. 1(b); see also In re Wren, 699 N.W.2d 758, 765 (Minn.2005).


author: MINGE, Judge.

text:
    STATE of Minnesota, ex rel. John William HENDERSON, petitioner, Appellant, v. Joan FABIAN, Commissioner of Minnesota Department of Corrections, Respondent.
    No. A06-439.
    Court of Appeals of Minnesota.
    June 6, 2006.

      Bradford Colbert, Charity Delich (certified student attorney), St. Paul, MN, for appellant.
    Eric L. Lipman, St. Paul, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

This appeal is from an order denying appellant John Henderson’s petition for a writ of habeas corpus, which challenged the respondent Commissioner of Corrections’ decision extending his incarceration based on his refusal to participate in a mandated, in-prison sex-offender treatment program. Because we conclude that appellant no longer had a Fifth Amendment privilege threatened by the participation required in the program, we affirm.

FACTS

Appellant was sentenced in February 2002 to 91 months in prison for first-degree criminal-sexual conduct. Appellant’s conviction was affirmed on direct appeal on May 6, 2003. State v. Henderson, No. C5-02-780 (Minn.App. May 6, 2003), review denied (Minn. July 15, 2003). On November 5, 2003, almost four months after the supreme court denied further review, appellant was to be evaluated for participation in the prison’s required sex-offender treatment program (SOTP). Appellant refused to enter the program.

Appellant later filed a notice indicating that he was claiming a Fifth Amendment privilege not to discuss his offense in the SOTP. It is not clear that he gave this reason on November 5. The Department of Corrections (DOC) scheduled a disciplinary hearing. After appellant received one continuance of the hearing in order to prepare his defense, he pleaded guilty “with an explanation.” The explanation apparently was that appellant had been diagnosed with cancer and was not ready to proceed. The DOC imposed a sanction of 45 additional days of incarceration for appellant’s refusal to participate in the SOTP. In December 2003, the DOC denied appellant’s administrative appeal.

In 2004, appellant filed a petition for a writ of habeas corpus in the United States District Court, District of Minnesota. The petition raised the same issues that had been the subject of appellant’s earlier state court appeal. By order, the U.S. District Court denied the petition, dismissed the case with prejudice, and refused to certify the case for appeal under 25 U.S.C. § 2253(c)(1)(B) (2000). Henderson v. State, No. 03-6507 (D.Minn. July 25, 2005). On December 29, 2005, the Eighth Circuit Court of Appeals dismissed appellant’s appeal. Henderson v. State, No. 05-3453 (8th Cir. Dec. 29, 2005).

On October 19, 2005, appellant filed this state court habeas corpus petition challenging the DOC’s decision to sanction him for refusal to participate in the SOTP. Appellant argued that the penalty imposed on him violated his Fifth Amendment privilege against self-incrimination. The district court denied the petition without holding an evidentiary hearing. The district court followed the supreme court’s decision in State ex rel. Morrow v. LaFleur, 590 N.W.2d 787 (Minn.1999), which held there was no Fifth Amendment violation under similar facts. See id. at 792-96. The district court made a factual finding that “[i]n order to be admitted to the [SOTP], an offender is required to admit and discuss the specific acts that resulted in a commitment to the Department of Corrections.” This appeal follows.

ISSUES

1. Does the extended-incarceration sanction imposed on appellant constitute “compulsion” for purposes of the Fifth Amendment?
2. Did appellant’s Fifth Amendment privilege remain in effect after his direct appeal was decided?

ANALYSIS

The district court’s findings in ruling on a petition for habeas corpus are entitled to great weight and will be upheld if reasonably supported by the evidence. Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. Nov. 17, 1998); State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn.App.1991). Questions of law, however, are reviewed de novo. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn.App.1993), review denied (Minn. Mar. 11, 1993).

1. “Compulsion” Under the Fifth Amendment

Appellant argues that the extension of his incarceration time, which was the penalty imposed for his refusal to participate in the SOTP, constituted “compulsion” for purposes of the Fifth Amendment privilege against self-incrimination. As the district court found, appellant would have been required to discuss his offense of conviction in the SOTP.

Respondent cites a 1999 decision of the supreme court rejecting a similar argument. See State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 792-96 (Minn.1999). In a recently published opinion, however, this court concluded that the supreme court’s holding in Morrow that extending an inmate’s incarceration time by 90 days did not constitute “compulsion” for Fifth Amendment purposes was effectively overruled by McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). Johnson v. Fabian, 711 N.W.2d 540, 543-44 (Minn.App.2006), review granted (Minn. May 24, 2006). The Johnson court also held that an inmate, whose direct appeal from conviction was still pending, continued to have a Fifth Amendment privilege not to be compelled to answer questions about his offense in a mandated prison treatment program. Id. at 542, 545.

Respondent argues that McKune does not affect the Morrow court’s analysis of the Fifth Amendment element of “compulsion.” See generally U.S. Const, amend. V (providing that no person shall be “compelled” to be a witness against himself in a criminal case); Morrow, 590 N.W.2d at 792 (noting that “[cjompulsion is the touchstone of the Fifth Amendment” (quotation omitted)). But this court held in Johnson that because there was no majority in McKune, Justice O’Connor’s concurrence advanced the narrowest rationale in support of the result and constituted the “holding” of McKune. Johnson, 711 N.W.2d at 543. Justice O’Connor’s concurrence indicated that an extension of the period of incarceration would easily meet the established standard for “compulsion” under the Fifth Amendment. Id. (citing McKune, 536 U.S. at 52, 122 S.Ct. at 2034 (O’Connor, J., concurring)). Although respondent criticizes the holding of Johnson, this court accepts that opinion as prece-dential authority. See generally State v. Victorsen, 627 N.W.2d 655, 662 n. 2 (Minn.App.2001) (noting that stare decisis dictates that precedent should not be lightly overturned).

2. Duration of Fifth Amendment Privilege

Appellant argues that he retained a Fifth Amendment privilege not to discuss his offense in November 2003, when his direct appeal had already been decided, because he subsequently filed a federal petition for habeas corpus relief and was contemplating a state postconviction petition.

In Johnson, the inmate’s direct appeal from conviction was still pending. 711 N.W.2d at 542. This court in Johnson ruled that the inmate’s Fifth Amendment privilege still applied, citing United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991), in a supporting footnote. 711 N.W.2d at 542 n. 1; see also Martin v. Flanagan, 259 Conn. 487, 789 A.2d 979, 984-85 n. 4 (2002) (listing state and federal cases in support of proposition that the privilege may be invoked by a witness “whose conviction has not been finalized on direct appeal”). But here, appellant’s direct appeal had been decided and the Minnesota Supreme Court had denied further review almost four months before appellant’s evaluation for SOTP treatment.

The United States Supreme Court has tangentially addressed the problems of defining when the privilege against self-incrimination ends. See Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 1314, 143 L.Ed.2d 424 (1999). In Mitchell, the Court rejected the claim that the privilege did not exist in the context of sentencing and stated that it only ends when there can be “no further incrimination” or “[i]f no adverse consequences can be visited upon the convicted person by reason of further testimony.” Id. at 325-26, 119 S.Ct. at 1313-14. In weighing the problem in the context of the case before it, the Court pointed out that the privilege ceases when “the sentence has been fixed and the judgment of conviction has become final.” Id. at 326, 119 S.Ct. at 1314. The Eighth Circuit Court of Appeals in Duchi stated that

[t]he better rule, however, appears to be that the Fifth Amendment right not to testify concerning transactions for which one has been convicted continues until the time for appeal has expired or until the conviction has been affirmed on appeal.

944 F.2d at 394.

Both Mitchell and Duchi appear to refer to the direct appeal. Neither addresses the multiple avenues of collateral review and the appellate review they may entail. Extending the Mitchell and Duchi holdings to collateral attacks such as a federal habeas petition or a state postconviction petition would extend almost indefinitely the Fifth Amendment privilege. Neither case requires that result. At the same time, cases may arise in which a fundamental injustice occurs that only can be addressed in a collateral review. To say the Fifth Amendment should never survive to collateral proceedings is to ignore such a possibility.

Appellant cites Thomas v. United States, 368 F.2d 941 (5th Cir.1966), in support of his claim that his Fifth Amendment privilege remained even though his conviction had been affirmed on direct appeal. In Thomas, the court noted that the defendant had open to him “the processes of motion for new trial ..., appeal, petition for certiorari, and collateral attack.” Id. at 945. But in Thomas the defendant had yet to be sentenced when the court invited his confession. Id. at 942. Any suggestion in Thomas, therefore, that the Fifth Amendment privilege would survive until all means of collateral attack were exhausted would be dictum.

We note that a conviction is considered final, for purposes of the retroactive application of new rules, when the time to file a direct appeal has expired or the direct appeal has been decided and the time to petition for a writ of certiorari has expired. State v. Petschl, 692 N.W.2d 463, 470 (Minn.App.2004), review denied (Minn. Jan. 20, 2005).- In the case before us, appellant had a jury trial, was convicted, appealed to this court, and unsuccessfully sought review by the Minnesota Supreme Court. This court considered the merits of his claims. Appellant’s conviction, therefore, became final in October 2003, when his time to file a petition for a writ of certiorari expired. See Sup.Ct. R. 13.1.

In 2004, appellant petitioned for habeas corpus in the U.S. district court. All of the issues raised in the federal habeas corpus action had been raised in the state court proceeding and the state court appeal. There is nothing in the record to indicate that the state court proceedings failed to adequately address appellant’s rights or that the postconviction proceeding was necessary to correct a manifest injustice. In fact, the U.S. district court actually refused to certify appealability of appellant’s petition for habeas corpus relief. Although the very act of bringing the federal habeas corpus proceeding may have been an assertion of a manifest injustice, the bald assertion of claims in an appeal is attenuated. Indeed, it is too attenuated to overcome the state’s strong interest in treating sex offenders and having finality in the criminal process so that inmates can be required to participate in the designated treatment program.

In the end, we must balance the interests of the state against the rights of criminal defendants. An appropriate balance that limits the duration of the Fifth Amendment privilege was observed in this case. Appellant refused to participate in the SOTP in July 2002, when his direct appeal was still pending. The DOC imposed no sanctions on appellant at the time of that refusal. Appellant was next interviewed for the SOTP in November 2003, after his direct appeal had been decided. By postponing the necessity that appellant make a decision about the SOTP, DOC honored appellant’s Fifth Amendment privilege. This delay gave appellant a fair and reasonable opportunity to pursue his legal rights on appeal and when not successful, absent a showing of manifest injustice, set a time certain when he would be required to participate in treatment. This balance properly considered the competing interests. Under appellant’s position, the Fifth Amendment privilege would virtually never end because an inmate would always have avenues of collateral challenge available to him. Treatment could be avoided indefinitely.

Based on the record before us, we conclude that appellant no longer has a Fifth Amendment right to remain silent about the events that lead to his conviction.

DECISION

We agree with appellant that even a modest extension of his incarceration constitutes compulsion for purposes of the Fifth Amendment. However, absent a showing of manifest injustice, once appellant’s direct review had concluded, he no longer enjoyed a Fifth Amendment privilege to refuse to participate in the sex-offender treatment program, in which he could be required to discuss his offense. Accordingly, we conclude that the district court properly denied the petition for a writ of habeas corpus.

Affirmed.


author: YANDE WALLE, Chief Justice.

text:
    2006 ND 116
    CITY OF GRAND FORKS, North Dakota a North Dakota Municipal Corporation, Plaintiff and Appellee v. HENDON/DDRC/BP, LLC a/k/a Hendon/DDR/BP, LLC, Defendant and Appellant Metropolitan Life Insurance Company, Office Depot, Inc., and Southtrust Bank, and any other persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the Complaint, Defendants.
    No. 20050197.
    Supreme Court of North Dakota.
    June 1, 2006.

      Howard D. Swanson (argued), City Attorney, and John Alan Warcup, Assistant City Attorney, Grand Forks, N.D., for plaintiff and appellee.
    Patrick W. Fisher, Fisher, Olson & Jun-taren, Ltd., Grand Forks, N.D., for defendant and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] Hendon/DDRC/BP, LLC (“Hen-don”) appealed from a district court judgment entered upon a jury verdict awarding Hendon damages for condemnation of real property. We affirm, concluding that the jury’s verdict was supported by the evidence.

I

[¶ 2] Hendon owns a parcel of commercial property, including a two-tenant retail building, near Columbia Mall in Grand Forks. In 1999, Hendon leased part of the building to Office Depot for a period of ten years. The lease included a provision allowing Office Depot to terminate the lease if any of the property within a designated “no change area” was taken by condemnation. Office Depot closed its store at the site on January 3, 2002, but continued to pay rent.

[¶ 3] In 2003, the City of Grand Forks commenced a quick take eminent domain proceeding to condemn a narrow strip of Hendon’s property for street and utility improvements. At the time of the taking, the strip of land was utilized as an existing drainage ditch. The City’s condemnation of the land did not physically affect the building or parking lot, did not affect access to Hendon’s property, and did not divide Hendon’s property into two or more parcels. Upon commencing the condemnation action, the City deposited $76,500, representing the City’s appraised fair market value of the property taken, with the Clerk of District Court.

[¶ 4] The entire commercial retail building on the property, including the portion leased by Office Depot, was vacant at all times relevant to the taking. Upon learning of the condemnation action, Office Depot notified Hendon that it was exercising its option to terminate the lease effective on the date of the taking. In its answer to the condemnation complaint, Hendon alleged it was entitled to severance damages from the City for the diminution in value of the entire property caused by the loss of the Office Depot lease.

[¶ 5] Hendon and the City stipulated that the value of the property actually taken was $76,500, and the issue of severance damages was tried to a jury. The City presented testimony of two expert witnesses, who testified that Hendon had suffered no severance damages due to the loss of the lease. Hendon’s expert witness testified that Hendon had suffered severance damages of $613,500, representing the diminution in value of the entire property caused by the loss of the lease. The jury found thát Hendon had suffered severance damages of $61,350.

[¶ 6] Hendon moved for a new trial, alleging that the jury’s verdict was insufficient and not supported by the evidence. The trial court determined that the jury’s finding of severance damages of $61,350 was within the range of testimony of the expert witnesses and denied the motion. Judgment on the jury verdict was entered on April 29, 2005.

II

[¶ 7] The sole issue raised on appeal is whether the jury’s determination of the amount of severance damages is supported by the evidence.

A

[¶ 8] We uphold special verdicts whenever possible and will set aside a jury’s special verdict only if it is perverse and clearly contrary to the evidence. E.g., Moen v. Thomas, 2004 ND 132, ¶ 11, 682 N.W.2d 738; Rodenburg v. Fargo-Moorhead Young Men’s Christian Ass’n, 2001 ND 139, ¶ 7, 632 N.W.2d 407; Phillips v. Dickinson Mgmt., Inc., 1998 ND 123, ¶ 6, 580 N.W.2d 148. In reviewing a jury’s findings of fact, we view the evidence in the light most favorable to the verdict and determine only if substantial evidence supports it. Hamilton v. Oppen, 2002 ND 185, ¶ 25, 653 N.W.2d 678; Rodenburg, at ¶ 7. The credibility of expert witnesses and the weight to be accorded their testimony are matters to be determined by the jury. Barnes v. Mitzel Builders, Inc., 526 N.W.2d 244, 246 (N.D.1995). When the sufficiency of the evidence to support a jury verdict is challenged, we will not invade the province of the jury to weigh the evidence or to assess the credibility of witnesses. Id.; Erickson v. Schwan, 453 N.W.2d 765, 770 (N.D.1990). We will sustain an award of damages if it is within the range of the evidence presented to the trier of fact. E.g., Landers v. Biwer, 2006 ND 109, ¶ 14.

B

[¶ 9] The owner of property taken by eminent domain is entitled to compensation for the value of the property taken, plus any damages to the remaining property caused by its severance from the property taken. N.D.C.C. § 32-15-22; Dutchuk v. Board of County Comm’rs, 429 N.W.2d 21, 23 (N.D.Ct.App.1988). Assessment of severance damages is governed by N.D.C.C. § 32-15-22(2):

The jury, or court, or referee, if a jury is waived, must hear such legal testimony as may be offered by any of the parties to the proceedings and thereupon must ascertain and assess:
2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff.

[¶ 10] The determination of damages in a condemnation action is a question of fact to be decided by the trier of fact. City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365, 374 (N.D.1996); City of Devils Lake v. Davis, 480 N.W.2d 720, 725 (N.D.1992). Damage to the property not taken is not presumed, and the owner has the burden of proof to show that the condemnation has reduced the value of the property not taken. Davis, at 725; Dutchuk, 429 N.W.2d at 23. This Court summarized the owner’s burden of demonstrating severance damages in City of Hazelton v. Daugherty, 275 N.W.2d 624, 628-29 (N.D.1979) (citations omitted):

There is no sole measure for determining severance damages as such damages are not susceptible to precise proof and can only be approximately shown by the opinion of witnesses having the requisite information. The generally-accepted best measure of severance damages, however, is the diminution or depreciation of the market value of the property not condemned, which is the difference in the market value of the property not taken before and after the severance from the part taken. Damage to the remainder will not be presumed, and if the landowner fails to show by competent evidence that the value of the remainder has been diminished by the taking, compensation will be limited to the value of the land actually taken, as there cannot be any damage where there is no pecuniary loss. If the property owner wants more than the evidence of condemnor indicates the fair market value to be, he must introduce evidence of value more convincing to the jury than that offered by the condemnor and it is always open to the condemnor to show that special damages will not occur.

It is well-settled in this state that a determination of the amount of damages in a condemnation action will be upheld on appeal if it is within the range of the evidence presented to the trier of fact. E.g., Leevers, 552 N.W.2d at 375; Davis, 480 N.W.2d at 725; Daugherty, 275 N.W.2d at 627; State v. Livingston, 270 N.W.2d 556, 557 (N.D.1978); Northern States Power Co. v. Effertz, 94 N.W.2d 288, 292 (N.D.1958). In this case, Hendon’s expert witness testified that Hendon suffered $613,500 in severance damages. The City’s experts testified that Hendon suffered no severance damages. The jury’s award fell between zero and $613,500, the range of the evidence of severance damages presented at trial.

[¶ 12] Hendon argues that there was no “range” of evidence at all in this case because the City’s experts appraised the property at the time the City initially commenced the quick take proceedings, and did not take into consideration Hendon’s loss of the Office Depot lease and the effect of loss of that lease on the value of the remaining property. Hendon therefore contends that its appraiser’s testimony that the value of Hendon’s remaining property had been reduced by $613,500 as a result of the taking was the only appropriate evidence on severance damages before the jury. Hendon does not claim that it objected during the trial to the testimony of the City’s expert witnesses, nor does it argue that the trial court erred in admitting the City’s experts’ testimony on severance damages. Hendon’s argument goes solely to the evidentiary weight to be accorded the experts’ testimony by the jury. The credibility of expert witnesses and the weight to be accorded their testimony are matters to be determined by the jury, and we will not on appeal reweigh the evidence or reassess the credibility of witnesses. Barnes, 526 N.W.2d at 246; Erickson, 453 N.W.2d at 770.

Furthermore, the City’s expert witnesses clarified at trial that the loss of the Office Depot lease did not alter their opinions of the market value of the property and their opinions that Hendon had suffered no severance damages as a result of the taking. In Davis, 480 N.W.2d at 724, this Court noted that an expert appraiser’s testimony at trial that additional facts, which he learned of after completing his written appraisal, did not alter his original opinion of the value of the property “effectively updated [his] written appraisal.” On this record, we conclude that the jury’s determination of severance damages fell within the range of the evidence presented at trial, and we will not disturb the jury’s finding on appeal.

Ill

We conclude that the jury verdict is supported by substantial evidence. The judgment is affirmed.

[¶ 15JCAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.