author: MEYER, Justice.

text:
    Juan P. GONZALES, Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. A05-815.
    Supreme Court of Minnesota.
    Dec. 22, 2005.
    Juan P. Gonzales, Minneapolis, MN, pro se relator.
    Mike Hatch, Attorney General, Craig R. Anderson, Asst. Attorney General, St. Paul, MN, for respondent.
   OPINION

MEYER, Justice.

This case arises out of a decision by the Minnesota Tax Court affirming a May 5, 2004, order by respondent Minnesota Commissioner of Revenue (Commissioner) assessing $13,985.75 in income tax, interest, and penalties for tax years 1996 through 2002 against relator Juan P. Gonzales. The tax court determined that Gonzales’s wages for the years in question constituted income for purposes of Minnesota income tax and that Minnesota’s imposition of an income tax on those wages did not violate Gonzales’s constitutional rights. We affirm.

Gonzales resided in Minnesota from 1996 through 2002. During those years, Gonzales received compensation in the form of wages from his employer, Henne-pin County, but did not file any Minnesota state income tax returns. Consequently, the Commissioner filed a return for Gonzales pursuant to Minn.Stat. § 289A.35 (2004). On May 5, 2004, the Commissioner issued a notice of determination, or assessment order, under Minn.Stat. § 289A.37 (2004) and Minn.Stat. § 289A.65, subd. 8 (2004), finding Gonzales liable for $13,985.75 in income tax, interest, and penalties. Gonzales appealed the Commissioner’s assessment order to the Minnesota Tax Court.

At the tax court, Gonzales offered several theories to support his central contention — that he is not legally obligated to pay Minnesota income tax on wages earned in Minnesota. Gonzales argued that wages and salaries do not constitute taxable income for purposes of Minnesota’s income tax and that no statutory authority exists that renders him liable for Minnesota income tax on his wages. Further, Gonzales contended that any liability for Minnesota income tax requires that he first be liable for federal income tax. Gonzales claimed that he is not liable for federal income tax because the federal income tax program is unconstitutional, due to the improper ratification of the Sixteenth Amendment to the United States Constitution, which authorizes the imposition of a federal income tax. Gonzales also argued that the assessment process employed in his case violated his constitutional right to procedural due process by not providing sufficient review of his claims. In addition, Gonzales challenged the sufficiency of the evidence on which the Commissioner’s assessment was based. Finally, Gonzales argued that the Commissioner cannot force Gonzales to self-assess a tax debt because doing so would require Gonzales to commit perjury.

The tax court affirmed the Commissioner’s assessment order, rejecting all of Gonzales’s arguments. Gonzales v. Comm’r of Revenue, No. 7698-R, 2005 WL 626671 (Minn. T.C. Mar. 14, 2005). The court concluded that wages and salaries are income for purposes of Minnesota income tax. Id. at *1. The court noted that Minnesota’s definition of income relies on the definition of gross income found in section 61 of the Internal Revenue Code, which states that gross income includes compensation for services. Id. at *1-2. The tax court also rejected Gonzales’s constitutional challenges to the Minnesota income tax, noting that “[fjederal [cjourts have universally upheld the constitutionality of tax assessment and collection schemes such as those in Minnesota.” Id. at *2. The court interpreted Gonzales’s perjury argument as a Fifth Amendment self-incrimination claim and rejected that claim, noting that the United States Supreme Court has explicitly held that the privilege against self-incrimination does not permit a taxpayer to refuse to file a tax return. Id. at ⅜3 (citing Garner v. United States, 424 U.S. 648, 650, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976)). Gonzales appealed the tax court’s decision to this court, and we granted a writ of certiorari. On appeal, Gonzales raises the same arguments he propounded in the tax court.

We review tax court decisions only to determine whether the tax court lacked jurisdiction, whether the tax court’s decision is supported by the evidence and is in conformity with the law, and whether the tax court committed any other error of law. Minn.Stat. § 271.10 (2004); Bond v. Comm’r of Revenue, 691 N.W.2d 831, 835 (Minn.2005). Gonzales challenges only the tax court’s legal analysis, not its findings of fact. We review the tax courts legal conclusions de novo. Stelzner v. Comm’r of Revenue, 621 N.W.2d 736, 740 (Minn. 2001). Having reviewed the record and considered the arguments, we conclude that Gonzales’s arguments lack merit. We therefore affirm the decision of the tax court.

On a procedural note, we observe that the constitutional issues in this case were improperly raised and considered by the tax court. In Minnesota, the tax court does not have original jurisdiction to hear constitutional matters. Great Lakes Gas Transmission L.P. v. Comm’r of Revenue, 638 N.W.2d 435, 437 n. 5 (Minn.2002); Erie Mining Co. v. Comm’r of Revenue, 343 N.W.2d 261, 264 (Minn.1984). The tax court may obtain jurisdiction over constitutional issues only by transferring the constitutional issues to the district court and having the district court transfer them back to the tax court. Erie Mining Co., 343 N.W.2d at 264. The Erie transfer procedure should have been performed in this case because Gonzales raised several constitutional issues in the tax court. Although the tax court lacked jurisdiction to hear Gonzales’s constitutional claims because the Erie transfer procedure was not followed, we have jurisdiction to consider the constitutional issues and for the reasons stated in the tax court’s opinion we conclude they are without merit. See Kuiters v. County of Freeborn, 430 N.W.2d 461, 464 (Minn.1988) (considering constitutional issues on appeal from the tax court despite the tax court’s lack of jurisdiction); see also Minn. Const, art. VI, § 2 (conferring upon this court “appellate jurisdiction in all cases”). In future cases, the tax court should endeavor to follow the dictates of Erie.

Affirmed.

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

      . Recodified to Minn.Stat. § 270C.35, subd. 8 by Act of June 2, 2005, ch. 151, art. 1, § 41, 2005 Minn. Laws 1379.


source: Caselaw Access Project

author: /s/ Helen H. Meyer Associate Justice

license: Public Domain

text:
    Kleber RAMOS, Respondent, v. TIEFHOCH CONTRACTING, INC., Uninsured, Relator, and Hennepin Faculty Associates, Intervenor, and State Treasurer, Custodian of the Special Compensation Fund.
    No. A05-1842.
    Supreme Court of Minnesota.
    Dec. 22, 2005.
    Rehearing Denied Jan. 26, 2006.
    Lawrence C. Miller, Minneapolis, MN, for relator.
    James E. Lindell, Lindell & Lavoie, LLP, Minneapolis, MN, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 19, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ Helen H. Meyer Associate Justice


author: HUDSON, Judge.

text:
    Lori KLUBALL, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
    No. A05-436.
    Court of Appeals of Minnesota.
    Dec. 20, 2005.

      Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN, and Gary L. Manka, Katz, Manka, Teplinsky, Due & Sobol, Ltd., Minneapolis, MN, for appellant.
    Michael F. Barg, Taylor & Lance, Eden Prairie, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; KALITOWSKI, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

On appeal from-summary judgment in which the district court ruled in favor of the respondent underinsured motorist (UIM) insurer, appellant argues the district court erred in concluding that: (a) respondent’s “timely notice” clause was enforceable under Malmin, when respondent failed to demonstrate prejudice from its lack of ability to intervene; and (b) appellant’s Schmidt notice was fatally defective when appellant put forth sufficient evidence to create a genuine issue of material fact precluding summary judgment on the issue of prejudice. We affirm.

FACTS'

Appellant Lori Kluball’s claim for UIM coverage arises from a two-vehicle accident in Eagan, Minnesota, on December 29, 1994. Denys Craven (also referred to as tortfeasor) struck the driver’s side of appellant’s vehicle at an intersection. Appellant brought a lawsuit against Craven on or before December 29, 2000, alleging that Craven’s negligence was the direct cause of the accident. Appellant claimed she suffered injuries to her neck, shoulders, and back.

At the time of the accident, Craven’s automobile liability insurance policy was with MetLife Auto & Home (MetLife). Craven’s liability coverage was $50,000. On June 25, 2003, appellant and Craven executed an agreement for voluntary binding arbitration.

Appellant had an automobile policy with respondent American Family Mutual Insurance Group which included UIM coverage of $100,000/$300,000. The insuring agreement stated in part:

You must notify us of any suit brought to determine legal liability or damages. If any lawsuit is brought to determine liability or damages, the owner or operator of the underinsured motor vehicle must be made a defendant and we must be notified of the lawsuit at the time it is commenced. We are not bound by any resulting judgment where we have not received timely notice of the commencement of the lawsuit.

Appellant did not notify respondent of the claim against Craven for a number of years. On September 11, 2003, appellant’s attorney sent a letter to respondent notifying respondent that appellant had commenced a lawsuit against Craven. The letter purported to be notification of commencement of suit as required by Malmin v. Minn. Mut. Fire & Cas. Co., 552 N.W.2d 723 (Minn.1996), stating that respondent would be responsible for damages in its capacity as appellant’s UIM carrier and advising that “there is a binding arbitration in front of a single arbitrator scheduled for September 16, 2003.” The letter provided no specific information about the location of the arbitration, the identity of the arbitrator, or the liability limits on Craven’s insurance policy with MetLife.

Appellant and Craven resolved their lawsuit in a binding arbitration on September 16, 2003. One week after the hearing, on September 23, 2003, the arbitrator found appellant’s damages to be roughly $120,000 and awarded that amount to appellant.

On October 3, 2003, appellant’s attorney again wrote to respondent informing respondent that Craven’s liability insurance was capped at $50,000 and that appellant had agreed to a binding high/low arbitration. Referring to his letter of September 11, 2003, the attorney stated that he had previously provided Malmin notice of the pending suit. He enclosed a copy of the arbitration award and made a demand for payment of the award that exceeded Craven’s liability coverage.

Pursuant to the arbitration agreement and the arbitrator’s award, appellant executed a complete release and satisfaction of award on October 15, 2003. Following execution of the release, appellant’s attorney wrote another letter to respondent on October 23, 2003. In that letter, he characterized MetLife’s payment of Craven’s $50,000 policy limit as a “settlement” and purported to give notice of a tentative settlement agreement pursuant to Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983). He also advised that respondent had 30 days in which to substitute its draft for the draft of MetLife. Appellant’s attorney concluded by stating, “Assuming I hear nothing, the appropriate releases will be executed, forwarded and we will then turn our attention to collecting the arbitration award pursuant to the underinsured motorist endorsement.”

Respondent declined appellant’s request for UIM benefits by letter dated November 3, 2003. Appellant commenced a suit in contract against respondent for the remainder of the arbitration award. Respondent moved for summary judgment. Appellant filed a cross motion for summary judgment. The district court granted respondent’s motion for summary judgment and denied appellant’s motion. The district court did not determine if appellant provided notice under Malmin or Schmidt, reasoning that appellant failed to provide sufficient notice regardless of how the award is ultimately characterized. The court administrator entered judgment on January 13, 2005. This appeal follows.

ISSUES

I. Did the district court err in concluding that appellant’s claim was barred under Malmin, when respondent failed to demonstrate that it was prejudiced by the insufficient notice?

II. Did the district court err in granting summary judgment under Schmidt, when appellant introduced sufficient evidence to rebut the presumption of prejudice and create a genuine issue of material fact?

ANALYSIS

On an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact, and. (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). There is no genuine issue of material fact if “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted). The existence of a genuine issue of material fact must be established by substantial evidence. Id. at 69-70. On appeal, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Both parties agree that this appeal presents primarily legal questions to be reviewed de novo. Appellant argues, however, that there is a genuine issue of material fact regarding whether she rebutted a presumption of prejudice. Whether a presumption has been rebutted is generally a question of fact. See, e.g., Feges v. Perkins Rests., Inc., 483 N.W.2d 701, 711 (Minn.1992) (noting that whether an employee rebutted response offered by an employer for firing the employee presents a question of fact).

I

Appellant challenges the district court’s conclusion that appellant’s claim was barred under Malmin v. Minn. Mut. Fire & Cas. Co., 552 N.W.2d 723 (Minn.1996), arguing that respondent failed to demonstrate that it was prejudiced by the untimely notice.

Before an injured claimant can pursue a UIM-benefíts claim, she must first recover from the tortfeasor’s liability-insurance policy. Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855, 858 (Minn. 1993). She can do this either by (1) pursuing a tort claim to a conclusion in a district court action, or (2) settling the tort claim for “the best settlement.” Id. at 857. If the judgment or settlement exceeds the liability coverage limits, the insured can pursue UIM benefits. Id. n. 3. If the insured pursues the “best settlement” option, prior to settling any claims with the tortfeasor, she must provide her UIM carrier with a 30-day written notice of tentative settlement agreements in order to give the underinsurer an opportunity to protect its potential right of subrogation. Schmidt v. Clothier, 338 N.W.2d 256, 263 (Minn.1983).

Here, the district court did not determine whether appellant’s arbitration award constituted a settlement or a conclusion of a tort action in lieu of a jury verdict. Instead, the court concluded that appellant was prohibited from seeking UIM benefits under either characterization. If the arbitration award was characterized as the conclusion of a tort action, appellant’s claim failed because appellant failed to provide sufficient “timely notice” of commencement of suit as required by respondent’s policy. If the arbitration award constituted a “best settlement,” appellant failed to provide the requisite 30-day notice of appellant’s intention to settle.

We note that an insured must characterize an arbitration award as either a settlement or a conclusion of a tort action and may not rely on both characterizations when pursuing UIM benefits. But because the district court did not determine the appropriate characterization, and because appellant’s arguments fail under either characterization, we will address appellant’s arguments under both characterizations.

Assuming that appellant’s arbitration award was obtained in lieu of a jury verdict and the issue is appropriately examined under Malmin, appellant argues that (1) the “timely notice” provision of respondent’s UIM policy is void as against public policy, and (2) public policy supports binding respondent to the results of a good faith liability arbitration that was secured at arm’s length when respondent has not demonstrated prejudice.

In Malmin, the insured obtained a judgment against an underinsured motorist and sought UIM benefits from his insurer. 552 N.W.2d at 724. The insurer denied coverage because the insured had not complied with provisions in the policy that required both notice to the insurer of a potential UIM claim and the insurer’s written consent to sue the tortfeasor. Id. The supreme court held that the consent-to-sue clause was void and unenforceable under the No-Fault Act. Id. at 728. In a footnote, the supreme court noted that this holding did not invalidate the notification provision in the insurer’s policy:

[WJhile a “consent to sue” clause is invalid under the No-Fault Act, a provision within an insurance contract which requires the insured to notify his or her insurer of the commencement of a lawsuit against a tortfeasor within a limited period of time (ie., 60 days) after service of process comports with due process principles and does not raise the same concerns under the No-Fault Act. Such a provision would permit the insurer to consider the nature of the tort claim and the tortfeasor’s liability limits, and thereby determine whether to attempt to intervene in the litigation in order to protect its own financial interests.

Id. at 728 n. 4.

Appellant argues that “[b]y requiring written notice of suit commencement, [respondent] is essentially requiring that it ‘consent’ to the suit in order to be bound by its damages determination.” Appellant’s argument lacks merit. The Malmin court clearly distinguished between notification and consent clauses; the former are permissible, the latter are not.

Malmin does not fully address appellant’s second argument, however, that respondent failed to demonstrate that it was prejudiced by the lack of sufficient notification. According to appellant, respondent’s interests were adequately protected because MetLife employed qualified counsel whose interests were identical to respondent’s. “As a general rule, an insured’s breach of a policy provision ... will not lead to a forfeiture of insurance benefits absent a showing that the insurer has been prejudiced.” Hopkins by LaFontaine v. Empire Fire Marine Ins. Co., 474 N.W.2d 209, 213 (Minn.App.1991). Malmin accepts that an insurer' has a financial interest in an insured’s lawsuit against a tortfeasor, but there is no subsequent case law interpreting Malmin that places the burden of demonstrating prejudice on either party.

American Fam. Mut. Ins. Co. v. Baumann, 459 N.W.2d 923 (Minn.1990) is instructive in assigning the burden of demonstrating prejudice. In Baumann, the supreme court held that when an insured fails to give the required 30-day notice of his intent to settle with a tortfeasor pursuant to Schmidt, release of the tortfeasor following settlement creates a rebuttable presumption that the underinsurer has been prejudiced because the underinsurer lost the opportunity to preserve its potential right of subrogation. Id. at 927. Thus, the insured must demonstrate by a preponderance of the evidence that the tortfeasor was a poor prospect for subrogation. Id.; see also Elwood v. Horace Mann Ins. Co., 531 N.W.2d 512, 516 (Minn.App.1995).

As in Baumann, when an insured fails to provide notice of commencement of suit per Malmin, the underinsurer loses the opportunity to protect its financial interests by intervening. Accordingly, the burden is shifted to the insured to demonstrate by a preponderance of the evidence that either the underinsurer had sufficient opportunity to intervene despite the untimely notice, or the underinsurer’s financial interests were not prejudiced by the resulting judgment. Otherwise, the insured forfeits UIM benefits.

Here, there is no record evidence supporting appellant’s suggestion that respondent was not prejudiced by appellant’s untimely notice. Although MetLife may have qualified counsel, respondent’s financial interest is the amount of damages beyond the liability cap of the tortfeasor’s policy and, thus, MetLife’s counsel did not protect respondent’s financial interests. Appellant therefore failed to rebut the presumption of prejudice and there is a forfeiture of UIM benefits.

II

Assuming that appellant’s arbitration award constituted a “best settlement” and is appropriately analyzed under Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), appellant argues that she put forth sufficient evidence rebutting the presumption of prejudice to create a genuine issue of material fact precluding summary judgment. As noted above, the supreme court in Baumann held that, when the insured fails to provide the 30-day written notice of a pending settlement as required by Schmidt, release of the tortfeasor creates a rebuttable presumption that the underinsurer has been prejudiced by its inability to protect its subrogation rights. Baumann, 459 N.W.2d at 927. The burden of demonstrating by a preponderance of the evidence the absence of prejudice shall be borne by the insured. Id.

It is undisputed that appellant did not provide Schmidt notice until after appellant executed the release. Attached to appellant’s motion for summary judgment was an affidavit from her attorney stating that an “investigation conducted by your Affiant fails to disclose the availability of any meaningful assets of the tortfea-sor which would have been available to [respondent] to seek subrogation against.”

Appellant introduced no additional evidence of the tortfeasor’s financial worth.

The statement in appellant’s attorney’s affidavit alone does not create a genuine issue of material fact on the issue of prejudice. In opposing summary judgment, “general assertions” are not enough to create a genuine issue of material fact. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn.1995). Although Baumann did not clarify how much or what type of evidence is required to rebut the presumption of prejudice, this court examines the “financial status of the tortfeasor” including the “amount of assets held by the tortfeasor and the likelihood of recovery of those assets via subrogation.” Behrens v. Am. Fam. Mut. Ins. Co., 520 N.W.2d 763, 768 (Minn.App.1994), review denied (Minn. Oct. 14, 1994). In decisions by this court holding that an insured has fulfilled her burden of rebutting the presumption of prejudice, the insured introduced some evidence beyond an attorney’s assurance of the tortfeasor’s limited financial worth. See Becker v. State Farm Mut. Auto. Ins. Co., No. C6-99-288, 2000 WL 1015867 at *2 (Minn.App. July 25, 2000) (holding that an insured who introduced an Equifax report assessing the nature and extent of the tortfeasor’s assets and the testimony of an insurance adjustor who considered the tortfeasor a poor candidate for subrogation rebutted the presumption of prejudice), review denied (Minn. Oct. 17, 2000); Anderson v. Auto-Owners Ins. Go. ', No. C2-96-614, 1996 WL 495064 at *3 (Minn.App. Sept.3, 1996) (holding that an insured who introduced evidence of the tortfeasor’s assets and employment status created a genuine issue of material fact precluding summary judgment on the issue of prejudice), review denied (Minn. Oct. 29,1996).

Appellant failed to introduce any specific evidence of the tortfeasor’s financial worth to rebut the presumption of prejudice. Therefore, the district court did not err in granting respondent’s motion for summary judgment. Because we are affirming the district court’s judgment, we decline to address whether appellant’s arbitration agreement unambiguously evidenced appellant’s intent to be satisfied by the tort-feasor’s policy limits and not seek UIM benefits.

Finally, appellant moved to strike an affidavit from respondent’s appendix, referring to that affidavit as not properly before this court. The record on appeal consists of the papers filed in the district court, the exhibits, and the transcript of proceedings. Minn. R. Civ.App. P. 110.01. Respondent’s affidavit was prepared after summary judgment in this matter. We will not consider this document for the first time on appeal. Appellant’s motion to strike is granted.

DECISION

Because appellant did not present any evidence that respondent was not prejudiced by appellant’s untimely notice under Malmin, and because appellant failed to rebut the presumption that respondent was prejudiced by appellant’s insufficient notice under Schmidt, the district court did not err in granting respondent’s motion for summary judgment.

Affirmed; motion granted.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Yusumuzi Keke ZULU, Appellant.
    No. A04-2327.
    Court of Appeals of Minnesota.
    Dec. 27, 2005.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.
    Kassius O. Benson, Special Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Presiding Judge, STONEBURNER, Judge, and HUSPENI, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellant challenges his conviction of criminal sexual conduct in the first degree, arguing that the district court abused its discretion by admitting evidence prejudicial to appellant. Appellant also challenges the upward durational sentencing departure imposed by the district court, arguing that (1) his waiver of a jury determination of aggravating sentencing factors was not knowing, intelligent, and voluntary; (2) he did not waive his right to á jury determination of whether the alleged criminal conduct occurred after the effective date of amendments to Minn.Stat. § 609.342, subd. 2(b); and (3) the district court erred by using unproven and uncharged conduct to support the departure.

FACTS

K.Z., who was born on September 15, 1989, is appellant Vusumuzi Keke Quo Zulu’s daughter. Appellant was never married to KZ.’s mother, but K.Z. stayed with appellant for varying lengths of time at three different locations: the “Orange Apartment,” appellant’s parent’s home, and the “Northeast Apartment.” When she was 13 years old, K.Z. told her 17-year-old cousin, C.S., and her friend, A.U.B., that appellant had been sexually abusing her since she was eight or nine years old. In 2004, K.Z. told her mother, Lacecia Nalls, about the abuse. Nalls called appellant’s parents and the police. The police had K.Z. write down everything that had happened to her, and K.Z. was interviewed at Cornerhouse, a nonprofit child abuse evaluation center, by Sara Bla-hauvietz. Based on the Cornerhouse interview, a search warrant was obtained for appellant’s residence. K.Z.’s journals and evidence of semen on the carpet in a location described by K.Z. were found in appellant’s residence. DNA testing determined that the semen was appellant’s.

Appellant was charged with criminal sexual conduct in the first and third degree. Appellant denied sexually abusing K.Z. and asserted that she is fabricating the allegations due to jealousy over his girlfriend whom he married prior to trial (wife). Prior to trial, appellant moved to exclude the admission of the Cornerhouse interview into evidence as hearsay. The state argued that the interview was admissible as a prior consistent statement, noting that KZ.’s credibility was at issue and that KZ. and the interviewer would testify at trial and be available for cross-examination. The motion was denied.

After K.Z. testified at trial, appellant renewed the motion to exclude the statement arguing, in part, that six major inconsistencies in the interview prevented the statement from being a prior “consistent” statement. After reviewing a transcript of the interview, the district court concluded that the statement was “substantially consistent” with KZ.’s trial testimony, and therefore admissible.

During jury deliberations the jury was allowed, on its request, to view a portion of the interview videotape “where [K.Z.] is describing the room and where the ejacu-lant is on the carpet.” The jury found appellant guilty as charged.

At a presentence hearing, appellant was questioned by his attorney about his understanding of his rights under Blakely “to have the jury decide beyond a reasonable doubt whether certain potentially aggravating factors have been met in this case.” Appellant stated that he understood and further understood that even if the jury found the existence of aggravating factors, the district court would be responsible for determining the sentence. Appellant was asked by counsel: “And after discussions with me, is it your decision to waive that right to have a jury determine imposition?” Appellant responded: ‘Tes, it is.”

At the sentencing hearing, the state noted that the presumptive sentence for criminal sexual conduct in thé first degree increased from 86 months to 144 months effective August 1, 2000, and asked the district court for a double durational departure to 288 months. Appellant argued against an upward departure and requested a downward dispositional departure, arguing that he is amenable to probation. The district court concluded that the state had proved beyond a reasonable doubt that (1) appellant committed criminal sexual conduct in the first degree both before and after August 2000; (2) appellant had committed multiple acts and multiple types of criminal sexual conduct; (3) appellant had abused a position of authority; and (4) appellant had invaded KZ.’s zone of privacy. Appellant objected to a departure based on “any other alleged conduct,” and the court replied: “That did not enter into my decision making.” The district court sentenced appellant to 195 months, and this appeal followed.

ISSUES

I. Did the district court abuse its discretion when it admitted the Corner-house interview as a prior consistent statement?

II. Was appellant’s Sixth Amendment right to trial by jury violated because he did not waive rights in addition to the right to have a jury determine the existence of aggravating factors or because sentencing was based on a judicial finding that appellant committed criminal sexual conduct in the first degree after August 1, 2000?

ANALYSIS

I. Admission of Cornerhouse statement

Appellant argues that the district court abused its discretion by failing to redact K.Z.’s Cornerhouse interview to eliminate statements that were inconsistent with her trial testimony, including statements that were in the interview but not testified to at trial. “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn.2003) (citations omitted). Even if the district court erred in admitting evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994).

An out-of-court statement is not hearsay, and is admissible as substantive evidence if (1) the declarant testifies at the trial or hearing; (2) the declarant is subject to cross-examination concerning the statement; (3) the statement is consistent with the declarant’s testimony; and (4) the statement is helpful to the trier of fact in evaluating the declarant’s credibility as a witness. Minn. R. Evid. 801(d)(1)(B); Minn. R. Evid. 801 1989 comm. cmt.

“[W]hen a witness’ prior statement contains assertions about events that have not been described by the witness in trial testimony, those assertions are not helpful in supporting the credibility of the witness and are not admissible under this rule.” Minn. R. Evid. 801 1989 comm. cmt.

“[B]efore the statement can be admitted, the witness’ credibility must have been challenged, and the statement must bolster the witness’ credibility with respect to that aspect of the witness’ credibility that was challenged.” State v. Nunn, 561 N.W.2d 902, 909 (Minn.1997). “[A] prior consistent statement might bolster credibility by showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory.” State v. Bakken, 604 N.W.2d 106, 109 (Minn.App.2000), review denied (Minn. Feb. 24, 2000). The trial testimony and the prior statement need not be identical to be consistent, id., and admission of a videotaped statement that is “reasonably consistent” with the trial testimony is not reversible error, In re Welfare of K.A.S., 585 N.W.2d 71, 76 (Minn.App.1998).

In this case, appellant alleged six specific inconsistencies between KZ.’s trial testimony and the videotaped interview. The district court did not specifically address any of the alleged inconsistencies but found the interview “substantially consistent” with K.Z.’s trial testimony. We agree. The first alleged major inconsistency concerned who was present when K.Z. reported the abuse to her mother. At trial, K.Z. and her mother testified that K.Z. first mentioned the sexual abuse at a family meeting, whereupon KZ.’s mother took her to the bedroom to continue the discussion in private. In the Cornerhouse interview, KZ. stated that the other family members were present when she told her mother about the abuse. The district court did not abuse its discretion by concluding that this inconsistency was not substantial.

Appellant next points to a statement that KZ. made at Cornerhouse, but did not testify to at trial, that wife found pages from KZ.’s journal describing the abuse, that appellant told wife that KZ. wrote the entry to get attention, and that appellant told K.Z. not to write about the abuse again. But K.Z. testified at trial that she had written in her journal about the abuse, had torn out the entry and placed it in a box, and did not know what happened to it. Wife testified that she had found the entry, which indicated that K.Z. was sexually active but did not indicate she was having sex with appellant, and gave it to appellant. And appellant testified that when he was given the entry he discussed it with K.Z. and expressed concern that she might be engaging in sexual intercourse. Again we conclude that the district court did not abuse its discretion by finding this discrepancy between KZ.’s trial testimony and interview was not substantial.

In the Cornerhouse interview, KZ. stated that appellant’s wife may have seen appellant with his pants down while KZ. was on the couch, but that K.Z. was not sure because the lights were off and wife acted as if she had not seen anything. KZ. did not testify about this at trial. We conclude that this omission does not constitute an inconsistency because KZ. never asserted that wife actually witnessed anything.

At Cornerhouse, K.Z. described an incident as having occurred at the “Orange Apartment” and in her trial testimony described the incident as having occurred at the home of appellant’s parents. Again, given the time over which the abuse occurred and the multiple locations involved, we conclude that the district court did not abuse its discretion by concluding that this inconsistency was not substantial.

The fifth and sixth inconsistencies that appellant alleges involve statements made at trial about people who may have been present during instances of abuse that KZ. did not make in the Cornerhouse interview. Even if these omissions could be considered “inconsistent” with trial testimony, they were not substantial and the district court did not abuse its discretion by so finding.

On appeal, appellant argues for the first time that although K.Z. used a diagram at Cornerhouse to point out where appellant’s semen might be on a floor, she did not specifically point to such a location during her trial testimony. But, at trial, K.Z. indicated where the incident that led to appellant’s ejaculation on the carpet occurred by pointing a laser pointer at an exhibit showing the room in question. This was reasonably consistent with KZ.’s Cornerhouse statement.

KZ. was subject to cross-examination about the Cornerhouse statement, and appellant was allowed to argue all inconsistencies to the jury. We conclude that the district court did not abuse its discretion in admitting the Cornerhouse interview. Because there was no abuse-of discretion, we need not address the issue of prejudice.

II. Sentencing

In this case, appellant’s right to a jury determination of aggravating sentencing factors established in Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), and applied to the Minnesota Sentencing Guidelines in State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn.2005), was recognized. Appellant was offered the opportunity to have a jury determine the existence of five aggravating factors identified by the state as. having been established during the trial. Appellant, on the record, indicated he understood and waived the right to a jury determination of the existence of those factors. The case law establishing that in order for waiver of a jury trial to be knowing, voluntary, and intelligent, the defendant must specifically waive the right to testify, to have the witnesses testify in open court in the defendant’s presence, to cross-examine the witnesses, and to require any favorable witnesses to testify applies only when a defendant is agreeing to a court determination of aggravating factors based on stipulated facts. State v. Thompson, 694 N.W.2d 117, 122 (Minn.App.2005) citing State v. Halseth, 653 N.W.2d 782, 785 (Minn.App.2002), review granted (Minn. June 28, 2005). This case is distinguishable. Appellant waived only the right to have a jury determine the existence of the factors and did not waive his right to testify, have prosecution witnesses testify in open court, cross-examine witnesses, and call witnesses on his own behalf. At the sentencing hearing, the state rested on the testimony presented at trial, all of which occurred in open court and was subject to cross-examination. Appellant did not testify or call witnesses, but appellant spoke to the court and presented numerous statements from witnesses on his behalf. Under the facts of this case, we conclude that appellant’s waiver of the right to have a jury determine the existence of the five aggravating factors identified by the state prior to the waiver was knowing, intelligent, and voluntary and that he retained but chose not to exercise additional rights that were not waived. The matter was not submitted on stipulated facts but on cross-examined testimony from the trial together with evidence appellant chose to present. We affirm the district court’s determination of the existence of the aggravating factors identified by the state prior to the waiver warranting an upward sentencing departure.

Appellant also challenges the judicial finding that he committed criminal sexual conduct in the first degree after August 1, 2000. Appellant was charged with committing first-degree criminal sexual conduct on or between September 15, 1998, and September 14, 2002. The jury was not asked to and did not determine the date(s) of appellant’s criminal sexual conduct in the first degree beyond finding that the conduct occurred between September 15, 1998, and September 14, 2002. The state concedes that appellant was entitled to a jury finding regarding when the offense was committed, but argues (1) appellant waived this issue on appeal by failing to request an instruction; (2) appellant agreed to a judicial determination of sentencing facts; and (3) there was no plain error. See generally State v. Robinson, 480 N.W.2d 644, 646 (Minn.1992) (holding defendant had right to jury determination whether offense occurred after effective date of sentencing statute). We disagree.

Before appellant waived jury consideration of aggravating factors, the state had identified the five factors on which it was seeking departure, but the amendment to Minn.Stat. § 609.342, subd. 2(b), was not brought to the attention of the district court or defendant until the day of sentencing, after appellant had waived jury consideration of the identified aggravating factors. Although appellant did not request a jury instruction addressing this issue, the issue was not relevant until appellant was convicted. To have asked that the trial jury determine the date he committed offenses that he denied committing would have been contrary to and prejudicial to his theory of defense. Although there may be situations in which a failure to request such an instruction at trial may be considered a waiver, this is not such a situation.

Furthermore, because the state did not raise the issue of the application of the increased penalty until after appellant had waived a jury determination on the identified aggravating factors, we conclude that appellant did not make a knowing, intelligent, and voluntary waiver of the right to have a jury determine whether he committed first-degree criminal sexual conduct after the effective date of the amendment to the statute. Because appellant was never informed of his right to have a jury determination of this issue, we further conclude that his failure to object at sentencing to the district court’s determination of the issue did not constitute a valid waiver. We hold that, in this case, the failure to have a jury determine the issue absent a valid waiver of the right to a jury determination was plain error. We therefore reverse the sentence imposed and remand for resentencing consistent with appellant’s right to a jury determination of whether appellant committed first-degree criminal sexual conduct after August 1, 2000, the effective date of the amendment to Minn.Stat. § 609.342, subd. 2(b). On remand, appellant may choose to waive jury consideration of this issue and may agree to have the issue determined on stipulated facts, but if so, the district court must take care to ensure a full record on each right appellant waives in connection with this determination.

DECISION

The district court did not abuse its discretion in admitting a videotape of the victim’s Cornerhouse interview that was substantially consistent with her trial testimony. Appellant validly waived his right to have a jury determine the existence of five aggravating factors identified by the state prior to the waiver. Unless he validly waives the right, appellant is entitled to a jury determination of whether he committed first-degree criminal sexual conduct after August 1, 2000, the effective date of the amendment to Minn.Stat. § 609.342, subd. 2(b).

Affirmed in part, reversed in part, and remanded.

      . Effective August 1, 2000, the Minnesota legislature amended Minn.Stat. § 609.342 to include a presumed executed sentence of 144 months for first-degree criminal sexual conduct. 2000 Minn. Laws ch. 311, art. 4, § 2, at 211. Prior to August 1, 2000, the presumptive sentence for first-degree criminal sexual conduct under the Minnesota Sentencing Guidelines was 86 months. Minn.Stat. § 609.342 (1998); Minn. Sent. Guidelines IV (2000) (showing the presumptive guideline sentence of 86 months for a defendant with a criminal history score of zero who is convicted of first-degree criminal sexual conduct).


author: DIETZEN, Judge.

text:
    ALL METRO SUPPLY, INC., Respondent, v. Keith WARNER, Defendant, Green Gardens Nursery and Landscape, Inc., Appellant.
    No. A05-446.
    Court of Appeals of Minnesota.
    Nov. 22, 2005.

      John L. Neveaux, Jr., Neveaux and Associates, Wayzata, MN, for respondent.
    Philip R. Schenkenberg, Jeffrey A. Abrahamson, Briggs & Morgan, P.A., St. Paul, MN, for appellant.
    Considered and decided by DIETZEN, Presiding Judge; KLAPHAKE, Judge; and CRIPPEN, Judge.

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

   OPINION

DIETZEN, Judge.

Appellant challenges both the district court’s submission of an arbitration award to the arbitrator for clarification, and the court’s subsequent confirmation of the amended arbitration award, arguing that the district court exceeded its statutory authority under Minn.Stat. §§ 572.01 to .41 (2004). Because the statute does not permit submission to the arbitrator for clarification after the 20-day time limits set forth in Minn.Stat. § 572.16, subd. 3 (2004) have expired, and the district court was required to confirm the original arbitration award, we reverse and remand for vacation of the amended arbitration award and confirmation of the original arbitration award.

FACTS

Appellant Green Gardens Nursery and Landscape, Inc. and respondent All Metro Supply, Inc. signed a letter of intent for the sale of respondent’s business to appellant. Over the course of six months, negotiations occurred but failed to result in a binding purchase agreement. A dispute arose between the parties which resulted in respondent commencing a lawsuit against appellant. Subsequently, the parties agreed to submit their dispute to binding arbitration under Minn.Stat. §§ 572.01-41 (2004).

On June 23, 2004, after discovery and a hearing, the arbitrator issued an arbitration award that required appellant to pay $100,000 to respondent conditioned upon respondent’s delivery of inventory, equipment, office furnishings, trade fixtures, good will, and lien releases. The award allowed respondent to “retain ownership of all vehicles identified in Claimant’s Exhibit 12.” Exhibit 12 included a listing of “assets” that were subdivided into three categories: (1) trucks; (2) loaders and bobcat; and (3) pulverizer and conveyor. The parties disagreed as to which assets listed in Exhibit 12 qualified as “vehicles.”

On July 22, 2004, respondent wrote to the arbitrator, seeking clarification of the meaning of the term “vehicles” in the arbitration award. Respondent believed it was entitled to retain all assets listed in Exhibit 12, while appellant asserted that it was entitled to all listed assets that were not classified as “vehicles.” In his response, the arbitrator stated that he lacked the authority to modify or clarify the award because the request was not made within 20 days pursuant to MinmStat. § 572.16, subd. 3. The arbitrator, however, stated that “the intent of the award was for [respondent] to retain all the assets identified on Exhibit 12. I understood them all to be vehicles.”

Respondent filed contemporaneous motions with the district court to confirm the original arbitration award under section 572.18, and to correct or modify the award for “evident mistake” under section 572.20, subdivision 1(1). Appellant agreed that the award should be confirmed but argued that correction or modification was not warranted because there was no “evident mistake” in the award. In its order, the district court reserved respondent’s motion to confirm and submitted the matter to the arbitrator for clarification of the award’s reference to “vehicles,” “so that the parties can specifically identify what pieces of equipment and/or automobiles are included within” the award to respondent.

The arbitrator held another hearing, and issued an amended arbitration award. The amended arbitration award concluded that respondent was entitled to retain ownership of all assets identified in Exhibit 12. The amended award included additional changes, requiring appellant to pay respondent the awarded amount in 10 days, specifying three additional assets which respondent was to retain, and adding an additional $4,000 to the amount to be paid by appellant.

Respondent moved the district court for confirmation of the amended arbitration award. Appellant challenged this motion, arguing that the initial arbitration award was still pending and should be confirmed, and that the arbitrator’s action was unauthorized by statute and beyond the scope of the district court’s directive regarding clarification. The district court granted respondent’s motion to confirm the amended arbitration award. This appeal follows.

ISSUES

I. Did the district court exceed its statutory authority by submitting the original award to the arbitrator for clarification?

II. Did the original arbitration award contain an “evident mistake” requiring the district court to correct or modify the award?

III. Did the district court exceed its statutory authority by confirming the amended arbitration award?

ANALYSIS

I.

Appellant first contends that the district court exceeded its statutory authority by submitting the original award to the arbitrator for clarification. Respondent argues that, pursuant to this court’s decision in Menahga, resubmission to the arbitrator was the proper remedy for an uncertain and ambiguous arbitration award. Menahga Educ. Assoc. v. Menahga Indep. Sch. Dist. No. 821, 568 N.W.2d 863 (Minn.App.1997), review denied (Minn. Nov. 18, 1997).

The interpretation of a statute presents questions of law which we review de novo. Eide v. State Farm Mut. Auto. Ins. Co., 492 N.W.2d 549, 554 (Minn.App.1992). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. ‘A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.’ ” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted).

Minn.Stat. §§ 572.01-.41 (2004) is the governing statute for binding arbitration in Minnesota. It is well settled that statutory arbitration must comply with the requirements of the governing statute. Crosby-Ironton Fed. of Teachers, Local 1825 v. Indep. Sch. Dist. No. 182, Crosby-Ironton, 285 N.W.2d 667, 669 (Minn.1979). The district court’s power to modify an arbitration award is purely statutory. Int’l Union of Elec. & Mach. Workers of Am., Local 1140 v. Portec, Inc., 303 Minn. 341, 343, 228 N.W.2d 239, 241 (1975).

Respondent sought to simultaneously confirm the arbitration award or to modify or correct it under Minn.Stat. §§ 572.18, .20 (2004). But neither section permits the district court to submit the award to the arbitrator for modification or correction. Instead, the district court’s authority to submit a modification or correction to the arbitrator is limited by Minn.Stat. § 572.16, subd. 2 (2004), which states:

If an application to the court is pending under section 572.18, 572.19, or 572.20, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in section 572.20, subd. 1, or for the purpose of clarifying the award.

But to utilize the submission process of section 572.16, the party’s application to the court under sections 572.18, 572.19, or 572.20 must be made within 20 days after delivery of the award to the party-applicant. Minn.Stat. § 572.16, subd. 3 (2004). The 20-day time limit is strictly construed. See Crosby, 285 N.W.2d at 670.

Here, the arbitration award was issued on June 23, 2004, and respondent’s request for clarification to the arbitrator was made on July 22, 2004. The arbitrator refused to clarify the award on the basis that the application was untimely. On July 27, 2004, respondent applied to the district court for modification or correction of the arbitration award. Thereafter, the district court submitted the award to the arbitrator for clarification. Appellant argues that the application to the district court was not within the 20-day time limit and, therefore, submission to the arbitrator for clarification was untimely. We agree.

Section 572.16 is clear on its face that clarification from the arbitrator must be sought within 20 days after delivery of the arbitration award to the applicant. Because the time limits in the arbitration statute are jurisdictional, the district court lacked authority to submit the award to the arbitrator for clarification after expiration of the 20-day statutory time limit under section 572.16, subdivision 3.

Respondent, however, contends that this court in Menahga established a non-statutory basis for the district court to submit ambiguous matters to the arbitrator for clarification after expiration of the time limits of section 572.16. See Menahga, 568 N.W.2d 863. We disagree.

In Menahga, the Menahga Education Association (MEA) asked the arbitrator to clarify the arbitration award, and then commenced a lawsuit alleging that certain actions taken by the school board violated the Public Employment Labor Relations Act (PELRA). Id. at 865. One week later, the MEA moved the district court to modify or correct the award, or alternatively, to confirm it. Id. Thus, the district court had pending before it applications to confirm and to modify or correct the award under Minn.Stat. §§ 572.18, and .20. The MEA contended that the arbitration award was ambiguous and needed clarification by the arbitrator. See id. at 867. But the district court interpreted the arbitration award instead of submitting it to the arbitrator for clarification. Id. at 868. Essentially, the district court filled in the gaps caused by the award’s conflicting findings. See id.

On appeal, this court reversed, concluding that a district court abuses its discretion when it interprets and confirms an ambiguous arbitration award instead of submitting it to the arbitrator for clarification in accordance with Minn.Stat. § 572.16. Id. at 866, 869. It does not appear that either party argued timeliness under section 572.16 to the Menahga court. Nothing in the opinion indicates that the Menahga court intended to establish a non-statutory mechanism to avoid the time limits of section 572.16. Consequently, Menahga does not support appellant’s argument that the district court has authority to submit awards for clarification after the 20-day statutory time limit.

II.

Second, appellant contends that respondent’s application to correct or modify the award for “evident mistake” under section 572.20, subdivision 1(1) lacked merit and, therefore, there was no basis for the district court to correct or modify the award. Respondent argues that the ambiguity of the term “vehicles” in the arbitration award was an evident mistake in the description of property.

Minn.Stat. § 572.20, subd. 1 (2004), provides that upon application made within 90 days, the district court shall modify or correct the award where:

(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

(Emphasis added).

Statutory interpretation is a question of law that we review de novo. Eide, 492 N.W.2d at 554. The object of statutory interpretation is to give the words their plain and ordinary meaning. Erickson v. State, 599 N.W.2d 589, 590 (Minn.App.1999), review denied (Dec. 14, 1999); see also Minn.Stat. § 645.08(1) (2004) (words and phrases are construed according to their common and approved usage). “A statute should be interpreted, whenever possible, to give effect to all of its provisions.” Schroedl, 616 N.W.2d at 277. And “[w]e are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id.

The relevant statutory phrase provides that the court shall modify or correct the award where: “[t]here was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.” Minn.Stat. § 572.20, subd. 1(1). In Portee, the Minnesota Supreme Court interpreted this phrase, concluding that an evident miscalculation or mistake is limited to “technical errors and irregularities in the award which do not affect the merits.” 303 Minn. at 346, 228 N.W.2d at 243. We observe that “evident” means “[e]asily seen or understood; obvious.” The American Heritage Dictionary 617 (4th ed.2000). Thus, we conclude that an evident miscalculation is an error that is obvious on the face of the award, and the correction of which does not require the court to go outside of the four corners of the award. For example, an evident miscalculation could involve an obvious mathematical error in adding a column of numbers. Similarly, an evident mistake in the description of any person, thing or property could involve a mistake in identifying the wrong year or serial number of a vehicle that is the subject of an award. But if it is necessary to go outside of the award to ascertain the intent of the arbitrator, then the relief sought is for clarification of the award.

Here, the arbitrator did not explain the meaning of the term “vehicle” in the award. Appellant contends that “vehicle” must mean those items identified as trucks in Exhibit 12. Respondent argues that every item listed in Exhibit 12 is a “vehicle.” Both interpretations have some merit. Based on the award, it is not possible to determine the meaning of the word “vehicle.” One must resort to extrinsic evidence, that is, go outside the award, to determine the arbitrator’s intent as to the meaning of the word “vehicle.” Conversely, the use of the word “vehicle” in the award does not constitute an evident mistake in the description of the property that can be corrected by reviewing the four corners of the award. Consequently, respondent’s only statutory remedy was to seek clarification of the award. Because respondent did not bring a timely application to clarify, it is without a statutory remedy.

Respondent requests that this court intervene to resolve the dispute as to the interpretation of the phrase “vehicles” in the arbitration award. Respondent argues that this court has the authority to make the necessary clarification. But section 572.16 precludes clarification after expiration of the 20-day time limit. Consequently, neither the district court nor this, court has the statutory authority to submit the matter to the arbitrator to clarify the award.

III.

Third, appellant contends that the district court erred by confirming the amended arbitration award rather than the original award. Appellant argues that the district court only had statutory authority to confirm the original arbitration award. We agree.

Minn.Stat. § 572.20, subd. 2 (2004) provides that, “[i]f the application [for correction or modification] is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.” Id. Because the original arbitration award did not contain an “evident mistake” under section 572.20 requiring modification or correction by the district court, and the time for seeking clarification of the award under section 572.16 had expired, the district court was statutorily required to confirm the original award. As a result, the amended arbitration award must be vacated.

DECISION

Because respondent did not file its application within 20 days of the date the arbitration award was delivered to it; and the original arbitration award did not contain an evident mistake in the description of property, the district court lacked authority to submit the arbitration award to the arbitrator and was statutorily required to confirm the original arbitration award. We reverse and remand for vacation of the amended arbitration award and confirmation of the original arbitration award.

Reversed and remanded.


author: SANDSTROM, Justice.

text:
    2005 ND 218
    CURTIS CONSTRUCTION COMPANY, INC., Plaintiff and Appellee v. AMERICAN STEEL SPAN, INC., dba Mastercraft, and Wane Engkjer, Defendants and Appellants.
    No. 20050175.
    Supreme Court of North Dakota.
    Dec. 20, 2005.

      Adam W. Hamm, Anderson & Bottrell, Fargo, N.D., for plaintiff and appellee.
    Jeff A. Bredahl, Bredahl, Frisk & Grande, Fargo, N.D., for defendants and appellants.
   SANDSTROM, Justice.

[¶ 1] American Steel Span, Inc., and Wane Engkjer appeal a district court judgment awarding Curtis Construction Company, Inc., $34,241.62 after a bench trial. The disputes arose over the concrete work on two projects in Fargo. The district court’s findings are supported by the evidence, and we affirm.

I

[¶ 2] American Steel Span, Inc., does business as Mastercraft and sells steel buildings around the country. Wane Eng-kjer is American Steel’s principal owner. Curtis Construction is a North Dakota contractor.

[¶ 3] The first disputed project involved concrete work that Curtis Construction agreed to do for Mastercraft at Reile’s Transfer in Fargo. Russell Handegard, the president of Curtis Construction, testified that Mastercraft was concerned about its need to finish the Reile’s Transfer project and that the site had drainage problems that needed to be solved. Mastercraft asked Curtis Construction to help it finish the project. Tolly Wangsness, Mastercraft’s foreman, testified that Mastercraft contracted with Curtis Construction through its foreman, Kent Moritz, to remove some concrete that Mastercraft had poured and to lay new concrete for a flat, per-square-foot rate. In support, American Steel offered Exhibit 3 into evidence at trial, which American Steel refers to as a “work order.” The document contains language that American Steel argues created a flat-rate contract. Exhibit 3, dated “10/10/02,” lists the job as “Reile’s Transfer” and states “Tear out & Replace concrete @ $4.50 <t; Place 6" concrete @ $3.00 Sq Ft per Tolly at Master craft Bldg. T.W. T.W. Tolly Wangness [sic].” The document was initialed by Wangsness. Handegard testified that Moritz did not have authority to contract for new projects on behalf of Curtis Construction and that the contract for the removal of old and pouring of new concrete was an oral contract for a time-and-materials price. The time-and-materials price was calculated by adding the cost of raw materials, plus labor, plus an eight percent allowance for overhead costs and an eight percent allowance for profit. The district court concluded that the contract was a time-and-materials contract and awarded Curtis Construction $19,345. Of this amount, $14,000 had been paid, so the remaining balance due was $5,345.

[¶ 4] The second project was for concrete work at Engkjer’s home in the Rose Creek area of Fargo. Handegard and Engkjer orally agreed that Curtis Construction would lay two concrete driveways at Engkjer’s home. According to Engkjer, the parties agreed on a flat, per-square-foot rate. Handegard testified the agreement was for a time-and-materials price. Engkjer also contends Curtis Construction did not substantially perform the Rose Creek contract, because Curtis Construction delayed in pouring when it did not have a concrete pump; did not install joints to prevent cracking; did not finish the driveway to specifications by failing to insert decorative concrete diamonds into the driveway; and did not properly lay the sand sub-grade, which Engkjer claims has resulted in extensive heaving and cracking. Moritz testified that his observations of the cracking persuaded him that the driveway’s useful life has been reduced by thirty to forty percent. The district court found that Engkjer acquiesced to the time- and-materials pricing. ■ The court also found that Engkjer had not established the diminished value of the driveway caused by the alleged failure to properly perform. It awarded Curtis Construction $26,674 in damages.

[¶ 5] On appeal, American Steel and Engkjer argue that the district court clearly erred by concluding the two agreements were not fixed-rate contracts and by not reducing the Rose Creek judgment, given Curtis Construction’s alleged failure to substantially perform. Curtis Construction argues the district court’s findings are correct.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

A

[¶ 7] On the Reile’s Transfer project, American Steel argues that Exhibit 8 constitutes the contract between the parties. Whether a writing is sufficient to constitute a contract is a question of law, fully reviewable by this Court. Johnson v. Auran, 214 N.W.2d 641, 652 (N.D.1974).

[¶ 8] The elements of a contract include parties capable of contracting, the consent of both parties, a lawful objective, and consideration. N.D.C.C. § 9-01-02. Section 9-06-02, N.D.C.C., provides that all contracts may be oral, except those required by statute to be in writing. Both contracts in dispute in this case may be oral and not violate the statute of frauds, because they were capable of being performed in one year. See N.D.C.C. § 9-06-04 (contracts incapable of being performed in one year, contracts assuming payment of the debt of another, real estate sales or leases for a year or more, and contracts lending or extending credit for $25,000 or more must be in writing).

[¶ 9] In Auran, this Court addressed whether a “written memorandum of an alleged oral contract not to be performed within a year from the making” was sufficient to satisfy the statute of frauds provided for in N.D.C.C. § 9-06-04. 214 N.W.2d at 650. The disputed matter was an employment agreement between a car dealership owner and the widow of the former dealership owner. Id. at 646. The widow and the dealership allegedly agreed orally that the dealership would employ the widow as a “goodwill representative” of the car dealership for $100 per month and the yearly use of a new car. Id. The agreement was outlined in a letter from the dealership to the widow. Id. This Court held that for a writing to be sufficient to constitute the complete contract, the writing “must contain all the essential or material conditions and terms of the contract.” Id. at 649-50. The contract may be contained in several writings or documents as long as it contains four details: (1) <cWho the contracting parties are”; (2) “The identity of the subject matter involved”; (8) “The consideration”; and (4) “The terms and conditions upon which the contract was entered into.” Id. at 651 (citing Hoth v. Kahler, 74 N.W.2d 440, 441 (N.D.1956)). Even though the agreement between Curtis Construction and American Steel is not a contract that must be in writing, the same factors may be considered in deciding whether Exhibit 3 sufficiently explains the agreement. See Stout v. Fisher Indus., Inc., 1999 ND 218, ¶ 14, 603 N.W.2d 52 (because the memorandum in question clearly showed that the parties planned to negotiate some employment terms later, it was not a complete contract).

[¶ 10] Exhibit 3 in this case is labeled as a “Daily Log.” Curtis Construction’s president, Handegard, testified the document is field notes regarding Reile’s Transfer. The parties dispute whether the form is regularly used by Curtis Construction in its business. The writing on Exhibit 3 lists the job as “Reile’s Transfer” and states “Tear out & Replace concrete @ $4.50 <f; Place 6" concrete @ $3.00 Sq Ft per Tolly at Master craft Bldg. T.W. T.W. Tolly Wangness [sic].” Handegard testified that the notes must have been written by Moritz or Wangsness. He also testified that the alleged per-square-foot pricing was communicated to him by Moritz, not from him to Moritz, and that he never approved a flat-rate price.

[¶ 11] Applying the Auran elements to Exhibit 3 demonstrates that it fails as a complete contract between the parties because it does not include both parties and all the essential or material terms and conditions of the agreement. Exhibit 3 discloses only Mastercraft as a party to the agreement through Wangsness’s name and initials. The document does not disclose Curtis Construction as a party. It is not signed by any representative of Curtis Construction. According to Handegard, the form was not created by Curtis Construction and is only sometimes used on its construction projects. • Therefore, Exhibit 3 does not disclose the parties to the agreement. Furthermore, Exhibit 3 does not disclose the complete terms and conditions under which the contract was entered into. Handegard testified that the document is very brief, describing only a small aspect of the job, and does not describe the work being done at the site. The document does not disclose the total square footage involved in the project or the amount of supplies needed. It does not discuss any specifications for any aspect of the project, nor does it discuss a deadline for the project. Exhibit 3 is too incomplete to constitute a full written contract between the parties. Therefore, it is merely extrinsic evidence that the district court may consider when deciding what the terms of the oral contract were. Exhibit 3 cannot be a contract as a matter of law.

B

[¶ 12] That Curtis Construction and American Steel had at least an oral contract regarding the Reile’s Transfer project is not disputed. The only disputed term is the pricing. American Steel argues the oral agreement was for a flat-rate, per-square-foot price, evidenced by Exhibit 3. Curtis Construction argues that the oral agreement was for a time-and-materials price.

[¶ 13] For disputes involving oral contracts, the trier of fact decides the terms of the contract. Smith Enters., Inc. v. In-Touch Phone Cards, Inc., 2004 ND 169, ¶ 13, 685 N.W.2d 741 (citing Tallackson Potato Co., Inc. v. MTK Potato Co., 278 N.W.2d 417, 422 (N.D.1979)). The findings of the district court will not be reversed unless they are clearly erroneous. Id.; N.D.R.Civ.P. 52(a). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made.” Moen v. Thomas, 2001 ND 95, ¶ 19, 627 N.W.2d 146. “On appeal, the trial court’s findings of fact are presumed to be correct, and the complaining party-bears the burden of demonstrating a finding is clearly erroneous.” Id. At a bench trial, the trial judge weighs credibility of the evidence. Id. at ¶ 20. “We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.” Id.

[¶ 14] The district court concluded that the pricing term of the Reile’s Transfer contract was on a time-and-materials basis. Handegard testified that he met with Wangsness and representatives from Reile’s Transfer and that Mastercraft was having problems with the site and needed Curtis Construction’s help. He testified there were no specifications to complete the project. Handegard testified that because there were no exact instructions, Curtis Construction and American Steel agreed to a time-and-materials contract, just as they had done on a prior project completed by Curtis Construction for American Steel. Handegard also testified that after the time-and-materials invoice for the Reile’s Transfer project was sent to American Steel, American Steel paid $14,000 toward the balance. He testified that at the time no one from American Steel disputed the time-and-materials basis used to calculate the balance due. Handegard also testified that he never charged a per-square-foot rate but preferred to do pricing on either a bid or time-and-materials system, depending on the specifications and other information he was given. He testified that he does not recall having any discussion with Moritz on how the Reile’s Transfer project would be charged. Handegard testified that he did not tell Moritz that Reile’s Transfer was a cost-per-square-foot project and that Mor-itz should discuss the agreement with Wangsness.

[¶ 15] The district court weighed the credibility of the evidence. Although there was contrary testimony from American Steel’s witnesses, the record supports the district court’s conclusion of a time- and-materials price, and its findings are not clearly erroneous. The district court’s findings of fact, conclusions of law, and order regarding the Reile’s Transfer project are affirmed.

Ill

A

[¶ 16] On the Rose Creek Project, Curtis Construction and Engkjer agree they had an oral contract regarding the concrete work at Engkjer’s home. The only term in dispute is the pricing. Eng-kjer argues the oral agreement was for a flat-rate, per-square-foot contract. Curtis Construction argues that the oral agreement was for a time-and-materials price. The same standards of review that applied for the Reile’s Transfer oral contract apply to this contract as well. See ¶ 13, supra.

[¶ 17] Handegard testified that when he talked to Engkjer, his employees had already begun work on the driveways. He testified that after he arrived at Engkjer’s home, the two discussed whether Curtis Construction would pour two driveways for Engkjer’s home. He also testified that little preparation had been done at the site and that pouring concrete would be difficult because of the lack of preparation. Handegard testified that he would not give Engkjer a per-square-foot price because of the poor condition the site was in. Finally, Handegard testified that at the end of his conversation with Engkjer, he told Eng-kjer that Curtis Construction would do the work for a time-and-materials price and would be as economical as possible. Eng-kjer and Moritz disputed Handegard’s testimony, testifying they believed the final agreement was for a flat-rate price. The district court concluded that Engkjer had acquiesced to the time-and-materials price by the end of the conversation. The district court weighs credibility of the witnesses, and this Court will not substitute its judgment, for the conclusions of the district court when there are two possible conclusions to be drawn from the evidence. Moen, 2001 ND 95, ¶20, 627 N.W.2d 146. The district court’s decision between two permissible views of the evidence is not clearly erroneous. Id. The record, through Handegard’s testimony, supports the district court’s finding that the Rose Creek project was done on a time-and-materials basis. We affirm the district court’s finding that the contract was a time-and-materials contract.

B

[¶ 18] Finally, Engkjer argues that the district court erred by not reducing the balance due to Curtis Construction for the diminution in value of the driveways because Curtis Construction failed to substantially perform. Whether a party to a contract has substantially performed and what amount of damages a party has incurred are questions of fact, and the district court will not be reversed unless its findings of fact are clearly erroneous. Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶ 17, 608 N.W.2d 279.

[¶ 19] The doctrine of substantial performance allows a contractor to recover on a contract even when it has not fully complied with the contract, as long as it has performed the contract in good faith and has mostly performed its responsibilities under the contract, “ ‘except as to unimportant omissions or deviations, which are the result of mistake or inadvertence, and were not intentional, and which are susceptible of remedy, so that the other party will get substantially the building he contracted for.’ ” Dittmer v. Nokleberg, 219 N.W.2d 201, 208-09 (N.D.1974) (quoting Anderson v. Todd, 8 N.D. 158, 158, 77 N.W. 599, 599 (1898)). The contractor’s default must not be willful, and the defects in its work must “ ‘not be so serious as to deprive the property of its value for the intended use nor so pervade the whole work that a deduction in damages will not be fair compensation.’ ” Id. at 209 (quoting 3 Samuel Williston & George J. Thompson, A Treatise on the Law of Contracts § 805 (rev. ed.1937)). If a contractor has failed to substantially perform, it cannot recover an amount due under the contract. Merrill Iron & Steel, Inc. v. Minn-Dak Seeds, Ltd., 334 N.W.2d 652, 657 (N.D.1983) (citing Dittmer, 219 N.W.2d at 206). A contractor has not substantially performed when the “defects are intentional, willful, or so serious as to deprive the property of its value or intended use.” Id. (citing Dittmer, 219 N.W.2d at 209).

[¶ 20] The remedy. allowed when a contractor has substantially but not fully performed is an adjustment of the amount the property owner is required to pay the contractor to allow for the defects. Id. at 657. Generally, if the defects can be repaired without reconstructing a substantial portion of the project, the contractor can recover the contract price less the expense required to repair the defects. Storebo v. Foss, 325 N.W.2d 223, 225 (N.D.1982). When the defects cannot be remedied without substantial reconstruction, however, the remedy is the value of a properly constructed project less the value of the project as actually constructed. Id. (quoting Dittmer, 219 N.W.2d at 206).

[¶ 21] For substantial performance remedies, as for general damages for breach of contract, “[n]o damages can be recovered ... if they are not clearly ascertainable in both their nature and origin.” N.D.C.C. § 32-03-09; see also Biteler’s Tower Service, Inc. v. Guderian, 466 N.W.2d 141, 146 (N.D.1991) (an injured party in a breach of contract suit can recover only the amount that puts it in the same position as if the contract had been performed). Substantial performance remedies require that injured parties affirmatively prove the cost of repair or the loss of value to the property before they may receive an offset of the amount due to the contractor. See Dittmer, 219 N.W.2d at 208 (homeowner could not recover for poor concrete work when there was evidence only of what repairs were needed but no evidence of what the cost was). If the owner does not meet this burden, there is a failure of proof regarding damages. Id.

[¶22] The record supports the district court’s finding that Engkjer did not provide sufficient evidence regarding the diminution of value of the driveway. Engkjer relies on Moritz’s testimony that because of the alleged defects, the driveway is deficient. Moritz also testified that the life expectancy of the driveway had been diminished by possibly thirty or forty percent. Moritz’s exact testimony regarding how much the life expectancy of the driveway has been reduced was, “I would think maybe 30, 40 percent maybe. The driveway is deficient already. If you’re— that would be a round number. I’m basin’ on what I looked at out in the driveway from what you seen before and what has happened to this day.” There was no testimony from Moritz or any expert regarding the usual life expectancy of similar concrete driveways; the value of this driveway, other than the time-and-materials invoice prepared by Curtis Construction; or the cost of removing and replacing the driveway. The district court could reasonably conclude that the testimony was too speculative to find diminution of value. Therefore, the district court did not err when it refused to reduce the amount owed to Curtis Construction. We affirm the district court’s findings of fact regarding the damages to which Curtis Construction is entitled.

IV

[¶ 23] The judgment of the district court is affirmed.

[¶ 24] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: KAPSNER, Justice.

text:
    2005 ND 216
    In the Interest of A.B. and M.B., Children. Tamera Ressler, L.S.W., Petitioner and Appellant v. C.B. and R.F., T.S., A.B., M.B. and Jan Gabriel, Lay Guardian ad Litem, Respondents White Earth Band of Chippewa Indians, Intervenor and Appellee.
    No. 20050223.
    Supreme Court of North Dakota.
    Dec. 20, 2005.
    Rehearing Denied Jan. 31, 2006.

      Susan Lynne Bailey, Assistant State’s Attorney, Fargo, ND, for petitioner and appellant.
    Zenas Baer, Zenas Baer & Associates, Hawley, MN, for intervenor and appellee.
   KAPSNER, Justice.

[¶ 1] Tamera Ressler has appealed from a juvenile court order granting the motion of the White Earth Band of Chippewa Indians (“Tribe”) to intervene in a child deprivation case. We conclude the order granting the motion to intervene is not a final, appealable order, and we dismiss for lack of jurisdiction.

I

[¶ 2] C.B. is the mother of two minor children, A.B. and M.B. In March, 2005, C.B. was incarcerated and her mother, who had been caring for the children, could no longer properly care for them. The separate fathers of the children had been deported to Mexico. The children were taken into protective custody by Cass County Social Services (“CCSS”) and a petition alleging the children were deprived was filed by Ressler on behalf of CCSS.

[¶ 3] Because C.B. is an enrolled member of the Tribe, notice of the petition was given to the Tribe in accordance with the Indian Child Welfare Act (“ICWA”). The Tribe moved to intervene, alleging A.B. and M.B. are “Indian children” covered under ICWA. The Tribe provided documentation indicating that C.B. was an enrolled member of the Tribe and that the Tribe had determined A.B. and M.B. were eligible for membership in the Tribe for purposes of ICWA.

[¶ 4] The juvenile referee granted the Tribe’s motion to intervene. Ressler requested review by the juvenile court, which found that A.B. and M.B. were “Indian children” under 25 U.S.C. § 1903(4)(b), which defines “Indian child,” in part, as an “unmarried person who is under age eighteen and ... is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” The court therefore concluded ICWA applied and granted the Tribe’s motion to intervene. Ressler appealed from the order granting the Tribe’s motion to intervene. On appeal Ressler challenges the Tribe’s right to intervene because Res-sler asserts A.B. and M.B. were not eligible for membership in the Tribe.

II

[¶ 5] Before we consider the merits of an appeal, we must have jurisdiction. Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110; Henry v. Securities Comm’r, 2003 ND 62, ¶ 5, 659 N.W.2d 869. The right to appeal is a jurisdictional matter which this Court will consider sua sponte. Frontier Enters., LLP v. DW Enters., LLP, 2004 ND 131, ¶ 3, 682 N.W.2d 746. Even if the parties do not question appealability, we must dismiss on our own motion if we conclude that we do not have jurisdiction. Id.; Henry, at ¶ 5. Only those judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable. Mann v. ND Tax Comm’r, 2005 ND 36, ¶ 8, 692 N.W.2d 490; Frontier, at ¶ 3. The right of appeal in this state is governed solely by statute, and if there is no statutory basis to hear an appeal we must take notice of the lack of jurisdiction and dismiss the appeal. Mann, at ¶ 7.

[¶ 6] This Court has noted that “[a]n order granting leave to intervene is not final and is not appealable as of right.” Wyatt v. R.D. Werner Co., Inc., 524 N.W.2d 579, 580 (N.D.1994) (quoting 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1923 (1986)); see also Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 374-79, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987); Trent v. Dial Medical of Florida, Inc., 33 F.3d 217, 225 (3d Cir.1994); Securities and Exc. Comm’n v. Chestman, 861 F.2d 49, 50 (2d Cir.1988); In re Lytton’s, 832 F.2d 395, 398 (7th Cir.1987); Kartell v. Blue Shield of Massachusetts, Inc., 687 F.2d 543, 550 (1st Cir.1982); Shore v. Parklane Hosiery Co., Inc., 606 F.2d 354, 356 (2d Cir.1979); Corning Bank v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737, 738 (1984); Rocque v. Sound Mfg., Inc., 76 Conn.App. 130, 818 A.2d 884, 887-89 (2003); Brookshire v. Retz, 111 S.W.3d 920, 923 (Mo.Ct.App.2003); Whitefish Credit Union Ass’n, Inc. v. Glacier Wilderness Ranch, Inc., 242 Mont. 471, 791 P.2d 1363, 1365 (1990); Duncan v. Government Employees Ins. Co., 331 S.C. 484, 449 S.E.2d 580 (1994); E.H. Schopler, Annotation, Appealability of Order Granting or Denying Right of Intervention, 15 A.L.R.2d 336, § 12 (1951). The rationale underlying the rule is that a grant of intervention merely allows the action to proceed and does not finally determine the rights or claims of any party, and all parties retain the right to appeal upon entry of a final judgment or order. See, e.g., Kartell, at 550; Shore, at 356; Brookshire, at 923. Ressler will have the opportunity to challenge the juvenile court’s decision allowing intervention upon a proper appeal from a final judgment or order.

[¶ 7] We conclude the order granting the Tribe’s motion to intervene is not a final, appealable order, and we do not have jurisdiction. We therefore dismiss the appeal.

[¶ 8] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.