author: LINDBERG, Judge.

text:
    Kathryn BONDY, et al., Appellants, v. Carey ALLEN, et al., Respondents, Gold Cross Ambulance Service, Inc., Respondent.
    No. C0-01-28.
    Court of Appeals of Minnesota.
    Oct. 23, 2001.

      Robert G. Benner, Michael B. Goodman, Joseph M. Guzinski, Goodman, Guzinski & Benner, P.A., Rochester, MN, for appellants.
    Thomas S. Fraser, Kathleen M. Miller, Robin L. Preble, Trudi Noel Trysla (of counsel), Fredrikson <& Byron, P.A., Minneapolis, MN, for respondent Gold Cross Ambulance Service, Inc.
    Steven J. Hovey, Hoversten Johnson Beckmann Wellmann & Hovey, Austin, MN, for respondents Carey and Jeffrey Allen.
    Considered and decided by STONEBURNER, Presiding Judge, HANSON, Judge, and LINDBERG, Judge.
   OPINION

LINDBERG, Judge.

Appellant Kathryn Bondy and her husband, John, sued an ambulance service that transported her to a Rochester hospital after she was struck by a car. The district court granted summary judgment in favor of the ambulance service. Appellants argue that their expert testimony established a genuine issue of material fact as to causation. We affirm.

FACTS

Appellant Kathryn Bondy (Bondy) was a pedestrian in a designated crosswalk when a vehicle traveling 30 to 40 miles per hour struck her in November 1994. The vehicle was owned by respondent Jeffrey Allen and driven by respondent Carey Allen. Bondy sustained multiple injuries, particularly to her left hip and pelvis.

Respondent Gold Cross Ambulance Service, Inc., was called to the accident scene to transport Bondy to the emergency room. At the accident scene, Gold Cross paramedic Kenneth Schweim assessed Bondy’s physical condition and concluded she was alert and oriented to her surroundings. Schweim checked her airway, breathing, and circulation and did not observe any distortion of her limbs. He then palpated her lower torso because he knew that was a fragile area, which may have been injured. Bondy did not indicate that she experienced pain during the palpa-tions. Bondy was rolled onto her side, placed on a backboard, and secured with safety straps. The backboard was then secured to a gurney with additional safety straps across Bondy and placed in the ambulance. Bondy’s husband, John, traveled in the front of the ambulance.

In the ambulance during transport, Schweim continued to assess and treat Bondy by placing electrodes on her, monitoring her heart, administering oxygen, and attaching a pulse oximeter. Because Bondy was a multiple trauma patient, Schweim needed to do a secondary assessment to determine the nature and extent of the injuries, direct treatment in the ambulance, and expedite services upon arrival at the emergency room. He unfastened one or two safety straps around Bondy’s leg and torso to remove a coat placed on her at the accident scene. Two or three straps remained fastened. At some point thereafter, the movement of the ambulance caused Bondy’s left leg to slide off the backboard, allowing her foot to touch the floor below the gurney. Bon-dy, who had been moaning in the ambulance, screamed at this point.

Schweim immediately returned Bondy’s leg to the backboard and gurney, refastened the lower straps he had previously removed, and continued the examination and treatment. When the ambulance arrived at the hospital, Bondy was turned over to the hospital’s care.

The Bondys sued (1) Carey and Jeffrey Allen; (2) the City of Rochester; and (3) Gold Cross Ambulance Service. The Bon-dys settled with the city before the scheduled trial date. Their claims against Gold Cross for negligent training and driving were also dismissed. Gold Cross moved for summary judgment on the negligence claim for allowing Bondy’s leg to slide off the gurney, arguing there was inadequate proof that the “gurney incident” caused any compensable damage. The district court initially denied summary judgment.

The Bondys and Gold Cross made several motions in limine. The district court rejected the Bondys’ motion to hold Gold Cross to the standard of care applicable to common carriers, ruling that Gold Cross is subject to the standard of care applicable to professionals. The court also rejected the Bondys’ motion to hold Gold Cross jointly and severally liable with Carey Allen for all of Bondy’s injuries under the single-indivisible-injury rule.

The case was set for trial in November 2000. After the jury was selected and opening statements were given, the Bon-dys and the Allens settled. The Allens agreed to pay their insurance policy limits and Carey Allen admitted liability for striking Bondy. Gold Cross then moved to exclude all evidence relating to damage caused by Carey Allen, arguing that evidence should be limited to damage allegedly caused by Gold Cross. The district court did not rule on this motion. Instead, the court reconsidered sua sponte its earlier denial of Gold Cross’s motion for summary judgment and granted summary judgment against the Bondys. This appeal follows.

ISSUES

I. Did Dr. Davis’s testimony present a material question of fact, thereby precluding the granting of summary judgment against the Bon-dys?
II. Do appellants’ other issues entitle them to relief?

ANALYSIS

I. Summary Judgment

The Bondys argue that the district court improperly granted summary judgment in favor of Gold Cross. They assert that the district court

usurped the role of the jury by making improper findings of material facts and determining issues of credibility when it determined that Dr. Michael Davis[’s] testimony, at best, supports de minimis damages for additional blood transfusions and past temporary pain * * ⅜ and was speculative and lacked foundation to support a verdict against Gold Cross for aggravation of pre-existing injuries.

They contend that Dr. Davis’s testimony established a question of fact as to causation, and that question should have been submitted to the jury, rather than being determined by the court.

An appellate court reviewing a grant of summary judgment asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The reviewing court “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). To defeat a summary judgment motion, the nonmov-ing party must demonstrate the existence of specific disputed facts that create a genuine issue of material fact for trial. Gorath v. Rockwell Int’l, Inc., 441 N.W.2d 128, 131 (Minn.App.1989), review denied (Minn. July 27,1989).

A negligence claim requires the plaintiff to show (1) that the defendant had a legal duty, (2) the defendant breached that duty, (3) that the plaintiff suffered an injury, and (4) the breach of the duty was the proximate cause of plaintiffs injury. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn.1982). Negligence claims involve questions of fact and are generally not susceptible to summary adjudication. III.Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633-34 (Minn.1978). Further, issues of causation also involve questions of fact and “seldom can be disposed of on a motion for summary judgment.” Moe v. Springfield Milling Corp., 394 N.W.2d 582, 585 (Minn.App.1986) (quotation omitted), review denied (Minn. Dec. 17, 1986).

The Minnesota Supreme Court has stated, however, that

the mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmov-ing party],

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). Further,

when the nonmoving party bears the burden of proof on an element essential to the nonmoving party’s case, the non-moving party must make a showing sufficient to establish that essential element.

Id.

Here, when Dr. Davis was asked specifically about what harm the gurney incident did to Bondy, his answers were inconclusive and insufficient to support the Bondys’ claim. When asked “whether the percentage of disability to [Bondy’s] left lower extremity would be any different” if the gurney incident had never occurred, he answered, “I cannot absolutely be sure about that.” The same answer followed a question about her right lower extremity. He could not identify any surgeries that would not have been required but for the gurney incident. He testified that the only medical treatment Bondy would not have received, but for the gurney incident, was that “she would have required less [blood by] transfusions.” However, he could not say how much less she would have needed, nor is there any evidence that Bondy’s damages are related to the amount of blood she received.

Dr. Davis’s testimony does not support the Bondys’ assertion of negligence against Gold Cross. He was unable to ascribe any of the claimed harm to Bondy’s hip, leg, or lower extremities — beyond an unspecified increase in blood transfusions to the gurney incident in the ambulance. At best, Davis’s testimony would support de minim-is damages; it was clearly insufficient to support a finding of negligence by Gold Cross. The district court did not err when it concluded that the testimony was speculative and lacked foundation “to support a verdict against Gold Cross for aggravation of pre-existing injuries.” We affirm the district court’s grant of summary judgment.

II. Appellants’ Other Issues

a. Single-Indivisible-Injury Rule

The Bondys also argue that the Allens and Gold Cross are joint tortfeasors and that the district court erred in determining that they are not subject to the single-indivisible-injury rule. They contend that because the injuries Bondy suffered are not clearly susceptible to apportionment between the initial accident and the gurney incident, they should be subject to the single-indivisible-injury rule. The Bondys assert that Gold Cross and the Allens are jointly and severally liable, unless Gold Cross and the Allens can clearly establish which damages resulted solely from their respective actions. The Bondys argue that the district court improperly placed the burden of apportioning the injuries on them.

Whether parties are subject to the single-indivisible-injury rule (SII rule) is a question of law. Can. by Landy v. McCarthy, 567 N.W.2d 496, 507-08 (Minn.1997) (stating whether injury is capable of apportionment is a question of law). An appellate court is not bound by, and need not give deference to, the district court’s decision on a question of law. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Also, court rulings on mixed questions of law and fact are not binding on an appellate court and are subject to independent review. Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn.1986).

Joint and several liability is imposed under the SII rule when “two or more persons acting independently cause harm to a third person through consecutive acts of negligence closely related in point of time.” Landy, 567 N.W.2d at 507. The harm must be incapable of division. Id.

[U]nless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.

Mathews v. Mills, 288 Minn. 16, 21, 178 N.W.2d 841, 844 (1970) (emphasis omitted) (citations omitted). Landy involved a child who suffered lead poisoning, as a result of exposure over a period of time at two different apartments and Mathews involved a multiple-car accident. Landy, 567 N.W.2d at 498; Mathews, 288 Minn. at 18, 178 N.W.2d at 842. This case is not factually similar to these or other cases applying the SII rule.

No Minnesota case has applied the SII rule to hold a medical defendant jointly and severally liable with the tortfeasor who caused the original injury for which treatment was provided. Restatement (Second) of Torts § 433A cmt. c (1965) states that an original tortfeasor may be liable not only for harm he inflicted, but also for “additional damages resulting from the negligent treatment of the injury by a physician.” But a physician providing treatment may be liable only for additional harm caused by negligent treatment. Id. The Restatement groups physicians and other medical personnel together when addressing the distinct liability of the original tortfeasor for additional harm resulting from efforts of third parties rendering aid to an injured person. Id. § 457 cmts. a, b, c.

Minnesota and other jurisdictions have held that a negligent medical defendant in a situation similar to this one is a subsequent tortfeasor who can be held liable only for aggravating the original injury. See Couillard v. Charles T. Miller Hosp., Inc., 253 Minn. 418, 427, 92 N.W.2d 96, 102 (1958) (finding doctor was subsequent tortfeasor, rather than joint tortfeasor, where doctor misdiagnosed a fractured vertebra after a fall on public bus); see also U.S. Lines, Inc. v. United States, 470 F.2d 487, 491 (5th Cir.1972) (stating tortfeasor and physician subsequently aggravating injury are not joint tortfeasors and physician not liable to original tortfeasor under any theory of contribution); Stuart v. Hertz Corp., 351 So.2d 703, 705 (Fla.1977) (stating original tortfeasor and doctor aggravating injury not joint tortfeasors, but distinct and independent tortfeasors).

In effect, Bondy’s injuries from the accident constituted a pre-existing condition when the ambulance was called to the scene. The Allens and Gold Cross were, at best, successive tortfeasors. To hold Gold Cross liable for injuries that occurred before the ambulance arrived on the scene would have a chilling effect on the provision of emergency care and is simply inconsistent with existing caselaw.

b. Common Carrier

Relying on cases from other jurisdictions, the Bondys argue that Gold Cross is a common carrier and, therefore, strictly liable for injuries suffered during transport. See, e.g., Bricks v. Metro Ambulance Serv., Inc., 177 Ga.App. 62, 338 S.E.2d 438, 442 (1985) (stating ambulance service was common carrier and absolutely liable for injury incurred during transport, except for acts “of God or public enemies”). The Bondys argue that the district court erred in determining that they were required to establish a breach of the duty of care applicable to medical professionals.

As recently stated by this court, determination of the proper

standard of care presents a question of law because it defines a legal obligation to be determined only by the court and from which the jury may not deviate.

Blatz v. Allina Health Sys., 622 N.W.2d 376, 383-84 (Minn.App.2001) (citation omitted). A reviewing court is not bound by and need not.give deference to a district court’s decision on a purely legal issue. Frost-Benco, 358 N.W.2d at 642.

Ambulances do not require a motor carrier certificate or permit. Minn.Stat. § 221.025(4) (2000). In fact, ambulance services are regulated by the Minnesota Department of Health and the Emergency Medical Services Regulatory Board (the board). Minn.Stat. §§ 144E.001, subds. 2, 3; .01 (2000). Persons operating ambulance services must be licensed by the board. Minn.Stat. § 144E.10, subd. 1 (2000). In addition, ambulance service personnel are required to have special training and certification as an emergency medical technician (EMT), EMT-I, or EMT-P, to be a registered nurse who is also an EMT, or to be a registered physician assistant who is also an EMT. Minn. Stat. § 144E.001, subds. 3a, 5c (2000).

In Blatz, this court discussed the services provided by ambulance personnel, noting that some services require medical expertise, while others do not. Blatz, 622 N.W.2d at 384. When a paramedic “furnish[es] medical treatment to a patient, a medical or professional standard of care should apply.” Id. at 385. However, when a paramedic is performing “functions not requiring professional training or judgment, [such as locating an address,] then a heightened standard of professional care is not required.” Id. In Blatz, the court determined that ambulance personnel were performing a non-medical function when they had trouble locating the correct address, which caused a two to five minute delay. Id. We concluded that Allina Health System was therefore subject to a reasonable-person standard of care, rather than to a standard of care applicable to medical professionals. Id.

Schweim was a licensed paramedic who assessed and treated Bondy in the ambulance, by placing electrodes, monitoring heart rate, administering oxygen, and attaching a pulse oximeter. Schweim was conducting a secondary assessment to determine Bond/s immediate needs and to expedite services upon arrival at the emergency room. He had received specialized training on how to remove clothing and to move injured patients. The tasks in which he was engaged are not those commonly performed by lay people, but tasks performed by specially trained medical personnel, and Blatz is clearly distinguishable. Schweim was performing functions requiring medical training, and the district court did not err in holding that the standard of care applicable to common carriers was not the correct standard to be applied in this case.

DECISION

Dr. Davis’s testimony was not sufficient to establish a question of material fact precluding summary judgment. The district court did not err in rejecting the Bondys’ arguments regarding the single-indivisible-injury rule and the standard of care applicable to common carriers.

Affirmed.

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


source: Caselaw Access Project

author: MEIERHENRY, Circuit Judge.

license: Public Domain

text:
    2001 SD 122
    Joan MARKS, Petitioner and Appellant, v. Nancy CLARK, Appellee.
    No. 21777.
    Supreme Court of South Dakota.
    Argued Aug. 29, 2001.
    Decided Oct. 3, 2001.
    Jamie L. Damon, Pierre, South Dakota, Attorney for petitioner and appellant.
    Brent A. Wilbur of May, Adam, Gerdes and Thompson, Pierre, South Dakota, Attorneys for appellee.
   MEIERHENRY, Circuit Judge.

[¶ 1.] Joan Powell Marks (Marks) appeals the trial court’s denial of a stalking protection order pursuant to SDCL 22-19A-12. We affirm.

FACTS AND PROCEDURE

[¶ 2.] This ease arises out of family dispute involving Marks and her sister-in-law, Nancy Clark. In February of 1999, Marks, an attorney who practiced law in Pierre and Gettysburg, married Bill Marks (Bill), the owner and operator of a farm and ranch in Potter County, South Dakota. 3.Bill’s immediate family consisted of his mother and seven sisters, one of whom is Nancy Clark (Clark). Clark was employed at Marks’ family farm and ranch operation.

[¶ 3.] Around July 18, 2000, Bill Marks filed for divorce. On October 18, 2000, while the divorce was still pending, Marks sought an ex parte temporary protection order in circuit court against her sister-in-law Clark. Marks alleged that Clark willfully, maliciously, and repeatedly followed and harassed her, that Clark threatened her in a manner causing her fear of great bodily injury or death, and that Clark assaulted her causing physical injury. The court granted the ex parte temporary protection order and set the protection order hearing for November 9, 2000.

[¶ 4.] At the hearing, both parties presented testimony. Marks testified that Bill’s family had not approved of their marriage, and that she had feared the family might harm her. Marks claimed that Clark, in particular, had embarked on a course of threatening conduct that caused her to be afraid of Clark. Marks maintained that Clark surveilled her by repeatedly driving past her home in town and watching her when she was on the farm. Marks also suspected Clark of attempting to frighten her by placing a dead badger near a gate Marks entered to care for livestock. Marks further testified that Clark had threatened to kill Marks’ horses, had called her vulgar names, and threatened and screamed at her on various occasions. On more than one occasion, Marks claimed she encountered Clark’s vehicle on the road to or from the farm when Clark tried to run her off the road going speeds of up to 90 miles an hour. She also believed that Clark was responsible for hunters firing shots near her on opening day of hunting season.

[¶ 5.] Additionally, Marks testified concerning an incident on July 7, 2000 when Clark grabbed her by the arm, causing bruises. This incident involved a disagreement about whether Marks should be in a family picture. The family was taking pictures of Bill and his sisters and Marks insisted on being included in the pictures. The disagreement escalated to the point where Clark grabbed Marks by the arm. The next day Marks contacted the Potter County Sheriff complaining that Clark had assaulted her leaving bruises on her arm. The sheriff took pictures of the bruising on both July 8, 2000 and also on July 11, 2000.

[¶ 6.] Several witnesses, including one of Marks’ own witnesses, gave contradictory versions of the events about which Marks testified. While Clark admitted that she and Marks had had arguments, Clark denied making any threats or engaging in any of the threatening behavior that Marks alleged. Bill also denied hearing any of the threats that his wife claims Clark made in his presence. Clark admitted taking Marks by the elbow during the July 7, 2000 picture-taking dispute but only to move her away from the other family members and not to injure her. Other family members testified that Marks had prompted the July 7 incident by her demand to be included in the family picture. Additionally, Clark’s husband said he had shot the badger near the spot where Marks saw it in order to keep it from digging holes in the pasture.

[¶ 7.] The trial court eventually found that the July 7, 2000 incident did not constitute an assault and that the incident was partially provoked by Marks. The court also determined that Clark was not present or caused the shooting of the badger, and that Marks’ claim that Clark tried to drive her off the road was unsupported by any testimony and incredible. The court further rejected Marks’ testimony about Clark driving by her house. The court found Clark was not a threat to Marks’ safety and concluded that she had not willfully, maliciously, or repeatedly followed or harassed Marks or made credible threats to her with the intent to place her in reasonable fear of death or great bodily injury.

[¶ 8.] At the close of the hearing, the trial judge denied the issuance of a protection order and dismissed the case with the following comments:

Well, stalking is a very serious charge and it requires serious evidence. And the evidence that’s been presented here today by [Marks] against [Clark] has a number of allegations over a considerable amount of time. In all of those allegations over all that period of time, there has not been one witness to corroborate her story. Therefore, I have no other recourse but to dismiss the case entirely.

Marks appeals raising the following issues:

1. Whether the trial court applied the proper standard of proof.
2. Whether the trial court abused its discretion in denying the protection order.

STANDARD OF REVIEW

[¶ 9.] The standard of review of a trial court’s decision to deny a protection order is the same standard used when reviewing a grant of an injunction. Sjomeling v. Stuber, 2000 SD 103, ¶ 11, 615 N.W.2d 613, 616. First, this Court must determine whether the trial court’s findings of fact were clearly erroneous.

In applying the clearly erroneous standard, our function is not to decide factual issues de novo. The question is not whether this court would have made the same findings that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed. This court is not free to disturb the lower court’s findings unless it is satisfied that they are contrary to a clear preponderance of the evidence. Doubts about whether the evidence supports the court’s findings of fact are to be resolved in favor of the successful party’s ‘version of the evidence and of all inferences fairly deducible therefrom which are favorable to the court’s action.’

Maryhouse, Inc. v. Hamilton, 473 N.W.2d 472, 474 (S.D.1991) (internal citations omitted). If the findings of fact are not clearly erroneous, accepting the facts as true, this Court must decide whether the trial court abused its discretion in denying the protection order. Id. at 474 (SD 1991).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the trial court applied the proper standard of proof.

[¶ 11.] SDCL 22-19A-11 provides that the trial court must determine by a preponderance of the evidence if stalking has occurred. Marks contends that the trial court held her to a higher standard of proof. Or, alternatively, if it did use preponderance of the evidence, she met her burden of proof and should have been granted the protection order. She bases her argument on statements that the trial court made after trial. At that time the court stated that a request for a stalking protection order requires “serious evidence” and corroboration. This is not an accurate standard. One does not need corroboration in order to be granted a protection order. However, the trial court specifically stated in its findings of fact and conclusions of law that it made its determination based upon the standard of proof of preponderance of the evidence.

[¶ 12.] It is well-settled law that a judge’s extraneous comments or oral proclamations in court do not control. What the judge actually signs as his legal findings is what this Court looks to. We have previously stated that a trial court’s statements have little effect on this Court’s review.

Any expression of opinion or views by the trial judge extraneous to his decision in the manner and form contemplated by law is of no binding force or effect as a matter of law either upon the trial judge himself or any one else. Such expressions by the trial judge are, of course helpful and indeed almost necessary in advising counsel as to the views of the court and for the information of counsel in drafting findings and conclusions for presentation to the court. But such expression of opinion constitutes no proper part of the record on appeal, whether announced in the form of an oral statement in open court transcribed by the reporter or in the form of a memorandum or letter addressed to counsel.

Western Bldg. Co. v. J.C. Penney Co., 60 S.D. 630, 636-637, 245 N.W. 909, 911-912 (1932) (internal citations omitted).

[¶ 13.] The trial court’s comments regarding stalking as a “serious charge” needing “serious evidence” and corroboration can only be characterized as extraneous comments since this language does not appear in the findings of fact or conclusions of law. Therefore, we find that the trial court used the proper standard of proof.

[¶ 14.] 2. Whether the trial court abused its discretion in denying the protection order.

[¶ 15.] Marks argues that proof of her injury from the July 7, 2000 incident alone was sufficient for the trial court to grant a protection order. Additionally, she argues that based on the totality of the circumstances, she has also proved that she had been stalked as defined in SDCL chapter 22-19A.

[¶ 16.] South Dakota law allows for the trial court to grant protection orders to individuals subject to domestic abuse, as provided in SDCL chapter 25-10, or to individuals subject to stalking, as provided in SDCL chapter 22-19A. Under SDCL 22-19A-8, the legislature has created a stalking protection order (1) in cases of stalking as it is defined in chapter 22-19A or (2) in cases of physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9).

[¶ 17.] The trial court determined that the July 7, 2000 incident, which Marks characterized as an assault and physical injury did not constitute an assault, was not designed to cause bodily injury and did not cause bodily injury. The court found Marks to be incredible and that Marks had, in part, provoked the incident. The trial judge is in the best position to judge the credibility of the witnesses. This Court cannot conclude that the trial court’s findings were clearly erroneous. Further, based on the entire evidence, we do not have a definite and firm conviction that a mistake has been committed.

[¶ 18.] Since we have determined that the findings of fact are not clearly erroneous, then accepting the facts as true, this Court must decide whether the trial court abused its discretion in denying the protection order. The trial court could only grant a protection order if it found by a preponderance of the evidence that Marks had physical injury as a result of an assault or if Clark was guilty of stalking. The trial court found Marks injuries were not a result of an assault and that she had not been stalked by Clark. Marks had failed to meet her burden of proof. Thus, it was not an abuse of discretion for the trial court to deny the protection order.

[¶ 19.] We affirm.

[¶ 20.] SABERS, Acting Chief Justice, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 21.] MEIERHENRY, Circuit Judge, sitting for MILLER, Retired Chief Justice, who at the time this action was submitted to the Court, was a member of the Court.

       SDCL 22-19A-1 is as follows:
      Any person:
      (1) Who willfully, maliciously, and repeatedly follows or harasses another person; or
      (2) Who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or
      (3)Who willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, mechanical, telegraphic, or written communication; is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.


author: SACKETT, Chief Judge.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Harlan J. MOTT, Jr., Defendant-Appellant.
    No. 00-0518.
    Court of Appeals of Iowa.
    May 23, 2001.
    Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County Attorney, for appellee.
    Considered by SACKETT, C.J., HUITINK and STREIT, JJ.
   SACKETT, Chief Judge.

Defendant appellant Harlan Mott, Jr., appeals his conviction for assault causing serious injury, in violation of Iowa Code section 708.2(4) (1999). Defendant’s sole issue on appeal is that his trial attorney was ineffective in not requesting instructions on proximate, intervening and superseding cause. The defendant contends these instructions were warranted because there was a question as to whether the injury he inflicted on the victim caused “a protracted loss or impairment of the function of any body part or organ.” The defendant contends the injury was only serious because medical treatment was withheld from the victim. We affirm.

While an inmate at the Polk County Jail, defendant had been using the telephone for what assault victim Tony Grimm deemed an excessive amount of time, so Grimm hung up the defendant’s call. After the defendant finished making the phone call again, he walked over to Grimm and punched him “real hard” in the jaw and then began hitting him in the face. Other prisoners were present at the time, but none came to Grimm’s aid. Shortly thereafter, guards arrived and took Grimm to the nurse’s station where he told the nurse he thought his jaw was broken because his teeth would not line up. In spite of Grimm’s claims that he needed medical treatment, three days passed before he was taken to Mercy Hospital. During those days Grimm was unable to eat. At Mercy Hospital it was determined that Grimm had indeed broken his jaw, which was apparent without X-rays because the bones were distinctly apart. X-rays revealed that there were two fractures, one on the right side of the jaw, another on the left, both of which could have been created by a single blow. Grimm underwent surgery to correct the fractures. Although the prognosis for regaining mobility in his jaw was good, Grimm suffered loss of feeling in his lip and chin due to nerve damage, a loss which will probably be permanent. Grimm’s doctor testified that this nerve damage was probably aggravated by his three-day delay in medical treatment.

At trial, during closing argument, defense counsel argued that nerve damage was likely attributable to the delay in treatment rather than to actions of defendant Mott. But counsel did not request or submit jury instructions for proximate, intervening and superseding cause. Defendant contends this failure amounts to the breach of an essential duty.

To prevail on an ineffective assistance of counsel claim defendant must show that his attorney’s performance fell outside a normal range of competency and that the deficient performance so prejudiced him as to give rise to the reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Defendant is confronted with a presumption that counsel is competent, which he must overcome in order for an ineffective assistance of counsel claim to lie. Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). Defendant must shoulder the burden of proof to establish by a preponderance of the evidence, Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980), including an affirmative factual basis, Cleesen v. State, 258 N.W.2d 330, 332 (Iowa 1977), that trial counsel provided ineffective assistance.

Defendant has not demonstrated that defense counsel’s failure to request a jury instruction regarding superseding cause in his criminal trial fell outside a normal range of competency. Prevailing law in Iowa indicates that the only túne evidence of superseding cause is an essential element of a defense case (meaning that the trial court cannot exclude it as evidence), is when that cause is the sole proximate cause of the ultimate injury suffered. See State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000). Even though the intervening act may be outrageous enough to qualify as gross negligence, it must be the sole proximate cause of the ultimate injury in order for the court to find that excluding evidence of the act is reversible error. Id. at 598, 599. In order to make his claim that counsel was ineffective by omitting an essential element of his defense, under Garcia defendant would have to show that the failure to provide Grimm immediate medical attention was the sole proximate cause of Grimm’s nerve damage, that treatment for the nerve damage had not been necessitated by the criminal attack. See id. (citing People v. Stewart, 40 N.Y.2d 692, 697, 389 N.Y.S.2d 804, 808, 358 N.E.2d 487-492 (1976)). Very simply this is not such a case. Defendant’s assault on Grimm was the sole reason the jail personnel were called upon to give Grimm any medical attention. And the medical attention Grimm did receive was to treat the very body part (jaw) defendant had injured. Under Garcia defendant is responsible for the ultimate injury, including permanent nerve damage. For that reason, the defense of superseding cause was not available to defendant, and his attorney’s failure to request an instruction on proximate, intervening and superseding cause was not a breach of an essential duty.

We recognize that this case is distinguishable from Garcia because the ultimate injury suffered here from which we are making determinations of causation is a serious injury rather than a death. The serious injury/death distinction is not of consequence to our analysis. The discussion and decision in Garcia do not revolve around the fact that more than one proximate cause contributed to the death of the victim, but rather around the fact that the defendants in that case were not the sole proximate cause of the victim’s ultimate injury, which happened in that case to be death. Garcia, 616 N.W.2d at 599. Under Garcia, the nature of the ultimate injury is relevant only insofar as it aids in a determination of whether a causal factor was the sole proximate cause of the injury. See id. Other than this Garcia consideration, the problem of superseding cause is unaffected by the nature of the ultimate injury. Whether the outcome is death or a broken jaw with nerve damage, more than one proximate cause may cause that outcome. The issue at hand is determining whether one of those causes operates as a superseding cause. The particular physiological manifestation of an injury, for purposes of comparing it to injuries suffered in other cases, is not relevant to the causation analysis.

Furthermore, the very premise of defendant’s ease, that “serious injury” occurred only after the nerve damage had been aggravated by the three-day delay, is flawed. Under State v. Welton, 300 N.W.2d 157, 161 (Iowa 1981), the Iowa Supreme Court found that evidence of a broken jaw was sufficient evidence of a serious injury to submit the serious injury question to the jury. In his argument defendant presumes that a broken jaw, without permanent nerve damage, is insufficient evidence for the jury to determine a serious injury has occurred. We disagree. In this case, even without the permanent nerve damage, the victim’s jaw was broken in two places and a facial nerve was damaged, if temporarily, in the process. Although the victim in Welton had to have her jaw wired shut for six weeks, and lost twenty-five pounds in the process, there is no indication from the record that the victim in this case suffered a less-severe injury. The only reason Grimm’s jaw was not wired shut had to do with his missing molars, not with the severity of the injury. Moreover, Grimm’s jaw may never fully return to its pre-fracture state; it has been set with steel plates and at the time of trial, three months after the injury occurred, the fractured jaw still “moved to the left” when he opened his mouth.

Given the Garcia holding that a superseding cause must be the sole proximate cause of the injury, as well as defendant’s faulty premise that a broken jaw with temporary nerve damage could not be a serious injury in and of itself, we find defendant’s attorney’s failure to request an instruction on the defense of superseding cause was not a breach of an essential duty.

AFFIRMED.

      . The ultimate injury suffered in prior case law has always been death.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Appellant (C7-01-26), Respondent (C9-01-44), v. Nicole Renee GEBECK, Respondent (C7-01-26), Appellant (C9-01-44).
    Nos. C7-01-26, C9-01-44.
    Court of Appeals of Minnesota.
    Oct. 30, 2001.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, for appellant.
    Frederic Bruno, Timothy Richard Anderson, Frederic Bruno & Associates, Minneapolis, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON and HARTEN, Judges.
   OPINION

TOUSSAINT, Chief Judge.

In these consolidated appeals, appellant Nicole Gebeck challenges her conviction for criminal vehicular homicide for driving “while having an alcohol concentration of 0.10 or more, as measured within two hours of driving,” claiming the record contains no proof that the blood test was completed within two hours of the accident. Gebeck also challenges the court’s 1.5 upward durational departure from the presumptive sentence of 48 months. In turn, the state appeals the court’s downward dispositional departure. We affirm.

FACTS

At about 11:00 p.m. on February 16, 2000, Nicole Gebeck drove her car down the wrong side of Interstate 94 for six to eight miles until her vehicle collided head-on with a vehicle driven by Stanley Croissant. Her speed was estimated at 85 mph. Croissant died at the scene from chest injuries.

Gebeck is a 30-year-old, single mother of two, with a 1993 prior conviction for driving-while-under-the-influence and two driving-after-revocation offenses on record. The night of the accident, she had been drinking with friends at a bar in Minneapolis. She recalled having “6-8 mugs of beer and a Purple Hooter.” Her last recollection that evening was of leaving the bar at about 9:30 p.m.

From the accident scene, Gebeek was taken to a hospital where a blood sample was taken. The parties stipulated that the sample was taken within two hours of the accident. The sample was then sent to the Bureau of Criminal Apprehension, which received it on February 18, 2000. The test was completed on March 2, 2000, and returned to the State Patrol on March 10. The results indicated a .25% alcohol concentration.

On April 20, 2000, Gebeek was charged with one count of criminal vehicular homicide under Minn.Stat. § 609.21, subd. 1(4) (2000). On April 26, she began an outpatient treatment program, which she completed on July 21. Gebeek waived her right to a jury trial, and the parties submitted the case for a court trial on a stipulated record. On October 10, 2000, the district court concluded 'that Gebeek was guilty as charged.

The district court departed from the 48 month executed presumptive sentence and committed Gebeek to the custody of the Commissioner of Corrections for six years, staying execution for 10 years on multiple conditions. Among the conditions, the district court ordered Gebeek to serve 365 days in the workhouse, 275 of those imme- ‘ diately. Beginning October 10, 2001, and for each of four years thereafter, the court ordered Gebeek to serve 18 days in the workhouse with no weekend furloughs. For the following four years, the court ordered her to serve 15 days of Sentence to Service and 120 hours of Community Service each year.

ISSUES

1. Does the language “as measured within two hours of driving” in section 609.21, subd. 1(4) of the criminal-vehicular-homicide statute require that a blood sample be completely tested and analyzed and a driver’s alcohol concentration be determined within two hours of the time of driving?

2. Did the sentencing court abuse its discretion in making a downward disposi-tional departure from the presumptive sentence?

3. Did the sentencing court abuse its discretion in making an upward durational departure from the presumptive sentence?

ANALYSIS

I.

. Whether a district court has properly construed a statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

Gebeek argues that the criminal-vehicular-homicide statute, Minn.Stat. § 609.21, subd. 1(4) (2000), requires that the testing of a driver’s blood be completed within two hours of driving. The statute criminalizes driving and causing a death “while having an alcohol concentration of 0.10 or more, as measured within two hours of the time of driving.” Minn.Stat. § 609.21, subd. 1(4). The district court concluded that the statute as written is ambiguous, and that the legislature intended only that the blood sample be collected within two hours of driving. We agree.

A statute is ambiguous only when it is subject to more than one reasonable interpretation. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). Here, the parties effectively propose two different readings of the statutory phrase “as measured”: Gebeek argues that the statute criminalizes causing a death while having an alcohol concentration of 0.10 or more “as measured [in a test completed] within two hours of the time of driving,” while the state argues that the statute means “as measured [by a sample taken] within two hours of the time of driving.” Where two reasonable interpretations rely on supplemental language to clearly articulate the legislation’s meaning, the statute is ambiguous and subject to statutory construction.

Gebeck urges this court to conclude the statute is unambiguous. She relies primarily on dictionary definitions of the word “measured” to conclude that “as measured” requires a final test result within two hours of driving. While dictionaries clarify that to “measure” is to “quantify,” they do not resolve what precise act toward quantifying alcohol concentration need be performed “within two hours” of driving. Consequently, we must consider the manifest intent of the legislature.

In determining the legislature’s intent, this court may consider:

(1) The occasion and necessity for the law;
(2) The circumstances under which it was enacted;
(3) The mischief to be remedied;
(4) The object to be attained;
(5) The former law, if any, including other laws upon the same or similar subjects;
(6) The consequences of a particular interpretation;
(7) The contemporaneous legislative history; and
(8) Legislative and administrative interpretations of the statute.

Minn.Stat. § 645.16 (2000). It is presumed that the legislature does not intend a result that is “absurd, impossible of execution, or unreasonable,” and does intend the entire statute to be effective and certain and to favor a public over a private interest. Minn.Stat. § 645.17 (2000).

Preliminarily, we note that the criminal-vehicular-homicide statute is one part of Minnesota’s legislative scheme to deter impaired driving. See American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 278 (Minn.2000) (stating that operation of statute may only become clear when read in conjunction with surrounding sections or whole act). Nearly identical “as measured” language is found in the traffic regulations governing impaired drivers. Minn.Stat. § 169.121, subd. 1(e) (1998) (now codified at MinmStat. § 169A.20, subd. 1(5) (2000)) (prohibiting driving “when the person’s alcohol concentration as measured within two hours of the time of driving is 0.10 or more”). Both statutes are tied to the law governing chemical tests for intoxication found in the implied consent statute, Minn.Stat. § 169A.123 (2000), and the rules promulgated by the Commissioner of Public Safety, Minn. R. 7502.0200 (1999).

The legislature contemplated a two-step process in blood testing. See, e.g., Minn.Stat. § 169A.121, subd. 2(d) (2000) (providing for affirmative defense of consuming alcohol after driving and “before the administration of the evidentiary test to cause the defendant’s alcohol concentration to exceed 0.10” (emphasis added)); id., subd. 2(a) (court may admit “evidence of the presence or amount of alcohol ⅜ * * in the person’s blood, breath, or urine as shown by an analysis of those items” (emphasis added)); see also 1984 Minn. Laws, ch. 622, §§ 5, 7 (legislature added “as measured” language and deleted redundant language referencing the two-step process) (now codified as Minn.Stat. § 169A.20, subd. 1(5) (2000)). The first step is “administering” the test which means collecting the specimen for the purpose of analyzing it to determine alcohol concentration. Minn. R. 7502.0100, subp. '2 (1999). The second step is “interpreting or evaluating” the specimen “to derive an alcohol concentration reading from analysis” of the sample. Id., subp. 4. Because the illegal alcohol concentration must relate temporally to the driving, it is the collection of the blood sample that must take place within two hours of driving. The statutorily imposed two-hour time frame thus ensures the reliability of the sample as an evidentiary tool.

The legislature requires that section 609.21’s provisions “shall be construed according to the fair import of its terms* * * and to effect its purposes.” Minn.Stat. § 609.01, subd. 1 (2000). In carrying out these general principles, we must recognize that there is a need for testing and a need to ensure that the illegal alcohol concentration fairly relates to the alleged driving. Both needs are satisfied when the sample is taken within two hours. They would be frustrated if the laboratory analysis were required within two hours of driving. This court, if possible, must give effect to all of the statute’s provisions. Minn.Stat. § 645.16 (2000). Therefore, we conclude that the state was required to show that Gebeck had an illegal alcohol concentration within two hours of driving but not that the test was completed within that time.

II.

The district court may depart from the presumptive sentence provided by the guidelines when the case involves “substantial and compelling circumstances.” Minn. Sent. Guidelines II.D. A decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996).

Dispositional Departure

Appellate courts do not generally interfere with a district court’s decision to depart downward. State v. Donnay, 600 N.W.2d 471, 473 (Minn.App.1999), review denied (Minn. Nov. 17,1999). The general rule is that probation may be imposed in lieu of an executed sentence when the defendant is particularly amenable to probation. See State v. Love, 350 N.W.2d 359, 361 (Minn.1984). Concomitantly, a finding that a defendant is “unamenable to correction by imprisonment” can support a departure. State v. Malinski, 353 N.W.2d 207, 209 (Minn.App.1984) (citing State v. Heywood, 338 N.W.2d 243 (Minn.1983)), review denied (Minn. Oct. 16, 1984). Amenability to probation may alone support a departure, but “a finding of amenability to probation is not- a prerequisite.” Donnay, 600 N.W.2d at 474 (emphasis in the original). The so-called “Trog factors” aid the district court in determining amenability to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn.1982). They include age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family. Id.

The district court considered the Trog and other factors in deciding the appropriate disposition. It specifically found that the Trog factors militated toward probation and that Gebeck was amenable to probation and treatment. The district court opined that probation provided greater leverage to assure Gebeck’s success in rehabilitation.

The record supports Gebeck’s amenability to treatment. Her discharge summary from the treatment program in July 2000 is very optimistic, noting Gebeck’s abstinence, investment in the treatment process, receptivity to feedback and challenges, and giving a great deal of thought and effort to assignments. Gebeck’s experience in treatment indicates that she is “observably yielding, easily managed,” and has an apparent “motive to reform.” These characteristics also suggest amenability to probation. See Malinski, 353 N.W.2d at 210.

Under the district court’s conditions of probation, every year for ten years, Ge-beck will face periods of incarceration or community service, and every day, she will face a six-year sentence if she decides to drink and drive again. The probation thus provides the district court with greater leverage to assure her success and the public’s safety. See State v. Dokken, 487 N.W.2d 914 at 918 (Minn.App.1992) (stating that greater leverage for treatment was available through strict terms of probation rather than execution of presumptive sentence). The district court’s decision to make a downward dis-positional departure was not an abuse of discretion. Therefore, we affirm.

Durational Departure

“[A]s to duration, a sentencing court must ‘analyze the act as compared with other acts constituting the same offense.’” State v. Behl, 573 N.W.2d 711, 713 (Minn.App.1998), review denied (Minn. Mar. 19, 1998) (quoting State v. Herrmann, 479 N.W.2d 724, 728-29 (Minn.App.1992), review denied (Minn. Mar. 19, 1992)). Here, the district court ordered an upward durational departure (1.5). The district court specifically stated that the “upward departure was made to ensure that Gebeck has sufficient threat of incarceration that she will honor every term of her 10-year probation.” The district court later in its decision also stated: “To the extent that driving the wrong way at 85 miles per hour with a .25% blood alcohol reading may justify an upward departure, that departure up to a six year term is granted.”

Other criminal-vehicular-homicide cases with similar aggravating factors have justified a durational departure. See, State v. Anderson, 356 N.W.2d 453, 454 (Minn.App.1984) (defendant’s egregious conduct included driving at excessive speed under influence of six or seven “rum cokes” and five beers and leaving scene of accident). In State v. Chaklos, 528 N.W.2d 225 (Minn.1995), the court-identified several factors that would “objectively justify” a departure in a criminal-vehicular-homicide case: a very high alcohol concentration, driving without insurance, and trying to pin blame for the offense on someone else. Id. at 228 n. 2. The Chaklos court also noted that “the fact that the conduct of defendant indirectly but significantly affected the victim’s daughter by depriving her of a mother” was also an aggravating factor. Id. Here, the district court’s durational departure was not an abuse of discretion. Therefore, we affirm.

DECISION

Because the criminal-vehicular-homicide statute does not require that the state complete the laboratory analysis phase of the blood testing within two hours of driving, Gebeck’s conviction is affirmed. Because the sentencing court had sufficient reasons to depart dispositionally and dura-tionally from the 48 month presumptive sentence for criminal vehicular homicide, Gebeck’s sentence is affirmed.

Affirmed.


author: AMUNDSON, Judge.

text:
    WALSER AUTO SALES, INC., et al., Appellants, v. CITY OF RICHFIELD, et al., Respondents.
    No. C4-01-694.
    Court of Appeals of Minnesota.
    Nov. 13, 2001.

      Bradley J. Gunn, Leonard, Street & Deinard; and Bruce D. Malkerson, Malk-erson Gilliland & Martin, LLP, Minneapolis, for appellants.
    John M. LeFevre, Jr., Kennedy & Graven, Chartered, Minneapolis, for respondents.
    . Susan L. Naughton, League of Minnesota Cities, Minnesota NAHRO, St. Paul, for amicus curiae.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE, Judge, and AMUNDSON, Judge.
   OPINION

AMUNDSON, Judge.

Appellants challenge the use of tax-increment financing to fund a redevelopment project. After a court trial, the district court dismissed appellants’ complaint and awarded respondents attorney fees. On appeal, appellants allege that the project is defective because (a) the primary beneficiary of the project is a private interest; (b) respondents failed to make adequate efforts to inspect the properties deemed substandard; .(c) the record does not support the determinations that the properties in the area were structurally substandard; and (d) the alleged structurally substandard buildings were not reasonably distributed throughout the tax-increment-financing district. Appellants also allege that they have standing to chahenge the use of tax-increment financing and that the district court abused its discretion in awarding respondents attorney fees.

FACTS

This case involves the use of tax-increment financing (TIF) for the development of a new corporate headquarters for Best Buy Co., Inc. (Best Buy). Appellants Wal-ser Auto Sales, Inc.; Robert J. Walser; Motorworks, Inc.; Paul Walser; and Andrew Walser (collectively “Walser”) were the owners or operators of two automobile dealerships on an approximately seven-acre parcel of land located in the City of Richfield, in the northeast quadrant of I-494 and Penn Avenue. The Richfield Housing and Redevelopment Authority (HRA) is a housing and redevelopment authority created in 1974 pursuant to chapter 469 of the Minnesota Statutes.

In June 1993, the city and the HRA (cohectively “respondents”) consolidated previous redevelopment projects and prospective development property under one plan: the Redevelopment Plan for the Richfield Redevelopment Project Area (the 1993 plan). This plan encompassed approximately 90% of the city, but did not include the land at issue here. As the result of a proposal by CSM Properties (CSM) that called for the development of a hotel, office buildings, townhomes, an apartment building, a restaurant, and an upscale auto dealership to be owned by Walser, respondents, in 1998, sought to expand the 1993 plan to include the area in dispute, known as the Interchange West Area. Because the CSM proposal called for the use of TIF, the city was required to establish an appropriate TIF district. The city then established the Interchange West and Lyndale Gateway Tax-Increment-Financing District (the TIF district), which included 74 residential properties and 16 commercial properties, including the Wal-ser property, in the area bounded by 1-494 to the south, 76th Street to the north, Penn Avenue to the west, and Knox Avenue to the east.

To qualify the property as a redevelopment TIF district, respondents needed to show that more than 50% of the buildings within the district were “structurally substandard.” Minn.Stat. § 469.174, subd. 10(a)(1) (2000). The city retained the architectural firm YHR Partners (YHR) to investigate the condition of the residential properties and Tom Goodoien, an inspector familiar with TIF evaluations, to investigate the commercial properties.

At the beginning of the investigation, YHR noted that the properties in the district generally appeared to be in good condition and could not “by any means, be classified as ‘run down.’ ” Because “the desired results” may not have been produced by using only standard condition-assessment methodology, YHR recommended an “alternative approach.” Under the alternative approach, buildings were assessed using a “life cycle” or depreciation analysis that presumed a limited life span of major building components and estimated the cost of replacing items at the end of their projected life span as compared with the cost of replacing the entire building. YHR had never used the “life cycle” approach before.

After the city agreed to this approach, YHR began assessing the subject properties. The HRA sent out a batch of letters to the property owners requesting permission to enter the properties to inspect them. After explaining that establishment of a TIF district is a prerequisite to “redevelopment of the area,” the letters stated:

One of the steps in the process of creating a [TIF district] is the evaluation of the physical condition of the buildings in the area. YHR * * ⅝ will be looking at the houses and apartments in the area. The condition of the buildings will be determined by outside observation together with a review of public records such as building permits. However it is beneficial if the interior of a building can be looked at as well. We are required to make an attempt to enter each building. However, interior evaluations are voluntary.

The letters went on to note that the evaluations would only be used to help determine the type of TIF district that would be created. In closing, the letters noted that follow-up letters would be sent out in a week and that if no response was received within a week of the second letter, the city would “assume” the property owner was “not interested.” The follow-up letter was a simple reminder that again noted the voluntary nature of the interior evaluations. Although respondents received only 15 responses, neither YHR, the city, nor the HRA made any phone calls to the property owners. In every other TIF project on which YHR had worked, numerous follow-up phone calls had been made to attempt to obtain permission to inspect the interior of each property.

Because of the low number of responses received, YHR inspected the interiors of only 20% of the buildings it evaluated. The rest were evaluated by viewing them without setting foot on the property (i.e., from the street) and by reviewing other sources, including county assessor tax information, building-permit information, property-transfer records, and maps. The inspectors did not review fire or police inspections or any other on-site reports for the properties.

Ultimately, YHR found 91% of the buildings to be structurally substandard. This finding was substantially based on the fact that the buildings were not insulated in conformance with the standards for new construction in the current Minnesota Energy Code (the energy code). Most of the determinations regarding these energy code violations were made without interior inspections. In order to determine whether the buildings satisfied current energy standards, YHR extrapolated from the information they gathered in the 15 residential buildings that they were actually able to inspect. In contrast, YHR failed to similarly extrapolate on data tending to raise the estimated value of the homes. For example, all 15 interior-inspected homes were found to have upgraded cabinetry. Yet YHR assumed that none of the remaining homes had similarly upgraded cabinetry. Neither YHR, the city, nor the HRA sent copies of their reports to homeowners so that any errors might be corrected.

Based on the YHR report (and Goo-doien’s report incorporated therein), the HRA recommended approval of the TIF Plan. In June 1999, the city adopted the findings in the YHR Report and, in reliance thereon, determined that more than 50% of the buildings in the proposed TIF district were “structurally substandard.” The city then approved the TIF district. At the same time, the city adopted a Modification to the Redevelopment Plan for the Richfield Redevelopment Project Area (the 1999 plan modification), which added the Interchange West Area and the CSM-proposed structures to the 1993 plan, and adopted the related tax-increment-financing plan (the TIF plan) to serve as a funding source for implementing the 1999 plan modification.

Shortly after the city modified the 1993 plan for CSM, CSM abandoned its proposal. Consequently, the HRA began negotiations with Best Buy for the construction of a new corporate headquarters in the TIF district. Eventually Best Buy and the city reached an agreement to build a 1.5 million-square-foot office facility in the Interchange West Area. In August 2000, the HRA began condemnation proceedings against Walser that resulted in the district court granting a quick-take condemnation over Walser’s objection. Walser appealed, and we recently affirmed. Housing & Redev. Auth. in and for the City of Richfield v. Walser Auto Sales, Inc., 630 N.W.2d 662 (Minn.App.2001), review granted (Minn. Sept. 25, 2001) (Walser I).

Contemporaneous with the initiation of the condemnation proceedings, Walser simultaneously filed an action challenging the use of tax-increment financing for the development. The complaint stated five causes of action. In count I, Walser challenged the collection of tax increment by challenging the inclusion and retention of parcels of property within the TIF district. Specifically,. Walser challenged the city’s determination that buildings in the TIF district were “structurally substandard,” alleging that: (a) the city and HRA failed to use their best efforts to obtain permission for interior inspections; (b) the methodology employed to arrive at the determination was flawed and result-oriented; and (c) that the structurally substandard buildings were not reasonably distributed throughput the TIF district. In count II, Walser challenged the collection of tax increment by challenging the city’s findings that, “but for” the creation of the TIF district, the subject properties would not be developed. In count III, Walser challenged the expenditure of the revenue for the project as not being authorized by Minn.Stat. § 469.176 (2000). In count IV, Walser challenged the expenditure of public funds for a predominantly private purpose. In count V, Walser challenged the proposal as unlawfully speculative and conditional under the terms of the agreement, and because the environmental-review process had not been completed.

The city and the HRA moved for summary judgment with respect to each of Walser’s claims, arguing that Counts I and II were not authorized under Minn.Stat. § 469.1771, subd. 1 (1990), and that there was no improper conduct in the creation of the TIF district or the proposed expenditure of TIF funds. Reserving its ruling on this motion, the court held a bench trial on December 26 and 27, 2000.

On January 19, 2001, the court dismissed the Walser complaint in its entirety as a matter of law, finding that there was a reasonable factual basis in the record to sustain the city’s findings in support of the TIF district and the establishment of the TIF plan, and that Walser did not, as a taxpayer, have standing to maintain a cause of action for counts I and II. Shortly thereafter, the court granted the city’s and HRA’s motion for attorney fees and costs as the prevailing parties pursuant to Minn. Stat. § 469.1771, subd. 1(a) (2000). This appeal followed.

ISSUES

I. Do citizen taxpayers have standing to challenge the inclusion of property within a tax-increment-financing district for districts formed before May 15, 2000?

II. Does a citizen-taxpayer have standing to challenge the retention of property within a tax-increment-financing district?

III. Is a district court’s conclusion that a particular expenditure was for “a public purpose” sufficient to satisfy requirement that all public expenditures be primarily for a public purpose?

IV. Was a redevelopment-tax-increment-financing district properly established in this case?

ANALYSIS

I.

Counts I and II of the complaint allege that property was improperly included or retained in the TIF district as modified. The Minnesota statutes in effect at the time the TIF district was created prohibited the improper inclusion or retention of property within a TIF district. Minn.Stat. § 469.1771, subd. 2 (1990). Nevertheless, the district court determined that MinmStat. § 469.1771 (1990) did not contemplate a private cause of action for violations of subdivision 2 of that statute. Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. Cty. of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Minn.Stat. § 469.1771, subd. 1(a) (1990) provided that owners

of taxable property located in the city * * ⅜ in which the tax increment financing district is located may bring suit for equitable relief or for damages, as provided in subdivisions 3 and I, arising out of a failure of a municipality or authority to comply with the provisions of sections 469.174 to 469.179, or related provisions of this chapter.

(Emphasis added.) When a statute, read according to ordinary rules of grammar, is unambiguous, that plain language is followed. Boatwright v. Budak, 625 N.W.2d 483, 485-86 (Minn.App.2001), review denied (Minn. July 24, 2001). Ambiguity only arises when the statutory language is subject to more than one reasonable interpretation. Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999).

The phrase “as provided in subd. 3 and 4” is set off by commas immediately following the phrase “for equitable relief or for damages” and constitutes an appositive. The Minnesota Supreme Court has held that appositive phrases set off by commas should be construed to modify only the immediately preceding noun, pronoun, or clause, “unless it is clear that it was intended to apply to subsequent matter.” Dahlberg v. Young, 231 Minn. 60, 66-67, 42 N.W.2d 570, 575 (1950) (emphasis omitted). But application of the appositive rule does not always result in an unambiguous phrase because the object of the appositive is not always clear. Compare State v. Bauman, 552 N.W.2d 576, 577-78 (Minn.App.1996) (absent evidence of contrary legislative intent, statute was construed so that proviso modified immediately preceding noun), review denied (Minn. Nov. 20, 1996) with Pickands Mather & Co. v. Comm’r of Revenue, 334 N.W.2d 155, 163 (Minn.1983) (“We think, however, within the context of this statute, that the concluding phrase ‘or any other law’ * * * modifies the entire preceding portions of the subdivision rather than merely the immediately preceding clause.”) (emphasis omitted). Here, because we see no clear indication as to whether the phrase “as provided in subdivisions 3 and 4” modifies just “damages” or both “damages” and “equitable relief,” application of the rules of grammar does not result in unambiguous language.

In interpreting ambiguous language, the intention of the legislature may be ascertained by considering, among other matters: (l)[t]he occasion and necessity for the law; (2)[t]he circumstances under which it was enacted; (3)[t]he mischief to be remedied; (4)[t]he object to be attained; (5)[t]he former law, if any, including other laws upon the same or similar subjects; (6)[t]he consequences of a particular interpretation; (7)[t]he contemporaneous legislative history; and (8)[l]egislative and administrative interpretations of the statute.

Minn.Stat. § 645.16 (2000). Walser argues that the legislative history shows that subdivision 1 was intended to provide equitable relief for any violation of the tax-increment statute, but limit damages to violations of subdivisions 3 and 4. But review of the legislative history of the 1990 statute reveals only that the legislature intended broad-based grounds for taxpayer enforcement of the TIF statute and does nothing to illumine the specific issue at hand. Indeed, even Walser’s proposed construction does not give citizens plenary enforcement power. Knowledge that the legislature sought to grant citizens the power to enforce the TIF laws does not itself answer how that goal was to be achieved.

Respondents ask us to apply the doctrine of expressio unius est exclusio alterius. Because Minn.Stat. § 469.1771, subd. 1 (1990), mentions subdivisions 3 and 4, yet omits subdivision 2, they conclude that subdivision 2 was outside the embrace of citizen-taxpayer enforcement. This maxim, however, fails to resolve the ambiguity because Walser has argued that this exclusion is limited to suits for damages and does not apply to suits for equitable relief. While the doctrine may help answer the question, “is subdivision 2 excluded?,” it does not answer the question, “from what is subdivision 2 excluded?”

The omission of subdivision 2 from the citizen-taxpayer enforcement provision may have been, as respondents admit, nothing more than a drafting error. Though in interpreting an act to ascertain and accomplish the legislative purpose, “obvious mistakes and omissions may be corrected or supplied,” Mankato Citizens Tel. Co. v. Comm’r of Taxation, 275 Minn. 107, 112, 145 N.W.2d 313, 317 (Minn.1966) (citation omitted), respondents’ admission does not by itself transform an ambiguous phrase into an obvious mistake. We do not find the conclusion that the legislature made a mistake to be “obvious.”

Respondents argue that, even assuming this were nothing more than a drafting error, this court should not “correct” that error because the legislature already has done so, and has thus prescribed how it was done. Shortly after the formation of the TIF district, the legislature modified the statute to read:

The owner of taxable property located in the city ⅜ * ⅜ in which the tax increment financing district is located may bring suit for equitable relief- or for damages, as provided in subdivisions 2, 3, and ⅛, arising out of a failure of a municipality or authority to comply with the provisions of sections 469.174 to 469.179, or related provisions of this chapter.

Minn.Stat. § 469.1771, subd. 1(a) (2000) (emphasis added). This modification came ten years after the preceding version of the TIF Act was passed and was enacted in response to an unpublished opinion of the federal district court that construed the 1990 version as excluding taxpayer suits for violation of subdivision 2. See Nielsen v. City of Roseville, No. 98-1625 (D.Minn.1999).

Respondents suggest that the legislative response to the Nielsen decision amounts to a modification of the law. But does this interpretation comport with respondents’ own admission that the omission of subdivision 2 in the 1990 statute was likely nothing more than a drafting error? In contrast, Walser suggests that the 2000 legislature was, in effect, merely correcting the Nielsen court and the drafting error in the 1990 statute. Indeed, where the legislature’s intent is difficult to ascertain, a subsequent amendment must not necessarily be read as an intent to change the existing law. See State v. Andrews, 297 Minn. 260, 263-64, 212 N.W.2d 863, 865 (1973) (declining to construe the deletion of a statutory clause as a change in the law, where another explanation was equally probable). But what explains the legislature’s decision not to specifically apply the remedial statute retroactively?

Unlike the amorphous legislative intent in Andrews, here the intent is clear. The legislative history of the 2000 amendment indicates that the legislature had the option of applying the amendment retroactively, but instead applied it prospectively. Even if the legislature intended to merely correct its oversight, its chosen method was to change the law. Accordingly, the district court did not err in concluding that Minn.Stat. 469.1771, subd. 1 (1990), did not include a private cause of action for the inclusion or retention of property within a TIF district.

II.

Walser claims that not only did the city err in including certain properties within the TIF district, but also that the city erred in retaining those properties. Minn. Stat. § 469.1771, subd. 2 (2000), provides for a taxpayer enforcement suit if the city “includes or retains a parcel of property in a tax increment financing district that does not qualify for inclusion or retention within the district.” (Emphasis added.)

Respondents argue that because the 2000 statutory amendment was prospective, it should also be applied prospectively with regard to retention. But prospective application of the 2000 amendment simply means that violations occurring after the amendment are actionable. As the retention of the property continued past the effective date of the 2000 amendment, prospective application grants Walser a right to sue for improper retention of property.

Respondents next argue that the retention of the allegedly non-qualifying properties was an ongoing effect of the earlier violation. In effect, respondents argue that the legislature’s drafting error not only abrogated Walser’s right to enforce the statute that limits the creation of a TIF district, but also that this error carries its effect over into the retention of illegally-retained properties. Respondents cite absolutely no law in support of this interpretation. Minn.Stat. § 469.1771, subd. 2 (2000) explicitly includes both inclusion and retention within the taxpayer’s-suit provision. When possible, we construe laws to give effect to all their provisions. Minn.Stat. § 645.16 (2000). We cannot omit the clause “or retains” from the statute.

III.

Walser’s fourth claim alleges that the contemplated expenditure of revenues from the TIF district was unlawful because it did not primarily serve a public purpose. Public money may only be expended for public purposes. Port Auth. of St. Paul v. Fisher, 269 Minn. 276, 294, 132 N.W.2d 183, 196 (1964). If “the primary object is to promote some private end, the expenditure is illegal, although it may incidentally also serve some public purpose.” Id. at 288, 132 N.W.2d at 192 (emphasis omitted). Likewise, “[t]he mere fact that some private interest may derive an incidental benefit from the activity does not deprive the activity of its public nature if its primary purpose is public.” Visina v. Freeman, 252 Minn. 177, 184, 89 N.W.2d 635, 643 (Minn.1958).

Here, the district court found that the contemplated expenditure served a public interest. But the key question here is not whether the public interest was served, but rather which purpose is the primary purpose. The district court’s findings that the proposed expenditures were for “a public purpose” (emphasis added) because they would be used for land acquisition and public improvements pursuant to Minn.Stat. § 469.002, subd. 14 (2000), is tautological and only begs the question of whether the public purpose is primary. The fact that the expenditures are authorized expenditures under the TIF act does not mean that they primarily serve a public purpose. There is no evidence that the TIF act has abolished the requirement that public expenditures must primarily be for public purposes. Because the district court applied the wrong standard and failed to make comparative findings, we are unable to review the district court’s decision on this issue and, of necessity, remand for comparative findings.

IV.

The district court alternatively concluded that the record at trial established that the creation of the TIF district was lawful in all respects. It was not. The record shows that several aspects of the TIF-district creation were fundamentally flawed.

“Best Efforts”

The legislature has directed that the city may not determine whether a property is structurally substandard without an interior inspection of the property, unless, inter alia, “the municipality or authority is unable to gain access to the property after using its best efforts to obtain permission from the party that owns or controls the property.” MinmStat. § 469.174, subd. 10(c) (2000) (emphasis added).

Respondents argue that the two letters they sent out constituted “best efforts,” but such a conclusion would give a very strange meaning to the imperative. Respondents’ letters merely stated that they were requesting a voluntary inspection as part of an assessment of “what type” of city redevelopment was to be created. They gave property owners one week to respond. After respondents mailed a cursory second letter giving property owners another week to respond, non-responding property owners were presumed to “not be interested.” Respondents made no further efforts to contact the residents even though their approach resulted in only 20% of the buildings being inspected. No phone calls were made, although such practices are typical in TIF projects. No doors were knocked, despite the fact that the area to be inspected was quite small.

If the question posed by Minn.Stat. § 469.174, subd. 10(c), was, as indicated by respondents, whether or not the city made “an effort,” clearly the city’s methodology would have been sufficient. But the statute specifically requires “best efforts.” “Best” is defined as “surpassing all others in excellence, achievement, or quality: most excellent.” The American Heritage Dictionary 178 (3rd ed.1996). The fact that other, more thorough, methods were readily available, and were often used in other TIF districts, combined with the fact that the city’s methodology only achieved a 20% success rate, is powerful evidence that “best” efforts were not utilized.

Respondents argue that there is no specific requirement in the statute to make phone calls, but they miss the point. The statute also does not state that sending two brief letters with two-weeks’ total response time is sufficient either. The statute requires “best” efforts, and the efforts needed to satisfy that standard are substantially more than what respondents gave.

Distribution of the Buildings

To qualify as a redevelopment district under Minnesota law, the structurally substandard buildings must be “reasonably distributed throughout the district.” Minn.Stat. § 469.174, subd 10(a). The city’s determination with regard to this factor is quasi-judicial, which is reviewed to determine whether the city “erred as a matter of law, issued a decision unsupported by substantial evidence, or acted arbitrarily or capriciously.” Soo Line R.R. Co. v. City of Minneapolis, 625 N.W.2d 834, 838 (Minn.App.2001) (quotation omitted).

Here, even a cursory review of the exhibits submitted reveals that the allegedly substandard properties were not “reasonably distributed” throughout the district at all. All of the allegedly substandard buildings were located in the north 60% of the district. Furthermore, these two groups of properties are easily distinguishable. While the northern properties were mostly residential homes and apartments, the southern properties were all large businesses with frontage on 1-494. 77th Street, which divides the northern portion from the southern, is a clear dividing line between these two groups of properties. Almost all of the structures north of 77th street were determined to be substandard. Very few allegedly substandard properties were south of 77th street — all of which were on the north side of blocks between 1-494 and 77th street with frontage on 77th street, and not 1-494. The fact that inclusion of certain property may increase the value of a redevelopment district does not excuse the requirement that structurally substandard properties be reasonably distributed throughout the district.

Methods for Determining Conditions of Buildings

As noted, in order for the Interchange West Area to be designated as a redevelopment TIF district, more than 50% of the buildings in the district must be “structurally substandard to a degree requiring substantial renovation or clearance.” Minn.Stat. § 469.174, subd. 10(a)(1) (2000). “Structurally substandard” is defined as:

containing defects in structural elements or a combination of deficiencies in essential utilities and facilities, light and ventilation, fire protection including adequate egress, layout and condition of interior partitions, or similar factors, which defects or deficiencies are of sufficient total significance to justify substantial renovation or clearance.

Minn.Stat. § 469.174, subd. 10(b) (2000). Walser challenges the methodology used by respondents to determine that buildings were structurally substandard.

A building is not structurally substandard if it is in compliance with the building code applicable to new buildings or could be modified to satisfy the building code at a cost of less than 15 percent of the cost of constructing a new structure of the same square footage and type on the site. The municipality may find that a building is not disqualified as structurally substandard under the preceding sentence on the basis of reasonably available evidence, such as the size, type, and age of the building, the average cost of plumbing, electrical, or structural repairs, or other similar reliable evidence.

Minn.Stat. § 469.174, subd. 10(c) (emphasis added). Even if a municipality has used its best efforts to gain access to a property, those properties that do not receive interior inspections may not be determined to be structurally substandard unless “the evidence otherwise supports a reasonable conclusion that the building is structurally substandard.” Id.

YHR conducted the structurally substandard analysis for the residential properties. As noted, YHR initially noted that the properties were generally in good condition and that the standard methodology for determining whether structures were structurally substandard would not achieve the “desired results.” After consulting with the city, YHR then proceeded to employ an alternative approach involving life-cycle or depreciation analysis. The city adopted YHR’s findings resulting from this analysis. Although an extensive review of YHR’s methods may not be necessary, certain errors are readily apparent.

First, although Minn.Stat. § 469.174, subd. 10(c), specifically provides a mathematical formula for determining, for certain, when a building is not structurally substandard, YHR flipped this guideline around; every property that the statutory formula did not specifically except from those potentially structurally substandard was determined to be structurally substandard. There is no legal basis for this methodological assumption.

Second, in assessing the code deficiencies of properties without interior inspections, YHR extrapolated from the results of the 15 homes that they actually inspected, to determine the condition of the remaining homes. At the same time, in determining the homes’ replacement costs, YHR did not employ similar extrapolations to determine how many of the uninspected properties had certain improvements.

Third, YHR selected a depreciation model that resulted in cost estimates for the same items varying wildly between homes and were overstated as compared with actual costs. YHR’s analysis also contained numerous mathematical and depreciation flaws. The numerous flaws in the data considered by YHR resulted in the district court doubting the accuracy of YHR’s replacement values as too low and their estimates of the cost of corrections to the code violations as too high.

Fourth, an overwhelming majority of the cost of code compliance consisted of the cost of compliance with the energy code. The unrebutted testimony of several experts, including one of YHR’s own consultants was that violations of the energy code were not “structural.” While the energy code may be sound public policy, the determination of whether energy code deficiencies should be included in the consideration of whether a property is “structurally substandard” is a matter of statutory construction, a question of law reviewed de novo. Brookfield Trade Ctr., 584 N.W.2d at 393. There is absolutely no basis for concluding that substandard insulation is a structural deficiency or a deficiency “in essential utilities and facilities.” See Minn. Stat. § 469.174, subd. 10(b) (defining “structurally substandard”). Furthermore, consideration of modern insulation standards as a component of whether a building is structurally substandard might result in all but the most modern homes being determined to be “structurally substandard.” Accordingly, consideration of the energy code in determining whether properties were structurally substandard within the meaning of Minn.Stat. § 469.174, subd. 10 was error.

Fifth, when considering uninspected properties, the TIF act provides that evi-dentiary items that support a finding that a building is structurally substandard include “recent fire or police inspections, on-site property tax appraisals or housing inspections, exterior evidence of deterioration, or other similar reliable evidence.” YHR did not review any such documents or other similar reliable evidence.

When viewed as a whole, the methodology employed by YHR for determining whether the subject properties were structurally substandard was rife with inaccuracies. The statute provides several significant layers of protection for municipal taxpayers and property owners, most of which were ignored here. First, the statute strongly advocates interior inspections and alternatively provides that a determination may be made by other evidence “similarly reliable” to common types of interior inspections used to determine the structural adequacy of particular properties. Minn.Stat. § 469.174, subd. 10. Second, the statute prevents gerrymandering of TIF districts by requiring substandard properties to be “reasonably distributed” throughout the district. Minn.Stat. § 469.174, subd. 10(a). Finally, the statute provides a limited definition of what constitutes substandard property.

The actual procedure implemented by the city and HRA consisted of two minimalist contact letters with short turnaround times that resulted in only 20% of the buildings receiving interior inspections. For the remaining 80% of the properties in question, respondents only made a cursory review of some of the less reliable inspection records available and educated guesses about the interior conditions in the homes at issue. Finally, the city conveniently drew the TIF district lines to in-elude the valuable property with 1-494 frontage even though none of the allegedly substandard buildings were found within this region.

Tax-increment financing is a power granted to municipalities by the legislature to be exercised only within the constraints of the legislative fiat. Exhibiting a particular municipal meanness, respondents completely ignored the statutory prerequisites for exercise of this financing tool. The provisions of Minn.Stat. § 469.1771 (2000) are intended to provide a means to ensure that such a blatant disregard for limits on municipal authority will be answerable.

V.

Walser’s claim under Count III is that the expenditure of the TIF funds was in violation of Minn.Stat. § 469.176. The district court concluded that

the TIF funds would be used for land acquisition and public improvements which are authorized uses of TIF funds pursuant to the TIF Act, and consistent with the TIF plan.

Walser has not challenged the dismissal of this count in either of its briefs. Issues not briefed on appeal are waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982).

VI.

Walser challenges the fees awarded to respondents. As the prevailing party in this action, respondents were entitled to reasonable costs and attorney fees under Minn.Stat. § 469.1771. But because we reverse and remand the district court’s decision, the district court’s determination regarding fees- — -premised on its determination of which party prevailed — should also be revisited on remand.

DECISION

The district court erred by dismissing count I and II of the complaint and by applying the wrong standard in dismissing count IV. The district court’s alternate ground for dismissal, that the tax-increment-financing district was created lawfully, was also in'error.

Reversed and remanded.

      . A maxim of statutory interpretation meaning that the "expression of one thing is the exclusion of another.” Black’s Law Dictionary 581 (6th ed.1990) (citations omitted). It is only used where it is first determined that the language is ambiguous. Colangelo v. Norwest Mortgage, Inc., 598 N.W.2d 14, 17-18 (Minn.App.1999), review denied (Minn. Oct. 21, 1999).

      . Although the law neither stated that it should be applied prospectively, nor that it should not be applied retroactively, its effective-date clause stated that the amendment was "effective for violations occurring after [May 15, 2000].” 2000 Minn. Laws, Ch. 490, Art. 11, Sec. 30.

      . As originally introduced, the section of the amendment adding subdivision 2 to section 469.1771 had the following effective date provision: "This section is effective for violations occurring after December 31, 1990.” H.F. 4099, § 16, as introduced (Mar. 13, 2000).

      . As a preliminary matter, respondents argue that Walser is precluded from challenging whether expenditures are for a primarily public purpose by Minn.Stat. § 469.175, subd. 3 (2000), which states:
      Once approved, the determination of the authority to undertake the project through the use of tax increment financing and the resolution of the governing body shall be conclusive of the findings therein and of the public need for the financing.
      Even though Walser is unable to challenge the inclusion of property into the TIF district, this language cannot have the preclusive meaning given to it by respondents. Respondents' construction would effectively eviscerate all taxpayer's rights under Minn.Stat. § 469.1771, subds. 3, 4 (1990, 2000), because if the establishment of the TIF district conclusively determined its legality, then the decisions of any city would be completely insulated from review. The Minnesota Supreme Court has rejected a similar argument, noting that a plaintiff had the right to oppose a municipality’s action and that
      such right would carry with it an attendant right to challenge the adequacy of the evidence upon which the municipality based its findings cannot be seriously questioned, for were the rule otherwise, the statutory restrictions would be completely ineffectual.

        Reilly Tar & Chemical Corp. v. City of St. Louis Park, 265 Minn. 295, 303, 121 N.W.2d 393, 398 (Minn.1963). We think the same wisdom applies here.

      . This inquiry is distinct from the question asked in condemnation proceedings, which is merely whether some evidence exists that the taking serves a public purpose. Walser I, 630 N.W.2d at 669. While we are extraordinarily deferential to a city's determination of whether a particular expenditure serves a primarily public purpose, R.E. Short Co. v. City of Minneapolis, 269 N.W.2d 331, 337 (1978), we note that the city’s discretion is less than that used in condemnation proceedings because, in those cases, the existence of almost any evidence will support a finding of a public purpose. Walser I, 630 N.W.2d at 668. Though deference is still required here, the fact that the district court must employ the more stringent evidentiary standard requiring that the public purpose to be the "primary purpose” means that a greater quantum of evidence is required. Furthermore, not only must the quantity of the evidence considered be greater, but the quality of the analysis must be different. The expenditure of funds requires a comparative approach; that is to say, analysis of which purpose (public or private) is the primary purpose. Compare Visina, 252 Minn. at 184, 89 N.W.2d at 643 (incidental private benefit does not render activity private if primary purpose is public) with Fisher, 269 Minn. at 288, 132 N.W.2d at 192 (incidental public benefit does not change nature of otherwise primarily private act).

      . While respondents argue that great deference should be given to the city's determination of whether "best efforts” were used, they do not articulate why this should be the standard. It is, in fact, broader. The determination of whether or not the city complied with the TIF law does not involve a legislative question. The statute sets out the standard to be applied, and the only question is whether the city complied with the law. Here, the facts surrounding the notification letters and the attempts at interior inspections are not disputed. Application of a statute to the undisputed facts of a case involves a question of law, which is reviewed de novo. Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996).

      . The parties have significantly different conceptions of the applicable standard of review. As the term "structurally substandard" is a statutory provision, complete with a built-in definition and methodology for determining whether a building is structurally substandard, see Minn.Stat. § 469.174, subd. 10 (2000), interpretation of this statute should be reviewed de novo. See Brookfield Trade Ctr., 584 N.W.2d at 393. But the city's consideration of the evidence in light of the statutory mandate is a quasi-judicial function. The in-dicia of quasi-judicial actions are "(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.” Maye v. University of Minnesota, 615 N.W.2d 383, 386 (Minn.App.2000) (quoting Minnesota Ctr. for Envtl. Advocacy v. Metropolitan Council, 587 N.W.2d 838, 842 (Minn.1999)) (citation omitted). This court reviews a city's quasi-judicial decisions to determine whether the city council "erred as a matter of law, issued a decision unsupported by substantial evidence, or acted arbitrarily or capriciously.” Soo Line R.R., 625 N.W.2d at 838 (quotation omitted).