text:
    CITY OF GRANITE FALLS, petitioner, Respondent, v. SOO LINE RAILROAD COMPANY, a/k/a SLRCO and SERCO, et al., Respondents Below, Burlington Northern and Santa Fe Railway Company, a/k/a BNSF, Appellant (A07-417), Twin Cities & Western Railroad Company, a/k/a TC & W, Appellant (A07-418).
    Nos. A07-417, A07-418.
    Court of Appeals of Minnesota.
    Dec. 24, 2007.

      Kevin K. Stroup, Ronald E. Seanor, Stoneberg, Giles & Stroup, P.A., Marshall, MN, for respondent City of Granite Falls.
    David S. Drach, Canadian Pacific Railway, Minneapolis, MN, for Soo Line Railroad Company.
    Glenn J. Olander-Quamme, Spence, Ricke, Sweeney & Gernes, P.A., St. Paul, MN, for appellant Burlington Northern and Santa Fe Railway Company (A07-417).
    Thomas V. Seifert, Head, Seifert & Van-der Weide, Minneapolis, MN, for appellant Twin Cities & Western Railroad Company, a/k/a TC & W (A07-418).
    Susan L. Naughton, League of Minnesota Cities, St. Paul, MN, for League of Minnesota Cities, amicus curiae.
    Lori Swanson, Attorney General, David L. Phillips, Assistant Attorney General, St. Paul, MN, for State of Minnesota.
    Dwayne N. Knutsen, Chippewa County Attorney, Montevideo, MN, for Chippewa County.

      Bradley Y. Larson, Metcalf, Larson, Muth & Fleming, P.C., Monticello, MN, for Lawrence A. Kreger.
    Keith Beito, Granite Falls, MN, pro se.
    Considered and decided by DIETZEN, Presiding Judge; WILLIS, Judge; and HUSPENI, Judge.

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

   OPINION

DIETZEN, Judge.

In this condemnation proceeding, appellant-landowners challenge a district court order denying their motions for summary judgment and finding that the proposed taking is for a public purpose and that the taking is necessary to effectuate the public purpose. Because we conclude that the district court properly applied the law, we affirm.

FACTS

Respondent City of Granite Falls (the city) is a Minnesota municipal corporation located in Chippewa County. Appellants BNSF Railway Company (BNSF) and Twin Cities & Western Railroad Company (TC & W) own property that is the subject of a condemnation petition filed by the city (the subject property). The city seeks to acquire, through exercise of its eminent-domain power, a twenty-five-foot-wide easement over appellants’ railroad rights-of-way. The city’s purpose in acquiring the subject property is to establish “an all-seasons, multi-purpose and non-motorized recreational trail for public use.” But the city has indicated that it will not establish the trail itself; instead, the city intends to convey the subject property to the Minnesota Department of Natural Resources (the DNR), to build and maintain the trail.

The DNR is in the process of establishing similar recreational trails throughout the state pursuant to legislative directives in chapter 85 of the Minnesota Statutes. The subject property will be incorporated into a larger trail that runs the entire course of the Minnesota River, from its headwaters at Big Stone Lake to its confluence with the Mississippi River at Fort Snelling. See MinmStat. § 85.015, subds. 6, 22 (2006) (describing the trail corridor along the Minnesota River).

In July 1998, SRF Consulting Group, Inc. conducted a feasibility study of the subject property, finding that the land was appropriate for a recreational trail. Subsequently, Short Elliot Hendrickson, Inc. (SEH) conducted a preliminary study of the feasibility of constructing a trail along the railroad rights-of-way, including the subject property, and concluded that the trail “can be safely designed and constructed on the railroad right-of-way.” SEH sent a letter to a Minnesota House Committee in March 2001, concluding that the engineering of the trail was feasible. That year, the legislature designated the entire corridor of the Minnesota River Valley as a “state trail,” thereby facilitating state investment in the acquisition, development, construction, and maintenance of trail segments in that corridor. 2001 Minn. Laws 1st Spec. Sess. ch. 2, § 84, at 1208.

In April 2005, the city filed its condemnation petition, which incorporated an earlier city-council resolution authorizing the acquisition of the subject property. The resolution stated that the city “has spent a great deal of time in public meetings and in independent research” regarding the feasibility of extending a recreational trail from Wegdahl to Granite Falls, consistent with the State of Minnesota’s plans to develop a “state trail” along the entire Minnesota River corridor. The city concluded, among other things, that the SEH report confirmed that the trail could be completed along appellants’ existing railroad right-of-way, that a paved trail could be built and used safely by the public, and that the State “would consider bonding for the funds necessary to further plan and acquire, develop, construct and maintain the unfinished corridor between Wegdahl and Granite Falls, if the State were assured that a local unit of government were committed to acquiring the real estate interests necessary to the construction.” The resolution also indicated that the Parks & Trails Council of Minnesota agreed to lend the city up to $75,000, at no interest, for the purpose of acquiring the land necessary for the trail. Finally, the city concluded that completion of the trail “will add to the general well-being of the economic community of the entire river valley” and “will add significantly to retail economic development in downtown Granite Falls.” Thus, the city authorized its attorney to commence negotiations and, if necessary, condemnation proceedings.

During discovery, the city and the DNR admitted that there have been no formal discussions regarding the transfer of the subject property to the DNR or its use as part of the Minnesota River Trail. The DNR stated in response to discovery that it “is currently developing a master plan for the Minnesota River State Trail”; that the draft plan “has not been formally released for public view and the DNR Commissioner has not approved the plan”; and that the subject property “falls within the ‘corridor’ or ‘search area’ for the Minnesota River State Trail identified in the draft plan.”

Following discovery, appellants moved for summary judgment. The district court denied the motions, concluding that the taking was for a public purpose and was necessary and authorized by law, but changed the proceeding from a quick-take condemnation under Minn.Stat. § 117.042 to a standard proceeding under chapter 117. This appeal follows.

ISSUES

1. Did the district court lack subject-matter jurisdiction over the condemnation petition?

2. Is the proposed taking for a public purpose and reasonably necessary to effectuate the public purpose?

ANALYSIS

Appellants challenge the district court order denying their motions for summary judgment, which order concluded that the court has subject-matter jurisdiction over the petition and granted the petition for condemnation. Generally, the denial of a motion for summary judgment is not a final judgment from which an appeal may properly be taken. Minn. R. Civ.App. P. 103.03. But a district court order finding that a proposed taking serves a public necessity is an appealable order. County of Blue Earth v. Stauffenberg, 264 N.W.2d 647, 650 (Minn.1978). The district court’s conclusion that it has jurisdiction over the subject matter of this proceeding — also not a final judgment — is similarly appealable under McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn.1995). The remaining issues raised in the appellants’ briefs are outside the scope of these exceptions, and thus are not properly before this court. See Alexandria Lake Area Serv. Region v. Johnson, 295 N.W.2d 588, 590 (Minn.1980) (“[w]e decline to extend the rule of the Staujfenberg case to situations beyond those involving the issue of public necessity”).

I.

The procedure for condemning property through eminent domain is governed by chapter 117 of the Minnesota Statutes. A condemning authority initiates condemnation proceedings by filing a condemnation petition in district court and a notice of the proceedings with the registrar of titles and/or the county recorder. See Minn. Stat. §§ 117.055, 117.065 (2004). The district court then holds an evidentiary hearing to determine whether the petition should be granted; and approving the public use or public purpose, necessity, and authority for the taking. See Minn.Stat. § 117.075, subd. 1 (2004).

Appellants argue that the city’s failure to strictly comply with the requirements of Minn.Stat. § 117.036 (2004) — which imposes pre-petition appraisal and negotiation requirements on the condemning authority — deprived the district court of subject-matter jurisdiction over the petition. The proper construction of a statute is a question of law that we review de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). The existence of subject-matter jurisdiction is also a question of law. Neighborhood Sch. Coal. v. Indep. Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn.App.1992), review denied (Minn. June 30, 1992).

In the judicial context, “jurisdiction” refers to “[t]he legal power and authority of a court to make a decision.” Black’s Law Dictionary 869 (8th ed.2004). Subject-matter jurisdiction “involves a court’s authority to decide a particular class of actions and its authority to decide the particular questions before it.” Herubin v. Finn, 603 N.W.2d 133, 137 (Minn.App.1999). This concept goes to the heart of a court’s legal authority to decide a case, and unlike personal jurisdiction, the court cannot acquire subject-matter jurisdiction “either by waiver or consent.” Schroeder v. Schroeder, 658 N.W.2d 909, 912 (Minn.App.2003).

A district court acquires subject-matter jurisdiction over an eminent domain proceeding upon the presentation and filing of a proper condemnation petition. Whitely v. Miss. Water Power & Boom Co., 38 Minn. 523, 525, 38 N.W. 753, 755 (1888); Housing & Redevelopment Auth. v. Adelmann, 590 N.W.2d 327, 333 (Minn.1999) (Anderson, Paul H., J., concurring specially). Appellants admit that a petition was properly filed but argue that Minn.Stat. § 117.036 was clearly intended by the legislature to be a jurisdictional prerequisite. We construe the words of this statute according to their plain and ordinary meaning. Minn.Stat. § 645.08(1) (2006); State v. Bluhm, 676 N.W.2d 649, 651 (Minn.2004).

Minn.Stat. § 117.036 provides that condemning authorities, before commencing eminent-domain proceedings to acquire property for “transportation facilities,” shall: (1) obtain an appraisal of the property proposed to be acquired, (2) provide a copy of the appraisal to the landowner, and (3) “make a good faith attempt to negotiate personally with the owner of the property in order to acquire the property by direct purchase instead of the use of eminent domain proceedings.” Appellants argue that strict compliance with this provision is necessary for a district court to acquire subject-matter jurisdiction over a condemnation petition. We disagree.

In Housing & Redevelopment Auth. v. Adelmann, our supreme court considered whether compliance with Minn.Stat. § 117.115, subd. 2, which requires notice of the filing of the commissioners’ report, is a jurisdictional prerequisite to appealing that award. 590 N.W.2d at 330. After noting that “[n]othing in the text of [the statute] states that condemning authorities must strictly comply with [its] requirements before a district court may acquire jurisdiction,” the court held that “strict compliance with [the statute’s requirements] is not a jurisdictional prerequisite.” Id. at 330-31. The court’s reasoning is equally applicable in this ease. Like Adelmann, we see no language in section 117.036 that provides strict compliance with the statute by the condemning authority is required before the court acquires subject-matter jurisdiction.

Appellants argue that State by Lord v. Radosevich supports their position. 249 Minn. 268, 271, 82 N.W.2d 70, 72 (1957) (“[i]t is elementary that the right of appeal under our condemnation proceedings is governed by statute and that, unless the conditions prescribed by statute are observed, the court acquires no jurisdiction”); see also Woodhall v. State, 738 N.W.2d 357, 362 (Minn.2007) (“failure to comply with the statute governing appeals from eminent domain proceedings is a jurisdictional defect”). But Radosevich and Woodhall are distinguishable for two reasons. First, the rule expressed in those cases is limited to appeals from condemnation commissioners’ awards under section 117.145. Neither court addressed the initial filing of the petition, which is at issue here. Second, the supreme court has repeatedly refused to extend this rule to the other sections of chapter 117. See Adelmann, 590 N.W.2d at 330-31 (holding strict compliance with Minn.Stat. § 117.115 is “not a jurisdictional prerequisite”); State by Lord v. Frisby, 260 Minn. 70, 76-77, 108 N.W.2d 769, 773 (1961) (holding that Minn.Stat. § 117.08 is not a “jurisdictional requirement” when the provision “do[es] not declare the consequences of a failure of compliance”). One commentator has noted that “[d]espite the mandatory character of the negotiation requirement, most courts recognize that the requirement is excused where negotiations would be useless or futile.” 6 Julius L. Sackman & David M. Jann, Nichols on Eminent Domain § 24.13[1][b], at 24-204 (3d ed.2002).

In City of Minneapolis v. Wurtele, our supreme court noted that rules of strict compliance “will be relaxed when the condemning authority is public rather than private.” 291 N.W.2d 386, 391 (Minn.1980). The Wurtele court stated:

the law does not mandate in all cases strict and literal compliance with all procedural requirements. Technical defects in compliance which do not reflect bad faith, undermine the purpose of the procedures, or prejudice the rights of those intended to be protected by the procedures will not suffice to overturn governmental action.

Id. But in Manco of Fairmont, Inc. v. Town Bd., we clarified that the substantial compliance doctrine should be restricted to cases in which the statute at issue does not “express[ ] the consequences of a failure to comply with its provisions.” 583 N.W.2d 293, 295 (Minn.App.1998), review denied (Minn. Oct. 20, 1998). Here, the condemning authority is a public entity, and section 117.036 does not express the consequences for failure to comply with its provisions. Thus, we conclude that the substantial compliance doctrine may be applied to the requirements of Minn.Stat. § 117.036. We turn then to examine whether the city substantially complied with the statute.

The district court concluded that the city engaged in some negotiations in 2005 and submitted its appraisal to appellant after filing its petition for condemnation and, therefore, the city substantially complied with the statute. We agree. While noncompliance with the statute does not require that the proceedings be invalidated, the provisions of the statute may not be ignored to the prejudice of the property owner. Frisby, 260 Minn. at 77, 108 N.W.2d at 773. Here, appellants have not asserted that they were prejudiced by the city’s failure, or that the city acted in bad faith. Further, the city introduced unre-futed evidence that efforts to voluntarily acquire the property would have been futile. Thus, the district court did not err in concluding that the city substantially complied with the statute. But we observe that in the proper case, we would not hesitate to approve sanctions against a condemning authority for failure to comply with the statute.

Because we agree the city’s actions substantially complied with the requirements of section 117.036, we do not reach the city’s alternative argument that the recreational trail is not within the class of “transportation facilities” governed by the statute.

II.

Appellants argue that the taking of the subject property for the benefit of the DNR to develop it as a recreational trail is not necessary to effectuate a valid public use.

The Fifth Amendment of the United States Constitution provides in part: “[P]rivate property [shall not] be taken for public use without just compensation.” This restriction on the condemnation of privately owned property is made applicable to the states through the Fourteenth Amendment. See Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). The Minnesota Constitution contains a similar restriction on condemnation in article I, section 13. It provides: “Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” Minn. Const, art. I, § 13.

Before condemning private land, the condemning authority “must determine that there is a public use for the land and that the taking is reasonably necessary or convenient for the furtherance of that public use.” Lundell v. Coop. Power Ass’n, 707 N.W.2d 376, 380 (Minn.2006). Thus, in Housing & Redevelopment Auth. v. Minneapolis Metro. Co., our supreme court stated:

Great weight must be given to the determination of the condemning authority, and the scope of review is narrowly limited. If it appears that the record contains some evidence, however informal, that the taking serves a public purpose, there is nothing left for the courts to pass upon. Courts may interfere only when the [condemning] Authority’s actions are manifestly arbitrary or unreasonable.

259 Minn. 1, 15, 104 N.W.2d 864, 874 (1960). Our scope of review is narrow because the district court gives deference to the determinations of the condemning authority, which are regarded as legislative actions, and the appellate courts give deference to the findings of the district court using the clearly erroneous standard. Lundell, 707 N.W.2d at 381.

A. Public Use

What constitutes a public use under Minn. Const. art. I, § 13 is a judicial decision. City of Duluth v. State, 390 N.W.2d 757, 763 (Minn.1986). But our supreme court has construed the words “public use” broadly. In City of Duluth v. State, the court stated:

Historically, the court has used the words “public use” interchangeably with the words “public purpose,” thus implying that even though a public entity, using its eminent domain powers, turns over parcels to a private entity for use by that private entity, the condemnation will, nevertheless, be constitutional if a public purpose is furthered by such a transfer of land.

Id. Thus, the court authorized the taking even though the governmental entity transferred title and ownership of the property to a private entity to develop it. Id. at 764 (“[a]s long as the predominant purpose being furthered is a public one, the condemnation is constitutional”).

Similarly, in City of Minneapolis v. Wurtele, our supreme court upheld the condemnation of privately held parcels for the construction of a privately owned mall in downtown Minneapolis. 291 N.W.2d at 388-90. The court deferred to the city council determination that a downtown mall was essential to maintaining a viable business district in the city. Id. at 390-91. A public purpose was recognized because there was evidence that the construction of the mall would create permanent and temporary employment, generate retail sales, and increase the tax base of the city. Id. Most recently, in Housing & Redevelopment Auth. v. Walser Auto Sales, Inc., this court affirmed the district court’s finding of public purpose in relation to the taking of property to be transferred to Best Buy Co., Inc. for its construction of a new corporate headquarters. 630 N.W.2d 662, 669 (Minn.App.2001), aff'd, 641 N.W.2d 885 (Minn.2002).

The same principles apply under the federal constitution. In Haw. Housing Auth. v. Midkiff, the United States Supreme Court stated that “it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.” 467 U.S. 229, 244, 104 S.Ct. 2321, 2331, 81 L.Ed.2d 186 (1984). And in Kelo v. City of New London, the Court held that a city may act as a conduit to transfer property from one private entity to another and that the economic rejuvenation caused by such redevelopment “serves a public purpose” and therefore “satisf[ies] the public use requirement of the Fifth Amendment.” 545 U.S. 469, 484, 125 S.Ct. 2655, 2665, 162 L.Ed.2d 439 (2005).

Respondent and amicus curiae League of Minnesota Cities argue that the same reasoning should apply to the city’s intent to acquire the property and transfer it to the DNR for development as a recreational trail. Appellants do not dispute that a recreational trail is a public purpose, but argue that the city lacks the authority, express or implied, to acquire property for the benefit of the DNR. We disagree. Like the private redevelopment projects in City of Duluth, Wurtele, Walser, and Kelo, the condemning authority is acquiring the subject property for a public use. We do not read our takings jurisprudence to make a distinction based on whether the entity that actually develops the property for a public purpose is a public or private entity. Rather, we read existing law to focus on whether the proposed use is public or not. Here, the proposed use is clearly public and not private.

Appellants nonetheless argue that the DNR lacks statutory authority to acquire by eminent domain this specific portion of the state trail system. We agree that the statute does not provide the DNR with the power to condemn this portion of the Minnesota River Trail. Compare Minn. Stat. § 85.015, subd. 22 (describing Minnesota River Trail with no eminent domain authorization), with Minn.Stat. § 85.015, subds. 13(c), 14(c) (authorizing the DNR use of eminent domain for other parts of state trail system). But the statute does not prohibit the DNR from acquiring land from another public entity to be used for a lawful public purpose. Had the legislature intended to prohibit the DNR from acquiring lands from others to develop the recreation trails, it could have done so in the legislation — but it did not. Consequently, we discern no legislative intent to prohibit the DNR from doing so. See id., subd. 1(a) (conferring on the DNR broad authority to “establish, develop, maintain, and operate the trails”).

Appellants next argue that State ex rel. Ford Motor Co. v. District Court, 133 Minn. 221, 158 N.W. 240 (1916), and Opinion of the Minnesota Attorney General 59a-14 (Dec. 30, 1958) support their position. We disagree.

In Ford Motor Co., our supreme court held that the City of Minneapolis could not use eminent domain proceedings to acquire land with the intention of conveying the land to a railroad company for purposes of building a switching track. 133 Minn. at 229, 158 N.W. at 244. At that time, the City of Minneapolis had “authority to condemn private property for streets and alleys but not for a railroad right of way.” Id. at 223, 158 N.W. at 241. Thus, the court concluded that the ultimate purpose for which the land would be used was beyond Minneapolis’s condemnation authority. Now, 91 years later, the city un-disputably does have authority to condemn private property for a public recreation area. Minn.Stat. § 465.01 (2004). Unlike in Ford Motor Co., then, the proposed use of the property is within the city’s condemnation authority.

Appellants’ reliance on a 49-year-old attorney general opinion is similarly misplaced. The 1958 opinion at issue was prompted by the City of Thief River Falls questioning whether it could condemn a tract of land for the purpose of “conveying the same to the State of Minnesota Department of Highways for the construction of [a] roadside parking area and historic monument.” Op. Att’y Gen. 59a-14 (Dec. 30, 1958). The attorney general answered in the negative, concluding that Minnesota law authorizes municipalities to condemn land for “municipal purposes only,” and that the proposed condemnation was “not for municipal but for state purposes” because the city was acting “as a mere conduit for the transfer of the property to the state.” Id. (emphasis in original).

Although the attorney general’s opinion may have been correct in 1958, the law of eminent domain has changed to such a degree that the conclusion no longer appears tenable. Under City of Duluth, Wurtele, Walser, and Kelo, municipalities currently have the authority to acquire property and transfer it to a private entity for redevelopment. Thus, the district court did not err in concluding that the taking satisfies the constitutional public-use requirement.

B. Necessity

Appellants argue that the proposed taking is speculative and is not necessary. “[I]n all eminent domain cases in this state, necessity, as well as public purpose, must be shown.” City of Duluth, 390 N.W.2d at 764. The condemning authority is “not required to show an absolute or indispensable necessity, but only that the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.” City of Pipestone v. Halbersma, 294 N.W.2d 271, 274 (Minn.1980) (quotation omitted). “To overcome a condemning authority’s finding of necessity there must be overwhelming evidence that the taking is not necessary.” Lundell, 707 N.W.2d at 381.

The district court concluded that the taking was reasonably necessary and convenient for the public purpose of developing a recreational trail. We agree. Appellants rely heavily on Regents of the Univ. of Minn. v. Chicago & Nw. Transp. Co., 552 N.W.2d 578 (Minn.App.1996), review denied (Minn. Nov. 20, 1996). In Regents, we stated that “[s]peculative purposes will not support the assertion of necessity,” and held that the University’s proposed condemnation was not necessary because it was for speculative, “stockpiling” purposes. Regents, 552 N.W.2d at 580 (quotation omitted). Our conclusion was based on the following facts:

First, ... the University has not included this property on its master plan for its anticipated development of the Twin Cities campus. Second, although the University claims to have at least three potential uses for the land, the uses are mutually exclusive, and the Board of Regents has not yet approved a single project for the property. Finally, because of soil contamination problems, it is undisputed that the University could not currently use the property for any of its proposed uses. The parties have not yet agreed on a remediation plan; decontamination of the property will require from approximately two to seven years to complete. At least one University official has described the time period before the University would use the property as “potentially indefinite.”

Id. We have subsequently clarified that “necessity cannot be thwarted by alleging that ... the purpose for condemning the property is too speculative if in fact the project is officially supported by the governmental entity and ordinary agreements are in place to realize the project.” In re Condemnation by Minneapolis Cmty. Dev. Agency (MCDA), 582 N.W.2d 596, 597 (Minn.App.1998) (syllabus by the court), review denied (Minn. Oct. 29, 1998). Moreover, we have stated that “[t]he rule established in Regents ... is limited by the extreme facts present in that controversy.” Itasca County v. Carpenter, 602 N.W.2d 887, 890 (Minn.App.1999).

We do not find similarly extreme facts in this case. Here, the city is acting pursuant to two engineering studies. These studies concluded that the land was appropriate for a trail, and that the plan was feasible. The DNR has indicated that the proposed trail is within the corridor identified in its draft plan. The city has secured funding to compensate appellants for their damages. And perhaps most importantly, during the 2007 session, the legislature passed an amendment to MinmStat. § 85.015, subd. 22 (2006), directing that a trail segment “shall be established connecting the cities of Granite Falls and Montevideo.” 2007 Minn. Laws ch. 131, art. 1, § 16, at 1066. The trail already exists from Montevideo to Wegdahl — -the segment at issue here would connect to the existing trail at Wegdahl and complete the segment from Granite Falls to Montevideo, as directed by the amendment. Given these facts, we cannot say that there is overwhelming evidence showing that the city’s decision to condemn the subject property is not necessary or convenient to further a public purpose. Thus, we affirm the district court’s conclusion that the taking is necessary.

DECISION

Because the city’s failure to strictly comply with the requirements of Minn.Stat. § 117.036 (2004) did not deprive the district court of subject-matter jurisdiction over this case, and because there is evidence in the record to support the district court’s conclusion that the taking is necessary to further a public purpose, the district court did not err in denying appel-¡ants’ motions for summary judgment and granting the city’s petition.

Affirmed.

      . The contents of a proper petition are prescribed in Minn.Stat. § 117.055 (2004). Appellants do not challenge the petition’s compliance with that section.

      . Although not directly bearing on this case, we note that this section has since been amended to govern all condemnation petitions filed under chapter 117. 2006 Minn. Laws ch. 214, § 5, at 198.

      . "Opinions of the Attorney General are not binding on the courts,” Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 289 (Minn.2004), although they “are entitled to careful consideration.” Billigmeier v. County of Hennepin, 428 N.W.2d 79, 82 (Minn.1988).


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    In the Matter of the Claim for Benefits by Scott SLETTEN.
    No. A06-2263.
    Court of Appeals of Minnesota.
    Dec. 24, 2007.

      William J. Krueger, William J. Krueger, P.A., New Brighton, MN, for relator Scott Sletten.
    Lori Swanson, Attorney General, Bernard E. Johnson, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Public Safety Officers Benefit Eligibility Panel.
    Considered and decided by RANDALL, Presiding Judge; KALITOWSKI, Judge; and HUDSON, Judge.
   OPINION

RANDALL, Judge.

On certiorari appeal from a determination of the Minnesota Public Safety Officer Eligibility Panel (MPSOEP) denying his claim for continuing payment of employer’s contribution to health insurance coverage under Minn.Stat. § 299A.465, subd. 1 (2006), relator argues that MPSOEP erred in denying his claim for benefits. Relator argues that regardless of whether the focus is on a 2002 injury involving moving a chair, or a 2004 injury involving a cave rescue, he is entitled to benefits because both injuries occurred while he was acting within the scope of his duties as a firefighter. The injury that ultimately forced relator to retire occurred during a 2004 cave rescue. The cave rescue was an occupational duty or professional responsibility that put relator at risk for the type of injury he sustained. We reverse.

FACTS

Relator Scott Sletten was employed as a firefighter for the City of St. Paul from May 11, 1992, until August 11, 2006. On February 18, 2002, while working at Fire Station 1, relator injured his left shoulder and ruptured a disc in his neck. The injury occurred when relator “picked up a chair to carry it into the kitchen [at the fire station],” and he received workers’ compensation benefits as a result of the injury.

In September 2002, relator returned to work after being on leave from the injury. Relator reinjured himself on April 27, 2004, while performing a cave rescue. Relator reported the injury two days later; he did not receive any immediate medical treatment for the injury, nor did he initially miss any time from work. It was not until July 2004, after his left shoulder and arm pain worsened, that relator requested a referral to Physicians Neck and Back Clinic for treatment of the injury.

In October 2004, relator began receiving workers’ compensation benefits as a result of the re-aggravation of his shoulder injury. Sometime thereafter, relator determined that he was unable to resume his duties as a firefighter due to his injury. In August 2006, relator was awarded a Public Employees Retirement Association (PERA) duty-related disability pension. Shortly thereafter, when the City of St. Paul was informed that relator was awarded PERA disability benefits, it terminated relator’s temporary total disability workers’ compensation benefits. A month later, relator filed his eligibility application form with respondent Minnesota Public Safety Officers Benefit Eligibility Panel (MPSOEP) requesting continuing health care benefits under Minn.Stat. § 299A.465, subd. 1 (2006).

MPSOEP met to consider relator’s claims on October 12, 2006. By a five-to-one vote, MPSOEP denied appellant’s claim for benefits. MPSOEP issued an order denying relator’s claim because “the evidence is inconclusive that [relator’s] occupational duties or professional responsibilities put him at risk for the type of illness or injury actually sustained.” This certiorari appeal followed.

ISSUE

Did MPSOEP err in concluding that the evidence did not conclusively establish that relator’s occupational duties or professional responsibilities put him at risk for the type of injuries he sustained?

ANALYSIS

Appellate courts presume that an agency’s decision is correct, and will “defer to an agency’s expertise and its special knowledge in the field of [its] technical training, education and experience.” In re Med. License of Friedenson, 574 N.W.2d 463, 465 (Minn.App.1998), (alteration in original) (quotation omitted) review denied (Minn. Apr. 30, 1998). But when reviewing legal questions, appellate courts “are not bound by the decision of the agency and need not defer to agency expertise.” St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989). Statutory construction is a question of law reviewed de novo. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002).

Under Minnesota law, an employer shall continue to provide health coverage to a firefighter and the firefighter’s dependents until the firefighter reaches the age of 65 if the “firefighter suffers a disabling injury that: (1) results in the ... firefighter’s retirement or separation from service; (2) occurs while the ... firefighter is acting in the course and scope of duties as a ... firefighter; and (3) the ... firefighter has been approved to receive the ... firefighter’s duty-related disability pension.” Minn.Stat. § 299A.465, subd. 1 (2006). In 2005, the legislature added subdivision 6 to section 299A.465, which states:

Whenever a ... firefighter has been approved to receive a duty-related disability pension, the ... firefighter may apply to the [MPSOEP] for a determination of whether or not the ... firefighter meets the requirements in subdivision 1, paragraph (a), clause (2). In making this decision, the [MPSOEP] shall determine whether or not the ... firefighter’s occupational duties or professional responsibilities put the ... firefighter at risk for the type of illness or injury actually sustained.

Minn.Stat. § 299A.465, subd. 6(a) (2006). This section “applies to duty-related pension approvals made on or after” July 1, 2005. 2005 Minn. Laws ch. 136, art. 8, § 7, at 1008.

The plain meaning of section 299A.465, subdivisions 1(a) and 6, creates a two-part test for determining whether a former firefighter is entitled to benefits. First, a firefighter must establish that he has been approved to receive a duty-related disability pension. Id., subd. 6. The undisputed record shows that relator has satisfied this requirement.

Second, the panel must determine whether the firefighter suffered a disabling injury while acting in the course and scope of his duties as a firefighter. Id., subds. 1(a)(2), 6(a). “This standard does not encompass any injury a [firefighter] incurs while on duty; instead, it is limited to only those illnesses or injuries arising from the risks associated with the [firefighter’s] occupational duties or professional responsibilities.” In re Claim for Benefits by Sloan, 729 N.W.2d 626, 630 (Minn.App.2007) (citing Minn.Stat. § 299A.465, subd. 6).

In denying relator’s claim, MPSOEP concluded that the “evidence is inconclusive that his occupational duties or professional responsibilities put him at risk for the type of illness or injury actually sustained.” MPSOEP failed to make any findings explaining its decision. MPSOEP appears to conclude that it was the 2002 injury involving the chair, rather than the 2004 cave rescue, that ultimately forced relator to retire. Thus, it appears the panel denied relator’s claim feeling the injury involving the chair did not occur while relator was acting within the course and scope of his duties as a firefighter.

Relator argues that MPSOEP’s decision is erroneous because both the 2002 injury involving the chair, and the 2004 cave rescue injury, occurred while he was acting within the scope of his duties as a firefighter. To support his claim, relator asserts that it was part of his responsibility as a firefighter to clean the fire station, and that a refusal to accept this responsibility would lead to discipline, if not termination of his employment. Relator argues that because he was injured when moving a chair to wash the kitchen floor, his injury occurred while he was acting within the course and scope of his duties as a firefighter. Relator further argues the 2004 injury occurring during the cave rescue also falls within the statutory language because he was acting within the scope and duties as a firefighter by crawling around in a cave performing rescue operations. Relator contends that regardless of whether we focus on the 2002 injury involving the chair, or the 2004 cave rescue, he is entitled to benefits.

A. 2002 chair injury

Relator correctly asserts that his duties as a firefighter include “maintenance and care of quarters, equipment, tools, apparatus, and grounds.” Relator claims that he was performing such a duty in 2002 when his injury occurred. We acknowledge that despite the seemingly harmless action of “moving a chair,” it was a bona fide injury, with bona fide medical bills, and a bona fide layoff. The injury was recognizable as compensable with worker’s compensation benefits. The issue is whether this compensable injury is the kind to also allow relator (over and above worker’s compensation and over and above temporary/total partial/full disability) the other perk of medical insurance coverage for life.

This issue has been analyzed by our court several times. In In re Claim for Benefits by Hagert, a police officer was forced to retire after he sustained injuries when he crashed his motorcycle responding to a theft report. 730 N.W.2d 546, 547 (Minn.App.2007). This court held that the decision to deny him insurance benefits was erroneous because the officer’s “duty to travel on a motorcycle put him at risk for the injuries he sustained.” Id. at 550.

Similarly, in In re Claim for Benefits by Meuleners, a peace officer was forced to retire after he was injured when he slipped on icy stairs while serving an eviction notice. 725 N.W.2d 121, 122 (Minn.App.2006). This court concluded that the peace officer was entitled to benefits because the fall “occurred while he was acting in the course and scope of his duties as a deputy sheriff.” Id. at 125.

Finally, in Sloan, a peace officer responded to a call about a suspicious object placed about ten feet from the main entrance to a building on the University of Minnesota campus. Sloan, 729 N.W.2d at 628. When he arrived at the scene, the peace officer discovered that the object was a large console television. Id. Because the call occurred in the wake of the 9/11 terrorist attacks, the peace officer was concerned about the possibility that the console might contain a bomb. Id. After determining that the object was benign, the officer, using his professional judgment, decided to remove the console and place it in the trunk of his squad car because the object was “causing ... a lot of anxiety.” Id. While moving the console, the peace officer sustained an injury that forced him to retire. Id. In determining whether the officer was entitled to health insurance benefits, this court held that:

a peace officer’s occupational duties or professional responsibilities include exercises of professional judgment that are legitimately calculated to protect the health, safety, and general welfare of the public. Indicia of poor judgment does not disqualify the officer from benefits if his or her actions were reasonable under the facts and circumstances immediately available to the officer.

Id. at 630-31 (establishing an objective test to determine whether a claimant has satisfied the statutory requirements of Minn.Stat. § 299A.465). The court held that the peace officer was entitled to benefits because the officer’s “injury resulted from a reasonable exercise of professional judgment, which was legitimately calculated to protect the health, safety, and general welfare of the public.” Id. at 631.

These cases articulate that there is no narrow limiting requirement that the injury be indigenous to fighting fires or police work. See id., at 630 (rejecting a unique-to-the-job analysis when considering claims under section 299A.465, subd. 6, because such a test excluded conduct that, although mundane and ordinary, is incidental to proper discharge of an officer’s duties). In other words, an applicant for benefits under section 299A.465, does not have to sustain an injury while “fighting fires” or “shooting at the bad guys” to be eligible for benefits under the Minn.Stat. § 299A.465.

The addendum to the statute has to mean something. This is precisely the question here. Anybody can end up moving a piece of office furniture around, assuming it was something they should be doing as part of the work day. Any secretary-judicial or non-judicial, legal or non — legal any housewife, gardener, plumber, doctor, lawyer, judge, cleaning his or her office; any of those groups could move a chair or a table, suffer an arm, leg, or back injury, and pull worker’s compensation. On the other hand, if the injury is received during work hours and on a task either explicitly or implicitly assigned to you and if you put a claim for worker’s compensation benefits and it is honored, relator argues why should the inquiry go any further? However, we do not need to answer the precise question of “the chair.” Relator sustained a later injury; an injury that forced him to retire, that is not in dispute under the statute.

B. 2004. cave rescue injury

Respondent argues the 2004 cave rescue falls within the ambit of the statutory language. Respondent argues that because relator did not immediately seek medical treatment, the focus should not be on this injury.

This is not the test. We acknowledge that the record and transcript is short. But relator’s expert found bona fide injury and disability following the cave rescue. MPSOEP’s own independent medical consultant agreed that relator is presently disabled and that relator’s “disability appears to be related to a specific event occurring in the line of duty.” There is nothing in the record to support a disregard of these medical examinations. The record reflects that the cave rescue injury was the injury that forced relator to retire. Cave rescue is an occupational duty or professional responsibility of firefighters. MPSOEP erred in denying relator’s claim for benefits.

DECISION

The injury that forced relator to retire occurred while relator was performing the cave rescue in 2004. The cave rescue was an occupational duty ■ or professional responsibility that put him at risk for the type of injury he sustained. Relator is entitled to continuing health coverage benefits.

Reversed.

      . The MPSOEP is composed of the following seven members: two members recommended by the Minnesota League of Cities; one member recommended by the Association of Minnesota Counties; two members recommended by the Minnesota Police and Peace Officers Association; one member recommended by the Minnesota Professional Firefighters Association; and one nonorgani-zational member recommended by the six organizational members. Minn.Stat. § 299A.465, subd. 7(a) (2006).

      . Section 299A.465, subd. 6, expires July 1, 2008. Minn.Stat. § 299A.465, subd. 6(b) (2006).


author: KLAPHAKE, Judge.

text:
    Margaret A. BRICKNER, et al., Respondents, v. ONE LAND DEVELOPMENT COMPANY, Defendant (A06-1940), Appellant (A06-1957), John Andrew Duckwall, Appellant (A06-1940), Defendant (A06-1957).
    Nos. A06-1940, A06-1957.
    Court of Appeals of Minnesota.
    Dec. 24, 2007.

      Bradley A. Kletscher, Tammy J. Schem-mel, Barna, Guzy & Steffen, Ltd., Minneapolis, MN, for respondents.
    Kevin E. Giebel, Giebel, Gilbert, Williams & Kohl, P.L.L.P., St. Paul, MN, for appellant One Land Development Company.
    Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, St. Paul, MN, for appellant Duckwall.
    Considered and decided by KLAPHAKE, Presiding Judge; SHUMAKER, Judge; and WORKE, Judge.
   OPINION

KLAPHAKE, Judge.

In these consolidated appeals from a declaratory judgment action, appellant One Land Development Company challenges the district court’s conclusion that respondents Margaret Brickner, acting for herself and as trustee of the Thomas E. Brickner Credit Trust, and Braam Investment, Inc., effectively canceled a real estate contract entered into between respondents and One Land. Respondent John Andrew Duckwall, a purported assignee of One Land, challenges the district court’s order concluding that he slandered respondents’ title and requiring him to pay attorney fees.

Because respondents canceled the contract in accordance with Minn.Stat. § 559.21 (2002), as modified by contract, we affirm the cancellation. Because Duck-wall did not rebut respondents’ proof of malice in the slander of title action, we affirm the slander of title determination. However, because of a contract with the subsequent purchaser of the real estate, respondents are responsible for only one-half of the attorney fees claimed as special damages in the slander of title action. Accordingly, we modify the award of attorney fees by reducing them by half to comport with this agreement.

FACTS

Respondent Margaret Brickner, personally and as trustee for the Thomas E. Brickner Credit Trust (collectively, “Brick-ner”), owned land in Fridley on which was located a restaurant named Sandee’s. Respondent Braam Investments, which was owned by Brickner’s daughter, Cindy Braam, and son-in-law Garry Braam, operated the restaurant and leased the building from Brickner.

Appellant One Land Development Company is a Minnesota corporation engaged in real estate development. Thomas Gam-bucci is the principal shareholder of One Land. Gambucci, acting for One Land, wanted to purchase the Brickner property. One Land intended to build senior housing on the property and to continue to operate the restaurant. Appellant John Duckwall is a presumed assignee of the purchase agreement described below.

On April 22, 2002, respondents and One Land entered into a purchase agreement for the property and restaurant fixtures. According to the purchase agreement, One Land had 120 days in which to secure the necessary government approvals for construction; this was termed the “Approval Period.” Closing would take place no more than 30 days after expiration of the Approval Period. One Land could extend the Approval Period once by 60 days by giving respondents notice and paying $20,000 in earnest money. One Land exercised this option and extended the Approval Period from August 22, 2002, to October 22, 2002. One Land also waived-the contract precondition pertaining to government approvals.

Under the agreement, respondents warranted that they had “good and marketable” title to the property, “free and clear of any and all ... easements ... except as disclosed in this Agreement or in any exhibit containing permitted exceptions attached hereto.” It is undisputed that respondents’ attorney failed to attach an exhibit to the purchase agreement disclosing the existence of two easements located on the property.

The agreement further required respondents to provide a title insurance policy evidencing tax liens, bankruptcies, judgments, assessments, and pending assessments. This was collectively known as “Title Evidence.” One Land then had 20 days to examine the Title Evidence and make objections to it, and respondents had 60 days to cure any defects based on those objections. Closing would occur on the scheduled closing date or within 10 days after the notice of cure, whichever was later. One Land could either terminate the agreement if respondents failed to cure defects or waive any objections.

On October 11, 2002, One Land received the title insurance policy, with an effective date of August 19, 2002. This policy included a reference to three easements. One Land’s only comment to the policy concerned one of the easements, which had been erroneously included. A second title insurance policy was issued on November 6, 2002, deleting the erroneous easement. On November 12, 2002, respondent notified One Land that closing had to occur by November 22, 2002, or One Land would be in default under the terms of the purchase agreement. No closing occurred.

On December 9, 2002, respondents served a notice of statutory cancellation under Minn.Stat. § 559.21 (2002). According to the purchase agreement, the parties agreed to cancellation in accordance with Minn.Stat. § 559.21 in the event of a default and also agreed that the 60-day statutory notice period would be shortened to 30 days, as permitted by Minn.Stat. § 559.21, subd. 4. The notice gave One Land until January 8, 2003, to close. No closing took place, and One Land took no action opposing cancellation.

On January 8, 2008, Gambucci notified respondents’ attorney that he had assigned his interest in the contract to Duckwall. Although Gambucci asserted that he had told respondents earlier of his intent to assign the contract, January 7 or 8, 2003, was the first time respondents learned Duckwall’s name and address.

On April 8, 2003, respondents entered into a purchase agreement with Town Center Development. Appellants did not contact respondents about the property from January 9, 2003, until December 3, 2003, when Duckwall filed a notice of adverse claim against the property. On February 2, 2004, Town Center entered into an agreement with respondents to pay 50% of any attorney fees and costs incurred by respondents in quieting title.

Respondents began this declaratory judgment action in April 2005. After a multi-day trial to the court ending on May 26, 2005, the court issued a preliminary order directing Duckwall to discharge the notice of adverse claim against the property. On August 23, 2005, the district court issued its second order, concluding that (1) respondents properly canceled the purchase agreement; (2) appellants abandoned their interest in the agreement; (3) appellants breached the contract by failing to close; (4) appellant Duckwall slandered respondents’ title; (5) appellants were not entitled to specific performance; (6) respondents had cured any potential breach of contract by providing last evidence of title and curing title defects; (7) respondents breached the contract by failing to remove easements, but appellants’ claim was extinguished by the valid cancellation of the purchase agreement and appellants waived their right to make a claim; and (8) appellants failed to set forth a prima facie case of fraud and misrepresentation. Judgment was entered on September 26, 2005.

The district court denied appellants’ motion for amended findings and/or a new trial on February 21, 2006 and appointed a special master to determine fees and costs pursuant to Minn. R. Civ. P. 53. By e-mail on February 27, 2006, the court acknowledged that it had not followed the recently amended Rule 53 and stated that the February 21-order would serve as notice of its intent to appoint a special master. Having received no objections, the court issued an order, appointing a special master.

The special master returned his report on April 6, 2006; the district court affirmed the report on June 28, 2006, and later awarded attorney fees of $156,957 and costs and disbursements of $19,080.46. Appellants filed a notice of appeal on October 12, 2006.

ISSUES

1. Did the district court err by determining that respondents had canceled the purchase agreement, thus terminating appellants’ interests in the real property?

2. Did the district court err by concluding that Duckwall had slandered respondents’ title to the property?

3. Did the district court abuse its discretion by awarding respondents their entire claimed attorney fees for slander of title?

ANALYSIS

Standards of Review

In a matter tried to the court, findings of fact will not be set aside unless clearly erroneous; deference is paid to the trial court’s ability to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. Findings are clearly erroneous if “manifestly contrary” to and unsupported by the evidence. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999) (quotation omitted). This court reviews the evidence in the light most favorable to the judgment. Id.

We are not bound by the district court’s ruling on a question of law, which we review de novo. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003). Construction of an unambiguous contract is a question of law. Wolfson v. City of St. Paul, 535 N.W.2d 384, 386 (Minn.App.1995), review denied (Minn. Sept. 28, 1995). We review the district court’s award of attorney fees or costs for abuse of discretion. Kellar v. Von Holtum, 605 N.W.2d 696, 703 (Minn.2000); Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987).

Cancellation under MinnStat. § 559.21

The seller in a contract for the conveyance of real estate may cancel the contract upon default by serving on the purchaser a notice of intent to cancel specifying the default. Minn.Stat. § 559.21, subd. 2a (2002). The statutory 60-day notice period may be shortened to 30 days by agreement of the parties. Minn.Stat. § 559.21, subd. 4 (2002). During the notice period, the buyer may cure the default and reinstate the contract by paying certain costs and fees. Minn.Stat. § 559.21, subd. 2a. The parties here agreed that in the case of default in performance by either party, the other party could cancel the agreement upon 30 days notice in compliance with Minn.Stat. § 559.21 (2002).

Under the statute, the party opposing cancellation may cure the default, or in the alternative, may bring an action or seek injunctive relief, so long as that action is begun before the cancellation period expires. Minn.Stat. § 559.211, subd. 1 (2002); Bell v. Olson, 424 N.W.2d 829, 831 (Minn.App.1988); Thomey v. Stewart, 391 N.W.2d 533, 535-36 (Minn.App.1986).

Appellants may have had a basis for avoiding cancellation based on the breaches of contract cited by them, but by failing to take action within the 30-day cancellation period, appellants waived their right to oppose cancellation. See Thomey, 391 N.W.2d at 535-36. The district court did not err by concluding that respondents properly canceled the purchase agreement, thus terminating One Land’s interest in that agreement and any interest that Duckwall acquired by assignment.

Slander of Title

The elements of a slander of title claim are (1) a false statement concerning the ownership of real property; (2) publication of the false statement; (3) malice; and (4) special damages. Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn.2000).

Filing a document known to be inoperative constitutes a false statement. Kelly v. First State Bank of Rothsay, 145 Minn. 331, 332, 177 N.W. 347, 347 (1920). The record supports the district court’s determination that Duckwall knew the purchase agreement had been canceled. “[Ojnce statutory notice has been served and cancellation effected, all rights between the parties under a contract for deed are terminated.” In re Butler, 552 N.W.2d 226, 230 (Minn.1996). Thus, Duckwall knew when he filed a notice of adverse claim against the property that he no longer held an interest in the property. He also satisfied the publication element by filing the notice of adverse claim. Attorney fees incurred as a result of a slander of title are considered to be special damages. Paidar, 615 N.W.2d at 281. Although appellants claim that respondents failed to introduce evidence of damages, respondent Cindy Braam did testify that respondents had incurred attorney fees.

The element of malice requires a “[rjeckless disregard concerning the truth or falsity of a matter ... despite a high degree of awareness of probable falsity or entertaining doubts as to its truth.” Contract Dev. Corp. v. Beck, 255 Ill.App.3d 660, 194 Ill.Dec. 423, 627 N.E.2d 760, 764 (1994) (quotation omitted). Duckwall asserts that no malice has been shown because he consulted an attorney before filing the notice of adverse claim and reasonably relied on that attorney’s advice. But a mere assertion of reliance on an attorney’s advice without disclosure of the basis for that reliance or the facts supporting the attorney’s advice is insufficient to rebut the deliberate filing of a false statement.

From the record', it is clear that Duck-wall knew the purchase agreement had been canceled; the statutory notice of cancellation required by Minn.Stat. § 559.21, subd. 3, includes specific language that cancellation terminates the contract and all claims or defenses a party has under the contract. But Duckwall offered no evidence as to the information he provided to his attorney. In order to deny a charge of malice, Duckwall could rely on the advice of his attorney only to the extent that this reliance was reasonable. Duckwall cannot assert reasonable reliance on the attorney’s advice, absent evidence that the attorney had been fully informed as to all the facts surrounding Duckwall’s interest in the property and the cancellation of the purchase agreement.

We conclude that Duckwall’s reckless disregard of the fact of cancellation is sufficient to support a finding of malice and, therefore, the district court did not err by determining that Duckwall slandered respondents’ title.

Attorney Fees

Duckwall challenges both the district court’s appointment of a special master to determine costs and attorney fees for the slander of title and the amount of the award. Pursuant to Minn. R. Civ. P. 53.01(a)(2), (3), the district court may appoint a special master “only to address pretrial and post-trial matters that cannot be addressed effectively and timely by an available district judge” or to recommend findings of fact to be decided by the court without a jury that involve a difficult computation of damages or an accounting. Here, the district court directed the special master to determine costs and attorney fees to be awarded against Duckwall. The court cited the “sheer volume” of the record as a reason to appoint a special master, noting the length and complexity of the trial, the number of exhibits, and the request for a sizeable amount of fees and costs. We agree that this was an appropriate use of the skills of a special master.

We have reviewed the record, including the special master’s report and the district court’s order awarding fees, and conclude that the record supports their findings as to the amount of attorney fees and costs. But in this matter, the attorney fees are awarded as special damages for the tort of slander of title. We review the amount of an award of special damages as a question of law. Paidar, 615 N.W.2d at 279.

Attorney fees are considered to be special damages in a slander of title action because they are incurred as a direct and necessary result of the tort. Id. at 281. Here, however, respondents had a contractual agreement with Town Square Development that obligated Town Square Development to assume responsibility for 50% of respondents’ attorney fees and costs for bringing an action to quiet title. Thus respondents’ responsibility for fees and costs, and therefore their special damages, can be no greater than one-half of the fees and costs. We therefore modify the district court’s order and reduce the $156,957 attorney fee award by one-half, to $78,478.50, and the $19,080.46 costs award to $9,540.23, with $4,770.11 attributable to Duckwall, and $4,770.11 attributable to One Lane.

DECISION

Respondents canceled the contract in accordance with Minn.Stat. § 559.21 (2002). Because it failed to oppose the cancellation or seek injunctive relief before the expiration of the cancellation period, appellant One Land cannot avoid cancellation by asserting a prior breach. Because he did not produce specific facts showing reasonable reliance on his attorney’s advice, appellant Duckwall failed to rebut an allegation of malice in the slander of title action. But because the court awarded attorney fees as special damages and respondents were contractually relieved of their obligation to pay one-half of their attorney fees, we modify the court’s order awarding $156,957 in attorney fees from appellant Duckwall by reducing the amount by one-half to $78,478.50, and by reducing the costs levied against appellants to $9,540.23 from $19,080.46, with each appellant responsible for one-half of the costs.

Affirmed as modified.


author: HUDSON, Judge.

text:
    INDEPENDENT SCHOOL DISTRICT NO. 192, Farmington, Minnesota, Relator, v. MINNESOTA DEPARTMENT OF EDUCATION, Respondent.
    No. A06-1905.
    Court of Appeals of Minnesota.
    Dec. 24, 2007.

      Sara J. Ruff, Plymouth, MN, for relator school district.
    Lori Swanson, Attorney General, Martha J. Casserly, Assistant Attorney General, St. Paul, MN, for respondent department.
    Margaret O’Sullivan Kane, Kane Education Law, LLC, St. Paul, MN, for amicus curiae.
    Considered and decided by HUDSON, Presiding Judge; WILLIS, Judge; and MINGE, Judge.
   OPINION

HUDSON, Judge.

This is a certiorari appeal from a decision by respondent the Minnesota Department of Education (MDE) concerning the provision of special-education and related services under the Individuals with Disabilities Education Improvement Act (IDEA). Relator school district argues that (a) the MDE erred in awarding partial reimbursement for private academic tutoring when the findings showed that the student received appropriate academic instruction from his school; (b) the decision was based on a flawed investigation; and (c) the decision was arbitrary. Because the MDE’s investigation was inadequate, and because partial reimbursement for the cost of private tutoring was inappropriate in this case, we reverse.

FACTS

This appeal concerns a young boy (student) who attended school in Independent School District 192 (school district) in Farmington, Minnesota, from 2004 to 2006. When student was in kindergarten in 2004, the school district conducted an initial investigation and found student to be eligible for, and in need of, special-education services. Student’s primary disability was in the area of emotional or behavioral disorders, characterized chiefly by his “remarkably aggressive, assaultive behavior.” Accordingly, the school district developed an Individualized Education Plan (IEP) for student in January 2005.

The January 2005 IEP placed student at federal setting I. The IEP listed five goals for student, including to improve his interaction with others; improve his hand and arm control; reduce the number of physical altercations with his peers; improve his ability to follow directions and participate in classroom activities; and improve his academic skills.

In September 2005, another IEP was filed because student had physical altercations with peers. The IEP included changes for “service minutes” and a plan for student “to make use of the resource room for verbal and physical altercations.”

Although student’s November 2005 progress report indicated that he made adequate progress toward his goals, from September 2005 through November 2005, student’s special-education teacher sent several e-mails to student’s father (father) advising him of student’s academic difficulties and requesting that father work with student at home. Two e-mails from the teacher, dated September 21, 2005, and September 28, 2005, are representative. The September 21, 2005 e-mail stated: “I noticed that [student] has a very hard time with letter sounds and the .high frequency words that the class is working on this week. They are included in his take home folder. He also had trouble with the math work. Anything you can do at home to help him would be appreciated.” The September 28, 2005 e-mail stated: “Today [student] really struggled with words that have a short ‘a’ and short T sound. If you could go over these words with [student] it would be helpful.”

Following a similar e-mail on November 7, 2005, which discussed student’s difficulties with counting money, father replied to the teacher: “I don’t know if I told you but I hired a tutor for [student].” That same day, the teacher responded as follows: “Sounds like a good plan to have [student] get more help with academies. I’d be happy to fill [the tutor] in on the kinds of things I’ve been working on with [student] as he isn’t doing all the regular first grade curriculum.”

In December 2005, student was at a federal setting II. Student’s December 2005 IEP listed three goals for student: (1) “to increase his ability to make positive choices in his behavior and words with peers and adults through all interactions he has during the school day”; (2) to “be able to follow directions, complete work, and otherwise attend to activities and discussions within the classroom in order to be more successful in the school environment”; and (3) to “increase his basic reading and math skills from a kindergarten level to a level that is more at the current grade level.”

Student’s January 2006 progress report showed that he continued to make adequate progress toward his goals, but it also indicated that from November 7, 2005, through January 20, 2006, student had ten physical altercations with other students and one physical altercation with an adult in which he threatened a teaching assistant with a pair of scissors. The report also stated that there were days “when he is physically appropriate throughout the entire school day.”

In February 2006, school officials filed a document noting that student “has randomly pushed, poked, pulled, choked, grabbed, thrown ice, kicked, etc. other students which causes him to need to leave the classroom environment or other general areas and spend time in the special education resource room or school office.” The document also noted that student “threatened a teaching assistant with scissors towards her neck.” As a result of student’s behavior, the IEP team decided to make some “significant changes” to student’s program:

Beginning February 6, [student] will be changed to the Level III setting.[] He will remain in the EBD classroom for the entire day. He will not attend specialists but will be given the opportunity to visit the library to check out books, will have opportunities to use the student computer in the classroom, and will have opportunities for art activities in the resource room. He will continue to receive OT services. He will continue with a separate recess time and will eat lunch in the cafeteria but will not be with his regular first grade peers. He will have a teaching assistant with him during the lunch period.

The portion of the document reserved for “Parent Action” indicated that father agreed with the decision to change student’s IEP and that a team member had “[cjonversation with parents via telephone (1-19, 1-20) and also with [father] in person, 2-6-06” regarding the changes. But father maintained that he was not notified in advance that these changes would be made and that no one sought his approval.

In March 2006, father approached the principal of student’s school to express his concerns that student had not yet been returned to the general-education first-grade classroom. An April 2006 progress report showed that student made “adequate progress” on his three goals, and student’s April 2006 IEP showed a decrease in student’s special-education-service minutes and a change from federal setting level III to level I.

Throughout his first-grade year, student was involved in more than 50 behavioral incidents and was disciplined many times. These incidents included numerous confrontations where student hit, choked, pushed, kicked, spat at, threatened, yelled at, and tripped other members of his first-grade class. He was suspended from school on March 17, 2006, for threatening to kill a student. Student was disciplined for his behavior in various ways, including being “curbed”; out-of-school suspensions; in-school suspensions; and recessing separate from the other students.

On May 15, 2006, father filed a complaint against the school district using the MDE’s complaint process. The complaint alleged that (1) the school district changed student’s federal setting placement without providing father with prior written notice; (2) the school district changed student’s federal setting placement without including father in the group of people making the placement determination; (3) the school district violated standards related to IEP implementation; (4) the school district violated standards related to reporting progress on student’s annual IEP goals; and (5) the school district failed to provide student with a free, appropriate public education (FAPE) during the 2005-06 school year.

The MDE initiated an investigation of father’s allegations; both the school district and father submitted various documents including student’s school records, copies of e-mail communications, and psychological reports. The MDE’s investigator also logged several phone conversations over a period of almost three months, including conversations with father and voice-mail messages to certain school-district officials.

On August 11, 2006, the MDE filed a detailed report of its findings of fact, conclusions of law, and decisions on each of the five issues raised by father’s complaint. The MDE sustained each allegation, finding multiple procedural and substantive violations of the IDEA and state special-education laws. The MDE imposed corrective action for each violation. Most of the violations and corresponding corrective actions focused on: (1) the school district’s failure to provide father with prior written notice of the modification to student’s February 2006 IEP and the school district’s related failure to include father in the IEP development process; (2) the school district’s failure to develop an IEP for student that included positive behavioral interventions and its failure to properly report student’s progress on his IEP goals; and (3) the MDE’s determination that because student’s IEP did not contain the needed positive behavioral supports, student was not making progress on his annual IEP goals related to improving his behaviors. Significantly, the MDE found that student’s behaviors and concomitant frequent removals from class improperly segregated student from his peers and interfered with his academic progress, necessitating father hiring a private tutor. Based in part on this finding, the MDE concluded that student was denied a FAPE and imposed, among other things, the following corrective action:

Within 21 calendar days of receiving this final decision, the District will obtain an invoice for the private tutor from [father] detailing the dates, times, and amounts of money paid to the private tutor by [father] during the 2005-06 school year and the summer of 2006. The District will reimburse [father] 50 percent of the total of the bill before the start of the 2006-07 school year.

The school district petitioned this court for a writ of certiorari. Father and student participate in this action as amici curiae under Minn. R. CivApp. P. 129.01-.04.

ISSUES

I. Did the Minnesota Department of Education’s investigation satisfy the requirements of 34 C.F.R. § 300.661(a)(1), (3) (2005-2006)?
II. Did the Minnesota Department of Education err by imposing partial reimbursement of the cost of a private tutor?

ANALYSIS

The school district challenges the MDE’s August 2006 administrative decision. The school district does not challenge the majority of the MDE’s findings or the bulk of the corrective actions imposed, but it argues that: (1) the MDE’s investigation was fundamentally flawed; and (2) because it provided the requisite academic services to student, the MDE erred in mandating reimbursement for the private tutor.

When reviewing agency decisions, this court “adhere[s] to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001) (quotation omitted). “When an agency performs the quasi-judicial function of receiving and weighing evidence, making factual findings, and applying a prescribed standard to reach a conclusion, a reviewing court applies the substantial-evidence test.” Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn.App.1999) (quotation omitted). Substantial evidence is: “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn.2002). Under the substantial-evidence test, this court evaluates “the evidence relied upon by the agency in view of the entire record as submitted.” Cable Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 668 (Minn.1984). This court will not reverse the decision of an administrative agency unless the decision “reflects an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by the evidence.” Special Sch. Dist. No. 1 v. E.N., 620 N.W.2d 65, 68 (Minn.App.2000) (quotation omitted). If an agency engages in reasoned decision-making, this court will affirm, even though it may have reached a conclusion different from the agency’s. Cable Commc’ns Bd., 356 N.W.2d at 669.

The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A) (2000 & Supp. V.2005). States “shall ensure that FAPE is available to all children with disabilities.” 34 C.F.R. § 300.300(a)(1) (2005-2006).

If a dispute arises in which the parent of a child with disabilities objects to special-education programming matters, a parent may choose from two procedures in order to report and seek resolution of the complaint: (1) participating in an impartial due-process hearing, 20 U.S.C. § 1415(f) (2000 & Supp. V.2005); Minn.Stat. § 125A.091, subd. 12 (2004); or (2) filing a complaint with the state educational agency (SEA). See Megan C. v. Indep. Sch. Dist. No. 625, 57 F.Supp.2d 776, 780 (D.Minn.1999) (stating that there are “[t]wo separate, distinct, and independent remedies” in disputes with school districts over the appropriate special-education services of children with disabilities: (1) due-process hearings; and (2) administrative-complaint procedures). In Minnesota, the SEA is the MDE. Here, father chose the administrative-complaint procedure and filed a complaint with the MDE on May 15, 2006.

In the administrative-complaint process, the MDE is required to: (1) determine whether an investigation is necessary, and if so, carry out an independent on-site investigation; (2) give the complainant an opportunity to submit additional information; (3) review all relevant information and determine whether the educational agency is violating the IDEA; and (4) issue a written decision that addresses each allegation in the complaint. 34 C.F.R. § 300.661(a)(l)-(4) (2005-2006).

We look to the statute “to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). If a statute’s language is unambiguous, we apply its plain meaning. Id.; In re Risk Level Determination of C.M., 578 N.W.2d 391, 395 (Minn.App.1998). This court reviews issues of statutory construction de novo, “[b]ut where the statutory language is technical in nature, and the agency’s interpretation is longstanding, that interpretation is entitled to some deference.” E.N., 620 N.W.2d at 68.

I

The school district argues that the MDE’s decision was arbitrary and capricious because its investigation was fundamentally flawed and was not conducted in accordance with 34 C.F.R. § 300.661(a)(1), (3). We agree.

The state complaint procedures under the IDEA are governed by 34 C.F.R. §§ 300.660-.662 (2005-2006). The regulations require an SEA to “[r]eview all relevant information and make an independent determination as to whether the [school district] is violating a requirement of [the act]” and to “[c]arry out an independent on-site investigation, if the SEA determines that an investigation is necessary.” 34 C.F.R. § 300.661(a)(1), (3).

Here, the MDE submitted a 41-page decision that included a detailed explanation of its investigation, conclusions, the facts supporting each of its conclusions, and decision. The record shows that during the investigation, the MDE examined numerous documents relating to the case, including the relevant IEPs; progress reports; e-mail messages exchanged between the school district, father, tutor, and classroom teacher; student’s report cards; student’s attendance reports; student’s diagnostic-assessment summary; the school district’s student-discipline policy; reports from Behavioral Health Services; and student’s psychological evaluations. The record also shows that the investigator made four telephone calls to the school district’s special-education director and sent three e-mails. The telephone calls consisted only of voice-mail messages from the MDE investigator informing the special-education director about the timing and procedures of the investigation. The record further reflects, and the parties do not dispute, that the MDE did not undertake an on-site investigation and that the MDE investigator did not otherwise personally contact any school-district personnel. At no point did the MDE investigator make substantive inquiries or otherwise discuss father’s allegations with school-district personnel.

Although the MDE maintains that the investigation only required review of the relevant paperwork, the MDE nevertheless conducted numerous interviews with father. The MDE also interviewed student’s tutor, as well as father’s special-education-rights advocates. But 34 C.F.R. § 300.661(a)(3) requires consideration of “all relevant information.” In complex cases such as this one, such consideration should have included, at a minimum, interviews with relevant school-district personnel. This is especially true where key credibility determinations play a significant role in sustaining the complainant’s principal allegations.

For example, the MDE found that student was denied a FAPE, in part because student’s aggressive behaviors interfered with his academic progress, as noted in several e-mails sent to father in the fall of 2005. According to the MDE, father was thus forced to hire a private tutor. Although the MDE interviewed father and the tutor, the MDE never spoke with the special-education teacher who actually sent the e-mails, even though those emails were pivotal in the MDE’s determination that student was not keeping up with the first-grade curriculum. Because of its truncated investigation, the MDE could only conclude that “[a]lthough the Student made progress on his academics during the 2005-06 school year, it cannot be ascertained whether this was due to the District’s efforts or to the efforts of the Student’s private tutor.” As the school district aptly notes:

Had the MDE investigator contacted the individuals who educated the Student at school, she would undoubtedly have been shown the materials they used to teach the Student, samples of the Student’s work, the teacher’s grade-book, and could have obtained helpful information to allow the MDE to make some inferences as to whether the Student obtained benefit from the District’s efforts or the Student’s private tutor.

Although less significant to our decision, we also note that father alleged that student was transferred to the more restrictive Level III in February 2006 without his knowledge or consent. The MDE determined, based largely on father’s statements, that the school district violated the IDEA by denying father an opportunity to participate in the February 2006 IEP meeting and failing to provide father with prior written notice before it changed student’s placement. The school district acknowledges that it violated the IDEA by not including father in the actual IEP meetings and in not obtaining father’s written consent to the transfer before implementing it. But father’s knowledge of the February 2006 change to student’s IEP was hotly disputed, with the school district maintaining that it discussed the change to student’s IEP with father by telephone; father orally agreed to the change; and father received regular emails informing him of the time student spent in the resource room versus his regular first-grade classroom.

Although these efforts by the school district do not excuse its failure to comply with the IDEA’S technical requirements for the development of an IEP, they are, in our view, relevant factors that warranted substantive investigation by the MDE before it determined the proper corrective actions. Accordingly, in this case, a review of “all relevant information” required not only a document review but interviews with both parties — not just the complainant and his witnesses. We hold that the MDE’s failure to interview student’s principal, special-education teacher, classroom teacher, paraprofessional, or any other school-district personnel directly involved in the development of student’s IEPs and overall education did not satisfy the regulatory mandate of 34 C.F.R. § 300.661(a)(3) to “review all relevant information.” Moreover, confidence in the MDE’s investigatory process and resulting decisions is severely undermined when the MDE engages in such one-sided fact-finding.

We also disagree with the MDE’s assertion that 34 C.F.R. § 300.661(a)(1) did not require it to conduct an on-site investigation. The regulation requires an SEA to “[c]arry out an independent on-site investigation, if the SEA determines that an investigation is necessary.” 34 C.F.R. § 300.661(a)(1). We find no ambiguity in this language, and we therefore apply its plain meaning. C.M., 578 N.W.2d at 395. In so doing, we conclude that the plain language of the regulation requires an SEA to complete an on-site investigation when the SEA determines that an investigation is required. Here, the MDE clearly concluded that an investigation was necessary; accordingly, the MDE was required to conduct an on-site investigation. But the MDE investigator did not do so, as evidenced by the fact that the investigator did not visit student’s school or the school district’s special-education office.

For all these reasons, we conclude that the MDE’s decision was arbitrary and capricious because it was based upon a flawed investigation that failed to satisfy the requirements of 34 C.F.R. § 300.661(a)(1), (3).

II

The school district also argues that the MDE erred as a matter of law by requiring partial reimbursement of the cost of a private tutor as a remedy for the school district’s IDEA violations. We agree.

One purpose of the IDEA is to “ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs” to prepare them for the future. 20 U.S.C. § 1400(d)(1)(A). The IDEA defines a “FAPE” as

special education and related services that — •
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(8) (2000); see 20 U.S.C. § 1401(9) (Supp.V.2005) (defining FAPE).

Under the administrative-complaint procedure, if the MDE finds that the school district has failed to provide appropriate services, the MDE must address “[h]ow to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child.” 34 C.F.R. § 300.660(b)(1); E.N., 620 N.W.2d at 71.

The MDE’s basic position is that because the school district committed multiple procedural and substantive violations of the IDEA and, as a result, failed to provide student with a FAPE, the MDE has the authority to implement virtually any corrective action it deems appropriate. We disagree. Although the MDE’s supervisory authority is broad, it is not limitless. And indeed, those limits are found in the same federal regulations that confer general supervisory authority to an SEA. Specifically, once the MDE finds “a failure to provide appropriate services,” it must address how to “remediate the denial of those services.” 34 C.F.R. § 300.660(b)(1) (2005-2006) (emphasis added). Thus, the remedy must be calculated to remediate the services that the school district failed to provide.

We acknowledge — as we must— the MDE’s unique role in supervising local school districts’ compliance with federal and state special-education law and its broad oversight responsibility to ensure that local school districts provide free appropriate public educations to students with disabilities. This court recently recognized that authority in Indep. Sch. Dist. No. 709 v. Bonney, 705 N.W.2d 209 (Minn.App.2005).

Likewise, we acknowledge — as we must — the MDE’s concomitant authority to remediate the denial of special-education services, “including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child.” 34 C.F.R. § 300.660(b)(1).

But we reject the MDE’s conclusion that it has unlimited discretion to impose any corrective action whatsoever, regardless of its nexus to the actual IDEA infractions committed by the school district. Such boundless governmental authority is an anathema to basic notions of substantive due process. In this regard, the school district contends that it provided student with the requisite academic services, thereby providing student with a FAPE. Accordingly, the school district argues, monetary reimbursement for the tutor was not authorized under the IDEA. The MDE disputes this contention, noting that student was falling behind academically, primarily because he was frequently removed from his classes due to behavioral problems, and that the school district failed to include appropriate behavioral interventions in student’s IEPs. The MDE contends that these violations collectively resulted in student not receiving a “free appropriate public education.”

We agree with the MDE that the school district’s collective violations denied student a FAPE. And in a case with similar facts, this court upheld monetary reimbursement for home-based educational services to a child even absent a finding that the school district failed to provide appropriate educational services, but when the school district violated other provisions of the IDEA. E.N., 620 N.W.2d at 71. Thus, even if we were to agree with the school district that it provided the requisite academic services, the school district’s other, admitted IDEA violations would still constitute a denial of a FAPE. That said, we nevertheless conclude that the MDE’s reliance on E.N. to support its order for the monetary reimbursement of the tutor here is unavailing because in E.N. the monetary reimbursement was directly related to the academic service that was denied. Thus, when the school district ceased paying for E.N.’s home-based educational services in violation of his IEP, the commissioner ordered the school district to reimburse the parents of E.N. for expenses incurred in providing home-based educational services to E.N. E.N., 620 N.W.2d at 68, 71. The MDE’s reliance on Bonney is similarly-misplaced because in Bonney, the MDE’s order for compensatory education was likewise directly related to the school district’s failure to provide certain educational services. Bonney, 705 N.W.2d at 215. The common thread between E.N. and Bonney is the direct nexus between the corrective action imposed and the IDEA deficiency to be remedied. Here, that nexus is equivocal, at best.

Our position is primarily based on the fact that the overwhelming majority of the school district’s IDEA violations related to the school district’s failure to adequately address student’s ongoing aggressive/as-saultive behaviors in the his IEPs. Following a close second is the school district’s failure to include father in the development of the February 2006 IEP and its related failure to provide father with prior written notice of student’s transfer to the more restrictive Level III. Although unquestionably related, none of the violations listed above had a direct nexus to student’s academic progress or lack thereof. This is evidenced by the fact that the principal corrective actions imposed by the MDE for those infractions fully addressed the denial of those services.

Thus, for example, corrective action # 1 required revisions to student’s IEP to include, among other things, measurable goals and a positive behavioral-support plan. Corrective action # 2 required the school district to include father in the IEP development process. Corrective action # 3 required the school district to provide 25 hours of compensatory education services to student, but notably, this did not entail compensatory academic services; rather, the school district was directed to provide social/relational services “to make up for the opportunities the Student missed during the 2005-06 school year because of inadequate behavioral supports.” The MDE specifically noted that this remedy was “based on the amount of time he was placed in a federal setting three and missed recess, lunch, and other opportunities to be with his peers.” Corrective action # 4 simply required the school district to correct its records to reflect that student was suspended from school for a day. Corrective actions # 5 and # 6 required the school district to implement training in IEP development and the use of positive behavioral interventions.

But the MDE’s corrective action requiring the school district to reimburse father for the cost of hiring a private tutor has no direct nexus to the school district’s principal violations of the IDEA — i.e., its failure to provide adequate behavioral supports, which, as noted above, was already addressed in corrective actions # 1, # 3, and # 6. Nor is the necessity for the tutor supported by the record.

The MDE points repeatedly to the school district’s multiple procedural and substantive violations of the IDEA, and in particular the school district’s unilateral decision to change the student’s IEP in February 2006. But again, the MDE implemented separate corrective actions that directly addressed this violation. Moreover, father’s November 2005 decision to hire a private tutor occurred well before the school district’s unilateral February 2006 decision to transfer student to a different educational-programming level. Thus, father’s decision to employ a private tutor for student was far removed from one of the school district’s primary IEP violations, both temporally and substantively.

Furthermore, the record shows that student did progress academically during the year. In November 2005, student’s psychiatrist noted that student was “doing reasonably well academically.” Student’s private tutor reported that student was performing at close to grade level by the end of his first-grade year, and indeed, student achieved passing academic grades and was apparently promoted from first grade to second grade. When student was removed from his regular first-grade class, he was sent to the resource room where he continued to work on his academic studies with his special-education teacher. Even the MDE’s decision recognizes that “the Student made progress on his academics during the 2005-06 school year.” And while the MDE also concluded that “it is reasonable to assume the Student was educationally harmed,” it is telling that the MDE did not order compensatory academic services despite its stated concern with student’s academic shortcomings.

In support of its position that student was not progressing academically, the MDE points to the e-mails from student’s special-education teacher indicating that student needed academic assistance and suggesting that father work with student at home. But as the school district notes, these were routine suggestions that might be made to any parent regarding parental review and reinforcement of certain academic skills at home. Nothing in those emails implied or suggested that student needed a private tutor. Parents commonly assist their children with their schoolwork, and that assistance should not be viewed as either indicating a deficiency in classroom teaching or imposing a liability on the school district. And although father was not legally required to do so, it is troubling that father did not notify the school district that he was in any way dissatisfied with the academic services student received or that he planned to hire a tutor.

We recognize the relationship, here between student’s behavioral issues and academic progress, but when, as in this case, the record plainly demonstrates and the MDE itself concluded that student made adequate academic progress, there is a fundamental disconnect between the MDE’s finding of broader, procedural IDEA violations and the remedy of reimbursement for private tutoring expenses. When a school district violates an IEP, any corrective action must “remediate the denial of those services.” 34 C.F.R. § 300.660(b)(1). Here, the school district’s violations were primarily related to the school district’s failure to provide appropriate behavioral services, not its denial of academic services. Monetary reimbursement for the tutor was not related to the denial of those behavioral services and, therefore, was inappropriate.

Finally, we note that the MDE’s position would at least implicitly authorize any parent of a child receiving special-education services under the IDEA to be reimbursed for the cost of a private tutor, even though the parent: (1) never advised the school district that he/she was dissatisfied with the academic services offered, thus providing the school district the opportunity to address any deficiencies; (2) never notified the school district that he/she planned to hire a tutor; and (3) never requested reimbursement for the tutor’s services. The policy and financial implications of such a ruling go far beyond what we believe the IDEA contemplates or authorizes. Accordingly, we conclude that partial reimbursement for the private tutor was an inappropriate remedy in this case. Because we reverse on other grounds, we do not address the school district’s remaining arguments.

DECISION

The corrective action imposed by the Minnesota Department of Education under 34 C.F.R. § 300.660(b)(1) (2005-2006)— partial reimbursement for the cost of a private tutor — was not sufficiently related to the school district’s failure to provide behavioral services and, therefore, was inappropriate.

Reversed.

      . The federal setting refers to eight federal designations for levels that describe the setting in which a child is to be educated. Level I includes "[IJearners receiving the majority of their education program in regular class. Includes children and youth with disabilities, receiving special education and related services OUTSIDE THE REGULAR CLASSROOM for less than 21 percent of the school day.”

      . Level II includes "[IJearners receiving education programs in resource room. Includes children and youth with disabilities receiving special education and related services OUTSIDE THE REGULAR CLASSROOM for 60 percent or less of the school day and at least 21 percent of the school day.”

      . Level III includes "[l]earners receiving education programs in separate class includes children and youth with disabilities receiving special education and related services outside the regular classroom for more than 60 percent of the school day. Does not include pupils who received education programs in public or private separate day or residential facilities.”

      . We note that on August 14, 2006, the U.S. Department of Education issued new IDEA regulations. See 71 Fed.Reg. 46540 (Aug. 14, 2006). The new regulations went into effect on October 13, 2006, and consequently do not apply to the present appeal.

      . In its brief and at oral argument, counsel for the MDE observed that in August 2006, the U.S. Department of Education issued an Analysis of Comments and Changes regarding the new regulations, and that these comments clarify that on-site investigations are discretionary with the local SEA. But the 2006 comments do not supplant the 2005-2006 C.F.R. that apply in this case because they were not promulgated at the time of this appeal. Under the 2005-2006 regulations applicable to this case, it is clear that if the SEA determines an investigation is necessary, it must conduct an on-site investigation.