author: LANSING, Judge.

text:
    Warren BLOOMQUIST, Relator, v. COMMISSIONER OF NATURAL RESOURCES, Respondent.
    No. A05-147.
    Court of Appeals of Minnesota.
    Sept. 27, 2005.

      William G. Peterson, Peterson Law Office, P.A., Bloomington, MN, for relator.
    Mike Hatch, Attorney General, David P. Iverson, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

In an administrative proceeding, the commissioner of natural resources denied Warren Bloomquist’s application for a permit to excavate a channel extending from Whitefish Lake to a pond located on his property in Crow Wing County. By writ of certiorari Bloomquist appeals, asserting that the denial is arbitrary and capricious and based on errors of law. We conclude substantial evidence supports the commissioner’s determination that the permit would violate public water resource rules by extending riparian rights to nonriparian owners and by promoting the development of nonriparian land. We also conclude the decision is not arbitrary and capricious because the commissioner provided a rational explanation that establishes a logical connection between the factual findings and the legal conclusions. We affirm.

FACTS

Warren Bloomquist owns thirty acres of land on Whitefish Lake in Crow Wing County. The property contains a natural pond measuring approximately one and one-half acres that is about twenty feet from Whitefish Lake. Bloomquist has, at the base of a set of stairs, a dock that provides direct access to Whitefish Lake. Bloomquist and adjoining landowners also had access to the lake from 1961 until 1991 through an artificial channel that connected the pond to the lake.

Bloomquist acquired his property in 1961. The same year Frank Schram, a neighboring property owner, applied for and received a permit from the Minnesota Department of Natural Resources (DNR) authorizing the excavation and maintenance of the artificial channel between the pond and the lake. In 1976 Schram obtained a permit to reopen the channel by removing accumulated sediment, and Schram’s estate obtained a permit to excavate and maintain the channel at the entrance to the pond in 1983. John and Suzanne Breen purchased the Schram property in 1986, and, in response to their permit application, the DNR transferred the second maintenance permit to the Breens and authorized additional maintenance. After 1991 the channel again filled with sediment and has not been used since that time.

A 2003 survey showed that the channel was not located on the Schram-Breen property, but was in fact on Bloomquist’s property. Before the survey was completed, Bloomquist signed a purchase agreement for the sale of his land to Northern Lakes Company. Northern Lakes entered into the agreement with the intent to develop the property, and its obligation to complete the purchase was contingent on obtaining the necessary permits to subdivide the property and to reopen the channel to permit boat traffic into the pond. Northern Lakes estimated that the channel would significantly increase the value of Bloomquist’s property.

In February 2003 Northern Lakes applied for an excavation permit to reopen the channel. The DNR conducted field investigations but dismissed Northern Lakes’ application because Northern Lakes did not have a property interest in Bloomquist’s land. The letter advising Northern Lakes of the dismissal also indicated that, unless the law required issuance of the permit, the DNR would not allow the excavation because of the negative environmental impact, the lack of justification for protected boat mooring, the availability of alternative access to Whitefish Lake, and the time elapsed since the channel was last used for navigation.

Bloomquist then applied for a permit to “remove blockage in [the] channel to allow boat traffic.” In July 2003 the DNR sent Bloomquist a letter that formally denied his permit application. The denial restated the reasons listed in the earlier letter with more specificity and also stated that, because the channel was completely filled in with large shrubs and other vegetation, the DNR considered the application to be for new excavation rather than maintenance.

Bloomquist requested a hearing on the denial of his permit application, and an administrative law judge (ALJ) conducted a contested-case hearing. The ALJ made detailed findings on the history of the channel and on the reports and testimony of technicians, hydrologists, and a limnologist. The ALJ concluded the proposed project reasonably required a new permit rather than maintenance authorization, Bloomquist had not established he had vested riparian rights that could be asserted against the state, Bloomquist had demonstrated that the excavation would likely not be detrimental to significant fish and wildlife habitat or protected vegetation, and Bloomquist had shown that the proposed project was reasonable, practical, and would adequately promote the public welfare. Based on these findings, the ALJ recommended the DNR grant the excavation permit.

The commissioner adopted the majority of the ALJ’s factual findings and legal conclusions but denied the permit. The commissioner based the denial on three grounds: (1) the prohibition against “excavation intended to extend riparian rights to nonriparian lands or to promote the subdivision and development of nonripari-an lands”; (2) the failure of the project to “conform to state, regional, and local water and related land resource management plans” and to comply with applicable shoreland ordinances; and (3) Bloom-quist’s alternative access to Whitefish Lake that “would result in less environmental impact.”

In this certiorari appeal, Bloomquist contends that the commissioner’s determination was based on errors of law because it failed to take into account his vested riparian rights and did not provide legally sufficient grounds for the denial. He also argues that the decision was arbitrary and capricious because it fails to provide adequate reasons for rejecting the ALJ’s recommendation, treats similarly situated property differently, and does not address the permit’s effect on the natural habitat.

ISSUES

I. Did the commissioner err by denying the permit on legally insufficient reasons?

II. Was the commissioner’s decision arbitrary and capricious?

ANALYSIS

We may reverse or modify an agency’s decision only if it is in violation of a constitutional provision, in excess of the agency’s statutory authority or jurisdiction, made upon unlawful procedure, affected by other error of law, unsupported by substantial evidence, or arbitrary and capricious. Minn.Stat. § 14.69 (2004). The decision of an agency is presumed to be correct, and we ordinarily accord deference to an agency in its field of expertise. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977).

I

Bloomquist’s primary contention is that the commissioner’s bases for denying the permit are not legally sufficient. Within the framework of appellate authority to modify or reverse, we interpret this contention as a claim that the commissioner’s determination is unsupported by substantial evidence or relies on an error of law.

Bloomquist first challenges the commissioner’s determination that he did not have vested riparian rights in the channel connecting the pond to Whitefish Lake. Riparian rights are the rights to reasonably use the surface of waters abutting a parcel of real property. Johnson v. Seifert, 257 Minn. 159, 168-69, 100 N.W.2d 689, 696-97 (1960). A person does not own the water; rather, a person who owns a lakeshore or lakebed has the riparian right to use and enjoy the water. Pratt v. State, Dep’t of Natural Res., 309 N.W.2d 767, 772 (Minn.1981). “Riparian rights are subordinate to the rights of the public and subject to reasonable control and regulation by the state.” State v. Kuluvar, 266 Minn. 408, 418, 123 N.W.2d 699, 706 (1963).

Bloomquist claims he has prescriptive riparian rights to use the channel. A party may acquire a right by prescription if the claimant can prove open, continuous, actual, hostile, and exclusive use for a period of fifteen years. Heuer v. County of Aitkin, 645 N.W.2d 753, 759 (Minn.App.2002); see also Minn.Stat. § 541.02 (setting statutory period at fifteen years). Although use may presumptively be hostile or adverse, this presumption is rebutted by evidence that the use was permissive. Ehle v. Prosser, 293 Minn. 183, 190-91,197 N.W.2d 458, 463 (1972). Permissive use generates no prescriptive rights, and, if the use was permissive at inception, it must become adverse with the owner’s knowledge before any prescriptive rights can arise. Id. at 191, 197 N.W.2d at 463.

The facts and the law do not support Bloomquist’s claim of prescriptive riparian rights. First, his use of the channel, since inception, was permissive. The 1961 permit stated that it was “permissive,” that it did not confer any “property rights either in real estate or material, or any exclusive privileges,” and that it authorized Schram to maintain the channel subject to DNR approval. The 1983 permit also authorized Schram’s estate to excavate and maintain the channel and contained the same permissive language as the 1961 permit. Consequently, Bloom-quist’s use was never hostile or adverse and he acquired no prescriptive rights, riparian or otherwise, in the channel.

Second, Bloomquist cannot acquire rights in public property by prescription, and the channel, when it existed, was part of a public waterway. See Minn.Stat. § 541.01 (2004) (“[N]o occupant of a public way, levee, square, or other ground dedicated or appropriated to public use shall acquire, by reason of occupancy, any title thereto.”); Heuer, 645 N.W.2d at 757 (applying prohibition against acquiring title to public land by adverse possession to acquiring use of public land by prescriptive easement). The 1961 permit states that any “extension of [Whitefish Lake] resulting from work authorized by this permit shall become public waters and left open and unobstructed for use by the public.”

Bloomquist next challenges each of the commissioner’s reasons for denying the permit, arguing that they were based on errors of law and unsupported by substantial evidence. The DNR limits the excavation of materials from the beds and shorelines of public waters to preserve their natural state, to ensure compatibility with the water’s capabilities, to assimilate the excavation, and to protect the public waters from adverse effects. Minn. R. 6115.0200, subp. 1 (2003). The DNR limits the nature, degree, and purpose of excavations. Id. Its applicable rule expressly prohibits certain types of excavation, and its enumerated list includes two prohibitions that formed the basis for the denial of Bloomquist’s permit. Id., subp. 3 (2003). First, excavation is prohibited when the “excavation is intended to extend riparian rights to nonriparian lands, or to promote the subdivision and development of nonriparian lands.” Id., subp. 3(B). Second, the DNR may not grant an excavation permit when access to the water “can be reasonably attained by alternative means which would result in less environmental impact.” Id., subp. 3(A).

The commissioner first determined that the DNR may not issue the permit because the excavation was “intended to extend riparian rights to nonriparian lands, or to promote the subdivision and development of nonriparian lands.” This determination is supported by the record. Bloom-quist seeks the permit for development of his property, and this development could create subdivided plots that are adjacent to the pond. The effect of establishing a channel between the pond and Whitefish Lake would be to extend the surface of the lake to enable future owners of subdivided plots, who would otherwise have no riparian rights to the lake, to acquire them. Although the development is prospective, the DNR nonetheless has the authority to deny an excavation permit when the evidence demonstrates that the excavation is for the purpose of a proposed development or impermissible extension of rights. See In re Excavation of Erickson Lake, 392 N.W.2d 636, 638-39 (Minn.App.1986) (sustaining permit denial in light of owner’s refusal to agree not to subdivide his land because of possible extension of riparian rights to nonriparian lands). The motivation behind Bloomquist’s permit application was to effectuate the transfer of his land to Northern Lakes for development purposes, and the potential increase in his property value from the proposed excavation suggests that additional plots will acquire access and rights to the lake.

The commissioner also rejected the permit application because of its failure to conform to “state, regional and local water and related land resource management plans” and the inconsistency with applicable “shoreland ... management standards and ordinances for the waters involved.” The record supports these conclusions. The evidence shows that the excavation of the channel would violate a Crow Wing County ordinance against removing a sediment ridge and that Bloomquist needed a variance from the county to proceed with the project. This county ordinance, entitled “Dirt Removal in Shore Land Areas,” appears to be part of both local water and related land-resource management plans and a shoreland management standard or ordinance. Although this reason alone might not be a sufficient basis to deny the permit, Bloomquist has offered no evidence that he has a variance or that a variance is obtainable. Therefore, the commissioner did not err by concluding that the excavation is prohibited because of conflicts with applicable local management plans and ordinances.

The commissioner’s third basis for denying the permit is Bloomquist’s existing access to Whitefish Lake. The determination of accessibility is a factual question, and we will not substitute our judgment for that of the administrative body when a factual finding is properly supported by the evidence. See Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963) (refusing to disturb commissioner’s determination “merely because the court does not agree”). An agency’s factual findings are properly supported by the evidence when the record contains “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.” Soo Line R.R. v. Minn. Dep’t of Transp., 304 N.W.2d 301, 306 (Minn.1981) (quotation omitted).

The record shows that Bloomquist currently has access to the lake through an existing dock situated on the lake. This dock has been used as his exclusive means of obtaining access to Whitefish Lake since the channel silted in. Bloomquist contends that he cannot reasonably use this access because his age precludes making the necessary descent down the steep embankment. The commissioner found, however, that the dock is mostly used by Bloomquist’s children and that the acknowledged purpose for the channel excavation is for development, not because Blo-omquist and his wife are getting older. Additionally, the commissioner determined that Bloomquist failed to meet his burden of showing that the proposed excavation would affect the environment less than the existing access. The evidence reasonably supports these determinations.

II

Bloomquist secondarily contends that the commissioner acted arbitrarily and capriciously by (1) rejecting the ALJ’s report without explanation, (2) treating similarly situated properties differently, and (3) denying the permit without making a finding that it would be detrimental to significant fish and wildlife habitat.

An agency’s decision is arbitrary and capricious if it is an exercise of the agency’s will, rather than its judgment, Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn.1977), or if the decision is based on a whim, or is devoid of articulated reason. Mammenga v. State, Dept. of Human Servs., 442 N.W.2d 786, 789 (Minn.1989). When the record leaves room for two opinions on the matter, an agency’s decision is not arbitrary and capricious. In re Friedenson, 574 N.W.2d 463, 467 (Minn.App.1998), review denied (Minn. Apr. 30, 1998). And conclusions are not arbitrary and capricious as long as a rational connection exists between the facts found and the choice made. In re Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn.2001); see also In re Am. Freight Sys. Inc., 380 N.W.2d 192, 196 (Minn.App.1986) (holding that agency did not act in arbitrary and capricious manner by adopting ALJ’s factual findings but not its conclusions when agency explained its reasoning).

Although an agency is not bound by the findings, conclusions, and recommendations of the ALJ, the agency should not take lightly the ALJ’s findings. In re Orr, 396 N.W.2d 657, 662 (Minn.App.1986). Failure to explain on the record reasons for deviating from the ALJ’s findings can be evidence of an arbitrary and capricious decision. Id.; see also Minn.Stat. § 14.62, subd. 1 (2004) (stating that decision or order that rejects or modifies finding of fact, conclusion, or recommendation contained in ALJ’s report must include reason for each rejection or modification).

The commissioner adopted almost all of the ALJ’s factual findings, and each of the modifications and additions were supported by references to the record. The commissioner also produced a five-page memorandum, explaining the deviations from the ALJ’s report and articulating a rational connection between the factual findings and legal conclusions. This careful consideration precludes a determination that the commissioner acted in an arbitrary and capricious manner.

Bloomquist also argues that the commissioner treated similarly situated properties differently by granting a permit to Driftwood Resorts to excavate a channel connecting a bay to Whitefish Lake. But an agency need not rigidly adhere to precedent, and, when evidence in the record differs from previous cases, results may differ as well. In re Northern States Power Gas Utility, 519 N.W.2d 921, 925 (Minn.App.1994). Bloomquist’s property and Driftwood Resorts are not similarly situated for two reasons. First, the excavation permit granted to Driftwood Resorts was to reconnect a natural bay of Whitefish Lake. Bloomquist’s pond, by contrast, was never a natural part of the lake. Second, and significantly, Driftwood Resorts was already developed, and thus the permit could not result in the extension of riparian rights to undeveloped non-riparian lands.

Finally, Bloomquist challenges the commissioner’s rejection, without explanation, of the ALJ’s conclusion that the excavation would not be “detrimental to significant fish and wildlife habitat.” This finding, however, is not necessary for denial of a permit application because it is only one factor among multiple factors that prohibits issuance of a permit. See Minn. R. 6115.0200, subp. 3 (listing factors that prohibit issuance of excavation permit). The commissioner provided a detailed explanation of the existence of three limiting factors. It is not necessary to address every reason that would weigh against granting the permit.

DECISION

The commissioner properly concluded that the permit applicant has no vested riparian rights to the channel. Substantial evidence supports the commissioner’s conclusion that the permit would impermissi-bly extend riparian rights to nonriparian lands and is intended for the purpose of development. Additionally, substantial evidence supports the commissioner’s conclusion that the excavation would violate local requirements and that the applicant has alternative access to the lake. The denial of the permit application was not arbitrary and capricious because the commissioner’s order incorporated reasoned fact-finding and the conclusions were supported by the record and applicable legal authority. Because the commissioner correctly applied the law and relied on substantial evidence in the record, we affirm.

Affirmed.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    Larry D. ROWE, Relator, v. DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, Respondent.
    No. A04-2200.
    Court of Appeals of Minnesota.
    Oct. 4, 2005.

      Peter B. Knapp, William Mitchell Law Clinic, St. Paul, MN, for relator.
    Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent Commissioner.
    Considered and decided by PETERSON, Presiding Judge; WRIGHT, Judge; and FORSBERG, Judge.

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

   OPINION

WRIGHT, Judge.

Relator challenges the senior unemployment review judge’s dismissal of his unemployment-benefits appeal as untimely. We affirm in part and reverse in part.

FACTS

In 1995, relator Larry Rowe suffered a viral heart attack that resulted in congestive heart failure. Rowe’s congestive heart failure worsened steadily over the next few years; and in 2002, Rowe was terminated from his job and placed on a waiting list for a heart transplant. Rowe attempted to continue working, but he experienced difficulty maintaining steady employment because of his health condition. Rowe applied for social security disability insurance benefits on April 22, 2003, and began receiving them shortly thereafter. Rowe then established an unemployment-benefits account on May 4, 2003 (2003 account), and collected unemployment benefits intermittently over the next year. One year later, Rowe established a second unemployment-benefits account effective May 2, 2004 (2004 account).

The Minnesota Department of Employment and Economic Development (the department) determined that Rowe was ineligible for benefits effective January 18, 2004, on the 2003 account and ineligible for benefits effective May 2, 2004, on the 2004 account. In both cases, the department adjudicator reasoned that, because Rowe was receiving primary social security disability insurance benefits, he was ineligible to receive unemployment benefits. The department sent Rowe a determination of overpayment in the amount of $4,554.

Rowe appealed both determinations to an unemployment law judge (ULJ). The ULJ found that Rowe began receiving social security disability insurance benefits in April 2003, which rendered him ineligible to receive unemployment benefits during the same period. The ULJ modified the department adjudicator’s determination on the 2003 account, concluding that Rowe was ineligible for benefits effective May 4, 2004, rather than January 18, 2004. The ULJ affirmed the department’s finding of ineligibility on the 2004 account effective May 2, 2004. Both decisions were issued on June 11, 2004.

Based on the ULJ’s decisions, Rowe believed that the determination of overpayment was no longer in effect. But on August 7, 2004, Rowe received another bill from the department for $4,554. Rowe contacted the department to report the error.

After Rowe reported receiving the overpayment notice, the ULJ issued an amended decision on August 18, 2004, correcting the date of ineligibility on the 2003 account from May 4, 2004 to May 4, 2003, the date the account was established. Because of this change, Rowe received a determination of overpayment from the department in the amount of $10,764. On September 3, 2004, Rowe appealed both of the June 11 decisions to a senior unemployment review judge (SURJ). The SURJ dismissed the appeals as untimely. This certiorari appeal followed.

ISSUE

Did the senior unemployment review judge err in dismissing relator’s appeal as untimely?

ANALYSIS

We defer to the factual findings of the senior unemployment review judge (SURJ) if they are reasonably supported by evidence in the record; we exercise independent judgment with respect to questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989). The timeliness of an appeal presents a question of law, which we review de novo. Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn.2000); Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn.App.1999).

Rowe argues that the SURJ erred in dismissing his appeal, filed on September 3, 2004, as untimely because the August 18, 2004 amended decision, rather than the June 11, 2004 decision, triggered the appeal. To resolve this issue, we must determine whether the August 18, 2004 amended decision is valid. If it is not, the June 11, 2004 decision is the final decision of the department, and the SURJ properly dismissed Rowe’s appeal.

An administrative agency’s jurisdiction depends entirely on the statute under which it operates. State ex rel. Spurck v. Civil Serv. Bd., 226 Minn. 253, 259, 32 N.W.2d 583, 586 (1948). Neither agencies nor courts may enlarge an agency’s powers beyond that contemplated by the legislature. Peoples Natural Gas Co. v. Minn. Pub. Utils. Comm’n, 369 N.W.2d 530, 534 (Minn.1985). An agency’s action taken without statutory authority ordinarily is void. McKee v. Ramsey County, 310 Minn. 192, 195, 245 N.W.2d 460, 462 (1976). Thus, whether the August 18 decision is valid depends primarily on the interpretation of the unemployment-benefits statutes. The construction of a statute is a question of law subject to de novo review. Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996). The party seeking review on appeal has the burden of establishing that an administrative agency exceeded its statutory authority. Id. (citing Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn.1977)).

The commissioner, on its own motion, may reconsider a determination of eligibility to receive unemployment benefits that has not become final. Minn.Stat. § 268.101, subd. 4 (2004). But there is not a comparable statutory provision authorizing a ULJ to reconsider or amend a decision sua sponte. See Erickson v. Super Valu, 343 N.W.2d 698, 701 (Minn.App.1984) (noting that under predecessor unemployment benefits scheme, no one other than commissioner, on its own motion, has the authority to reconsider its determination). Rather, if the ULJ makes an error in a decision, the relator or the employer may appeal the decision to the SURJ within 30 days. Minn.Stat. § 268.105, subd. 2(a) (2004). The SURJ also may, on its own motion, order a de novo review of the ULJ’s decision within the 30-day review period. Id. But if 30 days elapse without an appeal or review by the SURJ, the decision of the ULJ becomes the “final department decision.” Id., subd. 1(c). Under this statutory scheme, a ULJ’s sua sponte amendment of a decision exceeds the ULJ’s statutory authority.

Minnesota caselaw has long recognized, however, that administrative agencies have the inherent power to correct erroneous decisions when the statute does not prohibit such correction and the rights of the parties are not prejudiced. Anchor Cas. Co. v. Bongards Coop. Creamery Ass’n, 253 Minn. 101, 104, 91 N.W.2d 122, 124 (1958); Nieszner v. Minn. Dep’t of Jobs & Training, 499 N.W.2d 832, 838 (MinnApp.1993); Pfalzgraff v. Comm’r of Econ. Sec., 350 N.W.2d 458, 460 (Minn.App.1984).

In Anchor Casualty, the Minnesota Supreme Court held that the commissioner of agriculture had implied authority to promptly reverse an erroneous determination. 253 Minn, at 106-07, 91 N.W.2d at 126. The supreme court noted: “ ‘The power of correction and revision, the better to serve the statutory policy, is of the very nature of such governmental agencies.’ ” Id. at 106, 91 N.W.2d at 126 (quoting Handlon v. Town of Belleville, 4 N.J. 99, 71 A.2d 624, 627 (1950)). This power remains in effect until jurisdiction is lost by appeal or until a reasonable time has run. Id. Such reasonable time would at least be coextensive with the time allotted by statute for review. Id.

Applying Anchor Casualty in the unemployment benefits context, the Pfalzgraff court upheld an appeal tribunal chairman’s issuance of an amended decision on its own motion. 350 N.W.2d at 460. We noted that the “chairman’s reversal came within the 30 day appeal period” and reasoned that, because the amended decision was later vacated and the matter remanded for an evidentiary hearing, the relator was not prejudiced by the irregularities of the case. Id. We have similarly held that the chief commissioner’s representative had the inherent power to sua sponte vacate a decision of a representative of the commissioner within the 30-day appeal period, after a rehearing, when the chief believed that the decision was clearly erroneous as a matter of law. Stearns-Hotzfield v. Farmers Ins. Exch., 360 N.W.2d 384, 390 (Minn.App.1985).

Because a relator has 30 days to appeal a decision of the ULJ, Minn.Stat. § 268.105, subd. 2(a), the ULJ’s implied power to correct an erroneous decision arguably exists for the same 30-day period. See Anchor Cas. Co., 253 Minn, at 106-07, 91 N.W.2d at 126. Section 268.105 specifically provides, however, that, if an appeal is not filed within the 30 days, the ULJ’s decision becomes the final decision of the department. Minn.Stat. § 268.105, subd. 1(c). The 30-day statutory time period is “absolute and unambiguous” and must be strictly construed. Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976); see also King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn.App.1986) (stating that “the time for appeal from decisions of all levels of the [department [of employment and economic development] should be strictly construed”), review denied (Minn. Aug. 13, 1986). When a decision becomes final, the department is deprived of jurisdiction to conduct further review. In re Emmanuel Nursing Home, 411 N.W.2d 511, 516 (Minn.App.1987), review denied (Minn. Oct. 13, 1987); Johnson v. Metro. Med. Ctr., 395 N.W.2d 380, 382 (Minn.App.1986).

Here, unlike in Pfalzgrajf and Steams-Hotzfield, the ULJ did not amend the June 11, 2004 decision within the 30-day appeal period. Rather, the ULJ corrected the error 68 days after it issued its original decision — 38 days after the decision became final. Once the ULJ’s decision became final, the entire department— including the ULJ and the SURJ — lacked jurisdiction to consider the matter further. Nieszner, 499 N.W.2d at 838. Without jurisdiction, the ULJ lacked the legal authority to correct an erroneous decision. See Mackler v. Bd. of Educ., 16 N. J. 362, 108 A.2d 854, 857-58 (1954) (holding that administrative decisions are subject to reconsideration as long as the agency still retains control of the proceeding); Boydston v. Liberty Northwest Ins. Corp., 166 Or.App. 336, 999 P.2d 503, 506 (2000) (holding that although administrative agency has inherent power to correct decisions, this power is curtailed by statutory language providing specified period of time when agency decision becomes final).

Because the 30-day appeal period set forth in Minn.Stat. § 268.105, subd. 1(c), is strictly construed against the relator and plainly establishes when a decision becomes final, we conclude that after 30 days have elapsed, the decision is final as to the relator and as to the department. When the legislature has not conferred on the ULJ the statutory authority to amend a final decision after the department has lost jurisdiction, we are without legal authority to do so. See Hutchinson Tech., Inc. v. Comm’r of Revenue, 698 N.W.2d 1, 12 (Minn.2005) (reiterating that courts may not write into a statute what legislature did not); Hagerty v. Hagerty, 281 N.W.2d 386, 389 (Minn.1979) (restating the settled rule that extensions of statutory provisions are to be made by legislature, not courts); Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating that changes to a statute must be made by legislature because “the courts cannot supply that which the legislature purposely omits or inadvertently overlooks”).

Having concluded that the August 18 amendment is without legal effect and the June 11, 2004 decision is the final decision of the department, we affirm the SURJ’s dismissal of Rowe’s September appeal as untimely. But because the record demonstrates that the department is proceeding as if the August 18 amendment is the final department decision, we reverse the SURJ’s order to the extent that it implicitly reaffirms the August 18 order, and we reinstate the June 11, 2004 decision, which creates no obligation to reimburse for an overpayment.

DECISION

Because the ULJ lacked express statutory authority or the inherent power to amend its original decision after the 30-day appeal period had run, the August 18 amendment is void and the June 11 decision is the final decision of the department.

Affirmed in part and reversed in part.

      . Effective for decisions issued after August 1, 2004, the statutoiy title of the decisionmaker conducting review proceedings under Minn. Stat. § 268.105, subd. 2 (2004), has been changed from the representative of the commissioner to "senior unemployment review judge." 2004 Minn. Laws ch. 183, § 71.

      . Rowe appealed both of the SURJ's orders dismissing his appeals as untimely. But because Rowe does not challenge the SURJ's dismissal of his appeal on the 2004 account, we address only the SURJ's order dismissing the appeal on the 2003 account.

      . The department argues that the August 18 amendment merely corrected a clerical error in the June 11 decision. According to the department, based on the reasoning section of the June 11 decision, the affected parties clearly understood that the "May 4, 2004” date was erroneous and that the date should have read "May 4, 2003.” Correcting the date of ineligibility, however, was not a substantively insignificant alteration. Rather, the date determined the amount of Rowe's financial obligations to the department; any change to that date that effectively increased the amount of Rowe's overpayment prejudiced Rowe. Nieszner, 499 N.W.2d at 838 (finding relator was prejudiced when department reversed its decision in favor of employer). We decline to assume that Rowe understood that a date of ineligibility in the decision section of a ULJ decision was erroneous based on findings in the reasoning section of the decision. Moreover, if the parties so clearly understood the June 11 decision, the ULJ would not have needed to issue an amendment to trigger the $10,764 overpayment determination. Rather, Rowe would have been receiving bills for $10,764 immediately following the issuance of the June 11 decision.


author: KLAPHAKE, Judge.

text:
    RILEY BROS. CONSTRUCTION, INC., Respondent, v. Craig SHUCK, d/b/a Beaver Masonry, Appellant.
    No. A04-2133.
    Court of Appeals of Minnesota.
    Oct. 4, 2005.

      Derek A. Trosvig, Swenson Lervick Sy-verson Anderson Trosvig Jacobson, P.A., Alexandria, MN, for respondent.
    John E. Mack, New London, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and WILLIS, Judge.
   OPINION

KLAPHAKE, Judge.

Craig Shuck, d/b/a Beaver Masonry, appeals from the district court’s award of a $78,522 judgment to respondent Riley Brothers Construction. Appellant argues: (1) the evidence presented at the bench trial fails to support the district court’s determination that a contract existed between the parties; (2) the evidence does not support application of the doctrine of promissory estoppel; (3) the district court erred in its determination of damages; and (4) the district court erred in evidentiary rulings, which entitle appellant to a new trial/ Because the evidence reasonably supports the district court’s findings and because the court did not err in its application of the law, we affirm.

FACTS

In the spring of 2002, the city of Wahpe-ton, North Dakota, requested bids for a project that involved the construction of parking lots and roadways. Respondent is a large construction company specializing in highway work and, upon learning of the Wahpeton project, decided to submit a “prime bid.” Respondent obtained a complete set of specifications and blueprints for the project, which involved substantial concrete work. Respondent performs excavation and construction of bituminous surfaces including roads and parking lots; because it does not perform concrete work, respondent intended to rely on subcontractors to complete that portion of the project.

Appellant • runs Beaver Masonry as a sole proprietorship and is engaged in the concrete and masonry business. Appellant learned that respondent intended to submit a prime bid for the Wahpeton project, and on March 21 contacted respondent.

Appellant spoke with Jeff Anderson, one of respondent’s project managers, regarding its plans for the project. Anderson told appellant that respondent had plans, but that he could not send them to him. Anderson offered to send appellant the summary specifications and “bidder’s proposal” for the concrete work, which he faxed to appellant that same day. Anderson testified that he faxed the pages so that appellant could “see if he was interested in bidding the job” and that he did not intend appellant to prepare his bid solely from theses pages.

On March 26, appellant faxed his bid for the concrete work to respondent. Appellant’s bid contained a price for each section of the concrete work and provided that the total cost of the concrete work for the project was $537,281. The bid provided that the “price includes all control joints, laser screed concrete, gravel base will be graded and ready for concrete by site contractor.”

As Anderson was preparing to submit the prime bid to the City of Wahpeton, he determined that appellant’s bid was the lowest, but noticed that his total did not include approximately $4,000 that appellant had listed for the “tank slab” and that the bid did not list whom it was from. On April 1, Anderson called appellant to confirm that the $4,000 for the tank slab should be included in the total cost and asked appellant to resubmit his bid on company letterhead. Appellant faxed a second bid to respondent that contained his company information. Anderson then prepared respondent’s prime bid for the project using appellant’s bid without “marking up” the price for the concrete work.

The next lowest bid respondent received for the concrete work on the project was approximately $711,000; appellant’s bid was approximately 24% lower than this bid. Respondent’s president, Joe Riley, testified that bids for the same work may vary by 25% to 30%, and that he has seen variations as high as 40%. He testified bids vary because of a contractor’s time schedule, whether the contractor has a skilled foreman and crew, and many other factors. Because of these variations, he did not believe that appellant’s bid was disproportionately low.

On April 1, Anderson drove to Wahpe-ton and submitted respondent’s bid for the project in the amount of $1,522,058. That afternoon, the bids were opened and respondent was the lowest bidder.

On April 2, appellant telephoned to inquire whether it was the lowest bidder and whether respondent had used appellant’s bid. Appellant spoke with Jim Rentz, who was also a project manager for respondent. Rentz told appellant that respondent was the lowest bidder and that it had used appellant’s numbers when preparing its bid. After learning that respondent had used his bid, appellant proceeded to tell Rentz how many cubic feet of concrete his company could complete in a day and that he would be using a new machine.

On April 24, respondent was offered the general contract for the Wahpeton project. Work began on the Wahpeton project on May 14, 2002.

On May 21, Anderson telephoned appellant and requested that he attend a meeting at the job site to discuss job responsibilities and timelines for the concrete work. The next day, appellant attended the meeting at the job site with Anderson and another foreman. Appellant admitted that he knew at the time of the meeting that respondent intended to use him for the concrete work and that “callin[g][him] out to the meeting” was a “binding thing.”

At the meeting, appellant got his first opportunity to review the blueprints for the project. After returning home, he compared his bid to the requirements of the blueprints and realized there were substantial differences between his bid and the specifications. ■ In making his bid, appellant had assumed the tank slab consisted of eight-inch slabs of concrete, but the blueprints required the slabs to be three feet thick. Appellant testified that in order to complete the tank slab according to the blueprints would require an additional $80,000 over what he had bid. He also discovered that certain portions of the concrete were “reinforced,” which he testified would mean that sawing joints into the concrete would require an additional $20,000 over what he figured in his bid. Appellant further noticed that the contract was a “Davis-Bacon Act” contract, which would require paying his workers a higher wage.

Two days after the meeting, Anderson called appellant to ask if he wanted information that respondent had obtained regarding concrete materials. The conversation lasted 12 minutes. Appellant did not raise his concerns regarding his bid during this call. Anderson attempted, unsuccessfully, to contact appellant again over the next few days. On June 5, Anderson again spoke with appellant at which time appellant informed Anderson he would not enter into a contract to perform the concrete work for the price that he submitted in his bid.

On June 11, Joe Riley called appellant to discuss his refusal to perform the concrete work. Appellant informed Riley that he would need an additional $80,000 to complete the concrete work and that his price did not include sawing and sealing joints in the concrete. Riley testified that when the conversation ended, he was certain that appellant would not perform under his bid and that he then started looking for another contractor to perform the work. Riley also testified that he did not have the option of asking the City of Wahpeton for additional money to perform the concrete work.

Respondent was able to get two contractors to perform all the concrete work. Respondent paid a total to the two companies of approximately $620,000; about $79,000 more than appellant’s bid for the concrete work.

After completion of the project, respondent sued appellant, alleging that he had breached the contract formed between the parties or, in the alternative, that promissory estoppel should be applied to enforce appellant’s promise. In March 2004, following a bench trial, the district court found that appellant’s quote constituted a firm bid to perform the concrete work' and that respondent accepted the offer on May 21, 2002, when it requested that appellant attend the meeting to discuss the project. The court also found that appellant’s bid was not so disproportionately low as to alert respondent that there might be an error in the bid.

The district court further determined that even if it erred in finding a contract existed, respondent “met its burden of proving all the elements of promissory es-toppel.” The court reached this conclusion based on its findings that appellant intended respondent to rely on his bid for the concrete work and knew that respondent would rely on that bid, that respondent did in fact rely on appellant’s bid, and that justice required enforcing the promise because respondent suffered damages from appellant’s refusal to honor his bid.

The district court finally determined that the appropriate measure of damages under either theory was the difference between appellant’s bid and the amount respondent actually paid for the completion of the concrete work, which was approximately $78,500, and entered judgment for respondent in this amount.

ISSUES

1. Does the evidence support the district court’s determination that a binding contract was formed between the parties?

2. Did the district court commit evi-dentiary errors that entitle appellant to a new trial?

ANALYSIS

The existence of a contract is generally a question of fact. Morrisette v. Harrison Int'l Corp., 486 N.W.2d 424, 427 (Minn.1992). If there is reasonable evidence tending to support the district court’s findings of fact, this court will not reverse those findings. Rogers v. Moore 603 N.W.2d 650, 656 (Minn.1999).

Minnesota follows the objective theory of contract formation, under which the parties’ outward manifestations are determinative, rather than either party’s subjective intent. TNT Props., Ltd. v. Tri-Star Developers LLC, 677 N.W.2d 94, 102 (Minn.App.2004). Thus, a party’s intention to make an offer, or to accept an offer made to him, may be inferred from his words and conduct. Western Insulation Servs., Inc. v. Cent. Nat’l Ins. Co. of Omaha, 460 N.W.2d 355, 358 (Minn.App.1990) (acceptance); Peters v. Mut. Benefit Life Ins. Co., 420 N.W.2d 908, 912-13 (Minn.App.1988) (offer).

The district court here found that appellant’s bid “constituted an offer to perform the concrete subcontract at the per unit prices contained within his bid” and that respondent accepted the bid on May 21, 2002, when Anderson called appellant to schedule a meeting at the work site to review the timelines for completing his work at the site. Appellant argues that the one-page document that he submitted was “an estimate” and was not intended to be a firm offer. But the district court concluded that, viewed objectively, the document was a firm offer. We will not reverse that finding if there is reasonable evidence to support it.

The record evidence shows that appellant contacted respondent requesting permission to submit a bid to perform the concrete work on the project. After receiving a 14-page fax from respondent outlining the requirements for the concrete work, appellant submitted a one-page document providing that completion of the concrete work for the project would total approximately $540,000 and that the “price includes all control joints, laser screed concrete, gravel base will be graded and ready for concrete [by] site contractor.” Appellant testified that he was aware that respondent would rely on his bid for concrete work when it prepared its bid for the overall project and that he intended for respondent to rely on his bid. Further, the specifications for the project, which were provided to appellant, clearly state that the general contractor cannot charge more for the work performed than the amount listed in its bid, which would lead an objective reader to conclude that he or she could not simply estimate what the costs might be. This evidence is sufficient to support the district court’s finding that appellant’s one-page document was an offer.

It is well-settled law in Minnesota that unless an offer provides a date at which the offer expires or the offeror revokes the offer, the offer remains open for a reasonable time. Feges v. Perkins Rests., Inc., 483 N.W.2d 701, 708 (Minn.1992) (stating that ability to accept an offer is lost if the offer is revoked at any time before the offer is accepted); Stone v. Harmon, 31 Minn. 512, 515, 19 N.W. 88, 89 (1884) (holding that when offer does not contain a deadline, acceptance must occur within reasonable time); see also Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 785 (Minn.2004) (applying Stone to a lease containing right of first refusal for sale of property).

Here, there was no language in appellant’s bid providing for an expiration of the offer, and the evidence reasonably supports the district court’s finding that respondent accepted the offer before it was revoked. In particular, Rentz told appellant shortly after April 1 that respondent was the lowest bidder on the project and that appellant’s numbers had been used. Anderson contacted appellant on May 21 and requested that he meet with respondent’s project supervisors at the project site. Appellant acknowledged that when Anderson requested that he attend the meeting, he knew that respondent intended to have him do the concrete work, but appellant did not communicate to respondent his unwillingness to perform according to the terms of his bid until June 5, more than two weeks after May 21, which is the date that the district court found that respondent accepted the offer. Finally, appellant himself testified that it is not uncommon for an “estimate” to “stay open” for 30 to 45 days. Under these circumstances, we do not believe that an unreasonable amount of time passed before respondent accepted appellant’s offer. See Contstructors Supply Co. v. Bostrom Sheet Metal Works, Inc., 291 Minn. 113, 120, 190 N.W.2d 71, 75 (1971) (stating that general contractor should have reasonable time to accept bid after being awarded general contract).

Appellant argues that the contract lacked consideration because respondent was not bound by his bid and there was no mutuality of obligation between the parties. Although appellant is correct in stating that respondent was not initially bound by his bid — just as no offeree is bound by the terms of an offer until he accepts it— when respondent accepted appellant’s offer to perform the concrete work, respondent was contractually obligated to pay appellant approximately $540,000 for the work he offered to perform. A promise to pay a person in exchange for work he performs is the quintessential example of consideration and needs no further discussion.

Citing only his own testimony, appellant also argues that in the construction trade a subcontractor does not expect his bid to be binding until there is a signed construction contract. Unless the contract is covered by the statute of frauds, which no one suggests is the ease here, a signed agreement is generally not required for formation of a contract. Aratex Servs., Inc. v. Blue Horse, Inc., 497 N.W.2d 283, 285-86 (Minn.App.1993), review denied (Minn. May 11, 1993); see also Minn.Stat. §§ 513.01-07 (2004) (providing types of contracts covered by statute of frauds). While the parties could have agreed that a written agreement was a condition precedent to completion of a contract, there is no evidence to suggest that both parties agreed to such a course of conduct. Asbestos Prods., Inc. v. Healy Meek Contractors, Inc., 306 Minn. 74, 78, 235 N.W.2d 807, 809 (1975) (“[w]hen contracting parties make the reduction of their agreement to writing and its signature by them a condition precedent to its completion, there will be no contract until that is done.”). Although appellant may have believed that he could not be held to his offer until there was a written contract, his mistaken belief that respondent’s outward manifestations of assent to his offer were insufficient to form a contract does not absolve him of his obligations under what the law recognizes as a valid contract.

Appellant does not challenge the district court’s finding that he breached the contract when he told respondent that he would not perform the work unless he was paid significantly more money. Nor does he specifically challenge the district court’s determination of respondent’s damages resulting from that breach, or the district court’s findings that the mistake in bidding the concrete work was solely his responsibility and that it was not so disproportionately low as to make respondent’s reliance on the bid unreasonable. However, because appellant discusses these issues at great length in his discussion of promissory estoppel, we will briefly address them here.

“An offeree will not be permitted to snap up an offer that is too good to be true; no agreement based on such an offer can ... be enforced by the acceptor.” Speckel v. Perkins, 364 N.W.2d 890, 893 (Minn.App.1985) (quotations omitted). Appellant’s bid was 24% lower than the next closest bid. Joe Riley testified that in his experience, bids for the same work can vary between 25% and 30%, and that he had seen variations as high as 40%. Riley testified that bids vary for many reasons, including the contractor’s availability and overhead, the skill and knowledge of the contractor’s crew, whether the contractor had special machinery, and whether the contractor could obtain favorable prices on material. Respondent did not employ concrete estimators or anyone with expertise in the concrete industry, while appellant had more than 15 years of experience in the concrete industry. We agree with the district court that it was reasonable for respondent to assume that a concrete contractor who is bidding on jobs with a value in excess of $500,000 will obtain all necessary information to properly prepare a bid and that appellant’s bid was not so disproportionately low as to alert respondent that the offer might be too good to be true.

Finally, although we conclude that the district court correctly determined that appellant breached the contract, we also affirm the district court’s alternative determination that respondent is entitled to recover under the doctrine of promissory estoppel. Application of promissory estop-pel requires a showing that (1) there was a clear and definite promise; (2) the promis-sor intended to induce reliance and such reliance occurred; and (3) the promise must be enforced to prevent injustice. Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 152 (Minn.2001). The district court found that respondent had proved each of these elements, and the record evidence reasonably supports these findings. With respect to the measure of damages under either breach of contract or promissory estoppel, the district court properly determined that respondent’s out-of-pocket losses were the difference between the amount it paid to other subcontractors to complete the concrete work and the amount that appellant had submitted in its bid to the City of Wahpeton.

II.

Appellant argues that the district court erred in excluding the expert testimony from two witnesses offered to prove “trade usage” regarding the nonbinding nature of “estimates.” Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). Before this court will order a new trial based on alleged evidentiary errors, appellant must demonstrate that the district court erred in its interpretation of law, or otherwise abused its discretion, and that the alleged error was prejudicial. See Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn.App.1998) (stating that party is not entitled to reversal of judgment based on erroneous evidentiary ruling unless party demonstrates prejudice).

Appellant’s only legal basis for challenging the district court’s evidentiary ruling is his claim that a party has a right to call witnesses to rebut an opponent’s testimony, citing this court’s opinion in Farmers Union Grain Terminal Ass’n v. Indus. Elec. Co., 365 N.W.2d 275 (Minn.App.1985), review denied (Minn. June 14, 1985). In Farmers Union, we noted that “[w]hat is proper rebuttal evidence rests almost wholly in the discretion of the court.” Id. at 277. We ultimately concluded that the district court’s decision to deny the plaintiffs request to recall an expert witness to rebut the testimony of the defendant’s expert was prejudicial error because the testimony was “unnecessary in the plaintiffs prima facie case, related to a critical issue, and was highly probative.” Id. at 278.

As discussed above, the only issue regarding appellant’s belief that the contract had to be in writing is whether both parties agreed that the execution of a written contract was a condition precedent to their being bound by the agreement. There is nothing in the record to suggest that either witness had any direct knowledge of such an agreement between the parties. Because the testimony was not highly probative of a crucial issue, appellant has failed to show that the district court erred in excluding the testimony.

DECISION

Reasonable evidence supports the district court’s determination that a contract was formed between the parties on May 21, 2002, when respondent’s words and actions established its objective intent to accept appellant’s offer to perform the concrete work on the Wahpeton project. Respondent is entitled to its out-of-pocket damages resulting from appellant’s breach of that contract.

Affirmed.

      . We do not address appellant's other conclu-sory claims of error, which are devoid of legal authority. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919-20 n. 1 (Minn.App.1994) (stating court need not address allegations unsupported by legal argument).


author: TOUSSAINT, Chief Judge.

text:
    Jean M. JACOBS, as Trustee for the next-of-kin of Robert Jacobs, deceased, Respondent, v. CABLE CONSTRUCTORS, INC., a Michigan corporation, Respondent, Sirti Limited Corp., a foreign corporation, Respondent, Seren Innovations, Inc., Respondent, and Transcontinental Insurance Company, et al., intervenors, Appellants, v. Western National Mutual Insurance Company, third party defendant, Respondent.
    No. A04-2191.
    Court of Appeals of Minnesota.
    Oct. 4, 2005.

      David Hilton Wright, Halleland, Lewis, Nilan, Sipkins & Johnson, Minneapolis, MN, for respondent Jean M. Jacobs.
    Richard P. Mahoney, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., Minneapolis, MN, for respondent Cable Constructors, Inc.
    Kyle E. Hart, Stephen A. Melcher, Fa-byanske, Westra & Hart, Minneapolis, MN, for respondent Sirti Limited Corp.
    Cooper S. Ashley, Maslon Law Firm, Minneapolis, MN; and Douglas L. Skor, Mark Solheim, Larson, King, L.L.P., St. Paul, MN, for respondent Seren Innovations.
    William M. Hart, Stacy A. Broman, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, MN, for appellants Transcontinental Insurance Company et al.
    James T. Martin, Gislason, Martin & Varpness, P.A., Minneapolis, MN, for respondent Western National Mutual Insurance Company.
    Considered and decided by TOUSSAINT, Chief Judge; KALITOWSKI, Judge; and WORKE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Following acceptance of their Minn. R. Civ. P. 68 settlement offers on three claims, appellants, who are excess insurers, sought to recoup from respondent, the primary insurer, the amounts appellants had contributed to the settlements. The parties brought cross-motions for summary judgment. The district court granted summary judgment to appellants with respect to one claim, on the ground that respondent had notice of appellants’ intent to recoup when the settlement offer was accepted, and to respondent with respect to the other two claims, on the ground that respondent did not have notice of appellants’ intent to recoup when these settlement offers were accepted. Appellants challenge the summary judgment granted to respondent, and respondent challenges the summary judgment granted to appellants with respect to one of the two claims.

FACTS

The relationship between respondents Seren Innovations (Seren), a contractor, and Cable Constructors, Inc. (CCI), its subcontractor, was governed by a contract that required CCI to provide commercial general liability coverage of at least $1 million for Seren and to defend and indemnify Seren on claims arising out of a project that gave rise to a gas explosion. Appellants Transcontinental Insurance Company and Continental Casualty Company (collectively, CNA) provided primary coverage of $1 million and excess coverage of $25 million to CCI for its defense and indemnification obligations to Seren. Respondent Western National Mutual Insurance Company (Western National) provided excess coverage of $1 million to Seren.

On December 11, 1998, a gas explosion at a project for which Seren and CCI were responsible killed Karl Klang, Robert Jacobs, and Carolyn Sandquist; it also injured several others and damaged property. From the multiplicity of lawsuits brought against Seren and CCI, three actions emerged: the Klang action, the Jacobs action, and the Robins Plaintiffs action, comprising the actions of plaintiffs represented by the law firm of Robins, Kaplan, Miller and Ciresi.

Western National agreed to pay $197,500 toward settlement of the Robins Plaintiffs action and $275,000 toward settlement of the Klang action. Western National then learned of a district court decision that CCI was required to indemnify Seren to the full extent of its coverage from CNA, $26 million. That decision was not appealed and became law of the case.

On December 23, 2003, CCI and Seren made a settlement offer in the Jacobs action under Minn. R. Civ. P. 68. Western National agreed to contribute the $527,500 remaining under its policy limit. Jacobs did not accept the offer.

On December 30, 2003, at a court-ordered settlement conference in the Jacobs action, Western National announced its intention to seek recoupment from CNA and made its contribution to the settlement conditional on its ability to recoup. Jacobs was offered and accepted an amount larger than that offered on December 23, although the amount contributed by Western National remained the same.

CNA then brought a third-party action against Western National, seeking an order that Western National be required to contribute to the Jacobs settlement without conditioning its contribution on its ability to recoup funds from CNA, and Western National counterclaimed against CNA for the $1 million it had contributed to the Klang and Robins Plaintiffs settlements in those actions.

ISSUES

1. Must acceptance of a Minn. R. Civ. P. 68 offer of judgment comply exactly with the terms of the offer?

2. Must an insurer that intends to recoup its contribution to a Minn. R. Civ. P. 68 settlement offer from another insurer give that insurer notice of the intent to recoup before the offer is accepted?

ANALYSIS

The relevant facts are not disputed. On appeal from summary judgment when the material facts are not in dispute, appellate review is limited to determining whether the district court erred in its application of the law. Wells Fargo Home Mortgage, Inc. v. Chojnacki, 668 N.W.2d 1, 3 (Minn.App.2003).

I.

Acceptance of Minn. R. Civ. P. 68 Offer of Judgment

A rule 68 offer of judgment is construed according to ordinary contract principles. Collins v. Minn. Sch. Of Business, Inc., 636 N.W.2d 816, 818 (Minn.App.2001), aff'd, 655 N.W.2d 320 (Minn.2003). It is well established that “to give rise to a binding contract, [the acceptance] must ... comply exactly with the requirements of the offer.” Minar v. Skoog, 235 Minn. 262, 265, 50 N.W.2d 300, 302 (1951) (emphasis in original), see also Abrahamson v. Abrahamson, 613 N.W.2d 418, 423 (Minn.App.2000); Rose v. Guerdon Indus., Inc., 374 N.W.2d 282, 284 (Minn.App.1985).

Jacobs had not accepted the December 23 offer by December 30, when another offer was made. CNA argues that the offer accepted by Jacobs on December 30 had been made on December 23. But Jacobs never accepted the December 23 offer separately and individually; that offer was accepted only as one element of the December 30 settlement agreement, as the conference transcript reflects.

And the terms of the agreement are as follows. Number one, the [Jacobs] Plaintiffs accept an offer of judgment in the amount of four million dollars on a non-Pierringer basis that was made on December 23, 2003. In addition, the plaintiffs accept the payment of [confidential] dollars from CNA Insurance Company on behalf of CCI....

Thus, there were two financial components to the agreement that was accepted: first, the original December 23 offer that had not previously been accepted and second, an additional payment. No binding contract was established until the December 30 settlement conference, when Jacobs accepted the exact terms of the offer made that day. The fact that one term of the offer had been made, but not accepted, previously is irrelevant.

II.

Notice of Intent to Recoup

CNA argues that Western National is not entitled to recoup its contribution to the Jacobs settlement because CNA did not have notice of Western National’s intent to recoup when Jacobs accepted the settlement offer. Western National argues that it is entitled to recoup the amount it contributed to the Klang settlement because CNA had constructive, if not actual, notice of Western National’s intent to recoup when Klang accepted the settlement offer. Neither argument has merit.

The record shows that CNA knew Western National intended to recoup its contribution before Jacobs accepted the offer. At the December 30 conference, counsel for Western National stated that, to the extent the settlement was “undermining any claim that Western National has for recoupment,” Western National did not agree to the settlement. He added,

I have said throughout the proceedings today that Western National does not go — is not going to pay [confidential] dollars towards this settlement without an agreement that it was retaining whatever rights it has.... Western National agrees to pay [confidential] dollars towards the settlement of the Jacobs claim on behalf of its insured, Seren Innovations, Inc., but only on the condition that it retains and does not waive its claims for reimbursement of all such amounts against [CNA].

The parties and the district court discussed Western National’s intent to recoup at length before Jacobs finally accepted the settlement. CNA therefore had notice of Western National’s intent to recoup when the settlement offer was accepted in the Jacobs action.

In the Klang action, Western National argues that CNA had constructive notice of Western National’s intent to recoup because Western National gave notice to Seren, its insured. Seren did not, in fact, communicate notice of Western National’s intent to CNA, but Western National argues that CNA had constructive notice: because CNA “employ[ed] Seren’s counsel to communicate demands for contribution from Seren’s insurers, including Western National[,] ... it seems appropriate that Seren’s counsel should also be considered CNA’s agent for purposes of receiving Western National’s response. ...” Western National provides neither evidence of nor legal support for this alleged agency relationship between an insured and its primary insurer. “In the absence of any persuasive evidence of [the elements of agency], there is no agency as a matter of law.” Jurek v. Thompson, 308 Minn. 191, 200-01, 241 N.W.2d 788, 793 (Minn.1976). Moreover, Seren’s counsel were acting in Seren’s interest in seeking contributions for the settlement from Seren’s insurers, Western National and CNA. Telling CNA that Western National planned to recoup would have been counter to Seren’s interest because it could have deterred CNA’s contribution.

DECISION

CNA had notice of Western National’s intent to recoup its contribution when the Jacobs matter was settled; CNA did not have notice of Western National’s intent to recoup its contribution when the Klang matter was settled. Therefore, as the district court concluded, Western National is entitled to recoup its contribution to the Jacobs settlement but not its contribution to the Klang settlement.

Affirmed.

      . Respondent filed but subsequently withdrew a notice of review of the summary judgment granted to appellants with respect to the other claim.

      . Neither Seren nor CCI filed a brief in this appeal.


author: WILLIS, Judge.

text:
    In re the ESTATE OF Leonard Earl JOTHAM, Deceased.
    No. A05-438.
    Court of Appeals of Minnesota.
    Oct. 11, 2005.

      Raymond A. Charpentier, Charpentier & Lange, Brainerd, MN, for appellant Diann Nelson.
    James W. Nelson, Fitzpatrick & Nelson, Brainerd, MN, for respondent Sandra Barnett.
    Thomas Pearson, Erickson Pearson & Aanes, Brainerd, MN, for respondent Selma Marie Jotham.
    Considered and decided by RANDALL, Presiding Judge; KLAPHAKE, Judge; and WILLIS, Judge.
   OPINION

WILLIS, Judge.

Appellant seeks review of a district court order determining that respondent is, as a matter of law, the child of decedent for purposes of intestate succession. Appellant argues that the district court erred by relying on a presumption of paternity in the Minnesota Parentage Act, Minn.Stat. § 257.55 (2004), and by determining that it could not consider evidence offered by appellant to establish that respondent is not decedent’s biological daughter. We conclude that the district court’s reliance on a presumption of paternity in the parentage act was proper, but because we also conclude that the district court erred by determining that it could not consider evidence that respondent is not decedent’s biological daughter, we reverse and remand.

FACTS

Decedent Leonard Jotham died intestate on June 8, 2004. His widow filed a petition for adjudication of intestacy, in which she identified herself as the surviving spouse and appellant Diann Nelson and respondent Sandra Barnett as decedent’s daughters. Nelson objected to this petition, claiming that Barnett is not decedent’s biological daughter.

The parties stipulated to the following facts: (1) decedent and Margaret L. Jot-ham were married on July 18, 1942; (2) Nelson was born to Margaret Jotham during this marriage; (3) decedent and Margaret Jotham were divorced by a judgment filed on June 11, 1947; (4) Barnett was born to Margaret Jotham on March 16, 1948; and (5) decedent is identified as Barnett’s father on her birth certificate, but there has been no judicial determination or written acknowledgment of decedent’s paternity of Barnett.

After a hearing, the district court filed an order in which it concluded that, based on a presumption of paternity in the parentage act, as a matter of law Barnett is decedent’s biological daughter and is entitled to inherit from decedent according to the laws of intestacy. The district court also concluded that it could not consider evidence offered by Nelson to rebut the presumption that decedent was Barnett’s biological father. Nelson appeals from this order.

ISSUES

I. Did the district court err by applying a presumption of paternity in the parentage act to determine the existence of a father-child relationship between decedent and Barnett for purposes of intestate succession?

II. Did the district court err by concluding that it could not consider evidence offered to rebut the presumption that decedent was Barnett’s biological father?

ANALYSIS

Nelson argues that the district court erred by relying on a presumption of paternity in the Minnesota Parentage Act, Minn.Stat. § 257.55 (2004), and by determining that it could not consider evidence that Barnett is not decedent’s biological daughter. Statutory construction is a question of law, reviewed de novo by this court. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

The Minnesota Probate Code gives a district court “jurisdiction over all subject matter relating to estates of decedents, including construction of wills and determination of heirs and successors of decedents.” Minn.Stat. § 524.1-302(a) (2004). The probate code anticipates that in some cases, “for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person.” Minn.Stat. § 524.2-114 (2004). In cases not concerning adoption, the probate code provides that “a person is the child of the person’s parents regardless of the marital status of the parents and the parent and child relationship may be established under the Parentage Act, sections 257.51 and 257.74.” Minn.Stat. § 524.2-114.

The parentage act sets forth nine presumptions of paternity. Minn.Stat. § 257.55, subd. 1 (2004). One of these is that a man is presumed to be the biological father of a child if he and the child’s biological mother have been married to each other and the child is born within 280 days after the marriage is terminated by divorce. Id., subd. 1(a). The district court concluded that this presumption applied to the relationship between decedent and Barnett because Barnett was born 279 days after the filing of the judgment granting a divorce to decedent and Barnett’s mother. The district court also concluded that it could not consider evidence that Nelson offered to rebut the presumption because the limitations period for declaring the nonexistence of a father-child relationship had expired.

Nelson first argues that the presumptions of paternity in the parentage act cannot be used to determine Barnett’s parentage because the act took effect “decades after [Barnett’s] birth” and the limitations period to determine Barnett’s parentage “had expired long before the enactment date.” Nelson further argues that, if the presumption applies, the district court erred by not considering evidence that Nelson offered to rebut the presumption of decedent’s paternity of Barnett.

I.

We first address whether the district court erred by applying a presumption of paternity in the parentage act to a person born before the effective date of the act. The probate code clearly allows a district court to apply the parentage act when determining a father-child relationship for purposes of intestate succession. Minn.Stat. § 524.2-114(2). This section of the probate code took effect on January 1, 1996, and “applies to the rights of successors of decedents dying on or after its effective date.” 1994 Minn. Laws ch. 472, § 65(a), (b)(1). When the parentage act took effect, all then-existing statutes for establishing paternity were repealed. 1980 Minn. Laws ch. 589, §§ 1-24, 38, at 1070-1079,1085.

The district court concluded that “[b]y repealing the existing law at the same time the new law went into effect, there is a clear showing of legislative intent that the Parentage Act be applied to children born before as well as after its enactment.” The Minnesota Supreme Court has noted that “[b]efore it can be said that a later act is intended as a substitute for the earlier, ‘there must be unmistakable intent manifested on the part of the legislature to make the new act a substitute for the old and to contain all the law on the subject.’ ” State v. Target Stores, Inc., 279 Minn. 447, 474, 156 N.W.2d 908, 925 (1968) (quoting State v. Sobelman, 199 Minn. 232, 236, 271 N.W. 484, 486 (1937)); see also In re Kayachith, 683 N.W.2d 325, 327-28 (Minn.App.2004) (using the legislature’s simultaneous repeal of one statute and enactment of another on the same topic to interpret the new statute), review denied (Minn. Sept. 29, 2004).

Nothing in the parentage act limits its application to persons born after its effective date. In fact, it is clear that when it adopted the parentage act, the legislature contemplated that it would apply to persons born before the act’s effective date. See Minn.Stat. § 257.58 (1980) (limiting actions to determine the existence of a father-and-child relationship in certain circumstances to either three years after the birth of the child or three years after the effective date of the act, whichever is later). Considering these facts in light of the legislature’s simultaneous repeal of all other then-existing laws for establishing paternity, we agree with the district court, and we conclude that when the legislature adopted the parentage act, it manifested an intent to replace the old act with a new act that contains all of the law on the subject and that the parentage act’s presumptions of paternity may be applied to a person born before the effective date of the act.

II.

Next, we consider whether the district court erred by applying the parentage act’s three-year limitations period for actions to declare the nonexistence of a father-child relationship and thereby concluding that it could not consider evidence offered by Nelson to rebut the presumption of decedent’s paternity of Barnett.

The presumptions of paternity codified in Minn.Stat. § 257.55, subd. 1, “are legislative provisions to aid in the recognition of the father and child relationship.” Wilson v. Speer, 499 N.W.2d 850, 852-53 (Minn.App.1993), review granted (Minn. July 19, 1993), appeal dismissed (Minn. Aug. 16, 1993). “The presumptions contained in the Parentage Act are not conclusive of paternity, but rather create a functional set of rules that point to a likely father.” State v. Thomas, 584 N.W.2d 421, 424 (Minn.App.1998) (quotation omitted), review denied (Minn. Nov. 17,1998).

The parentage act limits the time in which a person may bring an action to declare the nonexistence of a father-child relationship presumed under section 257.55, subd. 1(a), to no later than three years after the birth of the child. Minn. Stat. § 257.57, subd. 1(b) (2004). Barnett argues that the district court correctly concluded that this limitation bars any evidence that would rebut the presumption of paternity here.

But this probate proceeding was not an action initiated for the purpose of proving the nonexistence of a father-child relationship between decedent and Barnett. An action initiated for the purpose of declaring the nonexistence of a father-child relationship under section 257.57, subdivision 1(b), is distinguishable from a denial of paternity asserted to rebut the presumption of paternity created by section 257.55, subdivision 1(a). In re State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d 346, 349 (Minn.1991). Therefore, “the right to deny paternity defensively, [when] asserted to rebut a presumption of paternity ... is not subject to time limitations.” Id. at 350.

Further, this court has noted that the application of the parentage act’s limitations period to persons attempting to prove parentage for purposes of intestate succession would frustrate the purpose of the probate code. See Estate of Martignacco, 689 N.W.2d 262, 267 (Minn.App.2004) (noting that applying the parentage act’s limitations period to that case “would make it virtually impossible for ‘undiscovered,’ nonmarital children to establish paternity since the Parentage Act requires this to be done no later than one year after the child reaches the age of majority” and that the legislature sought to remove distinctions between marital and nonmarital children in inheritance claims), review denied (Minn. Jan. 26, 2005).

In In re Estate of Palmer, the Minnesota Supreme Court noted that the parentage act and the probate code serve distinct purposes:

[T]he Parentage Act and the Probate Code are independent statutes designed to address different primary rights. The purpose of the Parentage Act is to establish “the legal relationship ... between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations.” Child support is the major concern under the Parentage Act. The purpose of the Probate Code, on the other hand, is to determine the devolution of a decedent’s real and personal property. The different purposes the two statutes serve, help to explain why the Legislature contemplated different periods of limitations for filing claims under those statutes.

658 N.W.2d 197, 200 (Minn.2003) (quoting Wingate v. Estate of Ryan, 149 N.J. 227, 693 A.2d 457, 463 (1997), and applying to Minnesota law the New Jersey court’s descriptions of the separate rationales for its probate code and its parentage act) (alteration in original). In Wingate, for purposes of intestate succession, a 31-year old claimant sought to prove that he was the decedent’s son under New Jersey’s parentage act, which had a 23-year limitations period. 693 A.2d at 458. Applying the reasoning quoted above, the New Jersey Supreme Court held that the New Jersey parentage act’s limitations period did not bar the probate claim. Id. at 465.

Here, Nelson objected to the petition for formal adjudication of intestacy because she believed that Barnett was erroneously included in the petition as a daughter of decedent. Nelson did not bring an action under section 257.57, subdivision 1(b), to declare the nonexistence of a father-child relationship between decedent and Barnett. Rather, the district court exercised its authority under the probate code to use the parentage act to determine that decedent is presumed to be the father of Barnett, and Nelson sought to offer evidence defensively rebutting that presumption.

The parentage act provides that a presumption in section 257.55 “may be rebutted in an appropriate action only by clear and convincing evidence.” Minn. Stat. § 257.55, subd. 2 (2004). Subdivision 2 does not limit who may rebut a presumption of paternity nor does it limit an “appropriate action” to one brought under the parentage act. See id. Because the probate code’s purpose is to help courts determine the devolution of a decedent’s property and because the district court has jurisdiction over all subject matter relating to the determination of heirs, we conclude that, regardless of any limitations period, a district court may consider evidence rebutting a presumption of paternity in determining intestate succession. Therefore, the district court erred as a matter of law when it concluded that it could not consider evidence that Nelson offered to rebut the presumption of decedent’s paternity of Barnett.

DECISION

Because a district court, for purposes of intestate succession, may rely on the presumptions of paternity in the parentage act to determine the existence of a father-child relationship and these presumptions may be applied to children born before the effective date of the parentage act, the district court did not err by applying a presumption of paternity from the parentage act here. But the parentage act’s limitations period for actions to declare the nonexistence of the father-child relationship does not apply to determinations of paternity for purposes of intestate succession, and the district court erred by concluding that it could not consider evidence that Nelson offered to rebut the presumption of decedent’s paternity of Barnett.

Reversed and remanded.