Constantine Xykis, et al., Respondents, vs. Arlington Building Corporation, d/b/a Arlington Homes, et al., Defendants, Minnesota Department of Commerce, Contractor's Recovery Fund, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-928

 

 

Constantine Xykis, et al.,

Respondents,

 

vs.

 

Arlington Building Corporation, d/b/a Arlington Homes, et al.,

Defendants,

 

Minnesota Department of Commerce, Contractor's Recovery Fund,

Appellant.

 

 

Filed December 28, 2004

Reversed

Robert H. Schumacher, Judge

 

Dakota County District Court

File No. C00210061

 

 

Daniel W. Voss, Neal L. Freese, Boyle & Voss, P.A., 145 Paramount Plaza III, 7831 Glenroy Road, Bloomington, MN 55439 (for respondents)

 

Mike Hatch, Attorney General, Francis Green III, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Minnesota Department of Commerce, Contractors Recovery Fund, challenges the district court's order requiring the Fund to pay out $25,000 to respondents Constantine and Katherine Xykis.  The Department argues the Fund was statutorily barred from making the payment to the Xykises.  We reverse.

FACTS

Between November 1991 and April 1992, defendant Arlington Building Corporation, d/b/a Arlington Homes, performed construction work on the Xykises' property.   In 1993, the legislature created the Contractors Recovery Fund.  The purpose of the Fund is to compensate aggrieved homeowners who obtain a final judgment against a residential contractor for insufficient, fraudulent, or negligent performance where the contractor does not possess sufficient assets to reimburse the homeowners for their loss.  Minn. Stat. § 326.975, subd. 1(a)(2) (2002).  The statute creating the Fund provided that "nothing may obligate the fund for more than $50,000 per claimant, nor more than $50,000 per licensee."  Id., subd. 1(3) (Supp. 1993). 

            Arlington received a final discharge in bankruptcy in February 1997 and was dissolved by the Minnesota Secretary of State in December 1999.  In March 2001, the Xykises brought suit against Arlington alleging fraud, negligence, and breach of contract arising from the work Arlington had performed and requesting damages in excess of $50,000.  Arlington, which no longer existed as a corporate entity, did not answer the complaint. 

In 2001, the legislature amended the Contractor's Recovery Fund statute to increase to $75,000 the total amount the Fund would pay out to satisfy judgments entered against a single licensed contractor.  Minn. Stat. § 326.975, subd. 1(3) (Supp. 2001).  The session law amending the statute provided:  "[The increase] is effective January 1, 2001, and applies to claims arising from incidents or conduct occurring on or after that date."  2001 Minn. Laws ch. 208, § 29.  This session law language was not incorporated into the statute as codified.   

In September 2003, the district court hearing the Xykises' suit against Arlington entered judgment against Arlington for $50,000.  After Arlington failed to satisfy the judgment, the Xykises applied for an order directing payment out of the Contractor's Recovery Fund.  The Department of Commerce, which administers the fund, denied the payment on the grounds that the $50,000 Fund limit on claims against Arlington arising before January 1, 2001 the effective date of the amendment increasing the per-licensee fund limit to $75,000   had been exhausted by previous payments to other homeowner-claimants. 

The Xykises challenged the denial in district court, arguing that because Minn. Stat. § 326.975, subd. 1(3), unambiguously states that the Fund is liable for up to $75,000 per licensee, the district court was barred from interpreting the statute in light of the session law language never incorporated into the statute as codified limiting the increase to claims arising from conduct occurring on or after January 1, 2001.  The district court agreed and ordered the Department to disburse the $25,000 remaining in Arlington's Fund resources to the Xykises.

D E C I S I O N

The Department argues the district court erred as a matter of law by interpreting Minn. Stat. § 326.975, subd. 1(a)(3) (Supp. 2001), without considering the effect of uncodified session law language limiting the relief available under the amendment to claims arising out of conduct occurring on or after January 1, 2001.  The Xykises argue because the plain language of the statute as codified is unambiguous, the district court was prohibited from engaging in statutory construction by considering the effect of the session laws or any other source extrinsic to the statute proper.

Statutory interpretation is a question of law subject to de novo review.  Metro. Sports Facilities Comm'n v. County of Hennepin, 561 N.W.2d 513, 515 (Minn. 1997).  The object of statutory interpretation is to determine and give effect to the legislature's intent.  Minn. Stat. § 645.16 (2002).  Statutes should be read in a way that gives effect to all their provisions.  Id.  "When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit."  Id.  "Where the intention of the legislature is clearly manifested by plain unambiguous language . . . no construction is necessary or permitted.  Thus, prior to consideration of legislative history, a determination that [the statute under consideration] is ambiguous is necessary."  Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995) (citation omitted).

"[W]hen the meaning of a statute is doubtful, courts should give great weight to a construction placed upon it by the Department charged with its administration."  Mammenga v. State Dept. of Human Servs., 442 N.W.2d 786, 792 (Minn. 1989) (quotation omitted).

The Department argues that the district court erred by concluding 2001 Minn. Laws ch. 208, § 29 amending Minn. Stat. § 326.975, subd. 1(a)(3) did not have force of law equal to that of the amendment it enacted and could therefore be disregarded in interpreting the amendment to subdivision 1.  We agree.  Minn. Stat. § 3C.13 (2002) provides:  "Any volume of Minnesota Statutes, supplement to Minnesota Statutes, and Laws of Minnesota . . . is prima facie evidence of the statutes contained in it in all courts and proceedings."  In Occhino v. Grover, we held that "it is the session laws and the revisor's version of Minnesota Statutes that contain the official text of a statute."  640 N.W.2d 357, 362 (Minn. App. 2002), review denied (Minn. May 28, 2002).  We therefore conclude that the district court erred in treating chapter 29 of the session laws as a  discrete, extrinsic source that the court was prohibited from consulting barring a determination that the statute as codified was ambiguous.

The Xykises argue both Minn. Stat. § 3C.13 and Occhino are inapposite here because neither addresses whether the session law or the statute prevails in the event of a conflict, and "[w]hen the two versions differ, it is of no help to say that both [the session law and the statute] contain the official text of a statute."  But the Xykises do not articulate how chapter 29 (the session law) and section 326.975 (the Fund statute) "differ" or conflict with each other.  The session law provides the effective date for the amendment and the date after which conduct giving rise to claims against the Fund must occur; the statute provides the monetary limit of the claims.  Although the provisions provide different information concerning similar claims, the information is complementary, not conflicting.  In order to give effect to all the provisions of the statute, as courts must, respondent's request for relief should properly be considered in light of both the statutory and the session-law language. 

The Xykises argue the session law cannot have the force of law here because even if that language was erroneously omitted from the statute by the revisor, the statute as codified is unambiguous and therefore not susceptible to judicial construction.  In support, the Xykises cite to State v. Village of Pierz, 241 Minn. 37, 62 N.W.2d 498 (1954) for the proposition that where a revisor's erroneous omission thwarts legislative intent, the resulting codified statute, if unambiguous, is not subject to judicial construction. 

The Xykises' reliance on Pierz is misplaced.  There, the revisor codifying the 1945 revised statute regulating public examiners inadvertently omitted the provision granting the examiners authority to conduct such examinations.  Id. at 40, 62 N.W.2d at 500.  The supreme court observed that "[i]t is undoubtedly true that when the legislature adopted the 1945 revision it became the law of this state."  Id.  But the court held the omitted provision must be given effect, writing "where an ambiguity [has] arisen by virtue of a [revisor's] deletion, omission, or change of language, it is . . . our function to ascertain the legislative intent, if we can, from the language used in the new revision."  Id.  The court added that "[i]t was not the intention of the legislature to confer upon the revisor authority to make changes in existing laws."  Id. at 41, 62 N.W.2d at 501. 

The Xykises contend that Pierz bars consideration of enacting language erroneously omitted by the revisor because the resulting statute is unambiguous; but Pierz held that an omitted provision will be given effect where doing so will further legislative intent.  Id. at 40, 62 N.W.2d at 500.  The Xykises do not argue here that the legislature did not intend to limit the amendment's effect to claims arising from conduct occurring after January 1, 2001.  The Xykises argue instead that because the statute as codified is unambiguous, the district court was barred from looking to the session laws to give effect to the language therein.  But "it is the duty of the judiciary to give effect to the legislative intent and not to the letter of the law as codified because the revisor lacks the authority to make changes in the law."  Kuiawinski v. Palm Garden Bar, 392 N.W.2d 899, 903 (Minn. App. 1986), review denied, (Minn. Oct. 29, 1986)). 

The Xykises also argue that the district court was barred from inserting language into the statute, citing to the holding in State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11-12 (1959) that "[w]here failure of expression rather than ambiguity of expression concerning the elements of the statutory standard is the vice of the enactment, courts are not free to substitute amendment for construction and thereby supply the omissions of the legislature."  But here, there was no failure of expression or legislative omission:  the district court interpreted the statute so as to give effect to its statutory and session-law provisions, which together comprise "the official text of [the] statute."  Occhino, 640 N.W.2d at 362.  Moseng is therefore inapposite. 

The plain language of the statute demonstrates the legislature intended to allocate an additional $25,000 per licensed contractor to the Fund for claims arising from conduct occurring after January 1, 2001.  Under Pierz, the revisor's omission from the statute as codified of the date after which the conduct giving rise to the claims must occur does not justify nullifying the language of the session law solely on the grounds that the statute as codified is unambiguous.  The Xykises' argument that the session-law language must be disregarded because the statute as codified is unambiguous erroneously favors a technical application of a canon of statutory construction over the principle, expressed in Pierz and Kuiawinski, that where "the revisor has erred in codifying legislative enactments, it is the duty of the judiciary to give effect to the legislative intent and not to the letter of the law as codified."  Kuiawinski, 392 N.W.2d at 903. 

The district court erred by failing to read the Fund statute to include the session-law language.  When the statute is read to give effect to both the codified and session law language, the Xykises' claim against Arlington must fail, because it arose out of incidents or conduct occurring long before the January 1, 2001 effective date of the 2001 amendment. 

            Reversed.