Vern Lyrek, Appellant, vs. Wick Building Systems, Inc., Respondent.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C5-98-1602

In re Application for Relocation Benefits of:
Wax 'N Works,
Relator,

vs.

The City of St. Paul,
Respondent.

 Filed April 6, 1999
 Affirmed
 Schumacher, Judge

City of St. Paul

Judith A. Mlinar, Kirk A. Schnitker, 2300 Central Avenue Northeast, Minneapolis, MN 55418 (for relator)

Clayton Robinson Jr., St. Paul City Attorney, Lisa L. Veith, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.

 U N P U B L I S H E D   O P I N I O N

 SCHUMACHER, Judge

In this relocation reimbursement proceeding, relator Wax `N Works alleges that it was deprived of a fair hearing, that the proceeding did not comply with applicable law, and that respondent The City of St. Paul arbitrarily denied reimbursement of certain relocation costs. We affirm.

FACTS

After relocating its business because of St. Paul's redevelopment, Wax 'N Works sought relocation reimbursement. St. Paul granted most of Wax `N Works's claim. Wax `N Works sought an administrative appeal of the portion of its claim St. Paul denied, but objected to a review conducted by various persons proposed by St. Paul. Eventually, the parties agreed a private attorney would act as hearing officer. He recommended awarding Wax `N Works an additional $750, denying the rest of Wax `N Works's claim, and equally dividing the costs of the hearing. St. Paul adopted these recommendations. Wax `N Works appeals by certiorari.

D E C I S I O N

If federal funds are not available to assist in relocation after acquisition of property by an "acquiring authority," the "acquiring authority" shall provide the benefits the federal government would have provided if federal funds had been available and the "acquiring authority" shall do so pursuant to federal law. Minn. Stat. § 117.52, subd. 1 (1998). Here, St. Paul is an "acquiring authority," and federal funds are not available.

1. Wax `N Works argues St. Paul deprived it of a fair hearing by confusing the hearing officer about his duties. Because Wax `N Works makes no specific allegation of prejudice arising from the hearing officer's alleged confusion, however, reversal is not required. See Zahavy v. University of Minn., 544 N.W.2d 32, 38 (Minn. App. 1996) (applying harmless error standard in certiorari appeal); see generally, Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating, in civil appeal, error without prejudice does not merit reversal).

To the extent Wax `N Works challenges the hearing officer's appointment and apportionments of the costs of the hearing and the court reporter, Wax `N Works waived those issues by agreeing to the hearing officer and that the hearing officer would divide those costs. See Hauenstein & Bermeister, Inc. v. Met-Fab Indus., Inc., 320 N.W.2d 886, 892 (Minn. 1982) (holding waiver occurs via "an intentional relinquishment of a known right, and it must 'clearly be made to appear from the facts disclosed'") (emphasis omitted; quoting Kennedy v. Hasse, 262 Minn. 155, 159, 114 N.W.2d 82, 85 (1962)).[1] Also, on this record, we cannot say the cost apportionment is unsupported.

2. "The Agency" shall review any appeal of an initial relocation reimbursement award under 49 C.F.R. §24.10 (a) (1997). Here, "the agency" is St. Paul, St. Paul's initial decision did not grant Wax `N Works's full claim, and review of that decision was performed by the hearing officer. Another C.F.R. provision states the "agency official conducting the review of the appeal shall be either the head of the Agency or his or her authorized designee." 49 C.F.R. § 24.10(h) (1997). Citing this provision, Wax `N Works alleges St. Paul did not independently review the hearing officer's ruling.

The C.F.R. provision addressing the appeal to the hearing officer requires a written decision and, if full relief is not granted, notification to the losing party "of his or her right to seek judicial review." 49 C.F.R. 24.10(g) (1997). That a party appealing an initial decision is entitled to judicial review of the decision made on appeal means an additional review within the agency cannot occur. Therefore, 49 C.F.R. 24.10(h) must be read to refer to the person who conducts the appeal, rather than a person who reviews the decision made in the appeal. The analogous provision in the parties' agreement requires the hearing officer to issue a written decision "in compliance with applicable law" and "advise [Wax `N Works] of its right to seek judicial review." That procedure was followed here and is consistent with the procedure in similar cases. E.g., Naegele v. Minneapolis Community Dev. Agency, 551 N.W.2d 235, 236 (Minn. App. 1996); In re The Application of Relocation Benefits of Wilkins Pontiac, Inc., 530 N.W.2d 571, 573 (Minn. App. 1995), review denied (Minn. June 23, 1995).

3. Wax `N Works challenges the denial of aspects of its reimbursement claim. When a party challenges a relocation reimbursement award, we review "whether the agency kept within its jurisdiction" and "whether the decision of the agency was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of the law or without evidence to support it." Wilkins, 530 N.W.2d at 574.

Wax `N Works claims the evidence does not support St. Paul's refusal to pay the portion of Wax `N Works's claim that was bid-based. The relevant C.F.R. provision, however, states "the Agency may make a [bid-based] payment for the person's moving expenses[.]" 49 C.F.R. §24.303(c) (1997) (emphasis added). This regulation does not require that payment be bid-based. Cf. Minn. Stat. § 645.44, subd. 15 (1998) (defining "may" as "permissive"). Here, because the hearing officer rejected the testimony of Wax `N Works's cost experts on credibility grounds, that testimony cannot be used to increase the award. See In re Friedenson, 574 N.W.2d 463, 466-67 (Minn. App. 1998) (stating, in administrative appeal, credibility assessments are for the fact-finder to make), review denied (Minn. Apr. 30, 1998).[2] Also, St. Paul's expert testified that, after consulting with St. Paul's planning department, the expert believed the wage rates used for reimbursement were reasonable. The hearing officer agreed. Thus, the record contains evidence supporting the reimbursement rate.

Wax `N Works also alleges the denial of its requested reimbursement is oppressive and unreasonable in light of St. Paul's failure to provide the assistance it should have provided during the relocation process. Even if Wax `N Works's move was expensive due to a lack of assistance from St. Paul, this record does not allow us to increase Wax `N Works's award because the hearing officer found that Wax `N Works failed to submit credible evidence regarding its expenses. Cf. Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. 1987) (party "cannot complain" when their own failure to produce documentation leads, at least in part, to denial of their request to modify maintenance).

Wax `N Works alleges St. Paul's denial of Wax `N Works's bid-based claim is arbitrary because St. Paul previously paid such claims to others who relocated. It is unclear whether, in the other cases, the hearing officers were provided with credible evidence of the requested reimbursement amounts. Also, under the C.F.R., a displaced party is "entitled to payment of his or her actual moving and related expenses as the Agency determines to be reasonable and necessary[.]" 49 C.F.R. § 24.301. Therefore, amounts recovered for other moves are not dispositive of the proper recovery amount here.

Affirmed.

[1] St. Paul argues the appeal should be dismissed because Wax `N Works waived its challenge to the hearing officer. That waiver does not mean the hearing officer's decision is correct, however. Therefore, we deny any motion to dismiss the appeal, and we address the challenged portions of the decision.

[2] A similar analysis addresses Wax `N Works's challenge to rate at which it was reimbursed for search costs.