Free Flow Information MS595.021

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DECISIONS OF THE COURT OF APPEALS

FILED MONDAY, DECEMBER 24, 2007

A06-2263 In the Matter of the Claim for Benefits by Scott Sletten.
Minnesota Public Safety Officers Benefit Eligibility Panel.
A firefighter who is forced to retire after sustaining injuries during a cave rescue is entitled to continuing health care benefits under Minn. Stat. § 299A.465 (2006). Cave rescue is an occupational duty or professional responsiblity. The firefighter was at risk for the type of injury he sustained.
Reversed. Judge R. A. (Jim) Randall.

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A06-1940 Margaret A. Brickner, et al., Respondents, vs. One Land
A06-1957 Development Company,Defendant (A06-1940), Appellant
(A06-1957); John Andrew Duckwall, Appellant (A06-1940),
Defendant (A06-1957).
Anoka County District Court, Hon. James A. Morrow.
1. When one party to a real estate contract initiates cancellation proceedings under Minn. Stat. § 559.21 (2002), in accordance with contractual terms, the other party must bring an action opposing cancellation or seek injunctive relief before expiration of the cancellation period and may not avoid cancellation by asserting a prior breach after the cancellation period expires.
2. A party defending against an allegation of slander of title by alleging reliance on an attorney's advice bears the burden to produce specific facts showing reasonable reliance on the attorney's advice.
3. In an action for slander of title where the aggrieved party pleads attorney fees as special damages, an award of attorney fees is measured by the extent that the aggrieved party is obligated to pay them.
Affirmed as modified. Judge Roger M. Klaphake.

A07-678 In Re: Death Investigation of Jeffrey Alan Skjervold.
Ross E. Arneson, in his capacity as Blue Earth County
Attorney, petitioner, Respondent, vs. Daniel Edward
Nienaber, et al., Appellants.
Blue Earth County District Court, Hon. Norbert P. Smith.
1. The Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-.025 (2006), provides to the news media a substantial privilege not to reveal sources of information or disclose unpublished information except as required under the statute.
2. Under Minn. Stat. § 595.024, subd. 2 (2006), an applicant seeking specific information from the news media relevant to a gross misdemeanor or felony must establish by clear and convincing evidence all three criteria of the subdivision. The third criterion requires that the applicant establish that there is a compelling and overriding interest requiring disclosure of the information to prevent an injustice.
Reversed. Judge Christopher J. Dietzen.

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-678

In Re: Death Investigation of Jeffrey Alan Skjervold

Ross E. Arneson, in his capacity
as Blue Earth County Attorney, petitioner,
Respondent,

vs.

Daniel Edward Nienaber, et al.,
Appellants.

Filed December 24, 2007

Reversed

Dietzen, Judge

Blue Earth County District Court

File No. 07-CV-07-168

Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellants Daniel Edward Nienaber, et al.)

Ross E. Arneson, Blue Earth County Attorney, Patrick R. McDermott, Susan B. DeVos, Assistant County Attorneys, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent Ross E. Arneson)

John P. Borger, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; and

Lucy A. Dalglish, 1101 Wilson Boulevard, Suite 1100, Arlington, VA 22209 (for amici curiae Minnesota Broadcasters, Minnesota Joint Media Committee, Minnesota Newspaper Association, Reporters Committee for Freedom of the Press, Star Tribune Company)

Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

S Y L L A B U S

1. The Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-.025 (2006), provides to the news media a substantial privilege not to reveal sources of information or disclose unpublished information except as required under the statute.

2. Under Minn. Stat. § 595.024, subd. 2 (2006), an applicant seeking specific information from the news media relevant to a gross misdemeanor or felony must establish by clear and convincing evidence all three criteria of the subdivision. The third criterion requires that the applicant establish that there is a compelling and overriding interest requiring disclosure of the information to prevent an injustice.

O P I N I O N

DIETZEN, Judge

Appellants challenge the district court order and resulting judgment compelling them to divulge information regarding the investigation into the death of Jeffrey Skjervold, arguing that the district court erred in concluding that respondent had met the criteria for disclosure under Minn. Stat. § 595.024, subd. 2 (2006). Because we conclude that the district court erred in applying the law, we reverse.

FACTS

In December 2006, Jeffrey Skjervold was involved in a domestic dispute at his home in rural Blue Earth County. Law enforcement was called, a stand-off ensued, and Skjervold barricaded himself in his home. During the stand-off, Skjervold shot and injured two law enforcement officers; and he was shot and injured by a law enforcement officer.

Law enforcement negotiators contacted Skjervold by telephone in an attempt to peacefully resolve the stand-off. The negotiators learned that Skjervold was upset because appellant Daniel Nienaber, a reporter from the Free Press, a Mankato daily newspaper, had contacted him during the stand-off. Bureau of Criminal Apprehension (BCA) agent Robert Nance talked with appellant Joe Spear, editor of the Free Press, and requested that the newspaper abandon its efforts to contact Skjervold. Eventually Spear agreed to abandon further efforts to contact Skjervold. Skjervold later took his own life.

The next day, the Free Press published an article by appellants Daniel Nienaber and Nicholas Hanson that contained information obtained by Nienaber during his conversation with Skjervold. Shortly thereafter, respondent Blue Earth County Attorney served appellants with an application under Minn. Stat. § 595.024 (2006), requesting that the district court issue subpoenas to compel disclosure of the contents of the conversation with Skjervold. The application included an affidavit from Micheal Anderson, a special agent with the BCA.

Following a hearing, the district court granted the application, over appellants’ objection, concluding that all of the criteria set forth in Minn. Stat. § 595.024, subd. 2, had been met. This appeal follows.

ISSUE

Did the district court err in concluding that respondent satisfied the criteria for disclosure under Minn. Stat. § 595.024, subd. 2 (2006)?

ANALYSIS

Appellants argue that the district court erred in its interpretation of the statute and in concluding that respondent had satisfied the criteria in Minn. Stat. § 595.024, subd. 2 (2006). Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). When interpreting a statute, our purpose is to determine the intent of the legislature. State v. Larivee, 656 N.W.2d 226, 229 (Minn. 2003). Further, “[e]very law shall be construed, if possible, to give effect to all its provisions.” Minn. Stat. § 645.16 (2006). We review a district court’s conclusions of law de novo. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003). Findings of fact of the district court are not set aside unless clearly erroneous, and we give due regard to the opportunity of the district court to judge the credibility of the witnesses. See Minn. R. Civ. P. 52.01.

The Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-.025 (2006), confers upon the press “the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information” except as set forth in applicable provisions of the statute, so as “to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.” Minn. Stat. § 595.022. Minn. Stat. § 595.024 sets forth the procedure for applying to the district court to seek disclosure of unpublished information from the news media. Subdivision 2 provides that the application shall be granted only if the court determines, after hearing from the parties, that the applicant has met three conditions, or criteria, by clear and convincing evidence. Minn. Stat. § 595.024, subd. 2. Those criteria are

(1) that there is probable cause to believe that the specific information sought (i) is clearly relevant to a gross misdemeanor or felony, or (ii) is clearly relevant to a misdemeanor so long as the information would not tend to identify the source of the information or the means through which it was obtained, (2) that the information cannot be obtained by alternative means or remedies less destructive of first amendment rights, and (3) that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.

Id.

Initially, appellants argue that the district court erred in not dismissing the application prior to the hearing on the ground that respondent failed to make a showing of probable cause under the statute. We disagree.

The statute does not require that the district court make a preliminary evaluation of the merits or consider dismissing the application sua sponte. Appellants concede that they did not bring a motion to dismiss. See Minn. R. Civ. P. 12.02. Thus, appellants’ argument lacks merit. We turn to an examination of each criterion under the statute.

First, the statute requires that the information sought is “clearly relevant to a gross misdemeanor or felony.” Minn. Stat. § 595.024, subd. 2(1)(i). Appellants argue that the information sought must be relevant to an actual prosecution of a crime, that Skjervold is deceased and cannot be prosecuted and, therefore, that the criterion is not satisfied. The district court rejected appellants’ argument, concluding that the information sought is clearly relevant to felony violations of law committed by Skjervold. We agree.

The statute does not explicitly require that the gross misdemeanor or felony be actually prosecuted. Had the legislature intended to require that the information sought be “clearly relevant” to a gross misdemeanor or felony that was “actually prosecuted,” it could have provided such a requirement in the statute. But it did not. Thus, we conclude that the statute only requires that the specific information sought be “clearly relevant” to a gross misdemeanor or felony. Id.

Second, the statute requires that the specific information sought cannot be obtained by alternative means or remedies less destructive of First Amendment rights. Minn. Stat. § 595.024, subd. 2(2). The district court found that the information is only available through the Free Press reporter because Skjervold is dead and there are no phone company records available. On this record, the district court’s finding is not clearly erroneous. Thus, the second criterion is also satisfied.

Third, the statute requires that there “is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.” Minn. Stat. § 595.024, subd. 2(3). Appellants suggest that the language of the statute is very broad and, therefore, susceptible of differing interpretations.

We agree that the language of the statute is broad, but we do not agree that it is ambiguous. We read the statute to require that the applicant establish “a compelling and overriding interest” requiring the disclosure of the information to prevent an “injustice.” Id. What constitutes an “injustice” will depend upon the facts and circumstances of the particular case.

Respondent argued and the district court agreed that disclosure is necessary to fully understand the events leading up to Skjervold’s suicide, and that doing so would prevent injustice. We disagree. The county attorney has the responsibility, among other things, to prosecute crimes and represent the county in civil matters. But the county attorney does not argue that it needs the information for any official purpose, such as investigating potential charges against appellants or a law enforcement officer. See Minn. Stat. § § 388.01-.25 (2006). Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified. Here, the county attorney has failed to do so and, therefore, the statute has not been satisfied.

Amici curiae argue that the act does not allow for any disclosure, including an in-camera review by the district court, unless the applicant has satisfied the requirements of Minn. Stat. § 595.024, subd. 2. Because it is not necessary for us to reach the issue of whether an in-camera review by the district court is permissible under the statute, we decline to reach that issue.

D E C I S I O N

Because respondent did not establish by clear and convincing evidence that there is a compelling and overriding interest requiring disclosure to prevent an injustice, the district court erred in concluding that respondent satisfied the requirements of Minn. Stat. § 595.024, subd. 2 (2006).

Reversed.

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

Aitkin Co. Attorney Bradley C. Rhodes Disbarred 1Nov07

AFFIDAVIT OF SHARON ANDERSON OWNER IN FEE SIMPLE OF 42741-321pl(GunLake) Aitkin, MNBio for Sharon Anderson.

Denied property rights Inquiry Harvey C. Ginsberg. A03-1336, Supremby this disbarred attorney . DisciplinaryBradley C. RhodesAitkinCoAttorney,http://sharonvaitkin.blogspot.com

George Shetka, Respondent, vs. Aitkin County, Minnesota, Appellant. C7-96-2147

I Complaint John T. Finley, Ramsey County DistriSharons Ans-Beale_22

DM-F9-1366_AffPredHaigJohn_97_2%20016MA12521599-0003.jpg (image)

STATE OF MINNESOTA

IN SUPREME COURT

A04-2252

Original Jurisdiction

Per Curiam

Took no part, Anderson, Russell A., C.J.

In re Petition for Disciplinary Action against

Bradley C. Rhodes, a Minnesota Attorney,

Registration No. 155913

Filed: November 1, 2007

Office of Appellate Courts

SYLLABUS

Disbarment is warranted for a lawyer who repeatedly neglected client matters, failed to communicate with clients, failed to return client files and property, failed to account for client fee payments, violated the conditions of a disciplinary probation, failed to cooperate with the disciplinary process, and had a history of professional discipline for similar misconduct.

Heard, considered, and decided by the court en banc.

OPINION

PER CURIAM.

This lawyer discipline action arose out of a petition served and filed by the Director of the Office of Lawyers Professional Responsibility alleging that Bradley C. Rhodes violated the Minnesota Rules of Professional Conduct by: failing to abide by client decisions concerning the objectives of the representation (Rule 1.2); failing to act diligently in client matters (Rule 1.3); failing to reasonably communicate with clients (Rule 1.4); acquiring an interest in client property without the client’s informed consent (Rule 1.8(a)); failing to hold client funds in trust (Rule 1.15(a)); failing to return client property and unearned fee payments (Rule 1.15(c)); failing to protect clients’ interests upon termination of the representation (Rule 1.16(d)); and failing to respond to the disciplinary authority (Rule 8.1(b)). The petition also alleges that Rhodes’s conduct violated Rule 25 of the Minnesota Rules on Lawyers Professional Responsibility and a previous order by this court placing Rhodes on probation subject to specific conditions. After Rhodes failed to respond to the petition, we deemed the allegations in the petition admitted and set the matter for oral argument to determine the appropriate discipline. The Director recommends that we disbar Rhodes. We conclude that the appropriate discipline under the facts and circumstances of this case is disbarment.

Rhodes was admitted to the practice of law in Minnesota in May 1984. We disciplined Rhodes for professional misconduct on three previous occasions. In February 1992, we admonished Rhodes for failing to refund unearned client fees. We admonished Rhodes again in July 1996 for failing to serve an answer to a summons and complaint until after a default hearing had occurred in the action. Finally, on May 18, 2005, we admonished Rhodes and placed him on supervised probation for 2 years for failing to file two briefs on behalf of a client and for failing to cooperate with the investigation into that misconduct. See In re Rhodes, 696 N.W.2d 328, 329 (Minn. 2005).

The current disciplinary petition is based on Rhodes’s failure to comply with the terms of the probation previously ordered by this court, new acts of professional misconduct in seven client matters, and Rhodes’s failure to cooperate with the investigation into this new professional misconduct.

A. Violation of Probation Conditions

As a condition of the probation we imposed in May 2005, Rhodes was required to, among other things, provide a list of lawyers who agreed to serve as his probation supervisor, submit specific information about all his active cases by the first of each month, provide a written plan of his office procedures to ensure compliance with the probation terms, and cooperate with the Director’s efforts to monitor Rhodes’s compliance with the probation. Rhodes failed to submit the list of potential supervisors and the office procedures within the specified timeframe, and repeatedly failed to submit a monthly list of his active cases in a timely fashion. Rhodes also failed, without explanation, to attend two meetings with the Director to discuss Rhodes’s compliance with the probation terms and failed to respond to several communications from his probation supervisor and the Director.

B. New Professional Misconduct in Client Matters

G.O. and L.O. paid Rhodes $1,000 in January 2004 to represent them in a mechanic’s lien action. After the initial meeting, Rhodes failed to respond to telephone calls or letters from G.O. and L.O. When the representation was eventually terminated, Rhodes failed to return the clients’ file, which included documents necessary to defend their claim. Rhodes has also failed to account for any legal services provided in this matter or to refund the $1,000 G.O. and L.O. paid him.

V.M. paid Rhodes a $500 retainer to represent her in a probate matter. Rhodes deposited this money in his personal account rather than in a trust account. Over the next several months, Rhodes failed to respond to numerous communications from V.M. Ultimately, Rhodes failed to either provide documentation of any legal work performed or refund the $500, and failed to return original documents provided by V.M.

W.R. retained Rhodes in January 2005 to defend him against a driving under the influence (DUI) criminal charge. W.R. and Rhodes agreed to seek modification of an earlier DUI conviction to avoid the permanent loss of W.R.’s driver’s license, but Rhodes failed to pursue that strategy within the required timeframe. Before a hearing in March 2006, Rhodes told W.R. that he had negotiated a plea agreement that would result in a conviction for careless driving rather than DUI, and that Rhodes would prepare the documents necessary to finalize the plea agreement. Rhodes apparently failed to prepare these documents, and did not return several telephone calls from W.R. inquiring into the matter. Finally, in September 2006, W.R. fired Rhodes and personally negotiated a new agreement with the prosecutor.

Rhodes began representing K.M. in a marriage dissolution proceeding in April 2005. Although the parties to the dissolution reached a settlement a few months later, Rhodes failed to prepare and distribute the settlement documents as he had agreed to do. Subsequently, a dispute between K.M. and his former spouse led the district court to order the proceedings be reopened. K.M. paid Rhodes $2,000 to appeal the order reopening the proceedings after Rhodes told him there was a strong chance of success. Over the next few months, Rhodes took no action on the appeal and failed to return several telephone calls from K.M. When K.M. confronted Rhodes over this lack of action, Rhodes stated that he had unilaterally decided not to appeal the matter. Rhodes has not provided an accounting of any legal work performed for the $2,000 payment.

In July 2005, Rhodes received $1,000—including $300 for a filing fee and $700 as an advance attorney’s fee payment—to represent M.K. in her marriage dissolution proceeding. Rhodes failed to place any of this money in a trust account. During the course of the representation, Rhodes failed to return several telephone messages from M.K. and her family, including calls concerning threats of physical violence made by M.K.’s former spouse against M.K. and her infant daughter. Rhodes has also failed to account for any legal work performed in this matter. Although Rhodes eventually agreed to refund the $1,000, the check he sent to M.K. was denied for insufficient funds and the money was never repaid.

In December 2005, P.T. and D.T. paid Rhodes $500 to represent them in a property dispute. Although Rhodes initially stated that the matter would be resolved by spring 2006, when P.T. spoke to him a few months later, Rhodes indicated that he had not yet begun working on the matter because “he had been too busy.” Over the next few months, Rhodes failed to respond to several communications from P.T. and D.T. In July 2006, Rhodes finally agreed to return the $500 payment and documents, including the original abstract of title and property survey, that he had been given. Neither the money nor the documents were ever returned.

N.F. retained Rhodes to defend her against criminal theft charges related to her handling of a trust. N.F.’s husband, D.F., subsequently retained Rhodes in an unrelated criminal matter. In January 2006, N.F. and D.F. paid Rhodes $500 toward their legal fees and gave him six firearms as collateral for the additional fees. N.F. also gave Rhodes a bag of documents and receipts relating to the trust expenditures as evidence that the payments were legitimate. Rhodes met with N.F. in August 2006 to discuss her case, but N.F. was unable to contact Rhodes during the subsequent months. In November 2006, Rhodes failed to appear at a scheduled court proceeding in N.F.’s criminal case. Rhodes also failed to return the evidence provided by N.F. and the firearms provided as collateral for legal fees.

C. Noncooperation with the Investigation

Between October 2005 and February 2007, the Director issued 11 notices of investigations regarding Rhodes’s failure to follow the conditions of his probation, the new allegations of professional misconduct outlined above, and a separate complaint forwarded to the Director by court personnel. During this period, Rhodes failed to respond to any of the complaints and to several related communications from the district ethics committee investigator and the Director.

I.

We do not impose disciplinary sanctions to punish a lawyer; rather, we do so “to protect the public, to guard the administration of justice and to deter future misconduct” by both the individual lawyer and by other members of the legal profession. In re Grzybek, 567 N.W.2d 259, 262 (Minn. 1997) (Grzybek II); see also In re Brooks, 696 N.W.2d 84, 87–88 (Minn. 2005). When determining the appropriate sanction, we consider four factors: “(1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession.” In re Nelson, 733 N.W.2d 458, 463 (Minn. 2007). Discipline is imposed based on the unique circumstances of each case, but previous cases are used to draw analogies and to promote consistency in sanctions over time. Id. at 463–64; In re Harp, 560 N.W.2d 696, 701 (Minn. 1997).

A. Neglect of Client Matters, Failure to Communicate with Clients,
and Failure to Return Client Property

We have repeatedly warned that “[a] continuing pattern of client neglect is serious misconduct often warranting indefinite suspension by itself,” Brooks, 696 N.W.2d at 88, and that more “extreme” cases involving client neglect and failure to communicate with clients may merit disbarment, In re De Rycke, 707 N.W.2d 370, 374 (Minn. 2006). See also Grzybek II, 567 N.W.2d at 263. We have also stated that the failure to return client property and files upon the termination of the attorney-client relationship warrants “serious treatment,” particularly when this misconduct “continued a pattern of conduct for which we already disciplined [the lawyer]” and when this misconduct “caused substantial inconvenience and unnecessary frustration to [the lawyer’s] clients.”
Grzybek II, 567 N.W.2d at 263.

The admitted allegations against Rhodes reveal a pattern of neglecting client matters and noncommunication with clients that involves seven new client matters and that closely resembles the misconduct for which we previously disciplined Rhodes. Moreover, the property Rhodes failed to return to his clients included original documents necessary to G.O. and L.O.’s mechanic’s lien defense, an original abstract of title and property survey, and evidence regarding N.F.’s defense against criminal charges. Rhodes’s retention of these documents likely caused a great deal of inconvenience to his clients. We conclude that this behavior constitutes serious professional misconduct and warrants severe discipline.

B. Financial Misconduct

The misappropriation of client funds is particularly serious misconduct and usually warrants disbarment “absent ‘clear and convincing evidence of substantial mitigating factors.’ ” De Rycke, 707 N.W.2d at 374 (quoting In re Swerine, 513 N.W.2d 463, 466 (Minn. 1994)). In this case, Rhodes accepted more than $5,000 from his clients without accounting for any legal services provided for these payments. The Director concedes in his brief that Rhodes has only been found to have failed to account for client funds, not to have misappropriated those funds. But the Director argues that Rhodes’s misconduct should be treated as severely as misappropriation because Rhodes’s failure to cooperate is what caused the inability to determine whether Rhodes misappropriated client funds or only failed to account for the funds and because, from a client’s perspective, the two violations are the same. We agree that Rhodes’s misconduct in this case, whether characterized as misappropriation or failure to account, is a serious violation of the rules of professional conduct and merits severe discipline.

C. Violation of the Terms of Disciplinary Probation

Failure to comply with the conditions of probation ordered by this court is an additional act of professional misconduct. See Grzybek II, 567 N.W.2d at 264–65 (failure to comply with court orders is a “serious violation”); Minn. R. Prof. Cond. 8.1(b); R. Lawyer Prof. Resp. 25. Although we occasionally determine that additional or modified probation is an appropriate sanction for probation violations, we generally conclude that “supervised probation is not appropriate where the attorney consistently fails to communicate with the Director,” In re Danielson, 620 N.W.2d 718, 721 (Minn. 2001); see also In re Anderson, 734 N.W.2d 238 (Minn. 2007). In this case, Rhodes’s repeated failure to respond to the Director’s inquiries and to participate in the disciplinary process would render the mere extension or modification of his prior probation inappropriate. We therefore conclude that Rhodes’s violation of the conditions of his prior probation is an independent act of misconduct warranting professional discipline.

D. Noncooperation with the Disciplinary Process

A lawyer’s failure to cooperate with an investigation into professional misconduct is serious misconduct that constitutes separate grounds for discipline. De Rycke, 707 N.W.2d at 375; see also Brooks, 696 N.W.2d at 88; Grzybek II, 567 N.W.2d 264. Noncooperation has been found to warrant indefinite suspension on its own, Brooks, 696 N.W.2d at 88, and to increase the severity of the disciplinary sanction when connected with other professional misconduct, De Rycke, 707 N.W.2d at 375; see In re Mayrand, 723 N.W.2d 261, 269 (Minn. 2006) (referring to noncooperation as a “serious aggravating factor[]”). In this case, Rhodes failed to respond to the 11 notices of investigation and repeated requests for information from the district ethics committee investigator and the Director. Rhodes has also failed to appear before this court in these proceedings. We conclude that Rhodes’s repeated failure to cooperate with the disciplinary process is a serious aggravating factor in determining the appropriate discipline.

E. Prior History of Professional Misconduct and Discipline

“After a disciplinary proceeding, [this court] expect[s] a renewed commitment to comprehensive ethical and professional behavior.” In re Weems, 540 N.W.2d 305, 309 (Minn. 1995). Accordingly, we consider a lawyer’s prior discipline and professional misconduct when determining the appropriate discipline for new misconduct. Brooks, 696 N.W.2d at 88. We generally impose “more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined.” Id. The new professional misconduct for which we are disciplining Rhodes includes the neglect of seven client matters (including repeated failure to submit promised documents), the failure to account for client fees, and the failure to cooperate with the disciplinary investigation. Moreover, most of this new misconduct occurred at the same time as, and in the months immediately following, the previous disciplinary proceedings against Rhodes for similar violations (failing to submit two briefs and noncooperation with the disciplinary investigation). Finally, the new misconduct is also similar to the misconduct for which we admonished Rhodes in 1992 (failing to return unearned fees) and 1996 (failing to timely serve an answer to a complaint). We conclude that Rhodes’s disciplinary history is a serious aggravating factor in determining the appropriate discipline in this case.

II.

In determining the appropriate discipline for professional misconduct, we consider not just the nature of each individual violation of the rules of professional conduct but also the cumulative weight of all of the professional misconduct in determining the appropriate sanction. We have repeatedly held that “ ‘[t]he cumulative weight and severity of multiple disciplinary rule violations may compel severe discipline even when a single act standing alone would not have warranted such discipline.’ ” Nelson, 733 N.W.2d at 464 (quoting In re Oberhauser, 679 N.W.2d 153, 160 (Minn. 2004)). In this case, Rhodes’s pattern of neglecting client matters, his repeated failure to communicate with clients, and his financial misconduct involving more than $5,000 in clients funds each warrant severe discipline individually. Rhodes’s misconduct also includes violations of the conditions we imposed on his prior disciplinary probation and two significant aggravating factors—his repeated failure to cooperate with the disciplinary process and his history of prior misconduct and discipline. Finally, the record does not contain any suggestion of mitigating factors.

In support of his recommendation that we disbar Rhodes, the Director cites Grzybek II as an analogous case. In July 1996, we suspended Grzybek for 6 months for failing to establish the basis for legal fees, to keep his clients informed, to respond to client communications, to promptly return client property, and to cooperate with the Director’s investigation. In re Grzybek, 552 N.W.2d 215, 215–17 (Minn. 1996) (Grzybek I). Approximately 6 months later, the Director filed a new petition alleging that Grzybek neglected client matters, failed to communicate with clients, misappropriated $750 of client funds, failed to cooperate with the disciplinary process, and disobeyed court orders. Grzybek II, 567 N.W.2d at 259–62. We held that Grzybek’s repeated neglect of client matters, failure to communicate with clients, and failure to cooperate with the disciplinary process—all of which occurred less than a year after he had been disciplined for similar misconduct—were “sufficient to merit disbarment.” Id. at 264–65. We also noted that Grzybek’s “misappropriation of $750 in client funds and his subsequent failure to make any effort to return the money[,] and his repeated failure to comply with court orders” are “separate grounds upon which he could be disbarred.” Id. at 265.

But in another analogous case, In re Brooks, we concluded that indefinite suspension was more appropriate than disbarment. 696 N.W.2d 84 (Minn. 2005). Brooks neglected client matters, failed to communicate with clients, failed to return client files and unearned fees, violated trust account rules, converted client money to her own use, and failed to cooperate with the disciplinary investigation. Id. at 86–87. Brooks had previously been disciplined five times for violating trust account rules, representing both parties to a dissolution proceeding, failing to adequately communicate with clients, and failing to provide a complete file to a client. Id. at 87. The record in Brooks suggested that the death of her father may have caused some of her unprofessional conduct, but we found it difficult to consider this mitigation because of Brooks’ failure to provide sufficient information. Id. at 87-88. Nonetheless, despite recognizing that a continuing pattern of client neglect, trust account violations, and noncooperation with disciplinary investigations each generally warrant lengthy or indefinite suspensions by themselves, we determined—based on the lack of “complete information of the surrounding circumstances,” the small amount of the misappropriation ($200), and Brooks’ abandonment of her legal practice—that an indefinite suspension for a minimum of 2 years was the appropriate sanction. Id. at 88–89.

We agree with the Director that the present case is more analogous to Grzybek II than to Brooks. Although the misconduct in Brooks, like in Grzybek II, was similar to the present case, the record in Brooks suggested a mitigating factor about which we lacked complete information. Because of Rhodes’s complete failure to participate in the disciplinary process, the record in this case lacks any evidence of mitigating factors.

III.

In summary, Rhodes’s repeated neglect of client matters and noncommunication with clients, his financial misconduct involving $5,000 in client funds, his failure to obey the conditions of the prior disciplinary probation, and his repeated failure to cooperate with the disciplinary process each warrant severe discipline by themselves. When the weight of these violations are combined and considered in light of his prior professional discipline for similar misconduct and the complete lack of mitigating facts in the record of this case, we conclude that the appropriate sanction in this case is disbarment. Therefore, we hold that the appropriate discipline in this case is disbarment.

Accordingly, we order that:

1. Bradley C. Rhodes be disbarred from the practice of law, effective immediately;

2. Rhodes shall comply with the requirements of Rule 26 of the Minnesota Rules of Lawyers Professional Responsibility; and

3. Rhodes shall pay to the Director the sum of $900 in costs pursuant to Rule 24 of the Minnesota Rules of Lawyers Professional Responsibility.

So ordered.

ANDERSON, Russell A., C.J., took no part in the consideration or decision of this matter.

Messerli-Kramer Judgments

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This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1482

Midland Credit Management, Inc.,

Appellant,

vs.

John Resler,

Respondent.

Filed May 25, 2004

Affirmed

Randall, Judge

Washington County District Court

File Nos. C6-02-640

Derrick N. Weber, Jeffrey J. Cohen, Messerli & Kramer, P.A., 3033 Campus Drive, Suite 250, Plymouth, MN 55441 (for appellant)

Thomas J. Lyons Sr., Thomas J. Lyons & Associates, 342 East County Road D, Little Canada, MN 55117; and

Thomas J. Lyons Jr., John H. Goolsby, Consumer Justice Center, P.A., 342 East County Road D, Little Canada, MN 55117 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.

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

RANDALL, Judge

On appeal from an order granting a motion to vacate a default judgment, appellant argues that: (1) the district court erred in ruling that a letter respondent sent constituted an “answer;” (2) respondent’s motion to vacate, brought more than a year after default judgment was entered, was not timely; and (3) the court abused its discretion in vacating the default judgment where respondent had not provided a meritorious defense. We affirm.

FACTS

On December 28, 2001, appellant Midland Credit Management, Inc., served respondent John Resler with a summons and complaint in Washington County. The complaint alleged that respondent owed appellant a total of $4,048.90 including $1,793.65 as the principal amount, and $2,255.25 in accrued interest. In a letter from respondent to appellant dated January 13, 2002, respondent stated:

This is my response to your summons that I received on 12/28/01. I had previously been paying Messerli and Kramer $115.00 per month for the debt I owe to Midland Credit Management, Inc. I am a part-time student paying my tuition with no financial assistance. I also have a monthly car payment and other expenses. Considering the pitifully low income that I receive from my current employer, I was unable to afford this amount. However, I have every intention of clearing myself of this debt and building my credit again.

At this present date, I can agree to pay $30.00 a month until the principal sum of $1,793.65 is paid, then $60.00 a month, with the continued interest dropped entirely. Keep in mind, I always have the option of filing bankruptcy. Therefore, you would get nothing. My question to you is do you want something or nothing?

On January 23, 2002, appellant executed and filed an Affidavit of No Answer, Identification, Non-Military Status, Amount Due and Costs and Disbursements, which stated that respondent had not answered or otherwise defended the action. On February 8, 2002, the district court entered a default judgment against respondent in the amount of $4,492.27. This amount constituted $4,126.77 in principal and prejudgment interest plus $365.50 in costs and disbursements. That same day, a copy of the judgment was mailed to each party at their last known residence.

In July 2002, respondent, now represented by counsel, commenced a lawsuit against appellant’s attorneys’ law firm Messerli & Kramer, P.A., and attorneys Derrick N. Weber, Jeffrey J. Cohen, and Jefferson C. Pappas, in federal district court for alleged violations of the Fair Debt Collection Practices Act. The defendants brought a motion to dismiss. The federal court denied in part, and granted in part, the defendants’ motion to dismiss. The federal court agreed to entertain respondent’s claims based on the alleged defective garnishment notice. But the federal court stated that in order to challenge the alleged deceitful procedure by which the judgment was obtained, respondent must file a motion to vacate the judgment in state court.

On April 17, 2003, respondent filed a motion in Washington County District Court to have the February 8, 2002 judgment vacated. On May 7, 2003, respondent filed an amended motion to vacate the judgment. Respondent argued that appellant failed to fully and accurately inform the court that respondent had responded to appellant’s pleadings. Respondent also asserted that appellant failed to accurately report the principal balance respondent owed to appellant. Respondent argued that he paid $448.41 toward the principal, but that it was, unknown to him, allocated toward attorney fees. Respondent also argued that appellant inaccurately told the district court that the case involved “reasonable attorney’s fees of $.00.”

On August 1, 2003, the district court granted respondent’s motion and ordered the judgment vacated. The court found that respondent answered appellant’s pleadings and that the default judgment was “partially based” on the representation that respondent failed to answer. The district court also disregarded appellant’s argument that respondent’s motion to vacate was untimely because it was filed more than one year after the default judgment was entered. The court stated:

Furthermore, Plaintiff’s claim of one year and three months past judgment issuance does not hold up in this Court. Defendant, John Resler, first brought his claim to Federal District Court on July 31, 2002. A mere four months following the entry of judgment. Federal Court found the proper venue was in State Court where the judgment was entered.

The district court’s judgment was entered on August 8, 2003. This appeal follows.

D E C I S I O N

Respondent’s arguments on the merits, and the gravity of allegations against a law firm, our not our issue on appeal. Our review is confined to whether, on these facts, the district court abused its discretion in vacating the default judgment. The trial is a long way off.

Under Minn. R. Civ. P. 60.02 a court may relieve a party of a final judgment on the basis of mistake, inadvertence, surprise, excusable neglect, or “any other reason justifying relief from the operation of the judgment.” Onreview, this court views the record in the light most favorable to the district court’s decision. Bentonize, Inc. v. Green, 431 N.W.2d 579, 582 (Minn. App. 1988). Absent a clear abuse of discretion, this court upholds the district court’s decision. Lund v. Pan Am. Machine Sales, 405 N.W.2d 550, 552 (Minn. App. 1987).

A party seeking relief under rule 60.02 must demonstrate:

(1) a reasonable case on the merits, (2) a reasonable excuse for the failure to act, (3) that it acted with due diligence after notice of the entry of judgment, and (4) that there would be no substantial prejudice to the opposing party if the motion to vacate is granted.

Imperial Premium Fin., Inc. v. G.K. Cab. Co., Inc., 603 N.W.2d 853, 857 (Minn. App. 2000) (citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964)). All four of the Finden factors must be satisfied in order to justify relief under the rule. Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988); Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn.1988). A strong showing on three of the four factors can outweigh a weak showing on one. Armstrong v. Heckman, 409 N.W.2d 27, 29 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). Courts favor a liberal application of these factors to further the policy of resolving cases on their merits. Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App.1994), review denied (Minn. Jun. 2, 1994) (emphasis added).

1. Respondent’s Letter

Appellant first argues that the district court erred in ruling that respondent’s letter constituted an answer. Specifically, appellant argues that the letter contained no defenses to the allegations, and did not admit or deny any of the allegations. We disagree.

Respondent (a layman) submitted a letter to appellant’s attorneys in response to appellant’s summons and complaint. The letter stated:

This is my response to your summons that I received on 12/28/01. I had previously been paying Messerli and Kramer $115.00 per month for the debt I owe to Midland Credit Management, Inc. I am a part-time student paying my tuition with no financial assistance. I also have a monthly car payment and other expenses. Considering the pitifully low income that I receive from my current employer, I was unable to afford this amount. However, I have every intention of clearing myself of this debt and building my credit again.

At this present date, I can agree to pay $30.00 a month until the principal sum of $1,793.65 is paid, then $60.00 a month, with the continued interest dropped entirely. Keep in mind, I always have the option of filing bankruptcy. Therefore, you would get nothing. My question to you is do you want something or nothing?

The district court determined that respondent, for a layman, had adequately answered the allegations in appellant’s complaint. Respondent argues further that even if the letter does not constitute an answer he “otherwise defended” within the time allowed under Minn. R. Civ. P. 55.01 (2002). name="_ftnref2" title="">

Under Minn. Civ. P. 55.01,

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend within the time allowed therefor by these rules or by statute, and that fact is made to appear by affidavit, judgment by default shall be entered against that party as follows . . .

(emphasis added). It was within the district court’s discretion to find that respondent’s letter answered “or otherwise defended” against appellant’s compliant. We agree that respondent’s letter, from a reasonable layman’s standpoint, can easily be construed as a defense to the initial complaint.

From the beginning, respondent disputed the amount owed to appellant. In his letter, respondent disputed the amount of interest respondent owed appellant. The complaint against respondent alleged him owing $4,048.90, 60% consisting of accrued interest on the principal in the amount of $2,255.25, and 40% of that amount consisting of real debt in the amount of $1,793.65. In his letter to appellant’s attorneys, respondent agreed to pay the principal amount, and then make monthly $60 payments “with the continued interest dropped entirely.” That is a dispute by respondent over the issue of the debt and interest accruing on the debt. Appellant now contends that respondent owes approximately $6,000 the majority of which constitutes accrued interest. We find as the district court did, respondent’s letter answered or otherwise defended the allegations against him.

2. Timeliness

Appellant argues that respondent’s motion to vacate was untimely. We disagree. Minnesota Rule of Civil Procedure 60.02 provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representatives from a final judgment (other than a marriage dissolution decree), order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect;

. . .

(c) Fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an adverse party;

. . .

(f) Any other reason justifying relief from the operation of the judgment.

A motion for relief under 60.02(a) and (c) must be brought within one year from

entry of judgment. Minn. R. Civ. P. 60.02. Under 60.02(f), the time for bringing a motion to vacate is within a “reasonable time.” See generally Minn. R. Civ. P. 60.02. If a party’s reason for vacating a judgment falls under a specified ground, he or she may not avoid the one-year time limit by asserting that 60.02(f) is applicable. Chapman v. Special School District No. 1, 454 N.W.2d 921, 924 (Minn. 1990) (“Clause (f) has been designated a residual clause, designed only to afford relief in those circumstances exclusive of the specific areas addressed by clauses (a) through (e).”). Relief under clause (f) is available only in exceptional circumstances and where grounds for granting it do not fall under one of the first three clauses. Id.

What constitutes a reasonable time is determined in each case by considering the facts and circumstances before the court. Bode v. Minnesota Dept. of Natural Resources, 612 N.W.2d 862, 870 (Minn. 2000). Exceptional circumstances warranting relief under clause (f) have been found where the severity of the injury was impossible to determine within the one-year time limit, and where there is insufficient evidence to prove damages. See, e.g., Simons v. Schiek’s, Inc., 275 Minn. 132, 138, 145 N.W.2d 548, 552 (1966); Wiethoff v. Williams, 413 N.W.2d 533, 537 (Minn. App. 1987); Qualy v. MacDonald, 395 N.W.2d 423, 425-26 (Minn. App. 1986), review denied (Minn. Dec. 23, 1986). In contrast, relief under clause (f) was found inappropriate for attorney neglect or misconduct. See, e.g., Chapman, 454 N.W.2d at 923-24 (client did not learn that action was dismissed until attorney was suspended, 3 1/2 years after dismissal); Gould v. Johnson, 379 N.W.2d 643, 649 (Minn. App. 1986) (attorney careless in mistakenly allowing client to sign stipulation), review denied (Minn. Mar. 14, 1986).

Here, respondent filed its amended motion to vacate over one year after the default judgment was entered. Respondent brought his motion under rule 60.02(a) and (f). The district court found that respondent was timely because he brought a claim in federal court within four months after the judgment was entered. Appellant argues that respondent’s motion fell under 60.02(c), and therefore, respondent was effectively barred from relief because of the one-year time limit under that section of the statute. Although technically respondent did not go into federal court to move to vacate the judgment, we conclude “there was no such motion to make in federal court!” As the federal court pointed out, respondent’s motion to vacate had to be made in state court. Respondent was doing the best that he could. It was not clearly erroneous for the district court to find that the respondent’s lawsuit filed in federal court within four months after the judgment complied with the one-year statute in spirit. See Minn. R. Civ. P. 52.01 (stating that we review a district court’s findings of fact to determine if they were clearly erroneous).

Appellant also argues that the circumstances of this case do not constitute exceptional circumstances qualifying respondent for relief under 60.02(f). Contrary to appellant’s assertion that respondent’s motion could only be brought under 60.02 (a) or (c), we conclude that it could come in under 60.02 (f), which has no one-year time bar. Clause (f) is a residual clause for reasons justifying relief other than the reasons specified. The other circumstances justifying relief is the above-described posture, the lawsuit filed in federal court within four months of the judgment being entered, the federal court sending respondent back to state court, and then the motion to vacate. The district court did not err by concluding that respondent’s motion was timely.

3. Abuse of Discretion

Appellant argues that respondent failed to meet the Finden factors, and that the district court erred by failing to make factual findings regarding the four factors. Respondent argues that he made a strong showing on each of the four factors.

Default judgments are to be “liberally” reopened to promote resolution of cases on the merits. Galatovich v. Watson, 412 N.W.2d 758, 760 (Minn. App. 1987). A party moving for relief from a judgment must (1) have a reasonable defense on the merits; (2) have a reasonable excuse for its failure to act; (3) have acted with due diligence; and (4) show that no substantial prejudice will result to the other party if the default judgment is vacated. Conley v. Downing, 321 N.W.2d 36, 40 (Minn. 1982) (citing Finden, 268 Minn. at 271, 128 N.W.2d at 750. But when the district court fails to address the Finden factors, our standard of review is de novo. Carter v. Anderson, 554 N.W.2d 110, 115 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996). In its order, the district court did not specifically label how respondent satisfied the factors. That would have been helpful, but the record is adequate to determine if respondent satisfied the factors.

With respect to the first factor, the record demonstrates that respondent has a reasonable claim on the merits. Appellant argues that respondent failed to present a meritorious defense to the merits because respondent conceded that he owed the debt and did not assert any defense to the action in his letter. In his letter, respondent stated that he did not have any money and that he would not pay any further accrued interest on the principal. The assertions in respondent’s letter arguably constitute a meritorious defense, at least to the amount of accrued interest owed, and accrued interest is a significant part of the debt. See Charson v. Temple Israel, 419 N.W.2d 488, 491-92 (Minn. 1988) (stating that a claim need only be “debatably” meritorious to satisfy this factor).

Regarding the second factor, the district court found that respondent’s lawsuit filed in federal court within four months of judgment excused respondent’s failure to act. Although appellant disputes this finding, we agree with the district court’s resolution of this factual issue.

With respect to the third factor, the record demonstrates that respondent acted with due diligence after notice of entry of judgment by filing his lawsuit in federal court within four months of the default judgment. The district court determined that appellant brought his claim within four months of the judgment. Roe v. Widme, 191 Minn. 251, 253, 254 N.W. 274, 275 (1934) (stating that the district court determines the factual question of whether a party acted with due diligence in moving to vacate a default judgment). We agree with the district court that respondent acted (in the spirit of the law) within the time required when he filed his lawsuit in federal court. Simons, 275 Minn. at 138, 145 N.W.2d at 552 (stating that due diligence depends on all the facts and circumstances involved in the individual case).

Finally, no evidence in the record indicates prejudice other than the normal expense of delay of litigation. “[T]he delay and expense of additional litigation, without more, do not create sufficient prejudice to defeat a motion to vacate.” Imperial Premium Fin., 603 N.W.2d at 858.

Respondent satisfied the requirements for vacating a judgment. See Kemmerer, 513 N.W.2d at 841 (stating that courts favor a liberal application of these factors to further the policy of resolving the case on the merits). Applications for relief are addressed to the discretion of the district court, and appellate courts interfere only when that discretion has clearly been abused. Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973). Cf. Hearne v. Waddell, 341 N.W.2d 876, 877 (Minn. 1984) (abuse of discretion found when district court reopened default as to individual defendant but refused to reopen as to corporate defendant with similar defense and excuse).

We conclude, viewing the record in the light most favorable to the district court decision, the district court did not abuse its discretion in granting respondent’s motion to vacate the default judgment.

Affirmed.

Sale of Home-Mental Illness

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1818

In re Conservatorship of

Ruth V. Hopkins,

Protected Person.

Filed September 18, 2007

Affirmed

Parker, Judge*

Hennepin County District Court

File No. 27-P8-97-1381

Jennie M. Brown, 17905 Cascade Drive, Eden Prairie, MN 55347 (for appellant Ruth Hopkins)

Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, Chartered, 2500 West County Road 42, Suite 190, Burnsville, MN 55337 (for respondent Carol S. Giuliani)

Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

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

PARKER, Judge

Appellant challenges a July 2006 district court order discharging respondent-conservator, arguing that her nursing home did not have authority to submit a receipt on her behalf for the balance due on her conservatorship accounts, the condition precedent for the conservator’s discharge. We affirm.

D E C I S I O N

In 1997, the district court appointed respondent Carol S. Giuliani as co-guardian of the person and sole conservator of the estate of appellant Ruth Hopkins. Appellant has a history of mental illness that manifests itself in a fixed false belief that she can communicate with other species, particularly mice and fruit flies. Despite appellant's illness, her capacity to make medical decisions was restored in June 2003.

Appellant possessed a life estate in a house previously owned by her mother. In October 2003, respondent filed a petition to sell this real estate, claiming that appellant’s personal property was insufficient to pay debts and other charges against the estate, or to provide for appellant’s support and maintenance. Respondent alleged that it was in the best interests of appellant to sell the real estate because appellant was no longer able to live independently at home.

In May 2004, the district court granted respondent’s petition to sell the real estate, and the home was sold in September 2004. This court affirmed the district court’s denial of appellant’s motion to vacate the May 2004 order allowing the sale of the real estate. See In re Conservatorship of Hopkins, 2005 WL 1514441 (Minn. App. June 28, 2005).

In February 2006, the district court heard appellant’s petition for an order restoring her to capacity as to her person and estate. During the same hearing, respondent petitioned for an order allowing her fifth, sixth, seventh, and final accounts and discharging her as conservator. Appellant objected to the accounts on the ground that respondent unconstitutionally deprived her of her property.

In May 2006, the district court filed an order for termination of guardianship and conservatorship, finding that a guardian or conservator would not be of any further assistance to appellant. In a separate order, the court approved respondent’s fifth, sixth, and seventh accounts. The court amended respondent’s final account and concluded that total receipts were $64,795.47, total disbursements were $63,527.88, and that the balance due appellant was $1,267.59, consisting of a computer, desk, chair, and $473.83 in cash. The district court ordered that respondent conservator be discharged upon filing a receipt from appellant for the balance due.

In July 2006, after appellant refused to sign the check for the remaining balance issued by respondent, respondent placed the remaining $473.83 balance in appellant’s trust account at Chateau Health Center (CHC), where she resided. Acting on behalf of appellant, an employee of the CHC filed a receipt with the district court for the balance due from respondent’s final account of May 2006. The district court discharged respondent as conservator. This appeal followed.

Discharge of respondent-conservator

Appellant argues the district court abused discretion by (1) allowing CHC to accept appellant’s balance-due funds and place them into her trust account after she had originally refused them; and (2) accepting a receipt from CHC for the balance due as its basis for discharging respondent as conservator. This court reviews decisions related to the best interests of protected persons for an abuse of discretion. In re Conservatorship of Brady, 607 N.W.2d 781, 784 (Minn. 2000). The district court’s findings will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; see also In re Conservatorship of Moore, 409 N.W.2d 14, 16 (Minn. App. 1987) (stating that the district court’s approval of a conservator’s accounting for disbursements is reviewed for clear error).

Under Minn. Stat. § 524.5-431(a) (2006), a conservatorship terminates upon order of the court. “The order of termination must provide for expenses of administration and direct the conservator to execute appropriate instruments to evidence the transfer of title or confirm a distribution . . . and to file a final report and a petition for discharge upon approval of the final report.” Id.at (e). The court shall enter a final order of discharge upon the approval of the final report and satisfaction by the conservator of any other conditions placed by the court on the conservator’s discharge. Id. at (f).

Here, the conservator strictly followed the statutory requirements for terminating the conservatorship, and the district court accepted the receipt for discharge filed by the CHC, even though its termination order requested a receipt from appellant. Further, appellant admits that she currently lives at CHC and has control over the funds in her trust account, including the balance due from respondent. While appellant believes she was unjustly deprived of her home, she cannot thwart the discharge of respondent as her conservator when the statutory requirements for discharge have been fulfilled. This appeal attempts to forestall the inevitable, namely, the eventual discharge of respondent as conservator. On this record, the district court did not abuse discretion.

Sale of home

Appellant implies that because the district court ordered the sale of her home due to her mental illness, and then later granted her petition to terminate her guardianship, she was unjustly deprived of her property in violation of due process of law.[1] Appellant made the same argument in her prior appeal, and the district court found that this court had addressed the issue. See In re Conservatorship of Hopkins, 2005 WL 1514441 at *11. Appellant did not seek review of our prior decision. The district court’s decision to apply collateral estoppel will be reversed only upon a demonstrated abuse of discretion. Saudi Am. Bank v. Azhari, 460 N.W.2d 90, 92 (Minn. App. 1990).

The application of collateral estoppel is appropriate where (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given full and fair opportunity to be heard on the adjudicated case. Ellis v. Mpls. Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982).

The record supports the district court’s finding. An examination of the opinion from the prior appeal suggests the same due process issues were raised that appellant presents here. The parties in the prior appeal were the same, they were in privity through the conservatorship, and appellant’s motions and appeal were considered by the relevant courts. Appellant’s counsel concedes that the issues related to the home’s sale have already been litigated. On this record, the district court did not abuse discretion by applying collateral estoppel.

Affirmed.

---

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

[1] Appellant also states she was deprived of due process because she was not given notice about the sale of her home. This argument is not developed in the brief and, therefore, is waived. State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).